i?-'»P-'*i -it i 01?) Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUQLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® * llllMftiffl.te 'aw Of Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archi)^j mr. ggu31 924021 74881 3 Digitized by Microsoft® A TEEATISE ON THE LAW OF MOETaAGE, NOVEMBER, 1880. Digitized by Microsoft® Digitized by Microsoft® A TEEATISE ON THE LAW OF MORTGAGE. EICHAED HOLMES gOOTE, Esq., OF LINOOLX'S ISM, BAKRISTEK-AT-LAW. iFottrti^ mition W. WYLLYS MACKESON, Esq. OF THE INNEE TEMPLE, ONE OP HEE flAJESTV'S COUNSEL. LONDON : STEVENS & SONS, 119, CHANCERY LANE; H. SWEET, 3, CHANCEEY LANE ; W. MAXWELL & SON, 29, FLEET STEEET, f ah Inblisljm. Digitized ^^Crosoft® LOHDON : BRADBDBy, AQKEW, A 00., PBINIER3, WHITEFRIAB3, Digitized by Microsoft® TO THE EIGHT HONOUEABLE EOTJNDELL BAKON SELBOENE THE LOED HIGH CHANCELLOR THE FOURTH EDITION OF THIS WORK IS BY PERMISSION MOST RESPECTFULLY DEDICATED. Digitized by Microsoft® Digitized by Microsoft® PREFACE. Thiety years liave elapsed siuee the last Edition of this Work. In the interv^il vast, alterations have been made in almost every branch of the Law of Mortgages. To show how completely the whole subject has been revolutionised, reference need only be made to the Judgment, Eegistration, and Bills of Sale Acts, to the Bankrupt Laws, to the Acts relating to Married Women, to Locke King's, Lord St. Leonards', and Lord Cranworth's Acts, to the Eailway and Merchant Shipping Acts, and the numerous statutes which have materially changed the order of the Administra- tion of Assets. The present Work is, therefore, necessarily not so much a new Edition, as a new Book. The arrangement in the former Edition has been mainly retained, but each Chapter is more strictly confined to its particular subject-matter, important collateral subjects being treated under separate headings. The Table of Contents and Index have been entii'ely remodelled and enlarged. The object sought to be attained has been to produce a useful Practical Treatise, setting forth the law, as it is believed to be, in clear, concise terms, expunging all obsolete matter and the lengthy statements of the facts of cases. Many acknowledgments are due to the careful assistance of Mr. Henry Arthur Smith, Barrister-at-Law, of 1, E'ew Square, in passing the Work through the press. W. W. M. Lincoln's Inn, Octoier, 18S0 Digitized by Microsoft® Digitized by Microsoft® CONTENTS. CHAPTEE I. INTRODUCTOKY. CHAPTEE II. MORTGAGES AT COMMON LAW. Sect. 1. Vwum vadivm , 2. Mortuvm vadiwm 3. Conditions in mortgages PAGE PASS 6 Sect. 4. Tender of mortgage money . 10 6 5. Performance of condition . 12 • 8 j CHAPTEE III. MORTGAGE, WITH EQUITY OF REDEMPTION. Sect. 1. Civillaw followed . 2. Collateral advantage cannot be obtained 3. Parol evidence of right to . redeem 4. Eight of preemption , . . 6. Conditional purchase distin- guished from mortgage u Sect. 6, Conditional satisfaction of mortgage .... 23 16 7. Instalments » 8. Defeasible purchase distin- 18 guished from mortgage . 24 9. A mortgage must be mutual . 26 20 10. Conversion into mortgage by agreement subsequent . 28 >» 11. The result of cases . . . 30 CHAPTEE IV. NATURE OP AN EQUITY OP REDEMPTION, ITS RIGHTS AND INCIDENTS. Sect. 1. Nature of equity of redemption 31 2. On whom binding . , .32 3. Descent and devise . . . 33 4. Entail, curtesy, and dower . 34 Sect. 6. Legal and equitable assets . . 36 6. Eedemptionon mortgage by ap- pointment, and other matters 41 7. Forfeiture and escheat . . 42 b Digitized by Microsoft® CONTENTS. CHAPTER V. JUDGMENTS AS AFFECTING LAND BEFORE 1 & 2 VICT. 0. 110. PAOB Sect. 1. Statute Meroliant and Statute Staple 46 2. Vfxitoi elegit . . . . 46 3. Elegit how executed . . 48 4. Property subject to the writ at law 60 PAGE Sect. 6. Trust estates how far subject to writ 61 6. Eemedies of judgment creditor in equity fiZ 7. Trusts for sale . . . .53 8. Lien of judgment under Statute of Westminster . . . . 64 CHAPTER .VI. JUDGMENTS AS AFFECTING LAND UNDER 1 & 2 VICT. C. 110. Sect. 1. Extension of the legal right of execution . . . .56 2. Property now liable to the legal writ 68 3. Judgment a charge under 1 & 2 Vict. c. 110 . . . . 60 Sect. 4. Judgments only affect the in- terest of the debtor . . 64 5. Eemedy in equity . . . 65 6. Irish Act, 13 & 14 Vict. o. 29 . 6G CHAPTER VII. JUDGMENTS AS AFFECTING LAND UNDER THE LATER STATUTES. Sect. 1. St. 23 & 24 Vict. c. 38 (Act of 1860) 68 2. St. 27 & 28 Vict. c. 112 (Act of - 1864). . . . . . 69 3. The term "judgment," what it includes , Sect. 4. What amounts to actual de- livery 69 6. Eemedy of the judgment credi- tor under the Act of 1864 . 71 CHAPTER VIII. DECREES AND ORDERS HAVING FORCE OF JUDGMENTS UNDER STATUTE 1 & 2 VICT. C. 110, AND THE SUBSEQUENT STATUTES. Sect. 1. Orders for payment of money . 73 | Sect. 2. Orders of Probate and other Courts 76 CHAPTER IX. CHARGING ORDERS ON STOCKS, ETC, Skot. 1. St. 1 & 2 Vict. 0. 110, s. 14 . 80 2. What companies ore within the section 82 3. Eflect of charging order 83 Sect. 4. By -what courts the order may be made 84 6. What property within the sec- *'°° 6. Generally , 85 Digitized by Microsoft® CONTENTS. CHAPTER X. EEGISTRATION OF MORTGAGES. PAGE Sect. 1. County Registry . . .87 2. The Land Registry Act, 1862 . 90 3. The Land Transfer Act, 1875. . 91 TAOli! Sect, i. Enrolment of annuities . . 92 6. Landed Estates Court in Ire- land . . . . . . „ CHAPTER XI. DOCKETING AND REGISTRATION OF JUDGMENTS. Sect. 1. Docketing of judgments . . 95 2. Entry of judgment . . . 96 3. Registration of judgments in Counties .... 97 4. Registration under 1 & 2 Vict. c. 110 98 5. Re-registration of judgments , 99 Sect. 6. Closing of dockets . .101 7. Registration under act of 1860 102 8. Registration under actof 1864 „ 9. Registration of County Court judgments . . . „ 10. Judgments extension act, 1868 . CHAPTER XII. NOTICE OP JUDGMENTS AND PRIORITV UNDER THE REGISTRY ACTS. Sect. 1. Notice of judgments before 1 & 2 Vict. c. 110 2. Notice of judgments under 1 & 2 Vict. c. 110, & 2 & 3 Vict. c. II 3. Notice of unregistered judg- ment not now binding 4. Priority of judgments inter se 6. Priority of judgments and deeds 104 105 106 107 108 Sect. 6. Priority of deeds inter se . . 109 7. Difference between the Eng- lish and Irish registry acts 111 8. Registration is not notice . 113 9. Search not absolutely neces- sary 114 10. Notice of decrees and orders ,, 11. Indian registry acts . . . 115 12. Summary of the law of judg- ments CHAPTER Xm. PRIORITY OF JUDGMENTS IN THE ADMINISTRATION OF ASSETS AND IN WINDING UP. Sect. 1. St. 4 & 5 Wm. & M. c. 20 2. Effect of closing the docket 3. St. 33 & 24 Vict. c. 38 117 118 Sect, 4. Priority against executors 6, Execution on judgments Winding up . . h 2 Digitized by Microsoft® 119 120 CONTENTS. CHAPTER XIV. JUDGMENTS AS APPECTED BY BANKRUPTCY. PAGE Sect. l. Law before 1 & 2 Vict. o. 110 123 2. Under 1 & 2 Vict. c. 110, and subsequent statutes . . „ 3. Secured creditors under B. A. 1869 . . . 1 . . . 124 4. Executions under B. A., 1869. 125 PAGE Sect. 5. Judgments under warrant of attorney in insolvency. . 127 6. New security after discharge in bankruptcy . . . . 128 7. Fraudulent agreements with creditors . . . .129 CHAPTER XV. JUDGMENTS GENERALLY. Sect. 1. As afEecting leaseholds and chattels 2. Execution of judgments , 3. Execution under 1 & 2 Vict, c. 110, s. 12 . 4. Scire facias on judgments . 5. Effect of debtor being taken in execution 6. Interest on judgments . . 131 133 140 141 143 Sect. 7. Assignment of judgments . 144 8. Judgments u companies . 145 9. Contribution between lands subject to judgment . . 149 10. Effect of release of part of land charged . . . 150 11. Satisfaction of judgments . „ 12. Statute of Limitations . . 152 CHAPTER XVI. ATTACHMENT OF DEBTS. Sbot. 1. Lord Mayor's court 153 Sect. 2. Common Law Procedure Act, and Judicature Act . .164 CHAPTER XVII. WAEEANTS OE ATTORNEY. Sect. 1. Formalities of execution 2. EUing of warrant of attor- ney 8. By whom it may be given 4. Who may be the solicitor . . 6; Duties of the solicitor . 6, Setting aside warrant of attor- ney 159 160 161 162 » 164 Sect. 7. Warrant of attorney not a breach of a covenant not to assign .... 8. Judgment on old warrant of attorney . . . . 9. Effect of death of plaintiff or defendant. 10, Judgment how signed , . 11. Execution thereon 165 166 167 168 Digitized by Microsoft® CONTENTS. CHAPTER XVIII. CROWN DEBTS. Sect. 1. Debts of record 2. Debts not of record . 3. Simple contract debts i 4. Lands of Crown debtors charged . 5. Statutes staple 6. Landsof accountantstoCrown, when bound . 7. Chattels bound from teste 8. Crown, subject to prior equi- ties .... PAGE PAGE 169 Sect. 9. Execution of the extent 177 170 10. Property extendible at the 171 suit of the Crown . . . 178 11. Sale under 25 Geo. 3, c. 35 . 179 ») 12. Purchaser for value from 172 Crown debtor . 181 ) 13. Registration of Crown debts . 173 — Search and discharge . )J » 14. Administration of assets 183 15. Powers 184 174 16. Ireland tt CHAPTER XIX. STATUTES OF FRAUDULENT DEVISES. Sect. 1. Common law liability of heir 185 2. St. 3 & 4 Wm. & M., c. 14, and other statutes . . . 186 3. St. 3 & 4 Wm. 4, c. 104 . . 189 4. The statutes create no charge on the land, and the heir or devisee may alien . . 190 6. As to the colonies . . . 193 Sect. 6. Interest and other matters 7. St. 32 & 33 Vict. c. 46, specialty and simple contract pari 8. Administration of estate of deceased insolvent . , . 9. The result of the statutes 191 195 196 CHAPTER XX. THE SUBJECTS FOR MORTGAGE AND AGREEMENTS FOR MORTGAGE. Sect. 1. The subjects of mortgage 2. Exceptions. 198 I Sect. 3. Agreements for mortgage . 201 198 CHAPTER XXI. MORTGAGES AND DISPOSITIONS OF MARRIED WOMEN. Sect. 1. General power of husband and wife 203 2. Chattels real . . . . 204 8. Equity to a settlement . . „ 4. Assignment of vrif e's choses in action 205 6. St. 20 & 21 Vict.o. 67 (Malins' Act) 206 6. Separate use — real and per- sonal estate . . . • 208 Sect. 7. Contracts by married women 211 8. Separate estate with a power 214 9. Liability for debts of wife before marriage . .215 10. Separate property under Married Women's Pro- perty Act . . . . 216 11, Judicial separation or deser- tion .... 217 Digitized by Microsoft® CONTENTS. CHAPTEE XXII. MORTGAGE OF LANDS OF INFANTS AND LUNATICS PAGE 219 CHAPTEE XXIII. MOETGAGE OP FREEHOLDS. Sect. 1. Forms of mortgage 2. Covenants for title . . . 3. Covenant not to oaU in, Sec. .... . 222 225 Sect. 4. Insurance against fire . . 226 5. Assignment of outstanding terms . "" . . . . 227 6. Collateral securities . . 228 CHAPTEE XXIV. MORTGAGE OP COPYHOLDS. Sect. l. Form of mortgage . 2. Necessity of surrender . . 3. Admittance .... i. Satisfaction of mortgage on Court Eolls . . . . 5. Payment of fines and other matters . . . ' . 6. Conditional surrender to uses as mortgagee appoints 229 230 231 232 234 Sect. 7. Assignment by mortgagee . 235 8. Wills of copyhold . „ 9. Presentment and other matters . . . . 236 10. Covenant to surrender . . 237 11. Insurance of lives 12. Enfranchisement . . . „ CHAPTEE XXV. MORTGAGE OF LEASEHOLDS. Sect. 1. Mortgage by imderlease . . 240 2. Declaration of trust of nominal reversion 241 3. Mortgage by assignment . „ 4. Comparative advantages of mortgage by underlease and mortgage by assignment . 242 Sect. 5. Eenewal of lease by mort- lease by mort- 6. Eenewal , of gagor .... 7. Goodwill and other matters 8. Surrender and bankruptcy 9. Insuiance against fire 10. Delivery of title deeds 242 244 245 IT 246 CHAPTEE XXVI. MORTGAGES WITH POWER OF SALE. Sect. 1. Form of power of sale . . 247 2. Concurrence of mortgagor . 248 3. Notice of sale .... 249 4. Special conditions . . . 250 .5. When sale will be restrained . 251 6. Clause protecting purchaser against irregularities in sale 253 Sect. 7. By whom the power may be exercised .... 254 8. Receiver and other matters . 257 ■ 9. Trust of sale monies . . 258 10. Lord Cranworth's Act . . 259 11. Lord St. Leonards' Act . . 204 Digitized by Microsoft® CONTENTS. CHAPTEE XXVII. MORTGAGES UNDER TRUST TERMS TO RAISE PORTIONS AND MAINTENANCE. PAGE Sect. 1. Portions and time for raising. 265 2. The mode of raising portions . 268 3. WTiether power to raise by rents and profits authorises a mortgage .... 270 PAGE Sect. 4. The vesting and payment of portions .... 273 5. Portions for children other than an eldest or only son . 275 6. Legacy and succession duty . 278 CHAPTER XXVIII. MORTGAGES BY EXECUTORS, BY TRUSTEES FOE SALE AND FOR PAYMENT OF DEBTS, AND UNDER POWERS OF CHARGING. Sect. 1. Mortgages by executors . 2. Fraudulent mortgages by exe- cutors 3. Mortgage by devisee charged with debts .... 4. Mortgages by trustees . . 6. What words authorise a mort- gage or sale . . 6. Mortgage or sale by executors of realty under a charge of debts under the old law 7. St. 22 & 23 Vict. o. 35 . 280 Sect. 8. Insertion of a power of sale in a mortgage by trustees 293 283 9. Direction to pay debts out of rents and profits . . . 294 285 10. Annuities when not charged 286 on corpus .... 296 11. Cases of annuities charged on 287 corpus 297 12. Investments by trustees 299 13. Joint mortgage to trustees . 302 288 14. Trust deeds for creditors 303 291 15. Generally 304 CHAPTER XXIX. EQUITABLE MORTGAGE OR CHARGE. Sect. 1. Definition . . . .305 2. Informal agreement . . . ,, 3, Power of attorney . . . 307 Sect, 4. Lien from misrepresenta- tion 5. Sale to enforce charge . , 307 CHAPTER XXX. EQUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Sect.]. Statute of Frauds . . .308 Sect. 9. Deposit of part of the deeds . 316 Copyholds and other matters 317 Renewed lease . . .318 Bankruptcyj , Equitable depositee not liable to covenants . . . ,i Other matters . . . . 319 Deposit by tenant for life . „ Whether remedy foreclosure or sale 320 GeneraUy . . . .322 1. Statute of Frauds . 308 Sect. 9 2. Deposit whether recognised 10. at law . . . . . 309 11. 3. Agreement whether void under 12. Statute of Frauds !) 13. 4. Deposit diverse inttdtu . . 312 5. Future advances . )} 14 6. To whom deposit may be 15. made, and other matters 313 16 7. Purchase or mortgage with notice 314 17 8. Solicitor and other cases 1) Digitized by Microsoft® CONTENTS. CHAPTER XXXI. WELCH MOETGAGES PAGE 825 CHAPTER XXXII. 'MORTGAGES BY TENANTS IN TAIL AND BY DEFECTIVE CONVEYANCE. Sect. 1. Mortgages by tenants in tail . 328 2. St. 3 & 4 Wm. 4, c. 74 . . 329 3. Copyhold . . .... 331 4. Defective assurance by bank- rupt tenant in tail . . „ Sect. 5. Effect of covenant for further assurance .... 333 6. Eesult of cases 33G CHAPTER XXXIII. THE MORTMAIN ACTS, AND SECURITIES VOID THEREUNDER . 339 CHAPTER XXXIV. MORTGAGES OF ADVOWSONS, CHURCH LIVINGS, RECTORIES IMPROPRIATE, AND TITHES. Sect. 1. Mortgage of advowsons . . 341 2. Charges void under 13 Eliz. c. 20 342 3. Collateral securities valid . 344 Sect. 4. Sequestration . . . 345 5. Bankruptcy . . . . 348 6. Charges for building rectories 350 7. Statute of Limitations . , 350 CHAPTER XXXV. MORTGAGES BY RAILWAY AND OTHER COMPANIES. Sect. 1. Power to borrow generally . 358 2. Powers and liabilities of directors .... 855 3. Debentures , 4. Lloyds' bonds . . . . 357 5. Illegal debentures valid to extent of advances . . 358 6. What property may be mort- . gaged „ 7. Calls, &o. .... 360 8. Bond, when a charge . . . 361 9. Pari passu charge of deben- tures 10. For what purpose given . . 362 11. Debentures subject to equities „ 12. Issue of debentures at a dis- count . . . .363 Sect. 18. Payment by baUot . . . 14. Debenture stock . 15. Remedy on debentures . . 16. Priority of debentures and 17. Eegistry of mortgages and transfers . ... 18. Eailway arrangement schemes .... 19. Suspension clause in Ar- rangement Acts . , , 20. Compensation under Com- panies Acts 21. Mortgage Debenture Acts 22. General matters . 863 364 366 367 369 870 Digitized by Microsoft® CONTENTS. CHAPTER XXXVI. MORTGAGES OP THE EQUITY OP REDEMPTION. Sect. 1. Qld prior est tempore, potior estjti/re .... 371 2. Disadvantages of mortgage of equity of redemption . . 373 8. Clandestine mortgages, 4 & 5 Wm. 3, 0. 16 . . . Sfli PAGE PARK Sect. 4. Concealment of incumbrances from abstract . . . . 377 5. DifEerence of equity of redemp- tion from reversion expect- ant on mortgage term . . „ CHAPTER XXXVII. MORTGAGES IN BANKRUPTCY AND WINDING UP. Sect. 1. General rights of mortgagee . 2. Who is a 'secured creditor,' and his remedies . . . 3. Proof by secured creditor 4. Jurisdiction in Chancery and Bankruptcy .... 6. Sale in Bankruptcy . . . 6. Mortgage by deposit of title deeds 379 Sect. 7. Eight to interest 395 8. Eight to rents and profits 396 381 9. Eight to growing crops . »» 10. Protected transactions . 397 386 387 11. 12. Preferential debts . Generally 398 393 13. Mortgages in Winding up 399 CHAPTER XXXVIII. LIENS ON LANDED ESTATE. Sect. 1. Vendor's Hen for purchase money .... 401 2. Vendee's lien if contract re- scinded 402 3. What security takes away the lien of the vendor . . 404 4. Whether lien affects third persons . • , . . 408 6. Vendor's lien against a rail- way or other company . 410 6. Marshalling, how affects lien . 411, Sect. 7. Vendor's lien does not apply to personal estate . . . 412 8. Covenant to mortgage and covenant to settle . .413 9. Lien of trustees . . . 415 10. Lien for breach of trust, &c. 416 11. Lien of tenant for life . . 419 12. Lien of joint owners . . 420 13. Lien of ionafide possessor . 421 14. Lien on West India estates . 422 15. Liens in other cases . . 42o CHAPTER XXXIX. MORTGAGE OP CHATTELS OR MOVEABLES. Sect. 1. Mortgage without deed . . 426 3. Delivery of possession . . „ 3. Eetention of deed . . .427 4. Possession consistent with deed 428 Sect. 6. Form of deed . 430 6. Eights of the mortgagee to possession, &c 431 Digitized by Microsoft® CONTENTS. CHAPTEK XL. MOETGAGE OP AFTEB-ACQUIEED PROPEETY. Sect. 1. Future chattels 2. Power to seize PAGE . 432 . 434 Sect. 3. Expectancies . 4. Future calls PAGE . 435 . 436 CHAPTEE XLI. MORTGAGE OF FIXTURES. Sect. 1. Meaning of term ' fixtures ' . 437 2. What are fixtures and what moveables . . . . 438 3. What description is sufficient 440 Sect. 4. Fixtures pass though not named . . . . . 440 5. Fixtures subsequently annexed 441 6. Foreclosure or sale . . . 442 CHAPTEE XLII. ORDER AKD DISPOSITION CLAUSE IN BANKRUPTCY. Sect. 1. B. A., 1869, s. 15 . 2. Decisions on old statutes ap' pUcable .... 3. Choses in action 4. Consent of true owner 5. Mortgagor and mortgagee 6. Sole possession necessary , 7. Custom of trade 8. Wharfinger and other cases of constmctive delivery . . 9. Fixtures and utensils of trade 444 445 446 » 448 449 450 452 Sect. 10. Ships 454 11. Possession of uncertificated bankrupt . . . . 12. Shares in companies . 13. Some cases not within the statute 14. Other cases within the statute .... 15. Vesting 16. Generally .... 455 456 457 458 CHAPTEE XLIII, BILLS OP SALE ACTS. Sect. 1. Registration under Bill of Sale Act of 1854 .... 2. Eegistration under act of 1878 3. Defeasance, &c 4. The 'register' under the act of 1878 . . . . 5. What ' bill of sale ' meant under act of 1?54, and cases 6. What 'bill of sale' means under act of 1878 . . . 7. What ' personal chattels ' meant under the act of 1854,and cases . . . 8. What 'personal chattels' means under the act of 1878 9. Trade machinery' under act of 1878 459 461 462 463 465 468 469 Sect. 10. ' Apparent possession ' under both acts, and cases . . 470 11. Cases upon registration . . 472 12. The rights of third parties . „ 13. Priority of registration of bills of sale inter se . . 473 14. Order and disposition clause in bankruptcy . . . 474 15. Eenewal of registration . ,. 16. Entry of satisfaction . . 475 17. Successive biUs of sale to avoid registration . . 47G 18. Contents of affidavit of witness . . . . 477 19i Other matters . . . 479 Digitized by Microsoft® CONTENTS. Sect. 1. Order on funds in hands of third persons . . . 481 2. Bills of lading and specific appropriation . . . . 485 CHAPTEE XLIV. EQUITABLK ASSIGNMENT OP FDNDS. PAGE PAGE Sect. 3. Appropriation of bills to goods 487 4. The rule in Exp. Waring 490 CHAPTEE XLV. MORTGAGE OF DEBTS AND SUB-MORTGAGES. Sect. 1. Mortgages of debts 2. Sub-mortgages . 494 Sect. 3, Assignment of debts under theJud. Act . . .497 CHAPTEE XLVI. MORTGAGES OF POLICIES OF ASSURANCE. Sicct. 1. tJtilityofmortgages of policies 600 2. Notice necessary to complete . 501 8. Insurance on mortgages of estates for liyes . . . 502 4. Where mortgagee-company is its own insurer . . , 503 5. Bonuses 6. Sub-mortgage . . . . 504 7. Whether poUcy belongs to debtor or creditor . . 504 8. Extra premiums on going abroad 506 9. Effect of suicide . . ,, Sect. 10. Effect of misrepresentation . 11. Interest in life . . . . 12. In whose name policy should be taken .... 13. Necessity of an assignment . 14. St. 30 & 31 Vict. c. 144 . . 15. Contingencies for which the mortgage should provide . 16. Covenant to keep up policy . 17. Future premiums barred by certificate in bankruptcy 18. Generally .... 507 508 609 510 611 CHAPTEE XLVII. FRAUDULENT MORTGAGES UNDER 13 ELIZ. C. 5. Sbct. 1. Preference at common law . 514 2. St. 13 Eliz. c. 5 . . . . 515 3. Presumption of fraud from continuance in possession . 516 4. What insolvency is within the statute 518 5. The intent to defraud . .619 6. Subsequent creditors . . . 521 Sect. 7. Ante-nuptial and post-nup- tial settlements 8. Trust deeds for creditors 9. Consideration may be proved aliunde . . . . 10. Purchase in name of wife, &c. 11. Suits to set aside settlements under the statute 522 524 525 Digitized by Microsoft® CONTENTS. CHAPTER XLVIII. Fraudulent settlements under 27 eliz. c. 4. PAGE Sect. 1. St. 27 Eliz. c. 4 . . .527 2. Property included in the statute ... , . . 628 3. What deeds are voluntary and fraudulent -within it . . „ i. Limitations to collaterals . . 530 Sect. 5. Who are purchasers within the proviso .... 531 6. Purchaser from heir or devisee not within it , , . . 533 7. Generally . . , . „ CHAPTER XLIX. FRAUDULENT AND VOID MORTGAGES UNDER THE BANKRUPT LAWS AND WINDING-UP ACT. Sect. 1. Mortgages by fraudulent pre- ference generally , . . 534 2. Mortgages of all a man's pro- perty 537 Sect. 3. Fraudulent mortgages under B. A. 1869, s. 92 . . . 542 4. Settlements when void in bankruptcy .... 544 5. Winding-up act . . . . 545 CHAPTER L. PLEDGE BT FACTORS. Sect. 1. Power of factors before the Factors Acts . . . 547 2. Pledge by factors under old acts 548 Sect. 3. St. 5 & 6 Vict. c. 39 . . 550 4. Pledge of bills of exchange . 553 5. Authority of factor to sell . . „ 6. Set off, purchaser from factor. 554 CHAPTER LI. MORTGAGES OF SHIPS AND FREIGHT, AND BOTTOMRY BONDS. Sect. 1. Merchant Shipping Act of 1854 566 2. St. 25 & 26 Vict. c. 63 . . 660 3. Cases under the statutes . 661 4. Powers of the master , . . 566 Sect. 5. Bottomry bond 566 6. Mortgage of freight . 572 7. Mortgage of and other deal ings with cargo . 57.-) 8. Remondentia 576 Digitized by Microsoft® CONTENTS. CHAPTER LII. PLEDGES OK PAWNS. PAGK 578 579 Sect. 1. Definition . . . _ 2. Distinction between mortgage and pledge . . , . 3. What property may be the subject of a pledge , . „ 4. The title of the pledgor . . 580 5. Delivery of pledge and efiect of re-delivery . . . 581 6. For what debts or engage- ments a pledge may be made 682 PA8E . 582 . 583 Sect. 7. Eights of pledgee . 8. Sale of pledge . 9. Pledge of negociable securi- ties .- , , , . 584 10. Transfer of pledge , . . 586 11. Distress and execution . 686 12. Use and care of the pawn . 587 13. The Pawnbrokers Act , . 588 CHAPTER LIII. MORTGAGES OF STOCK 590 CHAPTER LIV. LIENS IN GENERAL. Sbct. 1. Lien at common law, general or specific .... 2. Lien by contract , , . . 3. Lien by usage 4. Lien from course of dealing . 6. Lien of factors, wharfingers, and others , . . . 6. Lien on ships and cargoes, and maritime liens 7. Execution and other matters . 693 696 699 601 607 Sect. 8. Stoppage in, transitu , . 608 9. Bills of Lading Act, 18 & 19 Vict. c. Ill . . . 613 10. Lien of partners and others . 616 11. Lien on policies . . . 618 12. Effect of laches . . .619 13. Specific security ousts Uen . 620 14. Liens, how affected by ar- rangement deeds . . . 621 CHAPTER LV. LIEN OF SOLICITOR. Sect, 1. Lien on papers, &c. . . 624 2. Lien on funds . . . . 628 3. Lien subject to equities be- tween the parties . . 629 4. Compromise between clients . 630 6. Change of solicitor . , . 631 6. Production of papers . . 632 Sect. 7. Trustee— client . . , 633 8. Agency . . . .634 9. Other matters . . . . 6.35 10. Lien under 23 & 24 Vict. c. 127 . . . . 6.'i6 11, Liability of solicitor for neg- ligence 640 Digitized by Microsoft® COOTEXTS. Sect. 1. Merger of lower in higher se- curity 642 2. Keeping alive charge when paid ofE . . . . 614 CHAPTEE LVI. MERGEB OF SECUEITIES PAGE Sect. 3. Mortgagee becoming mort gagor .... 4. Merger as between represen tative , . . • 6. Jud. Act .... PAGE 64G 652 CHAPTER LVII. ASSIGNMENTS OF MORTGAGE 654 CHAPTER LVIIT. Sect. 1. Generally 2. Interpretation of term ' mort 10. 11. 12, What are mortgages within the definition Security for future advances Bent-charge, annuity, &c. . Transfers and further chargi Copyholds Limitation of equity of re demptibn in mortgage . Foreign securities . Ad valorem duties Ships .... Mortgage, &c., of stock . STAMPS. 661 662 663 666 667 669 673 Sect. 13. Penalty on unstamped in- struments .... 14. Duplicates and counterparts 15. Crown deeds 16. BiUs of sale .... 17. Instruments containing dis- tinct matters 18. Cognovit 19. Progressive duties 20. Sale subject to a mortgage . 21. Benefit building societies 22. Annuity .... 23. Order to pay, or equitable assignment 674 675 676 677 678 679 CHAPTER LIX. RELATIVE ESTATES OP MORTGAGOR AND MORTGAGEE. Sect. 1. Whether mortgagor tenant of mortgagee . . . . 680 2. Effect of proviso for quiet en- joyment tintil default . . 684 Sect. 3. Attornment clause . . . 687 4. Mortgagor tenant at a rent . 688 6. Power of distress . . . 690 6. Generally . . . .691 Digitized by Microsoft® CONTENTS. CHAPTER LX. PEIVILEGES ATTENDING THE ESTATE OP THE MOETGAGOE. PAGE Sect. 1. Vote for parliament and settle- ment under poor laws . . 693 2. Mortgagor not accountablo for the rents ... . 694 PAGE Sect. 3. Staying proceedings under 7 Geo. 2, c. 20 . . . 096 i. Nomination as to a living and other matters . . , , 702 6. Generally . . , .703 CHAPTER LXI. THE RESTRICTIONS AND DISABILITIES ANNEXED TO THE ESTATE OP THE MORTGAGOR. Sect. 1. WastS by mortgagor 2. Liability to eviction by mort- gagee 3. Emblements .... 4. Actionfor mesne profits against lessee 6. The remedy of lessee v. mort- gagor on eviction. 6. Leases by mortgagor before mortgage 7. Leases by mortgagor after mortgage . . . . 704 705 706 707 708 709 Sect. 8. Anomalous position of the mortgagor in regard to tenants before the Jud. Act . 713 9. Powers of mortgagor under the Jud. Act . . .714 10. Estoppel 716 11. Joint leases by mortgagor and mortgagee . . .717 12. Assignee of mortgagor . . 719 13. Generally .... 720 CHAPTER LXII. PRIVILEGES ANNEXED TO THE ESTATE OP THE MORTGAGEE. Sect. 1. Eight of mortgagee to posses- sion 722 2. Rights of mortgagee against the tenants . . . . 723 3. All remedies may be pursued at once . . . . „ 4. Collateral securities . . . 727 6. Allowances to mortgagee . „ 6. Vote and settlement, &c. . 729 Sect. 7. Account for rents by mort- gagee .... 729 8. Production of title deeds . „ 9. Mortgagee's right to costs . Til 10. Costs of disclaimer . . 732 11. Stop order and other matters 733 12. Specialty or simple contract 735 13. Insurance and other matters 736 Digitized by Microsoft® ixiv CONTENTS. CHAPTEE LXIII. THE EESTEICTIONS AND DISABILITIES ANNEXED TO THE ESTATE OF THE MOETGAGEE, SECt. 1. Lease by mortgagor to mort- gagee . 2, Leases by mortgagee . . . . 3. Toting for parliament . 4, As to assignment by mortgagee in possession . , , , 6, Loss from acts of mortgagee . 6. Mortgagee not entitled to commission . . ' , 7. AdvowBon 8. Waste by mortgagee PAGE 739 740 741 742 743 745 PAGfE Sect. 9. Eepairs and. improvements . 746 10. Forfeiture by mortgagor . 747 11. Mortgagee not entitled to ■account of past rents . 748 12. Loss of title deeds . . „ 13. As to production of title deeds 750 14. Mortgage to a solicitor for his costs .... 751 15. Loss by destruction of subject „ 16. Generally . . . . . 752 CHAPTEE LXIV. TRUSTEE ACT, 1850. Sect. 1. Lunatic mortgagee . . . 753 2. Infant mortgagee , . . 754 3. Trustee out of jurisdiction, or not to be found, &c. . . 755 4. Heir of mortgagee out of juris- diction, &c 756 Sect. 6. Generally , . . .757 6. Costs of proceedings vmder these Acts . . . , 760 7. St. 37 & 38 Vict. c. 78 761 CHAPTEE LXV. NOTICE. Sect. l. Notice express or implied 2. Where vendor has notice and vendee has not, and vice vend .... 3. Notice not applicable to in- cumbrances on land . 4. Notice to complete title . 5. Notice by trustee in bank- ruptcy .... 6. What amounts to notice 7. Constructive notice 762 764 765 771 772 776 Sect. 8. Notice from tenancy or pos- session 777 9. Notice from possession of title deeds .... 779 10. Notice through solicitor or counsel . . . , 733 11. Notice of deed is notice of its contents .... 786 12. Other matters . . . . 790 13. Decree and Zi*^CTjaI«?t«. . 79X Digitized by Microsoft® CONTENTS. CHAPTER LXVI. TACKING. Sect. ] . Tacking of coats and expenses 2. Tacking of general or specific lien .... 3. Tacking of bond debt. i. Tacking of simple contracts 5. Tacking against mesne incum- brances PAGE PAGE 79.i Sect. G. Brace v. Duclie-ss of Marl borough 817 807 7. Tacking against sureties 825 809 8. Tacking of further advances 82(; 811 9. Tacking in bankruptcy. 827 10. Experimental statute )> 813 11. Summary 828 CHAPTER LXVII. CONSOLIDATION OF SECURITIES. Sect. 1. DifEerenoe between consolida- tion and tacking . 2. Where only one mortgagor and one mortgagee . . . . 3. Transferee of the two mort- gages entitled i. The heir or devisee bound u. Equities of redemption in different persons . 6. Union of the mortgages . . 830 831 832 833 Sect. 7. Rule applies whether securi- ties legal or equitable 8. Effect of notice . . . 9. Bankruptcy .... 10. Generally 11. Cases where consolidation is not applicable . 12. Result of the cases . . . 13. Summary .... 834 835 837 839 840 CHAPTER LXVIII. PEIORITY OF INCUMBRANCES. Sect. 1. The legal estate must prerail . 843 2. Qni prior est tempore, 2'otwr est jure . . . 844 3. Otljer cases of priority . . 846 4. Priority lost by fi'aud . . 848 u. Pi-iority lost by omission to 1'egister 850 G. Priority from possession of title deeds . . . . „ Sect. 7. Precautions by second mort- gagee .... 857 8. Priority by getling in the legal estate . . . . 858 9. Purchaser for value without notice . . . .862 10. Effect of the Jud. Act . . 864 11. Generally . . . .865 Digitized by Microsoft® CONTENTS. CHAPTEE LXIX. INTEREST. Sect. 1. Usual covenants for payment 2. Conversion of interest into principal 3. Arrears of annuity do not carry interest . . . . . 4. Interest on judgments and bond debts ..... 5. Interest when allowed in ad- ministration suits . . . 6. Interest in other cases . 7. Interest payable by trustee or executor, &c iOE PAGE 867 ■ Sect. 8. St. 3 & 4 Wm. 4, c. 42 . 878 9. Interest by tenants for life 868 and others . 879 10. Agreement for reduction oi 871 interest on punctual pay- ment. 883 872 11. ' When interest stops . 885 873 875 12. Apportionment of interest 887 13. Generally . . . 889 14. Usury 890 876 15. Income tax . )i CHAPTER LXX. EEVERSIONAEY, GAMING AND OTHER INVALID SECURITIES. SuCT. 1. Dealings with reversionary interests .... 891 2. Sale of Eeversions Act . . 893 3. Mortgages by persons under undue influence . . . 894 Sect. 4. Mortgages by clients to their solicitors • 895 5. Immoral and other invalid securities . . . ■ . 897 6. Gaming securities . . . 898 CHAPTER LXXI. STATUTE OP LIMITATIONS AS TO INTEREST. Sect. 1. St. 3 & 4 Wm. 4, o. 27, s. 42 . 904 2. St. 3 & 4 Wm. 4, c. 42, s. 3 . 905 3. Conflict between the two statutes . . . . ,1 4. Express trust . . . . 906 6. Cases within sect. 42 , . „ Sect. 6. The exception in the proviso to sect. 42 . . . . 908 7. From what time the six years run 909 8. Acknowledgment by whom . „ CHAPTER LXXII. STATUTE OP LIMITATIONS IN BAR OP FORECLOSURE. Sect. 1. St. 3 & 4 Wm. 4, c. 27, and other statutes . . . 910 2. 1 Vict. 0. 28 . . . 911 3. Cases on the statutes . . 912 i. Express trusts . . . . 914 5. St. 37 & 38 Viot. c. 57, s. 10 . 916 Sect. 6. Creditors' suits, how far baj the statute .... 916 7. Judgments 917 8. Limitation in covenant and debt 918 9. Payment or acknowledgment 10. Disabilities . . . .923 Digitized by Microsoft® CONTENTS. CHAPTEE LXXIII. STATUTE OF LIMITATIONS IN BAR OF REDEMPTION. PAGE Sect. 1. Law prior to the Statute of. Limitations . . '. . 02.") 2. St. 3 & 4 Wm. 4, c. 27, B. 24 . 927 3. Acknowledgment before the statute 929 PAGE Sect. 4. Acknowledgment under 3 & 4 Wm. 4, c. 27, s. 28 . . 931 5. What is sufficient acknowledg- ment under this sect. . . 934 6. Disabilities . . . . 93G CHAPTEE LXXIV. LOCICE IQNG's act, 17 & 18 VICT. c. 113 Sect. 1 St. 17 & 18 Vict. c. 113 . . 937 2. What is ' contrary inten- tion?' 938 Sect. 3. Lien for purchase money and St. 30 & 31 Vict. c. 69 . . 940 4. Leaseholds and St. 40 & 41 Vict. c. 34 . . . . „ CHAPTEE LXXV. OUT OF WHAT FUND MORTGAGE DEBTS PAYABLE. Sect. 1 . Primary liability of personalty before Locke King's Act . 941 2. Exoneration of personalty . 943 3. Cases of exemption . . . 944 4. Cases where personalty not exempted .... 946 5. When personalty exempt from payment of legacies . . 949 6. Generally . . . .950 7. Conclusions fi'om the cases . 951 8. Charges on real estate in aid of the personalty . . . 952 9. Mixed fund for debts and legacies .... 956 Sect. 10. Order of applying realty inter se 957 11. Summary of order of appli- cation of assets . . . 15. Out of what payable fund costs 963 12. When the loan is not the proper debt of the party . „ 13. When the loan is made the proper debt of the party . 964 14. Mortgages by husband and wife .... 972 974 CHAPTEE LXXVI. MARSHALLING OF ASSETS. Sect. 1. The general rule . . . 977 2. In applying the primary lia- bility of personalty . . . 978 3. Marshalling between simple contract and specialty cre- ditors 980 4. Contribution . . . . „ Sect. 5. The rule does not prejudice third parties 982 6. St. 3 & 4 Wm. 4, c. 104 . 985 7. Proof in administration suits 987 8. As to Tolunteers » 9. Generally 988 c 2 Digitized by Microsoft® CONTENTS. CHAPTER LXXVII. FOKECLOSUEE AXD OTHER EEMEDIES. Sbct. 1. Principle of foreclosure 2. Sale instead of foreclosure in Ireland and the colonies 3. Rale instead of foreclosure generally .... 4. Foreclosure or sale against infants . . . , . !j. Foreclosure against manied women .... 6. Sale under 15 & 16 Vict. c. 86 7. Sale under Confirmation of Sales Act ' , . . . 5. Sale under Trustee Act of 1850 and 1852 . . . 9. Foreclosure under the Liqui- dation Act, 1868 10. Foreclosure or sale against the Crown . . . . 11. Foreclosure or sale in hanki-uptcy 12. Parties to foreclosure or PAGE PAGE 990 Sect. 13. Forfeiture necessary . 1018 14. Evidence of security and 992 consideration . . . ») 15. Common decree for fore- J) closure . . . . 1020 16. Pro confesso ,, 994 17. Delivery of title deeds 1022 18. Time for payment . 1023 998 19. Payment under decree )J 999 20. Enlargement of time for payment . . . . 1024 1001 21, Order absolute for fore-- closure .... 1026 » 22. Opening the foreclosure . ») 23. All the remedies may he 1002 pursued at the same time .... 1028 lOO.'J 24. Trust deed for creditors . 1030 25. Administration suit . . )) 1004 26. Generally .... 1033 ' CHAPTER LXXVIII. TO WHOM THE MONEY AND LANDS IN MORTGAGE WILL BELONG. Sect. 1. Mortgages are personal estate 103G 2. Conversion .... 1037 Sect. 3. Joint mortgagees 4. Other cases 1038 1039 CHAPTER LXXIX. rUECHASING INCUMBRANCES ir42 CHAPTER LXXX. DEVISES AND BEQUESTS OP MORTGAGES. Sect. 1. What words will pass debt and land . . . 1045 2. Ademption . . . . 1048 3. Whether general devises pass , the legal estate . . . 1049 Sect. 4. Result of cases . . . 1054 5. KSect of foreclosure after will ..... 1055 6. Generally 1056 Digitized by Microsoft® CONTENTS. CHAPTEE LXXXI. MOETGAGES OP BENEFIT BUILDING SOCIETIES. Sect. 1. Friendly Sociolios Acta 2. Statute G & 7 Wm. i, c. 32 3. Form of decree 4. Stamps .... PAGE 1057 1059 1060 1062 PAGE Sect. 5. General powers . . . 1063 6. Arbitration .... 1064 7. Building Societies Act of 1K74 „ 8. Building Societies Act of 1877 1067 CHAPTER LXXXII. THE VENDORS AND PUECHASEES ACTS 1069 CHAPTER LXXXin. REDEMPTION. Sect. 1 General right of redemption 1071 2. Parties to suit for redemption 1073 3. Parties entitled to redeem . 1076 4. Limitation of equity of re- demption different from old uses ... . . 1080 G. Offer to redeem . 1086 6. Notice to redeem . . . 1087 7. Judgment for redemption . 1089 8. Wliere several persons en- titled 1094 Sect, 9. Eeconveyance and delivery up of possession 10. Delivery up of title deeds . 1 1 . Production of title deeds . 12. Costs on higher or lower scale 13. Dismissal of the action for redemption 14. Generally . . . . 1096 1097 1098 1099 CHAPTER LXXXIV. ACCOUNTING. (Sect. 1. Mortgagee in possession . 1101 2. Annual rests . . . . 1103 3. Allowances .... 1109 4. Subsequent interest and carrying on accounts . . 1111 Sect. o. 6. 7. MaUi. fides of mortgagee As to ships Account binding on subse 1112 1115 8. quent incumbranceis . Generally .... lllG CHAPTER LXXXV. RECEIVER. Sect. 1. Receiver appointed by the Court 1118 2. Eeceiver appointed by the parties 1124 Digitized by Microsoft® Sect. 3. Eeceiver appointed under Lord Cranworth's Act . 112G CO^'TENTS. CHAPTEE LXXXVI. EIGHTS AND LIABILITIES OF THE SURETY OF THE MOETGAGOK. PA&E Sect. 1. A surety is entitled lo all the seourities of the mort- gagee 1127 2. Mercantile Amendment Act, 1856 1128 3. Further securities by princi- pal 1129 4. Discharge of the surety . . 1130 PAGE 1134 Sect. 5. Sot ofE . . . 6. Reservation of rights against the surety . . . • 1135 7. Bankruptcy i 8. Liquidation and composition 113C 9. Interest 1137 10. Generally i Sect. CHAPTEE LXXXVII. STATUTORY MORTGAGES. 1. Generally .... 1139 2. Turnpike trusts . . . .1140 3. The Permanent Improve- ment Act 1142 4. The Inolosure Acts . . . 1143 5. The Drainage Acts 1144 6. Commissioners Clauses Act, 1847. . . . . 1148 7. Copyhold Enfranchisement Acts 1149 8. Tithe Commutation Act ij 9. Ecclesiastical benefices se- curities 1150 10. The Charitable Trusts Acts )) Sect, 11. Municipal Corporations 12. Public Health Acts . . 13. Sewers Acts 14. Public "Works and Fisheries 15. Land Tax Redemption Act. 16. West India Government mortgages 17. Railway Acts . . . . 18. Companies Clauses Act 19. Canal Companies Act . . 20. Debenture Stock . 21. Mortgage Debenture Acts . 22. University & College Estates Act 1151 1152 1153 1154 1155 CHAPTEE LXXXVIII. MISCELLANEOUS CHAPTER. Sect. 1. Release of the mortgage debt 2. Accord and satisfaction 3. County court jurisdiction 4. Mortgage of shares in a company .... 1156 Sect. 5. Redemption under Lands 1158 Clauses Act, 1845 . .1160 1159 6. Investments under the Lands Clauses Act, 1845 . . . ,. )' 7. Novation . . . .1161 8. Generally. . . . 1164 Digitized by Microsoft® TABLE OF CASES. PAGE , PAIJK Aaltje 605 Agricultural C'attlc, ic, Co. . 367 Abbisr. Winter. . . . 119 Aiua 752 Abbott, lie 1099 Ainslie v. Harcourt . . . 295 ■V.Edwards. . . . 1014 Ainsworth, Ej:p. . . .389 V. Straiten . 04, 307, 1124 r. Eou . . . . 1100 Abell V. Daniel . . . 636, .'ilS Aitkin, Jic 632 Aboraman Ironworks i>. Wickens 402, 3, Akcnnan v. Humphcrv . 608, 9, 612 616 Albert Life Ass. Co., lie . . 408 Aberdeen v. Cliitty . . . 1119 Albert v. Grosvenor Investment r. Newland . . . 344 Co 23 Abergavenny's Case ... 60 Albion Steel, &c., Co. . 126,400 Abington v. Green . . . . 1019 Alchin V. Hopkins . . . . 343 Alchorne v. Gomme . . .710 Ab.solom V. Gething . . . 1059 Acatos V. Bums . . . 576, 577 Aloock D. Sparhawk . . .955,6 Ackland r. Gravener . . .1118 Aldborough (Lord) v. Trye . 659, 892 Ackroyd, Exp. . . . 489, 491 Alden r. Foster . . 1025, 1112 r. Mitchell . . 442, 443 Alderson, Exp 482 Acraman v. Bates . . . . 455 r. Temple . . . 534, 6 V. Corbett . . .522 V. White . ■ 22, 325, 933 V. Herniman . . . 160 Aldred v. Constable . . . 637 Acton, Exp. . . . 440, 453 Aldrich V. Cooper 179, 411, 977, 8, 981, 6 V. Acton . . . . 100 Aldridge v. Lord Wallscourt . 944, 5 V. Peirce . . . .1077 V. Westbrook 619, 649, 731, V. White . . . . 210 985, 1030 Aldworth v. Eobinson 825, 838, 1009, Adames v. Hallett . . . . 522 1093 V. Meyrick . . . 947 Aloinbrook v. Hall . . .900 Adams, Exp 383 Alexander . . . 567, 570, 605 V. Adams . . . 275 Exp 396 V. Angell . . . . 646 V. Brame . . . 339 V. Barry . . .935 V. Brown ... 10 ■ V. Beck .... 276, 7 V. Crosby . . 53, 248 V. Claxton 313, 427, 583, 811, • V. Duke of Wellington 200 812 • V. Simnis . . . 575 V. Gamble . . . 210 Algeos' Tr 2o4 • r. Gould . . .997 Aline ^>'oi ?'. Graham . . . 477 Alison, Exp 879 V. Meyrick . . . 947 Ec ... 258, 9, 928 V. Pavnter 1012, 3, 4, 107,1 Allan T. Backhouse 270, 1, 295, 567 V. Scott . . 261, 252. V. Gott 956 V. Sworder . . . 1102 «. Gripper .... 608 V. Tapling . . . 1158 A'Ucard, Exp. . 99, 108, 473, 1013 Addecott v. Addecott . . . 296 Allen, Exp. . . . . . 473 Addison v. Cox . . . 774, 707 Re 270 Adkins v. Bliss . . . . 74 ■ • V. Aldridge . . . . 649 V. Graves . . . 994 V. Allen .... 939 Adsetts V. Hives . . . . 857 V. Anthony 778 Afina 604 V. Bonnett 519, 535, 7, 9, 540, 542 Agar V. AtheniEum Life Ass. V. De Lisle . . 1127, 1130 Co 365, 6, 7' ■;;. Knight 372, 645, 794, 824, Aggas V. Pickerell . . . . 928 853, 4, 5, 860, 1016 Agra Bank, He Worcester . . 773, 5 V. Papworth . . . 1116 1). Barry . 110, 114, 785 V. Smith . . . . 598 Agra & Masterman's Bank, Jic . 363 V. Thompson . . ■ 477, 8 D§^tzed^li ^/croso7f(f^i'=^-- ■ • ■ ^'' TABLE OF CASES. PAGE AUeiiljy V. Daltoti . 22, 736, 942 AUetson v. Chichester . 502, 773, 776 Alliance Bank, Hscp. . , , 490 V. Broom . 107, 201 ' — - v. Holford . . 630 Allison, lie ... . 383, 928 AIlsop V. Day .... 464 AUwood V. HeywooJ . . . 850 .Alsager, JUxp 835 V. Spalding . . . 129 Alsop V. Bell .... e-^il Alston V. Parker . . . 802, 1031 Alton V. Harrison . 429, 519, 636, 7 Amand v. Lady Jersey . . . 521 Ames V. Mannering . . . 919 i\ Parkinson . . . . 299 V. Trastees of Birkenhead Docks .... 366, 1121 Amesbury v. Brown . . 879, 882, 3 Amlmrst v. Dawling . . . 41 Amicable Society v. Bolland . 506 Amis V. Lloyd . . . . 698 Ancaster v. Mayer 943, 947, 965, 8, 9 Anchor Assurance, Be 1163, 4 Ancona v. Rogers . . . 470, 1 Anderson, Exp. . . 386, 394 V. Anderson . . . 296 V. Clark . . 601 — I — V. Fitzgerald . . . 607 V. Pignet . 645, 662 V. Eadcliffe . . . 895 . 1016 Andertou v. Cook . . . 947 Andrew, Se . 634 V. Wrigley 280, 281, 2, 3, 4, 763 Andrews, Exp. . 504, 6 Ti-ust, Re . . 646 V. Berry . . . 902 V. Emmot . . 947 V. Lockwood . . . 76 Aneroid . 604, 7 Angel V. Bryan . . 848 V. Draper . . . 1077 V. Smith . . 1121 Anglo-Egyptian Bank v. Renuie . 433 Anglo-Danubian, &c., Co . . . 363 Anglo-Italian Bank v. Davies 51, 59, 70, 1 Anon. (1 Silk. 117) . . 162 ( 164) . . 666 ( 155) . . 655, 1042 (2Salk.) . . 683, 8 (3Salk.) . 809, 811 (7 Mod.) . . . 162 (1 Show.) . 162 (3 M. D. & D.) . . 392 (2 Mad.) . . 394 (6 Mad.) . . . 253 (2Chitt.). . 1018 (1 Vern.) ' . 793, 1114 (2 Vern.) . . 812 (2Ventr.) . 104, 948, 1043 ' (Barnard) . 250, 3 024, 1026 (2Ch.) . . 699 (IFreem. Ch.) . 790 (2 ib.) . . . . 776 (2 Yes. S.) . 810, 811 (2 Atk.) . 924, 5, 7, 929 C3Atk.) . 930, 936, 1076 1083, 316, Anon. (2 Ch. C.) . (6 Ves.) . Ansell V. Baker Anson v. Holmes V. Lee . Anstey v. Newman Aphany v. Bodingham Appleby v. Duke Applegarth v. CoUey Arbuckle v. Cowtan . 199, Arbuthnot v. NoHon Archdeacon v. Bowes 1094, Archer v. Harrison V. Hudson . V. Snatt . Archibald v. Hartley Ardglasse v. Muschamp Argos Cargo, Exp. . Ariadne Arkwright, Exp. . Armitage v. Baldwin . Armstrong v. Armstrong V. Burnett. V. Storer Arnell v. Bean Arnold v. Bainbridge V. Garner • V. Mayor of Gravesend V. Bidge . V. Woodhams Arrowsmith, Exp. Trusts Arthur v. Barton Amndell v. Phipps Ascoagh V. Johnson . Ashburnham v. St. John Ashby V. Ashby Ashenhurst v. James Ashley, Exp. . V. Ashley V. Killick . - . Ashlin V. Laugton Ashton V. Elaekshaw 448, V. Corrigan V. Dalton V. Lord Langdale V. Milne V. Wood . Ashwell V. Staunton Ashwell'sTr., iZc Ashwin v. Burton . Ashworth v. Mounsey , V. Outram Aslatt V. Farquharsou Astbury, Exp. Astley V. Milles . . 647, V. Tankerville Aston V. Pye . Atchison v. Le Mann Athenaium Life Office v. Pooley Society, He Atkin V. Barwick . Atkins, Exp. V. Tredgold V. Uton . Atkinson, Se . . . . V. Atkinson r. Cotesworth , PAGE 1018 1121 644 63 4, 5 . 984 . . 621 732, 3, 799 . 900, 1, 2 344, 6, 360 . 101 1105,1119 1061 894 206, . 313, 6 01, 2, 810 1047 892 572, 5 567 , 765, 775 1128 268, 565 943 1031 636 724 744 62 62 209 343 10.54 565, 571 427 655 60 949, 1040 655, 875 392 609 128 161 450, 644, 470 201 868 340 920 264 868 908, 921 866 261 217 363 438, 9 9,651 972 1157 210 356, 363 356 609 306 923 30 448 872 565 Digitized by Microsoft® TABLE OP CASES. ' . PAGE PAGE Atkinson v. Denby . . .129 Ayling v. "Whicher . 430 V. Jones . . . 161, 889 Aynsley v. Reed . 1079 i>. Leonard . . . 748 ^^ V. Maling . . 428, 581 ' V. Smith . . 528, 1082, 3 Babcock v. Lawson 582 Atkinson's Trusts, Se . . . 772 Baber ■». Harris 736 Atlas 569, 670 Baber's Trusts . 1030 Attenborough, Me . . . . 665 Bachelor v. Middleton . 92 0, 1075 V. Lonclon . . 588 Bacon, Exp. . . .388 390, 2 ■ V. Thompson . 477 Backhouse v. Charlton 321 Attorbury v. Walhs . . 782, 3, 4 V. Middleton 271 Att. Gen. v. Alford . . .876 Badger, Jixp. . . . i 81, 395 V. Andrew . . 47, 171 V. Shaw . 474 — .- V. Baekhouse . 777, 787, 9 Badham r. Odell 1116 V. Barkham . . . 947 Baggett V. Meux . 209, 11 V. Bowyer . 1048, 1055 Baglehole, Exp. ... 3 88, 390 • ■ V. Bmnning . . 39 Bagnal, Exp 67 1'. Capel . . . . 174 • V. Carlton 74 ■ • r. Carrington (Lord) . 144 V. Villar . 397 V. Cox . 244, 845, 9, 987 Bagnalstown R. Co., lie 358,9 V. Crofts . . 42, 3, 1078 Bagot V. Bagot 970 V. Day . . . . 338 V. Lego;e . . 975 V. Flint . . .823 V. Oughton . . .9 68, 973 V. Gilpin . . . 1062 Bagshawe v. Goward . 687 V. Haberdashers' Co. . 876 Baile v. Baile . . .6 37, 8, 9 V. Halford . . . 876 Bailey, Exp. . . 125, 5 34, 541 -. V. Hall . . . . 787 Be . . . . 1 89, 627 V. Hanbury. . . 174 V. Abraham 293 V. Hardy . . . 304 V. Birchall . . 637, 9 V. Hollingworth . . 692 V. Culverwell . 483 V. Jackson . . . 278 - — - V. Edwards. 1133 V. Leeds (Duke of) 32, 230 V. Ekins . 40, 187 V. Meyriok . 339, 1045, 6 V. Fermor . . .7 79, 855 V. Netheroote . . . 144 V. Richardson 649, ( )51, 777 ■!!. Newcastle (Corp.) . 417 V. Wilkins 1044 V. Pargeter . . . 777 Bailliet-. M'Kewan. . 823, 8 44, 856 V. Poulden . . .296 Bain u Sadler . 39, 40 V. Sands .... 43 Bainbridge, Re . . .4 46, 468 - — I'. Scott ... 35 V. Ashburtou 1050, 3 V. Sittingboume, &c.. Bainbrigge v. Blair 1123 Bail. Co. . 411, 1159 Baine, Eo.p 191 V. Southgate . . . 956 Baines v. Dixon . 294 -v. Trueman . . 176, 587 V. Swainson 552 V. Tyndall . . . 977 Bainton v. Ward 190 V. Vigor . . . 1048 Baker v. Baker 296,7 V. "Walmsley . . . 176 ■!'. Bent . 892,3 V. Whorwood . . 413, 6 1'. Bradley • 894 V. Wilkins . . . 863 V. Clark . 79 V. 'Wilkinson . . 62 ■ V. Flower 164 Attree v. Hawe . . . . 340 V. Gray . 833,5 Attwater, .Eay. . . . 462, 474 • 1). Harris 808,9 Attwood, Mp 389 V. Henderson . 625 V. ... 311 V. Kellett . . .65 5, 1042 — — V. Partridge . . . 511 V. Tynte . 82, 5 V. Taylor 868, 870, 1, 8, 884,9 v. Wind. . . .2 22, 800 Aubrey v. Middleton . ... 952 V. Wetton . . 934, 5, 1075 Audsley v. Horn . . .800 Baker's Case .... 358 Augusta. . .... 567 Balbirnie, -Be . . .125 380, 2 Austen v. Dodswell's Exors. 10, 886, 1040 Balch V. Symes . . 620 5, 640 V. Halsey . . . 411 Baldock, Exp. . 392 Austin V. Croome . . . . 850, 2 Baldwin, He . . . .4 48, 457 Australia, Royal Bank of, Ee . 82 V. Baldwin . 880 Australasian, Co. v. Morse . 571, 5, 7 V. Belcher . 67, 1 23, 983 Australian Steam Cliiiper Co. . 354 V. Lewis 1104 Averall v. Wade .... 983 Balfe V. Lord . . . 325, 1034, 5 Avison V. Holmes . . .63, 166 Balfour «. Watt . 75, 106 Awdly V. Awdly . . . 1037 Balgueyii. Hamilton Bally. Ball . 417 Ayei-st V. Jenkins . . . • 532 951 Aylesford v. Morris . . 890, 2, 4 V. Bamford 530 Digitized by Microsoft® TABLE OF CASES. Ballu. Harris V. Lord Rivorsdalo . Ballard v. Marsden Ballet v. Sprainger . Balls V. Margrave Bamfield v. Windham Bampfield i\ Vaughan . Bamtbrd v. Baron . Bampton v. Birchall . Bamundoss v. Omeish . Banbury's (Lord of) Case White. PAGE 286, 290, 952 . . 109 ~ 28 . . 1094 730, 750 . • 946 . , 1006 : . 426 . 929, 934 . . 1134 . 789 472, 8 Banco de Lima v. Anglo-Peruvian Bank, 487, 8, 777, 784 872, 927 . 147 122 489, 490 1133, 8 . 147 Bandon, Earl of, v. Beeoher Bank of England v. Johnson Hindustan j Ireland v. Perry . Scotland v. Christie — — V. Eenwick S. Australia v. Abrahams 360 "Whitehaven v. Dawson . 825 Bankhead's Trust, Re . . 313, 447 Banks, He ... . 686, 690 'V. Sutton ... 35 V. Whittall 306, 646, 803, 846, 1096 Banner, Exp. . . 487, 8, 490 V. Johnston . 399, 490, 987 Banque de Credit, &c. v, De Gas . 153 Barbara ...... 668 Barber, Exp 1047 Barclay, Exp. . 394, 439, 441, 2, 467 BarfF, Exp. . . . 419, 619 Barjeau v. Walmsley Barham v. Earl Clarendon V. Earl Thanet . Baring v. Currie . Barker, He . . V. Aston . V. Blittress V. Duke of Devonshire V. May V. Parker II. St. Quentin V. Smark Barkley v. Lord Keay . Barkworth v. Young . Barling 1). Bishopp. Barlovif v. Gains . Barnard u Pilsworth Bamardiston v. Lingood 658, 900 964 965, 9 599 624 ^73 148 289 40 1138 . ISl, 630 404, 412, 662 • . . 1119 . 523 . . 522 796, 803, 1120 . . 1062 . 892 Barned's Banking Co., wood's Claim . Barnes, Exp. . V. Fox . — ; — ' V. Harding. . v. Pendrey V. Pinckney Me For- . 492, 3, 987 390, 6 . 1020 . . 57 . 162, 3 449, 765 V. Eacster 731, 832, 980, 3, 1031 V. Eobinson V. Thrupp Barnesley v. Powell Bamett, Exp. V. Brandao V. Sheffield . V. Weston 11. Wilson Bamewall v. Barnewall 8i; 204 65 . 636 . 504 594, 6, 7 418 , 853, 861 41, 1082, 3 . . 53 PAGl! Barnewell v. Cawdor . . . 958 Bamhart v. Grceushields 22, 777, 9 Barnwell v. Iremonger 940, 960, 1, 975, 6 Barr's Trusts, ICe . . . 778, 2 Ban'acku M'Cullooh 209, 516, 525, 545 Barraud, Re Barrett, Exp. . 1). Hartley V. Wells . V. Wilson Barrington's Sett. . Barrington v. Att. Gen. Barron v. Lancefield V. Martin Barrow's Case BaiTow V, Bell -, — V. Griffith — — V. Gray V. Manning . Barry, Exp. . V, Disney . r. Harding . V. Longmoro V. Wray Barrymore v. Ellis Bartholomew v. May Barthrop v. West ■ Bartle'i). Wilkin . Bartlett v. Bartlett . V. Dimond V. Franklin . u. Pentlaud V. Eees . Barton v. Barton . V. Gainer. 1). Hassard . 473 . . 1134 . 745- . . 1162 . 1082 . . 420 . 291 . 799, 1032 929, 934 . 874 . . 448 . . 284 . . 150 . 831 . . 446 . 200 . . 943 . 600 . . 803 209 . 959, 978 . 1078 798, 1005 501, 771 . . 1124 . 1088 . . 146 1003, 1088 . . 948 309, 495 . . 1044 V. Van Heythuysen 522, 5, 6, 8, 532,. 1035 V. Williams ' . . . 581 Bartram v. Fai'ebrother . . . 609 Harwell v. Barwell . . . . 1044 V. Parker . . . . 873 Barwick v. E. Jt. Stk. Bk. . . 356 V. Eeade Bashford v. Cann Baskett v. Cafe V. Skeel . Basset v. Perceval Bassford v. Blakesley . Basspool V. Long . Bastard v. Clarke Batchellor v. Lawrence Batchelor, Be V. Middleton Bate, E«p. . , Bateman v. Batemau V. Hotchkin Bates V. Beaufort ■!). Bounor V. Brothers V. D.indy V. Hillcoat V. Johnson . ■ II. Lockwood Bateson ■!). Gosling. Bath (Earl of) v. Earl of Bradford, 186, 7, 288, 873 Bathe •ii. Bank of England . . 217 . . 199 . 505 . . 520 323, 394, 592, 749 967, 9, 970 . li'30 . . 231 698 . . 1129 208 733, 746, 797, 933, 5, 1075 . . 395 . 288, 959 . 961, 2 . 439 . . 393 62, 347, 859, 861 204, 1040 66, 1088 763, 815, 8 97 622, 1185 Digitized by Microsoft® TABLE OF CASES. Battersbee v. Fanington Bathurst v. Errington Batson, Exp . Battine, ifcp. Batty V. Chester . V. Marriott Bawtree v. Watson . ]5axter v. Manning V. Portsmouth V. Pritchard Bayley's Estate, lie Sett. . Bayly, }!xp. . V. Kobson V, Wilkin s Baynard v. Simmons V. Woolley Bayspoole v. Collins Beadel v. Pitt Beale v. Symonds . Bealos v. Tennant Beare v. Prior Beaufort (Duke of) i Beaumont v. Foster V. Reeve PAors . 519 . 276 . 427 . 200 . 897 . 902 629, 891 . 809 . 1020 . 537 . 628 . 277 . 907 . 811 649 . 156 . 305 . 629 . 890 42, 3, 190, 1078 . 477 267, 1114 Phillips . 74 1098 897 Beaumont's Mortgage Tiiists, lie 1001 Beavan D. Oxford 64,5,83,100,532 V. Countess of Oxford . 99 Beck V. Welsh . . . 328, 332, 3 Becke v. Smith . . . . 535 Beckcrvaise v. Lewis . . . 1135 Beckett v. Buckley . . . 72 0. Cordlcy 306, 794, 823, 844, 854 V. Micklethwaite . . 1093 Beckford v. Kemble . 725, 6, 992 V. Wade . . . 925, 8 Beckley v. Newland . . . 436 Bedford v. Backhouse 112, 3, 814, 820 V. Forbes . 106, 1013 Beeching v. Westbrook . . . 665 Beere v. Head . . 106, 7 Beeston, E.q). . . 833 Beevor v. Luck . . 831, 833, 8 Begbie v. Fenwick . . . 467 Uelch V. Harvey . . 925 Belcher, Exp.. . . 236 V. Bellamy . . 446, 481 )'. Campbell . . 495 V. Capper 446, 486, 573, 602 V. Jones . 536 V. Oldfield . 428, 486 V. Patten . 137 ■ V. Prittie . . . 535, 6 V. Sykes . 663 V. Sambourne . . . 129 V. Vardon . 891 Belchier v. Butler . . . 817, 8 r. Eenforth . 818 Belding v. Read . 431, 2, 4 Beldon v. Campbell . . 568, 9, 571 Belfast Harbour Co., Ej'p. . . 106 Bell, Exp. . . 447, 481 V. Ahearne . . 505 V. Banks . 642, 3, 4, 1130, 2 V. Blyth . . 561, 2 V. Carter . 22, 64, 1087 V. Loudon & N". W. Rail. Co. 482 V. Loudon, Bank of . . 561, 4 Bell V. Simpson . V. Taylor Bellaixs v. Bellairs Bellamy v. Brickendcu PAGE . 540, 1 . . 626 . 966 806, 6, 876, 1111 . . 1000 . 479 . . 792 . 1051 V. Cockle . V. Saull V. Sabine . BeUis' Trust Belvedere, Earl of, v. Roohfort . 965, 8 Benbow r. Davies . . 733, 1022 V. Townshend . .1039 Bench v. Biles . . . . 952 Benham v. Keane 54, 64, 99, 100, 1, 106, 107, 8, 110, 1, 5, 820 Bennett, Exp 381, 5 V. Appleby . . . 34, 68 ■ ■ V. Apperley . 345, 346, 348 V. Bernard . . . 917 V. Burton . . . . 737 V. CoUoy . . .927 V. Cooper . 436, 915, 919, 928 V. Edwards . . .996 D. Lee . . . . 996 ■ V. Powell . . . 76, 9 V. Wyndham . . 273, 293 Bensley v. Burdon . . . 716 Benson v. Chapman . . . 566 V. Duncan . . 669, 670, 6 V. Scott .... 231, 5 Bentham v. Haincourt 742, 1103, 1113 V. Wiltshbe , . .289 Bentinck v. Willink . 72(i, 730, 749 Bentley, Exp 440, 1 ■ V. Bates . . 728, 1110 r. Oldfield . . . 956 V. Robinson . . . 955 Benyon v. Cook . ... 890, 4 V. Fitch .... 893 Beresford v. Browning . . . 736 Berkeley, Exp 392 V. King's College . . 199 Bermingham v. Burke . . 917 Bernard v. Drought . . . 244 - — - V. Norton . . . 1023 Berndtson v. Strang . . . 608 Beruey v. Sewell . . 1118, 9 Berridge, Ex2> 835 Berrie v. Howitt .... 637 ]5errington v. Evans . . 415, 917 Bei-risford v. Milward . . . 848 Berry v. Askham . . . . 271 V. Gibbons. . . . 792 - — V. Hebblethwaite . . . 1031 Bertie v. Lord Abingdon 694, 882, 1123 Bertrand v. Davies . . . 423, 744 Berwick-upon-Tweed v. Murray . 783 Bessey 1). Windham . . . 517 Best V. Pembroke . . . . 154 Bethell v. Green . . . .961 Bethlem Hospital, He . . . 1161 Betton's Trust Estates, Jic . . 1083 Betty V. Betty .... 51 Beulah Park Estate, ite . .368 Bevan, Exp. - . . 384, 870, 1109 ■ V. Lewis . . . . 139 ■ V. Nunn .... 636 Beyfus v. BuUock . . 522, 793 Bcynon v. Cook . . . 890, 892 Digitized by Microsoft® TABLE OF CASES. Biokford v. Clmllcer Bickham v. Cross Bickley v. Dorrington Biddle, Se . Biddlecomte v. Bond Biddulph, Exp. . V. Goold V. St. John Bioderman v. Seymour Biggs V. Andrews Bignold, £xi7. 23, Bilborough v. Holmes Bill V. Cnreton . Billinghurst v. Walker Bills V. Smith . Bingham v, Corbitt — - i>. Gregg . V. King . Binnington v. H anvood V. Wallis Einus V. Pigott . — • V. Towsey . Birch's Case Birch's Legacy Birch V. Ellames . V. Sherratt . • . V. Wright . Birchall v. Pugin . Bircham v. Tucker •Bird V. Bass . V. Brown . V. Heath ■ V. Pegram . Birds V. Askey Birley v. Gladstone . Birmingham, &c.. Coke Co., Exp. Birt, Be Bisco V. Earl Banbury . . . Biscoe V. Kennedy Bisdee, Exp. Bishop, Exp. V. Church V. Hatch . : V. Wave Bishop's Waltham liy. Co., lie Bittlestone v. Cooke . Blackford v. WooUey Blackbourn v. Brown . Blackburn, Exp. 1). Caine V. Gregson V. Warwick Blackbiu-ne v. Godrick Blackford v. D.ivis Blaoklock v. Barnes Blackmore v. Yates . Blackwell v. England V. Syines Blackwood v. Loudon, &c. , Bank. Blades v. Blades . . . . Blagx'ave v. Eouth Blair v. Nugent V. Ormond Blake v. Izard V. Marnell Blakesley, Be Blakely Ordnance Co. TAfiE 1120 874 1072 760 167 384 . 472, 521 10, 109, 110, 1, 974 . 258 390, 1, 5, 6, 695 . . 1162 528, 632 . 969, 970 . 535 . . 1133 . 701 1032, 1090 803, 1105, 8 897 598 535 1028 455 849 297 681, 705, 9, 712 637, 8, 9 . 166, 8 . 398 . 610 632 . 210 417, 945, 978, 980 . 602, 3 386 451 . . 787 . 215 236, 315, 8 . 545 . 885 143, 350 . 603 72 . 539 . 210 . 635 . 543 . 1088 401 1109 167 . 800 1109, 1114 201, 360 . . 477 . 815 861 109 751, 897, 1117 920, 9, 934 665, 1030 . . 465 . 288 . . 201 363, 5, 400 869, 870, Blanchavd v. Cawthorne, 40, 194, 1120 . 291 . . 617 956, 974 . . 415 702, 860, 1102 . 1130 . . 924 97 . . 162, 3 . 984 . . 220 361 478 5, 7 914 385 257 651 847 592 644 593 11 988, 9 1133, 8 757 944, . 826, Bkncnett «. Powell's, &c., Co. Bland, Exp. Blandy v. Allan V. Herbert Blanshard, Se . Blatchi). Wilder. Blauwpot V. Da Costa Blann v. Bell . Blenkinsopp v. Foster Blennerhassett v. Day Blest u Brown .... Blewitt V. Thomas . . . . V. Tregonning Bligh '0. Brewer . . . . V. Darnloy Bloomar. Re Bloomer v. Union Coal & Iron Co. Blount V. Han-is V. Hipkins Blower r. Blower . Bloxham, Exp. . Bloye's Trusts, lie . Blimdell v. Stanley Blunden v. Desai-t . BIyth V. Carpenter Boaler v. Mayor Boardnian v. Sill Boate, Re Boazman v. Johnston Bodenham v. Purchas Boden's Mtg Bodger v. Bodger . . . . Bolckow V. Heme Bay Pier Co Bold Buccleugh Bolden v. Nicholay Bolding V. Lane Bolland, Exp. . V. Bygrave Bolton V. Feri-o . 1). Lancashire Eail. Co. V. Stannard Bonafous v. Rybot . Bonaparte . Bond 1). Hopkins . V. Kent . " Bonham, He . V. Newcomb . Bonithon v. Hockmoru Bonney i). Ridgard Bonser v. Bradshaw . — — D. Cox Bonzi V. Stewart Booth's Sett., lie . Booth, Exp. V. Booth V. Creswicke . ■ V. Leycester V. Parker . ■ V. Rich V. Turle . Bootle V. Blundell PARE . 615 . 638 . 549 663, 679 . 451 604, Borrodaile, Exp. V. Brickwood V. Hunter BorrieSD. Imperial, &c., Bank Bosanquet v. Da.sliwood o. Hansford . 323 362 865 . 211 909, 921 . 542, 5 . 596 . 386 . 613 . 290 . . 883 . 567, 570, 1 . . 872 . 404, 5, 412 . . 178 . 1018 . . 728 282, 3, 936 . 638 . . 113> 548, 551 . . 766 . 394 . . 1029 800, 1, 1016, 9 . 143, 871 . 167 . 994, 5, 7 18 294, 943, 4, 5, 7, 953 317 1153 506,7 555 901 146 Digitized by Microsoft® TABLE OF CASES. PAGE PAGE Bo3tock V. Blakeney . . 419 Brancker v. Molyncux . . 486, 675 V. Shaw . 1007 Brand, Be . . 221 Bosvil V. Brandor . . . 1040 Brandao v. Bamett . . 553, 596, 7 Boswell V. Tucker . 799, 1009 Brandling v. Ord . 763 Botlioraley v. Fairfax . . 336 V. Plummer . 96, 105, 1030 Botthamley v. Sherson . 942 Brandon v. Brandon . 7 96, 1101, 1114, Bott V. Smith . . 520,6 1130 Bouch V. Sevenoaks II. C 0. . . 155 Brantom v. Gri flits . . 465,8 Boughtou V. Boughtou . . 956 Brassey v. Dawson . 174 Boultbee v. Stubbs . . 621, 1133 Brassington v. Brassington . . 632 Bonlton, Ej'p. . 456, 775 Bray v. Hine . 634 liourne's Case . 423 V. Manson . . 164 Bourne v. Bourne . . . 258 Braybroke v. Inskip . 1049, 1050, 2 V. Dodson . 452 Braybrooke v. Meredith . 481, 679 V. Hartley . . . 11 Brazier v. Hudson . 302, 512, 1038 Boiirsott V. Savage . . . 784 Brearcliff v. Dorrington 83 Bonrtou v. Williams ' . . 700 Brecon (Mayor of) v. Seymour . 807 Boiisfield v. Hodjjus . . 251 Breech-loading Armoury Co., Be Bovey v. Skipwitli . . . 983 766, 775 Bovill, £xp. . 896 Breerton v. Jones . 814, 819, 859 Bowden, £xp. . . 384 Bremner, Exp. . . 628 Bowen v. Ashley . 677 Brend v. Brend . . 1081 V. Barlow . . 1048 Breiit 11. Best . 1040 V. Brecon E.. Co. 357, 362, 4 IJrentwood Brick, &c., Co., Re . 411 V. Edwards 20 Breslauer v. Brown . 383 V. Evans . . 927 Brett, Ej:p . . . 380,3 Bowes, Jixp. . 1049 Brettell, K^ip. . 1049 V. Foster . . 517 Brettle, lie . . . . 209, 283 V. Heaps . . 893 V. Burdett . 1162 Bowkeri). Bull 825, 838, 1129 Brewin v. Austin . 874, 1024, 1112 Bowles V. Berring . . . 393 r. Short . . 472 Bowman v. Malcolm . . 600, 612 Brewster's Assignees . . 450 ]3owra v. Wright . . . 998 Brice v. Bannister . 482, 499 Bowyer v. Woodman . . 203, 907, 8 Bridge v. Beadon . . . 766 Box's Trusts . . . 943 V. Branch 79 Boycott V. Cotton . 288 Bridgeu v. Lander . . . 955 Boyd V. Barker. . . 350 Bridges v. Bridges . 620 V. Buckle . . 298 V. Hinxman . . 192 V. Craster . . 849 V. Longman . 148, 293 V. Mangles. . 481 Bridgmani). Dove . 289, 944 V. Petrie . . 254 Bridgewater 1). De Winton . 731, 1137 Brierly v. Kendall 429, 449, 585, 6, V. Shorrock 439, 467 Boyd's Settled Estates . . . 300- 685 Boydell v. Manby . 1000, 1089 V. Prevost . 464 V. M'Michael . . 453 V. Ward . . . 1021 Boyle, Hxp. . . 6 3, 100, 124, 809 Briggs V. Boss . 478 u Ferrall . . 145 V. Chamberlain . . . 203 Boys V. Ford . . . 698 V. Jones . . 855,6 Boyse v. Simpson . 156 V. Merchant Tailors, &c., Bozon V. Bolland . I 14, 626, 8, 779 Assoc. . 602 V. Williams . 311, 4, 779 V. Peel . . 673 Brace v. Duchess of Mar borough V. Sharp . . 291 54, 371, 2, 3, 814, 7, 9, 1032 Bright, Eocp. . . 456 Bradfoid v. Belfield . . 248, 254 V. Cowper . 574 1). Nettleship . . . 1024 V. Larcher 298, 909, 952 Bradley v. Copley 429, 431, 685 Bright's Trusts, Re . . 794 V. Heath . 1134 Sett. . . . 772 V. Riches . 782, 3, 844 Brighteu's, Exp. . 394 Bradley's case . . 483 Brighty v. Norton . . 252, 431 Bradshaw v. Bradshaw . . . 129 Brind v. Hampshire . . 484 V. Outram . . 1006 Briscoe v. Kenrick . . 1011, 2 Bradnox v. Gratwich . . 947 V. King . .. . 1164 Bradwoll v. Catchpole . 654, 9, 763 Bristed v. Wilkins . . . 80, 2 Brain v. Brain . . 1086 Bristoe V. Knipe . . 1164 V. Harden . . 613 Bristol V. Hungerford 818, 823, 844 Braithwaite v. Braithwait e 656, 1043 Bristow (Bishop of) Case 49 V. Britain . . 286, 955 V. Coxhead . 173 ^ V. Watts . 96 V. Warner . 896 Bramwell v. Eglinton . 431, 684, 691 V. Whitmore . 566, 618 Digitized by Microsoft® TABLE OF. CASES. British Mutual Inve.stmont Co. - Cobbold 641 Smart . . 191, 2, 418, 916 Britten v. "Wait . . .344 Brittlebank v. Goodwin ... 916 Broad u Selfe . . . 744, 6, 802 Broadbenti Exp. . . . 318, 389 App., Varley, resp, V. Barlow . V. Thornton Bvoadmead v. Wood . Broadway v. Morecraft Broadwood, Bocp. V. Granara Brocldehurst v. Jessop 321, 656, Brodriok v. Scale Broraage, -Say. Brome v. Berkeley Bromhall v. AVllbraham Bromitt v. Moor . Bromley, Be . V. Goodere . V. Holland V. Smith Brook, Exp. . V. Brook . V. Enderby V. Smith V. Stone Brooke, lie . 1). Hickes . - — • V. Stone . V. Warwick Brookfield v. Bradley . Brooks 1). Brooks . V. Greathed Brooksbank v. Higginbottom Broomfield v. Southern Ins, Broomhead, In re Brothers v. Bence . Brothei'ton v. Hatt Brouard v. Dumaresque . Brough u Oddy . . Brougham v. Squire Broughton v. Broughton V. Davies Brown, Exp. . V. Bamfoi'd V. Barkham V. Bateman . V. Carter . V. Cole . V. Freeman V. Groombridge 1). Heathcote . V. Jones V. Kempton . V. Lake V. Litton V. Lynch 509 776, 780 . 1030 . 277 . 441 . 598 919, 922 1030 478 391 266 949 1034 775 872 1042, 1043 505, 893 126, 245 209 1133 188 305 1161 205 805 979 998 209 1121 1032 570 635 826 783 251 318 9, 612 634 180, 1 392, 442, 467, 471 84, 209 . 869, 884 434, 464, 5, 6 . . 530 27, 932, 1087 . 504,8 . 980, 979 428, 486 . . 531 427, 486, 535 . . 760 . 299 917 Co. V. Metropolitan Life As- surance Soc. . 687, 691 V. Perrott . 62, 63, 140, 623 V. Powell Duffryn, &c., Co. 615 V. Price . 506, 611, 806 V. Eose .... 344 V. Savage .... 772, 3 PAGE Brown v. Sewcll . . . 749 V. Stead . ■ . . 645 V. Storey . . 710, 712 V. Tanner . . . 674, 788 V. Thorpe ... 848 V. Trotman . . . 639 ■». Weatherby . . .192 Brown & Sibley's contracts . 1051 Browne v. Burton . . . 165, 7 v. Cavendish . . . 51, 3 V. Groombridge . . 948 V. Lockhart . 730, 797, 1005 u. LoiidonE'ecropoUs, &c., Co 724 V. Savage . . . 772, 773 Brown's Trusts . . . 772, 3 Brownson v. Lawrance . . 939, 940 Bruce, Exp 312 V. Garden . . . 505 V. Mories . . . . 964 V. Wait 486 Bruere v. Wharton . . . . 874 BrummeU v. Prothero . . 944, 6 Brunsdon v. Allard . . . . 631 Brunskill v. Caird . . .420 Brunton's Claim . . . 356, 363 Bnmton v. Neale . . 54, 776, 7 Brutton v. Burton . . . . 161 Bryan v. Cormick . . 1119, 1121 Bryans u Nix . . 435, 486, 601 Bryant, Exp 626 V. Blaokwell . . . 1032 V. Bull .... 86 Brydges v. Brydges . . . 626 ■ V. Phillips . . .948 Bryonu Metropolitan Saloon Co. 356 Bryson v. Wylie . . . . 454 Bubb V. Yelverton . . . 903 Buchanan v. Greenway . . . 1112 Buck V. Lee .... 495 V. Eobson . . 482, 499, 679 11. Shippam . . . 621 Buckinghanishu'e(E. of )d. Hobart 647 Buckland, Re i>. Pocknell . Buckle V. Mitchell Bucknel ■». Royston Bucks (Duke of ) v. Gayer Budge 11. Gummou Bugden v. Bignold Bulfin V. Dunne Bulkeley v. Hope • . Bull -!). Faulkuer . V. Hutcheus BuUen Me . . . V. A' Beckett . Buller 1). Pluniett . Bulley u Bulley . Bullin V. Fletcher . Bullmore v. Williams Bullpin V. Clarke . Bulmer's Estate . Bulmer v. Hunter . Bulstrode v. Bradley . Bulwer v. Astley . V. Bulwer Bunburyi;. Wintei: Bunneyi). Poyntz Bunting, Ee , 790, 57, 865 . 404, 8 528, 645 ■428, 458 . 1113 . 299 832, 983 312 649, 662 636, 1101 792 . 878 . 193 482, 774 . 637 . 1086 . 897 . 211 . 1136 . 522 . 1101 25, 6, 881, 942 . 706 . . 743 608,. 613 . . 632 Digitized by Microsoft® TABLE OF CASES. Bunting r. Marriott Burbidge v. Cotton Bnrbridgo, £fp. . Jiurden r. Oldaker. and Wittington'i Burdett v. Rawson . Burden v. Kennedy Burdus V. Dixon Burge V. Brutton Burgess v. Eave V. Mawbey ■ V. Moxon. . ^ V, Whoate Burgh V. Francis . V. Langton Burgaino v. Spurling Burgoyne v, Hatton Burke v. Jones V. Lynch . V. Eogorson . Burlace v. Cooke Buries v. Popplewell Burley v. Armstrong Burmester v. Cropton V. Moxon Me. Burn V. Bum V. Carvalho . Burnell v. Martin Burnett u Kinuaston Bumham v. Bennett . Burns v. Irving Bun'el's case Burrell, Sxp. . - — JRe . . 39, 40, V. Egremont . Burridgo v. Row . Burroughes v. Gore BuiToughs V. Elton Burrowes v. Gradin - — - V. Molloy Burt, Exp. V. Sturt V. Tmeman Burting v. Stonard Bui-ton, Hicp. . V. Barclay V. Gray V. Knowlton V. Roberts V. Slattery Burtt, He Bury V. Bury Busht). Shipman Bushell V. Boord V. Bushell Bushnan v. Morgan Busk V. Fearon Busted V. "Wilkins . Butcher, Sxp. V. Harrison V. Stapely v.. Stead . Bute (Marquis) v. Cunyng! Butler V. Bernard V. Bulkeney V. Butler V. Carter 340 1060 775 796,8 49 303 51, 131 1053 634 826 882 311, 322 42,174,402 . 65, 334 1026, 7 12, 232, 5 787,9 194 930 1132 863 37, 119 942 146 1000 775 305 481, 4, 765 . 723, 1028 . . 1040 . ■ 206 . . 75 528, 533 . . 395,6 497, 743, 1027 647, 652, 914, 9, 949 413, 6, 8, 618 914, 926 63 709 796 391 974 . 287 . 280 538, 540 . 241 . 31-2 . 945,8 . 155 . 883,4 . 254 . 783 130 . 161 109, 111, 2, 3, 4 748, 879 577 82 543 515. 626 ,772 543 967 1073 ■166 965, 9 914 23, liame Butler V. Cumpston V. Duncomb V. Waterhouse Butler's Trust, AV Butterfield v. Heath Button i;. O'Neill Buxton, Ej'ji. Buxton ■!'. Moukhouse V. Snee Byam v. Sutton . Byne v. Vivian Bym V. Godfrey . PABE 212 266, 273 530 208 528, 533 477 393 725 604 651 1093 11S6 1014 . 705 423, 450, 8, 520 . 419, 421 144, 612, 663 . . 1121 606 . 889 . 826 . 213 70, 1, 2 . 1014 . 956 . 702 . 668 . 369 . 674 . . 676 49, 357, 363, 400 929 10i7,*1025, 8 . . 1019 1000, 10-25 . . 1128 Caddick v. Cook . Cadle V. Moody Cadogan v. Kennett Caldecott v. Brown Caldwell v. Dawson 1'. Ellison . Caledonia .... Caledonian Rail v. Carniichaol Calisher'U. Forbes Callow V. Howie Calue Rail. Co., He . Calverley v. Phelp . Calvert v. Armitage . V. Routh Calypso . . .' . Cambrian Rail. Co.'s Scheme . Camden v. Anderson . Cammell v. Sewall . Campbell's Case . Campbell v. Beckford V. Holy land V. Hooper V. Moxhay V. Rothwell Campion v. Colvin . . . 602 V, Cotton. . . . 622 Candy v. Maugham . . . 175 Cane v. Allen 896 Canham v. Rust . • . . 718 Cann v. Taylor . . . . 919 Cannau v. Deuew . . . 398 Canning v. Hicks . . . 1036, 8 (Visoount) V. Raper . 664 Cannock v. Jauncey . . 848, 860 Cannon v. Pack . . . 807, 821 Cant, Exp 798 , lie 760 Cantley, Ec . . . 1047, 1050 Capelr. Butler .... 1131 Capper v. Dando . . . . 167 • V. Spottiswoode . . 406 r. Terrington 731, 801, 2, 1005, 1097 Capron v. Capron . Carhery (Lord) v. Preston Card V. Jeffray Carew's Estate . Carew, Be V. Arundell V. Cooper , V. Johnston Carey v. Doyne Cargill V. Bower . Cargo ex Argos ex Sultan . 920 18 767 804 306 200 743 323, 867, 868 355 572, 5 677 Digitized by Microsoft® xl TABLE OF CASES. Carlisle'!). Carlisle -7 — V. Whaley . (Mayor of) v. Blamire Cavlon V. Farlar . . ' Carlyon v. Truscott . Carmarthen, &e., Co. Carmichael v. Gee Came, JSxp. . V. Brice . Carpenter v. Carpenter . V. Parker . CaiT, Sxp. V. Acranian V. Allatt V. Burdiss . V. Lady Burlington ■ V. Henderson V. Hineliffe Carr's Trusts, Me . Cai'rick, iSrp. Carroll v. Goold Carron Iron Works Co. v. Maclaren Carriitliers, Hxp. . Carter, Biq). ■ — — V. Bamardiston — — V. Beard . ■ ■ v. Carter • • V. Hughes • V. Palmer ' . V. Sanders — — ■ V. "Wake Carviok v. Blagrave Carvill u Carvill . Casherd v. Att.-Gen. Casborne v. Scarfe PAGE 1122 112 241 66, 322, 1089 . 287 . . 400 . 298 . . 1136 210 . . 413 708, 9, 710 . 382, 396 . 432, 4 433, 4, 464 429, 521 . 873 . 731, 1031 . . 654 . . 205 . 493 646, 703 725 488 461, 832, 1006 . . 980 193, 220 782, 859, 861, 2, 6 . 67, 70 1019, 1043 191, 284 . 321, 684 . 719 . . 290 174, 1003, 8 31, 35, 41, 1049, 1055 . • . 861 Case V. James . . . ' . Casenovei). British EquitaHe, &o., Co. . Cash V. Belcher . Cason V. Pound Castle V. Downton Cathcart Cathrow v. Ede . Catley v. Sampson . Catlow V. Catlow Cattell V. Simons . Cattlinu Kernot Cato 11. Irving Cator v. Charlton V. Cooley V. Pembroke V. Reeves Caulfield v. Magnire . Caiiston V. Macldew Cavander v. Bulteel . Cave V. Cork . V. Foulks . Cawthorne, So V. Holbeu. Cazenove v. Prevost Cazneau's Legacy Cecil's Case . Chadwick v. Doleman V. Holt . V. Turner . Chalk V. Eaine V. Walton. Challie v. Gwynne . 507 732, 799, 1010 . . 826 . 478 . . 661, 5 . 109 1008, 1079 , 638 . . 629 142, 723 . 674, 845 . 832, 5 . . 112, 3 . 403 1000, 1137 . 880 . . 131 777, 782 1005, 6, 7 . 1090 . 772, 824 664 608 465 170 277 74 •, 110 1019 144 702 PAGE Challis 01. Casborn . . . 810 Chalmers, Hxp 610 Chamberlain v. Thacker . 1016, 1075 Chamberlayne's Case . . . 587 Chambers v. Davidson . . 620 V. Goldwin 654, 728, 744, 869, 1107, 1116, 7 Chambers v. Manchester & Milford Kail. Co. 356, 8, 1154 ■ V. Waters . . 267, 734 Champion, Mcp 870 Champneys v. Buohan . . . 351 V. Burland . . 820 Chandler v. Howell . . . 340 Chandos (Duke of) v. Comm. Inl. rev. . 662, 678 V. Talbot . . 648, 9 Channell D. Ditchbum . . . 923 Chaples v. Bmnswick, &c., Soc. . 356 Chaplin v. Chaplin V. Young . Chapman v. Allen V. .Beecham V. Chapman V. Emery V. Esgar . V. Knight V. Lane . V. Tanner . Chappell V. Pees . Charlsworth v. EDis Charlton, SfLp. V. Low V. Wright Charter v. Trevelyan Chartered Bank of India v. Hen 489, 882 1101, 1112, 1124 . 594 . . 690 311, 320, 641 237, 528, 530, 1 191 465 899 1112,. 3 401, 693 612, 3 1134 4, 620 1123 293 189 543 580, 6 479 751, 897, 920 derson . Chase 1;. Box . 11. Westmore . Chater v. Maclean . Chawner's Will . Cheese u Cheese . Cheeseborough, JBxp. Cheeseman v. Exall Cheney v. Courtois Cheslyn v. Dalby . Chesshyre v. Biss . . . 645 Chester v. Powell . . . . 942 V. Willes. . . .649 Chesterfield (Earl) v. Cromwell . 869 V. Janusen . . 892 Chesworth v. Hunt . . . 837 Cheval v. Nichols . . .109 Chichester v. Marquis of Dohegall 730 ChideU v. Galsworthy . . . 43'3 Chidley, Sxp. .... 385 ife 623 Chieftain 605 Chilton u Carriugton . . . 813 Chineiy v. Viall .... 586 Chinnery v. Blackburne . 241, 574 166, 8 125 822 193 897 V. Evans Chinnock v. Sainsbury Chipp V. Harris Chippendale, Exp. Chissum v. Dewes . Choat V. Yeats 908, 9, 919, 921 . 201 . . 161, 4 . 317 . 244, 318, 994, 1031 947 950 979 Choluileyv. Oxford (Ld.) 1025, 'l099 Digitized by Microsoft® TABLE OP CASES. 3dl PAGE Cholmondeley v. Clinton 691, 705, 926, 7, 933, 1006, 1007, 1011, 1096 V. Meyrick . . 274 Chorley, Exp 356 Chowne d. Baylis . . 482, 521 Christian v. Field . . 624, 5, 1078 Christie, Exp 644 V. Comm. of Inland Re- venue . . . 664 V. Lewis . ... 602 V. Ovington . . . 1070 Christophers v. Sparice . 910, 1006 Christopherson v. Burt;on . 137, 521 Christy V. Courtenay . 39, 40, 525 Chubb V. Stretch . . .215 Chuck, Exp 441 Churchill v. Bank of England . 82 V. Dibden . . .210 1). Grove . . 52, 813, 859 Churchman v. Harvey . . 266 Chuter v. Hatch . . . . 350 Citizen's Bank Louisiana v. First National Bank, New Orleans . 483, 8 City Bank v. Luckie . . . 490 City Discount Co. v. M'Lean . 1133 Clack V. Holland . . . 418, 767 Clare v. Wood . . 62, 63, 6, 797 Clare Hall v. Harding . . 421, 781 Clarendon (Earl) v. Barbara 649, 696, 968, 970 V. Ld. de Clifford 989 Clark V. Browne V. Burgh V. Clark . V. Crownshaw V. Gilbert V. Holland . V. Hoskins V. Ormonde . • V. Sewell . r. Van Heythusen V. "Wilmot . Clarke, Exp. V. Abbott . V. Abingdon (Lord) V. Clarke . V. Green. V. Panopticon V. Royle . 1). Seton V. Spence V. Willott . V. Wright Clarke's Trusts, Me . Clarkson v. Henderson Claverlng v. "Westley Clay, Exp. . . V. Harrison . v. Sharpe . V. St. John . V. "Willis . Claydon v. Finch . Clayton's Case . Clayton v. Wilton . Cleary v. M' Andrew . Cleland, Exp. Clements v. Welles Clench v. Witherley . 1048 1080, 4 961 453 607 618 376, 855 87 953 531 732, 1019 385 1048 873, 6 74, 76 208 293 404, 7, 8 872 517 532,3 530 258 908 318 760 610 248 200 40, 51 209 1133 581 604 629, 630, 847 787 19 38, 871, PAGE Clerkson v. Bowyer . . 1005, 1038 Cliff uWadsworth 9, 731, 800, 2 Clifford V. Arundell . . 296 u Clifford . . . 651 V. Lewis . . 952 Cliftw. Schwabe . . 506, 7 Clifton V. Burt . . 960 Clines' Estate . . 888 Clinie v. Wood . . 442 Clint, Mc . . . . . 523 Clinton v. Bernard 507, 995, 998 V. Hooper . . . 972 -; — V. Seymour . . 266, 7, 270 Clive V. Carew . . 209 V. Clive . 943 Close V. Close . . 1136 V. Holmes . . 548 V. Phipps 253, 1088 V. Waterhouse . . 596 V. Wilberforce . . 319 Clough V. Dixon . . 1007 V. Lambert . . 523 Clouter, Exp. 389, 394 Clowdesley v. Pelham . 289, 956 Clowes V. Hughes . 689 V. Waters . . . 873 Cluffu Cluff . . 340 Clutterbuok v. Clutterbuck . 945, 7 Clyat V. Batteson . 1094 Coal Consumers Co. . 126, 400 Coates V. Coates . . 1128 V. Perry . . 664 V. Williams . 524 Cobbett V. Wheeler . . 1141 Cobbold, Re . 451 Cochrane's Estate, Re . . . 1129 Cochrane, Exp. . . 1121 Cockayne v. Harrison . . . 634 Cockbum v. Ankett . . 995 Cookburne v. Wright ■ . . . 105 Cockell V. Bacon . . 252, 723 V. Taylor , . 800, 849 Cocker v. Bevis . 1024, 6 V. Egmont . V. Musgrove . . 1014, 5 . 139 Cocker's Case . . 1163 Cocke.rell v. Dickens . . 383, 987 Cockes V. Sherman . . 1012 Cockman v. Hellyer . . 168 Cockran v. Irlam . . . 600 Cooks u Edwards . . 164 V. Gray 742, 1U4 Cockshott V. Bennett . 129, 621 Codrington v. Lord Foley . 266, 7 V. Johnstone . 695 V. Parker . . 1119 Coggs V. Bernard . 56.3, 579, 582, 7, 8 Cognac . 577 Cohen, Exp. . 386, 476, 540 V. Hale . . 155 Colbome, Exp. . . 363 Colbron v. Travers . 890 Colby V. Gibson . . 723 Cole V. Blake . . 885 V. Coles . . . 849 V. Davies . 427, 517 - — V. Gibson . . 903 V. Kernot . . 435 V. Muddle . . 418 Digitized by Microsoft® xlii TABLE OP CASES . 582 . 927,8 790, 827 . 212 . 832, i . 868 , 630 . 140 241, 765 191, 284 275,6 . 462 . 863 455, 524, 6, 532 . 404, 8 562, 1115 979 413 303, 1030 PAGE Cole V. N. W. Bank . . 549, 552 V. Stutely . . . . 647 V. Turner .... 952 V. Wade . . . . 254 Colebrook v. Layton . . 344, 345 Colebya Coleby . . . . 938 Colegrave ■». Dios Santos . . 441 V. Manley . . . 631 Colfeman, Mcp, . . . . 394 V. Mellersh . . . 1117 u WaUer . . 129, 621 11. -Wincli . 810, 811, 812 Colemere, Re 540 Coles V. Forrest 731, 798, 800, 1015 V. Haden .... 167 V. Jones Collard v. Hare . Collett V. De Gols . V. Bickenson . V. Munden . V. Newnham . . V. Preston . CoUingridge v. Paxton Collingwood, Be . V. Kussell V. Stanhope Collins, Exp. u Archer . 17. Burton V. Collins ■ • V. Lamport -: — v. Lewis ■ V. Plummer V. Eeeoe ■ u Shirley 799, 803, 1010, 1014 , Collinson v. Lister . . . 284 -^— V. Pater . . .55, 339 Collis V. Robins . . . 944, 5 CoUyer v. FaUon . . 200, 481, 2 Colman v. Duke of St. Albans . 694 Colmeru Ede .... 627 Colombine v. Penhall . . . 522 Colvill, Mxp 765, 6 Colville V. Middleton . . . 949 Colyer v. Clay . '.' . 620, 872 V. Colyer . . . . 659 V. Finch . . . 285, 6, 291 Combe, Mp. ... 313, 7, 427 Coming, JSxp 313 Commercial Bank of Canada v. G. W. Ey. . 354 India . . 1162 London, Jte 1033 Commissioners of Charitable Dona- tions V. St. Lawrence . . 297 Commissioners of Public Works v. Harby . . . 767, 774, 848 Comptou (Lord) v. Oxendon 648, 9, 650 Comyn v. Brandlyn . . . 132 Comyns v. Comyns . . . 745 Conflans Quarry Co. r. Parker' . 749 CongreTe v. Evetts . . . 432, 4 ConneU, ^Ecp. .... 384 JHe . . . . . 82 V. Hardie . 322, 395, 797 Conning, JExp. . . . 465, 471 Conquest's Case .... 1163 Conningham v. Conningham . . 187 Conron v. Conron . . . 954 PAGE Consolidated Investment Co. r. Eiley . . 371, 764 Constable v. Howick . . 1025, 1112 Cbnstantia . 570, 603, 610 Conway v. Conway . . . 266 1). Nail. 398 v. Shrimpton . . 930 Conybeare v. New Brunswick, &c., Co.. . . . . .790 Good 1). Pollard . . 412 Cook V. Black . 392, 502, 506, 7, 765 V. Dawson 287, 9, 293, 955 V. Field . . . 436, 508 V. Fowler . 48, 868, 888 V. Gregson . 39, 120 i>. Guerra . . 707 V. Harris . . 241 V. Hart . . . 1031 V. Thomas . . 1111 V. Walker . 430, 448 Cooke V. Brown . .' 802, 1031 V. Crawford . . . 254 V. Field . . 508 -. V. Fuller . . 217 V. Gill . . 153 V. Haddon . . . 588 ■ , V. Hemming . 457 .,«. Parsons . . 294, 997', 8 ■!;., Spltau . . , . 919 V. Stationers Co. . . 230 11. Wilton . 814, 824, 861 Cooksou ■». Cookson . . 20 V. Lee . . 761, 861 Coombe, Exp. . 310, 321, 807 ■». Stewart . . 1024 Combe's Trust . . 772 Coombs V. Beaumont . . 438,451,3 Coope V. Cresswell 191, 2, 919, 1121 Cooper's Contract . . . 255 Cooper, Exp. 449, 464, 540, 1, 611, 3 V. Fynmore . . 765 V. Grant . . . 162 ■ — — v. Jenkins . 1130 V. Macdonald . . 210 V. Norton . 136, 163 V. Parker . . . 1158 V. Stephenson. . 641 V. Willpmatt . . 431 Coote V. Jecks . . 480 — ^ V. Lowndes . . . 939 V. Mammon . 786 Cope ni. Cope . 12 , 736, 942, 965, 7 V. Eowlands . . . 588 Copeland, Exp. . 490, 2 Copeman v. Gallant . . 445 Copis V. Middleton . 1127, 8, 1130 Copland, app. v. Bartlett, resp. . 693 V. Davis . . . 89 Coplestone v. Boxwell . 26, 9 Coppin 1). Coppin . . 401, 411 ' Coppin v. Fernyhough . 786 V. Gray . . 934 Coppinger v. Synnott . . 631 Coppring v. Cooke . , . 1113 Corbet v. Powis . . 811 Coruett V. Barker 925, 6, 933, 1081, 1094 V. Maidwell . 266, 272 Corder v. Morgan . . . 248 Digitized by Microsoft® TABLE OF CASES. xliii PAGE Corder v. Universal, &c. Co. , 149 Cordinelee v. England . . . 729 Corftald'w. Mallock . . .118 Cork, Sxp. . . ... '370 (Earl of) V. Russell 71, 782, 1013, 1077 V. Youghal Rail. Co., Re . 356, 8 Corlett V. Radcliffe . . .520 ' Cornel v. Sykes . . . . 925 Cornish v. Clark .... 620, 5 V. Mew . . . . 1094 Corsellis v. Patman . . . 1000 Corser, Hxp 200 ' V. Cartwright . . 285, 954 Cort V. Sagar 439 Cory V. Eyre . . . 844, 861 Oosens v. Bognor, &c., Co. . 410, 1 Cesser v. Collinge . . . . 777 V. Radford . . . 303 Costigan v. Hastier . . . 708 Gotham 1). West .... 1109 Cothay v. Sydenham . . . 776 Cottam V. Eastern Counties Rail. Co 782 Cotterell v. Homer . . . 531 V. Purchase . 21, 29, 222 V. Stratton . 252, 796, 1099 Cottingham v. Earl Shrewsbury 1079,1116 Cottle V. "Warrington 50, 62, 152, 345 Cotton, £xp. V. Cotton V. lies V. Penrose Cottrell V. Finney 659, Coupland's Claim . Courand v. Hanmer Court V. Robarts . Courtenay v. Wiight Courtney v. Ferrers . V. Taylor Courtoy v. Vincent Cousens v. Harris Coventry v. Coventry V. Gladstone 487; Coward's Purchase, Jie Cowbridge Rail. Co., In re Cowdry, Hx^. . V. Day 226, 751, 803, Cowell, Uoq>. . . V. Betteley • V. Simpson Cowne V. Douglass Cowper 1). Green V. Smith . Cowx V. Foster Cox, Mt^. V. Bamsley V. Bishop V, Cannon . V. Champneys V. Dolman . V. Toole . V. Watson . Cox's Creditors Cracknell v. Janson 427, 530, Cradock v. Piper . 194, Crafts V. WUkinson 438, 442 268, 27.'), 771, 853, 1081 1037 732 96, 869, 887 399, 987 . 1124 . 877 . 605 . 503 721, 736 . 140 . 1094 . 971 608, 612, 3 . 217 70, 1, 2 391, 803 896, 1087 441, 453 . 630 401, 620 926 621 622 523 , 543, 4 50 319 164 743,4 914 321 1023 38 , 835, 836 634, 1013 144, 790 450, PAGE Cragg V. Alexander . . . 251 V. Taylor . . . . 85 Craggs V. Grey . . . . 201 Craig V. Watson . . . . 640 Cragoe v. Jones . . . 621, 1136 Crallani). Oulton . . . . 915 Cramphorne v. . . . 518 Crane v. Drake . . . . 283 Cranstown (Lord) v. Johnston . 802 Graven, Exp. . . . 542, 543 Crawcour, Hxp 464 Crawley D. Lidgeat . . . 138 Crawly's (Lord) Case . . . 789 Crawsliayu Fades . . 412, 601 V. Homfray . . . 621 Creaton v. Creaton . . . 290 Credit Co., Jte . . . . 368 Credland v. Potter 88, 109, 112, 800 Creed v. Creed .... 961, 2 Cremetti v. Crom . . .154 Creuze v. Hunter . . . 871, 3, 4 Crew I!. Terry . ... . 125 Cripps V. Grysil . . . . 1046 V. Jee 18 Crisp V. Heath . . 1017, 1115, 6 V. Platel .... 730 Crispin, jExp 539 V. Cumano ... 76 Croft V. Graham . . . . 890 V. Luniley . . . 107, 166 V. Powell . . . . 248 Crofton V. Ormsby . . . 778 Crofts V. Middleton . . . 716 Croly V. Weld .... 296 Crompton v. Huber . . . 1044 Cropper v. Mellersh . . . 1016 Crosby v. Church . . . . 213 V. Crouch . . .536 Croskill V. Bower . . . . 870 Cross, Se . . . . .130 — — V. Kennington . . 952, 955 V. Law .... 146 . 1156 . 871,2 . 314 . 385 Co. . 509 . 736 . 518,522 . 364, 5 . 211 83 755,9 481, 679 . 582 . 725 74 . 995 . 283, 293 . 400 254, 496 . 391 . 647 . 530, 1 130, 621 442, 453 . 1158 485, 694, 765, 7 Crosse v. Bedingfield Crossfield, Sxp. Crossley, Exp. V. City of Glasgow V. Dobson V. Elworthy Crouch V. Credit Foncier Croughton's Trust Crow V. Robinson Crowe's Mortgage, He Crowfoot V. Gumey . London Dock Co. Crowle V. Russell Crowther v. Crowther Croxon v. Laver . Cruikshank v. Duffin Crumlin Viaduct Works Co, Cruse V. NoweU . Cuddon, Exp. V. Cuddon Cullin, Se . Cullingworth v. Lloyd Cullwick V. Swindell Cumber v. Wane . Gumming v. Prescott Cummins v, Cummins d 2 Digitized by Microsoft® xliv TABLE OP CASES. Cummins ■». Fletcher . Cunningham's Sett., AV Cunninghaa v. Foot Cupit V. Jackson Curling v. Austin . V. Shuttleworth — ^ V. Townsend . Currie v. Nind Curtin v. Darcy . Curtis V. Auber V. Fulbrook ■». Holoombe V. Kush . Cust V. Goring Cutbill V. Kingdom Cutfield v. Kichards Cuthbert v. Cole Cuthbertson v. Irving Cutler 1). Cremer . 11. Coxeter Cuxon V. Chadley . PAGE 831, 838 . 209 . 915, 6 . 296 . . 287 249, 253, 659 . 892 237, 528 . 1010 . 573 . 290 . 325 . 1162 . 1048 . 1060 261, 1031, 33 . ; 137 720, 741 . 929 . 948 . 484 D'Arcey v. Blake . . . . 35 D'Arcyw. Chambers . . . 112 Daore v. Patricksbn . 938, 943, 951 Dady v. Hartridge . . . 961 Daglish, Exp 466, 7 Daines v. Heath . . . 662 Baking v. Whimper . . . 532 Dalby v. India & London Life As- surance Co. .... 509 Dale V. Smithwick . . .307 Dalmer 1). Dashwood . . . 1119 Dalton V. Hayter . . . 1086 V. Lambert . . . 732 V. Whittem . . .438 • V. Wilson . . 1023, 1091 Daly 11. Kelly .... 1017 Darner v. Portarlington . . 698, 730 Dance v. Girdler .... 1138 Daniel, Re 474 V. Eussell . . 427, 473 V. Skipwith . 993, 1007 V. Trotman . . 422, 3, 5 Daniels v. Davison . . . 776, 8 Dannu City of London Brewery Co. 826 Darbon v. Eiokards . . 271, 296, 7 Darby v. Bosanquet . . . 808 V. Harris . . . . 438 V. Smith .... 450 u Wilkins . . . . 702 Darcy v. Hall . 649, 655, 6, 1042, 4 Darke v. Williamson . . . 415 Darkin v. DarMn . . . [209, 416 Darlington v. Hamilton . . 787 Darlow v. Cooper . . 724, 888 Darston v. Lord Oxford . . 37 Dartnall v. Howard . . . 640 Darvill v. Terry . . 472, 520, 6 Dashwood v. Bithazey . 993, 1020 v. Blythway . . 1027 Daubigny v. Duval . . . 547 Dauglish v. Tennent . . .130 Davenport, Mcp 384 V. James . . . 797 11. Whitmore . . . 573 Davey v, Durrant . . . 252 r. HaU . . . . 649 Davey v. Miller . V. Prendergrass Davidson v. McGregor Davie ii. Beversham Davies, Esisp, V. Aoocks . V. Ashford u BuBh V. Cooper V. Davies V. Fitton V. Huguenin v. JeiJkins V. Jones 11. Parry . r. Thomas . V. Topp . v. Vernon . 11. Wattier 1). Wesconib Davis, Exp. . V. Barrett . V. Battine V. Bowsher V. Chanter . V. Combermere V. Dendy V. Dowding V. Dysart V. Eyton . 11. Gardiner . V. Gibbs . V. Goodman . V. Heath . V. Johnston . V. Marlborough V. May V. Parry V. Snell . V. Strathmore V. Thomas . V. Tollemaohe V. Trevanion V. Whitmore Davison v. Franklin V. Robinson Davy V. Barker . Daw V. Terrell Dawes, Exp. V. Scott Dawkins v. Evans V. Lord Penrhyn . . Dawson, Exp V. Bank of Whitehaven 838, 1078, 1081 V. Dawson ... 20 V. MedhUrst . . . 669 V. Wood . . .517 Day, Ea^ 381 V. Croft .... 1123 V. Day . 27, 770, 885, 942, 1087 V. Radcliffe . . . . 274 Deacon v. Smith . . . 414 Dean v. Mellor . . . . 290 V. M'Ghie .... 572, 4 V. Whittakei: . . . 188 Dean of Ely v. Bliss . . . 352 V, Cash . . . 351 PAGE 755 1133 622 233 1033 635 944, 950 142, 620, 8 . 893 780, 8, 1093 890 276,7 212 471 897 . 403, 787 . 958 . 626, 657, 853 . 160, 298 . . 419 391, 2, 419, 613 . 649, 1044 . 141,723 . 596 . . 1007 . 874 . 728, 744 . 995 . . 851 . 706 . 953, 978 . 1048 . . 461 . 735 . . 572 (Duke of) SO, 199, 892, 5 . 1104 . 730, 897 . 1077 . 105, 859 . . 24 . 335 . . 161,4 733, 1014, 1033 . 899 . . 536 . 729 . . 311 . 126 . . 944, 5 702 928 545 Digitized by Microsoft® TABLE OF CASES. xlv PAGE Dean of Chrjstchuroh v. Duke of Dinn v. Grant PAGE . . 403 Buckingham . . 713 Diplock V. Hammond . . 679 Dearden, Se . . . 757 Dirks V. Richards . . . 600 Dearie v. Hall . . 765 Ditton, Exp. . 387, 393 De Bay v. Griffin . . 912 Dixon, Exp. . . . 555 . 628, 640 V. Baldwen . 608 Debney v. Eokett . . . 1095 V. Gayfere 40 3, 921, 931, 4 De Bouchput ii..Goldsmid . 547 V. Muckelston 311, 779 De Conjas v. Frost . 554 V. Parker . . . 18 Deeze, Sa^. . . . 596 V. Peacock . 419 DeffeU V. White . . 357, 478 V. Saville . . . 35 Defries v. Creed . 71, 1121 V. Smith . . 1122 Do Greuchy v. Wills . . 216 V. Stansfield . . 600 De Hoghten v. Money . . . 532 V. Wigram . 699, 701 Delabere v. Norwood . . 801, 1011 V. Wrench . . . 85 Delaney v. Fox . . 713 V. Yates . . 608 Demandray v. Metcalf 583, 4, 811 Dobree v. Nicholson . . 1010 De Mattos v. Gibson . . 563, 1115 Dobson, .SScp. . 370 De Medina v. Grove . . 152 V. Lee . . 1033 Den V. Lord Abingdon . . . 46 1). Land 691, 805 , 888, 1042, Dening v. Ware . . 522 109 ?, 1105, 1106 De NichoUs v. Saunders . . 707 V. Lyall . . . 566, 9 Denison v. Mair . . 879 Dobbin v. Comerford . . 574 Dent V. Dent . . 200, 419 Dobinson v. Hawks . . 1062 Denyssen v, Botha . 288 Dodson's Contract 329, 330 De Pass D.Bell . . 489 V. Wentworth . . . 608 Depree v. Bedborough . 298 Dodd«. Lydall . . 1033, 1094 Derby (Earl of ) v. Taylor . . 242 Dodds V. Hills . 767, 775 Municipal ^states . 362 Doddington v. HaUett . 420 Derbyshire & Staffordshire Rail. Dodgson V. Scott . . . 146 Co. V. Bainbrigge . De Rochefprt v. Dawes . 66 Doe V. Adams . 718, 720 . . 967, 8 . . 309 Desborough v. Harris 398, 512 V. Amey . 73, 4 De Sorbein v. Bland . . 64 V. Baines . . 956 Detillin v. Gale 731, 800, 2, 897, V. Banks . 1142 1116 V. BaU . 127, 456, 526 Devaynes v. Noble . . . 1133 — V. Barber . . 344 V. Robinson . . 287 V. Barton 682, 4, 71 0, 2, 716, 9, Devon & Somerset Kail. Co. . 369 720 Dewdney, Sosp. . . 389 V. Bennett . . 1047 Dewhurst, Hxp. . 493 V. Bird . . . 236 De Winton v. Mayor of Bre con . 359, V. Bluck . 346, 8 362, 6 V. Bottriell . 237, 628 Dibbs V. Goren . . 418 V. Booth . 359, 1140 Dicas V. Stockley . . . 634 — - V. Boulter . . 712 Dickenson v. Allsop . 73 V. Bragg . 662 V. Harrison 868, 889 V. Brown . . 700 V. Smith . . 1122 V. Bucknell . 711 V. Teesdale 9 15, 6, 919, V. Bunn . . 702 922 V. Cadwallader . 681, 6, 711 V. Wright . . 530 V. Capps . . 702 Dicker v. Angerstein . . 254 V. Carter . . 107 , 165, 6, 690 Dickin v. Edwards . . . 949 V. Clifton . 700, 715 Dickinson v. BurreU . . 533 V. Cox. . 685, 9 Marrow . . 481, .'! V. Creed . . 47 Teasdale . 915, 6, 922 V. Davies' . 688, 705 Dickson v. Cass . . 662 V. Day . . 684, 5, 9 V. Swansea. Vale, &c ., Co. 3^8 V. Edwards . 710, 720 Digby, Ihy>. . ' . .- 971 V. Evans . . 51 V, Craggs . . ( 55, 869, 874 V. Ewart . . 290 V. Irvine. 51 V. Eyre . . 912 Dighton V. Withers . . 1031 V. Fallows 283, 521 Dike V. Kicks . . 286 V. Gibbons . . 235 Dilkes V. Broadmead . . 192 V. Giles . . 682 , 684, 6, 722 Dillon V. Coppin . 734 V. Glover . . 1060 V. Cruise . 289, 915 V. Goldwin . 684, 689 V. Plaskett . 1013 V. Goodier 681, 3 , 8, 690, 712 Dimsons, &c., Co. . . 121 V. Greenhill . . . 51, 9 Dingwall, Exp. . 213, 394 V. GuUjr , . 342 Digitized by Microsoft® xlvi TABLE OP CASES. Doe V. Gutteridge. V. Hales V. Hawke — — V. Hawkins — "■Hogg V. Horne . V. Howell — — V. Hughes . V. James PAGE . 667, 676 . 681, 711, 2 . . 166 31 319 715, 'll41, 2 . . 163 . 290, 711 . 237,532 • V. Jones . 47, 52, 228, 132, 1140 • V. Kensington . . 684, 737 ■ • V. Kingston V. Knight ■ V. Laming . - — • V. Larder «. Lawrence V. Lediard D.Lewis 163 75, 427 . 319 306, 662 718, 720 1141, 2 204, 532, 3, 667 V. Lightfoot 225, 684, 9, 715, 912, 1051, 1141, 2 V. Lord . . . . . 723 V. Louch . . . .700 V. Ludlam . . . . 236 V. Lnfkin .... 777 V. Maisey 681, 2, 4, 6, 691, 706, 722 ■ V. Manning V. Mapls V. Martin V. Martyr . — — V, Massy ' V. Mayo — — V. Mears V. Morgan . V. Musgrave . V. Ongley . V. OUey . V. Parry — — ■». Penfold V. Pott ii — V. Price . V. Pyke V. Eamsden . v. Eeade . V. Eoe V. Kolfe . V. Rous V. Rowe . ' V. Rusham . — - — V. Snaith V. Somerville V. Stennett V. Steel- . V. Stone . 237,- 528 . 662 . . 75 . 531 . . 9l2 . 684 . . 344 . 231 . . 343 . • . 721 . 688, 712, 722 66 . . 1141 . 236 . . 228 . 245 . . 342 . 1051 51, 700, 730, 801, 2 . . 528, 9 . 1141 . . . 532 . 633 . . 662 . 342 . . 193 . 701 716 - V. St. Helen'sEail. Co. 340, 359,1141 V. Thompson V. Tofield V. Tom V. Vernon V. Vickers . V. Wagstaff V. Warner . V. Webber V. Wharton 11. Wichelo 11. Wilson . V. Williams V. Wroot Doggett V. Eastern Counties Rail. Co, 711, 720 . . 233, 5 688, 722 . . -233 . 715 688, 705; 722 . 666 . 632,716 49 . . 828 . 682 583, 911, 913 . 231, 3 76 Dokeru Hasler . Dolling V. White . DoUond V. Johnson Dolman v. Nokes . - — V. Smith Dolphin V. Aylward 532, 648, 982, V. Layton Dolton V. Hewen . Domett V. Helyer Dpmville v. Berrington Donald v. Suckling Donaldson v. Donaldson V. Haldane Dpnoaster Permanent Building ' ; Society, He . Spnisthorpe v. Porter Dpiine V. Hart V. Lewis . Donovan v. Fricker V. Needham poody V. Higgins . Donnan, Hoiip. Dprmay v. Borradaile DosweU V. Reece . Douce V. Torrington Douglas, JEi^. V. Culverwell II. Ewing . V. Forrest V. Russell , V. Ward • Dover v. Gregory . Dowblggin V. Bourne . Dowdeswell v. Dowdeswell Powell y. Reece . Dowle V. Ueale . V. Saunders Dowling V. Ford Down V. Hatcher Downe (Viscount) «. Morris Downes, JEhqi. ■ v. Garbett , V. Grazebrook ^ 1). Power . Dowse's Case Dowthorpe Draohachi v. Anglo-Egyptian &c. Co Drake, .Sep. . V. Mitchell V. Trefusis . V. Whitmore Drant v. Vause Draper v. Boylaoe V. Jenning . Dresser v. Bosanquet ., V. Hoare . V. Johns Drew/!). Lockett V. Martin . V. Earl of Norbuiy V. O'Hara V. Power . Drew's Estate Drewin v. Short . Drewry v. Barnes . Drinkwater v. Coombe V. Goodwin PAGE . 139 136, 162 119 253 944, 7, 8 8,1095 156 289 630 1033 579, 583, 5, 6 1160 640 1063 969 204 958, 9 1104 877 1015 449 289, 610, 955 54, 106, 8 . . 954 . . 1157 22 . . 550 . 120 . 433, 573 . 531 . 289, 955 . 1128 . . 1008 . 53, 54, 108 . . 700 323, 855 919, 920, 2 . 1158 43, 1078 . 381 . 161 257, 392 284, 783 1163 604 287, 614 319, 388, 390 642, 3 1160 8, 293 402 848 1012 600 489 156 825, 844, 1129 . 525, 529 113, 792, 1017 992 1116 90 448 364 648 599 Digitized by Microsoft® TABLE OF CASES. xlvii Driver v. Ferrand Drosierv. Brereton Drury v. Hooke . — '■ — V. Man Dryden v. Frost V. Hope Drysdale v. Pigott Duberly v. Day Dublin Exhibition, &e. Dubutofte V. Curteene Duckworth v. Ewart . V. Traiford Dudson's Contract PAGE . 944, 5, 7 . . 299 . 903 . . 174 402, 6, 731, 779, 784, 797 . . 477 . 504, 8, 510 204, 1091 . 121 . 721 . 201 . 1119 179, 329, 330 Co. Dufauru Professional Assurance 606, 7 Duffield V. Elwes . . . . 1164 Duffill V. Spottiswoode . . 138 Duffy 1). Orr . . • . . 621 Dugdale v. Dugdale . . . 979 Duignan, Exp 125 Duke D. Doidge .... 276 Dulie of Bedford .... 568, 9 Leeds v. Munday 1046, 1051 Newcastle, Re 51, 63, 9, 71 Dummers' 'Will .... 1160 Duncan v. Cashin . . 210, 460 V. Chamberlayne 501, 2, 775 V. Manchester Water- works . . . 723 Dunoomb v. Eeeve . . . 587 Duncombe v. Brighton Club . . 879 V. Davis . . .989 V. Greenacre . . . 205 1006 220 516 1117 56, 7 1077 555 814 992 V. Nelson Dundas v. Dutens Dundonald, Earl v. Mastennan Dunk V. Fenner Dunn V. Massey . V. Norwood . Dnnsany v. Latouche . Dunslow V. Patterson Dunstan v. Patterson 724, 731, 5, 801, 4, 896 Dunster v. Glengall . . . 83 Dunt V. Dnnt . . . .804 Dunvegan Castle . . . . 568 Dupre V. Duncombe . . . 929 Duranty v. Hart . . . 567, 577 Durham County, &o., BuUding Society, Re . . . .354 Durham v. Crackles . . . 204 Durraut v. Blurton . . .162 Du Vigier v. Lee Duvall V. Terrey Dwyer v. Edie Dyer v. Bowley V. Lord Craven V. Green Dyke v. Sweeting Dyson v. Hornby 810, 905, 6, 7, 912, 1020 872 508 710 745 673 250 1077 V. Morris 442, 612, 993, 1034, 1093 Eades v. Harris .... 1016 Eaglesfield v. Marquis of London- derry ...... 355 Eardley v Imp. Bk, of England , 146 Eardley v. Law . V. Owen Earle v. Bellingham . 1). Pickin East of E. Banking Co., Re East India Co. v. Atkyns . V. Boddam V. Clavel — ■ — ■ V. Donald East & W. Junction Kail. Re East Union, &c., Co. v. Eastbrook v. Scott Easton v. London Eaton V. Jacques . V. Sauxter . Eccles V. Thawill . Eddels V. Johnson Eddleston v. CoUius Ede V. Knowles . Eden v. Smyth V. Thompson Edey, Mqa. Edge V. Bumford V. Duke V. Worthington Edgecumbe v. Stranger Edmands v. Best V. English Edmond Edmunds v. Povey . V. Waugh Edward, Re . Edwards, Exp. . Re . V. Applebee V. Brown 17. Burt. V. Cunliffe V. Edwards V. English V. Freeman V. Glyn . V. Hanchett ■ V. Harben V. Jones V. Martin 23, Hart 313, 4, V. Scarsbrook V. Scott V. Vere . V. Warden . . . 871 V. Warwick . . . 887 Edwin . . . ■ . . 605, 6 Eeurom 567 Effingham v. Napier . . . 968 Egbert -w. Butter . ... 419 Eggington, Exp 381 Egremont v. Thompson . . . 1161 Eidsforth v. Armstead . . 290, 1 Eisdell V. Coningham Eland «. Eland . 192, 286, 789, 960 Elbome v. Goode . ... 974 Elder v. Beaumont . . . 382 V. Maclean . . . . 770 Elephanta .... 569, 870 Elias V. Griffith .... 1110 Elisha V. Elisha .... 1079 Eliza Cornish 565 Ella A. Clark . , . 604, 5, 7 874 PAGK 146 186 296 772 879 16 748, 9 530 866 369 364, 6 129 851 241 62 812 962 234, 1082 , 5, 7, 531 -. 1157 . 1161 . 448 748, 1167 . 603 . 312 . 784 . 448 . 472, 3 . 568, 9 . 869 907, 8, 9 . 263 . 441 20, 425 . 333 . 891 . 895 991, 1024 71, 1121 . 472, 3 . 971 . 535, 6 . 1158 426, 9, 517 . 718 501, 2, 772, 1018, 1088 127 458, 502, 866 877 Digitized by Microsoft® xlviii TABLE OF CASES. Ellerthorpe, Be . Elliot V. Edwards V. Merriman Elliott V. Bishop V. Cordell V. Fisher V. Montgomery. Ellis' Trusts, Be . Ellis, Ea^. . V. Deane V. Emmanuel V. Griffiths , V. Guavas . V. Keg. . V. Silber . V. Wilmot EUison V. Elwin . V. Thomas , V. Wright Elmer, Mxp. PAGE . 754 . . 403 282, 291 . 439, 442 . 205 . . 287 . 952 . . 211 . 539 . . 1007 . 1136 1025, 1112 . 1005, 1038 . . 184 . 386 622, 1136 . 206 . . 275, 6 . 797 ; . 456 . 1111 . . 526 . 110 237 ' 206, 1040 . . 851 808, 810, 811, 906 . . 161 Elseyj). Cox . V. Lutyens . Elston V. Wood Elwin V. Williams Elton V. Elton Elvy V. Norwood Elwell V. Quash Emancipation Emanuel 1). Bridger CoUege V. Evans Emery, Exp. . Emes V, Widdowson . Emmet v. Tottenham Emmot V. Marchant . Emperor v. Wolfe . . Empringham v'. Short , Empson s case Empusa Emuss V. Smith Eugelbaek ii. Nixon England v. Codrington V. Downs V. Lord Tredegar English & American Bank, Be English Joint Stock Co. Eno V. Tatham . Ensworth v. Griffith Enthoven v. Hoyle Entwistle, Be . Equitable Insurance Co< Erriugton v. Howard Erving v. Peters . Esdaile ii, Oxenham V. Trustwell . Eslick, Bs . . Espey V. Lake . Espin V. Pemberton Essex V. Baugh . Estwiok V. Cartland Ettyr. Bridges . Eugenie . Europa European Bank, Be V. Fox European Central Bail. Co., Be 143, 367, 644 European, &c., Co. v. Eoyal Mail &c., Co. . . 431, 663, 5, 1115 . 567 380, 471 15 . 599 . 642 89S, 1075 . 479 . 274 180, 520 . 1063 . 570 960, 981 210, 455 18, 801 210, 450 . 748 . 384 . 122 . 21, 9 357, 365 . 488 V. Puller 1034 . . 344 . 120 402, 3, 625 . 147 447, 8, 467 . 894 779, 784, 866 88, 110 . . 614 . 769 . . 570 . 607, 865 . 597, 784 158 PAGE Eustace v. Keightley . . .413 Evans, Ma^. . - 70, 1, 124, 380, 1121 u Bicknell 779, 851, 3, 9, 866 V. Bremridge V. Brown. Cookeram V. Crosbie V. Elliott . V. Evans . V. Hallam . V. Jones . V. Judkins r V. Martell . V. Niohol. ■ V. Powis V. Kees . ■ V. Scott V. Smithsou V. Traman — — 1). Tweedy . V. Walshe V. Williams Eveleigh v. Purssford . Evelyn v. Evelyn 271, 3, V. Templar Even's Claim . Everard v. Poppleton . Ewbank v. Nutting Ewer ■». Corbet . Ewin V. Lancaster . Ewing ■». Osbaldeston . Exhall Coal Co., Be Exmouth Docks Co. . Exton V. Greaves . V. Scott . Eyles, Exp. . V. Gary Eyre v. Burmester 785, 705; 1135 43, 190, 962 945 955 711, 2 304 126 336, 514, 524, 735 885 550 486 1158 97 274 968, 989 549 915 244 118 514 8,970 532 1163 163 676 280 1132 403 415 366 26 734 125 952 288, 967, D. Dolphin . V. Hanson V. Hughes . V. Marsden 1). M'Dowell V. Sadlier . V. Walsh V. Woodsine Eyton V. Denbigh. &c. Rail. Co. V. Knight. 862, 864, 6-, 1157, 8 . 112 . 1024, 6 744, 6, 1117 . . 974 64, 7, 83, 306, 413 405 912 42 410 1138 Fagg's Case . Fagg V. James Faircloth v. Gumey . Fairclough v. Marshall Fairfax v. Montague . Fairlie v. Denton . 859 . 855, 863 . 844 . . 715 . 929 . . . 484 Fairtitle u Gilbert . 359,718,1142 Faith V. East India Company . 603 Faithful, Be 624 PaithfuU V. Ewen . . .639 Faithome v. Blaguiro . . . 161 Falk, Eap 613 Falkner v. Eq^uitable Reversionary Society . >. . . 251 V. Grace. . . . 956 Fall V. Elkins .... 1118 Family Endowment Society . 1163 Digitized by Microsoft® TABLE OF CASES. xlix Fancom-t v. Thorn . PAGE . . 665 Finch V. Shaw . 854, 863, PAGE 980, 1025 Farebrother v. Wodehouse 825, 838 V. Squire V. Winchelsea . 197, 340 Farhall v. Farhall . . . 284 . 54, 65 Farley, Exrp. . 311,8 Finney's Estate . 1052 V. Briant . . . 186 Finney v. Hinde . 84 r. Turner . 488 Fish V. Kempton . 554 Farmer v. Curtis . . 1006, 9, 1078 Fisher, Exp. . 381, 391 , 539, 540 V. Giles . 1063,4 V. Bridges . 901 Farquhar v. Morris . . . 867 v. Calyert 499, 679 Farquharson v. Balfour . 423, 4 11. Dixon . 437, 8, 9 — V. Floyer . . . 979 V. Dudding . 58, 166 Fan- V. Newman . 138, 283 1). Fisher . 959, 982 Farrar v. Barraclough . 293, 9 • V. MUler . 484 ■ V. Wintertou . . 402 V. Smith . . 620, 1 Farran v. Beresford . . . 917 1}. Touchett . 827 Farrant v. Level . . 704, 5 Fishwick ■». Lowe . . 101 Farrell v. Gleeaon . . . 917 Fisk V. Fisk .1037, 8 Farrow v. Eeea . 645, 9, ( 551, 789, 854 Fitch V. Jones 901 Faulkner v. Bolton . 102 5, 1088, 1099 V. Rochfort. 588 V. Daniel . 647, 650, 743, 879, V. Sutton . 1158 1007, 1089, llOi 2, 1119, 1125 Fitzgerald v. Burk . 768 Fausset v. Carpenter Faweet ii. Fothergill . 927, 8, 1051 V. Fauconberg 41, 863 . 1078 V. Fauconbridgfc784, 863,1083,4 Fawcett v. Gee . . 129 u Field . 949 V. Lowther . 33, 42, 233, 6 V. Rainsford . 242 Fawcus, Re . . . 452 V. Stewart . 303 Fawell V. Heelis . . 404 Fitzmaurice v. Murphy . . 1095 Fazakerly v. Ford . . . 278 V. Kelly . . 943 Fearenside v. Derham . . 441 Fitzmanrices, Re, The . . . 919 Fearnley v. Wright . . 398 Fitzwilliam v. Kelly . . 943 Featherstone v. Fenwick . 310 (Earl) V. Price , 303, 6, 806 Fector v. Philpott . 175, 180, 244 Flack V. Downing College . 233, 4 Fee V. Cobine 22, 421 V. Longmate . 1038 Feistel v. King's College . . 199, 770 Flarty v. Odium . . . 199 Fell V. Brown . 1006, < ), 1078, 1095 Fleetwood's Case . 13 2, 179, 859 Fellows V. Clay . . . 351 Fleming's Case . 1163 Feltham v. Clark . . 766, 845, 1012 Fleming, Exp. 72 Felton V. Ash . 701 V. Buchanan . . 190 Fendall v. May . . 167 V. Self . . . 1061, 4 ' Fenn v. Bittlestone . 429, 449, 685 Flemming v. Page . . 791 Fentiman v. Fentiman 270, 1, 298 Fletcher, Exp. 245, 386, 7, 390, 470, Fenton v. Blackwood . . 796 1004 B. Wills . . . 974 V. Gibbon . 364 Fenwick v. Laycock . . 138 V. Heath . . 548, 9 V. Potts . . . 306 V. Sidlev . 525 V. Reed 326, 931 Flight V. Barton" . . 778 Fereyes v. Robertson . . 943, 4 V. Bentley . 319 Fergus, Executors of, v. Goi -e . 1111 V. Camac . . 695 Ferguson v. Fyffe . 870 V. Salter . . 344 V. Gibson. 972, 1129 Flindt V. Waters . . 308 Fergusson v. Norman . . 588 Flint V. Warren . . 956 Fermor's Case . . 715, 738 Flockton V. Hall . . 1158 Feronia . 606 Florence, &c,, Co., Re . . 361 Ferrand v. Clay . . 252 Florence v. Jennings . 143 Ferrars v. Cherry 763, 788 Flory V. Denny . . 426 Ferrers v. Stafford, &c.. Rail Co. . 410 Flower, Exp. . 481 Ferrier v. Jay . Ferris v. Mu lins . 3 . . 1051 V. Banks . . 419 13, 322, 394 V. Marten . . 1157 Field V. Cook . . . . 1030 Floyd V. Aldridge ■ . 233 V. M'Kenzie . 146, 7 V. Mansel . 925 ■». Megaw . . 482 Floyer u Bankes . 890 V. Sowle . 211, 214 V. Lavington 24, 234 Field's Mortgage, ifc . 1052, 4 V. Sherard 24 Fielden v. Slater. . 787 Flyn, E3^ . 428 Figlia Maggiore . . 614 Focus V. Salisbury . 738 Financial Corporation, &c ., V. Follett V. Delany . . 602 China Co., &c. . . . 154 Footner v. Sturgis 66 Finch V, Brown . 1104, 6 Forbes (Lord) v. Deniston . 109 V. Hattersley . 289,955 - — ■ V. Moffat . 6 49, 650, 2 Digitized by Microsoft® TABLE OF CASES. PAGE Forbes v. Peacock . . 286, 9, 291 v. Rioliardson . . . 296 Ford, Exp. , . . . 394, 455 — Be 217 «. Dornford , . .128 V. Earl Che-sterfield 23, 733, 885; 1032 v. Heely . ... 254 V. Olden .... 21 V. Rackham . . . 694, ll'SS V. Stuart . . . 529, 530 - — V. Teunant . . . . 1017 V. Tynte .... 1096 D. WasteU . 66, 1024, 6, 7, 1028 — - V. White 110, 4, 733, 764, 772 Fordham v. Wallis 913, 919, 922, 3, 8, Fotrest v. Elwes . V. Prescott '. Forrester v. Leigh ' Forshall u. Goles . Forshaw, Re Eorster v. Hoggart . V. Thompson Forsyth v, Bristowe Fortescue v. Barnett . Forth V. Duke of Norfolk Forwood's Claim Fosbrooke v. Balguy 11. Walker Foster, Re V. Blackstone V. Blake V. Gookerell V. Colby V. Crabb . v. Eddy V. Framptoii V. Handley . V. Hargreaves V. Harvey V. Parker . V. Roberts . V. Smith FothergiU v. Fothergill V. Kendrick. Foulger v. Taylor . Fountaine v. Caine , V. Carmarthen Fourdrin v. Gowdey . Fowler v. Chui'chUI V. Foster . V. Fowler . V. Roberts V. Scott V. Wightwiok . Fox V. Buckley . V. Crane . — — V. Lownds . V. Nott . Foxoraft ■». Wood Foxcroftr. Devonshire Foxley, Exp. FoXon V. Gascoigne Frail v. Ellis Frampton-i;. Frampton France v. Ciimpbell . . 744 . . 944 962, 5, 979 . 96, 105 ■ . 632, 4 . . 253 934, 954 912, 919, 920 . 50] 52, 54, 133 399, 987 . 1044 . ,833 528, 751 63, 766 . 926 . 764, 5 603, 614 . 861, 3 995, 1033 . 608 39 ', 826, 846 . 1000 . 929 754, 996 605,895 i 271, 297 . 413 261 175, Rail, . 478 . 996, 7 Co. 355, 6, 8, 362 . 956 82, 3, 4 . 464 874, 889 . 166 . 1097 . 1104 . 419 . S'38 . 339 . 614 . 617 . 827 . 538 . 637 321, 404, 5 523 140 18,9, Prance v. Cowper Francis, Ex/p. Re . -. V. Francis I}. Grover Prancklyn v. Fern Fraiikland, Re . Franklin v. Neate . Franklinski v. Ball Franklyn, Exp. Franks v. Cooper Eraser v: Burgess . ; ~ — 11. Pendlebury V. Swansea, &o., Co. V. Thompson Fray v. Drew . 854, Frazer v. Jones . 823, Freak v. flearsey Freake v. Cranefeldt Frederick v. Aynscombe Free, Exp. V. Hinde . Freedom Freeman v. Apployard . V. Banes . ■ V. Butler V. Edwards V. Ellis. V. Pope V. Read. — ■— V. Simpson Freemoult v. Dedire . Freer v. Hesse Frere v. Moore . Freme v. Brade French, jEirp. V. Baron . V. Chichester . V. French . JFreshfield, Re . Freshney v. Carrick Fribourg v. Lord Pomfret Fripp V. Chard RaU. Co. Friswell v. King . Frith V. Forbes , V. Rotherham . fcosel ■». Welsh Frost V. Oliver . Fry 1). Capper — — -V. Fry. 'D.Porter V. Sherborne, Lord I'uenteii 11. Montis . Fuller «. Benett . ' . [■ V. Earle ' . V. Redman* Eulthrope v. Foster Fulwood's case . ■ , tuthev Exp. . ■ . V. Furber. Fumess u' Caterham Rail. Co, Fuiy V. Smith . Gabriel v. Sturgis Gage V. Lord Stafford Gainsford 1;. Dunn Gait V. Osbaldeston PAGE 698 389 430, 45-8, 471 626, 633 908, 913, 5 1017, 1072, 6 154 579, 586, 665 740 1161 881 415, 422, 3, 4, 633 . 1088 . 452 . 522 ■ . 1079 863, 1022 . 1005 . 915 23 . 384 892, 1119 . 614 . 652 . 738 . 730 683, 8, 690 220, 958 518, 620, 2 . 250 . . 270 . 413, 5 . 10b, 763 . 824 . . 604 219, 300 . 743, 1109 944, 8 525 767 448, 9 832 6, 1118 362, 483, 9 662, 6 238 571 209 877 772 274 664 784 82, 3 118 326 48, 138 462, 476 . 733 . 865, 6 . 89 732 724 962 863 Digitized by Microsoft® TABLE OP CASES. PAGE Galbraith v. Cooper . . . 787 Gale V. Bumell . 429,432,685, 9 - — V. Lewis . 502, 773 V. Williamson . . 519, 524, 9 Gall V. Fenwiok . . 939 Galliers v. Moss 1046, 7 Gallimore v. Gill . . . 956. Gaily V. Selby . 41 Galton V. Hancock 1, 942, 958, 975, 988 Games, Hscji. . 520, 631 Gammon v. Stone . . . 803 Garbett v. Veale . . 139 Garden v. Ingram . Gardiner v. GrifBth . . 227 41, 341, 745, 993 Gardner v. Boucher . . 1091 V. Cazenove . . 573, 4 V. Hatton . 1048 V, LaoWan . 495, 573, 766 V. London, Chatham & Dover Rail. Co. 72, 340, 358, 9, 360, 366 V. Marshall . 205 V. Townshend . 413 V. Walsh . . . 1133 Garforth ■;;. Bradley . 886, 1029 Garland v. Carlisle . 878 V. Mead . . 233 Garlick v. Jackson . 1025, 1112 Garmstone v. Gaunt . 271, 287, 295 Garner v. Briggs . . 74, 5 V. Hannyngton . . 850 Garnett v. Armstrong . 645 V. Bradley . . 62 Garrard v. Frankel . 857 V. Lord Lauderdale . . 303 V. Lord Dinorben . . 874 Garrett v. Evers 1037, 1055 Garry r. Sharratt 309, 314, 396 Garth v. Ersfield . . . 532 V. Howard . 580 V. Thomas . . 701 V. Ward . 791, 2, 1016, 1025 Gaskell's Trust, Se . . . 211 Gaskell v. Gaskell . 483 Gaslight Co. v. Terrell . . 546 Gaston v. Frankum . 212 Gaters v. Madeley . . . 206 Gatty v. Field . . 901 Gaunt V. Taylor . 117, 143, 872 Gauntlet . 568, 572 Gaussen v. Morton . . 165, 307 Gay V. Cox . . 871 V. Hall . . . 163,5 Geaves, JScp. . 447 Gedye v. Matson . . . 1006 Gee V. Lane . 167 1). Mahood . . 297 V. Smart . . .646 Geldard v. Hornby 874, 1025 Geller, Ea>p. ■ . . 892 General Estates Co. . . 364, 365 V. City Bank 363 Cemetery Co. . 370 Finance, &c. , Co. V. Liberator, fee, Soc. 716 Furnishing Cc . V. Venn . 464 Provident, &c , Co., He . 857 Share Trust Co. v. Chap- man . ■ . . 626 PAGE General South American Co., He 357, 368, 491 Steam, &c., Co. V. Bolt . 1130 George v. Clagett . 554 V. Elston . . 629 V, George . . 36, 37 V. Milbanke . 530, 659 Georges v. Georges . 625 Gerahty v. Malone . . 315 German Mining Co., r,e . 358 Gerrard, Sxp. . . 67 V. Gerrard • . 266, 272 Gervis v. Gervis . . 412, 962 Gibbes, Hxp. . 608 Gibbins v. Eyden . . 940, 961 Gibbon v. Gibbon . 1056 Gibbons v. Braddall . . 403, 4 V. Hooper . 344 Gibbs' Case . . 354, 361 Gibbs V. Charleton . 563 V. Cruikshank . 705, 714 V. Daniel . . 896 V. Flight . . 82 V. Pike . 74 Gibson v. Boutts . 536 V. Bruce . . . 621 V. Carruthers. . 608, 610, 2 V. Dickie . . . 897 V. East India Co. . 200 V. Hewett . . . 730 V. Ingo . 565, 573, 5, 781 V. Jeyes . . 896 •— — V. May . . 627 V. Minet . . . 484 V. Muskett . 536 V. Nicol . . 732 V. Overbury . 495, 509 V. Sogers . . . 271 V. Seagrim . 977 Giffard, Sxp. . . . 1132 Giffard v. Hort . . 1011 Gilford, £xp. . . 621, 1135 Gilbert v. Golding . 803 V. Guignon . . 487 V. Dyneley . . 728, 1125 1). WethereU . . 1156 Gilbertson v. Gilbertson . . 945, 6 Gilbey, £xp. . 398 Giles V. Grover 132, 171, 4 Gilkison v. Middleton . . 603 GiU's Case . . 400 Gill V. Continental Gas C !o. . . 83 V. Downing . . 618, 806 V. Eyton . 730 u Newton . . 250 Gillibrand v. Gould . . 275 Gilliland v. Crawford . . 419 Gilly V. Burley . . 603 Gilpin V. Clutterbuck Girolestone v. Lavender . 899, 901 . 1000 Girling v. Lee . 40, 413 V. Lowther . 532 Gist, Jle . . . 221 Gittins V. Steele . . 943, 9, 952 Gladstone v. Birley . . 601 V. Padwick . . 519 Gladwyn D. Hitchman . . 1018 Glaholm v. Kowntree . 40, 513 Glaister v. HeWer . . 525, 545 Digitized by Microsoft® lii TABLE OF CASES. Glascott V. Day PAGE . . 885 ■y.Lang. Glass V. Eiohardson . 571,2 . . 233 Glasse v. Marshall . 486 Glazbrook v. Gillat . . . 769 Gleaves v. Paine . . 205, 999 Gledstanes v. Allen . . 602 Glegg D. Glegg . Glennon v. O'Donoglme . . 414 . 631 Glover v. Hall - . . . 730 V. Moore , . 200 Glyn, Ihep. . . . 316 V. Baker . . 553 -- — V. Baxter . . 210 v. Hood . . 483 V. Locke . . 512 Gobe V. Carlisle . . 1005 Gobind v. Adminis.-Gen. of Bengal 550 Goddard v. Complin . . 814 V. Ingram . . 923 V. Lethbridge . 592 V. Whyte . . 1127, "8 Godefroy u Jay . . 641 Godfrey v. Chadwell . . 1012 — ^ ■». Harben . 214 V. Tucker . 52, 65. 70 V. Watson 48, 243, 655, 728, 743, 4, 6, 7, 796, 806, IHI Godin V. London Assurance Co. . 599 Godsall V. Boldero . . 509, 617, 1037 Goldsmid v. Stonehewerl009, 1015, 1034 Goldsmith v. Kussell . . 85, 525, 6 Goldsworth v. Knight . . . 716 Golt ». Atkinson . 187 Gomez, Exp. . . 488, 490 Gomley v. "Wood . 1117 Gomm V. Parrott . . .865 Gomme v. West . . 1122 Gomersall, Re . . 383 Goooh's Case . 521, 8 Gooch V. Haworth . 53, 1121, 2 Good, Exp. . 599 Goodall's Case . . 12, 15 Good all ■». Rivers. . 266, 272 V. Skairatt . . 924 Goodbum v. Marley . . 902 Goodohap v. Weaving . . . 633 Goodohild*. Terrett . . 192 Goode V. Burton . 309, 402 V. Waters . 352 Goodhall v. Rivers . . 266, 272 Goodhue . . 576 Goodier v. Ashton . . . 994 Goodman, Eaip , . . 383,5 ■»; Grierson . 16, 21, 6 V, Harvey . . 553 V. Kine . . . 1033 Goodrick v. Brown 34 Goodricke v. Taylor . 538,541 Goodright v. Moore . . 701,2 v. Moses . 528, 531 Goodtitle v. Bailey . 715, 1071 V. Bishop . . 699 ■». Milbum . . 692 ■». Morgan . ' '16, 843, 853 V. Notitle . . 700 — — V. Lonsdown . . . 700,2 V. Pope. . 699 Goodwin v. Gray . . . 1136 PAGE Goodwin v. Lee . . . . 950, 8 1). Eobarts . . 364, 663 V. Waghorn . . . 318 Goodyere «. Ince . . . 47, 132 Goofabrick, N. E 605 Gordillo v. Wegneliu . . 357, 868 Gordon v. Dunstone . . . 1086 " V. Gordon ... 42 V. Graham . . . 781, 826 V. Horsfall . . .992 V. Selby .... 18 Gore V. Bowser . . . . 53, 8 V. Gardner . . . . 668, 9 V. Harris . . . . 1015 V. Staopoole 792, 927, 1011, 1027 Goreley, Exp 806 Gorier v. Mieville . . . 653 Gorman v. Byrne . . . . 327 Gosling V. Carter . . . 290, 1 Goss V. Neale 514 Gossip V. Wright . . . 21, 2 Gottlieb 11. Cranch . . . . 604 Gott V. Atkinson . . . 187 Gough V. Andrews . . . . 268 V. Bult .... 907 V. Everard . . . 464, 471 V. Offley .... 731 Gould V. Robertson . . . 1030 V. Tanored. . . . 1104 Gouldsworth v. Knights . 712, 9, 720 Gouthwaite v. Rippon . . . 268 Governors of Charity, &c. v. Sutton . . . 1151 of (ha.y Coat Hospital V. Westminster Im- provement Commrs. 62, 1013 Gowan v. Broughton Gower ■». Gower Gowing V. Mowbray . Gowland v. De Faria Goymour u Pigge Grace v. Lord Mountmorris Graham v. Chapman . V. Connell V. Dyster . V. Furber . v. McCullock v. O'Keefe V. Webb V. Witherby Grainge v. Warner Grane v. Mitchell . Grant, Re . V. Grant V. Mills . 1). Norway . V. Shaw . V. Vaughan . Grantham v. Hawley . Grantley v. Garthwaite , - Gratitudine GratriXD. Chambers Graves v. Davies . V. Graves . V. Hicks . Gray «. Carr . V. Dowman V. Jones . V. Limerick 959, 974 . 649 . 733 . 891,2 . 1086 . 1006 538, 540 82 . 647 448, 521 . 460 . 524 . 448 . 139 . 771 . 701 . 457 . 872 . 404,6 . 613 . 478 . 685 . 433 237, 602 . 570,6 . 297 . 1030 962, 3, 4 296, 971 . 60S . 999 . 477 . 276 Digitized by Microsoft® Table op cases. liii PAGE 897 948 1136 450, 6 72 121 959 422,5 211 383 266, 272 109 63,4 462 271 801,2 640 695, 6 975 495, 509 857 192 935 1135 741 945,7 539 151, 929 287 767 766,9 452 350 1133 731 83, Gray v. Mathias V. Minnethorpe . V. Seckham . Great E. Rail. Co. v. Turner Greats. & W. Rail. Co. . Great Ship Co. . Created «. Groated . Greathead, Me Greatley v. Noble . Greares, Exp. V. Mattison V. Tofield V. Wilssn . Green v. Attenboroiigh , V. Belcheer v. Briggs . . 602, V. Dixon V. Farmer . V. Gascoyne V. Ingham V. Sevin . V. Lowes V. NichoUs V. Wynn Greenaway v. Hart Greene v. Greene . Greener, Exp. Greenfell v. Girdlestone Greenfield v. Edwards . Greening, JScp. V. Beokford . V. Clark . Greenlaw v. King Greenough v. McClelland Greenway, Eayi. . Bromfield . . . 907,9 Greenwood, Eiep. . . 391, 451 V. Churchill 789, 821, 823 V. Firth . 399, 801, 1031 V. Hothwell . 730, 1073, 5 V. Taylor 244, 399, 845, 6, 986, 7, 1029 r. Wakeford . . 1053 Greetham v. Colton . . 286, 290 Gregg V. Arrott . . . 645, 740 — =r ,„. Slater . . . 798, 800 Gregory v. Oresswell . . . 631, 3 V. Molesworth . . . 997 V. Pilkington . . . 884 Gregson, iJe 633 — - V. Hindley . . 1007, 8 Grenfell v. Commrs. of Inland Revenue . . . 669 V. Dean of Windsor 342, 3, 9 Gresley v. Adderley . . 695, 1123 V. Mousley .- . . . 897 Greswold v. Marsham . 55, 645, 1012 Greville v. Chapman . . . 902 Grey v. EUison . . 503, 6, 806 V. Grey .... 948 Grice v. Shaw . . . . 649 Grieveson v. Kirsopp . . 202, 224 Griffin v. Clowes . . . . 658, 9 Griffith V. Ricketta . . .730 Griffith's Case . . . . 1163 Griffiths V. Griffiths . . .631 V. Hughes ... 75 Grigg V. Stujgis .... 732 Grimsby v. Webster . . . 799 Grimstone, Exp. Grindellu Brendon Gripper v. Bristow Grissell's case 6rissell V. Money Grosvenor v. Green . Grove, jEg). V. Aldridge . Groves v. Lane . Grugeon v. Gerrard, PAGE 650, 1080 . 461, 479 . 161, 4 . . 367 . 307 . 777, 787 381, 635 . . 171 . 1008 381, 724, 734, 817, 831, 834, 6, 1088 Gniggen v. Cochrane . . . 874 Gryll's Trust, Be . . . . 276 Gubbins v. Creed . . 740, 6, 1114 Guest ■». Cowbridge Rail. Co. 70, 1, 108 V. Harrison . . . 894 Gummer v. Adams . . . . 1157 Gundiy v. Baynard . . . 995 Gunn V. Bolckow . . . . 404 Gunter v. Gunter . . . 651 Gumell V. Gardner . . . 484, 537 Gumey v. Behrend '. . 487, 612, 5 V. Duckett .... 1112 V. Jackson . . 733, 1023 V. Seppings 496, 7, 657, 724 Gustaf 607 Guthrie v. Wood . . . . 517 Gutteridge v. Fletcher . . 250, 5 Gwillim V. Holland . . . 649 Gwynne, En^. . . . 412, 601 ■ — — V. Edwards Gyde, Exp 390 Gyles V. Hall 885, 6 Habershon v. Gill . . . 1118 Hacket v. Wakefield . . . 814 Hackney Boro' Newspaper Co. . 368 Haddon v. Fladgate . . .209 Hague V. Dandeson . . . 616, 7 Haig V. Homan .... 241 Haigh, .&P 311 V. Frost .... 162, 3 V. Jones . . . . 142 V. Kaye .... 18 Haille v. Smith . . . . 485 Haines, Exp 39], 2 Hains' Trust 975 Hakewell v. Webber . . . 1021 Hale V. Dale . . . 162, 163 II. Metropolitan Saloon Omni- bus Co. . 464, 519, " Hales V. Cox . V. Freeman V. Hales V. Stevenson Haley v. Hammersley Halford u Kymer Halkett, Exp. Hall, Exp. . V. Brooker — - V. Carter . V. Dale . V. Dawson , V. Day . V. Dewes , .1). Doe . V. Dunch . V. Franck 482, 6 439, 521, 537 984 278 910 920 440 508 567 808 949 267, 272, 288 162 748 472 255 715 33 1039 Digitized by Microsoft® liv TABLE OP CASES. Hall II. Hugonin V. Laver V. Maodonald i>...May , . — — V. Odfier V. Ody V. Potter V. Prjtohett . V. Smith V, Surtees . V. Tapper — — v.. Waterhonse Halleii V. Runder Halletti). Hallett V. Dyne Halliday, Ha^. u Holgate Hallifax, Exp. • (Marquis of) v. Halliley v. Eirtland . Halliwell v. Eastwood V, Tanner Halse V. Peters Haly V. Barry Hamburg Hamer's Devisees' Case Hamer v. Giles ■ -^— V. Tilsley. Hamerton v. Rogers Hamilton's Windsor Iron Hamilton, lie . 1). Bell V, Lloyd. V. Royse 11. "Worley Hamlet v. King . Hamlyn v. Betteley . -^— • V. Lee . Hammersley v. Knowlys Hammond, Exp. . . ' Hammond v. Anderson V. Messinger Hammonds v. Barclay Hamper, Exp. Hampshire v. Bradley Hampson v. Fellows . Hampton v. Hodges V. Spencer . Hams, Re Hanby v. Fisher . V. Roberts . H anbury v. Lichfield . Hancocks v, Denierio-Lablaohe 212, 7 PAGE . 206 628, 633 39 . 254 . 120 . 629 . 903 . 155 . 776,, 7 . 738 . 117 . 210 . 437 . 418 . 142 . 542 . 583, 6 . 310 Higgens 883 809 466 960, 978, 980, 981 . . 662 64, 83, 4, 766 . . 576, 7 . 190 . 380, 639 . 419 . . 811 Works. 354>:9 . . 88 . 447 . . 1056 786, 983 . . 969 . 893 . . 461 . 1122 . . 1134 . 392 . 608, 613 . 485 . . 599 . 139 . 249, 256 . 688 . . 706 . 19, 28 451, 478, 975 . 978 . 962, 984 778, 791 Hancock V. Att.-Gen. . V. Hancock Hancox «. Abbey Handcock v. Handoock 1). Shaen Handford v. Stdrie . Hajidley v. Farmer Hankey v. Vernon . Hanman v. Riley Hannah v. Hodgson Hansard v. Hardy Hanson v. Derby . . - — , v.. Keating 13. Preston .. - — . 11, Reeoe ^ 43, 190, 322, 1003 . . 998 . 946 . . 150 . 1011 . . 308 . 1061 . . 305 1016, 1031, 5 . . 789 929, 1025, 1099 . -745 . 204 . 1010 629, 630 PAGE Harbershon v. Blurton . , . 139 Harberton (Lord) v. Bennett . 1131 Haroourt v. Knowell . , . 859 1). Morgan . . . 1056 Harden v. Forsyth . . . 127, 167 Hardey v. Felton . . .258 V. Green . . . 434, 522 Harding, Exp 448 V. Crethom . . .794 V. Hall .... 345, 6 V. Harding . . . 940 V. O'Grady . . 952 V. Pingey . . 27, 1086, 8 Hardingham v. KichoUs . . 767 Hardman v. Johnson . . . 244 Hardwick v. Mynd . 404, 1162 Hardwicke (Earl of) v. Vemon . 877 Hardy v. Reeves . . . 746, 796, 928 9 Harei), Bickloy . . . . 343 V. Horton . . . 440, 1 Harewood v. ChUd . . . . 948 Harford v. Carpenter . . . 310 — — ■ V. Lloyd . . . 416 Hargrave v. Hargrave . . 75, 99 Hargreaves v. Mitchell . . 194 V. Rothwell . . 784 Harland v. Binks . . 303, 524 Harman v. Anderson . . . 609 V. Fisher . . . . 609 V. Forster . . . 647 '. U.Johnson. . . . 641 : V. Kingston . . . 508 V. Richards. . . . 209 Harmeru Bell .... 607 ' V. Johnson . . . . 136 V. Priestley . . 802, 887 Harmood v. Grander . . 33, 958 Harnett v. McDougall . . .209 Harper v. Faulder . . 782, 858 V. Godsell . . 579, 1079 V. Hayes . . . 252 Harrington v. Long . . . 658 V. Price . . 309, 863 Harriott's Case . . . 422, 6 Harris, Exp. . . 447, 8, 472, 6 Me 221 V. Birch . . . 663, 5 • V. Booker . . .49, 51, 9 ■ V. Davison . . . . 63 V. Harris .... 874 • V. Mott . . . . 210. V. Poyner . . . 419 V. Pugh ... 51 V. Quino .... 639 V. Rickett . . . . 539 V. Royal British Bank . 145 11. Exp., Ness ib. V. Saunders. . . . 120 V. Watkins . . 289, 965, 961 Harrison, Ee .... 804,5 V. Andrews . 206, 1040 V. Bainbridge . . . 629 V. Blackburn . . 246 V. Duignan . 906, 9, 921 . V. Forth . . .763 , V. Harrison . 339, 975, 989 V. ;Hart, . . 584, 5,91 ■; . V. Hojlina , . . 926 Digitized by Microsoft® TABLE OF CASES. Iv PAGE Harrison v. Jackson . . . 1048 V. Kennedy . . . 999 V, Owen . . . 1157 V. Pennell . 66, 124, 1013 V. Round . . 276, 8, 649 V. Scott . . . . 484 V. Sonthcote , . 401 V. Wiltshire . . . 896 Harrop v. Howard . . . 209 V. "Wilson . Harryman v. Collins . Hart, Uxp. V. Craddook V. Eastern Union Rail. V. Middlehurst . V. Stevens Hartford v. Mattingly . Hartland v. Murch — — V. Murrell . Hartley, Ha^. V. Allen V. Burton — — V. Flahertie V. Hitchcock . V. Hurle . V. Russell V. Shemwell Hartop V. Hoare Hartpole v. Walsh . Hartshorns v. Watson Hartshorn v. Sladden Hartwell v. Chitters . Harvey, Uxp. V Ashley V. Gilbard V. Scott V. Tebbutt Harvey-Bathurst v. Stanley Harwood v. Bartlett . V. Fisher . V. Tooke Haselfoot's Estate, Be . Haselinton v. Gill Hasluck V. Pedley Haslewood.'W. Pope Hassell v. Hassell . Hastelow v. Jackson . Hastie v. Hastie Hastings, Be, . V. Astley . V. Beavan , Hatch V. Skelton . Hatchell v. Cremorne . V. Egglex . Hate V. Snelling . Hatfield's Estate . Hatfield v. PhUlips . Hatton, Be . V. English V. Haywood Hawes v. Watson Hawker, Exp. V. HalleweU . Hawkey, Mcp. Hawkins v. Coulthurst V. Gardiner , V. Gatheroole V. Ramshottom Co 360, 2, 800, 649, 800 129 872 '359, 7, 736 530 206 162 954 289, 955 982 888 982, 1096 ISO 598 946, 952 658 154 580,4 267, 275 907 536 394 788 78 li6, 7 1, 1027 277 5S7 206 436 813 209, 428, 450 944, 8, 984 952 901 418 195 1082 84, 5 651,945 854 204 1021 1161 548 1158 477,8 49, 70, 1, 124 . 613 200, 538, 9 127, 900 709 510 PAGE Hawkins v. Taylor . . .818 V. Woodgate . . . 505 Hawley v. Cutts . . . .1056 Hawthorn v. ^Newcastle Rail. Co. 452, 495, 596, 608 Haworth v, Parker Hawtry v. Butlin . Haycock's Policy, Be Hayden v. Kirkpatrick Haydon v. Wood Hayes v. Brierly . V. Hayes . Hayman, Exp. V. Dubois . V. Flewker Hayines v. Cooper 926 62 249 Hayne v. Rhodes Haynes v. Forshaw V. Haynes Hayward, Be . . V. Stillingfleet Haywood v. Bibby . Head, Be . V. Egerton . Headen v. Bosher Headley v. Readhead Heald v. Hay Heales v. M 'Murray Heams v. Bance . Heap 11. Tonge Hearle v. Botelers V. Greenbank Heart of Oak Heath v. Brindley . V. Chadwick V. Crealock . V. Heath . V. Key . Heathcoat, jEicp. Heathcoate, Exp. . Heather v. Bell V. O'Neil Heathorne v. Darling Heatley v. Thomas Hebe . Hebdon ■;;. West . HobblethWaitei'. Cartwright 266, 267, 8, 272 Hedderley, Exp. Hedges v. Everard . V. Hedges Heighington v. Grant Heinekey v. Earle Heiurioh Heinrich v. Sutton Hele V. Lord Bexley 1030 . . 467 499, 509, 512 . . 645 . 290 . . 1021 879, 880, 1094 . 449, 460 . 983 . . 552 . 639 . . 640 191, 284, 989 297, 1027, 1032 . . 200 . 338 . . 665 . 441, 451 310, 779, 853, 863 . 892 . . 412 . 200 . . 713 . 810, 811 529, 530, 1 . 404 . . 877 . 569 . 97, 166 . 1077 716, 860, 863, 1019, 1022 . 946 . 1132, 3 . 441 306, 316, 317, 389, 1022 . . 128 1082, 3 . 780 . 214 . 565, 9 . 509 Helena Sophia . Helgoland Hellawell v. Eastwood . Hellier v. Jones Heming v. Archer Hempstead v. Hempstead Henchman v. Att.-Gen. Henderson v. The Comptoir d'Es- compte de Paris V. Lloyd 383, 565 415 971 1108 609 638 638,9 57, 150, 694, 934 . 605 567, 8, 570, 1 438, 9, 441, 2 266 189 1032 230 489 521 Digitized by Microsoft® Ivi TABLE OF CASES. ■Heneage v. Andover (I ord) PAGE 272, 295 Henley & Co., JJe . , 171, 184 Henleyj). Stone . . 1075 Henessy, Re . . 774, 5 Henry v. Smith. . . 907,9 Henshall v. Matthew . . 167 Hensman «. Fryer 961, 978, 9 Henson v. Blackwell .617, 1138 Henvell v. Whitaker 289, 955 Hepworth v. Heslop .731, 1031 v. Hill 938, 968 Herbert v. Eae . . 1123 V. Salisbury . . 884 Herbert's Case . 149, 791 Exp. . . 827 Hercy v. Ferrers . . 750 Hermann t>. Hodges . . 201 Hernaman, Exp. . . 642 Heme Bay Waterwork. Co. . 366 Hero . . . 567 Herrick v. Attwood . 858 Hersey . . . 568 Hervey v. Audland . 186 V. Ferrers . . . 1098 Heslop, Exp. 447, 768 V. Metcalfe . . 631 Hesse v. Stevenson . 790 Heveningham v. Heveniiigham . 981 Hewer v. Cox . 477 Hewett ■». Snare . . . 979 Hewison u. Guthrie . 596, 620 V. Negus . . . 528 Hewitt, iJe . . 757 V. Loosemore . 776, 9, 856. 7 V. M'Cartney . . 698 1). Nanson . . . 1000 Heyoock v. Heycock . . 271 Heydon's Case . . 50 Heytnan v. Dubois 983, 9, 1134 Heyter v. Jones . . 266 Hibbard v. Bagshaw . . 438 Hibbert v. Barton . . . 163 - — - 11. Cooke . 419 Hibon V. Hibon . 960, 976 Hichens v. Kelly 1005, 8 Hickes v. Cooke . . 740 Hickey v. Hayter 96, 117 Hiokford v. Machin . . 54 Hickie & Co. . 491, 3 Hickling v. Boyer . . 968 Hickman v. Cox . . 524 V. Machin . 710, 714 V. Upsall . Hicks V. Powell , 297, 8, 909, 933 . 115 V. Sallitt . . . 909 Hickson v. Collis 100, 6 Hidden, Exip. . . . 488 Hiern ii. Mill 314, 321, 776, 9 Higgenson v. Kelley . . 644 Hig^nbottom v. Higginbottom . 162 Higgins' Trusts . . . 120 V. Frankis 733, 838, 1010, 1091 V. Joyce . , . . 896 'tf. Pitt . . . 129 V. Soott . . . 635 7). Shaw ' 191 , 792, 1017 — — 1). York Building Co 51, 104 Higgons v.- Burton . ■ . . 580 Higgs V. Schraeder PAGE . 638 V. Soott . 709 Higinbotham v. Holme Hiles D. Moore 523, 644 1116, 9 Hill Pottery, iJc . 121, 747 Hill, Re ... . . • 451 v. Adams . . 794 ■ r. Biokersdike . 768 V. Brown . 75 U.Browne . . 1044,1095 V. Edmonds . 204, 1009, 1010 V. Ex;ter (Bishop of) . . 531 V. Fox .... . 903 ». Maurice . . 194 v. Paul .... . 199 V. Price . 232 V. Salford Waterworks . . 362 V. Simpson . 283 V. Spencer 897 V. S. Staffordshire Co.. 879 V. Stawell 920,1 Hilliard v. Gambel 891 Hillman, Exp. 644 Hills «. Shepherd 473 Hilton «. Jones 196 Hind v. Poole . . . 256. 1039 Hinde 650 Hindle v. Taylor . 296 Hine, Exp 323 Hine v. Uodd . . . 109. 110 Hinton v. Hinton 338 Hiorns v. Holtom . . 800, 856, 999 Hipkin v. "Wilson . . 1081, 2, 4 Hipkins v. Amery . . 782. 796 Hippesley, Exp. . 183 11. Spencer . . . 708 Hirsch v. Coates .... 156 Hirst, Exp 387 Hirst 11. Hannah 162 Hirtzell, Exp 856 Hisoocks v. Kemp 136 Hitchcock v. Caruw . . . 1019 Hitchmau ». Stewart . 1137 V. Walton 441, 3, 68] I, 2, 6, 691 Hoare v. Osborne . . . . 210 V. Parker .... 580 1). Peck . . . . 929 Hoare's Case .... 358 Hobart v. Abbot . . 100 5, lOJl Hobbs v. Norton'. 848 Hobby n. Allen . . . ." 203 Hobday v. Peters . . 21 4, 1043 Hobhouse, Exp 492, 3 Hobsonu Bass . 1136 n. Bell .... 251, 3 V. Melloud 321 V. Shearwood . . . 628 — — u Thelusson . 132 V. Trevor . . . . 436 Hockley v. Bantook . 312 Hodel v. Healey . . . . 18 Hodge u Att.-Gen. . 43, 17 4, 1003 u Churchward . . . 915 11. Lewin .... 297 Hodge's Case . . . , 867 Hodges V. Croydon Canal Co. . 73 6, 802, 887, 906, 7 11. Everai-d 415 Digitized by Microsoft® TABLE OF CASES. Ivii Hodgkin, E.rp, . . PAGE . 540, 543 Holthaiiseii, E.r.j. . PAGE • . 483 Hodgkinson, Hxp. . 379, 386 Holton V. Lloyd . :>7, 1103 V. Quin . . 290 Holyman, Exji. . . 392 Hodgson, Exp. . . 390, 1, 2, 3 Homan, Exp. -14S, 465 V. Anderson . le.*;, 481, 3 Homers;. Luff . . 157 V. Dean . . . 114 Homfrey v. Gery . 905 V. Gascoigno . . . 397 Hone V. O'Flahcrty . 145 V. Hodgson . . 876, 1111 Honeycomb v. Waldron . . 109 V. Loy . . . 610 Houner v. Morton . . 206, 1040 V. Shaw . 1128, 1130 Hood V. Easton . . 1110 Hodgson's Case . . 306 V. Hood . 64, 940 Hodle V. Healy . 18, 928, 9, 934 v. PhiUips . . 647 Hodson ('. Patterson . . 75 Hooman, Exp. 448, 471, 8, 1103 V. Tea Co. . . 866 Hooper, Exp. 310, 1, 2, 3, 812 V. Terrill . . . 901 V. Cooke . . . 747 Hoggard v. Mackenzie . 457 V. Eyles . 415, 422 Holbird v. Anderson . . 513 V. Gumm . . 556, 565, 848 Holborrow v. Lloyd . . 201 V. Keay . 848, 1133 Holcroft's Case . . 519 V. Parmenter . . 478, 9 Holcroft V. Manby . 73, 5, 154 V. Eamsbotton 309, 580, 852, Holden, Sxp. . . 76 863 V. Heam . 320 Hopcraft, Exp. . . 464, 8 Holdenby v. Spolforth . . , 287 Hopoi;. Booth . . 406 Holdemess v. CoUinsou . 600 V. Clifden, Lord . . 274 V. Lamport . . 561 f. Hayley . . 432, 4 V. Eankin . 454, 5, 517 V. LiddeU . . 632, 1051 V. Shackels . 615 Hopewell v. Barnes . 84, 771 Holdfast V. Clapham . . 235 Hopgood V. Ernest Hopkins v. Abbott . . 782 Holding V. Barton . 929 . . 1048 Holdsworth v. Davenport . . 340 0. Clarke . 348, 380 V. Hatch . . 242 V. Gowan . . . 419 Holford V. Hatch . . . 242 ('. Hopkins . . 1011 V. Holford . 631 V. Worcester & Birming- V. Yate . . . 1024 ham Canal Co. . . 364. 6 Holl V. Everhall . . 215, 6 Hopkinson v. Ellis . 955 Holland, Eiqi. . . 213 V. Eorster . . 483 V. Baker . 1015 V. Rolt . 825, 826, 838 V. Cork, &c., Rail . Co. 72 Hopper V, Conyers . . . 416 V. Clark . 909, 920, 9 Hopwood V. Watts 96 • V. V. Hodgson . 439, 441 Horlock V. Priestly 235 764, 790, 843 V. Holland . 1117 V. Smith 799, 805, 1104, 5, 1117 V. Smith . . . 504 Horn V. Baker . 445, 451, 3, 4 Holies V. Wyse . . 883 V. Horn . . 192 Holliday v. Bowman . . 948 Hornby, Exp. . 381 Hollier v. Eyre . . 1132 V. Match am . . 749 Hollingsworth v. White . 472, 6 Home, Exp. . 394 HoUis V. Bnlpett . 1087 V. Anglo- Australian, &c., Co. 506 V. Claridge . 594, 626, 635 V. Shepherd 117, 8, 633 Holman v. Loynes . 896 Hornsby v. Lee . . 206 Holme 1). Williams . . 188 V. Miller . 448, 9 V. Brnnskill . . 1131 Horrocks v. Ledsam 733, 1006 Holmes, Exp. . . 1136 V. Rigby . 528 V. Bell . 642, 1118 Horsfall, Exp. 1051 V. Mathews . i . 22, 4 Be 1054 V. Mentze . 139 Horsley v. Cox G6, 80, 6, 154 V, Penny . V. Powell 620, 2, 3 Hort's Case . 1163 . 777 Horton v. Riley . . 129 V. Turner 834, 1022, 1089, | V. Smith . . . 648 1091 Hosken v. Siucock 252, 802, 3, 887 v. Tutton . . . 380 Hostler's Case . 599, 607 Holmesdale v. West . . 278 Hotchkin, Eicp. . . 835 Holroyd v. Marshall . 132, 3, 4, 468 V. Humphrey . . 274 Holsgrave v. Hedges . . 127 Hotham v. Somerville . 124 Holt 1). Dewell . 495, 504, 765, 6, 792 | Hough V. Edwards . . . 630 V. Everall . . . 216, 7, 544 Houlditch V. Collins . . 142 V. Holt . . . 242 V. Wallace . 619, 776, 792 V. Kershaw . . 163 How V. Kirchner . 603 V. Mill . . 814, 859 r. Vigui'es 799, 992, 1008, 1048 V. Murray . . 117, 120 Howard, Re . 755 Digitized by Microsoft® Iviii TABLE OP CASES. PAGE 1 PACK Howard v. Bank of England . . 217 | Hunt V. Gateler . . 328 V. Chaflfers . . . 284 V. Hooper . . . 521 i>. Harris 16, 7, 26, 870, 1078 i V. Priest . . 1122 V. Prince 1081, 2 Himter v. Daniel . . . 658 Howarth, Be . . 270 V. Greensill . 166 V. EothweU . . 298 V. Langford V. Leathley . . 201 Howcutt V. Bonser. . . 920 . 632 Hqwden v. Haigh . ISO, 623 V. Maolew . . . 1075 Howe V. Hunt . . 708 V. Nockolds 808, 810, 811, 906, V. O'Flaherte . . 145 9, 914 Howel V. Price 6, 26, 325, 931, 942,959, | V. Parker . . 161, 565 1018 V. Waiters 856, 7, 861, 2, 865 V. Young . . 641 Huntington v. Greenville 816, 859, 861 Howells V. Wilson . . . 1100 V. Huntington . 972, 1081 Howes V. Wadham 1006, 9 Hurst V. Hurst 733, 789, 861, 999, 1000, Howorth V. Deem . . 787, 866 10'J5 Howse V. Cliapman . 187, 340 Husband v. Davis . 1039 Hubbard v. Bagshaw . . 438, 453 Huspn V. Blockwell . . 508 Hunkle v. Wilson . . . 1064 V. Hewson . 701, 1101 Hudson V. Carmiohael . 972 Hussey v. Christie . . 665, 604 V. Granger . . .')99 Hutchings, app. Nune , resp. 009, 610 V. Malcolm . 1096 Hutchinson v. Heyworth 481, 3, 679 Hue V. French . 473, 525 V. Johnston . . 133 Hughes, Sxp. . 644 V. Kay 438, 9, 440 V. Cook. . 1087 V. Wilson . 506 V. Doulben . . 187 V. Wright . . 564 V. Howard . . 240, 4 Huthwaite, Be . . 107 ■». Hughes . . 1123 Hutton V. Bragg . . . 002 V. Kearney . . 404 V. Cooper- . 127 V. Kelly . . 732, 906 ■». Cruttwell . 434, 539, 540 V. Lumley . . 107 V. Mayne . 992, 4, 8 V. Wells . . 43, 214 V. Sealy . 258, 999, 1031 V. Williams 90 9, 1109, 1110, Huxtable, Eigi. . . 544, 5 1114 Hyde v. Dallaway . . 926, 933 V. Wynne 194, 873, 6, 915 V. Large . . 1022 Settlements, Be . . 755 V. Price . . 871, 2 Hughes' Trust, Be . . 764 V. Warden . . 777, 1119 Huish's Charity . . . 789 V. Watts . . 623 Huit V. Cogan . 47 V. White . . 436 Hulett's Case . . . 356 Hylton-i;. Hylton . . . 894 Hulkes V. BaiTOW . 735 Hynes v. Redington • . 191 V. Day 51, 82, 3, 5, 769 Hull & Hornsea Eail. Cc .,Be . 72 HuU & Selby Eail. v. N E. Eail. 879 Ibbetson, Exp. 1). Ibbetson . . 501 Hull u Sharbrook . 232 946, 964 Hulme V. Coles , . . . 1132 Ibbotson V. Rhodes . . 848 V. Tenant . 211, 214 Imbert, Exp. . 493 Hulton V. Sandys . . . 765 Imperial Land Co. of Marseilles . 1044 Humber Ironworks Co. Be 361, 399, Mercantile, i ko. Asso. V. 987 Newry R. . . 361 Humberston v. Jones . . 667 Mercantile, &c., Asso. Humberstone v. Chase . . 794 V. London, Chatham & Humble v. Bill . . 281 Dover Eail .Co. . . 354 V. Humble . 908, 912 Salt&Alkal I Co., Be . 415 Hume 1). Eundell . 268 Steam, &c. C !o. . . 121 Huinphrey v. Arabin . . 504 Imray v. Magnay . 137, 521 V. Richards . 209 Inohiquin v. French . , .944,7 ITumphreys v. Harrison . . 705 Incorporated Society V, Richards itungerford, Be . . 1161 1100, 4 V. Becher . . 716 India . . 604, 7 V. Clay . . 740 India & London, &c. Bank . . 1163 V. Earle . . 522 Indomitable . . . 569 — — V. Hungerf 3rd . . 879 Indoro). Morris . . 1015 Hunsden v. Cheyney . . 848 Ingle V. Partridge , . . 299 Hunt, Exp. . 316 Ingleman v. Worthini itton . . 297 V. Bateman . . 915, 921 Ingoldsby v. Eiley . . . 1063 V. Coles . . 51,59,104 Ingram v. Pelham . 786 r. Elmes . 779, 863 Inman v. Clare . . 493 V. Fownes. . 798 V. Parsons . 1019 Digitized by Microsoft® TABLE OF CASES. lix PAGE Inman v. Wearing . . 1086, 1099 Innes v. East India Co. . 155, 200 V. Jackson . . 41, 1078, 1081, 2 Innisfallen .... 563, 5 Inns of Court Hotel Co., Se 354, 7, 362 Insole, Re 217 International Life Assurance Co., Re 358 International Pulp Co. . . 368 Ion V. Ashton . . 340, 944, 6 Irby V. Irby . 645, 810, 994, 1031 Ireland v. Eade . ... 1123 V. Thompson . . . 666 Ireson v. Denn . 832, 5, 7, 1006 IrisU N. W. Co., Ro . . .369 Irnliam v. Child . . . . 18 Iivin V. Ironmonger . . . 960, 2 Irvine v. Union Bank of Aus- tralia 355 Irving V. Cuthbertson . . . 741 V. Viana . . . . 629 Isaack v. Clark .... 579 Isaacson v. Harwood . . . 736 Isle of "Wight Ferry Co., Re . 71 Ismoord v. Claypool . . 1024, 6 Ithell V. Beane . . . . 630 Ivory V. Cruiokshank . . . 133 Ivy V. Gilbert Izard, Mxp. 271, 2, 3, 5, 742 . 540 Jack V. Armstrong . Jackmant). Mitchell . Jackson, Sxp. Uxp., re Bowes Re & Oakshott, re V. Bowley V. BrettaJ V. Briant . • — - V. Cummins V. Davison V. Foster V. Hobhouse V. Langford V. Kichol V. N. E. Rail. Co. V. Parker V. Pease . V. Eowe V. Vernon Jacobs, Ee . V. Brett V. Latour V. Richards Jacques v. Chambers Jacquet v. Jacquet Jacubs V. Rylance Jakeman v. Cook . James, Exp. V. Biou V. Bydder V. EUis V. Griffin V. Hales . V. Harding V. Howard. 109 129 393, 1162 688 446, 476, 540 1070 518 1020 186 594 129 507 209 814 611 736 1081 975 789 241 1136 79 608 1018, 9 943 907 418 128 126, 363 1072 311 200, 1093 609 1094 1076 161 962, 760, James v. James V. Rea V. Bice . V. Eumsey . Jameson v. Stein Jane Janes v. Whitbread Janson v. Rany . Jardiue, Sxp. V. Leathley Jarman v. WoUoton Jarvis v. South . Jason V. Eyre . JauUeiy v. Britten Jauralde v. Parker . Jay, Mcp. . Jayne v. Hughes . Jeanes v. Wilkins Jebb 1). Hodge Jefferys v. Dickson . 1013, Jeffries V. Alexander Jeffryes v. Agra Bank Jenkiu v. Row . Jenkins v. Briant . V. Jones. 11. Keymis . V. Perry . V. Portman Jenkinson v. Harcourt Jenkyn v. Vaughan Jenkyns v. Usborne Jenner v. Morris . V. Tracy . Jenney v. Andrews V. Bell . Jennings, Exp. Re V. Bond . V. Johnson ■ V. Looks . V. Moore V. Eigby . Jennings v. Ward Jenny . . . Jerrard v. Saunders Jersey (Earl) v. Briton, &o, Jessopp V. Lutwyche Jewan v. Whitworth Jeyes v. Booth . Jezeph V. Ingram Job V. Job Joddrell v. Joddrell Joel V. Dicker John Johns V. James V. Simons . Johnson, Ex^. V. Bourne v. Burgess V. Child 412, 11. Credit Lyonnais 11. Curtis . v. Diamond . ■ V. Fesemeyer V. Foulds . V. Gallagher . 11. Hill . 11. Holdsworth PAGK . 321 322 '313, 10^2 . . 7jO . 647, 9 , . 567 426, 524 . 866 . . 440 . 564 . . 4.50 . 168 , . 16, 28 - 549 . . 154 . 471 , . 918 . 131 , . 307 , 1087, 1125 339, 340 . 771 994, 1034 . . 871, 2 252, 802, 887 . 288, 630 . 889 . 319 . 964 . 622 552 630, 851 y25, 936 . 214 . 386 . 393 89 . 792 . 896 . 882 , 335, 763 . 118 19 . 571 862 410 . 901 . 551 . 164 428, n\-, Co. 760, 1102 . 888 162, 3, 4 . 575 . 303 . 571 . 1136 747, 7.i2 70 958, 979, 980, 9 .')52 lllB . 156 635, 6, 8, 897 . . 276 . 212 . . 598 99, 107, 8, 1012, 3 e 2 Digitized by Microsoft® 1x TABLE OP CASES. PAGP Johnson v. Jones 710, 2 903 11. Lander 217 V. Legard. 531 V. Milksopp . 942 V. Nott . 892 V. Robarts 488 V. Sliippen . . 667, 571 V. Thomas . . . 1017 V. Webster 651 V. "Williamshurst . . 801 Johnson's Settlement . 1160 Johnstone v. Stem . . 583, 5, 6 Joint Stock Discount Co., Be 399, 987 Jolland V. Stainbridge 109, 110, 772 Jolly V. Arbuthnot . . 684, 690 Jonathan Goodhue . . 570 Jones, fe). (10 Ch.). . 125 , 385, 6 (12 Ch. D.) . . 213 (4 L. J. N. S. Bky. 7 4 D. & C.) . . 307 (3 M. & A.) 311, 389, 394 • '■ Be . . . 760, 804 , 5, 974 's Mortgage . 759 V. Ashurt . 521 V. Bailey . 66, 321, 1000 V. Barrett . 346 V. Binns . . 1011 V. Bruce 949 V. Consolidated, &c. Co., 506, 7 V. Creswicke . 874, 1025, 1088 V. Croucher . . . 628 V. Davies . 1083 V. Dyer 452 V. FarreU . 482 V. Frost 638 V. Gibbons 446, 452, 4£ 7, 501, 659, 7 65, 844 V. Gordon . 776 V. Greatwood . 201 - — V. Griffith . . 1019, 1081, 9 V. Harber. . 534, 7 640, 2 V. HaiTis 478 V. James . 877 V. Jones (5 Ha.) , 295 (8 Sim.) 371, 3 764, 5 (8 M. & -W.) 6 08, 613 • (Kay) 1098 V. Kenrick . 1028 V. Kearney 774 V. Lewis . . .2 99, 750 V. Marsh . . .i 529 V. Matthie . . 802 V. Maund . 1133 1). Medlioot . 311 V. Meredith . . 5 2, 1080 V. Moffett . . .89 6, 1117 V, Morgan . . 6 17, 8, 9 V. Noyes 191 V. Owen ... 6 86, 690 V Pearle . . . . 598 V. Peppercome . V. Phelps . . . . V. Powles . 596 128 862 v. Price . . 255, 6, 288 V. Pugh .... V. Eoberts . . . . 1005 897 V. Sawkins 1158 PAOE Jones V. Smith (2 Yes. J.) 579, 583, 810, 2, 825, 832, 4, 837, 1006 (1 Ha. 43)778, 9,780, 2, ,9, 1125 V. Starkey . . .483 V. Swiney . . . . 702 ■ V. Thompson . . . 156, 6 V. Thurloe . . . . 698 — - V. Tripp .... 1116 V. Whitaker . . . 533 V. WiUiams 74, 6, 314, 6, 775, 6, 9 Jones Brothers, Be . . .144 Jordan v. Chowns . . . . 700 V. Farr .... 168 V. Jones . 75S, 098, 1040 V. Roberts . . .628 Jorden v. Money . . . . 488 Jortin V. South Eastei-n Rail. Co, 107, 746, 1142 Jory i;. Cox . . . . 41, 883 Joselyne, £Ep 380 Joy V. Birch . . . . 22, 4 - — V. Campbell . . 447, 954 Joyce V. De Moleyns . . 732, 863 V. Joyce .... 1013 V. Williamson . . . 570 Joynes v. Statham . . . 18 Judd V. Green . ... 659 V. Ollard . . . 897, 1117 Judson V. Etheridgo . . . 594 Julindhur 604 Jumpsen v. Pitchers . . . i)26 Karet II. The Kosher, &c.. Asso- ciation . . . . . Kamak . Kay V. Fosbroke . V. Johnston V. Smith . Kealyii. Bodkin Keane, Be . Kearny v. Lynch Kearsley v. Cole Kebell v. Philpot . Keech i>. Hall 686, 705 Keeler, Be . . Keeling v. Brown Keene v. Beard . V. Biscoe Keightley, Hxp. . Keily, Be Keith V. Burrows Kellock's Case Kelsall, JSxp. V. Bennett V. Kelsall Kelaey v. Kelsey Kelson, Bq . V. Kelson . Kelvington v. Gardiner Kemmis v. Stepney Kemp, Mi^. . V. Canavan V. Mathew V. Waddingham ■y.Westbrook 442, Kemys v. Rusoomb 475 569 1076 420 894, 5 _ 907 637, 9, 640, 797 25 622, 1135 . 320 i, 711, 714, 1078 . 756 946, 953, 5 . 483 . 226 . 390 . 981 562, 574 399, 987 766 789 996 725 383 529 16 1162 446 615 168 118 583, 4,993 151 579, Digitized by Microsoft® TABLE OF CASES. Ixi PAGE PAGE Kendall v. Hamilton . . 736 King V. Tarleton . 171 V. HuUfl . . 1022 V. "Watson . . 175 Kenebel v. Scraftx)n . 1031, 3 V. Zimmerman . . 749 Kennard v. Eutvoye 321, 376 ■ (The) V. Bates . . 340 Kennedy v. Daly . 413 — - V. Catherington (liili. V. Green . . 730, 783, 7 of) . 694, 729 Kennett v. Westnimster Improve- ■ V. Coombes 3, 1090 ment Commissioners . . 156 V. De la Motte 180, 994 Kenrick v. Lord Beauclerk . 290 V. Humphery . . 174 Kensington, Exp. 310, 1, 3, 5, 7, 395, V. Lee . 174, 5 446, 600, 1138 V. Mildmay . . 231, 3, 5 (Lord) V. Bouverie 647, 839, King's Mortgage . . 1047 880, 1076, 1102 Kingsford v. Merry . . 680 V, Chantler . . 545 1'. Swinford . 720 Kent, Re ... . . 754 Kingston, Exp. Kinloch v. Craig . . 759 Benefit Building Society, 599, 600, 1 ifc ... . 354 Kinnoul (Earl of) v. Money 972, 3, 993 V. Pickering 37, 119 Kinsman v. Kinsman . . 791,2 V. Riley . . 518 Kirby v. O'Shee . . . 57 V. Tapley . 1056 V. Potter . . 590 V. Thomaa . 857 Kirchner c. How . . . 603 Kenworthy v. Bate . 288 V. Venus . 603, 621 Kenyon v. Suttou . 1086 Kirk, Exp. . . . 488 Ker •». Ker . 984 V. Clark . . 530, 1 Kerakoose u Brooks . 435, 455 Kirkei). Kirke . . 949 Kerford u Mondell . . 600 Kirkham v. Smith 34, 648, 801 Kern v. Deslandes . . 602 Kirkley v. Hodgson . . ^ol Kerr's Policy . . . 323, 867, 8 Kirkman v. Shawcross . 596 Kerriok v. Safifery . 994, lUlO, 1034 Kirkpatrick v. Tattershall . . 128 Kerrison v. Cole . 588 Kirkpatrick's Trust . . 219 V. Donien . 315, 531 Kirkwood v. Thompson 268, 287, 928, Kershaw v. Kalow . . 251 1042 Kestrel .... . 731 Kirlew v. Butts . ' . . 344 Kevan, Exp. . . 543 Kirwan -o. Daniel . . . 303 V. Crawford . . 522 Kitchen v. Irving . 562 Key, Exp. 126, 391 Kitchin v. Ibbetson . . 457 Keyes v. Elkin . . 1135 Kite u Queintou . 232 Keynsham Co. . 122 Kittier v. Raynes . . . 383 Keys 11. Williams . 312 Knapp V. Bumaby . 867 Kidd V. Boone . 736 V. Williams . . 340 V. Eawlinsou . . 517 Knebell v. White . 1116 Kidney v. Coussmaker . 518, 522 Knight V. Bampfield . . 1116 Kidson v. Turner . . . 129 V. Bowyer 143, 150, 777, 915 Kightley v. Kightley . . 953 V. Bulkeley . . 199 Kilderbee v. Ambrose . . 342 V. Davis . . 942 Kilmurry v. Geeiy . 288 . • V. Fergusson . . 535 Kilner, Exp. . . 540 V. Frampton . . 649 Kinderley v. Jervis 64, 191, 2 — — V. Hunt . . 129 King, Exp. . . 382, 44] , 540, 832 V. Knight 852 , 1007, 1083 V. Briant . . 1020 V. Maclean . 872 v. Bromley . 27 V. Maijoribanks . . . 21 V. Corke . 623 V. Robinson . . 1047 V. Cotton . . 171 V. Waterford . . 351 V. Denison . . 946 Knollys ■». Shepherd . . 1048 ■ 11. Dilliston . 231 Knott, Exp. 41, 409, 808, 818, 9, 821, V. Drummond . . 43 822 4, 827, 862 V. Greenhill . 15 t, 868, 889 Knowles' Mortgage . . 368 v. Harvey . . 177 Enowles v. Chapman . 796, 1111 V. Heenan 257, 1125 1). Spence . . 746, 926, 1109 ■». King. . 17,32. ), 736, 942 Knox V. Kelly . . 106 V. Lamb . 859 V. Turner . . 504 V. Leach 758, 1023 Kruger v. Wilcox . Kuckein v. Wilson . . 599 V. Marshall . 360 . 547 V. Martin . . 1010 KuUberg, iJc . . . 456 V. Midland Rail. Co. . . 994 Kymer v. Suwercropp . 610 V. Sanderson . . . 175 Kynaston v. Kj-naston . . . 946 v. Sankey . . 635 -!). Smith 176, 181, 705 , 760, 798, 1030 Digitized by Microsoft® TABLE OP CASES. I'AGE Laoam v. Mertins . . . 972 Laoey v. Hill 1134 V. Inglo . . . 808, 827 V. Wieland . . . . 499 Lachton v. Adams . . . 206 Laokihgton v. Atherton . . . 609 Lacon v. Allen .... 316 V. Liffen . . . 454, 540 ^ V. Mertins . 243, 402, 1111 Ladbroke r. Lee . . . 564, 780 Ladd, Exp 421 Lady Durham . . . . 604 Laing v. Reed .... 354 Lainson v. Lainson . . . . 872 Lake v. Brutton . . . 1128, 1130 V. Thomas . . . 929, 932 Lamb, Eaga. .... 448 V. Attenborough . . 552, 680 Lambe v. Jones .... 73 V. Orton . . . . 482 Lambert v. Buokmaster . . 626 V. PameU . . . . 142 V. Rogers . . . 750 V. Turner . ... 296 Lambton, Exp. . . . 491, 4, 994 Lampier v. Despard . . . 949 Lampon v. Corke . . . 401 Lancaster, Exp 504 Bank Co. v. Cooper . 1009 ■». Eve . . . . 489 V. Evors 656, 882, 917, 972, 1043, 1129, 1137 Lance v. Aghonby . . . 945 Lancefield v. Igguldeii . 962, 975, 9 Landon v. Eergusson . . 96, 117 V. Morris , . . . 1017 Lands Improvement Co. mond . . . Lane, Be V. Chapman V. Dighton ^ V. Grylls . V. Husband . V. Jackson . Lang V. Smyth V. Rich 1148 1048 899, 902 414, 6 210 1030 113, 4 553 851, 945, 964 Langdon v. Godlrey . . . 640 Langford v. Auger . . . 1052 V. Barnard . . . 15 Langfort v. Tiler .... 610 Langham's Tnist . . . 339, 340 Langhorne v. Harland . . .63, 65 Langley v. Earl of Oxford . . J80 Langridge u Payne . . 23, 226 Laugstaffe v. Fenwiofc . 743, 4, 1117 Langston, Mcp 811, 3 Langton v. Horton 64, 138, 433, 4, 9, 572, 8, 8, 766, 823 V. Langton . 734, 796, 993, 1031, 2 Lanoy v. Duke of Athol . 971, 7, 984 Lansdovme v. Lansdowne . 11,'886 Lant V. Crisp 1028 V. Peace .... 667 L'Apostre v. L'Plaistercr . . 445 Larchin v. North Western Deposit Bank 478 Largan v. Bower .... 1123 Lanos v. Gurety . . . . 201 Larkins v. Paxton Laslett V. Cliffe Latey, Exp. .... Latham v. Chartered Bank of India . . . V. Hyde .... Latimer v. Aylesbury Rail. Co. V. Batson Latouche v. Lord Dunsany PAGK . 120 . 699, 1000 V. Lucan . Latour v. Holoombe . Latter v. DashWood Laurence v. Beverley . V. Fletcher — — V. Galsworthy V. Walmsley V. West Indian Commrs. 1153 Lavender v. Blakstone . . 530 Law V. Bagwell . . . . 303 V. Glenn . . . 871, 1125 V. Law 897 V. London Indisputable Life 407 . 1131 . 635 . 411 '428, 517 109, 111, 2, 8, 827 . 303, 1030 . 1076 . . 1104 . 1037 . . 635 612, 983 . . 1131 Policy Co. V. Warren Lawless v. Mansfield Lawley v. Hooper . Lawrance v. Boston ' . V. Galsworthy Lawrence v. Beverley . V. Fletcher V. Walmsley V. W. I. Commrs. Lawrie v. Banks Lawson v. Hudson V. Wright . Lawton, Bo. Layard v. Maud Laycock v. Johnston Layfield v. Layfield Lazarus v. Andrade Lea V, Hintou Lea's Trust . Leach v. Leach Leadbitter, Re . Leader . Leah, Ee Leahy v. Dancer Leake v. Beckett . V. Leake V. Yomig . Learing, Exp. . Learoyd v. Robinson Leask v. Scott Leatham v. Amor Leather v. Simpson Leathes, Eii^. . Loathes v. Leathes Leathley v. French Le Blanch v. Granger Leohmere v. Brotheridge V. Charlton 140, 509 . . 504 896, 1019, 1117 . 25," 325 662, 734 816 1037 635 1130 1153 617 969 1137 888 856 491 37 433, 434 605, 8 757 414 1010, 1077 630 626 105, 1008 705' 277 641 404 551, 2 612 433 489 7, 394 319, 851 887 671 210 970 V. Clamp. 755, 7, 1022, 1023 V. Lechmere . . 413 Lee, Jpp., and Hutchinson, Mesp. 693 V. Green . . 99, 114, 524 V. Hewlett . . . 371, 764 V. Lookhart . . 129, 621, 804 V. Newton . . . , 196 Digitized by Microsoft® TABLE OF CASES. Ixiii PAGE Lee V. Nnttall .... 41 V. Park . . . .37, 119 V. Risden .... 438 V. Vernon . . . . 242 Leech's Claim . . . 399, 987 Leedham i;. Chawner . . . 415 Leeds Banking Co. . . 74, 212 V. Cheetham. . . . 227 Leeming, lie . . . 220, 651 Lees, Exp 391 V. Reffit .... 629 V. Whitoley •. . . . 227 Leese v. Martin . . . 596, 597 Legard v. Hodges . . . 413 Legassick v. Bishop of Exeter . 346 Legat V. Sewell . . . . 34 Legg V. Evans . . 138, 595, 607 V. Mathieson . . 359, 362, 5 Legh V. Legh . . . .982 V. Wanington . . . 954 Le Grice v. Finch . . . 1048 Le Gros v. Cockerell . . . 1056 Lehain v. Philpott . . . 457 Leicester ■«. Rose . . . .129 Leicestershire Banking Co., Exp. 384 Leigh V. Ashburton, Lord . . 62 V. Lloyd . 294, 314, 788, 1019 Leigh's Estate . . . 419, 1160 Leith V. Irvine .... 744 Leith's Estate, Ee '. . . 422, 4, 5 Leitrim (Lord) v. Enery . . 650 Leman v. Newnham . 910, 968, 9 V. Whitley . . .402 Lempriere v. Pasley . 428, 486, 550 Lench v. Lench .... 413 Leneham v. M'Cabe . . . 110 Le ISTeve v. Le Neve 105, 9, 110, 783 Lensberg's Policy . . .129 Leonard v. Baker . . . 428, 517 Leoniuo v. Leonino . . 938, 958 Leslie, Exp 420 V. Guthrie . 433, 486, 573 Lester v. Garland . . . . 523 L'Estrange v. L'Estrange . 200, 482 Lett V. Morris . . . . 481 Letts V. Hutchins . 885, 1087 Leuckhart v. Cooper . . 552, 601 Leuthwaite v. Clarkson . . . 319 Levi's Case 490 Levick, Exp 122 Loving V. Caverley . . . 996 Levinson v. Syer . . . . 162, 3 Levy V. Lovell .... 380 V. Tuckett . . . 422,423 Lewer, JJc 774 Lewin v. Okeley . . . . 40 Lewis, Exp. . . 393, 471, 558 Be . . 125, 760, 896 V. Dunoombe . 58, 335, 914 V. Dyson . . . . 142 V. Freke .... 288 V. HiUman . . . . 895 v. John . . 321, 395, 797, 8 V. Jones . . . 621, 2 V. Lewis . , . 938, 9, 940, 2 V. Lord Kensington . . 163 V. Lord Zouche 62, 53, 1013, 1123 V. Madocks . . 414, 6, 434 V. Matthews . . . 1053 Lewis V. McKee V. Morgan u Nangle V. Poole . i>. Rees PAQE . . 615 . 815 969, 973, 1008, 1076 . 999 . 533, 926 246 V. Tankerville . . . 164 v. Webber . . .887 Leys V. Price 221 Lichfield (Earl) v. Bond . . 902 Lickbarrow v. Mason 550, 579, 583, 610, 612, 658 Lidderdale v. Duke of Montrose . 199 Life Association of England . . 122 Life Association of Scotland v. Siddal .... 204, 694 Lifford's Case 706, 7 Lightfoot V. Keane . . . 633 LUford V. Powys-Keck . 412, 978, 980 Lincoln 1). Wright . . .18,21 Linda Flor 604 Linden, Exp 403 Lindenau v. Deshorough . . . 508 Lindon v. Sharp . . . 521, 538 Lindsay v. Gibbs . . . . 573 Lindsell v. Thacker . 1049, 1052, 3 Lingard r. Derby . . 187, 272, 294 V. Messiter . . . 452, 4 Lingen v. Simpson . . . . 616 Lingham v. Biggs . . 454, 520 Lingon v. Foley . . . . 271 Lintott, Exp. .... 874 Lippard v. Ricketts 323, 637, 867, 8 Lipscomb v. Lipscomb . 937, 957, 8 Lishman's Case . . . . 360 Lister v. Baxter .... 571 V. Payn . . . . 562, 5 - V. Tidd .... 770 V. Turner 315, 322, 526, 531, 1023 Listler v. Turner .... 322 Litchfield v. Ready . . . . 707 Little, Re 759 V. PhUpotts. . . . 630 Littledale, Exp., Be Pearse . . 694 Littler, Be 393 Littleton's Case . . 1036, 1049 Liverpool Borough Bank i). Turner 454, 564 (Comoration of) Exp. . 1160 Marine Co. v. Wilson 563, 574 Liversidge v. Broadbent . . . 484 Livesey v. Harding . 130, 730, 770 1). Livesey . . . . 277 Living, Exp. . . . 396, 695 Llofft V. Dennis . . . . 227 Lloyd & Co., Re . . . .399 Lloyd, Exp. . . . 313, 384, 390 !'. Attwood 312, 3, 4, 530, 1, 784, 814, 820, 861, 5 V. Banks V. Cheetham V. Davies V. Douglas V. Guibert . V. Hatchett V. Heathcote V. Johnes . V. Jones V, Lander. 765, 772, 3 . 199 . . 49 . 1092 . 568, 571 . 873 . . 666 . 1011 . . 1107 1006, 1010 Digitized by Microsoft® Ixiv TABLE OF CASES. PAGE Lloyd «. Lloyd . . . 328, 716 V. Mansell . . . 1025 V. Mason 73, 5, 142, 626, 8, 723 V. Sigonmey . . . 653 V. Solicitors, &c.. Life As- surance . . . 209 v. Thnrsby . . .970 V. "Wait . . 1076, 1100 V. Whittey . 321, 1000, 1023 Lochiel . . . 567, 8, 9, 571 Look V. Lomas . . . . 733 Locke V. Foot . . . . 33 V. Lomas .... 1016 Ldckett V. Cary . . . . 632 Lockhart v. Hardy 289, 723, 7, 878, 942, 5, 1027, 9, 1049 1129 . 259, 915, 928 579, 583, 591, 993 215 492 53, 65 431 880 . 796, 1113 186, 978, 987, 8, 9 . 1072 . 432, 540 731, 798, 1012, 1110 946, 9 879 294 617 214 — ;- V. Eeilly Locking v. Parker . Lockwood V. Ewer V. Salter Loder's Case . Lodge V. Lyseley Loeschman v. Machin Loftns V. Smith V. Swift . Lomas v. y/'iisbt Lomax v. Bird . ■ : ■». Buxton - — V, Hide . V. Lomax Londesborough (Lord) v. Mowatt. V. Somer- ville London and Birmingham, &c.. Bank, Me . Chartered Bank of Aus- tralia i;. Lemjpriere. . Chartered Bank of Aus- tralia V. White 596, 870, 1107 • ■ Cotton Co. . . : 121 and County Bank, Uxp.535, 542 and Devon Biscuit Co. . 122 Discount Co. v. Drake . 441 Financial Co. v. "Wtex^ ham, &c., Co. . ; — — & Indisputable, &o. Co. . ^ — Joint Stock Bank v. Mayor of London . . (Mayor of) i). Cox . Monetary, &c., Society r. Brown . . . . &ProTinoialBk.'M. Bogle 85,215 andWestminsterLoanCo. V. Chase . . . . and 'Westminster, &c., Co. V. Drake Lonegan v. Stourton . . . Long V. Clopton . . . 65f 369 509 163 163 321 477 V. Harris ■!). Long V. Short V. Storie Longbottom v. Berry Longmate v. Ledger . 441 . . 780 . 656, 1042 . . 1095 . 287, 8 . . 962 62, 344, 732, 804, 993 439, 441 . . 896 Longstafft). Meagoe . . . 441, 2 Longuet v. Scawen 6, 24, 26, 6, 325, 942, 1005, 1018, 1074 Lonsdale (Earl) v. Church . . 872 Loomes v. Stothord- . . . 420 Loosemore v. Knapman Lord Clanoarty v. Latouohe Cochrane . Leigh V. Lord Asbburton V. Colvin V. Jeffkina . V. 'Wightwiok. Louisa Beruia Lovell V. Newton . Lovell's case Lovegrove v. Cooper Lovejoyi). Mulkern Loveridge v. Cooper Levering, Sn^.. . 127; Lovick V. Crowder . Lowe V. Blakemore V. Morgan Lowe's Settlement Lowenthal, £xp. . Lowndes v. Davies Lows V. Telford Lowther'iJ. Cai-lton Lowthian v. Hasel Loyd, Sxp. . Lubbock, JExp. Lucan v. Mertins . 05 Lucas, Exp. . V. Commerford V, Dennison V. Dorrion V. Peacock . . 028, ' V. Seale . Lucena v. Crawford Luckes, Hxp. Luckin v. Hambyn. Lucraft v. Hite . Lucy V. Gardener . Ludlow V. Grayall Luke V. Brutton V. South Kensington, &c. Lunn V. Thornton . Lush V. Wilkinson Lushington v. Price v. Sewell Lutkins v. Leigh . Luttono). Rodd . Lutwich V, Att. Gen. Lyall 1). Hicks . Lyddon v. Lyddon . V. Moss . Lyde v. Minor p. Mynn . . 413, Lyne v. Thompson . V. Willis . Lyon V. Chandos . V. Colville . . 187; Lysaght v. Edwards (Lessee of) v. WaiTen V. Westraacott Lyster v. Dolland V. Burroughs Mabbs V. Feldman Maber v. Massias Macartney v. Graham Macaulay v. Phillii)s . , Macclesiield v. Davis PAGE . 964 . 870 . 570, 7 62 457, 628 . 893 . 951, 6 . 604 . 217 43, 1078 39 . 1062 . 765 452, 4, 7 . 521 . 380 1005, 1014 . 905 . 478 . 681 . 723 . 763 810, 811 441, 1138 . 395 , 728, 796 455, 766 . 319 . • 935 597 , 636, 769 . 993 . 608 . 538, 9 . 478 . 749 . 971 . 421 . 1127 Co. 1004 432, 3, 4 . 618 . 701 . 969 . 942 . 885 . 1017 . 569 . 269 . 896, 7 . 413 414, 436 . 423, 4 . 995, 6 266 193, 960 . 1060 662 . 1091 61 . 413 537 488 748 204 850 Digitized by Microsoft® TABLE OF CASES. Ixv PAGE Macclesaeld(Earl) ii.Fitton 654,875, 1008 McCormiok v. Parry . . . 357 McCrcight v. Foster . . . 394 Macdonald v.Irvine . . . 1048 V. Walker . . . 254 Macdona v. Swiney . . . 517 Maodoiigall v. Jersey . . . 354 Mace V. Cadell . . . 445, 452 MoGowan v. Smith . . . 482 McGregor, Exp 391 McHattie, Exp 477 Machell v. Clarke . . . . 328 MaoHenryi). Davies . . . 212 Mcintosh V. Gt. Western Kail. . 879 Macintyre v. Connell ... 82 Mackay, Exp. . 395, 465, 497, 844 V. Commercial Bauk of New Brunswick . 356 V. Douglas . . . 522 Mackenzie v. Gordon . 645, 846 V. Eobinson . 41, 341, U'J2 V. Sligo and Shannon Kail. Co 73 McKewan v. Sanderson Mackie v. Mackie McKinell v. Robinson MoKinney's Estate Mackintosh r. Barber Mackloy v. Smith Mackreth v. Symmons 37: MacLao v. Sutherland McLarty v. Middleton McLean, Exp. 's Tr. ■ — — V. Fleming Maclean v. Dawson . Macleod r. Annesley V. Buchanan . McLeod V, Drummoud Maonee v. Gorst McNeill V. Cahill . Mackworth v. Marshall V. Thomas Macnolty v. Fitzherbert Maeoubrey v. Jones McQueen v. Farquhar . Macrae v. Ellerton . MoTurk, Exp. . Maddison v. I'ye . Maddock i: Eumball . Maddocks v. Wren Magdalena Steam Navigation Co. , 129 298 900 88 289 47 401, 2, 3, 4, 6, 410, 412, 764 . . 355 . 489 . 448, 543 . 1068 . . 603 . 1007 299, 300, 1017 . 769 280, 1, 283 . 551 . . 112 . 1010 . . 872 . 419 . . 277 763, 789 . 999, 1031 . 766 . . 975 . 591 . . 1113 lie Magnay v. Edwards . Maguire v. O'Reilly Mahon V. Dawson Maitland v. Irving Major r. Lansley Major V. Ward Makin v. Hughes Makings v. Makings Makins, Exp. Malaga Lead Co., Re Malcolm v. Charlesworth V. O'Callaghan . V. Scott Malins i'. Greenway Mallalieu c. Hodgson . 356, 7, 8, . 717 . . 142 . 998 . . 894 . 209 2411, 250, 533 . 201 . . 880 . 418 . . 362 89, 844 . . 1123 . 303, 484, 7 . . 415 . 129 PAGE . 995, 6, 998 . . 441 321, l-li, 995, 6, 8 790 . . 37 ■li 1163, 1164 . 386, 393 450 Mallock V. Galton Malmsley i>. Mi.'nc . Malone v. Geraghty Malpas V. Ackland Maltby v. Russell . Man, Sir T.'s case Manchester, &c., Ass. Co. &c., Co., E.rp, Bauk, Ei:p. V. Beech & Milford Kail. Co. Mangles v, Dixon Manifold, Re V. Morris Manlove v. Bale 243, 655, 728 Manners c. Furze Manning r. Burges . . r. GUI . V. Phelps . — — V. Spooner . Manuingford v. Toleinan . 41 Mannox v. Greener Manser v, Dix Mansfield (Earl) 17. Ogle Manson v. Baillie Mant V. Leith Manton v. Mooro Marcou v, Bloxham Marder v. Lee Mare v. Earle V. Lewis V. Sandford . V. Warner . Mar^ave v. Le Hooko Mananna .... Marine Mansions Compauy, L Marjoribanks v. Hoveudon . Marks v. Feldman . Markwick r. Hardingham . Marlow v. Orgill . V. Smith Marples v. Hartley Marriage v. Royal, &c., Co. 79 62:i 1126 658 754 244 6, 1111 1122 886 521 905 958, y 823, 844 954 257 75 634 300, 416 426 831, 7 162 129 641 120 129 831 752 360, 7, 473 110, 784 . 534 . 935 . 520 . 1049 154, 472 . 430 Man'iott v. Anchor Reversionary Co. . 252, 563, 1115 V. Edwards . . . 713 V. Kirkham . . . 1015 Marrow, Re . . . . 760 MaiTyat v. Marryat . . . 736 Marsack v. Reeves . . . 891 Marseilles Extension Kail. Co., Re 356 Marsh, hxp. . . . 313, 1138 ■ V. Fawcett . . . . 346 V. Keith . . .275 V. Lee . . 814, 7, 8, 861 ■ V. Marsh . . . . 296 V. Peacocke . . 200, 774 Marshall, Exp 1050 r. Cave . ... 746 • ■ V. Crowther. . .880 V. HoUoway . . . 943 V. Lamb . . . 536 V. Lloyd . . . . 442 r. M'Aravey. . 187,399, 1031, 5 i: Shrewsbury . 322, 1099 Marson v. Cox . . . 1063, 7 Marston v. Downes , . . 109S Digitized by Microsoft® Ixvi TABLE OP CASES. PAGE PAUE Martin, Exp. . . . 394 Maundrell v. Maundrell 764, 824, Demandant . . 798 859, 862 V. Cotter . . . 777 Maxfield v. Burton . 376, 418, 783, 5, V. Laverton . . 1052 844, 856, 860, 861 V. London, Chatham, and Maxwell's Trasts . 888 Dover Eail. Co. . 370 Maxwell v. Hyslop . . . 938 V. Martin . 119, 165 11. Maxwell . . 938 V. Mitchell . 1082, 3 V. Montacuto . 18 V. Mowlin 930, 1048 • V. Wettenhall . 873 v. Perdhard . . 517 1) Wightwick . . 733 V. Eeid . 579, 582, 3 May, Be ... . . 394 V. Eoe . . 439 ■ — V. Bennett . 297 — ~ V. Seamore . 532 — 11. Chapman . 776 V. Sedgwick . 765, 7, 775, 1160 — 11. Harvey . 1079 V. Smith . . . 57 — V. Roper . 203 V. West of England, &c.. Mayd v. Field . 214 Co. . . . 505 Mayer v. Murray . 1102, 1114 Martindale v. Booth . . 426, 9 Mayhew -v. Crickett . 1127, 1131 V. Smith . . 610 Mayor, JUxp. . . 522 Martinez v. Cooper . 854, 6 Mayou, Sxp. . 520 Martini v. Coles . 547, 585 McArthur ii. Seaforth . 592 Martyn v. Blake . . 871 M'Bumie Trusts 522, 545 Mary Ann . . 567, 9 , 670, 605, 6 M'Carogher v. Whieldon . 255 Maskell v. PaiTington . . . 953, 4 M'Carthyi;. Goold . 199 Mason, He . . 297 V. LlandaiT . 870 V. Bogg . . 399, 987, 1029 M'Cluney v. Lemon . . 442 — '— V. Broadbent . . 907 M'Comb V. . . 1098 V. Eiddle . 162, 4 M 'Combie ii. Davies . 547, 580 r. Morley . . . 316 M 'Cormick v. Parry . 357 V. Sainsbury . . 617 M'Cullock V. Gregory . . 191 V. Taylor . . . 627 M 'Curdy v. Chichester . . 349 V. "Wood . 461, 479 M'Donuell v. Walshe . . 1103 Massey's Estate . . 950 M'Donough v. Shewbridge . 992 Massey, Exp. . 488 M'Dowall V. Boyd . 1158 V. Johnson. . 21, 1100 Mead v. Hide . 948 i>. Sladen . 252 11. Lord Orrery . 283,1122 V. Travers . . . 530 . Meaden v. Sea-ley . 321, 746, 1119 Massy v. Batwell . 1017 Meadows, ifc . . . . 752 Masters v. Masters . . . 984 V. Meadows . 1083 Mather v. Eraser 437, 9, 440, 1, Meares, lie . . 220 466,7 Mears ■». Best 995, 1000 11. Lay . . 448 . Medley v. Horton 209, 649 V. Norton . 289 Meek v. Baylis* . . 8 3, 322, 665 V. Thomas . . . 1047 Meeker ». Tanton . 1005 Mathevv v. Brise . . 916 Meer's (Sir Thomas) Case . 869 Mathews, Exp. . . 543 Meggisou V. Poster 315, 530 V. Feaver . 2 37, 516, 545 Meggott 11. Mills . . 427 Mathias v. Mathias . , . 416, 9 Meggy V. Imperial Discount C 0. . 455 Mathison v. Clark . 258, 9, 744 Megi'ath v. Gray . . 1136 Matson v. Dennis 1024, 1039 Melbourne (Bank of) v. Broug] lam 393 V. Swift . 1088 V. Cottre 11 . 201 Matterson v. Elderfield . . . 1063 Melland v. Gray . 752, 876 Mattheson v. Hardwicke . 969,970 Melling v. Kershaw . . 849 Matthew v. Bowler . 408 Hellish V. Brooks . . 362 906, 1141 w, Bride . . . 916 V. Vallins . 939 Matthews, Se . 517 Mellor V. Lees 24 Estate, He . . . 1032 V. Woods . . 3' >A, 2, 1023 V. Cartwright . 807 Mellor's Trust . . 215 V. Gabb . . 765, 770 Menetone v. Gibbons . . 567 1). Goodday. . 321 Menzies v. Lightfoot . . 826 V. Keble . . 876 Mercer, Be . 761, 1010 V. Paul . 277 Mercer v. Graves . . 630 V. Venables . . . 545 V. Peterson . 53' I, 540, 1, 2 V. Walwyn . 654, 5, 1117 Meredith v. Bowen . . 876 Matthey v. Wiseman . . 153 Merrywether v. Mellish . 631 Matthie v. Edwards . S !51, 731, 802 Merriman v. Bonner . . 797,9 Maud V. Trimingham . . 488 V. Ward . . 1133 Maugham v. Ridley . . 394 Mertins v. Jolliffe . . 763, 786 Maughan v, Sharpe . S 52, 426, 473 Messenger, Be . . . . 627 Digitized by Microsoft® TABLE OF CASES. Ixvii PAGE Messenger v. Clarke . . . 210 Messer v. Boyle . , . . 66 Messinger v. Andrews . . 955 Mestaer v. Gillespie . . 334, 573 Metoalf V. Bruin .... 1138 Metcalfe v. Archbishop of York 63, 321, 348, 413 V. Boote . V. Campion . V. Hutchinson V. Pulvertoft . V. Scholey . Metropolitan Bank v, Offord Counties _Co. Brown Metters v. Brown . Meux, Sxp. V. Bell . V. Howell . V. Jacobs ■!;.[ Smith . Meyer v. Dresser . Meyei-stein v. Barber Meyrick's Tr. Meyrick v. Laws Minhael v. Fripp . Michell V. Miohell 162 . 1114 271, 294, 945 . 1016 51 . 1011 441, 438, 9,-684 . . 250 . 855 . 766, 773 . 519 2, 466, 473 310, 5, 407, 807 . . 614,5 426, 580, 1, 2 . 757 . . 278 . 564 266, 7, 272, 945, 947 V, "Wilton . Michelraore v. Mudge Middlecombe v. Marlow Middledltch v. Ellis Middleton v. Lord Onslow V. Magnay V. Middleton V. Pollock Midland Banking Co. t Chambers . Counties EaU. Westcomb . Midleton (Lord) v. Eliot Mildmay v. Methuen . V. Quicke . Mildred v. Austin Miles, Be . . . V. Durnford V. Gorton V. Langloy V. Williams . Milfield, He Mill V. Hill . Millar v. Horton . Millard v. Hai-vey . V. Magor Miller's Case . Miller, Hxp. V. Cook V. Huddlostone V. MiUer .. V. Mynn V. Race V. Williams . Millett V. Davey . Milliken v. Kidd Mills V. Bank V. Borthwick V. Ca|)el 297 206 519 643 129 403, 421 980 514 1136 Co. 760 731, 749, 760, 885 879 640 1013, 1077 300 284 608 778 97 189 112, 113, 421 187 421 702 1163 389 I, 890, 4 296 928 155 685 97 1110 503 273 926 926 249 Digitized by Microsoft® MUls V. Drewitt V. Fowkes V. Jennings PAGE . 297 113, 4 331, 1, 7, 810, 1016, 1074 . . 729 . 270 481, 5, 643 . 951, 8, 9 V. Oddy Milltown V. French Miln 11. Walton . Milues V. Slater Miltown V. Trimbleston . . 760 Milwai'd V. Moore . . . . 290 Minchin's Estate . . . 757 Miner v. Baldwin . . . . 297 Minister ». Price . . . 470, 2 Minn v. Stant . ... 1073 Minot V. Eaton . . . 210, 1019 Minshall v. Lloyd . . . . 429 Muiton, Exp 130 V. Kirwood . . . 233 Mirehouse v. Scaife . 952, 3, 961, 2 Misa V. Currie . . . . 597 Mitoalfe v. Hanson . . . 511 Mitchell r. Ede . . . . 486 V. Lee . . . .155 V. Scaife . . . . 602 Mitchell's Estate . . .340 Mitchelson v. Piper . . . 36 Mitcheson v. Oliver . . . 571 Mitford V. Featherstonchaugh . 869 V. Mitford 332, 772, 788, 1010 Moakes v. Nicholson . . . 611 Mocatta v. Murgatroyd 645, 1'J'i, 800 V. Lindo . . . 274 Moet V. Pickering . . . . 640 Mofifett V. Bates .... 943 Mogg V. Baker . . . . 535 Mold V. Wheatcroft ... 727 Molesworth v. Bobbins . . 626, 847 Moller V. Young . . . .574 Molony v. Kennedy . . . 209 Mondey v. Mondey . , . 994 Money v. Jorden . . . .1157 Monk V. Pomfret . . . 1072 i>. Whittenbury . . . 649 Monkhouse v. Corporation of Bed- ford ... Monro, Exp. . Montagu, Exp. . Montague v. Biggs 1'. Eatcliffc . Montefiore v. Behrens V. Brown . Montesquieu v. Sandys Montgomerie 1). Bath . Montgomery v. Calland V. Donohoe Moody V. Matthews V. Spencer Moor V. Anglo-Italian Bank Moore, Be Exp. V. Culverhouse . V. Froud . V. Greg V. Jervis . V. M'Namara V. Mayhow W.Moore 209,212,939,1048,1104 V. Morris . . . , 210 321,874 . . 765 447, 464 . . 670 655, 869 . . 85 . 303 . . 894 1005, 1014 803, 1104, 7 57, 814 . . 244 . 634 361, 382, 400, 725 . 771 388, 450 88 . 634 . 319 484, 823 . 791 . 768 Ixviii TABLE OF CASES. Moore v. Painter V, Pen'y . V. Petchell . V. Eamsden V. Rowe — — V, Woolsey Moore's, &c., Co., Bxp. Moores v. Choat . Moreau v. Polley . Moreooelcw. Dickens . Moreland v. Eichardson Mores v. Conham- Moreton v. Holt Morewood v. N. Y. Rail. Co. PAGE 746, 7, 801, 1104, 6 . 321 V, South Yorkshire . 775 . 342,4 . 1093 . 506 439, 468 . 319 . 206 . 110, 2 . 727 685, 7, 8 . 76, 9 477 Rail. Co, V. Wilkes. Morgan, Sxp. . V. Burgess V. Higgins . V. Horseman . V. Jones . V. Mather V. Minet . • 11. Pike . —. — V. Sandys . V. Swansea, &o. rity V. Thomas Morland v. Cook V. Isaac . Morloy, Re . ■ V. Bird V. Bridges • ■ V. Elways . V. Hay . V. Morley . 473, 616 . . 521 389, 1045, 1051 . . . 136 . 1117 . . 536 . 357, 888 . 869 . . 1092 Autho- . 1070 . . 1048 . 787 . 504, 5, 8 . 880, 1060 . . '1038 732, 802 . . 931 609, 10 185, 191, 647, 727, 1016 Mornington ii. Keane . . . 415 11. Wellesley . . 632 Moronv v. O'Dea 305, 327, 740, 800, 2, 1107 Morrell v. Cowan . . . . 212 Morret v. Paske 655, 6, 810, 811, 815, 820, 1042, 3 ' V. Westeme . . . 1012 Morrice «. Bank, of England . 119 Morris v. Cajinan . . . . 456 V. Islip . 803, 1104, 1117 . r. Jones .... 97 r. Livie . . . . 419 V. Manesty . 83, 4, 5, 200 — — V. Robinson . . ... 576 Morrison v. Glover . . . 1064 V. Morrison . . 423, 4, 5 V. Parsons . . 572, 3, 4 Mors le Blanch v. Wilson . . 603 Morse v. Faulkner . . . 335 V. Tucker . . 186, 1 Mortimer v. Capper 11, Ireland , ■ V. McCallan Mortimore v. Commrs. of Inland Revenue V. Mortimore Morton, Exp. 11. Woods Mosloy K. Baker 94, 873 892 256 591 678 300 191 464, 688, 9, 690 1060, 1, 2 Moss, Sj-p. . Me . . V. Bainbridge . V. Gallimore . V, Salte Motion V, Moojen . Motteux V. St. Aubyn MountfOTdo). Scott Mountfbrt, JSkj;. Mouys V. ieake Mowbray, Exp. . Mower's Trusts, lie Moye V. Sparrow . Moylan, & . Muggeridge, Be . V. Stanton Muir V. Crawford V. Jolly . Mulhallen v. Marum . Mulkeni v. Lord Muller V. Moss . MuUet V. Green MuUiner v. Florence . Mumford v. Stohwasser PAOIC . 394 . . 751 . 871 681, 686, 709 . 708 1010, 1077 . 161 . 311, 784 . S'll, 3, 394 . 344, 688 767 983,9 354 127 167 417 1135 408 . 421, 1110 1057, 1064 . 448 . . 451 . 599, 607 372, 764, 777, 844, 861, 867 Munns v. Isle of Wight Rail. Co. 369, 410, 1 Munroe v. Watt . . . . 193 Mure, JSx}}. .... 496 Murphy v. Mead . . . . 746 V. Sterne . . .912 - V. Taylor .... 22 MuiTay, Ee .... 632 V. Bailee . . . . 211 1'. Mackenzie . . .478 V. Palmer . . . . 891 V. Piukott . . 616, 767 Murtagh v. Tisdall . . . 113 Muskerry, lie, Lord . . . 912, 919 Musket V. Cliffe . . . . 971 Mutlow V. Bigg . . . 906, 7 V. Mutlow . . . . 39, 40 Mutton, Exp 471 Mutual Loan Fund Association v. Sudlow . ... . . 1131 Mycock V. Beatson . . .616 Myers v. Edge . ... 1138 V. Perigal . . . ■ 339, 340 •^ V. United Guarantee, &c., Co. . . .. 482, 618 Myun v. JoUfe . . ; . 560 Naden, Exp. . 511 Nagle V. Baylor . ■ . 775 Nail V. Punter . . 214 Nairn v. Majoribanks . . . 419 . V. Prowse . 404, 5, 412 Nanny v. Edwards . 1025 Napier v. Effingham . . 996,7 Nash, He . . . . . 1161 V, Bryant . 40 V. Preston . . . 32 !). Worcester, &c., Commrs. 411 Natal Investment Co., Me . 363. 365 National Bank of Australasia v. United, &o., Co. . 252, 7, 1100, 2, 4 Digitized by Microsoft® TABLE OF CASES. Ixix National Bank, llr. I'AfiR 357, 813 Newry Rail. Co. 'o. Moss PAGE . 319, 1159, Insurance Co. . 790 1160 Mercantile I3k. v. Hamp- Newsham i\ Gray . . . 1099 son . 430 Newsom c. Thornton . . .047, .585 Permanent, &c., Build- Newstcad v. Searles . . 530 ing Society, JJc . . 354,8 Newton, Exp. . . 771 Provincial, &o., Soci rty 1163 V. Askew . . . 85 Native Iron Ore Co., Re, . 368 V. Beck . 866 Navulshaw v. Brownrigg . 552 ■ r. Bennett . . 290 Nayler m. Wetherell . 414 V. Conynghani (L ord) . 143 Naylor v. Mangles . 600 V. Chorlton . . 1128 Neal, Exp. . 511 — — V. Egmont . 1006,1014, 5 r. Att.-Gen. . 874 V. G. J. R. Co. . 58, 143, ICli Neale v. Day .... . 525 V. Xewton 844, S(M Neame v. Moorsom . 651 Nicholls i'. How . 173, 859 Neate v. Duke of Marlborough . 52, 3 v. Le Feuvro . 601, 8, lilO 61,95, V. Maynard . . 883 V. Latimer . . 730 V. Rosewarne . . . 82,83 Neath & Brecon Rail. Co., Re. . 410 Nichols v. Nichols . 587 Needham v. Johnson . . 475 Nicholson v. Cooper . 472, 3, 8 V. Smith . 414 — V. Di-ury, &c., Co. . 217 Needier v. Deeble . 1012, 1115, 6 V. Hooper . . 657, 1073 Neesom v. Clarkson . 402 , 421, 747, v. Revill . 622, 1135 102, 1104 V. Tutiu . 743, 4 Neeves v. Bixrrage . 37 Nicolai Heimich . . . 604 Neill V. Morley . 1020 Niglitingale ». Lawson . 244 Neisli V. Graham . 603 Noel V. Bewley . 334, 919 Nelson, Exp. . . 380 — — - r. Lord Henley . 949, 951, 968 Nelson ... 567 , 8, 9, 571 '('. Rochfort . . . 11 V. Booth . 213, 897, 1043, 1104 r. Ward . . 851 v. London Assur. Co. . 456,774 Noke V, Darby . . 948 V. Page . . 938 Nokes V. Fish . . 240 Nelthorpe v. Holgate . 778 Norbury v. Norbuiy . . 299 Nepoter .... . 614 Norcutt V. Dodd 516, 8 Neptune . 604 Norfolk Rail. Co. v. M'Namara . (W4 Nesbitt V. Berridge . 505, 511 Norris v. Caledonian Insui . Co. . 512, v. Tredennick . . 243 018, 703 Ness, Et^ 99, 145 v. Lord Dudley Stuart . . 7y2 Nether Stowe Vicarage . . 1160 1). Wilkinson . . 311, 2 Nettleship, Exp. Neve 1). Flood . 313 V. Williams . . 594 . 107 V. Wright 219, 299 V. Pennell . . 88 , 835, 841 North v. Gumey . . 457, 603 Newbery, Exp. . 439 ■ British lusur. Co. c. HoUett 501, Newberry v. Colvin . . 602 773, 5 Newbury v. Marten . 996, 8 Star . 568, 9, 604 Newby v. Cooper . 812 D. Wakefield . . 622, 1135 Newcastle (Corporation of) v. A tt- V. West Bank, Exp. . 465, 472 Gen . 529 Northcliife v. Warburton 7r> New Clydaoh, &c., Co., ife . 361 Northern Assam Tea Co. . 356, 363 Newcomb v. Bonham . 16, 27, 28 Northwick, Exp. . 420 V. Burdon . 417 Norton, Exp. . . 535, 541, 3 New Eagle .... . 605 t\ Cooper . . 796, 1110 New Globe Patent Co., Re. . 368 V. Florence, &c., Co. . . 361 New Hamburgh, &o., Co. . . 499 V. Pritchard . 349 Newenham v. Pemberton 204, 5 Norwich, Dean and Chapter of, Newland v. Watkin . . 344 case . . 343 Newlands v. Paynter . 65 , 138, 209 Yam Co, ifc . . . 368 ' Newling v. Abbott . 420 Notara v. Henderson . . 575, 6 Newman v. Anling . 871 Nottley V. Palmer . Nouaiile v. Greenwood . . 270 V. Baker . 746 . 329 Newman v. Cai-dinal . 468 Novosielski v. Wakefield . . 1025 V. Franco . 902 Nowell, Re S3 V. Payne . . 896 V. Bewley . . . 334 V. Rook . 157 Noy V. Ellis . 1036 V. Selfe . . 1000 Noyes v. Crawley . . . 928 V. Wilson 205, 961 Noys D. Mordaunt . 1037, 1048 Newmarch, JBc . . 9 38, 9, 940 Nugent V. Gifford . . 280, 1, 3 Newnhan v. Stevenson . 165 Nunn, Exrp. . 389 Newport's Case 530, 659 V. Lomer . . 146 Digitized by Microsoft® Ixx TABLE OF CASES. Nunn V. Wilsmore Nuova Loanese Nymph . Nyssen v. Gretton Oakeley v. Pasheller Oakes, Uxp. Oakley ■;;. Rigby . Obee V. Bishop O'Brien, lie -V. Goold . V. Lewis - — - V. Mahon . Ocean O'Connell v. Cummins V. O'Oallaghan Ookenden, Exp. Ockleston v. Heap Oddie V. Brown O'Dea V. O'Dea . Odell, Exp. . Odes V. Woodward O'Donohue O'Donel v. Browne O'FaUon v. Dillon . Ogden V. Battama . Ogg V. Shuter . Ogilvie V. Me V, Jeaffreson 582, PAGE 514 571,7 607 965 1133 315 902 906 477 51 628 1103 604, 5 325 1102 3,595 254 974 631 464 165 1063 871 . 47, 52 2, 744, 1111 . 635 . . 72 323, 659, 780, 864 . . 383 . 1047 . . 627 62 . . 732 . 271 . 907, 917 . 997 . . 1141 . 65, 129 . . 1048 ■161, 3, 4 . 571 . 517, 525 760, 798 . . 978 21, Ogle, Exp. V. IKnipe V. Storey O'Gormon v. Comyn Ohrly V. Jenkins . Okeden v. Okedeu O'Kelly «. Bodkin . Oldaker v. Retford Oldroyd v. Crampton Oliver, Essp. 11. Oliver . Woodroft'e Olivier OUiver v. King Ommaney, Exp, . O'Neal V. Mead ^ Only V. Walker . Onslow's Trusts, Me . . . 84 Onslow V. Currie .... 242 Onward 677 Oppenheim v. Russell . . 601, 610 Orby V. Trigg .... 20 Ord V. Noel .... 251 V. Smith . . . 929, 930 V. White .... 485 Orde V. Heming . . . 326, 931 O'Reilly v. Fetherstone . . 243 Orelia 568 Orford (Earl of) i>, Albemarle . 286 Oi-iental 667 Bank Co. v. Coleman . 538 Commercial Bank . , 399 Financial Corp. v. Over- end . . . 643, 1133 Hotels Co., /Je . . . 1031 Orlebar i: Fletcher . . .123 Orme v. Wright 252 PAGE Ormiston, Exp 386 O'Rorke v. Bolingbroko . . . 890, 4 Orr V. Dicldnson . . . 561 Orrett, Exp 317 Ortigosa v. Brown . . . 860 Osborn's Mortgage . . . . 755 Osbom V. Lea .... 848 Osborne, Exp. . . . . 1063 V. Foreman '. . . 1074 V. Osborne . . . 705 to Eowlett . . . 248, 256 Osbourn v. Fallows . . . 1073 Osgood V. Strode . ... 530 Osmanli .... 567, 8, 9 Ossulston (Lord) v. Lord Yarmouth 869 Oswald v. Thompson . . 519, 521 Oswiok V. Plumer Otter V. Lord Vaux Ottley V. Gray Otway V. Otway . Ouohterlony v. Gibson Oulds V. Sansom Ouseley v. Anstruther Owen v. Bodv V. Dickenson V. Griffith . V. Homan V. Henshaw V. Knight V. Nickson V. Owen V. Williams Oxenham r. Ellis . . . . V. Esdaile . Oxford, Chancellor, &c., of . . (Earl of) V. Albemarle (Lord) . . . 286, 7 (Earl) V. Rodney . . . 966, 7 &c., Hall Co., Be . 399, 987, 1027 & Worcester, &c. Bail. Co., Me . . . 625 Oxwick V. Plumer . 230, 335, 779 779 257, 645 . 504, 512 . 268 . . 150 . 161 . 417, 960 . 524 . . 211 48 642, 1135 . 638 . . 854 . 730 227, 529, 822 . 242 . . 1112 . 403 173 Pacific Pack V. Tarpley Packer v. Wyndham Packington v. Barrow Packman, Me Paddon v. Bartlett Page, Me V. Adam , . v. Broom . 303, V. Cooper . V. Linwood V. Newman Paget V. Anglesea 1). Ede 1). Foley V. Hurst . V. Perchard Pain 1). Smith Paine, Exp. . V. Edwards Palk V. Lord Clinton 288, Palmer 1). Bate . V. Earl of Carlisle . 604, 7 . 346 . lOJO ■ . 1072 1050, 1, 2 . 663 . 1063 . 286, 9 846, 869, 875 . 286 875, 1108 . 878 . 888 . 1034 905, 6, 7 . 949 . 517 . 321 . 999 . 699 1006, 1096, 6 199, 200 1005, 1014 Digitized by Microsoft® TABLE OF CASES. 1x3. i Palmer v. Graves . V. Hendrie .72 V. Jackson V. Leycester V. Wheeler V. "Wright . Palmes v. Danby Panama . Panama, &c., Mall Co. Pannell, Exp. . V. Hurley Paragon Co., lie Pardoe v. Price . Pares, Se Pargeter v. HaiTLS Piirk V. Applebee . Parke, &:jj. Parker, Ite V. Alcock V. Bingham V. Blythraore V. Buruey . V. Butcher V. Carter . V. Clarke. — — ■ V. Dee V. Dunn . V. Fearnley V. Fuller. V. Harrey . V. HiUs . V. Housefield v. Marchant V. MorreE . V. Pistor . V. Eamsbottom V. R0II3 . V. Watkins Parkes, Exp. v. Bott V. White Parkinson v. Chambers V. Hanbury 249, Parmeter v. Todhunter Parnell v. Tyler . . . . 257 PaiT, Hxp 385, 493 1). Eliason . . .530 Parrott v. Sweetland . . . 408 Parry v. Ashley . . . . 425 V. Great Ship Co. . 23, 726 V. Jones . . . . 50 V. Wright . . . 645, 653 Parsons v. Freeman . . . 964 V. Groome . . . 769 V. Hind . . . . 439 V. Middleton . . .679 V. Spooner . . . . 751 P.art, Exp 171 Parteriche v. Powlet . . . 972 Partington v. Woodcock . . 711 Partridge v. Bank of England . 485 V. Bere . 397, 681, 2, 686 V. Foster. . , 65, 6, 70 Pasley v. Freeman . . . 848 Patch, Sxp 774 V. Ward . . . 1017, 1028 r. Wild .... 1105 Patent Bread Machinery Co., He 368 PAGE 954 7,742, 3, 1027 . 930 . 871, 954 . 288 . . 1120 . 1078, 1080 . . 570 Me 358, 9, 364, 6, 7, 866 . 387, 393 . 1010 . . 84 1124, 1141 . . 220 083, 719 . . 583 . 689 . . 392 . 902 . . 119 . 863 . . 757 796, 1061 . . 533 659, 864 . . 37 . 1123 . . 955 . 1011 . . 414 . 1082 321, 2, 1023 . 952, 9 . . 877 . 139 . . 870 . 641 . 797, 1031 . 405 . . 503 . 210 . . 1098 253, 8, 1102 . 568 PAGE Patent File Co., i& . 353, 362 Paterson v. Scott . . 944, 978, 980 V. Tash . . 547 Pattinson, Ite . . . 753 Patton V. Randall . 290 Paul V. Birch . . 599, 602 V. Dudley . . 648 Pauncefort's case . . . 521 Pawlctt, Exp. . 219, 301 ■ V. Att.-Gen. . 32, 1017 Payne, JExp. 333, 468, 473, 6 V. Conipton 854, 863, 1009, 1013 V. Edwards . 699, 1034 V. Mortimer . . 530 Paynter 11. Carew . . 698, 7112 Peace v. Haius . . 1156 Peacock, Exp. . 383, 623 V. Burt 5 7:J, 763, 4, 794, 818 V. Evans . 895 V. Monk . . . 210 V. Peacock . 958, 959 Peacocke v. Pares . . . 277 Peake, Exp. . 383, 404 V. Gibbon . 799, 1010 V. Ledger. . 1016 Peakraan r. Harrison . . 129 Pearco v. Morris . 1033, 1079, 1097 1). Newlyn . 790 V. Watkins . . . 801 Pearl v. Deacon . . 1131 Pearman v. Twisa . . . 961 Pears v. Ceeley . . 797 V. Laing . . 919 V. Weightman . . 649 Pearae, Exp. . . . 316 Ec . . 456 IJ.- Green . . 877 Pearson, Exp. . . 534, 5 Me . . . 523 V. Amicable Office . . 512 V. Benson . . 751, 897 V. Helliwell . . 298 Peart v. Universal, &c. Co. . . 148 Peatfield v. Barlow . 634 Peck V. Transmaran Co . . 366 Pease, Exp. . 316, 7 .V. Fletcher . . . 1118 V. Gloahec . 612 V. Hirst . . 1138 V. Jackson 827, 860, 1063 V. Wells . 162, 3 Pedder, E;xyi. . 389, 392 Peek V. Larsen . . 602 Peele, Exp. . . . 1162 Peering v. Trail . 956 Peers v. Baldwyn . . . 872 V. Sneyd' . . • . 875 Pegg V. Wisden . . 22 Pell V. De Wiuton . 591, 1040 V. Northampton, Sec, Co. . 411 V. Stevens . . 734 Pellas V. Neptune, &c., Co. . . 494 Pellat V. EUis . . 888 Pelly V. Wathen 627, 632, 747, 796, 837, 838, 847, 1092 Pemberton v. Oakes . 1133, 8 Pembrooke v. Friend . 938, 9 Digitized by Microsoft® Ixxii TABLE OF CASES. Pendlebury v. Walker . PARE . . 129 Pendleton v. Rooth . . 935 Penfold, Hxp. . . 395, 6 Penhall v. Elwin . . 523 Peninsular, &o., Co. . . 122 Pennaht v. Simpson . 422 I'cnnell v. Attenborough . 588 V. Dawson 521, 540 v. Dysart . . . 851 V. Fox . . 451 V. Millar . . . 605 . V. Eeynolds . . 540 V. Stephens . 398 Peimer v. Jemmet 779, 853 Penny v. Pretor . 758 V. Picton . . 188 V. Watts . 781 Penrhyn (Lord) ?•. Hughes 745 , 879, 883 Pentland v. Stokes . . Ill Perdew v. Jackson . 206 Perfect, Exp . 490 Perkin v. Stafford . 1014 Perkins, Beach, &c., Co. . 121 V. Bradley 784, 801 V. Cooke . 297 V. Deptford Pier Co. 359, 847, 1141, 2 — — V. Plympton . 137 V. Priohard . . 1142 V. Walker.. , . . 41 Perkyns v. Baynton . . 967, 9 Perla .... . 604, 5 Perrin, Re . . . 100 Perry, Exp. . ■ . . 310 V. Barker 992, 1027 — V. HoU . . 784, 5 — — V. Marston . 29, 930 V. Meddowcroft . 21, 9 : V. Phelps . 119, 417 r. Walker . . ] 103, 1113 Perry-Herrick v. Attwood 427 530, 854 Persse v. Persse . . 529 Peruvian Eys. Co. v. Thames, & c. Co . 354 Fetch v. Tntin . 433 Peter v. McoUs , . '. . 532 V. Russell . 853, 5 Peto V. Hammond 321, 787, 857, 1009 Petty V. Cooke 1132, 3 • V. Styward . 1038 Peynall, Exp. . 442 Peyton I). Ayliffe 42 Phayre v. Perec . 416 Phelps V. Prothero (Lord) . . 781 Phene v. Gillan . 241, 734, 796, 1159 Philby V. Hazle .... 896 Phillips, Exp. . . . 221, 660 He. . . . . 760 V. Commissioners of In- land Revenue . . 664 V. Davies . . 733, 801 V. Dickson . . 1128, 9 V. Eastwood . . 512 V. Evans . 730 V. Gibbs . . . 163 V. GutteridgB 296, 646, 1000 V. Hele . . 34, 1076 V. Huth . . . 548 V. Munnings . . 906 PAGE Phillips V. Parry . . . . 958 V. Phillips 233, 271, 296, 863, 5, 928, 947 V. Prichard . . . 482 V. Redhill . . . . 789 V. Robinson . , . 863 r. Rodie . . . . 603 V. Vaughan . . 655, 1042 Phillipson v. Gatty . . . 299 Philps V. Hornstedt . . .541 Phipps V. Bp. Bath & Wells . 1119 ,■!>. LordAngelsea . . 11 V. Lovegrove . . . 771, 3 Phoenix Bessemer Steel Co., Life Assurance Co Picard v. Hine . V. Mitchell . Pickard v. Bretz . V. Marriage V. Sears . Pickering v. Busk . 1!. Ilfracombe Rail V. Vowles . Piokstock V. Lyster Pierce v. Derry . V. Scott Pierpoint v. Gower V. Lord Choyney Pieve Superiore . . Piggln V. Cheetham ' Piggott, Me . . . V. Jefferson , V. Killick . Pigot V. Cubley V. Pigot . Pike V. Fitzgibbon . Pilbee v. Hopkins Pilcher v. Arden V. Rawlins Pile V. Pile ... PHkington v. Baker . V. Shaller Pirn V. Grazebrook • Pimm V. Insall Pinchard v. Fellows . Pinhorn v. Souster . Pinkerton v. Easton Pinkett v. Wright Pinnel's Case . Pinnock v. Harrison . Piper V. Piper Pitcher v. Rigby . V. Roberts . Pitt V. Lord Dacre V. Jackson V. Pelham . V. Pitt . 647, 9, 661 V. Reed ... V. Snowden. Place V. Fagg . Plant 1). Taylor . Plas-yn-Mhoys Coal Co. Flasket v. Beeby Plaskett V. Dillon . Piatt V. Bromage I'. Sprigg Playl'air v. Cooper He Co 196, 400 625 212 297 477 471,8 848 584,5 83, 361 242 520 58, 166 286 662 269 607 698, 7U1 771 194 161 583, 993 1084 999 700 640 861, 2, 6 370 796 241 718 191 1031 687, 690 637 616 1168 621 938 , 1116 143 907,9 414 290 , 1080 1080 1123 439 227, 822 121 996 62,3 432 1011 297, 880 751 Digitized by Microsoft® TABLE OF CASES. Ixxii PAGE PAGE Playfair v. Musgrove . . ^. 132 Powell >. Morgan , . 653 Playters v. Abbott . . .295 V. Eiley . 945,962 Pleasant v. Benson . . . . 245 V. Eoberts , . 801, 1159 Pledge V. Buss . . . 1128, 1131 V. Robins . 955 Plenty v. "West . . . . 962 V. Trotter . . 747,800,1110 Plowden v. Hyde . . . 1086 V. Wright . . 303, 1014, 5 Plucknet v. Kirk . . . . 3? Powell's Trust, Jie . . •. . 871 Plumb v. Fluitt 776, 9, 780, 2, 853, ."Se Power V. Power . 33, 938 Plummer, Be . . . 383, 4, 623 Powis V. Corbet . 810, 958 Plunket V. Penaon . . 38, 9, 51 Powles V. Hargroav.'s . . 386, 491,2 Pockley v. Pockley . . 942, 951 Powseley v. Blacknian . 684, 9 Pooock D. Fry . . . . 162 Prjedu. Gardiner . . . 1130 V. Lee' .... 972 V. Hull . ■ . 698 V. Pickering . . . 163 Prance ii..Svmpsou . 934 Polak «. Everett . . . .1130 Pratt V. Bull 76 Polk V. Clinton .... 1006 V. Vizard . . 627 Pollard, Ihep 395, 6 Prebble v. Boghurst . . 4U Pollexfen v. Moore . . 401, 411 Prees v. Coke . 1024, 6, 1U2 Pollock V. Pollock . . .888 Prendergast v. Devey . . 1132 Pomfret (Earl) v. Lord Windsor 763, 824 Prentice v. Loudon . . 1064 Ponsfol-d V. Hankey ... 22 Prescott, Exp. . . 492 Pontetw. Basingstoke Canal Co. 359, 364 V. Tyler . . . 1003 Poole Firebrick, &c., Co. . . 122 Preston v. Corporation Yarmouth of Great Poole, Exp 414 . 364 V. Adams . . . . 227 V. Lament . . 471 V. Coates . . . .1086 V. Neele 25, 504 V. Hobbs .... 163 1!. Preston . . 965, 6 «. Soady .... 1041 V. Tubbin . 791 V. Warren . . 709, 1125 V. Wilson . . . 1077 (Mayor of) v. Whitt 683, 712, Price, Exp. 391, 441, 2, 495, 501, 2, 3. 719, 720 767, 1047 Poole's Case 438 Be . 136, 154 Estate, Se . . .217 V. Bannister 482, 679 Pooley V. Bosanquet . . . 793 V. Barker . 022, 1135 V. Goodwin . 435, 484, 664 V. Berrington . . 801, 1020 Pope V. Bigrn . 396, 707, 712, 720 V. Onslow . . . . 831 V. Blakemore . 414, 7 V. Carter . . 164 V. Roots .... 892 V. Carver 321, 2, 930, 994, 995, 6, Popham V. Baldwin . . . 110 997, 8 Popple V. Prideaux . . .779 V. Copner . 925, 9, 930, 933 Porcher v. Wilson . . . 939, 943 V. Dewhurst . . . 754 Portalis v. Tetley ... 552 V. Edmonds 1130, 2 Port?r V. HubbHrt . . . 655, 875 V. Fastnedge . 811, 815 Portmore (Lord) v. Morris . . 18 • V. Great Western Rail. Co. Portsmouth (Earl of) v. Lord Ef- 357, 868 fingham 776 V. Groom . . 458 Postlethwaite v. Blythe . . . 729 V. Jenkins . . . 528 V. Lewthwaite . 244 • V. Lovett . 199, 482 Pothonier v. Dawson . . . 583 V. M'Betb . . 751, 803 Pott, £xp 317 V. North . . 954 V. Todhunter . . .529 v. Perrie . . .16, 20 Potter V. Commissioners of Inland V. Price 19, 195, 731, 750, 801, Eevenue . . .663 889, 1047, 1108 V. Edwards . . . . 871 V. Varney 48 V. Hyatt .... 635 V. Nicholson . . . 163 V. Williams . . . 1119 Price & Brown's Case . . 1160 Potteries, &c., Rail. Co. v. Minor 362, 9 Prichard v. Fellows . . 987 Jie . 362,9 V. Norria . 975 Pottinger, Ea^ 534 V. Wilson . . 252, 3 Potts 11. Curtis .... 893 Prichard's Claim . 155 V. Layton . . . . 36 Priddy v. Rose . 413,6,8,619 V. Warwick, &c., Co. 72, 362, Pride V. Bubb . . 210 365, 6 Priestley v. Hopwood . 1061, 3 Poulet (Earl) v. Hood . . . 1047 V. Pratt . 451 Powell, Mq>. . . 316, 395, 451 Prince Regent . . 570 Se 765 of Wales Assurance Co. v. V. Aiken . . . 1110 Harding . 358 II. Bartholomew . . . 12 of Wales, &c.; Co. v. Athe- ». Glover . . . 1043 nffium Soc . . . 357 Digitized by ^ /licrosoft® / Ixxiv. TABLE OP CASES. Princess Charlotte . Pringle'if. Glbak . ' ^- , ■ V. Hodgson Pnnting, &c., Co., Me Prior V. Peupraiie . Pritehard, jSxp. . r'.; V. Roberts '■ V. Wilson Probert v. Morgan . Procter v. Cobper V. Cowper . Proctor V. Nicholson ■^■^ V. Oates — — V. Warren Prpdgers v. Langham Prole V. Si lady . Propert, i?« . Pi'opert's Purchase Prosser v. Rice Provident Permanent Soc. &c., Soc. V, Pryce, Se . V. Bury Pryor v. Swaine . Pudsey's Case Pugh V. Jenkins . Pplhrook r. Richmond, &c., Co. Pnlteneyjj. Wnrren . , Pulvertoft V. Pulvertoft , . Purcell V. Blennerhassett > . Purdew v. Jackson Purdie v. Millctt . Purefoy v. Pnrefoy Putman, Uxp. Putnam v. Bates . Putten V. Purbeck . Pye V. Dauhnz . Pyke, Ea^^ . Pyle V. Partridge Pyni V. Bowreman . Pynoent ■!;, Pynoent PAGE . . 605 . 629 545 55, 126, 400 . 65, 334 . 447 Greenhill. . 252 . . 414 . 114, 763 871, 929, 1117 . 598 . 930, 6, 1099 . 525 . . 630 . 206, 1041 . . 240 . 765 . . 860 Building 1061 796 446 165, 306, 321, 2 . 162 642 902 694 . . 872 . 531 . . 934 204, 6, 1040 . 21, 734 831 643 921 46 332,3 900 665 1076 320 Quarman v. Williams . Quarrell r. Beckford . 769 736, 803, 1105, 1111, 1119 Queen (The) «. Chambers ' 395,797 V. Sadlers' Co. . 518 II. Shropshire, &c., Co. 823 Queiroz v. Tnieman . . 547, 585 Quenell 1). Turner . . . 944 Quincy, JSxp. . . . . 453 Quinhin's Trust . . . . 767 Eaby v. Ridehalgh . . . . 299 Rackham v. Siddall . . . 1061 Kadcliffr. Salmon. . . . 1090 KadQliffo, Se . . . 37, 659 V. Eocles. . .188, 758 Eaffety v. King . . . 926, 933 Raikes, Me 502 Railton V. Matthews . . . 1132 Railway Steel, &o., Co. . . 121, 6 Rainbow V. Juggins . . . 381 Rakestraw v. Brewer 242, 930, 2, 1034 Raleigh v. Atkinson . . . 654 PAGE Ralph V. Canick . . • 974. Eamsbottom, Exp 395, 6 V. Wallis 991, 1012, 1078, 1094, 5 Ramsdenv. Jackson . V. Langley V. Lupton - . RanclifFe v. Parkyns Rand v. Cartwright Randal v. Cockran . Randall v. Russell Ranken v. Alfaro . 1). E. & W. India Co. V. Harwood Rankin v. Potter Raphael v. Boehm . Rashdall v. Ford RatclifTi). Davis or Davies Ratcliife v. Barnard Ravald v. Ruasell Raveuhill v. Dansey Ravenscroft v. Frisby . Ravenshaw v. HoUier Rawbone's Trust Rawden v. Shndwell Rawe V. Chichester Sawlings V. Sewell . Rawlins v. Burgis Rawlinson i'. Moss . Rawson v. Eicke . Rayne v. Baker Rayner, Escp. V. Harford . Rayson v. Adcock Reader, Exp. . Rebecca' Redhead v. Welton . Redmayne v. Forster . Redshaw v, Newbold Recce's Estate Reece v. Taylor Reed, Exp. . V. Blades V. Freer V. Kilbnru V. Norris . . V. Royal Exchange, &c , Co. 608 V. Wilmot . . 429, 668, 677 V. Williams . . . 794 Reeks v. Postlethwaite . . 18, 934 Rees V. Englehack . . . 953 V. Keith 206, 768, 998, 1040 V. Metropolitan Board . 800 V; Parkinson . . 723, 1029 Reese River, &c., Co. v. Atwell . 526 Reeve v. Att.-Gen. . . . 1003 V. Hicks . . 933, 1084 V. Richer . . . 619, 1074 V. Whitmore . . 431, 464 Reeves v. Bajcer . . . 249 V. Brymer . . . . 1156 V. Capper . 426, 9, 680, 1, 2 V. Glastonbury Canal Co. 698, 701 V. Reeves . . . 63o V. White . , , . 1064 V, Whitmore , , , 464 120 798, 1071 . 476 . . 794 . 1078 . . 617 . 244 . . 482, 9 Dock . 370 37, 119, 133 . 617 . . 1108 . 365 579, 582, 583, 4, 5 . 779, 782 926, 933, 1079 . . 269 915 ' 303," 413, 5 . 455 898, 901, 2 . 242 . . 629 . 1086 . . 631, 2 . 709 . . 404 . 126 . . 483 . 231, 71t> . . 641 . 667 . 120, 164 . 321, 1009 . . 995 . 1099 63, 85 . 792 . 517, 521 731,792,796 . . 9 1043, 1136 Digitized by Microsoft® TABLE OF CASES. IxxT Regent's Canal Iron Works Co., Rt .... Ileg. V. Adams .... V. Arnold . . . . V, Bayley .... V. Burgate (Inh.) . . . — — V. Christian . . . V. Coleshill Overseers . . i- V. Commissioners of Excise . V. Cooper . . . . -v. Corbett . . . , . ^ V. General Cemetery Co. V. Laiie — -^ V. Lee (Inh. ) . . V. Lords Commissioners V. Powell . . . . V. Eobinsoh V. Salter . . . . 1). Tatlock. V. Trafford ' . . . . V. Ward .... V. Wilson . . . . Reid, Eoop. . V. Fairbanks . Eemmett v. Lawrence . Remnant v. Hood . Renfbrth v. Ironside . Kenvoize v. Cooper Keresby v. Newland . Revel «.' Watkinson Rex V. Bailey . V. Bell . V. Bingham V. Blunt V. Bridger . V, Bruce V. Burns V. Catherington (Inh.) V. Cotton V. Cracroft . V. Coombes . V. Delamotte V. Humphrey , V. Lambe .... V. Lord of Manor of Hendon V. Maberley . . , . V. Mallet .... V. Man V. Marsh .... V. Preston (Inh. of) . . V. Sadler's Co. . V. Sloper . . . . V. St. Michaels (Inli. of) V. Topping . . . . V. Tregoning V. AVells Reynal, Eiep Reynard v. Robinson . . . Reynolds, Erp V'. Bowley " V, Lewis Rpynoldson v. Perkins Rhodes v. Buckland . — — V. LordMAstyn V. Moxhay V. Rjldge Riccard v, Prichard Rice, JU V. Linsted • PAGE 363 X73 174 J73 291 fifi3 870 200 553 233 '367 180 439 887 446 . 1130 . . 1130 ■. 553 . . 1064 . 173 . . 234 244, 319, 856 . . 433 . 137, 521 . . 1034 . 818 1026, 1047* . 267 880, 1 . 181 . . 178 . 178 . . 179 . 521 . . 177 . 180 694, 729 . 175 . 179 . 180 43 175, 600 170, 7 235 177 . 177 . . 174 . 171 . . 675 . 518 . . 171 . 694 . . 175 . 176 . . 171 . 442 . . 535 393 449, 470 . 120 1011, 1026 . 252 . 50, 1121 . 987 944, 7, 8, 950, 952 . . 482, 4 . 624 , . 162,3 PARE Rice V. Rice .... 410, 841, 857 Richards, Exp. . , . . . 7:60 — &Cp.,"jJ«. . 126, 400 . V. Borrett . -. 317 — — '. V. Qooper . 321, 1011, 1075 . V. Jam.es . . Ill, 473 ■». Johnston . 139, 140 1). Lewis . . . . 529, 633 . V. Macclesfield . . 666 V. Morgan . . 741 -^— V. Patteson . . 1048 — '- . V. Platel . 631, 2, 779, 847 V. Richards . . 206 V. Symons 206, 595 — : — . V. Syms 28, 1157 Richardson, Re . . 91) — ■— V. Goss . 609, 610 V. Gre.avea . . . 156 V. Horton 191, 521 V. Jenkins . . 38, 190 V. M'Causland . . 408 V. Smallwood . . 622 V. Younge . 935 Riche V. Ashbury, &o , Co. . 353, a54 Riches v. Evans . .. 517 Richmond v. Tayleur . . 99ti V. White . 41, 196 Rickard v. Barrett . . 978, 980 Rickards v. Gledstanes 601, 773 V. Patterson . . . 74, 5 Rickets v. Ladley . 949 Rider v. Jones . 626, 9, 731, 802, 4 V. Wager . 951, 978 Ridgway v. Newstead . . 1113 V. Roberts . 421, 667 Ridley, Re . . 209 Ridout V. Dowding . . . 953 V. Earl Plymouth . 294, 1122 Riga ... . . . 605 Rigall V. Foster . . 804 Rigby, ife . . . J18 Rigden v. Vallier . 1038 Rigge V. Bowater . . . 1123 Right V. Bucknell 337, 716, 843, 853 Riley v. Croydon . 1079 Rimini v. Van Praagh . . . 128 Ringer v. Cann . . 246 Eippen v. triest . . . 1047 Risdon, Re . . 545 Riseley v. ftyle . . . 139 Rishton'c. GrisseU . 877 Rising V. Dolphin . . . 162 Rivers, Earl of, v. Derby, Earl - of • . . . . . . 272, 5 Robarts v. Bute . . 629 Robert v. Price . . 999 Roberts, Re ' . 868, 888 D.Ball' . . . 142 ■«. Croft 317, 854 V. DixaU . . . 288 V. Edwards . . - .503 V. Hughes . . -733 ■». Kytfyn 1056,. 1116 V. Walker . . 956, 7 V. Williams . 731,. 802 V. Wyatt . . 579, 582 Robertson v. Clarke . . 665 V. Fleming . . 641 V. Kensington 549, 550 /2 Digitized by Microsoft® IzxTi TABLE OF CASES. PAGE - PAGE Eotertson v. Liddell . . 637 Rogers v. Rogers . ■ 285 V. Lockie . . 249 ^!. Scale . . 863 V. Nonis . 252, 743, 5 Eoilton V. Matthews . . 1130 Eobey &' Co.'s "Wks. . . 489 Rolfe, Hxp. . . 382, 391 V. Oilier . . 483, 9 V. Chester . 811, 812 Eobina v. Goldingham . . . 631 V. Flower 383, 4, 1162 1). Hodgson . 1006 V. Perry . . 938 Robinson, JExjp. . 312, 6, 392, 394 RoUand v. Hnrt . 109 , 110, 4, 783 Be . . . . 628, 9 Rolleston v. Cope . 693 V. Bland . . 899 V. Morton . . 66 , 1013, 1076 1). Brigga . 470, 2, 789, 862 Rolt V. White . . 377 V. Biirbidge 81 Ronalds v. Feltham . . 952 V. Collingwood . . 462 Rooke V. Kensington . . 258 1). Cumming . 871 Rooperu. Harrison 371, r64, 818, 844 V. Davison . . 818 Roper V. Rice . 1063 V. Gee . 972 Rorke v. Dayrell . . . 171 — T^ V. Hedge 62, 6, 124 Rosoarrick v. Barton . 31, 1011 ■ V. Hedger . 53 Rose .... . . 562 V. Jago . . . 745 Exp. . . 775 V. Litton . ■ . 704 V. Haycock . . . 537 . V. London Hospital . 956 V. Page . 1011 V. Lowater . . 290 V. Watson ; 402, 616 V. MacdonneU 433, 516, 573, Rosevear, &o., Co. . 611 667 Rosewarne v. Billing . . 901 • V. Peace . . . 140 Rosher v. Williams . 529 V. Pennyman • . . 874 Ross V. Pope . . 150 V. Ridley . 140, 421 V. Willis . . 548 V. Robinsot . 300 Rossiter, Be . . . 939 1). Tonge . 50, 986 Rotherham v. Rotherham . 961 V. Walter , . 598 Eoublot V. BouteU . . . 478 V. Wood . . 82,140 Round V. Bell . . 906 V. Woodward 108, 114 Roundell v. Breary . . 414 Eobson V. Fligbt . . . 864 Routh V. Roublot . 478 V. E.einp . . 599 Row 11. Dawson . . . . 481 V. M'Oreigbt . 140, 509 V. Row .... 975 Rooh V. Oallen . . . 906, 8 Rowe V. Bant . . .52, 119 Boohard v. Fulton . . 764, 844 V. Wood . . 1101, 1110, 1119 Rochfort V. Battersby . 803 , 1010, 1077 V. Young . . . . 987 Rock V. Leighton . . . 120 Rowel V. Walley . . . 1082, 1094 Rocke, Exp. . 125 Rowland v. Sturgis . . . 1019 Rockley v. Wilkinson . . . 42 Rowley, Be .... 760 Roddami). Morley . 913 V. Adams . . . . 758, 9 Roddy, Be . . . . 989 V. Ridley . . . 1123 V. Williams . 23, 299 Rowntree v. Jacob 401 Rodger v. The Oomptoir d'Escompte Rowson V. Harrison . . . 939 de Paris . . 611, 2 , Roy, Exp 456 Rodgers, Mp. , . 383 Royal Arch. . . 567, 8, 9, 571 Rodnouse v. Mold . 961 , British Bank v. Turquand Rodiok V. GandeU . . . 482 354, 6 Rodney v. Rodney . ■ 195 Liverpool Friendly Society 1062 Roe 1}. Bradshaw . . . 478 Royds V. Royds .... 299 ■ ■». Jones 34 Rudge V. Richins . ... 724, 7 V. Mitton . . 531 Rudyerd's Trusts. . . . 1160 V. Soley . . 701, 836 RufRn, Ea^ 446 V. Wardle . . 701 Rufford V. Bishop 429, 451, 3, 4, 869 Rogers, Mip. . 307, 414 Rumball, v. Metropolitan Bank . 553 Be . . . . . 754 Rumbell, Exp. . . . . 386 Trusts . . 387 Rximmens v. Hare . . .309 V. CbaUis . . . 201 Rumsden v. Langley . . . 1071 V. Grazebrook 226, f 384, 5, 9, 737 Runcorn v. Nicholson . . . 1009 V. Holloway . . 83 Ruscombe v. Hare . 882, 3, 973, V. Hnmpbreys . 70£ , 9, 711, 712 1081 V. Kennay . 138, 432, 595, 608 Rusden v. Pope . . . 557, 573, 4 D. Kingston . 1). Mackenzie . 129 Rush, Be . . . . . 70 . . 174 Eushbropke v. Hood . , 662, 676 V. Marsh. . 190 V. Laurence . . 1037 V. Maule . 32, 33, 48, 1003 Rushforth v. Hadfield . 683, 596, 9 V. Mutton . 252 Rushworth's Case ... 242 V, Pitcher . . . 49 Russel V. Smithies . . . 746 Digitized by Microsoft® TABLE OF CASES. PAGE Bussell V. East Anglian Bail. Co. 361, 1:21, 2 V, Hammond . . . 519 V. M'Cullocli ... 63 V. Plaice . , • . 283, 293 D. Russell . . . 310 Eoad Purcliase Monies, Re . . . 110, 3, 859 Russell's Estate . . . . 759 , Policy Trusts, Re . 502, T72 Rust V. Cooper . . . . 534 Ryal V. R^al . . . .417 Ryall V. Rowles 446, 450, 452, 3, 495, 501, 579, 581, 853 Ryland v. Smith . . . 206, 545 Kyves v. Ryves .95, 8, 9, 472, 958, 9 Sabin ■». Heap Sabine 11. Barrell . Sablonifere Hotel Co. Sacker v. CMdley . Sackett v. Bassett SackviUe v. Smyth . Sadler ■;;. Bush . Saffery, Exp. . Saffron Walden Soo. v. Rayner Sagitary v. Hyde . Saint John v. Turner . V. Wareham Salacia Salaman v. Donovan Sale V. Kitson Salkeld v. .Johnston Salmon v. Dean . V. Matthews Saloway v. Striwhridge Salte V. Field . Saltmarshe v. Hewett . Salvin v. Weston . Samble v. Wilson Sambrooke v. Hanbury . Sampson v. Pattison . V. Seaton Rail. Co. Samuel v. Howarth V. Jones Samwell v. Wake Sanders, Exp. V. Benson V. Kentish V. Richards 249, 283, u Vanzeller Sanderson, Re . . ■ V. Bell . V. Westley 290 21, 29 122 457 870 939, 940 . 859 634, 541 773, 784 . 978 . 930 24 604, 5, 6 82 . 1015 . 351 660, 708, 710, 3 721 . 255 . 609 . 344 . 296 . 321 . 1092 . 1034 . 158 . 1130 563, 1115 . 944 . 313 . 319 . 590 293, 1017 . 574 . 1099 . 594 40, 162, 4 Sandon v, Hooper Sandys v. Sandys . Sanger v. Sanger Saiiey Brook Coal Co., Ra Sansom v. Sansom Sansum 11. Dewar . Sarel, Re . Sargent v. Roberts . Sarshaw v. Gibbs Saunders v. Best V. Dehew V. Dunraan 746, 7, 796, 896, 1110, 1111 . 266, 272 85, 215 361, 413 . 200, 6 . . 206 . 211 . 945, 950 . 419 . . 511 372, 860, 1018 511, 618, 703 PAGE 401, 4, 5, 1162 97 720 736 293 521 161 277 274 951 621 895 550 266 602 338 395 1074 1134 392 422, 744 997 1077 416 980 600, 5 277 442 729 382, 5 748 Saunders v. Leslie V. McGowran V. Merewether V, Milsome V. Richards . 1). Wharton Saunderson v. Man- Savage V. CaroU V. Jeyes . V. Lane V. Wharton Savery v. King Savignac v. CuflF . Savile v. Savile Saville v. Campion Saville's Case Savin, Re . Savory v. Barber 'Sawyer ■». Goodwin Say, Exp. Sayers v. Whitfield Sayle v. Freeland Saxton V. Davis . Scales V. Baker ■». Collins . Scarfe v. Morgan . 593, Scarisbrick v. Skelmersdale Scarth, Exp. Schlenier v. Moxey Schofield, Exp. . V. Schofield Scholefield v. Heafield 188, 322, 994, 5, 6, 7, 8, 1006, 7, 9 V. Ingham . . . 1106 V. Ingram . . . 1104 V. Lockwood 637, 648, 805, 6, 880, 964, 971, 3, 1104, 6, 1110 V. Templer . . 1157 Schoole V. Sail 224, 723, 5, Schroeder v. Cleugh. V. Central Bank Schulte, Exp. . Schweitzer v. Mayhew . Scio Sclater v. Cottan . Scott's Estate . Scott, Exp . V. Becher V. Ben . V. Bevan V. Brest . II. Colburn . • ?'. Cumberland . V. Penning . V. FraBkUn V. Jones V. Lord Hastings V. Nesbitt . V. Nicoll . V. Parker V. Porcher. V. Robarts . V. Scholey V. Scott «. Smith . V. Spashett . V. Tyler 7, 750, 1029 144 499 126 1034, 5 604 798 983 396 967,8 528 11 743 360 959, 975 631 697 915 , 83, 4 422, 3 1008 664 483 1003 61 962, 979 423 206 281, 2, 3 64, 71 Scottish Amicable Society v. Fuller 609 Digitized by Microsoft® ixxvm TABLE Of CASES. Sorafton ». Quinoey Seabourne v. Powell Seaforth (Lord) Exp. Seagrave v. Pope . Seaman, Exp. . ■ . Searle v. Colt . V. Law . ■' . Soaton ■!;. Twyford Sedger v. Groom • . Selby V. Cooling . V. Pomfret 808, 827; PAOB . 109 . 336 . 390 . 1060 638, 9 645, 860 . 309 24, 391 . 796 . 293 834, 833 6, 1091 , 412 . 161 . 791 . 694 649, 651 554, 55^ 991, 1026 803, 885 . 1053 . 882 . 959 16, 883 21 V, Chinna . 931 . 127 . 648 . 733 . 271 . 967, 9 . 1119 40, 188 . 956 946, 963 . 614 1, 52, 193 60 . 123 . 1053 788, 861 . 1010 . 644 165, 635 . 860, 2 27, 810, 811, 885, 6 881, 1095 . 214 . 621 . 1053 . 621 290, 1, 952 287, 1042 317, 394 . 1015 . 592 22 V. Johnson 227, 822, 906, 912, 4 -t — V. Selby — — V. White . . Self V. liadox . Sellick V. Smith . Selsey (Lord) v. Lord Lake Petnenza v. Brinsley . Seuhouse v. Earle . 729, 788, Sentance v. Porter Seygison, Exp. : V. Sealey Serle v. St. Eloy . Seton V. Slade . . Sevier v. Greenway Sevvaji Vijaya, &c. : _ Nayana Chetti S.eymour v. Lucas ^eys V. Price . Shackleton ». Shackleton SWtesbury v. Marlborough Shalfto V. Shafto . SJiakel V. Duke of Marlborough Shakels v. Richardson Shalcross v. Wright . Sb'a'Ucrqss ■!). Finden Sjiand V. Sanderson Sharp V. Earl of Scarborough — — V. Key . . . V. Bhoades , V. Sharp . Sharpe v. Foy — — V. Gamou V. Gibbs —_ — V. Thomas Sharpies v. Adams Bharpnell v. Blake |Wahaw V. Gibbs Shattock V. Shattook Sjiattocks V. Garden S,haw Exp: V. Bean - — v. Borrer ' V. Bunny . V. Foster - — - V. Hardingham : V. Holland ■ V. Jeffry 258, V. Neaie . 75, 100, 7, V. Pritchard V. Rhodes , V. Simpson V. Worcester (Marquis of) 826, '849 -. 342 . 1123 . 424 898 Shearman v. British Assurance Co. 511, 618, 703 V. Thompson . . 129 Shears v. Jacob . . . 357, 478 V. Rogers . , ,413, 518, 9 Shee V. French Sheen, Exp. Sheffield Union Exp. ». Duchess of Bucks PAGE . . 39, 40 . 639, 541 Banking Co., 317, 323 . 998 V. Eden . Sheldon v. Cox . Shellard, Exp. Shelley v. Nash . Shelmardine v. Harrop Shephard v. iliot Shepheard v. Beetham • Shepherd, Exp. . — — V. Gwinnet V. Harrison . V. Johnson V. Titley Sheppard, JEa^. . , V. Burbage V. Duke V. Sheppard 627 783 482, 499, 679 893 , 750 1104, 6 339 384 646, 1012, 1080 487 . . 590, 2 313, 724, 814, 820 390, 457 . 1031 . 907 . 296 V. Union Bank of London 661 275 48, 726 V. Wilson Sherborne v. Tolleniache Sheridan v. McCartney Sherman, Exp. . V. Cox . Sherrington, Exp. Sherwin v. Selkirk Sherwood v. Clark Shewell v. Jones Shillito V. Theed Shiphard v. Lutwidge Shipherdson v. Tower . Shipley v. Kymer . Shirley v. Martin V. Ferrers . V. Watts Shirt V. Westby Shore V. Shore . Shoi'laud, Expi Short V. Simpson Shrapnel v. Blake , 468, 471 388, 390 1012, 1115, 6 386 196 56, 152 1122 902 40 949 685 903 873 63, 133, 1077 194, 873 . 643, 1095 . . 545 . 6U 810 Shrewsbury (Countess) v. Earl of Shrewsbury . . 271, 648, 652 Shropshire Union, &c., Co.i). The Queen • . . . 783, 844, 861- Shrubsole v. Sussams . 447, 537, 540 Shuttleworth v. Hernamau V. Howarth V. Layoock v: Lowther Sibree i>, Tripp Sibson V. Fletcher Sichell V. Moseuthal V. Raphael Siddall V. Rancliffe Siebert v. Spoonerr -, SifFken v. Davis ■ V. Wray . Siggers v. Evans Sigourney D. Lloyd 463, 4, 7 . 974 810, 831 . 802 . 1158 . 910 . 201 . 483 . 642 . 638 995, 1000, 1015 610 524 r,5Z, 685 Silberschildt v. Schiott 1028, 1046, 1056 Silcock V. Roynon . . . . 732 Silk D.- Eyre .... 1129 1). Prime . . . .40, 188 Silver v. Barnes .... 1060 V. Bishop of Norwich . . 63 Digitized by Microsoft® TABLE OP CASES. Ixjdx Silvester v. Jarman Simmins v. Shirley Simmons v. Pettit . V. Edwards . II. Eose . Simoud V. Hibbert Simunds v. Lawnd . Simons v. Count de Wintz Simpson v. Denny — ■— V. Lamb ■». Morley . V. O'Fawa Rail. 1). O'Sullivan V. Pattlsou . V. Scottish Union V. Thompson Sims V. Helling V. Thomas Slmson V. Ingham Sinclair v. Great E. Bail, ■ V. Jackson Sing V. Leslie Singleton v. Butler V. Cox V. Hopkins . Sinnett v. Herbert . Sir Henry "Webb Skarf V. Soulby Skeeles v. Shearley Skeffiington v. Whitehurst Skelton v. Flanagan . Skerratt, Exp, Skey V. Bennett . Skinner v. Stacey . Skip V. Harwood Skipp V. Wyatt . Skipwith . Skirrett v. Athy . Skitter's Trust . Slack, Exp. . Sladden v. Sergeant 808, 905, Slade V. Rigg PAGE 1046, 1051 1103 113 450 956, 1123 422 230 78 958 895 66, 100 366 846, 879 993 806 617 244 516, 525, 906 1133, 4 . 143 6, 8, 912 . 277 . 635 803, 1010 . 220 . 946 . B68 . 518 52 1073, 5 . 288 . 545 . 1030 . 699 139, 61.5 798, 1008 . 607 57 . 7.i6 . 391 432, 3, 478 321, 442, 510, 591, 993, 1008, 1015 Slater v. LawsOT . . .923 V. Mayor of Sunderland . 631 V. Finder ... 125, 380 Slater's Trust, iJc . . 893, 908 Sleeman v. Wilson . . . . 916 Slim V. Crouoher . . .849 Sloman v. Kelly . ... 898 Slubey v. Heyward . . . 613 Smale v. Burr . . . . 476 Small V. Attwood . . .403 V. Marwood . . . . 303 V. Moates .... 602 V. Wing .... 272, 6 Smart, Exp. . . . 490, 1, 2 V. Bradstock . . . 1015 K.Hunt .... 929 V. Sandars . . . . 554 Smartle v. Williams . . 630, 691 Smeathman i). Bray . . 834, 1091 Smeeton v. Collier . . .699 Smethurst v. Longworth . . 188 Smith's Case .... 1062 &Co 1162 Estate, Be . 1050, 2, 1161 Mortgage, Be . . . 259 Be 877 Smith, ^a!p. (5 Ves.) (2 M. D. & D.) (11 L. J. Bk.) (1 Ir. Eq. L. R.) (2D. &C.) . (1 D. &C.) (3 M. D. & D.) (6Ve3.) (3 Ch.) . (3 M. & A.) (6R.C.) , (19 L. J. Ch.) V. Aykwell V. Baker V. Bank of N PAGE . 174 311, 3, 7, 395, 8 . 359 391, 659 . 393 . 396 . 489 630, 847 . 747 . 1161 1). Bank of Scotland — — V. Barnes . V. Bicknell . V. Bond . V. Boucher . V. Bromley V. Bruning V. Cannau V. Cheese 1). Cherrill V. Chichester 903 336 S. Wales 567, 8, 9 . . 1132 . 1098 . 750, 1008 . 898 757, 1022 129 . . 903 . 538 . . 477 523, 530, 1 244, 309, 626, 847, 864, 6, 1005, 1012 V. Coplestone . . . 867 V. Cuff .... 129 V. Dearlove . ... 598 V. Durrant . . . 261 V. Earl of Effingham 106, 784, 846, 1123 V. Eggington . . . 711 V. Etches .... 1010 V. Evans 266, 323, 404, 856, 7 V. Frederick . . 648, 652 V. Garland . . . . 532 V. Gould .... 667, 8, 9 V. Green 731, 5, 802, 1033, 1079 V. Gye .... 315 V. Hibbard . ... 401 V. Hill .... 907, 8 V. Hudson . . . . 608 V. Hurst ... 52, 65, 6 V. Low . . . 776, 787 V. Moreton . . . 938 V. Morgan . . . . 118 V. Nesbitt ■ . . 350, 879 ■ V. Osborne . . . 334, 6 V. Pavier .... 852 V. Phillips .... 645, 9 V. Pierce .... 738 V. Pilgrim . . . . 641, 2 V. Pilkingtou . . 1061, 1106 V. Plummer . . 665, 604 V. Pocklington . . . 718 ■ V. Pococke . . . . 641 V. Robinson . . . 377, 1000 V. Scotland (Bank of) . 1132 V. Smith (9 Beav.) 213, 845, 6 (2 Vern.) . . 273 (11 C. B. N. S.) 290 (lY.&C. Exc.)413, 6, 8 (2 Cr. & M.)446, 766,773 ] (3 Giff.) . . 939 (7Jur.N. S.) [■ ^'^^ ■■ (Stra.) , ) , 482 !: Digitized by Microsoft® Ixxx TABLE OF CASES. PAGE ) PAOB Smith V. Smoult 1036 Spears v. Lord Advocate . 175 V. Timms . . . 538, 541 V. Hartley . . 600,635 1). Topping 447 Speer's Trust . 1160 V. Valence . . ■ . 1071 Speldt V. Lechmere . . 573 V. Wall . . . 472 Spenoe v. Spence 290 ' V. Wfetherell 360 Spencer, Exp. . . 456 V. Youde , 86 '■ V. Boyes . 997 Smith, Fleming, & Co.'s Case 122 V. Clarke 509, 776, 780, 3, Smithwick v. Smithwick . 203 854, 6 Smurthwaite v. Wilkins . 614 V. Pearson 763, i !15, 817, 861 Smyth, Mcp. " . 276 V. Slater . , 524 . ■». Foley 267,8 V. Spencer . . 274, 7 Smythe v. Griffin 897 V. Topham . . 751 Snagg >. Frizell 800 Spencer's Case . 805, 1163 Snare v. Baker . . 1039 Spensley's Estate, Be . . 1031 Snead v. Watkins . . 598 Spicer, Exp. . . . 442 Snee v. Frescott . 550 1). Spicer . 209 Snell, Be 627 Spickernell v. Hotham . . . 914, 6 V. Finch . 713,4 Spirett V. Willdws 618, 620, 2 Snook V. Watts . 1019 Splidt «. Bowhs . , 674 Snow 41. Bobth . 914 Spofforth V. Potts . 733 Snowball, JScp. : . 776 ■ Spong V. Spong . 953 , 4, 961, 984 Soames v. Robinson . 40, 188 V. Tucker. . 167 Soar V. Dalby .... 1103 Spooner, Exp. . . 127 Soares v. Rahn ... 6 68, 671 V. Payne 76, 141, 200 Sober v. Kemp . '. 823, 82 6, 1092 V. Sandilands . . 165, 307 Solicitora' & General Life Assur Sporle V. Whayman . 321, 2, 724 ance Soc. v. Lamb . 506 Spottiswode, Exp. . . . 882, 3 SoUey V. Gower . . .3 S, 38, 9 V. Stockdale . 1030 V. Wood . 295 Spradbery's Mortgage . . . 761 SoUory v. Leaver . 725 S]jrague, Exp. . 449 Solly V. Rathbone 600 Spring V. Allen Sproulo V. Prior ■ . . 321 Solomon, Exp. " . 381 412, 978 V. Solomon . . 9< 0, 1017 Sprunt V. Pugli Spurgeon v. Collier . . . 133 Somerset v. Cox . . .2 00, 774 16, 529, 929 Somervillfe, Mxp. . . . 332, 3 Squire v. Ford . 66, 645 Somes V. British Empire Shipping 5 Co. V. Huetson . 138 , 683 Stables, Re . . . . . 220 Sorensen v. The Queen . 752 Stack i: Moyse . . 413 Sorrell v. Carpenter . . 791, 3 Stackhouse ii. Jersey 323 , 84f, 803, 4 South, Exp. . . . 481, 2 Stackpole v. Earle 198, 897 Ee . . . .50 69, 72 Stackpoole v. Stackpoole . . 631 V. Bloxam 797, 808, 98< ), 1128, Staftord v. Stafford . . 907 1134 Stainbank v. Fonuing 669, 671, 604 South Durham Iron Co., He 868 V. Shepfird . . 567,9 Essex Gaslight Co., Re 357 Staines v. Rudlin . . . 1000 Sea Co. V. Dun comb 683 Stains v. Banks . 744, 883 Yorkshire, &c., Co. v. Gt St. Albyn v. Harding . . . 895 • Northern Rail. Co. . . 353, 8 Staraers v. Preston' . 1063 Southall, :fii5). 595 Stamford, &o.. Banking Co. . . 1131 •Southam, Exp. . . . 4 62, 472 V. Ball 612, Southamjlton Boat Co. ' v. Pin 59 1, 1036, 1093 nock ... 356 V. Duubar . . 351 Southooat V. Manoiy . 1081 Stamper v, Pickering . . 297 Southoote's Case . 588 Stanhorough, Exp. . 383 Sowden v. Sowden . 413 Standen v. Bnllock . . 628 Spackman v. Miller . 448, 9 Stanford v. Roberts . 861 v. Timbrell . 1 91, 284 V. Robinson . . 136 Spaight V. 'Cowne . Spalding v. Ruding . .41? 860 Stanhope, &c., Co., Re . 880 , 612, 3 : V. Earl Verney . . 824 V. Thompson . 812 , 836, 7 V, Manners . 883, 1018 Sparke v. Montriou . . 7S Sparkea, Be . V. Bell . 9, 1098 V. Thacker . . 271 760 Staniforth ii. Staniforth . 2fi6 215 Stanley v. Bond . . 83 V. Smith . 241 V. Staiilty 209, 207 Sparrow, Exp. . V. Cooper . 539 Stanley's Case . . 360 113 Stannard ii. UUathome . ■ . 641 V. Fanner 1061 Stansfeld v. Cubitt . . 474, 6 , V. Hardoftstle . 33 Stanslield v. Hallam , . 1083 Digitized by Microsoft® TABLE OF CASES. Stansfield v. Hobson Stanton v. Hall . Stapilton v. StapUton Staples V. Purser . Stapleton v. Colvile V. Haymen Steads' Mtg. Est. . V. Banks . V. Hardaore . Steadman v. Hockley Stedman v. Hart . V. Webb Steedmin v. Poole . Steel V. Brown . Steele v. Maunder . V. Murphy V. Rorke V. Stuart . Stein V. Stein Stolfox V. Sugden Stephen v. Olave . Stephens, Exp. . V. Sole • ■ V. Venables V. Wellings V. Weston V. Wilkinson Stephenson, Exp. V. Green V. Hayward 1). Heathoote Stemdale v. Hankinson . Sterne v. Beck Stevens, Exp. 's Will . V. Austen V. Dethick V. Mid Hants Ey. V. Phelips V. Stevens Stevenson v. Blakelock Steward, Exp. V. Dunn . V. Lombe Stewart, Exp. V. Moody V. Noble . Stickney v. Sewell Stiff.! V. Everitt . Stileman v. A.shdown . St. John tLord) v. Boughton V. Turner . Stocks Holland V. Moyse Stocken v. Dawson Stocks V. Dobson . Stockton Iron Furnace Co., Re 126, 380, 400, 446, 457, 688, 1102 Stockton Malleable, &c., Co., Be. 446, 617 Stokes V. Clendon V. KusseE Stokoe V. Cowan . V. Eobson Stone V. Comptou V. Evan — — V. Iiidderdale PAGE . . 934 Stone v. Parker . 205 V. Thomas . 328, 331, 8 V. Van Heythuyseu 162 Stonehewer v. Thompson 944, 6, 7 Stonehouae v. Gent 562, 4, 5 Stopford v. Fitzgerald 906, 7, 8 Storer v. Hunter . . 1088 Storey v. WaM . . 958, 9 Stone's Trusts, Re 694 Story v. Fry . 74 V. Lord Windsor 628, 636 V. Tonge 778, 781 Stony v. Walsh . 516 Storton u Tomlins 1011, 1015 Stow V. Davenport 422 St. Paul V. Dudley . 117 Strachau v. Barton 489, 767 V. Thomas 780 Strand Music Hall Co., ife 296 519 Strange ». Fooks . 382, 393, 476 v. Lee . 452 Stratford v. Twvnam 774 Stratou v. Rastall 1106 Stretton v. Ashmall 630 Stribblehill v. Brett . 610 Strickland v. Strickland 432, 985 Stright, Exp. 1091 Stringer v. Harper . 819 Stringfellow's Case 947 Strode v. Blackburne 917 V. Parker . 23 V. Eussell . 410, 540, 766 Strong v. Strong 1047, 1052, 3, 4 v. Teat 254 Stronge v. Hawkes . 266, 7 Stroughill v. Anstey Co. Stuart, Re I, 646, 653 V. Cockerell 155, 380 V. Kirkwall . 854, 6 V. Stuart . 624 V. Toulrain 481 V. Worrali 775 Stuart's (Sir Simeon) Case 429, 430, 9 Stubb's Estate . 446, 7, 456 Stuckville v. Dolben 537 Sturch v. Young . . . 873 Sturgeon v. Wingfield 299 Sturges v. Joy . 201, 6, 1040 Sturgis v. Champneys 52, 61, 521 Styaii, Re 919, 922, Style v. Martin . 934 Suche, Joseph & Co., Re 924, 5, 930 Suckling v. Coney . 126 Suffield V. Suffield . . . 227 Suffolk (Earl of) v. Cox 616 Sullivan, Re . . 144, 601 Summers, Re Sumpter v. Cooper . Sunbolf ». Alford Surtees v. Parkin , Sutton V. Bath . 1006, 9 V. Chetwynd . . 717 V. Rawlings 140, 516, 520 V. Smith . . 749, 750 V. Stone . . 1132 Swabey v. Swabey , 241 Swaby v. Dickon ^ 199 . ..Swainsonj;, Swainson Digitized by microsoW® 83. PAGE 939 386 1031 63, 1077 671 166 451, 3 28rt 5114 194 768 206 191 161 278 648 535, 6 90.-> 202, 355, 7 1131 1138 132 1131 299 903 960, 978 502 957 171 863 833 1055 520, 522, 6 . 1051 981, 3, 4 191, 23". 7fiO . 772 . 211 219, 301 . 303 . 1099 . 306 . lis . 1028 728, 1118 . 716, 9 128 204, 5, 1041 . 768 . 1017 196, 400 10 . 415 200, 774 . 631 . 196 88, 309, 314, 396 598 980 433, 477, 9 530 700 1003 232, 331, 1011 647, 9, 650 . 1123 . 946, 9B« 848 bexxii TABLE OF CASES. Swainston v. Clay Swallow V. Swallow Swan, Be . V. Swan Swayne v. Swayne Sweeny v, Fleming , Sweet V. Pym V. Southeote . Swinburne v.' Swinburne Swiney«. Enniskillen, &o., Co, Swinfep v. S.winfen Swire v. Leach . V. Kedman . Swynfen v. Scawen Sykee, .Ecp. 's Trusts V. Bond V. Giles . Symes v. Hughes . Symnies v. Symonds Synimons, £xp. Symons v. James PAGE 454, 465, 617 . . 297 . 1129, 1137 421 770 Sympson v. Protheroe Taafe, Ee . Tabor v. Grpver V. Tabor. . Tabram v. Freem.an Tagart, Fxp. Tait, ilxp. ._ . V. Northwick Talbot V. Braddyl V. Frere . V, Shrewsbury Taner v. Ivie 'i'anfield ». li-vine . Tankerville (Earl) v. Fuwcett Tanner v. >iyne . r. Heard . V. Scovell Tansley v. Turner . Tapfield v. Hillman Tapp V. Jones . Tapply V. Sheather Tarback ii. Marbury Tarbottom v. Earle Tardiff v. Scruglian Tardrew v. Howell Tarletpn y. Hornby . -f — V. Liddeli Tartar . Tasburgh v. Eolilin Tasker v. Small 287, 729, 62 601 763 276, 7 .367 649, 651 583, 7 1133 867 S89, 394, 442, 453 211 784 485 621 823 450, 472, n. {dC) 945, 955, 960, 2, 978, 980, 1, 9 Tassel v. Smith . 832, 833, Taster v. Marriott . Tate, JScp. . — V, Austin — V. Wellings Tatham, Exp. _ . . ■ : 1 appellant^ Audree; ipondent - — V. iParker . . Tatlock V. Jenkins , Tau.Dton v. Morris . Taylor, lie . ' . ' . V. Baker 628, 639 1018 1038 1036 129, 165 441 26 944, 6 7, 325 812 294 283 1119 735 268, 1032 . 613 608, 9, 613 429, 432, 3 155, 6, 8 22 . 521, 530 297 407,8 1076 629 667 26 1017, 1079, 1086 4, 5, 6, 840 242 543 972 691 393 425 696, U22 966 204 542 780, 1, 801 PAGE . 826 . 521 . 641 701, 995 . 518 49 Taylor v. Barker V. Bowers , V. Blacklow V. Ooates . V. Coenen V. Cole V. Debar. V. Eckersley V. Emerson V. Fields . V. Harewood V. Hawkins V. Haj'garth V. Hayliu . V. Kymer V. Manners V. Meads ^ V. NichoUs. V. Phillips V. Sparrow . V. Stibbert V. Taylor . V. Trueman V. Turnbull V. Wa.ters V. Wheeler V. Zamira league's Sett. Teape's Trust Teasdale v. Braithwaite V. Sanderson Tebb V. Hodge . Teed v. Carruthers . Tempest, JExp. . Temple, Exp. . Templer's Trust . Teuison v. Sweeney Tennant v. Trenchard Tennisou v. Moore Tennyson, Exp. . TeiTy, Ee Testrail v. Mason Teulon t>. Curtis Tew V. Earl Winterton Teynham v. Webb Thackemy v. Wood Tharp, ife . Thayer v. Lister Theed's Settlement Therese & Co., Ite . Thirtell v. Yaughan Thomas, Eo!p. V. Brigstooke 11, Britnell V. Courlnay v.. Cross . V. Pavies . V. Dunning V. Eastwood V. Gwynne - — V. Kemeya v. Lewis V. Lloyd . ; 1!. Pledwell, — ■— V. Terry. „„ , «!. Thomas 808, 811, 2, 916, 973 1 nomas s C*se . , . . ygQ Thompson v. Bowyer , . 934 : "■ Cartwright . . 733 . 456, 466 24, 1035 . 139, 615 . 278 . . 282, 5 42 . . 1116 . 548, 9 . . 1157 . 210 . 162, 3, 4 . 995 . 320, 851 . 776, 7 296, 871, 954 . 648, 9 . . 34 994, 1018, 1029 . . 334 . 710 . . 209 . 1051 . . 628 . 421 310, 441, 807 406, 732, 4 . 542 . . 397 . 765 . 112, 827 257, 321, 993 . . 277 . 765 . . 451 . 938 . 326, 801 414, 433, 871, 2 . 277 . 225 . 423, 4 233, 489 . 277 . 400 1050, 2 . 467 . 695 . 954 . 622 63, 70, 751, 764 . 777 . 1015 . 906 . 189 648, 661 . 566 . 895, 6 105, 181 736 Digitized by Microsoft® •TABLE OF CASES. Ixzxiii PAGE PAGE Thompson v. Clark . 202, 304 Tildasley v. Stevenson . . . 735 V. Cohen . 414, 435 Till, £iy>. . . 1121 V. Dominy . 618 Tilly V. Egerton . Tilson V. Lawder . . 1036 V. Drew . . 867 . 998 • V. Farmer . . 548 Times Life Ass. . 1163, 4 V. Freeman . . . 636 Timson v. Eamsbottom (770, 3, 6 i;. Grant . 1037,1052,1055 Tipping V. Power . 321, 731, 1030, 1 V. Hudson 23, 268, 530, ■ V. Tipping . 978 733, 885, 1103 Tipton Green Co. v. Tipton Moat V. Jackson . . . 535 Co. . . . . . 747, 799 V. Kempson V. Kendall . 197, 340 Titley v. Davies . 831, 2, 3, 6 . 732, 799 • V. Wolstenholmo . . . 254 11. Lack . 1135 Tobago . 752 V. Lacy . . 598 Todd«. Studholme. . . 641 V. T,angridge . 166 Todhunter, Exp. . . 126 • V. Pettit . 438, 442, 453 Toft V. Stephenson . 90£ , 915, 921, 2 — - V. Planet Building Soc. Toivo .... . 568, 9 559, 1064 Tolley, He . . . . . 545 V. Eoyal Exchange As- Tolson V. Dykes . 75, 142 surance . . . 570 Tombs V. Koch 112, 962, 978 V. Simpson 112, 482, 788 Tomkins v. Saffery . 534 V. Speirs 501, 2, 775 V. Coltlmrst . . 979 V. Todd . . 287 Tomlinson v. Gregg . . 800 V. Tomkins 501, 4, 770 Tomrney v. White . . . 250 V. TJ. S. Co. . 148, 9 Tompkins v. Tompkins . 952, 3 1). Webster . . . 523, 4 Tompsett v. Wickens . 994, 1000 Thomson, Re . 1004 Tompson v. Leith . 870 Thomson v. Barrett . . 464 Toms V. Wilson . . 5 52, 431, 691 V. Grant 193 Tomson v. Judge . 896 V. Simpson . . . 483 Took V. Tuck . . 621 Thorn v. Croft . . 1062 Tooke V. Bishop of Ely . 1028 Thornher v. Wilson . . 297 V. Glasscock . . 328 Thornborough v. Baker . 29, 1036 — - V. Hartley ■ 583, 1027 Thome v. Neale . . . 164 V. Hastings . . . 414, 5 V. Newman . . 421, 1110 ■ V. Hollingworth Tooms V. Chandler . . 487 1). Thoriie . 33, 41, 1078 . . 1164 Thomeycroft v. Crockett 531, 747, 839, Tooth V. Hallett . 618, 703 1006,, 1089, 1091 , 1104, 5, 1110 Topham, £xp. . . 542 Thornhill v. Evans . 800, 869 Topping v: Keysell . 537 V. Glover . . 927 Toplis V. Bate . . 910 V. Manning . . 1024 Torre v. Bi-owne . . 871 Thornton, JSxp. . . 383 Tottenham v. Emmett . . . 895 V. Bright . . 209 V. Green . . 895 V. Court . 743, 1111 Toulmin v. Price . . . 748 V. Finch . 66, 9, 70 V. Steere . t 45, 65.3, 783 II. Maynard . . . 555 Tourle v. Band 328, 333, 5 79, 780, 853 V. McKewan . 1136 Tourville v. Naish . . 767 Tliorp V. Browne . . . 67 Tovey v. Skipworth . . 832 Thorpe, Sxp. . 394, 6 Tower v. Rous . . 944, 6 V. Coleman . . 900 Townend v. Toker 529, 532 V. Eyre . . 535, 7 Townley r. dump . . . 609 V. Gaitside 321, 2, 1023 Townseud, Be . 760 V. Holdsworth 317, 844, 863, 4 V. Westacott . . . 518 Threfall v. Berwick. . 598 V. Wilson . . 255 Throgmorton v. Crowley . . 630 Townsheud v. Mostyn . 946, 970 Thruxton v. Att.-Gen. 43 Lord V. Windha m . 519 Thunder v. Belcher . . 691, 705 Toynbee v. Brown . . . 351 Thurgood v. Cane . 1021 Tracey v. Lady Hereford . 881 Thurlow V. Maokeson . . 252 V. Lawrence . 249, 774 Thurston v. Mills . 171 Trafford v. Ashton . 271 Thwaites v. M'Donough . . 717, 922 Traill i>. Ellis . . 784 Tibbits V. George 484, 537, 773 Traherne v. Sadlier . 242 Tichener, Be . . . . 773 Trappes ». Barter . 440 , 441, 453, 4 Tichner ■». Trchner . 1086 Trash v. White . • . 910 Tidd V. Lister . . 204,5 Travis v. Milne . . 767 Tiddesley v. Lodge . 768 Tredinnick v. Oliver . . 153 Tieriiey, £xp. . 385, 391 Tredway v. Fotherley . . 231 Jle . . 1062 Tregonning v. Atteuborough . 688 Tilby V. Best . . .^ DialtizedWl /ilM'b'&h® ■ ■ ■ . . 1023 Ixxxir TABLE OF CASES. PAGE Trent v. Hunt . . 684, 709, 713, 1124 Trethewry it. Helyai . . . 974 Trethowm, He . 441, 453, 465, 7, 8 Treuttel v. Barandon . - . 563, 585 Trevilian v. Mayor of Exeter . 416 Trevor, Sep. . . . 538, 643, 691 V. Trevor . . . 647 Trew, Sxp 394 Tribourg v. Lord Pomfrst . . 834 Trident 567, 571 Trilly V. Keefe . . . . 1021 Trimingham v. Maud . . . 490 Trimleston (Lord) v. Hamill 743, 6, 1105, 1106, 7, 1110,-4 Trimmer v. Bayne II. Dauby Tripp V. Stanley Trismall v. Lovegrove Tronson v. Dent Trott V. Vernon . Trott's Estate Troubadour Troughtou «. Binkes V. Gitley . V. Troughton Troup's Case Trousdale ii. Shepherd Trowell v. Shentou Trulock V. Eobey , Trumper v. Trumper Try e v. Earl of Aldborough Tubbs V. Broadwood . Tuck V. Tooke Tucker «. Hevnaman V. Humphrey II. Wilson Tuokley v. Thompson Tuer'i). Turner . Tugman v. Hopkins Tmte V. Bermiugham Tull V. Owen . Tullett V. Armstrong Tunstall v. Boothby Turner, Sxp: 411, 977 309, 887 . 97, 166 ' . 457 . . 575 . 953 . . 196 . 607 1015, 1072 . 455 . . 811 . 368 .• . 478 . 523, 9, 532 934, 935, 1106, 9 244, 983 1016 417 129 455 608^ 610, 2 583, 591, 993 321, 987, 1031 . 203 . . 210 . 276 . . 19 . 208, 213 . . 200 52, 5, 105, 8, 110 V. Barnes . V. Cameron . V. Cameron's Coalbrook Steam Coal Co. . . V. Cox .... 11. Crane . V. Deane. v. Gwynn . v. Letts . V. Marriott V. Metropolitan, &o.; V. Richardson V. Richmond V. Thomas V. Turner . Turner's (Sir Edvpaid) Case . Turney, ixp. . Turquand v. Eearou V. Kirby Turrell v. Crawley Turvill, £xp. . 'I'uton V. Sanoner Tffedilell V. Tweddell 118 687 439 . . 707 . 193 . . 1038 . 626 . . 34 626, 633 . . 402 Co. 149 . 241 . 818, 823 555, 599 . . 871,4 204,1036 384 498 190 598 393 .477 965,8 Tweedale v. Coventry i>. Tweedale Twining, Uxp. . ' Two Ellens . Twopenny v. Young Twycross v. Dreyfus Twynam v. Hudson Twynan v. Porter . Twyne's Case Tylden v. Hyde . Tylee v. Tylee V. Webb 321, Tyler v. Lake V. Thomas V. Yates Tyndale v. Warre . Tyrrdl v. Mead . TyrwhittK. Tyrwhitt Tyson v. Cox PAGE . 959 . 783, 831, 3, 5 . 390 . . 606, 7 643, 736, 1130 . . 364 . 306 . 631, 7, 9 . 426, 515 . 289, 291 . 1122 784, 791, 1012, 4 . 649 793 . 890,' 3, 4, 5 . . 38 . 328 . . 649 . 649, 1132 Underwood, Be . .. 64, 258, 756 V. Joyce . . . 321 — — V. Lord Courtown 111, 2, 4 Union Bank of London v. Lenan- ton . . . . 468 Bank of Manchester, Exp. 448 United English & Scottish Co. . , 155 Unity Bank ii. King Universal Disinfector Co. Upperton v. Harrison Uppington v. Bulleu . V. Tarrant Uppom V. Sumner Upton V. Bassett . V. Vauner Uruguay, &c., Ky. Co., lie Usborne®. Usbome Usher, Mcp. » 421, 746 . 121 731, 1031 . 1008 . . 908 . 171 . . 531 . 848 , . 363, 6 . 705 . . 173 Vacher v. Cocks Valierl v. Boyland Vallance, M^. Vallis, Me . Valpy's Case . Valpy V. Gibson . Van V. Barnett Van Casteel v. Booker Van Sandau v. Vandaleur v. Blagrave Vanderzee v. Willis Vaue (Earl) v. Eigden V. Vane . Vann v. Barnett . Vardeu Seth Sam v. Koyjee Lallah Varnash, £xp. . Varney v. Hickman Vaughan richolls 731 V. Parker . 528 West V. Coje ' . . . . 956 V. Peache" . . . 451 V. Fn'tche '. . 686, 9 — — V. tearson . . 255, 6 V. Jones . . 800, 3 V. Sadleir . . . 413 V. Keid '. . 50 1, 2, 618, 766, V. Swift . . 1088 780, 8 V. Waltham . . 687 V. Skip. ■ . 428 447, 521, 615 Watts, Exp. . 454 V. Stewart . . 246, 658 V. Christie . " . . . 597 Westboiime Grove, &c., C Westbrdoke v. BIythe . 0. . 400 — =— V. Hyde . . 623 53, 99, 107, 8 V. Jefferyes . . 80, 140 Westbury v. Clapp . 514, 519 V. Lord Eglinton . 1141 Westerdell v. Dale . . . 241 V. Porter . . . 83 Western Bank of Scot and V. V. Shuttlewortli . 1131 Addie . ' . . . 356 V. Symes 645, 834, 5, 1020, 1091 Wcstoby V. Day . . 153 V. Thomas . 1080 Weston V. Barton . 1138 Waugh, Se . . . 398, 434, 474 V. Filer 759, 1002 V. Waddell . . 751 V. Wright . 565 V. Wren . . . 1137 Westzinthus, Be . Z 81, 612, 3, 983 Waugh's Trusts, iJe . . 753 Wethered v. Wethered . . 414, 436 Way V. Bassett . . 923 Wetherell, Exp. . . 316 Wa;yne v. Hanham . 883, 1000 V. Collins 798, 1005 V. Lewis . 321, 510, 591, 993 Whale V. Booth . . 138, 283 Wearing v: Ellis . . 1077 Wharton v. May . . 892 Weaver v. Maule . . 32, 230 V. Walker . . 484 . V. Stokes . . 161 Wliatford v. Moore . . 274 Weaving v. Count . . 799, 1009 Whatton v. Cradock . 374, 1024, 1112 Webb's Policy . . 772 Wheatley v. Bastow . . 770, 1132 Webb, Esq). . . , 391 Wheaton v. Graham , , 801, 3 Digitized by Microsoft® TABLE OP CASES. Ixxxvii PAGE Wheeler, iJe .... 760 V. Branscombe . . . 710, 1 V. Claydon . . . 954 V. Gibbon . . . . 235 D. GUI . . . . 874 V. Howell . . . 906, 8 V. Montefiore . 431, 685, 9 V. Thomas . . . 956 Wheelhouse v.. Ladbrooke . . 702 V/hetstone (Lady) v. Sainsbury . 747 Whieldon v. Spode . . . . 960 Whitacre, Exp 1051 ■Whitaker v. Harrold . . . 717 "Whitbread, Exp. . 310, 1, 3, 4, 324 V. Jordan 317, 780, 1, 2, 791, 856 V. Lyall . 1026, 1090 V. Smith . 880, 1082, 3 White, K. Baylor . . . . 123 V. Bishop of Peterborough 53, 1032 V. British Empire, &c., Co. 507 V. Carmarthen, &o., Ey. . 358 V. Dobinson . ... 617 V. Ewer ... 26, 925 V. Gainer V. Gndgeon V. Hillacre 593, 607 . 1031 831,919, 920 bZ\ 431, 517, 685 457 631 930 Assiir- 634 872 386, 7 1118 530 406, 778, 857 948, 1095 625 1092 1). Morris V. MuUett V. Pearce V. Pigeon . V. Eoyal Exchange ance . V. Sealy V. Simmons V. Siiiale V. Stringer V. Wakefield V. White . V. Witt Whitegrave v. Craddock Whitehead v. Anderson . . . 608 Whiteman v. Hawkins . . 641 Whitfield %: Brand . . . 461, 2 (Incumbent of) . . 1161 n. Faussett . . . 748 V. ParHtt . . 18, 801, 4 V. Prickett . . 82, 140 V. Roberts . . 1000, 1024 Whiting>. Burke .... 1132 V. White . . . 930, 4 Whitla V. Halliday . . . 1008 Whitmarsh v. Robertson . . 206 Whitmore v. Claridge . . . 540, 1 V. Dowling . . . 540 V. Empson . . . 453 1). Simpson . . . 442 Whittenbury v. Law . . . 146 Whittingham's Trust '. . .217 Whittle V. Henning . . . 206 Whitton D. Peacock . . .719 Whitworth v. Davis . . . 1010 V. Gaugain 64, 115, 373, 819, 823 V. Rhodes Whyman v. Gath . Wickenden r. Kayson 252, 1090 . . 1019 993, 1031, 2 Digitized by PACK Wickens v. Townshend . . 635 Wickham r. Bath (Marquis of) . 545 V. New Brunswick, &c.. Rail. Co. 359, 361, 5, 6 V. Nicholson . . 999 Wicks V. Scrlvens . . 1033, 1079 Wideery v. Tepper . . 75, 140 Widdowson v. Duck . . . 299 Wigg V. Wigg . . , 372, 768 Wigglesworth t;. Wigglesworth . 1039 Wigham v. Measor . . . 1000 Wight's Mortgage Trusts, Ee 88, 109 Wigsell V. Wigsell . . . . 648 Wilbraham ji. Livesoy . . 777, 8 iJ.'Snow . . . 132 Willcock V. Terrell . . 199, 200 Wilcox V. Wilcox . . . . 41 3 Wild V. Lockhart . . . 1031 Wilde V. Clarkson . . .872 V. Waters . . . . 43S — - V. Radford . . .596 Wildgoose V. Wayland . . . 772 Wildham v. Wildham . . 590 Wilding V. Richards . . . 303 Wildman, Exp 3»1 Wildy V. Mid Hants Rail. Co. . 365 Wiles D. Cooper .... lliO V. Gresham . . . . 414 Wiley V. Crawford . . . 560 Wilkes V. Boddington . . 790, 824 11. Collin .... 649 V. Hnnserford Market C". 617 - V. Saunion . . 800, 1115 Wilkins,iJe , . . . .153 V. Carmichael . ... 604 V. Reeves . . . 1016 V. Sibley . . 418, 645, 769 Wilkinson, Erp. . . 297, 502 Jle . . . . in V. Beale . . 999 V. Charlesworth . . 204, 6 V. CoUey . . 709, 1125 V. Grant . . . 201 V. Hall . V. Merryland V. Slee V. Sterne V. Traxton ■ V. Wilson . Wilkinson's Mortgaged Estates, Wilksji. Wilks . Willau V. Lancaster AYilles V. Finenx . V. Greenhill V. Levett Willett V. Winnell William Wilmer v. Cnrrey Ue Wm.ams^EufpA^I'^^-y &F.) (ID. &C.) (1 Mont.) (11 Ves.) , (7 Ch. D.) Williams' Estate . Williams, Re . . . . V. Allsup V. Atkyns — — V, Aylesbury, &o, Microsoft® 68 1, 9 1048 1044 1134 700 576, 7 1001 413 954, 5 747 773, 4 726 20 567 936 125,131.3, 171, 380 392, 799 . 615 . . 68S 118, 19.5, 998 631, 754 663, 605 . . 505 Co. 411 Ixxxviii TABLE OF CASES. ■Williams v. Bolland . V. Bosanqaet V. cutty . 1). Cooke V. Craddock — — V. Day . V. Evans . V. Everett ■ V. Hay ward V. Jones . V. Lambe . V. Lomas V. Lucas i>. Mayne V. Medlicott 11. Owen — — i>. Piggott . — — V. Price . PAGF. 78 . . 241 946, 952, '8, 960 . . 203 . 131 . 1115, 6 . 441 . . 481, 3 . 1062 , . 78 . 863 . . 214 . 413, S . . 206 . 311, 722 21, 4, 5, 9, 814, 825, 6, 838 . 761, 1116 496, 742, 1101, 1114, 1131 151 V. Roberts V. SidmouthEy. Co. 148, - 365, 8 113, 664, 8, 88.1 ■ V. Sprrell . • V. Springfield. V. Stern V. Syilionds , V. Thomas . V. Thorp V. Wetftworth V. Wilson . Williamson v. Gordon V. Gould . Willie V. LxTgg. Willie V. Pollen . Willink V. Andrews V. Bentinok . Willis®. Fineux . V. Palmer Willook V. Dargan . 656, 1042 23 . . 771 . 416 601, 766, 774 . 193, 220 . 887 . . 995, 6 646, 703, 1137 . 831, 2 . 785 . . 361 . 992 . . 747 563, 573 123 Wilioughby ». Willoughby . 776,817, 824, 844, 859, 861 Wills, Exp 306 Wills, Jie Wilnier v. Currey Wilraot V. Pike . Wilson, Exp. Be V. Balfour ». Bennett . V. Cluer . V. Darlington V. Duudas . V. Dunsany V. Emmett. V. Fielding V. Foreman V. Halliley V. Harman. V. Hart . V. Heaton . V. Hood . v. KnuHy V. Leonard V. Lloyd . V. Maddison V. Metcalfe V, Moore 804,5 . . 736 258, 371, 409, 601, 764, 824 . 393, 6, 681, 694 . . 245 313, 427 . . 254 731, 802, 1104, 6 . 971 . . 155 120, 992, 1034, 5 . . 631 . . 416 . 271, 294 . . 887 . 775 . . 975 . 638, 9 . . 187 319, 736 . . 1137 . . . .877 , 799, 803, 1106 . 280 PAGK Wilson V. Oldham- . . ■ 206 r. Bay ■ . . . 129, 621 V. Bound ■ . . • 637, 8 : V. Short . ■ . . . 737 V. Tooker . . • 584 ■ V. Whateley . . . 440 V. Wilson ... S73, 4 Wilson's Case. . . . . 354 Wilton V. Chambers . . .641 13. Dunn . . . 710,714 V. Jones . . . • 1007 Wiltshoar v. Cottrell . . . 438 Wiltshire v. Rabbits . . 371, 764 , V. Smith . . . 885 Winohersea«. Garrety . 769, 773 V. Norcliii'fi . . . 23 V. Wentworth . . 23 Winchester (Bishop o!f) v. Beavor 99.i, 6,1012, 1016 1). Mid Hants Ky. Co. . 410, 1 V. Paine . 791, 1016, 7, 1025, 1099 Winder, Exp 639 Windham v. Graham . . 276, 8 V. Jennings . 809, 810 Wing V. Harvey 506 V. Tottenham, &c., Ey. Co.. 411 Wingfield, Exp 451, 6 Wingraye v. Palgrave . . . 274 Winn V. Ingleby . . .' . 438 Winter, iJs 90 V. Lord Anson 401, 404, 7, 784 V. Homan ... 62 Winthrop v. Murray . . . 726 Wintle V. Williams . . . 157 y^iae, Exp 321 Be 1). Bereaford . «. Charlton V. Wise . Wiseman v. Beake '- V. Westland 759 . 62, 349 . . 665 766, 770, 5 . 892 113, 852, 4, 863, 1022 Wishall V. Short .... 1028 Witham v. I.yncli . . . . 85 Witherington v. Banks . . 745 Withers v. Kennedy . . . 952 Withington D. Tate ... 658 Witt,ite . . .... 596 Wittle V. Kenning . . .206 Wolfe V. Fiudlay . . ' . . 877 Wolff D. Summers . . .598 WoUaston v. Tribe . . . 531 Wolston V, Aston ... 28 Wolverhampton & Staffordshire Banking Co. v. Marston . . 520, 4 Wonham D, Machin . . 1031,3 Wontner v. Wright . 731, 750, 802 Wood, Exp. . . 383, 6, 504, 765 , ite . . . . 538, 9 V. Barker . 129, 130 -, — V. Bamicott . 1121 1). Ohurley . . . 581 0. Dixie . 519, 537 V. Downcs . 895 V. Harman . . . 1016 V. Heath . . 161 V. Nosworthy . . 1038 Digitized by Microsoft® TABLE OP CASES. I'AGE vxr.v. Wood v. Ordish . . 958, 9, 960 Wrixon v. Yhe 880, 911. 2, 3. 921 v. Petrie . . 659 Wroughton v. Colquhoun . . 298 V. Eowcliffe . 562 V. Turtle 662, 3, 734 i\ Surr 1004, 1017, 1076, 1099 Wrout V. Dawes 402, 857 I'. Vincent . 769 Wulfi'D. Jay . . . 1131 V. "Westall . . . 303 Wyatt 1). Barwell 109, 110 V. Williams 1005, 8 Wych v. Meal . . 1010 V. Wood . 140, 277, 1084 Wylde V. Radford . 312, 6 Woodall V. Smith 426, 517 Wyllie i: Pollen . . . 785 Woodburn v. Grant . 202, 592 Wyly, E.rj,. . 383 Woodcock V. Mayne . . 1095 Wynch v. Wynch . . . 877 Woodford v. Brooking . . . 1000 Wyndham v. Egreiuout V. Richardson . 647, 9 Woodgato V. Godfrey . . 464 . . 824 Woodham v. Baldook . . 517 Wynn Hall Coal Co., lie . . 357 Woodhead v. Turner . . 958 — V. Littleton 1005, 1036, 1049 Woodhouse v. Meredith 1048, 1053 Wynne v. Callander . . 901, 2 V. Murray . . 538, 541 V. Styan . 910 , 920, 1007 V. Woodhouse . 916 Wynter v. Bold . . 274, 5 Woodman v. Higgins 749, 750, 885 Wythe V. Henniker . 4! 2, 978, 989 Woods V. Huntingford . 966,7 Wythes r. Lee " . . 402,3 V. Hyde . ' . 249 V. Russell 433, 517 Woodward v. Haddon 799, 1009 Yalden, Exp. . . . 633 V, Woodward . 961 Yates V. Aston . 1, 736, 942 Woodyatt v. Gresley . 413, 6, 8 P. Bell. . . 483 Wookey v. Pole . 553, 585 v. Hambly 326, 931, 1006, 1011, WooUey v. Drag . 243, 796, 1111 1012, 1074, 1108 V. Jennings . . 166 V. Maddau 11 Woolstenoroft v. Woolstencroft . 939 V. Plumbe . 731, 1097 Worcester's (Earl of) Case 47 V. Railston . 602 Worcester Com Exchange Co., lie 767 Yea «.- Field . . 657, 853 Wordall v. Smith . 517 Yeatman v. Reed . 321 AVorks V. Harbly . . 848 Yellowly v. Gower . . 741 Wormald v. Maitland 110, 782 Yem V. Edwards . . 244 Wormley's Estate . . . 940 Yeomans v. Williams . . 1167 Worrall v. Harford 422, 633 Yescombe v. Lander . 66 V. Johnson . . 628 Yonge V. Pm-se . . 942 Worsley v. Earl Scarborough . 791, 2 York, &c.. Banking Co. c. Aitlcy 321 Worthington v. Jeffries . 79 — — V. Grindstone . . 598 1!. Morgan 401, 3, 778, Yorke, Ehp. . 392 780, 782, 856 V. Greenaiigh . . 598 Wortley v. Birkhead 372, 794, 813, Yonde r. Jones . 33, 1086 817, 8 Young, Exp. . . 392, 420 Wragg V. Denham 746, 1112, 4, 7 r. Billiter . 168 Wragge's Case . . 771 V. English . . U25, 812, 1117 Wreford, Ha^p. . . 542 V. Fletcher . 538, 541 Wrench v. Lord . . 664 V. Guy . . 657 Wride v. Clark . . 969 V. Hassard . 962 Wright, Exp. . 309, 385, 390 V. Kitchin . . . 618 He . . . . . 448 V. Lambert . 581 V. Callender . . 296, 7, 8 r. Tiindsay. . . 574 V. Campbell . . 550 V. Lord Watorpark . . 914 — P V. Dorchester (L ord) . 765 V. Moore . . . 700 V. Jones . 804 V. NeiU . . 603 V. Kirby . . 1031, 2 r. Peachey . . . 18 V. Lord Maidstone . 748 V. Roberts 264, 659 V. Monarch, &c. Soc. . 1064 V. Roebuck . . 127 V. Morley . 205 V. Ward . . 1015 — — •!;. Mudie . - . 629 V. Waud . . . 538 V. Pitt . . 319 V. Whitehurst . 325 V. Reed . . . 10 V. Young 807, 826, 862, 946 r. Rose . . 258 Younghusband v. Gisbome . . 63, 76 V. Russell . . . 1138 Ysabel . 567, 571 V. Snell . 601 V. Stanfield . . 88 Wrightson v. Hudson . . 113, 4 Wrigley r. Sykes . . . 290 Zodiac .... . 568, 604 g Digitized by A Microsoft® Digitized by Microsoft® A TEEATISE LAW OF MOKTGAGE. CHAPTEE I. INTBODUCTORY. A MORTGAGE has been defined to be a debt by specialty (a), Definition of secured by a pledge of lands, of which the legal ownership is vested ™° ^^^' in the creditor, but of which, in equity, the debtor and those claiming under him remain the actual owners, until debarred by judicial sentence, legislative enactment, or their own laches. It is a security founded on the common law, and perfected by a judicious and wise application of the principles of redemption of the civil law. This definition is not accurate, and indeed it has been found difficult correctly to define a mortgage, but for the ordinary pur- poses of conveyancers it has been considered as a pledge of real or personal estate evidenced by deed for securing the payment ' of money (6). A mortgage does not necessarily imply a debt by specialty, for if whether the mortgage contain neither covenant nor bond, a simple con- ^precon- tract will be raised by the advance made at the request of the ^^'^^ mortgagor (c) ; and there may be a charge upon property unac- companied by any personal liability, express or implied. An inquiry into the nature and practice of mortgages will lead General plan to the consideration of the origin and historical deduction of mort- ^°^ gages, their adoption by the common law, and the establishment of the equitable right of redemption. We shall be then led to inquire into the nature of an equity of redemption, its incidents and qualities, the division of the respective interests of the mortgagee and mortgagor in the land in pledge, into legal and equitable (a) Gallon v. Hancock, 2 Atk. 435. (c) Yates v. Astmi, i Q. B. 182, ct (*) Dav. Conv., vol. ii., p. 550, 3rd od. vii^c infra, p. 736. ■''^ B Digitized by Microsoft® 2 ORIGIN OF MDETGAGES. Chap. 1. estates, and the ultimate establishment in equity of an actual ownership in the mortgagor, susceptible of the like limitations and modifications of interest as the land itself. It will then be expe- dient to take into consideration certain compulsory modes, by which land may become a security for debt by statutory enactments, and afterwards to inquire into the different subjects and modes of mortgage. Our inquiry will subsequently lead to a considera- tion of the rights of parties entitled to the equity of redemption, the priority of incumbrances, of tacking, and the doctrine of notice as applied to mortgages ; and in conclusion, by what estate the mortgage debt must be discharged, of foreclosure, and of the several cases and authorities relating to devises of mortgaged lands, whether by the mortgagor or mortgagee. Origin of Preceding writers have traced high the origin of mortgages. moi gages. Pledges or pawns were probably known to the earliest nations (d). As soon as men recognise the rights of property, their necessities will suggest the idea of pledging that property, as the ready means of supplying their wants without departing with their absolute ownership. Their immediate personal property (e) may be the first objects of pledge ; afterwards articles of merchandise and barter ; and ultimately land. Mortgages of a peculiar nature are said to have been known amongst the Jews, from whom, according to the opinions of some writers, the notion of mortgaging lands had origin. Land could not, according to the Jewish law, be aliened beyond the next jubilee, which occurred every fifty years. The original owner might, at any time during the fifty years, redeem on payment of the value of the land, to be computed from the time of redemption to the next jubilee, and, at all events, when the day of jubilee arrived, the lands returned to the owner, discharged of the debt, and their loans were regulated accordingly. (xreeks and From the Jews, the idea of mortgages is supposed to have passed to the Greeks and Komans. Pledges and pawns were well known to the Eoman law. The Eoman hypotheca closely corresponds with our idea of a mortgage. The subject in pledge was retained by the debtor, and the creditor was, in default of payment, driven to his actio hypotheca/ria to obtain possession, and at any time before sentence the debtor might redeem (/). By that law, the {d) Mr. Ellis observes in his Journal Chinese cities as in London, of the Embassy to China, p. 157, that (e) Deut. chap. 24. pawnbrokers' shops are as mimerous in (/) Bac. Abr. Mortgage, A. Digitized by Microsoft® Bomans. Chap. 1. XOMIAXS. 3 debt was the principal, the security an incident, and when the one ceased, the other ceased also, and, until sentence, the ownership of the debtor was not displaced. Doubts are entertained whether mortgages were known to the Anglo-Saxons. Anglo-Saxons. We are in a great degree ignorant of the nature of their law of landed property. The most profound writers are at variance [g); the one side asserting the law of feuds or tenures to have been acknowledged; the other that it was not. But it seems to be admitted that a right of free alienation of property existed, which implies the right of mortgage or conditional sale ; and whether the feudal law was recognized or not, it is manifest that it was not admitted with the burthensome restrictions after- wards introduced by the Norman feudists (h), and which we may conclude to have been those generally submitted to by the Normans themselves, and other continental nations then acknowledging the feudal law. It is not highly improbable, that the Saxons might on their conquest have found traces of the civil law introduced by the Eomans during the long period of their possession, and have engrafted them on the principles of the feudal law as then acknow- ledged by themselves, and which had not then arrived at the full maturity it subsequently attained. After the Norman conquest, mortgages must, it should seem, Normans, have been for a time suspended. In the twentieth year of William's reign, and on the completion of Domesday-book, he summoned a meeting of all the principal landholders in London and Salisbury, and accepted from them a surrender of their lands, and regranted them on performance of homage and the oath of fealty. The mesne lords, on their subinfeudations, also demanded homage and fealty, and it was held that the bond of allegiance was mutual, each being bound to defend and protect the other. From this flowed the doctrine that the tenant could not transfer his feud without his lord's consent, nor the lord his seignory without his tenant's consent, although the tenants (even of the crown it should seem) might grant subinfeudations {i.e. to hold of themselves) with- out license. It was further held, that the tenant could not subject Originally his lands to his debts by execution of law, for, if he could, he might subject to have effected that circuitously which he could not by direct means ''®''*'- have accomplished. Nor, if the lands came to him by descent, could he alien them without the consent of the next collateral (g) AVnght's Ten. 47. (A) Soinn. Gavel. 87 ; Spel. Feuds, 21. B 2 Digitized by Microsoft® 4 Normans, OEIGIN OF MORTGAGES. Chap. 1. Statute of Quia Emp- tores. heir {i). By these restraints on alienation, mortgages of land must haye heen nearly extinguished {k). A further considerable obstacle to mortgages arose and long con- tinued from the prejudice of the times ; for in analogy to the Jewish law (l), which forbade profit to be made on the loan of money from Jew to Jew, but not so on a loan from a Jew to a stranger, it was held to be usury for Christians to lend money at interest {in), and (in case on inquest after death it was found that a man had died an usurer) the offence was punishable by forfeiture of his lands, goods, and chattels (n). The consequence was, that the Jews became the great money-lenders of Europe ; and in com- pliance with the subsisting prejudice, the common law of England held, that if lands were enfeoffed to the creditor, and the rents and profits were ad interim received by him, and not applied in reduc- tion of the principal of his debt, it was a species of usury which, although not prohibited by the king's court, was punishable by the forfeiture of the lands and chattels of the creditor, if he died pos- sessed of the pledge. And this, according to Glanville (o), was the original meaning of the term mortuum vadium, or mortgage, and not the meaning subsequently attached to the word by Littleton and others, as hereafter explained. The improving spirit of the age struggled hard against the fetters on alienation, and at length the statute of Quia Emptores Terrarum (p), passed in the reign of a monarch deservedly styled the English Justinian, gave a general license of free alienation to all, except the immediate tenants of the crown, at the same time that it abolished the power of subinfeudation ; thus at once sim- plifying the tenure, and giving freedom to the alienation, of the land of the realm. On the removal of the restrictions which impeded the circulation of landed property, mortgages became general. Of these we shall treat in the following chapters. Fines on alienation by tenants in capite were not abolished until the 12 Car. 2, c. 24, put an end to the remaining feudal burthens. (i) "Wright's Ten. 168. (i) "Feudalia, invito domino, ant agnatis, non reotfe sutjiciuntur hypo- ttecEe, quamvis fruotus posse esse, re- ceptum est." Corvin. 268. (I) Dent. chap. 23. (to) 3 Inst. 88 ; Glanv. lib. 7, cap. 16. (») When our old writers speak of an usurer, we must understand one who lent money at interest. It was not un- til the 37 Hen. 8, o. 9, that loans at interest were declared legal, if not ex- ceeding 101. per cent. (o) Glanv. De Leg, lib. 10, cap. 6, cap. 8. ip) 18 Edw. 1. ' Digitized by Microsoft® CHAPTER II. MOETGAGES AT COMMON LAW. Sect. 1. Vivwm vadium 2. Mortuum vadium 3. Conditions in Mortgages . 4. Tender of Mortgage Money 5. Performance of Condition 5 6 8 10 12 (1.) Vivum vadium. The common law recognised two kinds of landed security, viz., vivum vivum vadium and mortuum vadium. The vivum vadium and also mor^m^ the mortuum vadium (according to Glanyille), as at first known, ^a*"™- were determinable or base fees, with a right of reverter in the feoffor and his heirs, on the payment of a given sum. The mortuum vadium, or mortgage ultimately known at the common law, was an absolute fee, with a condition annexed, making void the feofi'ment on payment of a given sum, which the common law allowed, if reserved to the feoffor or his heirs. The difference between the estates was striking. In the first instance the creditor took an estate, which, as soon as his debt was satisfied, ipso facto ceased, and the feoffor might re-enter and maintain ejectment ; in the latter instance the feoffee took the whole estate, subject to be defeated, but which, on the non-fulfilment of a certain engagement, became his own by an indefeasible title. In the first case the defeasibility was an inherent quality of the estate ; in the other case the determination was collateral to it. The vivum vadium consisted of a feoffment to the creditor and Vivum his heirs, until out of the rents and profits he had satisfied himself his debt ; the creditor took actual possession of the estate, and received the rents, and applied them from time to time in liqui- dation of the debt. When it was satisfied, the debtor might, as before observed, re-enter and maintain ejectment ; and it is said to Digitized by Microsoft® MOETGAGES AT COMMON LAW. Chap. 2. have been called vivum vadium because neither debt nor estate was lost. This mode of security was probably never general : it is ill adapted to the purpose of a pledge, whose object is the repayment of the loan in one entire sum at a given time, and not a repayment by small instalments, which in fact is eating out the debt piece- meal : and it seems now to have entirely ceased. A security in Compared with land, bearing a remote resemblance to the vivum vadium, may be mortgage. considered as subsisting under the appellation of Welch mortgage ; but there is this distinction between the securities, viz., that in the vivum vadium the rents were applied in satisfaction of the princi- pal, and in Welch mortgages they are received in satisfaction of the interest, while the principal repiains undiminished. In one respect they agree — ^the estate is never forfeited. The Welch mortgage seems in fact pretty closely to resemble the ancient mortuum vadium (a). (2.) Mortuum vadium. The mortuum vadium, or mortgage, is mentioned by Littleton, Coke, and others, as so called because on breach of condition the estate was rendered indefeasible in the mortgagee, and absolutely lost to the mortgagor. In this light it is placed by Lord Coke, in contradistinction to the vivum vadium, and such seems to be the Glanville. opinion generally adopted. But Grlanville, as has been observed (6), gives a different meaning to the origin of the term. He says, "Mortuum vadium dicitur illud cujus fructus vel redditus interim percepti in nullo se acquietant ; " and applies it to the before men- tioned species of usury at common law, viz., a feoffment to the creditor and his heirs, to be held by him until his debtor paid him a given sum, and until which he received the rents without account, so that the estate was unprofitable or dead to the mortgagor in th6 mean time ; and the exposition given by Glanville seems the more sound, as it was rendered at a very early period of our history, and while yet the fetters on alienation were unremoved. We may therefore consider the vivum vadium to have implied a security, by which the rents of land were from time to time applied in reduction of the principal of the debt ; and the mortuum vadium to (a) In a Welch mortgage there is no contract express or implied between the parties for the repayment of the money, and the mortgagee cannot fore- close or sue for the money, though the mortgagor and his heirs may redeem at any time. Howell v. Price, Free. Oh. 423, 477, and Zonguet v. Seawen, per Lord Hardwicke, 1 Ves. S. 405. (6) Lib. 10, cap. 6. Digitized by Microsoft® Sect. 2. MOETUUM VADIUM. have originally implied a security, by which, until payment of a given sum, the rents of land were ad interim lost to the owner, and received by the creditor and unaccounted for, so that the debt remained undiminished, which was at common law, as before remarked, in the event of the creditor dying possessed of the pledge, punishable as usury ; and it must be observed, there was the like advantage, in one respect, to the debtor in this form of mortgage, as in the vivum vadium, viz., that the estate was never lost. There is no trace of the period when this mode of mortgage fell into disuse. In its stead arose the mortuum vadium, or mortgage, afterwards so well known at common law, and thus described by Littleton (c). " Item ; if a feoffment be made upon such condition, Littleton, that if the feoffor pay to the feoffee at a certain day, &c., forty pounds of money, that then the feoffor may re-enter, &c. In this case the feoffee is called tenant in mortgage, which is as much as to say in French, come mortgage, and in Latin, mortuum vadium. And it seemeth that the cause why it is called mortgage is, for that it is doubtful whether the feoffor will pay, at the day limited, such sum or not ; and if he doth not pay, then the land, which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so dead to him upon condition, &c. ; and if he doth pay the money, then the pledge is dead as to the tenant, & c." It is somewhat singular that Littleton should not refer to the explanation of the term as rendered by Glanville; and we may conclude that the original mortuum vadium had by this time totally fallen into disuse and become obsolete. The mortgage described by Littleton was strictly an estate upon condition, that is, a feoffment of the land was made to the creditor, with a condition in the deed of feoffment or in a deed of defeazance executed at the same time (for the common law does not allow a feoffment to be defeazanced by matter subsequent), by which it was provided, that on payment by the mortgagor or feoffor of a given sum at a time and place certain, it should be lawful for him to re-enter. Im- mediately on the livery made, the mortgagee or feoffee became the legal owner of the land, and in him the legal estate instantly vested, subject to the condition (d). If the condition was per- (c) Sec. 332. estate in him." This is a mistake ; the (d) In 5 Bac. Abr., Mortgage, it is legal estate instantly vests in the mort- stated that "the mortgagor before for- gagee, subject to be defeated on per- feiture, and whilst it remains uncertain formance of the condition by the mort- whether he will perform the condition at gagor. the time limited or not, hath Ihe Ifgal Digif^ed by Microsoft® MOETGAGES AT COMMON LAV. Chap. 2. formed, the feoffor re-entered and was in of his old estate, para- mount to all the charges and incumbrances of the feoffee, whether in the Per or in the Post (e), or in other words, above all persons, ■whether claiming through the feoffee, as heir, widow, or purchaser, or paramount, or collaterally, to the feoffee, as the lord by escheat and the husband by curtesy. If the condition was broken, the feoffee's estate was absolute and his estate was indefeasible, and all the legal consequences followed as though he had been absolute owner from the time of the feoffment. But untU breach of con- dition, possession was not in general given, which was a further distinction between this mode of mortgage and the vivum vadium and old mortuum vadium. And in order to protect the mortgagor from the eviction of the mortgagee, to which he was become liable, a proviso was inserted, declaring, that until breach of condition the mortgagor might hold the estate ; and on the other hand, the mortgagor engaged, that in such event he would do all lawful acts for further assurance. Although the common law did not favour conditions, but re- quired strict performance of them (/), yet it was in certain cases satisfied with the performance of the intent of the condition (g), though not performed in words ; and although a difference was taken [h] between conditions to preserve and conditions to destroy an estate, the former being allowed to be performed as near the condition as could be, and the latter being strictissimi juris, yet conditions in mortgages, the performance of which, in fact, de- stroyed the estate of the mortgagee, were favoured in the eye of the law, and rather considered as belonging to the class of conditions for preserving estates. (3.) Conditions in Mortgages. The general rules at common law regulating the performance of conditions in mortgages were as foUow : — If time and place were appointed for payment of the money, tender must be made accordingly ; but if no place were appointed, then (the money being a sum in gross, and collateral to the title of the land) the mortgagor was bound to seek the mortgagee and (c) Go. Litt. 239, a. {g) Shep. Touch. 139. (/) lb. 205, a. ^/^) Co. Litt. 206, a. Digitized by Microsoft® Shot. 3. CONDITIONS IN MORTGAGES. .9 tender him the money personally, if within the realm, and it was not sufficient to tender it on the land (i). If no time were appointed, the mortgagor had his whole life for payment of it (fe). If no time were appointed, and the condition were, if the mort- gagor (without mentioning heirs, &c.) pay 101. to the mortgagee, and the mortgagor died without paying it, the condition was broken, and the estate absolute {I). But if a time had been appointed, and the condition had been, that the mortgagor (without more) should pay to the mortgagee lOZ., and the mortgagor died before the day (m), then his heir, executor, or administrator, or the guardian of the heir, might tender the money at the time, and save the condition. If the words of the condition were for payment unto the feoffee or his heirs («), the money could not be paid to the executor or the assign ; if " to heirs or assigns," and the mortgagee transferred the mortgage to another, it might be paid to the first or second feoffee (o) ; or if the first feoffee was dead, to his heirs, but not to his executors (p) ; for the law will never seek an assign in law, where there is one in fact (q) ; if "to heirs, executors, or assigns," it might be paid to either (r). If the condition was for payment by the mortgagor and I. S. (s), payment by I. S. alone, after the death of the mortgagor, was good ; but not during his life. In equity the tender must be made to the persons entitled to receive the money and re-convey the estate, and, if the legal and partial beneficial interest is united in one of such persons, he cannot demand payment to himself on his separate receipt (t). Where the money is payable six months after the death of A., Time of pay- there is no remedy before that period (u). ™^" ' Where a loan is made for six or nine months, the option is in Option, the borrower (a;). It was customary to specify in mortgages the place and hour of (i) Co. Litt. 210, b. (r) lb. (k) lb. 208, b. (s) Shop. T. 141. {I) Litt. s. 337. W Cliffy. Wadsworth, 2Y. & C. C. C. (m) lb. 334. 598. (n) 5 Co. 96, Co. Litt. 210. (u) Brougham v. Squire, 1 Drew. 151. (q\ /j (a;) Seed y. Kilbum, (!;c. Co., 10 L. R. {p) 5 Co. 97, Dy. 180. Q. B. 264. (j) Co. Litt. 210. Digitized by Microsoft® 10 MORTGAGES AT COMMON LAW. Chap. 2. payment of the mortgage money, but, as nothing is gained by it, the practice has been discontinued [y). (4.) Tender of Mortgage Money. The mortgagor might tender the money on the appointed day, at any convenient time in which the money might be counted before sunset {z). And he might pay it tied up in bags, and it was at the peril of the mortgagee to miscount it (»). And even if part of the money were counterfeit coin, and the mortgagee accepted it, it was a good performance (6), though the mortgagee in such case might have relief by an action of deceit, or other action (c). A doubt was formerly entertained, whether a tender in Bank of England notes (although a good ground for equitable relief) was a tender, at law to save the condition because, although the Legislature had enacted that, on tender of bank notes in satisfaction of a debt and refusal by the creditor, the debtor should not be held to special bail {d) ; yet the creditor might have proceeded against him by action at law. And although the debtor might on action brought pay the money into Court, and thus stop the course of the action (e) ; yet he was liable to costs up to that time : and it therefore seemed that a tender in bank notes (if objected to by the creditor (/) ) was not such a tender as would save the condition (g). Bank of A statute (h) removed this doubt ; and now a tender of a note of Eng an no es. ^j^^ Bank of England is a legal tender for all sums above 51., on all occasions ; but such notes are not a. legal tender by the Bank of England, or any branch bank thereof. But the governor and company thereof are not to be liable or be required to pay and satisfy, at any of their branch banks, notes of the company not made specially payable at such branch bank, although they are liable to pay and satisfy at the Bank of England in London, all notes of the company or any branch bank. (j/) 2 Dav. Conv. 578, Srd ed. (/) Avsten v. Exeaiiors o/Dodwell, 1 (a) 1 Selw. N. P. 187, 13tli ed., Eq. Ca. Abr. 318 ; Wright v. Beed, 3 Wade's case, 5 Co. 115. T. R. 554 ; and vide Biddulpk v. St. (a) lb, , and see Suckling v. Coney John, 2 Sch. & Lef. 534. Noy, 74; Alexander v. Brovm, 1 Carr. (ff) Shep. T. 136. & P. 288. (A) 3 & 4 Wm. 4, c. 98, s. 6, in Eng- (J) Bac. Abr. Tender, B. land, but not in Scotland, 8 & 9 Vict. (c) Shep. T. by Prest. 136, note, 143. c. 38, s. 15, or in Ireland, ib., c. 37, (d) 37 Geo. 3, c. 91, s. 8. s. 6. (c) 52 Geo. 3, c. 50. Digitized by Microsoft® Sect. 4. TENDER OP MORTGAGE MONEY. 21 Where a loan of money is made in England of English money, Payment in the sum to be paid is English currency, and the debt wiU carry 7g^f ''"" English interest, and a creditor will have a right to receive payment in England, although the loan is secured by a bond executed in Ireland for so much " lawful money of Great Britain," and by a judgment entered up there ; and, consequently, the debt must be calculated as payable in England, without regard to the exchange between the two countries (i). In like manner in Lansdowne v. Lansdoicne {k), even a charge under a power on Irish estates of a jointure of 3000Z. "of lawful money of Great Britain," was held payable in English, not Irish currency; and in Phipps v. Lord Anglesea, a portion of 12001. "English money" was held payable in England, because there the settlement was made, and there the parties resided ; and the charge being a sum in gross, and not a rent-charge issuing out of land (Z). In a case where, prior to the act assimilating the currency of Great Britain and Ireland (m), a settlement was executed in England, by which, after reciting an agreement by the gentleman to charge his Irish estates with payment of lOOOZ. jointure for the lady, he charged the estates with lOOOZ. " sterling lawful money of Ireland," it was held that the lady was entitled to lOOOZ. sterling English money on the strength of the recital, and of the fact of there being no legal Irish currency except copper (n). A charge by deed of 5000Z. of lawful money of Ireland, was payable in Irish currency, i.e. British currency with a deduction of one-thirteenth (o). The 6 Geo. 4, c. 79, has been repealed by the Coinage Act, 1870 {p), 33 Vict. c. 10. which declares what shall be a legal tender {q), and that payments under all contracts shall be made according to the Act, unless the contract is made according to the currency of some " British pos- session " (defined s. 2) or some foreign state (r). (i) Nod V. Eochfort, 10 Bl., N. S. V. C. Wood ; see Scott y. Sevan, 2 B. & 483 ; 4 CI. & F. 158. Ad. 78 ; 3 Burge, C. of L., 824, and see (k) 2 Bl. 60. Yates v. Maddan, 16 Sim. 613, reversed (I) Vin. Abr. 208, tit. Condition. on another point, and 3 Mac. & G. 532, (m) 6 Geo. 4, c. 79, repealed 33 Viet. and He Boate, 10 Ir. Oh. 164. c. 10. (?) 33 Vict. c. 10. (n) Cope V. C, 15 Sim. 118. (?) Sect 4. (o) Bourne v. Hartley, 18 Jur. 532, (r) Sect. 6. Digitized by Microsoft® 12 MOETGAGES AT COMMON LAW. Chap. 2. (5.) Performance of Condition. Substantial performance of the condition is sufficient. It was held, that if an account were stated between the parties, and the balance paid (s), or if a new security were taken by bond or statute (t), it was a good performance of the mortgage condition. " And so in most cases, where by a condition a thing is to be done one way, and to be done to the party to the condition himself, and not to a stranger, and he doth accept it another way, this is a good performance of the condition, volenti non fit injuria (m) ." Thus the condition is well performed by a payment accepted by the creditor, though it were made before the day fixed by the condition {x). The law was stricter when the condition was to be performed to a stranger, or to affect the rights of third persons {y). Thus it was adjudged (s), that if the mortgagee before transfer or assignment received the money, and returned the whole or part to the mortgagor, it was a good performance of the condition ; but where the con- dition was for payment to the feoffee, his heirs, or assigns (a), and the feoffee transferred the mortgage and died, and the mortgagor paid the money to the heir of the first mortgagee, who returned part, this was held no good performance to divest the lands from the alienee, or to injure the rights of third persons. If, at the appointed day, legal tender of the money was made and refused, or no person was ready to receive it, the condition was satisfied, and the mortgagor or his heirs might re-enter (6). But here a distinction was taken between a sum by way of gift secured on land, and a debt (c). The former was in such ease absolutely lost, but the latter was considered as still subsisting as a personal duty, and might be recovered by action at law. See further as to tender, inf., p. 885, 1088. It must be further remarked, this right of re-entry on performance of the condition was neither alienable nor devisable (d), and could be reserved only, as before-mentioned, to the feoffor or his heirs. . (s) Co. Litt. 213. 41 Eliz. B. R. (t) lb. 212. (a) OoodalVs case, 5 Co. 96. (m) Shep. Touch. 143. (j) Dy. 181 ; Co. Litt. 209. (a;) Bwrgaime v. Spurting, Cro. Car. ((,) 5 Bac. Abr. Mtge. D.; Co. Litt. 283. ■ 209, b. (y) 5 Co. 96 ; Cro. Eliz. 383 ; Moor, (rf) ged nunc vide 1 Vict. c. 26, s. 3, 708 ; Co. Litt. 209, b. and qucere, if within this Act. {z) Powell Y. Bartholumeto, Mich. 40, Digitized by Microsoft® Sect. 5. PEEFOEMANCE OP CONDITION. 18 Thus mortgages stood at common law, incumbered with the system from which they originated, and attended with ruinous con- sequences to the unfortunate debtor ; and it is difficult to conceive, if the Courts of law had been so inclined (which it does not seem they were), on what principle they could have proceeded in giving the debtor relief. The forfeiture was complete ; the mortgagee, by the default of the mortgagor, had become the absolute owner of the estate ; it could not be divested from him without a reconveyance, and there remained no remedy short of an actual legislative enact- ment, without disturbing the settled land-marks of property (e). Happily a jurisdiction was arising, under which the harshness of the common law might be softened without an actual interference with its principles, and a system established at once consistent with the security of the creditor, and a due regard for the interests of the debtor. It may under this head be lastly remarked, that at the present day, if the condition, instead of determining the estate of the mort- gagee, be, that on payment, &c., the feoffee, &c. shall reconvey or re-assign the estate, there, notwithstanding the performance of the condition by payment within the appointed time, an actual recon- veyance or re- assignment will be necessary. (e) Notwithstanding the rigour with their times, that the law was opposed to which the common law punished the the better feelings of the people, and breach of the condition, yet it is clear that a considerable degree of obloquy from the concurrent testimony of all our attended those who took advantage of old dramatic writers, the chroniclers of it. Thus in Beaumont and Fletcher : Alathe.—ThoTi hast undone a faithful gentleman, By taking forfeit of his land. Algripe. — I do confess. I will henceforth practise repentance. I wiU restore all mortgages, forswear abominable usury. The Night Walker, or Little Thief. Digitized by Microsoft® CHAPTEE III. MOETGAGE, WITH EQUITY OF EEDEMPTION. Sect. 1. Civil law followed .14 2. Collateral advantage cannot be obtained. . . . 16 3. Parol evidence of right to redeem. . . .18 4. Bight of preemption 20 5. Conditional purchase distinguished from mortgage . 20 6. Conditional satisfaction of mortgage . . . . 23 7. Instalments ........ 23 8. Defeasible purchase distinguished from mortgage . 24 9. A mortgage must be mutual . . . . .26 10. Conversion into mortgage by agreement subsequent . 28 11. The result of cases 30 (1.) Civil law followed. It has been already said, that, by the civil law, the debtor might redeem the estate on payment of his debt at any time before sentence passed. It has been seen how decidedly opposed to this is the doctrine of forfeiture at common law. The absolute forfeiture of the estate, whatever might be its value, on breach of the condition was, in the eye of equity, a flagrant injustice and hardship, although perfectly accordant with the system on which the mortgage itself was grounded. No wonder then that our Courts of equity, founded on the principles of the civil law, should, as they increased in power, attempt, by an introduction of those principles, to moderate the severity with which the common law followed the breach of the condition. .They did not indeed make the attempt of altering the legal effect of the forfeiture at common law ; they could not, as they might have wished, in conformity to the principles of the civil law, declare that the conveyance should, notwithstanding forfeiture committed, cease at any time before sentence of foreclosure, on payment of the mortgage-money ; but leaving the forfeiture to its legal consequences, they operated on the conscience of the mortgagee, Digitized by Microsoft® Sect. 1. CIVIL LAW FOLLOWED. 15 and acting in personam and not in rem, they declared it un- reasonable that he should retain for his own benefit, what was intended as a mere pledge ; and they adjudged that the breach of the condition was in the nature of a penalty, which ought to be relieved against, and that the mortgagor had an equity to redeem on payment of principal, interest, and costs, notwithstanding the forfeiture at law. Against the introduction of this novelty, the Judges of common law strenuously opposed themselves ; and though ultimately defeated by the increasing power of equity, they nevertheless in their own Courts still adhered to the rigid doctrine of forfeiture, and in the result the law of mortgage fell almost entirely within the jurisdiction of equity. There is no record of the time when this equity was first granted. In the cases of Wade {a) and Goodall (b), which were decided towards the end of the reign of Queen Elizabeth, the parties do not seem to have entertained the idea of any remedy existing for the mortgagor's relief, if the forfeiture was established at law ; although Tothill mentions a case in the 37th year of Eliz. (c), in which the equity was decreed ; and it must soon after this time have been generally in practice ; for there is a case decided in the first year of Charles the First (d), in which the doctrine seems fully admitted. It was a question as to a mortgage term ■which had been forfeited by non-payment according to the condition ; and the Court held, that although the money was not paid at the day, but afterwards, yet the term ought to be void in equity, as well as on a legal payment it would have been void at law. In the intermediate reign of King James the First, the Courts of equity became established in power, and the same period may be reasonably assigned as that in which the doctrine of equity of redemption was fully recognised. No sooner, however, was this equitable principle established, than the cupidity of creditors induced them to attempt its evasion, and it was a bold but necessary decision of equity that the debtor could not, even by the most solemn engagements entered into at the time of the loan, preclude himself from his right to redeem ; for in every other instance probably, the rule of law, modus et con- ventio vincunt legem, is allowed to prevail. In truth it required all the firmness and wisdom of the eminent Judges who successively (a) 5 Co. 115. (d) Einanuel College v. Evans, 1 Rep. (6) lb. 96. in Ch. 10. (c) LaTvgford v. Barnard, Tothill, 134. Digitized by Microsoft® 16 • MOETGAGE, "WITH EftUITY OP EEDEMPTION. Chap. 3. presided in the Courts of equity, to prevent this equitable juris- diction being nullified by the artifice of the parties. (2.) Collateral advantages cannot be obtained. But those Courts, looking always at the intent, and not at the form of things, disregarded all the defences by which the cre- ditor surrounded himself, and laid down as plain and undeviating rules (/), that it was inequitable the creditor should obtain a colla- teral or additional advantage through the necessities of his debtor, beyond the payment of principal, interest, and costs ; and they esta- blished as principles not to be departed from, that once a mortgage always a mortgage ; that an estate could not at one time be a mort- gage, and at another time cease to be so, by one and the same deed ; and that a mortgage could no more be irredeemable than a distress irrepleviable ; that the law will control even an express agreement of the parties, and, by the same reason, equity will let a man loose from his agreement, and even against his agreement, admit him to redeem a mortgage (/) ; and that whatever clause or covenant there may be in a conveyance, yet if upon the whole it appear to have been the intention of the parties that such conveyance shall only be a mortgage, or pass an estate redeemable, a Court of equity will always construe it so {g). Acting on these principles, they decided that no condition could be valid restricting the right 6i redemption within a given or limited time, as in Kelvington v. Gardiner (h), where the right of redemp- tion was attempted to be confined to the lifetime of the mortgagor ; and in Newcomb v. Bonha/m (i), where the like attempt was made. And although the decree for redemption made by Lord Chancellor Nottingham in the last mentioned case was ultimately reversed by Lord Keeper North, yet that was done on a principle which will be hereafter explained {k), and does not at all militate against the general principle above stated. (e) Newcomb v. Bonham, 2 Vent. Ves. 265, 273. 364 ; 1 Vem. 7, 214, 233 ; Sowa/rd v. (/i) Kelvington v. . Oardiner, cited 1 Harris, 1 Vem. 192 ; Jason v. Eyre, 2 Vern. 192, et vide Spurgeon v. Collier, Ch. Ca. 33. 1 Ed. 55. (/) 1 Vem, 192, et vide East India (i) Newcomb v. Bonham, 1 Vem. 7, Compamy v. Atkyns, Comyns, 349, where et vide Jason v. Eyre, supra ; Price v. arguendo it is said, equity will relieve, Perrie, 2 Freem. 258 ; Goodman v. even if the mortgagor take his oath not Grierson, 2 Ball & Be. 278. to redeem. (i) Inf., p. 27. ig) 5 Bac. Ahr. 5. Seton v. Slade, 7 Digitized by Microsoft® Sect. 2. RESTEICTION OF REDEMPTION ILLEGAL. I7 Nor did the attempt better succeed to confine the right of re- demption to a particular line or class of heirs : for where a man To particular having mortgaged his lands (Z), amongst which were estates, which after marriage had been limited by way of additional jointure to his wife, and the proTiso was that, if the mortgagor, or the heirs male of his body, should pay, &c., then he or they might re-enter ; and he coTenanted that no one but himself, or the heirs male of his body, should be admitted to redeem ; the jointress, after the death of her husband without issue, filed her bill to redeem, and it was decreed, notwithstanding an attempt made by the mortgagee to support the agreement on the pretence that he had purchased the estate from the father of the mortgagor, who was tenant for life only, and had afterwards been evicted by the mortgagor as tenant in tail male, and that the intention was, if the mortgagor had no issue male, to make the mortgagee some compensation for his loss, but of which understanding between the parties no proof was adduced. The report of the above case states, that the Lord Keeper in decreeing redemption, added, he did so the rather, because the defendant had a covenant for the repayment of his money, and Covenant for therefore it was in the power of the mortgagee to have made it a mortgage at any time, which would bring it within another rule hereafter mentioned (m), viz., that a mortgage cannot be a mortgage on one side only, but must be mutual. It is, however, clear, that the omission either of a bond or covenant, which are collateral securities creating a personal obligation on the mortgagor, will make no difference in the right to redeem, for (n) every loan implies a debt ; and the right to redeem proceeds on the principle before stated, viz., that a creditor shall not obtain an advantage by his security beyond his principal, interest, and costs. The bond or covenant may tend to explain a transaction and show the intention of the parties in a doubtful case to create a mortgage ; it may be good matter of evidence ; but neither of them is a necessary ingredient in the creation of mortgage ; for, to apply the remedy, equity only requires to be satisfied that the conveyance was originally intended as a security for the payment of a sum of money, whatever form the security may take. {1} Howard v. Harris, 2 Ch. Ca. 147 ; (n) 1 P. "Wins. 271 ; 2 Atk. 496 ; 1 Vem. 33, 190 ; 2 Freem. 86. King y. K., 3 P. Wms, 358. (m) Infra, p. 26. Digitized by Microsoft® " 18 MOETGAGB, "WITH EQUITY OF REDEMPTION. Chap. 3. (3.) Parol evidence of right to redeem. Accordingly equity will admit even pm-ol evidence to show that the conveyance was intended by way of security only (o). A case decided by Lord Chancellor Nottingham is one of frequent reference (p). A man agreed to lend money on mortgage, and it was proposed, as was formerly practised, that the mortgagor should execute an absolute conveyance, and that there should at the same time be a deed of defeazance from the mortgagee. The mortgagor executed the conveyance, and then the mortgagee refused to execute the defeazance. Lord Nottingham (after the Statute of Frauds) admitted parol evidence to show the agreement, and decreed against the mortgagee {q). So Lord Hardwicke says (r), " Suppose a person who advances money should, after he (the mortgagor) has executed the absolute conveyance, refuse to execute the defeazance, will not this Court relieve against the fraud ? " Again, in another case (s), he ex- pressly recognises the same doctrine, and in Joynes v. Statham (t), the Lord Chancellor observed, " Suppose an agreement for a mortgage drawn by the mortgagee, the mortgagor being a marks- man, and the mortgagee omit to insert a covenant for redemption, and then brings a bill to foreclose, shall not the mortgagor be at liberty in this Court, upon reading evidence, to shew the omission ? " So where (m) an absolute conveyance is made for a certain sum of money, and the person to whom it is made, instead of entering and receiving the profits, demands interest for his money and has it paid him, this will be admitted to explain the nature of the con- veyance ; and if the conveyance be absolute, and a suit be brought to redeem, and the defendant swear it was an absolute purchase ; nevertheless parol evidence will be admissible to shew the contrary (x). And an indorsement on the deed of conveyance, (o) Englwnd v. Codrington, 1 Ed. 169 ; v. Parker, 2 Ves. S. 225. , VerTwn v. Bethell, 2 ib. 110 ; Reeks v. (s) Youmg v. FeacJiey, 2 Atk. 257. PostUthwaite, Q. Coop. 161 ; Sodel v. (<) 3 ib. 387. Eealey, 1 V. & B. 6iG. (u) Maxwell v. Montacute, sup. ; {p) Sir a. Maxwell v. lady Mania- Oard v. Jeffray, 2 Sch. & Lef. 374; cuU, Preo. Ch. 626. Cripps v. Jee, i Bro. C. C. 471 ; Lord (2) See also Lincoln v. Wright, 4 De Irnfiam v. Child, 1 ib. 92 ; but sea G. & Jo. 16 ; Gordon v. Selby, 11 Bl. N . S. Lord Portmorc v. Morris, 2 ib. 218. 351 ; Haigh v. Kaye, 7 Ch. 469 ; Booth {x) Frmklyn v. Fern, Barnard. 30 ; T. Twrle, 16 Eq. 182, V. C. Malins. WhUfield v. Parfiit, 4 De 6. & Sm. 240, (r) Walker v. JV., 2 Atk. 99 ; Dixon 15 Jur. 852. Digitized by Microsoft® Sect. 3. PAEOL EVIDEXCE. jo signed by the mortgagor only, is evidence to shew the intent (y) ; Absolute as is also a note in writing signed by the parties {z) ; but in an treated*as^ instance where an absolute conveyance for 80Z. was made, and on ■""■^e^gfi. bill filed to redeem the defendant by his answer insisted, that it was intended to be ^n absolute conveyance without proviso and condition for redemption, but admitted that it was in trust after payment of the 80Z. and interest for the plaintiff's wife and children, but no such trust was declared by writing ; the plaintiff insisted, that, as the defendant had confessed he was not to have the estate absolutely and had not proved the trust, he, the plaintiff, was entitled to redeem. The Court, however, decreed the trust for the benefit of the plaintiff's wife and children (a). In a case, where husband and wife had made an absolute conveyance of the wife's real estate by way of sale with fine, and, from subsequent deeds between the same parties, an inference might have been drawn that the original deeds were intended by way of mortgage, and there was a direct recital of the fact in one of the deeds produced from the possession of the party claiming as purchaser ; still as there was no other direct evidence, and that deed was not signed by such party, and a great lapse of time had intervened, and the witnesses were all dead, the Court refused to interfere on behalf of the heir of the wife, who claimed to redeem alleging that the effect of the deeds had been only to pass an absolute estate during the life of the husband (b). In the case of a conveyance, which was absolute on the face of it but of which the consideration was in fact a sum paid to the grantor's creditors, on a bill filed for a reconveyance, the grantee claimed the benefit of the securities as mortgagee, the Court held that the grantee had mixed up the character of trustee, mortgagee, and agent, and decreed an account, without allowing interest on either side, and, although a small balance was found due to him, yet, on further directions, the Court refused to allow him interest on it, and decreed a reconveyance and payment of the balance then become due from him, and, he having lost some of his vouchers, refused him the costs of taking the account (c). Nor will the Courts permit the mortgagee to clog the equity of Bye redemption with any bye-agreement (d), so as to gain an undue i^gaT advantage. Thus in a case, in which money was lent on mortgage {y) Franklyn v. Fern, sup. (b) Tull v. Owen, 4 Y. & C. 192. (z) Clench v. Witherley, Finch, 376. (c) Price v. P., 15 L. J. Ch. 13. (a) Hampton v. Spencer, 2 Vein. 288. (d) Jennings v. Ward, 2 Vern. 520. Digitized by Microsoft® c 2 20 MORTGAGB, WITH EQUITY OF EEDBMPTION. Chap. 3. at 61. per cent., and by a separate deed the mortgagor covenanted to convey to the mortgagee, if he (the mortgagee) thought fit, ground-rents at twenty-years' purchase to the value of 16,000Z., on bill filed to redeem on the usual terms of payment of principal, interest, and costs, the defendant insisted on the agreement, but the Master of the Eolls decreed according to the prayer of the bill. (4.) Right of Pre-emption. So careful is equity to protect the debtor against the oppression of his creditor, that it will not allow the mortgagee to enter into a contract with the mortgagor, at the time of the loan, for the abso- lute purchase of the lands for a specific sum, in case of default made in payment of the mortgage-money at the appointed time, justly considering that it would throw open a wide door to oppres- sion, and enable the creditor to drive an inequitable and hard bargain with the debtor, who is rarely prepared to discharge his debt at the specific time (e). But we must be careful to distinguish between the last men- tioned rule and a case with which it may be confounded, viz., an agreement by the mortgagor, in case of sale, to give the mortgagee a preference of pre-emption, which, if claimed within a reasonable time, will be enforced (/). And although at first view this may seem to be within the objection raised by equity, viz., that of giving the creditor a collateral advantage over and above his prin- cipal and interest, yet on closer inspection it will be found clear of the rule. The option of sale is still left with the mortgagor ; he may redeem or sell, nor is he tied down to price; all that is stipulated for is, that, if he thinks fit to sell, he shall give the mortgagee the refusal. In Willett v. Winnell (e), and Bowen v. Edwa/rds (e), the sale was compulsory and the price stipulated. Eights of pre-emption, however, are construed strictly (/). (5.) Conditional Purchase distinguished from Mortgage. The rule must be further distinguished from the cases in which the Courts have considered the agreement not to amount to a mortgage, but to be a conditional purchase, ia which instances the (c) Pjice T. Feme, 2 Freem. 258 ; 24 ; 9 Mod. 2 ; re Edwards, 11 Ir. Ch. Willett V, Winnell, 1 Vern. 488 ; Bowen E. 367. Vide Dawsimy. D., 8 Sim. 346 ; V. Edwards, 1 Rep. in Ch. 221. Coolcson v. C, ib. 529. (/) Orhyx. Trigg,2'E. B. 123. ig) Sterne v. Beck, 32 L. J. Ch. 682 ; {k) 2 Dav. Conv. 594, 3rd ed. Digitized by Microsoft® 24 MORTGAGE, "WITH EQUITY OF EBDBMPTION. Chap. 3. during the life of the mortgagor is binding, though the interest falls in arrear (l) ; but, in settling such an agreement, the Court will insert a condition that the interest shall have been punctually paid, and, if leasehold, that the covenants have been performed (m). (8.) Defeasible purchases distinguished from mortgages. A further distinction, respecting which the authorities do not seem to be very clear, has been also made between mortgages and defeasible purchases (as they are called) subject to repurchase within a limited time, where the interest is taken by way of rent-charge ; for it is said, that in the latter cases the stipulations made between the parties must be strictly adhered to, or the estate of the grantee wiU become absolute. The cases on which this doctrine rests are Floyer v. Lavington (n), and Mellor v. Lees (a). In Davis v. Thomas (p), the mortgagor released to the mortgagee his equity of redemption, and the mortgagee granted him a lease for ninety-nine years determinable on lives at a rent, vsdth a pro- viso, that, if he paid the rent regularly, he might redeem within five years, and in default the agreement was to be void; it was held the privilege of redemption was lost, on non-payment of the rent at the periods fixed for that purpose. In these cases, the absence of a covenant to pay was deemed explanatory of the intention, and a trust deed for creditors, in consequence of such absence, was held not to be a mortgage entitling the creditors to foreclosure or sale (g). It will be safer to consider these cases as decided on the special circumstances attending them, than as establishiug a general prin- ciple for the decision of other cases. The Courts lean strongly against contracts of this kind, where the power of repurchasing is given at the same time and con- comitantly with the grant of the annuity or rent-charge, and en- deavour, if possible, to treat them as cases of redemption. Per {1} Swrowes v. Molloy, 2 Jo. & Lat. Birch, 10 Bl. N. S., 241 ; Williams 521. V. Owen, 5 My. & Or. 303, reversing 10 (m) Seaion v. Twyford, 11 Eq. 591, Sim. 386 ; Saiiit John v. Wareham, V. C. Bacon. cited 3 Sw. 631. (to) 1 P. "Wms. 268. (g) Taylor v. Emerson, i Dr. & "W. (o) 2 Atk. 494. 117 ; ffohnesv. MatJiews, 9 Mo. P. C. 118 ; (p) 1 Uuss. & M. 506, et vide Joy v. 3 Eq. R. 450, by French. Digitized by Microsoft® Sect. 8. DEFEASIBLE PURCHASES. 25 Lord Hardwicke in Longuet v. Scawen (r), and Floyer v. Sherard (s). His Lordship distingnished between the sale of an annuity absolutely and of a redeemable annuity, which latter, he said, was considered by the Court as a loan. ■ Another ground for the same construction arises, when the deed Redeemable contains a stipulation for notice to be given of the grantor's in- tention to repurchase, and for repayment of the original purchase- money, with all arrears of the annuity, and a half-year's payment in addition, so as to allow ample time to find out another hand to take the money, and to secure the interest in the meantime (t) . The fact of there being an immediate remedy by covenant or otherwise against the person of the grantor, while there is no present remedy against the property (as in the ordinary power of distress and entry after default in payment for twenty-eight days), leads to an inference, that the estate is only meant as a security (u). But, on the other hand, the express exemption of the grantor from all personal liability (which renders the case very similar to a Welch mortgage) does not affect the right of redemption (v). In Bulwer v. Astley (u), all the above circumstances occurred in favour of the right of redemption ; and it may be observed, that, in all the above cases, the right of repurchase was not limited to any particular time. In cases of this nature, the heir of the grantee, where the annuity is limited to the heirs, is a trustee for the executor (x). When redemption is decreed, the sums received under the annuity are to be applied, first, in payment of the interest, and afterwards, in sinking the principal («/). Some writers (z) have also considered the general rule, that the mortgagee shall not be allowed to enter into a contract with the mortgagor, at the time of the loan, for the absolute purchase of the land for a specific sum in case of default on payment of the mortgage-money at the appointed time, not to apply in case the payment of the money advanced and interest be limited to a particular period ; and for this doctrine the case of Tasburgh v. Echlin (a) is advanced as an authority. But this case was de- (r) 1 Ves. S. 404. Kearny v. Lyiich, 2 Jo. & Lat. 330. (s) Amb. 18. {^) Iionguetv. Scawen, 1 Ves. S. 404 ; (ft Vemer v. WinstanUy, 2 Sch. & sed vide Williams v. Owen, sup. Lef. 293 ; Lawley v. Eooper, 3 Atk. {x) Lmiguet v. Scawen, sup. 278 ; Freston v. Neele, 12 Ch. D. 767, {y) Lawley v. Sooper, sup. V. C. Bacon. W 5 Bao. Ab. ; 1 Pow. Mtg. 626, 7th ed. (m) Bulwer v. Astley, 1 Ph. 422 ; {a) 2 Bro. P. C. 265. Digitized by Microsoft® 26 MORTGAGE, "WITH EQUITY OF REDEMPTIOKr. Chap. 3. termined on circumstances so special that it is scarcely an authority for any subsequent case, and is hardly applicable to the matter in question (b). The same beneficial principle, which operates in favour of the mortgagor, will operate in favour of his creditors ; as (c) where, a man having made several mortgages of his land, the first mortgagee filed his bill of foreclosure against the mortgagors and the other creditors ; a decree nisi was obtained, and, to save the estate, one of the creditors and defendants, with the consent of the other creditors, redeemed, upon an understanding between them that the other creditors should redeem him by a given day. The monej' was not paid, and after twenty years' possession and considerable sums laid out in improvements, redemption was decreed, and the defendant was allowed only necessary repairs and lasting improvements. (9.) A mortgage must be mutual. It has been already mentioned (d) that a mortgage cannot be a mortgage on one side only ; it must be mutual (e) ; that is, if it be a mortgage with one party, it must be a mortgage with both. The reverse of this was formerly attempted to be established ; viz., that it must be a mortgage with both or with neither, so that it was argued (/) that none could come to redeem, if the mortgagee could not compel the payment of the mortgage-money ; but the former is the true principle. The mutuality, however, need not run qiiatuor pedibus ; the rule only requires that it shall not be competent to one party alone to consider it a mortgage. In other respects the rights of the parties may be different, for it is in every day's practice, that one party may not be able to foreclose at a time when the other may redeem, as is in the instance cited in Talbot v. Braddyl (g). So, in a Welch mortgage, the moirtgagor may redeem at any time, but the mortgagee cannot foreclose, nor, without a covenant or bond, sue for the money (h). The modern practice is that the mortgagee cannot be compelled to receive payment before the day named in the mortgage deed, (6) Sed vide 1 Pow. Mtg. 4tli ed. 183. Ooodman v. Grierson, 2 Ba. & Be. 274. (c) Mton V. Greaves, 1 Vern. 138. (g) 1 Vern. 895; {d) Sup. p. 17. (7i) Howel v. Price, Free. Ch. 233, (c) Howard v. Harris, 1 Vern. 192. 477 ; Longuet v. Seamen, 1 Ves. S. 405, (/) Coplestoney. Boxwell, 1 Cli. Ca. 1 ; per Lord Hardwicke ; et vide Bulwcr v. White V. Ewer, 2 Vent. 340 ; et vide Astley, 1 Ph. 422. Digitized by Microsoft® Sect. 9. MORTGAGES MUST BE MUTUAL. 27 though the full amount of principal and interest up to that day be offered him (i). The circumstances of Talbot v. Braddyl (k), which was supposed to be an authority for the right of the mortgagor to pay off before the day, were peculiar (l). The mortgagee, if he is not paid off on the day, is entitled to six months' notice before payment (m). A mortgagee, consenting to a sale in a suit, is entitled to six months' interest from the time of his consent if the money is paid within that time, and, if the money is paid afterwards, he is only entitled to the interest to the day of payment (n). The proviso for redemption is not merely a restriction on the mortgagee's right, but is a substantive agreement between the parties as to the time of payment (o). There was a peculiar case of a trust for sale in case of non- payment on a certain day, with a proviso for redemption on payment on, before, or after the day named ; a bill for redemption filed before the day was held not demurrable (jj). The preceding authorities show with what jealousy equity has Exception ... where mort- looked on every attempt made to counteract or oppose its mterfer- gagee is a ence in behalf of the mortgagor ; but its object being to protect '■^^**"'°- him at a time when his necessities may have placed him at the mercy of the mortgagee, cessante causa, cessat etiam lex; and there- fore the general rule of equity before stated will admit of a very considerable exception in cases, in which there is evidence of inten- tion in the nature of the transaction, that provision was intended to be made by the mortgagor for some branch of his family, or that the mortgage was intended by him in the nature of a family settlement. Thus (q) where the right to redeem was confined to the mortgagor during his life, and it was proved that the mortgagor had a kindness for the mortgagee, his near relative, and intended him the land, and that the claim of redemption was inserted only for a particular reason, redemption after the death of the mort- gagor was refused. The like doctrine governed a case (r) in which a man, by settlement on his marriage, reserved to himself (i) Brown v. Cole, 14, Sim. 427. (o) lb. (k) 1 Tern. 183, 395. (p) Harding v. Pingsy, 4 N. E. 10, {I) 2 Dav. Conv. 580, 3rd ed. 12 "W. B. 684. (m) Sharpndl v. Blake, 2 Eq. Ca. (j) Newcomb v. Bonlutm, 1 Vem. 7. Abr. 603, pi. 34. (r) King v. Brontley, 2 Eq. Ca. Abr. (re) Day v. D., 31 Beav. 270. 595. Digitized by Microsoft® 28 MOETGAGE, WITH EaUITY OF EEDEMPTION. Chap. 3. the option of paying a sum of money, or letting the settlement stand (s). It is rather singular that the case ot Jason y. Eyres (t) was not adjudged as coming within the same exception. Sir Robert Jason, being seised of lands subject to a mortgage term, entered into a marriage contract, by which it was agreed that in case of failure in payment of the mortgage, or if Sir Robert should die before pay- ment and surrender of the term, then the premises should be in trust for the wife in fee, not only to enable her to pay the debt and free her jointure thereof, but to the end that she might enjoy the inheritance /or the increase of her fortune. Redemption was decreed against the widow, although it might have been fairly contended that the right of the wife was maintainable, on the ground of the transaction being intended by way of settlement or family provision. In this case parol evidence was offered and read on both sides, which the Court took no notice of, but rejected. It will be observed, that in Newcomb v. Bonham (u), the ultimate decision was expressly founded on pa/rol evidence of the mortgagor's intention, and, at the present day, such evidence would be clearly admissible (v). 10. Conversion into Mortgage by Agreement Subsequent. A doubt has been raised {x), whether an absolute conveyance can be converted into a mortgage by agreement subsequent. A slight consideration of principles will, it should seem, satisfy us on this head. Equity looks to the substance, and not to the form of things ; and, therefore, on the one hand, it considers a purchaser, after an agreement for an absolute sale, the actual owner before conveyance ; and, on the other hand, where the agreement is for a mortgage, it considers the mortgagor the actual owner after conveyance. Apply- ing these principles to the point in question, as soon as the agree- ment for an absolute sale is executed and the consideration paid, the vendor is in equity a stranger to the estate, and any subsequent transaction between him and the purchaser cannot, it should seem, have the effect of divesting the ownership from. the purchaser, and (s) Et vide WoUton v. Aston, Hard. (ij) Richards v. Syms, 2 Eq. Ca. Abr. 611 ; Hmnpton v. Spencer, 2 Vern. 288. 617, Barnard. Ch. 90, vide sup. 18. («) 2 Ch. Ca. 33. {x) 1 Pow. Mtg. 4th ed. 166. (it) 1 Vern. 7. Digitized by Microsoft® Sect. 10. CONVERSION INTO MORTGAGE BY AGREEMEXT. 29 revesting it in the original vendor, without the intermediate step of a repurchase by the vendor. There is no greater privity of estate subsisting between them, than between any two indifferent persons, and no act has been done to shift the ownership back again. Then if the purchaser contract, on repayment of the con- sideration-money with interest, to reconvey the estate, this can be of no more avail in equity than if A. should contract to sell the estate to B. on payment of a sum of money with interest. If the purchase-money is not paid, A. may rescind his contract. Upon this principle was decided the case of Sabine v. Barrell (y), in which the Lord Keeper said, he was satisfied it was not originally a mortgage, but an absolute purchase ; and that he thought, where there was a clause or proviso for repurchase, the time limited ought to be precisely observed ; and it may be thought this was the true principle which decided the before-mentioned cases of Cotterell v. Purchase (z), and Ensworili v. Griffith {a) ; and in the case of Copleston v. Boxwell (b), the point was strongly pressed by the counsel for the defendant, but the case was referred to arbitration. An important consequence results from this distinction between Devolution of a mortgage and a purchase with a proviso for repurchase, viz., that, ^'cmevln ca-se in the latter case, if the party to whom the conveyance is first made °^ repurchase, dies seised, and after his death the option is declared by the other party to take the estate, the purchase-money belongs to the heir, and not, as it would if it had been a mortgage, to the executor. Thus, upon an election to repurchase, the money was decreed to the heir in preference to his executors, on the ground that it was not the case of a mortgage, but a mere collateral agreement to repurchase (c). It may be further remarked, that the circumstance of an agree- ment to reconvey, although entered into at the time of conveyance, is not sufficient to convert the transaction into a mortgage if there be evidence to rebut the presumption {d) ; and further that an estate redeemable may be rendered irredeemable by a subsequent deed extinguishing the mortgage, as where (e) copyholds were surren- dered by way of mortgage, and by a second surrender the mortgagor limited them to himself for life, remainder to his wife for life, (y) 1 Vern. 268. {d} Sabine v. Barrell, 1 Vern. 268 ; (z) Ca. t. Talb. 61. Williams v. Owen, 10 Sim. 386, 5 My. (a) r> Bro. P. C. 184. & Cr. 306 ; Perry v. Meddowcroft, i {b) 1 Ch. Ca. 1. Beav. 197. (c) ThornborougJi v. Baker, 3 Sw. 631. (c) Perry v. Marslmi, 2 Bro. C. C. 397. Digitized by Microsoft® 30 MOETCJAGE, WITH. EQUITY OP HEDEMPTION. Chap. 3. remainder to the mortgagee in fee ; and although the words, " subject to the trusts of the former surrender " were added, yet the Court refused redemption, and considered the words to mean, " subject to the preceding life estates." It scarcely need be noticed that the mortgagor cannot, under his covenant for further assurance on default in payment, be called upon to release his equity of redemption, and that he can, under such covenant, be required to confirm the mortgage only (/). 11. The Result of Cases. The following conclusions may be drawn from the foregoing : — 1. Once a mortgage, always a mortgage. 2. A mortgage cannot be a mortgage on one side only ; it must be mutual. 3. Parol evidence is admissible of the right to redeem. 4. A right of pre-emption may be given to the mortgagee ; but such a right is construed strictly. 5. A conditional purchase is distinguishable from a mortgage and will be enforced. 6. Defeasible purchases differ from mortgages, and the stipula- tions must be strictly adhered to. 7. A purchase may be converted into a mortgage by agreement subsequent. (/) Atkins V. Uton, 1 Ld. Eaym. 36 ; Comb. 318. Digitized by Microsoft® 31 CHAPTER IV. NATURE OF AN EQUITY OF REDEMPTION, ITS RIGHTS AND INCIDENTS. Sect. 1. Nature of equity of redemption . . . . . 31 2. On whom binding 32 3. Descent and devise . . . . . . .33 4. Entail, curtesy, and dower . . . . . . 34 5. Legal and equitable assets . . . . .36 6. Redemption on mortgage by appointment, and other matters . . . 41 7. Forfeiture and escheat . . . . . .42 (1.) Nature of equity of redempticm. The right or equity of redemption being thus established, it is necessary to consider the nature of that right, against whom it lies, and its incidents or qualities. First, then, of the nature of an equity of redemption. It has been already shown, that, by the common law, the legal ownership of the land, on the execution of the deed of mortgage, is transferred to the mortgagee, subject to be divested on performance of the condition, and that a mere right of re-entry on performance of the conditio];! remains in the mortgagor, of which, being neither alienable nor devisable prior to the recent statutes (a), advantage might be taken by him or his heirs alone. These doctrines were at first (6) attempted to be applied in equity to the right to redeem after condition broken ; but the mortgagor, as in the civil law, is now held to be the real owner of the land until decree of foreclosure and possessed of it in his ancient and original right and estate, and the mortgage is personal assets (c). (fl) Vide 1 Vict. c. 26, s. 3, and 8 & 9 (i) Roscarrkh v. Barton, 1 Ch. Ca. Vict. 0. 106, s. 6 ; by which rights of 217 ; 1 Eq. Ca. Abr. 317, pi. 4. entry are made devisable and alienable l)y (c) Cashome v. Scarfe, 1 Atk. 602 ; deed ; inf., p. 34 {I). Francis's Max. 13. Digitized by Microsoft® 32 NATUEE OF EQUITY OF EEDEMPTIOX. Chap. 4. An equity of redemption then is, in equity, the ancient estate in the land without change of ownership. But the clause of redemp- tion is not " a condition for the benefit of the grantor " within the Mortmain Acts (d). The king. (2.) On whom hindAng. Questions of great nicety formerly arose in reference to the persons on whom this equity of redemption was binding, but which for the most part have now ceased to have any interest : Lord ' Hale des- cribed it to be not merely a trust, but a title in equity, and to be inherent in the lands, and binding on all persons, whether in the post or otherwise (e), and, although on the immediate establish- ment of the equity of redemption, ancient prejudices so far pi^evailed as to lead to a decision, that lands conveyed to a mortgagee in fee became subject to his legal incumbrances, and to the dower of his wife (/), and therefore, in order to prevent the latter, it was usual to convey the lands to two persons in joint tenancy, yet this mis- conception was soon remedied, and the rights of the parties put upon the proper footing. Notwithstanding, however, the strong opinion entertained by Lord Hale of the binding quality of this equity, great doubts once prevailed whether the redemption of a mortgage could be had against the Lord of manor, king (e). And it was decided {g), that a lord of a manor was not bound by the equity on an escheat, if notice of such equity did not appear on his court rolls ; although in another case Qi) it was held that he was bound by the equity, if on the rolls there was a reference to a deed giving notice of it, and that the mortgage money belonged to the personal representative of the mortgagee, and not to the lord. No difficulty now exists, for it is enacted (i) that no lands, stock, or chose in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to Her Majesty, her heirs or successors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her No escheat of property held upon trust or mort' (d) Doe V. EawJcins, 2 Q. B. 212. (e) Pamlett v. Ait. G., Hardr. 465 ; 1 Eq. Ga. Abr. 315, and see Rogers v. Maiile, 1 Y. & C. C. C. 4. {/) Naah v. Preston, Cro. Car. 190 ; 1 Eq,. Ga. Abr. 217, pi. 1 ; Co. Litt. 205, a, n.' 1. (g) Alt. G. V. The Duke of Leeds, 2 My. & K. 343. (A) Weaver v. MmU, 2 Rubs. & M. 97 ; el vide 3 Ha. 404—406. (i) 13 & 14 Vict. c. 60, as. 15 & 46 ; replacing 4 & 5 Wm. 4, c. 23. Digitized by Microsoft® Sect. 2. ON -WHOM BINDING. 33 co-trustee, or descend or vest in his or her representative, as if no such attainder or conviction had taken place. But nothing contained in the Act is to prevent the escheat or Act not to pre- forfeiture of any lands or personal estate vested in any such trustee forfeiture^of " or mortgagee so far as relates to any beneficial interest therein of j'X^^' any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if the Act had not passed. Where an estate has been first mortgaged for a term, and after- wards by way of equitable deposit of title deeds beyond its value, the mortgagor is not a trustee under the Act so as to prevent an escheat of the legal fee to the crown (/c). The equity of redemption, as in the case of a mere trust, will not of course be binding on a bond fide purchaser for a valuable con- sideration, if he takes without notice. (3.) Descent and devise. Next as to the incidents and qualities of an equity of redemption. It has been already mentioned, that an equity of redemption is an estate in the land without change of ownership. It necessarily follows, that its line of devolution must, in the course of descent, be governed as the land itself would have been, by the general law, or by the lex loci ; and therefore, if the land be of gavelkind tenure, the equity of redemption will be divisible in like manner ; or if the tenure be borough-English, the youngest son will be entitled, and so of the like (i) ; and on the like principle if (before the Wills Act (m), which makes all wills speak from the death) a devised estate was mortgaged by the testator, the mortgage,'whether in fee or for a term of years, if confined to the purpose of the security, was but a revocation pro tanto (n), and if the owner of an unqualified legal fee devised it by his will, and afterwards made a mortgage with an unqualified proviso for redemption, this was no revocation of the will, because the proviso was incidental to the legal fee (0). A mortgage by a disentailing deed which limited the estate to the mortgagor in fee, was, until the Wills Act, a total revocation of a prior will (p). A devise of the equity of redemption itself must be (A) Rogers v. Maule, 1 Y. & C. C. C. i. C.E. 13 M. & W. 534. {I) Fawcett v. Lowther, 2 Ves. S. 304. (p) Power v. P. 9 Ir. Ch. Eep. 178 ; (m) 1 Vict. c. 26. Sparrow v. Hardcastle, 1 Ld. Kenyon, (n) Thome v. T. 1 Vera. 182 ; Hall v 67, 3 Atk. 798 ; Hamwod v. Oglander, Dunch, ib. 392. 8 Ves. 107 ; Locke v. Foote, 5 Sim. 818. (0) Youde V. Jones, 9 Jur. 910, V. Digitized by Microsoft® " 34 NATUEE OF EQUITY OF EEDEMPXION. Chap. 4. also valid (g), if attended with the like technicalities as the law Devise. requires for a devise of the land. A doubt has been raised (?•) whether prior to the breach of the condition, when, as has been already explained, the mortgagor has aright of re-entry only, a valid devise of the land can be made ; and the ground of objection was, that the benefit of a condition was not devisable. There seems at common law to be sound reason for the objection ; for a right of re-entry can scarcely be placed on the footing of a possibility accompanied with an interest, as has been attempted by a preceding writer (s), and devisable as such ; but, nevertheless, if such a devise could not be maintained at law, which, it is apprehended, is the total amount of the question, it would be good in equity, whether the mortgagor should die before or after the breach of the condition. And by the Wills' Act rights of entry are made devisable at law (f). (4.) Entail, Curtesy, and Dower. Eutaii. Prior to the decision that an equity of redemption was an estate in the land, and so long as the notion prevailed that it was but a right, the limitation of it by way of entail, or in strict settlement, seemed out of the question ; and it was considered, that such an entail, if it could subsist, would tend to a perpetuity. But when the equity was declared to be the ancient estate without change of ownership, it became, of course, subject to all the limitations to which other estates in equity were liable (m). It was once received in equity, that an entail in a trust estate and remainders over might be barred by any mode of assurance whatever, as by bargain and sale, covenant to stand seised, feoff- ment, and even by will {x) ; and, in accordance with this doctrine, it is said to have been decided that a tenant in tail of an equity of redemption might devise it for payment of debts (?/), and it seems even to have been doubted, whether a common recovery could be suffered of an equitable entail, unless upon a consideration (2). But it has been long (a) settled that an equitable entail and re- mainders are barrable by such mode of assurance only as would bar a legal entail and remainders. By the 3 & 4 Wm. 4, c. 74, (2) PUlUps V. Hale, 1 Eep. in Ch. 190. (a:) 1 Vern. 14, note, (r) 2 Ch. Ga. 8. (y) Turner v. Chvinn, ib. 41, 99. (s) .See Pow. on Mtg. ed. 4, 348, who (s) Goodrich v. Brovm, 1 Ch. Ca. 49, refers to Moev. Jones, 1 H. Bl. 80. 2 Vern. 56. («) 1 Yict. c. 26, B. 3. (a) Eirkham v. SmUh, Amb. 518 ; («) Hard. 469. and see Lcgai v. Sewell, 2 Vern. 552. Digitized by Microsoft® Sect. 4. ENTAIL, CURTESY, AND DOWER. 35 abolishing fines and recoveries, a power of disposition has been given to tenants in tail of freehold lands by simple deed enrolled in Chancery. In consistency with the anomalous decision of equity, that there Curtesy, should be a tenancy by the curtesy, but not dower, of a trust estate, the like was decided of an equity of redemption. The right to tenancy by the curtesy, was at first disputed on the notion already mentioned, that the equity was but a right, of which a seisin could not be had by the wife so as to give title to the husband ; but Lord Hardwicke in deciding the equity to be an estate, decided also the right to the tenancy by the curtesy (b). Strong arguments were urged (c) by the widow for her right to Dower, dower of an equity of redemption ; but the point was considered too well settled (d). The 3 & 4 Wm. 4, c. 105, removed this anomaly in cases Dower Act. of women married subsequently to the 31st of December, 1833, by enacting, that when a husband shall die beneficially entitled to any land for an interest, which shall not entitle his widow to dower out of the same at law, and such interest, whether equit- able, or partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same. It will be observed that the statute embraces estates of which the husband shall be seised partly for a legal interest, and partly for an equitable interest. This has more immediate reference to the limitations formerly in general use in bar of dower, which, being to the husband for life, with remainder to a trustee during his life in trust for him, with remainder to himself in fee, were in fact partly legal and partly equitable. The words in the statute will of course apply to any similar case ; as if the estate is limited to a trustee for the husband for a term of years or other limited interest with remainder to the husband in fee or in tail, or to the husband for a term of years or other limited interest with remainder to a trustee in fee in trust for the husband in fee or in tail, or in any other manner which shall give the husband the sole beneficial profits of the land, as realty, for an estate amounting to an estate of inheritance in possession. (S) Casbome v. Scarfe, 1 Atk. 602. AU. Gen. v. Scott, Cas. t. Talb. 138, and (c) Dixon V. Saville, 1 Bro. C. C. 326. cases in note ; S'Arcey v. Blake, 2 Sch. {d) Banks v. Sutton, 2 P. WaS/^^ecfib^eJWasnoSO/?® D 2 36 NATURE OF EUUITT OF EEDEMPTIOK Chap. 4. The statute also gives to widows a right of dower in estates in respect of which their husbands may have been entitled to a right of entry or action, although they shall not have recovered posses- sion, provided the dower be sued for and obtained within the period during which such right of entry or action might be enforced. These benefits have, however, been dearly purchased by women, the statute having placed the. right to dower absolutely within the dis- posal of the husband, by alienation or charge, or by simple declara- tion of intention by deed or will (e). A devise also to the widow by her husband of any lands out of which she would be entitled to dower if not so devised, will be a general bar of dower ; but a bequest to her of personal estate will not have that effect : unless (in both cases) a contrary intention is declared by the will. Women married prior to the 1st of January, 1834,'are not within the statute, either in respect of its disabilities or benefits. The question how far an equity of redemption was and is subject to judgments and writs of elegit is reserved for the chapters on judgments (/). (5.) Legal ^- • Courts of Equity, whereby protection is given to purchasers for valuable consideration without notice. But as this left a bond fide purchaser without notice in many cases still liable more extensively to judgment creditors than he was before the statute {i), it was by the 5th section of 2 & 3 Vict. c. 11, enacted that as 2&3Vict. against purchasers and mortgagees without notice of any such "' ' judgment, decrees, or orders, rules or orders, as in the act mentioned, none of such judgments, decrees, or orders, rules or orders, shall bind or affect any lands, tenements, or hereditaments, or any interest therein, further or otherwise, or more extensively in any respect, although duly registered, than a judgment of one of the superior Courts would have bound such purchasers or mortgagees, before 1 & 2 Vict. c. 110, where it had been duly docketed according to the law then in force {k). Thus, as against purchasers or mortgagees, without notice of subsisting judgments, 1 & 2 Vict. c. 110, was rendered a dead letter; so that, as respects such purchasers and mortgagees, the old rule was restored {]). (/) Tunstall v. Trappes, 3 Sim. 286. was not a case of notice. (gr) 29 Car. 2, c. 3, s. 14 ; Davis v. (h) Le Neve v. Le N. 3 Atk. 646, and Strathmore, 16 Ves. 419 ; Thomas v. inf. p. 109. Pledwell, 7 Vin. Abr. 53 (overruUng For- (i) Sug. V. & P. 533, ed. 14. shallv. Goles,ib. 64, pi. 61); Cockbumey. {k) See Irish Act, 7 & 8 Vict. c. 90, s. Wright, 6 Ir. Eq. R. 1 ; Leahy v. Dancer, 8, which contains a similar provision. 1 Moll. 313 ; Brandling v. Pl-ummer, 8 (I) Sug. V. & P. 533, ed. 14 ; Dart and De G. M. & G. 747, 754; 3 Jur. N. S. 401, Barb. 456, ed. 5. Digitized by Microsoft® 106 NOTICE OF JUDGMEKTS Chap. 12. 2&3Vact. The effect of the 5th section of 2 & 3 Vict. c. 11, was to c 11 substitute registration under 1 & 2 Vict. c. 110, for the old docket (m) ; so that an old judgment not docketed, but registered under 1 & 2 Vict. c. 110, is prior to a subsequent mortgage of the equity of redemption, though without notice (ii). Under this 5th section, a registration of an old judgment not docketed previous to 2 & 3 Vict. c. 11, s. 5, is valid, although the judgment creditor is dead (o). In a case where an annuitant having the security of an old docketed judgment, but not having received payment for nineteen years, filed his bill against certain incumbrancers who had obtained a decree for settling their priorities in a suit to which he was not a party, the Master of the Kolls aided him in bringing an ejectment by the removal of outstanding terms (p). In this case, the subsequent incumbrancer had constructive notice of the judgment, but the bill was filed before 2 & 3 Vict. c. 11, received the royal assent, so that the effect of the notice against that, and the earlier act, did not arise. 3 & 4 Vict. 0. 82. (3.) Notice of unregistered judgment not now binding. Notwithstanding the'provision of the acts of 1 & 2 Vict. c. 110, s. 13, and 2 & 3 Vict. c. 11, s. 5, a purchaser was upon principle, equally'as' before, bound by notice of a judgment not duly registered. But by 3 & 4 Vict. e. 82, a mortgagee with notice of an unregistered judgment is protected from the additional remedies of the judgment creditor under 1 & 2 Vict. c. 110 ; and, since the old dockets are closed, he is equally safe from any remedy which, under the old law, depended upon docketing. Under these acts, it was held that an outstanding docketed judgment, not registered under 1 & 2 Vict. c. 110, is not an objection to a title {q). The same would seem to apply to a judgment not re-registered at the end of the five years ; for the subsequent mort- gagee or purchaser, though aware of its previous registration, might presume that it had been satisfied (r). It was, however, still thought doubtful, whether a mortgagee was (m) Doswell v. Reece, 11 Jur. N. S. (q) Bedford v. Forbes, 1 C. & K. 33. 764, V. C. Wood. (r) Beere v. Head, 3 Jo. & Lat. 340 ; («) lb. Knox V. Kdly,, 1 Dr. & Wal. 542 ; Hick- (6) lb.; see Balfour v. Watt, 8 Mo. son v. Collis, 1 Jo. & Lat. 94 ; Exp. P. 0. C. 190. Belfast Harbour Oommissioncrs, 5 Ii". {p) Smith V. Earl of Effinglham, 7 Jur. 35;5«m/ia)/i v. .ffraw, 1 Jo. & H. 685, Beav. 357. affirmed 3 De G. F, & J. 318. Digitized by Microsoft® Sect. 3. XOT NOW BINDING. 107 bound by notice of a judgment, which was neither docketed, registered, or re-registered (s). The doubt (if any existed) was put an end to by 18 & 19 Vict. Doubt re- c. 15, ss. 4 & 5, which enacts that no notice of a judgment not 18 & 19 Vict. registered or not re-registered in the Common Pleas, shall affect purchasers, mortgagees, or creditors. And generally a purchaser or mortgagee is not now affected by notice of any judgment not registered or not re-registered in the Common Pleas (t) ; and he may always be satisfied with a five years' search (m). (4.) Priority of judgments inter se. Where the judgment was intended to affect land in a register county, it had to be entered in the local register, and the priorities of several judgments inter se depended upon the order of their registration there (x). The priority of charge of judgments depended on the order of registration in the local registry, and not on the order of registration in the Common Pleas (y). A judgment, registered under the registry counties Acts, takes priority over an earlier judgment not registered in the county, although duly registered in the Common Pleas, notwithstanding notice (z). Secus, it would seem, if the latter, although in form a judgment, was really a matter of con- tract (a) ; the reason is that, a judgment being in invititm, nothing passed either by way of contract or by virtue of the Judgment Act, until the judgment was registered in Middlesex (b). And a judgment creditor, though registered in a registry county, if not also registered in the Common Pleas, is postponed to a subsequent judgment which is registered in both (c). Under 27 & 28 Vict. c. 112, the priority of judgment creditors 27 &28 Vict. inter se is regulated according to the times when the several (s) Jortin v. SoidJi- Eastern R. Co., 6 v. Keane, sup. Neve v. Flood, 33 Beav. De G. M. & G. 275 ; B,-"re v. Head, sup. 666 ; 10 Jur. N. S. 607 ; 84 L. J. Ch. 89. Be Huthwaite 2 Ir. CU. R. 54 ; Dart & [y) Neve v. Flood, sup. Barb. 488, ed. 5. [z) Bemham, v. Eeaiie, sup. ; Neve v. («) Shaw V. Neale, 6 H. L. 614. Flood, sup. (u) Senltam v. Keane, sup. (a) Doe v. Carter, 8 T. R. 300 ; Ben- {x) Prid. on J. 45, ed. 4. See Johnson ham v. Keane, 1 Jo. & H. 685, 702 ; V. Holdsworth, 1 Sim. N. R. 106 ; 15 Jur. Croft v. Lamley, 6 H. L. 672 ; but see 31 ; Wcstbrooke v. Blythe, 3 El. & B. Fish. Mtg. 671, ed. 3. 737 ; 1 Jur. N. S. So ; Hagltcs v. Lumley, (b) Per V. C. Wood, 1 Jo. & H. 702. 4 El. & B. 274; 1 Jur. N. S. 422; Bciiham (c) Nnv v. Flood, sup. Digitized by Microsoft® 108 PEIOEITY OF JUDOMENTS INTEE SE. Chap. 12. writs are placed in the sheriff's hands (d), and the registry of a judgment in the county registry will not be effectual, until execution issued and return by the sheriff, and registration (e). The decisions which require registration in the Common Pleas, as well as in the county registry, are applicable to this act. (5.) Priority of judgments and deeds. Under the old law, a mortgage duly registered in Middlesex was not bound ^by a prior judgment not registered there without actual notice (/); but he was bound if he had notice of it (^). This equity is merely a personal equity Qi). A mortgage registered in the county prevails over an earlier judgment not registered there, although registered in the Common Pleas (i). It is apprehended that, if a judgment and execution thereon have not been duly registered in the Common Pleas so as to be a charge on the land, no notice thereof will have any effect, even in regard to lands in a registry county ; but if such registry in the Common Pleas has been completed, although there has been no registry of the judgment in the county registry, a subsequent mortgagee or purchaser with notice of such judgment would be postponed to the judgment as before, although the mortgage or purchase deed were duly registered in the county registry. 2 & 3 Vict Under 2 & 3 Vict. c. 11, s. 5 {k), an old undocketed judg- •=• 11- ment, if duly registered under 1 & 2 Vict. c. 110, became valid against purchasers or mortgagees without notice to the extent which a judgment duly docketed under the old law, would have been against them (t). A purchaser from the mortgagee of the judgment debtor taking with notice of a judgment which had not been registered or re-registered in the Common Pleas registry within five years, and having the legal estate, was held not to be affected by such judgment (m). The benefit of the English Eegistry Acts was reserved to pur- chasers and mortgagees, and did not include judgment creditors. {d) Quest v. Cowbridge E. C, 6 Eq. v. Woodward, sup. 619. (K) Exp. Allcm-d, 1 Fonbl. Eep. 217 ; (e) Stop. p. 102. Johnson v. Holdsworth, sup. (/) Mdbinson v. Woodward, i De G. (t) Westbrooke v. Blythe, 3 El. & Bl. & Sm. 562. See 1 Sa. on Us. 275, ed. i. 737 ; 1 Jur. N. S. 737. (gr) BenJiam v. Keane, 1 Jo. & H. 685 ; (k) Sup. p. 108. affirmed 3 De G. F. & Jo. 318 ; Johnson (1) Voswell v. Seece, 11 Jur. N. S. 764, V. Soldsworth, 1 Sim. N. S. 108 ; Tun- V. C. Wood. stall V. Trappes, 3 Sim. 301 ; Bvbinson (m) BenJiam v. Keane, .nip. Digitized by Microsoft® Sect. 5. rRIOlUTy OF JUDOMEXTS AXD DEEDS. jqq Thus an unregistered mortgage before 1 & 2 Vict. c. 110, was preferred to a subsequent judgment registered in the local registry {n). But the Irish Act (o) included creditors by judgment, recognizance, or statute {p). (6.) Priority of deeds inter se. Eegistered instruments have priority over unregistered in- struments, though of an earlier date, if the owner of the registered instrument had no notice of the earlier unregistered instrument (q). A registered mortgage by a settlor is preferred to a prior un- registered settlement, and an appointment under a power therein ()•). A registered assignment does not make effectual an unregistered lease (s) ; but where the lease is registered, and so prior to an earlier unregistered settlement, the assignment of the lease, though unregistered, is also prior to the settlement (t). No priority will be gained by an informal registration (u). The registration by the mortgagee protects the equitable title of the mortgagor, and prevents the lessee of the former from claiming a title adversely to the latter {v). Subsequent registered incumbrancers are postponed to an un- Notice of registered grant of annuities, of which they had notice, notwith- annuities, standing 18 & 19 Vict. c. 15, s. 12 (x). The reason of this effect being given to notice is, that the policy 'Reason of . . jr i/ rule. of the registry acts was to guard against prior secret conveyances, and that to permit a person to defeat, by a subsequent registered conveyance, a prior unregistered conveyance or judgment, of which he had notice, would be in effect to legalise fraud (?/). The cases are clear on this point (z), and, indeed, result from the (») Cathrow v. Ede, 1 Sm. & G. 423. [t) Warlurton v. Loveland, sup. (o) Irish, 6 Anne, c. 2, s. 4. (u) Jack y. Armstrong, 1 Huds. & Bro. {p) LatoucJie v. Lord Vunsany, 1 Soh. 727. & Lef. 157. {i>) Sail v. Lord Hiversdale, Beat. 550. iq) Ee IFigJit's Mtg. Trusts, 16 Eq. [x) Greaves v. Tofield, 14 Ch. D. 563, 41, V. C. Malins ; Credland v. Potter, 18 C. A. reversing M. E. ib. 350, v. C. Bacon ; 10 Ch. 8 ; Holland (y) 2 Dav. Couv. 763, ed. 3. V. Hart, 6 Ch. 678 ; Wyatt v. Barwell, (2) Lord Forbes v. Deniston, 1 Ve.s. S. 19 Ves. 435. 67 ; 4 Bro. P. C. 189 ; Blades v. B. 1 (r) Scrafton v. Quincey, 2 Ves. S. 413. Eq. Ca. Ah. 358 ; Hine v. Dodd, 2 Atk. And see IJ'arburlon v. Loveland, 6 Bli. 275 ; Le Neve v. Le N. 3 ib. 652 ; N. R. 1 ; 2 D. & C. 480. Biishell v. B. I Sch. & Lef. 103 ; Bid- (s) Honexjcomb v. Waldron, 2 Stra. dulph v. St.John, 2 i6. 521 ; Jolland v. 1064; Jarl- v. Armstrong, 1 Huds. & Stainhridge, 3 "Ves. 478 ; Wyatty. Bar- Bro. 727. «■"?') 19 *• 435 ; Cheval v. Nichols, 1 Digitized by Microsoft® 110 PRIORITY OP DEEDS INTER SE. Chap. 12. Notice must be clear. Notice at what time. principle on which the law of notice itself is founded. It was, however, justly remarked {a), that in this case the statute must have operation at law, so as to vest the estate in the subsequent purchaser, hut subject to relief in equity ; which relief can now, under the Jud. Act, be obtained in the Common Law Divisions (6). The doctrine extends to the Irish Acts (c), and to a lessor proceed- ing in ejectment upder 8 Geo. 1, c. 2 (Ireland), with notice of an unregistered mortgage {d). The notice must be actual, clear, and distinct, amounting in fact to fraud (e) ; but suspicion of notice is not sufficient to induce the Court to break in upon the statute (/). Clear constructive notice, however, as notice to the agent of the purchaser or mortgagee in the same transaction, or to the solicitor of the client, is for this purpose regarded as actual notice to the purchaser, mortgagee, or client himself {g). But such constructive notice as a lis pendens is not sufficient {K), nor notice of a tenancy (i). Eegistered deeds, conveying the legal estate, have priority over prior registered equitable conveyances, if the conveyance with the legal estate was obtained without notice of the prior equitable assurance {k). Both being registered, the legal esta;te prevails, in the absence of notice ; secus if the registered incumbrancer had notice at the time of the advance (J) ; but notice after he has taken his security will not affect him (m), although received before registry {n). Where there are several incumbrancers in a certain order on property in a registry county, and the second is prior to the Stra. 664 (case of an unregistered an- nuity). (a) Sug. V. & P. 984, ed. 11 ; Tunatall V. Trappcs, 3 Sim. 301. (6) 36 & 37 Vict. o. 66, s. 24. (c) Agra Bank v. Barry, 7 L. R. H. L. 135. (d) Biddulph v. St. John, 2 Soli. & Lef. 521. (e) JoUarid v. Stainiridge, 3 Ves. 478 ; Wyatt V. Ba/rwell, 19 ib. 439 ; Chad- vrick V. Tv/mer, 1 Ch. 310, aflirming 11 Jur. N. S. 333, M.R. See2Dav. Conv. 764, ed. 3. (/) Hiiu, V. Bodd, 2 Atk. 275. {g) U Neve v. ie iV. 3 ib. 646, 655 ; Tunsiall v. Trappes, 3 Sim. 307 ; Eolland V. Hart, 6 Ch. 678 ; Marjorihanks v. HovOnden, Dru. 11, and see Leiichorn v. MeCabe, 2 Ir. Eij. 342, and Wormald v. Maitland, 35 L. J. Ch. 69 ; 13 W. R. 832 ; 6 N. R. 218 ; dissented from in Agra Bank v. Bwrry, 7 L. R. H. L. 135 ; Sug, V. & P. 728, ed. 14. {h) Wyatt T. Barwell, sup. Wal- lace V. Donegal, 1 Dr. & Wal. 461. (i) Pqpham v. Baldwin, 2 Jones, Ir. Exc. 320. (k) Morecock v. Dickens, Amb. 678 ; Bussell Road purchase irionies, 12 Eq. 78, V. C. Malina ; appealed from, but compromised, ib.. 86. (I) Benham v. Keam, 1 Jo. & H. 685 ; 3 De G. F. & J. 318 ; Ford v. White, 16 Beav. 120. (m) Essex v. Baugh, 1 Y. & C. C. C. 620 ; Elseij v. Lvlyr,i.% 8 Ha. 159. (») Ib. and Fish. Mtg. 655, ed. 3. Digitized by Microsoft® Sect. 6. PRIOEITY OF DEEDS IXTER SE. HI first, but postponed' to the third, the third is to the^ extent 'of the interest of the second paid in priority to the first (o), the second carries up the third, as it was said in a similar case in Ireland, " upon its back" (p). If in any proceeding under the Transfer of Land Act, 1862, any ^^^^ Transfer Act, 1862. question shall arise respecting the priority of any charges or incumbrances, claims or interests, it shall be competent to the registrar to report the same to a Judge of the Court of Chancery, who shall have power to summon all parties entitled to attend him, either in Court or at Chambers, and to decide all questions touching priority, and relativie to the rights of parties, as fully as if they were parties to a suit instituted for the purpose (q). Subject to any entry to the contrary on the register, registered Land Transfer aCIij Lot 0. charges on the same land shall, as between themselves, rank according to the order in which they are entered on the register, aad not according to the order in which they are created (r). (7.) Difference between the English and Irish Registry Acts. It may be proper in this place to make a few observations, tending more particularly to distinguish between the operation of the Eegistry Acts of England and Ireland ; and with that view it may be first remarked, that the two sets of acts agree in the following respects, viz., that registry itself is not notice (s) ; that deeds take efiect inter partes and their representatives, although not registered ; for the Registry Acts do not make registration imperative, but leave it at the option of the parties; and that notice of a prior unregis- tered deed will prevent the priority of a subsequent registered deed (t). But as between two registered deeds for good consideration In England, without notice, this difference exists, viz., that in England a registered deed conveying the legal estate will have preference over a prior registered equitable conveyance, if such subsequent con- veyance was obtained without notice of the prior equitable assur- (o) Benham v. Keanr, sup., and Lef. 103 ; Laiouche v. Dunsany, ih. 157 ; Richards v. James, 2 L. E, Q. B. 285. Underwood v. Lord Courtown, 2 ib. 64 ; (p) See inf. p. 113. and Peniland y. Stokes, 2 Ba. & Be. {q) 25 &26 Vict. c. 53, s. 92. 68. (r) 38 & 39 Viet. c. 87, s. 28. (i) As to Ireland, see Underwood v. (s) As to England, mde inf. p. 113 ; Courtoun, sup. ; Biddulph v. St. John, as to Ireland, see Bushell v.£.,l Sch. & sup. Digitized by Microsoft® 112 DIFFERENCE BETWEEN ENGLISH Chap. 12. In England. In Ireland. Irish judg- mente. ance {u), and a prior legal mortgagee duly registered, advancing a further sum without actual notice of a. puisne incumbrance (x), or an equitable mortgagee getting in the legal estate without notice (y), may tack their respective securities, although the mesne incumbrance be duly registered. It is the folly of a purchaser or mortgagee to advance his money without having previously ascertained whether the legal estate be outstanding or not ; and if the legal estate is shewn to be out- standing, it is his business to get it in, or give proper notice of his incumbrance. If he neglect so to do, he takes the consequences : — Vigilcmtibus non dormientibus subveniwit leges. But a legal registered mortgagee cannot set up an unre- gistered charge against a subsequent registered mortgage ; the unregistered charge is by the act fraudulent and void against the latter (a). In Ireland, however, by force of the peculiar wording of the 3rd section of 6 Anne, c. 2 (Ireland) (b), and not because registration amounts to notice under the Irish, any more than it does under the English, acts(c), a prior registered deed, although only a charge (d), and even articles of agreement, will have preference over a subsequent deed, although it be a conveyance of the legal estate without notice (e). In fact, priority is according to the time of registration, and consequently tacking has no application (/). It is, however, only a deed above exception and untainted with fraud which will acquire priority by registration (g). Judgments do not require to be registered under the Irish Registry Acts, but have preference according to their date of entry over all subsequent deeds although registered, and even over all unregistered deeds, although prior in date ; although there was a difference of opinion between the authorities (h). («) Morecock v. Dickens, Amb. 678. (x) Bedford v. Backhouse, 2 Eq. Ca. At. 615. (y) Cator v. Cooley, 1 Cox, 182. (a) Gredland v. Potter, 18 Eq. 350j V. C. Bacon ; 10 Ch. 8. (6) 1 Soh. & Lef. 98. (c) Bushdl V. B. ib. 90 ; Underwood V. Lord Oourtovm, 2 ii. 41 ; Pentland V. Stokes, 2 Ba. & Be. 75. (d) Bushell v. B., sup. ; Eyre v. Dolphin, 2 Ba. & Be. 290-300 ; Thomp- son V. Simpson, 1 Dr. & W. 486 ; McNeill V. Cahill, 2 Bligh, 228 ; Mill v. Sill, 3 H. L. 828. (e) Warburton v. Loveland, 6 Bl. N. S. 1 ; 2 Dow. & CI. 480. (/) Bushell V. B., sup. ; Latouche v. Dunsan/y, 1 Set. & Lef. 137. See Carlisle v. Whcdey, 2 L. R. H. L. 391 ; Tenisonv. Sweeny, 1 Jo. & Lat. 710 ; Molesworth on registration in Ireland, 32, 66. (?) Underwood v. Lord Cov/rtown, sup. (h) Latouche v. Lord Dunsany, 1 Sch. & Lef. 161, and D'Arcy v. Chambers, ib. 468. Digitized by Microsoft® Sect. 7. AND IRISH ACTS. 113 The principle is familiarly expressed by saying, that the registered Eegistored deed carries up the judgment ' on its back ' (i). A similar conflict it^^^ud^^ent of claims was dealt with in England in the same way (k). <"> its back. (8.) Registration is not notice. The registration of a deed or judgment is not of itself notice (I), Eegistration and, consequently, if, subsequently to an assignment of a mortgage "" °'' ^"^ which is registered, payments are made by the mortgagor to the mortgagee, without notice of the registered assignment, they must be allowed in account by the assignee (m). The same doctrine is applicable in Ireland, notwithstanding the In Ireland, difference between the Eegistry Acts of England and the Kegistry Act of Ireland (n) ; the latter of which declares, that CTery deed shall be effectual according to the priority of time of registering the memorial (o). Lord Redesdale remarked ; " The registry is considered as notice Lord Eedes- to a certain extent ; no person thinks of purchasing an estate without searching the registry ; and, if he searches, he has notice ; but I think it cannot be notice to all intents, on account of the mischiefs that would arise from such a decision. For, if it is to be taken as constructive notice, it must be taken as notice of every thing that is contained in the memorial ; if a memorial contains a recital of another instrument, it is notice of that instrument ; if of a fact, it is notice of that fact." His lordship ultimately deter- mined that the plaintiffs were entitled to have the benefit of the articles against persons claiming by virtue of a subsequent legal settlement, under the peculiar wording of the act. In a subsequent case (p), in which he decided that the Irish Eegistry Act would not permit tacking, he observed, " That the registry is to be con- sidered as notice to all intents and purposes, is, I think, what one would not be inclined to hold when one sees the effect of so con- sidering it ; if it is to be considered as notice because it is an intimation of the existence of a deed put upon record, it must be (i) Sparrow v. Cooper, 1 Jones, Ir. Exc. Cator v. Cooley, 1 Cox, 182 ; 2 Burge, 72 ; Molesworth on Eegistration, 59 — 60 ; C. L. 838 ; Drew v. Earl of Norbury, Murtagh v. Tisdall, 1 Flan. & Kel. 20. 9 Ir. Eq. E. 171, 183 ; Mill v. Hill, 3 H. (jfc) Sup.^. 111. L. 828 ; Russell Road purchase monies, (I) Bedford, v. Backhouse, 2 Eq. Ca. 12 Eq. 78, V. C. Malins. Abr. 615, pi. 12 ; Wrighion v. Hudson, 2 (m) Williams v. Sorrell, sup. Eq. Ca. Abr. 609 ; Williams v. Sorrell, (n) Irish, 6 Anne, c. 2. 4 Ves. 389 ; Wiseman v. Westland, 1 Y. (o) Bushell v. B. 1 Sch. & Lef. 103. & J. 117 ; Lane v. Jackson, 20 Beav. {p) Latouche v. Lord Dunsany, ih. 535 ; Simmims v. rcUU, 8 Jur. 209 ; 57. Digitized by Microsoft® ' 114 EEGISTEATION IS NOT NOTICE. Chap. 12. Lord Redes- dale's views. Docketing. notice of every thing in that deed, for a party would be bound to inquire after the contents of that deed ; if it be notice, it must be notice whether the deed be duly registered or not; it may be unduly registered ; and if it be so, the act does not give a preference ; and thus this construction would avoid all the provisions in the act for complying with its requisites." And in another case {q), he observed, "that it seemed to him that nothing could be more mischievous than to hold that the putting any thing on the registry is notice, within the meaning of the word notice as applied to Courts of equity in such cases." The docketing of judgments under the old law was not of itself notice (r), nor is registration of a judgment under 1 & 2 Vict. c. 110 (s). (9.) Search not absolutely necessary. Search. • A purchaser, or mortgagee, is not bound to search the registry (i). But, if he .searches, notice will be presumed (m). Where it appears that an incumbrancer searched the register from a certain date only, he will not be considered to ha,ve had notice of any of the contents of the registry prior to that date ; though secus where a general search is admitted or proved {x) ; and a purchaser, or mortgagee, is not bound to make inquiries with a view to the discovery of unregistered instruments {y). Decrees and orders. (10.) Notice of decrees and orders. As respects decrees, rules, and orders, for payment of money — als they, prior to 1 & 2 Vict. c. 110, gave merely a personal right against the party liable to pay, it is clear that, until registered in the Common Pleas, they constituted no charge on his land, and would be rendered inoperative by an intermediate alienation of the land even with notice {z). If the holder of the decree, &c., has, at the time of registration (q) Underwood v. Lord Cowtown, 2 Sch. &Lef. 64. (r) 2 Eq. Ca. Abr. 682, note. . is) Robinson v. Woodward, 4 De G. & S. 562. (J,) Lane v. Jackson, 20 Beay. 535. (m) Procter v. Cooper, 2 Drew. 1. (x) Hodgson v. Dean, 2 S. & S. 222 . 'Ford V. White, 16 Beav. 120 ; Wrightson v. Hudson, 2 Eq. Ca. Abr. 609 ; BusMl T. B. 1 Sob. & Lef. 90 ; Lame v. Jackson j 20 Beav. 535 ; Holland v. Hart, 6 Ch. 684. (y) Agra Bank v. Barry, 7 L. E. H. L. 135, per Lord Selborne. (z) Lee V. Green, 6 De G. M. & G. 155 2 Jut. N. S. 170. Digitized by Microsoft® Sect. 10. ^TOTICE OP DECREES AXD ORDEES. of his decree, &c., notice of the intervening alienation, he would of course be bound, but it is submitted that, even if he had not notice, his registration could not have given a charge upon land which the debtor had aliened, and in which therefore he had no interest (a). (11.) Indian Registration Acts. Under the Indian Eegistration Acts, unregistered deeds have no effect, notwithstanding notice (6), either in India or England (c). (12.) Summary of law of judgments. As to land under the old law : — 1. A judgment duly docketed bound subsequent purchasers and mortgagees id) : 2. Even subsequent purchasers and mortgagees with the legal estate, and without notice (e) ; 3. But not subsequent purchasers and mortgagees getting in an outstanding legal estate, and without notice (/). 4. A judgment not duly docketed bound purchasers and mort- gagees with notice {g). Under the present law : — 1. Judgments entered up prior to the 23rd July, 1860, must have been registered, or re-registered, within five years last preceding, to be effectual charges under 1 & 2 Vict. c. 110. 2. Judgments entered up after 23 July, 1860, and before 29 July, 1864, can only become a lien on land by a writ of execution being registered : but such lien will cease if the writ be not executed within three calendar months fi-om registry, under 23 & 24 Vict. c. 38 Qi). 8. Judgments entered up after 29 July, 1864, must be enforced by actual delivery of the land under a writ of execution duly registered, and by sale of the land within three calendar months from the registry under 27 & 28 Vict. c. 112 (i). (a) Whitworth v. Gaugain, 1 Ph. 728 ; (d) Sup. p. 54. Bcnham v. Keane, 1 Jo. & H. 685. (e) ib. (6) Indian Acts, No. XVI. ^ of 1864, (/) ib. No. XX. of 1866 ; Hicks v. Powell, 5 (?) Sup. pp. 55, 104. Ch. 743. W Sup. p. 68. (c) Sides y. Powell, sup. (i) Sup. pp. 69, 71. Digitized by Microsoft® i 2 115 Ijg SUMMAEY OF LAW OF JUDGMENTS. Chap. 12. Under the county registries : — 1. A judgment registered in the county registries is prior to an unregistered judgment, even with notice (k). 2. A registered mortgagee is postponed to a judgment not registered in the county, of which he had notice, if such judgment is duly registered in the Common Pleas. 3. But a registered mortgagee is not hound by a judgment registered neither in the Common Pleas, nor in the county, even though he has notice of it. (A) Slip. p. 107. Digitized by Microsoft® 117 CHAPTER XIII. PRIORITY OF JUDGMENTS IN THE ADMINISTRATION OP ASSETS AND IN WINDING UP. Sect. 1. Statute 4 d; 5 Wm. & M. c. 20 2. Effect of closing the docket ..... 3. Statute 23 d 24 Vict. c. 38 . 4. Priority against executors ..... 5. Execution of judgments in Winding up 1. Statute 4d; 5 Wm. d M. c. 20. 117 118 118 119 120 With the exception of debts due to the Crown upon record, or by Precedence of '^ 1 ' J ]uagmeiii8. specialty, or to which particular statutes give priority of payment, judgments are entitled to precedence over all simple contract and specialty debts. But by the 3rd section of 4 & 5 Wm. & M. c. 20, no undocketed m^^^"' ^ judgment had any preference against heirs, executors, or ad- ministrators, in the administration of their ancestors', testators', or intestates' estates. Under this act, an undocketed judgment ranked only as a simple contract debt {a). It was not, however, necessary that a judgment recovered against executors upon a debt due from their testator should be docketed, in order to give preference against the executors in the administra- tion of the testator's estate (&), since the above mentioned statute did not apply to a judgment of this kind (c). (a) Hickey v. Bayter, 6 T. E. 384 ; V. C. Stuart. Steele v. Barhe, 1 B. & P. 307 ; Landon (J) Gaunt v. Taylor, 3 Scott N. E. V. Fcrgusson, 3 Euss. 349 ; Sail v. 700 ; 3 Man. & G. 886; 2 Ha. 416. Tapper, 3 B. & Ad. 655 ; notwithstand- (c) ib. ing Jorae v. Shepherd, 3 Jur. N. S. 806, Digitized by Microsoft® 118 PEIOEITY OP JUDGMENTS Chap. 13. (2.) Effect of closing the docket. Neither 1 & 2 Vict. c. 110, nor 2 & 3 Vict. c. 11, contained ally pro-vision respecting the effect of undocketed judgments in the administration of assets, and the result of closing the docket was, to reviye the law as it existed prior to 4 & 5 Wm. & M. c. 20 ; thus making an executor liahle for a devastavit, if he paid a simple con- tract deht before a judgment debt, even though he had no actual notice of the latter {d) ; but this omission has been supplied by a recent statute. (3.) Statute 23 d 24 Vict. c. 38. Sections 3 & 4 of this statute (e), restored to heirs, executors, and administrators in the administration of their ancestors', testators', and intestates' effects, that protection against unregistered judg- ments, which was so inadvertently taken from them by the closing of the docket under 2 & 3 Vict. c". 11 (/), and provided for the re-registration as against them of judgments every five years («/). Since this statute, judgments unregistered rank as simple contract debts Qi). The act applies where the judgment had been obtained before, if the debtor died after, the passing of the act (i). Judgments against executors are not within the act {j) ; and such judgments, though not registered, have priority over all other creditors, notwithstanding 32 & 33 Vict. c. 46, which abolishes the distinction between specialty and simple contract creditors (k) : but the judgment must be signed before the administration decree ; otherwise all the debts wiU be on the same footing (Z) ; nor does 23 & 24 Vict. e. 38, s. 3, alter that law (m). The 23 & 24 Vict. c. 38, s. 3, is not retrospective (n). ((Q 2 Saund. 9 c. n. e. ed. 6 ; Home v. {h) Waller v. Twrmr, 10 Jur. N. S. Shepherd, 3 Jur. N. S. 806, V. C. Stuart ; 147, V. C. Wood ; Ee Turner, 33 L. J. Corfield v. Malloek, 10 Jur. 575, Pre. Ch. 232, V. C. Wood. Ct. ; Fuller v. Bedman, 26 Beav. 600 ; (i) Kemp v. Waddimgham, sup. 5 Jur. IS. S. 1046 ; Ihoms v. Williams, (f) Me Bigby, 33 L. J. Ch. 149, M. R. 2 Dr. & Sm. 324 ; 11 Jur. N. S. 256 ; Smith v. Morgan, 5 C. P. D. 338, J. Kemp V. Waddingham, 1 L. E. Q. B. Lindley. 355 ; Jermings v. RigTry, 33 Beav. 198. {k) Be Williams' estate, 15 Eq. 270, («) 23 & 24 Vict. c. 38. V. C. Wickens. (/) Sect. 3, aud see Fuller v. Bedmuin, (l) Be Stubbs' estate, 8 Ch. D. 154, M. E. 26 Beav. 600, and sup. p. 101. (m) Jermings v. Bigby, sup. ; Waller (g) Sect. 4 ; and see 2 & 3 Vict. c. 11, v. Turner, sup. and 18 & 19 Vict. c. 15. (n) Evans v, Williams, sup. Digitized by Microsoft® Sect. 4. IN ADMINISTEATION OF ASSETS. Hg (4). Priority against executors. In the administration of assets between one judgment and another obtained against the testator, precedence, or priority of time, is not material so far as regards the personal estate. The first execution will be preferred, and, before execution, the executor may pay whom he will first (o). There is no difference between judgments in the Courts at Westminster, and in other courts of record in this respect (p). In a suit for the administration of assets, where the creditors have not sued out execution, the judgments are satisfied according to their actual priority in point of time (q). A final decree in a court of equity is, with respect to the course Decrees and of administering the personal assets of the debtor, equivalent to a equal footing, judgment at law, and stands in the same order of payment (f ) ; and such decree for administration is, like a judgment at law, satisfied according to its actual priority (s). A contingent decree for the administration of the debtor's estate, made before the sale of the goods, does not bar the creditor of his rights (t). The general rule is, that, after a decree for an account and pay- Injunction ment of debts and legacies, the executor may obtain an injunction ^editors, to restrain proceedings against the assets by a separate creditor, or legatee {u) ; though the executor will not be protected, if, by his pleading, he has made himself personally liable (v). And if the judgment is obtained before the decree, the creditor will not be enjoined from prosecuting his legal rights (x). Where a creditor obtains judgment against the executor, and, on the same day, a decree is made for the administration of the tes- tator's estate, the judgment creditor comes in, pari passu, with the other creditors {y). Where the judgment has been obtained against the executors, pending an administration suit, but before decree, the creditor (o) Wentworth Off. Executor, 269, ed. [t) Rankcn v. Harwood, 5 Ha. 215. 14. (m) Ycriion, v. Thelluson, 1 Ph. 466 ; {p) Wms. Exors. 1001, ed. 8. Wms. Ex. 1928, ed. 8. (?) Rowe V. Bant, 1 Dick. 150. («) Kent v. Pickering, 5 Sim. 569 ; (r) Morrice v. Batik of England, 2 Buries v. Popplewell, 10 ib. 383 ; vide Bro. P. C. 465 ; 3 Sw. 573 ; Abbis v. however the remarks in Wms. Ex. on Winter, ib. 578 n. ; Pcrri/ v. Phelps, 10 such a qualified injunction, p. 1933, Ves. 34 ; Dolland v. Johnson, 2 Sm. & ed. 8. G. 301 ; 18 Jur. 767. (x) Lee v. Park, 1 Keen, 714. (.5) Martin v. M. 1 Vcs. S. 211 ; Zrr (y) Parker v. Bingliam, 33 Beav. 535, V. Park, 1 Keen, 719. Digitized by Microsoft® 120 PRIOEITY OF JUDGMENTS IN ADMINISTRATION. Chap. 13. Lord Mayor's Court. Forejgn jttdgmeuts. Judgment by default V. executors. will not be depriyed of the fruit of his diligence, if there have been great and inexcusable delay in the conduct of the suit (z). An attachment in the Lord Mayor's Court against the assets of a deceased debtor does not, however, give any priority over the other creditors (a) ; nor does a judgment in the same Court against a garnishee entitle the plaintiff to rank as a judgment creditor in the administration of the garnishee's assets (&). Foreign judgments, not being of record in England, can only be treated as simple contract debts (c). So, where a person deceased died domiciled iu Ireland, leaving property in Ireland and England, and the same executors in both countries, it was held that an Irish judgment had priority over English simple contract creditors against Irish property remitted to England by the executors, and being there administered (d). The priorities of creditors are regulated by the domicile of the testator, though the personal assets may be situate and adminis- tered in another country (e). Judgment by default against an executor, in respect of his tes- tator's debt, is an admission of assets,'and binds the executor's own real and personal estate, as fully as if it were his own debt. There- fore, where an executor allowed judgment to go by default, in , an action against him as executor, the judgment creditor was held entitled to priority over a subsequent judgment obtained against the executor for a personal debt of his own (/). Sect. 87. Sect. 163. (5.) Execution of judgments in Winding up. By sect. 87 of the Companies Act, 1862 (g), when an order has been made for winding up a company, no suit, action, or other proceeding, shall be proceeded with, or commenced, against the com- pany, except with the leave of the Court, and subject to such terms as the Court may impose. By sect. 163 of the same act, any attachment, sequestration, (2) LwrUns v. Paaiton, 2 Beav. 219. (a) Bedhead v. Welton, 29 ib. 521. (5) Molt V. Murray, 1 Sim. 485 ; Fish. Mtg. 673, ed. 3. [c) Harris Y. Saunders, 4 B. & Cr. 411; Douglas v. Forrest, 4 Bing. 686 ; Hall v. Od^ber, 11 East, 118, 126. {d) Oooh V. Oregson, 2 Drew. 286. But see Reynolds v. Lewis, 29 L. J. Ch. 296, V. C. Stuart. (e) Wilson v. Lady Dumsany, 18 Beav. 293 ; 18 Jur. 762. (/) Bock V. Leighton, 1 Salk. 310 ; see Bamsden v. Jackson, 1 Atk. 293 ; Erving V. PeUrs, 3 T. E. 685; Be Higgins' trusts, 2 Gift'. 562 ; 7 Jur. N. S. 403. (g) 25 & 26 Vict. c. 89. Digitized by Microsoft® Sect. 6. EXECUTION OP JUDGMENTS IN WINDING UP. 121 distress, or execution, put in force against the estate, or effects, of the company, after the commencement of the winding up, are declared void to all intents. By sect. 201 thereof, the Court may, at any time after the presen- Sec. 20i J. J- <• i- • J • T in an un- tation 01 a petition for winding up an unregistered company and registered before an order, upon the application of any creditor, restrain further "''"P*"^- proceedings in any action, suit, or proceeding, against any contri- butory of the company, or against the company, upon such terms as the Court thinks fit. Under these sections, execution upon a judgment cannot be effected without leave of the court, subject to its discretion (h). A judgment creditor, who has seized goods of the company before Judgment presentation of the petition, wiU not be restrained (i), unless there restrained. is reason to doubt the bona fides of the transaction (k). In the absence of any unfair conduct, the judgment creditor, who has sued out execution, will obtain leave to proceed (l) ; espe- cially where execution would have been effected, but for resistance made to the sheriff's officer (m), or where proceedings in the action had been delayed by applications of the company (n). Where the sheriff has seized, but not sold, the goods, the sale will be restrained : but the judgment creditor will have the same rights in the proceeds of sale by the liquidator, as if the sale had been made by the sheriff (o). A creditor of a company, on the day on which a winding up order was made, obtained a judgment against the company, and issued a Ji. fa., which he subsequently delivered to the sheriff for execu- tion ; the Court, on the application of the official liquidator, re- strained further proceedings (p). Execution upon a judgment, obtained after the presentation of the petition, but before the order, was restrained {q}; similarly [h) Buckl. Co. Acts, 199, ed. 2. versal Disinfector Co., 20 Eq. 162, (i) Great Ship Co., i De G. J. & Sm. M.R.; Imperial Steam, &c. Co., 16 W. R. 63 ; 10 Jur. N. S. 3 ; 33 L. J. Ch. 245 ; 689 ; 37 L. J. Ch. 517 ; 18 L. T. 390. 3 N. R. 181 ; 12 W. R. 139. (o) Plas-yn-Mhomjs Coal Co., 4 Eq. (k) Perkins' Beach Lead Mining Co., 7 689, V. 0. Malins ; Hill Pottery Co., 1 Ch. 371, V. C. Bacon. Eq. 649, M. R. (Z) London Cotton Co., 2 Eq. 53, V. (.p) In re The Waterloo Life, &c. In- C. Wood. surance Co. (No. 2), 31 Beav. 589 ; 11 (m) lb. Dublin Exhibition Palace, ^- • under the powers of the act, by taking the person of the debtor in execution before the property so charged or secured shall have been converted into money or realized and the produce apphed towards payment of the debt (h). It seems that, if a judgment creditor takes the person of his (J) 9 & 10 Vict. c. 95, ss. 96, 97. Q. B. 68. (c) Arch, by Prent. 934, ed. 13. (/) Arch, by Prent. 934, ed. 13. (d) Jud. Act, 1875, Ord. xlii. r. 19, (gr) Davis v. SatHne,2'Rusa.li.M.y. 76. mp. p. 135. (A) See the Irish Act, 3 & 4 Vict. c. (e) Be Arbitration, Spooner t. Payne, ] 05, s. 25. 5 D. & L. 310 ; 12 Jur. 282 ; 17 L. J. Digitized by Microsoft® 142 JUDGMENTS GBNEEALLY. Chap. 15. Foreign process. Registry after execution. Under warrant of attorney. debtor in execution before the property charged has been realized, he cannot afterwards sustain an action for sale of that property for payment of his judgment (i). •This sect, was held to be applicable where a creditor arrested his debtor abroad on mesne process for a debt upon which he had previously recovered judgment in this country (k). But it seems that the clause has not relation back so as to defeat the lien where the person of the debtor has been taken in execution before the act (l). And it is not yet decided whether the process of contempt is a taking in execution within the act (m). After the debtor has been taken in execution and discharged, a registry of the judgment is improper, and satisfaction will be entered on the judgment («). The Court will compel the creditor to attend and consent to a memorandum of the fact being made in the master's book at the Common Pleas (o) ; but no such effect is produced by the debtor being taken into custody under an attachment for non-payment of money pursuant to a registered decree of the Court of Chancery {p). It seems that this 16th section will apply to the case of a debtor taken in execution under a judgment prior to the act ; and where a debtor taken in execution under an old judgment was, after the passing of the act, discharged out of custody on payment of the principal debt and a further sum by way of compromise somewhat exceeding interest from the time of the passing of the act, the Court refused to compel the creditor to refund, the agreement being fairly entered into and each party represented by an attorney {q). The discharge of the debtor from custody under a ca. sa. operated as a satisfaction of the judgment (r). Where a warrant of attorney only authorised judgment and execution for the arrears of an annuity, and the defendant was taken in execution on the judgment, the execution was set aside in toto (s). (j) Maguire v. O'Rdlly, 3 Jo. & Lat. 224. (Jc) SovMitch V. Collins, 5 Beav. 497 ; 6 Jut. 985 ; 12 L. J. N. S. Ch. 13. (Q Lloyd V. Mason, 4 Ha. 137 ; 9 Jur. 772. {m) Wells V. Gibbs, 3 Beav. 399 ; et vide Damies v. Bush, Yo. 358 ; Lloyd V. Mason, sup.; Lewis y. Dyson, 21 L. J. Q. B. 194 ; 16 Jur. 222 ; Soberts v. Ball, 24 L. J. Ch. 471 ; 3 Sm. & G. 168 ; 1 Jul. N. S. 585. (ra) Lcmhert v. Pa/mell, 10 Jur. 31, Q. B. (o) Lewis V. Dyson, sup. See HalUtt V. Dyne, 12 "W. R. 159. (p) Roberts v. Ball, sup. See Tol^m V. Dykes, 1 Ph. 439. (S) Eaigh v. JoTies, 5 Man. & G. 634. (r) Catlim, v. Kcrnot, 3 C. B. N. S. 796. (s) TiVyy v. Best, 16 East, 162. Digitized by Microsoft® Sect. 5. EFFECT OP DEBTOR BEING TAKEN IN EXECUTION. I43 The power of imprisonment, which is vested in the Court by the imprisonment Debtors Act, 1869, on default in payment of any debt or instal- ^^^^"^ "^'"'"^ ment of a debt in pursuance of an order of Court or judgment, does not operate as a satisfaction or extinguishment of any debt or demand, or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels, of the person imprisoned in the same manner as if such imprisonment had not taken place (t). (6.) Interest on judgments. By the old law, a judgment debt did not carry interest, and this was the general rule both at law and in equity, though it might be recovered at law, by way of damages, by action on the judg- ment (m). By sect. 17 of 1 & 2 Vict. c. 110, it is provided, that every 1 & 2 Vict. judgment debt shall carry interest at the rate of 4 per cent., from ' ' ■ ■ the time of entering up the judgment, or from the commencement of the act, if then entered up. A judgment entered up before the act cannot be satisfied without payment of interest since the commencement of the act (x) ; and will carry only 4 per cent, interest, though the original debt carried 6 per cent, (y) ; and a judgment to secure an annuity carries interest under this section (z). Interest runs on a judgment debt, from the time of the entry From what time. of the incipitur; and not merely from the final completion of the judgment after the taxation of costs (a) ; and where money is paid into Court on a judgment, interest is not payable beyond the time when the money might have been taken out of Court (ft). This section applies as well to judgments for costs payable by On costs. one party to another, as for the subject matter of the action (c). On such a judgment, the interest runs from the date of the master's («) 32 & 33 Vict. 0. 62, s. 5. 619. (m) Gaunt v. Taylor, 3 My. & K. 302 ; (a) Newton v. Grand, JwnxtUm R. Co., Booth V. Leycester, 3 My. & Or. 469. 16 M. & W. 139 ; 16 L. J. Exc. 276. (a!) Bishop v. Batch, 16 Jur. 1044, (i) Sinclair v. G. E. S. Co., 5 L. R. Q. B. C. P. 391 ; 39 L. J. 0. P. 224. (y) European Central B. Co. , 4 Oh. D. (c) Pitcher v. Roberts, 2 Dowl. N. S. 33 ; Florence v. Jenninys, 3 Jur. N. S. 394 ; Newton v. Lord Conyngham, 17 L. 772, 0. B. J- C. P. 288. {z) Knight v. Boicyer, 4 De G. & Jo. Digitized by Microsoft® 144 On costs. JUDGMENTS GENEE.ALLT. Chap. 15. Admiralty Court. On old warrant of attorney. certificate of taxation (d). But interest is not recoverable on costs directed to be raised out of an estate (e), nor on a sum ascertained by the master's report, under a decree of the Court, for the period between the decree and the report (/). Where judgment was entered up on a warrant of attorney, given before the statute to secure £500, and an agreement was made that the judgment should be a security for a greater sum, an application by a purchaser from the debtor, with notice of the agreement, to have satisfaction entered on the registered judgment on payment of £600, and interest at 4 per cent., was refused (g). Since the incorporation of the High Court of Admiralty in the High Court of Justice, an award of salvage is a judgment debt, and, as such, bears interest from the date of entry of judgment, the taxed costs bearing interest from the date of signing the allo- catur (h). In a case, where an old warrant of attorney had been given to secure a debt and interest, the sum, for which judgment was to be confessed, being the amount of the debt only, the Court granted a rule nisi to enter up judgment for the debt, and so much interest as the master should find due thereon (i). (7.) Assignment of judgments. An assignment of a judgment debt was held not to be an assign- ment of " property," within the meaning of 55 Geo. 3, c. 184, schedule, part 1, title Conveyance, and did not, therefore, require any ad^ valorem stamp, but required the ordinary deed stamp (&). The equitable assignee of a judgment debt assigned it over ; notice of the assignment not being given to the judgment debtor, the original assignee afterwards gave a release to the debtor, and it was held that such a release was good as against the assignee, who had omitted to give notice of the assignment to him (Z). {d) Schroeder v. ClougJi, 46 L. J. C. P. 365. (c) Att. Gen. v. Nethercote, 11 Sim. 529. (/) Att. Oen. V. Lord Ca/rrington, 6 Beav. 460. [g) Crafts v. Wilkimon, 4 Q. B. 74. (A) Be Jones Brothers, 37 L. T. N. S. 164 ; 46 L. J. P. D. A. 75. (i) Chal/c r. Walton, 5 Man. & Q. 573. (A) Warren v. Howe, 2 B. & Or. 281. But see Caldwell v. Damson, 5 Exc. 1 ; 14 Jur. 316, and see new act, inf. p. 663. (J) Stocks V. Vobson, 5 De G. & S. 760 ; 17 Jur. 223, 539 ; 4 De G. M. & G. 11. Digitized by Microsoft® Sect. 7. ASSIGNMENT OF JUDGMENTS. 14^ Under an Irish statute, 9 Geo. 2, c. 5, amended by 25 Geo. 2, Assignment of c. 14, judgments were made assignable at law, and the assignees, ^„''J'"'^" after registration of the assignment, were invested with all the legal rights of the assignor, (the conusee), and might, accordingly, have had the sole right of reviving, or releasing, or bringing an action on, the judgment, and the conusor might have pleaded payment made to them, and have had the same defence, both at law and in equity, against the assignee, which he could have had against the conusee, if no assignment had been made (m). It was decided, that the conusor is not answerable for payments made by him to the conusee, after, but without notice of, the assignment, notwithstanding the above acts, and notwithstanding the registration of the assignment required by the act(m). In Ireland, a judgment is a common security instead of a mortgage. The statute, 9 Geo. 2; c. 85, has been repealed (0). (8.) Judgments v. Companies. By 7 Geo. 4, c. 46, s. 12, and 7 & 8 Vict. c. 113, s. 9, judg- Banking Co. ments recovered against the public officer of a joint stock banking company within the acts, are to have the like effect against the property of the copartnership, and of every member of it, as if recovered against the copartnership (p). A judgment against a company is no charge on shareholders' Shareholders' lands (q); and the judgment creditors cannot charge the land of the shareholder, without the leave of the Court (r). Under the 13th sect, of 7 Geo. 4, c. 46, execution upon judg- Execution ments recovered against the public officer, may be taken out, first, mrate!" ^ against those who are partners at the time the execution issues ; if that fails, then against those who were partners at the time of the contract entered into (the only parties liable at common law) ; then against those who were partners before the contract was executed (in the case of an executory contract) ; lastly, against partners at the time of the judgment obtained. By an apparent omission in the act, pel-sons becoming partners after the terms of {m) 9 Geo. 2, c. 35, ss. 1, 2 ; 25 Geo. (}) Barns v. Royal British Bank, 11 2 c. 14. L. J. Exc; 1 ; Hone v. O'Flalverti, 9 Ir. ' (n) Boyle v. Ferrall, 12 01. k F. 740. Ch. R. 119. (0) 12 & 13 Vict c. 144. (»•) Hai-ris v. The Official Manager of (p) See 20 & 21 Vict. c. 49, s. 12 ; 21 the Royal British Bank, sup. ; Eoq). Ness, and 22 Vict. c. 91 ; and 27 & 28 Vict. c. 17 L. J. N. S. C. P. 15. 32, Digitized by Microsoft® ^ 146 JUDGMENTS GENERALLY. Chap. 15. Execution v. partners. Scire facias. the contract are completed, and ceasing to be so before the judg- ment obtained, escape altogether, though they were partners at the time when the action was commenced (s). But no execution is to issue without motion in open Court, after notice to the person to ■ be charged, nor after three years from the time such person has ceased to be a partner (t). After judgment has been obtained in an action against a public officer of a. joint stock bank under the above act, execution under the 13th section against a partner, not a party to the record, can only be obtained by a scire jfacias (u). Nor will the leave of the Court be obtained to issue execution against former members, unless it be satisfied that the creditor has, bond fide, attempted to recover from those who are members for the time being {x). But it is not necessary that execution should have been actually issued against all the existing members, if the affidavits shew sufficiently that such execution would, in all likelihood, be fruitless (j/). The legislature, in making those persons liable who were not contracting parties, seems to have acted on the supposition that those persons have the means of satisfying the partnership debt out of the assets, and ought to have done so ; and, further, that such companies are always solvent (z). It seems that the practice of the Court, which prevents a person from moving the same rule twice, does not apply to motions for leave to issue scire facias under this act ; and, if one motion has been refused, the creditor may, upon shewing new facts, obtain leave to issue a scire facias against the same party (a). And a scire facias, or an award of execution, issued against one or more partners, does not prevent another scire facias issuing against another partner of the same class (b) ; though the Court would probably prevent the issuing of a^ large number of writs in a vexatious manner (c). The act does not require the plaintiff to proceed upon his judg- (s) Sodgson v. Scott, 2 Exc. 457 ; 17 L. J. Exc. 321. {t) Sect. 13. (u) Whittembury v. Law, 6 Bing. N. C. 345 ; Bomnquet v. JRamsford, 9 L. J. N. S. Q. B. 44 ; and see BartUtt v. Pent- land, 1 B. & Ad. 704 ; Dodgson v. Scott, sup. (x) Cross T. Law, 6 M. & "W. 217 ; EardUy v. Imperial Bank of Englcmd, 10 L. J. Q. B. 46, N. S. ; EardUy v. Law, 12 A. & E. 802 ; Earvey v. Scott, 17 L. J. Q. B. 9 ; Dodgson, v. Scott, sup, {y) Field v. M'Kenzie, 16 L. J. C. P. 203 ; 4 C. B. 712 ; Harvey v. Scott, mp. (a) Per Parke, B., in Dodgson v. Scott, sup. (a) lb. (J) Bv/rmester v. Cropton, 18 L. J, Exc. 142 ; Nunm v. Lomer, ib. 247. (c) Per Parke, B. ib. 143. Digitized by Microsoft® Sect. 8. JUDGMENTS v. COMPANIES. I47 ment within any particular time. And he may therefore wait many wittin -what years without losing his remedy, save as against members of the *"°®' second class, who are not liable after three years from the time of ceasing to be so. Still, when the plaintiff sues out execution, he is bound to proceed on it with reasonable despatch against the members for the time being ; he cannot, after selecting one of the members of the company and proceeding against him without avail, lie by and then begin again (d) ; and, in such a case, persons who had not ceased to be members at the time of the contract, but have ceased to be so, and; probably, persons who have become members since the execution suspended, may shew cause against a rule on this ground (e). The scire facias against a former member ought to state the first v. former execution against members being such at the time of the execution ™ sued out (/). By the sixth sect, of the act, a certified copy of the return Eetum of TnQ n\ n firs made to the Stamp Office, under the fourth section, of the names of the existing members, is to be received in evidence that such parties were members of the company at the date of the return. And, by another sect., a return is to be made to the Stamp Office of the names, &c. of new members, and of those who have ceased to be members (g). If the name of a party, who has ceased to be a member, is not included in a return made under the eighth section, the primd facie evidence afforded by a former return, made under the sixth section, of his being a member of the company, is not rebutted by the omission of his name in a subsequent return, made under the sixth section, even though there is a positive affidavit that he ceased to be a member on a certain day. But the question must be tried on scire facias (h). It is not necessary that the creditor should first realise collateral securities given by the bank (i) ; and, it seems, that the partnership effects can be taken in execution under such a judgment (k). An allegation, that the party to be charged was a member at the time of the judgment obtained and has been so ever since, is bad for duplicity (Q. {d) Sank of Ungland v. Johnson, 18 son, sup. L. J. Exc. 238. (i) FicM v. M'Kenzie, sup. (e) lb. {k) n. (/) Ih. {I) Bank of Scotland v. Fenwick, 17 (g) Sect. 8. L. J. Exc. 92 ; Esdaile v. Trustwell, 16 (A) Meld V. M'Kenzie, sup. ; Harvey ib. 316 ; 2 Exc. 312. V. Scott, sup. ; Bank of England t. John- Digitized by Microsoft® ^ ^ 148 JUDGMENTS GENEEALLY. Chap. 15. Deceased partner. Judgments v. joint stock companies. Winding up Acts. This act contains no provision for execution against the personal representative of a deceased partner ; and in such a case the creditors would, it seems, be at liberty to resort to any other remedy which they could have independent of the act ; and this, as the debt would survive at law, is confined to relief in equity. By analogy, however, to the provisions of the act, the relief, if any, will not be given, if the deceased partner has been dead more, than three years before the bringing of the action (m). In order to obtain the advantage of a suit instituted by a third party for the administration of the estate of a deceased partner, the creditors should petition for leave to prove their debts in chambers. The Court will not refuse to issue a scire faciaa on a judgment against the company, on the ground of its being erroneous on its face {n). The act for the Eegistratibn of Joint Stock Companies (7 & 8 Vict. c. 110) contains clauses relating to execution under judgments, decrees, or orders, recovered against joint stock companies completely registered under the act, similar to the clause relating to execution upon judgments recovered against the public officer of a banking company under the 6 Geo. 4, c. 46, quoad the different classes of shareholders to be affected by the judgment ; but, with the additional provision, that, after a creditor has used due diligence in obtaining satisfaction against the effects of the company, he may obtain execution against the individual shareholder upon motion or summons, without suggestion or scire facias, after ten days' notice given (o). And the individual shareholders so proceeded against have remedy over against the company, by obtaining leave to issue execution against the company, upon motion or sumnions ; or, if that fails, they may have contribution in equity against their fellow shareholders. But the provisions of the act as to execution against shareholders, do not refer to execution at the suit of other share- holders, but of strangers only (p). When the affairs of a joint stock company had been carried into Chancery under the Winding-up Act (11 & 12 Vict. c. 45), the Court of common law would not, before the Jud. Acts, allow execu- tion to issue under 7 & 8 Vict. c. 110, until the creditor had proved ' (m) Barker v. Buttress, 7 Beav. 134 ; 13 L. J. Ch. 58. (n) Williams v. Sidmouth R. C. 2 Exc. 284 ; 36 L. J. Exc. 184 ; 15 "W. R. 895 ; 16 L. T. N. S. 426. (o) 7 & 8 Vict. c. 110, ss. 66, 68. (p) Peart v. Universal Salvage Co., 18 L. J. C. P. 23; Thompson v. U. S. Co., ib. Exe. 157, 242. Digitized by Microsoft® 149 Sect. «. UNDER WINDING UP ACTS. his debt in chambers, and used all means for obtaining payment given by the Winding-up Act (q). The notice required to be given by the 68th sect., before exe- cution can be taken out against any member of the company, is exhausted by an application to a judge at chambers, and a fresh notice is requisite in order to a fresh application, though made to the Court (r). The notice under this sect, need not, however, be personal notice (s) . When a rule nisi for leave to issue execution against a member of the company has been discharged for want of the ten days' notice, a second rule nisi may be obtained against the same party, upon due notice given (f). The returns of the names of the shareholders in a joint stock Returns of shareholders, company, made under 7 & 8 Vict. c. 110, are sufficient primd facie evidence, that the parties named in them are shareholders, to justify the Court in issuing execution against them under the 68th sect, of that act, if the fact is not denied, and the ten days' notice required by that sect., has been given to the party to be charged (u). The above act does not contain a provision that the returns shall be evidence that the persons named therein were members at the time of the return made, as the Banking Act does (a;). By the 36th sect, (y) of the Companies Clauses Consolidation Act, execution may issue against shareholders, to the extent of their shares in the capital unpaid, in manner therein provided. (9.) Contribution between lands subject to judgment. If a person purchases a portion of an estate, which is subject to a judgment, and execution is sued out against the purchaser only, the debtor, his heir, and even purchasers, of other portions of the land, are bound to contribute with him. But, if execution is sued out against any portion of the lands, which remain unsold, neither the debtor nor the heir will be entitled to contribution, in respect of any part of the lands which are in the hands of a purchaser, and the amount of consideration is immaterial (z). {q) Thompson v. U. S. Co., sup. Co., sup. (r) Corder v. Universal Cos Light Co., (x) 7 & 8 Vict. c. 110, s. 18 ; 7 Geo. 4, 17 L. J. C. P. 305. c. 46, s. 6. (s) Turner v. Metropolitan Live Stock (y) 8 & 9 Vict. c. 16. Co., 17 L. J. Exo. 264. (z) Sir W. HarberVs case, 3 Co. 12 b ; (I) Corder v. Universal Gas Light Co., 2 Eq. Ca. Abr. 222, pi. 7 ; Prid. Judg. 18 L. J. C. P. 90. p. 48, ed. 4 ; 3 Co. 14 b. («) Turner v. Metropolitan Live Stock Digitized by Microsoft® 150 JUDGMENTS GENERALLY. Chap. 15. Contribution, With a view to remedy the hardship, to which creditors were subject, of having their executions avoided, if the extent omitted any portion of the land which was liable to the judgment, it was enacted by 16 & 17 Car. 2, c. 5, s. 2, that, where any judgment, statute, or recognizance, shall be extended, the same shall not be avoided, or delayed, by occasion that any part of the lands are, or shall be, omitted out of such extent ; saving always to the party, or parties, whose lands shall be extended, his and their heirs, executors, and assigns, his and their remedy for contribution against such person or persons, whose lauds are, or shall, be, omitted out of such extent, from time to time. But, a purchaser has no right of contribution from purchasers of other portions of the estate of the debtor, if they derive title under a conveyance of earlier date (a). Judgment creditor pur- cliasing part of the lands extended. Belease of part of land charged not to affect judgment. (10.) ilffect of release of part of land charged. If a judgment creditor, having become tenant by elegit, bought part of the lands extended, this would have discharged the residue of the lands, and satisfied' the judgment (&). But, now, by sect. 11 of 22 & 23 Vict. c. 35, the release from a judgment of part of any hereditaments charged therewith is not to affect the validity of the judgment, as to the hereditaments remaining unreleased, without prejudice, nevertheless, to the rights of persons interested in the hereditaments remaining unreleased (c) . (11.) Satisfaction of judgments. The proper mode of discharging a judgment, is, by entering up satisfaction on the record {d) ; or the judgment may be released by deed (e), which, although it does not vacate the judgment, was good cause, in case execution was sued out, on which to ground a writ of cmditd querela to annul the execution (/), or a motion in Court ig) ; and, even where the writ was set aside at law, equity (a) EartUy v. Flahertie, 1 LI. & G., Temp. Plunlset, 219 ; 5 Jai-m. Byth. by Sweet, 61 ; Handcock v. H. 1 Ir. Ch. R. 467. (6) Ross V. Pope, Plow. 72 ; Shep. T. 365 ; Bac. Ab. Execution, B. 7 ; Band- cock V. H. sup. ; Sele v. Lord Bexley, 17 Beav. 14 ; 20 ih. 127 ; Knight v. Bowyer, 4 De G. & Jo. 619. (c) See the Irish Act, 11 & 12 Vict. c. 48, s. 72 ; Handcock v. H. sup. (d) For the mode of doing this, see Archb. byPrent. 638,. ed. 13. (e) Litt. s. 507. (/) Bac. Ab. Execution, C, ; et vide Shep. T. by Pr. 323, 343 ; Barrow V. Cfray, Cro. Eliz. 552. (g) Ih. See Ouohterlony v. Qihson, Digitized by Microsoft® Sect. 11. SATISPACTIOX OF JUDGMEXTS. jgl gave relief (h) ; but now proceedings by /luditd querdd are abolished (i), and relief is obtained by motion in Court. It seems, that a release might have been pleaded in bar to a E«lease. scire facias to revive the judgment (j) ; and such release, before the Jud. Act, was at law valid, notwithstanding the creditor had previously assigned the land extended {k) ; and it was held, that, after a lapse of twenty years, the Courts would presume the judg- ment satisfied, unless the laches was explained (Q ; and, it seems, the defendant might, on an old judgment, plead payment under 4 Ann. c. 16, s. 12 (m). The 23 & 24 Vict. c. 115 (n), has provided greater facilities Satisfaction ■ ^ '^ of registered for entering on the register satisfaction of a registered judgment, judgments. lis pendens, decree, order, rule, annuity, rent charge, or writ of execution, and for the issue of certificates of the entry of such . satisfaction. Where the requirements of this statute cannot be complied with, a rule, or order, of the high court directing satis- faction to be entered upon the record of the judgment must be obtained (o). If a warrant of attorney to confess judgment is given by way of Warrant of collateral security, defeasanced on payment of the interest, after the secure interest rate, and at the time, and in manner recited in a mortgage deed of °" ^' even date, and the interest is paid up to the day fixed for payment in the mortgage deed, though the principal be still unpaid, the Court will order satisfaction to be entered on the judgment. But the application will be refused, if, from the introduction of other words into the defeasance, there is the least doubt if the security of the judgment is to be so limited (p). Prima facie, a creditor has a right to take out execution upon an Execution, for unsatisfied judgment, for the full amount of the debt or damage recovered. If the judgment has been satisfied in part, application may be madp to the Court for relief. But an action on the case did not, before the Jud. Act, lie for levying the whole sum secured by the judgment (at least if malice and want of probable cause were not alleged, even if it would then) ; nor can the money, when 5 Man. & G. 579 ; 12 L. J. C. P. 278 ; (I) Peake's Evid. 25 u. ; Green/ell v. Barker v. St. Qucnlin, 13 L. J. Exc. Girdlestmie, 2 Y. & C. 662, Exc. 144 ; 12 M. & W. 441. (m) Kemys v. Suscomb, 2 Atk. 45. (A) Williams v. Roberts, 8 Ha. 315. (n) Sect. 2. (i) Sup. p. 136. (o) 16 & 17 Vict. c. 113, s. 144. (j) Shep. T. by Prest. 343. (p) Atkinson v. Jones, 2 A. & E. 439 ; (k) Bac. Ab. tit. Release (D). et vide Xing v. Qreenhill, 6 Man. & G. 59. Digitized by Microsoft® what amount. 152 JUDGMENTS GENEBALLT. Chap. 15. Receipt of more than amount of judgment. levied, be recovered back in an action for money had, and received, on the ground that the execution was for more than actually re- mained due (q). And, on the other hand, a writ of elegit, oxfi.fa., cannot be sued out for a part only of the sum secured by the judgment, unless it show upon the face of it, that the residue of the judgment debt has been satisfied, or otherwise disposed of (r). Where a judgment was entered up, on a warrant of attorney, for i61800 to secure an annuity, and the judgment creditor received more than the ^61800, the Court ordered (s) satisfaction to be entered up, as of the date on which a later judgment was entered up, and directed suras, received by the first judgment creditor since that time, to be paid to the second judgment creditor, but not any of the sums received prior to the signing of the second judgment. (12.) Statute of Limitations. How far judgments are barred under the Statute of Limitations, see inf. pp. 910 and 917. iq) Do Medina v. Cfrove, 10 Q. B. 152, 764. 172. (s) Cottle V. Warrvngton, 5 B. & Ad [r) Sherwood v. Clark, 15 M. & W. U1 ; 2 N. & M. 227. Digitized by Microsoft® 153 CHAPTER XVI. ATTACHMENT OF DEBTS. Sect. Page 1. Lord Mayor's court 153 2. Common Law Procedwre Act, and Judicature Acts . 154 (1.) Lord Mayor's court. By the custom of foreign attachment in London, only debts, which have wholly accrued within the city, or debts due by, or to a citizen, or resident, withiu the city, can be attached (a). If the objection of want of jurisdiction, or any other objection, is not raised by the debtor in the Lord Mayor's court, he cannot set it up in a subsequent action against the garnishee to recover the debt which the latter was compelled to pay under the attach- ment (b). The custom does not apply to debts, the beneficial interest in which is in a person other than the debtor sued (c). The payment made by the garnishee cannot be set up in an action Debtor dead, by the personal representatives of the debtor, where the proceedings in the Mayor's court were had, when the debtor was dead (d). In order to attach a debt in the hands of the garnishee by the Jidgmejit not '' required. custom of London a judgment is not required to be obtained against the debtor. The attachment can be dissolved, by the surrender of the original defendant in prison (e). A debt due from a corporation cannot be attached (/). Whether shares in a mining company can, qiuere (g). A creditor, who, after his debtor's death, obtains an attachment in (a) Mayor of London v. Cox, 2 L. R. (d) McUthey v. Wisernan, 18 C. B. N. H. L. 239 ; aflarming, 2 L. E. C. P. 32 ; S. 657 ; 11 Jar. N. S. 603. 8 Jur. N. S. 542 ; Sanque de Credit Com- (e) Ee Wilkins, 8 L. E. Q. B. 107. mercial v. De Gas, 6 L. E. C. P. 142 ; (/) Lmdon JoirU Stk. Bk. v. May. of Cooke V. Gill, 8 *. 107. London, 1 C. P. Div. 1. (b) Westohy v. Day, 2 EI. & Bl. 605. (?) Tredinnick v. Oliver, 5 H. & N. (c) Jh. And Com. Dig. Attachment, D. 780, Digitized by Microsoft® 154 ATTACHMENT OP DEBTS. Chap. 16. the Lord Mayor's court against part of the assets, gains no priority over the fund attached, as against the other creditors of the deceased (h). Examination of judgment debtor. Gamisliee taken in execution. Judgment debtor taken in execution. When refuised. What are judgments within the Acts. Order to attach debt due by gar- nishee. (2.) Common Law Procedure Act, and Judicature Acts. By the C. L. Proc. Act, 1854 (i), any creditor, who has ob- taified a judgment in any of the superior courts, may apply to the Court or a judge of any of the superior courts at Westminster ; and by the Jud. Act (fc), where a judgment is for the recoTery by, or payment to, any person of money, the party entitled to enforce it may apply to the Court, or a judge, for an order that the judgment debtor be orally examined, as to whether any and what debts are owing to him, before an officer of the Court, or such other person as the Court or judge shall appoint ; and the Court or judge may make an order for the examination of such judgment debtor, and for the production of any books, or documents. The garnishee order may be obtained against the garnishee, although he has been taken in execution for the debt (Z). But a judgment creditor, who has taken his. debtor in execution, cannot attach his debtor's debts under the act (m). Under the C. L,. Proc. Act, 1860, the Court or judge may refuse to interfere where, from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious (n). Orders, for the payment of money or costs, which have the force of judgments for the purpose of the particular remedies given by 1 & 2 Vict. c. 110, and other judgment acts, are not judgments for the purpose of attachment within the Acts (o). The Court, or a judge, may, upon the ex parte application of such judgment creditor, either before, or after, such oral examination, and upon affidavit by himself or his solicitor stating thait judgment has (h) Bedhead v. Welton, 29 Bear. 521 ; Financial Corporation,, nem, not executed in manner aforesaid, shall not be rendered valid executed invalid, by proof, that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same (c). (a) "Which re-enacts 1 & 2 Vict. o. 110, 79, 13 ed., 13). s. 9, repealed by 32 & 33 Vict. c. 83, (i) Jnd. Act. 73, s. 87. s. 20 (see generally Arch. Pr. by Prent. (c) 32 & 33 Vict. c. 62, s. 25. Digitized by Microsoft® 160 Index. Ireland. waeeants of ATTOENET. Chap. 17. By another act (d), an additional book or index is directed to be provided, in which only the names, additions, and descriptions, of the respective defendants, or persons giving the warrants or cog- novits, are entered, and which may be searched on payment of the additional fee mentioned in the act (d). Warrants of attorney to confess judgments in Ireland are sub- jected to nearly the same regulations (e). 3 Geo. 4, 0.39. Memorandum of satisfaction. Filing of judge's order. 2. Filing of warrant of attorney. Where such warrant of attorney to confess judgment, or cognovit, or a true copy thereof, is not filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench within twenty-one days next after execution, as required by 3 Geo. 4, c. 39 (which makes it necessary to file an affidavit of the time of execution, as prescribed by that statute (/) ), it shall be deemed fraudulent, and shall be void ; and if any such warrant of attorney, or cognovit, so filed was given subject to any defeasance or condition, such defeasance or condition shall be written upon the same paper or parchment with the warrant or cognovit before the filing thereof; otherwise, the warrant or cognovit shall be void (g). Power is given to any of the judges of the Court, in which the warrant of attorney or cognovit is given, to order a memorandum of satisfaction to be written upon such warrant, cognovit, or copy thereof, respectively as aforesaid, if it shall appear that the debt, for which the warrant or cognovit was given, has been satisfied or discharged (li). Where a judge's order made by consent is given by a defend- ant in a personal action, whereby the plaintiff is authorized forthwith, or at any future time, to sign or enter up judgment, or to issue or take out execution, whether such order is made subject to any defeasance or condition, or not, the order, if the action is in the Court of Queen's Bench, and a true copy of the order, if the action is in any other Court, shall, together with an affidavit of the time of such consent being given, and a description of the residence and occupation of the defendant, be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench (d) 6 & 7 Vict. c. 66. (e) 3 & 4 Vict. c. 105, ss. 12—18 in- clusive. (/) Acraman v. Herniman, 16 Q. B. jr. S. 998 ; 16 Jur. 1008. (?) The Debtors Act, 1869, 32 & 33 Vict. c. 62, s. 26. {h) 3 Geo. 4, c. 39, s. 8. Digitized by Microsoft® Sect. 2. FILING OF WARRANT OF ATTORNEY. jg. within twenty-one days after the making of the order, otherwise Piling of the order, and any judgment signed or entered up thereon, and any ^"^^* ^ "'''^^''' execution issued or taken out on such judgment, shall be void (i) ; and the provisions of 3 Geo. 4, c. 39 (ss. 5, 8), and of 6 & 7 Vict. c. 66, as to the filing warrants of attorney and cognovits with the clerk of the dockets and judgments, and for the making entries by such clerk, and search in relation thereto, and for entering satisfac- tion thereon, and for fees for search and filing, and taking office copies, extend and apply to every such judge's order (k). The acts apply to warrants of attorney, whether executed in this, or in a foreign, country (l) ; and it seems that, if judgment be signed on a warrant of attorney which is not made in compliance with the statutes, the defect cannot be waived (m) ; and the statutes do not apply where the defendant is himself an attorney (n). By r. 25, H. T. 1853, no judgment shall be signed on any cognovit, or warrant of attorney, without such cognovit or warrant be delivered to, and filed, by the master, who is thereby ordered to file the same in the order in which they are received (o). It seems, that in cases coming within the 3 Geo. 4, c. 39, the filing of warrants of attorney, or cognovits, under this rule of Court is unnecessary (p). (3.) By tvhom it may he given. A warrant of attorney cannot be given by an infant (q) ; and, if he give a joint warrant of attorney, the judgment will be set aside as to him (r) ; nor by a married woman (s) ; nor by a partner, to bind his co-partners (t) ; nor by an executor, to bind his co-executors (u). It is not an objection to signing judgment on a warrant of attor- ney that the defendant has, since the execution, become insane (a;). (i) 32 & S3 Vict. c. 62, s. 27. v. Woodrojfe, 7 Dowl. 166 ; 4 M. & W. (k) lb. s. 28. 650 ; Stoi-ton t. Tomlins, 10 Moore, 172 ; (J.) Davis V. Trevanion, 2 D. & L. 743. 2 Bing. 475 ; Weaver v. Stokes, 1 M. & (ot) Oriypei- v. Bristow, 6 M. & "W. "W. 203 ; 1 Tyr. & G. 512 ; 4 DowL 724. 807. ('■) ■^shlin v. Langton, 4 Mo. & Sc. (m) Downes v. Garbett, 7 Juv. 800 ; 12 719 ; Molteux v. St. Aubyn, 2 W. Bl. L. J. Q. B. 269 ; 2 Dowl. N. S. 939 ; 1133. Chipp V. Harris, 6 M. & W. 430. (s) Oulds v. Sansom, 3 Taunt. 261 ; (o) James v. Seward, 3 Q. B. 948 ; Faithorne v. Blaquire, 6 M. & S. 73 ; 3 G. & D. 264. Selby v. WTiite, 4 Leg. Obs. 390. {p) Bushell V. Board, 16 L. J. Q. B. (<) Brutton v. Burton, 1 Chit. R. 707 ; 57 ; 4 D. & L. 359. Hunter v. Parker, 7 M. & "W. 322. (q) Saundffraon v. Marr, 1 H. Bl. 75 ; (u) Elwell v. Quash, 1 Str. 20. Wood V. Heath, 1 Chit. E. 708 n. : Oliver (x) Piggott v. Killick, 4 Dowl. 287. Digitized by Microsoft® 162 WARRANTS OP ATTORNEY. Chap. 17. Effect of marriage. If a feme sole sign a warrant of attorney, the Court or a judge will, after her raarriage, allow judgment to be entered up against the husband and wife («/). The judgment upon such warrant of attorney would, in regard to the liability of the husband, be subject to the late acts {z). If a warrant of attorney is given to a feme sole, her subsequent marriage is not a revocation of it ; and judg- ment will be entered up in the name of the husband and wife {a) ; as where a warrant of attorney was given by W. to D. and S., and W. and S. afterwards intermarried (i). Expressly named. (4.) Who may be the solicitor. The solicitor for the plaintiif cannot act for the defendant (c) ; nor the London agent of, nor a solicitor acting as the clerk of, the plaintiff's solicitor (d) ; nor can the same solicitor act for both parties (e). Although the solicitor must be ' expressly named ' by the defendant, yet the appointment will not be invalid, if the solicitor was suggested by another person, or even introduced by the creditor himself, or even paid by the creditor (/), so long as the solicitor is bond fide appointed by the defendant (g). (5.) Duties of the solicitor. The solicitor is to attend, at the debtor's request, to inform him of the nature and effect of the wai-rant or cognovit before execution. The solicitor is only bound to do this, if he be required by the debtor, and is not bound to read the instrument to him, unless he desires it. Nor can the debtor complain that proper advice was not given {y) Staples v. Purser, 2 Dowl. 764 ; 3 Mo. & Sc. 800 ; Pocock v. Fry, 8 Dowl. 126 ; Anon. 1 Show. 89; Hartford r. Mattingly, 2 Chit. R. 117 ; Higginhotlom v. H. 8 Dowl. 126. [z) 33 & 34 Vict. c. 93, s. 12 ; 37 & 38 Vict. c. 50. [a) Anon. 1 Salk. 117. See Dolling V. White, 22 L.' J. Q. B. 327. (&) Harder v. Lee, 3 Burr. 1469 ; Metcalfe v. Boote, 8 D. & R. 46 ; Anon. 7 Mod. 53. (c) Mason v Kiddle, 5 M. & W. 513. (rf) Pryvr v. Swaync, 2 D. & L. 37 ; Durrani v. Blurtmi, 9 Dowl. 1015. (e) Cooper v. Grant, 12 C. B. 154 ; Rising v. Dolphin, 8 Dowl. 309 ; Sander- sonv. TVestley, ib. 412 ; Hirst v. Hannah, 17 Q. B. 383. (/) Saigh v. Frost, 7 Dowl. 743 ; HaU V. Dale, 8 ib. 599'; Pease v. Well's, ib. 626 ; Barnes x. Pendrey, 7 ib. Til ; Bligh v. Brewer, 3 ib. 266 ; Rice v. Lin- stead, 7 ib. 163 ; Twylm- v. Nicholls, 6 M. & W. 91 ; Joel v. Dicker, 5 D. & L. 1; 16 L. J. Q. B. 359. ig) Walton v. Chandler, 1 C. B. 306 ; Levinson v. Syer, 15 Jur. 1011, 21 L. J. Q. B. 16. Digitized by Microsoft® Sect. 5. DUTIES OP THE SOLICITOE, lg3 him, either by the solicitor's neglect, or in consequence of his own omission to give the solicitor proper explanations (/i). The requirements as to the attestation, are threefold, comprising, Attestation. subscription by the solicitor as a witness ; a declaration that he is solicitor for the person who executes ; and subscription as such solicitor. The attestation, though not necessarily in the words of the statute, must shew, by necessary implication, that all these requisites have been fulfilled (i). The solicitor may have explained the instrument to the debtor, without acting as his solicitor in doing so, for he may have done it without the debtor's request, or before being employed as his solicitor ; and he may subscribe the instrument, yet not as the debtor's solicitor, because, though previously so named, and acting, his employment may cease before the a,tte8tation {k). It is not necessary for the solicitor to state in the subscription, that he is expressly named by the debtor, or that he attended at his request (I). As to what amounts to a proper attestation within the act, see cases in note (m). A cognovit actionem in an action of ejectment was within this clause ; but not a warrant of attorney (n). An agi'eement to waive a scire facias to revive judgment upon a warrant of attorney, entered into after judgment has been signed upon the warrant, did not, before the Jud. Act, need to be executed with the formalities required for warrants of attorney by this clause (o). The signing of a consent to a judge's order for the stay of proceedings on payment of the debt and costs, and in default that (h) Fish. Mtg. 114, ed. 3 ; Haigh v. & W. 294. Frost, sup. ; Taylor v. Nicholls, sup. ; (l) Gay v. Hall, 5 D. & L. 422. Joel V. Dicker, sup. ; Hale v. Dale, sup. ; (m) Ledgard v. Thompson, 11 M. & W. Pease v. WelU, 8 Dowl, 626; Barnes 40; Hihbert v. Barton, 10 ib. 678; Mk- V. Pendrey, sup. ; Bligh v. Brewer, ington v. Holland, 9 ib. 659 ; Potter v. sup. ; Sice v. Linstead, 7 Dowl. 153. Nicholson, 8 ib. 294 ; Oliver v. Wood- (i) Fish. Mtg. 114, ed. 3 ; Pocock v. roffe, sup. ; Everard v. Poppleton, sup. Pickering, 18 Q. B. 789 ; Holt v. Kcr- Lcims v. Zoi'd Kensington, 2 C. B. shaw, 5 D. & L. 419 ; Zciois v. Lord 463 ; Phillips v. Gibbs, 16 M. & W. Kensington, 15 L. J. C. P. 100 ; Phillips 208 ; Gay v. Hall, 18 L. J. Q. B. 12 ; V. Oibbs, 16 M. & W. 208. Levinson v. Syer, 15 Jur. 1011. [k) Fish. Mtg. 114, ed. 3 ; Hibbert v. («) Doe v. Howell, 12 A. & E. 696 ; Barton, 10 M. & "W. 678; Oliver v. Doey. Kingston, 1 Dowl. N. S. 263. IFoodroffe, 4 ib. 650 ; Everard v. Pop- (o) Cooper v. Norton, 16 L. J. Q. B. pUton, 5 Q. B. 181 ; Pooh v. Hobbs, 364. 8 Dowl. 113 ; Potter v. Niclwlson, 8 M. Digitized by Microsoft® m 2 164 WARRANTS OP ATTORNEY. Chap. 17. Cognovit the plaintiff may sign final judgment and issue execution, does not _4gt."' * amount to the giving of a cognovit within the act, which only applies to those given hy a party out of Court (jp); whether an attorney be present before the judge to consent to the order on behalf of the defendant, or not (g). (6.) Setting aside a warrant of attorney. Application to set aside a warrant of attorney under these acts, can only • be made by the party himself, or by his attorney duly authorised by him for that purpose (r). But it may be made, though defendant have become bankrupt since his execution of the warrant (s). Third party. The provision is for the benefit of the defendant only, and, therefore, a third party who may be prejudiced by a judgment against the debtor cannot raise an objection on the ground of \ 1874. of the wife, contracted before the marriage (s. 1) ; but the husband husband, is only liable to the extent of the following assets (s. 5) : — 1. The value of the personal estate in possession of the wife which shall have vested in the husband. 2. The value of the choses in action of the wife, which the husband shall have reduced into possession, or which, with reasonable diligence, he might have reduced into possession. 3. The value of the chattels real of the wife, which shall have vested in the husband and wife. 4. The value of the rents and profits of the real estate of the wife, which the husband shall have received, or, with reasonable diligence, might have received. 5. The value of the husband's estate or interest in any pro- perty, real or personal, which the wife, in contemplation of her marriage with him, shall have transferred to him, or to any other person. 6. The value of any property, real or personal, which the wife, in contemplation of her marriage with the husband, shall, with his consent, have transferred to any person, with the view of defeating or delaying her existing creditors. (/) Siscoe V. Kemudy, 1 Bio. C. C. Lmxdcm & Proviiwial Bank v. Bogle, 7 17 n ; Sparkes v. Bdl, 8 B. & Cr. 1 ; Ch. D. 773, V. C. Bacon. Lochmod v. Salter, 5 B. & Ad. 303 ; (h) 33 & 34 Vict. c. 93, s. 12 ; 37 &38 Chubb V. Stretch, 9 Eq. 555, V. C. Malins. Vict. c. 50. (g) Sanger v. S. 11 Eq. 470, M. R. ; (i) 37 & 38 Vict. e. 50. Digitized by Microsoft® 216 MORTGAGES & DISPOSITIONS OF MAEEIED WOMEN. Chap. 21. Conflict of laws. Cases under the Act. An Englishman having married, in England, a lady who had contracted debts before her marriage, in Jersey, where the hus- band is liable for debts of the wife contracted before marriage, was held not liable beyond assets derived from his wife (k). (10.) Separate property under Married Women's Property Act. Under the Married Women's Property Act, 1870 (I), the power of a married woman to mortgage, or otherwise dispose of, property is extended. By it, the following property, acquired by married women after the act, is declared to be her separate property, viz. : — 1. Earnings in her separate trade or employment. 2. Deposits in savings banks in her name. 3. Stocks and funds, not being less than 20i., except invest- ments made with the money of her husband, vnthout his consent (ss. 3 & 9). 4. Shares or stock in joint stock companies or societies, subject to a similar exception (m). 5. Policies of insurance effected by her on her life, or that of her husband, expressed to be for her separate use, or effected by her husband for her separate use (n). But creditors' rights are preserved, in case of fraud (ss. 6 & 10). And (where the married woman has been married after the passing of the act). 6. Personal property, to which she has become entitled as next of kin of an intestate, not restricted to any amount (o). 7. Any sum of money, not exceeding 200L, to which she has become entitled under any deed or will. 8. Eents and profits of real estate descending on her as heiress. But subject, in all these cases, to any settlement affecting the same. It follows that a married woman can alone dispose of any chose in action, or reversionary interest, devolving upon her, as next of kin. A business carried on by a married woman after her marriage, in (fc) JDe Greuchy v. Wills, i C. P. 362. (Z) 33 & 34 Vict. c. 93. (m) Sects. ik5. D. (w) Sect. 10 ; SoUv. EvercM, 2 Ch. D. 266. See Mellor's Policy Tr. W. N. 1878, 183. (o) Sect. 7. Digitized by Microsoft® Sect. 10. MARRIED WOMEN'S PROPERTY ACT. 217 the same way as before, was held to be her separate property under the act (p). The separate estate of a married woman in earnings under the Death of wife, act, becomes, upon her death, equitable assets, and divisible amongst her creditors, pari passu ; so that her executor has no right to retain in full his own debt thereout {q). Stocks and funds must have been transferred into her name, in Stocks, manner directed by s. 3 (r), though her husband has deserted her (s). A policy of insurance, effected in the name of a married woman PoUoy of to her separate use, by her husband, although in embarrassed cir- cumstances, belongs to her (i). In an action to charge the wages and earnings of the vrife, under Husband must the late acts, the husband must be made a party defendant (m). insurance. be party. (11.) Judicial separation, dc. In case of judicial separation or desertion, all property acquired by, or which may come to or devolve upon the wife belongs to her, as a/eme sole {x), although there is a clause against anticipation {y) ; and although the property, which had been vested before, had not been reduced into possession until after, the desertion {z). In case of desertion, and an order for protection of the earnings 21 & 22 V. and property of the wife, her property, in remainder or reversion, "' ^'^^' at the date of the desertion, or decree for judicial separation, is included therein (a). Under these acts, the wife is entitled to re- versionary personalty, which she and her husband had mortgaged, as soon as it falls into possession (6). There have been many cases under these acts (c). (p) Ashworih v. Outram, 5 Ch. D. 228, M. E. ; Bathe v. Bank of Englamd, 923, C. A. ; Lovell v. Newton, 4 C. P. 4 K. & J. 564 ; Wliittingham's Trusts, 10 D. 7. Jur. N. S. 818, V. C. Wood. (q) Be Poole's Estate, 6 Ch. Div. 739, {y) Cooke v. BulUr, 26 Beav. 99. V. C. Hall. (z) Coward's Purchase, 20 Eq. 179, M. (r) ff award v. Bank of England, 19 E. ; Nicholson v. Drwry Buildings Estate Eq. 295, M. R. Co., 7 Ch. D. 48. (s) lb. {a) 21 & 22 Vict. c. 108, s. 8. (<) Salt V. Everall. (6) Be Insole, 35 Beav. 92 ; 1 Eq. 470 ; («) Bantocks v. Demeric-I^lache, 3 17 Jur. N. S. 1011. See WhittinghanCs C. P. D. 197. See also 37 & 38 Vict. c. Tr. 10 ib. 818, V. C. Wood ; Be 50 s. 1. Coward ^ •' ° notice should the mortgagor and those claiming under him, and need not be be given. given to persons who claim paramount to the mortgagor but, at the same time, subject to the mortgage, even though such persons may have a right to redeem, and to require an account of the proceeds of the sale (l). Where the notice is to be given under the hand of the mortgagee — queer e, whether a letter of the solicitor is enough (m). A notice served on the infant heir arid his guardian was held sufficient («). And it is unnecessary to provide that the notice shall be valid notwithstanding the disability of the person on whom it is served (o). Where the notice is to be left at the last place of abode, fixing it on the door of the house, which answers that description, is sufficient (p). If there be no person in existence to whom, under the terms of the power, notice should be given, the power cannot be exer- cised (g). (g) Sanders v. Richards, 2 Coll. 568. {n) Tracey v. Lawrence, 2 Drew. 403; (A) Curling v. ShtUileworih, 6 Bing. 18 Jur. 590; Woods v. Ilr/de, 10 W. E. 121. 339 ; Seeves v. Baker, 18 Beav. 372 ; 18 (i) Hampshire v. Bradley, 2 CoU. 34. Jur. 588. {k) Miller v. Cook, 10 Eq. 641, V. C. (o) lb. Bobertson v. Lockie, 15 L. J. Stuart. Ch. 379, a case of insanity. (?) Maior V. Ward, 5 Ha. 598. See ( p) Major v. Ward, sup. Hawkins v. Bamsbotiom, 1 Pri. 138. (?) Parkinson y. Hanbmry, 1 Dr. & (m) 1 Sug. Pow. 253, ed. 7. Sm. 143 ; 2 L. R. H. L. 1. Digitized by Microsoft® 250 MORTGAGES "WITH POWER OF SALE. Chap. 26. Waiver. Month — whether lunar or calendar. 13 & 14 Vict, c. 21. A six months' notice, served after its date, was held substantially sufficient, where the sale did not tafce place till after six months from the time of service (r) ; and the fact that the agreement for sale was made before the expiration of the notice, is immaterial if the agreement were conditional on non-redemption in the mean- time (s). Where the parties entitled to the exercise of the power have waived the default, a fresh notice is necessary (t). If there is a condition imposed on the mortgagee before he can exercise his power of sale, he will be restrained if the condition is not performed by him (u). The contract for sale binds the mortgagor (x). The notice is generally of six calendar months. A month in law is, primd facie, a lunar month or twenty-eight days, unless otherwise expressed (y). But, in mortgage transactions, a month means a calendar month. It has been so decided in case of a foreclosure (z), and was so considered (though, under the circum- stances, it was not necessary to decide the point), upon a covenant in a mortgage to pay the money at the end of six months (a) ; and the same rule would be applied to any other computation of time relating to mortgages. The practice of conveyancers, how^ ever, is to specify calendar months as well in mortgages as in other instruments. In considering what is the length of a calendar month, it is sufficient, when the months are broken, whatever may be the length of either, to go from one day in one month to the corresponding day in the other (b). The act 13 & 14 Vict. c. 21, enacts (s. 4), that, in subse- quent statutes, the word ' month ' shall mean calendar month, unless words be added showing lunar month to be intended. (4.) Special condAtions. The mortgagee with power of sale may sell under special (r) Metiers v. Erovm, 9 Jur. N. S. 958; 33 L. J. Ch. 97. (s) Major v. Ward, 5 Ha. 798. («) Tommey v. IFhite, 3 H. L. 49. (u) Gill V. Newton, 14 W. R. 490, L. J. , (a) Outtiridge v. Fletcher. 13 W. R. (2/) 1 Staph. Comm. 281, ed. 8, and cases cited in notes q and r. (a) ATwn. Barnard. Ch. 324 ; 2 Eq. Ca. Ab. 605. (o) Dyke v. Sweeting, WUles, 585, 588. (6) Per Cockburn, C. J. va. Frurminr. Read, 11 W. R. 802. And see 2 Dav. Digitized by Microsoft® Sect. i. SPECIAL CONDITIONS. 251 conditions, if not of a depreciatory character (c), although strin- gent (d). A condition that the vendor may rescind, if unwilling to meet objection, is valid (e) ; also that the equitable interest only will be Only equitable sold (/) ; and as to improper condition on sale of a reversion, see {g). An advertisement is not necessary (h). In absence of special restriction, a mortgagee may sell, by auction or private contract, but, if either mode of sale is alone specified, the other cannot be resorted to (i). (5.) When sale will be restrained. It has been said, that if the power of sale is sought to be exer- cised for exorbitant purposes, without a due regard to the interests of the parties concerned, the Court will interfere, under certain circumstances, to prevent an arbitrary exercise of that power ; but not without the actual deposit of the sum to which the mortgagee is entitled (k). In the case alluded to, the mortgagee sold a re- versionary interest in stock expectant on the death of a woman, without issue, by her husband, so soon after the husband's death, that there might have been a posthumous child born, but there was no legal representation at the time the property was advertised for sale, though the widow offered to pay the debt and costs if the mortgagee would postpone the sale until an assignment was prepared ; Sir J. K. Bruce, V. C, held that the mortgagee had, by his conduct, forfeited his legal right to sell ; but the L. C. reversed that decision (l). The pleadings in a suit for these purposes must clearly dis- close the fraud or irregularity, in respect of which relief is sought (m). But the sale has been set aside as oppressive and irregular, where Sale when set it was made for a collateral purpose (that of expelling the plaintiff (c) Eohson V. Bell, 2 Beav. 17. And (h) Smith v. Durrani, 1 De G. & Jo. see Ord v. Noel, 5 Mad. 438 ; 9 Byth. 535 ; 26 L. J. Oh. 830 ; appealed to by Jarm. 406, note i. H. L. but not prosecuted, 9 H. L. 192. (d) Kershaw v. Kdloio, 1 Jur. N. S. (i) 1 Dart. & Barb. 65, ed. 5 ; Brouard 974. V. Dumaresque, 3 Mo. P. C. 457 ; Bcyus- (e) FalknerY.EquUable ^^ ^^ usual in modern settlements, the trusts are by sale or portions. mortgage to raise the portions after the parent's death, or in his lifetime, if he shall so direct ; and if the parent is willing that the portion shall be raised by mortgage in his lifetime, or, if the term has fallen into possession, the usual mode of raising the portion is, that the child shall assign to the mortgagee his share of the sums to be raised, aiid give the mortgagee a power of attorrfey to receive it : then the tenant for life, if the term is reversionary, makes a demise of a proportional part of the estate to the mortgagee for ninety-nine years, if the tenant for life shall so long live, upon trust {q) Hehhiethwaite v. Owrtwright, For. (i) Otway v. 0. 2 Eq. 725, V. C. 30.- Wood. (r) 3 y. & 0. 142 ; and see Cotton y. (u) TJwmpson v. Hudson, 2 ib. 612 C. MSS. case, ib. note. And Gough v. M. E. ; 2 Ch. 255 ; reversed on other And/rews, 1 Coll. 59. grounds, 4 L. E. H. L. 2. (s) Hwm V. Rwnddl, 2 S. & S. 174. (a) Armstrong \. A. 18 Eq, 541, M. E. But qiMsre, the construction of the trust. Digitized by Microsoft® Sect. 2. THE MODE OF EAISING PORTIONS. 269 to permit the tenant for life to receive the rents until default is made in payment of the interest, and then to receive the rents and retain the interest. The trustees of the term assign a proportional part of the premises comprised in the term to the mortgagee, and there is introduced a proviso for redemption by the tenant for life, or persons in remainder, on payment of the portion and costs, &c. The tenant for life, or (if the term is in possession) the remainder- man (if he will concur), covenants for the payment of the money and for the title. Where an annual sum is directed to be raised for maintenance, Maintenance, and there is an existing life estate, and it is not clearly expressed arrear. that the maintenance is not to commence until after the determina- tion of that estate, the question of intention arises as in the case of the portion itself. If it is ascertained to be the intention that the maintenance shall commence notwithstanding the Ufe estate, but the payment of it is clearly confined to be out of annual profits, it must from necessity either encroach on the life estate, or run in arrear ; the former can never be considered the intention, as the term is reversionary to the estate ; the maintenance must therefore run in arrear, and when the trust term falls into possession, all the arrears must be paid (j/). If the trusts for raising the portion and maintenance are extended to sale or mortgage, it was for some time considered doubtful whether the Court would raise the maintenance by way of mortgage ; for it is manifest there is some difl&culty in • accomplishing it, inasmuch as the maintenance is a running sum becoming due quarterly or half-yearly ; and in Pierpoint v. Lord Cheyney (z) Lord Chancellor Parker said that he had not been enabled to find a single precedent for mortgaging a reversion for maintenance ; but in the subsequent case oi Ravenhill v. Dansey {y), Lord Chancellor Macclesfield considered it clear, that when the child had no other maintenance, it had been decreed to be raised by mortgage of the reversionary interest of the term; and (a), where the term was not reversionary, but the trust was to raise the portion on the death of the jointress, who had a rent charge, the Master of the EoUs gave maintenance during the life of the widow, and seemed to be inclined to think, that even if the trust had been reversionary, maintenance might, if necessary, have been raised by sale or mortgage {a). And the same principle was followed by the House of Lords (y) Bavcnhill v. Dansey, 2 P. Wms. (z) 1 ib. 488. 179. (a) Zyddon y. i. U Ves. 558, 566. Digitized by Microsoft® 270 MORTGAGES FOR PORTIONS AND MAINTENANCE. Chap 27. Maintenance, when runs in airear. Mortgage for maintenance,' out of corpus. in Milltown v. French (h), and by the V. C. of England, in Freeman v. Simpson (c), where interest was given on lega- cies, which were charged, after the death of the testator's wife, upon real estate in aid of the personalty, from the time the legacies became due out of the personal estate, as general pecuniary legacies. In one case {d), an estate was limited to the use of the Duke of Newcastle for life, with the remainder to trustees for 1000 years, with remainder to the Earl of Lincoln for life, and the trusts of the term were, to raise a portion for an only daughter of the earl, and maintenance was to be paid, after the death of the earl, out of the rents and profits, and the surplus of the rents and profits to be paid to the person, for the time being, entitled to the reversion or remainder expectant on the determination of the term. It was held, that as the maintenance was to be raised out of the annual profits, and not by sale or mortgage, which could not be during the life of the duke, for the duke was not a person entitled to the reversion or remainder expectant upon the determination of the term, the daughter was not entitled to interest until the death of the .duke. Where an infant has no other means of maintenance than the rents of real estate, which are insufficient, an order may be made, either in an action, or on petition, that an allowance for mainte- nance shall be charged upon, or ordered to be raised, out of the corpus of the estate, or paid out of a fund in Court representing the corpus (e). " Bents and profits" pass fee. (3.) Whether power to raise by rents and profits authorises a mortgage. It is important to ascertain under what circumstances the words rents and profits mil authorise a mortgage, or will be restricted to annual rents. By a liberal construction, it has been held, that as the words " rents a,iid' profits " in a devise would carry the fee (/), so the words, "profits of land," when not restricted to annual profits, and especially' when applied towards the raising of portions (6) 4 CI. & Fill. 276. (c) 6 Sim. 75. {d) Lady Clinton v. Lord Robert Sey- mour, i Ves. 440. («) Fentivian v. F. 13 Sim. 171 ; 16 L. J. Ch. 436 ; Nottley v. Palmer, 11 Jur. N. S. 968. And see Re Allen, 8 Ch. il7 n; Re Howorth, ib. 416. (/) Allan V. Backhouse, 2 Ves. & Bea. 74. Digitized by Microsoft® Sect. 3. . POWER TO RAISE BY RENTS AND PROFITS. 271 or debts, were to be considered as signifying any profits the lands when annual would yield, whether by sale, or mortgage, or otherwise (g). But, P^^**- according to a more modern doctrine, it seems the natural meaning of raising a portion by rents and profits, is by the yearly profits {h), and the cases which have extended it further are exceptions out of the general rule, in which the context has afforded a different con- struction (i). Thus, where a time certain is prefixed for the payment of portions, and it is evident that the annual profits will not raise the money within that time, the Court has directed a mortgage (k). So, also, in a case where the trust of a term was out of the rents and profits to raise 8000Z. for daughters' portions, to be paid them as soon as conveniently could be, two points were made : — first, whether the 8000Z. could be raised by sale or mortgage? and, secondly, whether it should carry interest, and from what time ? and it was considered, that as the -daughters were of age at the time of the father's death, it would be convenient to raise the por- tions forthwith ; and it was decreed, that the portions should be raised by sale or mortgage, and that the 8000Z. should carry inte- rest from the death of their father (Z). The principle applies where the sum is immediately raiseable — a gross sum that must be raised (m). But equity would not have raised the portions by mortgage, if Children of the children had been of tender years at the death of the father (n) . ^^ ? • and in such case the portions would have become due when the rents would have raised them, and would have carried no interest (o). As soon as the portions could have been raised by the rents, the land would have borne its burthen and have been discharged (p). If the trust be to raise portions out of rents and profits, and no time is appointed for payment, and the child dies under twenty-one, {g) lAngon v. Foley, 2 Ch. Ca. 205 ; cock v. B. 1 Vern. 256 ; Berry v. Ask- BcKkhoiiSK V. Middleton, 1 ib. 173 ; Qih- ham, 2 ib. 26 ; WarlurtonY. W. ib. 420; son V. Rogers, Amb. 93 ; 1 Fonb. on Eq. Okeden v. 0, 1 Atk. 552 ; Oreen v. 446 ; Pefidiman v. F. sup. Belchier, ib. 505 ; Shrewsbury v. S. 1 (A) Ivy V. Gilbert, 2 P. Wms. 13, Ves. jun. 234. And see 2 ib. 481, note ; Prec. Ch. 583 ; Philips v. P. 8 Beav. and Allan v. Backhouse, sup. ; Wilnon v. 193 ; Foster v. Smith, 2 Y. & C." C. C. HalUley, 1 Russ. & M. 690. 193 ; reversed, 1 Ph. 629 ; 15 L. J. Ch. {I) Traffm-d t. Ashtm, 1 P. Wms. 416. 183 ; Shaftesbury v. Marlborough, 2 My. And see Stanhope v. Thacker, Prec. Oh. & K. Ill ; Darbonv. liickards, 14 Sim. 435. 537. (m) Metcalfe v. Hutchinson, 1 Ch. D. (t) 2 P. "Wms. 19 ; Allan v. Backhouse, 598, M. R. • sup. ; Garmstone v. GawU, 1 Coll. 577 ; (n) Evelyn v. E. 2 P. Wms. 659. 9 Jur. 78. (o) Ivy v. Gilbert, sup. (k) Backhouse v. Middleton, .lup. ; Hey- (p) Ib. Digitized by Microsoft® 272 MORTGAGES FOE PORTIONS AND MAINTENANCE. Chap. 27. and unmarried before it is raised, the portion will, in such case, be raised out of the annual rents, for the Court will not, it seems, direct a mortgage {q). The several cases already cited, show that the words, " rents and profits," when added, or prefixed to more general words (as sale or mortgage) by way of alternative, will not restrict the meaning of the more general words (r). When re- If there be a clear intention shown that the trust shall be con- stricted to 1 ,-1 .,, . , T / \ annual rents, fined to annual rents, the Courts will not m any case order a sale [sj . There are also cases in the books, which show that the words " rents and profits," will be restricted to annual rents, when fol- lowed or attended by other words which imply that the money shall not be raised in any other way, or when the words "rents and profits " are placed in opposition to the more general words "sale or mortgage." Of the latter position, Corbett v. Maidwell (t) is an instance, where the maintenance was directed to be issuing out of the profits ; and the portion itself to be raised by sale, or mort- gage, or perception of rents and profits. Of the former position. Ivy V. Gilbert (u) is a strong instance, in which it was held, that where a trust of a term for raising portions for daughters directs a particular method for raising them, by leasing for one, two, or three lives, or for any term of years determinable thereon, or for twenty-one years absolutely, it implies a negative that they shall not be raised in any other way ; and that, even by leasing, it could not be raised but by making such leases, upon which the old rent was reserved ; and that, as there was no time appointed for the raising of this portion, the portion was due when the profits could raise it, and it carried no interest : but when the portion was, or might have been, raised by the profits, then it became due, and the land was discharged, as having borne its burthen. The effect was, that the profits received by the remainderman were directed to go towards the payment and sinking of the portion. This decree was afterwards affirmed in the House of Lords (x). (q) Earl of Rivers v. Earl ofDerly, 2 2 ; Linga/rd v. Earl of Derby, 1 Bro. C. Vem. 72 ; and see 2 P. Wms. 672. C. 318; auiseeSeneager. Lord Andover, (r) Greaves v. Mattison, Sir T. Jones, 3 Y. & J. 360. 201 ; Gerrard v. G. 2 Vem. 458 ; Samdhjs (t) Corbett v. Maidwell, 1 Salk. 159. V. S. 1 P. Wms. 707 ; Goodall v. Rivers, And see Wwrter v. Eutchinson, 1 S. & S. Moseley, 395 ,•• Hebblethwaite v. Cart- 276. But see Michell v. M. 4 Beav. wrigM, For. 30 ; Hall v. Carter, 2 Atk. 549. 365. (m) 2 P. Wms. 13 ; Prec. Ch. 883. (s) Small y. Wing, 5 Bro. P. C. 66, ed. [x) 6 Bro. P. C. 68. Digitized by Microsoft® Sect. 3. EAISING BY ' EENTS AND PROFITS.' 273 In Evelyn v. Evelyn (y), the like doctrine as in Icy v. Gilbert (z), was recognised. In Mills V. Bank {a), the words of the trusts were, " by rents, issues, and profits, or by making leases for one, two, or three lives, 01' for any number of years determinable on one, two, or three lives, reserving the ancient rent, or by granting copyholds on fines," to raise 10,000L, to be paid to daughters at eighteen or marriage, and to sons at twenty-one, or as soon after as the same could be raised out of the premises as aforesaid. A decree was made, directing the portions to be raised by sale of the trust term ; but on a rehearing (after Ivy v. Gilbert (6) had been decided) the Lord Chancellor said that he should not have made the decree, and that he approved the resolution in Butler v. Duncomb (c), that all trusts of terms directing the method of raising of money imply a negative, viz., that the money shall be raised by the method prescribed, and not otherwise. The case was, however, compro- mised. As to whether a direction, in a will, to pay debts out of rents and profits, authorises a sale or mortgage, see infra, p. 294. A direction to raise by rents, or other ways and means (except a sale), prohibits a mortgage (d). • As to .form, of mortgage for securing and raising portions, see (e). (4.) The vesting and payment of portions. If a time certain is appointed for the payment of a portion charged on land by deed or will, and the child dies before the time for payment arrives, the portion will sink for the benefit of the estate (/), unless a time for its vesting be expressly provided. To this rule, however, there are exceptions, when the payment of the portion is deferred from the circumstances, not of the person, but of the fund. The question whether younger children, in order to become Whether entitled, must outlive their parents, as well as attain the time for cMdfen must payment, depends on the particular circumstances of each case, and ""'•^''^ parent. (y) 2 P. "Wms. 659. (d) Benett v. Wyndham, 23 Beav. 521; (z) Sup. 3 Jur. K S. 1143. {a) 3 P. Wms. 1. (e) 2 Dav. Conv. 1008, ed. 3. (J) Sup. (/) Smith V. S. 2 Vem. 93. (c) 1 P. "Wms. US. r Digitized by Microsoft® 274 MOETaAGES FOR PORTIONS AND MAINTENANCE. Chap. 27. the cases are not very reconcileable. In Wliatford v. Moore (g), it was said that the only reasonable course is to adopt the rule, which had been generally recognised, of leaning in favour of that construction which includes all the children, if the instrument affords fair ground for doing so, but if not, to give effect to the plain meaning of the. words used (h). Whether sur- Where a trust term is limited in remainder after the estates for tiTltifof *"^ life to raise portions for yoilnger children, the portions of sons to tenant for life, fee paid to them at twenty-one, and the portions of daughters to be paid at twenty-one, or marriage, but in ease such periods shall happen before the decease of the tenant for life, then to be payable on such decease, the portions will be considered to vest absolutely at twenty-one or marriage, though there is a gift over in case of the death of any child before his or her portion is payable (i). But the gift over to the surviving children will take effect in the event hmited, as to the shares of children not attaining the pre- scribed period, though a certain sum is raiseable for each child, and though one of the conditions of the cesser of the term is the event of there being no children living at the death of the tenant for life. And the Court will not struggle against the natural meaning of the survivorship clause to restrict its application to survivorship after the death of the tenant for life (k). The clauses as to payment of the portions after the parent's death were framed to meet the decisions which charged the rever- sion with interest after the portionist attained the age of twenty- one, &c., though the term was still in reversion; since the post- ponement of the payment being referable to the circumstances of the estate, and not to the person of the portionist, was held, according to the well-known rule of the Court, not to impede the absolute vesting of the portion (I). But, of course, the settlement may, by clear words to that effect, make the right of a child to its portion depend upon its surviving both or either of its parents (m). (g) 7 Sim. 574 ; 3 My. & Or. 270. See t. Lord Clifden, 6 Ves. 499. And caaes V. Jeyes, 10 Ch. 561 ; Say v. cited, 1 Ed. 86. Saddiffe, 3 Ch. p. 658, M. R. {!c) Evans v. Scott, 1 H. L. 43. {7i) Mocatta v. Undo, 9 Sim. 56 ; [1) Vide ib. p. 57 ; 3 Ves. 53. Fryy. Lord Sherborne, 3 ib. 243 ; Spmcer (m) Per M. B. 3 Vea. & B. 85. And V. S. 8 ib. 87 ; Wynter v. Bold, 1 S. & see Wingrave v. Palgrave, 1 P. Wms. S. 507. 401 ; Hotchkin v. Humphrey, 2 Madd. i) Emperor v. Wolfe, 1 Ves. S. 208 ; 65. Cholmondelcy v. Mei/rick, 1 Ed. 77 ; Mope Digitized by Microsoft® Sect. 4. THE VESTING AXD PAYMEXT OP POETIOXS. 275 If no time certain is appointed for the payment of the portion, and the child dies before it is raised, it will nevertheless vest and be payable (m). But to this rule exceptions are to be found, in cases in which the children have died at a very early age. As soon as all the events have happened, and the portion has When portions , 11. 1 . ^'^' ^^ raised. become payable, it may be raised by sale or mortgage, unless the raising of it be contrary to the trusts of the settlement, as in some of the instances already mentioned, or unless the raising of it be restricted to annual profits, as before also mentioned. But the Court will not allow the portions to be raised before the time of payment on the petition of the eldest son, and will not raise more than the share of the younger child or children, whose shares are payable (o), unless the settlement authorise it (p). The rents only will, it seems, be applied, if the legatee dies under twenty-one and unmarried before the portion is raised (g). In case the portion is to be raised out of annual rents it interest. will carry no interest ; for it will not be due until the rents would have raised the portion ; and, as soon as they would have raised it the land will have borne its burthen and be dis- charged (r). And lastly — ^If the trust be expressly restricted to annual profits, the Court will in no case order a sale (s). (5.) Portions for children other than an eldest or only son. Where portions are provided for yoiinger children, other than an eldest or only son, with gift over, it is sometimes difficult to de- termine what constitutes a younger son, and what an eldest son, within the liniitation. The persons entitled must be ascertained at the time when the When money is directed to be raised and divided (i). But if there is a clear intention that the portions are to vest indefeasibly before the (n) Earl Rivers v. Earl of Derby, 2 Wms. 13. Vera. 72. (s) Small v. Wing, 5 Bro. P. C. 66. (o) Sheppard v. Wilson, i Ha. 392 ; (<) Ellison v. Thomas, 1 De G. Jo. & Wynter v. Bold, 1 S. & S. 507 ; Cotton y. Sm. 18 ; 8 Jur. N. S. 1139, L. C. ; re- C. cited 3 Y. & C. 149. See Marsh versing 2 Dr. & Sm. Ill ; 8 Jur. N. S. V. Keith, 29 Beav. 625. 635 ; 32 L. J. Ch. 32 ; Collingwood v. ( p) Gillibrand v. Goidd, 5 Sim. 149. Stanhope, 4 L. R. H. L. 58 ; reversing 4 {q) Earl Rivers v. Earl of Derby, Eq. 286, V. 0. Wood ; and overruling sup. Adams V. A, 25 Beav. 652. (r) Ivy V. aabcrt, Free. Ch. 588 ; 2 P. Digitized by Microsoft® t 2 Elder son treated as younger son. 276 MOETOAGES FOE POETIONS AND MAINTENANCE. Chap. 27. time of distribution, the eldest son is ascertained at the time of vesting (m). The great object of these provisions is, that no one child shall obtain a double portion at the expense of the others, and that no child shall be excluded {x) ; and this object will be carried into effect, unless the terms of the will are clearly at variance with it. As a general rule, the eldest son is only excluded because he takes the family estate. The elder son dying before he takes the estate, becomes, in the eye of the law, ' a younger son ' (y) ; and this is clearly so where the portions are given to all the children except an eldest son for the time being entitled {z) ; and if the eldest son, not taking the estate, dies before the period of distribution, his representatives are entitled to his portion (a). Eldership, not carrying the estate with it, is not such an elder- ship as will exclude from a portion (&). Similarly, where the eldest son does not succeed to the estate in consequence of forfeiture by the act of his father before he was born (c). But the fact of an eldest son becoming entitled to the estate in remainder, is suffi- cient to exclude him (d) ; and the elder son, by a re-settlement of the estate with his father on his coming of age, does not thereby lose his character of elder son entitled under the will («). The person entitled under the limitation might, previously to the event mentioned in the proviso, have so exercised his rights over the estate as to prevent it ever coming into the possession of the second son (/). ' Only son.' The only son of a marriage cannot succeed to an estate limited to A. and his heirs in tail male except an eldest son (g). •First-bom.' ' Eldest,' and ' first-born,' are synonymous terms {h). (u) Wimdham v. OrahoM, 1 Euss. 331. And see Mxp. Smyth, 12 Ir. Ch. 487. (a) CoUingwood y. Stanhope, i L. E. H. L. 58 ; reTersing i Eq. 286, V. 0. Wood. (y) CoUingwood v. Stanhope, sup. ; Davies T. Suguetdn, 1 H. & M. 730 ; overruling Gray v. Earl of Limerick, 2 De G. & S. 370 ; 17 L. J. Oh. 443. (z) Ellison V. Thomas, sup. 275 {t). (a) Ellison v. Thomas, sup. ; Daviea v. Suguenin, sup. ; Smnhv/rne v. S. 17 ■W. E. 47, V. C. Gififard. Digitized by Microsoft® (6) Duke V. Boidge, 2 Ves. S. 203 n. (c) Johnson v. Foulds, 6 Eq. 268, M. E. (d) Gryll's Tr. ib. 589, V. C. Giffard. (e) Collmgwood v. Stanhope, sup. And see Adams v. Seek, 25 Beav. 648. And Harrison y. Bound, 2 De G. M. & G. 190 ; 17 Jur. 563. (/) lb- (g) Tuite v. Bermingham, 7 L. E. H. L. 635 ; 7 Ir. Eq. 221. (h) Ib. Bathurst v. Errington-, 2 App. C. 69. Sect. 5. CHILDEEN OTHER THAN ELDEST SON. 277 A younger son, becoming an eldest son and succeeding to the Younger son estate, is excluded from a portion (i), though the portion may have lil^^^^ ^ already vested in him (k); and this rule vs-ill hold good, although there is a gift over on a younger son becoming an eldest son before he attain twenty-one (Z). A younger son becoming an elder son and so taking the estate does not thereby lose his portion, where there are no words in the will or settlement to exclude him; as where the exclusion was only of the eldest son by name (m) ; nor does a younger son lose his portion as Younger eon such by becoming the eldest son, if he does not thereby get the "tate!''''^ estate (n) ; as, where his father and elder brother had executed a disentailing deed (o) ; nor where he succeeds to the estate, not under the settlement, but by descent (jp). The word ' younger ' includes all the children except the one who succeeds to the estate (g) ; and the representatives of a younger child dying in infancy will not take, as the portion never was wanted (r). Where there is a limitation over in the event of a younger son becoming an eldest, or only son, it will not, without more, be con- strued to mean a child becoming actually entitled under tfie limitations, but simply an eldest son. Thus, a younger son be- coming an eldest son loses his portion, although he is wholly un- provided for, if the will expressly excludes him on his becoming an eldest son (s). The words, ' if younger son become the eldest son,' mean the eldest surviving son in the lifetime of the father (t). A gift over of this kind, as a general rule, takes effect at any time before the time of payment, though the portion be vested (u). But if the gift over be limited, in the event of a younger son becoming an elder son before he attains twenty-one, or other period, any other (i) Ohadwick v. SoUman, 2 Vern. (p) Sing v. Leslie, 2 H. & M. 68 ; 10 528 ; Sroadmead v. Wood, 1 Bro. 0. C. Jur. N. S. 794. 77 ; Dairies v. ffuguenin, sup. (q) Scarisirick v. Lord Skelmersdale, {K) Ih. Swinburne v. S. sup. See 4 Y. & C. 78. Leake v. L. 10 Ves. 477. (r) Dames v. ffuguenin, sup. {I) BayUys Settlement, 9 Eq. 491, M. (s) Livesay v. L. 13 Sim. 33; 6 'Jur. E. ; 6 Ch. 592. N. S. 752, V. C. E. ; 2 H. L. 419. See (m) Wood V. W. 4 Eq. 48, M. R. Matthews r. Paul, 3 Sw. 323. (n) Adams v. Beck, sup. ; Theed's {t) Harvey-Bathurst v. Stanley, 4 Ch. Settlement, 3 K. & J. 375. D. 251, C. A. ; 2 App. C. 699. (o) Macmibrey v. Jones, 2 ib. 684 ; (u) CJiadvrick v. Doleman, sup. ; Tennison v. Moore, 13 Ir. Eq. 424 ; Savage v. Carrol, 1 Ba. & Be. 265 ; Spencer v. S. 8 Sim. 87 ; overruling Pea- Teynham v. Webb, 2 Ves. S. 198 ; Mat- cocke V. Pares, 2 Keen, 689. thews v. Paul, sup. Digitized by Microsoft® 278 MORTGAGES FOE POETIONS AND MAINTENANCE. Chap. 27. Shitting of estates construed strictly. event will be excluded, and he will not lose his portion by subse- quently becoming an eldest son before the time of payment, and additional portions will follow the nature of the original portions, though the Umitation may not be clearly expressed {x). A settlement of an estate with shifting clauses ought not to contain a clause postponing the vesting of portions until the death of the person creating them (?/) ; nor should it contain a clause, avoiding the portions on the estate shifting {z). Where there is a limitation of two estates, the one of which is to shift in the event of the other being held by the same member of the family who first takes the secondary estate, that limitation is a condition which must be performed strictly ; and if it cannot be performed strictly, the shifting clause fails to take effect (a). Legacy duty on portiuns. (6.) Legacy and succession duty. In raising portions by mortgage, the trustees should take care that the legacy duty either be paid by the portionist, or deducted in ascertaining the amount secured by the mortgage, as the trustees are liable for the duty (6), as well as the devisees of the estate subject to the portions whether in fee or for life (c). But [the trustee or devisee paying the duty can recover it from the portionist {d^, unless the portions were devised clear of all deductions (e). The same observations will apply to succession duty, on portions raiseable under a settlement of real estate, under 16 & 17 Vict. c. 51 (/). Power to raise The 44th Sect, of the Succession Duty Act (16 & 17 Vict. c. 51), hy'mortgage''*^ enacts that, besides the successor, the following persons shall be personally accountable for the duty to the extent of the property received by them, namely, " every trustee, guardian, committee, tutor, or curator, or husband, in whom respectively any property, or the management of any property subject to such duty shall be vested, and every person in whom the same shall be vested by alienation or other derivative title at the time of the succession Succession duty. (k) Wivdhamv. Oraha'm.,\'&as&. ZZ\. (j/) Viscount Holmesdale v. West, 12 Eq. 280, V. C. Bacon. (z) lb. {a) Famkerly v. Ford, 4 Sim. 390 ; Taylor v. Earl of Harewood, 3 Ha. 372 ; Barrison v. Hound, 3 De G, M, & G, 190 ; 17 Jiu-. 763 ; Meyrich v. Lwws, 6 Oh. 237. (6) 45 Geo. 3, c. 28, e. 5. (c) Att. Gen. v. Jackson, 1 C. & J. 101. (d) Bales v. Freevum, 1 Br. & B. 391. (e) Stow V. Davenport, 5 B. & Ad. 359. (/) See 2 Dav. Conr. 1012, ed. 3. Digitized by Microsoft® Sect. 6. LEGACY AND SUCCESSION DtTTY. 279 succession becoming an interest in possession ; " and all those persons are Mortgage for authorised to compound, or pay in advance, or commute, the duty, ^"t??^ and retain the amount thereof out of the property subject thereto, "or to raise such amount. and the expenses incident thereto, at interest on the security of such property, with power to give effectual discharges for the same; " and such security is to have priority over any charge or incumbrance created by the successor. Digitized by Microsoft® 280 CHAPTER XXVIII. MOETGAGES BY EXECUTORS, BY TRUSTEES FOE SALE, AND FOE PAY- MENT OF DEBTS, AND UNDER POWEES OF CHAEGING. Sect. Page 1. Mortgages by executors ...... 280 2. Fraudmlent mortgages by executors . . . . 283 3. Mortgages by devisees charged with debts . . 285 4. Mortgages by trustees . . . . . . 286 6. What words authorise a mortgage or sale . . 287 6. Mortgage or sale hy executors of realty under a charge of debts under the old law . . . 288 7. Stat. 22 (f 23 Vict., c. 35 291 8. Insertion of a power of sale in a mortgage by trustees ........ 293 9. Direction to pay debts out of rents and profits . . 294 10. Annuities when not charged on corpus . . . 296 11. Cases of annuities charged on corpus . . . 297 12. Investments by trustees ...... 299 13. Joint mortgage to trustees . . ... 302 14. Trust deeds for creditors ..... 303 15. Generally 304 (1.) Mortgages by executors. General powers '^^E whole personal estate of the testator vests in the executor, of executors, ^j^q^ fj-oj^ ^^^q duties of his office and the nature of his trusts, must necessarily have an absolute power oyer it (a), whether specificallv bequeathed (6), or limited in trust(c), or neither. The executor's first duty is to provide for payment of debts ; and, if the general undis- posed of property or the fund expressly provided by the testator is not sufficient for such purpose, the property specifically bequeathed (a) See Nugent v. Giffm-d, 1 Atk. 463. Burling v. Stonard, ib. 150 ; Langley v. But see Wilson v. Moore, 1 My. & K. Barl of Oxford, Arab. 17 ; Atidrew v. 356 ; M'Leod v. Drummond, 17 Ves. 161. Wrigleij, 4 Bro. C. C. 125. (6) Ewer v. Corbet, 2 P. AVnis. 149 ; (c) M'Leod v. Drummond, sup. Digitized by Microsoft® Sect. 1. MORTGAGES BY EXECUTORS. 281 or given in trust must be resorted to. Nor can a testator, by any General testamentary disposition of bis personal estate, frustrate or delay p°""«'^- the claims of his creditors (d). We accordingly find the adjudged cases and text books, when speaking of the powers vested in the executors, using strong expressions : and we also find the judges showing great reluctance to fetter the executors in the exercise of their functions. Notwithstanding this great discretionary autho- rity, numerous cases are to be found in the books, arising from the circumstances attending the disposition by executors of their tes- tator's assets ; and on some of the points a considerable difference of opinion has existed. The power of the executors to dispose of a specific legacy seems ^^weT over a to have been formerly questioned. An early case (e) was considered specific legacy, as mihtating against this power ; but it has been since observed (/) that that was not, in fact, the case of a specific bequest, it being a charge on a particular part of the assets, and there were supposed to be strong circumstances of fraud in the conduct of the parties. Succeeding cases have established this power of disposition by the executors beyond question. Sir Edward Sugden, in his Trea- tise on Vendors and Purchasers, raised a doubt whether it is safe to take an assignment of a specific legacy from the executor without the concurrence of the specific legatee, lest the executor should have assented to the bequest, and he cited Thomlinson v. Smith, Finch, 378. It is submitted this was a case of gross fraud. If a purchaser or mortgagee bond Jide deals with an executor within a reasonable time after the testator's death, and obtains pos- session of the muniments of title, a specific legatee would never be permitted to set up the executor's assent against the sale or mort- gage, for, by sale and delivery, the title of the purchaser or mortgagee is complete. Vide Scott v. Tyler, Dick, 725, and 17 Ves. 166. As to set off of a debt due by the specific legatee to the estate against the specific legacy after appropriation (ff). As the executor may absolutely dispose of the testator's assets Mortgage of for the general purposes of the will, there seems no good reason ^^^^^ why, in the exercise of a sound discretion, and presuming the lan- guage of the will does not peremptorily require an absolute sale, the executor may not raise the money required by a partial sale or mortgage of the assets. Accordingly this proposition is broadly {d) Andrew v. Wrigley, mp. (ff) Ballard v. Marsden, 14 Ch. D. (e) Mumble v. Bill, 2 Vern. iii. 374, J. Fry. (/) 17 Ves. 160 ; 3 Atk. 241. Digitized by Microsoft® 282 MORTGAGES BY EXECUTORS AND TRUSTEES. Chap. 28. Mortgagee not bound to see to application of money. Executor laid down by Lord Hardwicke in Mead t. Lord Orrery (g), and yet more broadly and expressly so by Lord Thurlow in Scott v. Tyler Qi), and has been since recognised by Lord Eldon in M'Leod v. Brwrn- mond (i) . Lord Loughborough, indeed, is reported to have said, that a mortgage is not a natural way of raising money, and that it may lead to an inquiry as to the circumstances of the testator's estate {It) ; but this observation, it is conceived, must be con- sidered as applying to transactions attended with circumstances exciting suspicion of fraud. The right of executors to mortgage is undoubted. The mortgage may be either of legal or equitable assets (t), or of mere choses in action (h), and may be by actual assignment, or by deposit (h) ; and a dealing with one of many executors will be valid, for each is competent Qi). The deed of mortgage need not state that the money is wanted for the purposes of the will, for, in order to vitiate the security, it must be shown that the money was not for' the payment of debts (n). Nor is the mortgagee bound to see to its application (o), although Lord Kenyon expressed an opinion that a trust might be so framed as to call on a purchaser from an executor to see to the application of the money (p); but this obseiTation must also, it is conceived, be supposed to apply to a sale made under very peculiar circumstances, and not for the purpose of the payment of debts generally. A pledge of assets to a creditor is valid, though the estate is insolvent (q). If the executor is also specific legatee, a mortgage from him of the specific legacy for satisfaction of his private debt will be safe, unless it can be shown that the mortgagee knew that there were debts of, the estate unpaid (r). In a case, however, where an administrator mortgaged lease- holds with a power of sale to secure a sum advanced to the testator on a deposit of the title deeds, and a further sum advanced to the administrator for payment of debts, Sir J. Knight Bruce refused specific performance against a purchaser from the mortgagee, on (g) 3 Atk. 239 ; ScoU v. Tyler, Dick. 724 ; M'Leod v. Drummond, sup. {Kj Dick, 724. (i) 17 Ves. 154. (/c) And/rew v. Wrigley, 4 Bro. C. C. 138. (I) Nugent v. Giff^ v. St. Laxmenee, 3 Jo. & Lat. 661. (m) Stamper v. Pickering, 9 Sim. 176; (a) Gee v. Mahood, 11 Ch. D. C. Exp. Wilkinson, 3 De G. & Sm. 633 ; 891 ; reversing 9 ib. 161, V. C. HaU, Digitized by Microsoft® 298 MOETGAGES BY EXECtJTOES AND TRUSTEES. Chap. 28. When annuity charged on corpus. How the charge of annuity made effectual. Mortgage for annuity. But if the annuity is given generally, a residuary gift following of " aU the remaining interest of my monies " has been held not to prevent the annuity being charged on the corpus (6). So, an inten- tion expressed in the will of making up the failure of another fund, on which the annuity was charged, has been held to have the effect of changing the corpus, though the annuity was given only out of the dividends with a limitation over (c). So where annuities were charged by the will upon the capital as well as the interest of the monies to be produced by the sale and conversion of the leasehold and personal estate, and the trustees were directed, if occasion should require, to provide for payment of the annuities out of the rents, issues, and profits of the real estate in aid of the personalty, the annuities being in arrear, the V. C. E. held, that the arrears were to be raised by sale Dismortgage out of the real estate {d). Where the annuity was directed to be secured out of the lease- hold, it was held to be a charge on the corpus (e), and when the terms used amount to a charge on the fund, the corpus can be resorted to (/). Where the deficiency is to be made good out of corpus, the an- nuitant is not entitled to have the gross value paid out of capital on the principle of Wroughton v. Colquhoun (g) ; but is entitled to have the accruing payments of the annuity made good, if necessary, out of the corpus, as in (h). If the annuity is charged on the residue, and an insufficient fund is set apart, the deficiency is stiU a charge on the rest of the residue {i). Where annuities are expressly charged on corpus, a provision for abatement in case the rents are insufficient to pay the annuities in full does not exonerate the corpus (k). Whether a sum is charged on a life estate, or only an allowance given out of the rents actually received, depends on the context of the will(Z). A mortgage by an executor to secure arrears of an annuity belongs to the annuitant (m). affirmed in H. L., Carmichael y. Gee, 1 June, 1880. (6) Wroughton v. Colquhoun, 1 De G. & S. 36. (c) Boyd T. BucUe, 10 Sim. 595. (d) Fentiman v. F. 13 Sim. 171 ; 16 L, J. Ch. 436. («) Eowarth v. Bothwell, 30 Beav. 516; 8 Jur. N. S. 69. (/) Hickman v. Upsall, 2 Giff. 124 ; Pearson v, HdUwell, 18 Eq,. 411, V, C. Malins. (sr) 1 De G. & Sm. 357. (/i) WrigU v. Callendar, 2 De G. M. & G. 652 ; 16 Jur. 64. (i) BrigM v. Lareher, 3 De G. & Jo. 148 ; Davks v. Waiiier, 1 S. & S. 463. {h) Pearson v. Helliwell, 18 Eq. 411, V. C. Malins. (,1) Mackie v. M. 5 Ha. 70 ; 9 Juv. 753. (m) Dcpree v. Bedborongli, 10 W. R 875. Digitized by Microsoft® Sect. 12. INVESTMENTS BY TRtTSTEES. 299 (12.) Investments by trustees. Where trustees have the power to invest money on mortgage, they must not tie up the money so that it shall not be called in before a certain time, for, if the tenant for life die before the time, the trustee will have to find the money (n). It is decided that executors or trustees shall not, after a decree g^ (. f to account, lend money on mortgage without an application to the decree to account. Court (o) ; and it has been said, arguendo, that a trust to lay out money " on good security," will not authorise a loan on mort- gage (p). If the mortgage is contrary to the trust, or in disobedi- ence of an order to the contrary, the executors or trustees will be responsible for the loss ; but otherwise the mortgage will be a fund in their hands, which they will be ordered to pay into Court {q). A trustee, directed to invest in government or real security, is improper in- answerable for an insufficient mortgage security, if taken without ^°^ ™^° sufficient inquiry and survey (r). If directed to invest a legacy on real security, he may appropriate a mortgage of the testator, but he is equally bound to ascertain its sufficiency (s). The Court would not, before the recent acts, have countenanced an investment on mortgage except under special circumstances (t). Under a power to invest on real securities, the sum advanced Limit o£ may be to the amount of two-thirds of the value of the property, if of a permanent value (as freehold agricultural land), but not more than one half, if it consists of houses and buildings (u), and much leas if of buildings used in trade (r). If the property consist of renewable leaseholds subject to a heavy Investment by rent, although it may be treated as freehold, yet as the rent must be paid whatever the variation in the value of the property, the (w) Vickery v. Evam, 10 Jur. N. S. ed. 7. 30, M. R. ; 3 N. 11. 286. (u) Stickney v. Sewell, 1 My. & Or. 8 ; (o) Widdowson v. Duck, 2 Mer. 494. Norris v. Wright, 14 Beav. 307 ; Macleod (p) lb.; and see NorburyY. N. 4 Mad. v. Annesley, 16 ib. 600 ; Fhillipson v. 191 ; Lew. on Tr. 287, ed. 7. But qium-e, Oatty, 7 Ha. 516 ; Farrar v. Barraclough, and see Brown v. Litton, IP. Wms. 141 ; 2 Sm. & G. 231 ; Siretton v. Ashmall, 3 Wms. Ex.1815, ed. 8. S^f Baby v. Bide- Drew. 9; Baddy v. Williams, 3 J. & 7 De G. M. & G. 104 ; 1 Jur. Lat. 16 ; Drosier v. Brereton, 15 Beav. N. S. 363 ; and ii. Ft. ii. p. 473. 221 ; Jones v. Lewis, 3 De G. & Sm. 471; (q) Widdowsmi v. Duck, sup. 13 Jur. 877 ; reversed on appeal, Lewin (r) Ames v. Farkinson, 7 Beav. 379 ; Tr. 298, ed. 7 ; Vickery v. Bvans, sup. Ingle v. Partridge, 34 ih. 411 ; Budge v. (v) Stickney v. Sewell, sup. ; Stretlon Gummon, 7 Ch. 719. v. Ashmall, sup. ; Boyds v. B. 14 Beav. (s) Ih. 64. (jt) Norbury v. N. sup. Lew. Tr. 287, Digitized by Microsoft® 300 MORTGAGES BY EXECUTOES AND TRUSTEES. Chap. 28. advance ought not to be on a higher scale than upon freehold Ground rents, houses (x). In the case of ground rents, the Court does not look only at the rents, but also at the buildings, which are liable for the payment of them (y). Under a power to invest in ' real securities,' railway mortgages are not proper (z) ; although a trustee who allowed money, which had been invested by his testator in such securities to remain, is not liable for a breach of trust (a). Long terms for years are not real securities (aa). 22 & 23 Vict, c. 35. Debenture stock. Investments in Ireland. When a trustee, executor, or administrator shall not, by some instrument creating his trust, be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India Stock, it shall be lawful for such trustee, executor, or ad- ministrator to invest such trust fund on such securities or stock, and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper (6). It seems, that notwithstanding the statutory power, the Court will not advise trustees to lay out money upon mortgage of land in Scotland (c). Where trustees have powers to invest on mortgages or bonds of railways or other companies, they may invest on debenture stock (d). By 4 & 5 Wm. 4, c. 29, when trust money is liable to be invested in real securities in England or Wales, or Great Britain, power is given to invest in real securities in Ireland, unless such investment be expressly forbidden. But where any minor or unborn child, or person of unsound mind, is interested in the fund, the investment is to be made by the direction of the Chancery Division in England, to be obtained in any cause upon petition in a summary way(e). In a case of application upon petition under this last clause, the V. C. of England held that the concluding part must be read " to be obtained in any cause or upon petition," &c., and that the proposed security must be approved in chambers (/). (x) McLeod v.Annesley, 16 Beav. 600. (y) Tickery v. Evans, 3 N. R. 286 ; 10 Jw. N. S. 30. {z) Mant V. Leith, 15 Beav. 524 ; Mor- timore v. M. 4 De G. & Jo. 472 ; 28 L. J. Ch. 558. (a) SoMnson v. B. 1 De G. M. & G. 262. {aa) Boyd's SettledEst., 14 Ch. D. 626. (J) 22 & 23 Vict. c. 35, s. 32 ; made retrospective by 23 & 24 Vict. c. 38, s. 12. (c) Ee Miles, 27 Beav. 579. (,d) 34 Vict. c. 27. (c) Sect. 2. (/) &p. French, 7 Sim. 570. Digitized by Microsoft® Sect. 12. INVESTMENTS BY TRUSTEES. gOl In a later case, where the fund was in Court, and a similar applica- tion was made, the M. R. refused a reference, on the ground that such an investment would be neglecting the interest of the infant remainderman (gf). But this is opposed to another decision (A). The Court will not under this statute accede to an Irish mortgage (i). By 33 & 34 Vict. c. 34, s. 1, all corporations and trustees in the investments . _ _ ■^ . oy corporations United Kingdom, holding monies in trust for any public or chari- and charities. table purposes, may invest such monies on any real security (which includes legal and equitable mortgages and charges upon lands or hereditaments of any tenure, or upon any estate or interest therein, or any charge or incumbrance thereon), authorised by or consistent with the trusts on which such monies are held, without being deemed thereby to have acquired or become possessed of land within the meaning of the mortmain laws, or of any prohibition or restraint against the holding of land in any charter or act of Par- liament, and no contract for or conveyance of any interest in land made bond fide for the purpose only of such security, shall be deemed void by reason of non-compliance with 9 Geo. 2, c. 36. By 10 & 11 Vict. c. 46, where trust monies are liable to be lO&ilVict. "' . c. 46. invested in the purchase of lands in Ireland, an order may be obtained upon petition to the L. C. in Ireland, and after a refer- ence to one of the masters, that such monies may be laid out in the permanent improvement of other lands remaining unsold, or in settlement for the time being ; and the monies of persons under disabiUty may in like manner be laid out in the improvement of the estates of such persons. And after the money has been so laid out, a further petition may be made to the chancellor for a reference to the master, to enquire whether such outlay has been properly made ; and upon the report to that effect being confirmed, the trustees, or other parties petitioners, are to be released from all liability in respect of the application of the trust monies, and the lands are, from the time of the advance, to become charged with the sum advanced, and interest, in such manner as the L. C. shall direct, and the tenant for life, and other partial owners, are to keep down the interest and instalments directed to be paid. If a mortgagor pay off a mortgage, having notice that it is trust ^^^^^ *" (g) StuaH v. S. 3 Beav. 430. 570. (h) Exp. Lord Wm. Pawlelf, 1 Ph. (i) Stuart v. S. 3 Beav. 430. Digitized by Microsoft® 302 Mortgages by trustees. MORTGAGES BY EXECUTORS AND TRUSTEES. Chap. 28. money, he is bound in equity to see to its application, unless he is expressly or impliedly exempted from that obligation ; and even if he is so exempted, still a dif&culty occurs from the necessity of producing the settlement or will creating the trust to prove the fact, and of engrafting the proof on the title, to satisfy an assignee of the mortgage, as well as future purchasers. To obviate this latter inconvenience, the better practice is for the mortgagor to execute a mortgage to the executors, or trustees, without putting notice of the trust on the mortgage, and then for the executors or trustees to execute a separate declaration of their trust. To meet the former, it is advisable not to give the mortgagor notice of the fact of the money being in trust. (13.) Joint mortgages to trustees. There is a further rule in equity, viz., that if two or more persons advance their own monies on mortgage, whether in equa,! propor- tions or not, and the mortgage is limited to them so as to create a joint -tenancy at law, nevertheless, in equity, they shall be considered as tenants in common, and there shall be no survivorship between them. The consequence ip, that if a mortgage is made to two or more persons without notice of the trust on the face of the deed, so th?,t they .?.ppear to have made advances of their proper monies, and if one of them die before the mortgage-money is paid off, the concurrence of the executor or administrator of the deceased mortgagee becomes necessary in the discharge. The contrary was held in one case (k), but it cannot be supported (Q. This Usual proviso, inconvenience has given rise to a proviso, now inserted in such instruments, viz., that if one of the mortgagees shall die before the money is paid off, the receipt of the surviving mortgagee, or his executors, administrators, or assigns, shall be a good and sufficient discharge to the mortgagor, his heirs, executors, adminis- trators, and assigns, although, and notwithstanding, the executor or administrator of the deceased mortgagee shall not concur therein, any rule of the Court to the contrary in any wise notwithstanding. (k) Brazier v. Hudson, 9 Sim. 1. (l) Vickers v. CowM, 1 Beav. 529. Digitized by Microsoft® Sect. 14. TRUST DEEDS FOE CEEDITOES. 3O3 (14.) Trust deeds for creditors. Conveyances in trust to sell and pay creditors are in the nature of an instrument of agency, and revocable at the will of the debtor, unless the creditors are executing parties, or the deed has been acted upon by, or notice given to, the creditors (m). And in Garrard v. Lord Lauderdale {71), it was even held that notice to the creditors, though named as parties to the deed, would not be sufficient, unless they came in and signed the deed. But that doctrine has been overruled in later cases (0). And where the circumstances of the case amount to the creation of a trust, and not to a mere agency, as where the creditors and their debts are all named in the deed, and one of them, being also the solicitor of the others, is a party, the creditors are clearly entitled to the benefit of it (p). In Collins v. Reece (q) a question was raised, but not decided, whether a creditor, who had not signed or assented to the trust deed within the time fixed by the deed, was entitled to the benefit of it as against the assignees of the debtor who had become insolvent. A creditor deed is not void because of the non-execution of it by all the trustees, unless a provision to that effect is contained therein (r). A creditor may bring an action to carry out the deed on behalf Action by of himself and the other creditors who executed the deed, if very numerous (s) ; and such a creditor may, until a decree has been made, make terms for himself, and dismiss his bill (t). Scheduled creditors to a creditor's deed, who are not parties to it. Parties, are not, it seems, necessary parties to a suit instituted by a subse- quent incumbrancer against the trustees to have the benefit of his charge out of the surplus (w). But secus where the incumbrancer is (m) Walwyn v. Coutts, 3 Sim. 14 Acton V. Woodgate, 2 M. & E. 495 Savenshaw v. Eollier, 7 Sim. 3 ; Pits gerald v. Stewart, 2 Euss. & M. 457 Fage v. Broom, 4 Euss. 6 ; 4 C. & F, 436 ; Harland v. Binka, 14 Jur. 979 TmicJie V. Lord Lucan, 7 CI. & F. 772 Malcolm v. Scott, 3 Ha. 39 ; Kirwan v. Daniel, 5 ih. 493 ; Law v. Bagwell, 4 Dr, (0) Cosaer r. Eadford, 1 De G. Jo. & Sm. 585 ; Montefiore v. Brovm, 7 H. L. 259 ; Johns v. James, 8 Ch. D. 744, C. A. ( p) Wilding v. Richards, sup. (?) 1 CoU. 675. (r) Small v. Marwood, 9 B. & Or. 300. Wilding v. Richards, 1 CoU. 655 ; La (s) Weld v. Bonham, 2 S. & S. 91. (t) Eandford v. Storie, ib. 196 ; Wood V. Westall, Yo. 305 ; Burdett v. Rawson, 9 Jut. 341. & W. 398. W Po^ett V. Wright, 7 Beav. 444 ; (n) 3 Sim. 1. «* ""^ 1 1)3,11. Oh. Pr. 199. Digitized by Microsoft® 304 MORTGAGES BY EXECUTOES AND TRUSTEES. Chap. 28. prior to the trust deed, unless it be a general trust for creditors who are not specified (x). Under a power to mortgage contained in a trust deed of a chapel, the trustees may be mortgagees (j/) ; but, where one trustee offered to pay the debt, an injunction against the exercise of the power was granted (z). Incumbrance. Power to charge in tenant for life. (15.) Generally. Power to charge an estate is an incumbrance (a). An agreement to lend money on a "legal mortgage," means first mortgage (&). If tenant for life, with a power to consent to a sale by the trustees of the settlement, executes a conveyance of his life estate by way of mortgage, the power is not destroyed, and may be exercised either by the mortgagee reconveying to the mortgagor, or joining in the conveyance to the purchaser (c). (k) 1 Dan. Ch. Pr. 199, ed. 5. {y) Att. Gen. v. Sardy, 1 Sim. N. S. 339. (z) Kigali v. Foster, 18 Jur. 39, V. C. Wood. (a) Evam v. E. 22 L. J. Ch. 785. (6) Thompsm v. Clark, 11 W. R. 23, Q. B. (c) WalmesUy v. Butterworfh, Coote Mtg. App. ed. 3, p. 572. Digitized by Microsoft® 305 CHAPTER XXIX. EQUITABLE MOETGAGE OR CHAEGE. Sect. Page 1. Definition ........ 305 2. Informal agreement 305 3. Power of attorney 307 4. Lien from misi-epresentation ..... 307 5. Sale to enforce charge 307 (1.) Definition. A charge upon property does not imply a personal debt, but confers a mere right of realisation by judicial process, and in some cases, by a power of distress. This is sometimes created by contract, and sometimes by the mere mandate of the owner of the property charged (a). (2.) Informal agreement. Any agreement in writing, however informal, by which any property real or personal is to be a security for a sum of money, is a charge, and amounts to an equitable mortgage. Thus an agreement that a creditor shall hold land at a fair rent, to be retained in satisfaction of the debt, is in the nature of a mortgage, and will be supported (b). So an informal document, signed by a trustee, admitting a breach of trust, with these words, ' holding the deeds of my house and policies of assurance as a collateral security ' (c). An express written agreement to make a mortgage is sufficient on the principle of equity that what has been agreed to be performed shall be performed in specie ((Z). So a wi-itten instrument, pro- mising to pay a sum of money with interest ' out of the estate of infoimal the deceased W. H.,' and signed by all the persons interested in agreement. (a) Fish. Mtg. p. 8, ed. 3. (c) Baynard v. Woolley, 20 Beav. 583. (6) Morony v. O'Dea, 1 Ba, & Be. {d) Eankey v. Vernon, 2 Cox, 12, 14 ; 109. Bum V. B. 3 Ves. 582. Digitized by Microsoft® ^ 306 EQUITABLE MORTGAGE OR CHARGE. Chap. 29. Recitals. Oosts of conveyance. his estate, has been held to constitute (the personalty being exhausted) an equitable mortgage on the real estate (e). Similarly a letter to the executor by a debtor to an estate, saying that he might retain the debtor's title deeds till the latter got the whole of his aifairs settled with the executors (/). So a memorandum by a husband to charge all his interest in the future property of his wife (g). Advances on a railway contract were held to create an equitable lien on the profits of it Qi) ; and an equitable mortgage may be held as security for subsequent advances (i). Where a relation paid off a mortgage and took a receipt from the mortgagee, he undertaking to reconvey, it was held an equitable mortgage (A). So, a parol agreement for a mortgagee to give up his security to a new mortgagee paying off a part of the mortgage, on the under- standing that he was to have a second mortgage for the residue, was held to create a valid second mortgage (l). Also a recital of the obligor of a bond for 3000Z., that, on the execution of a will of real estate in his favour, he had promised to provide for the obligee, was held to have created a lien on the real estate for the 3000Z. (m). Similarly a recital in an assignment of rent to a creditor but in which no further interest in the lease was conveyed, that a security was intended, was held to be an equitable mortgage of the lease (w). See other instances of equitable charges in the Chap, on Tacking, p. 807 ; and, in the case of covenants to settle or charge laid, in the Chap, on Liens on real estate, inf. p. 413. The costs of perfecting the equitable mortgage by conveyance or surrender falls on the mortgagor (o). A covenant that if payment be not made the creditor may, by entry, foreclosure, sale, or mortgage, levy the amount from the lands of the debtor, is an equitable mortgage (p). [e) Suwrt V. Toulmin, 2 Pow. Mtg, 1049 a, ed. 6. (/) Fenwick v. Potts, 8 De G. M. & G. 506. {g) Carew v. Arundell, 8 Jur. N. S. 71, V. C. Stuart ; 5 L. T. N. S. 498. (h) Twynam v. Hudson, 8 Jur. TS. S. 476, V.C. Stuart, reversed on other points, 4 De G. F. & Jo. 462. (i) iJjy. Heathmte, 1 FonW. N. E. 42. (fc) FemcicJc v. Potts, svp. (I) Banks v. Whittall, 1 De G. & S. 536 ; Beckett v. Cordley, 1 Bro. C. C. 353. (m) Bxp. Atkim, 2 Y. & C. Exc. 536. (m) Bxp. Wills, 2 Cox, 233 ; 1 Ves. J. 162. (o) Pryce v. Bmij, 2 Drew. 41 ; affirmed 18 Jur. 967 ; 16 Eq. 153 n. (p) Eyre v. McDowell, 9 H. L. 620; Bodgson's Case, 1 G. & J. 13 ; Stuart's Case, cited 3 Ves. 576 ; 2 Soh. & Lef. 381; Digitized by Microsoft® Sect. 3. POWER OF ATTORKEY. 307 (8.) Power of attorney. A power of attorney, authorising a party to take possession of lands and hold them until paid a certain sum, amounts to a con- tract to charge, and is not revoked by the death of the grantor {q). So a power to confess judgment in ejectment (r). (4.) lAen from misrepresentation, A memorandum of charge by a solicitor on a mortgage debt, misrepresented as existing, was held an equitable mortgage upon an indemnity fund set apart when the mortgage was paid off (s). (5.) Sale to enforce charge. A sale will be directed to realise a charge or equitable mortgage (t). Exp. Jones, 4 L. J. N. S. Bky. 59 ; 4 D. & C. 750 ; Jebb v. Hodge, 5 L. R. C. P. 73. {q) Spooner v. Sandilands, 1 Y. & C. C. C. 390. AUott V. Stmtten, 3 Jo. & Lat.- 603 ; Walsh v. WMtcomb, 2 Esp. 565 ; Gaussen v. Morion, 10 B. & Or. 731. See inf. p. 737. (r) Dale v. Smiihioidc, 2 Vem. 151. (s) Uxp. Rogers, 8 De G. M. & G. 271 ; 2 Jur. N. S. 480. (t) Grissell v. Mmey, 38 L. J. Ch, 312, M. E. Digitized by Microsoft® 308 CHAPTER XXX. EQUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Sect. 1. Statute of Frauds 2. Deposit whether recognised at law . . ■ ■ S. Agreement not void under Statute of Frauds . 4. Deposit diverse intuitu .. . • ■ ■ • 5. Future ad/vances . . . • • • • 6. To whom deposit may be made, and other matters . 7. Purchase or mortgage with notice of deposit . 8. Solicitor and other cases . . . ■ • • 9. Deposit of part of the deeds . . . . ■ 10. Copyholds, and other matters 11. Renewed lease, dc. ...... 12. Bankruptcy ....-•■• 13. Equitable depositee not liable to covenants 14. Other matters 15. Deposit by tenant for life ..... 16. Generally 17. Whether remedy is foreclosure or sale 18. Other matters Page 308 309 309 312 312 313 314 314 316 317 318 318 318 319 319 320 320 322 Statute of Frauds does not prevent a deposit. (1.) Statute of Frauds. The Statute of Frauds enacts (a) that no "action shall be brought upon any contract or sale of lands, 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, be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." Notwithstanding this statute, it is now decided that if the title deeds of an estate are (without even verbal communication) deposited by a debtor in the hands of his creditor, or of some third person on his (a) 29 Car. 2, c. 3, s. i. Digitized by Microsoft® Sect. 1. STATUTE OF FRAUDS. behalf, such deposit is of itself evidence of an agreement executed for a mortgage of the estate (6), of which agreement the creditor may avail himself as of an agreement in writing for that purpose ; for he may bring his action for the completion of the security by a legal conveyance from his debtor, who will not be allowed to plead the Statute of Frauds ; or if the debtor become bankrupt, the creditor may present the usual petition for payment of his debt by sale of the estate, and to be allowed to prove for the defi- ciency, if any, under the bankruptcy : and see infra, p. 393. (2.) Deposit whether recognised at Law. An equitable mortgage by a deposit of title deeds would in some cases have been recognised in a Court of law even before the Jud. Act ; as in a case (c) where the title deeds of a moiety of the estate had been deposited as a security with the owner of the other moiety, who had received all the rents and was held not to be accountable to the assignees in bankruptcy of the owner of the other moiety. But secus where the question was purely a Title deeds legal one : thus, in a case of trover {d) for the recovery of the ^^^^ '^^^ title deeds by the owner of the estate, the claim of a depositee of the title deeds was not admitted. But although as a general rule the title deeds follow the legal Gift of title deeds estate {dd), a tenant in fee simple may give or grant away the deeds of his land, and the heir would have no remedy (e). Similarly an obligation or policy of insurance may be given away without an assignment, and trover would not lie for the document by the owner of the money secured (/). If, after such a gift, a legal mortgage or assignment were made of the land or debt, the mortgagee or assignee would have a difficulty in recovering the documents of title (gf). (3.) Agreement not void under the Statute of Frauds. A verbal agreement for a deposit, not accompanied by an actual ^J*^ -^^^t deposit. (6) Ei^. Wright, 19 Ves. 258. 393, and inf. p. 852. (c) Simpler v. Cooper, 2 B. & Ad. (e) Shep. T. 241, 8th ed. 223. And see (Jain-1/ V. 5Aa»ratt, 10 B. & (/) Barton v. Gainer, i Jur., N. S. Cr. 717. And2)oev.^toop,5B.&Ald.l42. 715; 3 H. & N. 387, 27 L. J., Exc. (rf) Harrington T. Price, 3 B. & Ad. 390 ; Rummens v. Hare, 1 Ex. D. 169 ; 170 ; Hooper v. Bamsbottom, 6 Taunt. Trimmer v. Dariby, 25 L. J. Ch. 424, 12. And see Goode v. Burton, 1 Exc. V.C. Kindersley. 189 ; 16 L. J., Exc. 309. (?) lb. ; but see Searle v. Law, 15 (dd) Smith v. Chichester, 2 Dr. & W. Sim. 95; and Fish. Mtg. 309, ed. 3, Digitized by Microsoft® 309 310 EQUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Chap. 30. deposit is void under the Statute of Frauds (h) ; as also is a verbal agreement that a simple contract debt shall be tacked to a legal mortgage (i). HoTvfarthe Previously to the establishment of the doctrine of equitable equitable de- " ^ posit » repeal mortgage by deposit of title deeds, it was held that the mere possession of the title deeds of an estate gave the holder no interest in the estate itself, except collaterally, as in the instance put by Lord Eldon (k) ; that is, if the owner of the lands could not part with the estate without the deeds, he should not have them without paying the debt due from him to the holder, so that the possession of the deeds gave no direct interest in the estate, but gave to the creditor an interest arising out of the power of embar- rassing the property in the sale {I). And it was considered that to give the creditor a charge on the land without an agreement in writing would be in direct contravention to the Statute of Frauds. Lord Eldon, indeed, is reported to have used expressions denoting his opinion, that the judicial decisions establishing this doctrine approach to a virtual repeal of the statute, for he is reported to have said, when pressed to a further extension of the doctrine, that the statute must not be repealed by him farther than it had been hitherto repealed by his predecessors, to whose authority he sub- , mitted (m) ; language which must be construed as denoting his lordship's strong disapprobation of that which he admitted must be considered as settled law (n). How far its existence in deterio- ration of the public revenue, by diminishing the amount of stamp duties, is of sufficient importance to attract the notice of the legis- lature, remains to be seen. Lord Eldon repeatedly expressed his surprise that the doctrine was ever admitted, and a determination has been shown not to extend it beyond its present limits (o). The first decision in favour of this doctrine was made by L. C. Thurlow in Evssell v. Russell (p), and was followed by him in other cases (q). These decisions a,re the foundation of the doctrine of equitable mortgage by deposit of title deeds, a species of security which, however much it has excited the disappro- (h) Exp. Rooper, 1 Mev. 7 ; Mep. (l) See Bead v. Egerton, 3 P. Wms. Oocmibe, i Mad. 249. See Meuxv. Smith, 279. 11 Sim. 410 ; TM v. Hodge, 5 L. R. C. (m) .Ecp. WhUhread, sup. P. 73 ; Miep. Perry, 3 M. D. & De G. (n) Exp. Keimngton, sup. 252 ; Exp. WalUfax, 2 ib. 544. (o) Eap. Hooper, sup. (i) Exp. Hooper, sup. (p) 1 Bro. C. C. 269. [h) Exp.Whitbread,WVss..i\\. And {g) Featherrstone v. FemoicTc ; Harford see E?^. Keiisingkm, 2 V. & B. 83. v. Carpenter ; 1 Bro. C. C. 270, liote. Digitized by Microsoft® Sect. 3. DEPOSIT NOT VOID UNDER STAT. OF FRAUDS. 32j bation of succeeding judges (r), has now become of daily practice. An order written, but not signed, by a debtor to his bankers, who had his title deeds on deposit, to hold them for the creditor to whom he gave the order constitutes an equitable mortgage (s). The deposit will create an equitable mortgage for the debt then For what debt. due, although there be not one word spoken at the time (t). But if the deposit is made for the purpose of gaining credit, it will not cover monies previously advanced and then due(((), unless an intention to cover them should appear from the circum- stances (x). In one case, it was said that a mere deposit of deeds without a Origin of memorandum, will, as against strangers, create an equitable mort- P"^^®''^"'"" gage only when the possession of the title deeds can be accounted for in no other way, or the holder is a stranger to the title and the lands (y) ; and where the deposit is made for securing a sum to the trustees of a voluntary settlement the intention must be clearly shewn (z). Where the origin of the possession of the title deeds by a bond creditor was not explained, it was held not to be a deposit (a). A presumption in favour of the deposit arises from the fact of the mere possession of the deeds, and the onus falls on the owner to rebut that presumption (b). W., holding title deeds to secure a debt due by N., receives a letter from N. directing him out of the sale of the property to pay himself and a debt due from N. to S., whose solicitor W. was. W., on payment of his debts, delivers the deeds to N. Semb., W. is liable to S. for any loss he may ' sustain (c) ; and semb., the deposit to W. would not extend to S. (d). (r) Eicp. llaigh, 11 Ves. 403; Non-is (y) Bozonv. Williams, 3Y. & J. 152. V. Wilkimon, 12ib. 192; Exp. Whitbrcad, (:) James v. Bydder, 4 Beav. 600. sup. ; Exp. Hooper, sap. (a) Exp.Jones,SM.kA. 152; Williams («) Daw V. Terrell, 33 Beav. 218. v. Medlicott, 6 Pii. 495 ; Chapman v. C. (I) Exp. Mountfort,li Ves. 606 ; Exp. 13 Beav. 308 ; 15 Jur. 265, but qtuere Langston, 17 ib. 230 y Exp. Kensington, this case. See Burgess v. Moxon, 2 Jur. sup. N. S. 1059, V. C. Stuart ; and Dixon v. (u) Mountfm-t v. Scott, T. & R. 274 ; MmkUsUm, 8 Ch. 155. 3 JIad. 34. (ft) Burgess v. Moxon, sup. (x) Exp. Farley, 1 M. D. &De G. 688 ; (c) Attwood v. , 5 Buss. 149. Exp. SmUh, 2 ib. 587. {d) Ib. Digitized by Microsoft® 312 EUUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Chap. 30. (4.) Deposit diverso intuitu. The deposit must be made with the view and intent of an immediate security, and not dAverso intuitu; and in a case (e) where the deeds were delivered only for the purpose of preparing a mortgage security, which was accordingly prepared, hut the exe- cution of it was prevented by death, it was held that the delivery of the deeds did not create a specific lien on the land. But where the deeds were delivered with a view to a mortgage to secure an antecedent debt, it was held to be an equitable mortgage in the meanwhile (/). The doctrine in Norris v. Wilkinson (g) appears, however, to be contrary to a case which was not reported at the time when it was decided, (h), and to be also in opposition to a decision in bankruptcy made by Lord Eldon himself (i). And an agreement to give a mortgage, accompanied by the delivery of the title deeds for the purpose of having the agreement -carried into effect, constitutes an equitable mortgage {k) ; and the same doctrine was held in the Exc. (l). Special pur- ^^® ^^^^ ^^ restricted to the special purpose in the letter ac- pose. companying the deposit (m), and the conditions therein must be complied with (n). In a case before Lord Eldon (o), he decided, that where lease- holds had been assigned by way of mortgage for securing 4001., the mortgagee could not tack a simple contract debt on a parol agreement, because the contract, under which he held, was a con- tract for conveyance only, and not for deposit. (5.) Future advances. The deposit may be a security as well for debts actually dnie, as also for future advances, if made out by evidence or oath uncon- tradicted. Of this, a doubt seems to have been entertained in Norris (e) Norris v. Wilkinson, 12 Ves. 192. (h) Hockley v. Bantock, 1 Kuss. HI. if) Bulfin V. Dunne, 11 Ir. Ch. 198, [l) Keysv. Williams, 3 Y. & C. 55. E. And see Zloyd v. Attwood, 3 De G. {m) Wylde v. Badford, 9 Jur. N. S. & J. 614; 8 Jur. N. S. 1323, L. J. ; 1169, V. C. Kindersley; Exp. MoUnson, Edge v. Worthmgton, 1 Cox, 211 ; Exp. 1 D. & C. 119 ; Burton v. Ctray, 8 Ch. Briice, 1 Rose, 374. 932. (g) 12 Ves. 192. (n) Burton v. Gray, sup. (h) Edgev. Worlhington, sup. (o) Exp. Hooper, 1 Mer. 7. (i) Exp. Bruce, 1 Rose, 374. Digitized by Microsoft® Sect. 5. FUTURE ADVANCES. 313 V. Wilkinson (p); but, in a subsequent case (5), it was held that the deposit covered the future advances (r); and generally a verbal agreement to make a subsequent advance on a deposit of deeds already made for another purpose is sufficient to constitute an equitable mortgage as to the subsequent advance (s). And where a deposit had been made to secure an usurious loan before 17 & 18 Vict. c. 90, a verbal agreement, subsequent to the statute, for a legal mortgage for the same loan, was held valid without a return and fresh deposit (t). In a case, where a mortgage by deposit was made to secure the debtor's account until such account should not exceed 1001., and the debtor died indebted to the mortgagee beyond that sum, it was held that the deposit was a security for the whole sum, and not merely for the excess above the lOOZ. (u). (6.) To whom deposit may be made. The deposit may be made either to the creditor himself or to some third person over whom the depositor has no control (x). But it will not be effectual if made to the wife of the depositor, nor a fortiori if permitted to be retained by the debtor, even if he should deliver a memorandum to that effect into the hands of the creditor (i/). And a written memorandum enclosing the bonds kept by the Memoi-andnm . 1 , ... „ . not commani- debtor, and not communicated to the creditor, is not sufficient, at cated. all events against the trustee in bankruptcy (z), although it may amount to a declaration of trust (a). But where the memorandum and documents were in the pos- session of the debtor, a secretary to a company the creditor, the deposit was established (6). The equitable deposit in the hands of one person will not be Deposit for debt of another person. {p) 12 Ves. 192. («) James v. Rice, 5 De G. M. & G. (q) Exp. Langston, 17 ib. 230. And 461 ; 18 Jur. 818 ; Kay, 231. see JExp. Mountfort, 14 ib. 606. (jt) Ashtrni v. Dalton, 2 Coll. 565 ; 10 (r) And see Exp. Hooper, sup. ; and Jur. 451. Shepherd v. Titley, 2 Atk. 348. {x) Lloyd v. AUwood, sup. (s) Exp. KensingUm, 2 Ves. & B. 79 ; {y) Exp. Coming, 9 Ves. 115. Exp. TFhitbread, 19 Ves. 209 ; Exp. («) Wilson v. Balfour, 2 Camp. 579. Lloyd, 1 GL & J. 389 ; Exp. Nettleship, And see Exp. Combe, 9 Ves. 117 ; Adams 2 M. D. & De G. 124 ; Ede v. Knowles, v. Claxton, 6 ih. 226; and see inf. p. 427. 2 Y. & C. C. C. 178 ; Ex^. Sanders, 3 L. (a) EwnJcheads Tr. 2 K. & J. 560. J. N. S. Bky. 92 ; Exp. Marsh, 2 Rose, (6) Ferris v. Mullins, 2 Sm, & G. 278 ; 239 ; En^. SmUh, 2 M. D. & De G. 318. 18 Jur, 718, Digitized by Microsoft® 314 EQUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Chai-. 30. extended to an advance made by another person, unless the person holding the deeds is a mere trustee and has made no advance (c). Parol evidence. Although there be an unstamped agreement between the parties, which is inadmissible as evidence, yet other parol evidence may be adduced to establish the equitable mortgage ( ■ If the title deeds of the house engaged in trade are deposited to secure a debt, and the premises are sold together with the good-will of the business, the equitable mortgagee will be entitled to the whole of the purchase-money (x). Deposit by- equitable mortgagee. (11.) Renewed lease, c&c. A renewed lease is subject to the same equitable mortgage that affected the former lease (y), exactly as in the case of a legal mortgage. Where an equitable mortgagee parts with the deeds in order to let in an annuity, and merely takes a personal undertaking by a third person to pay the annuity if default should be made by the grantor ; if such default is made, the mortgagee cannot sue in equity for an indemnity {z)i . An equitable mortgagee may himself create an equitable mortgage, by depositing the deeds with a third person, although he does not deliver over the memorandum (a). (12.) In bankruptcy. For the mode of realising a security by deposit of title deeds, see (6) ; and for the effect of the order and disposition clause, see (c). (13.) Equitable depositee not liable to covenants. It was formerly supposed to be the doctrine that a cestui que trust or depository of a lease was li?ible for the rent and covenants in a suit by the lessor (d). But it is now clear that a depositary of a lease is not answerable for the rent and covenants of the lease, and (s) Goodwin v. WagJio'>;n, 4 L. J. N. S. Ch.l72, M. E. (<) JExp. Broadhent, 1 M. & A. 635 ; 4 D. & C. 3. («) Sxp. Bisdee, 1 M. D. & De G. 333; Exp. Farley, ib. 683. (x) CJiismm v. Dewes, 5 Euss. 29 ; Pile V. P. 3 Cli. D. 42, C. A. {y) And see sup. p. 12?. (n) Brough v. Oddy, tamL 215. (a) &p. Smith, 11 L.J. ]Bk. 16 ; 2M. D. & De G. 587. (6) Inf. p. 393. (c) Inf. p. 453. (d) Clavering v. Westley, 3 P. Wms, 402 ; Lucas v. Camerford, 3 Bro. C. C. Digitized by Microsoft® Sect. 13. EQUITABLE DEPOSITEE NOT LIABLE TO COVEXA.NTS. 3I9 the landlord cannot compel him to take, or the mortgagor to execute, an assignment, even if the depositary has been in possession and paid rent (e). In such a case, though not liable for the rent and covenants, he would apparently be liable in respect of his tenancy (/). (14.) Other mutters. When an agreement for a lease is deposited by way of security, and a lease is afterwards granted to the depositor upon different terms, it seems that the deposit will not be affected so far as regards the particulars to Which the deposit extends (g). A deposit by husband and wife of the title deeds of the wife was Deposit not an held not to operate as an appointment by the wife under a settle- *pp°'° '"°" ' ment (h). Where a lease contained a covenant on the part of the lessee not Mortgage br to let, or otherwise part with " the said messuage or this present breach oT** indenture of lease " it was held that an equitable mortgage by covenant against aliena- deposit of the lease was not a breach of the covenant (i) ; and upon tion. a petition in bankruptcy by the equitable mortgagee by deposit (un- accompanied by any written memorandum) of a lease granted to the bankrupt, his executors, administrators, and permissive assigns, the usual order for sale was made (k). (15.) Deposit by tenant for life. A legal tenant for life of freeholds is entitled to the custody of the title deeds, and the Court will not interfere as between him and the remainderman, except where there is danger to the safety of the deeds if left in the hands of the tenant for Ufe, or where the Court requires the deeds for the purpose of carrying out trusts relating to the property (Z). In consequence of this custody, the tenant for life 166 ; 1 Ves. J. 235 ; Jenkins v. Portman, V. C. Malins ; Newry R. Co. v. Moss, 14 1 Keen, 435 ; Flight v. BenOey, 7 Sim. Beav. 64 ; 15 Jur. 437. 149. And see Close v. Wilberforce, 1 (/) 2 Day. Conv. 671, ed. 3. Beav. 112 ; IVilson v. Leonard, 3 ib. (g) Exp. Seid, 17 L. J. Bkty. 19. 373 ; Sanders v. Benson, 4 ib. 350. (h) Leuthiaaite v. Clarkson, 2 Y. & C. (c) Moorcs V. Choat, 8 Sim. 508 ; Moore Ex. 372. V. Oreg, 2 De G. & Sm. 304 ; 12 Jur. (i) Doe v. Mogg, 4 D. & E. 226 ; Doe 952 ; 2 Ph. 717 ; Walters v. The Northern v. Laming, E. Y. & M. 36. Coal Mining Co. 5 De G. M. & G. 629 ; (k) Exp. Drake, 1 M. D. & D. 539. Cox V. Bishop, 8 ib. 815 ; 3 Jur. N. S. (I) Leathes v. L. 5 Ch. D. 221, M. E. 499. See JFriglU v. Pitt, 12 Eq. 408, And Taylor v. Sparroic, 4 Giff. 706. In Digitized by Microsoft® 320 EUUITABLE MOETGAGE BY DEPOSIT OF TITLE DEEDS. Chap. 30. is enabled to mortgage the land or deposit the title deeds as apparent owner, and the bond fide mortgagee has such defence as a plea of purchase for value without notice is capable of affording (m). (16.) Generally. land Efigistiy -^ equitable mortgage of land, the title to which is registered Act, 1862. under the Land Kegistry Act, 1862, cannot be created by a deposit of title deeds (w) ; but a deposit of the land certificate has the same effect for the purpose of creating a lien upon the estate and interest of the depositor, as a deposit of the title deeds would have had before the passing of the act (o). Land Transfer Act, 1875. Under the Land Transfer Act, 1875, subject to any registered estates, charges, or rights, the deposit of the land certificate in the case of freehold land, and of the office copy of the registered lease in the case of leasehold land, shall, for the purpose of creating a lien on the land to which such certificate or lease relates, be deemed equivalent to a deposit of the title deeds of the land {p). Conflict of When the lex loci rei sitce does not forbid, and the parties do not *'''■ contract with reference to any other particular law, and the general law of the place is English, an equitable lien will be created upon land by a deposit of title deeds (q). Proof at hearing. The proof of the relation of the debt to the deposit, must be supported by proper evidence at the hearing (r) ; for if the evidence is not sufficient, there will be no inquiry (s). (17.) Whether remedy is foreclosure or sale. "Whether independently of 15 & 16 Vict. c. 86, s. 48, the proper remedy in case of an equitable mortgage by deposit of title deeds is foreclosure (by analogy to a legal mortgage) or sale (by analogy to a mere charge), is a question which has been much discussed (t). which Warren v. HudaU, 1 Jo. & H. 1, and Pymxnt v. P. 3 Atk. 571, are com- mented upon. (m) Walwyn v. Lee, 9 Vei3. 24. (n) 25 & 26 Vict. c. 53, s. 63. (o) a. s. 73. Ip) 38 & 39 Vict. c. 87, s. 81. (}) Varden v. Luckpathy, 9 Mo. I. A. 303. (r) Chapman v. C. 13 Beav. 308 ; 15 Jur. 265. (s) Solden v. Heame, 1 Beav. 456 ; Kehell v. Philpot, 7 L. J. N". S. Ck. 237. (0 2 Dav. Conv. 615, ed. 3 ; 1 Fish. Mtg. 508, ed. 3. Digitized by Microsoft® Sect. 17. WHETHER REMEDY FORECLOSURE OR SALE. 321 Many authorities were in favour of foreclosure on the ground that the creditor has a right to call for the legal estate (m). Many authorities, however, were in favour of a sale, on the ground that where there was no equity of redemption there could be no foreclosure, and that there was a mere charge (x). In practice, every action by a mortgagee by deposit is framed in the alternative for a foreclosure, or sale. And it is now settled that the proper remedy is foreclosure (z/) ; and that whether there is a written memorandum or not (z). Where there is an agreement for a mortgage, the remedy is foreclosure {a). Where there is a mere charge or lien the remedy is sale, and not foreclosure (6). The remedy of a mortgagee of an equity of redemption is foreclosure (c). A mortgagee of a re- versionary interest is entitled to a foreclosure, and not a sale (d). When there is a deposit of title deeds, the Court treats that as Deposit of title deeds, an agreement to execute a legal mortgage, and therefore as carrying with it all the remedies incident to such a mortgage (e). The relief to which an equitable mortgagee by deposit (accompanied by an agreement to execute a mortgage) is entitled, is either sale, or fore- closure (/). The equitable depositor is entitled clearly to a sale, where the memorandum accompanying the deposit provides that a (m) Malone v. Geraghty, 3 Dr. & W. 1 C. P. Coop. 9 ; TwMey v. Thompson, 239, 241, 246 ; affirmed 1 H. L. 81 ; 1 Jo. & H. 126 ; Lloyd v. Whitley, 17 Sobson y. Mellond, 2 Mo. & Rob. 342 ; Jur. 754, V. C. Wood ; Kennard v. Hiem v. Mill, 13 Ves. 114 ; Monkhouse Futvoye, 2 GifF. 89 ; Matthews v. Good- V. Corporation, of Bedford, 17 ii. 380 ; day, 8 Jur. N. S. 90 ; 10 W. R. 148 ; 31 Cox V. Toole, 20 Beav. 145 ; Meadon v. L. J. Ch. 282 ; 2 Spence Eq. Jur. 792 n; Sealey, 6 Ha. 620 ; Underwood v. Joyce, Sporle v. Whayman, 20 Beav. 607. 7 Jur. N. S. 566 ; Samhle v. Wilson, 5 (y) Pryce v. Sury, 2 Drew. 41 ; affirmed N. R. 395 ; Peto v. Hammond, 30 Beav. 18 Jur. 967 ; 16 Eq. 153 n, L. C. & L. 495, 511 ; 8 Jui'. N. S. 550 ; Uxp. Wise, J. ; James v. J. ib. 153, L. J. James. Mont. & McA. 65 ; Parker v. Houseficld, {z) Backhouse v. Charlton, 8 Ch. D. 2 My. & K. 419 ; Bedmayne v. Forsier, 444, T. C. Malins. 2 Eq. 467 ; 35 Beav. 529 ; Brocklehurst (a) Frail v. Ellis, 16 Beav. 350, 3, 4 ; V. Jessop, 7 Sim. 438 ; Thorpe v. Gartside, Moore v. Perry, 1 Jur. N. S. 126. 2 Y. & C. Exc. 730 ; Fxp. Coombe, 4 Mad. (6) Tmrumt v. Trenchard, 4 Ch. 537, 249 ; Jones v. Baileij, 17 Beav. 582 ; 542. London Monetary Advance Co. v. Brown, (c) Bichards v. Cooper, 5 Beav. 304. 13 W. R. 490, V. C. Kindersley ; Teat- {d) Slade v. Bigg, 3 Ha. 35 ; Wayne man v. Beed, 36 L. J. Ch. 136, V. C. v. Hanham, 9 ib. 62 ; 15 Jur. 506. Malins ; Tylee v. Webb, 6 Beav. 552-7. (e) Carter v. Wake, 8 Ch. D. 605, (k) Price v. Carver, 3 My. & Cr. 161 ; 606, M. R. Mellor V. Woods, 1 Keen, 16 ; Metcalfe (/) York Union Banking Co. v. Artley, V. ArchMshop of York, 1 ib. 547, 557 ; 11 *. 205, M. R. ; Matthews v. Goodday, Spring v. Allen, cited 2 My. & K. 422 ; 8 Jur. N. S. 90, V. C. Kindersley ; 10 Tipping v. Power, 1 Ha. 410 ; Pain v. W. R. 148 ; SetDec. p. 1043, ed. 4. Smith, 2 My. & K. 417 ; Lewis v. John, Digitized by Microsoft® ^ 322 EQUITABLE MORTGAGE BY DEPOSIT OF TITLE DEEDS. Chap. 30. formal mortgage shall be executed with a power of sale (g), or ■where the action is brought against the representatives of the deceased mortgagor (fe), in which case the mortgagee, as to any balance remaining due after the sale, will be entitled to stand in the place of a general creditor (i), and to have his costs of suit against the representatives (k). So a sale would seem to be the proper decree when the defendants are infants (Z). The dismissal of a bill for redemption, filed by a mortgagor under an equitable mortgage by deposit, does not amount to fore- closure (m). The equitable depositor will, as in the common case of mortgage security, have six months given to him to redeem (n), although from the nature of the transaction no interest is payable on the principal sum (o). Crown. Joint pos- session. Tenant in common. Surety. (18.) Other matters. Where a mortgagor had been convicted of felony, the rights of an equitable mortgagee against the CroAvn were to have a sale ; but the Court had no jurisdiction to direct the Crown to convey {p) ; but see now the statute abolishing forfeiture (pp) . Where there is joint possession of mortgagor and mortgagee the deposit is valid, as in the case of a secretary of an insurance company depositing his policy with the company (q). A tenant in common joining in a deposit without intention of bindihg his moiety, in no sense makes a deposit (r). A memorandum stating the object of the deposit does not require a stamp (s). Where a deposit is made as an indemnity to a surety, he is not entitled to a legal mortgage, only to a memorandum stating the purpose of the deposit (t). {g) Lister v. Turner, 5 Ha. 281. {h) JBrocMehurst v. Jessqp, .7 Sim. 438 ; Oonnell v. Sardie, 3 Y. & C. 582. (i) BrockUJmrst v. Jessop, sup. ijc) Cormell v. Sardie, sup. {I) See Scholefield v. Hmfield, 7 Sim. 669 ; Price v. Carver, 3 My. & C. 161. (in) Marshall v. Shrewshvo'y, 10 Ch. 250. (n) Parker v. Housefield, 2 My. & K. 419 ; Thm-pe v. GaHsidci 2 Y. & 0. Exo. 730 ; Carton v. Farlar, 8 Beav. 525. (o) Mellor v. Woods, 1 Keen, IB. (p) Hancock v. Att. Gen. 10 Jui-. TS. S. 557, V. C. Kindersley. (HP) 33 & 34 Vict. o. 23, mp. p. 44. \g) Ferris v. Mullins, 2 Sm. & G. 378; 18 Jur. 719. (r) Burgess v. Moxon, 2 ib. 1059. (s) Meek v. Bayliss, 31 L. J. Ck 448, V. 0. Stuart. (<) Sporle V. Whaynian, 20 Beav. 606 ; 24 L. J.'Cli. 789. But see Prycey. Bury, 2 Drew. 42 ; affirmed 18 Jur. 967. Digitized by Microsoft® Sect. 18. OTHER MATTERS. ; 333 A receiver will be granted under an equitable deposit (m). Receiver. A subsequent verbal agreement is binding without any return and deposit (x), though the first deposit was usurious (y). In the case of loss of the deeds, verbal evidence is sufiScient {z). Loss of deeds. An executor may deposit without his co-executor joining (a). Co-exeoutor. If there is an assignment of the property, there is a merger of the Merger, deposit (6). Where a trustee deposits the trust deeds, upon which the trust is Deposit by apparent, with his bankers, the trust is prior to the lien (c) ; but *™^*^*^- the cestuis que trust are preferred, even if there is no notice (d). Where the client executed a deed on the assurance of his solicitor Fraud of that his deposit would be preferred, he was nevertheless postponed to a conveyance to trustees, one of whom was the solicitor, and the other an innocent party (e). If the deeds of one client are by the act of a solicitor deposited with another client fraudulently, the onus falls on the mortgagee to prove that the solicitor was the agent of the mortgagor (/) ; and when a solicitor permits his client to deposit deeds, he cannot set up a first mortgage of which he was assignee {g). Where the legal mortgage deed was retained by the first mort- gagee after payment, and a subsequent mortgage made to a third party, and subsequent advances by the first mortgagee, the third party was held entitled to a re-conveyance from the first mortgagee, but the latter was held entitled to retain the deed {li). Interest is allowed on equitable deposits of deeds, though no Interest, contract for it (?). (u) Bodger v. B. 11 W. E. 160, V. C. Jul-. N. S. 388. And see Vorley v. Kindersley. Cooke, 1 Giff. 230 ; 4 Jur. N. S. 3, V. C. (x) JaTnes v. Eea, 2 V. & B. 79 ; 5 De Stuart. G. M. & G. 461 ; 18 Jiu-. 818, L. J. re- (/) Wall v. CocTcenll, 8 "W. R. 441 ; versing Kay, 231. 10 H. L. 229; 9 Jur. N. S. 447; re- iy\ /J. versing 3 De G. & J. 737, and affirming (s) Baskett v. Skeel, 11 "W. R. 1019, 6 Jur. N. S. 768, R. See Eiep. Hine, 3 V. 0. Wood. De G. & Jo. 464 ; Ogilvie v. Jeaffreson, 2 (a) Slwffield Union Bk. Co. 13 L. T. Giff. 353 ; 6 Jur. N. S. 910, T. C. Stuart. N. S. 477, Winslow, Com. (?) Bowie v. Saunders, 2 H. & M. 242; (J) Faughan v. Vanderstegen, 2 Drew. 10 Jur. N. S. 901, V. C. Wood. 239. (h) Young v. Whitehurst . Davis, 1 M. & A. 89 ; M>^. Bacon, 2 D. & C. 181. (c) Sup. Daiiis, sup. ; Downes v. Graac- brook, 3 Mer. 200. (d) Hxp. Williams, 1 D. & 0. 489 ; 1 Mont. 614 ; Hxp. Hammond, Buck, 464 ; Exp. SoUnson, Mont. & Mac. 261. (c) Exp. Say, 1 Mont. 364; Exp. Willia/ms, sup. ; Exp. Berkeley, 2 M. & A. 54 ; Anon, 3 M. D. & D. 339. (/) Exp. Brown, 1 D. & Ch. 34. ((/) Exp. Young, De G. 146 ; Exji. Holyrmin, 8 Jur. 156. (K) Me Parker, Mont. & Bli. 394. (i) Exp. Haines, 4 Dea. 20 ; M. & Ch. 32. (Jc) Mont. & Ayr. Bk. by Miller & Koe, 254. {I) Exp. Baldock, 2 D. & C. 60. (m) Exp. Ashley, 1 M. & A. 88 ; 3D. & C. 510 ; Exp. Geller, 2 Mad. 262 ; Exp. Pedder, 1 M. & A. 327. in) Exp. Yorke, 3 M. D. & D. 329 ; Exp. Pedder, sup. Digitized by Microsoft® Sect. 5. SALE IN BANKRUPTCY COURT. 393 A mortgagee who obtains leave to bid will, if he becomes the Deposit ana purchaser, be subject to the same rule as any other purchaser as to ''°^*^- payment of a deposit and costs (o). The Court cannot compel a second mortgagee who does not claim under the bankruptcy but rests on his security to concur in a sale obtained by a prior mortgagee {p). If the Court decide in the first instance on the validity of the claim of the mortgagee, the decision is conclusive in bankruptcy {q). If the trustee himself become the purchaser, being also a mort- gagee, the property will be ordered to be resold, subject to his claim as mortgagee (r). In questions respecting the ' existence of equitable mortgages, as by deposit of deeds and the like, the Court will not ia future refer the question, but will themselves decide the point (s). By 8 & 9 Vict. c. 15, auction duty on sales is aboHshed. Auction duty. Where trustees in bankruptcy are selling the mortgaged premises, the Court will not order the mortgagee to deliver up the mortgage deed till payment {t). When a mortgagee purchases under the Court, and his mortgage principal and interest up to March exceed the purchase money, he is let into possession on Christmas previous (m). In a case of composition, the Court of Bankruptcy has no juris- Composition, diction to make an order for sale at the instance of an equitable mortgagee of the estate of the debtor {x), A release of the equity of redemption by the trustee is valid {xx). (6.) Deposit of title deeds. The creditor by deposit of title deeds can have a sale under Proof of Art "VfliTl CP R r. 78 of 1870 ; but if he insist by his petition and affidavit, that the deposit was made as a security for future advances, as well as for the debt then due, and the debtor, by affidavit, deny the fact, the Court will direct an inquiry in respect of what debt the deposit (o) Exp. Tatham, 1 M. & A. 335 ; (s) Sxp. SmUh, 1 D. & C. 441. E3!p. Stephens, 2 ib. 31 ; Eiq>. Wilson, (t) Exp. IHtton, 1 Oh. D. 557, C. A. Mont. & Ch. 110 ; Bowles v. Perring, And see Exp. Pannell, 6 i6. 335, C. A. 5 J. B. Moore, 290 ; 2 Bro. & B. 457. (m) Bates v. Bonnor, 7 Sim. 427. (p) Eim. Jackson, 5 Ves. 357. (x) Exp. Manchester ») 15 Ves. [352. See Exp. JAiey, 2 (i) But see the judgment in Drydm r. M. & A. 609. Frost, sttp. ("■) 3 Sim. 502. {k) V. & P. 676, ed. 14. {p) i Erss. 402, [1) 1 Bro. C. C. 423. Digitized by Microsoft® 408 LIENS ON LANDED ESTATE. Chap. 38. Clariti T. But Clarke v. Royle was followed in a case {q}, where the annuity ■ was secured by a deed of covenant of even date with the conveyance, and the latter recited the grant of the annuity, and was expressed to be made in consideration of it. It was held that the annuitant had no lien. But the V. C. said that, if what he is reported to have said in Clarke v. Royle, with reference to the overruling of Tarddff v. Scrughan (r), was correct, he had spoken too strongly, and that he did not wish it to be understood to be his opinion that Lord Eldon had overruled that case point blank. The same prin- ciple was also recognised in Parrott v. Sweetland (s), in which it was clear, that the parties were bargaining for a security, and not for a stipulated sum. Tardiff v. Scrughan (r) is still law (<). In a case where an equitable life interest in property was sold in consideration of an annuity, and the assignee covenanted to pay the annuity, and to repair the premises, and to observe the covenants in the lease, and to indemnify the assignor in respect thereof, it was held that the plaintiff had a lien upon the premises for the annuity. But Sir J. Wigram rested his judgment on the ground that otherwise it would be difficult to understand the insertion of the covenants to repair and insure, the assignor not being liable on the covenants of the lease (m). The lien was held to be gone by a grant of annuity for three lives, to be secured by bond {x). Loan to pur- Where the purchaser was a trustee, a loan by the vendor to the chaser trustee, trustee of part of the purchase-money on deposit of the title deeds, was held void, and the lien gone {y). The question in all the cases is whether the security given is a substitution for the purchase money, and it becomes a question of . intention and depends upon the circumstances of each case. (4,) Whether lien affects third persons. A question was also raised by Lord St. Leonards, whether the equity extends to affect third persons, so as to give the vendor a (g) Buckland v. Pockndl, 13 Sim. 406. 467 ; Matthew v. Bowler, 6 Ha. 110 ; 16 {r) 1 Bro. C. C. 423. L. J. Ch. 239 ; Dart & Barb. 736, ed. 5. (s) 3 My. & K. 655 ; Albert Life Ass. (u) Mattliew v. Bowler, mp. Co., 11 Eq. 164, V. C. James. See (x) Dixon v. Oayfere, 17 Beav. 421 ; 1 Colliiis V. C. 31 Beav. 346 n. Jur. N. S. 1080, M. R. (J,) Richardson v. McCausland, Beat. {y) iluir v. Jolly, ^6 Eenv. 143. Digitized by Microsoft® Sect. 4. WHETHER LIEN AFFECTS THIED PERSONS. 409 preference to a subsequent equitable mortgagee with deposit of title whether lien deeds without notice (z). He considered the case of Stanhope v. pere^j*'"'''^ Earl Verney (a) to be analogous, in which Lord Northingfcon held that a declaration of trust of a term in favour of a person was tantamount to an actual assignment, unless a subsequent incum- brancer, bond fide and without notice, procured an assignment ; and that the custody of the deeds respecting the term, with a declaration of the trust of it in favour of a second incumbrancer, was equivalent to an actual assignment of it, and therefore gave him an advantage over the first incumbrancer, which equity would not take from him. Upon the authority of this case, he seemed to think that an equitable mortgage by deposit of title deeds, to a person hond fide and without notice, will give him a preferable equity, and will overreach the vendor's equitable lien on the estate for any part of the money. Without entering into the question of the soundness of the doctrine in Stanhope v. Earl Verney, (b), it may be thought that Mackreth v. Symmons (c) did in efi'ect determine that an equitable mortgagee without notice had not such right to preference ; for in that case, the plaintiff had a lien as vendor, the defendant was a subsequent mortgagee, to whom a conveyance had been made by the assignees of the vendee under a decree of the Court, without prejudice to the vendor's claims, of which, however, the defendant had not notice at the time of the contract for the mortgage : the defendant afterwards foreclosed, but without making the plaintiff a party to his bill. It was proved that the legal estate was outstand- ing in a third person, so that all the incumbrances were equitable. Lord Eldon, after noticing that fact, observed, " then between equities the rule ' Qui prior est tempore, potior est jure ' applies ; " and gave judgment for the plaintiff, thus making no difference between this and any other species of equitable mortgage. Ld. St. Leonards said that Symmons had not the title deeds ; that fact cannot, with certainty, be collected from the case ; it was not urged in favour of the vendor that he had retained the deeds, which would have been a decisive fact in his favour ; nor is it stated that the trustee, Coutts, (in whom the legal estate was vested,) had the title deeds. But if Symmons had not the title deeds, the case is {z) Vol. 3, pp. 217, 218, ed. 10 ; 682, (6) See Ea^. KnoU, 11 Ves. 618. This ed. 14. doctrincwasrecognisedby Sir J.Wigram, (a) Butler's Note, 1 Co. Litt. 290, b, in WUmott v. Pike, 5 Ha. 14. XV. (c) 15 Ves. 350. Digitized by Microsoft® 410 LIENS ON LANDED ESTATE. Chap. 38. certainly not an authority in direct opposition to the opinion expressed by Ld. St. Leonards (d). In Rice v. Eice (e), V. C. Kindersley said that he had no doubt that in Mackreth v. Symmons (/) if the equitable mortgagee had, in addition to his contract for a mortgage, obtained the title deeds from his mortgagor, Ld. Eldon would have decided in his favour. (5.) Vendors' lien v. a railway or other company. The lien for the unpaid purchase money arises on a sale to a ra,ilway or other company, whether under the Lands Clauses Act or an agreement, the same as in ordinary cases {g) ; and it extends to compensation for severance when it forms part of the purchase money Qi). No lien for The lien does not extend to the costs of the statutory arbitra- tion, although they be payable by the company (i), nor to the vendor's costs upon the sum deposited by the company under s. 85 of the Lands Clauses Act {j), when the condition of the bond has been performed {k). Eent-charge. But where the consideration is a rent charged on all the lands of the company by agreement under the 10th & 11th sect, of the same act, the lien for the purchase money is gone Q). The owner of the rent charge is, however, entitled to a receiver of the tolls and net earnings of the undertaking (m), and can obtain leave to distrain on the lands of the undertaking comprised in his charge {n) but not on superfluous lands, the subject of a trust deed for creditors (o), nor on the locomotives (p). A railway leasing the line from the purchaser is equally bound by the lien {q). Ketnedy for The remedy for the vendor is a sale of the land purchased, free from all claims by the company or persons claiming under it (r). In some cases, a decree for an injunction was made against the (d) Sug. V. & p. 682, ed. 14. Floating Dock Co., 7 Eq. 409, V. C. (c) 2 Drew. 82. James. But see contra, Eytonv. Denbigh, (/) 15 Ves. 329. die. Co., ib. 439, M. R. ; S. C. 6 ib. 488, (g) Walker v. Ware, • Seslop,.! De G. 11. & G. ^y) II, 477 ; Exp. Stewart, sup. \z) Exp. Harris, 8 C!h. 48. Digitized by Microsoft® 448 OEDEE AND DISPOSITION IN BANKEUPTCT. Chap. 42. Possession after liquida- tion petition. Attempts to obtain pos- session. Injunction. Trustee. Entry and sale before the bankruptcy take the case out of the statute (g) ; and possession taken of stock in business is sufficient to carry furniture in the house (h). Where possession is taken between the presentation of a liquida- tion petition and the order, the goods are protected (i). Attempts by the creditor to obtain possession before the bank- ruptcy, the creditor being excluded, are sufficient (k) ; but an intention not acted on will not do (Q. Where the assignee put a man in possession, but the assignor continued to live on the premises, there was not sufficient possession (m). The sheriff's wrongful possession is still the possession of the mortgagor (n) ; seem, if the goods are rightfully in hands of sheriff (o). The true owner taking back the goods without notice of an act of bankruptcy takes the case out of the statute (p). And an injunction can be obtained by the true owner (q). Where the mortgage was taken in the name of a trustee whose name was over the stores, and the bankrupt served behind the bar, there was no reputed ownership (r). Proviso for quiet enjoy- ment. (5.) Mortgagor and mortgagee. Where a mortgagor is, by the mortgage deed, entitled to remain in possession till demand, he is in possession with the consent of the true owner, the mortgagee (s). It is true, that where there is a mortgage of chattels, with a pro- viso for quiet enjoyment by the mortgagor till default, or where the mortgagor takes, under the mortgage deed, an interest in the (g) Ghahmn v. Wehb, 3 F. & F. 239. (h) JU Esliclc, 4 Ch. D. 496, C. J. Bacon. (?;) R& WrigU, 3 ib. 70, C. A. (fc) Exp. Harris, 8 Ch. 48. [I) Dremn v. Short, 1 Jur. N. S. 798, Q. B. (m) Ea^. Booman, 10 Eq. 63, V. 0. Bacon ; Exp. McLean, 24 L. T. N. S. 144. («) Exp. Edey, 19 Eq. 264, V. C. Bacon. (o) iJ« Baldwin, 2 De G. & J. 230 ; 4 Jiir. N. S. 522. But see Exp. Lamb, 14 "W. R. 112. And Ban-ow v. Bell, 2 Jur. N. S. 159, Q. B. [p) Oraham V. Farber, 18 Jui-. 61, C. B. (?) Mather v. Lay, 2 Jo. & H. 374. (r) Edmands v. Best, 7 L. T. N. S. 279, Exc. (s) Freskney v. Carrich, 1 H. & N. 653 ; Ee Atkinson, Eonb. Bk. R. 271 ; Cook V. Walker, 25 L. T. 51 ; Homsby V. Miller, 5 Jur. N. S. 938 ; 1 E. & E. 192 ; Spackman v. Miller, 9 Jur. N. S. 50 ; 12 C. B. N. S. 659 ; &3>. Harding, 15 Eq. 223, V. C. Bacon ; notwithstand- ing Muller V. Moss, 1 M. & S. 335 ; Ashton V. Blackslvaw, 9 Eq. 610, V. C. Malins ; Exp. Eoinan, 12 ib. 598, V. C. Bacon ; Eayp. Union Bk. of Manchester, ib, 354, V. C. Bacon. Digitized by Microsoft® Sect. 5. MORTGAGOR AND MORTGAGEE. 449 chattels, determinable upon his default in payment, or by notice Proviso for from the mortgagee, the mortgagor is, in a sense, the true owner, m"nt.''°^°^ and the mortgagee cannot, until the term or interest of the mort- gagor is determined, bring trover (t) ; and if the mortgagee seizes the chattels without due notice of payment, the mortgagor can bring trespass against him (u). But under a proviso or term of this kind, the mortgagor has been held not to be the ' true owner ' within the reputed ownership clause, on the ground that such inte- rest of the bankrupt was really illusory and substantially, if not technically, permissive ; that the law will not allow a mortgagor of chattels to stay in possession and so evade the rule ; and that where the mortgagee can enter into possession by giving a short notice, or (as it was put by Mr. Justice Willes) where the mortgagee consents to put himself in a position in which he has no imme- diate right to the possession of the goods, they are, in reality, in the possession of the mortgagor with the consent of the true owner (x). So far as his general creditors are concerned, the mortgagor in such a case has the reputation of absolute ownership, though as between himself and the mortgagee he has a real, though limited, interest. Of course where the mortgagor has not even such interest, but merely a licence to use the chattels mortgaged, the reputed ownership clause clearly applies (y). When the mortgagee contracted to sell at the date of the bank- ruptcy, the possession of the mortgagor brought the case within the clause (z). (6.) Sole possession necessary. The reputed ownership clause is confined to cases where the bankrupt is in sole possession as sole reputed owner, and therefore does not apply to the case of a bankrupt in joint possession of goods by himself and his partner (a), although his partner be a dormant partner (6) ; nor to the case of dissolution, when one partner is collecting the assets (c) ; but where one partner after {t) Fenn v. BUtlestone, 7 Exc. 152. 474 ; 36 L. J. Q. B. 247, Exc. Ch. ; re- (m) Bricrly v. Kendall, 17 Q. B. 937 ; versing 2 L. E. Q. B. 41 ; Exp. Dorman, 16 Jur. 449 ; 41 L. J. Q. B. 161. 8 Ch. 51. (a;) Spademan v. Miller, mp. (i) Reynolds v. Bowley, sup. ; Exp. (y) FresMey v. Garrick, sup. ; Homsby Hayman, 8 Ch. D. 12, C. A. V. Miller, mp. (c) Exp. Cooper, 1 M. D. & D. 358. (z) Barnes v. Pinhney, 36 L. J. Ch. See Ei^. Sprague, 4 De G. M. & 6. 815, M. E. 866. (o) Reynolds v. Bowley, 2 Ti. E. Q. B. G G Digitized by Microsoft® 450 OEDEJl AND DISPOSITION IN BANKEUPTCY. Chap. 42. Sole possessioa dissolution uses the plant and stock of the firm in his separate trade, they are in his separate order and disposition (d) ; and so where one partner purchases the assets under a decree and is allowed, before payment, to go into possession as purchaser (dd) ; and also where the real owner of property allows it to be employed in a business' in which ■ another person is partner with himself; the. property is in the reputed ownership of the partnership (e). But in ByaU V. Bowles (/), it was held that if a moiety of stoek in Ifade be mortgaged by one partner to another, and they 'both continue ihe apparent owners,, this^ is not, a suffioien/t possession to. give a specific lien against general creditors; and that, if an undiTided share of stock in trade be assigned to a stranger, it is necessary that the mortgagee should be admitted into the'business to render the security valid. Where a partner to whom the machinery and stock in trade belonged died, and his exeeiitors (the co-partner- and widow) were authorised to carry on the business, vhichlthey did, the machinery and stock were held on their bankruptcy not to be in their order and disposition (^).. Property of a trust lodged without the consent of the cestiiis que trust with the firm of which the trustee was a partner is not within the clause (/i). . Where furniture is settled to the separate use of a wife, and the joint possession of the husband and wife is consistent with the deed, such possession of the husband does not fall within the clause; the wife is agent for the trustees (i). Secus where the possession of the husband is not in accordance with the deed {k). Articles hona fide substituted for the settled articles will stand on the same footing (Z). Partner trustee. Possession of husband and wife. (7-.) Custom of trade. But the reputed ownership clause does, not apply where the pos- (d) n. [dd) Graham v. McCuUoek, 20 Eq^. 397, V. d. Malins. See Brewster's Assignees, 4 De G. M. & G. 866 ; 22 L. J. Bky. 62. (e) Exp. Haymam,, 8 Oh. D. 12 C. A. (/) 1 Vea. S. 349 ; 1 Atk. 165. {g) Exp.Mamchester Bank, 12 Ch.D.917. (A) Exp. Moore, 2 M. D. & D. 616. (i) Cadogan v. Kemnett, Cowp. 432 ; Jarmwn v. WoUoton, 3 T. E. 618; JTaseUnton v. Bill, ib. 620 n. ; Simmons V. Edwards, 16 M. & W. 838 ; Exp. Car, 1 Ch. D. 302, V. G Bacon. But see AsMon V. Blackshaw, 9 Eq. 510, T. C. Malins, which is not reoonoilahlo with tKese cases. (k) Darly v. Smith, 8 T. E. 82 ; observed on Ea^. SymTtwns, 14 Ch. D. 693, C. A. (Q Maselvnton, v. Oill, sup.; England V. JDozvns, 6 Beav. 269 ; 6 Jur. 1075 ; Duiwan v. Cashin, 10 L. E. C. P. 554. Digitized by Microsoft® Sect. 7. CUSTOM OF TEADE. 45I session is in accordance with the custom of the locality or of the trade, as of articles of machinery which by custom are let with the mill (m) : and a practice in the factory districts is referred to of inserting advertisements, stating the machinery to he the property of the lessor and let by him for a term only (m). And the clause does not apply to barges bearing the debtor's (0) Hiring barges, name and so registered, there being a custom in the coal trade for coal merchants to hire barges, and paint their own name there- on (p) ; nor to 'books deposited with a bookseller to sell on com- mission, such a custom being notorious (q) ; nor to the furniture in an hotel, if there is a custom of hiring furniture for hotels (r). A custom of letting cabs by cab proprietors upon a deferred pay- ment system, was held not to be proved (s). Similarly a custom of leaving goods sold in vendor's posses- Other cases of sion for convenience of vendee, as in case of pigs (t) ; whiskey in bonded' warehouse (u) (and it is immaterial whether a delivery order is given) ; tea warrants (x) ; hay {y) ; and pianos on hire and sale (z), takes case out of the statute. But a custom, in order to take a case out of the order and dis- Custom must position clause, must be clearly proved (a), either by reported cases, or as a question of fact (b) ; and must be one which the ordinary creditors may be reasonably presumed to have known (c). A custom in certain localities to stack the sold produce of a farm apart from the unsold produce, was successfully insisted on {d). On the other hand, proof of a custom to let old collieries furnished and virgin collieries unfurnished, is fatal to the claim of a lessor to the furniture of a virgin colliery (e). (to) Sufford V. Bishop, 5 Euss. 346, N. S. 613, Goulbum. 354 ; Horn v. Baker, 9 East, 215 ; Storer (s) Se Hill, 1 Ch, D. 503 n. C. A. V. Hunter, 3 B. & Cr. 368 ; Waison v. (t) Priestley v. Pratt, 2 L. E. Exc. 101. Peache, 1 Bing. N. C. 327 ; Mullet v. {u) Exp. Fatix, 9 Ch. 602. Cfrecn, 8 Car. & F. 382. (a) Se Birt, 15 L. T. N. S. 368, Bky. (n) 2 Dav. Conv. 710, ed. 3. (2/) Pennell v. Fox, 1 F. & F. 617 ; Be (0) Kirkley v. Hodgson, 1 B. & Cr. Terry, 11 W. E. 113, Bky. 588. (s) Se Blanshard, 8 Ch. D. 601, V. C. (y) Waison V. Peache, sup. Bacon. (g) Whitfield v. Brand, 16 M. k W. (a) Re Hill, sup. 282 ; Eosp. Qreenwood, 6 L. T. N. S. 658, (5) Eoyp. Powell, sup. ; E.rp. Wing- Bky. fieU, 10 Ch. D. 591, C. A. (r) Exp. Powell, 1 Ch. D. 501 ; Be (c) lb. Hams, 10 Ir. Ch. 100, Bky. ; Be Head, {d) Be Terry, sup. 12 W. E. 215, Bky. ; Be Cobbold, 9 L. T. (e) Coombs v. Beaumont, 5 B. & Ad. 72. G c 2 Digitized by Microsoft® 452 OEDER AND DISPOSITION IN BANKRUPTCY. Chap. 42. Wharfinger. Demise by execution ■ creditor to debtor. Factor and other cases. Chattels real. (8.) Wharfinger and other cases of constructive delivery. Where goods lying with a wharfinger in the name of A. had been purchased by B., who permitted them, for several months after, to remain at the wharfinger's La the name of A., during which time A. disposed of a part ; but on notice of his insolvency, B. carried the order for the delivery of the goods to the wharfinger, and had the goods transferred into his own name nine days after A. had become bankrupt, it was held that there was a complete transfer before the bankruptcy (/). But where goods were taken in execution, and assigned by the sheriff and debtor to the creditor, who put his initials on every article and demised them to the debtor at a certain rent, who remained in possession to the time of his bankruptcy, it was held that the debtor was the reputed owner, there not being a notorious change of ownership {g). The possession of goods by a factor is not within the bankrupt laws (fe), if the relation of factor is notorious (i) ; nor is the pos- session by the debtor after assignment of chattels real (fc) ; nor when the goods are in the possession of the true owner, subject to a lien by agreement (Z) ; nor when the possession as of a lessee is with the consent of the mortgagor, who is permitted by the true owner (the mortgagee) to retain possession (m) ; nor when the person in whose possession the chattels were by the consent of the true owner pledges them, and they are in the possession of the pawnee at the time of the pawner's bankruptcy (re). (9.) Fixtures and utensils of trade. Nor does the statute apply to the possession by the debtor of fixtures, &c, ; nor to fixtures annexed to the freehold, though (/) Jcmes V. Dyer, 1 Rose, 339. {g) lAngard t. Messiter, 1 B. & Cr. 308 ; Exp. Lowering, 9 Oh. 621. (h) Ryall v. Bowles, 1 Ves. S. 349 ; 1 Atk. 165 ; Mace v. Gadell, Cowp. 232 ; Whitfield V. Brand, 16 M. & W. 282. And sup. p. 445. (i) MeFawms, 3 Ch. D. 795, V.C. Bacon, Cooke's Bankr. Law, ed. 8, 346 ; Janes V. Gibbons, 9 Ves. 410 ; Stephens v. Sole, 1 Ves. S. 352 ; Bourne v. Dodson, 1 Atk. 154. (l) Hawthorn v. Mweastle B. Co., 8 Q. B. 734. (m) Fraser v. Swansea Canal Naviga- tion Co., 1 A. & E. 854. {k) Byall v. Bowles, sup. And see {n) Greening v. Clark, 4 B. & Cr. 316. Digitized by Microsoft® Sect. 9. FIXTURES AND UTENSILS OF TRADE. 453 movable by the tenant (0) ; but it does apply after assignment of fixtures severed from the freehold (p). In Trappes v. Hwrter{q), it was held that machinery and Traces r. utensils of trade, which, by the custom of the district, were bought ^' and sold distinct from the freehold, whick had been mortgaged, and were capable of being removed without injury thereto, and would be removable as between landlord and tenant, passed to the assignees of the mortgagor, on the ground that the machinery had not passed under the mortgage. But this case seems opposed to the current of authority, so far as it would give the trade fixtures to the assignees (r), as being in the reputed ownership of the mortgagor ; and so far as it bears on the question of reputed ownership, it may be considered as overruled (s). It may be doubted even if the construction of the deed in Trappes v. Harter {t) can be reconciled with the cases establishing the principle, that fixtures pass by a conveyance of the land without being specified. Fixtures, like land to which they are attached, pass by title ; possession does not raise an inference of ownership (u), although they are assigned by a separate deed (r). Whether the fact that the fixtures were affixed for the more con- venient use of the owner would bring them within the clause : queer e (w). Where however a deposit was made of an assignment of a lease, in which assignment trade fixtures were included, the trade fixtures were held to be within the clause (x). To show more clearly than could be done by general words, the species of articles which were adjudged not to be within the order (0) JEa^. Oowell, 17 L. J. Bankr. 16 ; 261 ; £e Trethowan, 5 Ch. D. 559, V. C. Boydell v. M'Michael, 1 C. M. & E. 177; Bacon ; appealed from, but compromised ; Hyall V. Howies, sup. ; Sxp. Quincy, 1 Thompson v. Pettit, 10 Q. B. 101. See Atk. 477 ; ITom v. Baker, 9 East, 215 ; ShvMleworOiY. Bemaman, 1 De G. & Jo. Coombs V. BeaumoiU, 5 B. & Ad. 72 ; 322 ; 3 Jur. N. S. 1313. Exp. SyJces, 18 L. J. Bky. 200 ; Eubhard (s) Walmsley v. Milne, 7 C. B. N. S. V. Bagshaw, i Sim. 326 ; Ctark v. 121 ; Oullwick v. Swindell, 3 Eq. 249, Crownshaw, 3 B. & Ad. 804. 253, M. E. ; WUtmjrre v. Empson, 23 ( p) Myall V. Bowles, sup. ; Horn v. Beav. 313 ; 3 Jur. N. S. 230. See Baker, sup. ; Hubbard v. Bagshaw, sup. Waterfall v. Penistone, 3 Jur. N. S. 15 ; And see Trappes v. Hwrter, 2 Cr. & M. 6 E. & B. 876. 153. (0 Sup. (j) Sup. (m) Boydell v. M'Michael, sup. (r) See Horn v. Baker, sup. ; Rufford («) WhUwMre v. Empson, sup. V. Bishop, 5 Ruas. 346 ; Boydell v. (to) 2 Sm. L. C. 217, ed. 6. And see M'Michael, sup. ; Storer v. Hunter, 3 B. 439 {n). & Cr. 368 ; .Ecp. Acton, 4 L. T. N. S. (a) Re Trethowan, sup. and qu^^e. Digitized by Microsoft® 454 ORDER AND DISPOSITION IN BANKRUPTCY. Chap, 42. Specimen of articles not within clause Utensils of trade. and disposition clauses, the following items were selected by the reporters in Rufford v. Bishop (y), as a specimen, from the first part of the schedule : — Iron chest in of&ce ; grates in mansion- house s weighing machine and clock ; floor-plates and boshes ; grinding-stone with cast-iron ring, shaft or axis, and wrought- iron work in clay-mill ; wood-turning lathe, with cast-iron wheels, shafts, carriages, head stocks, rests, and popits; wrought-iron and steel spindles, &c. ; cast-iron spur wheels and bevel wheels ; and cast and wrought iron shafts and spindles, and carriages with long trains of solid and pipe shafts, communicating motion from the forge lathe wheels to the wood lathe ; pair of large shears, and bed in puddler's forge ; hollow force to. filtering forge, enclosed in cast iron plates in wheels ; hoop-mill engine, thirty-nine inch cylinders eitra bed plate; street mill engine, thirty-eight inch cylinder (z). Utensils of trade or other movables leased to, or mortgaged by, a bankrupt, are in general within the clause {a). (10.) Ships. If the mortgage of a ship, or any share therein, is duly regis- tered according to the Merchant Shipping Act of 1854 (&), the rights of the mortgagees will not be subject to the order and dis- position clause. Where the registered mortgages of vessels were deposited by the mortgagees with their bankers, they were held not to be in the order and disposition of the mortgagees, for an assignment of a mortgage of a ship can only be made by indorsement on the instru- ment of mortgage (c). As to the effect of a submortgage by deposit, in taking a regis- tered mortgage of a ship out of the clause, see {d}'. As a general rule, an unfinished ship in the builder's yard is not within the clause (e). , But an unregistered agreement as to a ship is within it (g). S. 13; affirmed «. 477; 32 L.J. Ch. 127. (d) lb. (e) Bbldemess v. Rankin, 2 De G. F. fc J. 258 ; 6 Jur. N. S. 903, 929 ; Exp. Watts, 9 ib. 238 ; 3 De G. J. & Sm. 394; Swainston v. Clay, i GiflF. 187; 9 Jur. N. S. 401, V. C. Stuart ; varied 11 "W. R. 811, L. J. ; 32 L. J. Ch. 505 ; 3 DeG. J. & S. 558. ■ ig) Liverpool Boro gh Bk. v. Turner, 9 W, B. 292, Camt C . C. {y) 5 Russ. 346, 354. (z) Trappes v. Barter, 2 Cr. & M. 153. (a) ffom T. Baker, 9 East, 215 ; 2 Smith's L. C. 190, ei 8; Lingham v. Biggs, 1 B. & P. 82 ; Exp. hovering, 9 Ch. 621 ; Brysm, v. Wylie, 1 B. & P. 83, n. ; 9 East, 240 ; lAngard r. Messiter, 1 B. & Cr. 308 ; Shuttleworth y. ffemaman, 1 De G. & J. 322 ; 3 Jur. N. S. 1313. (6) 17 & 18 Vict. 0. 104, ss. 66, 72. (c) Zacon v, Liffm, 4 Giff, 75 ; 9 Jur. N. Digitized by Microsoft® Sect. 10. SHIPS. A mortgage of cargo in a ship abroad, where notice is delayed so that the captain only received it after the banlu-nptcy when there were means of communication, is within the clause (h). (11.) Possession of uncertificated bankrupt. Upon the same principle of reputed ownership, where an undis- charged bankrupt is allowed by his trustee to trade, the assets, upon a second banki'uptcy, belong to the assignees under the latter (i). There must however be knowledge and consent on the part of the trustee ; mere laches, not amounting to fraud, will not do. It is no part of the duty of the trustee or creditors to look after the debtor {k). If an uncertificated bankrupt, so trading with the consent of the trustee, die, his estate will be so administrated as to pay off the subsequent creditors first (I) : but a simple contract creditor of such uncertificated bankrupt has no right to bring an action to set aside a previous voluntary settlement of the bankrupt (m). Securities given to the subsequent creditors of such bankrupt without notice of the bankruptcy are binding upon the trustee (m). A legacy to such bankrupt will belong to his assignees, notwith- standing such trading with their consent (o). (12.) Shares in companies. Certificates of shares of a company deposited with, or shares assigned to, a creditor without notice to the company, are in the order and disposition of the holder {p). In a case where the directors of a company assigned their shares Directors' and salaries to the company to secure debts due from them on slices, their private account, and empowered the company to retain their salaries and dividends, and sell their shares, but until an order {h) Exp. LvMS, 3 De G. & Jo. 113. & G. 395. See Acraman v. Bates, 6 Jur.' N. S. 294, (jti.) Collins v. Burton, 4 De G. & J. Q. B. 612 ; 5 Jur. N. S. 1113 ; reversing ib. (t) Troughton v. GiUei/, Amb. 630 ; 952, V. C. Stuart, Hxp. Ford, 1 Ch. D. 521, C. A. ; Kera- (n) Be Cazncau's Legacy, 2 K. & J. koose V. Brooks, 8 Mo. I. A. 339 ; Eagel- 249 ; 2 Jur. N. S. 157, V. C. Wood. hack V. Nixon, 10 L. R. C. P. 645 ; Meggy (o) Birch's Legacy, 2 K. & J. 328. V. Imperial Discount Co., 8 Q. B. D. 711. (i?) Exp. Spencer, 1 Deac. 468 ; Exp. (k) Exp. Ford, sup. ; qualifying Se Vallance, 2 ib. 354 ; Ei^. Watkins, 2 Bawbone's Tr. 3 K. & J. 485. M. & A. 348 ; reversing, 1 {*. 689. (J) Tucker V. Hernaman, 4 De G, M. Digitized by Microsoft® 455 456 OEDER AND DISPOSITION IN BANKEUPTCY. Chap. 42. directing otherwise the directors were to act as owners of the shares ; one of the directors having become bankrupt, it was held that his shares passed as in the order and disposition of the bank- rupt, but that the company had a right to set oiF against the bankrupt's debts the dividend and salary due at the time of the bankruptcy (q). Secretary. Where the secretary of a company, being the holder of shares therein, deposited them with a creditor, but no other notice was given to the company, on the bankruptcy of the secretary the shares were held to be in his order and disposition (r) ; secus, . where notice was given, and transfer left for indorsement (s). Statutory If an equitable mortgagee of shares give notice to the company, trus^.'™ ^ *" *^® shares wiU not be in the order and disposition of the holder thereof, notwithstanding the statutory provision forbidding the entry on the registry and the receipt by the company of notice of any express implied or constructive trust (t). Notice. Verbal notice in the course of business to the directors by the assignor of the shares will take them out of his order and dispo- sition (m). How far interests in shares are choses in action within the order and disposition clause, see sup. p. 446. Shares in another company in name of the chairman, as trustee for his own company, which shares his company had no power to buy, were held to belong to his company and not to be in his order and disposition (x). (13.) Some cases not within the statute. The following cases do not fall within the statute : — Keceiver. Horses hired to brewers {y) ; goods in possession of a receiver appointed at the instance of the creditor {z) ; goods consigned to a known agent for sale (a) ; goods sent on sale or return (6) ; goods (g) Nelson v. London Ass. Go., 2 S. & S. 292. (r) Exp. BmiUon, 1 De G. & J. 163 ; 3 Jur. N. S. 425. («) Morris v. Oannan, i De G. F. & J. 581 ; 8 Jur. N. S. 653. (i) JSisp. Stewart, i De G. J. &Sm. 543; 11 Jur. N. S. 25 ; 34 L. J. Bky. 6 ; Ee Pearse, 6 De G. M. & G. 714. See 19 & 20 Vict. 0. 47, s. 19, and 25 & 26 Viet. 0. 89, s. 30 (The Companies' Act, 1862). And see Exp. Boulton, sup. . (u) Exp. Agra Bk. 3 Ch. 555. (x) G. E. B. Co. V. Turner, 8 ib. 149. (2/) Exp. Elmer, 13 W. E. 476 ; Exp. WatMns, 8 Ch. 523 n., V. C. Bacon. {z) Taylor v. Eckersley, 5 Ch. D. 740, V. C. Bacon. (,a)Exp. Bright, 10 ib. 566, C. A.; Ee Kullberg, 12 W. R. 137. But see Ex^. Boy, 7 Ch. D. 70. (J) Esq)., Wingfield, 10 ib. 591, C. A. ; Digitized by Microsoft® Sect. 13. CASES NOT "WITHIN THE STATUTE. 457 of bankrupt distrained for rent but not sold (c) ; unpaid for goods allowed to remain in the vendor's possession till paid for, quaere {d). The costs for which a solicitor claims a lien are not in his order Lien of and disposition until an order has been made directing payment of the costs out of the fund (e). Bolicitor. (14.) Other canes within the statute. The following cases are within the statute : — Vendor's lien or equitable charge on goods sold and delivered (/) ; goods which a lessee has covenanted to keep on the premises to be sufficient to cover the rent {g) ; a contract to supply goods assigned without notice (/() ; goods of the estate of an intestate with which Administrator, the administrator trades, being the holder of an unregistered bill of sale of the intestate (i) ; where the real owner is intestate and no administration is taken out, a stranger cannot set up that fact against the trustee {k) ; next of kin in possession of estate of intes- tate (Z) ; goods sold and hired back (m), but qiicere if there had been a custom, as in the case of pianos ; manager's lien on goods of a firm for advances {n) ; the copyright of, or right of publishing, a newspaper (0). (16.) Vesting. Under B. A., 1849, ss. 125 & 141, an order for sale was neces- sary to vest the property ; but by B. A., 1869 {p), property within the order and disposition clause vests in the trustee upon appoint- ment. Exp. Sheppard, 4 L. T. N. S. 808, 334 ; North v. Gwmy, 1 Jo. & H. 509. Bi;y. (i) Kitchin v. Ibbetson, 17 Eq. 46, V. (c) .He Stockton Iron Furnace Co., 10 C. Malins. Ch. D. 335, C. A. ; Lehain v. Philpott, (k) White v. Mullett, 20 L. J. Exc. 10 L. R. Exc. 242 ; Sacker v. Chidley, 291. 11 Jur. N. S. 654. (I) Exp. Thomas, 6 Jur. 979, M. E. id) Re Grant, 7 L. T. N. S. 536 ; (m) Uxp. lovering, 9 Ch. 621. See Trim.aU v. Lovegrove, 10 W. R. 527. sup. p. 452 (). The joinder of a necessary party in a conveyance is not always a suflSlcient consideration (c). It seems that voluntary gifts to charities are not within the Gifts to statute (cZ). <=^'^*'^^- Although the deed be apparently voluntary, the consideration Consideration may be proved aliunde (e) ; and the onus of proving some valuable " *" " consideration falls on the person sustaining the deed (/). Onus of proof. (o) Seap v. Tonge, 9 Ha. 90. And C. A. See Fersse v. P. 7 CI. & F. 279. See (s) TarUton v. Liddell, 15 Jur. 1170, Bmjspoole v. GolU-ns, 6 Cli. 228. Q. B. ; 17 Q. B. 390 ; Doe v. liolfe, 8 [p) Owen V. 0. 3 H. & C. 88. A. & E. 650. (?) Drew V. Martin, 2 H. & M. 130 ; (a) Richards v. Lewis, 15 Jur. 512, 10 Jur. N. S. 356. And see Ford v. C. P. Stuart, 15 Beav. 493—9. (6) I^- (r) Jones v. Marsh, Ca. t. Talb. 64 (c) Doe v. Folfc, sup. (s) Towncndv. Tolcer, 1 Ch. 446. (d) Corp. of Newcastle v. Att.-CJcn., («) Bayspoole r. Colliit.% sup. 12 CI. & F. 402. {u) Eosher v. IVilliams, 20 Eq. 210, (c) Fott v. Todhunter, 2 Coll. 76 ; v. C. Malins. Gale v. Williamson, 8 M. & "W. 405. (x) Spurgem, v. Collier, 1 Ed. 55. {/) Kelson v. K. 10 Ila. 385 ; 17 Jur. {y) Trowell v. Shentm, 8 Ch. D. 318, 129. M K Digitized by Microsoft® 630 JPEAUDTJLENT SETTLEMENTS. Chap. 48 FeTsons claim- ing through the volunteer, Frandulent conveyances. But where the volunteer has, before the subsquent purchase, conveyed the settled property for marriage or other valid con- sideration, the settlement cannot be set aside (^f). A deed for valuable consideration may yet be fraudulent. Thus a secret mortgage to secure a valid debt retained by the mortgagor for his own purposes is fraudulent within the statute against a bond fide mortgagee Qi). So also a mortgage to a relative, the title deeds being left with the mortgagor to enable him to raise money on them is voluntary and fraudulent (i) ; and the assignee for value from the volunteer, if he allows the deeds to remain with the original mortgagor, is also postponed (/c) ; and the settlement is fraudulent if it reserves to the settlor an unlimited power to mort- gage (Z); but a power to charge with a particular sum is not so (m) ; and it is fraudulent if it reserve a power to make leases for any term with or without rent(n); but a power to be exercised with the consent of a third person is not (o). (4.) Limitations to collaterals. A. marriage settlement, by which interests in lands are limited to collaterals, is voluntary and fraudulent so far as they are con- cerned (j)), unless there is some other consideration (q) ; but a settlement by a woman on her marriage in favour of her illegitimate children (r), or of the children of & former marriage (s), is not ; but (g) Prodgers v. Langlmm, 1 Sid. 133 ; Oeorge v. Millbomke, 9 Ves. 190 ; Parr v. Eliason, 1 East, 95 ; Payne v. Mortimer, 1 Giff. 118 ; 5 Jur. N. S. 307 ; 28 L. J. Ch. 716 ; affirmed 4 De G. & J. 447 ; 5 Jur. N. S. 740 ; The East I-ndia Co. v. Clavel, Free, in Ch. 377, is not law. And see Sma/rtlcY. Williams, 3 Lev. 387 ; Neviport's Case, Skinn. 423 ; Kirk v. Clark, Free, in Ch. 275 ; £rotm v. Garter, 5 Ves. 862 ; Meggison v. Foster, 2 Y. & C. C. C. 336. {h) Craeknell v. Janson, 11 Ch. D. 1, C. A. (i) Zloyd T. Attwood, 3 De G. & J. 614 ; 5 Jur. N. S. 1322 ; Perry v. Att- wood, 25 Beav. 205 ; 3 Jur. N. S. 996 ; 2 De G. & J. 21 ; 4 Jur. N. S. 101. (k) lb. (Z) Ta/rlack v. Marbury, 2 Vem. 510. («i) Jenkins v. Keymis, 1 Lev. 150. (ra) Lavender v. Blakstone, 2 ib. 146. (o) Sutler V, WaterJiouse, 2 Show. 46. (p) Heap V. Tonge, 9 Ha. 104 ; Suttm V. Chetmynd, 3 Mer. 249. See Sug. on the, Law of Property, 163, Massey v. Travers, 10 Ir. C. L. 459, C. P. ■,ReCuUin, 14 Ir. Ch. 506 ; Smith v. Cherrill, i Eq. 390, V. 0. Malins ; Jenkins v. Kemishf, Hard. 395 ; White v. St/ringer, 2 Lev. 105 ; Osgood v. Strode, 2 P. Wms. 245 ; Ball V. Bamford, Prec. in Ch. 113; Beeves v. R. 9 Mod. 132 ; EwrtY. Middle- hmst, 3 Atk.' 371. (q) Ford v. Stuart, 15 Beav. 493—9. i{r) Dickenson v. Wright, 5 H. & N. 401 ; 7 Jur. N. S. 1032, Exo. C. ; 30 L. J. Exo. 113. See 3 Jur. N. S. pt. H. p. 485 ; but see Clarke v. Wright, 6 H. & N. 849, Exo. Ch. (s) Newstead v. Searles, 1 Atk. 265 ; West, Ch. 287 ; Ithsll v. Beane, 1 Ves. S. 215 ; Chapman v. Emery, Cowp. 280 ; 4 Cm. Dig. 443, ed. 4, But see Sug. Y. & P, 717, ed. Digitized by Microsoft® Sect. 4. XIMITATIONS TO COLLATEEALs. 53^ trusts in favour of the children of a. future marriage are voluntary {t), unless the trusts are interposed between the limitations to the sons and the limitations to the daughters of the first marriage (m). So, limitations in a settlement of the wife's lands in default of children, in favour of her brothers and sisters are voluntary {x), or in favour of her niece {y). What act is sufficient consideration to support a limitation to younger brothers in a marriage settlement, see {z) ; but limitations to collaterals may be supported if there be any party to the settlement who purchases on their behalf (a). A purchase for value without notice from a fraudulent grantee is valid (fe). (6.) Wlw are pwrchasers within the statute. Persons claiming under ante-nuptial settlements arepurchasers (c); so if under post-nuptial settlements made ia consideration of ante- nuptial articles, or of an additional portion (d). An equitable purchaser is within the statute (e), and a mort- gagee is a purchaser pro tanto within it (/), as also an equitable mortgagee (g), and a mortgagee by deposit of title deeds (h), although the contrary was held at law {i) : also the purchaser under a settlement made in consideration of an intended marriage (k) ; so a person who releases a contested right in consideration of the conveyance to him (I), also lessees at rack rent (m) ; but a lessee without fine or rent is not {n). The subsequent purchaser or mortgagee can recover in an action Ejectment by for land (as he could formerly by ejectment) against the volun- ^"° ***'' («) Wollaston v. Trihe, 9 Eq. 44, 126 ; 18 Jur. 344. M. E. (/) Oliapman v. Emery, sup. ; While (u) Clayton v. Earl of Wilton, 3 Mad. v. Huascy, Prec. in Ch. 13 ; lAster v. 302 n. ; 6 M. & S. 67 n. ; iJe Cullin, Turner, 5 Ha. 281 ; Lloyd v. Attwood, sup. ««?■ (a;) Cotterdl y. Earner, 13 Sim.' 506. (?) Lloyd v. Attwood, sup. (y) Smith v. Cherrill, sup. (K) Lister v. Turner, sup. ; Me v. (z) Roe V. MUton, 2 "Wils. 358. See Knowles, 2 Y. & C. C. C. 172. Johnson v. Legard, 2 Mad. 283 ; T. & E. (i) Kerrison v. Dorrkn, 9 Bing. 76 ; 295 ; StackpooU v. S. 4 Dr. & W. 326. • Eolford v. H. 1 Ch. C. 217. (a) Heap v. Tonge, sup. ; Pulvertoft (Jc) Douglas v. Ward, 1 Ch. Ca. 79. V. P. 18 Ves. 92. (I) Eill v. Bishop of Exeter, 2 Taunt. (J) Doe V. MaHyr, 1 B. & P. N. E. 69. 332. (m) Ooodright v. Moses, 2 W. Bl. (c) Kirk v. Clark, sup. 1021. (d) Brown, v. Jcmes, 1 Atk. 190. (m) Upto^ v, Bassett, Cro. Eliz. 444, (e) Barton v. Fanheythiisen, 11 Ha. M M 2 Digitized by Microsoft® 532, FEAUDTJLENT SETTLEMENTS. Chap. 48. Suit to set aside fraudu- lent settle- ments. Judgment creditor. teers (o), and he may bring an action to complete his purchase or mortgage and set aside the voluntary deed. The Tolunteer is a proper party to a suit by the purchaser or mortgagee to set the voluntary deed aside (jj), but the volunteer has no equity to the purchase monies (q). And even if the sale is effected under a power contained in the voluntary settlement, the purchaser can safely pay the vendor the purchase monies, although, by the settle- ment, they ought to be held upon the trusts of the settlement (r). The purchaser or mortgagee cannot require the voluntary settle- ment to be delivered up to be cancelled (s). The settlor is himself bound by the settlement, and cannot bring an action to compel the purchaser to complete the contract (t), unless the defendant is a willing purchaser (m). Nor can the pur- chaser or mortgagee obtain relief in a suit instituted to set aside the settlement by himself and the settlor as co-plaintiffs (x). The volunteer may however shew, by evidence of the inadequacy of the consideration, that the purchase was colourable (y). And the declarations of the mortgagor are not admissible after his death, to prove payment of the mortgage money against the parties claiming under the settlement (^). A judgment creditor is not a purchaser within the statute (a), for he cannot be said to be one who gives money or other valuable con- sideration in order to have the land (6). The husband of a volunteer cannot on his marriage be treated as a purchaser under the statute (c) : nor is a person claiming under a post-nuptial settlement, unless made in pursuance of articles which were entered into before the marriage {d), and are binding (e). (o) Doe V. James, 16 East, 212. {p) Townend v. Taker, 1 Ch. 446. (?) lb. ; Ddking v. Whimper, 26 Beav. S68. (r) Evelyn v. Templar, 2 Bro. C. C. 148. (s) Se Hoghten v. Money, 35 Beav. 98 ; 1 Eq. 154 ; affirmed 2 Ch. 164. (0 Clarke v. Willott, 7 Exc. 313 ; Smith V. Garland, 2 Mer. 123. See Ayersl v. Jenkms, 16 Eq. 275, Lord Selbome. (m) Peter v. NieolU, 11 Eq. 391, V. C. Stuart. (k) Bill V. Cureton, 2 My. & K. 503. {y) Doe V. James, sup, (z) Doe V. Webber, 1 A. & E. 733. (a) Beavan v. Lord Oxford, 6 De G. M. & G. 507 ; 2 Jur. TS. S. 121 ; Dolphin V. Aylward, 4 L. R. H. L. 486 ; over- ruling Barth v. Ursjfeild, Bridg. 22 ; Girling v. Zowther, 2 Rep. in Ch. 136. See Barton v. Yanheythuysen, 11 Ha. 131 ; 18 Jur. 346. (J) 6 De G. M. & G. 517, per L. C. (c) Collins V. Burton, 5 Jur. N. S. 952, v. C. Stuart; reversed on other points, ib. 1113 ; 4 De G. & J. 612 ; Doe v. Lewis, 11 C. B. 1035 ; 15 Jur. 512 ; 20 L. J. C. P. 177. {d) Martin v. Seamore, 1 Ch. Ca. 170. («) Doe V. Rowe, 4 Bing. N. C. 737. See Trowell v. Shenton, 8 Ch. D. 318. Digitized by Microsoft® Sect.6. PURCHASEE from HEIR NOT "WITHIN STATUTE. 683 (6.) Purchaser from heir or devisee not within statute. The heir at law or devisee of the settlor cannot avoid the deed by a mortgage or conveyance for value (/). (7.) Generally. Where a fraudulent conveyance is made to a man who makes a mortgage honafide, and the conveyance is set aside by the creditors of the grantor, the title of the mortgagee is paramount to that of the creditors {g). A voluntary grantee has, against all other persons except a purchaser for value, a complete estate, and can set aside a previous voidable "conveyance (A). The existence of a voluntary settlement on the title is not a valid objection (i). (/) Parker v. Carter, i Ha. 409 ; Doe V. Leiois, sup. ; Doe v. Rusham, 16 Jur. 359, Q. B. ; Lewis v. Rees, 3 K. & J. 132 ; 3 Jut. N. S. 12 ; explaining Bur- rel's Case, 6 Kep. 72, and observing on {g) Majcyr v. Ward, 5 Ha. 598. (A) Dickinson v. Bun-ell, 35 Beav 257 ; 1 Ell. 337. (i) BvMerfield v. Heath, 15 Beav. 408 ; 22 L. J. Ch. 270 ; Clarke y. Willott, Jones V. Whitaker, 1 Long. & Town. 141. sup. Digitized by Microsoft® 534 CHAPTER XLIX. Voluntaiy preferences ■within spirit of banknipt laws. FRAUDULENT AND VOID MORTGAGES UNDER THE BANKRUPT LAWS AND WINDING-UP ACT. Sect. 1. Mortgages by voluntary preference generally 2. Mortgages of all a man's property 8. Framdulent mortgages under B. A. 1869, s. 92 4. Settlements when void in bankruptcy Windmg-wp act . , . . . • (1.) Mortgages by voluntary preference generally. 634 537 542 644 546 ■ There are many cases, particularly of voluntary preference, which, although not falling within the letter, have been held void as a fraud upon or an evasion, of the bankruptcy laws (a). The Court of Bankruptcy, it is said, has gone behind the code of laws established by parliament in adopting principles previously estab- lished (6). Thus, a voluntary preference on the eve of bankruptcy, although not void as an act of bankruptcy to which the trustees' title could relate as the adjudication was on the bankrupt's own petition, is void as against the spirit of the bankrupt laws (c). So a payment or security to any particular class of creditors, as the Stock Exchange creditors of a member thereof, is fraudulent (d) ; and a sale to an execution creditor to avoid a sale by the sheriff (e) ; and it has been contended that the fraudulent preference, although it may have occurred previous to the three months prescribed in B. A., 1869, s. 92 (/), is void, if not as a fraudulent transfer within B. A., 1869, s. 6, sub-s. 2, still under the old unenacted law of (a) Sust V. Cooper, Cowp. 629 ; Alder- son V. Temple, i Burr. 2234 ; 1 Sm. L. C. 33, ed. 8 ; JScp. Pearson, 8 Ch. 673. (6) Map. PoUinger, 8 Ch. D. 624, L. J. James. (c) Marks v. FeldTnan, 5 L. E. Q. B. 275, Exo. Ch. ; reversing 4 ib. 481. And see Sxp. Bailey, 3 De G. M. & G. 546 ; Jones v. Earber, 6 L. E. Q. B. 77 ; Mercer v. Peterson, 2 L. E. Exo. 304. (d) JSxp. Saffery, 4 Ch. D. 565, C. A.; affirmedj TomHns v. Saffery, 3 App. 0. 213, on different grounds. (e) Exp. Pearson, sup. if) Inf. p. 542. Digitized by Microsoft® Sect. 1. MORTGAGES BY VOLUNTABY PEEFEEENCE GENEEALLY. 535 fraudulent preference (g); but these cases can scarcely be reconciled with another class of cases (/»). Under former bankrupt acts, a voluntary assignment by a Voiuniary ' person in insolvent circumstances, of all his effects for the benefit t^iia^venta of any creditor in particular or his creditors generally, if made """ier old law, within three months before the imprisonment, or if made at any time with the intention of taking the benefit of the act, or if made after the imprisonment had begun, was void agaiast the assignees under 7 Geo. 4, c. 57, s. 32, and 1 & 2 Vict. c. 110, s. 59 (i), and the acts seemed to apply equally to such an assignment of part of his effects; -and a warrant of attorney for the express purpose of entering up immediate judgment and in contemplation of in- solvency, was a charge within these sections (k) ; but 7 Geo. 4, c. 67, has expired, and 1 & 2 Vict. c. 110, s. 59, has been repealed, and fraudulent or voluntary preferencies are now regulated by B. A., 1869, s. 92 ; inf. p. 542, which creates little difference. The following decisions were made under the old acts. An assignment or payment by an insolvent was not voluntary, if made for a bond fde consideration (Z) ; or under pressure on the part of the creditor (m) ; or even without pressure or threat, if there were a lon& fide demand on the part of the creditor {n) ; if, in fact, anything were done by the creditor to interfere with or control the debtor's will (0) ; and the circumstance of the grantor being the grantee's solicitor made no difference in this respect {p). Though the debtor may have desired to favour the creditor, yet if there was a bond fide application, and the act in any degree proceeded from such application, it was not entirely volun- tary, and therefore not fraudulent {q). There must not have been {g) 1 Sm. L. C. 33, ed. 8. See Exp. [n] Mogg Y.Baker, i ib. 348 ; Reynard Norton, 16 Eq. 404, C. J. Bacon, as op- v. Bobinson, 9 Blng. 717 ; Belcher v. posed to Exp. Pearson, sup. Prittie, 10 iJ. 408 ; Van Casteel v. Booker, (h) Allen v. Bonnett, 5 Ch. 516 ; Alton 2 Exc. 691 ; Ogg v. Shuter, 10 L. R. C. P. v. Sarrism, 4 L. E. Ch. 622 ; inf. p^ 165. 537 (k). I (0) Taeher v. Cocks, 1 B. & Ad. 152 ; (i) Binns v. Towsey, 7 A. & E. 869 ; Strachan v. Barton, 11 Exc. 650 ; John- Becke v. Smith, 2 M. & W. 191 ; Thomp- son v. Fesemeyer, 3 De G. & Jo. 13; son V. Jackson, i Scott, N. E. 234 ; 3 affirming 25 Beav. 88 ; London, tk County Man. & G. 621 ; overruling in part Bank, 16 Eq. 391, C. J. Bacon. Vavies v. Acocks, 2 C. M. & E. 461. {p) Johnson v. Fesemeyer, sup. (k) Sharpe v. Thomas, 6 Bing. 416 ; (?) Broion y. Kempton, 19 L. J. C. P. Thorpe v. Eyre, 1 A. & E. 926. 169 ; Edwards v. Qlyn, 2 E. & E. 29 ; 5 (I) Amell V. Bean, 8 Bing. 87. Jnr. K. S. 1397 ; BilU v. SmUh, 34 L. J. [m) Davics v. Acocks, sup. ; Knifjld v. Q. B. 63; 6 B. & S. 314; 1] Jixr. N. S. 155. Ferguson, 5 M. & AV. 389. Digitized by Microsoft® 536 PEAUDULENT AND VOID MORTGAGES. Chap. 49. The question depends on intention. ' In contem- plation of bankruptcy in old acts. any collusion : as if the creditor acted on a hint from his debtor as to his circumstances (r). Secus, if the creditor derived his infor- mation from a third person (s). The security was protected, though the debt was not actually payable (t) ; but the demand must have been made by some one entitled to make it {u), as by a guarantor (x), and the transaction must have been in the usual course of business (y) ; but knowledge by the creditor of the insolvent state of the debtor's affairs was held to be immaterial where the question was merely as to the voluntary charac- ter of the act (z). Where the security contained provisions for the benefit of third persons, the demand did not deprive those provi- sions of their voluntary character (a) ; nor had the holder of a collateral security the benefit of the demand (b). So a transfer of a part of a trader's goods in satisfaction of a pre-existing debt, if made voluntarily and in contemplation of bankruptcy, was held void as against the assignees under a subsequent adjudication (c). The question of fraudulent preference depends upon the inten- tion of the bankrupt ; if such intention is to defeat the distribution of the property under the bankruptcy laws, the circumstance of there being a demand by the particular creditor will go for nothing ; but if the moving cause was the solicitation of the creditor, and not the desire of the bankrupt himself to defeat the general distribution, that is no fraudulent preference (d). Considerable difference of opinion prevailed as to the meaning of the words ' in contemplation of banki-uptcy : ' see the cases col- lected (e) ; but if the circumstances of the debtor were such that bankruptcy or insolvency was inevitable, that would satisfy the expression 'in contemplation of bankruptcy ' (/). And a parol agreement for valuable consideration supported a subsequent equitable assignment of a debt due to the insolvent (r) Singleton v. Sutler, 2 B. & P. 283. (s) Belcher v. Jones, 2 M. & "W. 258. (t) Thompson r. Freeman, 1 T. R. 155 ; Hartshorn v. Sladden, 2 B. & P. 58i ; Crosby v. Crotich, 11 East, 256 ; Stracham, V. Barton, 11 Ex. 650. (u) Belcher v. Prittie, 10 Bing. 408. {x) Edwards v. Glyn, 2 E. & E. 29 ; 5 Jur. N. S. 1397. (y) Alderson v. Temple, 4 Burr. 2234 ; Abell V. Daniel, M. & M. 370. (z) Damson v, Robinson, 3 Jur. F. S. 791. (a) Morgan v. Horseman, 3 Taunt. 241. (5) Marshall v. Lamb, 5 Q. B. 115 ; 7 Jur. 850. (c) Sevan v. Nunn, 9 Bing. 107. {d) Per Parke, B. in Van Casteel v. BooTcer, 18 L. J. Exo. 9, 14, 20. (e) Eobs. Bkty. 130, ed. 2, and 139, ed. 3. (/) Johnson v. Fesemcyer, 3 De G. & J. 13 ; 25 Beav. 88 ; Gibson v. Boutts, 3 Scott, 229 ; Gibson v. Muskett, 4 Man. & G, 169. Digitized by Microsoft® Sect. 1. MORTGAGE BY FEAUDULENT PEEFEEENCE GENEEALLY. 537 made within three months before the imprisonment, and enabled the transferee of the debt to hold the money received from the debtor, to the amount of the advance, as against the insolvent's assignees (g). And the act was held not to apply to the case of an adverse judgment recovered against the insolvent within the three months, though by default, without clear proof of collusion between the creditor and the insolvent (h). Where the debtor executed the security when in embarrassed circumstances, and under expectation of going to prison, it was held to be a fraudu- lent preference, although no distinct act of bankruptcy was con- templated (i). These cases of fraudulent preference are referred to, as they The old casrs will form a guide in construing the clause against acts of prefer- to'present'act. ence, which are declared void by s. 92 of B. A., 1869, hereinafter set out, p. 542. (2.) Mortgages of all a man's property. A mortgage of all a man's property to secure a past debt is, in the absence of actual fraud, valid apart from the bankruptcy laws (fc). A hondfide sale by a trader of all his stock has always been held Sale of all not to be an act of banki'uptcy, if the purchaser was ignorant of any fraudulent intention on the part of the trader {I), although the purchaser had knowledge that an execution is intended {m) ; and the same will of course apply to a hondfide assignment by way of mortgage /or an actiud advance. Under the old bankruptcy law, a general assignment by a trader of all his effects for the benefit of all his creditors was an act of bankruptcy, because he thereby disabled himself from continuing his trade (n). It was generally considered that under the B. A., 1861 (since By nonirader. repealed), an assignment by a non- trader of all his property in trust (g TibbUs v. George, 5 A. & E. 107 ; 456 ; Rose v. HaycocJc, ib. 460, n. And Gumell V. Gardner, i Giff. 626 ; 9 Jur. see Harwood v. Bartlett, 6 Bing. N. C. K S. 1220. 61. (A) Thorpe v. Eyre, 1 A. & E. 926. (ot) Wood v. Dixie, 7 Q. B. 892 ; (i) Aldredv. Constable, 4 Q. B. 674. Sale v. Saloon Omnibus Co., 4 Drew. (Jfc) Alton V. Harrismi, 4 Ch. 622 ; 492 ; 28 L. J. Ch. 777. Allen T. Brnmctt, 5 ib. 581 ; Joriies v. (n) Robertson v. IMdell, 9 East, 487 ; Hwrber, 6 L. E. Q. B. 77 ; Shnibsole v. Stewart v. Moody, 1 C. M. & E. 777 ; Siissams, 16 C. B. N. S. 452. See Mahbs Topping v. Keysell, 16 C. B. N. S. V. Feldman, 5 L. E. Q. B. 275. 258 ; 10 Jur. K S. 774 ; 10 *. Ft. 2, [1) Eaoder v. Pritchard, 1 A. & E. 407. Digitized by Microsoft® 538 FRAUDULENT AND VOID MORTGAGES. Chap. 49. By a trader. Cases under statutes apply. Substantial or colourable exception. for all his creditors was an act of bankruptcy, as being a deed fraudulent within the policy of the bankrupt law (o) ; and, having regard to the provisions of the JB. A., 1869 (p), with respect to such deeds, there can be no doubt that a conveyance or assignment of this description, executed by a non-trader, will now be an act of bankruptcy (g'). An assignment by a trader of all his effects to a particular creditor, as a security for a pre-existing debt, has always been held to be a fraudulent preference and an act of bankruptcy ; and the knowledge by the creditor that the assignment comprises all the debtor's property, affects him with notice of the act of bankruptcy, though the assignment do not purport to convey all his effects (r). And all the cases on this subject under repealed statutes apply under this sect. (s). A mortgage of all a trader's property, or with a colourable ex- ception, whether to a particular creditor or for distribution among all the creditors {t), and though without fraud is an act of bank- ruptcy (w). The exception of a pension which would not pass to the assignee, is not substantial {x). In estimating whether a bill of sale comprises the whole of a trader's property, the value of his book debts is to be taken into account {y). A mortgage of a moiety of all the goods is not per se void («). It is sufficient if the trader is left in possession of sufficient materials to carry.on his trade (a). If the mortgage passes all the stock in trade, so that the trader cannot carry on his business, it is held void, although the trader had other property besides his stock in trade (6). (o) Exp. iMckes, 26 L. T. N. S. 113 ; 20 W. E. 403 ; 41 L. J. Bky. 21 ; Be Wood, 7 Ch. 302. {p) Sect. 6, par. 1. (S) Robs. .Bkty. 117, ed. 2 ; and 124, ed. 3. (r) Idndon v. Sharp, 6 Man. & G. 895 ; 7 Scott's N. E. 730 ; £3^. Blcmd, 6 De G. M. & G. 761 ; Hxp. Lewis, 31 L. J. Bk. 11, L. J. ; The Oriental M. Co. V. Coleman, 3 Gifif. 11 ; Graham v. Clwipman, 12 C. B. 85. (a) Be Wood, 7 Ch. 302 ; 41 L. J. Bky. 21 ;. ^Kp. Trevor, 1 Ch. D. ,297, V. C. Bacon. (<) Sierbert v. Spooner, 1 M. & W. 71s ; ray. Bland, sup.; Smith v. Timms 7 Jur. N. S, 1015, affirmed 9 i6.1285 ; fVoodhoiise v. Murray, 2 L. E. Q. B. '638 ; affirmed i ib. 27 ; Exp. FoxUy, 3 Ch. 515. (m) Young v. Fleteher, 3 H. & C. 732 ; 34 L. J. Exc. 154 ; 11 Jur. N. S. 449. (k) Exp. Hawker, 7 Ch. 214 ; 41 L. J. Bky. 34. (y) Exp. Burton, 13 Ch. D. 102, C.A. («) Young v. Wavd, 8 Exc. 221. (a) Johnson v. Fesemeyer, 3 De G. & Jo. 13, affirming 26 Beav. 81 ; Goodrieke V. Taylor, 2 De G. Jo. & Sm. 135; 10 Jur. N. S. 414 ; affirming 2 H. & M. 380 ; Smith v. Cannan, 2 E. & B. 35. (ft) Young v. Fletohm; sup. Digitized by Microsoft® Sbot. 1. MQETGAGES OF ALL A MAN'S PROPERTY. 539 The mortgage of all the property is void whatever the motives of Motives im- the parties may be (c). And the principle of these cases applies ™*'*'"*^- whether the mortgagor be a trader or a non-trader (d), and re- enacted, with some variation of language, in the present law. By sect. 6, par. 1, of B. A., 1869, it is declared to be an act of B. A., 1869, bankruptcy if any debtor has in England or elsewhere made a con- ^°° * '^'"' veyance or assignment of his property to trustees for the benefit of his creditors generally ; and (by par. 2) if the debtor has, in Eng- land or elsewhere, made a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof. But the act of bankruptcy on which the adjudication is grounded must have oc- curred within six months before the presentation of the petition for adjudication (e). The meaning of the word ' fraudulent ' has not been altered, but Fraudulent, the words ' with intent to defeat or delay creditors ' in former acts (/), have been left out as superfluous and misleading (g). As to the effect of acts of alien traders abroad, see (h). ^P EnglanU or elsewhere. A mortgage of all a trader's property to secure a present advance, Present or or present and future advances, or future advances bond fide made fi*"™^^- ^ ' -I vances. to enable him to carry on his business, is not an act of bankruptcy if the mortgagor obtains at the time the full benefit of the advance. There must be an equivalent (i) ; but, if the security is for a present substantial advance, it is not necessary that the full value of the property should be advanced (fc) ; a small fresh advance however Small fresh is strong evidence that the principal object was not to enable the bankrupt to continue his trade, but to secure the past debt (J). A mortgage of all the property to secure a past debt and further advances, is good (m) ; also, if there is a contemporaneous parol agreement for further advances which are made afterwards, although the deed contains no covenant to make such advances (n). (c) Exp. Ellis, 2 Ch. D. 797, C. A. ; v. Ridxtt, 4 H. & IT. 1 ; notwithstand- 45 L. J. Bky. 159. ing Exp. Sparrow, 2 De G. M. & 6. (rf) Re Wood, sup. ; Exp. Lwkes, sup. ; 907. Eap. Sawhcr, sup. {k) Bittlestoney. Cooke, sup. ; Allen y. (e) B. A., 1869, s. 6. Bonnett, 5 Ch. 577. (/) B. A., 1849, 3. 67. (I) Exp. Fisher, 7 ib. 644; 41 L. J. {g) Re Wood, sup. And see Exp. MVy. 6i; Exp. Ellis, sup. And see .£5rp. Hawker, sup. Winder, 1 Ch. D. 290, C. J. Bacon; Exp. (h) Exp. Crispin, 8 Ch. 374 ; 42 L. J. Greener, 46 L. J. Ch. 76. Bky. 65. (™) ^P- Sheen, 1 Ch. D. 560, C. A. ; (i) Button v. CnMwell, 1 E. & B. 15 ; affirming Exp. Winder, sup. Bittlesione v. Cooke, 6 ih. 296 ; Harris (n) Exp. Winder, siip. Digitized by Microsoft® 640 PEAUDULENT AND VOID MORTGAGES. Chap. 49. Agreement for futare bill of sale. Pa«t debt also secared. The fact that further advances are afterwards made, but without any undertaking to make them, is not sufficient (o). Where, upon an advance, an agreement is made for a bill of sale at a subsequent period, the bill of sale will be treated as having been executed at the date of the agreement (p), unless the giving of the bill of sale is purposely postponed till the situation of the trader is hopeless, or where the bill of sale is not to be given "until the lender has lost confidence in the borrower" or " until the lender requires it " (g') ; but in such case, the promise to give the future bill of sale to be effectual must be absolute (r) ; and the onus probandi is upon the person who sets up the prior agree- ment to prove, not only that the agreement did exist in fact, but that it was in all respects a bond fide agreement (s), and there must be a very clear explanation why the giving of the bill of sale was delayed (t), and the device of renewing the bill of sale from time to time will not avail (w). A bond fide security for a present advance will not be invalidated by its also extending to secure an antecedent debt (x), or by the borrower applying the money in payment of existing debts (y), or •by the money being advanced by the lender in discharge of debts of the borrower at his request (z). Such a security will be valid if the advance is made bond fide to enable the debtor to meet his engagements, and, if a trader, to carry on his business (a) ; but a stipulation by the banker, the lender, that no future advances would be made until the balance was reduced to a certain amount invalidated the deed (&). (o) Mp. Cooper, 10 Ch. D. 313, C. A. {p) Mercer v. Peterson, 2 L. R. Exc. 304 ; affirmed 3 ib. 104 ; Jones v. JTar- ber, 6 L, B. Q. B. 77 ; JEsq>. Imi\d, 9 Ch. 271 ; JE'ap. Eodghin, 20 Eq. 746, V. 0. Bacon ; Re Jackson, 4 Ch. D. 682, v. C. Bacon. (q) Exip. King, 2 ». 256, C. A. ; Exp. Burton, 13 ib. 102, 0. A. ; Exp. Kilner, ib. 245, C. A. (r) Exp. Fisher, 7 Ch. 644 ; 41 L. J. Bky. 62. {s) Exp. Kilner, sup. (0 lb. («) Exp. Cohen, 1 Ch. 20 ; Exp. Stevens, 20 Eq. 786, V. C. Bacon ; but see re Jadcson, sup. And see sup. p. 476. (x) Pennell v. Beynolds, 11 C. B. N. S. 709, 722 ; Shrubsole v. Sussams, 16 C. B. N. S. 452 ; Lomax v. Buxton, 6 L. R. C. P. 107 ; notwithstanding Laeon v. Uffen, 4 Gi£f. 75 ; 9 Jur. N. S. 13 ; affirmed ib. ill ; 11 W. R. 474; Graham V. Chapman, 12 C. B. 85, is a peculiar case ; 6 L. E. C. P. 113, 115. See Robs. Bk. 122, ed. 2, and 129, ed. 3. (tj) Be Colemere, 1 Ch. 128. (2) Whitmore v. Glaridge, 8 Jur. N. S. 1059, Q. B. ; 10 W. R. 693 ; 31 L. J. Q. B. in ; 3 N. R. 210 ; 12 W. R. 214 ; 33 L. J. Q. B. 87 ; MuUon v. CrvMwell, 1 E. & B. 15. (a) Bell V. Simpson, 2 H: & N. 410 ; 26 L. J. Exc. 363 ; Whitmore v. Dowling, 2 F. & F. 134 ; Pennell v. Dawson, 18 C. B. 355 ; Allen v, Bonndt, 5 Ch. 577 ; 18 W. R. 874 ; Exp. Fisher, sup. (J) La£on V. Liffen, sup. Digitized by Microsoft® Sect. 1. MOETGAGES Of ALL A MAN'S PROPEHtY. 54I An assignment of a man's whole property is also void if by way of indemnity or as a surety, where the debtor's estate gets no equivalent (c), and the giving of further time to the debtor may be a sufficient fresh consideration to render the conveyance valid (d). An assignment, under pressure, of the bulk, with a substantial Effect of exception, of a trader's effects on trust for certain creditors, wiU not, p"^^^^"™' in the absence of fraud, be an act of bankruptcy (e), unless the necessary effect of enforcing the deed would be to stop the trader's business and to defraud his creditors, and the assignee is aware of that consequence (/). If, however, the effect of the mortgage of the property by the debtor is to stop the trade within the above principles, or the transaction is fraudulent in its inception, no amount of pressure by the creditor will save the deed (;. Mortgage, B. ; Harrison v. Hart, 2 Eij. Digitized by Microsoft® Sect. 9. PLEDGE OF NEGOCIABLE SECUEITIES. 585 the pledge, but is bound to collect it, and apply tbe proceeds to his own debt, and it is his duty to use all due diligence to collect such notes or he -will be liable (s). If the pledge is of mere current coin or of a negociable security, capable in its nature of passing by delivery, there, if the pledgee sells it to a bond fde purchaser without notice, the latter acquires an absolute property in the pledge {t) ; but if a negociable note or ^^ *™'^' other security contains on it any intimation that it belongs to, or that it is for the use or benefit of, another, as if the words ' as trustee,' were on it ; then it is incapable of being pledged for the use of the holder {u). The rule seems confined to negociable securities for money and not to apply to bills of lading {x). (10.) Transfer of pledge. The pawnee may by the common law deliver over the pawn into the hands of a stranger for safe custody without consideration, or he may sell or assign all his interest in the pawn, or he may convey the same interest conditionally by way of pawn to another person, without in either case destroying or invalidating his security {y). The pledgee may transfer his pledge to his own creditor, who may hold it until the debt of the original owner is discharged {z). If the pawnor, in consequence of any default or conversion by the Conversion by pawnee, pawnee, has by an action recovered the value of the pawn, still the debt remains and is recoverable, unless in such prior action it has been deducted {a). It seems that by the common law the pawnee in such an action brought for the tort has a right to have the amount of his debt recouped in the damages (&). Therefore, where upon non-payment on a certain day the pledgee was em- powered to sell, but sold before and delivered upon that day, although it was held to be a wrongful conversion, the interest (s) lb. But seo Miller v. Race, 1 East, 38 ; Quieros v. Trueman, 3 B. & Burr. 452 ; GrmU v. Vaughan, 3 ib. C. 342. 1516 ; Wookey v. Pole, 4 B. & Aid. 1. {y) EtdcUff v. Davis, mp. ; Mores v. (<) Story, Bailm. s. 322, ed. 8. Conham, Owen, 123. {u) TrevMel v. Sarandm, 8 Taunt. («) Story, Bailm. s. 327. See Donald 100 ; Sigoumey v. Llm/d, 8 B. & C. 622; v. Sttckling, 1 L. K. Q. B. 588. 5 Bing. 525 ; 3 Y. & J. 220 ; Walker v. (a) BtUcliff v. Davis, sup. ; Bac. Abr. Taylor, 4 L. T. N. S. 845. Bailment, B. (x) Newsom, v. Thornton, 6 East, 17 ; (6) Johnstone v. Stear, 15 C. B. K. S. Martini v. Coles, 1 M. & S. 140 ; ShipUy 336 ; 10 Jiir. N. S. 99 ; Brierly v. Ken- V. Kymer, ib. 484; Pickering v. Btcsk, 15 dall, 17 Q. B. 937. Digitized by Microsoft® 686 PLEDGES OR PAWNS. Chap. 52. of the pledgee in the property was considered not to have been destroyed, and as it appeared that the pledgor never intended to redeem his right to damages, was treated as only nominal, and as if he had sued on a breach of contract for not keeping the pledge till the day fixed (c). And again, where the pawnee had repledged for a larger sum than was due to him on the original pawn, it was held that the first pawnor could not bring detinue against the second pawnee without tendering the amount due to the first pawnee (d). The mere refusal to re-deliver the pledge to the pawnor is, how- ever, not a conversion. It is for the jury to say whether the holder intended to apply it to his own use, to assert the title of a third person, or only to ascertain the true ownership, and in the latter case whether a reasonable time had elapsed for that purpose (e). If the pledgor be not the true owner of the chattel, and have no special property in it which he may assert against the true owner, the pawnee may deliver the chattel to the latter (/) ; being, how- ever, answerable in damages, though they may be only nominal, if he have absolutely contracted to redeliver it to the pawnor (g). Or if the pawnor held the chattel merely as a pledge from the true owner, the second pawnee may discharge himself by delivering it to his own pawnor at any time before an offer by the true owner to redeem (/i). (11.) Distress and execution. In cases of executions against private persons, a creditor of the pawnor cannot take the pledge from the pawnee without first dis- charging the pawnee's claim, or otherwise extinguishing his title (i). It is said that if A. gage goods to B, and afterwards A. is attainted of felony, the King shall not have the goods thus gaged without payment of the sum for which they were gaged, for his prerogative shall never prejudice another ; and again, if the pawnor (c) Fish Mtg. 18, ed. 3 ; Johnstone v. (e) Faughan v. Watt, 6 M. & W. Stmr, 15 C. B. N. S. 336 ; 10 Jur. N. S. 492. 99 ; Donald r. Suckling, 1 L. E. Q. B. (/) Storj-, Bailm. s. 340. 585 ; 7 B. & S. 783 ; Halliday v. Holgate, {g) Per Pollock, C. B. in C/iecseman v. 3 L. R. Exo. 299. See Chinery v. Viall, Mall, 6 Exo. 341. 5 H. & N. 288 ; Srierly v. Kendall, 17 {h) FrankUn v. NecnU, 13 M, & "W, Q. B. 937 ; Story, Bailm. s. 315. 481. [d) Donald v, Swkling, sup. (i) Story, Bailm. s. 3S3. Digitized by Microsoft® Sect. 11. . DISTEESS AND EXECUTION. 597 be utlagatus, the King shall not have the goods before the party be satisfied (Ji). But the right of the Crown is good against the pledgee as to duties for which the pledgor was responsible at the date of the pledge (Z). As to the right of distress or execution against the pawn in the Protection hands of the pawnee for his own debt, the pawn is protected in the ^™™ ^^^ case ot a proiessionai pawnoroKer, upon tne principle generally applicable to goods intrusted to persons who carry on a public trade, and who manage and deal with goods in the way of their trade (m) ; as well as because the pawnee is bound to restore the pledge upon redemption, which appears to be a sufl&cient ground for protection in the case of a general pawn. The protection of the pledge from distress is probably of great antiquity (n). (12.) Use of pledge. 1. If the pawn is of such a nature that the due preservation of it requires some use, such use is not only justifiable, but it is in- dispensable to the faithful discharge of the duty of the pawnee (0). 2. If the pawn is of such a nature that it will be worse for the use, such, for instance, as the wearing of clothes deposited, then the use is prohibited to the pawnee (p). 3. If the pawn is of such a nature that the keeping is a charge to the pawnee, as if it is a cow or a horse, there the pawnee may milk the cow and use the milk and ride the horse, by way of recompence (as it is said) for the keeping {q). 4. If the use will be beneficial to the pawn, or it is indifi'erent, it seems that the pawnee may use it as in the case of dogs and books (r). 6. If the use will not cause injury, and yet the pawn will thereby be exposed to extraordinary perils, then the use is impliedly interdicted (s). The law requires that the pawnee should use ordinary diligence (k) Nichols V. i\^. Plowd. 477, per Ld. Eaym. 909, 916 ; Jones, Bailm. 81. Harper, J. ; Vin. Abr. Pawn ; Waller v. (j) Jb. See £agsJiav;e v. Goward or Hanger, 3 Bulst. 17. Gawin, Cro. Jac. 147 ; Noy, 119 ; Dun- {l) AU. Gen. v. Trueman, 11 M. &"\V. combv. Reeve, Cro. Eliz. 783 ; Roll. Abr. 694. 673, P. pi. 8 ; 9 Yin. Abr. Distr. P. pi. (m) Swire v. Leach, 18 C. B. N. S. 8 ; Com. Dig. Distr.D. 6 ; Chamlerlayn' s 479 ; 11 Jur. N. S. 179. Case, 1 Leon, 220; Mores y. Conham, (n) Manwood, 103, s. 14. Owen, 123-4 ; Bae. Abr. Distr. D. (0) Jones, Bailm. 81. (r) Jones, Bailm. 81. (p) 2 Sulk, 522 ; Coggs v, Bernard, 2 («) Story, Bailm, s. 330 ; Joues, Digitized by Microsoft® 588 PLEDGES OB PAWNS. Chap. 52. in the case of the pawn (i). If the goods pawned are lost after tender, then the pawnee keeping them wrongfully must be answer- able for them at all events (u) ; but in case of theft, if it be occasioned by negligence, the pawnee is responsible, if without negligence, he is discharged (x). The lien is gone if the pledgee lose or dispose of the article pledged {xx). (13.) The Paivnbokers Act. The Pawnbrokers Act (y) applies to every loan by a pawnbroker of 40s., or except as is otherwise provided in relation to cases of special contract under the act (s), to every loan of above 40s., and not above 101. (a). In advances above 101., a pawnbroker has the same benefit of the abolishment of the laws of usury as any other person (&). The act requires entries to be made, and a pawn- ticket and duplicate to be delivered, but neither the ticket nor the • duplicate is subject to stamp duty (c). The act is not applicable where the loan exceeds 101. (d), and therefore a person colourably advancing' sums each less than lOZ., with a view of protecting advance of 200Z., could not avail himself of that statute (e). Pawnbroker If the pawnbroker does not comply with the provisions of the not complving , , . , . . , . , . with act. 8'Ct, he acquires no property m nor can mamtam a hen on the goods which may be recovered in an action, and the contract is void (/). The requisites under the act are a condition precedent to the legality of the loan, though penalties are attached to the omis- sion of them (g). The case_ of the pawnbroker where the contract itself is void, is different from that of a loan or mortgage of a ship, without reciting the certificate of registry, and from that of a loan on the security of an ecclesiastical benefice, in which cases the lender may recover on the contract, though the security is void (h). Bailm. 81 ; Mores v. Conham, Oweii,123 ; (6) Fitch v. Rochfort, 13 Jur. 351, Ch. Bull. N. P. 72 ; Aiion, 2 Salk. 522 ; (c) 35 & 36 Vict. o. 93, s. 24. Goggs v. Bernard, 2 Ld. Eaym. 916-7. (d) Pmnell v. Attenborough, i Q. B. {t) Story, Bailm. s. 332; Coggs v. 868. Bernard, sup.; Jones, Bailm. 75, 83; (e) Trrgtmning y. Attenborough, 7 BiTig. Vere v. Smith, 1 Vent. 121. 97. (m) Coggs v. Bernard, sup. ; Southcote's (/) Fergusson v. Norman, 5 Bing. Case, i Kep. S3, h. N. C. 76. And see Cope r. Eowlands, 2 {x) Story, Bailm. s. 338. M. & W. 149 ; and Atten3>orowgh v. Lon- (ra) Cooke v. Haddon, 3 F. & F. 229. don, 17 Jur. 416 C. P. (y) 35 & 36 Vict. c. 93. (g) Jb. (a) /J. s. 24. (h) Kerrison v. Cole, 8. East, 231; (a) lb. s. 10. Moiiys v. Lealce, 8 T. E, 411. Digitized by Microsoft® Sect. 13. THE PAWNBROKERS ACT. 589 A pawnbroker has no defence against the real owner of a pawned No defence v. article. ^^^ '"™*'^- By s. 27 of the Pawnbrokers Act, 1872, where a pledge is Liability of destroyed or damaged by or in consequence of fire, the pawnbroker fn^''e™f fire is nevertheless liable on application, within the period during which the pledge would have been redeemable, to pay the value of the pledge after deducting the amount of the loan and profit, such value to be the amount of the loan and profit and twenty-five per cent, on the amount of the loan, and a pawnbroker shall be entitled to insure to the extent of the value so estimated. By the 28th sect, thereof, if a person, entitled and offering to Compensation for deprecia- redeem a pledge, shews to the satisfaction of a Court of summary tion of pledge. jurisdiction that the pledge has become or has been rendered of less value than it was at the time of the pawning thereof by or through the default, neglect, or wilful misbehaviour of the pawn- broker, the Court may, if it thinks fit, award a reasonable satisfac- tion to the owner of the pledge in respect of the damage, and the amount awarded shall be deducted from the amount payable to the pawnbroker, or shall be paid by the pawnbroker (as the case requires) in such manner as the Court directs. Digitized by Microsoft® CHAPTER LIII. MOETGAGES OF STOCK. Stocks are SiK WiLLiAM Geant, when M. E., justly remarked, tliab public annuitka. stocks or funds are, in fact, perpetual annuities granted for ever redeemable by the public. They are a mere right ; and the circum- stance that government is the debtor makes no difference. They constitute a mere demand of dividends as they become due, having no resemblance to a chattel moveable or coin-money capable of possession and manual apprehension. He there determined that if stock be transferred into the name of a married woman, and her Eed.notion into husband die in her lifetime, without having accepted the stock in possession. ^-^^ bank, books, or otherwise reduced it into possession, the stock will survive to the wife, although the husband and wife should in his lifetime have signed partial transfers of the stock (a). In another case (&) the M. E. remarked, there was a very un- technical expression used with regard to stock ; there is literally no such thing as one hundred pounds stock : knowing, however, that in common parlance, people, speaking of stock, will so express themselves, the Court will apply it. Loan of stock Public stock may become the sulked of loan, or it may be of itself lawful. jj^g security for the repayment of money. A loan of stock is lawful, notwithstanding 7 Geo. 2, c. 8, s. 8, the Stock- Jobbing Act (c) ; and the parties may agree that a sum of money equal to the dividends shall be paid in the mean time, although the dividends shall exceed 51. per cent, on the money produced by the sale of the stock ; for the lender takes the hazard of the rise and fall of the market price ; and if an action is brought on a bond given as a security for the transfer of stock, in estimating the measure of damages, the lender will be entitled to recover the highest value of the stock on the day of trial {d) ; and if a bonus has been declared on the stock, the lender will have a right to insist on the replacement of the original stock increased by the amount of (a) Wildham v. W. 9 Ves. 174. (c) Sanders v. Keniish, 8 T. E, 162. (J) Ki/rhy v. Potter, 4 %b. 761. {.d) Shepherd v, Johnson, 2 East, 211, Digitized by Microsoft® MORTGAGES OP STOCK. ggj bonus, and to dividends in the meanwhile on the bonus as well as on the stock (e). So a bond fide contract for the transfer of stock is good, though the transferor is not possessed of it at the time of the agreement (/). It is not material whether the stock is actually transferred to the mortgagor, or whether the stock is sold out, and the net produce paid to him (). (2.) Keeping alive chwrge when paid off. In order to give a party paying off a charge the benefit of the incumbrance as against other incumbrancers, the charge must be kept alive, otherwise the Court cannot give relief. Thus in a case in which a person having become the purchaser of an estate which was subject to two mortgages, nine years afterwards paid off the (Jc) Hxp. Christie, Mont. & Bl. 352. (J) 2 Dav. Con. 1140, ed. 3. (to) Bell V. Banks, 3 Man. & G. 258. (m.) Norfolk R. Co. v. McNamwra, 3 Exc. 628 ; Ansell v. Baker, 15 Q. B. 20 ; Sharpe v. Gihls, 16 C. B. N. S. 627 ; BoaUr v. Mayor, 11 Jur. N. S. 565. (o) Emopean Central B. Co., 4 Ch D. 33, C. A. {p) Exp. Suglm, %b. 34, note, L. J. Digitized by Microsoft® Sect. 2. KEEPING ALIVE CHARGE WHEN PAID OFF. 645 first mortgage, and took a conveyance of the legal estate from the Pnrohaser first mortgagee to a trustee for himself ; and by deed of even date, he ^^^ "f *"* and his trustee, in consideration of a sum of money, part of which was applied in discharge of the first mortgage, granted an annuity to a party who had constructive notice of the second mortgage, it was decided, that the second mortgagee had become the first incumbrancer (q). Similarly if the first mortgagee with notice of the second mortgage First mort- purchase the equity of redemptioUj the second mortgage becomes f^hig aie the first charge on the estate (r), and generally where the prior ^1^'*?°? incumbrancer purchases the fee, or the owner of the fee purchases the prior incumbrance, the merger has the effect of letting in an intermediate incumbrancer, often contrary to the intention. So where an incumbrancer pays off arrears of head rent due on the estate, and afterwards purchases the inheritance (s), or a mort- gagee takes a conveyance of the equity of redemption in consideration of the debts due to himself and the other mortgagees whom he covenants to pay (t), the debt is prima facie merged.. An equitable mortgagee who purchased the inheritance, was bound to perform an agreement for a lease made with the mortgagor with notice of the mortgage on the ground of merger («). An intention to preserve the charge has been inferred from an assign- ment to the new mortgagee in as full and beneficial a manner as the first mortgagee could have held it (x). The principle of Toulmin v. Steer (y) has been adopted or recog- Tmlmin t. nized in many cases {z), but disapproved of in others (a). The principle may have to be reconsidered, but will certainly not be {q) Pwrry v. Wright, 1 Sim. & Stu. (x) Phillips v. Gutteridge, 4 De G. & 369, affirmed 5 Buss. 142 ; Searle v. J. 531 ; and see 7rby v. /. 25 Beav. Colt, 1 Y. & C. C. C. 36 ; And see Tml- 632. min V. Steere, 3 Mer. 210 ; Bmen v. (y) 3 Mer. 210. Stead, 5 Sim. 535; SmUh v. Philips, {z) Cfreswold y. Marsham, sup. ; Mocatta 1 Keen, 694 ; Farrow v. Bees, 4 Beav. v. Mva-gcUroyd, 1 P. Wms. 393 ; Gamett 18; and see Allen v. Knight, thougli v. Armstrong, sup.; Squire v. Ford, not decided on that ground, 5 Hare, 9 Ha. 60 ; Chesshyre v. Biss, 2 Giff. 272. 287 ; Wilkins v. Sibley, 4 ib. 448. (r) Oreswold v. Marsham, 2 Ch. Ca. (a) Gregg v. Amott, LI. & 6. t. Sugd. 170 ; Toulmin v. Steere, sup.; Parry y. 251 ; Watts v. Symes, 1 De G. M. & G. WrigJU, sup. ; Mackenzie v. Gordon, 6 240, reversing 16 Sim. 643 ; Otter v. Zd. CI. & F. 883. Vaux, 6 De G. M. & G. 643 ; Phillips (s) Gamett v. Armstrong, 4 Dr. & W. v. Gutteridge, sup. ; Hayden y. Kirk- 182. patnck, 34 Beav. 645 ; 11 Jur. N. S. {t) Brown v. Stead, sup. 836 ; Andersen y. Pignet, 8 Ch. 187. {u) Smith V. Phillips, sup. See 5 Buss. 148. Digitized by Microsoft® 646 MEEGEE OF SECUEITIES. Chap. 56. Principle will, extended (6). The question is one of intention, and very slight ex- tended.^^" pressions will be sufftcient to keep alive the security, and corres- pondence at the time is admissible to explain the intention (c). Care however should always be taken to keep alive the prior in- cumbrance by express declaration. But the refusal of the first mortgagee, after being paid off, to execute an assignment of the mortgaged premises, as he had agreed to do, to the party paying off such charge, will of course not prejudice such party {d). In the case last referred to, however, the Court refused to direct an assignment to be made of the legal estate to the party paying off the debt without the consent of the second mort- gagee ; and it seems to have been held, that such subsequent incumbrancer was a necessary party to a bill to enforce an assign- . ment (e). And yet the agreement would seem to give the party paying off the mortgage a right to the legal estate, even though the second mortgagee might be a necessary party to the suit. The circumstances of the case were, however, peculiar. We have already noticed a case in which a receiver making voluntary payments out of his own monies on account of a charge on the estate, in expectation of coming rents, but without taking an assignment of the charge, it was held at law that the owner of the estate was entitled to the benefit of such payments (/). (3.) Mortgagee becoming mortgagor. Where wife and husband mortgaged her inheritance for her debt, and the mortgagee become the heir of the wife, the debt was dis- charged (g). (4.) Merger as between representatives. We shall now consider the question of the necessity of keeping charges alive, and as to what will amount to the merger of a charge on land, as between the real and personal representatives of tenant in fee simple, and between the executors or administrators of tenant (5) Stevens v. Mid-Eants S. Co., 8 Ch. 151. 1069. (/) Williamsonv. Gould, 1 Bing. 171 ; (c) Adams v. Angell, 5 Ch. D. 634. . Carroll v. Goold, ib. 190. {d) Banks v. Whittal, 17 L. J. Ch. {g) Gee v. Smart, 3 Jur. N. S. 1056, 14 ; on appeal, ib. 352. Q. .B. (c) Tb. ; Shepherd v. Gwinnet, 3 Sw, Digitized by Microsoft® Sect. 4. MERGER AS BETWEEN REPRESENTATIVES. 647 for life and the remainderman, and between the executors or administrators of tenant in tail and his issue. If a tenant in fee simple or fee tail pay off a charge on the estate, the payment is prima facie presumed to he for the benefit of the estate. If a tenant for life pays off such a charge, he is vrimd facie Payment by tenant for life. entitled to that charge for his own benefit, because of the scantiness of his estate, and be wiU not be supposed to discharge a debt on another man's estate Qi), but in either case the presumption maybe rebutted by evidence to the contrary {i). And there is no difference in this respect between a charge merely equitable and one that is supported by an outstanding legal estate, nor will an assignment in trust for the party paying it off of itself prevent a merger (fc), though it serves as some evidence of an intent to do so (Z). There is no obligation on the tenant for life to declare his inten- Onus on tion to keep the charge alive, and the onus lies on those who claim ^ '"°' to have the estate exonerated, but it has been said that the smallest demonstration of intention will suffice (m). Where a tenant for life pays succession duty on a reversionary Paying puc- interest settled and falling in, he has a charge on the capital unless the circumstances shew that a gift was intended {n). If a devisee tenant for life pays off a bond debt, there is no pre- Bond paid off. sumption that the debt was kept alive for his benefit (o). Where the tenant for life mortgages subject to a prior charge on the inheritance which he afterwards pays off and procures to be assigned to himself, he has a right to hold the charge so paid off' in priority to his own mortgage (p). Where tenant for life pays off a charge, but is not absolutely Charge paid oif entitled to the estate tiU his death, as if there be contingent ui-Xnonly remainders to his issue between his life estate and reversion, the ^t^f/^t*his charge, it seems, is kept alive for the benefit of his personal death, estate {q). (A) Jones v. Morgan, 1 Bro. C. C. but see Swdbey v. S. 15 ib. 106. 217 : Faulkner v. Daniel, 3 Ha. 199 ; {I) Sood v. Phillips, sup. Jarmson r. Stein, 21 Beav. 5 ; Cole v. (m) JBurrell v. JSarl of Sgremont, sup. Stutely, 6 Jur. 314. («) Cuddon v. C. i Ch. D. 583, M. R. (i) Per Lord Eldon in Earl of Buck- (o) Morleij v. M. 5 De G. M. & G. inghamshire v. Hobart, 3 Sw. 186, 199 ; 610. and see Burrell v. jM-d Egremord, 1 (p) Sarman v. Forster, 1 Dr. & Wal. Beav. 205 ; Sood v. Phillips, 8 ib. 637. 513 ; Lord Kensington v. Bouverie, 7 De (q) IFyndham v. Earl of Egrerrumt, G. M. & G. 134 ; 1 Jur. N. S. 577 ; PM Anib. 753 ; Trmor v. T. 2 My. & K. V. P. 22 Beav. 294. 675. • {h) JstUy V. Milles, 1 Sim. 341, 344 : Digitized by Microsoft® 648 MEEGER OF SECTJEITIES. CsAp. 56. Judgment creditor of tenant for life. Payment by tenant in tail. In remainder. Infant tenant in tail. If a tenant for life paying off an incumbrance has a charge against the inheritance, a judgment creditor of the tenant for life has a right to stand in his place to that extent against the inherit- ance (r). If a tenant for life of two estates, subject to distinct mortgages, suffers the interest of one to fall in arrear, and the mortgagee of the other enters into possession, and by surplus rents pays oft part of the principal, the tenant for life cannot claim a charge for such surplus on the inheritance without payment of the interest in arrear of the other ; and a judgment creditor of the tenant for life is subject to the same liabilities as the tenant for life, if at the time of the registration of his judgment no surplus rents had been received (s). Where the tenant in tail in possession pays off a charge, the merger takes place on the ground that he can, at his own pleasure, . acquire the absolute fee (t), and accordingly it has been held that the merger does not take place where the party paying off the charge is entitled only in remainder (tt), or holds subject to an executory devise over (x), or is tenant in tail by gift of tlie crown and unable by act of Parliament to bar the entail (y). Where the tenant in tail in remainder becomes entitled, under a will or otherwise, and without any act on his pa/rt, to a charge on the estate, upon devolution of the estate upon him a merger takes place, unless there is an intention shewn to the contrary (z). If a tenant in tail entitled to a charge on the estate is an infant, the charge is not merged if he dies under twenty-one, as well upon other grounds as upon the principle that until that age he cannot gain the absolute property in the land (a) ; and the latter principle seems to apply to the case of a lunatic tenant in tail, though it is otherwise in the case of a lunatic tenant in fee (b). Where a tenant in tail of two estates subject to a shifting use to another brother redeems the land tax on both estates with money (r) Dolphin v. Aylward, i L. E. H. L. ■486. (a) Seholefieldy. Lockwood, 4 De G. Jo. & Sm. 22 ; 9 Jur. N. S. 1258 ; 32 Beav. 439. (<) Jones V. Morgam, 1 Bro. C. C. 217; Ware v. Polhill, 11 Ves. 277 ; Kirkham v. Smith, 1 Ves. S. 257 ; Smith v. Frederick, 1 Rusa. 208; St. Paul v. Dudley, 15 Ves. 173 ; Horton v. Smith, 4 K. & J. 624, 627. (m)- Wigsell v. ^. 2 S. & S. 364; Horton v. Smith, sup. (k) Drinkwaierr. Goombe, 2 S. &S. 340. {y) Countess of Shrewsbury v. Earl of Shrewsbury, 3 Bro. C. C. 120. (a) Horton v. Smith, sup. (a) Thomas v. Kemeys, 2 Vern. 348 ; Smith v. Frederick, sup.; Duke of Ohandos V. Talbot, 2 P. Wms. 604 ; Seys v. Price, 1 Barn. 117 ; 9 Mod. 217 ; cited 1 Euss. 197 ; and Wigsell v. Wigsell, sup. (b) Lord Compton v. Oxenden, 2 Ves. J. 261 ; 4 Bro. C. C. 306, Digitized by Microsoft® Sect. 4. MERGER AS BETWEEN REPRESENTATIVES, 649 produced by the sale of part of one of them, upon the latter estate shifting there was no lien upon it for an apportioned part of the land tax; once being merged, it could not be brought back(c). If a party seised of the inheritance in fee simple is also entitled Payment by to a charge upon it, the charge will be extinguished unless he does some act for keeping it on foot (rf), or rebut the presumption by some other direct expression of intention (e) ; but there can be no evidence of intention until the time when the charge would, but for a contrary intention, have become united with the estate (/), or unless it is plainly for his interest that it should be kept on foot (g), as if there be a subsequent incumbrance, or a charge of debts and legacies under the will of a former owner (h). If it is Whenpre- indifferent to his interests whether the charge should or should mergerTrisea. not subsist, a presumption of merger arises (i). The owner in fee, on paying off the charge, may declare that Declaration of "^ " intention, it shall continue for the benefit of his personal estate (k) ; but, notwithstanding a declaration of trust was executed of the charge for the owner in fee, it was held, under the circumstances, to be merged (Z) ; but where a person so entitled sells the estate free from incumbrances, he is estopped to say that there was no merger (m). The merger takes place whether the union is of a legal or equitable charge with the inheritance (w). In Knight v. Frampton (o), where A. having an equitable fee in one moiety of an estate, paid off a mortgage of the entirety that had been created by B., who held the estate in trust for himself (c) Sarrison v Jiound, 2 De G. M. & {g) G'wiUim v. Holland, cited 18 Ves. G. 190 ; 17 Jur. 563. 393; Chester y. JVilles, Amh. 246. {d) Tyler v. Lake, i Sim. 53 ; Lord (h) Forbes v. Moffait, 18 Ves. 384 ; Compton V. Oxenden, sup. ; Jones v. Lord Clarendon v. Barham, 1 Y. & C. C. Morgan, 1 Bro. C. C. 206 ; and see C. 688 ; 6 Jur. 962 ; Varcy v. Hall, 1 Aldridge v. Westbrook, 5 Beav. 188; Veru. 49; Davis v. Barrett, 14 Beav. Smith V. Phillips, 1 Keen, 694 ; lord 542 ; Bayly v. Wilkins, 3 J. & Lat. 630 ; V. Lord Lake, 1 Beav. 146; Grice v. Shaw, 10 Ua. 176 ; Tyrwhittv. Farrow v. Sees, 4 ib. 18 ; Duke of T. sup. Chandos v. Talbot, sup. ; Swabey v. S. (i) Svnnfen v. S. 29 Beav. 199 ; 7 Jur. 15 Sim. 106. Q;ucere, however, the con- N. S. 89 ; Allen v. Aldridge, 6 Jur. struction of the case in 4 Simons, which 183. gave the owner of the undivided moiety (Jc) Jameson v. Stein, 21 Beav. 5. subject to the charge the sole benefit of {I) Pitt v. P. 22 Beav. 494 ; 2 Jur. the charge. Hatch v. Skelton, 20 Beav. N. S. 1010. 453 ; Pears v. WeigJUmMn, 2 Jur. N. S. (m) Bulkeley v. Hope, 1 K. & J. 482 ; 586 ; Medley v. Horton, 14 Sim. 226. 1 Jur. N. S. 864. (e) Bailey v. Richardson, 9 Ha. 734. {n) Astley v. Millcs, 1 Sim. 298 ; (/) Tyrwhitt v. T. 32 Beav. 244 ; 9 Goivcr v. G. 1 Cox, 53 : Wyndham v. Jur. N. S. 346 ; 32 L. J. Ch. 553 ; Wilkes Earl o/Egremont, Amb. 755. V. Collin, 8 Eq. 338, V. C. James. (o) 4 Beav. 10. Digitized by Microsoft® 650 MEEGEE OP SECUEITIES. Chap. 66. and A., and took the conveyance of the legal estate subject to the existing equity of redemption, it was held that there was not such an union in A. of the legal and equitable interest in his moiety as to entitle his wife to dower. In a case, where a lady was entitled to a charge upon her father's estate, to which she succeeded as heir, and then shewed an inten- tion to keep the charge alive, by taking a conveyance of the legal estate as mortgagee, and by charging an annuity on the estate and the mortgage, and then died ; it was held that the charge was part of the testatrix's personal estate, and as such Hable to probate and legacy duty, but was merged by the effect of her will, by which she charged the property in question with the payment of her debts, and the settlement of her father's affairs ; the V. C. said, " the sums secured by the mortgages were debts due from her father, and, therefore, they were debts which the testatrix directed to be paid. How can they be better paid than by releasing or merging them " (^) ? The reasoning in the above case does not,, however, appear very satisfactory, and one would suppose that it would lead to the contrary conclusion. Where in such case of union of the estate and charge in one person, the interest of the party himself, or of those claiming under him require it, the charge will clearly be kept alive (g'). In case of There is no equity in this respect as between the real and per- sonal representatives who must take as fortune has directed ; and accordingly in the case of a lunatic becoming entitled to a charge on his estate, .it was held, as between the heir and next of kin of the lunatic, that the charge was merged, though it would have been otherwise, if it had been more beneficial to the lunatic to keep the charge alive, as if wanted for the payment of debts (r). Where a lunatic was seised of Bl. a. ex parte paternd and of Wh. a., which was mortgaged ex parte maternd, and the produce of timber cut from Bl. a. was applied in discharge of the mortgage, it was held that Bl. a. should not be recouped (.s). It seems to have been considered by Lord St. Leonards (t), after an elaborate review of the authorities, that if the Court in the exercise of a prudent management ordered payment of the charge {p) Swahey v. S. 15 Sim. 106, 502. (s) Anon, cited by Lord Eldon inSxp. (q) Faulkner v. Daniel, 3 Ha. 199 ; Phillips, 19 Ves. 123. and see Forbes y. Mogai, 18 Ves. 384. («) Lord Ldtrim v. Enery, 6 Ir. Eq. (r) Lord Compton v. Oxenden, 2 Ves. 357 ; following Fxp. Grimstone, Amb. 261 ; 4 Bro. C. C. 306. 706 ; Ea^. Hinde, ib. n. Digitized by Microsoft® lunatics. Sect. 4, MERGER AS BETWEEN EEPEESENTATIVES. 651 out of the lunatic's property, by means of savings out of the real estate, the heir ought to hold free from the charge ; but where real estate, subject to a mortgage, descended upon a lunatic, and the mortgage was by an order in lunacy paid off out of the personalty, on the death of the lunatic the amount was directed to be raised out of the real estate, and paid to the administrator as per- sonalty (u). And in the case of an infant portionist becoming entitled to the In case o£ lands in fee and dying under twenty-one, the charge was held to be part of her personal estate and to pass to the legatee, that con- struction being more beneficial to the infant, as it gaye her the disposition of it before twenty-one (x). And where debts of a testator have been paid by the Court out of the income of an infant tenant in tail, a merger of the charge cannot be presumed (y). What acts by way of declaration of trust, assignment, or other- Acts wUch wise, will be suf&cient to keep the charge alive or merging it, see (z). aiWe.*' ^' A merger was shown by a release by the tenant for life (a) ; by a Merger by disposition of the estate without mention of the charge by will (6) ; or by mortgage (c) ; or settlement (d) ; but not by separate receipts of land-tax from the tenant as a subsisting charge after it had been redeemed (e) ; it was by a settlement of the estate which was subject to the charge, providing that it should not be raised, though the puisne incumbrancer benefited was not a party (/). There will be no merger if it would prevent the operation of a trust; thus an annuity charged on an estate for the separate use of a married woman will not merge in a life estate to her in the same property (g). It seems that parol evidence of intention as to merger may be Parol given (h). (u) Se Leeming, 3 De G. F. & J. 43 ; N. S. 89. 7 Jur. N. S. 115 ; and see sup. p. 220. (c) PiU v. P. 22 Bcav. 294 ; 2 Jur. (x) Thomas v. Kemys, 2'Vera. 348, N. S. 1010. cited in 2 Ves. jun. 264 ; but this reason (d) Johiison v. Webster, 4 De G. M. & now faOs since the Wills' Act. G. 474 ; 1 Jur. N. S. 145. (y) Alsop T. Bell, 24 Beav. 451. (e) Blundell v. Stanley, 3 De G. & S. (z) Bailffy v. Richardson, 9 Ha. 734 ; 433 ; 13 Jur. 998. See Neame v. Jfoor- Hatch V. Skelton, 20 Beav. 453 ; Lord some, 3 Eq. 91, M. R. SeUey v. Lord Lake, I ib. 146 ; GurUer (/) Farrow v. Rees, 4 Beav. 18. V. G. 23 ib. 571 ; 3 Jur. N. S. 1013. (g) Byam v. Sutton, 19 ib. 656 ; 18 (a) Clifford v. C. 9 Ha. 675. Jur. 847. (6) Swinfrn v. S. 29 Beav. 199 ; 7 Jur. (A) Astley v. Milles, 1 Sim. 341, evidence. Digitized by Microsoft® 652 MEEGEE OP SECXTEITIES. Chap. 56. Statute of limitations. Tenants in common. Time does not run against tenant ' for life in possession who pays off a charge, but does not show any intention of keeping it alive, under the 3 & 4 Wm. 4, c. 27, s. 40 (i). When two persons are entitled to a charge in moieties, and are also tenants in common of the land on which it is an incumbrance, either may elect to take his share of the land unburthened with the charge, so as to oblige the other, if he 'wishes to have a moiety of the charge, to raise it out of his own moiety of the land (fc). (6.) Judicature Act. Jud. Act. By tli6 Jud. Act (l), it is enacted that there shall not, after the commencement of the act, be any merger, by operation of law only, of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. Previous to this enactment there were many cases in which there was a merger at law but not in equity (m). The law is now the same in all Courts. The rule in equity as to merger may thus be shortly stated : — 1. Merger in equity depends upon the intention, if declared, and, if no intention is declared, then upon presumption of intention arising from the position of the estate and charge. 2. Where the owner of an estate has a charge on it, which is merged at law, and it is indifferent to the owner whether the charge is kept on foot or not, equity presumes the charge to be merged. 3. But no such presumption arises, if there is some interme- diate charge between his own charge and his ownership in fee, or a purpose beneficial to the owner can be answered by keeping the charge on foot, or if the owner declares his intention to keep it alive (n). (») Burrell v. Ewrl of Egremont, 7 ed. 4, 309. Beav. 205 ; Cowntess of Sh/rewsbury v. Earl of Shrewsbury, 3 Bro. C. C. 120. (k) Smith v. Frederick, 1 Russ. 200 ; 211. But see the opinion of Mr. Feame, on cases stated in Sand. Ua. (l) 36 & 37 Vict. c. 66, s. 25, sub-s. 4. («i) Bulkely v. Hope, 1 K. & J. 482 ; 1 Jur. N. S. 864. (n) Forbes y. Mofatt, 18 Ves. 384 ; Will, on Ex. 688, ed. 7, 695, ed. 8 ; Anderson v. JPignet, 8 Ch. 188. Digitized by Microsoft® Sect. 5. JUDICATURE ACT. 663 4. The rule is adopted in favour of the creditors of the person in whom these interests centre (o). 5. Where the prior incumbrancer purchases the fee, or the owner of the fee purchases the prior incumbrance, the merger has the effect of letting in an intermediate incum- brancer, often contrary to the intention {p). 6. Care, therefore, should be taken to keep the prior incum- brance alive by express declaration ; although, at this day, the above authorities may have to be recon- sidered (g). (o) Powell r. Morgan, 2 Vem. 90. 142. (p) Toulmin v. Steere, 3 Mer. 210; (q) Stevens Y. Mid-Hants M. C«.,8Ch. Farry v. Wright, 1 S. & S. 369 ; 5 Buss. io69. Digitized by Microsoft® 654 CHAPTER LVII. ASSIGNMENT OF MOETGAGE. Assignee in same position as the mort- When mort- In equity, the mortgage debt is the principal, the land the accessary. An assignment of mortgage is, therefore, in equity, a transfer of a debt with its attendant securities ; and, as the acces- sary always follows the principal, it results that, when the debt is satisfied, the security is determined. On this principle the courts hold, that on an assignment of mortgage without the concurrence of the mortgagor, the assignee, standing in the place of the original creditor, is subject in all respects to the like equities and settlement of accounts as the mortgagee himself would be {a). The mortgagor not concurring in the assignment is not bound gagor does not ^y ^j^g amount appearing due on the face of the mortgage (6). This doctrine has been confirmed by Lord Eldon (c), and may be considered as settled, as well in respect to payments before and after the assignment as also on a running account. The concur- rence of the mortgagor in the assignment of a mortgage conse- quently should, if possible, never be dispensed with ; and in cases in which, from unavoidable circumstances, an assignment is taken from the mortgagee only, the precaution should be had of obtaining a covenant from the mortgagee, that the money alleged to be owing is actually due ; and notice of the assignment should be given to the mortgagor with the least practicable delay. The mortgagor not being bound by the settlement of account between the mortgagee and assignee, a fortiori he cannot be preju- diced by any agreement between them to increase the amount of Interest cannot be con- verted into principal. (a) Earl of Macclesjield v. Fittm, Veni. 169 ; 1 Ch. Ca. 68 ; Matthews v. Wallwyn, i Ves. 118 ; Williams v. Sorell, ib. 389 ; Bradwell v. Catehpole, 3 Sw. 79, note. (6) Williams v Sorrell, sup. (c) ChaTTibers v. Qoldwin, 9 Ves. 254. Digitized by Microsoft® ASSIGNMENT OP MORTGAGE. 655 the principal due ; and, consequently, the arrears of interest at the time of the assignment cannot, generally speaking, without his concurrence, he converted into principal and tacked to the mort- gage (d). And even with his consent, the interest cannot with notice he tacked to the prejudice of other creditors having then a lien on the estate (e). Nor can the rate of interest be changed. But Talking costs, it is submitted, that as equity will, on the settlement of accounts, allow the necessary costs of defending and maintaining the title (/), renewal of leases (g), and the like, with interest in the mean time, the amount of such costs may on an assignment be tacked to the principal, and will carry interest without the moi-tgagor's con- currence, and have preference to other subsisting charges. A further advantage arising from the concurrence of the mort- gagor in the assignment is, that in such case the mortgagee need not be made a party to an action of redemption, which otherwise may he the case, that he may account for the profits received in his time (h). There is another most important point to be attended to by the Assignment by mortgagee in mortgagee in an assignment of mortgage, viz., that if he is inpos- possession. session, he is considered in equity, in some measure, in the light of a trustee, and accountable for the profits ; and, therefore, if with- out the assent of the mortgagor, he assigns over the mortgage to another, he will be held Uable to account for the profits received subsequently to the assignment (i), on the principle that, having turned the mortgagor out of possession, it is incumbent on him to take care in whose hands he places the estate. A query is added in Equity Cases Abridged (t), whether, if the mortgagor hides, so that he cannot be served with a subpoena, the mortgagee in possession may not assign without being accountable for the subsequent profits ; but the query only tends to shew the general rule. If the assignee is a purchaser of the mortgage debt, or, in other Wten assignee words, pays a less sum for it than the amount due, he wUl be mortgage debt, entitled to the full benefit of his purchase {k). It has, however, been questioned, and an attempt made to confine the purchaser to (d) Macclesfield v. FUton, sup. ; Ashen- Manldve v. Bale, 2 Vern. 84 ; and see hurst V. James, 3 Atk. 271 ; Porter v. p. 243, sup. Hubhart, cited ib. ; and see Matthews (h) 2 Eq. Ca. Ab. 594. V. Wallwyn, sup. ; see inf., p. 869 (r). (*) 1 ib. 328. (e) JHgby v. Craggs, Amb. .612 ; 2 Ed. (*) Phillips v. Vaugh/m, 1 Vera. 336 ; 200 ; Montague v. Ratcliffe, 2 Fonb. Eq. Baker v. Kcllett, 3 Rep. Ch. 13 ; Anon. 438. 1 Salk. 155 ; Ascomghy. Johnson, 2 Vem. (/) Godfrey v. Watson, 3 Atk. 518. 66 ; iforret v. Paske, 2 Atk. 63 ; Darey {ff) iMcan V. Mertins, 1 Wils. 34 ; v. Hall, 1 Vern. 49. Digitized by Microsoft® 656 ASSlGNMElfT OJ MORTGAGE. Chap. 57. Where pur- chaser is a trustee. Power of attorney. the amount of the sum which he actually paid on the assignment ; but, as observed by Lord Cowper, since he runs the hazard of a loss, he ought to have the benefit of the gain (l). If, indeed, the purchaser is in the situation of a trustee for the owner of the estate, then the Court will hold that he made the purchase for the benefit of the estate, and consequently, an executor, or guardian, or trustee, shall be only repaid the sum which he actually gave (m). In like manner, if the heir at law is the purchaser, and there be judgment or specialty creditors, he shall not have the benefit of the assign- ment beyond the amount of the purchase to their prejudice (re) ; and the like' doctrine was, in one case (o), attempted to be extended to the instance of a purchase by a stranger to the estate; but Ld. Hardwicke has remarked (p), that he knew no subsequent case in which it had been laid dovm as a general rule, but that it had been held only with regard to agent, trustee, heir at law, or exe- cutor (q). And even with regard to those persons, if the mortgage is purchased for the purpose of protecting a subsequent incum- brance to which they are entitled in their own right, they may take the full benefit of the prior security (r). In a subsequent chapter (rr), this doctrine will be more fully dilated on. These general observations may be therefore sufficient in this place. At law, the debt being a chose in action, was not, in general, before the Jud. Act, assignable. A power of attorney must therefore have been given by the mortgagee to the assignee, to enable him to proceed in the mortgagee's name on the covenant and bond (s). The debt may, indeed, under special circumstances, be assignable at law as if secured by a negociable instrument, such as a bill of exchange, which passes by indorsement; and Mr. Powell (t) has suggested, whether in such a case the general rule before stated (m), as to the liability of the assignee to the state of the account between the mortgagor and mortgagee would apply ; for the assignee or indorsee has a legal right in the debt, and a (i) Anon. 1 Salt. 154. (m) Morret v. Paake, 2 Atk. 53, inf. p. 1042. (m) Braithwaite v. B. 1 Vern. 335 ; Long T. Clapton, ib. 464 ; Lamcaster v. Eoors, 1 Ph. 349, 355; 13 L. J. Ch. 269 ; and the same seems now, since the 3 & 4 Wm. 4, 0. 104, to apply to a simple contract creditor. (o) Williams v. Springfield, 1 Vern. 335, 476 ; and see Long v. Clapton, sup. (^p) Morrett v. Paske, sup. (q) And see Bromley v. Eolland, 5 Ves. 620. (r) Darcy v. Hall, 1 Vern. 49. See inf. (rr) Inf. p. 1042. («) See Slip. p. 494. it) Pow. Mtg. 973, 4th edit. (tt) Svp. p. 654. Digitized by Microsoft® ASSIGNMENT OP MOBTGAGE. 667 legal remedy at law, which equity will not take from him. There certainly seems considerable force in the reasoning. Where the mortgagee assigns his mortgage as a security for the Assignment as sum advanced to him by a third person, and also is personally liable by covenant for the payment of such sum, the assignor is somewhat in the situation of a surety, and cannot be enjoined by the assignee from suing the original mortgagor upon his covenant, except upon the terms of such assignee releasing the assignor from his personal liability, and reconveying any estate of the assignor that had been included in the second mortgage {x). Although a pledgee may not have a right to pledge to a third P|«^g« •>? person with power of sale, the Court will not interfere to prevent a sale under the second pledge, if the pledgor, having notice of the second transaction, lies by and permits the second pledgee to consider the first pledgee to be the absolute owner, and in conse- quence to grant time for payment, and to defer the sale from time to time ; more especially if the_original pledgor has the benefit of the second advance (y). Where a mortgage is to be paid off by, and assigned to, a third Transfer not person with the further security of a bond from the mortgagor, and through the solicitor acting for both parties hands over the bond, but retains s°'"=i*™- the transfer, which is not executed by the mortgagee, and then absconds with the money, the party paying it must bear the loss, and the bond will be relieved against (z). If a mortgagee, having the deeds by virtue of his mortgage, have Ketention of dfifids also a different interest in the estate independently of the mortgage, he may, on an assignment of the mortgage, retain the deeds in respect of his other interest (a). In one case in the Queen's Bench, the Court seemed of opinion that if no mention is made of the title deeds in an assignment of a mortgage, and they are not required to be given up, the assignor may lawfully deliver them to the mortgagor, who may hold them against the mortgagee in respect of his equity of redemption (6). This, however, seems very questionable. It is generally considered that the introduction of a new proviso When assign- of redemption in the assignment of a mortgage is not sufficient to to a new constitute a new mortgage. In one case, however, where the ^°^s^^- (k) Oumey v. Seppings, 2 Ph. 40. ~ (s) Toung v. Guy, 8 Beav. 147. . (y) Nicholson v. Hooper, i My. & Cr. (a) Yea v. Field, 2 T. R. 708. 179. (6) -Davies v. Vernon, 6 Q. B. 443. Digitized by Microsoft® 658 ASSIGNMENT OF MOETGAGE. Chap. 57. Voluntary assigumeut. Assignment subject to equities. mortgagee assigned a part of the mortgage debt, and joined with the heir of the mortgagor in conveying part of the mortgaged lands to a new mortgagee, with a new proviso and at a new rate of interest, and with a bond and covenant, the Master of the Eolls held that it constituted a new mortgage (c). A voluntary deed of assignment- by a mortgagee of all his debts and personal estate, with a grant generally of all the estates held by him by tuay of mortgage, but not specifying the particular lands, and without delivery of the mortgage deed, or notice to the mortgagor, will not be aided in equity, if the deed be inoperative at law, though there be a covenant for further assurance {d). But at law, a general assignment by A. of all his personal estate and effects to trustees, has been held to pass a mortgage of leaseholds (e). It is not champerty if a mortgagor, pending a suit respecting the validity of his transaction with the mortgagee, give a lien on the securities in the hands of such mortgagee to another creditor, in consideration of that creditor giving up other securities (/), although it might have been so if he had undertaken to maintain the proceedings. So a first inortgagee, pending a suit with a party claiming adversely to the mortgagor, may assign the first mort- gage with power to prosecute the suit, to a second mortgagee, who covenants to indemnify the assignor against the costs of the action {g). And as a bond fide assignment of the subject of a suit may be made pending that suit {h), it would seem that it is open either to a , mortgagor or mortgagee during a redemption or fore- closure suit to assign his interest in that suit. The assignee of a contract or chose in action, or equitable security, takes it subject to all equities arising upon it (i) . Payments by the mortgagor to the original mortgagee after the assignment, but without notice of it, are binding on the assignee {k) ; but not payments to the solicitor of the mortgagee unless he had special authority (Z). On an intended transfer of a mortgage by three mortgagees, money due by the transferee to one of the mortgagees is not equi- valent to payment to the other transferees without their consent (m). (c) Barium, v. Earl of Thamet, 3 M. & B92. K. 607. (d) Ward, v. Audland, 8 Beav. 201. (e) West V. Stewwrt, 14 M. & "W. 47. (/) Hartley v. Russell, 2 S. & S. 244. (g) Sumter v. Daniel, 4 Ha. 420. (A) Harrington \. Long, 2 M, & K. (i) lAcklarrow v. Mason, 2 T. E. 63 • Mangles v. Dixon, 3 H. L. 702 ; 1 Mac. & G. 437. {k) Williams v. Sorre.ll, 4 Vea. 389. (I) Withington v. Tate, i Ch. 288. (m) Griffin v, Clowes, 20 Beav. 61, Digitized by Microsoft® ASSIGNMENT OP MOETGAGE. §59 The costs of assignment are payable by the mortgagee (m). As to covenants by the transferee sub-mortgaging his mortgage, see (0). A transfer of a mortgage cannot be compelled (p). Where no money passes on a transfer, a reconveyance will be ordered (q). Interest paid by transferee to transferor, though not mentioned in the transfer, is recoverable (r). The possession by the trans- feree of a legal interest in the estate does not strengthen his position (s). If there be fraud in the original creation of the mortgage, as, for F™*! in example, if no money actually pass between the parties, and if the gage how mortgagee afterwards assign to a third person for a valuable con- °'^°°'^ '"'*'''®" sideration, without notice of the fraud in the original transaction, and the mortgagor convey his equitable interest to a stranger for a valuable consideration without notice of the mortgage, the money paid on the assignment will make good the original transaction and purge the fraud {ss). But the transferee is in no better position than the mortgagee ^^^^ "o^- gage void. when the mortgage is absolutely void from the beginning, although he took for valuable consideration and without notice (t) ; but where the security is only voidable, it may become valid in the hands of such a transferee (u). The benefit of the debt passes by a transfer of the estate {x), and if the benefit of the debt be assigned, and the assignment refer in terms to the security, the benefit of the security will pass (y). The power of sale in the mortgage should also be referred to in Power of sale on- transfer, the transfer (z) ; but it would seem that all powers- and securities, although not mentioned, would pass (a). As to transfers of mortgages in copyholds, see sup. p. 234. CopyholdB. The transfer of mortgages on a change of trustees has been Transfer by trustees, simplified. If the mortgaged property is freehold, it is conveyed to the use of the continuing and a new trustee as heretofore ; but if {n) Ee BadcUffe, 22 Beav. 201 ; 2 Jur. 7 Jur. N. S. 1267 ; Ogilvie v. Jeaffreson, N. S. 387. 2 Giff. 363. (0) 6 Byth. 342, by Jarm. ed. 2. (m) Judd v. Green, 33 L. T. N. S. 597 ; \p) Colyer v. C. 11 W. E. 1051, AUborcmgh v. Trye, 7 CI. & F. 436, 463 ; L, J. George v. Milbanke, 9 Ves. 190. (q) Qriff,n v. Clowes, sup. (x) Jones v. Gibbons, ib. 411. (r) Cotterell v. Finney, 9 Ch. 541. (2/) Exp. Smith, 2 D. & C. 271. («) Bradwell v. Catchpole, 3 Sw. 78, n. (2) Curling v. Shvttleworth, 6 Bing. {ss) Newport's Case, Ca. t. Holt. 477 ; 121 ; Young v. Boberts, 15 Beav. 558. Skin. 423. («) Woody. Petrie, 7Ch. 385, revei-sing (0 Parker v. Clarke, 30 Beav. 54, 10 Eq. 482, M. R. V V 2 Digitized by Microsoft® 660 ASSIGNMENT OP MORTGAGE. Chap. 57. Transfer of part of a mort- gage debt. Arrears of rent whether pass. the mortgage is of personalty, the necessity for two deeds, which existed before, has been removed by Lord St. Leonards' Act (6), which enacts that any person shall have power to assign personal property now by law assignable, including chattels real, directly to himseK and another person or other persons, or corporation, by the like means as he might assign the same to another. This enact- ment does not apply to choses in action. There is an obvious difficulty in effecting a transfer of part of a mortgage debt, as the mortgagee's remedies by sale, foreclosure, &c., are indivisible so as not to admit of a partial transfer ; but the suggestions made in- the case of contributory mortgages are appli- cable (c), and a valuable note on this subject will be found in (d). An assignment of a mortgage without express words as to rent then in arrear does not carry rent accrued due prior to -the assign- ment (e)'.- • : : (J) 22 & 23 Yict. 0. 35, s. 21. (c) Sup., p. 224.' (d) 2 Dav. Conv. 1325, ed. 3. (e) Salmon v. Dean, 3 Mac. & G. 344 ; 15 Jut. 641, reversing 14 Jur. 235, Vi C. E. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®