I'h 
 
Cornell University Library 
 KF 399.S65 
 
 A manual of equity jurisprudence:special 
 
 3 1924 018 882 872 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell Universit> 
 
 And Presented February 14, 1893 
 
 IN riEnoRY OF 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018882872 
 
Entered according to Act of Congress, in the year 1871, 
 
 Bt W. H. & O. H. MORHISON, 
 
 Tn the Office of the Librarian of Congress, at Washington. 
 
 CAXTON PRESS OF SHBRltAN d: CX)., 
 PHILADELPHIA. 
 
nht Ijonorable ^amntl J* ftller* 
 
 OF IOWA, 
 OkE Ol? THE J0STICES OF TEE SUPEEME CoUET OP THE UNITED STATES, 
 
 THIS AMEEICAN EDITION 
 
 OP A WOEK INTENDED TO FACILITATE A KNOWLEDGE OP THAT JUEISFBUDENCE WHICH, 
 
 WITH OTHER BBANCHES OF THE LAW, HAS BEEN ADMINISTERED BY HIU 
 
 SO CONSCIENTIOUSLY DPON THE CIRCUIT, 
 
 UffD ILLUSTRATED AND EXPLAIITED SO ABLY IN THE HIGHER TRIBUNAL WHICH, BY THE 
 COMMON VOICE OF THE PROFESSION, HE EMINENTLY ADORNS, 
 
 JS MOST RESPECTFULLY INSCRIBED, 
 
 BY HIS OBLIGED SERVANTS, 
 
 THE AMEEICAN PUBLISHERS. 
 
 (iii) 
 
PREFACE 
 
 TO THE AMEEICAK EDITION. 
 
 The frequent demand from all parts of the United 
 States for some book which should give a succinct 
 yet comprehensive view of the leading principles of 
 Equity Jurisprudence, has led to the present reprint 
 of an English work which it is believed supplies the 
 want; a want greatly felt by students, and indeed by 
 many practitioners. For, the student labors under 
 great disadvantages, when he enters upon the peru- 
 sal of a large Treatise, without having previously 
 read any smaller work upon the same subject ; and 
 after he has read a work of two volumes^ he is able 
 accurately to retain but few points in his memory — 
 far fewer than he would after a careful perusal of a 
 condensed work. The practitioner, too, often stands 
 in need of a body of points and principles, well fixed 
 in his mind, as his constant guide and aid amidst the 
 rapid occaeions of daily practice : and yet it is impos- 
 sible for him to become possessed of such a body of 
 knowledge, except by the help of some succinct view 
 of Equity, or by the experience gained during long 
 and extensive practice. 
 
 1* (V,) 
 
Vi PREFACE. 
 
 The Manual is founded in a good degree upon tlie 
 "Commentaries on Equity Jurisprudence" of the 
 late Judge Story ; the " Equitable Jurisdiction " of the 
 late George Spence; and especially upon that admir- 
 able work "The Leading Oases in Equity." The 
 division of the subject is, however,' original. 
 
 In selection of topics the writer has obviously en- 
 deavored to collect together under appropriate heads, 
 the points necessary to be mastered by the student 
 of law, and those usually occurring, and necessary to 
 be accurately known and constantly borne in mind 
 bj'' every Chancery lawyer. 
 
 Unlike the learned author of the " Commentaries on 
 Equity Jurisprudence," which comprise upwards of 
 seventeen hundred pages, he omits such cases in 
 Equity as are of a peculiar nature, and not likely to 
 occur again ; and also such as are of so simple and 
 obvious a character, that the decisions respecting 
 them embody nothing more than so plain and neces- 
 sary an application of points and principles stated in 
 the work, that it would be sure to suggest itself at 
 once, without variation, to the minds of different in- 
 dividuals. He has aimed, moreover, at giving in a 
 few words, and without stating all that has been said 
 or may be said on any side— thus frequently leaving 
 the reader at a loss to tell what principle is or ought 
 to be established — that view which is settled by ad- 
 judged cases; or which, when there is a conflict 
 among such cases, seems to be the most correct one; 
 arranging, digesting, defining, distinguishing,.deduc- 
 ing, qualifying, and commenting, with a skill which 
 in England has received the highest tribute of praise. 
 
PREFACE. VIL 
 
 For readers who desire to examine in great detail 
 authorities of the older kind, the references to the 
 Commentaries of Story, in whose treatise they are 
 collected in great profusion, and to the learned trea- 
 tise of M.V. Spence, and especially to the Leading 
 Cases in Equity, will supply full means of gratifying 
 their desire. Cases decided since the death of Mr. 
 Spence and of Judge Story, numbering more than six 
 Jiundred and fifty, are given in this reprint. 
 
 W. H. & O. H. M. 
 
 WasSington, February 1st, 1871. 
 
CONTENTS 
 
 iNTKODTJCTIOJf. 
 
 PAGE 
 
 Sect. I. — Of the Nature of Equity Jurisprudence, and the 
 
 Extent of Equity Jurisdiction, ... 1 
 II. — Of the General Maxims of Equity Jurispru- 
 dence, ....... 10 
 
 III. — Of the Division of Equity, .... 33 
 
 TITLE I. 
 ©f ii.mtbivH igquitj. 
 
 SPECIFICALLY SO TBKMBD. 
 
 Chap. I. — Or Accident, 36 
 
 II. — Of Mistake, 45 
 
 III. — Or Actual Pkaud 56 
 
 IV. — Of Constructive Fkaud 71 
 
 TITLE II. 
 
 ©f jEwtutiSt iSpitj. 
 
 Chap. I. — Of Legacies and Portions, . . . 110 
 
 II. — Of Donationes Mortis Causa, . . . 117 
 
 III. — Of Express Private Trusts, evidenced 
 
 BT some "Written Document, . . . 120 
 IV. — Of Express Charitable Trusts, . . 149 
 
 V. — Of Implied Trusts, 155 
 
 VI. — Of Constructive Trusts, . . . 178 
 
 B ( ix ) 
 
X CONTENTS. 
 
 PAGE 
 
 Chap. VII. — Of Teustkes and others standing in a 
 
 riDUCIAKY KeLATION, .... 189 
 
 VIII. — Or THE Specii'ic Peeformancb of Aqbee- 
 mbnts and duties not arising from 
 Trusts, 223 
 
 TITLE III. 
 ©f aiJj'ustiSt BSquitj. 
 
 Chap. I. — Of Account in Genkkal 2fi0 
 
 II. — Of Administration, 265 
 
 III.— Of Moetoaobs, Pledges, and Liens. 
 
 Sect. 1. — Of Legal Mortgages of Real Property, 294 
 2. — Of Equitable Mortgages of Real Prop- 
 erty, 332 
 
 3. — Of Mortgages and Pledges of Personal 
 
 Property, 334 
 
 i.— Of Liens, 338 
 
 IV. — Of Apportionment and Contribution, . 340 
 
 V. — Of Partnership, 348 
 
 VI.— Of certain Special Adjustments in Cases 
 of Debtor and Creditor. 
 Sect. 1. — Of the Marshalling of Securities, . 354 
 2.-0/ the Mutual Right to the Benefit of 
 Securities between a Creditor and Sure- 
 ties, and of the Release of Sureties, . 356 
 
 Z.— Of Set-off, 359 
 
 VII.— Of certain Miscellaneous Cases of Ac- 
 count, 362 
 
 VIII. — Of Damages and Compensation, . . 364 
 
 IX.— Of Election 370 
 
 X. — Of Satisfaction 378 
 
CONTENTS. XI 
 
 PAGE 
 
 Chap. XI, — Or Partition; op Sjittlement of Boun- 
 
 DAKIES I AND OF ASSIQNMENT OF DOWEB. 
 
 Sect. \.— Of Partition, 388 
 
 2. — Of the Settlement of Boundaries, . . 391 
 
 3. — Of the Assignment of Dower, . . 303 
 
 TITLE IV. 
 ©{ f rotwliii iSquitj. 
 
 IRRBSPECTITB OF DISABILITY. 
 
 Chap. I. — Of Protection feom Litigation ok In- 
 jury, AFFORDED BY THE CANCELLINU, 
 DELIVERING UP, AND SECURING OF DOCU- 
 MENTS 396 
 
 II. — Of Protection prom Litigation respect- 
 ing THE Property of Another, by means 
 
 OF Interpleader, 401 
 
 III. — Of Protection from repeated or renewed 
 Litigation, or from unjust Legal Pro- 
 ceedings, AFFORDED BY DECREES UPON 
 Bills of Peace or Bills to establish 
 "Wills, and by injunctions. 
 
 &V.CT. 1.— Of Bills of Peace 406 
 
 2.-0/ Bills to Establish Wills, . . 408 
 
 3. — Of Injunctions to restrain Proceedings 
 
 at Law, 410 
 
 IV. — Of Protection from Loss or Injury, in 
 
 other Cases, by Injunction, . . . 415 
 V. — Op Protection from Another's Abscond- 
 
 ment, by the Writ of Ne Exeat Eegno, 423 
 
Xll CONTENTS. 
 
 PAOE 
 
 VI. — Of the Peotbction of Pbopektt by taking 
 
 ATVAY THE POSSESSION OR EeCKIPT THEKE- 
 
 OF, OK BY REQUIRING SECURITY, . . 425 
 
 TITLE V. 
 
 ®{ f totJEttiSt 3gquit2. 
 
 IN FAVOR OF PERSONS UNDER DISABILITY. 
 
 Chap. I. — Of Infants, 430 
 
 II. — Of Persons of Unsound Mind, . . . 442 
 
 III. — Of Married Women, 445 
 
 Sect. 1. — The Powers which Husband and Wife 
 have, in Equity, of Contracting with 
 and Chiving and Granting to each 
 
 other 446 
 
 2. — Pin-money and Paraphernalia, . . 449 
 3. — The Wife's separate Estate, . . . 451 
 4. — The Wife's Equity to a Settlement or 
 
 Maintenance out of her own Property, 463 
 5. — Some Miscellaneous Points respecting 
 
 Deeds of Separation, . . , 475 
 
 TITLE VI. 
 
 ffif Euxiliarj Jg^uits. 
 
 Chap. I. — Of a Discovery in aid op a Suit or De- 
 fence IN ANOTHER COUST, . . . 480 
 
 II. — Of the taking and preserving of Testi- 
 mony IN aid of a Suit or Defence in 
 another Court, .... 48B 
 
^ABLE OF CASES, (a) 
 
 A. 
 
 Abbot V. Sworder, 64. 
 Ackroyd v. Smithson, 161. 
 Acraman v. Corbett, 97. 
 Adselts V. Hiver, 70! 
 Agar V. Fairfax, 388. 
 Airey v. Hall, 233. 
 Alde'rson v. White, 295. 
 Aldrich v. Cooper, 285. 
 Aleyn v. Belchier, 107. 
 AUoway v. Braine, 19. 
 Alt V. Alt, 257. 
 Ancaster (Duke of) v. Mayer, 
 
 270. 
 Anderson v. Abbott, 372, 375, 
 
 447. 
 
 — V. Elsworth, 105. 
 Angle, ex parte, 211. 
 Ashton-s Charity, re, 153. 
 Atkinson, in re, 251. 
 
 — V. Smith, 104, 326. 
 Atterbury v. Wallis, 98, 100. 
 Att.-Gen. v. Alford, 201. 
 
 V. Corp. of Beverley, 
 
 153. 
 211. 
 
 V. Corp. of Leicester, 
 V. Davey, 163. 
 
 Att.-Geu. V. Earl of Chester- 
 field, 264. 
 
 V. Greenhill, 156. 
 
 — 1). Trin. Coll., Cam- 
 bridge, 153. 
 
 — V. Wilkins, 21. 
 Ayles V. Cox, 236. 
 
 B V. W , 238, 396, 397. 
 
 Bagot V. Bagot, 278, 417, 418. 
 Bagshaw v. "Winter, 469, 471. 
 Bagster v. Fackerell, 165. 
 Baillie v. Baillie, 31. 
 Baker v. Bradley, 76. 
 
 — V. Monk, 65, 66. 
 
 — V. Read, 19. 
 
 Bank of Hindustan, &c., in re, 
 
 339. 
 Bank of London v. Tyrrell, 80, 
 
 82. 
 Barling v, Bishopp, 97. 
 Barnes v. Bond, 341. 
 Barnwell v. Iremonger, 271. 
 Barrett v. Hartley, 191, 206. 
 Barrow v. Barrow, 465. 
 Barrs v. Fewks, 126. 
 
 (a) This comprises more than 650 cases from the authorized Reports 
 published during the last fourteen years, with a few earlier cases. , For 
 the rest of the earlier cases the reader is referred to the works of Stouy, 
 Spence, and others, on which this Manual purports to be founded. 
 
 2 ( xiii ) 
 
XIV 
 
 TABLE OF CASES. 
 
 Barr's Trust, re, 249. 
 Barry v. Croskey, 60. 
 
 — V. Stevens, 261. 
 Bartlett r. Bartlett, 249. 
 Barton v. Vanheythuysen, 96, 
 
 102. 
 Barvvell v. Barwell, 20. 
 Basset v. Nosworthy, 21, 187, 
 
 212. 
 Bate V. Hooper, 202. 
 Band v. Fardell, 195. 
 Baxter v. West, 350. 
 Beale v. Symonds, 331. 
 Beckton v. Barton, 382. 
 ISaech v. Keep, 232. 
 Beecher v. Major, 172. 
 Beevor v. Luck, 318. 
 Bell V. Carter, 296. 
 Bennet v. Lytton, 215. 
 Bentley v. Craven, 82. 
 — V. Mackay, 45. 
 Benwcll v. Inns, 74. 
 Berdoe v. Dawson, 76. 
 Bernard v. Minsliull, 129. 
 Bethell v. Green, 271. 
 Bibby ij.Thompson (No.l),126. 
 Biddlo V. Jackson, 440. 
 Birds V. Askey, 290. 
 Birkley v. Pre'sgrave, 347. 
 Biron v. Mount, 138. 
 Blacket v. Bates, 251. 
 Blagrove v. Routh, 19. 
 Blandy v. Widmore, 29, 175. 
 Blatchfordu. Woolley,461,463. 
 Blest V. Brown, 85. 
 Bloye's Trust, in re, 79. 
 Bold V. Hutchinson, 52. 
 Bond V. England, 277. 
 Bone V. Pollard, 173. 
 Bonser v. Kinnear, 126. 
 Bostock V. rioyer, 201. 
 Bott V. Smith, 90. 
 Boughton V. Hutt, 45. 
 Boulton, ex parte, 247, 249. 
 Boats V. Ellis, 118. 
 
 Box I'. Barrett, 377. 
 
 Boys V. Boys. 202. 
 
 Boyse v. Rossborough, 68, 69, 
 
 409. 
 Bradford (Earl of) v. Earl of 
 
 Romney, 49. 
 Bradwell v. Catchpole, 211. 
 Braybroke v. Inskip, 329. 
 Brice v. Stokes, 193, 209. 
 Bridge v. Beadon, 248. 
 
 — V. Bridge, 232. 
 Briggs V. Penny, 126, 129, 157. 
 Bright V. Larcher, 19,271,274. 
 
 — V. Legetton, 19. 
 British Empire Shipping Com- 
 pany V. Somes, 483, 484. 
 
 Broadbent v. Barlow, 99. 
 Bromley v. Smith, 88. 
 Brooke v. Lord Mostyn, 49. 
 Broughtou V. Broughton, 192. 
 Brown v. Brown, 375. 
 
 — V. GeUatly, 202. 
 
 — V. Kennedy, 51, 76, 78. 
 
 — V. Tanner, 249. 
 Brown's Trusts, in re, 248. 
 Browne v. Savage, 248. 
 Brumridge v. Brumridge, 209. 
 Buchanan u.Harrison,161, 165. 
 BuUer i'. Plunkett, 249. 
 Burn V. Calvallo, 245. 
 
 Bury r. Oppenheim, 77. 
 Byne i;. Blackburn, 126. 
 
 Campbell v. Campbell, 380. 
 
 — V. Ingilby, 38. 
 Campbell's Trusts, in re, 189. 
 Carew v. Cooper, 239. 
 Carpmael v. Powis, 47. 
 Carr v. Living (No. 2), 437. 
 Carter v. Carter, 21, 307. 
 Castle i;. Castle, 126. 
 Caton V. Eidout, 460. 
 
TABLE OP CASES. 
 
 XV 
 
 Cavendisli v. Greaves, 359. 
 
 Chambers v. Crabbe, 76. 
 — V. Goldwin, 435. 
 
 Chaplin v. Young, 205. 
 
 Charlesworth v. Jennings, 60. 
 
 Charlton v. West, 380. 
 
 Chertsey Market, in re, 211. 
 
 Chesterfield (Earl of) v. Jans- 
 sen, 86. 
 
 Chichester (Lord) v. Coventry, 
 380, 381. 
 
 Child V. Mann, 404. 
 
 Chowne v. Bay lis, 245. 
 
 Churchill v. Churchill, 373. 
 
 Clark V. Fergusson, 420. 
 
 — V. Leach, 349. 
 
 — V. Malpas. 65. 
 Clarke v. Franklin, 164, 165. 
 
 — V. Hilton, 166. 
 Clegg V. Edmondson, 20, 185. 
 
 — V. Lowland, 216. 
 Clive V. Carew, 461. 
 Cochrane u. Willis, 47, 238. 
 Cockell V. Taylor, 65. 
 Cole V. Willard, 385. 
 Collier v. McBean, 236. 
 Colyer v. Finch, 21, 307. 
 Commissioners of Public 
 
 Works V Harby, 92. 
 Conron v. Conron, 169. 
 Consolidated Investment and 
 
 Insurance Co. v. Eiley, 307. 
 Cook V. Earl of Eosslyn, 402. 
 
 — V. Gregson, 268. 
 Cooke V. Lamotte, 105. 
 Cooper V. Joel, 396. 
 Cooper V. Phibbs, 47. 
 Cooper V. Wormald, 213. 
 Cory V. Eyre, 28, 303. 
 Cosnahan v. Grice, 119. 
 Coventry v. Chichester, 380. 
 
 — V. Coventry, 272. 
 Cowdry v. Day, 79. 
 Cowell V. Yatcombe, 199. 
 Cowgill V. Rhodes, 409. 
 
 Cox V. Bishop, 250. 
 Cox V. Coventry, 233. 
 Craddock v. Owen, 160. 
 Crawshay v. Maule, 348. 
 Croft V. Graham, 87. 
 Croskill V. Bower, 205. 
 Cuddee v. Butter, 225, 258. 
 Cutler, in re, 465, 470. 
 
 D. 
 
 Dady v. Hartridge, 271. 
 
 Daking v. Whimper, 103. 
 
 Dally V. Wonham, 82, 88. 
 
 Dauiell v. Arkwright, 50. 
 
 Darbey v. Whitaker, 251. 
 
 Darby v. Darby, 352. 
 
 Davies v. Davies, 77. 
 — • V. Nicholson, 281. 
 
 Daw V. Terrell, 332. 
 
 Dawson v. Dawson, 382. 
 
 Day V. Day, 249. 
 
 DeHoghtoni;. Money,241,399. 
 
 Dening v. Ware, 96, 232. 
 
 Denne v. Light, 238. 
 
 Denton v. Donner, 83. 
 
 Dering v. Earl of Winchelsea, 
 345. 
 
 Devaynes v. Noble, 264. 
 — V; Robinson, 211. 
 
 Devov V. Devoy, 173. 
 
 Di Sora v. Phillips, 32. 
 
 Dilkes V. Broadmede, 281. 
 
 Dilrow V. Bone, 233. 
 
 Dimmock v. Hallett, 235. 
 
 Dimsdale v. Dimsdale, 66, 76. 
 
 Diplock V. Hammond, 245. 
 
 Dipple V. Corles, 122. 
 
 Directors of the Shrewsbury 
 and Birmingham Railway 
 Company v. Directors of 
 North Western Railway 
 Company, 238. 
 
 Dixie V. Wright, 227. 
 
 Dixon V. Peacock, 179, 343. 
 
XVI 
 
 TABLE OF CASES. 
 
 Dolan V. Macdertnot, 151. 
 Donaldson v. Donaldson, 232. 
 Doncaster v. Doncaster, 129. 
 Douglas V. Culverwell, 66. 
 Dowles V. Saunders, 307. 
 Dowling V. Betjemann, 225. 
 Downes v Jennings, 20, 96. 
 Drew V. Lockett, 357. 
 
 — V. Martin, 173. 
 Drosier v. Brereton, 197. 
 Druiflf'y. Lord Parker, 50. 
 Duffy's Trust, re, 468. 
 Dumper v. Dumper, 173. 
 Duncombe v. Greenacre, 464, 
 
 465, 470. 
 Dunkley v. Dunkley, 470. 
 Durham (Earl of) v. Sir F. 
 
 Lsgard, 230. 
 Dyer v. Dyer, 171. 
 
 E. 
 
 Eaden v. Firth, 419. 
 Eaton V. Bennett, 51. 
 
 — V. Watts, 126. 
 Eaves v. Hickson, 200. 
 Eddels 11. Johnson, 271. 
 Eddleston v. Collins, 326. 
 Edmonds v. Lowe, 384. 
 Egmont V. Darell, 409. 
 Elcock V. Mapp, 160. 
 Elibank (Lady) v. Montolieu, 
 
 463. 
 Ellice V. Roupell, 487, 489. 
 Elliot V. Merryman, 102, 142. 
 Ellison V. Ellison, 96, 102, 136. 
 Elwes V. Elwes, 50. 
 Espey V. Lake, 77. 
 Espin V. Pemtoerton, 307. 
 Essell V. Hayward, 350. 
 Evans v. Bremridge, 358. 
 
 — v. Oarrington, 478. 
 Eyre v. Countess of Shaftes- 
 bury, 430. 
 
 F. 
 
 Falcke v. Gray, 224, 238. 
 Farrell v. Davenport, 235. 
 Fenwick v. Potts, 332. 
 Field V. Peckett (No. 3), 222. 
 Finch V. Shaw, 307. 
 Fisher v. Baldwin, 360. 
 Fitzsimmous v. Fitzsimmons, 
 
 372. 
 Fleming v. Buchanan, 271. 
 Fletcher v. Ashburner, 227, 
 
 271. 
 
 — V. Fletcher, 232. 
 Fluker«. Taylor, 261. 
 Ford, re, 469. 
 
 — V. Olden, 316. 
 
 — V. White, 334. 
 Foster v. Roberts, 88. 
 Fowler v. Fowler, 49. 
 Fowler's Trust, re, 373. 
 Fox V. Fox, 126. 
 
 — V. Mackreth, 184. 
 Francis v. Brooking, 470. 
 
 — V. Clemow, 168. 
 
 — V. Francis, 338. 
 Freeman v. Lomas, 361. 
 French v. French, 97. 
 FuUerton v. Marten, 129. 
 
 G. 
 
 Gaffee, in re, 458. 
 Gardner v. Gardner, 460. 
 Garrard v. Frankel, 50. 
 Garth v. Cotton, 177. 
 Gent V. Harris, 470. 
 Gibbins v. Taylor, 207. 
 Gibbs V. Daniel, 79. 
 Gibson v. Goldsmid, 24. 
 
 — V. Seagrim, 285. 
 Gilbert v. Lewis, 452. 
 
 — V. Overton, 233. 
 Gilbertson v. Gilbertson, 273. 
 
TABLE OF CASES. 
 
 XVU 
 
 Gleaves v. Paine, 463, 469. 
 Glenorchy (Lord) v. Bosville, 
 
 16, 49, 129. 
 Glover, re, 123. 
 Goddard v. Whyte, 357. 
 Goulder v. Camin, 452. 
 Graham v. Wickham (No. 1), 
 
 387. 
 ,Grant v. Grant, 122, 233, 448. 
 Green v. Britten, 453. 
 
 — V. Marsden, 127. 
 Greenslade v. Dare, 21. 
 Greenwood v. Greenwood, 49, 
 
 66. 
 Gregory v. Wilson, 368. 
 Gresley v. Mousley, 19, 79. 
 Greville v. Browne, 168. 
 Griffiths V. Porter, 199. 
 Grosvenor v. Durston, 372. 
 
 — V. Slierratt, 90. 
 Grove's Trust, re, 469. 
 GuUey v. Cregoe, 126. 
 Gyiiu V. Gilbard, 434. 
 
 H. 
 
 Hamilton v. Buckmaster, 236. 
 Hammond v. Smith, 385. 
 Hance v. Truwhitt, 374. 
 Hannah v. Hodgson, 77. 
 Harbin v. Darby, 192. 
 Harcourt v. White, 19. 
 Harding v. Glyn, 44, 126, 155. 
 Harmann v. Mshar, 137. 
 Harmes v. Parsons, 74. 
 Harris v. Harris (No. 1), 220. 
 
 — V. Mott, 457. 
 
 — V. Pepperell, 50. 
 
 — V. Watkins, 167, 168. 
 Harrison v. Guest, 64. 65. 
 
 — V. Harrison, 161. 
 
 — V. Randall, 219. 
 
 — V. Tennant, 350. 
 
 Hart V. Tribe, 126. 
 Hartland v. Murrell, 167. 
 Hassell v. Hawkins, 385. 
 Hayden v. Kirkpatrick, 330. 
 Haymes v. Cooper, 339. 
 Heald v. Hay, 239. 
 Heather r. O'Niel, 326. 
 Hensman v. Fryer, 271, 287. 
 Heptinstall v. Gott, 166. 
 Hewison I'. Negus, 104, 447. 
 Higgins V. Samels, 235. 
 Hill V. Boyle, 241.. 
 Hilton V. Woods, 240. 
 Hiscock (Doe d.) v. Hiscocks, 
 
 54. 
 Hitchcock V. Glendinen, 473. 
 Hitchman v. Stewart, 347. 
 Hobday v. Peters. 329, 463. 
 Hoddell -B. Pugh, 228. 
 Hogdson V. Bibby, 20. 
 Hoghton V. Hoghton, 76. 
 Holloway v. Eadclifle, 227. 
 Holman v. Loynes, 79. 
 Holmes' Estate, re, 80. 
 ^ — V. Penney, 97. 
 Holroyd v. Marshall, 247. 
 Honeywood v. Foster (No. 2), 
 
 Hood V. Oglandsr, 126. 
 
 Hope V. Hope, 31. 
 
 Hopwoodi;. Hop wood, 382. 
 
 Horton v. Brocklehurst, 206. 
 
 Hotten 1!. Arthur, 421. 
 
 Howe V. Earl of Dartmouth, 
 202. 
 
 Howells V. Jenkins, 372. 
 
 Hudson V. Temple, 229. 
 
 Hughes V. Jones, 230. 
 
 Huguenin v. Basely, 76, 105. 
 
 Hulme V. Tenant, 451. 
 
 Hunt V. Huut, 477. 
 
 Hunter v. Belcher, 263. 
 
 Huntingdon (Earl of) ^.Count- 
 ess of Huntingdon, 177, 326. 
 
 Hutton V. Rossiter, 60. 
 
 2* 
 
xvm 
 
 TABLE OF CASES. 
 
 I. 
 
 Insole, in re, 455. 
 
 Ion V. AsMon, 272. 278. 
 
 J. 
 
 Jarrold v. Houlston, 421. 
 Jeans v. Cooke, 174. 
 Jefferies v. Michell, 385. 
 Jenkins v. Joues, 311. 
 Jenkinson v. Harcourt, 277. 
 Jenner v. Morris, 360. 
 Jennings v. Baddeley, 350. 
 
 — V. Broughton, 58. 
 Jervois v. Jervois, 450. 
 Johnson v. Gallagher, 461. 
 
 — V. Wyatt, 365. 
 Jones V. Parrell, 246. 
 
 — V. Gregory, 57. 
 
 — V. Lock, 233. 
 
 — V. Eicketts. 88. 
 
 — V. Thomas,' 402. 
 
 K. 
 
 Kay V. Johnston, 179. 
 — V. Smith, 58. 
 Keane v. Roberts, 210. 
 Keech v. Sandford, 185. 
 Kekewich v. Manning, 233. 
 Kellaway v. Johnson, 211. 
 Kelson v. Kelson, 102. 
 Kemp V. Burn, 222. 
 Kensington (Lord) v. Bouve- 
 
 rie, 344. 
 Kincaid's Trust, in re, 465, 
 
 470. 
 Kirkwood v. Thompson, 312, 
 
 319. 
 Koeber v. Sturgis, 470. 
 
 Lacon v. Allen, 333. 
 Lake v. Craddock, 175. 
 
 Lake v. Gibson, 22. 
 
 Lambarde v. Older, 361. 
 
 Lambe i>. Orton, 233. 
 
 Lambert v. Thwaites, 156. 
 
 Lancaster and Carlisle Rail- 
 way Company v. Noith- 
 Westem Railway Company, 
 422. 
 
 Lane v. Jackson, 21. 
 
 Langdale (Lady) v. Briggs, 
 277. 
 
 Laver v. Fielder, 19, 256. - 
 
 Layard v. Mand, 307. 
 
 Leary v. Shout, 350. 
 
 Lechmere v. Brotheridge, 457. 
 
 Le Neve v. Le Neve, 98. 
 
 Lee V. Hewlett, 307. 
 
 Leeds Banking Company, in 
 re, 461, 463. 
 
 L'Estrange v. L'Estrange,245. 
 
 Legg V. Goldwire, 49. 
 
 Leigh V. Lloyd, 99. 
 
 Lester u. Foxcroft, 253. 
 
 Lett V. Morris, 245. 
 
 Lewis V. Hillman, 80. 
 
 — V. Mathews, 452. 
 
 — V. Bees, 102. 
 Leyland v. lUingworth, 235. 
 Life Association of Scotland 
 
 r. Siddell, 465. 
 Lilford (Lord) v. Powys Keck, 
 290. ' ' ^ ' 
 
 Lincoln v. Wright, 93. 
 Lister v. Hodgson, 55. 
 Liverpool Borough Bank y.- 
 
 Turner, 336. 
 Lloyd I'. Attwood, 103. 
 
 — V. Banks, 248. 
 Lodge V. Prichard. 352. 
 Loffus V. Maw, 257. 
 Londesborough (Lord) v. Som- 
 
 erville, 170. 
 Long V. Bowring, 258. 
 Longmate v. Ledger, 65, 66, 
 
 68. ■ 
 
TABLE OF CASES. 
 
 XIX 
 
 Lovell V. Galloway, 411, 483. 
 Lovett V. Lovett, 409. 
 Loxley v. Heath, 256. 
 Lucy's case, 48. 
 Luflf V. Lord, 205. 
 Lyddon v. Moss, 81. 
 Lynch v. Grant, 212. 
 
 M. 
 
 Mackreth v. Symmons, 180. 
 
 Macleod v. Annesley, 197. 
 
 Macnab v Whitbread, 126. 
 
 Magawley's Trusts, re, 96. 
 
 MagdalenCol.t'. Att. -Gen. ,153. 
 
 Malcolm v. Scott, 245. 
 
 Malmesbury (Earlof) ij. Coun- 
 tess of Malmesbury, 50. 
 
 Manby v. Bewicke, 67. 
 
 Mangles v. Dixon, 251. 
 
 Mauningford v. Toleman, 176. 
 
 Mare v. Saudford, 98. ' 
 
 Marsden's Trust, re, 107. 
 
 Marsh v. Lee, 304. 
 
 Marshall v. Fowler, 469. 
 
 Martin v. Martin, 435. 
 
 McCarogher v. Whieldon, 380, 
 381. 
 
 McCormick v. Gamett, 469, 
 473. 
 
 McDonnell v. White, 20. 
 
 Meadows v. Meadows, 49. 
 
 Mendes v. Guedalla, 199. 
 
 Merriman v. Ward, 264. 
 
 Metcalfe's Trusts, re, 68. 
 
 Micklethwait v. Micklethwait, 
 418. 
 
 Middleton v. Greenwood, 385. 
 
 Millard v. Harvey, 478. 
 
 Miller v. Thurgood, 372, 373. 
 
 Millett I'. Davey, 298. 
 
 Money v. Money, 440. 
 
 Montefiore v. Guedella, 382. 
 
 Moore v. Morris, 456, 458. 
 
 Moore v. Petchell. 270. 
 
 Morgan v. Higgings, 81. 
 Morley v. Morley, 342. 
 Morse's Settlement, in re, 49. 
 Mortimer v. Bell, 237. 
 Mosley v. Ward, 375. 
 Moss V. Bainbrigge, 80. 
 Mostyn v. Mostyn, 49, 54. 
 Munch V. Cockerell, 211. 
 Murray v. Parker, 49, 53. 
 Murrell v. Goodyear, 107. 
 Mutlow V. Mutlow, 268. 
 Myers v. United Guarantee 
 Company, 242. 
 
 Nanney v. Williams, 20. 
 Napier v. Napier, 469. 
 Nelson V. Stocker, 59. 
 Nesbitt V. Berridge, 88. 
 Neve V. Pennell, 318. 
 Nevin v. Drysdale, 382. 
 Newberr}', in re, 432. 
 Newman, m re, 81. 
 Newman v. Selfe, 311. 
 Newman i;. Wilson (No.2),470. 
 Newton v. Chorlton, 357. 
 Nicholls V. Jones, 478. 
 Nottidge V. Prince, 68, 78. 
 Noys V. Mordaunt, 372. 
 Nunn V. Pabian, 253. 
 
 O. 
 
 Oakes v. Turquand, 61. 
 O'Brien v. Lewis, 80. 
 Ogilvie V. Jeaffreson, 21, 60, 99. 
 Ormes v. Beadle, 238, 252. 
 Oxford's (Earl of) case, 411. 
 
 P. 
 Padwick v. Hurst, 2G1. 
 
XX 
 
 TABLE OF CASES. 
 
 Page V. Cox, 124i 
 
 Pain V. Coombs, 255. 
 
 Palmer v. Newell, 387. 
 
 Parker 1). Clarke, 328. 
 — V. Heudrie, 314. 
 
 Parkin v. Thorold, 229. 
 
 Parkinson t).Hanbury,299,812. 
 
 Parnell v. Kingston, 233. 
 
 Paterson r. Murphy, 122. 
 
 Paterson v. Scott, 286. 
 
 Payne v. Mortimer, 234, 284. 
 
 Peachy v. Duke of Somerset, 
 258, 366. 
 
 Pearl v. Deacon, 357. 
 
 Pearman v. Twiss, 271. 
 
 Pearson v. Amicable Assu- 
 rance Office, 232. 
 
 Pearson v. Benson, 79. 
 
 Peckham v. Taylor, 121, 122. 
 
 Pegler v. White, 237. 
 
 Pembroke v. Friend, 279. 
 
 Penfold V. Mould, 471. 
 
 Penn v. Lord Baltimore, 30. 
 
 Perfect v. Lane, 88. 
 
 Perry v. Knott, 211. 
 
 Persse v. Persse, 66. 
 
 Peterson v. Peterson, 269. 
 
 Philanthropic Society t'.Kemp, 
 289. 
 
 Phillips V. Beal (No. 2), 211. 
 ■ — V. Edwards, 255. 
 
 — V. Gutteridge, 331. 
 
 — V. Hudson, 407. 
 
 — V. Parry, 270. 
 
 — V. Phillips, 260, 382. 
 Phillipson v. Kerry, 51,54,105. 
 Philpott t;. St. George's Hos- 
 pital, 153. 
 
 Phipps V. Child, 360. 
 Piggott V. Stratton, 107. 
 Pinchin v. Simms, 380. 
 Piper V. Piper, 279. 
 Pledge V. Bass, 357. 
 Plenty v. West, 272. 
 Poole, ex parte, 176. 
 
 Pooley r. Quiltcr, 84. 
 Potts V. Surr, 76. 
 Powell V. Hellicar, 117. 
 — v. Merrett, 160. 
 Powys V. Blagrave, 417. 
 Price V. Ley, 55. 
 Prideaux v. Lonsdale, 96. 
 Prole V. Soady, 180. 
 Pulsfordu. Bichards, 58,60,01. 
 Pusey V. Pusey, 427. 
 Pye, ex parte, 878. 
 Pyrke v. Waddingham, 236. 
 
 Q- 
 
 Quayle v. Davidson, 126. 
 
 B. 
 
 Banelagh(Lord) r.Melton,229. 
 
 Bankin v. Weguelin, 118. 
 
 Eavcnscroft ■;■. Jones, 382. 
 
 Eawlins v. Wickham, 60, 350. 
 
 Bead v. Stedman, 160. 
 
 Bees V. Berrington, 85. 
 
 Beeves v. Baker, 126. 
 
 — V. Greenwich Tanning 
 Company, 238. 
 
 Eehden r. Wesley, 198. 
 
 Eeid V. Eeid, 155. 
 
 Beynell v. Sprye, 59, 74, 239. 
 
 Eeynolds v. Godlce, 164. 
 
 Bhodes i\ Bate, 76. 
 
 Bice V. Eice, 28, 303. 
 
 Bichardson-i'. Bichardson,233. 
 
 Eidgway v. Newstead, 20. 
 
 Bipley v. Waterworth, 165. 
 
 Eoberts v. Croft, 333. 
 
 Bobertson r. Norris, 19, 311. 
 
 Bobinson v. Gcldard, 289. 
 — V. Governors of Lon - 
 don Hospitai, 
 161, 162. 
 
TABLE OF CASES. 
 
 XXI 
 
 Eobinson v. Pett, 84, 184, 186, 
 192. 
 — V. Wheelwright, 459. 
 Rodick V. Gandell, 245, 246. 
 Rogers v. Challis, 257. 
 Bolt V. Hopkinson, 305. 
 — t;. White, 251. 
 Kooket!. Lord Kensington, 50. 
 Eooper v. Harrisson, 308. 
 Rose 1). Watson, 226. 
 Rotheram v. Rotheram, 271. 
 Row V. Dawson, 245. 
 Rowe V. Rowe; 202. 
 Rowland v. Evans, 350. 
 Rowlandson, ex parte, 352. 
 Ruffia, ex parte, 352. 
 Russell V. Kellett, 152. 
 Russel V. Russel, 332. 
 RyaU V. Rowles, 247. 
 
 S. 
 
 Salter v. Bradshaw, 88. 
 Saltmarsh v. Barrett, 160. 
 Salusbury v. Denton, 155. 
 Samuel v. Ward, 378. 
 Sanders v. Rodway, 477. 
 Savery v. King, 77, 79. 
 Scales V. Maude, 232. 
 Scarfs. Soulby, 96. 
 Schofleld V. Heap, 382. 
 Scholefield v. Lock wood, 50, 
 320, 327. 
 — V. Templer, 61. 
 Schroder v. Schroder, 374. 
 Scott V. Spashett, 467, 470. 
 
 — V. Tyler, 73. 
 Seaaram v. Knight, 20. 
 Selby V. Pomfret, 318. 
 Sells V. Sells, 50. 
 Senior v. Pritchard, 411, 483. 
 Sercombe v. Sanders, 76. 
 Seton V. Slade, 228. 
 Shadbolt v. Yanderplank, 384. 
 
 Sharp «. Leach, 76, 88, 105. 
 Shattock V. Shattock, 463. 
 Shaw V. Bunny, 312. 
 Shee V. French, 268. 
 Shepard v. Brown, 261. 
 Shillibeer v. Jarvis, 253. 
 Shoveltdn D. Shovelton, 126. 
 Silk V. Prime, 167, 168, 268. 
 Simmons v. Rose, 274. 
 Slim V. Croucher, 60, 93. 
 Smedley v. Varley, 83. 
 Smee v. Baines, 360. 
 Smith V. Cherrill, 97. 
 
 — V. Everett, 216. 
 
 — V. Hurst, 137. 
 
 — V. Kay, 78. 
 
 — V. Leveaux, 261. 
 
 — V. Parker, 251. 
 
 ■ — V. Pincombe, 49. 
 
 — V. Smith, 469. 
 
 — V. White, 75. 
 Somerset (Duke of) v. Cook- 
 son, 427. 
 
 — V. Cox, 249. 
 South, ex parte, 245. 
 
 — V. Bloxam, 286. 
 Spaight V. Cowne, 100. 
 Sparshaw v. Gribbs, 343. 
 Spencer v. Pearson, 304. 
 
 — (Earl) V. Peck, 487, 
 
 488. 
 
 — V. Topham, 79. 
 
 Spicer v. Spicer, 465. 
 
 Spinks V. Cohen, 396. 
 
 Spirett V. Willows, 469. 
 
 Spread v. Morgan, 376. 
 
 Squires v. Ashford, 470. 
 
 St. Albyn v. 'Harding, 88. 
 
 Stackhouse v. Countess of Jer- 
 sey, 28. 
 
 Stainton v. The Oarron Com- 
 pany, 362. 
 Stansfleld v. Cubitt, 247. 
 Stapilton v. Stapilton, 48, 66. 
 Steele v. Murphy, 138. 
 
XXI 1 
 
 TABLE OF CASES. 
 
 Steele v. North Metropolitan 
 Bailway Company, 422. 
 
 Stephens v. Stephens, 372. 
 
 Sterne v. Beck, 367. 
 
 Steward, ex parte, 245. 
 
 Stocker v. Wedderburn, 237, 
 477. 
 
 Stocks V. Dobson, 250. 
 
 Stokoe V. Cowan, 97. 
 
 Strange v. Breniion, 80. 
 
 — V. Fooks, 20, 85, 357. 
 Strathmore (Countess of) v. 
 
 Bowes, 96. 
 Streatfield v. Streatfield, 372. 
 Strong V. Strong, 97. 
 Stroughill V. Anstey, 145, 213. 
 Stump V. Gaby, 81. 
 Sugden v. Crossland, 204. 
 Suggitt's Trusts, 469. 
 Surcome v. Pinniger, 254. 
 Surtees v. Perkin, 286. 
 Swainson v. Swainson, 278. 
 Swaisland v. Dearsley, 235. 
 Swan, re, 464. 
 
 — V. Holmes, 372. 
 Swift V. Swift, 432, 447. 
 SwinfeniJ.Swinfen (No. 5), 198. 
 Sykes v. Sheard, 236. 
 
 T. 
 
 Talbot V. Stanforth, 88. 
 Tassell v. Smith, 305. 
 Tassey's Trust, in re, 453. 
 Tate i). Williamson, 76. 
 Tatham v. Vernon, 232. 
 Taylor v. Meads, 457. 
 
 — V. Portington, 231. 
 
 — V. Taylor, 161, 102. 
 Tempest v. Tempest, 290. 
 Tench v. Cheese, 271, 274. 
 Thompson v. Cartwright, 100. 
 
 — V. Pinch, 206. 
 
 — i'.Hudson,300,300. 
 
 Thompson v. Tomkins, 248, 
 249. 
 — V. Webster, 97. 
 — ■ v.Whitmore,50,51. 
 
 Thornborough v. Baker, 188. 
 
 Thorp V. Owen, 126. 
 
 Tliynne (LadyE.) v. Earl of 
 Glengall, 253, 379. 
 
 Tidd V. Lister, 287, 475. 
 
 Tilderley v. Clarkson, 238. 
 
 Tiiley v. Thomas, 229. 
 
 Tinsley v. Lacy, 421. 
 
 Tipping V. St." Helen's Smelt- 
 in s Company, 419. 
 
 Toilet V. Toilet, 18, 44. 
 
 Tomson v. Judge, 79, 80. 
 
 Topham v. Duke of Portland, 
 105. 
 
 Torre v. Torre, 49. 
 
 Townsend v. Mostyn, 277, 278. 
 
 Trail v. Baring, 60. 
 
 Trutch V. Lamprell, 206. 
 
 Tucker v. Burrow, 173. 
 
 — V. Laing, 85, 86. 
 Turner v. Sargent, 129. 
 
 — V. Turner, 339. 
 
 — V. Wright, 177, 418. 
 Turnley v. Hooper, 97. 
 Tynte v. Hodge, 88. 
 Tyrrell i: Bank of London, 80, 
 
 82. 
 Tyrrell's Case, 124. 
 Tyson v. Jackson, 242. 
 
 U. 
 
 Underwood v. Wing, 160. 
 Qsticke v. Peters, 372. 
 
 V. 
 
 Vandenberg v. Palmer, 122. 
 
TABLK OF CASES. 
 
 XX 111 
 
 Vansittart i'. Vansittart, 231, 
 
 447. 
 Vaughan v. Buck, 470. 
 ■ — V. Vanderstegen, 
 461, 463. 
 Veal V. Veal, 118. 
 Verity v. Wylde, 339. 
 Viner v. Francis, 113. 
 Vint V. Padget, 318. 
 Vivers v. Taite, 238. 
 Vorley v. Cooke, CO. 
 Voyle V. Hughes, 232. 
 
 W. 
 
 ^Y V. B , 238, 396. 397. 
 
 Wake V. Conyers, 392. 
 Walker r. Armstrong, 50. 
 
 — V. Drury, 469, 471. 
 
 — V. Jones, 328. 
 
 — V. Micklethwait, 32. 
 
 — i\ Smith, 80. 
 
 — • V. Symonds, 211. 
 Wall V. Colshead, 165. 
 Wallace v. Auldjo, 473. 
 Waller r. Barrett, 215. 
 Walrond v. Walrond, 447. 
 Ward V. Turner, 117. 
 
 — V. Yates, 470.' 
 Warden v. Jones, 97. 
 Waters v. Taylor, 348. 
 
 — V. Thorn, 79, 81. 
 Watney v. Wells, 350. 
 Watson V. Duke of Welling- 
 ton, 245. 
 
 Watson V. Lyon, 339. 
 
 — V. Marshall, 470, 471. 
 
 — V. Watson, 382. 
 Weale v. Ollive, 232. 
 Webb V. England, 224, 441. 
 
 — V. Hewitt, 85, 358. 
 Webster u. Cecil, 236. 
 
 — I'. Webster, 249. 
 
 Wells y. Maxwell (No. 1), 229. 
 Wentworth v. Lloyd, 20, 82. 
 Wheeler v. Howell, 168. 
 
 — V. Smitli, 126. 
 Whitbread v. Smith, 326. 
 White V. Grane, 335. 
 White's Trusts, re, 155. 
 Whitley v. Whitley, 372. 
 Wicks V. Scrivens, 318, 319. 
 Wilcooks V. Wilcocks, 29, 175. 
 Wild V. Milne, 351. 
 Wiikins v. Sibley, 214. 
 Wilkinson v. Fowkes, 23. 
 Willes V. Grecnhill (No. 1, 2), 
 
 248. 
 Williams v. Bayley, 69. 
 
 — V. Headland, 215. 
 
 — V. Williams, 66, 173, 
 
 409. 
 Wilson V. Lady Dunsany, 293. 
 
 — V. Wilson, 49, 54, 476, 
 
 477. 
 Wintour v. Clifton, 372, 373, 
 
 376. 
 Witt V. Amis, 118*. 
 Wolterbeek i'. Barrow, 49. 
 Wood V. Ordish, 270. 
 Woodford v. Charnley, 238. 
 Woolam V. Hearn, 256. 
 Woolridge v. Woolridge, 373. 
 Worseley i;. De Mattos, 137. 
 Worthingtonu.Wiginton, 376. 
 Wright V. Goff, 49. 
 
 — v. Lord Maidstone, 42 . 
 
 — V. Vanderplank, 19, 
 
 76, 78. 
 Wyke V. liogers, 85. 
 Wythe V. Henniker, 291. 
 
 Young V. Young, 272, 305. 
 
A MANUAL 
 
 EQUITY JURISPRUDENCE. 
 
 INTEODUCTION 
 
 Section I. 
 
 Of the Nature of Equity Jurisprudence, and 
 
 the Extent of Equity Jurisdiction. 
 
 To explain the true nature of Equity Ju- inteob. 
 
 . , , . . . , Sec. I. 
 
 risprudence with brevity, perspicuity, and 
 
 accurateprecisioii.isataskof great difficulty ana import- 
 
 >■ ' b J ^^^g of the 
 
 (see Story's Com. Ch. I. passim), on account inquiry, 
 of the mixed character of the science,. and 
 the immense extent of learning which for 
 this purpose it is necessary for the mind to 
 survey at one and the same time. It is 
 most important, however, that some at- 
 tempt be made to accomplish this, before the 
 
 1 (1) 
 
NATURE AND EXTENT OF EQUITY. 
 
 INTKOD. 
 
 Sec I. 
 
 Definition 
 of equity 
 jurispru- 
 dence. 
 
 reader's attention is directed to the parti- 
 cular doctrines of the vast and admirable 
 system, the principal features of which it is 
 the design of these pages to delineate. 
 
 The writer believes it is impossible to 
 give a short definition of Equity Jurispru- 
 dence, without cither failing to convey any 
 accurate and definite knowledge, or else 
 positively misleading the student. But 
 Equity Jurisprudence in the specific and 
 technical sense of the term, as contradis- 
 tinguished' from natural, abstract, and uni- 
 versal Equity, and from Law and the 
 Statutory Jurisprudence of the Court of 
 Chancery, may be described to be a por- 
 tion of justice or natural Equity, not em- 
 bodied in legislative enactments or in the 
 rules of the Common Law, yet modified by 
 a due regard thereto, and to the complex re- 
 lations and convenience of an artificial state 
 of society, and administered in regard to 
 cases where the particular rights in respect 
 whereof relief is sought come within some 
 general class of rights enforced at Law, or 
 may be enforced without detriment or in- 
 convenience to the community, but where, 
 as to such particular rights, the Courts of 
 Law cannot, or originally did not, clearly 
 
NATURE AND EXTENT OF EQUITY. 3 
 
 afford any relief or adequate relief, at least ^g™°°' 
 
 not without circuity of action or multiplicity 
 
 of suits, 01' cannot make such restrictions, 
 adjustments, compensations, qualifications, 
 or conditions, as may be necessary in order 
 to take due care of the rights of all who 
 are interested in the property in litigation. 
 Although there may possibly be some pecu- 
 liar cases which may at first sight be thought 
 to prove this description to be faulty, yet it 
 will probably appear, on closer considera- 
 tion, that such cases (if any such there are) 
 are not to be regarded as illustrative of the 
 general character of Equity Jurisprudence; 
 and it will probably be found, and the fol- 
 lowing observations may tend to show, that 
 such description conveys a just notion of the 
 true nature of that science. 
 
 I. In the most general sense, Equity is Equity jur- 
 
 ° / A ./ isprudence 
 
 synonymous with natural justice. (See St. ^^'^^^' 
 § 1, 2.) But Equity, as contradistinguished S'^^^tfeel 
 from Law, and as administered in our 
 Courts of Equity, has a much narrower and 
 an otherwise different signification. Many 
 matters of natural justice, by the Equity 
 Jurisprudence of this and every other civil- 
 ized nation, are left to be disposed of inforo 
 conscientice, from the difficulty- of framing 
 
I NATUEB AND EXTENT OF EQUITY. 
 
 iNTROD. any general rules to meet them, and from 
 
 the mischief and inconvenience which 
 
 would arise from attempting judicially to 
 enforce such duties as charity, gratitude, 
 and kindness, or even positive engagements, 
 where-. they are not founded on a valuable 
 consideration, or, at least, on what is deemed 
 a good consideration. (See St. § 2, 8, note, 
 and §14; 1 Sp. 447. n. (d).) 
 
 And, on the other hand, setting aside that 
 body of natural justice which is comprised 
 in statutory provisions, a vast proportion 
 of what is specifically denominated Law, as 
 contradistinguished from what is technically 
 designated Equity, has been reared up inde- 
 pendently of legislative enactments or arbi- 
 trary or conventional rules, and consists, in 
 the main, of a system of natural Equity or 
 justice, modified so as to be adapted to the 
 manifold and complicated relations and exi- 
 gences of a highly artificial state of society. 
 (See St. § 7, 8, notes, and § 20, 34.) And 
 as to the construction of statutes, a Court 
 of Law is bound to interpret them accord- 
 ing to the intention of the legislature, as 
 much as a Court of Equity : indeed, both 
 adopt the same principles of interpretation, 
 (See St. § 15.) 
 
NATURE AND EXTENT OF EQUITY. 5 
 
 So that, on the one hand, natural iusticc ixtrod. 
 
 ' J SKC. I. 
 
 or Bquitj' is not excluded from the system 
 
 of Law ; nor, on the other hand, is it carried 
 out to an unlimited extent even in a Court 
 ,of Equity. And in the cases to which it is 
 applied in a Court of Equity, it is not always 
 applied in an unmodified form, but is quali- 
 fied (as we shall see in the next section and 
 in subsequent pages) by a due regard' to 
 legislative enactments and the rules of the 
 Common Law, and to the varied and com- 
 plicated relations and the general conve- 
 nience of the subsisting order of things. 
 
 The truth, then, appears to be this: first, Aiargepor- 
 
 , tlonofoatu- 
 
 that a large portion of natural Equity is rai justice is 
 
 ° -^ _ ^ •' left to con- 
 
 left to be administered in foro conscientice ; science. 
 
 because, in addition to the difiiculty of pro- 
 pounding precise rules applicable to all cases, 
 a greater detriment and inconvenience to the 
 community would probably ensue. from at- 
 tempting to enforce it in the public Courts, 
 than from leaving it to the decision and the 
 power of conscience, and to the various 
 motives by which mankind are ordinarily 
 influenced. Secondly, that another large Another 
 portion of natui-al Equity, in a modified ^inigte^rtd, 
 form, is administered by the Courts of Law, a'Li fJrarin 
 and is denominated Law, in contradistinc- law!^ ^ 
 
 1* 
 
6 ■ NATURE AND EXTENT OF EQUITY. 
 
 iNTROD. tion to what is technically termed Equity. 
 
 • — -. And thirdly, only a portion, therefore, of 
 
 tLedlJf^ natural Equity, and that in a modified form, 
 
 equiS^s ^s administered in a Court of Equity; and 
 
 oniy^a°por- that portiou is Specifically and technically 
 
 urai justice, Called Equity, in contradistinction as well 
 
 and lu a 
 
 modified to the two Other portions of Equity, or to 
 natural, abstract, and universal Equity or 
 justice in general, as to legislative enact- 
 ments, and arbitrary, feudal, or simply con- 
 ventional rules. 
 Srelsno ^^' ^- There are particular rights which 
 law.^and** come within some general class of rights 
 exclusive* enforced at Law, or capable of being judi- 
 cially enforced, not only in particular in- 
 stances, and to the benefit of particular 
 individuals, but in all cases, and to the 
 advantage of the community at large; and 
 yet there are no forms of action by which 
 relief can be obtained in respect of such 
 particular rights, and they are consequently 
 left to conscience by the Courts of Law ; 
 but being capable of being enforced by pro- 
 ceedings in Equity, and being of a character 
 demanding judicial sanction and interposi- 
 tion, Courts of Equity readily interfere and 
 afford relief. In these cases, therefore, 
 Courts of Equity have exclusive jurisdic- 
 
 jurisdiction. 
 
NATUKB ANDi EXTENT OF EQUITY. 7 
 
 tion. This, for example, is the case with ^g^,?""- 
 
 trusts, for the most pai*t ; with the right to 
 
 relief in many instances of accident, mis- 
 take, fraud, penalties, and forfeitures ; and, 
 in most cases, with the right to protection 
 against anticipated loss or injury. (See St. 
 § 29, 962.) 
 2 There are many other cases, in which where 
 
 •^ equity as- 
 
 the kind of relief which is afforded by Courts ™'».^'' J"™- 
 
 .^ diction on 
 
 of Law is inadequate, but in which Courts ^he^hiade^ 
 of Equity can give the precisely appropriate fegai'roiieff 
 relief. For example. Equity will often en- 
 force the specific performance of a contract; 
 whereas Courts of Law can only give 
 damages for the breach thereof. (See St. 
 § 30, 33.) 
 There are also cases in which adequate and of to avoid 
 
 ■^ circuity of 
 
 complete relief could be had at Law, but in ^iitipUcity 
 order to obtain it circuity of action or mul- o^™"*; 
 tiplicity of suits would be necessary ; where- 
 as complete justice can be done by a single 
 sui t in Equity. (See St. § 64, k, 496, 621, 853, 
 854.) 4 Cowen, ^82. 
 
 Again: Courts of Law cannot do more than or to take 
 
 due care of 
 
 pronounce a positive judgment in a settled therigiitsof 
 form, either for the plaintiff or the defendant, 
 irrespective of the peculiar circumstances of 
 the case ; whereas Courts of Equity can adapt 
 
8 ' NATURE AND EXTENT OF EQUITY. 
 
 iHTBOD. their decrees to all the various circumstances 
 
 Sec. I. 
 
 which may arise, and can take due care of 
 
 the rights of all who are in any way inter- 
 ested in the property in litigation. (See St. § 
 26, 27, 28, 437.) 
 
 In these three classes of cases. Equity has 
 a concurrent, and practically an exclusive 
 jurisdiction. Indeed in some, if not in all 
 of the last class of these cases, Equity will 
 assert an exclusive jurisdiction, by granting 
 an injunction against proceedings in other 
 Courts. (See Tit. II. chap. I., infra.) 
 or on ac- The neccssity for a discovery in a Court of 
 
 coimt of the .ii ....... 
 
 necessity Equitv fumishcd a ground of lurisdiction for 
 
 foradiscoy- . . 
 
 "■y; relief in a great variety of cases. For the 
 
 Court, having acquired cognizance of the suit 
 for the purpose of discovery, will frequently 
 entertain it for the purpose of relief. (St. 
 § 691, 692.) 
 
 or 01) ac- And in cases where the Courts of Law ori- 
 
 couut of the 
 
 oriLrinai de- ginally did not afford adequate relief, Courts 
 faw*^^"' of Equity exercised a concurrent jurisdic- 
 tion, unless prevented by a legislative enact- 
 ment, although the Courts of Law have sub- 
 sequently given such relief, because they can 
 have no power to circumscribe the jurisdic- 
 tion of Courts of Equity. (See St. § 64 i, 81 ; 
 2 Sp. 16.) If the jurisdiction of the Court of 
 
NATURE AND EXTENT OF EQUITY. ' 9 
 
 Chancery were necessarily to cease as soon ihtbod. 
 as a Court of Law assumed jurisdiction, it 
 would involve the administration of justice 
 in uncertainty and confusion; and it might 
 be otherwise extremely prejudicial thei-eto; 
 as the Courts of Law might sometimes enter- 
 tain suits, where they had not the proper 
 means of investigating the truth, or the neces- 
 sary ability to afFord full relief, or to take due 
 care of the rights of all the parties. 
 
 And so if it is doubtful whether the Courts or the 
 
 doubtful- 
 
 of Law can give such relief, the Courts of nessof 
 
 ° obtaining 
 
 Equity have jurisdiction. ' ™<=i> =^«'i«^- 
 
 3. In some cases a matter is most properly -^phere 
 cognizable at Law, and Courts of Law could auxiiia™ 
 always have afforded due relief, had they pos- 
 sessed that evidence which a Court of Equity 
 
 could obtain. In these cases Courts of Equity 
 have an auxiliary jurisdiction to provide 
 the Courts of Law with that evidence. (See 
 Title VI. Ch. I. infra, and see St. § 64 k, 
 673.) 
 
 4. Where it is clear that the Courts of Law where it 
 
 has no 
 
 could always afford adequate relief, without jurisdiction, 
 the aid of Courts of Equity, and without cir- 
 cuity of action or multiplicity of suits, and 
 could take due care of the rights of all who 
 are interested in the property in controversy, 
 
10 NATURE AND EXTENT OF EQUITY. 
 
 ^svc°i' ^<l"'*y ^^^ "° jurisdiction. (See St. § 33, 
 — 684 a & c, 686 ; 1 Sp. 408, 420 ; 2 Sp. 16.) 
 
 Nor, as already observed, have they any 
 jurisdiction as to those classes of rights 
 which could not be judicially enforced with- 
 out occasioning a greater general mischief 
 or inconvenience than that which results 
 from leaving them to be disposed of inforo 
 conscientiee. 
 
 Section II. 
 
 Of the General Maxims of Equity 
 Jurisprudence. 
 Sec. II. In addition to those maxims which are 
 acted upon as well in Courts of Law, as in 
 Courts of Equity, and besides various other 
 maxims which in terms apply to particular 
 parts of the Equity system, there are cer- 
 tain general maxims peculiar to Equity, 
 which it is of the gi-eatest use rightly to 
 understand, and to bear in mind, whether 
 in reading or in practice. 
 
 l-ithout^a' "'■■ ''"* ^^ * maxim, that Equity will not 
 suifer a right to be without a remedy. (1 
 Cru. Dig. X. 1, 50.) It will be evident from 
 the preceding section that this lies at the 
 very foundation of a large proportion of 
 
 remedv. 
 
GENERAL MAXIMS. 11 
 
 Equity Jurisprudence, as a supplotory sys- 1"™*!?' 
 tem. But it will also appear from the ob- 
 servations made in that section, that this 
 maxim must be regarded as referring exclu- 
 sively to rights which come within a class of 
 rights enforced at Law, or capable of being 
 judicially enforced without occasioning a 
 greater detriment or inconvenience to the 
 public than would result from leaving them 
 to be disposed of in foro conscientice. And 
 it must also be understood to refer to cases 
 where the party who is remediless at La\\^ 
 has not sacrificed or lost bis remedy by his 
 own act or laches (see St. § 684 a & c), and 
 where there is no equal or superior adverse 
 right. And there are some exceptive cases 
 of claims of natural justice capable in them- 
 selves of being enforced with pi'opriety, but 
 to which neither the Common Law nor 
 Equity give any remedy : as in the case of 
 the exemption at Common Law of the lands 
 of deceased debtors from the payment of 
 debts — an exemption which has been re- 
 moved by certain statutes, particularly by 3 
 & 4 Will. 4, c. 104. (See 1 Sp. 417, 174; and 
 Smith's Compendium of the Law of Eeal 
 and Personal Property, 3d ed., part 3, tit. 
 1, ch. 3, s. 1 ; no. IIL, p. 492.) 
 
12 GENBEAL MAXIMS. 
 
 iNTKOD. II. But not only will Equity often ad- 
 
 Sjio. II. J 1 J 
 
 minister a remedy where the Law will not 
 
 2. Eqiutjr •' 
 
 Mei-^'adue' S'^^'® ^"^ relief, bat it will also afford relief, 
 whereat ^^ ^® have already seen, where the Courts of 
 could not be Law Cannot, or originally did not,clearly give 
 adequate and complete relief, at least without 
 circuity of action or multiplicity of suits, or 
 cannot take due care of the rights of all who 
 are interested in the property in. litigation. 
 
 3. But III. But, as we have also seen, where it 
 
 equity will ' ' 
 
 fere "where '® dear that the Courts of Law did always 
 law could "^ afford adequate and complete relief without 
 a due°rein- the aid of a, Court of Equity, and without 
 
 edy. 
 
 Circuity of action and multiplicity of suits, 
 and could take due care of the rights of all 
 persons interested in the property in litiga- 
 tion, there Equity has no jurisdiction. 
 Illustration Thus, where there was always an adequate 
 
 drawn from 
 
 renta'^'' "' ^^^ Complete remedy at Law for the recovery 
 of rent, either by an action or distress, no 
 suit will be entertained in Equity, although 
 the remedy in Equity may be more benefi- 
 cial. The cases in which a suit is commonly 
 entertained in Equity for this purpose are 
 such as stand upon some peculiar Equity; 
 as where the joremises out of which the rent 
 is payable are uncertain ; or where the time 
 or amount of the payment is uncertain ; or 
 
GENERAL MAXIMg. 13 
 
 where a discovery or an apportionment is g'™']?- 
 
 wanted ; or where the remedy at Law is 
 
 obstructed or evaded by fraud, or is gone 
 without laches; or where none ever existed ; 
 or where it is inadequate, inconiplete, or 
 doubtful. (See St. § 684—687.) 
 
 IV. Although Equity will go beyond the f^n^^^'^fig 
 Law in supplying a remedy in the cases ^1'- 
 above" mentioned, yet it is a well-known 
 maxim that Equitj^ follows the Law. (See 
 St. § 64 a, bj 1 Sp. 419, 420.) The reason 
 is, that there may be uniformity of decision. 
 (2 Sp. 359, n. (a» 
 
 The true meaning of this maxim would 
 seem to be, that Equity is governed by leg- 
 islative enactments and the rules of Law, in 
 regard to legal estates, rights, and interests; 
 and that it is regulated by the analogy of 
 such legal estates, rights, and interests, and 
 the legislative enactments and rules of Law 
 affecting the same, in regard to equitable 
 estates, rights, and interests, where any 
 such analogy plainly subsists ; if, in each 
 case, there are no peculiar circumstances 
 rendering it absolutely necessary to deviate - 
 from this rule, or creating an equitable obli- 
 gation in one of the litigant parties, and an 
 equitable correlative. right in favor of an- 
 " 2 
 
14 GENERAL MAXIMS. 
 
 se™ii' '^^^^^ litigant party, and requiring a differ- 
 
 ent course to be taken in the particular case, 
 
 without overturning or destroying the gen- 
 eral application of any legislative enact- 
 ments or rules of Law that may, in terms 
 or by analogy, apply to the case. 
 
 There may indeed be eases in which Equity 
 has followed the Law, even where there have 
 been such peculiar equitable circumstances. 
 But it is conceived that these must be cases 
 in which the Court has (perhaps improperly) 
 declined to exercise the authority which it 
 really possessed and has ordinarily exerted. 
 To affirm that Equity follows the Law 
 in any less limited sense than that above 
 pointed out, would be to negative the exist- 
 ence of a large portion of Equity Jurispru- 
 dence, if not to assert that there is no such 
 thing as Equity as distinct from Law. But 
 to affirm that Equity follows the Law, in 
 the restricted sense above pointed out, is 
 merely to assert what is unquestionably 
 true, and most important to be remembered; 
 namely, that Equity will suffer legislative 
 enactments and the rules of Law to govern, 
 and the course of Law to proceed, as far as 
 it can without sacrificing claims grounded 
 on peculiar circumstances which render it 
 
GENERAL MAXIMS. 15 
 
 incumbent upon a Court of Equity to inter- ihtrod. 
 
 pose, in accordance with the maxim previ- 
 
 ously mentioned, that Equity will not suffer 
 a right to be without a remedy. 
 
 In illustration of the maxim, as it applies J" "^1™"°" 
 to equitable estates, rights, and interests, it Mgard ti" 
 may be observed that the limitations by cuted.^''^" 
 which equitable estates and interests are 
 created by way of trust executed, that is, a 
 trust formally and finally declstred by the 
 instrument creating it, are construed in the 
 same manner as similar limitations of legal 
 estates and interests would be construed in 
 a Court of Law ; so that, for example, what 
 would create an estate tail in the one ease, 
 will create an estate of the same kind in the 
 other case. But such a constructive assimi- Maxim does 
 
 not apply to 
 
 lation does not always take place in regard trusts exe- 
 
 */ ^ o cutory in all 
 
 to equitable estates and interests created by ''«'p««'s- 
 way of trust executory, which, as opposed to 
 a trust executed, is a trust not formally and 
 finally declared by the instrument creating 
 it, but intended to be so declared by some 
 future instrument. For, in the case of trusts 
 executory, there is often no substantial anal- 
 ogy, forming a ground for such assimilation ; 
 because, in many cases, the words are not so 
 much actual limitations, such as those by 
 
16 GENERAL MAXIMS. 
 
 iNTROT. which legal estates and interests are created, 
 
 as instructions or intimations as to the mode 
 
 in which the author of the trust wishes the 
 property to be settled by some future con- 
 veyance, settlement, or assurance referred 
 to in the instrument creating the trust; 
 and therefore the words are to be construed 
 according to the intent of the party, as pre- 
 sumable from the nature of the case, or from 
 the other parts of the instrument, rather 
 than according to what would be the strict 
 operation of the words, supposing them to 
 be actual limitations contained in a formal 
 and final instrument. (As to these trusts, 
 see Smith's Executory Interests, annexed to 
 Pearne's Treatise, § 489—502, and § 601— 
 637; Lord Glenorchy v. Bosville, 1 Lead. 
 Cas. Bq. 2d ed. 1, et seq.) 
 iiiustri- In illustration of the qualification that 
 
 tions of the ^ 
 
 Son add^d -Ej<liity follows the Law only where there 
 ter's'stat"" ^^^ ^'^ ^uch peculiar circumstances as above 
 true raean-° mentioned, it may be observed, that Equity 
 
 ingofthe n n i t ■ 
 
 maxim. follows the Law in regard to the rule of 
 Lawofpri- primogeniture, although that rule in any 
 
 luogeniture. 
 
 particular instance in which it is so followed, 
 may be productive of the greatest hardship 
 towards all the younger members of a large 
 family who, in one sense, by the operation 
 
GENERAL MAXIMS. 17 
 
 of the rule, may be left without any sort ^^^^jj- 
 of provision, whilst the eldest son may be 
 placed in a state of the greatest afluence. 
 But these are not peculiar circumstances 
 creating an equitable right to relief in favor 
 of the younger children against the eldest 
 son, and demanding the interposition of a 
 Court of Equity. The mere absence or 
 want of a provision, which may hav« arisen 
 from the culpable neglect of the parent, 
 can create no Equity against the eldest son. 
 He has the right to the descended or en- 
 tailed estate, without any reference to the 
 circumstances of the other members of the 
 family ; and the mere fact that they have 
 not been provided for by their parent can 
 impose on the eldest son no obligation, in a 
 Court of Equity, to divest himself, and can 
 give the younger children no equitable right 
 to strip him of that provision which the 
 Law has appointed him. No relief could be 
 given in such a case as this, without directly 
 derogating from a rule of Law, which a 
 Court of Equity has no power to do. But 
 if an eldest son should prevent his father 
 from executing a will devising one of his es- 
 tates to a younger brother, by promising to 
 convey the estate to such younger brother, 
 
 2» 
 
18 GENEEAL MAXIMS. 
 
 iNTROD. althouffh that estate would at Law descend 
 
 Sec. II. " 
 
 — to the eldest son, a Court of Equity would 
 doubtless interpose, and prevent the eldest 
 son from asserting any claim to it. (St. 
 Powers. § 64.) So Equity will often support the 
 defective execution of powers, where at Law 
 the act would be wholly nugatory. (St. § 
 64 a; Toilet v. Toilet, 1 Lead. Gas. Eq., 2d 
 statute of ed. 184, et sea.') And in cases under the old 
 
 Limitation. ' -r ■, -. n^ 
 
 Statute of Limitations (21 Jac. 1, c. 16), 
 Equity often interfered, notwithstanding 
 the time fixed by the statute had expired, 
 where it would have been inequitable to 
 have allowed the statute to be a bar; as 
 when a person perpetrated a fraud, which 
 was not discovered till the statutory bar 
 applied at Law ; or where a person carried 
 on an unfounded litigation, protracted so as 
 to subject his adversary to the statutory bar 
 at Law. (St. § 1521 ; 2 Sp. 62.) But, although, 
 in these cases. Equity did not follow the Law, 
 yet it did not overturn or destroy the general 
 application of the enactment. It only refused 
 to apply it in particular instances, where 
 there were peculiar circumstances creating 
 an equitable right to relief, demanding the in- 
 terposition of the Court in its support, and 
 capable of being enforced without at all dero- 
 
GENERAL MAXIMS. 19 
 
 gating from the general application of the 2*™!?- 
 
 enactment in question. So far from dero- 
 
 gating from the Statute, Equity was regu- 
 lated by analogy to the Statute, as to the 
 precise time fixed for asserting equitable 
 titles and claims to which the Statute did 
 not apply. (See St. § 64 a, 1520 ; 2 Sp. 60, 61. 
 And for other illustrations of the qualifica- 
 tions of the rule above stated, see St. § 476, 
 480, and Title II., Chap. III., on Express 
 Trusts, infra.) 
 
 Y. It is a maxim that, viqilantibus, non 8. vigUmti- 
 dormientibus, cequitas subvenit : the meaning dm-miemumi 
 of which is, that Equity discountenances "*'™^ 
 laches, and independently of any Statutes of 
 Limitation, has always refused to interfere, 
 where there has been gross laches in prose- 
 cuting rights, or long and unreasonable ac- 
 quiescence in the assertion of adverse rights. 
 (St. § 959 a, 1284 a, 1520 ; Baker v. Bead, 
 18 Beav. 398; Wright v. Vanderplank, 2 K. 
 & J. 1; Alloway v. Braine, 26 Beav. 575; 
 Bobertson' V. Morris, 1 Gif. 421; Gresley v. 
 Mousley, 1 Gif. 450; 4 D. & J. 178; Bright 
 V. Larcher (No. 2), 4 D. & J. 608 ; Rarcourt 
 V. White, 28 Beav. 303 ; Bright v. Legerton, 2 
 D. P. & J. 606 ; Blagrove v. Mouth, 8 D. M. 
 & G. 620; Laver v. Fidder, 32 Beav. 1; 
 
20 GENERAL MAXIMS. 
 
 iKTROD. Hodgson v. Bibby, 32 Beav. 221 ; Downes v. 
 
 Jennings, 32 Beav. 290 j Weniworth v. Lloyd, 
 
 32 Beav. 467; Strange v.Fooks, 4 Gif. 408; 
 McDonnell v. White, 11 H. L. Cas. 570 ; Bar- 
 well V. Barwell, 34 Boav. 371 ; Seagram v. 
 Knight, L. E. 3 Bq. Cas. 898.) And the mere 
 assertion of a claim, unaccompanied by any 
 act to give effect to it (as by taking legal 
 proceedings to enforce it) will not avail to 
 keep it alive. {Glegg v. Edmondson, 8 D. M. 
 & G. 787.) Under such circumstances, it 
 ■would in many cases be impossible to inter- 
 fere, without doing injustice to third persons 
 who had acquired interests in the property 
 during the intervening period. Thus, the 
 right of a creditor to make legatees refund 
 may be lost by laches. (Bidgway v. Newstead, 
 2 Gif. 492.) In general, nothing can call 
 forth a Court of Equity into activity, but 
 conscience, good faith, and personal dili- 
 gence. (2 Sp. 60, 61.) " It has been beau- 
 tifully remarked, with respect to the emblem 
 of Time, who is depicted as carrying a scythe 
 and an hour-glass, that while with one he 
 cuts down the evidence which might protect 
 innocence, with the other he metes out the 
 period when innocence can no longer be 
 assailed." (2 D. F. J. 617.) 
 
GENERAL MAXIMS. 21 
 
 YI. Where there is equal Equity, the ^^°^- 
 Law must prevail ; in other words, if the „ ,r-— 
 
 r ' '6. Viheie 
 
 defendant has a claim to the protection of a equS'^ 
 Court of Equity, equal to the claim which i^wmM?^ 
 the plaintiff has to the assistance of th« '"^''^* 
 Court, there the Court will not interpose, 
 but will leave the matter as it stands. It is 
 upon this account that a Court of Equity 
 refuses to interfere against a bond fide pur- 
 chaser for a valuable consideration without 
 notice of the adverse title, if he is in pos- 
 session or has purchased from an apparent 
 owner in possession, and if he chooses to 
 avail himself of the defence at the proper 
 time and in the proper mode. (St. § 64 c, 
 436 ; 2 Sp. 733 ; Basset v. Nosworthy, 2 Lead. 
 Cas. Eq. 2d ed. 1, et seq. ; Attorney- General 
 V. Wilkins, 17 Beav. 285 ; Greenslade v. Dare, 
 20 Beav. 284 ; Lane v. Jackson, 20 Beav. 
 535 ; Colyer v. Finch, 5 H. L. 905, 920 ; Ogil- 
 vie V. Jeaffreson, 2 Gif 353, 379. See also 
 Carter V. Carter, 3 K. & J. 617.) 
 YII. Another maxim is, that Equality is 7. Equality 
 
 is equity. 
 
 Equity, or, that Equity delighteth in Equa- 
 lity. (St. § 64 f.) Acting on this principle, riustration 
 Equity leaus strongly against joint-tenancy, the esse of 
 as it is attended with the inseparable incident ^^^^°^g 
 of the right of survivorship. For, although 
 
22 GENERAL MAXIMS. 
 
 iHTBOD. jt is true that each joint tenant may have an 
 
 equal chance of being the survivor, yet this 
 
 is but an equality in point of chance : as 
 soon as one dies, there is an end to the 
 equality between them ; "on that event the 
 whole accrues to the survivor. And the 
 equal certainty of having an absolute equal 
 share, or a share proportionate to the amount 
 of the purchase-money advanced, which is 
 an equal share so far as the justice of the 
 case will permit, is considered in Equity far 
 better than an equal chance of having the 
 whole or none of the property purchased. 
 The former is considered to be the true and 
 just equality. And therefore, if two persons 
 jointly purchase, or take a mortgage of an 
 estate, and advance the purchase or mort- 
 gage money in unequal proportions, Equity, 
 on the death of either of them, acting on 
 the maxina that Equality is Equity, will hold 
 the survivor a trustee for the representatives 
 of the deceased, as to a share proportionate 
 to the amount of the money so advanced by 
 him. (See St. § 1206 j Lake v. Gibson, 1 
 Lead. Gas. Eq. 2d ed. 143, et seq.) And 
 this furnishes another illustration of the 
 violation of the terms of the maxim, that 
 Equity follows the Law, though not of the 
 
GENERAL MAXIMS. 23 
 
 qualified and true sense of that maxim as S'"'"?* 
 above explained. 
 
 VIII. Another maxim is, that he who l-^^j}Z 
 
 ' comes into 
 
 comes into a Court of Equity must come with come wSh^' 
 
 1 1 J CI J.1 1. •!? 1 J. clean hands. 
 
 clean hands. So that if a person seeks to 
 cancel, set aside, or obtain the delivery up of ™J^n*(j™ 
 an instrument on account of fraud, and he traMSon? 
 himself has been guilty of wilful participa- 
 tion in the fraud. Equity will not interpose 
 in his behalf, unless the fraud is against pub- 
 lic policy, and public policy would be defeated 
 by allowing ic to stand. (See St. § 695.) 
 
 The rule must be understood to refer to Qualifica- 
 tion of the 
 
 wilful misconduct in regard to the matter ma^™- 
 in litigation, as in the foregoing example, 
 and not to any misconduct, however gross, 
 which is unconnected with the matter in liti- 
 gation, and with which the opposite party 
 in the cause has no concern. 
 
 IX. It is also a maxim, that he who seeks 9- He who 
 
 ' seeksequity, 
 
 I Equity, must do Equity. (St. § 64 e, 707; ^"Sty^" 
 
 , 1 Sp. 422.) 
 
 The meaning of this is, that he who seeks 
 
 1 Equity, must do Equity in the transaction 
 
 J in respect of which relief is sought; for the 
 
 I, rule does not reach so far as to affect any 
 
 it other transaction than that in respect of 
 
 I, which the relief is sought. (Wilkinson v. 
 
24 GENERAL MAXIMS. 
 
 SE™n ■ Fowkes, 6 Hare, 595 ; Gibson v. Groldsmid, 5 
 -^ ' D. M. & G. 757.) 
 Illustration To give an illustration of this maxim, a 
 
 drawn from 
 
 an usurious Court of Equity will not set aside an usurious 
 
 transaction. ■*■ " 
 
 transaction on a bill filed by the borrower, 
 unless upon the terms that he will pay the 
 lender what is bond fide due to Mm (a). It 
 niust not be inferred from this, however, 
 that the Court will oblige the borrower to 
 pay what is so due, on a bill filed by the 
 lender to enforce his claim (see St. § 64 e) ; 
 • for that would be contrary to the maxim, 
 that he who comes into Equity must come 
 with clean hands. 
 10. Equity X. It is a maxim, that Equity looks upon 
 
 looks on 1. J r 
 
 done^whioh *^^* *^ done, which ought to be done. (2 
 oughttobe Sp. 253, e(; sej.) This maxim is acted on in 
 some cases (as in the case of agreements) in 
 favor of persons who have a right to ask 
 that acts might be done, so as virtually to 
 place them, as near as may be, in the same 
 advantageous position as if those acts had 
 been done in the way in which, and at the 
 time when, they ought to have been per- 
 
 (a) The Usury Laws are abolished by the stat. 37 and 
 18 Vio. o. 90, except those relating to pawnbrokers, and 
 except as regards transactions prior to the 10th of August, 
 184. 
 
GEKERAL MAXIMS. 25 
 
 formed. (-See St. § 64 g; 2 Sp. 264; and ^^^^of 
 see Title II. Chap. VIII. mfra.) — ' 
 
 As a consequence of this maxim, money CouTersion. 
 directed to be employed in the purchase of 
 land, and land directed to be turned into 
 money, are in general regarded as that spe- 
 cies of property into which they are directed 
 to be converted (2 Sp. 256 — 258 ; and infra, 
 Title II. Chap. VIII. § 4), that is, either im- 
 mediately, or at some future time, according 
 to circumstances. (2 Sp. i!58.) And where 
 the intention in marriage articles is plain, 
 that a conversion should be made, but con- 
 sents of the parties interested to the actual 
 purchase cannot be obtained as required by 
 the instrument, by reason of their deaths or 
 for some other cause, if any convenient pur- 
 chase could have been obtained, the Coui't 
 will take upon itself to judge whether such 
 consents ought to have been given, and the 
 conversion being the paramount object, it 
 will be considered as made. If this were 
 otherwise, the parties to consent would have 
 the option of determining whether the pro- 
 perty should be real or personal, which, un- 
 less it be clearly given to them, will not be 
 permitted. An equitable conversion of land 
 into money, or of money into land, takes 
 
 3 
 
26 GENERAL MAXIMS. 
 
 se™ii' pl*''^ ^y force of the direction, notwith- 
 standing the conversion or investment is 
 directed to be made with the approbation of 
 certain parties; and legatees of legacies out 
 of a property directed to be converted with 
 the consent of the tenant for life in writing 
 are entitled to their legacies, whether the 
 property be converted or not; and the resid- 
 uary legatees of the proceeds are entitled, 
 subject to the legacies, to the estate itself, 
 if not converted. (2 Sp. 260, 261.) 
 
 Money devised or contracted to be laid 
 out in land will pass under a devise of all 
 the testator's messuages, lands, tenements, 
 and hereditaments. (2 Sp. 264.) 
 
 Eeal estate may be so constructively con- 
 verted as to be liable to legacy duty. (2 Sp. 
 267.) 
 
 The persons to whom property directed to 
 be converted is limited, and those who stand 
 in their place, are entitled to enforce the 
 conversion either actually or virtually. (See 
 2 Sp. 268, 269.) But a stranger (such as the 
 Crown or the Lord claiming in default of 
 heirs) is not entitled to call for a conversion. 
 (2 Sp. 266.) 
 
 Where money to be converted gets into 
 the hands of the person who is absolutely 
 
GENERAL MAXIMS. 27 
 
 entitled to it either way, the operation of the intkod. 
 
 rule of conversion will cease. (2 Sp. 270.) 
 
 Where the property is outstanding in a 
 
 trastee, but there is some person who is 
 
 absolutely entitled to the property, whether 
 
 taken as realty or personalty, such person, 
 
 by any act from which his intention may be 
 
 collected, may declare his election in what 
 
 quality it shall be taken. (Sp. 271, Fletcher 
 
 V. Ashburner, 1 Lead. Cas. Eq., 2d ed., 659,, 
 
 et seq.) Until an election is made, the 
 
 property passes as if actually converted, 
 
 and the onus lies on those who would show "^ 
 
 an election to take it in another character 
 
 than that it would have if converted. (2 
 
 Sp. 272.) 
 
 Where one person has a better Equity Person hav- 
 ing a right 
 
 than another person in respect of the same tocaiiforan 
 
 '- ^ assignment 
 
 property, in which each has an interest, the ance°treat- 
 former has a right to call for an assignment hadob-^^ 
 or conveyance of the legal estate, and in 
 Equity he will be placed in the same situa- 
 tion as if he had actually obtained . a con- 
 veyance or assignment. (2 Sp. 728.) 
 
 Volunteers have equal Equities among Equity of 
 themselves ; but a volunteer, though a wife 
 or child, has not equal Equity- with a bond 
 fide purchaser for a valuable consideration, 
 
28 
 
 GENERAL MAXIMS. 
 
 Intkod. 
 Sec. II. 
 
 11. QmpHor VT 
 est tew/poref 
 potior est 
 Jttre. 
 
 12. Equity 
 imputes in- 
 tention to 
 fullil an 
 obligation. 
 
 even with notice of the claim of the volun- 
 teer. (2 Sp. 728.) 
 
 As between persons having only- 
 equitable interests, if their Equities are in 
 all other respects equal, priority of time 
 gives the better Equity : qui prior est tem- 
 pore, potior est jure. But in a contest be- 
 tween persons having only equitable inter- 
 ests, priority of time is the last preference 
 resorted to ; i. e., a Court of Equity will not 
 prefer the one to the other on the mere 
 ground of priority of time, until it finds, 
 upon an examination of their relative 
 merits, that there is no other suflScient 
 ground of preference between them, or, in 
 other words, that their Equities are in all 
 other respects equal : and if the one has, on 
 other grounds, a better Equity than the 
 other, priority of time is immaterial. (Kin- 
 dersley, V. C, in Bice v. Bice, 2 Drew. 78 ; 
 StacJchouse v. Countess of Jersey, 1 Johns. & 
 H. 721 ; Cory v. Eyre, 1 D. J. & S. 149.) 
 
 XII. Where a man is bound to do an act, 
 and he does one which is capable of being 
 considered to have been done in fulfilment 
 of his obligation, it shall be so construed; 
 because it is right to put the most favora- 
 ble construction on the acts of others. (2 
 
GENERAL MAXIMS. 29 
 
 Sp. 204; Wileocks v. Wilcocks, 2 Lead. Cas. i»tkod. 
 
 Sec. II. 
 
 Eq., 2d ed., 345, et seq. ; Blandly v. Widmore, 
 
 id. 347.) 
 
 In the case of a covenant, that, on the Where adis- 
 
 tributive 
 
 death of the covenantor, a wife or relative ^iifrsisa 
 
 ' satisfaction 
 
 shall receive a gross sum, his or her dis- ^ouVy"^*" 
 tributive share, in the case of an intestacy, '=°''™™*- 
 if equal to or greater than the sum cove- 
 nanted to be paid, is to be considered as a 
 performance ; if less, as a part performance. 
 But where the covenant is, that an annuity 
 shall be paid or secured on the death of the 
 covenantor, the distributive share is not a 
 performance or part performance. (Id. ; 2 
 Sp. 609.) And where the covenant debt 
 arises in the lifetime of the covenantor (as 
 where he covenants within two years after 
 marriage to pay a certain sum, and he out- 
 lives the two years), a distributive share 
 will not be a performance or a satisfaction 
 of the covenant. (2 Sp. 609.) 
 
 XIII. It may be observed in this place, ls. Rules as 
 
 1 • . 11 1111 *° foreign or 
 
 that it IS a rule, that although the property coioniaipio- 
 in controversy be situate in a country out of contracts. 
 the jurisdiction of the Court, whether within 
 the English dominions or not, yet the Court, 
 in all cases where the proper parties are 
 within the territorial process of the Court, 
 
 3* 
 
30 GENERAL MAXIMS. 
 
 isTKOD. ^jii afford relief, so far as it can be afforded, 
 
 Sec. II. ' ' 
 
 by proceeding against the persons, and not 
 
 directly against the property. (See St. § 1290 
 —1300, 1352 a,; 2 Sp. 7j Penn v. Lord Bal- 
 timore, 2 Lead. Cas. Eq., 2d ed., 767, et seq.) 
 Thus, a bill cannot be brought for a parti- 
 tion of land situate in a country out of the 
 jurisdiction ; for the Court cannot award a 
 commission there. (St. § 1292; 2 Sp. 8, n. 
 (d).) But a bill may be maintained for an 
 account of the rents and profits of land out 
 of the jurisdiction, or for a specific perform- 
 ance of an agreement respecting such land. 
 (St. § 1291, 1300, 743, 744.) And the Court 
 has gone so far as indirectly to overhaul the 
 judgments of foreign Courts, and even the 
 sales made under those judgments, -where 
 fraud has intervened in those judgments, or 
 a grossly inequitable advantage has been 
 taken. (St. §1294; 2 Sp. 9.) 
 
 If a matter is within the jurisdiction of a 
 tribunal of competent jurisdiction in an- 
 other country, the Court of Chancery, ex- 
 cept under special circumstances, will leave 
 the matter to be disposed Of by that tri- 
 bunal. (2 Sp. 10.) 
 
 The right to personal property follows 
 the domicile, but the right to land or im- 
 
GENERAL MAXIMS. 31 
 
 movable property is to be determined by ^g^^- 
 
 the law of the country where it is situate. 
 
 Yet, if that question is mixed up with 
 others — for instance, with matters of ac- 
 count, which can be more conveniently dis- 
 posed of here — the Court will entertain juris- 
 diction of the whole matter; giving direc- 
 tions, in case of need, for instituting any 
 proceedings in the Colonial Courts. (2 Sp. 
 12 ; see Baillie v. Baillie, L. K. 5 Bq. Cas. 175.) 
 
 The remedy upon contracts must be that 
 which is given by the law of the country 
 where the parties reside. (2 Sp. 14.) But 
 contracts are generally construed according 
 to the law of the place in which they were 
 made. And, as a general rule, a contract 
 iwill not be enforced, unless it is valid both 
 /by the law of the country in which it was 
 made, and by the law of the country in 
 which it is sought to be enforced. (2 Sp. 
 13, 14; Hope V. Hope, 8 D. M. & G. 731.) 
 
 Where a written contract is made in a 
 foreign country and in a foreign language, ap 
 English Court, in order to interpret it, must 
 first obtain a translation of the instrument-; 
 secondly, an explanation of the terms of art 
 (if it contains any); thirdly, evidence of 
 any foreign law applicable to the case; and, 
 
32 
 
 GENERAL MAXIMS. 
 
 INTBOD. 
 Seo. II. 
 
 Jl Iiiter- 
 ftirence of 
 Courts of 
 Law with 
 tho duci- 
 sioiis of 
 Courts of 
 liquity. 
 
 fourthly, evidence of any peculiar rules of 
 construction, if any such rules exist, by the 
 foreign law. And, with this assistance, the 
 Court must then interpret the contract itself 
 on ordinary principles of construction. (Z>j 
 Sora V. Phillips, 10 H. L. Cas. 624, 633.) 
 
 XIV. "If a person has sustained injury 
 in consequence of any order or proceeding 
 of a Court of Equity, or by reason of any- 
 thing which has occurred in the execution 
 of its process, he must seek redress there, 
 and not in a Court of Law. If tie matter 
 complained of involves a question of the 
 jurisdiction of Equity, or of the validity or 
 effect of its order, or process, it will never 
 allow such a question to be carried for 
 decision to a Court of Law; but if, admit- 
 ting the jurisdiction of the Court and the 
 validity of its order, redress is sought merely 
 in respect of some irregularity or excess in 
 the execution of its order, it will, at its dis- 
 cretion, either itself give redress to the 
 aggrieved party, or permit him to proceed 
 at law, as justice and convenience may re- 
 quire." ( Walker v. Micklefhwait, 1 Drew. & 
 Sm. 49.) 
 
DIVISION OF EQUITY. 33 
 
 Inteod. 
 Sec. III. 
 
 Section III. 
 
 Of the Division of Equity. 
 
 The subject of Equity Jurisprudence may 
 be conveniently, and perhaps most properly, 
 treated under the following heads, designated 
 according to the more distinctive character- 
 istics of the relief afforded, or the general 
 objects sought to be effected. 
 
 I. Of Bemedial Equity, specifically so 
 termed. 
 II. Of Executive Equity. 
 
 III. Of Adjustive Equity. 
 
 IV. Of Protective Equity, irrespective of- 
 
 disability. 
 V. Of Protective Equity, in favor of 
 
 persons under disability. 
 VI. Of Auxiliary Equity. 
 
TITLE I. 
 
 ODf Hcmebid ©qnitg, 
 sperificolls 00 term«&. 
 
 (35) 
 
(36) 
 
 CHAPTER I. 
 
 OF ACCIDENT. 
 
 Cap li -^^ accident, in the usual sense of the term, 
 is an occurrence not referable to design. 
 S^accident. Accident, as remediable in Equity, may be 
 defined to be an unforeseen and injurious oc- 
 currence, not attributable to mistake, neg- 
 lect, or misconduct, 
 in the ca°e° ^hus the reduction, by Act of Parliament, 
 tfon'irf"''" of public stock directed by will to be set 
 apart to answer an annuity, is an accident, 
 remediable in Equity by decreeing the de- 
 ficiency to be made up against the residuary 
 legatees. (St. § 93.) 
 remediaMe* ^' '^^^''^^ ^^^ many cases of accident in 
 ^tuw. which due relief could always be obtained at 
 Law; and there Equity will not interpose. 
 (St. § 79.) 
 II. Aoci- II. On the other hand, there are many 
 
 dents not ' '^ 
 
 auawor'in ^ases in which no remedy can bo bad either 
 "I""'" at Law or in Equity. (St. § 79.) Thus, 
 of cuiTbu- ^" ■^^ relief will be granted where the ae- 
 "/ffcrei'^ cident arose from the gross neglect or fault 
 
ACCIDENT. 37 
 
 of the party seeking relief, or his agents, tit. i. 
 (St. § 105.) — ■ 
 
 2. And where a person has expressly and or of an 
 absolutely contracted or covenanted to do a agr'^enient, 
 particular thing, it is no ground for the in- 
 terference of a Court of Equity, that he has 
 been prevented by accident from fulfilling 
 his engagement, or from deriving the full 
 benefit of the contract on his side. For he 
 might have prevented any injurj' to himself 
 from accident, by making proper excep- 
 tions; but since he has made no such ex- 
 ceptions. Equity will not conjecturally limit 
 a liability which in terms is general and 
 unqualified. (See St. § 101— 104.) So that to repair, 
 if a lessee covenants to keep the demised 
 premises in repair, he will be bound to do 
 so, notwithstanding any unavoidable acci- 
 dent by which they are destroyed or injured. 
 (St. § 101.) And where there is a covenant or to pay 
 
 rent, 
 
 to pay rent during the term, without any 
 exceptions, it must be paid, notwithstanding 
 the premises are accidentally burnt down 
 during the term. (St. § 102.) So if an es- 
 tate is sold for a certain sum of money and 
 an annuity for the life of the vendor, and ™ ™ ""- 
 the vendor dies before the receipt of any 
 annuity, Equity will not grant relief. (St. 
 
 4 
 
38 
 
 ACCIDENT. 
 
 Tit. I. 
 Cap. I. 
 
 or of failure 
 of the con- 
 sideration : 
 
 or of a coun- 
 tervailing 
 equity : 
 
 or of want 
 of equity : 
 
 as where a 
 will is de- 
 fectively 
 executed. 
 
 § 104.) And an ante-nuptial settlement 
 cannot be set aside, reformed, or varied, on 
 the ground that it was intended that there 
 should be a pecuniary consideration on both 
 sides, whereas the pecuniary consideration 
 on one side has failed. {Campbell v. Ingilby, 
 21 Beav. 567 ; 1 D. & J. 393.) 
 
 3. Nor will relief be granted in favor of 
 a person whose equitable right to assistance 
 is not equal, or not more than equal to the 
 equitable right to protection which is pos- 
 sessed by the party against whom the relief 
 is sought. For this reason relief is not 
 given against a bond fide purchaser for 
 valuable consideration, without notice (see 
 St. § 108) ; or against an heir in tail or re- 
 mainder-man in tail, in favor of persons 
 claiming under the tenant in tail. (St. 
 § 107.) 
 
 4. And so relief will not be granted in 
 favor of a person, who, although a great 
 loser through an accident, has no equitable 
 title to relief, or as little as the person 
 against whom relief is sought. Thus, no 
 relief will be afforded to the legatees or 
 devisees under a will defectively executed 
 (see St. § 105 a, 106) : for, being mere volun- 
 teers, they have as little Equity as the heir 
 
ACCIDENT. 39 
 
 next or of kin, or even less, inasmuch as '^^^ ^• 
 
 fortior et cequior est dispositio legis quam 
 
 hominis (Co. Litt. 338 a) : and therefore the 
 legal right which has vested in the latter 
 will not be taken away; as the maxim is, 
 that "where the Equity is equal, the Law 
 must prevail." 
 
 III. But where a Court of Law cannot, ni- Acci- 
 
 dents reme- 
 
 or, in similar cases, originally could-not, or ^^^}'^ i° 
 
 ' ' o J ' equity. 
 
 did not, give adequate relief, and take due 
 care of the rights of all persons interested, 
 and the party prejudicially affected is free 
 from blame in respect of the accident, and 
 has a conscientious title to relief, it will be 
 granted by the Court of Chancery, if it can 
 be granted without derogating from any 
 positive agreement, or violating any equal or 
 superior Equity in another person. (See St. 
 § 28, 64 i, 79, 81, 85, 89, 101, 105, 106, 109.) 
 
 1. In cases of destroyed, lost, or sup- i. jurisdic- 
 
 •' ' '■ tionfordis- 
 
 pressed deeds, the jurisdiction of Equity, covery in 
 merely to compel a discovery, would seem to f^gf ™y|^' 
 be universal, because this was a preliminary goSl^'and 
 assistance peculiar to Equity. And where 
 a discovery only is sought. Equity will grant 
 it without any affidavit of loss ; because a 
 person would not file a mere bill of discov- 
 ery, unless the instrument were really lost. 
 
40 ACCIDENT. 
 
 Tit. I. But^ in these cases, the jurisdiction for 
 . .— T". relief, in addition to a discovery, is of limited 
 
 jurisdiction ' "^ ' 
 
 sucifclsii" extent ; for, in some of these cases, Courts 
 of Law have all along been able to admin- 
 ister, and have been in the habit of doing. 
 
 Requisites complete iustice. fSee § 83, 84.) And where 
 
 to maintaiD a. ^ \, v j ^ 
 
 uaJta^e-' ^^^^ relief is sought in a Court of Equity 
 c^Vs° ""''' an affidavit of the fact of destruction, loss, 
 or suppression must be annexed to the bill ; 
 because, in such cases, it is desired to 
 change the forum, from a Court of Law 
 which, prima facie, is the proper forum, 
 to a Court of Equity; and therefore an 
 affidavit ought to be required, to prevent an 
 abuse of the process of the Court. There 
 must also be an offer of indemnity in the 
 bill when the nature of the case seems to 
 require it. (See St. § 83 ; Mitford's Plead- 
 ings, ed. 5, pp. 65, 66.) And in order to 
 maintain the suit, it is further indispensable 
 that the destruction, loss, or suppression, if 
 not admitted by the answer, should be estab- 
 lished, at the hearing of the cause, by satis- 
 factory proofs. (See St. ^ 88.) 
 Instances In Among Other instances in which Equity 
 equity has cxei'cises jurisdiction for relief in the case 
 
 junsaiction J 
 
 UiOTeSs" of destroyed, lost, or suppressed deeds, relief 
 will be given in Equity where the plaintiff 
 
ACCIDENT. 41 
 
 avers that a deed relating to land has been tit- i- 
 
 either destroyed or concealed by the defend- 
 
 ant, but he (the plaintiff) knows not whether 
 it has been so destroyed, or whether it has 
 been only concealed ; for, there a Court of 
 Equity will make a decree (which a Court 
 of La.w cannot), that the plaintiff shall hold 
 and enjoy the land until the defendant shall 
 produce the deed, or admit its destruction. 
 (St. § 84.) 
 
 So if a deed concerning land is lost, and 
 the party in possession seeks a discovery, 
 and to be established in his possession under 
 it. Equity will afford relief. (St. § 84.) 
 
 2. A person may also come into Equity 2. jurisdic- 
 
 tion in cases 
 
 for payment of a lost bond ; because, until a ofio|t 
 recent period, no relief was given at Law, on 
 account of the want of a profert. (St. § 81, 
 82.) And besides, at Law, the defendant 
 had not the protection of the oath of the 
 plaintiff to the fact of the loss. Again, it is 
 often proper to grantrelief upon the terms of 
 the party giving a bond of indemnity ; and a 
 Court of Law could not insist on such a bond 
 as a part of the judgment; and, although it 
 has sometimes required the previous offer of 
 an indemnity, yet such an offer may be un- 
 satisfactory in ma,ny cases; for, in themean- 
 
 4* 
 
42 ACCIDENT. 
 
 Tit- I- time, the circumstances of the party to the 
 
 Cap. I. ' i ./ 
 
 bond of indemnity may undergo a great 
 
 change. (St. § 82.) 
 
 3. jurisdic- 3. Courts of Law could always enforce 
 
 tiou ill cases . ui 
 
 of lostuii- payment of money due on a lost negotiable 
 
 sealed secu- * "^ ^ 
 
 lities. jjo^g Qj. other negotiable unsealed security; 
 
 because no profert was necessary, and no 
 oj'er was allowed of such securities. Courts 
 of Equity, therefore, will not entertain a bill 
 for relief in such a case, unless there is an 
 offer of indemnity in the bill, constituting a 
 ground of jurisdiction. (St. §i85, 86.) And 
 Courts of Equity have no jurisdiction to 
 give relief on account of the destruction of 
 a bill of exchange, because there was always 
 a complete remedy at Law in such cases. 
 ( Wright V. Lord Maidstone, 1 K. & J. 701.) 
 
 4. Relief in 4. In the absence of any countervailing 
 
 cases of tlie 
 
 defective equity, relief will be granted by a Court of 
 
 execution ^ J J o j 
 
 or nou-exe- jjquity, in the case of a defective execution of 
 a mere power (a), where it is created by an 
 ordinary assurance, and where the defect is 
 not of the very essence of the power, and the 
 defective execution is in favor of a charity, 
 or a purchaser, or a creditor, or an intended 
 husband or a wife, or a legitimate child. And 
 
 (a) See the stat. 22 & 23 Vio. c. 35, s. 12, as to the 
 mo«le of eseoution of powers. 
 
 cution of 
 powers. 
 
ACCIDEHT. 43 
 
 the mere manifestation of an intention to J"- \ 
 
 execute the power, provided it clearly ap- 
 
 pears in writing, will be deemed a defective 
 execution of the power. 
 
 But Equity will not interpose in the ease 
 of a non-execution of a mere power; for 
 that would be depriving the donee of the 
 right of discretion in regard to the exercise 
 of the power. Nor will Equity support a 
 defective execution of a power, in favor of 
 the donee of the power, or of a husband 
 (except in the case of an intended husband), 
 father, or mother, or of a grandchild or more 
 remote relation, or of a mere volunteer, 
 except where a strict compliance with the 
 power has been impossible, from circum- 
 stances beyond the control of the donee; as 
 where the prescribed witnesses could not be 
 found; or where an interested person, having 
 possession of the deed creating the power, 
 has kept it from the party executing the 
 power, so that he could not ascertain the 
 formalities required. Nor can Equity dis- 
 pense with the regulations prescribed where 
 the power is created by Statute, at least 
 where they constitute the apparent policy 
 and object of the Statute, or with the consent 
 of persons whose consent is required. Nor 
 
44 ACCIDENT. 
 
 Tit. I. -will an execution by an absolute deed, instead 
 
 Cap. I. '' ' 
 
 of hj will, be supported ; as that would be 
 
 repugnant to the power; since it would not 
 be revocable like a will. 
 
 But where the power is coupled with a 
 trust, Equity will grant relief, even in case of 
 • the non-execution of the power ; because, in 
 this case, the donee was under an equitable 
 obligation to exercise it. (See, as to these 
 propositions respecting powers, St. § 94 — 
 98, 169—177 ; 2 Sugd. Pow. 7th ed. 88—175 ; 
 Toilet V. Toilet, 1 Lead. Cas. Eq. 2d ed. 184, 
 et seq. ; Harding v. Glyn, 2 Lead. Cas. Eq. 
 2d ed. 789, 811 ; and Smith's Compendium 
 of the Law of Property, 3d ed. 727—731.) 
 
(45) 
 
 CHAPTER II. 
 
 OF MISTAKE (fl). 
 
 A MISTAKE, as remediable in Equity, may tit. i. 
 
 Cap. II. 
 
 be defined to be an act which would not have 
 
 Definition 
 
 been done, or an omission which would not of mistake. 
 have occurred, but from ignorance, forget- 
 fulness, inadvertence, mental incompetence, 
 surprise, misplaced confidence, or imposi- 
 tion. 
 
 The following propositions appear to be 
 deducible from the cases on the subject : 
 
 I. Where the mistake is unilateral, and i. Mistake 
 
 made by the 
 
 the sufferer is the person by whom it was saflerer 
 made, relief will not be granted, unless there 
 is some circumstance which gives rise to a 
 presumption that there has been some un- 
 due influence, misrepresentation, imposition, 
 mental imbecility, surprise, or confidence 
 abused (see St. § 117—120, 133—135, 137, 
 138; Boughton v. Hutt, 3 D. & J. 501 ; Bent- 
 ley V. Machay, 31 Beav. 143); and even 
 where this is the case, Equity will not in- 
 
 (a) See tbe stat. 22 & 23 Vio. u. 35, s. 13, as to mis- 
 taken payments in ease of sales under povrers. 
 
46 MISTAKE. 
 
 Tit. l terfere as against a bond fide purchaser for 
 
 valuable consideration, without notice. (St. 
 
 § 139, and see Maxim VI. p. 21, ante.) 
 Mistake in In regard to mistakes in matters of Law, 
 
 a matter of ° 
 
 '='''• it is a maxim that ignorantia legis non ex- 
 
 cusat. (St. § 111—113, 116, 138, 140.) But 
 where the mistake is one of title, arising 
 from ignorance of a principle of Law of such 
 constant occurrence as to be understood by 
 the community at large, this is considered 
 sufficient to afford such a presumption as 
 above mentioned, so as to entitle the party 
 to relief. (See St. § 121—125, 128, 137.) 
 
 or in a mat- And in regard to mistakes in matters of 
 
 ter of fact. ° 
 
 fact, relief will be granted on the same pre- 
 sumption, where the mistake is unilateral, 
 and the fact was material to the act or con- 
 tract, and was not doubtful from its own 
 nature, and was a fact which would not be 
 ascertained by such diligence or care as is 
 usual in transactions of the like nature, and 
 of which the other party was under a legal 
 obligation to inform the mistaken person. 
 (See St. § 117, 118, 140, 141, 146—148, 150, 
 151.) 
 it?norance And ignorance of foreign Law is deemed 
 
 ol foreign ° ° 
 
 law. ignorance of fact ; because no person is pre- 
 
 sumed to know foreign Law. (St. § 140.) 
 
MISTAKE. 47 
 
 But ignorance, on the part of the vendor, tit. i. 
 of circumstances tending to enhance the ., "tt 
 
 ° vendor's 
 
 value of the property, of which the vendee ^ vSul''' 
 was aware, will not form a ground for relief, 
 where it is not a case of mutual confidence. 
 (St. § 149.) 
 
 II. Where the mistake is mutual, the ii- Mutual 
 
 ' mistake. 
 
 transaction will be binding; except it was 
 founded in a mutual surprise ; or the mistake 
 consists in supposing that the subject-matter 
 of the contract existed, when in reality it 
 was not in existence ; or the mistake con- 
 sists in one party supposing that he had 
 purchased something which the other did 
 not intend to sell (St. § 113, 134, 142, 143, 
 a, 144) ; or the mistake is the result of a 
 miscalculation by the defendant's agent in 
 favor of the defendant (Garpmael v. Powis, 
 10 Beav. 36); or by reason of the fact being 
 otherwise than was supposed, there is no 
 consideration to support the transaction 
 ( Cochrane v. Willis, 34 Beav. 359 ; Law Eep. 
 
 1 Ch. Ap. 58) ; or both parties were under 
 the impression that one of them was the 
 owner of property, which, in reality, be- 
 longed to the other (Cooper v. Phibbs, L. E. 
 
 2 Ap. Ser. (H. L.) 149). 
 
 III. In the ease of a compromise of "onSsesr 
 
48 MISTAKE. 
 
 Tit. I. doubtful rights, or of rights which are con- 
 
 sidered by the parties to be doubtful, if all 
 
 the parties are in a state of mutual ignor- 
 ance, or they are all acquainted with the 
 doubts which exist in their favor, the 
 compromise will be binding. But where 
 one or more of them is or are not aware 
 of the doubts existing in his or their fa- 
 vor, while the fact that such doubts exist;'', 
 is known to the other or others of them, 
 the compromise will not be binding (see 
 St. § 130, 131, 132; Lucy's Case, i D. M. 
 & Gr. 356 ; Stapilton v. Stapitton, 3 Lead. 
 Cas. Eq. 2d ed. 684, et seq.y, because, in 
 that case, there is room for the presumption 
 of surprise or confidence abused ; and the ^ 
 very nature of the transaction made it re- 
 quisite that all the parties should be on an 
 equality as regards knowledge or ignorance 
 of the doubts existing in their favor. 
 To render a family compromise binding, 
 there must be an honest disclosure, by 
 each party to the other, of all such ma- 
 terial facts known to them, relative to their 
 rights and title, as are calculated to influ- 
 ence the judgment in the adoption of the 
 compromise; and any advantage taken by 
 either of the parties of the known ignor- 
 
MISTAKE. 49 
 
 aiice of the other of such facts renders such J", i. 
 
 Cap. II. 
 
 compromise void in Equity. (^Smith v. Pin- 
 
 come, 3 M ao. & G. 659 ; Greenwood v. Green- 
 wood, 2 D. J. & S. 28 ; Brooke v. Lord Mostyn, 
 2 D. J, & S. 373.) . 
 
 IV. Where by mistake an instrument iv. Correc- 
 tion of a 
 inter vivos is not what the parties intended, mistake in 
 
 i ' a written 
 
 or there js a mistake in it other than a ortn"re|ari 
 mistake in law, or any acts necessary to *'^^'^*^- 
 give validity to the instrument have been 
 omitted, and the mistake is clearly made 
 out by admissible and satisfactory evidence, 
 or is admitted by an answer to a bill, or is 
 evident from the nature of the case, or from 
 the rest of the deed. Equity will rectify the 
 mistake (St. § 152, 157, 159, 166, 168, and 
 see Sugd. V. & P. ch. 3, sect. 1 1, pi. 2 ed. 10; 
 Lord Glehorchy v. Bosville, and Legg v. Gold- 
 wire, 1 Lead. Cas. Eq. 2d. ed. 1, et seq.; 
 Meadows v. Meadows, 16 Beav. 401 ; Murray 
 V. Parker, 19 Beav. 305; Torre v. Torre, 1 
 Sm. & Gif. 518; In re Morse's Settlement, 
 21 Beav. 174; Wright v. Goff, 22 Beav. 
 207; Wolterbeek v. Barrow, 23 Beav. 423; 
 Wilson V. Wilson, 5 Ho. of Lords, 40, 52 — 7, 
 59, 63, 71 ; Mostyn v. Mostyn, 5 Ho. of 
 Lords, 155; Fowler v. Fowler, 4 D. & J. 
 250 ; Earl of Bradford v. Earl of Bomney, 
 
 5 
 
50 MISTAKE. 
 
 (Tij- ij 30 Beav. 431 ; Garrard v. Frankel, 30 Beav. 
 
 445; Walker v. Armstrong, 8 D. M. & G. 
 
 531 ; Daniel v. Arkwright, 2 Hem. & Mil. 
 95 ; Earl of Malmesbury v. Countess of Mal- 
 mesbury, 31 Beav. 407; Scholefield v. Lock- 
 wood, No. 2, 32 Beav. 436 ; Harris v. Pep- 
 perell, L. E. 5 Eq. Cas. 1 ; Druiff v. Lord 
 Parker, L. E. 5 Bq. Cas. 131); except as 
 against a bond, fide purchaser for valuable 
 consideration, without notice (St. § 165, 2 
 Sp. 195), or other person having an Equity 
 equal to that of the plaintiff (St. § 176), 
 such as the issue in tail, or a remainder-man 
 in tail, where there is no Equity to affect the 
 conscience of such issue or remainder-man. 
 (St. § 178.) 
 
 But in order to enable the Court to rectify 
 an ante-nuptial settlement by striking out 
 a part, it must be proved that it contains 
 something which has been inserted by mis- 
 take, contrary to the intention of all the 
 parties. {Booke v. Lord Kensington, 2 K. & 
 J. 753, 764 ; Sells v. Sells, 1 Drew. & Smale, 
 42 ; Thompson v. Whitmore, 1 Johns. & Hem. 
 268 ; Elwes v. Elwes, 2 Gif 545.) And where 
 an instrument is substantially what the 
 parties intended, although so framed under 
 a mistaken view of the Law, the Court 
 
MISTAKE. 51 
 
 will not rectify the mistake. (St. § 113— ^tit. i. 
 
 115.) A bond to leave or convey property 
 
 has, however, been sometimes upheld in 
 Equity as an agreement defectively exe- 
 cuted. (St. § 136.) 
 
 A husband cannot sustain a suit to have 
 a settlement rectified where he executed it 
 with a knowledge of its contents, though 
 he gave notice before the marriage that he 
 should apply to the Court to have it recti- 
 fied. (Eaton V. Bennett, 34 Beav. 196.) 
 
 The Court of Chancery will not remedy 
 a defect or supply an omission in a deed in 
 favor of a stranger, where there is no con- 
 sideration, even in the plainest case, and 
 even when it has arisen from mere mistake, 
 and though the correction would not be 
 inconsistent with the deed. (2 Sp. 886.) 
 
 A voluntary deed cannot be reformed, ex- 
 cept with the consent of the donor. (Phillip- 
 son V. Kerry, 32 Beav. 628 ; Brown v. Kennedy, 
 33 Beav. 133, 147. But see Thompson v. 
 Whitmore, 1 Johns. & Hem. 268.) /d 7W^^ % 
 
 It should be observed, that where fhe 
 final instrument of conveyance or settle- 
 ment differs from the preliminary contract, 
 that very circumstance affords of itself some 
 ground for presuming an intentional change 
 
52 MISTAKE, 
 
 T"- 1- of purpose, unless, from some recital in it, or 
 from some attendant circumstances, it ap- 
 pears to have been intended to be merely in 
 pursuance of the original contract. (St. § 160.) 
 "When there are articles and a settlement 
 before marriage, as a general rule the settle- 
 ment alone can be looked to; if it is differ- 
 ent from the articles, it must be taken as 
 a new agreement. But if it purports to be 
 executed in pursuance of the articles, or 
 if there is clear and satisfactory evidence 
 showing that the discrepancy has arisen 
 from a mistake, the Court will reform the 
 settlement, and make it conformable to the 
 real intention of the parties. (2 Spence's 
 Bq. Jur. 140 ; Bold v. Hutchinson, 5 D. M. 
 & G. 558, 568.) If the articles are before 
 marriage and the settlement after marriage, 
 the articles are in effect the binding instru- 
 ment; and if the settlement gives estates 
 or interests different from those ■which the 
 Coui't would give on the construction of the 
 articles, the settlement will be reformed, as 
 between the parties and their representa- 
 tives and mere volunteers, but not as against 
 a purchaser for valuable consideration, with- 
 out notice. (2 Sp. 140, 141; Peachy on Settl. 
 132.) 
 
MISTAKE. 53 
 
 And as regards the admissibility of tlie tit. i 
 
 evidence, it is a rule of the Common Law, 
 
 independently of the Statute of Frauds, 
 that parol evidence is not admissible to dis- 
 annul, substantially add to, subtract from, 
 qualify, or vary a written instrument. (See 
 ' St. § 153, 158; and see also Sugd. V. & P. 
 eh. 3, sect. 8, pi. 2, 33, 26, &c., and sect. 11, 
 pi. 5, ed. 10.) But upon principle it would 
 seem that cases of accident, mistake, and 
 fraud, are (in many instances, at least) to 
 be deemed, in Equity, exceptions to this 
 rule. (St. 155, 156, 161, notes ; remarks of 
 Sir J. Eomilly, M. E., in Murray v. Parker, 
 19 Beav. 308.) 
 
 Y. Where an instrument is so general 
 in its terms as to release the rights of a 
 party to property, to which he was wholly 
 ignorant that he had any title, and which 
 was not within the contemplation of the 
 bargain, the Court confines the release to 
 what was intended to be released. (St. § 
 145.) 
 
 VI. Equity will relieve where an instru- 
 ment has been delivered up or cancelled, 
 under a mistake of a party, and in ignor- 
 ance of the facts material to the rights 
 under it. (St. § 167.) 
 
 5* 
 
54 MISTAKE. 
 
 Tit. I. YII. Equity will also supply defects in 
 
 the execution of powers, on the ground of 
 
 mistake, in the cases mentioned in the 
 prefeeding chapter under the head of Ac- 
 cident. 
 
 VIII. Equity will rectify a clear mistake 
 or omission in a will, if it is apparent on 
 the face of the will. But parol evidence is 
 generally inadmissible. It is stdmitted, 
 however, in certain cases of mistake in the 
 name or description of a devisee or legate^ 
 (See Jarm. on Wills, 361-3, Ed. 2; Wigram 
 on Wills, 51; Mostyn v. Mostyn, 5 Ho. of 
 Lords, 155; St. § 179, 180, 181 ; Doe d. Mis- 
 cocks V. Siscocks. Tud. Lead. CaiS. Eeal Prop. 
 819, 2d Ed ) -Z(^ ^': ' > ^-^^ ^^ f /w/ 
 
 IX. Equity will grant relief where a mis- 
 take in a written contract is fairly presu- 
 mable from the nature of the transaction. 
 And hence, where there has been a joint 
 loan to two or more obligors, and they are 
 only made jointly liable, the Court will 
 make the bond joint and several. (St. § 
 163—164; Wilson v. Wilson, 5 Ho. of Lords,. 
 40.) 
 
 fncalfa' -^- "^^ instrument may be entirely set 
 strumcnton aside on the ground of mistake or fraud. 
 of iiustake. (See St. § 161 ; Phillipson v. Kerry, 82 Beav. 
 
MISTAKE. 55 
 
 628 ; Price v. Ley, 4 Gif. 235.) And a vol- ^tit. i. 
 
 untary deed of gift may be ordered to be 
 
 cancelled on either of those grounds, and 
 the money ordered to bo given back to the 
 donor. (^Lister v. Hodgson, L. E. 4 Bq. Cas. 
 30.) And in 'cases within the Statute of 
 Frauds, it is an easier matter totally to avoid 
 an agreement, than to vary it; for, in the 
 former case, the Statute of Frauds has no 
 influence whatever; since "it does not say 
 that a written agreementshall bind, but that 
 an unwritten agreement shall not bind." 
 (Sugd. V. & P. ch. 3, s. 8, pi. 32, ed. 10.) 
 
(56 ) 
 
 CHAPTER III. 
 
 OF ACTUAL FRAUD. 
 
 Tit. I. 
 Cap. m. 
 
 Unsafe to 
 define fraud 
 in general^ 
 or the 
 extent of 
 remedial 
 equity on 
 the ground 
 of fraud. 
 
 Beiinition 
 of actual 
 fraud. 
 
 .Jurisdiction 
 in cases of 
 fraud. 
 
 The modes of fraud are infinite ; and " it 
 has been said that Courts of Jlquity have, 
 very wisely, never laid down, as a general 
 proposition, what shall constitute fraud, or 
 any general rule, beyond which they will 
 not go, upon the ground of fraud, lest other 
 means of avoiding the equity of the Courts 
 should be found." (St. § 186.) In accord- 
 ance with the spirit of this remark, the 
 writer abstains from attempting to give a 
 definition of fraud in general. It is usually 
 and accurately divided, however, into two 
 large classes, designated, defined, and treated 
 of under the names of Actual Fraud and 
 Constructive Fraud. 
 
 An actual fraud may be defined to be 
 something said, done, or omitted by a per- 
 son with the design of perpetrating what 
 he must have known to be a positive fraud. 
 
 A Court of Equity will not entertain juris- 
 diction to set aside a will obtained by fraud, 
 
ACTUAL FRAUD. 57 
 
 or establish a will suppressed by fraud ; for ^^-^jj 
 
 in such cases, the proper remedy is exclu- 
 
 sively vested in the Court of Probate. (St. 
 § 184, and note; 1 Wms. on Executors, 5th 
 ed. 341; 2 Steph. Cora. 202—5; Jones v. 
 Gregory, 4 Gif. 468; 2 D. J. & S. 83.) But 
 where the fraud does not go to the whole 
 will, but only to some particular clause, or 
 where the fraud is in unduly obtaining the 
 consent of the next of kin to the probate, 
 Courts of Equity will lay hold of these cir- 
 cumstances to declare the executor a trustee 
 for the next of kin. (St. § 440.) 
 
 In a great variety of other cases, fraud is 
 cognizable at Law ; as in cases of fraud in 
 the sale of chattels personal : and in some 
 of these cases adequate relief can be, and 
 constantly is, obtained at Law. (St. § 184, 
 and note.) 
 
 It is a rule as well in Courts of Law as Evidence of 
 
 fraud. 
 
 in Courts of Equity, that fraud is not to be 
 presumed. But, on the other hand, neither 
 at Law nor in Equity is positive proof of 
 fraud indispensably necessary. A Court of 
 Equity, however, will act on a lower degree 
 of proof than that which would be required 
 in a Court of Law. (See St. § 190.) 
 
 It would be impossible, and unnecessary 
 
58 ACTUAL FRAUD, 
 
 Tit. L jf jt -wero possible, to enumerate all the dif- 
 
 feront instances in which Courts of Equity 
 
 will grant relief on the ground of actual 
 fraud. We shall only notice a few of them 
 under these two heads : 
 Division of I. Of frauds which receive that denomina- 
 
 actual 
 
 frauds. tjon from a consideration of the conduct of 
 the guilty parties, irrespective of any pe- 
 •culiarity in the condition of the injured par- 
 tics. 
 
 II. Of frauds which receive that denomi- 
 nation mainly or in a great measure from a 
 consideration of the peculiar condition of 
 the parties upon whom they are practised. 
 
 I. Firstciass I. — 1. Misrepresentation, whether by 
 
 of actual 
 
 frauds. word Or deed, constitutes fraud. (St. § 191, 
 Boutation. 192; Jennings v. Broughton, 5 D. M. & G. 126; 
 Kay V. Smith, 21 Beav. 522.) Equity will 
 not interfere, however, if the misrepresenta- 
 tion was in a trifling or immaterial point, or 
 if no injury arose from it. (St. § 191, 195, 
 196, 203 ; Pulsford v. Bichards, 17 Beav. 96.) 
 Por, in the first case, the evils of litigation 
 would be far greater than the injury occa- 
 sioned ; and, as to the second case. Courts 
 of Equity do not profess to punish guilt, 
 but to redress wrongs. And Equity will 
 not interfere if the party was not misled 
 
ACTUAL FKAUD. 59 
 
 by the misrepresentation (St. § 202; Nelson cl"ni 
 
 V. Stacker, 4 D. & J. 455); because, in that 
 
 case, he was not injured by it. Nor will 
 the Court interpose if the misrepresentation 
 was vague and inconclusive (St. § 192); or 
 if it merely amounted to the common lan- 
 guage of puffing and commendation of things 
 sold (St. § 291); or if it was in a matter of 
 opinion or fact, equally open to the inquiry 
 of both parties, and in regard to which nei- 
 ther could be presumed to trust the other 
 (St. § 191, 197, 198); or if the party injured 
 may properly impute the loss to a want of 
 ordinary care or discretion on the part of 
 himself or his agents. (St. § 199, 200 a; but 
 see Beynell v. Sprye, 1 D. M. & G. 656, 710;) 
 For, the Court does not sit to redress 
 injuries which the injured parties, by ordi- 
 nary and proper care, could have prevented. 
 It is no part of Equity Jurisprudence to 
 encourage carelessness. So great, however, 
 is the confidence which is naturally reposed 
 by a client in his solicitor, and so important 
 is it to guard it against abuse, that, where 
 a solicitor induces his client to execute a 
 deed upon false and plausible repi*esenta- 
 tions, the Court will order the deed to be 
 delivered up to be cancelled. (JTorley v. 
 
60 ACTUAL FRAUD. 
 
 ca'p""'!!! '^°°^^> ^ ^'^- ^^^'' Ogilvie V. Jeaffreson, 2 
 ''— ' Gif. 353.) 
 
 Misrepresentation is a ground of relief, 
 whetiier the party who made the assertion 
 or intimation knew it to be false, or made it 
 without knowing whether it was true or 
 false. (St. § 193 ; Pulsford v. Richards, 17 
 Beav. 95 ; Rawlins v. Wickham, 1 Gif. 355 ; 3 
 D. & J. 304.) So that if a person, whether 
 wilfully or not, makes a false representation 
 to another, with a reasonable ground for sup- 
 posing that he or a third person would act 
 upon such representation, and he or such 
 third person does act upon it, and is misled 
 thereby, the person misleading will be made 
 answerable for it. {Hutton v. Rossiter, 7 D. 
 M. & G. 9, 23, 24; Slim v. Groucher, 2 Gif. 
 37; 1 D. P. & J. 518; Barry y. Oroskey, 2 
 Johns. & II. 1.) And where a person has 
 been induced to enter into a eoutraet by 
 a material misrepresentation of the other 
 party, he is entitled to have the contract set 
 aside, and not merely to have the repre- 
 sentation made good. {Rawlins v. Wickham, 
 1 Gif. 355; 3 D. & J. 304; Trail v. Baring, 4 
 Gif 485 ; Charlesworth v. Jennings, 34 Beav. 
 96.) 
 
 A contract induced by fraud is not void, 
 
ACTUAL FRAUD. 61 
 
 but only vaidable at the option of the party c^"jjj 
 
 defrauded ; and though the party who was 
 
 guilty of the fraud cannot enforce it, yet 
 
 other persons may, in consequence of it, 
 
 acquire interests and rights which they may 
 
 enforce against the party defrauded. (^Oakes 
 
 V. Turquand, L. E. 2 Ap. Ser. 325, 346.) 
 
 A person cannot avail himself of what has 
 
 been obtained by the fraud of another, unless 
 
 he not only is innocent of the fraud, but has 
 
 given some valuable consideration. (^Schole- 
 
 fieU V. Templer, 4 D. & J. 433.) 
 
 2. If a person conceals facts and circum- 2. Conceal- 
 ment, 
 stances which he is under some legal or 
 
 equitable obligation to communicate to the 
 other, it amounts to a fraud for which Equity 
 will grant relief. (St. § 204, 207, 215, 217 
 —220 ; 2 Sp. 765 ; Pulsford v. Bichards, 17 
 Beav. 94 — 6.) As, if a vendor sells an es- 
 tate, knowing that he has no title to it, or 
 that there are incumbrances on it, of which 
 the purchaser is ignorant (St. § 208) ; or if 
 the insured does not communicate to the 
 underwriters all facts and circumstances 
 which increase the risk. (St. § 216.) 
 
 But a purchaser is not bound to commu- 
 nicate his knowledge of the value of the pro- 
 perty tp the vendor (St. § 207, note) ; for it 
 
 6 
 
62 ACTUAL FRAUD. 
 
 Tit. I. is the business of the vendor to know and 
 
 Cap. III. 
 
 — =- sufficiently to estimate the worth of his own 
 property. Thus, if A., knowing that there 
 is a mine in the land of B., of which he 
 knows B. to be ignorant, should conceal his 
 knowledge of the fact, and enter into a 
 contract to purchase the estate of B. for a 
 , price which the estate is worth without 
 considering the mine, the contract would be 
 good. (St. § 205.) 
 
 In many cases, the maxim caveat emptor 
 is applied; and unless there is some mis- 
 representation or artifice to disguise the 
 thing sold, or some warranty as to its cha- 
 racter- or quality, the put-chaser is bound, 
 notwithstanding there may be material in- 
 trinsic defects in it, known to the vendor, 
 and unknown to the purchaser. (St. § 212.) 
 In foro conscientice, each party is bound 
 to communicate to the other his knowledge 
 of all material facts, not discoverable by the 
 other, or of which he knows the other to 
 be ignorant. For this is required by the 
 golden ^axim, that we should do unto 
 others as we would that they should do unto 
 us. But if Equity were to attempt to enforce 
 the observance of, so broad a rule, a far 
 greater inconvenience would ensue than that 
 
ACTUAL FRAUD. 63 
 
 which is now experienced. For it would 
 often be a matter of doubt with the party 
 wronged, whether the other was really aware 
 of the defect or advantage which he did not 
 disclose. And, frequently, that could only 
 be ascertained from his admissions or de- 
 nials in a suit. So that, in order to de- 
 termine this, a bill seeking relief against 
 fraud would often be filed in total uncer- 
 tainty as to the existence of that knowledge, 
 which was of the very essence of the sup- 
 posed fraud, and absolutely necessary to be 
 proved before any ground for relief could 
 be said to exist. And in many cases there 
 would be the same diflSculty in ascertaining 
 whether the defect or advantage, admitting 
 it to be known to the one party, was or was 
 not disclosed by him to the other. 
 
 To draw a distinction which would, per- 
 haps, give as much effect to the principle of 
 sound morals, as would be compatible with 
 avoiding frequent and fruitless litigation and 
 the encouragement of carelessness and negli- 
 gence, the true course would seem to be, to 
 hold that Equity will grant relief, if a person 
 does not disclose any material fact, which, 
 from the nature of tho^case, he must have 
 known, and which the other party could not 
 
 Tit. I. 
 Cap. hi. 
 
3. Inade- 
 quacy. 
 
 64 ACTUAL FRAUD. 
 
 CAv'iii ^® expected to discover with the care ordi- 
 narily used in similar transactions. 
 
 3. Mere inadequacy of price, or any other 
 inequality in the bargain, does not constitute 
 ty itself a ground to avoid it. (St. § 244 ; 
 Abbot V. Sworder, 4 De G. & S. 448 ; Sar- 
 rison v. Guest, 6 D. M.>& G. 424.) For the 
 value of things is always fluctuating, and 
 dependent on numberless circumstances. 
 Besides, a man may be induced by difficul- 
 ties or exigencies, or for other reasons, to 
 part with his property at a particular time, 
 for less than that for which another would 
 have sold it. (St. § 545.) And perhaps the 
 lowness of the price may have been the only 
 inducement to the purchaser to make the 
 purchase; and he may have simply apcepted 
 the proposals of the vendor, instead of being 
 the originator of the transaction, or of being 
 actively concerned in negotiating it, like a 
 man whose design is to gain a fraudulent 
 advantage over another. 
 
 Still, however, there may be such an un- 
 conscionableness or inadequacy in the bar- 
 gain, as to shock the conscience, and amount 
 to conclusive evidence of imposition or some 
 undue influence : and in such a case. Courts 
 of Equity will interfere on the. ground of 
 
ACTUAL FRAUD. 65 
 
 fraud. And where there are other ingre- (J^-jlv 
 
 dienta of a suspicious nature, gross inade- 
 
 quacy must furnish the most vehement pre- 
 sumption of fraud. (St. § 246 ; see remarks 
 of Lord Cran worth, C, in Harrison v. Guest, 
 6 D. M. & G. 424.) As, if proper time for 
 deliberation is not allowed the party inj urcd ; 
 if he is importunately pressed ; if those in 
 whom he placed confidence make use of 
 strong persuasion ; if he is suddenly drawn 
 into an act, without being fully aware of the 
 consequences; if he is not permitted to con- 
 sult disinterested friends or counsel, before 
 he is called upon to act, in circumstances of 
 sudden emergency or unexpected right and 
 acquisition ; or if he is an illiterate person, 
 and advantage has been taken of his neces- 
 sities ; or if he is a person of weak under- 
 standing. (St. § 251 ; C'ockell v. Taylor, 15 
 Beav. 103, 115 ; Longmate v. Ledger, 2 Gif. 
 157 ; Clark v. Malpas, 31 Beav. 80 ; Baker 
 V. Monk, 33 Beav. 419.) But Equity will not 
 relieve where the parties cannot be place'fl in 
 statu quo. Such relief, for instance, will not 
 be given in the case of marriage settlements; 
 inasmuch as the Court cannot unmarry the 
 parties. (St. § 250.) 
 
 Where a purchase is set aside for inade- 
 6* 
 
66 ACTUAL FRAUD. 
 
 Tit. L quacy of consideration, the conveyance will 
 
 be ordered to stand as a security for what 
 
 has been advanced. (Longmate v. Ledger, 2 
 Gif 157; Douglas v. Gulverwell, 3 Gif. 251; 
 Baker v. Monk, 33 Beav. 419.) 
 
 Deeds of the nature of family arrange- 
 ments are exempted from the rules as to the 
 adequacy of the consideration applicable to 
 other deeds; the consideration in such cases 
 - being compounded partly of value and partly 
 of natural affection; and it is not necessary 
 that there should be any rights in dispute, in 
 order to uphold them. (JPersse v. Persse, 7 01. 
 & Pin. 279 ; Williams v. Williams, 2 Dr. & 
 Sm. 378 ; L. E. 2 Oh. Ap. 294. As to deeds 
 of this nature, see also Stapilton v. Stapilton, 
 2 Lead. Gas. Eq. 2d ed. 684 et seq.; Dims- 
 dale V. Dimsdale, 3 Drew, 556, 569 — 571 ; 
 Greenwood v. Greenwood, 2 D. J. & S. 28.) 
 ofcoifsen'tto ^' ^^^''^ S^^^s and legacies are bestowed 
 ainarriage. on persous, ou Condition that they shall 
 marry with the consent of parents, guar- 
 dians, or other confidential persons. Courts 
 of Equity will not suffer the manifest object 
 of the condition to be defeated by the frau- 
 dulent, corrupt, or unconscientious refusal 
 of the parties whose consent is required to 
 the marriage. (St. § 257.) 
 
ACTUAL FRAUD. 67 
 
 II. "With regard to frauds which receive c^™-in. 
 that denomination mainly or in a great mea- jj ^^^^ 
 Bure from the consideration of the peculiar alufai' 
 condition of the injured parties — 
 
 1. In the case of contracts or other acts, ^o°g° f®'^' 
 however solemn, of persons who are idiots, ^in™" 
 lunatics, or otherwise of unsound mind, 
 wherever, from the nature of the transaction, 
 
 there is not evidence of entire good faith, or 
 it is not seen to be just in itself or for the 
 benefit of those persons. Courts of Equity 
 will set it aside, or make it subservient to 
 their just rights and interests. But where 
 there is entire good faith, and the contract 
 or other act is for the benefit of such per- 
 sons, as to provide them with necessaries, 
 there Courts of Equity will uphold it, as 
 well ap Courts of Law. (St. § 227—229 ; 
 Manly v. Bewicke, 3 K. & J. 342.) 
 
 2. If a person, at the time of entering into 2. on in- 
 
 . toxlcated 
 
 a contract or doing an act, was so exces- pe^ons. 
 sively drunk as to be deprived of the use of 
 his understanding ; or if there was any 
 contrivance or management to lead him 
 to drink, or some unfair advantage taken 
 of his intoxication, Courts of Equity will 
 not lend their assistance to the person who 
 obtained an agreement or deed from him, 
 
68 ACTUAL FRAUD. 
 
 Tit. I. when SO intoxicated, but will assist him in 
 
 Cap. III. ' 
 
 getting rid of it, on account of the fraud 
 
 of the other party in obtaining such agree- 
 ment or deed from a fterson in such a 
 state or by such means. (See St. § 230., 231, 
 232.) 
 
 3. On per- 3. The Contracts and other acts of persons 
 
 sons of weak ' 
 
 understand- ^,}jq are of weak understanding will be held 
 void in Equity, if the nature of such con- 
 tracts or other acts justifies the conclusioa 
 that the party has been imposed on, circum- 
 vented, or overreached by cunning, arti- 
 fice, or undue influence. (St. § 234 — 238 ; 
 Longmate v. Ledger, 2 Gif. 157; Nottidge 
 V. Prince, 2 Gif 246.) But to constitute 
 undue influence, there must be either fraud 
 or coercion by fear; and the burden of 
 proving that the will of a person of sound 
 mind was executed under undue influence 
 is on the party who alleges it. {Boyse v. 
 Bossborough, 6 H. L. 2, 33, 34, 49.) 
 
 4. On per- 4. Where a party is not a free agent, and 
 
 sons who 4. ./ o J 
 
 asente'^'^^^ is not cqual to protect himself, a Court of 
 Equity will protect him. (a) Hence, Equity 
 
 (a) With the most unfeigned respect and deference, the 
 writer humbly submits that this principle ought, in accord- 
 ance with reason and justice, to have been applied to the 
 case of Re Metcalfe's Trusts, 2 D. J. A S. 122, the case 
 of a professed nun. 
 
 agents 
 
ACTUAL FRAUD. 69 
 
 will relieve against acts done under duress, f,^"-jjV 
 or under the influence of threats, or of real , ^ — r 
 
 ' but under 
 
 or imaginary terrors, calculated to deprive f^^^^^' " ™ 
 a person of free agency. (St. § 239 ; Boyse v. 
 Rossborough, 6 Ho. of Lords, 2, 49 ; Williams 
 •v.Bayley, L. R 1 Ap. Ser. 200.) And it 
 watches with the utmost jealousy all con- 
 tracts made by a person while under ira- or in prison, 
 prisonmentj and if there is the slightest 
 ground to suspect oppression or imposition, 
 it will set the contract aside. And, in like 
 manner, circumstances of extreme necessity or extreme 
 
 ' •' necessity. 
 
 and distress may so entirely overpower free 
 agency, as to justify the Court in setting 
 aside a contract on account of some op- 
 pression or fraudulent advantage attendant 
 on it. (St. § 239.) 
 
 5. Infants may, even at Law, bind them- 5. onin- 
 selves in some cases, by contracts for neces- 
 saries suitable to their degree and quality, or 
 by acts which the law requires them to do. 
 But, in general, where a contract may be 
 either for the benefit or to the prejudice of 
 an infant, he may avoid it, as well at Law 
 as in Equity. Where it can never be for 
 his benefit it is utterly void (a). 
 
 {a) Smith's Manual of Common Law, 3d Ei. 57, 58, 
 St. § 240, 241. 
 
70 ACTUAL FRAUD. 
 
 Tit. I. It may here be observed that when one 
 
 Cap. hi. ■' 
 
 „ — - of two innocent persons must suffer by the 
 
 Case wbere ^ ■' 
 
 iniiocenT" fraud of a third person, that person shall be 
 
 «St"uffer. t^'® sufferer, who, by his conduct, however 
 
 innocently, put it in the power of the third 
 
 person to commit the fraud. (Adselts v. 
 
 Biver, 33 Beav. 52.) 
 
(71) 
 
 CHAPTEE IV. 
 
 OF CONSTRUCTIVE FRAUD. 
 
 Constructive frauds are acts, statements, tit. i. 
 
 ' ' Cap. IV. 
 
 or omissions, which operate as virtual frauds „ rrr 
 on individuals, or, if generally permitted, 
 would be prejudicial to the public welfare, 
 ■ and are not clearly resolvable into mere 
 accident or mistake, and yet may have been 
 unconnected with any selfish or evil design^ 
 or may amount, in the opinion of the person 
 chargeable therewith, to nothing more than 
 what is justifiable or allowable. 
 
 The cases which will be noticed in the Four classes 
 
 of construc- 
 
 present Chapter, may be arranged in four *'™ frauds: 
 classes. 
 
 I. Eelief is granted, on the ground of con- 1. Fraudson 
 structive fraud upon public policy, against policy- 
 agreements, provisions, and transactions, 
 which, although they may not operate as 
 frauds upon individuals, would, if generally 
 permitted, be prejudicial to the welfare of 
 the community. _Thus, 
 
 1. Marriage brokage contracts, which are 
 
72 
 
 CONSTRUCTIVE FRAUD. 
 
 Tit. I. 
 Cap. IV. 
 
 1. Marriage 
 
 brokagc 
 
 contracts. 
 
 2. Agree- 
 ments to 
 iutluence 
 testators. 
 
 8. Contracts 
 to facilitate 
 marriages. 
 
 agreements whereby a party engages to give 
 another a remuneration, if he will negotiate 
 a marriage for him, are void, as tending to 
 introduce matches which are ill-advised, and 
 not based on mutual affection, and therefore 
 against public policy. And they are so ut- 
 terly void, that they are deemed incapable 
 of confirmation; and money paid under 
 them may be recovered back again, in a 
 Court of Equity, whether the marriage is 
 an equal or an unequal one. (St. § 260 — 
 263; 2 Lead. Cas. Eq. 2d ed. 178 et 
 seq.) 
 
 2. The same rules are applied to bonds 
 and other agreements entered into as a re- 
 ward for using influence over another, to 
 induce him to make a will for the benefit 
 of the obligor (St. § 265) ; for such con- 
 tracts encourage a spirit of artifice and 
 scheming, most prejudicial to the moral tone 
 of those in whom it exists; and they tend 
 to deceive and injure others. 
 
 3. On a similar ground, secret contracts 
 made with parents, or guardians, or other 
 j)erson8 standing in a peculiar relation to 
 one of the parties whereby, on a treaty of 
 marriage, they are to receive a remuneration 
 for promoting the marriage or giving their 
 
CONSTRUCTIVE FEAUD. 73 
 
 consent to it, are held void. fSt. S 266, 267 ; J"- ^v 
 2 Lead. Gas. Eq. 2d ed. 178 et seq.) 
 
 4. On the other hand, a contract is void, 4. Contracts 
 
 or condi- 
 
 if it is expressly in restraint of marriage tio^s in. 
 
 '^ •' " restraint of' 
 
 generally, or if it is so restricted that it is marriage. 
 probable that it may virtually operate in 
 restraint of marriage generally (see St. § 
 274, 276—283; Scott v. Tyler, 2 Lead. Gas. 
 Eq. 2d ed. 105, 19S et seq.): as, that a 
 woman shall not marry a man who has not 
 an estate of 500Z. a year (St. § 280), or 
 shall not marry till 50 years of age, or shall 
 not marry any person residing in the same 
 town, or any person who is a clergyman, a 
 physician, or a lawyer, or any person except 
 of a particular trade or occupation (St. § 
 283) (a). 
 
 5. So. contracts and conditions in general 5. contracts 
 
 ° or condi- 
 
 restraint of trade are void, as tending to *e™rilnt 
 discourage industry, enterprise, and just »'*™*^- 
 competition. But a person may be re- 
 strained from carrying on trade in or within 
 a certain distance from a particular place, or 
 with particular persons, or for a reasonable 
 
 (a) As to conditions, conditional limitations, and spe- 
 cial limitations in restraint of marriage, see the writer's 
 "Compendium of the Law of Real and Personal Prop- 
 erty," 3d ed., pp. 79—96 ; 2 Lead. Cas. Eq. 2d ed. 178 
 et sej. 
 
 7 
 
74 CONSTRUCTIVE FRAUD. 
 
 Ca"'iv I'l^itcd time. And a person may lawfully 
 ■ — sell a secret in his trade or business, and 
 restrict himself from using the secret. (St. 
 § 292; Benwell v. Inns, 24 Beav. 307; Sarnies 
 V. Parsons, 32 Beav. 328.) 
 reSfo"n to ^- Where, pending a bill in Parliament, 
 Parliament. ^^^ agreement is entered into to produce a 
 false impression, or to mislead or suppress 
 inquiry, or to withdraw public opposition 
 thereto, it will be held void as a fraud upon 
 Parliament, as well as upon the public at 
 large. (St. § 293 a.) 
 for'pubiio'^ 7. Contracts for the buying, selling, or 
 offices. procuring of public offices are void, as tend- 
 ing to introduce into public offices persons 
 who are unfit for them in respect of char- 
 acter and other qualifications. (St. § 294, 
 295.) 
 *: Sup^res- g. go are agreements for the suppression 
 '■""eedings. °^ Criminal prosecutions (St. § 294), as tend- 
 
 SlOll 
 
 crir 
 proi 
 
 ing to weaken the beneficial preventive in- 
 fluence of the law, by diminishing the cer- 
 tainty of punishment, 
 t' aud^o^"^ ^' ^° ^^^ contracts which have a tendency 
 erations'!'**" to encouragc champerty (St. § 294; Heynell 
 V. Sprye, 1 D. M. & G. 600), and agreements, 
 bonds, and securities founded on corrupt 
 considerations, that is, on the commission 
 
CONSTRUCTIVE FRAUD. 75 
 
 of what is contrary to the moral or muni- f?'",^ 
 
 eipal Law, or on the evasion thereof. (St. 
 
 § 294 — 297.) And where contracts are in- 
 tended to carry out an immoral purpose (as 
 in the case of a house let for a brothel), everj 
 though that purpose do not appear on the 
 face of the instrument, none of the stipula- 
 tions comprised therein will be enforced. 
 {Smith V. White, L. E. 1 Eq. Cas. 626.) 
 
 Wherever any contract or conveyance is pisUnotion 
 
 •^ •' between 
 
 void, either by a positive Law or upon prin- voldaWe 
 ciples of public policy, it is deemed iricapa- as"'?ega'as°' 
 bio of confirmation ; it being a maxim, Quod tion. 
 ab initio non valet, in tractu temporis non con- 
 valescit. But where it is merely voidable, 
 or turns upon circumstances of undue ad- 
 vantage, surprise, or imposition, there, if it 
 is deliberately and upon full examination 
 confirmed by the parties, it will be valid. 
 (St. § 306.) 
 II. Where a reasonable confidence is re- ?i- Frauds 
 
 ID the case 
 
 posed in another person, or a peculiar influ- ?' fhe^™^. 
 ence is possessed by him in consequence of j^iauons 
 standing in a confidential relation, arid he ° ~ 
 makes use of that confidence or that influ- 
 ence to obtain an advantage to himself at 
 the expense of the party confiding in him 
 or under his influence, he will not be per- 
 
76 
 
 CONSTEUCTIVE FRAUD. 
 
 Tit. I. 
 Cap. IV. 
 
 1. Parent 
 or person 
 stan^ng 
 in loco 
 parentis, or 
 relative 
 having in- 
 fluence. 
 
 mitted to retain any such advantage, how- 
 ever unimpeachable the transaction would 
 have been, if no such confidence had been 
 reposed, or no sach confidential relation had 
 existed, (ffuguenin v. Baseley, 2 Lead. Cas. ■ 
 Eq. 2d ed. 462 et seq. ; Sharp v. I/each, 31 
 Beav. 491 ; Brown v. Kennedy, 33 Beav. 133; 
 see also Uliodes v. Bate, L. E. 1 Ch. Ap. 252; 
 Tate V. Williamson, L. E. 1 Eq. Cas. 528; 2 
 Ch. Ap. 55.) Thus, 
 
 1. Contracts and conveyances whereby 
 benefits are secured by children to their 
 parents or to persons who stand in loco pa- 
 rentuni, or dispositions made by young per- 
 sona in favor of their relatives who have 
 an influence over them, if not entered into 
 with scrupulous good faith, and reasonable, 
 under the circumstances, will be set aside, 
 unless third persons have acquired an inter- 
 est under them. (St. § 309; Soghton v. 
 Hoghton, 15 Beav. 278; Espey v. Lake, 10 
 Hare, 260 ; Wright v. Vanderplank, 2 K. & J. 
 1 ; 8 D. M. & G. 133 ; Dimsdale v. Dimsdale, 
 8 Drew. 555, 557, 577; Baker v. Bradley, 
 7 D. M. & G. 597, 620; Potts v. Surr, 34 
 Beav. 542; Berdoe v. Dawson, 34 Beav. 603; 
 Sercombe v. Sanders, 34 Beav. 382; Cham- 
 bers V. Crabbe, 34 Beav. 457.) And where 
 
CONSTRUCTIVE FRAUD. 77 
 
 a child, recently after attaining majority, ^''"'•j^ 
 
 makes over property to the father without 
 
 consideration, or for an inadequate consider- 
 ation, Equity will require the father to be 
 able to show that the child was really a free 
 agent, and had adequate and independent 
 advice. {Savery v. King, 5 Ho. of Lords, 627, 
 655 ; Bury v. Oppenheim, 26 Beav. 594 ; Davies 
 V. Davies, 4 Gif. 417.) And if an estate held 
 in trust for a father for life, the remainder to 
 his so^ in fee, is sold by the father and son 
 immediately on the son coming of age, and 
 the whole purchase-money is paid to the 
 father, there, if the assistance of the Court 
 is required by the purchaser' to complete the 
 transaction, its straightforwardness must be 
 proved. {Hannah v. JSodgson, 30 Beav. 19.) 
 
 2. During the existence of guardianship, 2. Guardian, 
 the relative situation of the parties occasions 
 a general inability to deal with each other. 
 And Courts of Equity will not permit trans- 
 actions between guardians and wards to 
 stand, even when they have occurred after 
 the minority has ceased, if the intermediate 
 period is short ; especially if all the duties 
 attached to the office have not ceased, or if 
 the estate still remains in some sort under 
 the control of the guardian ; unless the eir- 
 
 7* 
 
78 CONSTRUCTIVE FRAUD. 
 
 Tit. I. cumstances demonstrate the fullest deliber- 
 
 Cap. IV. 
 
 ation on the part of the ward, and the most 
 
 absolute good faith on the part of the guar- 
 dian. (St. § 317—320; Wright v. Vander- 
 plank, 2 K. & J. 1.) 
 
 But when the guardianship has entirely 
 ceased, and a fair and full settlement of all 
 transactions growing out of it has been 
 made, and a suflScient time has intervened 
 to allow the ward to feel completely inde- 
 pendent of the guardian ; there is then no 
 objection even to a bounty being conferred 
 upon the latter. (St. § 320.) 
 3. Quasi 3. The same principles are applied to per- 
 
 guardiaDS, '■ ^ ^ '■ ^ 
 
 or mSters ^'^^^ Standing in the relation of quasi guar- 
 oi reUgion. (jj^ns. Or confidential advisers, or ministers 
 of religion {Nottidge v. Prince, 2 Gif. 246), 
 and to every case where influence is ac- 
 quired and abused, where confidence is 
 reposed and betrayed. (Smith v. Kay, 7 
 Ho, of Lords, 751, 771, 778—9; Brown v. 
 Kennedy, 33 Beav. 133 ; St. § 319.) 
 i. soUcitore. 4. A solicitor is not incapable of contract- 
 ing with his client; but, as the relation must 
 » -give rise to great confidence in the solicitor, 
 or to very strong influence over the client, 
 the relation must be dissolved before the 
 contract, or the whole onus of proving the 
 
CONSTETJCTIVE FRAUD. 79 
 
 fairness and propriety of the transaction will ^^- ^^ 
 
 be thrown on the solicitor, or he must show 
 
 that the client had suflBcient advice and 
 assistance to relieve him from the pressure 
 arising from the relation of solicitor and 
 client, and that he has taken no advantage 
 of his professional position, but that he has 
 done as much to protect the client's interest 
 as he would have done in the case of the 
 client dealing with a stranger. (Sugd. Con- 
 cise View, 548 ; Story's Bq. Jur. § 310—313; 
 Holman v. Loynes, 4 D. M. & G. 270; Tom- 
 son V. Judge, 3 Drewry, 306 ; Savery v. King, 
 5 H. L. Cas. 627, 655—6 ; Waters v. Thorn, 
 22 Beav. 547 ; Spencer v. Topham, lb. 578 ; 
 Cowdry v. Day, 1 Gif 316; Gresley v. Mous- 
 ley, 1 Gif. 450 ; 4 D. & J. 78 ; Pearson v. Ben- 
 son, 28 Beav. 598 ; Gibhs v. Daniel, 4 Gif 1.) 
 And a solicitor who is an agent for a sale 
 cannot become the purchaser without fully 
 explaining to the parties interested all the 
 circumstances of the sale and of the value 
 of the property; because his duty and his 
 interest are in conflict. (In re Bloyes' Trust, 
 1 Mae. & G. 494, 497.) And if a solicitor 
 can show that he is entitled to purchase, 
 yet if, instead of openly purchasing he pur- 
 chases in the name of a trustee or agent. 
 
80 CONSTRUCTIVE FKAUD. 
 
 Tit. I. without disclosing the fact, no such pur- 
 cap. rv. o ' i 
 
 chase can stand. {Lewis v. Millman, 3 H. 
 
 L. Cas. 630.) 
 
 As a general rule, a solicitor shall not ac- 
 cept a gift, or, in any way whatever, in 
 respect of the subject of any transaction 
 between him and his client, make a gain to 
 himself at the expense of his client, beyond 
 the amount of the just and fair professional 
 remuneration to which he is entitled. (4 
 Cruise T. 32, c. 26, § 35 ; Story's Eq. Jur. 
 § 312; Moss v. Bainbrigge, 18 Beav. 478; 6 
 D. M. & G. 292 ; Tomson v. Judge, 3 Drewry, 
 306 ; Re Holme's Estate, 3 Gif 337 ; Nanney 
 V. Williams, 22 Beav. 452 ; Walker v. Smith, 
 29 Beav. 394; Bank of London v. Tyrrell, 
 and Tyrrell Y. Bank of London, 27 Beav. 273; 
 10 H. L. Cas. 26 ; O'Brien v. Lewis, 4 Gif. 
 221.) On the above principle, an agreement 
 on the part of a client to allow a solicitor a 
 commission of so much per cent, on a fund 
 in court, as a remuneration for recovering 
 the fund or employing another solicitor to 
 recover it, is void, as contrary to the policy 
 of the law. {Strange v. Brennon, 15 Sim. 
 346.) And an agreement by a client to 
 allow his solicitor interest on his bill of costs, 
 cannot be maintained — at all events, not un- 
 
' CONSTRUCTIVE FRAUD. 81 
 
 less the solicitor informed the client that ^it. i. 
 
 Cap. IV. 
 
 the law allowed no such charge, or the client 
 
 acquiesced; after the termination of the rela- 
 tion, and after proper advice upon the sub- 
 ject. (Jjyddon v. Moss^ 4 D. & J. 104.) But 
 a deed executed by a client in favor of his 
 solicitor, if voidable, may be confirmed by 
 the will of the client. {Stump v. Gahy, 2 
 D. M. & G. 633. But see Waters v. Thorn, 
 22 Beav. 547, 559.) 
 
 An agreement between a solicitor and 
 client, that a gross sum shall be paid for 
 costs for business already done is valid. But 
 an agreement to pay a gross sum for busi- 
 ness hereafter to be done, is void. And if a 
 solicitor takes a gross sum for his services, 
 without an account, he should preserve evi- 
 dence of the fairness of the agreement, and 
 that the client had good advice, or had full 
 opportunity and capacity to judge for him- 
 self {In re Newman, 30 Beav. 196 ; Morgan 
 V. Eiggins, 1 Gif 277.) 
 
 5. Similar principles apply to a medical 5. Doctor, 
 adviser and his patient. (St. § 815.) 
 
 6. An agent will not be permitted to reap 6. Agent. 
 any advantage by becoming secret vendor or 
 purchaser of property which he is authorized 
 
 to buy or sell for his principal. (St. § 315.) 
 
82 CONSTRUCTIVE FRAUD.- 
 
 ca"'iv ^'^ ^^^^ '^ ^" agent sells his own property to 
 
 his principal, as the property of another, 
 
 "without disclosing the fact, or if an agentpur- 
 chases the goods of his principal in another 
 name, however fair the transaction may be, 
 the principal may either repudiate it, or may 
 claim any profit made by the agent; in order 
 to deter agents from placing themselves in 
 a state of temptation to benefit themselves, 
 rather than their employers. And if an 
 agent employed to purchase for another 
 purchases for himself, he will be considered 
 as the trustee of his employer. (St. § 316 ; 
 1211 a; Bentley v. Craven, 18 Beav. 75; 
 Bank of London v. Tyrrell, 27 Beav. 273 ; 
 Tyrrell v. Bank of London, 10 Ho. of Lords, 
 26; TFen<«;ortA V. ifoyd, 32 Beav. 467.) And 
 in all transactions directly and openly en- 
 tered into between principal and agent, the 
 utmost good faith is required ; so that the 
 agent must not conceal any facts within 
 his knowledge which might influence the 
 judgment of his principal as to the price or 
 value. (St. § 315, 316 a; see Dally v. Won- 
 ham, 33 Beav. 154.) 
 7. Trustees. 7. To guard against the danger of any 
 advantage being taken by a trustee, and to 
 remove all temptation from him, he is never 
 
CONSTRUCTIVE FRAUD. 83 
 
 permitted to obtain any profit or advantage (J"-jy 
 
 to himself in managing the concerns of his 
 
 cestui que trust, but whatever benefits or 
 profits are obtained will belong to the cestui 
 que trust. And he is not allowed to partake 
 of the bounty of the party for whom he 
 acts, except under circumstances which 
 would make the same valid if it were a case 
 of guardianship. (St. § 321, 322; see infra 
 Tit. II. c. VI. div. I v., and c. VII. div. XII.) 
 A trustee cannot purchase the trust estate 
 from himself or from his co-trustee. And 
 if a purchase is made of the trust estate by 
 the trustee from his cestui que trust, although 
 at a public auction, unless there has been no 
 fraud, concealment, or advantage on the part 
 of the trustee, and no want of protection and 
 security on the part of the cestui que trust, 
 the cestui que trust may require a re-convey- 
 ance or a re-sale ; and, if the re-sale produces 
 more than the trustee gave, the cestui que 
 trust may repudiate the first sale, and adopt 
 the re-sale; if less, ho may aflSrm the first 
 sale. (Sugd. V. & P. 14th ed. 69, 691—4; 
 Lewin on Trusts, 4th ed. 335—342. St. § 
 322 ; 2 Sp. 943 — 4 ; Smedley v. Varley, 23 
 Beav. 358; Denton y. Donner, Id. 285; 1 Lead. 
 Cas. Eq. 2d ed. 139.) 
 
84 
 
 CONSTRUCTIVE FRAUD. 
 
 XlT. I. 
 
 Cap. IV. 
 
 8. Counsel 
 agents, 
 commis- 
 sioners of 
 bankrupts, 
 assignees 
 and solici- 
 tors of a 
 bankrupt or 
 insolvent, 
 auctioneers, 
 and cred- 
 itors. 
 
 9. Executor 
 or adminis- 
 trator. 
 
 10. Debtor, 
 creditor, 
 and surety. 
 
 8. In order to prevent the temptation of 
 availing themselves of information for their 
 own benefit, and concealing it from those for 
 whom they act, the same restriction on the 
 right of purchase applies to other persons 
 standing in similar confidential situations; 
 as to counsel, agents, commissioners of bank- 
 rupts, assignees and solicitors of a bank- 
 rupt's or insolvent's estate, auctioneers, and 
 creditors, who have been consulted as to the 
 sale. (St. § 322 ; 2 Sp. 943 ; Pooley v. Quilter, 
 2 D. & J. 327.) 
 
 9. And it may be laid down as a general 
 rule with regard to executors or administra- 
 tors, that they will not be permitted, under 
 any circumstances, to derive a benefit from 
 the manner in which they transact the busi- 
 ness of their ofiice. (St. § 322 ; Robinson v. 
 Pett, 2 Lead. Oas. Eq. 2d ed. 206 et seq.') 
 
 10. Entire good faith is required between 
 debtor and creditor and sureties. And if a 
 creditor does any act afi'ecting the surety, or 
 if he omits to do any act of duty which he is 
 required to do by the surety, or is bound to do, 
 and that act or omission may prove injurious 
 to the surety, or if a creditor enters into any 
 stipulations with the debtor, unknown to the 
 surety, and inconsistent with the terms of 
 
CONSTRUCTIVE FRAUD. 85 
 
 the original contract, the surety may set Q^'h 
 
 up such contract as a defence to any suit 
 
 brought against him, in a Court of Law or 
 Equity. So that if a creditor stipulates with 
 his debtor, in a binding manner, upon a suf- 
 ficient consideration, to give further time 
 for payment, without the consent of the 
 surety, the latter will be thereby discharged 
 if the arrangement might be injurious to 
 him. (St. § 334, 325, 326, 883, 883 a, note ; 
 Jtees V. Berrington, 2 Lead. Gas. Eq. 2d ed. 
 814 et seq. ; Tucker v. Laing, 2 K. & J. 745 ; 
 Blest V. Brown, 3 Gif. 450 ; Eange v. Fooks, 
 4 Gif. 408.) But a conditional agreement for 
 further time does not discharge the surety, 
 when, from the agreement not being per- 
 formed, the agreement does not become 
 binding. (St. § 883 a, note.) It has been 
 repeatedly held (but contrary to principle, 
 as the writer submits), that the giving of 
 time does not discharge the surety, if it is 
 agreed between the creditor and the princi- 
 pal debtor, when further time is given, that 
 the surety shall not be thereby discharged. 
 ( Webb V. Hewitt, 1 K. & J. 442; Wyke v. Ro- 
 gers, 1 D. M. & G. 408.) Mere delay on the 
 part of the creditor, at least if some other 
 Equity does not intervene, unaccompanied 
 
 8 
 
00 CONSTRUCTIVE FRAUD. 
 
 Cap' IV ^'*'^ ^^y valid contract for such delay, will 
 
 not amount to laches, so as to discharge the 
 
 surety ; for the creditor is under no obliga- 
 tion to press the principal for payment. 
 (St. § 326; Tucker v. Zaing, 2 K. & J. 745.) 
 But the sureties are entitled to come into a 
 Court of Equity, after a debt has become 
 duq, to compel the debtor to exonerate them 
 from their liability by paying the debt. (St. 
 § 327, 369.) 
 III. Frauds III. Eelief will be granted in favor of 
 
 in case of 
 
 persons those classes of persons, of whom, from 
 
 peculiarly ■*■ ' ' 
 
 imposed oo. their peculiar circumstances, irrespective 
 of any mental incapacity, undue advantage 
 may readily be taken, even where the trans- 
 action could not be imjjeached if entered 
 into by parties otherwise situated. {Earl 
 of Chesterfield v. Janssen, 1 Lead. Gas. Bq. 
 2d ed. 428 et seq.) Thus, 
 
 r. Bargains 1. Bargains with expectant heirs will be 
 
 with expec- 
 tant beira, set aside, unless the purchaser on whom the 
 
 onus probandi rests can show that a full 
 
 consideration was paid, or that the bargain 
 
 was fully made known to and approved by 
 
 the person to whose estate the expectant 
 
 heir hoped to succeed; because it is the 
 
 policy of Equity to prevent designing men 
 
 from taking advantage of persons whose 
 
CONSTRUCTIVE FRAUD. 87 
 
 interests are future, and therefore apt to be (J"-jy 
 
 under-estimated or improvidently disposed 
 
 of,especially by the necessitous, the thought- 
 less, and the young j and it is also the object 
 of Equity to discourage transactions by 
 which the intentions of the ancestor or 
 other person from whom the property was 
 expected are disappointed, and, by cutting 
 off relief at the hands of strangers, to 
 oblige the heir to disclose his difBculties at 
 home. (See St. § 334—340, 343.) 
 
 If the heir, after being relieved from his 
 necessities, absolutely and deliberately, and 
 on full information as to his right of setting 
 aside the bargain, confirms the transaction, 
 or does any act by which the rights or 
 property of the other party are injuriously 
 affected, he will not be allowed to repudiate 
 the bargain. (St. § 345, 346.) 
 
 The repeal of the usury laws has not al- 
 tered the rules of the Court as to dealings 
 with expectants. {Groft v. Graham, 2 D. J. 
 & S. 155.) 
 
 The same relief was afforded to remainder- and remain- 
 der-men 
 men and reversioners, unless the purchaser andrevcr- 
 
 could show that a full consideration was paid 
 
 or that the bargain was fully made known to 
 
 and '.ipproved by their parents or other per- 
 
88 CONSTRUCTIVE FRAUD. 
 
 Tit. I. sons Btaxiding in loco parentis, who had the 
 
 means of obviating the necessity of such an 
 
 alienation of their future interests. (St. 
 § 334—340; Salter v. Bradshaw, 26 Beav. 
 161 ; St. Albyn.Y. Harding, 27 Beav. 11; Tal- 
 bot V. Staniforth, 1 Johns. & H. 484; Foster 
 V. Roberts, 29 Beav. 467; Jones v. Bicketts, 
 31 Beav. 130 ; Sharp v. Leach, 31 Beav. 491 ; 
 Nesbitt V. Berridge, 32 Beav. 282 ; Bally v. 
 Wonham, 33 Beav. 154, 162 ; Perfect v. JJane, 
 3 D. F. & J. 369.) This doctrine applied to 
 a charge as Well as a sale, and notwithstand- 
 ing the expectant was of mature age, and 
 fully understood the nature of the transac- 
 tion. And it was not necessary to show that 
 he was in pecuniary distress; for that would 
 be assumed. (Bromley v. Smith, 26 Beav. 
 644; Tynte v. Bodge, 2 Hem. & Mil. 287.) 
 
 By the stat. 31 Vict. c. 4, it is enagted that 
 "No purchase, made bond fide and without 
 fraud or unfair dealing, of any reversionary 
 interest in real or personal estate shall here- 
 after be opened or set aside merely on the 
 ground of undervalue'' (s. 1); and that the 
 word 'purchase' in this Act shall include 
 every kind of contract, conveyance, or as- 
 signment under or by which any beneficial 
 interest in any kind of property may be 
 
CONSTRUCTIVE FRAUD. 89 
 
 acquired (a. 2); and that this Act shall ^J^^y 
 
 come into operation on the first day of 
 
 January, one thousand eight hundred and 
 sixty-eight, and shall not apply to any 
 purchase concerning which any suit shall be 
 then depending (s. 3). 
 
 2. On similar principles post-obit bonds ^ ^S^'^?''" 
 and other securities of the like nature are p pp^'^ 
 set aside, when made by heirs and other 
 expectants. A post-obit bond is an agree- 
 ment made, on the receipt of money by the 
 obligor, to pay a sum exceeding the sum so 
 received and the ordinary interest thereof, on 
 
 the death of the person upon whose decease 
 he expects to become entitled to some prop- 
 erty. (St. § 342.) Even the sale of a post- 
 obit bond at a public auction will not give 
 it validity, unless the sale was free, fair, and 
 with the usual precautions and advertise- 
 ments. (St. § 847.) If, however, these con- 
 tracts are perfectly fair in other respects, 
 relief will not be granted, except upon the 
 terms of paying that to which the lender is 
 equitably entitled. (St. § 344.) 
 
 3. Where tradesmen and others have sold 3. Saies to 
 
 expectants 
 
 goods to younar and expectant heirs, at cxor- at oxorw- 
 
 b •> o L taut prices. 
 
 bitant prices, and under circumstances in- 
 dicative of imposition, oi' of undue influence, 
 
 8* 
 
90 
 
 CONSTRUCTIVE FRAUD. 
 
 Tit. I. 
 Cap. IV. 
 
 4. Common 
 sailors. 
 
 or of an intention to connive at profuse ex- 
 penditure, unknown to their parents or other 
 persons standing in loco parentis, Equity has 
 cut down the claim to a just amount. (St. § 
 348.) 
 
 4. Common sailors, being so extremely 
 generous, credulous, and improvident a 
 class of men that they require guardianship 
 all their lives, Equity treats them in the 
 same light as young expectant heirs ; and 
 relief is generally afforded against contracts 
 respecting their prize-money or wages, wher- 
 ever any inequality appears in the bargain, 
 or any undue advantage has been taken. 
 (St. § 332.) 
 6. nisposi- 5. Where a person shortly after obtaining 
 person after hjg maioritv, makes a arift, sale, or lease, in 
 
 majority. .j ./ / o ^ ' ' 
 
 favor of a relative, it will be set aside, unless 
 the grantor or lessor makes it intentionally 
 and deliberately, after having had the fullest 
 information on the subject, and separate, in- 
 dependent, and disinterested advice; even 
 though the terms, in the case of a sale or 
 lease, were fair, but yet not so advantageous 
 as might have been obtained. (^Grosvenor v. 
 Sherratt, 28 Beav. 659.) 
 fKt'uIs'on"^ IV. "Where something is said or done, or 
 individuals, gome omission is made, which operates as a 
 
CONSTRUCTIVE FRAUD. 91 
 
 virtual fraud upon an individual, but may ^pj^ 
 have been nothina; more than mere neglect, . — :. 
 
 o o J irrespective 
 
 unconnected with any selfish or evil design, fli™t^ai°re- 
 or may amount, in the opinion of the party, an'yMcuHar 
 to nothing more than justifiable artifice, or imposiLn. 
 to a fair attempt to obtain a reasonable ad- 
 vantage, or to an allowable act, statement, 
 or omission, of some other kind, relief will 
 be granted on the ground of constructive 
 fraud. Thus, 
 
 1. Where a person by some act, state- i. Mislead- 
 ing. 
 ment, or omission, whether beneficially to 
 
 himself or not, knowingly produces a false 
 impression on another, who is misled and 
 injured thereby; and such act, statement, 
 or omission, when rightly considered, is con- 
 trary to plain moral duty or good faith, but 
 yet may not have been connected with any 
 design, either to injure another or to benefit 
 the person who is guilty thereof, in such case 
 the latter alone, even though an infant or 
 married woman, shall sufier thereby, on the 
 ground of constructive fraud. (See St. § 384 — 
 390 ; 2 Sp. 57.5, 576, and see p. 56, supra.) 
 As where a person, knowing himself to be 
 the owner of property, permits another to 
 sell it as his own to a third person, who 
 purchases under the supposition that the 
 
92 CONSTKUCTIVE FRAUD. 
 
 cl"iv vendor has a good title, the real owner will 
 
 not be allowed to assert his title to it. (St. 
 
 § 385, 389.) And where a person, aware of 
 the existence of an instrument under which 
 he might reasonably have supposed that he 
 took some interest, neglects to make proper 
 inquiries as to the fact, and encourages a 
 stranger to deal with another person re- 
 specting property in which he himself is 
 interested under such instrument, he will 
 be bound by the transaction. (See St. § 
 387.) And where a person becomes a trus- 
 tee of money for several creditors, and at 
 the date of the trust deed he had a charge 
 on the share of one of them, but it is not 
 mentioned in the deed, he will be post- 
 poned to another person who had a sub- 
 sequent charge on that share, and had no 
 notice of the trustee's charge, but gave him 
 due notice of his own charge. (^Commis- 
 sioners of Public Works v. Harby, 23 -'Beav. 
 508.) And where a person grants a lease, 
 on the security of which money is lent, and 
 the lessor, before the lease was granted, was 
 asked by the lender whether ho intended to 
 grant such lease, and he answered in the 
 affirmative, forgetting that he had previously 
 granted another lease to the same'peraon, 
 
-CONSTBUCTIVE FRAUD. 93 
 
 who had assigned it for value, the lessor was tit. r. 
 
 °. ' Cap. IV. 
 
 held liable for the loss arising from the in- 
 
 validity of the security. {Slim v. Croucher, 
 1 D. F. & J. 518.) 
 2. Agreements whereby persons agree not 2. Frauds 
 
 - , on auctions. 
 
 to bid against each other at an auction, 
 
 especially where the same is directed or 
 
 required by Law, are held void. For, such 
 
 agreements may cause the property to be 
 
 sold at an undervalue, and thereby injure 
 
 the person interested in the proceeds of sale ; 
 
 and they have a tendency to prejudice the 
 
 character and value of auctions in general. 
 
 (See St. § 293.) On the other hand, if under- 
 
 bidders or puffers are employed at an auction 
 
 to enhance the price, and other bidders are 
 
 thereby misled, the sale will be void. (St. 
 
 § 293.) 
 
 3. As the Statute of Frauds was designed 3. Uncon- 
 scientious 
 as a protection against fraud, it will never use of the 
 
 '^ ° ' statute of 
 
 be allowed to set up as a protection and Frauds, 
 support of fraud. (^Lincoln v. Wright, 4 D. 
 & J. 16.) And hence, where, from any cir- 
 cumstances which may have resulted from 
 fraud, a contract has not been reduced into 
 writing as it ought to have been, it will be 
 enforced against the party who is chargeable 
 with the omission, in case he attempts to 
 
94 CONSTRUCTIVE FRAUD. 
 
 Tit. I. shelter himself behind the provisions of the 
 
 Cap. IV. ^ 
 
 Statute. (See St. § 330.) 
 
 desune" ^- ^^ Clandestine marriage contracts are 
 
 ran"S. designed to impose on parents or persons 
 standing in loco parentis or in some other 
 peculiar relation to the parties, so as to 
 disappoint their bounty, or to defeat their 
 intentions in the disposition of their prop- 
 erty, such contracts will be set aside, or 
 the equities will be held the same as if they 
 had not been entered into. (See St. § 275.) 
 6. Frauds on 5, go, relief will be granted to the iniured 
 
 marriages. ' ^ •* 
 
 parties, where persons, after doing acts re- 
 quired to be done on a treaty of marriage, 
 render those acts virtually unavailing, by 
 entering into other secret agreements, or 
 derogate from those acts, or otherwise com- 
 mit a fraud upon a marriage. (See St. 
 § 268 — 272.) As where a parent declines 
 to consent to a marriage, on account of the 
 intended husband being in debt, and the 
 brother of the latter gives a bond for the 
 debts, to procure such consent ; and the 
 intended husband then gives a secret coun- 
 ter-bond to his brother, to indemnify him 
 against the first bond. (St. § 269.) So 
 where a brother, on the marriage of his 
 sister, let her have a sum of money pri- 
 
CONSTRUCTIVE FKAUD. 95 
 
 vately, that her fortune might appear to be J^'^-h 
 
 as much as was insisted on, and the sister 
 
 gave a bond to the brother to secure the 
 re-payment thereof, the bond was set aside. 
 (St. § 270.) So where upon a treaty of mar- 
 riage, a creditor of the intended husband con- 
 cealed his own debt, and misrepresented to 
 the wife's father the amount of the husband's 
 debts, the transaction was treated as a fraud 
 upon the marriage, and the creditor was 
 prevented from enforcing his debt. (St. 
 § 271.) And where a father, on the mar- 
 riage of his daughter, enters into a covenant, 
 that on his death he will leave her a full and 
 equal -share of all his personal estate, he 
 cannot afterwards transfer a portion of his 
 personal property to another child, retaining 
 the annual income thereof for his life. (St. 
 § 382.) 
 
 6. Eelief will also be granted against acts e. Frauds 
 
 .on marital 
 
 secretly done by a woman m contravention rightsores 
 
 pectations. 
 
 of the marital rights, or in disappointment 
 of the just expectations of her intended 
 husband. As where a woman, in contem- 
 plation of marriage, and without the privity 
 of her intended husband, makes a settle- 
 ment to her separate use, or a conveyance 
 in favor of persons for whom she is under 
 
96 CONSTRUCTIVE FRAUD. 
 
 ca'/iv "'^ moral obligation to provide. But a rea- 
 
 ' sonable provision for her children by a 
 
 former marriage, under circumstances of 
 good fiaith, is free from objection. (St. 
 § 273; 2 Sp. 505; Countess of Strathmore v. 
 Bowes, 1 Lead. Cas. Bq. 2d ed. 325 et seq. ; 
 Prideaux v. Lonsdale, 4 Gif. 159, 1 D. J. & S. 
 433; Downes v. Jennings, 32 Beav. 290.) 
 under'the '7- It has been determined, that by the 
 c. 5.' "'' Common Law and the Statute 13 Eliz. c. 5, 
 if a person makes a conveyance of any prop- 
 erty which is liable to the payment of debts 
 (unless it is for valuable consideration and 
 bond fide, to a person who has no notice 
 of a fraudulent intent), and at the time, or 
 immediately afterwards, he is indebted to 
 such an amount that he has not ample 
 means exclusive of that property, available 
 to pay the debts, such conveyance is fraudu- 
 lent and void as against the creditors, to the 
 extent to which it may be necessary to apply 
 the property conveyed in payment of the 
 debts. (See St. § 352—374, 381; 2 Sp. 
 887; Ellison v. Ellison, 1 Lead. Cas. Eq. 2d 
 ed. 199 et seq. ; Scarf v. Soulby, 1 Mac. & 
 Gord. 364; Be Magawley's Trust, 5 De Gex 
 & Sm. 1; Barton v. Vanheythusen, 11 Hare, 
 126 ; Bott V. Smith, 21 Beav. 511 ; Denning 
 
CONSTRUCTIVE FRAUD. 97 
 
 «r. Ware, 22 Beav. 184; Strong v. Strong, 18 jTy/^ 
 
 Beav. 408 ; Holmes v. Penney, 3 K. & J. 90 ; 
 
 French v. French, 6 D. M. & G. 95 ; Turnley 
 V. Hooper, 3 Sm. & G. 349 ; TFaJ-dew ^ Jones, 
 23 Beav. 487, 2 D. & J. 76; Thompson v. 
 FeSsfer, 4 Drew. 628, 4 D. & J. 600 ; Acra- 
 man v. Corbett, 1 Johns. & Hem. 410 ; Bar- 
 ling V. Bishopp, 29 Beav. 417; Stohoe v. 
 Cowan, 29 Beav. 637 ; Smith v. Cherrill, L. 
 E. 4 Eq. Gas. 890.) 
 
 8. If a creditor who is a party to as. Frauds on 
 
 creditors. 
 
 composition deed, has, unknown to the 
 other creditors, obtained any benefit or 
 security, either from the debtor or a third 
 person, beyond what the others have re- 
 ceived, or enters into a contract with the 
 debtor which prevents him from being put 
 into that situation of freedom from existing 
 demands, which may be considered as one 
 of the chief inducements to the others to 
 sign the deed, it is a fraud on the policy of 
 the law; and such secret arrangements are 
 entirely void, even as against the assenting 
 debtor, or his sureties, or his friends ; and 
 money paid under them may be recovered 
 back. (See St. § 378, 379; 2 Sp. 357— 
 360.) 
 So an agreement between an insolvent 
 9 
 
98 CONSTKTJCTIVE FKAUD. 
 
 ca"iv ''°'^*^°^ ^'^^ ^^^ assignee, by which the estate 
 
 of the insolvent is to be held in trust, to 
 
 pay certain annuities to the insolvent, and 
 to apply the surplus to the extinction of a 
 debt to the assignee, -will be rescinded, even 
 at the instance of the insolvent himself. 
 (St. § 380.) And it was held to be a fraud 
 for a creditor secretly to obtain a larger div- 
 idend than was received by the other cred- 
 itors, under the arrangement clause in the 
 Bankrupt Act of 1849 (s. 230); and relief 
 was granted even at the instance of the 
 debtor.. {Mare v. Sandford, 1 Gif. 228.) 
 9. Mortgage 9. Where a person takes a mortgage or a 
 
 or convey- ^ o i^ 
 
 aricewith conveyance, with full notice of the legal or 
 tiUB.''^'* equitable title of other persons to the same 
 property, his own title will be postponed 
 and made subservient to their title (St. 
 § 395, 396 ; Le Neve v. Le Neve, 2 Lead. Cas. 
 Bq. 2d ed. 23 et seq.; Atterhury v. Wallis, 8 
 D. M. & G. 454), except in cases within the 
 Stat. 27 Eliz. e. 4. (See p. 102, infra.) 
 
 Thus, if a person takes a mortgage of 
 property, knowing that it was subject to an 
 equitable mortgage made by deposit of the 
 title-deeds, the notice of the equitable mort- 
 gage will raise a trust in him to the amount 
 of the equitable mortgage. (St. § 395.) 
 
CONSTRUCTIVE FRAUD. 99 
 
 Notice is attended with the same conse- c^"iv • 
 
 queiice even where the property lies in a 
 
 register county. For, the object of the 
 Registration Acts being only to secure sub- 
 sequent purchasers and mortgagees against 
 prior secret conveyances and incumbrances, 
 if a subsequent purchaser or mortgagee has 
 notice, at the time of his purchase or mort- 
 gage, of any prior unregistered conveyance 
 or mortgage, he will not be permitted to 
 avail himself of his title against the prior 
 convej'ance or mortgage, any more than 
 he would if the same were registered. (St. 
 § 397 ; 2 Sp. 763.) 
 
 Notice may be either actual, or construc- 
 tive, i. e., imputed by construction of law. 
 (2 Sp. 754.) Actual notice, to constitute a 
 binding notice, at least where it depends on 
 oral communication only, must be given by 
 a person interested in the property, and in 
 the course of the treaty. (2 Sp. 753.) 
 
 As regards constructive notice, whatever 
 is sufficient to put any person of ordinary 
 prudence on inquiry, is constructive notice 
 of everything to which that inquiry might 
 have led. (2 Sp. 755—760; Ogilvie v. 
 Jeaffreson, 2 Gif 353, 378 ; Leigh v. Lloyd, 
 2 D. J. & S. 330; Broadbent v. Barlow, 3 D. 
 
100 CONSTRUCTIVE FRAUD. 
 
 ca'piv ■^' *■ ^•' ^'^^•^ ^^^ hence a purchaser ia 
 presumed to have knowledge of the instru- 
 ment under which the party with whom 
 he contracts, as executor or trustee or ap- 
 pointee, derives his power. (St. § 400.) 
 But the mere registration of a conveyance 
 is not deemed constructive notice to subse- 
 quent purchasers, as to collateral effects ; so 
 that the mere registration of a second mort- 
 gage will not prevent a prior mortgagee from 
 tacking a third mortgage, when he had no 
 actual notice of the existence of the second 
 mortgage. (St. § 401, 402 ; 2 Sp. 763.) To 
 constitute constructive notice, it is sufiBcient 
 if it is brought home to the agent, attor- 
 ney, or counsel, in the same transaction, or 
 in one immediately preceding; unless there 
 is a moral certainty that he would not have 
 communicated the fact to the principal or 
 client. (St. § 408 ; 2 Sp. 700, 761 ; Spaight 
 V. Cowne, 1 Hem. & Mil. 359 ; Atterhury v. 
 Wallis, 8 D. M, & G. 454 ; Thompson v. Cart- 
 wright, 33 Beav. 178, 185.) And where the 
 mortgagor has at different times employed 
 the same solicitor in effecting different in- 
 cumbrances upon the same estate, and the 
 incumbrancers have employed the mort- 
 gagor's solicitor in the several transactions, 
 
CONSTRUCTIVE FRAUD. 101 
 
 each ofihepuisnS incumbrancers is affected f,^'p-/y 
 
 with notice of the priol* incumbrances. (2 
 
 Sp. 761.) 
 
 A purchaser of a legal estate with notice 
 of an equitable claim, will be protected, if 
 he purchases from a prior bond fide pur- 
 chaser without notice; for otherwise the 
 latter would not enjoy the full benefit of his 
 own exceptionable title. And if a purchaser 
 who had notice sells to another, and the 
 latter has no notice and is a bond fide pur- 
 chaser for a valuable consideration, the title 
 will not be affected with notice in his hands ; 
 for otherwise no man would be safe in any 
 purchase. (St. § 409, 410; 2 Sp. 764; 
 Sugd. V. & P. 14th ed. 153; 2 Lead. Cas. 
 Eq. 2d ed. 36, 37 et seq.) 
 
 10. Purchases from executors of the per- lo. rraudn- 
 
 . lent dealing 
 
 sonal propertv of their testator, are or- withexecu- 
 
 ' >■ '' ' tors or ad- 
 
 dinarily valid, notwithstanding it may be ministra- 
 affected with some peculiar trust or equity 
 in the hands of the executor; for the pur- ^ 
 chaser cannot be presumed to know that 
 the sale may not be required In order to 
 discharge the debts of the testator, to which 
 they are legally liable before all other claims. 
 But if the purchaser knows that the exec- 
 utor is converting, the estate into money for 
 9* 
 
102 CONSTRUCTIVE FRAUD. 
 
 Ca"'iv ^" unlawful purpose, the purchase will be 
 
 — ' set aside. (St. § 422, 423, 580, 581 ; Elliot 
 
 V. Merryman, 1 Lead. Cas. Eq. 2d ed. 45 et 
 
 seq.) 
 
 11. Frauds 11. The object of the Statute 27 Eliz. c. 4, 
 
 under Ibe 
 
 Stat. 27 Eliz. being to give full protection to subsequent 
 voluntary pui'chascrs against voluntary prior convey- 
 agafnst^^ ances, a prior conveyance is deemed void, 
 purchasers as against a subsequent purchaser or mort- 
 gees. gagee, whether with or without notice, and, 
 
 even after a bill filed to enforce such prior 
 conveyance, if not on valuable consideration, 
 although it may be bond fide and on good 
 consideration, or although it may be ex- 
 pressed to be made for divers valuable con- 
 siderations, not naming them ; on the ground 
 that the Statute, in every such case, infers 
 fraud, and will not suffer the presumption to 
 be rebutted. As between the parties them- 
 selves, however, such conveyances are bind- 
 ing. And as between two voluntary con- 
 veyances, if the first is fraudulent, the second 
 will prevail; but, where each is bond fide, 
 Equity will not interfere. (St. § 425, 426, 
 433; 2 Sp. 288, 638; JEUison v. mison, 1 
 Lead. Cas. Eq. 2d ed. 199 et seq.; 
 Kelson v. Kelson, 10 Hare, 386; Barton v. 
 Vanheythusan, H Hare, 126 ; Lewis v. Jtees, 
 
CONSTBUCTIVB FRAUD. 103 
 
 3 K. & J. 132, 150—1 ; Baking v. Whimper, ^tit. l^ 
 26 Beav. 568; Lloyd v. Attwood, 8 D, & J. — ' 
 614.) Nor will Equity interfere where the 
 voluntary grantee has conveyed to a bond 
 fide purchaser for valuable consideration, 
 before the bond fide purchaser from the 
 voluntary grantor acquired his title. (St. 
 § 434.) And Equity will not give its aid 
 to a voluntary settlor to enable him to com- 
 plete a contract for sale against a purchaser. 
 (2 Sp. 289.) 
 
 There is this exception to the general rule, 
 in the case of a charity, that if a purchaser 
 has notice of a gift to a charitable use, or 
 purchases without notice of it from a pur- 
 chaser who had notice of it, he takes subject 
 to it ; though, if he has no notice, and he has 
 not purchased from a purchaser with notice, 
 he will have the same protection as he would 
 have against an ordinary voluntary con- 
 veyance. (2 Sp. 289 ; Tudor's Char. Trusts, 
 2d ed. 329—332.) 
 
 A fair voluntary settlement in favor of a 
 wife and children is also an exception to the 
 rule to this extent, that almost any bond fide 
 consideration, in addition to the meritorious 
 consideration of the provision itself, will be 
 sufficient for the purpose of supporting the 
 
104 CONSTRUCTIVE FRAUD. 
 
 Tit. I. settlement. Therefore, if a person whose 
 
 Cap. IV. ' * 
 
 concurrence the parties deem essential, joins 
 
 in a settlement, his concurrence will be 
 deemed a valuable consideration although 
 he did not substantially part with any- 
 thing. (See 2 Sp. 288, 290 ; Sugd. Concise 
 View, 568—9 ; Atkinson v. Smith, 3 D. & J. 
 186.) 
 
 And if the wife's estate is settled on her 
 for life, for her separate use, with remainder 
 to the husband, with remainder to the 
 children, by a post-nuptial settlement, it is 
 good against a mortgagee of the husband 
 and wife; because the surrender by the 
 husband of his right to receive the rents 
 and profits during the coverture, and his 
 giving his wife an exclusive power over 
 them, is a valuable consideration. {Bewison 
 V. Negus, 16 Beav. 594.) 
 
 A collateral relation who is the object of 
 an ulterior limitation in a settlement, is not 
 a mere volunteer : for though he may not 
 be within the consideration of the marriage, 
 he is within the contract; but yet it has 
 been held that he cannot prevail against a 
 purchaser. (2 Sp. 291—293.) 
 
 A conveyance for payment of debts gene- 
 rally, to ^yhich no creditor is a party, and in 
 
CONSTRUCTIVE FRAUD. 105 
 
 which no particular debt is expressed, is a cIp^'iv 
 
 fraudulent conveyance within the statute. 
 
 (2 Sp. 351.) ■ 
 
 12. In every transaction in which a person 12. Frauds 
 
 . . in the case 
 
 obtains, by voluntary donation, a benefit ofvoiuntary 
 from another, it is necessary, if the trans- against the 
 
 ' . •/ ' donors 
 
 action be called in question, that he should t^emaeives. 
 be able to establish that the person giving 
 him the benefit did so voluntarily and de- 
 liberately, and with full knowledge of what 
 he was doing : if this is not established, the 
 transaction will be set aside. (^Huguenin v. 
 Baseley, 2 Lead. Cas. Bq. 2d ed. 462, et 
 seq. J Cooke v. I/amotte, 15 Beav. 241 ; Ander- 
 son V, Msworth, 3 Gif. 154 ; Sharp v. Leach, 
 81 Beav. 491; Phillipson v. Kerry, 32 Beav. 
 628.) 
 
 13. The donee of a power must exercise is. Fraad- 
 
 ■*■ ulent ap- 
 
 it bond fide for the end designed; otherwise pointmsnts. 
 it is considered as a fraud upon the power. 
 ( Topham V. DuJce of Portland, 1 D. J. & S. 517.) 
 Hence, where a person has a power of ap- Appoint- 
 
 ' ■*■ *■ ■*■ ment must 
 
 pointing to all or any of his children, and the'cM° '""^ 
 
 he exercises it in favor of one child, merely "'^^s'^^''- 
 
 in order to remove an objection to the title 
 
 of an estate, the appointment is void. And 
 
 if a person, having a particular power to be ment™ 
 
 „ , 1 whereby a 
 
 exercised for the benefit of others, makes an benefit 
 
106 CONSTRUCTIVE FRAUD. 
 
 Tit. I. appointment in paj'ment of a debt dne to 
 ""7" the appointee by the appointor, or npon the 
 pohuorora t^rms Or for the purpose of securing some 
 stranger, bguggt to himself Or some others not ob- 
 jects of the power, such an appointment is 
 fraudulent, and will he set aside in equity : 
 as where the donee of a power appoints a 
 fund to one of the objects of the power, 
 under an understanding that the latter is to 
 lend the fund to the former, though on good 
 security ; or that the appointee should hold 
 the fund in trust for, or make over a part 
 to, persons, some of whom are not objects 
 of the power. 
 Appoint- Upon the same principle, if a parent ap- 
 
 infant. points an immediate portion to an infant 
 who is not in want of it, or appoints to a 
 child, whether infant or adult, who is seri- 
 ously ill, with a view to becoming entitled 
 to that which is so appointed himself, as the 
 personal representative of such appointee in 
 the event of his death, the appointment is 
 void as a fraud upon the power. 
 Bights of Where a person exercises a general power 
 
 creditors . 
 
 against a of appointment in favor of a stranger, it 
 appointee, will be deemed a fraud upon his credi- 
 tors, who will in equity become entitled to 
 the money in the hands of the appointee. 
 
CONSTRUCTIVE FRAUD. 107 
 
 (Smith's Corapendiiim of the Law of Prop- ^^^-^y 
 
 erty, Sd ed. 732 — 3; Aleyn v. BelcMer, 1 
 
 Lead. Cas. Eq. 2d ed. 304 et seq ; Be Mars- 
 den's Trust, 4 Drew. 594.) 
 
 14. If a man has induced another to u. Putting 
 
 an end to 
 
 enter into a contract with him, by represent- ^^^J^l^ 
 ing an actual state of things as a security Hon^forT 
 for the enjoyment of an interest which he °'""™'='- 
 has himself created for valuable considera- 
 tion, he is not at liberty, by his own act, to 
 derogate from that interest, by determining 
 the state of things which he has so held 
 forth as the consideration for entering into 
 the contract. (Piggott v. Stratton, 1 Johns. 
 341; 1 D. F. & J. 33.) 
 
 15. A person who has entered into a pur- ?5. Eescind- 
 
 ^ ^ ing contract 
 
 chase contract, cannot rescind such contract, i,enefit by*a 
 in order to turn to his own benefit a flaw in ^tie.'" ^''^ 
 the vendor's title, which he has discovered 
 from the abstract ; as by buying up the 
 interest of an heir-at-law whose concurrence 
 is necessary. (Murrel v. Goodyear, 2 Gif. 
 51 ; 1 D. F. & J. 432.) 
 
TITLE II. 
 
 ®f ®)eeaitit)e ©quUg. 
 
 10 ( 109 ) 
 
(110) 
 
 CHAPTEE I. 
 
 OP LEGACIES AND PORTIONS. 
 
 Tit, II. No suit will lie, at the Common Law, to 
 
 (?AP. I. •' ' 
 
 recover legacies, unless the executor has as- 
 
 Juriadic- 
 
 tioi. sented to them (St. § 591) ; because all the 
 
 chattels vest in him, and are liable to the 
 payment of the testator's debts, and it is the 
 duty of the executor, before he pays, delivers 
 over, or assents to the legacies, to see 
 whether there will be sufficient left to pay 
 the debts, inasmuch as a man must be just 
 before he is permitted to be generous. (See 
 2 Blac. Com. 512.) But after the executor 
 has assented to a specific legacy of chattels, 
 the property vests immediately in the leg- 
 atee, who may maintain an action at law 
 for the recovery thereof. A similar rale has 
 been attempted to be applied at Law to 
 pecuniary legacies, but the application has 
 been doubted and disapproved of (St. § 591) ; 
 because Courts of Law could not impose on 
 the parties recovering these legacies such 
 terms as might be required; so that, for 
 
LEGACIES. Ill 
 
 example, a husband might recover a legacy ^"- ^■ 
 given to his wife, without making any pro- — 
 vision for her or her family. (St. § 592.) 
 And where there is an actual trust, express, 
 implied, or constructive, or the legacy is 
 charged on land, or the other courts cannot 
 take due care of the interests of all parties. 
 Courts of Equity will assert an exclusive 
 jurisdiction. And even where the executor 
 has assented to the legacy, and there is no 
 actual trust, yet they have jurisdiction, 
 though it may be merely a concurrent ju- 
 risdiction; because the executor is consid- 
 ered as a kind of trustee for the legatees, 
 which forms a universal ground of equitable 
 interference; and because the interposition 
 of a Court of Equity may be required to 
 obtain a discovery, account, or distribution 
 of assets, or some other relief or assistance 
 which the other Courts are or were incom- 
 petent to afford. (See St. § 593—602.) 
 
 By the stat. 20 & 21 Vict. c. 77, s. 23, no 
 suit for legacies or the distribution of resi- 
 dues shall be entertained by the Court of 
 Probate, or by any Court or person whose 
 jurisdiction as to matters and causes testa- 
 mentary is thereby abolished. But by the 
 Stat. 9 & 10 Vict., c. 95, s. 65, and 13 & 14 
 
112 LEGACIES. 
 
 c"p"' '^^^^- c- 61, s. 1, a legacy not involving a 
 trust, and not exceeding £50, may be recov- 
 ered in a County Court. (Smith's Manual 
 of Common Law, 3d ed. 443^.) 
 Legacy pay- In cascs of legacies payable at a future 
 
 able at a ° ^ •' 
 
 future day. day, whether contingent or otherwise. 
 Courts of Equity will compel the executor 
 to give security for the payment thereof; or, 
 which is the modern and perhaps the more 
 appropriate practice, it will order the fund to 
 be paid into Court, even if there is not any 
 actual waste, or danger of waste. (St. § 603.) 
 
 Specific And where a specific legacy is given to 
 
 legacy to x o .^ a 
 
 one for life, one for life, and after his death to another, 
 
 remainder 
 
 to another, there the legatee in remainder can obtain a 
 decree for security from the tenant for life, 
 for the due delivery over of the legacy to the 
 remainder-man, if there is some allegation 
 and proof of waste, or of danger of waste. 
 But, in the present day, if there is no such 
 allegation and proof, the remainder-man is 
 only entitled to have an inventory of the 
 property which was bequeathed to him, so 
 that he may be enabled to identify it, and to 
 enforce a due delivery of it when his right 
 of present possession accrues. (St. § 604.) 
 
 What chii- Generally speaking, when a future period 
 
 dren to be 
 
 included, of distribution among children is contem- 
 
LEGACIES. 113 
 
 plated by the will or other instrument, all "q^^^- 
 
 who are born during the life of the parent, 
 
 or before the period of distribution, are en- 
 titled to a share. (2 Sp. 418. ' See Viner v. 
 Francis, Tud. Lead. Cas. E. Prop. 2d ed. 702.) 
 
 If a legacy is given for a particular pur- Legacy for 
 
 - a purpose 
 
 pose, the fact that it cannot be eifected will wwchcan- 
 
 ■*■ ' not be ac- 
 
 not prevent the legacy from vesting in the compushed. 
 donee. (2 Sp. 466, note (c).) So that if a 
 bequest be to or in trust for a legatee, to 
 apprentice him, or the like, it is an absolute 
 gift to the legatee ; and if he dies before it 
 is so applied, it will belong to his represent- 
 atives. (2 Sp. 462.) 
 
 A legacy by a parent to a child is pre- what is a 
 
 , . 1 portion. 
 
 sumed to be a portion, although it be not so 
 expressed; because it is the duty of a parent 
 to provide for his child. The duty which 
 is imposed upon the parent may be assumed 
 by any other person who for any reason 
 thinks proper to put himself in that respect 
 in the place'of the parent; and when it is 
 80 assumed, the same presumption will arise 
 as in the case of a legacy or gift by a parent. 
 There are many doctrines which are appli- 
 cable to portions, that is, sums of money 
 secured or given by a parent or person 
 standing in loco parentis to a child, which 
 
 10* 
 
114 LBaACIES. 
 
 Cap ¥' would not be applied to a gift as between 
 
 strangers. (2 Sp. 394.) 
 
 Where por- If portions Or legacies charged on land 
 
 tions or ^ ° ° 
 
 Jj'sac^esare are made payable on an event personal 
 raised. ^^ ^Jjq party to be benefited, and he dies 
 before that event happen, the portion or 
 legacy is not to be raised out of the land. 
 But it is otherwise if the payment is post- 
 poned until the happening of an event not 
 referable to the person of the party to be 
 benefited, but to the circumstances of the 
 estate out of which the portion or legacy is 
 to be paid. (2 Sp. 396.) 
 
 Where a portion is secured, and no par- 
 ticular time is fixed for the vesting, if the 
 child dies before the time when the portion 
 is needed, the portion will not be raised : 
 for it is reasonable that the land should be 
 eased of the charge, when the only motive 
 for making the same is at an end. (2 Sp. 
 398.) 
 Time for If there is a limitation to the iJarent 
 
 raising - ^ 
 
 portions. for life, with a term to raise portions at 
 twenty-one or marriage, and the interests 
 are vested, the portions must be raised 
 forthwith by sale or mortgage of the re- 
 versionary term, unless there is something 
 to indicate an jptention that the portions 
 
LEGACIES. 115 
 
 should not be raised until the term falls into t™- n. 
 
 Cap. I. 
 
 possession. (2 Sp. 40.5.) 
 
 When a legacy is given by a father or a interest. 
 person standing in loco parentis, as a pro- 
 vision for an infant, and no maintenance or 
 interest is given, though the legacy be pay- 
 able at a future day, the infant has an imme- 
 diate right to interest. (2 Sp. 409 ; 2 Eop. 
 Leg. 1257, 1270, 1348, ed. 4.) 
 
 When real estate is so settled -as that it Construc- 
 tion of pro- 
 must on the death of a parent go to his vMonsfor 
 
 * ° younger 
 
 eldest son, and provision is made, not by a owidreu." 
 stranger or relation not standing in loco 
 parentis, but by that parent or by a per- 
 son, standing in loco parentis, whether by 
 prenuptial settlement or by will, for the 
 younger children of such parent or person, 
 the Court has considered the presumption, 
 that it was intended to make provision for 
 all the children, and not to give a double 
 portion to any, to be so strong, that it has 
 let in all children unprovided for by the 
 settlement or will itself, or by means which 
 were in contemplation of the parties making 
 the settlement or will, though not strictly 
 "younger," and has excluded the child pro- 
 vided for by the family estate, even though 
 a younger child. (2 Sp. 411—113.) This 
 
116 LEGACIES. 
 
 c"p ?■ latitude of construction is not extended to a 
 
 legal limitation in a deed. (76. 412.) In 
 
 ordinary cases, the period of distribution, 
 and not the period of vesting, is the time 
 for ascertaining who is to be excluded. (76. 
 416.) 
 Construe- In deciding on the validity and interpre- 
 legaoies. tation of purely personal legacies, Courts of 
 Equity in general follow the rules of the 
 Civil Law, as recognized and acted on in the 
 Ecclesiastical Courts; but as to the validity 
 and interpretation of legacies charged on 
 land, they generally follow the rules of the 
 Common Law. (St. § 602, 608.) 
 
 With these few remarks we must dismiss 
 the subject of Legacies and Portions, as a 
 separate topic, since it is so extensive, that 
 the doctrines of Equity respecting it could 
 not be even succinctly stated, without far 
 transgressing the limits allotted to the pres- 
 ent Manual. 
 
(117) 
 
 CHAPTEE II. 
 
 or DONATIONES MORTIS CAUSA. 
 
 Courts of Equity maintain a concurrent tit. ii. 
 
 ^ •' Cap. II. 
 
 i urisdiction in all cases of this kind, where 
 
 " Jurisdic- 
 
 the assistance afforded at Law is not ade- tion. 
 quate or complete. (St. § 606 j Ward v. 
 Turner, 1 Lead. Gas. Eq. 2d ed. 721 et 
 seq.) 
 
 A donatio mortis causa is a gift of personal Definition, 
 property made by one who apprehends that 
 he is in peril of death, and evidenced by a 
 manual delivery by him or by another person 
 in his presence by his direction, to the donee 
 or some one else for the donee, of the prop- 
 erty itself, or of the means of obtaining 
 possession of the same, or of the writings 
 by which the ownership thereof was cre- 
 ated, and conditioned to take effect absolute- 
 ly in the event of his not recovei-ing from 
 his existing disorder, and not revoking the 
 gift before his death. (St. § 606, 607 a— 
 607 c; 1 Sp. 196; 2 Sp. 912; Powell v. 
 Hellicar, 26 Beav. 261.) Thus, negotiable 
 
118 
 
 DONATIONBS MOETIS CAUSA. 
 
 Tit. II. 
 Cap. II. 
 
 What may 
 be the sub- 
 ject of such 
 donations. 
 
 Mixed 
 character 
 of such 
 donations. 
 
 notes, promissory notes, payable to order, 
 though not indorsed, bills of exchange, 
 though not indorsed, bank notes, bankers' 
 deposit notes, cheques, policies of insurance, 
 bonds, and mortgages, may be the subject of . 
 such donations ; and goods in a warehouse 
 may be given in like manner by a delivery 
 of the key. (St. § 607 a ; 1 Sp. 196 ; 2 Sp. 
 657; Bouts v. Ullis, 17 Beav. 12.1; Veal v. 
 Veal, 27 Beav. 303 ; Eanldn v. Weguelin, 2,1 
 Beav. 309; Witt v. Amis, 1 Best & Sm. 109, 
 33 Beav. 619.) 
 
 A donation of this kind partakes partly of 
 the characteristics- of a gift inter vivos, and 
 partly of those of a legacy. It diifers from 
 a legacy in these respects : 1. It takes effect 
 sub modo from the delivery in the lifetime of 
 the donor ; and therefore it cannot be proved 
 as a testamentary act in the Court of Pro- 
 bate. 2. It requires no assent or other act 
 on the part of the executor or administrator 
 to perfect the title of the donee. It differs 
 from a gift inter vivos in certain respects in 
 which it resembles a legacy : 1. It is revo- 
 cable during the donor's lifetime. 2. It may 
 be made to the wife of the donor. 3. It is 
 liable to the debts of the donor on a defi- 
 ciency of assets. (St. § 606 a; 1 Sp. 196.) 
 
DONAXIONES MORTIS CAUSA. 119 
 
 Words of absolute gift, if accompanied by ^j^- Yj 
 expressions showing that the intention was ^^^ 
 that the property should be enjoyed only in ^°^^^ 
 the event of the death of the donor, will be 
 suflScient to constitute a donatio mortis causa. 
 (2 Sp. 912.) 
 
 Evidence of the clearest and most un- Evidence, 
 equivocal character is requisite to support a 
 donatio mortis causa. (^Gosnahan v. Grice, 
 15 Moo. P. C. 215.) 
 
( 120) 
 
 CHAPTEE III. 
 
 OP EXPRESS PRIVATE TRUSTS EVIDENCED 
 BY SOME WRITTEN DOCUMENT, 
 
 Tit. n. I. A TRUST, when used in the sense of an 
 
 Cap. m. ' 
 
 I. Definition 
 
 equitable interest, is not now, as it was at 
 of a trust, one time, considered a chose in action ; it is 
 a beneficial interest in, or a beneficial owner- 
 ship of, real or personal property, unattended 
 with the possessory and legal ownership 
 thereof. (See Smith's Executory Interests, 
 annexed to Fearne, § 40 — 46, 50 ; 2 Sp. 875.) 
 n. Extent II. Trusts arisinsr under wills are exclu- 
 
 01 juris- ° 
 
 teS^tef °''^'' sively within the jurisdiction of Courts of 
 Equity. (St. § 1058.) And indeed this is 
 the case with most matters of trust. (St. 
 § 962.) 
 
 rn. Divi- in. Trusts may be divided into three 
 
 sion of . , . , 
 
 trusts, kinds: express trusts, implied trusts, and 
 constructive trusts. The last two, however, 
 are frequently confounded, or at least classed 
 together, and are sometimes designated by 
 the name of implied trusts, and sometimes 
 by the name of constructive trusts. 
 
EXPRESS PRIVATE TRUSTS. 121 
 
 IV. An express trust is a trust which is (^"'jJi 
 clearly expressed by the author thereof, or ^^ ^^u;. 
 may fairly bo collected from a written docu- express"" 
 
 . trust. 
 
 ment. 
 
 V. The Statute of Frauds requires aliyMoa«of 
 
 ^ declaration 
 
 declarations of trust of freehold, copyhold, or "*' '™^'- 
 leasehold lands, toncmcntSjOr hereditaments, 
 to be evidenced by some writing signed by 
 the party declaring the same. But declara- 
 tions of trust of money, even though secured 
 on real estate, or of chattels personal, need 
 not be so evidenced. (St. § 972 ; 1 Sp. 497, 
 498 ; 2 Sp. 19, 20, 897 ; Peckham v. Taylor, 
 31 Beav. 250.) 
 
 A declaration of trust, if bond fide, is valid, 
 though at a distance of time, and evea after 
 the trustee has committed an act of bank- 
 ruptcy. (2 Sp. 21.) And if the signed docu- 
 ment refers to any other document, which 
 ehows what was meant by the parties, that 
 is sufficient. (2 Sp. 22.) And if the terms 
 of the trust do not sufiioiontly appear upon 
 the face of the instrument, evidence may be 
 received to show the position of the party 
 signing, and the circumstances by which 
 he knew himself to be surrounded, and 
 the credibility of the instrument. (2 Sp. 
 22.) 
 
 11 
 
122 EXPKBSS raiVATB TRUSTS. 
 
 (Jap' III ' ^^ ^^ ^^°* necessary that there should be 
 any actual transfer of property to render a 
 declaration of trust effectual. If a person 
 declares himself to be a trustee for another of 
 money or personal property to be recovered, 
 whether in writing or by acts or declarations 
 of a decisive and definite nature sufficiently 
 proved, the transaction will be binding 
 against him and bis representatives. (2 Sp. 
 897; Dij>ple v. Corles, 11 Hare, 183; Peck- 
 ham V. Taylor, 31 Beav. 250; Grant v. 
 Grant, 34 Beav. 623.) And if a person, by 
 writing or by word, directs his debtor to 
 hold the money dae in trust for a third per- 
 son, and such direction is communicated to 
 •the debtor and the don«e, an effectual trust 
 is created in favor of the donee. (2 Sp. 
 53, 898; Faterson v. Murphy, 11 Hare, 88; 
 Vandenberg v. Palmer, 4 K. & J. 204.) But 
 a mere promise to give, without valuable 
 consideration, or a defective conveyance, gift, 
 or assignment, without valuable considera- 
 tion, where the party means actually to vest 
 the legal ownership in the donee, or in any 
 other person as trustee for him, will not be 
 considered as a declaration of trust. (2 Sp. 
 57, 887 ; Dipple v. Corles, 11 Hare, 183.) 
 And it has been held that a memorandum 
 
EXPRESS PRIVATE TRUSTS. 123 
 
 espressive of " an intention to leave " or a j^'^- "j 
 " determination to appropriate " a fund to a 
 person, and a declaration, during a last ill- 
 ness, of a wish that it should be given to such 
 person, does not amount to a declaration of 
 trust, but is a mere inoperative indication of 
 a testamentary intent not carried into effect. 
 {Be Glover, 2 Johns. & Hem. 186.) 
 VI. Where uses are expressly and clearly vi. By what 
 
 ■^ words a 
 
 limited, which the Statute of Uses will not trust may 
 
 ' be created. 
 
 execute, that is, convert into legal estates, 
 trusts are thereby created ; for modern useSj 
 unexecuted by the Statute, are trusts, just as 
 all uses were trusts before the Statute was 
 made. And where uses are engrafted on 
 uses, the Statute only executes the first use ; 
 so that where an estate is limited to A. and 
 his heirs, to the use of B. and his heirs, to 
 the use of or in trust for C. and his heirs, 
 the Statute executes the use to B. and his 
 heirs ; but the use to C. and his heirs is not 
 executed by the Statute, but is a trust. Nor 
 does the Statute execute uses or trusts 
 where it is requisite that the trustee should 
 continue to hold the estate in order to per- 
 form them. Nor does the Statute extend 
 to uses or trusts of chattels real or personal; 
 the words of the Statute being, " when any 
 
124 EXPRESS PRIVATE TRUSTS. 
 
 Cap Si P^''s°Ji Js seised to the use," &c., and the 
 word " seised " being inapplicable to per- 
 sonal estate. And trusts of copyholds were 
 excluded from the operation of the Statute, 
 because otherwise the rights of Lords would 
 have been infringed. (See St. § 970 ; 1 Sp. 
 466, 490 ; Tyrrell's Case, Tnd. Lead. Cas. E. 
 Prop. 2d cd. 274.) 
 
 No particular form of expression is 
 necessary to the creation of a trust. (1 Sp. 
 498; 2 Sp. 20.) And a trust may be 
 created, although there may be an absence 
 of any expressions which in terms import 
 confidence. (Page v. Cox, 10 Hare, 169.) 
 
 There are many cases, arising under wills, 
 in which it is very difficult to determine 
 whether or not a trust was intended to be 
 created. It may, however, be laid down as 
 a general rule, that expressions of recom- 
 mendation, confidence, hope, wish, and de- 
 sire are considered to create trusts, if the 
 object and the property which is to form the 
 subject of the supposed trusts are certain 
 and definite, and if, regard being had to the 
 whole context and circumstances of the 
 will, the subject-matter, the previous con- 
 duct of the testator, the situation of the 
 parties, and the probable intent, the expres- 
 
EXPRESS PRIVATE TRUSTS. 125 
 
 sions appear to have been intended to be Jit. n. 
 
 imperative; and expressions showing a de- 
 
 sire that an object should be accomplished, 
 will be deemed imperative, unless there are 
 plain express words, or there is a necessary 
 implication that the testator did not mean 
 to exclude a discretion to accomplish the 
 object or not, as the party may think fit. 
 But if either the object or the subject is not 
 definite; or if a discretion and a choice to 
 act or not is given ; or if the prior disposition 
 of the property imports an absolute owner- 
 ship, as where it is given without any fetter 
 in a former part of the will ; or if the motiv© 
 assigned is beneficial to the donee; or if 
 the words which contemplate a benefit to 
 a third person appear to be expressive of 
 the motive by which the testator was ac- 
 tuated, rather than of a trust in favor of 
 such person ; as where a legacy is given to 
 A. the better to enable him to maintain his 
 children ; or where a testator bequeaths a 
 sum to trustees upon trust to pay the in- 
 come to a person for life, "nevertheless to 
 be by him applied towards the maintenance, 
 education, or benefit of his children," which 
 are legal obligations in the case of a father, 
 though only moral obligatiops in the case 
 
 11* 
 
126 EXPRESS PRIVATE TRUSTS. 
 
 Tit. g. of a mother J no valid trust will be created 
 
 by words of this character. (St. § 1069, 
 
 1070, and notes; 2 Sp. 64 — 71; Harding v. 
 Glyn, 2 Lead. Cas. Eq. 2d ed. 789 et seq. ; 
 Briggs v. Penny, 3 Mac. & Gord. 546; 2 
 Eop. Leg. 1446; Thorp v. Owen, 2 Hare, 
 607; Macnab v. Whitbread, 17 Beav. 299; 
 Beeves v. Baker, 18 Beav. 372 j Castle v. 
 Castle, 1 D. & J. 352; Gulley v. Cregoe, 24 
 Beav. 185; Byne v. Blackburn, 26 Beav. 
 41; Wheeler v. Smith, 1 Gif. 300; Quayle v. 
 Davidson, 12 Moo. P. C. 268 ; Fox v. Fox, 
 27 Beav. 301; Bonser v. Kinnear, 2 Gif. 
 195; Shovelton v. Shovelton, 32 Beav. 145; 
 B<% V. Thompson (No. 1), 32 Beav. 646; 
 ifari V. Trifte, 32 Beav. 279; 1 D. J. & S. 
 418; Mood v. Oglander, 34 Beav. 513; 
 ^arrs v. Fewkes, 2 Hem. & Mil. 60 ; Faton 
 V. Watts, L. E. 4 Bq. Cas. 151.) And any 
 words by which it may be expressed, or 
 from which it may be implied, that the 
 first taker may apply any part of the sub- 
 ject to his own use, are held to prevent the 
 subject of the gift from being considered cer- 
 tain. And a vague description of the object, 
 that is, a description by which the giver 
 neither clearly defines the object himself, nor 
 names a distinct class out of whichthe first 
 
EXPRESS PRIVATE TRQSTS. 127 
 
 taker is to select, or which leaves it doubtful ^'J- jj-^ 
 
 "what interest the object or class of objects is 
 
 to take, will prevent the object from being 
 certain within the meaning of the rule. (St. 
 § 1070, note; 2 Sp. 69, 72, 78; Green v. 
 Marsden, 1 Drewrj, 646.) But where in 
 terms or in effect a gift is made to a parent 
 for or toward the support of himself and 
 children, the mere fact that the parent may 
 apply part of the property for his own sup- 
 port does not render the subject uncertain, 
 so as to prevent the disposition from being 
 construed to create a trust in favor of his 
 children. It is only an uncertainty which 
 the Court can remove by ascertaining,- if 
 necessary, what should be devoted to the 
 children. (2 Sp. 463 — i65.) Again, the 
 family of A. will often be a sufficient desig- 
 nation of the objects; for the context may 
 render it definite, and show that it means 
 the beir-at-law of A., or, in other cases, the 
 children of A., or; in others, the brothers 
 and sisters or next of kin of A., according 
 to the Statutes of Distribution. Generally 
 speaking, neither the husband nor the wife 
 will be considered as included under the 
 word "family." Although the term "re- 
 lations" is still more indefinite, the Court 
 
128 EXPRESS PRIVATE TRUSTS. 
 
 cIp III ^^® executed a trust in favor of relations, 
 by giving the property, when personal, to 
 the next of kin, according to the Statutes of 
 Distribution, but per capita. (St. § 1071; 
 6 Sp. 73 — 76.) But where a testator devised 
 his leasehold estates to his brother A. for- 
 ever, "hoping he would continue them in 
 the family," this did not create a trust, for 
 the words gave a choice, and the object was 
 not definite. (St. § 1072; 2 Sp: 75.) And 
 where a testator bequeathed to his wife all 
 the residue of his personal estate, "not 
 doubting but that she will dispose of what 
 shall be left at her death to his two grandr 
 children;" these words did not create a 
 trust, because the property would be un- 
 certain ; for it might be just what she chose 
 to leave. (St. § 1073.) 
 VII. Douee VII. But it Sometimes happens that al- 
 
 excluded 
 
 from taking though no Valid trust is created, vet it is 
 
 benehcially, ^ ' •' 
 
 inteSded^ clear that a trust was intended; and in such 
 valid!'' ""* instances the person to whom the gift is 
 made is as completely excluded from taking 
 beneficially as if a valid trust were created. 
 This is the case where the words are directly 
 or indirectly imperative, but the objects are 
 too indefinite, or are not pointed out at all, 
 or not in such a way that the Court can take 
 
EXPRESS PRIVATE TRUSTS. 129 
 
 judicial notice of them. (St. § 979 a, b; J^'J-Ji^f 
 
 Briggs v. Penny, 3 Mac. and Gord. 546 ; Ber- 
 
 nard v. Minshull, 1 Johns. 276.) 
 
 VIII. Express trusts are either executed viii. Trusts 
 
 executed 
 
 or executory, in the sense of directory. A andexccu- 
 trust executed is a trust which appears to be 
 •finally declared by the instrument creating 
 it. A trust executory or directory is a trust 
 raised cither by a stipulation or by a direc- 
 tion, in express terms or by necessary im- 
 plication, to make a settlement or assurance 
 to uses or upon trusts which are indicated 
 in, but do not appear to be finally declared 
 by, the instrument containing such stipula- 
 tion or direction. (Smith's Executory In- 
 terests, annexed to Fearne, § 489; 2 Sp. 128, 
 129, 131, 132, 133; Lord Glenorchy v. Bos- 
 ville, 1 Lead. Cas. Eq. 2d ed. 1 et seq.; Tur- 
 ner Y. Sargent, 17 Beav. 203; Boncaster v. 
 Doncaster, 3 K. & J. 26; Fullerton v. Marten, 
 1 Drew. & Smale, 31.) 
 
 In the case of trusts executed, a Court of 
 Equity puts the same construction on tech- 
 nical words as that which is put by a Court 
 of Law on limitations of legal estates. But 
 in the case of trusts executory, Equity con- 
 siders the apparent intent to be collected 
 from the whole instrument, or, where the 
 
130 EXPRESS PBIVATE TRUSTS. 
 
 T'T. 11. language is doubtful, the presumable intent, 
 — rather than the strict import of technical 
 words. (See 2 Sp. 131—135.) Thus, where 
 the legal estate is limited to one for life, re- 
 mainder to the heirs male of his body, he 
 takes an estate tail male under the rule in 
 Shelley's case. And where, in a will or 
 voluntary deed, there is a mere direction to 
 settle an estate on one for life, to be followed 
 by a remainder to the heirs of his body, as 
 there is nothing of an inchoate or executory 
 nature in the instrument itself, and the 
 words are formal and explicit, and there is 
 nothing in the instrument to show or afford 
 a presumption that the words were not in- 
 tended to be used in their technical sense, 
 the mere reference to a further instrument 
 does not render the trust executory, and 
 therefore the limitations, as regards the rule 
 in Shelley's case, receive the same construc- 
 tion as similar words used in limiting legal 
 estates. But if marriage articles express 
 that an estate is to be settled on the hus- 
 band for life, with remainder to the heirs of 
 his body, there the inchoate nature of the 
 instrument, combined with the allusion to 
 a further instrument, renders the trust ex- 
 ecutory; and as the issue in this case are 
 
EXPRESS PRIVATE TRUSTS. 131 
 
 purchasers for valuable consideration, so ^''^•JJi 
 
 ^ ' Cap. III. 
 
 Equity -will construe the articles as giving 
 
 an estate for life only to the husband, with 
 a remainder in tail to the children. (2 Sp. 
 136.) 
 
 IX. Trusts in real propertv, which ai'c ix. Trusts 
 
 r r ./J governed by 
 
 exclusively cognizable in Equity, are gene- Igfega"'^^ 
 rally governed by the same rules as legal *^'*'^=- 
 estates (1 Sp. 492, 499, 500, 502, 875, 876, 
 878.) But, 1. The construction put upon Exceptions, 
 trusts executory, as we have before seen, 
 differs, in some respects, from that which 
 prevails in regard to legal estates and trusts 
 executed. 2. Before the late Dower Act, 
 Coarts of Equity held that trust estates were 
 not subject to dower; because, before the 
 question was tried, it was the general opinion 
 that, by the creation of a trust estate, dower 
 was prevented from attaching; and it is a 
 maxim that, communis error facit jus; and 
 to have held that trust estates were subject 
 to dower, would have affected a large pro- 
 portion of the estates in the kingdom. (1 
 Sp. 501.) 3. An equitable estate, being inca- 
 pable of livery of seisin and of every form of 
 conveyance which operates by the Statute 
 of Uses, a mere declaration of trust, if in 
 writing signed by the party bound or his 
 
132 EXPRESS PRIVATE TRUSTS. 
 
 Sp'ni "gs"'' lawfully authorized, was held suflS- 
 — cient to transfer such equitable estates; ex- 
 cept that a fine or recovery was required, 
 where the same would have been necessary 
 if the estate had been a legal estate. (See 
 St. § 974, 974 a, and notes, and § 975; 1 Sp. 
 497, 500, 506, 877; and as to executory 
 trusts, see pp. 15, 16, 129, supra.') In prac- 
 tice, however, trust estates have been usually 
 conveyed in the same manner as legal estates. 
 (1 Sp. 506.) 4. Trusts were independent of 
 the rules of the Common Law founded on 
 tenure ; so that a life interest in a trust 
 estate was not forfeited on any alienation 
 by the tenant for life. (1 Sp. 500, 505.) 
 X. Trusu X. Lon a; terms for years are often created 
 
 of terms. ° 
 
 for securing the repayment of money lent 
 on mortgage, and for other purposes. Prior 
 to the Statute 8 & 9 Vict. c. 112, such terms 
 did not determine on the mere performance 
 of the trusts for which they were created, 
 unless there was a special provision to that 
 effect; but the legal interest remained in the 
 trustee, after thej' were performed ; and at 
 Law the term continued to bo a term in 
 gross, as distinct and separate from the in- 
 heritance as it was at first. But in Equity 
 the term might become attendant on the 
 
EXPRESS PRIVATE TRUSTS. 133 
 
 inheritance by express declaration, so as to ^'^. n^ 
 
 follow the descent to the heir, and all the 
 
 alienations made of the inheritance, or of 
 any particular estate or interest carved out 
 of it by deed or by will or by act of Law, 
 and so as not to be devisable, before the late 
 Wills Act, without the formalities requisite 
 for devising real estate, and, in short, so as 
 to be governed in Equity by the same rules 
 generally as the inheritance. Again, a sat- 
 isfied term might become attendant on the 
 inheritance, with the same eifects, by mere 
 implication; for, as Equity always consid- 
 ers who has the right to the land in con- 
 science, if the term was not subject to any 
 ulterior limitation to which the inheritance 
 was not subject, and the owner of the in- 
 heritance was entitled to the whole trust 
 of the term, it was attendant on the inheri- 
 tance "by implication. ^ 
 
 In consequence of satisfied terms being 
 deemed terms in gross at Law, but capable 
 of being rendered completely subservient to 
 the ownership of the inheritance in Equity, 
 they were often made of the greatest use 
 in protecting the inheritance from mesne 
 estates, charges, and incumbrances. Thus, 
 if a bond fide purchaser for valuable con- 
 
 12 
 
134 EXPRESS PRIVATE TRUSTS. 
 
 cip'iii sideration, mortgagee, lessee, or other in- 
 
 cumbrancer, took a conveyance, lease, or 
 
 assignment, defective by reason of some 
 estate, charge, or incumbrance, subsequent 
 to the creation of a long-satisfied term for 
 years and prior to his own conveyance, 
 lease, or assignment, and of which he had 
 no notice at the time of his contract, he 
 might effectually protect himself against all 
 persons claiming under such prior estate, 
 charge, or incumbrance, by taking an as- 
 signment of the satisfied term to a trustee, 
 for himself, or by taking an assignment 
 thereof to himself where he took the con- 
 veyance, lease, or assignment of the estate 
 or interest to be protected in the name of a 
 trustee; for he might use the legal estate 
 in such satisfied term, to defend his posses- 
 sion during the continuance of the term ; 
 or, if he had lost the possession, to recover 
 it. (See St. § 998—1002, and notes, Sugd. 
 Cone. View, 477.) 
 
 By the Stat. 8 & 9 Vict. c. 112, § 1, every 
 satisfied term which was attendant on the 
 31st of December, 1845, was on that day 
 to cease, except that, if attendant by ex- 
 press declaration, it was to afford the same 
 protection as it would have afforded if it 
 
EXPRESS PRIVATE TRUSTS. 135 
 
 had continued to subsist, but had not been tit. ii. 
 
 assigned or dealt with after that day. And 
 
 by § 2, every term which, after the Slst of 
 December, 1845, should become satisfied 
 and attendant, was to cease immediately- 
 upon the same becoming so attendant. 
 
 An attendant term might at any time be 
 disannexed by the proper acts of the parties 
 in interest, and be turned into a term in 
 gi-oss. (St. § 1002.) 
 
 A trust term may be conveyed as well as 
 devised, so as to give successive interests to 
 successive takers ; whereas a legal term can 
 only be devised in that manner. (1 Sp. 
 513.) 
 
 XL A person in whose favor a trust has xi. Trusts 
 
 created 
 
 been created may affirm it, and enforce the without 
 
 '' ' cestm, que 
 
 performance thereof, although it was created ^^^j^ij ^ 
 without his knowledge, if at least it is not 
 revoked by the author of the trust before 
 it is so affirmed. (St. § 972.) 
 
 XII. Equity will enforce a trust where xii. what 
 
 . . 1 1 ■ • -11 -ii trusts will 
 
 it IS executed, or where it is raised by will, be enforced, 
 even though it is a mere voluntary trust ; 
 l^ut it will not enforce an executory trust 
 raised by a covenant or agreement, unless 
 it is supported by a valuable consideration. 
 (See cases referred to, St. § 793, 793 a; 
 
136 
 
 EXPRESS PRIVATE TRUSTS. 
 
 Tit. II, 
 Cap. III. 
 
 Xin. Exe- 
 cution of 
 marriage 
 articles. 
 
 XIV. As- 
 signments 
 for benefit 
 of creditors. 
 
 2 Sp. 52, 57, n. (e), 129, 255; MHson v. 
 Ellison, 1 Lead. Cas. Eq., 2d ed. 199, et seq. 
 And as to the distinction between executory 
 and executed, see supra, p. 129.) 
 
 XIII. Marriage articles will be specifi- 
 cally executed on the application of any 
 person within the scope of the consideration 
 of the marriage, or of those claiming under 
 any such person. But they will not be spe- 
 cifically executed on the application of per- 
 sons who are volunteers, even of a wife or 
 child by a subsequent marriage; although 
 where the bill is brought by persons who 
 are within the scope of the consideration, 
 or by those claiming under them, Courts 
 of Equity will decree a specific execution 
 throughout, as well in favor of the mere 
 volunteers, as of the plaintiff; as the Courts 
 either execute them in toto, or not at all. 
 (St. § 986, 987 ; 2 Sp. 287.) 
 
 XIV. Putting the bankrupt and insolvent 
 laws out of the case, a person is at liberty 
 to assign all his property for the benefit of 
 his creditors, though it may be for the pur- 
 pose of defeating some particular creditor 
 of his execution in an action commenced 
 by him against the debtor. For a debtor, in 
 securing the equal distribution of his effects 
 
EXPRESS PRIVATE TRUSTS. 137 
 
 among all his creditors, is only performing a tit. ir. 
 
 moral duty. But such an iissignment must 
 
 be free from fraud and misrepresentation. 
 (2 Sp. 350, 352; Worsely v. De Mattos, 
 Lead. Gas. Merc. Law, 438; Harman v. 
 Fishar, Id., 455.) 
 
 Preferences and priorities of particular 
 creditors are ordinarily valid, in generaV as- 
 signments made by debtors, in discharge of 
 their debts, except under the laws of bank- 
 ruptcy and insolvency. (St. § 1036 ; 2 Sp. 
 350, 351, 352.) But a debtor cannot vest 
 his property in one of his creditors for the 
 pui'pose of hindering and delaying his other 
 creditors, and compelling them to come to 
 terms; for such a deed is fraudulent and 
 void. (^Smith v. Hurst, 10 Hare, 30.) 
 
 Assignees under general assignments, 
 such as assignees in cases of bankruptcy and 
 insolvency, take only such rights as the 
 assignor or debtor had at the time of the 
 general assignment; and consequently a 
 prior special assignee will hold against them, 
 without giving notice of his- assignment. 
 (St. § 1038.) 
 
 In order to entitle the creditors named in 
 a general assignment for the benefit of cred- 
 itors to take under it, it is not necessary 
 
 12* 
 
1S8 EXPRESS PRIVATE TRUSTS. 
 
 Tit. II. that they should be technical parties thereto, 
 
 unless they are named in the assignment as 
 
 parties, and are expressly required to execute 
 before they can take under its provisions. It 
 is sufficient if they have notice of the trust 
 in their favor, and assent to it; and if there 
 is no stipulation for a release or any other 
 condition in it which may not be for their 
 benefit, their assent will be presumed, till 
 the contrary appears. (St. § 1336 a. See 
 Biron v. Mount, 24 Beav. 642.) Until, 
 however, the creditors have assented to the 
 trust, and given notice thereof to the as- 
 signee, an assignment of this kind, in which 
 the creditors are not parties and have not 
 executed, is deemed revocable by the debtor, 
 in Equity as well as at Law, whether the 
 creditors are individually named or not. 
 (St. § 1036 b; Steele v. Murphy, 3 Moo. 
 P. C. 445.) 
 
 Where creditors have acted under a deed 
 of composition, and treated it as valid, the 
 Court of Chancery will also act under it and 
 treat it as valid as against the assignor, 
 though the creditors have not executed it 
 within the time prescribed. (2 Sp. 354.) 
 
 Whore there is an assignment to two trus- 
 tees, and one assents and the other dissents. 
 
EXPRESS PRIVATE TRUSTS. 139 
 
 the property passes to the assenting trustee. J"- ii- 
 (2 Sp. 351.) ''— ■ 
 
 XV. In those cases where a consignment xv. Eevo- 
 
 - cafoleness of 
 
 or remittance is made, with orders to pay aconsign- 
 
 ' i. ./ ment or 
 
 over the proceeds to a third person, the ap- .'^^"'"'™°^- 
 propriation is not absolute, but revocable at 
 any time before the third person has assented 
 thereto, and notice of the same has been 
 given to the mandatory; for it amounts to 
 no more than a mandate from a principal 
 to his agent. And it will be revoked by any 
 disposition inconsistent with the execution 
 of the mandate. But after such assent and 
 notice, the thii-d person may avail himself of 
 it in Equity, without any reference to the 
 assent or dissent of the mandatory; for his 
 receipt of the property binds him to follow 
 the order of his principal. (St. § 1045, 
 1046.) ' 
 Where a person executes and delivers a RevociiMe- 
 
 ness of a 
 
 deed of conveyance of equitable property to conveyance 
 a volunteer, or where the legal estate is P'^^^'iai^."'' 
 transferred and a trust of it is declared in iJ,''fc°^,"o'f^ 
 favor of a volunteer, and there is "nothing J^'"^^^^^ 
 upon the face of the transaction or from jf 
 
 contemporaneous evidence to show that it 
 was intended to be revocable, it cannot be 
 revoked or avoided in any way. . And even 
 
140 EXPRESS PRIVATE TRUSTS. 
 
 cIf III 'f t^6 donor should procure a re-transfer of 
 
 stock by the trustees, and, where it is in 
 
 writing, ehould cancel the instrument, and 
 by will make a provision for the same cestuis 
 que trust, the settlement will be binding; 
 and unless the subsequent provision is ex- 
 pressed to be substitutionary, the cestuis que 
 trust, if the gift is not by way of portion, 
 will take both ; but they will have their 
 election, if it is expressed to be in substitu- 
 tion. And stock not being within the Stat. 
 27 Eliz. c. 4, a purchaser of it from the donor 
 cannot avoid the voluntary settlement or 
 gift. (2 Sp. 882—883; see supra, 102.) 
 
 The keeping in the donor's possession a 
 deed so executed as to pass the estate, is not 
 of itself sufficient to enable the donor to 
 revoke it by cancellation or by will ; for, the 
 estate having passed, it would require the 
 active interference of the Court of Chancery 
 to re-vest the estate ; and it is no ground for 
 such interference that the act was foolishly 
 or inconsiderately done. (2 Sp. 885.) 
 XVI. Effect XVI. Where a will contains a direction 
 
 of a direc- 
 tion or or power to raise money out of the rents and 
 
 ou'f of"eSto profits of an estate to pay debts or portions, 
 
 ^r ebts, ^^^ ^jjj ^]^g money must bo raised and paid 
 
 without delay, Courts of Equity have so con- 
 
EXPRESS PRIVATE TRUSTS. 141 
 
 strued those words as to give a power to raise J"- JJ; 
 
 ° ^ Cap. III. 
 
 by sale or mortgage, unless restrained by 
 
 other words. (St. § 1064, 1064 a; 2 Sp. 
 316.) 
 
 XVII. Prior to the enactments which xvii. obu- 
 
 •111 1 • 1 1 gation of 
 
 Will be presently mentioned, where real purehaserto 
 
 see to the 
 
 property was devised to be sold for, or was application 
 1 r J 'of the pur- 
 
 charged with, the payment of definite and ^^^ng" 
 
 ascertained sums only, and such payment was ^les.'^^ 
 to take place at the time when the required 
 amount was to be raised, the purchaser of 
 such property was bound to see that the pur- 
 chase-money was applied in the fulfilment of 
 the trust, unless expressly exempted by a 
 provision by the author of the trust. But 
 where the pi-operty sold constituted the nat- 
 ural and primary fund for the payment of 
 debts generally, or was expressly charged 
 with, or conveyed or devised for, the payment 
 of debts generally, and therefore, in order to 
 ascertain the sums to the paymen't of which 
 the projierty was liable, It would be necessary 
 for the purchaser to institute proceedings in 
 Chancery, or where the purchaser, if bound 
 to see to the application of the money, would 
 be involved in a trust of long continuance ; 
 there, the purchaser, unless he had notice 
 that there were no debts, or notice of fraud. 
 
142 EXPRESS PRIVATE TRUSTS. 
 
 Tit- II- was not bound to see to the application of 
 
 Cap. Ill '^■^ 
 
 the purchase-money. (See St. § 1126, 1127, 
 
 1128, 1130—1134; Mliot v. Merryman, 1 
 Lead. Cas. Eq., 2d ed. 45 et seq.) 
 Specific In illustration of these rules, it may be 
 
 illustration observed, that asthepersonal estate, whether 
 
 of the above 
 
 rules as to consisting of chattels personal or of chattels 
 
 the pur- ° ^ 
 
 chaser's j-eal, IS liable at the Common Law, and con- 
 
 obligation. ' ' 
 
 stitutes the natural and primary fund for 
 the payment of the debts of the testator 
 generally, the purchaser of the whole or of 
 any part of it, without notice that there were 
 no debts, or that the sale was not made for 
 paj'ment of debts, was not bound to see that 
 the purchase-money was applied by the ex- 
 ecutors in the discharge of the debts (St. § 
 1126, 1128; 2 Sp. 372, 377), even if the 
 testator had directed his real estate to be 
 sold for payment of debts, whether specified 
 or not, and had made a specific bequest of a 
 part of his- personal estate for a particular 
 purpose, or to a particular person, although 
 such specific bequest was known to the pur- 
 chaser, provided he had no reason to suspect 
 anj^ fraudulent or unauthorized purpose; for, 
 otherwise, before a person could become a 
 purchaser of personal estate specifically be- 
 queathed, it would be indispensable for him 
 
EXPRESS PRIVATE TRUSTS. 143 
 
 to come into a Court of Equity to have an ^J- jj^ 
 
 account taken of the assets of the testator; 
 
 and of the debts due from him, so as to 
 ascertain -whether it was necessary for the 
 executor to sell. (St. § 1129; 2 Sp. 375, 
 376, 377.) 
 
 The same rule, for the same reason, applied 
 to real estate devised for or charged with the 
 payments of debts generally (St. § 1130 ; 2 
 Sp. 380, 382); even though the trust was 
 only to sell, or was a charge for, so much as 
 the pei'sonal estate was deficient to pay the 
 debts, and even though a speciffc part of the 
 real estate was devised for a particular pur- 
 pose or trust, if the whole real estate was 
 charged with the payment of debts gene- 
 rally by the will. If, however, the trustee 
 has only a power to sell, and not an estate 
 devised to him, then, unless the personal 
 estate is deficient, the power to sell does not 
 arise. (St. § 1131; 2 Sp. 382.) 
 
 Where, in cases of real estate, the trust 
 was for the payment of legacies or annuities 
 only, or of specified or scheduled debts alone, 
 or of both, but not of debts generally, the 
 rule was different; for they are ascertained, 
 and the purchaser must therefore see that 
 the money is duly applied. But where the 
 
144 EXPRESS PRIVATE TRUSTS. 
 
 Tit. iIj devise was for payment of debts generally, 
 and also for the payment of legacies or annu- 
 ities, the purchaser was not bound to see 
 to the application of the purchase-money; 
 because, to hold him liable to see the lega- 
 cies or annuities paid would in fact have 
 involved him in the necessity of taking an 
 account of all the debts and assets. (St. 
 § 1132; 2 Sp. 379, 382, 386, 389.) 
 
 And the purchaser was not bound to see 
 to the application of the purchase-money, 
 where the specific objects of the trust were 
 not pointed out. (2 Sp. 381.) 
 
 But if there was collusion between the 
 purchaser and the trustees, who were guilty 
 of a misapplication, or if there was notice 
 that the sale or mortgage was made for the 
 purpose of a breach of trust, the estate was 
 
 liable. (2Sp. 384.) / 7/<it/t//j^ 
 
 In determining as to the liability of the 
 purchaser, the Court looked to the deed or 
 will alone, and not to the circumstances of 
 the testator or to subsequent events ; so that 
 where a testator created a trust or charge 
 for payment of debts generally and legacies, 
 and there were no debts at the death of the 
 testator, or the debts were paid after the 
 death of the testator, and the legacies only 
 
EXPRESS PRIVATE TRUSTS. 145 
 
 were left as a charge, that cireumstanco Q^lh 
 
 alone did not prevent the application of the 
 
 rule. (2 Sp. 383; Stroughill v. Anstey, 1 D. 
 M. & G. 653.) 
 
 W here the time appointed by the devise 
 for a sale of real estate had arrived, and the 
 persons entitled to the money were infants 
 or unborn, there the purchaser was not 
 bound to see to the application of the pur- 
 chase-money, because that might have in- 
 volved him in a trust of long continuance; 
 But if an estate was charged with a sum of 
 money payable to an infant at his majority, 
 the purchaser was bound to see the money 
 duly paid on his coming of age; for the 
 estate remained chargeable with it in his 
 hands. (St. §1133; 2 Sp. 387.) 
 
 Where the money was to be applied by 
 the trustees to purposes which required, on 
 their part, time, delay, and discretion, it 
 seems the purchaser was not bound to see 
 to the application of the purchase-money. 
 (St. §1134; 2Sp. 387.) 
 
 By the stat. 22 & 23 Vict. c. 35, s. 23, it is 
 enacted that the bond fide payment to and 
 the receipt of any person to whom any pur- 
 chase or mortgage money shall be payable 
 upon any express, or implied trust, shall 
 
 13 
 
146 EXPRESS PRIVATE TRUSTS. 
 
 i^iT. IL effectually discharge the person paying the 
 
 same from seeing to the application or being 
 
 answerable for the misapplication thereof, 
 unless the contrary shall be expressly de- 
 clared by the instrument creating the trust 
 or security. By the stat. 23 and 24 Yict. c. 
 145, 8. 12, it is also enacted that receipts for 
 purchase-money given by the persons exer- 
 cising the power of sale thereby conferred 
 on mortgagees shall be sufficient discharges 
 .to the purchaser, who shall not be bound 
 to see to the application of the purchase- 
 money. And by s. 29 it is also enacted 
 that the "receipts in writing of any 
 trustees or trustee, for any money pay- 
 able to them or him by reason or in the 
 exercise of any trusts or powers reposed or 
 vested in them or him, shall be sufficient 
 discharges for the money therein expressed 
 to be received, and shall effectually exon- 
 erate the persons paying such money from 
 seeing to the application thereof, or from 
 being answerable for any loss or misappli- 
 cation thereof" A general power to give 
 receipts was provided by the stat. 7 & 8 
 Vict. c. 76, but it only extended from the 
 1st of January to the 1st of October, 1845, 
 from which day it was repealed. 
 
EXPRESS PRIVATE TRUSTS. 147 
 
 XVIII. As lonor as the relation of trustee Jit. ii 
 
 * ° Cap. III. ■ 
 
 and cestui que trust, under an express trust, xvm~ 
 is acknowledged to exist, lapse of time can Stime wui 
 constitute no bar to an account or other qmtrmt. 
 proper relief for the cestui que trust. (St. § 
 1520 a; 2 Sp. 48, 62.) And it may be 
 observed, that where a sum of money is 
 bequeathed to an executor, upon trust to be 
 laid out on certain trusts, as soon as it is 
 severed from the bulk of the estate, it ceases 
 to be a mere legacy, and the bar of the 
 Statute of Limitations does not apply; for 
 it is then a case of express trust, which is 
 specially excepted. (2 Sp. 62.) But when 
 this relation of trustee and cestui que trust 
 is no longer admitted to exist, or time and 
 long acquiescence have obscured the nature 
 and character of the trust, or the acts of the 
 parties or other circumstances give rise to 
 presumptions unfavorable to its continu- 
 ance, a Court of Equity will refuse relief, 
 upon the ground of lapse of time and its 
 inability to do complete justice. (St. § 
 1520 a.) 
 
 XIX. There are numerous instances in xix. Trust 
 
 . . performed 
 
 which the Court has caused the main intent, astothe 
 
 maiD 
 
 namely, the trust, to be performed, where intent, 
 the qualifications intended to secure its due 
 
148 EXPRESS PKIVATB TRUSTS. 
 
 ^'p' ra performance have in fact presented obstacles 
 to its being performed at all ; as where the 
 consent of a particular person is required, 
 and such consent is perversely withheld, or 
 cannot be obtained by reason of his infancy, 
 (2 Sp. 45.) 
 XX. Where XX. The legal and equitable estates may 
 
 legal and £> i J 
 
 equitable coexist Separately and distinctly in the 
 
 estates have jr ,/ j 
 
 existence** Same person, unless they are both coex- 
 tensive and of the same quality; in which 
 case the equitable estate will merge in the 
 legal estate, or rather will so coalesce with 
 it as to cease to have any separate exist- 
 ence. (See 2 Sp. 879, 880.) 
 
( 149 ) 
 
 CHAPTBE IV. 
 
 OF EXPRESS CHARITABLE TRUSTS (a). 
 
 I. Charities are so highly favored in the tit. n. 
 
 Law, that charitable gifts have received 
 
 a more liberal construction than gifts to favored, 
 individuals. (St. § 1165; 2 Sp. 246, 247.) 
 Thus— 
 
 1. In regard to the want of proper trustees, in regard to 
 
 ° ^ ^ . ' the want of 
 
 if a testator makes a bequest for charity to proper 
 
 ^ ■' trustees; 
 
 such persons as he shall afterwards name 
 executors, or to such persons as his executors 
 shall name, and he appoints no executors, or 
 the executors die in the lifetime of the 
 testator, and no others are appointed ; or if 
 the trustees of a charitable legacy all die in 
 the testator's lifetime; or if a corporation 
 intrusted with a charity fails ; the Court of 
 
 (a) On the subject of jarisdiction in case of Charities, 
 the reader is referred to Mr. 0. D. Tudor's valuable work 
 on the Law of Charitable Trusts, 2d ed., and to Story's 
 Eq. Jur. ^ 1142 et seq., and the Act for the better Regu- 
 lation of Charitable Trusts, 16 & 17 Vict. u. 137, and the 
 Acts to amend it, 18 & 19 Vict. u. 124, and 23 4 24 
 Vict. c. 136. And as to Roman Catholic Charities, see 2S 
 A 24 Viet. c. 134. 
 
 IS* 
 
150 EXPRESS CHARITABLE TRUSTS. 
 
 ^'J- J^ Chancery will execute the charity. (St. § 
 
 1165, 1166, 1177.) So if a legacy is given 
 
 to persons who have no legal corporate 
 capacity to enable them to take as a cor- 
 poration ; as where a legacy is given to 
 the churchwardens for a charitable pur- 
 pose. And so if a corporation for whose 
 use a charity is designed is not in esse, and 
 cannot come into existence but by some 
 future act of the Crown. (St. § 1169, 1170.) 
 in regard to 2. The Court of Chancery will supply all 
 
 Qc J eel's IQ 
 
 convey- defects in conveyances, where the vendor is 
 capable of conveying, and has a disposable 
 es.tate, and the mode of conveyance does not 
 contrE^vene any statute. (St. § 1171.) 
 
 in regard to 3. In regard to the objects, it matters not 
 
 tlie objects ; 
 
 how uncertain the persons or objects may be. 
 For if a bequest is made in the most general 
 and indefinite manner simply for charitable 
 u^es, or religious and charitable purposes, eo- 
 nomine, the Court of Chancery will treat it 
 as a valid charitable bequest, and will dispose 
 of it for such charitable purposes as it shall 
 think fi,t. But where the bequest may, in 
 conformity to the express words of the will, 
 be disposed of in charity of a discretionary, 
 private nature, or be employed for any 
 general benevolent or useful purposes, or 
 
EXPRESS CHARITABLE TRUSTS. 151 
 
 for any general purpose, whether charitable 
 or otherwise, or for charitable or other 
 general purposes, at discretion, the bequest 
 will be void, as being too general and indefi- 
 nite for the Court of Chancery to execute, 
 and the property will go to'the next of kin. 
 Hence if a man bequeaths a sum of money 
 to such charitable uses as he shall direct by 
 a codicil annexed to his will or by a note in 
 writing, and he leaves no direction by note 
 or codicil, the Court of Chancery will dispose 
 of it to such charitable purposes as it shall 
 think fit. (St. § 1167.) But a bequest for 
 such benevolent, religious, and charitable 
 purposes, or for such charitable or public 
 purposes, as the trustees should thick most 
 beneficial, is void. (See St. § 1157, 1158, 
 1164, note 4 to 6th ed., 1167, 1169, 1183.) 
 And yet it has been held that a bequest for 
 such charities and other public purposes 
 in the parish of, &c., is a good charitable 
 bequest, as it must mean public purposes 
 for the benefit of that parish, and therefore 
 would refer to charities within the meaning 
 of the statute, 43 Bliz. c. 4. (JDolan v. Mac- 
 dermot, L. E. 5 Eq. Cas. 60.) 
 
 Where the giver has specified any partic- 
 ular charitable object, which is contrary to 
 
 Tit. n. 
 Cap. IV. 
 
15^ EXPRESS CHARITABLE TRUSTS. 
 
 ^- ^ the policy of the Law, or from some other 
 reason cannot be accomplished at all, or not 
 in the way prescribed, the Court will devote 
 the property to some other charitable pur- 
 pose, if the nature of the gift, or the con- 
 currence of other charitable gifts in the same 
 instrument, indicates that, although the 
 specified object was the favorite, yet it was 
 not the exclusive objectof the giver, but that 
 ' he would have substituted some other char- 
 itable object, bad he imagined that his 
 favorite design might possibly be incapable 
 of being accomplished. But where no such 
 indication appears (as where the testator's 
 object is to build a church at W., and that 
 cannot be effected), the next of kin will take. 
 (See St. § 1167—1169, 1172, 1176, 1181, 
 1182; Russell v. Kellett, 3 Sm. & G. 264.) 
 Where there are no objects ?» esse, but some 
 may arise, the Court will keep the fund for 
 them. And when there can be no such ob- 
 jects as those which are specified, or when 
 the specified objects cease to exist, the Court 
 will remodel the charity. (St. § 1169, 1870, 
 1170 a, 1176; 2 Sp. 79.) 
 in regard to 4. In regard to surplus income, if a tes- 
 
 surplus 111 
 
 income; tator Clearly shows an mtention to devote the 
 whole income of a property to charitable pur- 
 
EXPRESS CHARITABLE TRUSTS. 153 
 
 poses, it will be so applied, although his spe- Jjit: il 
 
 cific charitable dispositions do not exhaust 
 
 the whole income. (2 Sp. 248; Att.-Gen. 
 V. Corp. of Beverley, 15 Beav. 540 ; 6 D. M. 
 & G. 256, 265; 6 Ho. Lds. 189; Att.-Gen. 
 V. Trin. Goll. Camb., 24 Beav. 383.) And 
 when the increased revenues of a charity are 
 more than sufficient for the specified objects " 
 of charity, the surplus will not go to the heir 
 at law or next of kin of the founder, but will 
 be applied to the augmentation of the bene- 
 fits of the charity, or to other charitable pur- 
 poses. (St. § 1178, 1181; 2 Sp. 248; Phil- 
 pott V. St. George's Hospital, 27 Beav. 107 ; 
 Re Ashton's Charity, Id. 115.) 
 
 5. And to give another instance of the in regard to 
 favor shown to charity, lapse of time is in time." 
 Equity no bar in the case of charitable trusts. 
 (St. § 1192 a; Att.-Gen. v. Corp. of Beverley, 
 6 D. M. & Gr. 256, 265.) But the Statute of 
 Limitations, 3 & 4 "Will. IV. c. 27, s. 24, ap- 
 plies to purchasers from charities. {Magda- 
 len Coll. V. Att.-Gen., 6 H. L. 189 ; Att.-Gen. v. 
 Bavey, 4 D. & J. 136.) 
 
 II. Where money is bequeathed to charita- n. chan- 
 ble purposes abroad, the Court of Chancery 
 will secure the fund, and cause the charity 
 to be administered under its own direction, 
 
154 EXPRESS CHARITABLE TRUSTS. 
 
 Tit. II. provided the charitable purposes are to be 
 
 executed by persons residing within the 
 
 jurisdiction of the Court. (St. § 1186, 1300.) 
 But this will not be done, if the objects of 
 the charity are against Law or public policy, 
 unless the principle of such policy or Law is 
 of a national or conventional, rather than of 
 a universal and moral or religious character. 
 (See St. § 1184, 1185.) 
 
 III. Eeward III. It seems that, with a view to encour- 
 
 to iuform- 
 
 ers. age the discovery of charitable donations 
 
 given for indefinite purposes, it is the prac- 
 tice for the Crown to reward the persons who 
 made the communication, if they can bring 
 themselves within the scope of the charity, 
 by giving them a part of the fund ; and the 
 like practice takes place also in relation to 
 escheats. (St. § 1192.) 
 
 IV. Alter- IV. A charity cannot be altered by any 
 g lan y. ^^^ agreement between the heir of the 
 
 donor and the donees. (St. § 1175.) 
 
(155) 
 
 CHAPTER V. 
 
 OF IMPLIED TRUSTS. 
 
 An implied trust is a trust which is found- tit. ii. 
 
 ed on an unexpressed but presumable inten- — ^ ' 
 
 tion. (See St. § 1195, 1254.) '''*°"'''°- 
 
 1. Where, in the case of a will or other i. Effectu- 
 ating the 
 instrument, the donor of a power has a general 
 
 intention of 
 
 general intention in favor of a class, and a the donor of 
 
 '^ ' a power. 
 
 particular intention in favor of individuals 
 of that class to be carried out by the donee 
 of the power, and the particular intention 
 fails,' from its not being carried out by the 
 donee of the power, the Court will treat it as 
 a trust, and carry into effect the general in- 
 tention in favor of the class. (St. § 1061 a ; 
 2 Sp. 82, 420 ; Harding v. Glyn, 2 Lead. Cas. 
 Eq., 2d ed. 805 et seq.) 
 
 Thus, if a fund is given to such of a cer- 
 tain class of persons, or to a certain class of 
 persons in such proportions, as a third per- 
 son shall appoint, if no appointment is made, 
 the objects named will take equally. (2 Sp. 
 83 J Salusbury v. Denton, 3 K. & J. 529; 
 Heid V. Beid, 25 Beav. 469; Be White's 
 
156 IMPLIED TRUSTS. 
 
 Tit. II. Trusts, 1 Johns. 656: Lambert v. Thwaites, 
 
 Cap. V. ' ' ' 
 
 L. E. 1 Eq. Cas. 151.) But if a person, 
 
 making no gift himself, merely empowers 
 another to give property, the gift must be 
 made, or no person can claim, though the 
 persons to whom the intended gift was to 
 be confined are named. (2 Sp. 84.) 
 
 II. Where II. Where property is given upon trust, 
 and the trusts fail, either entirely or par- 
 tially, by reason of the failure of the intended 
 objects or purposes, or some of them, or of 
 the illegality or indefinite nature of the trusts, 
 
 or the prop- or some of them, or otherwise : or where the 
 
 erty is ' ' 
 
 hausted by trusts are fully and finally fulfilled, without 
 the trust, exhausting all the property out of which 
 they were to be fulfilled, there is a resillting 
 trust of such property, or of so much thereof 
 as remains unexhausted, to the person creat- 
 ing the trust, or to his heir or legal represen- 
 tatives, unless there is sufficient evidence or 
 presumption of a contrary intention, or the 
 trust is a charitable trust. (St. § 1196 a, 
 1200; 1 Sp. 510; 2 Sp. 22, 80, 243—246; 
 1 Cru.T. 12 0. 1,§ 55, 56; 1 Jarm on Wills, 
 2d ed., 475, 482 ; Att.-Gen. v. GreenhlU, 23 
 Beav. 193.) 
 Absolute But where there is an absolute, and, for 
 
 gilt, with an 
 
 ineffectual anything that appears to the contrary, a 
 
IMPLIED TRUSTS. 157 
 
 beneficial gift, with an ineffectual or partial tit. il 
 trust engrafted on it, the property, or so ~r. 
 much as is unexhausted by such partial trust, '^I'^n? 
 will remain in the donee. (See 1 Sp, 510 ; '""''°- 
 2 Sp. 23, 80.) And where there is an abso- 
 lute gift, with an illegal condition, the con- 
 dition is void, and the donee may retain the 
 whole : as where a testator bequeathed lease- 
 hold property upon condition that the legatee 
 should assign a particular part to a charity. 
 (2 Sp. 229.) 
 
 III. An implied resulting trust also arises m. convey- 
 ance with- 
 where a conveyance, transfer, devise, or be- out a con- 
 
 •^ ' ' sideration 
 
 quest of land or other property, without any l^^or*"*"* 
 
 consideration, express or implied, real or ''^"^'■ 
 
 nominal, purports or is proved to have been 
 
 made upon trust, but no distinct use or trust 
 
 is stated. (St. § 1197, 1199; 2 Sp. 57, 199, 
 
 225, 226 ; Briggs v. Fenny, 3 Mac. & Gord. 
 
 546.) 
 
 If there are any circumstances to show 
 that a trust was intended, then the onus of 
 proof is on the donee, to prove that a bene- 
 ficial gift to him was intended. If there are 
 circumstances from which it can be made 
 out that it would be a fraud in the grantee 
 to retain the property as his own, parol evi- 
 dence may be given of such circumstances. 
 
 14 
 
158 IMPLIED TRUSTS. 
 
 Ti^ H- If no such circumstances exist, the convey- 
 
 ance or transfer, if perfect, will be regarded 
 
 as a beneficial gift. (2 Sp. 199.) 
 
 If a devise is to an infant or a married 
 woman, the pi-esumption is against the devise 
 being upon trust ; yet this presumption must 
 yield to the fair construction of the will, if, 
 according to that, the testator appears to 
 have intended a trust. (2 Sp. 225.) 
 
 A discretion as to the application of the 
 
 property given may be so large, that the gift 
 
 may amount to an absolute gift; as where 
 
 there is an uncontrolled power to give away 
 
 the property as and to whom the donee may 
 
 think fit. But if the discretion is limited to 
 
 certain general purposes, though they may 
 
 be too indefinite to be enforced, the donee is 
 
 a trustee. (2 Sp. 225.) 
 
 IV. iJmi- I^' Where a person parts with or limits a 
 
 pa'rScuiar particular estate only, and leaves the residue 
 
 ouiy^^^ undisposed of, the residue results to him, 
 
 even though there may be a consideration. 
 
 (St. § 1199.) 
 
 The heir will take, as personal estate, the 
 benefit of the surplus interest in a term or 
 other particular interest carved out of the 
 inheritance for a particular purpose which 
 does not exhaust the whole, as against the 
 
IMPLIED TRUSTS. 159 
 
 devisee, where the devisee takes only what ^it. n. 
 
 remains after the particular interest so given 
 
 is carved out. (2 Sp. 230.) 
 
 A legacy to the heir or next of kin will not 
 of itself preclude their claim to the surplus 
 undisposed of. Nor will a bare intention to 
 exclude, however expressed, though accom- 
 panied by words of anger or antipathy or 
 even negative words, be sufficient to exclude 
 the heir in respect of the beneficial interest 
 in real estate undisposed of, or the next of 
 kin in respect of personalty, unless it is either 
 specifically or as part of a fund effectually de- 
 vised or bequeathed away to some one else, 
 either directly, or by the same kind of ne- 
 cessary implication as would in other cases 
 be admitted to constitute an actual gift. (2 
 Sp. 232.) 
 
 V. Before the Statute 1 Will. IV. c. 40, v. unais- 
 
 ' posed of 
 
 where a testator made no express disposition J^jfte's^ 
 of the residue of his personal estate, the estatei"' 
 executors were at Law entitled to such 
 residue ; and Courts of Equity, as the Act 
 recites, so far followed the Law, as to hold 
 the executors to be entitled to retain such 
 residue for their own use, unless it appeared 
 to have been the testator's intention to ex- 
 clude them from the beneficial interest 
 
160 IMPLIED TRUSTS. 
 
 cIpv' therein. In that case, they were held to be 
 
 trustees for the person or persons who would 
 
 have been entitled to such estate under 
 the Statute of Distributions, if the testator 
 had died intestate. And Equity laid hold 
 of any circumstance or expression in the 
 will, which might appear to rebut the pre- 
 sumption of a gift to the executors, and 
 convert them into trustees for those on 
 whom the Law would have cast the surplus 
 in case of a complete intestacy. (See St. § 
 1208 and note ; Elcock v. Mapp, 3 CI. & Fin. 
 507—508 ; Underwood v. Wing, 4 D. M. & G. 
 633,- 656, 659 ; Powell v. Merrett, 1 Sm. & G, 
 381 ; Cradock v. Owen, 2 Sm. & G. 241 ; 
 Bead v. Stedman, 26 Beav. 495 ; Saltmarsh v. 
 Barrett, 29 Beav. 474.) The stat. 1 "W. 4 fur- 
 thers the views of Courts of Equity, in nar- 
 rowing the application of the rule of Law, by 
 enacting, as to wills made by persons who 
 should die after the first day of September, 
 1830, that the executors shall be deemed by 
 Courts of Equity to be trustees for the per- 
 sons (if any) who would be entitled under 
 the Statute of Distributions in respect of any 
 residue not expressly disposed of, unless it 
 should appear by the will, or a codicil there- 
 to, that the executors were intended to take 
 
IMPLIED TRUSTS. 161 
 
 such residue beneficially. (See Harrison v. ^ir. n. 
 
 Harrison, 2 Hem. & Mil. 237.) 
 
 VI. Where real estate is directed to be vi. untiis- 
 
 posed ol 
 
 sold for certain purposes, so much of the projiuceof 
 
 ^ ^ ' real estate. 
 
 real estate, or the produce thereof, as is not 
 effectually disposed of by the will at the 
 testator'sdeath, from silence, ortheineffieacy 
 of the will itself, or from subsequent lapse, 
 results to the heir, unless the testator has 
 sufficiently declared his intention that the 
 produce of the real estate should be deemed 
 personalty,whether such purposes take effect 
 or not ; and where the sale is necessary, it 
 results to the heir as personalty ; but where 
 the sale is unnecessary, it results as part of 
 the old use, and descends to him as realty. 
 (2 Sp. 233 ;. Ackroyd v. Smdthson, 1 Lead. 
 Cas. Eq. 2d ed. 690 etseq.; Taylor v. Taylor, 
 3 D. M. & G. 190; Bobinson v. Governors 
 of London Hospital, 10 Hare, 19 ; Buchanan 
 V. Harrison, 1 Johns. & H. 662, 675.) If 
 the testator directs, either expressly or by 
 necessary implication, that the proceeds of 
 the real estate shall be considered as having 
 been converted into personalty before his 
 death, and a fortiori, if he directs that it 
 shall be treated as personal estate for every 
 purpose, whether disposed of by bis will or 
 14* 
 
162 IMPLIED TRUSTS. 
 
 Tit. n. not, and whether as regards legatees or next 
 
 of kin, such a direction operates to give the 
 
 next of kin, as against the heir, any portion 
 of the proceeds that may lapse or may not 
 he effectually disposed of. (2Sp.237.) But a 
 mere direction that the proceeds of the real 
 estate " shall he deemed part of the personal 
 estate," or even that they shall be " con- 
 sidered to all intents and purposes part of 
 the personal estate," or " shall be a fund of 
 personal and not of real estate," or a refer- 
 ence to a mixed fund by the name of " per- 
 sonal estate," is not sufiScient to give the 
 surplus of the real estate to the next of 
 kin. And any purpose, however limited, as 
 payment of costs, apparent upon the face of 
 the will, with reference to which the conver- 
 sion might have been directed, is conclusive 
 against the next of kin. (2 Sp. 238; Taylor 
 V. Taylor, 3 D. M. & G. 190; Robinson v. 
 Governors of London Hospital, 10 Hare, 19.) 
 If a testator converts his real estate for 
 all the purposes of his will, so as to affect 
 the character of the property as between the 
 real and personal representatives of persons 
 taking under the will, that will not prevent 
 the heir from taking any part which is 
 undisposed of, by way of resulting trust. 
 
IMPLIED TRUSTS. 163 
 
 (2 Sp. 234.) But what he so takes will vest tit. n. 
 
 in him as personal estate (2 Sp. 242), unless 
 
 the other parts are devoted to the payment 
 of charges, and he chooses to pay them off, 
 and thereby prevent the sale, and take the 
 estate. (2 Sp. 234.) 
 
 "Where real estate is not made a subsidiary undisposed 
 
 of part of 
 
 fund, but a testator creates from real and mixed fund, 
 personal estate a mixed and general fund, 
 and directs the whole of that fund to be 
 applied for certain purposes, as for the pay- 
 ment of debts and legacies, there he in effect 
 directs that the real and personal estates, 
 which have been converted into that fund, 
 shall answer the stated purposes pro rata, 
 according to their respective values. If any 
 of those purposes fail, then the part of the 
 fund which upon this principle would other- 
 wise have been applicable to those purposes, 
 is undisposed of. So far as that part of the 
 fand has been composed of real estate, the 
 heir is to have the benefit of it, as so much 
 real estate undisposed of, whether the estate 
 be eventually sold or not; and so far as that 
 part of the fund has been composed of per- 
 sonal estate, it is personal estate undisposed 
 of, for the benefit of the next of kin. (2 
 Sp. 235.) 
 
164 
 
 IMPLIED TRUSTS. 
 
 Tit. II. 
 Cap. V. 
 
 Undisposed 
 of part of 
 money di- 
 rected to be 
 converted, 
 or of the 
 produce 
 thereof. 
 
 Faihire of 
 objects for 
 conversion 
 under <a 
 deed. 
 
 Where money is bequeathed to be laid 
 out in land, the same principle applies as 
 where land is directed to be converted into 
 money : the conversion will operate only so 
 fiir as the will disposes of the land into 
 which it is to be converted ; so that if the 
 land is devised for a limited estate only, the 
 produce of the fund, or the fund itself, if 
 unconverted, beyond the interest so given, 
 will result to the testator's next of kin, as 
 personalty, unless it is given away to some 
 other person. (2 Sp. 235 ; Reynolds v. G-odlee, 
 1 Johns. 536, 582.) 
 
 Where real estate is settled by deed, upon 
 trust to sell for certain specified purposes, 
 and one of those purposes fails, there, 
 whether the trust for sale is to arise in 
 the lifetime of the settlor or not until after 
 his decease, the property to that extent 
 results to the settlor, as personalty, from 
 the mom.ent that the deed is executed, and 
 not to his heir, either as real or as personal 
 estate. For, the deed takes effect the moment 
 it is executed, and a constructive conversion 
 immediately takes place by force of the di- 
 rection to convert, although the actual con- 
 version is not to take place until after the 
 settlor's death. {Clarke v. Franklin, 4 K. & 
 
IMPLIED TRUSTS. 165 
 
 J. 257.) But where the whole of the pur- tit. ir. 
 
 ' ^ Cap. V. 
 
 poses for which the conversion is directed, 
 
 fail from the moment of the execution of the 
 deed, there the Court regards the ease as if 
 no conversion had been directed, and the 
 property results to the grantor as real es- 
 tate. (See Lord Eldon's remarks in Bipley 
 V. Waterworth, 7 Ves. 435, and V. C. "Wood's 
 remarks in Glq,rke v. Franklin, 4 K. & J. 
 265.) 
 
 Where, in the events that happen, the Failure of 
 
 contemplated object for which a conversion for a con- 
 version 
 of land into money or money into land is under a 
 
 directed by. will to be made, does not exist, 
 the Court will not vary the property from 
 that state in which it was found at the death 
 of the testator; for where the purpose fails, 
 the intention fails. (2 Sp. 234, 261; 
 Buchanan v. Harrison, 1 Johns. & H. 662, • 
 673.) But where any event has happened 
 on which the conversion ought to take place, 
 though the object for the. conversion after- 
 wards ceases to exist, or partially fails, the 
 property will be treated as if converted. (See 
 2 Sp. 262 ; Bagsterv. Fackerell, 26 Beav.469; 
 Wall V. Colshead, 2 D. & J. 683.) 
 
 VII. Implied trusts are often created by yii 
 charges. Where a testator devises an estate dovIm or 
 
166 IMPLIED TRUSTS. 
 
 Tr^ n. or makes a bequest in trust to pay debts 
 , — ~ or other charges, no beneficial interest passes 
 
 bequest in o j a. 
 
 debts ancT^ to the devisee, or legatee, but he is a mere 
 charges. trustee for the payment of debts or charges, 
 and, as to the residue, after payment there- 
 of, a trustee for the heir or next of kin. But 
 Devise or where property is devised -or bequeathed, 
 
 bequest 
 
 charged charsTed with or subiect to debts or other 
 
 with or sub- ° •' 
 
 ject to debts charges, the whole beneficial interest passes 
 
 and charges. *=• ' ' 
 
 to the devisee or legatee, subject only to the 
 payment of the debts or other charges. (St. 
 § 2245; 2 Sp. 23 n. (b), 226; Hepstinstall v. 
 Gott, 2 Johns. & H. 449; Clarke v. Hilton, 
 L. E. 2 Eq. Cas. 810.) 
 Indirect In the interpretation of wills, favor to 
 
 debts. creditors has been an acknowledged prin- 
 
 ciple of construction. (2 Sp. 327, n. (g)^ 
 And real estate may be charged by will with 
 the payment of debts, even by a mere ex- 
 pression of an intention that the testator's 
 debts should be paid, without any other in- 
 dication that they are to be paid out of the 
 real estate, and whether such expression is 
 contained at the beginning of the will, or in 
 any other part. But if a testator directs a 
 particular person to pay, it is natural to 
 presume that the testator intended him to 
 pay out of the funds with which he is in- 
 
IMPLIED TRUSTS. 167 
 
 trusted, and not out of other funds over "^^^^ ^^• 
 which he has no control; and if the executor ' 
 
 is pointed out as the person to pay, that 
 ordinarily excludes any presumption that 
 other persons, not named, are to pay, or 
 that the debts are to be paid out of the 
 real estate. (See St. § 1246, 1247, 1247 a; 
 2 Sp. ■ 320—323 ; Silk v. Prime, 2 Lead. 
 Cas. Eq. 2d ed. 82, 95 et seq.') But when 
 a will contains a direction to the executor 
 to pay the testator's debts, and then a devise 
 of real estate to him, it is considered that 
 the testator has imposed upon the executor 
 the duty of paying the debts to the extent of 
 the property given to him, and accordingly 
 the realty is held to be charged with the 
 debts. (Harris v. Watkins, 1 Kay, 438; 
 Hartland v. Murrell, 27 Beav. 204.) 
 
 "Where lands are subjected by deed to Extent of 
 
 charge. 
 
 payment of debts, they will stand charged 
 with such debts only as were owing at the 
 time of making the deed, unless a contrary 
 intention appears on the face of the deed. 
 But the reverse is the ease where the charge 
 is by will. (2 Sp. 352, 353.) 
 
 If a legacy is given generally, the legatee charge or 
 must resort to the personal estate only. 
 (2 Sp. 327, 384, 342.) But it may be 
 
168 IMPLIED TRUSTS. 
 
 ^j^- ^.■ charged on real estate either expressly or by 
 
 plain implication. (See 2 Sp. 327—329, 
 
 342.) Thus, where a testator makes a pro- 
 vision in the same clause for payment of" 
 debts and legacies together, the natural in- 
 ference is that he intends both to be paid in 
 the same way; and, therefore, if the debts 
 are payable out of a mixed fund, so will be 
 the legacies. So when a devise is made in 
 a residuary form, and yet there is no pre- 
 vious devise, legacies are thereby made a 
 charge upon the real estate ; it being con- 
 sidered that the word residue must mean the 
 residue of the real estate after payment of 
 the legacies thereout. But even where there 
 has been a previous devise, which was suf- 
 ficient of itself to account for the residuary 
 form of a subsequent devise, it has been held 
 that such residuary form rendered legacies a 
 charge upon the real estate, especially where 
 the executor is residuary devisee. (2 Sp. 
 328 ; Silk v. Prime, 2 Lead. Cas. Eq. 2d ed. 
 98 et seq. ; Francis v. Clemow, 1 Kay, 435, 
 and cases there cited ; Harris v. Watkins, 1 
 Kay, 438; Wheeler v. Howell, 3 K. & J. 198; 
 Greville v. Browne, 1 Ho. of Lords, 689.) 
 
 A general charge of legacies on real and 
 personal estate, even though expressed to be 
 
IMPLIED TRUSTS. 169 
 
 on " all the testator's estates of every de- tit. u. 
 
 scription, both, real and personal," will not 
 
 render real or personal estate specifically 
 devised or bequeathed liable to pecuniary 
 legacies, in case of a deficiency in the per- 
 sonal estate; for, the specific devisee or 
 legatee is as much an object of the testator's 
 bounty as the pecuniary legatee. (Coote 
 Mortg. 3d ed. 476 ; 6 Cru. T. 38, c. 16, § 21 ; 
 Conron v. Gonron, 7 Ho. of Lords, 168.) 
 
 Even where real estate is charged, it will 
 not be held to be liable until after the 
 general personal estate is exhausted, unless 
 there is an intention to exonerate the per- 
 sonal estate (2 Sp. 338) ; as where nothing 
 is given to the legatee but a sum to be raised 
 out of the real estate, or where a portion of 
 the real estate or its produce is appropriated 
 as a fund for payment of the legacies. (2 
 Sp. 342.) 
 
 Whether real estate is subject to debts Mode of 
 
 giving effect 
 
 or_ legacies, or both, by way of trust, or of to charges, 
 charge, or of legal power in the,nature of a 
 trust, the estate can only be turned into 
 money, and the proceeds distributed, in 
 case of dispute or difficulty, through the 
 agency of the Court of Chancery. (2 Sp. 
 365) 
 
 15 
 
170 IMPLIED TRUSTS. 
 
 Tit. II. Where an authority to sell is given to a 
 
 ^" particular person, the vendee takes under 
 
 the will : any right or title in the heir is 
 
 excluded, and there is no need of his joining 
 
 in the sale. (2 Sp. 366.) 
 
 A charge for payment of debts gives the 
 creditors a priority over the special purposes 
 of the devise. (3 Sp, 368 ) 
 
 Where the estate is charged with annu- 
 ities, it is not the course to discharge the 
 lands : they will still be charged in the 
 hands of a purchaser. (2 Sp. 369.) 
 
 Where annual and gross charges are to be 
 raised out of the rents and profits, or by sale 
 or mortgage, if those words are evidently 
 used in contradistinction, the annual charges 
 will be raisable out of the annual rents and 
 profits, and the gross charges by sale or 
 mortgage. (2 Sp. 370.) But the Court of 
 Chancery will in general consider a charge 
 on the rents and profits to raise portions, 
 legacies or debts, as a charge on the lando if 
 such charge is not restrained to the annual 
 profits, and will imply a power to sell or 
 mortgage. (2 Sp. 406 ; liori Londesborough 
 v. Somerville, 19 Beav. 295.) And yet if no 
 time for payment is appointed, as a general 
 rule a sale will not be decreed, but the por- 
 
IMPLIED TRUSTS. 171 
 
 tion must be raised in the manner directed. J"- ii- 
 
 Cap. V. 
 
 (2 Sp. 406.) 
 
 YIII. Where a person buys freehold, viii. con- 
 
 ■^ "^ veyance, 
 
 copyhold, or leasehold lands, and pays the ^'sfe™™*' 
 purchase-money for it, but takes the con- n°^e?"'°'* 
 veyance or assignment in his own name and 
 that of another or others, or exclusively in 
 the name of another or others, whether 
 jointly or successively, the trust of the 
 legal estate will result to the person who 
 advanced the purchase-money ; for it is pre- 
 sumed that the real purchaser intended the 
 purchase to be for his own benefit, and took 
 it in the name of another or others merely 
 to answer some collateral purpose. The 
 same doctrine is applied to securities taken 
 in the name of a third person. (St. § 1201, 
 1201 a; 1 Sp.511; 2 Sp. 201, 219; Dyer v. 
 Dyer, 1 Lead. Cas. Bq. 2d ed. 165 et seq.) 
 And proof of the payment of the purchase- 
 money by .the real purchaser may be fur- 
 nished either by the language of the deed 
 itself, or by some memorandum or note of 
 the nominal purchaser, or by his answer to 
 a bill of discovery, or by papers left by him 
 and discovered after his^eath. (St. § 1201, 
 note; Sp. 202.) )C/<^^'*-^<^ S ¥^ 
 In like manner, there will be a resulting purchaso ot 
 
172 
 
 IMPLIED TRUSTS. 
 
 Tit. II. 
 Cap. V. 
 
 transfer of 
 stock or 
 delivery 
 mouey. 
 
 Where a 
 resulting 
 trust is 
 rebutted ; 
 
 as where a 
 purchase or 
 security is 
 talvcn in the 
 name of a 
 wife or 
 child. 
 
 trust, where stock is purchased in the names 
 of the purchaser and a stranger, or is trans- 
 ferred by the owner into the names of himself 
 and a stranger. But if a man delivers money 
 or transfers stock to another, even though 
 he is a stranger, no implied trust will arise, 
 unless upon evidence. (2 Sp. 219.) 
 
 No resulting trust will be raised, where 
 a contrary intention, unrebutted by other 
 evidence or grounds of presumption, is indi- 
 cated by the terms or the object and purpose 
 of the instrument creating the trust, or is 
 established by written or parol evidence, or 
 may be presumed from the relation between 
 the parties. (St. § 1196 a, note, and 1202 ; 
 BeecJier v. Major, 2 Dr. & Sm. 431.) And 
 hence, in general, there will be no resulting 
 trust where a purchase is made or a security 
 is taken by a husband or a father (either 
 solely or jointly with his own name or that 
 of a stranger) in thenameof awife, orin the 
 name of a legitimate child unprovided for, or 
 even of an illegitimate child unprovided for, 
 if treated as a child, or by a grandfather in the 
 name of hisgrandchildunprovidedfor, where 
 the father is not living; because it will be 
 presumed that it was intended as an advance- 
 ment and provision in discharge of a moral 
 
IMPLIED TRtrSTS. 173 
 
 olsligation, and as a tribute of affection ; tm. n. 
 
 unless there are circumstances which fur- 
 
 nish a strong presumption of a contrary- 
 intention ; such as a contemporaneous dec- 
 laration or act to manifest an intention 
 that the party should take as a trustee. A 
 subsequent act or declaration will not suffice 
 to negative an advancement. Nor will pos- 
 session or receipt of the rents by the person 
 who advanced the money, where it may be 
 fairly regarded as having been had as a 
 trustee for the other party. (^Bumper v^ 
 Dumper, 3 Gif. 583 ; Drew v. Martin, 2 Hem.- 
 & Mil. 130 ; Williams v. Williams, 32 Beav.- 
 370; Tucker v. Burrow, 2 Hem. & M. 515,'. 
 and see references, infra.) But the presump' 
 tion of advancement may be negatived by 
 the oath of the husband or father that no' 
 advancement was intended (Devoy v. Demy, 
 3 Sm. & G. 403) ; or by his both receiving 
 and applying the income in the same way 
 as that of his general property. (Bone v< 
 Pollard, 24 Beav. 283.) 
 
 In other cases where the relationship is 
 not such as to ground a presumption of 
 advancement, the recognition of relationship? 
 and expressions of affection or regard ought 
 to be looked to, in determining whether » 
 
 15* 
 
174 IMPLIED TRUSTS. 
 
 Trr. n. beneficial gift was intended. (St. § 1202— 
 — ' 1205, and note; 2 Sp. 214—219, 227, 228; 
 Jeans V. Cooke, 24 Beav. 513, 521.) 
 IX. Limita- IX. Limitations which confer an estate 
 
 tious which _ . _ „ 
 
 would in loint-tenancy at Law have the same effect 
 
 create a "^ '' 
 
 joint-ten- jn Equity, when there are no circumstances 
 
 ancy at law. ^ ^ ' 
 
 which afford grounds for a departure from 
 the rule of Law. So that where two or more 
 persons purchase lands, and advance the 
 money in equal shares, and take a convey- 
 ance to them and their heirs, this is a joint- 
 tenancy. But joint-tenancy is not favored 
 in Equity ; so that Courts of Equity will lay 
 hold of any circumstances which will enable 
 them to vary in this respect from their 
 Joint mort- practice of following the Law. Thus, if two 
 
 gage 
 
 persons advance a sum of money by way 
 of mortgage, and take a mortgage to them 
 jointly, and one of them dies, his representa- 
 tives will be entitled to his proportion as a 
 Joint pur- trust. So if two persons jointly purchase 
 an estate, and pay unequal proportions of the 
 purchase-money, and take the conveyances 
 in their joint names ; in case of the death of 
 either of them, there will be no survivorship, 
 but they will be deemed to be purchasers in 
 the nature of partners, and to have intended 
 to hold the estate in proportion to the sum 
 
IMPLIED TRUSTS. 175 
 
 which each advanced. (St. § 1206; 2 Sp. tit. n. 
 206, 207, n, (a), 214; Lake v. Craddock, 1 — " 
 Lead. Cas. Eq. 2d ed. 145 et seq.) And 
 ■where real or personal estate is purchased 
 for partnership purposes in trade, and on 
 partnership account, the legal estate, in 
 whomsoever it may be vested, is in Equity- 
 deemed to be partnership property not sub- 
 ject to survivorship. (St. § 1207 ; 2 Sp. 
 207; 2 Bl. Com. 399.) 
 
 X. When a person has covenanted to lay x. cove- 
 nant or 
 out money in the purchase of land, or to pay trust to pur- 
 
 •/ ^ ' 1- J chaso lands. 
 
 money to trustees to be laid out in the pur- 
 chase of land to be settled, if he afterwards 
 purchases land to himself and his heirs, but 
 does not settle it, the land will be subject to 
 the trusts upon which the land to be pur- 
 chased was to be settled; for, unless the 
 contrary clearly appears, it will be presumed 
 that he purchased in fulfilment of his cove> 
 nant, upon the principle that acts capable 
 of being considered as done in fulfilment of 
 an obligation shall be so construed. (St. § 
 1210; 2 Sp. 204—206; Wilcocks v. Wilcocks, 
 2 Lead. Cas. Eq. 2d ed. 345 et seq.; Blandy 
 V. Widmore, id. 347 et seq.) And where 
 a trustee or agent is bound by a trust to 
 lay out money in landj if he actually lay 
 
176 IMPLIED TRUSTS. 
 
 Tit. n. it out, the act -will, if possible, be presumed 
 
 to have been done in execution of the trust. 
 
 (2-Sp. 204 — 206; Manningford v. Toleman, 
 1 Coll. C. C. 670; JEJx parte Poole, 11 Jur. 
 1005.) 
 
 XI. Cove- XI. It is a general rule, that if a settlor 
 
 nant to 
 
 settle lands, covenant to convey and settle lands, •with- 
 out specifying any in particular, such cove- 
 nant will not constitute a specific lien on 
 his lands, and the covenantee will be deemed 
 a creditor by specialty only (St. § 1249) ; for 
 he may have intended to purchase land for 
 the purpose, instead of settling any part of 
 the land he then had. 
 
 XII. coiiat- XII. Where an assignor of a debt has 
 
 eral securi- 
 ties for a collateral securities for the debt, the as- 
 
 debt as- ' 
 
 Bigned. signee will be entitled to the full benefit of 
 such securities, unless it is otherwise agreed 
 between 'the parties. Thus, the assignee 
 of a debt secured by a mortgage, will, in 
 Equity, be held entitled to the benefit of 
 the mortgage. (St. § 1047 a.) 
 
 XIII. Trust XIII. Equity implies a trust as to orna- 
 
 as to orna^ 
 
 mental tim- mental timber in favor of the objects of 
 subsequent limitations. So that a tenant 
 for life, or a tenant in fee, with an executory 
 devise over, may be restrained from abusing 
 his legal power, by cutting down ornamental 
 
IMPLIED TRUSTS. 177 
 
 timber, which is called equitable waste. (2 tit. ii. 
 
 Sp. 305 ; Garth v. Cotton, 1 Lead. Cas. Eq. 
 
 2d ed. 559 et seq. ; Turner v. Wright, 1 
 Johns. 740.) 
 
 XIV. An implied trust arises in favor of xiv. Trust 
 
 '^ of wife's 
 
 the wife, when she I'oins with the husband in mortgaged 
 
 ' ^ property. 
 
 effecting a mortgage upon her property, and 
 there is no recital and no special circum- 
 stances to show that her interest was in- 
 tended to be changed beyond the creation 
 of an incumbrance, and yet the equity of 
 redemption is reserved to the husband. (2 
 Sp. 306 ; Huntingdon v. Huntingdon, 2 Lead., 
 Cas. Eq. 2d ed. 838 et seq.) 
 
(178 ) 
 
 CHAPTER VI. 
 
 OF CONSTRUCTIVE TRUSTS. 
 
 Tit. n. Implied trusts, and constructive trusts, as 
 
 Cap. VI. 
 
 ^— already observed, are frequently confounded 
 
 Implied and 
 
 constructive Or classcd together: and the same trusts are 
 
 trustfi often 
 
 confounded, sometimes designated by the name of im- 
 plied trusts, and at other times by that of 
 constructive trusts. (1 Sp. 509, note (a).) 
 
 Definition But a Constructive trust, as distinguished 
 
 of a con- 
 structive both from express and from implied trusts, 
 
 may be defined to be a trust which is raised 
 
 by construction of Equity, in order to satisfy 
 
 the demands of justice, without reference to 
 
 any presumable intention of the parties. 
 
 (See St. § 1195, 1254 ; 1 Sp. 509.) 
 
 I. Repairs I. A Constructive trust may arise where a 
 
 or improve- 
 ments, person who is only joint owner, acting bond 
 
 fide, permanently benefits an estate by re- 
 pairs or improvements ; for, a lien or a trust 
 may arise in his favor, in respect of the sum 
 he has expended in such repairs or improve- 
 ments. So, where a person lawfully in pos- 
 
CONSTRUCTIVE TRUSTS. 179 
 
 session under a defective title, has made ^it. n. 
 
 ' Cap. VI. 
 
 permanent, improvements, if relief is asked 
 
 in Equity by the true owner, he will be 
 compelled to allow for such improvements ; 
 for, he who seeks for Equity must do Equity. 
 (St. § 1234—7 ; 2 Sp. 206 ; 2 Lead. Cas. Eq. 
 2d ed. 520; Kay v. Johnston, 21 Beav. 
 536.) But if a tenant for life thinks fit, 
 of his own discretion, or with the consent 
 of trustees, to expend money in improve- 
 ments, he is not entitled to have the money 
 repaid out of the corpus ; so that if he 
 becomes the purchaser of the property, he 
 will not be entitled to a deduction from the 
 purchase-money in respect of the improve- 
 ments. {Dixon V. Peacock, 3 Drewry, 388, 
 392.) 
 
 II. So, where executors, by mistake, but n. Payment 
 
 of legatees 
 
 bona fide and without fault, have paid legatees or aistrib- 
 
 ■' ; X- a ^jg„g before 
 
 or distributees before a due discharge of all creditors. 
 the debts, the latter are treated as trustees 
 for the purpose of paying the debts; because 
 they are not entitled to'^anything except the 
 surplus of the assets, after all the debts are 
 paid. (St. § 1251; 2 Sp. 297.) 
 
 III. Where a person is under a covenant ni. Cove- 
 
 nant or * 
 or agreement, for valuable consideration, to agreement 
 
 o ' to convey, 
 
 convey, transfer, or pay money or other prop- transfer, or 
 
180 CONSTRUCTIVE TRUSTS. 
 
 ^'p vi. '^^^y *° ^^ ^^^ *^® ^^^ "^ benefit of another, 
 a constructive trust arises in favor of the 
 
 pay money 
 
 property, latter against the former and his representa- 
 tives, and those claiming under him as volun- 
 teers or with notice of the covenant or agree- 
 ment; because, where things are covenanted 
 or agreed to be done. Equity treats them, for 
 many purposes, as if they were done. (See 
 St. § 1212, 1231.) 
 
 Hence, where the Court is satisfied by 
 parol evidence that a marriage took place on 
 the faith of representations, as to a settle- 
 ment, it will direct a settlement in accordance 
 with those representations, as against the 
 person making them, or his devisees, {Prole 
 v. Soady, 2 Gifl; 1.) 
 Nature of, And 80 a Constructive trust arises when 
 for.thcven- the purchasc-mouey of an estate is not paid. 
 
 dor's lieu. , _ , . , 
 
 in such case the vendor has a lien on the 
 property in Equity ; that is, a hold upon it 
 for the satisfaction of the purchase-money; 
 and, to the extent of the lien, the purchaser 
 becomes a trustee for the vendor. (See St. 
 § 1215, 1217—1220; Mackreth v. Symmons, 
 1 Lead. Cas. Eq. 2d ed. 235 et seq.) And 
 although, in some cases, it is reasonable to 
 presume a tacit consent or agreement that 
 the vendor should have such a lien, yet the 
 
CONSTRUCTIVE TRUSTS. 181 
 
 lien is not strictly attributable to such a tit. il 
 consent or agreement, but is founded on the 
 most obvious principles of natural justice. 
 (See St. § 1219, 1220.) 
 
 In general, the vendor has such a lien : where it 
 
 originally 
 
 and the burden of proof is on the purchaser, exists. 
 to establish that in the particular case it has 
 been intentionally displaced or waived by the 
 consent of the vendor. (St. § 1224.) If, on 
 the face of the conveyance, the consideration 
 is expressed to be paid, and even if a receipt 
 is indorsed on the back of the conveyance, 
 and yet the money has not actually been paid, 
 the vendor has a lien. (St. § 1225.) And if 
 a security has been taken for the money, the 
 burden of the proof has been adjudged to lie 
 on the purchaser, to show that the vendor 
 agreed to rest on the security and to dis- 
 charge the land ; or, at most, the taking of a 
 security has been deemed to be no more than 
 a presumption, under some circumstances, of 
 an intentional waiver of the lien, and not as 
 conclusive of the waiver. (St. § 1226.) 
 
 Where the vendor has a lien against the continu- 
 ance 
 vendee, it continues, notwithstanding any thereof. 
 
 devolution or transfer of the estate, except 
 where it is extinguished by the counter- 
 vailing Equity of a bond fide purchaser for 
 16 
 
182 CONSTRUCIIVE TRUSTS. 
 
 Tit. il valuable consideration without notice, when 
 clothed with the legal title. 
 Against So that It cxists against the vendee and his 
 
 whom it - 
 
 eiiets. heir, and against volunteers claiming under 
 him ; against purchasers under him, with 
 notice that he had not paid the purchase- 
 money; against purchasers, even without 
 notice, having an equitable title only; against 
 assignees claiming by a general assignment 
 under the bankrupt and insolvent laws; 
 against assignees claiming under a general 
 assignment made by a failing debtor for the 
 benefit of creditors ; and against a judgment 
 creditor of the vendee, at least befoBe an 
 actual conveyance of the estate has been 
 made to him. (See St. § 1228.) For, in each 
 of these cases (except that of the bond fide 
 purchaser for valuable consideration without 
 notice, who has only an equitable title), the 
 party in possession has obviously no more 
 equity against the lien of the vendor, than 
 the vendee himself had, but clearly stands in 
 the same situation and subject to the same 
 equity. And although the bond fide pur- 
 chaser without notice, who has only an 
 equitable title, has an equitj^ quite distinct 
 from that of his vendor, the first vendee, 
 yet the equity of such purchaser to retain 
 
CONSTRUCTIVE TRUSTS. 183 
 
 what he has paid for is only equal to that of ^^- ^j 
 the first vendor to be paid for that which he 
 has parted with; and when the equities are 
 equal, and neither of the parties has the 
 support of the legal title, the maxim applies. 
 Qui prior est tempore, potior est jure. 
 
 But the lien will not prevail against a bond 
 fide purchaser for valuable consideration 
 from the vendee, where such purchaser has 
 paid his purchase-money, and taken a con- 
 veyance of the legal estate, and had no 
 notice, at the time of paying his money, 
 that such vendee had not paid the purchase- 
 money (St. § 1228, 1229); because, having 
 given a valuable consideration for the estate, 
 without notice, he has as much equity to re- 
 tain what he has so paid for, as the original 
 vendor has to be paid for that which he has 
 parted with ; and, having this equal equity, 
 the Court will not take from him the legal 
 title with which he has. clothed himself, but 
 ■will act upon the maxim, that where the 
 equities are equal, the law shall prevail ; so 
 that, in this case, the vendor's lien is virtual- 
 ly extinguished by the countervailing equity 
 of the purchaser from the vendee. But 
 where a vendee has sold the estate to a bond 
 fide purchaser without notice, if the sub- 
 
184 CONSTRUCTIVE TRUSTS. 
 
 ^p ^ purchase-money has not been paid, the 
 original vendor may proceed against the 
 estate for his lien, or against the sub-pur- 
 chase-money in the hands of such purchaser; 
 (St. § 1232.) 
 
 Where the vendee has sold only a part of 
 it, the part retained by him is primarily 
 chargeable with the lien. Where he has 
 sold different parts to different persons, the 
 lien is to be borne rateably between them. 
 (St. § 1233 a.) 
 e7t M^^' ^^' ^^ ^ trustee, or other person standing 
 profltemlde in a fiduciary relation, acquires property, or 
 in afiduct- makes a profit by means of transactions 
 within the scope of his agency or authority, 
 or if a person employs another's property in 
 any trade or speculation there will be a con- 
 structive trust, as to the property so acquired 
 or the profits so made, for the benefit of the 
 cestui que trust, principal, owner, or other 
 party standing in the opposite relation. (See 
 St. § 1211, 1211 a, 1261 ; 1 Sp. 512 ; 2 Sp. 
 208, 299, 300 ; Fox v. Mackreth, 1 Lead. Cas. 
 Eq. 2d ed. 92 et seq.; Robinson v. Pett, 2 
 Lead. Cas. Eq. 2d ed. 206 et seq.) So that, if 
 a trustee should purchase a lien or mortgage 
 on a trust estate at a discount, he would not 
 be allowed the benefit of the difference, but 
 
 ary relation. 
 
CONSTRUCTIVE TRUSTS. 185 
 
 the purchase would be a trust for the cestui ^ra. n. 
 que trust. So if a trustee or a partner should 
 renew a lease of the trust or partnership 
 estate, he would be a trustee of such renewed 
 interest for his cestui que trust or copartner, 
 even though the lessor may have refused to 
 grant a renewal to the cestui que trust or co- 
 partner. (St. § 2211; 1 Sp. 512; 2 Sp. 
 208, 299, 300; Keech v. Sandford, 1 Lead. 
 Cas. Bq. 2d ed. 36 et seq.; Clegg v. Edmond- 
 son, 8 D. M. & G-. 787.) So if an agent, who 
 is employed to purchase for another, pur- 
 chases in his own name or on his own 
 account, he will be held to be a trustee for 
 the principal, at the option of the latter. 
 (St. § 1211 a.) 
 V. Upon analogous principles, if a mort- v. Renewal 
 
 '^ & 1 i- > of lease by 
 
 cagee or a person having a limited interest aperaon 
 
 o o u o having a 
 
 in leasehold property, renews the term on his -jj^j^gt, 
 own account, he will be held to be a trustee 
 for all the persons interested in the old lease. 
 (1 Sp. 512; 2 Sp. 299, 302, 303.) 
 
 The person so converted into a trustee of a 
 renewed lease is entitled to the costs and ex- 
 penses of renewal, with interest, and to com- 
 pensation for repairing, building, and lasting 
 improvement; and he may retain therenewed 
 lease to secure the payment. (2 Sp. 304.) 
 
 16* 
 
186 
 
 CONSTRUCTIVE TRUSTS. 
 
 Tit. H. 
 Cap. VI. 
 
 VI. Wrong- 
 ful con- 
 version or 
 alienation 
 of trust 
 property 
 
 VI. In general, whenever property of one 
 kind has been wrongfully converted into pro- 
 perty of another kind, by a trustee or agent, 
 the right in rem of the principal or cestui 
 que trust ceases, if the means of ascertain- 
 ment fail ; which of course is the case when 
 the subject-matter is turned into money, and 
 mixed and confounded in a general mass of 
 property of the same description. But 
 if the property which has been so substi- 
 tuted can be ascertained to be such, it will 
 be liable to the rights of the cestui que trust 
 or principal to which the property converted 
 was subject. (See St. § 1158, 1259-60; 2 Sp. 
 303 ; Bobinson v. Pett, 2 Lead. Cas. Bq. 2d 
 ed. 206 et seq.) 
 
 But in cases of this sort, the cestui que 
 trust or beneficiary is not at all bound by 
 the act of the other party. He has an option 
 to insist on having that into which the trust 
 property has been converted, or to disclaim 
 any title thereto, and resort to any other 
 remedy to which he is entitled, either in rem, 
 or in personam. (St. § 1262.) But he can- 
 not insist on repugnant claims : so that, in 
 the case of a sale of stock by a trustee or 
 executor, in violation of his trust, the party 
 beneficially entitled may either oblige the 
 
CONSTRUCTIVE TRUSTS. 187 
 
 trustee or executor, to replace the stock, or tit. n. 
 
 ' * ' Cap. VI. 
 
 he may affirm his conduct and take the 
 
 sum at which he has sold it, with interest 
 and any further profits he may have made by 
 the sale ; but the party beneficially entitled 
 cannot insist on having the stock replaced, 
 and having the interest instead of the divi- 
 dends, or on taking the money, and having 
 the dividends as if the stock had remained. 
 (St. § 1263.) 
 
 If, however, the trustee conveys the trust 
 property to a 6ond_/?<Ze purchaser for valuable 
 consideration, who has paid his purchase- 
 money, and had no notice of the trust at the 
 time of paying the same, the trust is extin- 
 guished. But if the trustee should after- 
 wards repurchase or otherwise become en- 
 titled to the same property, the trust would 
 be revived by construction of Equity. (See 
 St. § 1264, and note ; 2 Sp. 40, 195, 196 ; 
 Bassett v. Nosworthy, 2 Lead. Cas. Bq. 2d 
 ed. 1 et seq.) And if a trustee conveys or 
 assigns the trust property for valuable con- 
 sideration, in violation of the trust, to a per- 
 son who is aware of that circumstance, or 
 conveys or assigns it without valuable con- 
 sideration, even to a person who has no no- 
 tice, such person will be treated as a trustee 
 
188 
 
 CONSTRUCTIVE TRUSTS. 
 
 Tit. II. 
 Cap. VI. 
 
 VII. Trust 
 of mort- 
 gaged es- 
 tate. 
 
 VIII. Debt 
 due from 
 executor. 
 
 for the cestui que trust. And an executor is 
 deemed a trustee of the assets of his testa- 
 tor. (St. § 1257; 1 Sp. 512; 2 Sp. 40, 195, 
 298.) 
 
 VII. Where a person has a mortgage in 
 fee which he has not foreclosed, the legal es- 
 tate in the mortgaged premises descends to 
 his heir; but by construction of Equity he is 
 trustee for the personal representatives, and 
 through them for the persons entitled to the 
 personal estate of the mortgagee. (2 Sp. 
 296; Thornborough v. Baker, 2 Lead. Cas. 
 Eq. 2d ed. 857 et seq.) 
 
 VIII. When a debt is due from an exec- 
 utor, he is converted into a trustee of the 
 debt for the parties interested in the estate. 
 (2 Sp. 296.) 
 
(189) 
 
 CHAPTER VII. 
 
 OP TRUSTEES AND OTHEES STANDING IN 
 A riDUCIART RELATION. 
 
 I. All persons, excepting aliens, so far as tit. n. 
 regards real estate, and excepting persons 
 
 I. Who may 
 
 attainted, but not excepting femes covert be trustees. 
 and infants, may be trustees. (2 Sp. 32.) 
 And the Court of Chancery will appoint a 
 feme sole to be a trustee, (in re Garrvpbell's 
 Trusts, 31 Beav. 176.) 
 
 II. If a person who is appointed executor ii. Accept- 
 
 ance o( 
 proves the will, he becomes liable for the office. 
 
 performance of the duties of the office; and 
 
 if he is also appointed trustee, the taking 
 
 probate is an acceptance of the entire trust. 
 
 (2 Sp. 918.) 
 
 III. If a man appoints a trustee of real or iii. Devo- 
 
 lution or 
 personal estate, without naming his heir or delegation 
 
 ^ ' '^ o£ a trust. 
 
 personal representative, the heir or personal 
 representative does not become a trustee, 
 although the property may vest in such heir 
 or representative. And where two or more 
 persons and the survivor and the heirs of the 
 
190 TRUSTEES, EXECUTORS, ETC. 
 
 Tit. II. survivor are appointed trustees, and the word 
 "assigns" is not introduced, the sole or sur- 
 viving trustee cannot delegate the trust 
 either by act inter vivos or by devise. (2 Sp. 
 38.) A trustee cannot, without the consent 
 of his cestui que trust, or of the Court, de- 
 nude himself of the character of trustee, 
 till he has performed the trust. If without 
 such consent he assigns the trust, or dele- 
 gates the performance of its duties .to a 
 stranger, he will be answerable for the 
 breaches of trust committed by the as- 
 signee or stranger. (2 Sp. 920.) 
 IV. Equity IV. It is a rule in Equity, which admits 
 
 never wants 
 
 a trustee, of no exception, that where a trust exists, a 
 Court of Equity never wants a trustee. For, 
 wherever a perfect trust, as opposed to a trust 
 resting in contract or in fieri, or even an im- 
 perfect trust, if supported by a valuable con- 
 sideration, has once attach ed, whether it is an 
 express, an implied, or a constructive trust, 
 and it is not extinguished by the counter- 
 vailing equity of a bond fide purchaser for 
 valuable consideration without notice, or 
 other person having a conflicting equity, nor 
 has otherwise ceased to subsist, Equity will 
 follow the legal estate, and decree the person 
 in whom it is vested to execute the trust. 
 
191 
 
 (See St. § 976, 1159, 1162; 1 Sp. 501; 2 Sp. cIp^'vii. 
 
 51, 52, 369, 875, 876.) And the lapse of the 
 
 legal estate never has the least influence on 
 the trusts to which it is subject : if the indi- 
 viduals named fail, whether by death, inca- 
 pacity, or refusal, the Court will provide a 
 trustee : if no trustees are appointed at all, 
 the Court assumes the oflSce in the first in- 
 stance. (2 Sp. 876.) 
 
 V. Trustees, executors, directors of pri- v. No re- 
 muneration 
 
 vate companies, and other persons standing allowed. 
 in a similar situation, are not allowed, even 
 with the consent of their co-trustees, co- 
 executors, or co-adjutors, and, however ex- 
 traordinary the services they may have ren- 
 dered, to take any remuneration by way of 
 commission, or brokerage, or salary, without 
 some express or implied provision for that 
 purpose in the instrument under which they 
 claim. (St. § 466 a, 1268 ; Sp. 945,, 946; Bar- 
 rett V. Sartley, L. E. 2 Eq. Cas. 789.) And a 
 solicitor, who is a trustee, is not entitled to 
 charge for business done by him in relation 
 to the trust, as distinguished from costs out 
 of pocket, although employed to do it by his 
 co-trustee, unless there is a provision in the 
 deed or will creating the trust, enabling him 
 to receive remuneration for the transaction 
 
192 
 
 TRUSTEES, BXECUTOES, ETC. 
 
 Tit. n. 
 Cap. VU. 
 
 of such business. (Bobinson v. Fett, 2 Lead. 
 Cas. Eq. 2d ed. 206 et seq. ; Broughton v. 
 Broughton, 2 De Gex & Smale, 422; 5 D. M. 
 & G. 160.) And even where there is a pro- 
 vision that a solicitor is to be at liberty to 
 charge for his professional services, he is 
 only entitled to charge for services strictly 
 professional, and not for matters which an 
 executor or trustee ought to have done, 
 without the intervention of a solicitor; such 
 as for attendances to pay premiums on pol- 
 icies, to make transfers at the bank, attend- 
 ances on proctors, auctioneers, legatees, and 
 creditors. {Harbin v. Darby (No. 1), 28 
 Beav. 325.) But trustees are entitled, with- 
 out any express provision, to defray out of 
 the trust funds expenses legitimately and 
 properly incurred, (a) (2 Sp. 938.) 
 
 VI. By analogy to the case of a gratuitous 
 bailee, a trustee would seem to be liable only 
 for gross negligence. (St. § 1268.) 
 p,-iwAfacie On t^e Other hand, it may appear that in 
 decTsions on practice Courts of Equity have in many 
 
 the subject. ■ i , . . i 
 
 cases required extreme circumspection and 
 vigilance, while, in others, they have been 
 
 Expenses 
 allowed. 
 
 VI. What 
 care and 
 diligence 
 they are 
 bound to 
 use. 
 
 (a) The stnt. 22 A 2i Vict. u. 35, ». 31, provides that 
 the trust instrument shall be deemed to contain a clause 
 as to reimbursement. 
 
193 
 
 satisfied with tho degree of care usually ^'"'•yiT 
 
 exhibited by men in the management of 
 
 their own affairs. (St. § 1272, 1273 ; 2 Sp. 
 917.) 
 
 But the true state of the case seems to be True state 
 
 of the case. 
 
 this : that there are certain things which 
 either clearly appear in themselves to be 
 4utie8, or are established as such by the 
 uniform policy of Courts of Equity ; and to 
 these, the Courts require a rigid adherence. 
 But in regard to other points, the trustee is 
 only required to use customarj'' care and 
 diligence ; that which is usually exercised 
 by men of ordinary prudence and vigilance 
 in the management of their own affairs. 
 {^Brice v. Stokes, 2 Lead. Cas. Eq. 2d ed. 725 
 et seq.) 
 
 Thus, if a trustee omits to sell property Omission to 
 when it ought to bo sold, and it is afterwards 
 lost, although without any fault of his, he 
 is liable ; because the loss, although not 
 directly occasioned by his default, would 
 never have happened had he not failed in 
 performing what must have appeared a pal- 
 l^able, although perhaps not an urgent, duty. 
 (See St. § 1269, note; 2 Sp. 934.) 
 
 Again, Courts of Equity are in the habit improper 
 
 „ ,. . , • ,1 • invest- 
 
 of directing property in their own posses- ments. 
 
 17 
 
194 TRUSTEES, EXECUTORS, ETC. 
 
 Tit II. gion to be invested in the 31. per Cent. 
 
 Cap. VII. '- 
 
 Annuities; and it became an established 
 
 duty, on the part of trustees to whom no 
 discretion as to investments is given, to 
 invest their trust moneys in those funds. 
 And this rule, like an Act of Parliament, 
 or any other kind of Law, was supposed to 
 be well known, and no one was allowed 
 plead ignorance of it. If therefore a trustee 
 invests, or even suffers money previously 
 invested to remain, on unauthorized security, 
 however unexceptionable it might seem to 
 be, and such security afterwards fails, or if 
 he permits choses in action to remain out- 
 standing, and a loss arises, he will be liable ; 
 as also he will for the fluctuations of any 
 unauthorized fund. (See St. § 1269, note, 
 1273, 1274, note; 2 Sp. 923, 926, 934.) 
 31. per Cent. Consols is the fund which is 
 usually selected by the Court for invest- 
 ment ; but Zl. per Cent. Eeduced is fre- 
 quently resorted to for convenience, as when 
 quarterly payments have to be made. (2 
 Sp. 552, note (a).) 
 
 But where trustees are expressly autho- 
 rized to invest in Government security, they 
 are not bound to convert other kinds of 
 Government stock into the 3/. per Cents , 
 
TRUSTEES, EXECTJTOES, ETC. 195 
 
 and it would seem that they may invest in CAp-y^ 
 any kiud of Government stock. {Baud v. 
 Fardell, 7 D. M. & G. 628.) And by the 
 Stat. 22 & 23 Vict. c. 35, s. 32, " when a 
 trustee, executor, or administrator shall not, 
 by some instrument creating his trust, be 
 expressly forbidden to invest any trastfund 
 on real securities, in any part of the United 
 Kingdom, or on the stock of the Bank of 
 England or Ireland, or on Bast India stock, 
 it shall be lawful for silch trustee, executor, 
 or administrator 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." By the Stat. 23 & 24 Vict. c. 38, 
 8. 12 (a), it is enacted that this provision 
 shall operate retrospectively. And by the 
 Stat. 30 & 31 Vict. c. 132, s. 1, it is enacted 
 that " the words East India stock in the 
 said Act passed in the session holden in the 
 twenty-second and twenty-third years of Her 
 Majesty, chapter thirty-five, shall include and 
 express as well the East India stock which 
 
 (a) gee also ss. 10, 11, as to investments aathorized by 
 tlie Court of Chancery by general orders. See also 23 i, 
 24 Vict. c. 145, as to investments. 
 
196 TRUSTEES, EXECUTOKS, ETC. 
 
 ca'p'vii ^X'sted previoxisly to the thirteenth day of 
 August one thousand eight hundred and 
 fifty-nine, when the said Act received the 
 assent of Her Majesty, as Bast India stock 
 charged on the revenues of India, and 
 created under and by virtue of any Act or 
 Acts of Parliament which received her Mar 
 jesty's assent on or after the thirteenth day 
 of August one thousand eight hundred and 
 fifty-nine ; and it shall be lawful for every 
 trustee, executor, or administrator to invest 
 any trust fund in his possession or under 
 his control in the stock created by the last- 
 mentioned Act or Acts to the same extent, 
 and for the same purposes and objects, as 
 he can now invest such trust fund in the 
 East India stock which existed previously 
 to the thirteenth day of August one thou- 
 sand eight hundred and fifty-nine." And 
 by s. 2, " it shall be lawful for every trustee, 
 executor, or administrator to invest any 
 trust fund in his possession or under his 
 control in any securities the interest of 
 which is or shall be guaranteed by Parlia- 
 ment to the same extent and in the same 
 manner as he may invest such trust fund 
 in such securities as aforesaid." 
 
 According to the general understanding 
 
TRUSTEES, EXECUTORS, ETC. 197 
 
 of the profession, and the general practice ^it. ii.^ 
 of the Court, where trustees are authorized 
 to invest on mortgage of real estate, they 
 are not justified in advancing more than 
 two- thirds of the value of agricultural free- 
 holds, or one-half of the value of freehold 
 houses ; and if the value depends upon for- 
 tuitous circumstances — for instance, if the 
 property consists of a mill, or factory, or 
 house situate in a watering-place, or the 
 like — the trustees run the risk of having the 
 mortgage thrown upon themselves, and of 
 heing made answerable for the money ad- 
 vanced. (2 Sp. 925; Remarks of Sir J. 
 Eomilly, M. E., in Maeleod v. Annesley, 16 
 Beav, 605.) And an authority to lend on 
 such personal security as they shall think 
 sufficient will not justify the trustees in 
 lending it to the husband who is in trade, 
 or indeed to a trading concern. (2 Sp. 926.) 
 And an indemnity clause, declaring they 
 shall not be liable for the insufficiency of 
 any security, will not exonerate them from 
 liability, if they lend on palpably inadequate 
 security. (JDrosier v. Brereton, 15 Beav. 
 221.) 
 
 An executor will not be liable for money omission of 
 
 trustee or 
 
 allowed to remain with bankers who fail, executor 
 
 17* 
 
198 TRUSTEES, EXECUTORS, ETC. 
 
 Tit. n. where it is not an unreasonable sum for 
 
 Cap. VII. 
 
 toseTthat executors to keep in the bank. {Swinfenv. 
 fny^SLij Swinfen (No. 5), 29 Beav. 211.) But he 
 Ipplili."" will be liable, if he places his money in the 
 bands of a banker by way of investment, 
 notwithstanding an indemnity clause against 
 loss by a baaker, of money deposited for 
 safe custody. {Rehden v. Wesley, 29 Beav. 
 213.) 
 
 Again, where there are two or more trus- 
 tees or executors, it is the duty of each 
 trustee and executor to see that the prop- 
 erty is duly secured or rightly applied, as 
 the case may be. And therefore, as a 
 general rule, if by the act, direction, agree- 
 ment, or consent of one of them, the trust 
 fund is paid over to the other, even though 
 it was so paid over in order to be applied 
 by the receiver for those purposes for which 
 it was properly applicable, and the receiver 
 wastes or misapplies it, each will be answer- 
 able for the whole; except in the case of 
 money remitted to a co-trustee or co-exec- 
 utor, to be paid by him in his neighbor- 
 hood, where the trustee or executor re- 
 mitting the same, in case it had been his 
 own money, would naturally have remitted 
 it to some one to pay it away, instead of 
 
TRUSTEES, EXECUTORS, ETC. 199 
 
 undertaking a journey for the purpose of (?'''• yjV 
 
 paying it himself. (St. § 110 a, 1281, note, 
 
 and 1284, and note; 2 Sp. 870, n., 920, 934; 
 Gowellv. Gatcombe, 27 Beav. 568.) And so if 
 one trustee is allowed to retain the money, 
 and he, against the remonstrances of the 
 others, places it in the hands of solicitors to 
 invest on mortgage, and the solicitors apply 
 it to their own uses, the others will be liable. 
 {Griffiths V. Porter, 25 Beav. 236.) So if 
 one trustee improperly suffers the other to 
 detain the trust money a long time in his 
 own hands, without security, or lends it to 
 the other, or joins or acquiesces in a loan of 
 it to any one else, on insufficient security, 
 each will be liable for the whole loss which 
 may happen. And so if it is mutually agreed 
 between them, that one shall have the exclu- 
 sive management of one part of the trust 
 property, and the other trustee of the other 
 part, each will be liable for any loss which 
 may happen, even to the part of which the 
 other has the management (St. § 1274, 1284; 
 2 Sp. 920, 922, 923, 932; Mendes v. 
 Guedalla, 2 Johns. & H. 259) ; because the 
 party not acting was in default for giving 
 the other the power, and exposing him to 
 the temptation, to commit a breach of trust, 
 
200 TRUSTEES, EXECUTORS, ETC. 
 
 Tit. n. instead of exercising that control over the 
 
 property which it was his duty to exercise 
 
 for the protection and due management 
 thereof 
 Losses with- On the other hand, if a trustee or other 
 
 out want of , , . ■ . 
 
 customary person Standing in a fiduciary relation has 
 
 care or ■*■ ° '^ 
 
 diligence, jjq^ failed in doing what must have appeared 
 to be a palpable duty, and has invested the 
 property on authorized security, he will not 
 be answerable for losses which happen with- 
 out any want of customary care or diligence 
 on his part. (See St. § 1269, note, 1274, 
 note, and 465 ; 2 Sp. 937.) So that if he 
 deposits the money with a banker in good 
 credit, to be remitted to the proper person 
 by a bill di-awn by a person in due credit, 
 and the banker or drawer of the bill becomes 
 bankrupt, he will not be responsible. The 
 rule in all cases of this sort is, that where 
 a trustee acts by other hands, either from 
 necessity, or conformably to the common 
 usage of mankind, he is not to be made 
 answerable for losses. (St. § 1269; 2 Sp. 
 933 — 935.) But trustees who pay over the 
 trust funds to a wrong party in consequence 
 of a forged certificate, are liable. {Eaves 
 V. Sickson, 30 Beav. 136.) And a trustee is 
 liable for loss of a trust fund caused by the 
 
TRUSTEISS, EXECUTORS, ETC. 201 
 
 fraudulent act of hia solicitor, altliough in (,'^"-yij 
 
 employing such solicitor he may have exer- 
 
 cised ordinary care and discretion. {Bostock 
 V. Floyer, Law Eep. 1 Eq. Gas. 26.) 
 
 VII. If trustees do not invest trdst money vii. Non- 
 
 investment. 
 when they ought to do so, even though they 
 
 may make no profit by it, they are responsible 
 at the option of the cestuis que trust, either 
 for the money, and interest at 4Z. per cent., 
 or the stock which might have been pur- 
 chased therewith at the time when the in- 
 vestment ought to have been made, and the 
 dividends. (St. § 1273 a ; 2 Sp. 924; Att.-Gen. 
 V. Alford, 4 D. M. & G. 843.) 
 
 VIII. As a general rule, where a testator viii. con- 
 
 version of 
 subjects the residue of his personal estate to terminable 
 
 " ^ and rever- 
 
 a series of limitations, directly or by way of sionary 
 
 ' J J J property- 
 
 trust, without any particular directions as to fhoriJ.°dge. 
 the investment or mode of enjoyment, there, °""''^^- 
 in the absence of indications of a contrary 
 intention, such part of the residue as may 
 be wearing out (such as leaseholds), or may 
 be invested in securities which yield a high 
 rate of interest, but are not authorized by 
 the Court, must be converted and put in 
 such a state of investment as to be securely 
 available for all persons interested in it. 
 And if the residue comprises property of a 
 
202 TRUSTEES, EXECUTORS, ETC. 
 
 CAP^vii reversionary nature, that also must be con- 
 verted. The one rule protects the remain- 
 der-man, the other protects the tenant for 
 life. (See 2 Sp. 42, 552—557; Howe v. 
 Earl of Dartmouth, 2 Lead. Cas. Eq. 
 2d ed. 262 et seq.; Bate v. Sooper, 5 
 D. M. & G. 338; Boys v. Boys, 28 Beav. 4 
 —36 ; Bowe v. Bowe, 29 Beav. 276; Brown 
 V. Gellatly, L. E. 2 Ch. Ap., 751 ; and other 
 cases cited in Smith's Law of Prop. 3d ed. 
 1057.) 
 ^?' "^'JV® I^- Where personalty is directed to be 
 
 allowed for ^ *^ 
 
 conversion, converted as soon as conveniently may be, 
 there, as between the executors and the per- 
 sons interested in the estate, the personalty 
 is to be considered as converted within a 
 year; that being considered as the time 
 within which, in the generality of cases, it 
 may be converted with ordinary diligence. 
 (2 Sp. 42, 565, note (c).) 
 
 X. Invest- X. When a sum of stock is given to 
 
 ment on ^ 
 
 mortgage, trustees in trust for a married woman for 
 life, with remainder to her children, being 
 infants, the Court will not ordinarily give 
 its sanction to the fund being sold out 
 and invested on mortgage, so as to give the 
 tenant for life a greater income, though 
 power may have been given to the trustees 
 
TRUSTEES, EXECUTORS, ETC. 203 
 
 to lay out the property on real security, and q^'^I^j 
 though they join in the petition. (2 Sp. 569.) — 
 XI. It is the wise policy of Courts of xi. Equity 
 
 guards 
 
 Equity to guard against a breach of trust, »s*'°^* * 
 by prohibiting all acts which may unneces- *""*• 
 sarily place the trustee in a situation of 
 temptation. (See 2 Sp. 300.) 
 
 Hence, in all cases in which a trustee Trustee 
 places trust money in the hands of a banker, mix the 
 
 trust money 
 
 he should take care to keep it separate from ^i"i ^^^ 
 
 ^ ^ own. 
 
 his own. For, if he were to mix it with his 
 own in a common account, he would be 
 deemed to have treated the whole as his 
 own, and would be charged with interest, and 
 would be held liable to the cestui que trust 
 for any loss sustained by the banker's insol- 
 vency. (St. § 1270 ; 2 Sp. 934.) If the 
 trustee were at liberty to mix the trust 
 money with his own, he would often be 
 tempted to use it as his own ; and frequently, 
 indeed, he would not know whether the 
 money with which he was carrying on his 
 affairs was his own or not. In this way, he 
 would be naturally led to expend the trust 
 money on his own account, and loss to the 
 trust property would frequently be occa- 
 sioned, even without any design to commit 
 a breach of trust. 
 
204 TRUSTEES, BXBCUTOKS, ETC. 
 
 Tit. II. Similar observations may be made with 
 respect to an agent. (St. § 468.) 
 xii. Trus- XII. Upon the same principle, a trustee, 
 countable OP Other person standing in a fiduciary re- 
 and gains, lation, is never permitted to make any profit 
 to himself from the property with which he 
 is intrusted or from the office itself: if any 
 advantage is gained by such a person, it 
 belongs to the cestui que trust. Hence he 
 is accountable for all the interest which he 
 ought to have made, and would have made, 
 by the investment of the property on the 
 security directed by the instrument creating 
 the trust, or on the security authorized by 
 the general rule of the Court in the absence 
 of any such direction as to the mode of in- 
 vestment. And he will also be accountable 
 for any interest and gains beyond the amount 
 of such interest as above mentioned, which 
 he has actually made on, or with, or in re- 
 gard to, the trust property, whether in the 
 ordinary discharge of his duty, or iu trans- 
 actions entered into for his own benefit, as 
 he supposed, or o therw ise, if the amount of 
 such extra intores^^«^|w^can be ascer- 
 tained. (See supra, p. ISi^B^St. § 465, 
 1211, 1261, 1277, 1278, 1269,^te; 2 Sp. 
 300, 945 ; Sugden v. Crossland, 3 Sm. & G. 
 
TRUSTEES, EXECUTORS, ETC. 205 
 
 192; Groskill v. Bower, 32 Beav. 86 ; Chaplin Cip-vii 
 V. Young (No. 2), 33 Beav. 414.) Or he will — 
 be made to pay interest at the rate of 4cL or 
 51. per cent. (2 Sp. 921.) And, under ex- 
 traordinary circumstances, the Court will 
 direct annual or half-yearly rests to be made, 
 so as to give the cestui que trust the benefit 
 of compound interest: as, if a trustee, in 
 manifest violation of his trust, has applied 
 the trust fund to his own benefit and profit 
 in trade, or has conducted himself fraudu- 
 lently, or has wilfully refused to follow the 
 positive directions of the instrument creat- 
 ing the trust, as to the investment of the 
 property. (St. § 1277; 2 Sp. 921.) And 
 if a trustee or particular agent purchases 
 from his cestui que trust, even at a public 
 auction, unless the cestui que trust intended 
 that the trustee should buy, and there has 
 been no fraud, concealment or advantage 
 taken on the part of the trustee, the cestui 
 que trust has the option of taking to or re- 
 pudiating the transaction. (2 Sp. 300, 301, 
 943, 944; supra, 82-3; Luff v. Lord, 34 
 Beav. 220.) A person may indeed grant a 
 beneficial interest, or make a present, to 
 his trustee, agent, or receiver; but the lat- 
 ter must show that the dealing was fair, and 
 
 18 
 
206 TRUSTEES, EXECUTORS, ETC. 
 
 dAp'vii *^** ^^^ grantor was perfectly free in the 
 
 matter, and had the same knowledge as he 
 
 himself had. (2 Sp. 301, 944; Bassett v. 
 Hartley, L. E. 2 Eq. Gas. 789.) 
 xiii. Be- XIII. A trustee (as in certain cases we 
 for each ' have noticed, p. 188-9) is responsible for his 
 andde- own acts and defaults, and foH;hoso wrong- 
 (>/^\Jbr((f/^^ acts and defaults of his co-trustees to 
 ' which he is privy, and in which, though 
 without any corrupt motive, he expressly, 
 tacitly, or virtually acquiesces, or which 
 would not have happened but for his own 
 act or default. Thus, if two trustees have 
 properly sold out trust moneys, and one of 
 them hands the cheque for the proceeds to 
 the other, who misapplies the money, they 
 are both liable. {Trutch v. Lamprell, 20 
 Beav. 116 ; Morton v. Brocklehurst, 29 Beav. 
 504.) And so if two trustees execute a 
 release for trust money, which is then re- 
 ceived by one and invested by him on im- 
 proper security, the other is liable : for it 
 was his duty to see that it was properly in- 
 vested, (Thompson v. Finch, 22 Beav. 316.) 
 And where two trustees, who were directed 
 to invest on mortgage or in stock, retained 
 money in a bank, and one died, and the other 
 applied it to his own use, it was held that 
 
TRUSTEES, EXECUTORS, ETC. 207 
 
 the estate of the former was liable, though cl"--^!^ 
 the other might have sold out stock on the 
 death of his co-trustee. (^Qibhins v. Taylor, 
 22 Beav. 344.) And the same rule applies 
 to executors and other persons standing 
 in a fiduciary relation. But trustees and 
 others standing in a fiduciary relation are 
 not otherwise responsible for the acts or 
 defaults of each other. (2 Sp. 918, 928.) 
 
 There is, however, an important distinc- Distinction 
 
 .... . . between 
 
 tion in connection with this point, between trustees and 
 
 executors in 
 
 the case of mere executors and the case of "gTiJ *<> , 
 
 the eifect of 
 
 trustees; which, nevertheless, does not mil- joining J" 
 
 ' ' ' receipts. 
 
 itate against the application of the above- 
 stated rule both to trustees and executors, 
 but is founded in the different power with 
 which they are legally invested, and amounts 
 only to this : that a particular circumstance 
 which would afford a presumption of the per- 
 formance of an act involving responsibility, 
 in the case of an executor, will not afford 
 any presumption thereof in the case of a 
 trustee. Thus trustees have only a joint 
 interest, j)Ower, and authority, and must all 
 join both in conveyances and receipts ; and 
 yet it would be impracticable in some cases, 
 and expensive and inconvenient in others, 
 to require that all should together actually 
 
208 TRUSTEES, EXECUTORS, ETC. 
 
 CAP^'vii J'^ceive the trust money from the person by 
 
 whom the same may be payable. Hence, it 
 
 cannot be inferred from a trustee's joining 
 in a receipt that he has received any part 
 of the money. But where there are co- 
 executors, each has a several right to re- 
 ceive the debts due to the estate, and all 
 other assets, and is competent to give a valid 
 discharge by his own separate receipt ; and 
 therefore, if they join in a receipt, it is 
 purely a voluntary act, and it will be pre- 
 sumed that they jointly received the money. 
 In each case, however, the same rule ap- 
 plies as to responsibility for money received ; 
 although, in the one case, the party, being a 
 trustee, is not presumed to have done the act 
 which would make him responsible, namely, 
 the act of receiving the money 5 because the 
 act done by him is as likely to have been a 
 mere formal act, as not; whereas in the 
 other case, the party, being an executor, is 
 presumed to have done the act involving re- 
 sponsibility; because he has done that which 
 an executor, who has not actually received 
 the money, is not called upon to do. (As to 
 these passages respecting acts and defaults 
 for which a trustee or other person standing 
 in a fiduciary relation is responsible, see St. § 
 
TRUSTEES, EXECUTORS, ETC. 209 
 
 1280, 1280 a, and note; 2 Sp. 928, 929, 932; (Tit.h.^ 
 
 Brice v. Stokes, 2 Lead. Gas. Bq. 2d ed. 725 
 
 et seq.) 
 
 The trustee indemnity clause does not ex- T™stee 
 
 •^ indemnity 
 
 onerate a trustee from the consequences of o'a^e- 
 a breach of trust. (Brumridge v. Brum- 
 ridge, 27 Beav. 5.) Its insertion leads 
 many, in ignorance of this, to accept a 
 trust, and many others to be so remiss as 
 to give their co-trustees the opportunity of 
 committing breaches of trust, whereby such 
 trustees are involved in a Chancery suit, 
 ■which, however, often necessarily proves 
 unavailing to remedy the loss occasioned to 
 the cestuis que trust (a). 
 
 XIV. " Every person who acquires per- xiv. 
 
 Breach of 
 
 sonal assets by a breach of trust or a devas- trust by an 
 
 executor. 
 
 tavit by an executor, is responsible to those 
 who are entitled under th e will, if he is a party 
 to the breach of trust. Generally speaking, 
 he does not become a party to the breach of 
 trust by buying, or receiving as a pledge, for 
 money advanced to the executor at the time, 
 anypartof the personal assets, even knowing 
 them to be such, whether specifically given 
 by the will or otherwise ; because the sale or 
 
 (a) Tbe Stat. 22 & 23 Viot. u. 35, ». 31, provides that 
 trust instruments shall be deemed to contain these clauses. 
 
 18* 
 
210 TKUSTBES, EXECUTOES, ETC. 
 
 Tit. 11 pledge is held to be prima, facie consistent 
 
 with the duty of an executor. Generally 
 
 speaking, he does become a party to the 
 breach of trust by buying or receiving in 
 pledge, any part of the personal assets, not 
 for money advanced at the time, but in satis- 
 faction of his private debt; because this sale 
 or pledging is prima facie inconsistent with 
 the duty of an executor." (^Per Sir John 
 Leach, in Keane v. Roberts, 4 Mad. 357, 
 cited St. § 580 ; see also 2 Sp. 373-4, 379.) 
 And if an executor or administrator disposes 
 of assets without a valuable consideration , the 
 assets may be followed in specie, if distin- 
 guishable : but if the property so transferred 
 is money and not distinguishable, and the 
 person taking it knew it to be part of a 
 testator's or intestate's estate, the creditors, 
 legatees, or next of kin, have a personal 
 demand, to the amount of the assets so dis- 
 posed of (2 Sp. 379.) 
 XV. Joint XV. Where executors or trustees are 
 
 breach of 
 
 trust. jointly implicated in a breach of trust, all of 
 
 them should, if possible, be brought before 
 the Court, and should be made to contribute 
 proportionably; especially where the trust 
 property is to be brought back to be ad- 
 ministered by the trustees, or whore a general 
 
TRUSTEES, EXECUTORS, ETC. 211 
 
 administration is involved. (See obscrva- „'^"-,|Jv 
 
 ^ Cap. VII. 
 
 tions of L. C. B. Eichards, In re Ghertsey 
 Market, 6 Price, 278 ; Perry v. Knott, 4 
 Beav. 179; Munch v. Cockerell, 8 Sim. 219; 
 Devaynes v. Robinson, 24 Beav. note to p. 
 99. But see contra, Ex parte Angle, Barn. 
 425.) 
 
 But each of the trustees, who are jointly 
 implicated in a breach of trust, is responsible 
 for the entire loss, and liable to make it good 
 (as in certain cases we have already noticed) ; 
 so that the cestui que trust may, in ease of 
 need, proceed against any or either of them 
 singly or separately, even against the less 
 guilty. (See Walker v. Symonds, 3 Swans. 
 75 — 78 ; Bradwell v. Catchpole, ib. 78, note. 
 See also 7th Cons. Ord. rule 2 ; and Attorney- 
 General V. Corporation of Leicester, 7 Beav. 
 176 ; Kellaway v. Johnson, 5 Beav. 319 ; 
 Perry v. Knott, 4 Beav. 179 ; 5 Beav. 293 ; 
 2 Sp. 941.) And in such case, the trustee 
 or trustees who may be so singly or sepa- 
 rately compelled to make good the loss, may 
 seek contribution from the others or other 
 of them in another suit. (See Lord Eldon's 
 judgment in Walker v. Symonds, 3 Swans. 
 76—78; 2Sp. 941.) 
 
 XVI. If cestui que trust has for a long xvi. ac- 
 
 quiescence 
 
212 
 
 TRUSTEES, EXECUTORS, ETC. 
 
 Tit. II. 
 Cap. VII. 
 
 in a breach 
 of trust. 
 
 XVII. Debt 
 by breach of 
 trust is a 
 simple con- 
 tract debt. 
 
 XVIII. 
 Power of 
 trustee to 
 bind the 
 estate by a 
 sale, &c. 
 
 time acquiesced in the misconduct of his 
 trustee, with full knowledge of it, a Court 
 of Equity will not relieve him ; for vigilanti- 
 bus, non dormientibus, cequitas subvenit. (St. 
 § 1284 a.) 
 
 XVII. The debt created by a breach of 
 trust is only regarded as a simple contract 
 debt, both at Law and in Equity, even 
 where the trust arises under a deed execu- 
 ted by the trustees; unless the trustee who 
 committed such breach of trust has ac- 
 knowledged the debt under seal (St. § 
 1285, 1826; 2 Sp. 936); or unless by deed 
 he has agreed or declared that he will exe- 
 cute the trusts. (Lynch v. Grant, 2 Drewry, 
 312.) 
 
 XVIII. A trustee may bind the estate by 
 a-conveyance to a bond fide purchaser, who 
 had no notice at the time of paying his pur- 
 chase-money (St. § 1264, and note ; Basset 
 V. Nosworthy, 2 Lead. Cas. Eq. 2d ed. 1 
 et seq.) ; because, in that case, the trust is 
 virtually extinguished by the countervailing 
 Equity of the bond fide purchaser. But if 
 afterwards the trustee repurchases or other- 
 wise becomes entitled to the same property, 
 the trust revives and re-attaches upon it. 
 (St. § 1264.) And so, if a trustee or execu- 
 
TRUSTEES, EXECUTORS, ETC. 213 
 
 tor transfers trust funds upon the trusts of q^^-^\i 
 
 a settlement made or to, be made upon his or ' 
 
 her marriage, and the opposite party to the 
 marriage contract had no notice of the fact 
 that the party transferring was not benefi- 
 cial owner of the funds, it has been held 
 that the trusts of the settlement will attach 
 upon the funds. (^Cooper v. Wormald, 27 
 Beav. 266.) 
 
 The trustee may also bind the estate by a 
 bond fide mortgage, or other specific lien, 
 without notice of the trust. But the trust 
 property will not be bound by any judgment 
 or any other claim of creditors against the 
 trustee. (St. § 977.) 
 
 If, however, for a great number of years 
 a trust for raising money remains unper- 
 formed, and a sale or mortgage is proposed 
 to be made by the trustees, without an ap- 
 parent reason for the sale or mortgage, and 
 without the concurrence of the parties who 
 are in possession and receipt of the rents, the 
 purchaser or mortgagee is under some obli- 
 gation to inquire and see whether the trans- 
 action is or is not a breach of trust. (^Stroug^ 
 hill V. Anstey, 1 D. M. & G. 654.) 
 
 Where a trustee is beneficially interested 
 in part of a trust fund, and misapplies the 
 
214 TRUSTEES, EXECUTORS, ETC. 
 
 ca'p'-vii other part, his own part is liable to make 
 
 good the other part. And it has been held 
 
 that this liability exists even as against an 
 assignee of the trustee's part, who had pre- 
 viously put a distringas on it. ( Wilkins v. 
 Sibley, 4 Gif. 442.) 
 XIX. Li!> XIX. An executor or administrator is per- 
 
 bility, duty, 
 
 and power sonallv liable for the payment of debts m re- 
 
 of executor '' '■ *' 
 
 tratorw"*- ^V^^^ ^^^ ^'^ *^® extent of the personal as- 
 sets, and it is his primary and paramount 
 duty, with all convenient speed, to pay the 
 debts out of the personal estate. And hence 
 if the assets be sold or aliened by the execu- 
 tors or administrators, or any one of them, 
 for valuable consideration, the creditors can- 
 not follow them : they are absolutely vested 
 in the purchaser. (2 Sp. 372, 373.) 
 
 If an executor or administrator has, except 
 under the direction of the Court, or except in 
 the case provided for by the stat. 22 & 23 
 Vict. c. 35, s. 29, paid away the residue in 
 ignorance of the existence of any debt, he is 
 still liable. (2 Sp. 921.) But an executor 
 or administrator fairly stating the facts, and 
 paying over the assets under the direction of 
 
 (a) See Stat. 23 & 24 Vict. o. 145, s. 30, as to powers 
 of paying debts, compromising, compounding, and refer- 
 ring to arbitration. 
 
TRUSTEES, EXECUTORS, ETC. 215 
 
 the Court in an administration suit, is fully ^it n 
 
 indemnified against all existing or contin- 
 
 gent demands on the estate. {Waller v. Bar- 
 rett, 24 Beav. 413 ; Bennett v. Lytton, 2 Johns. 
 & H. 155 ; Williams v. Seadland, 4 Gif. 495.) 
 And by the stat. 22 & 23 Vict. o. 35, s. 29, 
 " where an executor or administrator shall 
 have given such or the like notices, as in 
 the opinion of the Court in which such 
 executor or administrator is sought to be 
 charged would have been given by the 
 Court of Chancery in an administration 
 suit, for creditors and others to send in 
 to the executor or administrator their 
 claims against the estate of the testator 
 or intestate, such executor or administrator 
 shall, at the expiration of the time named 
 in the said notices or the last of the said 
 notices for sending in such claims, be at lib- 
 erty to distribute the assets of the testator 
 or intestate, or any part thereof, amongst 
 the parties entitled thereto, having regard 
 to the claims of which such executor or ad- 
 ministrator has then notice, and shall not 
 be liable for the assets or any part thereof 
 so distributed to any person of whose claim 
 such executor or administrator shall not 
 have had notice at the time of distribution 
 
216 TRUSTEES, EXEOUTOKS, ETC. 
 
 Tit. II. of the said assets or a part thereof, as the 
 
 Cap. VII. ^ 
 
 case may be; but nothing in the present 
 
 Act contained shall prejudice the right of 
 any creditor or claimant to follow the assets 
 or any part thereof into the bands of the 
 person or persons who may have received 
 the same respectively." And an executor 
 has the same protection under this Act as 
 under a decree. (^Clegg v. Bowland, L. E. 3 
 Eq. Cas. 368.) ^ 
 
 By the stat. 22 & 23 Vict. c. 35, s. 30, 
 trustees, executors, or administrators may 
 apply, by petition or summons, upon a 
 written statement, for the opinion, advice 
 or direction of a judge, on any question 
 respecting the management or administra- 
 tion of the trust property, or the assets of 
 any testator or intestate. 
 
 One of two or more executors may settle 
 an account with a person who is accountable 
 to the estate, so as to bind the others and 
 the estate ; subject to any question of his 
 liability to the parties beneficially inter- 
 ested for any impropriety of conduct; and 
 subject to this also, that if there is any 
 fraud or gross error in the settlement of 
 account, it may be a ground for reopening 
 it. (6'miYA V. Everett, 27 Beav. 446, 454.) 
 
TKUSTEBS, EXECUTORS, ETC. 217 
 
 After an administration decree, an execu- „'■'", "v 
 
 ' Cap. VII. 
 
 tor can do no act to vary the rights of the — 
 parties ; as by giving an acknowledgment to 
 take a debtoutof the Statute of Limitations. 
 (Phillips V. Beal (No. 2), 32 Beav. 26.) 
 
 XX. Trustees to support contingent re- xx. tius- 
 
 t66S to 
 
 mainders are peculiarly considered as hon- support 
 
 *■ '^ contingent 
 
 orary trustees for the benefit of the family, remainders, 
 and as entitled to exercise a discretion for 
 that purpose. And hence a Court of Equity, 
 except in special cases, will not order them 
 to join in conveyances which may affect or 
 destroy the remainders. And, on the other 
 hand, in those instances where they have so 
 joined, after the first tenant in tail attained 
 his majority, no judge in Equity has gone 
 the length of holding that he would punish 
 them as for a breach of trust, even in a case 
 where a Court of Equity would not have 
 directed tlicra to join. Where, however, 
 before the first tenant in tail is of age, 
 trustees join in destroying the remainders, 
 they are liable for a breach of trust; and so 
 is every purchaser under them with notice. 
 In some few cases, however, Courts of Eq- 
 uity have compelled such trustees to join in 
 conveyances which may affect or destroy 
 the remainders, under peculiar circumstances 
 
 19 
 
218 
 
 TRUSTEES, EXECUTOBS, ETC. 
 
 Tit. II. 
 Cap. VII. 
 
 XXI. 
 
 Equity will 
 aid and 
 direct 
 trustees. 
 
 Safety of 
 trustees. 
 
 of pressure to discharge incumbrances prior 
 to the settlement ; or in favor of creditors, 
 where the settlement was voluntary; or for 
 the advantage of persons who were the first 
 objects of the settlement; as, for example, 
 to enable the first son to make a settlement 
 on an advantageous marriage. (St. §995 — 7. 
 Lewin on Trusts, 4th ed. 285—292.) 
 
 XXI. Courts of Equity will assist the 
 trustees, and protect them in the due per- 
 formance of the trust, whenever they ask 
 the aid and direction of the Court, as to the 
 establishment, the management, or the ex- 
 ecution of it. (St. § 961.) And in cases of 
 substantial doubt, it is best to ask for the 
 direction of the Court. (St. § 1276, note.) 
 
 A trustee who commits a plain breach of 
 trust is not protected from its consequences 
 by the circumstance that he honestly took 
 and followed the advice and opinion of his 
 solicitor, whatever remedy he may have 
 against his solicitor (2 Sp. 919), or that he 
 committed it with the view -of saving his 
 cestui que trust from ruin. (See 2 Sp. 920.) 
 A married woman, who by her entreaties 
 has persuaded a, trustee to commit a breach 
 of trust to rescue her husband and family 
 from ruin, has shortly afterwards made the 
 
TRUSTEES, EXECUTORS, ETC. 219 
 
 trustee liable for that breach of trust, by Jit. n. 
 
 ' •' Cap. VII. 
 
 filing a bill against him. (2 Sp. 920.) 
 
 A trustee is not in all cases to be made 
 liable upon the mere ground of his having 
 deviated from the strict letter of his trust; 
 for the deviation may be necessary or bene- 
 ficial. But when a trustee ventures to de- 
 viate from the letter of his trust, he does 
 so under the obligation and at the peril of 
 afterwards satisfying the Court, that the 
 deviation was necessary or beneficial. {Har- 
 rison V. Randall, 9 Hare, 407.) 
 
 It is impossible ever to pronounce that a 
 trustee or executor is safe from personal risk, 
 unless he has acted in the execution of the 
 trust under the directions of the Court of 
 Chancery (2 Sp. 49), or is protected by the 
 Stat. 22 & 23 Vict. c. 35, ss. 29, 30 (supra, 
 215,216.) 
 
 XXII. A trustee is entitled to have the xxii. Mu- 
 niments of 
 
 muniments of title, and, in fact, it is his duty '■'*•'=■ 
 to keep them in his possession, (2 Sp. 46.) 
 Where there is any difficulty or danger, as 
 regards the title-deeds of a trust estate, or 
 the securities of a trust fund, the Court may 
 provide for every such emergency, by or- 
 dering the deeds or the securities to be de- 
 posited in Court. (2 Sp. 46.) 
 
220 TRUSTEES, EXECUTORS, ETC. 
 
 cT"vn XXIII. If trustees are guilty of gross 
 jj^^rr" negligence, mismanagement, or misconduct, 
 remove^'" Or if, from any cause, there is a failure of 
 anli'appotat trustees qualified and willing to act, new 
 trustees will be substituted by the Court (a). 
 (St. § 1287, 1289.) And if a trustee becomes 
 insolvent, it is a good ground for his removal. 
 {Harris v. Marris (No. 1), 29 Beav. 107.) 
 And the Court has even removed a joint 
 trustee from a trust, on the mere ground 
 that the other trustees would not act with 
 him; because if he were not removed, irrep- 
 arable mischief might happen to the trust 
 property or the cestui que trust. (St. § 1288 ; 
 2 Sp. 943.) 
 
 XXIV. In- XXIV. In the case of a charitable trust, 
 
 sertion of 
 
 power to it seems the Court will direct a power to 
 
 appoint new *■ 
 
 trustees. appoint new trustees prospectively to be 
 inserted in a deed appointing new trustees ; 
 but not in the case of a private trust, unless 
 it is authorized by the instrument constitu- 
 ting the trust. (2 Sp. 37.) 
 
 XXV. XXV. Before the stat. 1 Viet. e. 26, 
 
 Where trus- 
 
 teestook gs. 30, 31, trustees took the inheritance, in 
 
 the fee. ' ' ' 
 
 those cases where it was necessary, for the 
 purpose of a trust created by will, that 
 they should take the inheritance. And in 
 
 (a) See Stat. 13 & U Vict. ». 115, S3. 27, 28. 
 
TRUSTEES, EXECUTORS, ETC, 221 
 
 the case of a devise to trustees for sale, ^J^-yn 
 
 though only a part of the inheritance was . 
 
 required to be sold, yet the Court considered 
 them as trustees of the whole inheritance. 
 (2 Sp. 295.) 
 
 XXVI. When all the duties of a trustee xxvi. con- 
 are at an end, and this is clearly shown to legal estate 
 
 to cestui que 
 
 him, and he has no notice of any disposition trust. 
 or incumbrances made by the cestui que trust, 
 he must, on demand, convey the legal estate 
 to his cestui que trust, at the peril of paying 
 the costs of any suit occasioned by his re- 
 fusal. But in cases of real doubt or difficulty, 
 a trustee, before he parts with his estate, is 
 fully justified in requiring an indemnity 
 from his cestuis que trust, or in seeking the 
 directions and indemnity of the Court. (2 
 Sp.,48.) 
 
 XXVII. A trustee is entitled to have his xxvii. 
 
 accounts examined, and to have a settlement and settle- 
 ment of 
 of them. He is also bound to render proper accounts. 
 
 accounts, if demanded, and to be always 
 
 ready with them. If the cestui que trust 
 
 is satisfied that nothing more is due to 
 
 him, he ought to close the account, and give 
 
 an acknowledgment equivalent to a release, 
 
 though the trustee cannot oblige the cestui 
 
 que trust to give a release under seal. On 
 
 19* 
 
222 TRUSTEES, EXECUTORS, ETCi 
 
 ca'pyii ^^^ other hand, if the cestui que trust is dis- 
 
 satisfied with the accounts, he ought to 
 
 require to have the accounts taken. He is 
 bound to adopt one of these two courses: he 
 is not at liberty to keep a Chancery suit 
 han_ging for an indefinite time over the head 
 of the trustee. (2 Sp. 46, 47, 921; Kemp v. 
 Burn, 4 Gif. 348.) 
 Duty of A trustee or executor is bound to render 
 
 rendering 
 
 other infer- every necessary information, and, if he have 
 not all the necessary information, he is bound 
 to seek for it, and, if practicable, to obtain 
 it (a). (2 Sp. 921.) 
 Breaking up Executors must be allowed a reasonable 
 Mtabiisii- time for breaking up a testator's domestic 
 establishment, and discharging his servants. 
 {Field V. rechett (No. 3), 29 Beav. 576.) 
 
 (a) On the subject of Trusts and Trustees, see etat. 
 1 Will. IV. 0. 60 ; 13 & 14 Vict. c. 60 ; 15 & 16 Viot. 
 c. 55 ; 10 & 11 Vict. c. 96; 12 & 13 Vict. u. 74; 22 A 23 
 Vict. II. 35 i and 23 A 24 Viot. o. 38, =. 145. 
 
 ment. 
 
( 223 ) 
 
 CHAPTEE VIII. 
 
 OF THE SPECIFIC PERFORMANCE OF AGREE- 
 MENTS AND DUTIES NOT ARISING FROM 
 TRUSTS. 
 
 I. By the Common Law, if a party who tit. ii. 
 
 ' ^ •' Cap. VIII. 
 
 ought to perform a contract or covenant, 
 
 fails to do so, no redress could be had, at law. 
 except in damages. (St. § 714.) 
 
 II. In Equity a specific performance of a n. a spe- 
 contract, covenant, or duty, will be decreed, formanoe 
 where damages would not afford an exact fe^fj!? ™ 
 compensation for the non-performance there- Snalea 
 of, whatever may be the form or character Sordcom- 
 
 ~ . . . , • . 1 . , pensation. 
 
 of the instrument containing such contract 
 or covenant, or giving rise to such duty. 
 And hence it will be decreed in all cases of 
 contracts respecting land ; because the local 
 character, vicinage, soil, easements, or ac- 
 commodations of the land, may give it a 
 peculiar value in the eyes of the purchaser, 
 so that damages, which would enable the 
 purchaser to buy other land, of the very 
 
224 SPECIFIC PERFORMANCE. 
 
 CApVm s"'"'' marketable value, would not or might 
 
 not be a complete compensation. And if a 
 
 bond is entered into, with a penalty, Equity 
 will not regard it as an option to do the act 
 required or pay the penalty, but as an agree- 
 ment to do the act at all events, of which it 
 will enforce a specific performance. (St. § 
 715, 717, 718, 739—742, 746, 751, 783—786, 
 850, 1425.) 
 
 III. Not III. But Equity will not interfere where 
 
 where they ^ '' 
 
 rcomp^fte* damages at Law would amount to a complete 
 saS."" compensation. Hence a bill for specific per- 
 formance of articles of apprenticeship cannot 
 be maintained. ( Webb v. England, 29 Beav. 
 44.) And a performance of a contract for 
 the sale of stock or goods will not be enforced 
 in ordinary cases ; because damages at Law, 
 calculated on the market price of the stock 
 or goods, are generally equivalent, in point 
 of value, to the delivery of the stock or 
 goods contracted for; inasmuch as, with the 
 damages, the purchaser may ordinarily buy 
 stock or goods of the same kind and of the 
 same value to himself. But a performance 
 of a contract respecting stock, goods, or 
 personal property, will be enforced, where 
 damages at Law could not afford a complete 
 compensation. (St. § 717—720, 746; Falcke 
 
SPECIFIC PBEFOEMANCE. 225 
 
 V. Gray, 4 Drew. 651 ; Guddee v. Butter, 1 cJ^viii ' 
 Lead. Cas. Bq. 2d ed. 640 et seq. ; Bowling — 
 V. Betjemann, 2 Johns, and H. 544.) And 
 where the specific performance of a contract 
 respecting chattels will be decreed on the 
 application of one party, on the ground that 
 damages would not be a complete compen- 
 sation to him, Equity will entertain the like 
 suit at the instance of the other party, 
 though the relief sought by him is merely 
 in the nature of a compensation in damages 
 or value; for in all cases of this sort, the 
 Court acts on the ground that the remedy 
 ought to be mutual. (St. § 723.) The same 
 rules apply to agreements respecting per- 
 sonal acts, for the non-performance of which 
 an exact compensation may sometimes be 
 made by way of damages, while in others it 
 cannot. (St. § 722—729.) 
 
 IV. At law, contracts arid covenants to iv. At law, 
 
 sell, convey, or transfer land or other prop- and cove- 
 nants are 
 erty, are considered simply as personal considered 
 
 «/ ' i- */ ^ merely as 
 
 and executory contracts and covenants, and ^na™e5,u. 
 not as attaching to the property in any ''"^^' 
 manner as a present or future charge or 
 otherwise. (See St, § 714, 790.) But in but in 
 
 Equity, as 
 
 Equity, from the time of a contract for the performed, 
 
 ^ •' ' in regard to 
 
 sale of land, the vendor, and his heirs, and ™"^''" 
 
 ' ' ' quences. 
 
226 SPECIFIC PERFORMANCE. 
 
 ' CA^vYii ^°y *'"® claiming as a subseqent purchaser 
 under him, become, as to the land, trustees 
 for the purchaser and his heirs, devisees, or 
 vendees ; and the purchaser and his personal 
 representatives become, as to the money, 
 trustees for the vendor and his personal 
 representatives. (St. § 788, 789, 790.) 
 
 Every payment of purchase-money to the 
 vendor transfers, in Equity, to the purchaser, 
 a corresponding proportion of the estate. And 
 hence where the purchase-money is to be 
 paid by instalments, and the purchaser has 
 paid some instalments, and then declines to 
 complete, and is absolved from the liability 
 to complete the purchase, owing to the 
 default of the vendor, the purchaser has a 
 lien on the estate for the money he has so 
 paid, as against the vendor, and every mort- 
 gagee of the vendor who simply gives him 
 notice of his mortgage, without attempting 
 to prevent the completion of the contract or 
 the payments of the instalments. (Bose v. 
 Watson, 10 H. L. Gas. 672.) 
 
 Landarti- In like manner, land directed, articled, 
 
 cled or 
 
 devised tg conveved, Or devised to be sold and turned 
 
 be sold, •' ' 
 
 arUc^do/ '"^^ money, is reputed as money ; and money 
 tol)^*""^* directed, articled, assigned, or bequeathed to 
 ianr'^^'" be invested in land, has in Equity many of 
 
SPECIFIC PERFORMANCE. 227 
 
 the qualities of real estate, and in particular cJ^yYii 
 
 is descendible and devisable as such. (St. § 
 
 790 ; Fletcher v. Ashburner, 1 Lead. Cas. Eq. 
 2d ed. 659 et seq. ; Dixie v. Wright, 32 Beav. 
 662.) But the person for whose benefit the 
 conversion is to be made, may elect to take 
 the property in its unconverted state. And 
 this election he may make as well by acta 
 or declarations clearly indicating a determi- 
 nation to that effect, as by an application to 
 a Court of Equity. (St. § 793, 1213.) But 
 where it has vested in two or more persons, 
 one cannot elect without the others or other. 
 (Holloway v. Badcliffe, 23 Beav. 163.) 
 
 In general, Courts of Equity do not in- 
 cline to change the quality of the property 
 as the testator or intestate has left it, unless 
 there is some clear act or intention by which 
 he has unequivocally fixed upon it through- 
 out a definite and different character. (St. § 
 1214, 1214 a.) 
 
 V. Where the specific execution of a con- v. specific 
 
 perform- 
 
 tract respecting lands would have been de- ance 
 creed between the parties, it will be decreed between 
 
 -»■ ' persons 
 
 between all persons claiming under thom „nd?rthe 
 in privity of estate, representation, or title, p*'^*^- 
 unless other controlling equities have inter- 
 vened. (St, § 788.) Hence, if the vendor, 
 
228 
 
 SPECIFIC PERFORMANCE. 
 
 Tit. II. 
 Cap. VIU. 
 
 Purchaser's 
 heir may- 
 require the 
 money to be 
 paid out of 
 tlie personal 
 estate. 
 
 VI. Non- 
 compliance 
 with terms 
 of agree- 
 ment in 
 non-essen- 
 tial partic- 
 ulars, 
 
 or slight 
 misde- 
 scription. 
 
 before completion, dies intestate as to his 
 realty, his legal personal representative may- 
 maintain a suit against his heir and the pur- 
 chaser for a specific performance. {Eoddel 
 V. Pugh, 33 Beav. 489.) And where the heir 
 of the purchaser comes into Equity for a 
 specific performance, he may in general 
 require the purchase-money to be paid out 
 of the personal estate of the purchaser in 
 the hands of his personal representatives. 
 (St. § 790.) 
 
 VI. If the terms of an agreement, either 
 through negligence or otherwise, have not 
 been complied with in particulars which do 
 not pertain to the essence of the contract, or 
 if there has been a slight misdescription of 
 the property. Courts of Equity will never- 
 theless decree a specific performance in 
 favor of the party chargeable with the non- 
 compliance or misdescription, if compensa- 
 tion can be made for any injury that may 
 have been occasioned by the non-compliance 
 or for the misdescription of the property. 
 (See St. § 747, 748, 771, 775—777, and notes; 
 Seton V. Slade, 2 Lead. Cas. Eq. 2d ed. 429, 
 et seq.) 
 
 At Law, time is of the essence of the con- 
 tract. But in Equity it is held to be of the 
 
SPECIFIC PBEFOKMANCE. 229 
 
 essence of the contract only in cases of direct g^^'-^jj 
 stipulation that it shall be so considered, or 
 where it is obviously so from the nature of 
 the case; as where a reversion is sold, or 
 where the property sold is required for some 
 immediate purpose, as trade or manufacture, 
 or is in its nature of a fluctuating value, or is 
 of a determinable character, as an estate for 
 life, or the dealing is with an ecclesiastical 
 corporation. And even where time is of the 
 essence of the contract, it may be waived 
 by proceeding in the purchase after the time 
 has elapsed. On the other hand, although 
 time may not be originally of the essence 
 of the contract, still either party may, by a 
 proper notice, bind the other to complete 
 within a reasonable time. (^Parkin v. Tlio- 
 rold, 16 Beav. 65; Hudson v. Temple, 29 
 Beav. 5.S6; Wells v. Maxwell (No. 1), 32 
 Beav. 408 ; Lord Banelagh v. Melton, 2 Dr. 
 & Sm, 278 ; Sugd. V. & P. 14th ed. 257 et seq. ; 
 St. § 776; 2 Lead. Gas. Bq. 2d ed. 442 et seq. ; 
 Tilley V. Thomas, L. E. 5 Eq. Gas. 61.) 
 VII. Where the vendor is incapable of vii. Want 
 
 of title, or 
 
 making a complete title to all the property substantial 
 
 a I. I 1 J miadescrip- 
 
 sold, or there has been a, substantial misde- ^°"'tof 
 scription in important particulars, or the compUaSfe 
 terms have not been reasonably complied ment.''^'^^^ 
 
 20 
 
230 SPECIFIC PERFORMANCE. 
 
 oS%ni ^'**^ °" ^^^ P^^* °^ ^'^^ vendor, Courts of 
 
 Equity will generally allow the purchaser to 
 
 proceed with the purchase, pro tanto ; that 
 is, to have the contract specifically performed 
 as far as the vendor can perform it, and to 
 have an abatement made out of the purchase- 
 money or a compensation. (St. § 779 ; Sug. 
 V. & P. 14th ed. 305; Eughes v. Jones, 3 D. 
 F. & J. 397, 315.) But this course will not be 
 taken where the land is little more than half 
 the quantity stated ; for in such a case, the 
 purchaser must either take it at the price 
 named, or may rescind the contract. {Earl 
 of Durham v. Sir P. Legard, 34 Beav. 614.) 
 
 vni. Acoi- VIII. Where a man has performed a val- 
 
 dental iuca- 
 
 pacity of uablc part of an agreement, but is incapable 
 
 performing '- o ' i 
 
 mainderof ^'^ performing the remainder, by a subse- 
 menl'^^^ quent accident, without any default on his 
 part, Courts of Equity will enforce the agree- 
 ment in his favor (allowing such compensa- 
 tion as may be just), in case he is not in statu 
 quo as to the part which he has performed, 
 but not otherwise. (St. § 772, 796, 797.) 
 IX. Per- IX. In some cases, a performance of an 
 
 formance 
 
 submodo. agreement will be decreed, not according to 
 the letter of the contract, if that would be 
 unconscientious, but according to the change 
 of circumstances. (St. § 775.) 
 
SPECIFIC PERFORMANCE. 231 
 
 X. Of course as agreement entered into cl^'vm 
 by parties incompetent to contract, such as x. Igree- 
 infants ajid femes covert, will not be enforced enforced! 
 against them. Nor will it be enforced in parties were 
 favor of such parties : because the remedy potent to 
 
 contract, 
 
 ought to be mutual. (St. § 787, 751, note ; 
 Vansittart v. Vansittart, 4 K. & J. 62.) 
 
 XI. Nor will Courts of Equity enforce a xi. Nor 
 
 where the 
 
 contract, although it is written, if the terms terms are 
 
 ' ° ' not certain 
 
 are not certain and definite in themselves; a^iideflnite. 
 for, in such a case, they might decree pre- 
 cisely what the parties did not intend ; and 
 besides this, if any terms are to be supplied, 
 it must be by parol evidence; and the ad- 
 mission of such evidence would let in all 
 the mischiefs intended to be guarded against 
 by the Statute of Frauds. (St. § 767; Taylor 
 v. Partington, 7 D. M. & G. 328.) 
 
 XII. Courts of Equity will enforce an xii. En- 
 
 forcing 
 obligation imposed by will, without any con- voluntary 
 
 sideration. (2 Spence's Bq. Jur. 255.) But 
 
 they will not enforce, either against the party 
 
 himself, or any volunteers claiming under 
 
 him, any contract or any imperfect gifts inter 
 
 vivos (not being donations mortis causa), or 
 
 imperfect assignments of debts or other prop; 
 
 erty, or executory trusts raised by a covenant 
 
 or agreement, or defective or imperfect settle- 
 
232 SPECIFIC PBKFOBMANCB. 
 
 Cap^toi ^®'its or conveyances, which are not founded 
 in a valuable consideration, even though the 
 transaction be founded on a meritorious con- 
 sideration, as in the case of a provision for a 
 wife or child ; that is, Equity will not enforce 
 them so far as something is sought beyond 
 what, if anything, may be recovered under 
 them at Law, although it will, if necessary 
 give effect to any legal obligation created by 
 them. But if a transfer, assignment, trust, 
 settlement, or conveyance is complete, so 
 that no act remains to be done to give full 
 eflfect to the title, Equity will enforce it 
 throughout against the party making or 
 creating it, and his representatives, although 
 it be merely volunta,ry. (Story's Eq. Jur. § 
 433, 787, 793, a, b, 973 ; 1 Spence's Eq. Jur. 
 507; 2 Spence's Eq. Jur. 52, 57, n. (e), 
 129, 254, 255, 285, 889—893, 898, 899, 
 907, 909—915; Fletcher v. Fletcher, 4 Hare, 
 67 ; Voyle v. Hughes, 2 S. & G. 18 ; Bridge 
 V. Bridge, 16 Beav. 315 ; Weal v. OlUve, 17 
 Beav. 252; Scales v. Maude, 6 D. M. & G. 
 43.; Bening v. Ware, 22 Beav. 184; Tat- 
 ham V. Vernon, 29 Beav. 604; Beech v. 
 Keep, 18 Beav. 285; Donaldson v. Donald- 
 son, 1 Kay, 711 ; Pearson v. Amicable As- 
 surance Office, 27 Beav. 229; Woodford v. 
 
SPECIFIC PERFORMANCE. 233 • 
 
 Charnley, 28 Beav. 96; Bilrow v. Bone, 3 ^J^'^vYii 
 Gif. 538; Airey v. Hall, 3 Sm. & G-. 315; — ' 
 Farnell v. Eingston, 3 Sm. & G. 337.) And 
 simply to sign a declaration of trust in favor 
 of the donee, is an effectual mode of effecting 
 a voluntaiy transfer. And if a person directs 
 by letter, though not for valuable considera- 
 tion, an executor to pay over to another the 
 share to which such person is entitled, and 
 the letter is acted upon by the executor, it 
 will operate as an assignment. {Kekewich v. 
 Manning, 1 D. M. & G. 176 ; Grant v. Grant, 
 34 Beav. 34; Gilbert v. Overton, 2 Hem. & 
 Mil. 110; Jones -v. Lock, Law Eep. 1 Ch. Ap. 
 25 ; Richardson v. Richardson, L. E. 3 Eq. 
 Cas. 686; Lambe-v. Orton, 1 Drew. & Sm. 
 129.) 
 
 A third person, particularly if a relation, 
 may enforce in Equity a stipulation made by 
 another in his favor, and for which the 
 party who obtained it has given a valuable 
 consideration plainly with a view of bene- 
 fiting such third person, though such third 
 person, as regards each of the contracting 
 parties, may be a volunteer (2 Spence's Eq. 
 Jur. 286) : as where a person who has 
 contributed a valuable consideration to a 
 settlement, has exacted, as part of the con- 
 
 20* 
 
234 SPECIFIC PERFORMANCE. 
 
 cJp%ni t*"^^*) that certain property shall be so settled 
 
 as that the property, whether belonging to 
 
 one of the parties or the other, shall go to 
 some near relative, in the event of the in- 
 tended limitation to the issue of the marriage 
 failing to take effect. (2 Spence's Eq. Jur. 
 281.) But it would appear, that, if the party 
 exacting the stipulation releases the other, 
 the stranger cannot enforce it unless his 
 condition in life has been altered by the stip- 
 ulation. (See 2 Sp. Eq. Jur. 280, 281.) 
 
 A grant or obligation which is voluntary, 
 as regards the grantee or obligee, ceases to 
 be voluntary, where, with the privity of the 
 grantor or obligor, it forms the considera- 
 tion on the faith of which a marriage is con- 
 tracted and a settlement executed. {Payne 
 V. Mortimer, 1 Gif 118.) 
 xm. No XIII. Equity will not interfere, (1.) 
 perform- Where, in ordinary cases, the contract has 
 
 ance, 
 
 where it bccome incapable of being substantially per- 
 "rong or formed ou the part of the person seeking 
 inequitable. j.eiief_ (St. § 736.) (2.) If the plaiptiff has 
 been guilty of any negligence affecting the 
 essence of the contract (St. § 771 ; 2 Lead. 
 Cas. Eq. 2d ed. 442 et seq.); or if specific 
 performance is sought by a purchaser, after 
 he has permitted a long time to elapse, with- 
 
SPECIFIC PERFORMANCE. 235 
 
 out evincing a fixed intention to carry his cl"'vih 
 
 contract into execution, although he may 
 
 have paid part of the purchase-money, or 
 after he has made frivolous objections to the 
 title, and trifled or shown a backwardness to 
 . perform his part of the agreement, especially 
 if circumstances are altered. (Sugd. C. V. 
 181.) (3.) If there is a substantial defect 
 in the title of the whole or the principal 
 part of the property, not remediable before 
 the decree. (4.) If there is a substantial 
 misrepresentation or misdescription of the 
 estate or property, in a matter unknown to 
 the purchaser, and in regard to which he was 
 not put upon inquiry; or if it appears upon 
 the evidence that there was, in the descrip- 
 tion of the property, a matter in which a 
 person might bond fide make a mistake, and 
 he swears positively that he did make a 
 mistake, and his evidence is not disproved, 
 the Court will not enforce the specific per- 
 formance against him. {Leyland v. llling- 
 worth, D. ¥. & J. 248 ; Biggins v. Samels, 2 
 Johns. & H. 460 ; Swaisland v. Dearsley, 29 
 Beav. 430 ; Cox v. Coventry, 31 Beav. 378 ; 
 Dimmock v. Sallett, L. E. 2 Ch. Ap. 21 ; St. 
 § 778.) (5.) If the title is doubtful : and a 
 doubtful title is one on which the Court 
 
236 SPECIFIC PBRFORMAKCE. 
 
 CAP%nL ®it^®^ itself entertains doubt, or considers 
 that other competent persons may reason- 
 ably entertain doubt, although the Court 
 itself may have a favorable opinion of the 
 title ; for the Court has no means of settling 
 the question as against adverse claimants, or 
 of i ndemnifying the purchaser,if its own opin- 
 ion should turn out not to be well founded. 
 {Pyrke v. Waddingham, 10 Hare, 7, 10 ; Sykes 
 V. Sheard, 2 D. J. & S. 6 ; Collier v. McBean, 
 L. E. 1 Ch. Ap. 81. But see Hamilton v. 
 Buclmaster, L. E. 3 Eq. Cas. 323.) (6.) If 
 the character and condition of the property 
 has been so altered, that the terms of the 
 contract are no longer applicable to the ex- 
 isting state of things. (St. § 750.) (7.) If 
 the defendant can show that, by fraud or 
 mistake, the thing bought is different from 
 what he intended : or if there was a great 
 mistake as to the price. ( Webster v. Cecil, 30 
 Beav. 62.) (8.) If the estate bought is of a dif- 
 ferent tenure (2 Lead. Cas. Eq. 2d ed. 453 et 
 seq.) ; as if it was described as freehold, when 
 in fa,ct it is copyhold, or vice versa (^Ayles v. 
 Cox, 16 Beav. 23); or if it was described to be 
 freehold, when in fact it is leasehold. (Sugd. 
 C. V. 212.) (9.) If material terms have been 
 omitted in the written agreement, or there 
 
SPECIFIC PERFORMANCE. 237 
 
 has been a variation of it by parol. (St. § cap^'viu 
 
 770.) (10.) If the contract is founded in 
 
 imposition, misrepresentation, undue influ- 
 ence, or fraud of any kind; aff where prop- 
 erty was put up for sale by auction to the 
 highest bidder, without mentioning any re- 
 serve, and the auctioneer and an agent for 
 the vendor both bid against each other. 
 (^Mortimer v. Bell, L. E. 1 Ch. Ap. 10.) (11.) 
 If, after the day fixed for performance is 
 past, specific performance is sought by the 
 purchaser, and the price is inadequate, or 
 by the vendor, and the price is unreasonable. 
 (Sugd. C. V. 189.) (12.) In the case of one 
 entire agreement, the Court cannot decree 
 specific performance of part of it, so as to 
 give the plaintiff the benefit for which he 
 stipulated, while the other terms of the 
 agreement are of such a nature that the 
 Court is unable to decree specific perform- 
 ance of them. (^Stacker v. Wedderburn, 3 K. & 
 J. 393, 407.) (13.) The Court will not force 
 any one to take a title, which it is evident 
 will involve the taker in immediate litiga- 
 tion. {Pegler v. White, 33 Beav. 403.) (14.) 
 The Court will not enforce specific perform- 
 ance, if, on any other account, it would be 
 morally wrong or inequitable to do so. (St. § 
 
238 SPECIFIC PERFORMANCE. 
 
 cl"vni ''^0' ''^^ ^' "^^ ^' '^^^' ''^'^> 2 Lead. Gas. Eq. 
 
 2d ed. 453 et seq.; Directors of the Shrewsbury 
 
 and Bimingham It. G. v. Directors of North 
 Western B. C, 6 H. L. 113 ; Falcke v. Gray, 
 4 Drew. 651; Ormes v. Beadel, 2 Gif. 166; 
 Tilderley v. Clarkson, 30 Beav. 419 ; Deane 
 V. Light, D. M. & G. 771; Beeves v. (rreew- 
 
 M)JcA Tanning Co., 2 Hem. & Mill. 54 ; W 
 
 V. B , and B v. W , 32 Beav. 
 
 574; Yivers v. Taite, 1 Moo. P. C. (E. S.), 
 516 ; Cochrane v. ■Willis, 34 Beav. 354, Law 
 Eep. 1 Ch. Ap. 58.) 
 
 XIV. Nor XIV. In like manner, Equity will not 
 
 will equity- 
 enforce as- enforce assisrnments, contracts, or covenants, 
 
 signments, a ' * 
 
 contracts, or -sphich are against public policy. And hence, 
 
 covenants, a c x: J J 
 
 ufpX?t^ 1. An officer in the army or navy, or 
 casTof^* other officer of the government, cannot 
 1. Assign- assign his future accruing pay, or other 
 
 nients by 
 
 officers of remuneration connected with the right of 
 
 the govern- *-* 
 
 ment. the government to future services from him; 
 
 because it is contrary to the honor, dignity, 
 and interest of the State, that its servants 
 should be in danger of being reduced to pov- 
 erty by anticipating those resources which 
 were intended to place them in a suitable 
 condition of respectability, comfort, and 
 efficiency. (See St. § 769, 1040 f— 1040 f, 
 and notes; 2 Sp. .867.) But a man may 
 
SPECIFIC PERFORMANCE. 239 
 
 assign a pension given him entirely for past c^^-vm 
 
 services; and pi-ize-money maybe assigned. 
 
 (2 Sp. 867.) And an assignment of a pension 
 granted by tlie late East India Company is 
 valid. (Eeald v. Hay, 3 Gif 467.) And 
 it has been held that the pension payable to 
 a former officer of the Bast India Company 
 out of the revenues of India since the trans- 
 fer Act, 21 & 22 Yict. c. 106, may be assigned. 
 {Carew v. Cooper, 4 Gif. 619.) 
 2. On principles of public policy, Equity 2. Ana those 
 
 involving 
 
 will not uphold assignments which involve champerty, 
 
 ■* '^ mainte- 
 
 champerty, or maintenance, or buying of S„''?„'''of 
 pretended titles. (St. § 1049; see Rey- g'tieT'^** 
 nell V. Sprye, 1 D. M. & G. 660.) Cham- 
 perty (campi partitio) is properly a bar- 
 gain between a plaintiff or defendant in 
 a cause, and another person who has no in- 
 terest in the subject in dispute (campum par- 
 tire), to divide the land or other property 
 sued for between them, if they prevail at Law, 
 in consideration of the other person carrying 
 on the suit at his own expense. Maintenance, 
 of which champerty is a species, is properly 
 an officious intermeddlitig in a suit which in 
 no way belongs to one, by maintaining or 
 assisting either party with money or other- 
 wise, to prosecute or defend it. Each of 
 
240 SPECIFIC PERFOKMAKCE. 
 
 Ci^'viii. t^®^^ is punishable, both at the Common 
 
 Law and by Statute, as tending to keep 
 
 alive strife and contention, and to pervert 
 the remedial process of the law into an engine 
 of oppression. And the Stat. 32 Hen. VIII. 
 c. 9, prohibits the transfer of any right or 
 title to hereditaments, unless the seller, or 
 his ancestor, or those by whom he claims, 
 have been in possession of the same, or of the 
 remainder or reversion thereof, or of the rents 
 and profits thereof, for one year next before 
 the sale. (St. § 1048, and note, and 1048 a; 
 2 Sp. 869; Hilton v. Woods, L. E. Eq. Gas. 
 432.) And Courts of Equity enforce all the 
 principles of Law upon these poin ts. Excep- 
 tions are made, however, to the general rule 
 against champerty and maintenance, in the 
 case of father and son, or of an heir apparent, 
 or of the husband of an heiress, or of a 
 master and servant, or the like. (St. § 1049 ; 
 2 Sp. 870, 871.) 
 
 3. Noras- 3. Upon the same principle of not giving 
 
 signments 
 
 of mare any encouragement to litigation, especially 
 
 llSfK6Q. , 
 
 iifi'"t'° "when undertaken as a speculation. Equity 
 will not enforce the assignment of a mere 
 naked right to litigate, that is, a right which 
 from its very nature, is incapable of confer- 
 ring any benefit except through the medium 
 
SPECIFIC PERFOfiMANCE. 241 
 
 of a suit ; such as a mere naked right to set (.''^''''viii 
 
 aside a conveyance for fraud. (St. § 1040 g, 
 
 and note ; 2 Sp. 868, 869, 872. See Rill v. 
 Boyle, L. E. 4 Eq. Cas. 260.) The right to 
 complain of a fraud is not a marketable 
 commodity; and if it appears that an agree- 
 ment for purchase has been entered into for 
 the purpose of acquiring such a right, the 
 purchaser cannot call upon the Court for a 
 specific performance of the agreement. (JDe 
 Hoghton v. Money, L. E. 2 Ch. Ap. 164.) But 
 a person may take an assignment of the 
 whole interest of another in a contract, or 
 security, or property which is in litigation, 
 provided he does not make any advance 
 beyond the mere support oftho interest which 
 he has so acquired. Thus, notwithstanding 
 the Statute 32 Hen. VIII. c. 9, above referred 
 to, an equitable interest under a disputed 
 contract for the purchase of real estate may 
 be the subject of a sale. If such an interest 
 is sold by the purchaser under such original 
 contract, he becomes in Equity a trustee for 
 his sub-purchaser, and must permit the sub- 
 purchaser to use his name in legal proceed- 
 ings for obtaining the benefit of the contract. 
 And without entering into any covenants for 
 the purpose, such sub-purchaser is obliged to 
 
 21 
 
242 SPECIFIC PEKFOBMANCE. 
 
 Tit. II. indemnify the original purchaser from all 
 the acts which he must do for the sub-pur- 
 chaser's benefit. And so, a legatee may 
 assign his legacy, and a creditor may as- 
 sign his interest in a debt, although he may 
 have commenced a suit to recover it. (St. 
 § 1050—1054; 2 Sp. 863, 868—871; Myers 
 V. United Guarantee Company, 7 D. M. & Gr. 
 112; Tyson v. Jackson, 30 Beav. 384.) In 
 these cases there is an actual interest in the 
 assignor, independently of litigation; and, 
 although it may require continued litigation 
 to enforce it, yet the parties may possibly 
 adjust the matter without further proceed- 
 ings; whereas, in the case first mentioned, 
 there is no interest in the assignor, or none 
 but what may result from oversetting an 
 interest in the other party. 
 4. comiuon 4. It is a rule of the Common Law that 
 
 law rule .1 .1. . , . . , , . 
 
 against no possibility, right, title, or thing in action, 
 
 assignment 
 
 of pussibiii- can be granted to third persons, except in 
 
 UOS} or 
 
 actSm " ^^^ ^'''^^^ ^^ *^® sovereign, to whom and by 
 whom an assignment could always be made ; 
 for it was thought that a different rule would 
 be the means of multiplying contests and 
 suits. And at Law, this still continues to 
 be the general rule, except in the case of 
 nego.tiablc instruments and some few other 
 
SPECIFIC PERFORMANCE. 243 
 
 securities, or where a debtor assents to the CAP%nr 
 
 transfer of a debt, so as to enable the as- 
 
 signee to maintain a direct action against 
 him on the implied promise which i-esults 
 from such assent; and except in the case of 
 possibilities coupled with an interest, and 
 contingent interests in real estate, which 
 may now be granted and assigned at Law, 
 in consequence of the Stat. 8 & 9 Vict. c. 
 106. (St. § 1039; 2 Sp. 850, 851, 855.) 
 And in the case of assignments of bond or 
 other debts which are an exception to the 
 above-mentioned rule, it is necessary to sue 
 in the name of the original creditor; the 
 person to whom it is transferred being re^ 
 garded rather as an attorney than as an 
 assignee. (St. § 1056.) 
 
 Even before the late Statute of Wills, a is not 
 
 adopted in 
 
 devise of a possibility coupled with an inte- equity, 
 rest, or of a contingent interest, whether in 
 real or personal estate, was good at Law. 
 (2 Sp. 854.) And a covenant to settle, 
 charge, dispose of, or affect property to be 
 hereafter acquired, will operate in Equity 
 upon the property so afterwards acquired. 
 (2 Sp. 254.) And Courts of Equity give 
 effect to assignments, for valuable conside- 
 ration, of trusts and possibilities of trusts, 
 
244 SPECIFIC PERFORMANCE. 
 
 CA"'viii ^^'^ contingent interests, whether in real or 
 personal estate, contingent gains, such as 
 freight to be earned or a cargo to be pro- 
 cured, and even mere expectancies of heirs 
 to their ancestor's estate, and chases in ac- 
 tion. For, such assignments of a chose in 
 action are considered in Equity as amount- 
 ing to an agreement to permit the assignee 
 to make use of the name of the assignor 
 at 'Law, in order to recover the debt, or to 
 reduce the property into possession; or as 
 a contract entitling the assignee to sue in 
 Equity in his own name, and enforce pay- 
 ment of the debt directly against the debtor, 
 whether he has assented or not, making 
 him, as well as the assignor, if necessary 
 a party to the bill. (See St. § 1040, 1040 c, 
 1044, 1055, 1057; 2 Sp. 852, 865, 866, 896.) 
 And such assignments of contingent inte- 
 rests, possibilities, and expectancies, are re- 
 garded in Equity as amounting to a con- 
 tract to assign, when the interest becomes 
 vested; and when the interest does so be- 
 come vested, the claim of the assignee is 
 enforced, not indeed as a trust, but as a 
 right under a contract. (St. § 1040 b.) 
 ammut "^^ ^ general rule, anything written, said, 
 
 mentf'^"" *'*" <^o"6> 1° pursuance of an agreement, and 
 
SPECIFIC PBEFORMANCE. 245 
 
 for valuable consideration, or in considera- ^tit.ii. 
 
 ' Cap. VIII. 
 
 tion of an antecedent debt, to place a chose 
 
 in action or fund out of the control of 
 the owner, and appropriate it in favor of 
 another person, amounts to an equitable 
 assignment. (2 Sp. 855, 860, 861, 907; 
 Chowne v. Baylis, 31 Beav. 351.) So that 
 an agreement between a debtor and a 
 creditor, that the debt shall be paijj. out of 
 a specific fund coming to the debtor, will 
 operate as an equitable assignment. And 
 an order given by a debtor to his creditor 
 upon a person owing money to such debtor, 
 or holding funds belonging to him, directing 
 such person to pay the creditor out of such 
 money or funds, will- amount to an irrevo- 
 cable equitable assignment of such money 
 or funds, or a suflcient part thereof, if 
 made in consequence of a direct agreement. 
 (Bow V. Dawson, 1 Ves, 331 ; ^x parte 
 South, 2 Swanst. 392; Lett. v. Morris^ 4 
 Simons, 607 ; £urn v. Calvallo, 4 My. & Or. 
 690; L' Estrange v. L' Estrange, 13 Beav. 
 281; Ex parte Steward, 2 M. D. & Gr. 
 265; Bodick v. Gandell, 1 D. M. & G. 777; 
 Diplock, V. Hammond, 2 Sm. & Gif 141 ; 2 
 W. E. 501 ; Wat$on v. Duke of Wellington, 
 1 Euss. & My. 602; Malcolm v. Scott, 2 
 21* 
 
246 SPECIFIC PERFORMANCE. 
 
 cSViii. ^*^®' ^^> 2 Spence'Eq. Jur. 855, 860, 861, 
 — '907; Coote, Mortg. 3d ed. 234.) And if 
 the person so ordered to pay, hands over 
 such money or fund to the assignor, he will 
 be made to pay it over again to the assignee. 
 {Jones V. Farrell, 1 D. & J. 208.) But where 
 a railway company was indebted to their 
 engineer, who was greatly indebted to his 
 banker^ and the engineer authorized the 
 solicitors of the company by letter to receive 
 the money due to him from the company, 
 and requested them to pay it to the banker, 
 and the solicitors by letter promised the 
 banker to pay him such money on receiving 
 it; it was held that this did not amount 
 to an equitable assignment of the debt. 
 (Rodick V. Gandell, 1 D. M. & G. 763.) 
 And where a consignment of property is 
 made by the owner, not in consequence of 
 any obligation or contract express or implied, 
 but of his own motion, with orders to pay 
 pyer the proceeds to a third person, this is 
 not an irrevocable appropriation at Law or 
 in Equity, though the third person be a 
 creditor: nor is a merely voluntary arrange- 
 ment made by the debtor himself for pay- 
 ment of a creditor out of a particular fund, 
 though communicated to the creditor, abso- 
 
SPECIFIC PERFORMANCE. 247 
 
 lutely binding so that it cannot be revoked, cS'^'vm 
 that is, in the absence of special circum- 
 stances (as forbearance and the like on the 
 part of the creditor), so as to raise a case 
 of contract or of fraud. (2 Sp. 862.) 
 
 When an assignment is made, everything What must 
 
 ° 'JO be done to 
 
 must be done towards the obtaining of quasi obtain quasi 
 
 " ■*■ possession 
 
 possession that the subject admits of, in order ^f®n^°„t 
 to prevent payment to the assignor himself, 
 and in order to acquire by assignment a 
 complete title to a chose in action, as against 
 assignees in bankruptcy or insolvency, or 
 as against subsequent purchasers or incum- 
 brancers, who might otherwise be deceived 
 by apparent possession and ownership re- 
 maining in a person who in fact is not the 
 owner, or, in the case of voluntary assign- 
 ments, even as against the assignor himself. 
 Hence notice of the assignment of a debt 
 should be given to the debtor ; and if a bond 
 is assigned, it ought to be delivered over to 
 the assignee. (St. § 1047; 2 Sp. 855—857; 
 Byall V. Bowles, 2 Lead. Cas. Bq. 2d ed. 
 615 et seq. ; and remarks of Turner, L. J., 
 in Hx parte Boulton, 1 D. & J. 178—179; 
 Rolroyd v. Marshall, 2 Gif. 382 ; 2 D. F. & 
 J. 596; 10 H. L. Cas. 192; Stansfield v. 
 Gubitt, 2 D. & J. 222.) Ifotioe of the assign- 
 
248 SPECIFIC PERFORMANCE. 
 
 capVui ^^"^^ of ^ policy of insurance must be given 
 — to the insurance ofiBce. (Coote, Mortg. 3d 
 ed. 231; Thompson v. Tomkins, 2 Dr. & 
 Sm. 8.) In all assignments of equitable in- 
 terests other than equitable estates, he who 
 gives formal notice to the holder of the fund 
 has priority over him who does not. In 
 general, notice to one of several obligors or 
 trustees is sufficient. (Coote, Mortg. 3d ed. 
 231 ; Browne v. Savage, 4 Drew. 685 ; Willes 
 V. Greenhill (No. 1, 2), 29 Beav. 376, 387, 
 affirmed on appeal ; Bridge v. Beadon, L. E. 
 3 Eq. Cas. 664; Lloyd v. Banks, L. E. 4 Bq. 
 Cas. 222 ; In re Brown's Trusts, L. E. 5 Bq. 
 Cas. 88.) Where stock standing in the 
 name of a trustee is assigned, and notice 
 cannot be given to the trustee, he who first 
 obtains a distringas on the stock will have 
 a priority. Where a sum standing in the 
 name of trustees is given by a testator as a 
 specific legacy, the executors not having 
 assented to the legacy, the incumbrancer 
 under the specific legatee who first gives 
 notice to the executors is entitled to prior- 
 ity. (2 Sp. 857, 858 ; Browne v. Savage, 4 
 Drew. 635.) In the case of an assignment 
 of a reversionary interest in a fund in Court, 
 the assignee should obtain a stop order 
 
SPECIFIC PERFORMANCE. 249 
 
 {Bartlett v. Bartlett, 1 D. & J. 127), unless J^Viii 
 the fund constitutes part of a testator's 
 estate, in which case notice to the executor 
 will be sufficient without a stop order. 
 ( Thompson v. Tomkins, 2 Dr. & Sm. 8.) In 
 the case of an assignment of costs of suit not 
 yet ordered to be paid, notice should be given 
 to the trustees to whom they would be pay- 
 able. (Day V. Day, 1 D. & J. 144.) In the 
 case of an assignment of freight, the assignee 
 should give notice to the charterers of the 
 assignment. (Brown v. Tanner, L. E. 2 Eq. 
 Cas. 806.) In the case of shares in a com- 
 pany, notice must be given to the company. 
 (Hx parte Boulton, 1 D. & J. 163.) And as- 
 signees in bankruptcy who neglect to give 
 notice will lose their priority equally with 
 particular assignees. (Be Barr's Trust, 4 X, 
 & J. 219.) In order to maintain his priority, 
 it is sufficient if a prior assignee of the pro- 
 ceeds to arise from the sale of an officer's 
 commission gives notice to the army agent 
 of the regiment before the money has reached 
 the agent's hands, though a subsequent as- 
 signee gave notice first. (Butler v. Plunkett, 
 1 Johns. & Hem. 441. On the subject of 
 notice, see also Webster v. Webster, 31 Beav. 
 393; Somerset v. Gox, 33 Beav. 634.) 
 
250 SPECIFIC PEKFORMANCE. 
 
 Tit II. When a debt not legally assignable has 
 Pj,y~(g been equitably assigned by the creditor to 
 of rS™ a purchaser for valuable consideration, and 
 the debtor has had notice of the assignment, 
 all payments which he may thereafter make 
 to the purchaser on account of the debt, 
 must be considered to be well made, so far, 
 at least, as the debtor is concerned, not- 
 withstanding that the purchaser may in 
 fact, after notice of his purchase to the 
 debtor, have sold or mortgaged the debt to 
 some other person, provided that the pay- 
 ments were made by the debtor without 
 notice of the later sale or mortgage. Nor, 
 in such a case, is it incumbent on him, 
 before making a payment to the original 
 purchaser, to require production or proof 
 of the original assignment. (^Stocks v. Dob- 
 son, 4 D. M. & G. 11, 17.) 
 Suit against Au equitable assignee of a legal term is 
 
 equitable ^ & & 
 
 assimeeofa not liable to be sued in Equity by the lessor 
 
 legal term. -l j j 
 
 for rent, or for damages in respect of breaches 
 of covenants, even though he may have been 
 in possession. (Coa; v. Bishop, 8 D. M. & G. 
 815.) 
 Assignees As a general rule, an assignee of a chose in 
 
 taking 
 
 subject to action, other than a bill of exchange or a 
 
 equities of ' ° 
 
 assignor. note, takes it subject to the same equities as 
 
SPECIFIC PERFORMANCE. 251 
 
 it was liable to in the hands of the assignor. cJ^vYii 
 (2 Sp. 863—865 ; Mangles v. Dixon, 3 Ho. — 
 L. Ca. 702 ; Smith v. Farker, 16 Beav. 119 ; 
 Bolt V. White, 31 Beav. 520.) And an as- 
 signee in insolvency stands on the same 
 footing as a particular assignee. (/» re 
 Atkinson, 2 D. M. & G. 140.) 
 
 5. The Courts of Equity will not en- 5. inter- 
 ference in 
 force the specific performance of an agree- regard to 
 
 ■^ * ° arbitration. 
 
 ment to refer any matter ; deeming it against 
 public policy to exclude any person from 
 the appropriate judicial tribunals. Neither 
 will Equity compel arbitrators to make an 
 award. Nor when they have made an 
 award, will Equity compel them to disclose 
 the grounds of their judgment. (St. § 1457.) 
 Nor will it interfere in the case of an 
 agreement which was agreed to be wholly 
 or partly determined by arbitrators who 
 have not yet arbitrated. (^DarbeyY. Whita- 
 ker, 4 Drew. 134.) 
 
 Courts of Equity will enforce a spoeiflc 
 performance of an award which is unexcep- 
 tionable, and in which the parties have 
 acquiesced. (St. § 1458, 1459 ; ' Blacket v. 
 Bates, 2 Hem. & Mil, 610.) And where 
 both parties have for along time acquiesced 
 in or acted upon an award, oven though 
 
252 SPECIFIC PERFORMANCE. 
 
 c^"'vni ol'j^ctions might have been originally urged 
 against it, an application to set it aside will 
 not be entertained. (St. § 1459.) But 
 where an arbitrator has been guilty of un- 
 fairness or partiality, relief will be given 
 against his award. (Ormes v. Beadel, 2 Gif. 
 166.) 
 
 XV. Parol XV. Courts of Equity will enforce a spe- 
 
 enforced. cific performance of a parol contract within 
 the Statute of Frauds — 
 
 1. When set 1. Where it is fully set forth in the bill, 
 
 forth by •' ' 
 
 piiiintiff, an(j it jg admitted by the answer of the de- 
 
 and ad- "^ 
 
 mitted. fendant, and the defendant does not insist 
 on the Statute as a bar. For, under these 
 circumstances, there can be no fraud. And, 
 although there may indeed be a temptation 
 to the defendant to commit perjury ; yet 
 that is the case with every answer, where 
 the defendant's interest is concerned. And 
 as the defendant does not insist on the 
 Statute, he may be deemed to have waived 
 it; and the rule is Quisque renuntiare potest 
 juri pro se introducto. (St. § 755 — 757, and 
 notes.) But if the defendant insists on the 
 Statute as a bar, although he confesses the 
 agreement. Courts of Equity will not enforce 
 it ; for that would be contrary to the express 
 provisions of the Statute. (St. § 757.) 
 
SPECIFIC PBBEORMANCB. 253 
 
 2. Equity will also enforce such a parol Q^p'^-yifj 
 agreement where it was intended to be re- 2. where 
 duced to writing according to the Statute, ducingino 
 but that has been prevented by the fraud vreventli^ 
 
 ^ "^ by fraud. 
 
 of one of the parties. (St. § 768.) 
 
 3. A parol agreement will also be en- s. where 
 
 '■ ° partly 
 
 forced, whether it is an original agreement, performed. 
 or a variation of or substitute for a prior 
 written agreement, where it is a completed 
 agreement, and it has been partly carried 
 into execution, and it is shown, by satisfac- 
 tory evidence, to be clear, definite, and une- 
 quivocal in all its terms. (St. § 759, 764, 
 770, note ; Lester v. Foxcroft, 1 Lead. Cas. 
 Eq, 2d ed. 625 et seq. ; Lady E. Thynne v. 
 Earl of Glengall, 2 H. L. Ca. 158 ; Nunn 
 V. Fabian, Law. Eep. 1 Ch. Ap. 35.) 
 As to the acts which will be deemed a what is 
 
 deemed 
 
 part performance, they should be such as are part per- 
 
 i r T J formance, 
 
 clearly and exclusively referable to a com- 
 plete agreement, and must have been done 
 with no other view than to perform such 
 agreement (St. § 762; Shillibeer v. Jarvis, 
 8 D. M. & G-. 79); and they must have 
 put the party who has performed them in 
 such a situation, that it would be a fraud, 
 in the other party, after allowing him to do 
 them, not fully to perform the agreement. 
 
 22 
 
254 SPECIFIC PERFORMANCE. 
 
 cI"Vm (®*- § '^^1 ' Surcome v. Pinniger, 3 D. M. & 
 — G. 571.) For, the ground on which Courts 
 of Equity enforce specific performance in 
 such cases, is, that if the party allowing these 
 acts to be done were not obliged to fulfil the 
 agreement, it would be permitting him to 
 commit a fraud, the very evil which the 
 Statute was designed to prevent. (St. § 759.) 
 And hence a depositing, securing, or paying 
 of the purchase-money will not be deemed 
 such apart performance as will take the case 
 out of the Statute; for the money can be 
 recovered back at Law. (St. § 760.) Nor will 
 the delivery of an abstract of title, giving 
 directions for conveyances, going to view the 
 estate,flxingupon an appraiser to value stock, 
 making valuations or admeasurements, regis- 
 tering conveyances, and acts of the like pre- 
 liminary or ancillary and equivocal ch aracter, 
 be considered as a part performance of the 
 agreement, so as to take it out of the Statute. 
 (St. § 762.) But if upon a parol agreement 
 the purchaser is admitted into possession, 
 and such possession is exclusively referable 
 to the contract, this amounts to a part per- 
 formance which will take the case out of the 
 Statute; because he is made a trespasser, 
 and is liable to answer as such, if there is 
 
SPECIFIC PERFORMANCE. 255 
 
 no valid agreement at Law or in Equity, cl^viu 
 (St. § 761, 763; Pain v. Coombs, 1 D. & — " 
 J. 34.) And so if upon a parol agreement to 
 grant a lease, the lessee is let into posses- 
 sion, and allowed to spend money on the 
 faith of the agreement, the agreement will 
 be enforced. (Farrell v. Davenport, 3 Gif. 
 363.) But the execution of an indenture of 
 lease by a trustee has been held not to be 
 a part performance of a parol agreement to 
 lease, where the power to lease was only to 
 arise on a request in writing by a married 
 woman, which had not been made. (^Phillips 
 V. Edwards, 33 B.eav. 440.) 
 
 XVI. With respect to a parol variation or xvi. Parol 
 
 variations 
 
 addition, it is to be observed that evidence of oradditions. 
 it is totally inadmissible at Law ; and that 
 the most unequivocal proofs of it will be 
 required in Equity ; and in general, it will 
 only be allowed to be used by a defendant 
 in resisting a specific performance; not by 
 a plaintiff in compelling such performance. 
 The reason of this distinction is, that the 
 Statute does not say that a written agree- 
 ment shall bind, so as to prevent a defendant 
 from assisting on a parol variation thereof, 
 but only that a pai-ol agreement shall not 
 bind. Exceptions occur, however, to this 
 
256 SPECIFIC PERFORMANCE. 
 
 Tit. II. doctrine of the inability of a plaintiff to 
 make use of a parol variation. (1.) Where 
 there has been such a part performance of 
 the parol portion of the agreement, as would 
 enable the Court to decree a specific per- 
 formance in the case of an original and inde- 
 pendent agreement. (2.) Where an omission 
 has occurred by fraud ; and, in cases not 
 within the Statute of Frauds, where there 
 has been a clear omission by mistake. (3.) 
 Where the defendant sets up a parol varia- 
 tion or addition, and the plaintiff seeks a 
 specific performance of the contract, with 
 such variation or addition. (See St. § TTO, 
 note, and 770 a ; Woolam v. Searn, 2 Lead. 
 Cas. Eq. 2d ed. 404; I/aver v. Fielder, 32 
 Beav. 1.) 
 XVII. Parol XVII. It is the practice of Courts of 
 
 promise * 
 
 enforced. Equity to enforce strict truth in the deal- 
 ings of one man with another ; so that if one 
 man makes a deliberate promise to another, 
 with a view to induce that other to do a par- 
 ticular act, which, relying on such promise, 
 he accordingly does, the promiser shall be 
 compelled to make good his word. (M. E. 
 in Loxley v. Heath, 27 Beav. 532 ; Laver v. 
 Fielder, 32 Beav. 1, 12.) And where a testa- 
 tor induces a person to render his valuable 
 
SPECIFIC PERFORMANCE. 257 
 
 services on the faith of a verbal promise, cl^'viii 
 
 that he would, in consideration of such 
 
 services, leave such person certain property, 
 and he makes a will leaving such property 
 accordingly, and shows it to the donee, he 
 cannot afterwards revoke the gift. {Loffus 
 V. Maw, 3 Gif. 592.) And when a marriage 
 takes place on the faith of a promise to make 
 a settlement, such promise will be enforced. 
 {Alt V. Alt, 4 Gif 84.) And where a person 
 intends to make certain provisions, gifts, or 
 arrangements, for the benefit of others, but 
 omits to do so, on the faith of a promise by 
 another person to carry into effect what was 
 so intended, such a promise will be speci- 
 fically enforced in Equity ; so that where an 
 executor promised a testator that he would 
 pay a legacy, and told the testator he need 
 not put it in his will, the executor was 
 decreed specifically to perform the promise. 
 (St. § 781.) 
 
 XVIII. It has been held that Equity will xviii. 
 
 Agreement 
 
 not enforce the specific performance of an to borrow, 
 agreement to borrow a sum of money on 
 mortgage. (JRogers v. Ghallis, 27 Beav. 175.) 
 
 XIX. There are many cases where the xix. 
 
 Negative 
 
 agreement is merely negative, and the Court agreements, 
 acts merely by injunction; as in the case of 
 
 22* 
 
258 SPECIFIC PERFORMANCE. 
 
 cIr'Yiii. ^ covenant not to dig gravel. These may 
 more properly be termed cases of decrees for 
 
 specific adherence to agreements. (See St. § 
 
 721.) 
 XX. Pay- XX. A person cannot evade performance 
 
 mentof 
 
 penalty. of his Contract by payment of the penalty 
 for the breach of it. (2 Sp. 254; Peachy 
 V. Buke of Somerset, 2 Lead. Cas. Eq. 2d 
 ed. 895 et seq.; Long v. Bowring, 33 Beav. 
 585.) (a) 
 
 (a) As to the general jurisdiction of the Gonrts of 
 Equity in matters of specific performance, see Fry on 
 Specific Performance, and Caddee v. Rutter, 1 Lead. Cas. 
 Eq. 2d ed. 709. 
 
TITLE III. 
 
 m 2lbiti6tit)e €qmti3. 
 
 ( 259 ) 
 
( 260 ) 
 
 CHAPTER I. 
 
 or ACCOUNT IN GENERAIi. 
 
 Tit. III. In matters of account standing on equita- 
 ble claims, Equity has universal and exclu- 
 
 Jurisdiction 
 
 ofequity. give jurisdiction. (St. § 454.) In matters 
 of account growing out of privity of con- 
 tract, and cognizable at Law, Courts of 
 Equity have a general jurisdiction, where 
 there are mutual and complicated accounts, 
 and also where the accounts are on one side, 
 but they are very complicated and intricate, 
 or a remedy which is or was peculiar to a 
 Court of Equity is required. But where 
 the accounts, whether-receipts or payments, 
 or both, are all on one side, or where there 
 is a single matter on the side of the plain- 
 tiff, and mere set off on the other side, and 
 where, in each case, no complication exists, 
 and ho peculiar equitable remedy is sought 
 or required, Courts of Equity will decline 
 taking jurisdiction. (See St. § 454, 459, 
 511, 512; Phillips v. Phillips, 9 Hare, 270; 
 
ACCOUNT IN GENERAL. 261 
 
 Fluker v. Taylor, 3 Drew. 183, 192; Pad- "'(^^■j.™- 
 wick V. Burst, 18 Beav. 575; Smith v. L&- 
 veaux, 2 D. J. & S. 1 ; Shepard v. Brown, 4 
 Gif. 208.) The relation of principal and 
 agent does not of itself entitle the principal 
 to come into Equity for an account, if the 
 matter can be fairly tried at Law. {Barry 
 V. Stevens, 31 Beav. 258 ; Smith v. Leoeaux, 
 1 Hem. & Mil. 123; 2 D. J. & S. 1.) 
 
 Accounts may be divided into open, Division of 
 
 accounts. 
 
 stated, and settled accounts. 
 
 An open account is an account of which Open 
 
 accounts. 
 
 the balance is not struck, or which is not 
 accepted by both parties. 
 
 A stated account is one that is accepted stated 
 
 ^ accounts. 
 
 by both parties. This acceptance need not 
 be expressed, but may be implied from cir- 
 cumstances ; as, if no objection is made to 
 the account within a reasonable time. What 
 is a reasonable time, is to be determined by 
 the habit of business; and the usual course 
 is required to be followed, unless there are 
 special circumstances constituting a ground 
 for variation. Between merchants, acquies- 
 cence is presumed, under ordinary circum- 
 stances, after a lapse of several posts. (St. 
 § 526.) 
 
 It is ordinarily a good bar to a suit for an A stated 
 
 •^ " account la 
 
262 
 
 ACCOUNT IN GENERAL. 
 
 Tit. III. 
 Cap. I. 
 
 ordinarily a 
 bar to a suit 
 for an 
 account. 
 
 When it is 
 not. 
 
 Diflferent 
 modes of 
 relief. 
 
 Meaning of 
 "surcharge" 
 and 
 "falsify." 
 
 Onus pro- 
 bandi. 
 
 Extent of 
 the liberty 
 to surcharge 
 and falsify. 
 
 Opened 
 
 settled 
 
 accounts. 
 
 account, that the parties have already stated 
 the items and struck the balance; for, under 
 such circumstances, there is an adequate 
 remedy in a Court of Law. But if there 
 is any mistake, omission, accident, or fraud, 
 by which the account stated is vitiated, and 
 the balance is incorrectly fixed, a Court of 
 Equity will interfere ; in some cases, by di- 
 recting the whole account to be opened and 
 taken de novo ; in others, by allowing it to 
 stand, with liberty to the plaintiff to sur- 
 charge and falsify, or by simply opening the 
 account to contestation as to one or two 
 items which are specially set forth by the 
 plaintiff in the bill. (St. § 523.) The show- 
 ing an omission for which credit ought to 
 have been taken, is a, surcharge ; the prov- 
 ing an item to be wrongly inserted is a fal- 
 sification. The onus probandi is always on 
 the party having the liberty to surcharge 
 and falsify ; and the liberty extends to the 
 examination, not only of errors of fact, but 
 also of errors in Law. (St. § 525.) 
 
 Generally where an account has been 
 settled, the rule is only to give liberty 
 to surcharge and falsify the account, if 
 errors of fact or of law are shown in the 
 account; but where an account has been 
 
ACCOUNT IN GENERAL. 263 
 
 settled between a trustee and his cestui que tit. iii. 
 
 ^ Cap. I. 
 
 trust, under circumstances of fraud or mis- 
 
 representation or undue influence used on 
 
 the part of the trustee, there is scarcely 
 
 any length of time that will prevent the 
 
 Court from opening the account altogether. 
 
 (St. § 527 ; 2 Sp. 942.) 
 
 Acquiescence in an account, even for a Acqui- 
 escence, 
 considerable time, does not of itself establish 
 
 the fact of the account having been settled. 
 
 (St. § 528 ; see Hunter v. Belcher, 2 D. J. & 
 
 S. 194, 202.) 
 
 Where, however, the demand would have Lapse of 
 
 time. 
 
 been cognizble at Law, Courts of Equity 
 are governed by the Statute of Limitations. 
 But when the demand is purely equitable 
 and the bar of the Statute is inoperative, 
 they are sometimes regulated by the analogy 
 of Law, and sometimes by their own inherent 
 principles, not to entertain stale demands, 
 and not to encourage laches or negligence, 
 from the difficulty of doing entire justice 
 when the transactions have become obscure, 
 and from the consciousness that the repose 
 • of titles and the security of property are 
 m anifestly promoted by fully acting upon the 
 maxim, Yigilantibus, non dormientibus, jura 
 subveniunt. (St. § 529; see supra, p. 19.) 
 
264 ACCOUNT IN GENERAL. 
 
 Cap ^P •"• ^^^ general law as to the appropriation of 
 Appropria- payments is this : the debtor is entitled to 
 p*a:^ents. apply the payments, at the time of making 
 them, in such manner as he thinks fit. In 
 default of appropriation by the debtor, the 
 creditor is entitled to determine the applica- 
 tion of the sums paid. And if neither does 
 so by an express act, the law implies an 
 appropriation of such payments to the items 
 of debt in the order of their date. {Merriman 
 V. Ward, 1 Johns. & Hem. 376. St. § 459 a 
 — 459 g ; Devaynes v. Noble, Tudor's Lead. 
 Cas. Merc. Law, 1.) 
 Agentiiabie An agent is not liable to account except 
 
 to account 
 
 only to his to his principal; and the case of a charity 
 
 pnncipal, x jt / ./ 
 
 forms no exception to the rule. (^Att.-Gen. 
 V. Earl of Chesterfield, 18 Beav. 596.) 
 
( 265 ) 
 
 CHAPTER II. 
 
 OP ADMINISTRATION. 
 
 I. In cases ofany complication or difficulty, tit. hi. 
 
 the Court of Chancery has, practically speak- 
 
 ing, almost an exclusive jurisdiction m the tion. 
 administration of assets and the distribution 
 
 of the I'esidue, founded on the notion of a 
 constructive trust, or on some auxiliary 
 ground, such as the necessity of compelling 
 a discovery, or the consideration that the aid, 
 if any, aiforded at Common Law or in the 
 Ecclesiastical Court, vras not plain, adequate, 
 and complete. (St. § 534—543.) And by 
 the Stat. 20 & 21 Vict. c. 77, s. 23, the ju- 
 risdiction of the Ecclesiastical Court in the 
 distribution of residues is abolished, and is 
 not to be exercised by the Court of Probate. 
 
 II. The application for assistance is some- ii. BiUby 
 
 •.1,1 . 1 ■ . . executor or 
 
 times made by the executor or administra- adminis- 
 trator, 
 tor himself, against the creditors generally, 
 
 when he finds the affairs of his testator or 
 
 23 
 
266 ADMINISTRATION. 
 
 Tit. III. intestate so much involved, that he cannot 
 
 Cap. II. ' 
 
 safely administer the estate except under 
 
 the direction of a Court of Equity. Bilk filed 
 by executors or administrators are Bometimea 
 called bills for conformity; and are not encour- 
 aged, because they m ay be made use of unduly 
 to keep creditors out of their money. And for 
 this reason, on such a bill, the Court will not 
 interpose by way of injunction to prohibit 
 creditors from proceeding at Law, until there 
 has been a decree against the executors or ad- 
 ministrators to account. (St. § 544, 545.) 
 ni. Bill or III. But the aid of the Court is more 
 
 summons by 
 
 creditor. usually sought by creditors, which may be 
 by a bill or by a mere summons. (St. § 
 546 ; St. 15 & 16 Vict. c. 86, s. 45.) And as 
 a decree in Equity is held of equal dignity 
 and importance with a judgment at Law, a 
 decree on a proceeding of this sort, being for 
 the benefit of all the creditors, makes them 
 all creditors by decree, on an equality with 
 creditors by judgment, so as to exclude, from 
 the time of such decree, all preference in 
 favor of the latter. (St. § 547.) As soon 
 as the decree to account is made on such a 
 suit brought on behalf of all the creditors, 
 the executor or administrator is entitled to 
 an injunction out of Chancery to prevent 
 
ADMINISTRATION.. 267 
 
 legal proceedings against him by any of the ^rr. in. 
 creditors, except under the direction of the 
 Court of Equity by ■which the decree was 
 made. (St. § 549.) 
 
 IV. , Assets (that is, property available for iv. Division 
 
 of assebs. 
 
 the payment of debts of a deceased person) 
 
 are divided into legal and equitable. Legal Definition 
 
 S> -^ e of legal 
 
 assets are property which creditors may assets. 
 make available in a Court of Law for the 
 payment of debts, as having devolved upon 
 or been recoverable by the executor or ad- 
 ministrator, as such, for that purpose, simply 
 by virtue of his office, even though the prop- 
 erty may be of an equitable nature, and 
 he has consequently been obliged to resort 
 to a Court of Equity to vest it in himself. 
 Equitable assets are property which credi- Definition 
 tors can only make available in a Court of assets. 
 Equity for payment of debts, simply by vir- 
 tue of an express disposition of the property, 
 which must be carried into effect by a Court 
 of Equity. Hence it has been held that an 
 equity of redemption of an equitable interest 
 in a sum of money charged on land is legal 
 assets. So that it is not the legal or equit- 
 able nature of the property, nor the remedy 
 of the executor, but the remedy of the cred- 
 itor, which determines whether the assets 
 
268 .ADMINISTRATION. 
 
 cap"l are legal or equitable. (See St. § 551, 552; 
 — 2 Sp. 314, 315; 2 Bl. Com. 244; Burt. 
 Comp. § 734; Silk v. Prime,.2 Lead. Gas. 
 Eq. 2d ed. 82 et seq.; Cook v, Gregson, 8 
 Drewry, 547 ; Shee v. French, id. 716 ; Mut- 
 low V. Mutlow, 4 D. & J. 539.) 
 
 Equitable assets include real property 
 which the deceased had by will charged 
 with or devised for payment of his debts, 
 although liable for payment of them by Act 
 of Parliament. (St. § 552 a.) 
 V. Aduiin- V. Courts of Equity follow the same 
 legal assets, rules in regard to legal assets, which are 
 adopted by Courts of Law, and give the 
 same priority to the different classes of 
 creditors which is enjoyed at Law. And 
 Equity recognizes and enforces all ante- 
 cedent liens, claims, and charges in rem, 
 according to their priority, whether those 
 charges are of a legal or an equitable nature, 
 and whether the assets are legal or equitable. 
 Admini»- (St- § 553.) But equitable assets, with the 
 
 tratioD 
 equitab 
 assets. 
 
 equitable exception above mentioned, are distributed 
 
 pari passu among all the creditors, without 
 
 regard to the priority or dignity of the 
 
 debts ; and, after they ai-e satisfied, among 
 
 Abatement all the legatees or distributees. But if the 
 
 of debts, and 
 
 legacies. fund 18 insufficient to pay all the debts, all 
 
ADMINISTRATION. 269 
 
 the creditors must abate in proportion^. And ^it. m. 
 so if the fund, after payment of debts, is in- 
 sufficient to pay all the legacies, they must 
 all abate in proportion, unless some pi-iority 
 is specifically given by the testator to some 
 legacies over others. (St. § 554 — 556 ; 2 
 Sp. 314.) But as between specific and pe-. 
 cuniary legatees, the loss is to fall wholly 
 on the latter. (2 Sp. 343.) And charitable 
 legacies now abate, as well as legacies of 
 another kind. (St. § 1180.) 
 
 Where one of several residuary legatees 
 or next of kin has received his share of the 
 estate of a testator or intestate, the others 
 cannot call upon him to refund, unless they 
 show that the wasting took place before the 
 share was paid over. (Peterson v. Peterson, 
 L. ErSBq. 111.) 
 
 Debts actually barred by the Statute of operation of 
 
 . . . , , , . „ the Statute 
 
 Jjimitations are not included in a trust for of Limita- 
 tions as re- 
 payment of debts. But where a provision g"ds debts, 
 
 is made either by will or by deed, for pay- 
 ment of debts but of real estate, the statu- 
 tory time will cease to run, in the former 
 case, from the death of. the testator, in the 
 latter from the date of the deed; because 
 the creditor, the cestui que trust, is not to be 
 barred by the neglect of the trustee to do 
 23» 
 
270 ADMINISTKATION. 
 
 Cap "i" ^'® dpty- The same principle will apply 
 — where personal estate only is assigned in 
 trust for payment of debts. But where 
 the like trust is expressly created by will, 
 it does not prevent the running of the 
 statute; because the trust for payment of 
 debts, with which every executor is clothed 
 by law, has no such effect. Indeed, such an 
 express trust is inoperative for any purpose. 
 (2 Sp. 357 J Moore v. Petchell, 22 Beav. 
 172.) 
 VI. Order of VI. Asscts are now generally applied in 
 
 administra^ nii.ioii. 
 
 tionofdif- tho payment ofdebts in the following order: 
 
 fcrent prop- 
 erties in first, the general personal estate is applied, 
 
 debts. except under the circumstances presently 
 
 mentioned. Secondly, any estate particu- 
 larly devised simply for the payment of 
 debts. Thirdly, estates descended. Fourth- 
 ly, property devised and bequeathed to par- 
 ticular devisees and legatees, but charged 
 with the payment of debts. (St. § 577; 
 2 Sp. 817, 822—824; Duke of Ancaster v. 
 Mayer, 1 Lead. Cas. Eq. 2d ed. 505 et seq. ; 
 Phillips V. Parry, 22 Beav. 179; Wood v. 
 Ordish, 3 Sm. & G. 125.) Fifthly, general 
 legacies. Sixthly, lancj^s comprised in a 
 residuary devise. Seventhly, specific lega- 
 cies and lands specifically deyjsed. (Coote,. 
 
ADMINISTRATION. 271 
 
 Mortg. 3d edit. 474 ; Rotheram v. Eothe- tit. m. 
 ram, 26 Beav. 465; Dady v. Hartridge, 
 1 Dr. & Sm. 236; Barnwell v. Iremonger, 
 id. 242; Bethell v. Green, 34 Beav. 302; 
 Hensman v. Fryer, L. E. 2 Eq. Cas. 627. 
 But see Eddels v. Johnson, 1 Giff. 22, 
 and Pearman v. Twiss, 2 Giff. 130, where 
 V. C. Stuart held, that lands specifically 
 devised, and lands in a residuary devise, are 
 applicable rateably.) Eighthly, personalty 
 and realty over which the person whose 
 estate is to be administered has exercised 
 a general power of appointment. (Sugd. 
 Pow. 8th ed. 474, 540; 2 Lead, Cas. Bq. 
 2d ed. 102—104; Trower's Dr. & Or. 295; 
 Fleming v. Buchanan, 3 D. M. & G. 976.) 
 
 A legacy or annuity given generally is Personal 
 
 estate pri- 
 
 payable out of personal estate only. And maruyap- 
 even when a legacy or annuity is given out ''^p'- 
 of real and personal estate, or where debts 
 are payable out of real as well as out of per- 
 sonal estate, it is the general rule that the 
 personal estate is first to be applied so far 
 as it will extend. The personal estate con- 
 stitutes the primary and natural /and for 
 payment of debts and legacies, and will first 
 be applied (2 Sp. 334, 818 ; Tench v. Cheese, 
 6 D. M. & G. 453; Bright v. Larcher 
 
272 ADMINISTRATION. 
 
 CAP™' (■^"°- ^)> 4 I^- & J- 608), except in these 
 
 cases : 
 
 1. In the 1. When there are express words {Young 
 
 case of ex- . 
 
 presa words v. YouTig, 26 Beav. 522), or a plain inten- 
 intention to {jon of the testator to exonerate his per- 
 
 the con- ^ 
 
 trary. sonal estate. {Coventry v. Coventry, 2 Dr. & 
 
 Sm. 470.) And to constitute such a plain 
 intention, directions and expressions which 
 do not necessarily imply more than that the 
 real estate shall make good the deficiency, 
 are not enougli : there must appear upon the 
 whole testamentary disposition, taken to- 
 gether, an intention go expressed as to con- 
 vince a judicial mind that it was meant not 
 merely to charge the real estate, but so to 
 charge it as to exempt the personal estate. 
 (2 Spence's Eq. Jur. 336—341, 824; Coote 
 Mortg. 3d ed. 454; 1 Eop. Leg., by White, 
 703, 710; 2 Jarm. Wills, 2d ed. 546—8; 
 Plenty v. West, 16 Beav. 180; Ion v. Ashton, 
 28 Beav. 379.) And (1.) If the real estate 
 is directed to be sold for payment of debts, 
 and the personal estate is expressly be- 
 queathed to legatees, then the personal estate 
 will be exonerated by necessary implication. 
 But neither of these circumstances, apart 
 from the other and from circumstances 
 affording similar implication of intention, is 
 
ADMINISTRATION. 273 
 
 a suflScient indication of an intention to ex- tit. m. 
 
 Cap. II. 
 
 onerate the personal estate. For it is most 
 probable that a direction to sell real estate 
 for the payment of debts, where no dispo- 
 sition is made of the personal estate, was 
 intended to be followed only in the event of 
 the personal estate proving insufficient for 
 the purpose of paying the debts. And, on 
 the other hand, it is most probable that a 
 bequest of personal estate, not by way of 
 specific legacy, where no provision is made 
 for payment of debts out of the real estate, 
 was made subject to the payment of debts 
 out of such personal property. (2 Spenee's 
 Eq. Jur. 340—1, 818, 823; 2 Wms. on 
 Executors, 1452 — 3.) (2.) Where the testator 
 gives his personal estate as a whole, and not 
 as a residue, by way of specific legacy to one 
 who is not executor, and another fund is 
 supplied for payment of debts, legacies, and 
 funeral and testamentary expenses, the per- 
 sonal estate is exonerated. (2 Spenee's Eq. 
 Jur. 341; 2 Jarm. Wills, 2d ed. 562; 
 Gilbertson v. Gilhertson, 34 Beav. 854.) (3.) 
 Where a testator directs the conversion of his 
 real and personal estate, and creates a mixed 
 fund out of the produce, and appropriates 
 that fund for the payment of debts, &c., the 
 
274 " ADMINISTRATION. 
 
 Tit. m. iT^Q estates comprised in that fund are 
 — applicable pro rata. But in such case, if 
 there is no conversion out and out, the 
 surplus (if any) will result as real and per- 
 sonal estate. If a portion only of the per- 
 sonal estate is comprised in the fund, the 
 residue will be chargeable only when that 
 fund fails. (Coote Mortg. 3d ed. 470; 2 
 Spence's Eq. Jur. 818; 2 Jarm. Wills, 2d 
 ed. 529, 531; Simmons v. Rose, 21 Beav. 
 87; 6 D. M. & G. 411; Turner, L. J., in 
 Tench v. Cheese, 6 D. M. & G. 467 ; Bright v. 
 Larcher, 3 D. & J. 148.) (4.) So where a devise 
 is made, subject to a condition of paying off 
 the incumbrances affecting the estate; or 
 where only the residue of the proceeds of real 
 estate, after payment of debts, is devised. (2 
 Spence's Bq. Jur. 334, 342.) But where real 
 estate is devised to a person, upon condition 
 of his paying debts and legacies generally, or 
 charged with them generally, or is given 
 to trustees for those purposes, and the per- 
 sonal estate is disposed of by a general 
 residuary bequest, these circumstances will 
 not prevent the personal fund being applied, 
 in the first instance in the satisfaction of 
 those demands. (1 Rop. Leg., by White, 695.) 
 And if a testator expressly charges his per- 
 
ADMINISTRATION. 275 
 
 Bonal estate with debts of a particular de- ^rr in- 
 scription, namely, with those by simple con- 
 
 tract, and then bequeaths that fund, it will 
 not be discharged from debts, &c., gener- 
 ally. (1 Eop. Leg., by White, 706.) And as 
 a general rule, no extrinsic evidence can be 
 admitted to ascertain the intention to exone- 
 rate ; so that the circumstances of the testa- 
 tor, and the amount of his personal estate, and 
 of the debts, cannot be taken into considera- 
 tion. (2 Sp. 337 ; 1 Eop. Leg., by White, 724.) 
 
 If the personal estate is exonerated from 
 debts and legacies in favor of A., and he 
 died before the testator, by which event the 
 disposition lapsed, the executors or next of 
 tin of the testator who accidentally become 
 entitled to the fund will take it with its 
 primary and natural obligation to discharge 
 the debts and legacies. (1 Eop. Leg., by 
 White, 744.) 
 
 2. When the charge or incumbrance is, in 2. where 
 
 ° the debt or 
 
 its own nature, real ; as in the case of a joint- charge is 
 
 ' ' ■' real. 
 
 ure ; or of pecuniary portions to be raised out 
 of lands by the execution of a power; or of 
 pecuniary portions to be raised in favor of 
 daughters, under a marriage settlement, out 
 of lands vested in trustees for the purpose; 
 or of a devise of lands to a pei-son charged 
 
276 ADMINISTRATION. 
 
 Tit. III. with, or with a direction to pay, particular 
 
 sums of money, or to trustees in trust to raise 
 
 and pay particular sums, as distinguished 
 from a charge or trust for satisfaction of 
 debts or legacies generally. (1 Eop. Leg., by 
 White, 671 ; 2 Jarm. Wills, 2d ed. 543, 567 
 — 9.) And although there may be also a 
 personal covenant to raise the jointure, por- 
 tions, or sums, such covenant will only be 
 regarded as an additional security, not as 
 the primary one. If there is no such per- 
 sonal covenant for the payment of portions, 
 but only a covenant to settle lands, and to 
 raise a term of years out of the lands for 
 securing the portions ; in such a case, even 
 though there be a bond to perform the cove- 
 nant, the portions are not in any event pay- 
 able out of the personal estate. A mortgage 
 debt (except in such cases as are mentioned 
 in the next two paragraphs), whether the 
 lands in mortgage devolve upon the heir- 
 at-law or a general devisee or a particular 
 devisee, is not considered as in its own nature 
 real, but is primarily payable out of the gene- 
 ral personal estate of the testator, where it 
 is not made payable by a devisee. Where the 
 mortgaged estate is devised cum onere, it is 
 payable by the devisee. But the expression 
 
ADMINISTRATION. 277 
 
 " subject to the mortgage," in the devise of ^m iii. 
 
 a mortgaged estate, may sometimes be only 
 
 descriptive of the estate, and not expressive 
 of an intent that the devise is made cum 
 onere. (2 Sp. 819 ; 1 Eop. Leg., by White, 
 731—2 ; 11 Jarm. & Byth, by Sweet, 797, 
 n (rt) ; Coote Mortg. 3d ed. 850, 452 ; 2 Jarm. 
 Wills, 2d ed. 534. On this subject, see Jen- 
 kinson v. Marcourt, Kay, 688 ; Bond v. Eng- 
 land, 2 K. & J. 44; Townsend v. Mostyn, 26 
 Beav. 72 ; liady Langdale v. Briggs, 8 D. M. 
 & G. 391.) 
 
 3. Where the debt was not contracted by 3. wiiere 
 
 the debt was 
 
 the person who died last seised or entitled, potcontrac- 
 
 ^ ' ted by the 
 
 but by some other person from whom he Sf^^s^**" 
 took it by descent or devise, or by some other Inutied! 
 person from whom he purchased it, or from 
 "whom his vendor derived it. Thus, where a 
 mortgage was created by an ancestor, and 
 the mortgaged estate descended upon the 
 heir, there, although the heir entered into a 
 collateral contract or covenant, or gave secu- 
 rity for payment of the mortgage, yet his 
 personal estate would not be liable to be 
 charged, in favor of any person who should 
 derive title by descent under him to the 
 mortgaged premises, subject to the mort- 
 gage. But it is different if the heir or de- 
 
 24 
 
278 ADMINISTRATION. 
 
 Cap "i" '^^^^^ ^^ parchaser did anything which raised 
 a new and independent contract between 
 him and the mortgagee (unless it was sim- 
 ply for the purpose of paying off the debts 
 or legacies of the original mortgagor, as 
 such), or had in any other way made the 
 debt his own. (Story's Eq. Jur. s. 571 — 
 576, 1003; 2 Sp. 334—336, 393, 394, 819, 
 824; CooteMortg. 3d ed. 453, 478, 479, 481 ; 
 1 Eop. Leg., by White, 735, 739, 742; 2 
 Jarm. Wills, 2d ed. 536, 539 ; Swainson v. 
 Swainson, 6 D. M. & G. 648 ; Townsend v. 
 Most'yn, 26 Beav. 72 ; Ion v. Ashton, 28 Beav. 
 379; Bagot v. Bagot, 34 Beav. 134.) 
 4. In certain 4. By the Statute 17 Vict. c. 113, it is 
 
 cases where 
 
 ajperson enacted, that, " when any person shall, after 
 
 dies entitlea . •' ^ ' 
 
 to land in theSlst day of December, 1854, die seised of 
 
 mortgage *' ' ' 
 
 iSr W54' ^^ entitled to any estate or interest in any 
 land or other hereditaments which shall at 
 the time of his death be charged with the 
 payment of any sum or sums of money by 
 way of mortgage, and such person shall not, 
 by his will or deed, or other document, 
 have signified any contrary or other inten- 
 tion, the heir or devisee to whom such land 
 or hereditaments shall descend or be de- 
 vised, shall not be entitled to have the 
 mortgage debt discharged or satisfied out of 
 
ADMINISTRATION. 279 
 
 the personal estate or any other real estate Q^p^lf 
 of sach person, but the land or heredita- 
 ments so charged shall, as between the dif- 
 ferent persons claiming through or under 
 the deceased person, be primarily liable to 
 the payment of all mortgage debts with 
 which the same shall be charged, every part 
 thereof, according to its value, bearing a 
 proportionate part of the mortgage debts 
 charged on the whole thereof. Provided 
 always, that nothing herein contained shall 
 aifect or diminish any right of the mortgagee 
 on such lands or hereditamepts to obtain full 
 payment or satisfaction of his mortgage debt 
 either out of the personal estate of the per- 
 son so dying as aforesaid or otherwise: Pro- 
 vided also that nothing herein contained 
 shall affect the rights of any person claim- 
 ing under or by virtue of any will, deed, or 
 document already made or to be made be- 
 fore the Ist January, 1855." 
 
 An equitable mortgage by deposit and 
 memorandum is within this Act. {Pembroke 
 V. Friend, 1 Johns, and H. 132.) And it 
 extends to copyholds. {Piper v. Piper, 1 
 Johns, and H. 91.) 
 
 Various other points connected with the 
 construction of this Act have been decided, 
 
280 ADMINISTRATION. 
 
 Tit. m. but they do not come properly within the 
 scope of a work like the present. 
 
 By the etat. 30 & 31 Vict. c. 69, it is 
 enacted that "in the construction of the 
 will of any person who may die after the 
 3l8t day of December, 1867, a general direc- 
 tion that the debts or that all the debts of 
 the testator shall be paid out of his personal 
 estate shall not be deemed to be a declara- 
 tion of an intention contrary to or other 
 than the rule established by the said Act, 
 unless such contrary or other intention shall 
 be further declared by words expressly or 
 by necessary implication referring to all 
 or some of the testator's debts or debt 
 charged by way of mortgage on any part 
 of his real estate" (s. 1) ; and " in the con- 
 struction of the said Act and of this Act, 
 the word ' mortgage ' shall be deemed to ex- 
 tend to any lien for unpaid purchase-money 
 upon any lands or hereditaments purchased 
 by a testator " (s. 2). 
 Non-iia- Where assets of a testator, consisting of 
 
 soDaity personalty which could be identified, are 
 
 settled on 
 
 marriage, settled boTid fide upon marriage, they cease 
 to be liable to subsequently accruing claims 
 in respect of breaches of covenants entered 
 into by the testator, but of which the 
 
ADMINISTRATION. 281 
 
 parties to the settlement had no notice Trr. iii. 
 
 '^ Cap. II. 
 
 •when they executed it. (^Bilkes v. Broad- 
 mead, 2 D. P. & J. 566.) 
 
 Property specifically bequeathed is not dis- Wawiity of 
 charged from its liability to the testator's ^"^^^1^^^ 
 creditors by the circumstance that there has 
 come to the hands of the executors personal 
 property of the testator not specifically be- 
 queathed more than suflScient to pay his 
 debts and funeral and testamentary ex- 
 penses, and that the specifically bequeathed 
 property has been made over by the execu- 
 tor to the specific legatee; whatever may 
 be the rights of the specific legatee as regards 
 the executor or residuary legatee. (JDavies 
 V. Nicholson, 2 D. & J. 693.) 
 
 IX. In the order of satisfaction, if the ix. order 
 
 of satisfac- 
 
 personal estate of the deceased is not suffi- tion. 
 cient for all purposes, creditors are preferred 
 to legatees; because it is to be presumed 
 that a testator means to be just, by desiring 
 his debts to be paid, before he is generous; 
 and the personal estate, as we have seen, is 
 the natural fund for the payment of debts. 
 Again, specific legatees are preferred to the 
 heir; because the heir, instead of being ex- 
 pressly an object of the testator's regard, like 
 the specific legatee, only takes by act of law. 
 24* 
 
282 ADMINISTRATION. 
 
 Tit. ra. Specific legatees are also preferred to the d&- 
 — visee of real estate charged with specialties or 
 with the payment of debts, and to residuary 
 devisees of real estate. But general pecuniary 
 legatees are not preferred to residuary devi- 
 sees of real estate. Nor are specific devisees 
 of lands, not charged with specialties or with 
 the payment of debts, preferred to specific 
 legatees; but upon failure of the general 
 personal estate, the specific devisees and 
 specific legatees shall each, according to the 
 proportionate value of the benefits conferred 
 on each, contribute to the payment of debts. 
 Where a particular portion of the personal 
 estate is bequeathed, subject to the payment 
 of debts and legacies, there, as between the 
 legatees, the residuary personal estate is 
 exonerated, if there is a residuary bequest, 
 but not where there is no gift of the residue. 
 (St. § 571 ; 2 Sp. 343.) As between a de- 
 visee of a mortgaged fee simple estate and 
 a specific legatee of personalty, the devisee 
 shall not have his mortgage jjaid by the 
 specific legatee, but shall take the mortgaged 
 estate cum onere. A fortiori, a specific leg- 
 atee of a mortgaged leasehold shall not 
 have the mortgage wholly or partly paid off 
 by specific legatees of other leaseholds. (2 
 
ADMINISTRATION. 283 
 
 Sp. 838.) Subject to the stat. 17 Vict. c. 113 tit^ iii. 
 (supra, 278), the devisee of mortgaged prem- — 
 ises is preferred to the heir-at-law of de- 
 scended estates; because the devisee is evi- 
 dently an object of the testator's bounty ; 
 and a fortiori, the devisee of premises not 
 mortgaged is preferred to the heir-at-law ; 
 and if unincumbered lands and mortgaged 
 lands are both specifically devised, but ex- 
 pi-essly after payment of all the debts, they 
 are to contribute proportionably in discharge 
 of the mortgage. Where the equities of the 
 legatees and devisees are equal, the Court 
 remains neuter, and suffers the Law to pre- 
 vail. (See St. § 571 ; 2 Sp. 882, 832, 839.) 
 
 But, subject to the statute 17 Vict. c. 113, 
 where the personal assets are sufBcient to 
 pay all the debts and legacies and other 
 charges, there the heir-at-law or devisee, who 
 has been compelled to pay any debt or in- 
 cumbrance of his ancestor or testator bind- 
 ing on him, is entitled (unless there is some 
 other equity which rejjcls the claim) to have 
 the debt paid out of the personal assets in 
 preference to the residuary legatees or dis- 
 tributees (St. § 571), because such charges 
 are primarily payable out of personal estate. 
 
 And, subject to the same statute, lands 
 
284 ADMINISTRATION. 
 
 Cap?l devised for or subject to the payment of 
 debts are also liable to discharge a mor1> 
 gage, in favor of the heir or devisee to whom 
 the mortgaged lands may belong, unless the 
 mortgaged lands are really devised cum onere. 
 (St. § 571; 2 Sp. 822, and see p. 276-7.) 
 
 Where money is payable under a volun- 
 tary bond, the assignee for value of an equi- 
 table interest in it is entitled to rank as a 
 specialty creditor against the assets of the 
 obligor, though the obligee would not be so 
 entitled. {Payne v. Mortimer, 4 D. & J. 447.) 
 X. Mar- X. There are many cases in which parties, 
 
 shalling of 
 
 assets. whose right at Law is confined to one fund, 
 
 would fail to obtain the satisfaction of their 
 just claims, if left to the course of Law, but 
 are enabled to obtain full satisfaction thereof 
 by means of a particular adjustment effected 
 by Courts of Equity, termed the marshalling 
 of assets. This may be defined to be such 
 an arrangement of the different funds of the 
 common debtor of two or more creditors as 
 may satisfy every claim, so far as, without 
 injustice, such assets can be applied in satis- 
 faction thereof, notwithstanding the claims 
 of particular individuals to prior satisfaction 
 out of some one or more of those funds. So 
 that if there are two or more different kinds 
 
ADMINISTRATION. 285 
 
 of funda of the common debtor of several T"- ™- 
 
 Cap. II. 
 
 creditors, and at Law one can have recourse — 
 to either of those funds, while another is 
 confined to one of them, the former shall 
 either be compelled to seek satisfaction out 
 of that fund to which the latter cannot re- 
 sort, so far as it will extend, or the latter 
 shall receive compensation out of that fund, 
 in proportion to the amount which the former 
 has unnecessarily taken from that which 
 formed the only source of payment for the 
 latter. (See St. § 558—563 ; 2 Sp. 827, 828 ; 
 Aldrich v. Cooper, 2 Lead. Cas. Eq. 2d ed. 56 
 et seq.; Gibson v. Seagrim, 20 Beav. 614.) 
 
 This plan is adopted as against mortgagees Marshalling 
 
 in favor of 
 
 and other creditors of the superior kind, in creditors of 
 
 an inferior 
 
 favor not only of mortgagees and creditors of fg "^^^g, "^ 
 the superior kind, but also of creditors of an " /oni^t'or of 
 inferior rank, or of legatees (except residuary S a devisee, 
 legatees, where the residue is not exonerated, 
 and legatees whose legacies are given out of 
 a residue), or of portionists, or of the heir- 
 at-law, or of a devisee.; and as against simple 
 contract creditors, in favor of legatees (see 
 St. § 562—566, 570; 2 Sp. 410, 819, 820, 
 827, 829, 833); and as against a person 
 who becomes a surety for a mortgagor on 
 the occasion of a first mortgage, in favor 
 
286 ADMINISTRATION. 
 
 c'ap "i °^ "• s<'°0"'i mortgagee. (^South v. Bloxam, 
 ^ —— 2 Hem. & Mil. 457.) Thus, legatees, with 
 piaci"?^ the above exceptions, are permitted to 
 and%*|.**^ stand in the place of specialty creditors, 
 simpleton- agaiust the real assets descended, or of a 
 itors i mortgagee who has exhausted the personal 
 
 estate, whether the mortgaged lands have 
 descended to the heir-at-law, or have been 
 devised to a devisee who is to take subject 
 to the mortgage. And where a testator be- 
 queaths legacies, and devises real estate in 
 trust for, or subject to, payment of debts, 
 and the personal estate is exhausted by cred- 
 itors, the legatees are entitled to come upon 
 the real estate, {Surtees v. Perkin, 19 Beav. 
 406 ; Faterson v. Scott, 1 D. M. & G. 531.) 
 And in consequence of the stat. 3 & 4 "Will. 
 IV. c. 104, which makes real estate liable to 
 simple contract debts, though subject to a 
 priority in favor of specialty debts, legatees 
 are permitted to stand, in regard to land 
 descended, in the place of simple contract 
 creditors who have exhausted the personal 
 estate, so as to prevent a satisfaction of the 
 legacies. (St. § 566; 2 Sp. 830.) But 
 residuary legatees, where the residue is not 
 exonerated, and legatees whose legacies are 
 given out of a residue, have no such equity : 
 
ADMINISTRATION. 287 
 
 for, a residue of personal estate implies what ^^j™' 
 remains after satisfying the charges upon it. ^,j,t^^„f 
 (2 Sp. 820.) And the equity of legatees will Si 
 not generally prevail against a devisee of the gaged."' 
 real estate not mortgaged, whether he is a 
 specific or a. residuary devisee; for, between 
 persons equally taking by the bounty of the 
 testator, Equity will not interfere, unless 
 the testator has clearly indicated some 
 ground of preference or priority of the one 
 to or over the other. (St. § 565 ; 2 Sp. 820, 
 829, 830—832.) (a) 
 
 Where one party has a charge on freehold Marshalling 
 
 as between 
 
 and copyhold estate, and another party a freehold 
 charge on the freehold only, the latter is en- toid. 
 titled to require that the former should be 
 satisfied out of the copyhold estate, so far 
 as it w^ill extend. ( Tldd v. Lister, 10 Hare, 
 157 ; 3 D. M. & G. 857.) 
 
 The same marshalling of assets takes Marshalling 
 place as between legacies chai'ged on land legacies 
 
 charged oil 
 
 and legacies not so charged. (St. § 566.) land and 
 
 ° 6 V a / others not 
 
 But since the statute 9 Geo. II. c. 36, sociiarged- 
 legacies or bequests to charitable uses, pay- 
 
 (p) But query as to a residuary devisee, see Hensman v. 
 Fryer, L. R. 2 Bq. Caa. 627, in which the V. 0. Kindersley 
 held that a, pecuniary leg.atee has a right of marshalling as 
 against the residuary devisee. 
 
288 
 
 ADMINISTRATION. 
 
 Tit. in. 
 Cap. II. 
 
 Adminis- 
 tration in 
 the case of 
 charitable 
 legacies. , 
 
 able out of real estate or charged on real 
 estate, or to arise from the sale of real estate, 
 are, •with some exceptions, utterly void (St. 
 § 569 ; and see Smith's Compendium of 
 the Law of Eeal and Personal Property, 
 282 et seq., ed. 3) : and Equity has in some 
 modern cases refused to marshal the assets 
 in favor of charitable bequests, when given, 
 either directly or by way of trust, out of a 
 mixed fund of real and personal estate, by 
 directing the debts and the other legacies to 
 be paid oat of the real estate,and reserving the 
 personalty to fulfil the charitable bequests. 
 The charity legacies have been considered as 
 intended to be charged on the personal estate 
 and the proceeds of real estate proportion- 
 ately, like other legacies, as if no legal objec- 
 tion existed to applying the proceeds of the 
 real estate to the charitable bequests ; and as 
 charity legacies cannot legally be charged on 
 the proceeds of real estate, they have been 
 held to fail as to that proportion which would 
 have come to them out of the proceeds of 
 the real estate. (See St. § 569, 1180 ; 2 Sp. 
 233, 235.) In this instance, not only has 
 the principle of favor to charities been dis- 
 carded,but the Courts have, very improperly 
 (as the writer humbly submits), acted upon 
 
ADMINISXKATION. 289 
 
 a diametrically opposite principle. A testator t^^ i^'- 
 
 has the powcrof directing the charity legacies 
 
 to be paid out of the pure personalty, ahd the 
 debts and private legacies out of the mixed 
 personalty.. (See Lord Langdale's judgment 
 in the Phi/anthropic Society v. Kemp, 4 Beav. 
 581; Robinson v. Qeldard, 3 Mac. & Gord. 
 735.) And where a testator expressly directs 
 charity legacies to be paid exclusively out of 
 his pure personalty, and the personalty sa- 
 voring of realty is sufficient for the pay- 
 ment of legacies to individuals, and though 
 the will docs not throw the legacies to indi- 
 viduals upon the personalty savoring of 
 realty, yet it does not purport to make those 
 legacies payable at all out of the pure person- 
 alty, but gives them without reference to any 
 particular fund, and the pure personalty is not 
 sufficient or on!y sufficient for the payment 
 of the charity legacies; the legacies to indi- 
 viduals ought to be paid out of the personalty 
 savoring of realty, so as to leave the pure 
 personalty for the payment of the charity 
 legacies. (^Robinson v. Q-eldard, 3 Mac. & 
 Gord. 735, 747.) But even in the absence 
 of such an express adjustment, the writer 
 conceives that the Courts ought, in favor 
 of charities, to have imputed to testators an 
 
 25 
 
290 ADMINISTRATION. 
 
 Tit. III. intention that the charity legacies should be 
 — paid outof that fund alone out of which they 
 lawfully might be paid. 
 
 Where a testator directs charitable lega- 
 cies to be paid out of pure personalty in 
 precedence of other legacies, but is silent as 
 to the fund for payment of debts, there, 
 though the pure personalty be insufficient 
 to pay all the charity legacies, yet it has 
 been held (improperly, as the writer submits) 
 that the debts and funeral and testamentary 
 expenses and the costs are payable, in the 
 first instance, out of the pure personalty 
 and the mixed personalty rateably, according 
 to their relative values. (^Tempest y. Tem- 
 pest, 7 D. M. & G. 470.) 
 Marshalling Marshalling of assets takes place as be- 
 sfmpiecon- twcen Simple contract creditors and a vendor 
 and a ven- of real estate, in respect of his lien for his 
 
 dor's lien. 
 
 unpaid purchase-money. (St. §564 a.) And 
 as against an heir, taking an estate pur- 
 chased, legatees are entitled to have the as- 
 sets marshalled, so as to give them the benefit 
 of the vendor's lien. (2 Sp. 833.) And it 
 has been held by Sir J. Eomilly, M. E., that 
 this doctrine applies as against a devisee 
 taking the purchased estate. (^Birds v. 
 Askey, 24 Beav. 618j Lord Lilford v. Powys 
 
ADMINISTRATION. 291 
 
 Keck, L. E. 1 Bq. Cas. 347; but see 2 Trr™- 
 Sp. 833; Wythe v. Henniker, 2 My. & K. — 
 635.) But the doctrine contained in this 
 paragraph must be considered to be subject 
 to the operation of the stat. 17 Vict. c. 113, 
 as explained and extended by the stat. 30 & 
 31 Vict. c. 69. {See supra, 278—280.) 
 
 On analogous grounds, if a specific legacy Kedemption 
 has been pledged or incumbered with mort- tionofa 
 
 specific 
 
 gages or other charges by the testator, the legacy. 
 specific legatee is entitled to have his legacy 
 redeemed or exonerated; and if the execu- 
 tor fails to perform that duty, the specific 
 legatee is entitled to compensation out of 
 the general assets. Indeed, the same prin- 
 ciples apply to specific legatees as to devi- 
 sees, in respect to the redemption of the sub- 
 ject-matter out of the general assets. (St. § 
 566 a; 2 Sp. 774.) 
 Again, in order to preserve a widow's Protection 
 
 ... . , , . „ of a widow's 
 
 paraphernalia, which, with the exception of parapher- 
 necessary apparel, is subject to debts. Equity 
 will oblige creditors who are entitled to pro- 
 ceed against real assets or funds, to resort 
 to such assets or funds, or will decree her 
 compensation out of the same. (St. § 568; 
 2 Sp. 821, 829.) 
 
 XI. With regard to the assets of foreigners, xi. Assets 
 
 ° ° collected iu 
 
292 ADMINISTRATION. 
 
 Cap "i" '^ ^® *° ^^ observed, that in general where a, 
 , ~r' domestic executor or administrator collects 
 
 a foreign 
 
 a°uolniistiJ asscts in a foreign country, without any let- 
 oradminis- ters of administration taken out or any 
 actual administration accounted for in such 
 foreign country, and brings them home, 
 they will be treated as personal assets to be 
 administered here under the domestic ad- 
 ministration. (St. § 583.) 
 Assets re- If property is received by a foreign ex- 
 
 foreign ecutor Or administrator abroad, and after- 
 executor or 
 adminis- wards remitted here, an executor or ad- 
 
 trator, and ' 
 
 here""'' ministrator appointed here could not assert 
 a claim to it here, either against the per- 
 son in whose hands it happened to be, or 
 against the foreign executor or adminis- 
 trator. The only mode of reaching it, if 
 necessary for the purpose of due adminis- 
 tration here, would be to require it to be 
 transferred or distributed after all claims 
 against the foreign executor or administra- 
 tor had been ascertained and settled abroad. 
 (St. § 584.) 
 
 In cases of intestacy, the law of the 
 domicile of the deceased determines the 
 fund out of which debts shall be paid ; and 
 in eases of testacj', the intention of the tes- 
 tator. (St. § 587.) 
 
ADMINISTRATION. 293 
 
 The priorities of creditors are regulated ^m in. 
 
 by the domicile of the testator, although 
 
 the personal assets may be situate and ad- 
 ministered in another country. (^Wilson V. 
 Jjady Dunsany, 18 Beav. 293.) 
 
 25* 
 
( 294 ) 
 
 Tit. in. 
 
 Cap. III. 
 
 Sec. I. 
 
 1. What 
 may be 
 
 IL What 
 amounts to 
 a mortgage, 
 and what to 
 u purchase 
 with right 
 of reDur- 
 ch£»e. 
 
 CHAPTBE III. 
 
 OP MORTGAGES, PLEDGES, AND LIENS. 
 
 Section I. 
 Of Legal Mortgages of Meal Property. 
 
 I. Generally every description of prop- 
 erty, and every kind of interest in it, which 
 is capable of absolute sale, maj- be the sub- 
 ject of a legal mortgage or its equivalent in 
 Equity. (2 Sp. 614.) 
 
 II. It may be considered as an almost 
 universal rule, that wherever a conveyance 
 or assignment of an estate is originally in- 
 tended as a security for money, whether 
 this intention appears on the deed itself, or 
 by any- other instrument, or even by parol 
 evidence, and whether directly or indirectly, 
 it will ever after be considered in Equity as 
 a mortgage, and therefore redeemable on 
 the usual terms, though, at the time of the 
 loan or as part of the same transaction, 
 there may be an express agreement between 
 the parties that it shall not be redeemable, 
 
MOKTGAeES OF REALTY. 295 
 
 or that the right of redemption shall bo coiir tit. iii. 
 fined to a particular time or to a particular sec^i. 
 person or description of persons ; for such 
 an agreement will be void. (St. § 1018; 
 2 Sp. 618—623,) But there may be an 
 absolute bond fide sale and conveyance, with 
 a collateral agreement for repurchase and 
 reconveyance on repayment of the pur- 
 chase-money, and such collateral agreement 
 may either be introduced into the agree- 
 ment for sale at the time, or may be made 
 at a subsequent period. (2 Sp. 619, 621 ; 
 Alderson v. White, 2 D. & J. 97.) 
 
 If the money paid by the grantee would 
 be a grossly inadequate price for the abso- 
 lute purchase of the estate ; if he was not 
 let into immediate possession of the estate ; 
 if he accounted for the rents to the grantor, 
 and only retained an amount equivalent to 
 interest; or if the expense of preparing 
 the deed of conveyance was borne by the 
 grantor; each of these circumstances has 
 been considered as evidence, showing, with 
 more or less cogency, that the conveyance 
 was intended merely by way of security. 
 (2 Sp. 620, 622.) 
 
 A conveyance will not be deemed a mort- 
 gage or held to be a security only, though 
 
296 MORTGAGES OF REALTY. 
 
 Cap Si' **' ^^ ^'"' ^^ undervalue, if it is not so gross 
 sec^. ^g ^Q show that necessity or pressure 
 amounting to fraud could alone have in- 
 duced the person to enter into such a con- 
 tract, and though the purchaser afterwards 
 declare that he will take the money given as 
 the consideration at any time, with damages 
 for it, or the like ; for if it is not a mortgage 
 in principio, it shall not be so by parol agree- 
 ment afterwards. (2 Sp. 622, 623.) 
 
 Where land is conveyed on trust, in case 
 t a sura and interest should not be paid by a 
 
 day named, to sell, and after payment of 
 principal, interest, and costs, to pay over the 
 surplus and reconvey the unsold part of the 
 estate ; and the grantee covenants not to sell 
 without giving six months' notice; and the 
 grantor covenants to pay the debt and in- 
 terest ; but there is no proviso for redemp- 
 tion ; this is a mere mortgage, and the 
 grantor is entitled to six months' time to 
 redeem. {Bellv. Garter, 17 Beav. 11.) 
 
 Where the transaction is clearly one of 
 purchase with a right of repurchase, the 
 time limited ought precisely to be observed, 
 and there is no principle on which the 
 Court can relieve, if it is not so observed. 
 (2 Sp. 623.) 
 
MORTGAGES OF REALTY. 297 
 
 In case ^ the transaction is one of repur- J"- Sj- 
 
 chase, and not of redemption, if the pur- seoj. 
 
 chaser dies seised, and then the right of 
 
 repurchase is exercised, the money will go 
 
 to the real representatives, and not to the 
 
 personal representatives, as it would in the 
 
 case of a mortgage. (2 Sp. 624.) 
 
 ' If a transaction is to be considered in the Mutuality. 
 
 light of a mortgage as to one party, it must 
 
 as regards the other. (2 Sp. 623.) 
 
 III. 1. So long as the mortgagor contin- iii. Mortga- 
 gee's estate, 
 ues in possession, the mortgagee's estate is right^ and 
 
 r sin 60.168 • 
 
 not absolute, even at Law. For, by stat. 15 ^ ^^^^ ^ 
 & 16 Yict. c. 76, ss. 219, 220, if an ejectment see's estate. 
 is brought by the mortgagee, provided no 
 suit is pending in any Court of Equity for 
 redemption or foreclosure, the payment of 
 principal, interest, and costs will, except in 
 certain cases, be deemed a satisfaction of the 
 mortgage, and the Court may compel the 
 mortgagee to reconvey the estate.(a) But 
 when the mortgagor has ceased to be in 
 possession, and there has been a default in 
 the payment of the money at the stipulated 
 time, the estate of the mortgagee becomes 
 absolute at Law. Yet this estate is in Equity 
 
 (a) On the subject of powers of mortgagees, see stat. 
 23 & 24 Vict. 0. 145, Part II. 
 
298 MORTGAGES OF KEALTT. 
 
 Tit. III. treated as a mere security for the principal 
 
 Cap. III. •' '■ ^ 
 
 seoi. j^^(] interest and costs properly incurred in 
 relation to the mortgage, and follows the 
 nature of the debt. And, although, where 
 the mortgage is in fee, the legal estate de- 
 scends to the heir of the mortgagee, yet in 
 Equity it is deemed a chattel interest and 
 personal estate, and belongs to the personal 
 representatives as assets. (Coote, Mortg. 
 3d ed. 539 ; 2 Sp. 296.) 
 2. Mortga- 2. As to the mortgagee's rights : he is 
 ossession, ' entitled to enter into possession of the lands, 
 
 leases, rents. 
 
 and to take the rents and profits, unless there 
 is some agreement to the contrary; and if the 
 security is insufficient, he may fell timber, 
 and sell it towards liquidation of his debt, 
 and may open mines; but, with this excep- 
 tion, he may not commit waste. He may 
 grant leases, subject to the equity of re- 
 demption, and avoid any leases that have 
 been made by the mortgagor subsequently 
 to his mortgage. He must, however, ac- 
 count for the rents he receives, or, but for 
 his wilful default, might have received, and 
 pay an occupation-rent for such part as he 
 may keep in his own possession. (St. § 
 1016, 1016 b; 2 Sp. 642, 645, 646, 648; 
 Coote, Mortg. 3d ed. 332, 343, 344; Millet 
 
MORTGAGES OF REALTY. 299 
 
 V. Davey, 31 Beav. 470; Tudor's Bq. Cas. If^Yii 
 975; Seton's Decrees, 3d ed. 382 ; Parkinson ^^■' 
 V. Banbury, L. E. 2 Ap. Ser. (H. L.) 1.) 
 
 Where persons, who, though in fact mort- 
 gagees, enter into possession of the rents and 
 profits in another character (e. g., as pur- 
 chasers), they are not answerable for what, 
 without wilful default, they might have re- 
 ceived. (^Parkinson v. Sanbury, L. E. 2 Ap. 
 Ser. (H. L.) 1.) 
 
 A mortgagee is not allowed to obtain any Limit to 
 
 mortgagee's 
 
 advantage out of the security beyond his aivaatage. 
 principal and interest. 
 
 A mortgagee cannot, in the first instance, Conversion 
 
 of interest 
 
 stipulate, that if the interest be not paid at into 
 
 ^ ^ principal. 
 
 the time, it shall be converted into principal. 
 (2 Sp. 628.) To convert interest into prin- 
 cipal, the interest must first become due, 
 and then there must be an agreement in 
 writing signed, to make it principal, at least 
 so as to affect the estate ; and the interest 
 cannot even then be turned into principal to 
 the prejudice of subsequent incumbrances of 
 which the mortgagee has notice at the time 
 of the agreement. (2 Sp. 656.) 
 
 A stipulation that the mortgagee shall increase of 
 
 interest on 
 
 receive interest at £4 per cent, if regularly default in 
 
 ■^ o J regular 
 
 paid, but £5 per cent, if default be made, is payment. 
 
300 
 
 MORTGAGES OF REALTY. 
 
 Tit. III. 
 
 Cap. III. 
 
 Sec. I. 
 
 Leases to 
 the mort- 
 gagee. 
 
 What the 
 mortgagee 
 may add to 
 his deb^. 
 
 good, if £5 per cent, is reserved by the deed. 
 But if £4 per cent, only is reserved, a stipu- 
 lation that £5 per cent, shall be paid, if the 
 interest be not regularly paid, is in the 
 nature of a penalty, against which the Court 
 -will relieve. (2 Sp. 631.) (a) 
 
 Leases made by the mortgagor to the 
 mortgagee at a rent, are looked upon with 
 great suspicion, as likely to have originated 
 in the mortgagee having taken advantage 
 of the necessities of the mortgagor, to ob- 
 tain a lease upon terms upon which the 
 property would not have been let except 
 for those necessities. (2 Sp. 632.) 
 
 T.he mortgagee in possession has a right 
 to add to his debt any sums he may be 
 compelled to pay for arrears of rent, or for 
 maintaining the title to the estate, or for 
 rebuilding the premises, or for necessary 
 repairs, or the expenses of renewing a re- 
 newable leasehold, with interest from the 
 time the sums were advanced. But he can- 
 not, by contract or otherwise, entitle him- 
 self to make any charge for management. 
 (2 Sp. 649, 650, 653.) 
 
 (a) As to the validity of an agreement for making a 
 larger amount of principal payable in default of punctual 
 payment, see Thompami t. Hudmn, L. R. 2 Eq. Cas. 612 j 
 2 Ch. Ap. 255. 
 
MORTGAGES OP RKALTY. 301 
 
 The mortgagee is not allowed to make any J'''- un- 
 charge as receiver, if he himself has person- seoj. 
 ally received the rents, even though it may forre&eiyer. 
 have been agreed that he should be paid for 
 his trouble in receiving them, and though a 
 receiver might have been employed at the 
 expense of the mortgagor. And before the 
 Stat. 23 & 24 Vict. c. 145, and independently 
 of any express provision, it was only where 
 the owner himself, in the ordinary course of 
 management, would have had to employ one, 
 that the mortgagee was entitled to employ a 
 bailiff or receiver, unless with the sanction 
 of the mortgagor. (2 Sp. 807.) 
 
 A mortgagee of a West India estate may Mortgageof 
 
 ° ° •' West India 
 
 stipulate that theconsignments shall be made estate. 
 to him. And, if out of possession, he may 
 take a certain reward for the management of 
 the estate, provided he do not make that em- 
 ployment a condition. But when he takes 
 possession, he is not at liberty to charge the 
 mortgagor, whom he has ousted, for the 
 trouble he takes on his own account; and he 
 cannot charge or stipulate for commi.ssion on 
 consignments, insurance, and the like, but 
 stands in the position of the mortgagee in 
 possession of an English estate. (2 Sp. 630.) 
 
 As a mortgagee is not allowed any advan- advowson" 
 26 
 
302 
 
 MORTGAGES OF REALTT. 
 
 Tit. hi. 
 
 Cap. IIL 
 
 Sec. I. 
 
 Pre-emp- 
 tion. 
 
 Production 
 of deeds by 
 a mort- 
 gagee. 
 
 Eight of 
 mortgagee 
 to devise tlie 
 property. 
 
 tage beyond securiDg his principal and in- 
 terest, where an advowaon is mortgaged, and 
 the living becomes vacant prior to the fore- 
 closure, the mortgagee is compellable in 
 Equity to present the nominee of the mort- 
 gagor; even although nothing but the ad- 
 vowson is mortgaged, and the deed contains 
 a covenant that on any avoidance the mort- 
 gagee shall present. But he may pray a 
 sale of the advowson. (2 Sp. 629.) 
 
 The mortgagee is at liberty to stipulate 
 for the option of pre-emption, in case tiie 
 mortgagor should determine to sell. (2 Sp. 
 631.) 
 
 A mortgagee is not bound to produce his 
 mortgage-deed, or indeed any of the deeds 
 in his possession, to the mortgagor or any 
 person claiming under him, until payment 
 of the principal and interest due and his 
 costs, though the application be made bond 
 fide, only to obtain information with a view 
 to paying off the mortgage. (2 Sp. 655.) 
 
 As an incident to the right of the mort- 
 gagee, he is at liberty to devise the legal 
 estate in the mortgaged property to trustees, 
 if he thinks fit, instead of allowing it to 
 descend to his heir-at-law ; and the mort- 
 gagor must bear the costs of obtaining a 
 
MORTGAGES OF REALTY. 303 
 
 reconveyance, although they may have been ^'J- "J- 
 
 increased by such devise. (2 Sp. 669.) sec^. 
 
 If a mortgagee in possession turns out or Mortgagee 
 
 , . ejecting or 
 
 refuses to accept a responsible tenant, he is refusing 
 
 '■ ^ ' tenant. 
 
 liable for any loss occasioned thereby. (2 
 Sp. 806.) 
 
 Both at Law and in Equity, in the absence Tacking, 
 of particular circumstances, statutes, judg- 
 ments, and recognizances, iall rank accord- 
 ing to their dates. (2 Sp. 727.) And so, in 
 Equity, do equitable charges of every kind, 
 where the equities are equal in. all other 
 respects than that of priority of time. (2 
 Sp. 727—732 ; Coote on Mortg. 410, ed. 3 ; 
 remarks of V. C. Kindersley, in Bice v. Bice, 
 2 Drewry, 78; Cory v. IJyre, 1 D. J, & S. 
 149.) But if a third incumbrancer by 
 mortgage, without notice of a second incum- 
 brance at the time of lending his money, 
 purchases the first legal mortgage, judgment, 
 statute, or recognizance, even after notice of 
 the second mortgage, so as to acquire the 
 legal title, and holds both securities in his 
 own right, Equity will tack both incum- 
 brances together in his favor ; so that the 
 second mortgagee will not be permitted to 
 redeem the first, without redeeming the 
 third also ; on the principle that where the 
 
304 MORTGAGES OF REALTY. 
 
 cll' III" equities are equal^ the Law shall prevail. 
 seo^i. -g^^ jf ^ puisne creditor by judgment, statute, 
 or recognizance, buys in a prior mortgage, 
 he will not be allowed to tack his judgment 
 to such mortgage, so as to cut out or post- 
 pone a mesne mortgage ; because he did not 
 originally advance his money on the imme- 
 diate credit of the land ; and, by his judg- 
 ment, he did not acquire any right in the 
 land, but before the statute 1 & 2 Vict. c. 
 1 10, only a lien on the land, which might 
 or might- not be enforced on it (see St. § 
 412—416, 418, 421 ; 2 Sp. 734, 735, 737, 
 740 ; Marsh v. Lee, 1 Lead. Cas. Eq. 2d ed. 
 494 et seq.; Spencer v. Pearson, 24 Beav. 
 266; but see 2 Sp. 722, 723); although 
 now, under the 13th section of that Act, a 
 judgment will operate as a charge on a real 
 estate. 
 
 If a first mortgagee, who has the legal 
 estate or the better right to call for it, lends 
 to the mortgagor a further sum on another 
 mortgage, or on a statute or judgment, or 
 even if he lends a further sum on note, and 
 it is distinctly agreed at the time to be on 
 the security of the mortgaged property, he 
 will be entitled to retain till both sums are 
 paid, as against a mesne mortgage, of which 
 
MORTGAGES OF REALTY. 305 
 
 he had no notice at the time of the further Jit. iii. 
 
 Cap. hi. 
 
 advance. (St. § 417, and note ; 2 Sp. 721, ^''±J- 
 735, 739 ; Tassell v. Smith, 2 D. & J. 713.) 
 Indeed it may be more generally stated that 
 if a mortgagee has the legal estate, and 
 makes a further advance, without notice of 
 any claim adverse to his title, he is entitled 
 to tack the further advance to the original 
 mortgage, as against any such adverse claim. 
 (Young v. Young, L. E. 3Eq. Cas. 801.) But 
 ■where a first mortgage extends to future 
 advances^ further advances made by the 
 first mortgagee, after notice of the second 
 mortgage, have no priority over the latter, 
 even though the second mortgagee had 
 notice of the nature of the first mortgage^ 
 (Bolt V. Hopkinson, 25 Beav. 461 j 3 D. & J. 
 177; 9 H. L. 514.) 
 
 A statute or judgment creditor who is the 
 first incumbrancer, cannot, by buying a sub- 
 sequefit mortgage, tack it to his statute or 
 judgment, because he did not advance his 
 money on the immediate credit of the land. 
 (2 Sp. 740.) And a prior mortgagee, having 
 a bond debt (which per se is not a charge on 
 land), whether prior or subsequent to his 
 mortgage, cannot tack it against any inter- 
 vening incumbrancer of a superior rank be- 
 
 26* 
 
306 MOKTGAGBS OF REALTY. 
 
 Trr. III. tween his bond and mortgage, or against 
 seoi. other creditors, or even against the mortgOr 
 gor himself, or a purchaser of the equity of 
 redemption, but (only to avoid circuity of 
 action) against the heir or beneficial devi- 
 see, if in the bond the heirs are expressly 
 bound. (St. § 418; 2 Sp. 723—725, 735; 
 Coote, Mortg. 3d ed. 891—3.) 
 
 And when a puisne mortgagee has bought 
 in a prior incumbrance, but the legal estate 
 is vested in a trustee, or the puisne mort- 
 gagee has not obtained the legal title, or he 
 takes en autre droit, the incumbrances are 
 paid in the order of their priority in point 
 of time, according to the maxim, Qui prior 
 est tempore potior est jure, and the principle 
 that he who has the better right to call for 
 the legal title, or for its protection, shall 
 prevail. (St. § 419 ; 2 Sp. 745.) 
 Postpone- Where a first mortgagee voluntarily, dis- 
 priorraort- tinctly, and unjustifiably, through fraud or 
 gross negligence, allows the mortgagor to 
 retain the title-deeds, or allows the mort- 
 gagor to get possession of them, he will be 
 postponed to a subsequent mortgagee or 
 purchaser without notice of the prior mort- 
 gage. But the onus of proving such fraud 
 or negligence is on the person seeking to 
 
MORTGAGES OP REALTY. 307 
 
 postpone the other. (St. § 393, and see § tit. iii. 
 1010; 2 Sp. 766, 767; Finch v. Shaw, 19 sec.™' 
 Beav. 500 ; ^f. a. Golyer v. Pinch, 5 H. L. 
 905; Carter v. Garter, 3 K. & J. 617, 646— 
 648; Espin v. Pemberton, 4 Drew. 333; 
 Dowles V. Saunders, 2 Hem. & Mil. 242; 
 Layard v. Maud, L. E. 4 Bq. Cas. 397.) So 
 if he conceals his mortgage from a person 
 who, as he knows, is about to lend money to 
 the mortgagor, he will be postponed to that 
 person. (St. § 390; 2 Sp. 732, 766.) A 
 second incumbrancer upon equitable rever- 
 sionary interest in stock, who has given 
 notice of his incumbrance to the trustees 
 of the property, whether he has inquired 
 of them as to the state of the title or not, 
 will be preferred to a prior incumbrancer, 
 who has omitted to give notice of his incum- 
 brance to the trustees. (2 Sp. 764.) And if 
 a prior incumbrancer on real estate devised 
 in trust for sale, omits to give notice to the 
 trustee, before notice is given of a subsequent 
 incumbrance, he will be postponed to the 
 subsequent incumbrancer. (Lee v. Howlet, 
 2 K. & J. 531 ; Consolidated Investment and 
 Insurance Company v. Biley, 1 Gif. 371.) 
 But a mortgagee of an equitable estate in 
 land not directed to be sold has no occasion 
 
308 MORTGAGES OF REALTY. 
 
 Cap ill *° S*^'' notice to the trustees, either tocom- 
 sec^. piete his title as against his mortgagor, or 
 to secure to himself his priority against 
 subseqent incumbrancers. {Booper v. ffar- 
 risson, 2 K. & J. 86.) A declaration of trust 
 of an outstanding term, with a delivery of 
 the deeds creating and continuing the term, 
 has been held to give a subsequent incum- 
 brancer a better equity than a mere decla- 
 ration of trust taken by a prior incumbran- 
 cer. (St. § 421 b, and note ; 3 Sp. 729.) And 
 if the first incumbrancer has a declaration 
 of trust only by the borrower, and none by 
 the trustee, and the second incumbrancer 
 has a formal mortgage of the equity of re- 
 demption, and the trustee is a party to that 
 deed, and declares himself to be a trustee 
 for the second incumbrancer, the second 
 will have a better equity to call for the 
 legal estate than the first. (2 Sp. 729.) 
 3. Mortga- 3. As to the remedies of the mortgagee to 
 
 gee's reme- 
 dies, secure the discharge of the mortgage, a bill 
 
 Foreclosure, for a foreclosure is -in common eases deemed 
 the appropriate and exclusive remedy. (St. 
 § 1026.) 
 
 An intermediate mortgagee is entitled to 
 file a bill of foreclosure against the mort- 
 gagor and the subsequent mortgagees. (2 
 
MORTGAGES OF REALTY. 309 
 
 Sp. 674.) A person entitled to a part only ^'t. m. 
 of the mortgage-money cannot file a bill to secjc. 
 foreclose a portion of the estate. (2 Sp. 
 674.) A bill of foreclosure may be filed not- 
 withstanding a decree for redemption ; for 
 the mortgagor may make default. (2 Sp. 
 675.) "Where a decree of foreclosure is 
 made against an infant heir or devisee of 
 the mortgagor, the infant has a year and a 
 day to show cause against the decree on his 
 coming of age ; but he can only do this by 
 showing error in t-be decree, or falsifying 
 the accounts for fraud or error. (2 Sp. 680, 
 681.) 
 
 A foreclosure suit cannot be brought but 
 within twenty years after the right to bring 
 such suit first accrued, or within twenty 
 years after the last payment of any part of 
 the principal money or interest. (See stat. 
 3 & 4 Will. IV. c. 27, ss. 24, 28, and stat. 7, 
 Will. IV. and 1 Vict. c. 28 ; Fisher, Mortg. 
 153 — 4; Sngd. Stat. 2d ed. 94; Coote, Mortg. 
 3d ed. 449.) 
 
 By the stat. 15 & 16 Vict. c. 86, s. 48, on a Sale, 
 foreclosure suit being instituted, the Court 
 may now decree a sale. Before that Act, 
 where there was no power of sale inserted 
 in the mortgage-deed, Courts of Equity 
 
310 MORTGAGES OF KEALTT. 
 
 Cap lii' I'sfused to decree a sale against the -will of 
 seo^. ^jjg mortgagor, except in these cases : (1.) 
 Where the estate was insufficient to pay the 
 incumbrances. (2.) Where the mortgagor 
 was dead, and there was a deficiency of per- 
 sonal assets. (3.) Where the mortgage was 
 of a dry reversion. (4.) Where the mort- 
 gagor died, and the estate descended to an 
 infant. (5.) Where the mortgage was of an 
 advowson. (6.) Where the mortgagor be- 
 came bankrupt, and the mortgagee prayed a 
 sale. (7.) Where the mortgagor was dead, 
 and the mortgagee, by his bill brought 
 against the executor or administrator and 
 the heir, prayed for a sale of the mortgaged 
 estate, alleging it to be a scanty security, and 
 for the payment of any deficiency out of 
 the general estate of the mortgagor. (8.) 
 Where the mortgage or charge was purely 
 equitable, as by a deposit of title-deeds. 
 (9.) Where the land in mortgage was subject 
 to a sale by the local Law, as in Ireland. 
 (St. § 1026; 2 Sp. 676—678.) The ground 
 of the distinction, as it respects the first 
 seven of these cases, would appear to be 
 this : that, from the nature of the property, 
 it would not be worth while to redeem it, or 
 from the circumstances of the mortgagor, 
 
MORTGAGES OP REALTY. 311 
 
 he or his representatives were unable to ^'^- ™- 
 redeem it. sec^i. 
 
 Though a power of sale be harshly exer- 
 cised, and at a time when, having a regard 
 to the interests of the mortgagee, he would 
 not have been advised to sell, yet the sale 
 cannot be impeached on that account. (2 Sp. 
 634, 646.) But where the power of sale is 
 given to a trustee, it is his duty to attend 
 equally to the interests of both parties. (2 
 Sp. 636.) And a mortgagee ought not to 
 exercise a power of sale for other purposes 
 than the recovery of his money. {Robertson 
 V. JVorris, 1 Gif 421; affirmed on appeal.) 
 And if he sells, after tender of principal and 
 interest (and costs, unless they are unascer- 
 tained, and the security ample), the sale will 
 be set aside as against him and a purchaser 
 with notice of the tender. (Jenkins.v. Jones, 
 2 Gif. 99.) 
 
 A sale may be made without notice to the 
 mortgagor, and without his concurrence, un- 
 less that is made a condition. (2 Sp. 635 ; ^ 
 Newman v. SeJfe, 33 Beav. 522.) 
 
 Where notice to the mortgagor is requir- 
 ed, a clause that a purchaser should not be 
 required to ascertain that notice had been 
 given, and that the mortgagee's receipt 
 
312 MORTGAGES OF REALTY. 
 
 Cap Wi ^'^<'"'<i ^^ ^ sufficient discharge, does not 
 
 sec^i. apply to a case where the purchase is made 
 
 with actual knowledge that such notice has 
 
 not been given. {Parkinson v. Hanbury, 1 
 
 Drew. & Sm. 143.) 
 
 Where the surplus produce, on the execu- 
 tion of a power of sale in a mortgage in fee, 
 is directed to be paid to the mortgagor, his 
 executors, &c., this is not of itself a conver- 
 sion of the equity of redemption into per- 
 sonal estate. If the sale takes place in the 
 lifetime of the mortgagor, the surplus is per- 
 sonal estate; but if he dies before the sale is 
 made, the equity of redemption descends to 
 the heir, and he is entitled to the surplus. 
 (2 Sp. 636.) 
 
 A trustee for sale cannot become the pur- 
 chaser. (2 Sp. 636; Turner, L. J., in Par- 
 kinson V. Hanbury, 2 D. J. & S. 450.) But a 
 second mortgagee may buy under a power 
 of sale from the first mortgagee ; and in 
 such case he will obtain, as against the 
 mortgagor, an irredeemable title to the pro- 
 perty. {Parkinson v. Hanbury, 1 Dr. & Sm. 
 143; Shaw v. Bunny, 33 Beav. 494; 2 D. J. 
 & S. 468; Kirkwood v. Thompson, 2 Hem. & 
 Mil. 392.) 
 
 Where there are several incumbrancers, a 
 
MOETGAaES OF REALTY. 313 
 
 decree for sale of aa incumbered estate does J'^. m. 
 
 Cap. III. 
 
 not alter the relative rights of the parties : sec^l 
 the purchase-money is substituted for the 
 estate. (2 Sp. 678.) 
 
 The Court will not prevent a mortgagee Concurrent 
 
 * ° "^ remedies of 
 
 from using all the remedies belonging to his mortgagee. 
 character of mortgagee, and exercising all 
 the powers that are given to him, as and 
 when he pleases, even concurrently. (2 Sp. 
 634.) A power of sale is only an additional 
 remedy, and therefore does not interfere 
 with the right of the mortgagee to fore- 
 closure. (2 Sp. 636.) If a debt is secured 
 by the mortgage of a real estate, and also 
 by covenant and collaterally by bond, the 
 mortgagee may pursue all his remedies at 
 the same time. If he obtains full payment 
 on the bond or covenant, the mortgagor is, 
 by the fact of payment, entitled to redeem 
 the estate, and foreclosure is prevented or 
 not allowed. But if the mortgagee obtains 
 only part payment on the bond or covenant, 
 he may go on with his foreclosure suit, and, 
 giving credit in account for what he has 
 recovered on the bond or covenant, he may 
 foreclose for non-payment of the remainder. 
 On the otLer hand, if he obtains a fore- 
 closure first, and alleges that the value of 
 
 27 
 
314 MORTGAGES OF KEALTT. 
 
 Cap ill ^^^ estate is not sufficient to satisfy the 
 Sec^. (jebt^ ]je is not absolutely precluded from 
 suing on the bond or covenant ; but it is 
 held that by doing so he gives to the 
 mortgagor a renewed right to redeem, or, 
 in other words, opens the foreclosure : and 
 consequently, upon the commencement of an 
 action against the mortgagor on the bond 
 after foreclosure, he may file a bill for re- 
 demption, and upon payment of the whole 
 debt secured by the mortgage, he is entitled 
 to have the estate back again, and the secu- 
 rities given up. After foreclosure, therefore, 
 the Court will not restrain the mortgagee 
 from suing on the bond, provided he retains 
 the mortgaged estate in his own power, 
 ready to be redeemed, in case the mortgagor 
 should think fit to avail himself of the open- 
 ing of the foreclosure. (2 Sp. 682.) 
 
 But if a mortgagee so deals with the 
 mortgaged estate as to render it impossible 
 for him to, restore it on full payment, the 
 Court will prevent his suing at law to re- 
 cover the mortgage-money ; as where he 
 joins in an alienation of the property, and 
 receives no part of the purchase-money. 
 (Parker v. Hendrie, 27 Beav. 349.) 
 
 IV. Mortga- 
 
 gor'8 estate lY. We have already' seen that as long as 
 
 and rights. •' =" 
 
MOaiGAGBS OF REALTY. 315 
 
 the mortgagor continues in possession, ho "^^ ™- 
 has a right of redemption, even at law, under skc^i. 
 the Stat. 15 & 16 Vict. c. 76, bs. 219, 220, if 
 an action of ejectment is brought against 
 him, and no suit for redemption or fore- 
 closure is pending in a Court of Equity. 
 And until foreclosure, the mortgagor, whe- 
 ther in possession or not, is considered in 
 Equity as substantially the owner of the 
 estate, though his ownership is subject to 
 restrictions for the protection of the mort- 
 eaeee. Hence, if the mortgagor applies to Equity of 
 
 ° ° ' a o 11. redemption. 
 
 be allowed to redeem, before the right of 
 redemption is lost by a lapse of twenty 
 years, during which no acknowledgment 
 has been made by the mortgagee of the 
 mortgagor's title or of his right of redemp- 
 tion, the mortgagee will then be treated 
 precisely as a trustee for the mortgagor, in- 
 asmuch as he will be compelled to reconvey 
 the estate, and account for every kind of 
 profit that he has made in the ordinary way, 
 or which, but for his wilful default, he might 
 have made. (See St. § 1013, 1016, 1028 a; 
 and 3 & 4 Will. IV. c; 27, s. 28; 2 Sp. 644, 
 645, 648, 710, 806.) 
 
 The common equity of redemption, or 
 ordinary right which the mortgagor has, in 
 
316 MOETGAGBS OF REALTY. 
 
 Cap. in, 
 Sec. I. 
 
 Tit. in. Equity, of redeeming the estate, is so in- 
 separable an incident to a mortgage, that it 
 cannot be disannexed from such a transac- 
 tion, or controlled even by an express agree- 
 ment. (St. § 1019; 2 Sp. 618, 619, 628.) 
 And this constitutes an equitable estate in 
 the land, which may be granted, devised, and 
 entailed; and if entailed, might have been 
 barred by a fine or recovery, and may now 
 be barred by a disentailing deed, and is 
 liable to a tenancy by the curtesy, and, 
 since the statute 3 & 4 Will. IV. c. 105, s. 2, 
 to dower. (St. § 1015 ; 2 Sp. 642, 645.) 
 
 A mortgagor may, by a subsequent delib- 
 erate act, extinguish his equity of redemp- 
 tion. Thus, a mortgagee may purchase the 
 equity of redemption of the mortgagor. 
 But the Court views such a transaction 
 with jealousy. (2 Sp. 654.) And if a 
 mortgagor in embarrassed circumstances, 
 conveys his equity of redemption (under 
 pressure for payment of the mortgage debt), 
 for a sum considerably less than its value, 
 the sale will be set aside. (Ford v. Olden, 
 L. E. 3 Eq. Cas. 461.) 
 
 The owner of the equity of redemption of 
 part of the estate in mortgage cannot sepa- 
 rately redeem his part; the mortgagee has a 
 
MORTGAGES OF REALTY. 317 
 
 right to insist that the whole of the mort- J", in. 
 
 "^ Cap. hi. 
 
 gaged estate shall be redeemed together. (2 Sec^i. 
 Sp. 666.) And where a mortgagee lends 
 two distinct sums to the same mortgagor on 
 two securities, although they be only equitr 
 able securities, and although created by two 
 distinct instruments, and at different times, 
 and although the property in one be real and 
 the other personal, the mortgagor, or any one 
 claiming under him (even a purchaser of the 
 equity of redemption or mortgagee of the 
 estate sought to be redeemed, who had no 
 notice of the mortgage on the estate not 
 sought to be redeemed), cannot redeem the 
 property comprised in one security without 
 redeeming the other also ; for the person who 
 has the two mortgages has a right to con- 
 solidate them, so as to insist on both being 
 paid off together. At least this is the case 
 where the security not desired to be re- 
 deemed is defective in title or defieiont in 
 value. And where two mortgages of distinct 
 estates originally vested in different mort- 
 gagees are transferred to one person, even 
 with noticeof a second mortgage, the second 
 mortgagee cannot redeem the one estate 
 without the other. And the transferees of a 
 moi'tgage made by a person who afterwards 
 
 27* 
 
318 MOBTGAGES OF KBAL.TY. 
 
 Cap ill becomes bankrupt, are entitled to tack a debt 
 skoj. insufficiently secured by a previous mortgage 
 of other property made to them directly, 
 though they took the transfer after and with 
 notice of the adjudication. And where the 
 mortgagee has sold one estate under a power 
 of sale, he may apply the balance of the 
 proceeds of that estate, after payment of the 
 mortgage debt upon it,, towards payment of 
 the debt upon the other. ( Vint v. Padget, I 
 Git. 446; 2 D. & J. 611; Selby v. Pomfret, 
 1 Johns. & Hem. 336; 3 D. P. & J. 595; 
 Story's Bq. Jur. 1023, n.; 2 Sp. Eq. Jur. 651, 
 666, 726; Smith's Compendium of the Law 
 of Eeal and Personal Property, 389, ed. 3; 
 Wicks V. Scrivens, 1 Johns. & Hem. 215; 
 J!feve V. Pennell, 2 Hem. & Mil. 170; Beevor 
 V. Luck, L. E. 4 Bq. Gas. 537.) 
 Who m?y Even a tenant for life, a tenant by the 
 curtesy, a jointress, a tenant in dower in 
 some cases, a reversioner, a remainderman, a 
 judgment creditor, a tenant by elegit or by 
 statute merchant, the lord of a manor hold- 
 ing by escheat (as regards a mortgage for a 
 term of years, created by a mortgagor who 
 has died without heirs, though not as regards" 
 a mortgage in fee, under which the whole 
 estate has passed to the mortgagee, so that 
 
 tedeem. 
 
MORTGAGES OF EEALTt. 819 
 
 there can be no escheat), and indeed every tit. ui. 
 other person having a legal or equitable in- seoj. 
 terest in or lien on the land, may insist on 
 redeeming the mortgage, in order duly to 
 enforce his claim : and when any such per- 
 son does so redeem, he or she becomes sub- 
 stituted to the rights and interests of the 
 original mortgagee. But, as a general rule, 
 a cestui que trust must redeem through his 
 trustee ; and no creditor or annuitant, or 
 legatee of the mortgagor, who has not a 
 specific security upon the property mort- 
 gaged, can file a bill to redeem, though the 
 mortgaged property would, if redeemed, be 
 applied in a course of administration in 
 discharge of his claims. (8t. § 1023; 2 Sp. 
 660 — 663.) As regards the right to redeem, 
 there is no substantial difi'erence between a 
 mortgage in the form of a trust for sale, and 
 a mortgage in the ordinary form. ( Wicks v. 
 Scrivens, 1 Johns. & Hem. 215; Kirkwood v. 
 Thompson, 2 Hem. & Mil. 390.) 
 
 A purchaser of an equity of redemption 
 cannot file a bill to redeem an existing 
 mortgage until his purchase is completed. 
 (2 Sp. 668.) 
 
 Every person who has a right to redeem 
 the mortgage, may redeem any prior incum- 
 
320 MOETSAGBS OF REALTY. 
 
 Cap III braneer, on payment of principal, interest, 
 seoj. g^j^jj costs due to hip ; the redeeming party- 
 being also liable to be redeemed by those 
 below him, who are all liable to be redeemed 
 by the mortgagor. (2 Sp. 665.) 
 Annual In settling the accounts between the mort- 
 
 rests. ° 
 
 gagor and mortgagee, where the latter has 
 been in possession, sometimes annual rests 
 are made, so that the excess of rent or value 
 beyond the interest may be applied in liqui- 
 dation of the principal. Eests are not made 
 where the interest of the mortgage is in 
 arrear at the time when the mortgagee takes 
 possession. But where there is a special 
 reason for making annual rests, as where no 
 arrears of interest are due at the time wheu 
 the mortgagee enters into possession, or any 
 agreement exists between the parties by 
 which the interest in arrear is converted 
 into principal; there, and in such cases, an- 
 nual rests will be made. (St. § 1016 a; 2 Sp. 
 809 ; Scholefield v. Lockwood (No. 3), 32 Beav. 
 489.) Annual rests will equally be directed 
 in respect of the occupation-rent fixed on a 
 mortgagee in possession, as in respect of 
 rents received. (2 Sp. 811.) 
 Possession. The mortgagor is not entitled to the pos- 
 session in respect of his equitable estate. 
 
MORTGAGES OF REALTY. 321 
 
 unless there is some special agreement to ^"- ™. 
 that effect, but he holds it solely at the will ®f^- 
 of the mortgagee, who may at any time, 
 without giving any prior notice, recover the 
 same by ejectment against him, unless he is 
 ready to pay principal, interest, and costs, or 
 against his tenants under a tenancy created 
 subsequently to the mortgage ; and he is not 
 even entitled to reap the crop. But so long 
 as he continues in possession by the per- 
 mission of the mortgagee, he is entitled to Bents. 
 take the rents and profits in his own right, 
 without rendering any account whatever to 
 the mortgagee, though the mortgaged prop- 
 erty may have become an insuflScient se- 
 curity. But he will not be permitted to do waste, 
 anything which may diminish the security 
 of the mortgagee. Yet he may cut down 
 timber when in possession, unless the land 
 alone would be a scanty security. (St. § 
 1017; 2Sp. 646, 648.) 
 
 A mortgagee in possession is not obliged Expendi- 
 to lay out money any further than to keep 
 the property in necessary repair; and he 
 has no right to make it more expensive for 
 the mortgagor to redeem than may be re- 
 quired for the purpose of keeping the prop- 
 erty in a proper state of repair, and of 
 
322 MORTGAGES OF REALTY. 
 
 Cap ill pi'otecting the title to the property. Hence, 
 Sec^i. jjg ^jjj jjqj. jjg allowed for general improve- 
 ments made without the consent or acqui- 
 escence of the mortgagor. (St. § 1016 b; 2 
 Sp. 808.) 
 V. Mori^ V. Where a mortgage is by assignment of 
 
 g£Lge of 
 
 leasehold, a leasehold interest, the mortgagee, unless 
 there is a special provision to the contrary, 
 as between the mortgagor and the mort- 
 gagee, talies the leasehold subject to the 
 covenants and obligations of the original 
 lease. But if an underlease, instead of an 
 assignment, is taken, the mortgagee is pro- 
 tected. (2 Sp. 614.) 
 
 A mortgage, whether legal or equitable, 
 of leasehold premises, includes the goodwill 
 of a trade followed on the premises, and the 
 fixtures. (2 Sp. 637.) 
 Mortgage of Neither the mortgagor nor the mortgagee 
 leasehold, of a renewable leasehold is bound to renew, 
 unless it is a part of his contract to do so. 
 If a renewable leasehold is assigned byway 
 of mortgage, an agreement between the land- 
 lord and the mortgagee, without the con- 
 currence of the mortgagor, will not bind the 
 mortgagor. (2 Sp. 650 ; Coote, Mortg. 3d 
 ed. 122, 344.) 
 
 VI. Rent .^ 1 1 . n J 
 
 instead of VI. Where the relation of mortgagor aud 
 
 interest. 
 
MORTGAGES OP EEALT1. 323 
 
 mortgagee subsists, it is hardly possible that ^™- ™- 
 an agreement under which the mortgagee is seo^. 
 to hold the land at a rent as an equivalent 
 for interest can be supported ; it being con- 
 sidered, independently of the question as to 
 usury in cases under the old law, to be 
 against public policy, that such agreements 
 should be permitted to take place between 
 parties, one of whom has an obvious advan- 
 tage over the other. (2 Sp. 617.) 
 
 VII. A solicitor may take a mortgage vii. Mort- 
 
 gage for 
 security from his client for costs already costs. 
 
 due, but not for costs to become due. (2 Sp. 
 
 630.) 
 
 VIII. Lands are sometimes convej-ed by viii. con- 
 
 veyance in 
 
 way of mortgage to a third person agreed trust to sell. 
 upon by the mortgagor and mortgagee, or to 
 the mortgagee himself, in trust, upon non- 
 payment of the mortgage-money at the ajD- 
 pointed time, and usually upon notice, to 
 sell the estate, to satisfy the debt out of the 
 proceeds. In this case, though the mort- 
 gagor covenant to join, the purchaser cannot 
 require that he should join in the convey- 
 ance. (2 Sp. 634.) 
 
 IX. Where a person affects to make a ix. Defec- 
 
 tive mort- 
 mortgage, but the deed is defective, further gage. 
 
 assurance will be enforced in Equity, (2 Sp. 
 
324 MOBTGAaES OF REALTY. 
 
 Tit. III. 639.) If a man, after making a defective 
 seo^. mortgage to one person, makes a mortgage 
 by an assurance which is effectaal to another 
 person, the second will prevail, if he lent 
 his money on the security of the land and 
 without notice ; because he has equal Equity 
 and the legal title. (2 Sp. 639.) But (so 
 far at least as the stat. 1 Vict. c. 110, does 
 not alter the case), a defective mortgage 
 would prevail against a mere subsequent 
 judgment creditor, who is in the nature of 
 a volunteer as regards his lien on the land. 
 (2 Sp. 639, 640.) 
 X. Payment X- A mortgagee, whose money is not paid 
 on the day appointed by the proviso, is 
 entitled to six months' notice previously to 
 its being paid. If the money is not tendered 
 on the day of the expiration of the notice, 
 the mortgagee is entitled to another six 
 months' notice. If the mortgagee refuse to 
 receive his money after due notice, interest 
 will cease from the time of the tender, pro- 
 vided the mortgagor keep the money con- 
 tinually ready and make no profit by it. 
 The first mortgagee is bound to accept pay- 
 ment of his principal, interest, and costs, 
 when tendered by a second mortgagee, and 
 thereupon to convey ,to him the estate, 
 
MORTGAGES OP REALTY. 325 
 
 whether the tender be made with or without T". iir. 
 
 Cap. III. 
 
 the privity of the mortgagor ; and, generally sec^. 
 speaking, he is justified in accepting pay- 
 ment from, and transferring the legal estate 
 to, any person who tenders the principal, 
 interest, and costs due to him, that person 
 being interested in the equity of redemp- 
 tion. (2 Sp. 652, 653.) 
 
 If the condition is for payment to the 
 mortgagee, his heirs or his executors, the 
 mortgagor, after the death of the mortgagee 
 and before forfeiture, may pay either the 
 heir or the executor, as he pleases; but 
 after forfeiture, the money is to be paid to 
 the executor ; and even if paid to the heir 
 before forfeiture, it belongs to the executor; 
 because the Court of Chancery considers a 
 mortgage debt as part of the mortgagee's 
 personalty; the money came from that 
 source and is to be returned to it. (See 2 
 Sp. 650, 651.) 
 
 XI. There is a kind of mortgage called xi. weish 
 a Welsh Mortgage, which, however, has now 
 fallen into disuse, in which there is no con- 
 dition or proviso for repayment at any time. 
 The agreement is that the mortgagee, to 
 whom the estate is conveyed, shall receive 
 the rents till his debt is paid ; and in such 
 28 
 
326 MORTGAGES OF REALTY. 
 
 Ca^' in ^^^^ ^^^ mortgagor and his representatives 
 hec^. g^j,g jjj. liberty to redeem at any time. (2 
 Sp. 616.) 
 XII. Mort- XII. Where a husband is seised jure 
 
 gage of . .„ . . . 
 
 wife's es- uxoris, and he and his wife loin in a mort- 
 
 tate. ' ■' 
 
 gage, reserving the equity of redemption to 
 him and his heirs, he has the equity of re- 
 demption jure uxoris as he before had the 
 legal estate, unless it is evident that the 
 transaction is more than a mere mortgage, 
 or the limitation of the estate is perfectly 
 distinct from the equity of redemption. (2 
 Sp. 644. See also JEarl of Huntingdon v. Coun- 
 tess of Huntingdon, 2 Lead. Cas. Eq. 2d ed. 
 838 et seq. ; Eddleson v. Collins, 3 D. M. & G. 
 1 ; Whitbread v. Smith, Id. 727 ; Hughes v. 
 O'Neil, 2 D. & J. 399.) But at the same 
 time the intention to alter the previous title 
 may be manifested by the language of the 
 proviso itself, and there is no necessity for 
 an express declaration or a recital to that 
 effect. ^Atkinson v. Smith, 3 D. & J. 186, 
 192.) 
 
 Where a mortgage is made of the wife's 
 lands, to secure money borrowed by the 
 husband^and in the absence of evidence to 
 the contrary, the loan will be presumed to 
 have been obtained for his purposes — his 
 
MOKTGAGES OF REALTY. 327 
 
 estate, especially where he covenants to pay ^^- ™- 
 the debt, is made to pay the mortgage- sec^i. 
 money, at the instance of the wife or of the 
 heir of the wife ; although the husband may 
 have paid off the mortgage, and taken an 
 assignment in trust for himself, his execu- 
 tors, &c., and though by consequence lega^ 
 cies given by the husband may be defeated ; 
 for the wife joining in the security does 
 not make it less the debt of the husband, 
 and her estate is considered as surety only 
 for the debt. (2 Sp. 841, 842. See Schole- 
 field V. Lockwood (No. 1), 32 Beav. 434, 
 as a case to which this doctrine did not 
 apply.) 
 
 XIII. After notice of a second mortgage, xiii. First 
 
 , mortgagee 
 
 the first mortffaaree is answerable to the answerable 
 
 ^ ^ to second. 
 
 second for the rents and profits he has re- 
 ceived or might have received. (2 Sp. 648.) 
 And where the mortgagee enters, and then 
 permits the mortgagor to receive the rents, 
 he will be accountable, as mortgagee in pos- 
 session, to a subsequent incumbrancer, of 
 whose incumbrance he had notice. (2 Sp. 
 806.) 
 
 XIV. The mortgagee, or those claiming xiv. Title 
 under him, cannot dispute the title of the 
 mortgagor. (2 Sp. 654.) 
 
328 MORTGAGES OF REALTY. 
 
 Tit. m. XT. An assignment of a mortgage is an 
 
 Sec. L ' 
 
 assignment of the debt, and it is not neces- 
 mJnt^f^"" sary that notice should be given to the 
 mortgage. j^Q^tgagor. (2 Sp. 655.) 
 
 If a mortgagee in possession assigns over 
 his mortgage without the assent of the mort- 
 gagor, the mortgagee is still bound to answer 
 for the profits both before and after the 
 assignment, though assigned only for his 
 own debt ; for he is under a trust to answer 
 for the profits of the pledge. (2 Sp. 656.) 
 
 The assignee of a mortgagee cannot stand 
 in any different character or hold any dif- 
 ferent position from that of the assignor 
 himself ( Walker v. Jones, L. E. 1 P. C . 50.) 
 Where a person obtained a mortgage 
 without consideration, and the mortgagee 
 transfei's it to a third person, who has no 
 notice of the want of consideration, neither 
 the transferor nor the transferee can en- 
 force it, but it will be ordered to be can- 
 celled. {Parker v. Clarke, 30 Beav. 54.) 
 XVI. What XVI. The purchaser of a mortgage, as a 
 
 apurchaser 
 
 ofamort^ general rule, has a right to claim, against 
 
 gage has a ° ' ° ' ° 
 
 right to the mortgagor, and all deriving title under 
 him, the full amount of what is due on the 
 security, whatever he may have given ; for 
 as he takes the risk, so he is allowed the 
 
MORTGAGES OF EBALTT. 329 
 
 gain, if any. But an heir, a trustee, an tit. m. 
 agent, or an executor of the mortgagor, can seo^i. 
 only claim the amount which he gave for 
 it ; unless he has bought in that security to 
 protect one of his own. (2 Sp. 657, 739; 
 Hobday v. Peters (Ko. 1), 28 Beav. 349.) 
 
 XVII. A gift of a mortgage security is xvii. Gift 
 
 , of mortgage 
 
 a gift of all the testator's interest in the security. 
 money and the security. (2 Sp. 655.) 
 
 XVIII. Where a testator devises all his xvm. De- 
 
 vise by a 
 real estates, whatsoever and wheresoever, mortgagee. 
 
 the legal estate in mortgaged premises will 
 
 pass by the will, unless a diiferent intention 
 
 is to be collected from the context. But it 
 
 would seem that a general devise, or even 
 
 a particular devise of the mortgaged lands, 
 
 will not of itself have the effect of carrying 
 
 the beneficial interest in the mortgage. (2 
 
 Sp. 655 ; Brayhroke v. Inskip, Tudor's Lead. 
 
 Cas. on E. P. 2d ed. 876 et seq.) 
 
 XIX. Generally speaking, a purchaser xix. Bight 
 
 of pur- 
 
 of an equity of redemption, with notice of chaser of 
 
 ^ •' '■ equity of 
 
 subsequent incumbrances, stands in the redemption. 
 same situation, as regards the subsequent 
 incumbrancers, as if he had himself been 
 the mortgagor. And where a second equi- Right of 
 table mortgagee, who becomes such without equitable 
 
 mortgagee. 
 
 botice of the first equitable mortgagee, af- 
 
 28* 
 
330 MOKTSAGBS OF EBALTY. 
 
 Jit. iil terwards, with notice of the first incum- 
 
 seoj. brance, obtains the legal estate from the 
 
 mortgagor, he holds the legal estate subject 
 
 to the first incnmbrance. (2 Sp. 746.) 
 
 XX Eitin- XX. If a mortgage is cancelled by a 
 
 guisbment o o ./ 
 
 EaEedebtby moi'tgagee, and it is SO found in his posses- 
 canoeiiing. gj^^ ^^ j^jg death, it is as much a release as 
 cancelling a bond. But it does not convey 
 or revest the estate in the mortgagor, for 
 that must be done by some deed : the legal 
 estate, in such a case, descends upon the 
 heir; but there being no debt at Law or in 
 Equity, at least upon the mortgage, the 
 Court holds the heir to be a trustee for the 
 mortgagor. (2 Sp. 749.) 
 XXI. Or by XXI. If the debt is paid oS. the mort- 
 
 payment, ^ ' 
 
 gage is extinguished in Equity, and the 
 mortgagee is deemed a trustee for the mort- 
 orby gagor. (2 Sp. 640.) And an extinguish- 
 
 ment of the mortgage debt will take place 
 where the mortgagee becomes the absolute 
 owner of the equity of redemption ; for then 
 the equitable estate merges in the legal; 
 unless it was apparently his intention, or it 
 is manifestly for his interest, to keep the 
 incumbrance alive. (St. § 1035 b; see 
 Hayden v. Kirkpatrick, 34 Beav. 695.) 
 Where a mortgagor and mortgagee join 
 
MORTGAGES OF EBALTT. 331 
 
 in conveying the mortgaged premises to a ^m. in. 
 new mortgagee, the old mortgage may not seoj. 
 be extinguished, as regards priority over a 
 subsequent incumbrance, though the old 
 mortgage debt be paid off by the new 
 mortgagee, and though there be a new cov- 
 enant by the mortgagor, and a new proviso 
 for redemption, and though there be no 
 assignment of the old mortgage debt, if the 
 operative words extend in the usual way to 
 all the right and title of the old mortgagee 
 in the premises. (^Phillips v. Grutteridge, 4 
 D. & J. 531.) 
 
 XXII. The mortgagee cannot be com- xxii. 
 
 Reconvey- 
 
 pelled to reconvey until the money is in ance(a). 
 pocket: payment into Court is not suffi- 
 cient. (2 Sp. 653.) 
 
 XXIII. Where a person makes a mort- xxiii. 
 
 . -, . . . . , . Death of 
 
 eage m fee, and dies intestate without heirs, mortgagor 
 
 ° ° ' ' Intestate, 
 
 the equity of redemption does not escheat to and without 
 the Crown, but belongs to the mortgagee, 
 subject to the debts of the mortgagor. 
 {Beale v. Symonds, 16 Beav. 406.) 
 
 (a) On this subject see stat. 7 A 8 Vict. ». 76, s. 9, 
 repealed by stat. 8 A 9 Vict. c. 106, s. 1 ; and see stat. 13 
 & li Vict. 0. 60, ss. 19, 20. 
 
( 332 ) 
 
 Section II. 
 0/ Equitable Mortgages of Real Property. 
 Tit. III. Besides morteaffcs created by a formal 
 
 Cap. III. ^'^ -^ , . 
 
 Sec. u. instrument, and valid at Law as well as m 
 Equity, there are Equitable Mortgages. 
 These are created either by a written in- 
 strument, or by a deposit of deeds with or 
 without writing. (2 Sp. 777; Mussel v. Mus- 
 sel, 1 Lead. Cas. Eq. 2d ed. 541 et seq.) Any 
 written agreement or directions, or other 
 instrument in writing, showing that it was 
 the intention of a creditor thereby to make 
 his land or other property a security for the 
 debt, will be equivalent in Equity to an 
 actual mortgage by deed or to a pledge. (2 
 Sp. 777—779; Fenwick v. Potts, 8 D. M. & G. 
 506; Daw v. Terrell, 33 Beav. 218.) And a 
 deposit of all or some of the material deeds 
 or documents of title, though they do not 
 show a good title in the depositor (as where 
 they do not comprise the conveyance to 
 him), if made with a creditor (whether with 
 or without any written memorandum, and 
 even without a word passing), as security 
 
EQUITABLE MORTSAGES. 333 
 
 for an antecedent debt, or on a fresh loan Jit. in. 
 
 ' Cap. III. 
 
 of money, constitutes an equitable mortgage, set^i. 
 (St. § 1020 ; 2 Sp. 781 ; Lacon v. Allen, 3 
 Drewry, 579; Boberts v. Croft, 24 Beav. 223; 
 2 D. & J. 1.) 
 
 The doctrine that such a deposit creates 
 an equitable mortgage appears to arise from 
 the nature of the case. A Court of Law 
 could not assist a debtor who has made such 
 a deposit, to recover back his title-deeds by 
 an action of trover ; the answer to such an 
 action being that the title-deeds were pledged 
 for a sum of money, and that, until the 
 money is paid, the debtor has no right to 
 them. So if the debtor should come into 
 Equity for relief, he would be told, that 
 before he sought equity, he must do equity, 
 by repaying the money for which the deeds 
 had been lodged in the creditor's hands. 
 (St. § 1020, note.) 
 
 The deposit will cover subsequent ad- 
 vances, if it clearly appears that they were 
 made upon the faith of that security, or that 
 the original deposit was continued with an 
 agreement for a further advance. (2 Sp. 
 781.) 
 
 The meaning and object of the deposit 
 may be explained by parol evidence. (2 Sp. 
 
334 
 
 EQUITABLE MORTGAGES. 
 
 Tit. hi. 
 Cap. III. 
 Sec. II. 
 
 784.) And evidence is admissible to show- 
 that a delivery of deeds to a third person, 
 by a person not being the party whose es- 
 tate is sought to be charged, even though 
 no money passed at the time, constituted an 
 equitable mortgage. (2 Sp. 784.) 
 
 An equitable mortgagee, by deposit of 
 title-deeds, will have preference over a sub- 
 sequent purchaser or mortgagee of the legal 
 estate with notice j but not over a subse- 
 quent purchaser or mortgagee who has the 
 legal estate, and had no notice of such equi- 
 table mortgage. (Coote Mortg. 3d ed. 170.) 
 
 An equitable incumbrancer on property, 
 who has distinct notice of a prior incum- 
 brance, cannot, by concealing his knowledge 
 from his assignee, give such assignee a better 
 right than that which he himself possesses. 
 i^Ford V. White, 16 Beav. 125.) 
 
 Sectxon III. 
 
 Sec. m 
 
 I. A raort- 
 gage and a 
 pledge dis- 
 tinguished 
 from each 
 other. 
 
 Of Mortgages and Pledges of Personal 
 Property. 
 
 1. A mortgage of personal property is a 
 transfer of the ownership itself, subject to be 
 defeated by the performance of the condition 
 
MORTGAGES AND PLEDGES OF PERSONALTY. 335 
 
 ■within a certain time. But a pledge only ^^- ig- 
 passes the possession, or at most a special secjcii. 
 property, to the pledgee, with a right of 
 retainer till the debt is paid or the engage- 
 ment is fulfilled. (St. § 1030 ; 2 Sp. 771.) 
 
 II. A mortgage or pledge of personal ii. Tacking, 
 property may be held till a subseciuent debt 
 
 or advance, without notice of a mesne in- 
 cumbrance, is paid, as well as the original 
 debt (except in a case of a bankruptcy), on 
 the ground that it may be presumed that the 
 mortgagee or pledgee would not have lent 
 the further sum except on the credit of the 
 mortgage or pledge, and that he who seeks 
 equity must do equity. This presumption 
 may indeed be rebutted by circumstances; 
 but, unless it is rebutted, it will generally 
 prevail in favor of the lien, against the 
 pledgor himself, although not against his 
 creditors, or against subsequent purchasers 
 of the equity of redemption. (St. § 1034; 
 2 Sp. 772, 773.) 
 
 III. A mortgagor of personal property in. Mort- 
 may redeem, if he brings his bill within a I'^^l^ ^^j 
 reasonable time. But, on the other hand, ^"j^f^^^il 
 the mortgagee may, on due notice, sell the 
 property, instead of bringing a bill of fore- 
 closure. (St. § 1081; 2 Sp. 637.) The 
 
336 MOKTGAGES AND PLEDGES OF PERSONALTY. 
 
 Cap' in ^®*soii would appear to be that on which the 
 SEom. Court of Chancery acts in not decreeing a 
 specific performance of agreements respect- 
 ing personal property; namely, that other 
 things of the same kind, and of the very 
 same worth, even to the owner himself, may 
 be purchased for the sum which the articles 
 in question fetch; and therefore if such 
 property is mortgaged, the mortgagee may 
 properly be allowed to sell it, on due notice, 
 without the inconvenience of filing a bill of 
 foreclosure. 
 IV. Mort- IV. If a person transfers his shares in a 
 
 g£ige of 
 
 shares. Company by way of mortgage, and the mort- 
 gagee, as registered owner, becomes liable 
 for calls or other payments, he cannot compel 
 his mortgagor to indemnify him, unless he 
 comes to redeem. (2 Sp. 774.) 
 
 v.Mortgage V. The mortgagee of a ship is entitled to 
 
 of a ship. 
 
 the acermng freight from the time he takes 
 possession. (2 Sp. 775.) A security valid in 
 Equity may be given upon freight to be 
 earned or a cai'go to be acquired. (2 Sp. 775.) 
 A legal mortgage of a ship must be in the 
 form described by the Merchant Shipping 
 Act (17 & 18 Vict. c. 104.) Prior to the stat. 
 25 & 26 Vict. c. 63, s. 3, an equitable mort- 
 gage was invalid. {^Liverpool Borough Bank 
 
MORTGAGES AND PLEDGES OF PERSONALTY. 337 
 
 V. Turner, 2 D. P. & J. 502.) Bat by that tit. m. 
 enactment, " equities may be enforced against sec^ii. 
 owners and mortgagees of ships in respect 
 of their interest therein, in the same manner 
 as equities may be enforced against them 
 in respect of any other personal property." 
 
 VI. In the case of pledges, if a time for vi. PieSg- 
 
 "^ ° ' or's right of 
 
 redemption is fixed by the contract, still the leaemption. 
 pledgor may redeem it afterwards, if he ap- 
 plies to the Cburt of Chancery, within a 
 reasonable time. If no time is specified for 
 the payment, the pledgor may redeem it at 
 any time during his life, unless he is called 
 upon to redeem by the pledgee ; and if he 
 fails in so redeeming it, his representatives 
 may redeem it. But the remedy is at Law, 
 unless some special ground is shown ; as if 
 an account or discovery is wanted, or there 
 has been an assignment of the pledge. (St. 
 § 1032 ; 2 Sp. 637, 772, 773.) 
 
 VII. On the other hand, the pledgee may vn. 
 bring a bill in Equity to foreclose and sell right ofaaie. 
 the pledge ; but on giving due notice, the 
 pledgee may sell the pledge without any 
 decree of sale, (St. § 1033 ; 2 Sp. 637, 771.) 
 
 29 
 
( 338 ) 
 
 Section IV. 
 
 Of Liens. 
 
 Tit. III. Liens in Equity are wholly independent 
 sisc. IV. of the possession of the property. 
 Equitable The usual Way of enforcing a lien in 
 
 liens in 
 
 general. Equity, is by a sale of the property to which 
 
 it is attached. (St. § 1217.) 
 Lien of a The lien of a solicitor on the deeds, books, 
 
 solicitor for 
 
 costs. and papers of his client, for bis costs, is not 
 
 like a lien arising in the case of contract : 
 it has not the character of a pledge or ^ 
 mortgage ; but it is merely a right to with- 
 hold the deeds, books, and papers which 
 have come into his possession as solicitor, 
 and not a right to enforce his claim against 
 the client. It prevails as against the rep- 
 resentatives of the client, but it is only com- 
 mensurate with the right of the client, and 
 is subject to the rights of third persons as 
 against him : so that a prior incumbrancer 
 cannot be affected by it; and when a mort- 
 gagee is paid off, the solicitor of the mort- 
 gagee cannot retain the deeds. (2 Sp. 800, 
 801 ; Francis v. Francis, 5 D. M. & G. 108; 
 
OF LIENS. 839 
 
 Turner v. Turner, 7 D. M. & G. 243 ; see tit. in. 
 also Watson v. Lyon, Id. 288; and In re Seo^. 
 Bank of Hindustan, dsc, L. E. 3 Ch. Ap. 
 125.) 
 
 But a solicitor has a lien upon a fund 
 realized in a suit, as to so much as may be- 
 long to his own client, for his costs of thfe 
 suit or immediately connected with it j and 
 this is a lien which he may actively enforce. 
 (2 Sp. 802 ; Verity v. Wylde, 4 Drew. 477 ; 
 Haymes v. Cooper, 33 Beav. 431.) 
 
 If one of two joint tenants of a lease re- Lien of a 
 
 joint 
 
 news for the benefit of both, he will have a tenant: 
 
 lien on the moiety of the other joint tenant 
 
 for a moiety of the fines and expenses. (2 
 
 Sp. 803.) 
 
 A trustee is entitled to a lien on the trust of a trustee; 
 
 estate for his expenses. (2 Sp. 803.) 
 
 Annuitants scheduled to a trust deed do of annui- 
 tants. 
 not acquire any hen upon the trust estate, 
 
 unless they are made parties to the deed. 
 
 (2 Sp. 104.) 
 
( 340 ) 
 
 CHAPTBE IV. 
 
 OJF APPORTIONMENT AND OONTKIBUTION. 
 
 Tit. hi. 
 Cap. IV. 
 
 I. Juris- 
 diction. 
 
 II. Two 
 classes of 
 apportion- 
 ment. 
 
 Illustra^ 
 
 tiODS of 
 
 tlie first. 
 
 L In several cases under these beads, as- 
 sistance may be had at Law. But even in 
 these cases it may be necessary to resort to 
 Equity, instead of proceeding at Law, in 
 order to avoid a multiplicity of suits; for 
 where there are several parties, as each is 
 only liable to contribute for his own portion, 
 separate actions and verdicts are necessary 
 against each. (St. § 477, 488.) 
 
 II. An apportion ment may be made, either 
 of a benefit, or of an incumbrance, loss, ex- 
 pense, or liability; and in the case of an 
 apportionment of the latter class, a corres- 
 ponding contribution is enforced, conse- 
 quent on such an apportionment. 
 
 To mention an instance of an apportion- 
 ment of a benefit, if an apprentice-fee is 
 given, and the master afterwards becomes 
 bankrupt. Equity will decree an apportion- 
 ment. (St. § 472, 473.) And where por- 
 tions are payable to daughters at a certain 
 
APPORTIONMENT AND CONTRIBUTION. Ml 
 
 age or on marriage, and maintenance is to Trr. in. 
 
 be allowed, payable half-yearly, at specific 
 
 times, until the portions are due ; if one of 
 
 the daughters should attain the given age at 
 
 an intermediate period, the maintenance will 
 
 be apportioned in Equity. (St. § 479 ; 2 Sp. 
 
 462.) 
 
 On the other hand, with regard to an iiiustrar- 
 
 tions of ap- 
 
 apportionment of, and contribution towards, portion- 
 
 '^'^ ' . ' meats of 
 
 an incumbrance, loss, expense, or liability, in ^J^^g^™"^ 
 the absence of an indication to the contrary, 
 where several estates or parts of estates are 
 comprised in one mortgage, and they be- 
 come vested by devise, descent, or otherwise 
 in several persons, each estate or part of 
 an estate mortgaged must, according to 
 its value, contribute proportionally to keep 
 down the interest or to pay oflf the principal. 
 (St. § 484.) And so it is with different persons 
 having distinct limited interests in an estate 
 which is under mortgage. (St. § 485 ; 2 Sp. 
 837.) And as between a tenant for life and 
 a remainder under a will, the interest on the 
 testator's debts must be borne by the income 
 as from the day of the testator's death. 
 (^Barnes v. Sond, 32 Beav. 653.) 
 
 III. If a tenant in tail in possession pays iii. volun- 
 tary dis- 
 off an incumbrance on the estate, it will or- chargoof an 
 
 29* 
 
342 APPORTIONMENT ANB CONTKIBUTION. 
 
 Cap iv' <^i°^"ly ^^ treated as extinguished, and the 
 
 . remainderman cannot be called upon for a 
 
 ?enaDtl'n " Contribution, unless the tenant in tail keeps 
 a'tcnant'for alive the incumbrance by some suitable as- 
 signment, or otherwise manifests his. inten- 
 tion to hold himself out as a creditor of the 
 estate in lieu of the mortgagee j because a 
 tenant in tail in possession can make him- 
 self absolute owner of the estate ; and there- 
 fore, if he discharges incumbrances, he is 
 presumed to do so in the character of owner, 
 unless he clearly shows that he intends to 
 become a creditor in respect of such dis- 
 charge. But the like doctrine does not ap- 
 ply to a tenant in tail in remainder, whose 
 estate may be altogether defeated, or to a 
 tenant for life ; for, if either of these persons, 
 and especially a tenant for life, pays off an 
 incumbrance, it must be presumed that he 
 means to keep it alive, against thfe inherjt- 
 ance,:for.his benefit. But, in both of these 
 cases, the presumption may be rebutted by 
 circumstances which demonstrate a contrary 
 intention. And if a tenant for life pays off 
 a bond, debt, it will not be presumed that he 
 meant to keep it alive. {Morley y. Morley, 
 6 D. M. & G. 610; St. § 486 j 2 Sp. 308, 344, 
 345,848.) 
 
APPORTIONMBNT AND CONTEIBUTION. 343 
 
 ' IV. With respect to the compulsory dis- tit. m. 
 charge of incumbrances, the modern rule „, ":; — , 
 
 ° ' IV. Compul- 
 
 is this : that the tenant for life shall con- cSge' of 
 tribute, beyond the interest, in proportion SanSs. 
 to the benefit he derives from the liqui- 
 dation of the debts, and the consequent 
 cessation of interest, which of course will 
 much depend on his age, and the compu- 
 tation of the value of his life. If the estate 
 is sold to discharge incumbrances (as the 
 incumbrancer may insist that it shall), the 
 surplus which remains after discharging 
 the ificumbrance is to be applied as fol- 
 lows : the income thereof is to go to the 
 tenant for life during his life ; and then 
 the whole capital is to be paid over to the 
 remainderman or reversioner. (St. § 487 ; 
 2 Sp. 551, 841.) 
 V. A tenant for life is bound to keep v. Keeping 
 
 down the 
 
 down interest which has accrued during his interest on 
 
 ° incum- ■»• 
 
 own time, so far as the rents and profits 
 •will extend. But if there are any arrears 
 which accrued during the life of a preceding 
 tenant for life, and such arrears cannot be 
 recovered from, his estate, they are primarily 
 a charge upon the inheritance. (St. § 488, 
 1028 a ; 2 Sp. 551 ; Dixon v. Peacock^ 3 
 Drewry, 288, 292; Sparshaw v. Gibbs, 1 
 
 incum- 
 brances. 
 
344 APPORTIONMENT AND CONTRIBUTION. 
 
 cIp iv' ^*y' ^^^' Tudor's Lead. Cas. on E. P. 2d 
 ed. 82 et seq.) 
 
 Where a tenant for life of an estate, sub- 
 ject to a charge bearing interest, pays the 
 interest, although the rents and profits are 
 insufficient for that purpose, he cannot make 
 himself an incumbrancer on the estate for 
 the excess in his payments, if he has not 
 given to the remainderman any intimation 
 of the insufficiency of the rents and profits, 
 and of his intention to charge the excess of 
 his payments on the inheritance. (Lord 
 Kensington v. Bouverie, 7 Ho. of Lords, 
 557.) 
 
 A tenant in tail in possession, if of full 
 age, cannot be compelled by the remainder- 
 man or reversioner to pay the interest; be- 
 cause he can make himself absolute owner of 
 the estate ; and even if the remainderman or 
 reversioner ultimately takes, still, instead of 
 having any just ground of complaint that 
 the interest has not been kept down, he has 
 cause to be grateful to the tenant in tail for 
 not barring the remainder or reversion. If, 
 however, such a tenant in tail does pay the 
 interest, his personal representatives have 
 no right to be allowed the sum so paid, as a 
 charge on the estate ; because he is supposed 
 
APPORTIONMENT AND CONTRIBUTION. 345 
 
 to have kept down the interest, as owner '^^ ™- 
 for the benefit of the estate. (St. § 488.) — 
 
 If a tenant in tail is an infant, his guar- 
 dian or trustee will be required to keep down 
 the interest ; because the infant cannot of 
 his own free will bar the remainder or rever- 
 sion. (St. § 488, note.) 
 
 VI. Whei-e leaseholds for years or for lives vi. Charges 
 
 of renewal 
 
 arc settled upon several persons in succes- "^i^J^"" 
 
 sion, the rule, in the absence of any express 
 
 direction, is, to apportion the charges for 
 
 the renewal of leaseholds between the tenant 
 
 for life and the remainderman, in proportion 
 
 to the enjoyment they have of the renewed 
 
 lease. (2 Sp. 545, 546.) 
 
 YII. Another case of apportionment and vii con- 
 tribution 
 contribution arises in regard to sureties, between 
 
 ^ sureties. 
 
 Originally, it seems to have been questioned 
 whether contribution between sureties, un- 
 less founded on some positive contract be- 
 tween them, could be enforced at Law. And 
 although there is now no doubt that it may, 
 yet the legal jurisdiction now assumed in no jurisdic- 
 way affects that which belongs to Equity. 
 (St. § 495, 496; Dering v. Harl of Winchel- 
 sea, 1 Lead. Gas. Eq. 2d ed. 78 et seq.) The 
 contribution thus enforced is not grounded 
 on mutual contract, express or implied, but 
 
846 APPORTIONMENT AND CONTRIBUTION. 
 
 Cap ?v °° principles of natural justice. (St. § 
 — " 493.) 
 Where such If ouc surety, on the default of the prin- 
 
 contribu- . , . hi -i i i j* 
 
 tiou Is en- cipal, 18 Compelled to pay the whole sum of 
 money, or to perform any other obligation 
 for which all become bound, he can oblige 
 each of his co-sureties, and the representa- 
 tives of any deceased surety, to contribute, 
 whether the sureties are jointly and severally 
 bound, or only severally, unless there is an 
 express or implied contract to the contrary, 
 and whether their suretyship arises under 
 the same instrument or under different in- 
 struments, either executed with his knowl- 
 edge or not, if all the instruments are pri- 
 mary concurrent securities for the same debt. 
 (See St. § 492, 495, 497, 498; 2 Sp. 843.) 
 But if the instrument is intended to be only 
 subsidiary to and a security for the other in 
 case of a default in payment, and not to be 
 a primary concurrent security, the surety 
 in the subsequent bond would not be com- 
 pelled to aid those in the other by any con- 
 tribution. (St. § 498 ; 2 Sp. 844.) 
 
 What is the The Contribution will generally be equal; 
 
 quantum. .,./,.,. 
 
 but it there is a contract express or implied 
 to the contrary, it will be otherwise. (St. 
 § 498; 2 Sp. 844.) And if there are several 
 
APPOKTIONMENT AND CONTRIBUTION. 347 
 
 sureties, and one of them is insolvent, and Jit. m. 
 
 ' ' Cap. IV. 
 
 another pays the debt, he can recover from 
 
 the solvent surety or sureties, as much as 
 such solvent surety or sureties would have 
 had to pay if the insolvent had never under- 
 taken the office of surety. (St. § 496; 2 Sp. 
 844; Hitchman v. Stewart, 3 Drewry, 271.) 
 And when there are several distinct bonds, 
 with different penalties, and a surety on one 
 bond pays the whole, the contribution is in 
 proportion to the penalty of their respective 
 bonds. (St. § 497.) 
 
 VIII. Another instance of apportionment viii. 
 
 General 
 
 and contribution is that of general average, average. 
 which is a general contribution that is to be 
 made by all parties in interest toward a loss 
 or expense, which, in the course of a voyage, 
 is voluntarily sustained or incurred for the 
 benefit of all ; as where goods are thrown 
 overboard to lighten the ship. The contri- 
 bution is confined to the property saved 
 thereby, including the ship, the freight, and 
 the cargo. It is obvi9U8 that this could not 
 be adjusted at Law without a multiplicity of 
 suits. (St. § 490, 491; Birldey v. Presgrave, 
 Tudor's Lead. Cas. Merc. Law, 2d ed. 83 et 
 seq.) 
 
( 348 ) 
 
 CHAPTEE T. 
 
 OF PAETNEESHIP. 
 
 Tit. III. I. Courts of Equity exercise a full con- 
 Cap. v. ^ ^ T . 
 current jurisdiction with Courts of Law in 
 
 I. Jurisdic- 
 tion, all matters of partnership; and, indeed, 
 
 practically speaking, they exercise an ex- 
 clusive jurisdiction over the subject in all 
 cases of any complication or difficulty. (St. 
 § 683. See, on this subject, Crawshay v. 
 Maule, and Waters v. Taylor, Tudor's Lead. 
 Cas. Merc. Law, 2d ed. 310, 329 et seq.) 
 
 II. Specific II. In general the Court of Chancery will 
 
 perform- 
 ance of an not enforce a specific performance of a con- 
 agreement -^ *■ 
 
 mrtner-"'" t^act to enter into a partnership which may 
 
 *'''P' be dissolved instantly at the will of either 
 
 party, since that would ordinarily be useless. 
 
 But it will decree a specific execution of an 
 
 agreement to enter into a partnership for a 
 
 Carrying limited time, and to furnish a share of the 
 
 into elfect 
 
 the articles capital stock. (St. § 666.) And after a 
 a'parTne^r" partnership has commenced, the Court will 
 commeMed. Carry into effect the articles of partnership. 
 
PARTNERSHIP. 349 
 
 unless there is an entirely adequate remedy tit. m. 
 at Law. An exception, however, occurs, 
 where there is an agreement, that, in case of 
 any dispute, the same shall be referred to 
 arbitration ; for Courts of Equity will not 
 enforce such an agreement, but will leave 
 the parties to their own pleasure. (St. § 
 667, 670.) 
 
 Where partners, after the expiration of the Appiieatiou 
 time fixed by the articles for the duration of after cosser 
 
 of term. 
 
 the partnership, continue to carry on busi- 
 ness without altering the terms, it will be 
 deemed a partnership at will, regulated by 
 the articles so far only as they are consistent 
 with a partnership at will. (^Glark v. Leach, 
 32 Beav. 14.) 
 
 III. A partnership may be dissolved, in iildissoIu- 
 
 r r J ! tionde- 
 
 the ordinary way, by death ; by the act of er^ea. 
 the parties ; by effluxion of time ; and in 
 other ways. (See Smith's Manual of Com. 
 Law, 3d ed. 201.)^ But Courts of Equity will 
 dissolve the partnership before the regular 
 time, in ease, by reason of the ill-feeling be- 
 tween the partners or other circumstances it 
 is impracticable to carry on the undertaking 
 at all, or at least according to the stipulations 
 of the articles, or beneficially; or in case of 
 the insanity, permanent incapacity, or gross 
 
 30 
 
350 PARTNERSHIP. 
 
 Cap ™' misconduct of one of the parties. (St. § 673; 
 
 Harrison v. Tennant, 21 Beav. 482; Jennings 
 
 V. Baddeley, 3 K. & J. 78 ; Baxter v. West, 
 1 Dr. & Sm. 173; Watney v. TFeife, 30 Beav. 
 56; Essell v. Hayward, 30 Beav. 158; iJow- 
 land V, Evans, 30 Beav. 303; Leary v. Shout, 
 33 Beav. 582.) And a partnership will also 
 be dissolved at the instance of a partner 
 ■who was induced to enter into it on a false 
 representation. (Bawlins v. Wickham, 1 
 Gif. 355.) 
 
 IV. Dissoiu- IV. On the other hand, in the case of a 
 
 tionpro- .... , -, 
 
 hibited. partnership existing during the pleasure of 
 the parties, with no time fixed for its renun- 
 ciation, Equity will grant an injunction 
 against a dissolution, if a sudden dissolution 
 is about to be made in ill faith, and would 
 work irreparable injury. (St. § 668; Lind- 
 ley, 179.) 
 
 V. Injury Y. An injunction will be granted to pre- 
 
 prevented. , , „ , . .... 
 
 vent a partner from doing acts injurious to 
 the partnership. (St. § 669.) 
 
 VI. Account ^^- Wlicre a dissolution has taken place, 
 agM^r"" not only will an account be decreed, but, if 
 
 necessary, & manager or receiver will be 
 appointed to close the business, and make 
 sale of the property. (St. § 672.) But the 
 Court of Chancery is not inclined to decree 
 
 receiYcr, 
 
PARTNERSHIP, 351 
 
 an account, except under special circum- ^Ip™' 
 stances, if there is no actual or contemplated 
 dissolution, so that all the affairs of the part- 
 nership may be wound up. (St. § 671.) 
 
 VII. On a dissolution, one of the co- vii. Par- 
 
 tltiou. 
 
 owners of leaseholds cannot insist on a par- 
 tition, but the whole must be sold. (Wild 
 V. Milne, 26 Beav. 504.) 
 
 VIII. A partner using any portion of the viii. usmg 
 
 1.1. r. stock after 
 
 partnei'ship stock, after a dissolution, for any dissolution. 
 purpose other than for the winding up of 
 the concern, will be treated as a trustee for 
 the others, or their representatives, of the 
 profits he may have made thereby. (2 Sp. 
 208.) 
 
 IX. Real estate bought and held for the ix. Real 
 purposes of a partnership in trade, as a part 
 
 of the stock in trade, will be considered in 
 Equity, although not at Law, as personal 
 estate to all intents and purposes, whatever 
 may be the form of the conveyance ; so as to 
 be subject to all the equitably rights and 
 liabilities of the partners and their creditors; 
 and so as to pass to the personal representa- 
 tives and distributees, on the death of a 
 partner, except, perhaps, where there is a 
 clear expression of the deceased partner that 
 it shall go to his heir-at-law beneficially, or 
 
352 PARTNEESHIP. 
 
 c"p 'v' ^'''^ partners have stipulated that freehold 
 lands purchased by them shall descend to 
 their heirs-at-law beneficially. (Smith's Merc. 
 Law, 6th ed. 179; St. § 674; Darby v. Darhy, 
 3 Drewry, 495; but see 2 Sp. 208—211.) 
 
 X. Eights X. During the partnership, the joint cred- 
 creditois. itors havc no lien, until they have obtained 
 
 a judgment : and before they have issued 
 and registered process of execution, they 
 cannot prevent the partners from effectually 
 transferring the property by a bona fide 
 alienation. (See 2 Sp. 212; stat. 23 & 24 
 Vict. c. 38, s. 1.) 
 
 XI. Priority XI. The Creditors of the jjartnership have 
 
 as between . , n , . , i 
 
 joint and a right to the payment of their debts out of 
 
 separate 
 
 creditors, the partnership funds, before the private 
 creditors of either of the partners; although 
 at Law, this is generally disregarded. On 
 the other hand, the separate creditors of 
 each partner are entitled to be first paid out 
 of the separate effects of their debtor, before 
 the partnership creditors can claim any- 
 thing; although, at Law, a joint creditor 
 may proceed directly against the separate 
 estate. (St. § 675; 2 Sp. 218; Ex parte 
 Muffin, and Ux parte Rowlandson, Tudor's 
 Lead. Cas. Merc. Law, 2d ed. 387, 407 ; Lodge 
 V. Prichard, 4 Gif. 294 ; 1 D. J. & S. 610.) 
 
PARTNBKSHIP. 353 
 
 XII. The partnership creditors may in "(JJp^y- 
 the first instance proceed against the exec- xn~c^di- 
 utors or administrators of a deceased part- p^eeed^ 
 ner, leaving them, to their remedy over deceased 
 against the surviving partner, or vice versa; IstateTin 
 
 , . , , , the first 
 
 because every joint debt is joint and seve- instance. 
 ral. (St. §676; 2 Sp. 213.) 
 
 A similar rule applies to all cases where similar rule 
 
 *■ ^ applies to 
 
 there is a ioint loan to several persons who other joint 
 
 J -t debtors. 
 
 are not partners. (St. § 676.) 
 
 30* 
 
(354) 
 
 CHAPTER VI. 
 
 OV CERTAIN SPECIAL ADJUSTMENTS IN CASES 
 OF DEBTOR AND CREDITOR. 
 
 Section I. 
 
 Of the Marshalling of Securities. 
 
 Tit. III. We have already had occasion to consider 
 
 Sec. I.' the marshalling of assets in cases of Admin- 
 
 Generai istratioD.'to which the present topic bears 
 
 doctrine. ' * ^ 
 
 a close analogy. The general doctrine is 
 that if a creditor has a lien on or interest 
 in two funds belonging to one person, and 
 another creditor has a lien on or interest in 
 one only of the funds, and the claims of 
 both could not be satisfied if the former 
 were to resort to the fund in which alone 
 the latter is interested; there the latter 
 creditor can, in Equity, compel the former 
 to resort to the other fund in the first in- 
 stance for satisfaction, unless that would 
 operate to the prejudice of the party entitled 
 to the double fund of the common debtor. 
 
MARSHALLING OF SECURITIES. 355 
 
 (St. § 633, 642 ; 2 Sp. 834 ; 2 Lead. Cas. Eq. tit. m. 
 2d ed. 79 et seq.) ^fij- 
 
 But although the different securities of Nomar- 
 
 shalliug 
 
 one and the same common debtor will be where one 
 
 of two joint 
 
 marshalled. 80 as to satisfy the different 'J,*^^''"'^!^ 
 
 ./ also a sev- 
 
 creditors, yet where two or more persons of a^thl"/ 
 are under a joint obligation to one creditor, "■^^'i''™- 
 and one of them is also indebted to another 
 creditor. Equity will not compel the joint 
 creditor to satisfy his claim by proceeding 
 against the joint debtor who is only in- 
 debted to such joint creditor, so as to leave 
 the other joint debtor's property for the 
 several creditor ; unless it appears that the 
 joint debt ought in fact to be paid by the 
 debtor who is only indebted to the joint 
 creditor, or that there is some other super- 
 vening equity. (St. § 642—645.) For, in 
 general it would seem that the several cred- 
 itor can have no equity to counterbalance 
 the right of the debtor who is only jointly 
 indebted to the joint .creditor, to have a 
 contribution from the other joint debtor. 
 
( 356 ) 
 
 Section II. 
 
 Of the Mutual Right to the Benefit of Securi- 
 ties between a Creditor and Sureties ; and 
 of the release of Sureties. 
 
 Tit. III. Sureties are entitled to the benefit of all 
 
 Cap. VI. 
 
 Sec. h. securities which have been taken by any of 
 their co-sureties to indemnify themselves 
 against their liability. (St.- § 499.) 
 
 Courts of Equity have also held that on 
 payment, by the sureties to the creditor, of 
 the debt due from the principal, they are 
 entitled to the full benefit of all securities 
 taken by the creditor, at or after the date 
 of the contracts of suretyship, whether the 
 surety has notice of them or not, and 
 whether of a legal or of an equitable nature, 
 which are collateral to or other than the 
 original principal security whereby the debt 
 is evidenced, or which continue to exist, 
 and do not get back, on payment, to the 
 principal debtor. And the surety is so en- 
 titled, not only against the principal debtor, 
 but also against all persons claiming under 
 him ; as, for instance, against a subsequent 
 mortgagee of the debtor, with notice of a 
 
RIGHTS OP CREDITORS AND SURETIES. 357 
 
 prior charge paid off by the surety. Thus, if tit. m. 
 at the time when the bond of the principal ^™- "• 
 and surety is given, a mortgage is made by 
 the principal, to be.an additional security for 
 the debt ; there, if the surety pays tbo debt, 
 he will be entitled to an assignment of the 
 mortgage, and to stand in the place of the 
 mortgagee ; and as the mortgagor cannot get 
 back his estate without a reconveyance, the 
 assignment and security will remain an ef- 
 fectual security in favor of the surety. But, 
 until recently, the surety could not obtain an 
 assignment of the bond itself; nor could he 
 insist on an assignment of a judgment, after 
 he had paid off the debt on the judgment. 
 (St. § 499, 499 b, 499 c, and note, 6-38 ; Pearl 
 v. Deacon, 24 Beav. 186; 1 D. & J. 461; 
 Pledge v. Bass, 1 Johns. 663, and remarks 
 thei'e on Newton v. Ghorlton, 10 Hare, 646 ; 
 Goddard v. Whyte, 2 Gif. 449; Brew v. 
 Lockett, 32 Beav. 449; Strange v. Fooks, 4 
 Gif. 408.) It is enacted, however, by the 
 Stat. 19 & 20 Vict. c. 99, s. 5, that " every 
 person who, being a surety for the debt or 
 duty of another, or being liable with another 
 for any debt or duty, shall pay such debt, 
 or perform such duty, shall be entitled to 
 have assigned to him, or to a trustee for him. 
 
358 KiaHTS OP CEBDITORS AND SURETIES. 
 
 Tit. m. every judgment, specialty, or other security' 
 sec^i. .^jjicij shall be held by the creditor, in re- 
 spect of such debt or duty, whether such 
 judgment, specialty, or other security shall 
 or shall not be deemed at Law to have been 
 satisfied by the payment of the debt or per- 
 formance of the duty ; and such person shall 
 be entitled to stand in the place of the 
 creditor," &c. (1 Lead. Cas. Eq. 2d ed. 87 
 -91.) 
 
 On the other hand, if a surety has a 
 counter bond or security from the principal, 
 the creditor will be entitled to the benefit of 
 it, and may in Equity reach such security to 
 satisfy his debt. (St. § 502, 638.) 
 
 In Equity, whatever act is a discharge of 
 the principal, is also a discharge of the 
 surety, though the surety be not released at 
 Law. (1 Pres. Shep. T. 71; Webb v. Hewitt, 
 3 K. & J. 438.) 
 
 Where a person becomes a surety upon 
 the faith of another also agreeing to enter 
 into the obligation, the former has a right to 
 be relieved in Equity, on the ground that 
 the instrument has not been executed by the 
 latter. {Evans v. Bremridge, 8 D. M. & G. 
 100.) 
 
( 359 ) 
 
 Section III. 
 Of Set-off. 
 As to connected accounts of debts , and tit. hi. 
 
 Cap. VI. 
 
 credits, the balance only is recoverable, sec, hi. 
 whether at Law or in Equity. (St. § 1434.) aeTounte '^ 
 But it would seem that Courts of Equity, indepen- 
 
 ^ •' ' dent debts 
 
 in virtue of their general jurisdiction, are '"^<i«™ands. 
 accustomed to grant relief in all cases where 
 though there are mutual and independent 
 debts, yet there is a mutual credit between 
 the parties, founded -at the time on the 
 existence of some debt due by the crediting 
 party to the other (St. § 1435 ; Cavendish v. 
 Greaves, 24 Beav. 163), or, where peculiar 
 equities intervene. (St. § 1437 a.) And 
 where there are cross demands, of such a na- 
 ture that, if both were recoverable at La tv, 
 they would be the subject of a set-off, there, 
 if either of the demands is a matter of equit- 
 able jurisdiction, the set-off will be enforced 
 in Equity. (St. § 1436 a.) But a set-off is 
 ordinarily allowed in Equity in those cases 
 only where the party seeking the benefit of 
 it can show some equitable ground for being 
 
360 SBl-OFF. 
 
 Cap vi' protected against the demand of the other 
 seg^ii. papty_ rpijg mere existence of cross demands 
 will not be sufficient. A fortiori, a Court of 
 Equity will not interfere, on the ground 
 of an equitable set-off, to prevent a person 
 from recovering a sum awarded to him for 
 damages for a breach of contract, merely be- 
 cause there is an unsettled account between 
 him and the other party in respect to deal- 
 ings arising out of the same contract, where 
 it cannot be assumed that the balance will 
 be found to be in favor of the latter. (St. § 
 1436, and note ; and see Phipps v. Child, 3 
 Dr. 709 J Fisher v. Baldwin, 11 Hare, 352; 
 Jenner v. Morris, 1 Dr. & Sm. 334 ; Smee v. 
 Bnines, 29 Beav. 661.) 
 wiiere one Equity, following the Law, will not allow 
 
 debt is joint 
 
 and the a set-off of a joint debt against a separate 
 
 other sepa- "^ o i 
 
 rate. debt. Or of a separate debt against a joint 
 
 debt ; unless there was a joint credit given 
 on account of the separate debt, or there are 
 other special circumstances to justify such 
 an interj)osition. (St. § 1437.) 
 
 Demands in Except undcr specialcircumfitances.Courts 
 
 ditterent / '^ ' 
 
 rigijta. of Equity have never allowed cross demands 
 existing in different rights to be set the one 
 against the other. And therefore an executor 
 and the trustee of a legacy, who is also the 
 
SET -OFF. 361 
 
 residuary legatee, and had become a creditoi* tit. m. 
 of a person who was the husband and ad- seoiii. 
 ministrator of a deceased legatee, was not, 
 in the absence of any special agreement, 
 allowed to set-off his^ebt against the legacy 
 to which the husband, as such ad-ministrator, 
 was entitled. (JFreeman v. Lomas, 9 Hare, 
 109.) And where a creditor of an intestate 
 purchases part of the intestate's goods from 
 his administrator, the creditor cannot set-off 
 the sum at which he purchased the goods 
 against a debt due to him from the intestate 
 at the time of his decease. (Jjambarde v. 
 Older, 17 Beav. 542.) 
 
 81 
 
( 362 ) 
 
 I. Agency. 
 
 CHAPTEE VII. 
 
 OF CERTAIN MISCELLANEOUS CASES OF 
 ACCOUNT. 
 
 Tit. hi. I. It IS the duty of an agent to keep regu- 
 lar accounts and vouchers. (See remarks of 
 Sir John Eomilly, M. E., in Stainton v. 
 The Carron Company, 24 Beav. 353.) And 
 if he does not, he will not be allowed the 
 compensation which would otherwise belong 
 to his agency. And if he mixes up his 
 principal's property with his own, he is put 
 to the necessity of showing clearly what 
 part of the property belongs to him ; and so 
 far as he is unable to do this, it is treated, 
 both at Law and in Equity, as the property 
 of the principal. (.St. § 468.) 
 
 n. Mesne II. In the ordinary case of mesne pro- 
 profits. 
 
 fits, where aid was clearly afforded at Law, 
 
 Courts of Equity will not interpose. (St. § 
 
 511.) Wherever relief is given in Equity it 
 
 will be found that there is some peculiar 
 
 equitable ground for interference; such as 
 
MESNE PROFITS — WASTE — TITHES. 363 
 
 fraud, accident, or mistake, the want of a ^'^- in^ 
 discovery, some impediment at Law, the ex- 
 istenee of a constructive trust, or the ne- 
 cessity of interposing to prevent multiplicity 
 of suits. (St. § 509—514.) 
 
 III. In cases of legal waste, relief is ordi- iii. Waste. 
 n arily at Law. Yet, according to some cases, 
 
 if a discovery is wanted, that alone, if it is 
 obtained and is of importance, will carry the 
 ulterior jurisdiction to account, in order to 
 prevent a multiplicity of suits. But other 
 decisions, and those which are relied on as 
 constituting the established doctrine of the 
 Court, seem to require, in order to maintain 
 the jurisdiction for an account, that there 
 should be a prayer for an injunction to pre- 
 vent future waste. (St. § 515 — 518.) 
 
 If the waste is equitable only, of course a 
 remedy lies in Equity. (St. § 515, note.) 
 
 IV. Matters of account also arise in regard iv. Tithes 
 
 and 
 
 to tithes and moduses. "Wherever the right moauses. 
 to tithe is clearly established, an account is 
 consequent. But if the right is disputed, it 
 must first be established, before an account 
 will be decreed. (St. § 519.) For some 
 years past, however, tithes have been com- 
 muted for tithe rent charges, under the stat. . 
 6 & 7 Will IV. c. 47, and subsequent Acts. 
 
(364) 
 
 CHAPTBE YIII. 
 
 OP DAMAGES AND COMPENSATION. 
 
 Tit. III. I- It would seem that prior to the stat. 21 
 - — ■ & 22 Vict. c. 27, damag-es or compensation 
 
 I Old rule , , . „ „ , . ^ . -r^ . 
 
 as to daraa- were decreed m favor of a plaintiff in Equity, 
 
 ges or com- 
 
 rTinUff'" °°'y *® incident to other relief, sought by 
 the bill and actually granted, or where there 
 was no adequate remedy at Law, or where 
 some peculiar equities intervened. (St. § 
 
 stat. 21 & 22 724, 798, 799.) But by that statute it is en- 
 
 Vict.c.27. J ' y J 
 
 acted, that " in all cases in which the Court 
 of Chancery has jurisdiction to entertain an 
 application for an injunction against a breach 
 of any covenant, contract, or agreement, or 
 against the commission or continuance of any 
 wrongful act, or for the specific performance 
 of any covenant, contract, or agreement, it 
 shall be lawful for the same Court, if it shall 
 think fit, to award damages to the party in- 
 jured, either in addition to or in substitution 
 . for such injunction or specific performance; 
 and such damages may bo assessed in such 
 
DAMAGES AND COMPENSATION. 865 
 
 manner as the Court shall direct." (Johnson tit. iii. 
 
 ^ Cap. VIU. 
 
 V. Wyatt, 2 D. J. & S. 18 ; Middleton v. Green- 
 
 wood, Id. 142.) By ss. 3, 5, and 6, damages 
 may be assessed before the Court of Chan- 
 cery, either with or without a jury, or by a 
 jury before any Judge of a superior court 
 at Common Law, or before the Sheriff. And 
 the practice is regulated by the same stat- 
 ute, and by the 41st of the Consolidated 
 Chancery Orders, sect. 4. 
 
 II. Compensation is often given to a n. compen- 
 defendant, on the principle that he who defendant, 
 seeks equity must do equity. Thus, if a 
 plaintiff in Equity seeks the aid of the 
 
 Court to enforce his title to land against an 
 innocent person, who has made improve- 
 ments on it, supposing himself to be the 
 absolute owner thereof, that aid will be 
 given only on the terms that the plaintiff 
 shall make a compensation to such innocent 
 person, proportionate to the benefit which 
 will be received from those improvements. 
 (St. § 799 a.) 
 
 III. With regard to penalties and for- ni.Juris- 
 
 " '■ diction to 
 
 feitures for breach of conditions and cove- J^'^f^j 
 nants, there was originally no relief but in IXfor!^ 
 Equity ; and although, by several Statutes, ^"'"™^- 
 relief may now be had at Law in a great 
 
 81* 
 
366 DAMAGES AND COMPENSATION. 
 
 cl'/viii "^*'''®ty °^ cases, yet the original jurisdic- 
 — tion in Equity still remains. (St. § 1301 ; 
 Peachey v. Buke of Somerset, 2 Lead. Cas. 
 Eq. 2d ed. 895 et seq.) 
 Where such Where a penalty or forfeiture appears to 
 afforded. have been inserted merely to secure the per- 
 formance of some act, or the enjoyment of 
 some right or benefit, Equity regards the 
 performance of such act, or the enjoyment 
 of such right or benefit, as the substantial 
 object of the party interested therein ; and 
 if a compensation can be made for the non- 
 performance or want of enjoyment thereof, 
 it will relieve against the penalty or forfeit- 
 ure, by simply decreeing a compensation in 
 lieu of the same, proportionate to the dam- 
 age really sustained. (See St. § 1314, 1320.) 
 Amount of If » Compensation can' be made, and the 
 tionln^lSch penalty is to secure the mere payment of a 
 
 cases. .11 I 1. 1 
 
 sum of money, the party will be relieved 
 on paying the principal and interest. If it 
 is to secure the performance of some other 
 act, the Court will ascertain the amount 
 of damages, and grant relief on payment 
 thereof. (St. § 1314.) 
 Such relief Although it may be urged that, in such 
 grantel. cases as these, it was the folly of the party 
 to make such a stipulation, yet the folly of 
 
DAMAGES AND COMPENSATION. 367 
 
 one man cannot authorize the other to com- ^"^".111. 
 
 Cap. VIII. 
 
 mit an act of gross oppression, or oblige the — 
 former to suffer a loss •wholly dispropor- 
 tionate to the injury received. (St. § 1316.) 
 And, although, in some cases, from peculiar 
 circumstances, which cannot be taken into 
 account, the compensation awarded may 
 not amount to an adequate compensation, 
 yet that is no solid objection against the 
 interference of Courts of Equity : for, a 
 great injury is always prevented by such 
 interference; whereas the. mischief caused 
 thereby is only occasional; and all general 
 rules must work occasional mischiefs. (St. 
 § 1316, note.) 
 
 A stipulation, that if instalments be not 
 punctually paid, the whole sum ehall be 
 payable at once, is not to be deemed of the 
 nature of a penalty. (Sterne v. Beck, 1 D. 
 J. & S. J. 525.) 
 
 IV. Courts of Equity will not relieve iv. No re- 
 
 „ ,. . , . , 1 . , lief against 
 
 in cases of liquidated damages, which occur liquidated 
 
 ^ damages, 
 
 where the j)arties have agreed that in case ^^^'IJeaii'^^ 
 one party shall do or omit a certain act, the ™''''- 
 other party shall receive a certain sum, as 
 the just amount of the damage sustained by 
 such act or omission, and where the sum so 
 agreed to be paid is not grossly dispropor- 
 
368 DAMAGES AND COMPENSATION. 
 
 Ca™' viii tionate to the nature or extent of the injury. 
 If the sum is so disproportionate, and it is 
 in reality penal, although it may assume the 
 disguise of liquidated damages, the Court 
 of Chancery will treat it as a penalty, and 
 relieve against it accordingly. (St. § 1318.) 
 
 V. Where V. In the case of a breach of a covenant 
 
 relief is 
 
 granted as to pay rent. Equity will relieve, even where 
 orcondi-"' *^® term is gone at Law by reason of the 
 *"'"• landlord's entry by virtue of a clause of re- 
 
 entry; for that is deemed to be a mere 
 security for the payment of the rent. (St. 
 § 1315, and note to 1323.) But no relief 
 will be granted in Equity in case of forfeit- 
 ure for the breach of any covenant other 
 than a covenant to pay rent, unless on the 
 grouhd.of accident, mistake, or fraud; for 
 it has been considered that even where the 
 damages are capable of being ascertained, 
 the jurisdiction of Equity in giving relief is 
 a dangerous jurisdiction, and rarely works 
 a real compensation. (St. § 1320 — 1326; 
 Gregory v. Wilson, 9 Hare, 689. The mar- 
 ginal note, as to "accidental" neglect, ap- 
 pears to be wrong.) (a) 
 
 (a) See the stat. 22 & 23 Viet. o. 35, sa. 4—6, and 23 
 & 24 Viet. 0. 126, g. 2, as to relief against forfeiture for 
 breaoh of a covenant or condition to insure. 
 
DAMAGES AND COMPENSATION. 369 
 
 VI. And Equity will not mitigate any (J'p-yjjj 
 penalty or forfeiture imposed by Statute; vi.EeUef 
 for that would be in contravention of the against" * 
 direct expression of the legislative will. (St. penalties or 
 
 forfeitures. 
 
 § 1326.) 
 
 VII. On the other hand, it is a uniform vii. Apen- 
 
 alty or ioi- 
 
 rule in Equity never to enforce either a feiture 
 
 ■^ "^ never en- 
 
 penalty or forfeiture. Therefore Courts of foro^a. 
 Equity will never aid in the divesting of an 
 estate, for a breach of a covenant, on a con- 
 dition subsequent. (St. § 1319 ; and on the 
 subject of enforcing a penalty, see Thompson 
 V. Hudson, L. E. 2 Eq. Gas. 612 : 2 Ch. Ap. 
 255.) 
 
( 370 ) 
 
 CHAPTEE IX. 
 
 or ELECTION. 
 
 Tit. III.: Election is the choosinff between two 
 
 Cap. IX. 
 
 rights, by a person who derives one of them 
 
 Definition. . .,.,.. 
 
 under an instrument in which a clear inten- 
 tion appears that he should not enjoy both. 
 Where eiec- The instances in which Courts of Law 
 
 tiou arises 
 
 at law. have put a person to his election, are cases 
 of title which are technically incapable of 
 simultaneous assertion, by reason of their 
 inconsistency; as in the case of a contem- 
 poraneous estate for life and in tail in the 
 same land, or a claim of a tenant under and 
 against his landlord ; or a claim to dower 
 both in the land taken and the land given 
 in exchange. 
 
 Where eiec- The doctrine of election arises in Equity, 
 
 tion arises ^ "^ 
 
 in equity, jn cases where a grantor, or, more commonly, 
 a testator, gives away, either knowingly, or 
 by mistake, that in which he has no interest, 
 or the whole of that in which another person 
 
ELECTION. 371 
 
 besides himself has an interest, and in the tit. iii. 
 
 ' Cap. IX. 
 
 same instrument makes a gift to the owner — 
 of the property so given away, or to the 
 person entitled to such interest. In such 
 cases the owner of such property, or the 
 person entitled to such interest, cannot both 
 take the gift and retain his own property or 
 interest; but if he takes the gift, he must 
 resign his own property or interest. On the 
 other hand, if he elects to hold his own 
 property or interest, or, as the phrase is, if 
 he elects against the instrument, he cannot 
 have the gift ; or at least he cannot have the 
 entire gift without compensating the party 
 whom he has disappointed by electing to 
 take his own property. Equity, in not 
 suffering the disposition by which such gift 
 is made to enure to the benefit of the person 
 so electing against the instrument, will not 
 render that disposition inoperative, but will 
 make it the means of effectuating that inten- 
 tion of the author of the instrument which 
 such person has frustrated by so electing to 
 retain his own property or interest: for 
 Equity will treat such gift, or at least a part 
 of it, as a trust in the donee or devisee, the 
 person so electing, for the benefit of the 
 party disappointed by such person's refusing 
 
372 ELECTION. 
 
 cIp nc *° Si^® ^P '^'^ °^° property or interest. 
 — (See St. § 1077, note, and 1081—1084, 1086, 
 1088. 1089, 1093; 2 Sp. 586, 587, 588, 601 
 — 604; Noys v. Mordaunt, and Streatfield 
 V. Streatfield, 1 Lead. Cas. Eq. 2d ed. 271 
 et seq.; Swan v. Holmes, 19 Beav. 471; 
 Wintour v. aifton, 21 Beav. 447, 8 D. M. 
 & G. 641 ; Stephens v. Stephens, 3 Drewry, 
 697; Vsticke v. Peters, 4 K. & J. 437; 
 Anderson v. Abbott, 23 Beav. 457; Grosvenor 
 V. Durston, 25 Beav. 97; Fitzsimmons v. 
 Fitzsimmons, 28 Beav. 417; Soneywood v. 
 i?'osfer (No. 2), 30 Beav. 14; Howells v. Jen- 
 Ams, 2 Johns. & H. 706, 1 D. J. & S. 617 ; 
 Whitley v. Whitley, 31 Beav. 173 ; MZZer v. 
 2%Mr5^oorf,33Beav.496.) Indeed, the doctrine 
 of election can never be applied where an 
 election is made contrary to the instrument, 
 unless the interest that would pass by it is of 
 that freely disposable nature that it can be 
 laid hold of to compensate the party who 
 suifers by the exercise of such election against 
 the instrument. Thus, where there is a fund 
 subject to the appointment of a father 
 amongst his children, and the father appoints 
 a part to some of his children, and the other 
 part to persons not objects of the power; any 
 child who is an appointee may both take his 
 
ELECTION. 373 
 
 appointed share and also claim his share of the ^it. m. 
 improperly appointed portion, as in default 
 of appointment. And an appointee, who is 
 also a legatee, is not bound to elect between 
 his legacy and giving effect to a trust en- 
 grafted on the appointment in favor of per- 
 sons not objects of the power, but such trust 
 is void. But if there is a power to appoint 
 to two, and the donee of the power appoints 
 to one only and gives a legacy to the other, 
 he cannot claim the legacy and also dispute 
 the validity of the appointment. (2 Sp. 
 520 ; Be Fowler's Trust, 27 Beav. 362 ; Wool- 
 ridge V. Woolridge, Johnson, 63; Churchill v. 
 Churchill, L. E. 5 Eq. Cas. 44.) 
 
 Prima facie, it is not to be supposed, nor 
 must it be proved by extrinsic evidence, 
 that a testator disposes of that which is not 
 his own, so as to raise a case of election. It 
 must appear on the will itself, by plain de- 
 monstration or by necessary implication. 
 (2 Sp. 592, 593, 595 ; Wintour v. Clifton, 21 
 Beav. 447 ; 8 D. M. & G. 641 ; Miller v. 
 Thurgood, 33 Beav. 496.) 
 
 The doctrine of election applies even 
 where, in a will not within the Wills Act, 
 1 Vict. c. 26, a devise of an estate is made 
 to the testator's heir, and the heir, according 
 
 32 
 
374 ELECTION. 
 
 Cap 1x1 ^° ^^^ ^^^ Tule, takes such estate by descent 
 
 and not by purchase, and, by the same will, 
 
 the testator devises to another person an 
 estate belonging to the heir, over which the 
 testator had no disposing power. (St. § 
 1094; 2 Sp. 589; Schroder v. Schroder, 1 
 Kay, 578 ; Mance v. Twrewhit, 2 Johns. & H. 
 1062.) And the doctrine is equally applied 
 to all interests, whether immediate or re- 
 mote, vested or contingent, of value or of 
 no value, and whether in real or personal 
 estate. (St. § 1096; 2 Sp. 588.) 
 
 The same doctrine of election also arises 
 in cases where it was apparently a testator's 
 intention to dispose of all the property he 
 might have at the time of his death, and 
 the heir, who is a devisee under the will, 
 claims property, which was purchased sub- 
 sequently to the will, and which conse- 
 quently, under the old law, did not pass by 
 the will, but was intended to pass to another 
 person under the general words of the will. 
 (St. § 1094; Schroder v. Schroder, 1 Kay, 
 578.) 
 
 According to the preponderance of autho- 
 rity and principle, a person electing against 
 a will does not forfeit the whole of the ben- 
 efit intended for him, where the value of 
 
ELECTION. 37,5 
 
 tho gift exceeds that of his own property or Jj^- ™' 
 interest; but he is only obliged to compen- 
 sate in value the claimant whom he has 
 disappointed by his refusing to give up his 
 own property or interest. (St; § 1085 ; 2 
 Sp. 601—604.) For, a Court of Equity, in- 
 terfering to control his legal rights for the 
 purpose of executing the intention of the / 
 testator, is justified in its interference so 
 far only as that purpose requires. (St. § 
 1085, note.) 
 A person may decline one benefit given Election 
 
 as to one 
 
 him by a will, such as a legacy charged with benefit. 
 a portion, without being precluded from 
 taking another benefit by the same will; 
 unless it is fairly inferable, from the nature 
 of the different benefits, that he should 
 either take all or reject all. (St. § 1081 ; 
 see 2 Sp. 591.) 
 
 Election may also arise where a person Election 
 
 . . in the case 
 
 Glaims both under and in opposition to a of a settle- 
 ment. 
 
 settlement. (^Anderson v. Abbott, 23 Beav. 
 457 ; Mosley v. Ward, 29 Beav. 407 j Brown 
 V. Brown, L. E. 2 Eq. Cas. 485.) 
 
 The party is not bound to make an elec- Election 
 
 need not be 
 
 tion till all the circumstances are known, made in 
 
 ignorance 
 
 And if he should make a choice in igno- ofcircum- 
 ranee of the real state of the funds, or under 
 
376 ELECTION. 
 
 Cap S ^ misconception of the extent of the claims 
 
 on the fund elected by him, it will not be 
 
 *• conclusive on him. And he is entitled, in 
 
 order to make an election, to maintain a 
 
 bill in equity for a discovery, and to have 
 
 all the accounts taken, to ascertain the real 
 
 state of the fund. (St. § 1098 ; 2 Sp. 598; 
 
 \ Wintour v. Clifton, 21 Beav. 67.) 
 
 Election An election may be presumed from a long 
 
 presumed. ./ x o 
 
 acquiescence or from other circumstances. 
 (St. § 1097; 2 Sp. 598—600; Worthington v. 
 Wiginton, 20 Beav. 67.) Eemaining in pos- 
 session of two estates held under titles not 
 consistent with each other, aflFords no con- 
 clusive proof of the kind. (^Spread v. Mor- 
 gan, 11 H. L. Cas. 588.) 
 
 The doctrine of election is not of the 
 nature of a positive rule of law which a per- 
 son is bound to know. And therefore in 
 order to infer an election, it is necessary to 
 show that the person who ought to elect 
 was aware of the doctrine. (^Spread v. Mor- 
 gan, 11 H. L. Cas. 588.) 
 No election The doctrine of election is not applied in 
 
 in the case /. i. m 
 
 of creditors, the case of Creditors. They may take the 
 benefit of a devise for payment of debts, and 
 also enforce their legal claim against other 
 funds disposed of by the will ; for a creditor 
 
ELECTION. 377 
 
 claims not as a mere volunteer, but for a ^i^ in- 
 valuable consideration, and ex debito justitice. 
 (St. § 1092 ; 2 Sp. 592.) 
 
 "Where a testator gives a much larger prOp- Gift under 
 erty to one child, under the mistaken im- 
 pression that such child did not take under 
 the testator's marriage settlement, he is not 
 bound to elect between his interest under 
 the settlement, and the gift by will. (^Box 
 V. Barrett, L. E. 3 Eq. Cas. 244.) 
 
 Where the person bound to elect labors Disabiuty. 
 under any disability, as infancy or cover- 
 ture, the Court will consider whether it will 
 be most beneficial for such person to take 
 under or against the will or deed, and will 
 decree accordingly. (2 Sp. 587.) 
 
 32* 
 
( 378 ) 
 
 CHAPTER X. 
 
 OF SATISFACTION. 
 
 Tit. hi. Satisfaction may be defined to be, the 
 
 Cap. X. •' ' 
 
 „ rrr making of a donation with the express or 
 
 Definition. " ^ 
 
 implied intention that it shall be taken as 
 an extinguishment of some claim which tho 
 donee has upon the donor. (See St. § 1099 
 —1101, 1106; Ex parte Pye, 2 Lead. Cas. 
 Eq, 2d ed. 303 et seq. ; Samuel v. Ward, 22 
 Beav. 347 ; and infra.') 
 Where Equitable questions of satisfaction usu- 
 
 satisfaction 
 
 arises. ally arise in three classes of cases : 
 
 I. In cases of portions secured by a mar- 
 riage settlement. 
 
 II. In cases of portions given by a will, 
 and an advancement of the donee after- 
 wards in the testator's lifetime. 
 
 III. In cases of legacies to creditors. (St. 
 § 1109.) 
 
 Satisfaction In all these classes of cases, where the 
 
 resting on 
 
 presump- satisfaction is a matter of presumption, that 
 
 tion may be r tr i 
 
 rebutted, presumption may be rebutted, either by 
 intrinsic evidence derived from the will 
 
SATISFACTION. 379 
 
 itself, or by extrinsic evidence, as by dccla- Tra^ ™- 
 rations of the testator or written papers. 
 (St. § 1102 ; 2.Sp. 441—455.) 
 
 I. Where a portion or provision is secured i. As to 
 
 portions 
 
 to a child by a marriage settlement or other- Se^^^^ 
 wise, and the parent or person standing in 
 loco parentis — that is, a person meaning to 
 stand in the place of a parent as regards 
 providing for a relation's child — afterwards 
 by will gives the same child a legacy, 
 whether particular or residuary, without 
 expressly declaring it to be in satisfaction 
 of such portion or provision, in such case, 
 if the legacy is substantially the same in its 
 value, in its nature, in time of payment, in 
 certainty, and in benefit, with the portion or 
 provision, and if it is not given for a dif- 
 ferent purpose, it will, in the absence of 
 evidence to the contrary, be deemed a full 
 satisfaction, as Courts of Equity now incline 
 against double portions. If the legacy is 
 less in amount than the portion or provision, 
 or if it is payable at a difierent period, then 
 (looking to the weight of authority) it may 
 be deemed a satisfaction pro tanto, or in 
 full, according to the circumstances. (St. § 
 1103, 1104,. 1109, 1110 ; 2 Sp. 427—430, 432, 
 433, 438— 440 J Zady E. Tliynne v. Earl of 
 
380 SATISFACTION. 
 
 Cap™' G^^engall, 2 Ho. of Lords, 153; Pinchin v. 
 Simms, 30 Beav. 119 ; Charlton v. West, 30 
 Beav. 124; Coventry v. Chichester, 2 Hem. & 
 Mil. 149; 2 D. J. & S. 336; S. C. Nom. Chi- 
 Chester v. Coventry, L. E. 2 Ap. ser. (H. L.) 
 72 ; Campbell v. Campbell, L. E. 1 Eq. Cas. 
 383; McCarogher v. Whieldon, L. E. 3 Eq. 
 Cas. 236.) 
 
 In the case of a provision by will, fol- 
 lowed by a provision by deed, the first 
 being revocable, there is no difficulty in the 
 way of the second provision taking effect 
 in lieu of the first; and no election, on the 
 part of the person to be benefited, is re- 
 quired. And if the second provision is con- 
 strued to be substitutional, it is properly 
 termed an ademption. 
 
 On the other hand, in the case of a pro- 
 vision by deed, followed by a provision by 
 will, the first being not revocable, and actual 
 rights being conferred thereby, it is more 
 natural in one respect, to regard the second 
 provision as additional, rather than as substi- 
 tutional, and the application of the presump- 
 tion against double portions is consequently 
 more difficult; and indeed no substitutional 
 effect can be given to the will, except by 
 the election of the person intended to be 
 
SATISFACTION. 381 
 
 benefited. {Lord Chichester v. Coventry, L. '^^p^S- 
 E. 2 Ap. ser. (H. L.) 72.) -^ 
 
 Where, by a covenant to take effect on the 
 death of the settlor, a portion ia settled on 
 the husband for life, and then on his wife 
 and children, and ita absolute gift of other 
 property is afterwards made by the settlor 
 by will in favor of the husband, it may be 
 a satisfaction of the husband's life interest, 
 under the settlement, but not of the interest 
 of the wife and children. {McCarogher -v. 
 WMeldon, L. E. 3 Eq. Cas. 236.) 
 
 II. Where a parent or other person stand- ii. As to 
 
 portions left 
 
 ing in loco parentis bequeaths a legacy, bywmtoa 
 whether particular or residuary, to a child to 
 whom he stands in that relation, and then by 
 an act inter vivos, makes a provision for the 
 same child, of equal or greater amount, of 
 equal certainty, and substantially the same 
 in kind and in degree of benefit, without 
 expressing it to be in lieu of the legacy, or 
 for other objects than those for which the 
 legacy was given, in such ease, in the ab- 
 sence of evidence to the contrary, it will be 
 deemed a satisfaction or ademption of the 
 legacy. And if the provision inter vivos is 
 less than the legacy, it will be deemed an 
 ademption ^ro tanto. (St. § 1111 and note, 
 
382 SATISFACTION. 
 
 T"-m- and 1103—1105, 1112, 1113, 1115; 2 Sp. 
 
 Cap. a.. 
 
 — 429, 432—435, 438—440; Mopwood v. Bop- 
 wood, 22 Beav. 488 ; 7 Ho. of Lords, 728 ; 
 Schofield V. Heap, 27 Beav. 93; Beckton v. 
 Barton, 27 Beav. 99; Montefiore v. Quedalla, 
 1 D. P. & J. 93; Watson v. Watson, 33 Beav. 
 575; Phillips v. Phillips, 34 Beav. 19; Daw- 
 son V. Dawson, L. E. 4 Eq. Cas. 504; Nevin 
 V. Drysdale, L. E. 4 Eq. Cas. 517.) 
 
 But a bequest to a daughter is' not 
 
 adeemed by a gift to the husband; nor by 
 
 an advance to her, on her marriage, for her 
 
 outfit. (^Ravenscroft v. Jones, 32 Beav. 669.) 
 
 Noademp- And this doctrine of the constructive 
 
 tion of lega^ 
 
 ciesto ademption of legacies has never been ap- 
 
 strangers. a o ± 
 
 plied to legacies to mere strangers, unless 
 under some peculiar circumstances; as where 
 the legacy is bequeathed for a particular 
 purpose, and a portion is afterwards given 
 by the testator, by an act inter vivos, exactly 
 for the same purpose, and for none other. 
 (St. § 1100, note, 1117, 1118; 2 Sp. 430.) 
 Indeed, in the case of strangers, the onus 
 probandi is upon those who contend that 
 the two provisions are to be considered but 
 as one; whereas in the case of children, the 
 onus probandi is on those who contend for 
 the double provision. (2 Sp. 430.) The 
 
SATISFACTION. 383 
 
 term " strangers" here includes all who ai-e ^r^ m. 
 not legitimate children of the donor or chil- 
 dren to whom he has placed himself in loco 
 parentis. (St. § 1116; 2 Sp. 429.) 
 
 The ground of the distinction would seem Ground of 
 to be, that a legacy by a parent, or by a per- tion. 
 son in loco parentis, is presumed to be in- 
 tended as a portion, and that it may be 
 fairly regarded as the utmost amount that 
 the testator, from a sense of duty, or from 
 parental or quasi parental affection, consid- 
 ered himself able and called upon to spare 
 for the legatee, consistently with the ac- 
 complishment of other necessary purposes; 
 and that if he afterwards advances the same 
 amount to the same child, it is almost cer- 
 tain, or at all events, most likely, that he did 
 so in accomplishment of the same intention 
 of providing for such child to the same 
 extent; especially where the necessity of 
 making a provision has arisen in his life- 
 time, as when the provision is made on the 
 marriage of the child. But in the ease of a 
 legacy to a stranger, the legacy is a mere 
 arbitrary gift, unconnected with considera- 
 tions of duty or parental or quasi parental 
 affection; and there is as much reason, in 
 such cases,. why the te^jtator should . choose 
 
384 SATISFACTION. 
 
 Cap™' *" make an additional gift, as there was for 
 his making the original gift. 
 III. As to III. A legacy given to a creditor, if it is 
 
 legacies to t_ i_ 
 
 creditors, of an amount equal to or greater than the 
 debt, and in other respects equally bene- 
 ficial, will, in general, in the absence of all 
 countervailing circumstances, be deemed to 
 be a satisfaction of the debt, on the prin- 
 ciple that a testator shall be presumed to 
 be just before he is generous. (St. § 1119, 
 1120 ; 2 Sp. 605—607 ; Edmunds v. Zowe, 
 3 K. & J. 318; Shadbolt v. Vanderplank, 
 29 Beav. 405.) But this principle has no 
 application to cases where the testator ex- 
 pressly directs his debts to be paid, and his 
 assets are sufficient to pay both debts and 
 legacies. And the Court leans very strongly 
 against holding the legacy to be a satis- 
 fiaction. Hence the rule is not allowed to 
 prevail where the legacy is of less amount 
 than the debt, even as a satisfaction pro 
 tanto, unless the creditor have assented, in 
 the debtor's lifetime, to such an arrange- 
 ment ; nor where there is a difference in the 
 time of payment of the debt and of the 
 legacy ; nor where they are of a different 
 nature, as to the subject-matter, or as to the 
 interest therein ; nor where a particular 
 
SATISFACTION. 385 
 
 motive is assigned for the gift ; nor where Tm^ ™. 
 the debt is contracted subsequently to the 
 will ; nor where the legacy is contingent or 
 uncertain; nor where the bequest is of a 
 residue ; nor where the debt is a negotiable 
 security ; nor where the debt is on an open 
 and running account, so that the testator 
 might not know whether he owed anything. 
 And as to a debt strictly so called, there is 
 no difference whether it is a debt due to a 
 stranger or to a wife or a child. (St. § 1103, 
 1122 ; 2 Sp. 605—608 • Jefferies v. Michell, 
 20 Beav. 15 ; Eassell v. Hawkins, 4 Drew. 
 468 ; Cole V. Willard, 25 Beav. 568 ; Bam- 
 mond V. Smith, 33 Beav. 452.) 
 
 TV. On the other hand, where a creditor iv. As to 
 
 legacies to 
 
 leaves a legacy to his debtor, and either debtors. 
 takes no notice of the debt, or leaves his 
 intention doubtful. Courts of Equity will 
 not deem the legacy as either necessarily or 
 prima facie manifesting an intention to re- 
 lease or extinguish the debt ; but they will 
 require some evidence, either on the face 
 of the will, or aliunde, to establish such an 
 intention. (St. § 1123.) For, if the legacy 
 is less than the debt, it would clearly be a 
 positive injury to the creditor to construe 
 the legacy a release of the debt ; and even if 
 83 
 
386 SATISFACTION. 
 
 TiT. m. the legacy is more than the debt, it does not 
 — follow that because the testator has mani- 
 fested his bounty towards the debtor in that 
 respect, he intends the debtor to Lave an- 
 other benefit which has no necessary con- 
 nection with the former. Where the testator 
 does not mention the debt, but gives the 
 debtor a legacy of equal or greater amount, 
 he thereby benefits the debtor to at least the 
 same extent, by giving him the means of 
 paying the debt, as if he had directly for- 
 given the debt, but had given the debtor 
 nothing, or nothing but the overplus; and 
 his reason for thus giving the debtor the 
 means of paying the debt, without alluding 
 to the debt, may have been one of kind 
 consideration towards the debtor, namely, 
 in order that none but the executor might 
 be aware of the debt. 
 
 V. Annuity. V- Where an annuity to the separate use 
 of a married woman is charged on an estate, 
 the gift of an annuity to her generally, and 
 charged upon property of a diflferent nature, 
 though to the same amount and payable on 
 the same days, is not a satisfaction. (2 Sp. 
 609.) And where a person executes a deed 
 by which ho gives annuities to certain per- 
 sons, and then executes another deed by 
 
SATISFACTION. 387 
 
 which he gives other annuities to those cS^?' 
 persons, there is no presumption that the 
 latter were intended to be a substitute for 
 the former, especially where the annuities 
 given by the second deed are of less amount, 
 or the first deed contains a power of revoca- 
 tion which is not exercised by the second 
 deed. (^Palmer v. JSfewell, 20 Beav. 32 ; 8 D. 
 M. & G. 74.) So where there is a covenant covenant to 
 on marriage to settle specific lands, it will 
 not ordinarily be satisfied by suffering other 
 lands of equal value to descend. (2 Sp. 610.) 
 And an appointment of a sum by will is not 
 a satisfaction of a covenant to bequeath a 
 like sura. (^Graham v. Wickham (No. 1), 31 
 Beav. 447; 1 D. J. & S. 474.) 
 
( 388 ) 
 
 CHAPTEE XI. 
 
 OF PARTITION; OF SETTLEMENT OF BOTINDA- 
 KIES; AND OF ASSIGNMENT OP DOWER. 
 
 Section I. 
 Of Partition. 
 Tit. m. The mode in which a partition is effected, 
 
 Cap. XI. , „ ..,.,„, 
 
 Sec. I. IS by first ascertaining the rights of the sev- 
 Modeof eral parties interested, and then issuinff a 
 
 partition. * ' " 
 
 commission to make the partition; and on 
 the return of the commission and confirma- 
 tion of the return by the Court, the partition 
 is finally completed by mutual conveyances 
 of the lots made to the several parties. (St. 
 § 650; and on this subject see Agar v. Fair- 
 fax, 2 Lead. Cas. Eq. 2d ed. 374 et seq.) 
 Formerly, if the conveyances could not be 
 executed on account of infancy, or on ac- 
 count of an executory interest, the decree 
 could only put the parties in possession, and 
 secure them in the enjoyment of the parts 
 allotted to them, until conveyances could be 
 
PARTITION. 389 
 
 made. (St. § 652.) But by the stat. 13 & 14 tit. in. 
 
 ^ " J •/ Cap. XI. 
 
 Vict. c. 60; s. 30, in a decree for partition ^^±J- 
 of lands, it shall be lawful for the Court to 
 declare that any of the parties to the suit 
 wherein such decree is made are trustees of 
 such lands or any part thereof, or to declare 
 concerning the interests of unborn persons 
 who might claim under any party to the suit; 
 or under the will or voluntary settlement of 
 any person deceased, who was during his 
 lifetime a party to the contract or transac- 
 tions concerning which such decree is made, 
 that such interests of unborn persons are 
 the interests of persons who, upon coming 
 into existence, would be trustees within the 
 meaning of the Act; and thereupon it shall 
 be lawful for the Lord Chancellor, or the 
 Court of Chancery, as the case may be, to 
 make such order or orders as to the estates, 
 rights, and interests of such persons, born 
 or unborn, as the Court or the Lord Chan- 
 cellor might, under the provisions of the 
 Act, make concerning the estates, rights, 
 and interests of trustees born or unborn. 
 
 As a partition is completed by mutual Title must 
 conveyances, it is essential to show a title ; 
 and if there is anything suspicious in the 
 plaintiff's title, the Court will leave him to 
 
 33* 
 
390 
 
 PARTITION. 
 
 Tit. III. 
 Cap. XI. 
 Sec. I. 
 
 Partition by 
 or against 
 tenauts who 
 have lim- 
 ited in- 
 terests. 
 
 Equitable 
 adjust- 
 ments. 
 
 Law, unless it is a case of equitable title. 
 (St. § 653.) 
 
 The Court will decree a partition even in 
 a suit by or against persons who are only 
 tenants for life or years; and the decree 
 will be binding on all whom they virtually 
 represent, but not on other persons. Thus, 
 a decree in a suit by or against a tenant for 
 life, will be binding on the remainderman 
 who is not in esse at the time, on the ground 
 of virtual representation, if the Court is of 
 opinion that it will be for the benefit of such 
 remainderman that the agreement should 
 be carried into effect, either as it stands, 
 or with such variations as the Court may 
 think proper. (St. § 656, 656 a.) 
 
 The Court will frequently decree a pecu- 
 niary compensation to one, in order to make 
 up his share to its proper value, where the 
 estate cannot conveniently be divided into 
 equal parts. (St. § 654.) And instead of 
 dividing each of several distinct estates, the 
 whole of one estate is frequently allotted to 
 one person, and the whole of another estate 
 to another person, and a compensation is di- 
 rected to be made to the person to whom the 
 less valuable estate is allotted. (St. § 557.) 
 So, to one who has made improvements on 
 
BOUNDARIES. 391 
 
 the estate, the property on which the im- tit. m. 
 provements have been made will be assigned, sec^. 
 or a compensation will be given him. And 
 care will be taken to assign to the parties 
 such portions of the estate as will best accom- 
 modate them ; and the Court will act accord- 
 ing to its own notions of general justice and 
 equity between the parties, and will, if nec- 
 essary for that purpose, direct a distinct 
 partition of each of several portions of the 
 estate in which derivative alienees have dis- 
 tinct interests, in order to protect those in- 
 terests ; or it will give other special direc- 
 tions to the commissioners, and nominate 
 the commissioners, instead of allowing them 
 to be nominated by the parties. (St. § 655, 
 656 b, c.) 
 
 Section II. 
 
 Of the Settlement of Boundaries. 
 
 The general rule now observed by the seo. ii. 
 Court of Chancery is, not to exercise juris- General 
 diction in settling boundaries on the mere 
 ground that they are a subject of contro- 
 versy, but to require that there should be 
 
 rule. 
 
392 
 
 BOUNDAKIES. 
 
 Tit. III. 
 Cap. XI. 
 Sec. II. 
 
 Confusion 
 
 through 
 
 fraud. 
 
 Confusion 
 through 
 fault of a 
 
 Sarty whose 
 uly it was 
 to preserve 
 the bound- 
 aries. 
 
 some superadded equity. (St. § 615 — 623; 
 and on this subject see Wake v. Conyers, 2 
 Lead. Cas. Eq. 2d ed. 362 et seq.) 
 
 Thus, if the confusion of boundaries has 
 been occasioned by fraud, that will consti- 
 tute a sufficient ground for the interference 
 of the Court. And if the fraud is established, 
 the Court will by commission ascertain the 
 boundaries, if practicable ; and if that is not 
 practicable, it will do justice between the 
 parties by assigning reasonable boundaries 
 or setting out lands of equal value. (St. § 
 619, 623.) 
 
 In the next place, there will be a sufficient 
 ground for the jurisdiction, if the confusion 
 has arisen by the negligence or misconduct 
 of a person standing in such a relation to 
 the opposite party as imposed upon him an 
 obligation to preserve and protect the boun- 
 daries. Thus, a tenant or a copyholder is 
 under an implied obligation to preserve 
 them; and if, through his default, there 
 arises a confusion of boundaries, the Court 
 will interfere as against such tenant or copy- 
 holder to ascertain and fix them. But even 
 in these cases, it is indispensable to aver 
 and to establish by proofs, that the boun- 
 daries cannot be found without being ascer- 
 
DOWER. 393 
 
 tained under the order of the Court. (St. tit. m. 
 § 620.) ^^'^■ 
 
 A bill will also lie when it will prevent Multiplicity 
 
 of suits. 
 
 multiplicity of suits. (St. § 621.) 
 
 Section III. 
 
 Of the Assignment of Dower. 
 
 Courts of Equity will now exercise a con- seo. hi. 
 current jurisdiction with Courts of Law in 
 the assignment of dower in all cases, after 
 the title of the widow, if disputed, has been 
 established. There is no difficulty in main- 
 taining this jurisdiction, as a case can scarcely 
 be supposed in which the widow may not 
 either want a discovery of the title-deeds, 
 or of dowable lands, or some other kind of 
 discovery, or some assistance which it is or 
 was the peculiar province of the Court of 
 Chancery to afford. (St. § 624—631; 2 
 Lead. Cas. Eq. 2d ed. 402, 403 ; Lead. Cas. 
 Eeal Prop. 2d ed. p. 55.) 
 
TITLE IV. 
 
 5rit«pt:tf6J of JBiBsiilitS- 
 
 ( 395 ) 
 
( 396 ) 
 
 CHAPTEE I. 
 
 OF PROTECTION FEOM LITIGATION OR INJURY, 
 AFFORDED BY THE CANCELLING, DELIVER- 
 ING UP, AND SECURING OF DOCUMENTS. 
 
 Tit. IV. The Court of Chancery frequently cancels, 
 
 Cap. I. 
 
 — or rescinds, or orders the delivery up of in. 
 
 Voidable ' ■' ^ 
 
 and void struments which have answered the end for 
 
 instruments 
 
 wMchifave "^^lich they were created, or instruments 
 tS^pur- which are voidable, or instruments which 
 are in reality void and yet apparently valid. 
 This is done upon the principle, as it is 
 technically called, quia timet, that is, for fear 
 that such instruments may be vexatiously or 
 injuriously used, when the evidence to im- 
 peach them may be lost or diminished, or 
 for fear that they may throw a cloud or sus- 
 picion over the plaintiff's title and interests. 
 (St. § 694, 698, 699, 700, 705; Cooper v. Joel, 
 
 27 Beav. 313; W v. B , and B ' 
 
 V. W , 32 Beav. 574; Spinks v. Cohen, 
 
 2 Hem. & Mil. 354.) 
 -But where the illegality of the instrument 
 
CANCELLIN& OP DOCUMENTS, ETC. 397 
 
 appears oa the face of it, so that its nullity gap^iT' 
 can admit of no doubt, Eq[uity will not in- 
 terfere ; because in that case, the ground for 
 interference does not exist. (St. § 700 a.) 
 
 Courts of Equity will generally cancel or where an 
 
 ^ •' ° •' instrument 
 
 rescind instruments, or order them to be is voidable 
 
 ' on account 
 
 delivered up, where there is an actual or °„^"oa8e 
 constructive fraud, and the plaintiff has not contrMte"^ 
 participated therein, or is not in pari delicto ; secufSs."^ 
 or where there is an offence against public > 
 
 policy, and the plaintiff has participated 
 therein, and is in pari delicto, but yet public 
 policy would be more promoted by assisting 
 the plaintiff, than by refusing to assist him. 
 
 (St. § 298, 695 ; W v. B , and B 
 
 V. W , 32 Beav. 574.) 
 
 Where both parties are concerned in an 
 illegal act, it does not always follow that 
 they stand in pari delicto; for one party 
 may act under circumstances of oppression, 
 imposition, hardship, undue influence, or 
 great inequality of condition or agej so 
 that his guilt may be far less in degree 
 than that of his associate in the offence. 
 (St. § 300.) 
 
 In cases of usury, (a) if the lender comes 
 
 (a) See supra, p. 24, note. 
 34 
 
398 CANCELLING, DELIVERING UP, 
 
 Tit. 
 Cap, 
 
 ly- into a Court of Equity, seeking to enforce 
 
 the contract, the Court will refuse to give 
 
 any assistance, and will repudiate the con- 
 tract. But, on the other hand, if the bor- 
 rower comes into a Court of Equity, seek- 
 ing relief against the contract, the Court 
 will interfere, although only on the terms 
 that the plaintiff will do equity, by paying 
 the defendant what is really due to him,, 
 deducting the usurious interest. (St. § 301.) 
 And if the borrower has paid the money, 
 Courts of Equity, and indeed Courts of Law 
 also, will assist him to recover back the ex- 
 cess beyond principal and lawful interest ; 
 for the maxim volenti non fit injuria, does 
 not apply to the borrower, since he cannot 
 be said to have voluntarily paid the usurious 
 interest ; and as to being a participator in 
 the offence, he was compelled to submit to 
 the terms which oppression and his neces- 
 sities imposed on him. (St. § 302.) 
 
 But relief is not granted where both par- 
 ties are truly in pari delicto; for the maxim 
 is, that in pari delicto, potior est conditio 
 defendentis et possidentis. (St. § 298, 299.) 
 An exception occurs, however, as already 
 stated, where public policy would thereby 
 be promoted; as in the case of a gaming 
 
AND SBCURINO OF DOCUMENTS. 399 
 
 security, which is void, and money paid on '^Jl^^J' 
 it may be recovered back. (St. § 303, 304.) 
 
 The Court will not interfere between a Voluntary 
 
 deed. 
 
 voluntary donor and donee, either by causing 
 a voluntary deed to be delivered up to the 
 donor, or by decreeing specific performance 
 of it in favor of the donee. And a pur- 
 chaser for value of an interest in land from 
 a voluntary donor, cannot require the vol- 
 untary deed or agreement to be delivered 
 up to him to be cancelled. (De Hoghton v. 
 Money, L. E..1 Bq. Cas. 154.)^^//3-e^i^ ^fi 
 Forged instruments may be decreed to be Forged in- 
 
 ° struments. 
 
 delivered up, without any prior trjal, on^ 
 the point of forgery. (St. § 701.) 
 
 Assistance will often be given even in re- Delivery up 
 
 - of unexcep- 
 
 eard to unexceptionable instruments, ihe tionaUe 
 
 ^ ■'■ instruments 
 
 Court of Chancery will order them to be '"ilJf'J, 
 delivered up to the party entitled to theiJi, t*^™- 
 if his title to the property to which they 
 relate is not disputed. But where the title 
 to the possession of deeds and other writings 
 depends on the validity of the title of the 
 party to the property to which they relate, 
 and he is not in possession of the property, 
 and the evidence of his title to it is in his 
 own power, or it does not depend on the 
 production of the deeds or writings of which 
 
400 CANCELLING OF DOCUMENTS, ETC. 
 
 capT' ^® prays the delivery; in such case he must 
 first establish his title to the property, be- 
 fore he can come into a Court of Equity 
 for a delivery of the deeds. (St. § 703.) 
 Inspection Again, persons having rights and inter- 
 
 and copies 
 
 of deeds. ests in real estate are entitled to come into 
 Chancery for the purpose of having an in- 
 spection and copies of the deeds under 
 which they claim title. (St. § 704.) 
 
 Securing of And remaindermen and reversioners, and 
 
 documents. 
 
 other persons having limited or nltenor in- 
 terests in real estate, have a right, in many, 
 cases, to have the title-deeds secured or 
 brought into Chancery for preservation. 
 But this will not be directed, unless it clear- 
 ly appears that there is danger of a loss or 
 destruction of the instruments in the hands 
 of the persons possessing them; and also 
 that the interest of the plaintiff is not too 
 contingent or too remote to warrant the 
 proceeding. (St. § 704.) 
 Delivery up Bonds and notes given by a relative have 
 
 of secu- o "^ 
 
 been ordered to be delivered up by execu- 
 tors or administrators, where it has been 
 fairly inferable, from the conduct of the 
 deceased, that he did not intend that any 
 use should be made of the securities. (See 
 St. § 705 a— 706 a.) 
 
 rities. 
 
-( 401 ) 
 
 CHAPTEE II. 
 
 OF PROTECTION FROM LITIGATION RESPECTING 
 THE PKOPERTT OF ANOTHER, BY MEANS OP 
 INTERPLEADER. 
 
 There was a process of interpleader at tit. iv. 
 Common Law, but it had a very narrow „ — 
 
 ■^ Common 
 
 range of application (St. § 801) j and prior ^^^ process. 
 to the statute 1 & 2 Will. IV. c. 58, it fell 
 into entire disuse (St. § 805) ; and although 
 the application of the legal remedy of inter- 
 pleader has been greatly extended, yet the 
 jurisdiction in Equity seems to have been 
 left substantially on the old foundation. (St. 
 § 823.) 
 
 A bill of interpleader is one which is Definition 
 
 '■ of a bill of 
 
 filed by a person from whom two or more inter- 
 
 •^ ^ pleader. 
 
 other persons, whose titles are connected (by 
 reason of the one being derived from the 
 other, or of both being derived from a 
 common source), and whose rights he cannot 
 readily determine, have claimed the same 
 thing, wherein he himself claims no interest, 
 
 84* 
 
402 INTBRPIiBADBE. 
 
 Tit. IV. and the object of which is to compel them to 
 — contest the matter between themselves, with- 
 out involving him in any vexatious litiga- 
 tion respecting it. (See St. § 806, and notes, 
 and 807, 810—816, 820, 824; Jones v. Thomas, 
 2 Sm. & Gif. 186.) 
 uiustra- Thus, where a tenant is liable to pay rent, 
 
 tionsinthe , . . ,.,. 
 
 caseof land- but there are several persons claiming title 
 
 lord and 
 
 tenant. to it, in privity of contract or tenure, he is 
 entitled to file a bill of interpleader to 
 compel them to ascertain to whom the rent 
 is payable. (St. § 811.) But if a claim to 
 rent is set up by a mere stranger, under a 
 title paramount, and not in privity of con- 
 tract or tenure, the tenant cannot compel his 
 landlord to interplead with such a stranger; 
 for the demand made by the latter is not a 
 demand of the same nature or in the same 
 right : the stranger cannot demand the rent, 
 as such, but if he succeeds in an ejectment, 
 he has only a right to damages for use and 
 occupation; whereas the landlord claims the 
 rent, as such, in privity of contract, tenure, 
 and title. (St. § 812.) Besides, the tenant 
 is under a contract to pay the rent to his 
 landlord. (St. § 817 b.) (On this subject, see 
 Cook V. Earl of Bosslyn, 1 Gif. 167.) 
 
 between the Where the title of the one claimant is not 
 
INTEBPLEADEB. 403 
 
 derived from that of the other, nor are they. '^'J^^J- 
 both derived from the same common source, titieToF 
 but they are independent of and adverse to d^^nte. 
 each other, the party holding the property 
 must defend himself as well as he can at 
 I/aw ; for if a Court of Equity were to exer- 
 cise jurisdiction in such cases, it would be 
 asserting the right to try mere legal titles, 
 on a controversy between different parties, 
 where there is no privity of contract be- 
 tween them and the third person who calls 
 for an interpleader. (St. § 816, 820.) 
 
 Property put into the hands of a private principal 
 agent by his principal, or received by an *^^° ' 
 agent for his principal, is not the subject of 
 an interpleader,, on the assertion of a claim 
 to it by a third person under an independent 
 adverse titlej but the agent must deliver it 
 to the principal : for the possession of the 
 agent is the possession of the j)rincipal. And 
 the like doctrine would prevail in favor of a 
 third person to whom the principal, after the 
 bailment, had transferred the right to the 
 property, where the transfer had been recog- 
 nized and assented to by the agent. (St. 
 § 817, 817 a, 818.) But if the principal has 
 created an interest in or a lien on the funds 
 in the hands of the agent, in favor of a 
 
404 
 
 INTBRPLEADBK. 
 
 Tit. IV. 
 Cap. II. 
 
 Ability to 
 admit title 
 of either 
 claimant. 
 
 Actual pro- 
 ceedings 
 not neces- 
 sary. 
 
 Prelimina- 
 ries. 
 
 third person, and the nature and extent of 
 that interest or lien is controverted between 
 the principal and such third person, there an 
 interpleader will lie. (St. § 817 a.) 
 
 It seems essential that the person by 
 whom a bill of interpleader is filed should bo 
 in such a position as to be able to admit the 
 title of either claimant. Thus, a sheriff, who 
 seizes goods on execution, cannot ordinarily 
 maintain a bill of interpleader, on account 
 of the existence of adverse claims to the 
 property; for, as to one of the defendants, 
 heneee8sarily,under ordinary circumstances, 
 admits himself to be a wrongdoer. (See St. 
 § 821; and Child v. Mann, L. E. 3 Eq. 
 Cas. 806, where a bill of interpleader by 
 a sheriff, who sold under the order of the 
 Court of Chancery, was sustained.) 
 
 It is not necessary that proceedings should 
 have been commenced either at Law or in 
 Equity, in order to found a jurisdiction for 
 a bill of interpleader. (St. § 802.) 
 
 In order to prevent a bill of interpleader 
 being made the instrument of delay or of 
 collusion with one of the parties, the Courts 
 require that the plaintiff should make an 
 affidavit that there is no collusion between 
 him and any of the other parties; and also. 
 
INTERPLEADER. 405 
 
 if it is a case of money dae by him, that he Ti^ iv. 
 should bring the money into Court, or at — 
 least should offer by the bill to do so. (St. 
 § 809.) 
 
( 406 ) 
 
 CHAPTEE III. 
 
 OP PEOTECTION PROM REPEATED OR RENEWED 
 LITIGATION. OR PROM UNJUST LEGAL PRO- 
 CEEDINGS, AFFORDED BY DECREES UPON 
 BILLS OP PEACE OR BILLS TO ESTABLISH 
 WILLS, AND BY INJUNCTIONS. 
 
 Section I. 
 
 Of Bills of Peace. 
 
 Tit. IV. A Bill of Peace is a bill that is filed to 
 Sec. l ' establish and perpetuate, in favor of or 
 Duflnition against a number of persons, some general 
 peace. private right, which from its nature is likely 
 
 to be sought to be established or overthrown 
 by different persons, at different times, and 
 by different actions j or to confirm and per- 
 petuate a right which has been satisfactorily 
 established by twoor more trials at Law, but 
 is in danger of being again controverted. 
 (St. § 853, 854, 859.) 
 
BILLS OF PEACE. 407 
 
 In the former of these classes of cases, tit. ly^ 
 
 Sec. L 
 
 plicity of suits ; in the latter, to prevent totertoc-"' 
 
 Equity interferes in order to prevent multi- 
 
 ence. 
 
 oppressive litigation. (St. § 853, 854, 859.) 
 
 An instance of the former class occurs instance 
 
 of the first 
 
 where a bill is filed to settle the amount class of -bius 
 
 of peace. 
 
 of a general fine to be paid by all the copy- 
 hold tenants of a manor, or to establish a 
 right of common of the freehold tenants of 
 a manor. (St. § 856. Phillips v. Hudson, L. 
 E. 2 Ch. Ap. 243. For other instances, see 
 § 855, 856.) 
 
 In most cases of this class, before the Pre-requi- 
 
 sitestoabill 
 
 Stat. 21 & 22 Vict. c. 27, enabling the Court of peace. 
 of Chancery to try questions of fact, with 
 or without a jury, it was held that the 
 plaintiff ought to establish his right by a de- 
 termination of a Court of Law, before he 
 filed his bill in Equity. And if he did not 
 do so, and the right he claimed had not the 
 sanction of a long possession, and he had 
 any means of trying the matter at Law, a 
 demurrer would hold ; for the object of these 
 bills, as their name itself imports, is simply 
 to secure the quiet enjoyment of a right 
 which, primd facie at least, clearly exists, 
 and not to decide the question of a doubtful 
 right. If he had not been actually inter- 
 
408 BILLS TO ESTABLISH WILLS. 
 
 cIp in ^"Ptsd or dispossessed, so that he had had 
 seo^. jjq opportunity of trying his right, he might 
 file a bill to establish it, and the Court 
 would, if it was necessary, ascertain it by 
 an action or issue at Law, and then make a 
 decree finally binding on all parties. (See 
 St. § 854, and note.) 
 Eights in It scems that Courts of Eduity, on prin- 
 
 contraven- 
 
 lio ri"hte"^ ciples of public policy, will not, on a biU of 
 te°*edin ^^^^ nature, decree a perpetual injunction 
 for the establishment or the enjoyment of 
 the right of a party who claims in contra- 
 vention of a public right. (St. § 858.) 
 
 tliis way. 
 
 Section II. 
 
 Of Bills to establish Wills. 
 
 Sec. II. The proper jurisdiction for deciding as to 
 Jurisdiction the validity of wills, where they are actually 
 
 in general ,/ / 
 
 tho°cfurt°of contested, belongs to the Court of Probate. 
 
 Probate. jj^^^ 
 
 Exceptions. 1. The heir-at-law may, by consent, come 
 into a Court of Equity to have the validity 
 of the will tried. He cannot come into 
 Equity unless by consent ; because he has a 
 
BILLS TO ESTABLISH WILLS. 409 
 
 legal remedy by ejectment, and if there are Jit. iv. 
 any impediments to the proper trial of the ^^f^i- 
 merits of such an ejectment, he may come 
 into Equity to have them removed. (St. § 
 1447, note ; see Stat. 21 & 22 Vict. c. 2V ; 
 25 & 26 Viet. c. 42; Egmont v. Barrell, 1 Hem. 
 & Mil. 563; Cowglll v. Rhodes, 33 Beav. 
 310.) 
 
 2. A devisee in possession, whether legal 
 or equitable, has an equity to have the will 
 established against the heir, although the 
 heir has brought no action of ejectment 
 against the devisee, and although no trusts 
 arc declared by the will, and although it is 
 not necessary to administer the estate under 
 the direction of the Court of Chancery. 
 {Boyce v. Bossborough, 1 Kay, 71, 102, 111; 
 1 X. & J. 124, 139 ; 3 D. M. & G. 817 ; 6 
 n. L. 1 ; Williams v. Williams, 33 Beav. 
 306.) And the Court has jurisdiction to 
 entertain a suit to establish a will against 
 the parties claiming under a prior will. 
 (^Lovett V. Zovett, 3 K. & J. 1.) 
 
 3. And where a will is contested, and it 
 is necessary to establish Us validity, in order 
 to accomplish purposes which it is the prov- 
 ince of Courts of Equity to eifect (such as 
 the execution of trusts, the marshalling of 
 
 35 
 
410 BILLS TO ESTABLISH WILLS. 
 
 Cap m assets, &e.), and the parties are dissatisfied 
 SEfi^i. ^jjjj ^jjg probate, the Court of Equity in 
 
 which the controversy is depending will 
 
 cause the validity of the will to be tried; 
 
 and if the will is established, a perpetual 
 
 injunction may be decreed. (St. § 1445 — 7; 
 
 see Sir Hugh Cairns' Act. Stat. 21 & 22 Vict. 
 
 c. 27 ; and Mr. Eolt's Act, 25 & 26 Vict. 
 
 c. 42.) 
 
 Section III. 
 
 Of Injunctions to restrain Proceedings at Law. 
 
 Sec. III. A writ of injunction is a judicial j)roces8 
 Definition whereby a party is required to do, or to re- 
 junction. frain from doing, a particular thing. (St. § 
 
 861, 862.) 
 Common in- Injunctionsto restrain proceedings at Law 
 
 junctions. , , . t i 
 
 were either common or special. A common 
 injunction was one that issued upon and for 
 default of a defendant in not appearing to 
 or answering a bill, in order to restrain him 
 from proceeding at law touching the matter 
 in the bill, till he should have fully answered 
 the bill, and cleared his contempt, and the 
 Court should make other order to the con- 
 
INJUNCTIONS. 411 
 
 trary. It was also granted where the de- ^it. ly^ 
 fondant obtained an order for further time sec^ii. 
 to answer. This kind of injunction was of 
 course; but a, prima facie case must now be 
 made by the bill, and must be supported by 
 affidavit. (Senior v. Pritchard, 16 Beav. 473 ; 
 I/ovell V. Galloway, 17 Beav. 1; Uarl of Ox- 
 ford's Case, 2 Lead. Cas. Eq. 2d ed. 504 et seq. ; 
 15 & 16 Vict. c. 86, s. 58; Consol. 0/d. XXV. ; 
 2 Dan. C. P., 4th ed., 1462 (6), 1472 (m).) 
 
 Injunctions upon other occasions, or in- Special in- 
 
 •' ^ junctions. 
 
 volving other directions, were called special 
 injunctions. (St. § 892.) And the granting 
 or refusing of them is a matter resting in 
 the sound discretion of the Judge. (St. § 
 863.) 
 
 Injunctions to restrain proceedings at Law injunctions 
 
 '' perpetual 
 
 may be perpetual or temporary, total or par- and total, or 
 tial, qualified or unconditional. (St. § 886.) 
 And they may be granted at any stage of 
 the legal suit. Thus an injunction is some- 
 times granted to stay trial; sometimes after injunctions 
 
 ° ^ ' granted at 
 
 verdict to stay judgment; sometimes after t]JJf*^ff°^ 
 judgment, to stay execution; sometimes '■"'' 
 after execution, to stay the money in the 
 hands of the sheriff, if it is a case of fieri 
 facias, or to stay the delivery of possession, 
 if it is a writ of possession. (St. § 886.) 
 
412 
 
 INJUNCTIONS. 
 
 Tit. IV. 
 Cap. III. 
 Sec. III. 
 
 and on a 
 variety of 
 occasion?. 
 
 Bills for an 
 injunction 
 after judg- 
 ment. 
 
 There is an almost infinite variety of occa- 
 sions on which an injunction may issue to 
 stay legal proceedings. (St. § 884.) In 
 general it may be stated that an injunction 
 will issue in all cases where, by accident, 
 fraud, or otherwise, it would be against con- 
 science to proceed in another Court. (St. § 
 878—885, 887, 889.) 
 
 Bills for an injunction restraining a person 
 from availing himself of a judgment actually 
 obtained at Law, which it would be against 
 conscience to execute, are usually called Bills 
 for a New Trial. (St. § 887.) They have 
 not been countenanced much of late years. 
 In general it has been considered that the 
 ground must be such as would be a ground 
 for a bill of review of a decree in Equity on 
 the discovery of new matter. (St. § 888.) 
 And Courts of Equity will not relieve against 
 a judgment at Law, or in a foreign Court, 
 upon a ground which could have been used 
 and would have been available as a defence 
 at Law or in such foreign Court. So that 
 no relief will be granted where the party 
 aggrieved has been guilty of laches in omit- 
 ting to procure the proper proofs before the 
 trial by means of a bill of discovery, or in 
 neglecting to apply for a new trial within the 
 
INJUNCTIONS. 413 
 
 proper time. Nor will relief be granted tit. iv. 
 upon a ground which has been fully and ^™' "^' 
 fairly tried at law or in a foreign Court. 
 (St. § 887, 894, 895, 895 a.) 
 
 The Court of Chancery will not stay pro- injunction 
 
 •' •' ^ not granted 
 
 ceedings in any criminal matter, or in any aga'nstany 
 
 , o .^ 3 ./ proceedings 
 
 cases not strictly of a civil nature, such as "f acYvu'^ 
 proceedings on a mandamus, or an indict- °'''"'^^- 
 ment, or an information, or a writ of prohi- 
 bition, unless the parties who- are seeking 
 redress by such proceedings are also plain- 
 tiffs in Equity, proceeding at the time, in 
 regard to the same matter of right, for 
 redress in the form of a civil suit, and of a 
 criminal prosecution. (St. § 893.) 
 Nor will the Court grant an injunction in what 
 
 cases of civil 
 
 against any legal proceedings on the ground proceedings 
 of a mistake in pleading or in the conduct of 
 the cause ; for a party has no right to invoke 
 the aid of a Court of Equity, or to subject 
 the opposite party to fresh litigation, in order 
 to remedy the consequences of the unskilful- 
 ness, carelessness, or inadvertence of those 
 whom he employs. Nor will such an injunc- 
 tion be granted on the ground of a failure in 
 obtaining fresh evidence, or merely to let in 
 new corroborative proofs ; for that would be 
 to keep alive litigation ; nor on the ground 
 
 35* 
 
414 INJUNCTIONS- 
 
 Cat in ^^^^ ^ question of law has been erroneously 
 
 SEa£iL decided by a Court of Law ; for that would 
 
 be to constitute the Court of Chancery a 
 
 Court of Appeal from the decisions of 
 
 Courts of Common Law. (See St. § 897.) 
 
 injanction The Writ of injunction is not addressed to 
 
 to the par- the Courts in which or by whose authority 
 
 iies, not to J J 
 
 the court, the prohibited proceedings are carried on. 
 It does not affect to interfere with them. It 
 is directed only to the parties, prohibiting 
 them from making an unfair use of the pro- 
 ceedings of a Court of Law. (St. § 875.) 
 
 Injunction On similar principles, where both the par- 
 
 against a 
 
 suit in a ties to a suit in a foreign country are residing 
 
 foreign o J o 
 
 country. within this country, the Courts of Equity 
 have full authority to act on them, whether 
 by injunction or otherwise, with regard to 
 such suits ; because they can act on the par- 
 ties in personam, without presuming to direct 
 or control the foreign Court. (St. § 899, 
 900.) 
 
(415) 
 
 CHAPTBE IV. 
 
 OF PROTECTION FROM LOSS OB INJURY, IN 
 
 The jurisdiction in granting injunctions, tit. iv. 
 in such cases, has arisen either from the want 
 
 Jimsdio 
 
 of any legal remedy, or from the imperfection tion. 
 and inadequacy of the legal remedy in cases 
 where any such remedy exists. (St. § 864.) 
 
 By " The Common Law Procedure Act, 
 1854," II & 18 Yict. c. 125, s. 79—82, the 
 power of granting injunctions in certain 
 cases is given to the Superior Courts of Com- 
 mon Law. This, however, does not oust 
 the jurisdiction of th§ Court of Chancery, 
 but only gives concurrent jurisdiction to the 
 Courts of Common Law. 
 
 By the stat. 28 & 29 Yict. c. 99, s. 1, 
 par. 8, the power of granting an injunction 
 in certain cases, is given to the County 
 Courts. 
 
 Injunctions, when granted on bills, are 
 
416 INJUNCTIONS. 
 
 cip iv ^i*-^^^ temporary, as until the coming in of 
 injuDctions t^® defendant's answer, or until the further 
 temporary Order of the Court, or until the hearing 
 or^perpe ^^ ^^^ cause ; Or they are perpetual, as 
 when they form a part of the decree after 
 the hearing, and amount to a perpetual pro- 
 hibition. (St. § 873.) 
 total or par- Injunctions may be also either total or 
 
 tial, quali- i./>i ,.. ^ r»o 
 
 fled or un- partial, qualified or unconditional. (St. § 
 
 conditioual, i ' ^ v s 
 
 preventive 886.) And some are of a preventive, others 
 
 or restora- ^ ^ ' 
 
 *"'^- of a restorative character. The former are 
 
 the most common. (St. § 862.) 
 
 Injunction An injunction will not be granted, unless 
 
 prayed for. specially prayed for by the bill ; because 
 the defendant might make a different case 
 by his answer against the general words of 
 the bill, from what he would make against 
 the special prayer for an injunction. (St. 
 § 863.) 
 
 Equity will Courts of BquHy constantly decline laying 
 
 not limit its i.i,i, ,..,. 
 
 power of down any rule which shall limit their power 
 
 (granting in- 
 junctions, and discretion as to the particular cases in 
 
 which injunctions shall be granted or with- 
 held. (St. § 959 b.) And it would seem. 
 General that unless some special reason intervenes, 
 
 rule as to .,, . i, ... 
 
 cases w;here they wul in all cascs grant an injunction to 
 
 granted. protcct their own officers, who execute their 
 
 process, against any suit brought against 
 
INJUNCTIONS. 417 
 
 them for acts done under or by virtue of Tir- iv. 
 such process (St. § 891) ; and to restrain gg^T^g. 
 persons from making an unfair use of a poluteTout. 
 Court of Law, which we have considered 
 in the preceding Chapter; and to prevent 
 any one from prejudicing another, contrary 
 to equity and good conscience (see St. § 
 903—908, 927—929, 951—959) : so that it 
 would appear to be only needful to advert 
 to a few specific cases presenting points 
 which are not of a suflSciently obvious char- 
 acter to be omitted. 
 
 I. An injunction will be granted to re- i. waste, 
 strain voluntary waste. (St. § 912 — 919.) 
 But Courts of Equity have no means of in- 
 terfering in eases of permissive waste by a 
 tenant for life. {Powys v. Blagrave, 1 Kay, 
 495 J 4 D. M. & G. 448.) 
 
 A tenant for life impeachable of waste is 
 only allowed to fell timber, when, where, 
 and in such manner as that it will be for 
 the benefit of the succession ; and he is not 
 entitled to the timber when cut, (2 Sp. 570; 
 Bagot V. Bagot, 32 Beav. 509.) 
 
 A tenant for life, unless unimpeachable 
 for waste, is not entitled to open any mines 
 of coal or minerals or quarries which had 
 not been previously opened, but may work 
 
418 INJUNCTIONS. 
 
 cip w ''P®" mines. (8 Sp. 573 ; Bagot v. Bagot, 32 
 — ' Beav. 509.) 
 
 Equitable The Court of Chancery will sometimes 
 interfere with respect to what is commonly, 
 although with no great propriety, called 
 equitable waste (St. § 912); that is, such 
 destructive or injurious acts as would not 
 be punishable as waste at Law, because con- 
 sistent with the legal rights of the party 
 committing them, but which are considered 
 as waste, and as unjustifiable, in the view 
 of a Court of Equity, as occasioning an 
 unconscientious and irreparable injury to 
 the interests of the other parties ; as where 
 a tenant for life without impeachment of 
 waste, or a tenant in tail after possibility 
 of issue extinct, or a tenant in fee with an 
 executory devise over, attempts or intends 
 to pull down houses, or totally to destroy 
 a wood, or to cut down trees which were 
 planted, even though by himself, or were 
 left standing for the sheltei* or ornament of 
 the house or its grounds. (St. § 915 ; 2 Sp. 
 570, 571 ; Micklethwait v. Micklethwait, 1 D. 
 & J. 504 ; Turner v. Wright, 1 Johns. 740 ; 
 2 D. F. & J. 234.) 
 
 Waste in On similar grounds, although in general 
 
 the case of . ^^ .n • n i 
 
 tenants iQ the Court Will not interfere by injunction 
 
INJUNCTIONS. 419 
 
 to prevent waste as between tenants in ^it. iv. 
 common, or coparceners, or joint tenants, ^qj^I^ (.„. 
 because they Lave a right to enjoy the P„™"i^t' 
 estate as they please, and because they can *™*°*^- 
 make partition when they choose, so as to 
 prevent future waste j yet the Court will 
 interfere in special cases, as where the 
 waste is destructive of the estate, and not 
 within the usual legitimate exercise of the 
 right of enjoying the estate. (St. § 916 ; 
 and see 909, note.) 
 
 II. In the case of public nuisances, an ii. PuWic 
 
 nuisances, 
 
 information lies in Equity to redress the 
 grievance by way of injunction. (St. § 923, 
 924 a.) In regard to private nuisances, in Private 
 
 nuisances. 
 
 order to justify the interposition of a Court 
 of Equity, there must be such an injury as 
 from its nature is not susceptible of being 
 adequately compensated by damages at 
 Law, or such as from its continuance must 
 occasion a constantly recurring grievance, 
 which cannot be prevented otherwise than 
 by an injunction. (St. § 925, 926; see 
 Eaden v. Firth, 1 Hem. & Mil. 573 ; Tap- 
 ping V. St. HeUn's Smelting Company, L. E. 
 1 Ch. Ap. 66.) 
 
 III. The Court of. Chancery frequently iii. Patents, 
 interferes in cases of patents for inventions. 
 
420 IISTJUNCTIONS. 
 
 cip. iv. (S^- § 930—933; Clark v. Fergusson, 1 Gif. 
 184.) If the patent has been recently- 
 granted, and its validity has not been 
 already ascertained by a trial, and the 
 defendant denies it, or puts the matfer 
 in doubt, there, in general, the Court will 
 not grant an immediate injunction, but will 
 require the validity of the patent to be as- 
 certained in the first instance, retaining the 
 bill in the meantime. But if the patent 
 has been granted some length of time, and 
 the patentee has put the invention into 
 public use, and has had an exclusive posses- 
 sion of it under his patent for such a period 
 of time that there is a fair ground for pre- 
 suming that he has an exclusive right, the 
 Court will ordinarily interfere by way of 
 preliminary injunction, pending the pro- 
 ceedings; reserving, of course, until the 
 ultimate decision of the cause, its own final 
 judgment on the merits. And an injunc- 
 tion will be granted after the time limited 
 for the expiration of a patent, to restrain 
 the sale of articles manufactured in viola- 
 tion of the patent, while it was in force. 
 (St. § 934.) 
 IV. Copy- IV. Courts of Equity often afford protec- 
 
 riglits. . -1 ./ r 
 
 tion to copyrights, and act upon similar 
 
INJUNCTIONS. 421 
 
 principles with respect to the title. (St. § tit. iv. 
 935, 949, 950 ; see Phillips on Copyr. 146 — ' 
 —166.) 
 
 If a work is of a clearly irreligious, im- 
 moral, libellous, or obscene character, they 
 will not protect it. (St. § 936—938.) 
 
 It is not an infringement of the copyright 
 of a book to make bond fide quotations or 
 extracts from it, or a bond fide abridgment 
 of it, or to make a bond fide use of the same 
 common matter in the compilation of an- 
 other work. But what constitutes a bond 
 fide case of extracts, or a bond fide abridg- 
 ment, or a bond fide use of the same common 
 materials, is often a matter of most embar- 
 rassing inquiry. (Upon this subject, see St. 
 § 939 — 942, and notes ; and Jarrold v. Houls- 
 ton, 3 K. & J. 708 ; Hoiten v. Arthur, 1 Hem. 
 & Mil. 603.) 
 
 It is not an infringement of copyright for 
 a person to represent a play dramatized from 
 a novel written by another. But it is an 
 infringement to print and publish a play so 
 constructed, at least if it embodies verbatim 
 the most stirring passages from the novel. 
 (^Tinsley v. Lacy,.l Hem. & Mil. 747.) 
 
 V. Courts of Equity will also restrain the v. Letters, 
 publication of private letters, whether of a 
 
422 INJUNCTIONS. 
 
 ci-p IV 'its*"^!"/ character or otherwise, where the 
 publication is attempted without the con- 
 sent of the author. The property which the 
 receiver has in letters is of a qualified kind. 
 To permit the receiver to publish letters of 
 a literary character, would be allowing him 
 to sell or give away that which belongs and 
 may be of value to another; and to permit 
 the receiver to publish letters of other kinds, 
 would be allowing a practice which must 
 prove most prejudicial to the interests of 
 society. (St. § 944—948; see Phillips on 
 Copyr. 27—34.) 
 VI. Appii- yi. Applications to Parliament on private 
 
 cations to 
 
 Parliament, grounds may be restramed by injunction ; 
 but applications on public grounds cannot 
 be restrained. (^Lancaster and Carlisle Bail- 
 way Company v. Northwestern Railway 
 Company, 2 K. & J. 293 ; see Steele v. North 
 Metropolitan Railway Company, L. E. 2 Ch. 
 Ap. 237.) 
 
 Courts of Equity eflfectuate their own 
 decrees in many cases, by enjoining parties 
 to yield up, deliver, quit, or continue the 
 possession. (St. § 959.) 
 
( 423 ) 
 
 CHAPTBE Y. 
 
 OF PROTECTION FROM ANOTHER'S ABSCOND- 
 MENT BY THE WRIT OF NE EXEAT REGNO. 
 
 The writ of ne exeat regno is a prerogative tit. iv. 
 writ which is issued to prevent a person — 
 from leaving the realm (St. § 1465), even 
 though his usual residence is in foreign 
 parts. (2 Sp. 15.) 
 
 It was originally applied only to great 
 political purposes. (St. § 1467.) And al- 
 though it is now applied in certain cases by 
 custom to private civil matters only, yet it 
 is employed with great caution and jealousy 
 (St. § 1468), after a bill filed. (St. § 1467, 
 note.) 
 
 This writ will not be granted, except in 
 cases of equitable debts and claims ; for, in 
 regard to civil rights, it is treated in the 
 nature of an equitable bail. (St. § 1470.) 
 
 To this, however, there are two excep- 
 tions : 1. "Where alimony was actually de- 
 creed by the Ecclesiastical Court, and no 
 
424 NE EXEAT REGNO. 
 
 cap^v' appeal was made against the decree, the 
 
 writ was granted, unless the husband made 
 
 it appear that he did not intend to leave the 
 kingdom. And it is presumed the writ would 
 now be granted under similar circumstances 
 in the case of alimony decreed by the Di- 
 vorce Court. (St. § 1471 and note, and 1472.) 
 2. Where there is an admitted balance due 
 from the defendant to the plaintiff, but a 
 larger sum is claimed by the latter, the writ 
 will be issued. (St. § 1471, 1473.) 
 
 The equitable demand for which the writ 
 will be issued, must be certain in its nature, 
 of a pecuniary character, and actually pay- 
 able, and not contingent. (St. § 1474.) 
 
( 425 ) 
 
 CHAPTBE VI. 
 
 OF THE PROTECTION OF PROPERTY, BY TAKING 
 AWAY THE POSSESSION OR RECEIPT THERE- 
 OF, OR BY REQUIRING SECURITY. 
 
 I. The Court of Chancery very frequently tit. iv. 
 prevents anticipated wrong or loss, by the — ; 
 appointment of a receiver to receive rents ™c"'Yer%) 
 and other income or profits. (St. § 826.) 
 And such an appointment may be made 
 even where the property is legal, and judg- 
 ment creditors have taken possession of it 
 under writs of elegit; for it is competent for 
 the Court to appoint a receiver in favor of 
 annuitants and equitable creditors, not dis- 
 turbing the just prior rights, if any, of 
 judgment creditors. (St. § 829.) 
 
 A receiver so appointed is treated as Nature of 
 virtually an officer and representative of the and pos- 
 Court, for the more speedy getting in of 
 such rents, income, or profits, and the secur- 
 ing the same for the benefit of the person 
 
 (o) See Stat. 23 & 24 Vict. c. 145, 8. 17—24. 
 36* 
 
426 APPOINTMENT OF EECEIVEE, ETC. 
 
 Cap vl ^^tit'^^ ^° it- 1° ^^^ ^^^^ '^^ adverse claims, 
 the appointment of a receiver does not at 
 all aflfect the right. The Court virtually 
 becomes the landlord pro hac vice, and the 
 receiver, as an officer of the Court, is gen- 
 erally entitled to the possession; and his 
 possession is treated as the possession of the 
 Court, in the first instance, and then of the 
 party who ultimately establishes his right 
 to it; and, therefore, is not to be disturbed, 
 even by an ejectment under an adverse title, 
 •without the leave of the Court. (St. § 831, 
 833, 833 a.) 
 His power. The receiver cannot proceed in any eject- 
 ment against the tenant, except by the 
 authority of the Court. (St. § 833.) And 
 when in possession, he has very little dis- 
 cretion allowed him, but must apply from 
 time to time to the Court for authority to 
 do such acts as may be beneficial to the 
 estate. (St. § 833 a.) 
 II. Payment H- I" Other cascs, the Court affords pro- 
 or to the ' tection by an order to pay a fund into Court : 
 
 party en- 
 titled, or in Others, by directing security to be given, 
 
 or money to be paid over. (St. § 826, 839 
 
 —848.) 
 III. Deposit III- The Court will also direct that papers 
 monts. ' and writings in the hands of executors and 
 
DELIVERY OF CHATTELS. 427 
 
 administrators shall be deposited with the tit. iv. 
 Court for the benefit of those interested, 
 unless there are other purposes which re- 
 quire that they should be retained in the 
 hands of the executors or administrators. 
 (St. § 842.) 
 
 IV. The Court will not ordinarily enter- iv. Deliv- 
 ery of chat- 
 tain bills for the specific delivery of chattels, teis. 
 
 But where the chattel is of such a nature 
 that the loss of it could not be fully com- 
 pensated by damages, the Court will decree 
 a specific delivery thereof (St. § 708—710 ; 
 Pusey V. Pusey, Puke of Somerset v. Cookson, 
 1 Lead. Cas. Eq. 2d ed. 654 — 5 et seq.) 
 
TITLE V. 
 
 ®f |)rotertit)e ®qtiUa. 
 
 in JFaior ot f trsona un&tr JBiaaiiUts. 
 
 (429) 
 
( 430 ) 
 
 CHAPTEE I. 
 
 OF INFANTS. 
 
 Tit. V. 
 Cap. I. 
 
 Jurisdic- 
 tion. 
 
 Appoint- 
 ment of 
 guardians. 
 
 The care of infants, as persons who are 
 not able to protect themselves, belongs to the 
 Sovereign, as parens patrice ; and the correct 
 opinion seems to be, that this prerogative 
 was delegated to the Court of Chancery from 
 its first establishment; and that the juris- 
 diction does not belong to the Lord Chan- 
 cellor only, in virtue of his general power as 
 holder of the great seal and as keeper of the 
 Eoyal conscience; since the jurisdiction may 
 be exercised as well by the Master of the 
 EoUs as by the Chancellor, and since an 
 appeal lies, as in other cases in which the 
 Courtof Chancery has a general jurisdiction, 
 from the decision of the Court of Chancery 
 to the House of Lords. (St. § 1333—7. 
 And on this subject see Hyre v. Countess of 
 Shaftesbury, 2 Lead. Cas. Bq. 2d ed. 538 etseq.) 
 
 The Court of Chancery will appoint a 
 suitable guardian to an infant, where there 
 
INFANTS. 431 
 
 Tit. V. 
 Cap. I. 
 
 is no other, or no other who will or can act, 
 at least where the infant has property. If 
 the infant has no property, the Court, per- 
 haps, will not interfere ; not from want of 
 jurisdiction, but because it cannot exercise 
 its jurisdiction usefully, without having the 
 means of applying property for the benefit 
 of the infant. Guardians appointed by the 
 Court are considered as officers of the Court, 
 and are held responsible to it accordingly. 
 (St. § 1338.) 
 
 The Court will remove a guardian of any Eemovai of 
 
 , guardians. 
 
 kind, whenever sufficient cause can be shown 
 for such a purpose, or will regulate and Controiov 
 direct the conduct of the guardian in regard 
 to the custody and education and mainte- 
 nance of the infant, and, if necessary, will 
 even appoint the school where he shall be 
 educated, and will require security to be 
 given, if there is any danger of injury to his 
 person or property. (St. § 1339.) 
 
 The doctrine of the Court is that children Eeiigion. 
 should be brought lip in the religion of their 
 father. So that when a deceased father was 
 a member of the Church of England, and the 
 mother, who was their guardian, had become 
 one of the Plymouth Brethren, she was re- 
 strained from taking them to a meeting- 
 
432 INFAKTS. 
 
 cip \' bouse of that sect. (In re Newhery, L. E. 1 
 -— ' Eq. Cas. 431, Ch. Ap. 263.) 
 Assistance The Court Will also assist guardians in 
 
 of guar- 
 
 dians. Compelling their wards to go to the school 
 
 selected by the guardian, as well as in ob- 
 taining the custody of the persons of their 
 wards, when they are detained from them. 
 (St. § 1340.) 
 Removal of In general, parents are intrusted with the 
 from their -custody and education of their children, on 
 
 parents. • . i i .1 i 
 
 the natural presumption that the children 
 will be properly treated, and that due care 
 will be taken of them, in regard to learning, 
 morals, and religion. But whenever this 
 presumption is negatived by the actual state 
 of the case, and a father is guilty of gross 
 ill-treatment of his infant child, or is living 
 in habits of gross immorality, or otherwise 
 acts in a manner injurious to the morals or 
 interests of his children, the Court of Chan- 
 cery will deprive him of the custody of his 
 children, and appoint a suitable person to 
 act as guardian. (St. § 1341—1349 ; Swift 
 V. Swift, 34 Beav. 266.) 
 Conversion Guardians may change the nature of the 
 infant's property, when it is manifestly for the bene- 
 
 property. . -r-» i 
 
 -fit of the infant, but not otherwise. But al- 
 though it has been said that there is no 
 
INFANTS. 433 
 
 Equity in such a case between the represen- ^^^ ^■ 
 tatives of the infant, nevertheless, for the 
 purpose of preventing any such acts of the 
 guardian, in case of the death of the infant 
 before he comes of age, from changing im- 
 properly, through partiality or otherwise, the 
 rights of the parties, who, as heirs or distrib- 
 utees, would otherwise be entitled to the 
 property. Courts of Equity hold lands pur- 
 chased by the guardian with the infantas 
 personal estate, or with the rents and profits 
 of his real estate, to be personalty, and dis- 
 tributable as such ; and on the other hand, 
 they treat the proceeds arising fi-om the sale 
 of real property (as, for example, of timber 
 cut down on a fee-simple estate of the infant) 
 as real estate. It is common for guardians 
 to ask the sanction of the Court to any acts 
 of this sort; and, when the Court directs any 
 such change of property, it directs the new 
 investment to be in trust for the benefit of 
 those who would be entitled to it, if it had 
 remained in its original state. (St. § 1357.) 
 
 Sometimes infants become wards of Chan- who are 
 eery. Properly speaking, a ward of Chan- chancery, 
 eery is a person who is under a guardian 
 appointed by the Court of Chancery. But 
 whenever a suit is instituted in that Court, 
 
 37 
 
434 INFANTS, 
 
 cIp T' relating to the person or property of an in- 
 fant, although he is not under any general 
 guardian appointed by the. Court, he is 
 treated as a ward of the Court. (St. § 1352 ; 
 Gynn v. Gilbard, 1 Dr. & Sm. 356.) 
 All acts af- Any act affecting the person or state or 
 
 fcctinET 
 
 them must property of a ward of Chancery, unless done 
 under the under the express or implied direction of 
 
 direction of l r 
 
 the Court, ^^jjg Qourt, is treated as a violation of the 
 authority of the Court, and the offending 
 party will be arrested for that contempt, and 
 compelled to submit to such order, and to 
 such punishment by imprisonment, as are 
 applied to other cases of contempt. (St. 
 § 1353.) 
 
 Mainte- Whenever an infant is a ward of the Court 
 
 of Chancery and a suit is depending in the 
 Court, the Court will, of course, direct a 
 suitable maintenance for the infant, having 
 a due regard to his rank, intended profession 
 or employment, property, and expectations. 
 (St. § 1354.) And independently of the 
 Stat. 23 & 24 Vict. c. 145, s. 26, maintenance 
 will now be ordered even where the infant 
 is not a ward of the Court, and not resident 
 within the jurisdiction, if he has no father, or 
 
 (a) See stat. 23 k 24 Vict. c. 145, s. 26. 
 
 Daoce (a). 
 
INFANTS. 435 
 
 his father is unable to maintain him. fSce tit. y. 
 
 V Cap. I. 
 
 St. § 1354, 1354 a, 1354 b.) — 
 
 Where a legacy is vested, it seems that 
 maintenance will be ordered, though none is 
 directed by the will, and though the interest 
 is directed .to be accumulated. (2 Sp. 462.) 
 And though a sum be directed to be paid 
 periodically for maintenance, until the time 
 for the payment of the portion, the' child 
 will be entitled to a proportionate part dur- 
 ing the interval between the last periodical 
 payment and that time. (2 Sp. 462.) And 
 when no maintenance is given, an infant 
 child of the testator is entitled to the interest 
 even of a legacy contingent on his attain- 
 ing twenty-one. {Chambers v. Goldwin, 11 
 Ves, 1; Martin v. Martin, L. E. 1 Bq. Cas. 
 369.) 
 
 The Court of Chancery is governed by 
 a regard to the circumstances and state of 
 the family to which the infant belongs, in 
 respect to the allowance of any maintenance 
 at all, and to the amount of such allowance. 
 So that, although there may be a trust for 
 maintenance under which the whole income 
 may be applied, yet the Court will not ap- 
 ply more of it than necessary, where the in- 
 fants haver other sources of income. ( White 
 
436 INFANTS. 
 
 cip T' ^- ^rane, 18 Beav. 571.) And if the father 
 — is able to maintain the infant out of his own 
 property, the Court will ordinarily withhold 
 all allowance from the property or income 
 of the infant for the maintenance of the lat- 
 ter, even though there may be a power (as 
 distinguished from a trust), in the settle- 
 ment or will, at the discretion of the trustees, 
 to appoint j)art of the income for the pur- 
 pose of his maintenance and education. (St. 
 § 1354 a, and note; 2 Sp. 462, 466.) But 
 if there is a contract on marriage amounting 
 to a trust that property shall be applied for 
 the maintenance and education of the chil- 
 dren, the property must be applied, without 
 reference to the ability of the father to main- 
 tain and educate them. And in the case of 
 a legacy given by a stranger, the interest 
 of it may be so given or directed to be ap- 
 plied, as to be in substance a gift to the 
 father, or rather for his benefit. (2 Sp. 466 
 — 468.) And if the infant is an eldest son, 
 and the younger children have no provision 
 made for them, an ample allowance will be 
 decreed, to him, in order that the younger 
 children may be maintained. And the 
 Court will act in a similar way where the 
 father or mother of the infant is.in distress 
 
INFANTS. 437 
 
 or narrow circumstances. (St. § 1355 ; 2 Trr. v. 
 Sp. 461, 462.) — ' 
 
 The Court, however, in allowing mainte- 
 nance, almost always confines it within the 
 income of the property. But where the 
 property is small, and more means ai-e neces- 
 sary for the due maintenance of the infant, 
 part of the capital will sometimes be directed 
 to be applied for the purpose. But without 
 the express sanction of the Court, a trustee 
 or guardian should not so apply any part of 
 the capital. (St. § 1355 ; 2 Sp. 461.) 
 
 The words " maintenance, education, and 
 bringing up," standing together, have ref- 
 erence to minority only. But where the 
 interest of a fund is directed to be applied 
 for the "maintenance and education" of a 
 person, though at the time an infant, he 
 is, generally speaking, entitled to the in- 
 terest during his life. "Education" includes 
 maintenance. Where maintenance is given 
 during minority, as a general rule it does 
 not cease on the marriage of the child. (2 
 Sp. 460 ; Carr v. Living (No. 2), 33 Beav. 
 474.) 
 
 Where the income of property is given to 
 the mother for the maintenance of herself 
 and her children, she is to receive the whole 
 37* 
 
438 INFANTS. 
 
 ^"- Y" income, and maintain the children out of it, 
 so long as they form part of her family ; but 
 when they are forisfamiliated, as by mar- 
 riage, they lose the right to maintenance. 
 (2 Sp. 461.) 
 
 Property Where infants resident here become en- 
 
 decreed to 
 
 foref n ^^ titled to personal property, under the decree 
 court. Qf ^ foreign tribunal, it will be administered 
 
 for their benefit here, just as any other prop- 
 erty. (2 Sp. 13, 14.) 
 Marriage of If a man marries a ward of Chancery 
 the court without the consent of the Court, even 
 
 without it3 
 
 consent. though with the consent of the guardian, 
 he, and all others concerned in aiding and 
 abetting the act, are treated as guilty of a 
 contempt of Court ; and, even though he 
 was ignorant that she was a ward of the 
 Court, he is deemed guilty of a contempt. 
 (St. § 1358.) 
 
 Eecogniz- Where the Court appoints a guardian or 
 
 ance that a ... 
 
 ward of Committee in the nature of a guardian, to 
 
 court shall " 
 
 not marry, have the Care of an infant, it is accustomed 
 to require the guardian or committee to give 
 a recognizance that the infant shall not 
 marry without the leave of the Court ; so 
 that if the infant should marry even without 
 the knowledge or neglect of the guardian or 
 committee, yet the recognizance would in 
 
INFANTS. 439 
 
 strictness be forfeited, whatever favor the J"-"^- 
 
 ' Cap. I. 
 
 Court might think fit to show to the party, 
 
 when he should appear to have been in no 
 
 fault. (St. § 1359.) 
 
 Where there is reason to suspect an im- interdic- 
 tion of in- 
 provident marriage, without its sanction, the tended 
 
 ° marriage of 
 
 Court will, by an iniunction, not only inter- a ward of 
 
 ' •' v ' 'J court, and 
 
 diet the marriage, but also all communica- "faddresses. 
 tions between the ward and the admirer; 
 and if the guardian is suspected of any con- 
 nivance, the Court will substitute a com- 
 mittee in his stead. (St. § 1360.) 
 
 In case of an offer to marry a ward of settlement 
 
 on a ward of 
 
 Court, the Court will inquire and ascertain court. 
 whether the match is a suitable one, and 
 what settlement ought to be made on the 
 marriage; and it is not competent to the 
 parties, by delaying the marriage until the 
 wife has come of age, to defeat the settle- 
 ment approved by the Court. (2 Sp. 499.) 
 And when a man has been committed for a 
 contempt in marrying a ward of Court with- 
 out its sanction, he will not be discharged 
 until he has actually made such a settlement 
 as shall have been deemed proper by the 
 Court. And this will be the case even 
 where the ward has subsequently come of 
 age, and is ready to waive her right to a 
 
440 INFANTS. 
 
 Cap ^i' settlement ; for the Court will protect her 
 against her own indiscretion and the undue 
 influence of her husband. (St. § 1361.) 
 
 Where a settlement is executed a few days 
 after the lady, who has been a ward of Court, 
 has attained her majority, and is pursuant 
 to proposals made a very short time before 
 she attained her majority, and is such, that 
 the Court would not approve thereof, it will 
 be rectified, if at least it was the work of her 
 friends, and she was not made to understand 
 its effect, and called upon to exercise her 
 judgment upon it. {Money v. Money, 3 
 Drewry, 256.) 
 
 If a ward of Court marries a few days after 
 majority, the Court will decline to order her 
 fortune to be paid out of Court, on her 
 consent, and will refuse to do more than 
 order payment of the income to the husband 
 during their joint lives, or until further 
 order, without prejudice to any question, 
 with liberty to apply. {Biddle v. Jackson, 
 26 Beav. 282.) 
 Control over The Court of Chancery will exercise a 
 
 guardians 
 
 and others Vigilant Care over infants in the manaffe- 
 
 for the ° =" 
 
 V™'**'"'' mcnt of their property; and will also aid 
 and protect infants against other persons 
 than those who are guardians; such, for 
 
INFANTS. 441 
 
 instance, as intruders upon the estate. (St. Q^p^- 
 §1356.) (a) — ■ 
 
 The Coui-t has no jurisdiction to order the 
 cancellation of articles of apprenticeship and 
 the return of a portion of- the premium, on 
 the ground of the wrongful refusal of the 
 master to continue to instruct his apprentice 
 in his trade, according to his agreement. 
 (Webb Y. England, 29 Beav. 44.) 
 
 (a) On the subject of infants, see 1 Will. IV- co. 60, 
 65 ; 13 & 14 Tiot. u. 60 j 15 & 16 Vict. c. 55 ; 19 A 20 
 Vict. u. 120. 
 
( 442 ) 
 
 CHAPTEE II. 
 
 OF PERSONS OP UNSOUND MIND. 
 
 Tit. V. The Sovereign, as parens patrice, had, from 
 — the first, the care of idiots and lunatics who 
 
 Jurisdic- 
 tion, iiad no other guardian. But the statute 17 
 
 Ed. II. e. 9, or some early statute, besides 
 
 giving the King the custody of idiots, also 
 
 vested in him the profits of the idiot's lands 
 
 during his life, as a beneficial interest, (a) 
 
 And with respect to lunatics, the statute 17 
 
 Ed. II. c. 10, enacted, that the King should 
 
 provide that their lands and tenements 
 
 should be kept without waste; which makes 
 
 him a trustee for them. Thus, the Crown 
 
 hath both general Authoritj as parens patrice, 
 
 and a specific authority, and, in the case of 
 
 idiots, a beneficial interest also, vested in it 
 
 by statute. And as the Chancellor is the 
 
 person by whom the Crown exercises its 
 
 (a) In Older that questions as to the rights of the 
 Grown may be avoided, no person is now found as idiot ;' 
 the inquiry as to the commencement of the insanity is not 
 carried back to the birth. Phillips on Lunacy, 224. 
 
PERSONS OF UNSOUND MIND. 443 
 
 powers, he acts in a twofold capacity ; in tit. v. 
 Bome respects, under the special warrant, 
 by the sign manual, in exercise of the right 
 and power conferred by the statute ; in 
 others, as keeper of the Eoyal conscience, 
 and delegate of the Crown, in its character 
 o? parens patriae. The warrant gives to the 
 Chancellor the right of providing for the 
 maintenance of idiots and lunatics, and for 
 the care of their persons and estates, and 
 no more. But the Chancellor is in the 
 habit of making many orders, and enforcing 
 them by attachment ; which orders, and the 
 manner of enforcing them, are not war- 
 ranted by the sign manual, but are war- 
 ranted by the general power- of the Court. 
 Yet the Chancellor does not act as an Equity 
 Judge, as administering the general powers 
 of a Court of Equity, when he makes these 
 orders and enforces them by attachment ; for 
 if he did, an appeal would lie to the House 
 of Lords (see St. § 1336, 1362, 1363, 1364, 
 and note); whereas, although from a decree 
 made on a bill filed relating to a lunatic's 
 estate, in the regular course of Chancery 
 procedure, an appeal lies to the House of 
 Lords, yet an appeal from an order made 
 on motion or petition in lunaej- lies to the 
 
444 
 
 PERSONS OF UNSOUND MIND. 
 
 Tit. V. 
 Cap. II. 
 
 Transac- 
 tions with 
 persons of 
 unsound 
 mind. 
 
 Judicial Committee of the Privy Council. 
 (Macqueen's Appellate Jurisdiction, pp. 99, 
 752, 754, &c.) The Chancellor, in making 
 such orders and enforcing them, acts mere- 
 ly by virtue of his power as keeper of 
 the Queen's conscience, and delegate of the 
 Crown, but as he exercises this authority 
 when sitting in the Court of Chancery, he is 
 clothed with the general power of the Court. 
 
 Jurisdiction in lunacy has been given by 
 statute to the Lords Justices of the Court 
 of Appeal in Chancery. 
 
 The jurisdiction extends not only to idiots 
 and lunatics, properly so called, but also to 
 all persons who, from age or other misfor- 
 tune, are incapable of managing their own 
 affairs, and therefore are properly deemed 
 of unsound mind or non compos mentis. (St. 
 § 1365.) And a commission of lunacy may 
 issue where the lunatic has property within 
 this country, although he is domiciled 
 abroad. (St. § 1365 a.) 
 
 Some observations have already been 
 made on transactions with such persons, in 
 the Chapter on Actual Frauds, (a) 
 
 (a) On the subject of persons of unsoand mind, see 1 
 Will. IV. 00. 60, 65 ; 13 & 14 Vict. c. 60 ; 15 & 16 Vict. 
 «. 55 ; 16 & 17 Viot. c. 70 ; 18 Vict. u. 13 ; 19 i 20 Viet. 
 0. 120 i 25 4 26 Vict. cc. 86, 111. 
 
( 445 ) 
 
 CHAPTER III. 
 
 OF MARRIED WOMEN. 
 
 At the Common Law, the bcinff or legal tit. v. 
 
 ' ° ° Cap. III. 
 
 existence of the wife, for almost all pur- Q(,^~„ 
 poses, is considered as merged in that of the 'trJl^e.'"'' 
 husband. (See St. § 1367.) But Courts of S;j'sub?ea 
 Equity, in many respects, treat husband and tones of " 
 
 equity as to 
 
 Wife as distinct persons. (St. § 1368.) married 
 
 ^ ^ ^ women. 
 
 In illustration of this, let us consider, 
 
 I. The powers which they have, in Equity, 
 of contracting with, and giving and grant- 
 ing to, each other. 
 
 II. The wife's pin-money and parapher- 
 nalia. 
 
 III. The wife's separate estate. 
 
 IV. The equity of the wife to a settle- 
 ment or maintenance out of her own prop- 
 erty. 
 
 V. Some points respecting deeds of sep- 
 aration. 
 
 38 
 
446 MARRIED WOMEN. 
 
 Section I. 
 
 The Powers which Husband and Wife have, 
 in Equity, of Contracting with, and Giving 
 and Granting to, each other. 
 
 Tit. v. I. At Law, Contracts made between hus- 
 Cap. III. ,,,.„,„ 
 Sec. I. band and wife before marriage, are extin- 
 
 I. Contracts guishcd bv the marriaa;e, if they are for 
 
 before mar- ^ *' o ? »/ 
 
 riage. debts Or things due in prcesenti, or at or on 
 
 a future time or event which may occur dur- 
 ing, and not after the determination of, the 
 coverture. But Courts of Equity, although 
 they generally follow the same doctrine, will 
 enforce such contracts, where it would be in 
 furtherance of the manifest intention and 
 object of the parties to do so; as in the case 
 of an agreement by husband and wife for 
 the mutual settlement of their estate, or of 
 the estate of either of them on the other, 
 on the marriage, even without the interven- 
 tion of trustees. (St. § 1370, 1371.) 
 
 II. Con- II- Contracts made between husband and 
 
 tracts after -no. • ii.i i 
 
 marriage. Wife, after marriage, ai-e a mere nullity at 
 law; but under peculiar circumstances, they 
 
MARRIED WOMEN. 447 
 
 ■will be enforced in Equity, where they are ^A'p'ra 
 of a reasonable nature. Thus, if the bus- seo^i. 
 band should contract with his wife, for good 
 reasons, that she should separately possess 
 and enjoy property bequeathed to her, the 
 contract would be upheld in Equity. (See 
 St. § 1372; Hewison v. Negus, 16 Beav. 594; 
 Anderson v. Abbott, 23 Beav. 457.) So the 
 ■wife may even become a creditor of her 
 husband ; and her rights, as such, will be en- 
 forced against him and his representatives. 
 Thus, if a ■wife should raise money out of her 
 estate, to answer his necessities, whatever 
 be the mode adopted to carry that purpose 
 into effect, she -would in Equity be entitled 
 to reimbursement out of his estate. (St. § 
 1373.) But a contract by the husband to 
 transfer his rights and duties in reference to 
 his children to his wife, is contrary to public 
 policy, and -will not be enforced; (Vansittart 
 V. Vansittart, 4 K. & J. 62 ; Walrond v. Wal- 
 rond, 1 Johns. 18;) unless his conduct has 
 been such, that the Court of Chancery 
 ■would remove the children from his custody. 
 (Swift V. Swift, 34 Beav. 266.) 
 
 JII. Gifts and grants too, ■whether express iii. Gifts 
 
 and grants 
 
 or implied, b^v a husband to his ■wife, after after mar- 
 
 r ' J 1 riage. 
 
 marriage, although ordinarily void at Law, 
 
448 MARBIED WOMEN. 
 
 Cat m ^''^ ^^ enforced in Equity, if they are of a 
 seo^i. reasonable nature, and there is no ground to 
 suspect fraud. Thus, gifts made by the 
 husband to the wife to purchase clothes or 
 personal ornaments, or for her separate ex- 
 penditure, and personal savings and profits 
 made by her in her domestic management, 
 which the husband allows her to apply to 
 her own separate use, will be held to vest in 
 her, as against her husband, but not as 
 against his creditors, an unimpeachable right 
 of property therein, so that they may be 
 treated as her separate estate, if such gifts 
 are established by clear and incontroverti- 
 ble evidence. (St. § 1374, 1375.) If a husband 
 makes presents of chattels to his wife, even 
 verbally, and without words of separate use, 
 her right to them will be enforce'd against 
 his residuary legatee, if the gift is proved 
 by the testimony of any one who beard him 
 use words of gift, or to whom he afterwards 
 stated that he had given the chattels, or 
 that they were hers. But the Court will 
 not act upon the unsupported oath of the 
 wife. {Grant v. Grant, 34 Beav. 623.) 
 
MARRIED WOMEN. 449 
 
 Section II. 
 
 Pin-money and Paraphernalia. 
 
 I. Pin-money is not deemed to be an ab- tit. v. 
 solute gift ; it is not considered like money Sec. ii.' 
 set apart for the sole and separate use of i- K"- 
 
 ■^ ^ money. 
 
 the wife during coverture ; but it is a sum 
 payable by the husband to the wife, in virtue 
 of a particular arrangement, and to be ap- 
 plied by the wife in attiring her person in a 
 manner suitable to the rank of her husband, 
 and in defraying other personal expenses — a 
 sum allowed to save the trouble of a constant 
 recourse by the wife to the husband, in order 
 to meet her ordinarily personal expenses. 
 (See St. § 1375 a, and note ; 2 Sp. "500, 501.) 
 Such beins: the peculiar nature of this Arrears 
 
 ° ^ . thereof. 
 
 provision, the wife cannot make a sweeping 
 disposition of it, as she can of her separate 
 estate. And Courts of Equity refuse to call 
 upon the husband to pay beyond the ar- 
 rears of a year, although stipulated for by a 
 marriage settlement. For, setting aside the 
 presumed satisfaction by acquiescence, the 
 money is meant to dress the wife during the 
 
 38* 
 
450 MARKIED WOMEN. 
 
 dAp'ni y^^^' ^° ^® *° ^®®P ^P ^^^ dignity of the 
 SisoiL husband, and not for the purpose of accu- 
 mulation. And, on the same principle, the 
 personal representatives of the wife are not 
 allowed to make any claim even for arrears 
 of a year. (St. § 1375 a, and note ; 2 Sp. 
 501 ; 1 Lead. Cas. Eq. 3d ed. 479.) 
 II. Para- II. The wife's paraphernalia are personal 
 apparel and ornaments of the wife, suitable 
 to her rank and condition in life. (St. § 
 1376.) Old family jewels, though worn by 
 the wife, do not constitute part of her para- 
 phernalia, unless she has acquired them by 
 gift or bequest. (Jervois v. Jervois, 17 Beav. 
 566.) 
 Euie of law At Law, the husband may, in his lifetime, 
 them. but not by his will, dispose of the wife's 
 
 paraphernalia, with the exception of neces- 
 sary apparel. And they are liable to the 
 claims of creditors, with the like exception. 
 Rule of And if the articles were given by the hus- 
 wliere'thcy band, either before or after marriage. Courts 
 
 were given 
 
 bythehus- of Equity fully recognize this right of the 
 husband and his creditors, instead of treat- 
 ing the articles as absolute gifts to the wife, 
 as her own separate property ; although, in 
 the case of creditors claiming against the 
 assets of the husband, the personal assets of 
 
MARRIED WOMEN. 451 
 
 the husband will be marshalled against his ^'^'J-j^j 
 representatives in favor of the widow. But ^ec^i. 
 if the articles were bestowed on the wife by 
 any one else, they will be deemed absolute or where 
 
 given by 
 
 gifts to her separate use ; and then, if re- any one 
 ceived with the consent of the husband, 
 neither he nor his creditors can dispose of 
 them. (St. § 1376, 1377; 1 Lead. Cas. Bq. 
 3d ed. p. 480.) 
 
 Section III. 
 
 The Wife's Separate Estate, (a) 
 
 I. With regard to the means of acquiring se,,. m. 
 a separate estate — i. Means of 
 
 acqui ring it. 
 
 1. Whenever real or personal estate is i. By gift, 
 
 '■ grant, de- 
 
 given, granted, devised to or settled on g^jj/g^^^j 
 a woman, either with or without the inter- 
 vention of trustees, whether after marriage, 
 or as a provision on marriage, or not in 
 contemplation of immediate marriage, and 
 whether by her husband, or by a mere 
 stranger, it will: be deemed separate estate, 
 if it clearly appears that the property was 
 
 {a) On this subject see Hulme v. Tenant, 1 Lead. Cae. 
 Eq. 2d ed. .394 et seq. 
 
452 MARRIED WOMEN. 
 
 Tit. V. 
 Cap. III. 
 
 intended for her separate use. (St. § 1380, 
 SEc^ii. j38i^ 1334. 2 Sp. 502, 507—511; Goulder 
 V. Camm, 1 D. F. & J. 146.) Thus a bequest 
 to a married woman, "for her own use, and 
 at her own disposal," has been held to be a 
 bequest to her separate use. So money paid 
 to the husband "for the livelihood of the 
 wife " has been construed a gift to her sep- 
 arate use. (St. § 1382; 2 Sp. 507.) But 
 where the expressions do not clearly show 
 that the husband is to be excluded from his 
 marital rights, the wife will not take for 
 her separate use. Thus, in the case of a 
 direction to pay money into her own proper 
 hands "for her own use and benefit," it 
 has been held that although the money is 
 to be for her own use, yet there is nothing 
 in that inconsistent with its being subject 
 to the husband's marital rights. (St. § 
 1383; 2 Sp. 508— 511.) And a direct gift 
 to a woman who is either single or will be- 
 come discovert on the testator's death, for 
 her sole use and benefit, does not create a 
 separate estate, (^Gilbert v. Lewis, 1 D. J. & 
 S. 38; and see Lewis v. Mathews, L. R. 1 Eq.. 
 Gas. 177,) unless aided by other expressions 
 in the will or other circumstances; such as 
 the fact that the instrument shows that the 
 
MARRIED WOMEN. 453 
 
 marriage of the person spoken of was eon- (^^"-jY; 
 templated by the author of it. (Zft re Tas- sb&ui. 
 sey's Trust, L. E. 1 Eq. Oils. 561.) But a gift, 
 by way of trust, for her sole benefit, to a 
 married woman, does create a separate es- 
 tate. (Green v. Britten, 1 D. J. & S. 649.) 
 
 2. By the custom of London, a married 2. Bycarry- 
 ingonascp- 
 woman may carry on trade within the City, arate trade 
 
 •' •' •' ' in London; 
 
 as a sole trader, and be liable as such. But, or eveneisa- 
 
 ' ' where, by 
 
 independently of any such custom, if it is Slforemar- 
 agrced between the husband and wife, before "^^''' 
 marriage, that the wife shall be allowed to 
 carry on a separate trade, such an agreement 
 will be maintained at Law against the hus- 
 band; and being an agreement for valuable 
 consideration, namely, that of the intended 
 marriage, it will also be maintained at Law 
 against his creditors. And if such an agree- byagree- 
 
 ° ^ ment after 
 
 ment is made after marriage, and trustees marriage; 
 are interposed, it will be maintained at Law 
 against the husband; and if it is on valuable 
 consideration, against his creditors also; for, 
 in such case, the wife's trustees will, at Law, 
 be entitled to the property assigned, and to 
 the increase and profits thereof, and she will 
 be considered at Law as their agent, and her 
 possession as their possession. The trustees, 
 however, will be regarded in Equity as hold- 
 
454 MARRIED WOMEN. 
 
 clr ni ^"S ^^^^ property, and receiving the increase 
 sec^ii. jjjj^ profits thereof, for the sole and separate 
 use of the wife. And thus in such cases, 
 •where trustees are interposed, the beneficial 
 interest in the property, and the increase and 
 profits thereof, are secured to the wife by the 
 joint operation of Law and Equity. By the 
 operation of Law, the legal estate is vested in 
 the trustees, and taken out of the power of 
 the husband. By the operatiou of Equity, 
 the beneficial interest is vested in, and 
 secured to, the wife, against her husband, 
 and if the agreement is for valuable con- 
 sideration, against his ci-editors also. But 
 even where there are no trustees interposed, 
 such an agreement has the force, in Equity, 
 of creating a separate estate for the wife, 
 and securing it against the husband; and, if 
 even though the agreement is for valuable consideration, 
 
 the agree- . , , . , . , , .,,.., 
 
 ment be against his Creditors also. And this is the 
 
 merely im- 
 plied, ease even though it be a mere implied agree- 
 ment. So that if the husband should permit 
 Ills wife, after the marriage, to carry on busi- 
 ness on her sole and separate account, all her 
 earnings in the trade will be her separate 
 property. And if a husband should desert 
 his wife, and she should be enabled, by the 
 aid of her friends, to carry on a separate 
 
MARRIED WOMEN. 455 
 
 trade, her earnings in such trade will be ien- ^tit. v^ 
 forced in Equity against her husband, indo- seoiii.- 
 pendently of the stat. 20 & 21 Vict. c. 85, ss. 
 21, 25. (See St. § 1385—1387 ; 2 Sp. 503.) 
 
 3. By the stat. 20 & 21 Vict. c. 85, s. 21, 3. By an 
 
 order of pro- 
 
 and 21 & 22 Vict. c. 108, s. 8, if a wife is tection or 
 
 ' ' by a judicial 
 
 deserted by her husband, she may obtain an separation. 
 order of protection of her property against 
 her husband and his creditors; and by s. 25 
 of the former Act, if judicially separated, 
 she is to be deemed a feme sole as regards 
 her property ; (a) and in case of subsequent 
 cohabitation, it shall be held to her separate 
 use, subject to any agreement. 
 
 Where the property is vested in trustees, 
 care must be taken that the negotiations 
 are not carried on in the name of the wife, 
 as by taking notes or other securities in her 
 name ; for then they will, at Law, be held 
 to belong to the husband, although it will 
 be otherwise in Equity. (St. § 1386.) 
 
 II. As to the wife's power of disposing ii. wife's 
 
 Sower of 
 „x ^^^ .,^p«....v, „.. , r L- 0-— i=P°H°^ 0' 
 
 ■*■ sepurjitc 
 
 ments for securing to the wife separate per- ^'Jfreithas 
 sonal property, will confer on her, in Equity, * pr™i,u^ 
 unless the contrary is expressly stipulated mentr^"" 
 
 {a) See In re Imote, L. R. 1 Bq. Cas. 470. 
 
456 MARRIED WOMEN. 
 
 CAp'm ^'^ implied, the same power of disposing of 
 sec^ii. gmjjj separate property, by will or other- 
 wise, as an unmarried woman would have, 
 est. § 1390 ; 2 Sp. 506, 507.) 
 Where it With respect to her power of disposing 
 
 finniapoBt^ of her separate property, where no trustee 
 
 Duptia.1 , , . 
 
 agreement is interposed, and it rests merely on a post- 
 husband. nuptial agreement of the husband, if the 
 property consists of personalty, or an estate 
 for life in real property, her disposal thereof 
 can affect her husband's rights alone; and 
 therefore his assent is conclusive upon him. 
 And if real property is settled upon her in 
 fee in trust for her separate use, without any 
 special power of appointment, she may dis- 
 pose of or charge the rents and profits accru- 
 ing during her life. But it was formerly 
 held that she could only dispose of the in- 
 heritance by the ordinary means by which 
 married women dispose of their real prop- 
 erty; because, in regard to real estate, her 
 own heirs are or might be affected in their 
 interest by descent. (St. § 1391 ; 2 Sp. 504, 
 513 ; and see remarks of V. C. Kindersley, 
 in Moore v. Morris, 4 Brew. 37 — 8.) 
 wiioreitis And whero an estate of inheritance is 
 
 given by a 
 
 thirdperson given hor by a third person, during the 
 during the covcrturc, Or, as it seems, before coverture, 
 
 coverture. ' ' ' > 
 
MAERIED WOMEN. 457 
 
 for her separate use, it was formerly held ^tit. v.^ 
 that she could not dispose of it, except by Sec^™- 
 these means (that is, by a deed duly acknowl- 
 edged under the Fines and Recoveries Act), 
 or under a jjower; but that if such a power 
 is expressly given her, she might dispose of 
 the estate, even though there are no trustees 
 interposed. (St. § 1388, 1392; 2 Sp. 504, 
 507 ; Harris v. Mott, 14 Beav. 169 ; Lechraere 
 V. Brotheridge, 32 Beav. 353.) 
 
 It has been held, however, by Lord West- 
 bury, that she may, like a feme sole, by 
 virtue of her ownership, dispose, by deed or 
 will, of an estate of inheritance settled to 
 her separate use, even though a special 
 power of appointment be given her. {Tay- 
 lor V. Meads, 13 W. R. 394 (L. C.) ) 
 
 Where personal property, whether in 
 possession or reversion, or a life interest in 
 real property, is given by a third person, 
 for the separate use of a married woman, 
 she has, in effect, a full po.wer to dispose of 
 it, unless, from the words of the gift, it ap- 
 pears, beyond a reasonable doubt, to have 
 been the intention of the giver that this ab- 
 solute power should not exist. (See St. § 
 1393, 1394 ; 2 Sp. 513 ; Zechmere v. Brother- 
 idge, 32 Beav. 353.) 
 
 89 
 
458 MARRIED WOMEN. 
 
 „T". y. j^ mere isrohibition of alienation or anti-, 
 sec^ii. cipation is void as against a man, or a 
 
 Ssf °°' woman while she is unmarried. (See 2 Sp. 
 
 or'anticipa- 520.) And it is void when annexed to a 
 gift of real estate in fee or for life to a 
 woman, even though at the time married, 
 if such gift is not for her separate use. (See 
 2 Sp. 521.) But a gift cither of real estate, 
 whether in fee or for life, or of personal 
 estate,, to a woman for her separate use, 
 even though she be unmarried at the time, 
 may be accompanied by restrictions against 
 alienation or anticipation. (St. § 1382 a, 
 1384;,2 Sp. 511, 521, 522.) These, however, 
 will not be inferred from any ambiguous 
 expressions ; they must either bo contained 
 in express words or be deducible by plain 
 implication. (See 2 Sp. 512, 522; and re- 
 marks of V. C. Kindersley, in Moore v. Mor- 
 ris, 4 Drewry, 37.) 
 
 Operation The Bcparate-uso clause, either with or 
 
 of separate- , , . ... 
 
 use clause Without a restriction against anticipation, 
 
 and restric- 
 
 tioii against vf'iU be Confined to the then existing or then 
 
 aDtioipa- ° 
 
 tion. intended coverture, or will be also apj)lied to 
 
 other covertures, according to the apparent 
 
 intention. (2 Sp. 524; In re Gaffee, 1 Mac. 
 
 1 & Gord. 541 ; Moore v. Morris, 4 Drewry, 
 
 33.) If it appears to have been intended 
 
MARRIED WOMEN. 459 
 
 that every husband shall bo excluded, and ^'^'-j^j 
 that the clause against anticipation shall ^'^°- "^- 
 operate during every successive coverture, 
 in such case, although the woman, while 
 single, or when and as often as she becomes 
 a widow, has the absolute dominion over the 
 property, yet if she do not dispose of the 
 property so as to put an end to the trust, 
 and she marry again, the separate-use clause 
 and the restriction against alienation will be 
 revived during such and every other subse- 
 quent coverture, so long as the property is 
 held upon the original trust. (2 Sp. 524.)> 
 
 The Court of Chancery has no power to 
 release a separate estate from a restraint on 
 anticipation or alienation, even where it 
 would manifestly be for the benefit of the 
 married woman : as where a legacy of con- 
 siderable amount is given to her on condi- 
 tion that she convey away a separate estate 
 of inconsiderable value^ (^Robinson v. Wheel- 
 wright, 21 Beav. 214; 6 D. M. & G-. 535.) 
 
 Where the wife bestows her separate prop- Gifts to the 
 erty upon her husband. Courts of Equity tbo wife. 
 examine the transaction with an anxious 
 dread of undue marital influence ; and if 
 they are required to give sanction or effect 
 to it, they will examine the wife in Court, 
 
460 MARKIED WOMEN. 
 
 Tit. V an(j adopt other precautions to ascertain her 
 stajii." unbiased wishes. (St. § 1395; 2 Sp. 514.) 
 Husband's Where the husband, with the consent of 
 
 receipt of i i i . /» ■ • i ■ 
 
 the iucome. the wife, IS in the habit of receiving the in- 
 come of her separate estate, it is regarded 
 as showing her voluntary choice thus to dis- 
 pose of it for the benefit of the family; and 
 separate money of the wife paid to the 
 husband or placed to his account, by her 
 authority or with her concurrence, cannot 
 be recalled. (St. § 1396; 2 Sp. 514; 1 Lead. 
 Cas. Eq. 2d ed. 411 ; Catoh v. Bidout, 1 
 Mac. & Gord. 603; Gardner v. Gardner, 
 1 Giff. 126.) And the income of separate 
 estate, where the wife is of unsound mind, 
 will.be paid to the husband for her support, 
 if he is unable to maintain her. (2 Sp. 
 525.) 
 
 III. Lia- III. As to the liability of the wife's sep- 
 
 bilityof 
 
 separate arate estate to her contracts, debts, and 
 charges, except under the stat. 20 & 21 Vict, 
 c. 85, s. 26, a woman cannot render herself 
 or her property liable, at Law, for any con- 
 tract, debt, or other charge created by her 
 during the coverture, not even for neces. 
 saries. But a married woman having sepa- 
 rate estate (unless restrained from anticipa- 
 tion), being considered in equity as a feme 
 
 estate. 
 
MARRIED WOMEN. 461 
 
 Bole, as regards the separate estate, with j^it. v^ 
 respect to the capacity of enjoying it, she seohi. 
 is likewise considered as a feme sole with 
 respect to the capacity of charging the 
 estate with debts or engagements. N"o per- 
 sonal decree, however, can be made against 
 her : the Court can only affect her separate 
 estate in the hands of her trustees: she 
 cannot bind her person at all, or her prop- 
 erty generally, but only her separate prop- 
 erty. (St. § 1379, and note, and 1400, note; 
 2 Sp. 324, 325, 504, 515—518; see remarks 
 of Kindersley, V. C, in Vdughanv. Vander- 
 stegen, 2 Drewry, 179 — 184; Blatchford v. 
 Woolley, 2 Dr. & Sm. 204.) This will be held 
 liable for all the debts, charges, and incum- 
 brances which she expressly charges, or 
 which, judging from the nature thereof, it 
 may be fairly inferred that she intended to 
 charge on her separate estate, and for her 
 breaches of trust, unless restrained from an- 
 ticipation. (^Glive V. Carew, 1 Johns. & Hem. 
 199 ; and see Johnson v. Gallagher, 3 D. F. & 
 J. 494 ; In re Leeds Banking Co., L. E, 3 Bq. 
 Gas. 781.) And hence, if she gives a prom- 
 issory note, or an acceptance, or a bond to 
 pay her own debt, or if she joins in a bond 
 with her husband, to pay his debts, without 
 
 39* 
 
462 MARRIED WOMEN. 
 
 ci'p'iii reference to her separate estate, it shall be 
 sec^ii. intended as an application pro tanto of her 
 separate estate ; because the security must 
 have been executed with the intention that 
 it should operate in some way, and it can 
 have no operation except as against her 
 separate estate. And if she employs a law- 
 yer, upon her own responsibility, her sepa- 
 rate estate will be liable, from the nature of 
 the engagement. But it would seem that 
 her separate estate would not be liable for 
 debts of an ordinary character, for which 
 she gives no security, unless, at least, she is 
 divorced and living apart from her husband. 
 For she may, and in general must, be pre- 
 sumed to have intended that these should 
 be paid by her husband. If, indeed, the 
 contrary doctrine were held, a wife who has 
 a separate estate would in many cases be 
 disinclined to take upon herself her ordi- 
 nary domestic duties, fearing lest her sepa- 
 rate estate should be exhausted by defray- 
 ing the ordinary expenses of the house: or 
 the creation of a separate estate would often 
 be rendered unavailing, by her encountering 
 that risk. And in no case will the Court 
 charge the corpus of the separate estate in 
 respect of her general obligations. (See St. 
 
MARRIED WOMEN. 463 
 
 § 1398—1401, and notes ; 2 Sp. 515, 516, and t<t. y 
 
 ' ^ ' ' Cap. III. 
 
 notes.) Unless contrary to the deed of set- seohi. 
 tlement of the company, a married woman 
 may be a shareholder in a joint-stock com- 
 pany in her own right, so as to bind her 
 separate estate. (In re Leeds Banking Co., 
 L. E. 3 Eq. Cas. 781.) 
 
 It has been held that where a married 
 woman has a life interest to her separate 
 use, with a general power of appointment 
 by will over the remainder, she does not, by 
 exercising the power, make the remainder 
 applicable to the discharge of such engage- 
 ments as would bind her separate prop- 
 erty, unless she has been guilty of fraud. 
 (Vaughan v. Vanderstegen, 2 Drewry, 165, 
 363; Hobday v. Peters (No. 2), 28 Beav. 354; 
 Blatchford v. Woolley, 2 Dr. & Sm. 204; 
 Shattock V. Shattock, L. E. 1 Eq. Cas. 182.) 
 
 Section IV. 
 The Wife's Equity to a Settlement or Mainte- 
 nance out of her own Property, (a) 
 Trustees of a married woman's personalty Sec, iv. 
 
 (a) On thia sutjeot, see Lady Elibanlc v. Mantolteu, &e. 
 1 Lead. Cas. Bq. 2d ed. 341 el seq. ; Glmves v. Pain, 1 D. 
 J. A S. 87. 
 
464 MAllRIBD WOMEN. 
 
 CAp'iTi ^^^ settled to her separate use, may pay it 
 
 se&j^v. over to her husband before Chancery pro- 
 
 tiusteesof eeedings are taken in respect of it. But, 
 
 personalty On the Other hand, they may refuse to pay 
 
 not seltled 
 
 tohersepa-it over to him, cven at his wife s request, 
 
 rate use. 
 
 unless he makes a settlement, when the 
 Court would require him to make one. 
 (Hill on Trustees, 409, 410, 415; Be Swan, 
 2 Hem. & Mil. 34.) 
 
 With regard to the cases where the Court 
 requires a settlement — 
 I. Equityof I. If the wife has real property, or the 
 
 the wife, 
 
 when de- absolutc interest in personal property (with 
 
 fendant, ' L r J \ 
 
 husband''^' the exception, perhaps, of a term of years), 
 which cannot be reduced into the possession 
 of the husband without a suit in Equity 
 (as where the legal property is vested in 
 trustees), and the husband applies to a 
 Court of Equity for the purpose of reducing 
 the property into his possession, the Court, 
 acting upon the maxim that be who seeks 
 equity must do equity, will not give it up to 
 him, without requiring him to make a suit- 
 able settlement on the wife, of a part of the 
 property, or of some other property, for her 
 due maintenance in case of her surviving 
 him (St. § 1404, 1405, 1410, 1418 ; 2 Sp. 
 482, 484 ; Buncombe v. Greenacre, 28 Beav. 
 
MARRIED WOMEN. 465 
 
 472; 2 D. F. & J. 509; Life Association of jTit. v^ 
 Scotland v. Siddell, 3 D. F. & J. 271), with a se£iv; 
 provision for the issue of the marriage (St. 
 § 1406 ; 2 Sp. 488), even though the prop- 
 erty is under £200 (In re Cutler, 14 Beav. 
 220 ; In re Kincaid's Trust, 1 Drewry, 326), 
 unless the wife and children are already 
 amply provided for under a prior settlement 
 (St. § 1416; Spicer v. Spicer, 24 Beav. 365), 
 or the right to the settlement is waived or 
 lost. (St. § 1418, 1419; infra,A1\.) In the 
 absence of a contract to that effect, an in- 
 adequate settlement, even before marriage, 
 of a part of her property, does not deprive 
 her of her right to a settlement out of the 
 residue of her property, though vested in 
 her at the time of the marriage. {Barrow 
 V. Barrow, 18 Beav. 529.) 
 
 This equity of the wife exists in the case 
 of a charge on land for her benefit, even 
 though there be a power of entry and re- 
 ceipt of the rents and profits. (Buncombe v. 
 Greenacre, 28 Beav. 472; 2 D. F. & J. 509.) 
 
 There are instances in which, for the pur- injunction 
 
 .01 .J. j_ against pro- 
 
 pose of enforcini; the wife s equity to a set- coedings in 
 
 ■t other 
 
 tlement, bills in equity have been entertain- courts, 
 ed to restrain the husband from having re- 
 course to his remedy in a Court of Common 
 
466 MARRIED WOMEN. 
 
 CAP^'iTi ^^'^ to reduce his wife's choses in action into 
 
 Sec. IV. 
 
 possession. (St. § 1403; 2 Sp. 429.) 
 
 Eefu.9aiof If the husband does not choose to make 
 
 the husband 
 
 to make a a Settlement OP provision for the wife, the 
 
 settlement. *■ ' 
 
 Court will not ordinarily take from him the 
 income and interest of his wife's fortune, so 
 long as he is willing to live with and main- 
 tain her, and there is no reason for their 
 living apart. Under such circumstances, the 
 Court secures the fund, so as to give her the 
 chance of taking it by survivorship, allow- 
 ing the husband, under its order, to receive 
 the income and interest, or a part of it at 
 least. (St. § 1415 ; see 2 Sp. 490, 491.) 
 II. Equity II. The assignees in bankruptcy or insol- 
 
 of the wile, ° I. J 
 
 S'lilt^as ■^''"'^y °f ^ husband, and also his assignees 
 hSiaud's*"^ for payment of debts due to his creditors 
 generally, are bound to make a settlement 
 on the wife out of her immediate choses in 
 action and immediate absolute equitable in- 
 terests in chattels personal assigned to them, 
 in the same way, and under the same cir- 
 cumstances, as he would be bound to make 
 one ; for it is a general principle that such 
 assignees take the property subject to all the 
 equities which affect the bankrupt or insol- 
 vent or general assignor. Such assignees 
 also take the properly subject to the wife's 
 
 as»iguees or 
 vendees. 
 
MARRIED WOMEN. 467 
 
 right of survivorship, in case the husband ^tit. v. 
 
 ^ ' Cap. III. 
 
 dies before the assignees have reduced her seo^v. 
 clioses in action and equitable interests into 
 possession. (St. § 1411, 1421 ; 2 Sp. 476.) 
 And even a specific assignee or purchaser 
 from the husband, for valuable considera- 
 tion, of her choses in action and equitable 
 interests, is bound to make such a settle- 
 ment. And no assignment of them will 
 convey any right to the assignee or pur- 
 chaser against the wife, if she survives her 
 husband, and they are not reduced into pos- 
 session in his lifetime. (St. § 1412; 2 
 Sp. 476; Scott V. Spashett,S Mac. & Gord. 
 604.) 
 
 There is this distinction, however, be- when an 
 
 ■ imiuediale 
 
 tween the case of the husband himself and provision is 
 
 ' required. 
 
 his specific assignees for valuable considera- 
 tion, on the one hand, and the case of his 
 assignees in bankruptcy or insolvency, or 
 assignees for payment of debts generally, on 
 the other hand: — in the case of the former, 
 it is only necessary that the provision for the 
 wife should commence from the death of her 
 husband ; but in the case of the latter, it is 
 necessary that the provision should com- 
 mence immediately, because the general as- 
 signment of his property renders him in- 
 
468 
 
 MAKRIBD WOMEN. 
 
 Tit. V. 
 Cap. III. 
 &EC. IV. 
 
 Refusal of 
 the as- 
 signees to 
 make a 
 settlement. 
 
 Reversion- 
 ary choses in 
 action, and 
 reversion- 
 ary equit- 
 able in- 
 terests in 
 
 , personal 
 
 ' chattels. 
 
 III. Equity 
 of the wife, 
 "when plain- 
 tiff, to a set>- 
 tlement, on 
 her hus- 
 band's 
 death, 
 bank- 
 ruptcy, or 
 insolveucy. 
 
 capable for a time, and perhaps forever, 
 of affording her a suitable support. (St. § 
 1421.) 
 
 If the assignees in bankruptcy, or other 
 general assignees claiming title under the 
 husband, refuse to make a settlement on the 
 wife, the like doctrine applies to them as to 
 the husband himself where he refuses to 
 make a settlement. (St. §1415; swpra, p. 466.) 
 
 The husband can sell the life interest of 
 his wife in personalty, and she has no equity 
 to a settlement as against the purchaser. 
 {Re Duffy's Trust, 21 Beav. 386.) 
 
 If the husband assigns his wife's rever- 
 sionary choses in action and other rever- 
 sionary equitable interests in personal chat- 
 tels, such assignment will not exclude her 
 right of survivorship, although she join in 
 the assignment; because the assignment, 
 from the nature of the thing, cannot amount 
 to a reduction into possession of such rever- 
 sionary interest, (a) (St. § 1413 ; 2 Sp. 476.) 
 
 III. Whenever the wife, as defendant, 
 would be entitled to an equity for a settle- 
 
 (a) For an article on the disposition of reversionary 
 interests of mnrried women in chattels personal, by the 
 writer of this Manual, see 10 Jurist, 231, 243. But see 
 2 Sp. 487, and cases there cited. And see stat. 20 & 21 
 Vict. u. 57. 
 
MARRIED WOMEN. 469 
 
 ment, out of her equitable interest, against q^^-^i 
 her husband or against his assignees, she ^™' ^^' 
 may assert it, as plaintiff or petitioner. (St. 
 § 1414; 2 Sp. 482, 484, 585; Walker v. 
 Drury, 17 Beav. 482 ; Gleaves v. Pain, 1 D. 
 J. & S. 87; Be Ford, 32 Beav. 621.) 
 
 IV. The Court has a full discretion as to iv. Amount 
 
 to be settled. 
 
 the amount to be settled, according to the 
 circumstances of each case. In the ab- 
 sence, however, of special circumstances, 
 the general rule or the common course has 
 been to settle about one-half on the wife 
 and her children. {Walker v. Brury 17 
 Beav. 482 ; Napier v. Napier, 1 Dru. & W. 
 410; Bagshaw v. Winter, 5 De G. & Sm. 
 466; McCormick v. Garnett, 2 Sm. & G. 
 37; 5 D. M. & G. 278; Smith v. Smith, 
 3 Gif. 121; Be Grove's Trust, 3 Giff. 583; 
 2 Spenee, 485; 1 Bright, Husband and 
 Wife, 241,) with remainder in default of 
 issue, to the husband. (Spirett v. Willows, 
 L. E. 1 Ch. Ap. 520 ; In re Suggiit's Trusts^ 
 L. E. 3 Ch. Ap. 215.) But where particular 
 reasons have occurred, the Court has fre- 
 quently settled the whole : as in Marshall v. 
 Fowler, 16 Beav. 249, where the husband had 
 taken the benefit of the Insolvent Debtors' 
 Act, and was moreover almost entirely de- 
 
 40 
 
470 MARRIED WOMEN. 
 
 clviii Pendent on charity; In re Kincaid's Trust, 
 se£iv; 1 Drew. 326; and Ward v. Yates, 1 Drew & 
 Sm. 80, where the husband was a bankrupt, 
 and the fund was under £200 — so small a 
 sum that it would not have been worth while 
 to have made any settlement at all, unless 
 the whole had been settled ; In re Cutler, 14 
 Beav. 220 ; Watson v. Marshall, 1 "Weekly 
 Eeporter, 523 ; Francis v. Brooking, 19 Beav. 
 347; Koeber v. Sturgis, 22 Beav. 588; Squires 
 v. Ashford, 23 Beav. 132 ; Buncombe v. Green- 
 acre, 29 Beav. 578 ; and Newman v. Wilson, 
 (So. 2), 31 Beav. 34, where the husband 
 was an insolvent debtor; in Scott v. Spashett, 
 3 Mae. & Gord. 599, where, besides other 
 special circumstances, the husband had re- 
 ceived about double the amount of the wife's 
 property under a previous order, and no 
 settlement had ever been made; and in 
 DunWey v. Dunkley, 4 De G. & S. 570; 2 D. 
 M. & G. 390; Vaughan v. Buck, 1 Sim. K S. 
 284; and Gent v. Harris, 10 Hare, 383, 
 where the husband had become bankrupt, 
 and had deserted his wife. 
 V. Substi- V. To avoid the expense of a settlement, 
 
 tute for a' , n \ 
 
 settlement, where the fund beloneine to the wife is 
 
 where fund ° ° 
 
 Is small. small, it will sometimes be ordered to be 
 brought into Court, or if already in Court, 
 
MARRIED WOMEN. 471 
 
 it will bo retained there, and the dividends Jit v. 
 
 ' Cap. III. 
 
 directed to be paid to the wife for her life, seotv. 
 {Bagshaw r. Winter, 5 De G. & Sm. 466; 
 Watson V. Marshall, 17 Beav. 363 ; Walker 
 V. Drury, lb. 482.) 
 
 VI. The Court will not insist on a settle- vi- wite'a 
 
 equity 
 
 mcnt on the wife, if at any time before a waived, 
 settlement under the decree is completed, or 
 at least before proposals are made under the 
 decree, the wife, by her consent given in open 
 Court or under a commission, agrees that 
 the absolute fund shall be wholly and. abso- 
 lutely paid over to the husband, except in 
 the case of a female ward of the Court of 
 Chancery who has married without its au- 
 thority. (St. § 1418 ; 2 Sp. 486, 488.) But 
 until a transfer to the husband has actually 
 been made, the wife can revoke her consent. 
 {Penfold V. Mould, L. E. 4 Bq. Cas. 562.) 
 
 The equity of the wife to a settlement may or lost, or 
 
 suspended. 
 
 be lost or suspended by her own misconduct. 
 Thus, if the wife (not being a ward of Court, 
 married without its consent) has been living 
 in adultery, apart from the husband, a Court 
 of Equity will not direct a settlement, on her 
 own application, as it otherwise would; be- 
 cause, by such misconduct, she has rendered 
 herself unworthy of the protection and favor 
 
472 
 
 MARRIED WOMEN. 
 
 Tit. V. 
 Cap. hi. 
 Sec. IV. 
 
 Waiver of 
 provision 
 for the 
 children. 
 
 of the Court. But, on the other hand, in 
 Bueh a case, a Court of Equity will not de- 
 cree such equitable property to be paid over 
 to the husband on his application; for when 
 the wife is living apart from him, he is at 
 no charge for her maintenance ; and it is 
 only in respect to his duty to maintain her 
 that the Law gives him her fortune. In 
 the case, however, of a female ward of 
 Court, married without its consent, the 
 Court will insist on a settlement, as a pun- 
 ishment to the husband for contempt of its 
 authority. (St. § 1419, and note, and 1419 
 a ; 2 Sp. 486.) And we must be careful to 
 distinguish an application which is grounded 
 merely on general principles of equity, and 
 an application grounded on positive vested 
 rights under a settlement, or under a valid 
 contract for a settlement made before mar- 
 riage. In the latter case, Courts of Equity 
 cannot refuse to protect or support those 
 vested rights on account of any misconduct 
 in the wife. (St. § 1420.) 
 
 We have seen that the Court, in making 
 a settlement on the wife, properly attends to 
 the interests of the children. But it must 
 be observed, that the Court attends to their 
 interest only upon the supj)osition, that, in 
 
MARRIED ■WOMEN. 473 
 
 80 doing, it is carrying into effect her own ^tit. v^ 
 desire to provide for her offspring. They Seo^v. 
 have no independent equity of their own; 
 for although the husband is under a moral 
 obligation to provide for them, yet he is not 
 bound to provide for them, in any particular 
 way or out of any particular fund. They 
 have only a claim to the consideration of the 
 Court, con sti tuting part of th e equity of th eir 
 mother, and capable of being either expressly 
 given up by her before the amount is ascer- 
 tained, or tacitly waived by her dying with- 
 out having asserted it. (See St. § 1417 ; 2 
 Sp. 488 — 492.) And it has been held that 
 if she dies before a decree, even without 
 waiving the right to a settlement, the chil- 
 dren cannot assert any claim. ( Wallace v. 
 Auldjo, 2 Dr. & Sm. 216;. 1 D. J. & S. 643.) 
 
 VII. By the Law of Scotland, a married vii. No 
 
 equity to a 
 
 woman has no equity to a settlement; and settlement, 
 
 ^ "^ ^ where par- 
 
 if husband and wife are domiciled in Scot- ^jf^f^.^J'^^ 
 land, she has no equity to a settlement '■» Scotland, 
 t^McGormick v. Garnett, 5 D. M. & G. 278), 
 even out of the produce of real estate in 
 England directed to be sold. {Hitchcock v. 
 Glendinen, 12 Beav. 534.) 
 YIII. Although Courts of Equity do not viii. 
 
 .... J Equity of 
 
 claim any general jurisdiction to decree a the wife to 
 
 40* 
 
474 MARRIED WOMEN. 
 
 Tit. y suitable maintenance for the wife, out of her 
 
 Cap. III. ' 
 
 sec^v. husband's property, where he has deserted 
 
 caso°of \he Or iH-treated her, yet, whenever the wife has 
 
 miscouduct any equitable property, even though it be 
 
 niptcy, or only for her life, within the reach of the 
 
 insolvency. 
 
 jurisdiction of Courts of. Equity, and the 
 husband has deserted or ill-treated or refused 
 to mantain her, they will decree a suitable 
 and immediate maintenance out of such 
 equitable property, or, if it has passed into 
 the possession of a bond fide purchaser with- 
 out notice, out of other property of the hus- 
 band ; because the obligation of maintaining 
 the wife is the ground on which the Law gives ■ 
 the projjerty to the husband. (St. § 1408, j)., 
 1408, note, 1422—1424, 1426.) And where 
 the wife has an equitable interest for life 
 only, and the husband is a bankrupt or in- 
 solvent, and therefore is, as a general rule, 
 deprived, for a time at least, of the means of 
 duly maintaining her, she is entitled to an 
 allowance for maintenance out of such life 
 interest, as against the assignees. (Story, § 
 1408 n., 1412.) But a married woman, even 
 though her husband does not maintain her, 
 is not entitled, as against aparticular assignee 
 for valuable consideration of the husband, to 
 an allowance for maintenance out of the in- 
 
MARRIED WOMEN. 475 
 
 come of real or personal estate to which she tit. y 
 
 ^ Cap. Ill 
 
 is entitled in equity, for- her life only; be- ^^±J^- 
 cause, if she were, purchasers would be in- 
 volved in inquiries respecting the relations 
 between husband and wife, and their other 
 property and sources of maintenance ; and 
 the life interests of married women would 
 become incapable of being dealt with, what- 
 ever might be the exigencies of the case. 
 (^Tidd V. Lister, 10 Hare, 151, 153; 3 D. M. 
 & G. 857.) 
 
 Section Y. 
 
 Some Miscellaneous Points, (a) 
 
 As a deed of separation cannot dissolve sec. v. 
 the marriage, it does not relieve the wife Deeds of 
 
 " ' separation. 
 
 from any of the ordinary disabilities of cov- 
 erture. (St. § 1428.) 
 
 A deed of separation entered into beitween 
 the husband and wife alone, without the in- 
 tervention of trustees, is utterly void. (St. 
 § 1428.) 
 
 A covenant for separation, whether imme- 
 diate' or future, is void. But the Court of 
 
 ia) See 2 Lead. Oas. Eq. 2cl ed. 713—717 et tef. 
 
476 MARKIED WOMEN. 
 
 Cap. Ill, 
 
 Sec. V. 
 
 Tit- Vj Chancery may compel parties, in pursuance 
 of articlesof separation entered into between 
 them, to execute a formal deed of separation, 
 quantum valeat, unless in the meantime they 
 agree to live together. And it would seem 
 that if a deed for immediate, and not for 
 future, separation, contains a covenant by 
 the husband to maintain his wife, and a 
 covenant by the trustees to exonerate him 
 from any debts contracted for her mainte- 
 nance, such covenant will be enforced, so 
 long as the separation last; but it will not 
 be enforced for a longer period, even as to 
 past separation. (St. § 1428; 2 Sp. 528; 
 Wilson V. Wilson, 1 H. L. Cas. 538; 5 Id. 
 51, 61, 62.) 
 
 A contract in a separation deed cannot 
 affect the property of the wife, if not settled 
 to her separate use, or reduced into posses- 
 sion during the coverture. (2 Sp. 532.) 
 
 'rhe Court will not directly or indirectly 
 enforce a separation against the parties per- 
 sonally. But the Court will interfere to pre- 
 vent the doing of any personal acts, which, 
 if done, would be in violation of an agree- 
 ment respecting property entered into on the 
 separation. And where, by articles of sepa- 
 ration, it is agreed that the hiisband shall 
 
MARRIED WOMEN. 477 
 
 permit his wife to live separate, and as if ^^-^j 
 unmarried, without any molestation, inter- SboV. 
 ference, or annoyance whatever, and that a 
 proper deed shall be executed for eifectuat- 
 ing the object of the articles, and containing 
 all such covenants, &c., as shall be deemed 
 expedient for that purpose, this justifies the 
 insertion in the deed, of a covenant that the 
 husband will not compel, or endeavor to com- 
 pel, the wife, by legal proceedings or other- 
 wise, to cohabit or live with him ; but in 
 what way or to what extent such a cove- 
 nant can be enforced, appears not to be set- 
 tled. (2 Sp. 532 ; Wilson v. Wilson, 1 Ho. 
 of Lords, 538 ; 5 Id. 40, 51, 52, 60—63, 71, 
 72; Sanders v. Rodway, 16 Beav. 207; and 
 see remarks of V. C. Wood, in Stocker v. 
 Wedderburn,3 K. & J. 403; Hunt v. Sunt, 
 31 Beav. 89 ; 10 W. E. 215.) 
 
 Eeconciliation puts an end to a deed of 
 separation, as it must not be permitted to 
 parties to make agreements for thenlselves 
 to hold good whenever they choose to live 
 separate. (2 Sp. 532.) 
 
 If a wife induces her husband to execute 
 a deed of separation, in contemplation by her 
 of her renewal of an illicit intercourse, the 
 
478 MARRIED WOMEN. 
 
 pTiT. v^ deed is void. {Evans v. Carrington, 2 D. P. 
 SK_v.- &j. 481.) 
 
 Non-dis- JSTon-discloBure of ante-nuptial ineonti- 
 
 closure of 
 
 ante-nup- nencG on the part of a wife is not such a 
 
 tial lEcon- ^ 
 
 tiueuce. fraud upon the husband as to entitle him to 
 set aside a settlement made upon the mar- 
 riage. (Evans v. Carrington, 2 D. . P. & J. 
 481.) 
 Benefits The Court of Chancery has no jurisdiction 
 
 settlement to deprive an adulteress, whose marriage has 
 
 not forfeited 
 
 by adultery, been dissolved, of any benefit under the set- 
 tlement made upon the marriage. (Evans 
 V. Carrington, 2 D. P. & J. 481.) 
 
 Purchase. Where a married woman contracts and 
 pays for real estate without the knowledge 
 of her husband, but for his benefit, such a 
 purchase is binding when ratified by the hus- 
 band. (Millard v. Harvey, 34 Beav. 237.) 
 
 Fraud. A woman, although married, cannot, by 
 
 fraud, obtain for herself or those claiming 
 under her any benefit or interest to the det- 
 riment of any other person. (V. C. Wood, 
 in Nicholls v. Jones, L. E. 3 Eq. Gas. 709.) 
 
TITLE VI. 
 
 ®f an^eiliars €qmtn. 
 
 (479) 
 
( 480 ) 
 
 CHAPTBE I. 
 
 Tit. VI. 
 Cap. I. 
 
 Definition 
 ofabillof 
 discovery. 
 
 OP A DISCOVERY IN AID OF A SUIT OR 
 DEFENCE IN ANOTHER COURT. 
 
 Every bill which requires an answer is in 
 a certain sense a bill of discovery. But a bill 
 of discovery, technically so called, is a bill 
 which asks for no relief, but simply seeks a 
 discovery of facta resting in the knowledge 
 of the defendant, or of deeds or writings or 
 other things in the possession or power of 
 the defendant, in order to maintain the right 
 or title of the party asking it, in some suit or 
 proceeding in another Court. (St. § 1483.) 
 Discovery It is immaterial whether the Court be 
 
 iu aid of a 
 
 foreign suit, situate m the same country, or in a foreign 
 
 country in amity with the country where 
 
 or a suit not the bill is filed. (St. § 1495.) And it is not 
 
 yet com- 
 
 necessary that the suit should be already 
 commenced, to which the bill of discovery is 
 to be auxiliary, if the discovery is indispen- 
 sable, in order to enable the party rightly to 
 proceed. (See St. § 1483, 1495.) 
 
 menccd. 
 
DISCOVERY. 481 
 
 These bills, however, may be resisted on tit. vi. 
 the following grounds: 1. That the subject jji^—^y 
 is not cognizable in any municipal Court. sTtedon"" 
 2. That the Court will not lend its aid to g?Ss. 
 obtain a discovery for the particular Court 
 for which it is wanted. 3. That the plaintiff 
 is not entitled to the discovery, by reason of 
 some personal disability. 4. That the plain- 
 tiff has no title to the character in which he 
 sues. 5. That the value of the thing sued 
 for is beneath the dignity of the Court. 
 
 6. That the plaintiff has no interest in the 
 subject-matter or title to the discovery re- 
 quired (St. § 1489, 1490); as where the 
 plaintiff is only heir apparent. (St. § 1490.) 
 
 7. That the defendant is not answerable to 
 the plaintiff, but that some other person has 
 a right to call for the discovery. 8. That 
 the policy of the Law exempts the defend- 
 ant from the discovery (St. § 1489); as if a 
 bill of discovery is filed against a married 
 woman, to compel her to disclose facts which 
 may charge her husband ; or where the bill 
 seeks to compel a counsel or solicitor to dis- 
 close the secrets of his client. (St. § 1496.) 
 9. That the discovery relates to the defend- 
 ant's case, and not to the plaintiff's case. 
 (St. § 1489, 1490, note.) So that even an heir- 
 
 41 
 
482 DISCOVERY. 
 
 Cap ^7' ^t-l^w ^^^ i^ot ^ right to the inspection of 
 deeds in the possession of a devisee, unless 
 he is an heir in tail ; in which case he is en- 
 titled to see the deeds creating the estate 
 tail. (St. § 1491, 1492.) But if a bill filed 
 by a defendant at law suggests specific 
 defects in the title of his adversary, the 
 discovery will be granted, although the case 
 made by the bill is not the assertion of an 
 aflS^rmative title in the party bringing the 
 bill. (St. § 1493 a, note.) 10. That the dis- 
 covery is not material in the suit. (St. § 
 1489, 1497.) 11. That the defendant has no 
 interest in the suit, but is a mere witness 
 (St. § 1489, 1499); unless the bill charges 
 him with fraud ; as in the case of an attor- 
 ney who has assisted a client in obtaining a 
 fraudulent deed (St. § 1500); or unless he is 
 the officer of a corporation ; in which case 
 he may be made a party to a bill for discov- 
 ery against such corporation, on the ground, 
 it has been said, that a corporation, being 
 an artificial person, cannot be compelled to 
 make any discovery on oath. (St. § 1501.) 
 12. A discovery may in general be resisted 
 where it would disclose circumstances that 
 would subject the defendant to a penalty or 
 forfeiture, or to a criminal prosecution, or 
 
DISCOVERY. 483 
 
 to ecclesiastical censures. To this rule, tit. vi. 
 
 ' Cap. I. 
 
 however, there are various exceptions ; as — 
 in the ease of fraud or conspiracy, or a 
 statutory prohibition of resisting a discov- 
 ery, or an expressed or implied contract not 
 to resist discovery. (See St. § 1494, and 
 note, and vStory's Eq. Plead, c. xi. and 1 
 Dan. C. P., 2d ed. by Headlam, 517—525.) 
 13. A discovery may also be resisted on the 
 ground that it is perfectly clear that the 
 action or defence is not maintainable at 
 Law. (St. § 1493 a.) 14. That the Court 
 where the suit is brought has always had 
 the power of eliciting the facts without the 
 aid of a bill of discovery. (St. § 149&,) But 
 although a party may now examine his op- 
 ponent at law under the Stat. 14 & 15 Vict, 
 c. 99, s. 2, and under the Stat. 17 & 18 Vict. 
 c. 125, s. 51 — 54, and the Courts of Common 
 Law can now compel the production of 
 documents under the 6th section of the 
 former Act and the 50th section of the 
 latter Act, yet a plaintiff or defendant at 
 law is entitled to- a discovery in Equity in 
 aid of his action or defence. (^Lovell v. Gal- 
 loway, 17 Beav. 1; Senior v. Pritchard, 16 
 Beav. 473 ; British Umpire Shipping Com- 
 pany V. Somes, 3 K. & J. 433, 436.) 15. A 
 
484 DISCOVERT. 
 
 Tit. VI. discovery may also be resisted on the ground 
 
 Cap. I. J J ° 
 
 — that it is in aid of a controversy pending 
 before arbitrators, who, not being the reg- 
 ular tribunals for administering justice, but 
 judges of the party's own choice, must sub- 
 mit to the inconvenience incident to their 
 position. (St. § 1495.) But this has no 
 application to a compulsory arbitration or- 
 dered in an action. (^British Empire Ship- 
 ping Company v. Somes, 3 K. & J. 433, 436.) 
 16. In general, arbitrators are not compel- 
 lable to disclose the grounds on which they 
 made their award. (St. § 1498.) 17. That 
 the defendant is a bond fide purchaser lor 
 valuable consideration, and without notice, 
 who has paid his purchase-money, and has 
 an equal equity with the plaintiif (St. § 1502, 
 1503); or that the defendant is a sub-pur- 
 chaser, whether with or without notice, from 
 such bona fide purchaser without notice. (St. 
 § 1503 a.) But a judgment creditor by 
 elegit is not deemed a purchaser within the 
 above rule. (St. § 1503 b.) 18. A jointress 
 is entitled to protect herself against a dis- 
 closure of her jointure deed, if the party 
 seeking the discovery is not capable of con- 
 firming the jointure, or if, being .capable, - 
 he does not offer to confirm it. If he is 
 
DISCOVERY. 
 
 485 
 
 capable and offers to confirm it, the dis- '^,5JpY' 
 covcry will be granted as soon as the con- 
 firmation is made, but not before; for other- 
 wise it might happen, that after the dis- 
 covery, his offer might become ineffectual 
 by the intervention of other interests. (St. 
 § 1054.) 
 
 41» 
 
( 486 ) 
 
 CHAPTEE II. 
 
 OF THE TAKING AND PRESERVING OJP TESTI- 
 MONY IN AID OF A SUIT OR DEFENCE IN 
 ANOTHER COURT. 
 
 Tit. VI. One species of bill filed for this purpose is 
 —1- ' a bill to perpetuate testimony. This is a 
 
 Bill to per- i . i . ^ i i 
 
 potuatetos- bill 'which 18 filed to preserve testimony, 
 
 tiinony. 
 
 when it is in danger of being lost, before 
 the matter to which it relates can be made 
 the subject of judicial investigation. (St. § 
 1506.) Thus, when the plaintiff's title is 
 in remainder, or when he himself is in actual 
 possession of the property, or when he is in 
 present possession of the rights which he 
 seeks to perpetuate by proofs, he is neces- 
 sarily unable to bring his disputed interest 
 into immediate judicial investigation; and 
 therefore Courts of Equity will entertain a 
 suit to secure the proofs on which his title 
 depends; for otherwise such proofs might 
 bo lost by the death of his witnesses, and 
 the adverse party might purposely delay his 
 
TAKING AND PRESERVING TESTIMONY. 487 
 
 suit with a view to that very event. (St. Tn\ vi. 
 § 1508; Ellice v. Boupell (No. 1), 32 Beav. — ' 
 299; S. C. (No. 2) 32 Beav. 308; S. C. (No. 
 3) 32 Beav. 818.) An instance of this occurs 
 where a devisee, in order to perpetuate the 
 testimony of witnesses to the will, exhibits 
 a bill against the heir, setting forth the will 
 verbatim, and suggesting that the heir is 
 inclined to dispute its validity ; and then, 
 when the cause is at issue, witnesses to the 
 will are examined, after which the cause is 
 at an end; but the heir is entitled to his 
 costs, even though he contests the will. 
 This is what is usually meant by proving a 
 will in Chancery. (St. § 1506 ) 
 
 Such a bill cannot be brought by a defend- 
 ant to a suit already commenced, though 
 he cannot himself put the matter into a 
 course of judicial investigation, and yet the 
 plaintiff may dismiss his bill, and then file 
 a new bill when the witnesses are dead, 
 whose testimony it is the interest of the 
 defendant to perpetuate. {Earl Spencer v. 
 Peck, L. E. 8 Bq. Cas. 415.) 
 
 Gourts of Equity will not perpetuate tes- 
 timony in support of a right which may be 
 barred by the defendant. (St. § 1511.) 
 
 Such a bill may be filed in relation to 
 
488 TAKING AND PRESERVING TESTIMONY. 
 
 ^iT. vi: mere personal demands, and even in eases 
 — of penalty or forfeiture. (St. § 1509.) 
 Bill to take Another kind of bill of a similar character, 
 
 testimony 
 
 debeneesse. but founded on distinct circumstances, is a 
 bill to take testimony de bene esse, which is 
 one that is filed to preserve testimony re- 
 specting a vested interest in the plaintiff, 
 which is the subject of an action or suit 
 already commenced, and which depends on 
 the testimony of a single witness, or on the 
 sole testimony of aged or infirm persons, or 
 on testimony that cannot be given viva voce 
 in the ordinary way. Thus, an order will 
 be made to take the testimony of persons 
 who are seventy years of age, or of persons 
 who are unable to travel, or of those who 
 are going abroad and likely to die before the 
 time of the trial. And the Court will even 
 entertain a bill to preserve the testimony of 
 a witness who is capable of attending, if he 
 is a single witness to an important fact in 
 the cause. (St. § 1513, 1514. See Judgment 
 in Earl Spencer v. Peck, L. E. 3 Bq. Cas. 421.) 
 
 When a bill Where a person is able to bring a matter 
 
 to take and . .,..,. 
 
 prescrvetes- into immediate iudicial investigation, and 
 
 timony will ■' ° ' 
 
 t°rtained' ^^^ ^^ ^^^ ^'^^ Commenced any suit, the 
 Court will not entertain a bill of any kind 
 to take and preserve testimony in his favor. 
 
TAKINfl AND PEESERVING TESTIMONY. 489 
 
 For, if, in sach ease, the evidence may be "^^^^ "^p 
 procured viva voce in the ordinary way, there 
 is no need whatever of having recourse to 
 written depositions in place of viva voce evi- 
 dence. (St. § 1508 ; Mlice v. Eoupell (No. 1), 
 32 Beav. 299; S. 0. (ISTo. 2) 32 Bcav. 308; 
 S. C. (No. 3) 32 Beav. 318.) And even if the 
 evidence cannot be procured in the ordinary 
 w-ay, yet a bill to take the testimony de bene 
 esse will not be entertained except in aid 
 of a suit already commenced ; because if it 
 were, the plaintiff in the bill, having obtained 
 the written testimony of his own witnesses, 
 might delay his action until their death, so 
 that they might be guilty of the grossest 
 perjury, and yet go unpunished, and also 
 until the death of those witnesses for the 
 adverse party who were able to give their 
 testimony in the usual way, and thus the jus- 
 tice of the case might be entirely defeated. 
 (See St. § 1508 and note, and 1513 note.) 
 
 Commissions to take the testimony of 
 witnesses abroad, although confined to civil 
 actions, are grantable in cases of civil tort, 
 such as libel. (St. § 1515.) ,,, , 
 
 When dtipo- 
 
 Bven where an order is made to take the jit'^s 
 
 taken on 
 
 written depositions of witnesses, on a bill to ^i^'nou,! 
 perpetuate testimony, or to take testimony usdd^ '"^ ^"' 
 
490 TAKING AND PEESERVING TESTIMONY. 
 
 Cap Ii' '^^ ^^"^ ^^*^' ^^'^ evidence so taken must not 
 be used, if the witnesses are alive, and capa- 
 ble of attending, and within the jurisdiction 
 at the time of the trial. (St. § 1507, 1508, 
 note, 1512, 1513, note, and 1516, note,) 
 
INDEX. 
 
 A. 
 
 ABATEMENT, 
 
 of debts and legacies, 268. 
 
 ACCIDENT, 
 
 delinition of, 36. 
 
 remediable at law, 36, 
 
 not remediable at law or in equity, 36. 
 
 remediable in equity, 39. 
 
 arising from neglect, 36. 
 
 preventing fulfilment of engagement, 37. 
 
 to property in lease, 37. 
 
 death of vendor before receipt of annuity, 37. 
 
 defective execution of a will, 38. 
 
 defective execution or non-execution of a power, 42. 
 
 loss of deeds, 39. 
 
 loss of bonds and unsealed securities, 41, 42. 
 
 ACCOUNT, 260. 
 
 settlement of £(ccounts, 260. 
 
 open accounts, 261. 
 
 stated accounts, 261. 
 
 settled accounts, 262. 
 
 appropriation of payments, 264. 
 
 agency, 362. 
 
 mesne profits, 362. 
 
 waste, 363. 
 
 tithes and moduses, 363. 
 
 ACQUIESCENCE, 
 
 in a breach of trust, 211. 
 
 ACTION, THIN&S IN, 
 assignment of, 242. 
 
 ADEMPTION, 
 
 of portions unden a settlement, 379. 
 
 (491) 
 
492 INDEX. 
 
 ADEMPTION— (contiiiMe^). 
 of legacies to a child, 381 . 
 no ademption of legacies to strangers, 382. 
 
 ADMINISTBATION, 
 jurisdiction as to, 265. 
 bill by executor or administrator, 265. 
 bill or summons bj- creditors, 206. 
 division of assets, 267. 
 definition of legal assets, 267. 
 definition of equitable assets, 267. 
 of legal assets, 268. 
 of equitable assets, 268. 
 order of administration of different properties, 
 
 in payment of debts, 270. 
 
 in payment of legacies and annuities, 271. 
 order of satisfaction, 281. 
 marshalling of assets, 284. 
 in the case of charitable legacies, 288. 
 foreign assets, 291. 
 
 ADVANCEMENT, 172. 
 
 ADVISER, 
 
 fraud of a confidential, 78. 
 
 ADVOWSON, 
 
 mortgage of, 301. • 
 
 AGENCY, 362, 403. 
 
 AGENT, 
 
 fraud of an, 81. 
 
 sales and purchases by, 81. 
 
 liability to account, 264. 
 
 AGREEMENT. See Fratjd— Specific Pekfoemance. 
 
 ALIENATION, 
 
 restraint on, 458. 
 
 ANNUITY, 
 
 not a satisfaction, 386. 
 
 ANTICIPATION, 
 
 restraint on, 458. 
 
INDEX. 493 
 
 APPOINTMENT. See Powers. 
 fraudulent, 106. 
 election, in ease of an, 372. 
 satisfaction by an, 387. 
 
 APPORTIONMENT, 340. 
 
 APPRENTICE FEE. 
 apportionment of, 840. 
 
 APPRENTICESHIP. 
 
 specific performance of articles of, 227. 
 
 ARBITRATION, 
 
 interference of equity in regard to, 251. 
 
 ASSETS. See Administeatioit. 
 
 ASSIGNMENT, 
 
 right to call for, 27. 
 
 for benefit of creditors, 136. 
 
 in another's name, 171. 
 
 against public policy, 238. 
 
 of pay, pensions, or prize-money, 238-9. 
 
 of pretended titles, 239. 
 
 of mere naked rights to litigate, 249. ., 
 
 of possibilities, or thincrs inaction, 242. L.^ji , ?* A T 
 
 what amounts to an, 244. (?Wt^ 1^ fjfU^n^^ JM 
 
 what must be done to^pbtain quasi possession under an 
 assignment,-247. Y^-<rfe<.t, / , ^U^, Joy 
 
 of mortgage, 328. ) ' ' / 
 
 suit against equitable assignee of a legal term, 250. 
 
 of power, 393. ^^/^ ^ ./ ^ ' ,, , , " 
 
 AUCTIONEERS, ^l^f^l^^.H. / 
 
 purchases by, 84. 
 
 AUCTIONS, 
 frauds on, 93. 
 
 AWARDS, 
 
 not compelled, 251. 
 
 B. 
 BANKRUPTS, 
 
 commissioners, solicitors, and assignees becoming pur- 
 chasers, 84. 
 
 42 
 
494 INDEX. 
 
 BILL IN PAELIAMENT, 
 fraud in relation to, 74 
 
 BILL OF EXCHANGE,- 
 destruction of, 42. 
 
 BILLS OF PEACE, 406. 
 
 BONDS, 
 lost, 41. 
 post-obit, 89. 
 assignment of, 247. 
 delivery up of, 400. 
 
 BOUNDARIES, 
 
 settlement of, 391. 
 
 BREACH, 
 
 of trust. See Teust, Trustees, Execittobs. 
 
 C. 
 
 CANCELLING, 396-7. 
 
 CARGO, 
 
 assignment of, 244. 
 
 CHAMPERTY, 74, 239. 
 
 CHARGE, 
 
 what debts included, 167. 
 
 trust created by, 165. 
 
 devise charged with or subject to charge of debts, 166. 
 
 ofdebts, 165— 170. 
 
 of legacies, 167. 
 
 mode of giving effect to, 169. 
 
 CHARITIES, 
 
 jurisdiction as to, 149. 
 
 favored in regard to the want of proper trustees, 149. 
 
 defects in conveyances, 150. 
 
 the objects, ICO. 
 
 surplus income, 152. 
 
 lapse of time, 153. 
 
 Stat. 27 Eliz. c. 4, 102. 
 abroad, 153. 
 
 reward to informers as to, 153. 
 altering a charity, 154. 
 
INDEX. 495 
 
 CHATTELS, 
 
 delivery of, 427. 
 
 CHILDEEJT. See Infants. ' 
 
 what children to be included, 112. 
 
 construction of provisions for younger children, 115. 
 
 removal of children from their parents, 432. 
 
 waiver of provision for, 473. .^ 
 
 frauds on, 76. pn > , , , . "? ' > 
 COLONIAL, ' ■*-" 
 
 property or contracts, 29. 
 
 COMMISSIONERS OF BANKRUPTS, 
 purchase by, 84. 
 
 COMMON, 
 
 bill to establish a right of, 407. 
 
 COMPENSATION, 
 old rule as to, 364. 
 
 Stat. 21 & 22 Vict. c. 27, s. 1, as to damages, 364. 
 to a defendant,, 363.' 
 
 relief against penalties and forfeitures, 365. 
 no relief against liquidated damages, 367. 
 for a breach of covenant or condition, 368. 
 relief against statutory penalties or forfeitures, 369. 
 
 COMPROMISE, 47. 
 
 CONCEALMENT, 61, 91, 95. 
 
 CONDITION, 
 
 gift with an illegal condition, 157. 
 relief against breach of, 365. 
 
 CONFIRMATION, 
 
 distinction between void and voidable transactions, as 
 regards confirmation, 75. 
 
 CONSENT, 
 
 refusal of consent to a marriage, 66. 
 
 CONSIDERATION. See Fbaud. 
 inadequate, 64. 
 excessive, 89. 
 conveyance without consideration, 102 — 5, 155, 157. 
 
496 INDEX. 
 
 CONSIDERATION— (co?jtiT!i(C(J). 
 
 agreement not generally enforced in the absence of a 
 valuable consideration, 135, 231. 
 
 CONSIGNMENT, 
 
 revocableness of, 139. 
 
 CONTINGENT INTERESTS, 
 assignment of, 244. 
 
 CONTINGENT REMAINDERS, 
 trustees to support, 217. 
 
 • CONTRACT. See FKAtrD— Spkcific Performance. 
 
 CONTRIBUTION. See Iitcumbrastces. 
 towards incumbrances, 343. 
 towards charges of renewal of leaseholds, 345. 
 between sureties, 345. 
 towards a loss or expense in a voyage, 347. 
 
 CONVERSION, 
 
 change in the character of property by agreement or 
 
 direction to convert, 25, 226. 
 undisposed of produce of real estate, 161. 
 undisposed of part of mixed fund, 163. 
 undisposed of part of money directed to be converted, 
 
 or of the produce thereof, 164. 
 failure of objects for, 164. 
 of determinable or reversionary property, 201. 
 time allowed for, 202. 
 of infant's property, 432. 
 
 CONVEYANCE, 
 
 with notice of another's title, 08. 
 
 without consideration, and without use or trust, 157. 
 
 in another's name, 157, 172. ^ 
 
 right to call for, 27. 
 
 COPIES, 
 
 of deeds, 400. 
 
 COPYRIGHT, 
 
 injunctions to restrain infringements of, 420. 
 
 COSTS, 
 
 mortgage for, 323. 
 
INDEX. 497 
 
 COUNSEL, 
 
 purchase by, 84. 
 
 COVENANT, 
 
 where distributive share is a satisfaction of an obliga- 
 tion by, 29. 
 
 must be fulfilled, notwithstanding accident, 37. 
 
 to purchase, lands, 175. 
 
 to leave property, 95. 
 
 to settle lands, 176. 
 
 to convey, transfer, or pay money or other property, 179. 
 
 to settle, charge, dispose of, or affect after-acquired 
 property, 243. 
 
 where relief is granted as to a breach of, 368. 
 
 CREDITORS. See Debtoe. 
 favored, 166. 
 purchases by, 84. 
 frauds on, 97. 
 frauds by, 84, 95. 
 assignments for benefits of, 136. 
 preferences of, 137. 
 
 payment of legatees or distributees before, 179. 
 where they cannot follow the assets, 212, 213. 
 bill or summons by, 266. 
 rights of joint creditors of a partnership, 352. 
 priority as between joint and separate creditors of 
 
 partnership, 352. 
 may proceed against a deceased partner's or joint 
 
 debtor's estate in first instance, 353. 
 election in the case of, 376. 
 legacies to, 384. 
 by, 385. 
 right to benefit of securities, 356. 
 right as against general appointee, 106. 
 
 CRIMINAL PROCEEDINGS, 
 suppression of, 74. 
 
 DAMAGES, 364. See Compensation. 
 
 DEBTOR. See Ckeditor. 
 
 frauds in the case of persons standing in the confi- 
 dential relation of debtor, creditor, and surety, 84. 
 
 42* 
 
498 INDEX. 
 
 DEBTOU— {continued). 
 legacies by, 384. 
 legacies to, 385. 
 
 direction to debtor to hold for a third person, 122. 
 proceedings against estate of deceased joint debtor in 
 the lirst instance, 353. 
 
 DEBTS. See Set-off. 
 
 what included in a cliarge, or trust, of power, for pay- 
 ment of debts, 107. 
 devise in trust to pay, 165 — 6. 
 devise charged with or subject to, 166. 
 indirect charge of, 166. 
 
 collateral securities for a debt assigned, 176. 
 due from executor, 188. 
 assignment of, 247. 
 payments to assignee of a debt, 250. 
 payment of mortgage debt, 278, 280, 324. 
 by breach of trust, 209, 211. 
 
 operation of Statute of Limitations as regards, 269. 
 executor personally liable for, 214. 
 abatement of, 268. 
 
 order of administration of different properties in pay- 
 ment of, 270, 
 marshalling of securities, 354. 
 
 DECLARATION, 
 
 of trust, 121, 131. 
 
 DEEDS. Sec Mistake. 
 
 destroyed, lost, or suppressed, 39. 
 production of, by mortgagee, 302. 
 cancelling, delivering up, and securing, 396. 
 inspection and copies of, 400. 
 
 DELIVERING IIP, 
 
 of documents, 396 — 400. 
 of chattels, 427. 
 
 DEPOSIT, 
 
 of documents, 426. 
 mortgage by, 326, 332—4. 
 
 DEVISEES. See Will. 
 
 under a will defectively executed, 38. 
 
INDEX. 499 
 
 DISABILITY. See Infants, Lunatics, Mareied 
 Women. 
 to contracts, 231. 
 election by persons under, 377. 
 
 DISCOVEEY, 480. 
 
 DISTBIBUTITE SHARE, 
 
 ■where a satisfaction of a covenant, 29. 
 
 DOCTOR, 
 
 fraud of a, 81. 
 
 DOCUMEITTS, 
 
 cancelling, delivering up, and securing, 396. 
 inspection and copies of, 400. 
 deposit of, 426. 
 
 DOMICILE, 
 
 how far the law of domicile governs, 30, 292, 293. 
 
 DONATIONES MORTIS CAUSA, 117. 
 
 DOWER, 
 
 right to, 131. ' 
 
 assignment of, 393. (L / i - , 
 
 DURESS, .JWrUi^.^.--:,,.- '3 ^ 
 
 frauds on persons under, 68, 69. / 
 
 E. 
 ELECTION, 
 defined, 370. 
 at law, 370. 
 in equity, 370. 
 
 as to one benefit given by will, 375. 
 need not be made in ignorance of circumstances, 375. 
 presumed, 376. 
 in the case of creditors, 376. 
 by a person under disability, 377. 
 in the case of a settlement, 368, 375. 
 in the case of a gift under a mistake, 377. 
 
 EQUITY, 
 
 follows the law, 13. 
 
 only assists the vigilant, 19. 
 
 equal equity, 21, 38. 
 
500 INDEX. 
 
 EQUITY— (conimueo!). 
 equality is, 21, 
 
 he who seeks equity must do equity, 23. 
 regards as done what ought to have been done, 24. 
 to a settlement. See Mabkied Women. 
 
 EQUITY JURISDICTION, 
 
 where equity has exclusive jurisdiction, 6. 
 where equity has concurrent jurisdiction, 7, 8, 9. 
 on account of the inadequacy of the legal relief, 7. 
 or to avoid circuity of action, or multiplicity of 
 
 suits, 7. 
 or to take due care of the rights of all, 7. 
 or on account of the necessity for a discovery, 8. 
 or on account of the original denial of due relief at 
 
 law, 8. 
 or the doubtfulness of obtaining such relief, 9. 
 where equity has auxiliary jurisdiction, 9. 
 where it has no jurisdiction, 9. 
 
 EQUITY JURISPRUDENCE. See Natfeal Justice. 
 definition of, 2. 
 true character of, 3 — 6. 
 division of, 33. 
 remedial equity, 107. 
 executive equity, 109 — 258. 
 adjustive equity, 259—393. 
 
 protective equity, irrespective of disability, 395 — 427. 
 protective equity, in favor of persons under disability, 
 
 429—478. 
 auxiliary equity, 479—490. 
 
 EQUITY OE REDEMPTION, 315, 335—337. 
 
 EXECUTOR. See Trustees. 
 
 may not derive a benefit, 82, 84, 204. 
 
 fraudulent dealing with executors or administrators, 
 
 101. 
 sales or pledges by, 101, 214. 
 distinction between trustees and executors in regard to 
 
 the effect of joining in receipts, 207. 
 liability, power, and duty. of, 214. 
 trust of debt due from, lS8. 
 right of executor to residue, 159. 
 time allowed for breaking up testator's establishment, 
 . ,-5222. I 
 
INDEX. 501 
 
 EXONEEATION, 
 
 of personal estate from debts, 272. 
 of specific legacy, 291. 
 
 EXPECTANTS, 
 
 dealings with, 86, 243, 244. 
 
 EXTINGUISHMENT, 
 of mortgage, 3.S0. 
 
 E. 
 FALSIFY, 
 
 liberty to surcharge and falsify, 262. 
 
 FAMILY, 
 
 meaning of, 127. 
 
 FAMILY AREANGEMENT, 47, 48, 66. 
 FINE, 
 
 bill to settle fine payable by copyholders, 407. 
 
 FORECLOSURE, 308, 313. 
 
 FOREIGN, 
 
 property or contracts, 29. 
 ignorance of foreign law, 46. 
 assets, 291—293. 
 judgments in foreign courts, 30. 
 
 FORFEITURE^ 365—369. 
 
 FORGED INSTRUMENTS, 399. 
 
 FRAUD IN GENERAL, 
 
 unsafe to define fraud in general, or the extent of reme- 
 dial equity on the ground of fraud, 56. 
 no relief to participator in, 23. 
 contract induced by fraud, not void, 60, 61. 
 where it may be enforced, 61. 
 transfer of a right to compla in of a fraud, 238. 
 
 FRAUD, ACTUAL, 
 where no relief, 56. 
 definition thereof, 56. 
 jurisdiction in cases of, 56. 
 
 evidence thereof, 57. 
 division of, 58. 
 
502 INDEX. 
 
 PRAUD, ACTUAL— {continued). 
 first class of actual frauds, 58. 
 
 1. Misrepresentation, 58. 
 
 2. Concealment, 61. 
 
 3. Inadequacy, 64. 
 
 4. Refusal to consent to a marriage, 66. 
 second class of actual frauds, 67. 
 
 1. On persons of unsound mind, 67. 
 
 2. On intoxicated persons, 67. 
 
 3. On persons of weak understanding, 68. 
 
 4. On persons who are not free agents, but under 
 
 duress, or in fear, or in prison, or in extreme 
 necessity, 68, 69. 
 
 5. On infants, 69. 
 
 case when one of two innocent persons must suffer by 
 the fraud of another, 70. 
 
 FRAUD, CONSTRUCTIVE, 
 definition of, 71. 
 
 four classes of constructive frauds, 71. 
 frauds on public policy, 71. 
 
 1. Marriage brokage contracts, 71. 
 
 2. Agreements to influence testators, 72. 
 
 3. Contracts to facilitate marriages 72. 
 
 4. Contracts or conditions in restraint of mar- 
 
 riage, 73. 
 
 5. Contracts or conditions in restraint of trade^ 73. 
 
 6. Fraud in relation to a bill in Parliament, 74. 
 
 7. Contracts for public offices, 74. 
 
 8. Suppression ox criminal proceedings, 74. 
 
 9. Champerty and corrupt considerations, 74. 
 frauds in the case of persons in the confidential rela- 
 tions of— 
 
 1. Parent, or person in loco parentis, 76. 
 
 2. Guardian, 77. 
 
 3. Quasi guardian, adviser, or minister of religion, 
 
 78. 
 
 4. Solicitor, 78. 
 
 5. Doctor, 81. 
 
 6. Agent, 81. 
 
 7. Trustee, 82. 
 
 8. Counsel, agents, commissioners of bankrupts, 
 
 assignees and solicitors of bankrupts or in- 
 solvents, auctioneers, and creditors, 83. 
 
INDEX. 503 
 
 FRAUD, CONSTRUCTIVE— (cowtinwei). 
 
 frauds in the case of persons in the confidential rela- 
 tions of — {co7itinued). 
 
 9. Executor or administrator, 84. 
 10. Debtor, creditor, and surety, 84. 
 frauds in the case of persons peculiarly liable to be 
 imposed on, '86. 
 
 1. Bargains with expectant heirs, reniaindermen, 
 
 and reversioners, 86, 87. 
 
 2. Post-obit bonds, &c., by expectants, 89. 
 
 3. Sales to expectants at exorbitant prices, 89. 
 
 4. Bargains with common sailors, 90. 
 
 .5. Disposition by a person soon after attaining 
 his majority, 90. 
 virtual frauds on individuals irrespective of any con- 
 fidential relation, or any peculiar liability to impo- 
 sition, 90. 
 
 1. Misleading, 91. 
 
 2. Frauds on auctions, 93. 
 
 3. Unconscientious use of the Statute of Frauds, 
 
 93. 
 
 4. Clandestine marriage contracts, 94. 
 
 5. Frauds on marriages, 94. 
 
 6. Frauds on marital rights or expectations, 95. 
 
 7. Frauds under the stat. 13 Eliz. c. 5, 96. 
 
 8. Frauds on creditors, parties to a composition 
 
 deed, 97. 
 
 9. Mortgage, or conveyance, with notice of an- 
 
 other's title, 98. 
 
 10. Fraudulent dealing with executors or adminis- 
 
 trators, 101. 
 
 11. Frauds under the stat. 27 Eliz. c. 4, 102. 
 
 12. Frauds in the case of voluntary gifts, as 
 
 against the donoi-s themselves, 105. 
 
 13. Fraudulent appointments, 105. 
 
 14. Extinguishing consideration for a contract, 107. 
 
 15. Rescinding contract, in order to benefit by 
 
 flaw in title, 107. 
 
 FREIGHT, 
 
 assignment of, 249. 
 
 G. 
 GAMING SECURITIES, 398. 
 
504 INDEX. 
 
 GENEEAL AYEEAGE, 347. 
 
 GUAEDIANS. See Infants, 
 fraud of, 77. 
 
 promising to convey to younger brother, 17. 
 
 right to surplus interest in a term or other particular 
 
 interest, 158. 
 right to undisposed of produce of real estate, 161 . 
 right to undisposed of part of mixed fund, 163. 
 bargains with expectant, 86. 
 post-obit bonds by, 89. 
 sales to expectant heirs at exorbitant prices, 89. 
 
 HUSBAND. See Makkied Women. 
 fraud on, 95. 
 
 I. 
 
 IMPEOVEMENTS, 
 
 trust in respect of, 178. 
 
 INADEQUACY, 64. 
 
 INCUMBRANCES. See Moetgaqes. 
 apportionment of, 347. 
 voluntary discharge of, 341. 
 compulsory discharge of, 343. 
 keeping down interest on, 343. 
 
 INFANTS, 
 
 jurisdiction as to, 430. 
 
 appointment, removal, control, and assistance of 
 
 guardians, 430, 431, 432. 
 religion, 431. 
 
 removal from their parents, 432. 
 conversion of their property, 432. 
 maintenance, 434. 
 foreign property of, 438. 
 wards of court, 
 
 who are, 433. 
 
 acts affecting them, 434. 
 
 marriage of, 438. 
 
 settlement on, 439. 
 care of, 440. 
 
INDEX. 505 
 
 INT ANTS— (contrnwe^) . 
 frauds on, 69, 76—7. 
 fraudulent appointments to, 106. 
 agreements by, 231. 
 
 INFORMATION, 
 
 duty of trustee to give, 222. 
 
 INJUNCTIONS, 
 
 defined, 410. 
 I. To restrain proceedings at law, 
 
 common, 410. 
 
 special, 411. 
 
 perpetual and total, or otherwise, 411. 
 at any stage of the action, 411. 
 after judgment, 412. 
 when granted, 412, 419. 
 
 not granted except against civil proceedings, 413. 
 in what cases of civil proceedings not granted, 413. 
 to whom addressed, 414. 
 against a foreign suit, 414. 
 II. In other cases, 415. 
 jurisdiction, 416. 
 different kinds, 41.5, 416. 
 
 must be prayed for, 416. , 
 
 equity will not limit power of granting, 416. 
 general rule as to cases where they will be granted, 
 
 416. 
 against waste, 416. 
 against nuisances, 419 — 421. 
 against infringements of patents and copyrights, ajid 
 
 publication of letters, 419. 
 against application to P^liament, 422. , j. 
 
 to do some act, 422. jT^wrtjt^- r kMAtn.iAi .(h^tjCltlM-lJ 
 INSOLVENT, ^^O 
 
 assignees and solicitors of, becoming purchasers, 84. 
 
 INSPECTION, 
 
 of deeds, 400. 
 
 INTEREST, ^rwtdcK it i'v- ■■ .--J,,-.-,. .' \ 2^)-/ l^Q 
 conversion into principal, 299. . / ' — 
 
 increase of, 299. 
 rent instead of, 322. 
 keeping down, 343. 
 
 43 
 
506 INDEX. 
 
 INTERPLEADER, 
 at common law, 401. 
 defined, 401. 
 by a tenant, 402. 
 by an agent, 403. 
 by a sherifl', 404. 
 connection between the titles of the two claimants, 
 
 402. 
 ability to admit title of either claimant, 404. 
 actual proceedings not necessary, 404. 
 preliminaries, 404. 
 
 INTOXICATED PERSONS, 
 
 frauds on, 67. 
 
 INVESTMENT, 
 improper, 193. 
 non-investment, 201. 
 on mortgage, 202. 
 
 J. 
 
 JOINT PURCHASE OR MORTGAGE, 
 
 doctrine of equity in regard to, 21, 22. 
 • implied trust on, 174. 
 
 JOINT TENANCY, 
 
 limitations which would create, 174. 
 equity leans against, 21, 174. 
 
 JUDGMENT, 
 • against trustee, 213. 
 
 JURISDICTION. See Equity. 
 
 interposition of equity in regard to property out of 
 the jurisdiction, 29. 
 
 L. 
 
 LACHES, 
 
 consequences of, 19, 263. 
 
 LEASE, 
 
 renewal of, by a trustee, partner, mortgagee, &c., 184. 
 person having a limited interest, 185. 
 by a mortgagee, 298. 
 
INDEX. 507 
 
 L'EASE— (continued) . 
 to a mortgagee, 300. 
 
 LEASEHOLD, 
 
 mortgage of, 322. 
 charges of renewal of, 845. 
 
 LEGACIES, 
 
 jurisdiction as to, 110. 
 
 charge of, 167. 
 
 payable at a future day, 112. 
 
 specific legacy to one for life, remainder to another, 
 
 for a purpose whicli cannot be accomplished, 113. 
 
 construction of, 115, 116. 
 
 abatement of, 268. 
 
 ademption of, 381. 
 
 to creditors, 384. 
 
 to debtors, 385. i~ , • , , 
 
 LEGATEES, 'k^uJ^'^ ^^ O'U^u^^-^ ^f 
 uB^ef ,a will defectively executed, 38., ;/ /"ya 
 
 LETTERS,' 
 
 injunction to restrain the publication of, 421. 
 
 LIEN, 
 
 r, TJri-Mi.xJt^iy)^r.--iJ--^t :, I 
 
 in general, 338. .• / / 
 
 of a vendor, 180, 290. J? ^ VA^-^^-t-i^^ p,^ j'^^<^ ■ 
 
 ofa solicitor, 338. ') J ' / 
 
 of a joint tenant, 339. 
 
 of a trustee, 339. 
 
 of annuitants, 339. 
 
 how enforced, 338. ,, , , j^ '':■ i 
 
 LIMITATIONS, STATUTE OF,/, Oc^t-, MMU'i-A ' 
 how far equity followed the law as to, 18. - ' / 
 
 operation of, as regards debts, 263. 
 as regards trusts, 153. 
 
 LITIGATION, 
 
 protection from, 396. 
 
 assignment of mere naked rights to litigate, 240. 
 
 LOST, 
 
 deeds, &c., 40.. 
 
508 INDEX. - 
 
 LUNATICS AND OTHER PERSONS OF UNSOUND 
 MIND, 
 jurisdiction, 442. 
 frauds on, 67. 
 
 M. 
 
 MAINTENANCE AND CHAMPERTY, 239. 
 MAINTENANCE OF CHILDREN^ 434. 
 MANAGER, 300—1, 350. 
 
 MARRIAGE, 
 
 refusal to consent to a, 66. 
 
 brokage contracts, 72. 
 
 contracts to facilitate, 72. 
 
 contracts or conditions in restraint of, 73. 
 
 clandestine marriage contracts, 94. 
 
 frauds on, 94. 
 
 frauds on marital rights and expectations, 95. 
 
 articles, execution of, 136. 
 
 MARRIAGE SETTLEMENT. See Accident, Fraud, 
 Infants, Makhied Women, Mistake, &c. 
 
 MARRIED WOMEN, 
 mortgage by, 177, 326. 
 agreements by them not enforced, 231. 
 common-law doctrine as to, 445. 
 
 powers which husband and wife have in equity of con- 
 tracting with and giving to each other, 446. 
 contracts before marriage, 446. 
 contracts after marriage, 446. 
 gifts and grants after marriage, 447. 
 pin-money, 449. 
 paraphernalia, 450. 
 separate estate, 451 . 
 
 means of acquiring it, 451. 
 
 by gift, grant, devise, or settlement, 451. 
 by separate trade, 45.3. 
 by agreement after marriage, 453. 
 by order of protection or judicial separation, 
 • 455. 
 wife's power of disposing of, 455. 
 
 restrictions against alienation or anticipation, 458. 
 
INDEX. 509 
 
 MARRIED WOWEN— (continued). 
 
 gifts to the husband by the wife, 459. 
 husband's receipt of the income, 460. 
 liability of, 460. 
 wife's equity to a settlement out of her own property, 
 
 463. 
 power of trustees of the wife's personalty not settled 
 to her separate use, 464. ^ 
 
 when defendant against her husband, 464. 
 
 against his assi£>uees or vendees, 
 466. 
 when plaintiff, 468. 
 amount to be settled, 469. 
 
 substitute for a settlement where fund is small, 470. 
 waived, lost, or suspended, 471. 
 where parties are domiciled in Scotland, 473. 
 wife's right of survivorship in regard to reversionary 
 
 interests, 468. 
 wife's equity to a maintenance, in case of husband's 
 
 misconduct, bankruptcy, or insolvency, 473. 
 deeds of separation, 475. 
 
 non-disclosure of ante-nuptial incontinence, 478. 
 benefits under settlement not forfeited by adultery, 
 
 478. 
 purchases of, 478. 
 frauds of, 478. 
 
 MARSHALLING, 
 of assets, 284. 
 
 in favor of mortgagees, and other creditors, or 
 of legatees, or of a portionist, or of the heir, 
 or of a devisee, 285. 
 as between freehold and copyhold, 287. 
 as between legacies charged on land and others 
 
 not so charged, 287. 
 in the case of charitable legacies, 288. 
 as between simple contract debts and a ven- 
 dor's lien, 290. 
 in favor of widow's paraphernalia, 291. 
 of securities, 355. 
 
 MAXIMS, GENERAL, 10. 
 
 no right without a remedy, 10, 11. 
 where equity will give a remedy, 12, 13. 
 43* 
 
510 INDEX. 
 
 MAXIMS, GENEIIAL— (contiwMecf). 
 equity follows the law, 13. 
 necessity for vigilance, 19. 
 where equal equity, law prevails, 21. 
 equality is equity^ 21. 
 plain tiir must have clean hands, 23. 
 plaintiff must do equity, 23. 
 
 equity regards as done, what ought to be done, 24. 
 priority, 28. 
 
 equity imputes intention to fulfil obligation, 28. 
 rules as to foreign and colonial property or contracts, 
 
 29. 
 interference of courts of law with decisions of courts of 
 
 equity, 32. 
 
 MESNE PROFITS, 362. 
 
 MIND. See Lunatics. 
 
 frauds on persons of weak understanding, 68. 
 
 MINISTER OF RELIGION, 
 constructive fraud by, 78. 
 
 MISDESCRIPTION, 
 
 slight, 228. 
 substantial, 229. 
 
 MISLEADING, 91. 
 
 MISREPRESENTATION, 58. 
 
 MISTAKE, 
 
 by the sufferer alone, 45. 
 
 mutual, 47. 
 
 in or in regard to a written instrument, 49. 
 
 ignorance of foreign law, 46. 
 
 of vendor as to value, 47. 
 
 MORTGAGE, 
 
 I. Mortgages of real property, 294. 
 what may be mortgaged, 294. 
 what amounts to, 294. 
 mortgagee's estate, 297. 
 
 mortgagee's possession, leases, receiving of rent, 298. 
 limit to mortgagee's advantage, 299. 
 conversion of interest into principal, 299. 
 increase of interest, 299. 
 
INDEX. 511 
 
 M.O'RTGAG'E— {continued) . 
 lease to mortgagee, 299.' 
 what mortgagee may add to his debt, 300. 
 allowance for receiver, 301. 
 of West India estate, 301. 
 pre-emption, 302. 
 
 production of deed, by mortgagee, 302. 
 mortgagee ejecting or refusing tenant, 303. 
 mortgagee's right to cut timber and open mines, 298. 
 tacking, 303. 
 
 with notice of another's title, 98. 
 postponement of prior mortgage, 306. 
 protection of subsequent mortgagees against prior vol- 
 untary conveyances, 102. 
 mortgagee's remedies, 308. 
 
 foreclosure, 308. 
 
 sale, 309. 
 
 concurrent remedies, 313. 
 mortgagor's estate and rights, 314. 
 equity of redemption, 315. 
 who may redeem, 318. 
 annual rests, 320. 
 possession by mortgagor, 320. 
 rents received by mortgagor, 321. 
 waste "by him, 321. 
 expenditure by mortgagee, 321. 
 of leasehold, 322. 
 rent instead of interest, 322. 
 for costs, 323. 
 
 conveyance in trust to sell, 323. 
 joint, "174. 
 defective, 323. 
 payment of debt, 324. 
 
 out of what,' 270. 
 
 contribution towards, 343. 
 "Welsh mortgage, 325. 
 of wife's estate, 177, 326, 
 first mortgagee answerable to second, 327. 
 disputing mortgagor's title, 327. 
 assignment of, 328. 
 
 what a purchaser of a mortgage can claim, 328. 
 gift of mortgage security, 329. 
 devise by a mortgagee, 329. 
 right of purchaser of equity of redemption, 329. 
 
512 INDEX. 
 
 MORTGAGE— (coniOTwecZ). 
 
 right of second equitable mortgagee, 329. 
 cancelling, 330. 
 reconveyance, 331. 
 
 death of mortgagee intestate and without heirs, 831. 
 II. Equitable mortgages of real property, S32. 
 III. Mortgages and pledges of personal pi'operty, 334. 
 a mortgage and a pledge distinguished, 334. 
 tacking, 335. 
 purchase by a second mortgagee under a power of sale 
 
 from the first, 312. 
 mortgagor's right to redeem and mortgagee's right to 
 
 sell, 335. 
 pledgor's right of redemption, 337. 
 pledgee's right of sale, 337. 
 
 N. 
 
 NATUEAL JUSTICE. See Eqtjity. 
 equity is not synonymous with, 3. 
 large portion of it is left to conscience, 5. 
 another large portion is administered in courts of 
 
 law, 5. 
 equity is only a portion of natural justice in a modified 
 form, 6. 
 
 jSTE exeat regno, 423. 
 
 NEXT OF KIN, 
 
 right of, 159—165. 
 
 NOTES, LOST, 42. 
 
 NOTICE, 
 
 two kinds of, 99. 
 what is, 99—100. 
 conveyance or mortgage with notice of another's title, 
 
 98. 
 notice of assignment, 247 — 250. 
 notice of incumbrance, 307 — 8. 
 
 NUISANCES, 
 
 injunctions to restrain, 419. 
 
 O. 
 OBLIGATION, 
 
 fulfilment of, 28. 
 
INDEX. 513 
 
 OFFICERS, 
 
 assignment by oiHcers of government, 238. 
 
 OFFICES, 
 
 contracts for, 74. 
 
 PARAPHERNALIA, 449. 
 marshalling in favor of, 450. 
 
 PARENT, 
 
 frauds of or on a parent or person standing in loco 
 
 parentis, 76. 
 removal of children from, 432. 
 
 PAROL CONTRACTS, 
 
 where enforced, 252. 
 
 PAROL PROMISE, 
 
 where enforced, 256. 
 
 PAROL VARIATIONS OR ADDITIONS, 255. 
 
 PARTITION, 
 
 bill for a partition of property out of jurisdiction, 30. 
 
 mode of partition, 388. 
 
 title shown, 388. 
 
 by or against tenants who have limited interests, 390. 
 
 equitable adjustments, 390. 
 
 of partnership leaseholds, 351, 
 
 PARTNERSHIP, 
 
 jurisdiction, 348. 
 
 specific performance of agreement to enter into, 348. 
 carrying into effect the articles of, 348. 
 dissolution of, 349. 
 
 application of articles after cesser of term, 349. 
 injury prevented, 350. 
 account, manager, and receiver, 350. 
 partition, 351. 
 
 using stock after dissolution, 351. 
 property held for partnership purposes, 174, 351. 
 rights of joint creditors, 352. 
 
 priority as between joint and separate creditors, 352. 
 creditors may proceed against a deceased partner's 
 estate in tlie first instance, 353. 
 
514 INDEX. 
 
 PATENTS, 
 
 injunctions to restrain infringements of, 419. 
 
 PAYMENT, 
 
 into Court or to the party, 426. 
 
 PAYMENTS, 
 
 appropriation of, 264. 
 
 PEACE, 
 
 bills of, 406. 
 
 PENALTIES, 
 
 payment of, 258, 365. 
 
 PIN-MONEY, 449. 
 
 PLEDGES, 
 
 distinguished from mortgages of personal property, 
 
 334. 
 pledgor's right of redemption, 337. 
 pledgee's right of sale, 337. 
 
 POLICY, PUBLIC, 
 
 frauds on, 71. 
 
 assignments, contracts, and covenants against, 238. 
 
 PORTIONS, 
 
 what is a portion, 113. 
 where not to be raised, 114. 
 time for raising, 114. 
 interest, 115. 
 satisfaction of, 378. 
 
 POSSIBILITIES, 
 
 assignment of, 242. 
 
 POST-OBIT BONDS, 89. 
 
 POWEES, 
 
 relief in cases of the defective execution or non-execu- 
 tion of, 18, 42, 54. 
 effectuating tlie general intention of the donor of a 
 
 power, 155. 
 
 PRETENDED TITLES, 239. 
 
INDEX. 515 
 
 PEIMOGENITUEE, 
 
 equity follows tlie law as to, 16. 
 
 PROMISE. See Specific Performance. 
 
 PURCHASE, 
 
 with notice of another's title, 98. 
 
 in another's name, 171. 
 
 covenant or trust to purchase lands, 175. 
 
 of a mortgage, 328. 
 
 of a lien or mortgage by a trustee, 184. 
 
 of an estate by a trustee or agent, 185, 205. 
 
 money to be paid out of personal estate, 228. 
 
 with right of repurchase, 294. 
 
 of an equity of redemption, 329. 
 
 from executor or administrator, 101. 
 
 PURCHASER, 
 
 for valuable consideration, rights of, 21, 38, 50, 190, 
 212. 
 
 protection of subsequent, 102. 
 
 purchaser's heir may require the money to be paid 
 out of the personal estate, 228. 
 
 his obligation to see to the application of the purchase- 
 money, 141. 
 
 QUIA TIMET, 396. 
 
 Q. 
 
 R. 
 
 RECEIPTS, 
 
 distinction between trustees and executors as regards 
 joining in, 207. 
 
 RECEIVER, 
 
 appointment of, 425. 
 
 office, possession, and power, 425-6. 
 
 allowance to mortgagee for, 301. 
 
 RECONVEYANCE, 331. 
 
 RECTIFYING. See Mistake. 
 
 REDEMPTION. See Mortgage. 
 
516 INDEX. 
 
 "RELATIONS," 
 meaning of, 127. 
 
 RELEASE, 
 
 rectifying, 53. ^ 
 
 REMAINDERMEN, 
 bargains with, 87. 
 
 REMITTANCE, 
 
 revocableness of, 139. 
 
 RENEWAL, 
 
 of lease, by a person having a limited interest, 185. 
 
 RENT, 
 
 obligation to pay, notwithstanding accident, 37. 
 
 RENTS, 
 
 where a suit will be entertained for the recovery of, 
 12. 
 
 REPAIRS, 
 
 covenant to do, 37. 
 trust in respect of, 178. 
 
 REPURCHASE, 
 
 purchase, with right of, 294. 
 
 RESIDUE, 
 
 undisposed of, 158 — 160. 
 
 RESTS, 205, 320. 
 
 REVERSIONERS, 
 bargains with, 82. 
 
 SAILORS, 
 
 frauds on, 90. 
 
 SALE, 
 
 omission to sell, 193. 
 by a mortgagee, 309, 335. 
 conveyance in trust to sell, 323. 
 frauds on auctions, 93. 
 
INDEX. 517 
 
 SATISFACTION, 
 defined, 378. 
 where arising, 378. 
 rebutted, 378. 
 
 of portions secured by settlement, 379. 
 of portions left by will, 381. 
 none in the case of str.angers, 382. 
 of legacies to creditors, 384. 
 of legacies to debtors, 385. 
 of annuity, 386. 
 of covenant to settle lands, 387. 
 of covenant to bequeath, 387. 
 
 SECURING, 
 
 of documents, 400. 
 
 SECURITY, 
 
 in another's name, 171. 
 
 marshalling of securities, 354. 
 
 mutual right to the benefit of, between creditor and 
 
 sureties, 356. 
 delivery up of, 399. 
 
 SEPARATION, 
 deed of, 475. 
 
 SEPARATE USE. See Mabeied Women. 
 
 SET-OFF, 
 
 connected accounts, 359. 
 
 independent debts or demand, 359. 
 
 where' one debt is joint and the other separate, 360. 
 
 demands in different rights, 360. 
 
 SETTLEMENT. See Mabeied "Womek, Maekiage 
 Settlement, Infants. 
 rectifying, 49, 50. 
 voluntary, 102. 
 
 SHERIFF, 
 
 interpleader by, 404. 
 
 SOLICITOR, 
 
 actual fraud of a, 59. 
 constructive fraud of a, 78. 
 gifts or gratuity to a, 80. 
 charges by a trustee who is a, 191. 
 44 
 
518 INDEX. 
 
 SPECIFIC PERFORMANCE, 
 remedy at law, 223, 225. 
 
 decree in equity where damages would not aflTord com- 
 pensation, 223. 
 between persons claiming under the parties, 227. 
 where terms are not complied with in non-essential 
 
 particulars, or where there is a slight misdescription, 
 
 228. 
 where there is a want of title, or a substantial misde- 
 scription, or want of reasonable compliance with 
 
 terms of agreement, 229. 
 where there is an accidental incapacity of performing 
 
 the remainder of an agreement, 230. 
 submodo, 230. 
 
 where the parties were incompetent to contract, 231. 
 where the terms are not certain or definite, 231. 
 where there is no valuable consideration, 231. 
 where it would be morally wrong or inequitable, 
 
 234. 
 of assignments, contracts, or covenants against public 
 policy, 238. 
 
 assignments by oflBcers of the government, 238. 
 
 assignments involving champerty, maintenance, or 
 buying of pretended titles, 239. 
 
 assignments of mere naked rights to litigate, 240. 
 
 assignment of possibilities, or things in action, 242. 
 
 connected with arbitration, 251. 
 
 parol contracts, 252. 
 
 parol variations or additipns, 255. ' „ 
 
 parol promises, 256. ^/j ■'U-t'..i/s, l''^■^J'JAi -■ r,f :' 
 
 agreements to borrow, 257. 
 
 negative agreements, 257. 
 not avoided by payment of penalties, 258. 
 of agreement to enter into a partnership, 348. 
 
 STATUTES, 
 
 17 Edward II. c. 9 (Idiots), 442. 
 17 Edward II. c. 10 (Lunatics), 442. 
 27 Henry VIII. c. 10 (Uses), 123. 
 32 Henry VIII. c. 9 (Pretended Titles), 240. 
 13 Elizabeth, c. 5 (Fraudulent Conveyances), 96. 
 27 Elizabeth, c. 4 (Fraudulent Conveyances), 102 
 ^ 140. 
 
INDEX. 519 
 
 STATUTES— (conJmwed) . 
 
 29 Car. II. c. 3 (Frauds), 93, 121, 252. 
 
 9 Geo. II. c. 30 (Mortmain),'287. 
 1 Wm. IV. c. 40 (Residue), 159. 
 1 Wm. IV. c. 60 (Trustees), 222. 
 
 1 Wm. IV. cc. 60, 65 (Infants), 441. 
 
 1 Wm. IV. cc. 60, 65 (Persons of Unsound Mind), 
 444. 
 
 1 & 2 Wm. IV. c. 58 (Interpleader), 401. 
 
 3 & 4 Wm. IV. c. 27, ss. 24, 28 (Statute of Limita- 
 tions), 153, 309, 315. 
 
 3 & 4 Wm. IV. c. 104 (Debts), 11, 286. 
 
 3 & 4 Wm. IV. c. 105, s. 2 (Dower), 316. 
 
 7 Wm. IV. 1 Vict. 0. 28 (Statute of Limitations), 309. 
 
 1 Vict. c. 26 (Devise to Heir), 373. 
 
 1 & 2 Vict. c. 110 (Judgments), 304. 
 
 7 & 8 Vict. c. 76 (Receipts), 146. 
 
 7 & 8 Vict. c. 76, s. 9 (Reconveyance of Mortgaged 
 Estate), .331. 
 
 8 & 9 Vict. c. 106 (Contingent Interests), 243. 
 
 8 & 9 Vict. c. 106, s. 1 (Reconveyance of Mortgaged 
 
 Estate), 331. 
 8 & 9 Vict. c. 112 (Terms), 134. 
 
 10 & 11 Vict. c. 96 (Trusts), 222. 
 
 12 & 13 Vict. c. 74 (Trusts), 222. 
 
 13 & 14 Vict. c. 60 (Trusts), 222. 
 
 13 & 14 Vict. c. 60 (Persons of Unsound Mind), 444. 
 13 & 14 Vict. c. 60 (Infants), 441. 
 13 & 14 Vict. c. 60, ss. 19, 20 (Reconveyance of Mort- 
 gaged Estate), 331. 
 
 13 & 14 Vict. c. 60, s. 30 (Partition), 389. 
 
 14 & 15 Vict c. 99, ss. 2, 6 (Evidence), 483. 
 
 15 & 16 Vict. c. 55 (Trusts), 222. 
 15 & 16 Vict. c. 55 (Infants), 441. 
 
 15 & 16 Vict. c. 55 (Persons of Unsound Mind), 444. 
 15 & 16 Vict. c. 76, ss. 219, 220 (Redemption), 297. 
 15 & 16 Vict. c. 86, s. 45 (Summons), 266. 
 15 & 16 Vict. c. 86, s. 48 (Sale of Mortgaged Estate), 
 309. 
 
 15 & 16 Vict. c. 86, s. 58 (Injunctions), 411. 
 
 16 & 17 Vict. c. 70 (Persons of Unsound Mind), 444. 
 
 16 &17 Vict. c. 137 (Charities), 149. 
 
 17 Vict. c. 113 (Mortgage Debts), 278. 
 17 & 18 Vict. c. 90 (Usury), 24. 
 
520 INDEX. 
 
 ST ATTJT'ES— (continued) . 
 
 17 & 18 Vict. c. 104 (Shipping), 336. 
 
 17 & 18 Vict. c. 12.5, ss. 50—54 (Evidence), 483. 
 
 17 & 18 Vict. c. 125, ss. 79—82 (Injunctions), 416. 
 
 18 Vict. c. 13 (Persons of Unsound Mind), 444. 
 
 18 & 19 Vict. c. 124 (Charities), 14». 
 
 19 & 20 Vict. c. 120 Infants), 441. 
 
 19 & 20 Vict. c. 120 (Persons of Unsound Mind), 444. 
 
 20 & 21 Vict. c. 57 (Reversionary Interests), 468. 
 
 20 & 21 Vict. c. 77, s. 23 (Legacies— Residues), 111, 
 265. 
 
 20 & 21 Vict. c. 85, ss. 21, 25 (Separate Use), 455. 
 
 21 & 22 Vict. c. 27 (Trial of Questions of Fact), 410. 
 21 & 22 Vict. c. 27 (Damages), 364. 
 
 21 & 22 Vict. c. 108, s. 8 (Separate Use), 455. 
 
 22 & 23 Vict. c. 35 (Trusts), 222. 
 
 22 & 23 Vict. c. 35, ss. 4—6 (Forfeiture), 368. 
 
 22 & 23 Vict. c. 35, s. 12 (Appointments), 42. 
 
 22 & 23 Vict, c 35, s. 13 (Sales under Powers), 45. 
 
 22 & 23 Vict. c. 35, s. 23 (Receipts), 145. 
 
 22 & 23 Vict. c. 35, s. 29 (Notice for Creditors), 215. 
 
 22 & 23 Vict. c. 35, s. 30 (Directions to Trustees, &c.), 
 
 216. 
 22 & 23 Vict. c. 35, s. 31 (Reimbursement), 209. 
 22 & 23 Vict. c. 35, s. 31 (Indemnity), 209. 
 
 22 & 23 Vict. c. 35, s. 32 (Investments), 195. 
 
 23 & 24 Vict. c. 38, s. 1 (Judgments), 352. 
 
 23 & 24 Vict. c. 38, ss. 10, 11, 12 (Investments), 195. 
 
 23 & 24 Vict. c. 38, s. 145 (Trusts), 222. 
 
 23 & 24 Vict. c. 126 (Forfeiture), 368. 
 
 23 & 24 Vict. c. 134 (Charities), 149. 
 
 23 & 24 Vict. c. 136 (Charities), 149. 
 
 23 & 24 Vict. c. 145 Powers of Mortgagees), 301. 
 
 23 & 24 Vict. c. 145 (Investments), 195. 
 
 23 & 24 Vict. c. 145, ss. 12, 29 (Receipts), 146. 
 
 22 & 24 Vict. c. 145, ss. 17—24 (Receiver), 425. 
 
 23 & 24 Vict. c. 145, s, 26 (Maintenance), 434. 
 32 & 24 Vict. c. 145, ss. 27, 28 (Trustees), 220. 
 
 23 & 24 Vict. c. 145, s. 30 (Powers of Executors), 214. 
 25 & 26 Vict. c. 42 (Questions of Law and Fact), 410. 
 25 & 26 Vict. c. 63, s. 3 (Mortgages of Ships), 336. 
 25 & 26 Vict. cc. 86, 111 (Persons of Unsound Mind), 
 
 444. 
 30 & 31 Vict. c. 69 (Mortgage Debts), 280. 
 
INDEX. 521 
 
 STATVTBS— {continued). 
 
 30 & 31 Vict. c. 132 (Investments), 195. 
 81 Viet. c. 4 (Purcliase of Reversions), 88. 
 
 STOCK, 
 
 reduction of, 36. 
 
 SUB-PUBCHASE, 240—1. 
 
 SURCHABGE AND FALSIFY, 
 liberty to, 262. . 
 
 SURETIES, Stn^'-'^- l^^^^->'-^^f~^^ .'" 
 contribution between, 345. 
 rights of creditors and sureties, 84, 356. 
 
 SURPLUS, 
 
 rigUt of heir or next of Mn or executor to, 156—163. 
 
 T. 
 TACKING, 303, 335. 
 
 TENANT, 
 
 interpleader by, 402. 
 
 TERM OF YEARS, 
 trusts of, 132. 
 
 TESTATORS, 
 
 agreement to influence, 72. 
 
 TESTIMONY, 
 
 bill to perpetuate, 486. 
 
 bill to take testimony de bene esse, 488. 
 
 TIMBER, 
 
 trust as to, 176. 
 
 TIME, 
 
 where time is of the essence of a contract, 228. 
 
 TITHES AND MODUSES, 363. 
 
 TITLE, 
 
 muniments of, 219. 
 
 want of, 229. 
 
 buying a pretended, 239. 
 
 4i* 
 
522 INDEX. 
 
 TRADE, 
 
 contracts or conditions in restraint of, 73. 
 
 TEUSTS IN GENERAL, 
 definition of, 120. 
 division of, 120. 
 extent of jurisdiction over, 120. 
 
 TRUSTS, EXPRESS PRIVATE, 
 defined, 121. 
 mode of declaring, 121. 
 by wliat words created, 123. 
 intended trust, though void, excludes donee from taking 
 
 beneficially, 128. 
 executed and executory, 15, 129. 
 governed by the same rules as legal estates, 131. 
 of terms for years, 132. 
 
 created without cestui que trusVs knowledge, 135. 
 what will be enforced, 135. 
 execution of marriage articles, 136. 
 assignments for benefit of creditors, 136. 
 revocableness of a consignment or remittance, 139. 
 revocableness of a consignment of equitable property, 
 
 or a declaration of trust in favor of a volunteer, 
 
 139. 
 effect of a direction or power to raise money out of 
 
 rents for debts, &c., or of a charge, 140. 
 bar of, 147. 
 
 performed as to the main intent, 147. 
 where legal and equitable estates have no separate 
 
 existence, 148. 
 
 TRUSTS, EXPRESS CHARITABLE. See Chabities. 
 
 TRUSTS, IMPLIED, 
 
 sometimes called constructive trusts, 178. 
 
 defined, 155. 
 
 in a power, 155. 
 
 when trusts fail or the property is unexhausted, 156. 
 
 on an absolute gift, with an ineffectual or partial trust, 
 
 or a void condition, 156. 
 on a conveyance without a consideration, and without 
 
 a use or trust, 157. 
 on a limitation of a particular interest only, 158. 
 
INDEX. 523 
 
 TRUSTS, IMFI^TED— (continued). 
 
 of undisposed residue of testator's personalty, 159. 
 
 of undisposed of produce of real estate, 161. 
 
 of undisposed of part of mixed fund, 163. 
 
 of undisposed part of money directed to be converted, 
 
 or of the produce, 164. 
 failure of objects for conversion, 164 — 165. 
 charges, 165. 
 on conveyance, assignment, or security in another's 
 
 name, 171. 
 on purchase or transfer of stock or delivery of money, 
 
 on limitations which would create a joint tenancy at 
 
 law, 174. 
 on covenant or trust to purchase lands, 175. 
 on covenant to settle lands, 176. 
 of collateral securities for a debt assigned, 176. 
 of ornamental timber, 176. 
 of wife's mortgaged property, 177. 
 
 TEUSTS, KESULTING, 156—165, 171—173. 
 
 TRUSTS, CONSTRUCTIVE, 
 
 defined, 178. 
 
 in respect of repairs or improvements, 178. 
 
 in favor of creditors, 179. 
 
 on a covenant or agreement to convey, transfer, or pay 
 money or other property, 179. 
 
 vendor's lien for unpaid purchase-money, 180. 
 
 of lease, of which a renewal is obtained by a person 
 having a limited interest, 185. 
 
 on a wrongful conversion or alienation of trust prop- 
 erty, 186. 
 
 of mortgaged estate, 188. 
 
 of debt due from executor, 188. 
 
 TRUSTEES, 
 
 who may be, 189. 
 
 acceptance of office of, 189. 
 
 profits by, 82, 184, 204. 
 
 gifts to, 82, 205. 
 
 purchase by, 184, 205. 
 
 devolution or delegation of trust, 189. 
 
 equity never wants a trustee, 190. 
 
524 INDEX. 
 
 TEUSTEES— (conti»we(J). . 
 
 no remuneration allowed, 191. 
 
 expenses allowed, 192. 
 
 what care and diligence they are bound to use, 192. 
 
 omission to sell, 193. 
 
 improper investment, 193. 
 
 omission of one trustee or executor to see that the 
 
 property is duly secured or applied, 197. 
 losses without want of customary care or diligence, 
 
 200. 
 non-investment,' 201. 
 conversion of terminable and reversionary property, 
 
 201. 
 time allowed for conversion, 202. 
 investment on mortgage, 202. 
 may not mix the trust money with their own, 203. 
 responsibility for each other's acts and defaults, 206. 
 distinction between trustees and executors in regard to 
 
 the effect of joining in receipts, 207. 
 indemnity clause, 209. 
 breach of trust by, 209, 212—214. 
 acquiescence in a breach of trust, 211. 
 debt by breach of trust is a simple contract debt, 
 
 212. 
 power to bind the estate by a sale, transfer, mortgage, 
 
 or specific lien, 212. 
 judgment against, 211. 
 to support contingent remainders, 217. 
 aid and direction to, 216, 218. 
 safety of, 218. 
 
 possession of muniments of title, 219. 
 removal of, 220. 
 appointment of, 220. 
 where trustees took the fee, 220. 
 conveyance of legal estate to cestui que trust, 221. 
 settlement of accounts, 221. 
 duty of keeping accounts and rendering infornuition, 
 
 222. 
 
 U. 
 USURIOUS TRANSACTIONS, 24, 397. 
 
INDEX. 525 
 
 Y. 
 VENDOR, 
 
 vendor's lien, 180. 
 
 nature of and reasons for, 180. 
 
 where it originally exists, 181. 
 
 continuance thereof, 181. 
 
 against whom it exists, 182. 
 
 misrepresentation or cor^ealment by, 58 — 64. 
 
 VIGILANTIBUS, 
 
 non dormientihus, mquitas subvenit, 19. 
 
 VOID AND VOIDABLE CONTRACTS AND IN- 
 STRUMENTS. See Fraud. 
 cancelling, 396. 
 
 VOLUNTARY. See Coksidebatioit. 
 
 VOLUNTEER. See Consideeation. 
 rights of, 27. 
 
 when a collateral relation not a, 104. 
 fraud of, 105. 
 revocableness of a conveyance of equitable property, 
 
 or a declaration of trust in favor of a volunteer, 
 
 139. 
 voluntary deed not cancelled, or enforced, 399. 
 
 "W. 
 "WARDS. See Infajstts. 
 
 "WASTE, 
 
 injunctions to restrain, 176, 412. 
 by a mortgagor, 321. 
 by a mortgagee, 298. 
 account in cases of, 363. 
 equitable, 176, 418. 
 
 "WEAK UNDERSTANDING, 
 frauds on persons of, 68. 
 
 WELSH MORTGAGE, 325. 
 
526 INDEX. 
 
 WEST INDIA ESTATE, 
 mortgage of, 301. 
 
 WILL, 
 
 defective execution of a will not remedied, 38. 
 agreements to influence a testator, 72. 
 bills to establish wills, 408. 
 mistake or omission in, 54. 
 fraud in regard to, 56. r 
 
 THE ENS. 
 
ADDENDA. 
 
 Pp. 27], 287 n. In Bcnsman v. Fryer, L. R., 3 Ch. Ap., 
 420, Lord Chelmsford, C, held that a residuary devise 
 remains in effect specifie, notwithstanding the 24th 
 section of the " Wills Act," and that a general legatee 
 and ii. residuary devisee must contribute pro rata in 
 payment of debts which the other property first appli- 
 . cable is insufficient to satisfy. 
 
 31 & 32 VICT., CAP. XL. 
 
 An Act to amend the Law relating to 
 Partition. 
 
 [25^/t June, 1868.] 
 Be it enacted by the Queen's most excel- 
 lent Majesty, by and with the advice and 
 consent of the Lords Spiritual and Tem- 
 poral, and Commons, in this present Parlia- 
 ment assembled, and by the authority of the 
 same, as follows : 
 
 1. This Act may be cited as The Partition Short title. 
 Act, 1868. 
 
 2. In this Act the term " the Court " means Aa to the 
 
 term '* the 
 
 the Court of Chancery in England, the Court court." 
 of Chancery in Ireland, the Landed Estates 
 Court in Ireland, and the Court of Chancery 
 of the County Palatine of Lancaster, within 
 their respective jurisdictions. 
 
 ( 527 ) 
 
528 
 
 31 & 32 VICTORIiE, CAP, 40. 
 
 Partition. 
 
 Power to 
 Court to 
 order sale 
 instead of 
 division 
 
 Sale on 
 amplication 
 ot certain 
 proportion 
 of parties 
 interested. 
 
 3. In a suit for partition, where, if this 
 Act had not been passed, a decree for par- 
 tition might have been made, then if it 
 appears to the Court that, by reason of the 
 nature of the property to which the suit 
 relates, or of the number of the parties inte- 
 rested or presumptively interested therein, 
 or of the absence or disability of some of 
 those parties, or of any other circumstance, 
 a sale of the property and a distribution of 
 the proceeds would be more beneficial for 
 the parties interested than a division of the 
 property between or among them, the Court 
 may, if it thinks fit, on the request of any 
 of the parties interested, and notwithstand- 
 ing the dissent or disability of any others 
 of them, direct a sale of the property ac- 
 cordingly, and may give all necessary or 
 proper consequential directions. 
 
 4. In a suit for partition, where, if this Act 
 had not been passed, a decree for partition 
 might have been made, then if the party or 
 parties interested, individually or collective- 
 ly, to the extent of one moiety or upwards in 
 the property to which the suitrelates, request 
 the Court to direct a sale of the property and 
 
31 & 32 VICTORIA, CAP, 40. -829 
 
 Partition. 
 
 a distribution of the proceeds instead of a 
 division of the property between or among 
 the parties interested, the Court shall, unless 
 it sees good reason to the contrarj^, direct a 
 sale of the property accordingly, and give all 
 necessary or proper consequential directions. 
 
 5. In a suit for partition, where, if this As to pur- 
 
 chase of 
 Act had not been passed, a decree for par- share of 
 
 ■*■ party de- 
 
 tition might have been made, then if any siriugsaie. 
 party interested in the property to which 
 the suit relates requests the Court to direct 
 a sale of the property and a distribution of 
 the proceeds instead of a division of the 
 property between or among the parties inte- 
 rested, the Court may, if it thinks fit, unless 
 the other parties interested in the property, 
 or some of them, undertake to purchase the 
 share of the party requesting a sale, direct a 
 sale of the property, and give all necessary 
 or proper consequential directions, and in 
 case of such undertaking being given the 
 Court may order a valuation of the share of 
 the party requesting a sale in such manner 
 as the Court thinks fit, and may give all nec- 
 essary or proper consequential directions. 
 
 6. On any sale under this Act the Court fol!pa"ue8 
 
 45 
 
539 31 & 32 viCTOKi^, cap. 40. 
 
 Partition. 
 interested may, if it thinks fit, allow any of the parties 
 
 to bid. ^ 
 
 interested in the property to bid at the sale, 
 on such terms as to non-payment of deposit, 
 or as to setting oflF or accounting for the 
 purchase-money or any part thereof instead 
 of paying the same, or as to any other mat- 
 ters, as to the Court seem reasonable. 
 
 Application 7. Section Thirty of The Trustee Act, 
 Act. 1850, shall extend and apply to cases where, 
 
 (13&14Vict. ' ^^ ■' 
 
 c. 60.) in suits for partition, the Court directs a sale 
 
 instead of a division of the property. 
 
 Application 8. Scctions Twcnty-threc to Twenty-five 
 
 ot proceeds 
 
 °/J'?'^-,,. , (both inclusive") of the Act of the session 
 
 (19&20Vict. ^ J 
 
 C.120.) of the nineteenth and twentieth years of 
 Her Majesty's reign (Chapter One hundred 
 and twenty), "to facilitate Leases and Sales 
 of Settled Estates," shall extend and apply 
 to money to be received on any sale effected 
 under the authority of this Act. 
 
 Parties to 9. Any person who, if this Act had not 
 
 partition 
 
 suits. been passed, might have maintained a suit 
 
 for partition may maintain such suit against 
 any one or more of the parties interested, 
 without serving the other or others (if any) 
 of those parties ; and it shall not be compe- 
 
81 & 32 viCTORiiE, CAP. 40. 531 
 
 Partition. 
 
 tent to any defendant in the suit to object 
 for want of parties ; and at the hearing of 
 the cause the Court may direct such inqui- 
 ries as to the nature of the property, and 
 the persons interested therein, and other 
 matters, as it thinks necessary or proper 
 with a view to an order for partition or 
 sale being made on further consideration ; 
 but all persons who, if this Act had not 
 been passed, would have been necessary 
 parties to the suit, shall be served with 
 notice of the decree or order on the hearing, 
 and after such notice shall be bound by the 
 proceedings as if they had been originally 
 parties to the suit, and shall be deemed par- 
 ties to the suit; and all such persons may 
 have liberty to attend the proceedings ; and 
 any such person may, within a time limited 
 by general orders, apply to the Court to 
 add to the decree or order. 
 
 10. In a suit for partition the Court may costs in 
 
 parti tiou 
 
 make such order as it thinks just respect- suits. 
 ing costs up to the time of the hearing. 
 
 11. Sections Nine, Ten, and Eleven of the general 
 
 orders 
 
 Chancery Amendment Act, 1858, relative to ^"^'^'^"''^ 
 the making of general orders, shall have ^^27.r^'°'' 
 
532 31 & 32 viCTOKi^, cap. 40. 
 
 Partition. 
 
 effect as if thej' were repeated in this Act, 
 and in terms made applicable to the pur- 
 poses thereof. 
 
 .lunsdiction 12. Ill England the County^Courts shall 
 Courts in have and exercise the like power and autho- 
 
 partition. 
 
 (28&29Vict. rity as the Court of Chancery in suits for 
 partition (including the power and authority 
 conferred by this Act) in any case where 
 the property to which the suit relates does 
 not exceed in value the sum of five hundred 
 pounds, and the same shall be had and ex- 
 ercised in like manner and subject to the 
 like provisions as the power and authority 
 conferred by Section One of the County 
 Courts A.ti£ 1865.