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UNIVERSITY LIBRARY 
 
 1924 085 501 231 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known. copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085501231 
 
SELECTION OF LEADING CASES 
 
 EQUITY. 
 
LEADING CASES FOR STUDENTS. 
 
 RANDALL'S LEADING CASES IN EQUITY. 
 
 A Selection of Leading Cases in Equity. With Notes. By A. E. 
 Randaix, Barrister-at-Law, Editor of "Leake on Contracts," &c. 
 1912. 9s. 
 
 SHIRLEY'S LEADING CASES IN THE COMMON LAW. 
 
 A Selection of Leading Cases in the Common Law. With Notes. 
 Eighth Edition. By Riohaed Watson, Barrister-at-Law. 1908. 
 16s. 
 
 " The statements are concise and clear and the cases well selected. . . . The 
 ■work contains a very large amount of useful law, conveniently arranged and 
 clearly and pleasantly presented." — Law Magazine. 
 
 WARBURTON'S LEADING CASES IN CRIMINAL LAW. 
 
 A Selection of Leading Cases in the Criminal Law. With Notes. 
 Fourth Edition. By Heney Wabbubton, Barrister-at-Law. 1908. 
 12s. 6d. 
 
 "The cases are selected with much judgment; they are clearly reported, 
 and (he notes upon them are carefully and accurately written." — Solicitors' 
 Journal. 
 
 PETRIDES' STUDENT'S CASES ILLUSTRATIVE OF 
 ALL BRANCHES OF THE LAW. 
 
 By Philip B. Petbides, Barrister-at-Law. 1910. 10s. 6d. 
 
 11 The hook practically covers the range of subjects read at the Final. The 
 selecti >n of cases is excellent, and we can imagine the book being of great use for 
 revision purposes." — Law Notes. 
 
 CAPORN'S CASES ON THE LAW OF CONTRACT. 
 
 Paet I. Principles of Contract. Part II. Special Commercial 
 Contracts. By A. C. Capoen, B.A., LL.B., of Sheffield University, 
 •with F. M. Capoen, Tutor to the Incorporated Law Society. 1911. 
 12s. U. 
 
 " A most useful collection of cases prepared by lawyers of wide experience in 
 lecturing and teaching." — Law Times. 
 
 STEVENS & SONS, Ld., 119 & 120, Chancery lane, London. 
 
 
A SELECTION OF 
 
 LEADING CASES IN 
 
 EQUITY. 
 
 Wty &atts. 
 
 (Intended to form a Companion Volume to Shirley's "Leading Cases in the 
 Common Law".) 
 
 BY 
 
 A. E. RANDALL, 
 
 BAEEIBTEE-AT-LAW. 
 
 {Editor of " Leake on Contract!," " Leake' a Law of Property in Land.") 
 
 LONDON: 
 
 STEVENS AND SONS, LIMITED, 
 119 & 120, CHANCEEY LANE. 
 
 TOEONTO : CANADA LAW BOOK COMPANY, LIMITED. 
 PHILADELPHIA: CEOMAETY LAW BOOK COMPANY. 
 
 1912. 
 
loi^'° 
 
PREFACE. 
 
 This volume of leading cases is intended to form 
 a companion volume to Shirley's Leading Cases. 
 Care has been taken, so far as was possible, 
 to avoid covering the same ground, the most 
 pertinent example being the omission of Dering 
 v. Winchelsea {Earl) (1787), 1 Cox, 318, and of 
 liees v. Berrington (1795), 2 Ves. Jr. 540, and the 
 discussion of the law of guarantees, the subject 
 having been undertaken by Mr. Richakd Watson 
 in the Eighth Edition of Shirley, in connection 
 with the leading case of Whitcher v. Hall (1826), 
 5 B. & C. 269; Shirley, Leading Cases, 408. 
 Again, Mr. Watson has discussed assignments 
 under sect. 25 of the Judicature Act, 1873. I 
 have, therefore, shortly considered non-statutory 
 assignments in equity, as he has also dealt with 
 assignments of policies of life insurance. Part- 
 nership offers yet another example of partial 
 discussion. But overlapping has been unavoid- 
 able. Both Mr. Watson and myself have had to 
 present the law relating to the separate estate of 
 married women, and an intelligible note was only 
 possible by adverting to matters common to the 
 
vi PREFACE. 
 
 divergent aspects from which we presented our 
 subject. 
 
 It will be observed that, in many instances, 
 I have not set out statutory provisions at length. 
 It must be remembered that this is a book 
 intended for the use of students, and it is not 
 an encyclopaedia. What a student requires 
 primarily is a generalization ; and I would ask 
 those who would controvert the accuracy of my 
 view, what logical justification exists for insisting 
 upon the reproduction of enactments at length, 
 and at the same time admitting that stating the 
 substance of decided cases, and not reproducing 
 the report at large, is the correct method of 
 discussion. It is sufficient, as it seems to me, 
 that a student should have his attention directed 
 to the fact that there is a statutory power to 
 apply the income of infant's property in mainte- 
 nance by sect. 43 of the Conveyancing Act, 1881, 
 and that there is a statutory power given to the 
 Court, or to the parties, to appoint new trustees. 
 
 I now come to what may be looked upon as 
 an unwarrantable omission. I have not thought 
 it necessary, or indeed desirable, to refer to Lord 
 Cairns' Act. In the first place, the statute does 
 not affect equitable rights but equitable remedies, 
 and a student will only acquire a competent 
 knowledge of the practice by attending in Court 
 as the pupil of the practitioner. We have seen 
 some pretty long swings of the pendulum. Sir 
 
PREFACE. Tii 
 
 George Jessel consistently refused to construe 
 the statute as entitling a modern Ahab to dis- 
 possess his neighbour with or without adequate 
 compensation. In other cases we find Fry, J., 
 and Pearson, J., awarding substantial damages 
 in lieu of an injunction. The view of Sir 
 George Jessel was in substance endorsed in the 
 Court of Appeal in the nineties of the last 
 century, but promises, apparently, to become as 
 unpopular in judicial as it is in political circles. 
 Secondly, the proper place for its discussion is 
 under the title " Jurisdiction," in connection 
 with a case founded upon the well-known rule 
 that the Court of Chancery disclaimed an original 
 jurisdiction to award damages. But the days of 
 divided jurisdictions is over, and litigants are 
 no longer bandied from one Court to another, 
 which it was the primary object of the statute 
 to prevent: see Ferguson v. Wilson (1866), L. R. 
 2 Ch. 77. 
 
 I have sought to indicate, in the preceding 
 paragraphs, the limits of discussion within which 
 I have kept. I have considered cases reported 
 in the March number of the Law Reports. 
 
 Now, a word to the student. The abridge- 
 ments of the leading cases are not intended to 
 be substitutes for the full report of the case. All 
 that I have sought to do is to crystallize the 
 point involved, which the student must con- 
 stantly bear in mind in studying the report at 
 
yiii PREFACE. 
 
 large, and this he should do in every case before 
 reading the notes. 
 
 An index which will defy criticism has not 
 yet appeared. Its utility is bound to depend in 
 some measure upon the personal predilection of 
 the user. There is the old story of a West 
 countryman who failed to find the word "scissors" 
 under the letter "Z" in a dictionary, and indig- 
 nantly asked : " What is the use of the thing 
 without an index ? " 
 
 The abridgements of, and quotations from, 
 cases reported in the Law Reports have been 
 made with the permission of the Council, whose 
 courtesy I desire to acknowledge, and to whom 
 I tender my thanks for the privilege. 
 
 A. E. RANDALL. 
 
 Lincoln's Inn, 
 
 1th March, 1912. 
 
( ix ) 
 
 LIST OF LEADING CASES. 
 
 PAGE 
 
 Ackeoyd v. Smithson (conversion) 50 
 
 Adam v. Newbigging (misrepresentation) 60 
 
 Aldeich v. Coopee (marshalling) 99 
 
 Ashbubnee v. Macguiee (ademption of legacy) 22 
 
 Att.-Gen. v. Manchester and Leeds Ry. (restraining appli- 
 cation to legislature) 3 
 
 Baeolay, In be, Barclay v. Andeew (liability of trustee for 
 
 interest) 201 
 
 Beckfoed v. Tobin (interest on legacy to infant) 87 
 
 Bourne v. Swan and Edqae, Ltd. (passing off) 73 
 
 Beice v. Stokes (liability of trustee for act3 and defaults of 
 
 co-trustee) 193 
 
 Beidson v. Benecke (injunction) 91 
 
 Beitain v. Bossitee (specific performance of a contract partly 
 
 performed) 162 
 
 Beookman v. Bothschild (purchase by person in u, fiduciary 
 
 relation to vendor) 69 
 
 Casboene v. Scaefe (estate of mortgagor) 114 
 
 Chesteefield v. Janssen (catching bargain with expectant 
 
 heir or reversioner) 57 
 
 Coleman v. Melleesh (re-opening settled accounts) 19 
 
 Codetney -a. Williams (set-off in administration) 28 
 
 Cousins' Trusts, In ee (constructive notice) 130 
 
 Curtis v. Perey (relief against non-observance of provisions 
 
 of a statute) 4 
 
 Dalglish v. Jaevie {ex parte injunction) 94 
 
 Deaele v. Hall (priority by notice) 39 
 
 Duffield v. Blwes (gift mortis causff) 80 
 
 Dyer v. Dyer (advancement) 32 
 
i LIST OF LEADING- CASES. 
 
 PAGE 
 
 Elliot v. Merriman (power of trustee to give receipts) 185 
 
 Ellison v. Ellison (voluntary trust) 168 
 
 Eyre v. Shaftesbury (Countess) (guardianship of infants)... 82 
 
 Falcke v. Gray (specifio performance of a contract relating to 
 
 specific chattels) 161 
 
 Farrer v. Lacy Hartland & Co. (foreclosure) 115 
 
 Fletcher u. Ashburner (conversion) 47 
 
 Forbes v. Mofpatt (merger) 102 
 
 Forman v. Hohfray (administration of trading concern) 12 
 
 Fox v. Kaokreth (purchase by trustee of trust estate) 178 
 
 Games v. Bonner (contract to show particular title to land)... 205 
 
 Garth v. Cotton (waste) 213 
 
 Gibbs v. Guild (effect of fraud upon the operation of the Statute 
 
 of Limitations) 76 
 
 Glenorohy (Lord) v. Bosville (executory and executed trusts) 170 
 
 Holro yd v . Marshall (equitable assignment) 36 
 
 Howard v. Harris (terms of redemption) 121 
 
 Howe v. Dartmouth (Lord) '(conversion of residue) 29 
 
 Hughes v. Britannia Permanent Benefit Building Society 
 
 (consolidation of mortgages) Ill 
 
 Huguenin v. Baseley (gift to person in a. fiduciary relation)... 64 
 
 Hulme v. Tenant (separate estate of married woman) 95 
 
 Jackson v. Rowe (purchase for value without notice) 127 
 
 Keech v. Sandford (renewal of lease by person in a fiduciary 
 
 capacity) 179 
 
 j (joint purchases and investments) 182 
 
 Lake v. Craddock 
 Lake v. Gibson 
 
 Learoyd v. Whiteley (negligent investment of trust funds) 195 
 
 Loveridqe v. Cooper (priority by notice) 39 
 
 Mackreth v. Symmons (vendor's lien for unpaid purchase- 
 money) 210 
 
 Malim v. Keighley (precatory trust) 172 
 
LIST OF LEADING CASES. xi 
 
 Maesden's Trust, In ee (fraud upon a power) 142 
 
 Maesh v. Lee (tacking) 109 
 
 Matthews v. Euggles Beise (indemnity of trustee) 188 
 
 May v. Platt (mistake) 105 
 
 Mogqeidqe v. Thackwell (charity) 10 
 
 Noeton, In ee, Noeton v. Noeton (partition) 134 
 
 Peachy v. Someeset (Duke) (relief against forfeiture) 136 
 
 Peaese v. Geeen (liability to account) 16 
 
 Penn v. Baltimoee (Loed) (extra-territorial jurisdiction) 1 
 
 Peeeins v. Bellamy (statutory relief from liability for breach 
 
 of trust) 202 
 
 Pusey v. Pusey (specific delivery of chattels) 43 
 
 Kendall v. Kendall (preserving property in medio) 14 
 
 Robinson v. Pett (remuneration of trustee) 183 
 
 Eose v. Watson (purchaser's lien for instalments of purchase- 
 money) 210 
 
 Eussel v. Russel (equitable mortgage by deposit) 125 
 
 Savage v. Fostee (building upon land of another) 63 
 
 Scott and Alvaeez, In ee | (discretion to refuse specific per- 
 
 Scott v. Alvaeez J formance) 157 
 
 Seton v. Slade (stipulations as to time in sales of real estate)... 208 
 
 Sloman v. Waltee (relief against a penalty) 136 
 
 Someeset (Duke) v. Cooeson (specific delivery of chattels) 43 
 
 Standing v. Bowsing (recalling gift inter vivos) 77 
 
 Stapilton v. Stapilton (compromise and family arrangement) . . 44 
 
 Stbeatfield v. Stbeatfield (election) 52 
 
 Thoenboeough v. Bakee (devolution of mortgagee's interest).. 107 
 
 Thynne (Lady E.) v. Glengall (Eael) (satisfaction) 151 
 
 Tower v. Eons (Loed) (primary liability of personal estate in 
 
 administration of assets) 24 
 
 Townley v. Sheeboene (liability of trustee for acts and de- 
 faults of co-trustee) 193 
 
 Tyeeell v. Bank of London (sale by person standing in » 
 
 fiduciary relation to the purchaser) 69 
 
xii LIST OF LEADING CASES. 
 
 PAGE 
 
 Wake v. Conyers (boundaries) 42 
 
 Walmsley v. Walmsley (account) 21 
 
 Whitaker, In re (paternal jurisdiction) 6 
 
 Wiloocks v. Wilcooes (satisfaction) 149 
 
 Williams v. Sobeell (transfer of mortgages) 113 
 
 Wolverhampton (Corporation) v. Emmons (specific perform- 
 ance of personal contracts) 166 
 
 Woollam v. Hearn (specific performance of a contract with a 
 
 parol variation) 165 
 
( xiii ) 
 
 STATUTES. 
 
 PAOE 
 
 Statute of Uses (27 Hen. VIII. o. 10) 175, 176, 177 
 
 Charitable Trusts Act (43 Eliz. c. 4) 10 
 
 Statute of Frauds (29 Car. II. o. 3) 37, 165 
 
 8. 4 162, 163 
 
 s. 7 35, 174 
 
 e. 8 35 
 
 s. 9 177 
 
 Illusory Appointments Act (1 Will. IV. o. 46) 145 
 
 Administration of Estates Act, 1833 (1 Will. IV. c. 104) 26, 27 
 
 Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76) 139 
 
 Eeal Estate Charges Act, 1854 (17 & 18 Vict. c. 113) 25 
 
 Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35) .... 70, 
 
 186, 187 
 
 Common Law Procedure Act, 1860 (23 & 24 Vict. u. 126) 139 
 
 Larceny Act, 1861 (24 & 25 Vict. c. 96) 199 
 
 Eeal Estate Charges Act, 1867 (30 & 31 Vict. c. 69) 25 
 
 Sales of Reversions Act, 1867 (31 & 32 Vict. c. 4) 58 
 
 Partition Act, 1868 (31 & 32 Vict. c. 40) 134, 135 
 
 Debtors Act, 1869 (32 & 33 Vict. c. 62) 199 
 
 Custody of Infants Act, 1873 (36 & 37 Vict. c. 12) 84 
 
 Judicature Act, 1873 (36 & 37. Vict. c. 66) 15,16, 158 
 
 s. 14 210 
 
 s. 24 3, 16 
 
 „. 25 37, 38, 91, 103, 209 
 
 s. 34 (3) 134 
 
 Lord Selborne's Act (37 & 38 Vict. u. 37) 145 
 
 Partition Act, 1876 (39 & 40 Vict. c. 17) 136 
 
 Eeal Estate Charges Act, 1877 (40 & 41 Vict. u. 34) 25 
 
 Conveyancing Act, 1881 (44 & 45 Vict. c. 41) ...70, 90, 108, 139, 141 
 
 Conveyancing Act, 1882 (45 & 46 Vict. c. 39) 130 
 
 Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27) 83, 84 
 
 Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42) .. 11 
 
 Trustee Act, 1888 (51 & 52 Vict. u. 59) 204 
 
 Lunacy Act, 1890 (53 & 54 Vict. c. 5) 7 
 
 Custody of Children Act, 1891 (54 & 55 Vict. u. 3) 84, 85 
 
xiv STATUTES. 
 
 PAGE 
 
 Conveyancing Act, 1892 (55 & 56 Vict. o. 13) 140, 141 
 
 Trustee Act, 1893 (56 & 57 Vict. c. 53)... 180, 191, 194, 196, 200, 201 
 Trustee Act, 1893, Amendment Act, 1894 (57 & 58 Vict. c. 10)... 197 
 
 Judicial Trustee Act, 1896 (59 & 60 Vict. c. 35) 202 
 
 Land Transfer Act, 1897 (60 & 61 Vict. o. 65) 26, 27, 186 
 
 Money-lenders Act, 1900 (63 & 64 Vict. c. 51) 57, 58 
 
 Public Trustee Act, 1906 (6 Ed. VII. c. 55) 19 
 
 Children Act, 1908 (8 Ed. VII. u . 67) 84 
 
 Conveyancing Act, 1911 (1 & 2 Geo. V. c. 37) 26, 96 
 
 Money-lenders Aot, 1911 (1 & 2 Geo. V. u. 38) 58, 69 
 
( xv ) 
 
 LIST OF CASES CITED. 
 
 PAQB 
 
 Abbott v. S-worder, 4 De Or. & Sm. 448 ; affd. 22 L. J. Ch. 235 - 159 
 Abrahams, Ee, Abrahams v. Abrahams, 77 L. J. Ch. 578 ; 
 
 [1908] 2 Ch. 69 ; 99 L. T. 240 ... 29 
 
 Acheson v. Fair, 3 Dr. & War. 512 ; 2 Con. & L. 208 - - 182 
 
 Acraman v. Bristol Dock Co., 1 Buss. & M. 321 - 95 
 
 Adams v. Adams, 61 L. J. Ch. 237 ; [1892] 1 Ch. 369 ; 94 L. T. 
 
 720; 54 W. E. 42 - - - - 138 
 
 Adams v. Claxton, 6 Ves. 226 - - - 200 
 
 Adams v. Fisher, 3 M. & Cr. 526 ; 7 L. J. Ch. 289 ; 2 Jur. 508 - 16 
 Adams and Perry's Contract, Ee, 68 L. J. Ch. 259 ; [1899] 1 
 
 Ch. 554 ; 80 L. T. 149 ; 47 W. E. 326 - - 187 
 
 Agar v. Fairfax, 17 Ves. 533 - - - 134 
 
 Agar Ellis, Ee, Agar Ellis v. Lascelles, 53 L. J. Ch. 10; 24 
 
 Ch. D. 317 ; 50 L. T. 161 ; 32 W. E. 1 84, 85 
 
 Airey v. Hall, 2 De G. & Sm. 489 ; 12 Jur. 1043 - 18 
 
 Akerman, Ee, Akerman v. Akerman, 61 L. J. Ch. 34; [1891] 
 
 3 Ch. 212 ; 65 L. T. 194 ; 40 W. E. 12 - 29 
 
 Alcock, Ee, Prescott v. Phipps, 23 Ch. D. 372 ; 49 L. T. 240 123 
 Aldborough (Earl) i/.Trye, 7 CI. & F. 436 ; West, 221 57, 68, 129 
 Alder v. Fouracre, 2 Swanst. 489 - - 208 
 
 Alderson, Ee, Alderson v. Peel, 64 L. T. 645 - - 77 
 
 Alderson v. Maddison, 52 L. J. Q. B. 737 ; 8 App. Cas. 473 ; 
 
 49 L. T. 303 ; 31 W. E. 820 - - 80 
 
 Aldrich v. Cooper, 8 Ves. 382 101, 109 
 
 Aldridge, Ee, Aldridge v. Aldridge, 63 L. J. Ch. 465 ; [1894] 
 
 2 Ch. 97 ; 70 L. T. 724 ; 42 W. E. 409 ; 8 E. 189 - 184 
 
 Alexander v. Stanhardt, Walker & Co., 72 L. J. K. B. 490; 
 
 [1903] 2 K. B. 208 - 37 
 
 Aleyn v. Belchier, 1 Eden, 132 - - 143, 149 
 
 Allan v. Backhouse, 2 V. & B. 65 ; affd. Jac. 631 181 
 
 Allan v. Gott. 41 L. J. Ch. 571 ; L. E. 7 Ch. 439 ; 26 L. T. 
 
 412; 20 W. E. 427 - 26 
 
 Allcard v. Skinner, 56 L. J. Ch. 1052 ; 36 Oh. D. 145 ; 57 L. T. 
 
 61 ; 36 W. E. 251 - 46, 68 
 
xvi LIST OF OASES OITED. 
 
 PAGE 
 
 Allen v. Coster, 1 Beav. 202 ; 9 L. J. Ch. 131 - 8 
 
 Allen v. Davis, 4 De G. & 8m. 133 ; 20 L. J. Ch. 44 67 
 
 Alleyn v. Alleyn, 2 Ves. sen. 37 - 151 
 
 Allfrey v. Allfrey, 1 Mac. & G. 87 : 1 H. & Tw. 179 ; 13 Jur. 
 
 269 21, 22 
 
 Allgood v. Merrybent and Darlington Ey., 55 L. J. Ch. 743; 
 
 33 Ch. D. 571 ; 55 L. T. 835 ; 35 W. E. 180 212 
 
 Ames, Re, Ames v. Taylor, 25 Ch. D. 72 ; 32 W. E. 287 184 
 
 Amis v. Witt, 33 Beav. 619 81 
 
 Ancaster (Duke) v. Mayer, 1 Bro. 0. C. 454 22, 115 
 
 Anderson v. Bank of British Columbia, 45 L. J. Ch. 449 ; 2 
 
 Ch. D. 644 ; 35 L. T. 76 ; 24 W. E. 624 - 16 
 
 Anderson v. Elsworth, 3 Giff. 154; 30 L. J. Ch. 922; 7 Jur. 
 
 N. S. 1047 ; 4 L. T. 822 ; 9 W. E. 888 - 59 
 
 Andrew v. Eaeburn, L. E. 9 Ch. 522 ; 31 L. T. 73 ; 22 W. E. 
 
 564 - - 7, 44 
 
 Andrews v. Barnes, 57 L. J. Ch. 694 ; 39 Ch. D. 133 ; 58 L. T. 
 
 748 ; 36 W. E. 705 ; 53 J. P. 4 - 192 
 
 Andrews v. Bousfield, 10 Beav. 511 - 174 
 
 Anon., Dyer, 369 a 175 
 
 Anon., Moo. 554 214 
 
 Anon., 1 Vern. 45 124 
 
 Applebee, Ee, Leveson v. Beales, 60 L. J. Ch. 793 ; [1891] 3 
 
 Ch. 422 ; 65 L. T. 406 ; 40 W. E. 90 - 29 
 
 Appleby, Ee, Walker v. Lever, 72 L. J. Ch. 332 ; [1903] 1 Ch. 
 
 565 ; 88 L. T. 219 ; 51 W. E. 455 202 
 
 Arden v. Arden, 54 L. J. Ch. 655 ; 29 Ch. D. 702 ; 52 L. T. 
 
 610 ; 33 W. E. 593 - 40 
 
 Armistead v. Durham, 11 Beav. 556 - - 93 
 
 Armitage, Ee, Armitage v. Armitage, 63 L. J. Ch. 110; [1893] 
 
 3 Ch. 337 ; 69 L. T. 619 ; 7 E. 290 - 32 
 
 Armorduct Manufacturing Co. v. General Incandescent Co., 
 
 80 L. J. K. B. 1005 ; [1911] 2 K. B. 143 ; 104 L. T. 805 45 
 
 Ashburton (Lord) v. Ashburton (Lady), 6 Ves. 6 49 
 
 Ashton, Ee, Ingram v. Papillon, 66 L. J. Ch. 731 ; [1897] 2 
 
 Ch. 574; 77 L. T. 49; 40 W. E. 138 - 156 
 
 Ashton v. Milne, 3 L. J. Ch. 52 ; 6 Sim. 369 - 122 
 
 Ashworth v. Lord, 57 L. J. Oh. 230 ; 36 Ch. D. 545 ; 58 L. T. 
 
 18; 36 W. E. 440 - 125 
 
 Askham v. Barber, 17 Beav. 37; 22 L. J. Ch. 7G9; 1 W. E. 
 
 279 - 69 
 
 Aspland v. Watt, 20 Beav. 474; 1 Jur. N. S. 168; 3 W. E. 
 
 562 - - - - 199 
 
 Athill, Ee, Athill v. Athill, 50 L. J. Ch. 123 ; 16 Ch. D. 211 ; 
 
 43 L. T. 581 ; 29 W. E. 309 - 100 
 
LIST OF OASES CITED. xvii 
 
 PAGE 
 
 Att.-Gen. v. Avon (Corp.), 3 De G. J. & S. 637 ; 33 L. J. Ch. 
 
 172; 2 N. E. 564; 9 L. T. 187; 11 W. E. 1050 206 
 
 Att.-Gen. v. Birmingham Drainage Board, 50 L. J. Oh. 786 ; 
 
 17 Oh. D. 685 ; 44 L. T. 906 ; 29 W. E. 793 ; 46 J. P. 36 93 
 
 Att.-Gen. v. Birmingham, Tame and Eea District Drainage 
 
 Board, 77 L. J. Oh. 836; [1908] 2 Oh. 551; 98 L. T. 310; 
 
 24 T. L. E. 126 - - - 4 
 
 Att.-Gen. v. Birmingham, Tame and Eea District Drainage 
 
 Board, 79 L. J. Ch. 137; [1910] 1 Ch. 48; 26 T. L. E. 93 - 94 
 Att.-Gen. v. Bowyer, 3 Ves. 714 - 10 
 
 Att.-Gen. v. Bristol (Corp.), 3 Madd. 319 ; affd. 2 J. & W. 294 - 12 
 Att.-Gen. v. Colney Hatch Lunatic Asylum, L. E. 4 Ch. 146; 
 
 19 L. T. 708 ; 17 W. E. 240 - • 92, 94 
 
 Att.-Gen. v. Cox, 3 H. L. C. 240 - 62 
 
 Att-Gen. v. Dodd, 63 L. J. Q. B. 319; [1894] 2 Q. B. 150; 70 
 
 L. T. 660; 42 W. E. 524 ; 58 J. P. 526 ; 10 E. 177 - - 48 
 
 Att.-Gen. v. Gibb, 78 L. J. Ch. 521 ; [1909] 2 Ch. 265 ; 101 
 
 L. T. 16 - 94- 
 
 Att.-Gon. v. Hardy, 1 Sim. N. S. 338; 20 L. J. Ch. 450; 15 
 
 Jur. 441 - 71 
 
 Att.-Gen. v. Leeds (Corp.), 39 L. J. Ch. 711 ; L. E. 5 Ch. 533; 
 
 19 W. E. 19 - - - 92 
 
 Att.-Gen. v. L. & S. W. Ey., 3 De G. & Sm. 439; 13 Jur. 467; 
 
 7 Ey. Oas. 624 - - 92 
 
 Att.-Gen. v. Lucas, 2 Ph. 753; 18 L. J. Ch. 100; 12 Jur. 
 
 1011 87 
 
 Att.-Gen. v. Marlborough (Duke), 3 Madd. 493; 5 Madd. 
 
 280 - - 214 
 
 Att.-Gen. v. Metcalf, 77 L. J. Ch. 261 ; [1908] 1 Ch. 327 ; 97 
 
 L. T. 737; 24 T. L. E. 53 - 94 
 
 Att.-Gen. v. Stamford (Earl), 1 Ph. 737; 10 L. J. Ch. 58; 4 
 
 Jui\ 1102 - 11 
 
 Att.-Gen. v. Stephens, 6 De G. M. & G. Ill ; 25 L. J. Ch. 888 ; 
 
 2 Jur. N. S. 51 ; 4 W. E. 191 - 42 
 
 Att.-Gen. v. Whorwood, 1 Ves. sen. 534 150 
 
 Att.-Gen. v. Wilson, 3 M. & K. 362 ; 3 L. J. Ch. 126 12 
 
 Att.-Gen. v. Windsor (Dean and Canons), 8 H. L. 0. 369; 30 
 
 L. J. Ch. 529 ; 6 Jur. N. S. 833 ; 2 L. T. 678 ; 8 W. E. 477 - 12 
 Att.-Gen. v. Worcester (Bp.), 9 Ha. 328; 21 L. J. C. 25; 16 
 
 Jur. 3 - 11 
 
 Att.-Gen. (Canada) v. Standard Trust Company of New York, 
 
 80 L. J. P. C. 189; [1911] A. 0. 498; 105L.T. 152- 70,72 
 
 Auriferous Properties, Ltd. (No. 2), Ee, 67 L. J. Ch. 574; 
 
 [1898] 2 Ch. 428 ; 79 L. T. 71 ; 47 W. E. 75 29 
 
 Austin v. Chambers, 6 01. & F. 1 - - 67, 70 
 
 Aveling v. Knipe, 19 Ves. 441 - - 183 
 
 k. b 
 
xyiii [LIST OF CASES CITED. 
 
 PAGE 
 
 Averall v. Wade, Lloyd & G. t. Sug. 252 - 101 
 
 Ayles v. Cox, 16 Beav. 23 - 208 
 
 Aylesford (Earl) v. Morris, 42 L. J. Ch. 546 ; L. E. 8 Ch. 484 ; 
 
 28 L. T. 541 ; 21 W. B. 424 58, 60, 61 
 
 Aylwardv. Lewis, [1891] 2 Ch. 81; 64 L. T. 250; 39 W. E. 
 
 552 - in 
 
 Backhouse v. Charlton, 8 Ch. D. 444 ; 26 W. E. 504 127 
 
 Baddeley v. Baddoloy, 48 L. J. Ch. 36 ; 9 Ch. D. 113 ; 38 L. T. 
 
 906; 26 W. E. 850 - 169 
 
 Badman and Bosanquet's Case, 45 Ch. D. 16; 63 L. T. 423; 
 
 39 W. E. 25 - - - 46 
 
 Baggett v. Manx, 1 Coll. 138; 13 L. J. Ch. 228; 8 Jur. 391; 
 
 and. 1 Ph. 627 ; 15 L. J. Ch. 262 ; 10 Jur. 213 96 
 
 Bagloy, Ee, 80 L. J. K. B. 168 ; [1911] 1 K. B. 317 - 46 
 
 Bagnall v. Carlton, 47 L. J. Ch. 30 ; 6 Ch. D. 371 ; 36 L. T. 
 
 730; 26 W. E. 71 - 159 
 
 Bagnall v. Villar, 48 L. J. Ch. 695; 12 Ch. D. 812 ; 28 W. E. 
 
 242 - - - 118 
 
 Bagot v. Bagot, 32 Beav. 509 : 33 L. J. Ch. 116 ; 9 Jur. N. S. 
 
 1022 ; 9 L. T. 217 ; 12 W. E. 35 ; 2 N. E. 297 215 
 
 Bailey v. Barnes, 63 L. J. Ch. 73; [1894] 1 Ch. 25 ; 69 L. T. 
 
 542; 42 W. E. 66 ; 7 E. 9 ' 131 
 
 Bailey v. Bichardson, 9 Ha. 734 104, 132 
 
 Bainbrigge v. Moss, 3 Jur. N. S. 58 ; affd. 3 Jur. N. S. 62, n. - 45 
 Baker, Ee, Collins v. Ehodes, 51 L. J. Ch. 315 ; 20 Ch. D. 230 ; 
 
 45 L. T. 658 ; 30 W. E. 858 - 76 
 
 Baker *. Bradley, 7 De G. M. & G. 597 ; 25 L. J. Ch. 7 ; 2 
 
 Jur. N. S. 98 ; 4 W. E. 78 66 
 
 Baker v. Monk, 4 Do G. J. & S. 388 ; 10 Jur. N. S. C91 ; 10 
 
 L. T. 630; 12 W. E. 779 58 
 
 Balfour v. Scott, 6 Bro. P. 0. 550 56 
 
 Baker v. Sebright, 49 L. J. Oh. 65 ; 13 Ch. D. 179 ; 41 L. T. 
 
 614; 28 W. E. 177 214 
 
 Baker v. White, 44 L. J. Ch. 651 ; L. E. 20 Eq. 166 ; 33 L. T. 
 
 347 ; 23 W. E. 670 - 175, 177 
 
 Baker and Sermon's Contract, Ee, 76 L. J. Ch. 235 ; [1907] 
 
 1 Ch. 238; 96 L. T. 110 - 206 
 
 Balkis Consolidated Co., Ltd. v. Tomkinson, 63 L. J. Q. B. 
 
 134; [1893] A. 0. 396; 69 L. T. 598; 42 W. E. 204; 1 E. 
 
 178 - 61 
 
 Ball v. Kemp Welch, 49 L. J. Ch. 528; 14 Ch. D. 512; 43 
 
 L. T. 116 - - 136 
 
 Banister, Ee, Broad v. Munton, 48 L. J. Ch. 837 ; 12 Ch. D. 
 
 131 ; 40 L. T. 828 ; 27 W. E. 826 62 
 
LIST OF CASES CITED. xix 
 
 TAGE 
 
 Bank of Montreal v. Stuart, 80 L. J. P. C. 75 ; [1911] A. C. 
 
 120 ; 103 L. T. 641 ; 27 T. L. E. 117 - - 66, 68, 98 
 
 Bank of New South Wales v. O'Connor, 58 L. J. P. 0. 82 ; 14 
 
 App. Oas. 273; 60 L. T. 467 ; 38 W. E. 465 - 127 
 
 Bankes v. Small, 56 L. J. Oh. 832 ; 36 Ch. D. 716; 57 L. T. 
 
 292 ; 35 W. E. 765 - 5 
 
 Bannatyne v. Mclver, 75 L. J. K. B. 120 ; [1906] 1 K. B. 103 ; 
 
 94 L. T. 150 ; 54 W. E. 293 - - - 100, 191 
 
 Banner v. Berridge, 50 L. J. Ch. 630; 18 Ch. D. 254 ; 44 L. T. 
 
 680 ; 29 W. E. 844 123 
 
 Barber's Settled Estates, Ee, 50 L. J. Ch. 769 ; 18 Oh. D. 624; 
 
 45 L. T. 433 ; 29 W. E. 909 - 181 
 
 Barham v. Clarendon (Earl), 10 Ha. 126 ; 22 L. J. Ch. 1057 ; 
 
 17 Jur. 336 ; 1 W. E. 96 169 
 
 Barker, Ee, 50 L. J. Ch. 334 ; 17 Ch. D. 241 ; 44 L. T. 33 ; 29 
 
 W. E. 873 - - 135 
 
 Barker v. Cox, 46 L. J. Ch. 62 ; 4 Ch. D. 464 ; 35 L. T. 662 ; 
 
 25 W. E. 138 131 
 
 Barnard v. Hunter, 2 Jur. N. S. 1213 ; 5 W. E. 92 128 
 
 Barnes v. Eacster, 1 T. & 0. Ch. 401 ; 11 L. J. Ch. 228 ; 6 Jur. 
 
 595 - 101 
 
 Barnes v. Ross, [1896] A. C. 623 8 
 
 Barnewell v. Ironmonger, 1 Dr. & Sm. 242; 30 L. J. Ch. 13; 
 
 8 W. E. 740 - 212 
 
 Barrack v. MeCullooh, 3 K. & J. 110 ; 26 L. J. Ch. 105 ; 2 Jur. 
 
 N. S. 180 ; 5 W. E. 38 - 36, 97 
 
 Barratt v. Wyatt, 30 Beav. 442 ; 31 L. J. Ch. 652 ; 8 Jur. N. S. 
 
 1045 ; 10 W. E. 454 189 
 
 Barrett v. Eing, 2 Sm. & G. 43 207 
 
 Barrow-in-Furness Corp. and Eawlinson's Contract, Ee, 72 L. J. 
 
 Ch. 233 ; [1903] 1 Ch. 339 ; 87 L. T. 724 ; 51 W. E. 248 187 
 Barrow's Case, 49 L. J. Ch. 498 ; 14 Ch. D. 432 ; 41 L. T. 755 ; 
 
 28 W. E. 270 129, 130 
 
 Basingstoke (Corp.) v. Bolton (Lord), 3 Drew, 50; 3 V. E. 
 
 142 - 43 
 
 Bassano v. Bradley, 65 L. J. Q. B. 479 ; [1896] 1 Q. B. 645 • 
 
 74 L. T. 553 ; 44 W. E. 576 - 12 
 
 Bassett v. Noseworthy, Eep. t. Pinch, 102 128 
 
 Bastin v. Bidwell, 18 Ch. D. 238; 44 L. T. 742 r.iS 
 
 Bate v. Bank of England, 9 Jur. 545 66 
 
 Bate v. Scales, 12 Ves. 402 201 
 
 Bateman (Lady) v. Paber, 67 L. J. Ch. 130 ; [1898] 1 Ch. 144 - 96 
 Bateman v. Hunt, 73 L. J. K. B. 782 ; [1904] 2 K. B. 530 113 
 
 Bates, Ee, Hodson v. Bates, 76 L. J. Ch. 29; [1907] 1 Ch ">2 ■ 
 
 95 L. T. 753; 23 T. L. E. 15 ' 31 
 
 Bates v. Brothers, 2 Sm. & G. 509 ; 23 L. J. Ch. 150, 7S2 ■ 18 
 
 Jur. 715; 2 W. E. 636; 2 Eq. E. 803 - . 128 
 
xx LIST OF OASES CITED. 
 
 PAGE 
 
 Bath v. Standard Land Co., 80 L. J. Oh. 426; [1911] 1 Ch. 
 
 618; 104 L. T. 867; 27 T. L. E. 393 - 72,185 
 
 Bathurst v. Murray, 8 Ves. 74 - - - 87 
 
 Batstone v. Salter, 44 L. J. Ch. 760; L. E. 10 Ch. 431; 33 
 
 L. T. 4 ; 23 W. E. 816 - - - 34, 35 
 
 Batthyany v. Walford, 56 L. J. Ch. 881 ; 36 Ch. D. 269 ; 57 
 
 L. T. 206; 35 W. E. 814 ... 2 
 
 Baud v. Fardell, 7 De G. M. & G. 628 ; 25 L. J. Ch. 21 ; 1 Jur. 
 
 N. S. 1214; 4 W. E. 40 - - 198 
 
 Baudains v. Eichardson, 75 L. J. P. C. 57 ; [1906] A. C. 169 ; 
 
 94 L. T. 290 ; 22 T. L. E. 333 68 
 
 Baxendale v. Seale, 19 Beav. 601; 24 L. J. Ch. 385; 1 Jur. 
 
 N. S. 581 - - 106 
 
 Bayden v. "Watson, 12 L. J. Ch. 277; 7 Jur. 245 47 
 
 Bayly v. Wilkins, 3 Jo. & L. 630 71, 72 
 
 Beanland v. Bradley, 2 Sm. & G. 339 ; 2 W. E. 602 - 66 
 
 Beattie v. Ebury (Lord), 41 L. J. Ch. 804; L. E. 7 Ch. 777 ; 
 
 27 L. T. 398 ; 20 W. E. 994 - 79 
 
 Beauclerk (Lord) v. Mead, 2 Atk. 167 - 47 
 
 Beaufort (Duke) v. Glynn, 3 Sm. & G. 213 62, 207 
 
 Beaumont, Ee, Beaumont v. Ewbank, 71 L. J. Ch. 478 ; [1902] 
 
 1 Ch. 889 ; 86 L. T. 410 ; 50 W. E. 389 81 
 Beddington v. Baumaun, 72 L. J. Ch. 155; [1903] A. C. 13; 
 
 87 L. T. 658 ; 51 W. E. 383 - ' 24 
 
 Beddoe, Ee, Downes v. Cottam, 62 L. J. Ch. 233; [1893] 1 Ch. 
 
 547 ; 68 L. T. 595 ; 41 W. E. 177 ; 2 E. 223 - 192 
 
 Beech v. Keep, 18 Beav. 285 ; 23 L. J. Ch. 539 ; 18 Jur. 971 ; 
 
 2 W. E. 316 - - 78 
 Bell v. Gardiner, 4 Man. & G. 11 ; 11 L. J. C. P. 195 ; 4 Scott, 
 
 N. E. 621 ; 1 Dowl. N. S. 683 - 106 
 
 Bell v. Marsh, 72 L. J. Ch. 360 ; [1903] 1 Ch. 52S ; 88 L. T. 
 
 605 ; 51 W. E. 325 . 64 
 
 Bellamy v. Sabine, 2 Ph. 425 ; 17 L. J. Ch. 105 66 
 
 Bending v. Bending, 3 K. & J. 257 ; 26 L. J. Ch. 469 ; 3 Jur. 
 
 N. S. 535 ; 5 W. E. 435 55 
 
 Benett v. Wyndham, 4 De G. F. & G. 259 - 191 
 
 Beningfieldw. Baxter, 56 L. J. P. C. 13; 12 App. Cas. 167- 
 
 56 L. T. 127 178 
 
 Bennet v. Bennet, 10 Ch. D. 474 ; 40 L. T. 378 ; 27 W. E. 573 33 
 Bennett v. Cooper, 9 Beav. 252 ; 15 L. J. Ch. 315 ; 10 Jur. 507 37 
 Bennett v. Merriman, 6 Beav. 360 - . 46. 
 
 Benson v. Benson, 1 P. Wms. 130 - - 51 
 
 Benson v. Lamb, 9 Beav. 502; 15 L. J. Ch. 218 - 209 
 
 Bentley v. Mackay, 15 Beav. 12 - 37 
 
 Bentley v. Mackay, 4 De G. P. & J. 279 ; 31 L. J. Ch. 709 • 
 
 10 W. E. 873 I i 66 . 
 
LIST OF CASES CITED. xxi 
 
 PAGE 
 
 Berry v. Keen, 51 L. J. Ch. 912 16 
 
 Berwick & Co. v. Price, 74 L. J. Oh. 249; [1905] 1 Ch. 632 ; 
 92 L. T. 110 - - 133 
 
 Besant, Be, 48 L. J. Ch. 497; 11 Ch. D. 508; 40 L. T. 469; 
 
 27 W. B. 741 - - 85 
 
 Besant v. Wood, 48 L. J. Ch. 497 ; 12 Ch. D. 605 ; 40 L. T. 
 
 445 - 84 
 
 Bethune v. Kennedy, 1 M. & Cr. 114 31 
 
 Betjemann v. Betjemann, 64 L. J. 641 ; [1895] 2 Ch. 474 ; 73 
 
 L. T. 2 ; 44 W. B. 182 ; 12 B. 455 - 76, 77 
 
 Bevan v. "Webb, 74 L. J. Ch. 300; [1905] 1 Ch. 620; 93 L. T. 
 
 298 ; 53 W. E. 651 " 181 
 
 Beverley (Corp.) v. Att.-Gen., 6 H. L. C. 610; 27 L. J. Ch. 
 
 66: 3 Jur. N. S. 871 12 
 
 Beyfus v. Lawley, 72 L. J. Ch. 781; [1903] A. C. 411 ; 89 
 
 L. T. 309 ; 51 W. E. 150 - 145, 190 
 
 Beyfus and Masters" Contract, In re, 39 Oh. D. 110 ; 59 L. T. 
 
 740 ; 37 W. E. 261 208 
 
 Beynon v. Cook, L. E. 10 Ch. 389 ; 32 L. T. 353 ; 23 W. E. 
 
 531 - 59 
 
 Bickerton v. Walker, 55 L. J. Ch. 227 ; 31 Ch. D. 151 ; 53 L. T. 
 
 731 ; 34 W. E. 141 - 113, 212 
 
 Biggs v. Hoddinott, 67 L. J. Ch. 540 ; [1898] 2 Ch. 307 ; 79 
 
 L. T. 201 ; 47 W. E. 84 - 122 
 
 Bignell, Ee, Bignell v. Chapman, 61 L. J. Ch. 334 ; [1892] 
 
 1 Ch. 59 ; 66 L. T. 36 ; 40 W. E. 305 184 
 
 Billage v. Southee, 9 Ha. 534 ; 21 L. J. Ch. 472 ; 16 Jur. 
 
 188 67 
 
 Binnington v. Harwood, T. & E. 477 124 
 
 Birch, Ee, 17 Beav. 358 138 
 
 Bird v. Wenn, 55 L. J. Ch. 722 ; 33 Ch. D. 215 ; 54 L. T. 933 ; 
 
 34 W. E. 652 - 112 
 
 Birmingham Yinegar Brewery Co. v. Powell, 66 L. J. Ch. 763 ; 
 
 [1897] A. C. 710; 76 L. T. 792 74 
 
 Biss, Ee, Biss v. Biss, 72 L. J. Ch. 473 ; [1903] 2 Ch. 40 ; 88 
 
 L. T. 403 ; 51 W. E. 504 - 180 
 
 Black v. Williams, 64 L.J. Ch. 137; [1825] 1 Ch. 408; 43 
 
 W. E. 346 ; 13 E. 224 - 5 
 
 Black Point Syndicate v. Eastern Concessions, Ltd., 79 L. T. 
 
 658 - 1 , 2, 16 
 
 Blackburn v. Smith, 2 Ex. 783 ; 18 L. J. Ex. 187 - 61 
 
 Blackburn v. Stables, 2 Ves. & B. 367 - 171 
 
 Blaiberg v. Keeves, 75 L. J. Ch. 464 ; [1906] 2 Ch. 175 ; 95 
 
 L. T. 412 ; 54 W. E. 451 - 62 
 
 Blake v. Leigh, Ambl. 306 - 84, 85 
 
 Bland, Ee, Miller v. Bland, 68 L. J. Ch. 745 ; [1899] 2 Ch. 
 
 336 - 30 
 
xxii LIST OF OASES CITED. 
 
 PAGE 
 
 Blandy v. Widmore, 1 P. Wins. 324 - -154 
 
 Blami v. Bell, 2 De G. M. & Q. 775 ; 22 L. J. Oh. 236 ; 16 Jur. 
 
 1103- - - - 30 
 
 Blease v. Burgh, 2 Beav. 221 ; 9 L. J. Oh. 226 - - S» 
 
 Blockley, Ee, Blookley v. Blockley, 54 L. J. Ch. 722 ; 29 Ch. D. 
 
 250; 33 W. E. 777 - 36, 157 
 
 Blount v. Burrow, 1 Ves. Ir. 546 - 80 
 
 BlundeU, Ee, Blundell v. Blundell, 75 L. J. Ch. 561 ; [1906] 
 
 2 Ch. 222; 94 L. T. 818; 22 T. L. E. 570 - 56 
 
 Blundell, Ee, Blundell v. BlundeU, 57 L. J. Ch. 730 ; 40 Ch. D. 
 
 370; 58 L. T. 933 ; 36 W. E. 779 - 189 
 
 Blunt v. Lack, 26 L. J. Ch. 148 ; 3 Jur. N. S. 195 - 56 
 
 Boards, Ee, Knight v. Knight, 64 L. J. Ch. 305 ; [1895] 1 Ch. 
 
 499 ; 72 L. T. 220 ; 43 W. E. 472 ; 13 E. 278 26 
 
 Boehm v. Goodall, 80 L. J. Ch. 86; [1911] 1 Ch. 155; 27 
 
 T. L. E. 106 - - 190 
 
 Bogg v. Midland Baihvay, 36 L. J. Ch. 440; L. E. 4 Eq. 310; 
 
 16 L. T. 113 - - 138 
 
 Bold v. Hutchinson, 5 De G. M. & G. 558 ; 25 L. J. Ch. 598 ; 
 
 2 Jur. N. S. 97 ; 4 W. E. 3 - - 172 
 
 Bolton v. Curre, 64 L. J. Ch. 164; [1895] 1 Ch. 544; 71 L. T. 
 
 752; 43 W. E. 521 ; 13 E. 174 191, 192 
 
 Bolton v. Salmon, 60 L. J. Ch. 239 ; [1891] 2 Oh. 48 ; 64 L. T. 
 
 222; 39 W. E. 589 117 
 
 Bond, Exp., 2 M. & K. 439 ; 4 L. J. Ch. 84 - 8 
 
 Bond v. Walford, 55 L. J. Ch. 667 ; 32 Ch. D. 238 ; 54 L. T. 
 
 672 169 
 
 Bonhote v. Henderson, 64 L. J. Ch. 556; [1895] 2 Ch. 202; 
 
 72 L. T. 814 ; 43 W. E. 580 ; affirming [1895] 1 Ch. 742 ; 
 
 72 L. T. 556 ; 43 W. E. 502 ; 13 E. 523 107 
 
 Booker v. Allen, 2 Euss. & M. 270 ; 9 L. J. (O. S.) Ch. 130 
 
 153, 156 
 Booth, Ee, Booth v. Eobinson, 75 L. J. Ch. 610; [1906] 2 Ch. 
 
 321 ; 95 L. T. 524 56 
 
 Bootle v. Blundell, 1 Mer. 193 ; 19 Ves. 494 26 
 
 Boss v. Godsall, 1 T. & C. Ch. 473 ; 11 L. J. Ch. 391 ; 7 Jur. 
 
 146 - - - 197 
 
 Bosworth, Ee, Martin v. Lamb, 58 L. J. Ch. 432 18, 190 
 
 Bouch v. Sproule, 56 L. J. Oh. 1037 ; 12 App. Cas. 385 ; 57 
 
 L. T. 345 ; 36 W. E. 193 32 
 
 Boughton v. Boughton, 1 H. L. C. 406 - - 27 
 
 Bourne v. Bourne, 2 Hare, 35 ; 11 L. J. Oh. 416 ; 6 Jur. 775 - 48 
 Boutts v. Ellis, 4 De G. M. & G. 249 ; 17 Jur. 585 81 
 
 Bovey v. Smith, 1 Vern. 60, 84, 144 - 129 
 
 Bovill v. Endle, 65 L. J. Ch. 542 ; [1896] 1 Ch. 648 ; 44 W. E. 
 
 523 - 123 
 
LIST OF OASES CITED. xxiii 
 
 PAGE 
 
 Bowden, Ee, Andrew v. Cooper, 59 L. J. Ch. 815 ; 45 Ch. D. 
 
 444 ; 39 W. E. 219 - - 204 
 
 Bowes v. Heaps, 3 Ves. & B. 119 - 58 
 
 Bowlby, Ee, Bowlby v. Bowlby, 73 L. J. Ch. 810 ; [1904] 2 
 
 Ch. 685 -' - 88, 89, 90 
 
 Bowles v. Bound, 5 Ves. 508 - 159 
 
 Bowie's (Lewis) Case, 11 Co. 796 213 
 
 Bowser v. Colby, 1 Ha. 109 ; 11 L. J. Oh. 132; 5 Jur. 1106 139 
 Boyd v. Boyd, 36 L. J. Ch. 877 ; L. E. 4 Eq. 305 ; 16 L. T. 
 
 600; 15 W. E. 1071 157 
 
 Boynton, Ltd., Ee, Hoffmann v. Boynton, Ltd., 79 L. J. Ch. 
 
 247; [1910] 1 Ch. 519; 102 L. T. 273; 26 T. L. E. 294 14 
 
 Boyse v. Eossborough, 6 H. L. C. 2 ; 26 L. J. Ch. 256; 3 Jur. 
 
 N. S. 373 ; 5 W. E. 414 68 
 
 Brace v. Marlborough (Duchess), 2 P. Wms. 491 - 110 
 
 Bradford v. Brownjohn, 38 L. J. Ch. 10; L. E. 3 Ch. 711 ; 19 
 
 L. T. 248; 16 W. E. 1178 181 
 
 Bradley v. Carritt, 72 L. J. K. B. 471 ; [1903] A. C. 253; 88 
 
 L. T. 633; 51 W. K. 636 - 122 
 
 Bradley v. Munton, 15 Beav. 460 207 
 
 Bradshaw, Ee, Bradshaw i>. Bradshaw, 71 L. J. Ch. 230; [1902] 
 
 1 Ch. 436 ; 86 L. T. 253 144, 145 
 
 Bramhall v. Hall, 2 Eden, 220 - - 144 
 
 Branscombe c. Scarbrough (or Heath), 6 Q,. B. 13 ; 13 L. J. 
 
 Q. B. 247 ; 8 Jur. 688 - 142 
 
 Brandon v. Brandon, 7 De Gr. M. & Or. 365 - 128 
 
 Brandon v. Brandon, 31 L. J. Ch. 47 ; 5 L. T. 339; 9 W. E. 
 
 825 103 
 
 Braund v. Devon (Earl), L. E. 3 Ch. 800; 19 L. T. 181 ; 16 
 
 W. E. 11S0 12 
 
 Braybroke (Lord) v. Inskip, 8 Ves. 417 10S, 177 
 
 Brazilian Eubber Plantations and Estates, Ltd., Ee, 80 L. J. 
 
 Ch. 221 ; [1911] 1 Ch. 425 ; 103 L. T. 697 197 
 
 Brecon (Corp.) v. Seymour, 26 Beav. 548 ; 28 L. J. Ch. 606 ; 
 
 5 Jur. N. S. 1069 - - 110 
 
 Brenchley v. Higgins, 70 L. J. Oh. 788 ; 83 L. T. 751 - 58, 59 
 Brentwood Brick and Coal Co., Ee, Eowe's Claim, 46 L. J. Ch. 
 
 554 ; 4 Ch. D. 562 ; 36 L. T. 343 ; 25 W. E. 481 - 211 
 
 Brewer, Exp., 2 Dr. & Sm. 552 ; 13 L. T. 207 ; 13 W. E. 959 - 86 
 Brewer v. Swirles, 2 Sm. & Q. 219 ; 23 L. J. Ch. 542 ; 18 Jur. 
 
 1069; 2W. E. 339 - - 145 
 
 Brewster v. Woodall, Seton, Decrees, 2229, form 8 206 
 
 Breynton v. L. & N. W. By., Cooper t. Cott. 108 61 
 
 Brice v. Bannister, 47 L. J. Q. B. 722 ; 3 Q. B. D. 569 ; Shirley, 
 
 L. C. 394 - 36 
 
xxiv LIST OF CASES CITED. 
 
 PAGE 
 
 Bridge v. Brown, 2 Y. & C. 01. 181 - 8 
 
 Brier, Ee, Brier v. Evison, 26 Ch. D. 238 ; 51 L. T. 133 - 184, 
 
 197, 200 
 Bright v. Campbell, 54 L. J. Ch. 1077 ; 53 L. T. 428 • 124 
 
 Brigstocke v. Brigstocke, 47 L. J. Ch. 817 ; 8 Ch. D. 357 ; 38 
 
 L. T. 760; 26 W. E. 761 - 32 
 
 Brinsmead v. Harrison, 41 L. J. C. P. 190 ; L. E. 7 C. P. 547 ; 
 
 27 L. T. 99 ; 20 W. E. 784 56 
 
 Bristow v. "Warde, 2 Ves. jun. 336 54, 146 
 
 British Cash and Parcels Conveyors v. Lamson Store Service 
 
 Co., 77 L. J. K. B. 649 ; [1908] 1 K. B. 1006 ; 98 L. T. 875 - 93 
 British Power Traction and Lighting Power Co., Ee, Halifax 
 
 Joint Stock Bank v. British Power, Traction and Lighting 
 
 Co., 75 L. J. Ch. 248 ; [1906] 1 Ch. 497 ; 76 L. J. Ch. 423 ; 
 
 [1907] 1 Ch. 528 ; 94 L. T. 479 ; 22 T. L. E. 268 - 14 
 
 British South Africa Co. v. De Beers Consolidated Mines, 80 
 
 L. J. Ch. 65; [1910] 2 Ch. 502; 103 L. T. 4; 26 T. L. E. 
 
 591 ; revd. on other grounds, [1911] A. C. 52 2 
 
 British Traction Co., Ee, Halifax Joint Stock Bank v. British 
 
 Traction Co., 79 L. J. Ch. 666 ; [1910] 2 Ch. 470 ; 103 L. T. 
 
 451 14 
 
 Brocklesby v. Temperance Permanent Building: Society, 64 
 
 L. J. Oh. 433; [1895] A. 0. 173; 72 L. T. 477; 43 "W. E. 
 
 606; 59 J. P. 676; 11 E. 159 111 
 
 Broderick, Exp., 56 L.J. Q. B. 635; 18 Q. B. D. 706; 35 
 
 W. E. 613 126 
 
 Brogden, Ee, Billing v. Brogden, 38 Ch. D. 546 ; 59 L. T. 650 ; 
 
 37 W. E. 84 203 
 
 Bromley v. Holland, 7 Ves. 3 125 
 
 Bromley v. Smith, 26 Beav. 644 ; 29 L. J. Ch. 18 ; 5 Jur. N. S. 
 
 833 ; 6 W. E. 557 58, 59, 60 
 
 Brook v. Hook, 40 L. J. Ex. 50 ; L. E. 6 Ex. 89 ; 24 L. T. 34 ; 
 
 19 W. E. 508 - 46 
 
 Brooke, Ee, Brooke v. Brooke, 63 L. J. Ch. 159; [1894] 1 Ch. 
 
 43 ; 70 L. T. 71 ; 42 W. E. 186 ; 8 E. 24 177 
 
 Brooke, Ee, Brooke v. Brooke, 64 L. J. Ch. 21 ; [1S94] 2 Ch. 
 
 600 ; 71 L. T. 398 ; 8 E. 444 189 
 
 Brooke v. Anon., 4 Madd. 212 - 206 
 
 Brooke v. Mostyn (Lord), 34 L. J. Ch. 65 ; 2 De G. J. & S. 
 
 373 ; revd. L. E. 4 H. L. 304 45 
 
 Brookman v. Eothschild, 5 Bli. N. S. 165 ; 2 D. & CI. 188 - 63, 179 
 Broome v. Monck, 10 Ves. 597 - 48 
 
 Brophy ■•>. Bellamy, 43 L. J. Ch. 183 ; L. E. S Ch. 798 ; 29 
 
 L. T. 380 - - 90 
 
 Brougham, Exp., Ee Darby, 80 L. J. E. B. 180; [1911] 1 
 
 K. B. 95 - 73 
 
LIST OF CASES CITED. xxv 
 
 PAGE 
 
 Broun v. Kennedy, 4 De G. J. & S. 217 ; 33 L. J. Ch. 342 ; 10 
 
 Jur. N. S. 141 ; 9 L. T. 736 ; 12 W. E. 360 - 67 
 
 Brown v. OoUins, 53 L. J. Ch. 368; 25 Ch. D. 56; 49 L. T. 
 
 3il9 - 86 
 
 Brown v. Gellatly, L. E. 2 Ch. 751 ; 17 L. T. 131 ; 15 W. E. 
 
 1188 - 31 
 
 Brown v. Higgs, 4 Ves. 708 ; 5 Ves. 495 ; S Ves. 561 78, 144 
 
 Browne v. Lockhart, 10 Sim. 284 ; 9 L. J. Ch. 167 ; 4 Jur. 167 - 1 19 
 Browne v. Savage, 4 Drew. 635 ; 5 Jur. N. S. 1020 ; 7 W. E. 
 
 571 - 41 
 
 BrowneU v. Brownell, 2 Bro. C. C. 62 - 21 
 
 Brownlie v. Campbell, 5 App. Cas. 925 62 
 
 Bruce, Ee, Lawford v. Bruce, 78 L. J. Ch. 56; [1908] 2 Ch. 
 
 682 ; 99 L. T. 704 - 28 
 
 Bruce v. Bruce, 40 L. J. Ch. 141 ; L. E. 11 Eq. 371 ; 24 L. T. 
 
 212 - 144 
 
 Brudenell v. Elwes, 1 East, 442 ; 7 Ves. 382 146, 148 
 
 Bruin v. Knott, 1 Ph. 572 ; 14 L. J. Ch. 440 ; 9 Jur. 979 8 
 
 Bruner v. Moore, 73 L. J. Ch. 377 ; [1904] 1 Ch. 305 ; 89 L. T. 
 
 738; 52 W. E. 295; 20 T. L. E. 125 210 
 
 Bryant, Ee, Bryant v. Hickley, 63 L. J. Ch. 197 ; [1894] 1 Ch. 
 
 324 ; 70 L. T. 301 ; 42 W. E. 183 ; 8 E. 32 - 90 
 
 Bryant and Barningham's Contract, Ee, 59 L. J. Ch. 636 ; 44 
 
 Ch. D. 218 ; 63 L. T. 20 ; 38 W. E. 469 - 206 
 
 Bryant v. Busk, 4 Euss. 1 - 160 
 
 Buckinghamshire (Earl) v. Hobart, 3 Swanet. 186 104 
 
 Buckmaster v. Harrop, 7 Ves. 341 ; 13 Ves. 456 - 164 
 
 Bulkley v. Wilford, 2 CI. & F. 102 ; 8 Bli. N. S. Ill 64 
 
 Buller v. Plunket, 1 J. & H. 441 ; 30 L. J. Ch. 641 ; 7 Jur. 
 
 N. S. 873; 9VV. B. 190 - - 41 
 
 Bunn v. Markham, 7 Taunt. 224 ; 2 Marsh. 532 81 
 
 Burges v. Lamb, 16 Ves. 174 214 
 
 Burgess v. Booth, 78 L. J. Ch. 32 ; [190S] 2 Ch. 648 ; 98 L. T. 
 
 668 49, 135 
 
 Burgess v. Burgess, 3 De G. M. & G. 896 ; 22 L. J. Ch. 675 ; 
 
 17 Jur. 292 74 
 
 Burke, Ee, Burke v. Burke, 77 L. J. Ch. 597 ; [1908] 2 Ch. 
 
 248; 99 L. T. 86 196 
 
 Burke v. Jones, 2 V. & B. 275 - 186 
 
 Burland v. Earle, 71 L. J. P. C. 1 ; [1902] A. C. 83 ; 85 L. T. 
 
 553 ; 50 W. E. 241 - 168 
 
 Burn v. Carvalho, 4 M. & Cr. 690 ; 9 L. J. Ch. 65 ; 3 Jur. 1141 - 40 
 Burroughes v. Browne, 9 Ha. 609; 22 L. J. Ch. 148 213 
 
 Burroughes, Wellcome & Co.'s Trade Marks, Ee, 73 L. J. Ch. 
 
 474; [1904] 1 Ch. 736; 91 L. T. 58; 52 W. E. 581; 20 
 
 T. L. E. 415 - - - - 74 
 
xxvi LIST OF CASES CITED. 
 
 PAGKE 
 
 Burrow v. Scammell, 51 L. J. Ch. 296 ; 19 Ch. D. 175 ; 45 
 
 L. T. 606 ; 30 W. E. 310 ; 46 J. P. 135 - 161 
 
 Burrowes v. Lock, 10 Ves. 470 - - 64 
 Burt v. Bull, 64 L. J. Q. B. 232 ; [1895] 1 Q. B. 276 ; 71 L. T. 
 
 810; 43 W.E. 180; 14 E. 65 14 
 
 Bush v. Western, Prec. Ch. 530 16 
 
 Butcher v. Butcher, 1 V. & B. 79 - 145 
 
 Butler v. Freeman, Ambler, 301 86 
 
 Butler v. Wigge, 1 Wms. Saund. 84 - 106 
 
 Butler's Will, Ee, L. E. 16 Eq. 479 51 
 Byam v. Munton, 1 Euss. & M. 503 ; 8 L. J. (O. S.) Oh. 156 50 
 
 Byrchall v. Bradford, 6 Madd. 235 198 
 
 Byrne v. Norcott, 13 Boav. 3^6 203 
 
 Caballero v. Henty, 43 L. J. Ch. 635 ; L. E. 9 Ch. 447 ; 30 
 
 L. T. 314; 22 W. E. 446 - - 133,159 
 
 Cadman v. Horner, 18 Ves. 10- - - 159 
 
 Cadogan v. Essex (Earl), 2 Drew. 227; 23 L. J. Ch. 487; 18 
 
 Jur. 782 ; 2 W. E. 313 - - 197 
 
 Cain v. Moon, 65 L. J. Q. B. 587 ; [1896] 2 Q. B. 283 ; 74 L. T. 
 
 728 - 77, 81 
 
 Caird v. Moss, 55 L. J. Ch. 854; 33 Ch. D. 22; 55 L. T. 453 ; 
 
 35 W. E. 52 - - - 106 
 
 Caldecott v. Caldecott, 1 Y. & C. Ch. 345; 12 L. J. Ch. 158; 
 
 6 Jur. 232 - 199 
 
 Callaghan, Ee, Elliott v. Lambert, 54 L. J. Ch. 292 ; 28 Ch. D. 
 
 186; 52 L.T. 7; 33 W.E. 167 - 86,87 
 
 Campbell, Ee, Campbell v. Campbell, 62 L. J. Ch. 594 ; [1893] 
 
 2 Ch. 206; 68 L. T. 851 ; 3 E. 331 25 
 
 Campbell v. Allgood, 17 Beav. 623 215 
 
 Campbell v. Fleming, 1 A. & E. 40 ; 3 L. J. K. B. 136; 3 
 
 Nev. & M. 834 - 46 
 
 Campbell v. Graham, 1 Euss. & M. 453 142 
 
 Campbell v. Holyland, 47 L. J. Ch. 145 ; 7 Ch. D. 166 ; 38 
 
 L. T. 128; 26 W. E. 109 - -120 
 
 Campbell v. Home, 1 Y. & C. Ch. 664 ; 7 Jur. 365 148 
 
 Campbell v. Mackay, 2 M. & Cr. 31 - 86, 87 
 
 Campbell v. Walker, 5 Ves. 678 ; affd. 13 Ves. 601 73, 179 
 
 Candler v. Tillett, 22 Beav. 257 ; 25 L. J. Ch. 505 ; 4 W. E. 
 
 160 - - 193 
 
 Canning v. Catling, 4 N. E. 259 164 
 
LIST OF CASES CITED. 
 
 KI711 
 
 PAGE 
 
 Cannon v. Trask, 44 L. J. Ch. 772 ; L. E. 20 Eq. 669 - 13, 167 
 
 Capel v. Wood, 4 Euss. 500 ; 3 L. J. (0. S.) Ch. 91 179 
 
 Capital and Counties Bank v. Ehodes, 72 L. J. Ch. 336 ; [1903] 
 
 1 Ch. 631 ; 88 L. T. 255; 51 W. E. 470 - 103 
 
 Capon's Trusts, Ee, 48 L. J. Ch. 35 ; 10 Ch. D. 484 ; 27 W. E. 
 
 376 - - 145 
 
 Carlish v. Salt, 75 L. J. Ch. 175 ; [1906] 1 Ch. 335 ; 94 L. T. 
 
 58 ; 54 W. E. 244 - 159 
 
 Carmichael v. Hughes, 20 L. J. Ch. 396 8 
 
 Carnatic (Nabob) v. East India Co., 3 Bro. C. C. 292; 1 Ves. 
 
 jun. 371 - 3 
 
 Carr v. Eracis Times & Co., 71 L. J. K. B. 361 ; [1902] A. C. 
 
 176 ; 85 L. T. 144; 50 W. E. 257 3 
 
 Carritt v. Eeal and Personal Advance Co., 58 L. J. Ch. 688; 
 
 42 Ch. D. 263 ; 61 L. T. 163 ; 37 W. E. 677 - - - 133 
 
 Carter v. Boehm, 3 Burr. 1910 159 
 
 Carter v. Williams, 39 L. J. Ch. 560 ; L. E. 9 Eq. 678 ; 23 
 
 L. T. 183 ; 18 W. E. 593 131 
 
 Carteret v. Petty, 2 Swanst. 323, e. 2 
 
 Cary v. Abbot, 7 Ves. 490 - 10 
 
 Carysfort (Earl), Ee, Or. & P. 76 8 
 
 Casborne v . Barsham, 2 Beav. 76 65 
 
 Cato v. Thompson, 9 Q. B. D. 616 ; 47 L. T. 491 - 207 
 
 Caton v. Caton, 35 L. J. Ch. 292 ; L. E. 1 Ch. 137 ; 12 Jur. 
 
 N. 8. 171 ; on app., 36 L. J. Ch. 886 ; L. E. 2 H. L. 127 ; 16 
 
 W. E. 1 - 163, 164 
 
 Caton v. Eideout, 1 Mao. & G. 599 ; 1 H. & Tw. 33 66, 98 
 
 Cavendish, Exp., 72 L. J. K. B. 117; [1903] 1 K. B. 151; 87 
 
 L. T. 655; 51 W. E. 319 - - - 41 
 
 Cavendish-Bentinok v. Fenn, 57 L. J. Ch. 552 ; 12 App. Cas. 
 
 652 ; 57 L. T. 773 ; 36 W. E. 641 - - 60 
 
 Cellular Clothing Co. v. Maxton & Murray, 68 L. J. P. C. 72 ; 
 
 [1899] A. C. 326; 80 L. T. 809 74 
 
 Chalmer v. Bradley, 1 Jao. & W. 51 22, 178 
 
 Chambers v. Goldwin, 9 Ves. 254 122 
 
 Chambers v. Minchin, 7 Ves. 186 193 
 
 Champion, Ee, Dudley v. Champion, 62 L. J. Ch. 372 ; [1893] 
 
 1 Ch. 101; 67 L. T. 694; 2 E. 162 - -174 
 
 Chancellor, Ee, Chancellor v. Brown, 53 L. J. Ch. 443; 26 
 
 Ch. D. 42 ; 51 L. T. 33 ; 32 W. E. 465 30 
 
 Chancey's Case, 1 P. Wms. 408 154 
 
 Chaplin v. Chaplin, 3 P. Wms. 245 151 
 
 Chapman, Ee, Cocks v. Chapman, 65 L. J. Ch. 892 ; [1896] 2 
 
 Ch. 763 ; 75 L. T. 196 ; 45 W. E. 67 198 
 
 Chapman v. Browne, 71 L. J. Ch. 465; [1902] 1 Ch. 785; 86 
 
 L. T. 744 - 203 
 
xxviii LIST OF OASES CITED. 
 
 PAGE 
 
 Chapman v. Michaelson, 78 L. J. Oh. 272 ; [1909] 1 Ch. 238 ; 
 
 100 L. T. 109 ; 25 T. L. B. 101 - 3 
 
 Charlton v. Durham (Earl), L. E. 4 Ch. 433 ; 20 L. T. 467 ; 17 
 
 W. E. 995 - - 193 
 
 Charter v. Trevelyan, 11 CI. & F. 714 - 70, 77 
 
 Charter v. Watson, 68 L. J. Ch. 1 ; [1899] 1 Ch. 175 ; 79 L. T. 
 
 440 ; 47 W. E. 250 - 76 
 
 Chatteris v. Young, 1 Jac. & W. 106 - 83 
 
 ChenneU, Ee, Jones v. Chennell, 47 L. J. Ch. 583 ; 8 Ch. D. 
 
 492 ; 38 L. T. 494 ; 26 W. E. 595 192 
 
 ChenneU v. Martin, 9 L. J. (O. S.) Ch. 208 73 
 
 Chesham (Lord), Ee, Cavendish v. Dacre, 55 L. J. Ch. 401 ; 31 
 
 Ch. D. 466; 54 L. T. 154; 34 W. E. 321 55 
 
 Chester (Dean and Chapter) v. Smelting Corporation, 85 L. T. 
 
 67; [1901] W.N. 179 94 
 
 Chesterfield's (Earl) Trusts, Ee, 52 L. J. Ch. 958 ; 24 Ch. D. 
 
 643 ; 49 L. T. 261 ; 32 W. E. 361 31 
 
 Chetwynd's Settlement, Ee, 71 L. J. Ch. 352 ; [1902] 1 Ch. 
 
 692 ; 86 L. T. 216; 50 W. E. 361 ■ 177 
 
 Chichester (Lord) v. Coventry, 36 L. J. Ch. 673 ; L. E. 2 H. L. 
 
 71 ; 17 L. T. 35 ; 15 W. E. 849 153 
 
 Child v. Douglas, Kay, 560 ; 5 De O. M. & G. 739 ; 2 Jur. N. S. 
 
 950 92 
 
 Childers v. Childers, 1 De G. & J. 482 ; 20 L. J. Ch. 743 ; 3 
 
 Jur. N. S. 1277 ; 5 W. E. 859 34, 35 
 
 Chillingworth v. Chambers, 65 L. J. Ch. 343 ; [1896] 1 Ch. 
 
 685; 74 L. T. 34; 44 W. E. 388 • 191, 195 
 
 Chippendale, Exp., German Mining Co., Ee, 4 De G. M. & G. 
 
 19 ; 2 W. E. 547 191 
 
 Cholmeley's School v. Sewell, 63 L. J. Q. B. 820 ; [1S94] 2 
 
 Q. B. 906 ; 71 L. T. 88 ; 58 J. P. 531 ; 10 E. 368 - 141 
 
 Christian v. Eield, 2 Hare, 177 ; 11 L. J. Oh. 97 ; 5 Jur. 1130- 115 
 Christie v. Gosling, 35 L. J. Ch. G67 ; L. E. 1 H. L. 279 ; 15 
 
 L. T. 41 - 172 
 
 Christy v. Courtenay, 13 Beav. 96 34, 35, 36 
 
 Churchill, Ee, Hiscock v. Loddor, 79 L. J. Ch. 10; [1909] 2 
 
 Ch. 431 ; 101 L. T. 380 - 89 
 
 Churchill v. Churchill, 37 L. J. Ch. 92 ; L. E. 5 Eq. 44 ; 16 
 
 W. E. 182 - 55 
 
 Clare Hall (Master) v. Harding, 6 Ha. 273 ; 17 L. J. Ch. 301 ; 
 
 12 Jur. 511 - - 63 
 
 Clarke, Ee, 51 L. J. Ch. 762 ; 21 Ch. D. 817 ; 47 L. T. 84 ; 31 
 
 W. E. 37 - - 85 
 
 Clarke, Ee, 67 L. J. Ch. 234 ; [1898] 1 Ch. 336 ; 78 L. T. 275 ; 
 
 46 W. E. 337 7 
 
 Clarke v. Abingdon (Lord), 17 Yes. 106 142 
 
LIST OF CASES CITED. 
 
 Clarke v. Franklin, 4 K. & J. 257 ; 27 L. J. Oh. 567 ; 6 W. E. 
 
 836 - - - 50 
 
 Clarke v. Hart, 6 H. L. C. 633 ; 27 L. J. Oh. 615 ; 5 Jur. N. S. 
 
 447 - 63 
 
 Clarke v. Ormonde (Earl), Jac. 108 24 
 
 Clarke v. Price, 2 Wils. Oh. 157 168 
 
 Clarke v. Eamuz, 60 L. J. Q. B. 679 ; [1891] 2 Q. B. 456; 50 
 
 J. P. 5 ■ 119, 213 
 
 Clarke v. Tipping, 4 Beav. 588 19 
 
 Clarke's Trusts, Be, 22 L. J. Ch. 230 48 
 
 Clarkson v. Eobinson, 69 L. J. Ch. 859; [1900] 2 Ch. 722; 83 
 
 L. T. 164; 48 W. E. 698 184 
 
 Clay & Tetley, Ee, 16 Ch. D. 3 ; 43 L. T. 402 ; 29 W. E. 5 187 
 Clegg v. Edmondson, 8 De G. M. & G. 787 ; 20 L. J. Ch. 673 ; 
 
 3 Jur. N. S. 299 - 180 
 
 Clement v. Cheesman, 54 L. J. Ch. 158 ; 27 Ch. D. 631 ; 33 
 
 W. E. 40 - 81 
 
 Clementson v. Gandy, 1 Keen, 309 ; 5 L. J. Oh. 260 53 
 
 Clergv Orphan Corporation, Ee, 64 L. J. 66 ; [1894] 3 Ch. 145 ; 
 
 71 L. T. 450; 43 W. E. 150; 7 E. 549 - 11 
 
 Clinan v. Cooke, 1 Sch. & L. 22 - 164 
 
 Clogstoun v. Walcott, 9 Jur. 649 - 86 
 
 Cloutte v. Storey, 80 L. J. Ch. 193; [1911] 1 Ch. 18; 103 
 
 L. T. 617 - - 46, 128, 143, 144, 149 
 
 Clough v. Bond, 3 M. & Cr. 490; 8 L. J. Ch. 51 ; 2 Jur. 958 - 193 
 Clowes, Ee, [1893] 1 Ch. 214; 68 L. T. 395; 41 W. E. 69; 
 
 2 E. 115 24 
 
 Clowes v. Higginson, 1 V. & B. 524 160, 165 
 
 Coaks v. Boswell, 55 L. J. Ch. 761 ; 11 App. Cas. 232 ; 55 L. T. 
 
 32 71, 159 
 
 Cochrane v. Macnieh, 65 L. J. P. 0. 20; [1896] A. C. 225 ; 74 
 
 L. T. 109 75 
 
 Cochrane v. Moore, 59 L. J. Q. B. 377 ; 25 Q. B. D. 57 ; 63 
 
 L. T. 153; 38 W. E. 5S8; 54 J. P. 804 35, 77, 79, 170, 175 
 
 Cockburn v. Edwards, 51 L. J. Ch. 46; 18 Ch. D. 449; 45 
 
 L. T. 500 - 71 
 
 Cockcroft, Ee, Broadbent v. Groves, 52 L. J. Ch. 811; 24 
 
 Ch. D. 94 ; 49 L. T. 497 ; 32 W. E. 223 26 
 
 Cockell v. Taylor, 15 Beav. 103 ; 21 L. J. Ch. 545 38 
 
 Cocker v. Quayle, 1 Euss. & M. 535 - 192 
 
 Cocks v. Smith, 2 L. J. Ch. 205 177 
 
 Codrington v. Lindsay, 42 L. J. Ch. 526 ; L. E. 8 Ch. 578 ; 28 
 
 L. T. 177 ; 21 W. E. 182 ; affd. nom. Codrington v. Codring- 
 ton, 45 L. J. Ch. 660 ; L. E. 7 H. L. 854 ; 34 L. T. 221 ; 24 
 
 W. E. 648 - 55 
 
 Coffin v. Coffin, 6 Madd. 57 ; Jac. 70 - 93 
 
3xx LIST OF CASES CITED. 
 
 JPAOE 
 
 Cogan v. Duffield, 45 L. J. Ch. 307; 2 Oh. D. 44; 34 L. T. 
 
 593 ; 24 W. E. 905 172 
 
 Coham v. Coham, 13 Sim. 639 ; 8 Jur. 26 - 83 
 
 Cohen, Ee, Brookes v. Cohen, 80 L. J. Ch. 208; [1911] 1 Ch. 
 
 37 ; 103 L. T. 626 - - 143 
 
 Colelough v. Boyse. See Boyse v. Eossborough. 
 Cole, Ee, 16 T. L. E. 500 - 83, 84, 85 
 
 Coles v, Pilkington, 44 L. J. Ch. 385; L. E. 19 Eq. 174; 31 
 
 L. T. 423; 23 W. E. 41 164 
 
 Coles v. Trecothink, 9 Ves. 234 69, 178 
 
 Collier v. Squire, 3 Buss. 467 ; 5 L. J. (O. S.) Ch. 186 45 
 
 Collins Co. v. Brown, 3 K. & J. 423 ; 3 Jur. N. S. 929 ; 5 W. E. 
 
 676 - 75 
 
 Collins v. Prosser, 1 B. & C. 082 ; 1 L. J. (O. S.) K. B. 212 ; 
 
 3Dowl. &E. 112 146 
 
 Collinson v. Jeffery. 65 L. J. Ch. 375; [1896] 1 Ch. 644; 74 
 
 L. T. 78; 44 W. E. 311 120 
 
 Colman v. Eastern Counties Eailway, 10 Beav. 1 ; 16 L. J. Ch. 
 
 73; 11 Jur. 74; 4 Ey. Cas. 513 13, 167 
 
 Colyer v. Finch, 26 L. J. Ch. 65 ; 5 H. L. C. 905 133, 187 
 
 Comiskey v. Bowring-Hanbury, 74 L. J. Ch. 263 ; [1905] A. C. 
 
 84; 92 L. T. 241 ; 53 W. E. 402 ; 21 T. L. E. 252 144, 174 
 
 Compton v. Bagley, 61 L. J. Ch. 113; [1892] 1 Ch. 313; 65 
 
 L. T. 706 - - 209 
 
 Conolly, Ee, Conolly v. Conolly, 79 L. J. Ch. 148; [1910] 1 Ch. 
 
 219 ; 101 L. T. 783 ; 26 T. L. E. 189 173 
 
 Conron v. Conron, 7 H. L. 0. 168 26 
 
 Oonsett v. Bell, 1 T. & C. Ch. 562 ; 11 L. J. Ch. 401 ; 6 Jur. 
 
 869 - 66 
 
 Const v. Harris, T. & E. 496 - 14, 93 
 
 Good v. Pollard, 9 Pri. 544; 10 Pri. 109 211 
 
 Cook v. Collingridge, Jac. 607 - 17S 
 
 Cook v. Gregson, 3 Drew. 547 ; 25 L. J. Ch. 706 ; 2 Jur. N. S. 
 
 510; 4W.E. 581 - - 27 
 
 Cooke v. Anon., 4 L. J. (O. S.) Ch. 141 95 
 
 Coomber, Ee, Coomber ti. Coomber, 80 L. J. Ch. 399; [1911] 
 
 1 Oh. 723 ; 104 L. T. 517 - 66 
 
 Cooper v. Cooper, 43 L. J. Ch. 158 ; L. E. 8 Ch. 813 ; 29 L. T. 
 
 321 ; 21 W. E. 921 - 156 
 
 Cooper v. Cooper, 44 L. J. Ch. 6; L. E. 7 II. L. 53; 30 L. T. 
 
 409; 22 W. E. 713 10, 51, 56 
 
 Cooper v. Kynoch, 41 L. J. Ch. 296; L. E. 7 Ch. 398 ; 26 L. T. 
 
 566; 20 W. E. 503 - 176 
 
 Cooper v. Macdonald, 47 L. J. Ch. 373 ; 7 Ch. D. 288 ; 38 
 
 L. T. 191 ; 26 W. E. 377 ... 86 
 
LIST OF CASES CITED. xxxi 
 
 PAGE 
 
 Cooper v. Phibbs, L. E. 2 H. L. 149 ; 16 L. T. 678; 15 W. B. 
 
 1049 - . 107 
 
 Cooper v. Shepherd, 3 C. B. 266 ; 15 L. J. C. P. 237 ; 4 Dowl. 
 
 & L. 218 36 
 
 Cope v. Crossingham, 77 L. J. Ch. 777 ; [1908] 2 Ch. 624 ; 99 
 
 L. T. 609 ; 24 T. L. E. 816 ... 92 
 
 Copestake v. Hoper, 77 L. J. Ch. 610; [1908] 1 Ch. 10; 99 
 
 L. T. 371 ; 24 T. L. E. 628 - • - 118 
 
 Cork and Youghal Eailway, Ee, 30 L. J. Ch. 277 ; L. E. 4 Ch. 
 
 748 ; 21 L. T. 735 ; 18 W. E. 26 - 100 
 
 Cornwall v. Henson, 69 L. J. Ch. 581 ; [1900] 2 Ch. 298 ; 82 
 
 L. T. 735 ; 49 W. E. 42 - 160, 209 
 
 Corsellis, Ee, Lawton v. Elwes, 56 L. J. Ch. 294 ; 34 Oh. D. 
 
 675 ; 56 L. T. 411 ; 35 W. E. 309 ; 51 J. P. 597 184 
 
 Cosh's Contract, Ee, 66 L. J. Ch. 28 ; [1897] 1 Ch. 9; 75 L. T. 
 
 365; 45 "W. E. 117 - - 141 
 
 Cosier, Ee, Humphreys v. Gadsden, 66 L. J. Ch. 236; [1897] 
 
 1 Ch 325 ; 76 L. T. 31 ; 45 W. E. 376 156 
 
 Cosnahan v. Grice, 15 Moo. P. C. 215 - 81 
 
 Cothay v. Sydenham, 2 Ero. C. C. 391- 40 
 
 Cottam v. Eastern Counties Ey., U. & H. 243 ; 30 L. J. Ch. 
 
 217 ; 6 Jur. N. S. 1367 ; 3 L. T. 465 ; 9 W. E. 94 194 
 
 Cotterell v. Stratton, 42 L. J. Ch. 417 ; L. E. 8 Ch. 295 ; 28 
 
 L. T. 218; 21 W. E. 234 119,120 
 
 Cotton v. Ees, 1 Vern. 271 108 
 
 County of Gloucester Bank v. Eudry Merthyr Steam and House 
 Coal Colliery, 64 L. J. Ch. 451 ; [1895] 1 Ch. 629 ; 72 L. T. 
 375 ; 43 W. E. 486 ; 12 E. 183 124 
 
 Courtenay (or Courtnay) v. "Williams, 3 Hare, 539 ; 13 L. J. 
 
 Ch. 461 ; 8 Jur. 844 ; affd. 15 L. J. Ch. 204 38, 155 
 
 Cowdry u. Day, 1 Giff. 316; 29 L. J. Ch. 39; 5 Jur. N. S. 
 
 1199; 1L.T. 88; 8 W. E. 55 71 
 
 Cox v. Barker, 3 Ch. D. 359 ; 35 L. T. 635 3 
 
 Cox v. Bennett, L. E. 6 Eq. 422 24 
 
 Cox v. Bennett, 31 L. T. 83 ; 22 W. E. 819 87 
 
 Cox v. Bennett, 39 W. E. 308 - 184 
 
 Coxj;. Middleton, 2 Drew. 209; 23 L. J. Ch. 618; 2 ,W. E. 
 
 284 159 
 
 Cox & Neve's Contract, Ee, (1891) 2 Ch. 230; 64 L. T. 733; 
 
 39 W. E. 412 - 132, 133 
 
 Crackelt v. Bethune, 1 J. & W. 586 202 
 
 Craig v. Phillips, 46 L. J. Ch. 49 ; 3 Oh. D. 722 ; 35 L. T. 
 
 198 - - 159 
 
 Crane, Ee, Adams v. Crane, 77 L. J. Ch. 212; [1908] 1 Ch. 
 379; 98 L. T. 314 88 
 
xxxii .LIST OF CASES CITED. 
 
 PACJE 
 
 Crawford v. Toogood, 49 L. J. Ch. 108; 13 Ch. D. 153; 41 
 
 L. T. 549 ; 28 W. E. 248 - - 209 
 
 Crawshay, Be, Crawshay v. Crawshay, 59 L. J. Oh. 395; 43 
 
 Oh. D. 615 ; 62 L. T. 489 ; 38 W. E. 600 - 149 
 
 Creed v. Creed, 11 01. & F. 491 26 
 
 Orichton v. Crichton, 05 L. J. Ch. 491 ; [1896] 1 Ch. 870 ; 74 
 
 L. T. 357 - - - - 155, 156 
 
 Croft v. Graham, 2 De G. J. & S. 155 ; 9 L. T. 589 - 60 
 
 Croft v . London and County Bank, 54 L. J. Q. B. 277 ; 14 
 
 Q. B. D. 347 ; 52 L. T. 374 ; 49 J. P. 356 - 139 
 
 Crosbie-Hill v. Sayer, 77 L. J. Ch. 466 ; [1908] 1 Ch. 866 ; 99 
 
 L. T. 267 ; 24 T. L. E. 442 - 105 
 
 Cross v, Kennington, 11 Beav. 89 - 192 
 
 Crowder v. Tinkler, 19 Ves. 617 95 
 
 Ouddee v. Butter, 5 Vin. Ab. 538, pi. 21 162 
 
 Culey v. Stafford (Lord), 1 De G. & J. 238 ; 26 L. J. Ch. 865 ; 
 
 3 Jur. N. S. 1225; 5 W. E. 646 67 
 
 Curl Bros., Ltd. v. Webster, 73 L. J. Ch. 540; [1904] 1 Ch. 
 
 685 ; 90 L. T. 479 ; 52 W. E. 413 - 92 
 
 Curling v. Plight, 2 Ph. 613 ; 17 L. J. Ch. 359 ; 12 Jur. 423 206 
 Currant v. J ago, 1 Coll. 261 ; 8 Jur. 610 35 
 
 Curre v. Bowyer, 5 Beav. 6, n. 48 
 
 Currey, Ee, Gibson v. Way, 55 L. J. Ch. 906 ; 32 Oh. D. 361 ; 
 
 54 L. T. 665 ; 34 W. E. 541 - 96 
 
 Curson v. Belworthy, 3 H. L. C. 742 65, 68 
 
 Dalglish v. Jarvie, 3 Mao. & G. 231 ; 20 L. J. Ch. 475 ; 2 H. & 
 
 Tw. 437; 14 Jur. 945 16 
 
 DaUas, Ee, 73 L. J. Ch. 365 ; [1904] 2 Ch. 385 ; 90 L. T. 177 ; 
 
 52 W. E. 567- - 41 
 
 Dalton, Ee, 6 De G. M. & G. 201 ; 25 L. J. Ch. 751 ; 2 Jur. 
 
 N. S. 1077 ; 4 W. E. 793 - 86 
 
 Daniell v. Sinclair, 50 L. J. P. C. 50; 6 App. Cas. 181 ; 44 
 
 L. T. 257 ; 29 W. E. 569 • 107 
 
 Darke v. Williamson, 25 Beav. 622; 4 Jur. N. S. 1009; 6 
 
 W. E. 824 189 
 
 Darling, Ee, 57 L. J. Ch. 891 ; 39 Oh. D. 20S ; 59 L. T. 761 8 
 
 Dartnell, Ee, Sawyer v. Ooddard, 64 L. J. Ch. 341 ; [1895] 1 
 
 Ch. 474 ; 72 L. T. 404; 43 W. E. 644 ; 12 E. 237 18, 42, 201 
 Daubeny v. Cockbarn, 1 Mer. 626 - - 143. 
 
 Davenport v. Davenport, 1 II. & M. 775; 12 W. E. 6; 3 N. E. 
 
 26 - - - - 171 
 
 ravenport v. Jam:s, 7 Hare, 249; 12 Jur. 827 - - 117 
 
LIST OF CASES CITED. 
 
 Davenport v. Keg., 47 L. J. P. C. 8; 3 App. Cas. 215; 37 
 L. T. 727 - - 57 
 
 Davie v. Messiter, 7 Jur. N. S. 349; 3 L. T. 874 151 
 
 Davies, Ee, EUis v. Eoberts, 67 L. J. Oh. 507; [1898] 2 Ch. 
 142 ; 79 L. T. 344 - - - 204 
 
 Davies v. Bush, 4 Bli. N. S. 305 - 115 
 
 Davies v. Davies, 2 De G. M. & G. 61; 21 L. J. Ch. 419; 16 
 Jur. 419 - 7 
 
 Davies v. Goodhew, 6 Sim. 585 - 48 
 
 Davies v. National Fire and Marine Insurance, 60 L. J. P. C. 
 
 73; [1891] A. 0. 485; 65 L. T. 560- - 60 
 
 Davies (or Davis) v. Spurling, 1 Buss. & M. 64 ; Taml. 199 - 187, 194 
 Davies v. Thomas, 69 L. J. Ch. 643 ; [1900] 2 Ch. 462 ; 83 
 
 L. T. 11; 49 W. B. 68 "- 212 
 
 Davis, Ee, Davis v. Davis, 71 L. J. Ch. 539; [1902] 2 Ch. 314; 
 
 86 L. T. 523 ; 51 W. E. 8 202 
 
 Davis v. Foreman, 64 L. J. Ch. 187 ; [1894] 3 Ch. 654 ; 43 
 
 W. E. 168 ; 8 E. 725 - 168 
 
 Davis v. Ingram, 66 L. J. Ch. 386; [1897] 1 Ch. 477; 45 
 
 W. E. 459 - - 136 
 
 Davis v. May, 19 Ves. 383 - 124 
 
 Davy, Ee, Hollingsworth v. Davy, 77 L. J. Ch. 67; [1908] 1 
 
 Ch. 61 ; 97 L. T. 654 201 
 
 Dawson v. Thompson, 12 L. T. 178 - 86 
 
 Day v. Day, 31 Beav. 270; 31 L. J. Ch. 806; 8 Jur. N. S. 
 
 1166; 7 L. T. 122; 10 W. E. 728 123 
 
 Day v. Newman, 2 Cox, 77 159 
 
 Day v. Sykes, 55 L. T. 763 - 14 
 
 Deakin, Ee, Starkey v. Eyres, 63 L. J. Ch. 779 ; [1894] 3 Ch. 
 
 565 ; 71 L. T. 838; 43 W. E. 70; 8 E. 702 - 145 
 
 Dehenham v. Sawbridge, 70 L. J. Ch. 525 ; [1901] 2 Ch. 98 ; 
 
 84 L. T. 519; 49 W. E. 502 61 
 
 De Clifford (Lord), Ee, De Clifford (Lord) v. Quilter, 69 L. J. 
 
 Ch. 828; [1900] 2 Ch. 707; 83 L. T. 160 - - 204 
 
 De Hoghton, Ee, De Hoghton v. De Hoghton, 65 L. J. Ch. 
 
 667 ; [1896] 2 Ch. 385 ; 74 L. T. 297 ; 44 W. E. 550 149 
 
 De Hoghton v. Money, L. E. 2 Ch. 164 ; 15 L. T. 403 ; 15 
 
 W. E. 214 - 37, 208 
 
 Dee Estates, Ltd., Ee, Wright v. Dee Estates, Ltd., 80 L. J. 
 
 Ch. 461 ; [1911] 2 Ch. 85 ; 104 L. T. 903 188, 189 
 
 De La Touohe's Settlement, Ee, 40 L. J. Ch. 85; L. E. 10 Eq. 
 
 599 ... . ]06 
 
 Delves v. Gray, 71 L. J. Ch. 808; [1902] 2 Ch. 606; 87 L. T. 
 
 425; 51 W. E. 56 - - " - 129, 179 
 
 De Manneville v. De Manneville, 10 Ves. 52 - 84 
 
 Dendy v. Evans, 79 L. J. E. B. 121; [1910] 1 K. B. 263; 102 
 
 L. T. 4 ' - 141 
 
xxxir LIST OF GASES CITED. 
 
 PAGE 
 
 Denne v. Light, 8 De G. M. & G. 774; 26 L. J. Oh. 459; 3 
 
 Jur. N. S. 627 ; 5 W. B. 430 - - 160 
 
 Denny v. Hancock, L. E. 6 Ch. 1 ; 23 L. T. 686; 19 W. E. 54- 106 
 Dent v. Bennett, 4 M. & Or. 277 ; 8 L. J. Ch. 125 ; 3 Jur. 99 - 
 
 65,67 
 
 Denton v. Donner, 23 Beav. 2S5 70 
 
 Derbyshire v. Home, 3 De G. M. & G. 80 203 
 
 Derry v. Peek, 58 L. J. Ch. 864 ; 14 App. Cas. 337 ; 61 L. T. 
 
 265; 38 W. B. 33; 54 J. P. 148 - - 60 
 
 Deschamps v. Miller, 77 L. J. Ch. 416; [1908] 1 Ch. 856; 98 
 
 L. T. 564 - ■ - - 1 
 
 Detillin v. Gale, 7 Ves. 583 - 120 
 
 Devenish v. Baines, Prec. Ch. 3 5 
 
 Dickinson v. Barrow, 73 L. J. Ch. 701 ; [1904] 2 Ch. 339 ; 91 
 
 L. T. 161 - - - - 163 
 
 Dickinson v. Burrell, 35 L. J. Ch. 71 ; L. E. 1 Eq. 337 ; 12 Jur. 
 
 N. S. 199 ; 14 W. B. 412 - 67 
 
 Dickonson v. Player, C. P. C. 178; 2 Jur. 870 196 
 
 Dickson, Be, Hill v. Grant, 54 L. J. Ch. 510 ; 29 Ch. D. 331 ; 
 
 52 L. T. 707 ; 33 W. B. 511 - - 90 
 
 Dilkes v. Broadmead, 2 De G. P. & J. 566 ; 30 L. J. Ch. 268 129 
 Dillon, Be, Duffln v. Duffln, 59 L. J. Ch. 420 ; 44 Ch. D. 76 ; 
 
 62 L. T. 614 ; 38 "W. B. 369 78, 81 
 
 Dillon v. Parker, 1 Swanst. 359 ; Jac. 505 ; 1 CI. & F. 303 53 
 
 Dilrow v. Bone, 3 Gin 5 . 538 ; 31 L. J. Ch. 417 ; 8 Jur. N. S. 
 
 276; 6 L.T. 71; 10W. E. 437 - 170 
 
 Dimes v. Scott, 4 Buss. 195 202 
 
 Dive, Be, Dive v. Boebuck, 78 L. J. Ch. 248 ; [1909] 1 Ch. 
 
 328 ; 100 L. T. 190 ' - 204 
 
 Dix v. Burford, 19 Beav. 409 - - 201 
 
 Dixon, Be, Heynes v. Dixon, 69 L. J. Ch. 609; [1900] 2 Ch. 
 
 561 ; 83 L. T. 129 ; 48 W. B. 665 66, 98 
 
 Dixon v. Gayfere, 1 De G. & J. 655 ; 27 L. J. Ch. 148 ; 3 Jur. 
 
 N. S. 1157; 6 W. E. 52 - 211 
 
 Dixon v. Mucklestone, 42 L. J. Ch. 210; L. E. 8 Ch. 155 ; 26 
 
 L. T. 752; 20 W. E. 619 . 133 
 
 Dixon v . Samson, 2 Y. & C. Ex. 566 ; 1 Jur. 495 156 
 
 Dixon's Trusts, Ee, Dixon v. Dixon, 48 L. J. Ch. 592 ; 9 Ch. D. 
 
 587; 40 L. T. 208; 27 W. E. 282 - 9s 
 
 Dodson, Ee, Tates v. Morton, 77 L. J. Ch. 830 ; [1908] 2 Ch. 
 
 638 ; 98 L. T. 395 - 49, 135 
 
 Doe v. Bancks, 4 B. & Aid. 401 - - 57 
 
 Doe v. Birch, 1 M. & W. 402 ; 5 L. J. Ex. 185 ; Tyr. & G. 
 
 769 - - - - 57 
 
 Doe v. Burlington (Earl), 5 B. & Ad. 507 ; 3 L. J. K. B. 26 ; 
 
 2 Nev. & M. 534 - - . i 137 
 
LIST OF OASES CITED. xxxv 
 
 PAGE 
 
 Doe v. Byron, 1 0. B. 623 ; 14 L. J. C. P. 207 ; 3 Dowl. & L. 
 31 - 139 
 
 Doe v. Day, 2 Q. B. 147 ; 12 L. J. Q. B. 86 ; 2 G. & D. 757 ; 
 
 6 Jut. 913 - 118 
 Doe v. Manning, 9 Bast, 59 78, 169 
 Doe v. Passingham, 6 B. & 0. 304 ; 5 L. J. (0. S.) K. B. 146 ; 
 
 9 Dowl. & E. 416 - 176 
 
 Doe d. Whitfield v. Eoe, 3 Taunt. 402 - 139 
 
 Doe v. Stevens (or Jeapes), 3 B. & Ad. 299 ; 1 L. J. K B. 
 
 101 - 137 
 
 Doe v. Tom, 4 Q. B. 615 ; 12 L. J. Q. B. 264 ; 7 Jur. 847 118 
 
 Doe v. "Watts, 7 T. E. 83 46 
 
 Doloret v. Eothschild, 1 Sim. & St. 590 ; 2 L. J. (O. S.) Ch. 
 
 125 - - 162 
 
 Dominion Coal Co. v. Dominion Steel and Iron Co., 78 L. J. 
 
 P. C. 115; T1909] A. C. 293; 100 L. T. 245; 25 T. L. E. 
 
 309 - 161 
 
 Douglas, Ee, Wood v. Douglas, 54 L. J. Ch. 421 ; 28 Ch. D. 
 
 327 ; 52 L. T. 131 ; 33 W. E. 390 - 103 
 
 Douglas v. Andrews, 12 Beav. 310; 19 L. J. Ch. 69; 14 
 
 Jur. 73 8 
 
 Douglas v. Douglas, 41 L. J. Ch. 74 ; L. E. 12 Eq. 617 ; 25 
 
 L. T. 530; 20 W. E. 55 53 
 
 Douglas Menzies v. Umphelby, 77 L. J. P. C. 64; [1908] 
 
 A. C. 224 ; 98 L. T. 509 56, 156 
 
 Dover Coalfield Extension, Ee, 77 L. J. Ch. 94 ; [1908] 1 Ch. 
 
 65; 98 L. T. 31 - 72, 184 
 
 Dowell v. Dew, 1 T. & C. Ch. 345 ; afid. 12 L. J. Ch. 158 ; 
 
 7 Jur. 117 144 
 Downes v. Grazebrook, 3 Mer. 200 69, 178 
 Downshire (Marq.) v. Sandys (Lady), 6 Ves. 107 214 
 Dowse v. Gorton, 60 L. J. Ch. 745; [1891] A. C. 190; 64 L. T. 
 
 809; 40 W. E. 17 - 189, 190 
 
 Dowsett, Ee, Dowsett v. Meakin, 70 L. J. Ch. 149 ; [1901] 1 
 
 Ch. 398 ; 49 W. E. 268 - 24 
 
 Doyle v. Blake, 2 Soh. & L. 231' 193 
 
 Dresel v. Ellis, 74 L. J. K. B. 401 ; [1905] 1 K. B. 574 ; 98 
 
 L. T. 816 ; 53 W. E. 353 - 96 
 
 Drever v. Mawdesley, 18 L. J. Ch. 273 ; 8 Jur. 547 200 
 
 Drinkwater v. Batcliffe, 44 L. J. Ch. 605 ; L. E. 20 Eq. 528 ; 
 
 33 L. T. 417; 24 W. E. 25 - 135 
 
 Drummond, Ee, 1 M. & Cr. 627 ; 6 L. J. Ch. 58 8 
 
 Drury v. Smith, 1 P. Wms. 404 81 
 
 Drysdale v. Maoe, 5 De G. M. & G. 103; 23 L. J. Ch. 230; 
 
 2 W. E. 341 ; 2 Eq. E. 386 - - 62 
 
 c2 
 
xxxyi LIST OF OASES OITED. 
 
 PAQH 
 
 Duffleld v. Duffield (or Elves), 3 Bli. N. S. 260 ; 1 D. & 01. 
 
 268, 395 - - 156 
 
 Dummer v. Pitolier, 2 M. & K. 262 ; Coop. t. Brough. 257 - 63 
 Dunbar v. Dunbar, 79 L. J. Oh. 70; [1909] 2 Oh. 639; 101 
 
 L. T. 553; 26 T. L. E. 21 - - - 34 
 
 Duncan v. Campbell, 12 Sim. 616 ; 6 Jur. 677 146 
 
 Duncan v. Cashin, 44 L. J. C. P. 225 ; L. B. 10 C. P. 554 ; 32 
 
 L. T. 497 ; 23 W. E. 561 - 96 
 
 Duncuft v. Albrecht, 12 Sim. 189 - 162 
 
 Durham Bros. v. Eobertson, 67 L. J. Q. B. 484 ; [1898] 1 Q. B. 
 
 765 ; 78 L. T. 438 - - 37, 39, 121 
 
 Dyer v. Dyer, 2 Oox, 92 - 66, 78, 174, 177, 183 
 
 Dyer v. Hargrave, 10 Ves. 505 - 62 
 
 Dykes v. Blake, 4 Bing. N. 0. 463 ; 7 L. J. C. P. 282 ; 6 Scott, 
 
 320; 1 Am. 209 - 160 
 
 Dyson v. Attorney-General, 80 L. J. K. B. 531 ; [1911] 1 K. B. 
 
 410; 27 T. L. E. 143 - -3 
 
 Eardley v. Knight, 58 L. J. Ch. 622 ; 41 Oh. D. 537 ; 60 L. T. 
 
 780; 37 W. E. 704 119 
 
 Early v. Benbow, 2 Coll. 342; 15 L. J. Ch. 169 ; 10 Jur. 169 - 155 
 East Dulwieh 745th Starr-Bowkett Building Society, Ee, 68 
 
 L. J. Ch. 196 - - 204 
 
 Eastern Counties Bail-way v. Hawkes, 5 H. L. C. 331 ; 24 L. J. 
 
 Ch. 601 ; 3 W. E. 699 161 
 
 Eastern Telegraph Co. v. Dent, 68 L. J. Q. B. 564; [1899] 1 
 
 Q. B. 835; 78 L. T. 713 - 140 
 
 Ecclesiastical Commrs. v. Pinney, 69 L. J. Ch. 844 ; [1900] 2 
 
 Ch. 736 ; 83 L. T. 384 ; 49 W. E. 82 189 
 
 Ede v. Knowles, 2 T. & C. Ch. 172 - 126 
 
 Edge & Sons (Win.), Ltd. v. Wm. Niccols & Sons, Ltd., 80 
 
 L. J. Ch. 744 ; [1911] A. C. 693 ; 105 L. T. 459 ; 27 T. L. E. 
 
 555 - - 74 
 
 Edge v. Worthington, 1 Cox, 211 126 
 
 Edmondsonv. Copland, 80 L. J. Ch. 532; [1911] 2 Ch. 301; 
 
 105 L. T. 8 ; 27 T. L. E. 446 - 123 
 
 Edwards, Ee, 48 L. J. Ch. 233 ; 10 Ch. D. 605 ; 40 L. T. 113 ; 
 
 27 W. E. 611 - 7, 86 
 
 Edwards v. Abrey, 2 Ph. 37 ; 15 L. J. Ch. 404 ; 2 Coop. t. Cott. 
 
 177 ; 10 Jur. 650 - 8 
 
 Edwards v. Freeman, 2 P. Wms. 435 - 157 
 
 Edwards v. Jones, 1 M. & Cr. 226 ; 5 L. J. Ch. 194 78, 81, 170 
 Edwards v. McLeay, G. Coop. 308 ; afid. 2 Swanst. 287 159 
 
 Edwards v. West, 47 L. J. Ch. 463 ; 7 Oh. D. 858 ; 38 L. T. 
 
 481 ; 26 W. E. 507 - - 49 
 

 
 
 - 
 
 194 
 
 23 L. 
 
 J. 
 
 Oh. 
 
 348; 
 
 
 - 
 
 
 - 
 
 
 171 
 
 694 
 
 
 
 
 206 
 
 LIST OF GASES CITED. 
 
 Egbert v. Butter, 21 Beav. 560 
 
 Egerton v. Brownlow (Earl), 4 H, L, C. 1 ; 
 
 18 Jut. 71 
 Egerton v. Jones, 3 Sim. 392 ; 1 Buss. & M. 
 Egg v, Devey, 10 Beav. 444 ; 16 L. J. Oh. 509 ; 11 Jur. 1023 - 138 
 Ehrmann v. Bartholomew, 67 L. J. Ch. 319 ; [1898] 1 Ch. 671 - 168 
 Elibank (Lady) v. Montolieu, 5 Ves. 737 97 
 
 Ellenborough, Be, Towry-Law v. Burne, 72 L. J. Ch. 218 ; 
 
 [1903] 1 Ch. 697 ; 87 L. T. 714 ; 51 W. B. 315 - 78 
 
 Elliot v. N. E. By., 10 H. L. C. 333; 32 L. J. Oh. 402 ; 9 
 
 Jur. N. S. 555 ; 8 L. T. 337 ; 11 W. B. 604 ; 2 N. B. 87 92 
 
 Ellis v. Kerr, 79 L. J. Ch. 291 ; [1910] 1 Ch. 529 ; 102 L. T. 
 
 417 - 69 
 
 Ellis v. Bogers, 29 Ch. D. 661 ; 53 L. T. 377 - 207 
 
 Ellison v. Ellison, 6 Ves. 656 79 
 
 Emmerson v. Heelis, 2 Taunt. 38 160 
 
 Eno v, Tatham, 3 De G% J. & S. 443 ; 32 L. J. Ch. 311 ; 9 Jur. 
 
 N. S. 481 ; 8 L. T. 127 ; 11 W. E. 475 26 
 
 Espin v. Pemberton, 3 De G. & J. 547 ; 28 L. J. Oh. 311 ; 5 
 
 Jur. N. S. 157 ; 7 W. E. 221 131 
 
 Essery v. Cowlard, 53 L. J. Ch. 661 ; 26 Ch. D. 191 ; 51 L. T. 
 
 60 ; 32 W. B. 518 - 169 
 
 Evans, Be, 21 Ch. D. 297 ; 46 L. T. 785 ; 30 W. E. 645 8 
 
 Evans, Be, Evans v. Powell, 78 L. J. Ch. 441 ; [1909] 1 Ch. 
 
 784 ; 100 L. T. 779 - - - 24 
 
 Evans, Be, Welch v. Channell, 53 L. J. Ch. 709 ; 26 Ch. D. 
 
 58 ; 51 L. T. 175 ; 32 W. B. 736 9 
 
 Evans v. Coventry, 3 Drew. 75 13 
 
 Evans v. Davis, 48 L. J. Ch. 223 ; 10 Ch. D. 747 ; 39 L. T. 
 
 391 ; 27 W. B. 285 - 165 
 
 Evans v. Llewellin, 1 Cox, 333 ; 2 Bro. C. O. 150 58 
 
 Evans v. Saunders, 1 Drew. 415; 22 L. J. Ch. 471; 17 Jur. 
 
 338; 1 W. B. 529; revd. 6 De Q. M. & G. 654; 8 H. L. C. 
 
 721; 31 L. J. Ch. 233; 7 Jur. N. S. 1293; 5 L. T. 129; 9 
 
 W. E. 501 - - 144 
 
 Ewart v. Fryer, 70 L. J. Ch. 138; [1901] 1 Ch. 499 ; 86 L. T. 
 
 676 - 141 
 
 Ewing v. Orr-Ewing, 53 L. J. Ch. 435 ; 9 App. Cas. 34 ; 10 
 
 App. Cas. 465 - 3 
 
 Exhall Coal Co., Be, Bleckley, Be, 35 Beav. 449 ; 12 Jur. N. S. 
 
 757 ; 14 L. T. 280 ; 14 W. B. 599 192 
 
 Eyre v. Hanson, 2 Beav. 478 ; 9 L. J. Ch. 302 120 
 
 Eyre v. Hughes, 45 L. J. Ch. 395 ; 2 Ch. D. 148 ; 34 L. T. 
 
 211; 24 W. E. 597 - - - 71 
 
 Eyre v. Shaftesbury (Countess), 2 P. Wms. 112 - 87 
 
xxxviii LIST OF CASES CITED. 
 
 PAGE 
 
 F. v. F., 71 L. J. Ch. 416 ; [1902] 1 Oh. 688 - 85 
 
 Fabrigas v. Mostyn, 1 Cowper, 161 ; Shirley's L. 0. 634 3 
 
 Fairer v. Parle, 3 Oh. D. 309 ; 45 L. J. Ch. 760 ; 35 L. T. 27 - 31 
 Fairthorne v. Weston, 3 Ha. 387; 13 L. J. Ch. 263; 8 Jur. 
 
 353 - 13. 
 
 Farmer v. Pitt, 71 L. J. Ch. 500; [1902] 1 Ch. 954; 50 W. E. 
 
 453 - - 127 
 
 Farquharson v. Cave, 15 L. J. Ch. 137 ; 2 Coll. 356 81 
 
 Farquharson v. Floyer, 45 L. J. Oh. 750; 3 Ch. D. 109; 35 
 
 L. T. 355 - 102 
 
 Farrand v. Yorks. Bank, 58 L. J. Ch. 38; 40 Ch. D. 182; 60 
 
 L. T. 669; 37 W. E. 318 - 135 
 
 Farrar v. Farrars, Ltd., 58 L. J. Ch. 185 ; 40 Ch. D. 395 ; 60 
 
 L. T. 121 ; 37 W. E. 196 - 72 
 
 Farrer v. Hutchinson, 3 Y. & C. Ex. 692 ; 9 L. J. Ex. Eq. 10 ; 
 
 3 Jur. 1119 - 18- 
 
 Fauntleroy v. Beebe, 80 L. J. Ch. 654 ; [1911] 2 Ch. 257 ; 104 
 
 L. T. 704 - 49, 135 
 
 Fazakerly v. Coulshaw, 24 L. T. 773; 19 W. E. 793 - 191 
 
 Fector v. Philpott, 12 Price, 197 126 
 
 Fells v. Bead, 3 Ves. 70 - 43 
 
 Fenner v. Wilson, 62 L. J. Ch. 984 ; [1893] 2 Ch. 656 ; 68 
 
 L. T. 748 ; 42 W. E. 57 ; 3 E. 629 93 
 
 Fenwick v. Bulman, L. E. 9 Eq. 165; 21 L. T. 628 ; 18 W. E. 
 
 179 208 
 
 Fen-wick v. Potts, 8 De G. M. & G. 506 126 
 
 Ferguson v. Wilson, L. E. 2 Oh. 77 ; 12 Jur. N. S. 912 ; 15 
 
 L. T. 230; 15 W. E. 80 161 
 
 Fettiplace v. Gorges, 1 Ves. jun. 46 98 
 
 Fickus, Ee, Farina v. Fickus, 69 L. J. Ch. 161 ; [1900] 1 Oh. 
 
 331 ; 81 L. T. 749 ; 48 W. E. 250 79 
 
 Field v. Brown, 17 Bear. 146 87 
 
 Field v. Moore, 7 De G. M. & G. 691 ; 25 L. J. Ch. 66 ; 2 Jur. 
 
 N. S. 145; 4W. E. 187 115 
 
 Fildes v. Hooker, 3 Madd. 193 - - 208 
 
 Firmer v. Gott, 4 Bro. P. O. 230 73 
 
 Finch v. Finch, 15 Ves. 43 34 
 
 Finch v. Prescott, 43 L. J. Ch. 728; L. E. 17 Eq. 554; 30 
 
 L. T. 156; 22 W. E. 437 - 191 
 
 Fine Cotton Spinners and Doublers' Assn. t>. Hardwood, Cash 
 
 & Co., Ltd., 76 L. J. Ch. 670; [1907] 2 Ch. 184; 97 L. T. 
 
 45 ; 23 T. L. E. 537 - 74 
 
 Firth v. Midland Eailway, 44 L. J. Ch. 313 ; L. E. 20 Eq. 100 - 160 
 Fish, Ee, Bennett v. Bennett, 62 L. J. Ch. 977 ; [1893] 2 Ch. 
 
 413 ; 69 L. T. 233 ; 2 E. 467 184 
 
LIST OF CASES CITED. xxxix 
 
 PAGE 
 
 Fitchet v. Adams, 2 Stra. 1128 - - - - 121 
 
 Fitzgerald's Trustee v. Mellersh, 61 L. J. Ch. 231 ; [1892] 1 Ch. 
 
 385 ; 66 L. T. 178 ; 40 W. E. 251 - -123 
 
 Flamank, Ee, Wood v. Cock, 68 L. J. Oh. 518 ; 40 Ch. D. 461 ; 
 
 69 L. T. 376; 37 E. E. 502 - 66,98 
 
 Fletcher v. Ashburner, 1 Bro. C. C.495 - 210 
 
 Fletcher v. Collis, T4 L. J. Ch. 502 ; [1905] 2 Ch. 24 ; 92 L. T. 
 
 749; 53 W. E. 516 192 
 
 Fletcher v. Nokes, 66 L. J. Ch. 177 ; [1896] 1 Ch. 271 ; 76 
 
 L. T. 107 ; 45 W. E. 471 ; 61 J. P. 232 - 140 
 
 Fletcher v. Eodgers, 27 W. E. 97 - - 91 
 
 Flight v. BoUand, 4 Euss. 298 - - - 158 
 
 Flint v. Howard, 62 L. J. Ch. 804 ; [1893] 2 Ch. 54 ; 68 L. T. 
 
 390 ; 2 E. 386 - - 101 
 
 Foljambe v. Willoughby, 2 Sim. & S. 165 8 
 
 Forbos v. Jackson, 51 L. J. Ch. 690 ; 19 Oh. D. 615 ; 30 W. E. 
 
 652 - - 111 
 
 Ford v. Foster, 41 L. J. Ch. 682; L. E. 7 Ch. 611 ; 27 L. T. 
 
 219; 20 W. E. 818 75 
 
 Fordyce v. Willis, 3 Bro. C. C. 577 - 177 
 
 Forman v. Homfray, 2 Ves. & B. 329 - 167 
 
 Forrest v. Prescott, L. E. 10 Eq. 545 ; 18 W. E. 1065 - 26 
 
 Forrest v. Shore, 32 W. E. 356 - 120 
 
 Forster v. Hoggart, 15 Q. B. 155 ; 19 L. J. Q. B. 340 ; 14 Jur. 
 
 757 - - - 206 
 
 Foss v. Harbottle, 2 Ha. 461 - 13, 167 
 
 Foster v. Cockerell, 3 CI. & F. 456 ; 9 Bli. N. S. 332 40 
 
 Foster v. Crabb, 12 C. B. 136 ; 21 L. J. C. P. 189 ; 16 Jur. 835 - 194 
 Foster v. Foster, 1 Ch. D. 588 - - 135 
 
 Fothergill v. Bowland, 43 L. J. Ch. 252 ; L. E. 16 Eq. 132 ; 
 
 29 L. T. 414 ; 22 W. E. 42 - 161, 162 
 
 Fowkes v. Pascoe, 44 L. J. Ch. 367 ; L. E. 10 Ch. 343 ; 32 
 
 L. T. 545; 23 W. E. 538 - 156 
 
 Fox v. Buckley, 3 Oh. D. 508; 25 W. E. 170 - 188 
 
 Fox v. Fox, L* E. 10 Eq. 286; 23 W. E. 314 90 
 
 Fox v. Mackreth, 2 Bro. 0. C. 400 ; 2 Cox, 158, 320 ; 4 Bro. 
 
 P. C. 258 - - 184 
 
 Fox v. Wright, 6 Madd. Ill 58 
 
 Foxwell v. Van Grutten, 66 L. J. Ch. 53; [1897] 1 Ch. 83; 
 
 75 L. T. 368 ... 16 
 
 FraH v. Ellis, 16 Beav. 350 ; 22 L. J. Ch. 467 ; 1 W. E. 72 - 211, 212 
 France v. Woods, Taml. 172 - 200 
 
 Francis v. Francis, 5 De G. M. & G. 108 198 
 
 Francis v. Harrison, 59 L. J. Ch. 248 ; 43 Ch. D. 183; 61 L. T. 
 
 667 ; 38 W. E.. 329 - - - 117 
 
xl LIST OF CASES CITED. 
 
 PAGE 
 
 Francis v. Minton, 36 L. J. 0. P. 201 ; L. E. 2 C. P. 543 ; 16 
 
 L. T. 352; 15 W. E. 788 - 137 
 
 Fraser, Ee, Lowther v. Fraser, 73 L. J. Ch. 481 ; [1904] 1 Ch. 
 
 726 ; 91 L. T. 48 ; 20 T. L. E. 414 25 
 
 Fraser v. Murdoch, 6 App. Cas. 855 - 188 
 
 Fraser v. Wood, 8 Beav. 339 ; 14 L. J. Oh. 220 206 
 
 Frayne v, Taylor, 33 L. J. Ch. 228; 10 Jur. N. S. 119; 12 
 
 W. E. 287 - - - 49 
 
 Frazer v. Jones, 5 Hare, 475; affd. 17 L. J. Ch. 353; 12 Jur. 
 
 443 - - 133 
 
 Freeman v. Fairlie, 3 Mer. 24 - 17 
 
 Freeman v. Freeman, 5 De G. M. & G. 704 ; 23 L. J. Ch. 838 ; 
 
 2 W. E. 638 - 156 
 
 Freeman's Settlement Trust, Ee, 57 L. J. Ch. 160; 37 Ch. D. 
 
 148; 57 L. T. 798; 36 W. E. 71. . 184 
 
 French, Ee, 37 L. J. Ch. 537; L. E. 3 Ch. 317; 18 L. T. 139; 
 
 16 W. E. 657 9 
 
 French v. Macale, 2 Dr. & W. 269 ; 1 Conn. & L. 459 137 
 
 French Brewster, Ee, Walters v . French Brewster, 73 L. J. Ch. 
 
 405; [1904] 1 Ch. 713; 90 L. T. 378; 52 W. E. 377 104 
 
 Frere v. Moore, 8 Price, 475 110 
 
 Frith v. Cartland, 2 H. & M. 417; 34 L. J. Ch. 301 ; 11 Jur. 
 
 N. S. 238; 12 L. T. 175; 13 W. E. 493 - 198 
 
 Frost, Ee, 39 L. J. Ch. 808 ; L. E. 5 Ch. 699 ; 23 L. T. 233 ; 
 
 18 W. E. 986 8 
 
 Fry v. Lane, 58 L. J. Ch. 113; 40 Ch. D. 312; 60 L. T. 12; 
 
 37 W. E. 135 - 58, 59 
 
 Fry v. Tapson, 54 L. J. Ch. 224 ; 28 Ch. D. 268 ; 51 L. T. 326 ; 
 
 33 W. E. 113 - 200 
 
 Fryer v. Ewart, 71 L. J. Oh. 433; [1902] A. C. 187 ; 86 L. T. 
 
 242 - - - 141 
 
 Fuente's Trade Mark, Ee, 60 L. J. Ch. 308 ; [1891] 2 Ch. 166 ; 
 
 64 L. T. 196; 39 W. E. 489- 75 
 
 Fuller v. Knight, 6 Beav. 205 ; 12 L. J. Ch. 182 - 189, 192 
 
 Fullwood v. Fullwood, 47 L. J. Ch. 459 ; 9 Ch. D. 176 ; 38 
 
 L. T. 380 ; 26 W. E. 435 76, 92 
 
 Furness, Ee, Furness v. Stalkartt, 70 L. J. Ch. 580 ; [1901] 
 
 2Ch. 346; 84 L. T. 680 - 155 
 
 Furnival v. Bogle, 4 Euss. 142 ; 6 L. J. (0. S.) Ch. 91 46 
 
 Gabbit v. Cavendish, 2 Anstr. 547 18 
 
 Gadd v. Worral, 2 Anstr. 555 - 93 
 
 Gainsforda. Dunn, 43 L. J. Ch. 403; L. E. 17 Eq. 405; 30 
 L. T. 283; 22 W. E. 499 - - 145 
 
LIST OF GASES CITED. xli 
 
 PAGE 
 
 Garbutt v. Fawcus, 45 L. J. Ch. 133; 1 Ch. D. 155 ; 33 L. T. 
 
 617 ; 24 W. R. 89 - 3 
 
 Gardner v. London, Chatham and Dover Railway, 36 L. J. Ch. 
 
 323; L. R. 2 Ch. 201; 15 L. T. 552; 15 W. R. 324 14, 117 
 
 Gardner v. Parker, 3 Madd. 184 - 80 
 
 Garland, Exp., 10 Ves. 110 189 
 
 Garrett v. Wilkinson, 2 De G. & Sm. 244 34, 66 
 
 Garth v. Cotton, 1 Ves. sen. 524 119 
 
 Gaskin v. Balls, 13 Ch. D. 324 ; 28 W. R. 552 91 
 
 Gasquoine, Re, Gasquoine v. Gasquoine, 63 L. J. Ch. 377 ; 
 
 [1894] 1 Ch. 370 ; 70 L. T. 196 ; 7 R. 449 - 194 
 
 Gedye v. Montrose (Duke), 5 W. R. 537 158 
 
 Gee v. Pearse, 2 De G. & Sm. 325 210 
 
 General Accident Assurance Corp. v. Noel, 71 L. J. E. B. 236 ; 
 
 [1902] 1 K. B. 377 ; 96 L. T. 555 ; 50 W. R. 381 56, 137, 158 
 General Billposting Co. v. Atkinson, 78 L. J. Ch. 77 ; [1909] 
 
 A. C. 118; 99 L. T. 943; 25 T. L. R. 178 - 160 
 
 George, Re, 47 L. J. Ch. 118; 5 Ch. D. 837; 37 L. T. 204; 
 
 26 W. R. 65 - 90 
 
 George v. Milbanke, 9 Ves. 190 144, 145 
 
 Gething v. Keighley, 48 L. J. Ch. 45 ; 9 Ch. D. 547 ; 27 W. R. 
 
 283 - - 20 
 
 Giacometti v. Prodgers, L. R. 8 Ch. 338; 28 W. R. 432 ; 21 
 
 "W. R. 375 - - 97 
 
 Gibbs v. Daniel, 4 Gift 3 . 1 ; 9 Jur. N. S. 636; 7 L. T. 27; 10 
 
 W. R. 688 - 68 
 
 Gibbs v. Guild, 51 L. J. Q. B. 313 ; 9 Q. B. 
 
 248 ; 30 W. R. 591 
 Gibson, Re, Matthews v. Foulsham, 35 L. J. 
 
 Eq. 669; 14 W. R. 818 
 Gibson v. Russell, 2 V. & C. Ch. 104; 7 Jur. 
 Giddmgs v. Giddings, 3 Rubs. 241 
 Gifford (Lord) v. Fitzhardinge (Lord), 68 
 
 [1899] 2 Ch. 32; 81 L. T. 106 ; 47 W. R. 618 104 
 
 Gilchrist Charity, Re, 64 L. J. Ch. 298 ; [1895] 1 Ch. 367 ; 
 
 71 L. T. 875; 43 W. R. 234; 13 R. 228 11 
 
 Gillins, Re, Inglis v. Gillins, 78 L. J. Ch. 244 ; [1909] 1 Ch. 
 
 345 ; 100 L. T. 226 - 24 
 
 Gisborne v. Gisborne, 46 L. J. Ch. 556 ; 2 App. Cas. 300 ; 36 
 
 L. T. 564 ; 25 W. R. 516 - 7 
 
 Gist, Re, 73 L. J. Ch. 251 ; [1904] 1 Ch. 398 ; 90 L. T. 35 ; 
 
 52 W. R. 422 - 9, 49 
 
 Glasdir Copper Mines, Ltd., Re, English Elactro-Metallurgic 
 
 Co. v. Glasdir Copper Mines, Ltd., 75 L. J. Ch. 109; [1906] 
 
 1 Ch. 365 ; 94 L. T. 8 ; 22 T. L. R. 100 14 
 
 Glazebrook v. Woodrow, 8 T. R. 366 - - 211 
 
 D. 
 
 59; 
 
 46 L. T. 
 
 
 
 
 - 
 
 
 6 
 
 Oh, 
 
 596 ; L 
 
 . R. 2 
 
 
 
 
 
 
 23 
 
 875 
 
 59, 
 
 66, 68 
 
 ,73 
 
 
 
 
 180, 
 
 181 
 
 L. 
 
 J. 
 
 Ch. 
 
 529; 
 
 
xlii LIST OF CASES CITED. 
 
 Gloag and Miller's Contract, In re, 52 L. J. Ch. 654 ; 23 
 
 Oh. D. 320; 48 L. T. 629; 31 W. B. 601 - 207 
 
 Glover, Exp., 1 Harr. & W. 508 ; 4 Dowl. P. 0. 291 - 83 
 
 Glubb, Be, Bamfield v. Sogers, 69 L. J. Oh. 278; [1900] 1 Ch. 
 
 354 ; 82 L. T. 412 - - 78 
 
 Goddard v. Carlisle, 9 Pri. 161 70 
 
 Goddard v. Jeffreys, 51 L. J. Ch. 58 ; 45 L. T. 674; 30 W. B. 
 
 269 106 
 
 Godfrey v. Littell, Taml. 221 ; 1 Buss. & M. 59 ; 2 Buss. &M. 
 
 630 - 42 
 
 Gofton v. Mills, Prec. Ch. 9 186 
 
 Golds v. Greenfield, 2 Sm. & G. 476 ; 23 L. J. 639 ; 2 W. E. 
 
 583 - 155 
 
 Goldsmid v. Goldsmid, 2 Ha. 187; 12 L. J. Ch. 113; 7 Jur. 
 
 1 1 - 146, 149 
 
 Goldsmid v. Goldsmid, 1 Swanst. 219 150, 154 
 
 Goodright d. Alston v. Wells, 2 Dougl. 771 - 103 
 
 Goodwin v. Waghorn, 4 L. J. (N. S.) Ch. 172 126, 127 
 
 Gordon v. Gordon, 3 Swanst. 400 45 
 
 Gordon v. Gordon, 73 L. J. P. 41 ; [1904] P. 163 ; 90 L. T. 
 
 597 ; 52 W. E. 389 ; 20 T. L. E. 272 94 
 
 Gordon v. Street, 69 L. J. Q. B. 45 ; [1899] 2 Q. B. 641 ; 81 
 
 L. T. 237 ; 48 W. E. 158 - 159 
 
 Gorringe v. Irwell India Bubber and Gutta Percha "Works, 56 
 
 L. J. Ch. 85 ; 34 Ch. D. 128 ; 55 L. T. 572 ; 35 W. E. 86 40 
 
 Govott v. Bichinond, 7 Sim. 1 64 
 
 Gowland v. De Paria, 17 Ves. 20 58 
 
 Goy & Co., Ltd., Ee, Parmer v. Goy & Co., Ltd., 69 L. J. Ch. 
 
 481 ; [1900] 2 Ch. 149 ; 83 L. T. 309 ; 48 W. E. 425 - 29, 38, 111 
 Graham, Ee, 39 L. J. Ch. 724 ; L. B. 10 Eq. 530 ; 22 L. T. 
 
 904; 18 W. B. 988 86 
 
 Graham v. Campbell, 47 L. J. Ch. 593 ; 7 Ch. D. 490 ; 38 L. T. 
 
 195 ; 26 W. E. 336 93, 95 
 
 Graham v. Oliver, 3 Beav. 124 206, 207 
 
 Grange, Ee, Chadwick v. Grange, 76 L. J. Ch. 456; [1907] 2 
 
 Ch. 20 ; 96 L. T. 867 - - ■ 48 
 
 Grange v. White, 50 L. J. Ch. 620; IS Ch. D. 612; 45 L. T. 
 
 128; 29 W. E. 713 136 
 
 Grant v. Grant, 3 Euss. 598 ; 5 L. J. (O. S.) Ch. 145 ; 3 Sim. 
 
 340 - - 142 
 
 Gray v. Bonsall, 73 L. J. K. B. 515; [1904] 1 K. B. 601 ; 90 
 
 L. T. 404 ; 52 W. B. 387 ; 20 T. L. B. 335 139 
 
 Great Northern By. and Sanderson, In re, 53 L. J. Ch. 445 ; 
 
 25 Ch. D. 788 ; 50 L. T. 87 ; 32 W. E. 519 - - 159 
 
 Great Western Insurance v. Cunliffo, 43 L. J. Ch. 741 ; L. E. 
 
 9 Ch. 525 ; 30 L. T. 661 - 72, 184 
 
LIST OF CASES CITED. xliii 
 
 FADE 
 
 Great Western By. v. Birmingham and Oxford Junction By., 
 
 2 Ph. 597 ; 17 L. J. Oh. 243 ; 12 Jur. 23, 106 ; 5 By. Cas. 
 
 241 - - - - - - 15, lao 
 
 Green v. Baverstock, 14 C. B. N. S. 204; 32 L. J. C. P. 181 ; 
 
 10 Jur. N. S. 47 ; 8 L. T. 360 ; 11 W. B. 128 63 
 
 Green v. Green, 1 Coop. t. Cott. 206 ; 2 Sim. 394 94 
 
 Green v. Green, 5 Ha. 400, n. - 97 
 
 Green v. Pigot, 1 Bro. 0. 0. 103 ; 2 Dick, 585 89 
 
 Green v. Sevin, 49 L. J. Oh. 160 ; 13 Ch. D. 589 ; 41 L. T. 724 ; 
 
 44 J. P. 282 - - 209 
 
 Greenhalgh v. Brindley, 70 L. J. Ch. 740; [1901] 2 Oh. 324; 
 
 84 L. T. 763; 49 W. B. 597 - - - 61 
 
 Greening v. Barber, cited 1 Sch. & L. 12 88 
 
 Greenwood v. Sutcliffe, 61 L. J. Ch. 59 ; [1892] 1 Ch. 1 ; 65 
 
 L. T. 797 ; 40 W. B. 214 - 120 
 
 Gretton v. Haward, 1 Swanst. 409 - 54 
 
 Greville v. Parker, 79 L, J. P. C. 86 ; [1910] A. 0. 335 ; 102 
 
 L. T. 380 ; 26 T. L. B. 375 - - 140 
 
 Grey v. Grey, 2 Swanst. 594 34 
 
 Griffith v. Hughes, 62 L. J. Ch. 135 ; [1892] 3 Ch. 105 ; 66 
 
 L. T. 760 ; 40 W. B. 524 - - 192 
 
 Griffith v. Pound, 59 L. J. Ch. 522 ; 42 Ch. D. 553 117 
 
 Griffith v. Bicketts, 7 Hare, 299; 10 L. J. Ch. 100, 399; 14 
 
 Jur. 166, 325 47 
 
 Griffiths v. Eobins, 1 Madd. 191 - 59 
 
 Grimthorpe (Lord), Be, Beckett v. Grimthorpe (Lord), 78 L. J. 
 
 Ch. 20; [1908] 2 Ch. 675 ; 25 T. L. E. 15 - 49 
 
 Grimwood v. Moss, 41 L. J. C. P. 239 ; L. E. 7 0. P. 360 ; 27 
 
 L. T. 268 ; 20 W. E. 972 - 57 
 
 Grindey, Ee, Clews v. Grindey, 67 L. J. Ch. 624; T1898] 2 Ch. 
 
 593 ; 79 L. T. 105 ; 47 W. E. 53 204 
 
 Guest v. Smythe, 39 L. J. Ch. 536 ; L. E. 5 Ch. 551 ; 22 L. T. 
 
 563 ; 18 W. E. 742 70 
 
 Gunnis v. Erhart, 1 H. Bl. 289 207 
 
 Gurnell v. Gardner, 4 Giff . 626 ; 9 Jur, N. S. 1220 ; 9 L. T. 
 
 367 ; 12 W. E. 67 37 
 
 Gwatkin v. Bird, 52 L. J. Q. B. 263 16 
 
 Gynn v. Gilbard, 1 Dr. & Sm. 356; 7 Jur. N. S. 91 86 
 
 Hacking v. Whalley, 51 L. J. Ch. 944 - 136 
 
 Hadfield's Case, 42 L. J. C. P. 146 ; L. E. 8 C. P. 306 ; 2 
 
 Hopw. & 0. 89; 28 L. T. 901 ; 21 W. B. 171 - 176 
 
 Hadley v. London Bank of Scotland, 3 De G. J. & S. 63; 11 
 
 Jur. N. S. 554 ; 12 L. T. 747 ; 13 W. B. 978 - 15 
 
xliv 'LIST OF OASES CITED. 
 
 PAGE 
 
 Haig v. Hernan, 8 01. & F. 320 179 
 
 Hall, Exp., 48 L. J. Bk. 79 ; 10 Ch. D. 615 ; 40 L. T. 179 ; 27 
 
 W. B. 385 - - 37 
 
 Hall v. Hall, 3 Mao. & G. 79 ; 20 L. J. Ch. 585 ; 15 Jur. 363 - 13 
 
 Hall v. Hall, 80 L. J. Ch. 340; [1911] 1 Ch. 487; 104 L. T. 
 529 - - - 98 
 
 Hall v. Hallet, 1 Cox, 134 - 202 
 
 Hall v. "Warren, 9 Ves. 605 - - 158 
 
 Hallows v. Lloyd, 58 L. J. Ch. 105 ; 39 Ch. D. 686 ; 59 L. T. 
 
 603 ; 37 W. B. 12 42 
 
 Hamilton, Ee, Trench v. Hamilton, 64 L. J. Ch. 799 ; [1895] 
 
 2 Oh. 370 ; 72 L. T. 748 ; 43 W. E. 577 ; 12 E. 355 - - 173 
 
 Hamilton v. Hamilton, 61 L. J. Ch. 220; [1891] 2 Ch. 396; 
 
 66 L. T. 112 ; 40 W. E. 312 - J 53 
 
 Hamilton v. Jackson, 2 Jo. & L. 295 ; 8 Ir. Eq. E. 195 150 
 
 Hamilton v. Wright, 9 01. & F. Ill - 71 
 
 Hammersley v. De Biel, 12 01. & F. 45 80 
 
 Hammond v. Messenger, 7 L. J. Ch. 310 ; 9 Sim. 327 - 39 
 
 Hancock, Ee, Hancock v. Pawson, 74 L. J. Ch. 69; [1905] 1 
 
 Oh. 16; 91 L. T. 737; 53 W. E. 89 - - 53,54 
 
 Hancock v. Hancock, 57 L. J. Ch. 396; 38 Ch. D. 78 ; 58 L. T. 
 
 906; 36 W. E. 417 - 97 
 
 Hancox v. Abbey, 11 Ves. 179- - 26 
 
 Hand v. Blow, 70 L. J. Ch. 687 ; [1902] 2 Ch. 721 ; 85 L. T. 
 
 156 ; 50 W. E. 5 14 
 
 Hanley v. Pearson, 13 Ch. D. 545 ; 41 L. T. 673 107 
 
 Hanson v. Graham, 6 Ves. 239 89 
 
 Harbin v. Darby, 28 Beav. 325 ; 29 L. J. Ch. 622 ; 6 Jur. N. S. 
 
 906; 2L. T. 581; 8 W. E. 512 - 184 
 
 Haxding v. Glyn, 1 Atk. 469 ; 5 Ves. 501 ; 8 Ves. 571 - 144 
 
 Harding v. Harding, 41 L. J. Ch. 523; L. E. 13 Eq. 493; 26 
 
 L. T. 656 - - - 25 
 
 Hardoon v. Belilios, 70 L. J. P. C. 9 ; [1901] A. C. 118; 83 
 
 L. T. 573 ; 49 W. E. 209 190 
 
 Hardwicke (Lord) v. Vernon, 4 Ves. 411 18, 22 
 
 Hardy v. Metropolitan Land and Finance Co., 41 L. J. Ch. 
 
 257 ; L. E. 7 Ch. 427 ; 26 L. T. 407 ; 20 W. E. 425 174 
 
 Hare and O'More's Contract, Ee, 70 L. J. Ch. 45 ; [1901] 1 Ch. 
 
 93 ; 83 L. T. 672 ; 49 W. E. 202 - 106 
 
 Harington v. Sendall, 72 L. J. Ch. 396 ; [1903] 1 Ch. 921 ; 
 
 88 L. T. 323 ; 51 W. E. 463 190 
 
 Harmer v. Priestley, 16 Beav. 569 ; 22 L. J. Ch. 1041 ; 1 W. E. 
 
 343 - - - - . 120 
 
 Harpham v. Shaddock, 19 Ch. D. 207 ; 45 L. T. 569 ; 33 W. E. 
 
 49 - - 110 
 
LIST OF CASES CITED. xlv 
 
 Harries v. Bryant, 4 Euss. 89 - - 138 
 
 Harrington (Countess) v. Harrington (Earl), 40 L. J. Oh. 716 ; 
 
 L. E. 5 H. L. 87 ; 20 W. E. 25 - 172 
 
 Harris, Ee, Leacroft v. Harris, 78 L. J. Ch. 448; [1909] 2 Ch. 
 
 206 ; 100 L. T. 805 - - 53 
 
 Harris v. Harris, 32 Beav. 333 ; 11 W. E. 451 181 
 
 Harris v. Tubb, 58 L. J. Ch. 434 ; 42 Ch. D. 79 ; 61 L. T. 699 ; 
 38 W. E. 75 - - - - 169 
 
 Harrison, Ee, Harrison v. Harrison, 54 L. J. Ch. 617 ; 28 Ch. D. 
 
 220 ; 52 L. T. 204 ; 33 W. E. 240 - 32, 214 
 
 Harrison, Ee, Perry v. Spicer, 56 L. J. Ch. 341 ; 34 Ch. D. 
 
 214; 56 L. T. 159 ; 35 W. E. 196 - 49 
 
 Harrison v. Asher, 2 De G. & Sm. 436; 17 L. J. Ch. 452 ; 12 
 
 Jur. 833 - - 23 
 
 Harrison v. Barton, 1 J. & H. 287 ; 30 L. J. Ch. 213 ; 9 Jur. 
 
 N. S. 19; 91. E. 177 - 183 
 
 Harrison v. Forth, Prec. Ch. 51 - 129 
 
 Harrison v. Guest, 6 De G. M. & G. 424 ; 4 W. E. 585 ; 8 
 
 H. L. C. 481 - - 59, 73 
 
 Harrison v. Harrison, 42 L. J. Ch. 495 ; L. E. 8 Ch. 342 ; 28 
 
 L. T. 545 ; 21 W. E. 164, 490 - 2 
 
 Harrisons Eandall, 9 Ha. 397 ; 21 L. J. Ch. 294 ; 16 Jur. 72 - 144 
 Harrop's Estate, Ee, 3 Drew. 726; 26 L. J. Ch. 516; 3 Jur. 
 
 N. S. 380 ; 5W.E. 449 - 49 
 
 Hart v. Hart, 50 L. J. Ch. 697 ; 18 Ch. D. 670; 45 L. T. 13 ; 
 
 30 W. E. 8 - 84, 107 
 
 Hart v. Hervig, 42 L. J. Ch. 457 ; L. E. 8 Ch. 860 ; 29 L. T. 
 
 47 ; 21 W. E. 663 - - 162 
 
 Hart v. Tulk, 2 De G. M. & G. 313 ; 22 L. J. Ch. 649 - 152 
 
 Hart's Trusts, Ee, 3 De G. & J. 195 ; 28 L. J. Ch. 7 ; 4 Jur. 
 
 N. S. 1264 ; 7 W. E. 28 - 89 
 
 Hartley v. Pendarves, 70 L. J. Ch. 745 ; [1901] 2 Ch. 498 ; 85 
 
 L. T. 64; 50 W. E. 56 9 
 
 Hartopp v. Hartopp, 21 Beav. 259 ; 25 L. J. Ch. 471 ; 2 Jur. 
 
 N. 8. 794 66 
 
 Hartridge and Allender, Ex p., L. E. 5 Ch. 671 ; 20 L. T. 718 ; 
 17 W. E. 946 - - - - - - 4 
 
 Harvey, Ee, Harvey v. Harvey, 70 L. J. Ch. 694 ; [1901] 2 
 
 Ch. 290 ; 85 L. T. 36 ; 49 W. E. 495 51 
 
 Harvey, Ee, Harvey v. Hobday, 65 L. J. Ch. 370 ; [1896] 1 
 
 Ch. 137 ; 73 L. T. 613 ; 44 W. E. 242 - 104 
 
 Harvey v. Harvey, 5 Beav. 134 - 179 
 
 Harvey v. Palmer, 4 De G. & Sm. 425 ; 15 Jur. 982 155 
 
 Harvey v. Tebbutt, U.&W. 197 120 
 
 Haslam and Hier Evans, Ee, 71 L. J. Ch. 374; [1902] 1 Ch. 
 765 ; 86 L. T. 663 ; 50 W. E. 444 - 72 
 
xlvi LIST OF CASES CITED. 
 
 PACra 
 Hassell v. Hawkins, 4 Drew. 468 - - - 155 
 
 Hatfeild v. Minet, 47 L. J. Ch. 612 ; 8 Ch. D. 136; 38 L. T. 
 
 629 ; 26 W. E. 701 - - 157 
 
 Hatton v. Harris, 62 L. J. P. 0. 24 ; [1892] A. C. 547 ; 67 
 
 L. T. 722 ; 1 B. 1 - 142 
 
 Hawkins v. HaU, 1 Coop. t. Cott. 212 ; 1 Beav. 73 94 
 
 Hawthorne, Ee, Graham v. Massey, 52 L. J. Ch. 750 ; 23 Ch. 
 
 D. 743; 48 L. T. 701 ; 32 W. E. 147 - 1 
 
 Hayes d. Foorde v. Foorde, 2 W. Bl. 698 - 155 
 
 Haygarth v. Wearing 40 L. J. Ch. 577 ; L. E. 12 Eq. 320; 24 
 
 L. T. 825; 20 W. B. 11 - 62 
 
 Haynes v. Foster, 70 L. J. Ch. 302 ; [1901] 1 Ch. 361 ; 84 L. T. 
 
 139 ; 49 W. E. 327 - 53, 55 
 
 Hays, Exp., 3 De G. & Sm. 485; 18 L. J. Ch. 441; 13 Jur. 
 
 762 - - 8 
 
 Hayter, Ee, Wallett, Ee, Hayter v. Wells, 32 W. E. 26 19 
 
 Haywood v. Cope, 25 Beav. 140; 27 L. J. Ch. 468; 4 Jur. 
 
 N. S. 227 ; 6 W. E. 304 - 158, 159 
 
 Head v. Gould, 67 L. J. Ch. 480; [1898] 2 Ch. 250; 78 L. T. 
 
 730; 46 W. E. 497 - 191, 195 
 
 Head's Trustees and Macdonald, Ee, 59 L. J. Ch. 604; 45 
 
 Ch. D. 310; 63 L. T. 21 ; 38 W. E. 657 206 
 
 Heartley v. Nicholson, 44 L. J. Ch. 277 ; L. E. 19 Eq. 233 ; 
 
 31 L. T. 822 ; 23 W. E. 374 79, 170 
 
 Heathcote, In re, Gilbert v. Aviolet, 58 L. T. 43 ; afid. 85 L. T. 
 
 Jo. 120 51 
 
 Heathcote v. Hulme, 1 J. & W. 122 - 185 
 
 Heather, Ee, Pumfrey v. Fryer, 75 L. J. Ch. 568 ; [1906] 2 Ch. 
 
 230 ; 95 L. T. 352 ; 54 W. E. 625 " 153 
 
 Helling v. Lumley, 3 De G. & J. 493 ; 28 L. J. Ch. 249 ; 5 Jur. 
 
 N. S. 301 ; 7 W. E. 152 - 160 
 
 Hemphill v. McKenna, 3 Dru. & War. 183 ; 2 Conn. & L. 76 ; 
 
 6 Ir. Eq. E. 57 16 
 
 Henderson v. Astwood, [1894] A. 0. 150 ; 6 E. 450 69, 119 
 
 Henkle v. Eoyal Exchange Assurance, 1 Ves. sen. 318 106 
 
 Henley v. Stone, 3 Beav. 355 124 
 
 Henniker v. Chafy, 3 W. E. 300 9 
 
 Henty v. Wray, 53 L. J. Ch. 674 ; 21 Ch. D. 332 ; 47 L. T. 
 
 231 ; 30 W. E. 850 148 
 
 Hepworthu. Hepworth, 40 L. J. Ch. Ill; L. E. 11 Eq. 10; 
 
 23 L. T. 388 ; 19 W. E. 46 33 
 
 Hermann v. Hodges, 43 L. J. Ch. 192 ; L. E. 16 Eq. 18 ; 21 
 
 W. E. 571 - 126, 158 
 
 Hewson, Ee, 23 L. J. Ch. 256 - - 54 
 
 Hext v. Gill, 41 L. J. Ch. 761 ; L. E. 7 Ch. 699 ; 27 L. T. 291 ; 
 
 20 W. E. 957 - . 16 
 
LIST OF CASES CITED. xlvii 
 
 PAGE 
 
 Hickman v. Bereiis, 64 L. J. Ch. 785 ; [1895] 2 Ch. 638 ; 73 
 
 L. T. 323 ; 12 E. 602 - - - 46 
 
 Hill, Ee (Viscountess), Hill (Vise.) v. Hill, 71 L. J. Ch. 417 ; 
 
 [1902] 1 Ch. 807; 86 L. T. 336; 50 W. B. 434 - 172 
 
 Hill v. Boyle, L. E. 4 Eq. 260 - 37 
 
 Hill v. Hill, 3 Ves. & B. 183 - 89 
 
 Hill v. Eowlands, 66 L. J. Ch. 689 ; [1897] 2 Ch. 361 ; 77 
 
 L. T. 34 ; 46 W. E. 26 - - - 124 
 
 Hillary, Ee, 2 Dr. & Sin. 461 ; 12 L. T. 840 ; 13 W. E. 959 86 
 
 Hills v. Hills, 8 M. & W. 401 ; 10 L. J. Ch. 440 ; 5 Jur. 
 
 1185- - - - - 81 
 
 Hilton, Ee, Gibbes v. Hale Hilton, 79 L. J. Ch. 7 ; [1909] 2 
 
 Ch. 548; 101 L. T. 229 - 48,196 
 
 Hincksman v. Smith, 3 Euss. 433 - 58 
 
 Hipgrave v. Case, 54 L. J. Ch. 399 ; 28 Ch. D. 356 ; 52 L. T. 
 
 242 - - 160 
 
 Hoare, Ee, Hoare v. Owen, 61 L. J. Ch. 541 ; [1892] 3 Ch. 
 
 94; 67 L. T. 45 ; 41 W. E. 105 - 118 
 
 Hoare v. Dresser, 7 H. L. C. 290; 28 L. J. Ch. 611; 5 Jur. 
 
 N. S. 371 ; 7 W. E. 374 167 
 
 Hobbs v. Wayet, 36 Ch. D. 256 ; 57 L. T. 225 ; 36 W. E. 
 
 73 - - 190 
 
 Hobday v. Peters, 28 Beav. 349 ; 29 L. J. Ch. 780 ; 6 Jur. N. S. 
 
 754; 2L. T. 590; 8 W. E. 512 70 
 
 Hoblyn v. Hoblyn, 41 Ch. D. 200 ; 60 L. T. 499 ; 38 W. E. 12- 66 
 Hockey v. Western, 67 L. J. Ch. 166; [1898] 1 Ch. 350; 78 
 
 L. T. 1 ; 46 W. E. 312 - 187 
 
 Hodges, Ee, 3 K. & J. 213 ; 3 Jur. N. S. 860 - - 86 
 
 Hodgkinson, Ee, Hodgkinson v. Hodgkinson, 64 L. J. Ch. 663; 
 
 [1895] 2 Ch. 190 ; 72 L. T. 617 ; 43 W. E. 594 ; 12 E. 297 193 
 Hodle v. Healey, 1 Ves. & B. 536 ; 6 Madd. 181 122 
 
 Hodson v. Coppard, 30 L. J. Ch. 20 ; 29 Beav. 4 ; 7 Jur. N. S. 
 
 11 ; 9 W. E. 9 93 
 
 Hoghton v. Hoghton, 15 Beav. 278 ; 21 L. J. Ch. 482 ; 17 Jur. 
 
 99 - 66, 104 
 
 Holden v. Hayn, 1 Mer. 47 208 
 
 Holford, Ee, Holford v. Holford, 63 L. J. Ch. 637 ; [1894] 3 
 
 Ch. 30 ; 70 L. T. 777 ; 42 W. E. 463 ; 7 E. 304 91 
 
 Holford v. Yate, 1 K. & J. 677 - 120 
 
 HoUand, Ee, Gregg v. Holland, 71 L. J. Ch. 518 ; [1902] 2 Ch. 
 
 360 ; 86 L. T. 542 ; 50 W. E. 575 - - 37 
 
 Hollingsworth v. Shakeshaft, 14 Beav. 492 ; 21 L. J. Ch. 722 - 202 
 Hollinrake v. Lister, 1 Euss. 500 - 138 
 
 Holman v. Loynes, 4 De G. M. & G. 270; 23 L. J. Ch. 529 ; 
 
 18 Jur. 839; 2 W. E. 205 - 68 
 
xlviii LIST OF CASES CITED. 
 
 PAGE 
 
 Holmes, Re, 55 L. J. Ch. 33 ; 29 Oh. D. 786 - - 40 
 
 Holmes v. Coghill, 7 Ves. 499 ; afrd. 12 Ves. 206 144, 145 
 
 Holmes v. Mathews, 9 Moo. P. 0. 413; 3 Eq. R. 450 - - 123 
 Holmes v. Millage, 62 L. J. Q,. B. 380 ; [1893] 1 Q, B. 551 ; 68 
 
 L. T. 205 ; 41 W. R. 354; 57 J. P. 551 ; 4 R. 332 16 
 Honywood v. Hollywood, 43 L. J. Ch. 652 ; L. R. 18 Eq. 306; 
 
 30 L. T. 671 ; 22 W. R. 749 - - 214 
 Hood-Barrs, Exp., Re Lumley, 65 L. J. Ch. 837 ; [1896] 2 Ch. 
 
 690 ; 75 L. T. 236 ; 45 W. R. 147 96 
 Hood-Barrs v. Heriot, 65 L. J. Q. B. 356 ; [1897] A. C. 174 ; 
 
 74 L. T. 353 ; 44 W. R. 481 ; 60 J. P. 612 - 96 
 Hooley v. Hatton, 1 Bro. C. C. 390, n. - 155 
 Hooper, Exp., 19 Ves. 477; 1 Mer. 7 126 
 Hooper v. Brodrick, 11 Sim. 47 ; 9 L. J. Ch. 321 - 93 
 Hope v. Hope, 61 L. J. Ch. 441 ; [1892] 2 Ch. 336; 66 L. T. 
 
 522 ; 40 W. R. 522 - - 98 
 
 Hope v. Walter, 69 L. J. Ch. 166; [1900] 1 Ch. 257; 82 L. T. 
 
 30 - - 160 
 
 Hopkins v. Hemsworth, 67 L. J. Ch. 526 ; [1898] 2 Ch. 347 39 
 Hopkins v. Hopkins, 1 Atk. 591 - - 176 
 
 Hopkinson v. Roe, 1 Beav. 180 - 183 
 
 Hopkinson v. Rolt, 9 H. L. C. 514 ; 34 L. J. Ch. 468 ; 7 Jur. 
 
 N. S. 1209; 5L. T. 90; 9 W. R. 900 111 
 
 Horlook, Re, Calham v. Smith, 64 L. J. Ch. 325 ; [1895] 1 Ch. 
 
 516; 72 L. T. 223; 43 W. R. 410; 13 R. 356 - -154 
 
 Horlock v. Smith, 1 Coll. 287 - - 124 
 
 Horlock v. Wiggins, 58 L. J. Oh. 46 ; 39 Ch. D. 142 ; 59 L. T. 
 
 710 - - 156 
 
 Home, Re, Wilson v. Cox-Sinclair, 75 L. J. Ch. 25 ; [1905] 1 
 
 Ch. 76 ; 92 L. T. 263 ; 33 W. R. 317 - 195 
 
 Horrocks v. Rigby, 47 L. J. Ch. 800; 9 Ch. D. 180; 38 L. T. 
 
 782; 26 W. R. 714 - 207 
 
 Horsey Estate Co. v. Steiger, 68 L. J. Q. B. 743 ; [1899] 2 
 
 Q. B. 79 ; 80 L. T. 857 ; 47 W. R. 644 140 
 
 Horsnaill, Re, Womersley v. Horsnaill, 78 L. J. Ch. 331 ; 
 
 [1909] 1 Ch. 631 - 48, 51 
 
 Horton o. Smith, 4 K. & J. 624 ; 27 L. J. Oh. 773 ; 6 W. R. 
 
 783 - - - - 104 
 
 Hovenden v. Annesley (Lord), 2 Sch. & L. 607 - 76 
 
 How v. Winterton (Earl), 65 L. J. Ch. 832; [1896] 2 Ch. 626; 
 
 75 L. T. 40; 45 W. B. 103 -204 
 Howard v. Digby (Earl), 2 01. & F. 634; 8 Bli. N. S. 224 98 
 Howard v. Eanshawe, 64 L. J. Ch. 666 ; [1895] 2 Ch. 581 ; 73 
 
 L. T. 77; 43 W. E. 645; 13 R. 663- -139 
 
 Howard v. Harris, 1 Vern. 190 - - 115 
 
LIST OF CASES CITED. xlix 
 
 PAGE 
 
 Howard v. Press Printers, Ltd., 74 L. J. Ch. 100; 91 L. T. 
 
 718 ; 53 W. E. 98 - - 93 
 
 Howe v. Dartmouth (Earl), 7 Ves. 137, 149 31, 196 
 
 Howe, Exp., Ee Late, 72 L. J. K. B. 213; [1903] 1 K. B. 
 
 439 ; 88 L. T. 31 ; 51 W. E. 496 ... 195 
 
 Howe v. Smith, 53 L. J. Oh. 1055 ; 27 Ch. D. 89 ; 50 L. T. 573 ; 
 
 32 W. E. 802 ; 48 J. P. 773 - - 160, 209 
 
 Howell v. George, 1 Madd. 1 ... 161 
 
 Howells v. Jenkins, 1 De G. J. & S. 617 ; 32 L. J. Ch. 788; 
 
 9 L. T. 184 ; 11 W. E. 1050 ; 2N.E. 539 - - 54 
 
 Howes v. Bishop, 78 L. J. K. B. 796 ; [1909] 2 K. B. 390; 100 
 
 L. T. 826 ; 25 T. L. E. 533 - - 66,98 
 
 Hudleston v. Whelpdale, 9 Ha. 775 - 181 
 
 Hudson v. Cook, 41 L. J. Ch. 306 ; L. E. 13 Eq. 417 ; 26 L. T. 
 
 180 ; 20 W. E. 407 - - 49 
 
 Hudson v. Eevett, 5 Bing. 368 ; 7 L. J. (O. S.) C. P. 145 ; 2 
 
 Moo. & P. 663 - 146 
 
 Hudson v. Temple, 29 Beav. 356; 30 L. J. Ch. 251; 7 Jur. 
 
 N. S. 248 ; 3 L. T. 495 ; 9 W. E. 243 . - 209 
 
 Hughes v. Britannia Permanent Benefit Building Society, 75 
 
 L. J. Ch. 739 ; [1906] 2 Ch. 607 - 113, 114 
 
 Hughes v. Graeme, 33 L. J. Q,. B. 335 ; 12 W. E. 857 161 
 
 Hughes v. Howard, 25 Beav. 575 - 181 
 
 Hughes v. Kearney, 1 Soh. & L. 132 - 211 
 
 Hughes v. Morris, 2 De G. M. & G. 349 ; 21 L. J. Ch. 761 ; 
 
 16 Jur. 603 - 5 
 
 Hughes v. Walmesley, 13 Jur. 834, n. - - 40 
 
 Hughes v. Wells, 9 Ha. 749 ; 16 Jur. 927 - 144 
 
 Hughes' Trusts, Ee, 33 L. J. Ch. 531 ; 2 H. & M. 89 - - 40 
 
 Hughes-Hallett v. Indian Mammoth Gold Mines Co., 52 
 
 L. J. Ch. 418 ; 22 Ch. D. 561 ; 48 L. T. 107 ; 31 W. E. 
 
 285 - - 190 
 
 Huguenin v. Baseley, 7 Ves. 273 - - 80 
 
 Huish, Ee, Bradshaw v. Huish, 59 L. J. Ch. 1 35 ; 43 Ch. D. 
 
 260 ; 62 L. T. 52 ; 38 W. E. 199 - - 154 
 
 Hume v. Lopes, 61 L. J. Ch. 423 ; [1892] A. C. 112 ; 66 L. T. 
 
 425 ; 40 W. E. 593 - - - - 196 
 
 Hume v. Pocock, 35 L. J. Ch. 731 ; L. E. 1 Ch. 379 ; 12 Jur. 
 
 N. S. 445 ; 14 L. T. 386 ; 14 W. E. 681 - 62 
 
 Humphreys v. Morten, 74 L. J. Ch. 370 ; [1905] 1 Ch. 739 ; 
 
 92 L. T. 834 ; 53 W. E. 552 - - 139 
 
 Humphrys v. Polak, 70 L. J. K. B. 752 ; [1901] 2 K. B. 385 ; 
 
 85 L. T. 103 ; 49 W. E. 612 - - - - 84 
 
 Hunt, Ee, 2 Conn. & L. 373 - - 85 
 
 Hunt v. Luck, 71 L. J. Ch. 239 ; [1902] 1 Ch. 428 ; 86 L. T. 
 
 68 ; 50 W. E. 291 - - - 132 
 
 K. d 
 
LIST OF OASES CITED. 
 
 Hunt's Settled Estates, Re, Bulteel v. Lawdeshayne. 7+ L. J. 
 
 Ch. 759; [1905] 2 Oh. 418; 93 L. T. 333; 54 W. E. 119; 
 
 affd. 75 L. J. Ch. 496 ; [1906] 2 Ch. 14 197 
 
 Hunter v. Atkins, 3 M. & K. 113 - 65 
 
 Hunter v. Attorney-General, 68 L. J. Ch. 449 ; [1899] A. C. 
 
 309; 80 L. T. 732; 47 W. E. 673 11 
 
 Huntingdon (Earl) v. Huntingdon (Countess), 2 Bro. P. C. 1 - 98 
 Hutchinson and Tenant, Ee, 8 Ch. D. 540 ; 39 L. T. 86 ; 26 
 
 W. E. 904 174 
 
 Hutton v. Mayne, 3 Jo. & Lat. 586 10 
 
 Hyde v. Noate, 15 Sim. 554 ; 11 Jur. 259 - 155 
 
 Hyde v. Warden, 47 L. J. Ex. 121; 3 Ex. D. 72; 37 L. T. 
 
 567 ; 26 W. E. 201 - - 160 
 
 Hyde Park Place Charity, Ee, 80 L. J. Ch. 593; [1911] 1 Ch. 
 
 678; 104 L. T. 701 12 
 
 Tllidge, Ee, Davidson v. Illidge, 53 L. J. Ch. 991 ; 27 Ch. D. 
 
 478 ; 51 L. T. 523 ; 33 W. E. 18 28 
 
 Imperial Gas Light Co. v. Broadbent, 7 H. L. Cas. 600 ; 29 L. J. 
 
 Ch. 377 ; 5 Jur. N. S. 1319 92 
 
 Imperial Gaslight and Coke Co. v. London Gaslight Co., 10 
 
 Ex. 39 ; 23 L. J. Ex. 303 ; 18 Jur. 497 ; 2 C. L. E. 1230 76 
 
 Income Tax Commissioners v. Pemsel, 61 L. J. Q. B. 265; 
 
 [1891] A. C. 531 ; 65 L. T. 621 ; 55 J. P. 805 11 
 
 Ind, Coope & Co., Ee, Fisher v. Ind, Coope & Co., [1911] 80 
 
 L. J. Ch. 661 ; [lull] 2 Ch. 223; 105 L. T. 356 - 118 
 
 Ind, Coope & Co. v. Emmerson, 56 L. J. Ch. 989 ; 12 App. Cas. 
 
 300 ; 56 L. T. 778 ; 36 W. E. 243 16, 128 
 
 Ingham v. Bickerdike, 6 Madd. 275 83 
 
 Ingle v. Vaughan Jenkins, 69 L. J. Ch. 618 ; [1900] 2 Ch. 368 
 
 83 L. T. 155 ; 48 W. E. 684 
 
 Innes, Ee, Innes v. Innes, 79 L. J. Ch. 174; [1910] 1 Ch. 188 
 101 L. T. 633 - - 
 
 104 
 
 79 
 
 Innes v. Sayer, 7 Ha. 377; 18 L. J. Ch. 274; 13 Jur. 402; 
 
 affirmed 3 Mac. & G. 606; 21 L. J. Ch. 190 ; 16 Jur. 21 145 
 
 Ironmongers' Co. v. Attorney -General, 10 CI. & F. 908 12 
 
 Irvine v. Young, 1 Sim. & S. 333 ; 1 L. J. (O. S.) Oh. 108 21 
 
 Jackson, Exp., 14 Ch. D. 725 ; 43 L. T. 272 ; 28 W. E. 523 118 
 Jackson v. Hankey, Jac. 264 - 86 
 
 Jackson v. Innes, 1 Bligh, 104- - 98 
 
 Jackson v. Normandy Brick Co., 68 L. J. Ch. 407 ; [1898] 
 1 Oh. 438 ; 80 L. T. 432 - 75, 92 
 
LIST OF CASES CITED. li 
 
 PAGE 
 
 Jackson v. Eowe, 4 Euss. 514 ; 9 L. J. (O. S.) Ch. 32 - 212 
 
 Jacob v. Down, 69 L. J. Ch. 493; [1900] 2 Oh. 156 ; 83 L. T. 
 
 191 ; 48 W. E. 441 - - 57 
 
 Jacobs v. Eevell, 69 L. J. Ch. 879; [1900] 2 Ch. 858 ; 83 L. T. 
 
 629 ; 49 W. E. 109 - - 160 
 
 James, Exp., 8 Ves. 337 - - - 71 
 
 James v. Kerr, 58 L. J. Ch. 355 ; 40 Ch. D. 449 ; 60 L. T. 212 ; 
 
 37 W. E. 279 ; 53 J. P. 628 - - - - 58 
 
 Jamieson v. Trevelyan, 10 Ex. 269; 23 L. J. Ex. 281 - 152 
 
 Jebb v. Tugwell, 7 De G. M. & G. 663 ; 25 L. J. Ch. 109 ; 2 
 
 Jut. N. S. 51 ; 4 W. E. 157 146 
 
 Jefferies v. Michell, 20 Beav. 15 - 155 
 
 Jeffery, Ee, Arnold v. Burt, 64 L. J. Ch. 830 ; [1895] 2 Oh. 
 
 577 ; 64 L. T. 622 ; 39 W. E. 234 - - 91 
 
 Jefferys v. Jefferys, Cr. & Ph. 138 169 
 
 Jenkins and Randall's Contract, Re, 72 L. J. Ch. 693 ; [1903] 
 
 2 Ch. 362 ; 88 L. T. 628 - - - 198 
 
 Jenning v. Jordan, 51 L. J. Ch. 129 ; 6 App. Cas. 698 ; 45 
 
 L. T. 593; 30 W. E. 369 - - 113 
 
 Jennings v. Selleok, 1 Vern. 467 - 34 
 
 Jerdein v. Bright, 2 J. & H. 325 ; 30 L. J. Ch. 336 ; 4 L. T. 
 
 12; 9W. E. 267 - - 177 
 
 Jerritt v. Weare, 3 Pri. 575 137 
 
 Jervoise v. Northumberland (Duke), 1 J. & W. 559 171 
 
 Jervoise v. Silk, G. Coop. 52 - 8 
 
 Jessopp v. Watson, 1 M. & K. 665 ; 2 L. J. Ch. 197 51 
 
 Jesus College v. Bloome, 3 Atk. 262 - 215 
 
 Job v. Bannister, 2 K. & J. 374; affd. 26 L. J. Ch. 125; 3 Jur. 
 
 N. S. 93; 5 W. E. 177 138 
 
 Jobson v. Palmer, 62 L. J. Ch. 180; [1893] 1 Ch. 71 ; 67 L. T. 
 
 797; 41 W. E. 264; 3 E. 173 - -200 
 
 Jodrell v. Jodrell, 14 Beav. 397 9 
 
 Johnson v. Bragge, 70 L. J. Ch. 41 ; [1901] 1 Ch. 28 ; 83 L. T. 
 
 621 ; 49 W. E. 198 - - 107, 166 
 
 Johnson v. Child, 4 Hare, 87 101 
 
 Johnson v. Curtis, 2 Bro. C. C. 311, n. - - 21 
 
 Johnsons. Newton, 11 Ha. 160; 22 L. J. Ch. 1039; 17 Jur. 
 
 825 - - 209 
 
 Johnson v. Wyatt, 2 De G. J. & S. 18 ; 33 L. J. 394 ; 9 Jur. 
 
 N. S. 1333 ; 9 L. T. 618 ; 12 W. E. 231 ; 3 N. E. 270 92 
 
 Johnstone v. Mappin, 60 L. J. Ch. 241 ; 64 L. T. 48 - 164 
 
 Jones, Ee, Farrington v. Forrester, 62 L. J. Ch. 996; [1893] 
 
 2 Ch. 461 ; 69 L. T. 45 ; 3 E. 498 - - 101 
 
 Jones v. Davies, 7 H. & N. 507; 31 L. J. Ex. 116; 8 Jur. 
 
 N. S. 592 ; 6 L. T. 442 ; 10 W. E. 464 - - 103 
 
 d2 
 
Hi LIST OF CASES CITED. 
 
 PAGE 
 
 Jones v. Evans, 17 L. J. Ch. 469 ; 12 Jur. 664 - 20T 
 
 Jones v. Gibbons, 9 Ves. 407 - - 122 
 
 Jones v. Heavens, 4 Ch. D. 636 ; 25 W. B. 460 137 
 
 Jones v. Hughes, 1 Ha. 383 ; 6 Jur. 316 - - 16- 
 
 Jones v. Jones, a Ha. 440 ; 10 Jur. 516 181 
 
 Jones v. Loch, 35 L. J. Ch. 117; L. E. 1 Ch. 25 ; 11 Jur. 
 
 N. S. 913 ; 13 L. T. 514 ; 14 W. E. 149 79, 170 
 
 Jones v. Mackilwain, 1 Euss. 220 - 90 
 
 Jones v. Selby, Prec. Ch. 304 81 
 
 Jones v. Smith, 1 Hare, 43 ; 11 L. J. Ch. 83; affd. 1 Ph. 244 ; 
 
 12 L. J. Ch. 381 ; 7 Jur. 431 - - 132 
 
 Jorden v. Money, 5 H. L. C. 185 ; 23 L. J. Ch. 865 - - 19 
 
 Kearsley v. Philips, 52 L. J. Q. B. 269 ; 10 Q. B. D. 265 ; 48 
 
 L. T.468; 31 W. E. 467 - - 18 
 
 Kebell v. Philpot, 7 L. J. Ch. 237 ; 2 Jur. 739 - 126 
 
 Keek's Settlement, Ee, 73 L. J. Ch. 262 ; [1904] 2 Ch. 22 ; 90 
 
 L. T. 113; 52 W. E. 362; 20 T. L. E. 156 • 83 
 
 Keech v. Hall, 1 Dougl. 21 ; Shirley Leading Cas. 101 118 
 
 Keech v. Sandford, Sel. Cas. Ch. 61 177 
 
 Keeling v. Brown, o Ves. 359 - 102 
 
 Kekewich v. Manning, 1 De G. M. & G. 176 ; 21 L. J. Ch. 577 ; 
 
 16 Jur. 625 - - 78, 79, 169 
 
 Kelland v. Fulford, 6 Ch. D. 491 ; 28 W. E. 506 49 
 
 Kemp v. Burn, 4 Giff. 348 ; 9 Jur. N. S. 375 ; 7 L. T. 666 ; 11 
 
 W. E. 278 ; 1 N. E. 257 18 
 
 Kemp v. Kemp, 5 Ves. 849 - - 145 
 
 Kempshall v. Holland, 14 E. 336 - 46 
 
 Kempster, Ee, Kempster v. Kempster, 75 L. J. Ch. 286 ; [1906] 
 
 1 Ch. 446 ; 94 L. T. 248 ; 54 W. E. 385 - 26 
 
 Kendall, Exp., 17 Ves. 514 - 100 
 
 Kennard v. Kennard, 42 L. J. Ch. 280 ; L. E. 8 Ch. 227 ; 28 
 
 L. T. 83 ; 21 W. E. 206 78 
 
 Kennedys. Green, 3M. & K. 699 - 131, 211, 212 
 
 Kenworthy v. Bate, 6 Ves. 793 146 
 
 Kerrick v. Saffery, 7 Sim. 317 ; 4 L. J. Ch. 162 - - 118 
 
 Kershaw, Ee, Drake v. Kershaw, 57 L. J. Ch. 599 ; 37 Ch. D. 
 
 674 ; 58 L. T. 512 ; 36 W. E. 413 - 26 
 
 Kershaw, Ee, Whittaker v. Kershaw, 60 L. J. Ch. 9 ; 45 Ch. D. 
 
 321 ; 63 L. T. 203 ; 39 W. E. 23 - - - 190 
 
 Kettlewell v. Watson, 51 L. J. Ch. 2S1 ; 21 Ch. D. 685; on 
 
 appeal, 53 L. J. Ch. 717 ; 26 Ch. D. 501 ; 51 L. T. 135 ; 32 
 
 W. E. 865 - - 132, 211 
 
LIST OF OASES CITED. liii 
 
 PAOE 
 
 Keys v. Williams, 3 Y. & 0. Ex. 55 ; 7 L. J. Ex. Eq. 59 ; 2 
 
 Jur. 611 - - 126 
 
 Keys v. Williams, 3 T. & 0. Ex. 462 ; 3 Jur. 950 39 
 
 Kilpin. v. Kilpin, 1 M. & K. 520 153 
 
 Kilpin v. Eatley, [1892] 1 Q. B. 582 ; 66 L. T. 797 ; 40 W. E. 
 
 479 ; 56 J. P. 565 - - 77 
 
 Kimber v. Barber, L. E. 8 Ch. 56 ; 27 L. T. 526 ; 21 W. E. 65 - 70 
 King v. Gillard, 74 L. J. Ch. 421 ; [1905] 2 Ch. 7 ; 92 L. T. 
 
 605 ; 53 W. E. 598 ; 21 T. L. E. 398 75 
 
 King v. King, 1 M. & K. 442 61 
 
 Kinnaird v. Trollope, 57 L. J. Ch. 905 ; 39 Ch. D. 636 ; 60 
 
 L. T. 892 - - - 116 
 
 Kinnaird v. Trollope, 58 L. J. Ch. 556 ; 42 Ch. D. 610 ; 59 L. T. 
 
 433; 37 W. E. 234 - - 120 
 
 Kircudbright (Lord) v . Kircudbright (Lady), 8 Ves. 51 157 
 
 Kirk v. Eddowes, 3 Ha. 509 ; 13 L. J. Ch. 402 ; 8 Jur. 1024 - 156 
 Kirkwood v. Thompson, 2 De O. J. & S. 613 ; 34 L. J. Ch. 501 ; 
 
 12 L. T. Ill ; 13 W. E. 1052 - 17, 122 
 
 Kirwan's Trusts, Ee, 52 L. J. Ch. 952 ; 25 Ch. D. 373 ; 49 
 
 L. T. 292 - - 144, 149 
 
 Kitts v. Moore, 64 L. J. Q. B. 152; [1895] 1 Q. B. 253; 71 
 
 L. T. 676; 43 W. E. 84; 12 E. 43 - 91 
 
 Knebell v. White, 2 Y. & C. Ex. 15 ; 5 L. J. Ex. Eq. 98 19 
 
 Knight v. Marjoribanks, 2 Mac. & G. 10 ; 2 H. & Tw. 308 71 
 
 Knight's Trusts, Ee, 27 Beav. 45 ; 28 L. J. Ch. 625 ; 5 Jur. 
 
 N. S. 326 - 177 
 
 Knox v. Gye, 42 L. J. Ch. 234; L. E. 5 H. L. 656; 16 L. T. 
 
 76; 15 W. E. 628 - 76 
 
 Knox v. Mackinnon, 13 App. Cas. 753 198 
 
 Lacey, Exp., 6 Ves. 625 73, 179 
 
 Lacey, Ee, Howard v. Lightfoot, 76 L. J. Ch. 316 ; [1907] 
 
 I Ch. 330 ; 96 L. T. 306 - - 26 
 Lacey v. Hill, Crowley's Claim, 43 L. J. Ch. 551 ; L. E. 18 Eq. 
 
 182; 30 L. T. 484; 22 W. E. 586 - 190 
 
 Lacey v. Ingle, 2 Phill. 413 - 110 
 
 Lacon, Ee, Lacon v. Lacon, 60 L. J. Ch. 403 ; [1891] 2 Ch. 
 
 482 ; 64 L. T. 429 ; 39 W. E. 514 153, 157 
 
 Lacon v. Allen, 3 Drew. 579 ; 26 L. J. Ch. 18 ; 4 W. E. 
 
 693 - 126 
 
 Lacons v. WorinaU, 76 L. J. K. B. 914 ; [1907] 2 K. B. 350 ; 
 
 97 L. T. 379; 23 T. L. E. 495 - - - -205 
 
 Laird v. Pirn, 7 M. & W. 474 ; 10 L. J. Ex. 259 ; Harr. & W. 
 
 II - - - 158 
 
liv LIST OF CASES CITED. 
 
 PAGE 
 
 Lake v. Gibson, 1 Eq. Cas. Ab. 390 - - 174 
 
 Lamare v. Dixon, 43 L. J. Ch. 203 ; L. B. 6 H. L. 414 ; 22 
 
 W. E. 49 - - 159 
 
 Lamb v. Lamb, 5 "W. E. 772 - 54 
 
 Lambe v. Eames, 40 L. J. Oh. 447 ; L. E. 6 Ch. 599 ; 25 L. T. 
 
 175 ; 19 W. E. 659 - 173. 
 
 Lambe v. Orton, 1 Dr. & Sm. 125 ; 29 L. J. Ch. 319; 1 L. T. 
 
 394 ; 8 W. E. 2(12 37 
 
 Lambert, Ee, Stanton v. Lambert, 57 L. J. Ch. 927 ; 39 Ch. D. 
 
 626 ; 59 L. T. 429 - 9a 
 
 Lands Allotment Co., Ee, 03 L. J. Ch. 291 ; [1894] 1 Ch. 616 ; 
 
 70 L. T. 286 ; 42 W. E. 404 ; 7 E. 115 - 205- 
 
 Lane, Ee, Luard v. Lane, 49 L. J. Ch. 708; 14 Ch. D. 856; 
 
 43 L. T. 87 ; 28 W. E. 764 23- 
 
 Langford v. Gascoyne, 11 Ves. 333 193 
 
 Langham v. G. Northern Ey., 1 De G. & Sm. 486; 16 L. J. 
 
 Ch. 437; 11 Jur. 839 - 95 
 
 Langston, Exp., 17 Ves. 227 126 
 
 Langton v. Braokenbury, 2 Coll. 446 ; 15 L. J. Ch. 256 ; 10 
 
 Jur. 302 - - - 9 
 
 Langton v. Horton, 5 Beav. 9 ; 11 L. J. Ch. 233 ; 6 Jur. 357, 
 
 594 - - 123 
 
 Lamer v. Lamer, 74 L. J. K. B. 797 ; [1905] 2 K. B. 539 ; 93 
 
 L. T. 537 ; 54 W. E. 62 ; 21 T. L. E. 637 9a 
 
 Latter v. Dashwood, 6 Sim. 462 ; 3 L. J. Ch. 149 - 124 
 
 Law, Ee, 30 L. J. Ch. 512 ; 7 Jur. N. S. 410 - 8 
 
 Law v. Law, 74 L. J. Ch. 169; [1905] 1 Ch. 140; 92 L. T. 1 ; 
 
 53 W. E. 227 ; 21 T. L. E. 102 46 
 
 Lawes v. Lawes, 20 Ch. D. 81 ; 45 L. T. 453 ; 30 "W. E. 3 - 153 
 Lawrance v. Norreys (Lord), 59 L. J. Ch. 681 ; 15 App. Cas. 
 
 210; 62 L. T. 706; 38 W. E. 753; 54 J. P. 708 77 
 
 Lawton v. Campion, 18 Beav. 87 ; 23 L. J. Ch. 505 ; 18 Jur. 
 
 88 ; 2 W. E. 209 45, 46 
 
 Leach v. Leach, 13 Sim. 304 ; 7 Jur. 273 9 
 
 Learoydv. Whiteley, 57 L. J. Ch. 390; 12 App. Cas. 727; 58 
 
 L. T. 93 ; 36 W. E. 721 202 
 
 Lechmere v. Brazier, 2 Jac. & W. 287 - 206 
 
 Lechmere v. Carlisle (Earl), o P. Wms. 211 ; affd. sub nom. 
 
 Lechmere v. Lechmere, Cas. t. Talbot, 80 151 
 
 Lecouturier v. Eey, 79 L. J. Oh. 394 ; [1910] A. 0. 262 ; 102 
 
 L. T. 293 ; 26 T. L. E. 368 - 75 
 
 Lee v. Head, 1 K. & J. 620 ; 1 Jur. N. S. 722 ; 3 W. E. 591 - 14fr 
 Lee v. Pain, 4 Ha. 201 ; 14 L. J. Ch. 346 - 155, 156 
 
 Leedham v. Chawner, 4 K. & J. 458 - 192 
 
 Leeds (Duke) v. Amherst (Earl), 20 Beav. 239 22. 
 
LIST OF CASES CITED. 1 T 
 
 PAGE 
 
 Leeds (Duke) v. Amherst (Lord), 2 Ph. 117 ; 16 L. J. Oh. 5 ; 
 
 10 Jur. 956 - - 215 
 
 Leeds (Duke) v. Strafford (Earl), 4 Ves. 180 - 43 
 
 Leigh, Ee, Leigh v. Leigh, 58 L. J. Ch. 306 ; 40 Ch. D. 290 ; 
 
 60 L. T. 404 ; 37 "W. E. 241 87 
 
 Le Neve v. Le Neve, Amhl. 436 128 
 
 Leroux. v. Brown, 12 O. B. 801 ; 22 L. J. C. P. 1 ; 16 Jur. 1021; 
 
 1 W. E. 22 - - - - - 175 
 
 Leslie v. Baillie, 2 Y. & C. Ch. 91 ; 12 L. J. Ch. 153; 7 Jur. 
 
 77 - - 40 
 
 Leslie v. Leslie, LI. & G. t. Sugd. 1 89 
 
 Leslie v. Tompson, 9 Ha. 268 ; 20 L. J. Ch. 561 ; 15 Jur. 717 - 207 
 Lester v, Foxcroft, Colles P. C. 108 - 164 
 
 Lethem v. Hall, 7 Sim. 141 86 
 
 Letts v. Hutchins, L. E. 13 Eq. 176 123 
 
 Lever v. Goodwin, 36 Oh. D. 1 ; 57 L. T. 583 ; 36 W. E. 177 - 75 
 Levy v. Stogdon, 68 L. J. Ch. 19; [1899] 1 Ch. 5 ; 79 L. T. 
 
 364 - - 209 
 
 Lewin v. Guest, 1 Euss. 325 160 
 
 Lewis, In re, Foxwell v. Lewis, 55 L. J. Ch. 232 ; 30 Ch. D. 
 
 654 ; 53 L. T. 387 ; 34 W. E. 150 51 
 
 Lewis, Ee, Lewis v. Lewis, 73 L. J. Ch. 748 ; [1904] 2 Ch. 
 
 656; 91 L. T. 242 ; 53 W. E. 393 - 138 
 
 Lewis, Ee, Lewis v. Lewis, 103 L. T. 495 72, 184 
 
 Lewis v. Hillman, 3 H. L. C. 607 178, 179 
 
 Lewis v. Nobbs, 47 L. J. Ch. 662 ; 8 Ch. D. 591 ; 26 W. E. 
 
 631 - 194 
 
 Lidiard and Jackson and Broadley's Contract, Ee, 58 L. J. Ch. 
 
 785 ; 42 Ch. D. 254 ; 61 L. T. 322 ; 37 W. E. 793 207 
 
 Life Interest and Eeversionary Securities Corp. v. Hand-in- 
 
 Hand Fire and Life Insurance, 67 L. J. Ch. 548; [1898] 
 
 2 Ch. 230 ; 78 L. T. 708 ; 46 "W. E. 668 - 133 
 
 Liles v. Terry, 66 L. J. Q. B. 34 ; [1895] 2 Q. B. 679 ; 73 L. T. 
 
 428; 44 W. E. 116 - • - 67, 68 
 
 Lilf ord (Lord) v. Attorney-General, 36 L. J. Ex. 116; L. E. 
 
 2 H. L. 63 ; 16 L. T. 184 ; 15 W. E. 595 - 121 
 
 Lindsay Petroleum Co. v. Hurd, L. E. 5 P. C. 221 ; 22 W. E. 
 
 492 - - - - - 61 
 
 Line v. Hall, 43 L. J. Ch. 107 ; 29 L. T. 568 ; 22 W. E. 124 - 146 
 Lingen v. Simpson, 1 Sim. & S. 600 43 
 
 Linley v. Taylor, 1 Gift. 67 ; 28 L. J. Ch. 686 ; 7 W. E. 639 55 
 Linsley, Ee, Cattley v. West, 73 L. J. Ch. 841 ; [1904] 2 Ch. 
 
 785; 53 W. E. 172 - - 19, 195 
 
 Liquidation Estates Purchase Co. v. Willoughby, 67 L. J. Ch. 
 
 251 ; [1898] A. C. 321 ; 78 L. T. 329 ; 46 W. E. 589 
 
 104, 105 
 
lvi LIST OF CASES CITED. 
 
 PAGE 
 
 Lister v. Bradley, 1 Hare, 10 ; 11 L. J. Ch. 49 89 
 
 Litchfield v. Eeady, 5 Ex. 939 ; 20 L. J. Ex. 51 - 118 
 
 Little, Ee, 56 L. J. Ch. 872 ; 36 Ch. D. 701 ; 57 L. T. 583 - 96 
 Little v. Spreadbury, 79 L. J. K. B. 1119 ; [1910] 2 K. B. 658 ; 
 
 102 L. T. 829 ; 26 T. L. E. 552 - - 46 
 
 Lloyd, Ee, 3 Man. & G. 547 ; 4 Scott, N. E. 200 ; 5 Jur. 1198 84 
 Lloyd, Ee, Lloyd v. Lloyd, 72 L. J. Ch. 78 ; [1903] 1 Ch. 385 - 125 
 Lloyd ». Atwood, 3DeG.& J. 614 ; 29 L. J. Ch. 97 ; 5 Jur. 
 
 N. S. 1322 - - - 126 
 
 Lloyd *. Banks, 57 L. J. Ch. 881 ; L. E. 3 Ch. 988 ; 16 W. E. 
 
 988 - - - 41 
 
 Lloyd v. Lander, 5 Madd. 282 - 118 
 
 Lloyds Bank v. Bullock, 65 L. J. Ch. 680 ; [1896] 2 Ch. 192 ; 
 
 74 L. T. 6»7 ; 44 W. E. 633 - - 212 
 
 Lloyds Bank v. Pearson, 70 L. J. Ch. 422 ; [1901] 1 Ch. 865 ; 
 
 84 L. T. 314- - - - 40 
 
 Lock v. Pearce, 62 L. J. Ch. 582; [1893] 2 Ch. 271 ; 68 L. T. 
 
 569; 41 W. E. 369 ; L. E. 403 - - 140 
 
 Lockhardt v. Hardy, 9 Beav. 349 ; 15 L. J. Ch. 347 ; 10 Jur. 
 
 532 - 11(5 
 
 Locking v. Parker, 42 L. J. Ch. 257 ; L. E. 8 Ch. 30 117 
 
 Lodge v. National Union Investment Co., 76 L. J. Ch. 187; 
 
 [1907] 1 Ch. 300 ; 96 L. T. 301 ; 23 T. L. E. 187 125 
 
 Logan v. Wienholt, 1 CI. & P. 611 137 
 
 London and County Bank v. Goddard, 66 L. J. Ch. 261 ; [1897] 
 
 1 Ch. 642 ; 76 L. T. 277 ; 45 W. E. 310 - 110 
 
 London and County Bank v. Lewis, 21 Ch. D. 490 ; 47 L. T. 
 
 501 ; 31 W. E. 233 - - - 15, 126 
 
 London and Midland Bank v. Mitchell, 68 L. J. Ch. 568; 
 
 [1899] 2 Ch. 161 ; 81 L. T. 263 ; 47 W. E. 602 76 
 
 L. & S. W. Ey. Co. v. Gomm, 51 L. J. Ch. 630 ; 20 Ch. D. 562 - 123 
 London United Breweries, Ltd., Ee, Smith v. London United 
 
 Breweries, Ltd., 76 L. J. Ch. 612 ; [1907] 2 Ch. 511 ; 97 
 
 L. T. 541 - - 14 
 
 Longman v. Bath Electric Tramways, 74 L. J. Ch. 424 ; [1905] 
 
 1 Ch. 646; 92 L. T. 743; 53 W. E. 480 - 61 
 
 Longmate v. Ledger, 2 Giffi. 157 ; 6 Jur. 481 ; 8 W. E. 386 - 60 
 Loosemore v. Knapman, Kay, 123 ; 32 L. J. Ch. 1004 ; 2 W. E. 
 
 664 - - - 115 
 
 Lovesy v. Smith, 40 L.J. Ch. 809; 15 Ch. D. 655; 43 L. T. 
 
 240; 28 W. E. 979 - - 107 
 
 Low v. Bouverie, 60 L. J. Ch. 594; [1891] 3 Ch. 82; 65 L. T. 
 
 533 ; 40 W. E. 50 - - 42, 64 
 
 Lowe v. Morgan, 1 Bro. C. O. 368 117 
 
 Lowndes v. Bettle, 33 L. J. Ch. 451 ; 10 Jur. N. S. 226 ; 10 
 
 L. T. 55; 12 W. E. 399; 4 N. E. 609- 16 
 
LIST OF OASES CITED. lvii 
 
 PAGE 
 
 Lowther v. Heaver, 58 L. J. Ch. 482 ; 41 Ch. D. 248 ; 60 L. T. 
 
 310; 37 W. B. 465 - - 159 
 
 Loyd v. Spillet, 3 P. Wms. 344 ; rehearing 2 Atk. 148 - 138 
 
 Luddy's Trustee v. Peard, 55 L. J. Oh. 884 ; 33 Oh. D. 500 ; 
 
 55 L. T. 137 ; 35 W. E. 44 - 70, 179 
 
 Lumley v. Wagner, 1 De G. M. & G. 604 ; 21 L. J. Ch. 898 ; 
 
 16 Jur. 871 - 168 
 
 Lunham v. Blundell, 27 L. J. Oh. 179 ; 4 Jur. N. S. 3 ; 6 
 
 W. E. 49 - 201 
 
 Lupton v. White, 15 Yes. 432 - 22 
 
 Lyddon v. Moss, 4 De G. & J. 104; 5 Jur. N. S. 637; 7 W. E. 
 
 433 - 68 
 
 Lyell v. Kennedy, 52 L. J. Ch. 385 ; 8 App. Cas. 217 ; 48 L. T. 
 
 585; 31 W. E. 618 16 
 
 Lyle v, Eichards, 35 L. J. Q. B. 214; L. E. 1 H. L. 222; 12 
 
 Jur. N. S. 947 ; 15 L. T. 1 105 
 
 Lynn v. Chaters, 2 Keen, 521 162 
 
 Lyons v. Blenkin, Jac. 245 - 85 
 
 Lysaght v. Edwards, 45 L. J. Ch. 554 ; 2 Ch. D. 499 ; 34 L. T. 
 
 787 ; 24 W. E. 778 - 210 
 
 Macdonald v. Irvine, 47 L. J. Ch. 494 ; 8 Ch. D. 101 ; 38 
 
 L. T. 155 ; 26 W. E. 381 - 23, 30 
 
 Macdonald v. Longbottom, 1 EU. & Ell. 977 ; 29 L. J. Q. B. 
 
 256 ; 6 Jur. N. S. 724 ; 2 L. T. 606 ; 8 W. E. 614 - 105 
 
 Macdonnell v. Harding, 7 Sim. 178; 4 L. J. Ch. 10 - - 200 
 
 McDonnell v. Heselrige, 16 Beav. 346; 22 L. J. Ch. 342; 16 
 
 Jur. 1118; 1 W. E. 71 - - 169 
 
 M'Donnell v. M'Donnell, 4 Dr. & War. 376 - - 55 
 
 Macduff, Ee, Macduff v. Macduff, 65 L. J. Ch. 700 ; [1896] 2 
 
 Ch. 451 ; 74 L. T. 706 ; 45 W. E. 154 - 11 
 
 McFadden v. Jenkyns, 1 Ph. 153 ; 12 L. J. Ch. 146 ; 7 Jur. 
 
 27 - 169 
 
 McGachen v. Dew, 15 Beav. 84 - - 203 
 
 McGrath, Ee, 62 L. J. Ch. 208 ; [1893] 1 Ch. 143 ; 67 L. T. 
 
 636; 41 W. E. 97 - 84 
 
 McGruther v. Pitcher, 73 L. J. Ch. 653 ; [1904] 2 Ch. 306 ; 
 
 91 L. T. 678 ; 53 W. E. 138 ; 20 T. L. E. 652 - 212 
 
 Mackay, Ee, Griessemann v. Carr, 80 L. J. Ch. 237 ; [1911] 1 
 
 Ch. 300 ; 103 L. T. 755 - 204 
 
 Mackenzie, Ee, Mackenzie v. Edwards-Moss, 80 L. J. Ch. 443 ; 
 
 [1911] 1 Ch. 578; 105 L. T. 154 ; 27 T. L. E. 337 - 97 
 
 Mackenzie v. Coulson, L. E. 8 Eq. 368 166 
 
 Mackreth v. Symmons, 15 Yes. 329 113 
 
lviii LIST OF CASES CITED. 
 
 PAOZ 
 
 McNeillie v. Acton, 4 De G. M. & G. 744 ; 23 L. J. Ch. 11 ; 17 
 
 Jur. 1041 ; 2 Eq. E. 21 - - - 189 
 
 Macpherson v. Macpherson, 16 Jur. 847 ; 1 Macq. H. L. 243 - 199 
 McQueen v. Farquhar, 11 Ves. 467 - 69, 129 
 
 Maddever, Ee, Three Towns Banking Co. v. Maddever, 53 L. J. 
 
 Ch. 998 ; 27 Ch. D. 523 ; 52 L. T. 35 ; 33 W. E. 286 - 76 
 
 Maddison v. Alderson, 52 L. J. Q,. B. 737 ; 8 App. Cas. 473 ; 
 
 49 L. T. 303; 31 W. E. 820 - 79, 164 
 
 Maddy v. Hale, 45 L. J. Ch. 791 ; 3 Ch. D. 325 ; 35 L. T. 134 ; 
 
 24 W. E. 1005 - 181 
 
 Mainland v. Upjohn, 58 L. J. Ch. 361 ; 41 Ch. D. 126 ; 60 
 
 L. T. 614 ; 37 W. E. 411 - 115, 122 
 
 Maitland v. Bateman, 13 L. J. Ch. 273 - 203 
 
 Malim v. Keighley, 2 Ves. jun. 333, 529 144 
 
 Mallet v. Halfpenny, cited Preo. Ch. 404 163 
 
 Mallott v. Wilson, 72 L. J. Ch. 664 ; [1903] 2 Ch. 494 170 
 
 Manners v. Pearson and Son, 67 L. J. Ch. 304 ; [1898] 1 Ch. 
 
 581 ; 78 L. T. 432 ; 46 W. E. 498 " 19 
 
 Manning v. Thesiger, 2 M. & K. 29 ; 4 L. J. Ch. 2S5 - 155 
 
 Mansel, Ee, Ehodes v. Jenkin, 54 L. J. Ch. 883 ; 45 L. T. 741 ; 
 
 30 W. E. 133 - 192 
 
 Mansfield (Earl) v. Ogle, 7 De G. M. & G. 181 ; 24 L. J. Ch. 
 
 450 ; 1 Jur. N. S. 603 ; 3 W. E. 557 ; 3 Eq. E. 907 - - 125 
 
 Mara v. Browne, 64 L. J. Ch. 594 ; [1895] 2 Ch. 69 ; 72 L. T. 
 
 765 ; on appeal, 65 L. J. Ch. 225 ; [1896] 1 Ch. 199 ; 73 
 
 L. T. 638 - - 192 
 
 Marker v. Marker, 9 Ha. 1 ; 20 L. J. Ch. 246 ; 15 Jur. 663 214 
 Marlborough, Ee (Duke), Davis v. "Whitehead, 63 L. J. Ch. 
 
 471; [1894] 2 Ch. 133; 70 L. T. 314; 42 W. E. 456; 8 E. 
 
 242 - - - 175 
 
 Marsden's Trusts, Ee, 4 Drew. 594 ; 28 L. J. Ch. 906 ; 5 Jur. 
 
 N. S. 590; 7 W. E. 520 173 
 
 Marsh v. Lee, 2 Vent. 337 114, 129 
 
 Marsh v. Milligan, 3 Jur. N. S. 979 162 
 
 Marshall v. Berridge, 51 L. J. Ch. 329 ; 10 Ch. D. 233 ; 45 
 
 L. T. 599 ; 30 W. E. 93 ; 46 J. P. 279 - 165 
 
 Marshall v. Cave, 3 L. J. (O. S.) Ch. 57 119, 124 
 
 Marshall v. Holloway, 2 Swanst. 432 184 
 
 Marshall and Salt's Contract, In re, 69 L. J. Ch. 542; [1900] 
 
 2 Ch. 202 ; 83 L. T. 147 ; 48 W. E. 508 160 
 
 Martin v. L. C. & D. Ey., 35 L. J. Oh, 795 ; L. E. 1 Ch. 501 ; 
 
 12 Jur. N. S. 775 ; 14 L. T. 814 ; 14 W. E. S80 - - 64 
 
 Martin v. Pycroft, 2 Do G. M. & G. 785 ; 22 L. J. Ch. 94 ; 16 
 
 Jur. 1125; 1 W. E. 27 - 160 
 
 Martindalo, Ee, 64 L. J. Ch. 9; [1894] 3 Ch. 193; 71 L. T. 
 
 468 ; 43 W. E. 53 ; 8 E. 729 ■ 85 
 
57, 
 
 140 
 
 J. Q. B. 215; 1 P. 
 
 211 
 
 
 80 
 
 17 Bq. 15; 29L.T. 
 
 129 
 
 1 137, 
 
 13S 
 
 LIST OF CASES CITED. lix 
 
 PAOE 
 
 Martinson v. Clowes, 51 L. J. Oh. 594; 21 Cli. D. 857; 46 
 
 L. T. 882 ; 30 W. B. 795 69 
 
 Masonic Life Assurance v. Sharpe, 61 L. J. Ch. 193 ; [1892] 
 
 1 Ch. 154; 65 L. T. 806; 40 W. R. 241 - 76 
 
 Massam v. Thorley's Cattle Food Co., 14 Ch. D. 748 ; 41 L. T. 
 
 543; 42 L. T. 851 ; 28 W. E. 966 93 
 
 Mathews v. Keble, 37 L. J. Ch. 537 ; L. E. 3 Ch. 691 ; 16 
 
 W. E. 1213 142 
 
 Matson v. Swift, 5 Jur. 645 - 123 
 
 Matthews v. Goodday, 31 L. J. Ch. 282 ; 8 Jur. N. S. 90 ; 
 
 5 L. T. 572 ; 10 W. E. 148 - 126 
 Matthews v. Smallwood, 79 L. J. Ch. 322 ; [1910] 1 Ch. 777 ; 
 
 102 L. T. 228 
 Mattock v. Kinglake, 10 A. & E. 50 ; 8 L. 
 
 6 D. 46 ; 1 W. W. & H. 667 
 Maunsell v. Hedges, 4 H. L. C. 1039 
 Maxfield v. Burton, 43 L. J. Ch. 46 ; L. E. 17 Bq. 15 ; 
 
 571; 22 W. E. 148 
 Maxwell v. Ward, M'Cl. 458 ; 13 Price, 674 
 May v. May, 33 Beav. 81 154 
 
 Mayw. Piatt, 69 L. J. Ch. 357; [1900] 1 Ch. 616; 83 L. T. 
 
 123; 48 W. E. 617 - - 166 
 
 Mayer v. Murray, 47 L. J. Ch. 605 ; 8 Ch. D. 424 ; 26 W. E. 
 
 690 - 124 
 
 Maynwaring v. Maynwaring, 3 Atk. 414 197 
 
 Medland, Ee, Eland v. Medland, 58 L. J. Ch. 572 ; 41 Ch. D. 
 
 476; 60 L. T. 781 ; 37 W. E. 753 - 198 
 
 Meek v. Devenish, 4 Ch. D. 566 ; 36 L. T. 911 ; 25 W. E. 688 - 51 
 Melling v. Leak, 16 C. B. 652 ; 24 L. J. C. P. 187 ; 1 Jur. 
 
 N. S. 759 ; 3 "W. E. 595 - 176 
 
 MeUor v. Porter, 53 L. J. Ch. 178 ; 25 Ch. D. 158 ; 50 L. T. 
 
 49; 32 W. E. 271 - 9 
 
 Mendes v. Guedalla, 2 J. & H. 259 ; 31 L. J. Ch. 561 ; 8 Jur. 
 
 N. S. 878 ; 6 L. T. 746; 10 W. E. 482 - 195 
 
 Menier v. Hooper's Telegraph "Works, 43 L. J. Ch. 330 ; L. E. 
 
 9 Ch. 350 ; 30 L. T. 209 ; 22 W. E. 396 13, 165 
 Merchant Taylors' Co. v. Att.-Gen., 40 L. J. Ch. 545; L. E. 
 
 6Ch. 512; 25 L. T. 109; 19 W. E. 641 12 
 
 Mercier v. Mercier, 72 L. J. Ch. 511; [1903] 2 Ch. 98; 88 
 
 L.T. 516; 51 W. E. 611 - 34, 183 
 
 Mestaer v. Gillespie, 11 Ves. 626 5 
 
 Metcalfe, Ee, Hicks v. May, 49 L. J. Ch. 192 ; 13 Ch. D. 236 ; 
 
 42 L. T. 383 ; 28 W. E. 499 - 106 
 
 Metcalfe's Trusts, Ee, 2 De G. J. & S. 122 ; 33 L. J. Ch. 308 ; 
 
 10 Jur. N. S. 224 ; 10 L. T. 78 ; 12 W. E. 538 - - 68 
 
Ix LIST OF CASES CITED. 
 
 PAGE 
 
 Methold v. Turner, 4 De G. & 8. 249 ; 20 L. J. Ch. 201 ; 15 
 Jur. 810 - - 8 
 
 Metropolitan Electric Supply Co. v. Ginder, VI L. J. Ch. 862 ; 
 [1901] 2 Ch. 799; 84 L. T. 818; 49 W. E. 508; 65 J. P. 
 519 - - 162 
 
 Meux v. Bell, 1 Hare, 73; 11 L. J. Ch. 77; 6 Jur. 123 41 
 
 Miall v. Brain, 4 Madd. 119 55 
 Micklethwait v. Micklethwait, 1 De G. & J. 504 ; 26 L. J. Ch. 
 
 721 ; 3 Jur. N. S. 1279 ; 5W.E. 861 214 
 
 Middleton v. Middleton, 1 J. & W. 94 - 64 
 
 Middleton v. Sherburne, 4 T. & C. Ex. 348 67 
 Mildmay v. Quicke, 46 L. J. Ch. 667 ; 6 Ch. D. 553 ; 25 W. B. 
 
 788 - - 135 
 
 Miles v. Langley, 1 Euss. & M. 39; affd. 2 Euss. & M. 626 132 
 Miles v. New Zealand Alford Estate Co., 55 L. J. Ch. 801 ; 32 
 
 Ch. D. 226; 54 L. T. 582; 34 W. E. 669 45 
 
 Mill v. Hill, 3 H. L. C. 828 181 
 
 Millar v. Craig, 6 Beav. 433 - 21 
 
 Miller v. Harris, 14 Sim. 540; 9 Jur. 388 83 
 Miller v. Sharp, 68 L. J. Ch. 322; [1899] 1 Ch. 622; 80 L. T. 
 
 77 ; 47 W. E. 268 ~ " 164 
 Millett v. Davey, 31 Beav. 470; 32 L. J. Ch. 122 ; 9 Jur. N. S. 
 
 392; 7 L. T. 551; 11 W. E. 176 119 
 
 Millington v. Fox, 3 M. & Cr. 338 75 
 
 Mills v. Haywood, 6 Ch. D. 196 164 
 Milroy v. Lord, 4 De G. F. & J. 264 ; 31 L. J. Ch. 798 ; 8 
 
 Jur. N. S. 806 ; 7 L. T. 178 - 170 
 Minors v. Battison, 46 L. J. Ch. 2 ; 1 App. Cas. 428 ; 35 L. T. 
 
 1 ; 25 "W. E. 27 - 48 
 Mirehouse v. Scaife, 2 M. & Cr. 695 ; 7 L. J. Ch. 22 ; 1 Jur. 
 
 134 102 
 Mitchell v. Homfray, 50 L. J. Q. B. 460 ; 8 Q. B. D. 587 ; 45 
 
 L. T. 694; 29 W. E. 558 68 
 
 Mole v. Mole, 1 Dick. 310 89 
 
 Moloney v. Kennedy, 10 Sim. 254 ; 3 Jur. 793 98 
 
 Molony v. Kernan, 2 Dr. & War. 31 . 129 
 Molyneux v. Hawtrey, 72 L. J. K. B. 873 ; [1903] 2 K. B. 
 
 487; 89 L. T. 350 ; 52 W. E. 23 133 
 
 Monk v. Druce, 4 L. J. Ex. Eq. 61 191 
 
 Montacute (Viscountess) v. Maxwell, 1 P. Wms. 616 - 5 
 Montagu, Be, Faber v. Montagu, 65 L. J. Ch. 372 ; [1896] 1 
 
 Ch. 549 ; 74 L. T. 346 ; 44 W. E. 5S3 - 10, 54 
 
 Montesquieu v. Sandys, 18 Ves. 302 - 68, 70 
 
 Montford (Lord) v. Cadogan (Lord), 17 Ves. 485; 19 Ves. 
 
 635 - - 180 
 
LIST OF OASES 01TED. lxi 
 
 PAGE 
 
 Moodie v. Eeid, 1 Madd. 516 - - 144 
 
 Moody, Ee, Woodroffe v. Moody, 64 L. J. Ch. 174 ; [1895] 
 
 1 Ch. 101 ; 72 L. T. 190 ; 43 W. E. 462 ; 13 E. 13 - - 89- 
 
 Moore, In the Goods of, 57 L. J. P. 37 ; 13 P. D. 36 ; 58 L. T. 
 
 386 ; 36 W. E. 576 ; 52. J. P. 200 - 15. 
 
 Moore v. Darton, 4 De G. & Sm. 517 ; 20 L. J. Ch. 626 - 81 
 
 Moore v. Knight, 60 L. J. Ch. 271 ; [1891] 1 Ch. 547 ; 63 L. T. 
 
 831; 39 W. E. 312 - - 76, 201 
 
 Moore v. Smee, 76 L. J. K. B. 658 ; [1907] 2K.B.8; 96 L. T. 
 
 594 139 
 
 Moore, Nettlefold & Co. v. Singer Manufacturing Co., 73 L. J. 
 
 K. B. 457 ; [1904] 2 K. B. 820 ; 90 L. T. 469 ; 52 W. E. 385 ; 
 
 20 T. L. E. 366 - 69 
 
 More v. More, 2 Atk. 157 87 
 
 Morehouse v. Newton, 3 De G. & Sm. 307 ; 13 Jur. 420 22 
 
 Morgan, Ee, Smith v. May, 69 L. J. Ch. 735 ; [1900] 2 Ch. 
 
 474; 48 W. E. 670 135 
 
 Morgan v. Evans, 3 CI. & F. 159 73 
 
 Morgan «. Jeffreys, 79 L. J. Ch. 360; [1910] 1 Ch. 620; 26 
 
 T. L. E. 324 - 122 
 
 Morgan v. Lewes, 4 Dow, 29 73- 
 
 Morgan v. Milman, 3 De G. M. & G. 24 ; 22 L. J. Ch. 897 ; 17 
 
 Jur. 193 ; 1 W. E. 143 78 
 
 Morley v. Cook, 2 Ha. 106 ; 12 L. J. Ch. 136 - 63 
 
 Morley v. Loughnan, 62 L. J. Ch. 515; [1893] 1 Ch. 736; 68 
 
 L. T. 619; 3E. 592 - - 67 
 
 "Morocco Bound" Syndicate v. Harris, 64 L. J. Ch. 400; 
 
 [1895] 1 Ch. 534 ; 72 L. T. 415 ; 43 W. E. 393 ; 13 E. 312 - 3 
 Morrell v. Pearson, 12 Beav. 284 - 92 
 
 Morres v. Hodges, 27 Beav. 625 181 
 
 Morrison v. Morrison, 1 Coop. t. Cott. 212 ; 4 Hare, 590 94 
 
 Morrison v. Thompson, 43 L. J. Q. B. 215 ; L. E. 9 Q. B. 480 ; 
 
 30 L. T. 869 ; 22 W. E. 859 - 72 
 
 Morse v. Martin, 34 Beav. 500 144 
 
 Mortimer v. Shortall, 2 Dru. & "War. 363 ; 1 Conn. & L. 417 
 
 106, 166 
 Mortimer v. Watts, 14 Beav. 616 ; 21 L. J. Ch. 169 180 
 
 Morton v. Woods, 38 L. J. Q. B. 81 ; L. E. 4 Q. B. 293 ; 9 B. 
 
 &S. 632; 17 W. E. 414 - 118 
 
 Moss, Ee, Levy v. Sewill, 55 L. J. Ch. 87 ; 31 Ch. D. 90; 54 
 
 L. T. 49 ; 34 W. E. 59 - 123 
 
 Mountfort, Exp., 14 Ves. 606 126 
 
 Moxey v. Bigwood, 4 De G. E. & J. 351 ; affd. 10 Jur. N. S. 
 
 597; 10L. T. 466; 12 W. E. 811 106 
 
 Moyle v. Moyle, 2 Euss. & M. 710 - 200 
 
 Mullins v. Smith, 1 Dr. & Sm. 204 ; 8 W. E. 739 23 
 
lxii LIST OF OASES CITED. 
 
 Mumford v. Stohwasser, 43 L. J. Ch. 694 ; L. R. 18 Eq. 556; 
 
 30 L. T. 859 ; 22 W. E. 833 - 110 
 
 Murless v. Franklin, 1 Swanst. 13 - - 35 
 
 Murray v. Elibank (Lord), 10 Ves. 84 - - 97 
 
 Mussoorie Bank v. Eaynor, 51 L. J. P. 0. 72 ; 7 App. Cas. 
 
 321 ; 46 L. T. 633 ; 31 W. E. 17 - 173 
 
 Mustapha v. Wedlake, [1891] W. N. 201 - 81 
 
 Mutlow v. Bigg, 45 L. J. Ch. 282 ; 1 Ch. D. 385 ; 34 L. T. 273 ; 
 
 24 W. E. 409 - - -51 
 
 Mutual Life Association v. Langley, 51 L. J. Ch. 996; 26 
 
 Ch. D. 686; 51 L. T. 284 ; 32 W. E. 791 40 
 
 Myler v. Fitzpatrick, 6 Madd. 360 18 
 
 Nab v. Nab, 10 Mod. 404 175 
 
 Nantes v . Carrock, 9 Ves. 182 66 
 
 Nash, Be, Cook v. Frederick, 79 L. J. Ch. 1 ; [1910] 1 Ch. 1 ; 
 
 101 L. T. 837 ; 26 T. L. E. 57 - - - 56 
 
 National Bank of Australasia v. United Hand in Hand and 
 
 Band of Hope Co., 4 App. Cas. 391 ; 40 L. T. 697 ; 27 W. E. 
 
 889 120, 124 
 
 National Phonograph Co. v. Edison Bell Consolidated Phono- 
 graph Co., 77 L. J. Ch. 218; [1908] 1 Ch. 335; 98 L. T. 
 
 291 ; 24 T. L. E. 201 162 
 
 National Provincial Bank of England, Exp., Ee Boulter, 46 
 
 L. J. Bk. 11; 4 Ch. D. 241; 35 L. T. 673; 25 W. E. 
 
 100 - 166 
 
 National Provincial Bank of England v. Games, 55 L. J. Ch. 
 
 576 ; 31 Ch. D. 582 ; 54 L. T. 696; 34 W. E. 600 120 
 
 National Provincial Bank v. Jackson, 33 Ch. D. 1 ; 55 L. T. 
 
 458 ; 34 W. E. 597 131 
 
 National Provincial Bank v. Marshall, 58 L. J. Ch. 229 ; 40 
 
 Ch. D. 1 12 ; 60 L. T. 341 ; 37 W. E. 183 - 137 
 
 National Trustees Co. of Australia v. General Finance Co., 74 
 
 L. J. P. C. 73 ; [1905] A. C. 373 ; 92 L. T. 736 ; 54 W. E. 
 
 1 ; 21 T. L. E. 522 - 183, 204 
 
 Neale, Ee, 15 Beav. 250 - 83 
 
 Neale ?\ Gordon-Lennox, 71 L. J. K. B. 939; [1902] A. C. 
 
 465 ; 87 L. T. 341 ; 51 W. E. 140 - 46 
 
 Neale v. Mackenzie, 1 Keen, 474 160 
 
 Nelson (Earl) v. Bridport (Lord), 8 Beav. 527 ; 10 Jur. 871 2 
 
 Nelthorpe v. Holgate, 1 Coll. 203 ; 8 Jur. 551 - 208 
 
 Nesbitt v. Tredennick, 1 Ball & B. 29 - ISO 
 
 Never. Pennell, 2 H. & M. 170; 33 L. J. Ch. 19 ; 9 L. T. 
 
 285; 11 W. E. 986 112 
 
LIST OF CASES CITED. lxiii 
 
 PAGE 
 
 Nevill v. Snelling, 49 L. J. Ch. 777 ; 15 Ch. D. 679 ; 43 L. T. 
 
 244 ; 29 W. E. 375 - - 59 
 
 Nevin, Ee, 60 L. J. Ch. 542; [1891] 2 Ch. 542; 65 L. T. 35 - 85 
 New's Settlement, Be, Langham v. Langham, 70 L. J. Ch. 
 
 710; [1901] 2 Ch. 534; 85 L. T. 174; 50 W. E. 17- 196 
 
 Newen, Ee, Carruthers v. Newen, 72 L. J. Ch. 356 ; [1903] 1 
 
 Ch. 812 ; 88 L. T. 264; 51 W. E. 297 - 46 
 
 Newman v. Newman, 54 L. J. Ch. 598; 28 Ch. D. 674; 52 
 
 L. T. 422 ; 33 W. E. 505 - 40, 128 
 
 Newman v. Pinto, 57 L. T. 31 - 75 
 
 Newman v. Eogers, 4 Bro. C. 0. 391 - - 209 
 
 Newton, Ee, 65 L. J. Ch. 641; [1896] 1 Ch. 740; 73 L. T. 
 
 692 ; 44 W. E. 470 - 85 
 
 Nicholas v. Eidlev, 73 L. J. Ch. 145 ; [1904] 1 Ch. 192 ; 89 
 
 L. T. 653 ; 52 W. B. 226 - - - 111 
 
 Nicholson, Ee, Eade v. Nicholson, 78 L. J. Oh. 516; [1909] 2 
 
 Ch. Ill; 100 L. T. 877 - - 31 
 
 Nicholson v. Hooper, 4 M. & Cr. 179 ; 2 Jur. 9 64 
 
 Nicholson v. Smith, 52 L. J. Ch. 191 ; 22 Ch. D. 640 ; 47 L. T. 
 
 650; 31 W. E. 471 138 
 
 Nicol v. Vaughan, 1 CI. & F. 49, 495 - - 65 
 
 Nind v. Nineteenth Century Building Society, 63 L. J. Q. B. 
 
 636; [1894] 2 Q,. B. 226; 70 L. T. 831 ; 42 W. E. 481 ; 58 
 
 J. P. 732 ; 9 E. 468 140 
 
 Nives v. Nives, 49 L. J. Ch. 674; 16 Ch. D. 649; 42 L. T. 
 
 832 ; 29 W. E. 302 - 212 
 
 Noakes v. Eice, 71 L. J. Ch. 139; [1902] A. C. 24; 86 L. T. 
 
 62 ; 50 W. E. 305 - 122 
 
 Nohbs v. Law Eeversionary Int. Society, 65 L. J. Ch. 906 ; 
 
 [1896] 2 Ch. 830 ; 75 L. T. 309 122 
 
 Nokes v. Gibbon, 3 Drew. 681 ; 26 L. J. Ch. 433 ; 3 Jur. N. S. 
 
 726 ; 5 W. E. 400 139 
 
 Nokes v. Kilmorey (Lord), 1 De G. & Sm. 444 209, 210 
 
 Norbury (Lord) v. Alleyne, 1 Dr. & Wal. 337 93 
 
 Nordenfelt v. Maxim-Nordenfelt Guns and Ammunition Co., 
 
 63 L. J. Ch. 908 ; [1894] A. C. 535 ; 71 L. T. 489 2 
 
 Norrington, Ee, Brindley v. Partridge, 13 Ch. D. 654 ; 28 
 
 W. E. 711 - 48, 178 
 
 Norrish v. Marshall, 5 Madd. 475 114 
 
 North v. Great Northern By., 2 Giff. 64; 29 L. J. Ch. 301 ; 6 
 
 Jur. N. S. 244 ; 1 L. T. 510 - 161 
 
 North Cheshire and Manchester Brewery Co. v. Manchester 
 
 Brewery Co., 68 L. J. Ch. 74 ; [1899] A. C. 83 ; 79 L. T. 
 
 645 74 
 
 North London Eailway v. G. N. By., 52 L. J. 0,. B. 380; 11 
 
 Q. B. D. 30 ; 48 L. T. 695 ; 31 W. E. 490 - - 91 
 
lxiy LIST OF CASES CITED. 
 
 BADE 
 
 North West Transportation Co. v. Beatty, 56 L. J. P. C. 102 ; 
 
 12 App. Cas. 589 ; 57 L. T. 426; 36 "W. E. 647 - 13, 72, 168 
 Northen v. Carnegie, 4 Drew. 587 ; 28 L. J. Ch. 930; 7 "W. E. 
 
 481 - - 50- 
 
 Northern Oo. of England Fire Insurance v. Whipp, 53 L. J. 
 
 Ch. 629 ; 26 Ch. D. 482 ; 51 L. T. 806 ; 32 W. E. 626 - 133 
 
 Norton, Ee, Norton v. Norton, 69 L. J. Ch. 31 ; [1901] 1 Ch. 
 
 101 ; 81 L. T. 724 ; 48 W. E. 140 - 9 
 
 Norton v. Cooper, 5 De G. M. & G. 728; 25 L. J. Ch. 121 ; 2 
 
 W. E. 659 - - 12fr 
 
 Nottidge v. Prince, 2 Giff. 246 ; 29 L. J. Ch. 857 ; 6 Jur. N. S. 
 
 1066 ; 8W.E. 742 - 67 
 
 7\ T unn v. Fabian, 35 L. J. Ch. 140; L. E. 1 Ch. 35; 11 Jur. 
 
 N. S. 868 ; 13 L. T. 343 164 
 
 Oakes v. Oakes, 9 Hare, 666 - 23- 
 
 Oatway, Ee, Hertslet v. Oatway, 72 L. J. Ch. 575 ; [1903] 
 
 2 Ch. 356 ; 88 L. T. 622 - 22 
 
 Oceanic Steam Navigation Co. v. Sutherberry, 50 L. J. Ch. 
 
 308; 16 Ch. D. 236; 43 L. T. 743; 29 W. E. 113 - - 64 
 
 O'Connor v. Haslam, 5 H. L. C. 170 - - 18a 
 
 Ogden v. Fossick, 4 De G. F. & J. 426; 32 L. J. Ch. 73; 9 
 
 Jur. N. S. 288; 7 L. T. 515; 11 "W. E. 128; 1 N. E. 143 - 158 
 Ogilvie v. Foljambe, 3 Mer. 53 - 20T 
 
 Olde v. Olde, 73 L. J. Ch. 81 ; [1904] 1 Ch. 35; 89 L. T. 604- 
 
 52 W. E. 260 ■ 210 
 
 Oldfleld, Ee, Oldfield v, Oldfield, 73 L. J. Ch. 433 ; [1905] 1 
 
 Ch. 549 ; 90 L. T. 392 - 174 
 
 Oldfield v. Eound, 5 Ves. 508 - 62 
 
 Oliver v. Hinton, 68 L. J. Ch. 583 ; [1899] 2 Ch. 264; 81 L. T. 
 
 212; 48 W. E. 3 - 131, 132 
 
 Olley v. Fisher, 56 L. J. Ch. 208 ; 34 Ch. D. 367 ; 55 L. T. 
 
 807 ; 35 W. E. 301 106, 158, 166, 172 
 
 Onions v. Cohen, 2 H. & M. 354; 34 L. J. Ch. 339; 11 Jur. 
 
 N. S. 198 ; 12 L. T. 15 - 208 
 
 O'Eeilly v. Thompson, 2 Cox, 271 164 
 
 Orme, Ee, Evans v. Maxwell, 50 L. T. 51 - 34 
 
 Orme's Case, 42 L. J. C. P. 38 ; L. E. 8 C. P. 281 ; 27 L. T. 
 
 652 ; 21 W. E. 171 ; 2 Hopw. & C. 60 103, 176 
 
 Ormerod, Grierson & Co. v. St. George's Ironworks, 74 L. J. Ch. 
 
 373; [1905] 1 Ch. 505; 95 L. T. 694 - - 18. 
 
 O'Eorke v. Bolingbroke, 2 App.l,Cas. 814'; 26 W/E. 239 58, 59 
 Orrell v. Orrell, 40 L. J. Ch. 539 ; JL, E. 6 u Ch. 302 ; 24 L. T. ' 
 
 245; 19 W. E. 370 . 56 ., 
 
LIST OF CASES CITED. lxv 
 
 i PAGE 
 
 O'Shea v. O'Shea, 59 L. J. P. 45 ; 15 P. D. 59 ; 62 L. T. 713 ; 
 38 W. E. 374 ... 93 
 
 Otter ;>. Vaux (Lord), 6 De G. M. & G. 638 ; 26 L. J. Ch. 128 ; 
 
 3 Jur. N. S. 169; 5 W. E. 188 71, 105 
 
 Ottley v. Gilbey, 8 Beav. 602 ; 14 L. J. Oh. 177 18 
 
 Ovey, Ee, Ovey v. Ovey, 69 L. J. Ch. 804 ; [1900] 2 Ch. 524 : 
 
 83 L. T. 311; 49 W. E. 45 - -196 
 
 Oxenden v. Compton (Lord), 2 Ves. jun. 69 7, 9, 49, 78, 85, 169 
 Oxford's (Earl) Case, 1 Ch. Eep. 1 - 3 
 
 Padbury v. Clarke, 2 Mac. & G. 298 ; 19 L. J. Ch. 533 ; 2 H. 
 
 & Tw. 341 - - 53 
 
 Paddon v. Eichardson, 7 De G. M. & G. 563 ; 1 Jur. N. S. 
 
 1192 - 203 
 
 Paget, Ee, Mellor v. Mellor, 67 L. J. Ch. 151 ; [1898] 1 Ch. 
 
 290 ; 78 L. T. 72 ; 46 W. E. 328 146 
 
 Paine v. Meller, 6 Ves. 349 213 
 
 Palk v. Clinton (Lord), 12 Ves. 48 - - 124 
 
 Palmer v. Emmerson, 80 L. J. Ch. 418 ; [1911] 1 Ch. 758 ; 104 
 
 L. T. 55" ; 27 T. L. E. 320 - - - 197 
 
 Palmer v. Hendrie, 27 Beav. 349; 28 Beav. 341 - 116 
 
 Panhard and Levassor (Sooiete, &c.) v. Panhard Levassor Motor 
 
 Co., Ltd., 70 L. J. Ch. 738 ; [1901] 2 Ch. 513 ; 85 L. T. 20 ; 
 
 50 W. E. 74 - 74, 75 
 
 Pankhurst v. Howell, L. E. 7 Ch. 138 ; 19 W- E. 312 - 24, 154 
 
 Papillon v. Voice, 2 P. Wms. 471 - 172 
 
 Pares, Ee, Lillingston v. Pares, 12 Ch. D. 333; 41 L. T. 574; 
 
 28 W. E. 193 - 136 
 
 Parffit v. Jephson, 46 L. J. C. P. 529 ; 36 L. T. 251 - 63 
 
 Parfitt v. Lawless, 41 L. J. P. 68; L. E. 2 P. & D. 462; 27 
 
 L. T. 215; 21 W. E. 200 68 
 
 Paris Skating Eink Co., Ee, 5 Ch. D. 959; 37 L. T. 298; 
 
 25 W. E. 701 37 
 
 Parker, Ee, Barker v. Barker, 16 Ch. D. 44 90 
 
 Parker, Ee, Dealing v. Brooks, 54 L. J. Ch. 694 15 
 
 Parker v. Bolton, 5 L. J. Ch. 98 - - - 174 
 
 Parker v. Brooke, 9 Ves. 583 - 131 
 
 Parker v. First Avenue Hotel Co., 24 Ch. D. 286 ; 49 L. T. 318 ; 
 
 32 W. E. 105 - - - - 93 
 
 Parker v. McKenna, 44 L. J. Ch. 425; L. E. 10 Ch. 96; 31 
 
 L. T. 739; 23 W. E. 271 65, 72 
 
 Parker v. Sowerby, 4 De G. M. & G. 321 ; 23 L. J. Ch. 623; 
 
 18 Jun. 523 ; 2 W. E. 547 - 55 
 
 k. e 
 
lxvi LIST OF GASES CITED. 
 
 PAOE 
 
 Parkin, Ee, Hill v. Schwatz, 62 L. J. Oh. 55 ; [1892] 3 Oh. 
 
 510; 67 L. T. 77; 41 W. E. 120 - 150 
 
 Parkinson v. Hanbury, 36 L. J. Ch. 292 ; L. E. 2 H. L. 1 ; 
 
 16 L. T. 243 ; 15 W. E. 642 - 21, 124 
 
 Parrott v. Palmer, 3 M. & E. 632 - 64, 215 
 
 Parry v. Warrington, 6 Madd. 155 88, 199 
 
 Pasley v. Freeman, 3 T. E. 51 ; Shirley, L. C. 542 60 
 
 Pass v. Dundas, 43 L. T. 665 ; 29 W. E. 332 - 194, 201 
 
 Patching!;. Dubbins, Kay, 1 ; 23 L. J. Ch. 45; 17 Jur. 1113; 
 
 2 W. E. 2 ; affd. 23 L. J. Ch. 49 ; 2 Eq. E. 71 - 92 
 
 Patman v. Harland, 50 L. J. Ch. 642 ; 17 Ch. D. 353 ; 44 
 
 L. T. 728 ; 29 W. E. 707 - 131, 132 
 
 Patrick, Ee, Bills v. Tatham, 60 L. J. Ch. Ill ; [1891] 1 Ch. 
 
 82; 63 L. T. 752; 39 W. E. 113 38, 40, 160, 170 
 
 Pattethall v. Tranter, 3 A. & E. 103; 4 L. J. K. B. 162; 4 
 
 Nev. & M. 649; 1 H. & W. 178 - - 62 
 
 Pawley v. Pawley, 74 L. J. Ch. 341; [1905] 1 Ch. 593; 92 
 
 L. T. 457 ; 53 W. E. 375 - 96 
 
 Payne v. Cowpton, 2 Y. & C. Ex. 457 - 117 
 
 Peacock v. Burt, 4 L. J. Ch. 33 128 
 
 Pearce, Ee, Eoberts v. Stephens, 8 E. 805 23 
 
 Pearson v. Pearson, 1 Sch. & L. 10 88 
 
 Peel's Settlement, Ee, Biddulph v. Peel, 80 L. J. Ch. 574 ; 
 
 [1911] 2 Ch. 165 ; 105 L. T. 330 153 
 
 Peers v. Lambert, 7 Beav. 546 - - 160 
 
 Peg^er. Neath District Tramways, 67 L. J. Ch. 17; [1898] 
 
 1 Ch. 183 ; 77 L. T. 550 ; 46 W. E. 243 63 
 
 Peile v. Stoddart, 1 Mac. & G. 192 ; 1 H. & Tw. 207 ; 13 Jur. 
 
 373 16 
 
 Pemberton v. Barnes, 40 L. J. Ch. 675 ; L. E. 6 Ch. 685 ; 25 
 
 L. T. 577; 19 W. E. 988 135 
 
 Pembroke v. Thorpe, 2 Swanst. 437, n. - 167 
 
 Pendleton </. Macrory, Dick. 736 86 
 
 Pennell v. Miller, 23 Beav. 172; 26 L. J. Ch. 699; 3 Jur. 
 
 N. S. 850; 5 W. E. 215 - 60 
 
 Penton v. Barnett, 67 L. J. Q. B. 11 ; [1898] 2 Q. B. 276; 77 
 
 L. T. 645 ; 46 W. E. 33 - 140 
 
 Perfect v. Lane, 3 De G. P. & J. 369 ; 31 L. J. Oh. 489 ; 8 Jur. 
 
 N. S. 547 ; 6 L. T. 8 ; 10 W. E. 197 58 
 
 Perkins, Ee, Perkins v. Bagot, 62 L. J. Ch. 531 ; [1893] 1 Ch. 
 
 283 ; 67 L. T. 743 ; 41 W. E. 170 ; 3 E. 40 - 149 
 
 Perry v. Barker, 8 Ves. 527; 13 Ves. 198 - - 116 
 
 Perry Herrick v. Attwood, 2 De G. & J. 21 ; 27 L. J. Oh. 121 ; 
 
 4 Jur. N. S. 101 - . in 
 
 Perry v. Meddowcroft, 4 Beav. 197 ; affd. 12 L. J. Oh. 104 123 
 
LIST OF CASES CITED. lxvii 
 
 PAGE 
 
 Perry v. Shipway, 4 De Or. & J. 353 ; 28 L. J. Ch. 660 ; 5 Jur. 
 
 N. S. 1015; 7 W. E. 574 - 16 
 
 Perry v. Truefitt, 6 Beav. 66 75 
 
 Persse v. Persse, 7 CI. & F. 279 - 45 
 
 Phayre v. Peree, 3 Dow, 116 - 189 
 Phillips, Exp., 19 Ves. 118 7, 9, 86 
 
 Phillips v. Alderton, 24 W. B. 8 164 
 Phillips v. Phillips, 4 De G. F. & J. 208 ; 31 L. J. Ch. 321 ; 8 
 
 Jur. N. 8. 145 ; 5 L. T. 655 ; 10 W. E. 236 - - 110, 128 
 Phillips v. Silvester, 42 L. J. Ch. 225; L. E. 8 Ch. 173; 27 
 
 L. T. 840 ; 21 W. E. 179 213 
 Phillips' Trusts, Ee, 72 L. J. Ch. 94 ; [1903] 1 Ch. 183 ; 88 
 
 L. T. 9 - 41 
 
 Phipps v. Lovegrove, 48 L. J. Ch. 477 ; L. E. 16 Eq. 80 ; 28 
 
 L. T. 584 ; 21 W. E. 590 40, 42 
 
 Pickering v. Ely (Bishop), 2 Y. & C. Ch. 249 ; 12 L. J. Ch. 
 
 271 ; 7 Jur. 479 - 168 
 
 Pickering u. Pickering, 4 M. & Cr. 304 ; 8 L. J. Ch. 336 ; 3 
 
 Jur. 743 - - 45 
 
 Pickering v. Vowles, 1 Bro. C. C. 197 180 
 
 Pickersgill v. Eodger, 5 Ch. D. 163 54 
 
 Piercy, Ee, Whitwham v. Piercy, 64 L. J. Ch. 249 ; [1895] 1 
 
 Ch. 83; 71 L. T. 745; 43 W. E. 134; 13 E. 106 - 2 
 
 Piercy, Ee, Whitwham v. Piercy, 76 L. J. Ch. 297 ; [1907] 1 
 
 Ch. 289 ; 95 L. T. S68 32 
 
 Pigott v. Bagley, McCl. & T. 569 53 
 
 Pike v. Pitzgibibon, 50 L. J. Ch. 394 ; 17 Ch. D. 454 ; 44 L. T. 
 
 662 ; 29 W. E. 551 ; Shirley, L. C. 34 95 
 
 Pilcher v. Bawlins, 41 L. J. Ch. 485 ; L. E. 7 Ch. 259 ; 52 L. T. 
 
 921 ; 20 W. E. 281 129 
 
 Pincke v. Curtis, 4 Bro. C. C. 329 - 206 
 
 Pinet & Cie. v. Maison Louis Pinet, 67 L. J. Ch. 41 ; [1898] 
 
 1 Ch. 179; 77 L. T. 613; 46 W. E. 506 - 75 
 
 Pink, Ee, 52 L. J. Ch. 674; 23 Ch. D. 577; 49 L. T. 418; 31 
 
 W. E. 728 - 7 
 
 Pinnel v. Hallet, Ambl. 106 151 
 
 Pitcairn, Ee, Brandreth v. Colvin, 65 L. J. Ch. 120; [1S96] 2 
 
 Ch. 199 ; 73 L. T. 430 ; 44 W. E. 200 - 30 
 
 Pitt v. Jones, 49 L. J. Ch. 795 ; 5 App. Cas. 651 ; 43 L. T. 3S5; 
 
 29 W. E. 33 - 135 
 
 Playters v. Abbott, 2 M. & K. 97 ; 3 L. J. Ch. 57 181 
 
 Pledge v. White, 65 L. J. Ch. 449; [1896] A. C. 187 ; 74 L. T. 
 
 323; 44 W. E. 589 112, 113 
 
 Plenderleith, Ee, 62 L. J. Ch. 993 ; [1893] 3 Ch. 332 ; 69 L. T. 
 
 325 ; 42 W. E. 224 ; 58 J. P. 164 ; 2 E. 625 - 7 
 
 Plomley, Ee, Vidler v. Collyer, 47 L. T. 283 - - 86 
 
 e2 
 
lxviii LIST OF CASES CITED. 
 
 PAOB 
 
 Plomley v. Felton, 58 L. J. P. 0. 50 ; 14 App. Cas. 61 ; 60 
 L. T. 193 - - - - - - 9S 
 
 Pollard's Settlement, Be, 65 L. J. Oh. 796 ; [1896] 2 Ch. 552 ; 
 75 L. T. 116; 45 W. R. 18 - 96 
 
 Pollard v. Clayton, 1 K. & J. 462 ; 1 Jur. N. S. 342 ; 3 W. R. 
 349 - - 161 
 
 Pollard v. Greenvil, 1 Oh. Rep. 184 - - 144 
 
 Polley v. Seymour, 2 Y. & C. Ex. 708 ; 7 L. J. Ex. Eq. 12 ; 
 
 1 Jur. 958 - - - 48 
 
 Pollock, Re, Pollock v. WarraU, 54 L. J. Ch. 489 ; 28 Ch. D. 
 
 552; 52 L. T. 718 - 153 
 
 Poole v. Poole, L. R. 7 Ch. 17; 25 L. T. 770; 20 W. R. 133 - 156 
 Pooley v. Budd, 14 Beav. 34 - 43, 174 
 
 Pope, Re, 55 L. J. Q. B. 522 ; 17 Q. B. D. 743 ; 55 L. T. 369 ; 
 
 34 W. R. 693 - - 16 
 
 Pope v. Biggs, 9 B. & C. 245; 7 L. J. (O. S.) K. B. 246; 4 
 
 Man. & R. 193 - 118 
 
 Porter v. Lopes, 7 Ch. D. 358 ; 37 L. T. 824 135 
 
 Porter v. Moore, 73 L. J. Ch. 729 ; [1904] 2 Ch. 367 ; 91 L. T. 
 
 484; 52 W. R. 619 - - 64 
 
 Portland (Duke) v. Topham, 11 H. L. C. 32 ; 34 L. J. Ch. 113 ; 
 
 10 Jur. N. S. 501 ; 10 L. T. 355 ; 12 W. R. 697 - 148 
 
 Postlethwaite, Re, Postlethwaite v. Rickman, 60 L. T. 514 ; 
 
 37 W. R. 200 - 178 
 
 Potts v. Potts, 3 L. J. (O. S.) Ch. 176 - 214, 215 
 
 Poulett (Earl) v. Hill (Viscount), 62 L. J. Ch. 466; [1893] 
 
 1 Ch. 277 ; 68 L. T. 476 ; 41 W. R. 503 ; 2 R. 288 - - 116 
 
 Powell v, Brodhurst, 70 L. J. Ch. 587 ; [1901] 2 Ch. 160 ; 84 
 
 L. T. 620 ; 49 W. R. 532 122, 125, 183 
 
 Powell v. PoweU, 69 L. J. Ch. 164 ; [1900] 1 Ch. 243 ; 82 L. T. 
 
 84 - - - 66, 68 
 
 Powell v. Smith, 41 L. J. Oh. 734 ; L. R. 14 Eq. 85 ; 20 W. R. 
 
 602 107 
 
 Power v. Banks, 70 L. J. Ch. 700 ; [1901] 2 Ch. 487 ; 85 L. T. 
 
 376 ; 49 W. R. 679 - - 198 
 
 Powys v. Mansfield, 3 M. & Cr. 359 ; 7 L. J. Ch. 9 ; 1 Jur. 
 
 861 - 153, 156 
 
 Prankerd v. Prankerd, 1 Sim. & St. 1 - - 35 
 
 Preston v. Tunbridge Wells Opera House, Ltd., 72 L. J. Ch. 
 
 774 ; [1903] 2 Ch. 323 ; 88 L. T. 53 - - - 118 
 
 Price v. Jenkins, 46 L. J. Ch. 805 ; 5 Ch. D. 619 ; 37 L. T. 51- 169 
 Price v. Macaulay, 2 De G. M. & G. 339 - 207 
 
 Price v. Price, 14 Beav. 598; 21 L. J. Ch. 53; affd. 1 De G. 
 
 M. & G. 308 79 
 
 Price u. Worwood, 4 H. & N. 512 ; 28 L. J. Ex. 329; 5 Jur. 
 
 N. S. 472 ; 7 W. R. 506 - - - 57 
 
LIST OF CASES CITED. brix 
 
 PAGE 
 
 Priestley v. Lamb, 6 Ves. 421 - - - 87 
 
 Prime v. Stebbing, 2 Ves. sen. 409 - - 151 
 
 Proctor v. Bailey, 59 L. J. Oh. 12 ; 42 Ch. D. 390 ; 61 L. T. 
 
 752 ; 38 W. B. 100 - - 94 
 
 Prosser v. Edmonds, 1 T. & C. Ex. 481 37 
 
 Proud v. Price, 63 L. J. Q. B. 61 ; 69 L. T. 664 ; 42 W. E. 102 ; 
 
 9 E. 40 95 
 
 Proudley v. Fielder, 2 M. & K. 57 98 
 
 Pryor v. Pryor, 2 De G. J. & S. 205 ; 33 L. J. Cb. 441 ; 10 Jur. 
 
 N. S. 603 ; 10 L. T. 360 ; 12 W. E. 781 ; 4 N. E. 440 149 
 
 Pugh v. Heath, 51 L. J. Q. B. 367 ; 7 App. Cas. 235 ; 46 L. T. 
 
 321; 30 W. E. 553 120 
 
 Pumfrey, Ee, Worcester City and County Bank v. Blick, 52 
 
 L. J. Ch. 228; 22 Ch. D. 255; 48 L. T. 516; 31 W. E. 
 
 195 - 189, 191 
 
 Purdie v. Millett, Taml. 28 122 
 
 Pye, Exp., 18 Ves. 140 79, 152 
 
 Pym v. Lockyer, 5 M. & Or. 59 ; 10 L. J. Ch. 153 ; 5 Jur. 34, 
 
 620 - 154 
 
 Eaby v. Eidehalgh, 7 De G. M. & G. 104 ; 24 L. J. Oh. 528 ; 
 
 1 Jur. N. S. 363; 3 W. E. 344 191, 192 
 
 Eadclifle, Ee, Eadclifle v. Bewes, 61 L. J. Ch. 186 ; [1892] 
 
 1 Ch. 227 ; 66 L. T. 363; 40 W. E. 3Z3 - - 103 
 
 Eadnor's (Earl) Trusts, Ee, 59 L. J. Ch. 782 ; 45 Ch. D. 402 193 
 Eamsbotham v. Senior, L. E. 8 Eq. 575 ; 17 W. E. 1057 87 
 
 Eamsbottom v. Wallis, 5 L. J. (N. S.) Ch. 92 - 124 
 
 Eamsden v. Dyson, L. E. 1 H. L. 129; 12 Jur. N. S. 506; 14 
 
 W. E. 926 64 
 
 Eandall v. Morgan, 12 Ves. 67 175 
 
 Baw, Ee, Morris v. Griffiths, 53 L. J. Ch. 1051 ; 26 Oh. D. 601 ; 
 
 51 L. T. 282; 32 W. E. 986 48 
 
 Eawlinson v. Mort, 93 L. T. 555 ; 21 T. L. E. 774 77 
 
 Eaybould, Ee, Eaybould v. Turner, 69 L. J. Ch. 249; [1900] 
 
 1 Ch. 199; 82 L. T. 46; 48 W. E. 301 - 191 
 
 Eayner v. Preston, 50 L. J. Ch. 472 ; 18 Ch. D. 1 ; 44 L. T. 
 
 787 ; 29 W. E. 546 - - 213 
 
 Bead v. Bowers, 4 Bro. 0. C. 441 95 
 
 Eebbeck, Ee, Bennett w. Eebbeck, 63 L. J. Ch. 596; 71 L. T. 
 
 74 ; 42 W. E. 473 ; 8 E. 376 - - - 187 
 
 Eeddaway v. Banbam, 65 L. J. Q. B. 381; [1896] A. C. 199; 
 
 74 L. T. 289 ; 44 W. E. 638 - - - - 74 
 
 Eeed v. Devaynes, 2 Cox, 285; 3 Bro. C. C. 95 - 138 
 
lxx LIST OF OASES CITED. 
 
 PAOE 
 
 Eees, Ee, Bees v. Eees, 60 L. T. 260 155 
 
 Eees v. De Bernardy, 65 L. J. Ch. 656 ; [1896] 2 Ch. 437 ; 74 
 
 L. T. 585 - 58 
 
 Eees v. Parkinson, 2 Anstr. 497 116 
 
 Eeeve v. Berridge, 57 L. J. Q. B. 265; 20 Q. B. D. 523; 58 
 
 L.T. 836; 36 W. E. 517 - - 133 
 
 Eeeve v. Lisle, 71 L. J. Ch. 768; [1902] A. C. 461 ; 87 L. T. 
 
 308 ; 51 W. E. 576 - 71, 122 
 
 Eeg. v. Clark, 7 Ell. & Bl. 186; 26 L. J. Q. B. 169; 3 Jut. 
 
 N. S. 335 - 83 
 
 Beg. v. Gyngall, 62 L. J. Q. B. 559; [1893] 2 Q. B. 232; 69 
 
 L. T. 481 ; 57 J. P. 773 ; 4 E. 448 83, 84 
 
 Eeg. v. Nash, 52 L. J. Q. B. 442 ; 10 Q. B. D. 454; 48 L. T. 
 
 447 ; 31 W. E. 420 84 
 
 Eehden v. Wesley, 29 Beav. 213 201 
 
 Eeid v. Langlois, 1 Mac. & G. 627; 19 L. J. Oh. 337; 2 
 
 H. &Tw. 59; 14 Jui-. 467 18 
 
 Eeuter v. Sala, 48 L. J. C. P. 492 ; 4 C. P. D. 239 ; 40 L. T. 
 
 476 ; 27 W. E. 631 209 
 
 Eevell v. Hnssey, 2 BaU & B. 280 158 
 
 Bex v. De Manneville, 5 East, 221 ; 1 Smith, 358 83 
 
 Bex v. Greenhill, 4 A. & E. 624 ; 6 N. & M. 244 83 
 
 Eex v. Hopkins, 7 East, 579 ; 3 Smith, 577 84 
 
 Eex v. Soper, 5 T. E. 278 84 
 
 Ehoades, Exp., Ee Ehoades, 68 L. J. a B. 804; [1899] 2 
 
 Q. B. 347 ; 80 L. T. 742 ; 47 W. E. 561 - - - 107 
 
 Eice v. Eice, 2 Drew. 73 ; 23 L. J. Ch. 289 ; 2 W. B. 139 212 
 
 Eichards, Ee, L. E. 8 Eq. 119 - 89 
 
 Bichards, Ee, Humber v. Eichards, 59 L. J. Ch. 728 ; 45 
 
 Ch. D. 589 ; 63 L. T. 451 ; 39 W. E. 186 39 
 
 Eichards v. Cooper, 5 Beav. 304 118 
 
 Bichards v. Delbridge, 43 L. J. Ch. 459 ; L. B. 18 Eq. 11 ; 22 
 
 W. B. 584 79 
 
 Bichardson v. Feary, 57 L. J. Ch. 1049 ; 39 Ch. D. 45 ; 59 
 
 L. T. 165 ; 36 W. B. 807 135, 136 
 
 Bichardson v. Younge, 40 L. J. Ch. 338 ; L. E. 6 Ch. 478 ; 25 
 
 L. T. 230 ; 19 W. E. 612 122, 125 
 
 Eicherson, Ee, Scales v. Havhoe, 61 L. J. Ch. 202; [1892] 
 
 1 Ch. 379 ; 66 L. T. 174 ; 40 W. E. 233 - 51 
 
 Bimmer v. Webster, 71 L. J. Ch. 561 ; [1902] 2 Ch. 163; 86 
 
 L. T. 491 ; 50 W. B. 517 - US 
 
 Eising, Ee, Eising v. Eising, 73 L. J. Ch. 455 ; [1904] 1 Ch. 
 
 533 ; 90 L. T. 504 - 146. 
 
 Eoberts, Ee, Knight v. Eoberts, 76 L. T. 479 204 
 
 Boberts, Be, Eoberts v. Eoberts, 74 L. J. Ch. 483; [19051 
 
 1 Ch. 704 ; 93 L. T. 253 46", 102 
 
LIST OF CASES CITED. Ixxi 
 
 ?AGE 
 
 Eoberts v. Davey, 4 B. & Ad. 664 ; 2 L. J. K. B. 141 ; 1 Nev. 
 
 & M. 443 - 57 
 
 Eoberts v. Tunstall, 4 Ha. 257 ; 14 L. J. Ch. 184 ; 9 Jur. 
 
 292 - 178 
 
 Bobertson v. Hartopp, 59 L. J. Cb. 553 ; 43 Ch. D. 484 ; 62 
 
 L. T. 585 - 92 
 
 Bobinson v. Harkin, 65 L. J. Ch. 773 ; [1896] 2 Ch. 415 ; 74 
 
 L. T. 777 ; 44 W. E. 702 - - 195 
 
 Bobinson v. Mollett, 44 L. J. 0. P. 262 ; L. E. 7 H. L. 802 ; 
 
 33 L. T. 544 - - 69 
 
 Bobinson v. Pett, 3 P. Wms. 249 - 72 
 
 Bobinson v. Preston, 4 K. & J. 585 ; 27 L. J. Ch. 395 ; 4 Jur. 
 
 N. S. 186 - 183 
 
 Bobinson Printing Co. v. " Chic," Limited, 74 L. J. Ch. 399 ; 
 
 [1905] 2 Ch. 123 ; 93 L. T. 262 ; 53 W. E. 681 ; 21 T. L. E. 
 
 446 - - 14 
 
 Bobinson v. Bobinson, 1 De G. M. & G. 247 ; 21 L. J. Ch. 
 
 Ill; 16 Jur. 255 - 199 
 
 Bobinson v. Bobinson, 19 Beav. 494 48 
 
 Bobinson v. Wheelwright, 6 De G. M. & G. 535 ; 25 L. J. Ch. 
 
 285 ; 2 Jur. N. S. 554 ; 4 W. B. 427 96 
 
 Eobson v. Plight, 4 De G. J. & S. 608 ; 34 L. J. Ch. 226 ; 11 
 
 Jur. N S. 147 ; 11 L. T. 725 ; 13 W. B. 393 144 
 
 Eochefoucauld v. Boustead, 66 L. J. Ch. 74 ; [1897] 1 Ch. 196 ; 
 
 75 L. T. 502 ; 45 W. B. 272 - - - - 71, 175 
 
 Eochford v. Hackman, Kay, 308 ; 23 L. J. Ch. 261 ; 2 W. B. 
 
 205 ; 2 Eq. E. 223 86 
 
 Eochfort v. Battersby, 2 H. L. C. 338 118 
 
 Bochfort v. Pitzmaurice, 2 Dr. & War. 21 ; 1 Com. & L. 158 171 
 Eoden v. Smith, Ambl. 588 - 90 
 
 Eoe v. Mutual Loan Fund, 56 L. J. Q. B. 541 ; 19 Q. B. D. 
 
 347 ; 35 W. B. 723 56 
 
 Eogers v. Jones, 3 Ch. D. 688 ; 24 W. E. 1039 - 56 
 
 Sogers v. Eice, 61 L. J. Ch. 573 ; [1892] 2 Ch. 170; 66 L. T. 
 
 640 ; 40 W. B. 489 - 140 
 
 Eogers v. Soutten, 2 Keen, 598 ; 7 L. J. Ch. 118; Coop. 96 - 
 
 89, 153 
 
 EoUs v. Pearce, 40 L. J. Ch. 791 ; 5 Ch. D. 730 ; 36 L. T. 438 ; 
 
 25 W. E. 899 - 81 
 
 Eoper v. Bartholomew, 12 Pri. 797 151 
 
 Eose v. Gould, 15 Beav. 189 ; 21 L. J. Ch. 360 156 
 
 Eose v. Page, 2 Sim. 471 118 
 
 Eose v. Spicer, 80 L. J. K. B. 1011 ; [1911] 2 K. B. 234; 104 
 
 L. T. 619; 27 T. L. E. 367 - 140 
 
 Eose v. Watson, 10 H. L. C. 672 ; 33 L. J. Ch. 385 ; 10 Jur. 
 
 N. S. 297 ; 10 L. T. 106; 12 W. E. 585; 3 N. E. 673 - 127, 164 
 
lxxii LIST OF CASES CITED. 
 
 I PAGE 
 
 Rosenberg v. Lindo, 48 L. T. 478 - - - 87 
 Eoughton v. Gibson, 46 L. J. Ch. 366 ; 36 L. T. 93 ; 25 W. E. 
 
 269 ----- - - 135 
 
 Kourke v. Eobinson, 80 L. J. Ch. 295 ; [1911] 1 Ch. 480; 103 
 
 L. T. 895 - 120 
 
 Bow v. Dawson, 1 Ves. sen. 331 37 
 
 Eowe v. Gray, 46 L. J. Ch. 279; 5 Ch. D. 263; 25 W. E. 250 - 135 
 Eowe v. May, 18 Beav. 613 - - - 208 
 
 Eowe v. Eowe, 2 De G. & Sm. 294 ; 17 L. J. Ch. 357 ; 12 Jur. 
 
 909 - - 98, 155 
 
 Eowe v. Wood, 2 J. & W. 553 - - 119 
 
 Eowell v. Satchell, 73 L. J. Ch. 20; [1903] 2 Ch. 212 ; 89 L. T. 
 
 267 - 93 
 
 Eowland v. Fothergill, 43 L. J. Ch. 252 ; L. E. 17 Eq. 132 ; 
 
 29 L. T. 414 ; 22 W. E. 42 - 161, 162 
 
 Eowland v. Witherden, 3 Mac. & G. 568 ; 21 L. J. Ch. 480 199 
 Eowley v. Adams, 4 M. & Cr. 534 ; 9 L. J. Ch. 34 ; 3 Jur. 
 
 1069 - 191 
 
 Eowley v. Ginnever, 66 L. J. Ch. 669; [1897] 2 Ch. 503; 77 
 
 L. T. 302 - 181 
 
 Eowlls v. Bebb, 69 L. J. Ch. 562; [1900] 2 Ch. 107 ; 82 L. T. 
 
 633; 48 W. E. 562 31 
 
 Eudland v. Crozier, 2 De G. & J. 143; 27 L. J. Ch. 261; 4 
 
 Jur. N. S. 675 ; 6 W. E. 305 7 
 
 Eumbold v. Forteath, 3 K. & J. 44, 748 16 
 
 Eussell v. Dickson, 4 H. L. C. 293 ; 17 Jur. 307 155 
 
 Eussell v. East Anglian Ey., 3 Mac. & G. 104; 20 L. J. Ch. 
 
 257 ; 15 Jur. 1033 ; 6 Ey. Cas. 501 94 
 
 Eussell v. Nicholls, 16 L. J. Ch. 47 86 
 
 Eussell v. Smithies, 1 Anstr. 96 119 
 
 Eyan v. Mutual Tontine Westminster Chambers Association, 
 
 62 L. J. Ch. 252 ; [1893] 1 Ch. 116 ; 67 L. T. 820 ; 41 W. E. 
 
 146; 2E. 156 168 
 
 Eyder, Ee, 20 Ch. D. 514; 30 W. E. 417 9, 49 
 
 Saccharin Corporation v. Wild, 72 L. J. Ch. 270 ; [1903] 1 Ch. 
 
 410; 88 L. T. 101 - - - - - 93 
 
 St. Albyn v. Harding, 27 Beav. 11 - 59 
 
 Sainterv. Ferguson, 1 Mac. & G. 286; 19 L. J. Ch. 170; 1 
 
 H. & Tw. 383 ; 14 Jur. 255 - - 56, 137 
 
 Salisbury (Marquis) v. Wilkinson, cited 14 Ves. 509 - 18 
 
 Salmon, Ee, Priest v. Uppleby, 42 Ch. D. 351 ; 62 L. T. 270 ; 
 
 38 W. B. 150 - 192, 198 
 
LIST OF CASES CITED. lxxiii 
 
 PAGE 
 
 Salt v. Northampton (Marquis), 61 L. J. Oh. 49 ; [1892] A. C. 
 1 ; 65 L. T. 765 ; 40 W. E. 529 - 123 
 
 Samuel v. Jarrah Timber and Wood Paving Corp., 73 L. J. Ch. 
 526; [1904] A. C. 323; 90 L. T. 731; 52 W. E. 673; 20 
 T. L. E. 536 - - 122 
 
 Samuel v. Nev/bold, 75 L. J. Ch. 705 ; [1906] A. C. 461 ; 95 
 L. T. 209 ; 22 T. L. B. 703 - - 59 
 
 Sandonu. Hooper, 12 L. J. Ch. 309; 6 Beav. 246; affd. 14 
 
 L. J. Ch. 120 - 119 
 
 Saunby v. London (Ont.) Water Commrs., 75 L. J. P. C. 25 ; 
 
 [1906] A. C. 110 ; 93 L. T. 648 ; 22 T. L. E. 37 93 
 
 Saunders v. Shafto, 74 L. J. Ch. 110; [1905] 1 Oh. 126; 91 
 
 L. T. 789 ; 53 W. E. 424 - - 149 
 
 Saunders v. Smith, 3 M. & Or. 711 ; 7 L. J. Ch. 227; 2 Jur. 
 
 491 - 16 
 
 Savage v. Foster, 9 Mod. 35 - 76 
 
 Savage v. Norton, 77 L. J. Ch. 198 ; [1908] 1 Ch. 290 ; 98 L. T. 
 382 - 210 
 
 Savery v. King, 5 H. L. C. 627 ; 25 L. J. Ch. 482 ; 2 Jur. 
 
 N. S. 503; 4 W. E. 471 68, 203 
 
 Saxlehner v. Apollinaris Co., 66 L. J. Ch. 533; [1897] 1 Ch. 
 
 893; 76 L. T. 617 74 
 
 Saxton v. Bartley, 48 L. J. Ch. 519 ; 27 W. E. 615 - 135 
 
 Saxton v. Saxton, 49 L. J. Ch. 128 ; 13 Ch. D. 359; 41 L. T. 
 
 649 ; 28 W. E. 294 - 24 
 
 Sayers v. Collyer, 54 L. J. Ch. 1 ; 28 Ch. D. 103 ; 51 L. T. 723; 
 
 33 W. E. 91 ; 49 J. P. 244 92 
 
 Sayre v. Hughes, 37 L. J. Ch. 401 ; L. E. 5 Eq. 376; 18 L. T. 
 
 347 ; 16 W. E. 662 - 34 
 
 Scales v. Baker, 28 Beav. 91 ; 6 Jur. N. S. 1134 ; 8 W. E. 287 - 97 
 Soanlan, Ee, 57 L. J. Ch. 718 ; 40 Ch. D. 200 ; 59 L. T. 599 ; 
 
 36 W. E. 842 85 
 
 Soholefield v. Ingham, C. P. Coop. 477 124 
 
 Scholefield v. Templer, 4 De G. & J. 429 ; 7 W. E. 653- 65, 68 
 
 Scholfield v. Londesborough (Earl), 65 L. J. Q. B. 593 ; [1896] 
 
 A. C. 514 ; 75 L. T. 254 ; 45 W. E. 124 114 
 
 Schweitzer v. Mayhew, 31 Beav. 37 117 
 
 Scott, Ee, Langton v. Scott, 72 L. J. Ch. 20 ; [1903] 1 Ch. 1 ; 
 
 87 L. T. 574 ; 51 W. E. 182 - 156 
 
 Scott v. Alvarez, 64 L. J. Ch. 821 ; [1895] 2 Ch. 603 ; 73 L. T. 
 
 43 ; 43 W. E. 694 ; 12 E. 474 62 
 
 Scott and Alvarez's Contract, Ee, 64 L. J. Ch. 379, n. ; [1895] 
 
 1 Ch. 596 ; 72 L. T. 455 ; 12 E. 474 - 212 
 
 Scott v. Jones, 4 CI. & P. 382 186 
 
 Scott v. Parcher, 3 Mer. 652 37 
 
lxxiv LIST OF CASES CITED. 
 
 PAGE 
 
 Scottish Equitable Life Association, Ee Policy No. 6402 of, 71 
 
 L. J. Ch. 189 ; [1902] 1 Oh. 282 ; 85 L. T. 720 ; 50 W. E. 
 
 327 - ■ 34, 35 
 
 Searle v. Cook, 59 L. J. Ch. 259 ; 43 Ch. D. 519 - 43 
 
 Seaton v. Seaton, 57 L. J. Ch. 661 ; 13 App. Cas. 61 ; 58 L. T. 
 
 565 ; 36 W. E. 865 ' - 53 
 
 Seddon v. North Eastern Salt Co., 74 L. J. Ch. 199; [1905] 
 
 1 Ch. 326 ; 91 L. T. 793 ; 53 W. E. 232 - 61 
 
 Seeley v. Jago, 1 P. Wms. 389 - 51 
 
 Selby v. Alston, 3 Ves. 339 103 
 
 Selous, Ee, Thomson v. Selous, 70 L. J. Ch. 402 ; [1901] 1 Ch. 
 
 921 ; 84 L. T. 318 ; 49 W. E. 440 103, 183 
 
 Sen Sen Co. v. Brittens, 68 L. J. Oh. 250 ; [1899] 1 Ch. 692 ; 
 
 80 L. T. 278 ; 47 W. E. 358 - 75 
 
 Sharman v. Brandt, 40 L. J. Q. B. 312 ; L. E. 6 Q. B. 720; 
 
 19 W. E. 936 69 
 Sharp *. Leach, 31 Beav. 491 ; 8 Jur. N. S. 1026 ; 7 L. T. 146 ; 
 
 10 W. E. 878 69 
 
 Sharp v. Eickards, 78 L. J. Ch. 29 ; [1909] 1 Ch. 109 ; 99 L. T. 
 
 916 " 112 
 
 Sharpies v. Adams, 32 Beav. 213 ; 8 L. T. 138 ; 11 W. E. 450- J 10 
 Shaw v. Bunny, 2 De G. J. & S. 468 ; 34 L. J. Ch. 257 ; 11 
 
 Jur. N. S. 99 ; 11 L. T. 645 ; 13 W. E. 374 - 71 
 
 Shaw v. Cates, 78 L. J. Ch. 226; [1909] 1 Oh. 389 ; 100 L. T. 
 
 146 ' 197 
 
 Shaw v. Poster, 42 L. J. Ch. 49 ; L. E. 5 H. L. 321 ; 27 L. T. 
 
 281 ; 20 W. E. 907 40, 208 
 
 Shelly v. Nash, 3 Madd. 232 58 
 
 Shepard v. Jones, 21 Ch. D. 469; 47 L. T. 604; 31 W. E. 303- 118 
 Shephard v. Elliot, 4 Madd. 254 124 
 
 Sheppard, Ee, De Brimont v. Harvey, 80 L. J. Ch. 52 ; [1911] 
 
 1 Oh. 50 ; 103 L. T. 424 201, 204 
 
 Sheridan v. Joyce, 1 Jo. & Lat. 401 ; 7 Ir. Eq. E. 115 174 
 
 Sherwood v. Sanderson, 19 Ves. 280 7, 86 
 
 Ship v. Crosskill, 39 L. J. Ch. 552 ; L. E. 10 Eq. 85 ; 22 L. T. 
 
 315; 18 W. E. 618 60 
 
 Shipperdson v. Tower, 1 Y. & 0. Ch. 441 ; 6 Jur. 658 48 
 
 Shrewsbury (Countess) v. Shrewsbury (Earl), 1 Ves. jr. 227 104 
 Shrewsbury & Chester Ey. v. Chester & Birmingham Ey., 
 
 20 L. J. Ch. 574 ; 1 Sim. N. S. 410 15 
 Sidebotham v. Barrington, 3 Beav. 524; 5 Jur. 429; 4 Beav. 
 
 110; 5 Beav. 261 ; 10 L. J. Ch. 302 206 
 
 Sidmouth v. Sidmouth, 2 Beav. 447 ; 9 L. J. Ch. 282 35 
 
 Siegert v. Findlater, 47 L. J. Ch. 233 ; 7 Ch. L. 801 ; 38 L. T. 
 
 349 ; 26 W. E. 459 75 
 
LIST OF GASES CITED. lxxy 
 
 > Page 
 Silkstone & Haigh Moor Coal Co. v. Edey, 69 L. J. Ch. 73 ; 
 
 [1900] 1 Ch. 167; 48 W. E. 137 178 
 
 Simper v. Foley, 2 J. & H. 555 ; 5 L. T. 669 - 93 
 
 Singleton v. Tomlinson, 3 App. Cas. 404 ; 38 L. T. 653 ; 26 
 
 W. E. 722 50 
 
 Singer Manufacturing Co. v. Loog, 52 L. J. Ch. 481 ; 8 App. 
 
 Cas. 15 ; 48 L. T. 3 ; 31 W. E. 325 - 74 
 
 Sisson's Trusts, Ee, 72 L. J. Ch. 212; [1903] 1 Ch. 262; 87 
 
 L. T. 743; 51 W. E. 411 - 133,194 
 
 Sisson v. Giles, 3 De G. J. & S. 614 ; 32 L. J. Ch. 606 ; 8 L. T. 
 
 233 - 51 
 
 Skeats v. Skeats, 2 Y. & O. Ch. 9; 12 L. J. Ch. 22; 6 Jur. 
 
 942 35 
 
 Skinner, Ee, Cooper v. Skinner, 73 L. J. Ch. 94 ; [1904] 1 Ch. 
 
 289 ; 89 L. T. 663 ; 52 W. E. 346 " - 19 
 
 Skipworth v. Skipworth, 9 L. J. (N. S.) Ch. 182 - 22 
 
 Slark v. Dakyns, 44 L. J. Ch. 205 ; L. E. 10 Ch. 35 ; 31 L. T. 
 
 712; 23 W. E. 118 146 
 
 Slazenger v. Spalding, 79 L. J. Ch. 122 ; [1910] 1 Ch. 257 ; 
 
 102 L. T. 390 76 
 
 Sleeman v. Wilson, L. E. 13 Eq. 36; 25 L. T. 408; 20 W. E. 
 
 109 - 83 
 
 Sleight v. Lawson, 3 K. & J. 292 ; 26 L. J. Ch. 553 ; 5 W. E. 
 
 589 - 22 
 
 Smart v. Smart, 61 L. J. P. C. 38 ; [1892] A. C. 425 ; 67 L. T. 
 
 510; 56 J. P. 676 84 
 
 Smart v. Tranter, 59 L. J. Ch. 363 ; 43 Ch. D. 587 ; 62 L. T. 
 
 356 ; 38 W. E. 530 99 
 
 Smith, Exp., Ee Hepburn, 54 L. J. Q. B. 422; 14 Q. B. D. 
 
 394 186 
 
 Smith, Ee, L. E. 10 Ch. 79 ; 23 "W. E. 297 9 
 
 Smith, Ee, Hands v. Andrews, 62 L. J. Ch. 336 ; [1893] 2 Ch. 1 ; 
 
 68 L. T. 337; 41 W. E. 289; 2 E. 360; 57 J. P. 516 199 
 
 Smith, Ee, Smith v. Smith, 68 L. J. Ch. 333 ; [1899] 1 Ch. 
 
 365; SOL. T. 113; 47 W.E. 223 102 
 
 Smith, Ee, Smith v. Thompson, 65 L. J. Ch. 159 ; [1896] 1 Ch. 
 
 71 ; 73 L. T. 604 ; 44 W. E. 270 196, 198 
 
 Smith v. Camelford (Lord), 2 Ves. jr. 698 146 
 
 Smith v. Chichester, 2 Dr. & War. 393 ; 1 Conn. &L. 486 - 119, 180 
 Smith v. Claxton, 4 Madd. 484 51 
 
 Smith v. ClySord, 1 T. E. 738 137 
 
 Smith v. Everett, 29 L. J. Ch. 236 ; 27 Beav. 446 ; 7 W. E. 
 
 605 - 193 
 
 Smith v. Harrison, 26 L. J. Ch. 412 ; 3 Jur. N. S. 287 ; 5 
 
 W. E. 408 - lo& 
 
 Smith v. Matthews, 3 De G. F. & J. 139 ; 30 L. J. Ch. 445 ; 
 
 7 Jur. N. S. 378 ; 4 L. T. 266 ; 9 W. E. 644 175 
 
Lxxvi LIST OF OASES CITED. 
 
 PAGE 
 
 Smith v. Pincombe, 3 Mac. & G. 653 ; 16 Jur. 205 45, 203 
 
 Smith v. Smith, 60 L. J. Uh. 694; [1891] 3 Ch. 550; 65 L. T. 
 
 334 ; 40 W. B. 32 - - 123 
 
 Smiths Wallace, 64 L. J. Ch. 240 ; [1895] 1 Ch. 385 ; 71 L. T. 
 
 814 ; 43 W. B. 539 ; 13 E. 201 - - 63 
 
 Solomon v. Attenborough, 80 L. J. Ch. 503; [1911] 2 Ch. 159; 
 
 105 L. T. 11; 27 T. L. E. 471 193 
 
 Solomon, Ee, Nore v. Meyer, [1912] 1 Ch. 261 191, 197 
 
 Somerset, Ee, Somerset v. Poulett (Barl), 63 L. J. Ch. 41 ; 
 
 [1894] 1 Ch. 231 ; 69 L. T. 744; 42 W. E. 145; 7E. 34 - 192, 205 
 Sons of the Clergy (Corp.) v. Mose, 9 Sim. 610 - - 11 
 
 South v. Williams, 12 Sim. 566 ; 11 L. J. Ch. 410 ; 6 Jur. 332 - 155 
 Southcomb v. Exeter (Bp.), 6 Hare, 213 ; 16 L. J. Ch. 378 ; 11 
 
 Jur. 725 ; 12 Jur. 744 160, 209 
 
 Speer v. Crawler, 2 Mer. 418 - 42 
 
 Speight v. Gaunt, 53 L. J. Ch. 419; 9 App. Cas. 1; 50 L. T. 
 
 330 ; 32 W. E. 435 ; 48 J. P. 84 - 200 
 
 Spence, Ee, 2 Phill. 247 ; 16 L. J. Ch. 309 ; 11 Jur. 399 84 
 
 Spencer v. Wilson, 42 L. J. Ch. 754 ; L. E. 16 Eq. 501 ; 29 L. T. 
 
 19 - 50 
 
 Spencer Bell to L. & S. W. By., 33 W. E. 771 123 
 
 Spike v. Harding, 47 L. J. Ch. 323 ; 7 Ch. D. 871 ; 38 L. T. 
 
 285 ; 26 W. E. 420 42 
 
 Spiller v. Spiller, 3 Swanst. 556 15 
 
 Sporle v. Whayman, 20 Beav. 607 ; 24 L. J. Ch. 789 126 
 
 Sprange v. Lee, 77 L. J. Ch. 274 ; [1908] 1 Ch. 424; 98 L. T. 
 
 400 - 190, 203 
 
 Spread v. Morgan, 11 H. L. C. 588; 13 L. T. 164; 6 N. E. 
 
 269 - 53 
 
 Spring v. Pride, 4 De G. J. & S. 395 ; 10 Jur. N. S. 646 ; 10 
 
 L. T. 473; 12 W. E. 892 71 
 
 Spurway v. Glynn, 9 Ves. 483 - 88 
 
 Squire v. Campbell, 1 M. & Cr. 459; 6 L. J. Ch. 41 61 
 
 Stables, Be, 21 L. J. Ch. 620 8 
 
 Stammers v. Elliott, 37 L. J. Ch. 353; L. E. 3 Ch. 195; 18 
 
 L. T. 1 ; 16 W. E. 489 155 
 
 Stamp Duties (Commr.) v. Byrnes, SO L. J. P. C. 114; [1911] 
 
 A. C. 386 - - 35 
 
 Standing v. Bowring, 55 L. J. Ch. 218; 31 Ch. D. 282; 54 
 
 L. T. 191 ; 34 W. E. 204 34, 35, 77, 183 
 
 Stanton v. Knight, 1 Sim. 482 - loo, 156 
 
 Stapilton v. Stapilton, 1 Atk. 2 59 
 
 Stead v. Clay, 4 Euss. 550 ; 6 L. J. (O. S.) Ch. 138 99 
 
 Steele v. N. Metropolitan By., 36 L. J. Ch. 540 ; L. E. 2 Ch. 
 
 237 ; 16 L. T. 192 ; 15 W. B. 597 4 
 
LIST OF CASES CITED. lxxvii 
 
 FADE 
 
 Stephens, Ee, Warburton v. Stephens, 59 L. J. 109 ; 43 Ch. D. 
 
 39 ; 61 L. T. 609 - 26 
 
 Stephens v. Green, 64 L. J. Ch. 546 ; [1895] 2 Ch. 148 ; 72 L. T. 
 
 574 ; 43 W. E. 465 ; 12 E. 252 - 41 
 
 Sterry v. Combs, 40 L. J. Ch. 495 ; 25 L. T. 10 ; 19 W. E. 964 - 62 
 Stevens, Ee, Cooke v. Stevens, 66 L. J. Ch. 118; [1897] 1 Ch. 
 
 162; 76 L. T. 18; 45 W. E. 284 -202 
 
 Stevens v. Theatres Limited, 72 L. J. Ch. 764 ; [1903] 1 Ch. 
 
 857 ; 88 L. T. 458 ; 51 W. E. 585 117 
 
 Stevens v. Trevor-Garrick, 62 L. J. Ch. 660 ; [1893] 2 Ch. 307 ; 
 
 69 L. T. 11; 41 W. E. 412; 3 R. 468 - 97 
 
 Stewart, Ee, Stewart v. McLaughlin, 77 L. J. Ch. 525 ; [1908] 
 
 2 Ch. 251 ; 99 L. T. 106 ; 24 T. L. E. 679 29, 79 
 
 Stewart v. Stewart, 6 CI. & F. 911 ; Maol. & E. 401 - 46 
 
 Stock v. McAvoy, 41 L. J. Ch. 230 ; L. E. 15 Eq. 55 ; 27 L. T. 
 
 441 ; 21 W. E. 520 - 35 
 
 Stocken v. Dawson, 6 Beav. 371 ; affd. 17 L. J. Ch. 282 184 
 
 Stocker v. Wedderburn, 3 K. & J. 393 ; 26 L. J. Ch. 713 ; 5 
 
 W. E. 671 - - 158 
 
 Stocks v. Dobson, 4 De G. M. & G. 11 ; 22 L. J. Ch. 884 ; 17 
 
 Jur. 539 - - - 40 
 
 Stoddart v. Union Trust, Ltd., 81 L. J. K. B. 140; [1912] 
 
 1 K. B. 181 - 38 
 
 Stogdon v. Lee, 60 L. J. Q. B. 669; [1891] 1 Q. B. 661 ; 64 
 
 L. T. 494 ; 39 W. E. 467 - 95 
 
 Stokes v. Clendon, 3 Swanst. 150, n. 117 
 
 Stone v. Godfrey, 5 De G. M. & G. 76; 23 L. J. Ch. 769; 
 
 18 Jur. 524 - - - - 46 
 
 Stone v. Stone, 30 L. J. Ch. 196; L. E. 5 Ch. 74; 22 L. T. 
 
 182 ; 18 W. E. 225 - 170 
 
 Stopford v. Canterbury (Lord), 11 Sim. 82 ; 4 Jur. 812 8 
 
 Stott v. Milne, 25 Ch. D. 710; 50 L. T. 742 188 
 
 Stowell (Lady) v. Cole, 2 Vern. 296 18 
 
 Strangwayes v. Eead, 67 L. J. Ch. 581; [1898] 2 Ch. 419; 
 
 79 L. T. 245 ; 46 W. E. 671 - - 9 
 
 Strapp v. Bull, Sons & Co., 64 L. J. Ch. 658 ; [1895] 2 Ch. 1 ; 
 
 72 L. T. 514; 43 W. E. 641; 12 E. 387 - - 14 
 
 Strathmore (Countess) v. Bowes, 1 Ves. jr. 22 ; affd. nom. 
 
 Bowes v. Bowes, 6 Bro. P. C. 427 - 97 
 
 Stratton v. Best, 1 Ves. jr. 285 - - 53 
 
 Streatfield v. Streatfield, Cas. t. Talb. 176 9 
 
 Stretton v. Ashmall, 3 Drew. 9 ; 24 L. J. Ch. 277 ; 3W.E.4- 197 
 Strickland, Ee, L. E. 6 Ch. 226 ; 24 L. T. 530 ; 19 W. E. 515 - 8 
 Strickland v. Strickland, 10 Sim. 374 ; 9 L. J. Ch. 60 - - 102 
 
 Strickland v. Symons, 53 L. J. Ch. 582; 26 Ch. D. 245; 51 
 
 L. T. 406 ; 32 W. E. 8S9 - - - 189 
 
Ixxviii LIST OF CASES CITED. 
 
 PAGE 
 
 Strong, Ee, 55 L. J. Ch. 553 ; 32 Ch. D. 342; 55 L. T. 3 ; 34 
 W. B. 614 ; 51 J. P,C. - 199 
 
 Stuart, Ee, Smith v. Stuart, 66 L. J. Oh. 780 ; [1897] 2 Ch. 
 583 ; 77 L. T. 128 ; 46 W. E. 41 ■ 203, 204 
 
 Stuart v. Bute (Marq.), 9 H. L. 0. 440 86 
 
 Stubbs v. Slater, 79 L. J. Ch. 420; [1910] 1 Ch. 195; 102 L. T. 
 444 - " 185 
 
 Stucley, Ee, Stucley v. Kekewich, 75 L. J. Ch. 58 ; [1906] 
 
 1 Ch. 67 ; 93 L. T. 718 ; 54 W. E. 256 - 211 
 
 Stump v. Gaby, 2 De G. M. & G. 623; 22 L. J. Ch. 352; 17 
 
 Jur. 5 ; 1 W. E. 85 68 
 
 Styles v. Guy, 1 Mao. & G. 422 ; 19 L. J. Ch. 185 ; 1 H. & Tw. 
 
 523; 14 Jur. 355 - - 194, 203 
 
 Sumpter v. Hedges, 67 L. J. Q. B. 545; [1898] 1 Q. B. 673; 
 
 78 L. T. 378; 46 W. E. 454- - 64 
 
 Surman v. Wharton, 60 L. J. Q. B. 233; [1891] 1 Q. B. 491 ; 
 
 64 L. T. 866; 39 W. E. 416 98 
 
 Sutton v. Wilders, 41 L. J. Ch. 30 ; L. E. 12 Eq. 373 ; 25 L. T. 
 
 292; 19 W. E. 1021- 200 
 
 Sutton Coldfield Grammar School, Ee, 51 L. J. P. C. 8 ; 7 App. 
 
 Cas. 91; 45 L. T.631; 30 W. E. 341 - 12 
 
 Swain, Ee, Swain v. Bringeman, 61 L. J. Ch. 20; [1891] 3 Ch. 
 
 233 ; 65 L. T. 296 205 
 
 SwaitJand v. Dearsley, 29 Beav. 430 ; 30 L. J. Ch. 652 ; 4 
 
 L. T. 432 ; 9 W. E. 526 107 
 
 Sweet v. Southcote, 2 Bro. 0. C. 66 129 
 
 Swinbanks, Exp., 48 L. J. Bk. 120; 11 Ch. D. 525; 40 L. T. 
 
 825 ; 27 W. E. 898 18 
 
 Swinfen v. Chelmsford (Earl), 5 H. & N. 290; 29 L. J. Ex. 
 
 382 ; 6 Jur. N. S. 1035 ; 2 L. T. 406 ; 8 W. E. 545 - 60 
 
 Swinfen v. Swinfen, 27 L. J. Ch. 491 ; 2 De G. & J. 381 ; 4 
 
 Jur. N. S. 774 ; 6 W. E. 480 46 
 
 Swinfen v. Swinfen, 29 Beav. 199 ; 7 Jur. N. S. 89 ; 4 L. T. 
 
 194; 9 W. E. 175 104 
 
 Sykes, Ee, Sykes v. Sykes, 78 L. J. Ch. 609 ; [1909] 2 Ch. 241 ; 
 
 101 L. T. 1 - 184 
 
 Sykes v. Sykes, 3 B. & Co. 541 ; 3 L. J. (0. S.) K. B. 46 ; 5 Dowl. 
 
 & E. 292 - 74 
 
 Tabor v. Brooks, 48 L. J. Ch. 130 ; 10 Ch. D. 273 ; 39 L. T. 
 
 528 - 7 
 Tailby v. Official Eeceiver, 58 L. J. Q. B. 75 ; 13 App. Cas. 
 
 523 ; 60 L. T. 162; 37 W. E. 153 - 37 
 
 Talbut v. Prere, 9 Ch. D. 568 ; 27 W. E. 148 - 23 
 
 Talbot v. Shrewsbury (Duke), Prec. Ch. 394 - 154 
 
LIST OF CASES CITED. \™-x 
 
 PiQE 
 
 Talbot v. Shrewsbury (Earl), 4 M. & Or. 672 ; 9 L. J. (N. S.) 
 
 Ch. 125 - - 85 
 
 Talmarsb v. Mugleston, 4 L. J. (0. S.) Ch. 200 160, 209 
 
 Tamplin v. James, 15 Ch. D. 215 ; 43 L. T. 520 ; 29 W. E. 
 
 311 - 158 
 
 Tanqueray-Willaume and Landau, 51 L. J. Ch. 434 ; 20 Ch. D. 
 
 465 ; 46 L. T. 542 ; 30 W. E. 801 - 26, 186 
 
 Tarn v. Turner, 57 L. J. Ch. 1085; 39 Ch. D. 456; 59 L. T. 
 
 742; 37 W. E. 276 - 115 
 
 Tasker v. Small, 3 M. & Cr. 63 208 
 
 Tasker (W.) & Sons, Ltd., Ee, Hoare v. W. Tasker & Sons, 
 
 Ltd., 74 L. J. Ch. 643 ; [1905] 2 Ch. 587 ; 93 L. T. 195 ; 54 
 
 W. E. 65 104 
 
 Tatev. Hilbert, 2 Ves. jr. Ill - - 80,81 
 
 Tate v. Williamson, L. E. 2 Ch. 5 ; 15 L. T. 549 ; 15 W. E. 
 
 321 - 70, 159 
 
 Taylor, Ee, Taylor v. Taylor, 56 L. J. Ch. 597 81 
 
 Taylor v. Blakelock, 56 L. J. Ch. 390 ; 32 Ch. D. 560 ; 55 
 
 L. T. 8 174 
 
 Taylor v. Eckersley, 45 L. J. Ch. 527 ; 2 Ch. D. 302 ; 34 L. T. 
 
 637 ; 24 W. E. 450 - 162 
 
 Taylor v. Emerson, 4 Dr. & "War. 117; 2 Conn. & L. 558; 
 
 6 It. Eq. E. 224 - 117 
 
 Taylor v. London and County "Bank, 70 L. J. Ch. 477; [1901] 
 
 2 Ch. 231 ; 84 L. T. 397 ; 49 W. E. 451 39, 110, 129, 133 
 
 Taylor v. Popham, 1 Bro. C. C. 168 54, 138 
 
 Taylor v. Eoe, 63 L. J. Ch. 282 ; [1894] 1 Ch. 413 ; 70 L. T. 
 
 232 ; 42 W. E. 426; 8 E. 295 - 119 
 
 Taylor v. EundeU, Cr. & P. 104; 5 Jur. 1129; 1 Ph. 222 ; 13 
 
 L. J. Ch. 20 ; 7 Jur. 1073 - 18 
 
 Taylor o. EusseU, 61 L. J. Ch. 657 ; [1892] A. C. 244 ; 66 
 
 L. T. 565 ; 41 W. E. 43 - 71,122,128,129 
 
 Taylor v. Taylor, 44 L. J. Ch. 718 ; L. E. 20 Eq. 155 157 
 
 Teign Valley Ey. v. Southwood, 19 W. E. 690 93 
 
 Tennant v. Trenchard, 38 L. J. Ch. 661 ; L. E. 4 Ch. 537 ; 20 
 
 L. T. 856 - 71, 117 
 
 Terry and White's Contract, In re, 55 L. J. Ch. 345 ; 32 Ch. D. 
 
 14 ; 54 L. T. 353 ; 34 W. E. 379 207 
 
 Thames and Mersey Marine Insurance v. " Gunford " Ship Co., 
 
 80 L. J. P. C. 146; [1911] A. C. 529; 105 L. T. 312; 27 
 
 T. L. E. 518 - 62 
 
 Thellusson v. Liddard, 69 L. J. Ch. 639; [1900] 2 Ch. 635 ; 82 
 
 L. T. 753; 49 W. E. 10 - 103 
 
 Thomas, Ee, 22 L. J. Ch. 1075 86 
 
 Thomas, Ee, Thomas v. Howell, 56 L. J. Ch. 9 ; 34 Ch. D. 
 
 166 ; 55 L. T. 629 - - - 49 
 

 ' PAGE 
 
 [1891] 
 
 3 Ch. 
 
 
 - 
 
 - 
 
 30 
 
 - 
 
 - 
 
 89 
 
 Ch. 506 ; 14 
 
 
 - 
 
 - 
 
 85 
 
 - 
 
 
 162 
 
 •]1 Ch. 
 
 550; 
 
 
 - 
 
 105, 
 
 172 
 
 
 t 
 
 i, 76 
 
 - 
 
 146, 
 
 149 
 5 
 
 
 - 
 
 178 
 
 lxxx LIST OF OASES CITED. 
 
 Thomas, Ee, Wood v. Thomas, 60 L. J. Ch. 781 
 
 482 ; 65 L. T. 142 ; 40 W. E. 75 
 Thomas v. Att.-Gen., 2 Y. & C. Ex. 525 
 Thomas v. Eoberts, 3 De G. & Sm. 758 ; 19 L. J. 
 
 Jur. 639 
 Thombleson v. Black, 1 Jur. 198 
 
 Thompson v. Hickman, 76 L. J. Ch. 254; , [ 1 9°7] 
 
 96 L. T. 454; 23 T. L. E. 311 
 Thompson v. Leake, 1 Madd. 39 
 Thompson v . Simpson, 1 Dr. & War. 459 
 Thompson v. Smith, 1 Madd. 395 
 Thomson v. Eastwood, 2 App. Cas. 215 
 Thorn v. Bigland, 8 Ex. 725 ; 22 L. J. Ex. 243 - 60 
 
 Thorndike v. Hunt, 3 De G. & J. 563; 28 L. J. Ch. 417; 5 
 
 Jur. N. S. 879 ; 1 W. E. 246 193 
 
 Thorne v. Cann, 64 L. J. Ch. 1 ; [1895] A. C. 11 ; 71 L. T. 
 
 852; 11 E. 67 - 105 
 
 Thorne v. Heard, 64 L. J. Ch. 652 ; [1895] A. C. 495 ; 73 L. T. 
 
 291 ; 44 W. E. 155; 11 E. 254 204 
 
 Thornett v. Haines, 15 M. & W. 367 ; 15 L. J. Ex. 230 63 
 
 Thornloe v. Skoines, 42 L. J. Ch. 788; L. E. 16 Eq. 126; 21 
 
 W. E. S80 - - - 95 
 
 Thornton v. Bright, 2 M. & Cr. 230; 6 L. J. Ch. 121 - - 146 
 
 Thorpe v. Owen, 5 Beav. 224 ; 11 L. J. Ch. 129 - 169, 170 
 
 Thrapp v. Collett, 26 Beav. 125 - 11 
 
 Thynne (Lady E.) v. Glengall (Earl), 2 H. L. C. 131 ; 12 Jur. 
 
 805 - 55, 151 
 
 Tickel v. Short, 2 Ves. sen. 239 - 21 
 
 Tilley v. Thomas, L. E. 3 Ch. 61 ; 17 L. T. 422 ; 16 W. E. 
 
 166 - 209 
 
 Tillott, Ee, Lee v. Wilson, 61 L. J. Ch. 38 ; [1892] 1 Ch. 86 ; 
 
 65 L. T. 781 ; 40 W. E. 204 - 201 
 
 Timson v. Bamsbottom, 2 Keen, 35 - - 41 
 
 Tipton Green Colliery Co. v. Tipton Moat Colliery, 47 L. J. Ch. 
 
 152 ; 7 Ch. D. 192 ; 26 W. E. 348 - 118 
 
 Titley v. Davies, 2 T. & C. Ch. 399 - - 112 
 
 Toleman, Ee, Westwood v. Booker, 66 L. J. Ch. 452; [1897] 
 
 1 Ch. 866 ; 76 L. T. 381 ; 45 W. E. 548 - - 15 
 
 Tollemache, Ee, 72 L. J. Ch. 539; [1903J 1 Ch. 955; 88 L. T. 
 
 670; 51 W. E. 597 - 196 
 
 Toilet v. Toilet, 2 P. Wms. 489 - H4 
 
 Tolson v. Collins, 4 Ves. 483 ... 155 
 
 Tomson v. Judge, 3 Drew. 306 ; 24 L. J. Ch. 785 ; 1 Jur. N. S. 
 
 583; 4 W. E. 573 - - - - .73 
 

 62, 
 
 207 
 
 
 - 
 
 105 
 
 
 115, 
 
 186 
 
 - 
 
 62, 
 
 207 
 
 - 
 
 
 180 
 
 
 - 
 
 73 
 
 22 - 
 
 
 171 
 
 - 
 
 45, 46 
 
 !. 100; 
 
 [1896] 
 
 132 
 115 
 
 LIST OF CASES CITED. lxxxi 
 
 PAGE 
 
 Topham v. Portland (Duke), 39 L. J. Oh. 259 ; L. E. 5 Ch. 40 ; 
 
 22 L. T. 847 ; 18 W. B. 235 - - - 148 
 
 Torrance v. Bolton, 42 L. J. Ch. 177 ; L. E. 8 Ch. 118 ; 27 L. T. 
 
 738 ; 21 W. E. 134 - 
 Toulmin v. Steer, 3 Mer. 210 
 Tower v. Eous (Lord), 18 Ves. 132 
 Townsend v. Champernowne, 1 Y. & J. 449 - 
 Trench v. St. George, 1 Dr. & Wal. 417 
 Trevelyan v. White, 1 Beav. 588 
 Trevor v. Trevor, 1 P. Wms. 622 ; 5 Bro. P. C. 
 Trigg v. Lavallee, 15 Moo. P. C. 270 
 Trinidad Asphalt Co. v. Coryat, 65 L. J. P. 
 
 A. C. 587; 75 L. T. 108 - 
 Troughton v. Binkes, 6 Ves. 573 
 Trowell v. Shenton, 47 L. J. Ch. 738; 8 Ch. D. 318; 38 L. T. 
 
 369 ; 26 W. E. 837 - 78, 169 
 
 Trulock v. Eobey, 15 Sim. 265 ; 15 L. J. Ch. 343 124 
 
 Trustee, Exp., Ee Eiggs, 70 L. J. K. B. 541 ; [1901] 2 K. B. 
 
 16 ; 84 L. T. 428 ; 49 W. E. 624 - - 140 
 
 Trustees, Executors and Agency Co. v. Short, 58 L. J. P. C. 4 ; 
 
 13 App. Cas. 793 ; 59 L. T. 677 ; 37 W. E. 333 63 
 
 Tryon, Ee, 7 Beav. 496 - 177 
 
 Tucker v. Bennett, 57 L. J. Ch. 507 ; 38 Ch. D. 1 ; 58 L. T. 
 
 650 .... 66, 107, 149 
 
 Tucker v. Vowles, 62 L. J. Ch. 172; [1893] 1 Ch. 195; 67 
 
 L. T. 763 ; 41 W. E. 156; 3 E. 107 - - - - 61 
 
 Tullett v. Armstrong, 1 Beav. 1; 8 L. J. Ch. 19; 2 Jur. 912; 
 
 afid. 4 My. & Cr. 377 ; 9 L. J. Ch. 41 ; 4 Jur. 34 - 96 
 
 Turner, Ee, Barker v. Ivimey, 66 L. J. Ch. 282 ; [1897] 1 Ch. 
 
 536; 76 L. T. 116; 45 W. E. 495 191,195 
 
 Turner, Ee, Turner v. Fitzroy, 66 L. T. 758 53 
 
 Turner v. Carney, 5 Beav. 515 - - 22 
 
 Turner v. Collins, 41 L. J. Ch. 558 ; L. E. 7 Ch. 329 ; 25 L. T. 
 
 779 ; 20 W. E. 305 66 
 
 Turner v. Green, 64 L. J. Ch. 539 ; [1895] 2 Ch. 205 ; 72 L. T. 
 
 763; 43 W. E. 537 ; 13 E. 551 - 45 
 
 Turner v. Hancock, 51 L. J. Ch. 517 ; 20 Ch. D. 303 ; 46 L. T. 
 
 750; 30 W. E. 480 - 192 
 
 Turner v. Martin, 7 De G. M. & G. 429 ; 26 L. J. Ch. 216; 3 
 
 Jur. N. S. 397 ; 5 W. E. 227 154 
 
 Turner v. Morgan, 8 Ves. 143 134 
 
 Turner v. Turner, 1 J. & W. 39 202 
 
 Turner v. Turner, SO L. J. Ch. 473; [1911] 1 Ch. 716; 101 
 
 L. T. 901 - - 29 
 
Lsxxii LIST OF CASES CITED. 
 
 PAGE 
 
 Turner v. Wright, 2 De G. F. & J. 234 ; 29 L. J. Ch. 598 ; 6 
 Jur. N. S. 809 ; 8 W. B. 675 - - - - 214 
 
 Turquand v. Bhodes, 37 L. J. Ch. 830 ; 18 L. T. 844 ; 16 W. E. 
 1074 - ... .207 
 
 Turton v. Turton, 58 L. J. Oh. 677; 42 Oh. D. 128; 61 L. T. 
 
 571 ; 38 W. B. 22 - - - - 74 
 
 Tyrrell's case, Dyer, 155 a ; Tud. L. 0. Cony. 289 - 176 
 
 Tyrrell v. Tyrrell, 4 Yes. 1 ... 89 
 
 Underhay v. Bead, 57 L. J. Q. B. 129; 20 Q. B. D. 209; 58 
 L. T. 457 ; 36 W. E. 298 - - - 118 
 
 Upmann v. Elkan, 41 L. J. Ch. 246 ; L. E. 7 Ch. 130 ; 25 L. T. 
 813; 20 W. E. 131 - - - - 75 
 
 TTppington v. Bullen, 2 Dru. & War. 184 - - 73 
 
 Valpy, Ee, Valpy v. Valpy, 75 L. J. Ch. 301 ; [1906] 1 Ch. 
 
 531 ; 94 L. T. 472 ; 54 W. E. 401 - - 25 
 
 Vane v. Dungannon (Lord), 2 Sch. & L. 118 - 148 
 
 Van Gelder v. Sowerby Bridge Flour Society, 59 L. J. Ch. 583 ; 
 
 44 Ch. D. 374; 63 L. T. 132; 38 W. E. 625 - -109 
 
 Van Grutten v. Foxwell, 66 L. J. Q. B. 745 ; [1897] A. C. 
 
 658; 77 L. T. 170 - - - - . - 176 
 
 Van Praagh v. Everidge, 72 L. J. Ch. 260; [1903] 1 Ch. 434; 
 
 88 L. T. 249 ; 51 W. E. 357 - - - 105 
 
 Vansittart v. Vansittart, 2 De G. & J. 249; 27 L. J. Ch. 289; 
 
 4 Jur. N. S. 519; 6 W. E. 3S6 84 
 
 Van Straubenzee, Ee, Boustead v. Cooper, 70 L. J. Ch. 825 ; 
 
 [1901] 2 Ch. 779; 85 L. T. 541 - - - 31 
 
 Vardon's Trust, Ee, 55 L. J. Ch. 259 ; 31 Ch. D. 275 ; 53 L. T. 
 
 895 ; 34 W. E. 185 - 53, 55 
 
 Venture, The, 77 L. J. P. 105 ; [1908] P. 218 ; 99 L. T. 385 - 34 
 Vickers v. Pound, 6 H. L. C. 885 ; 28 L. J. Ch. 16 ; 4 Jur. 
 
 N. S. 543 ; 6 W. E. 580 . 23 
 
 Vint v. Padgett, 2 De G. & J. 611; 28 L. J. Ch. 21 • 4 Jur. 
 
 N. S. 1122; 6 W. E. 641 - - - 112 
 
 Voisey, Exp., 52 L. J. Ch. 121 ; 21 Ch. D. 442 ; 47 L. T. 362 ; 
 
 31 W. E. 19 - - us 
 
 Voyle v. Hughes, 2 Sm. & G. 18 ; 23 L. J. Ch. 23S ; 18 Jur. 
 
 341; 2 W. E. 143 . 37 
 
 Vyse v. Foster, 44 L. J. Ch. 37 ; L. E. 7 H. L. 318 ; 31 L. T 
 
 177 ; 23 W. E. 355 . 135 
 
LIST OF CASES CITED. lxxxiii 
 
 PAGE 
 
 W., Ee, W. v. M., 77 L. J. Ch. 147 ; [1907] 2 Cli. 557 - 85 
 
 Wain v. Warlters, 5 East, 10; 1 Smith; Shirley L. C. 124 164 
 
 Waite v. Jennings, 75 L. J. K. B. 542; [1906] 2 K. B. 11 ; 95 
 
 L. T. 1 ; 54 W. E. 511 ; 22 L. T. E. 510 - 141 
 
 Waite v. Parkinson, 85 L. T. 456 - 203, 205 
 
 Waldron v. Sloper, 1 Drew. 193 ... 133 
 
 Walford, Ee, Eenyon v. Watford, [1912] 1 Ch. 219; 81 L. J. 
 
 Ch. 128 - - 88 
 
 Walker, Exp., 1 Drew. 508; 22 L. J. Ch. 888; 17 Jur. 708; 
 
 1 W. E. 378 - - - - - 49 
 
 Walker, Ee, McColl v. Bruce, 77 L. J. Ch. 370; [1908] 1 Ch. 
 
 560; 98 L. T. 524 - - - 144 
 
 Walker, Ee, Walker v. Duncombe, 70 L. J. Ch. 417; [1901] 
 
 1 Ch. 879 ; 84 L. T. 193 ; 49 W. E. 394 - 7, 9 
 
 Walker, Ee, Walker v. Walker, 60 L. J. Ch. 25 ; 63 L. T. 237 ; 
 
 38 W. E. 766 - 199 
 
 Walker v. Denne, 2 Ves. jun. 170 - 51 
 
 Walker v. Jeffreys, 1 Hare, 341; 11 L. J. Ch. 209; 6 Jur. 336- 160 
 Walker v. Linom, 76 L. J. Ch. 500; [1907] 2 Ch. 104; 97 
 
 L. T. 92 - - - 133 
 
 Walker v. Smith, 29 Beav. 394 67 
 
 Wall v. Wall, 15 Sim. 513 ; 16 L. J. Ch. 305 ; 11 Jur. 403 88 
 
 WaUace v. Evershed, 68 L. J. Ch. 415; [1899] 1 Ch. 891; 
 
 80 L. T. 523 - - - - 117 
 
 Wallace v. Greenwood, 50 L. J. Ch. 289 ; 16 Ch. D. 362 ; 43 
 
 L. T. 720 - - 136 
 
 Wallace v. Ponrfret, 11 Ves. 542 - 156 
 
 Wallworth v. Holt, 4 M. & Cr. 619 ; 4 Jur. 814 - 13 
 
 Walmsley v, Vaughan, 1 De G. & J. 114; 26 L. J. Ch. 503; 
 
 3 Jur. N. S. 497 ; 5 W. E. 549 - - 156 
 
 Walmsley v. Walmsley, 3 Jo. & Lat. 556 - -21, 202, 215 
 
 Walrond v. Eosslyn, 48 L. J. Ch. 602 ; 11 Ch. D. 640 51 
 
 Walter v. Hodge, 2 Swanst. 92 ; 1 Wils. Ch. 445 80 
 
 Walters v. Meredith, 3 Y. & C. Ex. 264 142 
 
 Walters v. Walters, 50 L. J. Ch. 819 ; 18 Ch. D. 182 ; 44 L. T. 
 
 769 ; 29 W. E. 888 28 
 
 Walton v. Johnson, 15 Sim. 352; 12 Jur. 299- - 93 
 
 Ward v. Audland, 8 Beav. 201 ; 14 L. J. Ch. 145; 9 Jur. 384 - 38 
 Ward v. Baugh, 4 Ves. 623 - - 56 
 
 Ward v. Duncombe, 62 L. J. Ch. 881 ; [1893] A. C. 369, 390; 
 
 69 L. T. 121 ; 42 W. E. 59; 1 E. 224 40, 41 
 
 Ware v. Polhill, 11 Ves. 257 - 9, 49 
 
 Waring v. Cunliffe, 1 Ves. jun. 99 ... 121 
 
 Wamistrey v. Tanfleld (Lady), 1 Ch. Eep. 29 ; 1 Wh. & T. L. C. 
 
 Eq. 93 37 
 
 /2 
 
lxxxiv LIST OF CASES CITED. 
 
 PAGE 
 
 Warner, Exp., 19 Ves. 202 - - 127 
 Warner v. Jacob, 51 L. J. Ch. 642 ; 20 Ch. D. 220 ; 46 L. T. 
 
 656 ; 30 W. E. 721 - - - 71, 122 
 
 Warwick v. Eichardson, 10 M. & W. 284 ; 11 L. J. Ex. 351 - 190 
 Wasdala, Ee, Brittin v. Partridge, 68 L. J. Oh. 117 ; [1899] 1 
 
 Oh. 163 ; 79 L. T. 520 ; 47 W. E. 169 - 41 
 Wnterhouso v. Stansfield, 9 Ha. 234 ; 10 Ha. 254 ; 21 L. J. Ch. 
 
 881; 16 Jur. 1006; 1 W. E. 11 - 2 
 Waters, Ee, Waters v. Boxer, 58 L. J. Ch. 750; 42 Ch. D. 517 ; 
 
 61 L. T. 431 ; 38 W. E. 57 - 88 
 
 Waters v. Groom, 11 CI. & F. 684 - 122 
 
 Waters v. Taylor, 15 Ves. 10 ; 2 Ves. & B. 299 - 14 
 
 Watney v. Trist, 45 L. J. Ch. 412 - - - 13 
 
 Watson v. Hayes, 5 M. &Cr. 125 ; 9 L. J. Ch. 49; 4 Jur. 186- 90 
 Watson v. Marston, 4 De G. M. & G. 230 106, 116 
 
 Watson v. Watson, 33 Beav. 574 - 153 
 Watts v. Symes, 1 De G. M. & G. 240; 21 L. J. Ch. 713; 16 
 
 Jur. 114 - - ... 112 
 
 Way's Trusts, Ee, 2 De G. J. & S. 365 ; 34 L. J. Ch. 49 ; 10 
 
 Jur. N. S. 1166; 11 L. T. 495; 13 W. E. 149 - 40 
 
 Weale v. Ollive, 17 Beav. 252 - 78 
 Weall, Ee, Andrews v. Weall, 58 L.J. Ch. 713; 42 Ch. D. 
 
 674; 61 L. T. 238; 37 W. E. 779 - - 200 
 
 Weaver, Ee, 21 Ch. D. 615 ; 48 L. T. 93; 31 W. E. 224 - 8 
 Webb, Ee, Lambert v. Still, 63 L. J. Ch. 145 ; [1894] 1 Ch. 
 
 73; 70 L. T. 318 - 21 
 Webb v. Direct London and Portsmouth Eailway, 1 De G. M. 
 
 & G. 521 ; 21 L. J. Ch. 337 - 167 
 
 Webb v. Jones, 1 Cox, 245 - 26 
 Webb v. Shaftesbury (Lord), 6 Madd. 100 9, 49 
 
 Webb v. Shaftesbury (Earl), 7 Ves. 480 - 9 
 Webb v.Smith, 55 L.J. Ch. 343; 30 Ch. D. 192; 53 L. T. 
 
 737 - ... ioo 
 Wedderbum v. Wedderburn, 2 Keen, 722 ; afid. 4 II. & Cr. 
 
 41 ; 8 L. J. Ch. 177 ; 3 Jur. 596 - 185 
 
 Wedgwood v. Adams, 6 Beav. 600 159 
 Weeke's Settlement, Ee, 66 L. J. Ch. 179; [1897] 1 Ch. 289; 
 
 76 L. T. 112; 45 W. E. 265 - - -144 
 
 Weir v. Bell, 47 L. J. Ex. 704 ; 3 Ex. D. 238 ; 38 L. T. 929 ; 
 
 26 W. E. 746 - 65 
 
 Weiss v. Dill, 3 M. & K. 26 - - - - - 183 
 Weld Blundell v. Wolselay, 73 L. J. Ch. 45; [1903] 2 Ch. 664; 
 
 89 L. T. 59; 51 W. E. 635 - 214 
 
 Wellbeloved v. Jones, 1 Sim. & St. 40; 1 L. J. (O. S.) Ch. 11 - 11 
 
 Wellesley v. Wellesley, 2 Bli. N. S. 124 - - - 84 
 
 Wentworth v, Wontwoith, 69 L. J. P. C. 13 ; [1900] A. C. 163 - 31 
 
576 
 
 ; [1904] 
 
 
 
 • 
 
 29 
 
 
 - 
 
 209 
 
 ! A. 
 
 0. 506; 
 
 
 
 - 
 
 156 
 
 J. ( 
 
 Jh. 663; 
 
 96 
 51 
 
 53 
 
 1L. 
 
 T. 102 ; 
 
 90 
 
 
 - 
 
 8 
 
 5s.l 
 
 3q. 48 
 
 127 
 
 LIST OF CASES CITED. l xxxv 
 
 PAGE 
 
 West v. Gwynne, 80 L. J. Ch. 578 ; [1911] 2 Ch. 1 - 3, 141 
 West v. Williams, 68 L. J. Ch. 127 ; [1899] 1 Oh. 132 ; 79 L. T. 
 575; 47 W. E. 308 HI 
 
 West Midland Ey. v. Nixon, 1 H. & M. 176 - 208 
 
 Western v. Eussell, 3 Ves. & B. 187 159, 207 
 
 Westminster (Oorpn.) v. St. George's, Hanover Square (Eeotor), 
 78 L. J. Ch. 581 ; [1909] 1 Ch. 592 ; 100 L. T. 546; 25 T. 
 L. E. 393 - - - 193 
 
 Wheeler, Ee, Hankinson v. Hayter, 73 L. J. Oh. 
 
 2 Ch. 66 ; 99 L. T. 227 ; 52 W. E. 586 
 Wheeler v . D'Esterre, 2 Dow, 359 
 Wheeler v. Humphreys, 67 L. J. Ch. 499; [1898] 
 
 78 L. T. 799 ; 47 W. E. 17 - 
 Wheeler's Settlement, Ee, Briggs v. Eyan, 68 L. 
 
 [1899] 2 Ch. 717; 81 L. T. 172; 48 W. E. 10 
 Wheldale v. Partridge, 8 Ves. 227 
 Whistler v. Webster, 2 Ves. jun. 367 - 
 Whitaker, Ee, 58 L. J. Ch. 487 ; 42 Ch. D. 119; 61 
 
 37 W. E. 673 
 Whitbread, Exp., 2 Mer. 99 
 Whitbread v. Jordan, 1 Y. & O. Ex. 303 ; 4 L, 
 Whitbread v. Smith, 3 De G. M. & G. 727 ; 23 L. J. Ch. 611 ; 
 
 18 Jur. 475 ; 2 W. E. 177 ; 2 Eq. E. 377 - 98 
 
 Whitbread & Co. v. Watt, 71 L. J. Ch. 424; [1902] 1 Ch. 835; 
 
 86 L. T. 395 ; 50 W. E. 442 - - 127, 212 
 
 White, Ee, White v. White, 52 L. J. Ch. 232 ; 22 Oh. D. 555 ; 
 
 48 L. T. 151 ; 13 W. E. 451 - - 55 
 
 White v. Parker, 1 Bing. N. C. 573 ; 4 L. J. C. P. 178 ; 1 Scott, 
 
 542; 1 Hodges, 192 - - - 176 
 
 White v. White, 4 Ves. 24 ; 9 Ves. 554 - -181 
 
 Whitehorn Bros. v. Davison, 80 L. J. K. B. 425 ; [1911] 1 K B. 
 
 463 ; 104 L. T. 234 - - 60 
 
 Whitehouse v. Hugh, 75 L. J. Ch. 677 ; [1906] 2 Ch. 283 ; 95 
 
 L. T. 175 ; 22 T. L. E. 679 - - 61 
 
 Whitworth Chemical Co. v. Hardman, 60 L. J. Ch. 428 ; [1891] 
 
 2 Ch. 416 ; 64 L. T. 716 ; 39 W. E. 433 168 
 
 Whyte v. Whyte, 43 L. J. Ch. 104; L. E. 17 Eq. 50; 22 W. E. 
 
 180 - - 155 
 
 Wichalse v. Short, 2 Bro. P. C. 558 120 
 
 Wightwick v. Lord, 6 H. L. O. 217 ; 26 L. J. -Ch. 825 ; 3 Jur. 
 
 N. S. 699 ; 5 W. E. 713 - - - 185 
 
 Wilde v. Gibson, 1 H. L. C. 605 - - - - 61 
 
 Wilder v. Pigott, 52 L. J. Ch. 141 ; 22 Ch. D. 263 ; 48 L. T. 
 
 112; 31 W. E. 377 - - 54 
 
 Wiles v. Gresham, 2 Drew. 258 ; 23 L. J. Ch. 667 ; on appeal, 
 5 De G. M. & G. 770; 24 L. J. Ch. 264; 3 W. E. 87 189 
 
lxxxvi LIST OF CASES CITED. 
 
 PAGE 
 
 Wilkes v. Spooner, 80 L. J. K. B. 1107 ; [1911] 2 K. B. 486 129 
 Wilkins v. Hogg, 3 (Jiff. 116; afld. 31 L. J. Oh. 41 ; 8 Jur. 
 
 N. S. 25 ; 5 L. T. 467 ; 10 W. E. 47 - 194 
 
 Wilkinson v. Clements, 42 L. J. Oh. 38 ; L. E. 8 Oh. 96 ; 27 
 
 L. T. 834 - - - 158 
 
 Wilkinson v. Hall, 3 Bing. N. 0. 508 ; 6 L. J. C. P. 82 ; 4 
 
 Scott, 301 ; 2 Hodges, 56 - - - 118 
 
 Wilkinson v. Joberns, 42 L. J. Oh. 663 ; L. E. 16 Eq. 14; 28 
 
 L. T. 724; 21 W. E. 644 - 135 
 
 Wilkinson v. Wilkinson, 2 Sim. & S. 237 - 184 
 
 Wilks v. Groom, 3 Drew. 584 ; 25 L. J. Ch. 724 ; 2 Jur. N. S. 
 
 681 ; 4 W. E. 697 - - - - 199, 200 
 
 WiUiams, Exp., 2 Coll. 740 - 8 
 
 Williams, Exp., Ee Eaggett, 50 L. J. Oh. 187 ; 16 Oh. D. 117 ; 
 
 44 L. T. 4 ; 29 W. E. 314 - - 122 
 
 Williams, Ee, Williams v. WiUiams, 76 L. J. Ch. 41 ; [1907] 
 
 1 Ch. 180 - - 89 
 
 Williams v. Games, 44 L. J. Ch. 245 ; L. E. 10 Ch. 204 ; 32 
 
 L. T. 414; 23 W. E. 779 - - - - 135 
 
 Williams v. Hunt, 74 L. J. K. B. 364 ; [1905] 1 K. B. 512 ; 
 
 92 L. T. 192 - ... 116 
 
 Williams v. Lomas, 16 Beav. 1 - 145, 190 
 
 Williams v. Owen, 5 M. & Or. 303 ; 12 L. J. Ch. 207 ; 5 Jur. 
 114 - 123 
 
 Williams v. Seott, 69 L. J. P. C. 77 ; [1900] A. C. 499 ; 82 
 
 L. T. 727; 49 W. E. 33 - 178 
 
 Williams v. Williams, 32 Beav. 370 - - 35 
 
 Williams v. Williams, 17 Oh. D. 437 ; 44 L. T. 573 40 
 Williams v. Williams, 36 L. J. Ch. 419 ; L. E. 2 Ch. 294 ; 16 
 
 L. T. 42; 15 W. E. 657 - 45 
 
 Williamson v. Barbour, 50 L. J. Ch. 147; 9 Ch. D. 529; 37 
 
 L. T. 698 - - 20 
 
 Willis v. Barron, 71 L. J. Ch. 609 ; [1902] A. C. 271 - 67 
 Willis v. Howe (Earl), 62 L. J. Ch. 690 ; [1893] 2 Ch. 545 ; 69 
 
 L. T. 358 ; 41 W. E. 433 ; 2 E. 427 - 76, 77 
 
 Wilmot v. Pike, 5 Hare, 14 ; 9 Jur. 839 - 110 
 
 Wilson, Exp., 2 Ves. & B. 252 - 118 
 
 Wilson, Ee, Moore v. Wilson, 76 L. J. Ch. 210 ; [1907] 1 Ch. 
 
 394 ; 96 L. T. 453 - - 31 
 Wilson v. Maddison, 2 T. & C. Ch. 372 ; 12 L. J. Ch. 420 ; 7 
 
 Jur. 572 - - - - 88 
 
 Wilson v. Metcalfe, 1 Euss. 530 - - 124 
 
 Wilson v. O'Leary, 41 L. J. Ch. 342 ; L. E. 7 Ch. 448 ; 26 
 
 L. J. 463 ; 20 W. E. 501 - - - 155 
 
 Wilson v. Parker, 10 Jur. 979 - - - - - 190 
 Wilson v. Short, 6 Hare, 366 ; 17 L. J. Oh. 289; 12 Jur. 301 - 38 
 
LIST OF OASES CITED. lxxxvii 
 
 PAQE 
 
 Wilson v. Thornbury, 44 L. J. Oh. 242 ; L. B. 10 Ch. 239 ; 32 
 
 L. T. 350; 23 W. E. 329 - 53 
 
 Wilson v. Townshend (Lord), 2 Ves. 693 - - 54 
 
 Wilson v. Williams, 3 Jur. N. S. 810 208 
 
 Wilson v. Wilson, 5 H. L. 0. 40 ; 23 L. J. Ch. 697 - 106 
 
 Wilton v. Dunn, 17 Q. B. 471 ; 21 L. J. Q. B. 60 ; 15 Jur. 
 1104- .... 118 
 
 Winchester (Bishop) v. Paine, 11 Ves. 194 - 120 
 
 Wintle, Ee, Tucker v. Wintle, 65 L. J. Ch. 863; [1896] 2 Ch. 
 
 711; 75 L. T. 207; 45 W. E. 91 - - 90 
 
 Wiscot's Case (1599), 2 Co. 60 b - - 103 
 
 Wise v. Perpetual Trustee Company, 72 L. J. P. C. 31 ; [1903] 
 
 A. C. 139; 87 L. T. 569; 51 W. E. 241 - 190 
 
 Withy v. Cottle, T. & E. 78 ; 1 L. J. (O. S.) Ch. 17 - 209 
 
 Wollaston v. King, 38 L. J. Ch. 392 ; L. E. 8 Eq. 165 ; 20 L. T. 
 
 1003; 17 W. E. 641 - - 55 
 
 Wolmershausen v. Gullick, 62 L. J. Ch. 773 ; [1893] 2 Ch. 514; 
 
 68 L. T. 753 ; 3 E. 610 - - 190 
 
 Wombwell v. Haurott, 14 Beav. 143 ; 20 L. J. Ch. 581 - 156 
 
 Worthington v. Wiginton, 20 Beav. 67; 24 L. J. Ch. 773; 
 
 1 Jur. N. S. 1005 ; on appeal, 25 L. J. Ch. 171 ; 1 Jur. N. S. 
 1195; 4 W. E. 40 - - 53 
 
 Wood, Ee, Ward v. Wood, 55 L. J. Ch. 720; 32 Ch. D. 517; 
 
 54 L. T. 932 ; 34 W. E. 788 - - 155 
 
 Wood v. Abrey, 3 Madd. 417 - 58 
 
 Wood v. Midgley, 5 De G. M. & G. 41 ; 23 L. J. Ch. 553 ; 
 
 2 W. E. 301 - - - 5, 64, 163 
 Wood v. Penoyre, 13 Ves. 325 - - - 88 
 Wood v. Eowcliffe, 3 Hare, 304 ; 13 L. J. Ch. 293 ; 8 Jur. 771 ; 
 
 affd. 2 Ph. 382 ; 17 L. J. Ch. 83; 11 Jur. 915 43 
 
 Wood v. Williams, 4 Madd. 186 - 117 
 
 Woodall v. Clifton, 74 L. J. Ch. 555 ; [1905] 2 Ch. 257 ; 54 
 
 W. E. 7; 21 T. L. E. 581 - 49 
 
 Woodward 0. Woodward, 3 De G. J. & S. 672 ; 9 Jur. N. S. 
 
 882 ; 8 L. T. 749 ; 11 W. E. 1007 - 97 
 
 Woodyatt v. Gresley, 8 Sim. 180 188 
 
 Woollam v. Hearn, 7 Ves. 211 - 105, 172 
 
 Woolridge v. Woolridge, Johns. 63 ; 28 L. J. Ch. 689 ; 5 Jur. 
 
 N. S. 566 - - 55 
 
 Woolscombe, Ee, 1 Madd. 213 - 83 
 
 Worley v. Frampton, 5 Ha. 560; 16 L. J. Ch. 102; 10 Jur. 
 
 1092 - - - 180 
 
 Worssam, Ee, Hemery v. Worssam, 51 L. J. Ch. 669 ; 46 L. T. 
 
 584 - - - - 178 
 
 Worthington v. Curtis, 45 L. J. Ch. 249 ; 1 Ch. D. 419 ; 33 
 
 L. T. 828 ; 24 W. E. 221 - - 34 
 
lxxxviii LIST OF CASES CITED. 
 
 1 PAGE 
 
 Worthington v. Morgan, 16 Sim. 547; 18 L. J. Ch. 233; 13 
 Jur. 316 - ... 212 
 
 Wortmngton & Co. v. Abbott, 79 L. J. Ch. 252; [1910] 1 Ch. 
 
 588; 101 L. T. 895 - - - - 116 
 
 Wray v. Steele, 2 Ves. & B. 388 - - - 183 
 
 Wrexham, Mold and Connah's Quay Ey., Ee, 68 L. J. Ch. 270; 
 
 [1899] 1 Ch. 440 ; 80 L. T. 130 ; 47 W. E. 464 - - 191 
 
 Wright v. Carter, 72 L. J. Ch. 138; [If 03] 1 Ch. 27 ; 87 L. T. 
 
 624; 51 W. E. 196 ... 65, 68, 69, 178, 179 
 
 Wright v. Howard, 1 Sim. & S. 190 ; 1 L. J. (O. S.) Ch. 94 207 
 
 Wright v. Tallis, 1 C. B. 893 ; 14 L. J. C. P. 283 ; 9 Jur. 946 - 75 
 Wyllie v. Pollen, 3 De G. J. & S. 596; 32 L. J. Ch. 782; 
 
 9 L. T. 71 ; 11 W. E. 1081 ; 2 N. E. 500 - 110 
 Wyman v. Paterson, 69 L. J. P. C. 32; [1900] A. C. 271; 82 
 
 L. T. 473 - - - 203 
 
 York Union Banking Co. v. Artley, 11 Ch. D. 205 ; 27 W. E. 
 704 - 126, 127 
 
LEADING CASES IN EQUITY. 
 
 Jurisdiction. 
 
 PENM v. BALTIMORE (LORD). (1750) [1] 
 
 [1 Ves. Sen. 444; Bell's Supp. 194; 1 Wh. & T. L. C. 800.] 
 
 The plaintiffs and defendant had entered into a written 
 agreement to fix the boundaries of Pennsylvania and 
 Maryland, the former of which belonged to the plaintiffs 
 and the latter to the defendant, under various grants which 
 were recited in the agreements. The plaintiffs sued the 
 defendant in the Court of Chancery in England to have 
 the agreement specifically performed, and one of the objec- 
 tions taken by the defendant was to the jurisdiction of 
 the Court, but this objection was overruled by Lord 
 Hardwieke, L.C., upon the ground that: " The conscience 
 of the party was bound by this agreement; and being 
 within the jurisdiction of this Court, which acts in. 'per- 
 sonam, the Court may properly decree it as an agreement, 
 if a foundation for it." 
 
 The principle of Perm v. Baltimore ( Lord) does not apply where Jurisdiction 
 the land is situate in a country which is not subject to the British * n aspect t0 
 Crown (a) ; and the tendency of modern cases is to restrict rather 
 than enlarge the limits within which the jurisdiction will be 
 exercised (b). 
 
 (a) Re Hawthorne, Graham v. Eastern Concessions, Ltd. (1899), 79 
 
 Massey (1883), 52 L. J. Ch. 750 ; 23 L. T. 658 ; Besehamps v. Miller 
 
 Ch. D. 743. (1908), 77 L.J. Ch.416; [1908] 1 
 
 (£) Black JPoint Syndicate v. Ch. 856. 
 
 K. B 
 
LEADING OASES IN EQUITY. 
 
 Mortgage of 
 land situate 
 abroad. 
 
 Application 
 of the lex loci. 
 
 Contracts. 
 
 The grounds upon which the principle rests is, perhaps, best 
 illustrated by Carteret v. Petty (c). The plaintiff in that case filed 
 a bill in England for an account of waste committed in respect of 
 lands in Ireland, and for a partition of the same lands ; Lord 
 Nottingham allowed the action to proceed as regards the account 
 for waste, but stayed it as regards the claim for a partition. The 
 learned judge founded himself upon this, that as the defendant 
 was within the jurisdiction the Court could, by imprisonment, 
 compel him to obey a decree for an account, but a decree for a 
 partition could only be worked out by invoking the assistance of 
 persons resident out of the jurisdiction of the Court, and not 
 amenable to its process, and whose submission to the jurisdiction 
 could not be enforced by imprisoning the defendant. Thia distinc- 
 tion was borne in mind by Lord Hardwicke in Perm v. Baltimore 
 (Lord) in framing the decree, as is pointed out by Stirling, J., in 
 Black Point Syndicate v. Eastern Concessions, Ltd. (d). 
 
 A mortgage of land presents a double aspect, being at once a 
 personal contract as regards the liability to pay the money lent, 
 and conferring rights in rem (e). The right of a mortgagor to 
 redeem, and the terms upon which he may redeem, may therefore 
 be regulated by the principles of equity as administered in an 
 English Court (/). 
 
 The possession of a jurisdiction is one thing, its exercise is 
 another. Where the adjudication of the Court involves inter- 
 ference with the proprietary incidents of land situate out of the 
 jurisdiction, it will apply the rules of law in force in the country 
 where the land is situate (g). 
 
 In the case of contracts relating to matters other than land, the 
 Court will grant equitable remedies against a defendant within 
 the jurisdiction to prevent a breach out of the jurisdiction of the 
 stipulations therein contained (7i). It is beyond the scope of this 
 work to discuss the difficult questions of international law which 
 arise in respect of contracts. 
 
 (c) Carteret v. Petty (1676), 2 
 Swanst. 323, n. See Batihyanv v. 
 Walford (1887), 56 L. J. Ch. 881 ; 
 36 Ch. D. 269. 
 
 (d) Black Point Syndicate v. 
 Eastern Concessions, Ltd, (1899), 79 
 L. T. 658. 
 
 (e) See tit. Mortgage, post, 
 p. 107. 
 
 (/) British South Africa Co. v. 
 I)e Beers Consolidated Mines (1910), 
 80 L. J. Ch. 65; [1910] 2 Ch. 
 502 ; revd. on other grounds, [1912] 
 A. C. 52. 
 
 (g) Nelson (Earl) v. Bridport 
 (lord) (1846), 8 Beav. 527 ; IVater- 
 house v. Slaw-field (1851), 9 Ha. 
 2.44 ; (1852), 21 L. J. Ch. 881 ; 
 10 Ha. 254 ; Harrison v. Harrison 
 (1873), 42 L. J. Ch. 495; L R. 
 8 Ch. 342. See Re Piercn, Whit- 
 u/iam v. Piercy (1894), 64 L. J. Ch. 
 249; [1895] 1 Ch. 8 i, where the 
 question u as embarrassed by the 
 equitable doctrine of conversion. 
 
 (h) Nordenfehlt v. Maxim Sorden- 
 feldt Guns a>-d Ammunition Co. 
 (Ib91), 63 L. J. Ch. 908; [1894] 
 A. C. 535. 
 
JURISDICTION. j 
 
 The Court cannot restrain a defendant -within the jurisdiction Torts, 
 from committing a tort without the jurisdiction (i). 
 
 The Court of Chancery also exercised a jurisdiction to restrain Restraining 
 ■the defendant proceeding -with an action at law in which he was proceedings 
 plaintiff ; but this jurisdiction has been abolished by the Judicature ^^i s di c tion 
 Act, 1873, s. 24, which permits the matter which would have given 
 title to equitable relief to be raised by way of defence (k). 
 
 The Court of Chancery — and the same rule obtained respecting pi ea to the 
 the superior Courts at Westminster — was presumptively a Court of jurisdiction, 
 unlimited jurisdiction. It followed that a person who objected to 
 the jurisdiction had to give some other Court by which the matter 
 could be tried, failing this, his plea was informal and disallowed (I). 
 
 An objection to the jurisdiction of the Court of Chancery might Submission 
 be waived, as by entering an unconditional appearance (to). *° . f . . 
 
 The Court of Chancery, and subsequently the High Court, did ' 
 not make declarations of right unless consequential relief was or i u( jgment. 
 might be claimed (»). But the Court has, by force of Ord. XXV. 
 r. 5, of the Eules of the Supreme Court, 1883, jurisdiction to make 
 an order in this behalf (o). A party seeking a declaratory judgment 
 only may, in a proper case, be awarded costs (p). 
 
 ATT.-GEN. v. MANCHESTER & LEEDS [2] 
 
 RAILWAY CO. (1839) 
 [3 Jur. 379 ; 1 Ey. Cas. 436.] 
 The defendant company, to stay the granting of an 
 interlocutory injunction to restrain the construction of 
 
 (i) "Morocco Sound" Syndicate English Courts, which was the 
 
 v. Harris (1*95), 64 L. J. Ch. 4u0 ; order then of right in an adminis- 
 
 [1895] 1 Ch. 5B4. See Fuhigas v. tration action where a residuary 
 
 Mostyn (1775), 1 Cowper, 161 ; legatee was plaintiff, has since been 
 
 Shirley's L. C. 634 ; Carr v. Fracis, nullified by an alteration in the 
 
 Times # Co. (1901), 71 L. J. K. B. practice of the Court. See Rules of 
 
 361 ; [1W02] A. C. 176. the Supreme Court, 1883, Ord. LV. 
 
 (k) See Oxford's [Earl) Case r. 10. And see Ewing v. (Jrr- 
 
 (1615), 1 Ch. Rep. 1 ; 1 Wh. & Ewing (1885), 10 App. Cas. 465. 
 T. L. C. 773 ; Garbutt v. Faweus (n) Loxv. Barker (1876), 3 Ch. D. 
 
 (1875), 45 L. J. Ch. 133; 1 Ch. 359. See^asif, p. 92. 
 1). 155. (o) Chapman v. Michaelson (1908), 
 
 (I) Carnatie (Nabob) v. East India 78 L. J. Ch. 272; [1909] 1 Ch. 
 
 Co. (1191). 3 Bro. C. C. 292; 1 238; Dyxon v. Att.-Gen. (1910), 
 
 Ves. Jr. 371. 80 L. J. K. B. 531 ; [1911] 1 K. B. 
 
 (m) Ewing v. Orr-Ewing (1883), 410; West v. Guyrme (1911), 80 
 
 53 L. J. Ch. 435 ; 9 App. Cas. 34. h. J. Ch. 578 ; [1911] 2 Ch. 1. 
 The objection to the judgment in (p) West v. Guynne (1911), 80 
 
 this case, namely, the administra- L. J. Ch. 578 ; [1911] 2 Ch. 1. 
 tion of Scotch estates by the 
 
 b2 
 
4 LEADING GASES IN EQUITY. 
 
 their lino over a public thoroughfare, gave an undertak- 
 ing " to remove all works and erections upon or over any 
 portion of the said street, as the Court shall direct at 
 any future time." The company subsequently promoted 
 a Bill in Parliament which contained a clause which would' 
 have nullified this undertaking. Lord Cottenham, L.C., 
 regarded this as " a direct violation of the undertaking "; 
 but declined to exercise a jurisdiction to restrain parties 
 from applying to Parliament. 
 
 Jurisdiction The foregoing has been chosen as the strongest authority that 
 
 aDDlfctio 1 & t cou ^ be found, by reason of the bad faith shown by the defendants. 
 
 Parliament. It has been asserted judicially that the Court of Chancery had 
 jurisdiction to restrain a defendant from applying to the Legislature, 
 but this declaration has been qualified by the statement that it 
 is difficult to conceive a case in which such a course could be 
 adopted (q). 
 
 Suspension of In granting an injunction to restrain a party from committing a 
 
 ordertoenable wror ,n'f u l act, the Court sometimes directs the operative part of its 
 
 amplication to , , , ,.„,,. 
 
 be made to order to be suspended with the express object of enabling an 
 
 Legislature. application to be made to Parliament to relieve the defendant from 
 
 obeying the order (r). And upon the same principle, an order was 
 
 suspended to enable an application to be made to the local authority 
 
 to sanction the continuance of a, building erected in contravention 
 
 of a statute (s). 
 
 [3] CURTIS v. PERRY. (1802) 
 
 [6 Ves. 739.] 
 A partnership purchased and registered some ships in 
 the name of one of the partners (Nantes). This ^Yas done 
 to shield the other partner (who was a member of Par- 
 liament) from statutory penalties, which would have been 
 
 (<?) Steele v. N. Metropolitan St/. Tame $ Sea Dist. Drain. Bd. (1908), 
 
 (1867), 36 L. J. Ch. 540 ; L. R. 77 L. J. Ch. 836 ; [1908] 2 Ch. 
 
 i Ch. 237; Ex parte Bartridge % 651. 
 
 Allender (1869), L. R. 5 Ch. 671. (s) Alt.-Gen. v. Metcalf (1908), 
 
 (r) SeeAtt.-Oen. v. Leeds (Corp.) 77 L. J. Ch. 261 ; [li>08] 1 Ch. 
 
 (1870). 39 L. J. Ch. 711 ; L. R. 5 327. 
 Ch. 583 ; Att.-Gen. v. Birmingham, 
 
JURISDICTION. 5 
 
 incurred in respect of ships employed in the service of 
 the Government. After the death of the stealthy member 
 of Parliament, the firm became bankrupt. The joint 
 creditors of the firm claimed the ships as assets of the 
 firm to be administered in the bankruptcy, and their right 
 was contested, and the ships claimed by the separate 
 creditors of Nantes as being his sole property. Lord 
 Eldon, L.C., gave effect to the latter contention, hold- 
 ing that the statute then in force was obligatory, and 
 conferred the absolute property on the registered owner 
 discharged from all trusts. 
 
 Although, this case is complicated by the fraud of the partners it Relief against 
 is usually referred to by reason of Lord Eldon's exposition of the non-com- 
 statute there in question. In Hughes v. Morris if), the Court | statute" 
 refused to grant specific performance of a contract in 'writing -which 
 did not comply with the provisions of the Merchant Shipping Act, 
 1845, which has beon since repealed. Under the Merchant Shipping 
 Act now in force equitable interests are recognized as between the 
 immediate parties who create the interest, or in whose favour the 
 interest is created ; but a purchaser who has notice of that interest 
 may disregard it, if he clothes himself with a legal title by complying 
 with the statutory requirements as to form and registration («). 
 And non-compliance with the provisions of the Fines and Recoveries 
 Act, 1833, would confer a defeasible interest upon the alienee, 
 although in this case there might be a right of action against the 
 alienor to make a fresh conveyance (as). 
 
 It would seem that while the earlier Registry Acts were in force, Fraud, 
 if the alienee were prevented by the fraud of the alienor from 
 complying with the provisions of the statute the Court would have 
 granted relief (y). And a person who fraudulently induced another 
 to abstain from complying with the provisions of the Statute of 
 Frauds, now represented by the Wills Act, 1837, would not have 
 been allowed, in a Court of Equity, to reap the benefit of his 
 fraud (z). 
 
 (t) Hughes v. Morris (1852), 21 Ves. 626. See Thompson v. Smith 
 
 L. J. Ch. 761 ; 2 De a. M. & G-. (1815), 1 Madd. 395. 
 
 349. (z) Montacute [Viscountess) v. 
 
 (a) Black v. Williams (1894), 64 Maxwell (1720), 1 P. Wms. 616 ; 
 
 L. J. Ch. 137 ; [1895] 1 Ch. 408. Wood v. Midgley (1854), 23 L. J. 
 
 (x) Bankes y. Small (1887), 56 Ch. 553 ; 5 De G. M. & G-. 41. 
 
 L. J. Ch. 832 ; 36 Ch. D. 716. SeeDevenish v. Baines (1689), Prec. 
 
 (y) Mestaery. Gillespie (1804), 11 Ch. 3. 
 
LEADING CASES IN EQUITY. 
 
 Mistake. 
 
 Statute of 
 Frauds : 
 part perform- 
 ance. 
 
 Statute of 
 Limitations. 
 
 Relief cannot be had in equity for non-compliance ■with, the terms- 
 of a statute by making out a case of mistake (a). 
 
 The equitable doctrine of part performance in the case of contracts 
 relating to land furnishes an apparent exception to the foregoing 
 principles. The subject will be discussed hereafter under the 
 headings " Mortgage" and " Specific Performance." 
 
 The effect of a concealed fraud in enabling a party to avoid the 
 effect of the Statute of Limitations is discussed hereafter (6). 
 
 [4] IN RE WHITAKER (a person of unsound mind). 
 
 (1889) 
 
 [42 Oh. D. 119; 58 L. J. Ch. 487; 61 L. T. 102; 37 W. E. 673.] 
 
 After the death of a Mr. Liddell, an unexecuted docu- 
 ment in his own handwriting was found among his papers . 
 If he had not been prevented by sudden death from carry- 
 ing out his intention to execute 'the document as a will, 
 a Mr. Holden would have benefited to the extent of nearly 
 400,000Z. A properly executed will was found, and under 
 it Mr. .Whitaker became the possessor of this large 
 sum of money. He recognized, however, that Mr. Holden 
 had a moral claim to his bounty, and gave him a pro- 
 missory not© for 50,000L, which he 'proposed to pay off 
 by instalments. He had paid 15,000£. on account, when 
 he became of unsound mind and was so found by inquisi- 
 tion. The promissory note was valueless in the sense 
 that it could not have been sued upon by Mr. Holden 
 in a Court of law, but the Court (Cotton and Lindley, 
 L.J J.) sitting in lunacy allowed the balance of 35,000£. 
 to be paid out of funds in Court belonging to Mr. 
 Whitaker, and which, although but part of his property, 
 amounted to upwards of 177,000Z. The principle is thus 
 
 (a) Thompson v. Leake (1815), 1 
 Madd. 39. 
 
 (4) Gibbs v. Guild (1882), 51 
 
 L. J. Q. B. 313 ; 9 Q. B. D. 50 ; 
 post, p. 76. 
 
JURISDICTION. 7 
 
 stated by Cotton, L.J.: the Court has jurisdiction to give 
 out of the personal estate of a lunatio " that which is 
 mere bounty on his part when we see that it is in accord- 
 ance with his views and his declarations before he became 
 a lunatio." 
 
 It will be convenient to deal -with the exercise of another branch Paterna.. 
 of the paternal jurisdiction, which is exercised in the case of infants, J uris< iiotion. 
 in which case similar considerations are applied, although the two 
 branches offer some points of distinction. It is not proposed to do 
 more than glance at the jurisdiction in lunacy, which is a very 
 special subject. The king was entitled to the custody of the pro- 
 perty of lunatics as parens patriae, and an additional reason may 
 be found in the fact that as the lunatic was unable to perform the 
 feudal duties in return for his land, the Crown, as lord paramount, 
 could resume possession. The Crown was not bound to delegate 
 the management to the Lord Chancellor, and the warrant of the 
 Crown conferred no jurisdiction, but only a power of administra- 
 tion ; and the only limit on the power of the Crown was the 
 statutory provision for a provident management (c). The matter 
 is now regulated by the Lunacy Act, 1890. Cases relating to 
 lunatics and wards of Court may be heard in camera (d). 
 
 The first duty of the Court is the maintenance of the lunatic out Maintenance : 
 of income or capital, and this will be done, if necessary, so as to oat °$ what 
 postpone or exclude the rights of his creditors to payment after the p " ^ ' 
 Crown has taken possession of the property (e). In the case of an 
 infant the right to maintenance is usually dependent upon the 
 provisions of a deed or will ; and where a maintenance clause fixes 
 a sum and directs the surplus income to bo accumulated, the Court 
 may exceed the sum so fixed if a special case be made justifying 
 the increase, unless there be additional words restricting the right to 
 exceed the allowance^/). The same rule applies in lunacy (g) ; but 
 
 (c) Ozenden v. Compton (Lord) kith (1893), 62 L. J. Ch. 993; 
 (1793), 2 Ve». Jr. 69 ; Exp. Phillips [1893] 3 Ch. 332 ; Be Clvrke (1H98), 
 (1812), 19 Ves. 118 ; Sherwood v. 67 L. J. Ch. 234 ; [1898] 1 Ch. 336. 
 Sanderson (1815), 19 Tos. 280. See (/) Re Walker, Walker v. Dim- 
 He Edwards (1879), 48 L. J. Ch. combe (1901), 70 L. J. Ch. 417; 
 233 ; 10 Ch. D. 605. [1901] 1 Ch. 879. See Tabor v. 
 
 (d) Andrew t. Raelurn (1874), Brooks (1878), 48 L. J. Ch. 130 ; 10 
 L. R. 9 Ch. 522. Ch. D. 273. 
 
 (e) Davies v. Davies (1852), 21 (?) liudland v. Crazier (185S), 27 
 L. J. Ch. 419 ; 2 De G. M. & G. L. J. Ch. 261 ; 2 De G. & J. 143. 
 51 ; He Fink (1883), 52 L. J. Ch. See Gisborne v. Gisborne (1377), 43 
 674 ; 23 Ch. D. 577 ; Re Flender- L. J. Ch. 556 ; 2 App. Cas. 300. 
 
LEADING CASES IN EQUITY. 
 
 Two funds. 
 
 Past 
 maintenance. 
 
 Bounty. 
 
 in the case of an infant entitled to capital, the Court may resort to 
 that, if the income be not sufficient (h). 
 
 In applying the property of an infant, or of a lunatic, towards 
 his maintenance, the Court, as a general rule, has regard only to his 
 interest. Accordingly, where an infant or a lunatic is entitled to 
 two funds, maintenance will be directed out of that which is the 
 more beneficial to the infant (i) or the lunatic (h). 
 
 Where an infant (I) or a lunatic (m) has been maintained by a 
 third person, and afterwards becomes entitled to property, the Court 
 will sometimes sanction the past expenditure being recouped, but a 
 special case must be made to obtain this allowance. 
 
 An allowance will be made sufficiently large, if necessary, to 
 enable a portion of it to be applied in the support of indigent 
 parents, descendants, or relatives, or of dependants for whom it is 
 customary to make provision, as in the case of a superannuated 
 servant («). The jurisdiction is one to be exercised with caution (o), 
 and will be more readily exercised in the case where a lunatic is 
 entitled to land, and the person to be benefited is heir, than in the 
 case of a claim by the next of kin to be maintained out of personal 
 estate (p). There is also j urisdiction to make an order for main- 
 tenance so as to relieve indirectly the father of his natural duty to 
 maintain his children (q). In lunacy, the Court has sanctioned a 
 contribution out of the lunatic's estate towards the building of a 
 church and parochial schools (r). And in the case of an infant the 
 Court has sanctioned annual payments in support of local chari- 
 
 (h) Bridge v. Brown (1S43), 2 
 Y. & C. CI. 181 ; Exp. Ha«s (1349), 
 18 L. J. Ch. 441 ; 3 De G. & Sm. 
 485. 
 
 (i) Foljambev. Willoughby (1824), 
 2 Sim. & S. 165 ; Bruin v. Knott 
 (1845), 14 L. J. Ch. 440; 1 Ph. 
 572. 
 
 (k) Methold v. Turner (1851), 20 
 L. J. Ch. 201 ; 4 I>e G-. & S. 249 ; 
 Me Weaver (1882), 21 Ch. D. 616. 
 
 (I) Exp. Bond(l$3i), 4 L. J. Ch. 
 84; 2 M. & K. 439; Stopford v. 
 Canterbury (Lord) (1840), 11 Sim. 
 82 ; Carmiehael v. Hughes (1851), 
 20 L. J. Ch. 396. 
 
 (m) Edwards v. Abrey (1846), 15 
 L. J. Ch. 401 ; 2 Ph. 37 ; lie Law 
 (1861), 30 L.J. Ch. 512. 
 
 (n) Exp. Whitbread (1816), 2 
 Mer. 99 ; Allen v. Coster (1839), 
 
 9 L. J. Ch. 131 ; 1 Beav. 202 ; Re 
 Carysfort (Earl) (1840), Cr. & P. 
 76 ; He Frost (1870), 39 L. J. Ch. 
 808 ; L. P. 5 Ch. 699. 
 
 (o) Re Stables (1852), 21 L. J. Ch. 
 
 620; Re Evans (1SS:1), 21 Ch. D. 
 297. 
 
 (p) Re Darling (1SSS), 57 L. J. 
 Ch. 891 ; 39 Ch. D. 2i,8. 
 
 (g) Jervoise v. Silk (1813), G. 
 Coop. 52 ; Re Drummond (1836), 6 
 L. J. Ch. 58; 1 M. & Cr. 627; 
 Exp. Williams (1846), 2 Coll. 740. 
 See, in the case of a mother sur- 
 viving' the father, Douglas v. 
 Andrews (1849), 19 L.J. Ch. 69; 
 12 Beav. 310 ; Barnes v. Ross, 
 [1896] A. C. 623. 
 
 (••) Re Strickland (1871), L. R. 
 6 Ch. 226. 
 
JURISDICTION. 9 
 
 ties (s). The Court has also sanctioned, a remission of rents in a 
 proper case (<). 
 
 In managing the estate of lunatics and infants, the Court seeks to Management 
 act as would an absolute owner, but safeguarding their interests, of estate. 
 which is the paramount right. Thus, where an infant was entitled 
 to large landed estates, the trustee was not required to shoot off all 
 the game, but at the same time he was not allowed to keep up a 
 shooting for his own benefit, but an inquiry was directed as to what 
 course should be adopted with reference to the appointment of a 
 gamekeeper to preserve the game, and whether the liberty of 
 sporting could be let for the benefit of the infant (u). 
 
 In managing the estate of a lunatic the Court may change the 
 character of the property, but will not do so as a general rule ; and 
 the next-of-kin and the real representatives have no equity to have 
 the status quo restored (as). On the other hand, in the case of an 
 infant it is the invariable practice not to change the character of 
 the property so as to alter the course of devolution (y). "Where 
 land is sold in a partition action, express provision is made by 
 statute that the proceeds retain their character of realty (z). 
 
 It may be convenient to note here that the committee of the estate Aceounta- 
 of a lunatic, or a guardian, is not accountable upon the footing bllityof 
 that he is a trustee of the moneys paid over to him ; he can discharge f egfate and 
 himself by showing that he has substantially complied with his guardian, 
 duty to maintain the lunatic or infant (a). 
 
 Where the proprietary interests of an infant are concerned, it is Giving infant 
 not usual to make an order binding upon him without giving him a da y to 
 an opportunity of showing cause against the order after he has 
 come of age (J). In some cases it is obvious what is for the benefit 
 of the infant, and an order will be made binding his interest as in 
 
 (s) ZanytonY.Brackenbury {18i6), Vea. 257 ; Exp. Phillips (1812), 19 
 
 15 h. J. Ch. 256 ; 2 Coll. 446 ; Ves. 118 ; Webb v. Shaftesbury 
 
 Re Walker, Walker v. Buncombe {Lord) (1821), 6 Madd. 100. 
 
 (1901), 70 L. J. <Jh. 417 ; [1901] (z) Re Norton, Norton v. Norton 
 
 1 Ch. 879. ~ (1899), 69 L. J. Cn. 31 ; [1901] 1 
 
 (t) Menniker v. Chafy (1855), 3 Ch. 101 ; post, p. 134. 
 
 ~W. R. 3u0. (a) Leach 7. Leach (184S), 13 Sim. 
 
 iu) Webb v. Shaftesbury {Earl) 304 ; Jodrell v. Jodrell (1851), 14 
 
 (1802), 7 Ves. 480. Beav. 397; Re French (1868), 37 
 
 {x) Oxenden v. Compton {Lord) L. J. Ch. 537 ; L. R. 3 Ch. 317 ; 
 
 (1793), 2 Ves. Jr. 69; Re Smith Re E cans, Welch y. Ghannell (1884), 
 
 (18 U), L. R. 10 Ch. 79 ; Re Ryder 53 L J. Ch. 7C9 ; 26 Ch. D. 58 ; 
 
 (1882), 20 Ch. D. 514 ; Sarthy v. Strangwayes v. Read (1898), 67 
 
 Pendarves (1901), 70 L. J. Ch. 745 ; L. J. Ch. 581 ; [lb98] 2 Ch. 419. 
 
 [1901] 2 Ch. 498; Re Gist (1904), {b) Streatfeldv. Streatfield {17 3G), 
 
 73 L. J. Ch. 251; [1904] 1 Ch. Caa. t. Talb. 176; post, p. 52; 
 
 398. Mellor v. Porter {1883), 53 L. J. Ch. 
 
 {y) Ware v. Polhill (1805), 11 178; 25 Ch. D. 158. 
 
10 
 
 LEADING OASES IN EQUITY. 
 
 the case of an election (c). In the case of a sale of the property of 
 an infant, where there is no order upon him to execute a convey- 
 ance, a day to show cause need not be given (d). 
 
 [5] MOGGRIDGE v. THACKWELL. (1792, 1802, 1807) 
 [3 Bro. C. 0. 517; 1 Ves. Jr. 464; 7 Ves. 36; 13 Ves. 416.] 
 The testatrix made a residuary bequest desiring the 
 legatee " to dispose of the same in such charities as he 
 shall think fit, recommending poor clergymen who have 
 large families and good characters." The residuary 
 legatee was held to be a trustee, and the gift was estab- 
 lished as a charitable trust. The ground upon which the 
 jurisdiction of the Court rests is thus stated by Lord 
 Eldon, L.C.: "where there is a general indefinite pur- 
 pose, not fixing itself upon any object, the disposition 
 is in the King by sign manual: but where the execution 
 is to be by a trustee with a general or some objects pointed 
 out, there the Court will take the administration of the 
 trust." 
 
 Administra- 
 tion by sign 
 manual. 
 
 Administra- 
 tion by the 
 Court. 
 
 In Cary v. Abbot (e), the testator made a bequest in trust "for 
 the purpose of educating and bringing up poor children in the 
 Roman Catholic faith." This trust was created prior to the removal 
 of the disabilities of Eoman Catholics, and was accordingly illegal. 
 The bequest was treated as falling within the first branch of the 
 rule stated by Lord Eldon, and consequently as disposable by the 
 King by sign manual. 
 
 The jurisdiction of the Court of Chancery to administer trusts 
 under the second branch of the rule arose after the passing of the 
 Charitable Trusts Act (43 Eliz. c. 4), which defined for the first 
 time what were charitable objects (/). Although this statute is 
 
 (c) Cooper v. Cooper (1874), 44 
 L. J. Ch. 6 ; L. B. 7 H. L. 53 ; 
 Be Montagu, Faber v. Montagu 
 (1896), 65' L. J. Ch. 372 ; [1896] 
 1 Ch. 549. 
 
 (d) Hutton v. Maync (1846), 3 
 
 Jo. & fiat. 586. 
 
 (e) Cary v. Abbot (1802), 7 Ves. 
 490. 
 
 (/) Att.-Gen. v. Sawyer (1798), 
 3 Ves. 714, 726. 
 
JURISDICTION. H 
 
 repealed, only those objects -which are therein defined as charitable 
 are to be so regarded (g). Charitable purposes are thus defined : — 
 The relief of aged, impotent and poor people ; 
 The maintenance of sick and maimed soldiers and mariners ; 
 The maintenance of schools of learning, free schools and 
 scholars in universities ; 
 
 The repair of bridges, ports, havens, causeways, churches, 
 sea banks and highways ; 
 The education and pref erment of orphans ; 
 The relief, stock and maintenance of houses of correction ; 
 The marriages of poor maids ; 
 
 The supportation, aid and help of young tradesmen, handy- 
 craftsmen and persons decayed ; 
 
 The relief or redemption of prisoners or captives (A) ; 
 The aid or ease of any poor inhabitants concerning payment 
 of fifteenths, setting out of soldiers and other taxes. 
 In the case of a gift in which charitable purposes and other 
 purposes of an indefinite character are mixed up, if the Court 
 cannot ascertain, as a matter of construction, what portion is to be 
 devoted to charity, the whole gift fails (?'). It is not within the 
 province of an elementary work like the present to discuss what 
 gifts have, and what have not been held to amount to a charitable 
 gift, and an imperfect discussion of the subject could only be 
 misleading. 
 
 The Crown is entitled, as parens patriae, to have a voice in the Interest of 
 administration of a charitable trust and must be represented by the Crown. 
 Attorney-General in all informations ; but if a gift is made to a 
 charity already established as part of its general funds, the 
 Attorney-General need not be represented, as there is no adminis- 
 tration required (7c). And where a summary procedure was sub- 
 stituted to avoid, in simple cases, the costly process by information, 
 the Court required the Attorney-General to be made a party (I). 
 
 The supervision of charities is now vested by statute in a body Jurisdiction 
 known as the Charity Commissioners (ro), and their consent is a of the Charity 
 
 (g) Mortmain and Charitable Sim. & St. 40 ; Sons of the Clergy 
 
 Uses Act, 1888, s. 13, sub-s. (2) ; (Corp.) v. Mose (1839), 9 Sim. 610 ; 
 
 Income Tax Commrs. v. Pemsel Att.-Gen. v. Worcester (Bp.) (1851), 
 
 (1891), 61 L. J. Q. B. 265 ; [1891] 21 L. J. C. 25 ; 9 Ha. 328. 
 A. C. 531 ; He Macduff, Macduff -v. (I) Att.-Gen. v. Stamford (Earl), 
 
 Macduff (1896), 65 L. J. Ch. 700 ; 10 L. J. C. 58 ; 1 Ph. 737. 
 [1896] 2 Ch. 451. (m) See Re Clergy Orphan Corp. 
 
 (h) Thrupp v. Collett (1858), 26 (1894), 64 L. J. Ch. 66; [1894] 3 
 
 Beav. 125. Ch. 145 ; Re Gilchrist Charity 
 
 (i) Hunters. Att.-Gen. (1899), 68 (1895), 64 L. J. Ch. 298; [1895] 
 
 L. J. Ch. 449 ; [1899] A. C. 309. 1 Ch. 367. 
 
 (k) Wellbeloved v. Jones (1822), 1 
 
12 
 
 LEADING CASES IN EQUITY. 
 
 Commis- 
 sioners. 
 
 Application 
 of enhanced 
 values. 
 
 Application 
 ey-prh. 
 
 necessary preliminary to any legal proceeding affecting the adminis- 
 tration of a charity (ra). 
 
 It sometimes happens that the value of property devoted to 
 charity increases, and where several are interested in the property, 
 the question arises "what shall be done with the surplus. This is 
 entirely a question of construction. Where property is devoted to 
 several charities and is so apportioned between the various objects 
 that it exhausts the income, each object shares proportionately in 
 the increase (o). If property is given charged with payments in 
 favour of the charity, it is a question of construction whether the 
 donee or the charity is entitled to participate in the surplus (p). 
 The heir is not entitled to participate in the increased rents upon 
 the doctrine of a resulting trust (q). 
 
 Where the particular objects for which a charity is established 
 fail, but there are others of a similar character, it is the practice of 
 the Court to apply property in a manner which will best answer the 
 intention, actual or presumed, of the founder. This is known as 
 the doctrine of cy-pres, analogous to, but not to be confounded with 
 a s imil ar phrase used in connection with powers (r). In some cases 
 the scheme is settled by the Charity Commissioners (s). 
 
 [6 i FORMAN v. HOMFRAY. (1813) 
 
 [2 Yes. & B. 329.] 
 
 In this case one partner filed a bill against his co-partn,er 
 praying that an account might be taken of the co-partner- 
 ship [dealings, and for other relief, but not praying a 
 dissolution of the partnership. Upon a motion by the 
 plaintiff that the defendant might be ordered to pay a 
 
 (n) Braandv. Devon {Earl) (1867), 
 L. E. 3 Ch. 800; Bast/mo v. Bradley 
 (1896), 65 L. J. Q. B. 479 ; [1896] 
 1 Q. B. 645. 
 
 (fi) Beverley (Corp.) v. Att.-Gen. 
 (1857), 27 L. J. Ch. 66 ; 6 H. L. C. 
 310. 
 
 (p) Att.-Gen. v. Windsor (Dean 
 and Canons) (1861), 30 L. J. Ch. 
 529 ; 8 H. L. C. 369 ; Merchant 
 Taylors' Co. v. Att.-Gen. (1871), 40 
 L. J. Ch. 546 ; L. R. 6 Ch. 512. 
 
 (q) Att.-Gen. v. Bristol (Corp.) 
 
 (1818), 3 Madd. 319 ; affid. (1820), 
 2 J. & W. 294 ; Att.-Gen. v. 
 Wilson (1834), 3 L. J. Ch. 126; 
 3M.4K. 362. 
 
 ()•) Ironmongers' Co. v. Att.-Gen. 
 (1844), 10 CI. & F. 908. See post, 
 p. 146. 
 
 (s) Be Sutton Coldjield Grammar 
 School (1881), 51 L. J. P. C. 8; 7 
 App. Cas. 91. See Be Myde Park 
 Blace Charity (1911), 80 L. J. Ch. 
 593; [1911] 1 Ch. 678. 
 
JURISDICTION. 13 
 
 sum of money into Court, Lord Eldon, L.C., "observed 
 the inconvenience, that, if a partner can come here for an 
 account merely, pending the partnership, there seems 
 nothing to prevent his coming annually." He refused 
 the motion . 
 
 There are many subsequent cases in which the same principle 
 has been applied, but in none is the ground upon which the Court 
 proceeds put so tersely as in the leading case. There is ample 
 jurisdiction to grant relief without requiring a dissolution. In one 
 case inconvenience would have been caused if the Court had dis- 
 solved the partnership (t). So a partner will be restrained by 
 injunction from acting in breach of the partnership articles (u). 
 Again, persons who have sought to force a dissolution before the 
 end of the term have "found that the rule of convenience was sub- 
 servient to substantial justice (x). The law of partnership has been 
 codified by the Partnership Act, 1890, and the student is referred 
 to Shirley's Leading Cases, at p. 87, and also to the statute for the 
 general law of partnership. 
 
 The Court does not interfere with the internal management of a Administra- 
 joint stock company (y) ; but it can, and does, restrain acts which tion of 
 are ultra vires (z). There is jurisdiction to wind up companies ^ 
 by force of the Companies (Consolidation) Act, 1908. 
 
 It is sometimes necessary, in administration proceedings, to carry Appointment 
 on a business with a view to its disposal as a going concern, and °* manager, 
 this is usually attained by appointing a person as manager. This 
 course is adopted because the Court has not the proper machinery 
 for undertaking and performing this duty (a). A manager is not 
 appointed with a view to carry on a partnership business under the 
 supervision of the Court, but merely as a provident act to safe- 
 guard the partnership property in the interval, pending the final 
 disposal of the proceedings (6) ; and the manager must carry on the 
 
 (t) Walhvorth v. Bolt (1S41), 4 L. E. 20 Eq. 669; North- West 
 
 M. & Cr. 619. Transportation Co. v. Bealty (1887), 
 
 (w) Watney v. Trist (1876), 45 66 L. J. P. C. 102; 12 App. Can. 
 
 L. J. Ch. 412. 589. See Burland v. Marie (1901), 
 
 (x) Fairthorne v. Weston (1844), 70 L. J. P. C. 1 ; [190^] A. C. 83. 
 13 L. J. Ch. 263 ; 3 Ha. 387. (z) Colmanv. Eastern Counties Ry. 
 
 (y) Foss v. Earboltle (1843), 2 (18*6), 16 L. J. Ch. 73 ; 10 Beav. 1. 
 Ha. 461 ; Menier v. Hooper's Tele- (a) Evans t. Coventry (1854), 3 
 
 graph Works (1874), 43 L. J. Ch. Drew. 75. 
 
 330 ; L. K. 9 Ch. 350 ; Cannon v. (b) Ball v. Ball (1850), 20 L. J. 
 
 Trash (1875), 44 L. J. Ch. 772 ; Ch. 685 ; 3 Mac. & G. 79. 
 
14 
 
 LEADING GASES IN EQUITY. 
 
 Personal 
 liability of 
 manager. 
 
 business in accordance with, the terms of the partnership articles (c). 
 The Court will not sanction the management of a concern under its 
 control for an indefinite period of time, and where a manager may- 
 be appointed, although the order appoints him for an undefined 
 period, it is the invariable practice to restrict the general effect of 
 the appointment, by directing that he shall not act beyond a fixed 
 date without the leave of the judge, and fixing a date for the 
 application for an extension of time (d). 
 
 A manager appointed by the Court is personally liable on the 
 contracts which he makes, unless ho limits his liability in entering 
 into a contract (e). But the manager is entitled to be indemnified 
 against his personal liability, but in no event in excess of the assets, 
 or of the sum appropriated to meet this right of indemnity, unless 
 the terms of his appointment provide otherwise (/). And persons 
 contracting with him are entitled, upon the equitable doctrine of 
 subrogation (g), to recover from assets appropriated to his right of 
 indemnity the amount of his liability to them (h). 
 
 [7] RENDALL v. RENDALL. (1841) 
 
 [1 Hare, 152; 11 L. J. Ch. 93.] 
 
 A testator made two wills, one dated in 1829, the other 
 
 in 1841. The plaintiff was executor of the earlier will, 
 
 the defendant was executor of both wills. There was a 
 
 contest in the Ecclesiastical Court, which at that date 
 
 (e) Waters v. Taylor (1808), 15 
 Ves. 10 ; Const v. Harris (1824), 
 T. & R. 496. 
 
 id) Gardner v. L. 0. § D. Ry. 
 (18t>7), 36 L. J. Ch. 323 ; L. R. 2 
 Ch. 201 ; Day v. Sykes (1886), 55 
 L. T. 763. 
 
 {e) Burt v. Bull (1894), 64 L. J. 
 Q. B. 232; [1895] 1 Q. B. 276; 
 Be Boynlon, Ltd., Hoffmann v. 
 Boi/nton, ltd. (1910), 79 L. J. Ch. 
 247 ; [1910] 1 Ch. 519. 
 
 ( /') Robinson Printing Co. v. 
 " Chic," ltd. (1905), 74 L. J. Ch. 
 399 ; [1905] 2 Ch. 123 ; Be British 
 Power, Ti action and Lighting Co., 
 Halifax Joint Stock Bank v. British 
 Power, Traction and Lightinq Co. 
 (1906), 75 L. J. Ch. 248 ; [1906] 1 
 Ch. 497 ; see further proceedings 
 
 (1907), 76 L. J. Ch. 423 ; [1907] 
 
 1 Ch. 528 ; Boehm v. Goodall (1»10), 
 8.i L. J. Ch. 86 ; [1911] 1 Ch. 
 155. 
 
 (g) See Leake, Contracts, 45. 
 (h) Utrtipp v. Bull, Sons $ Co. 
 (1895), (,4 L. J. Ch. 658 ; [1S95] 
 
 2 Ch. 1 ; Be Glasdir Coppir Mines, 
 ltd., English Electro-Metallurgic 
 Co. v. Glasdir Copper Mines, Ltd. 
 (1905), 75 L. J. Ch. 109 ; [1906] 1 
 Ch. 3c>5; Re London United Breuenes, 
 Ltd., Smith v. London United 
 Breweries, Ltd. (1907), 76 L J Ch. 
 612; [1907] 2 Ch. 511; Re British 
 Traction Co., Halifax Joint S'ock 
 Bank v. British Traction Co. (1910), 
 79 L. J. Ch. I-.66 ; [1410] 2 Ch. 470. 
 See Hand v. Blow (1H01), 70 L. J. 
 Ch. 687 ; [lbOi] 2 Ch. 721. 
 
JURISDICTION. 15 
 
 had exclusive jurisdiction to grant probate, as to which 
 of the two wills should be admitted to probate. 
 Wigram, V.-C, appointed a receiver to collect, get in 
 and preserve, the outstanding personal estate and effects 
 of the testator, until the suit in the Ecclesiastical Court' 
 should be determined. In giving judgment, he said: 
 " Two rules may, I believe, be stated with perfect safety. 
 First, where probate or administration has been granted, 
 a receiver will not be appointed, 'pending litigation in 
 the Ecclesiastical Courts, to recall probate, unless a special 
 case be made for doing so. Secondly, where no probate 
 or administration has been granted, it is of course to 
 appoint a receiver pending a bona fide litigation in the 
 Ecclesiastical Courts to determine the right to probate 
 or administration, unless a special case can be made for 
 not doing so." 
 
 We are now dealing with the auxiliary jurisdiction exercised by Protecting 
 the Court of Chancery in the days of divided jurisdictions. This property, 
 auxiliary jurisdiction may now be exercised by all Divisions of the 
 Supreme Court established by the Judicature Act, 1873, in those 
 matters of which the Court is properly seised. Accordingly, a 
 receiver may be appointed by the Probate Division (?'), and under 
 the circumstances of the principal case the application should 
 preferably be made to that Division (ft). The better course, how- 
 ever, is to appoint an administrator pendente lite (I). 
 
 The Court would also preserve matters in statu quo pending the Preserving 
 trial of an action of which it had cognizance (m). Thus, a party the status quo. 
 has been restrained from parting with the legal estate in an action 
 for specific performance («). But the general rule was not to 
 interfere with a legal title, unless it appeared that the defendant in 
 
 (i) In the Goods of Moore (1888), 243 ; 2 Ph. 597. See Shrewsbury $ 
 
 57 L. J. P. 37 ; 13 P. D. 36. Chester Ry. v. Chester $ Birmingham, 
 
 (k) Re Parker, Bearing v. Brooks By. (1851), 20 L. J. Ch. 571 ; 1 Sim. 
 
 (18.S5), 5* L. J. Ch. 694. N. S. 410. 
 
 (1) Re Toleman, Westwood v. (») SjAUer v. 8 filler (1819), 3 
 
 Booker (1897;, 66 L. J. Ch. 452; Swanst. 556. See Hadley v. London 
 
 [1897] 1 Uh. 866. Bank of Scotland (1805), 3 De G-. 
 
 (/«) G. W. Ry. v. Birmingham S; J. & S. 63 ; London $ County Bk. 
 
 Oxford Jn. By. (1848), 17 L. J. Ch. v. Lewis (1882), 21 Ch. D. 490. 
 
16 
 
 LEADING CASES IN EQUITY. 
 
 Discovery and 
 inspection. 
 
 Auxiliary- 
 jurisdiction 
 wi'ter judg- 
 ment. 
 
 equity tad a bare legal title of which the Court of Chancery would 
 deprive him on equitable grounds (o). But since th9 Judicature 
 Act, 1873, the Court exercises an enlarged jurisdiction where the 
 title to land is in dispute, to preserve the status quo(p). And the 
 Court would protect a prima facie legal title against repeated 
 trespasses, or an apprehended trespass (q). 
 
 The Court of Chancery also granted auxiliary relief by way of 
 interrogatories, discovery and inspection to plaintiffs or defendants 
 at law (r). This jurisdiction is now conferred on all branches of 
 the High Court in matters pending before them (s). The jurisdic- 
 tion is exercised according to the rules established by the Court of 
 Chancery prior to the passing of the Judicature Act, 1873 (t). 
 
 The Court of Chancery would exercise an auxiliary jurisdiction 
 in aid of common law process to remove obstacles preventing the 
 plaintiff at law from reaping the fruits of a decision in his favour («). 
 
 Account. 
 
 [8] PEARSE v. GREEN. (1819) 
 
 [1 Jac. & W. 135.] 
 The defendants were the owners of a privateer. By 
 articles of agreement the defendants were to receive three- 
 
 (o) Jones v. Hughes (1842), 1 Ha. 
 383 ; Dalghsh v. Jarvie (1850), 20 
 L. J. Ch. 475 ; 3 Mac. & G. 231 ; 
 Ferry v. Shipway (1859) , 28 L. J. Ch. 
 060 ; 4 De G. & J 3*3. See 
 Saunders v. Smith (1838), 7 L. J. Ch. 
 227 ; 3 M. & Cr. 711 ; Lowndes v. 
 Bettle (1864), 33 L. J. Ch. 451. 
 
 (p) Berry v. Keen (1882), 51 
 L. J. Ch. 912; OwatMn v. Bird 
 (1883), 62 L. J. Q. B. 263 ; lox- 
 well v. Van Grutten (1896), 66 
 L. J. Ch. 53; [1897] 1 Ch. 83. 
 See Black Point Syndicate v. Eastern 
 Concessions, Ltd. (1899), 79 L. T. 
 658. 
 
 (?) See Bush v. Western (1720), 
 Preo. Ch. 530 ; Hemphill v. McKenna 
 (1842), 3 Dru. & War. 183 ; Hext 
 v. Gill (1872), 41 L. J. Ch. 761 ; 
 L. K. 7 Ch. 699. 
 
 (r) See Rumboldv. Fortealh (1856, 
 1857), 3 K. & J. 44, 748 ; reile v. 
 
 Stoddart (1849), 1 Mac. & G. 192. 
 As to discovery agraitist a stranger, 
 Adams v. Fisher (1838), 7 L. J. Ch. 
 289 ; 3 M. & Cr. 526. 
 
 (*) Judicature Act, 1873 (36 & 
 37 Vict. c. 6fi), s. 24 (7) ; R. S. C. 
 1883, Order XXXI. See generally 
 Bray, Discovery ; Annual Prac- 
 tice ; Seton, Decrees. 
 
 (/) Anderson v. Bank of British 
 Columbia (1876), 45 L. J. Ch. 449 ; 
 2 Ch. D. 644 ; Lyell v. Kennedy 
 (1883), 52 L. J. Ch. 385 ; 8 App. 
 Cas. 217 ; Ind, Coope $ Co. v. 
 Emmerson (1887), 56 L. J. Ch. 989 ; 
 12 App. Cas. 300. 
 
 («) Sea Re Pope (1886), 55 L. J. 
 Q. B. 522 ; 17 Q. B. D. 743 ; 
 Holmes v. Millaqe (1893), 62 L. J. 
 Q. B. 380; [1891] 1 Q. B. 551. 
 See as to the actual decision in Re 
 Pope, Lands Charges Registration 
 Act, 1900. 
 
ACCOUNT. 17 
 
 fourths, and the plaintiffs and others who were officers 
 and orew of the privateer, the remaining fourth of the 
 net proceeds of all the prizes to be taken; the defendants 
 Kelly and Dunsterville were to be the managers and 
 agents of the vessel and her prizes, and for the appraise- 
 ment, sale and disposal of them; they were to receive a 
 commission for their agency; and none of the crew were 
 to interfere with them in the management of the prizes. 
 A representative action was brought by four members of 
 the crew, i.e., on behalf of themselves and all other the 
 unsatisfied officers and crew, for an account, and distribu- 
 tion of the prize money according to the articles. The 
 defendants admitted that they had rendered no accounts 
 to the plaintiffs. Sir Thomas Plumer, M.R., said: "It 
 is the first duty of an accounting party, whether an agent, 
 a trustee, a receiver, or an executor, for in this respect, 
 as was remarked by the Lord Chancellor in Lord Hard- 
 wicke, v. Vernon, they all stand in the same situation, 
 to be constantly ready with his accounts." And the de- 
 fendants were, according to the usual practice where the 
 suit is rendered necessary by an accounting party neglect- 
 ing to perform their duty, fixed with interest on the 
 capital found due, and the costs of suit. 
 
 The student should observe that the decided oases deal with three 
 distinct rights and obligations : — (1) the keeping of accounts ; 
 (2) the furnishing of copies of accounts; (3) the furnishing of 
 information. 
 
 An accounting party must keep separate and distinct accounts, Keeping 
 and where an executor or trustee keeps an account of the trust accounts, 
 property in books relating to his business, the beneficiary may see 
 these books (x). In the case of entries in partnership books, or 
 books of an agent employed by other persons and keeping several 
 accounts in one book, a general inspection cannot be obtained 
 except by consent of the parties whose private affairs might thus be 
 
 (x) See Freeman v. Fairlie (1812), 3 Mer. 24. 
 R. C 
 
18 
 
 LEADING CASES IN EQUITY. 
 
 Inspection 
 of accounts. 
 
 Copies of 
 accounts. 
 
 Submission 
 to pay or 
 account. 
 
 disclosed, or unless a special case is made (y). In one case an 
 accounting party kept accounts of a trust upon loose sheets of paper, 
 but this course is one which it is inexpedient to follow (z), and where 
 an account book appeared to have been mutilated, the Court acted 
 as it always does, in odium spoh'atoria, and inferred that the 
 defendant could produce eighteen missing leaves, and ordered him 
 to do so (re). As mentioned in the principal case, the usual penalty 
 for not keeping proper accounts is liability for interest and costs, 
 but in one case where the course of dealing between a landowner 
 and his steward was substantially that of banker and customer, 
 the steward was not fixed with interest (b). 
 
 The person entitled to an account may have the books inspected 
 by his agent, and he need not employ the nominee of the accounting 
 party (c). 
 
 It would seem that a party entitled to production or inspection of 
 documents is himself entitled to make a copy of the documents (d). 
 A party requiring a copy of an account should generally tender a sum 
 sufficient to cover the cost of making the copy, even where he has 
 an interest as beneficiary, or is a creditor of the accounting 
 party (e). 
 
 A party suing for an account must pay any balance found due 
 from him to the accounting party, and where there is an open 
 account in which the antecedent items respecting which the account 
 in equity is sought to be taken, are necessarily connected with and 
 not capable of being severed from the other items of the account, 
 there need not be a formal offer to pay any adverse balance (/). 
 It is upon this principle that where work was to be paid for under 
 a contract which provided for periodical payment in a. foreign 
 currency, the value was ascertained according to the rate of 
 
 (y) Myler v. Fitzpatrick (1822), 
 6 Madd. 360 ; Taylor v. Rundell 
 (1841), Cr. &P. 104; further pro- 
 ceedings (1843), 13 L. J. Ch. 20 ; 
 
 1 Ph. 222; Aireyv. Hall (1848), 
 
 2 De G. & Sm. 489 ; Reid v. Lang- 
 his (1849), 19 L. J. Ch. 337; 1 
 Mac. & G. 627 ; Kearsley v. Philips 
 (1882), 52 L. J. Q. B. 269; 10 
 Q. B. D. 465. 
 
 (z) Hardwicke (Lord) v. Vernon 
 (1799), 4 Ves. 411. See Exp. Swin- 
 banks ('879), 48 L. J. Bk. 120; 11 
 Ch. D. 525. 
 
 (a) Farrer v. Hutchinson (1839), 
 9 L. J. Ex. Eq. 10 ; 3 T. & C. Ex. 
 602. 
 
 (*) Salisbury (Marq.) v. Wilkin- 
 
 son, cited 14 Ves. at p. 509. 
 
 (c) Kemp v. Burn (1863), 4 Giff. 
 348. 
 
 (d) See Gabbit v. Cavendish (1795), 
 2 Anstr. 547 ; Ormerod, Grierson $• 
 Co. v. St. George' s Ironworks (1905), 
 74 L. J. Ch. 373; [19051 1 Ch. 
 505. 
 
 {e) Ottley v. Gilby (1845), 14 L. J. 
 Ch. 177; 8Beav. 602; Re Bosworth. 
 Martin v. Lamb (1889), 58 L. J. 
 Ch. 432; Re Dartnall. Sawyer v. 
 Goddard (1895), 64 L. J. Ch. 341 ; 
 [1895] 1 Ch. 474. 
 
 (f) Stowell (Lady) v. Cole (1693). 
 2 Vera. 296; Knebell v. White 
 (1836), 5 L. J. Ex. Eq. 98 ; 2 Y. & 
 C. Ex. 15. 
 
ACCOUNT. 19 
 
 exchange when the ultimate liability was fixed, and not according 
 to the rate of exchange in force at the date when each periodical 
 payment ought to have been made (<?). If the party seeking an 
 account be indebted to the accounting party in respect of matters 
 unconnected with the amount sued for, it must be made the subject 
 of cross proceedings (h). 
 
 Where a trustee wrongfully failed to account and thus compelled Costs of 
 recourse to judicial proceedings, it was custom to fix him with actlon - 
 costs up to the hearing, that being the stage at which his liability 
 to account was established, but to give him the subsequent costs. 
 Since the Judicature Act, 1873, it is now the practice to throw the 
 whole costs of action upon the accounting party if in default (i). 
 
 Sect. 13 of the Public Trustee Act, 1906, contains provisions for Public 
 the investigation and audit of the condition and accounts of any Trustee 
 trust by a solicitor or public accountant, or by the public trustee 
 constituted by the Act, or by some person appointed by him. The 
 right of the beneficiary under this statute is not in any wise 
 enlarged, and it is doubtful if it is as beneficial as an account taken 
 under the direction of the Court, for there is no provision making 
 the report or certificate of the person investigating the account 
 conclusive between the beneficiaries and trustees, or enabling the 
 beneficiary to obtain payment into Court of an adverse balance 
 found against a trustee. If any person, in any statement of 
 accounts, report, or certificate required for the purposes of the 
 section, wilfully makes a statement false in any material particular, 
 he is punishable on conviction on indictment or on summary 
 conviction ; but it would seem that an application must be made 
 and notice thereof given in the manner prescribed by the rules 
 issued under the Act, as a necessary preliminary to fix the offender 
 with criminal liability. 
 
 Act, 1906. 
 
 COLEMAN v. MELLERSH. (1850) [9] 
 
 [2 Mac. & G. 309.] 
 
 In this case the plaintiff, as administratrix, filed a bill 
 for an account against the defendants, who had acted as 
 solicitors of her intestate. The defendants pleaded a 
 
 (ff) Manners v. Pearson § Son v. Wells (1883), 32 W. B. 26; Re 
 
 (1898), 67 L.J. Ch. 304; [1898] Skinner, Cooper v. Skinner (1903), 
 
 1 Ch. 581. 73 L. J. Ch. 94 ; [1904] 1 Ch. 289 ; 
 
 (h) Clarke v. Tipping (1842), 4 fie Linsley, Cattley v. West (1904), 
 
 Beav. 588. ' 73 L. J. Ch. 841 ; [1904] 2 Ch. 
 
 (i) Re Bayter, Re Wallett, Hayter 785. 
 
20 LEADING CASES IN EQUITY. 
 
 settled aooount. As regards one item of 6001. for pro- 
 fessional services in respeot of which no bill had been 
 sent in, it appeared, by a reference to the book from which 
 the account must have been taken, that this item in fact 
 amounted to 524Z. 18s. id. The plaintiff was held en- 
 titled to re-open the account, and not merely to surcharge 
 and falsify. In giving judgment, Lord Cottenham, L.C., 
 said: "A settled account, otherwise unimpeachable, in 
 which an error is proved to exist, may be subjected 
 to a decree to surcharge and falsify, upon the supposition 
 that one error having been proved, others may .be ex- 
 pected, upon investigation, to be discovered; but if the 
 relative situation of the parties, or the manner in which 
 the settlement took place, or the nature of the error proved, 
 show that the alleged settlement ought not to be con- 
 sidered as an act binding upon the party signing, and 
 that it would be inequitable for the accounting party to 
 take advantage of it, the Court is not content with en- 
 abling the party to surcharge and falsify an account which 
 never ought to have been so settled, but directs the taking 
 of an open account. Among the grounds on which the 
 Court rests the application of this principle, none are 
 stronger than the fact that the accounting party was the 
 solicitor or agent of the party sought to be charged, or 
 that the circumstances gave him a commanding power or 
 influence over him, or the facts prove that he possessed 
 and abused the confidence which had been reposed in him." 
 
 Remedy The Court may order any account to be opened, but the practice 
 
 presumptively j 8 a8 s t a ted in the text, not to open an account, but onlv to give 
 
 T6" OpCHlHGT •/ o 
 
 liberty to surcharge and falsify, unless a special case is made for 
 
 the stricter order (k). 
 
 Definition No formality is necessary to constitute a settled account. A 
 
 of settled person receiving an account, and not disputing its correctness for a 
 
 account. 
 
 (k) Williamson t. Barbour (1877), Gething y. Keighhy (1878), 48 L. J. 
 50 L. J. Ch. 147 ; 9 Ch. D. 529 ; Ch. 45 ; 9 Ch. D. 547. 
 
ACCOUNT. 21 
 
 considerable time, will be taken to have so far acquiesced in its 
 propriety as to be bound to treat it as a settled account (I). The 
 insertion of the words "errors excepted" does not affect the 
 question, as all accounts are impliedly subject to that qualifica- 
 tion (ro). 
 
 A party impeaching a settled account must show error, whether Error 
 his remedy be merely to surcharge and falsify, or to re-open the essential, 
 account (m). 
 
 A party originally entitled to re-open an account may lose his Laches and 
 right by laches and acquiescence, and in that event he will only be acquiescence, 
 allowed to surcharge and falsify (o). But in the case of fraud, time 
 is only operative from the date of its discovery, and mere lapse of 
 time will be no bar (p). 
 
 WALMSLEY v. WALMSLEY. (1846) [10] 
 
 [3 Jones & Lat. 556.] 
 
 This was an action by the personal representative of 
 a deceased partner against the surviving partner for an 
 account of the partnership dealings and transactions. The 
 defendant withheld partnership hooks, which it was 
 admitted or proved were either in his possession, or which 
 he could procure to be produced. It became impossible 
 to take an exact account of the profits of the partner- 
 ship, and the Master fixed the net profits at 10 per cent, 
 on the capital stock. From this adjudication the defen- 
 dant appealed to Sir Edward Sugden (afterwards Lord 
 St. Leonards), then Lord Chancellor of Ireland, but he 
 confirmed the order of the Master, observing: "If he had 
 charged the defendant with 20Z. per cent, as the net 
 profits, I would have confirmed the report." 
 
 (Z) Tie/cel v. Short (1751), 2 Ves. («) Se Well, Lambert v. Still 
 
 Sen. 239; Irvine v. Young (1823), (1893), 63 L. J. Oh. 145 ; [1894] 1 
 
 1 L. J. (0. S.) Ch. 108 ; 1 Sim. & Ch. 73. 
 
 S. 333 ; Parkinson v. Eanbury (o) Brownell v. Brownett (1786), 
 
 (1867), 36 L. J. Ch. 292; L. K. 2 2 Bro. C. C. 62; Millar v. Craig 
 
 H. L. 1. (1843), 6 Beav. 433. 
 
 (m) Johnson v. Curtis (1791), 2 (p) Allfrey v. Allfrey (1849), 1 
 
 Bro. C. C. 311, n. Mac. & G. 87. 
 
22 LEADING OASES IN EQUITY. 
 
 A preceding note has dealt with the question of accountability 
 generally. It may be observed that although the decisions of 
 Irish Courts are not binding upon English Courts, the decisions 
 of Lord St. Leonards while Lord Chancellor of Ireland are treated, 
 in practice, as of equal authority with his decisions when he filled 
 the office of Lord Chancellor of England. 
 
 There are several examples in the books of the cases in which 
 the Court has acted in odium spoliatoris. Thus a tenant in tail in 
 remainder was allowed to recover from the executors of a deceased 
 tenant for life a sum of money which was arbitrarily fixed for 
 equitable waste committed, there being no means of ascertaining 
 exactly the sums actually received (q). So where an agent mixes 
 his principal's money with his own, he is fixed with liability for 
 the whole sum and only allowed those moneys which he can prove 
 by clear evidence to belong to him(r). And in a partnership case, 
 where the books had been imperfectly kept, an accounting party 
 was charged with the sums of money appearing on the debit side, 
 and compelled to justify the items appearing on the credit side (s). 
 Special It sometimes happens that owing to the usual course of dealing 
 
 directions. or ^y reason f accidental circumstances, vouchers are not forth- 
 coming. In this case the Court may, upon a proper case being 
 made, direct the accounts actually kept to be assumed to be prima 
 facie correct and give special directions for vouc hin g (t). 
 
 Ademption. 
 
 — ♦ — 
 
 [11] ASHBURNER v. MACGUIRE. (1786) 
 
 [2 Bro. Ch. Cas. 108 ; 1 Wh. & T. L. C. 827.] 
 
 In this case the testator bequeathed " the interest arising 
 from" a bond "to me for principal 3,500?. sterling." 
 
 (q) Leeds (Duke) v. Amherst (Earl) 1883, Ord. XXXIII. r. 3. This 
 
 (1850), 20 Beav. 239. rule confirms the previous practice. 
 
 (r) Lupton v. White (1808), IS Eardwicke (Lord) v. Vernon (1799), 
 
 Ves. 432; Re Oatway, Hertslet v. 4 Ves. ill; Chalmer v. Bradley 
 
 Oatway (1903), 72 L. J. Ch. 575 ; (1819), 1 Jac. & W. 51 ; Skipworth 
 
 [1903] 2 Ch. 356 ; where the same v. Skipworth (1840), 9 L. J. (N. S.) 
 
 prinoiple was applied to the case of Ch. 182; Turner v. Cornty (1841), 
 
 a trustee. 5 Beav. 515; Allfrey v. Allfrey 
 
 (s) Morchousev. Newton (1849), 3 (1849), 1 Mac. & G. 87 ; Sleight v. 
 
 De G-. & Sm. 307. Lawson (1857), 26 L. J. Ch. 553 ; 
 
 (() Rules of the Supreme Court, 3 K. & J. 292. 
 
ADEMPTION. 23 
 
 The bond debtor became bankrupt, and the testator re- 
 ceived a dividend of 4s. 3$. in the pound, and after his 
 death a further dividend of 2s. 9d. was declared. The 
 legacy was held to be specific, and adeemed quoad tha 
 4s. 3d., but the legatees were held to be entitled to the 
 dividend declared after the testator's death, and to de- 
 livery of the bond, with a view to the recovery of subse- 
 quent dividends. 
 
 The testator also bequeathed " my capital stock of 
 1,000L in the India Company's stock." The testator sold 
 this stock subsequently to the will. This legacy was held 
 to bo specific and adeemed. 
 
 There are three kinds of legacies — general, demonstrative, and 
 specific, and it is only the last-mentioned kind that is liable to he 
 adeemed (it). 
 
 It will be observed that the principal case decides two points, Entire or 
 first, that the destruction of the subject-matter operates as an ademption* 
 ademption ; secondly, that the ademption is proportional to the 
 amount received by the testator. 
 
 The transaction relied upon as an ademption must take place Time of 
 while the testator is alive (cc). Accordingly, an offer made by an ademption, 
 agent to sell property which is not accepted until after the testator's 
 death, although the offer was made antecedently, does not operate 
 as an ademption {y). 
 
 In the leading case, the Court had to consider the effect of the Change of 
 partial or total destruction of the subject-matter. There is another g U tS ec J 
 class of decisions, namely, where the subject-matter has been matter, 
 changed in character, as where debentures have been converted 
 into debenture stock, or shares have been converted into stock, 
 or from one class of security into another but similar one. It 
 is not easy to reconcile the cases, but the determination of the 
 question turns upon whether the identity of the subject-matter is 
 preserved after the conversion from one character to another (z). 
 
 («) Vickers v. Pound (1858), 28 (z) Oakes v. Oalces (1852), 9 Hare, 
 
 L.J. Ch. 16; 6 H. L. C. 885; 666; Re Gibson, Matthews v . Foul- 
 
 Mullins v. Smith (1860), 1 Dr. & sham (1866), 35 L. J. Ch. 596 ; 
 
 Sm. 204. L. E.. 2 Eq. 669 ; Macdonald v. 
 
 (x) Harrison v. Asher (1848), 17 Irvine (1878), 47 L. J. Ch. 494 ; 8 
 
 L. J. Ch. 452 ; 2 De'G. & Sm. 436. Ch. D. 101 ; Re Lane, Luard v. Lane 
 
 (y) Re Pearce, Roberts v. Stephens (1880), 49 L. J. Ch. 768 ; 14 Ch. D. 
 
 (1894), 8 K. 805. 856. 
 
24 
 
 LEADING OASES IN EQUITY. 
 
 organization. 
 
 Duty to 
 preserve in 
 specie. 
 Distinction 
 between 
 ademption 
 and satis- 
 faction. 
 
 And a similar principle is applicable to a gift of land, as where a 
 lessee after making a specific bequest of bis interest, which, was 
 leasehold, subsequently to the date of his will acquired the fee (a) ; 
 or a freeholder after making a specific devise of his freeholds sold 
 them and took » security by way of mortgage over the property 
 sold (6). But this application of the law of ademption gives way to 
 the terms of the will. A testator may so describe the subject- 
 matter as to pass the property under its changed condition, or the 
 proceeds of sale of property, and this whether the gift is one of the 
 testator's own property, or by the execution of a power, and in the 
 latter case whether the power be general or special (c). 
 
 But the change maybe less in the material aspect of the subject- 
 matter, as in its component parts. Thus a man may devise a house 
 specifically by name, and subsequently build upon a garden 
 appurtenant thereto (d), or shares may be sub-divided and increased 
 in number and the nominal value reduced (e). In both these cases 
 there is no ademption, but the property in its altered character 
 becomes subject to the provisions of the will. 
 
 "Where the legacy is specific, it is the duty of the executor to 
 abstain from selling the subject-matter (/). 
 
 Cases dealing with the equitable doctrine of " Satisfaction," 
 which is discussed hereafter, are sometimes collected under the 
 head of "Ademption." The expression " ademption" is properly 
 restricted to cases dependent upon the non-existence of the subject- 
 matter, and the expression "satisfaction" to cases where the gift 
 fails although the subject-matter exists (g). 
 
 Administration. 
 
 [12] TOWER v. ROUS (LORD). (1811) 
 
 [18 Ves. 132.] 
 The testator devised freehold lands, subject to> the mort- 
 gages then or thereafter affecting the same, and to the 
 
 (a) Cox v. Bennett (1868), L. R. 
 6 Eq. 422 ; Saxtonv. Saxton (1879), 
 49 L. J. Ch. 128 ; 13 Ch. D. 359. 
 
 (b) Re Clowes, [1893] 1 Ch. 214. 
 
 (c) lie Dowsett, Bowsett v. Meakin 
 (1900), 70 L. J. Ch. 149; [1901] 
 i Ch. 398 ; Beddington v. Baumann 
 (1902), 72 L. J. Ch. 155; [1903] 
 A. C. 13. 
 
 (d) Be Evans, Evans v. Powell 
 (1909), 78 L. J. Ch. 441 ; [1909] 
 
 1 Ch. 784. 
 
 (e) Be Oillins, Itiglis v. Gillim 
 (1909), 78 L. J. Ch. 244 ; [1909] 1 
 Ch. 345. 
 
 (/) Clarke v. Ormonde (EarT) 
 (1821), Jac. 108. See Re Broad- 
 wood, Zyall-v. Broadwood (1911), 80 
 L. J. Ch. 202 ; [1911] 1 Ch. 277. 
 
 (g) See per James, L.J., Tank- 
 hurst v. Howell (1870), L, R. 7 Ch. 
 138. And see post, p. 140. 
 
ADMINISTRATION. 25 
 
 payment of his debts and the legacies theremaftw given* 
 to trustees for a term of 1,'000 years, upon trust (so far 
 as it is necessary to state the will) to sell certain freehold 
 and copyhold estates in order to discharge " all mortgages 
 and incumbrances on any of my said estates, and all my 
 debts and legacies." Sir William Grant, M.R., held that 
 the personal estate was not exonerated from its primary 
 liability to pay debts and legacies. 
 
 This case has been chosen in preference to Ancaster (Duke) v. Primary 
 Mayer (h), in which the question was complicated by the applica- liability of 
 tion of the rule, that where an estate was subject to a charge which g^te'of 
 had not been created by the testator, the heir or devisee took the testator to 
 property burdened with the debt. But questions of this kind are P a y <iebts_ 
 no longer of importance by reason of a series of statutes generally ° 
 
 referred to as Locke King's Acts, but more correctly styled the 
 Eeal Estate Charges Acts, 1854, 1867, and 1877. The earlier Statutory 
 statutes received a narrow construction, but the Court of Appeal amendments 
 has, in a considered judgment, expressed the opinion that the Act 
 of 1877 is to be regarded as a legislative declaration that the statutes 
 should receive a liberal interpretation (i). 
 
 The effect of the Act of 1854 was to leave the burden of the debt 
 upon the land, upon which it was charged in exoneration of the 
 personalty (&), unless there were a written direction in a will, deed, 
 or other document, expressing a contrary intention (I) ; but saving 
 the right of the person entitled to the charge to be paid the value 
 thereof out of the personal estate. The Act of 1867 enacts that " a 
 general direction that the debts, or that all the debts, of the testator 
 shall be paid out of the personal estate shall not be deemed to be a 
 declaration," throwing the primary burden on the personal estate ; 
 and further, that a vendor's lien for unpaid purchase-money is to 
 be deemed a mortgage within the meaning of the Acts, where the 
 deceased left a will (m). The Act of 1877 extended the provisions 
 
 (h) Ancaster (Duke) v. Mayer (Z) Eno v. Tatham (1863), 32 L. J. 
 
 (1785), 1 Bro. C. C. 454; 1 Wh. & Ch. 311 ; 3 De G. J. & S. 443; 
 
 T. L. C. Eq. 1. He Campbell, Campbell v. Campbell 
 
 [i) lie Fraser, Lowther v. Eraser (1893), 62 L. J. Ch. 594; [1893] 2 
 
 (1904), 73 L. J. Oh. 481 ; [1904] 1 Ch. 206 ; Re Valpy, Valpy v. Valpy 
 
 Ch. 726. (1906), 75 L. J. Ch. 301 ; [1906] 
 
 (i) Re Fraser, Lowther v. Fraser 1 Ch. 531. 
 
 (1904), 73 L. J. Ch. 481; [1904] 1 (m) Harding v. Harding (1872), 
 
 Ch. 726. 41 L.J. Ch. 523; L. R. 13 Eq. 493. 
 
26 
 
 LEADING OASES IN EQUITY. 
 
 Exoneration 
 of personal 
 
 estate. 
 
 Blended 
 fund. 
 
 Liability of 
 land. 
 
 of the earlier statutes to leasehold estates (n), and made the vendor's 
 lien a charge within the meaning of the Acts where the deceased 
 died intestate (o). 
 
 A testator may expressly exonerate his personal estate from its 
 primary liability to pay debts (p). or particular debts [q), or 
 legacies (r), and fix the liability upon the land, or a part of the 
 land, and the wishes of the testator in this respect will be given 
 effect to. 
 
 Where a testator creates a blended fund of personalty and of the 
 proceeds of realty, the debts and legacies will be payable pro rata 
 out of the blended fund. It is not necessary that an out and out 
 conversion of the realty should be directed, it is sufficient that an 
 intention to create a blended fund for the payment of debts and 
 legacies is manifested (s). 
 
 Until the passing of the Administration of Estates Act, 1833, 
 freehold and copyhold land was not available for the payment of 
 the simple contract debts of a deceased, unless he were a, trader 
 within the meaning of the bankrupt law ; and the liability of the 
 freehold and copyhold land of a trader had only been introduced 
 by the Debts Recovery Act, 1830. Land had, however, been made 
 available for the payment of debts by means of a charge of debts, 
 or a trust for the payment of debts. But there was a conveyancing 
 difficulty, namely, whether the personal representative could convey 
 the legal estate, or whether he merely possessed an equitable power. 
 This difficulty was, after some inadequate statutory amendment, 
 put upon a satisfactory basis by the Land Transfer Act, 1897, and 
 sect. 12 of the Conveyancing Act, 1911, which vests the realty in 
 the personal representative duly constituted, subject to the right of 
 the heir or devisee to claim the land after the debts are satisfied in 
 a due course of administration (t). These statutes do not apply to 
 
 (») lie Kershaio, Brake v. Ker- 
 shaw (1888), 57 L. J. Ch. 599; 37 
 Ch. D. 674. 
 
 (o) See Re Cockroft, Broadbent v. 
 Groves (1883), 52 L.J. Oh. 811 ; 24 
 Ch. D. 94. 
 
 {p) Webb v. Jones (1786), 1 Cox, 
 245 ; Bootle v. Blundell (1816), 1 
 Mer. 193. 
 
 (?) Hancox v. Abbey (1805), 11 
 Ves. 179 ; Forrest v. l'rescott (1870), 
 L. R. 10 Eq. 645. 
 
 (r) Webb v. Jones (1786), 1 Cox, 
 245; Hancox v. Abbey (1805), 11 
 Ves. 179 ; Creed v. Creed (1844), 11 
 CI. & E. 491. See Conron v. Conron 
 (1858), 7 H. L. C. 168. 
 
 (») Boughton v. Boughlon (1848), 
 1 H. L. C. 406; Allan v. Gott 
 (1872), 41 L. J. Ch. 571 ; L. R. 7 
 Ch. 439 ; Re Boards, Knight v. 
 Knight (1895), 64 L. J. Ch. 305 ; 
 [1895] 1 Ch. 499. See Re Stephens, 
 Warburton v. Stephens (1899), 59 
 L. J. Ch. 109 ; 43 Ch. D. 39. 
 
 (t) Re Kempster, Kempster v. 
 Kempster (1906), 75 L. J. Ch. 286 ; 
 [1906] 1 Ch. 446. See Carson's 
 Real Property Statutes, pp. 392 — 
 439. See also Re Tanqueray-Wil- 
 laume and Landau (1882), 51 L. J. 
 Ch. 434 ; 20 Ch. D. 465 ; Re Lacey, 
 Howards. Lightfoot (1907), 76 L. J. 
 Ch. 316 ; [1907] 1 Ch. 330. 
 
ADMINISTRA TION. 
 
 27 
 
 copyholds, but the question is rather one of conveyancing than of 
 equitable jurisdiction. 
 
 Unless a testator has made provision for payment of his debts in Order in 
 a different manner, the assets are applied in the following order : — ■ which assets 
 
 (1) General personal estate not specifically bequeathed. satisfaction 
 
 (2) Real estate directed to bo sold for payment of debts. of debts. 
 
 (3) Real estate descended. 
 
 (4) Eeal estate charged with the payment of debts. 
 
 (5) Personal property bequeathed as a general pecuniary legacy. 
 
 (6) Specific devises, residuary real estate, and specific bequests. 
 
 (7) Eeal or personal estate over which the testator has a general 
 
 power (u). 
 
 " "When assets may be made available in a Court of law they are Legal and 
 legal assets ; and when they can only be made available through a equitable 
 Court of equity they are equitable assets. This proposition does 
 not, however, refer to the question whether the assets can be 
 recovered by the executor in a Court of law or in a Court of equity. 
 The distinction refers to the remedies of the creditor and not to the 
 nature of the property. The question is not whether the testator's 
 interest was legal or equitable, but whether a creditor of the 
 testator, seeking to get paid out of such assets, can obtain payment 
 thereout from a Court of law, or can only obtain it through a Court 
 of equity. This, I apprehend, is the true distinction. If a creditor 
 brings an action at law against the executor and the executor 
 pleads plene administravit, the truth of the plea must be tried by 
 ascertaining what assets the executor has received, and whatever 
 assets the Court of law, in trying that question, would charge the 
 executor with must be regarded as legal assets ; all others would 
 be equitable assets "(a;). This test is still applicable, only one 
 must consider what would have been the case prior to the Judica- 
 ture Act, 1873. Thus, Part I. of the Transfer of Land Act, 1897, 
 vests the realty in the personal representative, and would be legal 
 assets. On the other hand, a simple contract creditor could only 
 make good his claim against the land by proceedings in equity, to 
 which the real, as well as the personal representative was a 
 necessary party ; it was accordingly equitable assets under the 
 Administration of Estates Act, 1833. The importance of the distinc- 
 tion at the present day is respecting the priority in which debts must 
 be paid. Equitable assets are applicable in payment of all debts 
 pari passu, and the executor is deprived of his right of retainer (y). 
 
 (u) See Carson, Eeal Property Gregson (1856), 25 L. J. Ch. 706 ; 3 
 Statutes, p. 411. Drew. 547. 
 
 (x) Kindersley, V.-C, Cook v. (y) Talbot v. Frere (1878), 9 
 
28 
 
 LEADING CASES IN EQUITY. 
 
 Priority of 
 debts. 
 
 Now that all the assets can be made available for payment of 
 debts, the question of priority can only become important where 
 the estate is insolvent. Equitable assets are applied in payment of 
 debts pari passu, with the probable exception of Crown debts which 
 would have priority. Legal assets are applied in discharge of debts 
 in the following order : — 
 
 (1) Crown debts. 
 
 (2) Debts having a statutory priority. 
 
 (3) Judgments in Courts of record or decrees in Chancery against 
 
 the deceased. 
 
 (4) Judgments against the personal representative. 
 
 (5) All other debts are payable pari passu with the possible 
 
 exception of voluntary bonds, which may be postponed 
 until the other debts have been paid in full (z). 
 
 [13] 
 
 Account- 
 ability of 
 creditor. 
 
 COURTENAY v. WILLIAMS. (1844—1846) 
 [3 Hare, 539 ; 13 L. J. Ch. 461 ; affd. 15 L. J. Ch. 204.] 
 
 The plaintiff was the assignee of a legacy bequeathed 
 to a debtor. The debt was irrecoverable at the testator's 
 death by force of the Limitation "Act, 1623 (21 Jac. 1, 
 c. 16), more than six years having elapsed since it was 
 incurred, the debtor not having given a sufficient acknow- 
 ledgment to renew his liability. Sir J. Wigram, V.-C, 
 held that the executor was entitled to retain so much of 
 the legacy as was sufficient to satisfy the debt. Lord 
 Lyndhurst, L.C., affirmed this decision upon appeal. 
 
 In order that the rule may apply, the legatee must have been the 
 debtor to the testator. Thus, where a residuary legatee was not 
 personally a debtor to the testator, but was sole residuary legatee 
 and one of the executors of a testatrix who was a debtor to the 
 first estate, he was held entitled to be paid the full amount of his 
 share of residue in the first estate without any deduction in respect 
 of the debt of his testatrix (a). 
 
 Ch. D. 668 ; Wallers v. Walters 
 (1881), 60 L. J. Ch. 819 ; 18 Ch. D. 
 182 ; Be Itiidge, Davidson v. Illidge 
 (1884), 53 L. J. Ch. 991 ; 27 Ch. D. 
 
 478. 
 
 (z) Carson, Real Property Sta- 
 tutes, pp. 410 — 412. 
 
 (a) Se Bruce, Lawford v. Bruce 
 
ADM1NIS TEA TION. 29 
 
 Tie debt must be one which, but for the Limitation Act, 1623 wtat debts 
 (which bars the remedy and not the right), would be recoverable, m ay be 
 and where the debt is payable by instalments, only those instal- deduoted - 
 ments which are actually due and unpaid can be deducted, but not 
 future instalments (i). 
 
 The debtor in the leading case was a pecuniary legatee. The From what 
 debt may be deducted from a share of residue, but not from a S 1 ™- 
 specific devise or bequest (c). 
 
 Where a company was being wound up the same principle was Company 
 applied, and a creditor, who was also a shareholder, was only wmam g" u P- 
 allowed to prove for the balance after deducting the amount due in 
 respect of unpaid calls (d). 
 
 Further, it will be observed that the claimant in the principal Right of 
 case was assignee of the legacy and entitled to no greater right a 881 *? 1166 - 
 than his assignor. But a debt may be contracted upon the footing 
 that an assignee of the debt shall not be bound to allow deductions 
 which would have to be made were the original creditor proceeding 
 against the debtor (e). 
 
 "Where the debtor is executor or one of several executors, the Intention to 
 expression of intention on the part of the testator to forgive the f° r gi Te debt, 
 debt will enable the executor to claim a, benefit under the will 
 without being under the obligation to allow a deduction to be made 
 in respect of the debt (/). 
 
 HOWE v. DARTMOUTH (EARL). (1802) [14] 
 
 [7 Ves. 127 ; 1 Wh. & T. L. C. 68.] 
 
 The testator (amongst other provisions) bequeathed his 
 personal estate to his eldest sister for her life; after her 
 death to the eldest son of Gr. B.; with gifts over to other 
 persons. His personal estate consisted in part of a sum 
 
 (1908), 78 L. J. Ch. 56 ; [1908] 2 (d) Re Auriferous Properties, Ltd. 
 
 Ch. 682. See Turner v. Turner (No. 2) (1898), 67 L. J. Ch. 574 : 
 
 (1911), 80 L. J. Ch. 473 ; [1911] 1 [1898] 2 Ch. 428. 
 
 Ch. 716. " («) Re Goy # Co., Ltd., Farmer v. 
 
 (b) Re Wheeler, Eankinson v. Goy # Co., Ltd. (1900), 69 L. J. Ch. 
 Eayter (1904), 73 L. J. Ch. 576 ; 481 ; [1900] 2 Ch. 149. 
 
 [1904] 2 Ch. 66; Re Abrahams, (/) Re Applebee, Levesonv. Beales 
 
 Abrahams v. Abrahams (1908), 77 (1891), 60 L. J. Ch. 793; [1891] 
 
 L. J. Ch. 578 ; [1908] 2 Ch. 69. 3 Ch. 422. See Re Stewart, Stewart 
 
 (c) Re Akerman, Akerman v. v. McLaughlin (1908), 77 L. J. Ch. 
 Akerman (1891), 61 L. J. Ch. 34; 525; [1908] 2 Ch. 251. 
 
 [1891] 3 Ch. 212. 
 
30 LEADING OASES IN EQUITY. 
 
 of Long Annuities, and a sum of Short Annuities. The 
 testator's eldest sister enjoyed the entire income of the 
 annuities during her life. After her death, the eldest son 
 of G. B. claimed that the annuities should have been 
 converted and invested in Consols, and the income only 
 of the Consols paid to the testator's eldest sister. Lord 
 Eldon held, first, that the bequest of personalty was a 
 residuary bequest; and, secondly, that the eldest sister 
 was only entitled to the actual income produced by an 
 investment of the proceeds of sale in Consols. 
 
 "The rule in Howe v. Lord Dartmouth is, as explained by 
 Sir J. Wigram in Hinves v. Hinves (3 Hare, 609), only a rule applied 
 in the absence of intention, i.e., a rule of administration : bad it 
 been a rule of construction, the extremely slight indications ■which 
 have been held to exclude its operation would scarcely be compatible 
 with its existence as a rule." (Hawkins, Wills, Preface V.) It 
 would be wearisome and unprofitable in an elementary treatise to 
 discuss in detail the numerous cases in which this leading case has 
 been applied or distinguished. It is sufficient to warn the student 
 that some judges, during what may be termed the intermediate 
 period, accepted very slight indications of intention to influence 
 their decisions to exclude the rule. ' ' The rule must be applied 
 unless, upon the fair construction of the will, you find a sufficient 
 indication of intention that it is not to be applied ; the burden in 
 every case being upon the person who says the rule of the Court of 
 Chancery ought not to be apphed in the particular case " (<?). This 
 being the ordinary course pursued by the Court, it will be sufficient 
 to refer by name to some of the more recent cases in which the rule 
 has not been applied, merely observing that the tenant for life 
 possesses a correlative right to have reversionary and therefore non- 
 income bearing properties sold and the proceeds invested so as to 
 produce income (h). 
 Specific gifts. It will be observed, upon referring to the report at large of Howe 
 
 (g) James, L.J., Macdonald v. Ch. D. 42 ; Re Thomas, Wood v. 
 
 Irvine (1877), 47 L. J. Ch. 494 ; 8 TJw,„a$ (1891), 60 L. J. Ch. 731 ; 
 
 Ch. D. 101, 124; Bbinn v. Bell [189i] 3 Ch. 482; Re. Pitcairn, 
 
 (1852), 22 L. J. Ch. 236 ; 2 De G. Brandreth v. Golvin (1895), 65 L.J. 
 
 M. & G. 775. Ch. 120 ; [1896] 2 Ch. 199 ; Re 
 
 (h) Re Chancellor, Chancellor v. Bland, Miller v. Bland (1899), 68 
 
 Broun (1884), 53 L. J. Ch. 443 ; 26 L. J. Ch. 745 ; [1899] 2 Ch. 336. 
 
ADMINISTRATION. 31 
 
 v. Dartmouth {Earl) (i), that Lord Eldon restricted the rule to a 
 gift of residue. He says: "The cases alluded to, where personal 
 estate has been taken to be specifically given, do not apply " (k). 
 
 It does not apply where property is to be enjoyed by persons in Settlement 
 succession under a settlement made by deed (I). by deed. 
 
 The rights of the parties are adjusted on the footing of a proper Adjustment 
 conversion having been made. Thus, where trustees were of rights, 
 empowered to sail the testator's ships for the benefit of his 
 estate, which obtained large pecuniary benefits from the exercise of 
 the power, the tenants for life were held entitled to interest at 
 4 per cent, on the value of the ships at the testator's death, the 
 excess of the earnings over this sum being invested as capital of the 
 testator's estate, to the income of which the tenants for life also 
 became entitled (m). So where part of the testator's property 
 consisted of a mine of which the trustees granted a, lease under a 
 power given to them by the will, and in exercise of another power 
 postponed the sale of the estate under a trust for conversion, the 
 tenants for life were held entitled to the income upon the 
 footing of an actual conversion and investment, and the sum by 
 which the rents and royalties exceeded this sum was treated as 
 capital (n). So where a reversionary fund is not converted, and 
 subsequently falls into possession, the rights of the parties are 
 adjusted on the footing of a hypothetical conversion, and the tenant 
 for life or his representative becomes entitled to a share of capital (o). 
 
 Investments which are authorized, but of a hazardous character, Hazardous 
 need not be converted ; in that case the tenant for life is entitled to investments, 
 the actual income (p). 
 
 Bonus payments by trading concerns give rise to a similar Bonus. 
 question, namely, whether they are to be treated as capital or 
 income of the estate. This in no sense depends upon the rule in 
 Howe v. Dartmouth (Earl), but upon the nature of the trans- 
 
 (i) Howe v. Dartmouth (Earl), (n) Wentworth v. Wentworth 
 
 7 Vea. 137, 149 ; 1 Wh. & T. L. C. (1899), 69 L. J. P. C. 13 ; [1900] 
 
 68. A. C. 163. 
 
 (k) Bethunev. Kennedy (1835), 1 (o) Re Chesterfield's (Earl) Trusts 
 
 M. & Cr. 114. It is doubtful if (1883), 52 L. J. Ch. 958 ; 24 Ch. D. 
 
 the reasoning in this case would be 643. As to the rate of interest, 
 
 applied at the present day: see see Rowllsy. Bebb (1900), 69 L. J. 
 
 Fairer v. Park (1876), 45 L. J. C. Ch. 562 ; [1900] 2 Ch. 107. 
 
 760; 3 Ch. D. 309. (p) Re Bates, Hodson v. Bates 
 
 (I) Re Van Straubenzee, Boustead (1906), 76 L. J. Ch. 29; [1907] 1 
 
 v. Cooper (1901), 70 L. J. Ch. 825 ; Ch. 22 ; Re Wilson, Moore v. Wilson 
 
 [1901] 2 Ch. 779. (1907), 76 L. J. Ch. 210 ; [1907] 1 
 
 (m) .BrowiMV. (?«««% (1867), L.R. Ch. 394; Re Nicholson, Eade v. 
 
 2Ch.751. Nicholson (1909), 7S L. J. Ch. 516 ; 
 
 [1909] 2 Ch. 111. 
 
32 LEADING GASES IN EQUITY. 
 
 action (q). So a tenant for life is entitled to any casual profit, 
 unless the settlement makes any other provision as to its dis- 
 position (r). 
 
 Advancement. 
 
 [15] DYER v. DYER. (1788) 
 
 [2 Cox, 92 ; 2 Wh. & T. L. C. 803, 7th ed.] 
 In this case a father purchased copyholds, for which 
 he paid the entire purchase-money, and took an admittance 
 in the names of himself, his wife and his son William; 
 the effect of the grant, according to the custom of the 
 manor, was that the parties named in. the admittance took 
 in succession for their lives, and the longest liver of them 
 took absolutely. The testator survived his wife and de- 
 vised these copyholds to the plaintiff, who claimed that 
 he was entitled to them as against William, upon the foot- 
 ing that there was a resulting trust in favour of the 
 testator, who had paid the whole of the purchase-money, 
 but the title of William was established as against the 
 devisee. In the course of his judgment, Eyre, C.B., laid 
 down the following rules as a result of the cases, and 
 this ruling has never since been doubted or departed from. 
 " The clear result of all the cases, without a single ex- 
 ception, is, that the trust of a legal estate, whether free- 
 hold, copyhold, or leasehold; whether taken in the names 
 of the purchasers and others jointly, or in the name of 
 others without that of the purchaser; whether in one name 
 or several; whether jointly or successive-, results to the 
 
 ( ? ) Boueh v. Spronh (1887), 66 [1907] 1 Ch. 289. 
 
 L. J. Ch. 1037 ; 12 App. Cas. 385 ; (r) Brigstockev. Brigstocke (1878), 
 
 Re Armitage. Armitage v. Armitage 47 L. J. Ch. 817 ; 8 Ch. D. 357. 
 
 (1893), 63 L. J. Ch. 110 ; [1893] 3 See Re Harrison.. Harrison v. Har- 
 
 Ch. 337 ; Re Fiercy, Whitwham v. rison (1885), 54 L. J. Ch. 617; 28 
 
 Piercy 1906), 76 L. J. Ch. 116; Ch. D. 220. 
 
ADVANCEMENT. 33 
 
 man who advances the purchase-money. ... It is the 
 established doctrine of a Court of Equity, that this re- 
 sulting trust may be rebutted by circumstances in evi- 
 dence. The cases go one step further, and prove that 
 the circumstance of one or more of the nominees being 
 a child or children of the purchaser, is to operate by re- 
 butting the resulting trust; and it has been determined 
 in so many cases, that the nominee being a child shall 
 have operation as a circumstance of evidence, that we 
 should be disturbing landmarks if we suffered either of 
 these propositions to be called in question, namely, that 
 such circumstance shall rebut a resulting trust, and that 
 it shall do so is a circumstance of evidence. . Con- 
 
 sidering it as a circumstance of evidence, there must be, 
 of course, evidence admitted on the other side." 
 
 It appears from a perusal of trie principal case that Lord Children 
 Nottingham introduced, and Lord Hardwicke recognized, a previously 
 qualification upon the broad doctrine, that the fact that the child 
 in whose name the conveyance was taken had been previously- 
 advanced, i.e., benefited by some previous gift or provision by the 
 parent to a greater extent than his brothers or sisters, was a 
 circumstance rebutting the presumption that there was an 
 advancement and not a resulting trust. This qualification, after a 
 chequered career, terminated its existence many years ago, the 
 funeral oration being pronounced in 1870 (s). The equitable 
 presumption regarding double portions (t) supplies a close 
 analogy. 
 
 The principal case arose upon a purchase by a father. But a Pm-chase by 
 mother is not considered in equity to be bound by any moral a person in 
 obligation to provide for a child, as is the case with » father; 0C0 P arent ^- 
 accordingly a purchase by a mother in the name of a child is 
 regarded prima facie as a case of resulting trust (a). But a person 
 may place himself in loco parentis to another, and a mother is in 
 
 (s) Hepworlhv. Hepuwrth (1870), («) Bennet v. Bennet (1879), 10 
 
 40 L. J. Ch. Ill ; L. E. 11 Eq. 10. Ch. D. 474. 
 (t) See post, p. 152. 
 
 R. D 
 
34 
 
 LEADING OASES IN EQUITY. 
 
 Husband 
 and wife. 
 
 Relationship 
 of parties 
 not con- 
 clusive. 
 
 Property to 
 which applic- 
 able. 
 
 Admissibility 
 of evidence. 
 
 this category (a;), and -where this is the case, the presumption is 
 that an advancement, and not a trust, was intended (y). 
 
 A purchase by the husband in the name of his wife is regarded 
 as an advancement, although the marriage is declared to be void 
 subsequently (z). 
 
 A complete out-and-out gift may be made, and if made cannot 
 be recalled upon the ground that the donee is » stranger (a). 
 Conversely, a resulting trust may arise upon a gift or conveyance 
 to a son (b), or by a wife to her husband (c). And where by reason 
 of a son acting as legal adviser to his mother, a rule of equity 
 displaced free agency on her part, a resulting trust was engrafted 
 upon a gift by her to that son (d). The matter resting in evidence, 
 the whole transaction is looked at (e), and according to the evidence 
 the person advancing part only of purchase-money may be held to 
 have a charge to that extent (/), or a donee may be held to 
 take absolutely subject to a life interest in the donor (g). 
 
 In the principal case, the property purchased was land of copy- 
 hold tenure (h). The rule is equally applicable where the land 
 purchased is freehold (i) or a chattel real (k). Purchases or gifts of 
 pure personalty are also subject to the same rule(Z); and as the 
 modern Merchant Shipping Acts recognize trusts and equities, and 
 permit them to be enforced, the same principle is now applicable to 
 the case where a stranger advances part of the purchase-money of 
 a ship (m). 
 
 The admissibility of evidence, which is adverted to in the passages 
 quoted from the judgment of the Chief Baron, in order to rebut the 
 
 (x) Sayre v. Hughes (1868), 37 
 L. J. Ch. 401 ; L. B. 5 Eq. 376 ; 
 Re Orme, Evans v. Maxwell (1883), 
 50 L. T. 51. 
 
 (y) Batstone v. Salter (1875), 44 
 L. J. Ch. 760 ; L. R. 10 Ch. 431 ; 
 Standing v. Bowring (1885), 55 L. J. 
 Ch. 218; 31 Ch. D. 282; post, 
 p. 77. 
 
 (z) Dunbar v. Dunbar (1909), 79 
 L. J. Ch. 70 ; [1909] 2 Ch. 639. 
 
 (a) Standing v. Bowring (1885), 
 55 L. J. Ch. 218 ; 31 Ch. D. 282; 
 post, p. 77. 
 
 (J) Ohilders v. Childers (1857), 26 
 L. J. Ch. 743 ; 1 De G. & J. 482 ; 
 Worthington v. Curtis (1875), 45 
 L. J. Ch. 249; 1 Ch. D. 419. 
 
 (e) Mercier v. Herder (1903), 72 
 L.J. Ch. 511; [1903] 2 Ch. 98. 
 
 (d) Garrett v. Wilkinson (1848), 
 2 T)e G. & Sm. 244. See Re dumber, 
 Ooomber v. Coomber (1911), 80 L.J. 
 
 Ch. 399 ; [1911] 1 Ch. 723. 
 
 (e) See Mercier v. Mercier (1903), 
 72 L. J. Ch. 511; [1903] 2 Ch. 
 98. 
 
 (/) The Venture (1908), 77 L. J. 
 P. 105 ; [1908] P. 218. 
 
 (g) Standing v. Bowring (1885), 
 55 L. J. Ch. 218 ; 31 Ch. D. 282 ; 
 post, p. 77. 
 
 (h) See also Finch v. Finch 
 (1808), 15 Ves. 43. 
 
 [i) Grey v. Greg (1677), 2 Swanst. 
 594 ; Christy v. Courtenay (1850), 
 13 Beav. 96. 
 
 (k) Jennings v. Selleck (1687), 
 1 Vern. 467. 
 
 (I) Re Orme, Evans v. Maxwell 
 (1883), 50 L. T. 51 ; Re Policy 
 -No. 6402 of the Scottish Equitable 
 Life Assce. (1901), 71 L. J. Ch. 
 189 ; [1902] 1 Ch. 282. 
 
 (m) The Venture (1908), 77 L. J. 
 P. 105; [1908] P. 218. 
 
ADVANCEMENT. 35 
 
 presumption of a resulting trust, rests upon the express terms of 
 tie Statute of Frauds. Sect. 1 requires "all declarations or 
 creations of trusts or confidences of any lands, tenements or 
 hereditaments " to be "manifested and proved by some writing 
 signed by the settlor or by his will," but sect. 8 excepts from the 
 operation of the statute conveyances ' ' of any lands or tenements 
 by which a trust or confidence shall or may arise or result by the 
 implication or construction of law." Where the property affected 
 does not fall within the category of " lands, tenements or heredita- 
 ments,'' a verbal declaration of trust is effective (ra). 
 
 Where the declarations of the alleged donor are offered in Rebutting 
 evidence to rebut the presumption of an advancement or of a P re9um P"on. 
 resulting trust, they are restricted to antecedent if not too remote, 
 or contemporaneous expressions or acts (o), but matters subse- 
 quently arising are equivocal, and may only show a change of 
 intention, and are not admissible (p) unless they are directed to 
 show that a party stood in loco parentis. On the other hand, the 
 declarations of the donee, subsequent to the transaction, are 
 admissible to establish a resulting trust (q). 
 
 The retention of what maybe termed compendiously " documents Matters of 
 of title," as a copy of the Court rolls (r) or a policy of insurance (a), evldenoe - 
 is a circumstance of evidence. Evidence of acts of ownership on 
 the part of the donor are not conclusive to rebut an advancement, as 
 the donor may reserve a life interest to himself (*) ; or the receipt 
 of the income may be "an act of reverence and good manners" on 
 the part of the donee to permit the donor to receive it(u); or it 
 may be justified where the donee is an infant, as a receipt by a 
 guardian (x). 
 
 (») Cochrane v. Moore (1890), ing v. Bmcring (1885), 55 L. J. Ch. 
 
 59 L. J. Q. B. 377 ; 25 Q. B. D. 218 ; SI Ch. D. 282 ; post, p. 77. 
 57. (r) Skeats v. Skeats (1842), 12 
 
 (o) Prankerd v. Prankerd (1820), L. J. Ch. 22 ; 2 T. & C. Ch. 9. 
 1 Sim. & St. 1 ; Chri-ty v. Com- («} Se Policy No. 6402 of the 
 
 tenay (1850), 13 Beav. 96; Childers Scottish Equitable Life Assce. (1901), 
 
 v. Childers (1857), 26 L. J. Ch. 71 L. J. Ch. 189; [1902] 1 Ch. 
 
 743 ; IDe&.&J. 482 ; Williams 282. 
 v. Williams (1863), 32 Beav. 370. (t) Stock v. McAvoy (1872), 42 
 
 (p) Murless v. Franklin (1818), L.J. Ch. 230; L. R. 15 Eq. 55. 
 
 1 Swanst. 13; Sidmouth v. Sid- See Standing v. Bowring (1885), 55 
 
 mouth (1840), 9 L.J. Ch. 282; 2 L. J. Ch. 218; 31 Ch. D. 282; 
 
 Beav. 447 ; Skeats v. Skeats (1842), post, p. 77. 
 12 L. J. Ch. 22 ; 2 T. & C. Ch. 9. («) Stamp Duties (Commr.) v. 
 
 (q) Sidmouth v. Sidmouth (1840), Byrnes (1911), 80 L. J. P. C. 114; 
 
 9 L. J. Ch. 282; 2 Beav. 447; [1911] A. C. 386. 
 Batstone v. Salter (187^), 44 L.J. (x) Currant v. Jago (1844), 1 
 
 Oh. 760 ; L. R. 10 Ch. 431 ; Stand- Coll. 261. 
 
 d2 
 
36 
 
 LEADING CASES IN EQUITY. 
 
 Fraudulent 
 settlement. 
 
 Other 
 matters. 
 
 Although a child is in a sense a purchaser, a purchase in his 
 name may be void as a fraud upon creditors within the statute 
 13 Eliz. c. 5 (y). 
 
 Advances made by a parent to a child have to be brought into 
 account before the share of child under the Statute of Distributions 
 can be ascertained (zs) ; this is obviously not within the principle of 
 the leading case. Payments of a similar character must be accounted 
 for under the doctrine of double portions ; this branch of the law is 
 dealt with elsewhere (a). 
 
 Assignment {Equitable) [b\ 
 
 [16] HOLROYD v. MARSHALL. (1862) 
 
 [10 H. L. 0. 191 ; 33 L. J. Ch. 193 ; 7 L. T. 172 ; 11 W. E. 171.] 
 A manufacturer, who was in monetary difficulties, sold 
 all the machinery at his mill to the appellants. The 
 machinery was. conveyed by deed to a third person, as 
 trustee for all parties, subject to the right of the manu- 
 facturer to repurchase the machinery. One of the pro r 
 visions of the deed was a covenant to convey any " added 
 or substituted machinery, implements and things," fixed 
 or placed in or about the mill. The deed was held to 
 be a valid equitable assignment of the existing machinery, 
 and conferred an equitable interest in the added or sub- 
 stituted machinery, as and when acquired; accordingly, 
 that the appellants had a better title than the execution 
 creditor under a judgment against the manufacturer. 
 
 Two points in It will be observed that the leading case involves two points : — 
 Eolroydj. ^ The form of an equitable assignment ; (2) the subject-matter of 
 an equitable assignment. 
 
 (y) Christy v. Courtenay (1850), 
 13 Beav.96; Barrack v. McGnlloch 
 (1856), 26 L. J. Ch. 105 ; 3 K. & 
 J. 110. 
 
 (z) Re Blockley, Blocklty v. Block- 
 ley (1885), 64 L. J. Ch. 722 ; 29 
 Ch. D. 250. 
 
 (a) See post, p. 152. 
 
 (6) As to assignments of choses 
 in action under the Judicature 
 Aft, 1873, see Brice v. Bannister 
 (1878), Shirley, Leading Cases in 
 the Common Law, 394 ; 3 Q. B. D. 
 669. 
 
ASSIGNMENT {EQUITABLE). 37 
 
 Writing was not necessary to the validity of an equitable assign- Writing not 
 ment (c). In some cases it has been provided that the agreement ne08S8ar 7- 
 shall not be enforced unless there be proof in writing, as by the 
 Statute of Frauds, but even in this case it is the verbal assignment 
 which is operative, and the agreement takes effect from that date (d). 
 
 No particular form of instrument or of words is necessary to Form of 
 constitute an equitable assignment (e). It is beyond the scope of assignment in 
 this elementary treatise to deal in detail with the various forms of 
 expression which have amounted to an equitable assignment, 
 further than to warn the student that he must carefully distinguish 
 between these and words which have been held to be no more than 
 a revocable mandate (/). A document may be operative as an 
 equitable assignment, although it would not entitle the assignee to 
 sue in his own name, which he would be entitled to do if operative 
 as an assignment under sect. 25 of the Judicature Act, 1873 (g). 
 
 The leading case also confirms the doctrine that a possibility may Subject- 
 be assigned. The leading case usually referred to for this proposi- matter, 
 tion is Warmstrey v. Tanfield {Lady) (h). A chose in action may 
 also be assigned (t). An assignment of " all the book debts .... 
 which may during the continuance of this security become due or 
 owing to the said mortgagor " is valid and sufficiently definite, and 
 will include book debts of a business carried on by the mortgagor 
 as well after as at the time of the assignment (k). A Court of 
 Equity did not recognize the validity of an assignment of a 
 cause of action, or res litigiosa, any more than did a Court of 
 law {I). In permitting a chose in action to be assigned, the Court 
 
 (c) Gurnell v. Gardner (1863), 4 Chitty, L.J., to which the other 
 
 Griff. 626. Lords Justices assented. 
 
 Id) Re Holland, Gregg v . Holland (h) Warmstrey v. Tanfield {Lady) 
 
 (1902), 71 L. J. Ch. 518; [1902] (1629), 1 Ch. Rep. 29; 1 Wh. & 
 
 2 Ch. 360. T. L. C. 93. An historical account 
 
 («) Lambe v. Orton (1860), 29 of the development to the law of 
 
 L. J. Ch. 319; 1 Dr. & Sm. 125; assignability of equitable interests 
 
 Bennett v. Cooper (1846), 15 L. J. will be found in Voyle v. Hughes 
 
 Ch. 315 ; 9 Beav. 252 ; Bentley v. (1854), 23 L. J. Ch. 238 ; 2 Sm. & 
 
 ■ (1851), 15 Beav. 12; Bur- G. 18. 
 
 ham Bros. v. Robertson (1898), 67 {%) Row v. Dawson (1749), 1 Ves. 
 
 L. J. Q. B. 484 ; [1898] 1 Q. B. Sen. 331 ; 1 Wh. & T. L. C. 
 
 765 ; Alexander v. Steinhardt, Wal- 95. 
 
 leer & Co. (1903), 72 L. J. K. B. (k) Tailby v. Official Receiver 
 
 490 ; [1902] 2 K. B. 208. (1888), 58 L. J. Q. B. 75 ; 13 App. 
 
 (/) Scott v. Forcher (1817), 3 Cas. 523. 
 
 Mer 652; Exp. Hall (1879), 48 {I) Trosserv. Edmonds (1835), 1 
 
 L. J. Bk. 79 ; 10 Ch. D. 615. Y. & C. Ex. 481 ; De Hoghton v. 
 
 (a) Durham Bros. v. Robertson Money (1866), L. R. 2 Ch. 164; 
 
 (1898), 67 L. J. Q. B. 484; [1898] Hill v. Boyle (1867), L. R. 4 Eq. 
 
 1 Q B 765. See the judgment of 260 ; Re Paris Skating Rmh Co. 
 
 (1877), 5 Ch. D. 959. 
 
38 
 
 LEADING CASES IN EQUITY. 
 
 Assignee 
 takes subject 
 to equities. 
 
 Parties to 
 action by 
 assignee. 
 
 of Chancery did not disregard this principle, as the majority of 
 persons pay their debts without suit. It was because the bringing 
 of an action is a mere incident and not a necessary consequence of 
 the assignment, that the assignment was permitted. This distinc- 
 tion, which the student should bear in mind, finds its best illustra- 
 tion in the decision of Wigram, V.-C, a very able equity judge, in 
 Wilson v. Shurt (m). In that case brokers had delivered to their 
 principal bought notes in which the name of the seller was not 
 disclosed, intending, in fraud of their principal (n), themselves to 
 execute the contract. The principal deposited these notes with the 
 plaintiffs to put him in funds necessary to pay the deposit in part 
 payment of the price. Before the contract was completed by pay- 
 ment of the balance of the purchase-money, and the delivery of the 
 iron which was the subject-matter of the contract, a transaction 
 took place between the plaintiffs, the principal and the brokers, 
 which the judge found as a fact was an agreement by the plaintiffs 
 to waive their priority in order to enable the principal to find 
 further money. In this attempt he was unsuccessful, and the 
 plaintiffs were allowed to recover from the brokers the amount of 
 the deposit. In the course of his judgment (o), the learned judge 
 pointed out that as both the principal and the plaintiffs were 
 ignorant of the position which the brokers occupied, and that 
 they were dealing upon the footing of a contract valid on the face 
 of it, the fact that, on subsequently discovering the truth, they 
 were able to repudiate the contract and sue for a return of the 
 money, did not involve illegality on the ground of champerty. 
 
 In equity the general rule is that an assignment confers no 
 greater rights upon the assignee than the assignor possessed, 
 unless there be a contract varying the rule (p). There is another 
 exception in the case of mortgages, a topic to be dealt with here- 
 after. An assignment for which the assignee has not given any 
 consideration, will not be enforced in equity if imperfect (<?). 
 
 In the case of an assignment under sect. 25, sub-s. 6, of the 
 Judicature Act, 1&73, the assignee may sue in his own name. 
 This topic has been adequately discussed, Shirley, Leading Cases, 
 
 (m) Wilson v. Short (1848), 17 
 L. J. Ch. 289 ; 6 Hare, 366. 
 
 (m) See tit. Fraud, post, p. 69. 
 
 (o) 17 L. J. Ch. 289 ; 6 Ha. at 
 p. 384. 
 
 (p) Courtenay v. Williams (1844 
 —1846), 13 L. J. Ch. 461; 3 
 Ha. 539 ; affd. 15 L. J. Ch. 204 ; 
 ante, p. 28 ; Cockell v. Tnylor 
 (1852), 21 L. J. Ch. 545 ; 15 Beav. 
 
 103; Re Goy % Co., Ltd., Farmer 
 v. Goy S; Co., Ltd. (1900), 69 L. J. 
 Ch. 481 ; [1900] 2 Ch. 149. See 
 Stoddartv. Union Trust, ltd. (1911), 
 81 L. J. K. B. 140 ; [19121 1 K. B. 
 181. 
 
 (g) Ward v. Audland (1845), 14 
 L. J. Ch. 145 ; 8 Beav. 201 ; Re 
 Patrick, Bills v. Tatham (1890), 60 
 L. J. Ch. Ill ; [1891] 1 Ch. 82. 
 
ASSIGNMENT (EQUITABLE). 39 
 
 at p. 394. In the case of assignments which do not fall within 
 this section the assignee must either sue in the name of the 
 assignor, or make him a party to the proceedings (?■). 
 
 The necessity for and effect of notice as affecting title and Notice of 
 priorities will be discussed in the next section. assignment. 
 
 DEARLE v. HALL ; LOVERIDGE v. COOPER. [17] 
 
 (1823—1828) 
 [3 Euss. 1.] 
 
 The question involved in these two cases was practi- 
 cally the same. In the first a person mortgaged an 
 annuity to which he was entitled in possession to secure 
 advances, and subsequently sold the annuity to a person 
 who had no notice of the prior transactions. In the 
 6econd case the fund was contingent and reversionary. 
 In each case the purchasers gave notice to the trustees 
 of the assignment to them before the mortgagees gave 
 notice to the trustees of their charges. Sir T. Plummer, 
 M.R., held that the maxim qui prior estin tempore, potior 
 est in jure, was displaced by the superior diligence of the 
 purchasers in giving notice to the trustees of the assign- 
 ment, and that having no notice of the prior title of the 
 mortgagees who had given to the trustees no notice of 
 their charges, had gained priority. The titlo of the 
 purchasers was confirmed by Lord Lyndhurst, L.C., 
 upon appeal. 
 
 The doctrine of Dearie v. Hall, as it is called, has no application Property to 
 where the subject-matter of the assignment is land(s). But where which the rule 
 the interest in real estate "can only reach the hands of the 
 
 (r) Keys v. Williams (1839), 3 (s) Re Richards, Humber v. 
 
 T. & C. Ex. 462; Hammond v. Richards (1890), 59 L. J. Ch. 728 ; 
 
 Messenger (1838), 7 L. J. Ch. 310 ; 45 Ch. D. 589 ; Hopkins v. Hems- 
 
 9 Sim. 327; Durham Bros. v. worth (1898), 67 L. J. Ch. 526; 
 
 Robertson (1898), 67 L. J. Q. B. [1898] 2 Ch. 347; Taylor v . London 
 
 484 ; [1898] 1 Q. B. 765. and County Bank (1901), 70 L. J. 
 
 Ch. 477; [1901] 2 Ch. 231. 
 
40 
 
 LEADING CASES IN EQUITY. 
 
 with notice. 
 
 Effect of 
 notice. 
 
 Dealings with 
 assignor. 
 
 Form of 
 notice. 
 
 beneficiary or assignor in the shape of money " (<), the doctrine is 
 applicable ; as in the case of an interest in the proceeds of sale of 
 land devised upon trust for conversion (u), or in a sum of money to 
 be raised by the demise, sale, or mortgage of a term of years in 
 land limited to trustees for that purpose (a;). 
 
 A person taking with notice of a prior claim is bound thereby, 
 whether the person having the earlier title has or has not perfected 
 his title by giving formal notice or what is equivalent thereto (y). 
 
 The doctrine of notice only affects priority. As between the 
 immediate parties, the title of the assignee is complete whether 
 notice has or has not been given to the trustee (z), or to the 
 debtor (a) ; and the title is as complete where the assignment is 
 voluntary, as where it is for value (6). An assignor receiving the 
 subject-matter of the assignment must account for it (c). A person 
 who can claim no higher title than the assignor (as is the case of 
 his judgment creditor) does not gain priority by priority of notice (d). 
 
 Until the trustee or debtor has notice of the assignment he may 
 continue to deal with the original beneficiary or creditor, as if he 
 was still entitled, and any payment or dealing with him will operate 
 as a valid discharge either in the whole or in part as against the 
 assignee to the same extent as if the original beneficiary or creditor 
 were still entitled (e). The notice must be of an actual assignment ; 
 a trustee (or debtor) is not bound to act upon notice of an inchoate 
 transaction, which may or may not be completed, although, in the 
 event, the transaction is carried through (/). 
 
 In order to obtain priority it is not imperative to give a formal 
 notice to the trustee. Thus, where the trustee of a fund read in 
 
 (t) See per Lord Macnaghten, 
 Ward v. Buncombe (1893), 62 L. J. 
 Ch. 881 ; [1893] A. C. 3G9, 390. 
 
 («) Foster v. Cockerell (1835), 3 
 CI. & V. 456 ; Lloyds Bank v. Pear- 
 son (1901), 70 Xj. J. Ch. 422; [1901] 
 1 Ch. 865. 
 
 (it) Re Hughes' Trusts (1864), 33 
 L. J. Ch. 725 ; 2H.&I. 89. 
 
 (y) Newman v. Newman (1885) 
 54 L. J. Ch. 598; 28 Ch. D. 674 
 Re Holmes (1885), 55 L. J. Ch. 33 
 29 Ch. D. 786. See Mutual Life 
 Assce. v. Lang/eg (1884), 53 L. J. 
 Ch. 996 ; 26 Ch. D. 686. 
 
 (z) Burn v. Canalho (1840), 9 
 L. J. Ch. 65 ; 4 M & Cr. 690. 
 
 (a) Gorringe v. Irwell India Rub- 
 ier and Gutta Percha Works (1886), 
 56 L. J. Ch. 85; 34 Ch. D. 128. 
 
 (4) Hughes v. Walmesley (1831), 
 
 12 Jur. 834, n. ; Re Way's Trusts 
 (1864), 34 L. J. Ch. 49 ; 2 De G. J. 
 & S. 365. 
 
 (c) Re Patrick, Bills v. Tatham 
 (1890), 60 L. J. Ch. Ill ; ri8911 
 
 1 Ch. 82. 
 
 (d) Arden v. Arden (1885), 54 
 L. J. Ch. 655; 29 Ch. D. 702. 
 
 (e) Leslie v. Baillie (1843), 12 
 L. J. Ch. 153; 2 Y. & C. Ch. 91; 
 Phipvsv. Lovegrove (1873), 48 L. J. 
 Ch. 892; L. R. 16 Kq. 80, cases of 
 trust; Stocks v. Bobson (1853), 22 
 L. J. Ch. 884 ; 4 De G. M. & G. 
 1 1, an assignment of a deht. 
 
 (/) Cothay v. Sydenham (1788), 
 
 2 Bro. C. C. 391 ; Shaw v. Foster 
 (1872), 42 L. J. Ch. 49; L. E. 5 
 H. L. 321 ; Williams v. Williams 
 (1881), 17 Ch. D. 437. 
 
ASSIGNMENT {EQUITABLE). 41 
 
 a newspaper a notice of an application for a discharge by his 
 beneficiary to the Insolvent Debtors' Court, and acted upon the 
 information that he thus obtained, the assignee in the insolvency, 
 who had given no notice of his appointment, was held to have 
 priority over an assignee for value from the beneficiary whose title 
 accrued, and whose notice was given after the trustee had acquired 
 this knowledge (g). 
 
 Any person taking an interest in the subject-matter of the Notice by- 
 assignment, as in the case of a beneficiary under an assignment in whom, 
 trust, may give notice and thus postpone a person claiming under 
 an earlier assignment of the same fund (h). 
 
 A notice to be effective for the purpose of fixing priority must To whom 
 be given after the fund assigned reaches the hands of the trustees (£). notice should 
 And where the assignment is of an interest in a fund settled by a 
 derivative settlement, the notice must be given to the trustees of 
 that settlement and not to the trustees of the original settlement (k). 
 Where the assignor is sole trustee, or one of two or more trustees, 
 his knowledge of the assignment is not sufficient to alter priorities^). 
 Notice to one of several trustees, not being himself the assignor, is 
 effective for that purpose so long as the trustee to whom notice was 
 given remains a trustee of the fund (m) ; but if the trustee to whom 
 notice is given dies, notice of a subsequent assignment given to the 
 then existing trustees will take priority over the earlier assign- 
 ment («). Where priority has been obtained by notice given to all 
 the then trustees, that priority is not displaced by reason of their 
 all ceasing to act and new trustees being appointed in their place, 
 to whom notice of a subsequent assignment is given (o). But the 
 new trustees, although perhaps bound to peruse documents relating 
 to the trust with a view to ascertain whether written notices 
 have been given, are entitled to deal with beneficiaries according 
 to their rights as known to them, or subject only to those assign- 
 ments as would have appeared upon an inspection of the documents 
 handed over to them (p). 
 
 (g) Lloyd v. Banks (1868), 57 L. J. Ch. 365 ; [1904] 2 Ch. 385. 
 Xj. J. Ch. 881 ; L. B,. 3 Ch. 988. (»») Meux v. Bell (1841), 11 L. J. 
 
 (h) Exp. Cavendish (1902), 72 Ch. 77 ; 1 Hare, 73 ; Ward v. Dun- 
 
 L. J. K. B. 117; [1903] 1 K. B. combe (1893), 62 L. J. Ch. 881 ; 
 
 151. [1892] A. C. 369. 
 
 (i) Buller v. Rlunket (1860), 30 («) Timson v. Eamsbottom (1837), 
 
 L. J. Ch. 641 ; 1J. & H. 441 ; In 2 Keen, 35 ; Re Phillips' Trusts 
 
 re Dallas (1904), 73 L. J. Ch. 365 ; (1902), 72 L. J. Ch. 94 ; [1903] 1 
 
 [1904] 2 Ch. 385. Ch. 183. 
 
 (k) Stephens v. Green (1895), 64 (o) Re Wasdale, Brittin v. Part- 
 
 L. J. Ch. 546 ; [1895] 2 Ch. 148. ridge (1898), 68 L. J. Ch. 117 ; 
 
 (/) Browne v. Savage (1859), 4 [1899] 1 Ch. 163. 
 Drew. 635; Re Dallas (1904), 73 (p) Phipps v. Zovegrove (1873), 
 
42 
 
 LEADING 0A8E8 IN EQUITY. 
 
 Personal 
 liability of 
 trustee. 
 
 A trustee is bound to furnish a beneficiary with particulars of 
 the trust fund (q), but an assignee is not a beneficiary until after 
 the assignment is executed. A trustee need not give any informa- 
 tion as to notices of assignments which he has received, either to 
 his beneficiary or to a person intending to purchase, or lend money 
 upon the security of, a beneficial interest, and if he does furnish 
 information respecting these notices, he is only liable for false- 
 statements if they are made fraudulently (r). 
 
 Boundaries. 
 
 [18] WAKE v. CONYERS. (1759) 
 
 [1 Eden, 331 ; 1 Wh. & T. L. C. 181.] 
 In this case a bill was filed on behalf of infants, being- 
 tenants in tail, by their next friend, alleging the cutting 
 of trees growing on the boundary between two manors, 
 and praying a commission to ascertain boundaries. Lord 
 Northington, L.K., dismissed the bill upon the ground 
 that there was a sufficient remedy at law, and no original 
 jurisdiction in equity. 
 
 The principle of the decision is thus stated by Sir W. Grant, 
 M.E. : " In the same case of Wake v. Conyers, Lord Northington 
 says that, in his apprehension, this Court has simply no jurisdic- 
 tion to settle the boundaries even of land, unless some equity is 
 superinduced by act of the parties. I concur in that opinion, and 
 think that the circumstance of a confusion of boundaries furnishes, 
 per se, no ground for the interposition of the Court " (s). 
 Leaseholds. A tenant is bound to preserve the boundary between his own 
 
 land and that of his landlord, and if he fails to do so a commission 
 will issue to ascertain the boundaries, and if that be not possible, 
 setting out lands of the tenant of equal value (t). 
 
 48 L. J. Ch. 892 ; L. R. 16 Eq. 80 ; 
 Sallows v. Lloud (1888), 58 L. J. Ch. 
 105 ; 39 Ch. D. 680. 
 
 (a) Se Dartnall, Sawyer v. God- 
 dard (1895), 64 L. J. Ch. 341; 
 [1895] 1 Ch. 474. 
 
 (r) Low v. Bouverie (1891), 60 
 L. J. Ch. 594 ; [1891] 3 Ch. 82. 
 
 (s) Sneer v. Crawter (1817), 2 
 Mer. at p. 418 ; Godfrey v. Liitell 
 (1829), Taml. 221 ; affd. (18311, 2 
 Russ. & M. 630. 
 
 (0 Att.-Ge.it. v. Stephens (1855), 
 25 L. J. Ch. 888 ; 6 De a. M. & 
 Gr. Ill ; Spike v. Harding (1878), 
 47 L. J. Ch. 323 ; 7 Ch. D. 871. 
 
BOUNDARIES. 43 
 
 The lord of a manor may have the boundaries of a copyhold tene- Copyholds, 
 ment ascertained, with a view to enable him to seize quousgue to 
 enforce the incidents of tenure (u). 
 
 Chattels. 
 
 PUSEY v. PUSEY. (1684) [191 
 
 [1 Vern. 273 ; 2 Wh. & T. L. 0. 454, 7th ed.] 
 
 SOMERSET (DUKE) v. COOKSON. (1735) 
 [3 P. Wms. 390; 2 Wh. & T. L. C. 455, 7th ed.] 
 
 In the first case Sir Francis North, L.K., held that he 
 had jurisdiction to order an ancient horn, an emblem of 
 the tenure of certain lands, to be delivered up to the heir. 
 
 In the second case Lord Talbot overruled a demurrer 
 to a bill by the lord of the manor, claiming to have a 
 valuable silver antique altar, which was treasure trove, 
 delivered up to him "in specie, undefaced," as the re- 
 porter states. 
 
 These two cases deal with the delivery of chattels ; the cases 
 relating to the specific performance of a contract to sell chattels is 
 discussed elsewhere. 
 
 An order was made upon a retiring overseer to deliver up to his 
 successor " a silver tobacco box inclosed in two large silver cases, 
 all of which were adorned with several engravings of public trans- 
 actions, and heads of distinguished persons " (x). An agreement 
 entered into between parties relating to the division of illustrated 
 catalogues was specifically enforced (y). A fiduciary relation 
 existing between the parties has been regarded as affording an 
 additional reason for exercising this jurisdiction (z). 
 
 (u) Leeds (Bulce) Y.Strafford (Earl) (y) Lingen v. Simpson (1824), 1 
 
 (1798), 4 Ves. 180. See Basing- Sim & S. 600. 
 
 stoke (Corp.)v. Bolton (lord) (1854), (z) Wood v. Eowcliffe (1844), 13 
 
 3 Drew. 50 ; Searle v. Cooke (1890), L. J. Ch. 293 ; 3 Hare, 304 ; affd. 
 
 59 L. J. Ch. 259 ; 43 Ch. D. 519. (1847), 17 L. J. Ch. 83: 2 Ph. 
 
 (*) Fells v. Read (1796), 3 Ves. 382 ; Pooleij v. Budd (1851), 14 
 
 70. Beav. 34. 
 
44 LEADING CASES IN EQUITY. 
 
 Compromise. 
 
 [20] STAPILTON v. STAPILTON. (1739) 
 
 [1 Atk. 2 ; 1 Wh. & T. L. C. 234.] 
 Philip, the father, had two sons (Henry and Philip). 
 Henry was born out of wedlock, Philip was born after 
 his father had married Henry's mother, with whom he 
 had cohabited for many years. Both sons were ignorant 
 of their respective rights in the family property, and were 
 induced by the father to come to an arrangement con- 
 cerning its division. Before the agreement could be 
 carried out Henry died. After the father's death, Henry's 
 son sought to establish his title to the whole of the family 
 property, but in the course of the proceedings it ap- 
 peared that Henry was illegitimate. Thereupon Henry's 
 son was allowed to shift his ground, and to claim the 
 benefit of the arrangement as to the division of family 
 property. Lord Hardwicke, L.C., defined this jurisdic- 
 tion in the course of his judgment: "Considering the 
 consequence of setting aside this agreement, a Court of 
 equity will be glad to lay hold of any just ground to 
 carry it into execution, and to establish the peace of a 
 family." 
 
 The plaintiff being an infant, no laches could be imputed to 
 him. That is why he was not estopped by his pleading. 
 
 The undesirable nature of the proceeding, popularly known as 
 " washing dirty family linen in public," probably led the Court to 
 hear cases affecting wards of Court or lunatics in camera (a). 
 Duty of In the principal case the only party against whom concealment 
 
 disclosure. CO uld be charged was the father. But where a younger brother 
 was at the date of the compromise apprised of the fact that his 
 father had gone through a ceremony of marriage in private with 
 the mother of the elder brother, and the agreement for the division 
 of the family property proceeded upon the footing that the elder 
 brother was illegitimate, he being ignorant of the true state of 
 
 (a) Andrew v. Raelnm (1874), L. R. 9 Ch. 522. 
 
COMPROMISE. 45 
 
 facts, the compromise was set aside for non-communication by the 
 younger to the elder brother of this material fact (b). 
 
 If a party, having his suspicions aroused, -wilfully abstains from "Wilful 
 making inquiries in quarters from which he could obtain accurate ignorance, 
 information, he cannot be heard to complain that material facts 
 were concealed from him by another party to a compromise (c), and 
 where a party to an action concurred in a compromise of the pro- 
 ceedings at the instance of the solicitor to another party, and 
 without consulting his own solicitor, he was held bound (d). "Where 
 the validity of a compromise depends upon the sanction of the 
 Court, as in the case where infants are to be bound, the fullest 
 disclosure is always required, for the Court can only proceed upon 
 the facts in evidence, and laches cannot be imputed to a party under 
 disability (e). 
 
 In the cases of compromise the consideration is the surrender by Considera- 
 each party of a bona fide claim, and the Court will not enter upon ^on. 
 the question whether success would have followed upon litiga- 
 tion (/). This consideration also exists in the case of compromises 
 between near relatives — "family arrangements" is their conven- 
 tional name — but there are the additional circumstances of "the 
 peace of a family," to quote Lord Hardwicke in the principal case, 
 and the natural love and affection that near relatives are supposed 
 to feel, and sometimes show, towards one another (g). 
 
 Depending for its validity, as a compromise does, upon the Compromise 
 knowledge, actual or presumed, of the parties, a special authority by agent, 
 must be given to an agent to compromise any particular claim (A). 
 In the case of compromises of legal proceedings, the party pre- 
 sumptively invests his legal adviser with a general authority to 
 
 (b) Gordon v. Gordon (1821), 3 (e) Brooke v. Mostyn (lord) (1864), 
 Swanst. 400 ; Smith v. JPincombe 34 L. J. Ch. 65 ; 2 De G. J. & S. 
 (1852), 3 Mac. & G. 653. See 373 ; revd. on the ground that 
 Brooke v. Mostyn (Lord) (1864), 34 there had been, in fact, no sup- 
 L. J. Ch. 65 ; 2 De G. J. & S. pression (1866), L. R. 4 H. L. 
 373 ; revd. on the ground that 304. 
 
 there had been, in fact, no sup- (/) Miles v. New Zealand Alford 
 
 pression (1866), L. R. 4 H. L. Estate Co. (1886), 55 L. J. Ch. 
 
 304. 801 ; 32 Ch. D. 266. See Trigge 
 
 (c) Collier v. Squire (1827), 5 v. Lavallee (1862), 15 Moo. P. C. 
 L. J. (O. S.) Ch. 186; 3 Russ. 270. 
 
 467; Bainbrigge v. Mo-is (1856), 3 (g) Perssev. Persse (1840), 7 CI. 
 
 Jur. N. S. 58; affd. (1856), 3 Jur. & F. 279 ; Williams v. Williams 
 
 N. S. 62, n. (1867), 36 L J. Ch. 419 ; L. R. 2 
 
 (d) Turner v. Green (1895), 64 Ch. 294. See Lawton v. Campion 
 L. J. Ch. 539; [1895] 2 Ch. 205. (1854), 23 L. J. Ch. 505; 18Beav. 
 See Armorduet Mfg. Co. v. General 87 ; Cottenham, L C, Pickering v. 
 Incandescent Co. (1911), 80 L. J. Pickering (183a), 8 L. J. Ch. 336; 
 K. B. 1005 ; [1911] 2 K. B. 143. 4 M. & Cr. at p. 304. 
 
 (h) See Leake, Contracts, 322. 
 
46 
 
 LEADING OASES IN EQUITY. 
 
 Duty of legal 
 adwer. 
 
 Extent of 
 compromise. 
 
 Confirmation . 
 
 compromise the subject-matter of the particular action in which 
 he is employed (i). This being a particular authority, is subject to 
 the limitations which the client has imposed (k). 
 
 A legal adviser, consulted by and acting for all parties to a com- 
 promise, is not entitled to withhold from any of the parties a know- 
 ledge of facts with which he is acquainted, even if he withholds 
 them with a view to further what he honestly believes to be a 
 reasonable compromise of rights (/) ; but a party impugning a com- 
 promise must show fraud or improper conduct on the part of his 
 legal agent, whether he is acting for him solely or for others as 
 well ; mere incompetence or bad advice is not a sufficient ground for 
 upsetting a compromise (m). 
 
 Parties can only be bound by a compromise to the extent to 
 which it affects points actually in dispute between them («). 
 
 Closely bound up with the doctrine of compromise is that of 
 confirmation. A party, fully apprised of his rights, may confirm a 
 transaction which he is entitled to impeach (o), and in the case of 
 fraud, where a single act is sufficient to avoid the contract, a party 
 who has confirmed the contract induced by a fraud which he has 
 subsequently discovered, cannot repudiate the contract on dis- 
 covering a new item of fraud (p). A repudiation upon a ground 
 which is invalid may amount to a confirmation, although other 
 grounds of repudiation exist (2). There cannot be a confirmation 
 of a void act(r). 
 
 (») Fumival v. Bogle (1827), 6 
 L. J. (O. S.) Oh. 91 ; 4 Russ. 142 ; 
 Re Newen, Carruthers v. Newen 
 (1903), 72 L.J. Oh. 356; [1903] 
 1 Ch. 812. See Swinfen v. Swinfen 
 (1858), 27 L. J. Ch. 461 ; 2 De G. 
 & J. 381 ; Hickman v. Berens 
 (1895), 64 L. J. Ch. 785; [1895] 2 
 Ch. 638 ; Eempshall v. Holland 
 (1895), 14 K. 336. 
 
 (k) Nealev. Gordon- Lennox (1902), 
 71 L. J. K. B. 939 ; [1902] A. C. 
 465. See Little v. Spreadbury 
 (1910), 79 L. J. K. B. 1119 ; 
 [1910] 2 K. B. 658. 
 
 (I) Re Roberts, Roberts v. Roberts 
 (1905), 74 L. J. Ch. 483; [1905] 
 1 Ch. 704. 
 
 (m) Stewart v. Stewart (1839), 6 
 CI. & F. 911 ; Stone v. God fret/ 
 (1"54), 23 L. J. Ch. 769 ; 5 De G. 
 M. & G. 76. 
 
 (n) Bennett v. Merriman (1843), 
 6 Beav. 360 ; Lawton v. Campion 
 (1854), 23 L. J. Ch. 505 ; 18 Beav. 
 87; Cloutte v. Storey (1910), 80 
 L. J. Ch. 193; [1911] 1 Ch. 18. 
 See Triqge v. Lavallee (1862), 15 
 Moo. P. C. 270. 
 
 (0) Stone v. Godfrey (1854), 23 
 L. J. Ch. 769 ; 5 De G. M. & G. 
 76 ; Allcarii v. Skinner (1887), 56 
 L. J. Ch. 1052 ; 36 Ch. D. 145. 
 
 (p) Campbell v. Fleming (1834), 
 3 L. J. K. B. 136 ; 1 A. & E. 40 ; 
 Law v. Law (1904), 74 L. J. Ch. 
 169; [1905] 1 Ch. 140. 
 
 (q) Badman and Bosanquefs Case 
 (1890), 45 Ch. D. 16. 
 
 (r) Doev. Watts (1797), 7 T. B. 
 83 ; Brook v. Hook (1871), 40 L. J. 
 Ex. 50 ; L. R. 6 Ex. 89 ; Re Bagley 
 (1910), 80 L. J. K. B. 168 ; [1911] 
 1 K. B. 317. 
 
CONVERSION. 47 
 
 Conversion. 
 
 FLETCHER v. ASHBURNER. (1779) [21] 
 
 [1 Bro. Ch. Cas. 497 ; 1 Wh. & T. L. 0. 347.] 
 
 The testator devised his burgage houses and free rents 
 in Kendall, and all his personal estate, to trustees in trust 
 to sell so much as should be sufficient to pay his debts, 
 and then to permit his wife to enjoy the residue during 
 widowhood; and after her decease to sell the same and 
 divide the net proceeds between his son and daughter, 
 share and share alike, with a gift over which did not take 
 effect, and the question arose between the plaintiff, who 
 was heir-at-law of the testator and of his son, and the de- 
 fendant, who' was the personal representative of the widow 
 who was sole next of kin of the son, each claiming 
 the property. Sir Thomas Sewell, M.R., in giving 
 judgment, observed "that nothing was better estab- 
 lished than this principle, that money directed to be em- 
 ployed in the purchase of land, and land directed to be 
 sold and turned into money, are to be considered as that 
 species of property into which they are directed to be con- 
 verted ; and this in whatever manner the direction is given ; 
 whether by will, by way of contract, marriage articles, 
 settlement, or otherwise, and Whether the money is actually 
 deposited or only covenanted to be paid, whether the land 
 is actually conveyed or only agreed to be conveyed. The 
 owner of the fund or the contracting parties may make 
 land money, or money land." He held that the defen- 
 dant was the party entitled, and dismissed the bill. 
 
 Where there is a trust or direction to sell, and no limit of time is Conversion, 
 fixed, conversion takes place from the execution of the deed, if the whether 
 trust or direction is contained in a deed (s), and from the death of « J^tfrJS 
 
 (s) Sayden v. Watson (1843), 12 L. J. Ch. 277; Griffith v. Ricketts 
 <1849), 19 L. J. Ch. 100 ; 7 Hare, 299. 
 
48 
 
 LEADING OASES IN EQUITY. 
 
 Trust for con- 
 version, -with 
 power to 
 postpone. 
 
 In the ease of 
 mortgages of 
 land. 
 
 In the case of 
 sales and 
 purchases of 
 land. 
 
 the testator, if contained in a will (t). A trust or direction may be 
 absolute and immediate, although the trustees are invested with a 
 discretion as to the time when the property shall be converted (u). 
 The Court will not interfere with the discretion of trustees as to the 
 time of conversion (x). Where, however, a person is directed to 
 sell land, or to invest personalty in the purchase of land, but with 
 a discretion as to the time of performance, there will be no conver- 
 sion until an actual sale or investment {y). So where the consent 
 of third persons is required, there will be no conversion until an 
 actual sale or investment takes place, but as a general rule a, 
 provision directing that a trust for sale or investment shall be 
 exercised upon request will not be regarded as necessarily restricting 
 the intention to effect an immediate conversion (z). 
 
 An absolute trust for conversion is sometimes qualified by a 
 power to postpone the sale, or to retain existing investments. The 
 Court cannot interfere with a lond fide exercise of the power (a), 
 but unless all parties to exercise the power to postpone or to retain 
 concur, conversion is imperative, notwithstanding some of the invest- 
 ments are not authorized by the investment clause in the will (6). 
 
 In a Court of equity, a mortgage of land was regarded as a 
 pledge, the mortgagor remaining in beneficial ownership until his 
 right to redeem was lost (c). A power to sell freehold land in 
 mortgage does not effect a conversion in equity of its own force ; if 
 exercised in the lifetime of the mortgagor there is a conversion, but 
 not if exercised after his death [d). 
 
 Where there is a valid contract for the sale or purchase of land 
 a conversion of the property is effected, but it is essential that the 
 parties should be entitled to have the contract specifically per- 
 formed (e). If the contract cannot be enforced by reason of the 
 
 (t) Beauclerk(Zord)v.Mead(174:l), 
 2 Atk. 167. 
 
 (u) Robinson v. Robinson (1854), 
 19 Beav. 494 ; Minors v. Battison 
 (1876), 46 L. J. Oh. 2; 1 App. 
 Cas. 428 ; Re Raw, Morris v. 
 Griffiths (1884), 53 L. J. Ch. 1051 ; 
 26 Oh. D. 601. 
 
 (x) Re Norrington, BrindUy v. 
 Partridge (1880), 13 Ch. D. 654; 
 Re Horsnaill, Wonu>rUeyv . Horsnaill 
 (1909), 78 L. J. Ch. 331 ; [1909] 1 
 Ch. 631. 
 
 (y) Polley v. Seymour (1837), 7 
 L. J. (N. S.) Ex. Eq. 12 ; 2 T. & 
 C. Ex. 708 ; Bourne v. Bourne 
 (1842, 11 L J. Ch. 416; 2 Hare, 
 35 ; Shipperdson v. Tower (1842), 
 1 Y. & C. Ch. 441. 
 
 (z) Davies v. Goodhew (18341, 6 
 Sim. 585 ; Att.-Gen. v. Dodd 
 (1894), 63 L. J. Q. B. 319 ; [1894] 
 2 Q. B. 150. 
 
 (a) Re Norrington, Brindley y. 
 Partridge (1N80), 13 Ch. D. 654. 
 
 (*) Re Hilton, Gibbes v. Sale 
 Hinton (1909), 79 L. J. Ch. 7 ; 
 [1909] 2Ch. 548. 
 
 (c) See post, title Mortgage, 
 p. 107. 
 
 (d) Bourne v. Bourne (1842), 11 
 L. J. Ch. 416 ; 2 Hare, 35 ; Re 
 Clarke's Trusts (1852), 22 L. J. 
 Ch. 230 ; Re Grange, Chadwiek v. 
 Granqe (1907), 76 L. J. Ch. 456 ; 
 [1907] 2 Ch. 20. 
 
 (e) Broome v. Monck (1805), 10 
 Ves. 597 ; Curre v. Bowyer, 5 Beav. 
 
CONVERSION. 49 
 
 Statute of Frauds (which does not affect the validity of the con- 
 tract), conversion will be effected if the contract of the deceased is 
 adopted by his representatives, otherwise not (/). Land is some- 
 times acquired compulsorily, under statutory powers ; conversion 
 in this case usually depends upon the construction of the statute (g) ; 
 but where a landowner and a railway company agreed as to the 
 acreage price which should be paid for the land taken, but the 
 company did not exercise its compulsory powers until after the 
 landowner's death, it was held, upon the construction of the con- 
 tract, that there was no conversion until after the company actually 
 indicated the land required, and consequently that the money 
 belonged to the real, and not the personal representative (h). A 
 sale under the provisions of the Partition Act, where the parties 
 are sui juris effects a conversion as from the date of the order, but 
 where the parties are under disability no conversion is effected (?"). 
 A provision is sometimes inserted in a lease giving an option to a 
 tenant to purchase the freehold reversion ; in this case there is no 
 conversion until the option is exercised (k). 
 
 "Where the Court orders a sale of real estate, a conversion is Conversion by 
 effected from the d.ite of the order where the order is rightfully ^ de ^^ e 
 made (I). Indeed, it would seem that upon principle the order 
 should be treated as valid, whether rightly made or not, the Court 
 having presumably unlimited jurisdiction, leaving a party aggrieved 
 to apply to have the order rectified so as to preserve the rights of 
 the parties (m). The Court will sometimes direct an investment in 
 the purchase of land preserving the rights of the representatives (n). 
 There is no preference of real over personal representatives, or vice 
 versa, each being in the eye of the Court volunteers (o). 
 
 6, n. ; Be Thomas, Thomas v. Howell [1905] 2 Ch. 257. 
 
 (1886), 66 L. J. Ch. 9; 34 Ch. D. (I) Be Dodson, Yates v. Morton 
 
 166 ; Hudson v. Cook (1872), 41 (1908), 77 L. J. Ch. 830 ; [1908] 
 
 L. J. Ch. 306 ; L. E. 13 Eq. 2 Ch. 638 ; Burgess v. Booth (10(>8), 
 
 417. 78 L. J. Ch. 32 ; [1908] 2 Ch. 648 ; 
 
 (/) Frayne v. Taylor (1863), 33 Fauntleroy v. Beebe (1911), 80 L. J. 
 
 L. J. Ch. 228 ; Be Harrison, Perry Ch. 654 ; [1911] 2 Ch. 257. 
 
 v.Spicer(lS86),561i. J. Ch. 341; 34 (m) See per Lord Eldon, L.C., 
 
 Ch. D. 214. Ware v. Polhill (1805), 11 Ves. at 
 
 (a) Be Harrop's Estate (1857), 26 p. 278 ; Be Gist (1904), 73 L. J. Ch. 
 
 L. J. Ch. 616 ; 3 Drew. 726 ; 251 ; [1904] 1 Ch. 394. 
 
 Kelland v. Fulford (1877), 6 Ch. D. (n) Ashburton (Lord) v. Ashburton 
 
 491. {Lady) (1801), 6' VeB. 6; Webb v. 
 
 (h) Fxv. Walker (1853), 22 L. J. Shaftesbury (Lord) (1821), 6 Madd. 
 
 Ch. 888 ;' 1 Drew. 508. 100 ; Be Byder (1882), 20 Ch. D. 
 
 (i) See tit. Partition, post, p. 134. 514. 
 
 (k) Edwards v. West (1878), 47 (o) Oxenden v. Compton (Lord) 
 
 L. J. Ch. 463; 7 Ch. D. S58. A (1793), 2 Ves. Jr. 69; Be Grim- 
 
 provision of this character does not thorpe (Lord), Beckett v. Grimthorpe 
 
 run with the land: Woodall v. (Lord) (1908), 78 L. J. Ch. 20; 
 
 Clifton (1905), 74 L. J. Ch. 555 ; [1908] 2 Ch. 675. 
 
 K. E 
 
50 
 
 LEADING CASES IN EQUITY. 
 
 [22] 
 
 Conversion 
 out and out. 
 
 Failure of 
 purpose 
 where con- 
 version is 
 directed by 
 deed. 
 Devolution. 
 
 ACKROYD v. SMITHSON. (1780) 
 [1 Bro. Ch. Cas. 503 ; 1 Wh. & T. L. C. 394.] 
 
 A testator gave legacies to several named persons, and 
 ordered his real and personal estate to be sold, for pay- 
 ment of his debts and legacies, and gave the residue to 
 the same legatees by name in proportion to their several 
 and respective legacies therein to them bequeathed. This 
 was held to make them tenants in common of the residue. 
 Two of the residuary legatees died in the lifetime of the 
 testator. The heir-at-law claimed so much of the lapsed 
 shares of residue as represented the proceeds of sale of 
 realty. Lord Thurlow, L.C., asked Mr. Scott (after- 
 wards Lord Eldon) upon what ground he could support 
 the claim of the heir-at-law. The answer was so effec- 
 tive that his argument is invariably referred to in pre- 
 ference to the judgment of Lord Thurlow, who approved 
 the distinctions made on behalf of the heir. 
 
 The leading case of Achroyd v. SmUhson rests upon the principle 
 that " the heir is excluded, not by the direction to convert, but by 
 the disposition of the converted property, and so far only as that 
 disposition extends." But this rests in presumption only, and the 
 testator may by apt language show that he intends the proceeds 
 of the realty to be considered as blended with his personalty in one 
 fund, and in that event effect will be given to his wishes [p). 
 
 Where land is conveyed by deed, and the purposes for which it 
 is conveyed fail wholly or in part, the grantor is entitled, under 
 the doctrine of resulting trust, to so much as is undisposed of (q). 
 
 If a conversion is obligatory, the property, whatever its then 
 state of investment, will result under the general rule in the 
 principal case impressed with that quality which the settlement (be 
 it deed or will) directs it should bear ; but where the conversion is 
 not obligatory or necessary, the property will retain its original 
 
 (p) Byam v. Munton (1830), 8 
 L.J. (0. S.) Ch. 156 ; 1 Rues. & M. 
 503 ; Spencer v. Wilson (1873), 42 
 L.J. Ch. 764; L. B. 16 Eq. 601 ; 
 Singleton v. Tomlinson (1878), 3 
 
 App. Cas. 404. 
 
 (q) Clarke v. Franklin (1858), 27 
 L. J. Ch. SG7 ; i K. & J. 257 ; 
 Nurthen v. Carnegie (1859), 28 
 L. J. Ch. y30 ; 4 Drew. 687. 
 
CONVERSION. 51 
 
 quality in the hands of the person ta kin g under the resulting trust. 
 The quality of the property is thus fixed whether the failure of the 
 purposes is total or partial, and an actual sale, if made unneces- 
 sarily, will not alter the quality of the property for the purpose 
 of devolution or transmission whether as realty or as personalty (r). 
 But this is subject to the right, next to be noticed, to elect to take 
 property in its actual state. 
 
 Parties absolutely entitled may elect, or if more than one jointly Election 
 elect, that property directed to be converted shall be taken in its a g am st 
 actual state, whether money or land (s). In order to entitle them 
 to exercise this election the following circumstances must concur: — 
 (1) the estate must be absolute and indefeasible (t) ; (2) it must be 
 an estate in possession (u). But a party having only a contingent 
 interest may exercise his right to elect before his estate becomes abso- 
 lute, and the quality of the property will be determined according to 
 his election (x). Where several are beneficially interested in the pro- 
 ceeds of sale of land, all must concur in order that there may be a 
 reconversion (y) ; but one of several persons absolutely entitled 
 may elect to take his proportionate share of money directed to be 
 laid out in the purchase of land (z). A tenant in tail of land may 
 make himself the absolute owner by executing a disentailing 
 assurance, and a person who would be tenant in tail of land, if a 
 trust for conversion were performed, may, upon executing such a 
 conveyance, call for a transfer of money (a). Parties under dis- 
 ability cannot elect, as will be noticed hereafter (b). 
 
 (r) Smith v. Claxton (1820), 4 (y) In re Heathcote, Gilbert v. 
 
 Madd. 484; Jexsopp v. Watson Aviolet (1887), 58 L. T. 43; affd. 
 
 (1833), 2 L. J. Ch. 197; 1M. &K. 85 L. T. Jo. 120; In re Hors- 
 
 665; Re Richerson, fieales v. Heyhoe naill, Womershy v . Horsnaill (19U9), 
 
 (1891), 61 L.J. Ch. 202; [1892] 1 78 L. J. Ch. 331; [1909] 1 Ch. 
 
 Ch. 379. ' 631. 
 
 (s) Wheldale v. Partridge (1803), (z) Seeley v. Jago (1717), 1 P. 
 
 8 Ves. 227 ; Mutlow v. Biug (1875), Wms. 389 ; Walker v. Denne (1793), 
 
 45 L. J. Ch. 282 ; 1 Ch. t). 385. 2 Vea. Jr. 170. 
 
 (() Sisson v. Giles (1863), 32 (a) Re Butler's Will (1873), L.E. 
 
 L. J. Ch. 606 ; 3 De G. J. & S. 16 Eq. 479 ; Re Harvey, Harvey v. 
 
 614; In re Lewis, Foxweil v. Lewis Harcey (1901), 70 L. J. Ch. 694; 
 
 (1885), 55 L. J. Ch. 232; 30 Ch. D. [1901] 2 Ch. 290. See as to the 
 
 654. law apart from the Fines and Ke- 
 
 («) Walrond v. Rosslyn (1879), coveries Act, 1833 (3 & 4 Will. 4, 
 
 48 L. J. Ch. 602 ; 11 Ch. D. 640. c. 74), Benson v. Benson (1710), 1 
 
 (x) Meek v. Devenith (1878), 6 P. Wms. 1 30, and note there. 
 
 Ch. D. 566. (b) See tit. Election, post, p. 54. 
 
 e2 
 
52 LEADING CASES IN EQUITY. 
 
 Election. 
 
 [23] STREATFIELD v. STREATFIELD. (1736) 
 
 [Cas. t. Talb. 176; 1 Wh. & T. L. C. 440.] 
 The grandfather, in contemplation of his marriage, 
 entered into articles by which he agreed to make a settle- 
 ment of lands at Sevenoaks to the use of himself and 
 his intended wife for their lives, and the life of the sur- 
 vivor, with remainder to the use of the heirs of the body 
 of him the grandfather on his wife begotten, with re- 
 mainders over. He executed a settlement in 1698 in 
 which the limitations followed the very words of the 
 articles, whereas he should have executed a strict settle- 
 ment. (See Olenorehy {Lord) v. Bosville, post, p. 170.) 
 Upon the marriage of his son in 1716, the grandfather 
 settled other lands upon the son for life, with remainders 
 over. After the death of the son, the grandfather barred 
 his estate tail under the settlement of 1698. He then 
 devised part of the Sevenoaks lands to his daughters, and 
 the residue of his Sevenoaks lands and other lands to his 
 grandson, an infant. An action having been brought by 
 the infant grandson to establish his title to the Sevenoaks 
 lands, Lord Talbot, L.C., decided: (1) That the grand- 
 son was put to his election whether he would stand by the 
 will or the articles ; and if he elected to stand by the latter, 
 (2) That he must make compensation to his aunts, who 
 were disappointed by his election, out of the lands other 
 than the Sevenoaks lands; and (3) That he should be 
 given six months after coming of age to make his election. 
 
 The student should bear in mind that the word " election " is 
 used in at least two senses. When we speak of a case of election 
 it may either moan that u person is given the option of choosing 
 between two or more alternatives, or it may mean that the person, 
 having the right to adopt one or other of two or more alternatives, 
 
ELECTION. 53 
 
 has made his final determination. The distinction is not unim- 
 portant. 
 
 The equitable doctrine of election is not a positive rule of law, it Not a rule 
 is merely a right in another to call upon a party to exercise his of law or 
 right of choice between two or more benefits ; until a party is called 
 upon to make his choice, there is nothing inequitable in allowing 
 him to enjoy both benefits (c). And the very terms of a gift may 
 negative the doctrine of election, as in the case of a gift to a 
 married woman who is restrained from anticipation (d). 
 
 The better opinion seems to be, that no evidence dehors the Admission 
 
 particular instrument can be adduced for the purpose of raising a °* P aro1 
 
 .,,-,« r evidence, 
 
 case of election (e). 
 
 Before a party can be forced to elect he is entitled to have the " Clearing" 
 estates "cleared," as it is called. That is, he is entitled to have estatea - 
 the relative values of the various alternatives ascertained (/). 
 
 The cases establish that a party cannot be deemed by mere lapse Time for 
 of time to have finally fixed his rights by the doctrine of election ; e eotm ?- 
 it must be shown that he knew all the facts, that the fact that he 
 was called upon to make a choice was present to his mind, that 
 these two circumstances concurring he deliberately made his 
 election (</). The acts of a party entitled merely to a reversionary 
 interest are not to be regarded as so deliberate as those of a person 
 entitled to a present interest (A). 
 
 Bringing an action is not a conclusive act(i) ; nor is receiving Acts amount - 
 the income of both estates (Jc). Dealing with the property by j J^L? 11 
 deed (I) or dealing with the capital (m) have been treated as acts of 
 
 (e) Spread v. Morgan (1865), 11 cock, Hancock v. Fawson (1904), 74 
 
 H. L. C. 588 ; Sutton v. Seaton L. J. Ch. 69 ; [1905] 1 Ch. 16. 
 
 (1888), 57 L. J. Ch. 661; 13 App. {g) Spread v. Morgan (1865), 11 
 
 Cas. 61. ~ H. L. C. 588 ; Wilsons. Thornbury 
 
 Id) Re Vardmi's Trust (1885), 55 (1875), 44 L. J. Ch. 242 ; L. E. 10 
 
 L. J. Ch. 259 ; 31 Ch. D. 275 ; Ch. 239. 
 
 Haynes v. Foster (1901), 70 L.J. (h) See Padbury v. Clarke (1850), 
 
 Ch. 302; [1901] 1 Ch. 361. 19 L. J. Ch. 533 ; 2 Mao. & G. 
 
 («) Stratum v. Best (1791), 1 Ves. 298. 
 
 Jr. 285 ; Summer v. Pitcher (1833), (») Hamilton v. Hamilton (1891), 
 
 2M. &K. 262; Clementsonv.Gandy 61 L. J. Ch. 220; [1891] 2 Ch. 
 
 (1836), 5 L. J. Ch. 260 ; 1 Keen, 396. 
 
 309 ; He Harris, Leacroft v. Harris (k) Spread v. Morgan (1865), 11 
 
 (1909), 78 L. J. Ch. 448 ; [1909] 2 H. L. C. 588 ; Re Turner, Turner 
 
 Ch. 206. v. Fitzroy (1892), 66 L. T. 758. 
 
 (/) Whistler v. Webster (1794), 2 (I) Dillon v. Parker (1818), 1 
 
 Ves. Jr. 367; Douglas v. Douglas Swanst. 359; (1822), Jae. 505; 
 
 (1871). 41 L. J. Ch. 74 ; L. E. 12 (1833), 1 CI. & F. 303. 
 
 Eq. 617 ; Wilson v. Thornbury (m) Worthinqton v. Wiginton 
 
 (1875), 44 L. J. Ch. 242 ; L. E. 10 (1855), 24 L. J. Ch. 773 ; 20 Beav. 
 
 Ch. 239. See Pigott v. Bagley 67 ; compromised on appeal, 25 
 
 (1825), MeCl. & T. 669 ; Re Han- L. J. Ch. 171. 
 
54 
 
 LEADING CASES IN EQUITY. 
 
 Parties under 
 disability. 
 
 Adjustment 
 of rights. 
 
 election. And where a testator bequeathed an annuity of 6001. to 
 a legatee on condition that he should, within three months, execute 
 a release of all demands on the estate ; and the executors tendered 
 a release which included two other annuities granted by the 
 testator in his lifetime, this was held to be no forfeiture, but on 
 refusing to execute another release settled by the master which 
 was subsequently tendered to him, the Court declared the annuity 
 of 600/. forfeited (n). 
 
 In the principal case the party was an infant, and was given a 
 day, as it is called, upon which to make his election. The present 
 day practice is for the Court to elect on behalf of an infant upon 
 the result of an inquiry in chambers (o), although the Court can 
 act without a reference to chambers (p). The Court will elect on 
 behalf of a lunatic ( q). If the party has been found to be a lunatic 
 the jurisdiction is exercised by the committee with the sanction of 
 the Lords Justices sitting in Lunacy (r). A married woman could 
 not bind herself by her election, but may now be entitled to do so 
 by reason of the Married Women's Property Act, 1S82, and an 
 inquiry would be directed as in the case of an infant (s), unless the 
 case was clear enough upon the evidence for the Court to dispense 
 with an inquiry (t). 
 
 The principal case proceeds upon the ground that the party 
 disappointed is entitled to compensation, and that election does not 
 wort a forfeiture. This is now well settled law, after some conflict 
 of authority (u). And the respective values are to be ascertained as 
 at the date when a party can be called upon to elect, which in the 
 case of a present interest is the death of the testator (x). Where a 
 party has received benefits (e.g., intermediate income) arising from 
 property which he has to surrender as a result of his election, he 
 must account for the benefits so received («/) ; if the party electing 
 is a woman who has been married, she need not account for income 
 received during the continuance of her marriage if a restraint upon 
 
 («) Taylor v. Popham (1782), 1 
 Bro. C. C. 168. 
 
 (o) Cooper v. Cooper (1874), 44 
 L. J. Ch. 6 ; L. R. 7 H. L. 53 ; 
 Ee Montagu, Faber v. Montagu 
 (1896), 65 L. J. Ch. 372; [1896] 
 1 Ch. 549. 
 
 (p) ZamSv.Zami(1857),5W.R. 
 772. 
 
 (q) Wilder v. Pigott (1882), 52 
 L. J. Ch. 141 ; 22 Ch. D. 263. 
 
 (r) See Re Hewson (1854), 23 
 L. J. Oh. 256. 
 
 (s) Cooper v. Cooper (1874), 44 
 L. J. Ch. 6 ; L. R. 7 H. L. 53. 
 
 (t) Wilson v. Towns/lend (Lord) 
 (1795), 2 Ves. Jr. 693. 
 
 («) Bristow v. Warde (1794), 2 
 Ves. Jr. 336 ; Hmvells v. Jenkins 
 (1863), 32 L. J. Ch. 788 ;lDeG. 
 J. & S. 617. See Pickersgill v. 
 Rodger (1877), 5 Ch. D. 163. 
 
 (x) Ee Hancock, Hancock v.Pawson 
 (1904), 74 L. J. Ch. 69; [1905] 1 
 Ch. 16. See ante, p. 53. 
 
 (y) Gretton v. Haward (1819), 
 1 Swanst. 409. 
 
ELECTION. 55 
 
 anticipation attached, but in respect of her other separate property- 
 she must account (z). 
 
 The majority of the cases before cited deal with a provision in Application 
 an instrument which purports to deal with property to which he is ° f tte ri ^ e as 
 in fact entitled in his own right. This is the foundation of the rule, 
 and there can be no election where the benefits are contained in 
 one and the same instrument (a). Conversely, there can be no case 
 for election where a testator has no free property of his own to 
 dispose of (b). Until the passing of the Dower Act, 1833, a woman 
 upon marriage acquired a right to dower in freehold lands of 
 inheritance, unless it had been barred by a jointure made before 
 marriage under the provisions of the Statute of Uses. It followed 
 that a widow was not put to her election to choose between dower 
 and a legacy under the will of her husband, for the husband was 
 not deemed to intend to dispose of his wife's interest in the land (c). 
 But a case of election might be raised by the terms of the will (d). 
 A presumption arises where a gift is made by a person standing in 
 loco parentis, that he did not intend the donee to receive both, and 
 a case of election arises (e). 
 
 Where there is no fund or property available to compensate the No property 
 
 party damnified there can be no question of election. Thus, where avaiIat,le * or 
 
 a donee of a power makes an appointment in favour of an object of 
 
 the power' coupled with an invalid provision in favour of a person 
 
 not an object of the power, there is no question of election (/) ; but 
 
 if the donee of the power makes, out of his own property, a further 
 
 provision in favour of the object, then a case of election does 
 
 arise (g). So, too, there can be no case of election where the only 
 
 property available for compensation is property which a married 
 
 woman is restrained from anticipating (h). 
 
 The doctrine has been applied where a testator made an ineffective Application 
 
 of rule in the 
 
 (z) Codrington v. Lindsay (1873), L. J. Ch. 623 ; 4 De G. M. & G. 
 
 42 L. J. Ch. 526 ; L. K. 8 Ch. 321 ; Linley v. Taylor (1859), 28 
 
 578 ; affd. nom. Codrington v. Cod- L. J. Ch. 686 ; 1 Giff. 67. 
 
 rington (1875), 45 L. J. Ch. 660; (e) See Thynne {Lady E.) v. 
 
 L. K. 7 II. L. 854. GlengaU (Earl) (1848), 2 H. L. C. 
 
 (a) Wolhstonv. King (1869), 38 131 ; post, p. 151. 
 
 L. J. Ch. 392 ; L. R. 8 Eq. 165 ; (/) Woolridgev. Woolridge (1859), 
 
 Re Chesham (Lord), Cavendish v. 28 E. J. Ch. 689 ; Johns. 63 ; 
 
 JMcre (1886), 55 L. J. Ch. 401; Churchill v. Churchill (1867), 37 
 
 31 Ch. D. 466. L. J. Ch. 92 ; L. R. 5 Eq. 44. 
 
 (*) M'Donnellv.M'DonnelinSiS), is) Re White, White v. White 
 
 4 Dr. & War. 376. (1«H2), 52 L. J. Ch. 232 ; 22 
 
 (c) Miallv. Brain (1819), 4Madd. Ch. D. 555. 
 
 119; Sending v. Sending (1H57), (A) Re Vardou's Trusts (1885), 
 
 26 L. J. Ch. 469; 3 K. & J. 65 L. J. Ch. 259 ; 31 Ch. U. 275 ; 
 
 257. Haynes v. Foster (1901), 70 L. J. 
 
 (d) Parker v. Sowerby (1854), 23 Ch. 302 ; [1901] 1 Ch. 361. 
 
56 
 
 LEADING CASES IN EQUITY. 
 
 case of land 
 out of the 
 jurisdiction. 
 
 Only binding 
 on person 
 electing. 
 
 Effect of 
 illegality. 
 
 Election a3 
 an estoppel. 
 
 disposition of land out of the jurisdiction ; the person claiming the 
 land upon the footing that the disposition was ineffective was 
 compelled to make compensation out of the other property which 
 he took under the will (i). 
 
 A person electing to take under one instrument in preference to 
 another only binds himself and does not bind parties in the same 
 interest (&). As an indirect result, where several are put to their 
 election, each may share in the compensation fund in which he is 
 entitled to participate by reason of the election of others, in relief 
 of his liability to provide compensation for those who are dis- 
 appointed by his election (I). An assignee has the same right to be 
 compensated as his assignor (to) ; and a person claiming under a 
 party liable to compensate persons disappointed by his election is 
 liable to the same extent as the party under whom he claims («). 
 
 No case of election arises where the gift is obnoxious on the 
 ground of illegality, as in the case of an appointment which is 
 invalid as infringing the rule against perpetuities (o). 
 
 There are other cases of election which are of general application, 
 and which have nothing in common with the equitable doctrine of 
 election with which this note is concerned. Thus, if a party has 
 two alternative remedies for one cause of action, by pursuing the 
 one he is estopped from obtaining the other (p); so, where the 
 grantor of a bill of sale to secure an advance, returned the holders 
 as secured creditors in his bankruptcy, he was not permitted to 
 maintain an action based upon the invalidity of the bill of sale (q) ; 
 again, the recovery of damages in trover from a single tort-feasor 
 vests the property in him (r). Another illustration is that afforded 
 by powers of re-entry reserved to landlords to re-enter for 
 breach of covenant or condition. "Whatever be the form which the 
 
 (i) Orrell v. Orrell (1871), 40 
 L. J. Ch. 539 ; L. E. 6 Ch. 302 ; 
 Douglas -Menziesy : TJmphelbii (1907), 
 77 L. J. P. C. 64; [1908] A. C. 
 224. Cp. Balfour v. Scott (1793), 6 
 Bro. P. 0. 550. 
 
 (k) Ward v. Baugh (1799), 4 Ves. 
 623; Re Blundell, Blundell v . Blun- 
 dell (1906), 75 L. J. Ch. 561 ; 
 [1906] 2 Ch. 222. 
 
 (I) Be Booth, Booth v. Rohinson 
 (1906), 75 L. J. Ch. 610 ; [1906] 
 2Ch. 321. 
 
 (m) Rogers v. Jones (187C), 3 Ch. 
 D. 688. 
 
 (n) Cooper v. Cooper (1874), 44 
 L. J. Ch. 6 ; L. R. 7 H. L. 53 ; 
 
 Blunt v. Lack (1856), 26 L. J. Ch. 
 148. 
 
 (o) Re Nash, Cook v. Frederick 
 (1909), 79 L. J. Ch. 1 ; [1910] 1 
 Ch. 1. 
 
 {p) Sainter v. Ferguson (1849), 19 
 L. J. Ch. 170 ; 1 Mac. & G. 286 ; 
 General Accident Ansa. Corp. v. 
 Noel (1902), 71 L. J. K. B. 236 ; 
 [1902] 1 K. B. 377. 
 
 (<?) Roe v. Mutual Loan Fund 
 (1887), 56 L. J. Q. B. 541; 19 
 Q. B. D. 347. 
 
 (r) Cooper v. Shepherd (1846), 15 
 L. J. C. P. 237 ; 3 C. B. 26R. See 
 Brinsmead v. Harrison (1872), 41 
 L. J. C. P. 190 ; L. E. 7 C. P. 
 647. 
 
ELECTION. 57 
 
 proviso takes, whether in the form of a mere power, or a declaration 
 that in specified, events the lease shall be void, the election rests 
 with the lessor alone (s). But the landlord, if he has full knowledge 
 of the facts (<), may waive the effect of the forfeiture as by receiving 
 rent as rent (u), or by distraining for rent subsequently accrued («). 
 
 Expectant Heirs. 
 
 CHESTERFIELD (EARL) v. JANSSEN. (1751) [24] 
 
 [2 Ves. Sen. 125 ; 1 Wh. & T. L. 0. 303. J 
 
 The plaintiffs were executors of John Spencer, an ex- 
 pectant heir, with a large present fortune, who had raised 
 money upon a post obit bond to pay pressing trade 
 creditors. The deceased had confirmed the original trans- 
 action by giving a fresh bond and a warrant of attorney, 
 upon which judgment was entered up. The defendant 
 sued out a sci. fa. against the plaintiffs upon the judg- 
 ment, and they brought this bill to restrain further pro- 
 ceedings at law, but the only relief awarded was against 
 the penalty of the renewed bond. 
 
 By sub-sect. 6 of sect. 1 of the Money-lenders Act, 1900, "the 
 existing powers or jurisdiction of any Court" are saved. The 
 jurisdiction of the Court of Chancery affected two transactions — 
 (1) sales, (2) mortgages. 
 
 An expectant heir or reversioner is not a person under disability Sales, 
 when dealing with his expectancy. If the purchaser has given the 
 fair market value — not the actuarial value calculated according to 
 the tables — the transaction will stand {y), and the price obtained at 
 an auction, if conducted in a businesslike manner, is good evidence 
 
 (*) Doe v. Bands (1821), 4 B. & Jacob v. Down (1900), 69 L. J. Ch. 
 
 Aid. 401 ; Roberts v. Davey (1833), 493 ; [1900] 2 Ch. 156. See Price 
 
 2 L. J. K. B. 141 ; 4 B. & Ad. v. Woru-ood (1859), 28 L. J. Ex. 
 
 664. 329; 4 H. & N. 512. 
 
 (t) Doe v. Birch (1836), 5 L. J. (x) Grimwoodv. Moss (1872), 41 
 
 Ex.185; II. &W. 402; Matthews L. J. C. P. 239; L. R. 7 O. P. 
 
 v. Smallwood (1910), 79 L. J. Ch. 360. 
 
 322; [1910] 1 Ch. 777. (y) AUborough (Earl) v. Trye 
 
 (a) Davenport v. Meg. (1877), 47 (1840), 7 CI. & F. 436. 
 L. J. P. C. 8 ; 3 App. Cas. 215 ; 
 
58 
 
 LEADING- CASES IN EQUITY. 
 
 Dealings with 
 ignorant and 
 necessitous 
 persons. 
 
 Sales of 
 Reversions 
 Act, 1867. 
 
 Mortgages. 
 
 that the property has not been sold at an undervalue (z). If 
 undervalue is shown, the purchaser must establish the fairness of 
 the transaction (a), notwithstanding the repeal of the Usury Laws 
 and the alteration of the law effected by the Sales of Eeversions 
 Act, 1867(6). 
 
 The Court of Chancery also protects ignorant and necessitous 
 persons who have sold their property for a consideration which is 
 grossly inadequate, especially if they do not receive proper pro- 
 fessional advice (c). "It is not, however, every bargain which 
 distress may induce one man to offer, that another is at liberty to 
 accept. ... In that case too, as in this, the bargain had been 
 hawked about, and offered to many persons. That, Lord Thurlow 
 says, only shows the distress of the borrower " (d). 
 
 Sect. 1 of the Sales of Reversions Act, 1867, is in these terms : 
 " No purchase, made bona fide and without fraud or unfair dealing, 
 of any reversionary interest in real or personal estate shall here- 
 after be opened or set aside merely on the ground of undervalue." 
 The effect of the statute is that where the only objection to the 
 transaction is based upon undervalue alone the purchaser is entitled 
 to succeed, but where there is any other circumstance — " weakness 
 on one sidej usury on the other, or extortion or advantage taken of 
 that weakness" — then the sale maybe impeached, and mere under- 
 value is material (e) ; as where the seller is poor and ignorant, and 
 acts without proper advice (/). 
 
 Upon similar principles the Court will relieve against a mort- 
 gage which is an unconscionable transaction with an expectant 
 heir or reversioner (g). As has been noticed before, this jurisdic- 
 tion has been preserved. But all Courts are now invested with 
 power to relieve borrowers, whether they have property or not, who 
 obtain loans from money-lenders as defined by the Money-lenders 
 Act, 1900. By sect. 1, as amended by sect. 1 of the Money-lenders 
 
 (z) Shellyv. Nash (1818), 3Madd. 
 232 ; Fox v. Wright (1821), 6 Madd. 
 111. 
 
 (a) Gowland v. Be Faria (1810), 
 17 Ves. 20; Hincksman v. Smith 
 (1827), 3 Buss. 433. See Perfect v. 
 Zane (1861), 31 L.J. Ch. 489; 2 
 De G. F. & J. 369. 
 
 (I>) Aylesford (Earl) v. Morris 
 (1873), 42 L. J. Ch. 546; L. R. 8 
 Oh. 484 ; Brenchley v. Higgins 
 (1901), 70 L. J. Ch. 788. 
 
 (c) Evans v. Llewellin (1787), 1 
 Cox, 333 ; Wood v. Abrey (1818), 
 3 Madd. 417 ; Baker v. Monk 
 (1864), 4 De G. J. & S. 388 ; 
 
 Rees v. De Bernardy (1896), 65 
 L. J. Ch. 656 ; [1896] 2 Ch. 437. 
 
 (d) Grant, M.R., Bowes v. Heaps 
 (1814), 3 Ves. &B. at p. 119. 
 
 («) Aylesford (Earl) v. Morris 
 (1873), 42 L. J. Ch. 546; L. R. 
 10 Ch. 484 ; O'Jiorke v. Bolingbroke 
 (1877), 2 App. Cas. 814 ; Brenchley 
 v. Higgins (1901), 70 L. J. Ch. 
 788. 
 
 (/) Fry v. Lane (1888), 58 L. J. 
 Ch. 113; 40 Ch. D. 312. 
 
 (g) Bromley v. Smith (1859), 29 
 L. J. Ch. 18 ; 26 Beav. 644 ; James 
 v. Kerr (1889), 58 L. J. Ch. 355 ; 
 40 Ch. D. 449. 
 
EXPECTANT HEIRS. 59 
 
 Act, 1911, relief may be granted where " the interest charged in 
 respect of the sum actually lent is excessive, or that the amounts 
 charged for expenses, inquiries, fines, bonus, premium, renewals, 
 or any other charges, are excessive, and that, in either case, the 
 transaction is harsh and unconscionable, or is otherwise such " — if 
 the transaction takes place in England, Wales, or Ireland — " that 
 a Court of Equity would give relief," with a saving of the rights of 
 "any bond fide assignee or holder for value without notice" (h). 
 
 Compromises, especially if settling family disputes, are regarded Compromises, 
 with favour, and will be supported unless there has been actual 
 fraud or circumvention, although the party seeking to impeach a 
 compromise, if apprised of his rights, would have refused his 
 assent (?'). 
 
 Where an advance was made, and the lender hoped that he would Circvim- 
 be able to extort payment from members of the borrower's family st ^ ces °f 
 
 6V1G.6IIC6. 
 
 who would be desirous of avoiding the odium of bankruptcy pro- 
 ceedings against their relative, the transaction was set aside (k). 
 In one case, a recipient of bounty tried to cover up his tracks under 
 a pretended purchase, carried out by a deed which contained a 
 statement of the consideration upon which the conveyance was 
 alleged to be founded, but a statement contrary to the truth. These 
 circumstances were treated as not favourable to the validity of the 
 transaction (J). Youth is not essential; a man of thirty has obtained 
 relief from an unconscionable bargain (m). Failing powers conse- 
 quent upon old age are also circumstances of evidence (n). The 
 fact that the expectant heir or reversioner has not enjoyed the 
 protection of proper professional advice is a matter to be considered, 
 but is not conclusive of the rights of the parties (o). 
 
 The order of the Court when relief is granted is to allow the Form of 
 property to stand security for the amount actually advanced and reUe *- 
 interest at 5 per cent., whether it be a sale (p) or a mortgage (q). 
 
 (h) Samuelv. Newbold (1906), 75 (») Gibson v. Xussell (1843), 2 
 
 L. J. Ch. 705 ; [1906] A. C. 461. T. & C. Ch. 104 ; Anderson v. 
 
 See Leake, Contracts, 538. Slsworlh (1861), 30 L. J. Ch. 922 ; 
 
 (i) See StapiUon v. Slapilton 3 Giff. 154. 
 
 (1739), 1 Atk. 2 ; lWh.&T.L.C. (o) Gibson v. Russell (1843), 2 
 
 234 ; ante, p. 44. Y. & C. Ch. 104 ; Harrison v. Guest 
 
 (k) Nevill v. Snelling (1880), 49 (1855), 6 Be G. M. & G. 424; 
 
 L. J. Ch. 777 ; 15 Ch. D. 679. (1860), 8 H. L. C. 481 ; O'Sorkev. 
 
 (I) Gihon v. Xmsell (18431, 2 Bolingbroke (\818), 2 App. Cas. 814 ; 
 
 Y. & C. Ch. 104. See Griffiths v. Fry v. Lane (1888), 58 L. J. Ch. 
 
 Robins (1818), 1 Madd. 191. 113 ; 40 Ch. D. 312. 
 
 (m) Srenchley v. Miggins (1901), (p) St. Albyn v. Harding (1859), 
 
 70 L. J. Ch. 788. See Bromley v. 27 Beav. 11. 
 
 Smith (1859), 29 L. J. Ch. 18 ; 26 (g) Beynon v. Cook (1875), L. K. 
 
 Beav. 644. 10 Ch. 389. 
 
60 LEADING CASES IN EQUITY. 
 
 But this is by reason of an independent equity, and not because 
 the transaction is modified. Thus, a covenant in a mortgage to 
 pay premiums on policies cannot be enforced (r), but expenditure 
 upon the property in improvements must be allowed, it being 
 merely equity, qui eentit comniodum, sentire debet et onus (s). Where 
 personal security is set aside, it is upon the terms of repayment of 
 principal and interest at 5 per cent. (t). 
 
 Fraud. 
 
 [25] ADAM v. NEWBIGGING. (1888) 
 
 [57 L. J. Ch. 1066 ; 13 App. Cas. 308.] 
 
 In the exercise of its concurrent jurisdiction over 
 contracts induced by fraud, the court of equity can grant 
 relief where restitution is possible, although the de- 
 fendant was not consciously guilty of deception. It is no 
 answer to resiliation that the subject-matter has become 
 valueless, if it be due to its own inherent vice, and the 
 plaintiff has not contributed to the deterioration. 
 
 An action for damages cannot be maintained unless there be 
 fraud in fact (w) ; and according to the general presumption of law 
 {omnia rite esse acta prwsumuntur) it is for the plaintiff to establish 
 fraud in fact (x). Fraud is always a matter of inference, and if 
 there are sufficient facts established in evidence to warrant the 
 inference being drawn, the burden which the law throws upon the 
 plaintiff is discharged (y). In all cases in which an action can be 
 
 (r) Femi'll v. Alilhtr (1857), 26 App. Cas. 652 ; Daeict v. National 
 
 L. J. Ch. 699 ; 23 Beav. 172 ; Fire and Marine Insce. (1891), 60 
 
 Bromley v. Smith (1859), 29 L, J. Ch. L. J. P. C. 73 ; [1891] A. C. 485 ; 
 
 18 ; 26 Beav. 644. Whitehom Bros. v. Davison (1911), 
 
 (s) Longmate v. Ledger (1860), 2 80 L. J. K. B. 425 ; [1911] 1 K. B. 
 
 Giff. 157. 463. 
 
 (t) Graft v. Graham, (1863), 2 (y) Buller, J., Pasley v. Freeman 
 
 Do G. J. & S. 155; Aylesford (1789), 3 T. R. 60; Parke. B., 
 
 {Earl) v. Morris (1873), 42 L. J. Ch. Thorn v. Bigland (1853), 22 L. J. 
 
 546 ; L. R. 8 Ch. 484. Ex. 243 ; 8 Ex. 725 ; per cur. 
 
 (w) /Jerry v. Perk (1889), 58 L. J. Swinfen v. Chelmsford {Earf) (1860), 
 
 Ch. 864 ; 14 App. Cas. 337. See 29 L. J. Ex. 382 ; 5 H. & X. 890 ; 
 
 Pasley v. Freeman (1789), 3 T. R. Romilly, M.R., Ship v. Crosskill 
 
 61; Shirley, L. C. 542. (1870), 39 L. J. Ch. 552; L. R. 
 
 (x) Cavendish- Bentinck v. Fenn 10 Eq. 85. 
 (1888), 57 L. J. Ch. 652 ; 12 
 
FRAUD. 61 
 
 maintained at the common law a Court of Equity can give relief, 
 the topics adverted to in this note will be restricted to the cases in 
 which the Court of Chancery exercised a peculiar jurisdiction. 
 
 Fraud being a matter of inference, it is material to consider Unwarrant- 
 whether a party is justified in drawing a particular conclusion from able ">fer- 
 a given state of facts. Thus a map or plan only purports to repre- ac&3 ' 
 sont a state of facts existing, or intended to continue, at the date 
 when it was made, and the production of the map or plan does not 
 warrant the inference that that state of facts will continue (z). 
 Again, a certificate of shares merely represents to a third party 
 that at the date when the certificate is issued, or purports to be 
 issued, the person named was the registered holder of the particular 
 shares (a). So where a house which is contracted to be sold has 
 windows overlooking a piece of vacant ground, the purchaser is not 
 entitled to assume that at the expiration of the statutory period he 
 will enjoy a right of light in respect of those windows (b). 
 
 In cases relating to the sale of land, the right of rescission, in a Rescission 
 Court of law, was entirely dependent upon the power of the party ^fF com_ 
 defrauded to restore matters in statu quo ; accordingly if the pur- 
 chaser had taken possession, or received the rents and profits, he 
 was driven to his action for damages if that were available (c). 
 But a Court of Equity could do justice by fixing the purchaser 
 with an occupation rent, or taking an account of the rents and 
 profits received by him, and many contracts could be set aside with 
 complete justice either at the suit of the purchaser, or of the 
 vendor (d). After a sale of land has been completed by conveyance 
 and payment of the purchase-money, relief can be obtained in 
 equity only where the vendor has been shown to be guilty of fraud 
 in fact (e). A similar principle has been applied in the case of a, 
 sale of a chattel (/), but not where the goods are sold subject to a 
 condition (</). 
 
 (z) Squire v. Campbell (1S36), 6 (e) Blackburn v. Smith (18-19), 
 
 L. J. Ch. 41 ; 1 M. & Cr. 459 ; 18 L. J. Ex. 187; 2 Ex. 783. 
 
 Breynton v. L. $ N. W. Ry. (1846), (d) King v. King (18:i3), 1 M. & 
 
 Coop. t. Cott. 108 ; Tucker -v. Vowles K. 442; Lindsay Petroleum Co. v. 
 
 (1892), 62 L. J. Ch. 172 ; [1893] Hurd (1874), L. K. 5 P. C. 221 ; 
 
 1 Ch. 195. See Whitehousev. Hugh Aylesford (Earl) v. Morris (1873), 
 (1906), 75 L. J. Ch. 677 ; [1906] 42 L. J. Ch. 646 ; L. K. 8 Ch. 
 
 2 Ch. 283. 484. 
 
 («) Longman v. Bath Electric (e) Wilde v. Gibson (1848), 1 
 
 Tramways (1905), 74 L. J. Ch. 424 ; H. L. C. 605 ; Bebenlam r. Saw- 
 
 [1905] 1 Ch. 646. SeeBalleis Con- bridge (1901), 70 L. J. Ch. 525; 
 
 solidated Co., Ltd. v. Tomkinson [1901] 2 Ch. 98. 
 
 (1893), 63 L. J. Q. B. 134; [1893] (/) Seddon v. North Eastern Salt 
 
 A. C. 396. Co. (1904), 74 L. J. Ch. 199 ; 
 
 (5) Grecnhalghv.Brindley (1901), [1905] 1 Ch. 326. 
 
 70L.J. Ch. 740; [1901]2Ch. 324. (g) Sale of Goods Act, 1893, 
 
62 
 
 LEADING OASES IN EQUITY. 
 
 Concealment. 
 
 Partial 
 disclosure. 
 
 Underhand 
 practices. 
 
 Fraud may be perpetrated as well by the concealment of that 
 which is true as by the assertion of that which is false, and in some 
 cases there is a duly to disclose. Thus, in contracts of marine 
 insurance, the assured must disclose all matters which "would 
 influence the judgment of a prudent insurer in fixing the premium 
 or determining whether he will take the risk " (h). A person stand- 
 ing in a fiduciary relation to another cannot maintain a purchase 
 from that person unless there has been the fullest disclosure, whether 
 called for or not ()'). But the general rule is that the vendor of real 
 estate is under no obligation to disclose facts affecting the title (k), 
 although his failure to do so may be an answer to specific perform- 
 ance (l). Charges and incumbrances are matters of conveyance 
 and not of title, and need not be disclosed (m) ; but the non- 
 disclosure may be an element of fraud («). As fraud by assertion 
 is displaced by knowledge of the truth (a), so is fraud by conceal- 
 ment (p). 
 
 Disclosure, if partial, may mean that only half the truth is told, 
 and that half may represent a falsehood, and be fraudulent in fact, 
 by reason of the connection between it and the matter concealed (q). 
 Upon a similar principle, a vendor cannot require a purchaser to 
 assume, contrary to the fact, the truth of statements which he 
 knows to be false (r). 
 
 There are cases of conduct which cannot be regarded as involving 
 either an assertion of fact, or a concealment of the truth. Of thiB 
 character is the employment of a " puffer "at a sale with a view 
 of running up biddings. By the Sale of Land by Auction Act, 
 1867, which has been extended to sales by auction of goods by 
 sect. 58 of the Sale of Goods Act, 1.893, the common law rule is 
 
 s. 11, sub-s. 1 (b), s. 53 ; Patteshall 
 v. Tranter (1835), 4 L. J. K. B. 
 162; 3 A. &E. 103. 
 
 (h) Marine Insurance Act, 1906, 
 8. 18(2); Thames and Mersey Marine 
 Insurance v. " Gunford" Ship Co. 
 (1911), 80 L. J. P. C. 146 ; [1911] 
 A. C. 629. 
 
 (i) Brookman v. Rothschild (1831), 
 5Bli. N. S. 165; post, p. 69. 
 
 (k) Hume v. Poeock (1866), 35 
 
 L. J. Ch. 731; L. R. 1 Oh. 379. 
 
 See Re Banister, Broad v. Munton 
 
 1879), 48 L. J. Ch. 837 ; 12 Ch. 
 
 D. 131. 
 
 (1) Scott v. Alvarez (1895), 64 
 L. J. Ch. 821 ; [1896] 2 Ch. 603 ; 
 post, p. 157. 
 
 («n) Tovmsend v. Champernowne 
 (1827), 1 Y. & J. 449; Beaufort 
 
 {Duke) v. Glynn (1856), 3 Sm. & G. 
 213. See Att.-Gen. v. Cox (1850), 
 3 H. L. C. 240 ; Brownlie v. Camp- 
 bell (1880), 5 App. Cas. 925. 
 
 (») Torrance v. Bolton (1872), 42 
 L. J. Ch. 177 ; L. R. 8 Ch. 118. 
 
 (o) Dyer v. Hargrove (1805), 10 
 Ves. 505. 
 
 (p) OWfield v. Round (1800), 5 
 Ves. 508. 
 
 (q) Drysdale v. Mace (1854), 23 
 L. J. Ch. 230 ; 5 De G. M. & G. 
 103 ; Haygarth v. Wearing (1871), 
 40 L. J. Ch. 577 ; L. R. 12 Bq. 
 320; Sterry v. Combs (1871), 40 
 L. J. Ch. 595. 
 
 (r) Re Banister, Broad v. Munton 
 (1879), 48 L. J. Ch. 837 ; 12 Ch. D. 
 131 ; Blaiberg v. Keeves (1906), 75 
 L. J. Ch. 464 ; [1906] 2 Ch. 175. 
 
FRAUD. 68 
 
 confirmed, and the vendor must disclose the fact that a puffer will 
 be employed under penalty of rendering the sale void (a). Again, 
 conditions entitling the vendor to rescind a, contract for sale must 
 be exercised in a bond fide manner (£). 
 
 SAVAGE v. FOSTER. (1723) [26] 
 
 [9 Mod. ?5 ; 1 Wh. & T. L. C. 469.] 
 
 The defendant, being tenant in tail of lands, was an 
 instigating party, or at least privy, to a conveyance of 
 the lands to the plaintiff by a person who had no title 
 to do so. The defendant, believing he had a good title, 
 entered upon the land and built a house thereon. The 
 defendant, notwithstanding she was a married woman at 
 the date of the conveyance, was compelled to perfect the 
 title of the plaintiff out of her estate. 
 
 This case is frequently classed as one of fraud, but it is more 
 aptly referred to the law of estoppel. 
 
 It is a peculiarity of our law that a disseisor, i.e. , a trespasser << standin°-- 
 who, by occupation or otherwise, ousts the lawful possessor, acquires by." 
 by his wrongful act an estate in fee simple, with all its consequential 
 incidents, and this estate is good against all the world except the 
 true owner («). On the other hand, the rightful owner, until 
 barred by the Statute of Limitations, does not lose his proprietary 
 rights merely by non-assertion of his title (x). Consequently, a 
 person building upon the land of another acquires no right to be 
 compensated for his expenditure, unless he does so under a 
 misapprehension of his own title induced by, or known to, the true 
 owner (y), and it is also essential that the true owner should be 
 
 (») Thornett v. Haines (1846), 15 and cases there cited. 
 
 L. J. Ex. 230 ; 15 M. & W. 367 ; (x) Clarke v. Mart (1858), 27 
 
 Green v. Baverstock (18G3), 32 L. 3. L. J. Ch. 615; 6 H. L. 0.633; 
 
 C. P. 181 ; 15 C. B. N. S. 204. See Trustees, Executors, and Agenai Co. 
 
 Parfitt v. Jephson (1877), 46 L. J. v. Short (1888), 58 L. J. P. 0. 4 ; 
 
 C. P. 529. 13 App. Cas. 793 ; Pegge v. Neath 
 
 (t) Smith v. Wallace (1894), 64 District Tramways (1897), 67 L. J. 
 
 L. J. Ch. 240; [1895] 1 Ch. 385. Ch. 17 ; [1898] 1 Ch. 183. 
 
 See Morley v. Cook (1842), 12 L. J. (y) Clare Hall (Master) v. Harding 
 
 Ch. 136; 2 Ha. 106. (18*8), 17 L. J. Ch. 301; 6 Ha. 
 
 (u) Leake, Law of Land, p. 40, 273 ; Eamsden v. Dyson (1866), 
 
64 
 
 LEADING- OASES IN EQUITY. 
 
 Liability of 
 trustee for 
 answer to 
 inquiries. 
 
 Fraudulent 
 interference 
 with intended 
 act. 
 
 cognizant of his title (z). The principle is applicable to dealings 
 ■with personalty as well as with land (a). No rights can be acquired 
 by a person who knows the true state of facts (b). In one case 
 where a party knowing that property over which he had a claim. 
 was the subject of arbitration proceedings, and failed to intervene, 
 he was held bound by the result of the award (c). It is extremely 
 difficult even to guess at the principle upon which this case 
 proceeds. 
 
 A trustee is bound to account and to furnish particulars to his 
 beneficiary, but he is not bound to assist him in raising money 
 upon his trust fund (d). If the trustee, knowing that money is to 
 bo advanced upon the footing that his answers are correct, takes 
 upon himself to answer the questions, he may be precluded from 
 falsifying the answers and thus be called upon to make good his 
 representations (e). 
 
 The principles established by the leading case have been extended 
 so as to deprive a person of a benefit where he has interposed and 
 prevented another from doing an intended act which he was lawfully 
 entitled to do. As where a man is prevented from executing a will 
 or other document, or was prevented from suffering a recovery (/). 
 
 [27] HUGUEMIN v. BASELEY. (1807) 
 
 [14 Ves. 273 ; 1 Wh. & T. L. C. 259.] 
 
 In this case Lord Eldon, L.C., set aside a voluntary 
 settlement made by a widow in favour of a clergyman 
 and his family, which the clergyman had induced her to 
 execute by the exercise of undue influence. The settle- 
 
 L. R. 1 H. L. 129 ; Sampler v. 
 Hedges (1898), 67 L. J. Q. B. 545 ; 
 [1898J 1 Q. B. 678. See Parrott v. 
 Palmer (1834), 3 M. & K. 6:32. 
 
 (z) Bellv. Marsh (1903), 72L.J. 
 Oh. 360; [1903] 1 Ch. 528. 
 
 (a) Nicholson v. Hooper (1838), 4 
 M. & Cr. 179. 
 
 (*) See Martin v. L. C. $ I). Ri/. 
 (1866), 35 L. J. Ch. 795; L. B. 
 1 Ch. 501 ; Oceanic Steam Navi- 
 gation Co. v. Sullierberry (1880), 50 
 L. J. Ch. 308; 16Ch.D. 236. 
 
 (c) Govttt v. Richmond (1834). 7 
 Sim. 1. 
 
 (d) See ante, p. 42. 
 
 (e) Burrowcs v. Lock (1805), 10 
 Ves. 470, as explained in Low v. 
 Honcerie (1891), 60 L. J. Ch. 594; 
 [1891] 3 Ch. 82. See Porter v. 
 Muore (1904), 73 L. J. Ch. 729; 
 [1904] 2 Ch. 367. The student 
 must be warned that in the mouth 
 of an equity lawyer ' ' making good 
 representations" means one or 
 other of several things, some of 
 which are myths. 
 
 ( f) Middktonv. Middleton (1819), 
 1 J. & W. 94 ; Wood v. Midgeley 
 (is.il). 23 L. J. Ch. 553; 5 De G. 
 M. & G-. 41. See Bulkley v. WiU 
 ford (1834), 2 CI. & F. 102. 
 
FRAUD. 65 
 
 ment was set aside not only as against the party in fault, 
 but also as against the innocent recipients of her bounty. 
 
 When the principal case was decided, and for some years after- Present rale, 
 wards, it was necessary for the party challenging the propriety of 
 a gift upon the ground of undue influence to fehow affirmatively 
 that it had been so exercised (g). At the present day, the fact that 
 the parties stood in what is known as a fiduciary relation, raises an 
 inference that a gift from a party likely to be influenced is not his 
 unbiassed act, and it lies upon the recipient to establish that the 
 act was the free act of the donor (h). In practice it will be found 
 that very seldom is this burden held to be discharged. In reading 
 the reports of cases dealing with the topics discussed in this and 
 the following section, the student will probably find considerable 
 difficulty at first in reconciling the decisions in individual cases. 
 This is due to the fact that the word fraud was frequently used in 
 equity in connection with conduct which involved no moral delin- 
 quency, and to describe these two variants the distinguishing titles 
 of "legal fraud" and "moral fraud" were invented, the latter 
 phrase being applied where the party's conduct was fraudulent in 
 fact (i). But the distinction is of importance in practice. The 
 title of parties to relief is now irrespective of fraud in fact. In one 
 case where a party charged another, who stood in a fiduciary rela- 
 tion to him, with fraud in taking an illicit commission, although he 
 succeeded on the main question, the full Court of Appeal deprived 
 him of his costs of action, and made him pay the costs of action so 
 far as they were applicable to a charge of fraud which did not exist 
 in fact(&). In another case, the House of Lords, affirming the 
 decision of both Courts below, dismissed an action based upon 
 fraud, and refused to consider whether the case was not one in 
 which a Court of Equity would grant relief, although " there was 
 no actual fraud proved" (I). 
 
 As was said by one very eminent Chancery judge, adopting the Presumption 
 language of Sir Samuel Eomilly in the principal case : " the relief fr( ; m relation- 
 stands upon a general principle applying to all the variety of ™" 
 relations in which dominion may be exercised by one person over 
 another " (m). 
 
 ( g) See Nicol v. Vaughan (1832), L. J. Ex. 704 ; 3 Ex. D. 238. 
 
 1 CI. & F. 49 ; (1833), 1 01. & F. (*) Parker v. McKenna (1874), 
 
 495; Hunter v. Atkins (1834), 3 44 L. J. Ch. 425; L. R. 10 Ch. 
 
 M.. & K. 113; Casbomev. Barsham 96. S^e ScAolefieldv. Tempter (1859), 
 
 (1839), 2 Beav. 76. 4 De G. & J.429. 
 
 (A) WrigAt v. Garter (1902), 72 (I) Curaon v. Belworthy (1852), 
 
 L. J. Ch. 13*; [1903] ICh. 27. 3 H. L. C. 742. 
 
 (i) See Weir v. Bell (1878), 47 [m) Cottenham, L.C., Bent v. 
 
 K. F 
 
66 
 
 LEADING OASES IN EQUITY. 
 
 Family 
 relations — 
 husband's 
 wife. 
 
 Parent and 
 •hild. 
 
 Domestic 
 relation. 
 
 The rule of presumptive exercise of influence does not exist 
 where a married woman makes a gift to her husband (to). The 
 receipt by the husband of the income of a married woman's separate 
 property is presumably with her consent, and the husband is not 
 liable to account for it (o). 
 
 A gift to a parent from his child, if recently of age, throws upon 
 the parent the obligation to justify it ( p). A gift by a parent to a 
 child is an advancement (5). Where a son acted as solicitor to his 
 mother a gift to him was set aside on the ground that this fact 
 excluded the ordinary presumption of a. free gift(r), but this 
 decision is, perhaps, of doubtful authority (s). In the case of 
 resettlements of family property, different considerations apply, 
 and the father may be entitled to retain benefits obtained by the 
 exercise of parental influence (t). It is not clear how far the 
 relation of master and servant raises a presumption of undue 
 influence, where the master makes a gift to a servant. In one 
 case Lord Eldon required evidence of the actual exercise of that 
 influence, but in more recent times the Court has regarded these 
 gifts with considerable jealousy (u). In one case a gift to a 
 descendant of a former master, where it was alleged that the 
 servant felt "a grateful and affectionate attachment" to his former 
 master and benefactor, and his family, the feeling was described as 
 "just and creditable to him," but the gift to a son of his former 
 master was under the circumstances set aside (x). This seems to 
 be the only case in which a gift by a servant to a master or his 
 
 Bennett (1839), 8 L. J. Ch. 125 ; 
 4 M. & Cr. at p. 277. 
 
 («) Howes v. Bishop (1909), 78 
 L.J. K. B. 796; [1909] 2 K. B. 
 390. See Brink of Montreal v. Stuart 
 (1910), 80 L. J. P. C. 75; [1911] 
 A. C. 120. 
 
 (0) Caton v. Hideout (1849), 1 
 Mac. & G-. 599 ; Re Flamank, Wood 
 v. Cock (1889), 58 L. J. Ch. 518 ; 40 
 Ch. D. 461. See Be Dixon, Heunes 
 v. Dixon (1900), 69 L. J. Ch. 609 ; 
 [1900] 2 Ch. 561. 
 
 (p) Baker v. Bradley (1855), 25 
 L. J. Ch. 7 ; 7 Be G. M. & G. 
 597; Turner v. Collins (1872), 41 
 L. J. Ch. 558 ; L. B. 7 Ch. 329. 
 See Tucker v. Bennett (188S), 67 
 L. J. Ch. 607; 38 Ch.D. 1 : Powell 
 v. Pouell (1899), 69 L. J. Ch. 164 ; 
 [1900] 1 Ch. 243. 
 
 (?) Di/er v. Dyer (1788), 2 Cox, 
 92 ; ante, p. 32. See Beanland v. 
 
 Bradley (1854), 2 Sm. & G. 339 ; 
 Re Coomber, Coomber v. Coomber 
 (1911), 80 L. J. Ch. 399; [1911] 1 
 Ch. 723. 
 
 (r) Garrett v. Wilkinson (1848), 
 2 De G. & Sm. 244. 
 
 (s) Re Coomber, Coomber v. Coomber 
 (1911), 80 L. J. Ch. 399 ; [1911] 1 
 Ch. 723. 
 
 (t) Bellamy v. Sabine (1847), 17 
 L. J. Ch. 105 ; 2 Ph. 425 ; Hoghton 
 v. Hoghton (1852), 21 L. J. Ch. 
 482 ; 15 Beav. 278 ; Hartopp v. 
 Hartopp (1856), 25 L. J. Ch. 471; 21 
 Beav. 259 ; Hoblyn v. Hoblyn(U89), 
 41 Ch. D. 200. 
 
 («) Nantes v. Corrock (1803), 9 
 Ves. 182 ; Consett v. .Be«(1842), 11 
 L. J. Ch. 401 ; 1 T. & C. Ch. 569 ; 
 Bate v. Bank of England (1845), 9 
 Jur. 545. 
 
 (x) Gibson v. Russell (1843), 2 
 T. & C. Ch. 104. 
 
FRAUD. 67 
 
 descendants has been challenged, and is not conclusive on the 
 subject. 
 
 A gift from a client to his counsel {y), or to his solicitor (z), while Legal adviser 
 that relation subsists, cannot be supported by the legal adviser an(1 ouent - 
 unless the client is proved to have acted upon competent and 
 independent advice. This prohibition upon the legal adviser to 
 receive only lasts so long as the relation exists (a) ; but where it is 
 shown that the relation existed a short time prior to the gift the 
 legal adviser must show that it had ceased if he desires to retain 
 the gift (6). 
 
 A gift from a patient to his medical adviser may be challenged Doctor and 
 by the donor upon the same presumption of undue influence (c). P atlen t- 
 The principal case is an illustration of the application of the Spiritual 
 principle to a gift induced by the ascendancy gained by a spiritual a v }jer ana 
 adviser. There are other cases in which the Court has compelled 
 persons who have permitted weak-minded penitents to make away 
 with their property, to disgorge the benefits which they have 
 obtained (d). 
 
 A gift to a person standing in a fiduciary relation may be recalled Who may 
 not only by the donor, as in the principal case, but by the heir (e), a ^ S j^. e 
 the personal representative (/), a beneficiary under a will of the 
 donor (3), or the next of kin (A). If the donor subsequently conveys 
 the subject-matter of the gift to a third party the latter may assert 
 the donor's right to set aside the original gift, and that whether 
 the subsequent conveyance be for value or voluntary (£). 
 
 A person cannot retain the benefit of a gift made at the instance Innocent 
 •of the party standing in a fiduciary relation ; it is as invalid as a recl P lent - 
 gift to a party able to influence the donor (k). 
 
 (y) Brotvn v. Kennedy (1864), 33 (e) Middleton v. Sherburne (1841), 
 
 D. J. Ch. 342 ; 4 De G. J. & S. 217. 4 Y. & C. Ch. 358. 
 
 See Culey v. Stafford (Lord) (1857), (/) Dent v. Bennett (1838), 8 
 
 26 L. J. Ch. 865 ; 1 De G. & J. 238. L. J. Ch. 125 ; 4 M. & Cr. 269 ; 
 
 (z) Biles v. 7Vn/ (1895), 65 L. J. Noltidgev. Prince (I860), 29 L. J. 
 
 Q. B. 34 ; [1895] 2 Q. B. 679. Ch. 857 ; 2 Gift. 246. 
 
 (a) Justin v. Chambers (1837), 6 (g) Walker v. Smith (1861), 29 
 
 CI. & E. 1. Beav. 394. 
 
 lb) Brown v. Kennedy (1864), 33 (h) Middleton v. Sherburne (1841), 
 
 D.J.Ch. 312; 4DeG.J.&S.217. 4 T. & C. Ex. 358. 
 
 (c) Dent v. Bennett (1838), 8 (i) Dickinson v. Burrell (1866), 
 
 L. J. Ch. 125 ; 4 M. & Cr. 269 ; 35 L. J. Ch. 371 ; L. R. 1 Eq. 337. 
 
 Allen v. Davis (1850), 20 L. J. Ch. (k) Morley v. Louyhnan (1893), 
 
 44- 4 De G. & Sm. 133 ; Billagev. 62 L. J. Ch. 515; [1893] 1 Ch. 
 
 Southee (1852), 21 L. J. Ch. 472 ; 9 736 ; Liles v. Terry (1895), 65 L. J. 
 
 Ha. 534. Q. B. 34; [1895] 2 Q. B. 679; 
 
 Id) Nottidge v. Prince (1860), 29 Willis v. Barron (1902), 71 L. J. 
 
 D. J. Ch. 857 ; 2 Giff. 246. Ch. 609 ; [1902] A. C. 271. 
 
 f2 
 
68 
 
 LEADING CASES IN EQUITY. 
 
 Confirmation 
 of gift. 
 
 Testamentary 
 gifts. 
 
 Purchaser 
 from donee. 
 
 Independent 
 advice. 
 
 After the confidential relation has ceased to exist, the donor may- 
 confirm the gift (?), and this confirmation will be inferred from 
 lapse of time (to). And the gift may be confirmed by will (n). 
 
 It seems that these principles are not applicable to a testamentary 
 gift to a person standing in a fiduciary relation to the testator (o) ; 
 a strange anomaly, as a testator is so frequently spoken of as inops 
 consilii. 
 
 Although a gift may be impeached, a purchaser from the donee, 
 and without notice of the infirmity of his title, may maintain the 
 interest which he has acquired against the donor until he is repaid 
 his purchase-money ( p). 
 
 It cannot be laid down as a general principle that the party 
 must have independent advice, legal or other (q) ; but where the 
 circumstances call for the intervention of an independent third 
 party to advise or guide the person likely to be influenced, the 
 intervention must be a reality and not a mere formality (r). In 
 the case of a gift to a legal adviser, or one made at his suggestion 
 or referable to his influence, independent advice is obligatory if it 
 is sought to retain it; in the case of a sale or purchase it is 
 advisable but not essential (s). 
 
 (1) Mitchell v. Homfray (1881), 
 50 L. J. Q. B. 460 ; 8 Q. B. D. 
 587. See Re Metcalfe' s Trusts (1864), 
 33 L. J. Ch. 308 ; 2 De G. J. & S. 
 122. 
 
 (m) Allcard v. Skinner (1887), 56 
 L. J. Ch. 1052; 36 Ch. D. 145. 
 See Lyddon v. Moss (1859), 4 De G. 
 & J. 104. 
 
 (») Stump v. Goby (1852), 22 
 L. J. Ch. 352 ; 2 De O. M. & G. 
 623. 
 
 (o) Boyse v. Rossborough (1857), 
 6 H. L. C. 2 ; nom. Colclongh v. 
 Boyse, 26 L. J. Ch. 256 ; Parfitt v. 
 Lawless (1872), 41 L. J. P. 68; 
 L. R. 2 P. & D 462 ; Baudains v. 
 Richardson (1905), 75 L. J. P. C. 
 67 ; [1906] A. C. 169. 
 
 (p) Aldborough {Earl) v. Trye 
 (1840), 7 CI. &P. 436; Saveryy. 
 
 (1856), 25 L. J. Ch. 482 ; 5 
 H. L. C. 627 ; Bank of Montreal 
 v. Stuart (1910), 80 L. J. P. C. 
 75; [1911] A. C. 120. See Schole- 
 Jieldv. Templer (1859), 4 De a. & 
 J. 429. 
 
 (q) Carson v. Belworthy (1852), 
 3 H. L. C. 742. 
 
 (r) Gibson v. Russell (1843), 2 T. 
 & C. Ch. 104; Gibbs v. Daniel 
 (1862), 4 Giff. 1; Powells. Powell 
 (1899), 69 L.J. Ch. 164; [1900] 
 1 Ch. 243 ; Wright v. Carter (1902), 
 72 L. J. Ch. 138; [19021 1 Ch. 
 27. 
 
 (s) Montesquieu v. Sandys (1811), 
 18 Ves. 302 ; Holman v. Lnynes 
 (1854), 23 L. J. Ch. 529 ; 4 De G. 
 M. &G. 270; lilesv. Terry (1895), 
 65 L. J. Q. B. 34; [1895] 2 Q. B. 
 679. 
 
FBA UD. 69 
 
 BROOKMAN v. ROTHSCHILD. (1831) [28] 
 
 [5 Bli. N. S. 165.] 
 
 TYRRELL v. BANK OF LONDON. (1862) 
 [31 L. J. Oh. 369; 10 H. L. 0. 26.] 
 
 A person standing in a fiduciary relation to another 
 cannot sustain a purchase, as was decided in the first case, 
 of that other's property, or a sale, as was decided in the 
 second case, of his own property to that other, unless he 
 has made the fullest disclosure. In the first case Lord 
 Wynford said: "I can see no ground of actual fraud, 
 and there is no reason for impeaching this transaction 
 on that ground." 
 
 Cases dealing with the question of persons standing in a fiduciary- 
 position are considered in the preceding note. Upon considerations 
 of policy persons standing in a fiduciary position must justify their 
 acts in the case of purchases from persons -whom they can 
 influence it) ; but the evidence sufficient to entitle a person in a 
 fiduciary position to maintain his purchase falls short of that 
 required to entitle him to retain a gift (m). The cases with which 
 this note is mainly concerned do not rest upon any suggestion of 
 undue influence in fact. 
 
 The common law does not recognize the possibility of a man Purchase by 
 contracting with himself (x), and the equitable rule is the same {y). 
 It follows, as a necessary consequence, that a. conveyance by a 
 party to himself, even where he is exercising a power (z), is a 
 nullity. Originally a party could not convey to himself and 
 others, whether he was the sole conveying party, or one of several 
 
 a trustee or 
 agent. 
 
 If) Coles v. Trecothick (1804), 9 L. J. C. P. 262 ; L. K. 7 H. L. 
 
 Ves. 234 ; Sharp v. Leach (1862), 802. 
 
 31 Beav. 491. See Wright v. Carter (y) Ellis r. Kerr (1910), 79 L. J. 
 
 (1902), 72 L. J. Ch. 138 ; [1902] Ch. 291 ; [1910] 1 Ch. 529. 
 
 I Ch. 27. " if) Dowries v. Grazehrooh (1817), 
 («) McQueen v. Farquhar (1805), 3 Mer. 2( ; Martinson v. Clowes 
 
 II Ves. 467; Askham v. Barber (1882), 51 L. J. Ch. 594 ; 21 Ch. D. 
 (1853), 22 L. J. Ch. 769 ; 17 Beav. 857 ; Henderson v. Astwood, [1894] 
 37. A. C. 160 ; Moore, Nettlefold # Co. 
 
 (x) Sharman v. Brandt (1871), 40 v. Singer Manufacturing Co. (1904), 
 
 L. J. Q. B. 312; L. K. 6 Q. B. 73 L. J. K. B. 457 ; [1904] 2 K.B. 
 
 720 ; Robinson v. Mollett (1875), 44 820. 
 
70 LEADING GASES IN EQUITY. 
 
 conveying parties. This rule led to inconvenient results upon 
 appointment of new trustees, except in the case of freehold land, 
 where that result could he avoided by recourse to a conveyance 
 operating under the Statute of Uses. Now a party can convey to 
 himself and others property real or personal, including choses in 
 action, by force of sect. 21 of the Law of Property Amendment Act, 
 1859, and sect. 50 of the Conveyancing and Law of Property Act, 
 1881, but there is no means by which a person can convey 
 directly to himself alone. A trustee, or person in a fiduciary 
 relation, purchasing the interest of his beneficiary, or of the person 
 to whom he stands in a fiduciary relation, is bound to make the 
 fullest disclosure of matters affecting the value, in order to maintain 
 his purchase of the trust property (a). So, if a person in a fiduciary 
 relation (as in the case of principal and agent) sells his property to 
 a person to whom he stands in that relation, he must disclose the 
 fact that he is making a profit, and what the amount of that profit 
 is (b). A legal adviser seems to have had a purchase by him 
 challenged with greater frequency than any other, but this is due 
 to the position which he fills with regard to his client. A trustee 
 of property A. for a beneficiary may deal with him respecting 
 property B. if he is not a trustee of it for the same beneficiary, 
 without any question of possible influence arising. This considera- 
 tion does not apply in the case of a legal adviser. But a legal 
 adviser may, if not acting for the client, deal with him as if he 
 were an independent person, and is not to be treated as an outlaw (c). 
 And where it appeared that the client was the prime mover in the 
 sale to his legal adviser, who had acted all through in good faith, 
 and without suppressing any information, the Court refused to set 
 aside the transaction (d). Where legal advisers are concerned, the 
 Court has viewed transactions between them and third parties with 
 considerable jealousy, not requiring the relation of legal adviser 
 and client to be strictly established (e). 
 Liberty to Where liberty to bid at an auction is given to a person in a 
 
 purchase. fiduciary position he is relieved from all obligations of disclosure 
 
 (a) Charter v. Trevelyan (1844), 39 L. J. Ch. 636 ; L. E. 5 Ch. 
 11 CI. & F. 714 ; Tate v. Williamson 551. 
 
 (1866), L. K. 2 Ch. 5. (a!) Montesquieu v. Sandys (1811), 
 
 (b) Kimberv. Barber (1813), li.TL. IS Ves. 302. 
 
 8 Ch. 66; Alt. -Gen. (Canada) v. (e) Goddard v. Carlisle (1821), 9 
 
 Standard Trust Co. of N. Y. (1911), Pri. 169; Denlonv. Dnnner (1856), 
 
 80 L. J. P. C. 189; [1911] A. C. 23 Beav. 285; Hobday v. Peters 
 
 498. (1860), 29 L. J. Ch. 780 ; 28 
 
 (c) Austin v. Chambers (1837), 6 Beav. 349 ; Zuddy's Trustee v. 
 CI. &F. 1; Guest v. Smythe (1870), Peard (1886), 56 L. J. Ch. 884; 
 
 33 Ch. D. 500. 
 
FRAUD. 71 
 
 and is restored generally to his individual rights (/). The Court 
 cannot, as against the wishes of adult parties, relieve a person in a 
 fiduciary position from his incapacity (g). And a trustee is not at 
 liberty to retire from a trust with a view to make a purchase from 
 a beneficiary (h). 
 
 Executors, trustees in bankruptcy, or trustees under a creditor's Purchase 
 deed, cannot purchase for their own benefit the debts due to third ^ rom t ) 1 ' rd 
 parties at less than the face value ; any excess of the value over the f rau j „f 
 sum actually paid enures to the benefit of the estate which they beneficiary, 
 administer (i). An agent to purchase land cannot purchase the & c - 
 land from a third person except as a trustee for his principal, and 
 the case being one of fraud if he denies the trust the Statute of 
 Frauds offers no defence (k). 
 
 As regards mortgages to a person in a fiduciary position, they Mortgages, 
 are entitled to a sale of the property but not to foreclosure (!■). A 
 solicitor-mortgagee (where no independent solicitor is employed by 
 the client) must justify the insertion of unusual clauses if 
 unfavourable to the client (m) ; but a mortgagee is not a trustee for 
 the mortgagor (n). Thus, the purchase of an equity of redemption 
 by the mortgagee from the mortgagor is a valid transaction (o). 
 And a second mortgagee purchasing the mortgaged property from 
 a first mortgagee exercising his power of sale acquires a valid 
 absolute title against puisne incumbrancers (if any) and his 
 mortgagor ( p). A mortgagor purchasing from the first mortgagee 
 selling in exercise of a power of sale cannot set up the absolute 
 title against a puisne incumbrancer, for that would enable him to 
 defeat his own deed (q) ; but where a solicitor induced a person, 
 
 (/) Coaks v. Boswell (1886), 55 L.J. Ch. 39; 1 Gift. 316; Eyre v. 
 
 L. J. Ch. 761 ; 11 App. Cas. 232. Hughes (1876), 45 L. J. Ch. 395 ; 
 
 (g) Exp. James (1803), 8 Ves. 2 Ch. D. 148 ; Cockbum y. Edwards 
 
 337 ; Tennant v. Trenchard (1869), (1881), 51 L. J. Ch. 46 ; 18 Ch.D. 
 38 L. J. Ch. 661 ; L. R. 4 Ch. 449. 
 
 537. (n) Warner v. Jacob (1882), 51 
 
 (h) Spring v. Pride (1864), 4 L. J. Ch. 642; 20 Ch. D. 220; 
 
 De G. J. & S. 395. Taylor v. Russell (1892), 61 L. J. 
 
 (1) Exp. James (1803), 8 Ves. Ch. 657 ; [1892] A. C. 244. 
 337; Hamilton v. Wright (1842), (0) Knight v. Majoribanks (1849), 
 
 9 CI. & F. 111. See Bayly v. 2 Mac. & G. 10 ; Reeve v. Lisle 
 
 Wilkins (1846), 3 Jo. & L. 630. (1902), 71 L. J. Ch. 768 ; [1902] 
 
 (k) Rochefoucauld v. Boustead A. C. 461. 
 (1896), 66 L. J. Ch. 74 ; [1897] {p) Shaw v. Bunny (1864), 34 
 
 1 Ch. 196. L. J. Ch. 257 ; 2 De G. J. & S. 
 
 U) Att.-Gen. v. Hardy (1851), 468 ; Kirkwood v. Thompson (1865), 
 
 20 L. J. Ch. 450 ; 1 Sim. N. S. 34 L. J. Ch. 501 ; 2 De G. J. & S. 
 
 338 ; Tennant v. Trenchard (1869), 613. 
 
 38 L. J. Ch. 661 ; L. R. 4 Ch. (q) Otter v. Vaux (Lord) (1856), 
 
 537. 26 L. J. Ch. 128 ; 6 De G. M. & 
 
 (m) Cowdry v. Day (1859), 29 G. 638. 
 
72 
 
 LEADING CASES IN EQUITY. 
 
 who filled the characters of heir and personal representative, to 
 purchase an incumbrance upon the estate for a less sum than that 
 secured by it, without disclosing the fact that it 'would enure for 
 his benefit, the Court allowed the full amount to be claimed against 
 the solicitor who was a subsequent incumbrancer (r). 
 Illicit gains. A trustee cannot make any profit out of his trust («). An 
 agent cannot retain a profit paid to him by a third party if it is 
 challenged by his principal, who is entitled to it (J). If the profit 
 is not a secret profit — i.e., if it is actually or presumptively known 
 to the principal, as would be a customary trade discount or allow- 
 ance — the agent cannot be made accountable for it(«). Again, 
 the profit must arise as a direct consequence of his trusteeship or 
 agency (x). In considering whether a trustee or person in a fidu- 
 ciary relation should be permitted to retain an illicit gain, the 
 analogy is that established respecting purchases, and not that 
 relating to gifts (y). 
 Profits by Where a corporation fills a position which in individuals would 
 
 corporators. ^e kgj^ ^. Q ^ 6 g ( j uo i ar y i the trend of modern decisions is to permit 
 individual corporators and the officers of a corporation to fill a dual 
 capacity. Thus, a. member of a corporation may sell to that 
 body (z) : and a director, if a member of the corporation, may 
 vote as an individual shareholder in respect of a profit contract 
 made with the corporation (a) ; so, three directors, who were solici- 
 tor, surveyor, and accountant respectively, were allowed to charge 
 and retain emoluments against a third person for whom the com- 
 pany of which they acted as directors acted as agent (&). But these 
 cases are quite consistent with those in which a fraudulent person 
 has been hit while masquerading under the guise of a corpora- 
 tion (c). 
 
 (r) Bayly v. WilMns (1846), 3 
 Jo. & L. 630. 
 
 (s) See notes to Robinson v. Pett 
 (1734), 3 P. Wms. 249 ; post, p. 183. 
 
 (t) Parker v. MeKenna (1874), 44 
 L. J. Oh. 425 ; L. R. lu Oh. 96. 
 This was a common law right : 
 Morrison v. Thompson (1874), 43 
 L. J. Q. B. 215 ; L. K. 9 Q. B. 
 480. 
 
 (») Great Western Insurance v. 
 Cmliffe (1874), 43 L. J. Ch. 741 ; 
 L. H. 9 Ch. 525 ; Re Haslam and 
 Sier Evans (1902), 71 L. J. Ch. 
 374; [1902] 1 Ch. 765 ; Att.-Om. 
 {Canada) v. Standard Trust Co. of 
 N. Y. (1911), 80 L. J. P. C. 189; 
 [1911] A. C. 498. 
 
 (%) Re Dover Coalfield Extension 
 
 (1907), 77 L. J. Ch. 94; [1908] 1 
 Oh. 65 ; Re Lewis, Lewis v. Lewis 
 (1910), 103 L. T. 495 ; Bath v. 
 Standard Land Co. (1911), 80 L. J. 
 Ch. 426; [1911] 1 Ch. 618. 
 
 (v) Re Haslam and Sier Evans 
 (1902), 71 L. J. Ch. 374; [1902] 
 1 Ch. 765. 
 
 (z) Farrar v. Farrars, Ltd. 11888), 
 58 L. J. Ch. 185 ; 40 Ch. D.' 395. 
 
 (a) North West Transport Co. v. 
 Beatty (1887), 56 L. J. P. C. 102 ; 
 12 App. Cas. 589. 
 
 (b) Bath v. Standard Land Co. 
 (1911), 80 L. J. Ch. 426; [1911] 1 
 Ch. 618. See Re Dover Coalfield 
 Extension, Ltd. (1907), 77 L. J. Ch. 
 94 ; [1908] 1 Ch. 65. 
 
 [p) Exp. Brougham, Re Darby 
 
FRAUD. 73 
 
 Where a purchase is set aside upon the ground of the relation- Terms of 
 ship existing between the parties, the Court treats the purchaser in reuet - 
 the light of a mortgagee (d). In some cases — probably where the 
 conduct was reprehensible — the purchaser has received no mercy. 
 Thus in one case the property was ordered to be put up by auction 
 at an upset price equal to the consideration paid, and if no more 
 was bid the purchase was to stand (e). The latter seems to be the 
 proper order where a purchase is set aside at the suit of infant 
 beneficiaries (/). 
 
 In one case where the circumstances of suspicion called for a Evidence of 
 strict investigation of the facts, the Court put upon the purchaser consideration, 
 the duty of establishing the actual amount paid by way of con- 
 sideration. But the affidavit of the purchaser — a solicitor and 
 confidential agent — being met by no evidence in denial by his 
 principal, he was held to have discharged the burden which the 
 order of the Court had put upon him (</). A false statement of the 
 consideration has been sometimes regarded as a circumstance of 
 fraud (A). 
 
 BOURNE v. SWAN & EDGAR, LTD. (1902) [29] 
 
 [72 L. J. Ch. 168 ; [1903] 1 Ch. 211.] 
 
 This case contains a review of the cases dealing with 
 the equitable principle that where goods are not protected 
 by a registered trade mark, the plaintiff may succeed in 
 obtaining an injunction to prevent a rival trader from 
 " passing off " his goods as and for the goods of the plain- 
 tiff, without showing that the defendant is guilty of fraud, 
 or that a single person has been deceived. 
 
 The law relating to the registration of trade marks depends upon Registered 
 statute, and is too recondite a subject to be considered in an trademarks. 
 
 (1910), 80 L. J. K.B. 180; [1911] Dow, 29; further proceedings, 
 
 1 E. B. 95. nom. Morgan v. Evans (1834), 3 01. 
 
 (d) Vhennell v. Martin (1831), 9 & F. 15y ; Tomson v. Judge (1855), 
 
 L. J. (O. S.) Ch. 208 ; Trevelyan v. 24 L. J. Ch. 785 ; 3 Drew. 306. 
 White (1839), 1 Beav. 588. (h) Filmer v. Gott (1774), 4 Bro. 
 
 le) Exp. Lacey (1802), 6 Ves. P. C. 230; Uppington v. Sullen 
 
 626. (1842), 2 Dru. & War. 184 ; Gibson 
 
 (/) Campbell v. Walker (1800), 5 v. Russell (1843), 2 Y. & C. Ch. 
 
 Ves. 678; affd. (1807), 13 Ves. 104. See Harrison v. Guest (1860), 
 
 601. 8 H. L. C. 481. 
 
 (^) Morgan v. Lewes (1816), 4 
 
74 
 
 LEADING OASES IN EQUITY. 
 
 Examples of 
 passing -off : 
 similarity of 
 name. 
 
 Name or 
 word descrip- 
 tive of goods. 
 
 Get-up. 
 
 Plaintiff 
 
 domiciled 
 
 abroad. 
 
 elementary work. The owner of a registered trade mark is, of 
 course, entitled to the assistance of the Court to protect his right 
 by injunction. 
 
 Everyone is entitled to carry on business in his own name, 
 provided he does not thereby induce mistakes as to identity (?'). In 
 the case where choice of a trade name is available, as in the name 
 of a registered company, the Court has generally required a clear 
 diversity of name (k). 
 
 A name or word may describe an article of commerce, and may 
 then be used by others in a similar connection, unless it connotes 
 by user the goods of a particular trader, in which event it is 
 obligatory upon any other trader to employ means by which his 
 goods may be readily distinguished from those of the other (I). 
 
 The deception may consist in the get-up of the goods (m). 
 
 It would be wearisome and unprofitable in an elementary treatise 
 to discuss at length the various shifts (more creditable to the 
 inventive genius of the parties than to their honesty) by which 
 attempts have been made to appropriate a neighbour's trade by 
 dishonourable practices. One defendant pleaded that he was being 
 prevented from telling the truth, an argument easily disposed 
 of («). 
 
 The remedy is given in respect of damage suffered by one person 
 by reason of a deceit practised upon another by the defendant (o). 
 It follows, therefore, that a person resident and domiciled abroad 
 may pursue all the remedies open to a person domiciled and 
 
 (i) Burgess v. Burgess (1853), 22 
 L. J. Ch. 675 ; 3 De G. M. & G-. 
 896 ; Tartan v. Turton (1889), 58 
 L. J. Ch. 677 ; 42 Ch. D. 128. 
 
 (k) North Cheshire and Manchester 
 Brewery Co. v. Manchester Brewery 
 Co. (1898), 68 L. J. Ch. 74 ; [1899] 
 A. C. 83 ; Punhard and Levassor 
 (Societe, §c.) v. Panhard Levassor 
 Motor Co., Ltd. (1901), 70 L. J. Ch. 
 738 ; [1901] 2 Ch. 513 ; Fine Cotton 
 Spinners and Btoublers Assn. v. 
 Hardwood, Cash # Co., Ltd. (1907), 
 76 L. J. Ch. 670; [1907] 2 Ch. 
 184. 
 
 (I) Singer Manufacturing Co. v. 
 Loog (1882), 52 L. J. Ch. 481 ; 8 
 App. Cas. 15 ; Reddaway v. Banham 
 (1896), 65 L. J. Q. B. 381 ; [1896] 
 A. C. 199; Cellular Clothing Co. v. 
 Maxton # Murray (1899), 68 L. J. 
 
 P. C. 72 ; [1899] A. C. 326 ; Be 
 Burroughs, Wellcome $ Co.'s Trade 
 Marks (1904), 73 L. J. Ch. 471 : 
 [1904] 1 Ch. 736. 
 
 (m) Win. Edge § Sons, Ltd. v. 
 Win. NiccoU $■ Sons, Ltd. (1911), 
 80 L. J. Ch. 744; [1911] A. C. 
 693. 
 
 (») See Beddaway v. Banham 
 (1896), 65 L. J. Q. B. 381 ; [1896] 
 A. C. 199. See also Birmingham 
 Vinegar Brewery Co. v. Powell 
 (1897), 66 L. J. Ch. 763; [1897] 
 A. C. 710 ; Saxlehner v. Apollinaris 
 Co. (1897), 66 L. J. Ch. 533 ; [1897] 
 1 Ch. 893. 
 
 (o) Sykes v. Sykes (1824), 3 L. J. 
 (O. S.) K. B. 46 ; 3 B. & C. 541 ; 
 Singer Manufacturing Co. v. Loog 
 (1882), 52 L. J. Ch. 481 ; 8 
 App. Cas. 15. 
 
FRAUD. 75 
 
 resident in this country for a sale here of his goods under a false 
 trade mark or trade designation (p). 
 
 A plaintiff has to come into a Court of equity with clean hands ; Fraud on part 
 if he has been guilty of deception on the public he will be refused 0I plaintiff, 
 relief (q) — a principle not unheard of in common law Courts (r). 
 But the use of the words "patented" or the like(s), or "trade 
 mark " (£), do not import that the goods are protected by patent, or 
 that the mark is a registered trade mark, and consequently is not 
 a bar to relief. But there is no compulsion on the Court to give 
 a rascally defendant, if successful on this ground, his costs of 
 action (it). 
 
 The party whose goods are sold unlawfully upon the principles Form of 
 of the foregoing cases may obtain an order for an injunction order, 
 restraining future sales without properly distinguishing them, and 
 an account of profits derived by the defendant from the sale, and 
 the defendant is not entitled to exclude from the account profits 
 arising from sales made to persons who purchased the goods as 
 those of the defendant {x). Where the user of a name adopted for 
 trade purposes was intended to be used only in connection with 
 a particular trade, and its user in that connection was fraudulent 
 and deceptive, an injunction was granted without qualification 
 restraining the defendant from using the name(v)- 
 
 Where a person has unwittingly invaded the plaintiff's rights but Innocent 
 ceases to do so as soon as the matter is brought to his notice and tort-feasor, 
 offers not to repeat the offence, or otherwise do his best to observe 
 the rights of the plaintiff, it is no answer to the action so far as the 
 claim to an injunction is concerned, but the defendant so trying to 
 remedy the wrong will not be fixed with costs (z). 
 
 (p) Collins Co. v. Brown (1857), (t) Sen Sen Co. v.Brittens (1899), 
 
 3 K. & J. 423 ; Fanhard $• Levassor 68 L. J. Ch. 250 ; [1899] 1 Ch. 
 
 (Societe, $c) v. Fanhard Levassor 692. 
 
 Motor Co., Ltd. (1901), 70 L. J. Ch. (k) Newman v. Pinto (1887), 57 
 
 738; [1901] 2 Ch. 513. See Lecou- L. T. 31. See King v. Gillard 
 
 turierv. Mey (1910), 79 L. J. Ch. (1905), 74 L. J. Ch. 421; [1905] 
 
 394 ; [1910] A. C. 262. 2 Ch. 7. 
 
 (q) Perry v. Truefitt (1842), 6 (x) Lever v. Goodwin (1887), 36 
 
 Beav. 66 ; Newman v. Pinto (1887), Ch. D. 1. 
 
 57 L. T. 31. SeeFeFuente's Trade (y) Pinet # Cie. v. Maison Louis 
 
 Mark (1891), 60 L. J. Ch. 308 ; Pinet (1897), 67 L. J. Ch. 41 ; 
 
 [1891] 2 Ch. 166; Siegert v. Find- [1898] 1 Ch. 179; Fanhard ti; 
 
 later (1878), 47 L. J. Ch. 233; 7 Levassor (Societe, $c.) v. Fanhard 
 
 Ch. D. 801. Levassor Motor Co.. Ltd. (1901), 70 
 
 (r) Wright v. Tallis (1845), 14 L.J. Ch. 738; [1901] 2 Ch. 513. 
 
 L. J. C. P. 283 ; 1 C. B. 893. Cf. Jackson v. Normanbu Brick Co. 
 
 (s) Ford v. Foster (1812), 41 L. J. (1899), 68 L. J. Ch. 407; [1898] 
 
 Ch. 682 ; L. R. 7 Ch. 611 ; Coch- 1 Ch. 438. 
 
 rane v. Macnish (1896), 65 L. J. (2) Millington v. Fox (1838), 3 
 
 P. C. 20 ; [1896] A. C. 225. M. & Cr. 338 ; Upmann v. Flkan 
 
76 
 
 LEADING CASES IN EQUITY. 
 
 [30] 
 
 Limitation of 
 action in 
 Chancery. 
 
 GIBBS v. GUILD. (1882) 
 
 [51 L. J. Q. B. 313 ; 9Q.B. D. 59.] 
 
 Where a defendant sued in respect of fraudulent mis- 
 representations pleads the Statute of Limitations as a 
 bar to the action, the plea is displaced if the plaintiff 
 can show that he did not discover and had not reasonable 
 means of discovering the fraud within the statutory period, 
 and that the defendant fraudulently concealed the exist- 
 ence of the fraud until a period within the statutory 
 period. 
 
 The Court of Chancery in the exercise of its exclusive jurisdic- 
 tion did not fix any absolute time within which actions should be 
 commenced, but it refused relief upon stale claims, or where there 
 had been laches, or other default, on the part of the plaintiff (a). 
 In matters of concurrent jurisdiction the Court gave effect to 
 statutes of limitation, which prima facie did not apply to Courts of 
 Equity (6), to the same extent as Courts of Common Law, subject 
 to this exception, that in cases of fraud the effect of the statute 
 was avoided where there had been a fraudulent concealment, an 
 exception which the Courts of Common Law did not admit (c). 
 But there is no other special equity to relieve against the effect of 
 the statute where it is applicable (d), or to afford relief within a 
 period short of that fixed by statute, unless there be some indepen- 
 dent equity, as a person standing by and not asserting his rights to 
 the prejudice of a party acting in ignorance of those rights (e). 
 
 (1871), 41 L. J. Oh. 246 ; L. R. 7 
 Ch. 130 ; Slazenger v. Spalding 
 (1909), 79 L. J. Ch. 122; [1910] 
 1 Ch. 257. 
 
 (a) Re Maddever, Three Towns 
 Bkg. Co. v. Maddever (1884), 53 
 L. J. Ch. 998 ; 27 Ch. D. 523 ; 
 Masonic Life Assce. v. Sharpe (1891), 
 61 L. .T. Ch. 193 ; [1892] 1 Ch. 154 ; 
 Charter v. Watson (1898), 68 L. J. 
 Ch. 1 ; [1899] 1 Ch. 175 ; London 
 and Midland Bk. v. Mitchell (1899), 
 68L. J.Ch.668; [1899] 2 Ch. 161. 
 
 (b) Sovenden v. Annesley (Lord) 
 (1806), 2 Suh. & L. 607 ; Knox v. 
 Gt/e (1872), 42 L. J. Ch. 234; 
 L. R. 5 H. L. 656. 
 
 (c) Imperial Gaslight and Coke Co. 
 v. London Gaslight Co. (1854), 23 
 L. J. Ex. 303 ; 10 Ex. 39. 
 
 (d) Thompson v. Leake (1815), 1 
 Madd. 59 ; Moore v. Knight (1891), 
 60 L. J.Ch. 271 ; [1891] 1 Ch. 547; 
 Willis v. Howe (Earl) (1893), 62 
 L. J. Ch. 690; [1893] 2 Ch. 545; 
 Betjemann v. Betjemann (1895), 64 
 L. J. Ch. 641 ; [1895] 2 Ch. 474. 
 
 (e) Fiillwood v. Fullwood (1878), 
 47 L. J. Ch. 459; 9 Ch. D. 176; 
 Be Baker, Collins v. Rhodes (1882), 
 51 L. J. Ch. 315 ; 20 Ch. D. 230. 
 See Savage v. Foster (1723), 9 Mod. 
 35 ; ante, p. 63. 
 
FRAUD. 77 
 
 There is a general presumption in favour of legality, one result Means of 
 of which is that fraud must be established affirmatively (/). By knowledge. 
 an extension of this principle of evidence, it is for the plaintiff to 
 displace any defence based upon lapse of time by showing affirma- 
 tively, not only that he had not actual knowledge, but also that by 
 reasonable diligence he could not have unmasked the fraud (g). 
 Where, however, the plaintiff shows matter sufficient to displace the 
 operation of the statute, the burden is shifted and the defendant 
 must prove knowledge, or the means of knowledge, of facts sufficient 
 to support a plea of confirmation (h). 
 
 Gift. 
 
 STANDING v. BOWRING. (1885) [31] 
 
 [55 L. J. Ch. 218; 31 Ch. D. 282.] 
 
 In this case the plaintiff transferred consols into the 
 joint names of herself and the defendant. She sought 
 to reeall the gift, but could not prove any circumstance 
 of mistake, surprise, or undue influence, and the Court 
 refused to give her any relief. 
 
 The gift of a chattel capable of delivery could be effected at the Gifts of 
 common law in one of two ways only, namely, by words of present chattelH at the 
 gift and delivery, or by a deed of gift. Failing either of these 
 methods the attempted gift was a nullity (»'). Where the gift is 
 made per verba de presenti, and delivery, they need not be contem- 
 poraneous ; the delivery may precede or succeed the gift (&). And 
 where the donor is out of possession he need not resume possession 
 for the purpose of delivering chattels formally to the donee, it 
 is sufficient that enough is done to effect a change of property (I). 
 A gift once effective cannot be recalled, as is decided by the 
 principal case; but if a misrepresentation has been made to 
 
 (/) See ante, p. 60. (») Cochrane v. Moore (1890), 59 
 
 (g) Lawrance v. Xorreys (lord) L. J. Q. B. 377; 25 Q. B. D. 57. 
 
 (1890), 59 L. J. Ch. 681 ; 15 (h) Re Alderson, Alderson v. Peel 
 
 App. Gas. 210 ; Willis v. Howe (1891), 64 L. T. 645. 
 
 {Bart) (1893), 62 L. J. Ch. 690; {I) Kilpin v. Ratley (1892), 1 
 
 [1893J 2 Ch. 545 ; Betjemann v. Q. B. 582 ; Rawlinson v. Mort 
 
 Betjemann (1895), 64 L. J. Ch. (1905), 93 L. T. 555. See Gain v. 
 
 641 ; [1895] 2 Ch. 474. Moon (1896), 65 L. J. Q. B. 587 ; 
 
 (h) Charter v. Trevelyan (1844), [1896] 2 Q. B. 283. 
 
 11 01. & F. 714. 
 
78 
 
 LEADING CASES IN EQUITY. 
 
 Things 
 incapable of 
 delivery. 
 
 Imperfect 
 gift. 
 
 induce the gift, and it is an immaterial circumstance that it was 
 made without any sinister intent, the gift is voidable at the instance 
 of the donor (m). 
 
 Some subject-matters are, in their nature, incapable of delivery. 
 Where a person purchases land or other property incapable of 
 delivery, and takes a conveyance in the name of a third party, there 
 is a resulting trust in his favour unless it is displaced upon the 
 equitable doctrine of advancement (re). In the case of a voluntary 
 conveyance of freehold land, a series of decisions established that 
 it was competent to the executing party to recall the gift by 
 means of a sale to a purchaser for value, even if he had notice 
 of the preceding disposition (o), but by the Voluntary Conveyances 
 Act, 1893, he can no longer do so, unless the conveyance was, in fact, 
 fraudulent. In the case of an equitable interest in property not 
 assignable at law, it is sufficient that the donor has done all in his 
 power to divest himself of his interest therein ( p) ; but this rule 
 only applies to a, proprietary right, and not to a mere expect- 
 ancy (j). In the case of land or an interest in land, the formality 
 of writing is essential by force of the Statute of Frauds. 
 
 A Court of Equity will not compel an intending donor or hie 
 representative to render an imperfect gift inter vivos effective (r). 
 In the case of a gift mortis causa (s) the Court does compel the 
 representative to perfect the title of the donee (t). But in the eyes 
 of a, Court of Equity the heir or devisee, and the next of kin or 
 legatee, are regarded as volunteers («), although it is not easy to 
 understand why the Court did not stay its hand. In the case of a 
 gift inter vivos, the Court will lend its assistance where there has 
 been a defective execution of a power (x) ; but it must be remem- 
 bered that the Court of Chancery has sometimes treated powers as 
 being fiduciary for the benefit of the objects (y), which suggests 
 the origin of that exception. 
 
 (m) Me Glubb, Bamfleld v. Rogers 
 (1900), 69 L. J. Ch. 2/8 ; [1900] 1 
 Ch. 354. 
 
 (») Dyer v. Dyer (1788), 2 Cox, 
 92 ; ante, p 32. 
 
 (o) Doe v. Manning (1807), 9 
 East, 59. " That decision was in 
 1807, and has been followed ever 
 since": JesBel, M.R , Trowell v. 
 She«ton (18 T8), 47 L. J. Ch. 738; 
 8 Ch. D. 318. 
 
 (p) Kehwich v. Manning (1851), 
 21 L. J. Ch. 577 ; 1 De «. M. 4 
 
 a. 176. 
 
 (r/) Me Ellmborough, Towry-Law 
 v. j;ttru (1903). 72 L. J. Ch. 218 ; 
 [1903] 1 Ch. 697. 
 
 (r) Edwards v. Jones (1836), 6 
 
 L. J. Ch. 194 ; 1 M. & Cr. 226 ; 
 Weale v. Ollive (1853), 17 Beav. 
 252 ; Beech V. Keep (1854), 23 
 L. J. Ch. 539 ; 18 Beav. 285. 
 
 (s) Post, p. 80. 
 
 (t) Me Billon, Baffin v. Buffin 
 (1890), 59 L. J. Ch.420; 44Ch.D. 
 76. 
 
 («) Oxendon v. Compton (Lord) 
 (1793), 2 Vee. Jr. 69. 
 
 (x) Eennard v. Kennard (1872), 
 42 L. J. Ch. 280; L. R. 8 Ch. 
 227. 
 
 (y) Brown v. Biggs (1799), 4 Ves. 
 708 ; (1800), 5 Ves. 495 ; (1803), 8 
 Ves. 561 ; post, p. 144. See Morgan 
 v. Milman (1853), 22 L. J. Ch. 
 897 ; 3 De G. M. & G. 24. 
 
GIFT. 79 
 
 In some cases, effect has been given indirectly to an imperfect 
 gift through the medium of a declaration of trust (2), but it is 
 impossible to deduce any satisfactory principle upon which these 
 oases are to be distinguished from those in which the Court has 
 refused to treat a donor as a trustee in the absence of proof that he 
 was willing to undertake that position (a). Where a person makes 
 an imperfect gift of a specific item of personal property to a person 
 whom he appoints executor or one of several executors of his will, 
 and there is evidence of a continued intention to benefit that person, 
 there the gift will be treated as effective (i). 
 
 It is convenient here to dispose of a doctrine which at one time Verba de 
 found favour in the eyes of some equity judges, and which was future 
 summed up in the phrase " making good representations." This 
 ■doctrine once escaped the sanction of a judicial decision by the 
 fortuitous circumstance of the composition of the Courts. In the 
 case referred to (c) Lord Bomilly had decided in favour of the 
 doctrine, and upon appeal his decision stood affirmed, owing to the 
 divergent views of Knight Bruce, L.J., and Lord Oranworth, L.J. 
 The case was taken to the House of Lords after the promotion of 
 Lord Cranworth to the office of Lord Chancellor, and he with the 
 concurrence of Lord Brougham, against the opinion of Lord St. 
 Leonards, reversed the decisions of both the Courts below. 
 Although the opinion of a minority thus became effective, it is 
 -universally admitted that this decision was correct. As has been 
 pointed out upon more than one occasion (d), the cases resolve 
 themselves into one of two classes — fraud or contract. Thus where 
 a father wrote to his intended son-in-law : ' ' Tou are, of course, 
 aware that with my large family, Eliza will have little fortune. 
 She will have a share of what I leave after the death of her 
 mother " ; it was held that there was no contract, or, at any rate, 
 no contract to leave a share equal to that of his other children, or 
 any other definite sum (e). Bepresentations de futuro require to be 
 
 (z) Exp. Pye (1811), 18 Ves. 140. (b) Re Stewart, Stewart v. 
 
 See Ellison v. Ellison (1802), SVes. McLaughlin (1908), 77 L. J. Ch. 
 
 656 ; post, p. 168 ; Kekewich v. 525 ; [1908] 2 Ch. 251 ; Re Innes, 
 
 Manning (1S51), 21 L. J. Oh. 577 ; Innes v. Innes (1909), 79 L. J. Ch. 
 
 1 De G. M. &G. 176; Cochrane v. 174 ; [1910] 1 Ch. 188. 
 
 Moore (1890), 59 L. J. Q. B. 377; {c) Jorden v. Monet/ (1854), 23 
 
 25 Q. B. D. 57. L. J. Ch. 865 ; 5H.L. C. 185. 
 
 (a) Price y. Price (1851), 21 L.J. (d) Mellish, L.J., Beattie v. 
 
 Ch. 53 ; 14 Beav. 598 ; affd. on Ebury (Lord) (1872), 41 L. J. Ch. 
 
 another ground (1852), IDeG.M. 804; L. R. 7 Ch. 777; Selborne, 
 
 & G-. 308 ; Jones v. Loch (1865), 35 L.C., Maddison v. Alderson (1883), 
 
 L. J. Ch. 117; L. E. 1 Ch. 25; 52 L. J. Q. B. 737; 8 App. Cas. 
 
 Richards v. JJelbridge (1874), 43 473. 
 
 L. J. Ch. 459; L. E. 18 Eq. 11; (e) Re Fickus, Farina v. Fickui 
 
 Mearileyy. Nicholson (lit 5), H\,. J. (1899), 69 L. J. Ch. 161 ; [1900] I 
 
 Ch. 277 ; L. R. 19 Eq. 233. Ch. 331. 
 
80 
 
 LEADING GASES IN EQUITY. 
 
 Undue 
 influence. 
 
 Death duties. 
 
 distinguished into representations of existing facts and representa- 
 tions of intentions. The student should bear in mind that there is 
 no magic in words, and that words expressing an intention only, 
 may be binding as a promise if so intended, as was held in a case 
 where it was stated in writing that the father " also intends to 
 leave a further sum of 10,0002. " to the intended wife(/). Repre- 
 sentations de futuro which are neither binding as contracts nor 
 fraudulent are inoperative (g). 
 
 Gifts made to persons who are in a position to exercise undue 
 influence over the donor may be recalled, unless after the power of 
 exercising that influence has ceased the donor confirms the gift or 
 omits to enforce this right (A). 
 
 Gifts made within three years before the donor's death are liable 
 to death duties as property passing on his death (i). 
 
 [32] 
 
 Gift con- 
 ditional on 
 death. 
 
 Effect of 
 Wills Act. 
 
 DUFFIELD v. ELWES. (1827) 
 [1 Bli. N. S. 497 ; S.O. nom. Duffield v. Hicks, 1 Dow & 01. 1.] 
 
 In this case title deeds to lands and a bond and judg- 
 ment were handed over to the donee by a person in ex- 
 tremis under circumstances which imported an expression 
 of desire to confer a bounty. This was held to be an effec- 
 tive donatio mortis causa of the property in the deeds 
 and of the money secured by them. 
 
 As the words import, the gift must be made in contemplation of 
 an immediate death (k), and is conditional upon the death of the- 
 donor, whether the condition attached in express terms or is to be 
 inferred from the circumstances (I). 
 
 At the time when the principal case was decided, holograph wills 
 had been abolished by the Statute of Frauds. It had been held 
 
 (f) Uammersley v . De Biel (1845) , 
 12 01. & F. 45. 
 
 (g) Maunsell v. Sedges (1854), 4 
 H. L. C. 1039; Alderson v. Mad- 
 disor, (1883), 52 L. J. Q. B. 737 ; 8 
 App. Cas. 473. 
 
 (A) Hnguenm v. Baseley (1807), 
 7 Ves. 273 ; ante, p. 64. 
 
 (i) Customs and Inland Revenue 
 
 Act, 1881, s. 38, suo-s. (2) (a) ; 
 Finance (1909-10) Act, 1910, s. 59 f 
 Bub-ss. (1), (2). 
 
 (k) Blount v. Burrow (1792), 1 
 Ves. Jr. 546; TateY. Silbert (1793), 
 2 Ves. Jr. 111. See Walter v. 
 Bodge (1818), 2 Swanst. 92. 
 
 (') ' 
 Mad 
 
 (I) Gardner v. Barker (1818), 3, 
 add. 184. 
 
GIFT. 81 
 
 that this statute did not abolish gifts mortis causd (m), and a similar 
 decision was come to as to the Wills Act, 1837 (n). 
 
 There are three essentials to the validity of a donatio mortis Essentials of 
 causa. First, apt words of gift (o). In the second place, delivery ( p), valid <fo»oWo 
 or what is tantamount to delivery (q) ; and the delivery need not be 
 contemporaneous with the gift (r). 
 
 The third essential is a proper subject-matter. The Courts have Subject- 
 taken a more enlarged view of what may be given which extends matter - 
 not only to things capable of delivery, but to other items of 
 property. In the principal case, mortgage deeds and a bond 
 were held proper subject-matters. A policy of insurance and 
 a banker's deposit note are good subject-matters (s), as are a 
 promissory note, bill, or cheque of a third party payable to the 
 donor (<). But a cheque drawn by the donor («) is not sufficient, 
 unless it has been negotiated for value, or the proceeds received in 
 the lifetime of the donor (x). The promissory note of the donor 
 has been held to be insufficient (?/), subject, perhaps, to a similar 
 condition validating it as a gift, if negotiated. 
 
 "Where the gift does not clothe the doneo with the complete legal Right to 
 
 title, he is, as appears from the principal case, and many other oom P e l 
 
 authorities, to call upon the real or personal representatives to ^ con fi rm . 
 
 confirm his title (z). 
 
 Conditions may be attached to a gift mortis causa, as a trust in Conditions 
 » j, j_i • t / \ attached to 
 
 favour of a third person [a). ,^ t 
 
 A donatio mortis causa may be revoked by the donor resuming Revocation 
 possession (&). 
 
 Donationes mortis causa, form part of the donor's estate for the Death duties, 
 purpose of death duties (c). 
 
 (m) Drury v. Smith (1717), 1 (0 Clement v. Chcesman (1884), 
 
 P. Wins. 404. 54 L. J. Oh. 158 ; 27 Ch. D. 631. 
 
 (n) Moore v. Barton (1851), 20 («) Re Beaumont, Beaumont v. 
 
 L. J. Ch. 626 ; 4 De O. & Sni. 517. Ewbank (1902), 71 L. J. Ch. 478 ; 
 
 (o) Edwards v. Jones (1336), 5 [1902] 1 Ch. 889. 
 
 L. J. Ch. 194; 1 M. & Cr. 266; (x) Mutts v. Ellis (1853), 4 DeG. 
 
 Cosnahan v. Grice (1862), 15 Moo. M. & G. 249 ; Molls v. Pearee (1877), 
 
 P. C. 215. 46 L. J. Ch. 791 ; 5 Ch. D. 730. 
 
 (p) Bunn v. Markham (1816), 7 (y) Tate v. Hilbert (1793), 2 Ves. 
 
 Taunt. 224; He Taylor, Taylor v. Jr. 111. 
 
 Taylor (1887), 56 L. J. Ch. 597. (z) Re Billon, Buffin v. Duffin 
 
 (?) Farqnhar»on v. Cave (1846), (1890), 59 L. J. Ch. 420 ; 44 
 
 15 L. J. Ch. 137; 2 Coll. 356; Ch. D. 76. 
 
 Mustapha v. Wedlake, [1891] W.N. (a) Bills v. Bills (1841), 10 L. J. 
 
 201. Ch. 440; 8 M. & W. 401. 
 
 (r) Cainv. Moon (1896), 65 L. J. (b) Jones v. Selby (1710), Prec. 
 
 Q. B. 587 ; [1896] 2 Q. B. 283. Ch. 304 ; Bunn v. Markham (1816), 
 
 (s) J mis v. Witt (1863). 33 Beav. 7 Taunt. 224. 
 
 619; Re Billon, Bvffin v. Bvffln (e) Customs and Inland Revenue 
 
 (1890), 59 L. J. Ch. 420 ; 44 Ch. D. Act, 1881, e. 38, sub-s. (2; a. 
 76. 
 
 R. G 
 
82 LEADING CASES IN EQUITY. 
 
 Infant. 
 
 [33] — •— 
 
 EYRE v. SHAFTESBURY (COUNTESS). (1722) 
 [2 P. Wms. 103 ; 1 Wh. & T. L. C. 495.] 
 
 The father of the infant appointed Lord Chief Baron 
 Eyre (then Mr. Justice Eyre) and two 1 other persons 
 testamentary guardians of his son until he should attain 
 twenty-one, but without making any specific provision, 
 aa to the eurvivorshipi. Lord Macclesfield, C, held, and 
 his decision was afterwards confirmed by Lords Commis- 
 sioners Jekyll, M.R., Gibbert, B., and B&ymond, J., 
 that the office of guardian survived; and it appearing 
 that the infant Earl of Shaftesbury had recently married 
 without the consent of the testamentary guardian, ordered 
 a sequestration to issue against the Countess of Shaftes- 
 bury and the Countess of Gainsborough, unless cause were 
 shown against the order, for their contempt in contriving 
 and effecting this marriage without the consent of the 
 guardian, and without applying to the Court. 
 
 The student should bear in mind that there are three distinct 
 parental rights: (1) Guardianship ; (2) Custody; and (3) Access. 
 The question of wardship by the Court of Chancery forms a fourth 
 branch of the law, as will appear in the notes. 
 Guardianship. At the common law the father was during his life the guardian 
 of his eldest son, and subsequently of his other children, until they 
 attained the age of fourteen, after which age the child was free to 
 choose its own guardian [d). By the statute 4 & 5 Ph. & M. c. 8, 
 the authority of the parent as guardian of his female children was 
 extended until the infant attained sixteen. The statute which 
 abolished feudal tenures authorised the father by deed or will to 
 appoint a guardian. This is the statute 12 Car. 2, c. 24, referred 
 to in the principal case. If the father did not exercise his statutory 
 right to appoint a guardian, the mother (if she survived the father) 
 remained, as was the case at the common law, the guardian of the 
 
 (d) Co. Litt. 88 b, Hargrave's notes 11 and 12. 
 
INFANT. 83 
 
 children (e). By the Guardianship of Infants Act, 1886 (49 & 50 
 Vict. c. 27), the mother was for the first time invested with power 
 "to appoint provisionally a guardian for her infant children surviving 
 her to act jointly with the father, and "if it be shown to the 
 satisfaction of the Court that the father is for any reason unfitted 
 to be the sole guardian of his children," the appointment may be 
 confirmed. The statute also confirms the common law right of the 
 mother, upon surviving her husband, to be guardian of infant 
 children. But if the father has exercised his right under 12 Oar. 2, 
 c. 24, to appoint a guardian, the mother is to act jointly with the 
 guardian so appointed. There is also power under the Act to 
 remove a testamentary guardian, or a guardian appointed under 
 the Act (/). Where a mother changed the faith previously 
 professed by her, which was that of the father, another person was 
 appointed guardian of the infant child to act jointly with the 
 mother, and to have the custody of the child, the mother being 
 permitted access to the child (g). 
 
 The appointment of a guardian by the Court is a judicial act, and Reference as 
 the Court will generally refer the matter to chambers for report to fat ° e 8S °* 
 upon the propriety of appointing the person proposed (A); but 
 where a testamentary guardian has been appointed, no reference 
 will be directed (i). If there is no property to be administered by 
 the guardian (/<;), the Court will appoint a guardian without a 
 reference (I). 
 
 It is one thing to deprive a person of the custody of a child, and Custody, 
 another to determine who of two or more adverse claimants is 
 entitled to that custody (m). At the common law, if the child were 
 legitimate, the father was entitled to the custody, even in the case 
 of an infant at breast (n) ; but the Court of Chancery, in the exer- 
 cise of its paternal j urisdtction, treated the interest of the child as 
 of paramount importance, subject to this, that the common law 
 right of the father was no further interfered with than was neces- 
 
 (e) Reg. v. Clark (18">7), 26 L. J. (») Miller v. Harris (1845), 14 
 
 Q. B 169 ; 7 Ed. & Bl. 186. See Sim. 540. Cp. Chatteris v. Young 
 
 Exp. Glover (1835), 1 Harr. & (1819), Uac. & W. 106. 
 
 W. 508. (lc) As to this point, see Slee- 
 
 (./') The power to remove a man v. Wilson (1871), L. E. 13 
 
 testamentary guardian is new : Eq. 36. 
 
 Ingham v Bickerdike (1822), 6 (l) Re Woolseomie (1816), 1 Madd. 
 
 Maid. 275. 213 ; Re Neale (1852), 15 Beav. 
 
 (g) Re Cole (1900), 16 T. L. R. 250. 
 
 500. (m) Reg. v. Ggnqall (1893), 62 
 
 (h) Coham v. Co ham (1843), 13 L. J. Q. B. 559; [1893] 2 Q. B. 
 
 Sim. 6i>. Cp. Re Ke,/c's Settle- 232. 
 
 merit U904), 73 L. J. Ch. 262; (») Rex v. De Manneville (1804), 
 
 [1904] 2 Ch. 22. 5 Eat, 221; Rex v. Greenhill 
 
 (1836), 4 A. & E. 624. 
 
 g2 
 
84: LEADING OASES IN EQUITY. 
 
 eary for the benefit of the child (o). In the case of an illegitimate 
 child, the mother was entitled at common law to have the custody 
 of the child, or to direct in whose custody the child should remain, 
 and so long as the welfare of the child was not imperilled, this 
 rule also obtained in Chancery {p). In exercising its jurisdiction 
 respecting the custody of infants, it is not essential that the infant 
 should be possessed of property ; that is only necessary where a 
 scheme for the maintenance of the infant is required (17). Agree- 
 ments by the father of a legitimate child (r), or by the mother of 
 an illegitimate child (s), purporting to deprive themselves of their 
 right to the custody or control of their children, were invalid. By 
 the Custody of Infants Act, 1873, s. 2, an agreement in a separation 
 deed providing that the mother shall have the custody of the 
 children, is not per se invalid ; but the Court must refuse to enforce 
 the agreement if of opinion that it will not be for the benefit of the 
 infant to give effect thereto (t). By the Custody of Children Act, 
 1891, s. 3, the custody of a child may be given to a, person other 
 than the parent, where the parent has abandoned or deserted his 
 child, or has been otherwise unmindful of parental duties ; and. 
 by Beet. 21 of the Children Act, 1908, provision is made for the 
 custody of the child of a person guilty of cruelty. 
 Aooess. The Court may permit the mother of a child to have access to it, 
 
 even where she has been deprived of the custody ; this question 
 depends upon the consideration of all the facts of the case, and no. 
 definite rule can be laid down as to any determining factor («). 
 This jurisdiction as to access is confirmed by the Guardianship of 
 Infants Act, 1886, s. 5, which makes the welfare of the infant the 
 prime matter of importance, and enlarges the jurisdiction of the 
 Court by enabling it to make an order regarding the right of access- 
 of either parent. 
 
 (0) DeManneville-v. DeManneville (r) Vansittartv. Yamittart[\S5S)^ 
 
 (1804),10VeB. 52; where the Court 27 L.J. Ch. 289; 2 Be G. t J. 
 
 of Chancery gave the relief refused 249. 
 
 in Sex v. I)e ManntvWe, cited in (5) Humphry v. Polak (1901), 70- 
 
 the preceding note ; Welleslei/ v. L. J. K. B. 752 ; [1901] 2 K. B. 
 
 Welleslei/ (1828), 2 Bli. N. S. 124 ; 385. 
 
 Smartv. Smart ( 1 892), GIL. J. P. C. (t) Besant v. Wood (1879), 48 
 
 88; [1892] A. C. 425. L. J. Ch. 497; 12 Ch. D. 605; 
 
 (p) Sex v. Soper (1793), 5 T. R. Hart v. Hart (1881), 50 L. J. Ch. 
 
 278 ; Sex v. Hopkins (1806), 7 East, 697 ; 18 Ch. D. 670. 
 
 (579 ; Sea. v. Nash (1883), 52 L. J. (u) Blake v. Leigh (1756), Amhl. 
 
 Ci. B 442; 10 Q B. D. 454. See 306 ; Se Agar Ellis, Agar Ellis v. 
 
 Se Llot/d (1841), 3 Man. & Gr. 547. LaseelUs (1883), 53 L. J. Ch. 10 ; 
 
 (</) Se &*»«(1847), 16 L. J. Ch. 24 Ch. D. 317; Seg. v. Gyngall 
 
 309; 2 Phill. 247; Re MtGrath (1893), 62 L. J. Q. B. 559 ; [1893] 
 
 (1893), 62 L. J. Ch. 208; [1893] 2 Q. B. 232; Se Cole (1900), 1ft 
 
 1 Ch. 143. T. L. E. 600. 
 
INFANT. 85 
 
 A legitimate child must be brought up in the religion of the Religion, 
 father, unless he has done something to forfeit this right (x). And 
 ■where some children have been brought up in a religion different 
 to that of the father for such a. period of time as to make it 
 undesirable to change their religious instruction, it has been 
 considered a material, although not a conclusive, circumstance to be 
 considered in determining whether the religious education of the 
 other children should not be continued in the same course, and not 
 be changed to that of the father (y). And where a father changes 
 his faith, he may direct that his infant children shall also be 
 brought up in that faith, unless detrimental to the interests of the 
 infants, even where he has forfeited his right to be a guardian, or 
 to nominate a guardian (z) ; but a change of religion on the part of 
 a testamentary guardian from that of the father of the child is a 
 sufficient circumstance for his removal from that office (a). It is 
 essential that some religious instruction, presumptively in the faith 
 preferred by the father, should be given (6). The Guardianship of 
 Infants Act, 1886, has made no alteration in the rule (c), and the 
 Custody of Infants Act, 1891, s. 4, expressly preserves the parental 
 power to direct the course of religious instruction of the child 
 even where the Court is now empowered to refuse the parent the 
 custody of the child. 
 
 The law relating to wards of Court is sometimes to be sought "Ward of 
 rather amongst the records of the Court, many extracts from which Court, 
 are to be found in Seton on Decrees, than in the reports of decided 
 ■cases ; for cases relating to infants are frequently heard in chambers, 
 where the proceedings are secret, or, if for convenience heard in 
 Court, the public are excluded, and can only be published by special 
 permission of the Court (d). The jurisdiction of the Chancellor 
 •over infants is an original jurisdiction and in this respect differs 
 from the jurisdiction over lunatics which is a delegated authority (e) ; 
 
 (x) Talbot v. Shrewsbury (Sari) Jao. 245. 
 
 <1840), 9 L. J. (N. S.) Ch. 125 ; (a) Re Sunt (1843), 2 Conn. & 
 
 4 M. & Cr. 672 ; Re Agar Ellis, L. 373 ; F. v. F. (1902), 71 L. J. 
 
 Agar Ellis v. Lascclles (1878), 48 Ch. 415 ; [1902J 1 Ch. 688. 
 
 1. J. Ch. 1 ; 10 Ch. D. 49 ; Re (b) Thomas v. Roberts (1850), 19 
 
 Clarke (1882), 51 L. J. Ch. 740; L. J. Ch. 506; 3 De G. & Sm. 
 
 21 Ch. D. 817 ; Re Kevin (1891), 758 ; Re Besant (187a), 48 L. J. 
 
 60 L. J. Ch. 542; [1891] 2 Ch. Ch. 497 ; 11 Ch. D. 508. 
 
 542. (e) Re Seanlan (1888), 57 L. J. 
 
 (y) Re Newton (1896), 65 L. J. Ch. 718 ; 40 Ch. D. 200. 
 
 Ch. 641; [1896] 1 Ch. 740; Re (d) Re Martindale (1894), 64 L. J. 
 
 Cole (1900), 16 T. L. R. 600; Re Ch. 9; [1894] 3 Ch. 193. See F. 
 
 W., W. v. M. (1907), 77 L. J. Ch. v. F. (1902), 71 L. J. Ch. 415 ; 
 
 147; [1907] 2 Ch. 557. [1902] 1 Ch. 688. 
 
 (s) Make v. Leigh (1756), Amb. (e) Oxenden v. Compton (Lord) 
 
 506; Lyons v. Blmkin (1821), (1793), 2 Ves. Jr. 69 ; Exp. Phillips 
 
86 
 
 LEADING OASES IN EQUITY. 
 
 How 
 constituted. 
 
 Removal out 
 of jurisdic- 
 tion. 
 
 and where an infant ward becomes of unsound mind the original 
 jurisdiction of the Court is not displaced, but directions may be 
 given as to his treatment as the Court may think best for his 
 benefit (/). 
 
 An infant becomes a ward of Court if proceedings are instituted 
 on his behalf (g); or if an application be made to the Court 
 respecting property to which the infant is entitled, although his 
 interest be only contingent (h) ; or if the infant be interested in 
 money paid into Court in administration proceedings to which the 
 infant is a party («'), or in Court under the Trustee Act, 1893 (k); 
 but not where the money has been paid into Court under statutory 
 provisions framed merely for the safeguarding of money until the 
 infant comes of age {I); so proceedings under the Infants Settle- 
 ment Act, 1855, do not constitute the infant, the settlement of 
 whose property is approved of, a ward of Court (m). An order 
 constituting a guardian of an infant makes the infant a ward of 
 Court (m). 
 
 It is a contempt of Court to remove an infant ward of Court out 
 of the jurisdiction without the leave of the Court (o). Leave to 
 take an infant ward of Court out of the jurisdiction will only be 
 granted under exceptional circumstances, as where it is essential 
 for the health of the infant (p), or for educational purposes (q), or 
 to enable the infant to reside with its father (r), mother (s), or near 
 relations ((). Any order granting leave to remove the ward should 
 contain some provision enabling the Court to make effective orders 
 respecting the infant, and for the return of the infant within the 
 
 (1812), 19 Ves. 118; Sherwood v. 
 Sanderson (1815), 19 Ve= 280. See 
 ante. p. 7. 
 
 (/) Re Edwards (1.879), 48 L. J. 
 Ch. 233 ; 10 Ch. D. 605. 
 
 (g) Butler v. Freeman (1756), 
 Ambler, 301 ; Pendleton v. Mackrory 
 (1790), Dick. 736 ; Gynn v. Gil- 
 bard (1860), 1 Dr. & Sm. 356. 
 
 (k) Russell v. Nicholls (1846), 16 
 D. J. Ch. 47 ; Dawson v. Thompson 
 (1865), 12 L. T. 178 ; Re Graham 
 (1870), 39 L. J. Ch. 724 ; L. R. 10 
 Eq. 530. 
 
 (i) Sec Brown v. Collins (1883), 
 53 L. J. Ch. 368 ; 25 Ch. D. 66. 
 
 (ft) Re Hodges (1857), 3 K. & J. 
 213 
 
 (l) Re Hillary (1865), 2 Dr. & 
 Sm. 461 ; Exp. Brewer (1865), 2 
 Dr. & Sm. 652. 
 
 (m) Re Dalton (1856), 25 L. J. 
 Ch. 751 ; 6 De G. M. & G. 201. 
 
 (n) Stuart v. Bute (Marq.) (1861), 
 9 H. L. C. 440. See Brown v. 
 Collins (1883), 63 L. J. Ch. 368; 
 25 Ch. D. 56. 
 
 (o) Rochford v. Haehnan (1854), 
 23 L. J. Ch. 261 ; Kay, 308. 
 
 (p) Campbell v. Mackay (1837), 
 2M. &Cr. 31. 
 
 (?) Lethem v. Hall (1834), 7 Sim. 
 141. 
 
 (r) Jackson v. Hankey (1821), 
 Jac. 264; Re Thomas (1853), 22 
 L. J. Ch. 1075 ; Re Plomley, Vidler 
 v. Collyer (1882), 47 L. T. 283. 
 
 (s) Re Callaghan, Elliott v. Lam- 
 bert (1884), 64 L.J. Ch. 292; 28 
 Ch. D. 186. 
 
 (*) Clogstoun v. Waleoit (1845), !>• 
 Jur. 649. 
 
INFANT. 87 
 
 jurisdiction («). The Court exercises a summary jurisdiction for 
 the purpose of ascertaining the place of concealment of wards, and 
 ■will not admit a plea of professional privilege to be raised in order 
 to attain thi3 end (x). 
 
 It is a contempt to marry a ward of Court without leave, sub- Marriage of 
 jecting the parties (y), or those aiding and abetting them(z), to ward, 
 punishment for their contempt. As appears from the cases cited 
 in note (y) the Court requires a settlement of the ward's property, 
 and where there has been an infraction of the Marriage Act, will 
 exclude the husband from all possibility of benefit in the wife's 
 property (a). There is no jurisdiction to compel the ward to 
 execute a settlement of hi3 or her property (b). 
 
 BECKFORD v. TOBIN. (1749) [34] 
 
 [1 Ves. Sen. 308.] 
 
 The .testator by his will gave £4,000 to trustees to be 
 paid and applied according to his appointment. By a 
 codicil he directed the trustees to apply the £4,000 to the 
 uses of an infant who resided with him, the infant's main- 
 tenance and education to be paid out of the interest of 
 that £4,000. Lord Hardwicke, L.C., in the course of his 
 judgment, said: " I am of opinion that in this particular 
 case there ought to be interest from the death of the testa- 
 tor, and not only from the end of one year after. The 
 rule is, true, that the interest of a general legacy, for 
 which no time is appointed, is from the end of one year; 
 which is strengthened by the Statute of Distribution 
 
 (u) Campbell v. Hackay (1837), (z) Eyre v. Shaftesbury (Countess), 
 
 2 M. & Cr. 31; Me Cattayhan, 2 P. Wms. 112, the principal case ; 
 
 Elliott v. Lambert (1884), 54 L. J. More t. More (1741), 2 Atk. 167; 
 
 Ch. 292; 28 Ch. D. 188. Priestley v. Lamb (1801), 6 Ves. 
 
 (x) llamshotham v . Senior (1873), 421. 
 
 L. It. 8 Eq. 575 ; Rosenberg v. (a) Att.-Gen. v. Lucas (1848), 18 
 
 Undo (1883), 48 L. T. 478. L. J. Ch. lui) ; 2 Ph. 753. 
 
 (y) Balharst v. Murray (1802), 8 (b) Se Leigh, Leigh V. Leigh 
 
 Vea. 74 ; Field v. Brown (1853), 17 (1888), 58 L. J. Ch. 306 ; 40 
 
 Beav. 146 : Cox v. Bennett (1874), Ch. D. 290. 
 31 h. T. 83; 22 W. F*. 819. 
 
88 
 
 LEADING CASES IN EQUITY. 
 
 Rule one of 
 convenience. 
 
 Exceptions : 
 — legacies 
 payable out 
 of realty. 
 
 Testator 
 parent, or in 
 loco parentis. 
 
 giving one year in the case of intestacy to distribute; the 
 same reason holding where there is a will and executors; 
 yet that rule was not founded upon that statute, being a 
 rule of this Court before, who took it from the Ecclesi- 
 astical Court, which gave the executor a year to get in 
 the estate, and pay the legacy, before he should be com- 
 pelled to give an account, &c. And as this Court has a 
 concurrent jurisdiction in the case of legacies, it has 
 followed that rule, that there might be no variance in the 
 rule of justice, and allowed that time of a year, where 
 no certain time was mentioned." 
 
 " "Wherever legacies are given out of personal estate, consisting 
 of outstanding securities, those legacies cannot be actually paid, 
 until the money due upon such securities is actually got in ; but 
 by a rule, that has been adopted for the sake of general con- 
 venience, this Court holds the personal estate to be reduced into 
 possession, within a year after the death of the testator. Upon 
 that ground interest is payable upon legacies from that time, unless 
 some other period is fixed by the will. Actual payment may in 
 many instances be impracticable within that time ; yet in legal 
 contemplation the right to payment exists, and carries with it the 
 right to interest until actual payment " (c). 
 
 Where a legacy is payable primarily or exclusively out of realty, 
 interest is payable from the death of the testator (d). The founda- 
 tion of this exception is that the jurisdiction of the Ecclesiastical 
 Courts (which has been transferred to the Probate Division of the 
 High Court) was strictly limited to personalty. 
 
 Where the testator is a parent, or has placed himself in loco 
 parentis, interest will be payable from the death (c) ; provided the 
 legatee be an infant (/). And a testator may be held to have 
 placed himself in loco parentis upon evidence of having made pro- 
 
 (c) Grant, H.R., Wood v. Pen- 
 oyre (1807), 13 Ves. 325 ; Greening 
 v. Barber, cited 1 Sch. & L. at 
 p. 12 ; Re Walford, Kenyan v. 
 
 Walford (1911), 81 L. J. Oh. 128; 
 [1912] 1 Oh. 219. Cp. Parry v. 
 Warrington (1820), 6 Madd. 165. 
 
 (d) Spurway v. Glynn (1804), 9 
 Ves. 483; Pearson v. Pearson (1802), 
 1 Sch. & L. 10 ; lie Waters, Waters 
 v. Boxer (1889), 58 L. J. Ch. 750 ; 
 
 42 Ch. D. 517. 
 
 (e) Wilson v. Maddison (1843), 12 
 L. J. Ch. 420; 2 Y. & C. Ch. 
 372. See lie Bowlby, Bowlby v. 
 Bowlby (1904), 73 L. J. Ch. 810 ; 
 [1904] 2 Ch. 685. 
 
 (/) Wall v. Wall (1847), 16 
 L. J. Ch. 305 ; 15 Sim. 513 ; 
 lie Crane, Adams v. Crane (1907), 
 77 L. J. Ch. 212 ; [1908] 1 Ch. 
 379. 
 
INFANT. 89 
 
 -vision for the infant in Lis lifetime (g). A gift by a parent to Ms 
 infant child carries interest from the death by way of maintenance, 
 notwithstanding adult children are joined with the infants in a 
 several gift (ft). 
 
 A testator who does not stand in loco parentis may indicate, not Upon the 
 only in express terms, but by implication, that interest shall be term s of the 
 paid as from his death, as by a gift for the maintenance or support ° 
 of infants (i) ; or a discretionary power for trustees to apply income 
 in the maintenance and education of infants (k) ; or a similar power 
 to apply a contingent legacy, or the income thereof for the main- 
 tenance, education or benefit of an infant (I) ; or to apply a con- 
 tingent share " in or towards the advancement in life, or otherwise 
 for the benefit," of a beneficiary (ra). 
 
 A gift of a pecuniary legacy followed by a direction postponing Legacy 
 its payment confers a vested interest (n). Where a legacy is given payable at a 
 in these terms there is no right to interest until the day of payment 
 arrives, unless the infant be a child of the testator or person to 
 whom the testator has placed himself in loco parentis ; or the gift 
 be one of residue ; or there be other special circumstances (o). 
 
 A will sometimes contains an express provision for maintenance. Provisions for 
 Where there is a contingent gift of capital to an individual, with a maintenance 
 trust to apply the whole or such part of the income as the trustees a p S t;J^ 
 think fit towards his maintenance, or for his advancement, prefer- 
 ment, or benefit, this is treated as a gift of the component parts, 
 and confers an immediate vested gift (p) ; but if the beneficiary is 
 entitled to the income for maintenance, on the ground that the 
 testator was his father, or stood in loco parentis, the gift will remain 
 contingent (3). A gift to a class on attaining a particular age, 
 coupled with a direction to apply the whole or such part of the 
 income as the trustees think fit, will be vested if each member of 
 
 {0) Sogers v. Soutten (1838), 7 11 L. J. Ch. 49 ; 1 Hare, 10. See 
 
 L. J. Ch. 1!8; 2 Keen, 598. Blease v. Burgh (1840), 9 L. J. 
 
 (A) Be Moody, Woodrofev. Moody (N. S.) Ch. 226 ; 2 Beav. 221.. 
 
 (1894), 64 L. J. Ch. 174 ; [1895] (0) Mole v. Mole (1758), 1 Dick. 
 
 1 Ch. 101. 310; Tamil y. Tyrrell (17!?8), 4 
 
 (i) Leslie v. Leslie (1835), LI. & Ves. 1 ; ' Thomas v. Att.-Gen. (1837), 
 
 G. t. Sugd. 1. 2 T. & C. Ex. 525. 
 
 (A) Rill v. Rill (1814), 3 Ves. & (p) Green v. Bigot (1781), 1 Bro. 
 
 B. 183. C. C. 103 : Be Hart's Trusts (1858), 
 
 (Z) Be Bichards (1869), L. E. 8 28 L. J. Ch. 7 ; 3 De G. & J. 195 ; 
 
 Eq. 119. Be Williams, Williams v. Williams 
 
 (m) Be Churchill, Riseock v. (1906), 76 L. J. Ch. 41 ; [1907] 1 
 
 Lodder (1909), 79 L. J. Ch. 10; Ch. 180. 
 
 [1909] 2 Ch. 431. (q) Be Bowlby, Bowlby v. Bowlby 
 
 (n) Hanson v. Graham (1801), 6 (1904), 73 L. J. Oh. 810; [1904] 
 
 Ves. 239 ; Lister v. Bradley (1841), 2 Ch. 685. 
 
90 
 
 LEADING CASES IN EQUITY. 
 
 Amount of 
 maintenance. 
 
 Discretionary 
 powers of 
 maintenance. 
 
 Statutory 
 power. 
 
 the class can take his share of capital as he attains that age (r), 
 but will be contingent if each member of the class is not so 
 entitled (s). Where a fixed sum is given for maintenance, a legacy 
 contingent upon the legatee attaining a given age does not vest 
 until he attains that age (t) ; and the same result follows if main- 
 tenance is directed out of another fund (u). 
 
 Where a testator has fixed a sum as proper to be allowed for 
 maintenance the Court will permit the amount so fixed to be 
 exceeded if there are no words which negative any such right. 
 Also, where an infant is entitled to maintenance out of more than 
 one fund, that fund shall first be resorted to which is the more 
 advantageous to the infant. This and some other questions arising 
 upon the maintenance of infants are discussed elsewhere (a;). 
 
 The Court will not interfere with a bona fide exercise by trustees 
 of a discretionary power of maintenance whether they exercise the 
 power by allowing (y) or refusing (z) it. 
 
 Trustees are now empowered by sect. 43 of the Conveyancing 
 and Law of Property Act, 1881 (44 & 45 Vict. c. 41), to pay to the 
 parent or guardian or to apply the income of property held by them 
 in trust for an infant, either for life, or for any greater estate, and 
 whether absolutely or contingently, for or towards the infant's 
 maintenance, education or benefit, whether there is any other fund 
 applicable to the same purpose, or any person bound by law to 
 provide for the infant's maintenance or education or not. Unless 
 this section bo incorporated in the will the intermediate income of 
 a contingent gift cannot be applied to the purposes mentioned 
 therein, unless the infant is absolutely entitled to the income as an 
 accretion to his capital (a). But where the capital is given to 
 members of a class who attain twenty-one, as each has an equal 
 chance of sharing when the fund becomes divisible, maintenance 
 may be given (b). 
 
 (a) Re George (1877), 47 L. J. Ch. 
 US ; 5 Ch. D. 837. 
 
 (x) See notes to Re Whitaker 
 (1889), 68 L. J. Ch. 487 ; 42 Ch. 
 D. 119, ante, p. 6. 
 
 (v) Brophy v. Bellamy (1873), 43 
 L. J. Ch. 183 ; L. R. 8 Ch. 798. 
 
 (z) Re Bryant, Bryant v. Hickley 
 (1893), 63 L. J. Ch. 197 ; [1894] 1 
 Ch. 324. 
 
 (a) Re Dickson, Sill v. Grant 
 (1885), 54 L. J. Ch. 610; 29 Ch. 
 D. 331 ; Re Bowlby, Bowlby v. 
 Bowlby (1904), 73 L. J. Ch. 810; 
 [1904] 2 Ch. 885. 
 
 (A) Re Holford, Holford v. Eol- 
 ford (1894), 63 L. J. Ch. 637; 
 
 (r) Jones v. Mackilwain (1826), 1 
 Buss. 220 ; Fox v. Fox (1875), L. K. 
 19 Eq. 286. The latter case, and 
 the decisions upon which it is 
 founded, give greater effect to the 
 policy of our law, to favour that 
 construction which phall favour 
 vesting (see Leake, Law of Land, 
 p. 245), than does Re Wintle, Tucker 
 v. Wintle (189«), 65 L. J. Ch. 863 ; 
 [1896] 2Ch. 711. 
 
 (*) Re Parker, Barker v. Barker 
 (1880), 16 Ch. D. 44. 
 
 (t) Watson v. Hayes (1839), 9 
 L. J. Ch. 49; 6 M. & Cr. 125. 
 See Roden v. Smith (1744), Ambl. 
 588. 
 
INJUNCTION. 91 
 
 Injunction. 
 
 BRIDSON v. BENECKE. (1849) [35] 
 
 [12 Beav. 1.] 
 
 This was a suit to restrain the infringement of a patent. 
 The plaintiffs discovered the alleged infringement in 
 January, 1848, and gave notice to the defendants to desist 
 infringing in April following; but did not file their bill 
 until December 30th following. On January 15th, 1849, 
 they moved for an interlocutory injunction, but it was 
 refused on the ground of delay. The plaintiffs subse- 
 quently established their title to the patent and its in- 
 fringement by the defendants by proceedings in a common 
 law action, as was then the practice, and renewed their 
 application for an injunction, which was granted, not- 
 withstanding the defendants had excepted to the ruling 
 (according to the present practice it would be an appeal 
 upon the ground of misdirection) of the judge who had 
 tried the case at common law. 
 
 Sect. 25, sub-sect. 8, of the Judicature Act, 1873, enables all Effect of the 
 Divisions of the Court to grant an injunction "in all cases Judicature 
 in -which it shall appear to the Court to be just or convenient ' 
 that such order should be made." There was a disposition upon 
 the part of some judges to regard this sub-section as enlarging the 
 jurisdiction of the Court, but subsequent decisions have limited 
 the effect of the sub-section, of which only a part has been set out 
 above, and it is now construed as intended to remove certain 
 technical objections upon which injunctions were formerly refused, 
 but not to alter the principles upon which the Court should act, 
 or to enlarge the jurisdiction (c). 
 
 The notes to Penn v. Baltimore and Rendall v. Rendall (d) contain 
 a reference to matters also relevant to the present note. 
 
 [1894] 3 Ch. 30 ; EeJeffery, Arnold G. iV. Jty. (1883), 52 L. J. Q. B. 
 
 •v.Burt (1895), 64 L. J. Ch. 830 ; 380; 11 Q. B. D. 30; Kitta v. 
 
 [1895] 2 Ch. 577. Moore (1S94), 64 L. J. Q. B. 152 ; 
 
 (c) Fletcher v. Sobers (1878), 27 [1895] 1 Q. B. 253. 
 
 W. R. 97 ; Gaskin v. Balls (1879), [d) See ante, pp. 1, 14. 
 13 Ch. D. 324 ; N. London My. v. 
 
92 
 
 IEADING OASES IN EQUITY. 
 
 Declaratory- 
 judgment. 
 
 Injunction at 
 the hearing 
 or inter- 
 looutory. 
 
 Form of 
 order. 
 
 In some instances the Court will now give a declaratory judg- 
 ment, reserving liberty to apply for an injunction (e). 
 
 The distinction between the principles regulating the granting 
 or refusal of injunctions when applied for at the hearing, or at an 
 earlier stage of the proceedings, is well settled (/). Accordingly, 
 the refusal of an application for an interlocutory injunction is 
 immaterial in determining whether an injunction should be granted 
 at the hearing (g). It may be asserted as a general rule that where 
 the party is complaining of the breach of a legal right, and the 
 injunction is granted under the auxiliary jurisdiction of the Court, 
 mere delay is no answer to a claim for an injunction at the 
 hearing (h) ; but if it appears that the plaintiff has encouraged, by 
 his conduct, the act complained of, he may have his application for 
 an injunction refused at the hearing (i). Where the determination 
 of a point of law leaves nothing further to be determined between 
 the parties, it is not unusual for the defendant to submit to a 
 perpetual injunction upon an interlocutory application, and this is 
 as effective as an order made at the hearing (k). 
 
 However general in form the order may be, it is for the party 
 enjoined to find out how the order may be complied with(Q. 
 Formerly the order was frequently framed in a negative form, 
 forbidding the defendant from permitting the continuance of the 
 matter complained of. This form followed the basis upon which 
 the' jurisdiction of the Court rested ; but more common sense views 
 have since prevailed, and the order now directs what act shall be 
 performed by the defendant (m). But the order should be limited 
 to the particular infraction of the legal right which is complained 
 
 (e) Robertson v. Hartopp (1890), 
 59 L. J. Ch. 553 ; 43 Oh. D. 484 ; 
 Cope v. Crossinghnm (190S), 77 L. J. 
 Ch. 777 ; [1908] 2 Ch. 624. 
 
 (f) Patching v. Dubbins (1853), 
 23 L. J. Ch. 45 ; Kay, 1 ; affd. on 
 other grounds, 23 L. J. Ch. 49 ; 
 Johnson v. Wyatt (1863), 33 L. J. 
 Ch. 394 ; 2 De G. J. & d. 18. 
 
 (g) Child v. Douglai (1854), Kay, 
 560 ; 5 De G. M. & G. 739 ; at the 
 bearing (1856), 2 Jur. N. S. 950; 
 Massam v. Thorley's Cattle Food Co. 
 (1880), 14 Ch. D. 748. 
 
 (A) Imperial Gas Liqht Co. v. 
 Broadbent (1859), 29 L. J. Ch. 377 ; 
 7 H. L. Cas. 600 ; Fullwood v. 
 Fullwood (1878), 47 L. J. Ch. 459 ; 
 9 Ch. D. 176. 
 
 (i) Sayers v. Collyer (1S84), 54 
 L. J. Ch. 1 ; 28 Ch. D. 103. See 
 Att.-Gen. v. Leeds (Corp.) (1870), 
 39 L. J. Ch. 711 ; L. K. 5 Ch. 
 583. 
 
 (Ic) Morrell v. Pearson (1849), 12 
 Beav. 284. 
 
 (1) Att.-Gen. v. X. £ S. W. My.. 
 (1S4U), 3 De G. & Sm. 439 ; Elliot 
 v. N. E. Sy. (1863), 32 L. J. Ch. 
 402; 10 H. L. C. 333; Att.-Gen. 
 v. Colncy Hatch Lunatic Asylum 
 (1868), L. R. 4 Ch. 146 ; Curl Bros., 
 Ltd. v. Webster (1904;, 73 L. J. Ch. 
 540 ; [1904] 1 Ch. 685. 
 
 (»«) Jackson v. Normanby Brick 
 Co. (189U), 68 L.J. Ch. 407 ; [1899] 
 1 Ch. 438. 
 
INJUNCTION. 93 
 
 of, whether the action is an action for a breach of contract (n) or in 
 respect of a tort (o). 
 
 The Court invariably requires that the party obtaining an inter- Undertaking 
 locutory order for an injunction should give an undertaking in in damages, 
 damages, and whether the matter is mentioned in Court or not, the 
 undertaking will be inserted in the order (p). And where the 
 party moved against gives an undertaking in the terms of the 
 notice of motion, the party moving is to be deemed to give a cross 
 undertaking in damages (q). 
 
 Regularly an injunction is only granted against persons who are Injunction 
 parties to the action, unless they are workmen, servants or other a £ alDBt 
 agents of the party enjoined (r). Accordingly, an application to not parties, 
 commit a person, not a party to the action, may be intituled in the 
 matter of the contemnor as well as headed in the action (s). But 
 where a person is interfering with an officer of the Court, as a 
 receiver, an order will be made restraining him from so doing (4). 
 
 Similarly, an injunction cannot be extended so as to protect Injunction for 
 
 directly a person who is not a party to the action, but it is no ° enenfc of 
 ' r i j stranger, 
 
 objection that an order protecting parties to the action also benefits 
 
 persons who are not («). 
 
 An injunction will be limited as to the time during which it is to Injunction 
 
 remain operative, so as not to exceed the period during which the hmited as to 
 
 plaintiff is entitled to complain of an infraction of his right (x). 
 
 Conversely, where a plaintiff has an immediate right to sue, the 
 
 injunction will be so framed as to apply to new causes of complaint 
 
 if actionable (y). There are two cases of private nuisance where 
 
 the defendant abated the nuisance after action brought and had 
 
 (n) JJooper v. BrodricJc (1840), 9 (r) Norfmry (Lord) v. Alhyne 
 
 Ii. J. Ch. 321 ; 11 Sim. 47, per cur. (1838), 1 Dr. & Wal. 337 ; Sodson 
 
 Parker v. First Avenue Hotel Co. v. Cnppard (1860), 30 L. J. Ch. 20 ; 
 
 (1883), 24 Ch. D.. at p 286. 29 Beav. 4. See Att.-Oen. v. Bir- 
 
 (o) CofMitv. Coffin (1821), Jae. 70 ; minoham Drainage Board (1881), 60 
 
 British Cash and Parcels Conveyors L. J. Ch. 785 ; 17 Ch. D. 685. 
 v. Zamson Store Service Co. (1908), (s) O' Shea v. O' Shea (1890), 59 
 
 77 L J. K. B. 649 ; [1908 | 1 K. B. L. J. P. 45 ; 15 P. D. 59. 
 1006. See Saccharin Corporation v . (t) Walton v. Johnson (1848), 15 
 
 Wild (1903), 72 L. J. Ch. 270; Sim. 352. 
 [1903] 1 Ch. 410. («) Gadd v. Worral (1795), 2 
 
 (p) Teign Valley Ry. v. South- Anstr. 555 ; Const v. Harris (1824), 
 
 wood (187i), 19 W.'R. 690; Graham T. & Puss. 496; Armistead v. 
 
 v. Campbell (1878), 47 L. J. Ch. Durham (1848), 11 Beav. 556. 
 593 ; 7 Ch. D. 490. See Fenner v. (x) Simper v. Foley (1862), 2 J. 
 
 Wilson (1893), 62 L. J. Ch. 984 ; & H. 555 ; Saun'yv. London (Ont.) 
 
 [1893] 2 Ch. 656. Water Commrs. (19 6), 75 L. J. 
 
 (?) Practice note, [1904] W. N. P. C. 25 ; [1906] A. C. 110. 
 203, 208 : intended to override the (y) Rowel/ v. Satchell (1903), 73 
 
 decision in Howards. Press Printers, L. J. Ch. 20 ; [1903] 2 Ch. 212. 
 Ltd. (1904), 74 L. J. Ch. 100. 
 
94 
 
 LEADING CASES IN EQUITY. 
 
 Suspension of 
 order. 
 
 Questioning 
 validity. 
 
 judgment given in his favour, but these must be regarded as excep- 
 tional cases (z) ; the plaintiff being entitled to judgment if he has 
 a good cause of action when proceedings are commenced, although 
 the remedy will be so framed as not to be oppressive to the 
 defendant (a). 
 
 An injunction is a very severe remedy, and it is not unusual, in 
 order to prevent the order operating in an oppressive manner, to 
 make an immediate order, but to suspend its operation (b) ; and in 
 one case for so long a period as five years (c). The operation of an 
 order may be suspended as well in the case of informations at the 
 suit of the Attorney-General as in ordinary actions inter partes (d). 
 
 "It is an established rule of this Court, that it is not open to 
 any party to question the orders of this Court, or any process issued 
 under the authority of this Court, by disobedience "(e). But a 
 party in contempt may impugn the validity of the order which has 
 been made, on the ground of irregularity or illegality (/). 
 
 [36] DALGLISH v. JARVIE. (1850) 
 
 [20 L. J. Ch. 475 ; 2 Mac. & G. 231 ; 2 Hall & T. 437 ; 14 Jur. 945.] 
 
 In this case the plaintiffs sued the defendants for in- 
 fringement of a trade mark, and obtained an ex parte 
 injunction restraining the defendants from infringing. 
 The plaintiffs' affidavit in support of the application did 
 not set out facts within their knowledge which tended to 
 show that there had been such a publication prior to the 
 
 (z) Chester (Sean and Chapter) v. 
 Smelting Corporation (1901), 85 L. T. 
 67. See a better report of the 
 same case, [1901] W. N. 179. 
 See also Proctor v. Bailey (1889), 
 S9 L. J. Ch. 12; 42 Ch. t). 390. 
 
 (a) Att.-Gen. v. Birmingham, 
 Tame $ Ren Dist. Drainage Bd. 
 (1909), 79 L. J. Ch. 137; [1910] 
 1 Ch. 48. 
 
 (b) Att.-Gen. v. Colney Batch 
 Lunatic Asylum (1868), L. R. 4 
 Ch. 146. 
 
 (c) See Att.-Gen. v. Birmingham, 
 Tame $ Sea Drainage Bd. (1881), 
 50 L. J. Ch. 786 ; 17 Ch. D. 
 685. 
 
 (d) Att.-Gen. v. Colney Match 
 Lunatic Asylum (1868), L. R. 4 
 Ch. 146 ; Att.-Gen. v. Metcalf 
 (1908), 77 L. J. Ch. 261 ; [1908] 
 
 1 Ch. 327 ; Att.-Gen. v. Gibb 
 (1909), 78 L. J. Ch. 521 ; [1909] 
 
 2 Ch. 265. 
 
 (e) Lord Truro, L.C., Russell v. 
 EaU Anglian Ry. (I860), 20 L. J. 
 Ch. 257 ; 3 Mac. & G. 104. 
 
 (/) Greenv. Green (1828), 1 Coop, 
 t. Cott. 206 ; Hawkins v. Sail 
 (1839), 1 Coop. t. Cott. 210; 
 Morrison v. Morrison (1845), 1 Coop. 
 t. Cott. 212 ; Gordon v. Gordon 
 (1904), 73 L. J. P. 41 ; [1904] P. 
 163. 
 
INJUNCTION. 95 
 
 registration of the trade mark as disentitled the plaintiffs 
 from registering. Upon this ground, as well as upon 
 others, it was held that the injunction must be dissolved. 
 
 An application ex parte before appearance is regular (.9). After Ex parte 
 
 appearance the application should be upon notice, but in pressing applications, 
 cases the Court will sometimes hear ex parte applications for an 
 injunction (h). After notice, another application ex parte is 
 irregular (i). The jurisdiction is exercised very cautiously (Jc). 
 
 In very pressing cases the Court has granted an injunction before Injunction 
 
 proceedings have been actually instituted (I). before writ. 
 
 Married Woman. 
 
 HULME v. TENANT. (1778) [37] 
 
 [1 Bro. Ch. Cas. 16 ; 1 Wh. & T. L. C. 683.] 
 
 In this case a married woman entitled to property for 
 her separate use, joined her husband in a bond, which 
 was enforced against her property. 
 
 Cases relating to the separate property of married women were 
 of more importance than is now the case by reason of the passing of 
 the Married Women's Property Act, 1882, and the amending statutes 
 of 1893 and 191)7. At the present day the property of a married 
 woman may be made available to discharge her engagements 
 whether she was or was not possessed of separate property at the 
 date of the contract, and not only against property existiug at the 
 date of the contract, but against property subsequently acquired, 
 and whether the property be acquired during the continuance of 
 the marriage or subsequently (m). 
 
 As an incident to this equitable property Lord Thurlow invented Restraint 
 a restraint upon anticipation (re). This restraint withdraws the u P° n . . 
 property from the available assets of a married woman for the 
 
 (g) Bead v. Bowers (1793), 4 Bro. Ves. 617. 
 
 CO. 441. See Cooke v. (1826), (I) Tliornloe v. Stones (1873), 42 
 
 4 L. J. (0. S.) Ch. 141. L. J. Ch 7»8 ; L R. 16 Eq 126. 
 
 (A) Acraman v. Bristol Dock Co. See Proud v. Price (1893), 63 L. J. 
 
 (18 0). 1 Russ. & M. 821 and note; Q. B. 61. 
 
 Lmciham v G. N. Rg. (18l7), 16 (m) See Pike v. Fitzgibbon (1881), 
 
 L. J. Ch. 437; 1 De G. & Sm. 50 L. J. Ch. 394; 17 Ch. D. 454 ; 
 
 486. Shirley, L. C. 34; Leake, Con- 
 
 (i) Graham v. Campbell (1878), tracts, 3^6. 
 
 47 L. J Ch. 593 ; 7 <!h. D. 490. (») Slogdon v. Lee (1891), 60 L. J. 
 
 {k) Crowder v. Tinkler (1816), 19 Q. B. 6b9 ; [1891] 1 Q. B. 661 ; 
 
96 LEADING CASES IN EQUITY. 
 
 satisfaction of her creditors by the general rule of equity, which is 
 confirmed in this respect by sect. 1 of the Married Women's Property 
 Act, 1893. By sect. 2 of the same statute an order may now be 
 made for the payment out of her separate estate, notwithstanding 
 a restraint upon anticipation, of the costs of proceedings which she 
 has instituted and in which she has failed (o). The Court of 
 Chancery declared itself incompetent to remove this fetter, however 
 beneficial it might be for the married woman (p). By sect. 7 of 
 the Conveyancing Act, 1911, which replaces and extends an earlier 
 enactment, the Court may, "where it appears to the Court to be 
 for her benefit, by judgment or order, with her consent, bind her 
 interest" in any property, including any reversionary interest 
 arising under her marriage settlement, notwithstanding she is 
 restrained from anticipation (q). Upon an application under this 
 section it is not necessary to serve the trustees of the settlement (r). 
 It is now no longer necessary to limit property in express terms 
 to the separate use of a married woman in order to graft an 
 effective restraint upon anticipation (a). A restraint upon anticipa- 
 tion may be attached to real as well as to personal estate, and 
 whether the estate limited be for life or in fee(£). It is only 
 effective during the continuance of a marriage, and a restraint 
 upon anticipation cannot be attached to a limitation of property to 
 a single woman (u). During marriage the restraint ceases to attach 
 as soon as the income becomes due and payable to the married 
 woman under the trusts of the instrument under which she is 
 entitled (a;). 
 Savings of The savings of a married woman, and the investment of those 
 
 separate savings, are her separate property equally with the source from, 
 
 which they arise (y) ; and this is also the case where the property 
 
 Re Currey, Gibson v. Way (188«), (1896), 65 L.J. Ch. 837; [1896] 
 
 55 L. J. Ch. 906 ; 32 Ch D. 361 ; 2 Ch. 690. 
 
 Bateman (Lady) v. Tabor (18U7), 67 (t) Ba-ggett y. Meiix (1844), 13- 
 
 L. J. Ch. 130; [1898] 1 Ch. 144. L. J. Ch. 228; 1 Coll. 138; affd. 
 
 (o) Hood-Birrs v. Heriot (1897), (1846), 15 L. J. Ch. 262; 1 Ph. 
 
 65 L. J. Q. B. 356; [1897] A. C. 627. Sse Cooper v Macdon*ld{Wl), 
 
 174; Dreselv. .E«t»(h'U5), 74 L.J. 47 L. J. Ch. 373 ; 7 Ch. D. 288. 
 K. B. 401; [1905] 1 K. B. 574; («) Tullett v. Armstrong (1838), 
 
 Pawley v. Pawley (1905), 74 L. J. 8 L. J. Ch. 19; 1 Beav. 1; affd. 
 
 Ch. 341 ; [1905] 1 Ch. 593. (1839), 9 L. J. Ch. 41 ; 4 My. & 
 
 (p) Eohtnson v. Wheelwright Cr. 377 ; Re Wheeler's Settlement 
 
 (1856), 25 L. J. Ch. 285 ; 6 De G. Trusts, Briggs v. Ryan (1899), 68 
 
 M. & G. 635. L. J. Ch 663 ; [1899] 2 Ch. 717. 
 
 (g) See Re Pollard's Settlement (x) Hood-Barrs v. Heriot (1896), 
 
 (1896), 65 L. J. Ch. 796; [1896] 65 L. J. Q. B. 352; [1896] A. C. 
 
 2 Ch 502. 174. 
 
 (»•) Re Little (1887), 66 L. J. Ch. (y) Barrack v. McCulheh (1856), 
 
 872 ; 36 Ch. D. 701. 26 L. J. Ch. 105 ; 3 K. & J. 110 - r 
 
 (*) Exp. Hood-Barrs, Re lumley Duncan v. Cashin (1876), 44 L. J. 
 
MARRIED WOMAN. 97 
 
 is made her separate property under the Married Women's Property- 
 Act, 1882 (see sects. 2, 10). 
 
 Where the husband was compelled to invoke the assistance of Equity to a 
 a Court of Equity to obtain possession of his wife's personal settlement. 
 property, that Court compelled the husband to make a suitable 
 provision for her out of the property (z). All the circumstances of 
 the case were regarded, and where the wife was amply provided 
 for from other sources, the husband was entitled to the whole 
 fund (a). The right was personal to the wife, and her descendants 
 could only claim if she had obtained an order ordering a settle- 
 ment (b). Having regard to the construction (c) placed upon 
 sect. 19 of the Married Women's Property Act, 1882, it might 
 have been necessary to invoke the exercise of this jurisdiction, 
 but as the consent of the wife, if an adult, is now required by sect. 2 
 of the Married Women's Property Act, 1907, to any alienation of 
 her property by the husband, the law may now be ignored by the 
 student. 
 
 A similar observation applies to the power which a husband Fraud on 
 once possessed to set aside a settlement on the eve of her marriage maritalnghts. 
 by a wife of her property by which the husband was excluded 
 from all beneficial interest therein (d). 
 
 Contracts between husband and wife respecting her separate Contracts 
 property were valid (e). In the case of a loan by the wife to the between 
 husband being a trader, her claim to a dividend, in the event of an ;i wife 
 his bankruptcy, is postponed to that of creditors for value by the 
 Married Women's Property Act, 1882, s. 3. 
 
 It was not necessary to give property settled to the wife's separate Protection of 
 use to trustees, the Court would treat the husband as a trustee of wife's 
 the property, and if necessary grant an injunction to restrain him f^l^Lf. 
 from interfering with it (/). By sect. 12 of the Married Women's 
 Property Act, 1882, a wife may proceed civilly or criminally against 
 her husband and other parties in respect of her separate property, 
 but the wife is not entitled to institute criminal proceedings against 
 
 C. P. 225 ; L. R. 10 C. P. 554 
 
 Me Mackenzie, Mackenzie v. Edwards 
 Moss (1911), 80 L. J. Ch. 443 
 
 L. J. Oh. 396; 38 Ch. D. 78; 
 Stevens v. Trevor-Garrick (1893), 62 
 L. J. Ch. 660 ; [1893] i Ch. 307. 
 
 [1911] 1 Ch. 578. (d) Strathmore (Countess) v. Boioes 
 
 (a) Elibank (Lady) v. Montolieu (1789), 1 Ves. Jr. 22 ; affd. nom. 
 
 (1801), 5 Vea. 737; 1 Wh. & Bowes v. Bowes (1797), 6 Bro. P. C. 
 
 T. L. C. 650. 427 ; 1 Wh. & T. L. C. 642. 
 
 (a) Giacometti v. Frodgers (1873), (e) Scales v. Baker (1859), 28 
 L. R. 8 Ch. 338. Beav. 91 ; Woodward v. Woodward 
 
 (b) Murray v. Elibank (Lord) (1863), 3 De G. J. & S. 672. 
 (1804), 10 Ves. 84 ; 1 Wh. & (/) Green v. Green (1840), 5 Ha. 
 T. L. C. 654. 400, n. 
 
 (e) Hancock v. Hancock (1888), 57 
 
 R. H 
 
98 
 
 LEADING CASES IN EQUITY. 
 
 Gift of 
 separate 
 property to 
 husband. 
 
 Payment of 
 husband's 
 liabilities 
 with wife's 
 property. 
 
 Marital right 
 upon death 
 of wife. 
 
 her husband while they are living together ; and by sect. 17, the 
 application in civil proceedings against the husband may be made 
 in a summary way, and if necessary, heard in private (</). 
 
 There is no fiduciary relationship between husband and wife 
 raising an inference of undue influence (A). Accordingly, where a 
 married woman permits her husband to receive income or property 
 settled or held for her separate use, he may retain it («'), but in the 
 case of capital, the Court requires stronger evidence than mere 
 acquiescence to establish the gift (k). 
 
 Where a liability of the husband has been discharged out of the 
 separate property of the wife, she is entitled to be recouped the 
 amount expended, and where her estate is charged for the purpose 
 of raising the necessary moneys the husband remains presumptively 
 the principal debtor, and her estate is merely a guarantor (l). This 
 is confirmed, as regards mortgages by a tenant in tail, by the 
 Fines and Recoveries Act, 18i>3, s. 21, which requires that upon 
 redemption the property shall, so far as possible, follow the old 
 limitations unless the mortgage deed effects a re-settlement (to). 
 
 Where personal property is limited to the separate use of a 
 married woman the husband is entitled to the beneficial enjoyment 
 of that property upon her death intestate (n), and he enjoys the 
 same right in respect of her property made separate property by 
 the Married Women's Property Act, 1882 (o). A married woman 
 was always entitled to exercise a testamentary power of disposition 
 over her separate property (p), and she has an express power to do 
 so under sect. 1, sub-s. 1, of the Married Women's Property Act, 
 
 (g) Lamer v. Lamer (1905), 74 
 L. J. K. B. 797 ; [1905] 2 K. B. 
 539. 
 
 (h) Howes v. Bishop (1909), 78 
 L. J. K. B. 796 ; [1909] 2 K. B. 
 390 ; Bank of Montreal v. Stuart 
 (1910), 80 L. J. P. C. 75; [1911] 
 A. C. 120. 
 
 (i) Caton v. Hideout (1849), 1 
 Mac. & G. 599 ; Be Dixon, Heynes 
 v. Dixon (1900), 69 L. J. Ch. 609 ; 
 [1900] 2 Ch. 561. See Howard v. 
 Digby {Earl) (1834), 2 CI. & F. 
 634. 
 
 (k) Be Flamank, Wood v. Cock 
 (1890), 58 L. J. Ch.618; 40 Ch. D. 
 461. See Bowe v. Bowe (1848), 17 
 L. J. Ch. 357 ; 2 De G. & Sm. 294 ; 
 Be Dixon's Trusts, Dixon v. Dixon 
 (1879), 48 L. J. Ch. 592 ; 9 Ch. D. 
 687. 
 
 (I) Huntingdon (Earl) v. Hunting- 
 
 don (Countess) (1702), 2 Bro. P. C. 
 1 ; Jackson v. Innes (1819), 1 Bligh, 
 104 ; Whitbread v. Smith (1854), 
 23 L. J. Ch. 611 ; 3 De G. M. & 
 G. 727 ; Hall v. Hall (1911), 80 
 L. J. Ch. 340 ; [1911] 1 Ch. 487. 
 
 (m) Plomley v. Felton (1888), 58 
 L. J. P. C. 50 ; 14 App. Cas. 61. 
 
 (n) Proudley v. Fielder (1833), 2 
 M. & K. 57 ; J-Tolony v. Kennedy 
 (1839), 10 Sim. 254. 
 
 (o) Be Lambert, Stanton v. Lambert 
 (1888), 57 L. J. Ch. 927 ; 39 Ch. D. 
 626; Smart v. Tranter (1890), 59 
 L. J. Ch. 363 ; 43 Ch. D. 587 ; 
 Surman v. Wharton (1891), 60 L. J. 
 Q. B. 233 ; [1891] 1 Q. B. 491. See 
 Hope v. Hope (1892), 61 L. J. Ch. 
 441 ; [1892] 2 Ch. 336. 
 
 (p) Fettiplace v. Gorges (1789), 1 
 Ves. Jr. 46. 
 
MARRIED WOMAN. 9£ 
 
 1882 ; and by sect. 4 of the same statute it becomes available to 
 satisfy her debts and other liabilities in the same manner as if it 
 were her separate estate, and this was also the case before the 
 Act (q). 
 
 Marshalling. 
 
 ALDRICH v. COOPER. (1803) [38] 
 
 [8 Ves. 382 ; 1 "Wh. & T. L. 0. Eq. 35.] 
 
 The plaintiff Aldrich was a simple contract creditor 
 who sued, as was then the practice, on behalf of himself 
 and all other the creditors of an intestate for the adminis- 
 tration of the estate of the deceased. He obtained the 
 usual decree for an account; and the decree contained a 
 declaration that in case the creditors by specialty should 
 exhaust any part of the personal estate, the simple con- 
 tract creditors were entitled to stand in their place. It 
 appeared iby the master's report that the estate of the 
 intestate was subject toi a mortgage secured on freehold 
 and copyhold lands, and that the mortgagee had proved 
 against the personal estate in competition with the simple 
 contract creditors, who were, in the result, unable to obtain 
 payment in full of their debts. It was decided (1) that the 
 simple contract creditors were entitled to stand in the place 
 of the specialty creditors as against the freehold and copy- 
 hold lands for the amount by which the personal estate 
 had been diminished; and (2) That, prima facie, on a 
 mortgage of freehold and copyhold lands to secure the 
 same sum of money, the debt must be apportioned between 
 the two estates. 
 
 The first point decided has become of less importance by reason Marshalling 
 of the fact that lands of a deceased person are now subject to the ot assets, 
 payment of debts by the Administration of Estates Act, 1833. The 
 
 (q) Stead v. Clay (1828), 6 L. J. (0. S.) Ch. 138 ; 4 Buss. 550. 
 
 h2 
 
100 
 
 LEADING CASES IN EQUITY. 
 
 Applied on 
 
 equitable 
 
 principles. 
 
 Marshalling 
 of seourities. 
 
 eBtates of persons who, in their lifetime, had been liable to be made 
 bankrupt, had been subjected to the same liability by an earlier 
 statute, the Debts Eecovery Act, 1830. It may not be out of place 
 to warn the student that from some of the cases it would appear 
 that the specialty creditor was compelled to have recourse to the 
 land in the first instance. It would obviously have been unjust to 
 interfere with any of the creditor's remedies, and the decree in the 
 principal case states the practice correctly, namely, that the 
 person who has only one fund is subrogated to the person who has 
 two funds, to the extent by which his fund has been diminished by 
 the election of the latter. In order that the doctrine in the principal 
 case should apply, the creditor must be in a position to assert his 
 claim actively against the two funds ; if his right is to claim a set- 
 off if sued, the case is inapplicable (r). There is another principle 
 of equity, sometimes spoken of as subrogation, but only presenting 
 some points of resemblance to that doctrine. Thus, where money 
 was raised upon a security which was invalid, the lender was not 
 allowed to recover the whole amount of his advance, but so much 
 as was paid to the creditors of a railway company on whose behalf 
 the money was borrowed (3). And where an agent, without 
 authority, raised money upon the credit of his principals, the lenders 
 were allowed to recover from them so much as was disbursed by the 
 agent in payment of his principals' debts, but moneys allowed in 
 account were excluded (<). 
 
 The doctrine of marshalling of assets is an equitable right and 
 to be applied on equitable principles upon a consideration of all the 
 circumstances. Accordingly, creditors of a partnership were held 
 not entitled to call upon other creditors of the same partnership to 
 resort to the estate of a deceased partner, which right the latter 
 possessed, with a view to increase the assets of a partnership which 
 was insolvent (it). 
 
 The second point decided has been confirmed by the Court of 
 Appeal, and the doctrine rested on a broad basis. The securities 
 will be marshalled under the circumstances stated in the abstract 
 of the leading case unless it appears that one security is to be the 
 primary security, and the expression that one security is for better 
 securing the sum advanced is not sufficient to displace the general 
 rule (x). Conversely, where the circumstances raise the equity, it 
 
 (r) Webbv. Smith (1886), 55L. J. 
 Ch. 343 ; 30 Ch. D. 192. 
 
 (s) XeCorkand Youi/hal Ry.(1869), 
 39 L. J. Oh. 277 ; L. R. 4 Oh. 
 748. 
 
 (t) Bannatyne v. Mclver (1905), 
 
 75 L. J. K. B. 120 ; [1906] 1 K. B. 
 103. 
 
 («) Exp. Kendall (1811), 17 Ves. 
 614. 
 
 (x) Re AthiU, Athill v. Athill 
 (1880), 50 L. J. Ch. 123 ; 16 Ch. D. 
 
MARSHALLING. 101 
 
 is not essential to provide, in express terms, that a particular 
 property shall form the primary security. Thus, where a party 
 being seised of several estates, and also indebted by judgment, 
 settled one of the estates for a valuable consideration, with a 
 covenant against incumbrances, and subsequently acknowledged 
 other judgments, the persons entitled to the settled estates took 
 them exonerated from the prior judgments, and the creditors by 
 judgment recovered after the date of the settlement, who could 
 claim no higher title than the settlor, were held not entitled to 
 make the settled estate contribute (y). In considering this case, 
 the student must remember that a judgment creditor had not at 
 that date a specific lien on the land, and that his rights have been 
 further restricted since, by denying him any lien as against a 
 purchaser for value, unless he has registered his writ of execu- 
 tion (z). The principle of this decision was applied to a case where 
 a person was absolutely entitled in remainder expectant upon the 
 death of his mother to one moiety of certain lands, and contingently 
 upon attaining twenty-three in remainder expectant upon her 
 death to the other moiety ; he mortgaged these two interests shortly 
 after attaining twenty-one, and the next day sold his contingent 
 remainder to his mother, and in the conveyance to her covenanted 
 for further assurance ; the Court held that the interest sold to the 
 mother must be exonerated by the other moiety (a). But this 
 doctrine of marshalling is never applied where it will work 
 injustice. Thus, where a person mortgaged property No. 1 to A. 
 and the same property to B., then properties Nob. 1 and 2 to A., 
 to secure both the original and a further advance, and then both 
 the properties to C, and the two properties were not sufficient to 
 pay the three mortgages in full, but part of property No. 2 was 
 sufficient to pay A. in full ; the Court refused to marshal them as 
 between B. and C. so as to leave B. first incumbrancer on property 
 No. 1, but apportioned A.'s debt upon both properties according to 
 their respective values (6). 
 
 In the leading case the assets were marshalled in favour of j n w hose fav- 
 creditors (c). They have also been marshalled in favour of a, our assets are 
 
 marshalled. 
 
 211. See also Johnson v. Child rester (1893), 62 L. J. Ch. 996 ; 
 
 (1844), 4 Hare, 87, a case of a [1893] 2 Ch. 461. 
 
 mortgage of leaseholds and of (b) Barnes v. Racster (1842), 11 
 
 policies of assurance. L. J. Ch. 228 ; 1 T. & C. Ch. 401. 
 
 (y) Averall v. Wade (1835), Followed Mint v. Howard (1893), 62 
 
 Lloyd & G. t. Sugd. 252. L. J. Ch. 804 ; [1893] 2 Ch. 54, 
 
 (s) See Lands Charges Registra- where the facts were more com- 
 
 tion and Searches Act, 1888, ss. 4, plicated. 
 
 6, 6. (c) AUrieh v. Cooper (1803), 8 
 
 (a) Re Jones, Farrington v. For- Ves. 382. 
 
102 LEADING CASES IN EQUITY. 
 
 pecuniary legatee where there was a charge of debts, funeral and 
 testamentary expenses, and the personal estate was insufficient to 
 pay the legacy after satisfying the debts, funeral and testamentary 
 expenses, so as to throw the charge upon realty undisposed of by 
 will (d) ; but a charge of debts is essential to the evidence of this 
 right (e), and it does not apply where the realty is specifically 
 devised (/). A pecuniary legatee is entitled to throw upon land 
 specifically devised the burden of a debt to which it was subject (g). 
 
 Mergi 
 
 er. 
 
 [39] FORBES v. MOFFATT. (1811) 
 
 [18 Ves. 384; Tud. L. C. Conv. 244.] 
 
 In this case John Moffatt had a charge upon an estate 
 belonging to his brother, Aaron Moffatt. Aaron Moffatt 
 devised and bequeathed all his property, real and per- 
 sonal, to John Moffatt. It was held that although there 
 had been a merger at law, the charge was still subsisting 
 in equity. In delivering judgment, Grant, M.E., said: 
 "It is very clear that a person becoming entitled to an 
 estate, subject to a charge for his own benefit, may, if 
 he chooses, at once take the estate, and keep up the charge. 
 Upon this subject a Court of Equity is not guided by the 
 rules of law. It will sometimes hold a charge extin- 
 guished, where it would subsist at law, and sometimes 
 preserve it, where at law it would be merged. The ques- 
 tion is upon the intention, actual or presumed, of the 
 person in whom 'the interests are united . In most instances 
 it is, with reference to the party himself, of no sort of use 
 
 (d) Re Roberts, Roberts v. Roberts Strickland v. Strickland (1839), 9 
 
 (1902), 72 L. J. Oh. 38 ; [1902] 2 L. J. Ch. 60 ; 10 Sim. 374 ; Far- 
 
 Ch. 834. quharsm v. Floyer (1876), 45 L. J. 
 
 («) Keeling v. Srown (1800), 5 Ch. 750 ; 3 Ch. D. 109. 
 
 Ves. 359. (g) Re Smith, Smith v. Smith 
 
 (/) Mirehouse v. Scaife (1837), 7 (1898), 68 L. J. Ch. 333 ; [1899] 1 
 
 L. J. Ch. 22 ; 2 M. & Cr. 695 ; Ch. 365. 
 
MERGER. 103 
 
 to have la charge on his own estate; and where that is the 
 case, it will be held to sink, unless something' shall have 
 been done by him to keepi it on foot." 
 
 By force of sect. 25, sub-sect. 4, of the Judicature Act, 1873, Kffect of 
 there is not now ' ' any merger by operation of law only of any Judicature 
 estate, the beneficial interest in which would not be deemed to c ' °" 
 be merged or extinguished in equity." 
 
 Where two estates vest in one person the two coalesce, and the Merger of 
 greater sinks or merges in the lesser (h), but the two estates must estates. 
 be held in the same right (?'), and the application of the rule is 
 governed, that being the equitable rule, by the intention expressed 
 or presumed of the parties. Where there would be a merger of 
 estates if both were legal, there would be a merger of both if 
 equitable, if that be the intention (k). 
 
 Where an equitable estate and a legal estate are vested in the Merger of 
 same person, and are co-extensive, there will be a merger at law equitable in 
 and in equity (I), as will doubtless be the case if the legal estate 
 were more extensive than the equitable estate. It has been held 
 that an equitable estate in common will merge in a legal estate in 
 joint tenancy (m). It must be remembered that there may be a 
 severance or partition of a joint estate by one against the express 
 dissent of his co-tenant. 
 
 The more important questions arise where, as in the principal Merger of 
 case, a charge and the estate upon which it is a charge vest in one °h ar K e s :_ 
 and the same person. This is determined, and can only be deter- f i! ar ™ e 
 mined, upon principles peculiar to the Court of Chancery, for an 
 equity of redemption was no estate in law and not recognised in 
 Courts of common law («). In the principal case, the owner of the 
 charge took as devisee of the fee simple of the mortgaged estate, 
 and yet there was held to be no merger. The question in each 
 case is to be determined by the expressed intention of the parties, 
 failing that by the presumption which arises that a person's wishes 
 
 (h) See WiscoVs Case (1599), 2 (I) Selby v. Alston (1797), 3 Ves. 
 
 Co. 60 b. 339 ; S.C. at law mm. Goodright d. 
 
 (i) Jones v. Davies (1861), 31 Alston v. Welts (1781), 2 Dougl. 
 
 L. J. Ex. 116; 7 H. & N. 507; 771 ; Re Douglas, Wood v. Douglas 
 
 ReRadclife,Radcliffev.Bewes(1891), (1884), 54 L. J. Ch. 421 ; 28Ch.D. 
 
 61 L. J. Ch. 186; [1892] 1 Ch. 327. 
 
 227 ; Capital and Counties Hank v. (mi) lie Selous, Thomson v. Selous 
 
 Rhodes (1903), 72 L. J. Ch. 336; (1901), 70 L. J, Ch. 402; [1901] 1 
 
 [1903] 1 Ch. 631. Ch. 921. See Orme's Case (1872), 
 
 (k) Brandon v. Brandon (1861), 42 L. J. C. P. 38 ; L. K. 8 C. P. 
 
 31 L. J. Ch. 47 ; Thellusson v. 281. 
 
 Liddard (1900), 69 L. J. Ch. 693 ; (») See tit. Mortgage, post, 
 
 [1900] 2 Ch. 635. p. 122. 
 
104 
 
 LEADING CASES IN EQUITY. 
 
 Assignment 
 of charge to 
 a trustee. 
 
 Time for 
 ascertaining 
 intention 
 to merge. 
 
 Payment off 
 by mortgagor. 
 
 will be governed by bis interest (o). A tenant for life of an estate 
 upon paying off a charge affecting the inheritance presumptively 
 desires to have the charge kept alive (p). On the other hand, an 
 owner of an estate of inheritance in fee simple paying off a similar 
 charge effects a merger (<?). A tenant in tail restrained from 
 barring his estate tail — and this must be a statutory restraint (r) — 
 is in the position of a tenant for life (s). There is a presumption of 
 intention to merge where the payment is made by a tenant in tail 
 in possession, but not where a tenant in tail in remainder pays off 
 a charge upon the estate, more especially if the estate in remainder 
 is dependent upon the determination of another estate tail(i). 
 
 The fact that a charge has been assigned to a trustee for a tenant 
 in fee simple does not rebut the natural presumption of an inten- 
 tion to merge (u) ; on the other hand the omission of that f ormality, 
 as in the principal case, is not conclusive against keeping the 
 charge alive. 
 
 Where the intention to merge a charge in the land has to be 
 ascertained from presumed intention, and in the absence of express 
 declaration, the time when the charge is paid off is the critical 
 time (x). But there will be no merger where the party is under a 
 misapprehension as to his estate in the land («/). And there may 
 be a merger by acts amounting to a declaration of intention that a 
 charge should not be kept on foot, as where a tenant in fee devised 
 the land without noticing a charge which he has paid off (z). 
 
 A mortgagor cannot defeat a puisne incumbrancer by purchasing 
 a prior incumbrance created by himself (a) ; to do so would be to 
 allow him to derogate from his grant. Further than this, he can- 
 not by a purchase from a prior incumbrancer exercising his power 
 
 (o) Bailey v. Richnrdson (1852), 
 9 Ha. 734 ; Liquidation Estates 
 Purchase Co. v. Willoughby (1898), 
 67 L. J. Ch. 251; [1898] A. C. 
 321 ; Ingle v. Vaughan Jenkins 
 (1900), 69 L. J. Ch. 618; [1900] 2 
 Ch. 368. 
 
 (p) Be Harvey, Harvey v. Hobday 
 (1895), 65 L. J. Ch. 370 ; [1896] 1 
 Ch. 137. See Gifford (Lord) v. 
 Fitzhardinge (Lord) (1899), 68 L. J. 
 Ch. 629 ; [1899] 2 Ch. 32. 
 
 (q) Re French- Brewster, Walters 
 v. French- Brewster (1904), 73 L. J. 
 Ch. 405 ; [1904] 1 Ch. 713. 
 
 (r) Leake, Law of Land, 27. 
 
 (s) Shrewsbury (Countess) v. 
 Shrewsbury (Earl) (1790), 1 Ves. 
 Jr. 227. 
 
 (t) Hoghton v. Hoghton (1852), 
 21 L. J. Ch. 482; 15 Beav. 278; 
 Horton v. Smith (1S58), 27 L. J. 
 Ch. 773; 4K. & J. 624. 
 
 («) Hood y. Phillips (1841), 3 
 Beav. 513. 
 
 (x) Horton v. Smith (1858), 27 
 L. J. Ch. 773 ; 4 K. & j'. 624. See 
 Me French - Brewster, Walters v. 
 Freiich-Breicster (1904), 73 L. J. 
 Ch. 405 ; [1904] 1 Ch. 713. 
 
 (y) Buckinghamshire (Earl) v. 
 Hobart (1818), 3 Swanst. 186. 
 
 (z) Suinfen v. Swinfen (1860), 29 
 Beav. 199. 
 
 (a) Re W. Tasker % Sons, Ltd., 
 Hoare v. W. Tasker # Sons, Ltd. 
 (1905), 74 L. J. Ch. 643 ; [1905] 2 
 Ch. 587. 
 
MERGER. 105 
 
 of sale, set up a title against a subsequent mortgagee (J). It was 
 held in one case, that a purchase of the equity of redemption by a 
 prior incumbrancer gave priority to an incumbrancer puisne to 
 himself (c). This strange and anomalous decision is, to all intents 
 and purposes, overruled (d). 
 
 Mistake. 
 
 MAY v. PLATT. (1900) [40] 
 
 [69 L. J. Oh. 657 ; [1900] 1 Ch. 616.] 
 
 The vendor of leasehold land being sued upon a cove- 
 nant for title contained in the assignment alleged, but 
 failed to prove, a mutual mistake on the part of him- 
 self and ,the purchaser; he also sought to obtain rectifi- 
 cation of the assignment upon the ground of a unilateral 
 mistake on his part, but this claim was rejected. 
 
 It is to be hoped that this case has finally disposed of the heresy 
 that has periodically appeared, and in a few instances unfortu- 
 nately has prevailed, that a unilateral mistake gives title to the 
 active interference of the Court at the instance of the party alleging 
 that he has made the mistake (e). 
 
 It is essential to the validity of a contract that there should be a Unilateral 
 consensus ad idem ; if a person does not accept unconditionally an ml stake in 
 offer made to him, there is no contract (/). By a development of COI1 tract 
 the same principle, if the parties are not at one respecting the 
 subject-matter (g) to identify and ascertain which parol evidence is 
 admissible (/i), there is no contract. 
 
 (*) Otter v. Vaux {lord) (1856), («) See Woolam v. Seam (1802), 
 
 26 L. J. Ch. 128 ; 6 De G. M. & G. 7 Ves. 211 ; post, p. 165 ; Thompson 
 
 638. v. Hickman (1907), 76 L. J. Ch. 
 
 (c) Toulmin v. Steer (1817), 3 254; [1907] 1 Ch. 550. 
 
 Mer. 210. (/) See Leake, Contracts, p. 9. 
 
 (d) Thome v. Cann (1894), 64 (</) VanFraagh v. Everidge (1903), 
 L. J. Ch. 1 ; [1895] A. C. 11. See 72 L. J. Ch. 260 ; [1903] 1 Ch. 
 Liquidation Estates Purchase Co. v. 434. 
 
 Willoughby (1898), 67 L. J. Ch. (h) Macdonald v. Longiottom 
 
 251 ; [1898] A. C. 321 ; Crosbie (1860), 29 L. J. Q. B. 256 ; 1 Ell. 
 Mill v. Sayer (1908), 77 L. J. Ch. &EU. 977 ; Zylev. Richards (1866), 
 466 ; [1908] 1 Ch. 866. 35 L. J. Q. B. 214 ; L.E.1H.L 
 
 222. 
 
106 
 
 LEADING OASES IN EQUITY. 
 
 Unilateral 
 mistake an 
 a defence. 
 
 Jurisdiction 
 to rectify 
 written 
 documents. 
 
 Obvious 
 errors. 
 
 Burden of 
 proof. 
 
 A unilateral mistake, if established, is an answer to an action for 
 specific performance, for that is an extraordinary remedy (i). 
 Where the mistake of one party is caused by the inaccurate state- 
 ments of the other party, an additional reason exists for the refusal 
 of this extraordinary remedy, even if the misstatement be inno- 
 cently made (k) ; but specific performance will not be refused by 
 reason only of an innocent misstatement if the mistake can be 
 imputed also to the negligence of the party complaining (I). In 
 this connection the words of Tindal, 0. J., seem singularly apposite : 
 " We can, in fact, regard the possession of the means of knowledge 
 only as affording a strong observation to the jury to induce them 
 to believe that the party had actual knowledge of the circum- 
 stances; but there is no conclusive rule of law that, because a 
 party has the means of knowledge, he has the knowledge itself . . . 
 There may be cases where the existence of the means of knowledge 
 might lead irresistibly to the inference that the party had actual 
 knowledge " (to). 
 
 The jurisdiction to rectify written documents where by reason of 
 a mistake common to both parties it does not express the actual 
 agreement come to between them, is an original jurisdiction (n). 
 Under the present practice, the plaintiff may in one and the same 
 action claim rectification of a written contract, and also specific 
 performance of the contract as rectified (o). A defendant may claim 
 rectification either by way of counterclaim or in a cross action (p). 
 
 Where the intention of the parties is apparent upon the face of a 
 written document, but there is a mistake in expression in one part, 
 it will be construed according to the obvious intention in equity as 
 well as at law without requiring rectification (q). 
 
 The Court throws upon those who allege that a written docu- 
 ment does not represent the true intention of the parties the burden 
 of showing why and in what respect it should be altered (r). 
 
 (i) Watson v. Marston (1853), 
 4 De G. M. & G. 230 ; Baxendale 
 y. Seale (185S), 24 L. J. Oh. 385 ; 
 19 Beav. 601 ; Re Hare and O'More's 
 Contract (1900), 70 L. J. Ch. 45 ; 
 [1901] 1 Ch. 93. 
 
 (k) Moxey v. Bigwood (1862), 4 
 De G. F. & J. 361 ; affd. (1864) 
 10 Jur. N. S. 697; Lenny v. 
 Hancock (1370), L. E. 6 Ch. 1. 
 
 (I) Goddard v. Jeffreys (1881), 51 
 L. J. Ch. 68. 
 
 (m) Bell v. Gardiner (1842), 11 
 L. J. C. P. 195 ; 4 Man. & G. 11. 
 See also per cur. He Metcalfe, Hicks 
 v. May (1879), 49 L. J. Ch. 192 ; 
 
 13 Ch. D. 236. 
 
 (») LordHardwicke,L.O, iT««£fe 
 v. Royal Excliange Assurance (1749), 
 1 Ves. Sen. at p. 318. 
 
 («) Olley v. Fisher (1887), 56 
 L. J. Ch. 208 ; 34 Ch. D. 367. 
 
 (p) Caird v. Moss (1886), 55 
 L.J. Ch. 854; 33 Ch. D. 22. 
 
 (g) Wilson v. Wilson (1854), 23 
 L. J. Ch. 697 ; 5 H. L. C. 40 
 Re Be la Touche't Settlement (1870), 
 40 L. J. Ch. 85; L. K. 10 Eq. 
 699. See Butler v. Wigge (1667) 
 1 Wms. Saund. 84 and notes. 
 
 (r) Mortimer v. Shortall (1842), 2 
 Dru. & War. 363 ; Swaisland v. 
 
MISTAKE. 107 
 
 The Court has acted upon the uncorroborated testimony of the 
 plaintiff (s). 
 
 Where the Statute of Frauds does not apply, rectification may be Evidence, 
 obtained upon parol evidence (t). The Court is reluctant to act 
 upon affidavit evidence (u). 
 
 In the case of compromise of disputed or doubtful rights, the Compromise 
 Court will support if possible an agreement to settle them if fairly rights, 
 come to, even where both parties are proved to have been in 
 error (x). 
 
 Courts of Equity will sometimes grant relief where the mistake Mistake 
 alleged is one respecting the law, for the maxim ignorardi'a juris w- 
 
 non excusat is not applied so strictly in equity as it is at law (y). 
 But, as a general rule, it is no answer to a suit for specific per- 
 formance that the defendant was under a mistake as to the mean- 
 ing of the words used in a contract (z). 
 
 Mortgage. 
 
 THORNBROUGH v. BAKER. (1675) [41] 
 
 [1 Ch. Cas. 283 ; 3 Swanst. 628 ; 2 Wh. & T. L. C. 1, 7th ed.J 
 
 In this case, upon the death of the mortgagee, the 
 question arose whether, the property being freehold, and 
 the day appointed for redemption past, his real or personal 
 representative was entitled to> the mortgage debt, and 
 Lord Nottingham, L.C., decreed that the personal repre- 
 sentative should have it. According to the report in 
 Swanston, which is copied from Lord Nottingham's manu- 
 
 Dearsley (1861), 30 L. J. Ch. 652 ; 202 ; affg. [1895] 1 Ch. 742. 
 
 29 Beav. 430 ; Tucker v. Bennett (x) See tit. Compromise, ante, 
 
 (1887), 57 L. J. Ch. 507 ; 38 Ch. D. p. 45. 
 
 1 ; Bonhote v. Henderson (1895), 64 (y) Cooper v. Phibbs (1867), L. R. 
 
 L. J. Ch. 556 ; [1895] 2 Ch. 202 ; 2 H. E. 149 ; Daniell v. Sinclair 
 
 affg. [1895] 1 Ch. 74z. (1880), 50 L. J. P. C. 50 ; 6 App. 
 
 (s) Hanley v. Pearson (1879), 13 Cas. 181; Exp. Rhoades, Se Phoades 
 
 Ch. D. 545 ; Lovesyv. Smith (1880), (1899), 68 L. J. Q. B. 804 ; [1899] 
 
 49 L. J. Ch. 809 ; 15 Ch. D. 655. 2 Q. B. 347. 
 
 (t) Johnson v. Bragge (1900), 70 (z) Powell v. Smith (1872), 41 
 
 L. J. Ch. 41 ; [1901] 1 Ch. 28. L. J. Ch. 734 ; L. R. 14 Eq. 85 ; 
 
 (u) Bonhote v. Henderson (1895), Hart v. Hart (1881), 50 L. J. Ch. 
 
 64 L. J. Ch. 556 ; [1895] 2 Ch. 697 ; 18 Ch. D. 670. 
 
108 
 
 LEADING CASES M EQUITY. 
 
 Devolution 
 of debt 
 and land. 
 
 Devise of 
 mortgage 
 
 estates. 
 
 scripts, and is probably the oral judgment which he pro- 
 nounced in Court, the foundation of this decision was that 
 "in natural justice and equity the principal right of the 
 mortgagee is to the money, and his right to the land is 
 only as a security for the money." In the other report 
 the same teason is given in different language, namely, 
 "though it may seem hard that the heir should part the 
 land, and be decreed to make a recompense without having 
 the money which comes in lieu of the land, yet it will not 
 seem so to them who consider the land was never more 
 than a security." 
 
 Where money is lent upon the security of leaseholds or other 
 personal property, the complication which embarrassed the decision 
 in the principal case cannot arise. 
 
 If the day appointed for redemption he not past, then, as appears 
 by the principal case, the heir might be entitled to the money upon 
 the construction of the proviso, which is in the nature of a common 
 law condition. 
 
 Where » mortgagee entered into possession of the mortgaged 
 property, and retained possession for seven years, and then sold 
 the property, but apparently not under a power of sale, and pur- 
 ported to grant the fee to the purchaser, the heir, and not the per- 
 sonal representative, was held entitled to receive the money paid 
 upon redemption (a). This decision rests upon the intention of the 
 purchaser to acquire the property as land, for a mortgagee might 
 bequeath the mortgage debt to his real representative or to a devisee 
 of the land. 
 
 Complicated questions frequently arose respecting the operation 
 of general devises as conveying estates vested in a testator by way 
 of mortgage (b). As regards estates of freehold tenure, it is un- 
 necessary to consider the decided cases, as these estates, notwith- 
 standing any testamentary disposition, became vested in the personal 
 representative by force of sect. 30 of the Conveyancing and Law 
 of Property Act, 1881. This provision originally applied to 
 customary property, but this useful provision was altered in this 
 respect by the Copyholds Act, 1887, the provisions of which are now 
 contained in the Copyholds Act, 1894, s. 88; "section 30 of the 
 
 (a) Cotton v.Ilet (1684), 1 Vern. (1803), 8 Ves. 417, is generally 
 271. referred to as the leading autho- 
 
 (b) Braybrokt (Lord) v. Inskip rity on the eubjeot. 
 
MORTGAGE. 109 
 
 Conveyancing and Law of Property Act, 1881, stall not apply to 
 land of copyhold or customary ten ore vested in the tenant on the 
 Court rolls on trust or by way of mortgage." Where a testator is 
 known or believed to be a mortgagee or trustee of customary lands, 
 a devise of trust and mortgage estates to the personal representative 
 should be inserted, and it is a counsel of wisdom never to omit such 
 a clause. If the clause be omitted, it becomes a question of 
 construction in each case, whether the customary heir or a specific 
 or a residuary devisee should be made a party to a reconveyance or 
 to an action for redemption of the property. 
 
 A registered assignee of a patent upon the principle of the leading Application 
 case may maintain an action for damages and an injunction in °* ru ^ e as 
 respect of an infringement, without making the registered mort- 
 gagee a party (c). 
 
 MARSH v. LEE. (1671) |- 42 ] 
 
 [2 Vent. 337 ; 1 Ch. Cas. 162 ; 2 Wh. & T. L. C. Eq. 107, 7th ed.] 
 
 In 1649, 'English mortgaged part of the manor of 
 Wicksall to Burrell to secure 1,000L In 1655, English 
 acknowledged a statute — an obsolete form of security 
 creating a charge on lands: — to Burrell to secure the repay- 
 ment of 400L In 1662, English mortgaged the manors 
 of Wicksall and of Monfield to Mrs. Duppa to secure 
 7,000Z. And in 1665, English mortgaged the manor of 
 Wicksall to Lee to secure 2,000Z. Lee had no notice of 
 the former mortgages when he advanced his money. Lee 
 subsequently purchased the two incumbrances of 1649 and 
 1655. The Court held that Lee might tack his advance 
 of 2,000L to the two prior incumbrances which he had 
 purchased. 
 
 At the date when the leading case was decided, the principle, of 
 which Aldrich v. Cooper (d) furnishes an example, of apportioning 
 charges upon properties according to the relative value was not 
 
 (c) Van Gelder \ . Sowerby Bridge (d) Aldrichv.Cooper(1803),8YeB. 
 
 Flour Society (1890), 59 L. J. Ch. 382 ; ante, p. 99. 
 583 ; 44 Ch. D. 374. 
 
110 
 
 LEADING CASES IN EQUITY. 
 
 Tacking by 
 puisne mort- 
 gagee on 
 acquisition of 
 legal estate. 
 
 No tacking 
 in the case 
 of equitable 
 charges. 
 
 Tacking by 
 legal mort- 
 gagee on 
 making 
 further 
 advances. 
 
 fully established, but the decree in the principal case did give effect 
 to it. The student must also bear in mind, when reading the older 
 cases, that judgments no longer operate as a charge upon land as 
 against a purchaser for value. 
 
 "A party claiming to tack must, as against the party against 
 whom the tack is to operate, have advanced his money upon the 
 credit of the land. Secondly, he must, except as to time, have an 
 equal equity ; and, thirdly, which follows from the last, he must 
 have advanced his money without notice of the other's claim " (e). 
 It is not essential that the incumbrancer should give value upon 
 the acquisition of the legal estate, for the right is the reward of 
 his superior diligence (/). But a conveyance of the legal estate 
 from a bare trustee, in which category stands a mortgagee of the 
 legal estate who has been paid off, affords no protection, unless the 
 puisne incumbrancer can successfully plead a purchase for value 
 without notice (g). And a mortgagor who has created successive 
 equitable mortgages or charges, but retained the legal estate, is a 
 trustee of it for all according to their priorities, and cannot give an 
 advantage to one of them by a subsequent transfer of the legal 
 estate (A). 
 
 The right to tack is not in strictness a benefit conferred upon the 
 holder of the legal estate. Equity always requires a special case 
 to be made to take away from the owner of the legal estate the 
 benefits which flow from its possession (i). Where the legal estate 
 is outstanding, the right does not exist (k), for in equity the 
 priorities of parties are adjusted on the footing of priority of time 
 of acquisition, according to the maxim qui prior est in tempore, 
 potior est injure (?). 
 
 A mortgagee of the legal estate may tack a further advance or a 
 subsequent charge, if upon making the advance or purchasing the 
 charge he has no notice of an intermediate charge (m). If the 
 mortgagee has notice of the intermediate charge, when he makes 
 
 (e) Lord Cottenham, L.C., Lacey 
 v. Ingle (1847), 2 Phill. 413. 
 
 (/') Taylor v. Russell (1892), 61 
 L. J. Ch. 667 ; [1892] A. C. 244. 
 
 (g) Brecon (Corp.) v. Seymour 
 (1859), 28 L. J. Ch. 606 ; 26 Beav. 
 548; Harphamv. Shacklock (1881), 
 19 Ch. D. 207. 
 
 (A) Sharpies v. Adams (1863), 32 
 Beav. 213 ; Mumford v. Stohwasser 
 (1874), 43 L. J. Ch. 694; L. R. 
 18 Eq. 556. 
 
 (t) See post, p. 128. 
 
 (k) Frere\. Moore (1820), 8 Price, 
 
 475 ; Wilmot v. Pike (1845), 5 
 Hare, 14 ; London f County Ilk. 
 v. Goddard (1897), 66 L. J. Ch. 
 261 ; [1897] 1 Ch. 642 ; Taylor 
 v. London § County Bk. (1901), 
 70 L. J. Ch. 477 ; [1901] 2 Ch. 
 231. 
 
 (Z) Westbury, L.C., Phillips v. 
 Phillips (1862), 31 L. J. Ch. 321 ; 
 4 De a. F. & J. 208. 
 
 (m) Bracey . Marlborough (Duchess) 
 (1728), 2 P. Wins. 491 ; Wylliev. 
 Pollen (1863), 32 L. J. Ch. 782; 3 
 De G. J. & S. 596. 
 
MORTGAGE. m 
 
 his subsequent advance, or purchases a subsequent charge, he 
 cannot tack (n) , unless there be a contract by the subsequent in- 
 cumbrancer permitting the mortgagor to alter the priority (o). 
 
 As regards lands situate in Yorkshire, tacking is abolished, and Tacking in 
 all assurances take effect according to priority of registration, Yorkshire, 
 with a saving ■with respect to priorities acquired before January 1st, 
 1885 (£>). 
 
 A surety is entitled to a transfer of the securities for the debt Tacking 
 which he has guaranteed, if he pays off the debt, and the creditor a S*™*t a 
 cannot tack as against him, unless there be a provision which 
 entitles the creditor to tack (q). 
 
 HUGHES v. BRITANNIA PERMANENT BENEFIT [43] 
 
 BUILDING SOCIETY. (1906) 
 [75 L. J. Ch. 739; [1906] 2 Oh. 607.] 
 
 A leaseholder executed a first mortgage of property K. 
 to the defendants, and subsequently executed a second 
 mortgage of the same property to the plaintiffs. The 
 leaseholder also executed a mortgage of property M. to 
 the defendants. The mortgages excluded the operation, 
 of the provisions of sect. 17 of the Conveyancing and 
 Law of Property Act, 1881. Upon this state of facts 
 it was held that the plaintiffs could not redeem property 
 E. without also redeeming property M. There was 
 another point determined in the case which will be referred 
 to in the notes. 
 
 Sect. 17 of the Conveyancing and Law of Property Act, 1881, Limitation on 
 is in the following terms : " (1) A mortgagor seeking to redeem any the right to 
 one mortgage shall, by virtue of this Act, be entitled to do so, 
 
 In) Bopkinson v. Bolt (1861), 34 Be Cfoy § Co., Ltd., Farmer v. Goy 
 
 L. J. Ch. 468; 9 H. L. C. 514; £ Co., Ltd. (1900), 69 L. J. Ch. 
 
 West v. Williams (1898), 68 L. J. 481 ; [1900] 2 Ch. 149. 
 
 Ch. 127 ; [1899] 1 Ch. 132. (p) Yorkshire Registries Act, 
 
 (o) See Perry Berrick v. Attwood 1884, ss. 14, 16. 
 
 (1857), 27 L. J. Ch. 121 ; 2 De G-. (?) Tories v. Jackson (1882), 51 
 
 & J. 21; Brockleshy v. Temperance L. J. Ch. 690; 19 Ch. D. 615. 
 
 Permanent Bdg. Soc. (1895), 64 See Nicholas v. Ridley (1903), 73 
 
 L. J. Ch. 433 ; [1895] A. C. 173 ; L. J. Ch. 145 ; [1904] 1 Ch. 192. 
 
112 
 
 LEADING OASES IN EQUITY. 
 
 Consolidation 
 hy transferee 
 of mortgage. 
 
 Consolidation 
 as against 
 assignee of 
 the equity of 
 redemption. 
 
 without paying any money due under any separate mortgage made 
 by him, or by any person through whom he claims, on property 
 other than that comprised in the mortgage which he seeks to 
 redeem. (2) This section applies only if and so far as a contrary 
 intention is not expressed in the mortgage deeds or one of them. 
 (3) This section applies only where the mortgages or one of them 
 is made after the commencement of this Act." Where the opera- 
 tion of this section is excluded, the right to consolidate may be 
 restricted by contract (r). 
 
 Where several mortgages which were originally made to different 
 persons, come into the hands of one person, he may consolidate as 
 against the mortgagor or any person in whom the equities of 
 redemption in two or more properties have vested (s). 
 
 The right to consolidate has been adversely criticised, but is not 
 so inequitable as the right of tacking, which has escaped animad- 
 version seemingly. A puisne incumbrancer under the doctrine of 
 tacking may find the property swallowed up by charges subsequent 
 to his own and of which he is ignorant ; but if the right to con- 
 solidate is exercised, he is entitled to a transfer of the securities 
 which he is called upon to redeem (t), although this may, no 
 doubt, involve him in financial obligations which he did not 
 originally contemplate. The right to consolidate may be exercised 
 as well where the interests are equitable as where the mortgagee 
 has the legal estate, and in this respect it differs from tacking (w). 
 But a mortgagee claiming to consolidate is bound by the title of 
 the mortgagor as it appears on the title deeds, and cannot, for 
 instance, show that the mortgagor is a trustee for a third person 
 who has given another mortgage with a view to consolidate all the 
 mortgages (x). 
 
 The right to consolidate against persons interested in the equity 
 of redemption by assignment is rather more complicated. The 
 mortgages must have been made originally by the same person (y). 
 So long as the equity of redemption remains in one hand, whether 
 the owner of the equity of redemption be the original mortgagor 
 or assignee, the right exists, and having once existed may be 
 exercised against any person to whom an interest in the equity of 
 redemption is subsequently assigned (z). But from the date at 
 
 ()■) Bird v. Wenn (1886), 56 
 L. J. Ch. 722 ; 33 Ch. D. 215. 
 
 (s) Pledge v. White (1896), 65 
 L. J. Oh. 449 ; [1896] A. C. 187. 
 
 (t) Tithsy v. Davies (1743), 2 Y. & 
 C. Ch. 399. 
 
 (u) Watts v. Symes (1851), 21 
 L. J. Ch. 713 ; 1 De G. M. & G. 
 
 240; New v. Vmnell (1863), 33 
 h. J. Ch. 19 ; 2 H. & M. 170. 
 
 (x) Sharp v. Richards (1908), 7& 
 L. J. Ch. 29 ; [1909] 1 Ch. 109. 
 
 (y) Sharp v. Sickards (1908), 78 
 L. J. Ch. 29 ; [1909] 1 Ch. 109. 
 
 (z) Vint v. Padgett (1858), 2S 
 L. J. Ch. 21 ; 2 De G. & J. 611 ; 
 
MORTGAGE. 113 
 
 "which an interest in the equity of redemption is created all further 
 right to consolidate ceases (a). 
 
 WILLIAMS v. SORRELL. (1799) [44] 
 
 [4 Ves. 389.] 
 
 A mortgagee made a sub-mortgage of leaseholds in 
 Middlesex. The sub-mortgage was registered in Middle- 
 sex. The mortgagor, having no knowledge of the sub- 
 mortgage, made payments on account of the debt and 
 interest to the mortgagee. The sub-mortgagee brought 
 an action for foreclosure, charging that the registration 
 of the sub-mortgage was notice to the mortgagor. Lord 
 Loughborough, L.C., held, there being no knowledge in 
 fact, nor sufficient notice of the sub-mortgage, that the 
 payments were good as against the mortgagor. 
 
 The principle of this case is usually expressed ' ' a transferee who Estoppel of 
 takes his transfer without the privity of the mortgagor, takes it mor to a & or - 
 subject to the state of accounts between the mortgagor and the 
 original mortgagee." But this statement requires modification. 
 The mortgagor may be estopped from showing the true state of 
 facts, as where he has signed an acknowledgment that a particular 
 sum of money has been in fact advanced, he cannot show that the 
 money acknowledged has not come to his hands, although he could 
 dispute the truth as against the transferor (b). It is difficult to 
 understand the principle upon which these cases rest. That an 
 unpaid vendor's equitable lien (c) should be displaced under similar 
 circumstances is intelligible, for a purchaser's title is absolute 
 whereas a mortgagor has an estate, the existence of which is 
 immediately apparent upon an inspection of the deed. Again, 
 assuming that there is an estoppel by conduct, it is only a repre- 
 
 Pledgev. White (1896), 65 L. J. Ch. («) Bickerton v. Walker (1885), 
 
 449 ; [1896] A. C. 187. 55 L. J. Ch. 227 ; 31 Ch. D. 151 ; 
 
 (a) Jennings v. Jordan (1881), 51 Simmer v. Webster (1902), 71 L. J. 
 
 L. J. Ch. U9 ; 6 App. Can. 698 ; Ch. 561 ; [1902] 2 Ch. 163. See 
 
 Hughes v. Britannia Permanent Bateman v. Hunt (1904), 73 L. J. 
 
 Benefit Bg, Sua. (1906), 75 h. J. K. B. 782 ; [1904 j 2 K. B. 530. 
 
 Ch. 739 ; [1906] 2 Ch. 607. (c) Mackreth t. Sgmmom (1809), 
 
 15 Ves. 329 ; post, p. 210. 
 
 R. I 
 
114 
 
 LEADING CASES IN EQUITY. 
 
 Transactions 
 equivalent to 
 payment. 
 
 Right of 
 transferee. 
 
 sentation "that at the date of the mortgage deed the particular sum 
 was advanced, not that that sum was still owing when the transfer 
 is taken. In any event it is the fraud of the transferor coupled 
 with the negligence of the transferee in not making proper en- 
 quiries, and not the negligence of the mortgagor in signing the 
 acknowledgment, which leads to the loss (d). 
 
 The mortgagor may reduce the sum payable by any transaction 
 which would amount to a plea of payment in a Court of common 
 law, as the value of goods supplied (e). 
 
 A transferee of a mortgage is entitled to tack(/); he is also 
 entitled to the same right to consolidate as is his transferor, or 
 enjoy an independent right to do so by express contract, and if a 
 transferee of a puisne incumbrance, may enjoy an immunity not 
 possessed by his transferor (g). 
 
 [45] 
 
 Dower. 
 
 Equity of 
 redemption 
 an estate. 
 
 CASBORNE v. SCARFE. (1737) 
 [1 Atk. 603 ; 2 Wh. & T. L. C. 6, 7th ed.] 
 
 A woman, being seised in fee of a freehold estate, mort- 
 gaged it, and afterwards married one of the defendants. 
 The mortgage was not redeemed during the marriage, 
 and the mortgagor died having had inheritable issue, 
 leaving the husband living at her death, and he was held 
 entitled as tenant by the curtesy. 
 
 As appears from the cases cited in the leading case, a wife was 
 not dowable out of an equity of redemption, or indeed out of equit- 
 able estates, although the husband was entitled to an estate by the 
 curtesy in his wife's equitable estates. This was rectified by the 
 Dower Act, 1833, s. 2, which confers a defeasible right to dower in 
 equitable as well as in legal estates. 
 
 An equity of redemption is an estate in land, as Lord Hardwicke 
 points out in the principal case. And if the mortgagor creates an 
 estate in the equity of redemption, as by agreeing to grant a lease, the 
 
 (d) See Schvljleld v. Londesborongh 
 (Earl) (^96), 6'i L. J. Q. B. 5i)3 ; 
 [189t>] A. C. 514. 
 
 (e) Noirish v. Marshall (1821), 5 
 Madd. 475. 
 
 (/) See Marsh v. Lee (1671), 2 
 Vent. 83? ; ante, p. 109. 
 
 (g) See Sights v. Britannia Per- 
 manent Benejit Building Society 
 (1906), 75 L. J. Ch. 739 ; [1906] 2 
 Ch. 607 ; ante, p. 111. 
 
MORTGAGE. 115 
 
 intended lessee may redeem, although the lease would not be bind- 
 ing upon the mortgagee, and if granted would not be a beneficial 
 lease (h). So, a person claiming under a voluntary conveyance 
 may redeem (i). A plaintiff in a creditor's suit for the administra- 
 tion of the estate of a deceased mortgagor, if there has been a decree 
 for the sale of the real estate, may redeem (7c) ; but creditors claim- 
 ing the benefit of a deed of assignment for the benefit of creditors 
 cannot redeem unless the trustee refuses to do so, but they would 
 probably be admitted to redeem in the trustee's name upon giving 
 him a proper indemnity against his liability for costs (I). 
 
 A person interested in the equity of redemption has the right of Right of 
 
 having the account taken on the same footing as the mortgagor assignee of 
 ■, , , equity of 
 
 kas(m). . . . redemption. 
 
 In former times complicated questions arose in the case of mort- primary 
 gages of land as to the primary liability of the personal estate of a, liability of 
 •deceased mortgagor to discharge the mortgage debt (n) ; but the P e _ rs ° n - al 
 Eeal Estates Charges Acts, 1854, 1867, and 1877, have fixed the 
 primary liability upon the property charged in exoneration of the 
 personal estate, unless some other provision has been made for the 
 discharge of the property (o). 
 
 FARRER v. LACY HARTLAND & CO. (1885) [46] 
 
 [55 L. J. Oh. 149; 31 Ch. D. 42.] 
 
 In this case the Court of Appeal settled the ordinary 
 form of order in proceedings by a mortgagee to enforce 
 his security. The form combines in one order all the 
 relief which the mortgagee would have been entitled to 
 prior to the Judicature Act, 1873 (36 & 37 Vict. c. 66), 
 in proceedings at law and in equity. It gives (1) imme- 
 
 (h) Tarn v. Turner (1888), 57 (1785), 1 Bro. C. C. 454 ; lWh.4 
 
 1. J. Ch. 1085 ; 39 Ch. D. 456. T. L. C. 1 ; Davies v. Bush (1830), 
 
 (i) Howard v. Harris (1683), 1 4 Bli. N. S. 305, and note; Loose- 
 
 Vera. 190; post, p. 121. more v. Knapman (1853), 32 L. J. 
 
 (*) Christian v. Field (1842), 11 Ch. 1004; Kay, 123; Field v. 
 
 L. J. Ch. 97 ; 2 Hare, 177. Moore (1855), 25 L. J. Ch. 66 ; 7 
 
 (I) 'Iroughton v. Binlces (1801), 6 De G. M. & G. 691, for the older 
 
 Yes. 573. law. 
 
 (m) Mainlmd v. Tfpjohn (1889), (0) See notes to Tower v. Sous 
 
 58 L. J. Ch. 361 ; 41 Ch. D. 126. {Lord) (1811), 18 Ves. 132; ante, 
 
 (») See Ancaster {Duke) v. Mayer p. 24. 
 
 i 2 
 
116 
 
 LEADING CASES IN EQUITY. 
 
 Right of 
 
 mortgagee 
 to pursue 
 alternative 
 remedies. 
 
 diate judgtnent for the sum due on the covenant for pay- 
 ment, and costs as in a common law action ; (2) an inquiry 
 as to what is due under or by virtue of the mortgage 
 security, after giving credit for what has been received 
 under the first head; and directs (3) that upon payment 
 of the amount due the mortgagee shall reconvey, or if 
 default be made in payment the mortgagor stand fore- 
 closed of his equity of redemption. 
 
 A Court of Equity permitted a mortgagee to pursue all his. 
 remedies simultaneously. Thus where a mortgagee got possession 
 of the estate, sued the mortgagor on his covenant to repay the- 
 money advanced, and brought an action to foreclose, the Court 
 would not interfere unless the mortgagor brought into Court the- 
 amount claimed by the mortgagee to be due to him (p). And 
 where the mortgagee has failed to obtain payment in full upon 
 suing upon the covenant he may foreclose the mortgagor ( q). If, on. 
 the other hand, he elects to take his remedy against the land, he- 
 cannot pursue subsequently his personal remedy, unless he can 
 restore the property mortgaged to the mortgagor (r). And if the 
 mortgagor assign the equity of redemption to a third person, and 
 upon being sued by the mortgagee pays up the amount due under 
 the covenant, the mortgagee must assign the property to him. 
 subject to the right of the third person to redeem (s). If a mort- 
 gagee, after having obtained a decree for foreclosure, exercises his- 
 power of sale, it is probable that he will be deemed to admit the 
 right of the mortgagor to the surplus proceeds, after satisfying 
 debt, interest and costs (t). After judgment for the second account 
 in the form settled in the principal case, the mortgagee is precluded 
 from bringing an action for principal or interest due under the 
 covenant for repayment accruing after the date of the judgment (u). 
 
 (p) Pees v. Parkinson (1794), 2 
 Anetr. 497. 
 
 (q) Lockhardt v. Hardy (1846), 
 15 L. J. Ch. 347 ; 9 Beav. 349. 
 
 ()■) Perry v. Barker (1803), 8 Ves. 
 627; (1806), 13 Ves. Iv8; Lockhardt 
 v. Hardy (1846), 15 L. J. Ch. 347 ; 
 9 Beav. 349; Palmer v. Hendrie 
 (18o9), 27 Beav. 349; (1860), '28 
 Beav. 341. See Worthington § Co. 
 v. Abbott (1910). 79 L. J. Ch. 252 ; 
 [1910] 1 Ch. 688. 
 
 (s) Kinnaird v. Trollope (1888), 
 67 L. J. CH. 905 ; 39 Ch. D. 636. 
 
 (0 See (Vahonv. Marston (1853), 
 4 De G. M. & G. 2 0; Convey- 
 ancing and Law of Property Act, 
 1881, s. 21, sub-s. (3). 
 
 («<) Poulett ( Earl) v. Hill ( Viscount) 
 (1893). 62 L. J. Ch. 4bG; [1893] 1 
 Ch. 277 ; Williams v. Hun'. (1905), 
 74 L. J. K. B. 364 ; [1905] 1 K. B. 
 512. 
 
MORTGAGE. 117 
 
 And a mortgagee cannot exercise his power of sale after an order 
 niei for foreclosure has been made, except by leave of the Court (a;). 
 
 The form of security may fix the remedy of the creditor, as in Foreclosure 
 the case of railway companies where the security of the debenture inapplicable 
 holders only extends to the profits obtained by working the line, 
 and they will be entitled only to the appointment of a receiver of 
 those profits (y). So the form of the security given in other cases 
 may also limit the right of the creditor to the appointment of a 
 receiver (z). And where it appears from the form of the security 
 that the remedy of the creditor should be a sale he cannot have 
 foreclosure (a). 
 
 The general rule is that all persons interested in the mortgage Parties to 
 
 money secured must be made parties, and if one or more of several foreclosure 
 
 . . action, 
 
 mortgagees will not join as plaintiff in a foreclosure action he 
 
 must be made a defendant (6). A person to whom the legal estate 
 has been conveyed as trustee for the person advancing the money 
 is a necessary party to an action for foreclosure (c). Trustees, 
 executors, or administrators are the only necessary parties to an 
 action for foreclosure or redemption, but the Court may order 
 beneficiaries to be added as parties (d). In the case of fore- 
 closure actions, beneficiaries interested in the equity of redemption 
 should be added, unless it appears that the trustees, executors, or 
 administrators have sufficient funds in their hands to enable 
 them to redeem the property (e) ; nor will the Court exercise the 
 power of allowing one or more persons to represent others in the 
 same interest, where the numerous parties are interested in the 
 equity of redemption (/). The general rule was, and subject to 
 the before mentioned limi tation still is, that all persons interested 
 in the equity of redemption, or in the taking of the account, must 
 be made parties to an action for foreclosure (g). A bankrupt 
 
 (z) Stevensv. Tlieatres, Ltd. (\903), (c) Wood v. Williams (1819), 4 
 
 72 L. J. Ch. 764; [1903] 1 Ch. 857. Madd. 186. 
 
 (y) Gardner v. L. C. % D. Py. (d) R. S. C. 1883, Ord.XVI.r. 8. 
 
 •(1867), 36 L. J. Ch. 323 ; L. E. 2 (e) Francis v. Harriion (1889), 59 
 
 Ch. 201. L. J. Ch. 24S ; 43 Ch. D. 183. See 
 
 (z) Taylor v. Emerson (1843), Aylward v. Lewis, [1891] 2 Ch. 81. 
 
 4 Dr. &War. 117. (/) R. S. C. 1883, <>d. XVI. 
 
 (a) Schweitzer v. ATayhew (1862), r. 9 ; Griffith v. Pound (1890), 59 
 31 Beav. 37 ; Tenant v. Trenchard L. J. Ch. 522 ; 45 Ch. D. 553. 
 (1868), 38 L. J. Ch. 169 ; L. E. 4 (g) Stokes v. Clendon (1790), 3 
 Ch. 537. See Locking v. Parker Swanst. 150, n. ; Payne v. Compton 
 <1872), 42 L. J. Ch. 257 ; L. R. 8 (1837), 2 Y. & C. Ex. 457 ; Bolton 
 Ch. 30. v. Salmon (1891), 60 L. J. Ch. 
 
 (b) Lower. Morgan {17 8i), 1 Bro. 239; [1891] 2 Ch. 48; Wallace v. 
 C. C. 368 ; Davenport v. James Evershed (lb99), 68 L. J. Ch. 416 ; 
 <1S47), 7 Hare, 249. [1899] 1 Ch. 891. 
 
118 
 
 LEADING GASES IN EQUITY. 
 
 Mortgagor in 
 possession. 
 
 Repairs and 
 improve- 
 ments. 
 
 mortgagor is an improper party to foreclosure proceedings (h). A 
 puisne mortgagee may obtain » foreclosure decree against parties 
 interested in the equity of redemption under mortgages over 
 ■which he has priority and the mortgagor, without making mort- 
 gagees having priority over him parties to the suit (?')• 
 
 A mortgagor in possession has sometimes been called tenant at 
 will or tenant by sufferance to the mortgagee. In strictness he was 
 neither, but a person against whom the mortgagee might enter or 
 bring an action of ejectment without notice to quit or demand of 
 possession (k). In some instances the deed contained a redemise 
 of the property by the mortgagee to the mortgagor (I), or the mort- 
 gagor attorned tenant to the mortgagee (m). This was his position 
 at law. In a Court of Equity, however, he was regarded as having 
 the beneficial possession, and could receive and retain, without 
 accounting to the mortgagee, all the profits of the land (m). But 
 the mortgagee could at any time evict him, and from that date 
 receive all the rents due from the tenants of the mortgagor (o), and 
 arrears of rent accrued due and unpaid (p). But the mortgagee- 
 may at any time by notice determine the right of the mortgagor to 
 take the profits, and may by injunction restrain him from so 
 doing (q). 
 
 A mortgagee in possession is entitled, as a matter of right, to be 
 allowed in account necessary repairs ; and he is also allowed his 
 expenditure for permanent improvements if he can make out a 
 special case for them at the hearing (r) ; but he is not bound to 
 
 (A) Lloyd v. Lander (1821), 5 
 Madd. 282 ; Kerriclc v. Safety 
 (1835), 4 L. J. Ch. 162; 7 Sim. 
 317. See Rochfort v. Battersby 
 (1849), 2 H. L. C. 388. 
 
 (») Rose v. Page (1829), 2 Sim. 
 471 ; Richards v. Cooper (1842), 5 
 Beav. 304. 
 
 (k) Doe v. Lay (1842), 12 L. J. 
 Q. B. 86; 2 Q. B. 147; Doe v. 
 Tom (1843), 12 L. J. Q. B. 264; 
 4 Q. B. 615. See Keech v. Ball 
 (1778), 1 Dougl. 21 ; Shirley, 
 Leading Cas. 101 ; Copestake v. 
 Roper (1907), 77 L. J. Ch. 610 ; 
 [1908] 1 Ch. 10. 
 
 (1) Wilkinson v. Hall (1837), 6 
 L. J. C. P. 82; 3 Bing. N. C. 
 508. 
 
 (m) Morton v. Woods (1868), 38 
 L. J. Q. B. 81 ; L. R. i Q. B. 
 293 ; Exp. Jackson (1880), 14 Ch. D. 
 725 ; Exp. Voiscy (1882), 52 L. J. 
 
 Ch. 121 ; 21 Ch. D. 442. 
 
 («) Exp. Wilson (1813), 2 Ves. & 
 B. 252 ; Re Hoare, Hoare v. Owen 
 (1892), 61 L. J. Uh. 541 ; [1892] 
 3 Ch. 94. See Preston v. Tunbridge- 
 Wells Opera Souse, Ltd. (1903), 72 
 L. J. Ch. 774 ; [1903] 2 Ch. 323. 
 
 (o) Litchfield v. Ready (1853), 20 
 L. J. Ex. 51 ; 5 Ex. 939 ; Wilton v. 
 Dunn (1851), 21 L. J. Q. B. 60; 
 17 Q. B. 471 ; Underhay v. Read 
 (1887), 57 L. J. Q. B. 129; 20 
 Q. B. D. 209. 
 
 (p) Pope v. Biggs (1829), 7 L. J. 
 (O. S.) K. B. 216 ; 9 B. & C. 245 ; 
 Re Ind, Coope <$■ Co., Fisher v. Lnd, 
 Coope f Co. (1911), 80 L. J. Ch. 
 661 ; [1911] 2 Ch. 223. 
 
 (q) Bagnall v. Villar (1879), 4& 
 L. J. Ch 695 ; 12 Ch. D. 812. 
 
 ()•) Tipton Green Colliery v. Tipton 
 Moat Colliery (1877), 47 L. J. Ch. 
 152; 7 Ch. D. 192; Shepard v. 
 
MORTGAGE. 119 
 
 make any extraordinary or speculative expenditure («). He may 
 replace buildings that have become ruinous (t) ; but could not 
 formerly commit any act of voluntary waste (u), except that where 
 the security was insufficient he could formerly open mines and cut 
 timber, being only charged with the net profits (x). A mortgagee 
 in possession has a statutory power to cut and sell timber, not 
 being timber within the doctrine of equitable waste (y), or to enter 
 into a contract for cutting and sale of timber to be completed 
 within any time not exceeding twelve months from the making of 
 the contract (z). If the security is sufficient to satisfy the charge, 
 the mortgagee is charged with the gross proceeds of the minerals 
 raised from newly-opened mines, and the last-mentioned statutory 
 provision does not, in express terms, alter the rule as regards 
 timber (a). The mortgagee cannot charge the mortgagor in account 
 with extravagant expenditure in improvements, thus, in effect, 
 " improving a mortgagor out of his estate" (b). 
 
 The general rule is that a mortgagee is entitled as of right to the Costs, 
 costs of a redemption or foreclosure suit; these costs are those 
 payable as between the mortgagee and his solicitor, and are added 
 to the security and paid in the event of redemption by the mort- 
 gagor (c). And where the mortgagee is ordered to pay the costs of 
 a prior incumbrancer or any other necessary party, and the order 
 is not made against him in respect of any default or improper 
 conduct on his part, he may generally add these costs to his 
 security (d). Where costs are ordered to be added to the security 
 they carry interest from the date of the taxing master's certificate, 
 and not from the date of the order (e), and in this respect differ 
 from costs ordered to be paid to the mortgagee personally (/). A 
 mortgagee is entitled as a general rule, as part of his costs, to all his 
 costs of perfecting his security and enforcing his rights under the 
 
 Jones (1882), 21 Ch. D. 469 ; Hen- (z) Conveyancing and Law of 
 
 derson v. Astwood, [1894] A. C. Property Act, 1881, s. 19. 
 
 150. (a) Millett v. Davey (1862), 32 
 
 (s) Eussel v. Smithies (1792), 1 L. J. Ch. 122 ; 31 Beav. 470. 
 
 Anstr. 96; Howe v. Wood (1822), (b) Sandon v. Hooper (1843), 12 
 
 2 J. & W. 553. L. J. Ch. 309 ; 6 Beav. 246 ; affd. 
 
 (t) Marshall v. -Cave (1824), 3 (1844), 14 L. J. Ch. 120. 
 
 L. J. (0. S.) Ch. 57. (c) Cottertll v. Stratton (1872), 42 
 
 («) Sandon v. Hooper (1843), 12 L. J. Ch. 417 ; L. R. 8 Ch. 295. 
 
 L. J. Ch. 309 ; 6 Beav. 246 ; affd. (d) Browne v. Lockhart (1842), 9 
 
 (1844), 14 L. J. Ch. 120. Cp. L. J. (N. S.) Ch. 167; 10 Sim. 
 
 Clarke v. Ramus (1891), 60 L. J. 284 ; Smith v. Chichester (1842), 2 
 
 Q. B. 679 ; [1891] 2 Q. B. 456. Dr. & War. 393. 
 
 (x) Millett v. Davey (1862), 32 (e) Eardley v. Knight (1889), 58 
 
 L. J. Ch. 122 ; 31 Beav. 470. L. J. Ch. 622 ; 41 Ch. D. 537. 
 
 (y) See Garth v. Cotton (1753), 1 (f) Taylor v. Roe (1893), 63 
 
 Ves. Sen. 524 ; post, p. 213. L. J. Ch. 282 ; [1894] 1 Ch. 413. 
 
120 
 
 LEADING CASES IN EQUITY. 
 
 Dismissal of 
 action for 
 redemption. 
 Effect of 
 foreclosure. 
 
 Ke-openinsr 
 foreclosure. 
 
 contract (g). A mortgagee may be deprived of his costs by reason 
 of oppressive conduct, as by claiming more than he is justly entitled 
 to, or refusing to execute a reconveyance, and may, under the like 
 circumstances, be ordered to pay costs (/i); but if he sets up a 
 claim to a larger sum than he is found entitled to, that alone is not 
 sufficient to deprive him of his costs if put forward bond fide (i). 
 And where a mortgagee denies the right of the mortgagor to redeem 
 he will be deprived of his costs (7c). 
 
 The dismissal of an action for redemption operates as a judgment 
 for foreclosure (I). 
 
 By the order for foreclosure the mortgagor's interest is trans- 
 ferred to the mortgagee, who thus acquires a new interest in the 
 property (m). 
 
 A mortgagor may apply within a reasonable time after the order 
 for foreclosure has been made absolute to be admitted to redeem, 
 but the order is not of course, and will only be made upon equitable 
 terms (re). And he is also entitled to have the period within which 
 to pay the amount found due by the certificate and the subsequent 
 interest enlarged, but the order is discretionary, and the immediate 
 payment of interest and costs will invariably be made a term for 
 granting the indulgence (o). 
 
 (g) National Provincial Bk. of 
 England v. Games (1886), 55 L. J. 
 Ch. 576 ; 31 Ch. D. 582, where the 
 principal cases are referred to. 
 
 (A) Detillin v. Gale (1802), 7 Ves. 
 583 ; Harmerv. Priestley (1853), 22 
 L. J. Ch. 1041 ; 16 Beav. 669 ; 
 Greenwood v. Sutcliffe (1891), 61 
 L. J. Ch. 59 ; [1892] 1 Ch. 1 ; 
 Rourke v. Robinson (1911), 80 L. J. 
 Ch. 295; [1911] 1 Ch. 480. 
 
 (») Norton v. Cooper (1854), 25 
 L. J. Ch. 121 ; 6 De G. M. & G. 
 728 ; Cotterell v. Stratlon (1872), 42 
 L. J. Ch. 417 ; L. R. 8 Ch. 295. 
 
 (A) Harvey v. Tebbutt (1820), 1 
 J. & W. 197 ; National Bank of 
 Australasia V. United Hand in Hand 
 and Band of Hope Co. (1879), 4 App. 
 Cas. 391 ; Kinnaird v. Trollop? 
 (1889), 68 L. J. Ch. 556 ; 42 Ch. 
 D. 610. 
 
 (I) Winchester (Bp.) v. Paine 
 (1805), 11 Ves. 194. See Gollinsm 
 v. Jeffery (1896), 65 L. J. Ch. 375 ; 
 [1896] 1 Ch. 644. 
 
 (»«) Pugh v. Neath (1882), 51 
 L. J. Q. B. 367 ; 7 App. Cas. 235. 
 In this respect, the effect of the 
 order is different from a disentailing 
 assurance which enlarges the estate : 
 Lilford {Lord) v. Alt. -Gen. (1867), 
 36 L. J. Ex. 116 ; L. R. 2 H. L. 
 63. 
 
 («) Wichalse v. Short (1713), 3 
 Bro. P. C. 558 ; Campbell v. Holy- 
 land (1877), 47 L. J. Ch. 145 ; 7 
 Ch. D. 166. 
 
 («) Eyre v. Hanson (1S40), 9 
 L. J. Ch. 302 ; 2 Beav. 478 ; Hol- 
 ford v. Yate (1855), 1K.1J. 677 ; 
 Forrest v. Shore (1884), 32 W. E. 
 356. 
 
MORTGAGE. 121 
 
 HOWARD v. HARRIS. [47] 
 
 [1 Vern. 33, 190 ; 2 Wh. & T. L. C. Eq. 11, 7th ed. ; S. 0. Eq. 
 Oas. Ab. 312, pi. 11 ; 2 Ch. Cas. 147.] 
 
 This priginal bill was filed by a jointress of part of 
 the mortgaged lands to redeem. Lord Nottingham made 
 a decree in favour of the jointress, and his decree was 
 affirmed upon a rehearing. The mortgage deed con- 
 tained a proviso for redemption, that if the mortgagor 
 or the heirs male of his body should in June, 1686, pay 
 the principal sum of l,OO0Z. and 60Z. per annum interest 
 in the meantime, then the mortgagor or the heirs male 
 of his body might re-enter; and the mortgagor cove- 
 nanted that no one but he or the heirs male of his body 
 should be admitted to redeem. The mortgage deed also 
 contained an express covenant by the mortgagor for pay- 
 ment of principal and interest. The mortgagor died 
 without issue. Redemption was decreed by Lord Keeper 
 North, upon payment of the principal money advanced 
 and interest according to the covenant, and the decree also 
 directed the allowance of interest on arrears of interest. 
 
 So far as the decree allows compound interest on the arrears of 
 interest the case is anomalous, as 'will be seen from the cases cited 
 in Raithby's note, in Vernon, to the principal case ( p). 
 
 The student should observe that the more usual form of proviso 
 for redemption at the present day is that upon payment of the 
 principal money and interest upon the appointed day the mort- 
 gagee will reconvey the mortgaged premises (7). And the right to 
 re-enter was reserved to the mortgagee and his heirs male, because 
 a condition of re-entry upon a conveyance in fee can only be 
 reserved to the grantor or his heirs (r), and this the heir in tail was, 
 although the heir general was a member of a larger class (s). 
 
 (p) See also Waring v. Cunliffe Litt. 205a ; 1 Prideaux, Conv. 714. 
 (1790), 1 Ves. Jr. 99. (r) Co. Litt. 214a, 379a; Fitchet 
 
 (q) See per Chitty, L.J., Durham v. Adams (1740), 2 Stra. 1128. 
 Bros. v. Robertson (1898), 07 L. J. (s) See Leake's Law of Land, 
 
 Q. B. at p. 488 ; [1898] 1 Q. B. at pp. 25, 26. 
 p. 772; Butler's note (1) to Co. 
 
122 
 
 LEADING CASES IN EQUITY. 
 
 Equity of 
 redemption. 
 
 Bargain for 
 
 collateral 
 benefit. 
 
 Conditional 
 purchase. 
 
 At the common law, if the money secured by the mortgage deed 
 was not paid at the day appointed for payment, the estate of the 
 mortgagee became absolute ; but in a Court of Equity the property 
 was regarded as a pledge only, and the mortgagor, unless he had 
 forfeited his right by lapse of time (<), was admitted to redeem the 
 property upon equitable terms which always included the principal 
 due, all arrears of interest, and the costs, but might include other 
 matters (u). 
 
 When the laws against usury were in force the Court of Chancery 
 did not allow a mortgagee to stipulate for a collateral benefit as 
 part of the original bargain. ' ' This Court will not permit that ; 
 as tending to usury ; though it is not usury " (x). Since the repeal 
 of the usury laws an original bargain for a collateral advantage is 
 not necessarily invalid (y). But the mortgagor is entitled, when 
 the time for redemption has arrived, to have the mortgaged property 
 restored to him in the same state as it existed when the mortgage 
 was created (2). But a mortgagee, after the relation of mortgagor and 
 mortgagee has been created, may make a valid contract, the effect 
 of which is to put a clog upon the mortgagor's right to redeem (a). 
 The ground of this decision is that a mortgagee is not a trustee for 
 the mortgagor (b). Accordingly, a mortgagee may take a convey- 
 ance of the equity of redemption from his mortgagor (c). A clause 
 postponing for a very long period (twenty-eight years) the right of 
 the mortgagor to redeem without the consent of the mortgagee, 
 there being no correlative clause against calling in the mortgage 
 debt, was held invalid as a clog on the right to redeem (d). 
 
 An out and out purchase which reserves to the seller the right to 
 
 (t) Bodies. Kealey (1813), 1 Ves. 
 & B. 536; (1819), 6 Madd. 181; 
 Ashton v. Milne (1833), 3 L. J. 
 (N. S.) Ch. 52 ; 6 Site. 369. See 
 Richardson v . Younge(\$l\), 40 L.J. 
 Ch. 338; L. R. 6 Ch. 478. 
 
 (u) Grant, M.E.. , Jones v. Gibbons 
 (1804), 9 Ves. 407; Farwell, J., 
 Powell v. Brodhurst (1901), 70 L. J. 
 Ch. 587; [1901] 2 Ch. 160. 
 
 (x) Chambers v. Goldtvin (1S01), 
 9 Ves. 254. 
 
 (y) Mainland v. Upjohn (1889), 
 58 L. J. Ch. 361 ; 41 Ch. D. 126 ; 
 Biggs r. Hoddinott (I89«), 67 L. J. 
 Ch. 540 ; [1898] 2 Ch. 307. 
 
 (z) Noakes v. Rice (1901), 71 
 L. J. Ch. 139; [1«02] A. C. 21; 
 Bradley v. Oarritt (1903), 72 L. J. 
 K. B.471; [1903]A.C.253; Samuel 
 v. Jarrah Timber and Woodpaving 
 
 Corporation (1904), 73 L. J. Ch. 
 526 ; [1904] A. C. 323. See Exp. 
 Williams, Re Raggett (188"), 50 
 L. J. Ch. 187 ; 16 Ch. D. 117. 
 
 (a) Reeve v. Lisle (19n2), 71 
 L. J. Ch. 768; [1902] A. C. 461. 
 
 {/>) Kirkicood-v. Thompson (I860), 
 34 L. J. Ch. 501 ; 2 De G. J. & S. 
 613; Warner v. Jacob (1882), 51 
 L. J. Ch. 642; 20 Ch. D. 220; 
 Taylor v. JRuisell (1892), 61 L. J. 
 Ch. 657 ; [1892] A. C. 244. 
 
 (c) Jin-diev. Millett I1S19), Taml. 
 28 ; Waters v. Groom (1844;, 11 
 CI. & F. 684. 
 
 (d) Morgan v. Jeffreys (1910), 79 
 h. J. Ch. 360; [1910] 1 Ch. 620. 
 See Hfobbs v. Law Reversionary Int. 
 Soc. (1896), 65 L. J. Ch. 906 ; 
 [1896] 2 Ch. 830. 
 
MORTGAGE. 123 
 
 re-purchase is a transaction recognized in equity, and distinguish- 
 able from a mortgage in that any stipulation as to the time within 
 which the right to re-purchase must be exercised will not be 
 relieved against (e). Evidence is admissible to show that a trans- 
 action, ostensibly an absolute sale with a right to re-purchase, is 
 in fact a mortgage, but the burden of proof is upon those who 
 dispute the apparent effect of the deed(/). The right to re- 
 purchase must be limited so as to be exercisable within the limits 
 of the rule against perpetuities (<?). 
 
 If the mortgagor does not pay off the amount secured according Notice to 
 to the agreement and the mortgage is by deed, he must give the P a y ™- 
 mortgagee six months' notice of his intention to pay off, or pay six 
 months' additional interest {h). The foundation of this rule is that 
 a mortgage by deed is a permanent investment, and it is only 
 equitable to give the mortgagee sufficient time to find another 
 suitable permanent investment for his money or to pay compensa- 
 tion instead. Conversely, if the mortgage is by deposit of title 
 deeds, which is the usual form employed where the loan is intended 
 by the parties to be of a temporary character, the mortgagee is 
 only entitled to notice of intention to pay off if he stipulates for 
 it {%). A mortgagee may dispense with the necessity of giving him 
 notice if he shows that he is prepared to accept repayment, as by 
 requiring the mortgagor to pay him off, or by instituting proceed- 
 ings to enforce his security (k), taking possession (I), carrying in a 
 proof in an action to administer the estate of a deceased mort- 
 gagor (ro), consenting in an action to the sale of the property in 
 mortgage (n), or by exercising his power of sale(o). But in a 
 foreclosure action where the judgment directs that upon payment 
 of the amount found due by the certificate with six months' interest 
 
 («) Williams v. Owen (1840), 12 [1911] 2 Ch. 301. 
 
 L.J. Ch. 207; 5 M. & Or. 303; (i) Fitzgerald? 's Trustee v . Mellersh 
 
 Perry v. Meddowcroft (1841), 4 (1891), 61 L. J. Ch. 231 ; [18i)2] 
 
 Beav. 197 ; affd. (1842), 12 L. J. 1 Ch. 385. 
 
 Ch. 104. See Salt v. Northampton {k) Letts v. Hutchins (1871), L.R. 
 
 (Marq.) (1891), til L. J. Ch. 49 ; 13 Eq. 176 ; Re Alcock, Prescott v. 
 
 [1892] A. C. 1. Phipps (1883), 23 Ch. D. 372. 
 
 (/) Langtonv. Sorton (1842), 11 (I) Uovill r. Endle (1896), 65 
 
 L. J. Ch. 233 ; 5 Beav. 9 ; Rolmes L. J. Ch. 542 ; [1896] 1 Ch. 648. 
 
 v. Mathews (1855), 9 Moo. P. C. (m) Mation v. Swift (1841), 5 
 
 413. Jur. 645. See Smith v. Smith 
 
 {g) L. $ S. W. Ry. Co. v. Gomm (1891), 60 L. J. Ch. 694; [1891] 3 
 
 (1882),5lL. J. Ch.630; 20Ch.D. Ch. 550. 
 
 662. (n) Day v. Day (1862), 31 L. J. 
 
 (A) Spencer Bell to L. % S. W. Ch. 806 ; 31 Beav. 270 ; Re Moss, 
 
 Ry. (1885), 33 "W. E. 771 ; Smith Levy v. Semll (1885), 56 L. J. Ch. 
 
 v. Smith (1891), 60 L. J. Ch. 694 ; 87 ; 31 Ch. D. 90. 
 
 [1891] 3 Ch. 550 ; Edmondson v. (o) Banner v. Berridge (1881), 50 
 
 Copland (1911), 80 L. J. Ch. 632 ; L. J. Ch. 630; 18 Ch. D. 254. 
 
124 
 
 LEADING GASES IN EQUITY. 
 
 Parties to 
 
 redemption 
 
 notion. 
 
 Mortgagee 
 in possession 
 
 ■within six months after the date of the certificate, the mortgagee 
 shall re-convey, the mortgagor is not entitled to any allowance in 
 the nature of a discount by anticipating the day of payment (p). 
 
 A puisne mortgagee seeking to redeem a prior mortgage must 
 make incumbrancers who rank subsequently to him parties, the 
 principle upon -which the Court acts being stated: "as far as it 
 is possible, the Court endeavours to make a complete decree, that 
 shall embrace the whole subject, and determine upon the rights of 
 all the parties interested in the estate " (q). 
 
 A mortgagee in possession is liable to account for his actual 
 receipts, and also for all sums -which without his wilful default 
 might have been so received (r) ; and if in actual occupation may 
 be fixed with an occupation rent (s). A legal mortgagee who has 
 taken possession may apply to the Court to appoint » receiver 
 with a view to obtain relief from further liability to account on 
 that footing (t). 
 
 Annual rests. A mortgagee by taking possession makes himself liable to have 
 the account taken against him with annual rests if, but only if, 
 there is not an arrear of interest when he takes possession («). 
 And there may exist circumstances of so special a character, as 
 where the security is jeopardised, as to induce the Court to refuse 
 to direct annual rests even where there is no arrear of interest when 
 possession is taken [x). As soon as the receipts exceed the interest, 
 although occurring in the interval between the rests, the capital 
 sum due is taken to be reduced by the amount of the excess, and 
 the subsequent annual rests are computed from the date when the 
 balance is thus struck (y). Eests are never directed for a broken 
 period (z). Annual rests may be directed on an occupation rent (a). 
 
 (p) Hill v. Rowlands (1897), 66 
 L. J. Ch. 689 ; [1897] 2 Ch. 361. 
 
 (g) Falkv. Clinton {Lord} (1805), 
 12 Ves. 48 ; Ramsbottom v. Wallis 
 (1835), 5 L. J. (N. S.) Ch. 92; 
 Henley v. Stone (18i0), 3 Beav. 
 355. 
 
 (r) Anon. (1682), 1 Vera. 45 ; 
 Mayer v. Murray (1878), 47 L. J. 
 Ch.' 605; 8 Ch. D. 424. See 
 Parkinson v. Hanbury (1866), 36 
 L. J. Ch. 292 ; L. K. 2 H. L. 1 ; 
 National Bank of Australasia v. 
 United Hand in Hand and Band of 
 Hope Co. (1879), 4 App. Cas. 391. 
 
 (») Marshall v. Cave (1824), 3 
 L. J. (O. S.) Ch. 57; Truhck v. 
 Robey (1846), 15 L. J. Ch. 343 ; 15 
 
 Sim. 265. See Bright v. Campbell 
 (1885), 54 L. J. Ch. 1077. 
 
 (t) County of Gloucester Bk. v. 
 Rudry Merthyr Steam and House 
 Coal Coll. (1895), 64 L. J. Ch. 451 ; 
 [18»5] 1 Ch. 629. 
 
 (k) Shephard v. BUM (1819), 4 
 Madd. 254 ; Scholefield v. Ingham 
 (1838), C. P. Coop. 477. 
 
 (x) Scholefield v. Ingham (1838), 
 C. P. Coop. 477 ; Horloek v. Smith 
 (1844), 1 Coll. 287. 
 
 (y) Binningtonv. Harwood (1823), 
 T. & R. 477. 
 
 (z) Davis v. May (1815), 19 Ves. 
 383 ; Latter v. Dashwood (1834), 3 
 L. J. Ch. 149 ; 6 Sim. 462. 
 
 (a) Wilson v. Metcalfe (1826), 1 
 Russ. 530. 
 
MORTGAGE. 125 
 
 After the mortgagee has been repaid in full, rests are made as of 
 course, and without any direction in the order, upon his subsequent 
 receipts (6). 
 
 As a general rule, the account is taken upon the same footing in Ertra- 
 foreclosure or redemption actions, but although the mortgagor's ordinary- 
 right to redeem is well established, he is still a suppliant in the redemption 
 eyes of a Court of Equity, and according to the established rule, as actions. 
 he seeks equity he must do equity, and this leads to some impor- 
 tant results. Thus a mortgagor coming to redeem must pay all 
 the arrears of interest due, and not merely six years' arrears (c). 
 And the Court has investigated the title of mortgagees to receive 
 payments on account of the principal money due, and refused to 
 make one of two mortgagees (who were trustees) liable in respect 
 of a payment to the other, although the payment would have been 
 a valid payment in law as being made to one of two joint 
 creditors (d). So a mortgagor seeking to recover his property has 
 only been allowed to do so upon the terms of repaying the amount 
 advanced and interest, although the mortgagee could not have 
 maintained an action by reason of the invalidity of his security (e). 
 
 RUSSEL v. RUSSEL. (1783) [ 48 ] 
 
 [1 Bro. Ch. Cas. 269; 2 Wh. & T. L. C. 76, 7th ed.J 
 
 A person who subsequently became bankrupt, de- 
 posited a lease with the plaintiff, and at the same time 
 promised to execute an assignment of the lease when- 
 ever required to do so. The assignees of the bankrupt 
 sold the premises leased to persons who had notice of the 
 plaintiff's title. The Lords Commissioners (Lord Lough- 
 borough, Ch. J., and Ashhurst, J.) established the title 
 of the plaintiff as against the assignees of the bankrupt 
 and the persons claiming under them with notice, and 
 
 (b) Ashworlh v. Lord (1887), 57 40 L. J. Ch. 338 ; L. E. 6 Ch. 
 
 L. J. Ch. 230 ; 36 Ch. D. 545. 478. 
 
 («) Re Lloyd, Lloyd v. Lloyd (e) Bromley v. Holland (1802), 7 
 
 (1902), 72 L. J. Ch. 78 ; [1903] 1 Ves. 3 ; Lodge v. National Union 
 
 Ch 385. Investment Co. (1906), 76 L.J. Ch. 
 
 id) Powell v. BrodJiurst (1901), 70 187 ; [1907] 1 Ch. 300. See Marn- 
 
 L. J. Ch. 587 ; [1902] 2 Ch. 160. field (Earl) v. Ogle ^855), 24 L. J. 
 
 See Richardson v. lounge (1871), Ch. 450 ; 7 De G. M. & G. 181. 
 
126 
 
 LEADING CASES IN EQUITY. 
 
 Deposit. 
 
 What deeds. 
 
 Form of 
 mortgage. 
 
 directed an issue to try the fact. The jury found that the 
 lease was deposited as a security, and Lord Thurlow, 
 L.C., confirmed this decision, and ordered that the lease 
 should be sold, and the plaintiff paid his money. 
 
 The first essential to the validity of the mortgage is that the 
 deeds should be actually deposited with the mortgagee, failing 
 this there must be evidence in writing sufficient to satisfy the 
 Statute of Frauds (/). Where there has been an actual deposit of 
 the deeds, the security may be extended by parol to include future 
 advances although no stipulation to that effect was made at the 
 date when the deeds were originally deposited (g). But where a 
 legal mortgage has been executed, and the deeds handed to the 
 mortgagee, a charge for further advances cannot be created without 
 writing (A). 
 
 It is not essential to the validity of an equitable mortgage by 
 deposit that all the deeds should be handed over ; if the documents 
 deposited are material documents, that is sufficient (i). 
 
 No form is necessary to create an equitable mortgage, and where 
 deeds are handed over to enable a legal mortgage to be executed, an 
 equitable charge for the money advanced is thereby created, unless it 
 appear to have been the intention of the parties that no charge should 
 be created until a formal document was executed (k). The Court will 
 grant specific performance by directing the execution of a legal 
 mortgage, unless it appear to have been the intention of the parties 
 that a formal deed should not be executed (I), and will restrain the 
 mortgagor from parting with the legal estate (m). Where the 
 mortgagor has agreed to execute a legal mortgage, the mortgagee 
 is entitled to have a power of sale inserted (»), but he is not entitled 
 to have a clause inserted excluding the operation of sect. 17 of the 
 
 (/) Fecforv. Thilpott (1823), 12 
 Price, 197; Kebell v. Philpot (1838), 
 7 L. J. Ch. 237 ; Fenwiek v. Putts 
 (1856), 8 De G. M. & G. 506 ; 
 Exp. Broderick (1887), 56 L. J. 
 Q. B. 635; 18 Q. B. D. 766. 
 
 (g) Exp. Mountfort (1808), 14 
 Ves. 606; Exp. Langston (1810), 
 17Vea. 227; Edev. Enowles (1843), 
 2 Y. & C. Ch. 172. 
 
 (A) Erp. Hooper (1815), 19 Ves. 
 477 ; 1 Mcr. 7. 
 
 (i) Goodwin v. Waghorn (1835), 
 4 L. J. Ch. 172; Locon v. Allen 
 (1856), 26 L. J. Ch. 18 ; 3 Drew. 
 579. 
 
 (k) Edge v. Worthing ton (1786), 
 1 Cox, 211 ; Keys v. Williams 
 (1838), 7 L. J. Ex. Eq. 59; 3 T. 
 & C. Ex. 55; Lloyd v. Attu-ood 
 (18i9), 29 L. J. Ch. 97; 3 De G. 
 & J. 614. 
 
 (I) Sporle v. Whatman (1855), 24 
 L. J. Ch. 789; 20 Beav. 607; 
 Matthews v. Goodday (1861), 31 
 L. J. Ch. 282. 
 
 (»«) London and County Bank v. 
 Leu-is (1882), 21 Ch. D. 490. 
 
 («) Hermann v. Hodges (1873), 
 43 L.J. Ch 192; L. B,. 16 Eq. 
 18 ; York Union Bkg. Co. v. Artley 
 (1879), 11 Ch. D. 205. 
 
MORTGAGE. 127 
 
 Conveyancing and Law of Property Act, 1881, so as to be entitled 
 to consolidate (o). 
 
 Formerly, a mortgagee by deposit could only enforce bis security Remedy of 
 by foreclosure (p), but where, as in the principal case, there was a "'ortgagee 
 contract to execute a legal mortgage, he had an alternative remedy " 
 by sale (q). But the Court may now order a sale of mortgaged 
 property in proceedings either for redemption or for foreclosure (r). 
 
 Where a mortgage is created by a deposit of title deeds, the only Bemedy of 
 remedy of the mortgagor to recover his deeds is an action for mortgagor, 
 redemption, with the ancillary right of having the deeds handed 
 over to him upon depositing in Court the amount of principal and 
 interest and a further sum to secure any additional sums which 
 may be due for costs or other contingent liabilities (s). 
 
 In the principal case the deposit was of deeds relating to lease- To what 
 holds. A deposit of the copy of the court roll will create an ? r(v j^ r y . 
 equitable mortgage of the copyholds to which it relates (t). A applicable, 
 purchaser of land, before conveyance, may create an equitable 
 mortgage, valid to the extent to which he has paid his purchase- 
 money, by depositing the contract for sale (u). 
 
 Notice. 
 
 JACKSON v. ROWE. (1828) [491 
 
 [4 Euss. 514; further proceedings, (1830) 9 L. J. (0. S.) Ch. 32.] 
 
 To establish a plea of a purchase for value without 
 notice it must be shown that both at the date when the 
 conveyance was executed, and the purchase-money was 
 
 (o) Farmer v. Pitt (1902), 71 case was determined expressly on 
 
 L. J. Ch. 5(10 ; [1902] 1 Ch. 954. the ground that the appellants 
 
 (p) Backhouse v. Charlton (1878), were mortgagees by deposit. 
 
 8 Ch. D. 444. (t) Exp. Warner (1812), 19 Ves. 
 
 (7) York Union Bkg. Co. y.Artley 202; Whitbread v. Jordan (1835), 
 
 (1879) 11 Ch. D. 205. 4 L. J. Ex. Eq. 48 ; 1 T. & C. Ex. 
 
 (r) Conveyancing and Law of 303. 
 
 Property Act, 1»81 (44 & Vict. (») Goodwin v. Waglwrn (1835), 
 
 c. 41), s. 25. 4 L. J. (N. S.) Ch. 172. See Rose 
 
 (s) Bank of New S. Wales v. v. Watson (1864), 33 L. J. Ch. 
 
 O'Connor (1889), 58 L. J. P. C. 385; 10 H. L. C. 672 ; Whitbread 
 
 82 ; 14 App. Cas. 273. The # Co. v. Watt (1902), 71 L. J. Ch. 
 
 student should observe that this 424 ; [1902] 1 Ch. 835. 
 
128 
 
 LEADING OASES IN EQUITY. 
 
 Legal rights. 
 
 Original or 
 concurrent 
 and auxiliary 
 jurisdiction. 
 
 Limits of 
 doctrine. 
 
 paid, the party had no notice of the fact with which it 
 is sought to fix him with notice. 
 
 The cases usually referred to as leading cases upon the subject 
 are Bassett v. Nosworthy (1673), Eep. temp. Finch, 102 ; 2 Wh. & T. 
 L. C. 150, 7th ed. ; and Le Neve v. Le Neve (1747), Ambl. 436 ; 2 
 Wh. & T. L. 0. 175, 7th ed. 
 
 The main question was decided in the principal case as a point of 
 pleading, but allegation and proof were at that date correlative 
 terms. 
 
 Courts of Common Law did not recognize the doctrine of notice, 
 except so far as it adopted the rules of the law merchant which 
 allowed the title of a transferee of a negotiable instrument to be 
 impeached upon the ground that he had notice of the infixmity of 
 his transferor's title. In Courts of Equity, the holder of the legal 
 estate was entitled to retain it, unless the party impeaching his 
 title could show a better equity, for where the equities are equal, 
 the law prevails (x). 
 
 Where the Court of Chancery possessed an original or concurrent 
 jurisdiction over the subject-matter of a suit, a plea that the defen- 
 dant was a purchaser for value without notice afforded no answer 
 to any incidental or consequential order made in the suit, unless 
 the plea would have afforded a complete answer to the whole suit ; 
 but where the jurisdiction was auxiliary, in the sense that proceed- 
 ings for the main cause of action could only be maintained in 
 another Court, or being a matter over which the Court of Chancery 
 had concurrent jurisdiction, proceedings for the main cause of 
 action were in fact instituted in another Court, the plea afforded a 
 complete answer. But this is a, refinement which it is no longer 
 necessary to consider by reason of the Judicature Act, 1873. At 
 the present day if the plea is not an answer to the entire action, it 
 is not an answer to any part of it (y). 
 
 The doctrine only applies where it is sought to take away from a 
 party a proprietary right which he possesses (2). Accordingly it is 
 not available in a suit to have the priorities of mortgages ascer- 
 tained and declared (a). 
 
 (x) Peacock v. Burt (1834), 4 
 L. J. Ch. 33 : Ncuman v. Newman 
 (1886), 54 L. J. Ch. 598 ; 28 Ch. D. 
 674 ; Taylor v. Russell (1892), 61 
 L. J. Ch. 657 ; [1892] A. C. 244. 
 See Bates v. Brothers (1854), 23 
 L. J. Ch. 7S2 ; 2 Sm. & G. 509 ; 
 Cioutte v. Storey (1910), 80 L. J. 
 Ch. 193; [1911] 1 Ch. 18. 
 
 (3/) Ind, Coope $ Co. v. Emmer- 
 son (1887), 56 L. J. Ch. 989; 12 
 App. Cae. 300. 
 
 (z) Barnard v. Eunler (1856), 2 
 Jur. N. S. 1213 ; Brandon v. 
 Brandon (1856), 7 Le G. M. & G. 
 365. 
 
 (a) Phillips v. Phillips (1862), 31 
 L. J. Ch. 32 1 ; 4 De G. P. & J. 208. 
 
NOTICE. 129 
 
 Money constitutes value for the application of the equitable rule Purchase for 
 that the Court will not take away a benefit from a purchaser for value - 
 value without notice, but any other valuable consideration is 
 sufficient (i), and it is not necessary that the party who conveys 
 the legal estate should receive any benefit from the consideration (c). 
 Proof of payment of the purchase-money does not shift the burden 
 of proof, but notice must also be negatived (d). 
 
 The giving of the consideration need not be contemporaneous Time for 
 with the acquisition of the legal estate, and where a man has bond ac< l ulrln S' 
 fide paid money without notice of any other title, although at the 
 time of the payment an equitable title only is conveyed to him, he 
 may afterwards perfect his title to make it accord with the terms 
 of his original bargain, if he can acquire the legal estate, notwith- 
 standing that between the original payment of his purchase-money 
 and the getting in of the legal estate he has notice of some prior 
 dealing inconsistent with the good faith of the dealing with himself, 
 and this whether he acquires the legal estate for value or gratui- 
 tously (f). If the legal estate be outstanding in a, trustee, the more 
 recent cases have established the following qualification upon the 
 rule just stated, namely, that the acquisition of the legal estate 
 and the payment of the purchase-money must be contemporaneous, 
 and the money paid and the conveyance taken without notice of a 
 prior equity (/). 
 
 A purchaser without notice is protected, although he purchased Purchase 
 from a person who had notice {g). And a purchaser with notice without 
 may shelter himself under the title of the person from whom he puro haser 
 purchased, if the latter could successfully raise this defence (A) ; with notice, 
 unless the ultimate purchaser is a trustee who is repurchasing for Purchase with 
 
 his own benefit trust property, which in his hands becomes charged notlc jf trom 
 
 r r •" . ° purchaser 
 
 with the original trust (i). And the plea is no answer to an action -without 
 
 notice. 
 
 (J) Molony v. Kernan (1842), 2 (/) Pitcher v. Rawlins (1872), 41 
 
 Dr. & War. 31 ; Dilke* v. Broad- L. J. Ch. 485 ; L. R. 7 Ch. 259 ; 
 
 mead (1861), 30 L. J. Ch. 268; 2 Maxfieldv. Burton (1873), 43 L. J. 
 
 De G. P. & J. 566 ; Taylor v. Lon- Ch. 46 ; L. R. 17 Eq. 15. 
 
 don and County Bank (lyOl), 70 (g) Harrison v. Forth (1695), 
 
 L. J. Ch. 477 ; [1901] 2 Ch. 231. Prec. Ch. 51. 
 
 (c) Aldborough (Earl) v. Trye (h) Sweet v. Southcote (1786), 2 
 (1840), 7 CI. & F. 436; Taylor r, Bro. C. C. 66; M' Queen v. Far- 
 Rmsell (1892), 61 L.J. Ch. 657; quhar (1805), 11 Ves. 467 ; Barrow'* 
 [1892] A. C. 244. Case (1880), 49 L. J. Ch. 498 ; 14 
 
 (d) Parwell, L.J., Wilkes v. Ch. D. 432; Wilkrs i. Spooner 
 Spooner (1911), 70 L.J. K. B. at (1911). 80 L. J. K. B. 1107; 
 p. 1115 ; [1911] 2 K. B. at p. 486. [1911] 2 K. B. 473. 
 
 (e) Marsh v. Lee (1671), 2 Vent. (i) Boveyv. Smith(l682), 1 Vern. 
 337; ante, p. 109; Taylor v . Sun-ell 60, 84, 144. See Deloes v. Gray 
 (1892), 61 L.J. Ch. 657; [1892] (1902), 71 L. J. Ch. 808; [1902] 
 A. C. 244. 2 Ch. 606. 
 
 R. K 
 
130 LEADING CASES IN EQUITY. 
 
 by a vendor to recover his property from, a party who has defrauded 
 him, after a sale and repurchase from an innocent third party (k). 
 
 [50] In re COUSINS' TRUSTS. (1886) 
 
 [55 L. J. Ch. 662 ; 31 Ch. D. 671.] 
 
 In this case a solicitor had acted in that capacity to a 
 mortgagor and to successive mortgagees, and a question 
 arose how far, since the passing of sect. 3 of the Con- 
 veyancing Act, 1882, the Court would impute to a client 
 notice pf a fact known to his solicitor respecting the 
 existence of a prior mortgage. Chitty, J., held that to 
 fix a client with notice of facte within the knowledge of 
 his solicitor the following circumstances must co-exist: — 
 
 (1) The matter must be in the same transaction; 
 
 (2) The matter must come to the solicitor's knowledge; 
 
 (3) The matter must come to the knowledge of the 
 
 solicitor as such, i.e., as solicitor for the client. 
 
 Conveyancing The material part of sect. 3 of the Conveyancing Act, 1882, is in 
 Act, 1882, these terms : — 
 
 " (1) A purchaser shall not be prejudicially affected by notice of 
 any instrument, fact, or thing unless — 
 
 " (i) It is within his own knowledge, or would have 
 come to his knowledge if such inquiries and inspections 
 had been made as ought reasonably to have been made by 
 him; or 
 
 "(ii) In the same transaction with respect to which a 
 question of notice to the purchaser arises, it has come to 
 the knowledge of his counsel, as such, or of his solicitor 
 or other agent, as such, or would have come to the know- 
 ledge of his solicitor, or other agent, as such, if such 
 inquiries and inspections had been made as ought reason- 
 ably to have been made by the solicitor or other agent. 
 " (2) This section shall not exempt a purchaser from any liability 
 under, or any obligation to perform or observe, any 
 covenant, condition, provision or restriction contained in 
 
 (k) Jessel, M.E., Barrow's Case (1880), 49 L. J. Ch. 498 ; 14 Ch. D. 445. 
 
 ». 3. 
 
NOTICE. 131 
 
 any instrument under which his title is derived, mediately 
 or immediately ; and such liability or obligation may be 
 enforced in the same manner and to the same extent as if 
 this section had not been enacted. 
 "(3) A purchaser shall not, by reason of anything in this 
 section, be affected by notice in any case where he would not 
 have been so affected if this section had not been enacted. 
 " (4) This section applies to purchases made either before or 
 
 after the commencement of this Act." 
 The student will observe that the section deals with notice in 
 three aspects. 
 
 Where matters are brought to the attention of a party he is said Actual notioe. 
 to have actual notice (I). 
 
 "Where a party would become acquainted with matters as a result Constructive 
 of proper inquiries he is said to have constructive notice of them (m). n0 ^ lce - 
 To employ a colloquialism — a man is not permitted to shut his 
 eyes, and say, "I see nothing." But a party is not fixed with 
 constructive notice where a fraud has been practised, for a fraudu- 
 lent person conceals his infamy, and a presumption arises that 
 inquiry would have been without result (n). 
 
 There is a third kind of notice sometimes, but inaccurately, termed Imputed 
 constructive notice, which the law imputes to a party, and which is notlce - 
 therefore properly termed imputed notice. It was this form of 
 notice which was in question in the principal case. Imputed notice 
 is of two kinds. The agent may know the particular fact, or he 
 would have acquired knowledge of the fact, if he had made proper 
 inquiries (o). 
 
 It has been said, that the section ' ' really does no more than state Effect of 
 the law as it was before, but its negative form shows that a restriction statute, 
 rather than an extension of the doctrine of notice was intended by 
 the Legislature "(p). In substance, every word and phrase in the 
 section can be justified by reference to the preceding decisions, but 
 a change has grown up in the application of the principles to the 
 facts of the case, owing to a change in the practice. In 1882, 
 complicated issues of fact were still being tried in the Chancery 
 
 (Z) See Parker v. Brooke (1804), Williams (1870), 39 L. J. Ch. 560 ; 
 
 9 Ves. 583. L. R. 9 Eq. 678 ; Nat. Prov. Bk. 
 
 (m) See Patnwnv. Barland (1881), v. Jack-ion (1886), 33 Ch. D. 1. 
 
 50 L. J. Ch. 642; 17 Ch. D. 353; (o) Per Lord Chelmsford, L.C., 
 
 Kettlewell v. Watson (1884), 53 Espin v. Pemberton (1859). 28 L. J. 
 
 L. J. Ch. 717; 26 Ch. D. 501; Ch. 311; 3 De G. & J. 547, at 
 
 Oliver v. Einton (1899), 68 L. J. p. 554. 
 
 Ch. 583; [1899] 2 Ch. 264. (p) Per cur. Bailey v. Barnes 
 
 («) Kmnedu v. Green (1834), 3 (1893), 63 L. J. Ch. 73; [1894] 1 
 
 M. & K. 699. See Carter v. Ch. 25, at p. 35. 
 
 k2 
 
132 
 
 LEADING CASES IN EQUITY. 
 
 Duty of 
 inquiry. 
 
 Superior 
 diligence. 
 
 Division upon evidence by affidavit and depositions, perhaps the 
 majority of cases were being so tried; but at the present day this 
 method of trying issues of fact is practically obsolete, having been 
 supplanted by oral testimony. In practice, it will be found that 
 the Court will refuse to impute notice to a party apparently honest 
 and truthful against his denial, unless there has been a wilful or 
 improper abstention from inquiry. But the passage before quoted 
 requires to be supplemented in two particulars to which it was 
 unnecessary to advert in the case in which that passage occurs, and 
 they are, that the notice must be acquired in the same transaction, 
 and that the agent must have been acting as such for the party 
 whom it is sought to fix with notice. These two matters are dealt 
 with in the principal case, where it is shown that this provision 
 overrides earlier cases — as a matter of fact, it restores the law 
 respecting notice as it was administered in the time of Lord 
 Hardwicke. 
 
 It is beyond the scope of this treatise to discuss at length the 
 limits within which inquiry is obligatory to avoid the effect of 
 notice. A purchaser of freehold lands should require a forty years' 
 title (j). An intending tenant cannot safely waive the production 
 of his landlord's title (r). A purchaser of land is fixed with notice 
 of the title of the persons whom he finds in possession of land (s), 
 but not of the title of a person under whom the occupant claims, 
 for the latter does not necessarily know that person's title, although 
 he ought to know his own (<). Upon a similar principle, where a 
 party has notice of a document which may or may not affect the 
 title, he may accept as true the representation that it relates only 
 to other property, and is not fixed with notice of the contents of 
 the instrument (u), although it is his duty generally to inspect all 
 documents of title relating to the property, even although they will 
 not be handed over upon completion (x). But where the purchase- 
 money was trifling, a purchaser was held to be justified in not 
 incurring the expense of a formal investigation of title (y). 
 
 A purchaser is entitled to use greater diligence than the law 
 
 (q) Be Cox $ Neve's Contract, 
 [1891] 2 Ch. 230 ; Oliver v. Hinton 
 (1899), 68 L. J. Ch. 583; [1899] 
 2 Ch. 264. 
 
 (r) Patman v. Harland (1881), 50 
 L. J. Ch. 642; 17 Ch. U. 353. 
 
 (») Miles v. Langley (1829), 1 
 Euss. & M. 39; affd. (1831), 2 
 Rues. & M. 626 ; Bailey v. Richard- 
 son (1852), 9 Hare, 734; Trmiiad 
 Asphalt Co. v. Coryat (1896), 65 
 L. J. P. C. 100 ; [1896] A. C. 587. 
 
 (0 Sunt v. Zuclc (1902), 71 
 L. J. Ch. 239; [1902] 1 Ch. 428. 
 
 («) Jones v. Smith (1841), 11 
 L. J. Ch. 83 ; 1 Hare, 43 ; affd. 
 (1843), 12 L. J. Ch. 381 ; 1 Ph. 
 244. 
 
 (x) Oliver v. Hinton (1899), 68 
 L. J. Ch. 583 ; [1899] 2 Ch. 264. 
 
 (y) Kettlewell v. Watson (1882), 
 61 L. J. Ch. 281 ; 21 Ch. D. 
 685 ; revd. on other grounds, 53 
 L. J. Ch. 717 ; 26 Ch. D. 501. 
 
NOTICE. 133 
 
 requires, and may object to complete upon discovering matters of 
 which he would not be deemed to have notice, even if he had 
 abstained from making inquiries (2). 
 
 It is the duty of a vendor to disclose to the purchaser, prior to Notice 
 entering into the contract, all matters which affect the title of the between 
 property, under penalty of having the contract treated as invalid im ™etua,te 
 if they are material (a). 
 
 There is a matter which is frequently discussed in relation to Negligence 
 notice, and that is, fixing the rights of the parties with reference ^th respect 
 to the possession of title-deeds. It is the duty of a purchaser to ° 1 e ee s " 
 obtain production, and, if possible, possession of the title-deeds, 
 and if he fails to do so, he may find himself postponed in interest, 
 or ousted, by one who has dealt with the vendor upon the footing 
 that the paper title is the true title (i). But a person may accept 
 as true the representation that all the deeds relating to the property 
 are being handed over, unless there are circumstances to awaken 
 his suspicions (c) ; similarly handing over title-deeds, under circum- 
 stances of fraud or gross negligence, may lead to the creation of 
 estates to which the owner must give effect (d) ; but trustees may 
 permit one of their number to retain possession of title-deeds 
 relating to the trust (e). Where trustees fail, without proper 
 excuse, to obtain possession of title-deeds, the beneficiaries will be 
 postponed to a purchaser for value without notice (/); but where 
 trustees, having obtained possession of title-deeds, wrongfully part 
 with them, the title of the beneficiaries will not be so displaced ( g). 
 The omission to obtain title-deeds will postpone a prior equitable 
 title to another, where the circumstances of negligence would not 
 be sufficient to deprive the holder of the legal estate of his 
 priority (h). 
 
 (z) Life Interest and Reversionary (1872), 42 L. J. Ch. 210 ; L. B. 8 
 
 Securities Corp. v. Sand in Hand Ch. 155. 
 
 Fire $ Life Insce. (1898), 67 L. J. (d\ Waldron v. Sloper (1852), 1 
 
 Ch. 548 ; [1898] 2 Ch. 230. See Drew. 193 ; Northern Cos. of Eng- 
 
 Re Cox $ Neve's Contract, [1891] 2 land Fire Insce. v. Whipp (1884), 
 
 Ch. 109. 53 L. J. Ch. 629 ; 26 Ch. D. 
 
 (a) CabalUro v. Senty (1874), 43 482. 
 
 L. J. Ch. 635 ; L. B. 9 Ch. 447 ; {e) Taylor v. London St County 
 
 Reeve v. Berridge (1888), 57 L. J. Bk. (1901), 70 L. J. Ch. 477 ; 
 
 Q. B. 265; 20 Q. B. D. 523; [1901] 2 Ch. 231. See Re Sisson't 
 
 Molyneuxv.Hawtrey(190S),721 l .J. Trusts (1902), 72 L. J. Ch. 212; 
 
 K. B. 873 ; [1903] 2 K. B. 487. [1903] 1 Ch. 262. 
 
 (b) Collyer v. Finch (1856), 26 (/) Walker v. Zinom (1907), 76 
 I,. J. Ch. 65 ; 5 H. L. C. 905 ; L. J. Ch. 500 ; [1907] 2 Ch. 104. 
 Berwick § Co. v. Price (1905), 74 (g) Carrilt v. Real $ Personal 
 L. J. Ch. 249 ; [1905] 1 Ch. 632. Advance Co. (1889), 58 L. J. Ch. 
 
 (c) Frazer v. Jones (1846), 5 688 ; 42 Ch. D. 263. 
 
 Hare, 475 ; affd. (1848), 17 L. J. (h) Farrand v. Yorks. Bk. (1888), 
 
 Ch. 353 ; Dixon v. Mucklestone 58 L. J. Ch. 38 ; 40 Ch. D. 182. 
 
134 LEADING OASES IN EQUITY. 
 
 Partition. 
 
 [51] Re NORTON; NORTON v. NORTON. (1899) 
 
 [69 L. J. Ch. 31 ; (1900) 1 Ch. 101.] 
 
 The sale of lands in a partition action does not operate 
 as a conversion of the share of an infant, a party to a par- 
 tition action, although he joins in the application to the 
 Court to exercise its statutory power to order a sale of the 
 property to which the suit relates instead of making a 1 
 partition thereof. 
 
 Sale in lieu The history of the equitable jurisdiction to make a partition of 
 
 of partition. i an d s \tg& m co-ownership may be read by the curious in the 
 leading case of Agar v. Fairfax (i). The Court had no power to 
 order a sale, and in one case had to refuse relief against the award 
 of commissioners, who had allotted to the plaintiff the whole stack 
 of chimneys, all the fireplaces, the only staircase in the house, and 
 all the conveniences in the yard, which was the usual place for the 
 last named in those days (k). This is altered by the Partition Act, 
 1868, as amended by the Partition Act, 1878. By sect. 3 of the 
 earlier Act, a sale may be ordered in lieu of partition on the appli- 
 cation of any of the parties interested " if it appears to the Court 
 that, by reason of the nature of the property to which the suit 
 relates, or of the number of the parties interested or presumptively 
 interested therein, or of the absence or disability of some of those 
 parties, or of any other circumstance, a sale of the property and 
 distribution of the proceeds would be more beneficial for the parties 
 interested than a division of the property between or among them," 
 and the order may be made " notwithstanding the dissent or dis- 
 ability of any others of them." By soct. 4 " if the party or parties 
 interested individually or collectively, to the extent of one moiety 
 or upwards in the property " request a sale, the Court must direct 
 a sale " unless it sees good reason to the contrary." By sect. 5 the 
 Court may order a sale at the request of " any party," ..." unless 
 the other parties interested in the property, or some of them, 
 undertake to purchase the share of the party requesting a sale." 
 
 («) Agar v. Fairfax (1811), 17 (/c) Turner v. Morgan (1803), 8 
 
 Ves. 533 ; 1 Wh. & T. L. C. 192. Ves. 143. 
 
PARTITION. 135 
 
 These sections are three independent provisions ; tinder sect. 3 the 
 Court has a discretion, under sect. 4 it has none, unless there be 
 " good reason to the contrary." The effect of sect. 5 is to introduce 
 a fresh ground for the exercise of a new discretionary power ; it 
 does not enable the Court to compel the party requesting the sale 
 to sell his property to the others (I). 
 
 A person opposing a sale under sect. 4 must establish that " good << Good 
 reason " exists why a sale should not be decreed (m). The personal reason " for 
 convenience of a party opposing is not sufficient (»), but a person or( ji r Jj. 
 asking for a sale from motives of spite or ill-will is not entitled to 
 his order for sale (o). The Court is not bound to give effect to a 
 sentimental desire to preserve property in the family ( p). Depre- 
 ciation of income or of capital value affords no " good reason " for 
 refusing the order (q). 
 
 The Court of Chancery, now represented by the High Court, was Conversion 
 a Court of unlimited jurisdiction, and every order made in pur- ^y order 
 ported exercise of its jurisdiction is binding upon all parties who 
 can be affected by an order made in the particular proceedings. It 
 follows that if any order for the sale of land be made it effects a 
 conversion (r) ; and as equity looks upon that as done which it 
 orders to be done, the conversion is effected by the order for sale 
 and takes effect from the date when that order is made (s). In the 
 case of a sale where parties are not sui juris there is no conversion 
 by reason of the incorporation of sects. 23, 24 and 25 of the Settled 
 Estates Act, 1856, in the Partition Act, 1868 (t). "Where a party 
 asking for a sale is an infant there is no conversion, but the money 
 remains impressed with its character of land. That was decided by 
 the principal case. Where a married woman asks or concurs in 
 
 (I) Williams v. Games (1875), 44 D. 358. 
 
 L. J. Ch. 245; L. R. 10 Ch. 204; (q) Rome v. Gray (1877), 46 L.J. 
 
 Mrinkioater v. Rntcliffe (1875), 44 Ch. 279 ; 5 Ch. 1). 263 ; Porter v. 
 
 L. J. Ch. 605 ; L. R. 20 Eq. 52S ; Lopes C1377), 7 Ch. D. 358. 
 
 Pitt v. Jones (1880), 49 L. J. Ch. (r) Burgess v. Booth (1908), 78 
 
 795 ; 5 App. Gas. 651 ; Richardson L. J. Ch. 32 ; [1908] 2 Ch. 648 ; 
 
 v. Feary (1H88), 57 L. J. Ch. 1049; Fauntleroy v. Beebe (1911), 80 L. J. 
 
 39 Ch. JD. 45. Ch. 654 ; [1911] 2 Ch. 257. 
 
 (in) Pemberton v. Barnes (1871), (s) Re JJodson, Tales v. Morton 
 
 40 L. J. Ch. 675; L. R. 6 Ch. (1908), 77 L.J. Ch. 830; [1908] 
 685 ; Porter v. Lopes (1877), 7 Ch. 2 Ch. 638. See Re Morgan, Smith 
 D. 358. v. Mag (1900), 69 L. J. Ch. 735; 
 
 (n) Wilkinson v. Joberns (1873), [1900] 2 Ch. 474. 
 
 42 L. J. Ch. 663; L. R. 16 Eq. (t) Foster v. Foster (1876), 1 Ch. 
 
 14 ; Houghton v. Gibson (1877), 46 D. 588 (infant) ; Mildmay v. Quiche 
 
 L. J. Ch. 366. (1877), 46 L. J. Ch. 667 ; 6 Ch. D. 
 
 (o) Saxton v. Bartley (1879), 48 553 (married woman) ; Re Barker 
 
 L. J. Ch. 519. (1881), 50 L. J. Ch. 334; 17 Ch. 
 
 (p) Porter v. Lopes (1877), 7 Ch. D. 241 (lunatic). 
 
136 LEADING OASES IN EQUITY. 
 
 asking for a sale a conversion may be effected by her (w). In the 
 case of a lunatic an express direction is inserted in the order 
 authorizing the committee to request a sale that a conversion shall 
 not be effected (a;). 
 Praotioe. By sect. 34, sub-sect. 3, of the Judicature Act, 1873, actions 
 
 for partition or sale of real estates are assigned to the Chancery 
 Division of the High Court. By sect. 9 of the Partition Act, 
 1868, it is no longer necessary to make all persons interested in 
 the estate parties to the action ; two persons, one as plaintiff the 
 other as defendant, if entitled to different interests in the estate, 
 are sufficient to found jurisdiction. At the hearing inquiries are 
 directed as to the other parties interested, and they must be served 
 with notice of the judgment or order and may intervene. By 
 sect. 3 of the Partition Act, 1876, service of process, directed by 
 sect. 9 of the Act of 1868, may be dispensed with, " and, instead 
 thereof, direct advertisements .... calling upon parties interested 
 .... to come in and establish their claims " (y). By sect. 10 of 
 the Partition Act, 1876, "the Court may make such order as it 
 thinks just respecting costs up to the time of hearing " (z). Where 
 a sale is directed and infants are interested, they may be declared 
 to be trustees for the purchaser, and a person appointed under 
 sect. 33 of the Trustee Act, 1 893, to convey the property (a). 
 
 Penalties and Forfeitures. 
 
 [52] PEACHY v. SOMERSET (DUKE). (1724) 
 
 [1 Strange, 447 ; 2 Wh. & T. L. C. 250, 7th ed.] 
 
 SLOMAN v. WALTER. (1784) 
 [1 Bro. C. C. 418 ; 2 Wh. & T. L. C. 257, 7th ed.] 
 
 In the first case a copyholder took it upon himself to 
 grant a lease of his copyhold and committed acts of waste, 
 upon which the lord of the manor brought an action of 
 
 («) Wallace v. Greenwood (1880), 51 L. J. Ch. 944. 
 60 L. J. Ch. 289; 16 Ch. D. 362. (z) Ball v. Kemp- Welch (1880), 
 
 See Grange v. White (1881), 50 49 L. J. Ch. 528; 14 Ch. D. 512; 
 
 L. J. Ch. 620 : 18 Ch. D. 612. Richardson v. Feary (1888), 57 L. J. 
 
 (*) Re Pares, Lillingston v. Pares Ch. 1049 ; 39 Ch. D. 45. 
 (1879), 12 Ch. D. 333. (a) Davis v. Ingram (1897), 66 
 
 (y) Sacking v. Whalley (1882), L. J. Ch. 386 ; [1897] 1 Ch. 477. 
 
PENALTIES AND FORFEITURES. 137 
 
 ejectment at law, and Lord Macclesfield, L.C., refused 
 to relieve the adult plaintiff who had done these acts with 
 his eyes open, as money was not an adequate recompense. 
 In the second action the defendant sued for the penalty 
 of a bond conditioned to be void if the defendant in equity 
 permitted him to have the use of a certain room. Ac- 
 cording to the practice then in force the plaintiff in equity 
 showed cause Why an injunction restraining- the defen- 
 dant in equity from prosecuting 1 his legal remedy should 
 not be dissolved. Lord Thurlow, L.C., thought that the 
 penalty was only inserted for the purpose of securing the 
 observance of the contract, and continued the injunction 
 until the hearing of the cause, with a view to having the 
 damage actually sustained assessed. 
 
 In the first case there was some discussion whether the working 
 of an opened quarry, the lopping of trees, or the grubbing up of 
 hedges so as to destroy boundaries, was a forfeiture at the common 
 law (b), and the Lord Chancellor said that if it were there could be 
 no relief. 
 
 As regards the second case, it was one in which the defendant in 
 equity could probably have obtained specific performance (c), but 
 having elected to sue for a complete monetary compensation he 
 could not have that equitable remedy in addition (d). 
 
 The Courts of common law were always reluctant to give effect Leaning of 
 to a forfeiture, and in the construction of documents would adopt Courts 
 that interpretation which would avoid a forfeiture (e) ; and in forfeit,^ 
 matters of interpretation equity follows the law (/). And in one 
 case of a legacy conditional upon the precedent consent of the 
 trustees to the marriage of the legatee, the Court presumed that the 
 
 (b) See Doe v. Burlington (Earl) 286 ; General Accident Assce. Corp. 
 (1833), 3 L. J. K. B. 26 ; 5 B. & v. Mel (1902), 71 L. J. K. B. 236 ; 
 Ad. 507. [1902] 1 K. B. 377. 
 
 (c) Logan v. Wienholt (1833), 1 (e) Smith v. Clyfford (1787), 1 
 CI. & P. 611; Jones v. Heavens T. R. 738 ; Jerritt v. Weare (1817), 
 (1877), 4 Ch. D. 636; National 3 Pri. 575; Doe v. Stevens (1832), 
 Provincial Bank v. Marshall (1888), 1 L. J. K. B. 101 ; 3 B. & Ad. 
 58 L. J. Ch. 229; 40 Ch. D. 112. 299; Francis r. Minton (1867), 36 
 See French v. Macale (1842), 2 Dr. L. J. C. P. 201; L. E. 2 C. P. 
 & W. 269. 543. 
 
 Id) Sainter v. Ferguson (1849), ( f) Maxwell v. Ward (1824), 
 
 19 L. J. Ch. 170 ; 1 Mac. & G. M'Cl. 458. 
 
138 
 
 LEADING OASES IN EQUITY. 
 
 Breach of 
 condition 
 precedent. 
 
 Condition 
 against 
 litigating 
 will. 
 
 Breach of 
 covenant in 
 
 consent was given antecedently to the marriage, although there was 
 no distinct proof that it was so given (g). 
 
 It is " a common rule of the Court as to conditions precedent. 
 If the Court can put the parties in the same situation as if the 
 condition had been performed, it will never suffer a forfeiture to 
 attach " (h). A legacy given simpliciter to an executor is pre- 
 sumptively conditional on his proving the will, hut he may entitle 
 himself to the legacy by proving the will at any time, and litiga- 
 tion, which does not finally dispose of his right, is no bar (i). But 
 •where there is a condition precedent to the vesting of an estate or 
 interest, with a gift over, in the event of his failing to perform 
 the condition, to another, there can be no relief (7c). A similar 
 principle is applicable to covenants for renewal of leases. To 
 entitle himself to claim the renewal of a lease, the tenant must 
 have performed all conditions precedent, and this whether the 
 covenant be one entitling him to a single further term, or a cove- 
 nant for perpetual renewal (I). In the case of a lease for lives 
 renewable on notice given within a limited time after the death of 
 the cestui que vie, ignorance on the part of the lessee of the death 
 of the life does not excuse his failure to give the stipulated 
 notice (m). 
 
 Conditions have sometimes been inserted in wills providing that 
 a, person shall forfeit all benefits thereunder by litigating their 
 rights. The construction placed upon this condition is that it 
 applies only to frivolous and vexatious litigation, and does not 
 apply where the question raised is a matter of substance («). 
 
 Before the statutes to be mentioned applications were constantly 
 made to the Court to relieve lessees from forfeitures incurred by 
 reason of non-payment of rent, or breaches of other cove- 
 nants. Now upon a forfeiture for non-payment of rent relief 
 would be granted, for interest upon the arrear of rent -would be a 
 sufficient compensation for the breach ; but in the case of other 
 covenants, as a covenant to insure, or repair, relief would 
 
 (g) lie Birch (1853), 17 Beav. 358. 
 
 (A) Lord Thurlow, L.G., Taylor 
 v. Popham (1782), 1 Bro. C. C. 
 168; llollinrake v. Lister (1826), 
 
 1 Buss. 600. 
 
 (*) Reed v. Uevaijncs (1791), 2 
 Cox, 285. 
 
 (k) Me Zririx, Zcwix V. I.ficix 
 (1904), 73 L. J. Ch. 748; [1904] 
 
 2 Ch. 656. 
 
 (1) Job v. Bannister (1850), 2 K. 
 & J. 374 ; atfd. 26 L. J. Ch. 125 ; 
 Bogg v. Midland By. (1867), 36 
 
 L. J. Ch. 440; L. R. 4 Eq. 
 310; BastuiY. Bidwdl (1881), 18Ch. 
 D. 238; Nicholson v. Smith (1HS2), 
 62 L. J. Ch. 191 ; 22 Ch. D. 640. 
 
 (m) Maxwell v. Ward (1824), 
 M'Cl. 458 ; Barries v. Bryant 
 (1827), 4 Buss. 89. 
 
 («) Loyd v. SpilUt (1734), 3 P. 
 "VVtns. 344 ; rehearing (1710), 2 
 Atlc. 148; Adams v. Adams (1891), 
 61 L. J. Ch. 237; [1892] 1 Ch. 
 369. See Egg v. Levey (1847), 16 
 L. J. Ch. 509 ; 10 Beav. 444. 
 
PENALTIES AND FORFEITURES. 139 
 
 not be given, as the damage sustained was incapable of exact 
 assessment (o). 
 
 In the case of non-payment of rent, the Court in which the Statutory- 
 landlord brings his action for the recovery of the land based upon J e Ji e ^ a & a " 1Bt 
 this cause of forfeiture, may grant relief upon payment of the rent p avmen t f 
 due and in arrear, and all costs (p), either by staying proceedings rent. 
 before trial or upon a substantive application made within six 
 months after judgment recovered. This is by the joint effect of 
 sects. 210, 211, and 212 of the Common Law Procedure Act, 1852, 
 and sect. 1 of the Common Law Procedure Act, 1860. The lan- 
 guage of these sections is not uniform, but the earlier enactments 
 which they replace have been held to apply to a sub-lessee (g), 
 including a mortgagee by sub-demise (r), and by an equitable 
 extension of the statute, to a case where the landlord has resumed 
 possession of vacated premises without process (s). Relief may be 
 granted also under the provisions of sect. 4 of the Conveyancing 
 Act, 1892 (t). 
 
 Sect. 14 of the Conveyancing and Law of Property Act, 1881, Other 
 imposes restrictions upon the right of a landlord to recover posses- C0Tenan t 
 sion for breach of covenant. This section, in express terms, 
 excludes the statutory power to grant relief in the case of non- 
 payment of rent, and ' ' does not extend (i) to a covenant or condi- 
 tion against the assigning, underletting or parting with the 
 possession, or disposing of the land leased, or to a condition for 
 forfeiture on the bankruptcy of the lessee, or on the taking in 
 execution of the lessee's interest ; or (ii) in case of a mining lease, 
 to a covenant or condition for allowing the lessor to have access to 
 or inspect books, accounts, records, weighing machines or other 
 things, or to enter or inspect the mine or the workings thereof." 
 These have been modified as mentioned hereafter. As a condition 
 precedent to enforcing a forfeiture by action or otherwise for 
 breach of covenant or condition, the lessor must serve on the lessee 
 " a notice specifying the particular breach complained of, and 
 requiring the lessee to make compensation in money for the 
 
 (o) Bowser y. Colby (1841), 11 (r) Doed. Whitfield^. Hoe (1815), 
 
 L.J. Ch. 132; 1 Ha. 109; Nokes 3 Taunt. 402. 
 
 v. Gibbon (1856), 26 L. J. Ch. 433; (s) Howard V. Fanshawe (1895), 
 
 3 Drew. 681. 64 L. J. Ch. 666; [1895] 2 Ch. 
 
 (p) Croft v. London and County 581. 
 Bank (1885), 54 L.J. Q. B. 277; (0 Gray v. Bonsall (1904), 73 
 
 14 Q. B. D. 347. L. J. K. B. 515 ; [1904] 1 K. B. 
 
 (?) Doe v. Byron (1845), 14 L. J. 601 ; Humphreys v. Morten (1905), 
 
 C. P. 207 ; 1 C. B. 623. See Moore 74 L. J. Ch. 370 ; [1905] 1 Ch. 
 
 v. Smee (1907), 76 L. J. K. B. 658; 739. 
 [1907] 2 K. B. 8. 
 
140 LEADING CASES IN EQUITY. 
 
 breach " (u). The lessee is entitled to a reasonable time to remedy 
 the breach if it is capable of remedy. At any time before posses- 
 sion has been actually recovered (a;), the Court may, in a pending 
 action, or in independent proceedings, "grant or refuse relief, as 
 the Court, having regard to the conduct of the parties under the 
 foregoing provisions of this section, and to all the other circum- 
 stances, thinks fit, and in case of relief may grant it on such terms, 
 if any, as to costs, expenses, damages, compensation, penalty or 
 otherwise, including the granting of an injunction to restrain any 
 like breach in the future, as the Court, in the circumstances of 
 each case, thinks fit." The statute is not to be read as abrogating 
 the legal effect of covenants, or the liability of covenantors, and 
 relief will be refused where there is a deliberate breach or a wilful 
 or persistent neglect to perform a covenant (y). The title to relief, 
 and the terms upon which it is granted, depend upon the facts of each 
 particular case, and the decided cases can only afford an illustration 
 and never a conclusive ruling (z). It had been held that the lessor 
 could not recover from the lessee the costs incurred in respect of 
 the notice, but by sect. 2 of the Conveyancing Act, 1892, the 
 lessor may recover from the lessee " all reasonable costs and 
 expenses properly incurred by the lessor in the employment of 
 a solicitor and surveyor or valuer, or otherwise, in reference to 
 any breach giving rise to a right of re-entry or forfeiture which, 
 at the request of the lessee, is waived by the lessor by writing 
 under his hand, or from which the lessor is relieved, under 
 the provisions of the Conveyancing and Law of Property Act, 
 1881, or of this Act "(a). Sect. 5 of the Conveyancing Act, 
 1892, extends the power to grant relief to the case of an 
 agreement for a tenancy (lease or underlease) where specific 
 performance could be obtained (J). Sect. 4 of the same statute 
 
 («) Lock v. Pearce (1893), 62 Ch. 322; [1910] 1 Ch. 777; 
 
 L. J. Ch. 582; [1893] 2 Ch. 271; GrevUle v. Parker (1910), 79 
 
 Fletcher v. Nokes (1896), 66 L. J. P. C. 86; [1910] A. C. 
 
 L. J. Ch. 177; [1896] 1 Ch. 271; 335; Rose v. Spicer (1911), 80 
 
 Penton v. Barnett (1897), 67 L. J. K. B. 1011; [1911] 2 K. B. 
 
 %,. J. Q. B. 11; [1898] 2 Q. B. 234. 
 
 276; Horsey Estate Co. v. (a) See Rose v. Spicer (1911), 
 
 Steiger (1899), 68 L. J. Q. B. 80 L. J. K. B. 1011; [1911] 2 
 
 743; [1899] 2 Q. B. 79; Exp. K. B. 234. 
 
 Trustee, Re Riggs (1901), 70 L. J. (a) Nind v. Nineteenth Cen- 
 
 K. B. 541; [1901] 2 K. B. 16. tury Building Soc. (1894), 63 
 
 (x) Rogers v. Rice (1892), 61 L. J. Q. B. 636; [1894] 2 Q. B. 
 
 L. J. Ch. 573; [1892] 2 Ch. 170. 226. 
 
 (y) Eastern telegraph Co. v. (6) Greville v. Parker (1910), 
 
 Dent (1899), 68 L. J. Q. B. 564; 79 L. J. P. C. 86; [1910] A. C. 
 
 [1899] 1 Q. B. 835; Matthews 335. 
 v. Hmallwood (1910), 79 L. J. 
 
PENALTIES AND FORFEITURES. 141 
 
 empowers tie Court to grant relief to an underlessee. Where 
 relief is granted to a lessee, the effect is to nullify the forfeiture, 
 and restore matters to their original footing (c). Where relief is 
 granted to an underlessee, the break in interest prevents this course, 
 and the underlessee must accept a new lease from the lessor, the 
 terms of which must be fixed by reference to the circumstances 
 existing at the date when relief is granted (d), and may be given 
 in cases where no relief could be granted to the original lessee (c). 
 Except ■where the lease applies to agricultural or pastoral land, 
 mines or minerals, a public-house or beershop, a furnished house, or 
 " property with respect to which the personal qualifications of the 
 tenant for the preservation of the value or character of the property, 
 or on the ground of neighbourhood to the lessor, or to any person 
 holding under him," an action to enforce a forfeiture incurred by 
 reason of the bankruptcy of the lessee, or the taking of his interest 
 in execution cannot be brought without notice until the expiration 
 of one year from the date of the bankruptcy or taking in execution, 
 and if sold within such year then the exception contained in sect. 14 
 of the Conveyancing and Law of Property Act, 1881, ceases to be 
 applicable (/). This is by force of sect. 1, sub-sects. 2 and 3, of 
 the Conveyancing Act, 1892. 
 
 A money payment in the nature of a fine can no longer be T_,i oenoe to 
 exacted for a licence or consent by the lessor to the assignment, aasigu. 
 underletting or parting with the possession of the demised property 
 unless there is an express provision in that behalf, or unless the 
 sum demanded be for any legal or other expense incurred in 
 relation to such licence or consent according to the provisions of 
 the Conveyancing Act, 1892, s. 3 (<?). 
 
 The Courts of common law were invested by statute with power Statutory 
 to relieve against the penalties of bonds when sued upon there, relief against 
 In the case of a common money bond, by 4 & 5 Anne, c. 16, the P en » ltles of 
 plaintiff can only recover the amount actually due and interest, if 
 any, and his costs of action. In the case of bonds with conditions 
 judgment goes for the entire penalty, the plaintiff recovering from 
 time to time the damage suffered by him by reason of breach 
 of the conditions, whether the breach occurs before or after 
 judgment (h). 
 
 (o) Bendy v. Evans (1909), 79 L. J. Ch. 433; [1902] A. C. 187. 
 
 L. J. K. B. 121; [1910] 1 K. B. (g) Re Cosh's Cont. (1896), 
 
 263. ~ 66 L. J. Ch. 28; [1897] 1 Ch. 9; 
 
 (d) Ewart v. Fryer (1900), 70 Waite v. Jennings (1906), 75 
 L. J. Ch. 138; [1901] 1 Ch. 499. L. J. K. B. 542; [1906] 2 K. B. 
 
 (e) Cholmeley's School v. 11 ; West v. Gwynne (1911), 80 
 Sewell (1894), 63 L. J. Q. B. L. J. Ch. 578; [1911] 2 Ch. 1. 
 820; [1894] 2'Q.B. 906. (h) Leake, Contracts, pp. 97, 
 
 (/) Fryer v. Ewart (1902), 71 797. 
 
142 
 
 LEADING OASES IN EQUITY. 
 
 Interest, &o. 
 
 beyond 
 
 penalty. 
 
 In the exercise of the statutory power to relieve against penalties 
 the Courts of common law never carried the interest or the damages 
 beyond the penalty of the bond(i'). Courts of equity did not 
 entertain money claims, and so far as the Court based its relief 
 upon the basis of a common law demand, as the claim of a creditor 
 ■ in the administration of assets, it followed the same rule (7c). But 
 where the bond was given for a collateral purpose, as to secure 
 money lent upon mortgage, the Court assessed the total amount 
 payable although it exceeded the penalty of the bond (I) ; or if 
 there was some special equity, as where the obligor, or person in 
 fact liable under the bond, had obtained an injunction restraining 
 proceedings on the bond (m). 
 
 Power. 
 
 [53] In re MARSDEN'S TRUST. (1859) 
 
 [28 L. J. Ch. 906 ; 4 Drew. 594.] 
 
 A married woman, in exercise of a power of appoint- 
 ment contained in the settlement executed upon her mar- 
 riage, appointed the whole to one of the children of the 
 marriage (a daughter) to the exclusion of the others, which 
 the power entitled her to do. The appointment was made 
 in the hope that the daughter would provide for her 
 father (the husband of the appointor), which was the 
 ulterior motive inducing the mother to thus exercise the 
 power. The daughter was no party to any understanding, 
 and was in fact ignorant that any appointment had been 
 made in her favour until after her mother's death. Kin- 
 dersley, V.-C, held that the appointment was void, as a 
 
 (i) Branscombe v. Scarbrough 
 (1844), 13 L. J. Q. B. 247; 6 
 Q. B. 13. 
 
 (K) Walters v. Meredith 
 (1838), 3 Y. & C. Ex. 264; 
 Hatton v. Harris (1892), 62 L. J. 
 P. C. 24; [1802] A. C. 547. See 
 Campbell v. Graham (1831), 1 
 
 Russ. & M. 453; Mathews v. 
 Keble (1868), 37 L. J. Ch. 657; 
 L. R. 3 Ch. 691. 
 
 (I) Clarke v. Abingdon {Lord) 
 (1810), 17 Ves. 106. 
 
 (m) Grant v. Grant (1827), 5 
 L. J. (0. S.) Ch. 142; 3 Russ. 
 598; (1830), 3 Sim. 340. 
 
POWER. 143 
 
 fraud upon the power. In the course of his judgment he 
 said: " The case comes within that class of cases in which 
 the Court says there has been a fraud upon the power, 
 inasmuch as it has been exercised in such a way as to 
 defeat the purpose for which it was given. In some of 
 the cases which have been cited, there has been a direct 
 bargain between the donee of the power and the person 
 in whose favour it is exercised, under which the donee 
 was himself to derive a benefit; and certainly there has 
 been nothing of that kind in this case. . . It is not 
 necessary that the appointee should be privy to the trans- 
 action, because the design to defeat the purpose for 
 which the power was created will stand just the same, 
 whether the appointee was aware of it or not; and . . 
 it is not necessary, in order to bring the case within the 
 scope of the jurisdiction on which the Court acts, that 
 the appointee should be aware of the appointment, or of 
 its being actually made. Neither is it necessary that the 
 object should be the personal benefit of the donee of the 
 power. If the design of the donee in exercising the power 
 is to confer a benefit, not upon himself actually, but upon 
 some other person not being an object of the power, that 
 motive just as much interferes with and defeats the 
 purpose for which the trust was created, as if it had been 
 for the personal benefit of the donee himself." 
 
 The present has been chosen in preference to the case usually Appointment 
 cited as the leading authority (ra), as there the Court only set in fraud of 
 aside the appointment in part upon the submission of the plaintiff a j,j e in toto _ 
 in his bill to allow the appointment to stand good in part. An 
 appointment which is a fraud upon a power is voidable where the 
 legal estate passes to the appointee, and void in tolo where the 
 appointee takes an equitable interest (o) ; and as a party cannot 
 
 («) Aleyn v. Belchier (1758), Brookes v. Cohen (1910), 80 
 
 1 Eden, 132; 2 Wh. & T. L. C. L. J. Ch. 208; [1911] 1 Ch. 37; 
 
 308, 7th ed. Cloutte v. Storey (1910), 80 L. J. 
 
 (o) Daubeny v. Cochbum Ch. 193; [1911] 1 Ch. 18. 
 (1816), 1 Mer. 626; Re Cohen, 
 
144 
 
 LEADING CASES IN EQUITY. 
 
 Fiduciary 
 powers. 
 
 Aiding 
 
 defective 
 
 execution. 
 
 approbate and reprobate, he cannot impeach, a part of one transac- 
 tion unless be also impeaches the other objectionable parts of the 
 same transaction (p). 
 
 All that is necessary to the valid declaration of trust is that the 
 settlor should point out "the object, the property, and the way 
 in which it shall go ... . unless he shows clearly that his desire 
 expressed is to be controlled by the party ; and that he shall 
 have an option to defeat it " (q). And powers which embody all 
 the essentials of a valid trust are regarded as fiduciary (r), with 
 the result that if the donee fails to exercise the power, the parties 
 named will be held entitled upon an implied gift in default of 
 appointment (a). But this implication cannot be made from the 
 bare fact that there is not a gift over in default of appointment to 
 other parties than the named objects (<). 
 
 Another result of regarding powers as fiduciary was that although 
 the Court could not supply the want of execution, it did aid a 
 defective execution (u). The persons in whose favour this juris- 
 diction is exercised are wife (as), legitimate children {y) ; but not in 
 favour of illegitimate children (z), nor of a husband (o). It is also 
 exercised in favour of purchasers for value (6) and by an exten- 
 sion to creditors (c), but not in favour of volunteers (d), except 
 
 (p) Harrison v. Randall 
 (1852), 21 L. J. Oh. 294; 9 Ha. 
 397. 
 
 (q) Malim v. Keighley (1794, 
 1795), 2 Vea. Jr. 333, 529; 
 post, p. 172. 
 
 (r) Harding v. Glyn (1739), 
 1 Atk. 469; 2 Wh. & T. L. C. 
 335, 7th ed. ; Re Bradshaw, Brad- 
 shatv v. Bradshaw (1902), 71 I>. 
 J. Ch. 230; [1902] 1 Ch. 436. 
 
 (s) Brown v. Higgs (1799), 4 
 Vea. 708; (1800), 5 Ves. 495; 
 (1803), 8 Vea. 561; Comiskey v. 
 Bowring Hanbury (1904), 74 
 L. J. Ch. 263; [1905] A. C. 84. 
 See Robson v. Flight (1865), 34 
 L. J. Ch. 226; 4 De G. J. & S. 
 608. 
 
 (I) Re Weeke's Settlement 
 (1896), 66 L. J. Ch. 179; [1897] 
 1 Ch. 289. 
 
 («) Toilet v. Toilet (1728), 2 
 P. Wms. 489; 2 Wh. & T. L. C. 
 289, 7th ed. ; Holmes v. Coghill 
 (1802), 7 Vea. 499; affd. (1806), 
 12 Vea. 206. See Re Kirwan's 
 Trusts (1883), 52 L. J. Ch. 952; 
 25 Ch. D. 373. 
 
 Or) Toilet v. Toilet (1728), 2 
 P. Wms. 489; 2 Wh. & T. L. C. 
 289, 7th ed. 
 
 (y) Morse v. Martin (1865), 
 34 Beav. 500; Bruce v. Bruce 
 (1870), 40 L. J. Ch. 141; L. E. 
 11 Eq. 371; Re Walker, McColl 
 v. Bruce (1908), 77 L. J. Ch. 
 370; [1908] 1 Ch. 560. 
 
 (z) Bramhall v. Hall (1764), 
 2 Eden, 220. 
 
 (a) Moodie v. Reid (1816), 1 
 Madd. 516; Hughes v. Wells 
 (1852), 9 Ha. 749. 
 
 (6) Howell v. Hew (1842), 1 
 Y. & C. Ch. 345; affd. (1843), 12 
 L. J. Ch. 158; Hughes v. Wells 
 (1852), 9 Ha. 749. See George 
 v. Milbanke (1803), 9 Ves. 190; 
 Cloutte v. Storey (1910), 80 L. J. 
 Ch. 193; [1911] 1 Ch. 18. 
 
 (e) Pollard v. Greenvil (1660), 
 1 Ch. Rep. 184. 
 
 (d) Evans v. Saunders (1853), 
 22 L. J. Ch. 471; 1 Drew. 415; 
 revd. on other grounds (1855). 6 
 De G. M. & G. 654; (1861), 31 
 L. J. Ch. 233; 8 H. L. C. 721. 
 
POWER. 145 
 
 charities (e), the latter being always regarded favourably by the 
 Court. 
 
 The fiduciary nature of a special power in the eyes of a Court Illusory 
 of Chancery found another illustration in the doctrine of illusory appointments, 
 appointments. Under a non-exclusive power, each object was 
 entitled to a share, and this was satisfied at the common law if one 
 of several objects obtained a share or interest, however small it 
 might be, either by direct appointment or under the terms of a 
 gift in default of appointment. In Chancery, if only " an unsub- 
 stantial, illusory or nominal" share or interest was appointed to, 
 or devolved in default of appointment upon, an object of the 
 power, he could impeach the transaction (/). The equitable rule 
 was abrogated and the common law rule confirmed by stat. 1 Will. 4, 
 c. 46 (commonly called the Illusory Appointments Act). This 
 statute still left us the slaves of form, as was pointed out by one 
 eminent equity judge (g), and his suggestion "to make every 
 power of appointment exclusive, unless the author of the settle- 
 ment had pointed out the minimum share which every object was 
 to get," was embodied in the statute 37 & 38 Vict. c. 37 (commonly 
 called Lord Selborne's Act), which applies to appointments there- 
 after made (A). 
 
 A special power, as we have seen, is fiduciary (i), but a general General 
 power is property, to use a conventional expression. What is power, 
 meant is, that by executing the power (k) it becomes assets of the 
 donee to be administered as part of his general estate (I). There 
 can therefore be no question of a fraud upon a general power (m). 
 And where the donee of a general power has induced the trustees to 
 apply the trust fund in an unauthorized manner, and the fund is 
 lost, his appointees cannot maintain an action against the trustees 
 in respect of the breach of trust (n). 
 
 In considering the validity of an appointment, the Court of Substance 
 Chancery regarded the substance. One illustration is afforded by regarded. 
 
 (e) Innes v. Sayer (1849), 18 («") Ante, p. 144. 
 
 L. J. Ch. 274; 7 Ha. 377; affd. (V) Holmes v. Coghill (1802), 
 
 (1851), 21 L. J. Ch. 190; 3 Mac. 7 Ves. 499; affd. (1806), 12 Ves. 
 
 & G. 606. 206. See Wills Act, 1837, s. 27. 
 
 (/) Kemp v. Kemp (1801), 5 (I) George v. Milbanke (1803), 
 
 Ves. 849; Butcher v. Butcher 9 Ves. 190; Bey f us v. Lawley 
 
 (1812), 1 V. & B. 79. (1903), 72 L. J. Ch. 781; [1903] 
 
 (je) Jessel, M.R., Qainsford v. A. C. 411. 
 
 Dunn (1874), 43 L. J. Ch. 403; (to) See Re Bradshaw, Brad- 
 
 L. R. 17 Eq. 405. shaw v. Bradshaw (1902), 71 
 
 (A) See Re Capon's Trusts L. J. Ch. 230; [1902] 1 Ch. 436. 
 
 (1879), 48 L. J. Ch. 35; 10 Ch. (») WV.liams v. Lomas (1852), 
 
 D. 484; Re Deakin, Starkey v. 16 Beav. 1; Brewer v. Swirles 
 
 Eyres (1894), 63 L. J. Ch. 779; (1854), 23 L. J. Ch. 542; 2 Sm. 
 
 [1894] 3 Ch. 565. & G. 219. 
 
 K. L 
 
146 LEADING OASES IN EQUITY. 
 
 the doctrine of illusory appointments (o). An illusory share might 
 be accounted for by the circumstances, as where a father advanced 
 a child (p) he was regarded as a purchaser sub modo(q). Again, 
 under a power to appoint to children, descendants in the first 
 generation are the sole objects, and an appointment to remoter 
 descendants is void (r). But where a child is a party to the 
 appointment, and his consent can be inferred to its terms, an 
 appointment to a child for life, and to his descendants after his 
 death, may be supported as a double transaction, namely, an 
 appointment to the child and a settlement by him (s), for one 
 deed may embody several objects, and in its several parts be opera- 
 tive as to some only of the parties (t). Again, an appointment to an 
 object of the power for life, to whom a general power of appoint- 
 ment is also given, is a valid exercise of a special power (u) ; for a 
 general power is, in effect, property (a;). Another illustration is 
 the doctrine of cy-pres. This is applicable to appointments by will 
 only, and not to appointments by deed (y). Under this doctrine, if 
 an appointment be made to an object of the power and afterwards 
 to his descendants, not being objects, in a line of succession which 
 the law permits, then effect will be given to the substance of the 
 gift by giving an estate of inheritance to the object of the power; 
 but^if the appointment interposes estates which break the line of 
 succession between the object of the power and his descendants, 
 the doctrine is inapplicable (z). Again, an appointment to a person 
 not an object of the power, in trust for an object of the power, is a 
 valid exercise of the power (a), as is an appointment of land to 
 trustees upon trust for sale and division of the proceeds amongst 
 objects of the power (b). 
 
 (o) See ante, p. 145. («) Stark v. DaJcyns (1874), 
 
 O) Bristow v. Warde (1794), 44 L. J. Ch. 205; L. E. 10 Ch. 
 
 2 Ves. Jr. 336. See tit. Advance- 35. See Jebb v. Tugwell (1855), 
 
 uient, ante, p. 32. 25 L. J. Ch. 109; 7 De G. 11. 
 
 (q) Smith v. Camelford (Lord) & G. 663. 
 
 (1795), 2 Ves. Jr. 698; Zee v. Or) See ante, p. 145. 
 
 Bead (1855), 1 K. & J. 620. (y) Brudenell v. Elwes (1801), 
 
 (y) Brudenell v. Elwes (1801), 1 East, 442. 
 
 1 Bast, 442; (1802), 7 Ves. 382. (z) Line v. Hall (1873), 43 
 
 (s) Thompson v. Simpson L. J. Ch. 107; Re Rising, Rising 
 
 (1841), 1 Dr. & War. 459; Gold- v. Rising (1904), 73 L. J. Ch. 
 
 smid v. Goldsmid (1842), 12 L. J. 455; [1904] 1 Ch. 533. 
 
 Ch. 113; 2 Ha. 187. («) Thornton v. Bright (1836), 
 
 (0 Collins v. Prosser (1823), 6 L. J. Ch. 121 ; 2 M. & Cr. 230. 
 
 1 L. J. (O. S.) K. B. 212; 1 B. & (J) Kenworthy v. Bate (1802), 
 
 C. 682; Hudson v. Revett (1829), 6 Ves. 793; Re Paget, Mellor v. 
 
 7 L. J. (O. S.) O. P. 145; 5 Binp;. Mellor (1897), 67 L. J. Ch. 151; 
 
 368; Duncan v. Campbell (1842), [1898] 1 Ch. 290. 
 12 Sim. 616. 
 
POWER. 147 
 
 The question of the fraudulent exercise of a power was discussed Fraud on 
 in two suits between the same parties, and the reports of these " 
 cases have not been chosen as leading cases, for, although of high 
 authority, they were deemed too complicated in their facts to 
 render them suitable for that purpose in a book intended primarily 
 for students. Neither, however, can be ignored, and the material 
 circumstances which the student must bear in mind were as 
 follows : A father had, under his marriage settlement, a power of 
 appointment over a fund to be exercised in favour of his children. 
 He disapproved of a marriage contemplated by his daughter (Lady 
 Mary) and threatened to disinherit her, as he was entitled to do, 
 if she married the gentleman of her choice. The daughter 
 promised not to marry in her father's lifetime, but he sought to 
 make his wishes effective after his death. He appointed the fund, 
 giving a double share to a son (Lord Henry), who described 
 himself as a " dummy " in the transaction. Half of the appointed 
 sum he kept for himself, the other half (the subject matter of the 
 action) he received upon a trust or understanding which he 
 observed by investing it, through his bankers, in the joint names 
 of the defendant, the Duke of Portland, but then Marquis of 
 Tichfield, and a Mr. Ellis, in whose joint names the dividends 
 were to be placed at the bankers. By a deed Lord Henry directed 
 that the Marquis and Mr. Ellis should hold the fund according to 
 the appointment of the Duke of Portland for the time being for 
 the benefit of Lady Mary, and, if no direction, for his (Lord 
 Henry's) benefit. Upon the death of the father the Marquis 
 succeeded to the dukedom, and the income of the fund was paid to 
 another daughter (Lady Harriet) together with that of her own 
 share, and by her direction invested in the joint names of her two 
 brothers (the Duke and Lord Henry) and of herself. Lady Mary 
 then contracted the marriage which her father had sought to 
 prevent. The Duke thereupon appointed the whole fund and the 
 investments of the income to Lady Harriet, reserving a power of 
 revocation. Another transaction impeached was with respect to a 
 sum settled by the father in 1843. A third transaction was with 
 regard to a fund subject to a Scotch marriage settlement, but 
 proceedings in respect of this were abandoned. It was clear that 
 there was no engagement on the part of Lady Harriet to observe 
 the wishes of her father, which were only made known to her at a 
 late stage of the proceedings, and she gave no undertaking 
 respecting the disposal of the funds which came to her by the 
 appointment of her brother. The appointments were held to be 
 void as a fraud on the power, the ground being that the object 
 sought to be attained was to prevent the marriage and not the 
 
 l2 
 
148 LEADING CASES IN EQUITY. 
 
 exercise of a power in favour of a particular object ; and the order 
 in the House of Lords was expressed to be "without prejudice to 
 any question as to any future exercise of the powers of appoint- 
 ment " (c). The Duke then made a fresh appointment, expressed 
 to be irrevocable, in favour of Lady Harriet, this time without any 
 agreement, hope or expectation that she would accede to his wishes 
 respecting the disposal of the fund ; but this appointment also was 
 held to be void, the evidence of the appointee showing that she was 
 a "dummy" or "mere instrument to carry into effect the will of 
 the Duke, whom she believes to be the depository of her late 
 father's wishes on the subject," and also, for this is important, 
 " that the Duke is aware of Lady Harriet's mind being made up 
 to act exactly as he wishes her to do " (d). The Court of Appeal 
 recognised, what seems to have been challenged by the learned 
 judge in the Court below, that as long as a donee keeps within the 
 four corners of the power, he may give effect to spite or ill-will ; 
 the objection lies in the purpose and intention of the party, not in 
 his motive (e). It was at one time held that if a father, having a 
 power to appoint to children, and to declare the period of time at 
 which it should be raised, and exercised that power in favour of 
 an infant and declared that the portion should vest immediately, 
 he could not derive any benefit from the appointment as the legal 
 personal representative of the child in the event of the latter dying 
 under the age of twenty-one and unmarried. This was rested 
 primarily upon the authority of a case in Brown's Chancery Cases, 
 a work of indifferent authority, but found upon examination to be 
 reported inaccurately. It is now settled that an appointment by a 
 father in favour of an infant child, coupled with a declaration that 
 the portion shall vest immediately, will be good, especially where 
 there would be no provision in favour of the child during its 
 infancy unless the appointment be otherwise fraudulent in fact (/). 
 The question of what is a fraud upon a power may be exemplified 
 by the following illustrations : — Where a party having power to 
 appoint to a child appoints the property to an object of the power for 
 life, with provisions in favour of the descendants of that child, the 
 appointment is void so far as concerns the latter provision, not because 
 it is a fraud, but because the terms of the power do not warrant an 
 appointment in this form (g). Again, where there is an appoint- 
 
 (c) Portland (Duke) v. Topham non {Lord) (1804), 2 Sch. & L. 
 (1864), 34 L. J. Ch. 113; 11 118; Campbell v. Rome (1842), 
 H. L. C. 32. 1 Y. & C. Ch. 664. 
 
 (d) Topham v. Portland {Duke) (/) Eenty v. Wrey (1882), 21 
 (1869), 39 L. J. Ch. 259; L. E. Ch. D. 332. 
 
 5 Ch. 40. (.g) Brudenell v. Elwes (1801), 
 
 (e) See also Vane v. Dungan- 1 East, 412; (1802), 7 Ves. 38i:. 
 
POWER. 149 
 
 ment in favour of an object of the power with a direction to settle, 
 if the direction is not warranted the appointee takes the fund free 
 from any obligation to settle (h) ; for the estate being vested by 
 the appointment, and the words restricting this interest being in 
 the nature of a divesting clause, and void, the absolute interest 
 remains (i). If the property be appointed and settled by an 
 instrument to which the appointee is a party, the transaction may 
 be supported as having a double aspect, namely, an appointment 
 by the donee and a re-settlement by the appointee (7c). And where 
 the party making the appointment is a parent he may exert his 
 influence legitimately in order to induce the appointee, being his 
 child, to make a settlement; but an abuse of that influence, as 
 where it is exerted to obtain a disposal of the fund in favour of 
 persons not objects of the power, will render the appointment 
 fraudulent and void (I). A power to jointure (m) may be the 
 subject of a legitimate bargain between the affianced parties of an 
 intended marriage, just as they might deal with one another 
 respecting their own property (n). In the leading case the party 
 sought to be benefited by illegimate means was not the donee. 
 Where the donee of the power seeks to obtain a personal benefit by 
 the exercise of the power the transaction is the more objection- 
 able (o). 
 
 Satisfaction. 
 
 WILCOCKS v. WILCOCKS. (1706) [54] 
 
 [2 Vern. 558 .] 
 
 A father covenanted to purchase lands of the value of 
 200 1, a year and to settle the same upon himself for life, 
 
 (Ji) Re Crawshay, Crawshay v. Ch. D. 1. 
 
 Crawshay (1890), 59 L. J. Ch. (m) See Be Be Hoghton, Be 
 
 395; 43 Ch. D. 615. Hoghton v. Be Hoghton (1896), 
 
 (i) See Leake, Law of Land, 65 L. J. Ch. 637; [1896] 2 Ch. 
 
 178. 385. 
 
 (&) Thompson v. Simpson («) Saunders v. Shafto (1904), 
 
 (1841), 1 Dr. & War. 459; Gold- 74 L. J. Ch. 110; [1905] 1 Ch. 
 
 smid v. Ooldsmid (1842), 12 L. J. 126. See Alleyn v. Belchier 
 
 Ch. 113; 2 Ha. 187. (1758), 1 Eden, 132; 2 Wh. & 
 
 (I) Pryor v. Pryor (1864), 33 T. L. C. 308, 7th ed. 
 
 L. J. Ch. 441; 2 De G. J. & S. (o) Be Perkins, Perkins v. 
 
 205; Be Kirwan's Trusts (1883), Bagot (1893), 62 L. J. Ch. 531; 
 
 52 L. J. Ch. 952; 25 Ch. D. [1893] 1 Ch. 283; Cloutte v. 
 
 373. See Tucker v. Bennett Storey (1910), 80 L. J. Ch. 193; 
 
 (1888), 57 L. J. Ch. 507; 38 [1911] 1 Ch. 18. 
 
150 
 
 LEADING CASES IN EQUITY. 
 
 ■with remainder to his wife for her jointure, with re- 
 mainder to his first and other sons in tail with remainders 
 over. The father purchased lands of this value, but made 
 no settlement of them in accordance with his covenant, 
 and they descended upon the plaintiff as his eldest son 
 and heir-at-law. The object of the suit was to obtain 
 specific performance of the covenant, and to compel a 
 purchase of further lands of the stated value. Lord 
 Cowper, L.K., held that "the lands descended, being of 
 200Z. per annum and upwards, ought to be deemed a 
 satisfaction of the covenant." 
 
 Satisfaction 
 and per- 
 formance. 
 
 To what 
 
 covpnants 
 
 applicable. 
 
 Intent. 
 
 The student will observe that no question arose as to the 
 ■widow's right. That question has arisen for decision, and it has 
 been held that under the circumstances occurring in the principal 
 case she would have had to take the rents of the land in exoneration 
 to her claim to dower out of any other lands ( js). 
 
 " An important distinction exists between satisfaction and 
 performance. Satisfaction supposes intention; it is something 
 different from the subject of the contract, and substituted for it; 
 and the question always arises, was the thing done intended as a 
 substitute for the thing covenanted ? a question entirely of intent ; 
 but with reference to performance, the question is, has that 
 identical act which the party contracted to do been done ? " (q). 
 That one of the parties to a contract could, under the doctrine of 
 election, force a variation of a contract upon another party, would 
 have appeared a startling, not to say an alarming, proposition in a 
 Court of law ; but the doctrine of election compels a compensation 
 to be made to a party disappointed, and does not involve an absolute 
 forfeiture of either benefit (r). 
 
 There cannot be specific performance eo nomine of a contract to 
 make a will, the remedy of the covenantee being an action for 
 damages (s). 
 
 Satisfaction may arise from the express terms of the gift, as 
 where a testator expresses in terms that a provision by will shall 
 be "in satisfaction" of a particular obligation or benefit, but this 
 
 (p) Hamilton v. Jackson 
 (1845), 2 Jo. & L. 295. 
 
 (qi) Plumer, M.R., Goldsmid v. 
 Ooldsmid (1818), 1 Swanst. at 
 p. 219. 
 
 (r) See Leake, Contracts, 
 p. 602; tit. Election, ante, p. 52. 
 
 (s) jfe Parkin, Hill v. Schwatz 
 (1892), 62 L. J. Ch. 55; [1892] 
 3 Ch. 510. 
 
SATISFACTION. 151 
 
 is a question of construction, and is not affected by the equitable 
 rule now under discussion (t). Where the covenant extends to 
 lands of one tenure, there will be no satisfaction if the lands 
 purchased be of a different tenure (u). So a covenant to settle 
 lands to be purchased will not be satisfied out of lands of which 
 the testator is seised at the date of the covenant (x) ; but so long as 
 the property answers the description in the covenant it will be a 
 satisfaction in whole or in part according to the value (y), for the 
 Court leans against a "double portion," an expression adverted 
 to hereafter (z). So land is not a satisfaction for money, nor money 
 for land (a). 
 
 THYNNE (LADY E.) v. GLENGALL (EARL). (1848) [55] 
 [2H.L.C. 131.] 
 
 A father agreed, upon the marriage of his daughter, 
 to give her a portion of 100,OOOL He transferred into 
 the joint names of the trustees of her marriage settlement 
 one-third part thereof in stock, and gave them his bond 
 to transfer the remainder. He subsequently bequeathed 
 a moiety of his residuary personal estate in favour of his 
 daughter and her children. Under the marriage settle- 
 ment the fund was applicable in favour of the children 
 according to the joint appointment of the husband and 
 wife, by the will according to the appointment of the 
 wife alone. The slight difference in the trusts was dis- 
 regarded, and the Court elected that the parties under 
 disability should take under the will, that being found 
 to be for their benefit. In moving the judgment of the 
 
 {t) See Prime v. Stebbing {y) Lechmere v. Lechmere 
 
 (1752), 2 Ves. Sen. 409. See {Lady) (1735), Cas. t. Talb. 80; 
 
 Davie v. Messiter (1860), 7 Jur. 2 Wh. & T. L. C. 399, 7th ed. ; 
 
 N. S. 349. Roper v. Bartholomew (1823), 12 
 
 {u) Att.-Gen. v. Whorwood Pri. 797. 
 (1750), 1 Ve3. Sen. 534; Pinnel (z) See Thynne {Lady E.) v. 
 
 v. Ballet (1751), Ambl. 106. Glengall {Earl) (1848), 2 H. L. 
 
 {x) Lechmere v. Carlisle C. 131 ; infra. 
 {Earl) (1733), 3 P. Wms. 211; {a) Chaplin v. Chaplin (1734), 
 
 affd. nom. Lechmere v. Lechmere 3 P. Wms. 245; Alleyn v. Alleyn 
 
 {Lady) (H35), Cas. t. Talb. 80; (1750), 2 Ves. Sen. 37. 
 2 Wh. & T. L. C. 399, 7th ed. 
 
152 LEADING OASES IN EQUITY. 
 
 House, Lord Cottenham, L.C., said: "Equity leans 
 against legacies being taken in satisfaction of a debt, but 
 leans in favour of a provision by will being in satisfac- 
 tion of a portion by contract, feeling the great im- 
 probability of a parent intending a double portion for 
 one child, to the prejudice generally, as in the present case, 
 of other children. In the case of debt, therefore, small 
 circumstances of difference between the debt and the legacy 
 are held to negative any presumption of satisfaction; 
 yhereas in the case of portions, small circumstances are 
 disregarded. So, in the case of debt, a smaller legacy is 
 not held to be in satisfaction of part of a larger debt; 
 but in the case of portions it may be satisfaction pro 
 tanto. It has been decided that in the case of a debt, a 
 gift of the whole or part of the residue cannot be con- 
 sidered as satisfaction, because it is said that, the amount 
 being uncertain, it may prove less than the debt." 
 
 The passages quoted cover a wide field, and the leading cases 
 ■will be referred to incidentally in dealing with the various topics 
 ■which they suggest. 
 
 Double The doctrine of double portions is a purely equitable doctrine. 
 
 portions. rp^ commoIL i aw refused to impute to a person ignorance of the 
 
 effect of his words or acts (A), and a careful study of the numerous 
 reported cases in which the doctrine has been discussed will lead 
 many to the conclusion that the Court of Chancery would have 
 acted wisely if it had recognised that " testators " — or indeed other 
 persons — " have a right to be eccentric, capricious, arbitrary, and, 
 so far as the term may be used, unjust ; nor does it seldom happen 
 that they have reasons known to themselves, though not to those 
 who expound their wills, for dispositions seemingly strange and 
 unreasonable " (c). In order to raise the presumption the relation of 
 parent and child, or the analogous relation, should exist. Prima facie 
 it does not exist between a parent and an illegitimate child (d), but 
 the parent of an illegitimate child may put himself in loco parentis 
 
 (S) Jamieson v. Trevelyan 2 De G. M. & G. at p. 313. 
 
 (1854), 23 L. J. Ex. 281; 10 Ex. (d) Exp. Pye (1811), 18 Ves. 
 
 269. 180; 2 Wh. & T. L. C. 366, 
 
 (c) Knight Bruce, L.J., Hart 7th ed. 
 v. Tulh (1852), 22 L. J. Oh. 649; 
 
SATISFACTION. 153 
 
 ■with all the attendant consequences of the legal relation (e). Blood 
 relationship is unnecessary to establish this artificial relationship, 
 nor does the fact that the child lives with and is maintained by its 
 father affect the question (/). The doctrine does not depend upon 
 infancy (g). Eesting as the matter does on presumed intention, the 
 path of the student has been rendered no easier by refinements 
 •which are logical in themselves, but somewhat nice. No one has 
 yet sought to apply the doctrine so as to make a recipient return 
 the subject-matter of a cumulative gift. It may have suggested 
 the equitable doctrine of illusory appointments (/»). But no one 
 ever claimed that successive appointments by deed in favour of 
 objects of a power, of part of a fund set apart for portions, came 
 within the rule. The question was examined with some care in a 
 decision in the House of Lords (»'), and the net result of the cases 
 is that where a provision is made by will, and at a subsequent date 
 there is a gift inter vivos of a. portion, the Court will generally 
 presume an ademption of the testamentary gift ; on the other hand, 
 where a gift of a portion is made, a subsequent testamentary gift 
 will not be regarded as a satisfaction, the natural inference to be 
 drawn from a will being a bounty. The rule as to double portions 
 only applies as between persons to whom the donor is a parent or 
 stands in loco parentis ; it has no application between strangers and 
 children (k). 
 
 The majority of the cases cited in this note are decisions respect- Application 
 ing gifts by a parent or person in loco parentis of his own property, of the rule 
 But the rule is equally applicable to property appointed under a ° P owers - 
 power reserved to a person filling that character (I). 
 
 Small gifts of money or a small fixed annuity are not regarded Essentials 
 as portions (ra). De minimis non curat lex. It is immaterial that of portion, 
 the gilt was made with an ulterior object. The question to be 
 determined is whether the parent or person in loco parentis intended 
 to confer a benefit upon the recipient (n). 
 
 O) Kilpin v. Kilpin (1833, [1891] 2 Ch. 482. 
 
 1834), 1M.&K. 520; Re Lawes, {h) See ante, p. 145. 
 
 Lawes v. Lawes (1882), 20 Ch. D. (i) Chichester (Lord) v. Coven- 
 
 81. See Rogers v. Soutten (1838), try (1867), 36 L. J. Ch. 673; 
 
 7 L. J. Ch. 118; 2 Keen, 598. L. R. 2 H. L. 71. 
 
 (/) Powys v. Mansfield (1837), (Jc) Re Heather, Pumfrey v. 
 
 7 L. J. Ch. 9; 3 M. & Cr. 359; Fryer (1906), 75 L. J. Ch. 588; 
 
 Re Pollock, Pollock v. Worrall [1906] 2 Ch. 230. 
 
 (1885), 54 L. J. Ch. 489; 28 Ch. (I) Re Peel's Settlement, Bid- 
 
 D. 552. dulph v. Peel (1911), 80 L. J. 
 
 (g~) See Booker v. Allen (1831), Ch. 574; [1911] 2 Ch. 165. 
 
 9 L. J. (O. S.) Ch. 130; 2 Ru;s. & (m) Watson v. Watson (1864), 
 
 M. 270; Re Lacon, Lacon v. 33 Beav. 574. 
 
 Lacon (1891), 60 L. J. Ch. 403; (») May v. May (1863), 33 
 
154 
 
 LEADING CASES IN EQUITY. 
 
 Portion 
 satisfied by 
 a legacy. 
 
 Satisfaction 
 of a legacy by 
 a portion. 
 
 Election 
 between 
 benefits. 
 
 Of debt 
 by legacy. 
 
 In the principal case, it was held that a portion was satisfied by 
 a share of residue. In the leading case of Blandy v. Widmore (o), 
 ■which is referred to in the principal case, a covenant to leave a sum 
 by will was satisfied by her distributive share under the Statute of 
 Distribution, but this is to be treated as a performance, and is not 
 strictly dependent upon the doctrine of satisfaction {p). The dis- 
 tinction between satisfaction and performance seems to rest in the 
 inherent distinction between money aud other kinds of property. 
 
 A legacy may be satisfied by a portion given subsequently to the 
 mating of the will (9). This is usually spoken of as an ademption, 
 but this term is restricted preferably to cases dependent upon the 
 non-existence of the subject-matter (r). 
 
 "Where the rule against double portions applies, the party may 
 elect between the benefits. This was decided by the principal case, 
 and as the parties were under disability, the Court elected for them. 
 But it had been previously settled that one benefit is not a substi- 
 tute for the other (s). 
 
 The authorities usually cited as the leading cases upon the subject 
 now to be discussed were decided nearly two centuries ago, and 
 the Court has been striving hard to minimise their effect (t). Where 
 a debtor, without talcing notice of the debt, bequeaths a sum as great 
 or greater than the amount of the debt to the creditor, this is a 
 satisfaction : but if the sum is bequeathed upon condition, or if 
 it be less than the debt, the creditor may claim both (?<). So, if 
 a motive be expressed for the gift, the presumption does not 
 arise (x). A direction to pay debts excludes the presumption of 
 intention to satisfy an existing debt by a legacy (y). So, where 
 the time for payment of the debt and legacy are not identical, the 
 presumption is excluded (z). So, where the debt is in respect of trust 
 funds in the hands of the testator (a). Although satisfaction of the 
 
 Beav. 81. See Pankhurst v. 
 Howell (1870), L. E. 6 Ch. 136. 
 
 (o) Blandy v. Widmore (1716), 
 1 P. Wms. 324; 2 Wh. &. T. L. 
 C. 407, 7th ed. 
 
 (p) Goldsmid v. Goldsmid 
 (1818), 1 Swanst. 211, see pas- 
 sage cited, ante, p. 150. 
 
 (g) Pym v. Lockyer (1840), 10 
 L. J. Ch. 153; 5 M. & Cr. 29. 
 
 (r) Sea tit. Ademption, ante, 
 p. 22. 
 
 (s) Pym v. Loclcyer (1841), 10 
 L. J. Ch. 153; 5 M. & Cr. 29. 
 
 {i) See Re Horlock, Calham v. 
 Smith (1895), 64 L. J. Ch. 325; 
 [1895] 1 Ch. 516. 
 
 («) Talbott v. Shreiosbury 
 {Duke) (1714), Prec. Ch. 394; 
 2 Wh. k T. L. C. 375, 7th ed. 
 
 (k) Chancey's Case (1717), 1 
 P. Wms. 408; 2 Wh. & T. L. 
 C. 376, 7th ed. 
 
 iy) Jefferies v. Michell 
 (1855), 20 Beav. 15; Be Huish, 
 Bradshaw v. Huish (1889), 59 
 L. J. Ch. 135; 43 Ch. D. 260. 
 See Turner v. Martin (1857), 23 
 L. J. Ch. 216; 7 De G. M. & G. 
 429. 
 
 (z) Re Horlock, Calham v. 
 Smith (1895), 64 L. J. Ch. 325; 
 [1895] 1 Ch. 516. 
 
 (a) Rowe v. Rowe (1848), 17 
 
SATISFACTION. 155 
 
 debt may be presumed where a legacy exceeds the amount due, the 
 very largeness of the benefits conferred may exclude the presump- 
 tion of an intention to satisfy the one by the other (6). And 
 generally all the circumstances must be looked at (c). The rule as 
 to double portions is inapplicable (d). 
 
 Where a creditor makes a gift by will to a debtor, the debtor Legacy to 
 must account for the amount of the debt due(e). Where the debtor - 
 debtor has been discharged from liability as by a composition with 
 creditors (/) there is nothing to be deducted. But regard must be 
 had to the terms of the will, and a debtor may be entitled to a 
 legacy reduced by a sum upon which there was no remedy, as a 
 usurious debt (</), a debt upon which the remedy is loEt by the 
 Statute of Limitations (h), or in respect of a sum. greater than that 
 which he owed in fact («'). On the other hand, the will may contain 
 an effective provision amounting to a release of the debt and a gift 
 of a legacy, entitling the debtor to claim his legacy in full (7e). 
 
 A similar rule to that last discussed is the presumption that two Cumulative 
 legacies given in similar terms to the same person by the same legacies, 
 instrument, were the result of a mistake, and accordingly that the 
 testator intended the beneficiary to have one only {I). If the gifts 
 were made by different instruments, as by will and codicil (m), or 
 by separate codicils (n), they were deemed to be cumulative. Upon 
 what principle the distinction rests cannot be conjectured, as a will 
 and codicils together form but one testamentary instrument (o). 
 
 L. J. Ch. 357; 2 De G. & Sm. 204; ante, p. 28. 
 
 294. See Crichton v. Crichton (») Re Wood, Ward v. Wood 
 
 (1896), 65 L. J. Ch. 491; [1896] (1886), 55 L. J. Ch. 720; 32 Ch. 
 
 1 Ch. 870. D. 517. 
 
 (6) Hassell v. Hawkins (1859), (k) Hyde v. Neate (1847), 15 
 
 4 Drew. 468. Sim. 554; Harvey v. Palmer 
 
 (c) Re Furness, Furness v. (1851), 4 De G. & Sm. 425. See 
 
 Stalkartt (1901), 70 L. J. Ch. South v. Williams (1842), 11 
 
 580; [1901] 2 Ch. 346. L. J. Ch. 410; 12 Sim. 566. 
 
 (<f) Tolson v. Collins (1799), 4 (j) Manning v. Thesiger 
 
 Ves. 483. (1835), 4 L. J. Ch. 285; 2 M. 
 
 (e) Courtenay v. Williams & K. 29; Early v. Benbow 
 
 (1844), 13 L. J. Ch. 461; 3 Ha. (1846) 15 L . j. C h. 169; 2 Coll. 
 
 539; affd. (1846), 15 L. J. Ch. 342. 
 
 2 °rfi «£ms P v Green-field C1854 , l ("*) Hooley v. Hatton (1784), 
 
 23 ( £ J. Ch.' 6*39 f sl (1 f f. 1 B - C - n C " ™> "■! * ™- * 
 476. See Stammers v. Elliott ?. L. 0. 910; Leej. Pain ( 1845), 
 
 (1868), 37 L. J. Ch. 353; L. E. " L -„ J - C \?f< i ^f 1 ' 
 
 SCh. 195; Re Rees, Bees v.Rees, ^sell y Eickson (1853), 4 
 
 (1889), 60 L. T. 260. a - u - °- zyd - 
 
 (g) Stanton v. Knight (1837), (») ^«so» v. O'Leary (1872), 
 
 1 Sim. 482. 41 L. J. Ch. 342; L. E. 7 Ch. 
 
 Ch)' Courtenay v. Williams 4i$; Why te v. Whyte (187 Z), 43 
 
 (1844), 13 L. J. Ch. 461; 3 Ha. L» J. Ch. 104; L. E. 17 Eq. 50. 
 
 539; affd. (1846), 15 L. J. Ch. (0) Hayes d. Foorde v. Foorde 
 
156 
 
 LEADING CASES IN EQUITY. 
 
 Admissibility 
 of evidence. 
 
 Directions to 
 account for 
 advances. 
 
 The matter resting in presumption, evidence is admissible to 
 rebut it(p), and also to confirm it (q). And as the evidence is 
 directed to explain the nature of a subsequent transaction, it may 
 consist of parol declarations of intention if contemporaneous with or 
 part of that transaction (r). Parol evidence is also admissible to 
 determine the question -whether a party stands in loco parentis (s). 
 Parol evidence is admissible, not only in the case of the presump- 
 tion arising in respect of double portions, but also in the case of an 
 alleged satisfaction of a debt by a legacy (t) ; but not to rebut the 
 presumption that benefits given by separate testamentary instru- 
 ments are intended to be cumulative (a). 
 
 Testators have sometimes given express directions in •wills 
 respecting the amount for which the beneficiaries under the 
 will are to account (x). Under provisions of this character, 
 it is an immaterial circumstance that the debt is one which 
 is not enforceable (y). Marriage settlements usually contain 
 a hotchpot clause, requiring parties, and those claiming under 
 them, to account for sums coming to them under appointments 
 before taking a share in the unappointed part, unless the donee of 
 the power shall provide to the contrary (z). A hotchpot clause 
 must be inserted, it is never implied (a). The Statute of Distribu- 
 tions also contains a provision that advancements to children shall 
 be accounted for by them, in ascertaining the amount of their 
 
 (1770), 2 W. Bl. 698; Duffield 
 v. Duffield (1829), 3 Bli. 
 N. S. 260; Freeman v. 
 Freeman (1854), 23 L. J. 
 Ch. 838; 5 De G. M. & G. 704; 
 Douglas-Menzies v. Umphelby 
 (1907), 77 L. J. P. C. 64; 
 [1908] A. 0. 224. 
 
 (p) Re Lacon, Lacon v. Lacon 
 (1891), 60 L. J. Ch. 403; [1891] 
 2 Ch. 482; Re Scott, Langton v. 
 Scott (1902), 72 L. J. Ch. 20; 
 [1903] 1 Ch. 1. 
 
 (y) Powys v. Mansfield (1837), 
 7 L. J. Ch. 9; 3 M. & Cr. 359. 
 
 (r) Powys v. Mansfield (1837), 
 7 L. J. Ch. 9; 3 M. & Cr. 359; 
 Kirk v. Bddowes (1844), 13 L. J. 
 Ch. 402; 3 Ha. 509. 
 
 («) Booker v. Allen (1831), 9 
 L. J. O. S. Ch. 130; 2 Euss. & 
 M. 270. See Fowkes v. Pascoe 
 (1875), 44 L. J. Ch. 367; L. R. 
 
 10 Ch. 343. 
 
 (0 Wallace v. Pomfret (1805), 
 
 11 Ves. 542. Seo Dixon v. Sam- 
 son (1837), 2 Y. & C. Ex. 566; 
 
 Horlock v. Wiggins (1888), 58 
 L. J. Ch. 46; 39 Ch. D. 142. 
 
 («) Lee v. Pain (1845), 14 
 L. J. Ch. 346; 4 Ha. 201. 
 
 (a;) See Re Cosier, Humphreys 
 v. Gadsden (1897), 66 L. J. Ch. 
 236; [1897] 1 Ch. 325. 
 
 (y) Stanton v. Knight (1827), 
 1 Sim. 482; Rose v. Gould 
 (1852), 21 L. J. Ch. 360; 15 
 Beav. 189; Poole v. Poole (1871), 
 L. R. 7 Ch. 17. See Crichton v: 
 Crichton (1896), 65 L. J. Ch. 
 491; [1896] 1 Ch. 870. 
 
 (z) See Cooper v. Cooper 
 (1873), 43 L. J. Ch. 158; L. R. 
 8 Ch. 813. 
 
 (ff) Walmsley v. Vaughan 
 (1857), 26 L. J. Ch. 503; 1 De 
 G. & J. 114; Re Ashton, Ingram 
 v. PapiUon (1897), 66 L. J. Ch. 
 731; [1897] 2 Ch. 574. See 
 Wombwell v. Haurott (1851), 20 
 L. J. Ch. 581; 14 Beav. 143; 
 Wheeler v. Humphreys (1898), 
 67 L. J. Ch. 499; [1898] A. C. 
 506. 
 
SATISFACTION. 157 
 
 share. The object of this provision is to obtain equality among 
 the children ; the widow's share is ascertained according to the 
 actual amount of the testator's estate, exclusive of the sums repre- 
 senting advances to children (6). In determining whether a par- 
 ticular payment is an advance regard must be had to the purpose 
 and amount of the payment (c), and it extends to provisions of a 
 contingent character (d). 
 
 Specific Performance. 
 In re SCOTT and ALVAREZ. (1895) [56] 
 
 [64 L. J. Ch. 378, n. ; (1895) 1 Ch. 596.] 
 
 SCOTT v. ALVAREZ. (1895) 
 [64 L. J. Ch. 821 ; (1895) 2 Ch. 603.] 
 
 A vendor had put up for sale by auction a house 
 described in the particulars as " a small safe investment." 
 The title was known to the vendor to be defective, and 
 she sold subject to a special condition precluding "any 
 objection or requisition of the intermediate title to the 
 premises between'' two dates. The purchaser took out 
 a summons under the Vendor and Purchaser Act, 1874, 
 for a declaration that the title was not one which the pur- 
 chaser ought to be compelled to accept, with the usual 
 consequential matters; but the Court of Appeal dis- 
 missed the summons. As a result of further inquiries 
 the purchaser still declined to complete, whereupon the 
 vendor commenced an action for the specific performance 
 of the contract, but was met by a defence, in the nature of 
 
 (V) Kirkcudbright (Lord) v. feild v. Minet (1878), 47 L. J. 
 
 Kirkcudbright (Lady) (1802), 8 Ch. 612; 8 Ch. D. 136; Be 
 
 Ve3. 51. BlocMey, BlocMey v. BlocMey 
 
 (c) Boyd v. Boyd (1867), 36 (1885), 54 L. J. Ch. 722: 29 Ch. 
 
 L. J. Ch. 877; L. E. 4 Eq. 305; D. 250. 
 
 Taylor v. Taylor (1875), 44 L. J. (d) Edwards v. Freeman 
 
 Ch. 718; L. B. 20 Eq. 155; Hat- (1727), 2 P. Wms. 435. 
 
158 
 
 LEADING CASES IN EQUITY. 
 
 Specific 
 
 performance 
 
 discretionary. 
 
 Dismissal 
 ■without 
 prejudice to 
 proceedings 
 at law. 
 
 Mutuality 
 of remedy. 
 
 a bill of review, alleging new matter of evidence. The 
 Court of Appeal refused to grant specific performance 
 of the contract, but as the vendor could show a title in 
 accordance with the conditions of sale, she was allowed to 
 retain the deposit. 
 
 The principal case shows that the remedy by specific performance 
 ■was an extraordinary remedy, admitting of the consideration of 
 extraneous matters in determining whether the jurisdiction should 
 be exercised or this particular form of relief refused. But the 
 jurisdiction, especially in cases relating to the sale of land, should 
 be exercised as a general rule (c). The principal case is an illus- 
 tration of the exercise in modern times of the judicial discretion to 
 refuse specific performance. 
 
 Before the passing of the Judicature Act, 1873, the Court of 
 Chancery sometimes dismissed a bill for specific performance 
 without prejudice to the plaintiff's right to pursue his remedy at 
 law. Where this course would have been followed it is now the 
 duty of the Court under the statute, which was designed to give a 
 party all his rights and remedies in respect of one cause of action 
 in one and the same proceeding, if it refuses to order specific 
 performance, to give to the party any alternative remedy which he 
 may possess (/). If this course had been adopted in the principal 
 case the vendor should have been allowed to recover the balance of 
 the purchase-money, as she had executed and tendered a convey- 
 ance to the purchaser (g). A plaintiff who has two remedies must 
 elect whether he will pursue his legal or his equitable remedy (A). 
 
 If the Court cannot enforce the contract against the plaintiff it 
 will refuse to exercise this jurisdiction at his instance (?'); but 
 where the plaintiff has performed his part of the contract, although 
 it could not have been specifically enforced against him, he may 
 obtain this equitable remedy if there exists no other valid 
 objection (A 1 ). For this reason a plaintiff may maintain an action 
 
 (e) Hall v. Warren (1804), 9 
 Vea. 605; JRevell v. Hussey 
 (1813), 2 Ball & B. 280; Hay- 
 wood v. Cope (1858), 27 L. J. 
 Ch. 468; 25 Beav. 140. 
 
 (/) Tamplin v. James (1880) 
 15 Ch. D. 215. See Olley v. 
 Fisher (1887), 56 L. J. Ch. 208; 
 34 Ch. D. 367. 
 
 (g) Laird v. Pirn (1841), 10 
 L. J. Ex. 259; 7 M. & W. 474. 
 
 (Ji) General Accident Assce. 
 v. Noel (1902), 71 L. J. K. B. 
 
 236; [1902] 1 K. B. 377. See 
 Gedye v. Montrose (JDuke) 
 (1857), 5 W. B. 537. 
 
 (j) Flight v. Bolland (1828), 
 4 Buss. 298 ; Stocker v. Wedder- 
 burn (1857), 26 L. J. Ch. 713; 
 3 K. & J. 393; Ogden v. Fossick 
 (1862), 32 L. J. Ch. 73; 4 De 
 G. F. & J. 426. 
 
 (Jc) Hermann v. 
 (1873), 43 L. J. Ch. 192; L.B. 
 16 Eq. 18; Wilkinson v. Clements 
 
SPECIFIC PERFORMANCE. 159 
 
 upon a contract which, could not be enforced against Mm by reason 
 
 of the Sfatute of Frauds, for by instituting proceedings he submits 
 
 to perform the contract {I). 
 
 A misrepresentation, although not sufficient to entitle a purchaser Defences to 
 
 to avoid a contract upon the ground of fraud, may enable him to specific per- 
 
 iorrnance : — 
 resist specific performance (ro). On the other hand, non-disclosure f ra ud. 
 
 of facts is no defence [a), unless there is a duty to disclose the 
 
 particular fact(o), or where by reason of a change of circumstances 
 
 fair dealing requires disclosure (p). But there is no doubt that the 
 
 Court is more zealous in requiring disclosure on the part of the 
 
 vendor than on the part of a purchaser (3). An active concealment 
 
 of a material fact is tantamount to fraud (r). 
 
 It is impossible to frame a definition which shall comprehend all Hardship. 
 
 the circumstances which the Court has regarded as sufficient to 
 
 entitle a purchaser to resist specific performance on the ground 
 
 that it would be a hardship. This much has been settled, that mere 
 
 inadequacy of value, unless attended by some other circumstance, 
 
 or being so gross as to shock the conscience, is not sufficient [s). 
 
 "Where upon a, sale of land, incumbrances exceeded the value of 
 
 the purchase-money, specific performance was refused upon the 
 
 ground of hardship (t). The liability of the defendant to a criminal 
 
 prosecution, or to a forfeiture, or to civil proceedings, all form 
 
 objections on this footing (a). So where the vendor cannot 
 
 (1872), 42 L. J. Ch. 38; L. R. (p) Edwards v. M oLeay (1815), 
 
 8 Ch. 96; Lowther v. Reaver G. Coop. 308; affd. (1818), 2 
 
 (1889), 58 L. J. Ch. 482; 41 Swanst. 287. See -per cur. Carter 
 
 Ch. D. 248. v. Boehm (1766), 3 Burr. 1910. 
 
 (V) Western v. Mussell (1814), (g) Smith v. Harrison (1857), 
 
 3Ves. & B. 187. 26 L. J. Ch. 412; Caballero v. 
 
 (m) Cadmanv. Homer (1810), Henty (1874), 43 L. J. Ch. 635; 
 
 18 Ves. 10; Lamare v. Dixon L. ft. 9 Ch. 447; Coaks v. Bos- 
 
 (1873), 43 L. J. Ch. 203; L. E. toell (1886), 55 L. J. Ch. 761; 
 
 6 H. L. 414. See Cox v. Middle- 11 App. Cas. 232; Carlish v. Salt 
 
 ton (1854), 23 L. J. Ch. 618; (1905), 75 L. J. Ch. 175; [1906] 
 
 2 Drew. 209. 1 Ch. 335. 
 
 («) Bowles v. Sound (1800), 5 (r) Gordon v. Street (1899), 
 
 Ves. 508; Abbott v. Sworder 69 L. J. Q. B. 45; [1899] 2 
 
 (1851), 4 De G. & Sm. 448; affd. Q. B. 641. 
 
 (1852), 22 L. J. Ch. 235; Hay- (s) Bay v. Newman (1788), 2 
 
 wood v. Cope (1858), 27 L. J. Cox, 77 (50 per cent, deficiency) ; 
 
 Ch. 468; 25 Beav. 140; Craig Abbott v. Sworder (1851), 4 De 
 
 v. Phillips (1876), 46 L. J. Ch. G. & Sm. 448; affd. (1852), 22 
 
 49; 3 Ch. D. 722. L. J. Ch. 235 (30 per cent, de- 
 
 (0) Tate v. Williamson (1866), ficiency). 
 L. R. 2 Ch. 55; Bagnall v. Carl- (£) Wedgwood v. Adams 
 
 ton (1877), 47 L. J. Ch. 30; 6 (1843), 6 Beav. 600; In re G.N. 
 
 Ch. D. 371; Coaks v. Boswell By. and Sanderson (1884), 53 
 
 (1886), 55 L. J. Ch. 761; 11 D. J. Ch. 445; 25 Ch. D. 788. 
 App. Cas. 232. («) Helling v. Lumley (1858), 
 
160 
 
 LEADING CASES IN EQUITY. 
 
 Default by- 
 plain tiflf. 
 
 Delay and 
 laches. 
 
 Incapacity 
 to perform. 
 
 show a means of aooess to the property, the purchaser will be 
 discharged (a:). 
 
 Specific performance will be refused not only where the plaintiff 
 is in default in respect of the contract (;/), but also where he fails to 
 perform a collateral term which could not be enforced in separate 
 proceedings (z). Upon this principle, where property is sold in 
 lots, although a separate contract arises in respect of each lot (n), 
 the subject-matters may be so closely connected that failure to 
 show a title to one of the lots may entitle the purchaser to be dis- 
 charged in respect of the other lots(i). Delay not sufficient to 
 entitle the other party to treat a contract as abandoned may pre- 
 vent the plaintiff from obtaining specific performance (c). The 
 period of delay sufficient to cause a refusal of relief is not fixed by 
 reference to the Statutes of Limitations, which in this, as in all 
 other matters of purely equitable jurisdiction, have no direct 
 application (d). 
 
 If the plaintiff, without any personal default, becomes incapable 
 of performing his part of the contract, specific performance will be 
 refused (e), unless the default is brought about by the act of the 
 defendant himself (/). Upon this principle a person whose 
 financial position has changed materially for the worse cannot 
 obtain specific performance of a contract to grant him a lease 
 containing onerous obligations (g). Specific performance cannot 
 be obtained against a defendant incapable of performing the 
 
 28 L. J. Ch. 249; 3 De G. & J. 
 493; Hyde v. Warden (1877), 47 
 L. J. Ex. 121; 3 Ex. D. 72; 
 Hope v. Walter (1899), 69 L. J. 
 Ch. 166; [1900] 1 Oh. 257; In 
 re Marshall and Salt's Cont. 
 (1900), 69 L. J. Ch. 542; [1900] 
 2 Ch. 202. 
 
 {a) Denne v. Light (1857), 26 
 L. J. Ch. 459; 8 De G. M. & G. 
 774. 
 
 (y) Walker v. Jeffreys (1842), 
 11 L. J. Ch. 209; 1 Hare, 341; 
 Mipgrave v. Case (1884), 54 L. J. 
 Ch. 399; 28 Ch. D. 356; General 
 Billposting Co. v. Atkinson 
 (1908), 78 L. J. Ch. 77; [1909] 
 A. C. 118. 
 
 (z) Clowes v. Higginson 
 (1813), 1 V. & B. 524; Martin v. 
 Pycroft (1852), 22 L. J. Ch. 94; 
 2 De G. M. & G. 785. 
 
 (a) Emmerson v. Heelis 
 (1809), 2 Taunt. 38; Lewin v. 
 Guest (1826), 1 Buss. 325. 
 
 (6) Peers v. Lambert (1844), 
 7 Beav. 546. See Dykes v. Blake 
 H83S), 7 D. J. C. P. 282; 4 Finer. 
 N. C. 463; Jacobs v. Revell 
 (190U), 6 J -L. J. Cn. 879; [laou] 
 2 Ch. 858. 
 
 (c) Howe v. Smith (1884), 53 
 L. J. Ch. 1055; 27 Ch. D. 89; 
 Cornwall v. Henson (1900), 69 
 L. J. Ch. 581; [1900] 2 Ch. 298. 
 See Southcomb v. Exeter (Bp.) 
 (1847), 16 L. J. Ch. 378; 6 
 Hare, 213. 
 
 (d) Talmarsh v. Mugleston 
 (1826), 4 L. J. (O. S.) Ch. 200. 
 
 (p) Bryant v. Busk (1827), 4 
 Ruf.s. 1; Firth v. Midland Ry. 
 (1875), 44 L. J. Ch. 313; L. E. 
 20 Eq. 100. 
 
 (/) G. W. Ry. v. Birmingham 
 and Oxford Jn. Ry. (1848), 17 
 L. J. Ch. 243; 2 Ph. 597. 
 
 (g) Nerfe v. Mackenzie (1837), 
 1 Keen, 474. 
 
SPECIFIC PERFORMANCE. 161 
 
 contract, as in the case of a contract to issue shares where the issue 
 would be ultra vires (h). If the defendant is capable of performing 
 part only of the contract the plaintiff may have a specific per- 
 formance of so much as the defendant can perform, with 
 compensation in respect of the defective performance (■/) ; subject 
 to this, that the substituted performance does not inflict a hardship 
 upon the defendant (k). 
 
 FALCKE v. GRAY. (1859) [ 57 ] 
 
 [29 L. J. Ch. 28; 4 Drew. 651.] 
 
 In this case the plaintiff was a dealer in curios, china, 
 and works of art of 6ome eminence, and with twenty-five 
 years' experience of the trade. He took the defendant's 
 house furnished upon lease, with an option at the end of 
 the term of purchasing two valuable ornaments, which' 
 formed part of the furniture, for 40£. Kindersley, V.-C, 
 stated that, having regard to the nature of the subject- 
 matter, specific performance would have been granted, but 
 he refused it on the ground of inadequacy of value and 
 hardship . 
 
 The general rule is that specific performance of a contract to sell Sale of goods, 
 chattels will not be granted (I) ; unless it relate to specific chattels 
 which have a peculiar value by reason of their rarity or beauty, as 
 in the principal case, or which may be essential to the plaintiff's 
 business and not readily obtained elsewhere, as railway trucks (m). 
 In the case of a sale of specific chattels, the Court possesses an 
 extended jurisdiction by force of sect. 52 of the Sale of Goods Act, 
 1893, which replaces an earlier enactment to the same effect (re). 
 
 (A) Ferguson v. Wilson (1866), 1 K. & J. 482; Fothergill v. 
 
 L. R. 2 Ch. 77. See Eastern Rowland (1873), 43 L. J. Ch. 
 
 Counties Ry. v. Ilawkes (1855), 252; L. E. 17 Eq. 132; Dominion 
 
 24 L. J. Ch. 601; 5 H. L. C. Coal Co. v. Dominion Steel and 
 
 331. Iron Co. (1909), 78 L. J. P. C. 
 
 (i) Barker v. Cox (1876), 46 115; [1909] A. C. 293. 
 
 L. J. Ch. 62; 4 Ch. D. 464; (m) North v. G. N. Ry. 
 
 Burrow v. Scammell (1881), 51 (1860), 29 L. J. Ch. 301; 2 Giff. 
 
 L. J. Ch. 296; 19 Ch. D. 175. 64. See Hughes v. Graeme 
 
 (yfc) Eowell v. George (1815), (1864). 33 L. J. Q. B. 335. 
 
 1 Madd. 1. (») Leake, Contracts, 822. 
 
 (0 Pollard v. Clayton (1855), 
 
 S. M 
 
162 
 
 LEADING CASES IN EQUITY. 
 
 Stocks and 
 shares. 
 
 In other 
 cases. 
 
 Where a contract contains an express provision not to supply goods 
 to any other person, an injunction may be granted to enforce its 
 observance (o). A provision to this effect may be inferred from 
 affirmative expressions (p) ; but unless there be a provision (express 
 or implied) to this effect, the Court will not, in the exercise of its 
 jurisdiction to grant an injunction, enforce a contract specifi- 
 cally (q). 
 
 The Court will also grant specific performance of a contract 
 relating to shares in a railway company or scrip of a new govern- 
 ment loan, as the plaintiff might not be able to purchase the stock 
 elsewhere, and damages would accordingly not furnish an adequate 
 compensation for the breach of contract (r). 
 
 The Court has granted specific performance of a contract relating 
 to a ship («), copyright (t), and a patent (u). A contract to grant a 
 bill of sale of chattels by way of security, there being evidence that 
 the defendant was dealing with them improperly, was enforced by 
 appointing a receiver (x). 
 
 [58] BRITAIN v. ROSSITER. (1879) 
 
 [48 L. J. Q. B. 362; 11 Q. B. D. 123.] 
 
 This case confirms the effect of earlier decisions, namely, 
 that the equitable doctrine of part performance under 
 ■which parol evidence was given of a contract not en- 
 forceable by reason of the Statute of Frauds is confined to 
 contracts relating to the sale of interests in land, or the 
 cases now enumerated in sect. 4 of the Sale of Goods Act, 
 1893. In the course of his judgment, Cotton, L.J., said: 
 
 (o) National Phonograph Co. 
 v. Edison-Bell Consolidated 
 Phonograph Co. (1908), 77 L. J. 
 Ch. 218; [1908] 1 Ch. 335. 
 
 (p) Metrop. Electric Supply 
 Co. v. Qinder (1901), 71 L. J. 
 Ch. 862; [1901] 2 Ch. 799. 
 
 (?) Fothergill v. Rowland 
 (1873), 43 L. J. Ch. 252; L. E. 
 17 Eq. 132. 
 
 (r) Doloret v. Rothschild 
 (1824), 2 L. J. (0. S.) Ch. 125; 
 1 Sim. & St. 590; Dunouft v. 
 Albrecht (1841), 12 Sim. 189. 
 
 See Cuddee v. Rutter (1720), 6 
 Vin. Ab. 538, pi. 21; 2 Wh. & 
 T. L. C. Eq. 416, 7th ed. 
 
 (s) Lynn v. Chaters (1837), 2 
 Keen, 521; Hart v. Herwig 
 (1873), 42 L. J. Ch. 457; L.R. 
 8 Ch. 860. 
 
 (<) Thombleson v. Black 
 (1837), 1 Jur. 198. 
 
 («) Marsh v. Milligan (1857), 
 3 Jur. N. S. 979. 
 
 (x) Taylor v. Eckersley (1876), 
 45 L. J. Ch. 527; 2 Ch. D. 302. 
 
SPECIFIC PERFORMANCE. 163 
 
 " The true ground of the doctrine in equity is that if 
 the Court found a man in occupation of land, or doing 
 such acts with regard to it as would, prima facie, make 
 him liable at law to an action of trespass, the Court would 
 hold that there was strong evidence from the nature of 
 the user of the land that a contract existed, and would 
 therefore allow verbal evidence to be given to show the 
 real circumstances under which possession was taken." 
 
 It would be strange indeed if the Court should permit a statute Equitable 
 passed " for prevention of many fraudulent practices " to be turned T ^jf f ™ cases 
 into an engine of fraud or oppression, although there is nothing 
 inequitable in taking advantage of the statute (y). In one case, 
 where the father of a prospective bride had satisfied another provi- 
 sion of the same section respecting writing applicable to promises 
 in consideration of marriage, and induced his daughter to wheedle 
 the prospective bridegroom out of his (the father's) written promise 
 to make a settlement, and having got it back into his own posses- 
 sion, suppressed it, the Master of the Eolls relieved the unwary- 
 husband, and when the father called upon the judge to observe the 
 statute, we are told " he humorously said, I do, I do " (z). 
 
 The material words of sect. 4 of the Statute of Frauds are : " No Statute of 
 action shall be brought upon any contract or sale of lands, Frauds, 
 tenements or hereditaments, or any interest in or concerning them, 
 unless the agreement upon which such action shall be brought, or 
 some memorandum or note thereof shall be in writing, and signed 
 by the party to be charged therewith, or some other person there- 
 unto by him lawfully authorised." The construction and operation 
 of the statute is the same iu equity as at law (a). The revolutionary 
 character of the doctrine now discussed is more apparent than real, 
 and rests upon this : that what in common law Courts could have 
 been given in evidence in support of a plea of leave or licence in 
 an action of trespass to land may be made the foundation of an 
 actual claim. In a late case (J), which pushes the application of 
 the doctrine to the very verge of the law, the defendant verbally 
 agreed to purchase a plot of land upon which a house was in course 
 
 (y) Wood v. Midgley (1854), inaccurate. 
 
 23 L. J. Ch. 553; 5 De G. M. & (a) Cranworth, L.C., Caton v. 
 
 G. 41. Caton (1865), 35 L. J. Ch. 292; 
 
 (z) Mallet v. Halfpenny ~L. K. 1 Ch. 146. 
 
 (1699), cited in Bawdes v. Am- (b) Dickinson v. Barrow 
 
 hurst (1715), Prec. Ch. at p. 404. (1904), 73 L. J. Ch. 701; [1904] 
 
 The report in 2 Vern. is obviously 2 Ch. 339. 
 
 M2 
 
164 
 
 LEADING CASES IN EQUITY. 
 
 Acts of 
 part-perform' 
 ance : — 
 payment of 
 money. 
 
 Marriage. 
 
 Possession. 
 
 Services 
 rendered. 
 
 Guarantees. 
 
 of being erected. She visited the premises from time to time and 
 gave directions as to alterations and additions which she desired to 
 have made, and which were in fact consequently made. Specific 
 performance was granted against her. In an earlier case, not 
 therein cited, a contrary view had been expressed and given effect 
 to (c) ; but the later decision seems to rest upon surer foundations, 
 for to allow her to plead that she was a trespasser would be to 
 admit a plea of her own wrong, and to raise an issue contrary to 
 the facts and the truth under circumstances which raised no 
 estoppel. The student must be cautioned to observe that the 
 intending tenant was defendant and not plaintiff. 
 
 As pointed out in the principal case, the payment of the 
 consideration money is not a sufficient act of part performance to 
 displace the statute (d). On the other hand, where a tenant 
 remains in possession after the determination of the term, upon a 
 promise of a new term, the payment of an increased rent takes the 
 case out of the statute (e). Payment of purchase-money confers 
 a lien upon the land in favour of the purchaser (/). 
 
 Contracts in consideration of marriage are not taken out of the 
 statute by the marriage of the parties (g). 
 
 Possession taken of land, especially if accompanied by acts of 
 ownership, is the usual form of part performance (h). It must, 
 however, be referable to the contract actually sought to be enforced 
 and must be taken with the acquiescence of the true owner (i). 
 
 In the case of contracts for personal services the rendering of 
 the services does not take the case out of the statute (k). 
 
 The granting of the credit under a verbal guarantee does not 
 exclude the operation of the statute (I). 
 
 (c) Phillips v. Alderton 
 (187S), 24 W. E. 8. 
 
 (d) Clinan v. Cooke (1802), 1 
 Soh. & L. 22. See O'Reilly v. 
 Thompson (1791), 2 Cox, 271; 
 Buckmaster v. Iiarrop (1802), 7 
 Ves. 341; (1807), 13 Ves. 456. In 
 the case of a sale of goods pay- 
 ment of earnest or of purchase- 
 money enables a verbal contract 
 to be proved. 
 
 (e) Nunn v. Fabian (1865), 35 
 L. J. Ch. 140; L. R. 1 Ch. 35; 
 Miller v. Sharp (1899), 68 L. J. 
 Ch. 322; [1899] 1 Ch. 622. 
 
 (/) Hose v. Watson (1864), 33 
 L. J. Ch. 385; 10 H. L. 0. 672; 
 post, p. 210. 
 
 (,?) Caton v. Caton (1865), 35 
 
 L. J. Ch. 292; L. R. 1 Ch. 65; 
 acquiesced in upon the appeal, see 
 (1867), 36 L. J. Ch. 886; L. R. 
 2 H. L. 127; Johnstone v. Map- 
 pin (1890), 60 L. J. Ch. 241. 
 
 (A) Lester v. Foxoroft (1700), 
 Colles, P. C. 108; 2 Wh. & 
 T. L. C. 460, 7th ed.; Coles v. 
 Pilkington (1874), 44 L. J. Ch. 
 385; L. R. 19 Eq. 174. 
 
 (i) Canning v. Catling (1864), 
 4 New Rep. 259; Mills v. Bay- 
 wood (1877), 6 Ch. D. 196. 
 
 (_k) Maddison v. Alderson 
 (1883), 52 L. J. Q. B. 737; 8 
 App. Cas. 467. 
 
 (0 Wain v. Warlters (1804), 5 
 East, 10; Shirley, L. C. 124. 
 
SPECIFIC PERFORMANCE. K 
 
 WOOLLAM v. HEARN. (1802) [59] 
 
 [7 Ves. 211 ; 2 Wh. & T. L. C. 513, 7th ed.] 
 
 In this case the plaintiff agreed to take a lease of a 
 house from the defendant at the yearly rent of 731. 10s., 
 and signed a memorandum to that effect. She brought an 
 action for specific performance, alleging that the figures 
 731. 10s. were inserted by mistake, and that the rent 
 agreed during the negotiations was to be at the same rate 
 as the defendant paid to his lessor, and claimed to be en- 
 titled to a lease at 601. a year. This was refused. In 
 delivering judgment, Grant, M.B,., said: "If this had 
 been a bill brought by this defendant for a specific per- 
 formance, I should have been bound by the decisions to 
 admit parol evidence, and to refuse a specific perform- 
 ance. But this evidence is offered, not for the purpose 
 of resisting, but of obtaining, a decree; first, to falsify 
 a written agreement; and then to substitute in its place 
 a parol agreement, to be executed by the Court. Thinking, 
 as I do, that the statute has been already too much broken 
 in upon by supposed equitable exceptions, I shall not go 
 further in receiving and giving effect to parol evidence, 
 than I am forced by precedent. There is no case in 
 .which the Court has gone the length now desired." 
 
 It will be observed upon a perusal of the report at large that the 
 bill was dismissed without prejudice to another bill for a lease at 
 the higher rent of 131. 10s. This, it would seem, was not open to 
 the plaintiff, who could not be permitted to approbate and 
 reprobate (m). 
 
 In cases of rectification upon the ground of mistake, where the Kectification. 
 subject-matter is land, the plaintiff cannot have relief in the nature 
 of specific performance with a parol variation if the mistake be 
 unilateral and the contract relates to a subject-matter bringing it 
 
 (m) Clowes v. Eigginson Ch. 329; 19 Ch. D. 233. See 
 (1813), 1 Ves. & B. 524; Mar- Evans v. Davis (1879), 48 L.J. 
 shall v. Serridge (1882), 51 L. J. Ch. 223; 10 Ch. D. 747. 
 
formance. 
 
 166 LEADING CASES IN EQUITY. 
 
 within the Statute of Frauds (rc). If the case be one of mutual 
 mistake, the statute is displaced (o). 
 Part per- If there has been a part performance within the doctrine before 
 
 adverted to, a contract may be rectified by the introduction of a 
 term established by parol evidence, and according to the practice 
 now established of giving relief where possible in one suit, granting 
 specific performance of the contract so varied ( p). But the student 
 must recollect that "Courts of Equity do not rectify contracts; 
 they can and do rectify instruments purporting to have been made 
 in pursuance of the terms of contracts. But it is always necessary 
 for a plaintiff to show that there was an actual concluded contract 
 antecedent to the instrument which is sought to be rectified ; and 
 that such contract is inaccurately represented in the instrument " (j). 
 
 [60] WOLVERHAMPTON (CORPORATION) v. EMMONS. 
 
 (1901) 
 
 [70 L. J. E. B. 429; (1901) 1 K. B. 515; 84 L. T. 407; 49 W. E. 
 
 553.] 
 
 The plaintiffs sued the defendant for specific per- 
 formance of a contract to build. The Court of Appeal 
 (A. L. Smith, M.R., Collins and Eomer, L.JJ.) held 
 that the case fell within the exception to the general rule 
 that the Court will not grant specific performance of a 
 building contract. Eomer, L.J., said: " In order to bring 
 himself within that exception, a plaintiff must establish 
 three things. The first is that the building work, of 
 which he seeks to enforce the performance, is defined by 
 the contract; that is to say, that the Court can sufficiently 
 see what is the exact nature of the work of which it is 
 
 (») May v. Piatt (1900), 69 L. J. Ch. 41; [1901] 1 Ch. 28. 
 
 L. J. Oh. 357; [1900] 1 Ch. 616; O) Olley v. Fisher (1886), 56 
 
 ante, p. 105. L. J. Ch. 208; 34 Ch. D. 367. 
 
 (o) Mortimer v. Shortall (?) James, V.-C, Mackenzie v. 
 
 (1842), 2 Dr. & War. 363; Exp. Coulson (1869), L. E. 8 Eq. at 
 
 National Provincial Bank of p. 375. See per Turner, L.J., 
 
 England, Re Boulter (1876), 46 Bentley v. Mackay (1862), 31 
 
 L. J. Bit. 11; 4 Ch. D. 241; L. J. Ch. 709; 4 De G. F. & 
 
 Johnson v. Bragge (1900), 70 J. 279. 
 
SPECIFIC PERFORMANCE. 167 
 
 asked to order the performance. The second is that the 
 plaintiff has a substantial interest in having the con- 
 tract performed, which is of such a nature that he cannot 
 adequately be compensated for breach of the contract by 
 damages. The third is that the defendant has by the con- 
 tract obtained possession of land on which the work is 
 contracted to be done." 
 
 The Court of Chancery at one time exercised a wider jurisdiction, Jurisdiction 
 
 and would grant specific performance of a contract to build where ™ specific 
 
 "DGrformiiiics 
 
 the work was not defined, as a contract to build a house " no worse 
 than" the one it was to replace (r). The existence of a wider 
 jurisdiction has never been disputed in modern times, and the 
 refusal to exercise the jurisdiction seems to be based rather on the 
 obvious distinction which exists between land, which may properly 
 he made the subject-matter of an order in rem, as indeed may a 
 specific chattel, and a subject-matter which is not susceptible of 
 identification (s) ; and also that an order for specific performance 
 might inflict an intolerable hardship on the defendant, which is 
 admitted as a defence in actions for the specific performance of 
 contracts relating to land (t). Further, the impossibility of super- 
 vising the due performance of the contract may have induced the 
 Court to act with caution. 
 
 The Court of Chancery disclaimed jurisdiction to carry on a Power to 
 business. It could, with a view to dissolve a partnership, appoint 8U P ervl8 6; 
 a receiver, and also a manager ; but the Court would not give any 
 directions as to the powers which the manager was to exercise, his 
 powers being restricted to those contained in the partnership 
 articles («). 
 
 The Court does not interfere with the internal management of a Company, 
 company further than is necessary to restrain acts ultra vires (x). 
 So long as the acts are valid, and not fraudulent upon a minority, 
 the Court will not interfere further than is necessary to ascertain 
 the wishes of the members (?/). 
 
 (r) Pembroke v. Thorpe p. 12. 
 
 (1740), 2 Swanst. 437, n. Or) Caiman v. Eastern Coun- 
 ts) See Hoare v. Dresser ties Ey. (1846), 16 L. J. Ch. 73; 
 
 (1859), 28 L. J. Ch. 611; 7 10 Beav. 1. 
 
 H. L. C. 290. (y) Foss v. Harbottle (1843), 
 
 (f) Webb v. Direct London and 2 Hare, 461 ; Menier v. Hooper's 
 
 Portsmouth Ry. (1852), 21 L. J. Telegraph Works (1874), 43 
 
 Ch. 337; 1 De G. M. & G. 521. L. J. Ch. 330; L. R. 9 Ch. 350; 
 
 («) Forman v. Homfray Cannon v. Trask (1875), 44 L. J. 
 
 (1813), 2 Ves. & B. 329; ante, Ch. 772; L. E. 20 Eg.. 669; 
 
168 
 
 LEADING CASES IN EQUITY. 
 
 Personal 
 services. 
 
 The Court will not grant specific performance of a contract to 
 render personal services (z), but if there be a negative stipulation 
 not to render personal services to any other person than the cove- 
 nantor, a breach of the negative stipulation will be enforced by 
 injunction (a). 
 
 Trust. 
 
 [61] 
 
 Voluntary 
 trusts of 
 freeholds. 
 
 ELLISON v. ELLISON. (1802) 
 [6 Ves. 656 ; 2 Wh. & T. L. C. 835, 7th ed.] 
 
 The plaintiffs were the settlor's widow and his sister, 
 and successfully invoked the assistance of the Court to 
 enforce a trust of leaseholds created by a voluntary deed. 
 The principles upon which the Court acts is thus stated 
 by Lord Eldon, L.C.: "I take the distinction to be, that 
 if you want the assistance of the Court to constitute you 
 cestui que trust, and the instrument is voluntary, you • 
 shall not have that assistance for the purpose of consti- 
 tuting you cestui que trust ; as upon a covenant to trans- 
 fer stock, &c, if it rests in covenant, and is purely volun- 
 tary, this Court will not execute that voluntary covenant; 
 but if the party has completely transferred stock, &c, 
 though it is voluntary, yet the legal conveyance being 
 effectually made, the equitable interest will be enforced 
 by this Court." 
 
 Owing to a forced construction of the statute 27 Eliz. c. 4, a 
 voluntary settlement of freehold lands could be defeated by a sale 
 
 North West Transportation Co. 
 v. Beatty (1887), 56 L. J. P. 0. 
 102; 12 App. Cas. 589. See 
 Burland v. Earle (1901), 71 L. J. 
 P. C. 1; [1902] A. C. 83. 
 
 (z) Clarke v. Price (1819), 2 
 Wils. Ch. 157. See Pickering v. 
 Ely (Bp.) (1843), 12 L. J. Ch. 
 271; 2 Y. & C. Ch. 249; Ryan 
 v. Mutual Tontine Westm. Cham- 
 bers Assn. (1892), 62 L. J. Ch. 
 
 252; [1893] 1 Ch. 116. 
 
 (a) Lumley v. Wagner (1852), 
 21 L. J. Ch. 898; 1 De G. M. 
 & G. 604; Whitworth Chemical 
 Co. v. Hardman (1891), 60 L. J. 
 Ch. 428; [1891] 2 Ch. 416. See 
 Davis v. Foreman (1894), 64 
 L. J. Ch. 187; [1894] 3 Ch. 654; 
 Ehrmann v. Bartholomew (1898), 
 67 L. J. Ch. 319; [1898] 1 Ch. 
 671. 
 
TRUST. 169 
 
 by the settlor to a purchaser for value even -with notice (5) ; but 
 unless the original settlement was in fact fraudulent, it cannot now 
 be so defeated by reason of the Voluntary Conveyances Act, 1893. 
 The settlement in the principal case being a settlement of lease- 
 holds at a rent, was a settlement for value (c). 
 
 "Where a settlor conveyed freehold lands and covenanted to Application 
 surrender copyholds, the settlement, which was voluntary, was of ri " e- 
 held good as to the freeholds, but the Court refused to give any 
 relief against a party claiming as devisee of the copyholds from the 
 settlor (d). Where property is incapable of effective disposition, it 
 is sufficient that the settlor has done all in his power to divest 
 himself of his interest in the property (e). No particular form of 
 words is necessary to constitute a voluntary trust (/). There is 
 another class of case which requires to be carefully distinguished, 
 and in which an heir, who is, in the eyes of a Court of Equity, 
 regarded as a volunteer (</), has bean held entitled to the assistance 
 of the Court to enable him to enforce an equitable right. "Where 
 a man upon his marriage covenants with trustees to lay out money 
 in the purchase of land and settle the land, when purchased, in 
 favour of his wife and children, with an ultimate limitation to 
 himself in fee, his heir could enforce the covenant on the footing 
 that it was an out-and-out conversion, provided there were uses or 
 trusts of the settlement subsisting at the death of the covenantor ; 
 he was not to be prejudiced by the laches of the trustees in 
 enforcing the covenant (h). 
 
 "Where a settlement is executed in consideration of a marriage Power to 
 which does not take place, and the trusts are in favour of the revoke trusts, 
 intended spouses and the children of the intended marriage, it is 
 competent to the settlor to put an end to the settlement and obtain 
 a re-conveyance of the property settled ()'). But if there are trusts 
 in favour of other parties the settlor cannot adopt this course (k). 
 
 (5) Doe v. Manning (1807), 9 153; Thorpe v. Owen (1842), 11 
 
 East, 59; Trowell v. Shenton L. J. Ch. 129; 5 Beav. 224; 
 
 (1878), 47 L. J. Ch. 738; 8 Ch. Baddeley v. Baddeley (1878), 48 
 
 D. 318. L- J- Ch. 36; 9 Ch. D. 113. 
 
 (c) Price v. Jenkins (1877), (g) Oxenden v. Compton 
 46 L. J. Ch. 805; 5 Ch. D. 619; {Lord) (1793), 2 Ves. Jr. 69. 
 Harris v. Tubb (1889), 58 L. J. (h) Barham v. Clarendon 
 Ch. 434; 42 Ch. D. 79. {Earl) (1852), 22 L. J. Ch. 1057; 
 
 (d) Jefferys v. Jefferys (1841), 10 Ha. 126. 
 
 Cr. & Ph. 138. (*) Essery v. Cowlard (1884), 
 
 (e) Kekewich v. Manning 53 L. J. Ch. 661; 26 Ch. D. 
 (1851), 21 L. J. Ch. 577; 1 De 191; Bond v. Walford (1886), 55 
 G. M. & G. 176. See Me Patrick, L. J. Ch. 667; 32 Ch. D. 238. 
 Bills v. Tatham (1890), 60 L. J. (k) McDonnell v. Meselrige 
 Ch. Ill; [1891] 1 Ch. 82. (1852), 22 L. J. Ch. 342; 16 
 
 (/) McFadden v. Jenkyns Beav. 346. 
 (1842), 12 L. J. Ch. 146; 1 Ph. 
 
170 
 
 LEADING CASES IN EQUITY. 
 
 Declaration 
 of trust by 
 settlor. 
 
 Belief at law, 
 
 A settlor may constitute himself a trustee by a declaration 
 of trust. An intention to give, however clearly expressed, 
 is not sufficient to constitute a person a trustee of property (Z). 
 An admission by a person that he holds property on behalf of 
 others will constitute him a trustee for them, and if that person 
 is the settlor he cannot object that there has been no formal 
 transfer of the fund (m). And where by reason of the disclaimer 
 by a trustee, the trust property revested in the settlor, it was held 
 that he took it subject to the trusts declared by him by the deed of 
 conveyance to the trustee (»). 
 
 Although no relief can be had in equity to compel the settlor to 
 perfect his assurance, relief by way of damages could be had in a 
 common law action (o) ; for at the common law an action might be 
 maintained in respect of a voluntary covenant under seal or a 
 voluntary bond (p). 
 
 [62] GLENORCHY (LORD) v. BOSVILLE. (1733) 
 
 [Cas. t. Talb. 3 ; 2 Wh. & T. L. C. 763, 7th ed.] 
 
 A testator directed his trustees (who took the legal 
 estate) if his granddaughter lived to marry a protestant of 
 the Church of England, and at the time of such marriage 
 be of the age of twenty-one years and upwards — which 
 event happened — then to convey certain real estate to the 
 uso of his said granddaughter for life without impeach- 
 ment of waste, voluntary waste in houses excepted; re- 
 mainder after her death to her husband for life ; remainder 
 to the issue of her body with remainders over. Lord 
 Talbot, L.C., held that if this had been a trust executed, 
 the granddaughter would have taken an estate tail by fore© 
 
 (V) Edwards v. Jones (1836), 
 5 L. J. Ch. 194; 1M.S Cr. 226; 
 MUroy v. Lord (1862), 31 L. J. 
 Ch. 798; 4 De G. F. & J. 264; 
 Jones v. Lock (1865), 35 L. J. 
 Ch. 117; L. R. 1 Ch. 25; Heart- 
 ley v. Nicholson (1874), 44 L. J. 
 Ch. 277; L. R. 19 Eq. 233. 
 
 (to) Thorpe v. Owen (1842), 
 11 L. J. Ch. 129; 5 Beav. 224; 
 Stone v. Stone (1869), 39 L. J. 
 
 Ch. 196; L. R. 5 Ch. 74; Coch- 
 rane v. Moore (1890), 59 L. J. 
 |Q. B. 377; 25 Q. B. D. 57. 
 
 (») Mallott v. Wilson (1903), 
 72 L. J. Ch. 664; [1903] 2 Ch. 
 494. See Dilrow v. Bone (1862), 
 31 L. J. Ch. 417; 3 Giff. 538. 
 
 (o) Re Patrick, BUU v. Tatham 
 (1890), 60 L. J. Ch. Ill; [1891] 
 1 Ch. 82.' 
 
 (?) Leake, Contracts, 99. 
 
TRUST. 171 
 
 of the gift to herself for life, followed by a gift to her 
 "issue," which he read as equivalent in this context to 
 a gift of the "heirs of her body," yet that this being an 
 executory trust, he decreed a strict settlement in which 
 the issue took by purchase, that is, to the granddaughter 
 for life, remainder to her husband for life, remainder to 
 the first and every other sons according to seniority in 
 tail, remainder to the daughters as tenants in common in 
 tail. Trustees to preserve contingent remainders were 
 also appointed, a formality now unnecessary. 
 
 " All trusts, to be sure, are in some sense executory, because the Distinction 
 nature of a trust implies something to be executed ; but here the -—Tift 6 .!!-. --3 
 settlor covenants to convey the property to trustees to be settled to executed 
 the uses after mentioned, as counsel shall advise. I admit, that trusts, 
 although this trust is so far executory, as to leave something to be 
 done, yet the party may afterwards have become, as it is styled, 
 ' his own conveyancer,' that is, he may have defined so clearly his 
 intention as to the limitations of the settlement, as to leave no 
 room for ambiguity or doubt ; if he had done so I must have 
 given to the words he has used their legal operation " (5). No 
 special inference can be drawn from the nature of the document, 
 whether it be a will, articles, or a post-nuptial settlement ; 
 although, no doubt, marriage articles do afford a presumption that 
 the issue of the marriage shall be provided for independently (r). 
 
 In the principal case the testator directed a settlement to be Expres- 
 made upon the "issue" of the granddaughter. This word, as * 10na: 
 Lord Talbot points out, is a word of flexible meaning. But the 1S8ue ' 
 words heirs of the body do not affect the construction of a trust heirs of 
 as executory, and will be treated as equivalent to the expression tlle D0< v ; 
 first and every other son according to seniority in tail(s). A 
 direction to make a settlement " as counsel shall advise," has been as counsel 
 held to import a strict settlement (<). In one case where there was snaU advise - 
 
 (?) Sugden, L.C., Rochfort v. War. 1. 
 
 Fitzmaurice (1842), 2 Dr. & (s) Trevor v. Trevor (1719), 1 
 
 War. at p. 21; Egerton v. P. Wms. 622; 5 Bro. P. C. 122; 
 
 Brownlow (Earl) (1853), 23 Rochfort v. Fitzmaurice (1842), 
 
 L. J. Ch. 348; 4 H. L. C. 1. 2 Dr. & War. 1. 
 
 (»•) Blackburn v. Stables (f) Rochfort v. Fitzmaurice 
 
 (1814), 2 Ves. & B. 367; Jer- (1842), 2 Dr. & War. 1. See 
 
 voise v. Northumberland (Duke) Davenport v. Davenport (1863), 
 
 (1820), 1 J. & W. 559; Rochfort 1 H. & M. 775. 
 v. Fitzmaurice (1842), 2 Dr. & 
 
172 
 
 LEADING CASES IN EQUITY. 
 
 Trust of 
 
 chattels. 
 
 Rectification 
 of settlements. 
 
 a legacy directed to be laid out in lands to be settled, and a devise 
 of lands to the same uses, the trust was held to be executory in the 
 former case but executed in the latter («). 
 
 It is frequently sought to settle chattels as heirlooms by reference 
 to the uses and trusts of land, with a declaration that the uses and 
 trusts of the lands shall be incorporated " so far as the rules of law 
 and equity shall permit." Words which would confer an estate 
 tail in the case of freehold land confer an absolute estate in the 
 case of chattels real, and an absolute interest in the case of chattels ; 
 but it has been sought to induce the Court to modify this construc- 
 tion by reason of the superadded words. These attempts hare 
 invariably failed (x). 
 
 Closely bound up with the principles of the leading case is the 
 equitable jurisdiction to rectify settlements, which is exercised 
 upon the following principles : — If a settlement be executed after 
 marriage purporting to be in pursuance of articles entered into 
 before marriage the articles will prevail over the settlement in case 
 of any discrepancy between them, and the settlement altered 
 accordingly ; if the settlement as well as the articles are executed 
 before the marriage, the settlement prevails upon the presumption 
 that there has been a new agreement; but if the settlement, 
 although executed before the marriage, be expressed to be made in 
 pursuance and performance of the articles, there the articles shall 
 control the settlement (y). Under the new procedure rectification 
 of the settlement and relief in respect of the settlement so rectified 
 may be obtained in one and the same action (z). 
 
 [63] MALIM v. KEIGHLEY. (1794, 1795) 
 
 [2 Ves. Jr. 333, 529.] 
 
 A testator made a residuary bequest in favour of his 
 "surviving daughter . . . hereby recommending it to 
 
 (u) Papillon v. Voice (1728), 
 2 P. Wms. 471. 
 
 (x) Christie v. Gosling (1866), 
 35 L. J. Ch. 667; L. R. 1 H. L. 
 279; Harrington (Countess) v. 
 Harrington (Earl) (1871), 40 
 L. J. Ch. 716; L.E.5H.L. 87; 
 Re Hill (Viscountess), Hill 
 (Vise.) v. Hill (1902), 71 L.J. 
 Ch. 417; [1902] 1 Ch. 807. 
 
 (y) Bold v. Hutchinson (1855), 
 
 25 L. J. Ch. 598; 5 De G. M. 
 & G. 558; Cogan v. Duffield 
 (1876), 45 L. J. Ch. 307; 2 Ch. 
 D. 44. See Thompson v. Hick- 
 man (1907). 76 L. J. Ch. 254; 
 [1907] 1 Ch. 550; Woollam v. 
 Hearne (1802), 7 Ves. 211 ; ante, 
 p. 165. 
 
 (z) Olley v. Fisher (1886), 56 
 L. J. Ch. 208; 34 Ch. D. 367. 
 
TRUST. 173 
 
 such daughter to dispose of the same after her own death, 
 and the determination of the several trusts aforesaid, 
 unto and among the children of my said daughter Annie 
 Malim, and my nephew John Lowe, of Ferry Bridge; 
 desiring that his reputed daughter Amelia, though born 
 before marriage, may be considered as one of his children." 
 Lord Loughborough, L.C., affirmed the decision of 
 Arden, M.R. (afterwards Lord Alvanley), that there was 
 a fiduciary power in favour of the children, and as that 
 power was not exercised by the donee, the children took 
 the residue of the personal estate in equal shares. In the 
 course of his judgment, the M.E. said: "Wherever any 
 person gives property, and points out the object, the 
 property, and the way in which it shall go, that does create 
 a trust, unless he shows clearly that his desire expressed 
 is to be controlled by the party, and that he shall have, 
 an option to defeat it." 
 
 In reading the report at large the student should recollect that 
 special powers were frequently regarded in equity as fiduciary. An 
 indirect consequence was the doctrine of illusory appointments. 
 At the date when the principal case was decided, the power could 
 not have been exercised validly in equity unless each child received 
 a substantial share of the property (a). 
 
 The case of Malim v. Keighley is usually cited as the leading Precatory 
 authority upon the law of precatory trusts. The cases relating to trust, 
 this branch of the law have tended of late years to restrict rather 
 than to enlarge its scope (1) ; and there are many who will share 
 the expressed opinion of one eminent equity judge, "that the 
 officious kindness of the Court of Chancery in interposing trusts 
 where, in many cases, the father of the family never meant to 
 create trusts, must have been a very cruel kindness indeed " (c). 
 Still, the doctrine is not abrogated, and although the leading case 
 
 0) See notes to Re Marsden's L. J. Ch. 799; [1895] 2 Ch. 370; 
 
 Trusts (1859), 28 L. J. Ch. 906; Re Conolly, Conolly v. Conolly 
 
 4 Drew. 594; ante, p. 145. (1909), 79 L. J. Ch. 148; [1910] 
 
 (6) Mussoorie Bank v. Raynor 1 Ch. 219. 
 
 (1882), 51 L. J. P. C. 72; 7 (c) James, L.J., Lambe v. 
 
 App. Cas. 321; Re Hamilton, Mames (1871), 40 L. J. Ch. 447; 
 
 Trench v. Hamilton (1895), 64 L. K. 6 Ch. at p. 599. 
 
174 
 
 LEADING GASES IN EQUITY. 
 
 Division of 
 
 trusts : — 
 Express trust, 
 
 Constructive 
 trust. 
 
 Form of 
 declaration 
 of trust : — 
 Statute of 
 Frauds. 
 
 was not followed upon at least one occasion (d), it cannot be treated 
 as overruled (e). 
 
 In the leading case the Court was dealing with an express trust, 
 the term precatory trust having reference only to the nature of the 
 words used. It would be unprofitable, as well as wearisome, to 
 discuss the cases at length. As was said by one very learned 
 writer (/), " the rule is, not that a trust is created, if the expres- 
 sions used exclude discretion (which is of course), but that precatory 
 expressions shall, prima facie, be considered to exclude discretion ; 
 and a precatory trust may be created, as will appear, though the 
 quantum of interest to be taken under it be uncertain, or the 
 objects of it unascertained." So equivocal an expression as the 
 word " advise " has been held obligatory as to the suggested 
 disposition of the property (g). 
 
 A person, not being a purchaser for value without notice, becomes 
 an express trustee of property from the time that he has notice that 
 it is trust property (h), and although he may be sued jointly with 
 the other trustees, he is liable in independent proceedings (i). Con- 
 structive trusts arise upon purchases in the name of a stranger (k) ; 
 joint purchases and investments (I). 
 
 In the case of lands, declarations of trust are affected by two 
 statutes. By sect. 7 of the Statute of Frauds, " all declarations or 
 creations of trusts or confidences of any lands, tenements, or 
 hereditaments shall be manifested and proved by some writing 
 signed by the party who is by law enabled to declare such trust, 
 or by his last will in writing, or else they shall be utterly void and 
 of none effect." And sect. 8 of the same statute contains the 
 following proviso : ' ' provided always that where any conveyance 
 shall be made of any lands or tenements by which a trust or con- 
 fidence shall or may arise or result by the implication or construc- 
 tion of law, or be transferred or extinguished by an act or operation 
 of law, then and in every such case, such trust or confidence shall 
 
 (rf) He Hutchinson and Tenant 
 (1878), 8 Ch. D. 540. 
 
 (e) Be Oldfield, Oldfield v. 
 Oldfield (1904), 73 L. J. Ch. 
 433; [1905] 1 Ch. 549; Comishey 
 v. Bowring Hanbury (1904), 74 
 L. J. Ch. 263; [1905] A. C. 84. 
 
 (/) Vaughan Hawkins, Wills, 
 at p. 160. 
 
 (g) Parker v. Bolton (1835), 
 5 L. J. Ch. 98. 
 
 (A) Sheridan v. Joyce (1844), 
 1 Jo. & Lat. 401 ; Andrews v. 
 Bousfield (1847), 10 Beav. 511; 
 
 Pooley v. Budd (1851), 14 Beav. 
 34. 
 
 («) Hardy v. Metropolitan 
 Land and Finance Co. (1872), 41 
 L. J. Ch. 257; L. R. 7 Ch. 427. 
 See Taylor v. Blaheloch (1886), 
 56 L. J. Ch. 390; 32 Ch. D. 560; 
 Me Champion, Dudley v. Cham- 
 pion (1892), 62 L. J. Ch. 372; 
 [1893] 1 Ch. 101. 
 
 (K) See Dyer v. Dyer (1788), 
 2 Cox, 92; ante, p. 132. 
 
 (0 See Lake v. Gibson (1729), 
 I Eq. Cas. Ab. 390, pi. 3, post, 
 p. 182. 
 
TRUST. 175 
 
 be of the like force and effect as the same would have been if this 
 statute had not been made ; anything hereinbefore contained to the 
 contrary notwithstanding." These provisions apply to land only, 
 pure personalty is outside their purview (m). The operation of the 
 Statute of Frauds has been restricted by the beneficent construction 
 of the Court of Equity, which has refused to permit this statute, 
 which was passed for the prevention of fraud, to be turned into an 
 engine of fraud or oppression. Accordingly, where it appears that 
 it would be a fraud in the trustee to deny a trust, the trust may be 
 established notwithstanding written evidence is not forthcoming (n), 
 for the statute does not require a trust of land to be constituted by 
 writing, but that it shall be manifested and proved by some writing, 
 in other words, it deals with procedure and not with form(o). 
 
 Land of freehold tenure (p) is also subject to the provisions of Statute 
 the Statute of Uses, s. 1 : " Where any person or persons stand or s " 
 
 be seised, or at any time hereafter shall happen to be seised of any 
 honours, manors, lands, tenements, rents, services, reversions, 
 remainders or other hereditaments to the use, confidence or trust 
 of any other person or persons, or of any body politic by reason of 
 any bargain, sale, feoffment, recovery, covenant, contract, agree- 
 ment, will or otherwise by any manner of means whatsoever it be, 
 that, in every such case, all and every such person or persons, and 
 bodies politic that have or hereafter shall have any such use, con- 
 fidence or trust, in fee simple, fee tail, for term of life or for years, 
 or otherwise, or any use, confidence or trust in remainder or 
 reverter, shall from henceforth stand and be seised, deemed and 
 adjudged in lawful seisin, estate and possession of and in the same 
 honours, castles, manors, lands, tenements, rents, services, rever- 
 sions, remainders and hereditaments, with their appurtenances to 
 all intents, constructions and purposes in the law of and in such 
 like estates as they had or shall have in use, trust or confidence of 
 or in the same : And that the estate, light, title and possession 
 that was in such person or persons that were or shall be hereafter 
 seised of any lands, tenements or hereditaments to the use, con- 
 fidence or trust of any such person or persons or of any body 
 politic, be from henceforth clearly deemed and adjudged to be in 
 
 O) Nab v. Nab (1718), 10 (o) Randall v. Morgan 
 
 Mod. 404; Cochrane v. Moore (1805), 12 Ves. 74; Smith v. 
 
 (1890), 59 L. J. Q. B. 377; 25 Matthews (1861), 30 L. J. Ch. 
 
 Q. B. D. 57. 445; 3 De G. F. & J. 139. See 
 
 (») Re Marlborough (JDuke), Leroux v. Brown (1852), 22 
 
 Davis m. Whitehead (1894), 63 L. J. C. P. 1; 12 C. B. 801. 
 L. J. Ch. 471 ; [1894] 2 Ch. 133; (j») Anon. (1579), Dyer, 369 a; 
 
 Rochefoucauld v. Boustead Baker v. White (1875), 44 L. J. 
 
 (1896), 66 L. J. Ch. 74; [1897] Ch. 651; L. R. 20 Eq. 166. 
 1 Ch. 196. 
 
176 LEADING CASES IN EQUITY. 
 
 him or them that have or hereafter shall have such use, confidence 
 or trust after such quality, manner, form and condition as they 
 had before in or to the use, confidence or trust that was in them." 
 Sect. 2 of the same statute transfers the use when the cestui que use 
 is one of several grantees to uses. Of this statute it has been said, 
 with some show of justice, that it " has had no other effect than to 
 add at most three words to a conveyance " (q). Where land is 
 conveyed to uses, and the grantee has active duties to perform, as 
 to receive and pay over the rents, or to raise a sum of money by 
 sale or mortgage, or to execute repairs, the statute is displaced (r). 
 And where, for the purposes of the trust, it is essential that the 
 trustees should take the legal estate upon recurring occasions, it 
 will be held to be vested in them during intermediate limita- 
 tions (s). It is settled law that the statute only executes the first 
 use, that is to say, if freehold land be limited to A. in fee, to the 
 use of B. in fee, to the use of C. in fee, the common law Courts 
 held that the statute executed the use in favour of B., who became 
 entitled to the legal estate, but that it did not execute the use in 
 favour of C, whose estate was described as void (i). It was this 
 estate, which the Courts of law refused to recognise (u), that the 
 Court of Chancery gave effect to under the name of a trust 
 estate (x). If the limitation be to A. and his heirs, to the use of 
 A. and his heirs, A. takes at the common law, and not by force of 
 the Statute of Uses (y) ; and if there be superadded a further use 
 to B., B.'s estate is equitable (z). If the limitation be to A. and 
 his heirs to the use of himself and others, the use is executed by 
 the statute (a). A limitation to A. and others to the use of A. is 
 executed by the express terms of sect. 2 of the statute. 
 Application The Statute of Uses does not apply to wills, but devises of free- 
 
 to wills. hold lands to uses have received the same construction as would 
 
 similar expressions if contained in conveyances inter vivos (b). 
 
 (?) Lord Hardwicke, L.C., (1855), 24 L. J. C. P. 187; 16 
 
 Hopkins v. Hopkins (1738), 1 C. B. 652. 
 
 Atk. at p. 591. See Leake, Law (x) Leake, Law of Land, 97 — 
 
 of Land, pp. 78—96. 100. 
 
 (r) White v. Parker (1835), (y) Orme's Case (1872), 42 
 
 4L. J. C. P. 178; 1 Bing. N. C. L. J. C. P. 38; L. B. 8 C. P. 
 
 573; Van Grutlen v. Foxwell 281. 
 
 (1897), 66 L. J. Q. B. 745; (s) Doe v. Passingham (1827), 
 
 £1897] A. C. 658. See Leake, 5 L. J. (O. S.) K. B. 146; 6 B. & 
 
 Law of Land, 94. C. 304; Cooper v. Kynooh (1872), 
 
 (s) Van Grutten v. Foxwell 41 L. J. Ch. 296; L. E. 7 Ch. 
 
 (1897), 66 L. J. Q. B. 745; 398. 
 
 [1897] A. C. 658. («) Hatfield's Case (1873), 42 
 
 (t) Tyrrell's Case (1557), Dyer, L. J. C. P. 148; L. E. 8 C. P. 
 
 155 a; Tud. L. C. Conv. 289. 306. 
 
 («) See Melling v. Leah (6) See Baker v. White (1875), 
 
TRUST. 177 
 
 The Statute of Uses only applies to land of freehold tenure. Mixed 
 "Where a conveyance (or gift) is made of property to which the eywes - 
 statute does not apply (as copyholds) and of freeholds, the statute 
 will apply to the latter but not to the former (c). 
 
 No one can be appointed an express trustee without his consent, Consent to 
 and if property be conveyed to a party he cannot be fixed as a a8 trufltee - 
 trustee unless there be an antecedent or contemporaneous declara- 
 tion or understanding that he was not to take beneficially (d). 
 No one can be forced to remain a trustee against his will, provided 
 his desire to retire is reasonable (e) ; but a trustee, knowing that a 
 breach of trust is contemplated, retires at his peril (/). Fixing 
 upon a person the character of trustee in the case of resulting or 
 constructive trusts (g) offers no exception, the consent being inferred 
 from the circumstances. 
 
 The trustee, being the absolute owner at law, could convey the Assignment 
 estate vested in him in respect of his office in any manner which 0Itruate8ta e - 
 the common law regarded as effective for that purpose. A devise 
 in general terms was frequently ineffective to pass » trust estate, 
 and it became a conveyancing expedient to make an express devise 
 of trust estates to the personal representative (A). It is still 
 advisable to do so in the case where it is known or suspected that 
 the testator is the sole or surviving trustee of copyhold lands (i). 
 All other trust estates have, since 31st December, 1881, vested in 
 the personal representative of a sole or surviving trustee, notwith- 
 standing any express devise thereof (7c). The Trustee Act, 1893, 
 contains provisions for the retirement of trustees and appointment 
 of new trustees by act of the parties or by the Court, and for the 
 vesting of the trust property in the new or continuing trustees. 
 
 An assignment of the beneficial interest must be in writing signed Assignment 
 by the assignor, or by will. This is by reason of sect. 9 of the ?* beneficial 
 Statute of Frauds {I). " interest. 
 
 44 L. J. Ch. 651; L. E. 20 Eq. (/) Head v. Gould (1898), 67 
 
 166. L. J. Ch. 480; [1898] 2 Ch. 250. 
 
 (c) Baker v. White (1875), 44 (g) See Dyer v. Dyer (1788), 
 
 L. J. Ch. 651; L. R. 20 Eq. 166; 2 Cox, 92; ante, p. 32; Keech 
 
 Me Brooke, Brooke v. Brooke v. Sandford, (1726), Sel. Cas. Ch. 
 
 (1893), 63 L. J. Ch. 159; [1894] 61; post, p. 179. 
 
 1 Ch. 43. (K) Braybrooke (Lord") v. In- 
 
 (<0 Fordyce v. Willis (1792), 3 skip (1803), 8 Ves. 417. 
 
 Bro. C. C. 577; Cocks v. Smith (i) Copyhold Act, 1894, s. 88. 
 
 (1834), 2 L. J. Ch. 205. See (k) Conveyancing and Law of 
 
 Me Tryon (1844), 7 Beav. 496. Property Act, 1881, s. 30. 
 
 (e) Me Knight's Trusts (1859), (I) Jerdein v. Bright (1861), 
 
 28 L. 3. Ch. 625; 27 Beav. 45; 30 L. J. Ch. 336; 2 J. & H. 325. 
 
 Me Chetwynd's Settlement (1902), See tit. Assignment, ante, 
 
 71 L. J. Ch. 352; [1902] 1 Ch. p. 37. 
 692. 
 
 B. N 
 
178 LEADING CASES IN EQUITY. 
 
 [64] FOX v. MACKRETH. (1789, 1791) 
 
 [2 Bro. C. 0. 400; 2 Cox, 158, 320; 4 Bro. P. 0. 258 ; 
 2Wh.&T. L. C. 709, 7th ed.] 
 
 A trustee for sale of a landed estate purchased the sub- 
 ject-matter, which he resold at a profit of over 25 per 
 cent. He was made accountable to the beneficiary for 
 the amount of this profit. 
 
 This case is usually referred to as the leading authority upon 
 the subject, but the report at large is seldom referred to, and it 
 does not seem to be generally realised that Lord Thurlow, L.C., 
 seems to have thought that there existed an independent equity 
 •which entitled the plaintiff to dispute the sale. "We have advanced 
 further than this. A trustee may purchase the subject-matter of 
 the trust or the interest of his beneficiary, but the latter may, if 
 he comes forward within a reasonable limit of time, challenge the 
 sale and obtain a reconveyance of the property upon repayment of 
 the consideration money together with interest, and claiming the 
 benefit of the intermediate income, or obtain payment of any other 
 profit made by the trustee (m). The trustee may, however, put 
 himself " at arm's length" with the beneficiary, in which case he 
 will be permitted to retain the benefit of the purchase (n). Long 
 delay in asserting his right to set the sale aside, after the relation 
 of trustee and beneficiary has come to an end, will amount to a 
 confirmation by the beneficiary (o). A trustee cannot sell to 
 himself, as a contract necessarily requires two independent parties ; 
 nor will a Court of Equity permit this rule to be disregarded in 
 substance by the intermediary of a nominal third party (p). 
 Sub-purchase A repurchase by a trustee from a, bona fide purchaser, although 
 by a trustee, regarded with a jealous eye, is valid (j) ; but so long as the matter 
 
 0») Cook v. Collingridge (1902), 72 L. J. Ch. 138; [1903] 
 
 (1823), Jac. 607; Re Norring- 1 Ch. 27. 
 
 ton, Brindley v. Partridge (o) Cairns, L.C., Thomson v. 
 
 (1880), 13 Ch. D. 654; Bening- Eastwood (1877), 2 App. Cas. 
 
 v. Baxter (1886), 56 L. J. 236; Roberts v. Tunstall (1845), 
 
 P. C. 13; 12 App. Cas. 167; 14 L. J. Ch. 184; 4 Ha. 257. See 
 
 Sillcstone and Haigh Moor Coal Chalmer v. Bradley (1819), 1 J. 
 
 Co. v. Edey (1899), 69 L. J. Ch. & W. 51. 
 
 73; [1900] 1 Ch. 167; Williams (p) Downes v. Grazebrook 
 
 v. Scott (1900), 69 L. J. P. C. (1817), 3 Mer. 200; Lewis v. 
 
 77; [1900] A. C. 499. See Re Hillman (1852), 3 H. L. C. 607. 
 
 Worssam, Hemery v. Worssam See ante, p. 69. 
 
 (1882), 51 L. J. Ch. 669. ( ? ) Re Postlethwaite, Postle- 
 
 (») Coles v. Trecothick (1804), thwaite v. Rickman (1889), 60 
 
 9Ves. 234. See Wright v. Carter L. T. 514; 37 W. E. 200. 
 
TRUST. 17& 
 
 Temains executory the trustee (and perhaps a person in a fiduciary 
 •capacity) can only acquire a defeasible interest in the property (r). 
 
 These principles have been applied where the parties stand in a Parties in a 
 fiduciary relation, as in the case of an agent for sale purchasing "duciary 
 the property entrusted to him (s). 
 
 The rule will be applied notwithstanding the person in a fiduciary Agency, 
 capacity has purchased through an agent (t), or from a person who 
 may be regarded as the agent of the seller (u). 
 
 A beneficiary impeaching a sale upon the principles of the leading Remedy of 
 ■case is entitled, if the property is still in the hands of the trustee, to beneficiary, 
 call for a reconveyance, or to have the property put up for sale at 
 an upset price equal to that given by the trustee, who will be 
 bound to his bargain if the property realizes less than the upset 
 price (x). As a general rule the trustee will be fixed with the costs 
 of suit (y). 
 
 KEECH v. SANDFORD. (1726) [65] 
 
 [Sel. Cas. Ch. 61 ; 2 Wh. & T. L. 0. 693, 7th ed.] 
 
 In this case the lessor refused to renew a lease for the 
 benefit of an infant, and the trustee applied for and ob- 
 tained a renewal of the lease to himself. The trustee' 
 was decreed to hold for the benefit of the infant, to whom 
 he was directed to assign upon being indemnified against 
 any covenants in the lease, and to account for the profits 
 he had made since the renewal. 
 
 There is no personal obligation upon a tenant for life to renew a Duty to 
 lease for the benefit of the estate (z), but the expenses of renewal renew. 
 
 (r) Delves v. Gray (1902), 71 Exp. Lacey (1802), 6 Ves. 625; 
 
 L. J. Ch. 808; [1902] 2 Ch. 606. Wright v. Carter (1902), 72 
 
 («) Brookman v. Rothschild L. J. Ch. 138; [1903] 1 Ch. 27. 
 (1831), 5 Bli. N. S. 165; ante, (y) Campbell v. Walker (1807), 
 
 p. 69. 13 Ves. 601; Wright v. Carter 
 
 (<) Downes v. Grazebrook (1902), 72 L .J. Ch. 138; [1903] 
 
 (1817), 3 Mer. 200; Lewis v. 1 Ch. 27. 
 Hiilman (1852), 3 H. L. C. 607. (s) Capel v. Wood (1825, 
 
 («) Luddy's Trustee v. Peard 1828), 3 L. J. 0. S. Ch. 91; 
 
 (1886), 55 L. J. Ch. 884; 33 4 Russ. 500. See Maig v. Ser- 
 
 Ch. D. 500. nan (1841), 8 CI. & F. 320; 
 
 (x) Campbell v. Walker (1800), Sarvey v. Harvey (1842), 5 
 
 5 Ves. 678; (1807), 13 Ves. 601; Beav. 134. 
 
 N2 
 
180 LEADING CASES IN EQUITY. 
 
 may be made a charge upon the settled estate (a). It ■would be 
 contrary to principles of a Court of Equity to impose upon an express 
 trustee the burden of providing personally for the expenses of a fine 
 upon obtaining a renewal, or to enter into a covenant involving him. 
 in a personal liability (J). At the same time, if a trustee has suffi- 
 cient funds available, it would be a breach of trust upon his part 
 not to renew, if renewal could be obtained upon reasonable terms (c). 
 Sect. 19 of the Trustee Act, 1893, unless the section is excluded, 
 empowers trustees of a settlement of renewable leaseholds to renew, 
 and makes it obligatory upon them to do so upon the requisition of 
 the parties beneficially entitled, but the Court would probably hold 
 that it was not a reasonable term, which is one of the conditions 
 necessary to the enforcing of the right, that the trustee should be 
 required to put his hand in his pocket to supply moneys necessary 
 to obtain a renewal. The right is subj ect to the following proviso : 
 "Where by the terms of the settlement or will the person in pos- 
 session for his life, or other limited interest, is entitled to enjoy the 
 same without any obligation to renew, or to contribute to the 
 expense of renewal, this section shall not apply unless the consent 
 in writing of that person is obtained to the renewal on the part of 
 the trustee.'' The section also makes provision for the paying, or 
 raising sufficient moneys to pay, for the renewal, and provides that 
 " no person advancing money upon mortgage purporting to be 
 under this power shall be bound to see that the money is wanted, 
 or that no more is raised than is wanted for the purpose." 
 Application The rule has been extended to renewals by persons in a fiduciary 
 
 of the rule. capacity, as a tenant for life (d). A mortgagee is not a trustee for 
 the mortgagor, and if not in possession may renew for his own 
 benefit; if he is in possession, the renewed lease is redeemable, as 
 it may be if some special equity can be shown (e). One of several 
 co-owners may renew a lease for his own benefit, unless there be 
 some special circumstances entitling the other owner to displace his 
 right (/). A partner taking a renewal of a lease in his own name 
 holds it for the benefit of the partnership (g). A lease renewed by 
 a mortgagor presumptively forms part of the security (A). 
 
 (a) Trench v. St. George dings v. Giddings (1827), 3 Kuss. 
 (1838), 1 Dr. & Wal. 417. 241. 
 
 (b) Worley v. Frampton (e) Nesbitt v. Tredermick 
 (1846), 16 L. J. Ch. 102; 5 Ha. (1808), 1 Ball & B. 29. 
 
 560. (/) lie Biss, Biss v. Biss (1903), 
 
 (e) Montford {Lord) v. 72 L. J. Ch. 473; [1903] 2 Ch. 
 
 Cadogan (Lord) (1810), 17 Ves. 40. 
 
 485; (1816), 19 Ves. 635; Mor- (g) Clegg v. Edmondson 
 
 timer v. Watts (1852), 21 L. J. (1857), 26 L. J. Ch. 673; 8 De 
 
 Ch. 169; 14 Beav. 616. G. M. & G. 787. See Partner- 
 
 (d) Pickering v. Vowles ship Act, 1890, s. 29. 
 
 (1783), 1 Bro. C. C. 197; Gid- (h) Smith v. Chichester (1842), 
 
TRUST. 181 
 
 A person held to be a trustee upon the principle of Keech v. Indemnity for 
 Sand/or d, is allowed to deduct from the sums for which he is ex P en ure - 
 accountable the value of lasting improvements (i). In the prin- 
 cipal case he was held entitled to recoup himself for his actual 
 expenditure for fines, and to be indemnified. 
 
 The general rule is that the tenant for life contributes to the fine Apportion- 
 in proportion to his enjoyment of the property (ft). A tenant for ment of fines, 
 life cannot recover in his lifetime advances in or towards payment 
 of the fine, but after his death his estate is entitled to be recouped 
 an apportioned part of the fine with compound interest for the 
 period between the renewal and his death, from which date simple 
 interest only will be allowed (I). Conversely, a tenant for life, or 
 his estate, may be made liable to contribute a proportion of the fine 
 actually paid, but his income cannot be impounded before the 
 ■occasion of giving security for the payment has arisen (m). In 
 some cases the settlement — usually a will — makes an express 
 provision respecting the fines payable upon renewal, but the general 
 rule of proportional contribution remains in force, except so far as 
 altered by the terms of the settlement (n). 
 
 If there is a. direction to renew, and renewal becomes imprac- Renewal 
 ticable, and the trustees have a discretion whether they will impracticable. 
 exercise the power or not, the tenant for life will become entitled 
 to the future income, and to any fund which may have been set 
 aside to provide for a fine; but if the direction to renew is 
 imperative the leaseholds must be sold, and the tenant for life will 
 only be entitled to the income arising from the investment of the 
 proceeds of sale and the renewal fund, if any (o). 
 
 Where the freehold reversion expectant upon a lease is pur- Purchase of 
 chased by a person in a fiduciary position he will be held a trustee reversion, 
 of the freehold interest, if the lease is renewable by contract or 
 custom, but not otherwise (p). 
 
 2 Dr. & War. 393; Hughes v. (») White v. White (1798), 
 
 Howard (1858), 25 Beav. 575. 4 Ves. 24; (1804), 9 Ves. 554; 
 
 (i) Mill v. Hill (1852), 3 H. L. Playters v. Abbott (1833), 3 L. J. 
 
 C. 828; Rowley v. Ginnever Ch. 57; 2 M. & K. 97; Jones v. 
 
 (1897), 66 L. J. Ch. 669; [1897] Jones (1846), 5 Ha. 440. 
 
 2 Ch. 503. (o) Morres v. Hodges (1860), 
 
 (V) Allan v. Backhouse (1813, 27 Beav. 625; Maddy v. Hale 
 
 1821), 2 V. & B. 65; affd. Jac. (1876), 45 L. J. Ch. 791; 3 Ch. 
 
 631. D. 325; Re Barber's Settled 
 
 (?) Jones v. Jones (1846), 5 Estates (1881), 50 L. J. Ch. 
 
 Ha. 440; Harris v. Harris 769; 18 Ch. D. 624. 
 
 (1863), 32 Beav. 333; Bradford (p) Bevan v. Webb (1905), 74 
 
 v. Brownjohn (1868), 38 L. J. L. J. Ch. 300; [1905J 1 Ch. 
 
 Ch. 10; L. E. 3 Ch. 711. 620. See Giddings v. Giddings 
 
 (m) Hudleston v. Whelpdale (1827), 3 Buss. 241. 
 (1852), 9 Ha. 775. 
 
182 
 
 LEADING CASES IN EQUITY. 
 
 Property 
 bound. 
 
 [66J 
 
 Where a person in a fiduciary position takes a lease of lands 
 part only of which were included in the former lease, the trust for 
 the other persons beneficially entitlod in the original term will not 
 extend to the additional lands (g). 
 
 Application 
 of the rule. 
 
 LAKE v. GIBSON; LAKE v. CRADDOCK. 
 
 (1729, 1733) 
 
 [1 Eq. Cas. Ab. 390, pi. 3 ; 3 P. "Wins. 158 ; 
 
 2 Wh. & T. L. C. 952, 7th ed.] 
 
 In this case a joint purchase of lands was made, and 
 the liability of the purchasers was fixed upon the 
 footing of ia partnership in land. The case is usually- 
 cited for the following statement by Sir Joseph Jekyll, 
 M.R., in the Court below: " Where two or more pur- 
 chase lands, and advance the money in equal proportions, 
 and take a conveyance to them and their heirs, that this 
 is a joint tenancy, that is, a purchase by them jointly of 
 the chance of survivorship, which may happen to the one 
 of them as to the other; but where the proportions of 
 the money are not equal, and this appears in the deed 
 itself, this makes them in the nature of partners; and 
 however the legal .estate survive, yet the survivor shall 
 be considered but as a trustee for the others, in propor- 
 tion to the sums advanced by each of them. So if two, 
 or more, make a joint purchase, and afterwards one of 
 them lays out a considerable sum of money in repairs 
 or improvements', and dies, this shall be a lien on the land, 
 and a trust for the representative of him who advanced 
 it; and that in all other cases of a joint undertaking or 
 partnership, either in trade, or any other dealing, they 
 were to be considered as tenants in common, or the sur- 
 vivors as trustees for those who were dead." 
 
 There is no equitable rule which will prevent an equitable interest 
 in co mm on merging in a commensurate legal joint estate, or con- 
 
 (?) Acheson v. Fair (1843), 3 Dr. & War. 512. 
 
TRUST. 183 
 
 versely of a joint equitable estate in a legal estate in common (r). 
 
 The principle of the leading case is applicable to the parties inter se, 
 
 but not necessarily to strangers (s). The rule is applicable to Topersonalty. 
 
 personalty (t). 
 
 The rale resting in presumption, a purchase in the name of Gift, 
 another or in joint names is not inconsistent with a gift, but the 
 burden of proof is upon those claiming under that title if 
 strangers (u). 
 
 The rule resting in presumption, evidence is admissible to prove Admission of 
 the circumstances under which a purchase was made with a view evKlell0e - 
 to establish or rebut a resulting trust, upon principles which have 
 been discussed elsewhere, and this notwithstanding the Statute of 
 Frauds (x). The passage in italics, quoted from the judgment in 
 the principal case, consequently requires modification. 
 
 ROBINSON v. PETT. (1734) [67] 
 
 [3 P. Wms. 249 ; 2 Wh. & T. L. 0. 606, 7th ed.] 
 
 In this case Lord Talbot, L.C., gave effect to the 
 " established rule that a trustee, executor, or administra- 
 tor shall have no allowance for his care and trouble." 
 
 The payment, under agreement or by law, as is enacted in many Eight to 
 British possessions, of a remuneration to a trustee, has been employ and 
 considered a reason for treating him with greater strictness than ^ ' ^ en ' 
 an unremunerated trustee (?/). Not only must a trustee perform 
 his duties gratuitously, but he is entitled to employ an agent at 
 the expense of his trust estate only when this course is warranted 
 by the circumstances (z). The fact that the trustees are remunerated 
 
 (r) Aveling v. Knipe (1815), (.r) Wray v. Steele (1814), 2 
 19 Ves. 441; Re Selous, Thorn- Ves. & B. 388; Harrison v. Bar- 
 son v. Selous (1901), 70 L. J. ton (1860), 30 L. J. Ch. 213; 1 
 Ch. 402; [1901] 1 Ch. 921. J. & H. 287; Uercier v. Mercier 
 
 (s) Powell v. Brodhurst (1901), (1903), 72 L. J. Ch. 511; [1903] 
 
 70 L. J. Ch. 587; [1901] 2 Ch. 2 Ch. 98. See Dyer v. Dyer 
 
 160. (1788), 2 Cox, 92; ante, p. 32. 
 
 (t) Robinson v . Preston (1858) , (y) See National Trustees Co. 
 
 27 L. J. Ch. 395; 4 K. & J. 585. of Austr. v. General Finance Go. 
 
 («) Soar v. Poster (1858), 4 (1905), 74 L. J. P. C. 73; 
 
 K. & J. 152. See Dyer v. Dyer [1905] A. C. 373. 
 (1788), 2 Cox, 92; ante, p. 32; (z) Weiss v. Dill (1834), 3 M. 
 
 Standing v. Bowring (1885), 55 & K. 26; Hophinson v. Roe 
 
 L. J. Ch. 218; 31 Ch. D. 282; (1838), 1 Beav. 180. See Re 
 
 ante, p. 77. Brier, Brier v. Evison (1884), 26 
 
184 
 
 LEADING CASES IN EQUITY. 
 
 Making a 
 profit out 
 of trust. 
 
 is not conclusive of their right to employ an agent and to pay him 
 a proper remuneration (a). 
 
 The principle of the leading case has been extended, and a 
 trustee will not be entitled to make a profit of any kind out of the 
 trust. One example is the rule which prevents a trustee from 
 making a profit out of a purchase of trust property from a 
 beneficiary (6). And where the interest and duty of a person are 
 in conflict (as where a testator appoints his surviving partner an 
 executor and trustee), it requires an express authority to entitle 
 the trustee to make any charge (c) ; and a solicitor who is appointed 
 a trustee cannot charge for his professional services unless 
 authorised to do so by the trust instrument (d). Clauses autho- 
 rising trustees to make a charge have met with unfavourable 
 criticism, but the Court has allowed trustees and persons in a 
 fiduciary capacity to make a, charge for remuneration for services 
 by a prospective or retrospective order (e). The amount of the 
 remuneration depends upon the terms of clause allowing the charge 
 to be made(/). A person in a fiduciary relation may retain 
 moneys paid to him in relation to an office unconnected with the 
 trust ; as where the trustee of a will was appointed partner in a 
 firm upon the nomination of his testator, who made his share trust 
 property of the estate, and was allowed to retain his salary as 
 salesman of the firm in addition to his remuneration fixed by the 
 will in respect of his work as managing partner, the testator being 
 cognisant of the fact and of the amount (</) ; so an agent is entitled 
 to retain customary commissions and discounts if known to the 
 principal (h). And where a limited company was appointed agent 
 
 Ch. D. 238; Re Aldridge, 
 Aldridge v. Aldridge (1894), 63 
 L. J. Ch. 465; [1894] 2 Ch. 97. 
 
 («) Wilkinson v. Wilkinson 
 (1825), 2 Sim. & S. 237; Cox v. 
 Bennett (1891), 39 W. E. 308. 
 
 (b) Fox v. Maekreth (1789), 
 2 Bro. C. C. 400; 2 Cox, 158, 
 320; 4 Bro. P. C. 258; ante, 
 p. 178. 
 
 (o) Stoeken v. Dawson (1843), 
 6 Beav. 371; afld. 17 L. J. Ch. 
 282. See Re Sykes, Sykes v. 
 Sykes (1909), 78 L. J. Ch. 609; 
 [1909] 2 Ch. 241. 
 
 (d) Re Ames, Ames v. Taylor 
 (1883), 25 Ch.D. 72 ; Re Corsellis, 
 Lawton v. Shoes (1887), 56 L. J. 
 Ch. 294; 34 Ch. D. 675; Re Fish, 
 Bennett v. Bennett (1893), 62 
 L. J. Ch. 977; [1893] 2 Ch. 413; 
 Clarkson v. Robinson (1900), 69 
 
 L. J. Ch. 859; [1900] 2 Ch. 722. 
 (e) Marshall v. Holloway 
 (1820), 2 Swanst. 432; Re Free- 
 man's Settlement Trust (1887), 
 57 L. J. Ch. 160; 37 Ch. D. 148; 
 Re Bignell, Bignell v. Chapman 
 (1891), 61 L. J. Ch. 334; [1892] 
 
 1 Ch. 59. 
 
 (/) Harbin v. Darby (1860), 
 29 L. J. Ch. 622; 28 Beav. 325; 
 Re Fish, Bennett v. Bennett 
 (1893), 62 L. J. Ch. 977; [1893] 
 
 2 Ch. 413; Re Sykes, Sykes v. 
 Sykes (1909), 78 L. J. Ch. 609; 
 [1909] 2 Ch. 241. 
 
 (g) Re Lewis, Lewis v. Lewis 
 (1910), 103 L. T. 495. See Re 
 Dover Coalfield Extension, Ltd. 
 (1907), 77 L. J. Ch. 94; [1908] 1 
 Ch. 65. 
 
 (A) Great Western Insce. v. 
 Cunliffe (1874), 43 L. J. Ch. 
 
TRUST. 18ft 
 
 to administer a landed estate, directors who -were a solicitor, 
 surveyor and auctioneer respectively, were allowed to retain pro- 
 fessional remuneration as against the principal (i). 
 
 Where a trustee has employed trust moneys for his own benefit, Right to 
 as in his trade or business, he may be charged with interest or with interest or 
 the profits, but the beneficiary must elect which he will take (k). P r0 8 " 
 Interest is chargeable upon the profits, calculated from the time 
 when the trustee receives them (I). 
 
 ELLIOT v. MERRYMAN. (1734) [68] 
 [Barnard. Ch. 78 ; 2 Wh. T. L. C. 896, 7th ed.] 
 The testator, after a general charge of his debts, pro- 
 ceeded: "I give all my real and personal estate to 
 Goodwin, to hold to him, his heirs, executors, ad- 
 ministrators, and assigns, chargeable nevertheless with tbe 
 payment of all my debts and legacies," and appointed 
 Goodwin his executor. After Goodwin's death the credi- 
 tors of the testator sought to charge purchasers from 
 Good'win of freeholds and leaseholds passing under the 
 will with the debts of the testator, but Verney, M.E., 
 dismissed the whole bill with costs to the purchasers of 
 the leaseholds, without costs as to the purchasers of the 
 freeholds. 
 
 In the principal case the distinction is adverted to between 
 leaseholds which passed to the executor virtute officii, and freehold, 
 which did not so pass. 
 
 In the principal case there was a charge of debts only, but Trusts for 
 freehold lands were sometimes devised upon trust to pay debts. A payment 
 trust for payment of debts excluded the operation of the Eeal ° e a - 
 Property Limitation Act, 1833, but by sect. 10 of the Eeal Property 
 
 741; L. Tt. 9 Ch. 525; Stubbs v. burn v. Wedderbum (1836), 
 
 Slater (1909), 79 L. J. Ch. 420; 2 Keen, 722; affd. (1838), 8 L. J. 
 
 [1910] 1 Ch. 195. Ch. 177; 4 M. & Cr. 41. See 
 
 (i) Bath v. Standard Land Co. Vyse v. Foster (1874), 44 L. J. 
 
 (1911), 80 L. J. Ch. 426; [1911] Ch. 37; L. K. 7 H. L. 318. 
 
 2 Ch. 618. (Z) Wightwick v. Lord (1857), 
 
 (£) Eeathcote v. Hulme 26 L. J. Ch. 825; 6 H. L. C. 217. 
 (1819), 1 J. & W. 122; Wedder- 
 
186 
 
 LEADING CASES IN EQUITY. 
 
 Revival of 
 
 statute-barred 
 
 debts. 
 
 Presumption 
 of payment of 
 debts. 
 
 Power to 
 sell or 
 mortgage. 
 
 Who may 
 execute 
 i.tatutory 
 power. 
 
 Limitation Act, 1874, this distinction, was abolished, and all debts, 
 whether secured by a trust for payment or merely charged upon 
 the land, must be sued for within twelve years unless the effect of 
 the statute is displaced by acknowledgment or other means. 
 
 A charge of debts, or a trust for payment of debts, does not 
 revive a debt which has become statute-barred in the testator's 
 lifetime, but only makes provision for the payment of debts then 
 actually due(m). It is open to a testator, however, to make 
 provision for the payment of a debt which is statute-barred by the 
 use of apt language (»). But although the realty may be charged, 
 the primary liability of the personalty to discharge the debt is not 
 affected (o). A charge of debts is only effective if there be realty 
 to which the charge can attach (p). Personal representatives, it 
 will be remembered, are entitled to pay statute-barred debts out of 
 personalty, thus reducing the fund primarily applicable to the 
 payment of debts generally. 
 
 A purchaser from persons entitled to sell lands for payment of 
 the testator's debts must assume, if the sale takes place within 
 twenty years, that there are still unsatisfied debts and that the 
 exercise of the power is regular (5). 
 
 Formerly, intricate questions arose whether the charge or direc- 
 tion to pay debts authorised a sale or mortgage, or both, and who 
 were the proper parties to convey the legal estate (r). In the case 
 of testators dyirig after the 6th August, 1897, the real estate held 
 in severalty vests in the personal representatives notwithstanding 
 any testamentary disposition by force of sect. 1 of the Land 
 Transfer Act, 1897. This enactment does not apply to copyholds, 
 so that it becomes necessary to consider the effect of the Law of 
 Property Amendment Act, 1859, in some detail, and also as some 
 questions of title to freehold lands depend upon it. By sect. 14, 
 unless the testator has made an express provision for the raising of 
 the money charged, it may be raised "by a sale or absolute 
 disposition by public auction or private contract .... or by a 
 mortgage .... or partly in one mode and partly in the other." 
 
 By the joint effect of sects. 14, 15 and 16 of the Law of Property 
 Amendment Act, 1859, tho power is to be exorcised by the devisees 
 
 O) Burke v. Jones (1813), 2 
 V. & B. 275;' O'Connor v. Haslam 
 (1855), 5 H. L. C. 170. 
 
 («) Sea Gofton v. Mills (1690), 
 Preo. Ch. 9. 
 
 (0) Tower v. Rous {Lord) 
 (1811), 18 Ves. 132; ante, 
 •p. 24. 
 
 (p) Soott v. Jones (1838), 4 
 
 CI. & F. 382; Exp. Smith, (Re 
 Hepburn (1884), 54 L. J. Q. B. 
 422; 14 Q. B. D. 394. 
 
 (?) Re Tanqueray Willaume 
 and Landau (1882), 51 L. J. Ch. 
 434; 20 Ch. D. 463. 
 
 (»•) See Leake, Law of Land, 
 112, 199. 
 
TRUST. 187 
 
 in trust, or the survivors of them, or any person appointed to 
 succeed to the trusteeship ; and if no trustee shall have been so 
 appointed, the executor, or any person in the chain of representa- 
 tion may execute the power (s). In order to pass the legal estate, 
 the testator must devise the land charged " for the whole of his 
 estate or interest therein " (<). An administrator is not invested 
 with the statutory power of sale («). Where the beneficial interest 
 is devised subject to a charge of debts, sect. 18 of the statute 
 requires the power to sell or mortgage to be exercised by the 
 devisee (a;). In the case of freehold land, the personal representa- 
 tive can now convey the legal estate, as before mentioned, by force 
 of sect. 1 of the Land Transfer Act, 1897. 
 
 The case rested upon the equitable principle, that as the pur- Power to 
 chaser had notice of the actual title of his vendor, he could not rest g ive receipts, 
 his title upon a legal interest discharged from the prior equity of 
 the creditor of the testator. It became usual, therefore, to give 
 the executor an express power to give receipts for purchase-money 
 which should exonerate the purchaser from him from seeing to tho 
 application of it. A similar clause was embodied, unless expressly 
 excluded, in the case of a sale or mortgage under any express or 
 implied trust by force of sect. 23 of the Law of Property Amend- 
 ment Act, 1859, and sect. 20 of the Trustee Act, 1S93, which 
 replaces an earlier enactment in similar terms, confers complete 
 exoneration upon the purchaser, and without the qualification 
 entitling parties to modify the effect of the section (y). The 
 student should observe that the power to give receipts here dis- 
 cussed did not affect the personal liability of the purchaser, but 
 only the right of the creditor to a remedy in rem against the 
 land (z). 
 
 Legacies are sometimes charged upon land. The provisions of Charge of 
 the Keal Property Amendment Act, 1859, apply to a legatee legacies- 
 seeking to enforce his claim against the land charged, as well as to 
 the case of a debtor seeking to enforce the benefit of a charge of 
 debts (a). 
 
 (s) Re Barrow-in-Furness (x) Colyer v. Finch (1856), 26 
 
 Corp. § Rawlinson's Cont. L. J. Ch. 65; 5 H. L. C. 905. 
 (1903), 72 L. J. Ch. 233; [1903] (y) See Hockey v. Western 
 
 1 Ch. 339. (1897), 67 L. J. Ch. 166; [1898] 
 
 (£) Me Adams and Ferry's 1 Ch. 350. 
 Cont. (1899), 68 L. J. Ch. 259; (z) See Davies v. Spurting 
 
 [1899] 1 Ch. 554. (1829), 1 Euss. & M. 64. 
 
 («) Re Clay and Tetley (1880), (a) Re Rebbech, Bennett v. 
 
 16 Ch. D. 3. Rebbech (1894), 63 L. J. Ch. 
 
 596. 
 
188 
 
 LEADING GASES IN EQUITY. 
 
 [69] 
 
 Antecedent 
 liabilities. 
 
 Indemnity 
 against fund. 
 
 MATTHEWS v. RUGGLES BRISE. (1910) 
 [80 L. J. Ch. 42 ; (1911) 1 Ch. 194.] 
 
 By arrangement between co-partners, a lease of pro- 
 perty was taken in the names of two of the partners who 
 became entitled to be indemnified by the other partners 
 against liability for rent and covenants. The partner- 
 ship assets and liabilities, including the lease, were sold 
 to a company which covenanted to indemnify the two 
 partners. An action was subsequently brought by the 
 landlord against the executors of the survivor of the 
 partners in whose name the lease had been taken for 
 arrears of rent and damages for breach of contract, 
 which action was compromised. The company was in- 
 solvent. It was held that the estate of the surviving 
 "trustee" partner was entitled to 1 be indemnified by the 
 other partners, the covenant of indemnity obtained from 
 the company not amounting to a novation or a release 
 of their original liability. 
 
 The right of a trustee to he indemnified, extends to liabilities 
 incurred prior to the date when he became formally a trustee (6). 
 
 The right of indemnity of a trustee as against the trust property, 
 where the right exists, is limited to that property (c). Where, 
 however, a beneficiary was entitled under two settlements executed 
 on her marriage, one being of her own property, the other of her 
 husband's property, and she became liable to indemnify the trustee 
 for a, breach of trust committed by her in respect of her own 
 property, the trustee was allowed to impound her interest under 
 the husband's settlement (d) ; for one transaction may be carried 
 out by several writings, or several transactions by one writing (e). 
 The right may be exercised by retainer out of capital or income, 
 irrespective of the question of its ultimate incidence (/). 
 
 (S) Be Bee Estates, Ltd., 
 Wright v. Dee Estates, Ltd. 
 (1911), 80 L. J. Ch. 461; [1911] 
 2 Ch. 85. 
 
 (e) Eraser v. Murdoch (1881), 
 6 App. Caa. 855. See Fox v. 
 
 Buckley (1876), 3 Ch. D. 508. 
 
 (a") Woodyatt v. Gresley 
 (1836), 8 Sim. 180. 
 
 (e) See Leake, Contracts, 116. 
 
 (/) Stott v. Milne (1884), 25 
 Ch. D. 710. 
 
TRUST. 189 
 
 Regard must be had to the terms of the trust. Thus, where Extent of 
 
 chapel trustees were entitled to an indemnity in respect of an(1 emnity 
 
 , •,-,,, ,, . ., ,. . , , against trust 
 
 moneys advanced by them, their security was limited to a charge property. 
 
 upon the title deeds, but a foreclosure or 6ale of the property was 
 refused, as that would be inconsistent with the continued existence 
 of the trust (g). A trustee is not entitled to be indemnified out of 
 a profit accruing to the trust fund, and unconnected with the 
 employment of the trust property (A). So where executors are 
 authorized to carry on the testator's trade, their right of indemnity 
 is limited to so much of the assets as may be lawfully employed in 
 the business (i). 
 
 In equity the right of indemnity of a trustee against the trust Subrogation, 
 estate may be made available by a third party, under the equitable 
 doctrine of subrogation where that right exists; as a solicitor 
 acting for trustees in respect of their trust estate (k). So where a 
 bank advanced to a trustee the necessary funds to enable him to 
 complete a purchase of land, which he was authorised to make, the 
 bank was allowed to enforce equitable charge in its favour created 
 by deposit of the title deeds; but the trust estate was given 
 priority over the bank to the extent to which moneys forming part 
 of the trust estate had contributed to the purchase-money (I). A 
 trustee cannot by contract waive his right of indemnity by 
 impounding the interest of a beneficiary who is primarily respon- 
 sible for the misapplication of a trust fund ; at any rate, where 
 this would operate to the prejudice of the other beneficiaries, who 
 may compel him to do so (m). 
 
 The right of a trustee to be indemnified is not lost by his retiring Right of 
 from the trust (n). And a retiring trustee cannot refuse to transfer trustees who 
 his trust fund upon vague allegations of liability, or of liabilities 
 
 (y) Darke v. Williamson (ft) Re Dee Estates, Ltd., 
 
 (1858), 25 Beav. 622. Wright v. Dee Estates, Ltd. 
 
 (A) Phayre v. Peree (1815), 3 (1911), 80 L. J. Oh. 461 ; [1911] 
 
 Dow, 116; Wiles v. Gresham 2 Ch. 85. See Re Blundell, Blun- 
 
 (1854), 23 D. J. Ch. 667 ; 2 Drew. dell v. Blundell (1888), 57 L. J. 
 
 258; on appeal, 24 L. J. Ch. 264; Ch. 730; 40 Ch. D. 370. 
 
 5 De G. M. & GL 770. (0 Re Pumfrey, Worcester City 
 
 (») Exp. Garland (1804), 10 and County Bk. v. Blick (1882), 
 
 Ves. 110; McNeillie v. Acton 52 L. J. Ch. 228; 22 Ch. D. 255. 
 
 (1853), 23 L. J. Ch. 11; 4 De See Ecclesiastical Commrs. v. 
 
 G. M. & G. 744; Dowse v. Pinney (1900), 69 L. J. Ch. 844; 
 
 Gorton (1891), 60 L. J. Ch. 745; [1900] 2 Ch. 736. 
 
 [1891] A. C. 190. See Strict (m) Fuller v. Knight (1843), 
 
 land v. Symons (1884), 53 L.J. 12 L. J. Ch. 182; 6 Beav. 205. 
 
 Ch. 582; 26 Ch. D. 245; Re («) Darke v. Williamson 
 
 Brooke, Brooke v. Brooke (1894), (1858), 25 Beav. 622; Barratt v. 
 
 64 L. J. Ch. 21; [1894] 2 Ch. Wyatt (1862), 31 L. J. Ch. 652; 
 
 600. 30 Beav. 442. 
 
190 
 
 LEADING CASES IN EQUITY. 
 
 Prospective 
 order for 
 indemnity. 
 
 Personal 
 indemnity. 
 
 Subject- 
 matters of 
 indemnity. 
 
 respecting which his right to indemnity is not obvious and 
 substantial (o). 
 
 Trustees are entitled to protection before their liability in respect of 
 the trust estate is sought to be onforced against them ( p). Accord- 
 ingly trustees may require to be guaranteed against the expenses 
 of furnishing accounts and information in respect of the trust 
 estate before complying -with a requisition to do so (q). In this 
 respect trustees are in a more favourable position than sureties, 
 who can only obtain a declaratory judgment after the liability is 
 ascertained by an adverse judgment fixing their liability (r). 
 
 A person undertaking the office of trustee at the request, express 
 or implied, of an adult is entitled to a personal indemnity from the 
 latter, as is recognised in the principal case (s), unless the right of 
 indemnity is excluded by the circumstances, as in the case of a 
 club in which the personal liability of members is limited to 
 the amount of their subscriptions (t). Where the person liable 
 to indemnify the trusteo is possessed of a general testamentary 
 power of appointment, and exercises it, the appointed fund, being 
 assets for the payment of debts generally (w), becomes available to 
 reimburse the trustee (x). A receiver appointed by the Court can 
 only look for his indemnity to the assets under the control of the 
 Court, he is not entitled to a personal indemnity from the persons 
 at whose instance he was appointed (y). 
 
 A trustee is entitled to an indemnity in respect of contracts 
 relating to the subject-matter of the trust. As an indemnity 
 against trade debts, where the business of u. testator is carried 
 on (z) ; or a liability for calls upon shares (a). In the case of 
 onerous property, the trustees will lose their right to be indemnified 
 
 (o) Wilson v. Parker (1846), 
 10 Jur. 979. See Hughes-Hallett 
 v. Indian Mammoth Gold Mines 
 Co. (1883), 52 L. J. Ch. 418; 
 22 Ch. D. 561. 
 
 (p) Robbs v. Wayet (1888), 
 36 Ch. D. 256. See Lacey v. 
 Hill, Crowley's Claim (1874), 43 
 L. J. Ch. 551; L. R. 18 Eq. 182. 
 
 (<?) Re Bosworth, Martin v. 
 Lamb (1889), 58 L. J. Ch. 432. 
 
 (r) Wolmershausen v. Gulliek 
 (1893), 62 L. J. Ch. 773; [1893] 
 2 Ch. 514. 
 
 (s) See also Hardoon v. Belilios 
 (1900), 70 L. J. P. C. 9; [1901] 
 A. C. 118. 
 
 (t) Wise v. Perpetual Trustee 
 Co. (1902), 72 L. J. P. C. 31; 
 [1903] A. C. 139; Rarington v. 
 
 Sendall (1903), 72 L. J. Ch. 396; 
 [1903] 1 Ch. 921. 
 
 («) Beyfus v. Lawley (1903), 
 72 L. J. Ch. 781; [1903] A. C. 
 411. 
 
 (a;) Williams v. Lomas (1852), 
 16 Beav. 1. See Warwick v. 
 Richardson (1842), 11 L. J. Ch. 
 351; 10 M. & W. 284; Sprange 
 v. Lee (1908), 77 L. J. Ch. 274; 
 [1908] 1 Ch. 424. 
 
 (y) Boehm v. Goodall (1910), 
 80 L. J. Ch. 86; [1911] 1 Ch. 
 155. 
 
 (z) Dowse v. Gorton (1891), 
 60 L. J. Ch. 745; [1891] A. C. 
 190. 
 
 (a) He Kershaw, Whittaker 
 v. Kershaw (1890), 60 L. J. Ch. 
 9; 45 Ch. D. 320. 
 
TRUST. 191 
 
 if they negligently omit to adopt available measures to get rid of 
 the liability (6). So trustees who bond fide advance money for the 
 benefit of the trust may claim to be indemnified for the amount 
 advanced (c), and under some circumstances for interest as well (d). 
 A trustee is entitled to be indemnified against damages recovered 
 against him by a third party for a tort committed by a servant of 
 the trustee in relation to the trust property (e). A trustee is 
 entitled to contribution, but not to an indemnity from his co-trustee, 
 but a trustee who is also a solicitor is not entitled to be indemnified 
 if he instigates or counsels the breach of trust (/) ; and a trustee 
 who has benefited by the breach of trust is primarily liable (</). 
 
 The Court possesses an enlarged jurisdiction to indemnify the Statutory- 
 trustee by force of sect. 45 of the Trustee Act, 1893, which replaces ^ bnmch 
 an earlier enactment to the same effect (h). As regards breaches f trust. 
 of trust committed as well before as after December 31, 1893, 
 ' ' where a trustee commits a breach of trust at the instigation or 
 request, or with the consent in writing, of any beneficiary, the 
 High Court may, if it thinks fit, and notwithstanding that the 
 beneficiary may be a married woman entitled for her separate use, 
 and restrained from anticipation, make such order as to the Court 
 seems just, for impounding all or any part of the interest of the 
 beneficiary in the trust estate by way of indemnity to the trustee 
 or person claiming through him." If the beneficiary instigates or 
 requests or consents in writing to an act or omission which is, in 
 itself, a breach of trust, as an investment in an unauthorised 
 security, the section applies; on the other hand, if the act or 
 omission is in itself lawful, but the liability of the trustee arises 
 by reason of negligence, as an advance of an excessive amount 
 upon mortgage or acting upon a faulty valuation, the beneficiary 
 
 (6) Rowley v. Adams (1839), (1862), 4 De G. F. & J. 259; Re 
 
 9 L. J. Ch. 34; 4M.4 Cr. 534. Raybould, Raybould v. Turner 
 
 (o) Exp. Chippendale, Re Ger- (1899), 69 L. J. Ch. 249; [1900] 
 
 man Mining Co. (1854), 4 De G. 1 Ch. 199. See Re Solomon, Nore 
 
 M. & G. 19; Re Pumfrey, v. Meyer, [1912] 1 Ch. 261. 
 
 Worcester City and County Bk. (/) Re Turner, Barker v. 
 
 v. Blick (1882), 52 L. J. Ch. Ivimey (1897), 66 D. J. Ch. 282; 
 
 228- 22 Ch. D. 255; Re Wrex- [1897] 1 Ch. 536; Heady. Gould 
 
 ham, Mold and Cormah's Quay (1898), 67 L. J. Ch. 480; [1898] 
 
 Ry. (1899), 68 L. J. Ch. 270; 2 Ch. 250. 
 
 [18991 1 Ch. 440; Bannatyne v. (g) Chillingworth v . Chambers 
 
 Mclver (1905), 75 L. J. Q. B. (1896), 65 L. J. Ch. 343; [1896] 
 
 120;ri9061 1 K. B. 103. 1 Ch. 685. 
 
 (dS Finch v. Prescott (1874), (h) Bolton v. Curre (1895), 64 
 
 43 L. J. Ch. 728; L. R. 17 Eq. L. J. Ch. 164; [1895] 1 Ch. 544. 
 
 554. See Monk v. Druce (1834,), See as to the earlier law, Raby v. 
 
 4L J El. Eq. 61; Fazakerly v. Ridehalgh (1855), 24 L. J. Ch. 
 
 Coulshaw (1871), 24 L. T. 773. 528; 7 De G. M. & G. 104. 
 
 (e) Benett v. Wyndham 
 
192 
 
 LEADING CASES IN EQUITY. 
 
 Indemnity 
 
 against 
 
 assignee. 
 
 may escape liability (»'). Writing is only required where the 
 trustee relies upon a consent; if the beneficiary verbally "insti- 
 gates or requests" the trustee to commit a breach of trust, the 
 enactment is applicable (k). The Court has impounded the interest 
 of a married woman (I), but will only exercise this statutory power 
 with caution and reluctance (m). As regards married women, the 
 statutory power is the only power (n). 
 
 An assignee from the beneficiary takes subject to the right of 
 the trustee to be indemnified (o), and this seems to be the case 
 also where the right of indemnity is claimed in respect of a breach 
 of trust (p). 
 Costs, charges The right of a trustee to be paid his costs, which are allowed as 
 and expenses, between solicitor and client, rests upon an implied contract, and 
 he can be deprived of them only in the event of misconduct (q). 
 As a rule, a beneficiary unsuccessfully suing a trustee, pays costs 
 as between party and party, and the trustee recovers the difference 
 between solicitor and client costs and party and party costs out of 
 the trust fund. But the circumstances may require that the costs 
 should be borne by a beneficiary who sues, and in exoneration of 
 the property of co-beneficiaries (r), or that the parties suing should 
 be visited with the costs as between solicitor and client, so as to 
 leave the trust fund unimpaired (s). 
 
 Trustees sometimes incur costs in matters arising in the adminis- 
 tration of a trust which are not connected with the proceedings. 
 These are technically known as "charges and expenses" (t). 
 Where the trust estate is so represented before a judge as to 
 
 Charges and 
 expenses. 
 
 (i) lie Somerset, Somerset v. 
 Poulett (Earl) (1893), 63 L. J. 
 Ch. 41; [1894] 1 Ch. 231. Cp. 
 Se Salmon, Priest v. Vppleby 
 (1889), 42 Ch. D. 351. 
 
 (k) Griffith v. Hughes 
 (1892), 62 L. J. Ch. 135; [1892] 
 3 Ch. 105; Re Somerset, Somer- 
 set v. Poulett (Earl) (1893), 63 
 L. J. Ch. 41; [1894] 1 Ch. 231. 
 
 (I) Griffith v. Hughes (1892), 
 62 L. J. ~ 
 105. 
 
 Ch. 135; [1892] 3 Ch. 
 
 (m) Bolton v. Curre (1894), 
 64 L. J. Ch. 164; [1895] 1 Ch. 
 544; Mara v. Browne (1895), 64 
 L. J. Ch. 594; [1895] 2 Ch. 69; 
 on appeal (1895), 65 L. J. Ch. 
 225; [1896] 1 Ch. 199. 
 
 («) Cocker v. Quayle (1830), 
 1 Buss. & M. 535; Leedham v. 
 Chawner (1858), 4 K. & J. 458. 
 
 (o) Re Exhall Coal Co., Re 
 
 Bleckley (1866), 35 Beav. 449. 
 
 (p) Fuller v. Knight (1843), 
 12 L. J. Ch. 182; 6 Beav. 193; 
 Fletcher v. Collis (1905), 74 L. J. 
 Ch. 502; [1905] 2 Ch. 24. See 
 Raby v. Ridehalgh (1855), 24 
 L. J. Ch. 528; 7 De G. H. & G. 
 104. 
 
 (g) Turner v. Hancock (1882), 
 51 L. J. Ch. 517; 20 Ch. D. 
 303. 
 
 (r) Re Chennell, Jones v. 
 Chennell (1878), 47 I>. J. Ch. 
 583; 8 Ch. D. 492. 
 
 («) Andrews v. Barnes (1888), 
 57 I>. J. Ch. 694; 39 Ch. D. 
 133. 
 
 (<) See Cross v. Kennington 
 (1848), 11 Beav. 89; Re Mansel, 
 Rhodes v. Jenkin (1885), 54 L. J. 
 Ch. 883; Re Beddoe, Downs v. 
 Cottam (1893), 62 L. J. Ch. 233; 
 [1893] 1 Ch. 547. 
 
TRUST. 193 
 
 entitle him to make an order binding the estate and the benefi- 
 ciaries, an order disallowing the costs of the trustees will preclude 
 them from recovering the costs in other proceedings relating to 
 the estate as charges and expenses (w). This can only happen in 
 proceedings in the Chancery Division. 
 
 The general rule is that a trustee must pay the costs of an appeal Costa of 
 where he is an unsuccessful appellant, although he may have been a PP ea l- 
 entitled to his costs in the Court below (x). The rule will be 
 departed from in exceptional cases (j/). 
 
 TOWNLEY v. SHERBORNE. (1634) [70] 
 
 [J. Bridgm. 35 ; 2 Wh. & T. L. C. 629, 7th ed.] 
 
 BRICE v. STOKES. (1805) 
 [11 Ves. 319 ; 2 Wh. & T. L. C. 633, 7th ed.] 
 
 In both these cases it was sought to make a trustee 
 who had joined in signing a receipt liable for trust funds 
 received by his co-trustee. In the first action the trustee 
 escaped liability, in the second action he was fixed with 
 liability. 
 
 Each executor has a distinct authority to deal with or dispose of Distinction 
 the whole estate without the concurrence of his co-executor (z). between 
 Accordingly, if he joins in signing a receipt, it will be taken to be an( j trustees 
 an admission that he retains control over the disposition of the 
 fund, and he will be fixed with liability to the extent of the amount 
 acknowledged to be due (a). So where an executor does any act 
 by which the trust fund, or a trust security, comes to the hands of 
 one or some only of several executors he will be held responsible 
 for any loss which may be incurred (£). Again, executors are not 
 
 («) Re Eodgkinson, Eodgkin- (1869), L. E. 4 Ch. 433; Solo- 
 son v. Eodgkinson (1895), 64 L. mon v. Attenborough (1911), 80 
 J. Ch. 663; [1895] 2 Ch. 190. L. J. Ch. 503; [1911] 2 Ch. 159. 
 
 (a;) Re Radnor's (Earl) (a) Per Lord Eldon in the 
 
 Trusts (1890), 59 L. J. Ch. 782; second principal case; Doyle v. 
 
 45 Ch. D. 402. Blake (1804), 2 Sch. & L. 231. 
 
 (y) Westminster (Corp.') v. (b) Chambers v. Minohin 
 
 St. George's, Hanover Square (1801), 7 Ves. 186; Langford v. 
 
 (Rector) (1909), 78 Z,. J. Ch. Gasooyne (1805), 11 Ves. 333; 
 
 581; [1909] 1 Ch. 592. Clough v. Bond (1838), 8 L. J. 
 
 (z) Smith v. Everett (1859), Ch. 51; 3 M. & Cr. 490; Candler 
 
 29 L. J. Ch. 236; 27 Beav. 446; v. Tillett (1855), 25 L. J. Ch. 
 
 Charlton v. Durham (Earl) 505; 22 Beav. 257. 
 
 K. O 
 
194 
 
 LEADING OASES IN EQUITY. 
 
 Title deeds. 
 
 Statutory- 
 protection. 
 
 Contribution 
 
 between 
 
 defaulters. 
 
 allowed to go to sleep, they must take active steps to secure the 
 safety of the estate (c). But where executors acting in good faith, 
 and in accordance with the usual course of business, put it in the 
 power of one of their number, whom they are justified in employing 
 professionally in the matter of the estate, to misappropriate the 
 trust funds, they are not liable for his defalcations (d). In one 
 peculiar case, a testator had empowered the defaulting executor to 
 sell land, and that executor employed his co-executor as his agent 
 to sell ; the agent sold the property and handed over the proceeds 
 to the defaulter, and the executor agent was held to be completely 
 discharged, notwithstanding the testator had declared that the 
 proceeds of sale were to be considered part of his personal estate (e). 
 
 At the common law, where several were interested in a title deed, 
 any co-owner, whatever might be his interest, could retain the 
 possession against his co-owners (/). A Court of Equity follows 
 the law in this respect, and will not require a trustee, if his 
 honesty is unimpeachable, to deposit documents of title in Court, 
 or take other measures to secure them (g) ; accordingly, a trustee 
 is not guilty of a breach of trust in permitting his co-trustee to 
 retain possession of them (h). This does not apply to bearer 
 securities to which different considerations apply (i). 
 
 By sect. 24 of the Trustee Act, 1893, which by the definition 
 clause (sect. 50) may also extend to executors, the liability of a 
 trustee is limited to moneys and securities actually received by 
 him, notwithstanding his signing a receipt for the sake of con- 
 formity, and to his own acts, receipts, neglects or defaults. This 
 section embodies the terms of a clause formerly inserted in wills 
 and in settlements by deed. It does not affect the general law. 
 But an executor may, by an appropriate provision, be excused from 
 liability (k), and the enactment above referred to expressly provides 
 that the provision is to be " without prejudice " to the terms of the 
 instrument, if any, creating the trust. 
 
 Trustees and executors are entitled to contribution upon the 
 
 (c) Styles v. Guy (1849), 19 
 L. J. Ch. 185; 1 Mac. & G. 422; 
 Egbert v. Butter (1856), 21 
 Beav. 560. 
 
 (d) Re Gasquoine, Gasguoine 
 V. Gasquoine (1894), 63 L. J. Ch. 
 377; [1894] 1 Ch. 470. 
 
 (e) Dames v. Spurling (1829), 
 1 Kusa. & M. 64. 
 
 (/) Foster v. Crabb (1852), 21 
 L. J. C. P. 189; 12 C. B. 136. 
 (^) Re Sisson's (Trusts, Jones 
 
 v. Trappes (1902), 72 L. J. Ch. 
 212; [1903] 1 Ch. 262. 
 
 (A) Cottam v. Eastern Cos. 
 Ry. (1860), 30 L. J. Ch. 217; 
 1 J. & H. 243. 
 
 (i) Lewis v. Nobbs (1878), 47 
 L. J. Ch. 662; 8 Ch. D. 591. 
 See Mendes v. Guedalla (1862), 
 31 L. J. Ch. 561; 2 J. & H. 259. 
 
 (k) Wilkins v. Hogg (1861), 
 3 Giff. 116; affd. 31 L. J. Ch. 
 41; Pass v. Dundas (1880), 43 
 L. T. 665. 
 
TRUST. 195 
 
 looting of suretyship, and a passive trustee being as blameworthy 
 as an active trustee, whose acts he should have supervised, the 
 amount of the loss will be divided equally between them, unless 
 one is a beneficiary, when he must indemnify the other trustee or 
 executor to the extent of his interest in the trust property (I). To 
 this rule there is one exception. Where a trustee, being a solicitor, 
 actively manages the trust estate, or counsels or instigates a breach 
 of trust, he must indemnify his co-trustee from all liability (m). 
 
 LEAROYD v. WHITELEY. (1887) [71] 
 
 [57 L. J. Ch. 390; 12 App. Cas. 727.] 
 
 In this case trustees advanced money upon the security 
 of a brickfield. The security was authorised for the in- 
 vestment of trust funds, but the trustees, who had acted 
 on the report of competent valuers, were held liable to 
 replace trust moneys which were lost by depreciation of 
 the property, on the footing that they had been negligent 
 in advancing so large a sum of money. In addressing 
 the House of Lords, Lord Watson said: "As a general 
 rule the law requires of a trustee no higher degree of dili- 
 gence in the execution of his office than a man of ordinary 
 prudence would exercise in the management of his own 
 private affairs. Yet he is not allowed the same discretion 
 in investing the moneys of the trust as if he were a person 
 sui juris dealing with his own estate. Business men of 
 ordinary prudence may, and frequently do, select invest- 
 ments which are more or less of a speculative character; 
 but it is the duty of a trustee to confine himself to the 
 class of investments which are permitted by the trust, 
 
 (J) Chillingworth v. Chambers (m) Re Turner, Barker v. 
 
 (1896), 65 L. J. Ch. 343; [1896] Ivimey (1897), 66 L. J. Ch. 282; 
 
 1 Ch. 685; Robinson v. Harhin [1897] 1 Ch. 536; Head v. 
 (1896), 65 L. J. Cii. 773; [1896] Gould (1898), 67 L. J. Ch. 480; 
 
 2 Ch. 415. Sea Re Home, Wilson [1898] 2 Ch. 250; Re Linsley, 
 v. Cox-Sinclair (1904), 75 L. J. Cattley v. West (1904), 73 L. J. 
 Ch. 25; [1905] 1 Ch. 76. Ch. 841; [1904] 2 Ch. 785. 
 
 02 
 
196 
 
 LEADING CASES IN EQUITY. 
 
 Extent of 
 power of 
 investment. 
 
 Judicial 
 extension of 
 power to 
 invest. 
 
 and likewise to avoid all investments of that class which 
 are attended with hazard. So, so long as he acts in the 
 honest observance of these limitations, the general rule 
 already stated will apply." 
 
 It is impossible to deal with the numerous reported cases which 
 have fixed the loss incurred in respect of an investment of trust 
 funds upon the trustees. Their liability has been established upon 
 the following grounds : — 
 
 1. That the investment was unauthorized. 
 
 2. That the trustees were negligent in the exercise of their power 
 
 and duty to invest. 
 
 3. That the investment was made with » view to benefit an 
 
 individual beneficiary without due regard to the safety of 
 the trust fund. 
 
 Trustees were at one time restricted to Government securities, 
 unless there was an investment clause authorizing other securities (n). 
 The choice of securities is now regulated by the Trustee Act, 1893, 
 s. 1, except so far as restricted or extended by the instrument of 
 trust (o). In one case where trustees were empowered to " employ " 
 the testator's property in any manner they thought fit, they were 
 held to be justified in financing a business which had been carried 
 on by their testator (^j). The exercise of a power by trustees must 
 be the joint act of all named (q). 
 
 The Court only administers a trust and will not extend the 
 power of the trustees as defined by the investment clause (be it 
 express or statutory) ; but it can and does exercise the power to 
 authorize trustees to make an interim investment in cases of 
 emergency, where peculiar circumstances have arisen not expressly 
 provided for by the trust instrument, and not anticipated by the 
 author of the trust (r). Thus, where there is a trust to lay out 
 money in the purchase of land in a particular locality, and a suitable 
 
 (») See Howe v. Dartmouth 
 (Earl) (1802), 7 Ves. 137; ante, 
 p. 29. 
 
 (o) See Hume v. Lopes (1892), 
 61 L. J. Ch. 423; [1892] A. 0. 
 112; Re Ovey, Ovey v. Ovey 
 (1900), 69 L. J. Ch. 804; [1900] 
 2 Ch. 524; Re Smith, Smith v. 
 Thompson (1895), 65 L. J. Ch. 
 159; [1896] 1 Ch. 71; Re Burke, 
 Burke v. Burke (1908), 77 L. J. 
 Ch. 597; [1908] 2 Ch. 248. 
 
 (jt>) Dickonson v. Player 
 (1838), C. P. C. 178. 
 
 (?) Re Milton, Gibbes v. Hale- 
 Hilton (1909), 79 L. J. Ch. 9; 
 [1909] 2 Ch. 548. 
 
 (r) Re Ovey, Ovey v. Ovey 
 (1900), 69 L. J. Ch. 804; [1900] 
 2 Ch. 524 ; Re New's Settlement, 
 Langham v. Langham (1901), 70 
 L. J. Ch. 710; [1901] 2 Ch. 534; 
 Re Tollemache (1903), 72 L. J. 
 Ch. 539; [1903] 1 Ch. 955. 
 
TRUST. 197 
 
 investment cannot be obtained there, the Court will sanction 
 purchases of land in other localities (s). 
 
 The principal case is one of numerous examples of trustees being Negligent 
 made liable for the negligent exercise of the power. It is the exercise of 
 primary duty of the trustees to protect the fund for the benefit of 
 all, and even where an investment clause in a marriage settle- 
 ment in terms not only empowered but required the trustees, upon 
 the requisition of the wife, to advance the trust funds to her 
 husband, the Court refused to compel them to do so, the husband's 
 pecuniary position having changed for the worse (t). So although 
 trustees are bound by the Settled Land Act, 1882, to invest capital 
 moneys in their hands according to the direction of the tenant for 
 life, they are entitled to refuse to do so if the security is of a 
 precarious character (u). 
 
 In the case of mortgages upon land trustees should not advance Proportion 
 more than two-thirds of the value if the security be land, but if of loan to 
 the security be land which derives additional value from buildings 
 or the like, the proportion of advance to value should be one-half. 
 As is pointed out in the principal case, this is not an absolute rule, 
 but indicates ' ' the lowest margin which in ordinary circumstances 
 a careful investor of trust funds ought to accept " (a;). A trustee 
 employing an independent agent is entitled to assume that he will 
 act skilfully, and thus escape liability by force of sect. 8 of the 
 Trustee Act, 1893 («/). 
 
 A trustee may be excused from liability for a loss upon invest- Exoneration 
 ment by a clause framed in sufficiently wide terms (z). But the °* trustee. 
 Courts have sometimes regarded clauses of this character with 
 considerable disfavour (a), although there is no doubt that the 
 Courts are less strict at the present day than was formerly the case. 
 
 By sect. 4 of the Trustee Act, 1893, Amendment Act, 1894, a. Trust security 
 
 trustee is not guilty of a breach of trust ' ' by reason only of his y ecomm S an 
 
 . . . - improper 
 
 continuing to hold an investment which has ceased to be an invest- investment. 
 
 ment authorized by the instrument of trust or by the general law." 
 
 (s) Maynwaring v. Mayn- 1 Ch. 389; Palmer v. Emmerson 
 
 waring (1746), 3 Atk. 414. " (1911), 80 L. J. Ch. 418; [1911] 
 
 (0 Boss v. Godsall (1842), 11 1 Ch. 758. 
 
 L. J. Ch. 391; 1 Y. & C. Ch. (y) Re Solomon, Nore v. 
 
 473. Meyer, [1912] 1 Ch. 261. 
 
 («) Re Hunt's Settled Estates, (z) Re Brazilian Rubber Plan- 
 
 Bulteel \. Lawdeshayne (1905), tations and Estates, Ltd. (1910), 
 
 74 L. J. Ch. 759; [1905] 2 Ch. 80 L. J. Ch. 221; [1911] 1 Ch. 
 
 418; affd. (1906), 75 I>. J. Ch. 425. 
 
 496; [1906] 2 Ch. 14. See (a) See Stretton v. Ashmall 
 
 Cadogan v. Essex {Earl) (1854), (1854), 24 L. J. Ch. 277 ; 3 
 
 23 L. J. Ch. 487; 2 Drew. 227. Drew. 9; Re Brier, Brier v. Evi- 
 
 (») See also Shaw v. Cates son (1882), 26 Ch. D. 238. 
 (1908), 78 L. J. Ch. 226; [1909] 
 
198 
 
 LEADING CASES IN EQUITY. 
 
 Improper 
 exercise of 
 power. 
 
 Eight of 
 beneficiary. 
 
 This enactment affords little (if any) more protection than trustees 
 enjoyed before, but it is a useful sedative to those who fulfil the 
 thankless and unremunerative task of trustees (b). 
 
 However wide a, power may be in terms it must be exercised 
 bond fide. Trustees empowered to invest money in any security 
 they think fit are only protected if they exercise that power 
 honestly (c). If they exercise the power bond fide, their acts cannot 
 be questioned although they derive a, personal benefit in the 
 result (d) ; on the other hand, if they fail to act with impartiality 
 they must answer for their improper conduct (c). 
 
 Where the investment is authorized, but the trustees in exercis- 
 ing their power of investment have acted in a negligent manner, as 
 the beneficiaries cannot reject the investment, they are entitled, 
 without giving notice to the trustee, to realize the security and fix 
 the trustee with liability for the loss, or a proportion of it. Where, 
 however, the security is unauthorized, the beneficiaries if sui juris 
 must elect to accept or reject the security, and if any of the bene- 
 ficiaries are under disability, as is the case with infants, there can 
 be no election, and the trustee is entitled to the security upon 
 replacing the capital (/). But the beneficiary has an equitable 
 lien upon an unauthorized investment for the amount of the trust 
 fund (g) ; and where a trustee mixes trust moneys with his own 
 moneys, the lien of the beneficiary extends over both funds (h). 
 Where trustees have no option regarding the security, the bene- 
 ficiary is entitled to call upon the trustee to purchase so much of 
 the authorized stock as would have been produced if he had done 
 his duty (i). But where trustees have a discretion as to the mode 
 of investment, as it is impossible to predicate what investment 
 would have been in fact made, the /trustee must account for the 
 money and interest (k). Where a trustee sells out an authorized 
 security, and invests the money in an unauthorized manner, the 
 
 (5) Re iChapman, Cooks v. 
 Chapman (1896), 65 L. J. Ch. 
 892; [1896] 2 Ch. 763. 
 
 (e) Re Smith, Smith v. Thomp- 
 son (1895), 65 L. J. Ch. 159; 
 [1896] 1 Ch. 71. 
 
 (d) Baud v. Fardell (1855), 25 
 L. J. Ch. 21; 7 De G. M. & G. 
 628. 
 
 (e) Knox v. MaoJcinnon (1888), 
 13 App. Cas. 753. 
 
 (/) Re Salmon, Priest v. 
 Uppleby (1889), 42 Ch. D. 351 ; 
 Power v. Banks (1901), 70 L. J. 
 Ch. 700; [1901] 2 Ch. 487; Re 
 Jenkins and Randall's Cont. 
 
 (1903), 72 L. J. Ch. 693; [1903] 
 2 Ch. 362. See Exp. Howe, Re 
 Lake (1903), 72 L. J. K. B. 213; 
 [1903] 1 K. B. 439. 
 
 (g) Francis v. Francis (1854), 
 5 De G. H.. & G. 108. See 
 Thorndike v. Hunt (1859), 28 
 L. J. Ch. 417; 3 De G. & J. 563. 
 
 (h) Frith v. Cartland (1865), 
 34 L. J. Ch. 301; 2 H. & M. 
 417. 
 
 (i) Byrchall v. Bradford 
 (1820), 6 Madd. 235. 
 
 (k) Robinson v. Robinson 
 (1851), 21 L. J. Ch. Ill; 1 De 
 G. M. &G. 247. 
 
TRUST. 199 
 
 beneficiary may claim to have the status quo restored (1), or he may 
 affirm the sale and claim the proceeds and interest (m). 
 
 Trustees are liable to make good out of their own pockets any Neglect 
 loss arising from their neglect to invest trust funds (n). And as to mvest - 
 equity regards that as done -which ought to be done, after the lapse 
 of a reasonable time, which is to be determined by the circum- 
 stances, parties damnified by the neglect of trustees to perform then- 
 duty to invest are entitled to have the rights of the parties adjusted 
 upon the same footing as if the trustees had not been negligent (o). 
 But delay in investing capital may be justified by the circum- 
 stances, as where it occurred by reason of an apprehended fall in 
 the funds during the pendency of the Crimean War (p). 
 
 The Debtors Act, 1869, which abolished imprisonment by way Punishment 
 of execution for a debt, gave power to make an order for the ° defaulting 
 detention of defaulting debtors who had the means to pay ; but the 
 statute created an exception in the case of a defaulting trustee, 
 and it was held that in that case the Court had no discretion, but 
 must direct his imprisonment for the statutory period of twelve 
 months. To remedy this state of affairs an amending statute — the 
 Debtors Act, 18Y8 — was passed, under which the power of the 
 Court is made discretionary. A negligent trustee will not be 
 punished, but a trustee failing to repay trust funds which he has 
 misappropriated will be sent to prison (q). By sect. 80 of the 
 Larceny Act, 1861, misappropriation by a trustee is made a 
 misdemeanour; but a prosecution cannot be commenced without 
 the sanction of the Attorney-General, or, in case that office be 
 vacant, of the Solicitor-General ; or if civil proceedings have been 
 commenced, with the sanction of the judge having seisin of the 
 matter. 
 
 Trustees are entitled to invoke the assistance of agents in making Employment 
 investments, but they may not delegate to the agent the duty of of agent 
 deciding upon the propriety or sufficiency of an investment (r). ™ mvest - 
 
 (Z) Phillipson v. Gatty (1848), v. Caldecott (1842), 12 L. J. Ch. 
 7 Ha. 516; on appeal (1850), 2 158; 1 Y. & C. Ch. 345; Mac- 
 's.. & Tw. 459. pherson v. Macpherson (1852), 16 
 
 (m) See Forrest v. Elwes Jur. 847; 1 Macq. H. L. 243. 
 
 (1799), 4 Ves. 492; Matthews v. (p) Wilhs v. Groom (1856), 
 
 Brise (1844), 12 L. J. Ch. 263; 25 L. J. Ch. 724; 3 Drew. 584. 
 
 6 Beav. 239. (g) Me Smith, Hands v. 
 
 (») Byrchall v. Bradford Andrews (1893), 62 L. J. Ch. 
 
 (1820), 6 Madd. 235; Robinson 336; [1893] 2 Ch. 1. See Re 
 
 v. Robinson (1851), 21 L. J. Ch. Strong (1886), 55 L. J. Ch. 
 
 Ill; 1 Be G. M. & G. 247; 553; 32 Ch. D. 342; Re Walker, 
 
 Aspland v. Watt (1855), 20 Beav. Walker v. Walker (1890), 60 
 
 474. L. J. Ch. 25. 
 
 (o) Parry v. Warrington (r) Rowland v. Witherden 
 
 (1820), 6 Madd. 155; Caldecott (1851), 21 L. J. Ch. 480; 3 Mac. 
 
200 
 
 LEADING CASES IN EQUITY. 
 
 Employment 
 of agent 
 to receive 
 trust moneys. 
 
 And where the employment of an agent is justified, the trustee 
 cannot be made liable for the capacity or honesty of the agent (s). 
 But he must exercise reasonable care in selecting the agent. Thus 
 a trustee advancing money on mortgage should not employ the 
 solicitor or valuer of the mortgagor (t). 
 
 The exigencies of administration may require that moneys should 
 be placed at bankers pending investment, and where the trustee 
 acts reasonably in go doing, and takes care that it is paid to a 
 separate account, he is not liable for the loss of the trust funds by 
 reason of the failure of the banker («) ; as where an administratrix 
 postponed the investment of a considerable sum of money owing to 
 an apprehended loss of capital upon realisation during the pendency 
 of the Crimean war (x), or where the money was in the hands of a 
 banker pending a change of trustees (y). But where trustees 
 allow substantial sums to remain in the hands of bankers for an 
 unwarrantable time they are liable for its safety (z). Executors 
 and administrators are allowed twelve months after the testator's 
 death within which to administer, and this is always regarded in 
 the computation of a reasonable time (a). A trustee may now, by 
 sect. 17 of the Trustee Act, 1893, appoint a solicitor as his agent 
 to receive and give a discharge for trust moneys or property, or 
 may appoint a banker or solicitor to be his agent to receive and 
 give a discharge for any money payable under a policy of assurance, 
 but the trustee becomes liable for his agent if he permits the money 
 or property to remain in the hands or under the control of the 
 banker or solicitor for a period longer than is reasonably necessary 
 to enable the banker or solicitor (as the case may be) to pay or 
 transfer the same to the trustee. The period which elapses from 
 the time when the trustee knows or ought to have known that the 
 agent has received the money is the determining factor in judging 
 whether the trustee is entitled to the protection afforded by the 
 enactment (b). 
 
 & G. 568; Speight v. Gaunt 
 (1883), 53 L. J. Ch. 419; 9 
 App. Cas. 1. See also per Lord 
 Watson in the principal case. 
 
 (s) Re Brier, Brier v. Evison 
 (1884), 28 Ch. D. 238; Re 
 Weall, Andrews v. Weall (1889), 
 58 L. J. Ch. 713; 42 Ch. D. 674; 
 Jobson v. Palmer (1882), 62 L. J. 
 Ch. 180; [1893] 1 Ch. 71. 
 
 (t) Sutton v. Wilders (1871), 
 41 L. J. Ch. 30; L. R. 12 Eq. 
 373; Fry v. Tapson (1884), 54 
 L. J. Ch. 224; 28 Ch. D. 268. 
 
 («) France v. Woods (1829), 
 
 Taml. 172. See Macdonnell v. 
 Harding (1834), 4 L. J. Ch. 10; 
 7 Sim. 178. 
 
 («) Wills v. Groom (1856), 25 
 L. J. Ch. 724; 3 Drew. 584. 
 
 (y} Adams \. Claxton (1801), 
 6 Ves. 226. See Lunham v. 
 Blundell (1857), 27 L. J. Ch. 179. 
 
 (z) Moyle v. Moyle (1831), 2 
 Euss. & M. 710; Drever v. 
 Mawdesley (1849), 18 L. J. Ch. 
 273. 
 
 (a) Johnson v. Newton (1853), 
 22 L. J. Ch. 1039; 11 Ha. 160. 
 
 (6) Re Sheppard, De Brimont 
 
TRUST. 201 
 
 In former times it was customary to insert an express clause Indemnity 
 
 exonerating trustees from liability for losses incurred by reason clause against 
 
 losses or 
 of the employment of agents. This clause, which had become defaults of 
 
 common form, is now in terms incorporated in every settlement, agent. 
 
 whether by deed or will, by force of sect. 24 of the Trustee Act, 
 
 1893. A very limited construction has been placed upon this 
 
 clause (c), but effect will be given to a clause exonerating a 
 
 trustee from liability for the acts or defaults of a duly constituted 
 
 agent (d). 
 
 A beneficiary is entitled to the fullest information respecting the Furnishing 
 
 state of investment of the property appropriated to meet his share, information 
 
 r r J rr r respecting 
 
 and if no appropriation has been made, of the whole of the trust investments. 
 
 fund(e). He is also entitled to call upon trustees to do all in their 
 power to enable him to obtain by himself information respecting 
 investments (/). If a trustee wilfully gives false information 
 respecting the state of investment of the trust fund, he may be 
 made to account on the footing that the trust fund was so invested, 
 as may also an agent to whom money is entrusted for invest- 
 ment^). 
 
 In re BARCLAY ; BARCLAY v. ANDREW. (1899) [72] 
 [68 L. J. Ch. 383 ; (1899) 1 Ch. 674.] 
 In this case trustees were fixed with compound interest 
 upon failing to observe the terms of a trust for accumu- 
 lation . 
 
 In the principal case, the rate of interest was fixed at 3 per cent. Eate of 
 It is doubtful whether this rate will be maintained, or whether the interest, 
 older practice under which interest was fixed at 4 per cent, will 
 not be restored in similar cases (h). So far as the trust fund or any 
 interest is invested in authorized securities, the beneficiary must 
 take the income actually received, be it greater or less than the 
 Court rate of interest (?'). 
 
 v. Harvey (1910), 80 L. J. Ch. (/) Me Tillott, Lee v. Wilson 
 
 52; [1911] 1 Ch. 50. (1891), 61 L. J. Ch. 38; [1892] 
 
 (c) Dix v. Burford (1854), 19 1 Ch. 86. 
 
 Beav. 409; Mehden v. Wesley (g) Bate v. Scales (1806), 12 
 
 (1861), 29 Beav. 213; Me Brier, Ves. 402; Moore v. Knight 
 
 Brier ,v. Evison (1882), 26 Ch. (1891), 60 L. J. Ch. 271; [1891] 
 
 D. 238. 1 Ch. 547. 
 
 (d) Pass v. Dundas (1880), 43 (A) Be Davy, Soiling sworth v. 
 L. T. 665. ' Davy (1907), 77 L. J. Ch. 67; 
 
 (e) Me Dartnall, Sawyer v. [1908] 1 Ch. 61. 
 
 Goddard (1895), 64 L. J. Ch. («) Learoyd v. Whiteley 
 
 341; [1895] 1 Ch. 474. 
 
202 LEADING OASES IN EQUITY. 
 
 Penalinterest. Where a trustee, having available funds in his hands, neglects 
 to pay dehts which bear interest, he will be fixed with the interest 
 payable on the debt, or the difference between the rate payable in 
 respect of the debt and the interest earned by the estate, if the 
 estate available for the discharge of the debt be in fact invested ; 
 but a trustee cannot be made so liable if there are other debts, 
 whether they bear interest or not, due from the estate (7c). "Where 
 an accounting party renders it impossible, by his act or neglect, to 
 ascertain the amount of interest chargeable, an arbitrary penal 
 rate exceeding 5 per cent, will be fixed (I) ; but 5 per cent, is the 
 general rate allowed where the trustee has employed the trust 
 estate in his business (m). 
 Wilful The liability, although a neglect of duty on the part of the 
 
 default. trustee, was not wilful default strictly so called, as is pointed out 
 
 in the judgment in the principal case. In fixing the defendants 
 with interest, upon further consideration the Court followed the 
 well-established practice of the Court of Chancery, which fixed a 
 trustee with interest upon uninvested balances although no claim 
 for interest was prayed by the bill (re). 
 
 [73] PERRINS v. BELLAMY. (1898) 
 
 [67 L. J. Ch. 649; (1898) 2 Ch. 521.] 
 
 On Appeal. (1899) 
 [68 L. J. Ch. 397 ; (1899) 1 Ch. 797.] 
 
 In this case trustees obtained relief in an action from 
 liability for a breach of trust under the provisions of 
 sect. 3 of the Judicial Trustees Act, 1896, which em- 
 powers the Court to grant this relief where trustees have 
 acted "honestly and reasonably, and ought fairly to be 
 
 (1887), 57 L. J. Ch. 390; 12 Ch. 332; [1903] 1 Ch. 565. 
 
 App. Cas. 727; ante, p. 195. (T) Walmsley v. Walmsley 
 
 (A) Ball v. Rallet (1784), 1 (1846), 3 Jo. & Lat. 556; ante, 
 
 Cox, 134; Turner v. Turner p. 21; Gray v. Haig (1855), 20 
 
 (1819), 1 J. & W. 39; Crackelt Beav. 219. 
 
 v. Bethune (1820), 1 J. & W. (m) Re Davis, Davis v. Davis 
 
 586; Re Stevens, Cooke v. Stevens (1902), 71 L. J. Ch. 539; [1902] 
 
 (1897), 67 L. J. Ch. 118; [1898] 2 Ch. 314. 
 
 1 Ch. 162. See Dimes v. Scott (») Uollingsworth v. Shake- 
 
 (1828), 4 Euss. 195; Re Appleby, shaft (1851), 21 L. J. Ch. 722; 
 
 Walker v. Lever (1903), 72 L. J. 14 Beav. 492. 
 
TRUST. 203 
 
 excused for the breach of trust." In the Court below 
 the plaintiffs, who were beneficiaries, were ordered to pay 
 the costs of the defendant trustees. The decision could 
 not be questioned on this point in the Court of Appeal, 
 as that Court affirmed the decision of the Court below 
 upon the main question. 
 
 It is the duty of trustees to use all reasonable diligence to obtain Neglect to 
 exclusive control of the trust estate (o), and whether the trustees have obtain control 
 or have not acted reasonably in this respect is a question to be 
 determined upon a consideration of all the circumstances of the 
 case ( p). Trustees are bound to take legal proceedings to enforce 
 payment or transfer to them of the trust property, and if they fail 
 to do so they must justify the omission, as that proceedings -would 
 have been fruitless (2), and the liability of the trustees is measured 
 by the sum which could have been recovered (r). Trustees may 
 be exonerated by the terms of the settlement from liability under 
 this head (s). 
 
 In allowing the trustees who had made good their claim to be Relief with 
 relieved under the statutory provisions to recover their costs, the costs. 
 Court gave effect to the principle that where a plaintiff has obtained 
 no substantial relief he may be ordered to pay the costs of an action 
 which is in substance abortive (t). And where a trustee was 
 relieved in part from liability, no order was made as to costs (u). 
 
 The fact that trustees have acted honestly is not sufficient ; they Principles 
 must also establish affirmatively that they have acted reason- upon which 
 ably (a;). The Court has then to consider whether, under all the wanted 
 circumstances proved, the case is a proper one for the exercise of 
 the jurisdiction, which is permissive and not obligatory, and to be 
 
 (0) McGachen v. Dew (1851), (t) Sprange v. Lee (1908), 77 
 
 15 Beav. 84. ,L. J. Ch. 274; [1908] 1 Ch. 424. 
 
 (p) Derbyshire v. Some In the case of an appeal, an ap- 
 
 (1853), 3 De G-. M. & G. ,80; pellant who succeeds upon a mere 
 
 Byrne v. Norcott (1851), 13 formal matter may be made to 
 
 Beav. 336. pay costs: Smith ■/. Pincombe 
 
 (?) Styles v. Guy (1849), 19 (1852), 3 Mac. & G. 653; Savery 
 
 L. J. Ch. 185; 1 Mac. & G. 422; v. King (1856), 25 L. J. Ch. 482; 
 
 Ee Brogden, Billing v. Brogden 5 H. L. C. 627. 
 
 (1888), 38 Ch. D. 546. (») Waite v. Parkinson (1901), 
 
 (r~) Maitland v. Bateman 85 L. T. 456. 
 
 (1844), 13 L. J. Ch. 273. (x) Re Stuart, Smith v. Stuart 
 
 (s) Paddon v. Richardson (1897), 66 L. J. Ch. 780; [1897] 
 
 (1855), 7 De G. M. & G. 563; 2 Ch. 583; Chapman v. Browne 
 
 Wyman v. Paterson (1900), 69 (1902), 71 L. J. Ch. 465; [1902] 
 
 L. J. P. C. 32; [1900] A. C. 1 Ch. 785. 
 271. 
 
204 
 
 LEADING CASES IN EQUITY. 
 
 Statutory 
 limitation of 
 action for 
 breach of 
 trust. 
 
 more favourably exercised in the case of a gratuitous trustee than. 
 of an unremunerated trustee (y). Appeals have been entertained, 
 it -was in the principal case, but it will have to be determined 
 hereafter whether the statutory power confers an absolute or a 
 judicial discretion upon the judge of first instance. Trusting to 
 the honesty of an agent (z), refusing to institute proceedings which 
 there was good reason to believe might be unsuccessful (a), or 
 where the amount at stake was small (b), have all been considered 
 as circumstances entitling the trustee to relief. But the enactment 
 does not entitle a trustee to play ducks and drakes with his trust 
 estate (c). The trustee can establish his right to be relieved from 
 liability in respect of part only of the loss (d). 
 
 By force of sect. 8 of the Trustee Act, 1888, "in any action or 
 other proceeding against a trustee, except where the claim is 
 founded upon any fraud or fraudulent breach of trust to which 
 the trustee was party or privy, or is to recover trust property or 
 the proceeds thereof still retained by the trustee and converted to 
 his use," proceedings must be taken within six years, even where 
 the plaintiff is a married woman restrained from anticipation ; but 
 the statute does not run against a beneficiary ' ' unless and until 
 the interest of such beneficiary shall be an interest in possession," 
 and "no beneficiary, as against whom there would be a good 
 defence by virtue of this section, shall derive any greater or other 
 benefit from a judgment or order obtained by another beneficiary 
 than he could have obtained if he had brought such action or other 
 proceeding and this section had been pleaded " (e). A trustee, where 
 he is not in terms precluded from pleading the enactment, may 
 plead it in answer to a breach of trust, as may an executor to a 
 claim founded upon a devastavit (f). It has also been applied to 
 
 (y) National Trustee Co. of 
 Australasia v. Gen. Finance Co. 
 (1905), 74 L. J. P. C. 73; [1905] 
 A. C. 373. 
 
 0) Re De Clifford {Lord), De 
 Clifford (Lord) v. Quitter (1900), 
 69 L. J. Ch. 828; [1900] 2 Ch. 
 707 ; Re Mackay, Griessemann v. 
 Carr (1910), 80 L.. J. Oh. 237; 
 [1911] 1 Ch. 300. See Re East 
 Dulwioh 7i5th Starr-Bowkett 
 Bg. Soe. (1898), 68 L. J. Ch. 
 196; Re Sheppard, De Brimont 
 v. Harvey (1910), 80 L. J. Ch. 
 52; [1911] 1 Ch. 50. 
 
 (a) Re Roberts, Knight v. 
 Roberts (1896), 76 L. T. 479. 
 
 (b) Re Grindey, Clews v. 
 Grindey (1898), 67 L. J. Ch. 
 
 624; [1898] 2 Ch. 593. 
 
 (c) Re Stuart, Smith v. Stuart 
 (1897), 66 L. J.Ch. 780; [1897] 
 2 Ch. 583; Re Live, Live v. Roe- 
 buck (1908), 78 L. J. Ch. 248; 
 [1909] 1 Ch. 328. 
 
 (d) Waite v. Parkinson (1901), 
 85 L. T. 456. 
 
 (e) Re Bowden, Andrew v. 
 Cooper (1890), 59 L. J. Ch. 815; 
 45 Ch. D. 444; Thome v. Heard 
 (1895), 64 L. J. Ch. 652; [1895] 
 A. C. 495; How v. Winterton 
 (Earl) (1896), 65 L. J. Ch. 832; 
 [1896] 2 Ch. 626; Re Lavies, 
 Ellis v. Roberts "(1898), 67 L.J. 
 Ch. 507; [1898] 2 Ch. 142. 
 
 (/) Re Swain, Swain v. 
 Bringeman (1891), 61 L. J. Ch. 
 
TRUST. 205 
 
 directors of a company (g). A beneficiary cannot avoid the statu- 
 tory limitation upon the footing that the trust property is in the 
 hands of the trustee, by treating an improper investment as having 
 been made by the trustee on his own account and out of his own 
 moneys, and claiming that to the extent of the money so invested 
 the trust estate is " still retained by the trustee " (h). 
 
 Vendor and Purchaser. 
 
 GAMES v. BONNER. (1884) [74] 
 
 [54 L. J. Oh. 517.] 
 
 In this case a Mrs. Williams, who was tenant in tail, 
 but was believed to be a tenant for life, and her son, who 
 was believed to be tenant in tail in remainder expectant 
 upon her death, but had in fact no title to the property, 
 purported to execute a mortgage of land to the plaintiff. 
 The son died without issue in the lifetime of his mother. 
 Tbe day after the death of the mother, which occurred on 
 January 28th, 1869, the plaintiff entered into possession 
 of the mortgaged property. On August 31st, 1880, the 
 plaintiff agreed to sell the property to the defendant, 
 making the mortgage deed th© root of title. An objection 
 was taken that the plaintiff had no title, but the plain- 
 tiff claimed that he had a valid title by reason of twelve 
 years' possession under the Statute of Limitations. The 
 action was commenced on June 20th, 1881, and specific 
 performance of the contract was granted. As the title 
 upon which the plaintiff succeeded was offered before the 
 
 20; [1891] 3 Ch. 233; Laaons (1894), 63 L. J. Ch. 291; [1894] 
 v. Wortnall (1907), 76 L. J. K. 1 Ch. 616. 
 
 B. 914; [1907] 2 K. B. 350. (h) Be Somerset, Somerset v. 
 
 (a) Be Lands Allotment Co. Poulett (Earl) (1893), 63 L. J. 
 
 Oh. 41; [1894] 1 Ch. 231. 
 
206 
 
 LEADING OASES IN EQUITY. 
 
 Specific 
 
 contract 
 
 respecting 
 
 title. 
 
 Second 
 reference 
 as to title. 
 
 action was commenced, the purchaser was made to pay 
 the costs of action. 
 
 The student should observe that a good title was offered and 
 existed in the vendor before the action was brought (i). 
 
 At the common law the vendor was bound to make out a title 
 according to the terms of his contract (k). But the principal case 
 shows that in equity a vendor could obtain specific performance of 
 his contract if he had in fact a valid title in himself. The cases go 
 further, and where a vendor has a partial interest in the property 
 agreed to be sold, and can procure the other parties interested to 
 join with him in conveying the property to the purchaser for the 
 interest contracted for, specific performance will be granted (l). 
 But a vendor having no interest in the property cannot force a 
 conveyance from the person actually entitled upon an unwilling 
 purchaser (m). This rule of the Court of Chancery was firmly 
 established in 1821 (n) — perhaps a generation earlier (o) — but 
 induced the protest of Lord Eldon, who refused to extend the scope 
 of the rule. 
 
 Where the master certifies that a good title has been shown, and 
 the purchaser's summons to vary is allowed, the vendor may 
 obtain a second reference with a view of showing a better and 
 sufficient title, unless the completion within reasonable limits of 
 time is impossible (p); and to this new title the vendor can take 
 further objections (3). A vendor who has failed to show a title 
 to part of the property sold has been allowed » further time to 
 perfect his title (r). On the other hand, the purchaser cannot take 
 any further objections if his application to vary the certificate of a 
 good title fails (s). 
 
 (i) See Att.-Gen. v. Avon 
 {Corp.) (1863), 33 L. J. Ch. 
 172; 3 De G. J. & S. 637. 
 
 (k) Forster v. Hoggart (1850), 
 19 L. J. Q. B. 340 ; 15 Q. B. 155. 
 
 (?) Graham v. Oliver (1840), 
 3 Beav. 124; Sidebotham v. Har- 
 rington (1841), 3 Beav. 524; 
 (1841), 10 L. J. Ch. 302; 4 
 Beav. 110; (1842), 5 Beav. 261; 
 Re Baker and Selmon's Cont. 
 (1907), 76 L. J. Ch. 235; [1907] 
 1 Ch. 238. See Fraser v. Wood 
 (1845), 14 L. J. Ch. 220; 8 Beav. 
 339. 
 
 (to) lie Bryant and Barning- 
 ham's Cont. (1890), 59 L. J. Ch. 
 636; 44 Ch. D. 218. See Re 
 Head's Trustees and Macdonald 
 
 (1890), 59 L. J. Ch. 604; 45 Ch. 
 D. 310. 
 
 (rc) Lechmere v. Brazier 
 (1821), 2 Jac. & W. 287. 
 
 (o) Pincke v. Curtis (1793), 4 
 Bro. C. C. 329. 
 
 (p) Egerton v. Jones (1830), 
 
 3 Sim. 392; 1 Euss. & M. 694; 
 Curling v. Flight (1848), 17 L. J. 
 Ch. 359; 2 Ph. 613. 
 
 (g) Brooke v. Anon. (1819), 
 
 4 Madd. 212. 
 
 (r) Brewster v. Woodall 
 (1878), Seton, Decrees, 2229, 
 form 8; Lyndhurst, L.C., Eger- 
 ton v. Jones (1830), 1 Eusa. & 
 M. at p. 695. 
 
 (s) Brooke v. Anon. (1819), i 
 Madd. 212. 
 
VENDOR AND PURCHASER. 207 
 
 Although these cases show that a vendor is permitted to enforce Non-dis- 
 a contract differing in material respects from that which the ev a ence 
 purchaser was entitled to assume he was entering into, non- of fraud, 
 disclosure may be treated as evidence of fraud. Thus, although 
 mortgages are merely matter of conveyance and not of title (<), 
 the non-disclosure of mortgages or other incumbrances has been 
 treated as evidence of fraud entitling the purchaser to rescind (a). 
 
 "The right to a good title is a right not growing out of the Acceptance 
 agreement between the parties, but which is given by law " ; °^ *^ e - 
 accordingly a purchaser may waive that right by negotiations after 
 knowledge of the infirmity of the vendor's title (a;). Where, how- 
 ever, there is a contract in express terms to show a good title, 
 there can be no waiver of this provision (y). 
 
 A vendor cannot be heard to object that he has no title to the Specific per- 
 property agreed to be sold(z), or to part of it (a), or that he cannot con^enratio^ 
 ■convey the interest agreed to be sold (b). It is the right of the 
 purchaser to acquire what the vendor can give, with compensation 
 for defective performance. This practice has been applied not only 
 to defects in the subject-matter (c), but to objections based upon 
 title (d). An objection based upon a, misdescription of the tenure 
 under which property agreed to be sold is held to be not merely an 
 answer to specific performance, but to entitle the purchaser to have 
 the contract rescinded. A purchaser who has agreed to buy free- 
 holds cannot be made to accept copyhold (e) or leasehold (/). A 
 purchaser of lands described as copyhold need not accept free- 
 
 (<) Townsend v. Champer- (6) Barrett v. Ring (1854), 2 
 
 nowne (1827), 1 Y. & J. 449; Sm. & Q. 43. 
 Beaufort {Duke) v. Glynn ( c ) LesUe v _ Tompson (1851), 
 
 (1856), 3 Sm. & G. 213. At law 2 E. J. Ch. 561: 9 Ha. 268. 
 
 the rule seems to have been dif- See In re Terry $ White's 
 
 ferent: Gunnis v. Erhart (1789), Cont. (1886), 55 L. J. Ch. 345; 
 
 1 H. Bl. 289. 32 Ch. D. 14. 
 
 («) Torrance v. Bolton ,„ ~ , ,-... ,,„,„■. 
 
 L872), 42 L. J. Ch. 177: L. E. „ <£> ^aham v._ Oliver (1840), 
 8 Ch. 118. 
 
 (1872), 42 L. J. Ch. 177; L. E. „ W «™«™ v unver ^ 01u; , 
 
 e nh na d -Beav. 124; Jones v. Evans 
 
 A n -i ■ v t >, ( 1848 )> 17 L - J - Ch - 469 ; IIor - 
 
 (*) Og%lv%e v. Foljambe rocks v . Riqhy (1878), 47 L. J 
 
 (1817), 3 Mer. 53, 64; Ellis v. ch . 800 . / &> D . V 
 Sogers (1884), 29 Ch. D. 661; , , ' , " , 
 
 In re Gloag and Miller's Cont. « Turquand v. Rhode s 
 
 (1883), 52 L. J. Ch. 654; 23 Ch. ^ 868 ->' "^ J / °?- 83 .°- „ S ,? e 
 
 f, oof. Price v. Macaulay (1852), 2 De 
 
 ,f; t „, , laao , G- M. & G. 339; Re Lidiard 
 
 (y) Cato v. Thompson (1882), and j ac -k son an a Broadley's Cont. 
 
 9 Q. B. D. 616. (1889), 58 L. J. Ch. 785; 42 
 
 (z) Bradley v. Munton (1852), Ch. D. 254. 
 15 Beav. 460. (/) Wright v. Howard (1823), 
 
 («) Western v. Russell (1814), 1 L. J. (0. S.) Ch. 94; 1 Sim. & 
 
 3 Ves. & B. 187. S. 190. 
 
208 
 
 LEADING GASES IN EQUITY. 
 
 Speoifio per- 
 formance with 
 indemnity. 
 
 Assignment 
 of benefit 
 of contract. 
 
 hold (g). A contract to sell a lease does not entitle the vendor to 
 compel the acceptance of an underlease [h). 
 
 In some cases the Court has granted specific performance with 
 an indemnity against a probable loss of ascertainable amount, but 
 this course is inadmissible where the matter objected to would 
 jeopardize the title of the purchaser (j). 
 
 Another instance in which the Court has regard to the substance 
 iB exemplified by the cases which permit of the assignment of the 
 benefit of a contract. Eegularly, the parties to a contract or their 
 representatives can alone be made parties to a suit for specific 
 performance (/«). But the immediate parties may agree that a new 
 party shall be substituted for an original party to the contract, 
 and the latter will be discharged by the effect of the agreement {I). 
 Again, unless the contract be in its terms or character not assign- 
 able in equity, the assignee may obtain specific performance (m), 
 but he must make his assignor a party to bind him by the 
 proceedings (»). 
 
 [75] SETON v. SLADE. (1802) 
 
 [7 Ves. 265 ; 2 Wh. & T. L. C. 475, 7th ed.] 
 
 In this case the purchase of a freehold estate was to 
 have been completed, and possession taken on the 12th 
 June, 1800. On the 7th June preceding the abstract was 
 delivered to the purchaser, who received it and made 
 objections upon it. He recovered his deposit in pro- 
 ceedings at the common law, whereupon the plaintiffs sued 
 for a completion of the contract, and succeeded. 
 
 Delay and Although the Court of Chancery did not regard time as being of 
 
 laches. the essence of a contract as regards sales of land, it required the 
 
 O) Ayles v. .Cox (1852), 16 
 Beav. 23. 
 
 (A) In re Seyfus and Masters' 
 Cont. (1888), 39 Ch. D. 110. 
 
 (») Fades v. Hooker (1818), 3 
 Madd. 19-3; Wilson v. Williams 
 (1857), 3 Jur. N. S. 810; Onions 
 v. Cohen (1865), 34 L. J. Ch. 
 339; 2H. & M. 354. 
 
 (/fc) Alder v. Fouracre (1818), 
 3 Swanst. 489; Tasker v. Small 
 (1837), 3 M. & Cr. 63. See De 
 Roghton v. Money (1866), L. B. 
 2 Ch. 164. 
 
 (0 Bolden v. Sayn (1815), 1 
 Her. 47; Howe v. May (1854), 
 18 Beav. 613. Cp. the cases at 
 law of the discharge of a contract 
 by novation: Leake, Contracts, 
 6th ed. 578. 
 
 (m) Nelthorpe v. Rolgate 
 (1844), i. Coll. 203; Shaw v. 
 Foster (1872), 42 K J. Ch. 9; 
 L. R. 5 H. L. 321. 
 
 (m) West Midland Ry. v. 
 Nixon (1863), 1 H. & M. 176; 
 Fenwiok v. Bulman (1869), L. E. 
 9Eq. 165. 
 
VENDOR AND PURCHASER. 209 
 
 plaintiff to sue within a reasonable time (o). The critical period of 
 time was not fixed by reference to any Statute of Limitations ( p), 
 but upon a consideration of all the facts of the case. "Whatever 
 the leaning of the Court in earlier times may have been, the 
 tendency of the modern cases has been to hold parties seeking the 
 assistance of the Court on bills for specific performance to the 
 rule of equity, which requires them to be prompt in asking such 
 assistance " (q). 
 
 By the Judicature Act, 1873, s. 25, sub-s. 7, "stipulations in 
 contracts, as to time or otherwise, which would not before the 
 passing of this Act have been deemed to be or to have become of 
 the essence of such contracts in a Court of Equity, shall receive in 
 all Courts the same construction and effect as they would have 
 heretofore received in a Court of Equity." 
 
 The terms of a contract may make time essential, and full effect Time made 
 
 will be given to that stipulation in a Court of Equity (r). essential by 
 
 a,gf rc sin ft n t . 
 
 Although time may not have been essential by the original Time made 
 contract, it is competent to either of the parties, by notice, to make essential by- 
 time essential (s) ; but to be valid the notice must fix a reasonable notlce - 
 time within which the contract is to be performed, and this is 
 dependent upon a consideration of all the facts (t). 
 
 The nature of the property sold may make time essential in Time 
 equity as well as at law. Of this character are leases for lives (m), lm P"8dly 
 sales of life annuities (a;), or reversions (y), or of a short term of 
 years (z). The Court of Chancery did not apply the rule to mer- 
 cantile contracts in which time was essential (a). So, where 
 property is purchased for immediate occupation, time will be 
 essential (ft). The student is referred to standard text-books for 
 other instances. 
 
 (o) Howe v. Smith (1884), 53 Ch. D. 589; Compton v. Bag- 
 Is. J. Ch. 1055; 27 Ch. D. 9; ley (1891), 61 L. J. Ch. 113; 
 Cornwall v. Henson (1900), 69 [1892] 1 Ch. 313. 
 L. J. Ch. 581; [1900] 2 Ch. 298. («) Wheeler v. D'Esterre 
 
 (j>) Talmarsh v. Mugleston (1814), 2 Dow, 359. 
 
 (1826), 4 L. J. (O. S.) Ch. 200. («) Withy v. Cottle (1823), T. 
 
 (?) Wigram, V.-C, South- & E. 78; 1 L. J. (O. S.) Ch. 17. 
 
 comb v. Exeter (Bp.) (1847), 16 (y) Newman v. Rogers (1793), 
 
 L. J. Ch. 378; 6 Hare, at pp. 219, 4 Bro. C. C. 391; Levy v. Stog- 
 
 220. don (1898), 68 L.. J. Ch. 19; 
 
 (r) Nokes v. Kilmorey {Lord) [1899] 1 Ch. 5. 
 
 (1847), 1 De G. & Sm. 444. (z) Hudson v. Temple (1860), 
 
 (s) Benson v. Lamb (1846), 15 30 L. J. Ch. 251; 29 Beav. 536. 
 
 Ii. J. Ch. 218; 9 Beav. 502. (a) Renter v. Sola (1879), 48 
 
 (0 Crawford v. Toogood X.. J. C. P. 492; 4 C. P. D. 239. 
 
 (1879), 49 L. J. Ch. 108; 13 (6) Tilley v. Thomas (1867), 
 
 Ch. D. 153; Green v. Sevin %,. R. 3 Ch. 61. 
 (1879), 49 L. J. Ch. 166; 13 
 
 K. P 
 
210 
 
 LEADING OASES IN EQUITY. 
 
 Extension 
 of time. 
 
 Rescission 
 the Court 
 for delay. 
 
 Where the parties agree to extend the time originally fixed, the 
 condition as to time is not deemed to be further waived than is 
 necessary to give effect to the new agreement (c). Negotiations for 
 completion, or in respect of other matters, may have the effect of 
 extending the time, although there is no definite agreement for 
 that purpose (d). 
 by "Although there has been a valid contract of sale, the vendor 
 . . . has a right to say to the purchaser ' either pay me the pur- 
 chase-money or lose the estate.' Such a decree has sometimes 
 been called a decree for cancellation of the contract ; time is given 
 by a decree of the Court of Equity, and now by a judgment of the 
 High Court of Justice ; and if the time expires without the 
 purchase-money being paid, the contract is cancelled by the decree 
 or judgment of the Court, and the vendor becomes again the 
 owner of the estate. ... If a valid contract is cancelled for non- 
 payment of the purchase-money after the death of the vendor, 
 the property will still be converted into personalty, because the 
 contract was valid at his death " (e). If a purchaser makes default 
 after judgment for specific performance, the vendor may obtain an 
 order for rescission of the contract (/). In the case of a defaulting 
 vendor, the purchaser may obtain the execution of the purchase 
 deed by a person appointed by the Court under sect. 14 of the 
 Supreme Court of Judicature Act, 1884 (g), and the conveyance by 
 force of this statutory provision is as effective as if executed by 
 the vendor himself. In the case of a solvent, but recalcitrant 
 purchaser, the Bankruptcy Act with its penal sanctions may be 
 usefully called in aid. 
 
 [76] MACKRETH v. SYMMONS. (1809) 
 
 [15 Ves. 329 ; 2 Wh. & T. L. C. 926, 7th ed.] 
 
 ROSE v. WATSON. (1864) 
 [33 L. J. Ch. 3S5; 10 H. L. C. 672.] 
 
 The first case decides that the vendor of land who exe- 
 cutes a conveyance without receiving payment of all the 
 
 (e) Nokes v. Kilmorey {Lord) 
 (1847), 1 De G. & Sm. 444. 
 
 (d) Gee v. Pearse (1848), 2 De 
 G. & Sm. 325; Mruner \. Moore 
 (1903), 73 L. J. Ch. 377; [1904] 
 1 Ch. 305. 
 
 (e) Jessel, M.E., Lysaght v. 
 Edwards (1876), 45 L. J. Ch. 
 
 554; 2 Ch. D. 499, at p. 506. 
 See Fletcher v. Ashbarner (1779), 
 1 Bro. C. C. 495; ante, p. 47. 
 
 (/; Olde v. Olde (1903), 73 
 L. J. Ch. 81; [1904] 1 Ch. 35. 
 
 (g) Savage v. Norton (1907), 
 77 L,. J. Ch. 198; [1908] 1 Ch. 
 290. 
 
VENDOR AND PURCHASER. 211 
 
 purchase-money has an equitable lien upon the land for 
 the unpaid purchase-money. 
 
 The second case decides that a purchaser of land before 
 the conveyance of the property to him has an equitable 
 lien for so much of the purchase-money as he has paid. 
 
 At the common law, the payment of the purchase-money and Lien : 
 the execution of the conveyance are presumptively to be contem- la favour of 
 poraneous acts (h). It would seem to follow as a necessary con- T n 
 sequence that a vendor who, under this rule, could refuse to 
 execute the conveyance without receiving the purchase-money 
 would have to establish some special equity to a lien, but the rule 
 of the Court is otherwise, and an unpaid vendor is prima facie 
 entitled to a lien, and it lies upon the purchaser to displace it (i). 
 The nature of the transaction may be inconsistentVith the existence 
 of a lien (&), or the lien may be deemed to have been waived by 
 subsequent transactions (Z). As between the real and personal 
 representatives of the purchaser the land bears the burden of the 
 lien which must be discharged by the real representative, unless 
 the purchaser has signified a contrary intention (m). 
 
 The doctrine of the vendor's lien for unpaid purchase-money has Application 
 been held to extend to a reversionary interest in a trust fund (n). *° personal 
 It is difficult to see how the doctrine can extend to the sale of 
 chattels as defined by sect. 62 of the Sale of Goods Act, 1893, of 
 which sect. 43 provides in express terms : " The unpaid seller of 
 goods loses his lien or right of retention thereon (a) when he 
 delivers the goods to a carrier or other bailee or custodian for the 
 purpose of transmission to the buyer without reserving the right 
 of disposal of the goods ; (b) when the buyer or his agent lawfully 
 obtains possession of the goods." The Sale of Goods Act, 1893, 
 negatives also the notion of any hen against the buyer of 
 
 (A) Glazebrook v. Woodrow 27 L. J. Ch. 148; 1 De G. & J. 
 
 (1799), 8 T. E. 366; Mattock 655; Be Brentwood Brick and 
 
 v. Kinglake (1839), 8L.J.Q.B. Coal Co., Howe's Claim (1877), 
 
 215; 10 A. & E. 50. 46 L. J. Ch. 554; 4 Ch. D. 562. 
 
 (i) Hughes v. Kearney (1803), (I) Cood v. Bollard (1821), 9 
 
 1 Sch. & L. 132; Kennedy v. Pri. 544; 10 Pri. 109. 
 Green (1834), 3 My. & K. 699; (m) Eeal Estate Charges Act, 
 
 Frail v. Ellis (1852), 22 L. J. 1867, s. 2; Eeal Estate Charges 
 
 Ch. 467; 16 Beav. 350. See Act, 1877; ante, p. 25. 
 Kettlewell v. Watson (1884), 53 (») Be Stucley, Stucley v. 
 
 L. J. Ch. 717; 26 Ch. D. 501. Kekewich (1905), 75 L. J. Ch. 
 
 (A) Dixon v. Gay fere (1857), 58; [1906] 1 Ch. 67. 
 
 p2 
 
212 
 
 LEADING CASES IN EQUITY. 
 
 Against 
 whom and 
 what property 
 available. 
 
 Purchaser 
 for value 
 without 
 notioe. 
 
 Rescission by 
 purchaser. 
 
 Profit on 
 investment 
 of purchase- 
 money. 
 
 goods (o). A purchaser who acquires an equitable lien over a fund 
 should perfect his title by notice ( p). 
 
 The lien may be asserted against a purchaser having notice of 
 the prior right (q). The remedy in respect of the lien is limited to 
 the estate upon which it is a charge (r). It is available in the ease 
 of a railway company acquiring land compulsorily (s). Where a 
 oontract provides for payment of the purchase-money by instal- 
 ments, the purchaser may obtain a judgment for specific performance 
 with a declaration of lien and a reservation of liberty to apply in 
 respect of future instalments as they accrue due (t). 
 
 A purchaser who obtains the legal estate without notice (u) of 
 the lien of any other person takes priority over the latter (a;). 
 Formerly, where a purchase deed did not contain a receipt endorsed 
 upon the deed for the consideration money, or there was any 
 irregularity in the form of receipt, the purchaser was fixed with 
 notice (y) ; but at the present day an acknowledgment in the body 
 of the deed is a sufficient discharge (z). If the purchase deed does 
 not contain an acknowledgment of the receipt of the purchase- 
 money, either in the body of the deed or endorsed thereon, and 
 there is no reason to suppose that a lien exists, a purchaser must 
 pay the costs of proving that there is in fact no lien for unpaid 
 purchase-money (a). 
 
 The purchaser retains his lien for purchase-money paid where 
 he rescinds the contract in exercise of a power to do so contained 
 in the contract, and the vendor is not in default, and this Ken is 
 available against a subsequent purchaser of land with notice (b). 
 
 The second leading case is an illustration of the rule that equity 
 looks upon that as done which is agreed to be done. Another 
 illustration is afforded by the fact that purchase-money in the 
 
 (o) See McGruther v. Pitcher 
 (1904), 73 L. J. Ch. 653; 
 [1904] 2 Ch. 306. 
 
 O) Davies v. Thomas (1900), 
 69 L. J. Ch. 643; [1900] 2 Ch. 
 462. See ante, p. 39. 
 
 (q) Worthington v. Morgan 
 (1849), 18 L. J. Ch. 233; 16 
 Sim. 547; Frail v. Ellis (1852), 
 22 L. J. Ch. 467; 16 Beav. 350. 
 
 (r) Barnewall v. Jremonger 
 (1860), 30 L. J. Ch. 13; 1 t)r. 
 & Sm. 242. 
 
 (e) Allgood v. Mcrrybent and 
 Darlington Ry. (1886), 55 L. J. 
 Ch. 743; 33 Ch. D. 571. 
 
 (O Nives v. Nives (1880), 49 
 L. J. Ch. 674 ; 16 Ch. D. 649. 
 
 («) See Jackson v. Rows 
 
 (1828), 4 Russ. 514; (1830), 9 
 L. J. (O. S.) Ch. 32; ante, 
 p. 127. 
 
 (x) Sice v. Rice (1854), 23 
 L. J. Ch. 289; 2 Drew. 73. See 
 Bickerton v. Walker (1885), 55 
 L. J. Ch. 227; 31 Ch. D. 151. 
 
 (y) Kennedy v. Green (1834), 
 3 Myl. & K. 699. 
 
 (z) Lloyds Bank v. Bullock 
 (1896), 65 L. J. Ch. 6S0; [1896] 
 2 Ch. 192. 
 
 (a) Re Scott and Alvarez's 
 Cont. (1895), 64 L. J. Ch. at 
 p. 379, n. The point is not 
 noticed in the Law Reports. 
 
 (6) Whitbread $ Co. v. Watt 
 (1902), 71 L. J. Ch. 424; [1902] 
 1 Ch. 835. 
 
VENDOR AND PURCHASES. 213 
 
 hands of the vendor of land is his private property, and if he 
 invests it he retains any profit upon the investment (c). 
 
 Conversely, by an application of the same rule, the purchaser is Deterioration 
 entitled to charge the vendor with rents and profits •which, without TMrt _. J^i j" 
 wilful default, he ought to have received, and also with deterioration 
 of the property for which he may be responsible (d). Where the 
 property is accidentally destroyed, as by a fire, the purchaser bears 
 the loss, and cannot recover from the vendor the insurance money 
 received by the latter (e). 
 
 Waste. 
 
 GARTH v. COTTON. (1753) [77] 
 
 [1 Ves. Sen. 524; 2 Wh. & T. L. C. 970, 7th ed.] 
 
 An estate stood limited to one for ninety-nine years, if 
 he should so long live, without impeachment of waste, 
 except voluntary waste, remainder to trustees to preserve 
 contingent remainders, remainder to his first and every 
 other sons in tail, remainder to the defendant in fee. The 
 tenant for life and the defendant came to an agreement 
 to cut down timber on the estate, and divide the proceeds 
 of sale. The first tenant in tail, who had suffered a recovery 
 and so enlarged his estate tail into a fee simple, was held 
 entitled to recover from the defendant what he had re- 
 ceived. [Note. — The defendant having died pending 
 suit, the decree was made against his personal repre- 
 sentatives.] 
 
 The whole question of waste is part of the law of property, and 
 is consequently beyond the scope of this elementary work (/). The 
 
 (c) Burroughes v. Browne (e) Paine v. Keller (1801), 
 (1852), 22 L. J. Ch. 148; 9 Ha. 6 Vea. 349; Rayner v. Preston 
 609. (1881), 50 L. J. Ch. 472; 18 
 
 (d) Phillips v. Silvester Ch. D. 1. 
 
 (1872), 42 L. J. Ch. 225; L. E. (/) See Lewis Bowles' Case 
 
 8 Ch. 173; Clarke v. Ramuz (1617), 11 Co. 796; Tud. L. C. 
 
 (1891), 60 L. J. Q. B. 679; Conv. 86. 
 [1891] 2 Q. B. 456. 
 
214 
 
 LEADING CASES IN EQUITY. 
 
 Equitable 
 ■waste. 
 
 Windfalls. 
 
 Remedy : — 
 Injunction. 
 
 note will be restricted to (1) equitable waste properly so called; 
 and (2) the remedy which the Court granted in cases of waste. 
 
 With regard to equitable waste, it is now provided by sect. 25, 
 sub-sect. 3, of the Judicature Act, 1873 : "An estate for life without 
 impeachment of waste shall not confer, or be deemed to have con- 
 ferred, upon the tenant for life any legal right to commit waste of 
 the description known as equitable waste, unless an intention to 
 confer such right shall expressly appear by the instrument creating 
 such estate." The jurisdiction of the Court in respect of equitable 
 waste is restricted either to timber planted for ornament or shelter, 
 or to the cutting of immature timber (g). It is now well settled 
 that the Court does not regard itself as competent to decide what is 
 or is not ornamental timber, it merely regards ascertained facts, 
 and inquires whether the trees were in fact planted for ornament 
 or for some other aesthetic reason, and upon the answer to that 
 inquiry regulates the rights of the parties. It does not push this 
 disclaimer of jurisdiction to absurd lengths, and will permit the 
 cutting of ornamental timber to prevent a plantation presenting a 
 ragged or unpleasing appearance, or where that course is necessary 
 to preserve the remainder (h). Trees which have been in fact 
 planted for ornament or shelter may cease to possess that character 
 by the act of a person absolutely entitled (i). 
 
 There are dicta, contrary to the opinion expressed by Lord 
 Hardwicke in the principal case, that the tenant for life is entitled 
 to windfalls. It is clearly settled that they belong to the owner of 
 the first estate of inheritance (k). In the case of a "timber estate " 
 accounts must be adjusted so as to give the tenant for life the 
 benefit which would have accrued to him from the timber treated 
 as income by investing the proceeds of sale and paying him the 
 average annual income, and resorting to the investments if 
 necessary to make up deficiencies in the income actually received (I). 
 
 The remedy by injunction to restrain an act of waste can be 
 traced back to the reign of Eichard II. (m). The person enjoined 
 
 (g) Surges v. Lamb (1809), 16 
 Ves. 174; Potts v. Potts (1825), 
 3 L. J. (0. S.) Ch. 176. See 
 Turner v. Wright (1860), 29 
 L. J. Ch. 598; 2 De G. F. & J. 
 234. 
 
 (h) Downshire (Marq.) v. 
 Sandys (Lady) (1801), 6 Ves. 
 107; Att.-Qen. v. Marlborough 
 (Duke) (1818), 3 Madd. 498; 
 (1820), 5 Madd. 280; Marker v. 
 Marker (1851), 20 L. J. Ch. 246; 
 9 Ha. 1; Baker v. Sebright. 
 (1879), 49 L. J. Ch. 65; 13 Ch. 
 
 D. 179; Weld Blundellv. Wolse- 
 ley (1903), 73 L. J. Ch. 45; 
 [1903] 2 Ch. 664. 
 
 (i) Micklethwait v. Mickle- 
 thwait (1857), 26 L. J. Ch. 721; 
 1 De G. & J. 504. 
 
 (k) Eonywood v. Honywood 
 (1874), 43 L. J. Ch. 652; L. E. 
 18 Eq. 306. 
 
 (I) Be Harrison, Harrison v. 
 Harrison (1885), 54 L. J. Ch. 
 617; 28 Ch. D. 220. 
 
 (m) See Anon. (1606), Moo. 
 554. 
 
WASTE. 215 
 
 must be the person •who actually commits the tort(ra), and the 
 order will be restricted in effect to a repetition of the tortious act 
 complained of (o). An injunction will also be granted to restrain 
 a party who threatens to commit an act of equitable waste from 
 executing his evil intention (p). 
 
 The jurisdiction of the Court of Equity to direct an account of Account, 
 waste was " to prevent a multiplicity of suits" (7). In the case of 
 legal waste an account would not be granted unless an injunction 
 to restrain waste were also prayed (r). In the case of equitable 
 waste, the account would be granted without a prayer for an 
 injunction, there being no alternative remedy at law (s). Where a 
 party committing an act of waste failed to preserve evidence of the 
 benefit which accrued to him thereby, a penal order was made 
 against him (t). 
 
 (») Campbell v. Allgood v. Palmer (1834), 3 M. & K. 632; 
 
 (1853), 17 Beav. 623. Bagot v. Bagot (1863), 33 L. J. 
 
 (0) Coffin v. Coffin (1821), 6 116; 32 Beav. 509. 
 
 Madd. 57; Jac. 70. (s) Leeds (Duke) v. Amherst 
 
 (p) Potts v. Potts (1825), 3 (Lord) (1846), 16 L. J. Ch. 5; 
 
 L. J. (0. S.) Oh. 176. 2 Ph. 117. 
 
 (q) lid. Hardwicke, L.C., (t) Leeds (Duke) v. Amherst 
 
 Jesus College v. Bloome (1745), (Lord) (1850), 20 Beav. 239. 
 
 3 Atk. 262. See Walmsley v. Walmsley 
 
 (r) Jesus College v. Bloome (1846), 3 Jo. & L. 556; ante, 
 
 (1745), 3 Atk. 262. See Parrott p. 21. 
 
( 217 ) 
 
 INDEX. 
 
 ACCOUNT, 
 
 who are accounting parties, 16, 17. 
 
 duty to keep, 17. 
 
 production and inspection of account books, 17, 18. 
 
 containing entries affecting third parties, 17, 18. 
 
 furnishing copies of entries, 18, 190. 
 
 right to make copies of entries, 18. 
 re-opening and surcharging settled accounts, 19, 20. 
 
 error must be shown, 21. 
 
 effect of laches and acquiescence, 20, 21. 
 liability for interest, 18. 
 penal orders, 21, 22, 202. 
 special directions, 22. 
 
 liability of accounting party for costs, 18, 19. 
 submission to account and pay by party requiring account, 18. 
 statutory right respecting accounts under the Public Trustee 
 Act, 19. 
 
 ACQUIESCENCE. See Laches. 
 
 ACT OF PAELIAMENT. See Statute. 
 
 ADEMPTION. See Legacy. 
 
 ADMINISTRATION, 
 
 assets, legal and equitable, denned, 27. 
 liability of land, 26. 
 
 trusts for payment of debts, 185, 186. 
 order of application of assets in administration, 27. 
 primary liability of personal estate, 24, 25. 
 effect of Real Estates Charges Acts, 25. 
 exoneration of personal estate, 26. 
 
 blended fund, 26. 
 priority of debts, 28. 
 set off in administration, 28. 
 
 in respect of what debts, 29. 
 against gifts, 29. 
 in winding up, 29. 
 against assignee, 29. 
 release of debt, 29. 
 conversion of residue of wasting property, 29, 30. 
 of reversionary property, 30. 
 of hazardous investments, 31. 
 adjustment of rights, 31. 
 of specific gifts, 30. 
 of property settled by deed, 31. 
 of casual profits and bonus, 30, 31. 
 
218 INDEX. 
 
 ADVANCEMENT. 
 
 purchase in name of child, by father, 32, 33, 34. 
 by mother, 33, 34. 
 by person in loco parentis, 33. 
 in name of wife by husband, 34. 
 by stranger, 32, 34, 183. 
 to what property applicable, 34, 183. 
 admissibility of parol evidence, to rebut, 33, 34, 35. 
 
 to support or establish, 33, 34. 
 matters of evidence, 35. 
 purchases in fraud of creditors, 36. 
 liability of party advanced to account, 36, 152. 
 
 ADVANCES. See Satisfaction. 
 
 AFTER-ACQUIRED PROPERTY. See Assignment (Equitable). 
 
 ANTICIPATION (RESTRAINT ON). See Mabeied Woman. 
 
 APPOINTMENT. See Power; Teust. 
 
 ARRANGEMENT (FAMILY). See Compromise. 
 
 ASSETS. See Administration. 
 
 ASSIGNMENT (EQUITABLE). [See Shirley, Leading Cases, 
 394.] 
 form of, writing, 37. 
 
 in expression, 37. 
 voluntary, 38. 
 subject matter of, possibility, 36, 37. 
 
 chose in action, 37. 
 assignee affected by equities, 28, 29, 38. 
 notice, 40. 
 parties to action by, 38. 
 right of assignee against trustee, 42. 
 notice of assignment, 
 
 when necessary, 39, 40. 
 
 effect on priority, 39, 40, 41* 
 
 form of, 40, 41. 
 
 by whom to be given, 40, 41. 
 
 dealings with assignee before, 40. 
 
 to whom given, 41. 
 
 BONUS, . . 
 
 casual and extraordinary profits, right of beneficiaries inter se, 
 31, 32. 
 
 BOUNDARIES, 
 
 jurisdiction to fix, freeholds, 42. 
 
 leaseholds, 42. 
 
 copyholds, 43. 
 agreements respecting, 1. 
 
 ^BUILDING, 
 
 on land of another, 63. 
 
 specific performance of contract to build, 166. 
 
INDEX. 219 
 
 CHARGES AND EXPENSES. See Mortgage; Trust. 
 
 CHARITY, 
 
 jurisdiction of Court in cases of, 10. 
 
 right of Crown, 10, 11. 
 jurisdiction of Charity Commissioners, 11. 
 charitable objects, 11. 
 
 doctrine of cy pres, 12. 
 enhanced value of charity property, right to, 12. 
 aiding defective execution of power in favour of, 145. 
 
 CHATTELS. See Gift. 
 specific delivery of, 43. 
 specific performance of contracts relating to, 161. 
 
 COMPANY. See Manager. 
 
 administrative order against, 13, 167. 
 restraining acts ultra vires, 13, 167. 
 winding-up, 13. 
 
 COMPROMISE, 
 
 compromise and family arrangement, 44. 
 by agent, 45. 
 by legal adviser, 45, 46. 
 duty of disclosure, 44, 46. 
 wilful ignorance, 45. 
 concealment by agent, 45. 
 consideration for, 45. 
 matters compromised, 45, 46. 
 confirmation, 46. 
 
 CONFIRMATION. See Compromise; Fraud; Gift; Undue 
 Influence. 
 
 CONVERSION. See Administration. 
 doctrine of, 47, 50. 
 
 whether absolute or conditional, 47, 50. 
 power to postpone, 48. 
 
 in the case of sales and purchases of land, 48, 210. 
 under powers, 48. 
 
 the order of the Court, 49. 
 statutory powers, 49, 134. 
 effect of disability, 9, 31, 134. 
 failure of purpose, 50. 
 devolution of property, 50. 
 effect of election, 51. 
 
 COSTS, 
 
 where a declaratory judgment is the sole relief sought, 3. 
 where no substantial relief is obtained, 202, 203. 
 in cases of mortgage, 119. 
 trust, 192, 193. 
 
 DEBT, 
 
 set off of, against testamentary gift, 28, 29, 155. 
 
 against debt in administration and winding-up, 29. 
 assignment of, 37. 
 
220 INDEX. 
 
 DELAY. See Laohes. 
 
 DEPOSIT. See Mortgage; Vendor and Purchaser. 
 
 DONATIO MORTIS CAUSA. See Gift. 
 
 ELECTION, 
 
 diverse meaning of, 52. 
 equitable doctrine of, 52, 53. 
 
 compensation or forfeiture, 52, 54. 
 
 application to property, 55. 
 
 application to property out of jurisdiction, 55, 56. 
 
 in cases of conversion, 51 . 
 
 effect of illegality, 56., 
 disability, 54. 
 raised upon terms of gift, 55. 
 time for electing, 53. 
 
 right of party electing to have estate "cleared," 53. 
 acts amounting to a final election, 53. 
 
 effect on rights of third parties, 56. 
 adjustment of rights, 54. 
 as an estoppel, 56. 
 admissibility of parol evidence to raise a case of election, 53. 
 
 ESTOPPEL, 
 
 building on land of another, 63. 
 
 by representation, 64, n. (e), 79. 
 
 of trustee by answer to inquiries, 42, 64. 
 
 of mortgagor, by acknowledgment in deed, 113. 
 
 EXPECTANCY. See Assignment (Equitable). 
 
 EXPECTANT HEIR, 
 
 character not dependent on age, 59. 
 Bale by, of his expectancy, 57. 
 
 at an undervalue, 57. 
 
 effect of Sales of Reversions Act, 1867... 58. 
 mortgage by, 58. 
 sales and mortgages by ignorant and necessitous persons, 58. 
 
 effect of Moneylenders Acts, 1900 and 1911... 58, 59. 
 compromises affecting proprietary rights of, 59. 
 matters of evidence, 59. 
 form of relief, 59. 
 
 FAMILY ARRANGEMENT. See Compromise. 
 
 FIDUCIARY RELATION. See Fraud; Trust; Undue 
 ■Influence. 
 
 FORFEITURE. See Penalty. 
 
 construction of provisions working a forfeiture, 56, 137. 
 relief against, in equity, 136. 
 
 breach of condition precedent, 138. 
 
 condition against litigating will, 138. 
 
 breach of covenants in leases, 138. 
 
INDEX. 221 
 
 FORFEITURE— continued. 
 
 statutory power to relieve, in cases of bonds, 141. 
 for non-payment of rent, 139. 
 breach of covenant against assigning and underletting, 
 
 139, 141. 
 other breaches of covenants in leases, 140. 
 in case of underleases, 140, 141. 
 waiver of, 57. 
 
 FRAUD. See Expectant Heie; Passing Off; Undue Influ- 
 ence. [See Shirley, Leading Cases, 542.] 
 equitable relief, in cases of, 60. 
 
 underhand practices, 62. 
 fraud a matter of inference, 60, 61. 
 effect of knowledge, 62. 
 
 rescission after completion on the ground of, 61. 
 concealment, 62. 
 
 of title to land, 62, 63. 
 duty to disclose, 62, 63, 70, 71, 72. 
 partial disclosure, 62. 
 effect of knowledge, 62. 
 purchase and sale by person in a fiduciary position, 69, 70, 71, 
 178. 
 by mortgagee, 71. 
 
 where purchaser is a conveying party, 69, 70. 
 under liberty to purchase, 70. 
 terms of relief, 73. 
 proof of consideration, 73. 
 mortgage to person in a fiduciary relation, 71. 
 illicit gains by party in fiduciary position, 72. 
 
 profits by corporators, 73. 
 effect in cases of Statute of Limitations, 76. 
 
 the Statute of Frauds, 5, 71, 163. 
 Registry Acts, 5. 
 
 FRAUDS (STATUTE OF), 
 
 construction at law and in equity identical, 163. 
 non-observance of provisions, effect of fraud, 5, 71, 163. 
 
 effect of part performance, 162, 166. 
 acts of part performance, acts tantamount to a trespass to 
 land, 163. 
 
 payment of money, 162, 164. 
 
 marriage, 164. 
 
 possession taken, 164. 
 
 services rendered, 164. 
 
 in the case of guarantees, 164. 
 equitable mortgage by deposit, 125. 
 
 GIFT. See Advancement; Trust; Undue Influence. 
 inter vivos, essentials of, 77, 78. 
 
 to personal representative, 29, 79. 
 by words de futuro, 79. 
 perfecting, 78, 79. 
 recalling, 34, 77, 78, 168. 
 death duties, 80. 
 
222 INDEX. 
 
 GIFT — continued. 
 
 mortis causd, effect of Wills Act, 80. 
 condition of death, 80. 
 words of gift, 81. 
 delivery, 81. 
 subject matter, 81. 
 perfecting, 81. 
 
 engrafted trusts and conditions, 81. 
 revocation, 81. 
 death duties, 81. 
 
 HUSBAND AND WIFE. See Maeeied Woman. 
 
 INFANT, 
 
 jurisdiction of Court of Chancery, 7, 85. 
 ward of Court, 85, 86. 
 
 removal of, out of jurisdiction, 86. 
 
 marriage of, 82, 86. 
 
 case heard in camera, 7, 85. 
 guardianship, parental, 82. 
 
 parental power to appoint guardian, 82. 
 
 curial power to appoint guardian, 83. 
 
 removal of guardian, 83. 
 
 accountability of guardian, 9. 
 custody of, parental, 83. 
 
 agreements respecting, 84. 
 power of Court respecting, 84. 
 access, 84. 
 religion of, 85. 
 
 change of faith by parent or guardian, 85. 
 maintenance, right to, 7, 87. 
 
 past maintenance, 8. 
 
 amount, 7, 90. 
 
 out of what fund, 8. 
 
 power to give, 90. 
 
 statutory power to give, 90. 
 
 effect of provision for, on vesting, 89. 
 property of, conversion of, 51, 134. 
 
 application of doctrine of election to, 52, 54. 
 bounty out of, 8, 9. 
 management of, 9. 
 proceedings against, day to show cause, 9, 52, 54. 
 
 conveyance of share in partition action, 136. 
 
 INJUNCTION, 
 
 ex parte, uberrima fides on part of applicant essential, 94. 
 before issue of writ, 95. 
 before appearance, 95. 
 after notice of motion, 95. 
 interlocutory and at the hearing, 91. 
 
 effect of Judicature Act, 1873... 91, 92. 
 submission to final order on interlocutory applica- 
 tion, 92. 
 
INDEX. 223 
 
 INJUNCTION— continued. 
 
 undertaking as to damages, 93. 
 
 declaratory judgment with liberty to apply for, 92. 
 
 form of order, 75, 90. 
 
 against strangers to suit, 93. 
 
 in favour of stranger to suit, 93. 
 
 limit of time, 93. 
 
 suspension of order, 4, 94. 
 breach of, 92, 94. 
 
 JURISDICTION, 
 
 extra-territorial, land in foreign country, 1. 
 land in a colony, 1. 
 mortgage of land, 2. 
 partition of land, 2. 
 waste, 2. 
 
 system of law applicable in case of land, 2. 
 contracts, 2. 
 torts, 3 . 
 to restrain applications to legislature, 3, 4. 
 to relieve against non-observance of statute, 4, 5. 
 Statute of Frauds, 5, 6, 71, 163. 
 
 Limitations, 6, 76. 
 effect of fraud, 5, 76, 163. 
 mistake, 6. 
 to restrain proceedings in Courts within the jurisdiction, 3. 
 in particular cases, account, 2, 16. 
 administration of assets, 24. 
 boundaries, 42. 
 charity, 10. 
 
 chattels, specific delivery of, 43. 
 companies, winding-up of, 13. 
 expectant heirs, 57. 
 fraud, 60. 
 infants, 7. 
 lunatics, 6. 
 mistake, 105. 
 mortgages, 107. 
 partition of land, 2, 134. 
 partnership, 12. 
 
 penalties and forfeitures, relief against, 136. 
 rectification of written instruments, 105, 165, 166. 
 specific performance, land, 157. 
 
 chattels, 5, 161. 
 personal contracts, 166. 
 trusts, 168. 
 waste, 2. 
 auxiliary, receiver, 14, 15. 
 manager, 13. 
 
 discovery and inspection, 16. 
 preserving the status quo, 15. 
 
 restraining dealings with the legal estate, 15, 126. 
 in aid of execution creditor, 16. 
 plea to the jurisdiction, 3. 
 submission to the jurisdiction, 3. 
 declaratory judgment, 3, 92, 212. 
 
224 INDEX. 
 
 LACHES, 
 
 Statute of Limitations generally inapplicable to equitable 
 
 relief, 76, 209. 
 as affecting right to re-open an account, 21. 
 injunction, 91. 
 
 specific performance, 160, 208. 
 rescinding contract for sale on ground of delay, 210. 
 in cases of trust, 169. 
 
 LAND. See Jurisdiction; Mortgage; Specific Performance. 
 
 LEASE. See Renewable Leaseholds. 
 
 breach of covenant, relief against, in equity, 138. 
 under statutory powers, 139, 140, 141. 
 
 LEGACY, 
 
 ademption, doctrine applicable to specific legacy only, 22, 23. 
 
 by change of identity, 23. 
 
 total and partial ademption, 23. 
 
 time of, 23. 
 
 distinction between, and satisfaction, 24. 
 when cumulative, 155. 
 to executor, 29. 
 to infant, maintenance out of, 7, 8, 87 . 
 
 gift by person in loco parentis, 88. 
 
 charged upon land, 88, 187. 
 
 express gift of maintenance, 89. 
 satisfaction of, by debt, 155. 
 
 debt by legacy, 154. 
 
 by portion, 154. 
 
 portion by, 154. 
 set off of debt against, 28, 29. 
 specific, duty to preserve subject matter in specie, 24. 
 
 LIEN. See Mortgage; Vendor and Purchaser. 
 
 LIMITATIONS (STATUTE OF). See Laches. 
 
 not applicable generally to equitable rights, 76, 209. 
 effect of fraud, 76. 
 
 trusts for payment of debts, 185, 186. 
 breaches of trust, 204. 
 
 LUNATIC, 
 
 jurisdiction of Court over, 7. 
 
 proceedings heard in camera, 7. 
 application of property in maintenance, 7, 8. 
 
 past maintenance, 8. 
 
 gifts and acts of bounty, 6, 7, 8. 
 management of property, 7, 9. 
 
 conversion, 4. 
 
 election, 54. 
 accountability of committee, 9. 
 
 MAINTENANCE. See Infant; Legacy; Lunatic. 
 
 MANAGER, 
 
 appointment of, 13. 
 duties of, 13, 14. 
 only appointed for limited time, 14. 
 
INDEX. 225 
 
 MANAGER — continued. 
 
 personal liability of, 14. 
 
 indemnity, 14. 
 subrogation of creditors to, 14. 
 
 MARRIED WOMAN. [See Shirley, Leading Cases, 34.] 
 separate estate, in equity, 95. 
 
 savings of, 96. 
 
 protection of, 97. 
 
 power to dispose of, by will, 98. 
 
 devolution of, upon death of wife, 98. 
 
 restraint upon anticipation, 95. 
 
 duration of restraint, 96. 
 
 removing restraint, 96. 
 contracts between husband and wife, 97. 
 
 respecting power to jointure, 149. i 
 mortgage of wife's property for husband's benefit, 98. 
 gift by husband to wife, 34. 
 
 wife to husband, 66, 98. 
 equity to a settlement, 97. 
 fraud upon marital rights, 97. 
 dower out of equitable estates, 114. 
 
 provisions in lieu of, 55. 
 
 MARSHALLING 
 of assets, 99. 
 
 applied on equitable principles, 100. 
 
 in whose favour applied, 101. 
 
 form of order, 100. 
 of securities, 100. 
 
 MERGER, 
 
 effect of Judicature Act, 1873.. .103. 
 of estates, 103. 
 
 of equitable in legal estate, 103. 
 of charges and incumbrances, on acquisition of estate, 102. 
 
 on acquisition of charge, 104. 
 
 conveyance to trustee, 104. 
 
 time for ascertaining intention to merge, 104. 
 
 upon payment off by mortgagor, 104. 
 
 MISTAKE 
 
 of fact, unilateral, 105. 
 
 as a defence to specific performance, 106. 
 mutual, as ground for rectification of written instru- 
 ment, 105, 106. 
 in cases of compromise, 44, 45. 
 obvious errors, 106. 
 burden of proof, 106. 
 admissibility of evidence, 107. 
 of law, 107. 
 
 MORTGAGE. See Merger. [See Shirley, Leading Cases, 101.] 
 distinction between conditional purchase and mortgage, 122. 
 of land situate out of jurisdiction, 2. 
 estate of mortgagee, 107, 109. 
 
 incidents of, 109, 111. 
 
 devolution of estate, 107, 108. 
 
 R. Q 
 
226 INDEX. 
 
 MORTGAGE— continued. 
 
 estate of mortgagor, 114, 121. 
 
 of mortgagor in possession, 118. 
 
 incidents of, 118. 
 
 assignability, 114, 115. 
 
 purchase of, by mortgagee, 71, 122. 
 oquitable mortgage by deposit of title deeds, 12S. 
 
 deposit of what deeds, 126. 
 
 form of, 126. 
 
 in the case of copyholds, 127. 
 
 over property agreed to be purchased, 127, 210. 
 
 vendor's lien, 210. 
 transfer of mortgage, payment to transferor, 113, 114. 
 
 transferee takes subject to state of account, 113. 
 
 to mortgagor, right of assignee of the equity of redemp- 
 tion, 116. 
 
 right to consolidate, 112, 114. 
 
 right to tack, 110, 114. 
 consolidation, statutory restriction on, 111. 
 
 where the mortgages are equitable, 112. 
 
 by transferee oi mortgage, 112. 
 
 against assignee of equity of redemption, 112. 
 tacking by puisne mortgagee, 109. 
 
 by transferee of mortgage, 110. 
 
 of further advances, 110. 
 
 where the mortgages are equitable, 110. 
 
 in Yorkshire, 111. 
 
 against a surety, 111. 
 of renewable leaseholds, expenses of renewal paid by 
 mortgagee, 180. 
 
 mortgagor, 180. 
 right of mortgagee to take possession, 118, 124. 
 
 to be repaid for repairs and improvements, 118. 
 
 to commit waste, 119. 
 
 to notice to repay or interest in lieu, 123. 
 
 to costs, 119. 
 enforcing, modern form of judgment, 115. 
 
 right to pursue alternative remedies, 116. 
 
 where foreclosure is inapplicable, 71, 117. 
 
 where the mortgage is by deposit of deeds, 127. 
 
 restraining dealings with legal estate, 126. 
 
 exercising power of sale, 116. 
 
 purchase by mortgagor, 71, 104, 105. 
 
 effect of foreclosure, 120. 
 
 re-opening foreclosure, 120. 
 redemption, by whom, 114, 115, 116, 121. 
 
 clog on the right, 121. 
 
 account in case of assignment, 115. 
 
 against mortgagee in possession, 124. 
 
 extraordinary allowances in redemption actions, 125. 
 
 of mortgage by deposit of title deeds, 127. 
 
 primary liability of personal estate to discharge, 25, 115. 
 
 effect of dismissal of redemption action, 120. 
 
 mortgage of wife's estate, 98. 
 parties to foreclosure action, 117, 118. 
 
 redemption action, 114, 115, 124. 
 
INDEX. 227 
 
 NOTICE. See Assignment (Equitable). 
 
 purchaser for value without notice, 127, 129. 
 
 as affecting legal rights, 128. 
 
 equitable rights, 128, 129. 
 
 burden of proof, 129. 
 
 time for acquiring notice, 129. 
 
 title through party without notice, 129. 
 actual notice, 131. 
 constructive notice, 130. 
 imputed notice, 131. 
 
 duty of inquiry, 132. 
 
 acceptance of answer to inquiry, 132. 
 
 trusts for payment of debts, 186. 
 
 absence of title deeds, 133. 
 inquiry beyond what the law requires, 132. 
 duty of disclosure by vendor of land, 133. 
 purchase with notice, 5. 
 
 from settlor of land, 78, 168. 
 statutory dispensation with, 4, 5. 
 
 PAMENTIS (PERSON IN LOCO). See Person im Loco 
 Parentis. 
 
 PARLIAMENT, restraining application to, 3, 4. 
 
 PARTITION, 
 
 jurisdiction to order sale in lieu of partition, 134. 
 refusal to order sale for "good reason," 135. 
 practice under the Partition Acts, cases assigned to Chancery 
 Division, 136. 
 parties, 136. 
 costs, 136. 
 conversion by order for sale, 134, 135. 
 conveyance of infant's share, 136. 
 
 PARTNERSHIP. [See Shirley, Leading Cases, 87.] 
 jurisdiction in winding up partnership, 12. 
 appointment of manager, 13. 
 restraining unlawful acts of partner, 13. 
 accounts, 16, 22. 
 
 PASSING OFF, 
 
 fraud not essential to relief, 73. 
 similarity of trade name, 74. 
 name or words descriptive of goods, 74. 
 get up, 74. 
 
 plaintiff domiciled abroad, 74. 
 fraud on part of plaintiff, 75. 
 form of order, profits made by defendant, 75. 
 injunction, 75. 
 against innocent tort-feasor, 75. 
 
 PENALTY. See Forfeiture. 
 relief against, in equity, 137. 
 
 by statute, 141. 
 interest beyond penalty of bond, 142. 
 
 PERFORMANCE. See Satisfaction. 
 
 q2 
 
228 INDEX. 
 
 PERSON IN LOCO PARENTIS, 
 definition, 152, 153. 
 does not depend upon infancy, 153. 
 gifts by party in loco parentis, 33. 
 legacy by party in loco parentis, 88, 89. 
 
 PORTION. See Power; Satisfaction. 
 
 POWER, 
 
 fiduciary power, 144. 
 
 general power, 145. 
 
 to sell or mortgage for payment of debts, 26, 186. 
 
 to give receipts, 185. 
 
 maintenance, 90. 
 appointment, valid if good in substance, 145. 
 
 doctrine of cy-pres, 146. 
 
 unwarranted by power, 146, 148. 
 
 super-added invalid provisions, 146, 148, 149. 
 
 fraudulent, 142, 147—149. 
 
 distinction between intent and purpose or motive, 148 . 
 
 of portions to infant children, 148. 
 
 illusory, 145, 146. 
 
 of double portions, 153. 
 aiding defective execution, 144. 
 
 PURCHASER. See Notice: Vendor and Pubchaseb. 
 
 RECEIVER. See Manager. 
 jurisdiction to appoint, 14. 
 
 transferred to High Court, 15. 
 in cases of mortgages, 124, 162. 
 
 RECTIFICATION 
 
 of written instruments, 166. 
 
 on the ground of mistake, 105. 
 effect of the Statute of Frauds, 165, 166. 
 of settlement by articles, 172. 
 
 RENEWABLE LEASEHOLDS, 
 trusts of, duty to renew, 180. 
 
 renewal impracticable, 181. 
 fines and costs of renewal, 180, 181. 
 indemnity, 180. 
 lands bound, 182. 
 renewal by mortgagee, 180. 
 mortgagor, 180. 
 partner, 180. 
 tenant for life, 179, 180. 
 trustee, 179, 180. 
 one of several co-owners, 180. 
 recoupment and indemnity, 180. 
 apportionment of fines, 181. 
 purchase of freehold reversion, 181. 
 
INDEX. 229 
 
 REPRESENTATIONS. See Estoppel; Fraud; Passing Off. 
 making good, 64, n. (e), 79. 
 
 RESTRAINT ON ANTICIPATION. See Married Woman. 
 
 REVERSIONER. See Expectant Hedb. 
 
 SATISFACTION, 
 
 distinction between satisfaction and performance, 150. 
 
 to what property applicable, 149, 151. 
 
 to what covenants applicable, 150. 
 
 effect of terms of gift, 150. 
 
 definition of a portion, 153. 
 
 double portions, 151. 
 
 gifts by persons in loco parentis, 151, 152. 
 
 stranger, 152, 153. 
 application of doctrine to powers, 153. 
 election between benefits, 151. 
 of a legacy by a portion, 154. 
 of a portion by a legacy, 154. 
 
 by another provision, 151, 154. 
 of a debt by a legacy, 154. 
 of a legacy by a debt, 28, 29, 155. 
 cumulative legacies, 155. 
 admissibility of evidence, 156. 
 
 directions to account for advances, 157. 
 
 SPECIFIC PERFORMANCE. See Frauds (Statute of). 
 of what contracts, sale of land, 157. 
 
 specific chattels, 161. 
 stocks and shares, 162. 
 ship, 162. 
 copyright, 162. 
 patent, 162. 
 mortgage of chattels, 162. 
 respecting boundaries, 1. 
 of contract to build, 166, 167. 
 for personal services, 168. 
 
 of verbal contract partly performed, 162, 166. 
 of written contract with parol variation, 165. 
 relief discretionary, 157, 158. 
 remedy must be mutual, 158. 
 
 performance by one party, 158. 
 defences, misrepresentation and fraud, 159. 
 non-disclosure and concealment, 159. 
 hardship, 159. 
 default by plaintiff, 160. 
 impossibility of performance, 160. 
 delay and laches, 160. 
 denial of his title by defendant, 207. 
 election between, and damages, 158. 
 damages in lieu of specific performance, 158. 
 order for partial performance with compensation, 161, 207. 
 
 specific performance with indemnity, 208. 
 execution of conveyance by person appointed by the Court, 210. 
 
230 INDEX. 
 
 STATUTE, 
 
 non-observance of, equitable relief in cases of, 4, 5, 6. 
 effect of fraud, 5, 6, 76. 
 mistake, 6. 
 restraining application to legislature, 3, 4. 
 
 STATUTE OF FRAUDS. See Fbauds (Statute of). 
 
 STATUTE OF LIMITATIONS. See Limitations (Statute of). 
 
 STATUTE OF USES. See Uses (Statute op). 
 
 SUBROGATION 
 
 in eases of trust, 189. 
 
 of creditors to receiver and manager, 14. 
 
 marshalling of assets, 99, 100. 
 
 TIME, when essential, 208, 209, 210. 
 
 TRUST, 
 
 jurisdiction in cases of, 5, 176. 
 classification, constructive, 174. 
 executory, 170. 
 express, 174. 
 precatory, 172. 
 resulting, 32. 
 voluntary, 168. 
 express trust, precatory words, 172. 
 purchaser with notice, 5, 174. 
 
 application of Statute of Frauds, 32, 33, 34, 174, 175, 177. 
 effect of Statute of Uses, 175. 
 resulting trust, purchase in name of child, &c, 32, 33, 34. 
 
 stranger, 32, 33, 34, 183. 
 constructive trust, renewal of lease, 179. 
 purchase of freehold reversion, 181. 
 joint purchases and investments, 182. 
 admission of parol evidence, 183. 
 purchase of trust estate, 69, 178. 
 
 of interest of beneficiary, 70, 178. 
 
 from intermediate purchaser, 71, 178. 
 by person in fiduciary relation, 69, 179. 
 through an intermediary, 179. 
 illicit gains by person in fiduciary capacity, 72. 
 gifts to person in fiduciary capacity, 64. 
 
 influenced by person in fiduciary capacity, 64. 
 executed and executory trust defined, 170, 171. 
 construction of directions to settle, 170, 171. 
 settlement of chattels by reference to trusts of realty, 172. 
 rectification of settlement by articles, 172. 
 voluntary trust defined, 16S, 169. 
 declaration of trust, 79, 170. 
 effective disposition, 169. 
 revocation, 168, 169. 
 remedy at law on covenants, 170. 
 
INDEX. 231 
 
 TRUST— continued. 
 
 the trustee, consent to act, 177. 
 retirement of, 177. 
 new trustees, 177. 
 
 devolution of trust property on death, 177. 
 duty to obtain control of trust fund, 193, 203. 
 duty to invest, 199. 
 
 power cannot be delegated, 195, 199. 
 
 in what securities, 196. 
 
 extension by Court, 196. 
 
 proportion of loan to value, 197. 
 
 power must be exercised bona -fide, 198. 
 
 authorized investments becoming improper, 197. 
 
 being or becoming undesir- 
 able, 195, 197. 
 duty to furnish accounts and information, 16, 42, 190. 
 purchasing trust estate, 69, 178. 
 
 interest of beneficiary, 69, 70, 178. 
 purchase of property in fraud of beneficiary, 71. 
 sale of his own property to beneficiary, 69, 70. 
 of renewable leaseholds, 180. 
 
 duty to renew, 180. 
 
 property bound, 182. 
 making profit out of trust, 70, 71, 72, 184. 
 employing trust moneys for his own benefit, 185, 202. 
 payment for time and trouble, 183. 
 estate of, 26, 176, 186, 193. 
 trust for payment of debts, 185, 186. 
 
 power to sell or mortgage, 186. 
 give receipts, 185, 187. 
 
 conveyance of legal estate, 186. 
 liability of, for negligent exercise of power to invest, 195. 
 
 for improper exercise of power to invest, 193. 
 
 for unauthorized investments, 185. 
 
 for retaining investments, 197. 
 
 for personal acts and omissions, 179, 180, 194. 
 
 for acts of co-trustee, 193. 
 
 employment of trust funds in business, 185, 202. 
 
 for interest, simple, 17. 
 compound, 201. 
 penal, 202. 
 employment of agent, 183. 
 
 where the trustee is remunerated, 183. 
 
 to invest, 199. 
 
 to receive trust funds, 200. 
 
 liability for acts of agent, 194, 200. 
 
 indemnity for acts of agent, 191, 201. 
 
 remuneration of agent, 184. 
 indemnity of, by beneficiaries, 188, 190, 191. 
 
 by assignee of beneficiary, 192. 
 
 out of trust estate, 188, 190. 
 
 by term3 of trust instrument, 189. 
 
 not lost by retirement, 189. 
 
 for breach of trust, 188, 191. 
 
 by co-trustee, 191. 
 
232 INDEX. 
 
 TRUST— continued. 
 
 the trustee, indemnity of — continued. 
 
 subrogation of third parties, 189. 
 
 in respect of what liabilities, 190. 
 
 for costs of action, 192. 
 
 for charges and expenses, 192. 
 
 for costs of appeal, 193. 
 contribution in cases of breach of trust, 194. 
 exoneration of, by terms of trust instrument, 197, 201. 
 
 by Statute or Limitations, 204. 
 
 by Court under statutory power, 203. 
 
 punishment of defaulting trustee, 199. 
 
 the beneficiary, assignment of interest, 177. 
 
 assignee takes subject to equities, 28, 38, 192. 
 priority by notice, 39. 
 trust for payment of debts, 185. 
 right to accounts and information, 16, 42, 190. 
 setting aside sale or purchase by trustee, 69, 70, 71, 178. 
 right to take or reject investment, 198. 
 right where trustee employs trust property in his business, 
 185, 202. 
 
 UNDUE INFLUENCE. See Expectant Heir; Erato. 
 
 presumption arising from gift to party in fiduciary relation, 
 64, 65. 
 
 in family relation, 66. 
 
 in domestic relation, 66. 
 
 to legal adviser by client, 67, 70, 71, 72. 
 
 to doctor by patient, 67. 
 
 to spiritual adviser by penitent, 64, 67. 
 
 testamentary gifts, 68. 
 who may impeach transactions between parties in a fiduciary 
 
 relation, 67. 
 gift to innocent recipient, 67. 
 right of purchaser for value, 68. 
 confirmation, 68. 
 necessity for independent advice, 68. 
 
 USES (STATUTE OP), 
 
 provisions and effect of, 175. 
 
 USURY. See Expectant Heir. 
 
 VENDOR AND PURCHASER. See Notice; Specific Per- 
 formance. 
 contract of sale of land, right to a good title, 207. 
 contract to show a particular title, 205, 206. 
 time presumptively not essential, 208. 
 
 essential in particular cases, 209. 
 stipulations as to time, 209. 
 time made essential by notice, 209. 
 waiver of right to consider time essential, 210. 
 right to rescind upon delay, 210. 
 deposit, 210, 212. 
 conversion by, 210. 
 
INDEX. 233 
 
 VENDOR AND PURCHASER— continued. 
 disclosure by vendor, 62, 63, 70, 71. 
 
 of his title, 62. 
 
 non-disclosure as evidence of fraud, 62, 63, 207. 
 inquiry by the purchaser, 131, 132. 
 
 trust for payment of debts, 185, 186. 
 purchase-money, lien of vendor for, if unpaid, 210. 
 
 lien of purchaser for instalments of, 164, 210, 212. 
 effect of rescission, 212. 
 
 enforcing lien against purchaser with or without notice, 
 212. 
 
 real representative liable for, if unpaid, 25, 211. 
 
 vendor's profit from investment of, 212. 
 
 application of vendor's lien to personal estate, 211. 
 deterioration in subject matter, liability of vendor for, 213. 
 
 WASTE, 
 
 legal waste, equitable remedy for, 213. 
 equitable waste, definition, 214. 
 
 remedy for, 215. 
 extra-territorial jurisdiction in cases of, 2. 
 windfalls, 214. 
 right of mortgagee to commit, 119. 
 
 WINDFALLS, 
 
 casual and extraordinary profits, 31, 32. 
 of timber, 214. 
 
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