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THE t&LlOF THE 
 
 DOMESTIC RELATIOl^S. 
 
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Cornell University 
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THE LAW OF THE^Vf^nfA^^^ 
 
 DOMESTIC RELATIONS. 
 
 INCLUDING 
 
 HUSBAND AND WIFE : PARENT AND CHILD : 
 GUARDIAN AND WARD : INFANTS : 
 
 AND 
 
 MASTER AND SERVANT. 
 
 WILLIAM PINDER^ERSLEY, B.C.L., M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT LAW. 
 
 SECOND EDITION. 
 
 LONDON: 
 
 STEVENS AND HAYNES, 
 
 ILain ^ublieiftxe, 
 
 BELL TAED, TEMPLE BAE. 
 
 1896. 
 
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Printed by Ballantyne, HANSON & Co. 
 At the Ballantyne Press. 
 
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 \<r 
 
 \ 
 
 TO V 
 
 SIR EDWARD CLARKE, Q.C., M.P., 
 IS DEDICATED 
 
 AS A TOKEN OF SINCEBE REGARD 
 
 BY 1113 
 
 FRIEND AND FORMER PUPIL, 
 
 THE AUTHOR. 
 
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Digitized by Microsoft® 
 
PREFACE TO THE SECOND EDITION. 
 
 In the second edition of this work it is hoped that the Profession 
 wUl recognize an improvement on the first. The ground work of 
 the book generally remains the same ; but in Part I., dealing 
 with the law of Husband and Wife, much alteration and modifica- 
 tion have been effected. A chapter is now devoted to the Con- 
 tracts of Married Women, which subject (perhaps more logically 
 and scientifically) was previously discussed under various sub- 
 headings in different chapters. For convenience of reference, it 
 is now set forth as a matter for separate treatment. In the 
 interval between the publication of the first edition and the 
 present time, a large amount of case law has been decided, inter- 
 preting the effect of the important piece of legislation known as 
 the Married Women's Property Act, 1882. The tendency of 
 our courts of law was quite observable in the interpretation put 
 upon it, viz., a reluctance to extend the scope of legislation one 
 jot further than is warranted by the words of the statute, and 
 the general principles of law in vogue at the time. An instance 
 of this tendency may be found in the necessity for passing the 
 Married Women's Property Act, 1893, which now, for the first 
 time, renders the contract of a married woman, in her sole and 
 personal capacity, efficacious and valid, though at the time of its 
 inception she is not possessed of any free property of her own. 
 The Act has not been altogether an unmixed blessing, for 
 creditors have suffered at the hands of unscrupulous spouses, who 
 have employed its privileges as an engine of fraud. A married 
 woman, so far as her proprietary rights and contractual powers 
 are concerned, is now, in nearly every particular, on the same 
 
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viii PEEFACE TO THE SECOND EDITION. 
 
 level as her unmarried sister or a man. The Legislature should 
 further remove the few differences that exist by cutting down 
 the effect of the restraint upon anticipation, and rendering a 
 married woman, though not a separate trader, amenable to the 
 bankruptcy law, and liable to be committed (if possessed of 
 means) for her post-nuptial liabilities. 
 
 In the domain of Parent and Child, a very important Act was 
 passed in 1886, which puts a mother in a most favourable 
 position in the matter of the guardianship of her children, 
 giving her practically co-ordinate rights with the father, and 
 rendering her title to their control and custody not only effec- 
 tive, but easily enforced. A curious feature of modern philan- 
 thropy (so called) is the dead set made by the courts at the 
 parental authority, especially as exemplified in the case of Reg. 
 V. Gyngall (1893) 2 Q. B. 242. 
 
 This philanthropy is still further visible in the number of 
 statutes passed for the health and morals of very young persons 
 — acta passed with the best intentions, but liable to be abused 
 unless enforced with discretion. 
 
 A reference once for all to the different reports of the decided 
 cases is now given in the Table of Cases. I must acknowledge 
 the valuable assistance rendered to me by my clerk, Mr. James 
 Berry, in the preparation of the Table of Cases. It has been 
 sought to make the Index full and complete. 
 
 This second edition is put forward with every wish that it 
 may prove of use to the Profession, and meet with the same 
 kindly treatment that was afforded to the first. 
 
 W. P. EVERSLEY. 
 
 6 King's Bench Walk, Temple, 
 June, i8g6. 
 
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PREFACE TO THE FIRST EDITION. 
 
 Down to the present time there has been no one work published 
 in England comprehensively treating of the legal relations of the 
 various units that comprise the family or domestic group. 
 Blackstone, it is true, touches upon them in his Commentaries, 
 but only by way of an outline sketch. There are three consider- 
 able works on the subject ; one Scotch, by Mr. Patrick Fraser 
 (now Lord Eraser), and two American, written respectively by 
 Mr. Reeve and Mr. Schouler. Lord Fraser's work has long since 
 been split up into separate volumes dealing with the component 
 subjects. The hope that a combined treatment of these varied 
 and important relations might be acceptable to English students 
 of the law has prompted the penning of these pages. 
 
 This book has been the result of rather over three years' 
 labour. No small portion of that time has been consumed in 
 rewriting or recasting those chapters in Part I. dealing with the 
 law of Husband and Wife, in consequence of the passing of the 
 Married Women's Property Act, 1882, for most of them had 
 been written before that Act was so quickly despatched through 
 both Houses of Parliament. The full effect of this Act is as yet 
 but dimly seen. 
 
 In the first part of this work a divergence from the ordinary 
 beaten tracks of the text writers has been ventured upon. There 
 are chapters devoted to a short consideration of the marriage 
 laws of Scotland and Ireland, and the international aspect of 
 marriage and divorce. These have been added, because it was 
 deemed of sufficient moment to notice the marriage laws, in so 
 far as they difier from the English, of -those countries which 
 
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I PEEFACE TO THE FIEST EDITION. 
 
 form an integral part of this empire, and between the peoples of 
 which frequent intermarriages take place. Knowledge, too, of 
 the effect given to the status of marriage and divorce by the 
 tribunals of the various civilized nations is rendered not only 
 useful but even necessary by reason of the many intermarriages 
 of British subjects and foreigners which have been the direct out- 
 come of modern facilities of intercourse and travelling. 
 
 Infancy by itself cannot, of course, be properly styled a 
 " domestic relation." On the one hand, it is intimately 
 connected with the parental and tutorial relations ; on the 
 other, a large part of the law dealing with it lies outside of 
 those relations ; but because of its importance it has been 
 deemed advisable to discuss it in this treatise, though separately 
 and apart. 
 
 The chief aim in this work has been to give the general 
 principles underlying the subjects discussed ; to enter fully upon 
 all their bearings and details would have been impossible ; but, 
 at the same time, when the importance of any particular subject 
 demanded it, a more thorough and comprehensive treatment of it 
 will be found. 
 
 I am much indebted to Lord Fraser for that portion of the 
 book which deals with the Scotch law of marriage ; and to 
 Mr. Schouler generally, for many valuable hints of arrangement, 
 and for his accurate research into English case law. I have 
 striven to show both in the text and notes the sources from 
 which I have derived my information ; and passages cited 
 verbatim are marked as such. Mr. L. G. Eobbins, of Lincoln's 
 Inn, was good enough to read over some of the chapters in Part 
 IV. ; and Mr. H. T. Banning, of the Inner Temple, rendered me 
 assistance in revising the chapter on Marriage Settlements. 
 I am also under obligations to Mr. W. B. Hartopp, of the 
 Midland Circuit, for his kindly aid in preparing the Table of 
 Cases. 
 
 W. P. EVEESLEY. 
 
 7 King's Bench Walk, Temple. 
 
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CONTENTS. 
 
 »* Far an analysis of each chapter, see the heginning of the chapters 
 in the hody of the work. 
 
 PAKT I. 
 
 HUSBAND AND WIFE. 
 
 CHAP. PAGES 
 
 I. The Legal Chabactbe of Marriage . . . . i-ii 
 
 II. A Short History of the Marriage Laws of England 12-23 
 
 III. The Marriage Laws of Scotland . . 24-43 
 
 IV. The Marriage Laws op Ireland . 44-60 
 V. Impediments to Marriage .... . 61-85 
 
 VI. The Essential Ebquieembnts of a Valid Marriage . 86-1 11 
 VII. Action fc(R Breach of Promise of Marriage . . 112-119 
 VIII. Marriage Settlements . . . 120-165 
 IX. Personal Bights of the Spouses created by Cover- 
 ture ... . 166-177 
 X. Proprietary Rights of the Spouses created by 
 
 Coverture 178-214 
 
 XI. Proprietary Rights of the Spouses created by the 
 
 Termination of Coverture . . . 215-240 
 
 XII. The General Effect of Coverture . 241-252 
 
 XIII. Obligations arising out of Coverture . 253-276 
 
 XIV. Contracts by Married Women . . 277-338 
 XV. Separate Estate . . 339-4o8 
 
 Appendix . . 409-418 
 
 XVI. Actions by and Against Husband and Wife 419-433 
 
 XVII. Agreements for Separation . ... 434-452 
 
 XVIII. International Aspect op Marriage and Divorce . 453-473 
 
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CONTENTS. 
 
 PAET II. 
 
 PARENT AND CHILD. 
 
 CHAP. 
 
 PAGES 
 
 I. Legitimacy . . 474-4^9 
 
 II. Rights and Obligations of Parents in Respect of 
 
 THE PeESONS of CHILDREN . . . 490-527 
 
 III. Rights and Obligations of Parents with Respect to 
 
 the Property op Children . . 528-550 
 
 IV. Duties and Eights of Children in Respect of their 
 
 Parents . . ■ . ■ • SS'-SS^- 
 
 V. Rights and Liabilities of Parents in Respect op 
 
 Torts Done to ok by the Child . . 557-5^4 
 
 VI. Illegitimate Children . 565-581 
 
 PART III. 
 
 GUARDIAN AND WARD. 
 
 I. Nature of the Office of Guardian . . 582-585 
 II. The Different Kinds op Guardians, and the Methods 
 
 OP Appointing them ... . 586-613 
 
 III. Judicial Contbol over Guardians . 614-620 
 
 IV. Termination of Guardian's Office 621-628 
 V. Eights and Duties of Guardians in Respect of the 
 
 Person op the Ward 629-657 
 
 VI. Rights and Duties op Guardians in Respect op the 
 
 Property of the Ward ... . . 658-696 
 
 VII. Rights op Ward on the Termination of the Guar- 
 dianship 697-710 
 
 PART IV. 
 
 INFANTS. 
 
 I. Capacities, Disabilities, and Immunities op Infants. 711-718 
 
 II. Acts and Contracts op Infants . . . 719-757 
 
 III. Ratification and Avoidance op Acts and Contracts 758-760 
 
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CONTENTS. 
 
 CHAP. 
 
 IV. Mabeiage Settlements op Infants 
 V. Wabds of Coubt .... 
 VI. Remedies fob the Protection of Infants 
 VII. Actions by and against Infants 
 
 Xlll 
 
 PAGES 
 770-779 
 780-799 
 800-807 
 808-820 
 
 PART V. 
 
 MASTER AND SERVANT. 
 
 I. Domestic and Menial Sebvants 821-826 
 
 II. Parties to the Contbact . . . 827-830 
 
 III. The Contbact of Hieing and Service .... 831-834 
 
 IV. Determination of the Contbact op Hieing and 
 
 Service . . 835-840 
 
 V. The Contract of Apprenticeship . . . 841-850 
 
 VI. The Servant's Charactee 851-858 
 
 VII. Rights and Duties op Master and Servant . . 859-874 
 VIII. Relations of Master to Thied Persons Created by 
 
 Acts op the Servant . 875-889 
 
 IX. Relations of Servants to Third Persons Cbbated by 
 
 Acts Done on Behalf op Mastee .... 890-893 
 
 X. Offences by Sebvants . . 894-899 
 
 INDEX . 
 
 . 901-1011 
 
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TABLE OF CASES. 
 
 347 
 802 
 426 
 212 
 
 229 
 814 
 126 
 274. 275. 328 
 
 PAGB 
 
 A v. B and another (L. K. i P. & D. 559) . . . . -63 
 
 A'b Divorce Bill (12 App. Cas. 365) 60 
 
 A (othermse 31) r. M (10 P. D. 178 ; 54 L. J. P. 31 ; 33 W. K. 232) . . 163 
 
 Abbott, Exparte (i Deac. 338) 
 
 Abbott V. Macfie (33 L. J. Ex. 177 ; 12 W. E. 315 ; 10 Jur. N. S. 682 ; 2 H. & C. 744) 
 
 AboulofE V. Oppenheimer (30 W. K. 429) 
 
 Abraham v. Newcome (12 Sim. 566) ... 
 
 Abram v. Aldrldge, Re Aldridge (55 L. T. 554) . . . 653, 654 
 
 Aburrow v. Aburrow (10 Sim. 602) .'...'... . 694 
 
 Ace7 V. Simpson (5 Beav. 35) 
 
 Acres v. Little (7 Sim. 138) 
 
 Acton V. Pierce (2 Vem. 480) 
 
 Adair 1'. Shaw (i Sch. & Lef. 243) . 
 
 Adams Policy Trusts, Re (23 Ch. D. 525 ; 52 L. J. Ch. 642 ; 48 L. T. 727 ; 31 W. R 
 
 810) , . 322 
 
 Adames', Tmats, Re (54 L. J. Ch. 878 ; 53 L. T. 198 ; 33 W. E. 834) . 357 
 
 Adams, Re (57 L. T. 337) . . 816 
 
 Adams, Re, Adams v. Adams ([1893] i Ch. 329 ; 62 L. J. Cb. 266 ; 68 L. T. 376 ; 41 
 
 W. E. 329) . . 641, 64s 
 
 Adams and the Vestry of St. Mary Abbotts, Kensington (27 Ch. D. 394 ; 54 L. J. Cb. 
 
 87 ; SI L. T. 382 ; 33 W. E. 883) . . 643 
 
 Adamson v. Armitage (19 Ves. 415) . 346, 348 
 
 Adamson i\ Jarvis (4 Bing'. 66 ; 12 Moore, 241) 868 
 
 Agar-Ellis, Re, Ag:ar-BIIis v. Lascelles (10 Ch. D. 49 ; 48 L. J. Cli. i ; 39 L. T. 380 ; 
 
 27 W. E. 117) 492, 493, 497, 498, 499, 500, SOI, 503, S04, 508, 523. 526. 590. 616, 
 
 630, 784 
 
 Agullar V. Aguilar (s Madd. 414) . 194, 288 
 
 AUesbnry, Re Marquis of, and Lord Iveagh ([1893] 2 Ch. 345 ; 62 L. J. C'li. 713 ; 69 
 
 L. T. loi ; 41 W. E. 644) .... . .386 
 
 Ainslie v. Medlicott ( 9 Ves. 13 ; 13 Ves. 266) . . 424, 776 
 
 Aitchison v. Dixon (L. E. 10 Eq. 589 ; 39 L. .T. Ch. 70s ; 23 L. T. 97 ; 18 W. E. 989) . 200 
 Akeroyd's Settlement, Re EobPrts ;■. Akeroyd ([1893] 3 Ch. 363 ; 63 L. J. Ch. 32 ; 69 
 
 L. T. 474) . . . . .140 
 
 Aldrich v. Cooper (8 Ves. 397) . . . . . 407 
 
 Aldridge, Re, Abram r. Aldridge (ss L. T. 554) 653, 654 
 
 Aldridge v. Aldridge (otherwise M) (13 P. D. 210 ; s8 L. J. P. 8 ; s8 L. T. 896 ; 37 W, 
 
 E. 240) • • • 
 
 Aleson v. Aleson (2 Lee, 576) .... . • 
 
 Alexander v. Calder, R- Wilson (28 Ch. D. 4S7 ; S4 L. J. Ch. 487 ; 33 W. E. 579) 
 Alexander !■. Gibson (2 Camp. 555) . ... . . 
 
 Alford, Re, Hunt v. Parry (32 Ch. D. 383 ; SS L. J. Ch. 659 ; 54 L. T. 674 ; 34 
 
 773) .... . . . • • 
 
 Alfred V. Fitqames (3 Esp. 3). . . 
 
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 66 
 
 6S 
 807 
 878 
 VV. R. 
 
 S45, 648 
 • 863 
 
TABLE OF CASES. 
 
 Alison's Trusts, Re (31 L. T. 638 ; 23 W. B. 226) 
 
 Allan, He, Havelock v. Havelock (17 Ch. D. 807 ; 50 L. J. Ch. 778 ; 44 L. T. 168 
 W. E. 849) . . .... . . 
 
 Allan V. Backhouse (2 V & B. 65) . 
 
 Allen, lie ( [1894] 2 Q. B. 924 ; 63 L, J. M. C. 267 ; 43 W. E. 141) 
 
 Allen V, Allen (2 Dr. & W. 307) ....'. 
 
 ' Allen V. Jaekson (i Ch. D. 399 ; 45 L. .1. Ch. 310 ; 33 L. T. 713 ; 24 W, 
 AUen V. Lloyd, lie Lloyd (12 Ch. D. 447 ; 41 L. T. 371 ; 28 W. E. 8) 
 Allen I'. L. & S. W. Ey. Co. (L. E. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23 L, 
 B. 127) 
 
 E. 306) 
 
 29 
 648, 
 
 724. 
 
 T. 612 ; 19 W. 
 
 ISS ; 31 W. E. 
 
 46 L. T. 850 ; 30 W. E. 
 
 23s. 
 
 276, 
 
 347. 
 562) 
 
 W. E. 
 
 AUfrey V. Allfrey (17 L. J. Ch. 30 ; 10 Beav. 353') . 
 
 Allnutt, Be, Pott v. Brassey (22 Ch. D. 275 ; 52 L. J. Ch. 299 ; 48 L. T, 
 
 469) 
 
 Alston, In the goods of ([1892] P. 142 ; 61 L. J. P. 92 ; 66 L. T. 591) 
 Alt V. Alt (4 Giffl. 84) . . . ... 
 
 Alton r. Midland Eailway Co. (34 L. J. C. P. 292; 12 L. T. 703; 13 W. E. 918 ; 11 Jur. 
 
 N. S. 672 ; 19 C. B. N. S. 213) 
 Ambrose v. Kerrison (20 L. J. C. P. 135 ; 10 C. B. 776) . 
 Ajues, Be, Ames r. Taylor (25 Ch. D. 72 ; 32 W. E. 287) 
 Ames V. Parkinson (7 Beav. 384) 
 Amhurst v. Selby (11 Vin. Abr. 377. pi 8) 
 
 Amor V. Fearon (9 A. & E. 548) 
 
 Anderson v. Abbott (3 .Jur. N. S. 833 ; 23 Beav. 457) 
 
 Anderson v. Anderson (2 Myl. & K. 427) 
 
 Anderson v. Atkinson (21 Ch. D. 100 ; 51 L. J. Ch. 452 ; 
 
 Anderson v. FuUerton (Hume, Decisions, 365) 
 
 Anderson v. Gill (3 Macq. 180) ... . . 
 
 Anderson D. Hay (7 Tim. L. E. 113') 
 
 Anderson v. Piffnet (8 L. E. Ch. App. 180 ; 42 L. J. Ch. 310 ; 27 L. T. 740 
 
 150) • ■ • ■ • 
 
 Andrew v, Andrew (3c L. T. 457 ; 22 W. E. 684) ... . . 
 
 Andrewes v. Garstin (31 L, J. C. P. 15 ; 10 C. B. N. S. 44) 
 
 Andrews, lie (7 Ch. D. 635 ; 38 L. T. 137 ; 26 W. E. 572) 
 
 Andrews, lie (L. E. 8 Q. B. 153 ; 42 L. J. Q. B. 99 ; 28 L. T. 353 ; 21 W. E. 480) 
 
 496, 498, 597, 600, 629, 
 Andrews, Re, Edwards v. Dewar (30 Ch. D. 159 ; 54 L. J. Ch. 1049 i S3 L. T. 422) 
 
 381, 
 Andre .vs 0. Andrews, Be D'Angibau (15 Cli. D. 228 ; 49 L. J. Ch. 756; 43 L. T. 135; 
 
 28W. E. 930) . 147.372,373,732. 
 
 Andrews v. Parting^ton (2 Cox, Eq. Cas. 223) 5^^ 
 
 Andrews v. Eoss (14 P. D. 15 ; 58 L. J. P. 14 ; 59 L. T. 900 ; 37 W. E. 239) . 
 
 Andrews v. Salt (L. E. 8 Ch. App. 622 ; 28 L. T. 606 ; 2i,W. E. 431, 616J . 496, 
 
 523, 526, 6i6, 620, 
 Andros i\ Andros (24 Ch. D. 637 ; 52 L. J. Ch. 793; 49 L. T. 163) 
 
 Anjel v. Smith (9 Ves. 335) . . 
 
 Ann, Be, Wilson e. Ann ([1894] i Ch. 549 ; 63 L. J. Ch. 334 ; 70 L. T 
 
 Annandale, Marchioness of v. Harris {2 P. Wms. 432) . 
 
 Anon. (2 Vem. 706) . . .... 
 
 Anon. (3 Atk, 618) . . , . 
 
 Anon. (Jac. 254 //) 
 
 Anon. (.Tae. 265 ») . 
 
 Anon. (4 Leon. 4, c. xv) 
 
 Anon. (4 Madd. 461) 
 
 Anon. (4 Euss. 473) 
 
 Anon. fSalk. 44) . . . . . 
 
 Anon. (Salk. 117) ... 
 
 Anon. (8 Sim. 346) . 
 
 Anon. {2 Sim. Eep. N. S. 54) 
 
 Anon, (i Ves. 409) ... 
 
 Anon. (2 Ves. Sen. 56) . . ... 
 
 Anon. (2 Ves. Sen. 374) 
 
 273) . 
 
 374. 
 
 PAGE 
 106 
 
 650 
 681 
 176 
 738 
 10 
 810 
 
 886 
 
 585 
 
 135 
 252 
 126 
 
 862 
 
 313 
 701 
 688 
 200 
 837 
 134 
 349 
 485 
 32 
 33 
 287 
 
 224 
 656 
 838 
 162 
 
 630 
 
 426 
 
 77S 
 656 
 80 
 498 
 786 
 4S5 
 693 
 396 
 577 
 
 616, 617 
 
 496 
 797 
 765 
 814 
 796 
 
 713 
 
 242 
 
 495 
 503 
 810 
 
 63s 
 631 
 
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TABLE OF CASES. 
 
 xvii 
 
 20 L. T. 600) 
 
 Anou. c. Anon. (22 Beav. 481) 
 
 Anon. i>. Harrison (12 Mod. 346) 
 
 Appleton r. Kowloy (L. K. 8 Eq. 139 
 
 Arabin's Trusts, Ef. (52 L. T. 728) 
 
 Arbery v. Ashe (i Hag. Ecol. Kep. 214) . 
 
 Arbuckle, lie (14 L. T. 538 ; 14 W. R. 535) . 
 
 Archard i. Hornor (3 C. & P. 349) . 
 
 Archer r. Hudson (7 Bear. 551) 
 
 Archer r. Kolly (i Dr. & S. 300) . 
 
 Archer c. Prall, Jie Smeed (54 L. T. 929) 
 
 Archer v. Korke (7 Ir. Eq. Kep. 478) . 
 
 Argar i: Holdsworth (2 Lee, 515) . 
 
 Armit's Trusts, lie (Ir. Eep. 5 Eq. 352) 
 
 Armitage y. Coates (35 Beav. i) 
 
 Armstrong, He, Ex parte Boyd (21 Q. B. D. 264 
 
 W. E. 772) ... . . 
 
 Armstrong, Me, Exparte Gilchrist {17 Q. B. D. 521 ; 55 L. J. Q. B. 578, 
 
 34 W. E. 709) 
 Armstrong r. Armstrong (L. E. 7 Eq. 518 ; 38 L. J. C'li. 463 ; 20 L. T 
 
 570) 
 
 Arnold v, Bidgood {Cro. Jac. 318) 
 
 Arnold v. Burt, Re Jeflery (No. 2) ([1895] 2 Ch. 577 ; 64 L. J. Ch. 830 
 
 44 W. E. 61) 
 
 Arnold V. Kayess, Re Taber's Estate (46 L. T. 305^; 30 W. E. 883) 
 Arnold v. Woodhams CL. E. 16 Eq. 30 ; 42 L. J. Ch. 578 ; 28 L. T. 351 
 
 57 L. J. Q. B. 553 ; 
 
 PAGE 
 
 ■ 567 
 . 846, 880 
 
 . 217 
 . 192 
 
 ■ 329 
 . 641 
 
 . 840, 865 
 
 535. 537. 538. 709 
 
 . . 138 
 
 648 
 
 • 346 
 
 ■ 94 
 
 • 778 
 
 • ■ ' • 389 
 59 L. T. 806 ; 36 
 
 ■ 32°. 379. 392 
 ; 55 L. T. 538, 
 
 • 320. 345 
 776 ; 17 W. E. 
 
 73 L. T. 332 ; 
 
 188 
 328 
 
 64s 
 377 
 
 58 L. T. 632 ; 35 W. E. 507) 
 
 Arrowsmith v. Dickenson (20 Q. B. D. 252 
 
 Arthur r. Arthur (11 Ir. Eq. Eep. 511) .... 
 
 Arundell v. Arundell (i Myl. & K. 316) . 
 
 Ash V. Ash ([1893] P. 222 ; 62 L. J. P. 97 ; 68 L. T. 500) 
 
 AshbuTton v. Ashburton (6 Ves. 6) 
 
 Ashby i\ Ashby (i Coll. 553) 
 
 Ashe's- Case (Freem. C. C. 259 ; Prec. Ch. 703) 
 
 Ashton V. HcDougall (5 Bear. 56) . 
 
 Ashworth i. Outram (5 Ch. D. 923 ; 46 L. J. Ch. 687 ; 37 L. T. 85 
 
 Ashworth i-. Stanwix (30 L. J. Q. B. 183 ; 4 L. T. 85 ; 7 Jur. N. S. 467; 
 
 21 W. E. 972) 
 
 385. 387 
 ■ 552 
 346 
 226 
 316 
 665 
 197 
 76 
 
 • 348. 773 
 ; 25 W. E. 896) 
 
 202, 292, 317, 345 
 3 El. & El. 701) 
 
 873 
 Askew V. Eooth (L. E. 17 Eq. 426 ; 43 L. J. Ch. 368 ; 30 L. T. 155 ; 22 W. E. 524) 
 AhIciti v, Ferguson, Re Llndo (59 L. T. 462) .... 
 Aste V. Montague (i F. & F. 264) ... . . 
 
 Aston V. Aston (i Ves. 267) 
 
 Atcherley v. Vernon (10 Mod. 518) ... 
 
 Atchinson v. Baker (Peake, Add. Cas. 103) . 
 
 Atchley v. Sprigg, (33 L. J. Ch. 345) . . . . 
 
 Atkin V. Acton (4 C. & P. 208) 
 
 Atkins V. Curwood (7 C. &. P. 567) . . . . 
 
 Atkyns v. Pearce (26 L. J. C. P. 252 ; 3 Jur. N. H. 1180 ; 2 C. B. 
 
 Attorney-General v. Clements (L. E. 12 Eq. 32 ; 40 L. J. Ch. 678 
 
 Attorney-General v. Jacobs-Smith ([1895] 2 Q. B. 341 ; 64 L. J 
 
 714; 43 W. E. 657 ; 59 J. P. 468) 
 Attorney-General v. Lucas (2 Ph. 753) .... 
 Attorney-General v. Duke ol Marlborough (3 Madd. 498) 
 Attorney-General v. Pamther (4 Bro. C. C. 409) . 
 Attorney-General v. Eead (L. E. 12 Eq. 38) . 
 Atwood V. Atwood (Ch. Prec. 492) . 
 Atwood V. Chichester (3 Q. B. D. 722 ; 47 L. .7. Q. B. 300 ; 38 L. T. . 
 
 Audley's Case, Lord (3 St. Tr. 401) 
 
 Augier v. Augier (Prec. Ch. 496) . . . ' 
 
 Austen v. Halsey (2 Sim. & St. 123 11 ) 
 
 • 234 
 . 225 
 . 880 
 
 405 
 
 • 347 
 114, 118 
 
 477. 479 
 
 • 838 
 . 30S 
 
 N. S. 763) . . 308, 880 
 
 24 L. T. 384) . . 90 
 Q. B. 605 ; 72 L. T. 
 
 . 148 
 
 . 90 
 
 . 682 
 
 • 367 
 . 90 
 . 169 
 
 26 \y. E. 320) 
 
 331. 335. 336. 337 
 
 169, 244 
 
 . 40 
 
 • 793. 794 
 
 h 
 
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xviii TABLE OF OASES. 
 
 ' PAGE 
 
 Aueter v. PoweU (i De G. J. & S. 99) -544 
 
 Austin V. Austin (4 Ch. D. 233 ; 46 L. J. Cli. 92 ; 36 L. T. 96 ; 25 W. E. 346) 
 
 347. 523. 524 
 Austin V. Austin (34 L. J. Ch. 192, 499 ; 11 L. T. 616 ; 13 W. K. 332 ; 11 Jar. N. S. 
 
 536 ; 34 Beav. 257 ; 4 De G. J. & S. 716) . 495 
 
 Austin V. Great Western Railway Co. (L. K. 2 Q. B. 442 ; 36 L. J. Q. B. 201 ; 16 L. T. 
 
 320; 15W. E. 863) .... 803 
 
 Avery v. Griffin (L. E. 6 Eq. 6o5 ; 18 L. T. 849) . . . . • • S^S 
 
 Aveson v, Kiunaird, Lord (6 East, 192) ... 240 
 
 Axford V. Eeid (22 Q. B. D. 548 ; 58 L. J. Q. B. 230 ; 60 L. T. 726; 37 W. E. 291) 
 
 263-265, 3SS, 380, 430, 431 
 Ayerst v. Jenltins (L. E. 16 Eq. 27 ; 42 L. J. Ch. 290 ; 29 L. T. 126 ; 21 W. E. 878) 146 
 
 Aylesford, Countess of, v. Great Western Eailway Co. ([1892] 2 Q. B. 626 ; 41 W. E. 42) 336 
 Ayleslord, Earl of, !'. Morris (L. E. 8 Ch. App. 484; 42 L. J. Ch. 546 ; 28 L. T. 541 ; 
 
 21 W. E. 424) 549 
 
 Aylesford Peerage Case, The (11 App. Cas. i) ... 478, 479, 567 
 
 Aylett V. Ashton (i Myl. & Cr. 105) 33Si 33^ 
 
 AylifEe v. Tracy (2 P. Wms. 66) . . . . . . • I44 
 
 Aylward v. Kearney (2 Ba. & B. 463) . . .... 700, 703, 708 
 
 Ayres, In the goods of, (8 P. D. 168 ; 52 L. J. P. 90 ; 31 W. E. 660) . ■ • 33° 
 
 B. V. B. (I Eccl. & Adm. Eep. 248) 64, 66 
 
 B. V. L. (L. E. I P. & D. 639 ; 38 L. J. P. M. & A. 35 ; 20 L. T. 280 ; 16 W. E. 943) . 64 
 
 B. V. M. (2 Eob. Eccl. Eep. 580) . 65, 66 
 
 Bablngton v. Greenwood (i P. Wms. 531) . 59^ 
 
 Bachelor u. Forteseue (11 Q. B. D. 474; 47 J. P. 808) 873 
 
 Baddeley v. Baddeley (9 Ch. D. 113 ; 38 L. T. 906 ; 26 W. E. 850) . 293 
 
 Baddeley v. Mortlock (Holt, 151) 119 
 
 Baggett V. Menx (7 L. T. O. S. 41 ; i Coll. 138 ; i Ph. 627) . . . 348, 375, 376, 377 
 
 Bagot V. Bagot (11 L. T. 437 ; 13 W. E. 169 ; 32 Bear. 509) 684 
 
 Bahin v. Hughes (31 Ch. D. 390 ; 55 L. J. Ch. 473 ; 54 L. T. 188 ; 34 W. E. 311) 273 
 
 Baillie v. Treharne (17 Ch. D. 388) ....... . 188 
 
 Bain «. The Attorney General ([1892] P. 267 ; 61 L. J. P. 135 ; 67 I.. T. 447 ; 40 VV. K. 
 
 505) ... - .... .487 
 
 Bain v. Lescher (11 Sim. 397) 347 
 
 Bainbridge, Be (8 Ch. D. 21S ; 26 W. E. 439) . . . . 199 
 
 Bainbridge v, Plcliering (2 W. Bl. 1325) ... . 750, 751 
 
 Baines v. Toye (13 Q. B. D. 410 ; 53 L. J. Q. B. 567 ; 51 L. T. 292 ; 33 W. E. 15) 314, 750 
 
 Baker v. Bayldon (8 Ha. 210) . 208, 209 
 
 170, 562 
 
 376 
 
 . 118 
 
 . 692 
 
 Baker v. Bolton (i Camp. 493) 
 
 Baker v. Bradley (7 De G. M. & G. 597 ; 25 L. J. Cli. 7.; 2 Jur. N. S. 98) . 
 Baker v. Cartwright (30 L. J. C. P. 364 ; 7 Jur. N. S. 1247 ; 10 C. B. N. S. 124) . 
 Baker v. Farmer (L. E. 3 Ch. App. 537; 37 L. J. Ch. 820 ; 16 W. E. 923) . 
 
 Baker v. HaU (12 Ves. 497) . . 199, 200 
 
 Baker r. Sebright (13 Ch. D. 179 ; 49 L. J. Ch. 65 ; 41 L. T. 614 ; 28 W. E. 177) 683 
 
 Baker D. White (2 Vern. 215) .11 
 
 Baker's Case (L. K. 7 Ch. App. 115 ; 41 L. J. Ch. 275 ; 25 L. T. 276 ; 20 W. E. 169) 767 
 
 Baldry v. Bates (52 L. T. 620) 878 
 
 Baldwin v. Cassella (L. E. 7 Ex. 325 ; 26 L. T. 707) ... . . 881 
 
 Balfour v. Carpenter (i Phill. 221) .... .... 88 
 
 Ball r. Ball (2 Sim. 35) . . . ... . 504 
 
 Ball V. Couits (I V. & B. 292) .... . . 214, 788, 790, 791 
 
 Baltimore's Case, Lord (Harg. n. 15 to Co. Litt. 88b) 601 
 
 Banbury I'eerage Case, The (i Sim. & St. 153 ; Nio. Ad. Bast.) . . . 477, 480-483 
 Bancroft v. Mitchell (L. E. 2 Q. B. 549 ; 36 L. J. Q. B. 257 ; 16 L. T. 558) . . 552 
 
 Banks r. Crossland (L. E. 10 Q. B. 97 ; 44 L. J. N. C. 8 j 32 L. T. 226 ; 14 W. E. 414) 833 
 Banks v. Goodfellow (L. E. 5 Q. B. 549 ; 39 L. J. Q. B. 237 ; 22 L. T. 813) . . . 76 
 Banks i>. Heaven, Me Burton's Will ([1892] 2 Ch. 38 ; 61 L. J. Ch. 702 ; 67 L. T. 221) 
 
 64T, 645 
 
 Barber, lis (11 Ch. D. 442 ; 40 L. T. 649 ; 27 W. E. 813) igg 
 
 Barber v. Barl-er (3 Myl. & Cr. 688) . . .638 
 
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TABLE OF CASES. 
 
 XIX 
 
 PAGE 
 
 Barber r. Gregson (49 L. .T. Ex. 731 ; 43 L. T. 428) . ... 331 
 
 Barden v. Keverberg (2 M. & W. 61) . . . . . . . 279 
 
 Barling 0. Bishopp (29 Beav. 417) . . . . . ... 158 
 
 Barlow i: Bishop (1 East, 432) .... . . . igS 
 
 Barlow e. Cooke (5 Ves. 461) ... .... . 605 
 
 Barlow r. Grant (i \'erii. 255) 198, 655, 656 
 
 Barnard, jRe, Barnard v. WMte (56 L. T. 9) . . . . . . 143 
 
 Barnard r. Ford (L. E. 4 Ch. 247 ; 38 L. J. Cli. 671 ; 20 L. T, 289; 17 W. K. 478) . 213 
 Barnardo v. MoHngh ([1891] App. Cas. 388 ; 65 L. T. 423 ; 40 W. E. 97) 
 
 502, S7S, 589, 603, 784 
 
 Barnes c. Vincent (5 Mod. P. C. 201) ... 371 
 
 Barrack c. McCuUocli (5 W. R. 38 ; 3 K. & J. no) . . . . 294, 398, 399 
 
 Barrett r. Hartley (L. K. 2 Eq. 789 ; 14 L. T. 474; 14 W. E. 684 ; 12 Jur. X. S. 426) 701 
 
 . . . . . . . 789 
 
 T. O. S. 198 
 
 3 W, E. 122 ; 5 De G. M. & G. 
 
 20g, 210, 389, 773 
 773 
 572 
 5°7 
 736 
 734 
 . 870 
 870, 881 
 
 , N. .s. 767) 
 
 ; 36 L. J. Ex. 147J 
 
 Barrington r. Grogan (Beatt. 199) . 
 Barrow v. Barrow (25 L. J. Ch. 267 ; 24 L 
 
 782 ; 18 Beav. 529) 
 Barrow c. BaiTOW (4 K. & J. 409) . . . . . 
 
 Barry i'. Barry (i Moll. 210) 
 
 Bartlett, Be (2 Coll. 661) . . ... . . 
 
 Bartlett c. Emery (i T. E. 42 ») . • ■ • • 
 
 Bartlett i: Wells (31 L. J. Q. B. 57 ; 5 L. T. 607 ; 10 W. K. 229 ; 8 Jur. N. S. 762) 
 
 Bartonshill Coal Co. r. McGuiro (3 Macq. H. L. Cas. 300) 
 
 Bartonshill Coal Co. i: Eeid (3 Macq. H. L. Caa. 266 ; 4 Jur 
 
 Barwick t\ Englisli Joint-Stock Bank (L., E. 2 Ex. 259, 265 
 
 Baseley v. Baseley (4 CI. & Fin. 378 h) ■ 
 
 Basevi v. Serra (3 Mer. 674) . 
 
 BashaU v. Basball (11 Tim. Kep. 152) ... . . 
 
 Basnett v. Moxon (L. E. 20 Eq. 182 ; 44 L. J. Ch. 557 ; 23 W. E. 945) 
 
 Basset's Case (Dyer, 136a) 
 
 Batchelor, Jie (L. E. i6 Eq. 481 ; 43 L. J. Ch. loi ; 21 W. E. 901) 
 Bateman c. Conntess of Eoss (i Dow, H. L. 235) .... 
 Bates f. Dandy (2 Atk. 207) . . . . ' 
 Bathe c. Bank of England (4 K. & J. 564) 
 
 Bathnrst i: Murray (8 Ves. 74) . 
 
 Batstonc r. Salter (L. E. 10 Ch. App. 431 ; 33 L. T. 4 ; 23 W. E. 816) . 
 
 Battersbee i: Fan'ington (i Swanst. 106) ... 
 
 Battersby's Estate, Me (19 L. E. Ir. 359) 
 
 Baxtar c. Buckley (i Lee, 42 ) . . . 
 
 Baxter r. Burfleld (2 Stra. 1266 ; 1 Bott, 579) 
 
 Baxter c. Nurse (i C. & K. 10 ; 6 M. & G. 935) 
 
 Baxter r. Earl of Portsmouth (5 B. & C. 170) 
 
 Bayard (/. c. Morphew) c. Morphew (2 I'hill. 321J. 
 
 Bayley i\ Manchester, ShcflQeld, and Lincolnshire Eailway Co. (.L. E. 8 C 
 
 L. J. C. 1'. 78 ; 26 L. T. 366) 88 
 
 Bayley's Settlement, Jle (L. K. 6 Ch. App. 590 ; 25 L. T. 249; 19 W. E. 789) 
 
 Baylis i: Baylis (L. E. i 1*. & D. 395 ; 36 L. J. P. M. & A. 89 ; 16 L. T. 613 ; 15 W. E 
 
 1092) . .... . 
 
 Baylis r. Dineley C3 M. & S. 477; . . 
 
 Baynton i: ColUns (27 Ch. D. 604; 53 L. J. Ch. 1112 ; 51 L. T. 681 ; 33 W. K. 41) 
 
 Bayspoolc c. Collins (L. E. 6 Ch. App. 228) 
 
 Bazeley i: Forder (L, E. 3 Q. B. 563 ; 37 L. J. Q. B. 237 ; 18 L. .1. 756 ; 9 B. & S. 599) 
 
 314, 516, 520 
 Beachcrolt r. Beacheroft (i Madd. 430) . . . . . . 568 
 
 Beachey c. Drown (29 L. J. Q. B. 105; 8 W. E. 292 ; 6 Jm-. X. S. 345 ; Kl. Bl. & El. 
 
 796) • • 119 
 
 Beale, -Be, j^a; porte Corbridgc (4 Ch. D. 246; 46 L. J. Bk. 170; 35 L. T. 768; 25 
 
 • 790 
 
 • 147 
 407, 408 
 
 . 667 
 
 • 71S 
 
 • 205 
 168, 443 
 
 . 185 
 
 • 352 
 788, 795 
 
 • S4S 
 
 155. 
 
 1>. 148 ; 42 
 
 158 
 542 
 
 14 
 847 
 832 
 830 
 
 80 
 
 ,88s 
 539 
 
 725 
 357 
 160 
 
 W. E. 324) 
 
 Beale r. Arabin, (36 L. T. 249) 
 Beamish v. Beamish (9 H. L. Cas. 274 ; 
 
 Beard c. Beard (3 Atk. 72) 
 
 5 L. T. 97 ; 8 Jur. X. 
 
 312 
 
 , 770 ; II Ir. C. L. 514) 
 
 6, 14, IS, 19, 4S, 97 
 
 202 
 
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XX TABLE OF OASES. 
 
 ' PAGE 
 
 Beard v. BoUwood (89 L. T. Jo. 27) . . • ' '^^g. 
 
 Beard v. Travers (i Ves. Sen. 313) . 
 
 Beasley r. Magrath (2 Sch. & L. 31) . . • • ^^' 
 
 Beasley v. Eouey ([1891! i Q. B. 509 ; 60 L. J. Q. B. 408 ; 65 L. T. I53 : 39 W. E. 41S) ^3- 
 
 Beattie i: Johnstone (i Ph. 17 ; 10 CI. & F. 42) ■ °^ 
 
 Bean Fielding's Case (Howell's State Trials, vol. xiv. p. 1327) • '9' 
 
 Beanfort, Duke ol, c. Berty (i P. Wms. 703) .... S04. S84. 614. 615- 617, &18 
 Beaumont, He ([1893] 3 Ch. 490; 62 L. J. Ch. 923 ; 42 W. E. 142) . • W. 03^ 
 
 Beaumont c. Carter (8 L. T. 685 ; 32 Beav. 586) ... ' ^'s 
 
 Beaumont r. Eeeve (15 L. J. Q. B. 141 ; 10 Jur. 284 ; 8 Q. B. 483) • S7» 
 
 Beaumont's Settled Estates, He (58 L. T. 916) . a 
 
 Becher, JSx parte (i Bro. C. C. 556) . . • • ' ^ '•' 
 
 Beck r. Pierce (23 Q. B. D. 316 ; 58 L. J. Q. B. 516 ; 61 L. T. 48 ;• 38 W. E. 29) 261, 429 
 Beckett V. Tasker (19 Q. B. D. 7 ; 56 L- T. 636 ; 36 W. E. 158) . 154. 382, 394. 43°. 43i 
 Beckford r. Bcckford (Loflt, 490) . . . . • • S4S 
 
 Beckford v. Tcbin (i Ves. 308) ... . • • • 572 
 
 Bedell V. Constable (Vaugh. 177) . ■ • 584. S91. 598, 600, 625 
 
 Beeston )-. Collyer (4 Bing. 309) . . ' • 833' 834 
 
 BelcWer, .Baiparie (Amb. 218) . . • .660 
 
 Bellast Banking Co. ! . Doherty (L. E. 4 Ir. C. L. 124) . . 7^2 
 
 Belknap's Case, Lady (Co. Lltt. 132 6) ... • • ^79 
 
 Bell V. Drummond (Peake, 45) ... . • 864 
 
 Bell V. Kennedy (L. E. i H. L. C. Sc. 307) .... 45^ 
 
 Bell r. Stocker (10 Q. B. D. 129 ; 52 L. J. Q. B. 49 ; 47 L. T. 624 ; 31 W. E. 183) 
 
 260, 261 268, 429 
 BeUairs r. Bellairs, (L. E. 18 Eq. 510 ; 43 L. J. Ch. 669 ; 22 W. K. 942) . . . lo 
 Bellamy, Se, Elder v. Pearson (25 Ch. D. 620 ; 52 L. J. Ch. 174 ; 49 L. T. 708 ; 32 
 
 W.E. 358) . • ... 231 
 
 Bellamy, lie, Pickard v. Holroyd (48 L. T. 212) 
 
 Bellamy and The Metropolitan Board of Works (24 Ch. D. 387 ; 52 L. J. Ch. 870 ; 
 
 L. T. 801 ; 31 "W. E. 900) 
 
 Bellamy r. Sabine (17 L. J. Ch. 105 ; 2 Ph. 425) .... 
 Belper, School Board ol, i: Bailey (9 Q. B. D. 259 ; 51 L. J. M. C. 911) 
 
 Belton, .Er/iartp (i Atk. 251) 
 
 Belton V. Hodges (9 Bing. 369) 
 
 Belton's Trust Estates, Jle (L. E. 12 Eq. 553 ; 25 L. T. 404 ; 19 W. E. 1052) . 193 
 
 Bempde v. Johnstone (3 Ves. 190) . . . 455 
 
 Benand, i?e.(i6 W. E. 538) .... . . • 782 
 
 Bench r. Merrick (i C. & K. 463) . . . "9 
 
 Benoraft v. Eich (i Bro. C. C. 56) . 699 
 
 Bendy, Be, Wallis r. Bendy ([1895], i Ch. 109; 64 L. J. Ch. 182; 70 L. T. 393; 42 
 
 W. E. 233) ... 
 Bendyshe, Jie (3 .Jur. N. .S. 727) 
 
 10 
 
 660 
 
 536 
 521 
 
 737 
 737 
 
 Bennet v. Colley (5 Sim. 181) . 
 Bennet v. Davis (2 P. Wms. 316) 
 Bennet v. Whitehead (2 P. Wms. 644) 
 
 ISS'' 
 
 • 694 
 
 • 344 
 806 
 
 Bennett i-. Alcott (2 T. E. 168) . .... .561 
 
 Bennett r. Bennett (10 Ch. D. 474 ; 40 L. T. 378 ; 27 W. E. 573 . . 545 
 
 Bennett v. Harfort (24 L. T. 86 ; 19 W. E. 428) . . . 730 
 
 Bennett i: Houldsworth (6 Ch. D. 671 ; 46 L. J. Ch. 646 ; 36 L. T. 648) 728' 
 
 Bennett c. Wyndham (29 L. T. 0. S. 138 ; 3 W. E. 410 -, 23 Beav. 521 ; 4 De G. F. & J. > 
 
 259) 648, 68o' 
 
 Benson v. Benson (6 Sim. 126) . . 349^ 
 
 Benton, Be, Smith r. Smith (19 Ch. D. 277 ; 51 L. J. Ch. 185 ; 45 L. T. 786) . 377, 384 
 
 Benyon v. Benyon (i P. & D. 447 ; 45 L.' J. P. D. & A. 93 ; 24 W. R. 950) . . 164" 
 
 Benyon v. Benyon & O'Callaghan (15 P. D. 54 ; 59 L. J. P. 39 ; 62 I.. T. 381') . . 163 
 Berchtoldt v. Hertford (7 Beav. 172) .... . . 373, 
 
 Berens' Settlement Trusts, Be, Berens v. Benyon (59 L. T. 62) . 134 
 
 Bernard v. (cited 7 C. & P. 52) . 749 
 
 Berney v. Sewell (i J . & W. 648) . . 693 
 
 Bernstein v. Bernstein (No. 2) ([1893], P. 292 ; 63 L. J. P. 3 ; 69 L. T. i;i3) . . 447 
 
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 XXI 
 
 PAGE 
 
 749 
 
 114 
 171 
 680 
 
 i6S 
 
 >■■ 877) 
 
 447 
 
 16 ■»'. n. 
 
 BeroUes r. Eamsay (Holt, N. P. 77) 
 
 Berry v. Da Costa (L. K. i C. P. 243 ; 35 L. J. C. P. 191 ; 14 W. K. 279 ; 12 Jur. X, S, 
 
 588) . . 
 
 Berthon r. Cartwright (2 Esp. 480) 
 
 Bertie v. Earl of Abingdon (3 Mer. 560) 
 
 Besant, He (11 Cli. D. 508 ; 48 L. J. Ch. 497 ; 40 L. T. 469 ; 27 W. E. 741) 
 
 445, 504, 509, 524, 526 
 Besant v. Wood (,12 Cli. D. 605 ; 48 L. J. Ch. 497 ; 40 L. T. 445) . 281, 291, 440, 441, 443 
 Bessela i'. Stern (,2 C. P. D. 265 ; 46 L. J. C. P. 467 ; 37 L. T. 88 ; 25 W. R. 56;) . 115 
 
 Bestall V. Bunbm-y (13 Ir. Ch. Eep. 318, 549) . 366 
 
 Bethell, Me, Bethell r. Hillyard (38 Oi. D. 220 ; 57 L. J. Ch. 487 ; 58 L. T. 674 ; 36 W. E. 
 
 SOS) 4. 87, 105 
 
 Bethiine t". Bethime (63 L. T. 259) 
 
 Betts r. De Vitre (,L. E. 3 Ch. App. 441 ; 37 L. .1. Ch. 325 ; 18 L. T. 
 
 259) 
 
 Betts V. Gibbins C4 S. & M. 64 ; 2 A. & E. 57) 
 
 Bevan v. McMahon (28 L. J. P. M. & A. 129 ; 5 Jur. N. S. 686) . 
 
 Biaggi, He OV. X. 1882, p. 65) 
 
 Bicknell v. Bicknoll (8 L. T. 377 ; 11 W. E. 657; 32 Beav. 381) . 
 
 Biddle r. Douse (6 B. & C. 255) 
 
 Biddies v. Jacteon (7 W. E. 248 ; 26 Beav. 282 ; 3 De G. & J. 544) 
 Biffin c. Bignell (31 L. J. Ex. 189 ; 6 L. T. 248 ; 10 \V. E. 322 ; 7 H. & 
 
 Biggs I'. Terry (i Myl. & Cr. 675) .... . . 
 
 Bikker c. Bikker & Whitewood (67 L. T. 721) 
 
 Bilke V. Smith, lie Eoper (45 Ch. T>. 632 ; 63 L. T. 448 ; 39 W. E. 93) 
 
 Billington r. Cyples (52 L. T. 854) 
 
 Bird r. Barstow ([1892], i Q. B. 94 ; 61 L. J. Q. B. i ; 65 L. T. 656 ; 40 ^^■. K. 71 ) 
 
 Bird i\ Holbrook (4 Bing. 644) . .... 
 
 Bird i: Peagmm (22 L. J. C. P. 166 ; 17 Jur. 577 ; 13 C. B. 639) 
 
 Bird's Trusts, Jie (3 Ch. D. 214) . 
 
 Birkenhead and Cheshire Junction Eailway Co. i. Pilcher (20 L. J. Ex. 97 ; 15 Jur. 
 132; 5 Exch. 114) .... . . 
 
 Birkett r. Hlbbert (3 Myl. & K. 227) .... 
 
 Birmingham r. Kirwan (2 Sch. & Lef , 450) . 
 
 Birtr. Barlow (I Doug. 171) 
 
 Birtwbistle v. VardlU (7 CI. & F. 895 ; 4 Jur. 1076 ; 9 Bli. 32) 
 
 Bishop, Ex parte, He Tonnies (L. E. 8 Ch. App. 718) . 
 
 Blackbaru v. Edgeley (i P. Wms. 600) . 
 
 Blackie r. Clark (15 Beav. 607) 
 
 Blackmore v. Brider (2 PhUl. 359) . 
 
 Blackwell v. Pennant (16 Jur. 420 ; 9 Ha. 551) 
 
 Blades v. Free (9 B. & C. 0:67 ; 4 M. & E. 282) 
 
 Blake, Me, Blake v. Power (60 L. T. 663 ; 37 TV. E. 
 
 Blake, Me, Jones v. Blake (29 Ch. D. 913 ; 54 L, 
 886) 
 
 Blake v. Concannon (i Ir. C. L. 323) . . . • 
 
 Blake v. Lanyon (6 T. E. 221) 
 
 Blake v. Leigh (Amb. 306) ... ... 
 
 Blake v. Midland Eailway Co. (21 L. J. Q. B. 233 ; 18 Q. B. 93) 
 
 Blake v. tVallscourt (7 L. T. O. S. S4S) 
 
 Blanchard v. Ilsley (6 Lathrop, 487 (Mass.)) . 
 
 Bland v. Dawes (17 Ch. D. 794 ; 50 L. J. Ch. 252 ; 43 L. T. 751 ; 29 W 
 
 Blandlord v. Blandford ([1892], P. 148 ; 61 L. J. P. 97 ; 67 L. T. 392) 
 
 Blandy i\ Widmore (i P. Wms. 324 ; 2 Vern. 709) 
 
 Blaymire v. Haley (6 M. & W. 55) . . • • 
 
 Bligh 1'. Tredgett (5 De G. & S. 74 ; 21 L. J. Ch. 204) 
 
 Blockley, Me, Blockley r. Blookley (29 Ch. D. 250 ; 54 T. 
 
 441) 
 J. Ch. 880 ; 
 
 S3 L- T. 
 
 302 
 
 869 
 
 517 
 199 
 814 
 725 
 794 
 312 
 
 506, 798 
 
 171 
 
 370 
 
 • 579 
 
 288, 430 
 801 
 198 
 152 
 
 743 
 
 795 
 
 22s 
 
 82 
 
 475. 484. 568 
 . 162 
 
 ■ 535. 537 
 
 792 
 
 ■ 79 
 
 825 
 
 • 303. 891 
 . 2q6 
 33 ^y- E. 
 
 665, 807 
 
 • 739 
 . 862 
 
 496, 590 
 171, 364 
 
 • 504 
 
 . E. 416 
 
 , J. Ch. V22 ; 33 W. E. 777) 
 
 633 
 347 
 164 
 238 
 562 
 814 
 
 Blood )•. Branfill (7 De G. M. & G. 711) . 
 Blount r. Bestland (S Ves. 515) 
 Blower i-. Morrett (2 Ves. Sen. 400) 
 
 543i 544 
 
 • 776 
 
 198, 200 
 
 295 
 
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xxii TABLE OF OASES. 
 
 PAGE 
 
 Bluok V. Mather (W. N. 1886, 120) • ■ 843 
 
 Blue r. Marshall (3 P. Wms. 381) . • . . 688 
 
 Boast V. Firth (L. B. 4 C. P. i ; 38 L. J. C. P. i : 19 L. T. 264 ; 17 ^V. ii. 29) . . 849 
 Bold V. Hutchinson (24 L. J. Ch. 285 ; 25 L. T. O. S: 28 ; i Jur. N. S. 365 ; 5 De G. M. 
 
 & G. ss8) 150. 151 
 
 Bolingbroke, Lord, r. Swindon New Town Local Board (L. E. 9 C. P. 575 ; 43 L. J. C. P. 
 
 575 i 30 L. T. 723 ; 23 W. E. 47) • • ■ 888 
 
 BoUand, Ex parte, Me Clint (L. E. 17 Eq. 115 ; 43 L. J. Bk. 16 ; 29 L. T.603 ; 22 W.E. 
 
 225) .... • ■ 141. 162 
 
 Bolton, He, Brown t;. Bolton (31 Ch. D. 542 ; 55 L. .7. Ch. 398 ; 54 L. T. 396 ; 34 W. K. 
 
 325) ... . . • S70, 571 
 
 Bolton V. Bolton ([1891], 3 Ch. 270 ; 60 L. J. Ch. 689; 40 "W. E. 145) . . . -794 
 Bolton V. Curre ([1895], i Ch. 544 ; 64 L. J. Ch. 164 ; 71 L. T. 752 ; 43 W. E. 521) 
 
 N 272, 387 
 
 Bolton, Duke of, r. Williams (2 Ves. 138) . . 285 
 
 Bonaparte r. Bonaparte ([1892], P. 402 ; 67 L. T. 531) 
 Bond, Ux parte (8 L. T. 252 ; 11 Jur. 114) 
 
 Bond V. Evans (21 Q. B. D. 249 ; 57 L. J. M. C. 105 ; 59 L.' T. 411 ; 36 V,'. E. 767) 
 
 . 43, 83, 468, 473 
 • 589. 652 
 
 . 200 
 . 122, 153 
 • 213 
 287, 288 
 E. 613) . . 642 
 . 825 
 882, 885 
 
 Bond V. Simmons (3 Atk. 20) . . .... 
 
 Bond V. Walford (32 Ch. D. 238 ; 55 L. J. Ch. 667 ; 54 L. T. 672) 
 
 Bonner v. Bonner (17 Beav. 76) 
 
 Bonner r. Lyon (38 AY. E. 541) ... . . 
 
 Booth, Me, Booth v. Booth ([1894], 2 Ch. 282 ; 63 L. J. Ch. 560 ; 42 W. : 
 
 Booth r. Dean (i Myl. & K. 560) , 
 
 Booth r. Mister (7 C. & P. 66) 
 Bootle 1'. Scarisbrick (i H. L. Cas. 67) . . . 142 
 
 Borton v. Borton "(16 Sim. 552) . . . , . 772 
 
 Bosley v. Davies (i Q. B. D. 84 ; 45 L. J. M. C. 27 ; 33 L. T. 528 : 24 W. E. 140) . 889 
 
 •Bostock r. Smith (34 Beav. 57) . . . 230 
 
 Boston Deep Sea Fishing and Ice Co. v. Ausell (39 Ch. D. 329 ; 59 L. T. 345) 833 
 
 Bosvil !'. Brander (i P. Wms. 459) 207 
 
 Bosvile r. The Attorney-General (12 P. D. 177 ; 56 L. J. P. 97 ; 57 L. T. 88 ; 36 W. E. 
 
 79) • • • • 477.484 
 
 Bosville V. Middleton (29 L. T. O. S. 742) . . . 538 
 
 Boulton r. Prentice (Selw. N. P. 233) . . ... ... 312 
 
 Bourgoise, Me (41 Ch. D. 310 ; 60 L. T. 553 ; 37 W. E. 563) . . . 605, 608, 783 
 
 Bourne r. Crofter (2 Moll. 318) . . . 201 
 
 Bowen, Me, James r. James ([1892], 2 Ch. 291 ; 61 L. J. Ch. 432) . . . 357, 370 
 
 Bowen v. Hall (6 Q. B. D. 333) . 862 
 
 Bower r. Smith (L. P.. 11 Eq. 279 ; 40 L. J. Ch. 194 ; 24 L. T. 118 ; 19 W. E. 399) . 137 
 Bowers r. Harding ([1891], ± Q. B. 560 ; 60 L. J. Q. B. 474 ; 64 L. T. 201 ; 39 W. E. 
 
 558) . . 4C0 
 
 Bowles' Case (ii Eep. 796) . . . ... . 683 
 
 Bown, Me, O'HaUoran v. King- (27 Ch. D. 411 ; 53 L. J. Ch. 881 ; 50 L. T. 796) 
 
 376, 378, 382 
 Boxall r. Boxall (27 Ch. D. 220 ; 53 L. J. Ch. 838 ; 32 W. E. 896) . . . .211 
 Boyd V. Boyd (L. E. 4 Eq. 305 ; 16 L. T. 660; 15 W. E. 1071) . . . 543, 544 
 
 Boyd V. Boyd (39 L. J. P. M. & A. 79 ; i L. T. 244 ; 8 W. E. 160 ; i Sw. & Tr. 562 
 
 513. 543 
 
 Boyes v. Bedale (i H. & M. 798) .... 485 
 
 Boynton v. Boynton (30 L. J. P. M. & A. 156 ; 4 L. T. 258 ; 9 W. E. 620 ; 2 Sw. & Tr. 
 
 275) .... .... . . • ■ 513 
 
 Boyntun v. Boyntun (i Cox, Eq. Cas. 106) 407 
 
 Brace v. Calder and others ([1895], a Q. B. 253; 64 L. J. Q. B. 582; 72 L. T. 829; 59 
 
 J. P. 693) ... . . . 835 
 
 Bracegirdle v. Heald (i B. & Aid. 722) 833, 862 
 
 Bradford, Earl of, i: Earl of Eomney (6 L. T. 208 ; 10 W. E. 414 ; 8 Jur. N. S. 403 ; 
 
 30 Beav. 471) 151 
 
 Bradshaw v. Beard (31 L. J. C. P. 273 ; 6 L. T. 458 ; 8 Jur. N. S. 1228 ; 12 C. B, N. s. 
 
 344) 276 
 
 Bradshaw v. Bradshaw (i Euss. 528) ... . 607, 623, 651 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. xxiii 
 
 PAGE 
 
 Bradshaw v. Hayward (Carr. & M. 591) . . .... 863 
 
 Branch v. Ewington (2 Doug. 518) . 756 
 
 Brand )■. Sliaws (16 Ct. of Sess. Cas. 315) .... 572, 574, 598 
 
 Brandon v. Brandon (5 Madd. 473) . . 694 
 
 Braunstein v. Lewis (65 L. T. 449) 2B7, 288, 290, 361, 382, 391 
 
 Braysliaw r. Eaton (5 Bing-. N. C. 231) , . 750, 751 
 
 Breadalbane Peerage Case, The (4 Maoq. H. L. Cas. 711) 35 
 
 Brealy t;. Eeed (2 Curt. 833) 91 
 
 Breed r. Judd (i Gray, 458 ; (Amer.)) 748 
 
 Breed's WiU, lie (i Ch. D. 226 ; 45 L. J. Ch. 191 ; 24 W. K. 200) . . 640, 654, 657 
 
 Breedon v. Breedon (i Buss. & Myl. 413) . 665 
 
 Brenchley r. Lyon (2 Bob. 441) . . . 371 
 
 Breton, Be, Breton v. Woolven (17 Ch. D. 416) . . 293 
 
 Brett J'. Forcer (3 Atk. 405) ... 213 
 
 Brewer, Ex parte, lie Wilts & Somerset Eallway Co. (2 Dr. & Sm. 552) . . . 782 
 Briant, lie, Poulter i>. Shackel (37 Ch. D. 471 ; 57 L. J. Ch. 953 ; 59 L. T. 215 ; 36 
 
 W. K. 825) .... . . 208 
 
 Bricker v. Whatley (i Vera. 233) .... . . . 187 
 
 Bridge v. Brown (2 Y. & C. C. C. 181) . . .... 681 
 
 Bridges v. Hales (Mos. 108) . . . . . . . 598 
 
 Briers v. Goddard (Hobb. 250) ... ... ... 602 
 
 Briggs V. Briggs (5 P. D. 163 ; 49 L. J. P. D. & A. 38 ; 28 W. K. 702) . . 83, 472 
 
 Briggs V. Chamberlain (11 Ha. 69) 209 
 
 Briggs V. Morgan (3 PhiU. 324) 63, 64, 65 
 
 Brinkley v. Att.-Gen. (15 P. B. 76 ; 59 L. J. P. 51 ; 62 L. T. 911) . . .5, 87, 489 
 
 Brlstow V. Eastman (i Bsp. 172 ; Peake, N. P. 291) ... . 757 
 
 Brlstowe v. Needham (2 Ph. 190) . . • ... . . 694 
 
 Britain v. Eosslter (48 L. J. Q. B. 362 ; 40 L. T. 240 ; 27 W. K. 482) . . 834 
 
 . 2X2 
 
 656 
 J. Ex. 99 ; 20 W. E. 
 . . . . 871 
 
 738) . . .681 
 
 Britten v. Britten (9 BeaT. 143) 
 
 Brittlebank, He, Coates v. Brittlebank (20 W. E. 99) 
 
 Britton v. Great Western Cotton Co. (L. E. 7 Ex. 130 ; 41 L. 
 
 525) • 
 
 Broadwater Estate, lie (54 L. J. Ch. 1104 ; 53 L. T. 745 ; 33 L. T, 
 
 Broadwood's Settled Estates, He (L. E. 7 Ch. App. 323 ; 41 L. .J. Ch. 349 j 20 L. T. 650 ; 
 
 20 W. E. 458) .... 193 
 
 Brocklebank, Exparte, Re Brocklebank (6 Ch.D. 358; 46 L. J. Bk. 113; 37 L. T. 282 ; 
 
 25 W. E. 859) . . 404, 737, 809 
 
 Brodie v. Barry (2 Ves. & B. 36) . 404 
 
 Brodie v. Brodie (30 L. J. P. M. & A. 185 ; 4 L. T. 307 ; 9 W. E. 815 ; 2 Sw. & Tr. 259) 
 
 456 470, 471, 472 
 
 Bromage v. Prosser (4 B. & C. 247) 854 
 
 Brook V. Brook (9 H. L. Cas. 193 ; 4 L. T. 93 ; 9 W. E. 461 ; 7 Jur. N. S. 422) 
 
 79, 106, 294, 460, 462 
 
 Brook V. Dawson (20 L. T. 6n) . . 849 
 
 Brook V. Smith (2 E. & M. 73) . . . . ... 666 
 
 Brooke v. Brooke (31 L. T. O. S. 244) . . ....'. 399 
 
 Brooke v. Brooke (27 L. J. Ch. 401 ; 25 Beav. 342) 348 
 
 Brooke v. Pearson (27 Beav. 181 ; 5 Jir. N. S. 781) ... . 140 
 
 Brooker v. Scott (11 M. & W. 67) 749 
 
 Brookman's Trusts, Re ( L. E. 5 Ch. App. 182 ; 39 L. J. Ch. 138 ; 22 L. T. 891 ; 18 W. E. 
 
 199) 132 
 
 Brooks v. Keith (i Dr. & Sm. 462) 13S 
 
 Brophy v. Bellamy (L. E. 8 Ch. App. 798 ; 43 L. J. Ch. 183 ; 29 L. T. 380) . 650, 654 
 
 Brotherton v. Harris (2 Cas. temp, Lee, 131) . ....... 601 
 
 Broughton v. Broughton (24 L. J. Ch. 190; 24 L. T. O. S. 152; 3 ^V. E. 130; 5 
 
 De G. M. & G. 160; 2 Sm. & G. 422) 701 
 
 Brown, Re, Brown v. Brown (29 Ch. D. 889 ; 54 L. J. Ch. 1134 ; 52 L. T. 853 ; 33 W. E. 
 
 692) 688, 689 
 
 Brown, Re, Penrose v. Manning (63 L. T. 159) 57° 
 
 Brown (Ethel), Re (13 Q. B. D. 614; 51 L. T. 793 ; 33 W. K. 79) . . 497. So8> 800 
 
 Brown v. Ackroyd (5 E. & B 819) ... . . • • • 31S 
 
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xxiv TABLE OF OASES. 
 
 PAGE 
 
 Brown v. Bamford (i Ph. 620) . ... ■ 37^ 
 
 Brown v. Barrow (48 L. T. 357) . . -79° 
 
 Brown v. Bolton, Jie Bolton 131 Ch. D. 542 ; 55 L. J. Ch. 398 ; 54 U T. 396 ; 34 W. B. 
 
 32s) .... 570,571 
 
 Brown v. Brown (i Hag. Eccl. Kep. 523) . "4 
 
 Brown v. Brown (L. E. 7 Bq. 185 ; 38 L. J. Ch. 153 ; 19 L. T. 594 ; 17 W. K. 98) 445 
 
 Brown t'. Carter (5 Ves. 862) • ■ '3i 
 
 Brown v. Casamajor (4 Ves. 498) "42 
 
 Brown v. Chapman (6 C. B. 365 ; 3 Burr. 1418 ; i W. Bl. 427) . . ■ ■ S99 
 
 Brown v. CoUins (25 Ch. D. 56 ; 53 L. .T. Ch. 368 ; 49 L. T. 239) 502- 603, 782, 783, 784 
 
 Brown v. Foot (61 L. J. M. C. no; 65 L. T. 261) . .... 889 
 
 Brown r. Harper (68 L. T. 488) .... . • 755- 768 
 
 Brown r. Lynch (2 Bradi Surrog. Eep. (X. T.) 214) . . . • 487 
 
 Brown r. Peck (i Ed. 140) ... ... . • " 
 
 Brown v. Smith (10 Ch. D. 377; 40 L. T. 374; 27 W. R. 588) . 646, 651, 652, 657 
 
 Brown v. Temperley (3 Kuss. 263) .... • • • °4° 
 
 Brown v. Vansittart, He Brown (67 L. T. 592 ; 41 W. E. 32) . ■ 295 
 
 Brown's Will, Be (27 Ch. D. 179 ; 53 L. J. Ch. 920 ; 32 W. E. 894) ... 669 
 
 Browne, Be (z Ir. Ch. Eep. 151) . . 5^4 
 
 Browne's Will, Me (L. E. 7 Eq. 231 ; 38 L. J. Ch. 316) .... . 138 
 
 Browing i\ Keane (2 Phill. Eocl. Gas. 69) . 75 
 
 Bruce v. Marquis of Allesbury ([1892] App. Cas. 356 ; 67 L. T. 490) . 668, 670, 675 
 
 Bruce v. Burke (2 Add. 471) ... . . • • 83 
 
 Bruce v. Warwick (6 Taunt. 118) . . 722, 733 
 
 Bruin v. Knott (i Ph. 57?) 652 
 
 Brunt, Re (W. N. 1883, p. 220) . . .... . 714 
 
 Bryan, Be, Godlrey v. Bryan (14 Ch. D. 516 ; 49 L. J. Ch. 504 ; z8 W. E. 761) . 187 
 
 Bryant, Be, Bryant v. Hickley ([1894] i Ch. 324 ; 63 L. J. Ch. 197 ; 70 L. T. 301 ; 42 
 
 W. E. 183) . . 647, 650 
 
 Bryant v. Bull (10 Ch. D. 153 ; 48 L. J. Ch. 325 ; 39 L. T. 470 ; 27 W. E. 246) . 432 
 
 Bryant v. Eichardson (L. B. 3 Ex. 93 n; 14 L. T. 24 ; 14 W. B. 401 ; 12 Jur. N. S. 300) 
 
 747, 749 
 Brydges, Hx parte Lady Anne (cited 2 Fonh. Eq. 247 n) . . ... 620 
 
 Brydon v. Stewart (2 Maoq. H. L. Cas. 30) . . .... 869, 873 
 
 Buchanan v. Hardy (18 Q. B. D. 486 ; 56 L. J. Q. B. 42 ; 35 W. E. 453) . .517 
 
 Buckingham i'. Surrey and Hants Canal Co. (46 L. T. 885) ... . 831 
 
 Buckinghamshire, Earl ol, v. Drury (2 Ed. 60) . . 124, 238, 738, 740 
 
 Buckle V. Mitchell (18 Ves. 100) 130 
 
 Buckley v. Puckeridge (i Dick. 395) ...... . 814 
 
 Buckley's Trusts, Be (22 Ch. D. 583 ; 52 L. J. Ch. 439 ; 48 L. T. 109 ; 31 W. E. 376) 
 
 639, 644 
 Bnckmaster v. BuckmaBter (35 Ch. D. 21 ; 55 L. J. Ch. 826 ; 59 L. T. 279 ; 35 W. E. 
 
 25 ; see Seaton v. Seaton) 
 Buckton V. Hay, Be Eidley (11 Ch. D. 645 ; 48 L. J. Ch. 563 ; 27 W. E. 527) . 388, 389 
 
 Buckworth v. Buckworth (i Cox, Eq. Cas. 80) 648 
 
 Budd V. Lucas ( [1891] i Q. B. 408 ; 60 L. J. M. C. 95 ; 64 L. T. 292 ; 39 W. E. 350) . 888 
 
 Budyerd, Be (2 Gift. 394) ... . . . . 682 
 
 Bullock V. Bullock (i J. & W. 603) . . . 728 
 
 Bullmore v. Wynter (22 Ch. D. 619 ; 52 L. J. Ch. 456 ; 48 L. T. 309 ; 31 W. E. 396 . 447 
 
 Bulmer v. Bulmer (25 Ch. D. 409 ; 53 L. J. Ch. 402 ; 32 W. E. 380) . . , , 564 
 
 Buhner v. Hunter (L. E. 8 Eq. 46 ; 38 L. J. Ch. 543) . . 154 
 
 Bunting v. Lepingwell (4 Eep. 29 a, Moore, 169) 16 
 
 Birchmore, Be (L. E. 3 P. & D. 139 ; 43 L. J. P. M. & A. i ; 29 L. T. 377 ; 20 W. R. 
 
 70) 
 
 Burford, Corporation of v. Lenthall (2 Atk. 553) 
 
 Burgess, Be, Burgess i'. Bottomley (25 Ch. D. 243 
 
 Burgess r. Mawbey (T. & E. 167) . 
 
 Burgess v. Eobinson (3 Mer. 7) . . , 
 
 Burghart v. Angerstein (6 C. cSc P. 690 ; i Mo. & Eoh. 458) . 750, 819, 820 
 
 Barghart v. Hall (4 M. & W. 727) . . . . . . . 7^1 
 
 Burlinson's Case (3 De G. M. & G. 18) . . . 323 
 
 Digitized by Microsoft® 
 
 602 
 . 612 
 
 so L. T. 168) . . 810, 813 
 
 6«o 
 
 693 
 
TABLE OF OASES. xxv 
 
 PAGE 
 
 Burnaby t-. Baillie (42 Ch. D. 282 ; 58 L. J. Ch. 842 j 61 L. T. 634; 38 W. E. 125) . 567 
 Buraaby r. Equitable Reversionary Interest Society (28 Ch. D. 416 ; 54 L. J. Ch. 466 ; 
 
 52 L. T. 350 ; 33 W. R. 639) 772, 773 
 
 Burnard 1: Haggis (14 C. B. N. S. 45) . . . . 757 
 
 Burnbain v. Bennett (2 Coll. 254) 200 
 
 Burnley Equitable Co-operative and Pi-udential Society v. Casson ([18913 i Q. B. 75 ; 
 
 60 L. J. M. C. 59 ; 63 L. T. 652 ; 39 W. R. 124) -844 
 
 Burnly v. Jennings (6 Esp. 8) . . . . . .... 845 
 
 Bums r. Poison (L. R. C. P. 563 ; 42 L. J. C. P. 302; 29 L. T. 329-; 22 W. R. 20) . 888 
 
 Burrett v. Booty (;8 Taunt. 343) 312 
 
 Bnrsill r. Tanner (13 Q. B. D. 691 ; 50 L. T. 589) 287,337,391,429,431 
 
 Burt !■. Bnrt (29 L. J. P. M. & A. 133) .... 83 
 
 Burton v. Earl of.Daruley (L. R. 8 Eq. 576 n) . . ... 799 
 
 Burton r. Palmer (2 Bulst. 192) .... . ... 842 
 
 Burton's Will, Jie, Banks i: Heaven ([1892] 2 Ch. 38 ; 6rL. J. Ch. 702 ; 67 L. T. 221) 
 
 641, 64s 
 
 Bury V. Newport (23 Beav. 30) . . 694 
 
 Butcher v. Butcher (14 Beav. 222 ) . . 134 
 
 Butler V. Butler (14 Q. B. D. 835 ; i5 Q. B. D. 374 ; 55 L. J. Q. B. 55 ; 54 L. T. 591 j 
 
 34 W. R. 132) . . ... . . 168, 294, 424, 425, 429 
 
 Butler c. Cumpston (L. R. 7 Eq. 16 ; 42 L. J. Ch. 824 ; 21 W. E. 942) . . . 265, 348 
 
 Butler r. Freeman (Ambl. 301') 88, 600, 602, 639, 781, 789 
 
 Butler r. GastriU (Gilb. Ch. 156) . . 79 
 
 Butler's Case (i Ves. Sen. 95) ... . .... . 651 
 
 Butler's Trusts, Se, Hughes v. Anderson (38 Ch. D. 286 ; 57 L. J. Ch. 643 ; 59 L. T. 
 
 386; 36 W. R. 817) i88 
 
 Butterfield c. Forrester (3 B. & Aid. 304) .... .... 801 
 
 Butterfleld v. Heath (22 L. J. Ch. 270 ; 15 Beav. 408) . . ... 159 
 
 Butterworth, Re, Ex parte Russell (19 Ch. D. 588 ; 51 L. J. Ch. 521 ; 46 L. T. 113 ; 30 
 
 W. R. 584) . . 161 
 
 Button v. Thompson (38 L. J. C. P. 225 ; i L. E. 4 C. P. 330) . . -833 
 
 Byam v. Byam (24 L. J. Oh. 209 ; 3 W. E. 95) . . . . . 142 
 
 Byram v. Tnll, He Dixon (42 Ch. D. 306 ; 61 L. T. 718 ; 38 W. K. 91) . 188 
 
 Byrchell i\ Bradford (6 Madd. 13) . 692 
 
 Byrne, Jie (23 L. R. Ir. 260) . 638 
 
 Byrne v. Blackburn (26 Beav. 41) . . 643 
 
 Byrnes, Re (7 Ir. C. L. 199 ; 21 W. R. 794) ... 599 
 
 -C.'s Settlements, Jie (56 L. J. Ch. 556) . . 386 
 
 Caddick, lie (7 W. R. 334) . 610 
 
 Cadman r. Cadman (33 Ch. D. 397 ; 55 L. J. Ch. 833 ; c,^ L. T. 569 ; 35 W. R. i) 
 
 637. 651. 767 
 
 •Caffrey v. Darby (6 Ves. 488) .... 688 
 
 ■Cage r. Acton (i Ld. Raym. 522) ........ . . 242 
 
 Cahill V. Cahill (8 App. Cas. 420 ; '49 L. T. 605 ; 35 W. E. 861) . 134, 272, 289, 291, 385 
 Caine, Jie (10 Q. B. D. 284 ; 52 L. J. Q. B. 354 ; 48 L. T. 357 j 31 W. R. 428) . . 191 
 Caines ». Smith (15 L. J. Ex. 106 ; 15 M. & W. 189 ; 3 D. & L. 462) .... 114 
 
 Caldwell v. Fellowes (L. E. 9 Eq. 410) 188 
 
 Callaghan, Be, EUiott v. Lambert (28 Ch. D. 186 ; 54 L. J. Ch. 292 ; 52 L. T. 7 ; 33 
 
 W. E. 157) S°6- 797. 798 
 
 Callo V. Brouncker (4 C. & P. 518) 837, 838, 
 
 Callow V. Howie (i De G. & Sm. 531) .... ... 285 
 
 Calmady v. Calmady (11 Vin. Abr. pi. 21) . . . . . . 406 
 
 Calvert r. Godfrey (6 Beav. 97) . . ... . . 664, 729 
 
 Cameron r. Baker (i C. & P. 268) ... . . .577 
 
 Cameron f. Wells, Be (37 Ch. D. 32 ; 57 L. T. 645 ; 36 W. E. 5) . 148, 160 
 
 Campbell, Be (6 Ch. D. 686 ; 46 L. J. Ch. 142 ; 25 W. E. 268) . . 137 
 
 Campbell v. Campbell (2 llyl. & Cr. 25) • .812 
 
 Campbell v. Campbell (cited Chamb. Inf. 30) 5°6i 798 
 
 Campbell v. Campbell (L. R. i Sc. App. 182; 5 Court Sess. Cas. (3rd Series) 115) . . 36 
 Campbell v. IngUby (27 L. T. 0. S. 51 ; 4 W. E. 433 ; 2 Jur. N. S. 440 ; 21 Beav. 567) 147 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. 
 
 Campbell v. Mackay (2 Myl. & Cr. 31) . 
 
 Campbell v. Walker (5 Tes. 678) . 
 
 Campion v. Cotton (17 Ves. 49) 
 
 Cann v. Cann (51 L. T. 770 ; 33 W. R. 302) 
 
 Cannel v. Buckle (2 P. Wms. 243) . 
 
 Cannon v. Smalley (10 P. D. 96) 
 
 Capel V. Powell (34 L. J. C. P. 168 ; ii L. 
 
 743) • .... 
 
 Capes V. Button (2 Kuss. 357) 
 
 .Capper's Case (L. E. 3 Ch. App. 458 ; 16 W. K. 1002) 
 Capps V. Capps (L. E. 4 Ch. App. i) 
 Carburton, lie (16 W. E. 84) . 
 CardrosB'a Settlement, Jfe (7 Cli. D. 728 ; 47 L, 
 
 421 ; 
 
 PAGE 
 
 600, 617, 634, 797- 
 
 • 661 
 
 155. 
 
 . . 688 
 • 243. 772 
 75.77 
 Jur. N. S. 1255 ; 17 C. B. N. S. 
 
 258, 269, 270, 273, 312, 333, 
 
 . 720 
 
 . 734. 743 
 
 ■ 819 
 
 191 
 
 J. Ch. 327 ; 38 L. T. 778 ; 26 W. E. 389) 
 
 373. 732- 
 454; 52 L. J. Q. B. 442 ; 48 L. T. 447; 
 
 S79. 589- 
 
 649 ; 38 L. T. 779 ; 26 W. E. 716) 
 
 567) 
 
 Carey's Case (Eose), Eeg.V. Nash (10 Q. B. D. 
 
 31 W. E. 420) 
 Carglll V. Bower (10 Ch. D. 502 ; 47 L. J. Ch, 
 Carmichael v. Hiighes (20 L. J. Ch. 396) 
 Carmlchael v. Wilson (3 Moll. 79) . 
 Carnegie's Case (cited 11 Ch. D. 508, 512; 48 L. J. Ch. 497 
 
 741) ... . . . 
 
 Carr v. Clarke (2 Ch. Eep. 260) 
 
 Carr v. Eastabrooke (4 Ves. 146) 
 
 Carr v. Living (28 Beav. 644 ; 33 Beav. 474) 
 
 Carr jj. Taylor (10 Ves. 574) 
 
 Carrick v. Ford (L. E. 4 Ch. 247 ; 38 L. J. Ch. 671 ; 20 L. T. 
 Carrol v. Bird (3 Esp. 201) .... 
 
 Carroll v. Blencow (4 Esp. 27) 
 
 Carswell v. Carswell (8 Court Sess. (4th Series) Settle, 901) 
 
 Cartledge v. Cartledge (31 L. J. P. M. & A. 85 ; 2 Sw. & Tr. 
 
 Caruthers v. Caruthei-s (4 Bro. C. C. 500) 
 
 Cary v. Bertie (2 Vern. 342 ; 2 1'. Wma. 119) 
 
 Gary v. Cary (2 Sch. & Let 173) . ... 
 
 Castello's Case (L. E. 8 Eq. 504) 
 
 Castle V. Castle (i De G. & J. 352) .... 
 
 Castleden v. Castleden (9 H. L. Cas. 185) 
 
 Catherwood v. Caslon (13 L. J. Ex. 433 ; 8 Jur. 1076 ; 13 M. & W. 261) 
 
 Caton V. Caton (L. E. 2 H. L. 127 ; 36 L. J. Ch. 886 ; 14 L. T. 34 ; 14 W. E. 267) 
 
 Caton V. Eideout (i Mac. & G. 599) 
 
 Catterall v. Catterall (i Eoberts. 580) 
 
 Catterall v. Kenyon (3 Q. B. N. S. 310) . 
 
 Caudell v. Shaw (4 T. E. 361) 
 
 Cave V. Cave (15 Beav. 227) . 
 
 Cavendish v. Mei-cer (5 Ves. 195 71) . 
 
 Cawthom v. Cawdery (32 L. J. C. P. 152 
 
 Cecil V. Langdon (54 L. T. 418) 
 
 Chalmers v. Wingfleld, Re Marett (36 Cli. D. 400 -, 57 L. T. 896 ; 36 W. E. 344) 
 
 Chamberlain v. Napier (15 Ch. D. 614 ; 49 L. J. Ch. 628 ; 29 M'. E. 194) 
 
 Chamberlain ?\ Williamson (2 M. & S. 408) . 
 
 Ch^imbers v. Goldwin (11 Ves. i) . . . 
 
 Champneye, Ex parte (2 Dick. 350) 
 
 Chandler v. Broughton (i C. & M. 29) 
 
 Chaplin, Ke (L. E. i P. & D. 328 ; 36 L. J. P. M. & A. 90) 
 
 Chapman v. Biggs (n Q. B. D. 27 ; 48 L, T. 704) 
 
 Chapman v. Bradley (4 De G. & S. 71 ; 33 L. J. Ch. 139 ; 9 
 
 lo'Jur. N. S. s) 
 
 Chapman v. Gibson (3 Bro. C. C. 228) . 
 
 Chapman v. Wood, Me Smith (51 L. T. 501) . 
 
 Chappell V. Bray (30 L. J. Ex. 24 ; 3 L. T. 278 ; 9 W. E. 17) 
 
 13 C. B 
 
 N. S. 406) 
 
 883 
 652 
 650 
 40 L. T. 469 ; 27 W. E. 
 
 ■ 503. 
 . S6i. 
 
 214 
 
 642, 653 
 
 125, 209. 
 
 289 ; 17 W. E. 478) 213 
 
 . . . 851 
 
 • 279 
 
 • 42 
 493. S13 
 
 ■ 772 
 . 728 
 
 661, 705, 728 
 
 742, 743 
 
 . 642 
 
 . 66 
 
 • IS 
 
 • 144 
 296. 399 
 
 6, 4S. 463 
 . 269 
 ., 279 
 
 • 794 
 . 641 
 
 834 
 
 • 675 
 456 
 143 
 117 
 
 639. 653 
 
 604, 626 
 
 884 
 
 L. T. 
 
 495 
 
 . 284, 382, 383 
 12 W. E. 140 ; 
 
 146 
 
 • 548 
 
 ■ 376 
 
 880 
 
 Chappell V. Cooper (13 L. J. Ex. 286 ; 13 M. & W. 252) .... 
 Charles v. Taylor, Walker & Co. (3 C. P. D. 492 ; 38 L. T. 773 j 27 W. E. 32) 
 
 276, 748, 830 
 871 
 
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TABLE OP CASES. xxvii 
 
 PAGE 
 
 Charleston i: London Tramways Co. (36 W. K, 367) 886 
 
 Charleswovth r. Holt (L. B. 9 E.x. 38 ; 43 L. J. Ex. 25 ; 29 L. T. 647 ; 22 W. E. 94) 
 
 443.444 
 Charlton r. Coombes (11 W. E. 1038) , . 10, 269 
 
 Charnley i: Wiustanley (5 East, 266) . . ... 242 
 
 Charrington, Exparte (I Atk. 206) , . ... 317 
 
 Chatteris c. Young (i J. & W. 106) . . . 606 
 
 Cherry v. Colonial Bank of Australia (38 L. J. P. C. 49 ; 17 W. E. 1031J . . 891 
 
 Cherry r. Heming (ig L. J. Ex. 63 ; 4 Exch. 631; 834 
 
 Chesterfleld, Earl of, r. Janssen (,2 Yes. Sen. 125, 157) 548 
 
 Chichester, Lord, <-. Coventry (h. E. 2 H. L. 71 ; 15 W. E. 849) . 132, 540, S41. 542 
 
 Chilcot i: Bromley (12 Ves. 114) . . 825 
 
 Child r. Affleck (9 B. & C. 403 ; 4 M. & E. 338) . . . .853 
 
 Chilliner v. Chilliner (2 Yes. Sen. 528) .... 141 
 
 Chishohn r. Doulton (22- y. B. D. 360 ; 58 L. J. M. C. 133 ; 60 L. T. 966; 37 W. E. 
 
 749) ... . 889 
 
 Chorlton !-. Kissler (L. E. 4 C. 1'. 397 ; i Hopw. & C. 42) . . 17S 
 
 Chorlton v. Lings (L. E. 4 C. P. 374 ; 38 L. J. C. P. 25 ; 19 L. T. 534 j 17 W. E. 284 ; 
 
 I Hopw. & C. I) . . . . . 175 
 
 Christie v. Cameron (2 Jur. N. S. 635) . 816 
 
 Christie i: Ovlngton (i Ch. D. 279 ; 24 W. E. 204) 326 
 
 Chubb 1;. Stretch (L. E. 9 Eq. 555 ; 39 L. J. Ch. 329 ; 22 L, T. 86 ; 18 W. E. 483) 260, 263 
 Chudley i; Chudley (59 L. T. 617) ... . 450 
 
 Church !■, Cudmore (Lutw. 1187) .... . . 594 
 
 Clare, Earl of, i'. Bedford (13 Yin. Abr. 536) . 740 
 
 Clarges i: Duchess of Albemarle (2 Veru. 245) . 406 
 
 Clarldge v. Evelyn (5 B. & Aid. 81) . . . 714 
 
 Clark V. Chambers (3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 38 L. T. 454 ; 26 W. K. 613) 
 
 801, 803 
 Clark V. Clark (10 P. D. i88 ; 54 L. J. P. 99 ; 51 L. T. 750) . . 439, 440 
 
 Clark V. Leslie (5 Esp. 28) . . . . 749 
 
 Clark V. Thompson (Cro. Jac. 571) .... . 242 
 
 Clark V. Thorp (2 Yes. Sen. 232) .... . . 662 
 
 Clark, Re (21 Ch. D. 817; 51 L. J. Ch. 762 ; 47 L. T. 84; 31 yV. R. 37) . 526, 635 
 
 Clarke v. Burgh (2 Coll. 221) . ... . 185 
 
 Clarke r. Cobley (2 Cox, 173) . 734 
 
 Clarke v. Franklin (4 K. 85 .1. 266) . ... . . 228 
 
 Clarke v. Green (13 L. T. 38 ; 11 Jun, N, S. 851 ; 2 N. & M. 474) . . . 213 
 
 Clarke v. Hogg (19 W. E. 617) 6154 
 
 Clarke v. Parker (19 Yes. 17) .... 9 
 
 Clarke r. Thornton (35 Ch. D. 307 ; 56 L. J. Ch. 302 : 56 L. T. 294 ; 35 W. E. 603) 682 
 
 Clarke v. Wright (6 H. & N. 849 ; 7 Jur. N. S. 1032) 148 
 
 Clarke's Tnists, He (21 Ch. D. 748 ; 51 L. J. Ch. 855 ; 47 L. T. 43 ; 30 W. B. 778) 
 
 377. 378 
 Claydon i: Finch (L. E. 15 Eq. 266 ; 42 L. J. Ch. 416; 28 L. T. loi) . . .383 
 
 Clayton r. Clarke (7 Jul-. N. S. 562 ; 3 De G. F. & J. 682) . .... 814 
 
 Clayton v. Earl of WUton (3 Madd. 302 ; 6 M. & S. 67 h) 148 
 
 Clearer r. Mutual Eeserve Fund Life Association ([1892] i Q. B. 147 ; 61 L. J. Q. B. 
 
 128 ; 66 L. T. 220 ; 40 W. E. 230 ; 56 J. P- 180) . ... 322, 323 
 
 Clements, Jif, Clements v. Pearsall ([1894] i Ch. 665 ; 63 L. J. Ch. 326; 70 L. T. 682 ; 
 
 42 W. E. 374) ... . 641, 646 
 
 Clements v. London & North-Western Eailway Co. ([1894] 2 Q. B. 482 ; 63 L. J. Q. B. 
 
 837 ; 70 L. T. 896 ; 42 W. E. 663) 746, 754, 755. 845 
 
 Clements r. Ward, Se Smith's Estate (35 Ch. D. 589 ; 56 L. J. Ch. 726 ; 56 L. T. 850 ; 
 
 ' 35 W. E. 514) 371 
 
 328 
 • • 86s 
 . 308, 828 
 22 W. K. 
 
 162 
 • 730 
 
 Gierke v. Gierke (6 P. D. 10; 50 L. J. P. D. & A. 69 ; 29 W. E. 823) . 
 
 Cleworth v. Pickford (7 M. & W. 320) 
 
 Clifford V. Laton. (3 C. & P. 15 ; M. & M. loi) 
 
 Clint, Be, Ex parte, BoUand (L. E. 17 Eq. 115 ; 43 L. J. Bk. 16 ; 29 L. T. 603 
 
 225) ... 
 
 Clinton v. Bernard (6 Ir. Eep. Eq. 355 ; Dr. 287) . 
 
 Digitized by Microsoft® 
 
XXVUl 
 
 TABLE OF OASES. 
 
 E. 99) 
 
 366) 
 45 I' 
 
 J. Ch. 660 ; 34 L. T, 
 
 Clive V. Carcw (28 L. J. Ch. 685 ; i J. & H. 197) 
 
 Clogstonn v. Walcott (9 Jur. 649) . 
 
 Cloncurry's Case, Lord (Cr. Dig. 276) 
 
 Clough V. Clough (s Ves. 717) 
 
 Clongh V. Lambert (10 Sim. 174) 
 
 Clowes V. Clowes (2 Not. Cas. i ; 3 Curt. 185) 
 
 Coan r. Bowles (i Show. 171) 
 
 Coates V. Brittlebank, lie Brittlebank (30 W 
 
 Coates V. Wilson (5 Bsp. 152) 
 
 Cochrane, lie (8 Dowl. P. C. 630) . 
 
 Cocker v. Quayle (E. & M. 535) 
 
 Cockerell, Ma: parte (4 C. V. D. 39 ; 27 W. E 
 
 Cocksedge i: Cocksedge (5 Ha. 397) 
 
 Codrington v. Codrington (L. K. 7 H. L. 854 
 
 648) ... 
 Codrington it. Johnstone (i BeaT. 520) 
 Codrington v. Lindsay (L. E. 8 Ch. App. 57S 
 
 182) ... 
 
 Cogan V. Duffield, (z Ch. D. 44 ; 45 L. J. Ch. 307 ; 34 L. T. 593 ; 24 W. E . 905) 
 Coghlan, Re, Broughton v. Bronghton ([1894] 3 Ch. 76 ; 63 L. J. Ch. 671 ; 71 L. T. 186 ; 
 
 42 W". E. 634) . . . . 
 
 Coghlan v. Callaghan (7 Ir. C. L. Eep. 291) . • ■ 848 
 
 Coham v. Coham (13 Sim. 639) .... . • 604, 605 
 
 Cohen v. Armstrong (i M. & S. 724) . . • 7^° 
 
 Cole V. Cottingham (8 C. & P. 75)' ... • "3 
 
 Cole V. Gibbons (3 P. Wms. 393) ...... ... 548 
 
 Coleman, He, Henry i: Strong (39 Ch. D. 443 ; 55 L. J. Ch. 283 ; 53 L. T. 840 ; 34 W. E. 
 
 203) . 641 
 
 Coleman /•. Mellnish (2 M. & G. 309) S^S 
 
 Coleman r. Overseei-s of Birmingham (6 Q. B. D. 615 ; 50 L. J. M. C. 92 ; 44 L. T. 478 ; 
 
 29W. E. 715) . . . . . . 257,517 
 
 Coleman r. Riches (24 L. J. C. P. 125; i Jur. N. S. 596 ; 16 C. B. 104) 
 
 Coles r. Jones {Law Times, May 24, 1884, p. 60) . . . ... 
 
 Colgan (Infants), Be (19 Ch. D, 305 ; 51 L. J. Ch. 180 ; 46 L. T. 152 ; 30 W. E. 
 
 PAGE 
 . . 381 
 
 . 5°6. 798 
 462 
 
 • 771 
 445 
 
 97 
 720 
 656 
 
 • 749 
 . 169 
 . 387 
 . 204 
 
 . 442, 443 
 I ; 21 W. E. 
 
 • 774.775 
 
 • 694 
 
 42 L. J. Ch. 526 ; 28 L. X. 177 ; 21 W. R. 
 
 134 
 122, 142, 150 
 
 137 
 
 883, 886 
 
 • 57° 
 266) 
 641, 656 
 337. 433 
 
 CoUett V. Dickenson (11 Ch. D. 687 ; 40 L. T. 394) .... -Si. 
 
 Collins, He, Collins v. Collins {32 Ch. D. 229 ; 55 L. J. Ch. 672 ; 55 L. T. 21 ; 34 W. E. 
 
 650) ... . . 650 
 
 Collins V. Collins (9 App. Cas. 205 ; 32 W. E. 501) . . ... 41, 42 
 
 Collins V. Lefevre (i F. & F. 436) 801, 803 
 
 Colliss V. Hector (L. E. ig Eq. 334 ; 44 L. J. Ch. 267 ; 32 L. T. 223 j 23 W. E. 485) . 143 
 Collyer v. Isaacs (19 Ch. D. 342 ; 51 L. J. Ch. 14 ; 45 L. T. 567 ; 30 W. R. 70) . . 140 
 Colombine v. Penhall (i Sm. & G. 228) ... . . 154, 155 
 
 Colston V. Morris (Jac. 257 n) . . 495, 523 
 
 Compton V. Bearcrolt (2 Hag. Con. Eep. 443 n) ... 459 
 
 Condon v. VoUnm (57 L. T. 154) . .... 505, 509, 524 
 
 Conibeer, Me, Ex parte Huxtable (2 Ch. D. 54 ; 45 L. J. Bk. 59 ; 34 L. T. 605 ; 24 W. E. 
 
 6S5) ... ... . .... 161 
 
 Conington v. GiUiatt (46 L. J. Ch. 61 ; 35 L. T. 7361 25 W. E. 69) 
 Conlon V. Moore (9 Ir. C. L. 190) .... . . 
 
 Connelly v. Lawson (34 L. T. 903). (See Foristall r. Lawson) 
 Connor, Re (16 Ir. C. L. 112) 
 
 Connors r. Justice (13 Ir. C. L. Eep. 451) 
 
 Conolan ti. Ley laud (27 Ch. D. 632 ; 54 L. J. Ch. 123 ; 51 L. T. 895) 
 Constable v. Constable (24 "W. E. 649) , ... 
 
 Constable v. Constable (32 Ch. D. 233 ; 55 L. J. Ch. 491 ; 54 L. T. 608 
 470) . . . . . ' . . 
 
 Conway v. Beazley (3 Hag. Eccl. E. 639) 
 
 Cook r. Deaton (3 C. <fe P. 114) .... ... 
 
 Cook V. Feam (48 L. J. Ch. 63 ; 39 L. T. 348 ; 27' W. R. 212) 
 
 162 
 . 209 
 • 259 
 ■ 315 
 501 
 . 838 
 286, 391 
 493. 498 
 34 W. E. 
 
 . 669 
 83, 466, 469, 472 
 751 
 152 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 XXIX 
 
 Cook r. Fryer (4 Beiiv. 13) ... 
 Cooke t: Fuller (26 Beav. 99) . . . 
 Cooke's Trusts, Me (56 L. J. Cli. 637 ; 56 L. T. 737; 35 
 Coombe's Case (9 Eep. 76 a) . ... 
 CoomlDes, Jle, Coombes r. Parfltt OV. N. 1883, 169) 
 Coope i-. CressweU (L. K. 2 Eq. 106 ; 35 L. J. t'li. 496 ; 
 Cooper, In tbe Goods of S, A., (6 P. D. 34 ; 50 L. J. P. 
 W. H. 444) 
 
 W. R. 608) 
 
 14 L. T. 262 ; 14 W. E. 568) . 
 
 D. & A. 41 ; 44 L. 
 
 T. Ill ; 
 
 PAGE 
 
 . 814 
 
 199. 352, 377 
 
 • 143 
 
 . 846 
 
 377 
 695 
 
 29 
 
 • 251 
 
 Cooper i: Cooper (13 App. Cas. 88; 59 L. T. i) ... . . 143 
 
 Cooper c. Cooper (L. K. 5 Cb. 203 ; 39 L. J. Cb. 240 ; 22 L. T. i ; 18 W. U. 299) . . 547 
 
 Cooper i: Larocbe (17 Cb. D. 168 ; 43 L. T. 794 ; 29 W. K. 438) . ... 388 
 
 Cooper 1'. Lloyd (6 C. B. N. S. 519) ... 311 
 
 Cooper i: Macdonald (7 Cb. U. 288 ; 47 L. J. Cb. 373 ; 38 L. T. 191 ; 26 W. K. 377) 
 
 217. 231. 384 
 Cooper r. Uartiu (4 East, 76) 
 
 Cooper i: Pbillips (4 C. & P. 581) . ... 
 
 Cooper r. Simmons (31 L. J. M. C. 138 ; 8 Jur. N. S. 8i 
 
 J. P, 
 
 68 
 
 Cooper !'. Sladc (6 H. L. Cas. 793 ( . 
 
 Cooper !'. Thornton, (3 B. C. C. 96) 
 
 Cooper i-. Wormald (,27 Beav. 266 ; 7 W. E. 402) 
 
 Cooper (/. c. Crane) r. Crane ([1891] P. 369 ; 61 L, 
 
 Cope i: Burt (i Hag. Con. E. 434) 
 
 Cope !•. Cope (i M. & E. 269) . 
 
 Cope i: Eowlands (2 M. & W. 149) 
 
 Cope V. Wilmot (i Coll. 396 ") 
 
 Copeland i'. Simister ([1893] P. [6 ; 62 L. J. 1'. 38 
 
 Copis V. Middleton (2 Madd. 410) 
 
 Coppln r. (2 P. Wms. 496) 
 
 Corbet v. Corbet (i Sim. & St. 620) 
 
 Corbett v. Corbett (14 P. D. 7 ; 58 L. J. 1*. 17 ; 60 L. T, 
 
 Corbett v. Tottenham (i Ba. & B. 59) . 
 
 Corbridge, Ex parte. Be Beale (4 Ch. D. 246 
 
 324) . 
 Cordwell r. Mackrill (2 Ed. 344) 
 Cork r. Baker (i Stra. 34) 
 
 516, 518 
 520, 868 
 7 H. & N. 707) 
 
 733. 745. 748, 7S5> 830, 842, 848 
 
 35 ; 40 W. U. 127) . 
 
 L. T. 257 ; 41 W. E. 269) 
 
 • 530 
 . 129 
 
 72,73 
 88, 97 
 
 • 477 
 . 831 
 
 • 656 
 ■ 233 
 
 . . 156 
 
 . 198 
 
 225 
 
 74; 37 W. E. 114). . . 444 
 
 • 524. 597. 599. 657 
 46 L. J. Bk, 170 ; 35 L. T. 768 ; 25 W. K. 
 
 29S 
 
 . 129 
 
 116 
 
 Cork and Bandon Eailway v. Cazonove (10 Q. B. 935 ; 11 Jur. 802) 741, 743, 767 
 
 Corley !-. Lord Stafford (.1 De G. & J. 238) . . . . . 151 
 
 Cormick i: Digby (9 Ir. E. C. L. 557) . 888 
 
 CoiTuicks (Minors), JRe (2 Ir. Eq. Eep. 264) ... 503 
 
 Com r. Matthews ([1893] i Q. B. 310 ; 62 L. J. M. C. 61 ; 68 L. T. 480 ; 41 W. E. 262 ; 
 
 ; 26 L. T. 170 ; 20 W. E. 653) 
 . Cb. 399 ; 31 W. E. 414) 
 
 746, 754, 7SS, 830, 846 
 
 • 753. 755 
 
 741, 768, 769 
 
 . 811 
 
 57 J. P. 407) 
 Cornwall r. Hawkins (41 L. J. Cb. 435 
 Corpe r. Overton (10 Bing. 252) 
 Corsellis, Re, Lawton v. Elwes (52 L. J 
 Cory i: Bertie (2 P. Wms. 614) . . " . . • . 69S 
 
 Cory r. Cory (i Ves. Sen. 19) . .... ... 538 
 
 Cotham r. West (i Beav. 381) . . . . ... 680 
 
 Cottle r. Tripp (2 Vern. 220) .... . • . I3i> 
 
 CottreU, lie, Joyce . . Cottrell (L. E. 12 Eq. 566 ; 41 L. J. Cb. 70 ; 25 L. T. 405 ; 19 
 
 W. E. 1076) ... 652 
 
 Coucbman r. Sellar (22 L. T. 480; 18 W. E. 757) -847 
 
 Coulson, Ex paHe, lie Gardiner (20 Q. B. D. 249 ; S7 L. J. Q. B. 149 ; 58 L. T. 218 ; 
 
 36 W. E. 734) 319. 335- 433 
 
 CoupiS Co. r. Maddick ([i8gi] 2 Q. B. 413; 60 L. J. Q. B. 676 ; 65 L. T. 489) . 881, 884 
 
 Courtois V. Vincent <Jac. 268) ... 574. 606 
 
 Coventry v. Coventry (32 Beav. 612 ; 9 Jur. N. S. 313) I34. I3S 
 
 Coventry v. Woodball (Hob. Eep. 134 ; Brownl. 67 ; i Bott, 666) . . 846, 847, 84S 
 
 Coward and Adam's Purcbase, Re (L. E, 20 Eq. 179 ; 44 L. J. Cb. 384 
 23 W. E. 6051 
 
 32 L. T. 682 ; 
 
 199. 3Sr 
 
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XXX TABLE OF CASES. 
 
 PAGE 
 
 Cowles V. Potts (34 L. J. Q. B. 247 ; 13 W. E. 858 ; 11 Jur. N. S. 858) . . .852 
 
 Cowper's Case, Lafly (cited 3 Atk. 393) ... 293 
 
 Cowx V. Foster (i J. & H. 30) • • 445 
 
 Cox r. Bennett (22 W. E. 819) ... 79i 
 
 Cox V. Bennett ([1891] i Ch. 617;' 60 L. J. Ch. 651 ; 64 L T. 380; 39 W. E. 401) 
 
 333. 358, 380, 381. 426 
 
 €ox V. Mathews (2 F. & F. 397) ... 849 
 
 Cox 13. Midland Railway Co., (18 L. J. Ex. 65 ; 13 Jar. 65 ; 3 Bxeh. 268) . 877, 878, 880 
 
 Cox V. Wright (9 Jur. N. S. 981) 809 
 
 Coxhead v. MuUis (3 C. P. D. 439 ; 47 L. J. C. P. 761 ; 39 L. T. 349 ; 27 W. E. 136) 
 
 116,734,736, 744 
 
 Coysegame, lie (i Atk. 192) .... . 207 
 
 Craigie v. Hoggau (Maclean & Bob. App. 965) . 33 
 
 Craignish, He, Craig-nish v. Hewett ([1892], 3 Ch. 180 ; 61 L. J. Ch. 549 ; 66 L. T. 850 ; 
 
 40 W. E. 683) 487 
 
 Cranoh «. White (i Sc. 314 ; i Bing. N. C. 414) ... . 891 
 
 Crantz v. Gell (2 Esp. 471) .... 519 
 
 Craven v. Brady (L. E. 4 Ch. App. 296 ; 38 L. J. Ch. 345 ; 17 W. E. 505) ... 10 
 Creagh v. Wilson (2 Vern. 572) . . . ... 9 
 
 Cresswell, Be (45 L. T. 468 ; 30 W. E. 244) ... . . .691 
 
 Cresswell r. Cosins (2 Phill. 281) .... . .88 
 
 Crenze r. Hunter (2 Cox, Eq. Cas. 242 ; Jac. 250 n) . . 504, 505 
 
 ■Crichton's Trusts, lie (24 L. T. O. S. 267) . . . 610 
 
 Crickett v. Dolby (3 Ves. 10) . . . . . . 572, 639 
 
 Cripps i: Hill (13 L. J. Q. B. 130 ; 5 Q. B. 606 ; D. & M. 545) . 749 , 
 
 Crisp V. Crisp (L. E. 2 P. & D. 426 ; 27 L. T. 428 ; 21 W. E. 79) . . 163 
 
 Croit V. AUson (4 B. & Aid. 590) . ... . . . 884, 885 
 
 ■Crofton i\ Ormsby (2 Sch. & Lei 602) ... . . . 147 
 
 Crook V. Hill (3 Ch. D. 773 ; 46 L. J. Ch. 119 ; 24 W. E. 876) . 571 
 
 Crookenden v. Fuller (i Sw. & Tr. 441; . 456 
 
 Crosbie v. Hurley (2 Ale. & Nap. 431) .... . 713 
 
 Crosby v. Church (3 Beav. 485) . . ... . . 367 
 
 Crossley «. Blworthy (L. E. 12 Eq. 158 ; 40 L. J. Ch. 480; 24 L. T. 607) . 156, 158 
 
 Crouch V. Waller (4 De G. & G. 302 ; 7 W. E. 318) 441 
 
 Croughton's Trusts, Re (8 Ch. D. 460 ; 47 L. J. Ch. 79 ; 38 L. T. 447 ; 26 W. E. 574) 
 
 377. 378 
 Crowe, Me (Ir. L. T. Eep. 1883, p. 72) . . . . 573 
 
 Crowhurst v. Laverack (22 L. J. Ex. 57 ; 8 Exch. 208") . . . 578 
 
 Crowley's Case (2 Swanst. r) . . 497, 498 
 
 Cubbon, In the Goods of (11 P. D. 169 ; 55 L. J. P. 77 ; 57 L. T. 87 ; 35 W. E. 200) 369 
 
 Cublcy 1-. Cubley (30L. J.P. M. & A. 161) 513 
 
 ■Cuckson r. Stones (28 L. J. Q. B. 25 j 7 W. E. 134 ; 5 Jur. N. S. 337 ; i El. & El. 248) 865 
 Cuckson V. Winter (2 M. & E. 313) . ... . . . 714 
 
 ■Cullon V. Thompson's Trustees (6 L. T. 870 ; 9 Jar. N. S. 85 ; 4 Macq. H. L. C. 424) 
 
 838, 891 
 ■Culley I'. Charman (7 Q. B. D. 89 ; soL.J.Jf.C. iii ; 45L.T.28; 29W.E.803) 255,311 
 
 ■Cuming v. Hill (3 B. & Ad. 59) . . . 756 
 
 Cummins t\ Cummins (8 Ir. Eq. Eep. 723) 713 
 
 Cundy 0. Le Cocq (13 Q. B. D. 207 ; 53 L. J. M. C. 125 ; 51 L. T. 265 ; 32 W. E. 324) S89 
 
 Cunningham r. Antrobus (16 Sim. 436) . • . 772 
 
 Cunningham v. Cunningham (2 Dow, H. L. 482) 36 
 
 ■Cunninghame, He (L. E. 11 Eq. 324 ; 20 L. J. Ch. 247; 24 L. T. 124 ; 19 W. E. 381) . 388 
 
 Cunninghame v. Fonblanque (6 C. & P. 44) . 838 
 
 ■Cuno, He, Mansfield i\ Mansfield (43 Cii. D. 12 ; 62 L. T. 15) . 357, 370 
 
 Cuno f. Cuno (L. E. 2 H. L. (Sc.) 300; 29 L. T. 316) ... 64, 66 
 
 Cunynghame v. Anstruther (L. E. 2 Sc. & D.'App. 223) 547 
 
 ■Currant v. .Tago (8 Jur. 610 ; i Coll. 261 ) 545 
 
 Currey, lie, Gibson r. Way (32 Ch. D. 361 ; 55 L. J. Ch. 906 ; 54 L. T. 665 ; 34 W. E. 
 
 541) ... ... 136, 384, 386 
 
 ■Currie t'. Larkins (10 L. T. 47 ; 4 De G. J. & S. 245 ; 10 Jur. X. S. 349) . , . 142 
 ■Curtis, lif, Hawes v. Curtis (52 L. T, 244) ... . . . 296 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 XXXI 
 
 Curtis V. Curtis (28 L. J. Ch, 458 ; 7 W. E. 474 ; 5 Jur. N.S. H47) 
 Curtis V. Curtis (27 L. J. P. M. & A. 16 i 31 L. T. O. S. 338 ; 6 W. K. 409 
 
 193) 
 
 Curtis r. Mundy ([1892] 2 Q. B. 178 ; 40 W. E. 317) 
 
 Curtis i: Price (12 Ves. 103) .... 
 
 Curtis I'. Eippon (4 Madd. 462) 
 
 Cussons V. Skiuner (12 L. J. Ex. 347 ; 11 31. & W. 
 
 Custodes )'. Jinkes, (Sty. 283) 
 
 Cutter V. Powell (6 T. E. 320 ; 2 Sm. L. C. i) 
 
 161) 
 
 237) 
 
 D. c. F. (34 L. J. P. M. & A. 66) . 
 
 Da Cunha, In the Goods of tie Countess (i Hag. Con. E 
 
 Dagley i\ Tolferry (i P. Wms. 285 ; i Eq. Abr. 300 ; Glib. Eq. 100) 
 
 Caking v. Whymper (26 Beav. 568) 
 
 Dakins c. Beresford (i Ch. Cas. 194) 
 
 Dalrymple v. Dalrymple (2 Hag. Con. 54) 
 
 Dalton, Re (4 W. E. 761 ; 6 De G. M. & G. 201) 
 
 PAGE 
 • 503. 504 
 
 I Sw. & Tr. 
 
 ■ 513 
 810, 818 
 
 295 
 
 . 604, 605 
 
 . 838 
 
 ■ 517 
 
 ■ 925 
 
 ■ 6S 
 
 . 610 
 
 . 530, 692 
 
 . . 158 
 
 • 347 
 3, 13, 15, 29, 30, 33, 63; 106, 459, 460, 461 
 
 • 777 
 
 D' Alton !'. D'Alton (4 P. D. 87 ; 47 L. J. P. D. & A. 59) . . . . . 513 
 
 Dalton i: Gib (5 Bing. N. C. 198 ; 7 Scott, 117) ..751 
 
 Daltou c. Midland Counties Eailway Co. (22 L. J. C. P. 177 ; 13 C. B. 474) 
 
 Dalton V. South-Eastern Eailway Co. (27 L. J. C. P. 227 ; 4 C. B. N. S. 296) 
 
 Daly's Settlements, He {27 L. J. Ch. 751 ; 25 Beav. 456) 
 
 Damant v. Hennell (33 Ch. D. 224 ; 55 L. T. 182 ; 34 W. E. 774) . 
 
 D'Angibau, iie, Andrews v. Andrews (15 Ch. D. 228; 49 L. J. Ch. 756 ; 43 L. T. 135; 
 
 28 W. E. 930) 147, 372, 373, 732, 778 
 
 Daniel's Settlement Trusts, Re (i Ch. D. 375 ; 45 L. J. Ch. 105 ; 34 L. T. 308 ; 24 W. E. 
 
 227) . . .... 
 
 Daniel i.. Bowles (2 C. & P. 553) 
 
 Danily v. Piatt, Re Lowe (61 L.J. Ch. 415 ; 40 "W. E. 475 ) . 
 
 Dansey v. Eichardson (3 El. & Bl. 144) ... . . 
 
 Darby v. Boucher (Salk. 279) 
 
 Daroy i;. Croft (9 Ir. Ch. Eep. 19) . . . 
 Darcy c. Lord Holderness (i P. Wms. 704 n) . 
 Darcy v. Whittaker (33 h. T. 778 ; 24 W. E. 244) . 
 
 Darcys (Infants), Re (11 Ir. C. L. 298) 
 
 Darkin v. Darkin (22 L. T. O. S. 278 ; 2 W. E. 135 ; 17 Beav. 578) 
 
 Darley r. Darley (3 Atk. 399) 
 
 Darlington, £x parte (i Ba. & B. 240) ... 
 
 Darlow v. Edwards (32 L. J. Ex. 51 ; 6 L. T. 905 ; 10 W. E. 700 
 
 I H. & C. 547) . . • 826 
 
 Dashwood v. Magniac ([1S91], 3 Ch. 306 ; 60 L. J. Ch. 809) 684 
 
 Davenport, Re, Turner v. King ([1895], i Ch. 361 ; 64 L. J. Ch. 252 ; 71 L. T. 875 ; 43 
 
 W. E. 217) ... 
 
 Davenport v. Bishopp (i Ph. 698 ; 2 Y. & C. C. 451) 
 
 Davenport v. Davenport (i Sim. & St. loi) ... . . 
 
 Davey i: Shannon (4 Ex. D. 81 ; 48 L. J. Ex. 459 ; 40 L. T. 628 ; 27 W. E. 599) 
 
 Davcy v. Ward, Re Hodges (7 Ch. D. 754 ; 47 L. J. Ch. 335 ; 26 W. E. 390) 
 
 Davey v. Wietlisbach (L. E. 15 Eq. 269) 
 
 Davidson v. Wood (32 L. J. Ch. 400; 8 L. T. 476 ; 11 W. E. 561 ; 9 Jur. X. S. 589) 
 
 171. 172, 564 
 
 . 167, 456 
 
 . 81S 
 
 . 142 
 . 117 
 
 • 57°. 57 1 
 . 886 
 
 • 752 
 
 • 347 
 60s 
 
 . 420 
 
 • 588 
 296, 400 
 
 344. 346, 347. 654. 665 
 
 • 652 
 9 Jur. N. S. 
 
 336; 
 
 ■ 374 
 145. 149 
 . 813 
 • 833 
 . 646 
 . 667 
 
 Davles i: Austen (i Ves. 247 ; 3 Bro. C. C. 178) 
 
 Davies v. Ballenden (46 L. T. 797) . 
 
 Davies v. Davies (4 Beav. 54) . 
 
 Davies v. Davies {10 W. E. 245) 
 
 Davies v. Davies (9 C. & P. 87) 
 
 Davies v. Davies (2 De G. >I. & G. 53) . 
 
 Davies v. Davies (4 Giff. 417) 
 
 Davies v. Davies (L. E. 9 Eq. 468 ; 39 L. J. Ch. 342 ; 22 L. T. 50 ; 18 W. E, 
 Davies v. Hodgson (27 L. J. Ch. 449 ; 31 L. T. O. S. 49 ; 25 Beav. 177) 
 Davies v. Home (2 Sch. & Lei. 354) 
 Davies v. Jenkins (6 Ch. D. 728 ; 46 L. J. Ch. 761 ; 26 W. E. 260) 
 
 634) 
 
 285, 303 
 652, 662 
 
 • 331 
 14s 
 
 • 527 
 . 863 
 
 651 
 
 • 538 
 
 • 773 
 
 • 367 
 . 680 
 
 433 
 
 Digitized by Microsoft® 
 
xxxii . TABLE OF OASES. 
 
 PAGE 
 
 Davies v. Stanford (6i L. T. 234I ! . . . 272. 276. 3S8 
 
 Davles v. Westoomb (ii Sim. 425) . • • °°3 
 
 Davies v. WlUianis (10 Q. B. 725) .^ . . . . 561, 562 
 
 Davies' Policy Trusts, Be ([1892], i Cli. 90; 61 L. J. Cli. 650; 66 L. T. 104) . . 322 
 
 Davis, JJ^iJarte (5 T. E. 715) ... • 75^ - 
 
 Davis V. Black (i Q. B. goo ; 6 .Jur. 55) ■ ■ 94 
 
 Davis i: Bomford {30 L. .T. Ex. 139 ; 3 L. T. 279 ; 6 H. & N. 245) . 119 
 
 Davis V. Davis (14 P. D. 162 ; 58 L. J. 1". 88) . . • • 5M 
 
 Davis r. Prout (7 Beav. 288) .... 346 
 
 Davis r. Eussell (5 Bing-. 354) . .... . -899 
 
 Davis r. Turvey (8 L. T. 378 ; 11 W. E. 679 ; 32 Beav. 554) . ... 666 
 
 Davison v. Atkinson (5 T. K. 434) 343 
 
 Dawes v. Creyke (30 Ch. D. 500 ; 54 L. J. Ch. 1096 ; 53 L. T. 292 ; 33 W. E. 869) 
 
 137, 3SI 
 Dawes v. Tredwell (18 Ch. D. 354 ; 45 L. T. 118 ; 29 W. E. 793) . . 134. 136 
 
 Dawklns v. Lord Paulet (L. E. 5 Q. B. 102; 21 L. T. N. S. 584 ; 9 B. & S. 768) 856 
 
 Dawley v. Balli-ey (Gilb. Eq. Eep. 103) . . 530' 
 
 Dawson, lie, Johnston v. Hill (39 Ch. D. 15^ ; 57 L. J. Oh. 1061 ; 59 L. T. 725 ; 37 W. B. 
 
 51) ... . 388, 8i6- 
 
 Dawson v. Jay (2 Sm. & G. 199 ; 3 De G. M. & G. 764 ; i Jur. N. S. 37) . 605, 608' 
 
 Dawson r. Massey (i B. & B. 226) ■ . 584' 7°°' 
 
 Dawson v. Thompson (12 L. T. 178) ... 787 
 
 Dawson r. Bank of Whitehaven (5 Ch. D. 218 ; 46 L. J. Ch. 884 ; 37 L. T. 64 ; 26 W. K. 
 
 34) . . . .... . . 230 
 
 Day r. Day (11 Beav. 35) . . . 773 
 
 Deakin v. Lakin, Be Shakespeare (30 Ch. D. 169 ; SS L. J. Ch. 44 ; 53 L. T. 145 ; 33 
 
 W. E. 744) . . . . ... 286, 287, 290, 361, 391, 430 
 
 Dean v. Dean ( [1891] 3 Ch. 150 ; 60 L. J. Ch. 553 ; 65 L. T. 65 ; 39 W. R. 568) . 641 
 
 Dean v. Peel (5 East, 45) ..... . . . 562 
 
 Deare v. Souttpn (L. E. 9 Eq. 151 ; 21 L. T. 523 ; 18 W. E. 203) . . 313, 752: 
 
 Dearmer, Re, James ;■. Dearmer (53 L. T. 905) . . . . 202, 317, 345- 
 
 Dease v. Aveling (i Eob. Eccl. Eep. 279) . . 64 
 
 De Bathe i'. Lord Flngall (16 Ves. 167) .... . . . 598 
 
 Debenham v. Mellon (6 App. Cas. 24 ; 50 L. J. Q. B. 155 ; 43 L. T. 673 ; 29 W. B. 141. 
 
 In C. A. 5 Q. B. D. 394 ; 49 L. J. Q. B. 497 ; 42 D. J. 557 ; 28 W. E. 501) 
 
 303> 304. 305-309 
 De Burg-h Lawson, lie, De Burgh Lawson v. De Burgh Lawson (41 Ch. D. 568 ; 58 
 
 L. J. Ch. 561 ; 37 W. E. 797) .... . . 374, 395, 397 
 
 Deck V. Deck (29 L. J. P. M. & A. 129) . . ... 167, 47r 
 
 De Crespigny r. de Crespigny (W. N. 1886, 24) . ' 656' 
 
 De Francesco r. Barnum (45 Ch. D. 430 ; 60 L. J. Ch. 63 ; 63 L. T. 438 ; 39 W. K. 5) 
 
 755, 842, 843, 84s, S46, 850, 862- 
 
 Defries v. Davis (i Bing. N. C. 692) . . . 757 
 
 Degg V. Midland Eailway Co. (26 L. J. Ex. 171 ; 3 Jur. N. S. 395 ; i H. & N, 773) . 872- 
 De Grey v. Eichardson (3 Atk. 469) . . ... 216 
 
 De la Garde v. Lemprifere (6 Beav. 344) . ... . 208, 209, 213^ 
 
 De Manneville r. Do Manneville (10 Ves. 52) . . . . 496, 588, 781, 797 
 
 De Mazar v. Pybus (4 Ves. 644) . tgg, 
 
 De Mestre v. West ([1891] App. Cas. 264 ; 60 L. J. P. C. 66 ; 64 L. 'J'. 375) . . 148, i6o- 
 
 Dengate r. Gardiner (4 M. & W. 5) . 172, 333, 420 
 
 De Pereda v. De Mancha (19 Ch. D. 451 ; 51 L. ,T. Ch. 204; 30 W. E. 226) . . 782 
 
 D'Epineuil, Jie Count (20 Ch. D. 217) , . . . . . 162 
 
 Derbishire v. Home (5 De G. & Sm. 702) .... • , 328, 776' 
 
 Derby r. Humber (L. E. 2 C. P. 247 ; 15 L. T. 538) ... . 849 
 
 Derry v. Duchess of Mazarine (i Lord Eaym. 147) . 279. 
 
 De Stackpoole t. De Stackpoole (37 Ch. D. 139 ; 57 L. J. Ch. 463 ; 58 L. T. 382 ; 36 
 
 W. E. 561) . . . . . ' . 125. 
 
 D'Estampes' Settlement, Be, D'Estampes i\ Hanlvey (53 L. J. Ch. 1117; 51 L. T. 502; 
 
 32W. E. 978) .'13^ 
 
 D'Etchegoyen v. D'Etchegoyen (13 P. D. 132 ; 57 L. J. P. 104 ; 37 W. E. 64) . . 47a 
 Dethicli V. Bradburne (2 Sid. no) ... . . 216 
 
 Digitized by Microsoft® 
 
TABLE OF CASES 
 
 XXXIU 
 
 58 L. J. Ch. 495 ; 61 L. 
 
 De Thoren i'. Att.-Gen. (i App. Cas. 686) 
 Betmold, Re, DetmoM v. Detmold (40 Ch. D. 585 
 
 W. E. 442) . . . 
 
 Dewar, Se, Dewar v. Brooke (54 L. J. Ch. 830 ; 52 L. T. 489 ; 33 W. E. 497) 
 De Witte 0. PaUn (L. E. 14 Eq. 251 ; 26 L. T. 825 ; 20 W. R 858) 
 D'Eyneourt 1'. Gregory (3 Ch. D. 635 ; 45 L. J. Ch. 745 ; 25 W. E. 6) 
 Dias !'. De Llvera (5 App. Ciis. 123 ; 49 L. .1, 1". C. 26 ; 46 L. T. 367) . 
 
 Dicken v. Hamer (29 L. J. Ch. 778 ; 2 L. T. 276) 
 
 Dickenson i: Toesdale (i De G. J. & S. 60) 
 
 Dickenson c. Xortli-Eastcru Eailway Co. (33 L. J. Ex. 91 ; 2 H. & C. 735) 
 
 Dickison r. Holcroft (^3 Keb. 148) 
 
 Dickson, Jie, Hill e. Grant (29 Ch. D. 331 ; 54 L. J. Ch. 510 ; 52 L. T. 
 
 5") .... 
 
 Diddear v. Fawcit (3 Phill. 580) . .... 
 
 Dilk t\ Keig'hley (2 Esp. 480) . . . . 
 
 Dillon i\ Cunningham (L. E. 8 Ex. 23 ; 42 L. J. Ex. 11 ; 27 L. T. 830) 2( 
 
 Dillon f. Lady Mountoashell (4 Bro. P. C. 306 ; 3 Salk. 177) . 
 
 Dinning i: South Shields Union (3 Q. B. D. 25 ; 53 L. ,1. 31. C. 90) 
 
 Di Savini c. Lonsada (22 L. T. 61 ; 18 W. E. 425) . 
 
 District Bank ol London, Ex parte. Be Genese (16 Q. li. D. 700 ; 53 L. .1. t'l 
 
 W. E. 79) . 
 
 PAGE 
 6,35 
 
 T. 21 ; 37 
 
 , 140 
 
 . 690 
 
 . 641, 651 
 
 . 669 
 
 187 
 
 220 
 
 372 
 
 • S63' S72 
 
 112, 113 
 
 707 ; 35 W. E. 
 
 . 641, 645 
 
 734. 75° 
 
 . 319. 331. 336 
 
 619, 620 
 
 ■ 255 
 608, 609, 620 
 118; 34 
 • 297, 299 
 
 Ditcham c. Worrall (5 C. P. D. 410 ; 49 L. J. C. P. 688 ; 43 L. T. 286 ; 29 W. E. 50) 
 
 116, 734, 736, 744, 759, 760, 762 
 Dixon, lie, Byram c. Tiill (42 Ch. D. 306 ; 61 L. T. 718 ; 38 W. E. 91) . . . . 188 
 Dixon, JRe, Dixon p. Smith (35 Ch. D. 4 ; 56 L. J. Ch. 773 ; 57 L. T. 94 ; 35 W. E. 742 357, 384 
 Dixon 1: Bell (i Stark. 287 ; 5 M. & S. 198) . . ' . . . . 862 
 
 Dixon !'. Dixon (9 Ch. D. 587 ; 27 "W. E. 282) 203, 367, 399, 400 
 
 Dixon r. Fawcus (30 L. J. Q. B. 137; 3 L. T, 693 ; 7 Jur. X. S. 895; 9 W. E. 414 ; 3 
 
 El. & El. 537) 
 Dixon r. Olmius ( 2 Cox, Eq. Cas. 414) 
 Dixon ('. Parsons (i V. & F. 24) 
 Dobhyn c. Corneek (2 Phill. 102) . 
 Dobson t: Collins (25 L. J. Ex. 267 ; i H. & N. 81) 
 Docker i'. Somes (2 Myl. & K. 655) 
 Dodd V. Cary (13 L. J. Ch. 103) 
 Doe (dem. Fleming) 1: Fleming' ( 4 Bing. 266) 
 Doe V. Eoberts (16 M. & W. 778) . 
 Doe (dem. Bromficld) r. Smith (2 T. B. 436) 
 Doe c. Weller (7 T. E. 478) ... 
 D'Oechsner !'. Scott (24 Beav. 239) ... 
 Dolphin i: Aylward (L. E. 4 H. L. 486) .... 
 
 Dolphin I . Eobins (29 L. J. P. il. & A. 11 ; 7 H. L. Cas. '390; 5 Jur. X. 
 
 Macq. 563) 
 
 Don I . Lipmann (5 CI. & F. i) 
 
 Doncaster r. Eopcr, Me Eoper (39 Ch-. D. 482; 58 L. J. Ch. 215; 59 L. T 
 
 75°) 
 
 Donoghue '■. Marshall (32 L, T. 310) 
 
 Donovan .-. Lang ([1893], i Q. B. 629; 63 L. .J. Q. B. 25 ; 68 L. T. 512 ; 
 
 455> ■ • 
 
 Dorchester 1: Webb (Cro. Car. 372) . . . . . 
 
 Dorln V. Dorin (L. E. 7 H. L. 568) .... . . 
 
 Dorman, Ex parte (L. E. 8 Ch. App. 54; 42 L. .J. Bk. 20; 27 L. T. 528; 
 
 94) . . ... . . 
 
 Dormer i: Fortescuc (3 Atk. 124) .... 
 
 Dormer f. Williams (i Curt. 870) . . . . . . 
 
 Doncet c. Geoghegan (9 Ch. D. 441 ; 26 W". E. 825) ... 
 Douglas V. Andrews (19 L. J. Ch. 69 ; 14 Jur. 73 ; 12 Beav. 310) . 
 Dover v. Alexander (12 L. J. Ch. 175 ; 7 Jur. 124 ; 2 Ha. 275) 
 
 • 203: 
 
 869 
 
 ■ 347 
 
 • 854 
 
 93 
 
 ■ 834 
 688, 702 
 
 443 
 7 
 
 • 725 
 765 
 
 . . 183 
 
 • 376 
 159 
 
 • 1271 ; 3 
 83, 167, 466 
 
 • 143 
 
 36 W. E. 
 
 • 395. 396 
 114 
 E. 
 
 41 ^\■. 
 
 883 
 243 
 570 
 
 21 W. E. 
 
 298 
 . 806 
 
 • 97 
 
 • 4S6 
 637, 650 
 
 • 569 
 
 Dowcra, i2e,Dowcra«. Faith (29 Ch.D. 693; 54 L. J. Ch. 1121 ; 53L.T.288; 33W.K. 
 
 57) 326 
 
 Dowd». Hawtin.iZe Hopkins (19 Ch. D. 61; 30 W. E. 601J . . ... 695 
 
 Digitized by Microsoft® 
 
xxxiv TABLE OF CASES. 
 
 PAGE 
 
 Bowling !•. Belton (i Fl. & Kel. 462) . . .679 
 
 Cowling V. Tyrrell (2 E. & M. 343) . . . . • -'572 
 
 Downe v. Fletcher (21 Q. B. D. 11 ; 59 L. T. 180; 36 W. K. 694) • 263. 35^. 43^ 
 
 Downshire, Marquis ol, r. Lady Sandys (6 '\'cB. 107) . . ■ °°3 
 
 Boyle V. Blake (2 Sch. & Lef. 239) .... . . . ■ 273, 
 
 Boyley v. Fersull (2 Ch. Cas. 225) . . . . • • 342 
 
 Boyley v. Tolferry (i P. Wms. 285) . . • • • • 53'> 
 
 Drake r. Fortune (i Moll. 201) . . • • ^^9 
 
 Drax, Be, Savile v. Yeatman (57 L. T. 475) ■ ... 825. 
 
 Drax V. Fooks ([1896], i Q. B. i) . . [see Addmda 
 
 Braycott v. Harrison (17 Q. B. D. 147 ; 34 W. B. 546) . ■ 335. 383' 433 
 
 Brew V. Nunn (4 Q. B. B. 661 ; 48 L. J. Q. B. 591 ; 40 L. T. 670 ; 27 M'. K. 810) . 303 
 
 Brummond I'. Tracy (Johns. 611) ■ • 325' 
 
 Brnmmond and Bavie's Contract, lie ([1891], i C'h. 524 ; 60 L. J. Cli. 258; 64 L. T. 
 
 246; 39W. E. 445) . . . ■ 192.365. 
 
 Brury v. Brury (2 Ed. 39) 124. 224, 745, 772, 776 
 
 Brury v. Fitch (Hutt. 17) . • • 594 
 
 Bry butter v. Bartholomew (2 1*. Wms. 127) • 220 
 
 Buberley r. Day (16 Beav. 33) ... ... 185 
 
 Bublin and Wicklow Eailway Co. e. Black (22 L. J. E.x. 94; 8 Exch. 181 ) 742^ 
 
 Buckworth v. Johnson (4 H. & N. 653) . 53i. 5^3 
 
 Dudley's Case, Lord (cited 2 Yes. Sen. 484) 615. 620, 699. 
 
 Buffy's Trusts, lie (28 Beav. 386) . 211; 
 
 Bugg-an p. Kelly (10 Ir. Eq. K. 295) ... 9 
 
 Buins V. Bains (pthenmse Donovan) (3 Hag. Eccl. Eep. 301) . 80 
 
 Dumper r. Bumper {3 Gift. 503) .... 544 
 
 Buncan v. Cannan (23 L. J. Ch. 26?) . 143 
 
 Buncan v. Dixon (44 Ch. D. 2ii ; 59 L. J. Ch. 437 ; 62 L. T. 319 ; 38 W. E. 700) 
 
 125, 779 
 Duncomb v. Duueomb (3 Lev. 437) .... . 223', 
 
 Duncombe v. Greenacre (28 Beav. 482 ; 2 De G. F. & J. 509) . 210 
 
 Buncombe v. Turkridge (9 Vin. Abr. Enf, 2, 392) ... . . 749. 
 
 Dundas v. Dutens (i Ves. 196) . . . 129, 144, 159 
 
 Bimkley r. Bunkley (2 Be G. M. & G. 390) . 211 
 
 Bunn V. Bunn (i Jur. N. S. 122 ; 7 De G. M. & G. 25) . . 814 
 
 Bunnill's Trusts, Re (Ir. Eep. 6 Eq. 322) . . 376 
 
 Burrant r. Titley, (7 Pri. 577) ... . 442 
 
 Burham c. Burham (10 P. D. 80) .... ... 76.77 
 
 Durham, Earl of, v. Wharton (6 L. J. Ch. 17 ; 10 Bli. 526 ; 3 CI. cSc F. 146) . 540 
 
 Durnford r. Lane (i Bro. C. C. 106) . . . 771, 772 
 
 Dye r. Dye (13 Q. B. D. 147 ; 53 L. J. Ch. 442 ; 51 L. T. 145) . . 345, 
 
 Dyer v. Dyer (2 Cox, Eq. Cas. 92) . . . .... 544, 682.' 
 
 Dyer v. Munday ([1895] i Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T. 448 ; 43 W. E. 440) . 883, 
 Dyke v. Stephens (30 L. J. Ch. 189 ; 55 L. J. Ch. 41 ; 53 L. T. 561) . . . 811 
 
 Dyneu v. Leach (26 L. J. Ex. 221) ... '. . ... 1563, 871 
 
 Eager v. Furnivall (17 Ch. D. 115 ; 51 L. J. Ch. 537 ; 44 L. T. 464 ; 45 L. T. 603 ; 29 
 
 W. E. 649) . . . . 217 
 
 Eager v. Grimwood (i Exch. 61) .... ... . 560' 
 
 Eagleton v. Homer, Jle Horner (37 Ch. D. 695 ; 57 L. J. Ch. 211 ; 58 L. T. 103; 36 
 
 W. E. 348) ... -371 
 
 Earl V. Ferris (19 Beav. 67 ; 24 L. J. Ch. 20 ; j. Jur. N. S, 5) . • 424 
 
 Earle v. Wilson (17 Ves. 528) .... . 571 
 
 Eastland r. Burchell (3 Q. B. D. 432 ; 47 L. J. Q. B. 500 ; 38 L. T. 568; 27 W. E. 290) 
 
 311, 312- 
 Eastmead r. Witt (25 L. J. C. P. 294; 2 Jur. N. S. 1004; 18 C. B. 544) . . 856 
 
 Eaton I'. Western (9 Q. B. D. 636 ; 52 L. J. Q. i;. 41 ; 47 L. T. 593 ; 31 W. E. 313) 
 
 843, 844, 847, 848. 
 Ebbet's Case, (L. E. 5 Ch. App. 302 ; 39 L. J. Ch. 497 ; 22 L. T. 424 ; 18 W. E. 394) 742- 
 
 Ebrand v. Dancer (2 Ch. Cas. 26) . . 545 
 
 Eddowesw. Argentine Loan & Mercantile Agency Co. (62 L. T, 602) . 287, 320, 324. 
 
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TABLE OF CASES. xxxv 
 
 PAGE 
 
 4 
 
 Edes V. Brereton (West, Cas. t. Hardw. 348) . _g 
 
 Edinondson i: Stevenson et uxor, (cited Bull. N. P. 8) . See 
 
 Edmondson v. Machell (2 T. E. 4) . . . c5i 5,3 
 
 Edmondstone Case, The 
 
 Edmunds i: Bushell (L. E. i Q. U. 97 : 35 h. J. Q. B. 20 ; 12 ,)ur. X. S. 332) 301 
 
 Edwards, Jh- (L. E. 9 Ch. App. 97; S. (.'. 43 L. J. Cli. 265 ; 29 L. T. 712 ; 22 W. K, 144) 
 
 133. 137 
 
 Edwards, £.cj)Orte (3 Atk. 519) 597,606 
 
 Edwards i: Carter ([1893] App. Cas. 360 ; 63 L. J. Ch. 100 ; 69 I^. T. 153) 
 
 766, 770, 771, 775, 776 
 Edwards ;•. Cheyne [No 2] (13 App. Cas. 385) . .... 296, 387 
 
 Edwards v. Dewar, He Andrews (30 Ch. D. 159; 54 L. J. Ch. 1049; 53 L. T. 422) 
 
 381, 426 
 Edwards v. Jones (14 W. E, 815) . . . ... 347 
 
 Edwai'ds v. Levy (2 ¥. & F. 94) . . 8^7 
 
 Edwards v. Martyn (21 L. J. Q. B. 86 ; 17 y. ii. 693 ; 16 .)ur. 358 ; 2 L. M. & 1'. 669) 
 Elcom,iJe, Layhom v. Groves- Wright ([1894J i Ch. 303 ; 63 L. J. Ch. 392 ; 70 L. T. 54 
 
 42W. E. 279) . . . .204 
 
 Elder r. Pearson, Me Bellamy (25 Ch. D. 620 ; 52 L. J. Ch. 174 ; 49 L. T. 708 ; 32 W. E. 
 
 358) .... . . 231 
 
 337 
 
 258 ; 50 L. T. 26) . 508 
 
 . 209 
 . 447 
 847 
 
 Elderton (Infants) He (27 Ch. D. 220 ; 53 L. J. Ch. 
 
 Elibank, Lady, v. Montolieu (5 Ves. 737) 
 
 Ellam V. EUam (58 L. J. P. 56 ; 61 L. T. 338) 
 
 Ellen r. Topp (20 L. J. Ex. 241 ; 6 Exch. 424) 
 
 Elliott, In the Goods ol (L. E. 2 P. & M. 274 ; 40 L. J. P. M. & A. 76 ; 25 L. T. 203 
 
 19 W. K. 1072) ... . . 351, 370 
 
 EUiot V. Collier (3 Atk. 576) . ... 201 
 
 Elliott r. Cordell (5 Madd. 149) . . . 209,211 
 
 Elliott i: Elliott (54 L. J. Ch. 1142) . . . . 725 
 
 Elliott V. Gurr (2 Phill. 16) 62, 74 
 
 Elliott i: Lambert, iJe Callaghan (28 Ch. D. 186; 54 L. J. Ch. 292 ; 52 L. T. 7; 33 W.H. 
 
 IS7) 506, 797, 798 
 
 Ellis r. Atkinson (3 Bro. C. C. 565) . . . 376 
 
 Ellis V. EUis (I Sch. & Lef. i) . . . . . 376, 640 
 
 Ellis v. Ellis (5 Mod. 368) .... . 752 
 
 Ellis V. Johnson {31 Ch. D. 532 ; 55 L. J. Ch. 325; 54 L. T. 411 ; 34 W. K. 309) 
 
 287, 332. 380, 393, 426 
 Ellis' Trusts, Jie (L. K. 17 Eq. 409 ; 43 L. J. Ch. 444 ; 22 W. E. 448) 375, 377, 378, 384 
 
 Elton V. Shepherd (i Bro. C. C. 552) . . . 348 
 
 Elwes V. Const (i Madd. Ch. Pi-. 435) . 606 
 
 Elworthy v. Bird (2 Sim. & .St. 372) . . . . 440 
 
 Elworthy r. Wickstead (i J. & W. 69) . 212 
 
 Emery r. Emery (i Y. & J. 501) . . . 313 
 
 Emery's Trusts, He (30 L. T. 197) . . . . ^cj 
 
 Emmanuel v. Parflt, He Tucker (54 L. J. Ch. 874; 51 L. T. 923 ; 33 W. It. 932) . 357 
 
 Emmett r. Norton (8 C. & P. 506) ... .... 308,311,312 
 
 England, JJe (I E. & M. 499) 506,651 
 
 Erlang-er r. New Sombrero Phosphate Co. (3 App. Ca^. 1218 ; 48 L. J. Ch. 73 ; 39 L. T. 
 
 269 ; 27 W. E. 65) ... . . 585 
 
 Errat v. Barlow (14 Ves. 202) . . . . 648 
 
 EiTington v. Chapman (12 Ve.«. 20) . . 641 
 
 Espey v. Lake (10 Ha. 260) ... . . 710 
 
 Essery v. Cowlard (26 Ch. D. 191 ; 53 L. J. Ch. 661 ; 32 W. li. 518) 122 
 
 Essex V. Atkins (14 Ves. 542) . . 295, 367, 399 
 
 Este V. Smyth (23 L. J. Ch. 705 ; 18 Beav. 112 ; 18 Jur. 300) . 143 
 
 Etherlngton v. Parrott (2 Lord Eaym. 1006 ; i Salk. 108) 304, 308, 828 
 
 Eustace v. Keightley (4 Bro. P. C. 588) ... 226 
 
 Evans, Me, Welch i: Channell (26 Ch. D. 58 ; 53 L. J. Ch. 709 ; 51 L. T. 175 ; 32 W. K. 
 
 736) ... • . . 657 
 
 Evans f. Bear (L. E. 10 Ch. App. 76 ; 31 L. T. 625 ; 23 W. E. 671 . . 689 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 PAGE 
 
 Evans v. Carrington (29 I.. J. Ch. 330 ; i L. T. 229 ; 8 W. K. 213 ; 2 De G. F. & J. 481 ; 
 
 IJ.&H.S98) . ... . ■ • • 436,445 
 
 Evans v. Collins (5 Q. B. 805) . .... • ' fi ' fi fi 
 
 Evans v. Masscy (i T. & J. 196) . . ... • 0C3, 656 
 
 Evans v. Maxwell, Re Ornie (50 L. T. 51) 544. 545. 640 
 
 Evai.s (.. Walton (L. E. 2 C. P. 615 ; 36 L. J. C. P. 307 ; 17 L- T. 92 ; 15 W. E. 1062) 
 
 558, 560, 562, 862 
 
 Evans 0. Ware ([1892] 3 Ch. 502 ; 67 L. T. 285) . . • 753- 755. 819 
 
 Evans v. Wyatt (10 W. K. 813 ; 8 Jur. N. S. 499 ; 31 Beav. 217) . ■ 152 
 
 Evelyn v. Chichester (3 Burr. 1717) ■ 727. 74°. 765 
 
 Evered v. Evered (43 L. J. P. II. & A. 86 ; 31 L. T. loi ; 22 W. E. 845) . 164 
 
 Everett v. Paxton (65 L. T. 383) 286, 287, 391 
 
 Everitt v. Everitt (L. E. 10 Eq. 405 ; 23 L. T. 136 ; 18 W. E. 1020) ■ 152 
 
 Bveritt ii. Wilkins (29 L. T. 846) ...*...• 741.769 
 
 Everley, In the Goods of ([1892] P. 50 ; 61 L. J. P. 53 ; 65 L. T. 765) . . . -239 
 
 Ewart V. Chubb (L. E. 20 Eq. 454 ; 45 L. J. Ch. 108) 35^ 
 
 Evping u. Wheatley (2 Hag. Con. E. 175) ... . -97 
 
 Eykyn's Trusts, Be (6 Ch. D. 115 ; 37 L. T. 261) . . . ■ • • 294 
 
 Eyre v. Countess of .Shaftesbury (2 P. Wms. 103 ; Gilb. Eq. Eep. 172 ; 2 W. & T. L. C. 633) 
 
 494, 585, 588, 591, 598, 599, 600, 617, 623, 624, 625, 629, 787, 790 " 
 
 Fair, Me (13 Ir. Eep. Eq. 278) ... . . . . 727 
 
 Fairhurst v. The Liverpool Loan Association (23 L. J. Ex. 163 ; 9 Exch. 402) 269, 279 
 
 Fairley c. Tuck (27 L. J. Ch. 28 ; 3 Jur. N. S. 1089) .... '228 
 
 Fane v. Fane (i Vern. 30) ... ... . ., 53° 
 
 Pa-ley v. Bonham (30 L. J. Ch. 239 ; 3 L. T. 806 ; 9 W. E. 299 ; 2 J. & H. 177) .j 220 
 
 Farrel v. Barrie (i Feb. 1828, 6 S, 472) . . .... I 32 
 
 Farrer v. Farrer (76 L. T. Jour. 37) . . 1 661 
 
 Farrington v. Forester, Re Jones ([1893] 2 Ch. 461 ; 62 L. J. Ch. 996 ; 69 L. T. 45) . 776 
 Farrow v. Wilson (L. E. 4 C. P. 744 ; 38 L. J. C. P. 326 ; 18 W. E. 43) J 834 
 
 Faulkner v. Daniel (3 Ha. 204) . . , . ■ 695 
 
 Fawcett v. Cash (5 B. & Ad. 904) . . . .• ; . 831, 832, 833 
 
 Fawkner v. Watts (i Atk. 406) <■ 647 
 
 Fear v. Castle (8 Q. B. D. 380 ; 51 L. J. Q. B. 279 ; 45 L. T. 544 ; 30 W. E. 271) . i 260 
 Pearon i: Earl of Aylesford (12 Q. B. D. 539 ; 53 L, J. Q. B. 410 ; 50 L. T. 508, 662 ) 
 
 436, 438, 440, 441 
 Fellowes v. Stewart (2 Phill. 238) ... .... 91 
 
 Fellows V. Barrett (i Keen, 119) ... . • . 811 
 
 Fellows V. Wood (59 L. T. 513) ... . ... 755, 768 
 
 Feltham v. England (L. E. 2 Q. B. 33; 36 L. J. Q. B. 14; 25 W. E. 151 ; 7 B. & S. 
 
 676) .... .873 
 
 Fendalli). Goldsmith (2 P. D. 263; 46 L. J. P. 70) 92,452 
 
 Fendall v. O'Connell (29 Ch. D. 899 ; 54 L. J. Ch. 756 ; 52 L. T. 553 ; 33 W. E. 619) 421 
 
 Ferguson v. Carrington (9 B. & C. 59 ; 3 C. & P. 457) 876 
 
 Ferguson u. Clayworth (13 L. J. Q. B. 329 ; 6 Q. B. N. S. 269 ; 2 D. & L. 163) 269 
 
 Ferguson v. Gibson (L. E. 14 Eq. 385 ; 41 L. J. Ch. 640) 299 
 
 Ferguson's Trusts, lie (22 W. E. 762) . 610 
 
 Ferns v. Carr (28 Ch. D. 409 ; 54 L. J. Ch. 478 ; 52 L. T. 348 ; 33 W. E. 363) . . 848 
 Fettiplaoe v. Gorges (i Ves. 46 ; 3 Bro. c. c. 8) . . . . 252, 366, 369 
 
 Fewings v. Tlsdal (i Exch. 295) ... 839, 865 
 
 Field V. Evans (15 Sim. 375) . 376 
 
 Field V. Moore (24 L. J. Ch. 161 ; 7 De^G. M. & G. 691 ; 24 L. T. O. S. 179 ; 3 W. E. 98 ; 
 
 19 Jur. 33 ; 19 Beav. 176 ; 3 Eq. Eep. 215) 
 
 124, 664, 729, 771, 772, 773, 776, 791, 795 
 Field V. Sowle (4 Buss. 112) . . . . . . . . 281 
 
 Field's Nullity Bill (2 H. L. Cas. 48) . . 71 
 
 Figg V. Wedderburne (11 L. J. Q. B. 45; 6 Jur. 218) .... . 819 
 
 Fillieul V. Armstrong (7 A. & E. 557) ... . . 838, 860 
 
 Findlay (an Infant), lie (32 Ch. D. 221 ; 55 L. J. Ch. 395) ... .604 
 
 Finlay v. Ohirney (20 Q. B. D. 494 ; 57 L. J. Q. B. 247 ; 58 L. T. 664 ; 36 W. E. 534) 117 
 Firebrace v. Firebrace (4 P. D. 63 ; 47 L. J. P. D. & A. 41 ; 39 L. T, 94) . . 472 
 
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TABLE OF CASES. xxxvii 
 
 PAGE 
 
 Fiimin w. Piilham (12 Jar. 410; sDeG. &S. 99) .... . . 536 
 
 Fisher v. Shirley (43 Ch. D. 290 ; 59 L. J. Ch. 29; 61 L. T. 668 ; 38 W. R. 70) 137 
 
 Fitzer r. Fitzer (2 Atk. 511) ... . . 445 
 
 Fitzgerald, Ee (2 Soh. & Lef. 436) . . . . 613 
 
 Fitzgerald v. Fitzgerald (L. K. i P. & D. 694) . . . . 449 
 
 Fitzgerald v. Fitzgerald (L. E. 2 P. C. 63 : 37 L. J. P. 0. 44 ; 5 Moo. P. C. 180) . 242 
 
 Fitzgerald's Estate, Be, Saunders v. Boyd (.[1891] 3 Ch. 394; 60 L. J. Ch. 624; 65 
 
 L. T. 242 ; 40 W. K. 29) . 540 
 
 Fitzgerald's Trusts, Me (58 L. J. Ch. 662 ; 61 L. T. 221 ; 37 W. Li. 552) . . .238 
 
 Fitzwater, JJe, Fitzwater v. Waterhouse (52 L. J. Ch. 83) 817 
 
 Flamank, Se, Wood v. Cock (40 Ch. D. 461 ; 58 L. J. Ch. 518 ; 60 L. T. 376 ; 37 W. K. 502) 296 
 Fleet !•. Perrins (L. E. 4 Q. B. 500 ; 38 L. J. Q. B. 233 ; 20 L. T. 814 ; 17 W. R. 862) . 198 
 Fleming r. Armstrong (II L. T. 470; 34 Bear. 109) . . . 384 
 
 Fletcher v. Dodd (i Ves. 85) . . . 696 
 
 Fletcher v. Walker (3 Madd. 73) . . . 688 
 
 Flight V. BoUand (4 Euss. 298) . . 734, 763, 809 
 
 Flood's Trusts, He, (11 L. K. Ir. 355) . . 38s 
 
 Flower v. BuUer (15 Ch. D. 665 ; 49 L. J. Ch. 784 ; 43 L. T. 311 ; 28 W. K. 948) 390, 433 
 
 Flower v. Flower (25 L. T. 902 ; 20 W. E. 221) . 439 
 
 Flower i: Loudon & North-Western Eailway Coy. ([1894] 2 Q. B. 65 ; 63 L. .J. Q. B. 
 
 547 ; 70 L. T. 829 ; 42 W. E. 519) . . 746 
 
 Floyer v. Bankes (L. E. 8 Eq. 115) . . 682 
 
 Fluck V. ToUemache (i C. & P. s) ■ S19 
 
 Follett r. Tyrer (14 Sim. 125) ... . 217 
 
 FolUt V. Koetzow (20 L. J. M. C. 128 ; 2 El. & El. 730) . S77 
 
 Foord !). Morley (i F. & F. 496) . . 863 
 
 Forbes v. Moffat (18 Ves. 384) . . . 679 
 
 Fordi;. Fothergill (I Esp. 211) . . . 750 
 
 Fores v. Wilson (i Peake, 77) . 560, 561, 862 
 
 Forgan v. Bnrke (12 Ir. C. L. Eep. 495) . . 825 
 
 Forlstall v. Lawson (34 L. T. 903) ■ 315 
 
 Forrestier v. Buddicomb (W. X. 1881, 144) . . 79 
 
 Forsyth v. Forsyth ([1891] P. 363 ; 61 L. J. P. 13 ; 65 L. T. 556) . 165 
 
 Fort V. Fort (Forr. 171) . . . . 200 
 
 Fosdike r. Sterling (i Freem. 236) . 420 
 
 Foster, He (18 Beav. 525) . . 425 
 
 Foster v. Denny (2 Ch. Cas. 237) .... 619, 796 
 
 Foster r. Foster (i Ch. D. 587; 45 L. J. Ch. 301 ; 24 W. E. 185) ... 671 
 
 Foster and Lister, Ee (6 Ch. D. 87 ; 46 L. J. Ch. 480 ; 36 L. T. 582 ; 25 W. K. 553) . 159 
 Foster v. Parker (8 Ch. D. 147) ... -730 
 
 Foster v. Eedgrare (L. E. 4 Ex. 35 n) . . ■ 75° 
 
 Foster i: Stewart (3 M. & S. 201) . . . SS9> 846 
 
 Foulkes, Be, Foulkes v. Hughes (69 L. T. 183) 763 
 
 Foulkes V. Foulkes (69 L. T. 461) . . 354 
 
 Foulkes V. Sellway (3 Esp. 336) 118 
 
 Fountain v. Boodle (3 Q. B. 5) ... . 855, 857 
 
 Fowke V. Draycott (29 Ch. D. 996 ; 54 L. J. Ch. 977 ; 52 L. T. 890 ; 33 W. E. 701) 192, 210 
 Fowkes t. Pascoe (L. E. 10 Ch. App. 343; 44 L. J. Ch. 367; 32 L. T. 545 : 23 W. K. 
 
 538) 542. 544, 640 
 
 Fowler v. Foster (28 L. J. Q. B. 210 ; 5 Jur. N. S. 99) . 162 
 
 Fowler r. Fowler (3 P. Wms. 355) ■ • • 40S 
 
 Fox, £x parte. Be Smith (17 Q. B. D. 4 ; 55 L. J. Q. B. 288 ; 54 L. T. 307; 34 W. E. 
 
 535) ... ... 
 
 Fox V. Fox (L. E. 19 Eq. 286 ; 23 W. E. 314I 
 
 Fox V. Hawks (13 Ch. D. 822 ; 49 L. J. Ch. 579 ; 42 L. 
 
 Fox V. Suwerkrop (i Beav. 583) 
 
 Foxoroft's Case (10 Ed. i ; 4 Vin. Abr. 218, pi. i8) 
 
 Frampton v. Frampton (4 Beav. 293) 
 
 Frampton v. Stephens (21 Ch. D. 164 ; 51 L. J. Ch. 502 ; 
 
 864 
 
 638 
 
 T. 622 ; 28 W. E. 656) 293, 347 
 
 . 812 
 
 15. 476 
 
 436. 443 
 
 46 L. T. 617 ; 30 W. E. 726) 
 
 218, 230, 237 
 France r. France (L. E. 13 Eq. 173 ; 41 L. J. Ch. 150; 25 L. T. 785 ; 20 W. E. 230) . 667 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 814 
 
 S9 L. J. Ch. 404 ; 62 L. T. 423 ; 38 
 
 3S4 
 
 317 
 
 92 
 
 656 
 
 • 209 
 
 295 
 681 
 114 
 389 
 
 PAGE 
 
 Frank i\ Frank (3 Jlyl. c& Cr. 171 ... • 225 
 
 Frank v. Mainvvaring- (4 Beav. 37) . 
 
 Frank »■. Muzeen, Jte Woi-maM (43 Ch. D. 630 ; 
 
 W. K. 425) 
 
 Franks, Sx parte (7 Bing-. 762 ; i JI. & S. 1) . 
 
 Frankland r. Nicholson (3 31. & S. 259 n) 
 
 Franklin c. Green (2 Vern. 137) 
 
 Fraser v. Taylor (2 Euss. & Myl. iqo) . 
 
 Fraser v. Thomson (4 De G. & J. 659) . . .... 155 
 
 Frazer v. Hatton (26 L. J. C. P. 226) . . . .... 864 
 
 Frederic v. The Attorney-General (L. E. 3 P. & D. ig6 ; 43 L. J. V. 31. & A. 32 ; 30 
 
 L. T. 767 ; 22 W. E. 416) ..... . . 488 
 
 Frederick v. Frederick (i P. Wms. 710) . . 592 
 
 Freeman v. Cox (8 Ch. D. 148; 47 L. J. Ch. 560 ; 26 W. E. 689) . . 691 
 
 Freeman v, Fairlie (11 Jur. 447) 210 
 
 Freeman v. Goodman (i Ch. Cas. 295) 258 
 
 Freeman v. Pope (L. E. 5 Ch. App. 538 ; 39 L. J. Ch. 689 ; 23 L. T. 208 ; 18 W. K. 906J 1^6 
 Freestone i\ Butcher (9 C. & P. 643) .... . 308, 310, 314 
 
 Freme v. Clement (18 Ch. D. 499 ; 50 L. J. Ch. 801 ; 44 L. T. 399 ; 30 W. E. i) . SS4 
 
 French v. Davidson (3 3Iadd. 396) ... . . .... 655 
 
 French !■. French {28 L. T. O. S. 222 ; 6 De G. 31. & G. 95) . 
 
 Frith !'. Cameron (L. E. 12 Eq. 169, 24 L. T. 791 ; ig W. E. 886) . , . 
 
 Frost V. Knight (L. E. 7 Ex. in ; 41 L. J. E.\-. 78 ; 26 L. T. 77 ; 20 W. E. 471) . 
 
 Fry V. Cap^ier (Kay, 163) 
 
 Fry V. Noble (25 L. J. Ch. 144 ; 2 Jur. N. S. 128; 7 De G. M. & G. 687) . . 228 
 
 Fry «). Porter (i Ch. Cas. 138) .... ... 9 
 
 Fry r. Tapson (28 Ch. D. 268 ; 54 L. J. Ch. 224 ; 51 L. T. 326 ; 33 W. E. 113) . 690 
 
 Fuggle r. Bland (11 Q. B. D. 711) . . . .... 432 
 
 Furnivall «. Brooke (49 L. T. 134) .... . . . 817 
 
 Furneanx v. Eucker (W. N. 1889, 135) . . . . . 646 
 
 Furrillo v. Crowther (7 D. & E. 612) . . 577 
 
 Fynn, TJe, (12 Jur. 713) . 502,503,603,784,796 
 
 G. (an Inlant), lie ([1892] i Ch. 292 ; 61 L. J. Ch. 490 ; 66 L. T. 336) 510, 597, 603, 606 
 G. V. G. (L. E. 2 P. & D. 287 ; 40 L. J. P. M. & A. 83 ; 25 L. T. 510 ; 20 W. K. 103), 64, 65, 66 
 G. V. L, ([1891] 3 Ch. 126; 60 L. J. Ch. 705 ; 64 L. T. 732 ; 40 W. E. 10) . 781 
 
 G. V. T. (I Eccl. & Ad. Eop. 389) . 65 
 
 Galtee, iJe, (19 L. J. Ch. 179 ; 1 31. & G. 541) ... . . 376 
 
 Gage V. Bulkeley (Eidg. temp. Hardw. 279) . . ... 698 
 
 Gale V. Gale (6 Ch. D. 144; 46 L. J. Ch. 809; 36 L. T. 690 ; 25 W. E. 772) . . 147 
 
 Galmoyei;. Cowan (58 L. .1. Ch. 769) . .... . 426 
 
 Gamhier v. Gambler (7 Sim. 263) . 610 
 
 Gandy v. Gandy (7 P. D. 168 ; 51 L. J. P. & D. 41 ; 46 h. T. 607 ; 30 W. E. 673) 
 
 163, 165, 441, 448 
 Gardiner, Re, Ex parte Coulson (20 Q. B. D. 249; 57 L. J. Q. B. 149 ; 53 L. T. 119 ; 36 
 
 ^- K- 142) ... . 319, 335, 433 
 
 Gardiner v. Slater (25 Beav. 509) ... q_ 728 ■ 
 
 Gardner, Re, Long r. Gardner (67 L. T. 552 ; 41 W. E. 203) . . 713 
 
 Gardner v. Att.-Gen. (60 L. T. 839) . . 107^ ^60 
 
 Gardner v. Blane (i Ha. 381) . ... . 663, 694 
 
 Gardner v. Gardner (i Gifl. 126) . . . . onn 
 
 Gardner i\ Gardner (2 App. Cas. 723) .... . . . . .-g 
 
 Gardner v. Gardner (60 L. T. 39) . .... 31, 296, 460, 488 
 
 Gardner v. Grace (i F. & 1<^. 359) _ ^ g j. 
 
 Gardner v. Slade (13 Q. B. 801 ; 18 L. J. Q. B. 334 ; 13 Jur. 826) 
 
 Gardner v. Tapling, (33 W. E. 473) 
 
 Gardner Peerage Claim, Re (cited 5 CI, & F. 264 ; Le Marchant) 
 
 Garlorth v. Bradley (2 Ves. Sen. 677) 
 
 Garmstone v. Gaunt (i Coll. 557) 
 
 Games, Re, GaTnes v. Applin (31 Ch. D. 147; 55 L, .1. Ch. 303 ; 54 L. T. 141 ; 34 W. 
 
 E. 127) 
 
 852 
 817 
 
 483 
 125 
 681 
 
 714 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 PAGE 
 
 •Gavnett, Re (20 W. E. 222) . . rag 
 
 Garnett, Re, Kobinson i\ Gandy (33 Cli. D. 300 ; 55 L. J. Vh. 773; 55 L. T. 562) 138 
 
 ■Garrett v. Noble (6 Sim. 504) . . 689 
 
 <3arth v. Cotton (i Ves. Sen. 524 ; i Dick. 183) . . 682 
 
 Gartbsboi-e r. Chalie (10 Ves. i) . . . .238 
 
 Gascoigue, i?e, ife Lceming- (20 L. ,1. Ch. 550) . . 693 
 
 Gaston i\ Frankum (a Be G. & Sui. 561) . . . 366 
 
 ■Gaters c. Madeley (4 Jnr. 724 ; 6 M. & \V. 423) . . . 198' 
 
 Goe r. Gee (12 W. R. 187) . . . . . . . . . 8i2 
 
 Genese, Re, Ex parte District Bank of London (16 Q. B. D, 700 ; 35 L. J. t'h. 118 ; 34 
 
 W. B. 79) . . . ... . . , . 297, 299 
 
 •George, Re, (An Intant), (5 Ch. D. 837) ... . . . 639, 643 
 
 George »-. The Bank ol England (7 Price, 646) . 294 
 
 George and Eicbard, The (L. E. 3 A. & E. 466 ; 24 L. T. 717 ; 20 W. E. 245) . 563 
 
 Giacometti c. Prodgers (L. E. 8 Ch. 338, 28 L. T. 432 ; 21 W. E. 375) . . . .213 
 Gibblns c. Eyden (L. E. 7 Eq. 371 ; 38 L. J. (b. 377 ; 20 L. T. 516 ; 17 W. E. 481) . 216 
 
 Glbbs i: Grady (41 L. .T. Ch. 163) ; 20 W. E. 257) 147, 149. 152 
 
 Gibbs i: Harding; (L. E. 4 Eq. 490 ; L. K. 5 1 h. App. 336 ; 39 L. J. Ch. 374 ; 18 W. E. 
 
 361) . . . . . . . . 436, 440 
 
 Gibson f. Carrutbers (8 M. & W. 343) . . . . 864 
 
 ■Gibson i-. Dickie (2 M. & S. 463) .... 577 
 
 ■Gibson r. Way, Ue Currey (32 Ch. D. 361 ; 55 L. J. Ch. 906 ; 54 L. T. 665 ; 34 W. B. 
 
 541) . . . . 136, 384, 386 
 
 ■Gifford f. KoUock (3 Ware, 45 (Amer. 1 ) . ■ 533 
 
 Giflord's Divorce Bill (12 App. Cas. 362) . . 60 
 
 Gilbert v. Lewis (i De.G. J. & Sm. 38) . 347 
 
 •Gilbert r. Schwenck (14 M. & W. 488) . . . 585, 600, 755 
 
 Gilchrist v. Cator (11 J>ir. 448 ; 1 De G. and Sm. 188) . . 2it 
 
 Gilchrist i: Herbert (26 L. T. 381 ; 20 \V. E. 384) . . . .146 
 
 Giles, Re (70 L. T. 757) .... 191 
 
 GiU, £a:^rtr«e (I Bing. N. C. 168) . . 191 
 
 -GiUett ,'. Gillett (14 P. D. 158 ; 58 L. J. 1'. 54 ; 61 L. T. 401 ; 38 W. 1!. 144) . . 354 
 •Gilliat I'. Gilliat and Hatfield (3 Phil. Eccl. 222; . ... 597 
 
 Gilmonr, .Ein parte (3 C. 15. 967) ... . . 191 
 
 Gisborne i: Gisborne (23 W. E. 410) . . 650 
 
 •Gladney v. Murphy (26 L. E. Ir. 651J . . . 562 
 
 Gladstone c. Gladstone (i P. D. 442 ; 45 L. .J. 1'. 82 ; 35 L. T. 380 ; 24 W. E. 737) 163 
 
 GlanylU, Re, Ellis v. Johnson (31 Ch. D. 532 ; 55 L. J. Ch. 325 ; 54 L. T. 411 ; 34 W. 
 
 E. 309) . . . . . . 287, 332, 380, 393, 426 
 
 Glenister v. Harding, Re Turner (29 Ch. D. 985 ; 53 L. T. 528) . . 567, 820 
 
 Glenorchy, Lord, i. Bosville (Ca. t. Talb. 3 ; i Wh. & T. L. C. 1) . 127 
 
 Gloucestershire Banking Coy. r. Phillipps (Creagh Third Part} 1, (12 Q. li. D. 533) 
 
 265. 337. 429 
 ■Glover, J^a: parte (■4 Dowl. 291) ... . 588 
 
 Glover, Ex parte (i Mont. & Gr. Dig. Bkt. Laws, 178) . 864 
 
 Glover jj. Barlow (21 Ch. D. 788 «;■ ... . 666,681 
 
 Godfrey, Re, Thorne r. Godfrey (63 L. J. Ch. 854 ; 71 L. T. 56B) . . 392 
 
 Godfrey v. Bryan, Rr Bryan (14 Ch. D. 516 ; 49 L. J. Ch. 504 ; 28 W. E. 761) . 187 
 
 Godfrey r. Harben, Be Harvey's Estate (13 <'h. D. 216 ; 49 L. J. Ch. 3; 28 \V. E. 73) . 395 
 Golden r. Gillam, Re .Johnson (51 L. J. Ch. 503 ; 20 ( h. D. 389 ; 46 L. T. 222) 155, 157, 158 
 Golds <-•. Kerr (W. N. Feb. 23, 1884, p. 46) . -812 
 
 Goldsmid i'. Bromer (i Hag. Con. E. 324) . . . 104, 463 
 
 Goldsworthy, Re (2 Q. B. D. 75 ; 46 L. .J. Q. B. 187) . 498, 502, 303, 504, 508, 616 
 
 Gompertz v. Kensit (L. E. 13 Eq. 369 ; 41 L. J. Ch. 382 ; 26 L. T. 95 ; 20 W. E. 313) 91 
 Gooch, Re, Gooch v. Gooch (62 L. T. 384) . . . 545 
 
 Gooch's Case (L. E. 8 Ch. App. 266 ; 42 L. .1. Ch. 381 ; 28 L. T. 148 ; 21 W. E. 181) 742, 764 
 GoodaU V. Harris (2 P. Wms. 561; . ... ... 619 
 
 Goodchild n. Dougal (3 Ch. D. 650 ; 24 W. U. 960) . . . 191,192,281,325 
 
 Goode V. Harrison (5 B. & Aid. 147J . . 713, 740, 760, 765, 766, 767, 768 
 
 Goodman v. Bennett (3 C. & P. 167; . . .... 883 
 
 Goodman c. Goodman (28 L. J. Ch. 745 ; 33 L. T. O. S. 70 ; 5 Jur. X.S. 902) . 104, 485 
 
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xl TABLE OF OASES. 
 
 I'AGE 
 
 Goodman's Trusts, Tfe (17 Cli. 1 >. 266 ; 50 L. J. Cli. 425 ; 44 L. T. 527 ; 29 W. E. 586) 
 
 79, 476, 484, 485, 487, 508 
 
 Goodrig-ht v. Moss (Cowp. 591) ^^ 
 
 Gordon v. Irwin (4 B.'P. C. 355) • ' ' ' afifi 
 
 Gordon v. Potter (i F. & F. 644) . • .... 833, 866 
 
 Gordon v. Kelt (18 L. J. Ex. 432 ; 4 Excli. 365) . . ■ . . 886 
 
 Gordon v. Silber (25 Q. B. D. 491 ; 59 L. J. (i. B. 507 ; 63 L. T, 283 : 39 W. K. iii) . 180 
 Gore 1:. Gibson (13 M. & W. 623) . , • 69, 78 
 
 Gore V. Hawsey (3 F. & F. 509) • • ■ 577 
 
 Gore V. Knight (2 Vern. 535) . . • -348 
 
 Gorges v. Chancy (cited 2 Ch. Cas. 117; ■ • 342 
 
 Goruall, JJe (I Beay. 347) ' • • 495. 597. 606, 625 
 
 Gotchw. Foster (L. E. 5 Eq. 311) . . ■ • 639 
 
 Gough r. Findon (7 Exch. 48) . . ■ • ^'^4 
 
 Govier v. Hancock (6 T. E. 603) • S^^ 
 
 Grace, Ex paHe (i B. & P. 376) . . ■ 739 
 
 Grafltey r. Humpage (I Beav. 46 ; 3Jur. 622) ■ ^38 
 
 Graham, 7te (L. E. 10 Eq. 530; 45 L. J. Ch. 724) .782 
 
 Graham ?-. Graham (L. E. i P. & D. 711 ; 20 L. T. 500 ; 17 W. E. 628) . • 163 
 
 Graham v. Lord Londonderry (3 Atk. 393) ... ... 406, 407, 408 
 
 Graham v. Wickham (i De G. J. & .s. 474) . • .146 
 
 Graham's Trusts, /.'<• (20 V,'. R. 289) ... ... 348 
 
 Grange v. Sturdy, Jie Hazeldine (31 €h. D. 511 ; 54 L. T. 322 ; 34 AV. K. 327) . . 570 
 Grant v. Budd (30 L. T. 319) ...... 443 
 
 Grant v. Grant (34 L. J. Ch. 641 ; 13 W. R. 1057 ; 34 Bear. 623-) 293, 399, 407 
 
 Gratland v. Freeman (3 Esp. 85) . . . . 880 
 
 Gray v. Bell (45 L.T. 521 ; 30 VV, K. 606) . . 73° 
 
 Gray v. Cookson (16 East, 13) 7^8, 850 
 
 Gray r. Gray (23 L. E. (Ir.) 399) .... 9 
 
 Greaves v. Greayes (L. K. 2 P. .& D. 432 ; 41 L. .J. P. M. & A. 66 ; 26 L. T. 745 : 20 
 
 W. K. 802) . . . . 93. 97 
 
 Greedy v. Lavender (13 B^av. 62) . . . 214 
 
 Green v. Belcher (i Atk. 507) . . . 639 
 
 Green ■!•. Dalton (i Add. 289) . . 93 
 
 Green v. Green (5 Ha. 400 ») 401. 402 
 
 Green v. Green ([1893] P. 89 ; 62 L. J. P. 112 ; 68 L. T. 261 ; 41 W. E. 591) . 83, 468 
 Green v. Paterson (32 Ch. D. 95 ; 56 L. J. Cli. 181 ; 54 L. T. 738 ; 34 ^V. E. 724) . 148, 160 
 
 Green v. Pigot (i Bro. C. C. 103) . . 692, 693 
 
 Greenhill r. North British & Mercantile Insurance Co. ([1893] 3 Ch. 474 ; 62 L. J. Oh. 
 
 918 ; 69 L. T. 526 ; 42 W. E. 91) . . . . . 205 
 
 Greenland v. Chaplin (19 L. J. Ex. 293) 882 
 
 Gregory v. Molesworth (3 Atk. 626) . . 729. 731 
 
 Gregory v. Piper (9 B. & C. 591 ; 4 jr. >t E. 500) . 884 
 
 Gregory's Case, Anne (4 Burr. 1991) . , . ... 170' 
 
 Greenwood, Re, Greenwood v. Greenwood ([1S92] 2 Ch. 295 ; 61 L. J. Ch. 558 ; 67 L. T. 
 
 76 ; 40 "W. E. 681) . . 229 
 
 Grey v. Grey (i Ch. Cas. 296; 2 Swanst. 594, Appdx. ; Finch, 338) . . . 544 
 
 Grey's Settlements, Re, Acason v. Greenwood (34 Ch. D. 712 ; 56 L. J. Ch. 511 ; 56 L. T. 
 
 35° ; 35 W-. E. 560) ..... 378 
 
 Grey's Trusts, Re, Grey i>. Earl of Stamford ([1892] 3 Ch. 88 ; 6i L. J. Ch. 622 ; 41 W. E. 
 
 60 ... . . 485, 568 
 
 Griffin v. Langfield (3 Camp. 254) .... .... 734 
 
 Griffiths (Infants), Re (29 Ch. D. 248 ; 54 L. J. Ch. 742 ; 53 L. T, 262 ; 33 yv. E. 728) 672 
 Griffiths V. Earl of Dudley (9 Q. B. U. 357 ; 51 L. J. Q. B. 543 ; 47 L. T. 10 ; 30 W. E. 
 
 797) • .172 
 
 Griffith V. Evans (47 L. T. 417) . . . 576 
 
 Griffiths V. Gale (13 L. J. Ch. 286 ; 8 .lur. 235 ; 12 Sim. 327) . . 554 
 Griffiths I'. London & St. Katherine Dock Co. (13 Q. B. D. 259 ; 53 L. J. Q. B. 504 ; 50 
 
 L. T- 755 ! 32 W. E. 831) . . . . 871, 873 
 
 Griffiths V. Teetgen (15 C. B. 344) . jgi 
 
 Grigby v. Cox (i Yes. Sen. 517) . . 36^ 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 xli 
 
 Grigg-s r. Gibson (14 AV. K. 538) ... 
 
 Grimes, kx parte (22 L. J. M. C. 153; S. C. 17 Jur. 554) 
 
 Grimstone, Ex parte (Amb. 707) . . 
 
 GrindeU v. Godmond (5 A. & E. 755 ; i N. & 1". 168 ; S. C. 2 H. & W, 339) . 
 
 Grinham !•. Witley (4 H. & N. 496 j ,28 L. J. E.x. 242 ; 5 Jur. X. S. 444) 
 
 Grinnell r. Wells (7 U. & G. 1033) .... . . 557, 558, 
 
 Grissell, Re, Er parte Jones (12 Cb. D. 484; 48 L. J. Bk. 109 ; 40 L. T..790 ; 28 ^Y. 
 
 287) ... . .... 
 
 Gross, lie, Ex parte Kingston (L. E. 6 Ch. App. 632 ; 19 W. K. 910) . 
 
 Grove, Re, Vaucber 1. Solicitor to tbe Treasury {40 Ch. D. 216 ; 58 L. J. Ch. 57 ; 
 
 L. T. 587; 37 W. K. I) .... 
 
 GroTe r. Comyn (h. K. 18 Bq. 387 ; 22 W. E. 723') 
 Grove v. Price (26 Beav. 105) . . . . 
 
 Groves i'. Groves (3 To. & Jer. 163) 
 
 Grylls r. Davies (2 B. & Ad. 514) 
 
 Gulliver r. Gulliver (2 Jnr. X. S. 700) . 
 Gundry r. Baynard (2 Yern. 278) ... 
 Gnnston !■. Maynard (L. T. Jour. June 2, 1883, p. 102) 
 
 Gurly V. Gurly (8 CI. & F. 743) 
 
 Gumey v. Gurney (8 L. T. 380) . . . ... 
 
 Gutbrie r. Walrond (22 Ch. D. 573 ; 52 L. J. Cb. 165) . 
 
 Guy r. Burgess (i Smith, 117) 
 
 Gwilliam r. Twist ([1894] 1 Q. B. 567; [1895] 2 Q. B. 84; 64 L 
 
 S79; 43W. R. 566) . . ... 
 
 Gylbert c. Fletcher (Cro. Car. 179) 
 
 56 L. J. Q. B. 69 ; 56 L. 'J 
 Sc A. 21 ; 30 L. T. 0. S. 376 
 
 PACK 
 651, 680 
 
 • 613 
 
 316 
 
 • 899 
 
 560, 562 
 
 3IS 
 
 . 689 
 
 59 
 
 485, s68 
 667 
 
 652' 
 
 • 295 
 . 869 
 
 • 145 
 . 728 
 
 • 337 
 
 • 239 
 
 • 483 
 . 638' 
 . 766 
 
 Q. B. 474 ; 72 L. T. 
 
 716) 
 
 7.S4. 
 
 882 
 756, 842 
 
 R. 99) 
 
 H. V. P. (L. R. 3 P. & D. 126) 
 Haddon r. Haddon (18 Q. B. D. 778 
 Haddon v. Fladgate (27 L. J. P. M. 
 
 & Tr. 48) 
 
 Hadley r. Reynolds (cited i Curt. 39) 
 
 Hadow r. Hadow (9 Sim. 438) 
 
 Hagell r. Currie (L. R. 2 Cb. App. 449 ; 36 L. J. Cb. 448 ; 16 L. T 
 
 Haigh, Re (26 L. J. C. P. 209 ; 3 Jur. N. S. 371 ; 2 C. B. N. S. 198 
 
 Haines v. Guthrie (13 Q. B. D. 818; 53 L. J. Q. B. 521 ; 51 L. T. 645 ; 33 W 
 
 Hakewill, Re (12 C. B. 223) . . 
 
 Haldane r. Ecklord (W. N. 1879, p. 80) . . . . 
 
 Hale V. Sheldrake (60 L. T. 292) . ... ... 
 
 Haley v. Bannister (4 Madd. 280) . 
 
 Halford r. Kymer (10 B. & C. 724) . . . . . 
 
 Hallr. Hall(3Atk. 721) .... . . . 
 
 Hill (I Con. & Law, 135 ; i Dr. & W. 109) 
 
 Hollander (4 B. & C. 660; 7 D. & R. 133-) ... 
 
 Jones (i Sim. 41) 
 
 Potter (Show. P. C. 76) . . . . . . 
 
 Storer (i Y. & C. Ex. 556) ... . . . 
 
 HaU V. Waterbouse (13 W. R. 633; 11 Jur. S". S. 361 ; 5 Gift. 64) 
 Hall r. Wright (29 L. J. Q. B. 43 ; El. Bl. & El. 765) . 
 
 Hall's Estate, Re (L. R. 9 Eq. 179 ; 30 L. J. Cb. 392) 
 
 Hallett, Re, Hasting-s i-. Hallett (35 Cb. D. 94 ; 56 L. J. Cb. 631 ; 57 h. T. 126 ; 
 
 584) 
 
 Halley, Tbe (L. R. 2 P. & D. 193 ; 37 L. J. P. M. & A. 33 ; 18 L. T. 879 ; 16 W. R. 998) 881 
 HalUday r. Atkinson (5 B. & C. 501) . . . . 726 
 
 HaUiday's Estate, Re (17 Jur. 56) i . S°4' S°7 
 
 Halllday's Settled Estates, Re (L. R. 12 Eq. 199 ; 40 L. J. Ch. 687 ; 19 W. R. 966) . 193 
 
 Halliwell r. ConnscU (38 L. T. 176) .... 849 
 
 Halsey v. Halsey (9 Ves. 471) ... . 792 
 
 Ham V. Toovey (Selw. N. P. 268) 311 
 
 Hamilton (Infants), Re (31 Cb. D. 291 ; 55 L. J. Ch. 282; 53 L. T. 840; 34 W. R. 203) 651 
 Hamilton f. Hamilton ([1892] i Ch. 396 ; 61 L. .7. Cb. 220; 66L. T. 112; 40 W .R. 312) 775, 776 
 Hamilton v. Hamilton (i Bell's Appeals, 736) 32 
 
 HaU !• 
 Hall?- 
 HaU !• 
 Hall V 
 HaU i- 
 
 64 
 353 
 6 W. E. 456 ; I Sw. 
 
 369. 371 
 • 91 
 . 642 
 307 ; 15 W. R. 605) 691 
 191 
 820 
 496 
 . 818 
 296, 387, 424 
 . 256, 650 
 
 ■ 534 
 
 6i8, 634 
 
 . 200 
 
 557, 558. 862 
 
 585, 607, 623 
 
 . 606 
 
 . 363. 36S 
 
 118 
 
 . 220 
 
 35 W- K. 
 
 264, 288, 431 
 
 Digitized by Microsoft® 
 
xlii 
 
 TABLE OF CASES. 
 
 146J 
 
 Hamilton v. Hector (L. K. 13 Eq. S" ; 25 h. T 
 
 Hamilton v. Mohun (2 Vern. 652) . 
 
 Hamilton v. Vaiighan— Sherrin Electrical Engineering- Co. ([ 
 
 Ch. 795 ; 71 L. T. 325 ; 43 W. E. 126) 
 Hamilton v. Wrigtt (9 CI. & Fin. iii) . 
 
 Hamley i\ Gilbert (Jac. 354) 
 
 Hammersley J). De Biel (12 CI. & F. 45) . 
 
 Hammond «. Hammond (19 Bcav. 29; 2 Eq. Kep. 119) ^ 
 
 Hammond v. Pulsford ([1895] i Q. B. 223 ; 64 L. J. M. C. 63 ; 71 L. T. 767; 43 » • • 
 
 236) 
 
 Hampton i: Eickard (43 L. J. M. C. 133 ; 30 L. T. 636) 
 
 Hance v. Burnett (45 J. P. 54) . . • - 
 
 Hance v. Harding (20 Q. B. D. 732 : 57 L. J. Ch. 403; 59 L. T. 659 : 36 «'• E. 629) 
 
 PAGE 
 
 . 437. S°9 
 
 ■ 493 
 1894] 3 Ch. 589 ; 63 L. J. 
 
 741, 768 
 
 ■ 659 
 
 ■ 642 
 127, 144, 145. iS°> 152 
 
 • 134 
 
 805 
 581 
 521 
 
 Hanchett v. Briscoe (22 Beav. 496) . . • • 
 Hancock v. Hancock (38 Ch. D. 78 ; 57 L. J. Ch. 396 ; 
 
 724 
 514 
 514 
 749 
 321 
 638 
 210 
 
 129, 162 
 386 
 58 L. T. 906 ; 36 "VV. E. 417) 
 
 123, 136, 379 
 
 Hancock v. Peaty (L. E. i P. & D. 335 ; 36 L. J. P. M. & A. 57) . . • • 7^, 77 
 Hancocks v. Lablache (3 C. P. D. 197 ; 47 L. J. C. P. 514 : 38 L. T. 753 : 26 W. E. 402) 259, 429 
 
 Handcock, r. (17 Ves. 383) _ . . • 
 
 Handford v. Handford (63 L. T. 256) 
 
 Handley v. Handley ([1891] P. 124 ; 63 L. T. 535 ; 39 AV. E. 97) 
 
 Hands v. Slaney (8 T. E. 578) .... 
 
 Hanson r. Blackwell (4 Ha. 434) .... 
 
 Hanson v. Graham (6 Ves. 239) ... 
 
 Hanson v. Keating; (8 Jnr. 949 ; 4 Ha. i) ... 
 
 HarWdge v. Wogan (5 Ha. 258) ... 150 
 
 Harbin r. Darby (2 L. T. 531 ; 8 W, E. 512 ; 28 Bcav. 325) . • 7°i 
 
 Hardey r. Green (12 Beav. 182) r ■ ^^39 
 
 Hardie v. Grant (8 C. & P. 512) .... ... . . 3" 
 
 Harding, In the Goods of (L. E. 2 P. & D. 394 ; 41 L. J. P. M. & A. 65 ; 26 I 
 20 W. E. 615) • • 
 
 Harding- v. Barker (37 W. E. 78) . . 
 
 Harding v. Greening (8 Taunt. 42 ; i Moore, 477 ; Holt, 531) 
 
 Harding v. Harding (11 P. D. m ; 55 L. .T. P. 59) 
 
 Harding v. Sutton (59 L. T. 838) 
 
 Hardy i: Atherton (7 Q. B. D. 264 ; 51 L. J. M. C. 105 ; 44 L. T. 776 ; 29 W. E. 
 
 Hardy !•. Hardy (17 Ch. D. 798 ; 50 L. J. Ch. 241 ; 44 L. T. 49 ; 29 W. E. 834) . 
 
 Hargreaves r. Hopper (i C. P. D. 195 ; 45 L. J. C. P. 105 ; 33 L. T. 530) 
 
 Harlo r. .Jarman ([1895] 2 Ch. 419; 64 L. J. Cli. 779; 73 L. T. 20; 43 W. E. 618) 
 
 .788) 
 
 Harris c, Butler {2 31. & \V. 539) . 
 Harris i: Hamlyn (3 De G. & S. 470) 
 Harris v. Harris (63 L. T. 262) 
 Harris v. Lee (i P. Wms. 438) 
 
 Harris v. Lloyd (T. & E. 310) 
 
 Harris v. 3Iorris (4 Esp. 41) 
 
 Harris i: Pepperell (I,, E. 5 Eq. i ; 17 L. T. 191) . 
 
 Harris i: Wall (i Exch. 122) .... 
 
 Harford u. Morris (2 Hag. Con. E. 423) 
 Hargrave v. Hargrave, (10 Jul'. 957 ; 9 Beav. 552) . 
 Hargrave v. Le Breton (4 Burr. 2423) 
 Harris' Settled Estates, Jie (28 Ch. D. 171 ; -54 L. J, 
 393) ... .... 
 
 Harrison Be, Harrison i'. Higson ([1894] i Ch. 561 ; 
 Harrison Jle, Me Little's Will (36 Ch. D. 701 ; 56 L. 
 
 T. 668 ; 
 
 . 197. 233 
 «86 
 882 
 45t 
 371 
 576 
 295 
 714 
 205, 389 
 . 562 
 817 
 
 • 513 
 
 • 31S 
 
 ■ 569 
 313 
 151 
 
 ■ 759 
 71, 106,789 
 
 483. 566 
 855 
 W. E. 
 
 . 192 
 
 63 L. J. Ch. 385 ; 70 L. T. 868) . 571 
 .1. Ch. 872; 57 L. T. 583) 
 
 69. 
 
 Ch. 208 ; 51 L. T. 855 ; 33 
 
 Harrison r. Andrews (13 L. .1 . Ch. 243 ; 13 Sim. 595) 
 
 Harrison c. Bush (5 E. & Bl. 344) 
 
 Harrison v. Cage (i Lord Eaym. 386) 
 
 Harrison v. Fane (i M. & G. 550) .... 
 
 Harrison v. Goodall (Kay, 310 ») . 
 
 Harrison v. Hall (i M. & Eob. 135) 
 
 385> 387 
 . 200 
 
 851, 852 
 • 114 
 . 747 
 
 499. 797 
 312 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 xliii 
 
 749 
 200 
 217 
 819 
 540 
 395 
 
 PAGB 
 
 Harrison r. Harrison (4 Moo. P. C. 96) . . 64, 65 
 
 Harrison v. Harrison (12 P. D. 130; 56 L. J. P. 76 ; L. T. 119 ; 35 "W. K. 703) . 164 
 
 Harrison v. Hairison (5 Beav. 130) .... 813 
 
 Harrison v. Harrison (13 P. D. 180 ; 36 W. K. 748) . . 287, 290, 361, 382, 391, 430 
 Han-isou n. London and Nortli Western Railway Co. (1 Cab. & El. 540) . . .171 
 Harrison's Trusts, Me Harrison r. Harrison (28 Ch. D. 220 ; 54 L. J. Ch. 617 ; 52 L. T. 
 
 204 ; 33 W. E. 240) 684 
 
 Harmer i;. Cornelius, (28 L. J. C. P. 85 ; 5 C. B. N. S. 236) . . . 839 
 
 Harmer f. Killing (5 Esp. 102) . . , . 760 
 
 Harper v. LuHlcin (7 B. & C. 387) . . 559. 561 
 
 Harrington, Earl oi, < . Metropolitan Railway Co. (13 L. T. 658) . 686 
 
 Harrod v. Harrod (23 L. T. 243 ; 18 Jur. N. S. 853 ; i K. & J. 4) . . • 78 
 
 Harrop v. Howard (3 Ha. 624) 376 
 
 Hart r. Hart (18 Ch. D. 670 ; 50 L. J. Ch. 697 ; 45 L. T. 13 ; 30 "W. E. 8) . 291, 444 
 
 Hart i: Prater (i Jur. 623) 
 
 Hart V. Stephens (14 L. J. Q. B. 148 ; 9 Jur. 225 ; 6 Q. B. 957) 
 
 Hart's Estate He, (W. N. 1883, 164) 
 
 Hartley v. Wharton (4 Jur. 576 ; 11 Ad. & E. 394) 
 
 Hartopp 1'. Hartopp (17 Ves. 184) 
 
 Harvey, lie, Godfrey c. Harben (13 Ch. D. 216; 49 L. J.Ch. 3; 28 V,'. E. 73) 
 
 Harvey v. Ashley (3 Atk. 610) . . 146, 772, 776 
 
 Harvey v. Farnie (8 App. Cas 43 ; 52 L. J. P. D. & A. 33 ; 48 L. T. 273 ; 31 W. E. 433) 
 
 83, 458, 464, 466, 468, 469, 473 
 
 Harvey 11. Harvey (2 P. Wms. 22) 637,652 
 
 Harvey r. Johnston (17 L. J. C. P. 298) . . .... .114 
 
 Harvey's Estate, lie, Harvey r. Gillovv ([1893] i Ch. 567 ; 62 L. J. Ch. 328; 68 L. T. 562 ; 
 
 41 W. E. 293) . . . . 
 
 Haslam v. Cron, lie Olivant (19 W. E. 968) 
 
 Hastie i: Hastie (2 Ch. D. 304 ; 34 L. T. 747 ; 24 W. E. 564) . ... 
 
 Hastie's Trusts, lie (35 Ch. D.728 ; 57 L. J. Cb. 792 ; 57 L. T. 168 ; 35 W. E. 692I 
 Hastings v. Hallett, Jle Hallett (35 Ch. D. 94: 56 L,. J. Ch. 631 ; 57 L. T. 126 ; 35 W. E. 
 
 584) • 264,288,359,367,431 
 
 Hastings f.Ordc (II Sim. 205) . 776 
 
 Haswell v. Haswell (51 L. J. P. D. & A. 15 ; 30 W. E. 231) . . -97 
 
 Hatch V. Hatch (9 Ves. 297) . . 584, 706, 707 
 
 Hatcher, Ex parte, lie West oi England Bank, (12 Ch. D. 284 ; 48 L. J. Ch. 723 ; 41 L. 
 
 T. 181 ; 27 W. K. 907) .... . . 262, 265, 266 
 
 Hatfield v. Minet (8 Ch. D. 136 ; 47 L. J. Ch. 612 ; 38 L. T. 629; 26 W. E. 701) . 544 
 
 Havelock i: Havelock, lie Allan (17 Ch. D. 807 ; 50 L. J. Ch. 778 ; 44 L. T. 168 ; 29 
 
 W. E. 859) . . . • . . 648, 650 
 
 Hawes, lie, Burchell v. Hawes (62 L. J. Ch. 463 ; 67 L. T. 75 ; 41 \V. E. 173) 
 
 Hawke v. Corri (2 Hag. Con. E. 280) 
 
 Hawkes v. Hubback (L. E. 4 Eq. 5 ; 40 L. J. Ch. 49 ; 22 L. T. 642 ; 19 W. E. 117) 
 Hawksworth v. Hawksworth (L. E. 6 Ch. App. 539 ; 40 L. J. Ch. 534; 25 L. T. 115 
 
 554 
 476 
 146 
 571 
 
 296 
 97.448 
 349. 376 
 19 
 
 Tr. 460) 
 
 523. S24> 526, 527, 634 
 
 • 576 
 654 
 
 • 330 
 
 34 W. K. 327) 
 
 W. E. 735) 
 
 Haycock, Exparte, (5 Euss. 154) . 
 
 Hayes, Ex parte, (3 De G. J. & S. 485) . 
 
 Haynes v. Mathews, (34 L. T. O. S. 60 ; 8 W. E. 76 ; i Sw. 
 
 Haywood i: Tidy (63 L. T. 679) . . . . 
 
 Hazard e. Treadwell (i Swa. 506) . ... 
 
 Hazeldine, lie. Grange i\ Sturdy (31 Cli. D. 511 ; 54 L. T. 322 
 
 Head v. Briscoe (5 C. & P. 484) . ' . 
 
 Heap V. Tonge (9 Ha. 104) 
 
 Heard r. Stamford (3 P. Wms. 409) 
 
 Hearle i>. Greenbank (3 Atk. 695) .... 
 
 Heath v. Heap (26 L. J. M. C. 49 ; i H. & N. 478) 
 
 Heath v. Perry (3 Atk. loi) 
 
 Heath v. Wilson (9 C. & P. 607 ; 2 M. & E. 181) . 
 Heatley v, Thomas (15 Ves. 596) .... 
 Hebblethwaite v. Hebblethwalte (L. R. 2 P. & D. 29 ; 39 L. J. P. M. & A. 15 ; 21 L. T 
 
 732) ........ ... 
 
 773 
 
 • 877 
 
 • 570 
 269, 272, 333 
 
 I4S 
 258, 429 
 
 217. 373' 639. 711. 714. 7^7 
 
 255 
 
 639 
 
 . . . 883 
 
 . 280 
 
 246 
 
 Digitized by Microsoft® 
 
xliv 
 
 TABLE OF CASES. 
 
 PAGE 
 . 562; 
 
 . 752. 865 
 35 W. 
 
 . 356, 380^ 
 . 610, 691 
 
 . 125. 749 
 319 
 
 44: 
 
 ,3 ; SS L- J- Cli. 283 ; S3 L. T. 840 ; 34 W. K. 
 
 878 
 157 
 
 644. 
 
 318 
 
 7°5' 
 251 
 728 
 154 
 
 641 
 
 Hedges V. Tagg (L. E. 7 Ex. 283 ; 41 L. J. Ex. 169) 
 
 Hedgeley t'. Holt (4 C. & P. 104) . . . • 
 
 Hedgely, JRe, Small v. Hedgely (34 Ch. D. 379 ; 56 L. J. Ch. 726 ; 56 L. T. 850 
 
 E. S14) 
 
 Hellman's Will, lie (L. K, 2 Eq. 363 ; 14 W. R. 682) . 
 Helps V. Clayton (10 Jur. N. S. 1184 ; 17 C. B. N. S. 553) 
 Helsbj', lie, Ex parte Helsby (63 L. .). Q. B. 261 ; 69 L. T. 864) . 
 
 Helyar v. Hawke (5 Esp. 72) . . ' ' 
 
 Hemingway t'. Braithwaitc (61 L. T. 224; .... 
 
 Hemmings r. MuncWcy (i Bro. C. C. 303) . . ■ ' ' '. 
 
 Henderson-Koe v. Hltcliins, Me Smith (42 Cli. D. 302 ; 58 L. J. Cli, 860 ; 61 L. T.'363 
 
 37 W. E. 705) 
 Heneage, Be, Ex parte Holland (L. E. 9 Ch. App. 307 ; 43 L. J. Ch. 85 ; 30 L. T. 106 
 
 22 W. E. 425) 
 
 Henley v. (2 Ch. Cas. 245) 
 
 Henley v. Phillips (2 Atk. 49) 
 Henry v. Archibald (5 Ir. Eep. Eq. 559) 
 Henry v. Armstrong (44 L. T. 918) 
 Henry v. Strong, Re Coleman (39 Ch. D. 
 
 203) 
 
 Heustcad v. The Phoenix Gaslight & Coke Co. (34 L. J. Ex. 108 ; 12 L. T. 313 ; 3 H. & C. 
 
 745)" • ■ ■ .*'° 
 
 Henty r. Wrey (21 Ch. D. 332 ; 47 L. T. 231 ; 30 W. E. 850 1 S4S. 54°. 547 
 
 Herbert v. Herbert (2 Hag. Con. Eep. 263) • 46° 
 
 Herbert v. Turball (Keb. 589) ... ■ ..713 
 
 Herbert v. AYebster (15 Ch. D. 610 ; 49 L. J. Ch. 620) . • • 208, 
 
 Herbert's Case (3 P. Wms. ii5) . . . . 89, 789 
 
 Hernando, Ite, Hernando v. Sawtell (27 Ch. D. 284; 53 L. J. Cli. 865 ; 51 L. T. 117 
 
 33 ^\'. E. 252) ..... 
 Hervey t\ Aston (i Atk. 361) . . • . ... 
 
 Hervey r. DesbouTerio (Cas. t. Talb. 130) 
 Hesketh v. Cowing {5 Esp. 131) 
 Hotherington v. Graham (6 Bing. 135 ; 3 M. 
 Hetherington v. Hetherington (12 P. D. 112 
 Hewat's Divorce Bill (12 App. Cas. 301) 
 Hewett, Me, Hewett v. HaUett ([1894] i Ch. 362 ; 63 L. J. Ch. 182 ; 70 L. T. 393 ; 42 
 
 W. E. 233) ■ • 134 
 
 Hewett, Be, Ex parte Levene ([1895] i Q. B. 328 ; 64 L. J. Q. B. 185 ; 72 L. T. 60 ; 43 
 
 W. E. 237) 291, 335, 336. 
 
 Hewison v. Negus (22 L. J. Ch. 655 ; 21 L. T. O. ,S. 253 : t w. E. 262 ; 17 Jur. 567 ; 16 
 
 Beav. 594) ... . . . 129, 159, i68, 291 
 
 Heysham r. Heysham (i Cox, Eq. Cas. 179) . . 494, 605 
 
 Hickey v. Campion (6 Ir. C. L. 557 ; 20 W. E. 752) . . 114. "S 
 
 Hicks V. Gregory (19 L. ,T. C. P. 81 ; 13 Jur. 1030; 8 0. B. 378) . 578 
 
 Hicks V. Hicks {3 Atk. 274) . . ... 693; 696 
 
 Hide's Case, Bridget (3 Salk. 178) . . ... . .631 
 
 Hlggiubottom v. Holme (19 Ves. 88') . . 140 
 
 Higgins V. Butcher (Yelv. 89) ... 562. 
 
 Higginson v. Hall (10 Ch. D. 235 ; 48 L. J. Ch. 250; 39 L. T. 603) . . .811 
 
 Hlgginson i;. Kelly (I B. & B. 253) 151 
 
 Hill V. Chapman (2 Bro. C. C. 612) . . 
 
 Hill V. Cooper ([1893] 2 Ch. 85 ; 62 L. J. Q. B. 423 ; 69 L. T. 216 ; 41 ^X. E. 500) 
 Hill V. Crook (L. E. 6 H. L. 265 ; 42 L. J. Ch. 702 ; 22 V,'. E. 137) 
 Hill V. Gomme (8 L. J. Ch. 350 ; i BCitv. 540) 
 
 Hill 1). Good CVaugh. 302) 
 
 Hill r. Grant, Be Dickson (29 Ch. D. 331 ; 54 L. J. Cli. 5 10 
 
 143 
 
 9 
 
 . 728 
 
 • 577 
 
 fe P. 309) 230. 
 
 S7L.J. P. 78; S7L.T. 533; 36\V. E. 12) 353 
 478,567 
 
 Hill V. Hill (31 L. J. Ch. 505 ; 8 Jur. N. S. 609) 
 
 53°. 637 
 
 • 351 
 
 569. 570. 571- 
 
 495 
 
 7^ 
 
 52L. T.707; 35W.E.511) 
 
 641, 645: 
 526 
 
 Hill u. Schwarz, Ite Parkin ([1892] 3 Ch. 510 ; 62 L. J. Ch. 55 ; 67 L. T. 77 ; 41 W. E. 
 
 120) .... 
 Hillary, Be (2 Dr. & Sm. 461) 
 
 133. 397' 
 . 782. 
 
 Digitized by Microsoft® 
 
TABLE OP OASES. xlv 
 
 PAGE 
 
 Hillman, Ex parte, Ite Pumfiey (lo Cli. D. 622 ; 48 L. .7. Bk. 77 ; 40 L. T. 177 ; 27 W. 
 
 K-S67) 1U2 
 
 Hinohinbroke, Lord, v. Seymour (i B. C. C. 395) . . . . 545 
 
 Hind c. Whitmore (2 K. & J. 458) ... . . . 425, 809 
 
 Hindley c. Westmeath (6 B. & C. 200) . . . , . . 442 
 
 Hindmarsh i: Southgato (3 Kusa. 324) ... . . . 714 
 
 Hlne, In the Goods of iL. E. i P. & D. 388) . ... . 369 
 
 Hiscocks c. Jermonson (10 Q. B. D. 360; 52 I.. .1. JI. C. 42; 48!^. T. 225; 51 W. K. 
 
 656) • ... 504, 510, 618 
 
 Hisoox i: Greenwood (4 Esp. 174) ... 879 
 
 . 816 
 
 831 
 
 514 
 
 491) 428 
 
 445) 529 
 44S 
 
 • 538 
 
 • 357 
 794 
 
 Hitch i: Wells (8 Beav. 576) 
 
 Hitchcock c. Coter (6 A. & E. 438) . 
 
 Hitchlngs i: HitcWugs (67 L. T. 530) 
 
 Hoare i: Niblett ([1891] i Q. B. 781 ; 60 L. J. Q. B.-s65 ; 64 L. T. 659 ; 39 W. E. 
 
 Hobbs, Ite, Hobbs v. Wade (36 Ch. D. 553 ; 57 L. J. Ch. 184; 58 L. T. 9 ; 36 W. E 
 
 Hobbs i: Hull (i Cox, Eq. Cas. 445) ... . . 
 
 Hoblyn v. Hoblyn (41 Ch. D. 200 ; 60 L. T. 499 ; 38 W. E. 12) 
 
 Hobson, Re, Webster /■. Eickards (55 L. J. Ch. 300 ; 34 W. E. 195) 
 
 Hobson V. Feri'aby (2 Coll. 412) 
 
 Hobson 1: Sherwood (19 Beav. 575) . 694 
 
 Hochster r. De la Tour (22 L. .T. Q. B. 455 ; 17 Jur. 972 ; 2 El. & Bl. 678) . 862 
 
 Hodge's Ti-usts, Re (3 Jnr. N. S. 860 ; 3 K. & T. 313) . . . . 782 
 
 Hodgens r. Hodgens (4 CI. & Fin. 323) . 256, 7S9 
 
 Hodges, Re, Davey r. Ward (7 Ch. D. 754 ; 47 L. J. Ch. 335 ; 26 W. E. 390) . . 646 
 Hodges r. Hodges (20 Ch. D. 749 ; 51 L. J. Ch. 549 ; 46 L. T. 366 ; 30 W. K. 483) 
 
 386, 388, 395 
 
 522 
 
 31=. 313 
 
 140 
 
 4SS 
 638 
 
 8 W. E. 944) . 285, 2B8, 312 
 
 328 
 241 
 729 
 538 
 
 Hodges l: Hodges (Peake, Add. Ciis. 79) 
 
 Hodgklnson v. Fletcher (4 Camp. 70) 
 
 Hodgklnson p. Wllkle (i Hag. Con. E. 262) . 
 
 Hodgson, JExparte (19 A"cs. 206) , 
 
 Hodgson V. De Beauchesne (12 Moo. P. C. 285) 
 
 Hodgson V. Earl of Bective (i H. & M. 376) . 
 
 Hodgson i: Williamson (15 Ch. D. 87 ; 42 L. T. 676 : 
 
 Hodsden i: Lloyd (2 Bro. C. C. 534) 
 
 Hodsden v. Staple (2 T. E, 684) 
 
 Hoghton, Re (L. E. 18 Eq. 573 ; 22 W. E. 854) . 
 
 Hoghton c. Hoghton (21 L. J. Ch. 482 ; 15 Beav. 278) 
 
 Holder c. Soulby (29L. J. C. P. 246; 8C. B. N. S. 254) .... 886 
 
 Holland, Ex parte. Re Heneage (L. E. 9 Ch. Api). 307 ; 43 L. J. Ch. 85 ; 30 L. T. 106 ; 
 
 22 W. E. 425) . . . . 318 
 
 HoUoway v. AbeU (7 C. & P. 528) ... . . 561 
 
 Holloway r. Holloway (25 W. E. 575) .... ... 137 
 
 Holmes, Re, Hallows v. Holmes (67 L. T. 335) . ... 378 
 
 Holmes, Ex parte. Re Cook (10 Morr. Bank. Eep. 12) . . . ... 308 
 
 Holmes c. Blogg (8 Taunt. 35) .... .... 739, 741, 769 
 
 Holmes v. Brierley (59 L. T. 70) 116, 745, 762, 763 
 
 Holmes v. Clarke (31 L. J. Ex. 356 ; 7 H. & N. 93) 872 
 
 Holmes v. ilather (L. E. 10 Ex. 261 ; 44 L. J. Ex. 176 ; 33 L. T. 361 ; 23 W. E. 364) . 888 
 Holmes v. Penney (26 L. J. Ch. 179 ; 28 L. T. O. S. 156 ; 5 W. E. 132 ; 3 Jur. J{. S. 444 ; 
 
 3 K. & J. 90) ... 129, 152, 423 
 
 Holmes v. Simmons (L. E. i P. & D. 523 ; 37 L. J. P. D. & A. 58 ; 18 L. T. 770 ; 16 
 
 W. E. 1024) . • 93' 94i loi. 102 
 
 Holt V. Brien (4 B. & A. 252) . ... 308, 312 
 
 Holt v. Everall (2 Ch. D. 266 ; 45 L. J. Ch. 433 ; 34 L. T. 599 ; 24 ^Y. E. 471) . 322 
 
 Holt V. Lindsey (L. E. 7 Eq. 170 ; 38 L. J. Ch. 126 ; 19 L. T. 669); 17 W. E. 249) . 571 
 
 Holt V. Ward Clarencieux (2 Stra. 937) 116, 733, 744 
 
 Holtby V. Hodgson (Bateson Garnishee) (24 Q. B. D. 103 ; 59 L. J. Q. B. 46 ; 62 L. T. 
 
 14s ; 38 W. E. 68) . . 336. 432 
 
 Holyland v. Lewin (26 Ch. D. 266 ; 53 L. J. Ch. 530 ; 51 L. T. 14 ; 32 W. E. 443) . SS4 
 Home, JJe, .Ex yarft Home (54 L. T. 301) . . ... 286,299 
 
 Home V. Pringlo (8 CI. & Fin. 264) .... ■ 701 
 
 Digitized by Microsoft® 
 
xlvi TABLE OF OASES. 
 
 PAGE 
 
 Homfray, In the Goods of (12 P. D. 138; 57 L. T. 418)' 371 
 
 Honywood v. Hollywood (L. R. 18 Eq. 306 ; 43 L. J. Ch. 652 ; 30 L. 1'. 671 ; 22 W. H. 
 
 719) • • • • 684. V?^' 
 
 Hood Barrs, Ex parte. He Liimley ([1894], 3 Ch. 135 ; 63 L. .T. Ch. 897 ; 71 L. T. 7 ; 42 
 
 W. K. 633) 333, 381, 383, 392, 426 
 
 Hood Barrs v. Cathcart ([1894], 2 Q. B. 559 ; 63 L. J. Q. B. 602 ; 70 L. T. 862 ; 42 W. B. 
 
 628) ... .... 288, 379, 380, 381, 383, 393, 430, 432 
 
 Hood Barrs v. Cathcart ([1894], 3 Ch. 376 ; 63 L. J. Cli. 793 ; 71 L. T. 11) . 381, 392, 426 
 Hood Barrs v. Cathcart ([1895], i Q. B. 873 ; 64 L. J. Q. B. 520 ; 72 L. T. 427 ; 43 W. E. 
 
 560) ... 333: 381, 426, 432 
 
 Hooper r. Eyles (2 Vern. 480) . ... 661 
 
 Hope I', Carnegie (L. E. 7 Eq. 254 ; ig L. T. 374) 828 
 
 Hope V. Hope (26 L. J. Ch. 417 ; 29 L. T. 4 ; 5 W. B. 387 ; 3 Jur. N. S. 444 : 8 Do G. 
 
 M. & G. 731) . 436, 440, 507, 509, 781 
 
 Hope V. Hope {4 De G. M. & G. 328) .... 605 
 
 Hope V. Hope ([1892], 2 Ch. 336; 61 L, J. Ch. 441 ; 66 L. T. 522 ; 40 W. B. 522) . 217 
 
 Hopkins, -E-cjjarte (3 P. Wms. 154) . . 493.495,588: 
 
 Hopkins, Jle, Dowd v. Hawtin (19 Ch. D. 61 ; 30 ^y. E. 601) . . 695 
 
 Hopkinson r. Eoe (9 L. J. Ch. O. S. 7) 812- 
 
 Hora c. Hora (33 Beav. 88) . . 6,2 
 
 Horam v. Humphreys (Loftt, 80) . ii8 
 
 Horn V. Chandler (i Mod. 271) . . . -,.5 
 
 Horn V. Noel (i Camp. 61) ... _ jq. 
 
 Hombuckle v. Hornbniy (2 Stark. 177) . . . _ ^j^- 
 
 Home's Truets, Jle (4 Gifl. 254) . . . ... 702 
 
 Homer, lie, Bagleton i: Homer (37 Ch. D. 695 ; 57 L. J. Ch. 211 ; 58 L. T. 103 • 36 W E 
 
 348) .'371 
 
 Horner v. Horner (i Haj;-. Con. Eep. 337) . . 70 So 
 
 Horner v. Morton (3 Buss. 6=;) 
 
 ^ -.^ ... 204 
 
 Hornshy v. Lee (2 Madd. 16) . 
 
 ... . . 205 
 
 Horton v. M'Murtry (5 H. & N. 667 ; 29 L. J. Ex. 260 ; 8 W. E. 285) . 837 
 
 Honjhton Estate, Jle (30 Ch. D. 102 ; 55 L. .J. Ch. 37; 53 L. T. ig6 ; 33 W. B. 869) . 669 
 Houliston V. Smith (3 Bing. 127), 
 Household, Jle, Household v. Household (27 Ch. D. 553 ; 54 L. J. Ch. 157 ; 51 L. T 
 
 319) • • • . . • ■ • . 680 
 Howard v. The Bank ot England (L. B. 19 Eq. 295 ; 44 L. .T. Ch. 329 ; 31 L. T. 371 ■ 
 
 23 W. E. 303) 206, 250, 282, 318, 326, 356, 401, 82S 
 
 Howard r. Braithwaite (i V. & B. 209) .... o » 
 
 Howard t\ Chapman (4 C. & T. 508) . . a 
 
 Howard v. Crowther (8 M. & W. 601) . . ^ 
 
 Howard v. Digby (2 CI. & F. 634 ; 8 Bli. N. E. 224) . '.„'. ^ ^ 
 
 Howard v. Befuge Friendly siociety (54 L. T. 644) . . -r t -r j 
 
 Howard v. Steward (L. E. 2 C. P, 148 ; 36 L. J. C. P. 42 ; 12 Jur. N. S. 1015) .' .' 87I 
 
 Howard v. Wilson (4 Hag. Eccl. Bep. 107) . . * ' a 
 
 Howarth, Jle (L. E. 8 Ch. App. 415 : 42 L. ,J. Ch. 316 ; 28 L. T. 54 ; 21 W. E. 449) " ^^ 
 
 Howarth r. Mills (L. E. 2 Eq. 389; 14 L. T. 544) . . ^^' ^^'' ^^^ 
 
 Howel V. Howel (2 Ves. Sen. 358) .... ' ' 
 
 Hewlett V. Haswell (4 Camp. 118).. " ^^^ 
 
 Howson's Policy Trusts, He (W. N. 1885, 213) . ' ^^*' ^^^ 
 
 Hudson V. Carmichael (Kay, 613) ... ' ' 
 
 Huggins r. Wiseman (Carth. no) . * ' ' ^^^ 
 
 74S 
 
 i8S 
 849 
 802 
 
 Hughes r. Anderson, Jle Butler's Trusts (38 Ch. D. 286 ; 57 L. J t:h 645 ■ co T t' 
 
 _ 386 ; 36 W. E. 817) • M. 59^-1. 
 
 Hughes !'. Humphries (6 B. & C. 680 ; 9 D. & E. 721) 
 
 Hughes V. Maofle (33 L. J. Ex. 177 ; 12 W. E. 315 ; 10 Jur. N. s. 682 ; 2 H. & C "74.1) ' 
 Hughes V. Science (Amb. 302) . * 
 
 Hughes J). Wells (9 Ha. 749) . ' 787.789 
 
 Hughes' Trusts, Be (4 Gill. 432) . , ' ^'^' 3°7. 395. 399 
 
 Hughes' Trusts, He (W. N. 1885, 62) ... . " ' " -138 
 
 Huish's Charity, Jle (L. E. 10 Eq. 5 ; 39 L. ,). Ch. 499 ; 22 L.'t. 565 ; 18 W. E. 817) .' 547 
 
 Digitized by Microsoft® 
 
TABLE OP OASES. xlvii 
 
 I'AGE 
 
 Hull V. Great Northern Eailway Co. (Ireland) (26 L. K. Ir. 289) 563 
 
 Hulme r. Tenant (i Bro. C. C. 16) . 280, 347, 364 
 
 Hulse V. Hulae (25 L. J. C. 1'. 177 ; 17 C. li. 711) 863 
 
 Humphries, lie. Smith i: Millidgo (24 Ch. D. 691 ; 49 L. T. 594) 569 
 
 Humphreys, ife, Humphreys r. Leyett ([1893], 3 Ch. i ; 62 L. J. Ch. 498 ; 68 L. T. 729 ; 
 
 41 W. K. 519) ; 644, 646 
 
 Hunt, Me (2 Con. & Law. 373) .... .... 526, 527 
 
 Hunt V. De Blaquiere (5 Bing. 550 ; 3 Moo. & P. 108) 312, 315 
 
 Hunt V. Hunt (31 L. J. Ch. 161 ; 4 De G. V. & J. 221') 435, 439 
 
 Hunt V. Parry, Jie Alford (32 Ch. D. 383 ; 55 L. J. Ch. 659 ; S4 L. T. 674 ; 34 W. E. 773) 
 
 645, 648 
 
 Hunter !'. Atkins (3 Myl. & K. 113) 706 
 
 Hunter v. Dowager Countess of Berkeley (7 C. & P. 413) ... . 879 
 
 Hunter t: Edney (10 P. D. 93) 77 
 
 Hutchins to Bui-t (59 L. T. 490) 376 
 
 Hutchinson v. Newcastle and Berwick Eailway Co. (19 L. J. Ex. 296 ; 5 Exch. 343 ; 6 
 
 Kailw. Cas. 580) 869, 870, 873, 874 
 
 Hutchinson i: Norwood (31 Ch. D. 237 ; 55 L. J. Ch. 375 ; 54 L. T. 15 ; 34 ^y. K. 214) 813 
 
 Hunter v. Macrae (cited Macph. Inf. 112) 605 
 
 Huntingdon, Earl of, v. Countess of Huntingdon (2 Bro. P. C. i) . . . 194, 298 
 
 Hussey v. Hussey (5 Madd. 44) .... 682 
 
 Hutton V. Harper (1 App. Cas. 464) , . 26 
 
 Huxtable, Ex parte. Me Couibeer (2 Ch. D. S4 ; 45 L- J. Bk. 59 ; 34 L. T. 605 ; 24 
 
 W. E. 685) 161, 162 
 
 Hyde v. Hyde (29 L. J. P. M. & A. 150) 513 
 
 Hyde v. Hyde (13 P. D. 166; 57 L. J. P. 89 ; 59 L. T. 523) . . . 383, 393, 432, 515 
 Hyde v. Hyde and Woodmansee (L. E. i P. & D. 130 ; 35 L. J. P. & M. 57 ; 14 L. T. 
 
 188 ; 14 W. E. 517 ; 12 Jur. N. S. 414) 2, 4, 105, 460 
 
 Hyde v. Scissor (Cro. Jac. 538) . . 422 
 
 Hylton V. Hylton (2 Ves. 548) . . . . .... 584, 707 
 
 Ihleb, In the Goods of (L. E. 3 P. & D. 50 ; 42 L. J. P. M. & A. 18 ; 28 L. T. 479 ; 21 
 
 W. E. 550) 237 
 
 Ilchester, ^a; j)ar«e Earl of (7 Ves. 348) 596.598,630,715 
 
 Ilott V. Wilkes (3 B. & Aid. 304) .... 801 
 
 Incledon i\ Northcote (3 Atk. 438) 640 
 
 Ingham v. Bickerdyke (6 Madd. 275) .... .... 619 
 
 Ingham (/. c. Sachs) v. Sachs (56 L. T. 920) . . ... . . 462 
 
 Ingledew v. Douglas (2 Stark. 36) . . .... 736 
 
 Inglefield i\ Coghlan (2 Coll. 247) ...... . . , 347 
 
 Ingram v. Little (11 Q. B. D. 251 ; 31 ^^'. E. 358) . . . . . . 811, 818 
 
 Inman v. Inman (L. E. 15 Eq. 260 ; 21 W. E. 433) 766 
 
 Insole, Me (L. E. i Eq. 470; 35 L. J. Ch. 177 ; 11 Jur. N. S. ion ; 35 Beav. 92) 199, 351 
 
 Inwood I'. Twyne (Amb. 417 ; 2 Ed. 148) . 665 
 
 Isaac, Re, Jacob d. Isaac (30 Ch. D. 418 ; 54 L. J. Ch. 1136 ; 53 L. T. 478 ; 33 "W. E. 
 
 845) .... . . . 424 
 
 Isaac r. Gompertz (I Ves. 44) . 692 
 
 Irons V. Smallpiece (2 B. & Aid. 551) . 293 
 
 Irving V. Greenwood (i C. & P. 350) .119 
 
 Irwin «. Dearman (II East, 23) . . 561,633 
 
 Ivens V. Butler (26 L. J. Q. B. 145; 3 Jur. X. S. 334 ; 7 El. & Bl. 159) . . 330, 337 
 
 Jackson v. Hankey ( cited as Anon. Jac. 265 ") 797 
 
 Jackson i: Innes (i Bli. 104) . . ... . 193 
 
 Jackson v. Parker (Amb. 687) 230 
 
 Jackson, Me, Jackson v. Talbot (21 Ch. D. 786) 666, 681 
 
 Jackson's Will, Me (13 Ch. D. 189 ; 49 L. J. Ch. 82 ; 41 L. T. 499 ; 28 AV. E. 209) 139 
 
 Jacob V. Isaac, lie Isaac (30 Ch. D. 418 ; 54 L. J. Ch. 1136 ; 53 L. T. 478; 33 W. I!. 
 
 845) -+^4 
 
 Jacobs V. Amyatt (i Madd. 346 ») ■ 210, 347 
 
 Jacquot f. Boura (3 Jur. 776; 7 Dowl. 1". C. 348) . • . . '. 837: 
 
 Digitized by Microsoft® 
 
xlviii TABLE OF CASES. 
 
 PAGE 
 
 James, Ex parte (8 Ves. 348) ■ • S^^ 
 
 James, lie (L. K. 5 Eq. 334) • ■ .610 
 
 James v. Barraud (49 L. T. 300 ; 31 W. E. 786) 334- 4^4 
 
 James v, Dearmer, Re Dearmor (53 L. T. 905) 202, 34S- 
 
 James v. Durrant (2 Beav. 177) • 138 
 
 James 0. James, Re Bowen ([1892] 2 Ch. 291 ; 61 L. J. Cli. 432) . 3S7> 37° 
 
 James v. James and Smith (51 L. J. P. 24) , . . ■ • • 7 
 
 Jamieson, Re, Em parte Pamell v. Jamleson (60 L. T. 159 ; 37 W. K. 464) . 407 
 
 Jari-att v. Aldam (L. E. 9 Eq. 463 ; 39 L. J. Ch. 349 ; 22 L. T. 192 ; 18 W. R. 511) . 539 
 Jay V. Eobinson (25 Q. B. D. 467 ; S9 L. J. Q. B. 367 ; 63 L. T. 174 ; 38 W. R. 550) 
 
 265. 359. 379. 393 
 
 Jay 1). WMtfleld (cited 4 Bing-. 644 ; 3 B. & A. 308) 557, 801 
 
 Jee V. Thurlow (2 B. & C. 547) . ... . . . 442 
 
 Jeffery, Re, Arnold v. Burt (No. 2) ([1895] 2 Ch. 577 ; 64 L. J. Ch. 830 ; 73 L. T. 332 ; 
 
 44 W. E. 61) . . -645 
 
 Jefh'eys v. Wanteswarstwarth (Barn. Ch. 141) 506, 5i8, 797, 798 
 
 Jenkins, Re (5 Euss. 183) . . ... 200 
 
 Jenkins i\ Tucker (i H. Bl. 90) . . . . . . 276 
 
 Jenkyn v. Vaughan (3 Drew. 419) .... ... . 158 
 
 Jenner v. Morris (30 L. J. Cli. 361 ; 3 L. T. 871 ; 9 W. K. 391 ; 7 Jur. N. S. 375 ; 3 De 
 
 G. F. & G. 45) . . 313 
 
 Jenner v. Turner (16 Ch. D. 188 ; 50 L. J. Ch. 161 ; 43 L. T. 468 ; 29 ^Y. E. loi) . g 
 Jenner v. "Walker (19 L. T. 398) . . . . 747, 749, 750 
 
 Jenney v. Andrews (6 Madd, 264) . 394 
 
 Jennings i\ Brown (12 L. J. Ex. 86) ... . 578 
 
 Jennings v. Eundall (8 T. E. 335) . ... 757 
 
 Jervois r. Dnke (i Vern. 19) . . . . , . 9 
 
 JeiTOise ». Duke of Northumberland, (I Jac. & W. 559) . . 142 
 
 Jervoise v. Jervoise (17 Beav. 566) . . 406 
 
 Jervoiso v. Silk (i G. Coop. 52) . ... . 648, 653 
 
 Jesson V. Collins (2 Salk. 437 ; S. C. 6 Hod. 155) . 16 
 
 Jcston V. 'Key (L. E. 6 Ch. App. 610 ; 40 L. J. Ch. 503 ; 25 L. T. 522 ; 19 W. E. 864) 146, 147 
 
 Jeune i\ Ward (2 Stark. 328) . . 819 
 
 Jewsbury v. Newbold (26 L. J. Ex. 247) . .... . 308, 828 
 
 Jewson V. Moulson (2 Atk. 420) . 208 
 
 Jeyes v. Savage (L. E. 10 Ch. 555 ; 44 Ij. J. Ch. 706 ; 33 L. T. 139 ; 23 W. K. 764) 142 
 
 Joddrell v. Joddrell (15 L. J. Ch. 17 ; g Beav. 45) . . . . 442, 445, 646 
 
 Joel V. Morrison (6 C. & P. 501) . 884, 885 
 
 Johnes v. Lockhart (cited 3 Bro. C, C. 383 ») . . . 347 
 
 Johnson, .fle. Golden v. Gillam (51 L. J. Ch. 503; 20 Ch. D. 389 ; 46 L. T. 222) 155, 157, 158 
 Johnson v. Blenkensopp (5 Jur. 870) . . . .... 824, 832 
 
 Johnson v. Gallagher (30 L. J. Ch. 298 ; 4 L. T. 72 ; 9 W. E. 506 ; 7 Jur. N. .S. 273 ; 
 
 3 De G. r. & J. 494) . . . 280, 281, 283, 289, 331, 395, 430 
 
 Johnson i\ Hankey (Jac. 265 n) . . ro6 
 
 Johnson v. Johnson (i J. & W. 472) . ... 209 
 
 Johnson v. Johnson (i Ke. 648) . . 349 
 
 Johnson 0. Johnson (35 Ch. D. 345 ; 56 L. J. Ch. 326 ; 56 L. T. 163 ; 35 W. R. 329) 
 
 186, 188, 355 
 Johnson v. Lander (L. E. 7 Eq. 228 ; 38 L. J. Ch. 229 ; 19 L. T. 592 ; 17 W. R. 272) , 351 
 Johnson i\ Lindsay ([1891] App. Cas. 371 ; 65 L. T. 97 ; 55 J. P. 644) . . . 870 
 
 Johnston v. Hill, Re Dawson (39 Ch. D. 155 ; 57 L. J. Ch. 1061 ; 59 L. T. 725 ; 37 
 
 W. E. 51) . . . . . . ... 388,816 
 
 Johnston v. Johnston (52 L. T. 76 ; 33 W. E. 239) . . i C3 
 
 Johnston v. Parker (/. c. Johnston) (3 Phill. 39) go 
 
 Johnston v. Sumner (27 L. J. Ex. 341 ; 4 Jur. N. S. 462 ; 3 H. & N. 261) 308, 310, 313 
 
 Johnstone v. The Attorney-General (42 L. J. P. M. & A. 3 ; 29 L. T. 547 ; 22 W. E. 
 
 208) . . . . .488 
 
 Johnstone v. Baber (8 Beav. 233) ggc 
 
 Johnstone v. Beattie (10 CI. & F. 42) 486, 607, 608, 610, 631, 781, 783 
 
 Johnstone v. Lnmb (15 Sim. 308) . .... , . ^ 2^1 
 
 Johnstone v. Marks (19 Q. B. D. 509 ; 57 L. J. Q. B. 6 ; 35 W. E. 806) . . 751 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 xlix 
 
 PAGE 
 
 Johnstons (Infants), Re (2 Jo. & Lat. 222) 599, 606 
 
 Jolly 0. Eees (33 L. J. C. P. 177 ; 12 W. E. 473 ; 15 C. B. N. S. 628) 
 
 279. 304- 305. 308, 309. 314 
 Jones, £i- parte, lie Griasell (12 Ch. D. 484 ; 48 L. J. Bk. 109 ; 40 L. T. 790 ; 28 
 
 W. E. 287) 263, 318 
 
 Jones, Bx parte. Me Jouea (18 Ch. D. 109 ; 30 L. J. Ch. 673 ; 44 L. T. 587 ; 29 W. K. 
 
 747) 715- 726, 736, 737, 744, 750, 761 
 
 Jones, Me, Farrington v. Forrester ([1893] 2 Ch. 461 ; 62 L. J. Ch. 996 ; 69 L. T. 45) . 776 
 Jones' "Will, Xe ( 2 Ch. D. 362 ; 45 L. J. Ch. 428 ; 35 L. T. 25 ; 24 W. E. 697) . . 138 
 Jones )'. Blake, Be Blake (29 Ch, D. 913 ; 54 L. J. Ch. 880 ; S3 L. T. 302 ; 33 W. E. 
 
 886) 665 
 
 Jones V, Foxhall (15 Beav. 388) 690 
 
 Jones V. Griffiths (2 Coll. N.C. 207) 222 
 
 Jones V. Harris (9 Ves. 493) 288 
 
 Jones r. Henley (2 Ch, Eep. 361) 826 
 
 Jones V. Hlggins (L. E. 2 Eq. 538 ; 35 L. J. Ch. 403; 14 L. T. 126 ; 14 W. E. 448) . 386 
 
 Jones t>. How (7 Ha. 267) . 132 
 
 Jones t'. James' (18 li. T. 243 ; 16 W. E. 762) 114 
 
 Jones V. Jones (4 K. & J. 361) 228 
 
 Jones r. Jones (i Q. B. D. 279) . . 7 
 
 Jones V. Lewis (i De G. & S. 245) 809 
 
 Jones V. Corporation of Liverpool (14 Q. B. D. 890 ; 54 L. J. Q. B. 345 ; 33 W. E. 551) 883 
 
 Jones V. Lloyd (L. E. 18 Eq. 265 ; 30 L. T. 487 ; 32 W. E. 785) 773 
 
 Jones V. Powell (9 Beav. 345) 495, 606, 620, 625 
 
 Jones V. Powell (2 Mer. 141) 812 
 
 Jones V. Eohinsou (2 Phill. 285) 104 
 
 Jones V. Smith (2 Ph. 244) 229 
 
 Jones V. Thomas (53 L. T. 678 ; 34 W. E. 104) 856 
 
 Jones V. Waite (9 CI. & F. 101 ; 4 M. & G. 1104 ; 8 L. J. Ex. 305 ; 6 Jur. 653 ; 7 Scott, 
 
 317 ; s Bing. N. C. 341) 440, 442 
 
 Jones ». Duke ofWestminster (Times, April 26, 1879) 853 
 
 Jordan, He, Kino v. Plckard (55 L. J. Ch. 330 ; 54 L. T. 127 ; 34 W. E. 270) . . 386 
 
 Jordan v. Jones (2 Ph. 170) 188 
 
 Jorden v. Money (5 H. L. Cas. 185) 152 
 
 Joyce V. Cottrell, Me Cottrell (L. E. 12 Eq. 566 ; 41 L. J. Ch. 70 ; 25 L. T. 405 ; 19 \V. 
 
 E. 1076) 652 
 
 Jndkins' Trusts, Me (25 Ch. D. 743 ; 53 L. J. Ch. 496 ; 50 L. T. 200 ; 32 W. E. 407) 
 
 641, 644, 645 
 
 Jnlins V. Bishop of Oxford (5 App. Cas. 214) 270 
 
 Jump V. Jump (8 P. D. 159 ; 52 I-. J. P. D. 71 ; 31 W. E. 956) 515 
 
 Japp, Me, Jnpp v. Brockwell (39 Ch. D. 148 ; 57 L. J. Ch. 774 ; 59 L. T. 129; 36 W. 
 
 E. 712) 168, 187 
 
 Kane r. Kane (16 Ch. D. 207 : 50 L. J. Ch. 72 ; 43 L. T. 667 ; 29 W. E. 212) 
 Kay V. Duchess of Pienne (3 Camp. 123) .... 
 
 Kay V. Johnston (21 Beav. 536) 
 
 Kay v. Smith (21 Bear. 522 ; 7 H. L. C. 750) 
 
 Kaye, Me (L. E. i Ch. App. 387 ; 14 L. T. 388; 14 W. E. S97 
 
 12 Jur. 
 
 Keane v. Boycott (2 H. BI. S") 
 
 Kealey v. Tonge (60 L. J. M. C. 159; 65 L. T. 261) 
 
 Kebble, jBariiarte (II Ves. 604) 
 
 Keily v. Keily (2 Dr. & War. 38 ; 2 Con. & Law. 334) . 
 
 Kelly V. Monck (3 Eldg. P. C. 205) 
 
 Kekewich v. Manning (i De G. M. & G. 176) 
 
 Kelly V. Coote (5 Ir. Eep. C. L. 469) 
 
 Kelly V. Partington {4 B. & Ad. 700) . . . ' . 
 
 Kemmis v. Kemmls (13 L. E. Ir. 372) 
 
 Kemp's Settled Estates, Me (24 Ch. D. 485 ; 52 L. J. Ch. 590 ; 49 L. 
 
 930) 
 
 702, 
 N. S. 350) 
 
 494. 597. 
 720, 721, 
 
 • 134 
 
 • 279 
 . 618 
 
 704, 760 
 
 606, 634 
 754. 768 
 
 231 
 
 31 W. 
 
 . 641 
 
 . 546 
 
 7 
 
 • 147 
 . 718 
 
 • 857 
 . 648 
 
 E. 
 606, 671 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 195 ; 30 L, 
 
 Kempson v. Aahbee (L. K. 10 Ch. App. 15 ; 44 L. J. Ch, 
 
 871) 
 
 Kenrick v. Wood (L. R. 9 Eq. 333 ; 19 W. B. 57) 
 
 Kent, Expm-te (3 Bro. C. C. 88) . 
 
 Kent V. Burgess (11 Sim. 361 j S Ji^. 166) • 
 
 Kentish v. Newman (i P. Wms. 234) 
 
 Kerr (an Infant), Be (24 L. E. Ir. 59) . 
 
 Kerrison's Trusts, Re (L, E. 12 Eq. 422 ; 40 L. J. Ch. 637; 25 L. 
 
 Kershaw, Ee, Whittaker r. Kershaw (45 Ch. D. 230; 60 L. J. Ch 
 
 W. E. 23) 
 
 Kershaw v. Kershaw (51 J. P. 646) 
 
 PAGE 
 
 T. 749 ; 22 W. E. 
 
 . 710 
 
 • 384 
 . 637 
 
 462, 791, 792, 795 
 
 . 142 
 
 S73 
 
 T. 57 ; 19 W. E. 967) 649 
 9 ; 63 L. T. 203; 39 
 288, 332, 383, 424, 430 
 
 • 45° 
 
 Kershaw's Trusts, Ee (L. E. 6 Eq. 322 ; 37 L. J. Ch. 751 \ 18 L. T. 899 ; 16 W. E. 963) 299, 655 
 
 265 i 55 L. T. 498; 35 W. 
 
 E. 176) 
 
 58 L. J. Q. B. 456 
 
 Ketley's Case (i Brownl, 120) . 
 
 Ketsey's Case (Cro. Jac. 320) . 
 
 Kettle V. Elliott (i EoU. Abr. 731) 
 
 Key V. Bradshaw (2 Vera. 102) 
 
 Keyworth v. Hill (3 B. & Aid. 685) 
 
 Kibble, Ex parte, Ee Onslow (L. E. 10 Ch. App. 373 ; 44 L. J. Bk. 63 
 
 23 W. E. 433) 
 Kidman v. Kidman (40 L. J. Ch. 359) 
 Kidney v. Coussmaker (12 Ves. 148) 
 Kiffl V, Eoberts, Ee Eoberts (33 Ch. D. 
 Kiffin V. Klffin (cited i P. Wms. 705) . 
 Kilbee v. Sneyd (2 Moll. 233) .... 
 
 KilUck, Expm-te (3 M. D. & De G. 480) 
 Kilvington v. Gray (10 Sim. 293) ... 
 
 Kincaid's Trusts, Ee (16 Jur. 106 ; i Drew. 326) . 
 King,^i2e, Ex parte Joint Stock Banking Association (27 L. J. Bk. 33 
 
 246 ; 4 Jul-. N. S. 1257 ; 3 De G. & J. 63) . 
 King V. Bassingham (8 Mod. 199) . 
 King V. Bellord (i H. & M. 343 ; Sugd. Pow. 177) 
 King V. Gillett (7 M. & W. 55) 
 King V. Hamlet (2 M. & K. 456) . ... 
 
 King V. Klng-Harman (Ir. Eep. 7 Eq. 446) . 
 King ». London Improved Cab Co. (23 Q. B. D. 281 
 
 37 W. E. 737) .... 
 King V. Lucas (23 Ch. D. 712 ; 53 L. J. Ch. 64 ; 49 L. T. 216 i 31 W. E, 
 King V. Spurr (8 Q. B. D. 104 ; 51 L. J. Q. B. 105 ; 45 L. T. 709 ; 30 W 
 King V. Toss (13 Ch. D. 504 j 42 L. T. 78 ; 28 W. E. 565) 
 
 King ji. Waring (5 Esp. 15) 
 
 Kingdon v. Bridges (2 Vern. 67) .... 
 Kingham v. Lee (16 L. J.Ch. 491 ; 11 Jur. 5 ; 15 SJm. 396) 
 
 Kingsley's Trusts, Ee (26 Beav. 84) 
 
 Kingsman v, Kingsman (6 Q. B. D. 122 ; 50 L. J. Q. B, 81 ; 44 L. T. 
 
 207) 
 
 Kingston, Ex parte, Ee Gross (L. E. 6 Ch. App. 632 ; 19 W. E. 910) 
 Kingston's Case, The Duchess of (i Leach, 146 ; 11 St. Tr. 262) . 
 Kino V. Pickard, Ee Jordan (55 L. J. Ch. 330 ; 54 L. T. 127 ; 34 W. E. 
 Kirk V, Paulin (9 Vln. Abr. 96, pi. 43) . 
 Kirkman v. Booth (11 Beav. 273) .... 
 
 Kirton v. Elliott (2 Bulst. 69) . . . 
 
 Klnht's Case (19 L. J. Ch. 305 ; 3 De G. & S. 210) 
 Knatchbull i\ Fowle (i Ch. D. 604 ; 24 W. E. 629) 
 Knee, Ex parte (i B. & P. N. E. 148) . 
 Knight V. Browne (30 L. J. Ch. 649) 
 Knight V. Knight (18 L. E. Eq. 487 ; 43 L. J. CI1. 611 ; 22 W. B. 792 
 ; 617) . . . . . . . 
 
 Knight V. Lord Plimouth) 3 Atk. 480 ; 1 Dick. 120) 
 
 Knott V. Cottee {2 Ph. 192) 
 
 Knowles' Settled Estates, Ee (27 Ch. D. 707 ; 54 L. J. Ch. 264; 51 L. 
 
 364) . • ■' • •' 
 
 726, 736, 737, 762, 763 
 . 646 
 . 158 
 ■ 425 
 
 • 694 
 695.699 
 
 • 346 
 
 • 65s 
 . 212 
 
 O. S. 
 
 725^737 
 . 422 
 
 • 732 
 . 119 
 
 • 549 
 . 152 
 
 32 L. T 
 
 30 
 
 L. T. 
 
 61 L. T 
 
 739 
 
 739. 76s 
 
 739. 765 
 
 II 
 
 . 269 
 
 138: 
 
 34; 
 
 904) 284, 361, 390 
 
 B. 152) . 883 
 
 . 186 
 
 854 
 
 . 292 
 
 181, 183, 27s 
 
 • 352 
 125 ; 29 W. E. 
 
 ■ 332. 423. 776 
 . 689 
 
 • 83 
 
 270) 
 
 . 386 
 
 • 347 
 . 689 
 
 739. 765 
 
 . 267 
 
 810 
 
 • 572 
 . 140 
 
 ; II Jur. X. S. 
 
 209, 366 
 ■ 69s 
 599, 690 
 33 \V. E. 
 
 . 671 
 
 655; 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. 
 
 Knowlman v. Bluett (L. E. 9 Ex. i ; 43 L. J. Kx. 29; 29 L. T. 462 ; 22 W. It. 77) , 577 
 Knox, Re (23 L. K. Ir.) 542 
 
 Lacey r. Hill (4 Cli. D. 537) . 
 
 Lacou, Xe, Lacon !■. Lacon ([1891] 2 Cli. 482; 60 L. J. Ch. 403 ; 64 L. 
 
 W. E. 514) 
 
 Lacon i: Hlggius (3 Stark. 178) 
 
 Ladd l: Lynn (i Jur. 42 ; 2 M. & W. 265 ; M. & H. 27) 
 
 Ladng c. Walker (64 L. T. 527) 
 
 Lake i: Campbell (5 L. T. 582) 
 
 Lamb v. Eames (L. E. 10 Eq. 267 ; 40 L. J. Ch. 15 ; 18 W. E. 972) 
 
 Lambert i\ Hutcblni-on (i Beav. 277) 
 
 Lambert v. Parker (G. Coop. 143) . 
 
 Lambert c. Turner (10 W. E. 335) 
 
 Lambert's Eatate, lie, Stanton ». Lambert (39 Ch. D. 626 ; 57 L, 
 
 T. 429 ; 39 
 540. 541. 
 
 3°4. 
 
 876, 
 
 1 32, 
 
 36. 
 
 J. Ch.927; 5gL. T. 429) 
 231. 
 Lamplugh r. Lamplngb (i P. Wms. 112) 
 Land i: Land (43 L. J. Ch. 311) .... 
 
 Lane v. Cotton (12 Mod. 472) 
 
 Lane r. Goodwin (12 L. J. Q. B. 157 ; 4 Q. B. 361) 
 Lane v. Ironmonger (14 L. J. Ex. 35 ; 13 31. & W. 368) 
 
 Lang r. Lang (8 Sim. 451) 
 
 Lang i: Splcer (i M. & W. 129) ... 
 Langan r. Great Western Eailway Coy. (30 L. T. 173) . 
 Langton t\ Braokenburgh (2 Coll. 446) . . ; . 
 Lanoy i: Dnchess of Athol (2 Atk. 444) . 
 
 Laporte i-. Costlck (23 W. E. 133) 
 
 Lapsley i\ Grierson (i H. L. Cas. 498) . 
 
 Lassence i: Tieruey (i Mac. & G. 551) . . . 
 
 Latham i\ Latham (W. N. 1889, 171) ... . . 
 
 Latouche v. Latouche (34 L. J. Ex. 85 : 13 L. T. 773 : 13 W. K. 563 ; 11 .lur. N. s. 
 
 271 ; 3 H. & C. 576) . . 
 
 Landerdale Peerage, The (10 App. Cas. 692) .... .6, 
 
 Laugher i\ Pointer (5 B. & C. 547) . . 
 
 Lantour v. Teesdale (8 Tiiunt. 830) . . 
 
 Lavender v. Blackstone (2 Lev. 146) 
 
 Lavie r. Phillips (3 Burr. 1782 ; 1 AVm. Bl. 570) ..... 
 
 Law i: Wilkin (6 A, &, E. 718) . . . 
 
 LawfordtJ. DaTies(4 P. D. i; 47 L. J. P. 38; 39 L. T. Ill ; 26 W. E. 424) . 3 
 
 Lawler v. Linden (10 Ir. C. L. Eep. 188) . . ... 
 
 Lawton v. Elwes, Be Corsellis (52 L. J. Ch. 399; 31 W. E. 414) 
 
 Layborn v. Groves-Wright, lie Elcom ([1894] i Ch. 303 ; 63 L. J. Ch. 392 ; 70 L. T. 
 
 S4; 42 W. E. 279) ... 
 
 Leach r. Leach (13 Sim. 304) 
 
 Leake r. Driffield (24 Q. B. D. 98 ; 59 L. J. Q. B. 89 ; 61 L. T. 771 ; 38 W. E. 93) 
 
 287, 28S, 290, 361, 382, 
 Learoyd i: Brook ([1891] i Q. B. 431 ; 60 L. J. Q. B. 373 ; 64 L. T. 458 ; 39 W. E. 480) 
 
 843, 
 Leche v. Kllmorey (T. & E. 207) . . . .... 
 
 Lechmere v. Brotheridge (32 L. J. Ch. 577 ; 11 W. E. 814 ; 32 Beav. 353) 
 
 Lecone v. Sheires (i Vern. 442) . 
 
 Lee r. Bayes (25 L. J. C. P. 249) ... ... 
 
 Lee i\ Brown (4 Ves. 362) . 
 
 Lee i\ D'Aranda (i Ves. Sen. i ; 3 Atk. 419) . . . . 
 
 Lee V. Lee (4 Ch. D. 175 ; 46 L. J. Ch. 81 ; 36 L. T. 138 ; 25 W. E. 225) 
 
 Lee V. Prieaux (3 Bro. C.C. 381) 
 
 Lee V. Eobinson (^ .Tur. 1093 ; 18 C. B. 599) 
 
 Leeds v. Cook (4 Esp. 257) 
 
 Leeds v. Leeds (57 L. T. 373) 
 
 Leeming, lie, lie Gascoigne (20 L. J. Ch. 550) 
 Lees V. Coulton (L. E. 20 Eq. 20 ; 44 L. .7. Ch. 556) 
 
 299 
 
 543 
 460 
 316 
 406 
 864 
 
 643 
 698 
 642 
 817 
 
 234 
 714 
 
 652, 654, 
 
 134. 
 
 314 
 239 
 580 
 878 
 
 651 
 291 
 318 
 486 
 144 
 388 
 
 280 
 486 
 882 
 
 463 
 130 
 
 317 
 519 
 ■ 38 
 824 
 811 
 
 204 
 648 
 
 430 
 
 849 
 655 
 369 
 715 
 891 
 656 
 238 
 146 
 346 
 891 
 119 
 163 
 
 693 
 667 
 
 Digitized by Microsoft® 
 
Hi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Le Geyt v. O'Brieu (Milw. Ii-. Eccl. E. 325) 77. 78 
 
 Legg V. Gold-n'ire (Ca. t. Tulb. 20) ^^9 
 
 Legge r. Edmonds (25 L. J. Ch. 125) .... S°7 
 
 Leigh, lie, Leigh v. Leigh (40 Ch. D. 290 ; 58 L. J. Ch. 306 ; 60 L. T. 404 ; 37 W. K. 241) 
 
 771. 776. 779. 793. 796 
 Leigh's Estate, lie (L. K. 6 Ch. App. 887 ; 19 W. K. 1105) . • 68i 
 
 Leigh's Case, Lord (3 Kel. 433) .169 
 
 Le Loir v. Bristow (4 Camp. 134) 865 
 
 Lemon «. Simmons-(57 L. J. Q. B. 2$o i 36 W. K. 45) .... . 403 
 
 Lcmprifere v. Lange (12 Ch. D. 675 ; 41 L. T. 378 ; 27 W. E. 879) . . . -739 
 
 Leney v. Hill (L. E, 19 Eq. 346; 44 L. J. Ch. 215 ; 32 L. T. 48 ; 23 W. E. 285) . 221, 228 
 Leng, Bn, Tarn 1}. Emmersou .([1895] i Ch. 652; 64 L. J. Ch. 468 ; 72 L. T. 407; 43 
 
 W. E. 406) 
 
 833 
 
 Leroux v. Brown (22 L. J. C. P. i ; 12 C. B. 801) ... ... 
 
 Leslie i\ Fitzpatrlck (3 Q. B. D. 229 ; 47 L. J. M. C. 22 ; 37 L. T. 446) 
 
 722, 7S4. 756. 830, 84s, 850 
 Lester, Ex parte, lie Lj-nes ([1893] 2 Q. B. 113; 62 L. J. Q. B. 372; 68 L. T. 739; 41 
 
 W. E. 488) 291, 319, 33S, 383, 391, 433 
 
 L. T, 
 
 60; 
 291. 33S. 336 
 354 
 214 
 242 
 620 
 
 654 
 810 
 850 
 170 
 250 
 679 
 
 70 
 
 L. T. 
 
 Lester v. Garland (5 Sim. 205) 
 
 Le Sueur v. Le Sueur (i P. D. 139 ; 45 L. J. P. D. & A. 73 ; 34 L, T. 511 ; 24 W. E. 
 
 616) 
 
 Lctchford, Be (2 Ch. D. 719 ; 45 L. J. Ch. 530) 
 
 Le Vaaseur v. Scratton (14 Sim. 116) ... . . 
 
 Lettcrstedt v. Broers (9 App. Cas. 371 ; £3 L. J. P. C. 44 ; 51 L. T. 169) 
 Levene, Ex parte, Be Hewett ([1895] i Q. B. 328 ; 64 L. J. Q. B. 185 ; 72 
 
 43W. E. 237) 
 
 Lewin v. Lewin ([1891] r. 254 ; 60 L. J. P. 85 ; 64 L. T. 834 ; 39 W. E. 575) 
 
 Lewin's Trusts, Be (20 Bear. 378) .... 
 
 Lewis' Case (4 Bums, Eccl. Law, 51) •" • 
 
 Lewis, Me (z Moll. 485) ... 
 
 Lewis V. Lewis (i Cox, Eq. Cas. 162) 
 
 Lewis r. Nobbs (8 Ch. D. 591 ; 47 L. J. Ch. 662) . 
 
 Lewis V. Peacey (31 L. J. Ex. 496 ; 10 W. K. 797 ; i H. & C. 518) 
 
 Lewis V. Ponslord (8 C. & P. 687) .... 
 
 Lewis Bowles' Case (i W. L. & T. L. C. 60) . 
 
 Leys V. Price (9 Mod. 217) 
 
 L'Herminier, Be, Mounsey v. Buston ([1894] i Ch. 675 ; 63 L. J. Ch. 496 
 
 727) 
 
 Liddlow V. Wilmot (2 Stark. 86) . . 
 
 Life Assurance of Scotland i\ Siddal (4 L. T. 311 ; 9 W. E. 541 ; 2 De G. F, 
 
 Lightbown v. McMyn, Be MeMyn'(33 Ch. D. 575 ; 55 L. J. Ch. 843 ; 35 W. 
 
 Lillwall's Settlement, Be (30 W. E. 343) 
 
 Limland v. Stephens (3 Bsp. 269) .... 
 
 Limpus V. London General Omuibus Co., (32 L. J. Ex. 34 ; 7 L. T. 641 ; 11 
 
 I H. & C. 526V 
 
 Liudo, Be, Askin r, Ferguson (59 L. T. 462) . 
 
 Lindo V. Belisario ( i Hag. Con. E. 216) . 
 
 Lindsay v. Tyrrell (2 De G. & J. 7) 
 
 Lindsell r. Thacker (12 Sim. 178) . 
 
 Lindus v. Bradwell (5 C. B. 583) .... 
 
 Linton v. Linton (15 Q. B. D. 239 ; 54 L. J. Q. B. 529 ; 52 L. T. 782 ; 33 W. E. 
 
 Lister v. Lister (15 P. D. 4 ; 62 L. T. go) 
 
 Litchfield's Case, (3 De G. & S. 141) 
 
 Little's Will, Be, Be Harrison (36 Ch. D. 701 ; 56 L. J. Ch. 872 ; 57 L. T. 583) 
 
 Lloyd, Be (3 M. & G. £47; 4 Sc. N. E. 200; 5 Jur. 1198) , 
 
 Lloyd, Be, Allen v. Lloyd (12 Ch. D. 447 ; 41 L. T. 371 ; 28 W. E. 8) 
 
 Lloyd V. Attwood (3 De G. & J. 614) 
 
 Lloyd V. Cocker (27 Bear. 645) .... 
 
 Lloyd V. Daviea (10 Jur. N. S. 104;) 
 
 Lloyd V. Lloyd (2 Myl. & Cr. 192 ) 
 
 Lloyd V. Petitjean (2 Curt. 251) 
 
 & J 
 
 W.E, 
 
 140 
 
 167 
 674 
 204 
 614 
 
 372 
 303 
 210 
 
 271) 
 
 E. 179) 276, 397 
 
 388, 671 
 
 . 860 
 
 149! 
 886, 883 
 
 • 225 
 3, 104, 463 
 
 . 810 
 
 ■ 346 
 284, 302 
 
 714) • 389 
 
 ■ 444 
 734. 743 
 385. 387 
 573. 575 
 
 . 810 
 . 698 
 
 • 655 
 . 813 
 . 146 
 . no 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. liji 
 
 I'ACE 
 
 Lloyd c. Pughe (L R. 8 Ch. App. 83 ; 42 L. J. t'h. 282) ... . 207, 425 
 
 Lloyd's Trusts, lie (L. K. 2 Eq. 507) .... . . . ' 782 
 
 Lookey i'. Loekey (Free. Cli. 518) 806 
 
 Lockyer r. Savage (2 Stra. 947) ... 140 
 
 Lofthouse (an infant), Jle (29 Ch. D. 921 ; 54 L. .). Ch. 1087 ; 53 L. T. 174 ; 33 W. K. 
 
 660) g^j, 
 
 Loftus c. Hcrlot ([1895] 2 Q. B. 212 ; 64 L. J. Q. 15. 717 j 73 L. T. 167) 380, 381, 383, 432 
 
 Logan i: Birkett (i Myl. & K. 220) 440 
 
 Logan i: Fairlee (Jac. 193) . . ... 605 
 
 London, Bombay and Mediterranean Bank, Me (18 Ch. D. 581 ; 50 L. J. Ch. 557 ; 45 
 
 L. T. 166: 30W. K. 118) 266 
 
 London Chartered Bank ol Australia i: Lemprifere (L. E. 4 P. C. 572 ; 42 L. J. r. C. 
 
 49; 29 L. T. 186; 21 W. B. 513) .... 234,281,285,374,394,395 
 London and Provincial Bank v. Bogle (7 Ch. D. 773 ; 47 L. J. Ch. 301 ; 37 L. T. 780 ; 
 
 26 W. E. 573) ■ . •. 263, 267, 355 
 
 London, School Board of, v. Duggan (13 Q. B. D. 176 ; 53 L. J. Q. B. 104 ; 32 W. K. 768) 521 
 London, School Board of, u. Jackson (7 Q. B. D. 502; 51 L. J. M. C. 134 ; 30 W. E. 47) 521 
 Loudon, School Board of, v. Wood (15 Q. B. D. 415 ; 54 L. J. Q. B. 145 ; 54 L. T. 88) 521 
 London, School Board of, v. Wright (12 Q. B. D. 568; 53 L. J. Q. B. 266 ; 50 L. T. 
 
 606; 32 W. E. 577) 522 
 
 London Syndicate v. Lord (8 Ch. D. 84; 38 L. T. 329 ; 26 W. E. 427) . . . 691 
 
 Lonergan, Me, Ex parte Sheil (4 Ch. D. 789 ; 46 L. .J. Bk. 62 ; 36 L. T. 270 ; 25 W. li. 
 
 420) ... . . 299 
 
 Long, Me (38 L. J. Ch. 125 ; 19 L. T. 672 ; 17 W. E. 218) . . • • 655 
 
 Long i\ Aldred (3 Add. 48) 242 
 
 Long e. Gardner, Me Gardner (67 L. T. 552 ; 41 W. E. 203) 713 
 
 Long V. Keightley (11 Ir. C. L. 221) . . 562 
 
 Long V. Long (2 Sim. & St. 119) . 792, 794 
 
 Long V. Ovenden (16 Ch. D. 691 ; 50 L. J. Ch. 314 ; 44 L. T. 462 ; 29 W. 1!. 709) . 638 
 
 Longhottom v. Pearce (3 De G. & J. 545 n) . 794 
 
 Long-ley i. (i PhiU. 148 «) . . . 93 
 
 Longmeld u. Holllday (6 Ex. 761) . 173, 420 
 
 Longridge v. Levy (4 M. & W. 337) .... .... 173 
 
 Long Wellesley's Case (2 E. & M. 639) ... 505, 790 
 
 Lord I/. Colvin (28 L. J. CI). 361 ; 32 L. T. O. S. 377 ; 7 W. K. 250 ; 5 Jnr. N. S. 351 ; 
 
 4 Dr. 366) ... 455 
 
 Louth V. Drummond (cited Smith M. & S. 95) . . . . . 824 
 
 Lovell V. Beauchamp ([1894] App. Cas. 607 ; 63 L. J. Q. B. 802; 71 L. T. 587 ; 43 
 
 W. E. 129) ... 740, 741, 816 
 
 Lovell !!. Newton (4 C. P. D. 7 ; 39 L. T. 609 ; 27 W. K. 366) 202 
 
 Lovesy v. Smith (15 Ch. D. 655 ; 28 W. E. 979) .... . 151, 152, 297 
 
 Lowe, Me, Danily v. Piatt (61 L. J. Ch. 415 ; 40 W. E. 475) 570, 571 
 
 Lowe i: Fox (15 Q. B. D. 667 ; 54 L. J. Q. B. 561 ; 53 L. T. 886 ; 34 ^\^ K. 144) 
 
 203, 334. 424, 425 
 Lowe ». Griffith (i Scott,.458) ... . . ... 734, 749, 750 
 
 Lowell V. Boston Eailway Co. (23 Pick. 24) . . . 882 
 
 Lowndes, Me (18 Q. B. Dv 677; 56 L. J. Q. B. 425 ; 56 L. T. 575 ; 35 W. E. 549) . . 161 
 
 Lowndes v. Lowndes (15 Ves. 301) . 572 
 
 Lowther v. Bentinck (L. E. 19 Eq. 166 ; 44 L. J. Ch. 197 ; 31 L. T. 719 j 23 W. E. 156) 
 
 654, 655 
 Lucas t). Dixon (22 Q. B. D. 357 ; 58 L. J. Q. B. 161 ; 37 W. 
 
 Lncas v. Lucas (i Atk. 270) 
 
 Luders v. Anstey (4 Ves. 501) .... 
 
 Ludlow, £x parte (2 P. Wms. 638) ... 
 
 Lulham, Me, Briuton v. Lulham (53 L. T. 9 ; 33 W. K. 788) 
 
 Lumb V. Milnes (5 Ves. 517) 
 
 Lumley v. Gye (22 L. J. Q. B. 463 ; 17 Jur. 827 ; 4 El. & Bl. 216) . . . 861, 862 
 
 Lumley, Me, Mx parte Hood Barrs ([1894] 3 Ch. 135 ; 63 L. J. Ch. 897 ; 71 L. T. 7 -, 42 
 
 W. E. 633) 333. 381, 383. 392, 426 
 
 Lumley v. Eavenscroft ([1895] i Q. B. 683; 64 L. J. Q. li. 441 1 72 L. T. 382 ; 43 W. 
 
 K. 584) • ■ • • 734. 738 
 
 Digitized by Microsoft® 
 
 E. 370) . 141, 144 
 
 292, 294 
 
 . 126 
 
 • • • 598 
 
 . 210 
 
liv 
 
 TABLE OF OASES, 
 
 Lumsden's Case {L. E. 4 Ch. App. 31 ; 19 L. T. 437; 17 W. K. 65) 
 
 Lush r. Wilkinson (5 Ves. 387) 
 
 Lush's Trusts, Me (L. E. 4 Ch. App. 591 ; 17 W. E. 974) 
 
 Lygro r. Newbold (9 Exch. 302) 
 
 Lynch, Jle (2 Ch. D. 227 ; 45 L. J. Bk. 48 ; 38 L. T. 34 ; 24 W. E. 375) 
 Lynch v. Nurdin (10 L. J. Q. B. 73 ; i Q. B. 29; 4 P. & D. 672) . 
 
 Lyne, v. (Younge, 562) 
 
 Lynes, lie, Exparte Lester ([1893] 2 Q. B. 113 ; 62 L. J. Q. B. 372 ; 68 L. T 
 
 E. 488) 291. 319. 
 
 Lynn r. Ashton (i E. & M. 190) . ... • • 
 
 Lyon V. Watson (cited Chamb. Inf. p. 32) 
 
 Lyons, lie (22 L. T. 770) 
 
 Lyons r. Blenkin (Jac. 245) . . . . • 
 
 Lyons !•. Martin (8 A. & E. 512) 
 
 Lysaght v. Edwards (2 Ch. D. 409; 45 L. J. Ch. 554 ; 34 L. T. 787 ; 24 W 
 
 M. (/. c. B.) V. B. (L. E. 3 P. & D. 200) • • 
 
 M. (/. c. C.) V. C. (L. E. 2 P. & D. 414 ; 41 L. J. P. M. & A. 37 ; 26 L. T. 321 ; 20 W. 
 
 E. 495) 66, 285 
 
 M. (otherwise D.) v. D. (10 P. D. 75 ; 54 L. J. P. 68 ; 52 L. T. 234 ; 33 W. E, 405) 
 M. V. H. (34 L. J. P. M. & A. 12) . 
 
 MacAdam v. Walker (i Dow, H. L. 148) 
 
 Macaulay v. Pliillips (4 Ves. 19) 
 
 Maccord v. Osborne (i C. P. D. 568 ; 45 L. J. C. P. 727 ; 35 L. T. 164 ; 25 W. E. 9) 
 Macgrcgor v. Macgregor (21 Q. B. D. 424 ; 57 L. J. Q. B. 591 ; 37 W. E. 45) . 291, 437, 440 
 MacHenry v. Davies (L. E. 10 Eq. 88 ; 39 L. J. Ch. 866 ; 22 L. T. 643 ; 18 W. K. 855) 281 
 
 Mackarellr. Bachelor (Cro. Ellz. 583) 747 
 
 Mackay r. Commercial Bank of New Brunswick (L. E. 5 P. C. 31 ; 30 L. T. 180; 22 W. 
 
 K. 473) " .... 883 
 
 Mackay r. Douglas (L. E. 14 Eq. 106 ; 41 L. J. Ch. 539; 26 L. T. 721; 20 W. P.. 652) 
 
 157. 158 
 Mackay v. Ford (29 L. J. Ex. 404 ; 8 W. E. 586 ; 6 Juv. N. S. 587 ; 5 H. & N. 792) . 837 
 
 . 886 
 
 . 71S. 742. 743 
 
 . . . 1S8 
 
 214, 272 
 
 801 
 
 ■ 736 
 . 801 
 
 • 346 
 .739; 41 W. 
 
 33S. 383. 391. 433 
 
 • 29s 
 
 • 506' 797 
 
 • 499. 784 
 496, 498, 504, 505 
 
 . 886 
 . E. 778) . 326 
 
 . 66 
 
 . 66 
 
 • 65 
 30.32 
 . 209 
 . 761 
 
 Mackenzie v. Macleod (10 Bing. 385) .... 
 Mackenzie's Settlement Trusts, lie (L. E. 2 Ch. App. 345 
 
 138; IS W. E. 662) 
 
 Mackic v. Herhertson (9 App. Cas. 303) . 
 
 Mackintosh r. Pogose ([1895] i Ch. 505 ; 64 L. J. Ch. 274 ; 
 
 36 L. J. Ch. 320 ; 16 L. T. 
 
 137. 139 
 148, 160 
 72 L. T. 251; 42 W. E. 247) 
 
 140, 161, 163, 299 
 S3I 
 
 40 L. T. 466 ; 27 W. 
 
 Macklin, Exparte (2 Ves. Sen. 67^) 
 
 Mackonochie v. Lord Penzance (6 App. Cas. 424) 
 
 Maclean v. Cristall (Perry's Oriental Cases, 75) 
 
 Maclean r. Dummett (22 L. T. 710) 
 
 Macpherson, lie, Macpherson v. Macpherson (55 L. J. Ch. 922 ; 55 L. T. 346) 
 
 Macqueen r. Farquhar (i i Ves. 467) 
 
 Maddison r. Chapman (i J. & H. 470) ... 
 
 Maddon v. Wlilte (2 T. E. 159) ... 
 
 Maddox v. Miller (i M. & S. 738) .... 
 
 Magdalen Hospital v. Knotts (4 App. Cas. 324 ; 48 L. J. Ch. 579 ; 
 
 E. 682) 
 
 Maghee r. M'Alister (3 Ir. Ch. Eep. 604) 
 
 Mainwaring r. Leslie (2 C. & P. 507 ; M. & M. 18) 
 
 Mainwaring's Settlement, lie (L. E. 2 Eq. 487 ; 14 W. E. 887J 
 
 Maitland v. Backhouse (16 Sim. 58) 
 
 Maitland r. Irving (15 Sim. 437J 
 
 Makepeace v. Jackson (4 Tauni. 770) 
 
 Malcolm r. O'Callaghan (2 Madd. 349) 
 
 Malcolmsou c. Malcolmson (17 L. E. Ir. 69) 
 
 Male c. Eoborts (3ESP. 163) . 
 
 Mallelicu c. Lyon (i F. & V. 431) . 
 
 Malllnson i: JIallinson (i P. & D. 221 ; 35 L. .). P. M & A. 84 ; 
 
 K. 973) ■ ■ ... . . 
 
 14 
 , III 
 
 763 
 133 
 346 
 202 
 728. 738, 74S 
 748 
 
 721 
 467 
 310 
 
 135 
 
 709 
 
 708 
 
 861 
 
 10 
 
 648 
 
 4S9. 749 
 
 313 
 
 14 L. T. 636 ; 14 W. 
 
 • 492.513 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Iv 
 
 PAGE 
 
 Mauby i: Scott (i Sid. 109) ....... 167, 304, 308, 313, 314, 748 
 
 Manby c. Witt (25 L. J. C. P. 294; 2 Jur. N. S. 1004; 18C. B. 544) . . . .856 
 
 Manchester Union r. Ormskirk Union (24 Q. B. D. 678 ; 59 L. J. M. C. 103 ; 62 L. T. 
 
 661 i 38 W. K. 778) ..579 
 
 Mander t: Harris, 7?e March (27 Ch. D. 166; 54 L. J. Cli. 143; 51 L. T. 380; 32 W. E. 
 
 941) 187, 188 
 
 Manders v. Manders (63 L. T. 627) . . 514 
 
 Mangan v. Atterton (L. K. i Ex. 239 ; 35 L. J. Ex. 161 ; 14 W. E. 771 ; 4 H. & C. 388, 
 
 744) .803 
 
 Manley i: Field (7 C. B. N. S. 96) 560, 562 
 
 Maun r. Barrett (6 Esp. 32) 561 
 
 Mann's Case (L. E. 3 Ch. App. 459) 734, 743 
 
 Mansel ?■. The Attorney-General (2 P. D. 265 ; 46 L. J. P. D. & A. 64 ; 25 W. E. 879) 488 
 
 Mangel's Case (2 Swanst. 536) 606 
 
 Mansfield r. Mansfield, Me Cuno (43 Ch. D. 12 ; 62 L. T. 15) 357, 370 
 
 Mansfield, Earl of, t. Scott (i CI. & F. 319) . . 864 
 
 Manvell v. Thompson (2 C. & P. 303) , 561 
 
 Mara t'. Manning (8 Ir. Eq. 218 ; 2 Jo. & Lat. 311) 367 
 
 March, Me, Mander v. Harris (27 Ch. D. 166; 54 L. J. Ch. 143 ; 51 L. T. 380 ; 32 W. 
 
 E. 941) 187, 188 
 
 March r. March (L. E. i P. & D. 437 ; 36 L. J. P. M. & A. 65) . . 164, 504, 513 
 
 Marcon's Estate, Me (W. N. 1871, 148) 689 
 
 Marett, Me, Chalmers v. 'Wingfleld (36 Ch. D. 400 ; 57 L. T. 896 ; 36 W. K. 344) . . 456 
 
 Margetts v. Barringer (7 Sim. 481) ... 347 
 
 Margrett, Ex parte, Me Soltykofl ([1891] i Q. B. 413 ; 60 L. J. Q. B. 339 ; 39 W. E. 
 
 337 ; SS J- P- 100) 726, 749, 752 
 
 Marlborough's Settlement, Me Duke of, Duke of Marlborough u. Majoribanks (30 Ch. D. 
 
 127; 54 L. J. Ch. 833; S3 L. T. 216; 33 W. E. 871) 669,670 
 
 Marlow »-. PitfeUd (i P. Wms. 558) . . 652, 752 
 
 Marsh v. Marsh (28 L. J. P. M. & A. 13 ; 32 L. T. O. S. 197; 5 Jur. N. S. 46 ; i Sw. & 
 
 Tr. 316) 512 
 
 Marshall v. Holloway (2 Swanst. 436) 640 
 
 Marshall v. Marshall (5 P. D. 19 ; 48 L. J. P. D. & A. 49 ; 39 L. T. 640 ; 27 W. E. 379) 437, 439 
 Marshall v. Murgatroyd (L. E. 6 Q. B. 31 ; 40 L. J. M. C. 7 ; 32 L. T. 393 ; 19 W. E. 
 
 72) ^ 581 
 
 Marshall v. Button (8 T. E. 545) 278, 284, 438 
 
 Marshall v. Smith (34 L. J. Ch. 189 ; 11 L. T. 443 ; 13 "W. E. 198 ; 10 Jur. N. y. 1174) 227 
 
 Marsland, Me (55 L. J. Ch. 581 ; 54 L. T. 635 ; 34 W. E. 540) 213 
 
 Marston v. Hoe (dem. Fox) (8 Ad. & El. 14) 242 
 
 Martano v. Mann (14 Ch. D. 419; 49 L. J. Ch. 510; 42 L. T. 890) .... 332 
 Martin r. Foster (25 L. T. O. S. 5 ; 3 W. E. 339 ; 7 De G. M. & G. 98) . 790, 791, 793 
 
 Martin v. Gale (4 Ch. D. 428 ; 46 L. J. Ch. 84 ; 36 L. T. 357 ; 25 W. E. 406) 
 
 726, 740, 745, 752 
 Martin v. Martin (29 L. J. P. M. & A. 106 ; 2 L. T. 118 ; 8 W. E. 367) . . .513 
 
 Martin v. Martin (L. E. i Eq. 369 ; 14 W. E. 421) ... . 639, 645, 653 
 
 Martin v. MitcheU (2 J. & W. 413) 
 Martindale v. Martindale (i Jur. N. S. 932; . 
 Maskell and Goldfinch's Contract, Me ([1895] 
 
 836 ; 43 W. E. 620) .... 
 Mason i: Day (Prec. Ch. 319) .... 
 Mason v. MitcheU (3 H. & C. 528) . 
 Massey v. Parker (2 Myl. & K. 174) 
 Massy V. Eowen (L. E. 4 H. L. 288 
 Mather v. Ney (3 M. & S. 265) 
 Mathew v. Brise (14 Beav. 341) 
 Mathewman's Case, Mrs. (L. E. 3 Eq. 781 ; 36 L. J. 
 
 23 L. T. 141) 
 
 Mathews, Me (12 Ir. C. L. 233) 
 Matthews v. Brise (6 Bear. 239) 
 Matthews v. Whittle (13 Ch. D. 811 ; 
 
 Ch. 525 ; 64 L. J. Ch. 678 ; 72 1 
 
 740 
 
 591 
 
 351 
 
 347 
 
 347 
 
 67 
 
 584, 600, 614, 659, 703 
 
 Ch. 90; 15 W. E. 146) 
 
 265, 285, 323, 324 
 
 597 
 
 689 
 
 49 L. J. Ch. 359; 43 L. T. 114; 28 W. E. 822) 
 
 259, 267, 268, 427 
 
 Digitized by Microsoft® 
 
Ivi TABLE OF CASES. 
 
 PAGE. 
 
 Maudslay v. Mauclslay (2 P. D. 256 ; 47 L. J. P. D. & A. 26 ; 38 L. T. 323) . . . 164 
 Maun4 V. Mason (L. E. 9 Q. B. 254 ; 43 L- J- M. C. 62 ; 28 L. T. 837 5 22 W. E. 265) 517 
 
 Maunder v. Conyeis (2 Stark. 281) • ■ ^" 
 
 Maunder v. Venn (M. & M. 323) 5 ^ 
 
 Maunsell v. White (4 H. L. Cas. 1039) . ^^ 
 
 MawBon v, Blane (10 Exch. 206) ... *, '59 
 
 May, Me, Crawford v. May (45 Ch. D. 499 ; 60 L. J. Ch. 34 ; 63 L. T. 375 ; 38 W. K. 765) 298 
 
 May V. May (33 Beav. 81) 537> S39 
 
 Mayd v. Field (3 Ch. D. 587 ; 45 L. J. Ch. 699 ; 34 L. T. 614 ; 24 W. E. 660) 
 
 132, 281, 348, 374, 394. 395- S4I 
 
 Mayer, lie (40 L. J. C. P. 239 ; 24 L. T. 273 ; 19 "W. E. 641) 19° 
 
 Mayhew v. Mayhew (2 Plilll. 11) 9^ 
 
 Mayor v. CoUlns (24 Q. B. D. 261 ; S9 L. J. Q. B. 199 ; 62 L. T. 326 ; 38 W. K. 349) 
 
 810, 818 
 
 McCarthy v. Deoaix (2 Euss. & M. 614) 83, 469 
 
 McClellan, .BxiJffirteCiDowl. 81) 493 
 
 McCormack «. McCormack (I Ir. Ch. D. 119) 'S^ 
 
 McCreight, He, Paxton v. McCreight (30 Ch. D. 165 ; SS L- J- Ch. 28 ; 53 L. T. 146 ; 33 
 
 W. E. 838) ' 487 
 
 McCielght V. MoCreight (13 Ir. Eq. Eep. 314) . ■ 691 
 
 McGeorge v. Egan (7 Sc. Eep. 112) 279 
 
 McGrath (Infants), Be ([1893] i Ch. 143 ; 62 L. J. Ch. 208 ; 67 L. T. 636 ; 41 W. E. 97) 
 
 502, 503, 510, 524, 603, 785 
 McHenry r. Davies (L. E. 10 Eq. 88 ; 22 L. T. 643 ; 18 W. E. 855) . . . .281 
 
 McKey, £:a;;;o>-«e(i Ba. & B. 405) 506,656,749,798 
 
 M'Laughlin v. Prior (4 M. & G. 88 ; 4 Sc. N. E. 655) 883 
 
 M'Lean v. Longlands (5 Ves. 79) 203, 405 
 
 M'Mahon v. M'Mahon (2 Sw. & Tr. 230) 97 
 
 M'Manus v. Crlckett (i East, 106) 884, 886 
 
 M'Mullen v. Wadsworth (11 App. Cas. 631) 455 
 
 McMyn, Be, Lightbown v. McMyn (33 Ch. D. 575 ; 55 L. J. Ch. 843 ; 35 W. E. 179) 276, 397 
 
 M'Norton v. Caledonian Eailway Co. (28 L. T. 376) 871 
 
 Meacher v. Young (2 Myl. & K. 490) 649 
 
 Meades, iJe (5 Ir. Eq. 98) 526 
 
 Meadows v. Meadows (16 Beav. 401) . . . 538 
 
 Meager v. Pellew (14 Q. B. D. 973 ; 53 L. T. 67 ; 33 W. E. 471) .... 335, 433 
 Meakin v. Morris (12 Q. B. D. 354 ; 53 L. J. M. C. 72) . . 733, 754, 755, 830, 845, 846 
 
 Mecredy v. Taylor (7 Ir. Eep. C. L. 256) 316, 520 
 
 Meddowcroft v. Gregory (2 Phill. 365) 93 
 
 Medley, Be (6 Ir. Eep. Eq. 339) .... . .... 797 
 
 Medlock, Be, Euffle v. Medlock (55 L. J. Ch. 738 ; 54 L. T. 828) . . . 641, 645, 646 
 Medway Union, Guardians of the, v. Guardians of the Bedminster Union (14 App. Cas. 
 
 465 ; 59 L. J. Q. B. 29 ; 61 L. T. 733 ; 38 W. E. 295) 175 
 
 Meek v. Chamberlain (8 Q. B. D. 31 ; 51 L. J. Q. B. 99 ; 46 L. T. 344 ; 30 W. E. 228) . 231 
 
 Melling v. Melling (4 Madd. 261) 813 
 
 MeUish v. Da Costa {2 Atk. 14) . . 599 
 
 Mellish V. MelUsh (i L. J. Ch. 120; 1 Sim. & St. 138) .... 612, 700, 704, 710 
 
 Mellor V. Porter (25 Ch. D. 158) 730, 731 
 
 Mellor's Policy Trusts, Be (7 Ch. D. 200) . 322, 323 
 
 Mendes, Be (i Ves. Sen. 91) . 712 
 
 Mendes v. Mendes (i Ves. Sen. 91 ; 3 Atk. 624) . . . 598, 601, 623, 624 
 
 Mercer v. Whall (14 L. J. Q. B. 267 ; 9 Jur. 576 ; 5 Q. B. 447) 849 
 
 Meroier v. Williams (9 Q. B. D. 337 ; 10 App. Cas. i ; 51 L. J. Q. B. 594 ; 47 L. T. 
 
 140 ; 30 W. E. 720) 407,429 
 
 Meredith v. Footner (12 L. J. Ex. 183; 11 M. & W. 202) .... 246, 304 
 
 Merryweather v. Jones (4 GifE. 509) 773 
 
 Messenger v. Clarke (19 L. J. Ex. 306 ; 5 Exch. 38S ; 14 Jur, 748) . 348, 399 
 
 Mette V. Mette (28 L. J. P. M. & A. 117 ; 3 L. T. 139 ; i Sw. & Tr. 416) 79, 460, 462 
 
 Mews V. Mews (15 Beav. 529) . . . 207, 293 
 
 Miall V. Brain (4 Madd. 125) 225 
 
 Michael v. Alestree (2 Lev. 172 ; i Ld. Eaym. 739 ; 2 Salk. 441) ... . 881 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ivii 
 
 Miohael's Trusts, lie (46 L. J. Ch. 651) 
 
 Michell V. Mlchell ([i8gi], P. 208 ; 64 L. T. 6oy ; 39 \V. E. 680) . 
 
 Middlebury College v. Chandler (16 Vt. 683) 
 
 Middleton, In the Goods of (14 P. D. 23 ; 58 L. J. P. 28 ; 60 L. T. 237) 
 
 Middleton i: Fowler (i Sali. 282) 
 
 Middleton v. Janverln (2 Hag'. Con. E. 437) 
 
 Mldgley v. Wood (30 L. J. P. M. & A. 57 ; 4 Sw. & Tr. 267) . 
 
 Midwinter v. Midwinter ([1892], P. 28 ; 61 L. J. P. D. i ; 65 L. T. 438 ; 40 W. E, 
 
 20 W. E. 324) 
 
 . E, 
 
 PAGE 
 • • 388 
 
 164, 388, 451 
 ■ 748 
 • 237 
 
 . 886 
 . 106 
 91,92 
 
 33) 
 
 163-165 
 . 269 
 80, 81 
 . 667 
 
 520 
 
 134 
 726 
 877 
 598 
 
 383. 
 
 432 
 845 
 792 
 896 
 114 
 
 757 
 210 
 
 661, 720, 771, 772 
 386 
 206 
 870) . 803 
 272, 772, 778 
 . 292 
 
 . 114. "S 
 . 212 
 
 Miell V. English (15 L. T. 249) .... 
 
 Miles V. Chilton (1 Eob. 684) 
 
 Miles V. Jarvis (W. N. 1883, 203) .... 
 Milford ». MUford (L. E. I P. & D. 715) 
 Millord V. Peile (2 W. K. 181 ; 17 Beav. 602) . 
 Miller v. BlanMey (38 L. T. 527) .... 
 Miller f. Hamilton (5 C. & P. 433) .... 
 Miller i>. Harris (14 Sim. 540) .... 
 
 Miller v. Miller (L. E. 13 Eq. 263 ; 41 L, J. Ch. 291 
 
 Miller v. Miller (L. E. 2 P. & M. 54) 
 
 Millershlp v. Brookes (29 L. J. Ex. 369 ; 5 H. & N. 797)' 
 
 Millett V, Eouse (7 Ves. 419) 
 
 Milligan v. Wedge (12 Ad. & E. 737) 
 
 Millington v. Lorlng (6 Q. B. D. 214 ; 43 L. T. 657 ; 29 W. E. 207)' 
 
 MUls V. Graham (i B. fc P. N. E. 140) 
 
 Milner v. Cobner (2 P. Wms. 639) 
 
 Milner v. Lord Horewood (18 Ves. 259) .... 
 
 Mllner's Settlement, Be ([1891] 3 Ch. 547; 65 L. T. 310 ; 40 W. E. 76) 
 
 MUnes ». Milnes (3 T. E. 631) 
 
 Mills V. Armstrong (13 App. Cas. i ; 57 L. J. P. 65 ; 58 L. T. 423 ; 36 W. 
 MUls V. Fox (37 Ch. D. 153 ; 57 L. J. Ch. 56 ; 57 L. T. 792 ; 36 W. E. 219) 
 
 MiIroy». Z,ord(4De G. F. & J. 264) . 
 
 Millward v. Littlewood (20 L. J. Ex. 2 ; 5 Exch. 775) .... 
 Minet v. Hyde (2 Bro. C. C. 663) .... .... 
 
 Mires v. Solebay (3 Mod. 342) 
 
 Mirfln, Jie (4 M. & G. 635) . '. 
 
 Mitchell, Sx parte (2 Atk. 173) 
 
 Mitchell, iJe (9 Ch. D. 5 ; 38 L. T. 462 ; 26 W. E. 762) 
 
 Mitchell V. Crassweller (22 L. J. C. P. 100 ; 17 Jur. 716 ; 13 C. B. 237) 
 
 MltcheU V. Homlray (8 Q. B. D. 587 ; 50 L. J. Q. B. 460 ; 45 L. T. 694 ; 29 
 
 Mitchinson v. Hewson.(7 T. E. 348) 
 
 Mltlord V. Eeynolds (16 Sim. 131) 
 
 Mizen v. Pick (3 M. & W. 481) .... ... 
 
 Molony v. Kennedy (10 Sun. 254) ... .... 
 
 Molton V. Camroux (i8 L. J. Ex. 356 ; 4 Exch. 17) ... 
 
 Monck V. Monck (i B. & B. 303) . 
 
 Money v. Money (3 Dr. 256) 
 
 Moneypenny v. Bering (33 L. T. O. S. 159 ; 7 W. E. 439 ; 4 De G. & J. 175) 
 
 Monkman v. Shepherdson (11 A. & E. 411) 
 
 Monro v. De Chemant (4 Camp. 215) 
 
 Monroe v. Twistleton (Peake, Add. Cas. 221) . ■ . . . 
 
 Monsell v. Armstrong (L. B . 14 Eq. 423 ; 41 L. J. Oh. 715 ; 27 L. T. 407) 
 
 Montacnte v. Maxwell (i P. Wms. 6i8j 
 
 Montague v. Baron (5 D. & E. 532) 
 
 Montague v. Benedict (3 B. & C. 631) 302, 30^^, 308, 316 
 
 Montague v. Espinasse (i C. & P. 356, 502) . . 308 
 
 Montague v. Sandwich (Earl of) (32 Ch. D. 525 ; 55 L. J. Ch. 925 ; 54 L. T. 502) 540, 541 
 
 Montefiore v. Behrens (L. K. i Eq. 171 ; 35 Beav. 95) 140 
 
 Moon i>. Towers (8 C.B.N. S. 611) 5^4 
 
 Moor V. Lacy (Macph. Inf. App. III., p. viii.) ... 653 
 
 Moore, JJe (11 Ir. C. L. i) 494. S97 
 
 Moore, In the Goods of ([1891] P. 299 ; 60 L. J. P. 98) . 235 
 
 3". 
 
 191 
 
 79° 
 
 138 
 
 885, 887, 888 
 
 W. E. 558) 706 
 
 . 268 
 
 153 
 312 
 
 • 231 
 . 830 
 
 • 542 
 793- 794 
 
 • 729 
 . 863 
 
 313 
 246 
 602 
 144 
 308 
 
 304. 
 
 Digitized by Microsoft® 
 
Iviii TABLE OF CASES. 
 
 PAGE 
 
 Moore, Be, Trafford v. Maoonochie (39 Ch. D. 116 ; 57 I- J- Ch. 936 ; 59 L. T. 681 ; 37 
 
 W. E. 83) ^°' " 
 
 Moore v. Moore (12 P. D. 193 ; 56 L- J- P- 104 ; S7 L. T. 568 ; 36 W. K. no) . . 4S0 
 
 Moore v. Morris (4 Dr. 33) 349' 377 
 
 Moore v. Smith (39 J. P. 772) 7S» 
 
 Moore v. Webster (L. E. 3 Eq. 267 ; 36 L. J. Ch. 429 ; 15 L. T. 460 ; 15 W. B. 167 ) . 217 
 
 Moore v. Wright (39 J. P. 772) .848 
 
 Moore (/. c. Bull) v. Bull ([1891] P. 279 ; 60 L. J. P. 76) i^S 
 
 Morgan v. Chetwynd (4 F. & F. 451) 3I4 
 
 Morgan v. Dillon (9 Mod. 135) ... . ^^9' ^^ 
 
 Morgan v. HatcheU (24 L. J. Ch. 135 ; 24 L. T. O. S. 167 ; 3 W. E. 126 ; 19 .lur. 125 ; 
 
 ig Bear. 86 ; 3 Bq. Sep. 121) 59^ 
 
 Morgan ». Morgan (1; Madd. 408) ^'7 
 
 Morgan v. Morgan (i Atk. 489) S^? 
 
 Morgan v. Swansea Urban Sanitary Authority (9 Ch. D. 582 ; 27 W. E. 283) . . 326 
 
 Morgan v. Thome (7 M. & W. 400) • 7"i 7^8 
 
 Morgan v. Vale of Neath Eailway Co. (L. E. i Q. B. 149 ; 35 L. J. Q. B. 23 ; 13 L. T. 
 
 564 ; 14 W. E. 144 ; s B. & S. 736) 870 
 
 Morley v. Eennoldson (2 Ha. 570 ; [1895] i Ch. 449 ; 64 L. J. Ch. 485 ; 72 L. T. 308 ; 
 
 43 W. E. S18) 9- lo 
 
 Morrall v. MorraU (6 P. D. 98 ; 50 L. J. P. D. & A. 62 ; 47 L. T. 50 ; 29 W. E, 897) . 441 
 Morrieson, Re, Hitchins v. Morrieson (40 Ch. D. 30 ; 58 L. J. Ch. 80 ; 59 L. T. 847 ; 
 
 37 W. E. 91) 447 
 
 Mon-is, In the Goods of (31 L. J. P. M. & A. 80 ; 5 L. T. 768 ; 2 Sw. & Tr. 360) . . 600 
 
 Morris v. Davies (5 CI. & F. 163) 6, 477, 479, 483 
 
 Morris v. Martin (Stra. 647) 2i^^ 
 
 Mon-is V. Miller (4 Buit. 2057) 82 
 
 Morris v. Morris (6 W. E. 493 ; 4 Jur. N. S. 802) .... ... 665 
 
 Morrison v. Dobson (8 Comt Sess. Cas. (3rd Series) 347) 34 
 
 Morse ■». Eoyal (12 Ves. 355) • • 702 
 
 Mortara v. Hall (6 Sim. 465) 75^ 
 
 Mortimer v. Mortimer (2 Hag. Con. Eep. 318) 43& 
 
 Mortimer v. West (i Swanst. 358) 812 
 
 Mortimore v. Wright (4 Jur. 465 : 6 M. & W. 482) ... . 518, 519, 577 
 
 Mosley v. Ward (n Ves. 581) 689 
 
 Mounsey v. Buston, Be L'Herminier ([1894] i Ch. 675 ; 63 L. J. Ch. 496 ; 70 L. T. 
 
 727) 372 
 
 Montaeue v. Maxwell (i Stra. 236) ... 116 
 
 Mountford, Ex parte (15 Ves. 445) 504, 605, 64S 
 
 Mountstuart v. Mountstuart (6 Ves. 363) , 797 
 
 MuUins V. Collins (L. E. 9 Q. B. 292 ; 43 L. J. M. C. 67 ; 29 L. T. 838 ; 22 W. E. 297) 889 
 Munday v. Dyer ([1895] i Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T. 448 ; 43 W. E. 440) 886 
 
 Mundy v. Earl Hpwe (4 Bro. C. C. 223) 649, 652 
 
 Mundy v. Mundy (4 Bro. C. C. 294) 222 
 
 Monro v. Munro (7 CI. & F. 842) ... 484, 485, 487 
 
 Munroe v. Twistleton (Peake, Add. Cas. 221) ... .... 246 
 
 Munt V. Glynes (41 L. J. Ch. 639 ; 21 W. E. 823) . 377 
 
 Murgatroyd's Case (28 L. T. 105) 266 
 
 Murphy, Ex parte (i Sch. & Lef. 44) . . 140 
 
 Murphy v. Phillips (35 L. T. 477 ; 24 W. E. 647) .... . , . 873 
 
 Murphy v. Smith (12 L. T. 605 ; 19 C. B. N. S. 361) .... . . 873 
 
 Murray, 7?e (3 Dr. & W. 83) 789, 794 
 
 Murray v. Elibank (10 Ves. 84 ; 13 Ves. i) 207, 208, 213 
 
 Mnrrell v. Chapman (8 Sim. 74) 811 
 
 Musgrave v. Sandeman (48 L. T. 215) 388 
 
 Nail ». Punter (5 Sim. JSS) 395 
 
 Nalder v. Hawkins (2 Myl. & K. 243) . . 811 
 
 Nanney v. Martin (i Eq. Cas. Abr. 68) . . . 200 
 
 Nanney v. Williams (22 Beav. 452) . die, 806 
 
 Nares, In the Goods of (13 P. D. 35 ; 57 L. J. P. 19 ; 58 L. T. 529 ; 36 W. U. 528) 237, 473 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 lix 
 
 PAGE 
 
 Nash V. Nash (2 Madd. 133) 200 
 
 Nash's Settlement, Ite (51 L. J. Ch. 511 ; 46 L. T. 97 ; 30 W. E. 406) .... 132 
 
 Nassau Phosphate Co. , /Je (2 Ch. D. 610 ; 45 L. J, Ch. 584 ; 24 W. K. 692I . . . 742 
 Natt, Me, Walker v. Gammage (37 Ch. D. 517 ; S7 L. J. Ch. 797 ; 58 L. T. 722 ; 36 \Y. K. 
 
 548) 554 
 
 Nayler r. Strode (2 Ch. Eep. 392) . . 740 
 
 Neal's Case, Sit Paul (Free. Ch. 45) 405 
 
 Needham r. Bremuer (L. R. i C. P. 583 ; 35 L. J. C. P. 313 ; 14 L. T. 347 ; 14 W. E. 
 
 694) 3" 
 
 Needham ^•. Smith (6 Beav. 130) .... 817 
 
 Negus V. Fprster (46 L. T. 675) 443, 444 
 
 Nelson v. Stocker (32 L. T. O. S. 368 ; 4 De G. & J. 458) .... 734, 776 
 
 Nevll r. Saunders (Vem. 415) . . . 342 
 
 Neville r. Baker (4 Times E. 674) 426 
 
 Neville v. Wilkinson (i Bro. C. C. 543) ... ... . . 11 
 
 Nevin, Re ([1891] 2 Ch. 299 ; 60 L. J. Ch. 542 ; 65 L. T. 35) . . 502, 524, 603, 784 
 
 Newbery, Be (L. K. i Ch. App. 263 ; 35 L. J. Ch. 330 ; 13 L. T. 557 ; 780 ; 14 W. E. 
 
 360 ; 12 Jur. N. S. 20, 154) . . . . 495i 523. 5^7 
 
 Newbery r. Marten (.16 L. T. O. S. 482 ; 15 Jur. 166) ... ... 73° 
 
 Newcastle's Estates, lie Duke of (24 Ch. D. 129 ; 52 L. J. Ch. 645 ; 48 L. T. 779 ; 
 
 31 W. B. 782) 670, 683 
 
 NewlU r. Newill (L. R. 7 Ch. App. 253 ; 45 L. J. Ch. 432 ; 26 L. T. 75 ; 20 W. R. 308) 322 
 
 Newlands v. Painter (4 Myl. & Cr. 408) 377 
 
 Newman v. Jones (17 Q. B. D. 132 ; 55 L. J. M. C. 113 ; 55 L. T. 327 ; 50 J. P. 373) . 8S9 
 Newport v. Moore (Dick. 106) .... . . ... 796 
 
 Newry and Enniskilleu Railway Co., v. Coombe (18 L. J. Ex. 325 ; 5 Exch. 565) . 742, 743 
 
 279 
 148 
 649 
 172 
 
 Newsome i: Bowyer (3 P. Wms. 37) 
 Newstead v. Searles (i Atk. 265) 
 Newton r. Curzon (16 L. T. 696) 
 Newton v. Batten (2 Ld. Raym, 1208) 
 
 Newton v. Marsden (2 J. & H. 356) 10 
 
 Niboyet v. Niboyet (4 P. D. i ; 48 L. J. P. D. & A. i ; 39 L. T. 486 ; 27 W, E. 203) 
 
 167,468,471,472,473 
 
 Nichole v. Allen (3 C. & P. 96) 519. 577 
 
 Nicholson v. Drury Buildings Estate Co. (7 Ch. D. 48 ; 47 L. J. Ch. 192 ; 37 L. T. 459 ; 
 
 26 W. E. 76) 199. 200 
 
 Nicholson v. Squire (i5 Ves. 259) , . . . 
 
 Nicksonv. Brohan (lo Mod. 109) , . ' . 
 
 Nicol V. Martyn (2 Esp. 734) ... ... 
 
 Nicol V. Nicol (31 Ch. D. 524 ; S5 L. J. Ch. 437 ; 54 L. T. 470 
 
 34 W. K. 83) 
 10 li. T. S31 ; 12 W. E. 961 ; 10 Jur. N. S 
 
 28 W. K. 720) 
 
 89.94 
 , 877 
 . 862 
 ■ 443 
 
 919: 
 
 Nicoll V. Graves (33 L. J. C. P. 259 
 
 17 C. B. N. S. 27) . 
 Norbone's Case (Freem. Ch. 282) 
 Notbury, Me Lord (9 Ir. Eq. 134) . 
 Norbury v. Norbury (4 Madd. 191) . 
 Noel V. Noel (13 Ch. D. 510; 42 L. T. 352 
 Norman v. Villars (2 Ex. D. 359 ; 46 L. J. Ex. 579 ; 36 L. T, 
 Northcote v. Doughty (4 C. P. D. 385) 
 
 Northey v. Northey (2 Atk. 77) 4°6> 407 
 
 North Western Railway Co. v. McMichael (20 L,. J. Ex. 97 ; 15 Jur. 132 ; 5 Exch. 114) 
 
 739, 740, 742, 743, 764, 765, 767 
 Northvpich Union v. St. Pancras Union (22 Q. B. D. 164 ; 58 L. J. Q. B. 73 ; 60 L. T, 
 
 444 ; 37 W. E. 206) 
 
 Norton, Ex parte (8 De G. M. & G. 258 ; 20 Jur. 479) 
 Norton v. Fazan (i B. & P. 226; .... 
 
 Norton v. Seton (3 Phill. 147) 
 
 Norton v. Turvill (2 P. Wms. 144) 
 
 . 824 
 . 198 
 598, 600 
 • 679 
 164, 332 
 25 W. E. 780) . 331 
 • 734. 736, 744 
 
 579 
 207 
 310 
 
 63 
 288, 392 
 
 Nottingham, ^XiHwie, Me TufE (19 Q. B. D. 88; 56 L. J. Q. B. 440; 56 L. T. 573; 35 
 
 W. R. 373) ■ ■ ■ ■ ■„ ^^^ 
 
 Nottingham Union, Guardians of, 0. Tomkinson (4 C. P. D. 343 ; 48 L. J. M. C. 171 ; 28 
 
 W E. 151) 478, 489. 567 
 
 Digitized by Microsoft® 
 
\x 
 
 TABLE OF OASES. 
 
 Nowlau V, Ablett (2 C. M. & E. 54). . . ■ .- - . • 
 Noyes v. roUock (33 Ch. D. S3 ; SS I" J- Ct. S'S: 54 ^- T. 473 i 
 Nugent !'. Vetzera (L. E. 2 Eq. 704 ; 14 W. K. 960) 
 Nunu V. Ladbroke (8 T. E. 521) 
 
 34 W. E. 383) 
 
 Nunneley jj.-Nnnneley (15 P. D. 186 ; 63 L. 'I 
 Nurse v. Craig (2 N. E. B. & P. 148) 
 
 O'Brien v. Maitland (10 W. E. 275) 
 O'Byi-ne v. Bui'u (16 Sec. Ser. 1025) 
 Occleston v. Fullalove (L. K. 9 Ch. App. 147 ; 
 
 305) 
 
 O'Connor v. Majoribanks (4 M. & G. 435) 
 Offley V. Clay (3 Scott, N. E. 372 ; 2 JI. & G. 
 Ogden V. LancasMre (15 W. E. 158) 
 Ogle V. Morgan (i De G. M. & G. 359) 
 O'Halloran v. King, Se Bown (27 Ch. D. 411 
 
 113) 
 
 43 L. J. Cb. 297 ; 29 
 
 72 ; 4 Jur. 1203) 
 
 S3 L. J. Cb. 881 ; so L- T. 796) 
 
 L. T. 780 ; 22 
 
 PAGE 
 
 . 824 
 . 226 
 6o3, 609 
 • 445 
 . i6s 
 . 312 
 
 817 
 873 
 
 W. E. 
 
 376, 
 
 O'Keefe v. Casey (i Sob. & Let 106) 
 Oland's Case (5 Eep. 116 ; Cro. Eliz. 460) 
 Oldfield, Re (2 MoU. 291) 
 Oldiu V. Sambourn (2 Atk. 15) 
 Olding V. Smith, (16 Jur. 497) 
 Olivant, Jle, Haslam v. Cron (19 W. E. 968) 
 Oliver v. Oliver (i Hag. Con. Eep. 361) . 
 Oliver v. Woodroffe (4 M. & W. 650) 
 O'Malloy, He (8 Ir. Ch. Eep. 172) . 
 Onslow, Me, Ex parte Kibble (L. E. 10 Ch. App. 373 ; m'L. 3 
 W.E.433) 
 
 Onslow, Be, Plowden «. Garyford (39 Ch. D. 622 ; 57 L. J. Ch. 
 
 W. E. 883) . . 
 
 Oppenheim v. Schweder, Be Schwcder's Estate ([1891] 3 Ch. 
 
 L. T. 64 : 39 W. E. 588) . 
 Ord V. Blackett (9 Mod. 116) . 
 Or&rd V. Hart, (W. N. 1883, 164) . 
 Orme, Re, Evans v. Maxwell (so L. T. si) 
 Ormond v. Holland (El., Bl. & El. 102) 
 O'Eeilly v. Glavey (32 L. E. Ir. 316) 
 O'Eorke v. Bolingbroke (2 App. Cas. 814 ; 26 W. E. 239) 
 OiT ti. -Newton (2 Cox, Eq. Cas. 274) 
 Osborn v. Gillett (L. E. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 28 L, T. 
 
 Bk. 
 
 940 
 
 44; 
 
 • 571 
 . 246 
 
 202, 829 
 . S6i 
 
 • 82s 
 
 378, 382 
 626 
 221 
 698 
 710 
 
 476 
 
 167 
 
 592. 725 
 
 • 526 
 63 ; 32 L. T. 138 ; 23 
 
 736, 737 
 36 
 
 357. 374 
 65 
 
 • 295 
 S74, 606 
 
 217 
 
 545. 640 
 
 ■ 873 
 
 . 561 
 
 • 550 
 . .688 
 
 S9 L. T. 308 ; 
 
 • 137. 
 60 L. J. Ch. 656 i 
 
 544. 
 
 16 Jur. 52 ; 9 Ha. 432) 
 
 C. P. 424 ; 38 L. T. 925 i 26 W, 
 
 Osborn v. Morgan (21 L. J. Ch. 318 
 
 Otley V. Manning (9 East, 59) 
 
 Ottaway v. Hamilton (3 C. P. D. 393 ; 47 L. J. 
 
 783) 
 
 Otway V. Otway (13 P. D. 141 ; S7 L. J. P. 81 ; 59 L. T. IS3) 
 Outwin's Trusts, Re, (48 L. T. 410 ; 31 W. E. 374) 
 
 Overton v. Bannister (3 Ha. 503) 
 
 Owens V. Dickenson (Cr. & Ph. 48 ; 4 Jur. 1151) . 
 Oxendon v. Lord Compton (2 Ves. 71 ; 4Bro. C. C. 231) 
 Oxenham v. Gayre (Bao. Abr. Mar. & Div. A.) 
 Ozard v. Durnford (Selw. N. P. 229) ... 
 
 197 ; 21 W. E. 409) 
 172, 562, 
 
 234. 
 
 564, 862 
 198, 210 
 
 • 154 
 E. 
 
 • 315 
 315. 316 
 
 • 423 
 703. 725 
 280, 39S 
 
 ■ 613 
 
 • 79 
 
 • 3" 
 
 P. V. L. (/. c. P.) (cited, 3 P. D. 72) . ... 
 
 Packer, Re (L. E. 5 C. P. 424 ; 43 L. J. C. P. 245 ; 30 L. T. 471 ; 22 W. E. 6S3) . 
 Packer v. Packer (i Coll. 92) .... . . 
 
 Paddon v. Eichardson (26 L. T. O. S. 33 ; 7 De G. M. & G. 536) 
 
 Pagani 1). Pagani (L. E. i P. & D. 223 ; 3s L. J. P. 31. & A. 87 ; 14 L. T. 706 ; is W. E. 
 23) • • • • . .... 
 
 Page r. Home (11 Beav. 227) . 
 
 Paget V. Eead (i Vern. 143) . . . 
 
 64 
 190 
 212 
 690 
 
 79 
 153 
 274 
 
 Digitized by Microsoft® 
 
TABLE OF OASPS. 
 
 Ixi 
 
 PAGE 
 671 
 
 Paine's Trusts, Re (28 Ch. D. 725 ; 54 L. J. Ch. 735 ; 52 L. T. 323 ; 33 W. R. 564) 
 Palliser v. Gurney (19 Q. B. D. 519 ; . 56 L. J. Q. B. 546 ; 35 W, E. 760) 
 
 286, 288, 290, 361, 382, 391, 395, 430 
 Palmer, Be (L. E. 19 Eq. 320 ; 44 L. J. Ch. 247 ; 32 L. T. 9 ; 23 W. E. 478) . . 142 
 
 Palmer i\ Flower (L. K. 13 Eq. 250 ; 41 L. J. Ch. 193 ; 23 L. T. ^16 ; 20 AV. E. 174) . 655 
 
 T. 77 
 
 • & A. 35 
 
 26 
 
 Palmer v. Wakefield (3 Beav. 227) 
 
 Palmer v. Wheeler (2 Ba. & B. 18) . 
 
 Palmer v. Wright (10 Beav. 234) 
 
 Palmes i\ Danby (Preo. Ch. 137) 
 
 Pankhurst v. Howell (L. E. 6 Cli. App. 136 ; 19 AV. K. 3x2) 
 
 Pannell v. Jamiesou, lie Jamieson (60 L. T. 159 ; 37 W. E. 464) 
 
 Pape V. Pape (20 Q. B. D. 76 ; 57 L. J. Q. B. 3 ; 58 L. T. 399 ; 36 W. E. 12, 
 
 Parker v. Brooke (9 Yes. 583) . 
 
 Parker v. Carter (4 Ha. 400) . . . . 
 
 Parker v. Ibhetson (27 L. J. C. P. 236) . 
 
 Parker i\ Lechmere (12 Ch. D. 256 ; 28 W. E. 48) . 
 
 Parker v. Marchaut (6 Jur. 292 ; i Y. & G. N. S. 290) 
 
 Parker v. Parker (2 Lee. 382) . ... 
 
 Parkes v. White (11 Yes. 209) . ... 
 
 Parkin, 7Je,HUl v. Schwarz ([1892], 3 Ch. 510 ; 62 L. J. Ch. 55 ; 67 L. 
 
 120) .... 
 Parkinson v. Parkinson (69 L. T. 53) 
 ParneU, In the Goods of (L. E. 2 P. & D. 379 ; 41 L. J. P. M. 
 
 20 W. E. 494) 
 
 Parnell v. Pamell (2 Hag. Con. E. 169) 
 
 Pamell v. Steadman (i Cab. & Ell. 153) .... 
 
 Parry v. Hodgson (2 Wils. 129) 
 
 Parsons, Re, Stockley r. Parsons (45 L. J. Ch. 51) . , 
 
 Parson's Case (L. E. 8 Eq. 656) 
 
 Parsons V. Peters (11 Jui\ N. S. 150) 
 
 Parterlche v. Powlet (2 Atk. 384) ... 
 
 Partington v. Att.-Gen. (L. E. 4 H. L. 100) . 
 
 Partridge v. Partridge ([1894], i Ch. 351 ; 63 L. J. Ch. 122 
 
 Partridge v. Smith (9 Jur. N. S. 742) .... 
 
 Paterson v. Gandasequi (r5 East^ 62 ; 2 Sm. L. C. 378 ) . 
 
 Patten v. Eea (26 L. J. C. P. 235 ; 3 Jur. N. S. 892 ; 2 C. B. N. S. 606) 
 
 Patience, Re, Patience v. Main (29 Ch. D. 976 ; S4 L. J. Ch. 897 ; 52 L. T. 
 
 500) 
 
 Patten v. Wood (51 J. P. 549) 
 
 Pattison v. Jones (8 B. & C. 578 ; 3 M. & E. loi) . 
 
 Paul V. Paul (20 Ch. D. 742 ; 51 L. J. Ch. 839; 47 L. T. 210 
 
 Paul V. Paul (L. E. 2 P. & D. 93) 
 
 Pawlet V. Delaval (2 Ves. 663; 
 
 Pawson V. Brown (13 Ch. D. 202 ; 49 L. J. Ch^ 193 ; 41 L. T, 
 
 Paxton V. M'Creight, Re M'Creight (30 Ch. D. 165 ; SS L. J. 
 
 W. E. 838) 
 
 70 L. T. 261) 
 
 339) 
 Ch. 28 ; 
 
 109 
 
 Payne v. Low (i E. & M. 223) 
 
 Peace & Waller, Re (24 Ch. D. 405 ; 49 L. T. 637) 
 
 Peacock v. Monk (2 Ves. Sen. 191) 
 
 Peacock's Estate, Be (L. E. 14 Eq. 236 ; S. C. 27 L. T. 472) 
 Peacock's Trusts, Re (10 Ch. D. 490 ; 48 L. J. Ch; 26s ; 39 L 
 Peake's Settled Estates, Be ([1894], 3 Ch. 520 ; 63 L. J. Ch. 
 
 I2S) 
 
 Pearce v. Brooks (cited Chamb. luf . 257) .... 
 Pearce v. Crutchfield (14 Ves. 206) . . . . 
 
 Pearce v. Foster (17 Q. B. D. 536 ; 55 L. J. Q. B. 306 ; 54 L 
 Pearce v. Lansdowne (62 L. J. Q. B. 441 ; 69 L. T. 316 ; 57 
 Pearce v. Pearce (9 Ves. 548) .... 
 
 Pearce u. Sogers (3 Esp. 214) 
 
 Pearson v. Attorney-General, Re Perton (53 L. T. 707) . 
 Pearson v. Heys (17 Q. B. D. 260 ; 50 L. J. M. C. 124 ; 45 L, 
 
 30 W. E 
 
 L. T 
 
 .867 
 
 801 
 
 S3L. 
 
 273. 274> 325 
 
 • • 538 
 . 694 
 
 222, 591, 679 
 
 • S42 
 ■ 407 
 
 • 45° 
 
 • 346, 399 
 
 . 216 
 
 . 864 
 
 207, 294 
 
 . 826 
 
 . . 78 
 
 363. 375. 375 
 41 W. E. 
 
 133. 397 
 
 • 470 
 744; 
 
 • S99 
 
 • 76 
 
 • 15s 
 . 663 
 
 357 
 
 743 
 
 640, 652 
 
 • 194 
 
 • 234 
 . 728 
 
 • 538 
 . 890 
 . 884 
 
 33 
 
 W.E. 
 
 ■ 976 
 
 ■ 847 
 854. 856 
 
 • 149 
 . 163 
 
 • 399 
 . 146 
 
 '• 146 ; 33 
 
 . 487 
 
 . 648 
 
 338, 432, 433 
 
 281, 364 
 
 541. 544 
 T. 661 ; 27 W. E. 500) . 346 
 ; 69 L. T. 281 ; 42 W. E. 
 
 . 671 
 
 • 637 
 787, 790, 796 
 
 T. 664 ; 34 W. E. 602) . 838 
 r. V. 760; .... 824 
 . 814 
 . 879, 880 
 
 • 567 
 T. 680 ; 30 W. E. 156) . 575 
 
 Digitized by Microsoft® 
 
Ixii 
 
 TABLE OF CASES. 
 
 Q. B. 422 ; 60 L. J. Q. B, 
 
 T. 774 ; 5 M. B. E. 268) 
 IS9) 
 
 J. P. D. & A. 16 ; 
 
 47 L, 
 
 Pedder's Trusts, Re (L. E. 10 Eq. 585 ; 40 L. J. Ch. 77) 
 Peers v. Lowe (4 Bun-. 2225) . 
 Pelley v. Bascombe (11 W. E. 766) . 
 Pelton (Brothers) v. HarrisbnCCiSgi], is 
 
 39 W. K. 689) 
 Pemberton v. Chapman (7 El. & B. 210) 
 Pemberton v. McGill (8 W. E. 290) 
 Pendrell v. Pendrell (2 Str. 925) 
 Penfold V. Mould (L. E. 4 Eq. 562) 
 Penhall v. Elwin (i Sm. & G. 258) . 
 Penleaze, Ex parte (i Bro. C. C. 387 «) 
 Pennington, Be, Ex pcurte Cooper (59 L. 
 Pennington v, Alvin (i Sim. & St. 264) 
 Penrose v. Manning, Be Brown (63 L. T. 
 Percival v. Cross (7 P. D. 234 ; 52 L, 
 
 124) 
 
 Perkins v. Smith (i Wils. 328) 
 
 Perks V. Mylrea (W. N. Mar. 8, 1884, p. 
 
 Mar. 8, 1884, p. 336;; Sol. Jour., Mar. 8, 11 
 Perrin v. Lyon (9 East, 170) . 
 Pen'in v. Perrin (i Add. Ecel. i) 
 Perry v. Perry (17 W. E. 815 : 18 W. E. 482) . 
 
 Perry v. Whitehead (6 Ves. 546) 
 
 Perton, Be, Pearson v. Attorney- General (53 L. T. 707) 
 Pertreis v. Tondear (i Hag. Con. E. 136) 
 Peter v. Thomas-Peter (26 Ch. D. 181 ; 53 L. J. Ch. 514 ; 22 W. E. 
 Peters v. Cowie (2 Q. B. D. 131 ; 46 L. J. M. C. 177 ; 36 L. T. 107) 
 
 Peters v. Fleming (6 M. fc W. 42) 
 
 Peters v. Nlcolls (L. E. 11 Eq. 391 ; 24 L. T. 381 ; 19 W. E. 618) 
 
 Pettifer v, James (Bunb. 16) 
 
 Peyton t). Bond (I Sim. 390) 
 
 Philip ji. Philip (41 L. J. P. M. & A. 89) , . . . 
 
 Phillips (an infant). Be (34 Ch. D. 469 ; 56 L. J. Ch. 337 ; 56 L. T 
 
 PAGE 
 
 . . . 138 
 
 7 
 . 680, 806 
 742 ; 6s L. T. 514 ; 
 287, 337, 382, 383. 393. 394. 426, 430, 431 
 
 • 328 
 
 64 ; L. J. 
 
 Mar. 8, il 
 !4. P- 341) 
 
 T. 353 
 
 p. 172; L. 
 
 SIS) 
 
 31 
 
 W. B. 
 
 387 
 
 479 
 212 
 
 IS4 
 652 
 
 iSS 
 
 811 
 
 570 
 
 817 
 
 . 891 
 
 T. Jour. 
 
 337. 338. 431 
 
 9 
 
 69 
 
 . 656, 689 
 
 ■ 572 
 
 • 567 
 109 
 
 . 819 
 
 • 257 
 745, 748, 749 
 
 • 130 
 
 • 237 
 . . 813 
 
 S14 
 
 Phillips jj. Barnet (i Q. B. D. 440; 45 L. J. Q. B. 277; 
 
 144 ; 35 W. E. 284) 
 
 123, 125, 779, 796 
 34 L. T. 177 ; 24 W. E. 345) 
 
 168, 169, 248, 292, 401, 425 
 Phillips V. Clilt (28 L. J. Ex. 153 ; 32 L. T. O. S. 282 ; 5 Jur. N. S. 74 ; 4 H. & N. 168) 
 
 843, 848, 849 
 Phillips V. Phillips (13 P. D. 220 ; 57 L. J. P. 76 ; 1^9 L. T. 183 
 Phillipson v. Hayter (L. E. 6 C. P. 38 ; 40 L. J. C. P. 14 ; 23 L. 
 
 400 
 
 ; 37 W. K, 224) . 
 T.556; 19W. E. 130) 
 
 304, 314, 317 
 
 420 
 
 . 171 
 
 . 88 
 
 280, 337, 366, 392, 433 
 
 53 L. T. 86s) 666, 671 
 
 . 748 
 
 Philliskirk v. Pluckwell (2 M. & S. 393) . . ... 
 
 Philp V. Squire (i Peake, 114) .... . . 
 
 Phlpps V. Earl of Anglesea (i P. Wms. 696) 
 
 Picard v. Hine (L. E. s Ch. App. 274 ; 18 W. E. 7s) 
 
 Pickard v. Wheater, Be Eobinson (31 Ch. D. 247 ; S5 L. J. Ch. 307 
 
 Pickering v. Gunning (Sir Wm. Jones, 182) . ... 
 
 Pickering v. Jacobs (March, 14s) . . . . 746 
 
 Pierce v. Waring (i Ves. Sen. 380) ... . . . . . 707 
 
 Pierpoint v. Lord Cheney (i P. Wms. 493) . . . 651 
 
 Piers V. Piers (2 H. L. Cas. 331 ; 13 Jur, 569) 7, 102 
 
 PifEard v. Beeby (14 W. E. 948) 813 
 
 Piggott's Case (5 Co. Eep. 29 a ; Com. Dig. Administration, F.) 602 
 
 Pike V. Cave (62 L. J. Ch. 937 ; 68 L. T. 650) 424 
 
 Pike V. Fitzgibbon (14 Ch. D. 837 ; 49 L. J. Ch. 493 ; 41 L. T. 148 ; 28 W. E. 667) 
 
 280, 284, 285, 337, 382, 390, 395, 396 
 
 Fillers v. Edwards (71 L. T. 788) 432 
 
 771, 772 
 42, 466 
 ■ 279 
 . 882 
 
 Pimm V. Insall (7 Ha. 193 ; i Mao. & G. 449) 
 
 Pitt V. Pitt (4 Macq. H. L. Cas. 627) 
 
 Plttam V. Foster (i B. & C. 248) 
 
 Pitts V. Kiugsbridge Highway Board (25 L. T. 195 ; 19 W. K, 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixiii 
 
 S7L 
 
 Ch. 
 
 46 L, 
 
 Eocl 
 
 299 
 
 W. K, 
 
 8 EI. 
 
 Flasket «. Beeby (4 East, 485) 
 Piatt V. Attorney-General (3 App, Cas. 336) . 
 Plomley, Be, Vidler v. CoUyer (47 L. T. 283) . 
 Plowden v. Gayford, Be Onslow (39 Ch. D. 622 
 
 W. K. 883) 
 
 Plume V. Plame (7 Yes. 258) 
 
 Plumley v. Birge (124 Mass. 57) .... 
 
 Flunkett v. Lewis (3 Ha. 316) .... 
 
 Plymouth, Earl of, v. Lewis (2 Dick. 801) 
 
 Polhlll V. Walter (3 B. & Ad. 114) . 
 
 Pollard V. Pollard ([1894] P. 172 ; 63 L. .1. P. 104 ; 70 
 
 Pollard V. Wybourn (i Hag. Eccl. Eep. 727) . 
 
 Pollock, Be, Pollock v. WorraU (28 Ch. D. 552 ; 54 L. J, 
 
 Pomfret, Earl of, v. Lord Windsor (2 Yes. Sen. 484) 
 
 Ponsford v, Johnson (2 Blatch. 51) 
 
 Poole's Estate, Be, Thompson !'. Bennett (6 Ch. D. 739 
 
 25 W. R. 862) 
 
 Porter, Be (25 L. J. Ch. 482 ; 2 Jur. N. S. 349) 
 
 Portland, Duke of, v. Topham (11 H. L. C. 32) 
 
 Portman v. MIU (8 L. J. Ch. 161) . 
 
 Portsmouth, Earl of, v. Countess of Portsmouth (i Hag. 
 
 Potinger v. Wightman (3 Mer. 67) . 
 
 Pott V. Brassey, Be Allnutt (22 Ch. D. 275 ; 52 L. J. Ch. 
 
 469) 
 
 Pott i'. Todhuuter (2 Coll. 76) 
 
 Potter!). Deboos (I Stark. 82). . . . '. 
 Potter V. Faulkner (31 L. J. Q. B. 30 ; 5 L. T. 455 ; 10 
 
 B. & S. 800) 
 
 Potts V. Cambridge (27 L. J. M. C. 62 ; 4 Jur. N. S. 72 
 
 Potts r. Leighton (15 Yes. 273) .... 
 
 Potts V. Norton (2 P. Wms. no »} , 
 
 Potts V. Plunkett (35 L. T. iii) . 
 
 Pouch i>. Stratton (4 Yes. 391) 
 
 Ponget V. Tomkins (2 Hag. Con. E. 142) 
 
 Poulter V. Shackel, Be Briant (39 Ch. D. 471 ; 57 L. J. Ch. 
 
 825) 
 
 Pountney, In the Goods of (4 Hag. 289) . 
 
 Powdrell v. Jones (21 L. J. Ch. 123; 18 Jur. nil ; 2 Sm. & 
 
 Powell V. Cleaver (2 Bro. C. C. 500) 
 
 Powell V. Haukey (2 P. Wms. 82) . 
 
 Powell V. Oakley (34 Beav. 575) .... 
 
 Powell V. Powell (14 P. D. 177 ; 61 L. T. 436) 
 
 Powis V. Mansfield (3 Myl. & Cr. 359) 
 
 Pratt V. Jenner (L. E. i Ch. App. 493 ; 14 W. E. 852) 
 
 Prebble v. Boghurst (i Swanst. 309) . . 
 
 Precious v. Abel (i Esp. 350) 
 
 Preston ». Preston (Milw. 608) .... 
 
 Price, In the Goods of (12 P. D. 137 ; 56 L. J. P. 72 ; 57 L. T. 
 
 Price, Be, Stafford v. Stafford (28 Ch. D. 709; 54 L. J. Ch. 
 
 S2o) 
 
 Price V. Carver (3 Myl. & Cr. 157) 
 
 Price V. Copner (i Sim. & St. 347) 
 
 Price V. Jenkins (5 Ch. D. 619; 46 L. J. Ch. 805 ; 37 L. T. 
 Prichard v. Ames (Turn. & Euse. 222) .... 
 Pride v. Bubb (L. E. 7 Ch. App. 64 ; 41 L. J. Ch. 105 ; 
 
 220) . . 
 
 Pridgeon v: Pridgeon (i Ch. Cas. 117) .... 
 Priestley v. Fowler (3 M. & W. i) . 
 
 Priestley v: Hughes (11 Bast, i) 
 
 Priestley v. Lamb (6 Yes. 421) 
 
 Prince V. Hine (26 Beav. 634) . . . . * .> , 
 
 J. Ch. 940 ; 59 
 
 815) 
 489; 
 
 J. Ch. 803; 37 L. T.iigj 
 
 48 
 
 93 
 
 953 ; 59 
 
 52 L, 
 
 Kep. 355) 
 
 L. T. 
 
 8 Jur. N. 
 
 & Bl. 847) 
 
 G. 407) 
 
 509 
 
 497 
 52 
 
 51) 
 
 25 
 
 35 
 L. T, 
 
 L. 
 
 505. 
 T. 308 ; 
 
 137. 
 
 T. 718) . 
 615, 620, 
 
 • 729 
 
 • 456 
 796, 798 
 36 
 357. 374 
 
 532 
 802 
 
 542 
 
 786 
 
 891 
 
 164 
 
 64,66 
 
 542, 543 
 
 699, 704 
 
 . 461 
 
 486, 487: 
 
 155 
 
 215 
 
 31 W. 
 
 318, 331 
 
 • 714 
 
 • 545 
 
 • 693 
 69.75 
 
 631, 632 
 E. 
 
 • 135 
 . 129 
 . n4 
 
 S. 259 ; 
 
 36 W. 
 
 91. 
 
 495. 597. 
 
 W. 
 
 E. 
 
 430 
 
 890 
 
 596) 
 33 W. 
 
 872 
 580 
 696 
 
 495 
 871 
 
 239 
 93 
 E. 
 
 . 208 
 
 233. 23s 
 
 . 221 
 
 634, 781 
 
 296, 399 
 
 • 778 
 
 • 353 
 . 640 
 
 • 384 
 . 141 
 . 878 
 
 • 329 
 
 • 371 
 E. 
 
 ■ 370 
 
 • 730 
 
 ■ 193 
 . 160 
 
 346 
 
 20 W. E. 
 
 ■ 363 
 242, 342 
 
 . 869 
 
 . 89 
 
 9. 94. 789 
 
 ■ 652 
 
 Digitized by Microsoft® 
 
Ixiv 
 
 TABLE OF CASES. 
 
 Prince's Case (5 Co. Ecp. 29 a) 
 
 Pritchard v. Hitchcock (6 M. & G. 165) 
 
 Pi-itcliard v. Koberts (L. E. 17 Eq. 222 ; 43 L. J. Ch. 129 ; 29 L. T. 883 ; 22 W. K. 259) 
 
 Probert v. Clifford (Arab. 6) 
 
 Pi-cctor J'. Eobinson (14 W. K. 381) 
 
 Procurator-General, Her Majesty's, u. WiUiams (31 L. J. P. M. & A. 157 ; 5 L. T. 765 ; 
 
 2S. &T. 353) 
 
 Pi-ole V. Soady (L. E. 3 Ch. App. 220 ; 17 L. T. 485 ; 16 W. E. 295) . . . 199. 
 Pryor v. Shelford (12 P. D. 165 ; 56 L. J. P. 77 ; 57 I-- T- 533 '• 35 ^- ^- 349) • 
 
 Pug:lj, Me (17 Beav. 336) 
 
 Pulsford v. Hunter (3 Bro. C. C. 416) 
 
 Pulvertoft J-. Pulrertoft (iS Yes. 84) 130.145. 
 
 Pumfrey, Be, Ex parte Hillman (10 Ch. D. 622 ; 48 L. J. Bk. 77 ; 40 L. T. 177 ; 27 
 
 W. E. 567) 
 
 Pnrdew v. Jackson (i Euss. i) 
 
 Pusey V. Desbouverle (3 P. Wms. 317) 
 
 Pyatt, Be, Ex parte Eogers (26 Ch. D. 31 ; 53 L. J. Ch. 936 ; 51 L. T. 177 ; 32 W. E. 
 
 737) 
 
 Pybus V. Smith (i Ves. 189) 3^7. 375. 
 
 Pye, £a:iKtrte(i8 Ves. 140; 2W. &T. L. C. 338) 539. 540, 
 
 Pym r. Great Northern Eailway Co. (31 L. J. Q. B. 249 ; 6 L. T. 537 ; 10 W. E. 737) . 
 Pym v. Lockyer (5 Myl. & Cr. 29) 
 
 PAGE 
 
 602 
 860 
 
 814 
 408 
 443 
 
 567 
 I 205 
 478 
 285 
 638 
 150 
 
 162 
 204 
 544 
 
 182 
 376 
 541 
 563 
 542 
 
 QuADBiNG V. Downs (2 Mod. 176) . 
 
 Quarman v. Burnett (6 M. <Sc W. 499) 
 
 Queade's Trusts, Be (54 L. J. Ch. 786 ; 53 L. T. 74 ; 
 
 Queensberry Leases, The Case of the (i Bli. 339) . 
 
 33 W. E. 816) 
 
 • 591 
 
 . 882, 883 
 
 134, 136, 385, 775 
 
 . 546 
 
 EaCe, Be (26 L. J. Q. B. 167 ; S. C. El. & Bl. i86) 494, 597 
 
 EadclifEe, Bt, Eadoliffe v. Bewes ([1892] i Ch. 227 ; 61 L. J. Ch. 186 ; 66 L. T. 363 ; 40 
 
 W. E. 323) 547 
 
 Eadnor, Lady, v. Vandebejidy (Show. Pari. Cas. 69) 220, 224 
 
 Eaikes v. Ward (i Ha. 445) 642 
 
 Eainsdon's Trusts, Be (4 Di-. 446) 352 
 
 Eamazotti v. Bowring (29 L. J. C. P. 30 ; 6 Jur. N. S. 172 ; 7 C. B. N. S. 851) . . 876 
 
 Eamon v. Eamon (39 L. T, 552 ; 27 W. E. 260) 637 
 
 Eamsay v. Margrett ([1894] 2 Q. B. 18 ; 63 L. J. Q. B. 513 ; 70 L. T. 788) . . 292, 3CX) 
 Eamsbotham v. Senior (L. E. 8 Eq. 575 ; 21 L. T. 293 ; 17 W. E. 1057) . . . 799 
 Eamsden v. Brearley (L. B. 10 Q. B. 147 ; 44 L. J. Q. B. 46 ; 32 L. T. 24 ; 23 W. E. 294) 
 
 334. 351. 401. 423 
 
 Eamsden v. Smith (2 Dr. 298) 133 
 
 Eandall v. Morgan (12 Ves. 67) 126, 145 
 
 Eandle v. Gould (6 W. E. 108 ; 8 El. & Bl. 457) . , 443, 445 
 
 Eansome v. Burgess (L. E. 3 Eq. 773 ; 36 L. J. Ch. 84 ; 15 "W. E. 189) . . 647, 649 
 
 Eaphael v. Boghm (11 Ves. 92) 6go 
 
 Eatcliff V. Eatcliff (29 L. J. P. M. & A. 171 ; 5 Jnr. N. S. 714: 2 Sw. & Tr. 467) . . 472 
 Eavenscroft v. Jones (33 L. J. Ch. 482 ; 32 Beay. 669 ; 4 De G. J. & S. 224) . . 541 
 
 Eawley v. Eawley (I Q. B. D. 460; 45L.J. Q.B. 675; 33 L. T. igi ; 24W.E. 995) 761, 762 
 
 200, 772 
 
 14 
 
 L. T. 367 
 
 Eawlins v. Birkett (4 W. E. 795) 
 
 Eawlyns v. Vandyke (3 Esp. 250) 
 
 Eay, V. Ex parte (i Madd. 199) , . . ^ . 
 Bay V. Sherwood (i Curt. 173) .... 
 Eaymeut v. Minton (L. E. i Ex. 244 ; 35 L. J. Ex. 153 
 
 4 H. & C. 371) . . . . 
 Eaymond's Case, Lord (Cas. t. Talb. 58) 
 Eayner v. Mitchell (2 C. P. D. 357 ; 25 W. E. 633) 
 Bead v. Legard (20 L. J. Ex. 309 ; 6 Ex. 636 ; 15 Jur. 494) 
 
 Eead v. Sewell (2 Atk. 642) 
 
 E«arsby v. Culler (Godb. 219 ; Co. Litt. 172 o) 
 
 Eeddio v. Scoolt (i Peake, 316) 
 
 Eedfem v. Eedfern ([1891] P. 139 j 60 L. J. P. 9 ; 64 L. T. 68 ; 39 W. E. 212) 
 
 312, 313, 519 
 • 346 
 . 62 
 14W. E. 675; 
 
 635. 787 
 . 887 
 
 • 303 
 . 406 
 
 • 752 
 
 • 562 
 246, 818 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixv 
 
 Kedgate v. Haynea (i Q. B. D. 89 ; 4s L. J. M. C. 65 ; 33 L. T. 779) . 
 Eeed ti. The Exchange Association Co. (Peake, Add. Cas. 70) 
 
 EeeB V. Lloyd (cited Simp. Inf. 26) 
 
 Keove D.HIai'quis Conyngham ( 2 C. & K. 444) . . . . 
 
 Reeve v. Eeeve (i F. & F. 280) 
 
 Eeeve v. Wood (34 L. J. M. C. 15 ; 11 L. T. 449 ; 3 W. K. 154 ; ir Juv. N. S. 201 
 
 Beeves, He (24 W. R. 848) 
 
 Reeves v. Hicks ^ 2 Sim. & St. 403) 
 
 Reeves v. Reeves (2 Phil. 125) 
 
 Reg. e. Allen (L. R. i C. C. 367 ; 41 L. J. M. C. 97 ; 26 L. T. 664 ; 20 W. K. 756) 
 Reg. V. Bavnardo (Broote's Case) (23 Q. B. D. 305 ; 58 L. J. Q. B. 553; 61 L. T 
 37W.R.789) 
 
 Reg. V. Bamardo (GtOBsage's Case) (24 Q. B. D. 283 ; 59 L. .1. Q. B. 345 ; 62 L. T 
 38W. E. 315) 
 
 Reg. D. Barnardo (Tye's Case) (23 Q. B. D. 305 ; 58 L. J. Q. B. 553; 61 L. T, 
 37W. R. 789) 
 
 Reg. V. Beaumont (23 L. J. M. C. 53 ; Dears. C. C. 270) 
 
 Reg. f. Bellis (62 L. J. M. C. 155 ; 69 L. T. 26) . . . 
 
 Reg. i: Birtwhistle and others (58 L. J. M. C. 158) 
 
 Reg. r. Blane (28 L. J. M. C. 216 ; 13 Jur. 854 ; 13 Q. B. 769) 
 
 Reg. V. Bleasdale (2 C. & K. 768) 
 
 Reg. v. Brawn (C. & K. 144) 
 
 Eeg. f. Brighton (30 L. J. M. C. 197 ; 5 L. T. 56 ; 9 W. E. 831 ; i B. & S. 447) 
 
 • 321 
 
 • 738 
 . 828 
 
 • 863 
 244 
 
 . 191 
 
 • 194 
 
 • 69 
 80,83 
 
 S47; 
 
 525 
 44; 
 
 495. 497 
 547: 
 495. 496. 497 
 . 897 
 
 ■ 590 
 
 ■ 449 
 . 580 
 . 892 
 79. 83 
 
 79. 80, 568 
 
 Eeg. V. BritUeton (12 Q. B. D. 266 ; 53 L,. J. M. C. 83 ; 50 L. T. 276 ; 32 W. E. 463) 
 Eeg. V. Brooks (St. James's Gazette, April 19, 1883) 
 
 244 
 247 
 
 ■ 413; 
 
 324. 334 
 
 • 79 
 . S67 
 
 97 
 37 W. It. 166) . 169 
 
 498. 499. 590. 597. 631 
 
 • 175 
 
 • 492 
 
 • 173. 174 
 
 • • 897 
 14 W. E. 
 
 L. T. 676 ; 
 
 Eeg. f. Camatic Railway Co. (L. E. 8 Q. B. 299 ; 42 L. J. Q. B. 169 ; 28 L. T. 
 
 21 W. E. 621) 
 
 Eeg. V. Chadwick ( 17 L. J. Q. B. 81 ; 11 Q. B. 173 ; 12 Jur. 174) 
 Reg. V. Chandler (24 L. J. M. C. 109 ; Dears. C. C. 453) 
 
 Eeg. u. Chapman (i Den. C. C. E. 432) 
 
 Reg. V. Clarence (22 Q. B. D. 23 ; 58 L. J. Q. B. 10 ; 59 L. T. 780 ; 
 Reg. V. Clarke (7 El. & Bl. 186 ; S. (J. 26 L. J. Q. B. 167) 
 Eeg. V. Cookham Union (9 Q. B. D. 522 ; 47 J. P. 116) . 
 Eeg. V. Conde (10 Cox, C. C. 547) . . . 
 Reg. V. Cruse (2 Moo. C. C. R. 53 ; 8 C. & P. 541) 
 
 Reg. V. CuUum (L. R. 2 C. C. R. 28) 
 
 Eeg. 1 . Curgenwen (L. R. i C. C. E. i j 35 L. J. M. C. 58 ; 13 L. T. 383 ; 
 
 55 ; II Jur. N. S. 984) 
 
 Eeg. 1. EUis (16 Cox, C. C. 469) 
 
 Reg. V. Fanning (17 Ir. C. L. 289) 
 
 Reg. V. Fanner and another ([1S92] i Q. B. 637 ; 61 L. J. M. C. 120 ; 66 : 
 
 40 W. E. 446) . . 
 
 Reg. V. Flaherty (2 C. & K. 782) 
 
 Reg. V. Gale (46 L. J. M. C. 146) . ... 
 
 Eeg. V. Gaunt (L. E. 2 Q. B. 466) .... ... 
 
 Eeg. V. Gleed (3 Euss. Crim. 623) . . 
 
 Eeg. V. Glynne (L. E. 7 Q. B. 16 ; 41 L. J. M. C. 58 ; 26 L. T. 61 ; S. C. 20 W. E. 94) 
 
 Reg. V. Goodbody (8 C. & P. 665) 
 
 Eeg. V. Goode (C. & M. 582) . . 
 
 Eeg. V. Gorbutt (26 L. J. M. C. 47) 
 
 Eeg. I. Gould (I Salk. 381) 
 
 Eeg. V. GyngaU ([1893] 2 Q. B. 232 ; 62 L. J. Q. B. 559 ; 69 L. T. 481; 
 
 49S. 501. 502, 503, 505, 525, 527, 800 
 
 Eeg. V. HaU (2 C. & K. 947 ; I Den. C. C. 381) 896 
 
 Eeg. V. HaU and Gillespie (57 L. T. 306) 580 
 
 Reg. V. Harrald (L. E. 7 Q. B. 361 ; 41 L. J. Q. B. 173 ; 26 L. T. 616 ; 20 W. E. 328) . 175 
 
 Eeg. I.. Hawkins (I Den. C. C. 584; 4 Cox, C. C. R. 294) 896 
 
 Reg. V. Henkins (16 Cox, C. C. 257) -585 
 
 Reg. V. Hey (14 Jur. 154 ; 3 Cox, C. C. E. 582 ; 2 C. & K. 983) 
 
 Reg. V. Howes (30 L. J. M. C. 47 ; 7 Jur. N. S. 22 ; 3 El. & Bl. 332 ; S. C. 3 L. T. 
 
 467 ; 9 W. E. 99) 492, 496. 500. SOI, 590, 630 
 
 e 
 
 83 
 
 579 
 
 82 
 
 897 
 
 580 
 
 244 
 
 580 
 
 . 896 
 
 895, 896 
 
 . 898 
 
 . 867 
 
 .590 
 896 
 
 Digitized by Microsoft® 
 
Ixvi TABLE OF OASES. 
 
 PAGB 
 
 Keg. V. Ireland (L. E. 3 Q. B. 130 ; 37 L. J. Q. B. 73 i V L. T. 467 ; 9 B. & S. 19) . 552 
 Keg. V. Jackson ([1891] i Q. B. 671 ; 60 L. J. Q. B. 346 ; 64 L. T. 679 ; 39 W. E. 407 ; 55 
 
 J. P. 246) 169,170,171 
 
 Keg. 1'. James (8 C. & P. 131) .... 892 
 
 Keg. K. Jellyman (8 C. & P. 604) ... ..... 244 
 
 Keg. V. Johnson (C. & M. 218) . . ■ ^99 
 
 Keg. V. Jones (11 Q. B. D. 118 ; 52 L. .J. M. C. 96 ; 48 L. T. 7(38 ; 31 W. R. 800) . 82 
 
 Keg. V. Jones (7 C. & P. 833) ^97 
 
 Keg. V. Kenny (2 Q. B. D. 307 ; 46 L. J. M. C. 156 ; 36 L. T. 36 ; 25 W. E. 679) . 246 
 
 Keg. V. Kerr (8 C. & P. 176) 896 
 
 Keg. 1;. Lee(58L. T. 384; 36 W. E. 415) 579 
 
 Eeg. V. Leggatt (18 Q. B. 781) 1^9 
 
 Eeg. V. Leggett (8 C. & P. 191) 861 
 
 Eeg. v. Leresche ([1891] 2 Q. B. 418 ; 60 L. J. M. C. 153 ; 65 L. T. 602 ; 40 W. E. 2) 449, 450 
 Keg. V. LoUey (2 CI. & F. 567 ; Euss. & R. C. C. 237) ... 83, 466, 468, 469, 472 
 
 Keg. V. Lord Mayor of London (16 Q. B. D. 772 ; 55 L. J. Q. B. 118; 54 L. T. 761 ; 34 
 
 W. K. 544) 246 
 
 Keg. V. Lord (17 L. J. M. C. 181 ; 12 Q. B. 757) . . . 722, 733, 754, 755, 830, 846 
 
 K. 685) 
 
 82 
 716, 737 
 589 
 580 
 
 I7S 
 
 45 
 
 244 
 
 477 
 867 
 
 174 
 174 
 67,98 
 
 Eeg. V. Lumley (L. E. i C. C. E. 196 ; 38 L. J. M. C. 86 ; 20 L. T. 454 ; 17 W. 
 Eeg. V. Macdonald (15 Q. B. D. 323; 52 L. T. 583 ; 33 W. E. 735) 
 
 Eeg. V. Mace (50 J. P. 776) 
 
 Eeg. V. Machen (18 L. J. M. C. 213 ; 14 Q. B. 74 ; 3 New Sess. Cas. 629) 
 
 Eeg. V. Maidstone Union (5 Q. B. D. 31 ; 49 L. J. M. C. 25 ; 28 W. E. 183) 
 
 Keg. V. Mainwaring (26 L. J. 51. C. 10 s Dears. & B. C. C. 139) 
 
 Keg. V. Mallory (13 Q. B. D. 33 ; 50 L. T. 429) 
 
 Keg. V. Mansfield (i Q. B. 444) .... . . 
 
 Keg. V. Marriott (8 C. & P. 425) .... 
 
 Eeg. V. M'Clarens (3 Cox, C. C. 425) . ... 
 
 Eeg. V. M'Ginnes (11 Cox, C. C. 391) .... 
 
 Keg. V. Minis (10 CI. &. F. 534 ; 8 Jur. 717) .... 15, 16, 30, 32, 50, 55, 
 
 Keg. V. Moah (27 L. J. M. C. 204; 31 L. T. O. S. 121; 6 W. E. 470; 4 Jiir. N. S, 
 464 ; I Dears. & B. C. C. 550) 
 
 Keg. V. Moore (52 J. P. 375) . 
 
 Keg. V. Moorhouse James (19 L. J. M. C. 179 ; 14 Jur. 940 ; 3 C. & K. 167 ; 3 T. & M. 300) 94 
 
 Reg. V. Nash (10 Q. B. D. 454 ; 52 L. J. Q. B. 442 ; 48 L. T. 447 ; 31 W. R. 420) 
 
 573, 575, 588, 589 
 
 Eeg. V. Negus (L. E. 2 C. C. E. 34 ; 42 L. J. M. C. 62 ; 28 L. T. 646 ; 21 ^X. E. 687) . 821 
 
 Reg. V. Justices of Oldliam (51 J. P. 647) 
 
 Reg. u. Packer (16 Cox, C. C. 57) 590, 804 
 
 Reg. V. Paul (25 Q. B. D. 202 -, 59 L. J. M. C. 138 ; 62 L. T. 845 ; 38 W. E. 704) 
 
 Eeg. ^. Phillips (8 C. & P. 736) 
 
 Eeg. V. Phillpot (Dears. C. C. E. 179) 
 
 Keg. V. Pollard (cited 2 Moo. C. C. E. 53) 
 
 Eeg. V. Prince (L. E. 2 C. C. E. 154 ; 44 L. J. M. C. 122 ; 32 L. T. 700 ; 24 W. E. 76 
 13 Cox, C. C. 138) 
 
 Keg. V. Reed (i Dears. C. C. 168) 
 
 Reg. V. Reynolds (2 Cox, C. C. R. 170) 
 
 Reg. V. Rugg (24 L. T. 192; 12 Cox, C. C. R. 16) . 
 
 Keg. V. St. Giles-ln-the-Fields (17 L. J. Q. B. 81 ; 11 Q. B. 173 ; 12 Jur. 174) 
 
 Reg. V. Scammonden (15 L. J. M. C. 30 ; 8 Q. B. 349) 
 
 Reg. V. Selborne (29 L. J. M. C. 56 ; 8 W. R. 22 ; 5 Jur. N. S. 1277 ; 2 El. & El. 275) 
 
 Reg. V. Sharman (25 L. J. M. C. 51) 
 
 Reg. V. Shingler (17 Q. B. D. 55 ; L. J. M. C. 147 ; 54 L. T. 759 ; 34 W. R. 490) 
 
 Reg. ti. Sloane et wear (33 Sess. Pap. (C. C. Court) 482) 
 
 174 
 523 
 868 
 
 Eeg. ». Smith (4 F. & F. 1099) . 99, 847 
 
 Reg. V. Smith (i D. & B. 553) 
 
 Keg. V. Smith (22 L. J. Q. B. 116) 
 
 Keg. V. Smith (8 C. & P. 153) 
 
 Keg. V. Staunton and Rhodes (Times, November 9, 1877) 
 
 Eeg. V. Stephens (L. R. i Q. B. 702 ; 35 L. J. M. C. 251 ; 14 W. K. 859 ; 14 L. T. 593) 
 
 Reg. V. SuUens (i Moo. C. C. 129) 895 
 
 Digitized by Microsoft® 
 
 858 
 803 
 
 717 
 716 
 S18 
 173 
 
 559 
 896 
 
 895 
 516 
 79 
 553 
 553 
 858 
 580 
 867 
 
TABLE OP CASES. 
 
 Ixvii 
 
 Cas, 
 
 PAGE 
 
 Keg. I'. Thompson (12 Q. B. D. 261 ; 53 L. J. M. C. 65 ; SO L. T. 397 ; 32 W. K. 398) . 58° 
 
 Eeg. v. Thorpe (27 L. J. M. C. 264 ; Dears. & B. 562) 897 
 
 Eeg. V. Tolson (23 Q. B. D. 168 ; 58 L. J. H. C. 97 ; 60 L. T. 899 ; 37 W. K. 716) . 82 
 
 'Sag. V. Torpey (12 Cox, C. C. 45) 173, 174 
 
 Keg. c. Upton (cited 3 Euss. Cr. 315) 82 
 
 Eeg. I . Walte ([1892] 2 Q. B. 600 ; 6r L. J. M. C. 187 ; 67 L. T. 300 ; 41 W. B. 80) . 716 
 Eeg-. u. Webster (16 Q. B. D. 134; SS L. J. M. C. 63 ; 53 L. T. 824 ; 34 W. K. 324) . 804 
 
 Keg. V. White (10 L. T. O. S. 349) 575 
 
 Eeg. i: White (9 C. & P. 344) 896 
 
 Keg. r. Williams (58 L. J. Q. B. 176) S^S- 5^6 
 
 Keg. ( . Williams ([1893] i Q. B. 320 ; 62 L. J. M. C. 69 ; 41 W. E. 332) . . .716 
 Eeg. 1-. WUlshire (6 Q. B. D. 366 ; 5° L. J. M. C. 57 ; 44 L- T. 222 ; 29 W. E. 473) . 82 
 Eeg. V. Wilson (5 Q. B. D. 28 ; 49 L. J. M. C. 13 ; 41 L. T. u6 ; 28 W. E. 307) . . 736 
 
 Eeg. V. Wilson (9 C. & P. 27) 897 
 
 Keg. (.: Winton and others (59 L. T. 382) S79 
 
 Keg. I'. Wymondham (2 Q. B. 54) 580 
 
 Eeid, In the Goods of (L. E. i P. A; D. 74 ; 35 L. J. P. M. & A. 431 ; 14 W. E 
 
 12 Jur. N. S. 300) 
 
 Reid v. Explosives Co. (19 Q. B. D. 264 ; 56 L. J. Q. B. 388 ; 57 L. T. 439 ; 35 W. 
 
 Eeid V. Kenrick (24 L. J. Ch. 503 i i Jur. N. S. 897) 
 
 Keid V. Eeid (31 Ch. D. 402 ; 55 L. J. Ch. 294 ; S4 L. T. 100 ; 34 W. E. 332) 
 Keid V. Eeid (33 Ch. D. 220 ; SS L. J. Ch. 756 ; SS L. T. IS3 ; 34 W. E. 71s) 
 
 Eeid V. TeaMe (22 L. J. C. P. 161 ; 17 Jur. 841 ; 13 C. B. 627) 
 
 Keid's Case (24 Bear. 318) 
 
 Keigate Union, Gxmrdians of the, v. Guardians of the Croydon Union (14 App, 
 59 L. J. Q. B. 29 ; 61 L. T. 733 ; 38 W. E. 295) . 
 
 Keneaux v. Teakle (22 L. J. Ex. 241 ; 17 Jur. 351 ; 8 Exch. 680) 
 
 Kennie v. Eitchie (12 CI. & F. 234) 
 
 Kennie v. Toung (2 De G. & J . 136) 
 
 Kensburg, Ex parte (4 Ch. D. 685 ; 36 L. T. 68s ; 25 W. E. 432) 
 
 Eevel V. Watkinson (i Ves. Sen. 93) . . . . 
 
 Eevett v. Harvey (2 L. J. Ch. 39 ; i Sim. & St. S02) 
 
 Bex V. Abraham (2 East, P. C. 569) 
 
 Eex V. All Saints, Worcester (6 M. & S. 194) . 
 
 Eex r. Amersham (4 A. & E. S08 ; 6 N. & M. 12 ; 
 
 Bex i". Amesby (3 B. & Aid. 584) . 
 
 Eex r. Arundel (5 M. & S. 257) 
 
 Bex V. Bass (2 East, P. C. s66 ; i Lea. 251, S24) 
 
 Eex V. Bazeley (2 East, P. C. 571 ; 2 Lea. 235) 
 
 Eex V. BUliBghurst (3 M. & S. 250) 
 
 Bex V. Birmingham, Inhabitants of (8 B. & C. 29) 
 
 Eex r. Bramley (6 T. E. 330) .... 
 
 Bex V. Brampton (10 East, 282) 
 
 Eex B.Brasier (i East, P. C. 443 ; S. C. B. N. P. 293) 
 
 Eex V. Birdbrook (4 T. K. 425) 
 
 Bex V. Brooke (4 Burr. 1991) ... 
 
 Bex V. Burton-npon-Trent (3 M. & S. S37) • 
 
 Bex V. Chesterfield (2 Salk. 479) . 
 
 Bex V. Chillesford (4 B. & C. 94) . 
 
 Eex V. Cornwall (2 Stra. 881) .... 
 
 Eex V. Cromford (8 East, 25) 845 
 
 Bex V. Daniel (6 Mod. 182) 846 
 
 Bex V. Delaval (3 Burr. 1436) . 
 
 Eex V. De Manneville (s East, 221) 493, 498, 499 
 
 Eex V. Dicks (cited i Euss. Cr. 141) 174 
 
 Eex V. Edwards (7 T. E. 745) .846 
 
 Eex V. Evered (16 East, 27) 768 
 
 Eex V. Everton (i East, 526) SS3 
 
 Bex V. Felton (i Bott & Const. P. L. 467) 574 
 
 Eex V. Porster (E. & E. 4S9) 97 
 
 Bex V. Friend et ux<yr (E. & E. C. C. 22) SI7. SS2. 867 
 
 I H. & ^\'. 6941 
 
 316; 
 
 • 143 
 K.5og) 836 
 
 133. 142 
 
 • 357 
 . 212 
 . 308 
 
 734. 743 
 46s; 
 175. 486 
 . 308 
 
 • 342 
 
 • 704 
 ■ 199 
 
 639, 680 
 584, 611, 704 
 897 
 244 
 84s 
 755 
 754 
 89s 
 897 
 92 
 69,88 
 567 
 463 
 717 
 832 
 170 
 96 
 830 
 S3I. 733. 754. 755 
 
 Digitized by Microsoft® 
 
Ixviii TABLE OF CASES. 
 
 Bex V. Gray (i Stra. 481) 
 
 Bex «. Great Bowden (7 B. & C. 249) . 
 
 Bex V. Great Yarmouth (5 M. & S. 114) 
 
 Rex V. Greenhill (4 A, & E. 624 ; 6 N. & M. 244) 
 
 Bex V. Groombridge (7 C. & P. 582) 
 
 Eex V. Halifax (Burr. 806) . 
 
 Bex V. Hardwick (5 B. & Aid. 176) 
 
 Bex V. Hind (E. & B. 253) 
 
 Bex V. Hindringham (6 T. E. 557) 
 
 Bex V. Hopkins (7 East, 579 ; 3 Smitli, 577) . 
 
 Bex!;. Hughes (i Moo. C. C. B. 370) 
 
 Eex V. Mey (5 A. & E. 441) . 
 
 Bex V. Kea (ii East, 132) 
 
 Bex v. Kempson (2 Stra. 955 ; Bott, Sess. Cas. 230) 
 
 Bex V. KlUingholme (10 B. & C. 802) 
 
 Eex V. Laindon (8 T. B. 379) . 
 
 Eex V. Lister (i Stra. 478) 
 
 Eex V, Longnor (4 B. & Ad. 647) . 
 
 Eex V. Lufle (8 East, 193) 
 
 Eex V. Lufflngton (Burr. Sett. Cas. 232) 
 
 Eex V. Mead (i Burr. 542) 
 
 Bex V. Morris (Buss. &. By. 270) . 
 
 Eex V. Moseley (5 East, 224 «) 
 
 Bex 11. Munday (i Stra. igo) . 
 
 Bex V. Newton (10 B. & C. 838) 
 
 Eex v. Northwingfleld (i B. & Ad. 912) 
 
 Bex V. Oakley (10 East, 491) . 
 
 Eex V. Peck (i Salk. 65) 
 
 Bex V. Pike (3 C. & P. 598) . 
 
 Eex V. Bainham (i East, 531) 
 
 Bex V. Bidley (2 Camp. 650) . 
 
 Bex V. Eoach (6 T . B. 247) . 
 
 Eex V. Eotherfleld Greys (i B. & C. 345 ; 2 D. & E. 628) 
 
 Eex V. St. Andrews (8 B. & C. 679') 
 
 Eex V. St. Austrey (i Burr. Sett. Cas. 441) 
 
 Bex V. St. Faith's, Newton (2 D. & E. 34) 
 
 Eex V. St. Martin's, Exeter (2 4 . & E. 655 ; i H. & W. 69 ; 4 N. 
 
 EexD. St. Peter's (Burr. Sett. Cas. 25 ; Bull. N. P. 112) 
 
 Eex V. St. Petrox, Dartmouth (4 T. E. 196) . 
 
 Bex V. Saunders (7 C. & P. 277) . . ; 
 
 Eex V. Sherrington (3 B. & A. 714) 
 
 Eex V. Shinfleld (14 Bast, 541) 
 
 Eex V. Soper (5 T. E. 278) .... 
 
 Eex V. Sourton (5 A. & E. 180) 
 
 Bex V. Sow (i B. & Aid. 178) .... 
 
 Eex V, Spawnton (Burr. Sett. Cas. 801) 
 
 Eex V. Squire (cited i Euss. Cr. 144) 
 
 Rex V. Standon Massey (10 East, 756) . 
 
 Bex V. Stanwix (5 T. E. 670) .... 
 
 Rex V. Stockland (Burr. Sett. Cas. 508) . 
 
 Eex V. Stretton (Cald. 487) .... 
 
 Bex V. Sutton (3 A. & E. 597 ; 5 N. & M. 353) 
 
 Bex V. Tardebigg (Burr. Sett. Cas. 322 j Sayer, 100) 
 
 Bex V. Taylor (15 East, 460) . 
 
 Eex V. Tibshelf (i B. & Ad. 190) . 
 
 Eex V. Titchfield (Burr. Sett. Cas. 511) . 
 
 Bex V. Todding-ton (i B. & Aid. 560) 
 
 Eex V. Tottington Lower End (Cald. 284) 
 
 Eex V. Truman (i East, P. C. 470) . 
 
 Eex V. Twyning (2 B. & Aid. 386) . 
 
 Eex V. 'Wakefleld (cited 3 Buss. Cr. 625 ; 2 Lew. Cr. C. i) 
 
 
 PAGE 
 
 
 • • 899 
 
 
 . . . 832 
 
 
 . 832 
 
 
 496, 498, 506, 630 
 
 
 . 716 
 
 
 • 553 
 
 
 • 756 
 
 
 ■ 94 
 
 
 ■ 843 
 
 
 573 
 
 
 . 896 
 
 
 • 497 
 
 
 . . ■ . S67 
 
 
 . 516 
 
 
 • 832 
 
 
 . 842 
 
 
 . 170,845 
 
 
 • 84s 
 
 
 • 476, 479 
 
 
 . . . 98 
 
 
 • 169,435 
 
 
 ■ 173 
 
 
 • 573 
 
 
 . . . . 516 
 
 
 . . . 832 
 
 
 . 831, 832 
 
 
 • 591 
 
 
 . 848 
 
 
 • 717 
 
 
 . 842,845 
 
 
 . . . . 867 
 
 
 ■ 553 
 
 
 ■ 553. 756 
 
 
 .832 
 
 
 . 844 
 
 
 92 
 
 &M 
 
 38s) 843 
 
 
 • • ■ 567 
 
 
 • 755. 842, 844 
 
 
 867 
 
 
 • 529 
 
 
 • ■ 863 
 
 
 • 573 
 
 
 478 
 
 
 . . . 832 
 
 
 . 848 
 
 
 • 174 
 
 
 • 832 
 
 
 • 553 
 
 
 7 
 
 
 • S53 
 
 
 S91, 700. 728 
 
 
 . 829 
 
 
 ■ . 893 
 
 
 . 92 
 
 
 . 848 
 
 
 590 
 
 
 • S53 
 
 
 . 82 
 
 
 . 81 
 
 
 69, 71, 244 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixix 
 
 Kex V. Wantage (i East, 6oi) .... 
 Rex i\ Walpole St. Peter's (i W. Bl. 699 ; Burr. 638) 
 Eex i: Weddlngton (Burr. Sett. Cas. 766) 
 
 Kex V. Welford (Cald. 57) 
 
 Kex V. Whitton-cum-Twambrookes (3 T. K. 355) . 
 Kex V. Wigston (3 B. & C. 484) .... 
 
 Eex i'. Winton (s T. K. 91) 
 
 Kex c. ■Woburn (8 T. K. 479) 
 
 Kex V. Worfleld (5 T. K. 506) .... 
 
 Eex V. Wroxton (4 B. &. Ad. 640; i N. & M. 712) . 
 
 Eeynell i: Lewis (16 L. J. Ex. 55 ; 15 M. & W. 517) 
 
 Reynolds v. Teynham (9 Mod. 40 ; 4 B. P. C. 302) . 
 
 Ehodes, He, Kbodes v. Khodes (44 Ch. D. 94 ; 59 L. J. Ch. 298 ; 62 L. 'J 
 
 38s) 
 
 Ehodes i: Cook (4 L. J. Cb. 147 ; 2 Sim. & St. 488) 
 Ehodes v. Swithenbank (22 Q. B. D. 577 ; 58 L. J. Q. B, 
 
 4S7) 
 
 Kice V. Shepherd (6 L. T. 432 ; 2 C. B. N. S. 322) . 
 Eich V. Cliamberlayne (i Cas. temp. Lee, 134) 
 
 Kich V. Cockell (9 Vee. 369) 
 
 Klchards i'. Delbridge (L. E. 18 Eq. 11) . 
 
 Eichards v. Lewis (11 C. B. 1035) .... 
 
 Kichards v. Perkins (3 Y. & C. Exch. 299 ; 3 Jur. 168) 
 
 Kicliards v. Klchards (2 B. & Ad. 452) . 
 
 Eichards i\ West Middlesex Water Works Co. (15 Q. B 
 
 W. E. 902) 
 
 287 
 
 60 
 
 D. 660 ; 54 L. 
 
 Eichardson v. Cartwright (i C. & K. 328) , 
 
 Elchardson r. Dubois (L. K. 5 Q. B. 51 ; 39 L. J. Q. B. 69 ; 21 L. J 
 
 6s ; 44 L. T. 
 
 474 
 
 Eichardson v. Irving (Hume, Dec. 361 (1765)) 
 Eichardson v. Merri£eld (4 De G. & S. 161) . 
 Eichardson ». Saunders (6 Q. B. D. 313 ; 50 L. J. M, 
 
 631) 
 
 Eichardson v. Ward (6 Madd. 266) .... 
 
 Eichardson v. Williamson (L. K. 6 Q. B. 276 ; 40 L. J. Q. B. 145) 
 
 Kicketts v. Kicketts (64 L. T. 263) 
 
 Ridden v. Erringtou (26 Ch. D. 220 ; S4 L. J. Ch. 293 ; 50 L. T. 584 ; 32 W 
 
 L. T 
 
 '■63s 
 
 342; 38 
 
 W.E. 
 
 856: 37 
 
 J. Q. B. 55 
 
 PAGE 
 . 861 
 
 SS3> 756 
 
 838 
 553 
 733 
 435 
 553 
 831 
 91 
 878 
 
 494 
 
 W. 
 
 ■ 652 
 536. 537 
 K. 
 
 . 811 
 
 • 31S 
 . 601 
 295, 296, 364, 399 
 293 
 18S 
 693 
 243 
 
 ;33 
 
 . 886 
 . 878 
 18 ^V. B. 632) 
 
 303. 315 
 
 • 33 
 789. 791. 795 
 
 29 W. E. 
 
 • 522 
 
 • 695 
 . 891 
 
 • 272, 387 
 K. 680) 
 
 189, 193, 19s 
 
 478 
 
 539 
 865 
 
 31 W. E. 
 
 Rideout's Trusts, Be (L. E. 10 Eq. 41 ; 39 L. J. Ch. 192) 
 Eidgway, Be, Ex parte Kidgway (15 Q. B. D. 447; 54 L. J. Q. B. 570) . 
 Ridgway v. Hungerford Market Co. (3 A. & E. 171 ; 4 N. & M. 797) 
 Ridler, Be, Eidler v. Eldler (22 Ch. D. 74 ; 52 L. J. Ch. 343 ; 48 L. T. 396 
 
 170) • ■ 'IS/ 
 
 Eidley, Re, Buckton v. Hay (11 Ch. 645 ; 48 L. J. Ch. 563 ; 27 W. K. 527; . . 388, 389 
 
 Ridout V. Earl of Plymouth (2 Atk. 104) 406, 407 
 
 Eidout V. Lewis (i Atk. 269) 405 
 
 Riley v. Baxendale (30 L. J. Ex. 87 ; 9 W. E. 347 ; 6 H. & N. 445) . . .869 
 
 Eimell v. Sampayo (i C. & P. 254) 877, 878 
 
 Eimmell v. Simpson (18 L. J. Ch. 55) 692 
 
 Eist V. Faux (32 L. J. Q. B. 386) .... 561 
 
 Eiyett Camac's Will, Be (30 Ch. D. 136 ; 54 L. 0[. Ch. 1074 ; 53 L. T. 81 ; 33 W. E. 837) 669 
 Eoach V. Garvan (i Ves. Sen. 158) . . 494, 599, 618, 619, 620, 624, 637, 648, 787 
 Eoberts, Be, Kifl v. Eoberts (33 Ch. D. 265 ; 55 L. T. 498 ; 35 W. E. 176) . . .425 
 Roberts v. Akeroyd, Be Akeroyd's Settlement ([1893], 3 Ch. 363; 63 L. J. Ch. 32 ; 69 
 
 L. T. 474) 14c 
 
 Roberts v. BetheU (22 L. J. C. P. 69 ; 12 C. B. N. S. 778) 726 
 
 Roberts <■. Cooper ([1891], 2 Ch. 335 ; 60 L. J. Ch. 377 ; 64 L. T. 584) . . . 209, 213 
 
 Roberts v. Dixwell (i Atk. 607) 217 
 
 Eoberts v. Evans (7 Ch. D. 830 ; 47 L. J. Ch. 469 ; 38 L. T. 99 ; 26 W. E. 28) . . 423 
 
 Eoberts v. Eoberts (3 P. Wms. 66) . n 
 
 Roberts v. Roberts (Hardre, 96) . 529 
 
 Digitized by Microsoft® 
 
Ixx 
 
 TABLE OF OASES. 
 
 12 Jur. 556 ; II Q. B. gi6) 
 
 . 
 
 ■ 873 
 
 
 . 382 
 
 
 • 832 
 
 
 . 181 
 
 
 . 316 
 
 
 . 840 
 
 
 . igi 
 
 K. 17) 
 
 • 389 
 
 Koberts ». Smith (26 L. J. Ex. 319 ; 3 Jur. N. S. 469 ; 2 H. & N. 213) 
 Eoberts v. Watkins (46 L. J. Q. B. 552 ; 36 L. T. 779) . 
 Kobertson v, Jenner (15 L. T. 514) 
 KobertBon v. Norris (17 L. J. Q. B. 201 ; 
 
 Eobertson v. Eobeitson (6 P. D. 119) 
 
 Eobins v. Power (27 L. J. C. P. 257) 
 
 Eobinsoii, Bx parte (L. E. 4 C. P. 205) 
 
 Eobinson, Jie (27 Ch. D. 160 ; 53 L. J. Ch. 986 ; 51 L. T. 737 ; 
 
 EobinBon Me, Piokard v. Wbeater (31 Ch. D. 247 ; 55 L. J. Ch. 307 ; 53 L. T. 865) 
 
 666, 671 
 
 Eobinson v. Cleator (15 Ves. 526) 654 
 
 Eobinson v. Cox (9 Mod. 263) . 577 
 
 Eobinson v. Dickenson (3 Euss. 399) 153 
 
 Eobinson v. Gee (i Ves. Sen. 252) ... 194, 299 
 
 Eobinson v. Gosnold (6 Mod. 71) 311 
 
 Eobinson v. Hindman (3 Esp. 235) 838, 839 
 
 Eobinson v. Killey (30 Beav. 520) 652, 655 
 
 Eobinson v. Litton (3 Atk. 209) 809 
 
 Eobinson v. Lynes ([1894], 2 Q. B. 577 ; 63 L. J. Q. B. 759 ; 71 L. T. 249 ; 43 W. E. 62) 
 
 266, 336, 337, 432 
 
 Eobinson v. Pickering (16 Ch. D. 660I 50 L. J. Ch. 527 
 
 44 L. T. 165 ; 29 W. E. 38s) 
 
 289. 331. 337 
 
 S14 
 
 Ch. 770 ; 71 L. T. 79 ; 43 W. E. 
 
 936 ; 51 L. T. 177 : 32 ^V". I^. 
 
 Eobinson v. Eobinson (57 L. T. 118) 
 
 Eobinson v. Shaw, Jle Shaw ([1894], 2 Ch. 573 ; 63 L. J 
 
 IS9) 
 
 Eobinson v. Tickell (8 Ves. 142) .... 
 
 Eobinson v, "Wheelwright (21 Beav. 214) 
 
 Eochford v. Hackman (Kay, 308) . 
 
 Eock V. Hardman (4 Madd. 253) .... 
 
 Eoddy V. Williams (3 Jo. & Lat. 18) . . . 
 
 Eodney v. Chambers (2 East, 283) .... 
 
 Koe (dem. Parry) v. Hodgson (2 Wils. 129) 
 
 Eogcrs, Ex parte. Me Pyatt (26 Ch. D. 31 ; 53 L. J. Ch, 
 
 737) 
 
 Eogers, Me (L. E. i C. P. 47 ; 35 L. J. C. P. 71 ; 14 W. E. 142) 
 
 Eogers, Me Alice (L. E. i €. P. 47 ; 35 L. J. C. P. 71 ; 13 L. T. 437 ; 16 W. E. 142 
 
 Jur. N. S. 1008) . 
 Sogers V. Bruce (Beatt. 486) . 
 Eogers v. Clifton (3 B. & P. 587) 
 Eogers v. Earl (i Dick. 294) . 
 Eolle V. Budden (Bunb. 187) . 
 Eoper, Me, Doiicaster v. Eoper (39 Ch. D. 
 
 75°) 
 Eoper-Curzon v. Eoper-Curzon (L. E. 11 
 Eoper's Trusts, Me (11 Ch. D. 272 ; 40 L, 
 Eosenberg v. Lindo (48 L. T. 478) . 
 Eosher, Me (26 Ch. D. 801) 
 Eoskelly v. Godolphin (T. Eaym. 483) 
 Boss V. Boss (4 WUs. & Sh. 289) . 
 Eoss's Trust, Me (i Sim. N. S. 190) 
 
 Eowe V. Hopwood (L. E. 4 Q. B. i ; 38 L. J. Q. B. i ; 19 L. T. 261 ; 17 W, 
 Eowland v. Cuthbertson (L. E. 8 Eq, 466 ; 20 L. T. 938 ; 17 W. B. 907) 
 
 Bowles V. Bowles (7 Jur. 665) 
 
 Eowley v. Eowley (L. E. i Sc. & Div. App. 63 ; 35 L. J. P. M. & A. no) 
 Eoyce v. Charlton (8 Q. B. D. i ; 45 L. T. 712 ; 30 "W. E. 274) 
 
 Euddickr. Marsh (i H. & N. 601) 
 
 Euddiman v. Smith (60 L. T. 708 ; 37 W. E. 528) . 
 
 Budge V. Winnall (11 Beav. 98) 
 
 Ending r. Smith {2 Hag. Con. E. 371) 
 
 Eulfle V. Medlock, Me Medlock (55 L. J. Ch. 738 ; 54 L. T. 828) 
 
 482 ; 58 L. J. Ch. 215 ; 59 L. T. 203 ; 36 
 19 W. E. 579) 
 
 Eq. 452 ; 24 L. T. 250 ; 
 T. 97 ; 27 W. E. 408) 
 
 • 571 
 . 691 
 
 • 384 
 646, 797 
 
 ■ 693 
 
 • 131 
 435. 442 
 
 663 
 
 K. 28) 
 
 . 182 
 
 . 204 
 II 
 
 . 191 
 
 • 539 
 . 856 
 
 • 151 
 
 • 344 
 . E. 
 
 395. 396 
 
 • 6SS 
 
 • 647 
 798, 799 
 
 ■ 362 
 . 602 
 
 • 487 
 
 • 376 
 759. 761 
 
 . 228 
 
 • 543 
 
 ■ 439 
 
 • 847 
 . 308 
 
 • 792 
 
 no, 463 
 
 641.645,646 
 
 Eufflcs r. Alston (L. E. 19 Eq. 539 ; 44 L. J. Ch. 308 ; 32 L. T. 236 ; 23 W. E. 465 . 2i39 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixxi 
 
 EuBby V. Scarlett (5 Esp. 76) 877 
 
 KuBsell, Exparte, Re Butterworth (19 Ch. D. 588 ; 51 L. J. Ch. 521 ; 46 L. T. 113 ; 30 
 
 W. E. 584) 161 
 
 E. 2 
 
 Eussell V. Lee (i Lev. 86) ... . ... 
 
 Eussell V. Nicholls (16 L. J. Ch. 477) 
 
 Kussell V. Eussell (i Moll. 525) 
 
 Eussell V. Eussell ([1895] P. 315 ; 64 L. J. P. 105 ; 73 L. T. 295 ; 44 W, 
 Eussell V. St. AubyB (2 Cli. D. 398 ; 46 L. J. Ch. 641 ; 35 L. T. 395) 
 
 Eussell i'. Sharpe CI J. .SsW. 482) 
 
 Eussell's Case (5 Eep. 27) 
 
 Enttlnger v. Temple (33 L. J. Q. B. 1 ; 9 L. T. 256 ; 12 W. E. 9 ; 9 Jur. 
 
 4 B. & S. 491) 
 
 Eyall V. Kennedy (40 N. Y. [Supreme Court] 347) .... 
 
 Eyan v. Eyan (2 Phil. Eccl. 332) ... ... 
 
 Eyan i'. Sams (17 L. J. Q. B. 271 ; 12 Q. B. 460 ; 12 Jur. 745) 
 Eycroft v. Christie (3 Beav. 238) . . . . . 
 
 Eyder v. Bicterton (cited 3 Swanst. 80) . .... 
 
 Eyder r. Eyder (30 L. J. P. M. & A. 44 ; 3 L. T. 678 ; 9 W. E. 440 ; 2 Sw. 
 
 13) 
 
 Eyder i'. 'WombweU (L. E. 4 Ex. 32 ; 38 L. J. Ex. 8 ; 19 L. T. 491 ; 17 
 Eyland ». Smith (i Myl. & Cr. 53) 
 
 S. V. A. (3 P. D. 72) 
 
 St. Andrew's TJndershaft v. de Breta (i Ld. Eaym. 699) 
 
 St. Devereux v. Much Dew Church (i Wm. Bl. 366) 
 
 St. George i'. St. Margaret (i Salk. 123) . 
 
 St. John ». St. John (II Ves. 156) .... 
 
 St. Michael's, Norwich v. St. Matthew's, Ipswich (2 Stra. 831 ; Bur 
 
 St. Nicholas ». St. Botolph (31 L. J. M. C. 258) 
 
 Sale r. Sale (i Bear. 586) .... 
 
 Salisbury's Case, Marquis of (2 Ch. D. 29 ; 44 L. J. Ch 541 ; 23 W, 
 
 SaUes V. Savignon (6 Ves. 572) 
 
 Salop, Countess of, v. Crompton (Cro. Eliz. 777) 
 
 Salisbury v. Bagott (2 Swanst. 603) 
 
 Salter, Exparte (3 Bro. C. C. 500) . 
 
 Salter's Trusts, lie (17 Ir. Ch. Eep. 176) 
 
 Salway v. Salway (2 E. & M. 215) . 
 
 SaJwey v. Salwey (Amb. 693 ; 2 Dick. 434) . 
 
 Sampayo v. Gould (12 Sim. 426) 
 
 Sampson v. Wall, (25 Ch. D. 482 ; 53 L. J 
 
 r. 108) 
 
 E. 824) 
 
 W, 
 745' 
 
 746. 752 
 
 • 784 
 664 
 
 447. 451 
 
 . 132 
 
 813, 817 
 
 • 734 
 S. 1239; 
 
 ■ 578 
 
 • 487 
 460 
 
 304> 310 
 
 ■ 347 
 . 397 
 
 & Tr. 225 
 
 512. 513 
 P.. 167) 
 746, 747, 750 
 . 200 
 
 64, 6s 
 
 . 516 
 
 7 
 
 477 
 
 • 435 
 SS2 
 
 • 7SS 
 . 812 
 
 610 
 789 
 860 
 
 • 772 
 637 
 
 • 656 
 689, 69s 
 198, 213 
 
 • 123 
 435; 32 W. E. 617) 
 779. 787. 790. 793. 795. 796 
 
 ■ 794 
 849 
 813 
 
 817 
 
 Ch. 457; soL. T. 
 125, 134, 778: 
 Sams V. Cronin (22 W. E. 204) ... . • 
 
 Sandby, Exparte (i Atk. 149) . . ... 
 
 Sandford v. Sandford (9 Jur. N. S. 398) 
 
 Sandilands, Exparte (21 L. J. Q. B. 312 ; 17 Jur. 317) . 
 Sands v. Child (3 Lev. 352) ... . . 
 
 Sandys v. Cooper (3 L. J. Ch. 162) 
 
 Sanger v. Sanger (L. E. 11 Eq. 470 ; 40 L. J. Ch. 372 ; 24 L. T. 649 ; 19 W. E. 792) 
 
 141, 263, 355, 380 
 
 Sankey v. Goldine (21 & 22 Eliz.) -342 
 
 Santo Teodoro f. Santo Teodoro (5 P. D. 79 ; 49 L. J. P. 20 ; 42 L. T. 331) 169 
 
 Sartorls, In the Goods ol (i Curt. 910) .610 
 
 Saterthwaite v. Duerst (4 Doug. 315 ; S East, 47 n) 560. 5^2 
 
 Saul V. His Creditors (5 Martin, N. S. [La] 569) 459 
 
 Saunders v. Crawford (9 Q. B. D. 612 ; 51 L. J. Q. B. 460 ; 46 L. T. 420) . . .522 
 Saunders v. Eichardson (7 Q. B. D. 388 ; 50 L. J. M. C. 137 ; 45 I" '^- 3^9 : 29 W. E 
 
 800) 
 
 Saunders v. Eodway {22 L. J. Ch. 230 ; 20 L. T. O. S. 122 ; i W. E. 11 ; 16 Jur. 1005 
 
 16 Beav. 207) ■ ■ ' 
 
 Saunders v. Saunders and Beck (69 L. T. 498) . ■ • • ' 
 
 522 
 
 438 
 444 
 
 Digitized by Microsoft® 
 
Ixxii 
 
 TABLE OF OASES. 
 
 Siivag-e V. Foster (9 Mod. 35) . 
 
 Savage v. Robertson (L. E. 7 Eq. 176) . 
 
 Saverne i: Smith (Cro. Car. 7) . . . 
 
 Savory v. King' (5 H. L. Cas. 627) 
 
 Savile v. Yeatman, Me Drax (57 L. T. 475) 
 
 Savill V. Savill (2 Coll. 72) ... . 
 
 Saville's Case (Cas. t. Talb. 16) . . . 
 
 Sawer v. Shute (i Anst. 63) .... 
 
 Sawers v. Forrest (cited Fraser H. & W. 377) 
 
 Sawyer v. Sawyer (28 Ch. D. D. 595 ; 54 L. J. Ch, 
 
 Saxton V. Hawksworth (26 L. T. 851) . 
 
 Saye and Sele, the Barony of (i CI. & F. 507) 
 
 Sayre v. Hughes (L. E. 5 Eq. 376 ; 37 L. J. Ch. 401 ; 18 L. T. 
 
 444 ; S2 L. T, 
 
 292 
 
 347 
 
 Scammell v. Wilkinson (2 East, 532) 
 
 Scanlan (Infants), Jle (40 Ch. D. 200 ; 57 L. J. Ch. 718 ; 59 L. T. 599 
 
 502, 510, 523, 524, 
 Scales V. Baker (28 Bcav. 91 ; 8 W. E. 287 ; 6 Jur. N. S. 1 134) 
 Scaramanga v. The Attorney-General (14 P. D. 83 ; 58 L. J. P. S3 ; 60 
 W. E. 687) 
 
 Scarisbrick r. Lord Skelmersdale (4 Y. & C. Exch. 78) . 
 
 Scarman v. Castell (i Esp. 270) 
 
 Scholefleld v. Heafleld (8 Sim. 470) ... . . 
 
 Scholefleld v. Spooner (26 Ch. D. 94 ; 53 L. J. Ch. 777 ; 51 l'- T. 138 ; 
 
 Schreiber J). Dinkel (54 L. T. 911) 
 
 Schreiber v. Lateward (2 Dick. 592) . . . 
 Schultze r. Schultze (56 L. J. Ch. 356 ; 56 L. T. 231) . 
 Sohweder's Estate, He, Oppenheim v. Schweder ([1891] 3 Ch. 44) . 
 Scott, Be, Scott V. Hanbury ([1891] i Ch. 298 ; 60 L. J. Ch. 461 ; 63 L 
 
 ■ E. 264) 
 
 Scott V. Att.-Gen. (ii P. D. 128 ; SS L. J. P. 57; 56 L. T. 924) . 
 
 Scott V. Bell (2 Lev .70) 
 
 Scott i: Bentley (24 L. J. Ch. 244 ; 25 L. T. O. S. 114 ; 3 W. E. 280 
 
 PAGE 
 
 . 272 
 
 • 571 
 . . 183 
 
 S3S. 537. 538 
 
 • 82s 
 
 • 791 
 . 682 
 
 . 213 
 35 
 
 33 W. E. 403) 
 
 385. 387 
 . . . 874 
 
 ■ • 483 
 16 W. E. 662) 
 
 544. 545 
 252, 329, 369 
 36 W. B. 842) 
 525, 603, 63s, 784, 785 
 
 L. T. 935 ; 38 
 
 32 W. E. 978) 
 
 489 
 142 
 868 
 780 
 13s 
 159 
 790 
 
 323 
 
 295 
 
 T. 800 ; 39 W. 
 
 • 732. 778 
 . . . 87 
 . 130, 159 
 I K. & J. 281) 
 
 609, 610 
 
 Scott V. Jones (2 Not. Cas. 36) 65 
 
 Scott V. Morley (20 Q. B. D. 132 ; 57 L. J. Q. B. 43 ; 57 L. T. 919 ; 36 W. E. 67) 
 
 265. 335. 379. 43°. 431. 432 
 Scott (/. c. Sebright) v. Sebright (12 P. D. 21 ; 56 L. J. P. 11 ; 57 L. T. 421 ; 35 W. E. 
 
 258) 69,71,72 
 
 Scott V. Spaahett (3 Mac. & G. 599 ; 21 L. J. Ch. 349 ; 16 Jur. 157) . 210, 211, 212 
 
 Scott V. Tyler (2 Dick. 712 ; 2 Bro. C. C. 431) 7, 8, 10 
 
 Scrimshire v. Sorimshire (2 Hag. Con. E. 395) . . . . 19, 106, 457, 460 
 
 Scriven j-. Tapley (2 Ed. 337) 209 
 
 Scruby v. Payne (W. N. 1876, p. 227) . . . 
 
 Scrutton r. Patillo (L. E. 19 Eq. 369 ; 44 L. J. Ch. 249 ; 32 L. T 
 
 Scnlthorpe v. Tippen (L. E. 13 Eq. 232) 
 
 Seager, Jie, Seeley v. Briggs (60 L. T. 665) .... 
 
 Seagram v. Tuck (iS Ch. D. 296 ; 50 L. J. Ch. 572 ; 44 L. T. 800 ; 
 
 Seagrave v. Seagrave (13 Ves. 443) 
 
 Searle v. Price (/. c. Searle) (2 Hag. Con. Eep. 187) 
 
 Searle v. Eidley (28 L. T. 411) 
 
 Seatle v. Seatle (30 L. J. P. M. & A. 216) 
 
 Seaton v. Benedict (5 Bing. 28 ; 2 Moo. & P. 66) 
 
 140) 
 
 29 W. K. 784) 
 
 Seaton v. Seaton (13 App. Cas. 61 ; 57 L. J. Ch. 661 ; 
 
 Seddonu. Seddon (31 L. J. P. M. & A, 101) 
 Sedgwick v. Place (as L. T. 307) . 
 Seeley v. Jago (i P. Wms. 389) 
 Selby V. Selby (2 Eq. Cas. Abr. 488) 
 Sellen v. Norman (4 C. & P. 80) 
 
 . 818 
 . 200 
 
 • 714 
 714. 757 
 
 . 695 
 
 22s. 350 
 
 . 80 
 
 • 839 
 . 520 
 
 308 
 
 S8L.T. 565; 36W.E. 86s) 
 
 124, 125, 771, 776, 778, 779.796 
 . 512 
 . 157 
 . . ; 66s 
 • 599. 622 
 864, 865 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. Ixxiii 
 
 PAGE 
 
 Sella V. Sells (i Dr. & Sm. 42)'. ... . . .... 151 
 
 Selwyn, In the Goods of (3 Hag. 784) ... 235 
 
 Seulor r. Ward (28 L. J. Q. B. 139; 7 W. R. 261; 5 Jur. N. S. 172; i El. & El. 
 
 385) 872 
 
 Sergesou v. Cruise (i Ves. Son. 477) .... 591 
 
 Sergeson v. Seeley (2 Atk. 412) .... S9i 
 
 Sephton v. Sephton (58 L. T. 281 ; 52 J. P. 356) 45° 
 
 Seroka v. Kattenberg (17 Q. B. D. 117 ; 45 L. J. Q. B. 375 ; 54 L. T. 649 ; 34 W. E. 
 
 542) 270, 273, 327, 428, 858 
 
 Serres' Estate, Re, Venes v. Marriott (31 L. J. Ch. 519) .... .826 
 
 Sethe V. Sethe (Roll. Abr. Exors. (M.) pi. 2 ; Com. Dig. Administration, F.) . . 602 
 Severance v. The Civil Supply Association (48 L. T. 485 ; 31 W. E. 786) . 332, 334, 424 
 Seymour v. Greenwood (30 L. J. Ex. 327 ; 4 L. T. 833 ; 9 W. E. 785 ; 8 Jur. N. S. 214 ; 
 
 7H. &N.355) 884 
 
 Seymour v. Vernon (16 Jur. 189) . • 58i 
 
 Seyton, Re, Seyton v. Satterthwaite (34 Ch. D. 511 ; 56 L. J. Ch. 775 ; 56 L. T. 479 ; 
 
 3SW. E. 373) .322 
 
 Shaftesbury, Earl of, B. Hannam (Finch, 323) .... ..-596 
 
 Shakspeare, Re, Deakin v. Lakin (30 Ch. D. 169 ; 55 L. J. Ch. 44 ; S3 I'- T. 14S ! 33 ■^• 
 
 E. 744) 286, 287, 290, 361, 391, 430 
 
 Shanahan, Re (20 L. T. 183) Soi 
 
 Shannon v. Bradstreet (i Sch. & Lei. 58) . . 733 
 
 Sharman v. Sharman (67 L. T. 834) • . • • ■ ^45 
 
 Sharp V. Carter (3 P. Wms. 379) ^93 
 
 Sharpe v. Cosserat (20 Beav. 470 ; 3 W. E. 473) 140 
 
 Sharpe v. Crispin (L. E. i P. & D. 611 ; 38 L. J. P. M. & A. 17 ; 20 L. T. 41 ; 17 W. E. 
 
 368) .... 486,487 
 
 Sharpe v. Foy (L. E. 4 Ch. App. 35 ; 39 L. T. 541 ; 17 W. E. 65) . . 272, 772 
 Shattock V. Shattock (L. E. 2 Eq. 182 ; 35 L. J. Ch. 509 ; 14 L. T. 452 ; 14 W. E. 600 ; 
 
 12 Jur. N. S. 405) 234, 394, 396 
 
 Shaw, i?z^orte(4T. & C. Exch. 506) 682 
 
 Shaw, Re, Bobinson v. Shaw ([1894] 2 Ch. 573; 63 L. J. Ch. 770 ; 71 L. T. 79 ; 43 W. E. 
 
 IS9) S7I 
 
 Shaw V. Att.-Gen. (L. E. 2 P. & D. 156 ; 39 L. J. P. M. & A. ; 81 ; 23 L. T. 322 ; 18 
 
 W. E. 114c;) 83, 467, 469 
 
 Shaw V. Chairitie (3 C. & K. 21) 838 
 
 Shaw V. Gronld (L. B. 3 H. L. SS : 37 L. J. Ch. 433 ; 18 L. T. 833) .... 466, 467 
 
 Shedden v. Patrick (i Macq. H. L. Cas. 533) 485. 487 
 
 Sheffield v. Duchess of Buckingham (i Atk. 629) .... ... 729 
 
 Shell, Ex parte, Re Lonergan (4 Ch. D. 789 ; 46 L. J. Bk. 62 ; 36 L. T. 270 ; 25 W. E. 
 
 420) 299 
 
 SheUey v. , (13 Ves. 56) .... -479 
 
 Shelley v. Westbrooke (Jao. 266) ... .504 
 
 Shelley's Case (i Bep. 93 a) . 223 
 
 Shelmerdine, iJe(33 L. J. Ch. 474) 7^4 
 
 Shelton v. Springett (11 C. B. 452) ■ ■ ■ ■ S^9 
 
 Shepherd v. Ingram (Amb. 448) ■ • • ^4° 
 
 Shepherd v. Mackoul (3 Camp. 326) 1^8, 315 
 
 Sherrington ti. Yates (13 L. J. Ex. 249 ; 12 M. & W. 855 ; i D. & L. 1032) . 198 
 
 Sherwood, Ee (3 Beav. 338) . . 701 
 
 Sherwood v. Bay (i Moo. P. C. 353) 79 
 
 Shewell v. Dwarris (Johns. 172) 347 
 
 Shewell's Case (L. E. 2 Ch. App. 387) .... 7^8 
 
 Shilling, In the Goods of (Deac. & Sw. 183) 235, 252 
 
 Shipbrook, Lord, v. Lord Hinchinbrook (2 Dick. 547) . . .... 787 
 
 Shipway v. Ball (16 Ch. D. 376 ; 50 L. J. Ch. 263 ; 44 L. T. 49 ; 29 W. E. 302) . . 212 
 
 Shirley, iJe(sBing.N. C. 226) ^'i 
 
 Shirley's Settled Estates, Re (59 L. J. Ch. 82 ; 61 L. T. 169 ; 38 W. E. 32) . . . 192 
 Shoosmith, In the Goods of ([1894] P. 23 ; 63 L. J. P. 64 ; 70 L. T. 809) . ■ .233 
 
 Short «. Stone (8 Q. B. 358) .... 114 
 
 Shrapnell's Case (cited Lind. Comp. 810) 742. 743 
 
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Ixxiv TABLE OF OASES. 
 
 PAGE 
 
 Shurmur v. Sedgwick (24 Ch. D. S97 ; S3 L. J. Ch. 87 ; 49 L. T. 156 ; 31 W. K, 884) 
 
 130. 131 
 Shuttleworth, jBa;i)arte(4M. & G. 332n.) . , . • .... 191 
 
 Slbljelu.Ainslie(3 L.T. 583) ^55 
 
 Sibbett V. Ainsley (3 L. T. 583) : . . 483 
 
 Sibetb, Esc parte, Me Sibetli (14 Q. B. D. 417 ; S4 L. J. Q. B. 322 ; 33 W. R. 356). . 344 
 
 Siffken v. Davis (Kay, Appdx. 21) 666 
 
 Simmons v. Simmons (6 Ha. 352) 345 
 
 Simonin v. MaUlac (29 L. J. P. M. & A. 97 ; 2 Sw. & Tr. 67) . . . 457. 4S8. 459. 47° 
 
 Simons v. Howard (i Keen, 7) 348 
 
 Simpson V. Brown (13 W. K. 312) ^55 
 
 Simpson v. Margetson (11 Q. B. 27) ... 833 
 
 Simson v. Jones (2 Kass. & Myl. 365) 133. 225, 771, 772. 776 
 
 Singleton v. Eastern Counties Kailway Co. (7 0. B. N. S. 287) 802 
 
 Skinner, Hx parte (9 Moo. 278) 493. 498 
 
 Skinner v. Orde (L. R. 4 P. C. 60 ; 8 Moo. P. C. (N. S.) 261) 523 
 
 Skinner v. Skinner (13 P. D. 90 ; 57 L. J. P. 104 ; 58 L. T. 923 ; 36 W. R. 912) . . 514 
 
 Skinner v. Todd (51 L. J. Cb. 198) 394 
 
 Skipp V. Eastern Counties Railway Co. (23 L. J. Ex. 23 ; 9 Excb. 223 ; 3 C. L. R. 
 
 185) 872 
 
 Skottowe V. Young (L. R. 11 Eq. 474 ; 40 L. J. Cb. 366 ; 24 L. T. 220 ; 19 W. R. 583) . 485 
 
 Skrine v. Gordon (Ir. Rep. 9 C. L. 479) 759 
 
 Slade V. Tomson (3 Bulst. 58) 728 
 
 Slanning v. Style (3 P. Wms. 338) 203, 345 
 
 Slator V. Brady (14 Ir. C. L. 61) • • 738. 7^4 
 
 Slator V. Trimble (14 Ir. C. L. 342) 738. 739> 759 
 
 Slatter v. Slatter (i Y. & C. Ex. 28) . . • 443 
 
 Sleath V. Wilson (9 C. & P. 607 ; 2 M. & R. 181) 885, 887 
 
 Sleeman v. Wilson (L. R. 13 Eq. 36 ; 25 L. T. 408 ; 20 W. R. 109) 
 
 572, 574. 584. 598, 601, 606, 614 
 
 Slocombe v. Glubb (2 Bro. C. C. 455) 775 
 
 Small V. Hedgely, He Hedgely (34 Ch. D. 379 ; 56 L. J. Ch. 360 ; 56 L. T. 19 ; 35 W. R. 
 
 472) • . . . 356, 380 
 
 SmaUey v. Kerfoot (3 Stra. 1094) 269 
 
 Smallwood v, Rutter (9 Ha. 24) 813 
 
 Smart v. Tranter (43 Ch. D. 587 ; 59 L. J. Ch. 363 ; 62 L. T. 356 ; 38 W. E. 530) 
 
 232, 372 
 
 Smee v. Martin (Bunb. 136) .... 655 
 
 Smeed, lie. Archer v, PraU (54 L. T. 929) 648 
 
 Smith, iie, Bilke v. Roper (45 Ch. D. 632 ; 63 L. T. 448 ; 39 W. R. 93) . . . 370 
 
 Smith, 2te, Chapman v. Wood (51 L. T. 501) 376 
 
 Smith, Se, Henderson-Roe v. Hitching (42 Ch. D. 302 ; 58 L. J. Cli. 860 ; 61 L. T. 363 ; 
 
 37W. R. 70s) 644 
 
 Smith V. Adams (24 L. J. Ch. 258 ; 23 L. T. O. S. 216 ; 2 W. R. 698 ; 5 De G. M. & G. 
 
 712 ; II Jur. 968) 221 
 
 Smith V. Baker ([1891] App. Cas. 325 ; 60 L. J. Q. B. 683 ; 65 L. T. 467 ; 55 J. P. 
 
 660) 872 
 
 Smith V. Bate (2 Dick. 631) 620 
 
 Smith V. Bowen (i Mod. 25) 738 
 
 Smith V. Cherril (L. R. 4 Eq. 390 ; 16 L. T. 517 ; 15 W. 1!. 919) .... 148, 158 
 
 Smith V. Francis (55 J. P. 407) 847 
 
 Smith V. Garland (2 Mer. 123) 130 
 
 Smith V, Gibson (Peake, Add. Cas. 52) 748 
 
 Smith V. Hayward (2 Jur. 232 ; 7 A. & E. 544) 840 
 
 Smith V. Houblon (26 Beav. 482) 547 
 
 Smith V. Hnson (1 Phill. 287) 88 
 
 Smith V. lliffe (L. R. zo Eq. 666 ; 44 L. J. Ch. 755 ; 33 L. T. 200; 23 W. K. 851) 
 
 150. 151. 792 
 
 Smith V. Jobson (59 L. T. 397) . . 571 
 
 Smith V. King ([1892] 2 Q. B. 543) ... 763 
 
 Smith V. King (16 East, 283) 714 
 
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TABLE OF CASES. Ixxv 
 
 PAGE 
 
 Smith II. Low (i Atk. 489 ; West, 669) 765 
 
 Smith V. Lucas (18 Ch. D. 531 ; 45 L. T. 461 ; 30 W. K. 451) 124, 134, 385, 389, 773, 775 
 
 Smith ». Lyster (4 Beav. 227) 695 
 
 Smith V. Matthews (30 L. J. Ch. 445 ; 4 L. T. 266 ; 9 W. K. 644 ; 3 De G. F. & J. 
 
 509) 210 
 
 Smith i\ M'Guire (3 H. & N. 563) 877 
 
 Smith V. Millidge, Be Hiunphrids (24 Ch. D. 691 ; 49 L. T. 594) 569 
 
 Smith V. Eoche (2 L. J. C. P. 237 ; 5 Jur. N. S. 918 ; 6 C. B. N. S. 223) . . -578 
 
 Smith !■. Smith (3 Atk. 304) 89, 786, 787, 788, 789 
 
 Smith !'. Smith (19 Ch. D. 277 ; 51 L. J. Ch. 185 ; 45 L. T. 786) 377 
 
 Smith V. Smith (51 L. J. P. & D. 46) io5 
 
 Smith V. Smith (i Y. & C. Ex. 338) 132 
 
 Smith V. Smith (4 W. R. 316 ; 21 Beav. 385) 274 
 
 Smith V. Smith (23 Beav. 554) 529 
 
 Smith r. Smith, Re Benton (19 Ch. D. 277 ; 51 L. J. Qi. 185 ; 45 L. T. 786) . . . 384 
 Smith i: Smith & Graves (12 P. D. 102 ; 56 L. J. P. 51 ; 57 L. T. 375 ; 35 W. R. 459) . 163 
 Smith V. Spence, Be Wheatley (27 Ch. D. 606 ; S4 L. J. Ch. 201 ; 51 L. T. 681 ; 33 W. R. 
 
 27s) 385.775 
 
 Smith r. Spencer (2 Jur. N. S. 778) 227 
 
 Smith V. Stafford (Hobart, 216) 242 
 
 Smith V. Whitlock (55 L. J. Q. B. 286 ; 34 W. E. 414) 159, 286 
 
 Smith's Estate, Jie, Qements v. Ward (35 Ch. D. 589 ; 56 L. J. Ch. 726 ; 56 L. T. 850 ; 
 
 3SW. E.S14) 370 
 
 Smout r. Ilbery (12 L. J. Ex. 357; 10 M. & W. i) 303,881,890 
 
 Smythe, lie (11 I1-. L. T. Rep. 122) 501 
 
 Smythe v. Smythe (i8 Q. B. D. 544 ; 56 L. J. Q. B. 217 ; 56 L. T. 197 ; 35 W. R. 346) 
 
 435' 439 
 
 Snelling v. Lord Huntingfleld (i C. M. & R. 20 ; 4 Tyr. 606) 833 
 
 Snelson v. Corbet (3 Atk. 369) 407 
 
 Soady V. TambuU (L. K. i Ch. App. 494 ; 14 L. T. 813 ; 14 W. E. 955 ; 12 Jur. N. S. 
 
 612) 275, 329 
 
 Sockett V. Wray (4 Bro. C. C. 483) 395 
 
 Soltykoff, Me, Ex parte Margielt ([1891], i Q. B. 413 ; 60 L. J. Q. B. 339 ; 39 W. E. 
 
 337; 5SJ. P. 100) 726,749,752 
 
 Somerset v. Hart (12 Q. B. D. 360 ; 52 L. J. M. C. 77 ; 32 W. R. 594) . . . .889 
 Somerset, Doke ol. Be, Thynne c. St. Maur (34 Ch. D. 465 ; 56 L. J. Ch. 733 ; 56 L. T. 
 
 14s ; 35 W. If- 702) 424, 811-813, 816 
 
 SomervUle v. Hawkins (20 L. J. C. i". 131 ; 15 Jur. 540 ; 10 C. B. 590) .... 855 
 
 Somerville v. Somerville (5 Yes. 749 a) 486, 487 
 
 Sotheron v. Scott (6 Q. B. D. 518 ; 50 L. J. M. C. 56 ; 44 L. T. 522 ; 29 W. R. 666) . 576 
 Sottomayor v. De Barros (5 P. B. 94 ; 49 L. J. P. D. & A. i ; 41 L. T. 281 ; 27 W. R. 
 
 917) 106, 458, 461, 462, 467, 472 
 
 Souch V. Strawbridge (2 C. B. 308) 577, 834 
 
 Soutar's Policy Trusts, Be (26 Ch. D. 236 ; 50 L. T. 262 ; 32 W. R. 701) . . . 323 
 
 Spain V. Amott (2 Stark. 256) 860, 865 
 
 Sparkes v. Croft (Cumberb. 465) 602 
 
 Sparrow v. Camithers (i T. R. 6) 279 
 
 Sparrow v. Harrison (3 Curt. 16 ; .S. C. 4 Moo. P. C. 96) 64, 65, 66 
 
 Sparrow's Settled Estates, Be ([1892], i Ch. 412 ; 61 L. J. Ch. 260 ; 66 L. T. 276 ; 40 
 
 W. E. 326) 674 
 
 Speake v. Speake (i Vern. 217) 226 
 
 Speck V. Phillips (5 M. & W. 279) 838 
 
 Speight f. Gaunt (9 App. Cas. i ; 53 L. J. Ch. 419 ; 50 L. T. 330 ; 32 W. R. 455) 
 
 660, 687, 690 
 
 Speight V. Oliviera (2 Stark. 495) 559. 5^2 
 
 Spence, Be (2 Ph. 247) ' 498, 5°2, 504. 603. 784. 798. 799 
 
 Spencer, Be, Thomas v. Spencer (30 Ch. D. 183 ; 55 L. J. Ch. 80 ; 34 W. R. 62) . . 378 
 
 Spencer v. Earl of Chesterfield (Amb. 146) 625, 626, 798 
 
 Spencer v. Wilson (L. R. 16 Eq. 501 ; 29 L. T. 19 ; 21 W. R. 838) ' . . • -638 
 
 Sperling v. Rochfort (8 Ves. 180) • , 212 
 
 Spicer r. Dawson (5 W. E. 431) 348 
 
 Digitized by Microsoft® 
 
Ixxvi 
 
 TABLE OF CASES 
 
 PACE 
 156, 2II-2I3 
 838 
 
 221, 228 
 
 Spirett D. WillowB (34 L. J. Ch. 365 ; 3 De G. J. & S. 293 ; 11 Jur. N. S. 70) 
 Spotswoode V. Barrow (19 L. J. Ex. 226 ; 5 Exch. no) 
 
 Spratt V. Spratt (i Sw. & Tr. 215) • ■ 
 
 Spring V. Pride (16 Jur. 876 ; 4 De G. J. & S. 395) 
 Spyer v. Hyatt (i Jur. N. S. 315 ; 20 Beay. 621) . 
 
 Squib V. Wyn (i P. Wms. 378) 
 
 Squires, -Be (25 L. J. C. P. 551 17 C. B. 176) 
 
 Squires v. Ashford (23 Beav. 132) 
 
 Squirrel v. Squirrel (2 P. Wms. 297 «) . . 
 
 Stacey v. Lintell (4 Q. B. D. 291 ; 48 L. J. M. C. 108 ; 40 L. T. 553 ; 27 W. R. 551) 
 
 Stacey v. Stacey (29 L. J. P. M. & A. 63 ; 8 W. K. 341) 
 
 Stackpole v. Beaumont (3 Ves. 88) . 
 
 Staokpoole v. Staokpoole (2 Con. & Law, 489) 
 
 Stafford v. Stafford, Me Price (28 Ch. D. 709 ; 54 L. J. Cli. 509 ; 52 L. T. 430 ; 33 W. B. 
 
 520) ... 
 
 Stagg V. Edgecombe (32 L. J. P. M. & A. 153 ; 3 Sw. & Tr. 240) . 
 
 Stamper v. Barker (5 Madd. 164) 
 
 Stanhope v. Baldwin (i Add. 93) 
 
 191 
 211 
 813 
 580 
 
 ■ 512 
 
 7, 9, 212 
 
 . 146 
 
 370 
 64 
 
 • 771 
 
 93 
 
 Stanhope v. Stanhope (ii P. D. 103 ; 55 L. J. P. 36 ; S4 L. T. 906 ; 34 W. E. 446) 82, 447 
 Stanley v. Stanley (7 Ch. D. 589 ; 47 L. J. Ch. 256 ; 37 L. T. 777 ; 26 W. K. 310) 
 
 272, 382, 383, 385, 388 
 
 Stanton v. Hall (2 E. & Myl. 180) 34^ 
 
 Stanton v. Lambert, lie Lambert's Estate (39 Ch. D. 626 ; 57 L. J, Ch. 927 ; S9 L. T. 
 
 429) ... 231,234 
 
 Stanton's Case (Moore, 135 (25 Eliz.) ... . 842 
 
 Stapleton v. Stapleton (i Atk. 2) . . . . • • 538 
 
 Stavkie, Ex parte (3 Sim. 339) . ... • • ■ • ^3 
 
 Starten i: Bartholomew (6 Beav. 143) ■ • 812 
 
 Stayeley v. Uzielli (2 F. & F. 30) .... 880 
 
 Stavert v. Stavert (9 Court Sess. Cas. 4th Series (Kettle) 519) 42 
 
 Stead I'. Nelson (2 Beav. 245) . .... . 281, 366 
 
 Steadman v. Palling (3 Atk. 423) .... . . 698. 7°°> 7°^ 
 
 Steadman v. Powell (i Add. 58) . . . • ■ S' 4S 
 
 Steed V. Cragh (9 Mod. 43) 185 
 
 Steed r. Preece (L. K. 18 Eq. 192 ; 43 L. J. Ch. 687 ; 22 W. K. 432) . 671 
 
 Steedman v. Poole (6 Ha. 193)1 ■ 37^ 
 
 Steele i'. Braddell (Milw. Ir. Eccl. Rep. i) . . . . . 459 
 
 Stcinmeiz v. Halthin (i G. & J. 64) 
 
 Stephens v. Elwall (4 M. & S. 459) .... 
 
 Stephens v. Green ([1895] 2 Ch. 148 ; 64 L. J. Ch. 546 
 
 Stephens v. James, (i M. & K. 627) 
 
 Stephens v. Olive (2 Bro. C. C. 90) . 
 
 Stephenson, He (3 De G. M. & G. 969) 
 
 Stephenson v. Hardy (3 Wils. 388) .... 
 Stern, Se (28 L. J. Ex. 22 ; 3 H. & N. S94) . 
 Stevens v. Bagwell (15 Ves. 139) 
 Stevens v. Hinshelwood (55 J. P. 341) ... 
 
 Stevens v. Jackson (4 Camp. 164) 
 
 Stevens v. Thompson, He Thompson (38 Ch. D. 317; 57 L. J. Ch. 748 ; 
 Stevens v. Trevor-Garrick ([1893] 2 Ch. 307 ; 62 L. J. Ch. 660 ; 69 L. ' 
 
 • 209 
 . 891 
 
 72 L. T. 574 ; 43 W. R. 465) . 130 
 506, 656 
 
 • 445 
 
 59 L. 
 \ II 
 
 412). 
 
 153 
 
 29 
 
 Stevens v. Woodward (6 Q. B. D. 318 ; 50 L. J. Q. B. 231 ; 44 L. T 
 
 506) 
 
 Steward v, Blakeway (L. E. 4 Ch. App. 603) 
 
 Stewart v. Fletcher (38 Ch. D. 627 ; 57 L. J. Ch. 765 ; 36 W. R. 713) 
 
 Stewart v. Menzies (2 Rob. App. 547) 
 
 Stiffe V. Everitt, (5 L. J. Ch. 138 ; i Myl. & Cr. 37) ■ . . 
 
 Stikeman v. Dawson (i De G. & S. 90) 
 
 Stileman v. Ashdown (2 Atk. 477) 
 
 Stimpaon v. Wood (57 L. J. Q. B. 484 ; 59 L. T. 218 ; 36 W. E. 734) 
 
 Stock f. McAvoy (L. R. 15 Eq. 55 ; 42 L. J. Ch, 230 ; 27 L. T. 441 ; 21 W. R. 521) 
 
 • 13s 
 
 . 428 
 
 • 45^ 
 252, 329. 369 
 
 . 886 
 
 . 726 
 
 T. 427) . 424 
 
 41 W. E. 
 
 • 136. 774 
 W.E. 
 . 884, 886 
 . 202 
 332, 388 
 
 • 32 
 204, 211 
 
 . 734 
 
 158, 588 
 
 . 172 
 
 545 
 
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TABLE OF CASES. 
 
 Ixxvii 
 
 760) 
 
 22 ; IW.&T. 
 
 ■ 734 
 . 123, 136, 360 
 10 B. & S. 
 
 . 887, 888 
 
 • 631. 63s 
 
 ■ 738, 765 
 
 • 725 
 
 526 
 
 487 
 
 L. C. 446) 
 
 Stocken «. Pattrlck (29 L. T. 507) -j. 
 
 Stooken v. Stocken (4 Myl. & Cr. 95 ; 4 Sim. 152) g.q 
 
 Stockley v. Parsons, Re Parsons (45 L. J. Ch. 51) . . 357 
 
 Steer, Me (9 P. D. 120 ; 51 L, T. 141 ; 32 W. R. 1005) .567 
 
 Stogdon V. Lee ([1891] 1 Q. B. 661 ; 60 L. J. Q. B. 669 ; 64 L. T. 494; 39 W. K. 467) 
 
 286, 288, 290, 348, 377, 382, 391 
 
 Stone V. Wishavt (2 Madd. 64) 810 
 
 Stone V. Withypol (Cro. Eliz. 127 ; i Lev. 156) .... 
 Stonor's Trusts, Re (24 Ch. D. 195 ; 52 L. J. Ch. 776 ; 48 L. T. 963) 
 Storey v. Ashton (L. K. 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 17 W. R. 727 
 
 337) 
 
 Storke v. Storke (3 P. Wms. 52) . 
 
 Story r. Johnson (2 Y. & C. Exch. 586) . 
 
 Stott o. Meanock (31 L. J. Ch. 746) 
 
 Stourton v. Stourton (26 L. J. Ch. 354 ; 8 De G. M. & G. 
 
 Strathmore Peerage Case, The (2 Bro. C. C. 345 ; i Ves, 
 
 Stratton v. Grymes (2 Vem. 357) .... 
 
 Streataeld v. Streatfield (Cas. t. Talb. 176) . 
 Stretch v. Watkins (i Madd. 253) .... 
 
 Strong, Re (26 L. J. Ch. 64; 2 Jur. N. S. 1241) 
 
 Striart V. Marquis of Bute (9 H. L. Cas. 440) . 
 
 Stuart V. Lord Kirkwall (3 Madd. 387) . 
 
 Stubbing v. Heintz (Peake, N. P. 66) 
 
 Stubbs i\ Sargon (2 Beav. 496) .... 
 
 Sturgis 1'. Charapneys (s Myl. & Cr. 97) ... . . . . 209-211 
 
 Stnrgls r. Corp (13 Ves. 190) 204, 252, 366, 369, 376 
 
 Sugg-ate V. Suggate (29 L. J, P. 31. »fe A. 167 ; 35 L. T. 0. S. 306 ; 8 W. H. 20 ; i Sn . & 
 Tr. 489) . . 
 
 Suggitt's Trusts, Re (L. R. 3 Ch. App. 215 ; 38 L. J. Ch. 426 ; 16 W. R. 551) 
 
 Sullivan r. Sullivan (2 Hag. Con. E. 238) .... . . 
 
 Summers v. City Bank (L. R. 9 C. P. 580 ; 43 L, J. C. P. 261 ; 31 L. T. 268) 
 
 Summers r. Solomon (7 El. & Bl. 879) .... ... 
 
 Surcome r. Pinniger (3 De G. M. & G. 571) . . • . . 
 
 Surmau v. Wharton ([1891] i Q. B. 491 ; 60 L. .J. Q. B. 233 ; 64 L. T. 866* 
 416) 
 
 Sussex Peerage Case, The (11 CI. •& F. 152) 
 
 Sutton i: Jones (15 Ves, 588) ... . . 
 
 Suttor, Re (2 Post. & Fin. 267) 
 
 Swain v. Follows (18 Q. B. D. 585 ; 56 L. J. Q. B. 310 ; 56 I 
 
 Swayne'e Case (8 Hep. 63) 
 
 Sweet V. Sweet ([1895] i Q. B. 12 ; 64 L. J. Q. B. 108 ; 71 L. T. 672 
 
 . 728 
 . 638 
 
 • 777 
 604, 608, 609, 6io, 782 
 . 281 
 • 877, 879 
 
 • 512, 513 
 
 . 2H 
 69, 91, 92, 94 
 
 355, 401, 423 
 
 39 ^^- K- 
 
 145 
 
 33S: 
 
 • 231 
 
 84, 460, 462 
 
 . 662 
 
 • 493. 588 
 
 25 W. E. 408) 8cq 
 
 713 
 43 W. K. 303) 
 
 43S. 437. 438, 444 
 Sweetapple v. Horlock (i i Ch. D. 745 ; 48 L. J. Ch. 660 ; 41 L. T. 272 ; 27 W. R. 865) 137, 139 
 
 Swift V. Grazebrook (13 Sim. 185) . . . gj. 
 
 Swift V. Kelly (3 Knapp, 257) ... 461 
 
 Swift V. Pannell (24 Ch. D. 210 ; 48 L. T. 351 ; 31 W. K. 543) 162 
 
 Swift II. Swift (II Jur. N. S. 458) . . 503, 509 
 
 Swift V. Swift ([1891] P. 129 ; 60 L. J. P. 14 ; 63 L. T. 711) . . . 164, 388, 451 
 
 Sykes v. Dixon (9 Ad. & El. 693 ; i P. & D. 463 ; t w. W. & H. 120) . . . .862 
 
 Sykes' Trusts, Re (6 L. T. 350 ; 2 J. & H. 415) 288, 375, 377 
 
 Sykes v. North- Eastern Railway Co. (44 L. J. C. P. 191 ; 32 L. T. 199 ; 23 W. R. 473) . 563 
 
 Sylvester, Ex parte (9 B. & C. 61) 893 
 
 Symington v. Symington (L. K. 3 H. L. So. App. 415) 513, 514 
 
 Symonds v. Hallett (24 Ch. D. 346 ; 53 L. J. Ch. 60 ; 49 L. T. 380 ; 32 W. R. 103) 
 
 360, 401, 425 
 
 Symon's Case (L. R. 5 Ch. App. 298) 713, 742, 743 
 
 Synge v. Synge ([1894] i Q. B. 466; 63 L. J. Q. B. 202 ; 70 L. T. 221 ; 42 W. R. 309 ; 
 
 58 J. P. 396) . . .145 
 
 Taber's Estate, Re, Arnold v. Kayess (46 L. T. 305 ; 30 W. R. 883) 
 Talbot V. Marsfleld (L. R. 3 Ch. App. 622 ; 19 L. T. 223) 
 
 377 
 6SS 
 
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Ixxviii TABLE OF CASES. 
 
 PAGE 
 
 Talbot ». Earl of Shrewsbury {4 Myl. & Cr. 672 ; 4 Jur. 380) . s°^' S23. 599- 634. 635 
 
 Talbot V. Stanilorth (i J. & N. 484) 549 
 
 Talbot a Talbot (I.. K. 17 Eq. 347 ; 43 L. J. Ch, 352 ; 22 W. K. 815) . . 813 
 
 Tallatire, Me (W. N. i88s> P- 191) 7H 
 
 Taner ii. Ivie (2 Ves. Sen. 466) 812, 814 
 
 Tarn, £K^ar<«, JJeTarn(S7 J. P. 789) 153 
 
 Tarn v. Emmerson, lie Long- ([1895] I Ch. 652 ; 64 L. J. Ch. 468 ; 72 L. T. 407 ; 43 
 
 W. E. 406) 298 
 
 Tarrant v. Webb (25 L. J. C. P. 261 ; 18 C. B. 797) ... • ■ . 871 
 
 Tasburgh'3 Case (i V. & B. 507) 212 
 
 Tasker v. Shepherd (30 L. J. Ex. 207 ; 6 H. & N. 575) 836 
 
 Taunton v. Morris (11 Ch. D. 779 ; 47 L. J. Ch. 721 ; 38 L. T. 552 ; 27 W. R. 718) . 211 
 Taylor, Ex parte (26 L. T. 0. S. 266 ; 4 W. E. 305 ; 2 Jur. N. S. 220 ; 8 De G. M. & Gr. 
 
 254) 769 
 
 Taylor, Jte (10 Sim. 291) $06, 507 
 
 Taylor (an Infant), lie (4 Ch. D. 157 ; 46 L. J. Ch. 399 ; 36 L. T. 169 ; 25 W. R. 69) . 508 
 
 Taylor i'. Beech (i Ves. Sen. 297) . 145 
 
 Taylor t'. Cartwright (L. K. 11 Eq. 167) .... . . . 542 
 
 Taylor v. Green (8 C. & P. 316) .269 
 
 Taylor [■. Hailstone (52 L. J. Q. B. 101 ; 47 L. T. 440) . . . 315, 315 
 
 Taylor i: Hawkins (20 L. J. Q. B. 313 ; 15 Jut. 746 ; 16 Q. B. 308) .... 855 
 
 Taylor p. Johnson (2 P. Wms. 504) 638 
 
 Taylor c. Johnston (19 Ch. D. 603 ; 51 L. J. Ch. 879 ; 46 L. T. 219 ; 30 W. E. 508) 
 
 584, 706, 726 
 
 Taylor i: Laird (25 L. J. Ex. 327 ; i H. & N. 266) 833 
 
 Taylor u. Meads (34 L. J. Ch. 203 ; 12 L. T. 6 ; 13 W. E. 394 ; 11 Jur. N. S. 166 ; 4 De 
 
 G. J. & S. 597) 189, 250, 252, 364, 368 
 
 Taylor i'. Philips (2 Ves. Sen. 23) 664 
 
 Taylor v. Taylor (L. E. 20 Eq. 155 ; 44 L. J. Ch. 718) 543, 544 
 
 Teagne, Se (L. E. 10 Eq. 564 ; 22 L. T. 742) 388 
 
 Teasdalei. Braithwaite(5Ch. D. 630; 461.. J. Ch. 725 ; 36 L. T. 601 ; 25 W. E. 546) 159,291 
 
 Tempany v. Hakewill (i F. & F. 438) 316 
 
 Tempest i: Lord Camoys (21 Ch. D. 571 ; 51 L. J. Ch. 785 ; 48 L. T. 13 ; 31 W. E. 
 
 326) 650 
 
 Templeton «. Tyree (L. E. 2 P. & D. 420 ; 41 L. J. P. M. & A. 86 ; 27 L. T. 429 ; 21 
 
 W. E. 81) gi 
 
 Tennant c. Trenchard (L. E. 4 Ch. App. 537 ; 38 L. J. Ch. 169 ; 20 L. T. 856 ; 17 VT. E. 
 
 172) 661 
 
 Tennant c. Welch (37 Ch. D. 622 ; 57 L. J. Ch. 481 ; 58 L. T. 368 ; 36 W. E. 389) . 190 
 Terry v. Hutchinson (L. E. 3 Q. B. 599 ; 37 L. J. Q. B. 257 ; 18 L. T. 521 ; 16 W. E. 
 
 932) 560.561 
 
 Terry v. Terry (Gilb. Eq. 16 ; Prec. Ch. 273) ... ..... 688 
 
 Tetley i). Griffith (57 L. T. 673; 36 W.E. 96) . . . 287,290,431 
 
 Teynham, Lady, c. Lennard (9 Mod. 40) cg^^ 50. 
 
 Tharp, In the Goods of (3 P. D. 76; 38 L. T. 867 ; 26 W. E. 776) 371 
 
 Thatcher's Trusts, Ee (26 Ch. D. 426 ; 55 L. J. Ch. 1050 ; 32 W. E. 679) . . . 644 
 Theobald v. Theobald (15 P. D. 26 ; 59 L. J. P. 21 ; 62 L. T. 187) . . . .451 
 
 Thomas, Xx parte (Amb. 146) 605 
 
 Thomas, lie, Thomas v. Howell (34 Ch. D. 166 ; 56 L. J. Ch. 9 ; 55 L. T. 629) . . 229 
 
 Thomas v. Brennan (15 L. J. Ch. 420) 1^3 
 
 Thomas v. Jones (32 L. J. Ch. 139 ; 7 L. T. 655 ; 11 W. K. 232 ; i De G. J. & S. 63) . 252 
 
 Thomas v. Price (16 L. J. Ch. 76) 388 
 
 Thomas v. Quartermaine (18 Q. B. D. 685 ; 56 L. J. Q. B. 349 ; 55 L. T. 360 ; 35 W. E. 
 
 SSS) . . . . , 872, 
 
 Thomas v. Eoberts (19 L. J. Ch. 506 ; 14 Jur. 639 ; 3 De G. & S. 758) . . 504, 526, 605 
 Thomas v. Spencer, Me Spencer (30 Ch. D. 183 ; 55 L. J. Ch. 80 ; 34 W. E. 62) . . 378 
 
 Thomas v. Thomas (7 Beav. 47) 817 
 
 Thomas i\ Thomas (25 L. J. Ch. 159 ; 2 K. & J. 79) ...... 806, 807 
 
 Thomas v. Williams (i A. & E. 6^5 ; 3 N. & M. 545) . . ' .... 864 
 
 Thomasset v. Thomasset ([1894] P. 205 ; 63 L. J. P. 140 ; 71 L. T. 148 ; 42 W. E. 658) 
 
 164, 501, 518, 590 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Thoruley v. Thornley ([1893], 2 Ch. 229 ; 62 L. Ch. 370 ; 68 L. T. 199 ; 41 W. K. 541) 
 Thompsou, Be, Stevens v. Thompson (38 Cli. D. 317 ; 57 L. J. Ch. 748 ; 59 L. T. 427) 
 
 Thompson & Curzon, Be (29 Ch. D. 177 ; 54 L. J. Ch. 610 ; 52 L. T. 4 
 
 688) 
 
 Thompson v. Bennett, Be Poole's Estate (6 Ch. D. 739 ; 46 L. J. Ch. 803 
 
 25 W. R. 862) 
 
 Thompson v. Davenport (9 B. & C. 78 ; 2 Sm. L. Caa. 395) . 
 
 Thompson v. Griffin (i Cr. & Ph. 317) 
 
 Thompson v. Havelook (i Camp. 527) 
 
 Thompson v. Howard (31 Mich. 309) 
 
 Thompson v. Leach (3 Mod. 310) 
 
 Thompson i: Eoss (29 L. J. Ex. i ; i L. T. 43 ; 5 H. & N. 16) 
 Thompson v. Kourke ([1893], P. 70 '; 62 L. J. P. 46 ; 67 L. T. 788) 
 Thompson r. Sheppard (2 Cox, Eq. Cas. 161) .... 
 Thompson i: Thompson (31 L. J. P. SI. & A. 213 ; 2 Sw. & Tr. 402 
 Thompson v. Watts (31 L. J. Ch. 445 j 6 L. T. 817 ; 10 W. B. 485 
 Thomson v. The Advocate-General (12 CI. & I", i) . 
 
 Thomber v. Sheard (12 Beav. 588) 
 
 Thorne v. Godfrey, Be Godfrey (63 L. J. Ch. 854 ; 71 L. T. 568) 
 Thorogood v. Bryan (18 L. J. C. P. 336 ; 8 C. B. 115) . 
 ThomMU V. Thornhill (14 Sim. 600) . . . 
 
 Thornton v. nUngworth (2 B. & C. 824) 
 
 Thorp V. Owen (2 Ha. 607) 
 
 Threl&U v. WUson (8 P. D. 18 ; 48 L. T. 238; 31 W. E. 508) 
 
 Thmpp i: Collett (5 Jur. N. S. ill ; 26 Beav. 147) 
 
 Thrnssell i\ Handyside (20 Q. B. D. 359 ; 57 L. J. Q. B. 347 ; 58 
 
 Thrnstout v. Coppin (3 Wils. 377) 
 
 Thynne, Lady, v. Earl of Glengall (2 H. L. Cas. 131) . 
 
 Thynne v. St. Manr, Be Duke of Somerset (34 Ch. D. 465 ; 56 L. 
 145 ; 35 ■^•'K. 273) . . . i . 
 
 Tidd V. Lister (23 L. J. Ch. 249 ; 23 L. T. O. S. loi ; 2 W. E. 184 
 Ha. 140; 3 De G. M. & G. 868) . 
 
 Tidswell, Be, Ex parte Tidswell (56 L. J. Q. B. 548 ; S7 L. T. 416 
 
 37 
 
 ISD 
 
 Tinker i: Eodwell (69 L. T. 591) . 
 
 Tinney v. Tinney (3 Atk. 8) . 
 
 Tlppett & Newbould's Contract, Be (37 Ch. D. 444 ; 58 L. T. 754 
 
 Tipping V. Tipping (i P. Wms. 729) 
 
 Tohin V. Crawford (12 L. J. Ex. 690; 9 M. & W. 716) 
 
 Todd r. Kerrick (22 L. J. Ex. i ; 17 Jur. 119 ; 8 Exeh. 
 
 Todd V. Todd (or Lynes) (22 L. T. 770) . 
 
 Toler V. Slater (L. E. 3 Q. B. 42 ; 37 L. J. Q. B. 33) 
 
 Tollemache v. Tollemache (i Sw. & Tr. 557) . 
 
 Tollett V. ToUett (2 P. Wms. 489) .... 
 
 Tolson V. Collins (4 Ves. 483) 
 
 Tomhes v. Elers (Dick. 88) 
 
 Tomkinson v. West (32 L. T. 462) .... 
 Tongue v. Allen (i Curt. 39 ; i Moo. P. C, go)' 
 Tonnies, Be, Ex parte Bishop (L. E. 8 Ch. App. 718) 
 Toogood V. Spyring (i C. M. & E. 181 ; 3 L. J. Ex. 347; 
 Towne v. Campbell (3 C. B. 921) ... 
 Townsend u. Toker (L. E. i Ch. App. 446 ; 35 L. J. Ch. 
 
 806 ; 12 Jur. N. S. 477) .... 
 Townshend v. Harrowby (4 Jur. N. S. 353) . 
 Townshend, Lord, v. Windham (2 Ves. Sen. ,7) 
 Townshend v. Windham (2 "Vem. 546) . 
 Tozer v. Lake (4 C. P. D. 322 ; 41 L. T. 280) . 
 Tree v. Quin (2 Phill, 14) . 
 
 Tremalne's Case (Stra. 168) 
 
 Trevor v. Trevor (i P. Wmf . 622) ... 
 Tricker v. Kingsbury (7 W E. 652) 
 
 608 ; 14 
 
 8 .Jiiv. N 
 
 T- 344) 
 
 . Ch 
 
 733 
 
 33 W. R. 
 
 L T 
 
 PAGE 
 187 
 424 
 
 357 
 
 119; 
 
 . 318 
 
 . 880 
 
 647, 649 
 
 . 846 
 
 S. 760) 
 
 559 
 724 
 562 
 448 
 814 
 514 
 228 
 
 ■ 485 
 536, 537 
 
 ■ 392 
 
 • 803 
 694 
 
 722, 760 
 642, 643 
 
 ■ 424 
 
 • 825 
 . 872 
 
 ■ 328 
 126, 540, 542 
 
 56 L. T. 
 424, 811, 813, 816 
 18 Jur. 543 ; 10 
 
 . 210, 211 
 35 \V. E. 669) 
 
 298, 299 
 
 529 
 
 225 
 
 378 
 
 . 408 
 
 • 877 
 . 824 
 
 • 499. SOI 
 183 
 
 • 83, 472 
 
 • 548 
 
 ■ 542 
 
 • 787 
 . 828 
 . 91 
 . 162 
 
 852, 85s, 856 
 
 • 832 
 14 W. E. 
 
 35 W. E. 
 
 L. T, 
 
 531 
 
 597) 
 
 . 129 
 
 • 137 
 
 . 408 
 
 821, 825 
 
 . 580 
 
 ■ 94 
 618, 634 
 
 141. 14s 
 
 10 
 
 Digitized by Microsoft® 
 
Ixxx 
 
 TABLE OF CASES. 
 
 PAGE 
 
 TroUope v. Linton (i Sim. & St. 477) 772 
 
 Troutbeok v. Baaghey (L. E. 2 Eq. 534 ; 35 L. J. Ch. 840 ; 14 W. K. 790) . . .368 
 Trowell v. Shenton (8 Ch. D. 318 ; 47 L. J. Ch. 738 ; 38 L. T. 369 ; 26 W. E. 837) . 160 
 
 Trueman v. Loder (11 A. & E. 589) 880 
 
 Trye v. Sullivan, Jie, Young (28 Ch. D. 705 ; 54 I.. J. Ch. 1065 ; 52 L. T. 754 ; 33 W. K. 
 
 729) 296 
 
 Tubb V. Harrison (4 T. E. 118) 516 
 
 Tuclier, Jie, Emmanuel v. Parflt (54 L. J. Ch. 874 ; 51 L. T. 923 ; 33 W. E. 932) . 357 
 
 Tucker v. Bennett (38 Ch. D. i i 57 L. J. Ch. 507 ; 58 L. T. 650) 149, 151, 152, 536, 792 
 
 Tucker v. Burrow (11 Jur. N. S. 525) 545 ' 
 
 Tuft, lie, Ex parte Nottingham (19 Q. B. D. 88 ; 56 L. J. Q. B. 440 ; 56 L. T. 573 ; 35 
 
 W. R. 373) ... 299 
 
 Tug-man v. Hopkins (4 M. & G. 389 ; 5 Sc. N. E. 464) ... ... 231 
 
 TuUett V. Armstrong (4 Myl. & Cr. 390 ; I Bear. 21) . . . 344, 345, 349, 375, 377 
 TurnbuU v. Forman (ij Q. B. D. 234 ; 54 L. J. Q. B. 489 ; 53 L. T. 128 ; 33 W. E. 768) 
 
 286, 358, 391 
 Turner, Me, Glenister v. Harding (29 Ch. D. 985 ; 53 L. T. 528) .... 567, 820 
 
 Turner, In the Goods of (12 P. D. 18 ; 56 L. J. P. 41 ; 57 L. T. 372 ; 35 W. E. 
 
 384) 235 
 
 Turner (/. c, Thompson) v. Thompson (13 P. D. 37 ; 57 L. J. P. 40 ; 58 L. T. 387 ; 36 
 
 W. E. 702) 84, 467 
 
 Turner v. Caulfleld (L. E. 7 Ir. Ch. 347) • . . 258 
 
 Turner v. Collins (L. E. 12 Eq. 438 ; L. E. 7 Ch. App. 329 ; 41 L. J. Ch. 558 ; 25 L. T. 
 
 779 J 20 W. E. 305) 536, 538 
 
 Turner v. Corney (5 Beav. 517) 626 
 
 Turner v. Frisby (i Stra. 168) 749 
 
 Turner v. King, lie DaTenport ([1895] i Ch. 361 j 64 L. J. Ch. 252 ; 71 L. T. 875 ; 43 
 
 W. E. 217) 374 
 
 Turner v. Mason (14 L. J. Ex. 311 ; 14 M. & W. 112 ; 2 D. & L. 898) . . . 832, 860 
 
 Turner v. Meyers (i Hag. Con. Eep. 414) 76, 77 
 
 Turner v. Eobinson (5 B. & Ad. 789) .... 860 
 
 Turner v. Kookes (10 A. & E. 47 ; 2 P. & D. 240) ... . . 168, 315, 316 
 
 Turner v. Turner (11 Ves. 606) 641 
 
 Turner «. Winter (Selw. N. P. 229) . 3,2 
 
 Turner v. Wright (2 De G. F. & J. 234 ; Johns. 740) 682 
 
 Turner's Case, Sir E. (i Vern. 7) 210 
 
 Turner's Nullity of Marriage Bill (17 Hans. Pari. Deb. N. S. 1133) . . 69, 71 
 
 Turton v. Benson (i P. Wms. 496 ; 2 Vern. 764) ... . . .11 
 
 Tussaud's Estate, Se, Tussaud v. Tussaud (9 Ch. D. 363 ; 47 ; L. J. Ch. 849 ; 39 L. T. 
 
 113; 26W. E. 874) 132,542 
 
 Tweddell v. Tweddell (T. & E. 13) .651 
 
 Twigg's Estate, lie, Twigg v. Black ([1892] i Ch. 579 ; 61 L. ,r. Ch. 444 : 66 L. T. 601 ; 
 
 40 W. E. 297) 
 
 Twistleton v. GrifBth (i P. Wms. 310) .... 
 
 Twyne's Case (3 Eep. 80 6) 
 
 Tyler v. Bell (2 Myl. & Cr. 89) . . . . 
 
 Tyler v. Lake (4 Sim. 144 j 2 Euss. & Myl. 183) 
 
 Tyrrell v. Hope (2 Atk. 558) 
 
 • 239 
 
 • 548 
 ■ IS4 
 
 • 274 
 
 • 347 
 345. 347 
 
 454. 
 
 U. (/. c. J.) V. J. (37 L. J. P. M. & A. 7 ; 16 W. E. 518) 
 
 Udny V. Udny (L. E. i Sc. App. 441) 
 
 Ullee, Jie, (54 L. T. 286) 
 
 TJlveratone Union v. Park (53 J. P. 629) ... 
 Umbleby v. Kirk (i C. P. Coop. 254) ... 
 Ungley v. Ungley (5 Ch. D. 887 ; 46 L. J. Ch. 854 ; 37 L. T. 52 ; 25 W. E 
 
 United States r. Bainbridge (i Mason, 83) 
 
 Unity Joint Stock Banking Association, Bx parte, Se King (27 L. J. Bk 
 
 0. S. 246 ; 4 Jur. N. S. 1257 ; 3 De G. & J. 67) . 
 Upton V. The Attorney-General (32 L. J. P. M. & A. 177) 
 
 Urmston v. Newcomen (4 A. & E. 899) 
 
 Utterton v. Tewsh (Ferg. Cons. Eep. 23) ... . 
 
 456. 485, 
 523. 575. 
 
 •733) . 
 33 ; 30 L. 
 
 . 64 
 486, 487 
 589. 598 
 478, 483 
 
 . 680 
 
 • 145 
 . 768 
 
 T. 
 725. 737 
 
 • 489 
 
 • 519 
 . 466 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. Ixxxi 
 
 rAGE 
 
 Valentini I'. Canali (24 Q. B. D. 166 ; 59 L. .1. Q. B. 74 ; 61 L. T. 371 ; 38 ^V. K. 331) 
 
 735' 752. 769 
 Van i: Barnett (19 \'es. 102) . . ... 728 
 
 Van Amam r. Ayers (67 Barb. S44(Amer.) . . 171 
 
 Vandeleur i: Vandelour (3 CI. & F. 8i) . . . . . 153 
 
 Vandergucht i: De Blaqulere (5 Myl. & Cr. 229 ; 3 ,lur. 1116) 442 
 
 Vane v. Vaue (2 Ch. D. 124; 45 L. J. Cli. 381 ; 34 L. T. 613 ; 24 W. E. 602) . 613 
 
 Vane's Case, Lord (8 East, 171 11) 170 
 
 Vansittart, 7ie, Brown I. Vansittart (67 L. T. 592; 41 W. K. 32; . ... 295 
 
 Vansittart v. Vansitturt (27 L. J. Ch. 290 ; 4 K. & J. 62 ; 2 De G. & .1. 249) 
 
 168, 291, 437, 439, 445, 492 
 
 Vardon's Trusts, He (31 Ch. D. 275; 55 L. J. Ch. 259 ; 53 L. T. 895; 34 W. R. 185) 
 
 134. 38s. 389. 390. 77S 
 Vaucher r. The Solicitor to the Treasury, Me Grove (40 Ch. D. 216 ; 58 L. J. Ch. 57 ; 59 
 
 L. T. 587 ; 37 W. E. I) . . . . . . . . 485, 568 
 
 Vaughan c. Buck (7 Jur. 338 ; 13 Sim. 404) . . . . 2H 
 
 Vaugrhan i'. Vanderstegen (2 W. E, 293 ; 2 Dr. 363; . . . 272, 274, 395 
 
 Veal !'. Veal (L. E. 4 Eq. 115) .... . . 212 
 
 Venables r. Smith (2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 L. T. 509 ; 25 W. E. 584) . 883 
 Venes i: Marriott, Se Serros' Estate (31 L. J. Ch. 519! . . . 826 
 
 Venus, The (8 Cr. 253) ... . . . ... 456 
 
 Vernall, £'a;j)ar«e, iJe CookCioMorr. Bank. Ecp. 8) 301 
 
 Vernon r. Vernon (cited Cas. temp. Talb. 58, and 2 1'. Wms. 113) . 635, 787 
 
 Ternon'sCase (4Eep. 3a) . . 224 
 
 Viant's Trusts, Me (L. E. 18 Eq. 436; 43 L. J. Ch. 832; 30 L. T. 544; 22 W. E. 
 
 686) ■ 138 
 
 Vickers, Me, Vickers i: Viokers (37 Ch. D. 525 ; 57 L,. J. Ch, 738 ; 58 L. T. 920 ; 36 W. E 
 
 S4S ■ ■ 54° 
 
 Vidler v. CoUyer, Me Plomley (47 L. T. 283) . . . . . 505, 796, 798 
 
 Villareal v. Mellish (2 Swanst. 533) 494, 495, 588, 599 
 
 Vine V. Saunders (4 Bing. N. C. 96) ... . . 269, 270, 428 
 
 Vineall r. Veuess (4 F. & r. 344) . . . . 113 
 
 Viner v. Vaughan (2 Beav. 466) . ... 684 
 
 ViTian v. Kennelly (63 L. T. 778) ... . . . . 819 
 
 Vose V. Lancashire and Yorkshire Eailway Co. (27 L. J. Ex. 249 ; 4 Jur. X. S. 364 : 2 
 
 H. & N. 728) . 874 
 
 Voysey r. ilartin (cited Stephen's Laws Eelating to the Clergy, 743) . 94 
 
 W. V. H. (30 L. J. P. M. & A. 73) . . . . . . . 64 
 
 W. (/. c. E.) r. E. (I P. D. 40S) . . . .66 
 
 "Wade V. Broughton (3 V. & B. 172) . . . . . 790 
 
 Wade V. Hopkinson (19 Beav. 613) . . . . 795 
 
 Wade-Gery. v. Handley (3 Ch. D. 374 ; 45 L. .J. Ch. 712 ; 35 L. T. 85) . 638 
 
 Wadsworlh r. Dayrell (4 W. E. 689) . 295, 399 
 
 Wadsworth t'. Gye (Sid. 216 ; i Kcb. 820) . . . . ... 848 
 
 Wagstafl i: Smith (g Ves. 520) ... . 347, 367, 375 
 
 Waite V. Morland (38 Ch. D. 135 ; 57 L. J. Ch. 655 ; 59 L. T. 185 ; 36 W. E. 484) 
 
 19s. 199, 3SI= 377 
 
 Waine v. Waine (cited Chamb. Ini. 36) .... . ... 494 
 
 Wainfordi;. Heyl (L. E. 20 Eq. 321 ; 44 L. J. Ch. 567 ; 33 L. T. 1551 
 
 269, 271, 272, 27s, 281, 283, 333 
 
 Waite V. North-Eastem Eailway Co. (38 L. J. Q. B. 258 ; EI. B. & El. 728) . 563, 803 
 
 Waite V. Waite (5 Bing. N. C. 341) .... . .436 
 
 Waithman v. Wakefield (i Camp. 120) .... 304 
 
 Wake v. Parker (2 Keen, 59) . . . 4^3 
 
 Wakefield v. Mackay (i Phil. 134 n) . • 68, 69, 70 
 
 Wakefield v. Wakefield (i Hag. Con. E. 394) . 91, 92 
 
 Waldegravc Peerage, The (4 CI. & F. 649) no 
 
 Waldo V. Waldo (i F. & F. 173) . . . 766 
 
 WaUord v. Gray (13 W. E. 761) . 127. 145 
 
 Walker r. British Guarantee Association (18 Q. B. 277; . . . 838 
 
 / 
 
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Ixxxii TABLE OF CASES. 
 
 PAGE- 
 
 Walker v. Gammage, 7.v Natt (37 Ch. D. 517 ; 57 L. J- Ch. 797 : S8 ^- T. 722 ; 36 W. 
 
 E. 548). . . -544 
 
 Walker d. Great -Westorn Eailway Co. ( L. K. 2 Ex. 228 : 36 L. J. Ex. 123) . . . 878- 
 Walker v. Laxton (70 L. T. 690) • .... . 033; 
 
 Walkeri'. Symonda(3 Swanst. I) . 664,690,698 
 
 Walker v. Wetherall (6 Vea. 473) ... • ... 662 
 
 Walker's Case, Anne (LI. & G. 325) • • 795 
 
 Wall V. Stanwick (34 Ch. D. 736 ; 56 L. J. Cli. 501 ; 56 L. T. 309 ; 35 W. K. 701) 
 
 529, 530tS89. 592. 806 • 
 Walli). Tomlinson (16 Ves. 413; ... . .... 200 
 
 Wallaoei). AulcUo(iDr. &Sm. 216; I DeG. J. & S.643) . . • 208,209 
 
 Wallace r. Wallace (2 Dr. & W. 452 ; i Con. & Law, 491) • • 53^ 
 
 Walley v. Holt {35 L. T. 631) . . ■ • • 757 
 
 Wallis r. Biddick (22 W. E. 76) . . • • 31°. 3^5 
 
 Wallis i;. Hodson (2 Atk. 114) . .... . . 809' 
 
 Walmesley v. Walmesley (69 L. T. 152) ... • • 447" 
 
 Walrond v. Walrond (Jolm. 18) .... . . . 291 
 
 Walsh V. Trevauion (16 Sim. 181) .. . • • 730' 
 
 Walsh V. Walley (L. E. 9 Q. B. 367 ; 43 L. J. Q. B. 102 ; 22 W. B. 571) . . 833, 865 
 
 Walsh V. Walsh (i Dr. 64) ■ . • • 656 
 
 Walter, Ee (7 Times Kep. 445) • ■ 433 
 
 Walter i: Eyerard ([1891] 2 Q. B. 369; 60 L. J. Q. B. 738 ; 65 L. T. 443 ; 39 W. E. 676) 
 
 746, 748, 753, 843, 
 Wankford v. WanMord (i Salk. 306) ... . . . . 329. 
 
 Wanstall v. Pooley (6 CI. & Fin. 910 n ) . . . 884 
 
 Want r, Stallibrass (L. E. 8 Ex. 175 ; 42 L. .T. Ex. 108 ; 21 W. E. 685) . 665 
 
 Ward V. Evans (5 Ld. Eaym. 928) . ' 878' 
 
 Ward V. Ward (14 Ch. D. 506 ; 49 L. J. Cli. 409; 42 L. T. 523 ; 28 W. E. 943) 187, 210 ■ 
 
 Ward r. Ward (3 Mer. 706) . . . . • • 813 
 
 Ward f. Ward (6 Beav. 251) ... .811 
 
 Ward V. Yates (i Dr. & S. 80) . . . . . . . . 211 
 
 Ward's Trust, Jle (L. E. 7 Ch. App. 727; 42 L. J. Ch. 4; 27 L. T. 668 ; zo W. E. 
 
 1024) . . • ■ 655 
 
 Warde r. Eirmin (II Sim. 235) .... . . . 544 
 
 Warde v. Warde (Amb. 299) . .... 224 
 
 Warde i: Warde (2 Ph. 786) . 507 
 
 Warden v. Jones (26 L. J. Ch. 427 ; 29 L. T. 0. S. 139; 5 W. E. 446 ; 3 Jur. N. S. 456) 
 
 129, I44' 
 Ware, He, Cumberlege v. Cumberleg:e-Ware (45 Ch. D. 269 ; 59 L. J. Ch. 717 ; 63 L! T. 
 
 52 ; 38 W. E. 767) . 137 
 
 Ware v. Gardner (L. E. 7 Eq. 317 ; 38 L. J. Ch. 348 ; 30 L. T. 71 ; 17 W. B. 439) . 157 
 Warne v. Eoutledge (L. E. 18 Eq. 497 ; 43 L. J. Ch. 604 ; 30 L. T. 857 ; 22 W. E. 750) 401 
 Warner, jEx parte (4 Bro. C. C. 101) .... .... 503 
 
 Warr i". Warr (i'rec. Ch. 213) .... 655 
 
 Warren, In the Goods of (L. K. i P. & D. 538 ; 37 L. J. P. M. & A. 12) . .328 
 
 Warren's Settlement, iJe ( 52 L. J. Ch. 928) 386 
 
 Warrender v. WaiTender (2 CI. & F. 488) . . 167, 456, 466, 472 
 
 Warrington v. Wan-ington (2 Ha. 54 ; 6 Jur. 872) . ... 187 
 
 Warter t'. (13 Ves. 92) . ... ... . . 637 
 
 Warter v. Warter [No. i] (15 P. D. 35 ; 59 L. J. P. 45 ; 62 L. T. 328) . 488' 
 
 Warter J). Torke (19 Tea. 451) . ... 788' 
 
 Warwick r. Bruce ( 2 M. &. S. 205) ... 732, 733 
 
 Warmck v. Wai"wick (3 Atk. 293) .... . 14S 
 
 Warwicker v. Bretnall (23 Ch. D. 188 ; 31 W. E. 520) . 681 
 
 Waterlow v. Sharp (W. N. 1867, 64) . . . . 694' 
 
 Waters v. Broaden (i Y. & J. 457) . 878' 
 
 Watkins, JSx parte (2 Ves. 470) 601, 608 
 
 Watson, Exparte (16 Ves. 265) . . 737 
 
 Watson, Jie. Kx parte Merrett (7 Morr. Bank. Eep. 65) 321 
 
 Watson V. Hayes (5 Myl. & Cr. 125) . . 638' 
 
 Watson V, Marshall (17 Bear. 363 ; 22 L. J. Ch, 895) . 212- 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 Ixxxiii 
 
 Watson v. Thorpe (Cro. Jac. 239) . 
 
 Watson V. Threlkeld (2 Esp. 637) . 
 
 Watson r. Watson (33 Beav. 574) . 
 
 Watts i'. Cresswell (9 Vin. Abr. 415) 
 
 Watts !-. Haiswell (citea 2 Ed. 73) 
 
 Watts II. Watts (12 Court Sess. Cas. 4th Scries [Kettle] 894) 
 
 Wauchope v. Sandilands (3 Mar. 1607 MSS. Eec. Com. Court, vol. xxxvii.) 
 
 Wayland's Case (3 Salk. 234) 
 
 Wear r. Wilkinson (cited 13 A'cs. 92) 
 Weatherston I'. Hawkins (I T. E. no) . 
 
 Webb v. Grace (2 Ph. 701) 
 
 Webley v. Webley (64 L. T. 839) 
 
 Webster v. Eickards, lie Hobson (55 L. J. Ch. 300 ; 34 W. E. 195) 
 
 Webster r. Webster (22 L. J. Ch. 837 ; 4 De G. M. & G. 437 j i Sim. & Giff. 489) 
 
 PAGE 
 269 
 
 .S44 
 740 
 740 
 43 
 34 
 877 
 
 ■ 637 
 
 854. 855 
 
 10, II 
 
 • S14 
 
 • 357 
 
 • 443 
 
 Wedderbum i: Wedderburn (4 Myl. & Cr. 41) . .... 584, 698, 703 
 
 Weir v. Bell (3 Ex. D. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 929 ; 26 W. E. 746) . 881, 883 
 
 Welch, lie (32 L. J. Ch. 344) . . 656 
 
 Welch V. Channell, lie Evans (26 Ch. D. 58 ; 53 L. J. Ch. 709 ; 51 L. T. 175 ; 32 W. K. 
 
 736) .... • ■ -657 
 
 Weld v. Chamberlayne (2 Show. 300) 15 
 
 Welde 1'. Welde (2 Lee, 578) .... 64, 65 
 
 Weldon v. De Bathe (14 Q. B. D. 339 ; 54 L. J. Q. B. 113 ; 53 L. T. 520 ; 33 W. E. 
 
 328) 359. 402. 424 
 
 Weldon r. Neal (15 Q. B. D. 471 ; 54 L. J. Q. B. 399 ; 51 L. T. 289 ; 33 W. E. 581) . 425 
 Weldon i: Scattergood (W. K 1887, 69) . . , . ... 424 
 
 Weldon v. Weldon (54 L. J. P. 60 ; 52 L. T. 233 ; 33 AV, E. 427) .... 452 
 
 Weldon r. Winslow (13 Q. B. D. 784 j 53 L. J. Q. B. 528 ; 51 L. T. 643; 33 W. E. 219 
 
 173' 334. 420, 424 
 WeUs, Xe, Wells v. WeUs (43 Ch. D. 281 ; 59 L. J. Ch. 113; 61 L. T. 806; 38 W. K. 
 
 327) ^44 
 
 Wells V. Barwlck, Me Hardy (17 Ch. D. 798 ; 50 L. J. Ch. 241 ; 44 L. T. 49 ; 29 ^V. E. 
 
 834) ... . . . .... .295 
 
 Wellesley v. Duke of Beaufort (2 Buss, i ; 2 Euss. & M. 639) 
 
 88, 89, 493, 498, 502, 503, 588, 603, 604, 60s, 650. 651. 784. 786. 797 
 
 546 
 152 
 138 
 168 
 
 48 L. .J. Ch. 723 ; 
 
 Wellesley i\ Lord WComington (19 Jur. 1202 ; 2 K. & J. 143) 
 
 Welman v. Welman (15 Ch. D. 570 ; 49 L. J. Ch. 736 i 43 L. T. 145) . 
 
 Welstead, Be, Welstead v. Leeds (47 L. T. 331) 
 
 Wenman v. Ash (13 C. B. 836) . 
 
 Wenman v. Lyon & Coy. ([1891] 2 Q. B. 192 ; 60 L. J. Q. B. 663 ; 65 L. T. 136 ; 39 W. E. 
 
 519) .... 
 
 Wennall r. Adney (3 B. & P. 247) 
 
 Wennhak v. Morgan (20 Q. B. D. 635 ; 57 L. J. Q. B. 241 ; 59 L. T. 28 ; 36 W. E. 697) 
 West V. Erissey (i Br. P. C. 225) .... 
 
 Westby v. Westby (2 C. P. Coop. 210) 
 
 Westlake v. Adams (22 L. J. C. P. 271 ; s C- B. N. S. 248) 
 West of England Bank, Be, Ex parte Hatcher (12 Ch. D. 284 
 
 L. T. 181 ; 27 W. E. 907) 
 
 Westmeath v. Salisbury (5 Bli. N. E. 339) 
 
 Westmeath v. Westmeath (Jac. 126) 
 
 Westropp's Divorce Bill (12 App. Cas. 294) 
 
 Weston's Case (L. E. 5 Ch. App. 614 ; 39 L. J. Ch. 753 
 
 Westover v. CJhapman (i Coll. 177) . 
 
 Westwick v. Theodore (L. E. 10 Q. B. 124 ; 42 L. J. Q. B, 
 
 620) • • • 
 
 Wetherell v. Wilson (i Keen, 80) . 
 
 Wharton v. Lewis (i C. & P. 529) . 
 
 Wharton v. Mackenzie (13 L. J. Q. B. 130; 5 Q. B. 606) 
 
 Whatman v. Pearson (L. E. 3 C. P. 422) .... •■ 
 
 Wheatley, Be, Smith v. Spence (27 Ch. D. 606; 54 L. .1. I'li. 201 ; 51 L. T, 681 
 
 W. E. 275) • ■, j • 
 
 Wheeler r. Caryl (Amb. 121) . • ' 
 
 129 
 868 
 168 
 151 
 693 
 845 
 41 
 
 262, 265 
 
 442 
 
 ■ 435. 443 
 
 . 60 
 
 23 L. T. 287 ; 18 W. E. 957) . 743 
 
 688 
 
 no ; 32 L. T. 696 ; 23 W. E. 
 
 848, 849 
 642 
 118 
 
 749 
 887 
 
 33 
 
 385. 775 
 129, 163 
 
 Digitized by Microsoft® 
 
I'AGB 
 
 828 
 
 533 
 794 
 204 
 127 
 
 Ixxxiv TABLE OF CASES. 
 
 Whelan v. Talinqr (39 Ch. D. 648 ; 57 L. J. Ch. 784 ; 58 L. T. 937 ; 36 W. H. 587) 
 
 227. S4S. 547 
 
 Whelpdale's Case (5 Eep. 119) • • ■ • 724 
 
 . Whlncup V. Hnghes (L. K. 6 C. P. 78 ; 40 L. J. C. P. 104 ; 24 L. T. 74 ; 19 W. E. 439) 848 
 Whitaker, Me, Christian p. Whitaker (34 Ch.D. 227 ; 56 L. J. Ch. 251 ; 56 L. T. 34; 35 
 
 W.E.217) • ■ ■ '36,379 
 
 Whitaker v. Van der Smissen (4 T. L. E. 707) • • • . . 286 
 
 White V. Baugh (9 Bli. 181 ; 3 CI. & Fin. 44) . 689, 695 
 
 White V. Bayley (10 C. B. N. S. 227 ; 7 Jur. N. S. 948 ; 30 L. J. C. P. 253) . . 840 
 
 White V. Culyer (i Esp. 200) 
 
 White V. Henry (24 Me. 531) . • • • ... 
 
 White V. Herrick (L. E. 4 Ch. App. 345 ; 20 L. T. 386 ; 17 W. E. 522) . 
 
 White V. Herring (2 Ph. 731) . • • .... 
 
 White V. Thomborough (2 Vern. 702) .... 
 
 Whitehead, JBx parte, Be Whitehead (14 Q. B. D. 419 ; 54 L. J. Q. B. 240 ; 52 L. T 
 
 597 ; 33 W. e: 471) • 294 
 
 Whitehouse, He, Whltehouse v. Edwards (37 Ch. D. 683 ; 57 L. J. Ch. 161 ; 57 L. T. 
 
 761 i 36 W. B. 181) • • 544 
 
 Whiteley v. Adams (33 L. J. C. P. 89 ; 15 C. B. N. S. 392) ... . 852, 855 
 
 Whiteley v. Pepper (2 Q. B. D. 276 ; 46 L. J. Q. B. 436 ; 36 L. T. 588 ; 25 W. B. 607) . 888 
 Whitfield, .Eaj^arte (4 Atk. 315) .... • .650 
 
 Whitfield V. Hayes (12 Ves. 492) ... 503 
 
 Whittaker, lie, Whittaker v. Whittaker (21 Ch. D. 657 ; 51 L. J. Ch. 737 ; 46 L. T. 802 ; 
 
 30 W. E. 787) • ■ 293, 294, 295, 317 
 
 Whittaker ti. Kershaw (45 Ch. D. 230; 60 L. J. Ch. 9 ; 63 L. T. 203 ; 39 W. E. 23) 
 
 288, 332, 383, 424, 430 
 Whittaker v. Marlar (i Cox, Eq. Cas. 285) . 8x4 
 
 Whitmore v. Ma£on (2 J. & H. 214) ■ • • . 140 
 
 Whlttlngham v. Murdy (60 L. T. 956J . . • 74°. 764> 765. 7^7 
 
 Whittingham's Case (8 Eep. 43) . . . • 727. 768 
 
 Whittle V. Henning (2 Ph. 731) . . • ■ • • -374 
 
 Whltworth V. Whitworth ([1893] P. 85 ; 62 L. .1. P. 71 ; 68 L. T. 467; 41 W. E. 205) . 447 
 Widgery v. Tepper (7 Ch. D. 423 ; 47 L. J. Ch. 578 ; 38 L. T. 434 ; 26 W. E. 546) 200 
 
 Wickham 1;. Wlckham (6 P. D. II; 43 L. T. 445) 82 
 
 Wicks V. Wicks (W. N. 1887, 15) -815 
 
 Wiedemann')). Walpole ([i8gi] 2 Q. B. 534 ; 60 L. J. Q. B. 762 ; 40 W. E. 114) . . 116 
 Wigmore v. Jay (19 L. J. Ex. 300 ; 14 Jnr. 837 ; 5 Ex. 354) . . 869 
 
 Wig-more's Case (2 Salk. 437) ... . . .16 
 
 Wilcox V. Gotfrey (26 L. T. 481) . . . . 115 
 
 Wild V. Han-ls (18 L. J. C. P. 297 ; 7 C. B. 999) . . . . . 114, 115 
 
 Wilder V. Piggott (22 Ch. D. 263; 52 L. .J. Ch. 263 ; 48 L. T. 112; 31 W. E. 377) . 773 
 
 Wilkin V. Eeed (15 C. B. 192) . . . . 858 
 
 Wilkinson, Ee Joanna (3 PhlU. 96) . . . . 328 
 
 Wilkinson v. Adam (i V. & B. 42) . . . . . 569 
 
 Wilkinson v. Gibson (L. E. 4 Eq. 162 ; 36 L. J. Ch. 646 ; 16 L. T. 733 ; 15 W. E. 983) 203 
 Wilkinson v. Joughin (41 L. J . Ch. 234) . . .791, 795 
 
 Wilkinson v. Miles (i Sid. 250) . . 592 
 
 Wilkinson K.'Nelson (9 W. E. 393) . . . . 151 
 
 Wilkinson v. Parry (4 Riiss. 272; 661 
 
 Wilkinson v. Wilkinson (4 Not. Cas. 295 ) 77 
 
 WUkinson v. Wilkinson (69 L. T. 459) ... . 442 
 
 Willetts V. Green (3 C. & K. 59) . . . . . . . 838 
 
 Williams, Jle (2 Scott, N. E. 120) . . . . 191 
 
 Williams, In the Goods of (67 L. T. 502J .... . 371 
 
 Williams v. Clongh (27 L. J. Ex. 325 ; 3 H. & N. 258) . . . . 873 
 
 Williams v. Great Western Eailway Co. (L. E. 9 Exch. 137 ; 43 L. J. Ex. 105 ; 31 L. T. 
 
 124 ; 22 W. E. 531) ... 802 
 
 Williams v. Meroier (10 App. Cas. i ; 54 L. J. Q. B. 148 ; 52 L. T. 662 ; 33 W. E. 373) 
 
 138, 263 
 Williams v. Moor (12 L. J. Ex. 253 ; 11 M. & W. 256) . . . 726, 732, 736, 752 
 
 Williams 41. Smith (i Jnr.N. S. 163; 4 El. & Bl. 180) . . . . . 752 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. Ixxxv 
 
 VAGE 
 
 Williams !•, Williams (30 L. J. P. M. & A. 73 : 4 I.. T. 89 ; 9 W. li. 619) . . 64 
 
 Williams v. Williams (cited on p. 818) . . . . . . 81& 
 
 Williams c. Williams (I Bro. C. C. 152) . . 772 
 
 Williamson v. Watts (i Camp. 552) . . 752 
 
 Willis?'. AVhitewood 0'«i'- Abr. Gai'd. ((_;.■)) , . . ■ S91 
 
 Willis V. Willis (61 L. T. 610 : 38 W. E. 7) . . . 671 
 
 Willis J). Willis (34 L. J. ni. 313; 13 M'. H. 533 ; 34 Bcav. 340) . . . . 226 
 
 Willock i'. Noble (L. K. 7 H. L. Cas. 580 ; 44 L. J. Ch. 345 ; 32 L. T. 410 ; 23 W. 1!. 809) 
 
 250, 251, 252, 363, 370 
 Willou8:hby (an Infant), fle(30 Ch. D. 324 ; 54 L. J. Ch. 1122 ; 53 L.T. 926 ; 33 W. Ti. 
 
 850) .... . 605, 607, 783 
 
 Wilson, He, Alexander i'. Calder (28 Ch. D. 457 ; 54 L. .J. Ch. 487 ; 33 W. H. 579) 807 
 
 Wilson i>. Ann, Me Ann ([1894] i Ch. 549 ; 63 L. J. Ch. 334 ; 70 1.. T. 273) . 374, 396 
 
 Wilson r. Barker (4 B. & Ad. 614) ..... . . .885 
 
 Wilson i\ Brocklej- (I Phill. 132) . . 92 
 
 Wilson r. Ford (L. E. 3 Ex. 63; 37 L. J. Ex. 60 ; 17 L. T. 605 ; 16 W. B. 482) . . 315 
 Wilson i: Glossop (19 Q. B. D. 379 ; 20 Q. B. D. 354 ; 57 L. J. Q. B. i6i ; 58 L. T. 707; 
 
 36 W. E. 77) . . . 313 
 
 Wilson r. M'Millan (62 Ga. 16 (Amer.)) . . . . 533 
 
 Wilson r. Merry (L. E. i Sc. & Div. App. 326; 19 L. T. 30)-. . . 870 
 
 Wilson V. Mushett (3 B. & Ad. 743) 443 
 
 Wilson 1-. Eankin (35 L. J. Q. B. 87) . . . 888 
 
 Wilson V. Stewart (8 L. T. 277 ; 3 B. & S. 913 ; 9 Jur. N. S. 1130; . 893 
 
 Wilson V. Tununon (6 Scott, N. B. 894) ... .885 
 
 Wilson i: Turner (.22 Ch. D. 521 ; 52 L. J. Ch. 70 ; 48 L. T. 370 ; 31 M'. E. 438 
 
 647, 649, 650 
 Wilson v. Wilson (i H. L. Cas. 538) . . . 437, 438, 439, 440, 445, 465, 467, 472 
 
 Wilson's Trusts, He (L. E. i Eq. 247 ; 35 T.. J. Ch, 243 ; 13 L. T. 576 ; 14 W. E. 161 ; 
 
 12 Jut. N. S. 132) . . .80 
 
 Willoughby r. Middleton (10 W. E. 460 : 2 J. tSc H. 344) . . 134, 385, 773, 774, 775 
 WlUoughby-Osborne v. Holyoake (22 Ch. D. 238 ; 52 L. J. Ch. 231 ; 48 I.. T. 152 ; 31 
 
 W. E. 236) .... . .373 
 
 Wilts and Somerset Eailway Co., lie. Ex parte Brewer (2 Dr. & Sm. 552) . 782 
 
 Wiltshire v. Prince (2 Hag. Eccl. E. 332) . . . > . . 91 
 
 Wing V. Angraye (L. E. 8 H. L. Cas. 183 ; 30 L. J. Ch. 65) ■ . . 235, 252 
 
 Wing V. Taylor (/. c. Wing) (30 L. J. M. C. 258 ; 4 L. T. N. S. 583 ; 7 Jur. X. S. 737 ; 
 
 2 S. & T. 278) ... ... 79 
 
 Winsmore r. Greenbank (Willes, 577) . . . . 171 
 
 Winstone v. Linn (i B. & C. 460 ; 2 U. & E. 265) . 843, 846, 848, 849, 866 
 
 Wintle, Re (L. E. 9 Eq. 373 ; 21 L. T. 781 ; i8 W. E. 394) . . 820 
 
 Winyard v. Toogood (10 Q. B. D. 218 ; ,52 L. J. M. C. 25 ; 48 L. T. 229 ; 31 W. E. 
 
 271) .... . . . . . .522 
 
 Wise V. Wilson (i C. & K. 662) ... . . 849 
 
 Witherby v. Eackbam (60 L. J. Ch. 511 ; 39 W. E. 363) . . 205 
 
 Witt V. Witt ([1891], V. 163; 60 L. J. P. 63 ; 64 L. T. 121 ; 29 W. E. 432) . . 514 
 
 Witte, £j;^orte (13 C. B. 680) . 496 
 
 Witten (an Infant), Re (57 L. T. 336) . 511 
 
 Witts V. Dawkins (12 Ves. 501) . . -376 
 
 Witty V. Marshall (i Y. & C. C. C. 68) . 523, 527 
 
 Wolfe r. Great Northern EaUway (Ireland) (20 L. E. Ir. 548) . 563 
 
 WoUaston v. Tribe (L. E. 9 Eq. 44 ; 21 L. T. 449) . . 147, 149 
 
 Wolverhampton and Staffordshire Banking Co. v. George (24 Ch. D. 707) . . 731 
 
 Wood V. Briant (2 Atk. 521) . . . . . 542 
 
 Wood V. Downes (18 Ves. 120) • 70S 
 
 Wood r. Fenwick (10 M. & W. 195) . 754 
 
 Wood !'. Wood (19 W. E. 1049) . . .401 
 
 Wood V. Wood (7 Bear. 183) . . 226 
 
 Wood's Estate, Re (i De G. & S. 465) . -303 
 
 Wood r. Wottd & White (14 P. D. 157 ■.. 58 L, J. P. 68 ; 61 I.. T. 338) . 398 
 
 Woodall, Re (3 C. B. 639) . . ■ 191 
 
 Woodcock, Re (i C. B. 347) • 191 
 
 Digitized by Microsoft® 
 
xxxvi TABLE OF CASES. 
 
 pagS 
 Woodcock's Case (i Leach, 500) ... ^'^ 
 
 Woodheadu. Woodhead ([1895], r. 343)- • ■ ' ''^8 
 
 Woodhouse v. Shepley (2 Atk. 535) . . • • "< S'i 
 
 Woodin, Be, Woodin v. Glass ([1895], 2 Ch. 309 ; 64 L. J. (Jh. 501 ; 72 L- i- 74°J 43 
 
 W.E.61S) 638,641,646 
 
 Woodley v. Metropolitan District Railway Co. (2 Ex. D. 384 ; 46 L- J- Ex. 521 ; 36 I.. 1. 
 
 860 
 
 419) ..•••• • 
 
 Woodman r. Chapman (i Camp. 189J . • • • • ' ^ 
 
 Woodmeston ti. Walker (2 Riiss. & Myl. 197J ... - 377 
 
 Woods 1: Woods (10 1'. T>. 172 ; 33 "^\'- ^- 323) 35 
 
 Woods V. Woods (2 Curt. 516) . • • • , ^' 
 
 Woodstock Union v. Shipston-on-Stour Union (62 L. .J M. C. 43 ; 68 L. T. 449 ; 57 J- !'• 
 
 167) • • • ^45 
 
 Woodward «. Dowse (31 L. J. C. P. 70 ; 9 W. E. 870 ; 3 Jur. N. S. 413 ; 10 C. B. 722) . 230 
 Woodward v. Woodward (8 L. T. 749 ; 11 W. E. 1007; 9 Jur. N. S. 882; 3 De G. J. & S. 
 
 672) ... . • 168, 248, 291, 295, 297, 299, 424 
 
 Woolf V. Pemberton (6 Ch. D. 19) 
 Woolscombe, Be (i Madd. 213) 
 Wormald, Be, Frank v. Muzeen (43 Ch, 
 W. E. 425) 
 
 810, 813 
 • 784 
 D. 630 ; 59 L. J. Ch. 404 ; 62 L. T. 423 ; 38 
 
 384 
 
 Worman, In the'Goods ol (29 L. J. P. JI. & A. 164; s Jnr. N. S. 687 ; i Sw. & Tr. 513} 
 
 232, 233, 354 
 Worrall I'. Jacob (3 Mer. 256) ... • 435.536 
 
 Worsley v. Worsley (L. E. i P. & D. 648 ; 38 L. J. P. M. & A. 48; 20 L. T. 541 ; 17 
 
 W. E. 743) ... .... • • 163. 447 
 
 Woitham v. Pemberton (i De G. & S. 644) .... ... 208 
 
 Worthington v. Curtis (i Ch. D. 419 ; 45 L. J. Ch. 259 ; 33 L. T. 828; 24 W. E. 228; . 534 
 Worthington !'. M'Craer (23 Beav. 81) ... ■ • 654 
 
 Wolterbeck i'. Barrow (23 Beav. 423 ; 3 Jur. N. S. 804)". . • 152 
 
 Wray v. West (15 L. T. 180) . .... . • . 7561 848 
 
 Wren v. Bradley (2 De G. & Sm. 49J . . ■ .11 
 
 Wren v. Kirton (11 Yes. 377) ... . ■ • 689, 695 
 
 Wright V. Chard (29 L. J. Ch. 415 ; i L. T. 138 ; 8 W. E. 35 ; 5 Jur. N. S. 476 ; 4 Dr. 
 
 673 ; I De G. F. & G. 567) . 285 
 
 Wright !•. Elwood (i Curt. 662) . . 91. 93 
 
 Wright V. Gihon (3 C. & P. 583) . 849 
 
 Wright V. Hunter (i L. J. K. B. O. S. 248) .... . .767 
 
 Wright V. Leonard (30 L. J. C. P. 365 ; 5 L. T. no ; 9 W. E. 944 ; 11 C. B. X. S. 258)' 269 
 Wright V. London and North-Western Eailway Co. ( i Q. B. D. 252 ; 45 L. J. Q. B. 570; 
 
 33 L. T. 830) . . ... 873 
 
 Wright r. Morley (11 Ves. 11) . . . ... 211 
 
 Wright V. Naylor (5 Madd. 77) . . . ... 630 
 
 Wright r. Eutter (2 Ves. 673) . . . .... . 212 
 
 Wright V. Vanderplank (27 L. T. O. S. 91 ; 4 W. E. 410 ; 8 De G. M. & G. 133) 535, 536, 539 
 Wright t). Wright (2 J. & H. 647) ... ... -377 
 
 Wright's Trusts, Be (25 L. J. Ch. 621 ; 2 Jur. N. S. 465 ; 2 K. & J. 595) . no, 456, 485 
 Wyatt V. Henry (2 Hag. Con. R. 215) . . .91 
 
 Wych V. Packington (3 Bro. P. C 44) . . . ... 700, 704 
 
 Wylde, Be (2 De G. M. & G. 724 ; 22 L. J. Ch. 724 ; 16 Jur. 1029) . . 187 
 
 WyUe, Be, Wylie r. MofEat ([1895] 2 Ch. 216; 64 L. J. Ch. 613 ; 43 W. E. 475) . 25T, 371 
 Wyndham v. Lord Ennismore (i Ke. 467) . ... . 506, 798 
 
 Wynn v. Davies (i Curt. 69) . . . . . 94 
 
 Yarmouth v. France (19 Q. B. D. 647 ; 57 L. J. Q. B. 7 : 36 W. 1!. 281) . 872 
 
 Yearwood's Trusts, Be (5 Ch. D. 545 ; 46 L. J. Ch. 478 ; 25 W. E. 461) . . . 478 
 
 Yeatman v. Yeatman (L. E. i P. & D. 489 ; 37 L. J. P. M. & A. 37 ; 18 L. T. 415 ; 16 
 
 W. E, 734) 170 
 
 Yelverton v. Long"Worth (4 Macq. H. L. Cas. 745 ; n L. T. ir8 ; 13 \V. E. 235 ; 10 Jur. 
 
 N. S. 1209) ... . 35. 456 
 
 Yelverton v. Yelverton (39 I>. J. P. M. & A. 34 ; i L. T. 194 ; 8 ^\■. E. 134 ; i Sw, & Tr. 
 
 574) .... .... 167, 472 
 
 Digitized by Microsoft® 
 
TABLE OF OASES. • Ixxxvii 
 
 / PAGE 
 
 Young V. Furse (26 L. J. Ch. 352 ; 29 L. T. O. S. 34 ; 3 .)ur. N. S. 603 ; 8 Do (j. M. & G. 
 
 756) .... 9 
 
 Young, Ex parte (26 L. T. 92) . . 493 
 
 Young, He, Trye v. Sullivan (28 Ch. D. 705 ; 54 1-. J. Oh. 1065 ; 52 J- T. 754 ; 33 W. li. 
 
 729) • • 2961 370 
 
 Youny f. Murphy (3 Scott, 379 ; 3 Biiig. X. (.'. 54) . 119 
 
 Young )). Smith (L. K, i Eq. 180 ; II Jxir. N. S. 963) . 133 
 
 Young V. Young (1. E. 5 Eq. 615) . . . 239 
 
 Young- V. Young (h. K. 13 Eq. 175 n) . . 667 
 
 Young's Settlement, ^e (18 Beiiv. 199) . 377 
 
 Younge v. Cocker (32 W. E. 3159) . . . . 731 
 
 Zambaco t'. Caesavetli (L. E. 11 Eq. 439; 24 L. T. 770) . 661 
 
 .Zouch r. Farsons (3 Burr. 1794) . 724. 727- 738, 739' 74° 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 PAGE 
 
 20 Hen. 3, c. 2 . . . 220, 221 
 
 c. 8 (Statute of Merton) 484, 568 
 
 52 Hen. 3, 0. 17 (Statute of Marl- 
 bridge .... 625, 701 
 
 3 Kd. I, c. 22 (Wardship) . . 630 
 
 13 Ed. I, c. 35 (Criminal Law, 
 Gflardian, Ward) . . . 630 
 
 7 Ed. 2, c. 9 (X>e Prerogativd 
 
 Regis) ..... 612 
 17 Ed. 2, c. 10 (Lands of Lunatics) 612 
 
 14 & 15 Hen. 8, c. 2 (Aliens) . 842 
 
 21 Hen. 8, c. 5 (Probate and Ad- 
 ministration) s. 3 . 
 
 25 Hen. 8, 0. 21 (Peter Pence and 
 
 Dispensations) s. 4 . 
 27 Hen. 8, c. 10 (Uses) s. 5 
 ss. 6-10 . 
 
 237 
 
 95 
 226 
 224 
 
 28 Hen. 8, i;. 7 (Succession to the 
 Crown) ... 79 
 
 32 Hen. 8, c. i (Wills) 529 
 
 c. 28 (Leases) . 194 
 
 ■ c. 37 (Rent), s. 3 . . 181 
 
 c. 38 (Precontracts) . 62, 79, 113 
 
 34 & 35 Hen. 8, c. 5 (Wills) 251, 252 
 
 s. 14 . . . . 368 
 
 2 & 3 Ed. 6, c. 23 (Repeal of 
 Statute of Precontracts) . . 18 
 
 4 & 5 Ph. & M. c. 8 (Abduction) 
 
 501, 587 
 
 5 Eliz. u. 4 (Apprentices) s. 25 . 842 
 13 Eliz. c. 5 (Fraudulent Deeds, 
 
 &<=.) . 130, 147, 154, 379 
 
 s. 2 162 
 
 18 Eliz. u. 3 (Poor Law) . . 575 
 27 Eliz. c. 4 (Covinous Conveyances) 
 
 147, 154. 1 59 
 ■ s- 5 .... 153 
 
 29 Eliz. 0. 5 (Statute Law Con- 
 tinuance) . . . .154 
 
 3o Eliz. c. 57 (Statute Law Con- 
 tinuance) .... 159' 
 43 Eliz. c. 2 (Poor Law)s. 6 516, 518, 560- 
 
 s. 7 . . . 256, S2I, 552 
 
 I Jac. I, c. II (Bigamy) . . 8i 
 
 21 Jac. i,i;. 1 6 (Limitation) 334,425,864. 
 12 Car. 2, u. 24 (Abolition of Feil- 
 
 dal Tenures) . 219, 492, 510, 587 
 
 s. 8 . 595, 598, 599, 610, 622, 715. 
 
 s. 9 596- 
 
 14 & 15 Car. 2, u. 19 (Abolition 
 
 of Feudal Tenures, Ireland) 600, 691 
 
 22 & 23 Car. 2, c. 10 (Statute of 
 Distributions) . 202, 232, 501, 534 
 
 s. 5 . . 237, 543 
 
 s. 6 . 238, 345 
 
 s. 7 554 
 
 29 Car. 2, c. 3 (Statute of Frauds) S33, 
 
 s. 4 . ' . . . . 143 
 
 s. 25 . . . . 232 
 
 30 Car. z, c. 7 Liability of E.\e- 
 cutors . ... 273. 
 
 I Jac. 2, c. 17 (Statute of Distri- 
 bution) s. 7 . . . . 543 
 
 6 & 7 Wm. & M. c. 6 (Marriage) 
 
 ss. 56, 57 .... 103. 
 
 7 & 8 Wm. 3, c. 25 (Election of 
 Members) s. 8 . . . . 714 
 
 10 Anne, c. 7 (Scotch Episcopalian 
 
 Marriages . 28, 37 
 
 s. 6 26- 
 
 9 Geo. I, c. 29 (Copyhold) . . 594 
 12 Geo. I, c. 3 (Penalties on Irish 
 Roman Catholic Priests) . . 56- 
 
 II Geo. 2, c. 10 (Irish Presbyterian 
 Mamages) .... 50- 
 
 26 Geo. 2, u. 33 (Lord Hardwioke's 
 
 Act) . . 9, 17, 19, 45, 103 
 ss. I, 6, II, 15, 17, 18, 28 20 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 Ixxxix 
 
 26 Geo. 2, c. 33 (Lord Hardwicke's 
 
 Act) s. 8 19, 20 
 
 B. 13 . . . 19, 113 
 
 12 Geo. 3, 0. II (Eoyal Marriage) 460 
 SB. 1-2 ... 
 
 14 Geo. 3, u. 48 (InBuranoe, Life) 
 s. 3 . 
 
 15 Geo. 3, t. 30 (Marriage 
 Lnoatics) 
 
 32 Geo. 3, c. 56 (Criminal Law, 
 Master aud Servant) as. i, 6 
 
 32 Geo. 3, 0. 57 (Parish Appren 
 tices) s. 2 . 
 
 s. 13 
 
 33 Geo. 3, 0. 21 (Catholic Emanci 
 cipatioD, Ireland) 
 12, 13 
 
 84 
 321 
 
 534 
 
 77 
 
 858 
 
 844 
 
 844 
 844 
 
 599 
 56 
 
 36 Geo. 3, 0. 52 (Legacy Duty) 
 
 s. 32 . . . . 692, 782 
 
 38 Geo. 3, c. 87 (Administration 
 
 of Estates), s. 6 . . . 602, 714 
 
 41 Geo. 3, u. 109 (Inclosure) 
 SB. 18, 30 
 
 42 Geo. 3, c. 46 (Apprentice) 
 42 Geo. 3, c. 1 16 (Land Tax) s. 14 
 
 ■ BS. 53, 128, 166 
 
 43 G«o. 3, 0. 108 (Mortmain) 
 
 44 Geo. 3, u. 43 (Clergy) . 
 
 51 Geo. 3, 0. 37 (Mamage of 
 Lunatics) .... 
 
 55 Geo. 3, i;. 139 (Apprentice 
 Settlement) 
 
 BS. 7, 9 . . . . 
 
 58 Geo. 3, c. 81 (Matrimonial 
 Contracts) s. 3 
 
 3 Geo. 4, c. 75 Marriage) 
 
 4 Geo. 4, c. 76 (Marriage) 
 
 s. 2 . 
 
 s. 3 . 
 
 8. 7 . 
 
 s. 8 . 
 
 s. 9 . 
 
 — BS. 10, 1 1 
 
 s. 14 
 
 B. 16 
 
 B. 17 
 
 ss. 18, 20 
 
 B. 19 
 
 S. 22 
 
 s. 23 
 
 ■ — - — • s. 24 
 
 s. 25 
 
 • ss. 30, 31 
 
 68s 
 755 
 685 
 686 
 370 
 714 
 
 77 
 
 755 
 844 
 
 45 
 21 
 
 • 9, 103 
 
 93 
 
 93 
 
 94 
 
 21, 88, 94, 95 
 
 ■21,95 
 96 
 
 ■ 96 
 
 8, 501, 610 
 
 21, 88, 784 
 
 95 
 
 . 96 
 
 22,91.93.96,98 
 
 21, 23, 75, 89 
 
 90 
 
 . . 89 
 
 22 
 
 21 
 
 0. 91 (Validation of Mar- 
 riages) .... 108, 461 
 
 5 Geo. 4. c. 83 (Punishment of 
 Rogues, &o.) ss. 3, 4 . . 255. 
 
 6 Geo. 4, 17. 50 (Jury) s. i . . 714 
 
 9 Geo. 4, 0. 14 (Lord Tenterden's 
 Act), s. 5 ... 736, 761 
 
 c. 31 (Offences against the 
 
 Person) 589 
 
 10 Geo. 4, c. 7 (Catholic Eman- 
 cipation) 599 
 
 11 Geo. 4, & I Wm. 4, c. 47 (Debt, 
 Infant) 740 
 
 s. 10 . . 730 
 
 s. 1 1 . . . . 666 
 
 II Geo. 4, & I Wm. 4, c. 65 (Copy- 
 holds, Infant) ss. 3-6 . 250, 594 
 
 SB. 7-9 . 
 
 SB. 12, 16, 17 . 
 
 0. 68 (Carriers) s. 8 
 
 I & 2 Wm. 4, c. 37 (Ti-uck) 
 
 3 & 4 Wm. 4, c. 77 (Real Pro 
 
 party Limitation) s. 2 
 8. 36 
 
 B. 41 
 
 595 
 672 
 822 
 864 
 
 227 
 627 
 222 
 
 755 
 
 82,201 
 
 189 
 
 193, 293, 373 
 
 • 293 
 189, 293 
 
 • 293 
 
 191,213, 325 
 
 227 
 220, 227 
 
 227 
 . 228 
 
 229 
 219, 229 
 
 229 
 
 c. 63 (Apprentice) 
 
 c. 74 (Fines and Recoveries) 
 
 s. 40 
 
 s. 77 . 18 
 
 s. 78 
 
 s- 79 
 
 s. 80 
 
 s. 91 
 
 c. 105 (Dower) s. i 
 
 s. 2 . 
 
 ss. 3, 4 
 
 SB. 5-9 . 
 
 ss. 10-12 . 
 
 8. 13 
 
 s. 14 
 
 c. 102 (Repeal of Penalties in 
 
 Ireland) 56 
 
 c. io6 (Inheritance) s. 6 . 530 
 
 4 & 5 Wm. 4, c. 28 (Scotch Roman 
 
 Catholic Marriages) . . .28, 37 
 
 c. 76 (Poor Law) s. 15 . . 844 
 
 8. 56 . . 516,518,552. 
 
 s. 57 . 517, 518, 532. 578 
 
 s. 71 . . 572,578 
 
 B. 72 . . . . 576 
 
 5&6Wm.4,c. 54(Marriages within 
 
 the Prohibited Degrees) ss. 1,2, 3 78 
 6 & 7 Wm. 4, i>. 71 (Tithe Com- 
 mutation) s. 15 . . . 685 
 
 c. 85 (Marriage) 5, 22, 94, 97, 99 
 
 B. I 95 
 
 B. 2 . . . . 103, 104 
 
 s. 4 . • . . 22, 99 
 
 Digitized by Microsoft® 
 
xc 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 22 
 
 100 
 
 lOO 
 
 23 
 
 22 
 
 23, 102, 103 
 
 23, 102 
 
 93,94 
 
 101 
 
 22 
 
 loi, 102 
 
 23,89 
 
 820 
 
 97, loi 
 
 93 
 
 221 
 
 596, 665, 714 
 
 251, 368 
 
 241, 242 
 
 251, 370, 371 
 217,554 
 
 2 & 3 Vict. c. 54 (Infants' Custody) 506 
 c. 60 (Debt) . . 666, 740 
 
 6 & 7 Wm. 4, c. 85 (Marriage) s. 7 
 
 ss. 9, 10 . 
 
 ss. II, 13. 
 
 s. 16 
 
 s. 18 
 
 e. 20 
 
 s. 21 
 
 s. 26 
 
 s. 38 
 
 s. 39 
 
 s. 42 
 
 s. 43 
 
 c. 86 (Registration) s. 38 
 
 I Vict. c. 22 (Marriage) 
 
 s. 33 
 
 c. 26 (Wills) s. 3 . 
 
 ■ s. 7. 
 
 s. 8 . 
 
 s. 18 
 
 s. 24 
 
 8. 33 
 
 3 & 4 Vict. 0. 72 (Marriage) s. 2 . 
 
 s- 5 
 
 c. 90 (Criminal Law, Infant) 
 
 ss. I, 2, 4 
 
 93 
 104 
 
 ■613 
 686 
 
 4 & 5 Vict. c. 38 (School Sites) . 
 
 5 Vict. u. 28 (Repeal of Death Pen- 
 alties on Irish Roman 'Catholic 
 Clergy) ... -56 
 
 5 & 6 Vict. c. 35 (Revenue) s. 45 400 
 ■ 0. 113 (Confirmation of Mar- 
 riages, Ireland) . . .50, 55 
 
 6 & 7 Vict. u. 37 (Populous Par- 
 ishes) 50 
 
 7 & 8 Vict. c. 44 (Court of Teinds) 26 
 0. 81 (Marriage, Ireland) 45, 46, 53, 55 
 
 46,47 
 46 
 
 SO, 55 
 51 
 
 46, 51 
 51 
 46 
 
 56 
 46 
 
 56 
 
 52 
 
 54 
 
 46 
 
 52 
 
 580 
 
 576 
 
 755, 844 
 
 s. I 
 
 s. 3 . 
 
 s. 4. 
 
 'SS. 5-7 
 
 s. 8 . 
 
 6. 10 
 
 S. 12 
 
 6. 13 
 
 s. 15 
 
 s. 16 
 
 B. 22 
 
 8. 30 
 
 s. 45 
 
 S. 64 . 
 
 - c. loi (Poor Law) b. 4 . 
 s. 5 . 
 
 ■ BS. 12, 13 
 
 8 & 9 Vict. 0. 18 (Lands Clauses) 782 
 
 8 & 9 Vict. c. 
 
 ss. 7, 8 . 
 s. 17 
 
 H. 69 
 
 18 (Lands Clauses) 
 
 686 
 
 731 
 681, 686 
 
 ss. 71, 72 
 
 c. 56 (Drainage, &c. of Land) 
 
 c. 112 (Satisfied Terms) 
 
 c. 1 18 (Inclosure) s. 20 . 
 
 9 & 10 Vict. c. 66 (Removals) s. 2 
 c. 72 (Marriage, Ireland) ss, 
 
 1,2 .... 
 0. 73 (Tithe Commutation) 
 
 o. I 
 
 ■ c. 93 (Lord Campbell's) 
 
 s. I . 
 
 s. 2 . 
 
 >■ 3- 
 Vict. 
 
 10 & II Vict. c. 58 (Quaker and 
 
 Jewish Marriages) . 
 c. 96 (Trustees' Relief) 
 
 s. 2 . 
 
 686 
 684 
 224 
 685 
 175 
 
 48 
 
 685 
 874 
 171 
 71, 564 
 563 
 
 52 
 782 
 
 152 
 686 
 
 12 & 13 Vict. c. 49 (School Sites), 
 0. 68 (Consular Marriages) 108, 461 
 
 13 & 14 Vict. u. 60 (Trustees' RC' 
 lief) s. 2 604 
 
 ss. 7, 8 . . . . 729 
 
 s. 30 . . . 667, 731 
 
 14 & 15 Vict. c. II (Apprentice) 755, 867 
 
 c. 24 (School Sites) . . 686 
 
 c. 40 (Marriages in India) . Ill 
 
 15 & 16 Vict. c. 49 (School Sites) 686 
 
 c. 55 (Trustees' Relief) s. 3 604, 729 
 
 C.76 (Common LawProcedure) 
 
 E. 40 420 
 
 0. 86 (Chancery Procedure) s. 
 
 48 666 
 
 s. 52 . . . . 818 
 
 s- 55 • • • 666, 729 
 
 16 & 17 Vict. c. 83 (Evidence 
 
 Amendment) ss. I, 2 
 
 s. 3 . 
 
 c. 96 (Lunatics) s. 9 . 
 
 CI 37 (Chai-itable Trusts) 
 
 17 & 18 Vict. c. 80 (Marriage Re 
 gistration, Scotland) s. 46 
 
 s. 47 
 
 ss. 48, 49 
 
 s. 58 . 
 
 .s. 76. ' . . 
 
 0. 112 (Commons) ss. i, 33 
 
 c. 117 (Merchant Shipping) 
 
 B. 282 .... 
 
 18 & 19 Vict. e. 43 (Infants' Set 
 tlement) ss. 1-4 
 
 19 & 20 Vict. u. 64 (Statute Law 
 Revision) .... 
 
 245 
 244 
 
 517 
 687 
 
 29, 39 
 
 39 
 
 39,40 
 
 41 
 
 39 
 
 687 
 
 no 
 
 777 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 19 & 20 Vict. 0. 96 (Marriage, 
 Scotland) . . . • 31, 38 
 
 s. 2 . . . . . 40 
 
 s. 3 . . . . 31, 38, 40 
 
 c. 119 (Registration of Mar- 
 riages) ..... 99 
 
 s. 2 . . . . 99, lOI 
 
 s. 4 . . .22, 100, 101 
 
 s. 5 . . . 100, loi 
 
 ss. 6, 7 . . . . loi 
 
 s. 9 . . 22, 100, loi 
 
 B. II . . .22, 97, 102 
 
 s. 12 . 54, 102, 103 
 
 • s. 19 . . . . 89 
 
 s. 21 . . . 103, 104 
 
 c. 120 (Settled Estates) . 672 
 
 20 & 21 Vict. c. 57 (Malins') 201, 204, 212 
 
 c. 85 (Divorce) s. 6 . . 63 
 
 ss. 7, 16 . . . . 447 
 
 s. 17 . . 165, 441 
 
 ■ s. 21 282, 317, 331, 335, 3SI, 
 
 352, 369, 423, 828 
 • s. 25 183, 233, 281, 317, 331 
 
 334> 3SI, 3S2, 370. 423> 828 
 
 8. 26 281, 317, 331, 351, 423 
 
 s. 27 423, 447 
 
 »■ 33 • • • ■ 171 
 
 s. 35 . 164, 494, 512, 513 
 
 s- 45 • • 163, 164, 447 
 
 e. 59 ... 170 
 
 21 & 22 Vict. v;. 93 (Legitimacy 
 Declaration) .... 87 
 
 ss. I, 6, 7, 8 . . 488 
 
 c. 108 (Divorfie) ... 58 
 
 s. 6 183,282,317,331,350,369 
 
 423 
 
 s. 7 183, 325, 331, 352, 369, 423 
 
 8. 8 183, 331, 352, 369. 423 
 
 8- 9 • • • 183, 331, 369 
 
 s. 10 . 183, 331, 352, 369 
 
 22 & 23 Vict. c. 35 (Trustees' Re- 
 lief) s. 10 226 
 
 . s. 32 . . . . 690 
 
 0. 61 (Divorce Amendment) 
 
 »■ 4 ■ ■ 349. 4SI. 513. 514. 520 
 8. 5 . .163, 165, 388, 520 
 
 23 & 24 Vict. c. 18 (Quaker iVIar- 
 riages) s. i . . . 52, 104 
 
 c. 83 (Infants' Settlement 
 
 [Ireland]) .... 777 
 c. 85 (Registration, Scotland) 
 
 8. IS 39 
 
 c. 126 (Common Law Pro- 
 cedure) s. 26 . . . . 222 
 
 c. 144 (Divorce Amendment) 
 
 ». 5 163, 164 
 
 23 & 24 Vict. c. 144 (Divorce 
 Amendment) s. 6 . . . 163 
 
 c. 14S (Lord Cranworth) s. 26 643 
 
 24 & 25 Vict. c. 55 (Poor Law) 
 
 s. 3. . . . . .175 
 
 ■ c. 86 (Conjugal Rights, Scot- 
 land) s. II . . . . 41 
 
 c. 96 (Larceny) s. 67 . . 898 
 
 8. 68 . . . 822, 896 
 
 s. 100 (Offences against the 
 
 Person) s. 26 . . . 867 
 
 s. 54 . . . . 73 
 
 s. 55 . . . 501, 589 
 
 s. 56 .... 574 
 
 8. 57 ... 81 
 
 25 & 26 Vict. c. 89 (Companies) 
 
 ss. 75, 78 .... 262 
 
 26 Vict. 0. 27 (Marriages, Ireland) 53 
 
 8. 2 . . . .46, 52, 54 
 
 ss. 3, 4, 5 . . 54, 56 
 
 s. 7 52 
 
 s. 8 . . . .46, 52, 54 
 
 26 & 27 Vict. c. 90 (Marriage Reg- 
 istration, Ireland) . . 48 
 
 s. II _ . . . . 49, 50 
 
 c. 103 (Criminal Law, Master 
 
 and Servant) .... 896 
 
 27 & 28 Vict. c. 95 (Lord Camp- 
 bell's Act Amendment) s. i . 563 
 
 c. 114 (Improvement of Lands) 610 
 
 28 & 29 Vict. u. 64 (Colonial Mar- 
 riages) . . . .111 
 
 c. 86 (Partnership) p. 5 . 298 
 
 29 & 30 Vict. c. 117 (Reformatory 
 Schools) 8. 14 . . . . 717 
 
 c. 118 (Industrial Schools) s. 14 803 
 
 s. 18 ... . 716 
 
 30 & 31 Vict. c. 105 (Councils of 
 Conciliation) s. 17 . . . 816 
 
 c. 133 (Consecration of 
 
 Churchyards) .... 686 
 
 c. 141 (Master and Servant) 756, 828 
 
 c. 142 (County Courts) s. 5 . 866 
 
 31 & 32 Vict. c. 40 (Partition) s. 3 666 
 c. 47 (Consecration of Church- 
 yards) . . . . 686 
 
 c. 121 (Pharmacy) s. 17 . S89 
 
 c. 122 (Poor Law) s. 33 255, 256 
 
 s- 37 . • • • 552 
 
 32 & 33 Vict. c. 62 (Debtors) s. 5 33'!, 
 
 335. 432, 433 
 
 ss. 11-13. • 319, 737 
 
 c. 68 (Evidence Amendment) 567 
 
 s. 2 . . . .115 
 
 ". 3 • • • 245, 246, 478 
 
 s. 4- • 718 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 32 & 33 Vict. c. 71 (Bankruptcy) 
 
 s. 91 . . . . 160, 161 
 
 33 & 34 Viot. c. 14 (Naturalization) 
 
 s. 10 . . . . 167, 486 
 
 0.56 (Limited Owners'Residences) 610 
 
 u. 75 (Elementary Education) 
 
 s. 3 . ^ . . . 521. 634 
 
 0. 93 (Married Women's Pro- 
 perty) s. I 202, 317, 3SS, 370. 828 
 • 3SS 
 
 BS. 2, 3 
 
 — ss. 4, 5 
 
 — s. 6. 
 
 — e. 7 . 
 
 -». 9. 
 
 - s. 10 
 
 - B. II 
 -S. 12 
 
 -s. 13 
 
 - s. 14 
 
 265, 324, 355 
 
 • 355 
 197. 355 
 186, 355 
 
 • 396 
 185, 282, 321, 355 
 33i> 355. 423, 828 
 
 259, 263, 268, 331, 355, 
 
 356, 380 
 
 • 256,356 
 
 257, 517, 650 
 
 c. 1 10 (Matrimonial Causes and 
 
 Marriage Law, Ireland) 46, 48, 53, 57, 58 
 
 s. 7 . -59 
 
 8. 35 . . 47 
 
 s. 36 . . . 47, 95 
 
 B. 37 . . 51, S3, 95 
 
 s. 38 . 48, 56, 57 
 
 s. 39 . . 57 
 
 8. 40 . 56 
 
 8. 41 . . . . 54 
 
 34 & 35 Vict. c. 49 (Marriage Law, 
 Ireland, Amendment) 46, 48, 51, 57 
 
 8. 21 . . . . 53 
 
 8. 22 . 47, 48, 52 
 
 8. 25 . . 
 
 8. 26 
 
 s. 27 . . 
 
 8. 28 
 
 35 Viot. u. 10 (Marriage, Society 
 
 of Friends) 
 s. I . 
 
 49 
 
 57 
 
 49, 57 
 
 52 
 
 46 
 52, 104 
 
 35 & 36 Vict. c. 38 (Protection of 
 Infant Life) .... 803 
 
 c. 65 (Bastardy Law Amend- 
 ment) s. 3 . • • 579 
 
 8. 4 • ■ . 576, 580 
 
 s. 5 . . . 576, 580 
 
 c. 94 (Licensing) . . . 889 
 
 36 Viot. c. 16 (Marriage Registra- 
 tion, Ireland) . . . . 53 
 
 36 & 37 Vict. c. 9 (Bastards) s. 5 576 
 
 c. 12 (Infants' Custody) 494, 507 
 
 s. I . . . . 497, 507 
 
 =■ 2 . . 445, 493, 508, 524 
 
 c. 31 (Matrimonial Causes) s. i 66 
 
 36 & 37 Vict. c. 50 (Places of Wor- 
 ship, Sites) . . 610 
 
 c. 66 (Judicature) s. 16 498, 502 
 
 ^. 18, 8ub-8. 5 . . 612 
 
 6. 24, sub-B. 5 . . -439 
 
 e. 25, sub-s. 3 . . . 683 
 
 — sub-s. 7 . . 834 
 
 sub-s. 8 . . 693 
 
 8ub-s. 10 498, 502 
 
 sub-s. II . 209 
 
 s. 34, sub-s. 3 . . 698, 781 
 
 s. 76 . . . . 189 
 
 37 & 38 Vict. c. 50 (Married 
 Women's Property) s. i . 259, 356 
 
 s. 2 . 259, 268, 271, 273, 356 
 
 s- 3 356 
 
 8. 4 . . . 260, 271, 356 
 
 8. 5 . . 260, 262, 268, 273 
 
 c. 57 (Limitation) ss. 1, 3 . 807 
 
 c. 62 (Infants' Relief) s. i . 726, 
 
 734, 738, 744, 752, 756, 761 
 
 s. 2 735,737, 740, 756, 760, 762,- 
 
 765 
 
 - c. 78 (Vendors and Purchasers) 
 
 — s. 6 
 
 38 & 39 Vict. c. 60 (Friendly So- 
 cieties) s. 5 . 
 
 a. 15 
 
 c. 63 (Sale of Food and Drugs) 
 
 s. 21 
 
 610 
 365 
 
 755 
 744 
 
 24S 
 
 761 
 298 
 
 c. 66 (Statute Law.Revision) 
 
 c. 77 (Judicature) s. 10 
 
 c. 86 (Conspiracy and Protec- 
 tion of Property) . 756,842 
 . 847, 867 
 . 867 
 and Work- 
 
 842, 850 
 ■ . 847 
 850, 866 
 (Partition 
 
 667 
 . 728 
 
 8. 6 . 
 
 s. II 
 
 c. 90 (Employers 
 
 men) ss. 5, 7 
 
 s. 6 (2) 
 
 s. 10 
 
 39 & 40 Vict. c. 17 
 
 Amendment) s. 6 
 
 c. 36 (Customs) 
 
 0. 61 (Divided Parishes) a. 34 486 
 
 s. 35 . . . 175,572,579 
 
 c. 79 (Education Amendment) 
 
 s- 4 521, 634 
 
 ss. 5, 48 . . . . 522 
 
 40 & 41 Vict. c. iS (Settled Es- 
 tates) S. :i . . . . 672 
 
 83. 4, 5 . . 674 
 
 ss. 10, 12, 13 . . 674 
 
 s. 16 . 667 
 
 B. 20 . . , 668 
 
 ss., 34-36 . . 671 
 
 ■8- 37 
 
 669, 67a 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 XCUl 
 
 40&41 Vict. 0. 18 (Settled Estates) 
 
 se. 46, 47 .... 182 
 
 -s. 49 . . .611 
 
 s. 50 . . 192, 195 
 
 s. 52 . . . 194 
 
 41 Vict. c. 16 (Factory and Wovk- 
 
 ehops) B. 9 . . . 805 
 
 SB. 11-17 . . 80S 
 
 s. 107 .... 522 
 
 c. 19 (Matrimonial Causes) 
 
 s. 3 . . . . 163, 352, 447 
 
 s. 4. 282,317,331,353,448 
 
 494. SI 5. ^28 
 41 &42 Vict. c. 31 (Bills of Sale) s. 4 162 
 - c. 43 (Marriage Notice, Scot- 
 
 land) 
 
 ■ ss. 4, 5 
 -s. 6 . 
 
 - BB. 7-9 
 
 - S. H 
 
 - B. 12 
 
 u. 33 (Ai-my Disoi- 
 
 25, 29, 48 
 
 27 
 
 • 28. 37 
 
 28 
 
 28, 37 
 
 37,38 
 
 42 & 43 Vict, 
 pline) s. 92 
 
 c. 34 (Dangerous Perform- 
 ances) s. 3 
 
 c. 49 (Summary Jurisdiction) 
 
 o. 10, sub-s. I . 
 
 e. II, sub-s. I . 716, 717 
 
 43 & 44 Vict. u. 15 (Industrial 
 
 757 
 804 
 716 
 
 Schools) s. I 
 
 li. 42 (Employers' Liability) 
 
 ss. I, 8 
 
 44 & 45 Vict. c. 12 (Customs and 
 
 Inland Ee venue) s. 38 
 — — c. 24 (Summary Jurisdiction, 
 
 Process) s. 6 . 
 c. 41 (Conveyancing and Law 
 
 of Property) s. 31 
 
 s. 39 
 
 fi. 40 
 
 8. 41 
 
 8. 42 
 
 Bub-a. 2 
 
 . — , sub-a. 5 
 
 803 
 869 
 148 
 580 
 
 -8-43 
 
 - K. 50 
 
 - a. 52 
 
 - a. 69, Bub-s. 3 
 
 • 714 
 
 ■ - 38s 
 
 331, 388, 725 
 
 674, 676 
 
 690 
 
 683 
 
 726 
 
 644 
 
 292 
 
 374, 547 
 
 388, 671 
 
 244 
 
 c. 58 (Army) a. 156 
 
 45 & 46 Vict. c. 38 (Settled Land) 
 
 B. 3 . . . . 667, 668, 681 
 a. 6 . . 673, 674 
 
 S8. 7, 12 . . 674 
 
 - S. 21 
 
 -a. 23 
 
 - s. 25 
 
 ■ sub-ss. I, 3 
 
 681 
 671 
 681 
 
 684 
 
 PAGE 
 
 4S&46Vict.o.38(SettledLand)a.32 192 
 
 s. 35 .... 683 
 
 ss. 40-42 . . . 678, 679 . 
 
 -a., 43 .... 700 
 
 s. 44 . . 681 
 
 s. 45 . . . 667 
 
 a. 46, aub-B. 3 .671 
 
 s. 59 . . 668, 670, 674 
 
 a. 60 . . 668, 674, 681 
 
 s. 61 . . . 183, 195 
 
 0. 39 (Conveyancing) s. 7 . 189, 
 
 190, 249, 293, 365, 373 
 
 c. 43 (Bills of Sale) aa. 8, 15 162 
 
 c. 50 (Municipal Corporations) 
 
 SB. 9-1 1, 14, 15 . . . 714 
 
 c. 57 (County Court) a. 4 . 856 
 
 c. 61 (Bills of Exchange) s. 23 284,302 
 
 c. 75 (Married "Women's Pro- 
 perty) .... 409-417 
 
 . S. I, Bub-B. I ,122, 124, 184, 186 
 
 249, 250, 294, 326, 327, 344, 
 
 349. 357, 366, 368, 370 
 
 sub-s. 2 . 173, 198, 203, 
 
 206, 250, 270, 273, 276, 283, 291, 325, 
 329, 332, 334, 335, 358, 382, 402, 420, 
 423, 426, 429 
 
 eub-B. 3 . 279, 283, 286 
 
 28S, 290, 301, 302, 358, 382, 425 
 
 ■ sub-s. 4 276, 283, 286, 358 
 
 sub-s. 5 . 161, 250, 291, 
 
 300, 319, 320, 335, 358, 482 
 
 s. 2. 137, 184, 186, 197, 203, 
 
 250, 317, 327, 349, 357, 366, 368 
 
 B. 3 . . 194, 297, 298, 358 
 
 s. 5 . 136, 184, 186, 193, 197, 198, 
 
 202, 203, 250, 285, 327, 349, 357, 
 
 366, 368, 370 
 
 =. 6 . 206, 294, 29s, 324, 326, 358, 
 
 425 
 
 • s. 7 . 206, 262, 266, 294, 29s, 324, 
 
 326, 358, 425 
 
 a. 8 . 206, 324, 326, 358 
 
 206, 326, 358 
 
 207, 295, 297, 358 
 
 321, 323, 358 
 
 174, 244, 246, 248, 324, 
 
 359, 400, 403, 425 
 
 260, 261, 263, 264, 266, 
 
 271, 359, 429 
 196, 259, 260, 262, 265, 
 
 -s. 9. 
 
 - s. 10 
 
 - 8. II 
 
 - 8. 12 
 
 - B. IT, 
 
 - s. 14 
 
 268, 271, 274, 275, 359, 427, 428 
 261, 266, 267, 268, 271, 
 
 335, 337, 359, 427, 429 
 
 244, 246, 359, 403 
 
 207, 236, 359, 396, 425 
 
 250, 265, 325, 327, 329, 
 
 358, 420, 424, 427 
 
 -s. 15 
 
 ■ D. 16 
 
 - s. 17 
 • s. 18 
 
 Digitized by Microsoft® 
 
TABLE OF STATUTES CITED. 
 
 PAGE 
 
 45 & 46 Vict. c. 75, 8. 19 • 122, 136, 
 
 137, 141, 158, 159, 161, 249, 265, 320, 
 335. 359. 377, 378, 382, 429, 774, 792 
 
 s. 20 257, 359, 391. 392, 518 
 
 ». 21 164, 257, 359. 421, 518 
 
 532, 578, 650 
 
 s. 22 . . • 203 
 
 s. 23 . . . 236, 359 
 
 - s. 24 198, 206, 260, 265, 274, 275 
 
 276, 283, 325, 327, 329, 332, 334, 625 
 s. 25 . . . . 360 
 
 244 
 
 ■> 
 
 46 & 47 Vict. 0. 3 (Explosive Sub- 
 stances) s. 4 . 
 
 c. 47 (Provident Nominations) 
 
 s. 8 573 
 
 c. 52 (Bankruptcy) s. 4 335, 433 
 
 • 763 
 864 
 . 849 
 320 
 13I1 139, 161, 162, 295, 
 319 
 
 8ut-8. 2 . . . 162 
 
 c. 61 (Agricultural Holdings) 
 
 s. 25 . . . 684 
 
 «. 26 . . . . J95 
 
 47 & 48 Vict. u. 14 (Married 
 Women's Property Act, 1882, 
 Amendment) s. i . , 244, 403 
 
 c. 18 (Settled Land Act, 
 
 Amendment) s. 4 . 
 
 »• 5 
 
 676 
 667 
 — — s. 8 . ' . . . . 217 
 
 c. 68 (Matrimonial Causes 
 
 Act Amendment) . . . 169 
 168,388, 451 
 
 -s. 6. 
 
 _ . _ . .452 
 48 Vict. c. 15 (Eegistration) . 714 
 48 & 49 Vict. c. 69 (Criminal Law- 
 Amendment) s. 4 75, 169, 717, 804 
 «. 5 • • ■ 75, 804 
 
 -s. 6. 
 -s. 7. 
 
 - s. 10 
 
 - 8. 12 
 
 -s. 13 
 
 - s. 20 
 
 559, 589, 804 
 
 . 804 
 
 510, 618, 634, 863 
 
 245 
 95 
 
 49 & 50 Vict. c. 3 (Marriages 
 
 Validity) s. i . 
 49 & 50 Vict. c. 14 (Marriage) s. i 98 
 49 & 50 Vict. c. 27 (Guardianship 
 
 of Infants) s. i . . . 500 
 
 s. 2 494, 500, 510, 525, 588, 
 
 603, 615, 625, 629, 630, 786 
 
 s. 3 500, 510, 597 600, 606, 615, 
 
 616, 630, 635, 715 
 
 49 & 50 Vict. 0. 27 (Guardianship 
 
 of Infants) s. 4 . 500, 600, 603 
 
 •s. 5, 
 •s. 6. 
 
 500, 511, 600- 
 • 605^, 
 619, 620, 625, 626, 786 
 
 8-7 S14- 
 
 s. 8 494 
 
 8. 12 . . . . 510- 
 
 s. 13 60s, 619, 620, 625, 626, 786 
 
 c. 48 (Medical) a. 6 . . 862 
 
 c. 52 (Maintenance in case 
 
 of Desertion) . . 255,352,448- 
 0. 56 (Intoxicating Liquors 
 
 (Sale to Children) s. i . 
 50 & 51 Vict. c. 30 (Settled Land 
 
 Acts Amendment) . 
 50 & 51 Vict. 0. 58 (Coal Mines 
 
 Eegnlation).s. 3 . . . 
 
 s. 4 
 
 s. 5 
 
 s. 7 
 
 804 
 
 681 
 
 805 
 804. 
 
 . 805 
 
 51 & 52 Vict. u. 28 (Marriages' 
 Validation) .... 98 
 
 0. 43 (County Court) s. 96 . 830 
 
 8. 184 . . ,. . i89' 
 
 c. 59 (Trustee) s. 8 . 387, 703 
 
 52 & 53 Vict. li. 7 (Customs and 
 Inland Revenue) s. 1 1 . . 148' 
 
 0. 32 (Trust Investment) . 663 
 
 c. 36 (Settled Land) s. 2 . 676 
 
 =■3 676 
 
 c. 56 (Poor Law) 3. 1 . . 511 
 
 ^8.4 511 
 
 53 Vict. u. 5 (Lunatics) s. 341 . 612 
 53 & 54 Vict. u. 29 (Intestates' 
 
 Estates) 
 
 — ss . 2-6 . 
 
 • c. 39 (Partnership) s. 2 
 
 — 8. 3 . 
 
 ■ 0. 69 (Settled Land) s. 5 
 
 — ss. 7, 8, 9 
 
 8. 10 
 
 S. 1 1 
 
 S. 12 
 
 c. 69 (Settled Land) s. 15 
 
 54Vict. u. 3 (Custody of Children) 8. 
 s. 2 
 
 234 
 239 
 239 
 298 
 298; 
 669 
 
 675. 
 668, 675 
 680, 
 
 ■s. 4 
 a- 5 
 
 675 
 68 1 
 5" 
 5" 
 
 512 
 
 512, 525, 527 
 511 
 
 54 & 55 Vict. c. 23 (Reformatory 
 
 and Industrial Schools) s. I 756, 844 • 
 
 0. 39 (Stamp) . . .834 
 
 s. 25 . . . . 845. 
 
 c. 51 (Slander ofWomen) . 173, 
 
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TABLE OF STATUTES CITED. 
 
 54 & 55 Viot. c. 56 (Elementary 
 Education) . . . ,521 
 
 c. 69 (Penal Servitude) s. i . 898 
 
 c. 74 (Foreign Marriage) 108, 109 
 
 c. 75 (Factory and Workshop) 
 
 s. 18 . . . . 522, 805 
 
 55 Vict. c. 4 (Betting Loans (In- 
 fants)) 8. I . . . . 806 
 
 806 
 
 736, 763, 806 
 
 245 
 
 s. 5 
 
 s. 6 
 
 55 & 56 Vict. c. 
 riage) s. i 
 
 2 
 
 3 
 
 5 
 
 6 
 
 7 
 
 23 (Foreign Mar- 
 
 II 
 12 
 14 
 15 
 18 
 
 19 
 
 21 
 22 
 24 
 
 c. 39 (National Debt) e. 3 
 
 c. 62 (Shop Hours) s. 3 
 
 s. 9. 
 
 55 & 57 Vict. c. 53 (Trustee) 
 
 s. 10 . 
 
 s. IS 
 
 108, 
 
 109 
 109 
 109 
 109 
 109 
 109 
 108 
 108 
 109 
 109 
 109 
 no 
 
 108 
 108 
 
 no 
 
 loS 
 807 
 805 
 S05 
 689 
 670, 671 
 . 326 
 
 •s. 45 
 
 272, 385, 387 
 
 PAGE 
 
 56 & 57 Vict. v;. 63 (Married 
 
 Women's Property) . 242, 417, 418 
 
 s. I 289, 290, 301, 320, 336, 
 
 363, 380, 391, 394, 396, 421, 425, 
 
 43O1431, 519 
 s. 2 333, 363, 381, 392, 426, 
 
 430. 432 
 
 s-3- ■ ■ 251,363,371 
 
 363 
 844 
 
 175 
 400 
 
 s. 4 
 
 c. 73 (Local Government) . 
 
 s. 43 
 
 57 & 58 Vict. u. 38 (Finance) s. 34 
 
 c. 41 (Prevention of Cruelty 
 
 to Children) s. i 
 
 8. 2. 
 
 s. 3. 
 
 s. 6. 
 
 '■ a. 12 
 
 -s. IS 
 
 c. 46 (Copyhold) s. 45 
 
 s. 46 
 
 58 & 59 Vict. c. 39 (Summary 
 Jurisdiction (Married Women)) 
 
 245. 633 
 
 804, 805 
 
 80s 
 
 633, 805 
 
 • 245 
 
 • 717 
 S9S, 687 
 
 250 
 
 ■s. 4 
 
 ■s. 5 
 . s. 6. 
 -s. 7. 
 -s. 8. 
 -s. 9. 
 
 - s. 10 
 
 ■ S. II 
 
 - S. 12 
 
 . 451 
 
 • 451 
 
 2SS> 282, 331, 352, 353, 
 
 448, 449, 515, 828 
 
 255. 353. 449. 494, S'S 
 
 256, 353, 450 
 
 256, 353. 450, 451. 515 
 
 255,449 
 
 • 354 
 256, 354 
 
 • 354 
 . 44& 
 
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ADDENDA ET CORRIGENDA. 
 
 Page 176, add Drax v. Foohs ([i8g6] i Q. B. i) as a note to the proposition that a 
 married - woman cannot be an "outvoter"' on the Local Government Eegister 
 of Voters. 
 
 ge 18, note 3, for 23, read 33. 
 
 , 64, note I, for L. v. P., read 
 
 P. V. L. 
 , 134, note 2, for 117, read 11 17. 
 160, 3 from bottom, /w 1889, read 
 
 1869. 
 182, note 2, for 317, read 31. 
 19s, note 7, /or 36, read 26. 
 204, note 5, /or l5Ves. 191, read 
 
 13 Vee. 190. 
 227, note 5, for 57, read 27. 
 
 Page 407, note 3, for Times, read 1 1 
 
 Times. 
 „ 432, note 8, /or 2 P. D., reofZ L. E. 
 
 2 P. & M. 
 ,, 610, marginal note, /or 1887, read 
 
 1877. 
 „ 714, note 10, for 16, read 15. 
 „ 754, note 6, for [1895], '"'^"■^ [1894]. 
 „ 776, note 10, for [1893] A.pp., read 
 
 13 App. 
 „ 842, note 'ijf'"' '7? »'«<'<^ 19- 
 
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THE LAW OF THE 
 
 DOMESTIC RELATIONS. 
 
 PART I. 
 
 HUSBAND AND WIFE. 
 
 CHAPTER I. 
 
 THE LEGAL CHARACTER OF MARRIAGE. 
 
 PAGE 
 
 The Family the Peobable Oeigin of Human Society . i 
 
 VAEiors Aspects of Maeelagb 2 
 
 Legal Chaeactee of Makeiagb . . ... 3 
 
 Social Effects of Maeeiagb .... , 4 
 
 Cheistian Basis of English Matrimonial Law . 4 
 
 Maeeiage Conteact a Consensual Civil Contract 5 
 Semper Pe^sisumitue peo Mateimonio ... .5 
 
 Conditions in Kbsteaint of Marriage Invalid ... 7 
 
 Conditions Precedent 9 
 
 Conditions Subsequent 9 
 
 Effect op a Gift over 10 
 
 diffeebncb between a limitation until marriage and a 
 
 Condition Subsequent 10 
 
 CONTEACTS IN EbSTEAINT OF MARRIAGE II 
 
 Gifts Providing foe Futueb Sepaeation of Husband a.nd 
 
 Wipe 11 
 
 Whatever may have been the most early form of human society, The family the 
 it is now generally accepted that the Family is the parent of social of human°"^"^ 
 and political life, as it has existed from remote historic times down society. 
 to the present period. The fundamental conception of the term 
 family is the union of man and woman, the weaker protected by 
 the strong, but ministering to his wants ; and from this union 
 spring other lives, which are bound together by their common 
 origin and affection. To this social nucleus were added in process 
 of time strangers serving as slaves, whose services the tasted 
 
 A 
 
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HUSBAND AND WIFE. 
 
 [part 
 
 Permanent 
 character of 
 marriage 
 among the 
 higher races. 
 
 Marriage mori 
 than a con- 
 tract; it is a 
 status. 
 
 Various 
 aspects of , 
 marriage. 
 
 An Institution, 
 
 A status reli- 
 gious in its 
 nature. 
 
 sweets of softer life made necessary, till little by little was built 
 up that social structure which found its widest development in the 
 patriarchal life of the East and its severest in the stern patria 
 potestas of ancient Rome. This union was no mere temporary 
 consorting together of man and woman, but one lifelong bond ; 
 and it is difficult to imagine any other condition between the two, 
 when it is remembered that the wife was deemed but little more 
 than a personal chattel of the husband, over whom he had the 
 fullest power. It is only in the later stages of civilization, when 
 woman has taken a more equal rank with man, that this bond is 
 more easily dissolved. Polygamy, or the taking of more wives 
 than one, in no way affected the duration of the tie. This union, 
 then, from the distant time when human life began to crystallize 
 into ordered shape and form, has among all the higher races been 
 permanent and life-long, and is called Marriage. Marriage signifies 
 both the acts which create the tie and the state of those who are 
 bound by it. 
 
 ' The term " contract" has in modern times been generally ap- 
 plied to the relationship of those who enter the state or condition 
 of matrimony, because, no doubt, of the essential element of con- 
 sent and agreement between the parties intending to become man 
 and wife ; but marriage is more than a contract, it is a stakes, 
 the conditions of which are regulated for and not h]/ those who 
 enter it. After the marriage is perfected, the semblance of a 
 true contract is at an end. Thus, the Roman jurists did not 
 discuss it under the head of Obligations, but under Status, or 
 the law of Persons. For convenience, and in imitation of eminent 
 authors who have dealt with this subject, the term contract will 
 be used to designate this relationship. 
 
 Marriage has been defined in various ways by various authors: 
 as a status or institution ; as a real or a consensual contract ;' 
 as a religious bond ; and as a purely civil engagement. In fact, 
 it has been regarded from the lofty sacramental view of the 
 Church of Rome down to a mere agreement for the propagation 
 of the species. 
 
 " Marriage has been well said to be something more than a 
 contract — either religious or civil — to be an Institution." ^ 
 
 " Marriage is a state or relation, depending for its exist- 
 ence upon the fact of parties competent to contract the relation, 
 and their legally voluntary present consent to do so, with 
 
 1 There has been much discussion among commentators on Roman law as to whether 
 marnage was a real or consensual contract, but the modern opinion (based on that of 
 Savigny) is, that it is neither the one nor the other ; and that under the Roman law it 
 ■was a conveyance operating upon the status of at least one of the parties. 
 
 - Per Lord Penzance in Hyde v. Hyde ami Woodmansee, L. R. i P. & D. 130, 133. 
 
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CHAP. I.] LEGAL CHARACTER OF MARRIAGE. 3 
 
 such formalities as the law of the place requires for its valid 
 solenmisation." ' 
 
 " Marriage is the civil status of one man and one woman a status. 
 united in law for life, under the obligations to discharge to each 
 other, and the community, those duties which the community by 
 its laws holds incumbent on persons whose association is founded 
 on the distinction of sex." ^ 
 
 The following is put forward as a description pointing to the 
 condition of the parties subsequent to their entering upon the 
 marriage state : " The voluntary social union of man and woman 
 for an unlimited time, entailing certain mutual rights and duties, 
 evidenced by some legal form or ceremony — religious or secular 
 — expressive of the consent of the parties to enter such union." 
 
 The next step is shortly to discuss what is the true character Tbe legal 
 of this contract : whether it be a contract pure and simple, or a maiSa<^e. ° 
 mixture of contract and status ; and whether it is a religious or 
 civil contract in relation to the State. 
 
 "According to juster notions of the nature of the marriage 
 contract, it is not merely either a civil or religious contract, and 
 at the present time it is not to be considered as originally and 
 simply one or the other." ^ 
 
 Again : " Marriage in its origin is a contract of natural law ; Marriage a 
 it may exist between two individuals of different sexes, although to be sane- 
 no third person existed in the world, as happened in the case of *'"?®.'^ ''y 
 
 J^ _ ' _ '^'^ religion. 
 
 the common ancestors of mankind. It is the parent, not the 
 child, of civil society, principium urhis et quasi seminarium rei- 
 puhlicm. In civil society it becomes a civil contract, regulated 
 and prescribed by law, and endowed with civil consequences. In 
 most civilized countries, acting under a sense of the force of 
 sacred obligations, it has had the sanctions of religion super- 
 added. It then becomes a religious as well as a natural and 
 civil contract ; for it is a great mistake to suppose that because 
 it is the one, therefore it may not likewise be the other. Heaven 
 itself is made a party to the contract, and the consent of the in- 
 dividuals pledged to each other is ratified and consecrated by a 
 vow to God." '' 
 
 Mr. Justice Story also holds it to be more than a mere con- 
 tract, for he says : " I have throughout treated marriage as a 
 contract, because this is the light in which it is ordinarily viewed 
 by jurists, domestic as well as foreign. But it appears to me to 
 be something more than a mere contract. It is rather to be 
 
 ^ Story, Conf. of Laws, b. 112 a. 
 
 2 Bishop, Law of Marriage and Divorce, ». 3. 
 
 3 Per Lord Stowell in Lindo v. Belisario, 1 Hag. Con. 216, 230. 
 
 ' Per Lord Stowell in Dalrijmple v. Dalrymph, 2 Hag. Con. 54, 63. 
 
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4 HUSBAND AND WIFE. [pakt i. 
 
 deemed an institution of society founded upon the consent and 
 contract of the parties ; and in this view it has some peculiarities 
 in its nature, character, operation, and extent of obligation, dif- 
 ferent from what belong to ordinary contracts." ' 
 Social effects "Marriage is a contract sui generis, and differing in some 
 of marriage. j.ggpgg,.g ^^^^ ^jj q^^^q^ Contracts, so tbat the rules of law which 
 are applicable in expounding and enforcing other contracts may 
 not apply to this. The contract of marriage is the most import- 
 ant of all human transactions. It is the very basis of the whole 
 fabric of civilized society. The status of marriage is juris gentmm, 
 and the foundation of it, like that of all other contracts, rests on 
 the consent of parties ; but it differs from other contracts in this, 
 that the rights, obligations, or duties arising from it are not left 
 entirely to be regulated by the agreement of parties, but are to 
 a certain extent matters of municipal regulation, over which the 
 parties have no control, by" any declaration of their will. It 
 confers the status of legitimacy on children born in wedlock, and 
 with all the consequential rights, obligations, or duties thence 
 arising ; it gives rise to the relations of consanguinity and 
 affinity ; in short, it pervades the whole system of civil society. 
 Unlike other contracts, it cannot in general, amongst civilized 
 nations, be dissolved by mutual consent ; and it subsists in full 
 force even although one of the parties should be for ever rendered 
 incapable, as in the case of incurable insanity or the like, from 
 performing his part of the mutual contract." ^ 
 Christian basis The matrimonial law of this country is adapted to the marriage 
 matrimoaial of Christians and is inapplicable to polygamous connections ;' 
 '"''• and while an English subject retains his English domicil he 
 
 cannot contract a valid marriage with the subject of a foreign 
 country which permits polygamy, the marriage being carried out 
 according to the forms and ceremonies (if any) of that country.* 
 It would seem to be doubtful, according to the law of this 
 country, whether a marriage between a domiciled Englishman and 
 a native of such foreign country would be good on the ground of 
 " necessity," where it was impossible for the marriage to be 
 celebrated by a recognized English minister or official." But 
 
 ^ Conf. of Laws, s. io8 n. 
 
 - Per Lord Robertson (Primus) in the Ednwnstone, Levett, Ivories, and Ferguson 
 divorce cases, p. 397. This judgment was delivered in a Scotch case, but is equally 
 descriptive of English marriages. 
 
 ■' Per Lord Penzance in Jltjde v. Byih and Woodmansee, L. R. i P. & D. 133. 
 
 ^ Re Bethell, Betliell v. JSildjjard, 38 Ch. D. 220. 
 
 ^ See Basuto and British Be'chuanaland Marriage Act, 1889 (52 & 53 Vict, c, 38), 
 passed to validate marriages celebrated in tliose teriitories between parties (one or botlj 
 being British subjects) by any minister of religion of any denomination of Christians, 
 duly appointed or ordained or reputed to be so, if properly registered within three years 
 of celebration. 
 
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CHAP. I.] LEGAL CHARACTER OF MARRIAGE. 6 
 
 a " Christian marriage " does not mean strictly only a marriage " Christian 
 between Christians, but monogamous, that is, a marriage exclud- ^o^iygamoue 
 ing the taking of more than one spouse ; thus, where a marriage 
 was had between a British subject and a Japanese woman, 
 and it was proved that they were validly married according 
 to tbe laws of Japan, and by those laws the husband was ex- 
 cluded from taking more than one wife ; the marriage was held 
 good.^ 
 
 Of late years a great change has taken place in English law in Marriage con. 
 this matter. Formerly the religious element in matrimony was gensnli'^civii 
 more prominent, but since the year 1836,^ it would be more *'™*™'^^- 
 correct to say that in the eye of the law the civil aspect has pre- 
 dominated. The consensual nature of the marriage contract 
 remains untouched ; but while the offices of the clergy of the 
 Established Church are no doubt retained, a religious ceremony 
 of marriage is no longer an obligation in the eye of the law, and 
 marriage is treated as a civil contract. The priest and registrar 
 are on the same level, and a State or official witness is now 
 appointed of the consent of the parties, and to be a guarantee of 
 propriety and regularity. By the law of England, then, the 
 legal character of marriage as the inception of the matrimonial 
 union is a consensual civil contract. But, as before pointed out, 
 the effect of marriage is not confined to that of ordinary contracts, 
 for a new status is created between the contracting parties, which 
 affects not only themselves but the society at large in which they 
 have taken up their matrimonial abode. In other words, marriage Marriage an 
 in its widest sense is an Institution. From this fact that the institution. 
 social union of the spouses is a status and not a mere contract 
 flows one important result, namely, that the State or legislature 
 has it in its power to cure an invalidity arising from mere defects 
 in form where the parties marrying had a matrimonial intent : 
 so too, on the contrary, it can render null and void marriages 
 already contracted if it thinks fit so to do. 
 
 The marriage state being the chief foundation on which the 
 superstructure of society rests, it follows naturally that the law, 
 which is the expression of the sentiments prevailing among 
 organized communities, assumes a favourable attitude towards the 
 state. The presumption of the law is clearly in its favour. 
 Semper prmsiomitior pro matrimonio is an invariable legal maxim.^ Semper praj- 
 This presum'ption of law must prevail unless broken in upon, and matrimonio. 
 is much stronger than any ordinary legal presumption in the 
 
 1 Brinldey v. Att.-Gen., 15 P. D. 76. 
 
 2 6 & 7 "Wm. IV. c. 85. 
 
 ■^ Steadman v. Poioell, I Add. 58. 
 
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G HUSBAND AND WIFE. [paet i. 
 
 case of any other fact to be proved or disproved. The burden 
 of disproof not only lies on those impeaching the marriage, but 
 the fact of marriage is not to be treated as any other fact, to be 
 proved or disproved by the balance of testimony;^ and the 
 presumption of law is not lightly to be repelled or broken in 
 upon by a mere balance of probability, but the evidence for the 
 purpose of repelling it must be strong, distinct, satisfactory, and 
 conclusive.^ 
 Omnia rite Every intendment shall be made in favour of a marriage de 
 
 untur.'^™™" /acto ; and where an act appears to have been done by proper 
 persons, the law will intend that everything was done in a proper 
 manner — omnia rite acta proisumuntur. This legal presumption 
 requires strong and satisfactory evidence to displace it ; and 
 mere absence of proof of the regularity of the marriage rites and 
 ceremonies will not displace it.^ The more distant the date 
 of the marriage the more readily will the maxim omnia rite acta 
 prcBSumuntur be applicable. Accordingly, where a marriage was 
 proved to have been solemnized dc facto over a hundred years 
 back by parties who intended that it should be a good marriage, 
 and it was celebrated liond fide and openly, this maxim was held 
 applicable.' Again, mere irregularity in the form of the 
 ceremony is not fatal to the validity of a marriage ; ^ and it is 
 a rule that has pervaded the law of marriage, that directions as 
 to the manner, and even prohibition, under a penalty other than 
 niollity, do not necessarily imply a nullity ,'' — that is, where the 
 parties do not set at naught the rules dealing with the essentials 
 of the contract. The force of this presumption is much heightened 
 where it is proved that the parties (whose marriage is in question) 
 
 1 De Thoren v. The Attm-ney- General, i App. Cas. 686. This was a Scotch case ia 
 the House of Lords ; but the strong presumption in favour of marriage is common to the 
 legal systems of England and Scotland. 
 
 " Per Lord Lyndhurst in Morris v. Davies, 5 CI. & Fin. 163, 265. In Piers v. Fiers, 
 I H. L. Cas. 331, Lord Brougham (p. 370) objected to the use of the word "con- 
 clusiye." 
 
 ^ Piers V. Piers, 2 H. L. Cas. 331. In this case the fact that no evidence was forth- 
 coming of the granting of a special licence by the Bishop of Sodor and Man at a con- 
 siderable time after the marriage alleged to have been had on the special licence, and 
 celebrated in the Isle of Man, was held not to displace the presumption that there had 
 been one granted, and that the parties had validly married in pursuance of it. 
 
 ^ The Lauderdale Peerage, 10 App. Cas. 692. 
 
 " Oatterall v. Catterall, i Eobert. 580. 
 
 ^ Per Willes, J., in Beamish v. Beamish, 9 H. L. Cas. 274, 331 ; The Lauderdale 
 Peerage {uU sup). In the course of his speech in this case Lord Blackburn said 
 (p. 748) : "We must remember what has been so pointedly and strongly laid down by 
 many judges with regard to the law of marriage, that although it may be enacted that 
 a marriage which could otherwise have been a good marriage shall not in fnture he a 
 good marriage unless there be this or that attached to it, the burden is upon those who 
 
 say that such a thing has been enacted to show distinctly that it has been enacted 
 
 The burden rests strongly upon those who deny the validity of a marriage to show that 
 the enactment clogged marriage with a condition precedent, and did not merely establish 
 a penalty upon the persons who did what was irregular and improper, is, I think, quite 
 clear." 
 
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CHAP. I.J LEGAL CHARACTER OF MARRIAGE. 7 
 
 distinctly intended to marry, and went through a form of 
 marriage with that intent.^ A marriage celebrated between 
 British subjects according to the rites of the Eoman Catholic 
 Church in British dominions abroad where the Established 
 Church does not exist is valid .^ Where the parties have 
 lived and cohabited together as man and wife for a long 
 time after having gone through a form of marriage, in- 
 tending to contract a valid marriage, and believing that 
 they had done so, and facts are not brought fbrward to 
 prove the contrary ; thus, cohabitation for thirty years as 
 man and wife has been held sufficient evidence of marriage 
 upon which to found an order of removal of a pauper ;' and 
 general reputation has been held sufficient evidence of marriage.* 
 But this presumption of law in favour of marriage does not hold Exceptions to 
 good under all circumstances. Thus, in criminal matters, as on ® ™ ''' 
 a charge of bigamy, or in suits for dissolution of marriage, judicial 
 separation, and restitution of conjugal rights, and the like, the 
 fact of marriage must be strictly proved. 
 
 The policy of the law of England is also in other matters Conditions in 
 
 ,-,./. p . T 1 Ti.' 1 restraint of 
 
 eminently in favour ot marriage ; accordingly, conditions and marriage in- 
 contracts in respect of property which tend generally to restrain ™'"'- 
 marriage, are, broadly speaking, treated as " unfavourable and 
 contrary to the common weal and good order of society " ^ ; for 
 such encourage licentiousness and tend to depopulation.'* The 
 restraint need not be an absolute one, but will be void if only it 
 has a probable tendency to check marriage.' These restraints 
 are void both by the common law and the ecclesiastical law, and 
 the courts hold them to be in terrorem only, and refuse to give 
 effect to them. The rule of the common law is that where the 
 conditions are not illegal they shall be binding ; and this is the 
 principle governing conditions annexed to the devise of lands.*" 
 The courts of equity, on the other hand, borrowing from the Oivii law de- 
 canon or ecclesiastical law,' have held conditions affecting xv\e. 
 
 1 Piers T. Piers (ubi swp.). 
 
 2 James v. James and Smith, 51 L. J. P. 24. 
 
 ^ JRex T. Stockland, Burr. Sett. Gas. 508 ; see also St. Devereux v. Much Dew 
 Cliurcli, 1 Wm. Bl. 366. 
 
 ^ Doe dem. Fleming v. Fleming, 4 Bing. 266. See Starkie on Evidence, p. 45. 
 " The circumstance that the parents cohabited as husband and wife, acknowledged and 
 addressed each other in society as such .... a£ford[s] the strongest presumption that 
 the parties reall v did stand in the relative position of husband and wife." 
 
 ^ Per Lord thurlow in Scott v. Tyler, 2 Dick, 712, 718. 
 
 ^ Peers v. Lowe, 4 Burr. 2225. 
 
 ^ Keily v. Monck, 3 Eidg. P. 0. 205. 
 
 ^ Jones v. Jones, 1 Q. B. D. 279. 
 
 * This in its turn was derived from the civil law, which in this matter was based 
 upon the circumstances of social life prevailing at Eome at the beginning of the Empire. 
 See the enactments, lex Julia and lex Pafia et Poppcea. Lord Eosslyn in Stachpole v. 
 
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8 HUSBAND AND WIFE. [paet i. 
 
 pure personal property to be void which would be deemed 
 valid at common law. The effect of this is that conditions 
 affecting devises of lands, with which the canon law never had 
 any concern, when dealt with in the courts of equity, follow the 
 rules of the common law, while pecuniary legacies, having for- 
 merly been administered by the ecclesiastical courts, in which the 
 rules of the canon law prevailed, were governed by the rules of 
 the latter. Thus, it was quite possible that where a testator 
 annexed certain conditions to a devise of lands, and to a legacy 
 of personalty, the court would have been constrained to hold 
 that the conditions annexed to the gift of realty were valid and 
 binding, while the gift of personalty was pure and unfettered by 
 Modification the conditions and restraints. However, the ancient rule of the 
 of^ie of civil pj^j jg^^ ^^ Ijgg^ jjj^gjj modified and relaxed, and conditions 
 which do not directly or indirectly import an absolute injunction 
 to celibacy are valid.' Thus, conditions restraining marriage 
 under twenty-one, or other reasonable age, without the consent 
 of executors, guardians, or the like,' or requiring or prohibiting 
 
 Beaumont (3 Ves. 88, 96) thus accounts for the introduction of the principles of the 
 ecclesiastical law. "The case of all these questions is plainly this. In deciding ques- 
 tions that arise upon legacies out of land, the court very properly followed the rule that 
 the common law prescribes and common-sense supports, to hold the condition bindingwhere 
 it is not illegal ; where it is illegal the condition would be rejected, and the gift pure. When 
 the rule came to be applied to personal estate, the court felt the difficulty uponthe supposi- 
 tion that the ecclesiastical court had adopted a positive rule from the civil law upon 
 legatory questions ; and the inconvenience of proceeding by a different rule in the con- 
 cuiTent jurisdiction (it is not right to call it so), in the resort to this court instead of 
 the ecclesiastical court, upon legatory questions — which after the Restoration was very 
 frequent — in the beginning embarrassed the court. Distinction upon distinction was 
 taken to get out of the supposed difficulty. How it should ever have come to be a rule of 
 decision in the ecclesiastical court is impossible to be accounted for, but upon this circum- 
 stance, that in the unenlightened ages, soon after the revival of letters, there was a Wind 
 superstitious adherence to the text of the civil law. They never reasoned, but only 
 looked in the books and transferred the rule, without weighing the circumstances, as 
 positive rules to guide them. It is beyond imagination, except from that circumstance, 
 how in a Christian country they should have adopted the rule of the Eoman law with 
 regard to conditions as to marriage. First, where there is an absolute unlimited liberty 
 of divorce, all rules as to marriage are inapplicable to a system of religion and law where 
 divorce is not permitted. Next, the favour to marriage, and the objection to the restraint 
 of it, was a mere pohtical regulation applicable to the circumstances of the Roman 
 Empire at that time, and inapplicable to other countries. After the civil war the de- 
 population occasioned by it led to habits of celibacy. In the time of Augustus the Julian 
 law, which went too far, and was corrected by the lex Papia et Poppcea, not only 
 offered encouragement to marriage but laid heavy impositions upon celibacy. That being 
 established as a rule in restraint of celibacy (it is an odd expression), and for the 
 encouragement of all persons who would contract marriage, it necessarily followed that 
 no person could act contrary to it by imposing restraints directly contrary to the law. 
 Therefore it became a rule of construction that these conditions were null. It is difficult 
 to apply that to a country where there is no law to restrain individuals from exercising 
 their own discretion as to the time and circumstances of the marriage their children or 
 objects of bounty may contract. It is perfectly impossible now, whatever it might have 
 been formerly, to apply that doctrine not to lay conditions to restrain marriage under the 
 age of twenty-one to the law of England, for it is directly contrary to the political law of 
 the country. There can be no marriage under the age of twenty-one without the consent 
 of the parent." 
 
 ^ Hcott V. Tyler, 2 Bro. C. C. 431. 
 
 ^ Semmings v. Mwnchley, i Bro. C. C. 303. 
 
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CHAP. I.] LEGAL CHARACTER OF MARRIAGE. '.I 
 
 marriage with particular persons,' or a native of any particular 
 country,^ or of a particular religious denomination,' are valid 
 and legal.* The law, too, has imposed statutory restraints to 
 ■check early and improvident marriages, and in former days a 
 marriage which had been contracted without the consent of the 
 proper parties was null and void ; but this terrible punishment 
 has been commuted for the milder penalty of forfeiting the 
 advantages accruing from the marriage.* 
 
 In the next place, it is to be observed that there is a marked Oonditione 
 diflFerence between terms annexed to a gift which operate as con- 
 ditions precedent and such as operate as conditions subsequent. 
 Where the condition affecting land is precedent, as creating an 
 estate, it is generally held to be beneficial, and to be construed Eeaity. 
 favourably, as, for instance, a devise of land conditioned on 
 marrying with consent will not take effect until the condition is 
 complied with," for it is the compliance with the condition 
 that vests the estate. So, also, where a legacy of pure personalty 
 is bequeathed to a person upon marriage under twenty-one or 
 other reasonable age, upon the condition of obtaining the consent 
 of a particular person^ it will not vest until the consent has been 
 first obtained, and the condition is no longer held to be merely 
 in terrorem and void ; ' for these conditions do not import, 
 directly or indirectly, an absolute injunction to celibacy. At Gift over, 
 any rate, such condition precedent is valid in the case of a per- 
 sonal legacy where it is accompanied by a bequest over on 
 marriage without consent.^ Where the consent of trustees or 
 executors is to be obtained, that of all must be obtained ;' 
 though it would seem that where one or more had died the con- 
 sent of the survivors would suffice.'" 
 
 Where the condition is subsequent, as it operates by way of ConditionB 
 destruction of an estate already in existence, and is of a penal ^" ^^i''™ • 
 nature, it should be construed strictly. If a legacy depends upon 
 a condition which tends towards a general restraint of marriage, 
 and is subsequent in its operation, it remains good, and is purged 
 of the condition, which is void, even though there is a gift over." 
 
 ' Jervois v. Duke, i Vern. 19. 
 
 ^ Perrin v. Lyon, 9 East, 170. 
 
 3 Duggan v. Kelly, 10 Ir. Eq. Eep. 295. 
 
 * See 2 Wms. Exors. 1 140. 
 
 ^ 26 Geo. II. c. 33 ; 4 Geo. IV. u. 76. See post, chap. vi. p. 89. 
 
 « Fry V. Farter, I Ch. Cas. 138 ; Hervey v. Aston, I Atk. 361 ; Stackpote v. 
 Beaumont, 3 Ves. 8g. 
 
 ' Stackpole v. Beaumont (uhinnp.). See also Jervois v. Diike {ubi sup.) ; Perrin v. 
 Lyon {ubi sup.); Jenner v. Turner, 16 Ch. D. 188; Yonge v. Furse, 26 L. J. Oh. 352. 
 
 8 Gardiner v. Slater, zt, Beav. 509 ; Creagh v. Wilson, 2 Vern. 572. 
 
 ^ Clarice v. Parker, 19 Ves. 17. 
 1° I Eop. Leg. (3rd ed.) 691. 
 
 " Morley v. Bennoldson, 2 Ha. 570, and [1895] i Cli. 449. See Gray v. Gray, 
 23 L. R. (Ir.) 399. 
 
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10 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Effect of gift 
 over. 
 
 The result is the same where the gift is of a mixed fund arising 
 from the proceeds of a sale of realty and of pure personal estate, 
 and possibly of a fund resulting from a sale of realty ; ' so, 
 also, where the restraint is not general, but directed against 
 marriage with a particular person, or against the marriage of a 
 particular person, where there is no gift over of the legacy. The 
 like principle is equally applicable to a gift over intended to reduce 
 the amount of a legacy as to a gift affecting the entire bequest.* 
 But where on non-compliance with a condition subsequent there is 
 a gift over, but not of a mere residue, the condition is considered 
 good and valid, and the rule of the common law rather than of 
 the civil is followed.' The gift over is held to be a clear 
 proof that the donor or testator intended the conditions he 
 imposed should be complied with, and which intention the courts 
 feel themselves constrained to effectuate. Though a condition 
 subsequent may be in effect a restraint upon marriage, yet it will 
 be held good in the case of persons who have been already 
 married, and if accompanied by a gift over will take effect ; thus, 
 a condition annexed to a gift to a widow that it shall cease on 
 her second marriage, if accompanied with a gift over, is valid ; * 
 so, too, a condition in restraint of the second marriage of a man 
 is not void ; and where property was given to a woman and her 
 husband during their joint lives, and to the survivor during his 
 or her life, with a proviso that if the husband survived his wife 
 and married again, the property should go over, and the husband 
 survived his wife and married again, it was held by the Court of 
 Appeal that the proviso was valid, and that the gift over took 
 effect.^ But, as before shown, conditions which do not directly 
 or indirectly import an absolute injunction to celibacy are clearly 
 lawful, as a condition annexed to a testamentary gift to ask the 
 consent of a particular person,'' or not to marry a widow ; and 
 a conditional annuity to a widow durante viduitate is good.' 
 A limitation of a gift to a donee to take effect until marriaste 
 tion until mar- IS diHerent irom a condition subsequent which operates to destroy 
 dittonTubse-'" ^"^ interest already created, and is held good and valid ; ' that 
 quent. is, marriage may be made the ground of a limitation ceasing or 
 
 commencing.' Thus, where there was a covenant to pay to 
 ^ Bellairs v. Bellairs, L. E. i8 Eq. Jio. 
 ^ Se Bellamy, Piekard v. Solroyd, 48 L. T. 212. 
 Strattm y Grymes, 2 Vern. 357; Malcolm v. 0' Callaghan, 2 Madd. 349; 
 N-etvton v. Marsden, 2 J. & H. 356 ; Allen v. Jackson, i Ch. D. 399. 
 
 6 ^''ff™ ^ Marsden [uU sup.). r, ^ij^,^ ^_ Jachson (uU sup.). 
 " Scott V. Tyler, 2 Bro. C. C. 431. 
 
 7 Tricler M. Kingsbury, 7 W. E. 6^2 ; Craven v. Brady, L. E. 4 Ch. App. 296 
 Charlton v. Coombes, 11 W. E. 1038. fr » 
 
 9 D^'' ^^^orleyv. nennoldson, 2 Ha. 570 ; [1895] i Ch. 449. 
 ier Lord Cottenham in Wehb v. Grace, 2 Ph. 701, 702. ,For the difference 
 between a limitation and a condition see Be Moore, Trafford v. MaconocMe, 39 Ch.D. 1 16. 
 
 Difference be- 
 tween limita- 
 
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CHAP. I,] LEGAL CHARACTER OF MARRIAGE. 11 
 
 B. 0. during her life an annuity of ;£^40, subject to the proviso 
 that in case E. C. should at any time thereafter happen to marry, 
 the annuity should be reduced to ;^20, which sum should in 
 such case be paid and payable to B. C. from the time of her 
 marriage for the remainder of her life, it was held (reversing the 
 decision below ' ) to be in effect a covenant to pay an annuity 
 of i^40 until marriage, and afterwards an annuity of ;^20 only ; 
 the proviso for reducing the annuity being part of the original 
 gift itself, and not operating as a condition subsequent so as to 
 be void as in restraint of marriage.^ 
 
 On like principles contracts in restraint of marriage, whether Contracts in 
 general,' or restricted against marriage with a particular person marriage. 
 who is not correspondingly bound,^ are void. On grounds of 
 public concern and welfare, and that marriage should be free and 
 unfettered, and for the benefit of society, the courts will likewise 
 refuse validity to underhand bonds, whether entered into for the 
 purpose of defrauding parents or those who stand in the place of 
 parents,^ or for the purpose of promoting marriages (marriage Marriage bro- 
 brocage contracts), for such tend to deceit and fraud.'' cage con rac s. 
 
 Upon similar principles of public policy, gifts providing for a Gifts providing 
 future separation between husband and wife have been from early p'JiraJion of 
 times held utterly void ; ' because such gifts may tend to pro- Jiij^band and 
 mote a separation of the married couple, and so cause scandal, 
 and offend against the feelings of society ; accordingly, where a 
 testator bequeathed a legacy of £2 los. a week to be paid to his 
 sister during such time as she should live apart from her husband 
 before his son attained the age of twenty-one for her maintenance 
 whilst so living apart from her husband, it was held that such 
 gift was altogether void, as its commencement and duration were 
 contrary to the policy of the law.^ The arrangements between 
 husband and wife on mutual separation will be discussed in a 
 subsequent chapter.' 
 
 1 16 L.J. Ch. 113. 
 
 ^ Webh V. Grace (ubi sup.). 
 
 ' Baker t. White, 2 Vern. 215. 
 
 * Key V. Bradsliwi:, 2 Vern. 102. 
 
 5 Woodh(mse v. Shepley, 2 Atk. 535. 
 
 * Hall V.Potter, Show. P.O. 76 ; Turtan v. Benson, 2 Vern. 764. See the converse 
 case of Neville v. Wilkinson, 1 Bro. C. C. 543, as modified by Roberts v. Roberts, 3 P. 
 Wms. 66. 
 
 ' Brown v. Pech, i Ed. 140; Wren v. Bradley, 2 De G. & Sm. 49. 
 ^ Be Moore, Trafford v. Maconocliie (ubi sup.). 
 ' See post, chap. xvii. 
 
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CHAPTEE. II. 
 
 A SHOKT HISTORY OF THE MA.RRIAGE LAWS 
 OF ENGLAND. 
 
 PACE 
 
 Clandestine Maeeiages Discountenanced by the Chtjech 12 
 Consensus of Parties Essential Element op Contract . 13 
 
 Sponsalia per Verba db PRiESENTi 13 
 
 Sponsalia per Verba de Futuro 13 
 
 Ecclesiastical Law op England not a Foreign Law . 14 
 Intervention op a Priest Formerly Necessary to a Valid 
 
 Marriage 
 
 Solemnization in Facie Ecclesi^ . 
 
 Clandestine Celebration .... . . 
 
 Marriage by Mere Consent : its Efpbct 
 
 The Statute op Precontracts 
 
 State op the Law before Lord Hardwickb's Act 
 Lord Hardwickb's Act, 26 Geo. II. c. 33 (1753) . 
 Marriage Act, 4 Geo. IV. c. 76 (1823) .... 
 Marriage Act, 6 & 7 Will. IV. c. 85 (1S36) . 
 Marriage Act, 19 & 20 Vict. c. 119 {1856) 
 
 15 
 15 
 16 
 16 
 
 17 
 18 
 
 19 
 21 
 22 
 23 
 
 In this chapter a short sketch will be presented of the origin 
 
 and growth of the laws of this country respecting marriage, and 
 
 a summary of the leading enactments embodying the various 
 
 changes. The tendency in England, as far as legislation has 
 
 hitherto progressed, has been to regard marriage less as a religions 
 
 obligation and more as a civil contract, for matrimony with all its 
 
 requirements was formerly looked upon as a spiritual act within 
 
 the province of the courts Christian ; ' and the spirit in which 
 
 modern legislation affecting it has been conceived, clearly evinces 
 
 that its temporal and civil nature is to be held paramount, and 
 
 the basis of present and future change. 
 
 Aim of the A long series of patristic writings, of papal and episcopal 
 
 open and not rescripts and constitutions, of statutes and ordinances of the early 
 
 clandestine Christian emperors and kines, makes it indubitable that it was 
 
 marriages, _ ■*■ o ■' 
 
 the desire of the Church and her ministers that marriage should 
 
 ^ The promise, however, to contract marriage, and the loss consequent npon the 
 breach, was considered temporal, and under the jurisdiction of the civil courts. Diclmon 
 V. Jiolcroft, 3 Keb. 148. 
 
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CHAP. II.] MARRIAGE LAWS OF ENGLAND. 13 
 
 be celebrated openly, and in the presence of responsible witnesses, 
 and the ecclesiastical authorities regarded with much disfavour 
 secret unions (occultce conjunctioncs)} As time went on the 
 Church clothed this contract more and more with the character 
 of a religious ceremony, and treated it less and less as a civil 
 contract affecting the state in which the parties lived. But the consensus of 
 consensus of the parties was the vital and essential portion of the tssentiareie-* 
 contract, and those who had no impediment barring their union, ^'"J* °*, "'^ 
 might by agreeing to take each other as man and wife contract a 
 good and effectual marriage. This, it is submitted, is due to the 
 influence of the Roman law, which was the law of the majority 
 of the countries governed by the Church. The effect of the con- later vention 
 sensus of the parties being the important and essential element in necessary °* 
 forming the vincxdum, and the ceremonies attending the formation 
 but accidents, was that frequent marriages were made in which 
 the consent of the parties was expressed, but not by any out- 
 ward manifestation of religious rites. " The canon law, possibly 
 through the force of circumstances, was obliged to admit that it 
 is a present and perfect consent which alone maketh matrimony, 
 without public solemnization or carnal copulation." ^ These irregular mar- 
 irregular marriages are now known by the name of sponscdia per f^a^fvei-ia 
 verba cle prcesenti, and sponsalia per verba de fiduro cum coimld,^ '^^ J'"''^^^*'' 
 
 TT • • Tin 11-1- „. a,nd sjiunsalia 
 
 In discussing these marriages. Lord otowell said, m one of his per verba de 
 most celebrated judgments,'' " Different rules prevailed relative LorTstoweii 
 to their respective effects in point of lesral consequence to the ""^ irregular 
 
 ■^ , ^ '^ -^ marriages. 
 
 cases of regular marriages, irregular marriag"es, and of mere 
 promises and engagements. In the regular marriage everything 
 was presumed to be complete and consummated in substance, but 
 not in ceremony ; and the ceremony was enjoined to be under- 
 gone as a matter of order. In the promise or sponsalia de futuro, 
 nothing was presumed to be complete or consummated either in 
 substance or in ceremony ; mutual consent would release the parties 
 from their engagements, and one party, without the consent of 
 the other, might contract a valid marriage regularly or irregularly 
 with another person ; but if the parties who had exchanged the 
 promise had carnal intercourse with each other the effect of that 
 carnal intercourse was to interpose a presumption of present consent 
 at the time of the intercourse, and to convert the engagement into 
 an irregular marriage, and to produce all the consequences attri- 
 
 1 Tertullian, De Pudicitia, iv. (editio Nicli. Rigaiti!, p. 557). 
 
 * Swinburne on Spousals, p. 14. 
 
 ^ In the first, some such words were used as, "I take you to be my wife ; " "I 
 marry you ; " "You and I are man and wife." In the second, " I will marry you ; " or 
 " I will take you to be my wife. " Tliese marriages will be treated more fully in the 
 next chapter on the marriage laws of Scotland. 
 
 * Dalrymple v. Dalrymple, 2 Hag. Con. K. 54, 65. 
 
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14 
 
 HUSBAND AND WIFE. [paet i. 
 
 butable to that species of matrimonial connection." Previously, 
 to the Marriage Act in this country, when such a contract of 
 marriage was proved, the Ecclesiastical Court would compel the 
 reluctant party to solemnize the marriage in the Church.' 
 Marriages ^e;-- There is no lack of evidence that from the thirteenth to the 
 "»« vtiw b^ middle of the sixteenth century these marriages were held by the 
 the canon law. Popes and the Canonists to be perfectly good." The abuses and 
 Tr^ent^"'"'"'" °^ scandals arising from what can only be called this laxity of 
 discipline, compelled the Council of Trent to introduce the 
 necessity of marriages among Eoman Catholics being celebrated 
 in the presence of the parish priest, after due proclamation of 
 Distinction be- banns, or the obtaining of an episcopal licence. But the 
 irdtoefnliT marriages not celebrated in the presence of the Church, and with 
 marriages. ^jjg intervention of a duly ordained minister, were distinguished " 
 from those which were so celebrated ; they were deemed 
 irregular, were discountenanced, and visited with punishments and 
 ecclesiastical censures ; and in certain cases, where the parties 
 were within the prohibited degrees, such irregular marriages were 
 annulled, while those that were regular were upheld. Broadly 
 speaking, however, they were good as far as they went, in the 
 eyes both of Church and State, and the issue were legitimate. In 
 a word, " the general law of Western Europe before the Council 
 of Trent seems clear. The fact of marriage, viz., the mutual con- 
 sent of competent persons to take one another for man and wife 
 during their joint lives, was alone considered necessary to con- 
 stitute true and lawful matrimony.^ 
 Ecclesiastical The ecclesiastical law of England is not a foreign law ; ■* it is 
 n^ford^n.^""* one of " those laws which the people have taken at their free 
 liberty, by their own consent to be used amongst them, and not 
 as laws of any foreign prince, potentate, or prelate:'" but its 
 source is chiefly foreign, namely, the canon. 
 English mar- Now the canon law did not obtain with equal force throughout 
 ferentfrom the Christendom, but Subsisted under different modifications in dif- 
 Contmentai. fg^ent countries, according as it was affected by the municipal 
 laws of the countries in which it had been introduced. Now the 
 
 ' See Baxtar v. JBuclcley, i Lee. 42. 
 
 2 A good illustration of the nature of this contract is to be found in " Measure for 
 Measure ; " and the success of the scheme for unmasking the villainy of the Lord 
 Angelo is based upon the fact that a contract of espousal (" some speech of marriage ") 
 had, five years before the opening of the play, been entered into between hini and the 
 "dejected Mariana" of the moated grange; for in ihe language of Duke Vinoentio, 
 de.scribing Angelo to her, "he is your husband on a pre-contract." — Act iv. sc. I. 
 
 ;; Per Willes, J., in Beamish v. Beamish, 9 H. L. Gas. 274, 306. The decrees of 
 the Council of Trent never obtained in this country, as the claim of the Pope to spiritual 
 supremacy had been repudiated by Henry VIIL nearly thirty years previous to their 
 signature. 
 
 * Per Lord Blackburn, in MacJconochie v. Lord Penzance, 6 App. Gas. 424, 446. 
 
 = 25 Hen. VIII. c. 21. 
 
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CHAP. II.] MAERIAGE LAWS OF ENGLAND. 15 
 
 full effect of the principles of the canon law was never allowed in 
 England ; and it has been declared to be law that the inter- intervention 
 vention of a priest was always necessary in England to make a nL^esslry to a 
 marriage, whether regular or irregular, valid and good for all valid marriage. 
 purposes.^ " At one period it seems to have been held that 
 a scrupulous observance of the prescribed forms in the solem- 
 nization of matrimony was essential. In Pitzherbert's Natura 
 Brevium'' it is said that " a woman married in a chamber shall 
 not have dower by the common law. Qimre of marriages made 
 in chapels not consecrated, for many are by licence of the bishops 
 married in chapels, &c. ; and it seemeth reasonable that in such 
 cases she shall have dower." So in Foxcroft's Case :' a man, 
 shortly before his death, and while infirm and in his bed, was 
 privately married to a woman then enceinte by him. The mar- 
 riage was performed by the bishop, but without the celebration of 
 the mass. It was held to be void, and the issue adjudged a 
 bastard. A similar case is mentioned as having occurred in 
 lo Edward lY.'' But the strictness of these rules was relaxed, 
 and it was afterwards generally agreed that the ministration of a 
 priest alone was sufficient to give the contract the essentials of a 
 marriage in facie ecdesice, and to confer the privileges of lawful 
 matrimony. Thus, it is laid down, that if a man and woman are 
 married by a priest in a place which is not a church or a chapel, 
 and without any solemnity of the celebration of mass, yet it is a 
 good marriage, and they are laron and feme.^ In Weld v. 
 Ohamberlayne" the marriage was by a priest, but a ring was 
 not used, according to the Book of Common Prayer. It was 
 doubted whether this formality might not vitiate the marriage, 
 and a case was ordered to be made upon the point ; but the 
 Chief-Justice Pemberton inclined to think it a good marriage, 
 there being words of contract de prcesenti repeated after a parson 
 in orders.' Down to a comparatively recent period there were 
 three methods of celebrating marriage in England : — 
 
 (l.) By soleTnnization in facie ecclesice. — The requisites of this Solemnization 
 kind of marriage were : publication of banns or the obtaining of a^^'^ "''' 
 an episcopal licence dispensing with banns ; the performance of a 
 
 ^ Queen v. Millis, lo CI. & F. 534, not following Lord Stowell in Dalrymple v. 
 Dtdrymple, 2 Hag. Con. K. 54 ; Caiherwood v. Caslon, 1 3 L. J. Ex. 433 ; Beamish v. 
 Beamish (uhi sup.). On the other hand, it has heen held in India, where the common 
 law prevails, that the intervention of a clergyman in holy orders is not necessary. 
 Madean v. Cristall, Perry's Oriental Cases, 75. 
 
 2 150 n. 
 
 3 10 Edw. I. ; 4 Vin. Abr. 218, pi. 18. 
 " 4 Vin. Abr. 38, pi. 21. 
 
 ^ 4 Vin. Abr. 38 pi. 21 ; and see Perk. 306. 
 " 2 Show. 300. 
 
 ' 2 Bop. H. & W. 448. The above is a passage cited from the first of the addenda 
 (by Jacob) to that work. 
 
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IG HUSBAND AND WIFE. [part i. 
 
 religious ceremony ; and, where the marrying couple were minors, 
 the consent of the proper parties. 
 Clandestine (2.) By clandestine celebration. — Clandestine marriages entered 
 
 celebration, j^j.^ without banns or licence, consent of guardians, or regard to 
 time or place ; all that was necessary was the presence of a priest 
 (before the Reformation) or person in holy orders (after the 
 Reformation). 
 Celebration by (3.) By mere consent. — " Herein lies the peculiarity of the old 
 naere consent. j]^g|jg{j j^^ when viewed in contradistinction to the ancient Con- 
 Difference be- tinental law. By the general law of Europe, prior to the Council 
 nenSand''" of Trent, a consensual marriage was in all respects absolutely 
 English law on perfect. By the law of England a consensual marriage was good 
 only for certain purposes. It did not give the man the right of 
 FuU and com- a husband in respect of the wife's property, nor impose on her 
 marriagrdid'' the disabilities of coverture, nor render her dowable, nor confer 
 not flow from ^^ ^j^g issue legitimacy, nor did it make the marriage of either of 
 the parties (living the other) with a third person void, though it 
 did make it voidable. Nevertheless, consensual marriages in 
 Both parties England were indissoluble.' The parties could not release each 
 solemnization other, and either could compel solemnization wi facie ecclesim? 
 ^de^ce" "' '^^® contract, too, was so much a marriage — so completely verum, 
 matrimonium — that cohabitation before solemnization was regarded 
 not as fornication, but simply as an ecclesiastical contempt. An 
 act of matrimonial infidelity was an act of adultery ; and if either 
 party entered into a second marriage, although in the most open 
 and regular manner, it might be set aside even after cohabitation 
 and after the birth of children, and the parties might be compelled 
 to solemnize the first marriage in fa.cie ecclesice. Such marriages 
 were regarded by the ecclesiastical courts as complete in substance, 
 but not in ceremony ; and the ceremony was enjoined to be cele- 
 brated as a matter of discipline, whereas they were not so regarded 
 by the temporal courts unless celebrated by some one in episcopal 
 orders. If so celebrated, the temporal courts would adopt the 
 marriage and hold it to be good ab initio, though the effect might 
 be to annul a second marriage regularly contracted in facie 
 ecclesice" ; ' that is, the regularly performed ceremony carried back 
 with it all the attributes of a valid marriage to the original 
 promise which had been duly enforced. Again, Sir William 
 Blackstone says on this point : " Any contract made per verba de 
 prcesenti, or in words of the present tense, and in case of cohabita- 
 
 1 Jessoii V. Collins, 2 Salk. 437 ; S. C. 6 Mod. 155. Wigmore's Case, 2 Salk. 437, 
 is not inconsistent with this, but simplj lajs down that by the canon law a oonti-act 
 per verba de prcesenti is a marriage. 
 
 ^ Buntinq v. Lepincfwell, 4 Rep. 29 a. 
 
 " Macq. biv. p. 7, citing Q,ueen v. MilUs, 10 CI. & F. 534. 
 
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citAp. II.] MAREIAGE LAWS OF ENGLAND. 17 
 
 tion per verba de futuro also, between persons able to contract, 
 was before the late Act (26 Geo. II. c. 33) deemed a valid 
 marriage to many purposes, and the parties might be compelled 
 to celebrate it in facie ccdesice." ^ The mutual consent of the 
 parties, the sponsalidper verba de prcesenti, constituted the vinculum 
 and made the contract veruni matrimonium; but the civil tribu- 
 nals did not recognize it as complete and carrying with it all the 
 legal incidents of marriage, because it lacked the perfecting 
 religious ceremony; but when that had been added the tribunals 
 gave effect to the transaction as though originally the parties had 
 had recourse to it, and it was immaterial into what other matri- 
 monial engagements they had in the meanwhile entered. 
 
 There is a most important statute known as the Statute of Pre- The statute of 
 
 "Prp *p nn f TAP \ fi 
 
 contracts which amply shows that the foregoing was the state of the 
 law at the time of its passing,^ and its preamble is most instructive. 
 It runs as follows : Whereas heretofore the usurped power of the 
 Bishop of Rome hath always entangled and troubled the mere juris- 
 diction and regal power of this realm of England, and also unquieted 
 much the subjects of the same, by his usurped power in them, as 
 by making that unlawful which by God's Word is lawful, both in 
 
 marriages and other things As where heretofore divers 
 
 and many persons, after long continuance together in matrimony, 
 without any allegation of either of the parties, or any other, at 
 their marriage, why the same matrimony should not be good, 
 just, and lawful, and after the same matrimony solemnized and 
 consummate by carnal knowledge, and also sometime fruit of 
 children ensued of the same marriage, have nevertheless, by an 
 unjust law of the Bishop of Eome, which is, that upon pretence 
 of a former contract made and not consummate by carnal copula- 
 tion (for proof whereof two witnesses by that law were only 
 required), been divorced and separate, contrary to God's law, and 
 so the true matrimony, both solemnized in the face of the Church 
 and consummate with bodily knowledge, and confirmed also with 
 the fruit of children had between them, clearly frustrate and dis- 
 solved. Section 2 enacted that after July i, 1540, "All and ah lawful mar- 
 every such marriages as within this Church of England shall be brated in facie 
 contracted between lawful persons .... such marriages being ^o/^|thfCd 
 contract and solemnized in the face of the Church and consum- ing any pre- 
 mate with bodily knowledge, or fruit of children, or child being 
 had therein between the parties so married, shall be deemed, 
 judged, and taken to be lawful, good, just, and indissoluble, not- 
 withstanding any pre-contract or pre-contracts of matrimony not 
 consummate with bodily knowledge which either of the parties 
 1 I Com. 439. 2 32 Hen. Vlll. c. 38. 
 
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18 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Repealed bv 
 2 & 3 Edw.Vl. 
 c. 23. 
 
 Dower ad os- 
 tium ecclesifB. 
 
 Presence of a 
 priest requisite 
 for (i) bene- 
 diction. (2) as 
 a witness and 
 pledge. 
 
 State of the 
 law before 
 Lord Hard- 
 wicke's Act. 
 
 "Fleet" mar- 
 riages. 
 
 SO married or both shall have made with any other person 
 or persons before the time of contracting that marriage which 
 is solemnized and consummate, or whereof such fruit is ensued, 
 or may ensue as afore, and notwithstanding any dispensation, 
 prescription, law, or other thing granted or confirmed by act or 
 otherwise." This Statute was repealed by 2 & 3 Edw. VI. c. 23, 
 which restored the ancient law. This latter statute was on this 
 point repealed by Lord Hardwicke's Act.' 
 
 Though the presence of a priest was necessary, the entire cere- 
 mony of a regular marriage was not for a long period celebrated 
 in the body of a church, but a portion was gone through at the 
 porch (ostmm ecdesise) in the presence of the neighbours and the 
 priest. The old kind of dower ad ostium ecdesice originated in 
 this ceremony. The bridegroom was wont to point to his lands, 
 doubtless often visible from the porch, and called — after " affiance 
 and troth plighted between his bride and himself " — those present 
 to witness that he dowered her of a third of them. The presence 
 of a " mass-priest," who was probably the only man of learning 
 and education in the neighbourhood, was deemed not only neces- 
 sary for the sacerdotal benediction, but very advisable as securing 
 a witness of the contract, and as a pledge for the notoriety and 
 certainty as well as the legality of the transaction.^ During the 
 time of the Commonwealth marriages were frequently celebrated 
 by justices of the peace; these were deemed invalid, and at the 
 Eestoration an Act was passed validating them.' 
 
 The necessity for the intervention of the sacerdotal presence to 
 render marriages in every respect valid and good by no means 
 secured the ends for which it was originally intended ; and the 
 greatest scandals prevailed, and were rendered of easy and 
 frequent occurrence from the very fact. In the lax and reckless 
 times immediately succeeding the rigid proprieties of the Com- 
 monwealth, ecclesiastical discipline suffered equally with all forms 
 of decency and order ; and the members of the Church broke 
 away from the restraints she was powerless to enforce. From 
 this state of affairs sprung the numerous marriages celebrated 
 by the " Fleet " and " hedge " parsons. Profligate, degraded, and 
 abandoned, socially and morally, as these clergymen were, yet 
 they remained in holy orders, and that was enough to make 
 
 1 26 Geo. III. c. 33. See post, p. 19. 
 
 ^ M. Walter, of Bonn, in his Manuel du Droit Ecolesiastique (translated from the 
 German by Koquemont, edit. 1840), s. 293, says the object of the presence of the 
 parochus, or parish minister, is to secure a trustworthy witness of the oimtraot [un 
 document positif sur le caracUre de I'union contractSe) . Sanchez of Cordova, the 
 Jesuit commentator on the decrees of the Council of Trent, expresses the same opinion. 
 ^ 12 Oar. 2, c. 23, confirmed by 13 Gar. 2 (stat. i.), 0. 11. 
 
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CHAP. II.] MAERIAGE LAWS OF ENGLAND. 19 
 
 marriages celebrated by them regular and valid. The clergyman 
 need not have been in the orders of the Church of England.' 
 The ecclesiastical courts recognised as a binding contract that 
 which was entered into by competent parties in the presence of 
 one in holy orders, and would enforce it by their spiritual 
 machinery, and so give it the effect of a valid marriage, though 
 the inception of such contract did not conform to the rules and 
 regulations laid down by the common law of the land.^ The 
 marriage was good, though the parties might be visited with 
 censures and penalties. Further, " it had come to be considered Marriage need 
 as law, that before Lord Hardwicke's Act a marriage might be or/ebraled in" 
 valid though it departed from the rubric in respect of being cele- oturoh. 
 brated in a private house instead of the church ; with no witness 
 other than the clergyman, instead of in the face of the congrega- 
 tion ; with no person to give the bride away ; without banns or 
 a licence ; without the use of a ring ; without the repetition of 
 the whole service ; provided the parties took one another for man 
 and wife by words in the present tense before a priest, and, since 
 the Reformation, a deacon.'" 
 
 Society at this time was so demoralized that there were many Lord Hard- 
 more clandestine than regular marriages ; and matters came to ria^e^Act'^*'^' 
 such a pass that the Legislature deemed it necessary to intervene 1753- 
 and check the abuses ; and not without considerable difficulty 
 and bitter opposition did Lord Hardwicke's measure, " An Act for 
 the better preventing of clandestine marriages " * pass into law. 
 Blackstone styled this Act " an innovation upon our ancient laws 
 and constitution." ' The necessity for the presence of a clergy- 
 man is taken for granted in this Act ; and its only aim and scope 
 was to prevent and discountenance clandestine and improvident 
 marriages. Its chief provisions were : — Mere consensual marri- General scope 
 ages should not be compelled by writ in the ecclesiastical courts the Act. 
 to be celebrated in facie ecdesice.^ All marriages celebrated 
 in any other place than a church or public chapel of the parish 
 in which the parties dwelt, unless by special licence, or without 
 publication of banns, or the ordinary's licence, should be null and 
 void; and the parties celebrating should be liable to fourteen 
 years' transportation.' Marriages were to be celebrated openly 
 
 1 Beau Fielding's Case, Howell's State Trials, vol. xiv. p. 1327. 
 
 ^ Scrimshire v. Scrimsliire, 2 Hag. Con. E. 395. 
 
 ^ Per Willes, J., in Beamish v. Beamish, 9 H. L. Cas. 274. 
 
 ■• 26 Geo. II. c. 33. 
 
 ^ I Cnm. 438. This Act was extended to Ireland by 58 Geo. III. c. 81. It is said 
 that a Bill of aimilar import was prepared for Scotland, but met with such opposition 
 that it never came to anything. There are, however, no records extant of any such 
 Bill ever having been introduced, or even prepared. 
 
 ^ 26 Geo. III. t. 33, s. 13. 
 
 ' Sect. 8. 
 
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20 
 
 HUSBAND AND WIFE. [paat i. 
 
 in church in the presence of at least two witnesses/ after pubh- 
 cation of banns on three consecutive Sundays/ unless dispensed 
 with by special licence,' or upon the Ordinary's licence ; ^ and 
 where the contracting parties were minors, consent of parents or 
 guardians was necessary to the validity of the marriage.' A 
 marriage not had with a licence properly obtained, or banns 
 duly published, or the ceremony solemnised in a church or chapel 
 or celebrated by a person in holy orders, was null and void." 
 The marriages of members of the royal family,' and of Jews and 
 Quakers,' were not affected by this Act. The validity or 
 invalidity of the latter marriages seems to have been purposely 
 left to the operation of the old law; and the balance of 
 authorities seems clearly in favour of their validity even before 
 the passing of this Act. The operation of the Act was confined 
 to England. 
 Some change Marriage, like many other institutions, has been affected by 
 imperatiTO. ^'^^ requirements of modern society. Method, precision, and sym- 
 metry in the ordering of affairs are deemed more necessary in the 
 present day than in olden times ; that which suited former men 
 is insufficient, and a haphazard style of proceeding is becoming 
 repugnant to the present notions of social order. The increase of 
 the population has been a large factor in this change, and the 
 unseemly circumstances connected with clandestine marriages 
 appeared at first but few and isolated instances, which chiefly 
 concerned the parties themselves ; but in time their frequency 
 became a scandal and an injury to the State, and so demanded 
 new legislation to remove the abuses caused by them. For these 
 reasons it is suggested that in 1753 the open proclamation of 
 banns (under ordinary circumstances), and the residence of a 
 statutory period in the parish in which the marriage was to be 
 celebrated, were made compulsory. Before that year flagitious 
 dealings and chicanery were rendered easy by the state of the 
 law. Persons were enabled to contract marriage per verba de 
 prcBsenti, without any witnesses other than the officiating clergy- 
 man, or proof of sanction of proper parties, and became man and 
 wife, though not cohabiting. Instead, an ordained minister of 
 the Church of England in the parish church was now made the 
 necessary responsible and official witness of the consent of the 
 parties, which was to be publicly given. He was also the wit- 
 ness of the regularity of the service, and of the sanction of those 
 interested in the marriage ; he was to be the medium of 
 
 1 26 Geo. III. c. 33, s. 15. - Sect. 1. 
 
 3 Sect. 6. ' Sect. 8. = Sect. n. 
 
 « Sect. 18. 7 Sect. 17. 8 Sect. 18. 
 
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CHAP. II.] MARRIAGE LAWS OF ENGLAND. 21 
 
 publishing the fact of the intended nuptials, and was required 
 to keep a proper and accredited record of the celebration. 
 This Act, though introducing praiseworthy certainty in the Harsh opera- 
 formation of the marriage tie, and reducing the possibility of *^™ "* *''® ■^°'- 
 clandestinity to a minimum, went, as was natural, to the opposite 
 extreme of harshness, and was productive of much hardship and 
 injustice. Nullity was procurable with a terrible facility, and 
 members of non-conforming denominations were compelled to 
 come to the churches of the Establishment if they desired to 
 contract a valid marriage. Illegitimate children, too, were hardly 
 treated, for if, as minors, they desired to marry, they were obliged 
 to go to the Court of Chancery for the appointment of guardians 
 to give the necessary consent, for they had no parents who in the 
 eye of the law could either give their consent or appoint guardians 
 for them. There was no provision regulating marriages contracted 
 out of the country, and persons to avoid the irksome restraints 
 imposed upon them went across the border, and so brought about 
 the scandals of Gretna Green. 
 
 It was, therefore, thought necessary, after a lapse of seventy The Marriage 
 years, to institute fresh legislation, viz., the important Act of ^ ^^_ 
 4 Geo. IV. c. 76 (repealing Lord Hardwicke's Act and 3 Geo. IV. 
 c. 75) ; and this statute, save where it has been altered and modi- 
 fied by subsequent enactments, governs the majority of marriages 
 in England. Its more important provisions are as follows : its chief pro- 
 Clergymen who have duly solemnized marriage, after publication "^*^'°°^- 
 of bannSj between persons both or one of whom shall be under age, 
 without the consent of the proper parties, are to be no longer punish- 
 able unless they have had notice of dissent of such proper parties ; 
 and if such dissent is openly and publicly expressed at the time 
 of publication, the marriage is to be null and void.' Banns are 
 to be republished if the marriage is not celebrated within three 
 months of their publication.^ In the case of unmarried minors, 
 the father, or guardians, or mother (if unmarried), are the proper 
 parties to give consent ; * and if such be tuon compotes mentis, or 
 beyond seas, application for consent must be made to the Lord 
 Chancellor, Ac." Instead of the former penalty of nullity, the 
 punishment for procuring a marriage by licence, or after publica- 
 tion of banns without the consent of proper parties, by one of the 
 parties to the marriage where both or one of them shall be under 
 age, by perjury or fraud, is forfeiture by the guilty party of all 
 advantages of property accruing from such marriage.^ The most 
 
 1 4 Geo. IV. 0. 76, s. 8. 2 Sect. 9. =* Sect. 16. ^ Sect. 17. 
 
 " Sect. 23. For a fuller treatment of forfeiture under this section, see post, 
 chap. vi. p. 89, 
 
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22 
 
 HUSBAND AND WIFE. 
 
 [PAKT I, 
 
 In what cases important alteration effected by this Act is the limiting of void 
 i'a°TOiT'™^'* marriages to those cases in which any person shall knowingly and 
 wilfully intermarry in any other place than a church, &c., wherein 
 banns may be lawfully published, unless by special licence, or 
 shall knowingly and wilfully intermarry without due publication 
 of banns, or a licence obtained from the proper person, or shall 
 knowingly and wilfully consent to or acquiesce in the solemniza- 
 tion of such marriage by any person not being in holy orders.' 
 This Act, like that of Lord Hardwicke, does not extend to the 
 marriages of the royal family,^ or of Quakers, or Jews.' 
 Marriage (Loid This enactment was most useful in its reform, but left un- 
 Act, 1836,6 &7 touched the hardship (and one much complained of) of requiring 
 Wm. IT. c. 85. persons not in communion with the Church of England to have 
 recourse to her churches in order to contract a valid marriage. 
 Thirteen years after its passing, by 6 & 7 Wm. IV., c. 85, this 
 grievance was partially removed ; and for the first time in the 
 history of English law, whether ecclesiastical or civil, the purely 
 temporal and civil element of marriage is recognised.'' Now no 
 longer is the intervention of a priest or parson in holy orders 
 necessary ; now no longer is episcopal licence or publication of 
 banns an essential element ; and now no longer are the parties 
 required to attend the churches of the Establishment to make 
 their unions regular and valid. It is enough if the parties go 
 before the appointed civil officer — the registrar — give the requi- 
 site notices, and procure his licence'^or certificate, and be married 
 before him and two other witnesses either at his ofi&ce, or in pro- 
 perly registered places (except churches and chapels of the Church 
 of England), with or without any form or ceremony.^ The more 
 important provisions of this statute are as follows : Notice of all 
 marriages (except those intended to be solemnized according to 
 the rites of the Church of England after publication of banns or 
 by special or ordinary licence ^) must be given to the superin- 
 tendent registrar of the district in which each party lives, if in 
 more than one.' The registrar may, after the expiration of 
 twenty-one days after the entry of such notice, grant his certifi- 
 cate, and after seven days grant his licence ; ^ and the certificate 
 or licence is to be given to the officiating minister (if any) at the 
 
 Its chief pro 
 visions. 
 
 Begistrar's 
 certificate. 
 
 Licence. 
 
 1 4 Geo. ly. 0. 76, s. 22. 2 Sect. 30. 3 Sect. 31. 
 
 * The details of this statute will be given more fully in chap. vi. 
 
 •' Tlie registration of places of -worship not belonging to the Established Church for 
 solemniaing marriages is provided for by section i8. 
 
 6 6 & 7 Wm. IV. i>. 85, s. II. The consent of the clergy of the Church of England 
 to marry on the registrar's certificate or licence is not obligatory, but optional : IQ& 20 
 Vict. c. 119, =• II. i> j> t , y 
 
 ' Sect. 4. 
 
 >* Sect. 7. One lohole day, by 19 & 20 A^icf. c. 119, o. 9. 
 
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CHAP. II.] MARRIAGE LAWS OF ENGLAND. 23 
 
 time of the solemnization of the marriage.' All marriages not Presence of the 
 celebrated according to the rites of the Church of England, or of q^fredat all' 
 Quakers or Jews, must be celebrated in the presence of a regis- "'1"'*?®^"°'^ 
 trar ; ^ and if the parties intending to be married object to a Churcii of 
 religious service they can be married at the registrar's office.' If of^worsh^), or 
 the certificate or licence has been fraudulently obtained, and mar- jg^^*^"^ °^ 
 riage follows, the guilty persons are visited with the penalties 
 inflicted by 4 Geo. IV. c. ^6, s. 23." 
 
 This statute in its turn has been amended and modified by Marriage Act, 
 19 & 20 Vict. c. 119, but substantially remains the basis of legis- yjgt' Jf 119° 
 lation for civil marriages, and, as concerns English law, is revolu- 
 tionary in its countenance of a marriage not celebrated either in 
 facie ecdesice or in the presence of some duly ordained minister. 
 The exclusive privilege of the Church of England clergy to be 
 the responsible witnesses of marriage is gone for ever , and it is 
 neither logical nor expedient that the presence of a registrar, 
 as an official witness, should be demanded at the marriages of 
 those not in communion with the Church. This anomaly, which 
 is an irksome grievance, should be removed from off the Statute 
 Book.= 
 
 1 6 & 7 Wm. IV. u. 8S, ». 16. 
 ^ Sects. 20, 39. 
 5 Sect, 21. 
 * Sect. 43. 
 
 ^ An attempt was made in the session of 1893 to remove this anomaly, but with no 
 success. 
 
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CHAPTER III. 
 
 THE MARRIAGE LAWS OF SCOTLAND. 
 
 Rbgulae Maeeiagbs : 
 
 Attee dub Pkoclamation op Banns . 
 
 Paetibs Mbmbbrs of the Established Chuech 
 
 Episcopalians . • ... 
 
 Othbe Dissbntbes 
 
 On Peoduction op the Eegisteae's Cbetipicatb 
 Cblbbeatbd bt a Ministbe op Religion othee 
 
 THAT OP THE ESTABLISHED ChUECH . 
 
 Ikebgulae Maeeiagbs : 
 
 Geetna Geben Maeeiagbs 
 
 Sponsalia pee Veeba db Pe^sbnti . 
 
 How Constituted: Vbebally .... 
 In Weiting . 
 
 Sponsalia pbe Veeba db Futueo, Cum Copula 
 
 Habit and Repute 
 
 Penalties on the Conteacting Paetibs 
 
 Penalties on the Witnesses 
 
 Penalties on the Cblebratoe . 
 Deolaeatoe op Maeeiage . . 
 Registeation op Maeeiagbs : 
 
 Rbgulae Maeeiagbs 
 
 lEEEGULAE MAEEIAGES . 
 DlVOECB : 
 
 Adultbey ... .... 
 
 Desbetion, oe Non-adhbeence poe Foue Ybaes 
 Dbpenobs : Condonation, oe Remissio Injuei^b 
 Connivance . . ... 
 
 Collusion . . 
 
 JUEISDICTION op SCOTCH COUETS .... 
 
 25 
 
 25 
 26 
 27 
 27 
 
 28 
 
 30 
 31 
 31 
 
 32 
 
 33 
 35 
 36 
 37 
 37 
 38 
 
 38 
 39 
 
 41 
 41 
 42 
 42 
 42 
 42 
 
 The laws of Scotland affecting marriage differ in a marked degree 
 from those of England. The basis of Scottish jurisprudence is 
 the Roman law ; and the influence of the canon law, in its turn 
 derived from the Roman, has left clear and unmistakable marks 
 upon the social system of Scotland. The marriage law of 
 Christian countries over which the See of Rome had influence, 
 was considerably modified and altered by the decrees of the 
 These decrees obtained and were put in force 
 Trent did not in Ireland, but were never recognised in Scotland. The princi- 
 
 Decrees of the Qouncil of Trent 
 
 Council of 
 
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OHAP. III.] MARRIAGE LAWS OF SCOTLAND. 25 
 
 pies of the canon law have never been altered or modified by obtain in Scot- 
 legislation in Scotland. Thus, these exist there in force and '*'"^' 
 vitality even now. Public opinion, it is true, does not approve of 
 the laxity of their regulation in matrimonial matters, or of the 
 ■opportunities they offer for clandestine, improvident, and secret 
 unions ; yet marriages celebrated in Scotland which are recognised 
 by the canon law are, for the most part, good and valid. Thus, 
 side by side with the strict requirements for regular marriages — 
 more strict than those of English law — exists the facile code of 
 the irregular or inorderly marriages. 
 
 This chapter will be devoted to the essential preliminaries of a 
 valid marriage, whether regular or irregular, and the order of 
 ^scussion of subjects is as follows : — 
 
 Section i. Regular marriages. 
 
 „ 2. Irregular marriages. 
 
 ,, 3. Declarator of marriage. 
 
 ,, 4. Registration of marriages, regular and irregular. 
 
 5. Divorce.' 
 
 Sect, i . 
 Regular or PiMic Marriages. 
 
 Regular or public marriages may be celebrated in a church, or Eegular or 
 private house, on any day of the week, and at any hour of the rfages.™*'^" 
 day; [i] after due proclamation of banns; [2] or on production 
 •of the registrar's certificate, under 41 & 42 Vict. c. 43 ; [3] by 
 a minister of religion. 
 
 (i) Down to the year 1878, when the Act of 41 & 42 Vict. After pro- 
 c. 43,- was passed, the publication of banns in the parish ^^^s.'™ ° 
 church of at least one of the parties was absolutely necessary to 
 the contracting of a regular marriage, whether by the minister of 
 the Established Church, to whom the solemnisation of the marriage 
 was originally confined, or by the ministers of the other denomi- 
 nations, against whom the rigour and severity of the laws were 
 gradually relaxed. The requisite formalities to be gone through 
 in the proclaiming of banns are as follows : — 
 
 a. Where the parties are memhers of the EstaUished Church "/^*/'„{ j™^™' 
 
 Scotland. Established 
 
 The proclamation is made by leaving with the session-clerk of gootiand. 
 
 ' The subject of divorce will be treated very shortly on those points only in which 
 the Scotch law mostly differs from the English. 
 
 2 There is good reason for believing that this Act has been somewhat unfavourably 
 received by the chief religious denominations ; they hold it to be an intrusion of the 
 civil power on purely spiritual and ecclesiastical matters. 
 
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26 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Banus: resi- 
 dence of six 
 weeks neces- 
 sary. 
 
 Parties mem- 
 bers of the 
 Episcopalian 
 Church. 
 
 Banns to be 
 published both 
 in Episcopalian 
 and parish 
 churches. 
 
 the parish or parishes where each of the parties intending to 
 marry has his or her domicil, their names and descriptions. The 
 session-clerk cannot proclaim banns until the parties have 
 resided six weeks in the parish ; otherwise they must be pro- 
 claimed in the church of the parish where their ordinary residence 
 is. If the session-clerk does not know the parties — does not 
 know that they have been resident six weeks in his parish — or 
 that they are unmarried, and not within the forbidden degrees, 
 they must bring him a certificate signed by two householders, or 
 by an elder, certifying these facts.' The proclamation is not 
 made by the session-clerk, but by the precentor, who reads over 
 the necessary description of the parties with an audible voice 
 in the parish church, while the congregation are assembled for 
 public worship, and immediately before divine service.^ The 
 proclamation should properly take place on three successive 
 Sundays; bat the general practice, in fact, is to make all the 
 three publications on the same Sunday, on payment of fees con- 
 siderably larger than those which would be payable if the more 
 correct practice were observed.' Though'* the precentor actually 
 reads the proclamation, it is the minister who in law is regarded 
 as making it ; and the ministers of the quoad sacra parishes, or 
 new ecclesiastical districts, are to proclaim the banns of those 
 residing in such districts.'' 
 
 5. Where the parties are memhers of the Episcopalian Ghureh. 
 
 The banns of Episcopalians must be published three times 
 both in the churches attended by them as worshippers, and also 
 in the churches of the Establishment to which they belong as 
 parishioners. The privilege of having their banns published in 
 their own churches was granted them by the statute lO Anne 
 c. 7, s. 6, which further enacted that " the ministers of the parish 
 churches are hereby obliged to publish the said banns ; and in 
 
 \ Fraser, _H. &_W. 285. By Act 8 of Assembly, 1784, "It is resolved that no 
 session-clerk in this Church proclaim any persons in order to marriage, until he give 
 intimation to the minister of the parish, in a -writing dated and subscribed by him, of 
 the marriages, designations, and places of residence of the parties to be proclaimed, and 
 obtain the said minister's leave to make the said proclamations, with certification tbat 
 if any certificate of proclamation of banns be given, without observing the above order, 
 the said certificate shall be held as a false certificate." Laws of the Church of Scotland, 
 Acts of Assembly, p. 190. 
 _ ^ The proclamation runs : "There is a purpose of marriage between A. B., residing 
 
 ™ > and C. I)., residing in , of which proclamation is hereby made for the first, 
 
 [second, or third] time. " 
 
 3 Eraser, H. & W. 284 ; also Eep. Com. Mar. Laws, p. xvii. 
 By 7 & 8 Vict. c. 44, the Court of Teinds has the power to carve out of original 
 parishes certam districts for ecclesiastical and not secular purposes, in order to facilitate 
 public worship and the general religious requirements in parishes too large and populous 
 to be conveniently worked by the original staff of workers. These new parishes are 
 called _ quoad sacra," and for ecclesiastical purposes are endowed with the like rights 
 and privileges as the original parishes out of which they were formed ; so that parties 
 residing in such quoad sacra parishes must now have their banns published at the parish 
 church of such ecclesiastical district." Hutton v. Harper, i App. Cas. 464. 
 
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CHAP, in.] MAERIAGE LAWS OF SCOTLAND. 27 
 
 case of neglect or refusal it shall be sufficient to puhlish the said 
 hanns in any Episcopal congregation alone.''' 
 
 C. Other dissenters. Banns of other 
 
 Other dissenters (including Quakers and Jews) cannot have pX^^hed in 
 their banns published in their own churches or chapels, but only parish church 
 in the Established Church of their parish. Banns of par- 
 
 When both or either of the parties, domiciled in Scotland, ^;''^^^°3^^'* 
 contract or contracts a marriage celebrated in England or Ire- marrying in 
 
 . . ° England or 
 
 land, their banns must be proclaimed in the parish church of Ireland, to be 
 their domicil, to avoid the, penalties inflicted by the Act of 1661, parish Xurch. 
 c. 34. 
 
 After proclamation has been duly made, the session-clerk issues Certificate of 
 a certificate testifying the fact, and on its production the minister P™" ""^^ °°' 
 is bound to celebrate the marriage.^ If he refuse, except for 
 valid reason, to celebrate the marriage, he may be compelled by 
 the Court of Session to do so. 
 
 (2) By an Act passed in 1878, called the Marriage Notice On production 
 (Scotland) Act,^ a considerable modification in the ideas of tj^r's^o'ertifi- 
 marriage prevalent in Scotland has been introduced. For the first ^**'®- 
 time it is acknowledged by legislative enactment that it is no 
 longer necessary to have recourse to the Established Church of 
 the country as a witness to the desire of the contracting parties 
 to take each other for man and wife in regular marriage, but that 
 a secular official is able to supply that necessary imprimatur of 
 approval which was long denied to ministers of congregations of 
 religious bodies other than those of the Established Church. The 
 new law has been regarded as a breaking down of one of the 
 barriers between regular and inorderly marriages. 
 
 The following are the chief provisions of the Act : — 
 
 Ministers, clergymen, or priests in Scotland may celebrate clergymen 
 marriage after the proper and prescribed publication of an marriage on 
 intention of the parties to marry, and upon production of a ^"^ertfficate"^ 
 proper certificate or certificates ; and such marriages shall be 
 deemed to be as regular as if celebrated after the usual proclama- 
 tion of banns.^ Quakers and Jews are not afiected by this Act, Quakers and 
 provided that both parties belong to the same persuasion, are affected, 
 married according to the usages of their communion, and notice 
 to the registrar of an intention to marry shall have been given, 
 and his certificate issued.'' 
 
 A registrar's certificate of the publication of a notice of mar- Begistrar's 
 riage shall have the same force and effect as a session-clerk's equal force as 
 certificate of proclamation of banns, and its production will *^* "J^^j^^"^" 
 
 1 17 & 18 Vict. c. 80, B. 46. 
 
 2 41 & 42 Vict. c. 43. It came into operation on January i, 1879. 
 
 3 Sect. 4. ^ Sect. 5. 
 
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HUSBAND AND WIFE. 
 
 [PAKT 
 
 Kirk minster 
 not bound to 
 marry on 
 certificate. 
 Certificate 
 good for three 
 months only. 
 
 By a minister 
 of religion 
 other than 
 that of the 
 Established 
 Church. 
 10 Anne c. 7, 
 and 4 & 5 
 Wm. IV. c. 28 
 
 10 Anne c. 7. 
 
 4 & 5 Wm. IV. 
 c. 28, repealed 
 the old penal 
 statutes. 
 
 Minister must 
 marry on the 
 production of 
 certificate of 
 proclamation 
 of banns ; 
 
 authorize a minister, clergyman, or priest in Scotland to celebrate 
 a regular marriage, whether both or only one of the parties have 
 or has procured the registrar's certificate. No minister of the 
 Church of Scotland shall be obliged to celebrate a marriage not 
 preceded by the due proclamation of banns.' 
 
 If the marriage do not take place within three months from 
 the date of the registrar's certificate, the certificate will be void^ 
 Persons desirous of contracting a regular marriage without the 
 proclamation of banns, shall, if living in difierent parishes or 
 districts, each give notice of the intended marriage to the registrar 
 of the parish or district in which he or she shall have resided for 
 not less than fifteen days before the giving of such notice ; and 
 such notice is to be entered in the registrar's " Marriage Notice 
 Book." After the expiration of seven days from the receipt of 
 such notice of the intended marriage, and in the event of no 
 objection to the marriage appearing on the face of the notice, the 
 registrar shall issue a certificate of the due publication of the 
 notice.^ 
 
 (3) For a long period of time the ministers of the Established 
 Church of Scotland were the only persons who could celebrate 
 marriage without running the risk of being punished. Before 
 the statutes lo Anne c. 7, and 4 & 5 Wm. IV. c. 28, the 
 solemnization of marriage by any person other than a minister of 
 the Established Church of Scotland was prohibited under severe 
 penalties, and deemed clandestine and irregular. The Act of 
 Queen Anne was passed in favour of the Protestant Episcopalian 
 communion only, whose ministers, duly ordained by Protestant 
 bishops, were thereby permitted to celebrate marriage between 
 parties whose banns should be published on three several Sundays 
 in the Episcopal congregations attended by both of them, as well 
 as in the parochial churches. By 4 & 5 Wm. IV. c. 28, the 
 penalties imposed by the older statutes upon the celebration 
 of marriages in Scotland by Eoman Catholic priests, or other 
 ministers not belonging to the Established Church of Scotland, 
 were repealed ; and it was declared lawful for all persons 
 in Scotland, " after the proclamation of banns there," to be 
 married by any priests or ministers not of the Established 
 Church.* 
 
 The minister, clergyman, or priest must marry the parties 
 coming before him with that intent, provided they produce a 
 certificate of the proper proclamation of their banns from the 
 
 ^ Sects. 6 and 11. 2 gg(,j_ jj^ 
 
 ^ Sects. 7, 8, and 9. For the lodging of objections, and on what gronnds,'see tbe 
 Act, which is based on the English Registration Acts. 
 ^ Rep. Com. Mar. Laws. p. xvii. 
 
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CHAP. III.] MARRIAGE LAWS OF SCOTLAND. 29 
 
 session-clerk of the parish or parishes in which they reside. He 
 may also, but can not be compelled, marry those who produce to may do so on 
 him a registrar's certificate of the due publication of the notice of ragiLtea™ °* 
 marriage under the provisions of 41 & 42 Vict. c. 43. The °®''*''*°**®- 
 publication of banns according to the Scotch method of a party 
 resident in Scotland but to be married in England renders the 
 marriage in England valid, if not otherwise invalid.' 
 
 The presence of a clergyman is necessary to a regular marriage, Mamage need 
 but he need not celebrate it within the walls of a sacred building, tratedina" 
 or at any particular place or time. Indeed, it may be said to oiiurch, &o. 
 be the practice among the members of the Scotch Church not to 
 be married in church. The presence of any lawfully appointed 
 minister (and proper officer in the case of Quakers and Jews) 
 seems to entitle such marriages to the character of being cele- 
 brated in facie ecclesicc. The Episcopalians and Eoman Catholics 
 celebrate, as a rule, their marriages openly in their own churches. 
 
 Section 2. 
 
 Irregular Marriages. 
 
 Irregular, clandestine, or inorderly marriages are those which Clandestine 
 are celebrated or entered into without due proclamation of banns, "aiTiages. ^ 
 or the registrar's certificate. The fact that these marriages are 
 not only capable of being contracted, but are to all intents and 
 purposes good and valid, is a blot on Scottish jurisprudence, 
 the removal of which would be conducive to the best interests of 
 society. There are three classes of irregular marriages, namely — 
 i. Sponsalia per verba de prcesenti. 
 
 ii, Sponsalia per veria de futuro cum coptdd. I 
 
 iii. Marriage hy Habit and Eeptder 
 
 Before passing on to discuss these classes of marriage, it may -Dispute as to 
 be of advantage to mention that certain learned writers strenuously saiia oonsti- 
 hold that these sponsalia do not by the law of Scotland constitute ^*^ji°^P^^*^ 
 complete and very marriage. Thus it has been held by some 
 Scotch writers, notably the late Lord Eraser, that the law of 
 Scotland never acknowledged as valid marriages the union of 
 parties as described by Lord Stowell in Dalrymple v. Dalrymple^ 
 
 ^ 49 & 50 Vict. c. 3, a. I. 
 
 ^ Habit and repute do not really constitute marriage ; they only afford a strong pre- 
 sumption and evidence of a marriage having taken place between the parties. 
 
 ^ 2 Hag. Com. Eep. 54, 64, 65. Lord Eraser contends that the judgment of Lord 
 Stowell, that the contract per wrJa rfe^rasento' between Dalrymple and Miss Gordon 
 was a valid and perfect marriage, was a mere dictum, and not necessary to the decision 
 of the case ; for the engagement between them was clearly a pre-contract, which entitled 
 her to insist on a decree ordaining solemnization, and so annulling the second marriage; 
 and such decree would have had the effect of making the inorderly and clandestine 
 engagement a valid marriage. 
 
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30 HUSBAND AND WIPE. [part i. 
 
 which case was followed by the House of Lords in MacAdam v. 
 WaUcer ; ^ and that the only clandestine marriages held to be 
 valid were those celebrated by a priest, in other words, the presence 
 of a priest was always necessary to constitute verum matrimoniun,,^ 
 and that mere private interchange of consent was a thing 
 unknown to the law or practice of the Scotch people.' His 
 lordship was also of opinion that, even assuming that the 
 Eoman canon law prevailing in Continental Europe acknowledged 
 such marriages (which he disputes), such canon law never really 
 prevailed in Scotland; but that the ecclesiastical law of the 
 country was its Cousistorial law, which law in its turn was 
 derived from the decisions of the Provincial Councils. Whether 
 the arguments and accuracy of statement are on his side or not, 
 it is not within the province of this treatise to determine. The 
 law as laid down by competent authority must be followed 
 and treated as binding ; and since the decisions of Dalrymple v. 
 Balrymple * and MacAdam v. Walker,^ it is clear that the law of 
 Scotland now recognizes as valid (though irregular) marriages per 
 verba de prcesenti and per verba de ftituro cum copidd. 
 Gretna Green The Opportunity for effecting valid marriages in Scotland 
 mamages. without the necessary requirements and preliminaries essential 
 by the law of England had some considerable effect and im- 
 portance. Many ardent couples, disdainful of the restraints of 
 their home law, many designing persons desirous of possessing 
 the fortunes of heiresses, many who could never have got the 
 consent of parents, or guardians (whether the Court of Chancery 
 or private individuals), hurried northward over the border to 
 celebrate their rapid nuptials, which needed but the openly 
 expressed consent of the parties to take each other as man and 
 wife in the presence of a witness. It was this facility for speedy 
 and clandestine marriage that rendered Gretna Green so notorious.' 
 
 ^ I Dow, Eep. H. L. 148. 
 
 2 See Reg. v. Millis, 10 CI. & F. 534. 
 
 ^ Lord Fraser (Hueb. & W., p. 232) gives a list of what were considered clandestine 
 or inorderly marriages from the date of the Reformation (1560) down to the Dalrymple 
 decision : — 
 
 a. Marriage celebrated by an Episcopalian minister, when Presbytery was estab- 
 
 lished. 
 
 b. Marriage celebrated by a Preshyteriau minister, when Episcopacy was estab- 
 
 lished. 
 
 c. Marriage celebrated by a Popish priest. 
 
 d. Mai-riage celebrated without proclamation of banns, 
 c. Marriage celebrated on any other day than Sunday. 
 /. Marriage not celebrated in church. 
 
 g. Marriage celebrated by Scotch people elsewhere than in Scotland, tbey having 
 
 ^one abroad merely to marry. 
 Jt, Marriage without consent of parents. 
 I 2 Hag. Con. Eep. 54. s j jjow, Eep. H. L. 148. 
 
 It IS said that many thousands of marriages were wont to be celebrated in the 
 course of a year. 
 
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GHAP. m.] MARRIAGE LAWS OF SCOTLAND. 31 
 
 This small village, situated a short way over the border, on the 
 
 main road from the south, afforded a likely spot where those who 
 
 came to avoid the fetters of their own laws might, in the presence 
 
 ofthe well-known blacksmith or others, repeat a few simple words, 
 
 and thereby contract a valid marriage, and from which they might 
 
 return home with ease.' This state of affairs was altogether 
 
 altered, and the matrimonial trade of the blacksmith ^ destroyed, put an end to 
 
 by Lord Brougham's short but important Act of 1 8 5 6,' which Brongham s 
 
 required for a valid marriage in Scotland a residence of at least ^'^^' ^^s^- 
 
 twenty-one days in that country preceding the marriage.^ 
 
 i. Sponsalia per mrha de prcesenti : spomaita per 
 
 These are a contract in which the parties mutually express their 
 
 verba de prce- 
 senti. 
 
 intention in words of present time to take each other as man and 
 wife. This mutual consent may be expressly declared : 
 
 a. Before a clergyman without banns, or before a layman. Before a oier- 
 
 i. Before a magistrate. The parties exchange their matri- banns ; 
 monial consent before the magistrate, who grants them tJ^te™*^'^' 
 his certificate of the fact. The magistrate is not liable 
 for any penalties so long as he does not give the pro- 
 ceeding a religious character ; but not so the parties, Conviotionand 
 who, therefore, are wont to go before a justice and get ^^riage!°° ° 
 themselves fined a nominal sum (the fine being recorded), 
 and so preserve evidence of their marriage." 
 c. It may also be declared in the presence of witnesses ; or 
 by private declarations ; or by writings for the purpose 
 of expressing consent, or, in point of fact, disclosing such 
 consent. 
 A marriage may be constituted, according to the law of How contract 
 Scotland, by declarations made by the man and the woman that 
 they presently do take each other for husband and wife. No 
 sacerdotal benediction is required to make this a valid marriage. 
 The declarations may be emitted on any day, at any time, and 
 without the presence of witnesses. Such a marriage is as effectual 
 to all intents and purposes as a public marriage solemnized in 
 
 ^ The validity of these marriages has been upheld in a petition under the Legitimacy 
 Declaration Act, 1857, Gardner v. Gardner, 60 L. T. s. 39. 
 
 2 The blacksmith did not act in the capacity of celebrator, but only witness of the 
 marriage. 
 
 ^ 19 & 20 Vict. 0. 96. See post, p. 38. 
 
 * By the law of Scotland, these must be clear days preceding the marriage ; 
 accordingly, where two persons domiciled in England arrived in Scotland aboat 4 a.m. 
 of July 1st, 1870, remained there until the 21st of the same month, and between 
 II and 12 A.M. of that day were man-ied by declaration before a registrar, the marriage 
 was held invalid, as they had not lived in Scotland for twenty-one days next preceding 
 the marriage. Lawford v. Davies, 4 P. D. 61. 
 
 5 Since 19 & 20 Vict. c. 96, sect. 3, there can be no conviction for, or registration 
 of, an irregular marriage without proof other than the acknowledgment of the parties 
 that one of them had resided in Scotland for twenty-one days. See post, Penalties on 
 the Parties, p. 36 ; and Declarator of Marriage, p. 38. 
 
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32 HUSBAND AND WIFE. [part i. 
 
 facie ecdesicB. The children of it would be legitimate, and the 
 Effects of this parties to it would have all the rights in the property of each 
 contract"^ Other given by the law of Scotland to husband and wife.' 
 Lord Lyndhurst, in the case of The Queen v. Millis,^ thus sums 
 up the result of this contract : — " Such a contract (sponsalia per 
 verba de prcesenti) entered into between a man and a woman was 
 indissoluble. The parties could not by mutual consent release 
 each other from the obligation. Either party might, by a suit in 
 the spiritual court, compel the other to solemnize the marriage in 
 facie ecclesicB. It was so much a marriage that if they cohabited 
 together before solemnization they could not be proceeded against 
 for fornication, but merely for a contempt. If either of them co- 
 habited with another person the parties might be proceeded 
 against for adultery. The contract was considered to be of the 
 essence of matrimony, and was therefore, and by reason of its 
 indissoluble nature, styled in the ecclesiastical law verum matri- 
 Dionium, and sometimes ipsuni matrimonium. Another and most 
 important effect of such a contract was that if either of the parties 
 afterwards married with another person, solemnizing the same in 
 facie ecclesice, such marriage might be set aside even after cohabi- 
 tation and birth of children, and the parties compelled to solemnize 
 the first marriage in facie ecclesice. Such were the effects of a 
 Consent must marriage per verba de prcesenti." The consent must be mutual, 
 abedutr *" ^"^^ to ^ present marriage,^ and must not be qualified by a 
 condition of something further to be done, or to a future time, 
 otherwise the contract is nothing but sponsalia de futuro.^ The 
 consent may be given either verbally or in writing. 
 Verbally. Verbally. — The parties must in clear, unambiguous language 
 
 declare themselves to be man and wife, though no particular form 
 of words is necessary. The words, " This is my lawful married 
 wife, and the children by her are my lawful children " (the woman 
 curtsying in token of assent), have been held sufficient.'^ Such 
 acknowledgment will not have the effect of marriage if given in 
 suspicious circumstances." The consent or acknowledgment may 
 be proved by witnesses.' 
 In writing. In writing. — When the acknowledgment or declaration is in 
 
 writing the language must be clear, and accepted by the other 
 party." A letter containing these words, " I hereby declare you 
 
 \ Fraser, H. & W., 294. 2 10 CI. & F. 534, 832. 
 
 " Anderson v. FuUerton, Hume, .Decisions, 365. 
 
 ^ Stewart v. Menzies, 2 Rob. App. 547. 
 _ i5 MacAdam y. Walker, i Dow, Eep. H. L. 148. In this case the man shot himself 
 immediately alter he had spoken the words. 
 
 " Farrel v. Barrie and others, i Feb. 1828, 6 S. 472. 
 
 '' MacAdam v. Walker, {ubi sup.). 
 
 8 Hamilton t. Hamilton, i BelPs Appeals, 736. 
 
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CHAP. III.] MARRIAGE LAWS OF SCOTLAND. 33 
 
 ta be my lawful wife," was held to constitute a marriage.' Such 
 acknowledgment and declaration of marriage will be disregarded 
 if the conduct of the parties shows that they could not have meant 
 what the document says." That, the writing is that of the party 
 pursued must be proved ; but after proof, the onus of showing 
 that it does not mean what it says lies on the defender. 
 Marriage may also be proved between the parties by their con- Marriage may 
 duct towards each other, and the first consent need not be proved ; the^oonduc'/of 
 it is sufficient if the facts of the case are such as to lead to ^^^ parties. 
 satisfactory evidence of such a contract having taken place ; the 
 acknowledgment of the parties, their conduct towards each other, 
 and the repute consequent upon it, may be sufficient to prove a 
 marriage.^ Whether marriage can be contracted per verba dc 
 prcesenti, in a letter sent through the post, is not yet a decided 
 point ; but Lord Fraser was of opinion that the authorities in the 
 law of Scotland are against such a contention.'' 
 
 ii. Sponsalia per verba de fxduro cum, copuld. 
 
 A mere promise to marry does not constitute marriage in Scot- a mere pio- 
 land, any more than a similar promise would in England. But unotmarriagl. 
 under certain circumstances, a promise to marry, followed by copuia Dcces- 
 copula, or carnal intercourse, though not very marriage itself, yet 
 constitutes a pre-contract, the fulfilment of which the woman can 
 enforce whUe both the promiser and herself are alive (but not 
 after the man's death) so as to obtain a decree of declarator of 
 marriage against him." 
 
 Lord Stowell, in his celebrated judgment in the case of Effects of 
 Dalrymple v. Balrymyle,^ thus sams up the effects of this species f°rb^"'ufuturo 
 of contract : — " In the promise or sponsalia de futuro, nothing was "^^^ copula. 
 presumed to be complete or consummated either in substance or Difference be- 
 in ceremony ; mutual consent would release the parties from their p7ondse,'an"^ 
 engagements, and one party, without the consent of the other, 
 might contract a valid marriage regularly or irregularly with 
 another person ; but if the parties who had exchanged the the promise 
 promise had carnal intercourse with each other, the efiect of "" 
 that carnal intercourse was to interpose a presumption of 
 present consent at the time of the intercourse, and to convert 
 the engagement into an irregular marriage, and to produce 
 all the consequences attributable to that species of matrimonial 
 connection." 
 
 1 Bichardaon v. Irving, flume, Decisions, 361 (1765). See also Dahymple v. 
 Dalrymph, 2 Hag. Con. Eep. 54. 
 
 ^ Anderson v. Gill, 3 Macq. 180. 
 
 ' Oraigie v. Hoggan, MacLean & Rob. App. 965. 
 
 * H. & W. 315. 
 
 5 H. & W. 322. 
 , ^ 2 Hag. Con. Rep. 54, 65. 
 
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34 HUSBAND AND WIEE. [part i, 
 
 The following are some leading principles dealing with this 
 pre-contract, tafcen from Lord Eraser's work : ' 
 Action for de- (1) After sponsolia de futihro cum copitld are entered into, an 
 adherencT'^ action for declarator of marriage and adherence mast be brought 
 f"^* u! u .1, by the woman.' 
 
 brought by the •> . 7 ^ • , t i , 
 
 woman. (2) The pre-contract 01 promise cum copula is not dissolvable 
 
 ^Trto refuse ** *^® Consent of the parties, and the judge who tries the action 
 the decree and jjjay refuse to make a decree, but may dissolve the contract. A 
 contract. ground for dissolution is the incontinence of the woman after the 
 
 promise and copula with the defender.^ 
 
 Effect of death (3) Where one of the parties dies before decree or litis- 
 
 before decree, contestation, an action of declarator of marriage is incompetent, 
 
 and the survivor and the issue are not entitled to claim the civil 
 
 rights flowing from a lawful marriage. In particular, the woman 
 
 is not entitled to terce ov jus relictce, nor the man to curtesy, and 
 
 Action for de- the children are not legitimate.^ In order that the full effect of 
 
 marriageVust ^ Valid marriage should be given to this pre-contract, an action 
 
 Pu ^,^?"5''' '"t for a decree of declarator must be commenced bv the woman in 
 
 the hfetime of ■' 
 
 both parties, the lifetime of herself and the man with whom she has entered 
 into the contract ; though it does not appear necessary that both 
 parties shall be alive at the time of the decree, or that the decree 
 itself shall be pronounced if the woman has used due diligence in 
 enforcing her rights.* 
 Two promises (4) It would not Constitute bigamy so as to be punishable 
 tw™ different under the criminal law of Scotland, if a man promised marriage 
 h\^^T°^ and followed it up by copula, and thereafter again promised mar- 
 riage to another, which he also followed up by copula.^ 
 
 The promise in these sponsalia must be mutual, and it must 
 Proof of CO- be clearly proved that the copula was permitted by the woman on 
 SedTy t^e faith of the promise of the man to make her his wife ; accord- 
 fTithTfaVo- ^^Sh' tlie period of time that elapses between the promise and 
 mise of mar- the copula and the behaviour of the woman subsequent to the 
 
 naere. . , „ ^ 
 
 promise are relevant facts to be inquired into. This is not a 
 presumption /Mm et dejure, but may be rebutted, and proof to 
 the contrary is not excluded.' The proof of such promise must 
 be in writing under the hand of the defender, or his confession 
 
 ^3^\ is due to say that some of the above principles have not been judicially 
 decided and confirmed as undisputed law ; and there are many who hold the contrary 
 dootnne that promise cum copnld constitutes "very marriage" without more. The 
 balance of opinion and authority seems to favour Lord Fraser's views 
 
 ^ Fraser, H. & W. 331. 
 
 ^ Ibid. 342. 
 
 ^ Ibid. 344. 
 
 5 Ibid. 348. Wauchope v. Sandilandis, 3 Mar. 1607, MSS. Reo. Com. Court, 
 
 vol. XXXVll. 
 " Ibid. 357. 
 ' Morrison v. Dobson, 8 Court Sees. Cas., 3rd series, 347. 
 
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 nage, 
 
CHAP. III.] MAERIAGE LAWS OF SCOTLAND. 35 
 
 upon oath ; and a mere promise to marry given in the presence 
 of witnesses could not be proved by their testimony so as 
 to constitute the subsequent copula a marriage.' It is not 
 necessary that the promise should be in writing if there be an 
 acknowledgment in writing of the fact of the promise forthcom- 
 ing.^ The copula, on the other hand, may be proved by parol 
 evidence. 
 
 The promise given and the intercourse following upon it must Promise and 
 take place in Scotland ; and on this point Lord Chelmsford in tX piSe '4 ■ 
 Yelverton v. Longworth ^ said : " As this description of marriage Scotland. 
 is peculiar to Scotland, it is obvious that everything which is 
 essential to the contract, viz., both the promise and the copula 
 must have taken place there, and must be distinctly proved, either 
 directly or by written acknowledgment, to have each of them this 
 local requisite." 
 
 iii. Marriage iy Habit and Bepute. 
 
 Some authorities have held that marriage by " habit ' and Man-iage by 
 repute " is a separate form of marriage, that is to say, marriage is Repute" 
 created by habit and repute. Habit and repute do not, as a Habit and re- 
 matter of fact, constitute marriage, but serve only as evidence of!*ratherXan 
 and presumption of a marriage having been celebrated between manage itself . 
 parties competent to enter into it.* This presumption is not 
 confined to Scotland, but it is acted upon in England, America, 
 and nearly all other countries, with the notable exception of 
 Prance.^ 
 
 In Scotland the presumption rests upon the statute passed in Act of 1503, c. 
 James IV. 's reign for the protection of widows against allegations ''''■ 
 of interested parties that they were not the lawful wives of their 
 
 ' See, however, Sawers v. Forrest, cited in Fraser, H. & W. 377. In a proceeding 
 taken to establish on this ground (promise cum copuld), the defender may be called 
 upon to confess or deny the promise on oath if he has not, in the meantime, contracted 
 mamage with any person other than the pursuer. But he cannot be put to his oath for 
 such a purpose when the effect would be to invalidate another subsequent marriage. lu 
 such a case writings must be resorted to, and if the promise is found by them, and the 
 subsequent iutercourse is made out, the latter marriage is invalidated. Eep. Com. Mar. 
 Laws, p. 19. 
 
 ^ Yelverton v. Longworth, 4 Macq. H. L. Cas. 745. 
 
 3 4 Macq. H. L. Gas. 879. 
 
 ' Habit is equivalent to "cohabitation." 
 
 ' De Thoren v. The Attorney- General, i App. Cas. 686. This was a very strong 
 case ; the parties were married in Scotland at a time when a legal impediment to their 
 marriage existed, but of which they were then ignorant. On the impediment being 
 removed, and believing themselves to be validly married, they lived together continu- 
 ously for years as husband and wife, and were regarded as such by all who knew them. 
 The marriage was held valid, as it was to be inferred that the matrimonial consent was 
 interchanged as soon as the parties were enabled by the removal of the impediment to 
 enter into the contract. Such a marriage would not, however, be upheld in England. 
 See also the BreadaXbane Peerage Case, 4 Macq. H. L. Cas. 711. 
 
 " The Code Civil (Art. 194) requires the production of an e.\tract from the register 
 of the act of celebration, though by Art. 197 it allows a relaxation of this rule in favour 
 of children under certain circumstances. 
 
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36 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Matrimonial 
 consent must 
 be clearly 
 proved. 
 
 Matrimonial 
 cohabitation 
 must be open 
 and public. 
 
 Eepute must 
 be general, not 
 singular 
 opinion. 
 
 Penalties in- 
 flicted for 
 irregular mar^ 
 riages. 
 
 Penalties on 
 the contract- 
 ing parties. 
 
 deceased husbands.' As the marriage can only exist as the 
 resHlt of mutual agreement, the facts relied on must be such as 
 to lead to the inference that the matrimonial consent was inter- 
 changed.' Mere cohabitation is not enough ; there must be 
 repute as well ; and both together will not suffice unless coupled 
 with matrimonial cohabitation, that is, among neighbours and 
 friends, who from the nature of the behaviour of the parties 
 might infer that they were man and wife. If the repute or 
 opinion preponderate against the connection of the parties being 
 marriage, or even be equally divided, marriage is not established, 
 for such repute is held to be no repute at all ; ^ so also the repute 
 must be constant, uniform, and unvarying. Where the connec- 
 tion between the parties is at first illicit {e.g., living in adultery), 
 but afterwards, from the removal of impediments, beconaes 
 capable of being lawful, those who challenge the marriage have 
 the onus of proving that the connection remained illicit cast upon 
 them, for their subsequent cohabitation and reputation as man and 
 wife afford strong evidence of a lawful and formal matrimonial 
 tie having been formed between them/ 
 
 Irregular marriages, while held good and valid, yet expose the 
 contracting parties, the witnesses, and the celebrator, to pains 
 and penalties.' In former days these penalties were severe and 
 stringent, and expressive of the disfavour with which these mar- 
 riages were regarded by the Church. 
 
 By the Act of 1661, c. 34, the contractors of an irregular 
 marriage with a religious ceremony were liable to imprisonment 
 for three months, and to heavy fines, varying -vi^ith the quality 
 and degree of the offenders, and in some instances corporal 
 
 ' 1503, c. 77, Acts of the Parliament of Scotland, vol. ii. p. 243. 
 
 2 Campbell v. Campbell, L. E. i Sc. App. 182, 5 Court Sess. Gas., 3rd series, 115. 
 In this case Lord Westbury (p. 211) said of it : "Perhaps it may not be etrictly correct 
 to say that it (cohabitation with habit and repute) is a mode of contracting marriage. 
 It is rather a mode of making manifest to the world that tacit consent which the law 
 will infer to have been already interchanged. If I were to express what I collect from 
 the different opinions on the subject, I should rather be inclined to express the rule in 
 the following language : that cohabitation as husband and wife is a manifestation of 
 the parties having consented to contract that relation inter se. It is a holding forth to 
 the world by the manner of daily life, by conduct, demeanour, and habit, that the man 
 and woman who live together have agreed to take each other in marriage, and to stand 
 in the mutual relation of husband and wifo ; and when credit is given by those among 
 whom they live, by their relatives, neighbours, friends, and acquaintances, to these 
 representations and this continued conduct, then habit and repute arise and attend 
 upon cohabitation. . . . Probably, therefore, in the correct expression of the law, it 
 would be more proper to say that cohabitation with habit and repute is » mode of 
 proving the fact of marriage rather than a mode of contracting marriage." 
 
 ^ Cunningham v. Cunningham, 2 Dow, Eep. H. L. 482. 
 
 ^ Campbell v. Campbell (uhi sup.). In this case Cunningham v. Cunningham (vii 
 sup.) and Lapsley v. Orierson, I H. L. Cas. 498, were commented upon. 
 
 ^ These penalties are seldom exacted, though they are occasionally enforced against 
 trafficking priests, and persons assuming a clerical character. 
 
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CHAP. III.] MAREIAGE LAWS OF SCOTLAND. 37 
 
 punishment was added.^ "Where there has been no religious 
 ceremony no prosecution can be maintained under the above- 
 mentioned statute. 
 
 The witnesses to an irregular marriage celebrated with a On the wit- 
 religious ceremony were liable to smaller fines than the parties, but '^®^^®^- 
 if they could not pay them corporal punishment might be inflicted." 
 If a case should occur for prosecution under the statute, it is not 
 probable that corporal punishment would be inflicted, though the 
 fines might be enforced. 
 
 Under the Act of 1661, c. 34, the penalty for celebrating an Ontheceie- 
 irregular or clandestine marriage, by an unauthorized person, or ™°'^' 
 by an authorized person without proclamation of banns, was 
 banishment from the kingdom. Formerly any person not autho- 
 rized by the Kirk — in other words, not regularly called to the 
 exercise of pastoral functions within Scotland — who celebrated a 
 marriage otherwise regular, was within the Act ; ' but now the 
 . different classes of persons against whose celebration of marriages 
 the Act was directed have since been allowed by legislation to 
 celebrate, after the contracting parties have satisfied the proper 
 legal requirements.'' 
 
 The other mode of infringing the statute is, when marriage 
 is celebrated without proclamation of banns ; and this holds alike 
 whatsoever be the quality of the person officiating.* To the 
 absence of the proclamation of banns must now be added that of 
 the registrar's certificate, which is now made equivalent to the 
 certificate of the session-clerk of proclamation of banns, so far 
 as concerns the regularity of the marriage celebrated upon it ; " 
 and if " any person otherwise entitled to celebrate a marriage, 
 who shall celebrate a marriage in Scotland with a religious cere- 
 mony without having produced or exhibited to him a certificate 
 or certificates of the due publication of banns, or a registrar's 
 certificate, &c., applicable to both parties, or a certificate of due 
 proclamation of banns in the case of one of the parties, and a 
 registrar's certificate in the case of the other, shall be guilty of an 
 offence under this Act, and shall, on conviction thereof, be liable 
 to a penalty not exceeding ^50.' 
 
 If a minister be indicted under the statute, a forged or false 
 certificate of publication of banns produced to him at time of 
 marriage forms a good defence, if his ignorance of the forgery or 
 falseness of the document be proved. 
 
 1 The punishmentB inflicted by the Act cannot be enforced by justices of the peace. 
 
 2 Act 1698, c. 6. ' Hunoie, 464. 
 
 ■* See 10 Anne c. 7 ; and 4 & S Wm. IV. c. 28. ^ Hume, 466. 
 
 ^ 41 & 42 Vict. c. 43, ss. 6 & II. 
 ' 41 & 42 Vict. c. 43, s. 12. 
 
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38 HUSBAND AND WIFE. [part i. 
 
 Section 3. 
 
 Declarator of Marriage. 
 
 Declarator of Those who wish to preserve in some formal shape unqnes- 
 
 marriage. tionable evidence of their irregular marriage are wont to obtain 
 
 Fine, and ex- from the procurator-fiscal a petition (which is in printed form), 
 
 tenet evidence purporting to proceed, at the instance of that officer, against the 
 
 of marriage, parties for entering into an irregular marriage, and craving the. 
 
 magistrates to impose the statutory penalties upon them. The 
 
 parties then make a declaration confessing the fact, are fined, 
 
 and obtain an extract of the sentence, to be kept as the evidence 
 
 of the marriage. 
 
 Lord By Lord Brougham's Act' it was enacted that, after Decem- 
 
 Brougham'8 ^^^ ^^^ ^g^g^ -^ ^j^^^jj ^^^ ^^ lawful to convict any parties of 
 
 having irregularly contracted marriage, unless there shall be 
 
 Residence of adduced to the justice or justices of the peace, magistrate or 
 
 days in Scot- magistrates, before whom the complaint against such parties has 
 
 land necessary, been brought, Sufficient proof other than the acknowledgment of 
 
 such parties, that one of them had^ at the date thereof, his or her 
 
 usual residence in Scotland for twenty-one days next preceding 
 
 such marriage." 
 
 Magistrate a The rdU played by the magistrate is virtually that of a reput- 
 
 sent of parties, able witness only of the act and civil contract of the parties. He 
 
 is not committing an illegal act if he simply confine himself to 
 
 the character of a witness ; if he were to attempt to pronounce 
 
 the nuptial benediction and officiate as a clergyman, he would at 
 
 once violate the Act of 1661.^ 
 
 Section 4. 
 
 Begistration of Marriages. 
 
 Registration of Regular marriages are required to be registered much in the 
 
 same way as m England. Before irregular marriages can be 
 
 registered, certain procedure and formalities must be followed 
 
 and complied with. On this subject but little more need be 
 
 given than the more important sections of the Acts dealing with 
 
 marriage registration. 
 
 Eeguiarmar- *• Regular marriages. — In every case of regular marriage 
 
 "««««■ a copy of Schedule C of 17 & 18 Vict. c. 80, shall, upon 
 
 the production of the certificate of proclamation of banns, be 
 
 procured by the parties contracting the marriage, previous to 
 
 ' 19 & 20 Vict. c. 96, s. 3. 
 
 2 See Lawford v. Davies, 4 P. D. 61, ante, p. 31. 
 
 5 Fraser H. & W. 253-54. See ante, Penalties on the Celebrator, p. 37. He would 
 also render himself liable to the penalty under sect. 12 of 41 & 42 Vict c 43 
 
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 raarnages. 
 
CHAP, m.] MAERIAGE LAWS OF SCOTLAND. 39 
 
 its solemnization, from the registrar of the parish or district 
 within which such marriage is intended to be solemnized, who 
 shall be bonnd as far as possible to fill up the said schedule ;^ 
 and upon the solemnization of the marriage, such schedule 
 having all the information thereby required inserted therein, 
 shall be produced to the minister solemnizing the marriage, or 
 to the person solemnizing any marriage according to the rites 
 and forms respectively observed by Jews and Quakers, or shall 
 be filled up in the presence of such minister or person, and 
 shall be signed by the parties contracting the marriage, and by 
 the witnesses present thereat, not being less than two, and also 
 by the minister'" or person officiating, and be delivered to the 
 parties contracting the marriage, who shall within three days 
 thereafter deliver or send by post such schedule to the registrar 
 of the parish wherein the marriage was solemnized ; and the 
 husband, and failing the husband the wife, shall in case of failure 
 so to deliver or send such schedule be liable in a penalty not 
 exceeding ;^io.^ 
 
 In the case of a mixed marriage, which is celebrated accord- Registration of 
 ing to two ecclesiastical forms in different parishes (and perhaps riages. 
 also at different dates), only the first marriage ought to be regis- 
 tered, a reference being made on the margin of the entry to the 
 place and date of the subsequent ceremony. When the schedule 
 is transmitted after the expiry of the statutory period the mar- 
 riage must nevertheless be recorded.* 
 
 It is competent to the persons intending to contract marriage Attendance of 
 to require the registrar of the parish to attend at the solemni- not compui- 
 zation thereof, at any place within such parish ; and such registrar rarely "re- '^ 
 is required, upon a written notice of forty-eight hours given to quired. 
 him to that effect, to attend with the register book accordingly, 
 and to make the proper entry therein.* As a matter of fact, the 
 attendance of this officer is scarcely or ever required. 
 
 h. Irregular marriages. iiTeguiar mar- 
 
 i. In the event of any person being convicted before any convictions 
 justice of the peace or magistrate of having irregularly ^®^°™'' "'^sis- 
 contracted a marriage, it shall be lawful for either of 
 the parties to such irregular marriage, and they are 
 severally required, to register such marriage in the parish 
 in which such conviction shall have taken place.' 
 
 1 23 & 24 Vict. c. 85, s. 15. 
 
 2 The word "minister" includes ministers or pastors of Christian congregations of 
 all denominations. 17 & 18 Vict. c. 80, s. 76. 
 
 3 Ibid. s. 46. * Fraser, H. & W. 479. 
 
 ^ 17 & 18 Vict. u. 80, s. 47. The registrar is entitled to demand a statutory fee for 
 his attendance and expenses. 
 
 15 i7 & 18 Vict. c. 80, s. 48. The magistrate hefore whom, or the clerk of court in 
 
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40 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Marriages 
 established by" 
 decree of de- 
 clarator. 
 
 Begistration 
 on sheriff's 
 warrant on 
 joint applica- 
 tion of husband 
 and wife. 
 
 When double 
 
 registration 
 
 necessary. 
 
 Production of 
 extract of con- 
 viction, &c., 
 pi'imd facie 
 warrant to 
 registrar to 
 register the 
 marriage. 
 
 Extract of en- 
 tries to be 
 admissible as 
 evidence. 
 
 ii. In any case of a marriage being established by a decree of 
 declarator of any competent court, it shall be lawful for 
 either of the parties to the action in which such decree 
 was pronounced to register such marriage in the parish 
 of the domicil of such parties, or the parish of their 
 usual residence.' 
 iii. If any persons who shall have contracted an irregular 
 marriage in Scotland (on and after January i, 1857) 
 shall within three months after present a joirit applica- 
 tion for a warrant to register such marriage to the 
 sheriff or sheriff-substitute of the county where such 
 marriage was contracted, and shall prove to his satisfac- 
 tion that they have been married to one another, and 
 that one of them had lived in Scotland for twenty-one 
 days next preceding such marriage, or had his or her 
 usual residence in Scotland at the date thereof, such 
 sheriff or sheriff-substitute shall certify the same under 
 his hand, and shall thereupon grant a warrant to the 
 registrar of the parish or burgh in which the marriage 
 was contracted, who shall forthwith enter such marriage 
 in the register of marriages kept by him.^ 
 Where parties irregularly married are subsequently married in 
 facie ecclesice, and the first irregular marriage has been recorded, 
 it would appear to be necessary that the second regular marriage 
 should also be so recorded.^ 
 
 The production to the registrar of an extract of a conviction, or 
 decree of declarator, shall be sufficient evidence and warrant for 
 the registration of such marriage, provided it purports to show 
 that sufHcient proof (other than the acknowledgment of the par- 
 ties) was adduced to the justice or magistrate before whom such 
 parties were brought, and that one of them at the date of the 
 conviction had his or her usual I'esidence in Scotland for twenty- 
 one days immediately preceding the marriage/ Every extract 
 of any entry in the register books, properly kept, and duly 
 authenticated and signed by the Registrar-General, if such extract 
 shall be from the registers kept at the General Registry OfiSce, 
 and by the registrar, if from any parochial or district register, 
 
 which any such conviction has taken place, shall upon such conviction give information 
 to the registrar of the parish in which it took place by notice of the import of the con- 
 viction in the proper form. Hid. s. 49. 
 
 ■■ 17 & 18 Vict. t. 80, s. 48. Tlie clerk of court in which any such decree of 
 declarator has been pronounced establishing the marriage, shall give information to the 
 registrar of the parish of the domicil, or of the parish of the usual residence of the 
 parties to the action of declarator. Ihid. s. 49. 
 
 ^ 19 & 20 Vict. c. 96, s. 2. 
 
 ' Fraser, H. & W. 480. 
 
 ' 17 & 18 Vict. 0. 80, 8. 49 ; and 19 & 20 Vict. c. 96, s. 3. 
 
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CHAP. III.] MAREIAGE LAWS OF SCOTLAND. 41 
 
 shall be admissible as evidence in all parts of Her Majesty's 
 dominions without any other or further proof of such entry.' 
 
 Section 5. 
 
 Divorce. 
 
 As the Scotch law of divorce differs in some respects from the Divorce. 
 English, it was thought not quite out of place to append a few 
 sentences on this branch of the subject ; to enter into details, to 
 give the efifects of it as regards the spouses and the children both 
 as to their personal and proprietary relations, would be far beyond 
 the scope and necessities of this chapter. 
 
 Whether divorce, or dissolution of marriage on the ground of Divorce, 
 adultery, was permitted in Scotland before the Reformation has mzed in Scot- 
 been a moot question ; but it is undisputed that immediately formation " 
 after that epoch divorce a vinculo matrimonii was recognised.^ 
 According to Lord Fraser,' divorce for adultery is part of the 
 common law of Scotland, and not the creature of statutory enact- 
 ment. 
 
 The Scotch courts recognize two grounds for divorce : — 
 
 i. Adultery. This ground is open to either husband or wife ; Adultery. 
 and where the wife is the guilty party, the co-defender may be 
 cited, and if found particeps criminis, may be found liablfe for all 
 the costs of the husband. If the courts have jurisdiction over the 
 defender, it is immaterial that the adultery was committed out of 
 Scotland. 
 
 ii. Desertion. Desertion for a period of four years is a ground Desertion, or 
 per se for procuring a decree of divorce ; and in this point the ence. 
 law of Scotland differs from that of England. The technical and 
 more accurate expression is '■^non-adherence." It was formerly 
 necessary to commence proceedings with an action of adherence, 
 but by the Conjugal Rights Act, 1861,'' it is no longer 
 necessary prior to any action for divorce to institute against the 
 defender any action of adherence, nor to charge the defender to 
 adhere to the pursuer. This now enables the complaining party 
 to commence the action for divorce immediately on the expiry of 
 the four years' desertion. Mere separation is not desertion, Separation not 
 which must be a withdrawal from cohabitation and companion- 
 ship against the the pursuer's will ; thus, absence of the husband 
 on necessary business, or imprisonment in a foreign land, would 
 
 1 17 & 18 Vict. c. 80, s. 58. 
 ^ Oollins V. Collins, 9 App. Cas. 205. 
 
 ^ H. & W. 1 141. It received statutory recognitioD soon after the Reformation. 
 Per Lord Watson in Collins v. Collins (uhi sup., p. 246). 
 •• 24 & 25 Vict. i;. 86, s. II. 
 
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HUSBAND AND WIFE. 
 
 [part I. 
 
 Defences to a 
 suit for 
 divorce. 
 Condonation. 
 
 Connivance. 
 
 Collusion. 
 
 Oath of 
 calumny. 
 
 42 
 
 not be deemed desertion ; but if the wife refused to accompany 
 her husband abroad, and he left her, her act and not his would 
 constitute desertion. 
 
 The Scotch courts (like the English) recognize three defences 
 to a suit for divorce for adultery : — 
 
 (i) Condonation, or remissio injurice, is the forgiveness after 
 knowledge of the adultery by the injured spouse. It may be either 
 express, as by words, or tacit, as by continued cohabitation.' 
 
 (2) Connivance as to the commission of the adultery. If a 
 husband has been actively instrumental in exposing his wife to 
 temptation or thrown her in its way, if he encourages another to 
 solicit her chastity, or leads her into such society as is likely to 
 cause her virtue to fail, he cannot successfully maintain a suit for 
 divorce. Passive acquiescence on his part is equally fatal to the 
 husband's claim for relief. 
 
 (3) Collusion, or a deliberate arrangement between the par- 
 ties to facilitate proceedings for divorce, is a ground when brought 
 to the knowledge of the court for refusing the divorce sought by 
 the pursuer. With a view of checking collusion, all suits for 
 divorce are preceded by an oath, called the " oath of calumny," 
 administered to the pursuer. In this action, the taking the oath 
 calls upon the pursuer to declare that the defender has been 
 guilty of adultery, and that the libel is true, and that there has 
 been no collusion between them, or them and other parties, to 
 procure the divorce. A false oath of calumny, is not, however, 
 visited with the pains and penalties of perjury.^ 
 
 Jurisdiction of It is impossible to discuss Scotch divorce without adverting to 
 DomMur'^' the most important question whether domicil or residence gives 
 found jurisdic- iurisdiction to the Scotch courts in matters of divorce. This 
 
 tion must be J • i i. 
 
 bona fide. point has been hotly contested ; and at one time where the 
 defender resided for forty days in Scotland and was cited in 
 Scotland before he or she left it the Scotch courts claimed juris- 
 diction, and divorces were granted in consequence of the juris- 
 diction so founded, although the real domicil of the defender was 
 out of Scotland. But since the case of Fitt v. Pitt, in the House 
 of Lords ^ there has been a series of cases ■* that clearly decide 
 
 ^ Full condonation of adultery, followed by cohabitation as man and wife, is a 
 remissio injuria; absolute and unconditional, and affords an absolute bar to any action 
 of divorce founded on the condoned acts of adultery. Condonation of adultery — cohabi- 
 tation following — cannot be made conditional by any arrangement between the spouses. 
 Collins T. Collins, 9 App. Cas. 205. 
 
 ^ As a matter of fact, it does not seem to have any beneficial effect in farthering the 
 ends of justice. 
 
 2 4 Maoq. H. L. Cas. 627, which was decided by the House of Lords, as a Scotch 
 Court of Appeal, who reversed the decision of the Court of Session, which had upheld 
 the judgment of the Lord Ordinary. 
 
 ■* Carswell v. Carswell, 8 Court Sess. Cas, 4th series (Eettie), goi ; Stuvert v. 
 
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CHAP, in.] MARRIAGE LAWS OF SCOTLAND. 43 
 
 that mere casual residence in Scotland has no effect in founding 
 divorce jurisdiction so as to constitute any decree of divorce as of 
 avail beyond the jurisdiction of the Scotch courts. The domicil 
 must be iond fide and not merely colourable.' 
 
 Stavert, 9 Couvt Sess. Cas. 4th series (Eettie), 519 ; TT«ffs v. Watts 12 Court Sess. 
 Uas. 4tli series (Eettie), 894. 
 
 ^ See Bonaparte v. Bonaparte [1892], P. 402. 
 
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CHAPTER IV. 
 
 THE MAERIAGE LAWS OF IRELAND. 
 
 PAGE 
 
 The Canon Law Foundation of Ieish Maheiagb Law . 45 
 
 7 & 8 Vict. 0. 81 45 
 
 Mabbiagbs of Protestant Episcopalians : 
 
 Publication of Banns ... • . . 47 
 
 Special Licence • 47 
 
 Oedinaby Licence . • 47 . 
 
 Eegistbab's Ceetificatb . ■ 47 
 
 Maeeiages of Roman Catholics : 
 
 Publication of Banns . 48 
 
 Special Licence ... 49 
 Oedinaby Licence ... -49 
 
 Eegistbab's Cbbtificate . . 49 
 
 Maeeiages of Pbesbytebians : 
 
 Publication op Banns . . 50 
 
 Special Licence . ... 51 
 
 Oedinaby Licence .... . . 51 
 
 Mabbiages of Quakebs ... . . 51 
 
 Maeeiages of Jews 52 
 
 Mabbiages op those belonging to other Denominations . 53 
 Marriages in Presence op the Registrar : 
 
 Formalities peecbding Grant of Certificate or 
 
 Licence . . 54 
 
 Mixed Maeeiages -55. 
 
 Penal Laws against Roman Catholics .... 55 
 
 33 & 34 Vict. c. iio ... 56 
 
 Statutoey Requisites . . . . 56 
 
 DivoECE 58 
 
 Constitution of Court for Matrimonial and other Causes 59 
 
 Divorce a Vinculo Matrimonii not Granted ... 59 
 
 diffeebnces between english and irish law op divoecb 6o 
 
 The laws of Ireland affecting the marriages of those persons 
 now called Protestant Episcopalians (formerly members of the 
 United Church of England and Ireland), and of the members of 
 the various denominations, Eoman Catholics excepted, are not in 
 many essential points different from those of England dealing 
 with the same subject. There are, of course, differences, and 
 only^such differences will be discussed. The law affecting Eoman 
 Catholic marriages will also be set forth. 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. 45 
 
 The foundation of the marriage laws of Ireland, as of Eng- Oanou law the 
 land, is the canon law, based more or less on the ciTil. The irSf mi"rriage 
 canon law was the law of the Church of Rome ; and when by ^*^- 
 degrees the Church arrogated to herself power over all matters 
 which might by any ingenious twisting be made to concern the 
 spiritual welfare of the people — e.^., wills, intestacy, and especially 
 matrimony — its own peculiar legal system governed and regulated 
 these affairs. The recognized canons existing before 1603, and 
 those enacted in that year, formed the standard rules for the 
 governance of the Churches of England and Ireland ; and the 
 marriage law of the two countries (as affecting the members 
 of those churches) was the same previously to the passing of 
 26 Geo. II. c. 33.' Qn 1844 the Act of 7 & 8 Vict. c. 81, was 7 & 8 Viot. c. 
 passed.^ The marriages of Presbyterians and other nonconforming ^' 
 bodies were chiefly affected. Its more important provisions, so 
 far as they mark a difference between the laws prevailing in the 
 two countries are as follows : — 
 
 Clergymen of the United Church of England and Ireland were 
 bound to solemnize marriage on the production of a registrar's 
 certificate, as though it had been a certificate of due publication 
 
 ' Steadman v. Powell, l Add. 58. One important difference remained after 17S3, 
 viz., in Ireland suits founded on pre-contract could be entertained until 1818 
 (58_Ggo. III. c. 81, 3. 3), when they were abolished. 
 
 f^This enactment is directly traceable to the decision of the House of Lords in 
 Riff: V. Millis, 10 CI. & F. 534. One George Millis was indicted for 
 bigamy at the assizes for the county of Antrim in 1842, and the following facts 
 were proved and found by the jury : Millis, in .January 1829, accompanied by 
 one Esther Graham, a spinster, and three other persons, went to the house of the 
 Eev. John Johnston, the placed and regular minister of the congregation of 
 Presbyterians at TuUylush, in the county Down ; and there Millis and Graham entered 
 into a contract of present marriage in the presence of the said clergyman and the other 
 persons, and the ordinary religious Presbyterian ceremony was performed by the said 
 clergyman. Millis and Graham cohabited together as man and wife for two years. 
 Millis at the time of the contract was a member of the Established Church of Ireland, 
 but it did not appear whether Esther Graham was a member of such Church, or a 
 dissenter ; it was found she was not a Eoman Catholic. While the said Esther 
 Graham was alive, Millis intermarried in England with one Jane Kennedy, according 
 to the forms of the Established Church of England. Millis was apprehended in Sep- 
 tember 1841, in Belfast, and given into custody on a charge of bigamy. The case was 
 removed by certiorari to the Court of Queen's Bench, and the Court held that a 
 marriage contract per verha de prcesenti, though followed by consummation, did not 
 constitute a valid marriage according to the laws of Ireland, and that the presence of 
 a clergyman in holy orders was essential to the validity of such marriage. It was 
 further held that a Presbyterian minister was not a clergyman in holy orders competent 
 to celebrate a maniage between members of the Established Church, or between a 
 member of that Church and a Presbyterian. Mr. Justice Perrin dissented from both 
 rulings, and Mr. Justice Crampton joined with him in dissenting from the last. The 
 Court was divided, but Perrin, J., gave a formal judgment that the prisoner should be 
 acquitted, and the case was taken up to the House of Lords on a writ of error. The 
 judges were called in to assist the law lords, and the result was that three of the lords 
 were for an acquittal and three for a conviction, and so the judgment of the Court below 
 in favour of the prisoner was upheld. This decision settled the law until it was altered 
 by the Act of 1844. Notwithstanding the solemnity of the argument and the elabora- 
 tion of the judgment, this decision has been much questioned (and rightly so), both on 
 account of the law laid down and the circumstances of the judgment. See Catterall v. 
 CatteraU, I Eob. 582 ; Beamish v. Beamish, 9 H. L. Cas. 336 ; Beg. v. Mainwaring, 
 26 L. J. M. C. la— 7- 
 
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46 HUSBAND AND WIFE. [paet i. 
 
 Validation of of banns.' Marriages between parties, one or both of whom 
 biSby Pres" were Presbyterians, might be solemnized according to the proper 
 byterian minis- forms in a meeting-house certified by the minister (or ministers) 
 appointed so to certify.^ Such minister so appointed might 
 grant licences for marriages in any Presbyterian meeting-house, 
 after having given security by bond in the sum of ;£^ioo.' 
 Act did not Eoman Catholic marriages were not in any way afPected by the 
 riages^r Act/ neither were those of Jews and Quakers, provided both 
 Hcrjews''or" P^'^^ti^s Were of the same persuasion.^ The Act imposed on 
 Quakers. the dissenting bodies other than Presbyterians certain conditions 
 necessary to the celebration of a valid marriage by their minis- 
 ters, namely, the presence of the registrars at their marriages" 
 and the notification of the intended marriage by the registrar 
 to the Board of Guardians, before whom the notices were to be 
 Notice to poor- read.' These restrictions were deemed great grievances and 
 and presence ' hardships, especially as they had only been recently introduced 
 aboulhe™^ ^y *^® ^°^> ^^^ "^^^^ removed by 26 Vict. c. 27,^ except that 
 the presence of the registrar was indispensable when the marriage 
 was celebrated in his own office. This Act of 1844, together 
 with the more recent enactments of 33 & 34 Vict. c. no, and 
 34 & 35 Vict. c. 49, now form the statutory basis of the Irish 
 marriage laws. 
 
 It now remains to set forth those points in which the marriage 
 laws of Ireland differ from those of England, and the subject 
 matter of this chapter will be divided into the following 
 sections : — 
 
 Section i . Marriages of Protestant Episcopalians. 
 
 2. Marriages of Roman Catholics. 
 
 3 . Marriages of Presbyterians. 
 
 4. Marriages of Quakers and Jews. 
 
 5 . Marriages of those belonging to other denominations. 
 
 6. Marriages in the presence of the registrar. 
 
 7. Mixed marriages. 
 
 8. Divorce. 
 
 Section i . 
 Marriages of Protestant Episcopalians.^ 
 
 Pr^iS"^ Marriages between Protestant Episcopalians in Ireland, as in 
 
 Episcopalians. i Sect. i. _^ Sect. 4. 3 s^ct. 8. ^ Sect. 3. 
 
 beet. 12. ihe provision that both parties must be of the same persuasion has 
 been repealed by 35 Vict. c. 10. 6 gect. 45. ? Sect K. 
 
 beet. 2 abolished the publishing the notice before the poor-law guardians ; and 
 sect. 8 the necessity for the registrar's presence. 
 
 9 7 & 8 Vict c. 81 ; 33 & 34 Vict c. no. Protestant Episcopalians are defined 
 in, oTni '^''^A^''^"^ *''^ °>"'-<=l' I>-ela°d, of the Church of England, of the Epis- 
 copal Church of Scotland, and any other Protestant Episcopal Church 
 
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CHAP. IV.] MAERIAGE LAWS OF IRELAND. 47 
 
 England, may be celebrated either (i) after publication of banns ; 
 (2) or by special licence ; (3) or by ordinary licence ; (4) or on 
 production of the registrar's certificate. 
 
 ( 1 ) The publication of banns between persons both of whom After pubUoa- 
 must be Protestant Episcopalians, must take place either after *'™ °* ^^^''^^ 
 the reading of the Nicene Creed, or immediately after the second 
 Lesson.^ It does not appear that publication on three successive 
 Sundays is necessary, but any holy-day on which divine service is 
 performed is equivalent to a Sunday. 
 
 (2) The Archbishop of Armagh was in former days alone Speoiailicence; 
 entitled to grant special licences ; but since the Irish Church Act 
 
 of 1870, every bishop of the Protestant Episcopalian Church may be issued 
 
 , -IT J , .... by any bishop 
 
 may grant special licences to marry at any convenient time m of the Protes- 
 any place within his episcopal superintendence.^ Both parties p^^jg^f^^^""^^ 
 must be members of the Protestant Episcopal Church. The 
 proper certificate must be produced to the clergyman celebrating 
 the marriage, and it must be forwarded by the husband to the 
 Registrar-General of Marriages within three days after the 
 marriage, under a penalty not exceeding £10.^ 
 
 (3) Licensed persons nominated by the bishops" may issue Ordinary 
 licences authorizing marriages in any churches or chapels within 
 
 their respective districts in which marriages may lawfully be 
 solemnized, to persons who must have dwelt at least seven days 
 in the respective districts named in the notices requisite on 
 application for the licences. A residence of at least fourteen Besidence of at 
 days in the district of the church or chapel in which the marriage days in district 
 is intended to be solemnized is necessary on the part of at least "^"pgj'^by one 
 one of the persons seeking marriage. One of the parties must or both of the 
 be a Protestant Episcopalian. 
 
 (4) The difference between the law prevailing in England and On production 
 Ireland on this point is, that in the latter the clergyman is bound certilcatT"^ ^ 
 to celebrate a marriage on production of the registrar's certificate, clergyman 
 provided his church is within the district of the registrar issuing marry. 
 
 the certificate,' whereas in England he is not so bound. The 
 registrar's certificate is necessary where a marriage is intended to 
 be solemnized in Ireland, but one of the contracting parties 
 resides in England or in Scotland. If the party reside in Eng- Notioe if one 
 land, he must give the proper and usual notice to the superin- fn Engfand^^ 
 
 ^ Statutes of the Irish Church, chap. xvii. 
 
 2 33 & 34 Vict. c. no, 8. 36. . 
 
 ^ 34 & 35 Vict. c. 49, s. 22. The bishops of the Irish Church, immediately after 
 the passing of the Irish Church Act, 1870, were in the habit of issuing special licences 
 for " mixed marriages," but have discontinued to do so, after high legal opinion had 
 been taken, which was opposed to the practice. See post, Mixed Marriages, p. 57, n. ^. 
 
 * 33 & 34 "Vict. c. no, B. 35. 
 
 5 7 & 8 Vict. c. 81, s. I. 
 
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48 HUSBAND AND WIFE. [paet i. 
 
 tendent registrar of the district in which he has resided at least 
 in Scotland, seven days.' If the party reside in Scotland he must produce a 
 certificate of due publication of banns from the minister of the 
 congregation of which he has been a member not less than a 
 month.^ The production of the English registrar's and Scotch 
 minister's certificate will authorize the Irish registrar to issue his 
 certificate. In the case of mixed marriages, the ceremony of 
 marriage must be preceded by the production of the registrar's 
 certificate.^ 
 
 Section 2. 
 
 Marriages of Homan Catholics. 
 
 Maniages of ^^ strictness the law which regulates the marriages of Eoman 
 Eoman Catho- Qafcholics in Ireland is the common law, or old canon law, which 
 
 lies governed ' ^ , ' 
 
 by the com- would permit them to be celebrated publicly or privately, at any 
 time or place, and in any form or manner the celebrating priest (if 
 any) might deem fit, without banns, licence, consent of proper 
 Decrees of parties, or any safeguard of regularity. The decrees, however, of 
 Trentofyigour ^^^ Council of Trent, obtain in Ireland, which enjoin the observ- 
 in Ireland, but ancc of Certain disciplinary regulations : and while it is true that 
 
 omj in foro , -ri /-i i t i • i 
 
 comcientice. the Koman Catholic hierarchy are strenuous m preserving decency 
 and order, and in insisting upon regularity, and in discouraging 
 clandestinity, the decrees of a foreign Council, unless formally 
 adopted by the Sovereign of the country in which they are to 
 prevail, cannot per se have any binding force ; and so the Tridentine 
 decrees bind those who obey them only in foro conscieniice. The 
 only enactments affecting Eoman Catholic marriages are 26 & 27 
 Vict. c. 90, which for the first time provided for their registration, 
 and 33 & 34 Vict. c. no, and 34 & 35 Vict. c. 49, which were 
 passed on the disestablishment of the Irish Church, and (inter 
 alia) repealed the penal statutes dealing with mixed marri- 
 ages, and enabled Eoman Catholic clergymen to perform the 
 ceremony of marriage between parties of different denominations, 
 which previously alone could be performed by a clergyman of the 
 Established Church. 
 ^rieTanVtwo "^^^ *^® Tridentine decrees the presence of a priest and two 
 witnesses ne- witnesses, and three proclamations of banns, unless dispensed 
 cessary, c. ^j|.j^ -^^ episcopal licence, are made indispensable. These mar- 
 riages may be celebrated (i) after publication of banns; (2) by 
 
 ^ 9 & 10 Vict. 0. 72, s. I. 
 
 2 m^ ^ 2. For due publication of banns in Scotland, see preceding chapter, p. 25. 
 It is suggested that a registrar's certificate issued in accordance with me provisions of 
 41 & 42 Vict. 0. 43, would now be equivalent to the Scotch minister's certificate of the 
 proclamation of banns. 
 
 ^ 33 & 34 Vict. c. no, s. 38. See post, pp. 56-58. 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. 49 
 
 episcopal or special licence; (3) by ordinary licence; (4) on 
 production of the registrar's certificate. 
 
 In order to secure the proper registration of Eoman Catholic Eegistration of 
 marriages, an Act was passed in 1863,' which provided that such S^AoT'^™ 
 marriages should be preceded by the procuring from the registrar i^.S3' 26 & 27 
 his certificate of the intended marriage, which was to be handed Monseii's Act. 
 to the clergyman at the ceremony. This certificate properly 
 filled up, must be sent by the husband to the district registrar 
 within three days after the celebration of the marriage, under a 
 penalty of ;£^io.^ 
 
 ( 1 ) The proclamations should take place on three consecutive After pubUca- 
 Sundays or holy-days. Both parties mwsi be Eoman Catholics.' '™° 
 
 (2) An episcopal or special licence is issued by the bishop of By special 
 the diocese in which both the contracting parties reside. It is 
 procured by the parties going before their parish priest, who 
 makes inquiries as to the freedom of the parties to marry and their 
 knowledge of the doctrine of the Church on the subject of mar- 
 riage. He gives them a certificate vouching these facts, and on its 
 presentation to the bishop or vicar, a licence is procured. Both 
 parties must be Eoman Catholics.^ The registrar's certificate 
 
 must be procured beforehand, and produced to the oflSciating 
 clergyman.^ 
 
 (3) Ordinary licences are issued by the persons nominated By ordinary 
 by the bishop to grant them. Both parties need not be Eoman 
 Catholics ; where only one is a Eoman Catholic, then notice in 
 writing must be given by one of them to the person empowered 
 
 to issue such licences seven days before the licence is to issue. 
 The person who receives the notice must forthwith send by post 
 a copy of it to the clergyman officiating at the places of 
 worship where the contracting parties have been in the habit of 
 attending.* 
 
 (4) In the cases of Eoman Catholics marriages on the registrar's On the vegis- 
 certificate take place only when they are " mixed ; " but obtaining gate. 
 
 the certificate is now a condition precedent.' 
 
 Under the section of " Mixed Marriages " ^ will be found the 
 necessary information. For purposes of registration it is required 
 that all Eoman Catholics marrying shall first obtain a formal 
 and legal certificate from the registrar of their district, which on 
 marriage is to be produced to the officiating clergyman, and 
 
 1 26 & 27 Vict. c. go, s. II. See also 34 & 35 Vict. c. 49, e. 22. 
 
 ^ Ibid. 
 
 ^ Faloon, The Marriage Law of Ireland, 40. 
 
 '' 34 ^ 35 Vi^t- <=■ 49> 8- 22. 
 
 ' Sect. 25. 
 
 * Sect. 27. 
 
 ' Seepost, p. 55. 
 
 D 
 
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60 
 
 HUSBAND AND WIFE. 
 
 [PABT I. 
 
 Mamagea of 
 Presbyteriaus, 
 
 Toleration of 
 such mar- 
 riages, and 
 their validity 
 inferred from 
 immunity of 
 minister. 
 
 After publica- 
 tion of banns. 
 
 signed by him, the contracting parties, and at least two wit- 
 nesses. The parties must within three days after marriage 
 either deliver or send by post the certificate so signed to their 
 district registrar, under a penalty, in the case of the failure to do 
 so on the part of the husband, not exceeding ;^io, to be sum- 
 marily recovered.' 
 
 Section 3. 
 
 Marriages of Presbyterians. 
 
 In the year 1738 Pesbyterians and other nonconformists 
 obtained certain privileges in respect to their marriages, which 
 amounted in those days to a considerable recognition of their 
 claims. By the Act called " An Act for giving further ease to 
 Protestant Dissenters with respect to their matrimonial con- 
 tracts " ^ the marriages performed by Presbyterian ministers were 
 not directly legalised, but their celebration was sanctioned, and 
 from the protection of the minister from prosecution their validity 
 was inferred, and to a certain extent so treated. The validity, 
 however, of such contracts was from time to time questioned, 
 and it was not until 1842 that an Act' was passed to validate 
 marriages which had been celebrated by Presbyterian or other 
 nonconforming ministers or teachers, and to declare them to be of 
 the same force and validity as if celebrated by the clergymen of 
 the Established Church.^ But now the marriages of Presby- 
 terians are governed by 7 & 8 Vict. c. 81, which was passed to 
 obviate the decision of the House of Lords in The Queen v. 
 MillisJ' A Presbyterian minister cannot perform the ceremony 
 unless one of the parties be a member of his church or congre- 
 gation, except for sickness, absence, the vacancy of another 
 congregation, or on the request of some other minister of his 
 church.^ 
 
 The marriages may now be celebrated according to the forma 
 of the Presbyterian Church: — (i) after publication of banns; 
 (2) special licence ; (3) licence of the minister of the Church. 
 
 (i) Both parties must be Presbyterians who wish to be 
 married after publication of banns.' The banns must be pub- 
 lished on three Sundays preceding the solemnization of the 
 marriage in the meeting-house of the congregation, or meeting- 
 
 ■^ 26 & 27 Vict. c. 90, s. II. 
 
 ^11 Geo. II. 0. 10. 
 
 8 5 & 6 Vict. c. 113, supplemented by 6 & 7 Vict. c. 37. 
 
 " FalooD, The Marriage Law of Ireland, 17. 
 
 ^ 10 CI. & F. 534. See ante, p. 45. 
 
 FalooD, The Marriage Law of Irelan'l, 4^ 
 ' 7 & 8 Vict. c. 81, 6. 4. 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. 51 
 
 houses of the congregations (as the case maybe), during the time 
 of divine service.' The parties must, six days before the first 
 publication, deliver a notice of their names, places of abode, &c., 
 to the minister of the congregation (or congregations) of which 
 they happen to be members.^ Marriages after publication of banns 
 are of rare occurrence in this communion. 
 
 (2) A special licence is granted by the different heads of the By special 
 Presbyterian bodies mentioned in 33 & 34 Vict. c. no, s. 37, '''^^'"'' vict 
 who have co-ordinate and like jurisdiction with the bishops of <=■ "°, s- 37- 
 the Irish and Roman Catholic Churches, and the heads of certain 
 
 other religious bodies. The parties seeking this licence must 
 belong to the same Church, assembly, synod, or presbytery as the 
 person granting the licence,' the price of which amounts to about 
 /lo Ss. 
 
 (3) For a marriage by ordinary licence, it is not necessary By ordinary 
 that both parties should be Presbyterians. The licence is issued ^^'""^'^^■ 
 
 by the ministers appointed by the different presbyteries,* who can 
 grant them for marriages in meeting-houses within their respec- 
 tive jurisdictions.* The party applying for the licence must, seven 
 days before its grant, produce to the licensing minister a certificate 
 from the minister of his or her congregation, to the effect that he 
 or she has been a member of such congregation for at least one 
 calendar month next preceding ; " and before it is granted one of 
 the parties must appear personally before the licensing minister, 
 and state upon oath or affirmation the matters set out in sect. 9 
 of the Act. 
 
 Section 4. 
 Marriages of Quakers and Jews. 
 
 The right of Quakers and Jews to celebrate their marriages Marriages of 
 according to their own ritual, and before their own proper minis- jewe.^™ ^'^ 
 ters, has long been conceded to them, and recognized in marriage 
 legislation both in England and Ireland. 
 
 a. Quakers can be married according to their own ceremonies, Quakers. 
 either by special licence by the clerk to the yearly meeting of the 
 Society of Friends,' on the production of a certificate in the form 
 of the schedule to 34 & 35 Vict. c. 49; or by the registrar's 
 licence ; or on the production of the registrar's certificate, where 
 
 1 Sect. 5. 
 
 ^ Sect. 6. For the contents of the notice, see the section. 
 
 ' 33 &^ 34 Vict. c. no, s. 37. See also the "special licence" granted by the 
 bishops of the Irish Church, ante, p. 49. 
 -i 7 & 8 Vict. c. 81, o. 7. 
 5 Sect. 8. '^ Sect. 10. 
 
 '■ 33 & 34 Vict. c. no, 8. 37. 
 
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52 , HUSBAND AND WIFE. [part i. 
 
 one or even neither of the parties is a professed Quaker, This 
 seems now to be the law, for the provision in lo & 1 1 Vict. c. 58 
 and 23 & 24 Vict. c. 18, s. i, that both or one of the parties 
 must be a member of or professing with the Society, has been 
 repealed by 3 5 Vict. c. 10, s. i, which does away with the necessity 
 of either party being a member, if the parties produce to the 
 registrar a satisfactory certificate, signed by a registering officer 
 of the Society, that both or either party giving the prescribed 
 notice are or is duly authorised to proceed to the accomplishment 
 of such marriage according to the usages of the Society. , 
 
 A person applying to the registrar for a licence or for a certifi- 
 cate of publication must give the notice prescribed by 26 Vict. 
 0. 27, s. 2 J after making the necessary statements. The regis- 
 trar's certificate must be given to the registering officer for the 
 place where the marriage is solemnised after the manner of the 
 Quakers ; and such registering officer, whether present or not at 
 the ceremony, must satisfy himself that the usages of the Society 
 Presence of a have been complied with.' The presence of a registrar is not 
 required. ''° necessary at the marriage of Quakers in any certified meeting- 
 Jews, house.^ 
 
 h. In most respects the provisions regulating the marriages of 
 Quakers are applicable to those of Jews, and they are usually dealt 
 with in the same sections of the various Acts. Jews must give 
 the statutory notice to their district registrar of their intended 
 marriage,^ but it is not any longer necessary that the building 
 stated in such notice as the building in which such marriage is 
 intended to be solemnized, or that the building in which such 
 marriage is solemnized, shall be within the district within which 
 one of the parties shall have dwelt the prescribed period of at 
 least seven days." 
 The Secretary T}ie official and responsible officer connected with the registra- 
 gogixe ; tion of Jewish marriages is styled the " Secretary of a Synagogue," 
 
 IS u les. ^^^ jjg -g ^^ recipient of the registrar's certificate at the time of 
 the solemnization of the marriage ; and if the husband belong to 
 the synagogue of which he is the secretary, the duty of registering 
 in duplicate the marriage devolves upon him. If he is not present 
 at the ceremony he is to satisfy himself that the solemnization of 
 the marriage has been proper and regular according to Jewish 
 usages^ and within the proper hours.'^ A Jewish marriage on the 
 registrar's licence must conform to the requirements of 7 &. 8 Vict. 
 c. 81, s. 22. 
 
 1 7 & 8 Vict. c. 81, s. 64. ' 26 Vict. c. 27, s. 8. 
 
 3 26 Vict. c. 27, s. 2. ^ 34 & 35 Vict. c. 49, s, 28. 
 
 5 7 & 8 Vict. c. 81, s. 64. 
 
 '' 26 Vict. 0. 27, s. 7 ; and 34 & 35 Vict. c. 49, s. 22. 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. 53 
 
 The presence of a registrar is not necessary at the marriages of Presence of a 
 Jews celebrated in certified houses of worship.' refuted "°* 
 
 There is no provision in the Act of 33 & 34 Vict. c. no, 
 enabling Jews to contract marriage on a special licence ; and it 
 does not appear that a marriage can be celebrated according to 
 Jewish usages except both parties belong to the Jewish religion. 
 
 Section 5. 
 Marriages of those heloTiging to other Denominations. ' 
 
 The marriages of other nonconformists may be celebrated either Marriages 
 on the registrar's licence, or on the production of his certificate, or fongirig'to 
 by a special licence granted by the head of one or other of the o'l'?'" denomi- 
 nonconforming bodies (not being Presbyterians) mentioned in 
 33 & 34 Yict. c. no, s. 37.,^ where both parties belong to the 
 same body as the grantor of the licence. 
 
 Where the marriage is had on the registrar's certificate or licence Bequisites for 
 it must be solemnized by a minister of the church, denomination, the'regSt?a™s 
 or body to which the parties to the marriage, or either of them, certificate or 
 shall belong, in the registered place of public worship named in 
 the notice, between 8 a.m. and 2 p.m., in the presence of at least 
 two witnesses other than the officiating minister or person solemniz- 
 ing the marriage, and not elsewhere or otherwise. A wilful trans- 
 gression of these provisions is a felony.^ 
 
 The presence of the registrar is not required at such marriages Presence of 
 celebrated out of his office.^ re|nh"d.''°' 
 
 The effect of the three Acts, 7 & 8 Vict. c. 8 1 ; 26 Vict. c. 27; 
 and 33 & 34 Vict. c. iio, has been extended by the Marriage 
 Law (L-eland) Amendment Act, 1873,* to religious communities 
 which are not Roman Catholics and do not style themselves 
 Protestants, and declares marriages celebrated in the past 
 between the members of such communities to be good and 
 valid. 
 
 A difficulty has been suggested in cases of notice of marriage 
 to the registrar where the parties have not attended a place of 
 worship, or where there may be no regular minister of the body 
 of worshippers. But it would probably be held sufficient to have 
 the non-attendance specified in the proper column in the notice, 
 and have the notice of marriage advertised as directed by sect. 4 1 
 of 33 & 34 Vict. c. no.'' 
 
 ^ 26 Vict. c. 27, s. 8. 
 
 '^ Amended by 34 & 35 Vict. c. 49, s. 21. ' 26 Vict. c. 27, s. 7. 
 
 * 26 Vict. 0. 27, B. 8. ' 36 Vict. c. 16. 
 
 ^ Faloon, The Marriage Law of Ireland, 52. 
 
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54 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Marriages be- 
 fore the 
 registrar. 
 
 Formalities 
 preceding 
 grant of certifi- 
 cate or licence 
 similar to those 
 in England. 
 
 Certificate not 
 issuable for 
 twenty- one 
 days, and 
 licence seven 
 
 No provision 
 for religious 
 ceremony in 
 Irish Acts. 
 
 Section 6. 
 Marriages in the presence of the Registrar. 
 
 Marriages before registrars were rendered legal in Ireland by 
 tbe Act of 7 & 8 Vict. c. 8i, wbich enabled persons who objected 
 to be married with any religious observances to go through a valid 
 ceremony of marriage at the office of the registrar, and in his 
 presence. Marriage before a registrar is of course open to all 
 persons, whether belonging to any religious denomination or not. 
 Thus, any person who objects to marry in any registered building 
 belonging to a religious denomination may, after due notice and 
 certificate issued, contract and solemnize marriage on any day 
 except Sunday at the office and in the presence of the registrar 
 of the district, and in the presence of two witnesses, with open 
 doors, and between the hours of 8 A.M. and 2 P.M.^ The neces- 
 sary formalities required before the grant of the registrar's 
 certificate or licence are practically, though not quite, the 
 same as those required in England.^ Thus, the notice to be 
 given of an intended marriage contains in addition to those 
 matters required in England an additional statement as to whether 
 the marriage is intended to be celebrated by virtue of the cer- 
 tificate, or the licence of the registrar.^ The declaration to be 
 made by the parties is similar to that required in England, 
 and without it no certificate or licence for marriage can issue.* 
 The registrar must not in any case issue a certificate until after 
 the expiration of twenty-one days, or grant a licence until after the 
 expiration of seven days from the day of entry of the notice by 
 him.^ 
 
 As before pointed out, the presence of the registrar is not 
 necessary at any marriage celebrated in any registered or certified 
 house of worship." 
 
 The statutory provision in England for enabling persons who 
 have been married at the registrar's office to be afterwards mar- 
 ried with a religious ceremony on production of the registrar's 
 certificate,' is altogether wanting in the Irish enactments. 
 
 The requisites for a marriage on the registrar's certificate or 
 licence have been thus summed up : ^ 
 
 (i) "A residence by the parties in the registrar's district for 
 seven days immediately preceding the giving notice to the regis- 
 
 1 7 & 8 Vict. 0. 8i, s. 30. 
 
 2 See post, p. 99. The requirements of the Irish law are set out in detail in 
 26 Vict. 0. 27, ss. 2-5, and 33 & 34 Vict. u. no, s. 41. 
 
 3 26 Vict. 0. 27, B. 2. ■* Ihid. s. 4. 
 ° Sect. 5. gg^t^ s_ 
 
 ' 19 & 20 Vict. 0. 119, s. 12, 
 
 * Faloon, The Marriage Law of Ireland, p. 63. 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. 55 
 
 trar, and should the parties reside in different districts, separate 
 notices must be given to the separate registrars ; and on giving 
 this notice the person delivering the same must declare that for 
 one month preceding each of the parties concerned has usually- 
 attended some place of worship (if such has been the case), and 
 that no impediment exists to the marriage, and furnish the par- 
 ticulars required by the notice, the form of which is supplied by 
 the registrar. After the expiration of twenty-one days from the 
 entry of the notice, the registrar issues his certificate, and on its 
 production the marriage may be performed. Separate certificates 
 are necessary if the parties reside in different districts. 
 
 (2) "If the marriage is to be had on licence from the registrar, 
 one or other of the parties must have resided for fifteen days in 
 the district preceding the giving of notice, and if resident in 
 different districts, the notice is given to the registrar of each dis- 
 trict, stating a residence by each of fifteen days before giving the 
 notice. On the expiration of seven days next after the giving of 
 the notice the certificate of the registrar may issue, and thereupon 
 the ceremony may be had." 
 
 Section 7. 
 Miosed Marriages. 
 
 A mixed marriage is one that is celebrated by the minister of Definition of 
 one denomination between parties who are not of his denomination liage.'' "" 
 or who are themselves of difierent denominations. 
 
 This subject is inseparably bound up with the harsh penal laws Penal laws 
 which were directed with such venom against Eoman Catholics in catholics .°™*° 
 Ireland, and it has been only within the past few years that a 
 repeal of most serious consequences for celebrating a mixed 
 marriage by a Roman Catholic priest was placed upon the statute 
 book. Since the decision of Beg. v. Millis,^ it must be taken as 
 law that previously to 5 & 6 Vict. c. 1 1 3 , no marriage valid per 
 se was ever celebrated except by some duly ordained minister, 
 either of the Church of Ireland or of Eome. The Act of 7 & 8 
 Vict. c. 81, put matters, as has been seen, on a difierent footing 
 in respect of marriages of Presbyterians and other nonconformists, 
 recognizing as valid that which previously had been held invalid, 
 or treated as valid only on sufierance, and enabling Presbyterian 
 ministers to celebrate marriages between parties who were not 
 both Presbyterians, provided only they complied with the statutory 
 requirements.^ Roman Catholic priests, however, could only validly 
 celebrate marriages between Eoman Catholics, for their marriages 
 were left untouched by that statute. 
 
 1 10 CI. & p. 534. " Sect. 4. 
 
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56 
 
 HUSBAND AND WIFE. 
 
 [PAKT 
 
 33 Geo, III 
 
 C. 21. 
 
 Protestants 
 and Roman 
 Catholics 
 allowed to 
 intermarry. 
 
 Penalties on 
 Eoman Gatho. 
 lie priests ; 
 Deafh. 
 
 Pine. 
 
 seven years 
 
 By 3 3 Geo. III. c. 2 1 , s. 12, Protestants and Eoman Catholics 
 were allowed to intermarry, and persons having jurisdiction to 
 grant licences for marriages between Protestants and Eoman 
 Catholics, and the clergy of the Established Church, and Pro- 
 testant dissenting ministers, might publish banns of marriage 
 between such persons ; but neither Protestant dissenting ministers, 
 nor Eoman Catholic priests, were permitted to celebrate marri- 
 ages between members of the Established Church and Eoman 
 Catholics.' 
 
 The Act of 1 3 Geo. I. c. 3 , inflicted the punishment of death 
 upon a Eoman Catholic priest for marrying two Protestants, or a 
 Papist and a Protestant. 
 
 By the Act of 33 Geo. III. c. 21, no Popish priest was to 
 celebrate marriage between Protestants, or between a person pro- 
 fessing to be a Protestant within twelve months before such cele- 
 bration, and a Papist, unless such persons had been previously 
 married by a clergyman of the Protestant religion, under a penalty 
 of^Soo.^ 
 
 By the Act of 5 Vict. c. 28, transportation for seven years was 
 
 substituted for Substituted for the penalty of death for the celebration by a Eoman 
 
 death penalty. Catholic of a marriage between Protestants, or between a Papist 
 
 and a Protestant. In all cases the marriages themselves were 
 
 pronounced null and void. 
 
 Sy 33 "^ 34 Vict. c. 1 10, the disabilities aSecting Protestant 
 Episcopalian and Eoman Catholic clergymen marrying persons, 
 one of whom was a Eoman Catholic or Protestant Episcopalian, 
 are completely removed, if the parties conform to the statutory 
 requirements,^ which provide that : A marriage may be lawfully 
 solemnized by a Protestant Episcopalian clergyman between a 
 person who is a Protestant Episcopalian and a person who is not 
 a Protestant Episcopalian, and by a Eoman Catholic clergyman 
 between a person who is a Eoman Catholic and a person who is 
 not a Eoman Catholic, provided the following conditions are com- 
 plied with : 
 
 (i) That such notice is given to the registrar, and such certi- 
 ficate is issued as is required by 7 & 8 Vict. c. 8 1 , ss. 13 and 1 6, 
 and 26 Vict. c. 27, ss. 3, 4, and 5, in every case of marriage 
 intended to be solemnized in Ireland according to the rites of the 
 United Church of England and Ireland, with the exception of 
 marriages by licence, or special licence, or after publication of 
 banns. 
 
 (2) That the certificate of the registrar is delivered to the 
 
 1 Sect. 13. 
 
 ^^ Sect. 12. This Act was repealed by 3 & 4 Wm. IV. c. 102. 
 
 ■ Sect. 38. See also sect. 40. 
 
 33 & 34 Vict 
 c. no. 
 
 Statutory 
 requisites : 
 Proper notice 
 to the regis- 
 trar, and issue 
 of his oertifl- 
 cate. 
 
 Oertifioate to 
 be produced to 
 
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CHAP. IV.] MARRIAGE LAWS OF IRELAND. :.7 
 
 clergyman solemnizing such marriage at the time of the solemniza- officiating 
 tion of the marriage. ciergrman. 
 
 (3) That such marriage is solemnized in a building set apart Marriage to be 
 for the celebration of divine service, according to the rites and jng setlpan 
 ceremonies of the clergyman solemnizing such marriage, and *°'" '^J'^'^" ?^'"- 
 aituated in the district of the registrar by whom the certificate is t^r's district. 
 issued ; 
 
 (4) With open doors. Open doors. 
 
 (5) That such marriage is solemnized between the hours of Hours within 
 eight in the forenoon and two in the afternoouj in the presence riage to be' 
 of two or more credible witnesses. celebrated. 
 
 Any marriage solemnized by a Protestant Episcopalian clergy- wiifui non- 
 man between a person who is a Protestant Episcopalian and a ^^th Ihfstatu- 
 person who is not a Protestant Episcopalian, or by a Eoman '"t require- 
 
 riiTi 1 1- /-NIT ™ents renders 
 
 Catholic clergyman between a person who is a Eoman Catholic marriage 
 and a person who is not a Roman Catholic, shall be void to all '°™ 
 intents and purposes in cases where the parties to such marriage 
 knowingly and wilfully intermarried without due notice to the 
 registrar, or without certificate of notice duly issued, or without 
 the presence of two or more credible witnesses, or in a building 
 not set apart for the celebration of divine service according to 
 the rites and ceremonies of the clergyman celebrating such mar- 
 riage.' There must be a deliberate intention to disregard the 
 statutory formalities ; ^ and a marriage celebrated without the 
 proper statutory formalities cannot be questioned by either of the 
 parties in order to avoid forfeiture of certain rights consequent 
 on such marriage.^ 
 
 The Act passed in the following year^ (The Marriage Law Ordinary 
 [Ireland] Amendment Act, 1871) enabled Protestant Episco- gytot^e^^ ^r" 
 palians and Roman Catholics intending marriage to substitute for registrar's 
 
 ^ _ _ . . licence m case 
 
 the registrar's licence the licence of those empowered to issue of Protestant 
 ordinary licences.* The course of legislation has thus removed and^Boma™^ 
 
 Catholics. 
 
 1 Sect. 39. 2 Re Knox, 23 L. R, (Ir.) 542. ^ jj/^^. 
 
 -* 34 & 35 Vict. 0. 49. 
 
 ^ Sects. 26 & 27. It was at first thouglit that sect. 26 gave the power to the 
 tishops of the Church of Ireland (and to them alone) to issue special licences for 
 these mixed marriages, but high legal opinion was taken on the point, and it was 
 to the effect that such a construction of the section would be practically to repeal 
 sect. 38 of 33 & 34 Vict. u. no, and give to the bishops of the Church of Ireland an 
 advantage and pre-eminence contrary to the spirit of that Act. Sect. 26 is 
 as follows : Any person who, under the provisions of the Matrimonial Causes 
 ■and Marriage Law (Ireland) Amendment .A-Ct, 1870, is or shall be empovjered to 
 issue licences for marriage, may issue such licences in cases where only one of the 
 parties intending to intermarry is a Protestant Episcopalian, in the same manner and 
 subject to the same rules as are therein prescribed in cases where both the parties are 
 Protestant Episcopalians ; and any licence heretofore or hereafter issued under the said 
 Act, or under the provision of this present section, is hereby declared regular and valid 
 when one of the parties shall, for seven days previous to the giving notice of such 
 intended marriage, have resided in the district of the person issuing such licence. 
 Sect. 27. Whenever a licence for the marriage of a Eoman Catholic with a person 
 
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58 HUSBAND AND WIFE. [part i. 
 
 not only the legitimate grievances of those who did not conform 
 to the faith and tenets of the Irish Church, bat also the terrible 
 pains and penalties affecting the Roman Catholic clergy which 
 were a disgrace to the laws and customs of Ireland. 
 
 Section 8. 
 
 Divorce. 
 
 Difference be- There is a marked difference between the law prevailing in 
 TnaTrish^^^ Ireland and that obtaining in England as regards divorce. In 
 divorce law. jj-giand, as in England, the old Ecclesiastical Court could decree a 
 sentence of nullity of marriage for fitting and proper reasons, and 
 might pronounce a sentence of divorce a meTisd et thoro, which was 
 equivalent to the more modern decree of judicial separation, hut 
 could not divorce a couple a vinculo matrimonii, that is, dissolve 
 the marriage tie itself. This latter remedy could only be obtained 
 by a private Act of Parliament, the Bill being introduced into the 
 House of Lords. In England, by the Divorce Acts of 1857' 
 and 1 85 8,^ the jurisdiction of the old Ecclesiastical Court was 
 transferred to the new Court of Probate and Divorce,^ the powers 
 of which were much enlarged ; the injured party was no longer 
 compelled to bring his action for criminal conversation against 
 the seducer to recover damages, and bring his suit for a divorce 
 a mensd et thoro, and finally introduce his Bill into the House of 
 Lords to dissolve the marriage and enable him to marry again. 
 But if the conduct of the respondent (the wife) entitles the 
 petitioner to a dissolution a vincido Tnatrimonii, the latter can 
 join the seducer as a co-respondent, and get damages from him 
 in the same suit ; and if the allegations of the petitioner are 
 proved, the court can pronounce a sentence of dissolution of mar- 
 riage to take efiect six months after the date of the decree nisi, 
 unless in the meantime it is proved to the satisfaction of the 
 court that the petitioner is disentitled to the relief he seeks. If 
 the conduct of the respondent is only such as would warrant a 
 
 not a Eoman Catholic shall have been issued, pursuant to the provisions of sects. 25 or 
 26 of this Act, such marriage may lawfully he solemnized by a Eoman Catholic clergy- 
 man between such persons ; and whenever such licence shall, pursuant to the provisions 
 of either of said sections, have been issued for the marriage of a Protestant Episcopalian 
 with a person not a Protestant Episcopalian, such marriage may lawfully be solemnized 
 by a Protestant Episcopalian clergyman ; and when any of such licences shall have 
 been issued it shall not be necessary to obtain any certificate from the registrar, and 
 every such licence shall have the same force and effect as, under the provisions of the 
 Matrimonial Causes and Mairiage Law (Ireland) Amendment Act, 1870, the certificate 
 of the registrar would have had. 
 
 ^ 20 & 21 Vict. 0. 85. 
 
 2 21 & 22 Vict. c. 108. 
 
 ^ Now the Probate, Divorce, and Admiralty Division of the High Court of Justice. 
 
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CHAP. IV.] MAERIAGE LAWS OF IRELAND. 59 
 
 judicial separation (divorce a mensd et thord), then in such a case 
 the Court can pronounce a decree to that effect. 
 
 But in Ireland the old state of affairs was left untouched until Oonsututinn of 
 the year 1870, when the changes effected by the disestablishment matrhnoniai' 
 of the Irish Church necessitated a further alteration of the law. <^^^f^^ ^'^^ 
 
 matters. 
 
 Accordingly, in that year, the " Matrimonial Causes and Mar- 
 riage Law (Ireland) Amendment Act, 1870,'" was passed, the 33 & 34 "Vict. 
 seventh section of which provides as follows : — From and after ' "°' ' ^' 
 the first day of January 1871 all jurisdiction now vested in or 
 exercisable by any ecclesiastical court or person in Ireland in 
 respect of divorces a mensd et tJioro, suits of nullity of marriage, 
 suits for restitution of conjugal rights or jactitation of marriage, 
 and in all causes, suits, and matters matrimonial, except in respect 
 of marriage licences, shall belong to and be vested in Her Majesty, 
 and such jurisdiction shall be exercised in the name of Her 
 Majesty in a court of record, to be called the Court for Matri- 
 monial Causes and Matters. This, it will be seen, constitutes a 
 new court with the jurisdiction of the old, but does not enlarge 
 its powers as did the Divorce Acts in England. The effect has 
 been thus summed up : — In Ireland the court can do all that 
 was formerly done in relation to matrimonial causes by the 
 ecclesiastical courts ; but it can do no more. It can grant a 
 divorce a merisd et thoro from the adulterous wife, but it must do 
 so at the expense of the husband. It cannot bring before it the 
 guilty paramour, and condemn him in damages or costs. Over 
 the children it has no power, nor can it order a settlement for 
 their benefit. If the husband seeks a divorce a vinculo, he must Irish divorce 
 go through the thrice painful ordeal of an action against the not giant a \ 
 seducer for criminal conversation, a petition to the judge of the ^J^'^^^^^l""' 
 Matrimonial Court for a divorce a mensd et thoro, and a proceed- monw. 
 ing by way of private Bill in the House of Lords.^ Indeed, 
 unless the husband or both parties come over to England, and 
 there reside sufficiently long to give the English Court jurisdiction 
 to entertain the suit, the only method of putting an end to the 
 matrimonial tie is that given above. Until very recent times a 
 wife domiciled in Ireland was held not entitled to obtain a divorce 
 a vinculo, but the House of Lords has laid it down that since the 
 passing of the Divorce Act, 1857, legal grounds of divorce, ac- 
 cording to the provisions of that Act, though limited in its effect 
 to England, will be sufficient to uphold an application to the 
 
 ' 33 & 34 Vict. c. no. 
 
 2 Kiabey, Law and Practice of the Court for Matrimonial Causes and Matters. 
 Since 1866 there have heen twelve private Bills passed for the purpose of dissolving Irish 
 marriages, namelv, one in each of the years 1866, 1867, 1S71, 1873, and 1877, two in 
 i886, three iu 1887, and one each in 1888 and 1893. This information has been 
 kindly supplied by the Librarian of the House of Lords. 
 
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60 HUSBAND AND WIFE. [pab 
 
 Legislature to grant a divorce in Ireland, though the Act iti 
 does not operate in that country/ 
 
 Where a Bill is introduced by the husband, and the wife 
 no means to defend herself with, the House of Lords will or 
 the husband to pay the wife a small sum to enable her to mi 
 her defence.^ 
 
 The following are some of the chief points of difference betw{ 
 the English and Irish law on this subject : ^ 
 Decree of judi- In England a husband or wife against whom a decree of ju 
 cannot'b™ '°" cial Separation has been pronounced, may present a petition 
 n versed. ^-^j ^Jjj^q thereafter praying for a reversal of the decree, on i 
 ground that it was obtained in his or her absence. This can; 
 be done in Ireland. 
 Husband may In England a husband may present a petition praying the c 
 England Solution of his marriage on the ground of the adultery of his w 
 
 Hncido but ^^7 make the adulterer a co-respondent, and may claim dama| 
 not in against him; and the Court has power, after a verdict 
 
 damages, to direct that the whole or any part shall be settled 
 the benefit of the children of the marriage, or as a provision 
 the maintenence of the wife ; and in addition may order the ad 
 terer, who has been made a co-respondent, to pay the whole 
 any part of the costs of the proceedings. In Ireland these thii 
 cannot be done. 
 Wife may In England a wife may petition for a dissolution of her m 
 
 a vinculo in riage on the ground of the adultery of her husband, coupled w 
 LoTinheiand. cruelty, Or adultery coupled with desertion for two years, 
 bigamous or incestuous adultery. In, Ireland she cannot obt 
 this relief. 
 
 In other matters, however, such as the proof and effect 
 adultery, cruelty, or condonation of those offences, the method 
 bringing suits for nullity, or judicial separation, and the li 
 there is no such striking difference between the law in the t 
 countries as calls for special mark or mention, 
 
 '■ Westropp's Divorce Bill, ii App. Gas. 294; Oifford's Divorce Hill, 12 App. C 
 362. Both these bills were introduced into the House of Lords, on behalf of wives 
 dissolve the matrimonial tie with their husbands, in which cruelty as well as adul 
 was alleged against the respondent. 
 
 - A.'s Divorce Bill, 12 App. Gas. 365. 
 
 ^ Extracted from Mr. Kisbey's work, pp. 2-4. 
 
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CHAPTER V. 
 
 IMPEDIMENTS TO MARRIAGE. 
 
 PAGE 
 
 Distinction between Effects of Canonical and Civil 
 
 Disabilities 62 
 
 Distinction between Void and Voidable Maeeiaqb . . 62 
 
 Canonical Disability : Impotenct 63 
 
 Suit fob Nullity to be bkoug-i-it in Lifetime of both 
 
 Paeties 63 
 
 Impediment must exist at time of Maeeiagb . . 64 
 
 Teibnnial Cohabitation 65 
 
 When not Eequieed . ... 65 
 
 Mbbb Delay no Bab to Suit ... .66 
 
 Want op Consent op Paeties : Eeeoe . ... 67 
 
 Feaud '68 
 
 When Relief Geanted. . . . 69 
 
 When not Geanted 69 
 
 Dubbss .... . . . -7° 
 
 Maeeiage Voidable 70 
 
 Feae of Haem Nbcessaey Ingeedient ... 71 
 Scott v. Sbbeight ... ... 72 
 
 Abduction ... . ... 73 
 
 Civil Disabilities : Nonage I . . • • • 73 
 
 Effect op Maeeiage Conteacted 
 
 WITHIN Age 74 
 
 Ceiminal Law Amendment Act, 
 
 1885 75 
 
 Insanity . -75 
 
 BUBDEN OP PEOOP OF SANITY 77 
 
 Deunkenness .... 77 
 
 Relationship within the Peohibitbd Degebes : 5 & 6 
 
 William IV. c. 54 78 
 
 Affinity -79 
 
 Maeeiage with Dead Wipe's Sistbe . . .79 
 
 Peevious Maeeiage: Bigamy ... . . 80 
 
 Lapse of Time no Bae to Suit 80 
 
 Bigamy a Felony 81 
 
 Seven Yeaes' Absence op Spouse not now in- 
 sisted ON 82 
 
 FiEST Maeeiage, Steict Peoof of . . . .82 
 
 FOBBIGN DIVOECE : COMPETENCY OP FOEBIGN COUET 
 
 TO PEONOUNOB ^3 
 
 Royal Maeeiage Act : 12 Geo. IIL c. ii . . .84 
 
 Act not confined to Royal MaeEiages in England . 84 
 
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62 HUSBAND AND WIFE. [pa 
 
 Distinction There are two kinds of disabilities constituting impedim 
 
 oanonfcli and to lawful and valid marriage, namely — canonical and c 
 
 civil disa-biii- According to English law, there is an important distinc 
 
 effect. between the two in the eflfecfc they have upon the marriage. 
 
 Canonical. canonical disabilities, such as . . . certain corporal infirmities, ( 
 
 make the marriage voidable, and not ipso facto void, until sentc 
 
 of nullity be obtained ; and such marriages are esteemed v 
 
 unto all civil purposes, unless such sentence of nullity is acta 
 
 Civil. declared during the lifetime of the parties. Civil disabilities, i 
 
 prior marriage, want of age, idiocy, and the like (and now ri 
 
 tionship within the prohibited degrees) make the contract ^ 
 
 ab initio, not merely voidable ; these do not dissolve a conti 
 
 already made, but they render thei parties incapable of contri 
 
 ing at all : ' and any union formed between the parties is me 
 
 tricious, and not matrimonial. 
 
 Void marriage. A marriage is termed void, when it is good for no legal p 
 
 pose ; and its invalidity may -be maintained in any proceedi: 
 
 in any court, between any parties, whether in the lifetime or ai 
 
 the death of the supposed husband and wife, and whether 1 
 
 question arises directly or collaterally.^ 
 
 The grounds on which marriage is held void ah initio are bas 
 on public policy, and are not peculiar to the contracting parti( 
 they are also mostly the subject of statutory enactments. 
 Voidable A marriage is voidable, when in its constitution there is 
 
 iiia'ge- imperfection which can be inquired into only during the lifetii 
 of both ,of the parties in a proceeding carried on for the ve 
 purpose of obtaining a sentence declaring it null. Until i 
 aside, it is practically valid ; when set aside, it is rendered vc 
 from the. beginning.^ This distinction between void and voidal 
 arose from the interference of the temporal courts, acquired und 
 32 Henry VIII. c. 38, which in such cases prohibited the spiriti 
 courts from bastardizing the issue after the death of one of t 
 parties ... for void is voidable ah initio.'^ 
 
 These disabilities form grounds for suits for nullity of marriag 
 that is, for pronouncing the marriage null and void ; but a 
 treated under this heading, because, though necessarily raisi 
 after the ceremony of marriage has taken place, yet whi 
 proved they are held to be obstacles or impediments to a val 
 marriage. 
 
 ti^e'^lvnl".,"* ^^^ jurisdiction in these suits for nullity belonged exclusive 
 Court. to the ecclesiastical courts ; but after the passincr of 20 & ; 
 
 1 Elliott V. 6urr, 2 Phill. 16. 
 
 I ^J^L • ^"- ^"? 5^- "• ^°S' "t"S Shelford, Mar. and Div. 470-48^. 
 ^ Bish. Mar. and Div. s. 105, citing Elliott v. Gurr (ubi sup.). 
 * bee Jiay v. /Sherwood, i Curt. 173, 188. 
 
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CHAP. V.J IMPEDIMENTS TO MAERIAGE. 63 
 
 Vict. c. 85, such jurisdiction was transferred to the new court, 20 & 21 Vict. 
 called "The Court for Divorce and Matrimonial Causes." Section 6 "' ^^' ^' ^' 
 of that Act enacts : As soon as this Act shall come into opera- 
 tion, all jurisdiction now vested in or exercisable by any eccle- 
 siastical court or person in England in respect of . . . suits 
 of nullity of marriage . . . shall belong to and be vested in Her 
 Majesty, and such jurisdiction, together with the jurisdiction 
 conferred by this Act, shall be exercised in the name of Her 
 Majesty in a court of record called " The Court for Divorce and 
 Matrimonial Causes." 
 
 Canonical disability. — The only canonical disability now recog- Canonical 
 nized is the impotency of both or one of the parties to consum- i,'^potency 
 mate the marriage through some bodily defect.' Marriage having 
 been ordained for the procreation of children, a capacity for con- 
 summating it is implied in the marriage contract. Consummation 
 is one of the essential duties for which the parties stipulate, and 
 the incapacity of either party to satisfy that duty affords a ground 
 for nullifying the contract.^ It has also been said of marriage 
 that as its first cause and reason ought to be the design of having 
 an offspring, so the second ought to be the avoiding of fornica- 
 tion.' Thus, if either of the parties is unable to satisfy the 
 proper and reasonable expectations of the other, the courts will 
 relieve not only on the ground that the full terms of the contract 
 cannot be carried out, but also that the law will never compel 
 two persons to live together under such perilous conditions. 
 Impotency has been defined as consisting " in the incapacity for 
 copulation, or in the impossibility of accomplishing the act of pro- 
 creation." * 
 
 A suit for nullity, grounded on this disability, must be brought SuU for nullity 
 during the lifetime of the parties, and is no ground for impeach- bJ-ought durin<' 
 ing the validity of the marriasre after the death of either of *ii8 lifetime of 
 
 , .._■'. .,° ,. both parties. 
 
 the parties." It is open to either party to set up the impotency 
 of the other as a ground for nullity, but neither may set 
 up his or her impotency for the purpose of dissolving the 
 marriage.^ 
 
 There must be an impotentia copiclandi on the part of the man 
 or of the woman, preceding from malformation, frigidity, disease, 
 or some other like cause. It may arise from mere nervousness or 
 hysteria on the part of the woman, and where it is found that 
 
 1 B. Y. M., 2 Bob. Eocl. Eep. 580. It may be mentioned that the Code Civil does 
 not recognize tliie'as a ground for annulling a marriage. 
 ^ Dalrymple v. Dalrymple, 2 Hag. Con. Eep. 54, 62. 
 ^ Aylifie, rarer. 300 ; Briggs v. Morgan, 3 Phil], 324. 
 ■* Shelfnrd, Mar. and Div..202. 
 ^ A. V. B. and another, L. R. i P. & D. 559. 
 * Norton v. Seton, 3 Phill. 147. 
 
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61: 
 
 HUSBAND AND WIFE. 
 
 [pAEa 
 
 Impediment 
 must exist at 
 time of mar- 
 riage. 
 
 No decree, if 
 reasonable 
 hope of cure. 
 
 Order for in- 
 spection of 
 person. 
 
 Onus of proof 
 on petiticuer. 
 
 consummation is practically hopeless a decree of nullity will 
 made.' The impediment must exist at the time of the marriaj 
 and cannot be cured without endangering life,^ Impoten 
 supervening after marriage is no ground for nullity, though ar 
 ing from causes having their origin before marriage.^ If t 
 impotency be accidental, the presumption is that it began af^ 
 marriage ; if natural, the presumption is the reverse.^ If the 
 is a possibility that its cause may be removed, though such cure 
 highly improbable, the court will not decree a sentence of nuUit; 
 if by delay and adoption of reasonable medical means the cu 
 may be effected.^ There need not be any structural impedime: 
 to consummation, provided it is practically impossible ; ' and 
 appears that nullity may be decreed on the ground of the sexn 
 organs admitting only of partial connection.^ As a general ru] 
 the court will not grant a decree of nullity for impotency, wheth 
 arising from malformation or other cause, unless an order 
 inspect the respondent has been extracted from the registry at tl 
 instance of the party seeking for a decree ; and if the husband 
 charged with impotency, the court usually requires a medical ce 
 tificate to the effect that the woman is virgo intacta, and wp\ 
 viro ; " but where the suit is grounded on the malformation of tl 
 wife, the inspection of the husband is not usually ordered.'" Tl 
 court will decline to pronounce a marriage invalid on the unsu] 
 ported evidence of one of the parties," yet if the respondent wit! 
 draw himself or herself from out of the jurisdiction, any • answe: 
 admitting non-consummation can be received as evidence of it, 
 The calling on the respondent to submit to an operation is not 
 condition precedent to the petitioner's right of decree.'^ As 
 natural in suits of this nature, the onus of proof lies on the con 
 plaining party." 
 
 "Wilful and wrongful refusal of marital intercourse is not ( 
 itself sufficient to justify the court in declaring a marriage to I 
 null by reason of impotency. Eecent cases, however, establis 
 
 1 G. V. G., L. E. 2 P. & D. 287. L. V. P. f. c. P. cited in S. v. A., otherwise > 
 3 P. D. 72. 
 
 ^^ Dease v. Avelmg, 1 Rob. Ecol. Rep. 279 ; P. v. P. i Eocl. & Adm. Kep. 24S 
 Wtlhams v. Williams, 30 L. J. P. M. & A. 73. 
 
 ^ Prown V. Prown, i Hag. Eccl. Eep. 523 ; Priggs v. Morgan, 3 Phill. 324. 
 
 ^ Brown v. Prown (uii sup.). 
 
 ^ Stagg y. JEdgecombe, 32 L. J. P M & A i« 
 
 " Wetde V. Welde, 2 Lee 578. 
 
 ' G. V. G. (uU sup.) ; B. v. P. f. c. B., L. E. 3 P. & D. 126. 
 
 ^ Dease v. Aveling [uhi sup.). 
 
 " Pollard V. Wyhourn,i Hag. Eccl. Eep. 727. 
 
 "> P. T. L., f. 0. P. L. E. I P. & D. 639. 
 
 " U. f. c. J. V. /., 37 L. J. P. M. & A 7. 
 
 12 Sparrow v. Barrison, 3 Curt. 16 ; S. C.Barrison v. Barrison, 4 Moo. P. C, Q' 
 
 1= W. V. B., 30 L. J. P. M. & A. 73. 
 
 " C'lmo V. Cuno, L. E. 2 H, L. (Sc.) 300. 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAGE. 05 
 
 an inference tliat where a wife has not had intercourse with her 
 husband after a reasonable time for consummation of the marriage, 
 such refusal is due to a want of capacity.-' In such a case the Suit must be 
 petitioner must bring the suit within a reasonable time ; not too reMonabTe"^'" 
 soon, because the repugnance or scruples of the respondent may be *™®- 
 overcome, nor after the lapse of many years, as, for instance, nine 
 years, for the court would infer that there had been acquiescence 
 in the state of affairs of which complaint is made.^ 
 
 What is known as "triennial cohabitation" is generally required Triennial co- 
 before suits of nullity on this ground can be brought,^ or an order 
 for an inspection granted." So, where a wife brought her suit for nul- 
 lity on the ground of the impotency of the husband after cohabitation 
 for two years and ten months without consummation, there being no 
 visible defect in either, the court suspended its decree, but subse- 
 quently, on proof of cohabitation of the parties without consumma- 
 tion, made the decree.^ This period is required by the law as being 
 a reasonable and sufficient time to ascertain whether it is mere 
 coyness or nervousness in either of the parties, or whether 
 there is any physical incapacity. Such triennial cohabitation Triennial 
 need not have existed uninterruptedly, but sufficiently to satisfy need not be 
 the requirements of the court on the subject ; ° but it has been luuiterrupted. 
 held that where the interruption was for a considerable period, a 
 corresponding period of cohabitation must be made up beyond 
 the expired period of three years so as to complete three years 
 in which the parties must have been living as man and wife.^ 
 This rule as to triennial cohabitation is not a hard-and-fast one 
 to be applied in every case, but is relaxed where it is discovered 
 that there is a natural malformation or physical infirmity appa- 
 rent to the medical inspectors.' It only applies where the 
 impotency is left to be presumed from continual non-consumma- 
 tion ; for where the impotency can be plainly proved aliunde, the 
 court will never resort to it.' Thus, where impotency can be Triennial co- 
 at once ascertained, triennial cohabitation is not required ;" and required 
 a decree was granted where after a cohabitation of two years and p^tencyci'eariy 
 
 established, 
 
 I S. V. A., otherwise S., L. E. 3, P. & D. 72 ; 6. v. 6., L. E. 2, P. & D. 
 287. 
 
 ^ S. T. A., otherwise S. (uhi sup). But see B. v. M. 3 Eob. Eccl. Eep. 580. 
 
 ^ Sparrow v. Harrison, 3 Curt. 27 ; S. C. Harrison v. Harrison, 4 Moo. P. C. 96 ; 
 Welde V. Wdde, 2 Lee, 578. 
 
 ^ Aleson v. Aleson, 2 Lee, 556 ; Briqgs v. Morgan, 3 Phill. 329. 
 
 5 M. f. c, H V. H., 34 L. J. P. M. & A. 12. 
 
 ^ Bparrow v. Harrison, {uhi sup,). 
 
 ' Welde V. Welde, {uhi sup.). 
 
 ' Scott V. Jones, 2 Not. Cas. 36. 
 
 » H. f. c, F. V. JF., 34 L. J. P. M. & A. 66. 
 
 10 Briggs v. Morgan, {ubi sup.) ; O. v. T., 1 Eccl. & Adm. Kep. 389, where there 
 had been only three months' cohabitation with a husband impotent from incurable 
 malformation. 
 
 E 
 
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C6 HUSBAND AND WIFE. [paet 
 
 ten months consummation was found impracticable on the part 
 the woman, though there was no structural defect.' When on( 
 the fact is established that consummation is practically impossibl 
 the petitioner should be prompt in seeking relief from the cour 
 and sincere in the motive for so doiug ; and suits brought al 
 intuitu will be dismissed.'' Delay coupled with insincerity ar 
 unaccounted for operates as a fatal bar to the suit.' Bi 
 Mere delay no mere delay, however long continued, is no bar to a su 
 ''*'"• for nullity on this ground, provided the impotency of tl 
 
 respondent is proved/ and no particular number of yea; 
 constitutes a bar where there are not other circumstances besid( 
 the question of time operating against the promoter." Thus, i 
 Pollard V. Wyiourn,^ twelve years had elapsed; in Sparrow 
 Harrison,'' sixteen years; in Castleden v. Castleden,^ twenty-or 
 years ; and in a recent case,' seven years. But of course whei 
 there is great delay, there must be strict proof of the impotency 
 Where the petitioner has been guilty of adultery, but on tl 
 discovery of the misconduct has instituted a suit for nullity ( 
 marriage, and proves the impotence of the respondent, sue 
 misconduct does not amount to a want of sincerity so as 1 
 disentitle the petitioner to a decree of nullity.'" 
 
 An agreement between husband and wife (though not undt 
 
 seal) to live apart and not sue each other for any cause, either i 
 
 law or in equity, based upon the impotency of one of them, wi 
 
 be a bar to a suit for nullity, if the respondent has observed tl 
 
 terms of the agreement." 
 
 lutervention The Queen's Proctor is now enabled to intervene in suits ft 
 
 Prootorin^suits nullity ; and the court will not, except for very special circnn 
 
 for nullity. stances, shorten the period of time for a decree absolute to a les 
 
 period than six months.'^ 
 
 Want of There is another kind of impediment which renders marriage 
 
 parties founded ^'fiscted by it voidable, viz., want of consent on the part of hot 
 
 and dur' *™^''' °^ ^^^ °^ *'^® parties to the marriage, on the principle consensi 
 
 non conciibitus facit matrimonium. In a marriage of this kin 
 
 there is at the time of the solemnization an apparent consent, bii 
 
 the consent is not that of a person who is absolutely a free agen 
 
 1 fi. V. ft, L. E. 2P. &r>. 287. 
 
 2 M. f. ^., a v. C, L. E. 2 P. & D. 414 ; Cuno v. Cuno, L. E. 2 H. L. (So.) 3a 
 ir. f. c. H. V. S., 1 P. D. 405. 
 
 ■> B. V. B., 1 Eccl. & Adm. Eep. 248. ' 
 
 * Per Lord Chelmsford in Cuno t. Cuno (uhi siq).). 
 
 ' See B. V. M., 2 Eob. Eccl. 585. « i Hag 725 
 
 I 3 Curt. 27. 8 9H. L. Cas. 185. 
 
 ' M. otherwise D. v. Z)., 10 P. D. 75. 
 
 1° M. otherwise D. v. B. {ubi sup.). 
 
 '' Ahhidge v. Aldridge otherwise M., 13 P. D. 210. 
 
 18 36 & 37 Vict. ^;. 31, s. I ; M. f. c, B. V. B., L. R. 3 P. & D. 200. 
 
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CHAP, v.] IMPEDIMENTS TO MAREIAGE. (i7 
 
 ■or who is fully informed of the true state of affairs, but, on the 
 contrary, is that of a person who is under compulsion or is 
 intentionally deceived as to the essentials of the contract. This 
 impediment exists where the marriage is brought about under 
 circumstances of Error, Fraud, and Duress. Some text-writers 
 have held marriages so celebrated to be ipso jure void, but the 
 cases dealing with them go to show that they are to be classed in 
 the category of voidable ; for in each of them either a bill was 
 introduced into the House of Lords to dissolve the marriage, or a 
 suit was promoted in the Ecclesiastical Court to declare it null 
 and void. That which is null and void ab initio does not require 
 the sentence of any tribunal to set it aside and declare it null. 
 There is good sense in this, for what the law does not prohibit 
 private individuals may acquiesce in or waive ; and the consent 
 which has been tricked or wrung out of a person may afterwards 
 be freely and voluntarily given, and the original imperfection 
 cured. If cohabitation and the birth of children followed on a 
 marriage so obtained, the Divorce Court would be very loath to 
 pronounce it null and void. But, as was said by the Court in 
 Mather v. Ney,^ if the marriage be void ah initio, as oifending 
 against a statutory provision, no length of time can render it 
 valid ; cohabitation and the birth of children would not make it any 
 the less invalid. Another test may be applied, the validity of any 
 such marriage could not be tried in any purely lay tribunal, but 
 •only by suit for nullifying the marriage brought by one of the 
 parties in the Divorce Court ; for if the parties themselves did not 
 question the validity, third parties, whether directly or indirectly, 
 could not do so, for semper prcesumitur pro matrimonio. 
 
 Error. — The canonists enumerated four kinds of error, which 
 formed grounds for nullifying a marriage affected by them — viz.. 
 Error Persona:. : Error Conditionis : Error Fortuna: : and Error 
 Qualitatis?- 
 
 Error Personce is where one person is substituted for another, Error Persons. 
 as where Leah is substituted for Eachel. This is a good ground 
 for having a marriage set aside under circumstances of fraud. If 
 a person is so tricked at the marriage ceremony, the marriage 
 would be declared null and void.' This is the only mistake (that 
 is where deception has been practised) against which relief 
 would be granted, for the identity of the person to whom the 
 matrimonial consent has been given is in dispute. But a mere 
 mistake of name would be no ground for relief ; and where a man 
 
 1 3 M. & S. 265. 
 
 ^ Ayl. Par. 362, 363. 
 
 2 See Lord Campbell's remarks in Beg. v. Millis, 10 CI. & F. 785, as to persons 
 married in masquerade, whose marriages would not be held valid. 
 
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GS HUSBAND AND WIFE. [part 
 
 courts a woman whom lie thinks to be someone else, and in a total 
 different position to that in which she really is, and he marri 
 her, believing her to be that other woman, the marriage is vali 
 for he intends to marry the woman with whom he goes throug 
 the ceremony.' The party who is guilty of the fraud will not 1 
 allowed to avail himself of his own wrong ; but the party whos 
 consent is fraudulently obtained in this manner may by subsequei 
 cohabitation cure the imperfection and render the marriage goo 
 for all purposes. 
 Errm- Con- Errov ConcLiHonis is where a man thinking to marry a fre 
 
 (litioms. -IT 
 
 woman marries a bond woman. 
 
 Error Fortunie. Urror Fovtunw is where one thinking to marry a rich spouE 
 has in truth married a poor one. 
 
 Error Qualitatis is where a man believing a woman to be 
 virgin or of noble birth discovers her to be no virgin or of mea 
 birth. But none of these three last mistakes are now grounds fc 
 nullifying a marriage, for they are mistakes as to accidentals an 
 not essentials ; even fraud practised as to the spouse's family i 
 immaterial ; a man who thinks to wed a duke's daughter but find 
 he is united to a scullion's drab has no redress.^ Where the contrac 
 of marriage is executory only, if the existence of a fortune wei 
 stipulated for as a condition precedent to the marriage, and on 
 party discovered that the fortune of the other was non-existeni 
 such want of fortune would form a good defence to an action basei 
 on a breach of promise to marry ; so, too, if a man were to dis 
 cover that the woman whom he thought to be and had courted a 
 a virgin had led an immoral life, he would be entitled to break ol 
 his engagement to marry her.^ But not to be bound to an agree 
 ment and to annul an existing contract are two different things. 
 
 Fraud. Fraud. — The marriage contract is the most important a ma: 
 
 can enter into, and public policy requires that it shall be honest! 
 made and carried through ; so the law protects those who ai 
 made amenable to the dishonest practices of persons who, froi 
 interested or unworthy motives, fraudulently bring about 
 marriage to which one of the contracting parties gives but a; 
 unwilling assent. In the case of persons of tender age th 
 Court will readily interfere to redress a wrong ; but in tL 
 case of adults the fraud perpetrated must be in respect ( 
 the essentials and not mere accidentals of the marriage ti 
 to entitle the defrauded party to set the marriage aside 
 
 When fraud Thus, it has been laid down, that apart from anv question ( 
 
 relipven -^ J ^ 
 
 *S*i"8*- I Beau Fielding's Case, Howell's State Trials, vol. xiv. p. 1327. 
 
 - See Wakefield y. Maclcay 1 Phil. 134 «. 
 
 " See post, chap-, vii. 
 
 ' See Waicefield v. Mackatj [uhi sup.). 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAC4E. 60 
 
 duress or force, where there is considerable weakness of mind 
 circumTented by proportionate fraud, whether practised on his 
 ward by a party who stands in the relation of guardian,' or by a 
 trustee on his cestui que trust over whom he has obtained a great 
 ascendency,^ the marriage so brought about will be set aside.^ It 
 has been recently held that a grown woman tricked (and coerced) 
 into believing that some untoward mishap (such as bankruptcy or 
 actions at the suit of creditors) would ensue unless she married is 
 entitled to relief against the man, and have the marriage set aside."* 
 
 Marriage brought about by a conspiracy may, under certain Conspiracy 
 eircumstances, be set aside, as where two or more conspire to make J^^e™''^* 
 another person drunk, who while in that state is made to go 
 through the form of marriage.^ 
 
 Where the fraud is brought about by a conspiracy, but the When Dot. 
 party against whom the marriage is sought to be set aside was 
 not one of the conspirators, but was ignorant of the fraud, the 
 Court would not pronounce the marriage invalid." Where 
 marriage is the voluntary act of a person, though brought about 
 by the machinations of other persons, it is good for all purposes 
 and cannot be set aside ; thus, though a very young man, even 
 under age, but capable of consenting, is entrapped by a deliberate 
 plot conceived by designing persons into a marriage with a person 
 socially much beneath him ; yet, if he consent, the Court will not 
 relieve, for his consent is his own act, however induced.' 
 
 Fraud as to the spouse's family or fortune is no ground for When relief 
 
 setting the marriage aside. " A man who means to act upon 
 
 such representations should verify them by his own inquiries. 
 
 The law presumes that he uses due caution in a matter in which 
 
 his happiness for life is so materially involved, and it makes no 
 
 provision for the relief of a blind credulity however it may have 
 
 been produced."* So, too, a false representation by a woman 
 
 that she is a virgin and chaste, when in reality she is not a 
 
 virgin but a prostitute, is not a ground for setting a marriage 
 
 aside.' But if a man marry an unchaste woman, her post-nuptial 
 
 anchastity would be a ground for divorce, if his conduct did not 
 
 conduce to it.'" 
 
 ' Harfm-d v. Morris, 2 Hag. Con. R. 423. 
 
 - Barl of Portsmouth v. Countess of Portsmouth, i Hag. Eccl. R. ^55. 
 ^ So in the case of JUiss Turner, Sex v. Wakefield, 2 Lew. Cr. C)ae. i ; 6g Ann. 
 Register, 316; Turner's Nullity of Marriage Bill, 17 Hans. Pari. Deb., N. S. 1133. 
 
 * Scott, {. c, Sebright v. Sebright, 12 P. D. 21. For remarks on this case, see post, 
 p. 72. 
 
 ° See Sidlivan v. Sullivan, 2 Hag. Con. R. 238 ; Gore v. Gibson, 13 M. & W. 62.3. 
 
 * See Bex t. Inhabitants of Birmingham, 8 B. & C. 29. 
 ' See Sullivan v. Sullivan, (ubi sup.). 
 
 " Per Lord Stowell in Wakefield v. Mackay, : Phil. 134 n. 
 
 ' See Perriio v. Perrin, r Add. Eccl. i ; Beeves v. Beeves, 2 Phil. 125. 
 
 "> Per Lord Penzance in Baylis v. Baylis, i P. & D. 395. 
 
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70 
 
 HUSBAND AND WIFE. [part i 
 
 Fraud which brings about a mistaken notion in one party tc 
 the marriage as to the character, fortune, or health of the othei 
 party does not render the marriage void, for such are the acci- 
 dentals and not essentials of the contract.' Fraud that would 
 not entitle the defrauded person to a decree of nullity might sc 
 justify him in not fulfilling his promise as to render him harmless 
 in the matter of damages for the breach. The party whose 
 consent has been obtained by fraud may by subsequent cohabi- 
 tation cure the original defect, and render the marriage good 
 for all purposes. 
 
 The party guilty of the fraud will not be allowed to avail him- 
 self of his own wrong. 
 vures>. Duress, or Force.— Daxeas is that harsh constraint which is 
 
 illegally applied by one person to another, and may be either cor- 
 poreal or mental. Corporeal is where the constraint takes 
 the form of blows, rough usage, or confinement; and mental, 
 where threats or menaces or terrorising acts and words are used, 
 A marriage brought about by duress is de facto a marriage, 
 and cannot be avoided until proved to be purely the effect ol 
 compulsion, and not the result of a choice (unbiassed by fear 
 between the consequences of compliance or refusal ; but there 
 must be an absolute unwillingness in the breast of the partj 
 coerced, though the lips speak the words of consent.^ 
 Marriage j^ jj^s been debated whether a marriage brought about bj 
 
 compulsion is void de facto as well as de jure, so that it does nol 
 need the sentence of any Court to pronounce it invalid, or whethei 
 it is voidable only. The better opinion would seem to be tha' 
 above stated on the text, that is, voidable only ; for the want o: 
 consent may be purged away by subsequent and spontaneoni 
 cohabitation, from which the true matrimonial consent may b< 
 inferred. Any contract void ah initio is as though it neve: 
 existed, and cannot be ratified, whether the avoiding of sucl 
 contract depend on its being contrary to public policy or thi 
 result of direct statutory provision. 
 Uuautum of " It has Sometimes been said that in order to avoid a contrac 
 
 i with the entered into through fear, the fear must be such as would com 
 
 the^persorf P®^ ^ person of Ordinary courage and resolution to yield to it. 
 affected. (Jq not think that is an accurate statement of the law. Whenevei 
 
 from natural weakness of intellect or from fear, whether reasoD 
 ably entertained or not, either party is actually in a state c 
 mental incompetence to resist pressure improperly brought t 
 
 1 Wakefield v. Mackay (vK svp.). 
 
 ^ " Si patre cogente duoit uxcirem quam non duoeret, si sui arbitrii esset contrax 
 tamen matrimonium quod inter invitos non contrahitur maluiase lioc videtur." See Cor 
 Dig. Baron et Feme (B 6). 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAGE. 71 
 
 bear, there is no more consent than in the case of a person of 
 stronger intellect and more robust courage yielding to a more 
 serious danger. Whether the cause assigned for the mental 
 condition is adequate or not is immaterial. The difficulty con- 
 sists not in any uncertainty of the law on the subject, but in its 
 application to the facts of each individual case.'" 
 
 Fear of some untoward circumstance happening (not necessarily Fear of hanu 
 to the party coerced, but to some third person whose interests gredientf ™ 
 are a concern to the party coerced) is a necessary ingredient. 
 Thus, where a young girl was taken away from school, hurried 
 about from place to place abroad, and then married by one of her 
 guardians, the marriage was set aside on the ground of fraud and 
 duress ; and it was laid down that if the girl acted under terror 
 at a time when the marriage was solemnized, that was a reason 
 for setting it aside." So, too, in the case of another young girl 
 enticed away from school, and married at Gretna Green in conse- 
 quence of a lying tale told her of her father's desperate straits, 
 and of his certain ruin unless she married the conspirator who 
 had taken her off, which tale she believed, and in her terror 
 acted on, the marriage was set aside by a Bill introduced into 
 Parliament.' The mei-e undesirableness and even impropriety of 
 the match, though brought about by a considerable degree of 
 pressure, is not a ground for pronouncing the marriage null and 
 void, if evidence of the want of free consent is lacking. A young 
 lady, eighteen years of age, entitled to considerable property (her 
 parents being dead), spending her holidays at the house of 
 one of the executors named in her father's will, whom she con- 
 sidered as her guardian, was induced by his brother (a man of 
 fifty-two years of age), who was residing in the same house, to 
 promise to marry him ; a few days afterwards she withdrew that 
 promise, but was importuned again, and prevailed upon to renew 
 it. The marriage was celebrated without the knowledge of any 
 of her friends, upon a false statement made by the husband as to 
 her age and residence in the publication of the banns and in the 
 marriage register. There was no cohabitation or consummation. 
 After a few days she went to a friend's house, and by his advice 
 applied for an Act to annul the marriage. The introducer of the 
 Bill for annulling the marriage refused to move its second reading, 
 as it did not appear in evidence that the marriage was not cele- 
 brated with the free consent of the wife, and the bill was lost.* 
 
 ^ Per Butt, J. in Scott v. Sebright, 12 P. D. 24, based on Ayl. Par. 362 ; Shelf. 
 Mar. & Div. 214, and Bish. Mar. & Div. § 211. 
 
 ^ Harford v. Morris, 2 Hag. Con. R. 423. 
 
 2 Turner's Nullity Bill, 17 Hans. Pari. Deb., N. S. 1 133 ; Bex v. Wakefield 2 Lew. 
 Cr. Cas. I ; 69 Ann. Eeg. 316. 
 
 ^ Field's Nullity Bill, 2 H. L. Cas. 48. 
 
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Scott V. 
 Schnght. 
 
 Crane v, 
 Crave. 
 
 72 HUSBAND AND WIFE. [pari i 
 
 The strongest case to be found in the books of relief grantee 
 on the ground of duress is quite a recent one ; and in it tb 
 doctrine has been carried further than in any of the earliei 
 decisions; indeed, considering the facts of the case and the coursf 
 taken in its conduct (the respondent offering no evidence in con- 
 tradiction, except on one particular) the decision can hardly be 
 regarded as satisfactory and supplying the leading principles tc 
 be followed. The learned President of the Probate and Admiraltj 
 Division (Sir 0. P. Butt) felt a doubt whether he had all th( 
 facts that ought to have been made known to him ; but, notwith 
 standing that doubt, he felt at liberty to act on the facts thai 
 were before him.' They disclosed that the petitioner, a youn^ 
 woman twenty-two years of age, and not a person of weak mine 
 or apparently of an impressionable nature, had got herself int( 
 money difficulties, and though she may not have desired to marrj 
 the respondent at the exact time she did, yet she was not un^ 
 willing to get herself out of the pecuniary scrape by marrying 
 him. The learned judge found that she had been reduced bj 
 mental and bodily suffering to a state in which she was incapabli 
 of offering resistance to coercion and threats, which in her norma 
 condition she would have treated with contempt, and that then 
 never was any such consent on her part as the law requires fo 
 the making of a contract of marriage. But putting the threa 
 of personal violence out of the case, it is difficult to see how shi 
 was not a free agent at the time of the marriage. 
 Cooim; i. c, In a later case the court, acting on the principle that where 
 person of full age and sound mind has gone through the ceremon; 
 
 ' The facts, shortly, were these : The petitioner, a youBg woman, and entitled to 
 considerable sum of money both in possession and reversion, became engaged to I 
 mai-ried to the respondent. Soon after she became of age she was induced by him \ 
 back his bills to the amount of over :^3000. The discounters of the bills issued writs ai 
 threatened bankruptcy proceedings against her for non-payment of the sums. Thee 
 threats preyed upon her mind and to some extent affected her health. The responder 
 suggested that the best and only way out of the difficulty was to marry him ; and si 
 went through the form of ceremony at a registrar's office. The marriage was nevi 
 consummated. On these facts, Butt, J., pronounced a, decree of nullity. The moi 
 weighty piece of evidence given to show duress or coercion was that some monll 
 previous to the marriage the respondent had pointed a pistol at her, and on the day 
 the marriage threatened to shoot her if she showed she was not acting voluntaril 
 But there was nothing to connect the pointing of the pistol in the May previous ai 
 the threat on the day of the marriage ; and as the respondent did not go into the b( 
 for the purpose of denying any of the allegations (except one), the court acted on tl 
 sole word of the petitioner. The other piece of evidence that went to show that tl 
 petitioner did not really give any consent was her flinging the wedding-ring on the flo 
 of the office as soon as it was put on her finger, but that might have been done in 
 momentary feeling of anger, and it is inconsistent with her statement that any act ( 
 her part, showing she was not consenting to what was going on, would render h 
 liable to be shot. If every reluctant bride were afterwards to show that she did ii 
 really consent to marry, but was coerced by reason of her own or her parents' affai 
 being in a desperate condition, and such a complaint were held to be good ground I 
 setting aside the marriage, the judges of the Divorce Court would have very little tii 
 for work which was not pronouncing decrees of nullity. 
 
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CHAP. V.J IMPEDIMENTS TO MARRIAC4E. 73 
 
 of marriage publicly in the presence of witnesseg who discovered 
 nothing in her demeanour to suggest constraint, and had com- 
 plied with the formality of signing her name and answering 
 questions without apparent difficulty or compulsion, held that very 
 clear and cogent evidence must be given before the presumption of 
 consent can be rebutted and the marriage annulled, and declined to 
 set aside the marriage, though the petitioner, a young woman of 
 twenty-five years of age, was of a weak and impressionable 
 character and without much power of resistance to a stronger will, 
 and the respondent had suddenly taken her into church after 
 saying, " You must come into the church and ma.rry me, or I 
 will blow my brains out, and you will be responsible." The 
 petitioner went through the marriage ceremony without showing 
 any signs of unwillingness, repeated the responses in an audible 
 tone, and signed the register in a clear, firm hand. After the 
 ceremony the respondent took the petitioner home, and left her 
 at the door of the house. The marriage was never consummated, 
 and the parties never saw each other afterwards, though they 
 corresponded, but always on the footing of cousins (as they were) 
 and not as husband and wife.^ 
 
 If a man by force takes away or detains against her will any Abduction. 
 woman of any age with intent to marry her (and whether he 
 marries her or not is immaterial), he may be indicted for abduc- 
 tion.^ 
 
 Civil Disabilities. — The other impediments to marriage, or Civil Dis- 
 grounds for nullity, are civil, and their operation is to make the 
 marriage void, and not merely voidable. Suits grounded on civil 
 impediments may be brought by interested parties other than 
 those who have gone through the ceremony of marriage ; while 
 a suit grounded on an allegation of impotency or of want of free 
 consent can be brought only by the person who alleges that he 
 or she suffers from the injury done by the non-consummation of 
 the marriage, or that his or her consent has been obtained by 
 some mistake or fraud or coercion. These impediments are (i) 
 Nonage ; (2) Insanity ; (3) Consanguinity and Affinity, or 
 Eelationship within the Prohibited Degrees ; (4) Previous 
 Marriage. 
 
 ( I ) Nonage. — Nonage, or want of age of the contracting parties, Nonage. 
 operates to render the marriage void, on the twofold ground of a 
 want of consent and the immaturity of the bodies or body of both 
 parties or of one party to the engagement. The English law, Age of matri- 
 following the canon law, has fixed the age of matrimonial consent ^ntrfourteeu 
 
 in males ; 
 
 ' Cooper, f. c, Crane v. Crane [1891], P. 369. 
 - 24 & 25 Vict. c. 100, s. 54. 
 
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74 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 twelve in 
 femarles. 
 
 Effect of 
 marriage con- 
 tracted be- 
 tween persons 
 within affe. 
 
 Marriages of 
 infants under 
 seven void. 
 
 at fourteen in the male, and twelve in the female, on the assump- 
 tion that the sexes are at those respective ages capable of 
 appreciating the responsibilities and performing the duties of 
 marriage. By the common law persons may marry at any age, 
 and if they marry under the age of consent, they are husband and 
 wife till disagreement.' 
 
 The question whether marriages contracted between persons 
 under the age of consent are void or voidable, is not without 
 some difficulty, for there are expressions in some of the authori- 
 ties which warrant the assumption that at the utmost such are 
 only voidable. Thus Coke says " that when her husband dies, a 
 wife who has attained the age of nine years, shall be admitted to 
 dower of whatsoever her husband be seised, albeit he were but 
 four years old." ^ If the female child were not a wife, she 
 could not be dowable, though the husband has not reached even 
 the age of seven, when he might be proved to have consented, 
 and understood the meaning of his acts. The explanation of this 
 may be found in what Swinburne" says of children who are 
 yet impuheres, that they cannot contract matrimony, or spousals 
 de prcesenti, but only de fioturo, and that when either party attains 
 the age of puberty, he or she can " resile " from the contract, or 
 confirm it, and need not be married again. Such marriages do 
 not require the decision or sentence of a court to render them 
 invalid and void. Though, strictly speaking, these marriages are 
 inchoate or imperfect, yet they were not treated by the courts as 
 void* It seems however, to be clear law now that as contracts 
 per verba de prcesenti or de futuro cannot be enforced, marriages 
 of infants under seven must be absolutely void. The law on 
 
 ^ Com. Dig., Baron and Feme, B. 5 & 6. The following is a table of the marriage- 
 able ages of males and females in the principal countries of Europe : — 
 
 Country. 
 Austria . 
 
 Belgium . 
 
 Denmark 
 
 France . 
 
 Greece . 
 Italy . 
 Netherlands . 
 Portugal 
 Prussia . 
 
 Eussia (generally) 
 Norway . 
 Sweden . 
 
 Switzerland . 
 
 Males. 
 
 jRom. Oath. . 
 '4 tOrth. Grk. Ch. 
 18 Prot. . 
 
 15? 
 
 18 
 
 18 
 
 14 
 18 
 18 
 20 
 21 
 
 14-20 
 
 Females. 
 
 J Rom. Cath. 
 '^ jOrth. Grk. Ch. 
 Prot. 
 I Dispensation for 
 5 I serious motives. 
 Ditto. 
 
 16 
 16 
 12 
 
 IS 
 16 
 12 
 
 14 
 i6 
 l6 
 IS 
 
 12-18 
 
 (Dispensation pos- 
 1 sible, but rare. 
 
 Turkey has no particular time or age returned. 
 
 I Varying in different 
 1 Cantons. 
 
 Co. Litt. 33 a. 
 
 = Sect. 7, p. 25. 
 
 * Mliot V. Gurr, 2 Phill. 16. 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAGE. 75 
 
 this subject may be shortly summed up thus : (a) Where both 
 parties or one, are or is seven years o£ age^ or is under seven Marriages of 
 years, the marriage is absolutely void ; (&) Where both parties or iweeu^even 
 one are or is above seven and under fourteen and twelve respect- ^offlabi"^'®?"' 
 ively, the marriage is imperfect and inchoate, depending for its their election ; 
 validity in the first case on the consent of both on reaching the 
 respective marriageable ages ; and in the second case on the over fom-teeu 
 consent of that party who is under the marriageable age on respectively 
 reaching that period ; (c) Where the parties are above fourteen '^^^'^ s°°^- 
 and twelve respectively and under twenty-one, the marriage, if 
 with the consent of parents or guardians, is clearly good, and 
 even without such consent. Where marriage is had without the 
 consent of parents or guardians, the ofiending party is punished 
 by forfeiting his or her interest in any property which has accrued 
 by force of the marriage.' 
 
 In 1885 the Criminal Law Amendment Act^ was passed, criminal Law- 
 making carnal connection with a girl under thirteen a felony,' aXisSs^" 
 and carnal connection with a girl between thirteen and sixteen a 
 misdemeanour." Bat these provisions do not alter in any way 
 the common law age of consent to marry ; and the connection in 
 both cases must be " unlawful," which is the word governing the 
 constitution of the offences ; and as that which is permitted by 
 the law is not " unlawful," the connection of the sexes following 
 on a marriage recognised by the law, though the wife may be 
 within the ages specified in the Act, is not unlawful and so 
 criminal. 
 
 (2) iTisanity. —Inaanitj, or want of reason, is a bar to marriage insanity a bar 
 on the ground that as without consent there can be no contract, rjage. ™^' 
 so where there is no reason there is no power to consent. Mere 
 weakness of understanding is not enough, but some sort of mental 
 derangement evidenced by overt acts and conduct of the imbecile 
 or lunatic* The difficulty in all these cases, as in other branches 
 of the law, is to determine what the true state and capacity of 
 the intellect of the alleged imbecile or lunatic was at the time of 
 the marriage; for the exact time and separation between reason 
 and incapacity may be difficult to be found and marked out in 
 the abstract, though it may not be difficult in most cases to decide 
 upon the result of the circumstances." The courts are inclined to The courts 
 be strict in applying the signs of mental derangement at the j^ug^gi^g of ^ 
 inception of this tie, and are not content to take as proof of a ^^^g^^a^j j^ 
 
 cases of mai- 
 
 1 4 Geo. IV. c. 76, s. 23. The consent of proper parties will be discussed lower riage contracts, 
 down in the next chapter, "The Essentials of a Valid Marriage," p. 87. 
 
 2 48 & 49 Vict. c. 69. 2 Sect. 4. ^ Sect. 5. 
 ^ jEarl of Portsmouth V. Countess of Portsmouth, i Hag. Ecol. Rep. 355. 
 
 * Browning v. Beane, 2 Phill. Eccl. Gas, 69 : Cannon v. Smalley, 10 P. D. 96. 
 
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76 
 
 HUSBAND AND WIFE. 
 
 [PAET I 
 
 MaiTiage con- 
 tracted be- 
 tween two 
 periods of 
 madness. 
 
 Acquiescence 
 during lucid 
 interval. 
 
 A person be- 
 coming sane 
 may institnte 
 proceedings to 
 set aside mar- 
 riage bad when 
 non-compos. 
 
 capacity to contract marriage, that which would certainly not be 
 accepted as evidence of a power to enter into other contracts, or 
 arrange the ordinary affairs of life. If the evidence shows that 
 the mind was diseased, the court will not inquire into the extent 
 of the derangement consequent upon the disease. On this point 
 Lord Penzance says : " If any contract more than another is 
 capable of being invalidated on the ground of the insanity of 
 either of the contracting parties, it should be the contract of 
 marriage, an act by which the parties bind their property and 
 their persons for the rest of their lives." ' But in a later case, 
 Sir J. Hannen said that "the contract of marriage is a very 
 simple one, which does not require a high degree of intelligence 
 to comprehend .... I agree . . . . that a mere comprehen- 
 sion of the words of the promises exchanged is not sufficient. 
 The mind of one of the parties may be capable of understanding 
 the language used, but may yet be affected by such delusions or 
 other symptoms of insanity, as may satisfy the tribunal that there 
 was not a real appreciation of the engagement apparently entered 
 into."^ Each case must be decided on its own facts; but one of 
 the tests of the capacity to understand the nature of the contract 
 is the absence or presence of morbid delusions on the subject of 
 marriage.' The insanity must have existed at the time of the 
 alleged marriage ; for if it supervene after the marriage is con- 
 tracted, it will form no ground for nullity.* A valid marriage 
 may be entered into in a lucid interval, between two periods of 
 madness or imbecility, provided the individual has not been found 
 lunatic by a commission." 
 
 The question whether marriages contracted by lunatics or 
 imbeciles can be made good and valid by acquiescence in them 
 on the return of reason, without going through a further cere- 
 mony, has not been debated much of late. Shelford says : " There 
 is authority for the proposition that a marriage by a non-compos, 
 when of unsound mind, is rendered valid by consummation during 
 a lucid interval." It might, however, be argued that both the 
 pohcy of the law, which should protect the weak against the strong, 
 would be against such a contention : and that a ratification of a 
 contract which never was a contract, is no ratification at all. 
 
 A person on recovering sanity may institute proceedings to set 
 aside a marriage had when non-compos ; and if insanity at the time 
 
 1 Hancoch, f. c, Peaty v. Peaty, L. E. i P. & D. 335. 
 ^ Durham v. Durham, 10 P. t). 82. 
 
 " Durham v. Durham (uU sup.) ; Hunter v. Edney, lo P. D. 93. See Ba%hs v. 
 Goodfellow, L. E. 5 Q. B. 549. 
 
 '' Pamell v. Parnell, 2 Hag. Con. Eep. 169. 
 
 ■' Turner v. Meyers, 1 Hag. Con. Eep. 414. See Hancoch v. Peaty {uhi sup.]. 
 
 '• Mar. and Div. 197, citing Ashe's Ca.ie, Pi-co. I'h. 703 ; Freeman, C. C. 259. 
 
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CHAP. V.J IMPEDIMENTS TO MARRIAGE. 77 
 
 of the formation of the contract is proved, the marriage will be 
 declared void.' A suit may be brought by a guardian to set 
 aside the marriage of one who was imbecile or of weak mind ; " 
 but the court will not pronounce its decree without the sanction 
 of the petitioner ; it will, however, proceed to try the issue of 
 sanity or insanity raised before it. The proper course to raise 
 the point of restoration to sanity is by motion for the court to 
 vacate its order appointing the guardian on the ground of the 
 lunatic's recovery.^ Suits for nullity on this ground are not 
 common, and are usually brought by or on behalf of the person 
 alleged to be insane at the. time of the marriage. 
 
 Where the insanity is proved to be permanent, the burden of Burden of 
 proof that the lunatic was sane at the time of the marriage is or*insanity°''" 
 cast upon the person alleging the sanity ; otherwise, the burden 
 of proof lies on the person alleging the insanity." So, too, where 
 the suit is brought not on behalf of the alleged lunatic but by the 
 other party to the contract, the burden of showing that the 
 respondent was insane at the time of the marriage lies on the 
 party asserting it f and if the capacity to understand the nature 
 of the contract is not impaired by such a mental condition as 
 melancholia, the presence of such an affliction does not entitle the 
 petitioner to a decree of nullity." 
 
 The marriages of persons found to be lunatics by commission Marriages of 
 are governed by 51 Geo. III. c. 37,'' which enacts that "in case Joun'^^t/co^- 
 any person who has been, or at any time hereafter shall be found mission. 
 a lunatic by any inquisition taken or to be taken by virtue of a l^^j^ ' 
 commission under the Great Seal of Great Britain and Ireland 
 respectively, or any lunatic or person under a frenzy, whose 
 person and estate by virtue of any Act of Parliament now or 
 hereafter shall be committed to the care and custody of particular 
 trustees, shall marry before he or she sh'all be declared of sane 
 mind by the Lord High Chancellor of Great Britain and Ireland, 
 &c., or such trustees as aforesaid, or the major part of them 
 respectively, as the nature of the case shall require, every such 
 marriage shall be and is hereby declared to be null and void to 
 all intents and purposes." 
 
 Drunkenness at the time of the marriage may or may not be Drunkenness, 
 a ground for nullity ; and it depends upon the circumstances sur- 
 rounding the inception of the contract whether the results flowing 
 
 ^ Turner v. Meyers, 1 Hag. Con. Eep. 414. 
 
 2 Wilkinson y. Wilkinson, 4 Notes of Cas. 295. 
 
 2 Saneock, f. c, Peaty v. Peaty, L. E. i P. & U. 335. 
 
 * Le Geyt v. O'Brien, Milw., Ir. Eccl. Eep. 325. 
 
 ^ Durham v. Dv/rkam, 10 P. & D. 80 ; Hmiter v. Kdneij, ihid. 93. 
 
 ^ Cannon v. Smalley, otherwise Cannon, ihid. 96. 
 
 ' This re-enacted 15 Geo. III., c. 30, and extended its provisions to Ireland. 
 
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78 HUSBAND AND WIFE. [part i. 
 
 from it are or are not modified by them. A person intoxicated, 
 though not absolutely dead-drunk, may enter into a valid contract, 
 provided fraud and trickery were not used to accomplish it.' 
 Drunkenness producing delirium tremens from time to time, but 
 not proper or permanent insanity, does not throw upon those who 
 desire to support the marriage the burden of proof that the person 
 so affected was capable of forming the contract.^ The case is 
 different where the marriage is celebrated, and one of the parties 
 is in a state of frenzy or delirium tremens proceeding from ex- 
 cessive drinking.^ The general law of Scotland and of the United 
 States is similar on these points;" and in those countries it is 
 held that a marriage celebrated during the drunkenness of both 
 or either of the parties will be held good, if acquiesced in, and 
 not disclaimed on the return of reason and sobriety. 
 Deaf and Deaf and dumb persons may contract a valid marriage, and 
 
 marriaffes'^^'^ the presumption of the court is in favour of such marriage, and 
 primdfacie casts the burden of proof of their incapacity upon those who 
 would impeach the marriage ; and the court, if satisfied with the 
 competency of the deaf and dumb, will not grant an issue to try 
 the validity of the marriage.' 
 Keiationship (3) Relationship ivithin the Prohibited Degrees. — This is an 
 pioMbited impediment to marriage created by consanguinity and affinity, and 
 degrees. ^g^g formerly a canonical bar, rendering the marriage only void- 
 
 Formerly ,, ^ •' „ , , , ' » ,,. ,,.•', 
 
 canonical able and annullable by sentence oi nullity passed during the 
 
 but no'rcMi lifetime of the parties ; but since Lord Lyndhurst's Act (5 & 6 
 
 in its effect. Wm. IV., c. 54), it has been constituted in its effect a civil 
 
 impediment rendering the marriage void. This statute, after 
 
 reciting that marriages between persons within the prohibited 
 
 degrees of consanguinity or aflBnity should be ipso facto void, and 
 
 5 i 6 Wm. IV. not merely voidable, proceeds to enact that " all marriages which 
 
 shall hereafter be celebrated between persons within the prohibited 
 
 degrees of consanguinity or affinity shall be absolutely null and 
 
 void to all intents and purposes whatsoever." Consanguinity is 
 
 Consanguinity, the relationship of parties who are descended from the same 
 
 ancestor, and is either in the direct or collateral line. In the 
 
 direct line of ancestors and descendants marriage is absolutely 
 
 unlawful, however remote the relationship may be. And in the 
 
 ^ See Gore v. Gibson, 13 M. & W. 623. 
 
 - Le Oeyt v. O'Brien, Milw. Ir. Eocl. Eep. 325 ; Parher v. ParTcer, 2 Lee, 382. 
 
 ' Le Oeyt v. O'Brien, (uM sm).). 
 
 ^ Fraser, H. & W. 72 ; Bish. Law of Mar. and Div., b. 131. 
 
 ^ Harrod v. Harrod, 23 L. T. 243. 
 
 ^ Sect. 2. This Act draws a distinction between affinity and consanguinity by 
 declaring that marriages celebrated before its passing (August 31, 1835) by persons 
 within the prohibited degrees of afBnity shall not be annulled unless decree pronounced 
 in a suit depending at the time of the passing of the Act (sec. i). This Act does not 
 extend to Scotland (sec. 3). 
 
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CHAP, v.] IMPEDIMENTS TO MAE,RIAC4E. 79 
 
 collateral line all beyond the first degree of the canon law 
 computation, or the third of the civil law, may contract valid 
 marriages. 
 
 Affinity is the relationship which arises from marriage, and Affinity 
 exists between one spouse and the relations of the other spouse, 
 and is an impediment to the same extent as consanguinity ;' but 
 the kindred of the one may marry the kindred of the other ;^ and 
 one of the spouses may marry the affinis of the other spouse, for 
 affinis mei affinis non est miJii affinis. Affinity by the law of <^''<'^te'i ^y , 
 
 -" •" . - , . marriage only. 
 
 England must be created by marriage, and carnal intercourse 
 is not sufficient.^ 
 
 By the operation of the unrepealed portion of 3 2 Hen. VIII. Table of pro- 
 c. 3 8 (the Statute of Pre-contracts), which incorporated the pro- pai-t of the 
 hibited degrees set out in 28 Hen. VIII., c. 7, and of the 99th ^"''"'^ '*^- 
 canon, the table of prohibited degrees compiled by Archbishop 
 Parker in 1563, and inserted in the Common Prayer Book (the 
 Levitical degrees),'' is a portion of the statute law of the realm, 
 and are binding both on the clergy and laity.* 
 
 The marriage of a domiciled Englishman with the sister of his Marriage with 
 dead wife is within the prohibited degrees above mentioned, and sister void, 
 void,* although celebrated in a country where such marriages 
 are valid.^ This rule applies equally to a naturalized British 
 subject, though by the law of the domicil of origin of the natu- 
 ralized subject, the marriage would have been valid. ^ 
 
 The status of illegitimacy does not prevent the operation of Prohibition 
 the law against marriages within the prohibited degrees both as ba,starda. 
 regards consanguinity and affinity ; for though, legally speaking, 
 a bastard is Jilius nulliiis, and has no relations, yet the decencies 
 of society and the purity of morals hinder the legal theory from 
 being logically carried out.' Thus, a marriage with the niece of 
 a dead wife was set aside, though the mother of the niece was an 
 illegitimate daughter of the dead wife's mother." 
 
 The relationship of the half-blood is equally aifected with the Relationship 
 
 by the half- 
 1 Sutler V. Gastrin, Gilb. Ch. 156. Wood affected. 
 
 ^ Shelf. Mar. & Div. 174. Oxenham v. Gayre, Bac. Abr. Mar. & Div. A. 
 ' Wing T. Taylor, f. 0. Wing, 30 L. J. P. M. & A. 258 ; Fagani v. Pagani, L. R. 
 I P. & D. 223. 
 
 * Leviticus, chap. viii. 
 
 5 Sherwood v. Ray, 1 Moo. P. C. 353. 
 
 * Bill T. Good, Vaugh. 302 ; Beg. v. Chadwicl; 17 L. J. Q. B. 8i. 
 
 *■ Brook V. Brooh, 9 H. L. Cas. 193. Whether, since the decision of the Court of 
 Appeal in Be Goodman's Trusts, 17 Ch. 266, these marriages will be held void for all 
 purposes, remains to be seen. See Forrestier v. Biuldicombe, W. N. 1881, 144. 
 
 8 Mette V. Mette, 28 L. J. P. M. & A. 117. 
 
 ^ Horner v. Horner, I Hag. Con. Rep. 337 ; Blachmore v. Brider, 2 Phill. 359, 
 Woods V. Woods, 2 Curt. 516 ; Beg. v. Braion, i 0. & K. 144 ; Beg. v. St.-Oiles-in-the- 
 Fields, 17 L. J. Q. B. 81. Compare the Roman law on the contuhernium of slaves, 
 which, thougli not recognised as m atrimonium, was not permitted to be incestuous. 
 1" Beg. V. Brighton, 30 L. J. M. C. 197. 
 
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80 HUSBAND AND WIFE. [part 
 
 whole blood by these prohibitions ; thus, the marriage of a ms 
 
 with a daughter of the half-sister of his dead wife is null an 
 
 void.' A widower married the niece of his dead wife, an 
 
 during the marriage married another woman. Though he m 
 
 found guilty of bigamy, the second marriage was declared void 
 
 The court will pronounce a decree of nullity in a case whei 
 
 both parties were at the time of the ceremony aware of this itn 
 
 pediment.'^ Such sentence is not necessary, as the marriage o 
 
 persons within the prohibited degrees is void ab initio. 
 
 Previous mar- (4) Pnvioios Marriage. — Another and important impedimen 
 
 ™s®' to a valid marriage is a pre-existing valid marriage on the part 
 
 both or either of the spouses ; that is, where the husband or wifi 
 
 of a prior legal marriage is living at the date of the ceremony 
 
 Bigamy a the second marriage. This second marriage is bigamous 
 
 felony. polygamous,^ and the contracting it is treated as a felony, anc 
 
 severely punishable by the criminal law. 
 
 Bigamous mar- A second marriage while the first is undissolved is null anc 
 
 voM witho^ut '^'^i^ without any sentence, although under such circumstances ai 
 
 sentence. would not render the bigamist criminally liable. The children 0; 
 
 Putative mar- the second marriage are in England illegitimate, though botl 
 
 "*^^' parties, or at any rate one of them, may have contracted th( 
 
 union in perfect good faith and in ignorance of the impedimeni 
 
 to their marriage.* This kind of marriage is called by the canoi 
 
 law matrimonium putativum, and is recognized by the Scotch law 
 
 which follows the canon, so far as to render the children of sucl 
 
 union legitimate, though the marriage itself be null. This alsc 
 
 seems to be the law in several of the United States.* 
 
 Lapse of time When suits for nullity are instituted on this ground, strici 
 
 no bar to the proof is required of the identity of the parties ; ^ but lapse oJ 
 
 bringingoft]ietin,eigj^o bar to the bringing of the suit.^ Misconduct also 
 
 however gross, of a party proceeding to annul a marriage bj 
 
 reason of bigamy is no bar to a sentence of nullity ; accordingly. 
 
 an allegation by a woman pleading misconduct and fraud on the 
 
 ^ Beg. V. Brighton, 30 L. J. M. C. 197. • 
 
 2 Beg. V. Allen, L. E. i C. C. 367. 
 
 2 Andrews, i. c, Boss v. Boss, 14 P. D. 15. In this case Miles v. Chilton, (l Eob, 
 684), was followed, which was a decision of an ecclesiastical court ; but in the earliei 
 case the respondent opposed the suit on the ground of the misconduct and fraud of thf 
 petitioner ; and the court had to dispose of the suit that was before it. 
 
 * What is defined in modern English law as " bigamy " was known to the canon \m 
 as " polygamy," for a " bigamist " was one who married a second time whether thf 
 consort of the previous marriage was alive or not, e.g., marrying two unmarried womec 
 in succession, or once marrying a widow. 
 
 ^ Be Wilson's Trusts, L. R. 1 Eq. 247. 
 
 8 Fraser, H. & "W., 137, and Parent and Child, 22 ; Bish. Laws of Mar. and Div, 
 s- 301. ' Searle v. Price, f. c. Searle, 2 Hag. Con. Eep. 187. 
 
 8 Johnston v. Parler, f. c. Johnston, 3 Phill. 39 ; Dvins v. Duins, otherxoise Donovan 
 3 Hagg. Eccl. Rep. 301. For sufficiency of evidence, see Bayard, I c, Morphewv 
 Morphew, 2 Phill. 321. 
 
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CHAP, v.] IMPEDIMENTS TO MAERIAGE. 81 
 
 part of the second husband, including his cognizance of the first 
 marriage at the time of the second, and of the first husband 
 being then alive, was rejected as insufficient to bar the sentence 
 of nullity.' 
 
 This ofEence was originally cognizable only in the ecclesiastical Offence origin- 
 courts, but was made a capital offence by i Jac. I. c. 1 1 . The fneociefrastioaJ 
 statute that now regulates the offence is 24 & 25 Vict. c. 100, f°i"n ''°^* 
 s. 5 7 : " Whosoever, being married, shall marry any other person 
 during the life of the former husband and wife, whether the 
 second marriage shall have taken place in England or Ireland, or 
 elsewhere, shall be guilty of felony ; and any such offence may be 
 dealt with, inquired of, tried, determined, and punished in any Punishment 
 county or place in England or Ireland where the offender shall be "" conviction. 
 apprehended, or be in custody, in the same manner, in all respects 
 as if the ofience had been actually committed in that county or 
 place; Provided that: (i) "Nothing in this section contained Exceptions, 
 shall extend to any second marriage contracted elsewhere than in 
 England or Ireland by any other than a subject of Her Majesty ; 
 (2) or to any person marrying a second time whose husband or Seven years' 
 wife shall have been continually absent from such person for the apouse not 
 space of seven years then last past, and shall not have been ^'^°'^^ *° ]"^ 
 
 '^ •' .... auve withm 
 
 known by such person to be living within that time ; (3 ) or that time 
 shall extend to any person who, at the time of such second |)°°orce from 
 marriage, shall have been divorced from the bond of the first ^^st marriage 
 marriage ; (4) or to any person whose former marriage shall have second good 
 been declared void by the sentence of any court of competent ^^^^^'of re- 
 jurisdiction." vious marriage 
 
 The first exception limits the liability for bigamy committed 
 elsewhere than in England or Ireland to subjects of the British 
 crown ; thus, a French subject marrying in England, then going 
 back to France and contracting a second marriage, subsisting 
 the first, would not be liable to the pains and penalties of this 
 section. 
 
 The second exception does not throw upon the prisoner the Onus of dis- 
 burden of proving that it was not known to him or her that the ledge as to 
 former wife or husband was living at the time of the celebration absenfspouse 
 of the second marriage. The usual presumption is that a person ^0^ thrown on 
 not proved to be dead within a reasonable time is still alive ; ^ 
 but the presumption in favour of innocence is still greater.' 
 Where, however, there is no evidence of separation, the accused Exception. 
 is bound to displace the presumption that he or she was aware 
 
 ^ Miles V. Chilton, i Eob. 684. 
 
 -' Heg. V. C'urgerwen, L. E. i C. C. E. I. 
 
 •' Bex V. Twyning, 2 B. & AW. 386. 
 
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82 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Seven years' 
 absence of 
 spouse not 
 now insisted 
 on. 
 
 The bond of 
 marriage ex- 
 ists until de- 
 cree absolute. 
 
 Strict proof of 
 first marriage. 
 
 of the existence of the other spouse at the time of the second 
 marriage.' 
 
 It is not now deemed necessary to wait for the seven years' 
 absence to be complete, if the accused marries a second time 
 within that period under a bond fide and reasonable belief that 
 the other spouse is dead.' While there is no strict irrebuttable 
 presumption in favour of the existence of human life, without 
 reference to accompanying circumstances, as the age or health of 
 the party ,^ yet where there are conflicting presumptions, the 
 presumption in favour of life will have most weight ; and in all 
 cases it is a question of fact for the jury.'' The absence for the 
 statutory period, or ignorance of the existence of the other 
 spouse, does not render the second marriage valid. 
 
 The third exception does not include a judicial separation or 
 divorce a mensd et thoro. The ligamen or vinculum matrimonii 
 still exists until it is legally and fully dissolved by the decree 
 dbsohde of the court of divorce/ and parties run a risk of being 
 indicted for bigamy if they contract a fresh marriage within the 
 time of appealing against such decree absolute. The Court will 
 relieve where, through inadvertence and mistake, the decree nisi 
 has not been made absolute and the parties have since married, 
 by making the decree absolute, notwithstanding the marriage, if 
 the Queen's Proctor does not oppose." 
 
 In an indictment for bigamy the first marriage must be strictly 
 proved, and mere reputation and cohabitation will not suffice ; ' 
 and it is doubtful whether the unsupported admission of the 
 defendant is enough.^ With reference to the second marriage, 
 it is sufficient if the parties ,go through the forms and ceremonies 
 
 ^ Beg. V. Jones, ii Q. B. D. ii8. 
 
 2 Meg. V. Tolson, 23 Q_. B. D. i68. In this case the majority of the Court for 
 Crown Oases Eeserved (nine to five) decided that, where a pritsoner was convicted of 
 bigamy, having gone through the ceremony of marriage wiiAim seven years of being 
 deserted by her husband, and the jury found that she went through the second marriage 
 in good faith and on reasonable grounds for believing her husband to be dead, her con- 
 viction ought to be quashed, as a bond fide belief on reasonable grounds in the death of 
 the husband ai the time of the second marriage was a good defence. The ingenious 
 judgment of Cave, J. (which seems to be the basis of the judgments of the majority) is 
 tantamount to a repeal of the seven years' limit within which one spouse deserted by the 
 other marries at bis or her risk ; only after seven years is knowledge or want of know- 
 ledge of the exietence of the deserting spouse material. The words of the section con- 
 stituting the offence are plain and unambiguous, and the seven years' period of con- 
 tinued absence was no doubt based on the assumption that a person absent and unheard 
 of for seven years was dead. It may be that such period should be shortened; hut that 
 requires an act of the legislature. 
 
 3 Shelf., Mar. and Div. 226'; Seg. v. Lumley, L. R. i C. C. R iq6 
 ■• Meg. V. Willshire, 6 Q. B. D. 366. 
 
 ^ Stanhope v. Stanhope, 11 P. D. 103. 
 '' Wickham v. Wickham, 6 P. D. 1 1 . 
 
 ' See Morris v. Miller, 4 Burr. 2057; Mirt v. Barlow, i Doug. 171. These cases 
 were actions of crim. con. 
 
 * Meg. V. Flaherty, 2 C. & K. 782 ; 
 Meg. Y. Upton, cited 3 Russ. Or. 315. 
 
 but see Rex v. Truman, 1 East, P. C. 470, and 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAGE. 83 
 
 legal and necessary in the place of celebration/ though the mar- 
 riage itself, from the circumstances attending it, is void, as not 
 being recognized by the law ; ^ but the form of ceremony must 
 be valid and recognized by the law of the place where it is 
 solemnized.^ 
 
 The sentence of divorce a vinculo matrimonii of an English Competency of 
 
 J T o • J. J. 1 J foreign court 
 
 marriage pronounced by a foreign court must be on grounds to dissolve an 
 sufficient to dissolve it in England, otherwise it will be no ^"s^'^i' ™"- 
 
 nage. 
 
 defence to an indictment for bigamy.^ The sentence of a court 
 of competent jurisdiction formerly was not, but is now, a 
 conclusive defence against an indictment for bigamy ; ^ but a 
 conviction for bigamy does not prevent a person setting up the 
 invalidity of his first marriage in a suit for nullity of the second 
 marriage." 
 
 The usual test applied by the English courts to foreign dissolu- Domicii test of 
 tions of English marriages is the domicii of the parties. A divorce ■'""^ '° '"''■ 
 of a foreign court has never been held to invalidate an English 
 marriage between English subjects where the parties were not 
 domiciled in the country by whose tribunals the divorce was 
 granted ; ' so, where the parties went to Scotland only for the 
 purpose of getting a divorce, and were not domiciled there, the 
 decree of divorce of the Scotch courts was held not to dissolve 
 the English marriage ; ' so, too, where the decree is obtained by 
 collusion.^ It is the same where one of the parties goes abroad, 
 and without having acquired a domicii in the foreign country 
 presents a petition for divorce, which is granted.^" But an 
 " English marriage " does not include every " marriage celebrated "English mar- 
 in England," so that where a domiciled Scotchman marries an not^fnoliid? 
 Englishwoman in England, and both go back to Scotland and everymamage 
 
 ° _ D J D ^ celebrated m 
 
 there reside, and one of them obtains a decree of divorce, even England. 
 upon a ground not capable of founding a divorce in England, 
 such divorce will be held good in England." A foreign court of 
 
 ^ Beg. V. AUen, L. E. i C. C. E. 367, disapproving of Seg. v. Fanning, 17 Ir. C. 
 li. 289. 
 
 ^ Beg. V. Brawn, i C. & K. 144. 
 
 3 Burt V. Bwt, 29 L. J. P. M. & A. 133. 
 
 * Beg. V. LolUy, 2 CI. & F. 567. For an explanation of this case see Harvey, 
 otherwise Farnie v. Farnie, 8 App. Cas. 43; and see jjosi, chap, xviii., "The International 
 Aspect of Mari'iage and Divorce." 
 
 ^ ihe JDuchess of Kingston's Case, 1 Leach 146. 
 
 * Bnuie V. Barke, j. Add. 471, 480. 
 
 '■ Slum V. Att.-Gen., L. E. 2 P. & D. 156 ; Green v. Oreen [1893], P. 89. 
 
 ' Conway v. Beazley, 3 Hag. Ecol. Eep. 639 ; Tollemache v. Tollemache, i Sw. & 
 Tr. 557 ; Dolphin v. Bobins, 29 L. J. P. M. & A. 11. See also M'Carthy v. Vecaix, 
 2 EuBS. & M. 614 ; but this case is no longer law. 
 
 ^ Bonaparte v. Bonaparte [^otherwise Megone) [1892], P. 402. 
 
 1" Briggs v. Briggs, 5 P. D. 163. 
 
 " Harvey, otherwise Farnie v. Farnie, 8 App. Cas. 43. This question of foreign 
 divorces is more fully treated in chapter xviii., on " The International Aspect of Marriage 
 and Divorce." 
 
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84 HUSBAND AND WIFE. [paet i. 
 
 competent jurisdiction may dissolve a marriage between a domi- 
 ciled Englishwoman and a domiciled subject of the country 
 whose court pronounces the decree on a ground for which in 
 England a decree of nullity only would be pronounced, and such 
 dissolution will be held valid for all purposes in this country.' 
 The Royal There is another kind of impediment to a valid marriage 
 
 Marriage Act. ^^^^^^^^^ Q^|y. ^ particular class in the realm, namely, the Eoyal ■ 
 Marriage Act/ which imposes upon certain members of the royal 
 family, descendants of King George II., the necessity of first 
 obtaining the consent of the reigning Sovereign of this country 
 to their marriage if under the age of twenty-five, or if over 
 twenty-five, the approbation of both Houses of Parliament to 
 their marriages. 
 
 No descendant of the body of King George II., male or female 
 (other than issue of princesses who have married or may have 
 married into foreign families), shall be capable of contracting 
 matrimony without the previous consent of the reigning Sovereign, 
 signified under the Great Seal and declared in Council; and 
 every marriage or matrimonial contract of any such descendant 
 without such consent first had and obtained shall be null and 
 void to all intents and purposes whatsoever.^ 
 
 In case any such descendant of the body of King George II., 
 being above the age of twenty-five years, shall persist in his or 
 her resolution to contract a marriage disapproved of or dissented 
 from by the reigning Sovereign, then such descendant, upon giv- 
 ing notice to the Privy Council, which notice is to be entered 
 in the books thereof, may at any time from the expiration of 
 twelve calendar months after such notice given to the Privy 
 Council, contract such marriage ; and his or her marriage, with 
 the person before proposed and rejected, may be duly solemnized', 
 without the previous consent of the Sovereign ; and such marriage 
 shall be good as if this Act had never been made, unless both 
 Houses of Parliament shall, before the expiration of the said 
 twelve months, expressly declare their disapprobation of such 
 intended marriage.^ 
 The Act is not The judges consulted by the House of Lords in the Sussex 
 mTriiages^ceie- Peerage Case ' unanimously decided that the operation of this 
 England! Statute was not limited to marriages celebrated within the king- 
 
 dom of Great Britain and Ireland, but extended to marriages entered 
 into by the descendants of George II. in foreign countries, and 
 the validity of the foreign marriages did not prevent this Act 
 
 1 Turner,/, c, Thompson v. Thompson, 13 P. D. 37. 
 
 '^ 12 Geo. III. c. II. - Sect. i. 
 
 '^ yeot. 2. II ci. &r. 85. 
 
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CHAP, v.] IMPEDIMENTS TO MARRIAGE. 85 
 
 from rendering them null and void. They held that the statute 
 does not enact an incapacity to contract matrimony within 
 one particular country, but to contract matrimony generally, and 
 in the abstract. It is an incapacity attaching itself to the 
 person of the individual affected by it, which he carries with him 
 wherever he goes ; ^ and the object of the Act would be 
 frustrated, and the mischief intended to be remedied would 
 remain unremedied, and the power of the Sovereign nugatory, if 
 a marriage which in England would be confessedly void should 
 be held good and valid when celebrated out of the country. 
 
 1 II CI. &F. 144. 
 
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CHAPTER VI. 
 
 THE ESSENTIAL REQUIREMENTS OF A 
 VALID MARRIAGE. 
 
 PAGE 
 
 Consent of Peopee Paeties .... . . 87 
 
 Want oe Consent no Invalidation of Maeeiage . . 88 
 
 FOKFEITITEB OF PeOPBETY TJNDEE 4 GEO. IV. C. 76, S. 23 . 89 
 
 Essential Kequieements of a Valid Maeeiage in Eng- 
 land : 
 Maeeiage in Accoedancb with Kites of Chuech of 
 
 England 9° 
 
 Publication of Banns 91 
 
 Due Publication : Teub Names 91 
 
 Mode of Publication 93 
 
 Special Licence 95 
 
 Common oe Oedinaey's Licence 95 
 
 Difpbebnce between Banns and Licence . . 96 
 
 Registeae's Ceetificate 97 
 
 Peesence of Duly Oedained Ministbe ... 97 
 nonconpoemist maeeiage : 
 
 Registeae's Ceetificate 99 
 
 The Notice (its Contents) ... • . 99 
 
 The Declaration (its Contents) .... 99 
 
 Issue of Ceetificate 100 
 
 Registeae's Licence . 100 
 
 diffeeences between ceetificate and licence . loi 
 
 Maeeiage in Presence of the Registeae . . 102 
 
 Rb-maeeiages 103 
 
 Maeeiages of Quakees 103 
 
 Maeeiages of Jews 104 
 
 Maeeiages of English Subjects Abeoad : 
 
 DiEIMENT and IMPBDIENT PEOHIBITIONS . . . . I07 
 
 On Eoeeign Teeeitoey : Foeeign Maeeiage Act, 1892 . 107 
 Maeeiage in Official House of Beitish Ambassador, 
 
 Consul, and Goveenoe 108 
 
 Maeeiage on Board H.M. Ships . . . . 108 
 
 Rbquieements 109 
 
 Maeeiage within Lines of British Aemy Serving 
 
 Abeoad no 
 
 PEOVISIONS OPjilBECHANT SHIPPING ACT, 1854 . . .110 
 
 Marriages in India . .in 
 
 Marriages in the Colonies ni 
 
 The clear policy of the law requires that the inception of thi 
 matrimonial state shall, as far as possible, be safeguarded froE 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 87 
 
 fraud and mistake, and not lightly entered upon ; therefore every 
 marriage is to be prefaced by certain necessary acts, without which 
 it is either absolutely null and void, or liable to be called in ques- 
 tion, and the parties to it severely punished for their tortious or 
 irregular conduct. The lex loci celebrationis determines what 
 necessary acts should preface the inception of the tie ; the lex 
 domicilii determines the capacity of the parties to contract mar- 
 riage.' The validity, but not invalidity, of the marriage of any 
 natural born and domiciled English subject may be tested in the 
 Probate Division in a petition by such person for a decree that 
 the marriage is valid under the Legitimacy Declaration Act, 1858.^ 
 The necessary preliminaries will be set forth in this chapter in 
 three sections : — 
 
 Section i . The consent of proper parties. 
 
 „ 2. The essential requirements of a valid marriage in 
 England : (a) Of those belonging to the Estab- 
 lished Church. (&) Of Nonconformists. 
 „ 3. The requirements of a valid marriage celebrated by 
 English subjects abroad. 
 
 Section i. 
 
 The Consent of Proper Parties. 
 
 The nature of marriage renders it absolutely necessary that the Consent of 
 contracting parties should consent to form a binding union ; and p™p®' P" " 
 if the ceremony be gone through between infants or minors infant con- 
 who have not reached the age of consent (twelve in girls and p^Ve^. 
 fourteen in boys), the result is an inchoate and imperfect mar- 
 riage, which may be treated by the parties on attaining the age of 
 consent as null and void without the aid of a judicial sentence, and 
 indeed is now treated by the courts as void.^ Not only is the 
 consent of the contracting parties requisite, but where the parties 
 are minors, the approbation of those in whose power they are is 
 now by statute strictly required. By common law the marriage 
 of infants who have reached the age of consent is valid per se, 
 and does not require the consent of parents and guardians ; but 
 since Lord Hardwicke's Act such consent is requisite by statute. 
 " The father, if Uving, of any party under twenty-one years of Father or 
 age, such party not be&ig a widower or widow ; or if the father 
 
 1 See Be Bethdl, Bethell v. Bildyard, 38 Ch. D. 220, and^osi, chap, xviii. " The 
 International Aspect of Marriage and Divorce." 
 
 2 21 & 22 Vict. 0. 93. See A'cott v. Att.-Gen. 11 P. D. 128 ; Brinldey v. Att.- 
 Gen., IS P. D. 76. . 
 
 ^ See ante, p. 74. 
 
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88 HUSBAND AND WIPE. [part i. 
 
 shall be dead, the guardian or guardians of the person of the 
 party so under age lawfully appointed, or one of them ; and in 
 case there shall be no such guardian or guardians, then the 
 
 or mother. mother of such party, if unmarried ; and if there shall be no 
 mother unmarried, then the guardian or guardians of the person 
 appointed by the Court of Chancery, if any, or one of them, shall 
 have authority to give consent to the marriage of such party; 
 and such consent is hereby required for the marriage of such 
 party so under age, unless there shall be no person authorized to 
 give such consent.'" If the father of the minor be non compos 
 mentis, or if the guardians or mother be also non compotes mentis 
 or beyond seas, &c., or such persons shall unreasonably or from 
 undue motives refuse or withhold their consent, the persons 
 desirous of marrying may apply by petition to the Lord 
 Chancellor, &c., who, on finding the marriage to be a proper one, 
 may declare it to be so ; and such declaration shall operate as 
 validating the marriage.^ 
 
 Want of con- The Consent of the proper person has been held to be directory 
 
 sent of father, i -i ■. i_ -i \ -, i . 
 
 &c., does not Only, and its want does not render the marriage celebrated with- 
 invaiidatemar-o^t i* invalid.^ A formal writen consent is not requisite,' nor a 
 personal knowledge of the party intending to marry the minor.* 
 It is enough if the consent be given at the ceremony, which fact 
 may be proved by the presence of the father, who does not express 
 his dissent." Though consent in the case of a marriage by 
 licence,' and after publication of banns, is presumed, the 
 presumption does not hold good where the father remained totally 
 ignorant of the marriage for some time after its celebration.' 
 Where dissent is openly expressed by the proper parties to a 
 marriage intended to be celebrated after publication of banns, 
 such publication becomes null and void.' Where, however, there 
 is no dissent, the publication, even without consent, operates to 
 render the marriage valid, and after solemnization it cannot be 
 set aside.'" 
 
 ^nrt'lver''* ^^ ^''^^"^ ^^ *^f Chancery Division relative to infants or their 
 marriages of estates makes the infants wards of court, and durins' the nendencv 
 
 wards. „j? j.1, -j. ij. , • . ,, S Jr J 
 
 ot the suit, attempting to marry," or marrying, or abetting the 
 marriage of the wards, is a contempt, and punishable." The 
 
 1 4 Geo. IV. c. 76, s. 16. 2 7j^ g_ jy_ 
 
 3 Eex V. Inliabitants of Birmingham, 8 B. & C, 29. 
 
 * Hodghinson v. Wilkie, i Hag. Con. E. 262 267 
 
 = CresmdU Cosin. 2 Phill 281. ^ Cope y. Burt, i Hag. Con. R. 434. 
 
 Snnth Y Suson 1 Phill. 287, 296. « Balfour v. Carpenter, 1 Phill. 221. 
 
 " 4 Geo. IV. c. 76, s. 8. X- I 
 
 '" Diddear v. Faucit, 3 Phill. 580. 
 " Warter v. Yorke, 19 Ves. 451. 
 
 V Lw"*/*;. "■ f "">""?.' ^^^^- 3°y WelleBley y. BuU of Beaufort, 2 Buss. I ; PA^s 
 V. Jiarl of Anglesea, I P. Wms. 696. ■> j > > «- 
 
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CHAP. vi.J ESSENTIALS OP MARRIAGE. 89 
 
 jurisdiction of the court is not affected by the father of the infant 
 being'alive, or by a testamentary guardian having been appointed. 
 Ignorance of the infant being a ward of court does not free the 
 marrying party from the consequences of his act.' The Court 
 of Chancery will restrain its wards from contracting marriages 
 which are likely to prove injurious to them, although they have 
 attained the age of consent, and might contract a valid marriage. 
 It will, therefore, make orders preventing the access of an in- 
 eligible or improper person by letter or other means.^ The court 
 in flagrant cases will not content itself with merely committing 
 the party in contempt, but will direct a criminal prosecution.* The 
 settlements made by the court on the marriage of its wards will be 
 discussed later on.* 
 
 Illegitimate minors can have no lawfully appointed guardians Bastard 
 except those given to them by the Court of Chancery ; and when ™'°™ ■ 
 there are no such guardians appointed, the illegitimate minors 
 may contract a valid marriage without the consent of any person ; 
 for their parents (not being lawful parents) have no power either 
 to consent or to object to their marriage.* 
 
 Forfeiture of Property accruing from a Marriage oUained hy Forfeiture of 
 Fraud. — Between the passing of Lord Hardwicke's Act and 1 823, ^™eo! Iv° ""^ 
 the want of consent of the proper parties avoided the marriages "• 76. s. 23. 
 of minors which were obtained in fraud of such parties. But in 
 the latter year the Act of 4 Geo. IV. c. 76, s. 23, provided 
 that where marriages (celebrated according to the rites of the 
 Church of England *) of minors, who are neither widowers nor 
 widows, by licence or after publication of banns are procured by 
 false oath or fraud, the Attorney- or Solicitor-General may sue for 
 a forfeiture of all estate, right, title, and interest in any property 
 accruing to the party so offending by force of such marriage by 
 information at the relation of a parent or guardian of a minor 
 whose consent has not been given to the marriage.^ 
 
 The court may then declare the forfeiture, and order that all 
 the estate and interest as shall have accrued or shall accrue to the 
 offending party by force of the marriage shall be secured under 
 
 ^ Herbert's Case, 3 P. "Wms. 116 ; Nicholson v. Squire, 16 Ves. 259. deepest, 
 Part IV. chap. t. 
 
 2 Wellesley v. Dujee of Beaufort [ubisup.); /Smith v. Smith, 3 Atk. 305. 
 
 ' Priestley v. Lamb, 6 Ves. 421. 
 
 * Tost, Part IV. chap. v. 
 ' 5 fforner v. Horner, i Hag. Con. R. 337 ; Priestley v. Hughes, 11 Bast i. 
 
 " The provisions of this section are extended by 6 & 7 Wm. IV., c. 85, s. 43, and 
 19 & 20 Vict. c. 119, s. 19, to marriages not celebrated according to the rites of the 
 Church. 
 
 ^ Sect. 25. The complaint of the parent or guardian must be on oath, and made 
 within three months from the time of the marriage becoming known to the relator ; and 
 the information must be filed within a year after the solemnization of the marriage. 
 
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90 
 
 HUSBAND AND WIFE. 
 
 [PAET 
 
 Usual settle- 
 ment -where 
 minor is a 
 female. 
 
 the direction o£ the court for the benefit of the innocent party, or 
 of the issue of the marriage, or of any of them, in such manner 
 as the court shall think fit, for the purpose of preventing the 
 oifending party from deriving any interest in real or personal 
 estate, or pecuniary benefits from such marriage. If both parties 
 are guilty, then the property may be settled by the court for the 
 benefit of the issue of the then or any future marriage. Any 
 previous agreements made in contemplation of such marriage are 
 void.' The proper mode of settling the property of the minor 
 (if a female) by the court has been held to be, that if there be 
 no children, the wife should have the power of appointing the 
 whole, during the coverture by will, and if she survive her 
 husband, either by deed or will ; if there be children, and the 
 wife die first, then the whole to go to the children — if sons, at 
 twenty-one, and if daughters, at twenty-one or marriage ; but if 
 she survive her husband, then two-thirds go to the children of 
 the marriage, and one-third to be subject to her appointment by 
 deed or will.^ This latter provision enables her to provide for a 
 second marriage. Where the fund is small, the court will order 
 it not to be settled, but paid into court ; and will declare the 
 trusts of it both in possession and in reversion.^ The court will 
 not now make an order for a settlement in these cases, unless the 
 Attorney-General appears separately from the relator.^ 
 
 Requirements 
 of a valid 
 marriage in 
 England. 
 
 Church of 
 
 England 
 
 marriages. 
 
 Section 2. 
 The Essential Bequirements of a Valid Marriage in England. 
 
 When persons intending marriage have obtained the consent 
 (if necessary) of the proper parties to their union, they must 
 celebrate or solemnize their marriage in a lawful and recognized 
 manner, after satisfying the requisite formalities imposed upon 
 them by law. This section will be subdivided into two parts; 
 namely : i. The essential requirements of a marriage celebrated 
 in accordance with the rites of the Church of England. 2. The 
 essential requirements of Nonconformist marriages. 
 
 (i) Church of England Marriages. — Where marriages are 
 celebrated according to the rights of the EstabHshed Church, the 
 preliminary requirements are either (a) publication of banns; 
 (6) or special licence; (c) or common or Ordinary's Licence; 
 (d) or superintendent-registrar's certificate in lieu of publication 
 
 ^ Sect. 24. 
 
 3 ^f--^™-^- -^»cas, 2 Ph. 753 ; followed mAtt-Gen. 
 " Att.-tren, V. Clements, L. R. 12, Eq. 32. 
 ^ Att.-Oen. V. Head {uU sup.). 
 
 T. Bead, L. E. 12 Eq. 38. 
 
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CHAP. VI.] ESSENTIALS OP MARRIAGE. 91 
 
 of banns ; (e) and the presence of a duly ordained minister at the 
 ceremony. 
 
 (a) Publication of Banns. — The publication of banns was first Publication of 
 rendered compulsory in England by Lord Hardwicke's Act in 
 1753 (following the course taken by the Council of Trent), for all 
 persons marrying who were not Quakers or Jews, or had not 
 obtained a special or Ordinary's licence. 
 
 The signification of the word is a "proclamation," and its Meaning of the 
 ostensible use is a notification to people generally that the parties 
 proclaimed intend to contract a marriage ; if, therefore, the 
 publication is such as not to designate, but to conceal, the parties, 
 it is no publication.' It is used to awaken the vigilance of Publication 
 parents and guardians, and to give them an opportunity of pro- and proper. 
 tecfcing their rights. (The law), therefore, requires that a true 
 name should be given to them, evidently considering that a name 
 assumed for the occasion is a name that will not answer the pur- 
 poses of the provisions.^ ' Formerly the publication of false names 
 formed an ivvpedimentum dirimens invalidating the marriage in 
 toto ;^ but since the Marriage Act of 4 Geo. IV. c. 76, nullity 
 is confined to cases whore the parties " knowingly and wilfully 
 intermarry without due publication of banns ; * and that which 
 under the earlier law would have been no publication at all, has 
 been held under the later not to be such an undue publication as 
 prevented a valid marriage from being contracted. 
 
 Both parties must be shown to be aware of the undue publica- Both parties 
 tion before the celebration of the marriage;" for the wrongful ^fj.^^^™'^ '° 
 act of the one will not be allowed to operate to the prejudice of 
 the other, unless a participator;^ and where only one is guilty of 
 fraud, the innocent party vsill not be allowed to have the marriage 
 declared null and void.' 
 
 The Act of 1823 requires the true Christian and surnames of True names. 
 the parties to be published. The true name of the parties is primd 
 facie the native name; at the same time, it is possible that a person 
 may have assumed another name so as to bring it within the descrip- 
 tion required by the statute. A person may take any surname, and 
 even Christian name,^ he likes, and the law will recognize it; and 
 
 1 FeUowes v. Stewart, 2 Phill. 238. 
 
 ^ Wakefield ?. Wakefield, I Hag. Con. E. 394. 
 
 ^ Sullivan v. SuMvan, 2 Hag. Con. K. 238 ; Pouget v. Tomkins, 2 Hag. Con. E. 142. 
 
 ^ Sect. 22. 
 
 = Rex V. Wroxton, 4 B. & Ad. 640 ; Wright v. Elwood, i Curt. 662 ; Brealy t. 
 Beed, 2 Curt. 833 ; Midgeleij v. Wood, 30 L. J. P. M. & A. 57 ; Gompertz v. Kensit, 
 L. E. 13 Eq. 369. 
 
 '^ Wiltshire v. Prince, 2 Hag. Ecol. R. 332 ; Hadley v. Beynolds, cited m Tongue v. 
 Allen, I Curt. 39, 47 ; I Moo. V. C. 90 (on appeal). 
 
 '' TempUton v. Tyree, L. E. 2 P. & D. 420. 
 ; V. Henry, 2 Hag. Con. E. 215. 
 
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children. 
 
 92 HUSBAND AND WIFE. [part i. 
 
 it needs neither royal licence nor Act of Parliament to sanction the 
 change ' ; and where the new name has not been assumed for any 
 fraudulent purpose, or for the occasion of the publication, banns may 
 lawfully be published in that new name.^ A name, too, may be 
 
 Names by acquired by repute, and where the name so acquired is better known 
 
 repute. ^^^^ ^-^^ ^^^^ ^^^^ ^^ ^^^ party, that is the proper name in which 
 
 publication should be made ; for it may be that an act of conceal- 
 ment would, under certain circumstances, be the result of using 
 the true name.^ The courts will look with greater suspicion on 
 an assumed name in which a minor is married than on one in 
 which an adult is married ; because the rights of the parties 
 interested in the minor might be directly affected by the assump- 
 tion of such new name, whereas in the other case, if no fraud is 
 practised on the other contracting party, the interests of third 
 
 Illegitimate persons are not equally affected.'' Illegitimate children have no 
 name except that which they acquire by repute, though usually 
 they take that of their mother. Where there is a name of 
 baptism and a native surname, those are the true names, unless 
 they have been overridden by other names assumed and generally 
 accredited ; * and the names by which persons are usually known, 
 should be used in the publication of banns/ 
 
 Total variation The Variation in the names may be either total or partial. If 
 there be a total variation of a name or names — i.e., if the banns 
 are published in a name or names totally different from those 
 which the parties, or one of them, ever used, or by which they 
 were ever known — the marriage in pursuance of that publication 
 is invalid ; and it is immaterial in such cases whether the mis- 
 description has arisen from accident or design, or whether such 
 design be fraudulent or not.' The above is part of Lord 
 Tenterden's judgment, which was under the old law ; it is now 
 submitted, however, that the law is not absolutely clear on the 
 point whether or not, if two parties, both of full age, without the 
 intention of committing fraud, choose to get married after pubUr 
 cation of banns in names which are not their true names, their 
 marriage will beheld null and void.* After long cohabitation and 
 birth of children, the court would be more likely to presume in 
 
 ^ Franhland v. Nicholson, 3 M. & S. 259 n. 
 
 ^ Bex V. Sillinghurst, 3 M. & S. 250. 
 
 3 Sex V. St. Faith's, Newton, 2 D. & E. 34 ; and see Fendedl v. Goldsmith, 2 P. D. 
 263. 
 
 ^ Mayhem v. Mayhew, 2 Pliill. 11. 
 
 = Wakefield v. Wakefield, 1 Hag. Con. R. 394. 
 
 « Sullivan v. Sullivan, 2 Hag. Con. R. 238 ; Wilson v. Brockley, 1 Phill. 132, 
 147. 
 
 ' Hex V, Tihshelf, i B. & Ad. 190. 
 
 " 4 Geo. IV. c. 76, s. 22, and see B.olmes v. Simmons, L. E. i P. & D. 523 I 
 but see Midgeley v. Wood, 30 L. J . P. M. & A. 57. 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 93 
 
 favour of than against the validity of such marriage. Where 
 two minors marry after publication of banns in names which are 
 not true but with consent of parents or guardians, it may be 
 asked whether such marriage should be held valid.' Where Partial 
 the variation is partial, it is always open to explain the supposed ""'^ '°°' 
 misdescription ; and then the presence or absence of fraudulent 
 intent and motives of the parties become of marked importance.^ 
 Such varieties may arise not only from fraud, but from negligence, 
 accident, error, from unsettled orthography, or other causes con- 
 sistent with honesty of purpose. Explanatory evidence will be 
 received ; but if unsatisfactory, the court will presume against the 
 honajldes of the transaction,^ as where part of a name is omitted,'' 
 or an additional name is inserted.* A marriage celebrated as Maniage ceie- 
 if by banns, but without any publication, comes within section any pubKca- 
 2 2 of 4 Geo. IV. c. 76, and is treated as one celebrated without ^'™ °* ^^'"'^ 
 due publication, and so null and void." But a marriage is valid 
 though celebrated without banns, unless both parties were aware 
 at the time of the ceremony of their absence.' 
 
 Mode of Publication. — All banns of matrimony are to be pub- Mode of publi- 
 lished in an audible manner in the church, &c., of the parish in 
 which the persons to be married dwell, ^ according to the form of 
 words prescribed by the rubric prefixed to the Office of Matrimony 
 in the Book of Common Prayer, upon three Sundays preceding 
 the solemnization of marriage, during the time of morning service, 
 or of evening service (if there be no morning service), immediately 
 after the second Lesson.' If the persons to be married dwell in 
 different parishes, &c., the banns are to be published in the 
 church, &c,, belonging to the parish, &c., in which each of the 
 said persons dwell. In all cases where banns have been 
 published the marriage must be solemnized in one of the parish 
 churches, &c., where the banns have been published, and in no 
 
 ^ Per Lord Penzance in Holmes v. /Simmons {uhi sup.). The tendency of tlie 
 courts would be to uphold it, as the element of fraud and the evasion of the rights of 
 those whose consent is requisite would be absent. 
 
 ^ Pouget V. Tomhins, 2 Hag. Con. R. 142 ; 3 M. & S. 262 n. 
 
 ^ See the cases where partial variation occurred, Dohbyn v. Cornech, 2 Phill. 102 ; 
 V. Longley, i Phill. 148 n. ; Ileddowcroft v. Gregory, 2 Phill. 365. 
 
 '' Stanhope v. Baldwin, 1 Add. 93. 
 
 ^ Qreen v. Dalton, I Add. 289. 
 
 ^ Wright v. Elwood, I Curt. 662. 
 
 ' Greaves v. Greaves, L. E. 2 P. & D. 432. 
 
 ^ See also l Vict. c. 22, s. 33, and 3 & 4 Vict. c. 72, s. 2. The bishop may, with 
 the consent of the patron and incumbent, authorize the publication of banns in any 
 public chapel of the parish, or of any chapel situated in an extra-parochial _ place, 
 4 Geo. IV. c. 76, s. 3 ; and may license chapels in populous places for the solemnization 
 of matrimony, 6 & 7 Wm. IV. c. 85, s. 26. 
 
 8 Some considerable doubt has arisen as to what is the proper place for publishing 
 banns, whether after the second Lesson, or immediately before the sentences for the 
 offertory, as the rubric has it ; the former time is the one most generally used, and, 
 being statutory, is the more safe. 
 
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94 HUSBAND AND WIFE. [part i. 
 
 other place, ^ After the solemnization of any marriage under a 
 publication of banns, it shall not be necessary in support of such 
 marriage to give any proof of the actual dwelling of the parties 
 in the respective parishes wherein the banns were published, nor 
 shall any evidence be received to prove the contrary in any suit 
 touching the validity of such marriage.^ 
 The clergy No clergyman shall be obliged to publish the banns of matri- 
 
 no1;ice.^'"*°'* mony between any persons, unless they shall, seven days at least 
 before the time required, for the first publication of such banns 
 respectively, deliver or cause to be delivered to such clergyman a 
 notice in writing, dated on the day on which the same shall be 
 so delivered : — ( i ) Of their true Christian names and surnames ; 
 (2) Of the house or houses of their respective abodes within their 
 parish or chapelry ; (3) And of the time during which they have 
 dwelt, inhabited, or lodged in such house or houses.^ 
 
 No clergyman solemnizing marriage between persons, both or 
 
 one of whom shall be under the age of twenty-one after banns 
 
 published, shall be punishable by ecclesiastical censures for 
 
 solemnizing such marriage without the consent of parents or 
 
 guardians, unless he shall have notice of the dissent of the 
 
 Pubiic'dissent parents or guardians ; and in case where such parents or 
 
 renderTpub-" ' guardians, or one of them, shall openly and publicly declare, or 
 
 b»nns void ^ause to be declared in the church or chapel where the banns 
 
 shall be so published, at the time of such publication, his, her, or 
 
 ^ 4 Geo. IV., c. 76, e. 2. 
 
 2 Sect. 26. Tree v. Q,uin, 2 Phill. 14 ; Rex v. Hind, Suss v. Byan, 253. 
 
 ^ 4 Geo. IV. c. 76, s. 7. This section shows most clearly that publication of banns, 
 though intended to promote notoriety and prevent secrecy in the contracting of matri- 
 monial relations, operates with the exactly contrary effect (Report of Commission on 
 Marriage Laws p. vi., and Rev. S. C. Wilks' Memorial, Appendix, 16-28). The 
 clergyman is not bound to call for any notice of particulars of name or residence of the 
 parties to be married ; all he can do is to refuse to marry unless he is furnished with 
 such notice, and if the parties make false statements in the notice, no penalties are 
 attached to their so_doing._ Indeed, if the clergyman does not insist upon having proof 
 of a seven days' residence in his parish by one of the parties, a residence in the parish 
 of one clear day before the notice of publication of the banns is sufficient, whereas, 
 before a licence can be granted by the Ordinary, one of the parties must depose on oath 
 to a fifteen days' residence in the parish of the church or chapelry in which the 
 martiage is to be celebrated (see i^ost, Licence, p. 96). The clergyman should, how- 
 ever, take reasonable precautions that the publication of banns should be due and 
 proper, and if he be aware of a false description of residence he ought not to proceed 
 with the marriage, though, if it be alreadv solemnised, it is not thereby invalidated 
 {buUwan V. Sullivan, 2 Hag. Con. R. 238). But a clergyman who marries persons 
 non-resident m his parish, and does not use due diligence in his inquiries about them, 
 IS liable to ecclesiastical censures (Nicholson v. Squires, 16 Ves 259. See also 
 FnestUy Y. Lamb, 6 Ves. 421; Wynn v. Dames, i Curt. 69; Voysey v. 31artin, 
 btephen s Laws relating to the Clergy, 743). If a clergyman improperly refuse to 
 pertorm the marriage service, he can be proceeded against in the ecclesiastical courts 
 [Argar v. Uoldsworth, 2 Lee, 515). Whether he can be proceeded against by action or 
 indictment, see Davis v. Black, 6 Jur. 55 ; and Beg. v. Moorhouse James, :9 L. J. M. C. 
 179. Itis very doubtful whether he can be proceeded against by action, especially 
 since the passing of 6 & 7 Wm. IV. u. 85, which enables parties to be married else- 
 where than in their parish churches. The case of Beg. v. Moorliouse James [M sup.) 
 can be no longer law ou its special facts since 19 & 20 Vict, c 119 s 11 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 95 
 
 their dissent to such marriage, the publication shall be absolutely- 
 void.^ 
 
 If a marriage be not had within three months after the publica- Republication 
 tion of banns, it will not be valid unless they have been repub- ms^rHag^uot 
 lished in a proper and legal method,^ or the marriage is celebrated "^l®^™'!*^ 
 in some other manner. months. 
 
 Where one party to a marriage celebrated in England is resi- 
 dent in Scotland and the banns of such party are proclaimed 
 according to Scotch law or custom, in the parish or place in which 
 he or she is resident, such marriage in England shall not be ren- 
 dered invalid only by reason of such publication being in accord- 
 ance with the Scotch and not the English method.^ 
 
 &. The Licence. — ^A licence is a dispensation which enables the Licence. 
 parties who obtain it to be married without the publication of 
 banns ; it cannot be granted except by persons having episcopal 
 authority. There are two kinds of licence for marriages accord- 
 ing to the rights and ceremonies of the Church of England : — the 
 special licence of the Archbishop of Canterbury ; and the Oitli- 
 nary's, or common, licence, granted by the proper officers autho- 
 rized to issue them. 
 
 Special Licence. — When the supremacy of the See of Rome was Special 
 successfully controverted by Henry VIII., the legatine jurisdiction "'®°°^' 
 of granting dispensations, faculties, and licences was, however, re- 
 served to the Archbishop of Canterbury by 2 5 Hen. VIII. c. 2 i , 25 Hen. vill. 
 s. 4. This privilege was preserved to him by the Marriage Act, ^v ^''. ^' *' 
 
 ^ r o r J o ) Jlarnage must 
 
 4 Geo. IV. c. y6, s. 20, and by 6 & 7 Wm. IV. c. 85, s. i. The take place 
 special licence enables the parties who obtain it to dispense with months from 
 the necessity of residing in any particular place before its grant, ^^^ °* '^^"®' 
 and to be married at any time or place within three months from 
 the date of the issue. The cost of this licence, including the 
 stamp (;^5), is about ;^30.' 
 
 c. Common, or the Ordinary's, Licence. — This licence is obtained Common, or 
 from the vicars-general appointed by the Archbishops of Canter- Licence. 
 bury and York for their respective provinces, and from the cban- 
 cellors and surrogates* appointed by the bishops for their 
 respective dioceses, who derive this power of issuing licences both 
 from the Common Law and 2 5 Hen. VIII. c. 21. The issuing of 
 this licence is governed by 4 Geo. IV. c. 76, ss. 10-19. 
 
 1 Sect. 8. 2 Sect. 9. 
 
 2 49 & 50 Vict. u. 3, s. I. 
 
 * For the wider powers of the Irish Church bishops and heads of denominational 
 bodies in Ireland, under 33 & 34 Vict. c. no, ss. 36, 37, see Marriage Laws of Ireland, 
 pp. 47 and 51. 
 
 ' These surrogates must take oaths of office, and give security in a bond of ;^ioo to 
 the bishop of tbe diocese for the due and faithful execution of their office, 4 Geo. IV. 
 c. 76, 8. 18. 
 
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96 
 
 HUSBAND AND WIFE. 
 
 [PABT 
 
 Fifteen days' 
 residence by 
 one of the 
 parties in the 
 district of the 
 church or 
 chapelinwhioh 
 the marriage is 
 to be cele- 
 brated. 
 
 Caveat may be 
 entered against 
 issuing of 
 licence. 
 
 No impedi- 
 ment or hin- 
 drance to the 
 marriage. 
 
 Fifteen days' 
 residence. 
 
 Consent of 
 propfer persons 
 
 Marriage to be 
 had within 
 three months 
 of date of issue. 
 
 Wilful non- 
 compliance 
 with statutory 
 requirements 
 voids the 
 marriage. 
 
 Difference be- 
 tween banns 
 and licences. 
 
 Marriage on this licence must be celebrated in no other church 
 or chapel than in the parish church, or in some public chapel of 
 or belonging to the parish or chapelry within which the usual 
 place of abode of one of the parties to be married shall hare been 
 for the space of fifteen days immediately before the granting of 
 the licence.' 
 
 A caveat may be entered against this licence, which is not to 
 issue until such caveat has been withdrawn, or it has been decided 
 by the proper person that it ought not to obstruct the grant of 
 the licence.^ 
 
 The oath to be taken before the surrogate, &c., by one of the 
 parties previous to the granting of the licence is to the following 
 effect : — • 
 
 (i) That there is no impediment of kindred or alliance, or of 
 any other lawful cause, nor any suit commenced (in the Probate, 
 Divorce, and Admiralty Division of the High Court of Justice) to 
 bar or hinder the proceeding of the said matrimony according to 
 the* tenour of the licence. (2) That one of the parties hath for 
 the space of fifteen days immediately preceding the application for 
 the licence had his or her usual place of abode within the pariah 
 or chapelry within which such marriage is to be solemnized. 
 (3) That where either of the parties, not being a widower or 
 widow, shall be under the age of twenty-one years, the consent of 
 the person or persons whose consent to such marriage is required 
 has been obtained thereto.^ If, however, there be no such person 
 having authority to give consent, the licence may issue upon the 
 deponent making an oath to that effect.'' 
 
 Unless a marriage on a licence of this kind take place within 
 three months from the date of its issue, it is not to be solemnized 
 until a new one be obtained, or the parties married with other 
 legal formalities.* The Marriage Act of Geo. IV. (in section 22) 
 enacts that where persons wilfully intermarry without licence from 
 a person or persons having authority to grant the same first had 
 and obtained, or knowingly and wilfully consent to or acquiesce 
 in the solemnization of marriage by any person not being in holy 
 orders, such marriage shall be null and void." 
 
 The difference of ideas as to notoriety associated with banus 
 and licences has rendered necessary in the case of the latter 
 much less strictness in the accuracy of the names of the parties ; 
 accordingly, a false Christian name or surname in a licence does 
 not render the marriage celebrated on it void ; ' so a mere mis- 
 
 1 Sect. 10. « Sect, 11. 
 
 ' l^id. 5 Sect. 19, 
 
 ' Bex, V. Burton-upon- Irent, 3 M. & S. 53 
 
 * Sect. 14. 
 '■ See^os*, p. 97. 
 A false statement On oath before 
 
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CHAP. vi.J ESSENTIALS OF MARRIAGE. 97 
 
 description, unless fraudulent, will not invalidate a marriage, for "in 
 licences the identity is the material circumstance to which the court 
 principally looks." ^ Thus, where a man was described in a licence 
 (not for purposes of fraud) as having two Christian names more 
 than he really had, the marriage which took place on the licence was 
 held valid.^ As in banns, the guilty and fraudulent knowledge of 
 both parties must be proved before a marriage celebrated on a licence 
 obtained from a person not having authority to grant it will be ren- 
 dered void.' Where parties marry without a licence, and both are 
 at the time of the ceremony unaware of its absence, the marriage 
 is valid.* 
 
 d. On the Eegistrar's Certificate. — Since the passing of 6 & 7 Eegistrar's 
 Wm. IV. c. 85 (amended by 7 Wm. IV. and i Vict. c. 22), which 
 made a solemn change in the laws governing and regulating 
 marriages in England, the certificate of the superintendent- 
 registrar is now held equivalent to publication of banns or 
 emscopal licence. It is only optional, and not obligatory on the Clergy of the 
 
 .. r ..v 1 * 4.1, nu 1, i -P 1 J 4- ChurchofEng- 
 
 part of the clergy 01 the (Jhurch 01 Jljugland to marry persons land not bound 
 
 who have obtained this certificate.'^ The method of obtaining it *° *'"'^P' "• 
 will be treated of under the heading of Nonconformist marriages." 
 
 e. Presetiee of a duly Ordained Minister. — As it has been conclu- Presence of 
 sively laid down that the presence of a duly ordained minister at minister. 
 the ceremony is indispensable to a complete and regular marriage,' 
 the parties must be married in church*' in the presence of a duly 
 ordained minister of the Church of England. A clergyman cannot 
 validly marry himself ; some other clergyman must perform the 
 ceremony.' The question has been debated whether, if a person Whether mar- 
 holding himself out to be a properly ordained minister performs braced before 
 the ceremony, but in reality is not a clergyman at all, and the ^^^"orders" 
 parties are ignorant of his imposture, the marriage is a good one. ™iid. 
 Lord Stowell, in Hawke v. Corri,^° said it was a generally credited 
 opinion that the marriage should be upheld, because parties who 
 came to be married were not expected to ask for a sight of the 
 minister's letters of orders ; and if they saw them, they could not 
 be expected to inquire into the authenticity. Sir E. Phillimore " 
 
 surrogate is not indictable as perjury (Bex v. Forster, E. & E. 459) ; but as made to 
 procure a marriage ^whether celebrated or not) amounts to a common law mis- 
 demeanour (Reg. V. Cliapman, 18 L. J. M. C. 152. 
 
 1 Ewingy. Wheatley, 2 Hag. Con. E. 175, 184; Copey. Burt, i Hag. Con. E. 
 434 ; see also Clowes v. Clmces, 2 Not. of Cas. i ; M'Malion v. M'Mahon, 2 Sw. & 
 
 ■ Tr. 230. 
 
 2 Haswell v. Haswell and Gilbert, 51 L. J. P. D. & A. 150. 
 " Dormer v. WUliams, i Curt. 870. 
 
 '' Greaves v. Greaves, L. E: 2 P. & D. 432. 
 
 5 19 & 20 Vict. c. 119, s. II. ^ Post, p. 99. ' Ante, cliap. ii. p. 15. 
 
 * Unless they hare a special licence to be married out of church, ante, p. 95. 
 '' Beamish v. Beamish, 9 H. L. Can. 274. 
 " 2 Hag. Con. E. 280, 288. " Eccl. Law, 8o4, 805. 
 
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98 
 
 HUSBAND AND WIFE. [part i. 
 
 holds that section 2 2 of Geo. IV. c. 76^ confirms Lord Stowell'a 
 dictum in the above case. On the other hand, the presence of an 
 official witness to a marriage ceremony is necessary. The case of 
 Eeg. V. Millis' has decided that a marriage to be valid must be 
 celebrated in the presence of a duly ordained clergyman of the 
 Church of England; and the Marriage Act of 4 Geo. IV. was passed 
 before that decision was given. Since the Eegistration Acts the 
 presence of a marriage registrar is equivalent to that of a duly 
 ordained clergyman of the Church of England. Marriage accord- 
 ing to the forms of the Church of England must be performed by 
 a minister of the Established Church — 'per presbyterum- smm 
 ordinihis constitutuni? But the judges have avoided deciding the 
 question,^ and it is still open. 
 
 Beg. V. Ellis. In 1 8 8 8 a person was convicted of uttering forged letters of 
 orders by means of which he passed as a clergyman of the 
 Church of England and was appointed to more than one living ; ' 
 while so beneficed he had solemnized several marriages between 
 persons believing him to be properly ordained. Doubts were 
 raised as to the validity of these marriages, and an Act was passed 
 validating them.' 
 
 If both parties go through the form of marriage according to 
 the ceremonies of the Church of England before a person whom 
 they know to be not a duly ordained minister, their marriage is 
 null and void.' But where the parties honestly believe the 
 person by whom they are married to be a duly ordained clergy- 
 man, or official of the authorized class, their marriage ought to be 
 held valid and binding in law, notwithstanding any defect in the 
 orders, title, or authority of the person so officiating; and a 
 general enactment to this ejffect should be passed. 
 
 Canonical All marriages, except those on the special licence, must be 
 
 celebrated in church in the presence of two or more witnesses, 
 and between the hours of eight in the morning and three in the 
 afternoon.^ 
 
 ^ If any persons shall knowingly and wilfully consent to or acquiesce in the eolenmi- 
 zation of such marriage by any person not being in holy orders, the marriages of such 
 persons shall be null and void to all intents and purposes whatsoever. 
 
 2 loCl. & F. 534. 
 
 " Cripps, Law of the Church and Clergy, 636. 
 
 ^ Sex T. Luffington, Burr. Sett. Cas. 232. 
 
 ^ Beg. V. tfilis, Suffolk Summer Assizes, 1888, ; 16 Cox, C. C. 469. 
 
 " 51 & 52 Vict. c. 28 (Marriages Validation Act, 1888). The author raised ttese 
 doubts, and communicated them to persons placed in high office, and the Act was 
 passed in consequence. It seemed too full of risk to allow the question of their 
 validity or invalidity to be raised between the parties with the chance of issue being 
 bastardized, the devolution of property altered, and even of attempts made by either 
 party to the marriage to set aside the matrimonial relationship of which he or she 
 might have grown tired. ' 4 Geo. IV. c. 76, s. 22. 
 
 * 49 & 50 Vict. c. 14. This Marriage Act does not extend to Scotland or 
 Ireland. 
 
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CHAP. VI. J ESSENTIALS OF MARRIAGE. 99 
 
 2 . Essential Meqioirements of Nonconformist Marriages. — The Effects of 6 & 7 
 two Acts of 6 & 7 Wm. IV. c. 85, and 19 & 20 Vict. c. 119, Zt^^&to^^' 
 have placed almost all the religious bodies not in communion ^i'=t- <=• ^'^9- 
 with the Church of England on an equal footing in respect of 
 the marriages of their members, who now need not have recourse 
 to the churches of the Establishment to render their unions law- 
 ful ; but can celebrate them in the churches or chapels of their 
 respective denominations. Further, these statutes afford to all intervention of 
 persons, whether members of the Established Church or Noncon- orders no 
 formists, wishing to marry, a choice between a religious and civil garyTor'non- 
 ceremony ; and for the first time in the history of the matri- Church of 
 monial laws of England, as before noticed, the intervention of riages. 
 one in holy orders is rendered no longer necessary to a regular 
 and valid marriage. Marriage can now be celebrated before a 
 civil officer in a building not set apart for religious worship. 
 The preliminary requirements for these marriages, whether with 
 civil or religious rites, are : — 
 
 The registrar's certificate ; or the registrar's licence. 
 
 (i) The Registrar's Certificate. — Persons desirous of obtaining Marriage on 
 a certificate from the superintendent-registrar for a marriage in certificate^' ^ 
 some registered building, or in the office of the superintendent- 
 registrar, must give to the superintendent-registrar or respective 
 superintendent-registrars (as the case may be), in whose district 
 or districts they must have lived at least seven days before the 
 application is made, a notice containing (a) the name or sur- The notice. 
 name ; ' (h) the profession or condition of each of the parties its contents. 
 intending marriage ; (c) the dwelling-place of the party giving 
 the notice ; (d) the time during which he or she has dwelt 
 therein ;^ (e) and the church' or other building in which the 
 marriage is to be solemnized.* This notice is to be accompanied 
 by an affidavit, the two forming one document, to be signed and 
 subscribed by the party making it in the pres€>nce of the super- 
 intendent or district registrar. Any false statements in the 
 declaration will be visited with the penalties of perjury.^ 
 
 The declaration must state : (a) that the declarant believes that The deciara- 
 there is no impediment of kindred, or alliance, or other lawful contents. 
 hindrance to the marriage ; (b) that the parties have for the 
 space of seven days immediately preceding the giving of such 
 notice had their usual place of abode and residence within the 
 
 ^ A surname acquired by repute, and not for the puposee of concealment or fraud, 
 though not the true name, is sufficient, Reg. v. Smith, 4. J7. & F. logg. 
 
 2 If either party has resided a full calendar month previous to the application, a 
 statement of residence of " one month and upwards " will be enough. _ 
 
 * The reference to a church would be omitted if the notice were given in an applica- 
 catioQ for a licence. 
 
 ^ 6 & 7 Wm. IV. c. 85, 6. 4. " 19 & 20 Vict. u. 119, s. 2. 
 
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100 
 
 HUSBAND AND WIFE. [paet i. 
 
 district of the superintendent-registrar or respective superin- 
 tendent-registrars ; (c) that where either o£ the parties, not being 
 a widower or widow, shall be under age, the consent of the 
 person or persons whose consent to such marriage is by law 
 required has been given, or that there is no such person who 
 could give the requisite consent.' Without this declaration no 
 certificate is to be issued." 
 suspension of This notice must be suspended or affixed in some conspicuous 
 one clearTays. place in the office of the superintendent-registrar twenty-one con- 
 secutive days next after the date of entry in the "Marriage 
 Notice Book.'" 
 Issue of certifi- The issuing of the certificate may be forbidden by any person 
 cate forbidden, ^^^^^^^^^^^g^ ^ ^o go . and if the certificate has issued, the effect 
 of the forbidding is to render all proceedings consequent upon the 
 notice void.^ Unless forbidden, the issue of the certificate is 
 Issue of certi- made tweuty-one successive or clear days after the day of entry 
 fne'cielr dlys oi the notice* by the superintendent-registrar to whom the notice 
 after date of ^^s given ; " and the certificate is to hold good for three months 
 
 from the date of its issue.' 
 Marriage on (2) The Registrar's Licence. — When a marriage is' intended on 
 
 ifcenof.'^'™"^ the registrar's licence, the same notice must be given as for a 
 Fifteen days' certificate, except that the affidavit accompanying the notice 
 one ou'he /ar- must state that One of the parties has had his or her usual place 
 trict'of*the'^^ of abode and residence in the district of the superintendent- 
 supt. -registrar registrar to whom the notice is given for at least fifteen days 
 notice is given, immediately preceding the giving of the notice.^ 
 Issue of On an application for a licence this notice need not be sus- 
 
 pended in the registrar's office.^ After the expiration of one 
 whole day next after the date of the entry in his "Marriage 
 Notice Book," the superintendent-registrar who received the 
 notice may grant a licence to marry to the party giving the 
 notice, unless its issue has been in the meanwhile forbidden. The 
 licence is valid for three months from the date of its issue.'" 
 Perjury by Wilful false statements, even if made by both parties, would 
 
 both parties . •' ,, t .t 
 
 not a ground not render a marriage celebrated on a licence null and void, on 
 of nullity. ^T^^ ground of want of due notice. The penalty of fraudulently 
 
 1 See 6 & 7 Wm. IV. c. 85, s. 10, for those who are entitled to give or withhold 
 their consent. 
 
 2 19 & 20 Vict. 0. 119, s. 2. ^ Ihid. s. 4. 
 
 ' 6 & 7 Wm. IV. u. 85 s. 9. A caveat on the payment of five shillings may be 
 lodged against the grant of a certificate ; and its issue is to be withheld until the 
 caveat is removed, or has been held not to warrant the refusal to issue the certificate. 
 Ibid. s. 13. 
 
 '' 19 & 20 Vict. c. 119, s. 4. s Ibid. s. 2. 
 
 '' 6 & 7 Wm. IV. u. 85, s. 15 ; 19 & 20 Vict. c. 119, s. 9. 
 
 s 19 & 20 Vict. 0. 119, s. 2. 
 
 s Ibid. s. 5. 10 Ibid. s. 9. 
 
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 CHAP. vi.J ESSENTIALS OF MARRIAGE. \iX^ ^ 
 
 giving a false name is perjury,' and a forfeiture of property at the ^^- .-- 
 suit of the Attorney-General.^ If persons knowingly and wil- 
 fully intermarry without due notice to the registrar, or without a 
 certificate of notice duly issued, the marriage is null and void f 
 but where a notice is in a wholly false name (which must be 
 fraudulently done), it may be doubted whether that is a notice at 
 all.' 
 
 The following is a sketch of the difierences in the provisions Differences 
 affecting marriages celebrated on a certificate and those celebrated tificatera^nd ' 
 on a licence : licences. 
 
 (1) Notice. As to notice. 
 
 (a) Certificate. — If the parties intending marriage reside in Certificate. 
 the districts of different registrars, notice must be given to the 
 registrars of both districts, and must state how long they have 
 resided therein ;'' and the notice must be suspended twenty-one 
 successive days in the oflSce of the registrar.* 
 
 (&) Licence. — If the parties live in different districts, notice Licence, 
 need be given to the registrar of only one district, and only the 
 party giving notice need state how long he or she has had his or 
 her usual place of abode in the district.' The notice need not be 
 suspended at all in the registrar's office.' 
 
 (2) Eeside^ice. _ _ ^;,*°.-- 
 (a) Certificate.— ^oth. parties must have had their usual place Certificate. 
 
 of abode for seven clear days before notice given in their respec- 
 tive districts (if more than one).' 
 
 (6) Licence. — The party giving the notice must have resided Licence. 
 fifteen clear days in the district of the registrar to whom the 
 notice is given, irrespectively of the length of residence of the 
 other party, whether in the same or different districts.'" 
 
 i'O Time of Issuinq Certificate. As to time of 
 
 '■^' >/ ,7 ./ ^ issuing certifi- 
 
 (a) Certificate. — Twenty -one clear days after date of entry in cate. 
 " Marriage Notice Book." " Certificate 
 
 (h) Licence. — One whole clay next after date of entry in Licence. 
 " Marriage Notice Book." '^ 
 
 When the certificate or licence is granted by the registrar the Marriage in a 
 parties are at liberty to marry (according to the ritual of their building. 
 denomination) in the building (registered for the solemnization of 
 marriage) mentioned in the certificate or licence, and no other ; " 
 but the consent of the trustees, owners, deacons, or managers 
 
 1 6 & 7 Wm. IV. c. 85, s. 38. 2 Ihid. s. 43. 
 
 ^ Ibid. =. 42. * See Holmes v. Simmons, L. E, i P. & D. 523. 
 
 5 ig & 20 Vict. 0, 119, o. 2. ^ Ibid. s. 4. 
 
 '■ Ibid. ss. 2, 6. * Ibid. s. 5. 
 
 » Ibid. 8. 2. '» 2bid. ss. 2-6. " Md. s. 4. 
 
 12 Ibid. o. 9. 13 6 & 7 "Wdj, IV. c. 85, =. 42. 
 
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102 HUSBAND AND WIFE. [part i. 
 
 * 
 thereof, or of the officiating minister of any registered building of 
 the Church of Eome, or of any church or chapel of the Church of 
 England, must be first obtained." If both parties knowingly and 
 wilfully marry in some place other than the proper church or 
 Marriage ceie- building, their marriaffe is null and void.^ The marriage must 
 
 brated between , f , , , n • i ^ -i .i • ., 
 
 8 A.M. and 3 take place between the hours oi eight A.M. and three m the 
 presence S 1'"' aftemoon ; and (unless at a church or chapel of the Church of 
 diftri T' ° d*''^ England, or Jewish synagogue or Quakers' meeting-house) in the 
 two or more presence of some registrar of the district in which the registered 
 
 building is situated, and of two or more credible witnesses.^ 
 thereefs'trar's ^^ *^® marriage is not to take place in any of the foregoing 
 office. churches, or registered buildings, the parties may be married at 
 
 the registry office in the presence of the superintendent-registrar 
 and some district registrar, under the like conditions as marriages 
 cerem^'n'^^t Celebrated elsewhere. No religious forms or ceremony are allowed 
 be used. to be used, but the parties must at some time or other express 
 
 Mutual con- their mutual consent to take each other as man and wife.* 
 
 sent must be 
 
 exjjressed. The important question of what is undue publication of banns, 
 
 and the effect of false names in the common licence of the 
 Ordinary have been touched upon ; ^ and it is not now neces- 
 sary to do more than state that since the provisions of 
 the Registration Acts inflicting the penalties of perjury upon 
 wilful false statements in the declaration sworn before surrogates, 
 &c., or marriage registrars, the analogy, if any existed, between 
 marriages by banns and marriages by notice to the surrogates or 
 registrar, has been effaced. Nullity is no longer the sequel of a 
 Mis-statement mis-statement in the declaration and notice, whether deliberate or 
 0° noticeVoTs Unintentional." There is, then, this striking anomaly, that a 
 not^avoid mar- material falsehood, which renders a marriage celebrated on the 
 publication of banns null and void, merely operates to create a 
 forfeiture of property in a marriage on the Ordinary's licence, or a 
 registrar's certificate and subjects the parties to a prosecution for 
 perjury. If the parties choose the one method of marriage, they 
 are man and wife ; if the other, they are as though they had 
 never been married; both methods are open to them, but in 
 ignorance of the law their election is unhappy. On the other 
 
 ^ 19 & 20 Vict. c. 119, s. II. 
 
 == 6 & 7 Wm. IV. 0. 85, s. 42. 
 • \ ^^i'^'ni ^°\ T^^^ presence of the registrar at the marriages of those not belong, 
 ing to the Uiuroh oi England is humiliating, and constitutes a distinct grievance on 
 tbe part _ot the nonconforming bodies; and it is to be hoped that before long some 
 SePV '^^"^^'J *"!' enabling his attendance to be dispensed with, as it is in 
 
 ^ 6 & 7 Wm IV. c. 85, ss. 20, 21 ; and 19 & 20 Vict. c. 119, ». 12. 
 bee ante, Due Publication of Banns, pp. 91, et seq. ; Common Licence, p. 95 ; 
 Begistrar's Certificate, p. 99. rr y , j. , , i- yj > 
 
 « Holmes y. Simmons, L. E. i P. & D. 523 ; see also the earlier cases oi Rers v. 
 -fiers, 2 H. L. Cas. 331 ; and Lane v. Ooodwin, 12 L. J. Q. B. 157 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 103 
 
 hand, material false statements made to the clergyman before 
 publication of banns, do not entail any personal duress or restraint 
 as a punishment ; but if made to the surrogate or registrar, are 
 visited with the pains and penalties of perjury. The law strikes 
 unevenly and unfairly, and serious modifications, tending to 
 uniformity and symmetry, are much needed in this branch of 
 English jurisprudence. 
 
 Be-marriages. — Persons after being married civilly before the Ee-mamages. 
 registrar, at his office, may, if they so desire, add the religious 
 ceremony provided by the church or denomination to which they 
 belong, and the clergyman or minister of such church or deno- 
 mination may, after notice given to him, and on production of the 
 registrar's certificate, perform the marriage ceremony according to 
 the accustomed rites, as supplemental to^ but not in supersession Eeiigious cere- 
 of, the civU ceremony. This religious ceremony is nob to be menfai to, but 
 registered as a marriage.' It is sometimes considered expedient geegJon oF^the 
 to add this second marriage where there has been a civU mixed civil, 
 marriage, as between a member of the Church of England and circumstauees 
 a Eoman Catholic, or Jew ; or where the parties domiciled in the ceremony 
 England have married abroad; or where there has been some 
 invalidity in the previous marriage ; but this course ought not to 
 be pursued where children have been already born. 
 
 Marriages of Quakers and Jews. — The privilege of celebrating Marriages of 
 
 ., . . T i J.1 • r J • 1 Quakers and 
 
 their marriages according to their own lorms and ceremonies has jews. ' 
 always been allowed both to Quakers and Jews : to the former, 
 because of their quiet resistance to any pressure put upon them 
 by those in authority to make them conform to the usages of the 
 Established Church ; ^ to the latter, less because of any regard 
 for their feelings if compelled to have recourse to the churches of 
 Christians, than from the idea of the churches being polluted by 
 their presence, and they have ever been reckoned an alien race. 
 
 Quakers. — Quaker marriages were excepted from the provisions Quakers. 
 of 26 Geo. II. c, 33, and 4 Geo. IV. c. y6, and were expressly rfages rroog- 
 recognised by 6 & 7 Wm. IV. c. 85, s. 20 '"^^^• 
 
 Marriages according to the rites of Quakers may be celebrated 
 either on the registrar's certificate or licence,' after the usual and 
 proper notice has been given. The persons to be married may 
 be both Quakers, or only one a Quaker, or neither of them a 
 Quaker. When one or both of the parties does or do not belong where only 
 to the Society of Friends, the notice to the registrar must always party is a 
 be accompanied by a certificate signed by some registering officer Quaker. 
 
 1 19 & 20 Vict. c. 119, a. 12; Hammick, pp. 131-133 ^^^ 199-202. 
 
 2 6 & 7 "Wm. & M. c. 6, as. 57, 58 ; Sewell, Hist, of Quakers, 492 ; and I Hag. 
 Con. R. Appendix, p. g. 
 
 3 6 & 7 Wm. IV. c. 85, 8. 2 ; 19 & 20 Viot. c. 119, fl. 21. 
 
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104 
 
 HUSBAND AND "WIFE. [part i. 
 
 of the Society of Friends, to the effect that the party by whom 
 or on whose behalf such notice is given, or each such party (as 
 the case may be), is authorised thereto in pursuance of some 
 general rule or rules of the said society.^ 
 Parties must After the certificate or licence is obtained, the parties must be 
 be married in ™„™;gj within three months from the date of its issue, but not 
 
 the presence of ■^"'■■^*"^" ^ . -,•,•,• i • i xi i n » 
 
 registering necessarilv in the district or districts m which they dwelV 
 Sng-house. according' to the rites of Quakers, in the presence of some regis- 
 tering officer of the society, and of two other witnesses. 
 Jews. Jews. — Jews, like Quakers, were excepted from the provisions 
 
 of Lord Hardwicke's Act, and 4 Geo. IV. c. ^6, and their 
 Their mar- marriages were expressly recognised by 6 & 7 Wm. IV. c. 85, 
 riages recog- o • but before the latter date the validity of Jewish marriages 
 
 nized, ■ ' 
 
 was accepted by the courts. 
 Both parties According to 6 & 7 Wm. IV. c. 85, s. 2, both parties must be 
 must be Jews, j^^g j^^ order to contract a valid marriage celebrated in con- 
 formity with the Jewish rites ; but where the validity of a marriage 
 and legitimacy of children depended upon reputation, a mai;riage 
 between a Jew and a Christian woman was held valid on evidence 
 of repute that they had lived together as man and wife.^ 
 Questions of The question of the validity or invalidity of these marriages is 
 byJewieh'iaw ''^ ^® settled by the laws prevailing among the Jews, and evidence 
 of such will be admitted ; * and if it prove that the parties are 
 not married by Jewish law, the marriage will be held invalid." 
 If Jews are married according to the rites and ceremonies pre- 
 vailing among Christians, they must conform to the regulations of 
 the Marriage Acts.' 
 
 After giving the proper and usual notice to the superintendent- 
 registrar, Jews may be married on the certificate or licence.* 
 Registration of The marriage must be celebrated in the synagogue of the husband 
 by^th*"ecre- in the presence of the secretary of the husband's synagogue, and 
 hSand^s^ be registered by him. If the man and woman are living in 
 synagogue. different places, but it is desired to celebrate the marriage in the 
 place where the woman resides, the man must qualify himself as 
 a member of the woman's synagogue. The Act of Wm. IV. does 
 not direct that the secretary of the synagogue shall be present at 
 the marriage, yet he, as the official witness, ought to satisfy him- 
 self before registering the marriage of its regularity, and that 
 
 ^ 35 Vict. c. 10, s. 1, which repealed the proviso in 23 Vict. 0. 18. b. i, requiring 
 profession with, if not membership of, the society on the part of both persons intending 
 to be so married. 
 
 2 3 & 4 Vict. c. 72, s. 5. 3 Jiorn v. Noel, i Camp. 61. 
 
 ^ Goodman v. Goodman, 28 L. J. Ch. 745. 
 
 ^ Goldsmid v. Bromer, i Hag. Con. E. 324. 
 
 ^ Undo V. Belisario, I Hag. Con. E. 216, 244. 
 
 ' Jones V. Bdbinsou, 2 Phill. 285. 
 
 ^ 6 & 7 Wm. IV. c. 85, B. 2 ; 19 & 20 Vict. c. 119, s. 21. 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 105 
 
 a due compliance has been made with all requisite and proper 
 formalities. 
 
 It will have been noticed that Quakers and Jews have a privi- Presence of a 
 lege which, in common justice, ought to be extended to all non- ^^'^otm-^^' 
 conforming bodies. At their marriages the presence of a registrar ^^^^^ g'^'Y 
 is dispensed with ; and the official witness for Quakers is the Quakers and 
 registering officer of the meeting-house, and for Jews the secretary 
 of the synagogue. 
 
 Section 3. 
 
 Marriages of Unglish Stthjects celebrated Abroad. 
 
 This section deals with a complicated branch of the law, upon Marriages of 
 which neither legislation nor the decisions of the courts are clear ,^°t^^'oeie^"^ 
 and indubitable. Before passing on to discuss foreign marriages brated abroad. 
 of British subjects, brief mention will be made of the marriages non^Brftish 
 of non-British subjects celebrated abroad. These may be succinctly ^"^ted abroad 
 disposed of by stating the general and broad proposition, that the Valid by the 
 English courts will recognise as valid the marriages of foreigners t^actZ valid 
 who have conformed to the essentials of the contract to the everywhere. 
 requirements of the law of the domicil of the parties ; and in the 
 ceremonials to the requirements of the law of the locality in which 
 the parties solemnised their union. Some writers on this province 
 of the law, more especially American authors, would make this American 
 proposition of the widest possible scope, so that in all cases the ^™^' 
 Government of each State " ought to accept all marriages celebrated 
 within the territorial limits of other States (and valid by their 
 laws), whether such as itself approves or not and whether between 
 its own citizens, or between others, as good and lawful." ^ Not 
 all jurists, however go to this length. 
 
 The ordinary exceptions to this rule, as far as can be gathered English law 
 from the earlier decisions of the English courts, were marriages marrlageTiti- 
 between parties which violated some sreneral and well-recognized ™i^i°g ™cest 
 
 . ... . *^" polygamy. 
 
 prohibition imposed by Christianity to prevent incest and poly- 
 gamy. Accordingly, a Mormon marriage has not been recognized 
 in England so as to found divorce proceedings ; ^ so, too, a 
 marriage celebrated according to the forms of a savage African 
 tribe in which polygamy was permissible^ has not been recognized. 
 But a decision of the Court of Appeal has clearly imported 
 another requisite which hitherto, it is submitted, has not been 
 
 1 Bish. Mar. and Div., s. 360. 
 
 2 Hyde v. Bi/de and Woudmansee, L. R. i P. & D. 130. It may, however, be taken 
 that the issue of a polygamous marriage between non-Christians in a non-Christian 
 country where it was validly celebrated would be held legitimate in England, at any 
 rate for succession to personal property. 
 
 3 Me BetheU, BetheU v. Hildyard, 38 Ch.D. 220. 
 
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106 
 
 HUSBAND AND WIFE. [part i. 
 
 deemed essential by the law of England, namely, that ths marriage 
 must le valid according to the law of the domicil of the parties ; and 
 if not, though valid by the law of the place of celebration, it is 
 invalid both there and everywhere.' This decision must, if 
 followed in the future, and not overruled, impose on the courts 
 the invidious and onerous task of discovering whether or not a 
 marriage celebrated between foreigners in a country not their 
 domicil, was or was not valid by their lex domicilii, though the 
 court has not the proper means of duly investigating the fact. 
 i. Marriages of British Subjects celebrated Abroad. 
 Marriages of a. On Foreign Territory.— The English courts will recognize the 
 ]S'od™^" marriages of British subjects sojourning in foreign parts if cele- 
 brated abroad,' ferated according to the forms required in those countries and 
 tTrritoi^." valid by their laws, and between parties who are not prohibited 
 from contracting marriage by the laws of England by reason of 
 nearness of blood, or affinity, or a previous marriage.^ This has 
 been the doctrine of the courts of England for a long succession 
 of years, and was based on the reason that confusion and mischief 
 would arise if marriages validly celebrated abroad, in accordance 
 with the laws of the place of celebration, were not recognized as 
 good and lawful by the courts of the domicil of the marrying 
 parties ; ' but a marriage invalid by the lex loci celebrationis, 
 where one of the parties is subject to the local law, is invalid by 
 English law.* 
 
 Lord Stowell has laid down the principle which the English 
 law affords as applicable to the elucidation of these matters — viz., 
 to refer the question of the validity of the marriage to the laws of 
 the place where it was celebrated.' Of course it is quite compe- 
 tent for the law of England to expressly prohibit certain marriages 
 between those persons who are subject to it; and if Enghsh 
 subjects proceed on purpose to evade their own laws to other 
 places where such prohibited marriages are lawful, the English 
 courts are bound to treat these marriages as null and void,' and 
 this on the clear principle of the territorial sovereignty of England. 
 This is not by any means the same proposition as that enunciated 
 in the recent case of Sottomayor v. Be BarrosH The Enghsh 
 law has a perfect right to say to those who are subject to it, that 
 it will not recognize certain marriages contracted by them, 
 
 ^ Sottomayor V. Be Barroa, 3 P. D. i. This case is more fully criticised in the 
 chapter on The International Aspect of MaiTiage and Divorce, see^osi, chap, xviii. 
 
 " Smith V. Smith, 51 L. J. P. & D. 46. 
 
 2 Scrimshire v. Scrimshire, 2 Hag. Con. E. 395. See also Harford v. Morris, 
 ibid. 423 ; and Middleton v. Janverin, ibid. 437. 
 
 '^ See lie Alison's Trusts, 31 L. T. 638. 
 
 '' Dalrymple v. Dalrymple, 2 Hag. Con. E. 54. 
 
 * Brook V. Brook, 9 H.L. Cas. 193. '^ 3 P. D. i. 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 107 
 
 whether at home or abroad. But if this case be properly decided, 
 the law of England which holds two parties who are quite com- 
 petent by it to contract a marriage, is to be told by a foreign law 
 that it must not recognize their union, because the requisites of 
 their domiciliary law have not been satisfied or legally dispensed 
 with. This is a near approach to the surrender of the theory of 
 the territorial independence of free nations.' 
 
 Down to the decision in the last-mentioned case, the only Diriment 
 prohibitions rendering British subjects incompetent to contract ^'^° 
 valid marriages were diriment, such as by the law of England 
 prevented parties from contracting an union that would be 
 recognized by it, viz., incest, and polygamy or a previous marriage. 
 To these, seemingly, a third must be added — a want of capacity 
 to marry by the foreign domicil of the parties. Impedient pro- impedient pro- 
 hibitions, which could be waived or overcome, and concerned the 
 form and ceremony rather than the essence of the contract, were 
 never held to invalidate the marriage of Englishmen contracted 
 abroad in accordance with the requisites of the foreign country. 
 It mattered not whether the parties were hond fide sojourning in 
 alien territory, or went there for the sole and evident purpose of 
 evading the restrictions of the law of their domicil.^ In either 
 case, if competent to mariy by the law of England, they contracted 
 a valid marriage if it conformed to the requirements of the law 
 of the country in which they formed their union. 
 
 Certain exceptions to the rule requiring conformity to the lex statutory ex- 
 loci celebrationis have been made in favour of marriages of British "^^ '°°'' 
 subjects or where one of the contracting parties is a British 
 subject celebrated outside of the United Kingdom before the 
 proper officer, and in accordance with the statutory requirements.' 
 
 ^ It IB true that the Code Civil of France, Act 3, enacts that, " les lois ooncernant 
 I'etat et la capacite des personnes regiasent les Francais mSme residant en pays 
 etranger," yet there is no principle ever acknowledged by jurists which would compel 
 the English courts to recognize incapacities by French law which were not incapacities 
 by the English when a French subject was a litigant before them. Article 170 pro- 
 vides, " Le mariage contracte en pays etranger entre Francais, et entre Francais et 
 etrangers, sera valable, s'il a ete celebre dans les formes usitees dans le pays, pourvu 
 qu'U ait 6t4pric6d6 des publications prescrites par I'article 63, au titre des actes de 
 I' Stat civil, et que le Frangais n'ait point contrevenu aux dispositions contenues au 
 chapitre pricddent. ' ' 
 
 '' The Gretna Green marriages afford a clear and unmistakable instance and proof 
 that the English courts recognised as valid marriages celebrated abroad and satisfying 
 the requisites of the foreign country. The parties who went across the Border could 
 not, and did not, conceal that they went to Scotland for the sole purpose of evading 
 the law of England, which required the consent of the proper parties to a valid 
 marriage. When they had made themselves man and wife by the ceremony per verba 
 de ^ossenti, valid enough in Scotland, though not in England, they turned back, and 
 their marriage was never questioned, or if questioned, upheld. See Gardner v. Att.- 
 Gen., 60 L. T. 839. 
 
 2 For other exceptions to the doctrine that conformity to the lex loci, at any rate 
 in the matter of forms and ceremonies, is needful for a valid marriage, see post, 
 chap, xviii. 
 
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1 08 HUSBAND AND WIFE. [part i. 
 
 55 & 56 Vict. This branch of the law has been codified by the Foreign Marriage 
 
 ''■''^' Act, 1892.' The marriage is to be celebrated by or in the 
 
 Marriage presence of a marriage officer.^ A marriage officer is one 
 
 officers. authorized by a warrant issued, signed by a Secretary of State, or 
 
 one who, under the marriage regulations of the Act, is authorized 
 
 to act without such warrant.^ The following may be authorized 
 
 by warrant to act as such — (a) A British ambassador, and any 
 
 officer prescribed as an officer for solemnizing marriages in the 
 
 official house of an ambassador ; (&) a British consul," (c) a British 
 
 governor, high commissioner, or resident or consular, or other 
 
 officer appointed to act in their place as such marriage officer;' 
 
 (d) the commanding officer on board one of H.M. ships on a 
 
 foreign station." A marriage officer shall not allow a marriage 
 
 to be solemnized in his presence, if in his opinion such would be 
 
 inconsistent with international law or the comity of nations.' 
 
 Marriages in Official House of British Amiassador. — A British 
 ambassador, if authorized by warrant, or any officer prescribed as 
 a marriage officer^ may solemnize a marriage in the ambassador's 
 official house, or in the Embassy chapel, if declared under the 
 Act to be part of the official house." Where the marriage can 
 be solemnized at a British consulate, the marriage is not to be 
 solemnized in the Embassy house without the leave of the 
 ambassador." 
 
 Marriages in Official House of British Consid. — A consul, if 
 authorized by warrant as a marriage officer may solemnize in his 
 official house." 
 
 Marriages in Officicd House of British Governor. — A governor, 
 high commissioner, resident, consular or other officer, or a person 
 appointed to act as a marriage officer in his place, if authorized 
 by warrant, may solemnize marriage in his official house.''^ 
 
 Marriages on Board H.M. Ships. — The commanding officer of 
 one of H.M. ships on a foreign station, if authorized by warrant 
 as a marriage officer, may solemnize marriage on board of her." 
 One of the parties to a marriage solemnized by any of such 
 
 ^ SS & 56 Vicf. u. 23, repealing the following statutes 4 Geo. IV. i;. 91 ; 12 & 13 
 Vict. c. 68 ; 31 & 32 Vict. c. 61 ; 53 &S4 Vict. c. 47 ; 54 & SS Vict. c. 74. 
 
 ^ ^ect. 8. _ _ 3 Sect. 11 (a) and (6). 
 
 I his expression includes consul-general, consul, vice-consul, pro-consul, or con- 
 sular agent. Sect. 24. 
 
 -v«- ^ I°,s«oh cases the application of the Act is not limited to places outside Her 
 majesty's domiuious. Sect. 11, sub-s. 2 (c). 
 
 " Sect. 12. 
 
 ' Sect. 19. There is, however, a right of appeal to a Secretary of State agamst 
 
 « Sect. 2i_ (/). => Sects. II, 21 (J), 
 
 iiegulations made by Order in Council under sect. 7 of the Act, dated October 4, 
 IS92 (London Gazette, November 4, 1892, p. 6161). 
 
 " The official house is the office at which the business of such officer is transacted. 
 Sect. II. sub-s. 2 (c). 13 Sect. 12. 
 
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CHAP. VI.] ESSENTIALS OF MARRIAGE. 109 
 
 marriage officers must be a British subject, or the marriage will 
 not be deemed valid.^ 
 
 Stattitory Beqtcirements for a Valid Marriage. — These are based 
 on the Marriage Registration Acts. One important alteration was 
 introduced by the Foreign Marriage Act, 1891, which has been 
 preserved by the present statute — viz., the abolition of the 
 " licence for marriage ; " and a marriage can only be solemnized 
 after the notice has been posted for fourteen consecutive days." 
 
 A notice stating names, condition, and residence of the parties, Notice, 
 &c., must be signed by one of them and given to the marriage condiUont™'^^' 
 officer within whose district hotli of the parties have had their residence. 
 residence not less than one week preceding the giving of the 
 notice, which must state that they have so resided.^ This notice Notice sus- 
 is to be filed and a copy suspended in a conspicuous place in the fourteen'days. 
 office during fourteen consecutive days;* after which the marriage 
 may be solemnized at the official house of the marriage officer, 
 with open doors, between 8 a.m. and 3 P.M., before two or more 
 witnesses. The marriage must be solemnized either by the soiemaization 
 marriage officer or in his presence, whether it is according to the marria^^e'"^ ° 
 rites of the Church of England, or after any other form or officer. 
 ceremony." 
 
 A caveat may be lodged with the marriage officer, and the Caveat. 
 marriage is not to be solemnized until such caveat is withdrawn, 
 or the marriage officer is of opinion that it ought not to obstruct 
 the marriage. ° 
 
 The marriage must be solemnized within three months after Notice good 
 giving the notice, or such notice will be void.' monthroniy. 
 
 Before the marriage the parties must make and subscribe an Oath before 
 oath of belief of no impediment to the marriage by reason of °'*™*s®- 
 kindred or alliance; that both have had for three weeks immediately 
 preceding their usual residence within the district of the marriage 
 officer ; and, where either of the parties, not being a widower or a 
 widow, is under twenty-one, that the consent of the proper parties 
 has been obtained.' The punishment for making a false oath 
 and notice is the penalties of perjury,^ and if any interest has 
 accrued to the offending party by reason of the marriage, the 
 Attorney-General may sue for the forfeiture of such interest.'" 
 
 The above requirements may be modified in the case of marriages 
 to be solemnized on board ships of war on a foreign station." 
 Under the Eegulations of October 2, 1892, these have been 
 modified in respect of these marriages by providing that not less 
 
 ^ Sect. I. See Fertreis v. Tondear, i Hag. Con. R. 136. 
 
 2 Sect. 3. » Sect. 2. * Sect, 3. 
 
 5 Sect. 8. " Sect. 5. ' Sect. 5. 
 
 8 Sect. 7. » Sect. 15. ^^ Sect. 14. " Sect, 12. 
 
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no 
 
 HUSBAND AND WIFE. 
 
 [PAET 
 
 marriages 
 solemnized 
 under the lex 
 loci. 
 
 than three weeks' notice of the intended marriage should be given 
 in such public manner or to such relations or friends of the parties 
 as to satisfy the commanding officer that as much notice of the 
 intended marriage had been given as if it had taken place in 
 England, and that it was not clandestine. 
 Eegietrationof If a marriage is duly solemnized according to the lex loci, 
 where one of the parties is a British subject, a British consul 
 who has personally attended at such marriage may register the 
 marriage in accordance with the marriage regulations as 
 having been so solemnized.' If a marriage by the lex loci is 
 recognized as valid by English law, such ought not to take place 
 at an Embassy or consulate unless the marriage officer is satisfied 
 that both parties are British subjects ; or if one only is a British 
 subject, the other party is not a subject of the country in which 
 the marriage is to be solemnized ; or if one is a British subject 
 and the other a subject of the country, that sufficient facilities 
 for the marriage in that country in accordance with the local law 
 do not exist. ^ 
 
 As a general remark affecting these foreign marriages, it may 
 be worth while to observe that where one of the parties is not a 
 British subject more caution should be observed, because, though 
 such a marriage would be good by English law ; ^ yet, unless the 
 other party had conformed to the requirements of his or her 
 country, the marriage might there be treated as null and void. 
 Consuls under such circumstances should warn the parties intending 
 to contract a mixed marriage, that the lex loci does not necessarily 
 recognize its validity. The British consul, who may now attend 
 a marriage solemnized according to the forms required by the 
 lex loci, and register that marriage under the above Act will no 
 doubt satisfy himself that the native subject has conformed to all 
 the proper formalities required by the lex loci.'* 
 
 Marriages within the Lines of the British Army serving Abroad. 
 — Marriages solemnized within the British army by any chaplain 
 or officer, or any person officiating under the orders of the com- 
 manding officer of a British army serving abroad, shall be effectual 
 and valid.* This is a statutory recognition of the principles of 
 law laid down by Lord Stowell in Ending v. Smith.^ It is not 
 necessary that there should be a state of actual hostility.' 
 
 There is no judicial decision which has recognized, or statute 
 Shipping Act, which validates, a marriage celebrated on board of any British 
 i8s4,asto merchant ship ; but the Merchant Shipping Act, 1854,' provides 
 
 1 55 & 56 Vict. c. 23, s. 18. 2 Eegulation No. 4. 
 
 - Be Wright's Trusts, 25 L. J. Ch. 621 ; Llmjd v. Petitjean, 2 Curt. 251. 
 
 * See s. 18. 5 Sect. 22. « 2 Ha?. Con. E. 371. 
 
 '' The Waldegrave Peerage, 4 CI. & F. 649. » 17 &''i8 Vict. c. 104, s. 282. 
 
 Provisions of 
 the Merchant 
 
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CHAP. VI.] ESSENTIALS OF MAEEIAGE. Ill 
 
 for the entry by the master in the official log-book of any marriage marriages 
 taking place on the vessel. If both parties were British subjects, boa^r'dTwp. "^ 
 and were married by a minister in recognized orders, the marriage 
 would probably be upheld, on the ground that British emigrants 
 carry with them the common law of the country, until, ratione loci, 
 they become affected by some other law. 
 
 Marriages in India. — Before 185 i British subjects in India Marriages in 
 were held capable of contracting a valid marriage, per verba de 
 prcesenti, and without the intervention of a minister in holy 
 orders ; ' since then legislation has placed the marriage laws of 
 that great dependency on much the same basis as those of 
 England. The chief statutes are : — 
 
 a. 1 4 & I S Vict. c. 40, an English Act, which provided for 
 the appointment of marriage registrars in India. 
 
 b. The Indian Act of 1852 [Act V. of 1852], passed to give 
 effect to the provisions of the English Act of the previous year. 
 
 c. The Indian Marriage Act, 1872 [Act XV. of 1872], enabling 
 marriages between European British subjects to be celebrated : — 
 
 a. By any person who has received Episcopal orders, provided Clergyman in 
 the marriage be celebrated according to the rites and ceremonies orderaT" 
 of the Church of which he is a member. 
 
 B. By any clergyman of the Church of Scotland, with the like Clergyman of 
 
 . , , T • the Church of 
 
 provision as m the preceding case. Scotland. 
 
 -y. By or La the presence of a marriage registrar under the Marriage 
 provisions of 14 & 15 Vict. c. 40, or Act V. of 1852. regis rar. 
 
 B. By any minister of religion who, under the provisions of Authorized 
 the Act, has obtained a licence to solemnize marriages. religion. 
 
 Marriages in the Colonies. — The legislative bodies of the various Marriages in 
 colonies have the authority to pass laws regulating and providing 
 for [inter alia\ marriages within their respective jurisdictions, 
 which become of full effect on receiving the royal assent. 
 Marriages celebrated in accordance with the terms of such local 
 Acts are to be held valid in all parts of the British Empire.^ 
 In cases where doubts have arisen from time to time as to the 
 validity of marriages celebrated under various circumstances, and 
 in various places, both at home and abroad, the Legislature is in 
 the habit of passing Acts validating such marriages. 
 
 1 Maclean v. Oristall, Perry's Oriental Cases, 75. 
 
 2 28 & 29 Vict., c. 64. 
 
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CHAPTER YII. 
 
 ACTION rOE, BREACH OF PROMISE OF MARRIAGE. 
 
 PAGE 
 
 HiSTOEiCAL Sketch of the Action . . . 112 
 
 conteact must be mutual 113 
 
 Damages: Compensation foe Loss op Advancement . 114 
 Peomisb to Maeey a Peomise to Maeey within Reason- 
 able Time 114 
 
 Evidence : Paetibs to Action Competent Witnesses . 115 
 
 COEEOBOEATION OP PLAINTIPP'S EVIDENCE . , . . II 5 
 
 Peomise within Infant's Relief Act, 1874. . . . 116 
 Peomise not within Statute op Frauds . . .116 
 
 Action will not Lib Against Peomisoe's Exbcutoes . 117 
 
 Exception 117 
 
 Defences to Action : 
 
 False Repeesentation as to Pecuniaey Ciecumstances i 18 
 Secebt Disposition ofjPeopeety by Plaintiff to Db- 
 
 PEAUD Defendant 118 
 
 Geounds foe Nullity op Maeeiage ... 118 
 Bad Chabactee of Plaintiff subsequently Discovered i 18 
 Subsequent Bad Conduct op Plaintiff towards De- 
 fendant 119 
 
 Release by Plaintiff 119 
 
 This action has been maintainable in the English courts for some 
 three hundred years. In the times before the passing of Lord 
 Hardwicke's Act such actions were not very favourably regarded ; 
 but in 1674 the first leading case on the subject' unmistak- 
 ably decided that an action for such a breach would lie, notwith- 
 standing it might be possible to enforce the marriage by a suit 
 in the ecclesiastical courts. It has been shown in an earlier 
 chapter " that clandestine marriages entered into iper verba de 
 prmsenti or per verba de fidioro cum copuM, enabled one of the 
 parties to sue in the ecclesiastical courts to compel the . solem- 
 nization of the marriage regularly in facie ecclesia;. The enter- 
 tainment of these suits by the secular courts was considered an 
 infringement of the prerogatives of the ecclesiastical. The juris- 
 diction of the temporal courts in JDickison v. Holcroft^ was 
 
 1 Dichison v. Holcroft, 3 Keb. 148. 
 
 ^ " A Short History of the Marriage Laws of England," chap. ii. pp. 13 et seq. 
 
 ' 3 Keb. 148. 
 
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CHAP. VII,] BREACH OF PROMISE. 113 
 
 founded on the proposition that the promise to marry was a 
 temporal matter, and so damages consequent upon the non- 
 fulfilment of the promise were within the cognizance of the 
 temporal courts. The execution of the marriage itself belonged 
 solely to the spiritual courts. 
 
 Since the Marriage Act of 1753,' which by its 13th sec- Actions 
 tion took away the right of compelling the celebration in facie the passing of 
 ecclesim of clandestine marriages per verba de prcesenti and per ^P""^ ?*r^t 
 verba de fwturo cum copuld, as might be expected, these actions 1753- 
 have increased in number, as the other remedy in the spiritual 
 courts has been taken away ; for the ordinary relations of the 
 parties to modern actions of breach of promise of marriage would 
 formerly, in many instances, have constituted valid grounds for a 
 decree for the celebration of the marriage in facie ecclesice.^ Had 
 the Statute of Precontracts ^ continued in its entirety as the law 
 for any length of time, Vaughan, O.J., in Bichison v. Holcroft^ 
 would never have quoted an isolated instance of this action in the 
 reign of Queen Elizabeth ; for that statute, anticipating Lord 
 Hardwicke's Act, deprived the parties of their remedy in the 
 spiritual courts to compel a regular celebration of a clandestine 
 marriage, by which they might avoid a subsequent regular mar- 
 riage perfected by consummation. The more complete freedom 
 allowed to women may be another reason for the frequency of 
 these actions at the present day. 
 
 In order to found this action it is necessary that the parties a valid con- 
 shall have mutually entered into a valid contract to marry ; for must be™* 
 a mere promise to marry made to one party would not be suflB- ™"*°*'- 
 cient for the purposes of this action unless accepted by the other. 
 The promise and acceptance, however, need not be concurrent, 
 but must be within a reasonable time of each other.* An 
 expression of intention to marry a person not in the hearing 
 of the person intended or communicated by the authority of 
 the party expressing the intention, does not amount to such a 
 promise as to sustain this action.^ On the other hand, it has 
 been held that the promise to marry need not necessarily be 
 
 1 26 Geo. II. c. 33. 2 Yiyigall v. Veness, 4 F. & P. 344. 
 
 3 32 Hen. VIII. c. 38. ^ 3 Keb. 148. 
 
 ^ VineaJl v. Veness (vhi sup.). In this case Bramwell, B., said : " To consti- 
 tute a contract of marriage it must be mutual, and bind both parties. It was not 
 enough that the defendant was willing and desirous to marry the lady unless she had 
 bound herself to marry him . . . and if the jury thought there had been no such 
 final assent until so long after the defendant's ofier, that he might fairly be deemed to 
 have retracted, and if she had held back, in fact, until then, she was too late. The 
 assent on her part ought to have been as binding on her as upon him, and within a 
 reasonable time. A man was not to be bound for ever, and the lady to have him or 
 not at any future time. It was not necessary that the mutual assent should be con- 
 current, but it must at all events be within a reasonable time." 
 
 « Cole V. Oottingham, 8 C. & P. 75- 
 
 H 
 
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114 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Damages. 
 
 Compenaation 
 for loss of 
 positive ad- 
 vancement in 
 the world. 
 
 Sentimental 
 damages. 
 
 Special dam- 
 ages for 
 seduction. 
 
 A promise to 
 marry is a 
 promise to 
 marry within 
 a reasonable 
 time. 
 
 made in so many words; but the conduct, demeanour, and 
 behaviour of persons towards each other may constitute proof 
 of the contract.' 
 
 The gist of the suit is compensation sought for the loss of 
 positive advancement in the world. Marriage is deemed to be 
 advancement in the world, and the reasonable expectations of 
 enjoying this advancement when frustrated are to be compensated 
 by pecuniary damages ; just as in other affairs of life, when one 
 party to a contract refuses to fulfil his share of it, he is either 
 compelled specifically to perform it, or is mulcted in damages to 
 the amount of the probable loss occasioned to the other party by 
 his refusal. Specific performance of the marriage promise can 
 no longer be decreed. This action, therefore, is equally open to 
 the man as to the woman. What are known as " sentimental 
 damages," such as for injured feelings and the like, on the breach 
 of this contract alone are allowed to be reckoned in the assess- 
 ment of the fine ;^ and the strict pecuniary loss caused by the 
 breach of the defendant — e.g., loss of an establishment in life, or 
 a share of the affluence of the defendant,^ is not the only item 
 taken into consideration. This action is given as an indem- 
 nity to the injured party for the loss sustained, and has been 
 always held to embrace the injury to the feelings, affections, and 
 wounded pride as well as the loss of marriage."* The damages, of 
 course, vary with the wealth of the defendant. It is now allow- 
 able to join for damages for the breach of the contract to marry 
 a claim for special damages for seduction.* 
 
 A promise to marry, without more, is a promise to marry 
 within a reasonable time, otherwise no breach could be as- 
 signed f but a conditional promise to marry is perfectly valid, 
 and no action will lie until the time for its completion is arrived.' 
 If, however, a defendant before the fulfilment of the condition 
 absolutely refuses to carry out his part of the contract, an action 
 will lie ; ^ so, too, where the contract is executory, and the de- 
 fendant puts it out of his power to fulfil it, as where he marries 
 in the meanwhile.' A married man or woman can make a valid 
 promise of marriage, for it is possible that he or she might be- 
 come free to perform the promise.'" This has been so held on the 
 
 ^ Eickey v. Campion, 20 W. E. 752. 
 2 Frost V. Knight, L. R. 7 Ex. iii. 
 
 ^ Jones V. James, 18 L. T. 243 ; Berrii v. Da Costa, L. R. 1 C. P. 243. 
 « 2 Sedgwick, Damages, 146. ^ Millington v. Loring, 6 Q. B. D. tgo. 
 
 « Fotter V. Deboos, i Stark, 82. !■ Atchinson v. BaJcer, Peake, Add. Cas. 103. 
 
 « lirost V. Knight, L. R. 7 Ex. in ; Donaghue v. JJarshall, 32 L. T. 310. 
 » Sarrison v^ Cage et uxor, 1 Ld. Raym. 386 ; Caines v. Smith, 15 L. J. Ex. 
 ^,^ See also Sarw!/ v. Johnston, 17 L. J. C. P. 298 ; Short v. Stone, 8 Q. B. 358. 
 Wild V. Hams, 18 L. J. C. P. 297; Mittward v. Littlewood, 20 L. J. Ex. 2. 
 
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CHAP. VII.] BEEACH or PROMISE. 115 
 
 ground that though seemingly the contract on the part of the 
 married person to marry the plaintiff was illegal, yet the plain- 
 tiff's remaining unmarried through the conduct of the defendant 
 was prejudicial, and so a good consideration for the original pro- 
 mise to marry.* Knowledge of the married state of the defendant 
 at the time of the promise would be fatal to the plaintiff's claim 
 for damages.^ 
 
 The plaintiff and defendant in this action are now competent Plaintiff and 
 witnesses since the passing of the Act of 32 & 33 Vict. c. 68.' competent wit- 
 By section 2 it is enacted that " the parties to any action eacrother^"^' 
 for breach of promise of marriage shall be competent to give 
 evidence in such action ; " but with the following qualification : 
 " That no plaintiff in any action for breach of promise of Plaintiff's evi- 
 marriage shall recover a verdict unless his or her testimony shall mise must be 
 be corroborated by some other material evidence in support of ''°'"''°^°™*®'^- 
 such promise." This evidence, if material, need not be of a 
 robust kind to corroborate the story of the plaintiff. The corro- 
 boration of the promise may be facts showing conduct of the 
 parties before the promise itself was made.* 
 
 The leading case on this point is Bessela v. Stern.'' The plain- sesseia v. 
 tiff in this case had had a child by the defendant, and alleged 
 that he had promised to marry her. The corroboration put for- 
 ward to support the promise was contained in two- conversations ; 
 one between the plaintiff's sister and the defendant previous to 
 the birth of the child, in which the defendant told the sister of 
 the plaintiff that he would marry the latter, or do anything if she 
 would not expose him ; the second was after the birth of the child 
 .between the plaintiff and defendant, and overheard by the plain- 
 tiff's sister ; the plaintiff reproached the defendant, and said : 
 " You always promised to marry me, and you don't keep your 
 word." This statement, the sister declared, he did not deny. 
 Grove and Denman, JJ., sitting as a Divisional Court, were of 
 opinion that such evidence was not a material corroboration of 
 the promise within the meaning of section 2 of 32 & 33 Vict. 
 c. 68. The Court of Appeal, ° however, reversed their decision, 
 Cockburn, C. J., saying, " The evidence given in corroboration need 
 not go the length of establishing the contract ; if the evidence 
 support the contract, it is enough." Bramwell, L.J., said : "If 
 we were to hold that that (referring to the conversation overheard 
 
 ' WUdy. Harris (ubisup.) 
 
 2 See dictum of Pollock, C. B. in Millward v. lAttUwood [uhi sup. ) 
 
 3 Evidence Further Amendment Act, 1869. 
 
 < mkox V. Ootfrey, 26 L. T. 481. See also Bichey v. Campion, 20 "W. E. 752. 
 
 5 2 0. P. D. 265. 
 
 ^ Consisting of Cockturn, C. J., and Bramwell and Brett, L. JJ. 
 
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116 HUSBAND AND WIFE. [part i. 
 
 by the sister) was no evidence of a promise, we should get rid 
 
 01 a great deal o£ evidence which is given every day at nisi 
 
 prius." But the mere fact that the defendant does not answer 
 
 letters written to him by the plaintiff, in which she writes that 
 
 he had promised to marry her, is not corroborative evidence of 
 
 the plaintiff's evidence of such promise within the meaning of 
 
 this Act.' 
 
 Promise to The promise to marry is a promise within section 2 of the 
 
 thrinflnS'" Infants' belief Act, 1874,' which renders ineffectual any ratifica- 
 
 Reiief Act, tion made after full age, of any promise or contract made during 
 
 ^ ^*' infancy, whether there shall or shall not be any new consideration 
 
 Infant may for such promise or ratification after full age. No action will lie 
 
 tton^foTbrea'ch against an infant for breach of a promise to marry made while an 
 
 against an infant, vet such infant may sue for a breach by the other party 
 
 adult. ' *' •' „ . Z 
 
 if an adult.' Ratification made after age 01 a promise made 
 New promise before age, will not be treated as a fresh promise in order to 
 must beuncon- take the case out of the above section, unless there is clear 
 nected with evidence that the new promise is quite independent of the promise 
 during in- made during infancy;* and where there is evidence of a new 
 ^' promise by the defendant on attaining majority it then becomes 
 
 a question for the jury to say whether or not the words used 
 amount to a mere ratification of the old promise or establish a new 
 promise.'* But in order to render the principle of the Act effective, 
 if a new promise is alleged, evidence of something more than a mere 
 ratification must be given indicating an intention on the part of 
 the defendant after attaining full age to make a new promise; 
 and evidence of language which is equally consistent with a ratifi- 
 cation of the old promise as with a fresh promise is insufficient.'' 
 Promise to This promise was formerly held to be within the Statute of 
 
 marry not _, , 
 
 within Statute Frauds, and so required the evidence and proof of writing ; ' but 
 that doctrine has been long exploded, and a promise in writing is 
 not necessary to found an action.* 
 
 If the circumstances of the case make it impossible to prove 
 an express promise either by letters, or by a distinct promise to 
 marry made in the presence of parties other than the plaintiff 
 and defendant, evidence of the conduct of the parties, and how 
 they were regarded by their relations and friends maybe tendered 
 
 ' Wiedemann v. Walpole, [1S91] 2 Q. B. 534. 
 
 2 37 & 38 Vict. c. 62. Coxliead v. Mullis, 3 C. P. D. 430 ; Northcote v. Doughty, 
 4 C. P. D. 385 ; DiicJiam v. WorraU, 5 C. P. D. 410. 
 ■* S'oU V. Ward Clarencieux, 2 Stra. 937. 
 
 "* Coxhead v. Mullis (uhi sup.) ; Holmes v. BrierUy, 59 L, T, 70. 
 = Northcote v. Doughty [uU sup.); Ditcham v. WorraU [uU sup.). 
 " Holmes v. Brierley [uhi sup.) 
 
 ' Com. Dig. Action on the Case upon Assumpsit (P. 3). 
 8 Corh V. Baher, i Stra. 34 ; Mountacue v. Maxwell, 1 Stra. 236. 
 
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CHAP. VII.] BEEACH OF PROMISE. 117 
 
 to show that they were an engaged conple, and were so treated 
 by their intimate acquaintances.^ 
 
 This action cannot be brought by or against executors or Action for 
 administrators of a deceased promisee or promisor on the principal ^fse'wai no"' 
 expressed in the maxim, Actio versoiialis moritur cum pcrsonA? ^'® against 
 
 ^ 111. • executors. 
 
 It IS founded on a breach or contract, but the injury is personal 
 in respect of which damages are given ; but the damages may be 
 increased by circumstances of aggravation on the part of the 
 promisor, and lessened by the acts of the promisee. The ages and 
 the general behaviour of the respective parties may be taken into 
 account.' With the death of the promisor all claim to damages 
 of a sentimental or exemplary kind ceases. Whether the action 
 will lie at the suit of or against executors, if there has been a 
 pecuniary loss resulting to the promisee's estate is not quite clear ; 
 in Chamberlain v. Wilson* the Court thought if there was a strict 
 pecuniary loss then the action would survive the death of the 
 promisee; and several American cases following the dictum in 
 Chamberlain v. Williamson have so decided : but Lord Bsher, 
 M.E., has doubted whether the action would lie against executors 
 even when special damage is alleged.* 
 
 If the promisee has suffered any special damage such must be without 
 specifically alleged and pleaded ; and the mere allegation of special founded on*^* 
 damage will not open the case against the defendant's executors another and 
 
 ° , ■'^ ° _ _ oontemporane- 
 
 and make them liable. Such special damage can only exist where ous promise. 
 in addition to the promise to marry, there existed contempora- 
 neously with that promise another promise affecting the personal 
 property of the one party or the other, which promise would be 
 one of the considerations or part of the consideration for the 
 promise of the other party. Such promise must either be 
 expressed, or circumstances must show that the special damage 
 arising from the breach of such promise must have been in the 
 contemplation of the parties at the time of making the promise." 
 Damages for seduction and birth of a child are not such special 
 damage as will survive against an executor.' 
 
 The defences to the action for breach of promise of marriage. Defences to 
 or reasons why the defendant should be held harmless for non- * ^ *" '™- 
 fulfilment of the contract, are for the most part based upon 
 fraud, or something akin to fraud, on the part of the plaintiff. 
 
 1 Daniel v. Bowlee, 2 C. & P. 553. 
 
 ^ Chamberlain v. Williamson, 2 M. & S. 408. Finlay v. Chirney, 20 Q. B. D. 494. 
 
 ' Per Lord Esher, M.E., in. Finlay v. Ohirney {ubi swp.). 
 
 * 2 M. & S. 408. ^ Finlay v. Ohirney (ubi sup.). 
 
 * Finlay v. Ohirney (ubi sup.) 
 
 ' Ibid. See tiie important judgments in this case of Bsher, M.R., and Bowen, L.J., 
 as to what is not but may be special damage capable of founding an action that will 
 survive the death of the promisee. 
 
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118 HUSBAND AND WIFE. [part i. 
 
 In putting them forward, the defendant alleges that the promise 
 to marry would never have been made or accepted had the true 
 state of facts connected with the plaintiff been fully disclosed 
 before the making or accepting of the promise. 
 False represen- i. A false representation, or fraudulent concealment in material 
 to*'°ecuniar particulars, of the pecuniary circumstances or previous life of the 
 
 circumstances, plaintiff.' 
 
 Secret disposi- ii. A secret disposition of the plaintiff's property, with a view 
 perty°by plain- to defraud the defendant of a just share of its enjoyment; but 
 tiff to defraud f ^ ^^ ^^ ^f tjjg egsence of such secret disposition.' It 
 
 defendant. . . 
 
 would seem doubtful whether, if the woman possessed ot property 
 desired to settle it to her separate use, contrary to the man's 
 wish, and he refused to marry her for that reason, and she brought 
 an action for the breach, the defendant would have a good defence 
 to the action : perhaps it would be difficult to imagine an action 
 brought under such circumstances. This fraudulent disposition 
 of the woman's property would appear to be a good defence even 
 under the altered state of the law as to the marital rights of 
 a husband, because he may have looked forward to share in the 
 woman's fortune under a settlement. 
 Grounds for iii. Impotency of the plaintiff discovered after the promise is 
 riage.'^° ""*'' ^ good defence. Impotency of the man or woman is an impedi- 
 ment to a marriage and ground for a suit for nullity, and so 
 would clearly entitle either of the parties, on the discovery of 
 such an impediment to rescind the contract. But it is not open 
 for either party to set up his or her incapacity.^ The bodily 
 infirmity of the one party discovered by the other after the 
 making of the contract is a good reason for breaking off the 
 Lunacy. engagement." Again, lunacy, either at the time of the making 
 
 or the breaking of the promise, is a good defence to the action ; 
 but not if the defendant, though lunatic before or after, was at 
 either of those periods of sound mind, or was of sound mind before 
 and after the making of the promise.^ Slight bodily or mental 
 infirmities discovered after promise made are not sustainable 
 grounds for a breach of the contract. 
 Bad character iv. If the defendant can prove that the plaintiff, being a 
 discovered. ^ woman, was of bad character, he will have a good defence to this 
 action when brought by the woman whom he promised to 
 marry." Thus, where it was proved that the plaintiff had had 
 a child, and the defendant was not its father, and that the 
 
 1 Foulkes V. Selhoay, 3 Esp. 336 ; Wharton v. Lewis, i C. & P. 529 ; Soram v. 
 Humphreys, LofEt, 80. 
 
 •| I Rop. H. & W. 166 n. 3 Hall t. Wrtyht, 29 L. J. Q. B. 43. 
 
 ■• Atchinson v. Baker, Peake, Add. Uas. 103. 
 
 5 Baler v. Cartwright, 30 L. J. C. P. 364. Public policy, however, should make 
 this an effective defence. » Foulkes v. Sdlway, (uhi sup). 
 
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CHAP. VII.] BREACH OF PROMISE. 119 
 
 defendant broke his promise because be had found the plaintiff to 
 
 be a loose and immodest woman, and that he was unaware of her 
 
 character at the time of making the promise, the jury were directed 
 
 to find a verdict for the defendant.' But if the defendant knew if character 
 
 at the time of making the promise that the woman was of a loose dantbound™' 
 
 and immodest character, he is bound by his promise.^ 
 
 V. If the plaintiff's conduct towards the defendant since the Subsequent 
 making or acceptance of the promise has been violent, or rough, or warda'defen- 
 or brutal, the defendant is entitled to say that he or she will not ''*"*• 
 intrust his or her lifelong happiness to the keeping of such an 
 one.' 
 
 vi. A release by the plaintiff of the defendant is a good Eelease by 
 defence ; a plea, therefore, that before breach the plaintiff had ^ 
 absolved, exonerated, and discharged the defendant was held, on 
 its proof, to entitle him to a verdict.'' Such discharge or release 
 may be proved by the parties not corresponding or meeting for a 
 long time, as for instance, two years.^ 
 
 A prior engagement of the defendant is no defence, though a Prior engage- 
 fraudulent concealment of a previous engagement on the part offence, 
 the plaintiff might decidedly affect the plaintiff's right to recover.' 
 
 1 Baddeley v. Mortlock, Holt, 151 ; Irving v. Oreenwood, i C. & P. 350; Bench 
 v. Merrick, i C. & K. 463 ; Ycmng v. Mwphy, 3 Scott, 379, 
 
 ^ See Irving v. Greenwood (ubisup.), and Bench v. Merrick {uhi sup.). 
 
 ' Leeds v. Oook, 4 Esp. 257. 
 
 * King v. Gillett, 7 M. & W. 55 ; Davis v. Bomford, 30 L. J. Ex. 139. In this 
 case the defendant asked the plaintift' to return him his letters, which she refused to do, 
 but subsequently went away to reside at a distance. 
 
 5 Davis V. Bomford (uii sup.). 
 
 ^ Beachey v. Brown, 29 L. J. Q. B. 105. 
 
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CHAPTER VIII. 
 
 MARRIAGE SETTLEMENTS. 
 
 PAGE 
 
 What is a Mabeiagb Settlement 121 
 
 Objects of a Mabeiagb Settlement 122 
 
 M. W. P. Act, 1882, DOES NOT affect Maebiage Settle- 
 ments 122 
 
 Tbustebs : Intbevbntion still Requisite .... 123 
 
 Who can make Mabeiagb Settlements .... 124 
 
 Infants' Settlement Act, 1855 124 
 
 Settlements Founded on Valuable Consideeation . 126 
 Antenuptial Agbbements : 
 
 Maebiage Aeticles 126 
 
 Final Settlements ; in Puesuancb of Mabeiagb 
 
 Aeticles 127 
 
 Not in Puesuancb of Maebiage Aeticles . 127 
 Post-nuptial Settlements : Based on Maebiage 
 
 Aeticles 128 
 
 Wheeb Valuable Consideeation moves aftbe 
 
 Maebiage ....... 129 
 
 voluntaby settlements : when void and not 
 
 Void 130 
 
 Husband's Inteeest undee a Settlement .... 131 
 
 Covenants in Settlements : By Thied Pasties . . 132 
 
 By Husband 132 
 
 By Wife 133 
 
 To Settle Wipe's Aftbe- Acq uibbd Peopeety . . 133 
 
 Joint Covenant by Husband and Wife : Effect . 134 
 
 Covenant by Wipe dubing Minoeity : Effect . . 135 
 
 Effect of M. W. P. Act, 1882 135 
 
 What Pbopbbty may be Settled 137 
 
 Husband's Covenant to Settle his aptbe Acquibed 
 
 Peopeety 139 
 
 CONSTEUCTION OP SETTLEMENTS : MAEEIAGE ABTICLBS . I4I 
 
 Final Settlements 142 
 
 CONTEACTUAL CAPACITY DEPENDS ON LEX DOMICILII . I43 
 
 Enpoecement op Settlements : Settlements within the 
 
 Statute op Feauds 143 
 
 Specific Peefoemance 145 
 
 Who can Enfoecb Settlements 146 
 
 Rights op Voluntebes 147 
 
 Rectification of Settlements : In Puesuancb of Mabeiagb 
 
 Aeticles 150 
 
 Mistake 151 
 
 Pbaud 152 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 121 
 
 PAGE 
 158 
 
 159 
 
 Eevocation and Setting aside of Settlements 
 
 Settlements ajtfbcted by 13 Eliz. c. 5 . 
 Who may Impeach the Settlement 
 Effect of M. W. P. Act 1882 
 
 Settlements Affected, 27 Eliz. c. 4 . 
 
 When Volunteers Capable of Enpoecing the Trusts 160 
 
 Settlements Affected by Bankruptcy Act, 1883 , . 160 
 Married Women Separate Trader Liable to BanK' 
 
 EUPTCY Law 161 
 
 Power of Divorce Court to Vary Settlements: 
 
 On Dissolution op Marriage 163 
 
 On Decree of Nullity 163 
 
 Under Restitution of Conjugal Rights Act, 1884 . 164 
 But not on Judicial Separation 164 
 
 This chapter will be divided into seven sections for convenience of 
 reference, as follows : 
 
 1. Introdactory. 
 
 2. Settlements generally : (a) Those founded on valuable con- 
 
 sideration ; (6) Voluntary settlements. 
 
 3. Covenants in settlements. 
 
 4. Construction of settlements. 
 
 5. Enforcement of settlements. 
 
 6. Rectification of settlements. 
 
 7. Revocation and setting aside of settlements. 
 
 Section i. 
 Introductory. 
 
 In the preceding chapters matters anterior to the state of Introductory, 
 matrimony have been discussed, the requisite rites and ceremonies, 
 what things must be done and conditions fulfilled before a valid 
 marriage can be contracted ; and in the immediately preceding 
 chapter, the penalty for entering into a matrimonial engagement 
 and not fulfilling it, when no lawful obstacles intervene. In this 
 chapter the agreements which are entered into between the in- 
 tended husband and wife and the other parties interested in the 
 marriage will be considered. 
 
 A marriage settlement has been described to be " an instru- what is a 
 
 ment executed before marriage, and wholly or partly in considera- ^ttSment. 
 
 tion of it, by which the enjoyment and devolution of real and 
 
 personal estate is regulated." ' Post-nuptial settlements, or 
 
 those executed by husband and wife, are also called " marriage 
 
 settlements ; " but, as will be seen, the consideration of marriage 
 
 is wanting. 
 
 1 Wat. Comp. Eq. 549. For a full disquisition on this important topic the reader 
 is referred to Vaizey on Settlements, and Bythcwood and Jarman's Conveyancing (4th 
 edit.), vol. vi. 
 
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VZ2 HUSBAND AND WIFE. [part i. 
 
 Marriage of In order to make a settlement in consideration of marriage 
 
 nece^sslry to fu% Operative, it is of course necessary that the intended marri- 
 the full opera- ^^^ should take place ; and where the parties, after settling their 
 
 tion of the o . -, ,.■ j.i_ j j j j. 
 
 settlement. property on certain trusts, and executing the deed, do not marry, 
 ,but show by their conduct that they consider the trusts of the 
 deed are at an end, the contract will be rescinded, and the trusts 
 of the settlement declared to be at an end.^ 
 Objects of a Now the object of a strict settlement made on marriage, 
 
 Uemenr ^^^' equally with that of the wider family settlement, is the preserva- 
 tion of property, real and personal, in a particular family, or in 
 the new group to be formed by the union of the spouses. By it 
 the dissipation of the property of the husband or of the wife by 
 reckless extravagance or unfair dealing is checked and prevented, 
 and the interests of the children, the fruit of the union, are safe- 
 guarded. Another object is the provision of a suitable mainten- 
 ance for the new household during the life of the parties and of 
 the survivor.^ The most important reasons (so far as this present 
 work is concerned) for the making of marriage settlements, are 
 the definite ascertaining of the rights of husband and wife in 
 each other's property, to make provision for the family life, and to 
 declare the interests of those who will be the fruit of the union, 
 or of those who are to take in default of such issue. 
 Marriage for- Marriage formerly operated at common law as a conveyance to 
 veyanceof the the husband (absolutely as regards her personalty, and for the 
 to thehu?-^'^*^P®'^^°*^ °^ coverture, or for life, as regards her realty) of all the 
 baud. property of the wife at the time of the marriage, and that which 
 
 was subsequently acquired by her ; save such as was settled to her 
 separate use in accordance with equity doctrines. The wife had 
 no corresponding right and advantage, though, it is true, she had 
 a right to be dowered of her husband's lands, and to share on his 
 intestacy in the third or half of his personal property, as the case 
 might be ; but since the Dower Act, 1834, he has been enabled 
 to defeat and determine her right to both kinds of property by a 
 M. w. P. Act, disposition during his life, or by will. The Married Women's 
 
 1882, does uot -p, . ° •' . -, , •, .1 
 
 iuterfere with x^roperty Actj 18 52," has wrought a considerable change m the 
 clrri^dTu^by relations of husband and wife, by making all property acquired by 
 means of mar- ber her own, and by giving her absolute control over it ; and both 
 ments. these facts have a material bearing on the present subject of mar- 
 
 riage settlements. This Act in no way affects the right and capa- 
 city of a husband or third party to settle property on the wife, 
 
 ^ Ussery v. Cowlard, 26 Ch. D. 191 ; Bond v. Walford, 32 Ch. D. 238. 
 
 ^ " There are three points to be looked at in a settlement— the destination of the 
 income, the mode in which the capital is to be limited to the children, and the way in 
 which it is to go if there are no children, who acqviire an indefeasible interest in it." Per 
 Baggallay, J. A., in Cogan v. Duffield, 2 Ch. D. 44, 49. » 45 & 46 Vict. c. 7S- 
 
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CHAP. Till.] MARRIAGE SETTLEMENTS. 123 
 
 nor does it prevent a wife from settling her property on marriage 
 in any manner she may think fit. On the contrary, it provides 
 that : " Nothing in this Act contained shall interfere with or affect 
 any settlement, or agreement for a settlement, made or to be made, 
 whether before or after marriage, respecting the property of any 
 married woman, or shall interfere with or render inoperative any 
 restriction against anticipation attached or to be hereafter attached 
 to the enjoyment of any property or income by a woman under 
 any settlement, agreement for a settlement, will, or other instru- 
 ment." ^ The effect of this change in the law is that a woman may, 
 after the coming into operation of the Act alone, and without any 
 covenant on the part of her husband, make a settlement of the 
 real and personal property to which she is entitled at the time of 
 her marriage, or acquired by her during coverture, as she might 
 have settled it previously to the passing of the Act, but subject 
 to the claims of her ante-nuptial creditors ; and that any settle- 
 ment existing before the Act will not be interfered with or 
 affected.^ 
 
 Owing to the unlimited control of the wife over her property Marriage 
 conferred by this Act, the matrimonial rights and duties of the reqm^g'^te°a9 
 spouses will require more than ever to be accurately ascertained, eve"", 
 defined, and set forth. Thus, the consideration of the subject is 
 as requisite as heretofore. 
 
 Every marriage settlement that is properly drawn provides for Trustees, 
 the appointment of trustees ; for without their intervention its Their inter- 
 provisions cannot be carried out with certainty, but are liable to reqvdsUe.'' 
 fnil. If the husband and wife entitled to property settled upon 
 their marriage obtained the legal estate and possession of it, it 
 would be difficult to prevent their so disposing of it as to defeat 
 the rights of their children ; so also, if there were no settlement, 
 and the husband obtained possession of his wife's property, his 
 rights would prevail, and it would be his to alienate as he might 
 please. The right of the wife to a share of her property under 
 such circumstances, known as her equity to a settlement, was 
 devised by the Court of Chancery as a protection ; but it could 
 only be exercised where the property was in the power of the 
 court.' It is to protect the interests of all parties, both those 
 in esse and those yet to be born, that trustees are appointed.'' 
 
 1 Sect. 19. 
 
 2 Where a woman married before the coming into operation of this Act (January I, 
 1883) has entered into a binding covenaat to settle after-acquired property, this section 
 has much modified the full power of disposition over her property conferred by the other 
 sections of the Act. Be Stonor'a Trusts, 24 Ch. D. 195 ; Hancock v. Hancock, 38 Ch. 
 D. 78. See post, Covenants to settle after-acquired property. 
 
 ^ See post, chap. xiii. 
 
 ^ See Sampayo v. Gould, 12 Sim. 426. The powers of trustees are more fully 
 treated of lower down, Part III., Guardian and Ward, chiip. vi. 
 
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m 
 
 HUSBAND AND WIFE. 
 
 [PAUT 
 
 Married 
 women. 
 
 Lunatics. 
 
 Infants. 
 Settlements 
 by infants 
 voidable. 
 
 Consent of 
 guardians can- 
 not make set- 
 tlements by 
 infants bind- 
 ing. 
 
 Petitioning in- 
 fants under 
 18 & 19 Vict. 
 c-43- 
 
 The Married Women's Property Act, 1882, now provides that 
 married women may hold their property without the intervention 
 of a trustee ; ' but as it is possible that this provision may prove 
 more of a snare than a protection, it is clear that the necessity for 
 the appointment of trustees in the future still exists, if not to 
 protect her interests, yet those of the children. 
 
 WTw can make Marriage Settlements. — In general, all persons are 
 competent to make binding marriage settlements, except lunatics 
 and infants. A woman under coverture was incapacitated in moat 
 instances from making a valid settlement, without the concurrence 
 of her husband, unless she was exercising a power given to her in 
 that behalf, or she was dealing with her separate estate,^ but now 
 her right to make a settlement is a necessary incident of her abso- 
 lute ownership of her property. There does not appear to be any 
 case in which the question of a marriage settlement made by a 
 lunatic has been involved ; but if ever it should come up for dis- 
 cussion, it may be laid down with confidence that the ordinary 
 rules governing the contracts of lunatics will be applied, viz., that 
 if the contract was executed by a lunatic when insane, it would 
 be set aside ; and, on the contrary, would be upheld if executed 
 by him during a lucid interval, or while he was sane, and subse- 
 quently became afflicted with lunacy. 
 
 As in another portion of this work the marriage settlements 
 of infants will be more particularly set forth,' it will here suffice 
 to say that marriage settlements executed by infants are, except 
 under certain circumstances, voidable.'* It was once thought that 
 the consent of guardians could supply and fill up the requisite 
 authority but this is no longer the law.° But a female infant, it 
 appears, may on marriage be bound in certain respects, and in 
 the matter of certain kinds of property ; thus, it has been decided 
 the right of dower may be barred by a proper provision of join- 
 ture made for her before marriage, and she may be barred of 
 her share of her husband's personal estate under the Statute 
 of Distributions, where a provision is made for her by settle- 
 ment. ° 
 
 But infants intending to marry may apply by petition to the 
 Court of Chancery (they are not, however, thereby constituted 
 wards of court) under the Infants' Settlement Act, 1855,' and 
 with the approbation of the court make binding settlements of 
 
 ^ Sect. I, sub-sect. i. 
 
 ^ Post, Part IV., Infancy, chap, iy, 
 
 '' Peach. Sett. 24. 
 „. . ,, , - •* See /Smit/j V. iacas, 18 Ch. D. 531. 
 
 - Field v. Moore, 24 L. J, Cb. 161. 
 
 8 Drury v. Drury, 2 Ed. 39 ; Earl of BucUnghamsliire v. Drury, 2 Ed. 60. 
 remarks of Lord Herschell on this case in Seaton v. Seaton, i % App. Cas. p. 67, 
 7 18 & 19 Vict. c. 4S. ' i iv 
 
 But 
 
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CHAP. viir.J MARRIAGE SETTLEMENTS. 125 
 
 their real and personal estate on marriage. The limitation of the 
 ages of the applicant is for males twenty years, and for females 
 seventeen years. This Act removes the disability of infancy only, 
 but so far as married women are concerned, leaves untouched 
 the disability of coverture. Where an infant ward of court 
 married without leave and afterwards executed a post-nuptial 
 settlement sanctioned by the court, by which she purported to settle 
 certain reversionary property her title to which was under a will 
 becoming operative before Malins' Act' came into force, and so not 
 within its application, though she subsequently recognized the 
 settlement by various acts, it was held that neither the sanction 
 of the court nor the effect of the Infants' Settlement Act could 
 make the settlement of the reversionary interest binding upon her ; 
 and that no acts of acquiescence and confirmation will have that 
 effect unless they amount to an actual disposition by her of the 
 property when discovert.' Notwithstanding the decision of 
 Selborne, L.O., and Fry. L.J. (Cotton, L.J., dissenting) in 
 Sampson v. Wall^ and the case of Re Phillips (An Infant) ,"* doubt 
 has been thrown upon the question whether the Infants' Settle- 
 ment Act applies to a post-nuptial settlement.* The marriage 
 settlement of an infant is not within the Infants' Eelief Act, 
 1874.' 
 
 The operation of a marriage settlement when executed is to Operation of a 
 affect all the property comprised in it or affected by its provisions, aemeuf.* ^^ 
 such as property to be acquired in the future, and agreed between 
 the parties to be settled in a particular manner. All classes of 
 property may be brought into settlement, and regulated by it in 
 various ways, and its directions will be carried out where they do 
 not violate legal principles. The respective rights of husband Rights of hus- 
 and wife as to future property depend upon the terms of the defined, 
 settlement ; the husband did not in the past, nor will in the 
 future, become entitled to his wife's future property because a 
 settlement has been made on her by him, without a stipulation to 
 that effect.' 
 
 The husband was usually deemed liable to pay the costs of the Costs of settle- 
 marriage settlement,' but the court will sometimes order the costs ^^^ ' 
 to be paid out of the funds of the wife where she is a ward of 
 court.' 
 
 ^ 20 & 21 Vict. c. 57. 
 
 ^ Seatoav. »Sra<o»(M5iszip.), affirming S. C. Suclcmasterv. Buclcmaster, ^^Ch.D. 21, 
 
 3 25 Ch. D. 482. * 34 Cli. D. 469, 
 
 ^ Seaton v. Seaton (ubi sup.^. ^ Duncan v. Dixon, 44 Ch. D. 211. 
 
 ^ Garforth v. Bradley, 2 Ves. Sen. 677 ; C'arr v. Taylor, 10 Vee. 574. 
 
 s Helps V. Clayton, 17 C. B. (N. S.) 553. 
 
 8 De Stacpoole v. De Stacpoole, 37 Ch. D. 139. 
 
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126 
 
 HUSBAND AND WIFE. 
 
 [part : 
 
 Settlementa 
 fouQded on' 
 valuable con- 
 sideration. 
 
 Ante-nuptial 
 agreements. 
 Marriage 
 articles. 
 
 Final settle- 
 ments. 
 
 Post-nuptial 
 settlements. 
 
 Marriage 
 articles. 
 
 Form of 
 articles 
 immaterial. 
 
 Section 2. 
 Settlements generally. 
 
 a. Settlements founded on Valuable Consideration. — The con- 
 sideration of marriage is not only what is known as " valuable," 
 but is one of the highest known to the law, and supports 
 contracts and engagements without any further consideration, 
 pecuniary or otherwise. These settlements, founded on valuable 
 consideration, whether that of marriage, or pecuniary, may be 
 thus subdivided : — 
 
 i. Ante-nuptial agreements, including (a) Inchoate or imperfect 
 settlements, that is, marriage articles, or heads of agreement not 
 under seal, in which the trusts are executory ; (b) Complete and 
 final settlements under seal, in which the trusts are executed ; and 
 these may be further subdivided, as being made (a) in pursuance 
 of marriage articles ; or (j3) not in pursuance of marriage articles. 
 
 ii. Post-nuptial settlements, if made in pursuance of marriage 
 articles, or if founded on valuable consideration, pecuniary or 
 otherwise. 
 
 a. Marriage articles are usually drawn up between the con- 
 tracting parties and others interested in the marriage, when for 
 some reason there is a hindrance to the drawing up of a more 
 elaborate and complete settlement. Risks attend this course, 
 and especially in the case of real property, and it were better that 
 a complete and final agreement should be settled before the 
 marriage. In preparing articles of settlement, as little as possible 
 should be left to construction, and the limitations and provisions 
 should be as formally and fully expressed as possible. 
 
 These minutes or articles forming the agreement or promise 
 need not be contained in one document, but may be gathered 
 from several letters, though written to a third person ;' they may 
 also be contained in a bond.' There is no necessity for their 
 being of a formal character, provided that they are complete in 
 themselves.^ The promise must be absolute, and not one which 
 is left to the option of the promisor to carry out or not ;* and a 
 mere expression of a desire or intention to carry out a particular 
 arrangement will not, as a rule, amount in equity to a binding 
 promise or agreement.* But a representation reduced into 
 writing and made by one party for the purpose of influencing the 
 conduct of the other party will in general entitle the party to 
 
 1 Luders v. Anstey, 4 Ves. 501. ^ Acton v. Pierce, 2 Vera. 480. 
 
 ' Lady Thynne v. Earl of Glengall, 2 H. L. Cae. 131. 
 * Randall v. Morgan, 12 Ves. 67. 
 
 ii Maunsdl v. White, 4 E. L. Cas. 1039 ; but see Alt v. Alt, 4 Giff. 84 ; Wdford 
 V. Gray, 12 L. T. 437. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 127 
 
 whicli it has been made to the assistance of the court for the 
 purpose of realizing such representation.' 
 
 h. Comflete, and Final Settlements under Seal. — It is this class Final settie- 
 of settlements that ought, whenever practicable, to be entered ^ai. ^ ""^ ™ 
 into, for security and convenience are obtained thereby ; and less 
 room for doubt and consequent litigation exists. These settle- 
 ments are made either in pursuance of marriage articles, or not 
 in pursuance of them. 
 
 a. In pursuance of Marriage Articles. — The difference between Difference be- 
 marriage articles and a settlement is, that the former contemplate andTfoia^ "^ 
 some further and future settlement ; while a settlement, on the settlement, 
 contrary, is the expression of a past agreement between the 
 parties, though such may be incomplete or defective. The result 
 is that the strict legal construction of the words in articles will 
 not be regarded, but the intention of the parties will have effect 
 given to it as nearly as may be ; but a final settlement, though 
 defective, will not be treated as executory, and wUl not in 
 general, unless there are grounds for reforming it, be varied or 
 altered, but must be construed as at law.^ But where a settle- 
 ment directed to be made by a testator was improperly framed, 
 it was corrected and altered by the intention of the testator, as 
 expressed in his will.^ 
 
 j3. Settlements not in pursuance of Marriage Articles. — Settle- Settlements 
 ments executed before the marriage, and not based upon previous auoe of mar- 
 articles, form the usual arrangements between the intended hus- "''^^ articles. 
 band and wife, and those interested in their union. Where both 
 sides purpose bringing property into settlement, the ordinary Heads of pro- 
 course pursued is for the woman to make proposals for settling STtende'd'Lus- 
 her property ; these are submitted to the man, who either accepts ''»"<i *id ^'f«- 
 them in toto, or suggests alterations. He then carries in his 
 proposals, and if the property settled on both sides is personalty, 
 the settlement is usually contained in one deed. If, on the other 
 hand, realty and personalty are settled, there is frequently a 
 separate deed dealing with each class of property ; so, also, where 
 there exist complicated arrangements affecting the property to be 
 brought into settlement by one side, such property is usually 
 dealt with in a separate deed. 
 
 " Every description of property, real or personal, may form What may 
 
 the subject of a marriage settlement, but a family settlement subject of a 
 
 having for its object to preserve the family property is almost settlement. 
 
 always the settlement of a landed estate. The two distinct 
 
 objects of appropriating a fund to answer the purposes of a family 
 
 1 JIammersley v. De Biel, 12 CI. & Fin. 45. 
 
 " White v. Thornhorough, 2 Vern. 702. 
 
 •" Lord Glenorchy v. BosviUe, Ca. t. Talb. 3 ; i Wh. & T. L. C. r. 
 
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128 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Trusts for 
 conversion. 
 
 Types of 
 settlements. 
 
 Effect of the 
 Conveyancing 
 and Law of 
 Property Act, 
 1881. 
 
 Post-nuptial 
 settlements 
 founded on 
 vahiable con- 
 sideration. 
 
 Post-nuptial 
 settlements 
 based on 
 ante-nuptial 
 articles. 
 
 provision, and of settling an estate so as to preserve it entire, and 
 at the same time charge it with answering the moral obligations 
 of its successive owners, with jointures for their widows and 
 portions for their younger children, gave rise to two types or 
 classes of settlements, commonly distinguished as settlements of 
 personal estate, and settlements of real estate ; not that the 
 subject matter of settlements of the former class is invariably 
 personal estate, or of the latter real estate, for through the 
 artifice of a trust for sale and declaration of the trusts of the 
 proceeds, land is often the subject of a settlement, which for 
 most purposes must be classed with money settlements ; and, on 
 the other hand, personal estate is occasionally, though less fre- 
 quently, settled by means of a trust for the purchase of land, or 
 otherwise, in such a- manner as that the bulk of the property, sub- 
 ject only to deductions to meet charges of the same nature as those 
 ordinarily imposed upon real estate, shall devolve entire upon 
 the successive takers in the way of strict settlement ; or in modes 
 bearing more or less of resemblance to a strict settlement, but of 
 the two classes of settlement what may be looked upon as the 
 type or standard example of the former class is a marriage 
 settlement of stock or of money under some other usual 
 form of investment ; while a strict settlement of real estate, 
 that is, a settlement with at least one life estate followed by 
 successive estates tail, and provisions appropriate to this mode 
 of devolution, constitutes the standard form of the latter class of 
 settlement." ' The framework of modern settlements has been 
 much curtailed by the Conveyancing and Law of Property Act, 
 1881,^ and the Settled Land Act, 1882,' which confers upon 
 trustees various powers which need not be expressed, but which 
 shall be deemed to be inserted in the settlements, unless the 
 contrary intention is expressed.'' 
 
 ii. Post-nuptial settlements are founded on valuable con- 
 sideration, (a) where they are based on ante-nuptial articles ; (fi) 
 or where valuable consideration moves after the marriage has 
 taken place. 
 
 a. Post-nuptial Settlements based on Ante-nuptial Articles. — If the 
 post-nuptial settlement be made in pursuance of articles entered 
 into before the marriage, valuable consideration will be imported, 
 and the settlement will not be voluntary, whether it mentions or 
 
 ' 3 Dav. Prec. Pt. I. p. 3. For the frame of settlements, both personal and real, 
 see the same vol. pp. 6 and 257. 
 
 ^ 44 & 45 Vict. c. 41. ^ 45 & 46 Vict. c. 38. 
 
 '^ For the modern forms under this Act, see Wolstenholme's Forma and Precedents, 
 and Cavanagh on Modern Conveyancing ; Bythewood and Jarman on Conveyancing 
 (4th edit.), vol. vi. ; and Vaizey on Settlements. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 129 
 
 omits any reference to the articles. The ante- nuptial agreement Ante-nuptial 
 must not merely be parol, but in writing,' unless there has been mustTern 
 an actual transfer to trustees of the property so agreed to be ^"itiig- 
 transferred, and held by them on the trusts declared j ^ for agree- 
 ments in consideration of marriage are within the fourth section 
 of the Statute of Frauds. The articles are founded upon the 
 valuable consideration of marriage, and so carry it on to the post- 
 nuptial and otherwise voluntary arrangement. Thus it follows 
 that a post-nuptial settlement, based upon marriage articles, must 
 conform strictly to them, for wherever it does not do so, it will 
 be purely voluntary.^ A mere recital in the post-nuptial deed of 
 ante-nuptial articles is insufficient evidence of their existence, and 
 the deed will not be supported against a subsequent purchaser for 
 value.* An agreement for a marriage settlement, or marriage 
 articles, though informal, are within the exception of sect. 4 of 
 the Bills of Sale Act, 1878,* and do not require registration as a 
 bill of sale.' 
 
 j3. Post-nuptial settlements where valuable consideration moves Post-nuptiai 
 after marriage. — Post-nuptial agreements not made in pursuance ^^rrcon- 
 
 of ante-nuptial articles, but for valuable consideration, are also sideration 
 , . T T T mi • T • • 1 (• moves after 
 
 binding and good. The consideration may move either from marriage. 
 
 third parties, or from the husband, or the wife. If the father of Oonsideration 
 
 5 . ... moving from 
 
 the wife, or any third person, in consideration of the husband strangers. 
 making a settlement, advance a sum of money, such a settlement 
 will be good, and for valuable consideration,' and in such a case 
 the post-nuptial settlement will be binding upon the third 
 person.* A post-nuptial settlement has been held good against 
 creditors, by a third person agreeing to advance money to pay 
 the debts of the husband on condition of his settling his property 
 for the benefit of his family, though the latter concealed that he 
 owed a particular debt, which was not satisfied in accordance with 
 the agreement." 
 
 The consideration may also move from either husband or wife. Consideration 
 A settlement was held good where a vested reversion was settled husband or 
 by the husband and wife on the wife for her separate use, the ^' ®" 
 husband surrendering his right to receive the rents and profits 
 during coverture ; '° also, where the wife relinquished a valuable 
 
 ' Warden v. Jones, 26 L. J. Ch. 427, overruling Dundaa v. Dutens, l Ves. 196. 
 ^ Cooper V. Wormald, 7 W. R. 402. 
 ' Legg v. Goldwire, Ca. t. Talb. 20. 
 
 * CordweU v. Mackrill, 2 Ed. 344. 
 ^ 41 & 42 Yiot. c. 31. 
 
 ^ Wenman v. Lyon & Coy. [1891], 2 Q. B. 192. 
 
 ' Wheeler v. Caryl, Amb. 121 ; Hance v. Harding, 20 Q. B. D. 732. 
 
 * Tmonsend v. Toher, L. R. i Ch. App. 446. 
 
 9 Holmes v. Penney, 26 L. J. Ch. 179. See also Pott v. Todlmnter, 2 Coll. 76. 
 ^o Hewison v. Negus, 22 L. J. Ch. 655. 
 
 I 
 
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130 HUSBAND AND WIFE. [part i, 
 
 interest, that is, her jointure, in consideration of a provision made 
 
 by the husband.' A post-nuptial settlement by one who was an 
 
 infant at the time of his marriage, in pursuance of a promise to 
 
 settle his estate when he became of age, was held good on proof 
 
 of the settlement having been made in pursuance of the promise.' 
 
 Very slight consideration will support a post-nuptial settlement.' 
 
 A covenant in a post-nuptial settlement by a husband to settle on 
 
 the wife after-acquired property, in order to avoid proceedings 
 
 being taken against him for contempt of court in marrying his 
 
 wife, who was a ward of court, without leave is enforceable.* 
 
 Under M.W. Under the Married Women's Property Act, 1882, the considera- 
 
 fo'nrideratfon ^^°^ moviug from husband or wife must be of a valuable nature, 
 
 moving from for mere relinquishment of rights or interests will no longer have 
 
 husband or ^ ■ i i , n ? , 
 
 wife must be any eiScacy ; for neither spouse has any real and eniorceable 
 vaua 6. right or interest in each other's property, but a spes siwcessionis, 
 or a mere expectation of an interest on survivorship, in the event 
 of the deceased not having disposed of his or her property." 
 Voluntary (&) Voluntary settlements. — Voluntary settlements are those 
 
 which are made after marriage, and not in pursuance of ante- 
 nuptial articles, nor as founded on valuable consideration. A 
 Post-nuptial post-nuptial settlement, that is, one executed after marriage, is 
 settlements, ^q^ ^ marriage settlement in the proper sense of the term, thongh 
 expressed to be in consideration of the marriage, but is merely 
 Toiuntary, voluntary, unless it rest upon some fresh consideration." Where 
 on fresh con- aute-nuptial articles on which to base the subsequent settlement 
 sideration; ^^^ wanting, it is the absence of the valuable consideration of 
 marriage (for ex vi termini it has already taken place) which 
 renders these settlements voluntary. A voluntary settlement is 
 but not against not altogether void, for it binds the settlor and all volunteers 
 volunteers. (that is, those whose interest is not founded on valuable con- 
 sideration) claiming under or through him. A voluntary settle- 
 ment of real estate is void as against purchasers for value, even 
 though they had notice of the voluntary settlement.' The settlor 
 himself will not be assisted by the court to defeat hia settlement 
 as against an unwilling purchaser ; " but he will be compelled to 
 convey where the purchaser is willing to complete the bargain.' 
 So, too, a voluntary settlement of personal property is void aa 
 against creditors, where it has been executed iu fraud of them," or 
 
 ^ Cottle V. Tripp, 2 Vera. 220. 
 
 ^ Lavender v. Blachstone, 2 Lev. 146. 
 
 •' See Scott v. Bell, 2 Lev. 70. 
 
 * Stephens v. Green [1895], 2 Ch. 148. 
 
 '■■ See Shurmur v. Sedgwick, 24 Ch. D. 597. ^ Wats. Comp. Eq. 550. 
 
 ' 27Eliz. u. 4. Pidvertoftv.Pulvertoft, 18 Vea. 84; Suckle v. Mitchell, iSVes.ioo. 
 
 s Smith V. Garland, 2 Mer. 123. 
 
 " Peters v. Nicolls, L. R. 11 Kq. 391. " 13 Ellz. 0. 5. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 131 
 
 is void under the bankruptcy laws.' But this subject will be more 
 fully treated of in subsequent pages.^ 
 
 Where a husband or a wife makes a post-nuptial settlement 
 •on the other, without any consideration moving from that other, 
 though without any intent to defeat or defraud creditors, it will 
 be held to be voluntary and void as against the latter ; but as 
 between themselves, the settlor could not allege as against the 
 other that it was voluntary only, and not binding, on the ground 
 of the absence of consideration.' 
 
 A voluntary settlement may become valid by subsequent deal- How 
 ing ; thus, if a father make a voluntary settlement upon a child, Settlement 
 who afterwards marries, the circumstance of the settlement lead- may become 
 
 valid. 
 
 ing to the marriage makes the settlement good, though it would 
 have been bad as against creditors and subsequent purchasers, if 
 no marriage had taken place.* 
 
 The husband's interest uTider the settlement. — It has been thought Husband's 
 worth while to treat shortly at this point the special subject of the settlement. 
 the interest of the husband under the settlement, for without a 
 settlement he now takes no interest in his wife's property, at any 
 rate during her life. When real estate of the husband is settled, Realty, 
 he almost, as a matter of course, takes a life-interest in it, without 
 impeachment of waste ; and usually after intermediate limitations, 
 sometimes to the wife for life, and the issue of the marriage, and 
 sometimes to the issue only, he takes the ultimate remainder in 
 default of issue. Frequently, also, he takes a life-interest in his 
 wife's real estate, subject to her prior life-interest. With refer- 
 ence to personal property, or real estate directed to be converted Personalty. 
 and the proceeds invested, he usually takes the first life-interest 
 in his own property, and a life-interest subject to her prior life- 
 interest in her property. Not unfi-equently there is a clause of 
 forfeiture in the event of his becoming bankrupt, or assigning, 
 charging, or encumbering his life-interest. Without such a clause 
 the husband's life-interest, or any other interest which he may 
 take under the settlement, wUl vest in his trustee in bankruptcy ; ' 
 but the validity of such a clause depends upon its surrounding 
 circumstances.' 
 
 An ante-nuptial settlement may operate to entitle the husband increased 
 
 i I- 1 ■ •!■ 1 • I IT .1 11 1 rights of the 
 
 as purchaser to property of his wife which would not legally have husband under 
 
 the settlement. 
 
 1 46 & 47 Vict. 0. 52, B. 47. 
 
 ^ See post. Revocation and Setting Aside of Settlements, p. 152. 
 "* See Shurmur v. Sedgxoick, 24 Ch. D. 597. 
 
 ■* Brmvn v. Carter, 5 Ves. 862 ; see Moddy v. WiUiams, 3 Jo. & Lat, 18. 
 ^ 46 & 47 Vict. c. 52. 
 
 " Wats. Comp. Eq. 577. For a further consideration of this subject, see next 
 section, p. 132, aud Revocation and Setting Aside of Settlements, post, p. 152. 
 
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132 HUSBAND AND WIFE. [part i. 
 
 fallen under his marital right.' Where there is a gift to the wif& 
 for the purposes of the settlement, and the trusts of the settlement 
 fail, the husband takes no interest in the gift, but there is a 
 resulting trust for the benefit of the settlor.' 
 
 Section 3. 
 Covenants in Settlements. 
 
 Covenants in The subject matter of this section will be treated of as follows: 
 
 settlements. ^ Covenants or promises by third persons ; b. Covenants by the 
 husband ; e. Covenants by the wife ; d. Covenants to settle after- 
 acquired property. 
 
 Covenants by a. Covenants or promises by third persons or strangers, based 
 
 t 11- persons. ^^^^ ^j^g Consideration of marriage, are valid and can be enforced; 
 
 tionofmar- the most common instance of covenants of this nature are those 
 by parents, or persons in loco parentis, who covenant to make a 
 settlement on the marriage of their children.' If the promise or 
 covenant is made after marriage, it is, of course, voluntary, the 
 marriage consideration being wanting; but if made before the 
 marriage, which takes place on the faith of it, that which was 
 otherwise merely voluntary is converted into a promise based on 
 valuable consideration.'' "Where the covenantor, whether parent, 
 or person in loco parentis, does that which amounts to a substantial 
 compliance with his covenant, the court will deem him to have 
 satisfied it ; * but where there are substantial differences between 
 the provisions made by the settlement and those subsequently 
 made by the covenantor, the presumption is against his having 
 
 Election. satisfied his liability on the covenant.^ In such a case the parties 
 interested are often put to their election as to whether they will 
 abide by the covenant in the settlement, or by the provision in 
 the later instrument.^ 
 
 Covenants by h. The husband may covenant to settle on his wife all or any 
 
 husband. ri- ,,.. ,. 
 
 pai t 01 his property, whether it exist at the time 01 the marriage, 
 or is to come into existence afterwards, or whether he be entitled 
 in his own right, or in that of his wife ; and if the covenant has 
 not been satisfied during his lifetime, the persons entitled under 
 it may proceed against his estate for its due performance.' 
 
 ■■ Lanoy v. Duchess of Atliol, 2 Atk. 444. 
 ^ He Nash's Settlement, 51 L. J. Ch, 511. 
 => Jones V. ITow, 7 Ha. 267 ; see Jie Brodkman's Trust, L. E. 5 Ch. App. 182. 
 
 * I Bish. Mar. Wom. s. 788. 
 
 ■' Lord Chicliester v. Covev.try, L. E. 2 H. L. 71 ; 3Iayd v. Field, S Cb. D. 587. 
 ^ Be Tussaud's Estate, Tussaud v. Tussaud, 9 Ch. D. 363. 
 ' Hussell V. St. Auhyn, 2 Oh. D. 398. 
 
 * See Smith v. Smith, i Y. & C. Ex. 338. 
 
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CHAP. viiT.J MARRIAGE SETTLEMENTS. 133 
 
 c. A wife will, under the present state o£ the law, be now able Covenants by 
 to enter into like binding covenants for the settlement of her ^'*®' 
 property on her husband, both that which she possesses at the date 
 
 of the marriage, and that which devolves upon her during cover- 
 ture, except such as she may be restrained from anticipating, and 
 if she fail to satisfy her covenant during her life, her estate may 
 be proceeded against for the purpose of enforcing it.^ 
 
 d. Covenants to settle after -acg^uired property. — Marriage settle- OoveDants to 
 ments frequently contain an agreement and declaration, operating afterVcquired 
 as a covenant on the part of the husband, to settle all the after- property. 
 acquired property of the wife. Most of the cases which have 
 
 been decided upon covenants of this description have arisen in the 
 «ndeavour to adapt the covenant to the presumed intention of the 
 parties. The great difficulty experienced is to determine the con- 
 struction to be placed upon the language used, the court having 
 no authority to extend the language of the settlement beyond the 
 fair construction of the words. In every case, therefore, the 
 question can be simply one of intention, which intention is to be 
 collected from the terms of the instrument.^ The object of this object of the 
 agreement was to curtail the interest of the husband, and protect ''°'""'*° ■ 
 the wife, whose property coming to the husband jitre mariti was 
 sought to be removed out of his control by impressing upon it 
 the trusts of the settlement;^ and its operation has been on the 
 whole more beneficial than the reverse. This agreement and who bound by 
 declaration operating as a covenant was wont to be made by the ® <=o^«'^*° • 
 husband alone, or by the husband and wife. If by the husband Covenant by 
 alone the wife was not bound by it," and it did not attach to her ^oes not bind 
 separate personal property, for her husband took no interest in it,* ^ll^i^ separata 
 nor to her real estate, for his interest in it was only a limited 
 one," nor to reversionary interests not reduced into possession 
 during the coverture.' Thus, where in a settlement on the 
 marriage of a female infant the husband covenanted with the 
 trustees, that if his wife, or himself in the right of his wife, 
 became entitled to real or personal property above a certain 
 amount, to do everything to effect the vesting of the property in 
 the trustees of the settlement, and property above the agreed 
 amount was settled on the wife by her mother to her separate 
 use, it was held by the Court of Appeal (reversing Fry, J.) that 
 
 ^ See Be Parkin, HiU v. Hclvwarz [1892], 3 Ch. 510. 
 ■' Peach. Sett. p. 523. 
 3 See Re Edwards, L. E. 9 Ch. 97. 
 '' Young v. Smith, L. R. i Eq. 180. 
 
 5 Eamsden v. Smith, 2 Dr. 298 ; Simeon v. Jones, 2 R. & M. 365, 376 ; Be Mac- 
 jpkerson, Macpherson v. Macphe/rson, 55 L. J. Ch. 922. 
 * Simson v. Jones {ubi sup.}. 
 ' Beid V. Kenrich, 24 L. J. Ch. 503. 
 
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134 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Joint covenant 
 by husband 
 and wife — wife 
 bound. 
 
 Covenant by 
 Tvife during 
 minority void- 
 able. 
 
 Operation of 
 covenant may 
 be limited, 
 either by ex- 
 press terms, or 
 by implication. 
 
 the wife was not bound to bring the property into settlement^ as it 
 was the husband's covenant alone.' Where the husband and wife 
 jointly agreed, or did that which amounted to a joint agreement, 
 whether openly on the face of the document, or by implication 
 from its words, then the wife was bound,- even as to her separate 
 property,^ unless specifically excluded ; ^ she was likewise bound 
 where she assented to the covenant.^ But where the settlement 
 was post-nuptial, and there did not exist any ante-nuptial agree- 
 ment binding on the wife, she was not bound by her husband's 
 covenant to settle.* The effect of this joint covenant by husband 
 and wife operated to sever the wife's joint interest in personal 
 estate to which she became entitled by a subsequent instrument.'^ 
 
 An ante-nuptial agreement by husband and wife for the settle- 
 ment by husband and wife of the latter's after- acquired property 
 is a covenant by the wife as well as by the husband, whether she 
 be a minor or of full age. If the wife be a minor, and the cove- 
 nant be for her benefit (being voidable only and not void), it is 
 binding upon all property coming to her during the coverture for 
 her separate use, without a restraint upon anticipation, until slie 
 avoid and disafBrm the covenant as to such property. If being^ 
 such a minor a sum of money is settled on her, the income of 
 which she is restrained from anticipating, and by the same instru- 
 ment she covenants to bring after-acquired property into the 
 settlement, she cannot be compelled to elect whether she shall 
 give up the income of the settled fund, or bring the after-acquired 
 property into the settlement, but she is entitled to keep both.* 
 To make such a covenant absolutely binding upoil a female infant, 
 the consent of the Court of Chancery, if she be over seventeen 
 years of age, must be first obtained to the settlement under the 
 Infants' Settlement Act, 1855.' 
 
 The wife's covenant to settle after-acquired property may be 
 limited in its operation, either by direct words, or from an impli- 
 cation to be inferred from the general tenour and effect of the in- 
 
 ^ Dawes v. Tredwell, 18 Ch. D. 354. 
 
 ^ Butcher v. Butcher, 14 Beav. 222 ; Hammond v. Hammond, ig Beav. 29 ; Re 
 V Estampes' Settlement, 53 L. J. Ch. 117. 
 
 s Milford v. Peile, 2 W. R. i8l. 
 
 '' Coventry v. Coventry, 32 Beav. 612 ; Kane v. Kane, 16 Ch. D. 207 ; ife Kerens' 
 Settlement Trusts, Berens v. Benyon, 59 L. T. 626. 
 
 ^ Lee V. Lee, 4 Ch. D. 175. 
 
 ^ But see Anderson v. Abhott, 23 Beav. 4[;7. 
 
 '' Be Hewett, Hewett v. Hallett [1894], i Ch. 362. 
 
 8 Be Vardon's Trusts, 31 Ch. D. 275. This decision overrules Be Queade's Trmfs, 
 54 L. J. Ch. 786, and Willoughby v. Middleton, 2 J. & H. 344, on this point. See 
 Codrincjton -v. Lindsay, 8 Ch. App. 578 ; Smith v. Lucas, iS Ch. D. 531, and CaMl v. 
 Cahill, 8 App. Cas. 420, 427. 
 
 ^ The consent of the Court to a post-nuptial settlement by an infant married Toman 
 has been given under this Act. See Sampson v. IVall, 25 Ch. D. 4S2. 
 
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CHAP, vm.] MARRIAGE SETTLEMENTS. 135 
 
 strument in which she covenants.' A woman on marriage may 
 covenant to bring into settlement all property which shall come 
 to her other than that settled to her separate use ; and if property 
 settled to her separate use does come to her during coverture, 
 the property will not be bound by her covenant ; ^ or she may 
 covenant in one part of the instrument in wide and broad terms 
 to settle her after-acquired property, but in another part use 
 expressions from which it may be inferred that the operation of 
 her covenant is to be limited in its effect to property of a par- 
 ticular nature and description.^ 
 
 It is now a rule of construction that where the after- acquired 
 property is found not to fit the trusts of the settlement, it may 
 be assumed as a consequence that such property was not intended 
 to come within the covenant to settle.* Where a covenant has 
 been entered into for the settlement of the future property of a 
 married woman, and a gift is afterwards made to her of such a 
 nature as to come within the terms of the covenant, no expression 
 of the intention of the donor that it shall not be settled will ex- 
 clude it from the operation of the covenant.* The only case in 
 which the wife's covenant would not operate would be in that of Wife's cove- 
 a gift which she was restrained from alienating, and would forfeit prevail, except 
 if she did aliene ; and her assignment to the trustees of her ^e'TforfeTture 
 settlement would amount to such alienation, and so create a of the gift. 
 forfeiture.^ 
 
 The Married Women's Property Act, 1882, has much modified Effect of M. 
 the law on this subject, and the covenant by the husband, which jgg^ " " ' 
 was framed for the protection of the wife's property and to ex- 
 clude the marital right, has, since the Act came into force, 
 become not only unnecessary, but actually nugatory. The cove- 
 nant by the wife will be retained only in cases where it is 
 desired to restrain her from in any way anticipating or alien- 
 ating her property, except by way of assignment to her trustees. 
 So far as her husband is concerned, a married woman ife mistress 
 of any property which may come to her during coverture ; and 
 unless she has entered into a covenant to settle property coming 
 to her during marriage, she can dispose of it as she please, unless 
 
 ^ See Be StepJienson, 3 De G. M. & G. 969. 
 
 2 See Brooks Y. Keith, 1 Dr. & Sm. 462 ; Coventry v. Coventry; 9 Jur. N. S. 313. 
 
 ^ Be Mainwaring'a Settlement, L. E. 2 Eq. 487. 
 
 ^ So far as the above canon is the basis of the decision of Be Mainwaring's Settle- 
 ment, that case may be taken to be good law ; but if the language of the learned judge 
 ■who decided it goes to the extent that the intention of a subsequent donor of properly 
 to a married woman can operate upon it contrary to the trusts of the settlement, then 
 it cannot be supported. Be Allnutt, Pott v. Brassey, 22 Ch. D. 275 ; Scholfield v. 
 SpooTier, 26 Ch. D. 94. , . . 
 
 5 Be Allnutt, Pott v. Brassnj {uhi sup.) ; Scholfield v. Spooner {ubi sv2^.) 
 
 ^ See Brooks v. Keith {ubi sup.). 
 
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136 HUSBAND AND WIPE. [parti. 
 
 restrained by the terms of the instrument through which she 
 Husbandought acquires it. The husband, therefore, in future settlements, 
 fnto*j'otat^ove- should not enter into any covenant in the matter, for he has no 
 nant. jjjQpg power over his wife's property than she has over his. The 
 
 practical effect of this covenant is to withdraw the wife's property 
 from the control of her future creditors. As a married woman 
 is mistress of her property when unrestrained, the morality of 
 this provision is questionable. If the wife intends to bring into 
 settlement property to which she may become subsequently en- 
 titled, she alone must covenant with the trustees or other parties 
 to that effect.' 
 
 Where a woman married before this Act came into force has 
 covenanted to bring into settlement after-acquired property not 
 limited to her separate use, acquires by deed or will after the 
 commencement of the Act any such property which, by^ the terms 
 of the instrument of donation is not limited to her separate use, 
 she is bound by her covenant to bring it into settlement on the 
 ground that though the 5 th section of the Act attaches to such 
 property the statutory separate use, yet s. 19 limits the opera- 
 tion of s. 5 , by preventing the provisions of marriage settlements 
 being interfered with or affected by withdrawing that which, 
 independently of the Act, must have been brought into settlement.' 
 But where a woman has so covenanted, but the after-acquired 
 property coming to her is limited to her separate use withmt 
 power of anticipation, in such case the property so limited is not 
 bound by her covenant.' And so, where a woman married before 
 January 1st, 1883, had a fund settled upon her with an absolute 
 reversion in the property so settled, with a power to appoint the 
 same by will, or, when discovert, by deed, and she became dis- 
 covert, but did not exercise the power, but married again since 
 January 1st, 1883, ^^^ without a settlement, she was held en- 
 
 lu a recent case, however, Chitty, J., has decided adversely to the proposition laid 
 down in the text, for he has held that a covenant by a husband to settle property 
 belonging to the wife, who was an infant at the time of the marriage, which took place 
 since the Married Women's Property Act, 1 882, came into force, and not under the Infant 
 Settlements Act, 1853, bound the wile, notwithstanding her infancy and repudiation of 
 the settlement after she became of age, on the ground that sect. 19 of 45 & 46 Vict. c. 75 
 applied to seot.z as well as to sect. 5. Stevens v. Trevor -Garrick [1893], 2 Ch. 307. 
 With all submission, this decision does not seem well founded, for though sect 19 
 is not to affect or interfere with settlements "to be made" (assuming it applies to 
 i'uture settlements), yet such must be made in accordance with the recognized principles 
 of the law, one of which is that the husband has no interest in his wife's property; and 
 a, person who has no interest in another person's property cannot efEeotually bind ov 
 dispose of it. The fact of the wife's inlancy at the time of the marriage would seem to 
 throw still greater doubt on the accuracy of the decision (see Dawes v. Tredwell, 18 
 Ch. D. 354). See post, Part IV. chap. iv. 
 
 ^ Me Stonor's Trusts, 24 Ch. D. 195 ; Re Whitaher, Christian v. Whitalcer, 
 34 Ch. D. 227 ; Bancock v. Hancock, 38 Ch. D. 78, disapproving oiBe Queade's Tnnts, 
 
 ^ Be Currey, Gibson v. Way, 32 Ch. D. 361. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 137 
 
 titled to have the fund transferred to her without a release, 
 because, as s. 2 of the Act had added the incident of separate use, 
 a. 19 did not exclude its general operation.' This covenant lasts 
 only " during coverture," so that any property coming to a 
 woman when discovert is not affected by it ; thus, the effect of a 
 decree of judicial separation is to render inoperative a covenant 
 by a woman to settle after-acquired property ; and she takes all 
 property coming to her while the decree is in force as a/«??ie sole;^ 
 but, on the other hand, to prevent the jv^ maritale attaching to 
 the wife's property, it has been held that a surviving husband 
 is bound by his covenant to bring into settlement his wife's 
 reversionary property that did not fall into possession during her 
 lifetime.^ 
 
 The property capable of being settled in this manner is pro- What property 
 perty coming to a married woman, if it be an absolute interest, ™*^ 
 and not merely for life,^ which vests in, devolves upon, or 
 belongs to her ; or over which she can exercise a general power 
 of appointment if so covenanted by her.* The duration of these 
 covenants, in the absence of expressions to the contrary, is 
 " during coverture ; " and where that expression has been omitted, 
 the duration has been restricted to that period ;" and this was so 
 where the property was derived from a specified source.' The 
 ordinary clause is now drawn to include every interest of the 
 wife existing at the time of the marriage, or acquired during the 
 coverture, whether in possession or in reversion, and whether 
 vested or contingent ; a reversionary interest in a legacy in 
 default of appointment which vested in the wife during the 
 coverture, though liable to be divested by the exercise of a 
 power of appointment was held to be property within such a 
 covenant.' If the clause is confined to property in existence at 
 the date of the settlement, a new interest acquired by the wife 
 subsequently to that date will not be bound by the covenant.' 
 A clause so drafted obviates any speculation which used to 
 
 ^ Be Onslow, Plowden v. Gayford, 39 Ch. D. 622. 
 
 2 Dawes v. Creyke, 30 Ch. D. 500. 
 
 •* Fisher v. Shirley, 43 Ch. D. 290. 
 
 '' Tomnshend v. Marrowhy, 4 Jur. N. S. 353. 
 
 ^ This is a special covenant inserted in more modern settlements to obviate the 
 effect of the decision in Bower v. Smith, L. R. 11 Eq. 279. ;^20O is as a rule the 
 smallest amount of personalty so settled, but ;^5oo is the usual limit ; see Be Mac- 
 kenzie's Settlement, L. K. 2 Ch. App. 345, for the mode of ascertaining the value of 
 
 « Be Edwards, L. R. 9 Ch. App. 97 ; S. C. 43 L. J. Ch. 265 ; Be Coghlan, 
 Broughton v. Broughton [1894], 3 Ch. 76. An assi^ment on marriage of after- 
 acquired property is now governed by the rules laid down in Be Edwards; see Holloway 
 V. HoUoway, 25 W. E. 575. 
 
 !■ Be OampbeU, 6 Ch. D. 686. 
 
 ^ Be Ware, Cumberledge v. Oamherledge- Ware, 45 Ch. D. 269. 
 
 ' See Sweetapple v. Horlock, 1 1 Ch. D. 745. 
 
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138 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 The doctrine 
 that the wife's 
 property at 
 date of 
 marriage is 
 affected by the 
 covenant, 
 
 cannot now 
 be considered 
 the law. 
 
 As to rever- 
 sionary or 
 contingent 
 interests. 
 
 Contingent or 
 reversionary 
 
 attach to the words of futurity " should become entitled," and 
 kindred expressions. As already stated, this subject has lost 
 much of its importance, but as it is possible that some clauses 
 may not have been so drafted as to avoid doubts, it may not b& 
 without some advantage to note shortly how unsettled the 
 opinions of the judges have been on this subject, and to what 
 conclusion the balance of opinion tends. 
 
 In Chafftey v. Eunvpage,^ James v. Dnrant," Re Hughes' Trusts^ 
 and the latter case of Be Viant's Trusts,'^ it was held that the 
 words of futurity were satisfied by the circumstance that the 
 husband's marital right accrued upon the marriage, so as to 
 bring property belonging to the wife at the date of the settlement 
 within the operation of the covenant. But this doctrine has 
 been expressly disapproved in Archer v. Kelly, ^ Be Broime's 
 WiU° Be Pedder's Trusts,^ and Be Jones' Will,^ which virtually 
 overrules Be Viant's Trusts, which case can no longer be considered 
 law ; and property belonging to the wife at the date of the mar- 
 riage, and not affected by the terms of the covenant, will not be 
 brought into settlement, even though she was ignorant of its 
 existence at the time of entering into the contract.' It is almost 
 needless to observe that now this point cannot be debated where 
 the husband dies in the lifetime of the wife and before the fund 
 falls into possession, or where the wife dies before it falls into 
 possession.'" It appears that income not originally included in the 
 covenant may be so invested as to indicate a permanent intention 
 on the part of the settlor to turn it into capital, in which case it 
 will become subject to the covenant, if its terms are capable of 
 including it." 
 
 The foregoing remarks deal with property already in possession; 
 now with reference to reversionary or contingent interests, it 
 may (with caution where so much must in each individual case 
 depend on the terms of the instrument) be inferred that if falling 
 into possession during the coverture they will be considered as 
 after-acquired property within the meaning of a covenant for the 
 settlement of such property ; but that they would not be affected 
 by the covenant where they did not accrue during the coverture, 
 whether the wife were or were not a party to it.'^ 
 
 A contingent or reversionary interest of the wife, existing at 
 
 1 I Beav. &c.,46. ^ 2 Beav. 177. ^ ^ (j;g_ ^32. 
 
 " L. R. 18 Eq. 436. i* I Dr. & S. 300. i^ L. E. 7 Eq. 231. 
 
 ' L. E. 10 Eq. 585. 8 2 Ch. D. 362. 
 
 ^ Be Qarnett, Bobinson v. Gandy, 33 Ch. D. 300 ; and see WiUiams v. Mercier, 
 10 App. Gas. I. 
 
 " Be Mitchell, 9 Ch. D. Jo, overruling 6 Ch. D. 618. 
 
 ^1 Be Bendy, Wallis v. Bendy [1895], i Ch. 109. 
 
 '- Dav. Preo. vol. iii. Pt. I. p. 21 1 ; Be Welsiead Welstead v. Leeds, 47 L. T. 331. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 139 
 
 the date of the marriage, and which falls into possession during interestfaiiing 
 coverture, would fall within the operation of a covenant to settle during cover"" 
 all property of whatsoever kind to which she became entitled ^^'^^ affected 
 
 . T . t by covenant ; 
 
 during the coverture, unless there were words in the covenant to 
 cut down the effect of the covenant, and so exclude its full opera- even where 
 tion ;^ and such a reversionary interest vested in the wife at the divested. " 
 date of marriage is within the covenant, though it is liable to be 
 divested by the exercise of a power of appointment.^ 
 
 To sum up, the property (whether in possession or reversion) Summary. 
 included in the operation of the covenant as ordinarily drawn, 
 will be such as is comprised in its terms, and acquired by the 
 wife during coverture, while that will be excluded which, though 
 possibly, and even quite within its terms, yet is not so acquired 
 while the coverture lasts. 
 
 Not only are such covenants as these entered into with respect Husband's 
 to the wife's property, but sometimes there is an agreement or geitle his after- 
 covenant by the husband to settle his own after-acquired property, aoq^redpro- 
 A general assignment of property is rightly regarded with sus- 
 picion ; but the marriage consideration is so strong, that a 
 covenant of this nature made by an insolvent, but without the 
 appearance of fraud, was upheld against his assignees in bank- 
 ruptcy.^ But there are circumstances under which the assign- 
 ment by the husband would not operate as a valid conveyance to 
 defeat the claims of his creditors;" and the Bankruptcy Act of 46* 47 Vict. 
 
 C. 1^2 S. 47. 
 
 1883 provides for this contingency. Section 47 (2) enacts that 
 
 " any covenant or contract made in consideration of marriage, for 
 
 the future settlement on or for the settlor's wife or children of 
 
 any money or property wherein he had not at the date of his 
 
 marriage any estate or interest, whether vested or contingent, in 
 
 possession or remainder, and not being money or property of or 
 
 in right of his wife, shall, on his becoming bankrupt before 
 
 the property or money has been actually transferred or paid 
 
 pursuant to the contract or covenant, be void against the 
 
 trustee in the bankruptcy. ' Settlement ' shall, for the purposes 
 
 of this section, include any conveyance or transfer of property." 
 
 The question may be raised whether, if a husband who has Discharge of 
 
 entered into a covenant to settle his after-acquired property ^and discharge 
 
 becomes bankrupt and obtains his discharge, he is free from his "^^ct Mscove- 
 
 liability on the covenant. His liability will, in all probability, be nant, qucere. 
 
 deemed to continue ; for though in the case of other creditors it 
 
 1 Me Machenzie's Settlement Trusts, L. E. 2 Cb. App. 345. 
 
 2 Ee Jackson's Will, 13 Ch. D. 189 ; Sweetapple v. Eorlocl, 11 Ch, D. 745, cor- 
 rected by Be Jackson's Will {ubi sup. ). 
 
 3 Hardey v. Oreen, 12 Beav. 182. 
 
 ^ Sieepost, Eevocation and Setting Aside of Settlements, p. 152. 
 
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140 HUSBAND AND WIFE. [part i. 
 
 would be a provable matter, and so barred by the discharge, yet 
 matrimonial relations are different from ordinary business transac- 
 tions, and the interests of others, the children, would be taken 
 into consideration.' 
 Divesting of The property which comes to the husband,^ whether in pos- 
 fag to'husCd session or reversion, and whether settled on him by the wife, or 
 on bankruptcy derived from other adventitious sources, may be so settled on him 
 must be abso- as to digest on his bankruptcy or insolvency, but the settlement 
 '"'®" must be so framed as to make the divesting absolute for a limited 
 
 estate.^ Though to an absolute gift of property to a man or a/«m« 
 sole it is not possible to attach a clause of forfeiture and a gift over 
 if the donee alienates or assigns the property, as such would he 
 inconsistent with the terms of the gift, yet where the gift is for a 
 limited estate then such divesting clause becomes operative. A 
 man may settle property upon himself for life with a clause 
 forfeiting his interest in the event of alienation or attempted 
 alienation, provided such alienation affects only a particular 
 alienee ; thus, where real estate was settled upon trust to pay 
 the rents to the settlor for life, or until he should incumber it, 
 or become bankrupt, and then to pay an annuity to his wife, and 
 he first mortgaged the property, and then became bankrupt, the 
 limitation was upheld, as the forfeiture arose upon the mortgage ;* 
 and where the settlor settled his own property on trust to pay 
 the income to himself during his life or till he should become 
 bankrupt or suffer something whereby the same .... would, 
 through his act, default, or by operation or process of law, if 
 belonging absolutely to him become vested in or payable to some 
 other person or persons, the limitation over was upheld in an 
 involuntary alienation of the husband's income in favour of a 
 judgment creditor, who had obtained an order appointing a 
 receiver of such income.'* But a man cannot settle his property 
 in such a way as to divest on his bankruptcy as such would be a 
 fraud on the bankruptcy law ;" and where a husband covenanted 
 in his settlement to pay a sum of money in the event only of his 
 failing in his circumstances, his trustees were not allowed to 
 prove as creditors in his bankruptcy.' 
 
 ^ See CoUyer v. Isaacs, 19 Ch. D. 342, 352. 
 
 2 Sharpe v. Cosserat, 3 W. K. 473. 
 
 ^ See Lockyer v. Savage, 2 Str. 947; Whitmore v. Mason, 2 J. & H. 214! 
 Montefiore v. Behrens, L. K. 1 Eq. 171 (post-nuptial settlement); Re Akermid's 
 Settlement, Roberts v. Alceroyd [1893], 3 Ch. 363 ; Mackintosh v. Pogose [1895], 
 I Ch. 505. 
 
 ■• Brooke v. Pearson, 27 Beav. 181 ; see also Knight v. Browne, 30 L. J. Ch. 649. 
 
 '^ Me Detmold, Detmold v. jDetmold, 40 Ch. D. 585. 
 
 " Eiginhotham v. Holme, 19 Ves. 88 ; Ex parte Hodgson, 19 Ves. 206 ; Lester f- 
 Garland, 5 Sim. 205. 
 
 ' Ex parte Murphy, i Sch. & Lef. 44. 
 
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CHAP, viii.] MARRIAGE SETTLEMENTS. 141 
 
 la like manner, a married woman is not permitted by bringing Same rules, 
 property, or by covenanting to bring it, into settlement with a ap^jeaWe to 
 restraint on anticipation (which would have the same effect as married 
 the divesting of the husband's property), to withdraw the means 
 of satisfying the claims of her ante-nuptial creditors, and if she is 
 in trade her post-nuptial creditors as well.' The claims of her 
 ante-nuptial creditors have been recognized for some time in 
 cases where the woman indebted at the time of her marriage has 
 settled property to her separate use without power of anticipation, 
 and her ante-nuptial debts have been made a charge upon such 
 property.' This principle has now received legislative sanction.^ ^'s^' ^' ^''^' 
 
 Section 4. 
 Construction of Settlements. 
 
 This section will be divided into two sub-sections — a. The con- 
 struction of marriage articles ; 6. The construction of settlements 
 generally. 
 
 a. The guide for the construction of marriage articles is the Construction 
 presumed intention of the parties who have executed them. artioLe"*^^ 
 Articles duly signed, not followed by any settlement, form a 
 binding contract, capable of being enforced at the instance of 
 any person who may be entitled to enforce any claim under the 
 settlement, had such settlement been made in pursuance of the 
 articles. While the form of the articles is immaterial, they will 
 be specifically enforced, and the insertion of penalties in a bond 
 did not and will not exclude the jurisdiction of equity." Some- Exeeutoiy 
 times in marriage articles trusts are inserted which are in their 
 nature executory — i.e., where they remain to be carried out in the 
 future ; and such will be carried out according to the presumed 
 intention of the parties, but in a careful and accurate manner.' 
 But if the trusts are executed, they will be construed strictly Executed 
 
 trusts. 
 
 ^ Expartc Bolland, Be Clint, L. B. 17 Eq. 115. 
 
 ^ Sanger v. Sanger, L. E. 11 Eq. 470 ; see post, chap. xv. Separate Estate. 
 
 ^ 45 & 46 Vict. 0. 75, s. 19. But if a married woman, solvent at the time of her 
 marriage, and not a trader, makes a settlement whereby she deprives herself of the 
 power of anticipation, and covenants to bring into settlement all after-acquired property, 
 and contracts debts, and subsequently becomes entitled to property, the claims of her 
 trustees to such property will be held superior to those of her post-nuptial creditors, as 
 section 19 of the above Act leaves untouched the effect of restraint upon anticijiation so 
 far as debts contracted after marriage are concerned. See Hemingway v. Braithwaite, 
 61 L. T. 224. In this case, a woman while an infant married and contracted a debt, 
 for which judgment was recovered against her separate estate. On attaining her 
 majority, she executed a post-nuptial settlement, by which she restrained herself from 
 anticipating her property ; and it was held that the settlement was good against her 
 creditors by virtue of sect. 19 of the above Act. 
 
 * Chilliner v. Ohilliner, 2 Ves. Sen. 528 ; PreWe v. Boghurst, 1 Swanst. 309. 
 
 * Trevor v. Trevor, i P. Wms. 622. 
 
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142 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Oonstruction 
 •of final settle- 
 ments. 
 
 In favour of 
 children. 
 
 according to their legal limitations;' and as a result of this 
 principle the Courts of Equity have decreed strict settlements, 
 as giving most effect to the presumed intentions of the parties to 
 provide for the issue of the marriage ; but this does not hold 
 good in all cases.^ Lastly, the intentions of the parties, as 
 expressed in the articles, ought for safety to be embodied in the 
 more formal settlement. But under certain circumstances, as 
 where the proportions of the property are slender, in order to 
 avoid expense, the court will declare the true meaning of the 
 articles without causing a formal instrument to be prepared and 
 executed.' 
 
 h. In construing final settlements the court will look as closely 
 as it can to the intention of the parties ; and though bound to give 
 effect to clear and positive limitations, will allow the language of 
 the instrument, when feasible, to be controlled by its general 
 intention.* Thus, the plain meaning of the words must have 
 effect given to them, unless they are clearly inconsistent with the 
 general drift and intention of the document ; and to effect this 
 general intention words will be put in,* or be construed in a sense 
 other than their natural one.'' 
 
 The court, in construing settlements, looks with favour upon 
 the interests of the children,' but of course has no authority 
 to extend the language of the settlement beyond the fair construc- 
 tion of the words,' and cannot take into consideration the 
 hardship of any individual case, but must judge upon the docu- 
 ments as it finds them. The safe rule of construction in general 
 is to interpret the words both of deeds and wills according to 
 their plain natural import, unless by so doing some manifest 
 absurdity or inconvenience would follow, which will be sufficient 
 to satisfy the court that the person using the words must have 
 used them in some sense different from that which would be their 
 ordinary meaning." 
 
 ^ Jervoise v. Duhe of Northumberland, i Jac. & W. 559. 
 
 '■* See Howd v. Howel, 2 Ves. Sen. 358. 
 
 •^ Byam v. Byam, 24 L. J. Ch. 209. Where articles directing the settlement of per- 
 sonal property have not been carried out and executed in a more formal manner, the court 
 will take upon itself to direct a settlement of the property ; thus, where articles direct 
 personal property to be settled upon trust for the husband " during their lives," they 
 will be oanied into effect by giving the wife the first life-interest. For the mode of 
 settling a wife's fortune which is usually approved by the Court of Chancery, see Cogm, 
 V. Duffield, 2 Ch. D. 44. 
 
 ■^ Currie v. Larkins, 10 L. T. 47 ; Jeyes v. Savage, L. E. 10 Ch. 555, reversing 
 23 W. E. 742. 
 
 ^ Kentish v. Newman, 1 P. Wms. 234. 
 
 ^ Re Palmer, L. E. 19 Eq. 320 ; Se Daniel's Settlement Trusts, l Ch. D. 375. 
 
 ' Currie v. Larkins {ubi sup.). 
 
 ^ Reid V. Kcnrick,, i Jur. N. S. 897. 
 
 " See Scarisbrich v. Lord Slcelmersdak, 4 Y. & C. Ex. 78. S. C. on appeal, 
 Rootle V. Scarisbrich, i H. L. Cas. 67. 
 
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CHAP. viii.J MARRIAGE SETTLEMENTS. 143 
 
 The geaeral capacity to enter into a binding contract based on Contractual 
 the consideration of marriage depends upon the lex domicilii of dependlonto 
 the parties ; ' and by the same law the validity of a contract of '^''™'<^"- 
 settlement is to be decided in the absence of stipulations to the 
 contrary,^ 
 
 Settlements involving questions of foreign law will be Foreign law. 
 construed by the law of that country which was intended by the partSs"" °* 
 parties to govern their agreement,' and if English subjects followed. 
 contract that their marriage rights shall be regulated by a foreign 
 law, the English courts will give effect to such stipulation,'' and, 
 conversely, if persons of foreign domicil contract that their 
 marriage rights shall be regulated by English law, the English 
 courts will give efEect to such stipulation.* 
 
 Where a contract of marriage was executed in Scotland (where 
 the marriage took place) by a domiciled Englishman described as 
 residing in Scotland, and a Scotchwoman described as residing 
 there, and whose domicil was Scotch ; and trusts were declared of 
 English real property of the husband in English form, and of 
 personalty in Scotland belonging to the wife in English form, the 
 trusts of the husband's property were construed by English law." 
 
 A contract of marriage made in England in the Scotch form 
 between a domiciled Scotchman and an EngKsh woman (the 
 marriage taking place in England) will be construed according to 
 Scotch law.' But the mode of enforcing such contract must be in 
 accordance of the law of the country to the tribunal of which 
 recourse has been made.^ 
 
 Section 5. 
 
 Enforcement of Settlements. 
 
 Promises and agreements in consideration of marriage (but Promises in 
 
 not promises to marry) are within the provisions of the fourth of marriage" 
 
 section of the Statute of Frauds. That section runs, so far as it ■witUn the 
 
 is applicable to the subject under discussion, as follows : " No Frauds. 
 
 action shall be brought .... whereby to charge any person 
 
 upon any agreement made upon consideration of marriage .... 
 
 unless the agreement upon which such action shall be brought, 
 
 or some memorandum or note thereof, shall be in writing, and 
 
 ^ Cooper V. Cooper, 13 App. Cas! 88. 
 2 Be Cooke's Trusts, 56 L. J. Ch. 637. 
 
 ' In the Goods of Beid, i L. E. P. and D. 74; CoUissv. Hector, L. E. 19 Eq. 334. 
 * Bste V. Smyth, 23 L. J. Ch. 705. 
 ° Be Semando, Hernando v. Sawtell, 27 Ch. D. 284. 
 
 ^ Ohamierlain v. Napier, 15 Ch. D, 614. See Be Barnard, Barnard v. White, 56 
 I;. T. 9. 
 
 ' Duncan v. Cannan, 23 L. J. Ch. 265. 
 8 Don V. Idpmann, 5 CI. & F. i . 
 
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144 HUSBAND AND WIFE. [part i. 
 
 signed by the party to be cliarged therewith, or some other 
 person thereunto by him lawfully authorized." Thus, promises 
 and settlements in consideration of marriage must conform to the 
 requirements of the statute to be binding, and, if necessary, to 
 be specifically enforced. There is no magic in any particular 
 formality to be observed in drawing up the intention of the 
 parties,' yet the promise must be absolute, and contained in some 
 writing or writings signed by the person who has made the 
 promise, or by some agent whom he has lawfully and properly 
 authorized to act for him.^ Knowledge of the promise on the 
 part of the person seeking to enforce it is necessary, for otherwise 
 the marriage cannot be said to have taken place on the faith of 
 it.' It is now well settled that a written agreement after, in 
 pursuance of a parol agreement before, marriage is a sufficient 
 memorandum within the statute.'' 
 Mai-iiage alone Marriage is not for the purposes of specific performance con- 
 perforSmce sidered as a part-performance of a parol contract in relation to it, 
 of a contract ^nd for which it forms the consideration, for to hold this would 
 tiontoit. be to overrule the Statute of Frauds, which (as is pointed out 
 above) enacts that every agreement in consideration of marriage 
 to be binding must be in writing.* So, where there was no 
 ante-nuptial contract, but only a parol promise, and the settle- 
 ment was made shortly after marriage, the settlement was set 
 aside as being void as against creditors.^ Again, the execution 
 of a will made in the place of a marriage settlement, but revoked, 
 is not a sufficient part-performance.' But as between the 
 parties themselves or their representatives the parol agreement 
 is not void, and acts connected with the marriage, which inde- 
 pendently of it would be acts of part-performance, are not the 
 less so from being done in connection with it, and therefore differ 
 from cases where marriage is the sole act relied on. Thus, where 
 there is a written agreement after in pursuance of a parol agree- 
 ment before marriage, or where after the marriage possession of 
 the property is given up, or some other act is done, in pursuance 
 of the parol agreement, which independently of the marriage would 
 
 ^ See ante, p. 126. 
 
 2 Eammerdey y. De Bid, 12 CI. & F. 45. This memorandum must be in existence 
 at the time when the action to enforce the aecreement is brought, Lucas v. Dixon, 21 
 Q. B. D. 317. 
 
 ^ Ayliffe v. Tracy, 2 P. Wms. 66. 
 
 * Dart, V. & P. 250; Taylor V. SeecJi, 1 Ves. Sen. 297 ; Sammersley y. DeBiA, 
 12 CI. & Fin. 64 n. 
 
 5 Fry, Sp. Perf. 268 ; Dart, V. & P. 1140 ; Montacute v. Maxwell, i P. Wms. 618; 
 Lassence v. Tierney, 1 Mac. & G. 551. 
 
 ^ Warden v. Jones, 23 Beav. 487, in effect overruling Dundas v. Dutens, i Ves. 196. 
 
 ' Caton V. Caton, L. K. 2 H. L. 127. In this case Lord Cranworth seems to have 
 thought that the acts of specific performance could not bt by the party sought to be 
 charged. 
 
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CHAP, viii.] MAERIAGE SETTLEMENTS. U5 
 
 constitute part-performance, the contract may be enforced ; ' and 
 where a marriage was followed by the delivery up by the settlor 
 of possession of the things verbally promised to be conveyed, the 
 operation of the statute was held to be defeated.^ Again, as a 
 representation made by one party for the purpose of influencing 
 the conduct of the other party will in general be sufficient to 
 entitle him to the assistance of the court for the purpose of 
 realizing such representation, so if a person in the case of a 
 marriage acting on the faith of such representation celebrates the 
 marriage, equity will give effect to such representation, which, 
 however, must have been reduced into writing.^ And where one 
 party has put it out of his power to perform the contract, there is a 
 breach in respect of which the other party has an immediate right 
 of action to recover damages.* Where a proposal in writing to 
 leave property by will made to induce a marriage, is accepted and 
 the marriage takes place on the faith of it, if the proposal relates 
 to a defined piece of real property the court may decree a 
 conveyance of that property after the death of the person making 
 the proposal against all who claim under him as volunteers.' 
 But both the contract" and the acts in part-performance must be 
 certain.' 
 
 If marriage articles are in their nature such as can be Specific 
 enforced, the courts will enforce them at the instance of those of ma^ge* 
 who are entitled to ask for them to be specifically performed, articles. 
 Thus, the husband and wife, and the issue of the marriage, 
 can call upon those who are bound by them to perform their 
 covenants, or upon their real or personal representatives, and 
 volunteers claiming under them,' and purchasers with notice' 
 but not upon purchasers without notice.'" If a stranger is a 
 purchaser under the articles of any benefit or interest, and his 
 equity is as capable of being enforced as if he claimed directly 
 under the marriage consideration, he can claim to have them 
 enforced." It is, however, a rule of equity that the articles 
 must be specifically executed in toto or not at all ; and this will 
 be done without regard to the results thereby brought about, 
 provided the interests of purchasers for value be not afiected.'^ 
 
 ^ Walford v. Oray, 13 W. E. 761 : see also Taylor v. Beech, i Ves. Sen. 297. 
 
 2 Surcmne v. Pinniger, 3 De G. M. & G. 571 ; Ungley v. Ungley, 5 Ch. D. 887 ; 
 Sharman v. Sharman, 67 L. T. 834. 
 
 •^ Hammersley v. De Biel, 12 CI. & F. 45. 
 
 * Synge v. Synge [1894], i Q. B. 466. 
 
 5 Ibid. 
 
 ^ JRandall v. Morgan, 12 Ves. 67. 
 
 ' Gulliver v. Ctulliver, 2 Jur. N. S. 700. 
 
 ^ Trevor v. Trevor, i P. Wms. 622'; Pulvertoft v. Pvlvertoft, 18 Ves. 84. 
 
 ' Davies v. Davies, 4 Beav. 54. 
 lo Warwick v. Warwick, 3 Atk. 293. 
 
 " Heap V. Tmge, 9 Ha. 104. '- Davenport v. Bishopp, i Ph. 658. 
 
 K 
 
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146 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Settlements 
 
 Non-performance of the articles on one side is not as a rule an 
 excuse for their non-performance on the other ; ^ unless the 
 performance on the one side is clearly a condition precedent to 
 the performance on the other.^ 
 
 Covenants entered into by the husband and wife respectively 
 will be enforced ; and not only will the covenants of such be 
 enforced, but those of third persons ; for where a person agrees 
 or covenants to do a thing, equity will treat it as done, and will 
 decree its specific performance, either agains^: him personally, or 
 against his estate.^ 
 
 It is necessary to consider next by whom, and on whose behalf, 
 whom^and o'n marriage settlements can be enforced. An agreement or promise 
 whose behalf, jn consideration of marriage is regarded very strictly and differ- 
 ently from the majority of other contracts, in that the breach of 
 the obligation on the one side is not a suflBcient excuse for non- 
 performance on the other ; ■* and if the covenants are mutually 
 dependent upon each other, such dependence must be expressed 
 in clear and explicit terms.'' By marriage the interests of others 
 than the contracting parties, viz., the possible issue, are affected, 
 and their rights are regarded with jealousy ; indeed " children 
 born of the marriage are equally purchasers under both father 
 and mother." ^ The marriage must be one recognised as 
 legal, as otherwise unexecuted voluntary trusts will not be 
 enforced, and the beneficial interest in the settled property will 
 remain in the settlor,'' but if a settlor confers on a stranger 
 the absolute beneficial interest in property legally vested 
 in trustees, though for an illegal consideration {e.g., marriage 
 with a dead wife's sister), such settlement will be upheld.' 
 The execution of these covenants may be enforced by all in- 
 terested parties ; thus, by the husband," and the wife and her 
 trustees against the husband,'" and she will be allowed to enforce 
 the terms of a pre-nuptial contract for a settlement, where in 
 ignorance of her rights she has since the marriage accepted a 
 much smaller sum in satisfaction." The trustees can enforce 
 them against the wife and children ; though the wife will not be 
 
 ^ Jeston V. Key, 6 L. E. Ch. 6io. 
 
 ^ Lloyd V. Lloyd, 2 Myl. & Or. 192, 204. 
 
 ^ Graham v. Wichham, i De J. G. & S. 474. See ante, sect. 3, Covenants ia 
 Settlenaents, p. 132. 
 
 * Jeston V. Key [uli sup.). 
 
 ^ Lloyd V. Llotjd (uU sup.). 
 
 ^ Harvey v. Ashley, 3 Atk. 610. 
 
 ' Chapman v. Bradley, 4 De G. & S. 71 ; Pawson v. Brown, 13 Cb. D. 202. 
 
 ^ Ayerst v. JenJdns, L. E. 16 Eq. 275. In this case there was a considerable 
 lapse of time before attempting to impeach the settlement. 
 
 " Lee V. Lee, 4 Ch. D. 175. 
 
 '" Hastie v. Hastie, 2 Ch. D. 304. 
 
 " Gilchrist v. Herbert, 26 L. T. 381. 
 
 Husband. 
 Wife. 
 
 Trustees. 
 
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CHAP, vm.] MARRIAGE SETTLEMENTS. 147 
 
 bound by her Husband's covenant to settle her property on her 
 nest of kin.' The children of the settlor can enforce their Children. 
 rights, whether as purchasers or as volunteers, and are excepted 
 from the rule that volunteers cannot enforce covenants on their 
 behalf.^ 
 
 Though the covenants in a settlement are, as a rule, indepen- 
 dent of one another, and may be enforced on one side, notwith- 
 standing the other side has not performed those for which it is 
 responsible, yet the defaulting party cannot enforce the cove- 
 nants against the other party injured by his default.' But 
 if, on the one side, the covenant is contingent, and on the 
 other the right is absolute, the latter may be enforced, though 
 the performance of the contingent covenant is doubtful or 
 impossible.* 
 
 This leads to the inquiry of what is the nature of marriage as Marriage a 
 
 .-,,.» i J. T_ J -i J ■!. J] valuable oon- 
 
 a consideration for contracts based upon it, and its scope and sideration. 
 extent. Marriage is a valuable consideration, in fact, the highest 
 known to the law, and runs through the whole agreement based 
 upon it, supporting every provision with regard to the husband, 
 the wife, and the issue ; and a settlement founded on it will not 
 in general be voluntary or fraudulent either within 13 Bliz. c. 5, 
 and the bankruptcy laws, or 27 Eliz. c. 4, but will have effect 
 given to its terms. The issue of the marriage take as purchasers 
 in right of both parents, as though they had given valuable 
 consideration for their rights under it, and can enforce the per- 
 formance of the covenants contained in it, if default has been 
 made on the one side or the other.'' The real difficulties as to 
 enforcing settlements arise when those who are to take under 
 them are collaterals, and so not strictly within the consideration 
 of the agreement ; it then sometimes becomes a question whether 
 the trusts in their favour shall defeat the interests of adverse 
 claimants. As a general rule, remainders to collaterals are volun- Rule as to the 
 tary, unless there be some limitations subsequent to them within laterals' to" ' 
 the consideration, which must be supported, or unless a valuable t,^ng'in\™ir 
 consideration be given." But to enable volunteers under a post- favour. 
 nuptial settlement, such as children of a former marriage, to 
 enforce the trusts, such trusts must have been perfected, and the 
 court will refuse to perfect them in favour of the children who 
 
 ^ Gihbs V. Grady, 41 L. J. Ch. 163. 
 
 = Gale V. Gale, 6 Ch. D. 144. 
 
 ^ Crofton V. Ormsby, 2 Sch. & Lef. 602. 
 
 '' Basevi v. Serra, 3 Mer. 674. 
 
 5 Crofton V. Ormsby {vhi sup.) ; Campbell v. Ingilhy, 27 L. T. 0. S. 51 ; Jeston 
 V. Key, 6 L. E. Ch. 610. 
 
 " atackpoole v. Staehpoole, 2 Con. & Law, 489, 502. Per Sugden, L. C, Ireland, 
 arguendo. See also Kekewich v. Manning, 1 De G. M. & G. 1 76 ; Wollaston v. 
 Tribe, L. R. 9 Eq. 44; Be D'Angihau, Andrews v. Andrews, 15 Ch. D. 228. 
 
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148 HUSBAND AND WIFE. [part i. 
 
 are strangers to the contract, though valuable consideration has 
 moved between the parties to the settlement, where such trusts 
 remain to be perfected ; but where the settlement can be said to 
 be for valuable consideration as regards the collaterals, then the 
 court will interfere on their behalf.' Where the limitations in 
 favour of volunteers (e.g., children by a former marriage) are 
 intended by the settlor to be covered by those limitations in 
 favour of those who are within the marriage consideration, so that 
 the latter cannot take effect without also giving effect to the 
 former, then in such case the limitations in favour of collaterals 
 or volunteers can be enforced by them, and are good as against 
 subsequent purchasers or assignees for value.^ But certain limita- 
 tions in favour of collaterals are supported against subsequent 
 purchasers as being for valuable consideration ; for instance, a 
 Issue bj' former settlement by a widow in favour of her issue by a former marriage,' 
 Illegitimate ^"^ even where her issue is illegitimate ; ^ but the limitations in 
 issue. a, marriage settlement in favour of a widower's children have been 
 
 held void and voluntary under 27 Eliz. c. 4, against a subsequent 
 purchaser.* The settlement under which such volunteers claim is 
 voluntary within the meaning of the Customs and Inland Revenue 
 Acts 1881° and 1889' so far as the incidence of account duty 
 is concerned.^ Limitations in a settlement in favour of the issue 
 of a second marriage have also been held good against a subse- 
 quent purchaser for value of the property comprised in the settle- 
 ment.^ 
 As against This point has given rise to much litigation and dispute, and 
 
 settlSr limita- -, . . -^ -4. 1 • j r .• ^ f- mi i 
 
 tions in favour decisions on it have varied from time to time. The general run 
 cm be™''^"'^^ of the cases would seem to warrant the conclusion that, as against 
 enforced. the settlor and those claiming under him, limitations in favour of 
 
 ' Oreen v. Pater son^ 32 Ch. D. 95. 
 
 - De Mestre v. West [1891], App. Cas. 264 ; and see Machie v. Merhertsm, 9 
 App. Cas. 303. 
 
 ^ Newstead t. Searles, l Atk. 265 ; that is, though volunteers in a sense, they are 
 not liable to be defeated by subsequent purchasers, under 27 Eliz. c. 4. See Lindley, 
 L. J., ill Att.-Gen. v. Jacobs-Smith [1895], 2 Q. B. 341. See MacTde v. Herbertmn, 
 (ubi sup.). 
 
 ■• Clarke v. Wright, 6 H. & N. 849. Id this case the Court of Exchequer Chamber 
 upheld the principle of decision in Neiestead v. Searles (ubi sup.). But see Smith v. 
 Oherrill, L. R. 4 Eq. 390. 
 
 _ » Me Cameron v. Wells, 37 Ch. D. 32. In this case, Kay, J., refused to extend the 
 principle of Newstead v. Searles {ubi sup.), and said : "The only persons who come 
 within the_ marriage consideration — i.e., the only persons from ■whom it is assumed that 
 consideration moves — are the husband and wife and the children of the marriage. The 
 phrase that they 'come within the marriage consideration' means that they must be 
 treated as persons from whom consideration moves for the settlement. If there is in 
 the settlement a limitation in favour of collaterals, no consideration moves from those 
 collaterals unless they settle property of their own." 
 
 I' 44 & 45 Vict. c. 12, o. 38. 
 
 ' 52 & S3 Vict. c. 7, s. II. 
 
 * Att.-Oen. V. Jacohs-Smith (uhisup.). 
 
 1 Qayton v. JEarl of Wilton, 3 Madd. 302 ; Sugd. V. & P. 716 n., 717. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 149 
 
 collaterals contained iu an ante-nuptial settlement are binding/ 
 on the ground that if two parties in contemplation of a marriage 
 intended, and afterwards had between them, or for any other 
 consideration between themselves, coming under the description 
 of valuable, have entered into a contract together, in which one 
 of the stipulations made by them is a stipulation solely and 
 merely for the benefit of a third person, that third person being 
 even a stranger in blood to each, a stranger to the contract, and 
 a person from whom not any valuable or meritorious consideration 
 moves, has moved, or is to move, it cannot, generally speaking, 
 be competent to the one party to the contract to say that that 
 stipulation shall go for nothing, or shall not have any effect given 
 to it. The court will not apply to the consideration of provisions 
 in favour of volunteers contained in a contract founded on mar- 
 riage, the principles on which it would act in considering pro- 
 visions contained in a voluntary settlement.^ 
 
 In Wollaston v. Tribe,^ however, it was held that trusts in Woiiaston v. ■ 
 favour of the children of a future marriage and of collaterals '^'*''' 
 were purely voluntary, and could be set aside. But the Court of 
 Appeal has since decided that where a trust for volunteers had 
 been executed by the trust fund having been transferred to the 
 ti'ustees of the settlement, the trust cannot be revoked by the 
 settlor, and the claims of the volunteers defeated. "* Wollaston v. 
 Tribe has been doubted in the recent case of Tucker v. Bennett.^ 
 
 That marriage will support every settlement made in considera- ^°'^ f^J" 
 
 ■ niTr-nr Voluntary 
 
 fcion of it will not hold true, as will be seen further down." Mr. trusts win be 
 Dart submits that the, proper test of how far these voluntary agamsteute- 
 trusts will be supported as against subsequent &ow(i /^e purchasers '^l^^^^^^.j'^''" 
 is, "That where the limitations over are in favour of collateral 
 relations or connections, not of the settlor, but of the other con- 
 tracting party [whether wife or husband], the settlement itself 
 may be considered primd facie evidence of such other party having 
 stipulated for their insertion. So where, on a settlement of the 
 intended wife's estate, the limitations over are in favour of her 
 own collateral relations in derogation from her husband's marital 
 right by survivorship [in case of personalty], or as tenant by the 
 curtesy [in case of realty]. Where in any case other than that 
 referred to, the limitations over are in favour of the collateral 
 relations or connections of the settlor, such presumption cannot 
 so readily arise ; but it might be proved that the other party 
 
 ^ Davenport v. Bislwpp, 1 Ph. 6g8. 
 
 2 Tuelcer v. Bennett, 38 Ch. D. i. ^ ^ „, , 
 
 2 L. E. 9 JEq. 44 ; 31 L. T. 449. See also Olbhs v. Grady, 41 L. J. Ch. 163. 
 
 * Paul V. Paul, 20 Ch. D. 742. 
 
 ^ 38 Ch. D. I. 
 
 « Post, p. 152, Bub-tit. Eevocation and Setting Aside of Settlements. 
 
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150 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 stipulated for their insertion. If such a stipulation cannot be 
 presumed or proved, the limitations must, it is conceived, be con- 
 sidered voluntary, and void as against a subsequent hmd fide 
 purchaser."^ Again, where a third party has concurred in the 
 settlement, as where on the marriage of the tenant in tail, the 
 tenant for life in possession concurs in barring the entail, and 
 resettling the property, the validity of limitations in favour of 
 other branches of the family, and even of strangers, seems to be 
 unquestionable.'^ 
 Summary. To sum up the foregoing ; marriage is of itself a valuable and 
 
 good consideration, and will support a settlement and disposition 
 of property without any other consideration of a pecuniary or 
 lucrative nature passing. No formal contract of this kind need 
 be entered into ; and though the agreement does not show on 
 its face that marriage was the consideration, yet if sufficient 
 evidence can be gathered from the document itself, and from other 
 materials in the case, that it was the consideration, that will be 
 enough.^ 
 
 Section 6. 
 Rectification of Settlements. 
 
 Eeotification 
 of settlements. 
 
 In pursuance 
 of marriage 
 articles. 
 
 Variance. 
 
 The intervention of the court to rectify settlements is not 
 unfrequently requisite in cases where they purport to have been 
 made in pursuance of ante-nuptial articles, and which do not 
 carry out the intentions of the parties by reason of a variance 
 between the original articles and the final settlements. The 
 earlier cases dealing with the rectification of settlements by 
 marriage articles have been followed in modern times.' 
 
 Where articles and a settlement expressed to be made in pur- 
 suance of such articles are both made before marriage, and there 
 is any variance, there no evidence is necessary in order to have 
 the settlement corrected, for the settlement will be rectified by 
 the articles.* But where the settlement contains no reference 
 to the articles, yet if it can be shown that the settlement was 
 intended to be in conformity with the articles, and there is clear 
 and satisfactory evidence proving that the discrepancy had arisen 
 from a palpable mistake, the court will receive such evidence 
 and re-form the settlement, and make it conformable to the real 
 
 ' V. & P. 1014 ; Pdvertoft v. Pulvertoft, i8 Ves. 84. 
 - V. & P. 1016. 
 
 ' Hammersley v. De Biel, 12 CI. & P. 62 n. 
 * Cocjcm V. Duffield, 2 Ch. D. 44. 
 
 ' Bold T. Hutchinson, 24 L. J. Ch. 285 ; HarUdge v. Wogan, 5 Ha. 258 ; 
 V. Iliffe, L. E. 20 Eq. 666; Cogan v. Dufield {vhi sup.). 
 
 Smith 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 151 
 
 and clear intention of the parties.' Thus, where a settlement 
 was drawn up contrary to the terms of the agreement for it, it 
 was held to be settled in accordance with such terms. ^ 
 
 Mistake, then, is another ground on which the court will Mistake. 
 rectify settlements. The equitable relief of rectification is not 
 confined to mere executory contracts, by altering and conforming 
 them to the real intention of the parties, but is extended to 
 solemn instruments made and executed by the parties, whether 
 in pursuance or not of such executory or preliminary contracts, 
 on the principle that where the original intention of the parties 
 has not been carried out, the courts administering equity ought 
 to relieve against a clear mistake.^ It is necessary that the 
 mistake be common to both parties," and the court invariably 
 acts with caution in rectifying marriage settlements, and in re- 
 quiring strong proof of the exact contract which the parties intended 
 to enter into, because it is impossible to undo the marriage, or to 
 remit the parties to the same position in which they were before 
 the marriage ;' and so will be guided by contemporaneous 
 evidence as to what was the intention of the parties at the time 
 of the execution of the deed, and not what would have been 
 their intention if, when they executed it, the result of what they 
 did had been present to their mind." 
 
 The mistake need not be common to both parties where there Mistake need 
 was a fiduciary relation between one of them to the other, and ^ both parties 
 where it was the duty of the one to explain to the other the ^^l^J^^^^ '^ 
 real scope and effect of the deed executed between them. Thus, relation be- 
 
 •^ 111. tween them. 
 
 where the terms of a settlement were not such as the court 
 would have sanctioned in the absence of agreement, and ought 
 to have been explained to one of the parties before its execution, 
 on the death of the other party the settlement was rectified 
 on the uncorroborated testimony of the survivor, who had been 
 deceived, and the burden of proof that the settlement should not 
 be rectified was held to rest upon the representatives of the party 
 who ought to have explained the operation of the settlement.' 
 But where a father is living on affectionate terms with his 
 daughter he is the proper person to recommend and advise her in 
 matters relating to the provisions of her marriage settlement, and 
 there is no occasion for independent legal advice beyond that of 
 
 1 West V. Erissexj, I Br, P. C. 225 ; Rogers v. Earl, i Dick. 294 ; Bold y. HutcUn- 
 son (vhi sup.). 
 
 2 Cm-ley v. Lord Stafford, i De G. & J. 238. 
 
 3 St. Eq. Jur. 159 ; Smith v. lliffe {ubi sup.) ; Biggmson v. Kelly, i ii. & ±5. 253. 
 * Earl ofBradfm-d v. Earl of Romney, 6 L. T. 208 ; Sells w. £>ells,i Dr. & Sm. 42. 
 = Earrii v. Pepperell, L. R. S Eq. i, citing Earl of Bradford v. Earl of Romney 
 
 {ubi sup.); Tucker V. S&nnett, ;}S Gh.D. 1. 
 
 6 Wilkinson v. Nehon, 9 W. H. 393 ; Tucler v, Bennett {ubi sup.). 
 ' Lovesy t. Smith, 15 Ch. D. 655. 
 
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152 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 On behalf of 
 issue of the 
 marriage. 
 
 the solicitor who is preparing the lady's settlement. But if the 
 father is taking under the settlement a benefit from the daughter, 
 then she ought to be separately advised.' 
 
 This power of rectification the Court of Chancery has upon a 
 petition under the Trustee Eelief Act, 1847.^ 
 
 The mistake will be rectified not only on behalf of the husband 
 and wife, but of the issue of the marriage;' and although a 
 vested interest may be acquired, yet if a deed was executed in a 
 form in which it ought not to have been, and which the court is 
 satisfied is not in conformity with the intention of the parties, 
 then, regardless of all interests acquired, the court will put the 
 deed into a form which is in accordance with the intention of the 
 parties.^ 
 Parol evidence. The court will admit parol evidence to rectify the settlement, 
 even after a long lapse of time ; '" but the longer the lapse the more 
 careful will the court be in scrutinizing the evidence,^ yet under 
 certain circumstances, such parol evidence of the survivor of the 
 parties to the deed need not be corroborated.' 
 
 Belief will also be granted by the court on the ground of fraud. 
 It will be granted on the broad and substantial basis that if a 
 person is induced to enter into a contract by the fraudulent state- 
 ments of another, the persons making such statements should be 
 held to them ; and " a representation by one party, for the pur- 
 pose of influencing the conduct of the other party, will in general 
 be sufiicient to entitle him to the assistance of this court for the 
 purpose of realizing such representation."^ Mere mistake will 
 not suffice,^ and the representation must not be of mere intention 
 but of some fact.'" Equity will relieve not only on the ground of 
 fraud, but of improvidence." 
 
 Fraud. 
 
 Mere mistake 
 insufficient. 
 
 Section 7. 
 
 Bevocation and Setting Aside of Settlements. 
 
 The last point to be considered in this chapter is under what 
 circumstances settlements made in consideration of marriage can 
 
 ^ Tucker v. Bennett, 38 Ch. D. i. 
 
 2 io_& II Vict. c. 96, s. 2 ; iJe Bird's Trusts, 3 Ch. D. 214. 
 
 2 King v. King-Harinan, Ir. Kep. 7 Eq. 446. 
 
 ^ Per Malins, V. C, in Welman v. Welman, 15 Ch. D. 570, 578. 
 
 ^ Wolterbech v. Barrow, 23 Beav. 423. 
 
 15 M'Oormack v. M'Cormack, 1 Ir. Ch. D. 119 ; Ooolc v. Fearn, 48 L. J. Ch. 63. 
 There is a dictum of Lord Romilly that a settlement will not be rectified or re-formed 
 after too long a period of time. Gibbs v. Grady, 41 L. J. Ch. 163. 
 
 ' See Lovesy v. Smith, 15 Ch. D. 655. 
 
 8 Hammersley v. Be Biel, 12 CI. & Fin. 45. 
 
 » Evam V. Wyatt, 10 W. K. 813. 
 1" Jorden v. Money, j H. L. Cas. 185 ; Peach. Sett. 87. 
 " See jEveritt v. Everitt, L. E. 10 Eq. 405. 
 
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CHAP, viii.] MARRIAaE SETTLEMENTS. ]53 
 
 be revoked, and under what circumstances settlements made in 
 consideration of marriage, or after marriage, can be set aside. 
 
 It is now clear law that a settlement made in contemplation of Eevooatiouand 
 marriage can he revoked before marriage takes place. In one settlements'! °* 
 case, however,' a settlement revoked before marriage was held Settlements 
 
 ,..;,,... 1 •! • , , can be revoked 
 
 valid and subsisting ; while m other cases^ the contrary doctrine before mar- 
 was upheld ; but the parties must act in good faith. In p'lace. ^ "^ 
 modern settlements, as a rule, the possibility of the marriage not 
 taking place is provided for by directing the trustees to hold the 
 settled property in trust for those to whom it belongs until the 
 marriage, and thenceforth upon the trusts to arise on that event.' 
 Where the marriage has taken place, or there is no power of 
 revocation in the deed, the settlement is of course irrevocable.^ 
 If a settlement contain a power of revocation, a conveyance to a 
 subsequent purchaser for value will defeat the settlement, though 
 made for valuable consideration : " but the mere fact of a power of 
 revocation in the settlement being reserved to the husband is not, 
 per se, evidence that the settlement was fraudulent." Settlements, 
 including those on marriage, may be set aside though based setting aside 
 on valuable consideration, if they lack lona fides in their inception, °* settlements. 
 and are made with a fraudulent purpose, but a settlement will 
 not be set aside at the instance of one spouse on the ground of 
 an alleged fraudulent representation of ante-nuptial moral mis- 
 conduct on the part of the other spouse.' 
 
 Voluntary settlements, or those in which no consideration, 
 whether meritorious or valuable, moves, may be set aside ; thus, 
 if there be anything in the shape of consideration which can be 
 called valuable, the settlement is not voluntary. Voluntary 
 settlements, on the other hand, may be supported and enforced 
 if executed in good faith, and do not prevent the settlors from 
 satisfying the claims of their creditors. Thus, not every arrange- 
 ment for valuable consideration will be supported, nor every 
 voluntary arrangement set aside, because the valuable consideration 
 is wanting. 
 
 As between the parties, a settlement, though voluntary, is per- a voluntary 
 
 1 Pagey. Horrte, ii Beav. 227. 
 
 2 Bobinsony. Dickenson, 3 Euss. 399; Tlwmas v. Brennan, 1$ L. J. Oh. 420; 
 Mitfwd y. Ueynolds, 16 Sim. 131 ; Bond v. Walford, 32 Ch. D. 238. The circum- 
 stances of BoUnson y. DkHnson were peculiar. The settlement was ante-nuptial ; 
 the marriage was discovered to be void ; the parties revoked the settlement, and exe- 
 cuted another differing in some respects from the first, and then were validly married. 
 The trusts of the sec(TO(Z settlement were upheld. 
 
 3 It is not unusual now to provide that if the marriage does not take place withm a 
 given period— e.^., a. year— the trust property shall revert absolutely to the settlor. 
 
 * Vandehur y. Vandeleur, 3 CI. & F. 82. ... 
 
 = 27 Eliz. u 4, B. S. See Sugd. V. & P. 721 ; Peachey, oh.np. vni. p. 226 et aeq. 
 
 « Ex parte Tarn, Be Tarn, 57 J. P. 7^9- 
 
 ' Johnston y. Johmton, 52 L. T. 76. 
 
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lU 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 cannot as a rule 
 be set aside at 
 the will of the 
 settlor. 
 
 Settlements 
 affected by 13 
 Eliz. c. 5. 
 
 Distinction 
 between -ante- 
 nuptial and 
 post-nuptial 
 settlements. 
 Ante-nuptial 
 settlements. 
 
 fectly valid, and cannot be set aside at the mere will of the 
 settlor,^ except where he has transferred the subject of the 
 settlement to subsequent purchasers for value, and this irre- 
 spectively of whether the latter had or had not notice of the 
 voluntary arrangement f but in many instances the settlement 
 will be supported in favour of the volunteers as against subsequent 
 purchasers for value. Where a settlor seeks to have a voluntary 
 settlement set aside on the ground of mistake, the onus of proof 
 lies upon him, and the court, especially after long acquiescence, 
 will exact very clear and convincing evidence of such mistake; 
 and if it is not forthcoming will refuse to deprive the volunteers 
 of their interests.^ 
 
 Settlements affected hy iz Eliz. c. 5. — A marriage settlement, 
 like any other, is liable to be set aside by those whose claims on 
 the settlor are affected by its dispositions, for though marriage is 
 a valuable consideration, it will not support every settlement. 
 This has been the law since the passing of 1 3 Bliz. c. 5 (made 
 perpetual by 29 Eliz. c. 5). By the second section of that Act, 
 it was enacted that all and every feoffment, gift, grant,_ alienation, 
 bargain, and conveyance of lands, tenements and hereditaments, 
 goods and chattels, &c., made with a fraudulent and covinous 
 intent to disturb, hinder, delay, or defraud the rights of others, 
 shall as against such be clearly and utterly void and of none 
 effect. The intention of this statute is to < protect the rights of 
 creditors, and the effect of it is that every conveyance or settle- 
 ment, whether for valuable consideration, or voluntary, must be 
 bond fide in its inception ; and a settlement, though made for 
 valuable consideration (marriage not excepted) will, if entered' 
 into with the intent to defeat, hinder, and delay the creditors of 
 the settlor, be set aside.'' Every voluntary conveyance is not 
 void against the creditors as being fraudulent, but may be 
 good and valid, if there be a reasonable cause for its 
 existence.'' 
 
 A broad and important distinction is to be drawn between 
 ante-nuptial and post-nuptial settlements, on the point of their 
 liability to be set aside as being within the mischief of 13 Bliz. 
 c. 5. To set aside an ante-nuptial settlement it is necessary to 
 prove, which can be done only under the bankruptcy laws, an 
 actual and express intent to defeat creditors." Fraud of the 
 
 ' For the same principles of law, see ante, section 5, Enforcement of Settlements. 
 ^ Under 27 Eliz. c. 4 ; Otley v. Jlanning, 9 East 59 ; see post, 159. 
 ^ Henry v. Armstrong, 44 L. T. 918. 
 * Twyne's Case, 3 Eep. 80 h. 
 
 5 Holmes v. Penney, 26 L. J. Cb. i8r ; Beclett v. Tasker, 19 Q. B. D. 7. 
 <* Colombine v. Penhall, i Sm. & G. 228 ; FenJiall v. Elwin, I Sm. & G. 25^ ! 
 Bulmer v. Hunter, L. R. 8 Eq. 46. 
 
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CHAP. Yiu.] MAREIAGE SETTLEMENTS. I55 
 
 settlor brings the settlement within the scope of the Act. Where 
 a settlement is based upon valuable consideration, both settlor and 
 purchaser under the deed must concur in the fraud.' In Campion campion y. 
 V. Cotton^ it was laid down that where there was no evidence of '^°'''"^- 
 fraud in the purpose of the settlement, an ante-nuptial settle- 
 ment could not be aside, though the settlor was at the time 
 of the making of it in embarrassed circumstances, and there 
 was a false recital that the settled property belonged to the 
 wife. In the same case it was held that the fact of the settlor's 
 being indebted at the time of the settlement and of the 
 wife knowing him to be so would not affect the validity of the 
 deed. 
 
 Again, in Fraser v. Thompson,^ it was said by Vice-Ohancellor Eraser v. 
 Stuart, " Unless the court finds that the sacred nature of that g^r That 
 consideration has been profaned, and finds that the ceremony of <^^'^<"i™^*™?^® 
 marriage has been resorted to as a mere pretence and cloak for be set aside. 
 fraud, and finds clear evidence that it is a fraudulent marriage, 
 there is no case in which any settlement of property made previous 
 to and in consideration of marriage has been set aside on the 
 ground of the insolvency or embarrassed circumstances of the 
 husband, or as fraudulent against his creditors on a subsequent 
 bankruptcy."* 
 
 In Colombine v. FenhalP this fraudulent intent to defeat the CoiomMmv. 
 rights of creditors was apparent. In each of these last two cases ^^"''"'''■ 
 the wife was aware of her future husband's embarrassed 
 circumstances, and so party to the fraud ; and no considera- 
 tion for the settlement, apart from the marriage, moved from 
 her. Such a settlement is an act of bankruptcy by the settlor ; Fraudulent 
 
 -,*,-, . .T ^. Ml I J j_ii J- A settlement aa 
 
 and the marriage consideration will not support a settlement 01 act of bank- 
 property which does not fairly and rightfully belong to the settlor "^"ptT- 
 but to his creditors.'' 
 
 " A voluntary conveyance by a person not indebted is clearly 
 good against creditors. , . . Fraud vitiates the transaction, but a 
 settlement not frandulent, by a party not indebted, is valid though 
 voluntary."' Where the settlement is voluntary, or post- Post-nuptial 
 nuptial, no actual proof of an intention to defraud creditors need 
 be forthcoming, and it will be set aside if the circumstances are 
 
 ^ Be Johnson, Golden v. Gillam, 51 L. J. Ch. 503, affirming 20 Ch. D. 389. 
 
 ^17 Ves. 49. 
 
 ' I Giff. 49, 65. The decision of the Vice- Chancellor was overruled (4_De G. &. J. 
 659), expressly on the ground that there was evidence of fraud and an intention to 
 defeat creditors in that case. 
 
 * See Parnell v. Steadman, i Cab. & Ell. 153 ; Me Pennington, Ex parte Cooper, 
 59 L. T. 774. 
 
 * Ubi snip. 
 
 8 Fraser v. Thompson, 4 De G. & J. 659 ; ColomUne v. PenhalL {ubi sup.). 
 ' Per Sir T. Plumer, M. E., in Battershee v. Farrington, i Swanst. 113. 
 
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156 HUSBAND AND WIFE. [part i_ 
 
 such that it would necessarily have the effect of defeating and 
 
 delaying their rights.' But it seems that the mere fact that it 
 
 has in the event prevented a creditor, who was such when it was 
 
 made, from obtaining payment of his debt, is not of itself suflBcient 
 
 to enable him to set it aside.^ No man is allowed to be generous 
 
 before he is just,^ even if generosity dictate the act, for that which 
 
 might be a bounteous and generous action towards the recipient, 
 
 might also be fraudulent against the creditors of the settlor. 
 
 Doubt as to the There has been much doubt expressed as to what is the true rule 
 
 vai'idity'rf ^^ t^st to be applied to the validity or invalidity of these voluntary 
 
 voluntary settlements. In Spirett v. Willows,'' Lord Westbury laid down, 
 
 S6tti6IU.6IltS. T ■» 1 1 T 
 
 Lord West- " If the debt of the creditor by whom the voluntary settlement is 
 t!' riKo**"** impeached existed at the date of the settlement, and it is shown 
 that the remedy of the creditor is defeated or delayed by the 
 existence of the settlement, it is immaterial whether the debtor 
 was or was not solvent after making the settlement. But if a 
 voluntary settlement or deed of gift be impeached by subsequent 
 creditors whose debts had not been contracted at the date of the 
 settlement, then it is necessary to show evidence that the debtor 
 made the settlement with express intent to delay, 'hinder, or 
 defraud creditors, or that after the settlement, the settlor had not 
 sufficient means or reasonable expectation of being able to pay 
 his then existing debts, that is to say, was reduced to a state of 
 insolvency , in which case the law infers that the settlement was 
 made with intent to delay, hinder, or defraud creditors, and is 
 therefore fraudulent and void." These propositions have been 
 treated as going too far, and as not being in harmony with the 
 True testgiven decided cases ; and the true test applicable to the validity or 
 Pop"""^"^'^ ' invalidity of a voluntary deed would appear to be, not whether 
 there be any debt in existence which was due prior to the settle- 
 ment, and which in the result has been unpaid, although the 
 settlor continued solvent after making the settlement;' but 
 whether from all the circumstances the court can infer that the 
 settlement was made with the intent actual or constructive of 
 delaying or hindering creditors.'* Thus, where a trader by a post- 
 nuptial settlement settled all his property of every description, 
 both present and future, upon trust for his wife for her separate 
 use for life, remainder for himself for life, remainder for his chil- 
 dren, reserving the control of his stock in trade to himself, and 
 
 ^ Freeman v. Pope, L. K. 5 Ch. App. 538. 
 
 ^ Freeman v. Pope {ubi svp.). 
 
 ■■* Copis v. Middleton, 2 Madd. 410, 4^0. 
 
 ^ 34 L. J. Ch. 365. 
 
 =* Crossleijy. Elworthy, L. E. 12 Eq. 158 ; Freeman v. Pope (uhi sup.) (in this 
 last case Spirett v. Willows was considered, and commented on, as mentioned in tie 
 text); Fx parte Russell, Re Butterworth, 19 Ch. U. 588. 
 
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CHAP. viii.J MARRIAGE SETTLEMENTS. 157 
 
 five years later became bankrupt, the settlement was set aside as 
 being void under the statute, though it did not appear that the 
 settlor was indebted at the time of its execution, except on 
 mortgages on part of the settled property, which had since been 
 satisfied.' So, too, in the case of Mackay v. Doiiglas,' &Maci:ay^. 
 voluntary settlement by which the settlor took the bulk of his -°''"*'«*- 
 property out of the reach of his creditors shortly before engaging 
 in a trade was set aside in a suit on behalf of creditors who had 
 become such after the settlement, though there were no creditors 
 whose debts arose before the date of the settlement, and there 
 was a doubt at the time of the settlement whether the settlor 
 would or would not engage in the trade. In the same case it 
 was held that in order to set aside a voluntary settlement it is 
 not necessary to show that the settlor contemplated becoming 
 actually indebted ; it is sufficient if he contemplated a state of 
 things which might result in bankruptcy or insolvency. 
 
 Want of consideration, accompanied by embarrassed circum- Want of con- 
 stances, has generally been considered to be sufficient to bring a emtarras"d°/ 
 deed within the statute 13 Eliz. c. 5. Numerous cases have ''""°"°'^'*'^''^^- 
 arisen on this point in courts of equity, especially with reference 
 to post-nuptial settlements. The principles deducible from them 
 appear to be that whilst, on the one hand, it is not necessary that 
 the settlor should be absolutely insolvent at the date of the deed, 
 so, on the other hand, the mere fact of his being indebted is not 
 sufficient to invalidate the deed ; but that if, having regard to the 
 debts owing by him at the date of the deed, and the proportion of 
 his property comprised in it, his creditors are defeated or delayed, 
 that is, if, in fact, the property omitted from the settlement and 
 immediately available for the payment of his debts, is not sufficient 
 for that purpose, the deed will be fraudulent and void within the 
 statute.' In an American case,^ it was held that a settlement on Sedgwick v. 
 his wife made by a husband when solvent and in a condition to make 
 such a gift, if not unreasonable in amount, and after its making 
 there were abundant assets to pay his debts, was good, and ought 
 to be upheld. So, too, a post-nuptial settlement executed with the 
 approval of the Court of Chancery by an infant wife after she had 
 contracted a debt of no very great amount was upheld as against 
 her creditor.* 
 
 If the deed is set aside at the instance of creditors at the date y^° "?fy 
 
 impeacn tne 
 
 of the deed, subsequent creditors are entitled to the benefit of the settlement. 
 
 ^ Ware v. Gardner, L. E. 7 Eq. 317. 
 
 2 L. B. 14 Eq. 106. See Be Johnson, Golden v. Gillam, 51 L. J. Ch. 503. 
 
 ' See Re Midler, Midler v. Midler, 22 Ch. D. 74. 
 
 * Sedgwicle y. Place, 6 Am. Law. Kev. 181, reported in 25 L. T. 307. 
 
 * Hemingway v. Braithwaite, 61 L. T. 224. 
 
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fraud. 
 
 158 HUSBAND AND WIFE. [paet i. 
 
 suit, and to come in pari pctssu with the antecedent creditors ; and 
 a subsequent creditor may maintain a suit to set aside the deed, if 
 any debt owing at its date remain due, or it can be shown that 
 the deed was intended to defeat subsequent creditors ; ' but the 
 onus of proof of fraud lies on such subsequent creditors.^ Where 
 Constructive there is no positive evidence of fraud, an intention to defeat or 
 delay his creditors may be inferred from the indebtedness of the 
 settlor, and the want of consideration for the settlement. The 
 mere existence of a debt at the time of the settlement would not 
 necessarily invalidate it,^ but it must be substantial indebtedness. 
 A voluntary settlement has been upheld which was made by a 
 husband on his wife and children, not indebted at the time, and 
 without any clear fraudulent intention to defeat his creditors ; * but 
 a voluntary settlement by a woman was set aside where it deprived 
 her of the means of paying her debts.* But a voluntary settle- 
 ment in which provision is made for the payment of the settlor's 
 debts will be upheld as against future creditors, and the mere 
 fact of a single creditor being unpaid will not invalidate it.' 
 When realty which has been settled by a voluntary deed is sold 
 to a purchaser for value the volunteers under the settlement have 
 no title to the purchase-money.' 
 Vohmtary set- The voluntary settlement by a woman of her real estate is 
 real estate by governed by the like rules as that of a man, except, it would seem, 
 women. where she was married at the time she entered into it, and was 
 
 1882, sect. 19.' restrained from anticipating or aliening it ; during coverture she 
 could not give a valid title to a subsequent purchaser, though, if 
 she became discovert, the voluntary nature of the transaction 
 would enable her to defeat her volunteers.* The foregoing 
 principles are applicable to the settlements of women as well 
 as of men ; for by the Married Women's Property Act, 1882,' 
 it is provided that " no settlement or agreement shall have any 
 greater force or validity against creditors of such woman than a 
 like settlement or agreement for a settlement made or entered 
 into by a man would have against his creditors." If she by 
 ante-nuptial settlement withdraw property from her existing 
 creditors with the intent to defeat or delay them, the arrangement 
 
 ^ Stileman v. Ashdown, 2 Atk. 477 ; Barling v. Bisliopp, 29 Beav. 4171 Jerikyn 
 V. Vaughan, 3 Drew. 419 ; Madcay v. Douglas, L. R. 14 Eq. 106. 
 
 ^ Crossley v. Elworthy, L. R. 12 Eq. 158. 
 
 ^ Kidney v. Ooussmaher, 12 Ves. 148. 
 
 * Battershee v. Farringdon, i Swanst. 106 ; but see contra, Lmh v, Wilkinson,, 5 
 Ves. 387. 
 
 ^ Smith V. Cherrill, L. R. 4 Eq. 390. 
 
 ^ Me Johnson, Oolden v. Gillam, 20 Ch. D. 389. 
 
 '' Dalcing v. Whymper, 26 Beav. 568. 
 
 ^ Probable effept of sect. 19 of Married Women's Property Act, 1882. 
 
 ^ 45 & 46 Vict. c. 75, s. 19. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. 159 
 
 will be set aside ; so, too, if at the time of making a post-nuptial 
 or voluntary settlement she was substantially indebted, in the 
 absence of evidence to show that she actually intended to defraud 
 or delay her creditors, the arrangement will be set aside. But 
 there is this distinction between her case and that of her husband, 
 viz., that while he cannot even by an ante-nuptial agreement for 
 valuable consideration covenant to bring his after-acquired pro- 
 perty into settlement, so as to withdraw it from his post-nuptial 
 creditors, she can so validly covenant, and a restraint against anti- 
 cipation put upon herself for that purpose will be effectuated.' 
 
 Settlements affected hy 27 Miz. c. 4. — This statute, which was Settlements 
 made perpetual by 30 Eliz. c. 57, was passed for the protection Bff2';'e^^^^ ^^ 
 of purchasers, and affects only real estate. It enacted that every Real estate. 
 conveyance, grant, charge, lease, estate and limitation of use of in 
 or out of any lands, tenements, or hereditaments whatsoever, for 
 the intent and purpose to defraud and deceive such persons, &c., 
 as should purchase them, should be wholly void and frustrate 
 against such purchasers, or those who claimed under them. Pur- wiio are pur- 
 chasers under this Act have been held to be such as claim under the Act. 
 a post-nuptial settlement made in pursuance of ante-nuptial 
 articles, or of an additional portion,^ or under a post-nuptial 
 settlement made in consideration of the wife joining to destroy an 
 ante-nuptial settlement,^ or of the husband giving up his interest 
 in his wife's estate,* also mortgagees,^ lessees, and purchasers 
 under an ante-nuptial settlement. The favour and regard evinced 
 by the law towards marriage are at this point conspicuous ; for it 
 is now " settled that if the husband or wife, each of them having 
 interests, no matter how much, or of what degree, or of what 
 quality, come to an agreement which is afterwards embodied in a 
 settlement, that is a bargain between husband and wife which is 
 not a transaction without valuable consideration." ° This exposi- 
 tion of the law was quoted by Jessel, M.E., with approval, in Jie 
 Foster and ListerJ A post-nuptial bargain between husband and 
 wife, in which both give up something in order to make a re- 
 settlement, is not voluntary and void under this statute.^ Though 
 
 1 Effect of sect. 19 of Married Women's Property Act, 1882. The latter part of 
 this section, which limits the effect of the restriction against anticipation, and puts a 
 woman's settlement on the same level as a man's in respect of her creditors, is not 
 retrospective, but applies only to settlements made after the Act came into force. Smith 
 V. Whitlock, 55 L. J. Q. B. 206. 
 
 ^ Dundas v. Dutene, 2 Cox, 235. 
 
 ' Scott V. Bell, 2 Lev. 70. 
 
 * Hewison v. Negus, 22 L. J. Ch. 655. 
 
 * Dolphin V. Aylward, L. K. 4 H. L 486. 
 
 " Per Bacon, V. C, in Teasdale v. Braithwaite, 4 Ch. D. 85, 90, affirmed on appeal 
 5 Ch. D. 630. . „, 
 
 ' 6 Ch. D. 87, in which he disapproved of Butterfield v. Heath, 22 L. J. Gh. 270. 
 ^ Sohreiber v. Dinlcel, 54 L. T. 911. 
 
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160 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Volunteers ; 
 when capable 
 of enforcing 
 the trusts. 
 
 Consideration 
 need not be 
 pecuniarily 
 adequate, or 
 appear on the 
 face of the 
 document. 
 
 Settlements 
 affected by the 
 Bankruptcy 
 Act, 1883. 
 
 a limitation in a marriage settlement in favour of a widower's 
 children is voluntary and void against a purchaser,' yet a settle- 
 ment by a widower on his second marriage, in which he assigned to 
 his son by a former marriage certain freeholds on trust for himseK 
 for life, and after death for his said son, was upheld as being for 
 valuable consideration on the ground of responsibility for the pay- 
 ment of rent, &c.^ 
 
 To enable volunteers, such as children of a former marriage, 
 under a post-nuptial settlement to enforce the trusts such trusts 
 must have been perfected ; and the court will refuse to perfect 
 executory trusts in their favour, though valuable consideration has 
 moved between the parties to the settlement ; but where the 
 settlement can be said to be for valuable consideration as regards 
 the collaterals, then the court will interfere on their behalf^ But 
 where the limitations in favour of volunteers {e.g., children by a 
 former marriage) are intended by the settlor to be covered by 
 those limitations in favour of those who are within the marriage 
 consideration, so that the latter cannot take effect without also 
 giving effect to the former, then in such case the limitations in 
 favour of collaterals or volunteers can be enforced by them and 
 are good as against purchasers or assignees for value.'' But a 
 mere special agreement between the parties to a marriage settle- 
 ment, acceptance by one of the parties of different interests in 
 the settled property from those which the law would have given, 
 and omission to provide for all or some of the issue of the marriage 
 are insufficient to support a mere limitation in favour of the 
 settlor's illegitimate child and his issue.* It is not necessary that 
 under all circumstances the consideration should be pecuniarily 
 very adequate, or that it should appear on the face of the docu- 
 ment, if the fact of its existence can be proved/ except in the 
 instance of an ante-nuptial promise by an infant, which must 
 appear in the post-nuptial settlement, for the purpose of ratifica- 
 tion by him under Lord Tenterden's Act.' 
 
 Settlements affected hy the Bankruptcy Act, 1883.^ — Under the 
 Bankruptcy Act, iSSg,** the settlements affected by it were con- 
 fined to those made by traders only, but by the more recent 
 Act the distinction between traders and non-traders is abolished 
 
 ^ Re Cameron v. Wells, 37 Ch. D. 32. 
 ^ Price V. Jenkins, 5 Ch. I). 6ig. 
 ^ Green v. Paterson, 32 Ch. D. 95. 
 
 * Be Mestre v. West [1891], App. Cas. 264 ; and see Mackie v. HerUrtson, 9 App. 
 Cas. 303. 
 
 ^ De Mestre v. West [ubi sup. ). 
 
 " Baysjpoole v. Collins, L. R. 6 Ch. App. 228. 
 
 7 Trowell v. Shenton, 8 Ch. D. 318. 
 
 ^ 46 & 47 Vict. u. 52. 
 
 '' 32 & 33 Yict. c. 71, s. 91. 
 
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CHAP. VIII.] MARRIAGE SETTLEMENTS. ICl 
 
 and the settlements of both classes of persons are to be construed 
 alike.' Section 47 provides "any settlement of property not Section 47. 
 being a settlement made before and in consideration of marriage, or 
 made in favour of a purchaser or incumbrancer in good faith and 
 for valuable consideration, or a settlement made on or for the wife 
 ■or children of the settlor of property which has accrued to the 
 settlor after marriage in right of his wife, shall, if the settlor be- 
 comes bankrupt within two years after the date of the settlement, 
 be void against the trustee in bankruptcy, and shall, if the settlor When voiun- 
 becomes bankrupt at any subsequent time within ten years after meutrvoid. 
 the date of the settlement, be void against the trustee in bank- 
 ruptcy, unless the parties claiming under the settlement can 
 prove that the settlor was, at the time of the making the settle- 
 ment, able to pay all his debts without the aid of the property 
 comprised in the settlement, and that the interest of the settlor 
 in such property had passed to the trustee of such settlement on 
 the execution thereof." If the purchaser act in good faith that is 
 aufiBcient, and it is not necessary that both parties to the transac- 
 tion should act in good faith." A settlement is void under this 
 section, if the amount put into settlement is such as to leave the 
 settlor, at the time of its execution, unable to pay his debts in 
 full without it,' or if without such property he cannot pay his 
 debts in the way in which he proposes to pay them, namely, by 
 continuing his business/ The settlement to be impeached must 
 be one which passes the property to persons other than the settlor, 
 and not one which leaves the settlor still able to pay his debts, 
 though his means of paying them may be in part derived from 
 the interest he takes under the settlement.^ 
 
 Bv the Married Women's Property Act, 1882, a married Man-ied 
 
 • T /iiij -u woman 
 
 woman who carries on a trade apart from her husband may be separate trader 
 made a bankrupt," and in consequence a married woman trader tS'bankruptcy 
 may generally be said to be now amenable to the bankruptcy la'^^s. 
 laws, as though she were a single woman, or a man ; and her 
 settlements will be set aside if they infringe the spirit of the 
 
 ^ This Act is, however, not retrospective, and the former distinction hetween 
 traders and non-traders will be preserved in regard to voluntary settlements made 
 before the Act came into force (.January i, 1884). From and after this datethe law is 
 common to both, and the effect of the decisions in oases concerned only with traders 
 under 32 & 33 Vict. c. 71, s. 91, will now be applicable to non-traders as well. 
 
 2 Mackintosh v. Pofjose [1895], i Cb. 505. In this case the wife,_ who was possessed 
 •of separate property after marriage, allowed that property to pass into her husband a 
 hands, who, having applied part of it to his own use, settled the residue of it, together 
 with other property of his own, upon trusts, under which he took a life interest, with a 
 proviso for the cesser of his interest in the event of his bankruptcy, and it was held that 
 the proviso was good. 
 
 ^ Hx parte Huxtable, Be Coniheer, 2 Ch. D. 54. 
 
 * Per Lindley, L. J. in Ex parte Bussell, Be Butterworth, 19 Ch. U. 58S. 
 ^ Be Lowndes, 18 Q. B. D. 677. 
 
 * 45 & 46 Vict. c. 75, tj. I, 8ub-s. 5. 
 
 L 
 
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102 HUSBAND AND WIFE. [paet i. 
 
 bankruptcy laws, e.g., a settlement of her property upon herself 
 to be defeasible upon her bankruptcy, " for no settlement or 
 agreement for a settlement shall have any greater force or validity 
 against creditors of such woman than a like settlement or agree- 
 ment for a settlement made or entered into by a man would have 
 against his creditors.'" Her property acquired during coverture 
 will become assets in the hands of her trustee. But in all other 
 respects the Act is untouched by the Bankruptcy Act.^ Since a 
 married woman can be made liable to bankruptcy in respect of 
 her separate trading, her property acquired during coverture will 
 become assets in the hands of her trustee in bankruptcy. If she 
 is in trade at the time of her marriage, and making a settlement, 
 and intends to carry it on apart from her husband, a covenant for 
 the future settlement of her after-acquired money or property, on 
 her becoming bankrupt in respect of such trade, will, in all pro- 
 bability, be held void against her trustee in the bankruptcy.' 
 
 A trustee of a voluntary marriage settlement is not a " pur- 
 chaser " within the meaning of this 47th section.'' But where a 
 settlor in pursuance of an arrangement with his father, and to 
 secure a provision for his children, settled property on trustees 
 for the benefit of his children, and became bankrupt within 
 two years, the settlement .was upheld, on the ground that the 
 Vohmtaiy father was a purchaser for valuable consideration.* A voluntary 
 persomrchat- Settlement of personal chattels must be duly attested and regis- 
 teis to be tered as a bill of sale within seven clear days after its execution, 
 
 registered as _ ... 
 
 bill of sale. otherwise such bill of sale will be void." 
 
 Difference in The mark of distinction between the operation of this section 
 betwe*en"this ^^^^ ^^^^ ^^ Section 2 of 1 3 EHz. c 5, is that the former reUeves 
 section and tjig court from inquiring into questions of mala fides, or fraud, 
 c. s, s. 2. but enables it simply to inquire whether at the date of the settle- 
 ment the settlor was able to pay his debts.' A covenant to 
 assign to trustees all future property acquired by the settlor 
 during coverture comes within the mischief of this statute, and is 
 void against the trustees in bankruptcy.' Another point seems to 
 remain to be considered. It is now established law that a settle- 
 ment executed after marriage in pursuance of binding ante-nuptial 
 articles is a settlement for valuable consideration ; ' also, that a 
 
 1 45 & 46 Vict. 0. 75, B. 19. 2 46 & 47 Yict^ ^._ j2, s. 152. 
 
 ' See 46 & 47 Vict. 0. 52, s. 4, sub-s. 2. 
 
 ■* Mx parte Hillman, Be Pwmfrey, 10 Ch. D. 622. 
 
 ^ Hance v. Harding, 20 Q. B. I). 732. 
 
 " 41 & 42 Vict. c. 31, s. 4 ; 45 & 46 Vict. c. 43, ss. S, 15 ; i?e Count D'Epineuil, 
 20 Ch. D. 217 ; Fowler v. Foster, 28 L. J. Q. B. 210 ; and see Sicift v. Panneli, 24 
 Ch. D. 210. ' Ex parte' Huxtalle, Re Oonibeer, 2 Ch. D. 54. 
 
 ^ Fx parte Bolland, Be Clint, L. R. i7Eq, 115; but see Ex parte Bishop, Be 
 Tonnies, L. K. 8 Ch. App, 718 ; Be Andreirs, 7 Ch. D. 635. 
 
 " See ante, p. 128. 
 
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CHAP, viii.] MARRIAGE SETTLEMENTS. 163 
 
 post-nuptial settlement by the husband may be upheld as against 
 his creditors by consideration moving from the wife or a third 
 party:' Will a post-nuptial settlement by the wife, not in pur- 
 suance of ante-nuptial articles, be held good as against her 
 creditors where no consideration moves either from her husband 
 or a stranger ? Probably not. 
 
 At this point it may be useful to discuss very shortly the Power of the 
 power of the Divorce Court to vary and alter marriage settlements P'™'^''^ ^°^'^ 
 
 -j««.p_ , o to vary 86ttlG- 
 
 on the dissolution oi the marriage. In the case of dissolution of ""^'s. 
 marriage, the court has had conferred upon it the right to vary of^mln-kge!"" 
 not only post-nuptial but ante-nuptial settlements, and to deal 
 with them in any way which may be thought just and expedient.^ 
 This power is conferred by 22 & 23 Vict. c. 61, s. 5.' Where once 
 the court has made an order varying the settlement, an applica- 
 tion to vary it further will not be entertaiaed," except in respect of 
 matters which existed before the order was made.° This section for- 
 merly could only be put in force where there were childen of the 
 marriage;" but by 41 Vict. c. 19, s. 3, the Divorce Court has 
 jurisdiction over marriage settlements where there are no children. 
 Post-nuptial deeds include deeds of separation.' This power can On decree of 
 be put in force by the court on a decree of nullity.^ The court ^ ''^' 
 has jurisdiction under 20 & 21 Vict. c. 85, s. 45, and 23 & 24 
 Vict. c. 144, 3. 6, before pronouncing a final decree for dissolu- 
 tion of marriage or judicial separation for adultery against a wife, 
 to direct an inquiry as to her property, so that it may be enabled 
 to order a settlement to be made of such property as soon as the 
 final decree is pronounced.' 
 
 In this matter the interests of the children (if any) are prin- interests of 
 cipaUy considered,'" and a settlement cannot be varied so as to sidered. 
 deprive a child of the marriage of an interest under it," and the 
 interest of other parties will also be safeguarded.'^ There is power 
 
 * Wheekr v. Caryl, Amb. 121 ; 2 Br., H. & W. 127 ; Mackintosh v. Pogose [1895], 
 I Ch. 505. 2 Per Jessel, M. R., in Oandy v. Oandy, 7 P. D. 168, 172. 
 
 ' "The court, after a final decree of nullity of marriage, or dissolution of marriage, 
 may inquire into the existence of ante-nuptial or post-nuptial settlements made 
 on the parties whose marriage is the subject of the decree, and may make such 
 orders with reference to the application of the whole or a portion of the property 
 settled either for the benefit of the children of the marriage, or of their respective 
 parents, as to the court shall seem fit." By the earlier statute, 20 & 21 Vict. u. 85, 
 s. 45, the court had power to deal with the wife's settled property where she was the 
 offending party ; this section was amended by 23 & 24 Vict. c. 144, s. 6. 
 
 * Benyon v. Benycm and 0' Callaghan, 15 P,D. 54. 
 ^ Gladstone v. Gladstone, i P .D. 442. 
 
 " Graham v. Graham, L. E. i P. & D. 711. 
 ' Worsley v. Worsley, L. R. i P. & D. 648. 
 8 A. (otherwise M.) v. M., 10 P. D. 178 ; Leeds v. Leeds, 57 L. T. 373. 
 
 * Midwinter v. Midwinter [i8g2], P. 28. 
 i» Pa^d V. Paul, L. K. 2 P. & D. 93. 
 
 " Orisp V. Crisp, L. E. 2 P. M. & D. 426. 
 ^ Umith V. Smith <£* Graves, 12 P. D. 102. 
 
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16^ HUSBAND AND WIFE. [paet i. 
 
 in the court where the husband is the guilty party to make pro- 
 vision for the custody, maintenance, and education of children 
 above the age of sixteen, that is, till they attain the age of twenty- 
 one.^ Where the wife is the guilty party she may be compelled 
 to make provision for her children for the whole of their lives 
 under section 45of20&2i Vict. c. 85, on the ground that at 
 Common Law she is under no liability to support them at all.^ 
 The court will also take precautions, as much as possible, to 
 prevent the innocent party from being damnified by the dissolu- 
 tion of the marriage f thus an innocent party will be relieved 
 from a covenant to appoint in favour of the guilty.'' Where the 
 innocent party has not brought anything into settlement, he or 
 she will, if possible, be allowed a sum for maintenance on the 
 dissolution of the marriage.* The court will not as a rule insert 
 a dum casta vixerii clause in its order." 
 Jurisdiction of The court has also jurisdiction under 23 & 24 Vict. c. 144, 
 powers of ap- s. 5 , to deal with powers of appointment, whether in ante-nuptial 
 pointmeut. qj, post-nuptial Settlements.' But there is a limitation to the 
 powers of the court in this respect ; and in a case where a mar- 
 riage settlement gave the wife on the death of the husband a 
 power of appointment in favour of a second husband and the 
 children of a second marriage, the court, on the dissolution of her 
 marriage through the misconduct of her husband, declined to 
 vary the settlement so as to enable her to exercise such power of 
 appointment as though he were dead.^ 
 Restitution of The like jurisdiction is given to the court under the Restitution 
 EigSts^Aot °^ Conjugal Rights Act, 1884," consequently, where a woman 
 1884. does not comply with a decree for restitution of conjugal rights 
 
 the court may in its discretion order a settlement out of her 
 property for the benefit of the husband.'" The court may take 
 into consideration the general conduct of the parties; but such 
 property must not be subject to a restraint upon anticipation." 
 On judicial ;B^t i^ a case of judicial separation there is no such power in the 
 
 separation, •■ ^ . '^ , 
 
 court has no court, and the settlement, ante-nuptial or post-nuptial, remains 
 
 power to vary 
 
 ^ TJiomassetv. TAomossei [1894], P. 295, ovenulmg Blmi<J/ordv. £landford[iSg2], 
 P. 148, and other cases. Thomasaet v. Thomasset was decided under 20 & 21 Vict, 
 c. 85, s. 35._ 
 
 ^ Midwinter v. Midwinter [1893], P. 93. This seems too ahsurd to he good law, 
 and see 45 & 46 Vict. o._ 75, s. 21 ; Tkomasset v. Thomasset {ubi sup.) puts the power 
 of the Court of Bivorce in this matter on the proper footing. 
 
 ^ Mavdslay v. Maudslay, 2 P. D. 256 ; Noel v. Noel, 10 P. D. 179. 
 
 * Benyon y. Benyon, i P. & D. 447. 
 
 '' March v. March, 36 L. J. P. M. & A. 65. 
 
 " Harrison v. Harrison, 12 P. D. 130. 
 
 7 Evered v. Evered, 43 L. J. P. M. & A. 86. 
 
 8 Pollard V. Pollard [1894], P. 172. " ^^ ^ .3 yiot. 0, 68, o. 3. 
 i» Swift V. Swift [_iZgi\ P. 129. 
 " Mlchell \. MicheU [1891], P. 208. 
 
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 Battlements. 
 
CHAP. viii.J MARRIAGE SETTLEMENTS. 165 
 
 binding,' though it has the power to order the payment of 
 alimony,- and a settlement of the wife's property, if she be in the 
 wrong;' but if the parties have agreed by a deed in the nature of 
 a settlement, one to pay and the other to accept a certain sum in 
 the nature of alimony, it is not in the power of the court on 
 a decree of judicial separation to alter or vary the terms of the 
 deed, though it may be of opinion that the amount agreed 
 between the parties is insufScient, and the parties remain bound 
 by their contract." 
 
 The court has power to entertain a petition for variation of 
 settlements, though the parties were domiciled in Scotland at the 
 time of the marriage, and the settlements were made in Scotch 
 form;'" but it has no power under 22 & 23 Vict. c. 61, s. 5, to 
 entertain, such a petition -except upon a decree absolute of dis- 
 solution or nullity pronounced by itself.^ 
 
 1 Gandy v. Gandxj, 7 P. D. 168. 
 
 2 20 & 21 Vict. o. 85, s. 17- 
 
 * See Midwinter.^. Midwinter [1892], P. 28. 
 
 * Qandy v,. Gandy, 7 P. D. 168. 
 
 5 Nunneley v. Kunneley, 15 P. D. 186 ; Forsyth v. Forsyth [1891], P. 363. 
 « Mome (f. c. Bull) y : BuU \i2,^il P. 279. 
 
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CHAPTEE IX. 
 
 PEESONAL EIGHTS OF THE SPOUSES CEEATEB 
 BY COVEETUEE. 
 
 PAGE 
 
 Husband Digniok Pbesona 166 
 
 Husband's Domicil Matrimonial Domicil . , . . 167 
 
 CovBETURB : Effect of 167 
 
 Common Law Eight of Husband to Control and Custody 
 
 OF Wifb 168 
 
 Limits to Right 169 
 
 Right of Husband to Habeas Corpus .... 170 
 
 Mutual Right of Cohabitation 170 
 
 Action foe Ceim. Con. Abolished 170 
 
 Enticing Away and Harbouring of Wife ... 171 
 
 Lord Campbell's Act 171 
 
 Right of Husband to Vindicate Wrong Done to Wipe . 172 
 
 Effect of M. W. P. Act, 1882 172 
 
 Relation of Married Woman to the Criminal Law : Co- 
 ercion OF Husband ^ . i73 
 
 Legal Settlement of Wife under the Poor Law . . 174 
 
 Relation op Married Woman to the Franchise . . 175 
 
 Summary • . . 176 
 
 This chapter regards the man and woman as husband and wife 
 after a valid ceremony of marriage has been completed between 
 them, and the effect of the marriage on their personal relations to 
 one another. At the outset it may be remarked that the status of 
 the woman is more aifected than that of her husband. Even in 
 modern times, when every sexual inequality is attempted to be 
 set aside and removed, this fact still holds good, and a woman on 
 her marriage, except in a few instances,^ is content in this country 
 Husband dig- to take her husband's name. It may, without lacking gallantry 
 towards women, be affirmed that nature has marked out the man 
 as being the dignior persona. He is stronger in intellect, force of 
 character, and physical strength ; he is better able to struggle 
 against the force of opposing circumstances, both in the winning 
 of food and the attacks of enemies, and so to govern and to rule. 
 
 ^ Widows of high rank, on maiTjing again men of infei-ior rank to their late 
 husbands, are by courtesy entitled to retain their names. 
 
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 nwr persona. 
 
CHAP. ix.J PERSONAL RIGHTS OF SPOUSES. 167 
 
 This physical and mental superiority has been recognized by the 
 laws of most countries, perhaps more readily because the male sex 
 has been the law-maker. Nature plainly dictates that it is the 
 duty of the husband to cherish and protect the wife, and that the 
 wife on her part should yield not only love and tenderness, but 
 «ven obedience. Thus, it has been said that the husband is clothed 
 with authority over his wife. " He is to practise tenderness and 
 affection, and obedience is her duty." ' 
 
 The happiness of parties and necessities of life compel personal Husband's 
 sacrifices and concessions from both parties, and hitherto the ^°j^™^''^^o^j®i 
 greater sacrifice of personal independence has come from the wife, domicii. 
 Accordingly, the husband has the choice of the matrimonial 
 domicil : the wife's domicil is and continues to be the same as 
 her husband's, and changes with his throughout their married 
 life.^ But the change must be carried out with an honest pur- 
 pose, and with no intention of obtaining increased rights over her 
 property, nor must be such as would visit her with unnecessary 
 hardships, or be likely to imperil her life or liberty. The wife, it Wife cannot' 
 would seem, cannot acquire a separate domicil from her husband, ra?e"domfdi. 
 though she live apart from him, or has separated from him judici- 
 ally ; ' or privately because of his gross misconduct ; ■* and she cer- 
 tainly cannot, where she elects merely to live apart from him ; 
 but it seems she may acquire a separate qicasi-domicil from him 
 in order to institute divorce proceedings, and that by a residence 
 short of actual domicil,^ also if she is deserted by him.'^ 
 
 By the theory of the common law of England husband and wife Unity of the 
 •' "' . , • ■, • spouses. 
 
 are one person — vir et uxor sunt qitasi iinita persona, quia caro 
 
 una et sanguis unusJ This theory was never carried out to its 
 
 fullest extent ; ^ it was the individuality of the wife that was in Covertui-e. 
 
 part suspended during the existence of the marriage tie. While 
 
 that lasts she is under the coverture or protection of her laron or 
 
 husband ; in legal language, she is femina co-operta or feme covert? 
 
 Coverture created the disabilities at common law, and husband 
 
 1 Per Lord Stowell, in Oliver v. Oliver, i Hag. Con. Eep. 361, 363. _^ ^ __ „ ^, 
 
 2 Warrender v. Warrender, 2 CI. & F. 488 ; Dolphin v. Bobins, 29 L. J. P. & M. 
 II ; Be Daly's Settlement, 27 L. J. Ch. 751 ; 33 & 34 Vict., c. 14, s. 10 (Naturalisa- 
 tion Act, 1870). 
 
 3 Dolphin V. Sohins {ubi sup^ ; Le Sueur v. Le Sueur, I P. U. 139. 
 * Yeherton v. Yelverton, 39 L. J. P. JM. & A. 34. 
 
 2 Deck V. Deck, 29 L. J. P. M. & A. 129 ; Niboijet v. Niboyet, 4 P. D. i ; revers- 
 ing 3 P. D. 52 ; Santo Teodoro y. Santo Teodoro, 5 P. D. 79. 
 ^ Le Sueitr v. Le Suewr {ubi sup.). 
 ' Bracton, lib. Sfol., 416, Co. Litt., 8. 291. . ,^ i „ .. o-j 
 
 8 See the first resolution of the majority of the .judges in Manhy v. Scott, I ow- 109, 
 to the effect that "marriage does not give the wife any innate and uncontrollable 
 power to render the husband liable" on contracts entered into by her, which it would 
 give her if the doctrine of the unitas personarum were earned to its logical and turthoBt 
 conclusion. 
 
 9 I Bl. Com. 442. 
 
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168 HUSBAND AND WIFE. [part i. 
 
 and wife could neither contract with nor make gifts to on& 
 another, ostensibly because the wife had no separate existence, 
 but in reality because the husband on marriage took, jure 
 mariti, all his wife's personal property, and consequently she could 
 neither give him, nor contract to give him what was already hi& 
 own.^ But in equity her separate existence in respect of her- 
 separate estate was recognised, with respect to which she waa 
 competent to contract not only with strangers but her own hus- 
 band.^ The effect of the Married Women's Property Act, 1882, 
 is to enlarge the separate existence of the wife so far as her pro- 
 prietary rights are involved ; but this alteration in the status of 
 the wife would seem to be confined to her rights over property as 
 between herself and her husband ; but notwithstanding this Act, 
 this merger is still recognized, especially as regards the relations 
 of third persons with the spouses.^ Husband and wife cannot sue 
 each other for tort ; " and publication of a libel by a husband to 
 his wife is no legal and sufScient publication.* 
 
 As regards their personal existence it is not true, in a literal 
 sense, to say that a man 4nd wife became one person in the eye 
 of the law, and their separate existei],ce was recognized in many 
 ways ; thus, sending a communication libelling the husband to 
 the wife was held to be a sufficient publication of the libel ; ^- so 
 also, where the wife had an adverse interest to her husband, as, 
 for instance, where she petitioned for a divorce, she might have 
 made a binding agreement with him, notwithstanding coverture/ 
 She may exhibit articles of the peace against him if he illtreats 
 her, and she has a reasonable fear of his violence.^ 
 Common Law By the law of England as laid down by more modern authorities 
 husband to ^ husband is entitled to a limited control and custody of his wife's. 
 
 control and i ^g regards the wife's real estate, her separate existence was clearly recognised by 
 
 *"fa ^^^ Common Law. Land with its feudal incidents was all in all in earlier times, and 
 
 personal property scarcely existed ; consequently the wife's interest in the really 
 valuable property which she brought to her husband was safeguarded. 
 
 ^ HevAson v. Negus, i6 Beav. 594 ; Vansittart v. Vansittart, 4 K. k 3. 62; 
 Woodward v. Woodward, 3 De G. J. & S. 672. 
 
 ^ See Butkr v. Butler, 14 Q. B. D. 835 ; Be Jupp, Jupp v. Buchwell, 39 Ch.D. 
 148. 
 
 '' Phillips V. Ba/rnet, i Q. B. D. 436. 
 
 •'• Wennhah v. Morgan, 20 Q. B. D. 635. 
 
 s Wenman v. Ash, 13 C. B. 836. The distinction between this case and thatcf 
 Wennhak v. Morgan (ubi sup.) is that in the latter the husband was the defendant, 
 who was alleged to have published a libel by disclosing it to his wife, whereas in the 
 former the statement defamatory of her husband was communicated to the wife by the 
 defendant who was a stranger, and Maule, J., said : " In the eye of the law, no doubt,, 
 man and wife are for many purposes one ; but that is a strong figurative expreasioQ 
 and cannot be so dealt with as that all the consequences must follow which would result 
 from its being literally true. For many purposes they are essentially distinct and 
 different persons, and amongst others, for the purpose of having the honour and 
 feelings of the husband assailed and injured by acts done or communications made to 
 the wife." , ■ 
 
 ' Bateman v. The Countess of Moss, i Uow, 235. 
 
 * Shepherd v. Maekoul, 3 Camp. 326 ; Turner v. Boohes, 10 A. & E. 47. 
 
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 wife. 
 
CHAP. IX.] PERSONAL RIGHTS OF SPOUSES. 
 
 169 
 
 person ; but he cannot be convicted of a rape upon her,' nor of 
 an assault upon her if he infects her with a venereal disease.^ It 
 was formerly laid down that " the husband hath by law power 
 and dominion over his wife, and may keep her by force within 
 the bounds of duty ; and may beat her, but not in a violent or 
 cruel manner."' The latter part of this proposition, if ever, Limits to right, 
 strictly speaking, it was the law of this country, is long since 
 exploded ; and if a husband were thus to attempt to correct his 
 wife, he would render himself liable to criminal proceedings; 
 though it is true she cannot bring an action against her husband 
 for damages for assault during the period of coverture ; " and the 
 husband is also disentitled to bring a similar action against his 
 wife." How far the first part of the above proposition, viz., that 
 a "husband hath by law power and dominion over his wife, and 
 may keep her by force within the bounds of duty," in other words, 
 the right of the husband to the control and custody of his wife's 
 person, is true, will be briefly discussed. Any right of custody 
 lasts only till he has been guilty of cruelty towards her, or separ- 
 ation has taken place between them ; and it is quite clear that 
 any restraint he may put upon her must not tend to endanger her 
 health or life, or render the cohabitation unsafe, for such conduct 
 might be regarded as amounting to scevitia or cruelty, entitling 
 her to a judicial separation." 
 
 His custody and control were never permitted to amount to 
 imprisonment, though they might amount to confinement ; '^ though 
 the distinction between the two forms of detention seems now too 
 fine for practical working; and at the present time any distinction 
 must be taken to be abolished.' A husband may now detain his 
 wife within the walls of the matrimonial domicil only when appre- 
 hensive of her doing some injury to his property or his honour.' If bw-^- JaOcson. 
 the wife is unwilling to live with her hiisband she may live apart 
 from him, and he cannot now compel her either bj decree of restitu- 
 tion of conjugal rights,'" or by writ of habeas corpus, to resume 
 
 ' I Hale, 629 ; but he may be convicted of criminally aiding and abetting a rape 
 upon her, Lm-d Avdley's Case, 3 St. Tr. 401. It was formerly doubtful whether a man 
 who had connection with a married woman by personating her husband was guilty of 
 rape ; but by section 4 of the Criminal Law Amendment Act, 1885 (48 & 49 Vict. 
 c. 69), a man who personates a husband and has connection with a married woman, 
 commits a rape upon her. 
 
 ^ Beg. V. Clarence, 22 Q. B. D. 23. 
 
 » Bacon's Abr., B. & F. (B.) 
 
 * Philhps V. Barnet {uhlsup.). 
 ' Ibid. 
 
 ^ See Be Cochrane, 8 Dowl. P. C. 630. 
 
 ' Atwood V. Atwood, Ch. Free. 492 ; Lord Leigh's Case, 3 Keb. 433. 
 8 Beg. V. Jackson [1891], i Q. B. 671 ; Bex v. Mead, 1 Burr. 542 ; Beg. v. Leggatt, 
 18 Q. B. 781 ; Be Cochrane, {ubi sup.). 
 
 * See Beg. v. Jaclcson {ubi sup.). 
 
 i» Matrimonial Causes Act, 1884 (47 & 48 Vict. c. 68). 
 
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170 
 
 HUSBAISTD AND WIFE. 
 
 [PAET I. 
 
 Eight of 
 husband to 
 writ of hab, 
 Corp. 
 Elxoeptions. 
 
 Mutual right 
 of cohabita- 
 tion. 
 
 Action for 
 crim. con, 
 abolished. 
 
 cohabitation. The husband is only entitled to his writ of haleas 
 corpus when his wife is improperly detained out of his custody 
 against her will, but not where he has abandoned his marital 
 right by executing a separation deed ; ' and if the deed be informal, 
 he cannot justifiably enter the house of a third party to reclaim 
 her as improperly harboured there, without having given notice of 
 his revocation of the licence to live apart.^ If the husband treat 
 his wife ill, he will not entitled to his habeas corpus,^ or where his 
 wife is living apart from him under no restraint.'' The wife, on 
 the contrary, may have her writ if she be improperly restrained, 
 as where she is confined to his house after a deed of separation 
 has been executed between them ; ' or where he has violently 
 taken possession of her body, and keeps her detained against hei' 
 will.° Any ante-nuptial arrangement which would have the force 
 of infi-inging the husband's rights to this control and custody can 
 be set aside by him, and will not be enforced by the courts. 
 
 Husband and wife are mutually entitled to each other's society, 
 in other words, to live together and cohabit as man and wife; 
 for this right is the foundation of the married state. The 
 cohabitation of man and wife is demanded by nature not only for 
 the engendering, but also for the protection and nurture of tie 
 offspring. Withdrawal from cohabitation merely on the ground 
 of incompatibility of temper can scarcely ever be justified,' and 
 it is only by reason of some serious breach of duty towards one 
 another that the spouses can properly live apart; and such breach 
 is usually one that is nowadays cognoscible by the Divorce Court, 
 whether entitling the injured party to a dissolution of marriage 
 or a judicial separation. The spouses are entitled to protect 
 each other's life and security, for they have a clear interest in 
 each other's safety and comfort ; and a husband or a wife may 
 justify for killing in the moment of danger one who was threat- 
 ening the life of the other ; and it is the same with regard to a 
 battery. A husband who is deprived of the society or comortivm 
 of his wife may maintain an action based upon its loss.' 
 
 Adultery committed with his wife was a wrong done to the 
 husband which formerly entitled him to maintain an action for 
 crim. con. against the adulterer for the purpose of obtaining 
 damages ; but the Divorce Act of 1857° abolished that right of 
 
 ^ Amie Gregory''s Case (Sex v. Brooke, 4 Burr. 1991). 
 
 2 Lewis V. Ponsford, 8 C. & P. 687. ^ Bex v. Brooke, 4 Burr. 1991. 
 
 * Ji!x parte Sandilands, 21 L. J. Q. B. 342. 
 
 '' Hex V. Listor, i Stra. 478 ; see also Lord Vane's Case, 8 East 171 n. 
 
 ° Beg. V. Jackson [1891], i Q. B. 671. 
 
 ' Yeatman v. Yeatman, L. E. i P. & D. 489. 
 
 ^ 3 Bl. Com. 140. The claim for loss of society must be limited to the life of the 
 wife, and no further damages can be recovered for the fact that she has died in conse- 
 quence of the tort. Baker v. Bolton, i Camp. 493. '^ 20 & 21 Vict. c. 85, b. 59. 
 
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CHAP. IX.] PERSONAL RIGHTS OF SPOUSES. 171 
 
 action, though by another section ' it practically restored it, for 
 it provides that " any husband may, either in a petition for disso- 
 lution of marriage or for judicial separation, or in a petition 
 limited to such object only, claim damages from any person on 
 the ground of his having committed adultery with the wife of 
 such petitioner ; " ^ the chief difference between the old and 
 present practice being that the injured husband has no longer 
 compulsory recourse to the common law courts to redress his 
 injury by pecuniary damages against the adulterer, but can recover 
 them in the same court as that which gives him the further relief 
 of dissolution of marriage or judicial separation. 
 
 The enticing away and harbouring of his wife is an injury to Enticing away 
 the husband which renders the offending person liable to an of' wife. ""^""^ 
 action,' for the husband may recover her out of the possession of 
 any person who is harbouring her, unless the husband has by 
 his cruelty or misconduct forfeited his marital rights, or turned 
 her out of doors, or by some insult or ill-treatment compelled 
 her to leave him,^ or she elects to live apart from him.* The 
 parents of the wife have no more right to entice away and 
 harbour her than a complete stranger, though where the husband 
 is to blame, less misconduct on his part would justify a parent in 
 receiving back a daughter than would justify a stranger. In the 
 United States it has been held that an action for enticing away a 
 husband does not lie at the suit of a wife.^ 
 
 The Married Women's Property Act, 1882, has not in its Lord Camp- 
 effect so severed the interests of husband and wife as to effect a 
 repeal of Lord Campbell's Act ; ' consequently, either husband or 
 wife may bring an action against a wrongdoer by whose negli- 
 gence the death of the one has been caused, provided that it is 
 brought within a year from the death, and the survivor can prove 
 that pecuniary loss or damage has resulted from, or a reasonable 
 expectation of pecuniary advantage has been defeated by, the 
 death of the injured party.* Sentimental damages,' or funeral 
 or mourning expenses,'" cannot be recovered. This remedy was 
 given because at common law the death of a person cannot be 
 
 ^ Sect. 33. 
 
 2 Bikker t. BikJcer and WJdtewood, 67 L. T. 721. In this case it was held that 
 the measure of damages is not the means of the co-respondent but the injury to the 
 petitioner. 
 
 ' Winsmore v. Oreenhanh, Willes, 577. 
 
 * Philp V. Squire, i Peake, 114; Bertlion v. Cartwright, 2 Esp. 480. 
 = Beg. V. Jackson [1891], 1 Q. B. 671. 
 
 * Van Arnam v. Ayere, 67 Barb. 544. 
 ' 9 & 10 Vict. u. 93, ss. 1,2. 
 
 8 9 & 10 Vict, c. 93, ss. I, 2 ; Lord Campbell's Act. When there is no reasonable 
 prospect of benefit accruing, see Harrison, v. London & Nortli- Western Bailway Co., 
 I Cab. & El. 540. 
 
 s Blake v. The Midland Bailway Co., 21 L. J. Q. B. 233. 
 " Dalton V. South-Eastern Bailway Co., 27 L. J. C. P. 227. 
 
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172 HUSBAND AND WIFE. ' [paet i. 
 
 made the subject of an action for damages.' But this right is 
 not one which either spouse can under all circumstances enforce 
 as by bringing actions against third persons for interrupting their 
 cohabitation ; thus, if a husband engaged in a risky occupation 
 contract with his employer that he will not sue him for compen* 
 sation for any injury arising out of his employment, and a fatal 
 injury happens to the employed, which would render the employer 
 legally liable, the contract of the husband is good, and disentitles 
 his widow to her statutory relief.^ The benefit of the Act is also 
 
 Exceptions, lost to her by her adultery.^ Husband and wife cannot at all 
 times insist upon this right of cohabitation as against each 
 other ; thus, the wife is not compelled to be with her husband 
 during his imprisonment or banishment ;* or if he propose to 
 take her where serious risks to her life would ensue. If tlie 
 husband or wife wilfully abstain from each other's society, and 
 refuse to cohabit, such conduct may be the ground of judicial sepa- 
 ration ; but mere temporary absence, whether for the purposes of 
 trade or in the public service, is not inconsistent with this right 
 of cohabitation. 
 
 Former rig;iit Formerly a husband had an indefeasible interest in the personal 
 
 of husband to j. j. j x i. • •!• i. j.i 4. i 
 
 vindicate wrongs or torts done to his wiie, whether as to her person, e.g., 
 ^fe°^^h°ther° '^'^^^ery. Or to her chai'acter and reputation, e.g., libel or slander, 
 ante-nuptial or If they were wrongs done to her iefore marriage, he might join 
 with his wife in an action for their redress, and whatever damages 
 might be recovered belonged to him.* Where the wrongs were 
 done during marriage, he must have joined with her in the action, 
 for the wrong done to his wife was a wrong done to himself," and 
 he also recovered for himself whatever damages might have been 
 
 post-nuptial. 
 
 woman can 
 maintain so 
 action for tort. 
 
 Married But now, Under the Married Women's Property Act, 1882, 
 
 woman can ... ^ t \ • i 
 
 maintain sole a married woman can sue alone, as though she were a smgle 
 woman, for torts done to herself, and her husband need not be 
 joined in the action, and damages recovered by her become her 
 
 1 Osborn v. Cfilleit, L. R. 8 Ex. 88. See post, Part II., Parent and Child, chap. v. 
 
 f Griffiths V. Earl of Dudley, g Q. B. D. 357. What would be the effect ot a 
 similar contract made by a married woman earning wages, it would be rash to state 
 without reservation ; but probably she would be held capable of making such a binding 
 contract, and ousting the interests of her husband, especially if the circumstances of 
 her employment warranted s\ich contracts. 
 
 ' Stimpson v. Wood, 57 L. J. Q. B. 484. 
 
 * Co. Litt. 133. 
 
 ' Daltonv. Midland Counties Railway Co., 22 L. J. C. P. 177. This right to sne 
 on the part of the husband was a chose in action, and if the husband died before suit, 
 the right survived to the widow. 
 
 ^ Newton v. Batten, 2 Ld. Raym. 1208. 
 
 '' The right of the husband to sue in this case was also a chose in action, and if the 
 wife died during suit, the right survived to her administrator, who probably was her 
 husband. In such actions, if the husband wislied to recover special damages for the 
 injury to his wile, he did not declare on the joint' tort, but for the loss oi his wifes 
 society. Dengate v. Gardiner, 4 M. & W. 5. 
 
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CHAP. IX.] PERSONAL RIGHTS OF SPOUSES. 173 
 
 separate property/ and whether the cause of action arose before 
 or after the Act.^ Spoken words imputing to her unchastity or 
 adultery do not require special damage to be proved to make them 
 actionable.' In a case where the tort to the wife arises out of a 
 breach of contract with the husband (as in Zongmeid v. Holliday*) 
 it is suggested that equally now as before the change of the law, 
 the joinder of the husband would be necessary in order to ensure 
 success, for there is no misfeasance towards her independently of 
 the contract with her husband.* 
 
 Generally speaking, a married woman is just as amenable to Relation of 
 the criminal law as regards her crimes and delinquencies as a man ^omln^o the 
 or a single woman ; but she is excused from liability in respect of 0^™'°*! law. 
 certain crimes when it is proved that she has been acting under wom"n'\iot 
 the compulsion or coercion of her husband, on the ground that ''^''^®'°'^'®^^°'" 
 her acts have not been those of a free agent. When her husband mitted under 
 is not present she will not be presumed to have acted under his husband. 
 coercion, even though he may be proved to have procured her to 
 commit the offence." The coercion must be active, for if the 
 husband be incapable of coercing her, the presumption will not 
 arise in her favour. Thus, if the husband were a cripple and 
 confined to his bed, his presence at the committal of the offence 
 would not be sufficient to exonerate the wife.'' The coercion of 
 the husband must be proved by his presence at the commission of 
 the offence.* She is also fully responsible for crimes which she has 
 committed alone, and which she has voluntarily committed,' or 
 which she is proved to have incited or procured her husband to com- 
 mit, that is, she may be an accessory before the fact; '" and there are 
 certain more serious offences, such as murder and treason," to the Privilege does 
 
 Pi.Tii .1 . /.I 11 1 j: not extend to 
 
 commission of which by her the coercion or her husband lorms tj^e more seri- 
 no defence. It is in the less heinous offences only that she can °^^^ offences. 
 successfully set up this -plea. This plea may also be set up in the 
 
 1 45 & 46 Vict. c. 75, H. I, Bub-s. 2. For example, a married woman travelling on 
 a railway meets with an accident resulting from the negligence of the company ; she 
 sues the company and recovers ;^5oo. Under this section that sum becomes her 
 " separate property. " 
 
 2 Weldon v . Winslow, 13 Q. B. D. 784. This was an action for assault and libel, 
 in which the Act of 1882 was held retrospective as to procedure. 
 
 3 54 & 55 Vict., c. 51. But no more costs can be recovered under the Act than 
 damages, unless the judge certifies there was a reasonable ground for bringing the 
 action. 
 
 * 6 Exch. 761, ,. ,^ . ,,r 
 
 = Unless the case would fall within the principle of Longridge v. Levy, 4 M. & W. 
 337, in which an allegation of fraud was sustained. In the United States, under such 
 circumstances, the husband alone need sue. Biah. Laws M. W. sub-s. 275. 
 
 ^ Bex V. Morris, Euss. & Ry. 270. 
 
 ' Beg. V. Pollard et uxor, cited Beg. v. Crme, 2 Moo. C. C. E. 53 . 
 
 8 Bex V. Morris, Russ. & Ey. 270. 
 
 9 4 Bl. Com. 29. 
 
 w I Hale, 516 ; 2 Hawk. P. C. c. 29, s. 24. . -n rr 
 
 " Eobbery has been also included, but with doubtful authority ; see Beg. v. lorpey, 
 12 Cox, C. C. 45. 
 
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174 
 
 HUSBAND AND WIFE. 
 
 [PAKT I. 
 
 offence of uttering counterfeit coin.' But in the inferior misde- 
 meanours the wife may be jointly indicted with her husband, as, 
 for instance, for an assault,^ and for keeping a brothel,' on the 
 principle that it is an offence as to the government of the house, 
 in which the wife has a principal share ; and also such an offence 
 as may generally be presumed to be managed by the intrigues of 
 the sex. In one case where a married woman was indicted for 
 falsely swearing herself to be next of kin and procuring adminis- 
 tration, she was held guilty, though her husband was with her 
 when she took the oath.^ Where a wife receives stolen property, 
 it is necessary to show that she took an active part in the receipt, 
 and if she only intended to conceal her husband's guilt, and to 
 screen him from the consequences, it is different ; so if she har- 
 bours her husband, or endeavours to conceal that which may lead 
 to his apprehension, she ought to be acquitted.^ A married woman 
 may be accessory after the fact to a felony committed by her 
 husband, if she actively ejigage in the crime ; but if she only 
 receives, comforts, or relieves, him, knowing him to have com- 
 mitted a felony, she will not thereby become an accessory after 
 the fact.* 
 
 This protection is based upon presumption only, and may be 
 rebutted by evidence to show that she has been acting volun- 
 tarily, and even taking the more active share in the offence,' or 
 by proving that the husband was a cripple and in bed at the time 
 of the offence.* The mere fact of his commanding her to commit 
 the crime would be no excuse for her obeying his voice, and break- 
 ing the law.^ This defence does not cast upon the woman the 
 burden of strict proof that she was the wife of the male prisoner," 
 and in one case, where the man and the woman were proved to 
 have lived together for several months, and to have a child with 
 them which was said to be theirs, the woman was acquitted on the 
 ground of coverture " A wife is not responsible for her husband's 
 breach of duty.'^ 
 
 A wife can now be found guilty of larceny from her husband, 
 if she take his property when leaving or about to leave him.'' 
 
 The legal settlement of a wife is the last legal settlement of 
 
 under Thrpcor; her husband, for his settlement is her settlement ; but if he has 
 
 no settlement, then upon his death her settlement before marriage 
 
 Presumption 
 of coercion 
 rebuttable. 
 
 Legal settle- 
 ment of wife 
 
 laws. 
 
 1 Steph. Dig. Or. L. i8. ^ ^g^_ ^_ q.^^^ ^ jjoo. c. C. E. 53. 
 
 '^ I Hawk. c. I, s. 12. ^ Hex t. Dicks, cited l Eusa. Cr. 141. 
 
 ^ See Beg. v. M'Olarens, 3 Cox, C. C. 425. 
 
 " Steph. Dig. Cr. L. 27. ? Seg. v. Smith, i D. & B. 553. 
 
 8 Per Tindal, C. J., in Beg. v. Crvse, 8 C. & P. 541. 
 
 » Ibid. 10 Beg. v. M'Ginnes, 11 Cox, C. C. 391. 
 
 1^ Beg. V. Torpey [ubi sup.). i^ Bex v. Squire, cited i Euss. Cr. 144. 
 
 ^2 45 & 46 Vict,, c. 75, B. 12. For further details, see^osi, chap, xii. p. 246. 
 
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CHAP. IX.J PERSONAL RIGHTS OF SPOUSES. 175 
 
 revives. Thus, a wife who is made a widow by the death of her 
 husband who has acquired a settlement during his life, retains her 
 husband's settlement until she acquires one for herself, and is not 
 disqualified from so retaining it by the effect of s. 3 5 of the 
 Divided Parishes Act, 1 876,^ for the status acquired by the woman 
 in marriage does not terminate at the death of the husband.^ 
 In cases where a husband has deserted his wife, or gone abroad 
 and the place of his settlement is unknown, she will be remov- 
 able to the place of her own settlement. Widows are not status of irre- 
 removable for twelve months after the death of their husbands ^°^^ ^'^' 
 if they remain unmarried ; ^ and where a wife is deserted by her 
 husband, and then lives for three years in such a manner as 
 would, if she were a widow, render her exempt from removal, she 
 shall be so exempt unless her husband return.* Gross misconduct 
 which would entitle the husband to live apart from her does not 
 confer this right upon her." 
 
 For many years a single woman has been able to exercise the Eeiation of 
 privilege of voting at a municipal or school board election, but ™oman to the 
 whether single or married a woman cannot exercise the parlia- iranohise. 
 mentary franchise either in a borough, ° or in a county.'' Up to 
 quite recently, when a woman married her right of voting at a 
 municipal election was taken away, at any rate during the period 
 of coverture ; for marriage at common law was a total disqualifi- 
 cation, and a married woman, therefore, could not vote, her 
 existence for that purpose being merged in that of her husband.' 
 But by the Local Government Act, 1893,' which extended 
 (inter alia) the principles of municipal government to the rural 
 districts, a woman for the purposes of that Act is not disqualified 
 by marriage for being on any local government register of electors, 
 or for being an elector of any local authority, provided that she and 
 her husband shall not be qualified in respect of the same property.'" 
 She is now entitled to vote for the election of both parish and 
 district councillors, and the case of Beg. v. Harrald is no longer 
 law. It would seem that she is entitled to vote as occupier only 
 
 ^ 39 & 40 Vict., C. 61. ,. , y, , T7 ■ J 
 
 2 Guardians of the Beigate Union v. Guardians of the Croydon Union and 
 Guardians of the Medway Union v. Guardians of the Bedminster Union, 14 App. 
 Cas. 465. 
 
 ^ 9 & 10 Vict. C. 66, B. 2. „ „ . . . T J Ttr 
 
 ^ 24 & 25 Vict. c. 55, s. 3. Barrett-Lennard, The Position m Law of Women, 
 
 ^^'^%e<ty. CooJcham Union, 9 Q. B. D. 522. Bat see Beg. v. Maidstone Union, 
 5 Q. B. b. 31. 
 
 8 Chorlton v. Lings, L. E. 4 C. P. 374. 
 
 '' Charlton v. Kissler,Jj. E. 4 C. P. 397. 
 
 8 Beg. V. Earrald, L. R. 7 Q. B. 361. 
 
 ' 56 & 57 Vict. c. 73. 
 M Sect. 43. 
 
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176 HUSBAND AND WIFE. [parti. 
 
 and not as owner of property ; a married woman cannot, therefore 
 be what is termed an " out-voter." She is not only entitled to 
 vote, but may herself be elected to the post of parish or district 
 Councillor, and may even be chairman of a district council. If she 
 is rated as owner of property, she may be sent to prison for non- 
 payment of rates. ^ 
 Summary. To Conclude the chapter, it is enough to say that in earlier 
 
 oA™Taw'*** times the identity of husband and wife was more complete, and 
 compared with tlie wife's separate existence less fully recognized than at the 
 present day. The husband had more power over the person of his 
 wife, as well as over her property, in which, if pure personalty, he 
 acquired an absolute interest ; as a compensation, he was under 
 more and she under fewer liabilities than now. Their unity of 
 person was recognized in a mutual inability to give evidence fofor 
 against each other, and to make contracts and gifts between them- 
 selves. Equity in time stepped in, and by degrees made serious 
 inroads into the doctrines which once prevailed, as will be seen in 
 the succeeding pages ; and legislation, marching with modern 
 ideas, has lately (whether for her good or ill) put the wife, in 
 respect of the acquisition and disposition of her property, almost 
 on a level with her unmarried sisters or her husband, thus severing 
 the present from the past. The present state of the spouses is not 
 one of partnership, for partners hold the firm property in common, 
 but that of tw;o persons whose legal status is one' and the same, 
 but whose property is held independently of each other. The 
 No law law that was once peculiar to the relation of husband and wife as 
 
 property-rela- I'sg^rds each Other's property now no longer exists, at least during 
 tions of hu9- tJie coverture ; and the ordinary principles of law that sfovern 
 
 band and wife. ^'..^ ,. ., , 
 
 property and the incidents of property apply with scarcely an 
 exception to that held by the married couple. Husband can con- 
 tract with wife, and wife with husband, and both with strangers, 
 unaffected by any legal theories, or by more substantial dis- 
 abilities. The husband has no particular interest based on cover- 
 ture in the property of his wife. He holds his own property as 
 in former times, and she now holds hers unaffected by any rights 
 Incidence of on his part. But for all that, it cannot be said that the incidence 
 burdens°stm of the matrimonial Jjurdens falls equally. There is nothing that 
 unequal. renders a husband less liable to the support of his wife and 
 
 children than formerly ; and she has practically no less authority 
 to pledge his credit for necessaries than before. It is true that 
 she is liable for the support of her husband and children, and 
 grandchildren, if she have the means, but only when he is disabled 
 
 ' Me Allen [1894], 2 Q. B. 924. 
 
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GHAP. ix.J PERSONAL EIGHTS OP SPOUSES. 177 
 
 from doing so, or has deserted her. If a man of slender means 
 marries a rich woman, she is in no way bound (unless by the 
 provisions of a settlement) to furnish of her riches anything 
 towards the expenses of the household, but he must support her 
 and their children. The answer to this may be that he need not 
 have married her, but there are more considerations in a marriage 
 than the pecuniary prospects of the parties. 
 
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CHAPTER X. 
 
 PROPRIETARY RIGHTS OF THE SPOUSES CREATED 
 BY COVERTURE. 
 
 PAGE 
 
 intboductosy 1 79 
 
 Real Peopeety : 
 
 INTEEEST OP HtJSBAND IN HIS OwN l8o 
 
 Interest of Husband in his Wife's Feeeholds : 
 
 CUKTESY i8i 
 
 MOETGAGfBS AND LEASES 182 
 
 INTEEBST OF HUSBAND IN HIS WIFE'S COPYHOLDS. . 183 
 
 iNTEEEST OF HuSBAND MODIFIED BY M. W. P. ACTS, 1870 
 
 AND 1882 : 184 
 
 Leaseholds oe Chattels Real : 
 
 Interest of Husband in his Own 184 
 
 Interest op Husband in his Wife's . . . . 184 
 
 Eppbot op M. W. p. Act, 1870 185 
 
 Eppect op M. W. p. Act, 1882 185 
 
 Interest of Wipe in Husband's Realty ... 186 
 
 Interest op Wife in her own Realty. ... 186 
 
 Effect op M. W. P. Act, 1870 186 
 
 Effect of M. W. P. Act, 1882 186 
 
 Gifts to Husband and Wife in Joint Tenancies : Effect 
 
 op M. W. p. Act 1882 187 
 
 Gifts to Husband and Wife and a Stranger . . 187 
 Marriage per se not a Severance of the Tenancy. 188 
 Wife's Power op Disposition over Legal Estate : Ac- 
 knowledgments 189 
 
 Husband's Concurrence 189 
 
 When Dispensed with 190 
 
 Separate Examination not Necessary under M. W. 
 
 P. Act, 1882 192 
 
 Mortgages by Married Women 193 
 
 Equity op Redemption 193 
 
 Equity op Exoneration 194 
 
 Leases by Married Women 194 
 
 Interest of Wipe in her Chattels Real ... 196 
 
 Personal Property : 
 
 Interest op Husband in his own 196 
 
 Interest op Husband in his Wife's Specific 
 
 Chattels 196 
 
 CiiosBS IN Reversion : 
 
 Undee M. W. p. Act, 1870 197 
 
 Undee M. W. p. Act, 1882 197 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 
 
 179 
 
 AGE 
 
 198 
 199 
 200 
 201 
 201 
 201 
 
 201 
 202 
 202 
 203 
 203 
 204 
 204 
 205 
 
 205 
 
 206 
 207 
 208 
 
 Chosbs in Action : Interest of Husband in 
 Under M. W. P. Act, 1882 
 Beduction into Possession : What is Sufficient 
 
 What is Insufficient 
 
 When Letters of Administration Necessary 
 Assignment : Malins' Act, 1S57 
 Interest op Wife in Husband's Personal Property 
 Interest op Wipe in her own Personal Property 
 
 Specific Chattels 
 
 Earnings under M. W. P. Acts, 1870 and 1882 '. 
 Savings under M. W. P. acts, 1870 and 1882 
 Damages ... 
 Interest of Wipe in her Choses in Reversion 
 Assignment of her Choses in Reversion . 
 Under Malins' Act 1857 . . 
 
 Effect op M. W. P. Act 1882 
 
 Interest of Wife in her Choses in Action : Reduction 
 into Possession Before and After M. W. P Act 
 
 1882 
 
 Deposit in Wipe's Name Prima Facie Separate Pro- 
 perty 
 
 Wife's Equity to a Settlement 
 
 In Whose Favour Enforced : Children 
 
 To WHAT Property it Attaches 209 
 
 Question as Between Wife and Husband and 
 
 Others 211 
 
 The Amount to be Settled . . ... 211 
 
 Waiver and Release by Wipe 212 
 
 When the Equity may be Defeated . . . . 213 
 
 TiTE scope of this chapter is the interest of the spouses in their introtiuotory. 
 own and each other's property as affected by coverture. The 
 chapter will be broadly divided into two sections : the first deal- 
 ing with real property, including chattels real ; and the second 
 with personal property. 
 
 Marriage at Common Law operated as an absolute conveyance Marriage a 
 of the wife's personal property to the husband, and to give him conveyance of 
 an interest in her realty for his and her joint lives, or if entitled ^^'^^^^1°^^^ 
 as tenant by the curtesy, an interest for his life. Now when the husband. 
 condition of life in earlier times is closely considered socially and 
 economically, this conveyance of the wife's property to the hus- 
 band will not seem such an injustice or hardship as it may appear 
 on a superficial observation. In those days personal property 
 scarcely existed, and if it scarcely existed among men, still less 
 did it exist among women. It may be taken as true that a 
 woman on her marriage very seldom brought any personal pro- 
 perty to her husband except her raiment, a few jewels, and such 
 presents as her relatives and friends might have made her. Upon 
 her husband fell the duty of supporting her and the family he 
 had by her ; to the matrimonial expenses she contributed nothing. 
 He was liable for her debts, and in damages for any torts or 
 
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180 HUSBAND AND WIFE. [part i. 
 
 wrongs committed by her. If, therefore, the wife brought to the 
 marriage, or during coverture acquired a small portion of per- 
 sonal property, it seemed almost natural that the husband should 
 in return for his liability take it as a sort of indemnity. In 
 other matters, too, she was thoroughly subordinated to the 
 husband ; but " the disabilities thus entailed upon her doubtless 
 protected the wife from many difficulties and hardships which in 
 the rough days of civil commotion might otherwise have befallen 
 Husband did her."' The real property of the married woman was put upon a 
 "utVSeresUn different footing, and the husband never took a greater interest 
 wife's realty, j^ j^ ^j^^jj fQj. ]jjg ]ife_ fji^jig fact may be thus explained : Land, 
 in former days the most valuable commodity, was often owned to 
 a large extent by females, the interest of whose heirs was 
 jealously guarded. Again, the principles of the tenure of land 
 must be taken into consideration. The incidents and services of 
 tenure in feudal times were most profitable, and jealously guarded 
 by those entitled to exact them. The husband took a joint 
 interest, or a full life interest, because he had to perform the 
 requisite services in lieu of his wife ; but he did not acquire the 
 fee, not only because it would have broken the line of descent 
 marked out by the original grant, but might have caused a serious 
 infraction of the rights of the superior lord, who would have had 
 a strange and possibly hostile family thrust upon him, and his 
 services imperilled. To place husband and wife on an equal 
 footing in respect of each other's property has been the modem 
 tendency of the law. Under the Married Women's Property 
 Act, 1882, all the property of a married woman is, and remains, 
 her own; but the unity of the spouses is still to a certain extent 
 recognized ; thus, though a wife is not liable for her husband's 
 debts, contracted at an inn where she lives with him, yet her 
 goods brought there are liable to the innkeeper's lien to the 
 amount of the unpaid account of her husband.^ 
 
 Section i . 
 
 Real Property. 
 
 Beai property. a. Interest of Husband m his own Realty. — Marriage in no way 
 Interest of affected the interest of the husband in his own freehold estates of 
 own freehold inheritance, and he possessed equal rights of ownership over it 
 
 after as before marriage, subject, however, to his wife's Common 
 
 Law right to dower. 
 
 estates of in 
 heritance. 
 
 1 Con. & And. M. W. P. Acts (2nd ed.), p. 3. 
 ^ Gordon v. Sitter, 25 Q. B. D. 491. 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 181 
 
 b. Interest of Husband in his Wife's Freehold Estates of Inherit- Interest of 
 ancc. — The husband's interest must be viewed in regard to the ''V^^'''"^ ^'^ 
 Common Law ; the Common Law as modified by the Married «"'*t^s of In" 
 Women's Property Act, 1870;' and the present state of the ''"'"*"''' 
 law as brought about by the Married Women's Property Act, 
 1882,^ which affects the lands of those married after it came into 
 force, and the lands which are acquired by wives (married before 
 the Act) subsequently to its coming into operation. 
 
 At Common Law the husband took a freehold interest in his wifes free- 
 wife's estates of inheritance which she possessed at the time of ^°}.'^ ■?'**^^ °' 
 
 ... '^ xiiii^j vjj. inheritance. 
 
 marriage, or of which she became seised during coverture ; his 
 largest interest in them did not exceed an estate for life. Before 
 the birth of issue capable of inheriting the wife's lands, the free- 
 hold interest of the husband was commensurate with the joint 
 lives of himself and his wife. After the birth of issue the hus- 
 band's interest was enlarged by the inchoate right which accrued 
 of enjoying her lands for his life on surviving his wife ; he then 
 became tenant by the curtesy. As long as the coverture lasted. Tenancy by 
 his interest was styled tenancy by the curtesy initiate ; after the "'^ ''"■'''"^y- 
 death of the wife, tenancy by the curtesy consummate.' Both Power of the 
 husband and wife were seised together in her right by entireties : the wUo'T "^ 
 the " effect of which is to put the ownership for the coverture ^'^^^^y- 
 entirely in the husband's power. Hence he can alienate this 
 ownership at pleasure ; and his conveyance will pass the freehold 
 without the wife's co-operation."'' He could sue in his own 
 name for injuries to the actual profits of the estate, such as 
 damage to the growing crops, and the like, though for injuries 
 done to the inheritance, whether in the nature of trespass or waste, 
 his wife must have been joined in the suit." He could charge and 
 aliene her lands for their joint lives ; he was entitled to all the 
 rents and profits of her freeholds ;" and if he survived her, he was 
 entitled to the arrears of such rents and profits accrued due up to 
 the time of her death, and might have brought an action after the 
 determination of the coverture to recover them.'^ Without the 
 husband's consent the wife had no power to aliene the lands 
 either by levying a fine, or suffering a recovery, before the Act 
 
 ^ 33 & 34 Vict. 0. 93. 
 
 = 45 & 46 Vict. c. 75. 
 
 ' " As soon ... as any child was born the father began to have a permanent 
 interest in the lands, he became one of the pares Curtis, did homage to the lord, and was 
 called tenant by the curtesy initiate ; and this estate being once vested in him by the 
 birth of the child, was not suffered to determine by the subsequent death or coming of 
 age of the infant." 2 Bl. Com. 126. 
 
 " Macq. H. & W. 28 ; Bohertson v. Norris, 17 h. J. Q. B. 201. 
 
 " I Eop. H. & W. 215. 
 
 ' Bac. Abr. Bar. and Feme, c. i ; Kingham v. Lee, 16 L. J. ' 'h. 491. 
 
 '■ 32 Hen. VIII. c. 37, s. 3. 
 
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182 HUSBAND AND WIFE. [part i. 
 
 for the Abolition of Fines and Recoveries ;' or after that Act by 
 a deed acknowledged after a separate examination f nor could 
 she dispose . of them by will, unless acting in the exercise of a 
 valid power in that behalf. The husband could mortgage his 
 Mortgages by wife's lands, and the security would last as long as he had any 
 husband. interest in them, but no longer, and his wife or her heirs on taking 
 
 the property would enjoy it freed from any charges he may have 
 created. 
 Custody of The trustee of a bankrupt husband whose wife is legal tenant 
 
 deeds. '^ ^ for life of land (not settled to her separate use) has no absolute- 
 right to the custody of the title deeds of the land during the 
 coverture ; and it is doubtful whether, under ordinary circum- 
 stances, an assignee of a husband of his right to receive during 
 the coverture the rents of such land, is entitled as a matter of 
 course to the custody of the deeds.' 
 Leases by As regards leases for years granted by deed by the husband 
 
 alone, it seems an open question whether they were void, or 
 voidable only so as to be capable of confirmation by the wife 
 after her husband's death.'' By 32 Hen. VIII. c. 37, a hus- 
 band seised of a freehold (not copyhold) estate of inheritance in 
 possession in right of his wife may jointly with his wife make a 
 lease of her lands not exceeding twenty-one years or three lives, 
 with a rent reserved to himself and his wife and her heirs ; and 
 though this rent was thus reserved to the wife as well, yet during 
 coverture the husband was entitled to take it ; and he or his 
 Power of personal representatives could sue for arrears of it.* Now the 
 Settled E&tate^a Settled Estates Act, 1877,' empowers any person entitled to 
 Act, 1877. t]jg possession or to the receipt of the rents and profits of any 
 unsettled estate in right of a wife who is seised in fee to demise 
 the same (except the principal mansion-house and the demesnes 
 thereof and other lands usually occupied therewith) for twenty- 
 one years in England and thirty-five years in Ireland,^ and the 
 demise will be valid against the wife or any person claiming 
 through or under her.' The husband has also similar powers 
 with regard to settled estates held by him in right of his wife, 
 unless the settlement excludes them." 
 
 A husband's lease of his wife's lands, whether alone or jointly 
 with her, under 32 Hen. VIII. c. 37, may be good at common 
 law, though not made in compliance with the statute ; but on the 
 
 1 3 & 4 Wm. IV. u. 74. 2 See^osf, p. 189. 
 
 ' Ex parte Bogers, Ee Pyatt, 26 Cb. D. 317. 
 
 ^ See I Br. H. & W. 196, 197. 
 
 ^ For the law on this subject see i Br. H. & W. 193-220. 
 
 " 40 «& 41 Vict. 0. 18. ' Sect. 46. 
 
 8 Sect. 47. 3 lUd. 
 
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CHAP. X.J PEOPEIETAEY RIGHTS OF SPOUSES. 183 
 
 termination of coverture the wife Las an option of affirming or 
 disafiBrming the lease.' Her affirmance of such informal lease 
 must be evinced by such acts as the acceptance of rent/ unless 
 the lease was within the Statute of Frauds, in which case it will 
 be held altogether void. 
 
 Where the wife was entitled to an estate for life, the husband Estates for 
 at Common Law acquired a freehold interest in it during the joint ^'^''' 
 lives of himself and his wife ; and he could charge it and deal 
 with it so long as his interest lasted.' If the wife were 
 impeachable for waste, and the husband committed waste during 
 the coverture, he personally, and not the wife or her estate, was 
 hable.' 
 
 The Settled Land Act, 1882,° provides that where a mar- Powers of a 
 ried woman (who if she had not been a married woman would mdw Settled 
 have been a tenant for life, or would have had the powers of a Land Act, 
 tenant for life under the Act) is not entitled for her separate ^ 
 use, she and her husband together shall have the powers of a 
 tenant for life under the Act.^ 
 
 The husband became seised in right of his wife of her copy- Wife's copy- 
 hold as well as her freehold land, and one of the homage, and ° ^' 
 bound to perform the services customary in the manor; his formal 
 admission was, however, not necessary. If he did an act entail- 
 ing the forfeiture of the estate, as by granting a lease not 
 warranted by the custom, the forfeiture did not last beyond his 
 interest; and on his death the wife was entitled to the land." 
 Many acts or omissions of services on the part of the husband 
 which would legally entail forfeiture will now be relieved against 
 by the Court of Chancery. 
 
 A husband had no interest in his wife's lands settled to her Wife's separate 
 separate use during coverture ; they were free from his control 
 and liabilities ; but if the wife did not dispose of them during Unless dis- 
 
 . , . posed of, hus- 
 
 coverture, he was entitled as tenant by the curtesy to her equit- band tenant 
 able estate. He also had no interest in the rents and profits of '"y*^®""'"'®^''- 
 realty settled to her separate use.^ So if he deserted his wife. Effect of pro- 
 and she obtained an order protecting her property against him, 
 his rights over her real estates ceased and were discharged so 
 long as the order or protection lasted ; ^ and it was the same 
 where she had obtained a decree of judicial separation.'" 
 
 1 Bell, H. & W. 175 ; and see Toter v. Slater, L. R. 3 Q. B. 42. 
 ^ Doe V. Weller, 7 T. B, 478. 3 i Br. H. & W. 112, 113. 
 
 * Kingham v. Lee, 16 L. J. Ch. 491. 
 
 ■5 45 & 46 Vict. u. 38. ^ ,^, f, V J 
 
 " Sect. 61. For what are the powers of a tenant for life, see Part 111., Oriiardiau and 
 AVard, chap. vi. 
 
 !■ Saverne v. Smith, Cro. Car. 7 ; 1 Rop. H. & W. 83 n. 
 8 See chapter xv. " 20 & 21 Vict. c. 85, s. 25. 
 
 1" Ihid. and 21 & 22 Vict. c. 108, ss. 6-10. See chapter xv. 
 
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184 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Husband's in- 
 terest modified 
 under M. W. 
 P. Act, 1870. 
 
 Wife must take 
 as heiress or 
 do -heiress. 
 
 Husband has 
 no interest 
 except by- 
 settlement or 
 gift of wife 
 under M. W. 
 P. Act, 1882. 
 
 Interest of 
 husband in 
 his chattels 
 real. 
 
 Interest of 
 husband in 
 wife's lease- 
 holds. 
 
 The interest of a husband married after the passing of the 
 Married Women's Property Act, 1870,' and before the ist of 
 January 1883, in his wife's real property, was somewhat modified 
 by section 8 of that Act, which provided that " where any free- 
 hold, copyhold, or customary-hold property shall descend upon any 
 woman married after the passing of this Act as heiress, or co- 
 heiress of an intestate, the rents and profits of such property 
 shall .... belong to such woman for her separate use, and her 
 receipts alone shall be a good discharge for the same." The 
 wife must take as heiress or co-heiress of her predecessor in 
 title. This section only specifically provides that the rents and 
 profits of the realty shall be to her separate use. If the corp^is 
 is not to her separate use (and it is an open point), on the birth 
 of issue capable of inheriting, the husband's curtesy rights cannot 
 be affected by any disposition on her part. 
 
 Husbands married after the Married Women's Property Act, 
 1882 came into force^ have no longer any interest during 
 coverture in their wives' real estate, except, so far as is secured 
 them by settlement, or is validly given them by their wives inter 
 vivos ; for married women now hold their real property unaffected 
 by any marital rights, as though they were single women.* 
 Husbands also, who were married before the Act came into force, 
 but whose wives have subsequently to its coming into operation 
 acquired in any manner real estate, no longer enjoy their former 
 common law rights over such property ; but by force of the 
 statute it is rendered separate estate, free from marital interest 
 and control.* But it seems unquestionable that husbands who 
 would be entitled to curtesy rights in the property acquired by 
 their wives under this Act, and undisposed of by them, Will be 
 allowed to retain them.' 
 
 c. Interest of Husband in his oivn Chattels Beat. — The interest 
 of the husband in his leaseholds belonging to him at the time of his 
 marriage, and subsequently acquired, was and yet remains un- 
 affected by any right of his wife arising out of marriage. 
 
 d. Interest of Husband in his Wife's Chattels Real. — At Common 
 Law marriage operated as a qualified conveyance of the wife's 
 chattels real, and enabled the husband to alienate and dispose of 
 them at his pleasure, provided that the transaction took effect in 
 his lifetime by some act inter vivos.^ The husband's marital 
 right does not, however, render him a purchaser of his wife's 
 leaseholds by the marriage, and will not prevail against her prior 
 
 33 & 34 Vict. c. 93. 
 
 Sect. I, sub s. 1, and sect. 2. 
 
 See next chapter : Curtesy. 
 
 ■ 45 & 46 Vict. t. 6, 75, January i, 18 
 
 ' Sect ^ 
 
 ' Macq. H. & AV, 23. 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 185 
 
 voluntary settlement ; ' but a valid agreement to assign or dis- 
 pose of the wife's leaseholds, though not carried out in the 
 husband's lifetime, would be enforced in equity as against the 
 surviving wife.^ He may dispose of his wife's leaseholds, 
 whether vested or contingent or reversionary, unless they are of 
 such a nature that they cannot possibly vest in the wife during 
 coverture.^ During coverture he may dispose of them altogether 
 as his own — he may assign or sublet them; but he cannot 
 by will dispose of them so as to bar her right by survivorship. 
 If he survive her, he will take them jure mariti, and need not 
 take out administration to her estate in order to reduce them 
 into possession.^ He may assign both the legal and equitable Husband's 
 interest of his wife,' and may dispose by way of absolute assign- SXT' 
 ment of the whole of his interest in them,^ or by way of sub- by way of 
 lease, in which case the undisposed-of residue of the term would by^way^of' 
 survive to the wife, though the rent reserved on the sub-lease, in mortgage. 
 the event of the husband dying before the time was at an end 
 would go to his representatives ; ' or by way of mortgage. Where 
 the assignment is by way of mortgage, the modern tendency of 
 the courts is to regard (where the contrary does not appear from 
 the deed creating the mortgage) the conveyance by way of 
 mortgage as a mere security in equity and not an absolute assign- 
 ment at law, operating as a reduction of the chattel into posses- 
 sion by the husband, so that the equity of redemption survives to 
 the wife.^ He may also assign it by other means than alienation, 
 as by his taking a second lease of the premises on a different hold- 
 ing, e.ff., a lease for their joint lives in the place of a lease for 
 years vested in the wife, because by the acceptance of the second 
 lease the term would be considered as surrendered by operation 
 of law.^ 
 
 A husband married at a date which would bring him within M. w. p. Act, 
 the provisions of the Married Women's Property Act, 1870,^^°' 
 would take no interest jure mariti in the leaseholds coming to 
 his wife as next of kin of an intestate, as they now form part of 
 her separate property ; " his interest in them would depend upon 
 her dying without having disposed of them. 
 
 So, too, if married since the Married Women's Property Act, m. \v. p. Act, 
 1882, came into force, a husband takes no marital interest, at^^^^^jj^^i 
 any rate during the coverture, in his wife's leaseholds, possessed '^!f™\'j 
 
 holds. 
 
 1 Bichards v. Lewis, 1 1 C. B. 1035. 
 
 2 Bates V. Dandy, 2 Atk. 207 ; and see OlarJee v. Burgh, 2 CoJl. 221. 
 
 3 DiLberley v. Day, t6 Beav. 33. 
 
 * I Roll. Abr. 345 ; 2 Bl. Com. 435. , ,^ , 
 
 5 Macq. H. & W. 24. " Steed v. Cracjh, 9 Mod. 43. 
 
 7 Co. Litt. 46 a. ^ C'larJx v. Burgh, 2 Coll. 221. 
 
 9 2 Roll. Abr. 495, pi. 50. ^^ Sect. 8. 
 
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186 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Interest of 
 wife in hus- 
 band's realty. 
 
 Interest of 
 wife in her 
 own realty. 
 
 M. W. P. Act, 
 1870. 
 
 M. W. P. Act, 
 1882. 
 Estate of 
 married 
 women free 
 from marital 
 control. 
 
 by her at the time of marriage or subsequently acquired ; any 
 interest he might take on surviving would depend upon her not 
 having disposed of them during coverture by gift inter vivos, or 
 by will.' The like consequences will follow in the case of those 
 who were married before January I, 1883, but whose wives after 
 that date have become entitled to leasehold property.^ 
 
 c. Interest of Wife in her Husband's Realty. — The wife during 
 coverture has no interest in her husband's realty by virtue of the 
 marriage, unless it has been secured to her by agreement between 
 the parties. Her interest in his freeholds of inheritance does not 
 arise till after the death of her husband without having disposed 
 of them.^ 
 
 /. Interest of Wife in her own Realty. — The husband, it has 
 been seen, acquired no greater interest in his wife's real estate, 
 freehold or copyhold, than a life interest ; but the fee-simple, or 
 fee-tail, remained in her, and if she died during coverture, her 
 undisposed-of realty (subject to a life interest (if any) of her 
 husband) descended to her heirs. This right of the husband 
 to a joint or a life interest in his wife's freeholds was in time 
 affected by the equitable doctrine of the separate use, and she 
 held her realty settled to her separate use discharged and free 
 from her husband's rights over it, and if not restrained from 
 dealing with it, could dispose of it as tliough she were a feme sole. 
 The Married Women's Property Act, 1870, gave her rights over 
 real property which was not settled to her separate use by 
 declaring that the rents and profits of freehold, copyhold, or 
 customary freehold property descending upon any woman married 
 after the passing of that Act, as heiress or co-heiress, should 
 belong to her for her separate use ;^ but the fee-simple in the 
 property is not to her separate use, and she cannot convey it 
 without a deed acknowledged.^ By the Married Women's Pro- 
 perty Act, 1882, the real estate of married women has been 
 rendered completely free from any marital rights in it, for all 
 those affected by the Act hold their property as if they were 
 single women, and with all the incidents and attributes of com- 
 plete ownership, unless they are specifically restrained from dealing 
 with it.'' A married woman who is lady of a manor is to be 
 
 ' Sect. I, sub-e. i ; sect. 2. 
 
 2 Sect. 5. ■ 
 
 ^ See next chapter. 
 
 ^ 33 & 34 Vict. c. 93, s. 8. This section mentions only the rents and jirofits of the 
 realty as being to the separate use, but as her interest in them is indefinite and not 
 limited, in all probability she will be deemed to have the coiyus of the property to her 
 separate use. See King v. Voss, 13 Ch. D. 504. 
 
 = Johnson v. Johnson, 35 Ch. D. 345. Dictum of Jessel, M.R., in Kiruj v, Voss 
 {uhi sup.), observed upon. 
 
 " 45 & 46 Vict. c. 75, s. I, sub-s. I, ss. 2 and 5. 
 
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CHAP. X.] PROPRIETARY RIGHTS OP SPOUSES. 187 
 
 deemed a feme sole with respect to her copyhold land for the 
 purposes of the Copyhold Act, 1894.' 
 
 The theory of the unity of the persons of the spouses formerly Gifttohusband 
 had considerable influence, and husband and wife took by entireties ^o'lntTenano 
 real property or chattels real, or personal property conveyed or 
 devised, or given jointly to them during coverture ; each was 
 deemed to be seised of the whole estate, and neither of a part ; 
 the husband alone could not convey the property so as to affect 
 the interest of the wife surviving ; ^ but the fund will be subject 
 to the husband's debts, and the wife has no equity to a settle- 
 ment in respect of it.^ But the alteration in the relations 
 of a married woman to her property effected by the Married Since M. w. 
 Women's Property Act, 1882,* which enables a married woman husband and 
 to hold her property separate and apart from her husband, now 7^*® ^° '""se"" 
 operates to prevent a husband having an estate by entireties in entireties. 
 any real or personal property which has been conveyed, devised, 
 or bequeathed to him and his wife during the marriage ; but now 
 husband and wife will hold either as joint tenants or tenants in 
 common, as the terms of the instrument of donation may provide,^ 
 and the wife will take her interest for her separate use." The 
 general effect of a gift of property, whether by .will or inter vivos, joint gift to 
 and whether limited in joint tenancy or tenancy in common' to^fg^^^*'' 
 a husband and his wife and a stranger, was formerly that the stranger. 
 husband and wife took one moiety and the stranger the other 
 moiety of the property. This rule, applicable both to real pro- 
 perty' and to personal property,' was no doubt founded on the 
 doctrine of law that husband and wife were for most purposes 
 one person. But this was a rule of construction only that was Rule as to 
 applied to the instruments of donation, and any slight indication J,ne oroon-^ 
 of intention that each donee mentioned should take an equal part struction only. 
 was effectual."' The Married Women's Property Act, 1882, No change 
 which was not intended to alter any rights except those of^^^^^ot, 
 husband and wife inter se, has not effected any change in this 1882. 
 branch of the law ; " accordingly, where it is intended that a 
 
 1 57 & 58 Vict. c. 46, 8. 45- 2 I Br. H. &W. 25. 
 
 3 Ward^. Ward, nCh. Div. 506 ; Ee Bryan, Godfrey v. Bryan, 14 Lh. Div. 516 ; 
 these cases can be considereil no longer law. .» , 
 
 ■* The alteration seems chiefly to be confined to the rights of the wife to her property 
 as between her and her husband. See Cotton, L. J., in Re Jlarch, llander v. Marrm, 
 27 Ch. Div. 166 ; and Re Jupp, Jupp v. Buckwell, 39 Ch. JJiv. 148. 
 
 ° Re Jupp, Jupp V. Bitckwell {ubi sup.). 
 
 ^ Tkomley v. Thornley [1893], 2 Ch. 229. 
 
 ' Re WyUe, 2 De G. M. & (i. 724- ' Co. Litt. 187 a. 
 
 reversed Cbitty, J. (26 Ch. Div. 222), who held that the property was divisible into 
 thirds and not into moieties, when it accrued after the Act to a stranger and a husband 
 and wife narried before the Act. 
 
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188 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Marviskge per se 
 not a severance 
 of joint 
 tenancy. 
 
 Specific per- 
 formance de- 
 creed against 
 married 
 
 "Wife's power 
 of disposition. 
 Legal estate. 
 
 stranger shall take one moiety and the husband and wife the 
 other moiety, the property will be so apportioned ; bat the wife 
 will take her share of the joint moiety as her separate property.' 
 But it is not unlikely that the future tendency will be to hold 
 that the husband and wife will take separate and not joint 
 interests, the effect of which will be distinctly in favour of 
 husband and wife, whose respective shares will be largely in- 
 creased.^ Marriage alone does not operate as a severance of a 
 joint tenancy where a woman marries who is joint tenant of real 
 estate, whether of freehold or chattel interest ; ^ or of choses in 
 action not reduced into possession by the husband ; ■* but does so 
 operate in respect of personal chattels in possession.* The prin- 
 ciple underlying this distinction is that the effect of marriage on 
 particular property in which a woman has an interest as joint 
 tenant depends on whether the marriage divests the property 
 from the wife and vests it in the husband. If it does, then the 
 joint tenancy is severed ; if it does not, there is no severance. 
 Where some novus actus interveniens on the part of the husband is 
 required — e.g., an assignment of the wife's chattels real, or reduc- 
 tion into possession of her choses in action, in neither of these 
 cases does marriage operate as a severance. ° But a settlement 
 or a covenant to settle by a joint tenant on her marriage is 
 effectual to sever the joint tenancy.' Where husband and wife 
 are tenants by entireties, a decree absolute for dissolution of 
 marriage makes them joint tenants, and the wife is entitled to an 
 account of rents and profits as from the date of the decree.' As 
 another consequence of this complete power which a married 
 woman possesses over her property, it will follow that if she 
 enter into a contract for the conveyance of her property as 
 a single woman, and afterwards marry, specific performance 
 will be decreed against her, and she will be compelled to 
 convey.' 
 
 At Common Law and under the Married Woman's Property Act, 
 1870," the wife was unable to dispose of her interest in the legal 
 
 ^ Re March, Mander v. Harris {uhi sujp.). 
 
 ^ Be Dixon, Byram v. Tull, 42 Cli. D. 306. In this case a testator gave his residue 
 to"W. B.," "E. B., his wife," " S. K.," "J. D." "G.D. B." "C. C'and "CO., his 
 wife," to be equally divided between them, share and share alike. It was held thattlie 
 residue was divisible into sevenths, " W. B." and " E. B., his wife," and "C. C." an<l 
 " C. C, his wife," taking separately. ' Go. Litt. 185 h. 
 
 ^ Co. Litt. 351 b ; Armstrong v. Armstrong, L. li. 7 Eq, 518 ; Ee Butler's Trusts, 
 Hughes v. Anderson, 38 Ch. D. 286, disapproving of Baillie v. Treharne, 17 Ch. D. 
 388. ^ Be Butler's Trusts, Hughes v. Atiderson (uhi snp.). 
 
 " Per Bowen, L..T., in Be Butler's Trusts, Hughes v. Anderson {uhi sup.). 
 
 ' Caldwellv. Fellowes, L. R. 9 Eq. 410. 
 
 ' Thornley v. Thornley [1893], 2 Gli. 229. 
 
 " The decision of Lord Cott('nham in Jordan v. Jones, 2 Ph. 170, reversing that of 
 Wigram, V.-C., is no longer law. i" Johnson v. Johnson, 35 Ch. D. 345. 
 
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CHAP. X.J PROPRIETARY RIGHTS OF SPOUSES. 189 
 
 estate of her realty except by deed or will under a power, or by 
 virtue of an agreement with her husband before marriage, without 
 his concurrence, unless dispensed with, and by going through the 
 proper forms prescribed from time to time ; ' but now she will be 
 able to sell it, charge it, mortgage it, and make leases of it free 
 from any control on the part of her husband. Though all the 
 formalities are no longer required in the case of married women 
 desirous of disposing of their property who come under the pro- 
 visions of 45 & 46 Vict. c. 75,= yet as the old law holds good in 
 the case of a still larger number, it has been thought fit to set out 
 shortly its requirements. Before the Act for the Abolition of Acknowiedg- 
 Fines and Eecoveries,^ a wife could only dispose of her legal ^,?fe'l interest 
 estate by going through the fictitious and expensive process of ^^^^^' F™es 
 
 1 • n re ■ 1-. . . „ , , ^^^ Eeooveries 
 
 levymg a fane or suttermg a recovery. By section 77 of the last- Act, 1834. 
 mentioned Act, it is enacted that " it shall be lawful for every Deed acknow- 
 married woman in every case, except that of being tenant ^^'^e^'^- 
 in tail, for which provision is already made by this Act," 
 by deed to dispose of lands of any tenure, and money subject to 
 be invested in the purchase of lands, and also to dispose of, 
 release, surrender, or extinguish any estate which she alone, or 
 she and her husband in her right, may have in any lands of any 
 tenure, or in any such money as aforesaid, and also to release or 
 extinguish any power which may be vested in or limited or 
 reserved to her in regard to any lands of any tenure, &c., as fully 
 and effectually as she could do if she were a feme sole, — save and 
 except that no such disposition, release, surrender, or extinguish- 
 ment shall be valid and effectual unless the husband concur in 
 the deed by which the same shall be effected, nor unless the deed 
 be acknowledged by her as hereinafter directed." These pro- Not applicable 
 visions do not apply to copyhold lands, which by custom might \l^^gj ° 
 have been conveyed by the married woman surrendering them, 
 with her husband's concurrence, into the hands of the lord of the 
 manor ; nor, among other things, where she executes a deed only 
 as protector of a settlement, giving her consent to the disposition 
 of the tenant in tail.^ Though there may be irregularities in 
 
 1 This was otherwise in equity ; and if the married woman had trustees_ who were 
 seised of the legal estate, on her assignment, they became trustees of her assignee, and 
 she conld compel them to execute a conveyance of the legal estate to him. Taylor v. 
 Meads, 34 L. J. Ch. 203. 
 
 ^ See Riddett v. Errington, 26 Ch. D. 220. 
 
 ■> 3 & 4 Wm. IV. c. 74. 
 
 * See sect. 40. 
 
 '^ Sect. 79. The following is the practice as to the acknowledgment of deeds by 
 married women : — The acknowledgment of the deed must be taken before a judge of 
 the High Court (36 & 37 Vict. ^. 66, s. 76), or a county court judge (S_i & 52 Vict, 
 c. 43, 8. 184), or a perpetual commissioner or a special commissioner appointed for that 
 purpose (45 & 46 Vict. c. 39, s. 7). The commissioner is to examine the marned 
 woman as to her voluntary consent apart from her husband, for one of the essential 
 
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190 
 
 HUSBAND AND WIPE. 
 
 [part 
 
 When hus- 
 band's concur- 
 rence dis- 
 pensed with ; 
 
 the deeds executed by the wife, or in the certificates of their 
 acknowledgment, or in the affidavits verifying them, yet if it can 
 be satisfactorily proved that the deeds/ or the acknowledgments 
 were duly taken, such irregularities will not be fatal.^ Where on 
 separate examination the married woman does not insist upon 
 any provision for herself out of- the purchase-money or other- 
 wise, she will be treated as giving up all claim to such purchase- 
 money, and as having no further interest in it either in law 
 or in equity ; even if the purchase-money is left outstanding 
 in the hands of trustees, and if she should survive her husband 
 and the fund still remains outstanding she cannot as against his 
 estate claim the fund as her chose in action not reduced into posses- 
 sion by the husband, for in such a case the doctrine of possession 
 does not apply/ The husband's concurrence was necessary, but 
 under certain circumstances might be dispensed with ; thus, it was 
 provided that if a husband, in consequence of being a lunatic. 
 
 purposes of the separate examination is to ascertain what is the bargain between her 
 and her husband, that is, whether the purchase-money is to belong to him or not (per 
 Kay, L.J., in Tennant v. Welch, 37 Ch. D. 635). The following are some of the more 
 important rules under the Act for the Abolition of Fines and Recoveries, and section 7 
 of the Conveyancing Act, 1882 : — 
 
 I. No person authorised or appointed under the Act 3 & 4 Will. IV, c. 74 (in these 
 rules referred to as the Fines and the Recoveries Act), to take the acknowledgments of 
 deeds by married women, shall take any such acknowledgment if he is interested or 
 concerned either as a party or as solicitor or clerk to the solicitor for one of the parties 
 or otherwise in the transaction giving occasion for the acknowledgment. 
 
 2. Before a Commissioner shall receive an acknowledgment he shall inquire of the 
 married woman separetely and apart from her husband and from the solicitor concerned 
 in the transaction, whether she intends to give up her interest in the estate to he 
 passed by the deed without having any provision made for her ; and where the married 
 woman answers in the affirmative, and the Commissioner shall have no reason to doubt 
 the truth of the answer, he shall proceed to receive the acknowledgment, but if it shall 
 appear to him that it is intended that provision is to be made for the married woman, 
 then the Commissioner shall not take her acknowledgment until he is satisfied that 
 such provision has been actually made by some deed or writini; produced to him ; or 
 if such provision shall not have been actually made before, then the Commissioner 
 shall require the terms of the intended provision to be shortly reduced into writing, and 
 shall verify the same by his signature in the margin, at the foot, or at the back 
 thereof 
 
 3. The memorandum to be endorsed on or written at the foot or in the margin of a 
 deed acknowledged by a married woman shall be in the following form in lieu of the 
 form set forth in section 84 of the Fines and Recoveries Act : — 
 
 " This deed was this day produced before me and acknowledged by 
 
 therein named to be her act and deed (or their several acts and 
 deeds), previous to which acknowledgment (or acknowledgments), the said 
 
 was (or were) examined by me separately and apart from her 
 husband (or their respective husbands) touching her (or their) knowledge of the 
 contents of the said deed and her (or their) consent thereto and (each of them) de- 
 clared the same to be freely and voluntarily executed by her." 
 
 4. When an acknowledgment is taken by any person other than a judge, the follow- 
 ing declaration shall be added to the memorandum of acknowledgment : — 
 
 "And I declare that I am not interested or concerned either as a party or as a 
 solicitor or clerk to the solicitor for one of the parties or otherwise in the transaction 
 giving occasion for the said acknowledgment." 
 
 10. These Rules shall take effect from and after the 31st December, 18S2. 
 
 ' Be Mayer, 40 L. J. C. P. 201 ; S. C. Re Sandilands, L. E. 6 0. P. 41I. 
 
 2 Re Packer, L. R. 5 C. P. 424. 
 
 ^ lennanty. Welch ^ubi sup.). 
 
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CHAP. X.] PEOPEIETAEY RIGHTS OF SPOUSES. 191 
 
 idiot, or of unsound mind, and whether he shall have been found 
 such by inquisition or not, or from any cause, is incapable' of 
 executing a deed, or of making a surrender of copyhold lands, or 
 if his residence is unknown, or he is in prison, or is living apart 
 from his wife, either by mutual consent or by sentence of divorce, 
 or from any other cause, the court ^ may make an order in a by order of the 
 summary way upon the application of the wife, and upon such ''°""*" 
 evidence as the court may deem sufficient, dispensing with the 
 concurrence of the husband.' Where application has been made 
 to the husband, the court must be satisfied that a proper applica- 
 tion has been made to him, and he has refused his concurrence." 
 The wife must apply to the court (now the Queen's Bench How the order 
 Division) for the order, supported by affidavits, one of which tained.^ °''" 
 must be made by herself,' setting forth the grounds of her 
 application; if the court is satisfied of the sufficiency of the 
 grounds alleged, it will make the order, dispensing with the hus- 
 band's concurrence ; but without the order the husband's con- 
 currence is necessary .° The affidavits must disclose clearly Contents of 
 and to the satisfaction of the court some such cause as the '*®"^*^''^- 
 following : The husband's protracted absence,' or disappearance,* 
 or desertion," coupled in each case with a refusal to support his 
 wife; but mere temporary absence is insufficient;'" or his imbecility." 
 The affidavit must also contain a statement that the husband does 
 not contribute to the wife's support, "^ but mere occasional conti'i- 
 bution towards her support does not disentitle the wife to dispense 
 with her husband's concurrence." Refusal to convey,'* or refusal 
 except on improper terms,'" is another ground for dispensing with 
 the husband's concurrence. The husband should be living apart 
 from his wife, bat if he occasionally visit her, and is actuated by 
 improper motives in withholding his consent, the court will dis- 
 pense with his concurrence, notwithstanding such visits.'" The 
 
 ^ As from infancy, Re Haigh, 26 L. J. C. P. 209 ; or lunacy, see Re Reeves, 
 24 W. B. 848. 
 
 ^ The Court of Common Pleas was the.courtin which this business was assigned ; 
 it is now merged in the Queen's Bench Division, {Re Giles, 70 L. T. 757.) 
 
 ' Sect. 91. 
 
 * Re Mirfin, 4 Man. & Gr. 635. 
 
 •' Be Williams, 2 Scotl N. R. 120. 
 
 ^ Goodchild v. Douqal, 3 Ch. D. 650. 
 
 ^ Ex parte Oill, i Bing. N. C. 16S; Re Shirley, 5 Biiig. N. C. 226. 
 
 * JEx parte Shuttleworth, 4 Man. & Gr. 332 n. 
 ' Ex parte Robinson, L. E. 4 C. P. 205. 
 
 ^' Re Squires, 25 L. J. C. P. 55 ; Ex parte Gilmour, 3 C. B. 967. 
 
 " Re Woodall, 3 C. B. 639. 
 
 ^ Re Carhurton, 16 W. E. 84 ; Ex parte Robinson, L. E. {uhi sup.). 
 
 ^^ Re Caine, 10 Q. B. D. 284. But if the husband correspond with the wife, and 
 remit money for her support, she will not be entitled to an order. Re Squires 
 [ubi swp.) " Re Mirfin (ubi sup.). 
 
 '^ Re Woodcoch, i C. B. 347 ; Re Caine (ubi sup.). 
 
 ^' Re Alice Rogers, L. E. i C. P. 47. 
 
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1 92 HUSBAND AND WIFE. [part i. 
 
 dispensing by order with the husband's concurrence renders the 
 separate examination and acknowledgment by the wife unneces- 
 sary.' But the interests of the husband existing independently 
 of the Act are not affected by the dispensing with his concurrence 
 and the alienation on the part of his wife, and his common law 
 rights in his wife's property acquired through coverture are not 
 taken away from him.^ Married women affected by the old law 
 must comply with these formalities, as has been already stated. 
 Separate exa- Those who are Under the present law will clearly be able to deal 
 "ecessary""' ^itt tlieir legal as well as equitable estate without their husband's 
 uiK^r M. w. concurrence ; indeed, to require it would be contrary to the spirit 
 of recent changes. If the husband's concurrence is dispensed with, 
 the necessity for her separate examination is gone. Where women 
 have been married, and their title to the property has accrued 
 after January i, 1883, they will not require separate examina- 
 tion, or the concurrence of their husbands.^ It is, however, 
 possible that under certain circumstances the separate examina- 
 tion and acknowledgment of the woman may be retained when 
 she proposes to alienate her property ; ^ it is almost certain that 
 the Court of Chancery would not permit one of its wards within 
 a short period of attaining majority to dispose of her realty with- 
 out ascertaining that she had acted freely and voluntarily in so 
 doing.' Under the Settled Estates Act, 1877,° a married woman 
 applying to the court, or consenting to an application, is required 
 to be examined apart from her husband ; and if she was married, 
 and her interest in the property was acquired, before the Married 
 Women's Property Act, 1882, came into force, she will still require 
 to be separately examined ; ' and this is so where the money result- 
 ing from the sale of settled estates is in court, notwithstanding the 
 eJTect of the provisions of section 3 2 of the Settled Land Act, 
 1882.^ But if she has married since the Married Women's 
 Property Act she is not so required to be separately examined;' 
 nor need she be separately examined where she submits her 
 interests to the Court in an application under the Settled Estates 
 
 ^ Ooodchild V. Dougal, 3 Ch. D. 650. 
 
 ^ Fowhe V. Draycott, 29 Ch. D. 996. 
 
 ^ Be Drwmmond and Davie's Contract [1891], i Ch. 524. 
 
 ^ On the principle that as the separate examination waa devised as a means of 
 protection against the influence of the husband, and as Acts of Parliament do not 
 change human nature, the protection devised of old ought to be continued. _ • 
 
 ^ There ■would seem to be yet a ca,se in which the acknowledgment of the wife and 
 the concurrence of the husband would be necessary, viz., where they were jointly seised 
 of the property which they desired to convey. The wife's interest would have to be 
 protected, and certainly the husband's concurrence would be requisite. 
 
 ^ 40 & 41 Vict. c. 18, s. 50. 
 
 ' Me Harris' Settled Estates, 28 Ch. D, 171. 
 
 8 lie AraUn's Trusts, 52 L. T. 728. 
 
 8 lie Shirley's Settled Estates, 59 L. J. Ch. 82. 
 
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CHAP. X.] PROPEIETAEY RIGHTS OF SPOUSES. 193 
 
 Act, 1877.' If she is an infant, the concurrence of her guardian 
 is not enough, but she must be separately examined;^ though the 
 court under certain circumstances beneficial to all parties will 
 dispense with her separate examination.^ A married woman 
 was able to aliene her copyhold lands, where possible, according Alienation of 
 to the usual custom of the manor, by surrendering them into <'°py'i°Ws. 
 the hands of the lord of the manor, with her husband's con- 
 currence. But now, under the effect of the above-mentioned Act, 
 such surrender may be effected by her without the concurrence of 
 her husband.* 
 
 As incidental to her interest in her real estate, a married Mortgages 
 woman could mortgage it, but, as in the case of a sale, her ^^ome™^** 
 husband had to concur; she was required to be separately 
 ■examined, and her deed acknowledged before she could make 
 a valid conveyance by way of mortgage.* Compliance with 
 the forms of the Fines and Eecoveries Act, 1834, will be needed 
 in the case of those mortgaging their real property who were 
 married before January i, 1883, and whose title to their property 
 vested in them before that date, but not in the case of those who 
 were married on or after that date, or whose title to their property 
 a,ccrued after that date, though their marriage was anterior to it.* 
 
 When mortgages of the wife's property were executed by bus- Wife's equity 
 band and wife, questions often arose as to whether the equity of '^ 
 redemption was in the wife and her heirs, or in the husband and 
 his heirs. As a general rule, it was held that the equity of To defeat 
 redemption remained in the wife and her heirs.'' To defeat this change of pro- 
 equity on the wife's part, a change of property in the realty must ^^^usriiave been 
 liave been intended, and she must have clearly and expressly con- intended. 
 tracted that such change should be effected,* and if the intention 
 was that the husband should have the equity of redemption he 
 was entitled to it ; ' thus, where an estate belonging to the wife 
 was mortgaged, and the equity of redemption was in words 
 reserved to the husband and his heirs, the court held that there 
 was a resulting trust for the wife and her heirs." But her con- 
 tract, or desire that the property should change, and the equity 
 be in her husband, may be proved by her assenting to limitations 
 in the mortgage deed inconsistent with her right to the equity of 
 redemption;" in other words, the mortgage deed operates as a 
 
 ' Riddell v. Ertington, 26 Cb. D. 220. 
 
 2 See Re Broodwood's Settled Estates, L. K. 7 Cb. App. 323. 
 
 * See Be Ealliday's Settled Estates, L. K. 12 Eq. 199. 
 
 * If by the custom of the manor her separate examination was required, probably she 
 would still have to conform to that custom. 
 
 ^ 3 & 4 Wm. IV. 0. 74, s. 77 ; Price v. Copner, i Sim. & St. 347. 
 « 45 & 46 Vict. c. 75, s. 5. ' Macq. H. & W. 183. 
 
 8 Be Bdton's Trust Estates, L. E. 12 Bq. 553. 
 s Jaclcson v. Innes, i Bli. 104. 1° Ibid. " Ihid. 
 
 N 
 
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194 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Equity of 
 exoneration. 
 
 Wife's pro- 
 perty surety 
 only for hus- 
 band's debts. 
 
 Leases by 
 married 
 
 new settlement, diverting the property of the estate from one 
 channel to another.' Where a married woman's property affected 
 by the new law is conveyed by way of mortgage, there can be no- 
 doubt of the wife's equity being in herself and her heirs, for she 
 alone and apart from her husband will convey the property. 
 
 Where a wife mortgaged her lands for the purpose of paying 
 off her husband's debts, she was entitled in equity to have her 
 estate exonerated out of his assets. This equity was put on the 
 principle that her property was merely a surety for his debts, and 
 had all the remedies of a surety." "It is a common case for a 
 wife to join in a mortgage of her inheritance for a debt of her 
 husband. After his death she is entitled to have her real ' estate 
 exonerated out of his personal and real assets ; the court consider- 
 ing her estate only as a surety for his debt." ' This equity still 
 exists even if part of the mortgaged property belongs to the hus- 
 band.* So, where a wife pays off her husband's mortgage by a 
 loan of money out of her separate estate, she is entitled to stand 
 in the place of the mortgagee ; and even where she joins with 
 him in charging her estate she is entitled to be exonerated out of 
 his estate.* The consequence of this doctrine was that the other 
 creditors of her husband had no preference over her in the admin- 
 istration of his assets. But now where her husband is a trader 
 and made bankrupt, she is expressly postponed in such a case till 
 his creditors have been satisfied in f ull.° If this provision is con- 
 fined to traders (which is not without doubt), the former law will- 
 still hold good where the husband is a non-trader.' 
 
 At Common Law a married woman was incapacitated from 
 making leases of lands belonging to her ; and her husband alone 
 could not make leases of them to last beyond the coverture. 
 Under 32 Hen. VIII. c. 28, husband and wife together were 
 empowered to make leases of lands to which the wife was entitled 
 in fee or in tail for a period not exceeding twenty-one years, in 
 accordance with the conditions prescribed by that Act. In equity 
 she was enabled to execute leases of the property settled to her 
 separate use ; and the extent of the term created depended upon 
 the amount of her interest in the property demised. Under the 
 Settled Estates Act, 1877,' ^ married woman, whether adult or 
 an infant, may consent to a lease by her husband of her settled or 
 
 ^ See Reeves v. Hides, 2 Sim. & St. 403. . 
 
 ^ Earl of Huntingdon v. Countess of Huntingdon, 2 Bro. P. C. I. 
 
 ^ Per Lord Hardwicke in Bohinson v. Gee, i "Ves, Sen. 252 ; see Hudson v. Car- 
 micJiael, Kav, 613. ■* Aguilar t. Aguilar, 5 Madd. 414. 
 
 ^ Parteriche v. Powlet, 2 Atk. 384. '' 45 & 46 Vict. c. 75, 3.3. 
 
 '' The doubt arises from the use of the words "or otherwise" in section 3. See 
 chap. xiv. Contracts of Married Women. 
 
 " 40 & 41 Vict. 0. 18, s. 52. 
 
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CHAP. X.J PROPRIETARY RIGHTS OF SPOUSES. 195 
 
 unsettled property in pursuance of the prescribed conditions ; ^ 
 her consent must be ascertained by her separate examination.^ 
 But examination is not requisite in the case of those married 
 after January i, 1883.^ 
 
 Under the Settled Land Act, 1882/ a married woman who, Settled Land 
 if she had not been a married woman, would have been a tenant ■*■"*' '^^^" 
 for life, or would have had the powers of a tenant for life,'* under 
 the foregoing provisions of this Act, is entitled for her separate 
 use, or is entitled under any statute, passed or to be passed, for 
 her separate property, or as a feme sole, then she, without her 
 husband, shall have the powers of a tenant for life under this 
 Act.- Where she is constituted a feme sole by a decree of judicial 
 separation, the property over which she obtains the sole power 
 under this Act must have been acquired whether in possession or 
 reversion after the date of the decree." Where she is entitled 
 otherwise than as aforesaid, then she and her husband together 
 shall have the powers of a tenant for life under this Act. The 
 provisions of this Act referring to a tenant for life, and a settle- 
 ment and settled land, shall extend to the married woman without 
 her husband, or to her and her husband together, as the case may 
 require, and to the instrument under which her estate or interest 
 arises, and to the land therein comprised. The married woman 
 may execute, make, and do all deeds, instruments, and things 
 necessary or proper for giving effect to the provisions of this sec- 
 tion. A restraint on anticipation in the settlement shall not pre- 
 vent the exercise by her of any power under this Act. Since 
 the passing of the Married Women's Property Act, 1882, the 
 provisions of the Settled Estates Act, 1877, as to her leasing 
 powers would only apply to lands vested in a married woman 
 before January i, 1883 ; so, too, the powers to be exercised by 
 her under the Settled Land Act, 1882, would require to be exer- 
 cised by her jointly with her husband as to lands vesting in her 
 before that date, though she can exercise them solely with regard 
 to lands vesting in her after that date, or if she has married 
 subsequently to it. 
 
 Under the Agricultural Holdings Act, 1 883,^ a woman married 
 ' before January i, 1883, who possessed separate property without 
 restraint upon anticipation, may exercise the powers under that 
 Act without the concurrence of her husband. 
 
 1 For what leases can be made tinder this Act, see Part HI., Guardian and Ward, 
 chap. vi. ^ Sect. 50. 
 
 * Middell v. Errington, 26 Ch. D. 220. 
 
 * 45 & 46 Vict. 0. 38, S. 61. , . , X T3 J. TTT 
 
 5 For what are the powers of a tenant for life under this Act, ^ee pout, Part 111., 
 Guardian and Ward, chap. vi. , 
 
 « Waite V. Morland, 38 Ch. D. 135. ' 46 & 47 Vict. c. 61, <-. 3&- 
 
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196 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 alty. 
 
 Interest of The interest of the wife in her chattels real at law was alto- 
 
 rhltteu''re'ai. gether at the disposal of her husband, and if he chose by act 
 during his lifetime to dispose of them, he barred her right to 
 them ; but his testamentary disposition unaccompanied by any act 
 inter vivos charging the property in them did not exclude her claim 
 by survivorship.^ In equity she had full right and control over 
 her leaseholds settled to her separate use ; and her interest in 
 them under the new law will be quite unaffected by any marital 
 rights. 
 
 Section 2. 
 
 Personal Property. 
 
 Interest of a. Interest of Htisiand in his own Personalty. — The fact of mar- 
 
 own person- '° riage in no way altered the relations of a man to his personal 
 property. All his personal goods and chattels, whether existing 
 at the time of marriage or subsequently brought into existence, 
 remain his absolutely, without any right to or claim over them on 
 the part of his wife. " Those chattels, personal in possession, and 
 specific chattels in the hands of third parties, which before the 
 marriage belonged to the husband, continue to belong to him 
 exclusively after the marriage, the communio ionortim being 
 unknown to the marriage law of England." ^ 
 
 h. Interest of Husband in his Wife's Personalty. — Marriage, as has 
 been stated already, operated at Common Law as a conveyance of 
 all the wife's specific personal chattels to her husband, i.e., he took 
 jicre mariti an absolute interest in all such property which she 
 possessed at the time of marriage or subsequently became possessed 
 of. This operated at times very harshly against the wife, and 
 prevented her from holding any personal property except on the 
 sufferance of her husband. This doctrine was tempered and modi- 
 fied by the equity invention of the separate estate, by which an 
 interest in her own jsroperty was secured to a married woman un- 
 afiected by any rights of her husband.' Her husband's power 
 over her equitable estate in pure personal chattels (except chattels 
 real) was regulated by his power over the legal estate ; and his 
 right over a specific chattel held in trust for his wife was absolute, 
 but it was not complete in her choses in action until he had taken 
 steps to reduce them into possession.'' 
 
 Now by the Married Women's Property Act, 1882, the Common 
 Law rights of a husband married after that Act came into force as 
 to his wife's personal property are completely taken away." His 
 
 1 Macq. H. & AV. 23. 2 Maoq. H. & W., 18-19. 
 
 ^ See chapter xv. Separate Estate. ■• Lewiii, 833. 
 
 " It is true that section 14 says that a hushand shall be liable for his wife's ante- 
 
 Interest of 
 husband in 
 wife's person 
 alty. 
 Specific 
 chattels. 
 
 Alteration of 
 the law. 
 
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CHAP. X.] PEOPRIETAEY RIGHTS OF SPOUSES. 197 
 
 rights to her property ou intestacy will be considered in a follow- 
 ing chapter.' 
 
 c. Interest of Husband in his Wifcs Glioses in Reversion. — A hus- Husband's 
 band under the former state of the law was entitled to the choses '^ife^thoses 
 in reversion of his wife, whether vested or contingent, which fell '° reversion. 
 into possession during coverture, but not otherwise. If they did 
 
 not fall into possession during coverture he could not validly 
 assign them, so as to defeat his wife's title by survivorship," 
 If the reversionary property did not vest in possession during the 
 coverture, but the husband survived the wife, by taking out letters 
 of administration to her estate, he became entitled to it on its 
 vesting in possession. If he died before- it vested in possession 
 his personal representatives on taking out letters of administra- 
 tion to his wife's estate became entitled to it.' 
 
 Under the Married Women's Property Act, 1870, the husband m. w. p. Act, 
 is deprived of his interest in his wife's reversionary property not ^^^°' 
 exceeding ;£^200 coming to her during coverture under any deed 
 or will." Under the recent Married Women's Property Act, m. w. p. Act, 
 the interest of a husband married after the Act came into force ^ 
 in his wife's reversionary property of every description, and to 
 any amount, is expressly taken away f so is the interest of 
 husbands who were married before that date, but the reversionary. 
 property of whose wives vests in possession after that date." 
 But the principle of the case of Re the Goods of Harding will 
 apply if the wife die intestate as to her property, and the 
 husband will be entitled to her reversionary choses on administra- 
 tion. 
 
 d. Interest of Husband in his Wife's G hoses in Action. — The right interest of 
 
 of the husband to the wife's specific chattels and to her choses in wife's choses in 
 action was not identical at law. To the former, whether belong- »<=tio°-- 
 ing to his wife at the time of marriage or devolving upon her ' 
 during marriage, he was absolutely entitled, and might have 
 brought an action for them in his own name, and if he survived 
 her was entitled to them without administering to her estate ; 
 and if he died in her lifetime, they did not survive to the wife, 
 
 nuptial debts, &c., " to the extent of all property whatsoever belonging to his wife 
 which be shall have acquired or become entitled to from or through his wife." Ihe 
 expression "become entitled to'' does not seem a very happy one, for it might be 
 inferred that he was entitled to property of his wife jure mariti, which he is not ; and 
 his right and title can only depend upon the terms of the bargain made by way ot 
 settlement, or arise on her intestacy. 
 
 ^ See next chapter. 
 
 - Ashby V. Ashhj, 1 Coll. 553. 
 
 '- Be The Goods of Harding, L. R. 2 P. & D. 394. 
 
 " 33 & 34 Vict. 0. 93, s. 7. 
 
 ' 45 & 46 Vict. c. 75, s. 2. 
 
 6 Sect. 5. 
 
 ' See post, chap. xi. p. 231. 
 
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]98 HUSBAND AND WIFE. [part i. 
 
 but to his executors or administrators.' But this was not so in 
 the case of what was known as her choses in action ; and marriage 
 was only a qualified gift to the husband of his wife's choses in 
 action, viz., upon condition that he reduced them into possession 
 during its continuance ; for if he happened to die before his wife 
 without having reduced them into possession, she and not his 
 personal representatives were entitled to them, for a wife was 
 capable of having a chose in action conferred upon her, which 
 survived to her on her husband's death, unless he had interfered 
 by doing some act to reduce it into possession ;'■' or if they 
 were reduced into possession after the marriage had been dissolved,' 
 unless he had become a purchaser of them, as by ante-nuptial 
 settlement.^ 
 M. w. p. Act, The Married Women's Property Act, 1882, affects the husband's 
 ^^^^* interests in his wife's choses in action as in other classes of pro- 
 
 perty, for the term " property " in the Act includes " a thing in 
 action."* Thus his interest in them depends upon whether he 
 was married before or after the Act came into force. If he has 
 married since the Act came into force, unless he has by agree- 
 ment acquired a right to them, he has no interest in them.' 
 Neither has he any where he was married before the Act came 
 into force, but his wife's title to them has accrued since 
 that date." The Act, it is submitted, does not affect rights 
 already accrued ; and husbands who have acquired a right to 
 their wives' choses in action, but have not proceeded to enforce 
 them, will be permitted to do so. This then will necessitate a 
 short statement of the law on the subject, and the method of 
 enforcing claims to them. 
 What are A chose in action is a right to be asserted, or property to be 
 
 action. reduced into possession by action at law or in equity. A wife's 
 
 choses in action would be such things as debts owing to her on 
 bond or otherwise f bills of exchange and promissory-notes payable 
 to her;^ arrears of rent;'" legacies ;" trust funds;'" residuary 
 
 ' Bac. Abr. Bar. and Feme (C.) ; i Eop. H. & W. 169 : and see Sird v. Feagrim, 
 22 L. J. C. P. 166. 
 
 ^ Dcdton Y. Midland Counties Mailway Company, 22 L, J. C. P. 177 ; I Wms. 
 Exors. 738 ; Osborn v. Morgan, 21 L. J. Ch. 318. 
 
 ^ Gaters v. Madeley, 6 M. & W. 496 ; Sherrington v. Vates, 13 L. J. Ex. 249. 
 
 * Norhone's Case, Freem. Ch. 282. 
 
 ^ 45 & 46 Vict. c. 75, s. 24. 
 
 ^ Sect. I, sub-sect. 2 ; sect. 24. ' Sect. J- 
 
 ^ Coppin V. , 2 P. Wme. 496. 
 
 " (raters v. Madeley, {ubi sup.). A married woman will now be the proper person 
 to endorse negotiable instruments given to her either before or during marriage ; and 
 her husband will no longer be entitled to do so, and act upon them. See Barlow v. 
 Bishop, I East, 432. 
 
 '" Salwey v. Salwey, Amb. 693. 
 " Blount V. Bestland, 5 Ves. 515. 
 '2 .Fleet V. Perrins, L. R. 3 Q, B. 500. 
 
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CHAP. X.J PROPEIETARY EIGHTS OF SPOUSES. 
 
 199 
 
 personal estate;' money in the funds, and other property, the 
 recovery of which necessitates a recourse to legal process. 
 Debentures are also choses in action,^ and so are shares ia a 
 partnership ; ^ but shares in companies governed by modern What are not. 
 statutes are not, for the legal as well as the equitable title to 
 them can be transferred by delivery.^ 
 
 Although the property in the wife's choses in action is not 
 ohanged by the marriage, yet by the marriage the husband acquires By marriage 
 .a power of suing for and recovering them, and so making them q"i>ed'a right 
 iis own, by converting them in fact into chattels personal in '° ^'^^ *" *°* 
 
 - 1 n • 1 recover wife s 
 
 possession ; and payment ought, during the marriage, to be made choses in 
 
 to the husband, not to the wife, except as his agent.° The ^ ^™' 
 
 husband's interests were put an end to by death ; also by divorce,'' 
 
 judicial separation/ or the obtaining of a protection order. In 
 
 the case of judicial separation the chose in action must have vested 
 
 after the date of the decree ;^ and in that of a protection order 
 
 after the desertion and during the continuance of the order." 
 
 In order to reduce his wife's chose in action into possession Beductiouinto 
 
 the husband must not only have intended so to reduce it, but P™''^^s'°°- 
 
 must have done some act to give effect to his intention ; that is. What is. 
 
 he must have done something to divest his wife's right and to 
 
 make his absolute, such as bringing an action for its recovery, or 
 
 actually receiving or dealing with it. For the interest of a 
 
 husband in a chose in action of his wife which he has not reduced 
 
 into possession is not a mere possibility, but property subject to 
 
 the condition that he must reduce it into possession.'" His act 
 
 must at some moment or other have given him absolute dominion 
 
 over the chose in action without the concurrence of his wife." 
 
 The following acts have been held a sufficient reduction into what is suffi- 
 possession by the husband: — Keceipt by the husband of the f und i^^ poggeg. 
 owing to his wife, or a joint authorization by husband and wife of ^i™- 
 a person to receive it who actually does receive it ; '^ also a receipt 
 by an agent appointed by the husband of money forming part of 
 the estate of an intestate of which the wife is administratrix;'^ 
 transferring stock of wife by husband into his own name, or into 
 
 ^ Saker v. Sail, I2 Ves. 497. 
 
 " Ex parte Mensburg, 4 Cb. D. 685. 
 
 3 Me Bainhridge, 8 Ch. D. 218. 
 
 ^ I Lind. Comp. 454. 
 
 5 Macq. H. & W. 48. 
 
 « Prole V. Soady, L. E. 3 Cb. App. 220. 
 
 ' Be Insole, L. E. i Eq. 470. 
 
 » See Waite v, Morland, 38 Ch. D. 155. „ 
 
 » Be Coward and Adam's Purchase, L. E. 20 Eq. I79- See Ooolce v. J<uUei, 
 26 Beav. 99. 
 
 " Per Fry, J., in Be Biaggi, W. N. 1882, p. 65. ^, „ „ 
 
 " Nicholson t. Drury Buildings Estate Company, 7 Ch. JJ. 4S. 
 i» Boll. Abr. 342, 350. '= lie Barber, 11 Ch. D. 442. 
 
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200 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Wliat is not 
 sufficieut re- 
 duction into 
 possession. 
 
 the names of trustees appointed by him ;' a loan of his wife's 
 money by her trustee on mortgage of husband's own property ;^ 
 so, toOj a payment into court to the credit of the lunacy account, 
 the husband being a lunatic.^ 
 
 Where the husband during coverture has failed to make his- 
 title to his wife's choses in action complete at any one time, he 
 will not be deemed to have reduced them into possession. The 
 following have been held insufficient reduction : — Mere appropria- 
 tion of a fund by a third party to satisfy a legacy to the wife on 
 which the husband receives interest,^ or the mere receipt of 
 interest on a debt due to the wife,* or a set-off of the wife's 
 fund against a debt owed by the husband," or proof on his. 
 part of his wife's debt in bankruptcy ;" neither does the mere 
 receipt of part of the wife's chose in action constitute a reduction 
 into possession.^ Thus, where a wife was entitled to a sum of 
 money in the hands of a third person, and on her marriage the 
 holder transferred the sum into the joint names of the husband 
 and wife, the husband directing him to keep it separate from his 
 (the husband's) other moneys, this was held no reduction ;' an 
 investment not inconsistent with the wife's equities is not a re- 
 duction.'" It is the same where the husband is not at any time 
 during the coverture capable of asserting his rights," or where 
 he obtains possession of the chose in action in a non-marital 
 but representative capacity as executor '^ or trustee,'^ or where 
 the chose cannot be reduced to a certainty in his lifetime," or 
 he agree that stock belonging to the wife shall be settled on him- 
 self and wife, and he die before the settlement is completed,'* 
 or where by agreement he has precluded the reduction into pos- 
 session.'" Where there is a decree in a joint suit by husband 
 and wife in respect of money claimed in her right, and the hus- 
 band die before any further proceedings are taken, the benefit of 
 the decree will survive to the wife ; " so, where judgment is 
 recovered in an action, but the husband dies before execution, 
 there is no reduction into possession.'* 
 
 ^ Burnham v. Bennett, 2 Coll. 254. 
 
 2 Bawlins v. Birlcett, 4 W. R. 795 ; Wldgery v. Tepper, 7 Ch. D. 423 ; affirming 
 S Ch. D. 516. ^ Be Jenkins, 5 Euss. 183. 
 
 * Blount V. Bestland, 5 Ves. 515. 
 
 ' Sart V. Stephens, 14 L. J. Q. B. 148. 
 
 ^ Harrison v. Andrews, 13 L. J. Ch. 243. 
 
 ' Hall V. Hill, 1 Con. & Law, 135 : Aiion. 2 Vern. 706. 
 
 8 Nash V. Nash, 2 Madd. 133. » Scrutton v. Patillo, L. E. 19 Eq. 369. 
 
 " Byland v. Smith, I Myl. & Cr. 53. 
 '^ Aitchison v. Dixon, L. E. 10 Eq. 589. 
 
 '2 Baker v. Hall, 12 Ves. 497. '^ Wall v. lomlinson, 16 Ves. 413 
 
 " Amhurst v. Selby, 11 Vin. Abr, 377, pi. 8. ^^ Mrt v. Fort, Forrjyi. 
 
 ^^ Nicholson v. Drury Buildings Estates Co., 7 Ch. D. 48. 
 !'■ Nanney v. Martin, I Eq. Gas. Abr. 68. 
 18 Bond V. Simmonds, 3 Atk. 20. 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 201 
 
 If the husband does not reduce his wife's choses in action into When letter 
 possession during coverture, and he survive her, he must take °' '^'^°'"'^^'™" 
 out letters of administration before he can become possessed of '^®°°^^*'^'- 
 them ; ' but if he dies before he administers, his representatives 
 will have the right to administer.^ Since the husband in order 
 to reduce his wife's choses in action or reversionary interests into 
 possession frequently had need of recourse to the Court of Chancery, 
 it was the practice of the court to put him upon terms favourable 
 to his wife before it would part with the fund or property sought 
 to be reduced by him into possession, on the principle that he 
 who seeks equity must do it. This right of the wife to have a 
 provision made for her out of her own property is called her 
 equity to a settlement.' Before the passing of Malins' Act,'' Assignment of 
 the husband could not dispose of his wife's reversionary choses in aoS ''^ 
 action so as to bar her right of survivorship ; but after its passing Malins' Act, 
 he and his wife could join in disposing of such (unless she was ' ^'^ 
 restrained from anticipating), by conforming with the provisions 
 of the Fines and Eecoveries Act, 1834.* 
 
 If the wife's title to her choses in action accrued before the 
 Married Women's Property Act, 1882, came into force, her hus- 
 band would be entitled to reduce them into possession, though 
 he commence proceedings after the Act has come into force to 
 effect that purpose^ and on reduction they would become his 
 absolutely. 
 
 e. Interest of Wife in her Husband's Personal Propertij. — The Marriage gave 
 mere fact of marriage gave the wife no claim to participate in her in husband's 
 husband's personal estate during coverture, nor any indefeasible ^^^^^^q^^^. 
 right to share in it after his death. ture. 
 
 /. Interest of Wife in her own Personal Projierty. — At this point interest of 
 a comparatively short exposition of the law will suffice, because ^rsonaity. 
 some of the same ground will be traversed in the later chapter on Specific 
 Separate Estate. On marriage a woman ceased to have any possession. 
 ownership or interest in her specific chattels which she might 
 possess at the time of marrying or might subsequently acquire. 
 A married woman could not acquire any legal right to personal 
 property during her coverture ; and if she had money or goods 
 in her possession, and she lent the one or sold the other, the right 
 to recover the debt or the value of the property thus parted with 
 vested in the husband. If she survived her husband, who died 
 intestate, his personal representative and not herself took his 
 
 Bourney. Crofter, 2 Moll. 318. 
 2 Eiliot V. Collier, 3 Afk. 576. 
 
 ■' For the discussion of this subject, see post, pp. 207 et seq. 
 ■* 20 & 21 Vict. c. 57. 
 ' 3 & 4 Wm, IV. 0. 74 ; see ante, p. 189. 
 
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202 HUSBAND AND WIFE. [part 
 
 property, though all that he died possessed of ' might have bee 
 
 derived from her, and she could only claim to share in it by fore 
 
 of the Statute of Distributions ; ' but when she died intestaf 
 
 possessed of separate estate, her husband tookity^re mariti. j 
 
 married woman's interest in her personal property was increase 
 
 under the Divorce and Matrimonial Causes Acts ; ^ for if, durinj 
 
 a judicial separation, or the currency of a protection order, sh 
 
 acquired property, she acquired it in all respects as if she were i 
 
 feme sole, and on her decease intestate it was to go as though he 
 
 husband were dead. The Married Women's Property Act, 1870 
 
 increased her interest in certain classes of specific chattels enn 
 
 merated below. The Married Women's Property Act, 1882, ha 
 
 brought about a complete alteration in the relations of a marriee 
 
 woman to her personal property. All chattels personal in posses 
 
 sion which belong to her at the date of the marriage or are after 
 
 wards acquired by her remain and become her own separate pro 
 
 perty, which she can dispose of in any manner she pleases ; wages 
 
 earnings, money, and property gained or acquired by her separab 
 
 exertions are included. 
 
 Interest of A married woman under the Act of 1870 acquired a sol( 
 
 earning^^"^ interest iu the wages or earnings gained by her in any employ' 
 
 M. w. p. Act, ment, occupation, or trade which she carried on separately fron 
 
 ^ ^°' her husband, and in any money or property gained by her througl 
 
 the exercise of any literary, artistic, or scientific skill, and in al 
 
 investments of such wages, &c. ; and her receipts alone were i 
 
 good discharge for them.' Her interest was the same whethei 
 
 she carried on the trade at the time of marriage, or afterwards 
 
 entered into it.'' Before this Act her husband could recover and 
 
 retain as his own property wages due to her ; and her receipt, 
 
 unless as agent for him, was no discharge of the debt.* Hei 
 
 interest in these classes of property has been confirmed by the 
 
 M.w. p. Act, Act of 1882, both as regards women married before and aftei 
 1882. 1 » . 
 
 the Act came into forco.^ 
 
 M^^^P _4ct8 '^^^ ^°^® interest of a married woman in the savings effected 
 
 1870 & 1882. ' by her out of her separate property,' and in the investments oi 
 
 such savings, has always been recognised in equity. Her savings 
 
 out of her statutory separate property were secured to her by the 
 
 Married Women's Property Act, 1870; and by the like Act oi 
 
 ^ 22 & 23 Car. 11. c. 10. 
 
 ^ 20 & 21 Vict. c. 85 ; 21 & 22 Vict. c. 108. 
 
 3 Sect. I. 
 
 ■• See AsMvorth v. Outram, 5 Ch. D. 923 ; LoveU w. Newton, 4 C. P. D. 7 ; St 
 Dearmer, James v. Dearmer, 53 L. T. 905. 
 
 5 Offley V. Clay, 3 Scott, N. K. 372. 
 
 " 45 & 46 Vict. c. 75, B. 5. 
 
 ' Maddison v. Chapman, i J. & H. 470 ; Steward 7. Blaheway, L. E. 4 Ch, 
 App. 603. 
 
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CHAP. X.] PROPKIETARY RIGHTS OF SPOUSES. 203 
 
 1882, she will be entitled to all savings effected by her out of her 
 
 property, both that which has been rendered her separate property 
 
 by the Act, and that which before the Act was strictly not her 
 
 separate property, but out of which she was entitled to put up 
 
 savings which became her separate property ; thus, she will be 
 
 entitled to accumulations or savings out of the pin-money allowed 
 
 her, at any rate in such cases as she would formerly have been 
 
 entitled to the accumulations as her separate property.' But 
 
 where the wife is living with her husband, and is supported by 
 
 him, and is allowed a sum for household expenses, and she saves 
 
 out of it, the recent Act does not confer any interest in these 
 
 savings upon her, and she will not be entitled to claim them as 
 
 her own property.' Any damages that a married woman may Damages : 
 
 recover in an action founded on contract or in tort belong to her ^- w. p. Act, 
 
 as her separate property ; and if she bring her action in tort 
 
 jointly with her husband, any damages recovered in it will still 
 
 belong to her as her separate property.'' 
 
 The interest of a married woman in her choses in reversion Wife's interest 
 depends upon the date of her marriage and of the accrual of her reversion.^^"" 
 title to them. If she was married, and her title to them accrued 
 before the Married Women's Property Act, 1882, came into force, Husband's in- 
 and they fall into possession during coverture, they become the upon reduction 
 husband's absolutely unless settled to her separate use. If they ^"^ posses- 
 do not fall into possession during coverture, they survive to her, 
 unaffected by any disposition the husband alone may have made 
 of them, or the claims of his personal representatives. The 
 coverture may be determined not only by death, but by the dis- 
 solution or even suspension of the marriage tie ; and where a 
 chose in reversion belonging to the wife is not reduced into 
 possession before the marriage is terminated by a decree of disso- 
 lution, the interest of the wife in it remains unaffected by any 
 rights of her late husband.* But where she has married, or her 
 title has accrued since the Act has come into force, her interest in 
 it remains unaffected by any marital right, and she can dispose of 
 it by act inter vivos, or by will, just as she can her specific chattels 
 in possession.^ 
 
 A married woman at one time could not make solely, or jointly 
 
 ^ See McLean v. Longlandi, 5 Ves. 79 ; Dixon v. Dixon, 9 Ch. D. 587. 
 
 ^ See Slanning v. Style, 3 P. Wms. 338. 
 
 2 45 & 46 Vict. c. 75, s. I. Bub-s. 2. ^ ^ . , . 
 
 * Beashy v. Roney, [1891], i Q. B. 509. In Lowe v. Fox (15 Q. B. D. 667) it was 
 decided soon alter the passing of the Act of 1882 that a married woman could 
 maintain an action alone for tort, the right to bring the action for which had accrued 
 before the Act came into force, though sect. 22 of the Act preserved existmg 
 rights. 
 
 * Wilkinson v. Gibson, L., R. 4 Eq. 162. 
 ° Sects I, 2, and 5. 
 
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204 HUSBAND AND WIFE. [part i. 
 
 Assigmueut of With her husband, a valid assignment of her reversionary choses. 
 i^'reversi'oT ^ Joi^* assignment by the wife and her husband of a chose in 
 Joint. reversion, unless it fell into possession during coverture, had no 
 
 further period of operation than that of the coverture. And 
 Sole, by hns- because the husband could give no greater interest in the property 
 ^^^^' than he possessed, it followed that his sole assignment put his 
 
 assignee in the same position as that of himself ; so that if the 
 husband survived the wife, the assignee was entitled to the pro- 
 perty on the husband taking out administration to her estate, bub 
 not otherwise.' If the reversionary interest became vested in 
 possession during coverture, the husband's assignee took it, subject, 
 in the case of equitable choses, to the wife's equity to a settle- 
 ment. If the wife survived the husband, she would be entitled 
 to the reversionary fund both as against- her husband's sole and 
 their joint assignee.^ A married woman having a reversionary 
 interest in personalty, though she obtained an assignment of the 
 interest of every other person in the fund, did not convert her 
 reversionary interest into an interest in possession, nor enable her 
 husband to do indirectly what he could not do directly, viz., 
 assign her original interest so as to bar her right by survivor- 
 ship ; ' and if the reversionary fund waiS in court, it was not paid 
 out, though the consent of all other persons interested in it was 
 obtained.'' 
 Power of dis- In equity she had a full and complete interest in her reversion- 
 Maiins''Act "'^ ^^7 personal property to her separate use, and could dispose of it 
 1857- by deed, as she pleased.* Where the property was reversionary in 
 
 its nature and not settled to her separate use, she did not possess 
 this disposing power over it ; but under Malins' Act,* if she or 
 her husband in her right become entitled by virtue of any instru- 
 ment made after December 31, 1857,' to reversionary personal 
 property of any description, she might, unless restrained from 
 anticipating, or bound by her covenant to bring such property into 
 settlement, dispose of her interest in it (with the concurrence of 
 her husband) by deed acknowledged in the manner required by 
 the Fines and Eecoveries Act, 1834.^ The concurrence of the 
 husband might be dispensed with for certain reasons, such as 
 living apart from his wife and the like.' A due execution of an 
 
 1 Sornsby t. Lee, 2 Madd. 16. 
 Le Vassew v. Scratton, 14 Sim. n6 ; Purdew v. Jadcson, I Euss. I ; see also 
 Horner y. Morton, 3 Euss. 65, a.ui Stife v. Everitt, 5 L. J. Ch. J38. 
 ' White V. Herring, 2 Ph. 731. 
 ^ lUd. _ 
 
 ^ Sturgis v. Oo7y, 15 Ves. 191. 
 " 20 & 21 Vict. c. 57. 
 
 ' See He Elcom. Layhorn v. Oroves-Wright [1894], i Ch. 303. 
 ^ See ante, p. 189. 
 " Be Sogers, L. E. i 0. P. 47 ; but see Ex parte Cockerell, 4 0. P. D. 39. 
 
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CHAP. X.] PROPRIETARY RIGHTS OP SPOUSES. 205 
 
 assignment under this Act was a complete discharge of all marital 
 rights over it.' The disposing power under this Act extends to a 
 chose in action — e.g., a policy of insurance.^ Where a husband 
 executed a document in which it was recited that both he and 
 his wife agreed to settle certain reversionary property which was 
 not within the application of Malins' Act, and which contract was 
 by reason of the Statute of Frauds not binding on the wife but 
 she recognised it and elected to have the benefit of it, she was 
 held bound by the settlement.' 
 
 The effect of the Married Women's Property Act, 1882, is to ESeotofM.w. 
 render her reversionary property, equally with her realty and her ^' '^°'' ^^^^' 
 personal chattels, her separate property. As before remarked, she 
 need not now dispose of it with the formalities of a deed acknow- 
 ledged, nor obtain the concurrence of her husband ; for it would 
 be idle to give him a power of vetoing his wife's disposition of 
 property in which he has no interest. At any rate his potential 
 interest as administrator of his wife in the event of her dyinw 
 intestate is too remote to be taken into consideration. But whether 
 the court will under all circumstances dispense with the woman's 
 acknowledgment remains to be seen." Of course women married 
 before January i, 1 8 8 3 , whose title to their reversionary property 
 accrued before that date, are under the old law and must fulfil its 
 requirements. 
 
 The interest of a married woman in her chose in action* is interest of 
 not divested by reason of the coverture ; but it continues to be ^oseTi/ac- 
 her property till her husband succeeds in reducing it into posses- *'''°- 
 sion.' Her interest in her choses in action under the present 
 state of the law depends, as in other matters, upon the date of 
 her marriage. 
 
 If a woman has been married, or her title to the chose in Effect otreduo- 
 action not settled to her separate use has accrued before the session before 
 Married Women's Property Act, 1882, came into force, her ^^'^^"^p^/^^j^ 
 interest in it would depend upon whether or not it was reduced 1882, came into 
 into possession by her husband during coverture ; if he does 
 reduce it into possession, and no doubt he will be entitled to take 
 «teps to do so since the Act has come into force, her interest in 
 it is gone. If he fails to reduce it during coverture into his 
 possession, her right to it by survivorship remains good and 
 
 ]^ Be Batdielor, L. K. 16 Eq. 481. 
 
 - Witherby v. Eachham, 60 L. J. Ch. 511. 
 
 ^ Greenhill v. North British and Mercantile Insurance Company [1893], 3 Cb. 
 474 ; but see ffarle v. Jarman [1895], 2 Ch. 419. 
 
 " See ante, p. 192. 
 
 ' For a definition of a ctose in action, see ante, p. 198. 
 
 * Piirdew V. Jackson, 1 Euss. I ; Prole v. Soady, L. E. 3 Cb. App. 220. For what 
 constitutes reduction into possession by him, see ante p. 199. 
 
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206 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Deposit of 
 stock, &o„ in 
 wife's name 
 primd facie 
 
 property. 
 
 unaffected. If she has married, or her title to the chose in action 
 has accrued since the date of the Act coming in force, her 
 interest in it is complete, and in no way subject to marital rights. 
 But if she die intestate, and without having disposed of her 
 choses in action during her lifetime, it is submitted that her 
 husband's right to administer to them will be fully recognized. 
 If, then, a chose in action accruing to a married woman before 
 January i, 1883, is to be reduced into possession, and an action 
 is necessary for the purpose, it mast be brought in the names 
 both of husband and wife ;' and on judgment being given for 
 them in the action, the title of the husband to it will be com- 
 plete. But under the present state of the law, the interest of a 
 married woman in her choses in action of every kind is the same 
 as that in her specific chattels. Marriage does not operate to 
 divest her of her interest in them, or give her husband a power 
 to reduce them into possession, and acquire ownership in them. 
 If she has recourse to legal proceedings to reduce them into 
 possession, she alone may bring the action, and the husband 
 need not be joined.^ 
 
 The Married Women's Property Acts, 1870 and 1882, have 
 effected an important alteration of the law in favour of married 
 women in respect of certain choses in action ; and the latter Act 
 stUl more extends their privileges. In the future " all deposits 
 in any post-office or other savings-bank, or in any other bank, all 
 annuities granted by the Commissioners for the Eeduction of the 
 National Debt, or by any other person, and all sums forming 
 part of the public stocks or funds .... which at the com- 
 mencement of this Act are standing in the sole name of a 
 married woman, and all shares, stocks, debentures, debenture- 
 stock, or other interests of or in any corporation, company, or 
 public body, municipal, commercial, or otherwise, or of or in any 
 industrial, provident, friendly, benefit, building, or loan society, 
 which at the commencement of this Act are standing in her 
 name,^' ^ or which after its commencement " shall be allotted to 
 or placed, registered, or transferred in or into or made to stand 
 in the sole name of any married woman, shall be deemed, unless 
 and until the contrary be shown, to be her separate property."* 
 It is the same with investments standing in the name of a 
 married woman jointly with any person or persons other than 
 her husband ;^ and the latter need not be made a party to join 
 in the transfer of any such sums, deposits, or securities." A 
 
 1 See Milnea v. Millies, 3 T. E. 631. 
 
 2 Sect. I, sub-s. 2, and sect. 24. ' Sect. 6. * Sect. 7. ' Sect. 8. 
 
 '^ Sect. 9. This renders the case of Howard v. Bank of England (L. K. 19 Bq. 
 295) no longer law. 
 
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CHAP. X.] PEOPPIETARY EIGHTS OF SPOUSES. 207 
 
 deposit by a husband of money in his wife's name will primd 
 facie be deemed to be her separate property,^ though whether 
 she is or is not entitled to the deposit may remain a question to 
 be determined;^ the onus of disproof of her title is shifted upon 
 her husband, or those claiming under him. If the married 
 woman has fraudulently taken her husband's money and invested 
 or deposited it in her own name, he may reclaim it, and have 
 it transferred and paid to himself.' 
 
 The interest of a married woman in the property which she choses in 
 holds in a representative capacity as executrix or administratrix, ""^''^ ''''"'*• 
 has been set out and dealt with elsewhere,'' 
 
 In order to complete the subject-matter of this chapter, 
 reference is necessary to that interest which a wife has in her 
 property, which springs up under certain circumstances. This 
 interest is called the Wife's Equity to a Settlement. 
 
 The Wife's Eqidty to a Settlement. — In the preceding sections of Wife's equity 
 the present chapter the Common Law operation of marriage in toasettiemeat. 
 favour of the husband has been fully set out and discussed. Now 
 equity, while recognizing this right of the husband to the personal 
 property of his wife not settled to her separate use, and the whole 
 interest in which vested in him modified it in her favour in a modification 
 order to prevent him from alienating and disposing of all the \^^ ^^^°^ 
 property to which he might become entitled jure mariti, whether bif?band to 
 to satisfy his own caprice, or on insolvency, to satisfy the claims able chosee in 
 of his creditors. It accordingly gave to the wife, under certain fnto™ 
 circumstances, the right to be suitably provided out of her own ^" 
 equitable choses in action. This right is called the wife's equity 
 to a settlement.^ It has been held that this equity was only 
 recognized and enforced in those cases in which the husband as 
 plaintifi was bound to have recourse to the courts of equity in 
 order to obtain possession of the property ; and the courts 
 enforced their favourite maxim that " he who seeks equity must 
 do equity ; '■* and compelled the husband and those claiming 
 under him to make a settlement of part of the fund on the wife 
 and children.* Specific chattels which the husband himself could 
 reduce into possession were not effected by the equity. The equity 
 
 ^ Mews y. Mews. 15 Beav. 529 ; Parker v. Leclimere, 12 Ch. D. 256. 
 
 2 See Lloyd v. Pughe, L. K. 8 Ch. App. 88. In this case the wife was held not 
 to have any iuterest in the deposit in her name, the husband having deposited the sum 
 in her name for his own convenience. . 
 
 ' Sects. 10 and 17. As to disputes between husband and wife in respect of their 
 property, see post, chap. xv. 
 
 * Seejiosi, chap. xiv. Contracts of Married Women. 
 
 = Murray v. Elihanh, 10 Ves. 84 ; i W. & T. L. C. 493. . 
 
 « BosvU V. Brander, I P. Wms. 459. The Court of Bankruptcy seemingly has an 
 equitable jnrisdiction to insist upon a settlement on behalf of the wife. Hx parte 
 Coyaegame, i Atk. 192 ; Ex parte Norton, 8 De G. M. & G. 258. 
 
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208 HUSBAND AND WIFE. [part j. 
 
 attaches when a decree for a settlement or a contract for a settle- 
 ment is made ; ' but an action brought by a third party/ or a 
 decree for administration^ is insufficient. 
 Under M.w. The Married Women's Property Act, 1882, has altogether 
 wife need not done away with the necessity for enforcing this equitable right 
 enforce her Qf ^j^q ^^fg ^q share and participate in her own equitable choses 
 
 eqnitable '■ . . , , ,, 
 
 right. in action, by abrogating the marital right over all and every 
 
 species of property which may belong to her at the time of 
 marriage^ or devolve upon her after marriage ; yet as this change 
 has been but recently effected, and existing rights are left un- 
 touched, a knowledge of the principles applied by the courts in 
 considering the subject is not unnecessary. 
 Equity at- This right to a settlement was an obligation which the Court 
 
 right to receive fastened, not upon the property of the wife, but upon the right to 
 perty '^^'^ P™" receive it, or, in other words, rested on the control which a court 
 of equity, standing in loco parentis, ever exercises over property 
 falling under its dominion. Strictly speaking, an equity to a 
 settlement arises when a husband makes a claim to the wife's 
 property in a court of equity ; upon his making such claim he is 
 bound to do equity ; and if the wife be not properly provided for, 
 the court, at the instance of the wife, will direct a settlement 
 of the whole or a part of her property, according to the circum- 
 stances, upon her and her children. But the wife herself, as a 
 plaintiff, may take proceedings in a court of equity to assert that 
 equity, whether before or after a claim has been made by her 
 husband.'' The consequence of this is that the wife's equity 
 prevails over any right of retainer of a legacy left to her on- the 
 part of an executor for a debt due to his testator from her hus- 
 band.* Equity did not interfere where the husband had the 
 legal title by which be could obtain possession of his wife's per- 
 sonal estate," and the husband is entitled, where he can, to lay 
 hold of his wife's property, and the court will not interfere.' 
 In \7hose The court exercises its unfettered discretion as to amount ; and 
 ■enforced. °o* fo^" ^^^ benefit of the wife only, but for her children ; limi- 
 tations which are wholly inconsistent with a right of property in 
 her.^ This equity will be enforced not only against the husband, 
 but against his trustee in bankruptcy, or a general assignee for 
 the payment of his debts, who will be compelled to make a 
 
 1 See Wallace v. Auldjo, 2 Dr. &. S. 216. ^ Baker v. Bayldon, 8 Ha. 210. 
 ' De la Garde v. Lempriere, 6 Beav. 344. 
 
 * Wortham v. Pemherton. i De G. & S. 644 ; and see Me Briant, Poulter v. Shachel, 
 37 Ch. D. 471. 
 
 * lie Briant, Poulter v. Shachel {uhi swp.). 
 ^ Jewson V. Moulson, 2 Atk. 420. 
 
 ' Per Eldon, L. C, in Hurray v.ElibanJc, 10 Ves. 84-90. 
 8 Peach,. Sett. 158. 
 
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CHAP. X.J PROPRIETARY RIGHTS OF SPOUSES. 209 
 
 settlement,' and against an assignee for valuable consideration/ 
 though the position of the latter is more favourable than that of 
 the husband, or his general assignee.' 
 
 BigUs of the Children. — This equity to a settlement, though Children take 
 strictly personal to the wife, was always extended on behalf of mother °^ 
 her children,'' whether they were the issue of a former or the 
 existing marriage, and of full age, and already provided for.^ 
 Though a wife might have waived her right altogether, she could 
 not have availed herself of it for herself and have given it up for 
 them ; ' but if she died before asserting her right, her children 
 could not insist upon a settlement.' She might have waived 
 her right before the settlement was actually completed, and so 
 defeated the claims of her children, who took no interest inde- 
 pendently of her contract, or a decree of the court in her favour. 
 But if she either entered into such a contract or had had a decree 
 made in her favour, and died without waiving her right (and 
 she could have waived it before it was actually made),^ their 
 interests were preserved, though they were not named in the 
 decree.' Their rights, however, did not exist where their mother, 
 after action brought, died before the decree was made,'" and were 
 lost where they had acquiesced for a long time in the fact of 
 their omission from the settlement.'' 
 
 To what Property the Eq^dty Attaches. — The equity of the wife 
 attached to real and personal property of an equitable nature to 
 which she became entitled before as well as after marriage,"* 
 but not such as vested without more in her husband jure mariti ; 
 though if a purely legal estate became from collateral circum- 
 stances the subject of a suit in equity the wife's right at once 
 attached.'' Since the Judicature Act, i873,''' it would seem that 
 the claim by a wife to her equity in a purely legal estate would 
 have effect given to it ; in other words, it is immaterial whether 
 
 1 Sturgis v. Champneys, 5 Myl. & Cr. 97. See also Carr v. Taylor, 10 Ves. 574, 
 in which it was decided that the wife's equity was paramouDt to a light of set-off in 
 respect of a debt due from her husband ; but it is otherwise where the wife is joint 
 legatee of a residue, and her husband as executor wastes assets, and is unable to pay 
 bis debts to the estate. Knight v. Knight, 18 L. E. Eq. 487. 
 
 ^ Macaiday v. Phillips, 4 Tes. 19. 
 
 ^ hUiott V. CordeU, S Madd. 149. 
 
 * Lady Elvbank v. Montolieu, 5 Ves. 737 ; Johnson v. Johnson, i J. & \V. 472 ; 
 see Roberts t. Cooper [1891], 2 Ch. 348, per Kay, L. J. 
 
 ' Gonington v. OiUiatt, 46 L. J. Ch, 61. 
 ' Briggs v. Chamberlain, 1 1 Ha. 69. 
 ' Striven v. Tapley, 2 Ed. 337. 
 
 * Fraser v. Taylor, 2 Euss. & My). 190. 
 
 ' Lady EUbank v. Montolieu [ubi sup.). , 
 
 " Wallace v. AvMjo, I Di-. & Sm. 216 ; see also De la Garde v. Lempriere,6 Beav, 
 344 ; Baker v. Bayldon, 8 Ha. 210, overruling Steinmetz v. Halthin, i G. & J. 64. 
 
 " Johnson V. Johnson, i J. & W. 472. ^^ Barrow v. Barrow, 18 Beav. 529. 
 
 " See remarks of Malins, V.C, in Bvffles v. Alston, 19 L. R. Eq. 539, 540- 
 . " Sect. 25. 
 
 
 
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210 HUSBAND AND WIFE. [paet i. 
 
 her claim arises in respect of a legal or equitable estate.' This 
 right had been long insisted upon in respect of every species of 
 unsettled personalty of the wife of which a settlement could be 
 made f accordingly, where the property of the wife was equitable, 
 and so not recoverable at law, the husband or his assignees could 
 only have obtained it upon the terms of making a settlement 
 upon the wife and her children, if she required one to be made.' 
 But the right did not attach when the wife's interest in pure 
 personal estate was reversionary in its nature.^ Where she takes 
 a joint interest with the husband the equity does not arise.' 
 This right was extended to realty by Lord Oottenham in the 
 important case of Sturgis v. Champneys^ in which he reviewed the 
 authorities, and admitted the claim of the wife to have a settle- 
 ment out of her real estate. The following are a few instances 
 of different kinds of property to which this right was attached : — 
 A legacy charged on land with a power of entry and receipt of 
 the rents and profits,' a trust term for years,' an equitable estate 
 tail," and an estate in fee, but not so as to aflPect the husband's 
 possible estate by the curtesy." 
 Distinction A distinction has been made between those cases in which the 
 
 takernn estate ^^^^ takes an obsoluU interest and those in which she takes a life 
 absolutely, and interest only. It has been seen that where her interest is abso- 
 
 where for life ... 
 
 only. lute, her right against her husband and his assignees, whether 
 
 general or particular, and for valuable consideration, has been 
 fully established, not only on her own behalf, but on that of her 
 children." Where the wife takes an absolute interest her right 
 Where wife's to a provision for herself and children is independent of the 
 only. acts and conduct of her husband ; but when she takes a life- 
 
 interest only, this right arises from the non-fulfilment by him of 
 his obligations, and so is dependent on his acts and conduct. 
 Thus her right in the latter case was not always maintained. At 
 first it was doubted whether she was entitled at all to any settle- 
 ment out of an annuity or a life-interest, but that she may be so 
 entitled is now settled.'^ 
 
 ^ Per North, J., in FowTce v. Draycott, 29 Ch. D. 1013. 
 
 ^ Barrow v. Barrow, 25 Ij. J. Ch. 267. 
 
 ' Milner v. Calmer, 2 P. Wm. 639. ' 
 
 * Osborn v. Morgan, 21 L. J. Ch. 318. 
 
 6 Ward T. Ward, 14 Ch. D. 506. 
 
 ^ S Myl. & Cr. 97 ; see also Freeman y. Fairlie, II Jur. 447. 
 
 '' Duncomhe v. Greenacre, 28 Beav. 482. 
 
 '^ Hanson v. Keatiny, 4 Ha. i. In this case not only aa against the husband, 
 but as against his assignee for valuable considei'ation. This ovei rules the supposed 
 decision in Sir Edward Turner's Case, i Vein. 7. For the manner in which the 
 .judgment in this latter case was delivered, see Macq. H. & W. 92, et seq, 
 
 " Life Assurance of Scotland v. Siddal, 4 L. T. 311. 
 '" Bmith V. Matthews, 30 L. J. Ch. 445. 
 
 " Tidd V. Lister, 23 L. J. Ch. 249, on appeal; Scott v. Spashett, 3 Mao. & G. 599. 
 '^^ Lumh V. Milnes, 5 Ves. 517; Jacobs v. Amijatt, i Madd. 37611.; Stwrgisv. 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 211 
 
 The question of her equity may arise either between the wife As beUvoen 
 and her husband or between her and her husband's general busUnl 
 or particular assignees or creditors. Where the wife is livino- 
 with her husband, who maintains her, and is neither bankrupt 
 nor insolvent, she is not entitled to this equity, though he is in 
 embarrassed circumstances, and has nothing to support her except 
 her income ;' but she is entitled when deserted by him.^ 
 
 Where the person against whom the wife could enforce her right Au between 
 is a particular assignee for value of the husband, she will not be TuiarTsilMes 
 permitted to have a settlement out of her life-interest decreed in °^ ii"sband ; 
 her favour.' This assignment of the life-interest of a married 
 woman, unless within the provisions of 20 & 2 1 Vict. c. 5 7, cannot 
 operate for any longer period than the joint lives of husband and 
 wife ; and i£ the interest accrues to the wife after coverture, it is 
 reversionary in its nature, and unaffected by the assignment.'' 
 But when the husband assigns his wife's interest generally for general 
 the benefit of his creditors, her equity will be recognised and ^^^'saees. 
 enforced.'' 
 
 To sum up — the wife has an equity when the interest becomes 
 vested in the husband's general assignees, or trustee in bank- 
 ruptcy, but not where it is vested in a particular assignee for 
 value, though the assignment "in the latter case, unless the woman 
 acknowledge her consent, will operate only during the coverture. 
 The wife also will not be entitled where there has been no assign- 
 ment, and the husband is maintaining her. 
 
 The Amount to he Settled. — The amount to be settled is abso- Amount to be 
 lutely in the discretion of the court, and depends upon the 
 circumstances of each case that is brought before its notice ; " 
 and equally so where the wife's interest is absolute, or for life.' 
 As between the husband and wife, the court will take into con- 
 sideration the amount of the wife's fortune already received by 
 the husband, or any previous settlement which may have been 
 made,^ and where the husband has received half the fund he has 
 been deemed disentitled to receive any more.^ Generally speaking, 
 where the husband has been guilty of misconduct,'" such as adul- 
 
 Champneys, 5 Myl. & Cr. 97 ; Squires v. Aslifo-rd, 23 Beav. 132 ; Taunton v. 31orrls, 
 II Ch. D. 779. 
 
 ^ Vaughan \.Buck, 13 Sim. 404. 
 
 2 Gilchrist v. Cator, i De G. & Sm. 188. 
 
 ' Wright V. Morley, 11 Ves. 11 ; EUiott v. Cordell, 5 Madd. 149 ; Tidd v. Lister 
 {ubi sup.) ; Be Duffy's Trusts, 28 Beav. 386. 
 
 * Stiffe V. Everitt, 5 L. J. Ch. 138. 
 
 ' Spirett V. Willows, L. R. i Ch. App. 520. 
 
 ' &irett V. Willows (ubi sup.). 
 
 ' Taunton v. Morris {ubi sup.)- 
 
 8 Se Suggitt's Trusts, L. R. 3 Ch. 215 ; Eoxall v. Boxall, 27 Oh. V. 220. 
 
 ' Scott V. Spashett (ubi sup.) ; Ward v. Yates, i Dr. & S. 80. 
 
 M DunUey v. Dunhley, 2 De G. M. & G. 390. 
 
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212 HUSBA]SrD_ AND WIFE. [parti. 
 
 tery, cruelty, or what may be termed aggravated misconduct,' or 
 is insolvent/ or the fund is small,^ the whole will be settled on the 
 wife. The court has not laid down any hard-and-fast rule, and it 
 would be quite out of place in a work of this kind to enumerate 
 the different cases in which it has exercised its discretion; but 
 the authorities, including some of the later cases, are collected in 
 "White and Tudor's Leading Oases, vol. i. pp. 507, et seq.; and 
 Watson's Compendium of Equity, pp. 306 et seq. 
 Waiver and Waiver and Belease of Equity to the Settlement. — The wife may, 
 
 .equUy by wif e. ^^ ^^^ please. Waive her equity to a settlement as well as any 
 agreement made in respect of it, but only on proof of her free 
 consent by separate examination by the court itself.'' She will 
 not be permitted to do so as long as she is under age,^ or a ward 
 of court, and has eloped or married without consent." Where the 
 wife is willing to forego this right, and the fund exceeds ;£^200,' 
 her consent must be formally taken upon her examination in 
 court/ or under a commission issuing from the court, which 
 generally happens when she is abroad.' When the examination 
 is proceeding, neither the husband nor any one connected with 
 him should be present.'" The wife may revoke her consent at any 
 time before the actual transfer;" even though an order of the 
 court has been made for payment in accordance with it.'^ Before 
 the property of the wife will be paid over or assigned to the 
 husband, the court must be satisfied by affidavits that there is no 
 settlement on the marriage affecting the property in question; 
 or if there be a settlement, it must be produced, so that the 
 court may form its own judgment on the point.'' The amount of 
 the fund must be ascertained.'^ 
 Power of mar- Before the beginning of the year iS^^S, a married woman was 
 
 ried woman , -^^ t ^ ■ i , • . • i 
 
 under 20 & 21 not permitted to part with her reversionary interest in personal 
 diepraeof're" Property not settled to her separate use; but by 20 & 21 Vict, 
 versionaryper-c. 57 (known as Malins' A.ct), she may with the concurrence of 
 
 ' Reid V. Reid, 33 Ch. D. 220. 
 ^ Scott y. Spasliett, 3 Mao. & G-. 599. 
 " Be Kincmd's Trusts, 16 Jur. 106. 
 ^ Wright v. Sutter, 2 Yes. 673. 
 
 ^ Stulhs V. Sargon, 2 Beav. 496 ; Ahraliam v. Neiocome, 12 Sim. i;66 : SUpway 
 V. Ball. 16 Ch. D. 376. 
 
 ^ Staclcpoole v. Beaumont, 3 Ves. 89. 
 
 ' Elworthy v. Widcstead, 1 J. & W. 69 ; Veal v. Veal, L. E, 4 Eq. 115. 
 8 Beaumont v. Carter, 8 L. T. 685. 
 
 » Tasburgh's Case, i V. & B. 507 : but see the course pursued in Minet v. Eyde, 
 2 Bro. 0. C. 663. 
 
 ^^ lie Bendyshe, 3 Jur. N. S. 727. 
 " Penfold y. Mould, L. E. 4 Bq. 562. 
 -2 Watson V. Marshall, 17 IJeav. 363. 
 1^ Britten v. Britten, 9 Beav. 143, 
 
 " Sperling v. Bochfort, 8 Ves. 180 ; see also Packer v. Packer, i Coll. 92. The 
 usual form of settlement adopted by the court is set out in the case of Spirett y. 
 Willows, L. E. I Cli. App. 520. 
 
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CHAP. X.] PROPRIETARY RIGHTS OF SPOUSES. 213 
 
 her husband (except where under 3 & 4 Wm. IV. c. 74, s. 91 
 his concurrence may be dispensed with),^ and under a deed or 
 instrument duly acknowledged (not being a settlement or agree- 
 ment for a settlement on her marriage)/ dispose of her personal 
 estate, to which she is entitled in reversion, and also release her 
 equity to a settlement, so as to give the assignee for value an 
 absolute title without any deduction in respect of claims upon the 
 husband's interest in the wife's right. 
 
 When the Uqnity may he Defeated. —There are many circum- -when the 
 stances under which this right of the wife does not arise ; some defeated 
 by what may be termed the operation of law, and others the acts 
 of the wife herself, or her husband. Thus, she has no equity 
 where the fund has been made the subject of a settlement, or is 
 affected by a provision in it,^ or where an adequate settlement 
 has been made upon her,^ or where the disposal of the fund is 
 governed by a foreign law which does not recognise this equity.* 
 The equity may be barred by a disposition by the wife under the 
 Fines and Recoveries Act or Malins' Act. It may also be barred 
 by the receipt by the husband or his assignees of the fund, or by 
 a transfer of it by trustees before action brought;" but if an action 
 has been commenced her rights will be preserved.' The wife's 
 conduct ia assisting her husband to obtain possession of a fund 
 which has been assigned by him will disentitle her to the equity 
 as against the assignee.^ Again, it will not be recognised where 
 she is amply provided for,^ or where at the time of her marriage 
 she owed more than the whole amount of her property, and her 
 husband subsequently becomes bankrupt, and the claim to the 
 fund is disputed between herself and his assignees.'" In Barnard 
 V. Ford and Carrich v. Ford^^ it was held that the wife's equity 
 could not be sustained against her own ante-nuptial creditors in 
 proceedings in bankruptcy against her husband. It was further 
 decided that under such circumstances her equity can only arise 
 when an amount equal to the amount of her debts has been 
 provided out of her estate, and therefore the creditors of the 
 bankrupt against whose estate the wife's debts had been proved, 
 
 ^ See ante, p, 190. 
 
 '^ OlarU V. Green, 13 L. T. 38. 
 
 ^ Brett V. Forcer, 3 Atk. 405 . 
 
 * If the settlement is inadequate, such inadequacy must he result of express stipu- 
 lation. Salwey V. Salwey, Amh. (i<)2; Spirettv. Willows {ubi sup.). 
 
 ' Sawer v. Shute, I Anst. 63 (Prussia) ; Av.struther v. Adair, 2 Myl. & K. 513 
 (Scotland) ; Be Marsland (Isle of Man), 55 L. J. Ch. 581. 
 
 * Murray v. Lord Elibanh, 10 Ves. 84. 
 
 ' De la Garde v. Lempriere, 6 Beav. 344. 
 
 ^ Bdberts v. Cooper [1891], 2 Ch. 335. 
 
 ' Giacometti v. Frodgers, L. E. 8 Ch. 338. 
 ^^ Bonner v. Bonner, 17 Bp.av. 76. 
 " L. E. 4 Ch. 247. 
 
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214 HUSBAND AND WIFE. [pakt i. 
 
 can set aside a post-nuptial settlement of such property. 
 Lastly, it does not arise in such instances as where the wife has 
 made false and fraudulent representations respecting the fund 
 over which she claims her equity,' or is living in adultery apart 
 from her husband.^ 
 
 1 Ee Lush's Trusts, L. E. 4 Ch. 591. 
 
 2 Oarr v. Eastahrooke, 4 Ves. 146 ; but see Be Lewin's Trusts, 20 Beav. 378, and 
 Ball V. Coutts, : V. & B. 302, in which the wife was award of court. This rule seems 
 to be otherwise when both husband and wife are living in adultery : Oreedy v. 
 Lavender, 13 Beav. 62. 
 
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CHAPTER XI. 
 
 PEOPEIETAEY EIGHTS OF THE SPOUSES OEEATED 
 BY THE TEEMINATION OF COVEETUEE. 
 
 Eeal Peopeett : ^■^'^^ 
 
 INTBEEST OF HUSBAND IN WIFE'S REALTY: CUETBST 
 
 lUITIATE AND CONSUMMATE 2l6 
 
 CUETEST Rights tjndee M. W. P. Act, 1882 ... 217 
 
 INTEEEST OP WlPE IN HUSBAND'S EbALTX : DOWBE : 2l8 
 
 Definitions 218 
 
 Requisites 219 
 
 To WHAT it Attaches 219 
 
 rEEEBENCH 221 
 
 Rights and Liabilities op Dowagbe ... 221 
 
 How Baeeed 222 
 
 Jointuee : Definitions 224 
 
 Limitations to Bae Dowee 226 
 
 DowBE Act, 1833 227 
 
 Foefeitueb, Waivee 230 
 
 Peesonal Pkopbety : 
 
 Right of Husband to Administbe to Wife's Peesonal 
 
 Estate 231 
 
 Oeigin of Eight .231 
 
 DiPPEEENCB BETWEEN HUSBAND TAKING JUEE MAEITI 
 
 and as Administeatoe 232 
 
 Right undee M. W. P. Act, 1882, to Administbe to 
 
 all Kinds op Wife's Peopeety .... 233 
 
 Legal Peesonal Repeesentative op Maeeibd Woman 235 
 
 Right op Wife to Administbe to Husband's Estate : 236 
 Geant op Administration to Widow in Discebtion op 
 
 the Couet 237 
 
 Widow's Shaee undee Statute op Disteibutions . 237 
 
 When Eight of Widow Baeeed 238 
 
 When Widow's Right to Whole Estate of Intestate 
 
 and Childless Husband 239 
 
 SuMMAET 239 
 
 In this chapter the rights of the spouses in each other's property 
 which come into existence at the moment of the termination o£ 
 the coverture by death will be discussed. As in the earlier chapter 
 dealing with their mutual rights created by coverture, there will 
 
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216 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Eeal property. 
 Interest of 
 husband in 
 wife's realty. 
 Curtesy 
 initiate. 
 
 Consummate. 
 
 Seisin. 
 
 be two main sections ; the first dealing with Eeal Property, and 
 the second with Personal Property. 
 
 Section i. 
 a. Interest of Husband in his Wife's Bealty. 
 
 The husband has an inchoate right to a life-interest in his 
 wife's freehold ' estates of inheritance on the birth of a child 
 capable of inheriting them ; and the death of the child before 
 the determination of the coverture, or before the seisin of the 
 wife, does not afEect his right. This inchoate right may be turned 
 into a consummate or perfect right by the death of the wife, in 
 cases where the property has not been disposed of during the 
 coverture. There were four requisites for an estate by the curtesy, 
 namely, a valid marriage ; birth of a child capable of inheriting 
 the lands ; sole seisin of the wife during coverture ; and death of 
 the wife. The marriage must be one recognised by the law of the 
 land. The child must be born alive, though it would be sufficient 
 if it only survived its birth a few moments :^ it must also at the 
 time of its birth be capable of inheriting ; thus, if the estate was 
 limited in tail male the birth of a daughter would not cause the 
 right to spring into existence. 
 
 There is in law a twofold seisin, a seisin in deed, and a seisin 
 in law ; and the seisin for curtesy is that " in deed," " if it may 
 be attained unto." ^ Thus, there must be some sort of entry 
 into possession by the wife, if possible ; and there is no inchoate 
 right to curtesy until the wife becomes entitled to an estate of 
 inheritance in possession.* In some cases the seisin must neces- 
 sarily be " in law," as where the estate consists of an incorporeal 
 hereditament, such as an advowson in fee, or a rent-charge, of 
 both of wiich a husband may have his curtesy.^ 
 
 Entry is not always required where a seisin " in deed " is 
 impracticable, and the husband was held entitled by the curtesy 
 to lands on which there were leases for years existing, and a 
 rent which had accrued descended on the wife, who survived 
 after the rent day accrued, though she made no entry, nor 
 received any rent at all." Momentary seisin, too, is enough ; ' 
 and where, through no fault of the husband, actual seisin has not 
 taken place, as, for instance, where a devise to a daughter who, 
 
 ' The husband may have cui-tesy out of her copyholds if it is the custom of the 
 manor that he may have it ; but the custom must be strictly observed. 
 2 Co. Litt. 29 b. 3 lUd. 
 
 * GihUns v. Eyden, L. E. 7 Eq. 371. 
 » Go. Litt. 29 a ; Dethiclc v. Bradburne, 2 Rid. 1 10. 
 " De Grey v. Bichardson, 3 Atk. 469. 
 ' Parker v. Carter, 4 Ha. 400. 
 
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CHAP. XI.] PROPRIETARY RIGHTS OF SPOUSES. 217 
 
 dies leaving issue in the lifetime of the testator, takes effect by- 
 force of section 33 of i Vict. c. 26 (The Wills Act, 1837); in 
 such a case the husband, who by no possibility could have obtained 
 seisin during the lifetime of the testator or of his wife, shall yet 
 have his curtesy.' The tenant by the curtesy may exercise 
 the powers conferred by the Settled Estates Act, 1877,^ and 
 the still wider powers of the Settled Land Act, 1882;^ in the 
 latter case by means of the fiction that his estate arises under a 
 settlement made by his wife.* 
 
 The husband's curtesy right attaches not only to her legal but Curtesy 
 also to her equitable estates.^ Where the wife's estate was gqu^^bie*" 
 settled to her separate use, legally or by way of trust, it has been estates. 
 a contested point whether the husband's right attached to such 
 estate in the event of the wife not having disposed of it during 
 the lifetime or by will, as she might have done. It is, however, 
 now settled law that where a married woman has an estate of 
 inheritance limited to her separate use, and does not dispose of 
 it by deed or will, her husband, unless his right is expressly 
 excluded, is entitled to curtesy in respect of it." But where an 
 estate has been limited by will in trust to her for life with a 
 general power of appointment (which she does not exercise) with 
 remainder to her heirs, and she dies intestate, her husband's 
 curtesy rights do not attach, for the rule in Shelley's Case does 
 not apply so as to cause a merger of the two estates, thereby 
 creating the fee-simple in her.^ The husband's curtesy rights are Curtesy under 
 not taken away by the Married Women's Property Act, 1882, for 1882. ' 
 though the Act contains an indication to interfere with the 
 husband's rights as regards the acquiring, holding, and disposing 
 of the wife's property, it does not contain any indication of an 
 intention to exclude his rights as regards the devolution of her 
 property on the wife's intestacy.^ The statutory separate use is 
 just as much exhausted by the termination of the coverture as the 
 purely equitable separate use was before the Act passed. It is 
 just as much in the power of the wife by act inter vivos or by 
 will to defeat her husband's curtesy rights, as it is in the power 
 
 ^ Eager v. Fumivall, 17 Ch. D. 115. 
 ^ 40 & 41 Vict. u. 18. 
 
 ' 45 & 46 Vict. c. 38. For the powers conferred by these two Acts, see post, Tart 
 III., Guardian and Ward, chap vi. 
 
 * 47 & 48 Vict. c. 18, s. 8 (The Settled Land Act, 1884). 
 
 " FoUett V. Tyrer, 14 Sim. 125. t t. o t^ 
 
 8 Cooper V. MacdoncM, 7 Cb. D. 288; Appleton v. BowUy, L. E, 8 Jiq. 139; 
 Morgan v. Morgan, 5 Madd. 408 ; Follett v. Tyrer (uU sup.) ; Soberts y. JJixwell, 
 I Atfc. 607 ; Lewin, 829. The case of Cooper v. Macdonald {uU sup.) decisively over- 
 rules Seaa-le v. Greenhanh, 3 Atk. 695 ; and Moore v. Webster, L. R. 3 iiq. 267, 
 which were decided to the contrary. 
 
 ' Re Mart's Estate, Orford v. Eart, W. N. 1883, 164. 
 
 * Hope V. Sope [1892], 2 Ch. 336. 
 
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218 
 
 HUSBAND AND WIFE, 
 
 [PABT I. 
 
 urtesy on 
 divorce. 
 
 Interest of 
 wife in hus- 
 band's realty. 
 
 Dower. 
 
 Not affected by 
 M. W. P. Act, 
 1882. 
 
 Definitions : 
 Littleton. 
 
 Coke. 
 
 Bishop. 
 
 Reasons for 
 dower. 
 
 of her husband to defeat her right to dower ; and there is nothing 
 in the Act to take away the wife's right to dower in the event 
 of her husband dying without having disposed of his real estate. 
 Whether the husband will lose his right by being divorced, is 
 a point which has not yet been settled ; but, by analogy, as the 
 wife forfeits her right to dower by being divorced,' he should lose 
 his right for the like reason. 
 
 b. Interest of Wife in her Husband's Realty, — When a man 
 possessed any estates of inheritance, and married, or if after 
 marriage he acquired any such estates, and died leaving a widow, 
 she was entitled to a provision, amounting to one-third, out of 
 these estates ; and her right was called her Dower. This dowerr 
 right, as will be seen, has not nowadays much resemblance to that 
 which existed in earlier times, but still remains in a modified shape. 
 It certainly remains in the case of women married before the 
 recent Married Women's Property Act came into force ; and there 
 does not seem to be anything in that piece of legislation which 
 deprives them of their undoubted common law right. 
 
 Dower has been thus variously defined : " Tenant in dower is 
 where a man is seised of certain lands and tenements in fee- 
 simple, fee-tail general, and as heir in special tail, and taketh a 
 wife and dieth ; the wife, after the decease of her husband, shall 
 be endowed of the third part of such lands and tenements as were her 
 husband's at any time during the coverture, to have and to hold to 
 the same wife in severalty by metes and bounds for term of her 
 life."^ 
 
 " Dower, in the common law, is taken for that portion of lands 
 or tenements which the wife hath for term of her life of the 
 lands or tenements of her husband after his decease, for the 
 sustenance of herself, and the nurture and education of her 
 children."^ 
 
 " Dower is that freehold estate which is carved to the widow 
 out of the real property whereof the husband was seised at any 
 time during the coverture, of a nature to be inherited by any 
 issue which she might have had, being usually made to cover 
 one-third of the same for her life, as her right in law growing out 
 of the marriage, his seisin, and his death."* 
 
 " The reason why the law gave the widow dower will appear, 
 if we consider how the law stood anciently, for by the old law, if 
 this provision had not been made, and the party at the marriage 
 had made no assignment of dower, the wife would have been 
 without any provision, for the personal estates, even of the richest, 
 
 1 Frampton v. Stephens, 21 Ch. D. 164. - Litt. sect. 36. 
 
 ^ Oo. Lilt. 30 b. ' ^ Bish. Laws, of Marr, Worn, sect. 243. 
 
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CHAP. XI.] PEOPRIETARY EIGHTS OP SPOUSES. 219 
 
 were then very inconsiderable ; and before trusts were invented 
 which is but lately, the husband could give his wife nothing 
 during his own life, nor could he provide for her by will, because 
 lands could not be devised, unless it was in some particular places 
 by the custom, till the statute of Henry VIII." ' Strictly speaking, 
 the right to dower has nothing whatsoever to do with the nurture 
 and education of children, for the widow is entitled to it whether 
 she be childless or the mother of a numerous famUy ; it was 
 intended solely as a provision for herself. 
 
 There were originally five kinds of dower: (i) At common Different 
 law; (2) by custom; (3) ad ostium ecdesice, or at the church ^j^^r?* 
 porch; (4) ex assensu pair is ; (5) de la phis helle. This last was 
 a conveyance of tenure by knight service, and was abolished by 
 the Act of Charles II., which did away with tenure in chivalry.^ 
 The dower at the church porch (though surviving in the marriage 
 service) and ex assensu patris had long become obsolete, and were 
 finally done away with by the Dower Act, 1834.' This same 
 Act has much modified dower at common law and by custom. 
 
 There were three requisites for dower : There must have been Requisites : 
 a marriage between the man and woman ; a voidable marriage. Marriage. 
 however, not disaffirmed during the lifetime of both parties, is 
 enough to support the widow's claim ; but the marriage must not 
 be void.^ 
 
 Seisin, or possession, on the part of the husband, was for- Seisin. 
 merly a requisite. It was not necessary in all cases that the 
 husband should have entered actually on the corporeal property, 
 or enjoyed the profits of the incorporeal, in order to entitle his 
 widow to dower. But the husband must be solely and not jointly 
 entitled to the property over which dower is claimed. Since the 
 Dower Act, seisia is no longer a requisite. 
 
 Death of the husband. Death. 
 
 Dower attached to all property of which the husband was at To what pro- 
 any time seised during the coverture. " Dower may be claimed atTaJhes. 
 out of all corporeal hereditaments, and out of all incorporeal 
 hereditaments that savour of the realty ; that is, which issue out 
 of corporeal ones, or which concern or are annexed to, or may 
 be exercised within the same ; "^ thus, the widow is entitled to 
 he dowered out of rents, estovers, commons^ advowsons, fairs, tithes, 
 woods, mills, piscaries, tolls arising from public navigable rivers. 
 
 ' Note by editor of the nth edition of Co. Litt., preserved in subsequent editions. 
 Co. Litt. 30 b. 
 
 ^ 12 Car. II. 0. 24. 
 
 ' 3 & 4 Wm. IV. c. 105, s. 13. 
 
 " For what are void and voidable marriages, see ante, chap. v. 
 
 ^ I Rop. H. & W. 342. 
 
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220 
 
 HUSBAND AND WIFE. 
 
 [PAKT I. 
 
 Dower 
 
 formerly not 
 claimable 
 out of trust 
 estates. 
 
 Now 
 claimable. 
 
 Dower by vari- 
 ous customs. 
 Gavelkind. 
 
 Borough 
 
 English. 
 
 She is also dowable of mines and minerals worked in the hus- 
 band's lifetime, but not of mines unopened.' She is dowable 
 of shares in a company when they are in the nature of real 
 estate, such as those of the New Eiver.^ Where she is dowable 
 of lands which have been purchased under the Lands Clauses Act, 
 and the purchase-money (a specific portion of which is agreed 
 to be an equivalent for her right of dower) has been paid into 
 court, she is entitled to be paid the value of her right of dower 
 out of the corpus of the fund.' The widow takes the crops 
 growing from the seeds sown by her husband on the lands 
 assigned to her as dower ; she is also entitled to and may dispose 
 of emblements.'' The estate or interest of the husband must be 
 a freehold, whether an estate in fee or in tail, but not a mere life 
 or chattel interest, on the broad principle, that when the interest 
 of the husband had ceased during his lifetime, or ceases on his 
 death, the wife cannot stretch such an estate to continue for her 
 life. An estate for years might possibly last for long after the 
 husband's death, but as it is not a freehold estate, to which alone 
 at common law dower attached, the widow's right does not attach 
 to such an interest. 
 
 Until the passing of the Dower Act,^ the wife was not 
 dowable of property in which her husband had only an equitable 
 interest, for the theory that dower existed solely by force of the 
 common law was all powerful ; and as the latter did not recognize 
 trast estates, so it could not recognize dower out of them, and 
 equity did not assist the wife." She now can claim it out of 
 estates in which her husband had only a beneficial interest;'' but 
 now dower has become of little practical moment and advantage 
 to her. 
 
 Dower hy Various Customs. — Lands held in gavelkind tenure 
 are subject to dower, which amounts to one half of the husband's 
 estate so held ; but the widow's right lasts only so long as she 
 continues chaste and unmarried." The Dower Act extends to 
 gavelkind lands. ^ 
 
 By the custom of Borough English the widow takes the whole 
 of her husband's lands holden by that tenure for dower.'" 
 
 1 Diclcen v. Hamer, 29 L. J. Ch. 778. 
 
 '^ See Dryhutter v. Bartholomeio, 2 P. Wms. 127. 
 
 ^ Me Hall's Estate, L. R. 9 Eq. 179. 
 
 '' 20 Hen. III. c. 2, Statute of Merton. 
 
 5 3.& 4 Wm. IV. c. 105. 
 
 ^ Lady Madnor v. Vandehendy, Show. Pari. Cae. 69. This case arose on a ques- 
 tion of setting aside a trust term for years, which prevented Lady Radnor's dower from 
 attaching, and the House of Lords refused a decree setting it aside as against a 
 purchaser, though with notice. 
 
 ' Sect. -^. 8 Bao. ^br. Gavel. A. 
 
 '^ Farley v. Bovlmm, 30 L. J. Ch. 239. 
 
 " I Br. H. & W. 328.' 
 
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CHAP. XI.] PEOPRIETARY RIGHTS OP SPOUSES. 221 
 
 Gopylold. — ^Where the lands are copyhold in their nature the Freebench. 
 widow's right is called freebench. Before freebench can attach, the 
 husband must have been admitted as copyholder.' This right 
 depends wholly on the special custom of the manor within which 
 the lands lie/ and the custom regulates the amount which she 
 is to take — whether a third, or a half, or even the whole.^ Her 
 rights also vary in different manors as to what lands they shall 
 attach. In some freebench attaches only to those lands of which 
 her husband shall die seised, rendering her rights generally subject 
 to his disposition/ and a mere devise without a surrender to 
 the use of the will is, under section 3 of the Wills Act, a bar to 
 freebench.^ In others it attaches to lands of which he shall be 
 at any time seised. Freebench is not affected by the Dower Act," 
 consequently she is not dowable of his equitable copyhold estates, 
 nor is it liable to satisfy her husband's debts.' 
 
 Bights and Liabilities of Doiuager. — The widow is entitled to be Rights and 
 endowed immediately after her husband's death ; and dower ought dowage/. °^ 
 to be assigned to her within forty days after the happening of 
 that event. In the meantime, she is entitled at the common law, Widow's 
 confirmed by Magna Charta, to remain in her husband's capital '^^^^^^ '°^' 
 messuage, or other dwelling-house, of which she is dowable, for 
 the space of forty days, and to be supported de bonis viri. This 
 right of residence is called the widow's quarantine. But if she 
 marry during these days, or depart from her husband's house (to 
 which she will not be permitted to return for the remainder of 
 the term), her right to quarantine determines.' The widow is 
 entitled to emblements,^ but the widow of a copyholder who 
 forfeits her freebench by a second marriage is not entitled to the 
 emblements.'" Under the Settled Estates Act, 1877," a Power of 
 tenant in dower may demise any part of her dower lands (except dower under 
 the principal mansion-house, &c,) for any term not exceeding ict^jg^^'"'*^ 
 twenty-one years in England and thirty-five in Ireland, to take 
 effect in possession at or within one year next after the making. 
 Such demise must be by deed, must reserve the best obtainable 
 rent, without any fine or benefit in the nature of a fine, must 
 not be made without impeachment of waste, and, among other 
 things, must contain a condition of re-entry on non-payment of 
 rent. 
 
 ' Smith T. Adams, 24 L. J. Ch. 258. 
 ^ 2 Watk. Copy. 72. 
 
 2 Ibid. 87. <* Ibid. 73. 
 
 ^ Lacey v. Bill, Leney v. HiU, L. E. 19 Eq. 346. 
 ^ Smith V. Adams (ubi sup.) ; Powdrell v. Jones, 21 L. J. Ch. 123. 
 '■ Spyer v. Hyatt, 20 Beav. 621. ' i Br. H. & W. 363, 
 
 ' 20 Hen. III. c. 2, Statute of Merton. 
 '" Oldnd's Case, 5 Eep. 116. 
 " 40 & 41 Vict. c. 18. 
 
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-222 HUSBAND AND WIFE. [part i. 
 
 The dowager is liable for waste committed by herself or 
 strangers,' and to contribute a proportional share to keep down 
 the interest of charges on the property.^ Where there is a 
 mortgage over the property which has been assigned to her in 
 dower, she is liable to be called upon for the payment of the 
 whole debt, or to be foreclosed.'' If she discharge the demand 
 she will be at liberty to hold the estate until she be reimbursed 
 what she paid beyond her proportion as tenant for life of a third 
 part of the lands.^ 
 Assignment of The widow is entitled to have a proper quantity of lands 
 °'""^" assigned to her to satisfy her dower right ; it sometimes happens 
 
 that an excessive quantity is assigned to her ; when an excessive 
 assignment was made by the heir, when of full age, it bound him 
 and he could not be relieved against it at law,* but now in equity 
 he can be relieved. But bott formerly and at the present time 
 if he is under age when he assigns dower, he is protected against 
 the consequences of an excessive assignment, and he is entitled to 
 a readjustment of the lands." 
 Enforcement The widow may enforce her right to dower or freebench by 
 of dower. proceedings at law ; and these are now assimilated to those ordi- 
 narily taken for the prosecution of rights to land ; " or in equity.' i 
 She may claim arrears of dower, but not for more than six years.^ 
 The jurisdiction of equity has been increased by the operation of 
 the Dower Act, 1834,'" which renders the widow dowable out of 
 her husband's trust estates. 
 How dower When the right of dower had once attached to the lands of the 
 
 may e barred, jj^gijamj jf; adhered to them, notwithstanding any sale or devise 
 which the husband might make. It consequently became neces- 
 sary for the husband, whenever he wished to make a valid con- 
 veyance of his lands, to obtain the concurrence of his wife for the 
 purpose of releasing her right to dower. This release could be 
 effected only by means of a fine, in which the wife was separately 
 examined. And when, as often happened, the wife's concurrence 
 was not obtained on account of the expense involved in levying a 
 fine, a defect in the title obviously existed so long as the wife 
 lived." 
 
 " In order to prevent the inconvenient right of the wife attach- 
 
 1 Co. Litt. S3, 54 ; 2 Inst. 303 ; Fitz. N. B. 55 E. 56 F. 
 
 2 I Rop. H. &W. 371, 376. 
 
 •* See Jones v. Griffiths, 2 Coll. N. C. 207. 
 
 •• I Eop. H. & W. 372 ; Palmes v. Danhj, Prcc. Cli. 137. 
 
 5 I Br. H. & W. 381. « Ibid. 382. 
 
 ' By the Common Law Procedure Act, i85o, 23 & 24 Vict. t. 126, p. 26. 
 
 s Mundy v. Mundy, 4 Bro. G. 0. 294. 
 
 " 3 & 4 Wm. IV. c. 27, 8. 41. 
 ID Ibid. c. 106. 
 '^ Williams, Eeal Property, 296. 
 
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CHAP. XI.] PROPRIETARY EIGHTS OF SPOUSES. 223 
 
 ing to newly purchased lands, and to enable the purchaser to make 
 a title at a future time without his wife's concurrence, various 
 devices were resorted to in the framing of purchase deeds and 
 other instruments, which are here briefly set out : — 
 
 "The earliest method was to take the conveyance to the pur- Conveyance to 
 chaser (the husband) and his heirs, to the use of the purchaser a'tiusteiln'^ 
 and a trustee and the heirs of the purchaser. As dower did not joi^i'-tenancy. 
 attach to any estate of which the husband was not solely seised, 
 the wife's right was defeated by these means. The effect of this 
 conveyance was that the husband and trustee were joint- tenants, 
 while the remainder of the inheritance belonged to the purchaser 
 or husband. The defect of this plan was, that if the trustee hap- 
 pened to die during the husband's lifetime, the latter became at 
 once seised of an estate in fee-simple in possession to which dower 
 attached." ' 
 
 To obviate this and other drawbacks which attended the latter conveyance to 
 mode of conveyance, a new form of disposition was invented, which ^^^^° " 
 enabled the husband to dispose of his property without the con- 
 currence of any other person, or the possibility of his wife's dower 
 attaching ; this was effected in the following manner, and was 
 founded on the legal proposition that there is no right to dower 
 where the husband has merely a reversion or remainder after a 
 life estate. A general power of appointment by deed is in the 
 first place given to the purchaser, by means of which he is enahled 
 to dispose of the lands for any estate at any time during his life. 
 In default of and until appointment, the land is then given to the 
 purchaser for his life, and after the determination of his life- 
 interest by any means in his lifetime, a remainder (which is vested) 
 is limited to a trustee and his heirs during the purchaser's life. 
 This remainder is then followed by an ultimate remainder to the 
 heirs and assigns of the purchaser for ever, or which is the same 
 thing, to the purchaser, his heirs and assigns for ever.^ By this 
 means the union of the purchaser's life- estate and remainder 
 never took place ; but by the operation of the rule in Shelley's 
 Case,'' he had the full rights and incidents of ownership over his 
 property. 
 
 Another method of barring the widow's right was as follows : fj^i|^^«^"^°f 
 Where lands were being sold to which the right of the vendor's io purctaser. 
 widow to dower attached, and a term of years had been created 
 for some purpose or other, which was precedent to her right of 
 dower, it became the practice to hold that, where the purchaser 
 could get the term, though satisfied, to a trustee for himself, the 
 
 1 Williams, Real Property, 297. = Fearne, Cent. Bern. 347™- 
 
 " lEep. 930 ; Duncomh v. Duncomb, 3 Lev. 437- 
 
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■22i 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Jointure. 
 
 Definitions : 
 Ooke. 
 
 Blacketone. 
 
 Eequisites of 
 a legal joint- 
 ure. 
 
 widow's right to dower was barred as against the purchaser even 
 with notice.' But by the Satisfied Terms Act, 1845,^ when such 
 terms are satisfied they shall absolutely cease and determine. 
 Where, however, such terms are not satisfied, but are assigned 
 for the benefit of the purchaser, such assignment will operate as 
 a bar to the right of dower in case of women married before 
 January i, 1834.' 
 
 There is another method of barring the wife's dower, that is, 
 by a provision made for her in lieu of dower called Jointure. Of 
 jointures there are two kinds, legal and equitable. Legal jointures 
 are the direct outcome of the Statute of Uses.'' Previously to 
 that enactment it was customary to convey estates to trustees to 
 the use of the husband. As the trustees took the legal estate, 
 the wife, not being dowable of a trust, would have been without 
 a provision but for the husband taking a conveyance from his 
 trustees of some part of his property to himself and wife in joint 
 tenancy. When, however, the Statute of Uses turned the use 
 into possession, the wife would have been dowable of all her hus- 
 band's estates, had it not been for the provisions in the Act that 
 she should not be entitled to dower where she had a jointure 
 settled upon her ; ^ for at common law a provision for the wife 
 made by the husband before or after marriage did not bar her 
 right to dower. 
 
 Jointure has been defined to be "a competent livelihood ° of 
 freehold ^ for the wife, of lands or tenements, to take eflect pre- 
 sently in possession or profit after the death of her husband, for 
 the life of the wife at least, if she herself be not the cause of 
 determination or forfeiture of it." ^ 
 
 " A jointure, strictly speaking, signifies a joint estate limited 
 to both husband and wife, but in common acceptation extends 
 also to a sole estate limited to the wife only." ® 
 
 The following are the chief requisites of a good legal jointure:'" 
 (i) The jointure must necessarily commence immediately after 
 the husband's death. (2) It must be limited to the wife solely, 
 or to her and her husband jointly. (3) It must be for her life 
 or greater estate, or be determinable by her own act." An estate 
 
 ^ Lady Eadnor v. Vandehendy, Show. Par]. Cas. 69. 
 
 2 8&9 Vict. c. 112. 
 
 ^ Anderson v. Pignet, 8 L. E. Ch. App. 180; reversing L. E. 11 Eq. 329. 
 
 Drury v. Drury, 2 
 
 * 27 Hen. VIII. c. 10. ""5 Sects. 6-10." 
 
 " I'he adequacy is not defined by the Statute of Uses. 
 
 ^^- 57- . , 
 
 ' A jointure of a copyhold estate is no bar at law of dower, but otherwise in equity. 
 
 Warde v. Warde, Arab. 299. ^ Co. Litt. ^6 5. 
 
 » 2 Bl. Com. 137. 
 
 '» I Eop. H. ^ W. 464, et seq. 
 
 ^' VerTion's Case, 4 Eep. 3 a. In this case it was durante viduitate. 
 
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GHAP. XI.] PROPRIETARY RIGHTS OF SPOUSES. 225 
 
 limited to the wife pur autre vie is not a good jointure within the 
 Statute.' (4) It must be made before marriage ; if after, it is 
 voidable at her election on her husband's death.^ (5) The 
 jointure must be expressed to be in satisfaction of dower, that is, 
 of her whole dower, and not of part of her dower." (6) At law 
 the jointure cannot be out of a trust estate, but otherwise in 
 equity," where she will have like remedies as at law. 
 
 A power given to a man to appoint to a wife is in the nature 
 of a power to grant a jointure.'' 
 
 An infant wife is bound to a jointure which operates as a proper infant wife 
 and adequate provision, on the principle that the jointure takes proper jmnt- 
 efifect, not as a matter of contract, but as a provision made by "™- 
 the husband, and by force of the Statute of Uses making it 
 effectual.^ 
 
 The wife's elopement or adultery does not 'per se bar her right 
 to her jointure/ 
 
 It has already been mentioned^ that where the husband Wife must 
 
 • • « 1 •<■ f 1 • -n elect between 
 
 makes a provision for the wife alter the marriage, she will not be jointure and 
 barred by such provision, even though it be expressly stated as °'^^'^' 
 in Ueu of dower. At the same time, the wife will not be per- 
 mitted to take both provisions, but will be compelled to elect 
 between them. For the rule of election, that is, that a person 
 cannot accept or reject the same instrument, has been said to 
 apply both to deeds and wills, in short, to every species of instru- 
 ment, as also -to every species of right, and the right of dower 
 is no more protected than any other.^ To put the wife to an To put wife to 
 election, however, there must be a clear intention to exclude tiierg j^-ast be 
 her from dower, either expressed or implied.'" If there be any- li^^^^^^^^^; 
 thing ambiguous or doubtful, then the averment that the gift was or i»pi'^d^'^*o 
 made in lieu of dower cannot be supported, which is necessary from dower. 
 to make a case of election, for a gift is to be taken as pure, until 
 a condition appear. This has been said by Lord Eedesdale to be 
 the ground of all the decisions." The only question made in 
 all the cases is, whether an intention not expressed by apt words 
 could be collected from the terms of the instrument; and the 
 result of the cases of implied intention seems to be that the 
 instrument must contain some provision inconsistent with the 
 assertion of a right to demand a third of the lands to be set out 
 
 1 Co. Litt. 36 b. ^ Franh v. FranJe, 3 Myl. & Cr. 17. 
 
 3 Co. Litt. 36 b. Tinney v. Tinney, 3 Atk. 8, 
 ^ Gorhet v. Corhet, I Sim. & S. 620. 
 ' Be Lindo, Ashin v. Ferguson, 59 L. T. 462. 
 " Simson y. Jones, 9 L. J. Ch. 106. 
 
 ' Seagrave v. Seagrave, 13 Ves. 443. ^ -a-nte, p. 224. 
 
 ' £i>mi«oAom V. .EinuaK, 2 Sch. & Lef. 450. 
 
 i» MiaU Z Brain, 4 Madd. 125. " Birmingham v Ktrwan (uU sup.). 
 
 P 
 
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226 HUSBAND AND WIFE. [part i. 
 
 by metes and bounds.' This intention should be extended 
 to copyhold as well as freehold lands, for though the former are 
 not within the Statute of Uses, yet by so doing freebench will be 
 barred in equity.^ The question whether a widow must elect' 
 between the provision made for her by way of jointure and the 
 lands as to which her husband died intestate, and without having 
 disposed of them inter vivos, has, since the passing of the Dower 
 Act, lost much of its importance, for most of the cases in which it 
 would have arisen under the old law fall within some one or other 
 of the sections of that Act. It is possible that it might arise 
 where the woman was married before January i, 1834, or where 
 her right has not been barred under the Act; as where the jointure 
 has been made after marriage, and her right has not been barred 
 under the Act.' 
 Limitations to In modern marriage settlements these limitations to bar dower 
 mo'derrma'i^ ^7 ^^J of jointure foUow in the form of a rent- charge after the 
 riage settle- husband's life estate in his realty/ This rent-charge in favour 
 
 ments. . , . , , ° 
 
 of the wife is accompanied with appropriate ancillary remedies 
 under the fifth section of 27 Hen. VIII. c. 10, such as a power 
 of distress, and a power of entry.'" The value of the jointure 
 is the value of the property settled at the date of the settlement ; 
 this is important as ailecting the covenant of the settlor, by which 
 his general property may be bound to make good any deficiency 
 which may have arisen from depreciation.^ 
 Wife's equities Where the jointress releases her estate charged with her 
 her jointii? joiuturo, and accepts income arising from the investment of the 
 rights. proceeds of the sale, such income being at the time equal to the 
 
 jointure, any deficiency that may subsequently occur through the 
 subsequent insuflBciency of the substituted security must be made 
 good to her.' The release of her jointure to be efficacious must 
 be by deed acknowleged in accordance with the provisions of the 
 Pines and Eecoveries Act, 1834, as amended by the Conveyancing 
 Act, 1882.* Where she releases her jointure lands to enable her 
 husband to mortgage, her right will subsist as against the equity of 
 redemption,^ and she may now release a part of such lands, 
 and the release will not operate as a release of the whole." A 
 
 1 Peach. Sett. 367, 368. 
 
 2 Willis V. Willis, 34 L. J. Ch. 313. 
 
 3 I Rop. H._& W. 468 ; I Br. H. & W. 441, et seq. 
 
 ^ These limitations to bar dower have now practically usurped the functions of the 
 legal jointure. 
 
 ^ For details, see Dav. Prec. vol. iii. pt. I, p. 310 et seq. 
 
 ^ Eustace v. Keightley, 4 Bro. P. C. 588 ; }^eaJce v. Speahe, 1 Vern. 217. 
 
 ' Arundell v. Arundell, I Myl. & K. 316. 
 
 ^ Noyes v. PollocJc, 33 Ch. D. 53. 
 
 » Wood V. Wood, 7 Beav. 183. 
 
 11 22 & 23 Vict. c. 35, s. 10; see Noyes v. Polloch (vhi sup.). 
 
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CHAP. xi.J PEOPRIETARY RIGHTS OF SPOUSES. 227 
 
 power to jointure a wife must be honestly exercised, or the 
 attempted exercise of it will fail.' 
 
 The Dower Act, 1833.= — This Act has rendered the law Dower Act, 
 of dower and jointures of little moment and importance, for it ^^33- 
 has put complete power into the hands of the husband to regulate 
 the interests of his wife in his lands. The sections of the Act 
 are here set out : — 
 
 Section i. "The word 'land' shall extend to manors, advow- Definition of 
 sons, messuages, and all other hereditaments, whether corporeal "'*"'^"' 
 or incorporeal (except such as are not liable to dower), and to 
 any share thereof." 
 
 Section 2. "When a husband shall die beneficially entitled to Widows en- 
 any land for an interest, which shall not entitle his widow out ™®o^feqi^'^^e 
 of the same at law, and such interest, whether wholly equitable, estates. 
 or partly legal and partly equitable, shall be an estate of inherit- 
 ance in possession, or equal to an estate of inheritance in pos- 
 session (other than an estate in joint tenancy), then his widow 
 shall be entitled in equity to dower out of the same land." This 
 section seems to give the wife more than it really does, for her 
 interests, which are enlarged by this section, are more than pro- 
 portionably curtailed by subsequent sections. Under this section 
 it has been held that where the husband has an equitable estate 
 ia fee, subject to an executory devise over if he die without 
 having a child living at his death, his wife will be entitled, 
 though on his death the executory devise over takes effect.^ 
 
 Section 3. "When a husband shall have been entitled to a Seisin not 
 right of entry or action in any land, and his widow would be giveTitiTto" 
 entitled to dower out of the same if he had recovered possession dower. 
 thereof, she shall be entitled to dower out of the same, although 
 her husband shall not have recovered possession thereof, provided 
 that such dower be sued for or obtained within the period during 
 which such right of entry or action might be enforced." Dower 
 being an interest in land,'' the widow's right must be claimed 
 within twelve years of the time of its accrual.^ 
 
 Section 4. " No widow shall be entitled to dower out of any Alienation by 
 
 T T p T 1 1 1 J husband. 
 
 land which shall have been absolutely disposed of by her husband 
 in his lifetime, or by his will." This section gives the husband 
 complete power and control over his wife's right to dower. The 
 question as to what is an absolute disposition not unfrequently 
 
 ' Whelan v. Palmer, 39 Ch. D. 648. 
 2 3 & 4 Wm. IV. u. 108. 
 ' Smith V. Spencer, 2 Jur. N. S. 778. 
 
 * Marshall v. Smith, 34 L. J. 189. ,, , „ o v? / 7 • 
 
 5 3 & 4 Wm. IV. c. 57, s. 2 ; 38 & 39 Vict. c. 57,- s. i. Marshall v. Smith {uii 
 sup.). 
 
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228 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Dower de- 
 feated by 
 charges and 
 debts. 
 
 Dower may be 
 barred by a 
 declaration in 
 a deed ; 
 
 or by a declara- 
 tion in the 
 husband's will. 
 
 Dower subject 
 to restrictions. 
 
 Devise of real 
 estate to 
 widow shall 
 bar dower. 
 
 arises. A general devise, and a devise in trust for sale and con- 
 version, and to pay annuity to widow, have been held to bar 
 dower,' so also a devise of lands to trustees upon certain trusts, 
 being partly for the benefit of the widow.^ A contract by the 
 husband to sell his lands, though no conveyance be executed, is a 
 bar to dower, on the equitable principle that what is agreed to be , 
 done shall be considered as done. 
 
 Section 5. "All partial estates and interests, and all charges 
 created by any disposition or will of a husband and all debts, 
 incumbrances, contracts, and engagements to which his land shall 
 be subject or liable shall be valid and effectual as against the 
 right of his widow to dower." Though the wife's right to dower 
 is not affected by the mere debts of her husband not charged 
 upon his lands,' it is so affected by a mortgage of such lands, and 
 she has no equity against her husband's heir-at-law to be indem- 
 nified in respect of such mortgage.^ 
 
 Section 6. " A widow shall not be entitled to dower out of any 
 land of her husband when in the deed by which such land was 
 conveyed to him,' or by any deed executed by him, it shall be 
 declared that his widow shall not be entitled to dower out of such 
 land."« 
 
 Section 7. " A widow shall not be entitled to dower out of any 
 land of which her husband shall die wholly or partially intestate 
 when by the will of her husband, duly executed for the devise 
 of freehold estates, he shall declare his intention that she shall 
 not be entitled to dower out of such land, or out of any of his 
 land." 
 
 Section 8. " The right of a widow to dower shall be subject to ' 
 any conditions, restrictions, or directions which shall be declared 
 by the will of her husband duly executed as a,foresaid." 
 
 Section 9. " Where a husband shall devise any land out of 
 which his widow would be entitled to dower if the same were not 
 so devised, or any estate or interest therein, to or for the benefit 
 of his widow, such widow shall not be entitled to dower out of or 
 in any land of her said husband, unless a contrary intention shall 
 be declared by his will." ' Where a husband leaves by will the 
 
 ^ Lacey v. Bill, Leney v. Hill, L. E. ig Eq. 346. 
 
 ^ Sowland v. Cuthbertson, L. R. 8 Eq. 466. 
 
 ^ Spyer v. Hyatt, 20 Beav. 621. It is, however, very doubtful whether this decision 
 of Lord Eomilly that dower has precedence over the " mere debts " of the husband is a 
 correct exposition of the law. 
 
 ^ Jones V. Jones, 4 K. & J. 361. 
 
 " Such deed need not be executed by the. husband. Fairlev y. Tuck, 27 h.\!. 
 Ch. 28. 
 
 ^ M-y V. Noble, 25 L. J. Ch. 144 ; Olarhe v. Pranhlin, 4 K. & J. 266. See also 
 Thompson v. Watts, %i L. J. Ch. 445. 
 
 ' See Lacey v. Ilill, Leney y. Hill, L. E. 19 Et[. 346 ; and Rowland y. Cuthbert- 
 son, L. E. 8 Eq. 466. 
 
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cHAP.-xi.] PROPRIETARY RIGHTS OF SPOUSES. 229 
 
 income of part of the proceeds of his real estate devised in trust 
 for sale to his widow, the gift of such income is a gift of an 
 " iaterest in land " within the section, and she is thereby disen- 
 titled to dower.' 
 
 Section lO. " No gift or bequest made by any husband to or Bequest of 
 for the benefit of his widow of or out of his personal estate, or Snot.*"^'* 
 of or out of any of his land not liable to dower, shall'defeat or 
 prejudice her right to dower unless a contrary intention shall be 
 declared by his will." 
 
 Section ii. "Nothing in this Act contained shall prevent any Agreement 
 court of equity from enforcing any covenant or agreement entered beViJorce™^ 
 into by or on the part of any husband not to bar the right of his 
 widow to dower out of his lands, or any of them." Where a 
 purchaser has no notice of any such covenant or agreement and 
 obtains the legal estate, equity will not enforce such covenant 
 against him.^ 
 
 Section 12. " Nothing in this Act contained shall interfere with Legacies in bar 
 any rule of equity or of any ecclesiastical court, by which legacies ° °^^'^' 
 bequeathed to widows in satisfaction of dower are entitled to 
 priority over other legacies." But the testator must leave real 
 estate, otherwise the widow has no priority.' For this rule to be 
 put in force, her right to dower must exist, in other words, she 
 must be a purchaser of the legacy. But in the case of a wife 
 married after the passing of this Act, to whom her husband 
 bequeaths a legacy declared to be in satisfaction of^ her dower, and 
 he leaves other legacies, and dies seised of real estate, she is not 
 entitled to priority over the other legacies in the event of the 
 personal estate being insufficient to pay all the legacies in full." 
 
 Section 13. "No widow shall hereafter be entitled to dower acZ Certain dowers 
 ostium ecclesice, or dower ex assensio patris." These were two old 
 forms of dower by which the bride was dowered at the church 
 porch and by the father of the bridegroom, who was wont to 
 specify the lands to which the right of dower should attach. 
 
 Section 14. "This Act shall not extend to the dower of any Date of opera- 
 widow who shall have been or shall be married on or before the January i, ' 
 first day of January 1834, and shall not give to any will, deed, 1834- 
 or contract, engagement, or charge executed, entered into, or 
 created before the said first day of January, 1834, the effect of 
 defeating or prejudicing any right to dower. 
 
 "The efiect of the Act," to quote the language of the late Mr. Effect of the 
 Joshua Williams,' " is evidently to deprive the wife of her dower 
 
 i Be Thomas, Thomas v. Eowell, 34 Ch. D. 166. 
 
 2 Jones V. Smith, 2 Ph. 244. ' -^cey v. Simpson, S Beav. 35. 
 
 ■• Be Greenwood, Greenwood v. Greenwood [1892], 2 Ch. 295. 
 
 5 Principles of the Law of Eeal Property, p. 299. 
 
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230 
 
 HUSBAND AND WIPE. 
 
 [PABT I, 
 
 Forfeiture of 
 dower. 
 
 Waiver. 
 
 except as against her husband's heir-at-law. If the husband 
 should die intestate and possessed of any lands, the wife's dower 
 out of such lands is still left her for her support, unless, indeed, 
 the husband should have executed a declaration to the contrary. 
 A declaration of this kind has unfortunately found its way as a 
 sort of common form into many purchase deeds. Its insertion 
 seBms to have arisen from a remembrance of the troublesome 
 nature of dower under the old law, united possibly with some 
 misapprehension of the effect of the new enactment. But surely 
 if the estate be allowed to descend, the claim of the wife is at 
 least equal to that of the heir, supposing him a descendant of the 
 husband, and far superior if the heir be a lineal ancestor or a 
 remote relation. The proper method seems, therefore, to be to 
 omit any declarations against dower, and so to leave to the widow 
 a prospect of sharing in the lands in case her lord shall not think 
 proper to dispose of them." 
 
 A wife forfeits her right to dower where she leaves her hus- 
 band of her own free will and accord, and subsequently lives in 
 adultery ; ' so is it where she leaves him and commits adultery, 
 even though he be in fault.^ A sentence of dissolution of 
 marriage operates as a forfeiture, even where the husband was at 
 fault.^ 
 
 The widow's right to dower might also be barred by her waiver 
 of it during coverture. Under the old law, where the inchoate 
 right of dower had attached to make a valid and complete title, 
 the wife's concurrence had to be obtained, which was usually 
 effected by the fiction of levying a fine. When fines and recoveries 
 were abolished,^ her concurrence (tested by a separate examination) 
 in the deed of conveyance was rendered sufficient. If she con- 
 curred in executing a mortgage deed by which she released her 
 right to dower, and the equity of redemption was reserved to her 
 husband, her right was extinguished because equity did not recog- 
 nise dower out of an equitable estate, which the equity of redemp- 
 tion was," unless there was something in the proviso for redemption 
 which would carry the estate from the person who was owner at 
 the time of executing the mortgage, or some ambiguity in the 
 proviso.^ This point cannot arise as regards property affected by 
 the Dower Act, for a wife is now dowable of her husband's equit- 
 able estates. But where her right as a widow has attached, and 
 she joins with the heir-at-law in executing a mortgage deed for the" 
 
 ^ Metherington Y. Graham, 6 Bing. 135. 
 
 ^ Woodioard v. Dowse, 31 L. J. C. P. 70 ; Bostoch v. Smith, 34 Beav. 57. 
 
 " Framjpton v. Stephens, 21 Cli. D. 164. 
 
 ^ 3 & 4 Wm. IV. c. 74. 
 
 ^ Dawson v. Bank of Whitehaven, 5 Cli. D. 218. 
 
 ° Jacleson v. Parker, Amb. 687, 
 
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CHAP. XI.] PROPEIETARY RIGHTS OF SPOUSES. 231 
 
 purpose of extinguishing her right to dower, on the reconveyance 
 of the mortgage property her right revives, and she is entitled to 
 have dower assigned to her out of the premises previously mort- 
 gaged.' 
 
 The right of the widow on the death of her husband intestate 
 and childless to the whole of his property real and personal where 
 its net value does not exceed ;£'5oo will be discussed in the follow- 
 ing section.^ 
 
 Section 2. 
 
 a. Bight of the Husiand to Administer to his Wife's Personal 
 
 Estate. 
 
 Under the former state of the law, on the death of the wife, Personal 
 the husband need not have taken out letters of administration to EighTof " 
 her specific chattels, such as monev, and other like things, of ''"^'?*'?'^ *° 
 
 ,,,,,.-,. f ^ ni administer to 
 
 which she died intestate, for these vested in him by marital rightj' wife's estate. 
 but he had to take out letters of administration where there were 
 choses in action belonging to her unrecovered at her death, or 
 chattels real not vested in him in her right in her lifetime. The 
 right of the husband in his wife's separate property was much the 
 same, because the quality of separate estate lasts only during 
 coverture ; " the separate use is exhausted when the woman has 
 died without making a disposition ; " ^ the wife, of course, may 
 defeat her husband's interest in the property. Thus, if the 
 instrument creating the separate use does not make any disposition 
 of the property to take effect after the wife's death, and she has 
 absolute control over it, and does not make any disposition of it 
 by deed or will, and the husband survive, his position with refer- 
 ence to her property, whether real * or personal," including vested 
 leaseholds,^ and reversionary leaseholds,^ will be the same as if it 
 had never been settled to her separate use,' and he will take such 
 property jure mariti without taking out administration to her 
 estate. His right to her undisposed of personalty has long been 
 recognized by the courts administering equity, ecclesiastical, and 
 probate jurisdiction.'" 
 
 "This right [of administration] belongs to the husband exclu- O'^l^^.fg^^J; 
 sively of all other persons, and the Ordinary " has no power or administer. 
 
 1 Meek v. Chamberlain, 8 Q. B. D. 31. ^ See p. 239. 
 
 = Molony v. Kennedy, 10 Sim. 254 ; Tugman v. Hopkins, 4 M. & G. 389. 
 
 ^ Per Jessel, M. R., in Cooper v. Macdonald, 7 Cli. D. 288, 296. ^ 
 
 ^ Cooper V. Macdonald (ubi sup.). 
 
 8 Johnstone v. Lumb, 15 Sim. 308 ; Molony v. Kennedy {uU sup.). 
 
 ' Surman v. Wharton [1891], i Q. B. 491. 
 
 8 Be Bellamy, Elder v. Bearson, 25 Ch. D. 620. 
 
 9 Macq. H. & W. 318. 
 
 1" See Be Lambert's Estate, Stanton v. Lambert, 39 Ch. D. 639. 
 " Now the Probate Division of the High Court of Justice, 
 
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232 HUSBAND AND WIFE. [part i. 
 
 election to grant it to any other. The foundation of this claim 
 has been variously stated : by some it is said to be derived from 
 the statute of 3 i Edw. III., on the ground of the husband's being 
 " the next and most lawful friend " of his wife ; while there are 
 other authorities which insist that the husband is entitled at 
 common law jure mariti, and independently of the statutes. But 
 the right, however founded, is now unquestionable ; and is ex- 
 pressly confirmed by the statute 29 Car. II. c. 3, which enact? 
 that the Statute of Distributions (22 and 2 3 Oar. II. c. i o) ' shall 
 not extend to the estates of femes covert that shall die intestate, 
 but that their hiisbands may demand and have administration^ of 
 their rights, credits, and other personal estates, and recover and 
 enjoy the same, as they might have done before the making of 
 the said Act.' This right of administration to the wife is not an 
 ecclesiastical, but a civil right of the husband, though it is a right 
 to be administered in the Court of Probate." ' But where the wife 
 had been judicially separated, or had obtained a protection order, 
 administration was decreed to her next of kin of the property 
 acquired by her since the judicial separation or desertion, to the 
 exclusion of the husband.^ So, too, where the wife was executrix 
 to another and died intestate, administration as to goods not 
 administered by her in that capacity was not, generally speaking, 
 granted to her husband.^ 
 Difference be- Where the husband took his wife's specific chattels jure mariti, 
 taking jMJ-e he was entitled to retain them as his own property ; but when he 
 administrirt^r "^^^ obliged to take out letters of administration to reduce her 
 of wife. choses in action into possession, he was deemed to be a trustee of 
 
 such property on behalf of her creditors, and he could lay claim 
 only to the surplus after satisfying her liabilities. Apart from 
 any question of liability for the debts of his wife, it was the 
 intention of the Legislature in passing the Statute of Frauds* 
 removing a doubt on the construction of the Statute of Distribu- 
 tions,* that on the death of the wife intestate, the husband and 
 not her next of kin should have the right of administering to her 
 undisposed of property, including her choses in action." If a 
 married woman attempted to dispose by will of property over 
 which she had no testamentary capacity her executor held such as 
 trustee for her husband.' Another difference is to be noticed be- 
 
 ^ 1 Wms. Exors. 347, and the cases there cited. 
 
 2 Be The Goods of Worman, 29 L. J. P. M. & A. 164. 
 
 ^ I Wms, Exors. 352. This was on the principle that the administration was not 
 of the goods of the wife, but de bonis, non of her testator, cum testamento annexo, and 
 the grant of the administration would naturally follow the interest. 
 
 * 29 Gar. U. c. 3, s. 25. 5 22 & 23 Car. II. c. 10. 
 
 ^ Squib V. Wyn, 1 P. Wm. 378. 
 
 ' ScB Smart v. Iranter, 43 Ch. D. 587. 
 
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CHAP. XI.J PEOPKIETARY RIGHTS OF SPOUSES. 233 
 
 tween the right of the husband over the specific chattels of his 
 wife as to which she died intestate, and that over her choses in 
 action as to which she died intestate. At the moment of her 
 death intestate, in the case of the first kind of property, they 
 passed without more by the mere operation of law into the 
 possession of the husband ; but if, in the case of the second class 
 of property, the husband died intestate before reducing them into 
 possession, double administration on the part of his next of kin 
 was necessary ; they must have first taken out letters of adminis- 
 tration to his estate to constitute themselves his legal personal 
 representatives, and then afterwards taken out letters to admin- 
 ister his wife's estate.' But where the beneficial interest in the 
 property, as under a settlement, is in the next of kin, then 
 administration wiU be granted to them and not to the husband's 
 representatives.^ Where letters of administration have been im- 
 properly granted to a wife's next of kin without the knowledge 
 of the husband, he is entitled to have them revoked without 
 proving fraud on the part of those to whom they were granted.' 
 But where a husband deserts his wife, who makes a will withbut 
 appointing an executor, administration cum testamento atmexo may 
 be granted without his being cited.* 
 
 The above is a short exposition of the law in relation to the Husband'* 
 husband's right to administer to his wife's estate unaffected by any mfnieter under 
 change that may be wrought by the recent Married Women's Pro- ^cti'^g^' ^' 
 perty Act of 1882, and where the property of the spouses does ' 
 
 not come under the provisions of that Act, the law, as above laid 
 down, will still hold good. The wife has under the recent Act in 
 many ways no fuller pmver over her property than she had over 
 her equitable separate estate. Its efiect is to put in abeyance the 
 marital right over her property of every kind and description by 
 entitling her to hold it as separate property, and as though she 
 were unmarried. At this point the Act stops ; and a strong 
 argument that it was intended here to stop may be adduced from 
 the language of section 2 S of the Divorce Act, 1857/ which pro- 
 vides that property acquired by a married woman during a 
 judicial separation " on her decease .... shall, in case she shall 
 die intestate, go as the same would have gone if her, husband had 
 been then dead," and the court has acted upon this provision.' 
 No such words are to be found in the Act of 1882 ; and even 
 allowing to the fullest that it abolishes his rights, qud marital 
 
 1 Be The Goods of Harding, L. R. 2 P. & D. 394. 
 " Be Ihe Goods ofPountney, 4 Hagg. 289. 
 
 2 Cqpeland\. Simiater [1893], P. 16. 
 
 * In The Goods of Shoosmith [1894]. ^- 23- ^ 20 & 21 Viot. 0. 85. 
 '" See Be The Goods of Worman {ubi sup.). . 
 
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234 HUSBAND AND WIFE. [paet i. 
 
 rights, over his wife's property, it refrains from saying that he is 
 not the proper person to administer to her estate, and does not 
 deprive him of the right to do so. There is' an excellent reason 
 for the provision in the Divorce Act, namely, that as the husband 
 has been in fault and obliged his wife to have recourse to the 
 protection of the court, he ought not on her death to seize upon 
 the property which she may have become entitled to or earned 
 during the separation, and their relations to one another are 
 practically those of strangers. But the Act of 1 882 is not directed 
 against the husband's misconduct, but only against his absolute 
 rights, and it has been decided that the Act does not deprive 
 him of his rights to administer to his wife's undisposed of personal 
 estate.^ Under the Intestates Estates Act, 1890,^ the right of an 
 intestate's widow to share not only in a part but to take the whole 
 of her dead husband's property if it does not exceed ;^5oo is 
 fully recognized ; now if a married woman were deemed really a 
 fernie, sole for all purposes, she ought not to be regarded as a married 
 woman at all for the purpose of taking his property as against the 
 claims of his next of kin. But the Act, it is suggested, has per- 
 Modification haps introduced a modification of his right to administer; one of 
 M. w."r Ac"t, the obvious aims of the Act is to assist the wife's creditors, and 
 1882; (jQ prevent the rules of law from defeating their just claims. The 
 
 husband must efiect of this would be that the husband in the future must admi- 
 
 admimster to. ,..,,, ipt i-i -n t 
 
 all kinds of Ulster to his Wife s estate before he can claim her specific chattels 
 fongtagto-wife. ^^^ chattels real,^ just as he must administer in order to reduce 
 her choses in action into possession, and he will hold her chattels 
 personal in possession as trustee for her creditors, and will be 
 entitled to retain the balance only after paying them what is due 
 and owing.* It has, however, been suggested that the Act does 
 not appear to affect in any way his right to take jure mariti his 
 wife's specific chattels and chattels real vested in her before the 
 Act came into force.* This may be the better view. The debts 
 of her creditors will be paid pari passu.^ 
 
 A question may arise under the new Act whether, in the event 
 of the husband dying before administering to his wife's estate, 
 his or her personal representatives will be entitled to administer 
 to her estate. Formerly the practice in such a case was for the 
 Court to grant administration to the husband's representatives.' 
 Of course, where her representatives are beneficially interested, on 
 
 ^ Be Lambert's Estate, Stanton v. Lambert, 39 Ch. D. 626. 
 ^ S3 ^ 54 Vi*'''- "• 29. '' Wms. Exors. 607. 
 
 * See Askew v. Sooth, L. R. 17 Eq. 426. 
 ^ See Wms. Exors, 606 n. 608-614. 
 
 " Owens V. Dickenson Gr. & Ph. 48. See.also London Oliartered Bank of Australia 
 V. Lempriere, L. R. 4 P. 0. 572 ; overrulint; Shattock v. Shattock, L. E. 2 Eq. 182, 
 ' Partington v. Att.-Oen., L. R. 4 H. L. 100. 
 
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CHAP. XI.] PROPRIETARY RIGHTS OF SPOUSES. 235 
 
 the principle that the grant follows the interest, they will have 
 letters granted to them.' But the doubt will arise when they 
 are not so beneficially interested. It will probably be held that, 
 as under the present state of the law the husband's right to 
 administer is purely personal, it will not descend to his repre- 
 sentatives.^ Where husband and wife die by some common deaths No preaump- 
 such as shipwreck or the like, there is no presumption of survivor- snrrivorship. 
 ship between them ; * neither is there a presumption that they 
 died at the same time ; * but it is a question of fact to be deter- 
 mined on the evidence ; " and the onics of proof of death or sur- 
 vivorship is on the person aflSrming the fact.° 
 
 If the husband is cited and does not choose to appear he may 
 be passed over and administration granted to the wife's next of 
 kin.' This right to administer to his wife's estate is not one that 
 vests in his trustee in bankruptcy ; * though under certain cir- 
 cumstances the court will grant administration to his trustee.^ 
 
 Formerly, if a feme covert made a will, and disposed of only part Executors of 
 of her separate property, since her executors did not take jure ^^n no 
 representationis, but as appointees under a power to the extent of|^°°^j'^J^®*' 
 the fund appointed, they did not take the undisposed-of part, and under a power, 
 the husband took that portion of it which consisted of specific sentative 
 chattels jure mariti, and that which consisted of choses in action, ""■P^^^'y- 
 after taking out letters of administration.'" Since the coming into 
 force of the Married Women's Property Act, 1882, her executors 
 will no longer take as appointees of a specific fund, but in a full 
 representative capacity, and would therefore take the undisposed- 
 of portion in their own right, but would hold it, it is submitted, 
 as trustees for the husband, subject to the payment of the wife's 
 debts and liabilities. 
 
 To carry out the purposes of the Married Women's Property Legal personal 
 Act, 1882, "the legal personal representative of any married ^fP^^j^^g^"^® 
 woman shall in respect of her separate estate have the same rights ^""^^ p^^^^t, 
 
 X882. ' 
 
 ^ In The Goods of Pountney, 4 Hagg. 289. . t. • . 
 
 2 If the court so hold, a considerable alteration will have been effected in the nghts of 
 the personal representatives of the husband. Formerly, where the husband died before 
 taking out letters of administration, or after having taken them out, before reduction 
 of all his wife's choses in action, administration to the wife was required either gener- 
 ally, or de bonis non; but the wife's administrator was in equity held as_a trustee for 
 the husband's representatives ; but now the wife's administrator will administer for the 
 benefit of her next of kin. If, on the contrary, the former law is still held to govern, 
 disputed questions as to survivorship, where the death of the husband and wife were 
 practically synchronous, will still arise. See i Wms. Bxors. 742, 755. 
 
 ^ In The Goods of Alston [1892], P. 142. 
 
 * In The Goods of 8elwyn, 3 Hag. 784. ' 
 
 ^ Wing V. Angrave, 8 H. L. Cas. 183. 
 
 ' In The Goods of Shilling, Deac. & Sw. 183. 
 
 ' In The Goods of Moore [iSgi], P. 299. 
 
 « In The Goods of 7urner, 12 P. D. 18. 
 
 » Ibid. '0 Lewin, 875, 876, 
 
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J36 HUSBAND AND WIFE. [paet i. 
 
 and liabilities, and be subject to the same jurisdiction, as she 
 would be if she were living." ^ In most cases where the wife dies 
 intestate, the husband on taking out letters of administration will 
 become her personal legal representative. The effect of this sec- 
 ■tion is, that whoever represents the dead wife will, so far as her 
 separate property is concerned, have the same right to prosecute 
 claims, and be responsible for the same liabilities as she would 
 have had, and been responsible for, if she had lived, or had been 
 a single woman ; but it would not keep alive claims by or 
 •against her which, by force of the principle expressed in the 
 maxim, actio personalis moritur cum persond, would abate on her 
 death. 
 
 It will be noticed that only the legal personal representative 
 of the wife is mentioned, and not her heir-at-law or other- real 
 representative ; and though the words of the section are wide 
 enough to confer upon her personal representative full power 
 over the real estate as to which the wife died intestate, yet it 
 cannot be supposed that the ordinary canons of the law of 
 descent, and of real property, were intended to be set aside, and 
 it is a casus omissus so far as the real representative is concerned. 
 To carry out the section strictly, it would follow that a mere 
 administrator could give a valid title to the purchaser of the 
 intestate wife's real estate.^ If the personal estate is insuffi- 
 cient to meet the claims against it, her legal personal repre- 
 sentative must have recourse to an administration suit against 
 ■the heir-at-law.' 
 
 If at the time of the wife's death there was any dispute 
 
 between her and her husband as to what was or was not her 
 
 separate property, and she left an executor,. he could proceed to 
 
 enforce any claim she might have had against him ; and if under 
 
 such circumstances she died intestate leaving creditors, one of 
 
 her next of kin, or even a creditor, would be constituted the 
 
 . . administrator of her estate in preference to her husband, in order 
 
 that the claims of the creditors might be safeguarded against the 
 
 marital rights.^ 
 
 Right of widow 6. HigM of the Widoiv to Administer to her Sushand's Estate, 
 
 to hurtJand's' ^'^'^ ^^'' Share in it under the Statute of Distributions. — It has 
 
 estate, and her ijeen assumed that as in the case of dower, so in that of the 
 
 snare in it ^ 
 
 under Statute l So t 
 
 liooa, ^ He might even sell the realty over the head of the heir-at-law, and distribute.the 
 
 proceeds among the next of kin. ^'See Set. Dec. 1196. 
 
 * These claims could be enforced under section 17 by the creditors in the same way 
 as the wife could enforce them, in the event of disputes as to her separate property 
 arising between him and herself. If there was a dispute between the husband and 
 wife, and the latter died leaving the former her executor, any claim that she might bare 
 had against him would at onca cease and be determined. 
 
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CHAP. XI.] PROPJEIIETARY RIGHTS OF SPOUSES. 237 
 
 widow's right to administer to her husband's estate, and in her 
 right to a distributive share of his personal property undisposed 
 of by him at his death, no alteration of the law has been effected 
 by the Married Women's Property Act, 1882, for there is nothing 
 directly or indirectly in that statute to affect it. " As to the right 
 of the widow, the statute 21 Hen. VIII. c. 5, s. 3, directs that 
 the Ordinary shall grant administration ' to the widow or the 
 
 next of kin, or to both,' at his discretion The statute 
 
 further directs the Ordinary, in his discretion, to grant adminis- Grant of ad- 
 tration to loth the widow and the next of kin ; and it has been S' widow'r 
 held that the grant may be to them both iointlv, or both™*"^'^"* 
 
 . , , .... , , . . . „ discretion for 
 
 separately, by committing several administrations of several parts the court. 
 
 of the goods of the intestate But the court prefers a sole 
 
 to a joint administration, and never forces a joint one ; and in 
 modem practice the election of the judge is in favour of the 
 widow, under ordinary circumstances. But the court has always 
 held that administration may be granted to the next of kin, and 
 the widow be set aside upon good cause ; for instance, if she has 
 barred herself of all interest in her husband's personal estate by 
 her marriage settlement, or where she is a lunatic, or where she 
 has eloped from her husband, or cohabited in his lifetime with 
 another man, or has lived separate from her husband. But the 
 circumstance of the wife having married again is no valid objec- 
 tion. However, if the deceased left children, one of whom, 
 supported by the rest, applies for administration, the second 
 marriage might induce the court to prefer the child." ' 
 
 On the analogy of the case of Frampton v. Stephens^ in which 
 the court held that a woman divorced for adultery lost her right 
 to dower, a woman similarly instanced loses her right to admin- 
 ister to, or share in, the distribution of her late husband's estate.^ 
 But where a mere charge of misconduct is preferred against the 
 widow, she will not be passed over without being cited.* 
 
 Under the Statute of Distributions,* where the husband dies Widow's shar? 
 
 ' , , , ., T ,. , under Statute 
 
 mtestate, leaving a widow and a child or children, or lineal of Distriba- 
 descendants of such child or children, the widow is entitled to^^Mrdtobe 
 one-third of his personal estate, after satisfying his debts and shared with 
 
 ,.,,,.,-, " . , , child or ohil- 
 
 liabilities ; ^ if there be no child or children, nor any legal repre-^a^en, &c. 
 sentatives of them, then one moiety of the estate is to be allotted ^ mdety,^« ^^ 
 
 no child, &o. 
 
 ^ I Wms. Exors. 353, 354, and the cases there cited. . 
 
 2 21 Ch. D. 164. See Pettifer v. James, Bunb. 16. But it would be otnervnse 
 where she had been judicially sepaTated from him because of his cruelty. Be Ihe 
 ChodsoflMer,!,.^. 37. ScJ). SO. 
 
 ' In The Goods of Nares, 13 P. D. 3-5. 
 
 * In The Goods ^ Middleton, 14 P. D. 23. 
 
 » 22 & 23 Car. IL 0. 10. 
 
 8 Sect. 5. 
 
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238 HUSBAND AND WIFE. [pakt i. 
 
 to the wife of the intestate.' This disposition is based upon the 
 early practice of the Ordinary. The executorship or distribution 
 of the personal estate (bona mohilia) of testators or intestates was 
 originally in the hands of the clergy, who, after the lord of the 
 deceased had taken his heriot, proceeded to deal with his available 
 property on the following lines : First, the payment of his funeral 
 expenses, next payment of his debts; the residue was then 
 divided into three parts, one-third was apportioned to the widow, 
 and one-third to the children (if any) ; if there were no children, 
 the half was apportioned to the widow.^ The other third part, 
 when the testator or intestate left children, and the other half 
 when he did not leave any, was appointed by the Ordinary in pios 
 usus ; it was over this share of his property that the deceased was 
 supposed to have full disposing power ; but the Church took 
 good care that the disposition should be altogether for the welfare 
 of the soul of the departed, in other words, applied it for its own 
 benefit.^ A widow as such is not next of kin in blood to her 
 husband, so that where, in a settlement of a fund belonging to 
 the husband, the ultimate limitation was for his " next of kin in 
 blood according to the Statute of Distribution of the estates of 
 intestates' effects, and in the manner in which the same would 
 have been distributed if he had died possessed thereof intestate," 
 the words " next of kin in blood " excluded his widow.* 
 Bight of widow This right of the widow may be barred by an ante-nuptial 
 settlement excluding her from her distributive share, even though 
 she were an infant at the date of its execution.* It may also 
 be affected by her husband's covenant to leave her a portion of 
 his personal estate. The rule in such cases is — where the 
 husband covenants to leave, or that his executor shall pay, to his 
 widow a sum of money or part of his personal estate, and he dies 
 intestate, so that she becomes entitled to her portion under the 
 statute, such distributive share shall be a performance of the 
 covenant, and she cannot claim both, unless the distributive share 
 is less than the covenanted ; in which case the former is a satis- 
 faction pro tanto of the latter.^ But where the husband's 
 covenant is entire, and the provision therein expressed to be 
 secured to the wife is such that the covenant in part might be 
 held to be performed by the widow's distributive share under her 
 
 ^ Sect. 6. The other moiety goes to the next of kin, or to the Crown, if there be 
 no next of kin. 
 
 ^ Bracton, ff. 60, 6i. 
 
 '' Instead of the Church, the next of kin or the Crown now take the half when the 
 intestate leaves no child or children. 
 
 * Me Fitzgerald's Trusts, 58 L. J. Ch. 663. 
 
 ^ Earl of Bvddnghamshire v. Drury, 2 Ed. 6q. 
 
 ' 2 Kop. H. & W. 44 ; 2 Wms. Exors. 1362 ; Blandy v. nidmore, I P. Wms. 
 324 ; Lee v. D'Aranda, 1 Ves. Sen. i ; Oartlishore v. Chalie, 10 Ves. i. 
 
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CHAP, XI.] PEOPRIETARY RIGHTS OF SPOUSES. 239 
 
 husband's intestacy (according to the cases cited in the footnote 
 below), and the remaining part could not be so considered, then, 
 since the covenant is entire, the court will not split it, and hold a 
 performance and a non-performance at the same time.' 
 
 It may not be amiss to point out that the expression " thirds 
 of personal estate at common law " is not only inaccurate, but 
 meaningless. A widow has no common law right to a third of 
 her intestate husband's property, for it is purely statutory ; and 
 even under the statute, her share may amount to a half, and not 
 to a third.^ 
 
 In the case of small estates a complete alteration has been widow's right 
 made in this branch of the law by the Intestates' Estates Act, Ind^cUidiess 
 1890 ;' and where a man dies intestate after September i, 1890, ''^^'?*°*'« 
 leaving a widow but no issue, instead of the widow being entitled real and per- 
 to her one-third of the realty in the shape of dower, or her half n™ valBe'not 
 of the personalty (or both), she becomes entitled to the whole/ "'ceeding 
 The effect of this is that where the net value of the estates does 
 not exceed ;^SOO, neither the heir-at-law nor the next of kin of 
 the intestate need be cited.^ Where the net value of the estates 
 shall exceed ;^500, the widow shall be entitled to ;^SOo abso- 
 lutely and exclusively, and shall have a charge upon the whole of 
 such real and personal estates for the /^Soof and as between the 
 real and personal representatives of the intestate, such charge 
 shall be borne and paid in proportion to the values of the real 
 and personal estates respectively.^ This provision for the widow 
 is in addition and without prejudice to her interest and share in 
 the residue of the real and personal estates of the intestate 
 remaining after the payment of the said sum of ;^S00 in the 
 same way as if the residue had been the whole of the intestate's 
 real and personal estates and the Act had not been passed.' 
 This Act only applies where there has been a total and not partial 
 intestacy.^ 
 
 To sum up the law on this branch of the question, a husband Summaiy 
 and wife who as regards each other's property are under the 
 
 1 2 Bop. H. & W. 52 ; PoiKh v. Stratton, 4 Ves. 391 ; Lang v. Lang, 8 Sim. 451. 
 See also xaung v. Young, I. R. 5 Eq. 615. 
 
 " The words "common law " must be construed as equivalent to the terms "accord- 
 ing to the general law ; " the effect of expressing that a settlement on the wife is to 
 be in bar and satisfaction of dower or thirds which she could or might claim at common 
 law, &G., will exclude her from her share under the statute. Ourly v. Gurly, 8 CI. & 
 F. 743; 2 Wms. Exors. 1361. ^ 53 & 54 Vict. c. 29. * Sect. i. 
 
 = In The Goods of Everhy [1892], P. 50. Sect. 2. , , , 
 
 ' Sect. 3. Sect. 5 provides for ascertaining the net value of the realty ; and^sect. 6 
 for ascertaining the net value of the personalty. ' Sect 4. 
 
 9 Ee Twigg's Estate, Iwigg v. Blach [1892], I Ch. 579. _ In this case, Chitty, J., 
 said the expression, " testamentary expenses of the intestate in sect. 6 is equivalent to 
 expenses of letters of administration and of administration generally, and do not refer 
 to the expenses of one who has died partially testate." 
 
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240 HUSBAND AND WIFE. [part i. 
 
 provisions of the law existing previously to the Married Women's 
 Property Act, 1882, are in this position. If the husband die 
 intestate possessed of realty, the widow, unless barred, will be 
 entitled to her dower ; if possessed of personal estate, she will be 
 entitled to a third or a half of it, as the case may be. If the 
 wife die intestate, both as regards her real and personal property 
 settled to her separate use, the husband will, in respect of her 
 real estate in possession, whether in fee or in tail, become tenant 
 by the curtesy, and subject to such right the land will descend to 
 her heirs ; his interest in her separate chattels real will be the 
 same as, and limited by, her interest. As regards her personal 
 chattels in possession, he will perhaps take them jure imtriti; and 
 as regards her choses in action, he will become entitled to them 
 only on taking out letters of administration to her estate. 
 
 With regard to those spouses who are affected by the pro- 
 visions of the Married Women's Property Act, 1882, the widow's 
 interest in her husband's realty and personalty will remain 
 unaffected where he dies intestate. It is true under that Act 
 the marital rights during coverture have been practically abro- 
 gated, but so they were in equity over the separate estate ; and 
 there is no internal evidence that it was the intention of the 
 Legislature to abrogate, or even to modify them on the termi- 
 nation of the coverture, in favour of the wife's heirs or next 
 of kin, or of the Crown. Accordingly, if the wife die intestate 
 as to real and personal property, all of which must by force of 
 the statute be separate property, her husband's interest in it will 
 enable him as before to take her specific chattels and chattels real 
 in possession jure mariti, and her choses in action and chattels real 
 not so vested after grant of letters of administration^ with this im- 
 portant exception, that he will hold such property as a trustee 
 charged with the payment of her debts. He will, then, still take 
 as tenant by the curtesy her real estate, whether in fee or in tail ; 
 her chattels real, and her general personal property, whether 
 specific chattels or choses in action, after taking out letters of 
 administration ; and, after satisfying the claims of her creditors, 
 will be entitled to retain the surplus, to the exclusion of her next- , 
 of-kin. Where the husband dies without issue and wholly intes- 
 tate after September i, 1890, and leaves real and personal 
 property not exceeding £s, 00 in net value, the widow takes the 
 whole absolutely to the exclusion of any heir-at-law and nerf-of- 
 kin; and where the estate exceeds in value ;^S00, the first 
 charge on such real and personal property is the widow's right to 
 the ;^500, in addition to her dower right and right to her thirds 
 under the Statute of Distributions. 
 
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CHAPTER XII. 
 
 THE GENERAL EFFECT OF COVERTURE. 
 
 Ante-ntjptial Acts and Agebembnts op Husband and 
 Wipe : Will, etc., op Wipe . 
 
 Will op Hitsband 
 
 Eppect op Maeeiagb on Ante-nuptial Ageeembnts 
 
 BETWEEN Husband and Wipe . 
 Post-nuptial Teansactions between Husband and Wipe. 
 
 Mutual Incapacity to give Evidence poe and against 
 
 EACH OTHER IN CEIMINAL MATTEES . 
 
 Exceptions 
 
 In Civil Mattees Competent Witnesses 
 
 against each othee .... 
 Incapacity to Steal peom one anothee 
 
 Exception undbe M. W. P. Act, 1882 
 Incapacity to Sub each othee foe Toets 
 
 Exception undee M. W. P. Act, 1882 
 FoEMEE Incapacities but Peesbnt Capacities op Maeeibd 
 
 Women 
 
 To Hold and Dispose op Peopbety 
 To Make a Will 
 
 poe and 
 
 241 
 242 
 
 242 
 
 243 
 
 243 
 244 
 
 245 
 
 246 
 246 
 
 247 
 248 
 
 248 
 
 249 
 250 
 
 Maeeiage not only modifies the status of those who enter upon 
 it, but also affects certain acta and deeds done by the husband or 
 wife anterior to it, and, further, puts the spouses under certain 
 disabilities both with respect to one another and third persons. 
 Formerly, more than at the present day, marriage operated to 
 alter the position and acts of the wife ; but a most marked and 
 sensible change in the law has been gradually worked out to her 
 advantage, and there are but few matters which call for special 
 treatment under such a heading as that of the present chapter. 
 The General Effect of Coverture. 
 
 Marriage operates to extinguish or revoke several acts of the f^^^^^^'^^^l]^ 
 wife done when a feme sole. Thus, a will made by a single woman ments of bus- 
 is revoked on her marriage,^ and the consent of the husband 
 did not make it the less invalid,' and though the wife survive Will of wife. 
 the husband, such a will did not until quite recently survive 
 
 ' I Vict. c. 26, li. 18. 
 
 2 Doe dem. Hodsden v. Staph, 2 T. E. 684. 
 
 Q 
 
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242 HUSBAND AND WIFE. [part i. 
 
 ■Warrant of after tte busband's death without republication.^ A warrant of 
 attorney. attorney executed by her dum sola is revoked by her marriage;^ 
 Submission to SO is her Submission to arbitration, if the marriage take place 
 arbitration. -^^^q^q the award.' This would seem to be still the law, notwith- 
 Wiiiofhus- standing the Married Women's Property Act, 1882.'' Before the 
 band. Wills Act, 1 837 (i Vict. c. 26), the marriage of a testator did 
 
 not revoke his will, and it was not until the birth of a child un- 
 provided for that his will, whether of real or personal property, 
 was revoked, and the revocation was by operation of law, and not 
 dependent on any question of intention on the part of the testator.' 
 But by section 1 8 of that Act, it was provided that " every will 
 made by a man or woman after January i, 1838, shall be re- 
 voked by his or her marriage (except a will made in exercise 
 of a power of appointment, when the real or personal estate 
 thereby appointed would not in default of such appointment 
 pass to his or her heir, customary heir, execator, or adminis- 
 trator, or the person entitled as his or her next of kin, under 
 the Statute of Distributions"). Marriage thus operates as an 
 absolute revocation of a man's will, whether affecting real or 
 personal property. 
 Effect of mar- Marriage, as a general rule, by the common law extinguished 
 nuptid'agree' ^11 prior obligations and contracts between husband and wife,' 
 ments. unless made on the occasion and in consideration of the marriage 
 
 or where the obligation was of a continuing nature, as a covenant 
 by the husband to pay his wife an annuity during her life ; in 
 which case it was suspended and not extinguished during cover- 
 ture, and might be enforced by the wife for arrears accrued after 
 the death of her husband.' So, again, if the contract has been 
 entered into by the husband with his wife (dum sola) in her 
 representative capacity as executrix, &c., it was only suspended 
 
 1 Lewis's Case, 4 Burn's Eocl. Law. 51 ; Long v. Aldred, 3 Add. 48. See 56 & 57 
 Vict. c. 63. "If a /erne sole makes her will and afterwards marries, such subsequent 
 marriage is a revocation and entirely vacates the will, and although she should survive 
 the husband, a will made before marriage will not revive upon his death without repub- 
 lication." I Wms. Exors. 59. 
 
 ^ Anon. Salk. 117. 
 
 ^ OharnUy v. Winstanley, 5 East, 266. " If there be others joined with her as 
 co-plaintiffs or co-defendants in the reference, her marriage avoids the submission as to 
 all of them. But as it is a voluntary act on her part, it is a breach of her agreement 
 to abide by and perform the award, and renders her and her husband liable to an 
 action." Euss. Arbit. 158, and the cases there cited. 
 
 * 45 & 46 Vict. 0. 75. 
 
 5 Marston v. Soe, dem. Fox, 8 Ad. & El. 14. 
 
 ^ Co. Litt. 294 h ; Smith {et uxor) v. Stafford, Hobart, 216. 
 
 ' Clark V. Thompson, Cro. Jac. 571 ; Cage v. Acton, i Ld. Raym. 522 ; Fitzgerald 
 v. Fitzgerald, L. E. 2 P. C. 63. In Pridgeon v. Pridgeon, i Ch. Cas. 117, it was held 
 that where an agreement is between haron and feme before marriage that the wife 
 may dispose of part of her estate, or for a thing which is future to the marriage, such 
 an agreement is not dissolved by the marriage ; yet where an agreement is to have 
 execution during the coverture, there the marriage extinguisheth the agreement. 
 
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CHAP. XII.] GENERAL Ei*PECT OP COVERTURE. 2i'd 
 
 during coverture.' Where a woman as such executrix or ad 
 ministratrix married one who was debtor to the estate, the debt 
 was not released.^ A bond entered into by a woman with her Bond between 
 intended husband was not void in equitv,^ and is now ffood both ^''^'^'^^'i i»"s- 
 
 , , . ■■ mi -1 band and wife 
 
 at law and in equity. There does not seem to be any doubt that good in equity, 
 since the passing of the Married Women's Property Act, i882,^raw.°°'^"' 
 conferring on a married woman full powers of contracting with 
 her husband, and preserving her property to her, ante-nuptial 
 bonds and agreements (other than marriage settlements), between 
 a man and woman who afterwards intermarry will not be affected 
 by the marriage. A very good exposition of the former law on 
 this subject has been given by a learned American writer.^ 
 
 The effect of marriage is to bring not only the wife but also Post-nnptki 
 the husband under certain disabilities and incapacities in reference bjftween™^ 
 to each other during the existence of the coverture. Many husband and 
 of these disabilities and incapacities which once flourished at 
 common law have, by the operation of equitable principles or 
 by direct legislative sanction, quite disappeared ; those which flowed 
 from the theory of the merged or suspended separate existence 
 of the wife, rendering the married couple incapable of treating 
 each other as a separate person in relation to their contracts and 
 property, have been altogether abrogated by positive enactments. 
 Accordingly, it will be found that most of the incapacities of the 
 spouses, though still incapacities by the common law, are such 
 but in name. There are, however, a few incapacities to which 
 attention will now be drawn. 
 
 Mutual Incapacity to give Evidence for and against each other m Mutnai incapa- 
 Crimimd Matters.- — It may be laid down as a general proposition e^denolYo"!- 
 of law that husband and wife are mutually incompetent to give e^cb.^Sher'in 
 
 criminal 
 
 1 Co. Litt. 3SI b ; Richards v. Richards, 2 B. & Ad. 452. naatters. 
 
 ^ Dorchester v. Webb, Cro. Car. 372. 
 
 ' Cannel v. Buckle, 2 P. Wms. 243. 
 
 * 45 & 46 Vict. c. 75. 
 
 ' 2 Bish. Laws of Marr. Women, § 331, who says : "Whatever be the nature of 
 the obligation which the marriage is held to discharge, the object of the suit at law 
 npon it is to obtain money. If, then, the obligation had matured dnrirjg coverture, 
 whether it was the wife's to the husband, or the husband's to the wife, the money on being 
 paid would have been the husband's ; therefore, as no suit could have been maintained, 
 and a formal payment would have been useless, not changing any rights, the payment 
 should have been deemed, in point of law, to have been made. Thus, if before marriage 
 the man had given to the woman his promissory note, or if any other debt or obligation 
 had arisen from him to her, or if there was the like from her to him, the law, on the 
 marriage of the two, made the damages, which are sought to be recovered- in a court 
 of law the husband's. It therefore of necessity extinguished the debt. Had the 
 money representing the damages passed from the wife's pocket to the husband s, or the 
 husband's pocket to the wife's, no legal result would have been effected thereby ; tor 
 whether it was in the one pocket or the other, it was equally the husband s. iiut it 
 the ohligation is of a nature not to be performed during the coverture, then, as already 
 explained, the marriage does not extinguish it ; because, m such a case, there is no 
 money to pass from the one party to the other, and the damages are a thing in 
 reversion." 
 
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244 HUSBAND AND WIFE, [paet i. 
 
 evidence either for or against eaoli other in criminal matters;' 
 but if one spouse makes a statement in the presence of the other 
 spouse who is charged with an offence, and the latter either 
 authorises the statement or does not contradict it, evidence of 
 such statement may be given.^ Even in collateral matters neither 
 is bound to answer questions which would tend directly to 
 criminate the other;' but the proof of the one is not to be 
 excluded in such cases, because it may afford the means of pro- 
 Exceptions, curing evidence against the other.^ The exceptions to this rule 
 are for the protection of husband and wife ; where the charge is 
 one of personal violence of husband against wife or of wife against 
 husband, the husband or wife can swear the peace against the 
 other. They are also for the advantage of the public;^ thus, the 
 dying declarations of the one are admissible against the other on a 
 charge of murder." In an abduction case likewise, where the 
 wife has been forcibly married, her evidence has been admitted.' 
 Where the wife is deserted by the husband and becomes charge- 
 able to the parish, she is not an admissible witness against him 
 when he is charged under the Vagrancy Acts.' There has been 
 another special exception created by the Married Women's 
 Property Act, 1882," and Married Women's Property Act 
 (Amendment Act), 1884,'° which enables husband and wife to give 
 evidence against each other, on the prosecution of the one by the 
 other for larceny of his or her property committed on desertion.'' 
 There is, however, a strong tendency to render husband and wife 
 competent witnesses for and against each other in criminal 
 matters; and in recent statutes creating new offences there is 
 usually a clause enabling the husband or wife of the accused to 
 be called as a witness for the prosecution or the defence ; thus, 
 in a prosecution under section 156 of the Army Act, 1881,'" and 
 section 4 of the Explosive Substances Act, 1883,'' the wife or 
 
 1 Gilb. Evid. 119 ; 2 Hawk. P. C. c. 46, s. 70; Bull. N. P. 286 ; 16 & 17 Vict. ». 
 83, 8. 2. 
 
 2 Eeg. V. Mallory, 13 Q. B. D. 33. 
 
 ^ Meg. V. Oleecl, cited 3 Russ. Crim. 623 
 
 "' Bex V. All Saints, Worcester, 6 M. & S. 194. This case seems to be an authority 
 for holding that the one may be called to contradict the other. 
 
 5 Lord Audley's Case, 3 St. Tr. 401 ; Beg. t. Jellyman, 8 C. & P. 604. 
 
 ^ Woodcock's Case, i Leach, 500. 
 
 ' I Bast, P. C. 0. II, s. 5, p. 454 ; Bex y. WaJcefield, cited 3 Russ. Cr. 625. 
 
 8 Beeve v. Wood, 34 L. J. M. C. 15. 
 
 ^ 45 & 46 Vict. c. 75, SB. 12, 16. 
 
 1" 47 & 48 Vict., c. 14, 8. 1. It was found necessary to pass this Act to enable 
 liusbands to give evidence against their wives in a prosecution for stealing their pro- 
 perty when leaving or deserting them, in consequence of the decision of the Court for 
 Crown Cases Reserved in Beg. v. Britthton, 12 Q. B. D. 266. 
 
 " By sect. 3 of 16 & 17 Vict. c. 83, mutual communications ofhusband and wife were 
 privileged ; but it is now doubtful whether such communications which would have 
 direct bearing upon what may be called "statutory matrimonial larceny" will be so 
 privileged. ^^ 44 & 45 Vict. c. 58. " 46 & 47 Vict. c. 3. 
 
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CHAP. XII.] GENERAL EFFECT OF COVERTURE. 245 
 
 husband of the accused may, if she or he thinks fit, be called as 
 an ordinary witness in the case ; so, under the Criminal Law 
 Amendment Act, 1885,' the husband or wife of the person 
 charged shall be a competent but not compellable witness except 
 before a grand jury ; and a husband or wife of a person charcred 
 under the Prevention of Cruelty to Children Act, 1894,^ and the 
 Betting Loans (Infants) Act, i892,^is a competent but not 
 compellable witness. Under the Sale of Food and Drugs Act, 
 187$,* the wife is a competent witness on behalf of her husband; 
 but if she were to carry on a trade separately from her husband 
 and were charged with an offence under this last Act, her hus- 
 band would not be a competent witness in her favour. 
 
 In civil matters husband and wife are now under no disability in oivii matters 
 in respect of competency to give evidence for or against each wHe^compettnt 
 other in suits in which one or other or both mav be parties, "^^itiesses for 
 
 T, 1 V . i 1 ,, . ^ and against 
 
 formerly, but not so very long ago, they were incompetent to each other. 
 give evidence for or against each other in civil causes ; ^ and 
 the true ground for excluding their evidence was the supposed 
 manifest interest of the parties, and their proneness to commit 
 perjury on each other's behalf. In 1853 an Act, known as "The Evidence 
 Evidence Amendment Act," ^ rendered husbands and wives of Act, 1853. 
 parties admissible witnesses for or against each other in civil 
 suits,' but provided that " no husband shall be compellable to 
 disclose any communication made to him by his wife during the 
 marriage, and no wife shall be compellable to disclose any com- 
 munication made to her by her husband during the marriage;"^ 
 and that " nothing herein shall render any husband competent or 
 compellable to give evidence for or against his wife, or any wife 
 competent or compellable to give evidence for or against her 
 husband in any criminal proceeding."' There was a further 
 provision as to their mutual incompetency in " any proceeding 
 instituted in consequence of adultery ; " but this was repealed by 
 the third section of the Evidence Amendment Act, 1869,'" which Evidence 
 
 . . . AmendmeDt 
 
 enacted that, " The parties to any proceeding instituted in con- Act, 1869. 
 sequence of adultery, and the husbands and wives of such parties, 
 shall be competent to give evidence in such proceeding, provided 
 
 ' 48 & 49 Vict. c. 69, s. 20. 
 
 ^ 57 & 58 Vict. 0. 41, 8. 12. 
 
 * 55 Vict. c. 4, 0. 6. 
 
 * 38 & 39 Vict. c. 63, s. 21. 
 
 ^ I Bl. Com. 443. " But in trials of any sort they are not allowed to be evidence 
 for or against each other, partly becanse it is impossible their testimony should be in- 
 different, but principally because of the union of person ; and therefore if they were 
 admitted to be witness for each other they would contradict one maxim of the law : 
 'Nemo in proprid causd testis esse debet;' and if against each other, they "'""I'l 
 contradict ano'her maxim : ' Nemo tenetur seipsum aceusare.' " 
 
 I' 16 & 17 Vict. c. 83. ' Sect. I. 
 
 8 Sect. 3. 9 Sect. 2. '» 32 & 33 Vict. c. 68. 
 
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246 HUSBAND AND WIFE. [paet i. 
 
 that no witness in any proceeding, whether a party to the suit or 
 not, shall be liable to be asked or bound to answer any question 
 tending to show that he or she has been guilty of adultery, 
 unless such witness shall have already given evidence in the same 
 proceeding in disproof of his or her alleged adultery ; " ' but this 
 section does not permit discovery to be required from a party to 
 divorce proceedings, when it is sought for no other purpose than 
 to prove such party guilty of adultery .° It has been held that 
 this proviso does not render inadmissible the evidence of a witness 
 that he or she has committed adultery, but the witness may 
 claim the protection of the statute.^ 
 
 Before the passing of the Act i6 & 17 Vict. c. 83, providing 
 for the privilege of communications made between husband and 
 wife during marriage, the judges had construed the common law 
 rule which excluded the evidence of husband and wife as affect- 
 ing widowers and widows, so that they were not compelled to 
 disclose communications made to them by their dead spouses,'' , 
 Admissions by and also those who had been divorced were included.' Where a 
 falling -within husband has permitted his wife to act for him in any depart- 
 heraufcority "^^nt of business, her admissions or acknowledgments in respect 
 bind husband, of such business are admissible to charge him ; but she cannot 
 bind him by admissions, unless they fall within the scope of the 
 authority which she may reasonably be presumed to have derived 
 from him.'' 
 Incapacity to MutvMl Incapacity to Steal from one another. — By the common 
 another. law a husband and wife cannot steal from one another, not only 
 
 because of the supposed unity of their persons, but also because 
 of the terrible scandal which would be provoked by the sight 
 of the husband or wife having recourse to the criminal law to 
 settle their mere property disputes ; ' and the adultery of the 
 wife does not give her husband the right to prefer a charge of 
 Exception. larceny against her.' Bat the Legislature, in 188 2,' has thought 
 the law by fit to alter the common law on the matter in some respects, and 
 1882 " ' to enact that a wife may have redress against her husband, and 
 
 a husband against his wife, by way of criminal proceedings (as 
 though they were strangers to each other), for the protection and 
 
 1 Sect. 3. 
 
 ^ Redfern v. Redfern[i?i<)\'\, P. 139. 
 
 ' MebbUihwaite v. Hebhlethwaite, L. R. 2 P. & D. 29. 
 
 * O'Connor v. Marjorihanks, 4 M. & G. 435. 
 
 ^ Munroe v. Twisileton, Peake, Add. Oas. 221 ; Aveson v. Lord Kirmaird, 
 6 East, 192. 
 
 ^ Meredith v. Footner, 12 L. J. Ex. 183. 
 
 ' Hale P. C. 514; 3 Co. Inst. no. 
 
 ^ Beg. V. Kenny, 2 Q. B. D. 307. 
 
 '45 & 46 Vict. c. 75, ss. 12, 16. Sect. 12 gives the wife power to institute 
 criminal proceedings, and sect. 16 enables the husband to do the same. 
 
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CHAP. XII.] GENEEAL EFFECT OF COVERTURE. 247 
 
 security of each other's property, "provided always, that no 
 criminal proceeding shall be taken by any wife against her hus- 
 band by virtue of this Act while they are living together, as to 
 or concerning any property claimed by her, nor while they are 
 living apart, as to or concerning any act done by the husband 
 while they were living together concerning property claimed by 
 the wife, unless such property shall have been wrongfully taken 
 by the husband when leaving or deserting, or about to leave or 
 desert, his wife.'" This proviso applies under section 16, 
 mutatis mutandis, to the right of the husband to institute criminal 
 proceedings against his wife. It seems probable that it will be 
 diflScult under these sections to secure convictions, except in 
 those cases where the husband or the wife has actually left the 
 other, feloniously taking away property belonging to the other, or 
 after the leaving or desertion is complete the deserting spouse 
 returns and unlawfully takes away the goods of the other. As 
 they cannot prosecute each other for acts done during cohabita- 
 tion, it is difficult to see how an act done when " about to leave 
 or desert," that is, before cohabitation is suspended or interrupted, 
 can be the subject of criminal proceedings.^ Runaway wives 
 and their avouterers are more likely under the present law than 
 under the past to be cautious in ascertaining whether the pro- 
 perty taken with them in their flight does or does not belong 
 to the deserted husbands. Several prosecutions have been 
 maintained against wives running off with their husband's 
 property.' 
 
 Mutual Incapacity to Sue each other for Torts. — It has been incapacity to 
 shown that a wife may sue the husband on a contract in respect f"® torts "*''*' 
 
 ' It does not seem necessary to confine criminal prooeedings under this section to 
 simple larcency : but charges involving obtaining money under false pretences, or 
 larcency by a trick, might well be preferred, for they are all offences concerning property, 
 and seem to be within the mischief of this section. 
 
 ^ It is difficult to attribute an exact meaning to the word "leave." Take, for 
 instance, a husband who is known by his wife to be faithless to her, though he cohabits 
 with her, and who by a clear trick obtains money from her. She has a well-founded 
 suspicion from experience on his departure that he will live upon the money with his 
 mistress at some distant town, and will not return to her for at least a week. Can 
 she, under the above section, institute criminal proceedings against him ? If so, many 
 an angry wife will be able to lock up her husband who tricks her out of «■ few 
 shillings wherewith to go and have a drunken bout out of the reach of her reproachful 
 tongue. 
 
 * A W0M.IN Convicted op Eobbino hkr Husband. — At the Worcester Assizes 
 yesterday, Myra Brooks was tried for stealing three £^ notes, £6 los. in gold, and 
 several articles of wearing apparel, belonging to her husband, to whom she was married 
 last year. Ou the 28tii ot December last the prisoner ran away with a man named 
 Fitzpatrick, and with him she subsequently went to her husband's house and broke 
 open a box, and carried away the property which she was now charged with steah'ng. 
 She was found guilty ; and Mr. Justice Stephen, in passing sentence of six months' 
 imprisonment, said he could not imagine a case which would better illustrate the wisdom 
 of the ne^y Act of Parliament than this. It would be a great blot on the law if a 
 woman could do what the prisoner had done with immunity from punishment. — 
 aS'<. James's Gazette, April ig, 1883. 
 
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248 HUSBAND AND WIFE. [paet i. 
 
 of her separate property ; ' it now remains to be seen how far 
 husband and wife can sue each other for personal torts. By the 
 Uommon law common law neither husband nor wife can sue each other for 
 sue ?or per- personal torts committed by one against the other — such as libel, 
 sonai torts. slander, assault and battery, or injury arising out of negligence ; 
 and this was so not only on the ground of the merged existence 
 of the wife, and their incapacity to acquire civil rights against 
 each other,^ but also on account of the unseemly spectacle pre- 
 sented by husband and wife seeking pecuniary compensation from 
 each other for personal wrongs. This disability to sue each 
 other for personal torts still exists ; and neither can take criminal 
 proceedings against the other for defamatory libel.' But by the 
 Exception: twelfth section of the Married Women's Property Act, 1882, a 
 1882. ' "'' married woman is rendered capable of suing her husband for a 
 tort committed by him in respect of her separate property, 
 whether she brings her action during the continuance of the 
 coverture, or after its dissolution by divorce, or suspension by 
 judicial separation. This section does not seem to confer upon 
 the husband a corresponding right to sue his wife for a tort 
 which she may commit in respect of his property." 
 rormerinca- So far as the present law is concerned, a married woman 
 present capaci- Cannot be Said to labour under many incapacities ; indeed, of 
 ties of the wife, j^je years she has become a spoilt child of the Legislature. The 
 favour she has met with in the courts of equity and at the hands 
 of the Legislature has, at all events as regards her relations to- 
 wards her own property, rendered her practically independent of 
 her husband, and placed her on an almost equal footing with 
 unmarried women and widows. As between the spouses equity 
 principles working out in the doctrine of the separate estate,' 
 and legislation adopting those principles, had removed nearly all 
 their former common law mutual disabilities, and had left very 
 little to distinguish their relations to each other from those of 
 two strangers in like matters where property only is concerned : 
 they now can contract with and give and lend to each other. 
 To employ a metaphor, the hard fetters of the common law were 
 dissolved in the crucible of the Separate Use. A superficial 
 observation will discover that a married woman is to all intents 
 and purposes under no disability in respect to her property; and 
 (except where she is expressly restrained from anticipating it) 
 
 ' Woodwards. Woodward, 11 W. E. 1007. 
 Phillips V. Barnett, i Q. B. D. 440. 
 
 ' Beg. V. Lord Mayor of London, i6 Q. B. J). 772. 
 
 ^ Unless the words "except as aforesaid, no husband or wife shall be entitled to 
 sue the other for a tort," give the husband by implication the right to sue his wife for 
 a like tort as for which she may sue him, namely, in respect of his property. 
 
 ^ See post, Separate Estate, chap. x?. 
 
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.CHAP. XII.] GENEBAL EFFECT OF COVERTURE. 249 
 
 she may deal witli it either by act inter vivos or by will, as 
 though sjie were a single woman. Eadical changes of the law 
 on this subject have been brought about ; and where these have 
 been but recently introduced, it has been thought advisable to 
 shortly state what the old law was, not only because the old may 
 in some cases be still operative, but. because some knowledge of 
 the past is at times necessary to explain the present. 
 
 At common law a married woman could not acquire, whether To hold and 
 by gift or contract, any real or personal property, except with her property"* 
 husband's consent, and without such consent the gift or contract incapacity at 
 was void.' But in equity she in time was enabled to receive and cap^ity iT 
 retain control over a gift of real or personal property, if to her equity. 
 separate use, without the consent of her husband. At common 
 law all the real property which she possessed at the time of her 
 marriage, and that which she subsequently acquired, was enjoyed 
 by her husband for his life, even after her death if he became 
 tenant by the curtesy ;^ and he took the rents and profits of it, 
 and could make leases of it to last at least for his life.^ All her 
 personal property at the time of marriage, and subsequently 
 acquired by her, her husband took jure mariti. Equity again 
 interposed on the wife's behalf, and by its operation real property 
 settled to her separate use remained unaffected by any rights of 
 her husband other than those which he might acquire as tenant 
 by the curtesy ; and her personal property, similarly settled, 
 remained her own, and her husband took no interest in it during 
 coverture ; but if she made no disposition of it, and he survived 
 her, he took it jiore mariti. The wife's power of disposition inter 
 vivos over her real estate could be exercised with her husband's 
 consent by levying a fine or suffering a recovery, or on the abolition 
 of these assurances in 1834,'' by a deed executed by herself and 
 her husband, but separately acknowledged by her as directed by the 
 Act. She could also dispose of her separate personal property vested 
 in her, which she was not restrained from anticipating, as if she 
 were a single woman ; her reversionary personal property not settled 
 to her separate use she could not alienate until she was enabled 
 to do so under the provisions of Malins' Act, 1857.' She now Complete 
 possesses complete power of disposition over her real and personal position over 
 property, unless expressly restrained." As regards her testamentary ^^^^^fp^oP^'ty. 
 capacity, it is enough at this point to say that she was incapable of 
 
 1 Co. Litt. 3 a. ^ See ante, chap. xi. 
 
 3 1 Br. H. & W. 196, and the authorities there cited for and against this propo- 
 sition. . J . 00 
 
 •• 3 &4 Wm. IV. c. 74, which is now modified by the Conveyancing Act, 1S»2 
 (45 & 46 Vict. c. 39, s. 7). 
 
 ^ 20 & 21 Vict. c. 57. See post, chap. xv. 
 
 '' 45 & 46 Vict. c. 75, ss. I, sub.-s. I, 19. 
 
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250 
 
 HUSBAND AND WIFE. 
 
 [PABT 
 
 M. W. P. Act, 
 1882, sect. 2. 
 
 Sect, s- 
 Capacity of 
 women mar- 
 ried before 
 January i, 
 1883. 
 
 To make a will 
 Common law 
 incapacity to 
 make will. 
 
 aliening her real property so as to defeat her husband's curtesy 
 rights,' and she could not dispose by will of her personal pro- 
 perty, for at law she had nothing to will away, though if her 
 husband had allowed her to retain or acquire any property, she 
 might with his consent will it away, but he might revoke his 
 consent at any time before her wUl was admitted to probate.* 
 Equity, however, gave her considerable power of alienation over 
 her separate estate, both real and personal ; ' and by the Married 
 Women's Property Act, 1882,^ she possesses complete testa- 
 mentary control over all property, of whatsoever nature and when- 
 ever acquired.* Section 2 of the Act enacts, " Every woman 
 who marries after the commencement of this Act shall be entitled 
 to have and to hold as her separate property, and to dispose of 
 in manner aforesaid, all real and personal property which shall 
 belong to her at the time of marriage, or shall be acquired by or 
 devolve upon her after marriage, including any wages, earnings, 
 money, and property gained or acquired by her in any employment, 
 trade, or occupation in which she is engaged, or which she carries 
 on separately from her husband, or by the exercise of any literary, 
 artistic, or scientific skill." Section 5 enacts, " Every woman mar- 
 ried before the commencement of this Act shall be entitled to have 
 and to hold, and to dispose of in manner aforesaid as her separate 
 property, all real and separate property, her title to which, whether 
 vested or contingent, and whether in possession, reversion, or re- 
 mainder, shall^^accrue after the commencement of this Act, including 
 any wages, earnings, money, and property so gained and acquired 
 by her as aforesaid." In Howard v. Bank of England,^ it was 
 held that the Married Women's Property Act, 1 870, did not 
 enable a married woman to dispose of and deal with trust pro- 
 perty as & feme sole, but the Act of 1882,' confers that right and 
 power upon her. A married woman was enabled by 1 1 Geo. IV. 
 and I Wm. IV. c. 65, s. 3, to appoint an attorney for the purpose 
 of being admitted to her copyhold lands. This is of little practi- 
 cal value now, for a married woman can herself come forward and 
 claim to be admitted, for in respect of her copyhold as well as 
 freehold land she is deemed to be a feme sole.^ 
 
 A married woman was, generally speaking, at common law 
 incapable of making a will affecting the legal estate in her free- 
 hold or copyhold lands, or disposing of her personal property. As 
 regards her realty, she was disqualified, because excepted out of 
 
 ' Lewis Bowles' Case, 11 Co. Eep. 79. 
 
 " See Willock v. Noble, L. R. 7 H. L. Cas. 580. 
 
 Taylor v. Meads, 34 L. J. Ch. 203 
 " Ibid. es. I, sub.-B. I, 2, 5. 
 ' Sect. 18. 
 
 * 45 and 46 Viot. c. 75. 
 
 15 L. E. 19 Eq. 295. 
 
 8 57 & 58 Vict.c. 46, s. 46. 
 
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CHAP. XII.] GENERAL EFFECT OF COVERTURE. 251 
 
 the testamentary powers conferred by the Statute of Wills/ which 
 enactment provided that " the will or testament of a married 
 woman made of any manor, lands, tenements, or other heredita- 
 mentSj by any woman covert, should not be good or effectual in 
 law." The Wills Act of 1837= did not give her any powers 
 which she did not before possess. If a single woman make her 
 will and afterwards marry, the subsequent marriage is a revoca- 
 tion, and entirely vacates the will by force of the eighteenth 
 section of the last-mentioned Act, which declares that "every 
 will made by a ... . woman shall be revoked by ... . her 
 marriage (except a will made in exercise of a power of appoint- 
 ment), when the real or personal estate thereby appointed would 
 not in default of such appointment pass to ... . her heir, 
 customary heir, executor, or administrator, or the person entitled 
 as ... . her next of kin, under the Statute of Distributions." 
 Formerly, such a will, if she survived her husband, did not revive Republication 
 unless republished ; ^ but under the Married Women's Property dllTh^TrSy 
 Act, 1893,^ her will, if made during coverture, will not require "g^'^j^^^^''^' ''"'^ 
 to be re-executed or re-published after the death of her husband, 
 and wUl speak as from her death. This alteration of the law 
 afEects the will of every married woman who dies after the Act 
 has come into operation.' 
 
 But under certain circumstances here enumerated, she was Common law, 
 enabled at common law to make an effectual testament of her to persomi*^ 
 personal property, notwithstanding the fact of the coverture. P™P«fty- 
 She could make a valid will where she bargained with her hus- 
 band for the exercise of the right," or obtained his assent to Husband's 
 a particular will, and he survived her and assented to its being tufXr wiul^ ' 
 proved.' It was not enough to show a general assent, but 
 that he had consented to the particular will made by her ; ' he 
 could therefore revoke his consent at any time during his wife's 
 life or after her death ; though in the latter case, if he acted 
 upon, or agreed to her will, it seems he was not at liberty to 
 retract his assent and oppose probate.'' This bargaining on the 
 part of the wife and the consent of the husband were necessary ; 
 for as marriage operated as a conveyance of the wife's personal 
 property to the husband, she had nothing upon which to exercise 
 
 1 34 & 35 Hen. VIII. c. 5. 
 ^ See I Vict. u. 26, o. 18. 
 ■* I Wms. Exors. 47 n. 
 
 * ^SSc ^y Vict. c. 63, s. 3. This se6tion renders section 24 of the Wills Act, 1837, 
 applicable to the will of a married woman made during coverture, 
 ii Me Wylie, Wylie v. 3Ioffat [1895], 2 Ch. 216. 
 6 I Eop. H. & W. 170. 
 ' Willock V. Nolle, L. E. 7 H. L. 580. 
 
 8 Senley v. Phillips, 2 Atk. 49. 
 
 9 2 Br. H. & "W. 65 ; see In the Goods of S. A. Cooper, 6 P D. 34 
 
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252 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 "Will made in 
 exercise of a 
 power. 
 
 Power of dis- 
 position in 
 equity. 
 
 her disposing power, and the husband's assent amounted to a 
 waiver of his rights as his wife's administrator.' 
 
 She was permitted with her husband's consent to make a will 
 of property coming to her en autre droit, as executrix, because of 
 the absence of any beneficial interest on his part in such pro- 
 perty.' The effect of her will was to pass by a pure right of re- 
 presentation to the testator or prior owner such of his personal 
 assets as remained outstanding, but no beneficial interest in them 
 which the wife might have had in them.^ 
 
 She might also have made a will in cases where her husband 
 was civiliter mortims, as where he was banished or undergoing a 
 sentence of transportation or penal servitude.* 
 
 She might make a will of her real or personal property where 
 she acted under a power of appointment by will ; * and her will 
 was a good execution of the power, if the power subsisted at the 
 time of her death, though the will was executed before she acquired 
 the power. ° If she made a will during coverture in virtue of 
 powers vested, it was not revoked by her surviving her husband.'" 
 
 In equity, however, the right of disposition by will of her 
 separate personal estate (corpus and savings) has been long con 
 ceded to a feme covert as being a necessary incident to the enjoy- 
 ment of her separate property.* She could also dispose of her 
 equitable interests in realty, for both the Wills Acts of Henry 
 VIII.° and of 1 8 3 7 '" were deemed in equity to apply only to 
 lands of a married woman of which her husband stood seised jure 
 uxoris, but not to lands settled to her separate use ; and she could 
 dispose of the whole of her interest in them." For fuller details 
 as to the testamentary powers of married women in equity and 
 under the new Act, see the chapter on Separate Estate.'^ 
 
 Where husband and wife perish through one and the same 
 catastrophe, as by shipwreck, and there is no evidence as to who 
 was the survivor, there is no presumption in law of survivorship 
 in favour of either spouse. '' The onus of proof of death or 
 survivorship is on the person aflSrming the fact." 
 
 ^ 2 Br. H. & "W. 66, et seq. 
 
 ^ iScammeU -v. Wilkinson, 2 East, 552, tS. C. Stephens v. JBagioeU, iK Ves. 139. 
 
 » 2 Br. H. & W. 64. 
 
 •* Ihid. 39. 
 
 ' Sugd. Pow. 153. 
 
 ' Tliomas V. Jones, 32 L. J. Cli. 139. 
 
 '■ See Willock v. Noble, L. R. 7 H. L. 580. 
 
 8 Fettiplace v. Gorges, i Ves. 46, 3 Bro. C. C. 8 ; Stunjis v. Cm-p, 13 Ves. 190 ;■ 
 Taylor v. Meads, 34 L. .J. Ch. 203. 
 's 34 & 45 Hen. VIII. 0. 5. 
 " I Vict. 0. 26. 
 ^^ Taylor v. Meads (ubi svp.). 
 ^' Post, chap. XV. 
 
 1^ Wine/ V. Angt'ave, 8 H. L. Cas. 183 ; In the Goods of Alston [1892], P. 142.. 
 " In the Goods of Shilling, Deac. and Sev. 183. See ante, p. 235. 
 
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CHAPTER XIII. 
 
 OBLIGATIONS ARISING OUT OF COVEETURE. 
 
 PAGE 
 
 Obligation of Husband to Support Wife and Family : 
 
 Statutoey ... 255 
 
 Obligation of Wife to Support Husband and Family : 
 
 Statutory 256 
 
 Liability of Husband and Wife foe Wife's Ante-nuptial 
 Debts and Contracts : 
 
 Husband's: at Common Law 258 
 
 Under M. W. P. Act, 1870 259 
 
 Under M. W. P. Act, 1874 259 
 
 Under M. W. P. Act, 1882 260 
 
 Wife's: Under M. W. P. Act, 1870 .... 263 
 
 Undee M. W. p. Act, 1874 264 
 
 Under M. W. P. Act, 1882 264 
 
 Married Woman as a Contributory ... 265 
 Liability of Husband for Wife's Ante-nuptial Torts : 
 
 At Common Law '^7 
 
 Under M. W. P. Act, 1874 268 
 
 Under M. W. P. Act, 1882 268 
 
 Liability of Husband for Wife's Post-nuptial Torts : At 
 
 Common Law 269 
 
 Under M. W. P. Act, 1882 269 
 
 Liability of Wife foe her Ante-nuptial Torts : Joint at 
 
 Common Law ^7° 
 
 Under M. W. P. Act, 1874 271 
 
 Undee M. W. P. Act, 1882 271 
 
 LLiBiLiTY OF Wife foe her Post-nuptial Torts : Undee 
 
 M. W. P. Act, 1882 271 
 
 Equitable Liability of hbe Separate Estate . . 272 
 Liability of Husband foe Wife's Ante-nuptial Bebaches 
 
 OF Trust and Devastavits 273 
 
 Liability of Wife for her Ante-nuptial Bebaches of 
 
 Trust and Devastavits ^74 
 
 Liability of Husband for Wife's Post-nuptial Breaches 
 
 OF Trust and Devastavits ^'"^ 
 
 Liability op Wife foe hee Post-nuptial Breaches of 
 Trust and Devastavits •••■,', 11/ 
 
 GENERAL Liability of Husband and Wipe under M. W. 
 
 P Act 1882 ...•••** ^ 
 
 Obligation on Surviving Spouse to Bury the Deceased 276 
 
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254 HUSBAND AND WIFE. [paet i. 
 
 Introductory, In this chapter the various liabilities that arise from the fact of 
 coverture will be discussed. As may be expected, coverture even 
 now affects the husband with more liabilities and obligations than 
 the wife. Only one obligation devolves upon the wife, that of 
 supporting under certain circumstances her husband and family ; 
 and this is a creature of statute. In addition to the obligation of 
 supporting his wife and family, the husband on marriage takes 
 over (if the phrase may be used) his wife with certain liabilities. 
 In former days those liabilities contracted by the wife as well 
 before as during the married life were more burdensome upon the 
 husband than at the present time. At the close of a preceding 
 chapter ' it was shown that the incidence of the matrimonial 
 burdens was still unequal ; but apart from these, the interference 
 of the Legislature has equalized the other burdens ; and with but 
 an exception here and there, the husband is not responsible for 
 more than his fair share of liability involved in his wife's trans- 
 actions, and then in return for advantages and profits obtained 
 through her. In the matter of post-nuptial debts and contracts 
 made and entered into by the wife, unless the wife can prove that 
 she was acting as her husband's agent, he is as free and irrespon- 
 sible as a stranger' to her. 
 
 For convenience of discussion and reference, under the heading 
 of each of the different liabilities of the husband will be treated 
 the liability of the wife in that respect, though such liability is 
 not one that, strictly speaking, arises out of coverture. These 
 topics are now of greater intricacy than in earlier days. 
 
 The chapter will be divided into three sections : 
 
 Sect. i. — (d) Obligation of Husband to support Wife and 
 Family. 
 (&) Obligation of Wife to support Husband and 
 Family.- 
 Sect. 2.— (a) LiabiUty of Husband for Wife's Ante-nuptial 
 Debts and Contracts. 
 (b) Liability of Wife for her Ante-nuptial Debts and 
 Contracts. 
 Sect. 3. — («) Liability of Husband for Wife's Ante-nuptial and 
 Post-nuptial Torts. 
 ' (b) Liability of • Wife for her Ante-nuptial and Post- 
 nuptial Torts, 
 (c) Liability of Husband and Wife for Wife's Ante- 
 nuptial and Post-nuptial Breaches of Trust and 
 Devastavits. 
 
 ^ Chap. ix. 
 
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CHAP. XIII.] OBLIGATIONS OF COVERTURE. 255 
 
 Section I. 
 a. Obligation of Husband to support Wife and Family. 
 The husband, as head of the household, is under an obligation obligation of 
 to support and maintain his wife and family.' This obligation suppraf wife 
 was, until quite recently, rather moral than legal. ^^^ family. 
 
 It was not until his wife became actually chargeable to a parish statutory lia- 
 or union that he was liable to be punished for refusing or neglect- ^eVcomes 
 ing to support her, and then only as a rogue and a vagabond.^ The <=bargeabie. 
 wife, in truth, had no claim on her husband, even when starving 
 and deserted by him ; the guardians or overseers of the union or 
 parish, the charges of which have been increased by his wrong- 
 doing, alone could bring the ofiender to justice under the Poor 
 Law Amendment Act, 1868, and recover the price of her main- 
 tenance from him,^ and the justices in making their order are not 
 limited by the amount already allowed by the guardians, or obliged 
 to wait till they have fixed the sum.^ A husband is not liable Desertion and 
 to be proceeded against under the Poor Law Amendment Act, Vife free hus- 
 1868,° so as to be compelled to maintain his wife who has left ch^ eabuitv 
 him and lives in adultery, or as a prostitute.^ This obligation on 
 the part of the husband to provide for the maintenance and 
 support of wife and family leads up to the consideration of his 
 liability to be bound by the contracts of his wife for the supply of 
 necessaries. But this question will be dealt with in Chapter XIV. 
 which treats of Contracts by Married Women. 
 
 Under the Summary Jurisdiction (Married Women) Act, 1895,^ Husband 
 which repeals the Married Women (Maintenance in case of Deser- wife, when 
 tion) Act, 1886,' a husband who deserts his wife, or is guilty oi'^J^^^^^^Xw 
 persistent cruelty to her, or wilfully neglects to provide reasonable a^^i family- 
 maintenance for her or her infant children whom he is legally 
 " bound to maintain, and has by such cruelty or neglect caused her 
 to leave and live separately and apart from him^ may be ordered 
 on a summons heard by justices in petty sessions'" to pay to his 
 wife or some other person on her behalf a weekly sum not 
 exceeding £2}'^ But a wife who has been guilty of adultery 
 
 ^ The duty of the father and mother to support their children will be discussed in 
 Part II., Parent and Child, chap. ii. 
 
 2 Under 5 Geo. IV. c. 83, S3. 3 and 4 ; Heath v. Eeape, 26 L. J. M. C. 49. 
 
 ^ 31 & 32 Vict. c. 122, 8. 33. 
 
 * Dinning v. The South Shields Union, 13 Q. B. I). 25. 
 
 5 Tj ^ ^2 Vict. C. 122 S, ^'^. 
 
 ^ Cidley v. Charman, 7 Q. B. D. 89 ; see Sibhel v. Ainslie, 3 L. T. S83' 
 '' 58 & 59 Vict. c. 39. This is a most crude and unintelligible title, 
 ^ 49 & 50 Vict. c. 52. 
 
 " See sect. 8. It is difficult to see how the procedure is to be carried out under 
 this section when the husband has been convicted on indictment. 
 " Sect. £. 
 
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256 HUSBAND AND WIFE. [part i. 
 
 whicli has not been condoned or connived at or brought about by 
 the husband's neglect or misconduct is disentitled to such an 
 order.' After an order for payment of such alimony has been 
 made, it may be discharged on proof of resumption of voluntary 
 cohabitation or subsequent adultery,^ The husband or the wife 
 has the right to apply to the justices, at any time, to rehear on 
 fresh evidence such summons ; and they may, on such applica- 
 tion confirm, discharge, or vary the original order.' The justices 
 may refuse to make an order under this Act, and leave the 
 parties to go to the High Court.* 
 ObUgation of 6. OUigation of the Wife to Support Husband and Family. — 
 supp^t\*us- Prior to the Married Women's Property Act, 1870, there was no 
 band and common law or statutory liability on a married woman even if 
 Notrecognized possessed of Separate estate, to support her husband or family, 
 atoommoniaw. y^Qj^ ghe became a widow, and was of sufficient ability, she was 
 at once rendered liable under the Poor Law Act of Elizabeth *" 
 to maintain her children and grandchildren. In return for the 
 benefits conferred upon her by the Act of 1870, she was rendered 
 for the first time liable (if possessed of separate property) to 
 support her husband and family. Before then the parish or 
 union authorities could not come against her for the charges 
 incurred by them, and so make her contribute towards his or their 
 support.' The Act of 1870 provided that " where in England 
 the husband of any woman having separate property becomes 
 chargeable to any union or parish, the justices having jurisdiction 
 in such union or parish may, in petty sessions assembled, upon 
 application of the guardians of the poor, issue a summons against 
 the wife, and make and enforce such order against her for the 
 maintenance of her husband as by the thirty-third section of the 
 Poor Law Amendment Act, 1868, they may now make and 
 enforce against a husband for the maintenance of his wife who 
 becomes chargeable to any union or parish. Where in Ireland 
 relief is given under the provisions of the Acts relating to the 
 relief of the destitute poor to the husband of any woman having 
 separate property, the cost price of such relief is hereby declared 
 to be a loan from the guardians of the union in which the same 
 shall be given, and shall be recoverable from such woman as if 
 she were &feme sole by such and the same actions and proceed- 
 ings as money lent.' A married woman having separate pro- 
 perty shall be subject to all such liability for the maintenance 
 of her children as a widow is now by law subject to for the 
 
 ^ Sect. 6. 2 Sect. 7. s lUd. 
 
 * Sect. 10. 6 43 Eliz. c. 2, s. 7. 
 
 " Haley v. Bannister, 4 Madd. 280 ; Eodgens v. Hodgens, 4 CI. & F. 323. 
 
 ' 33 & 34 Vict. c. 93, s. 13. 
 
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CHAP. XHi.] OBLIGATIONS OF COVERTURE. 257 
 
 maintenance of her children : provided always, that nothing in 
 this Act shall relieve her husband from any liability at present 
 imposed npon him by law to maintain her children."^ The 
 husband still remained primd facie liable ; and separate estate 
 was a necessary condition to a married woman being rendered 
 liable.2 Under this fourteenth section a married woman with Married 
 separate estate was held not liable for the support of her grand- uaMe for'sup- 
 children;^ but by section 21 of 45 & 46 Vict. c. 75, her liability P°^^°^^^f^g^ 
 is now extended to their support. That section is as follows : 
 " A married woman having separate property shall be subject to 
 all such liability for the maintenance of her children and grand- 
 children as the husband is now by law subject to for the main- 
 tenance of her children and grandchildren : provided always, that 
 nothing in this Act shall relieve her husband from any liability 
 imposed npon him by law to maintain her children or grand- 
 children." Her liability to maintain her husband is provided for 
 by section 20, which is a re-enactment of section 13 of the 
 Act of 1870. A married woman with separate estate is now 
 brought under the operation of the Poor Law Amendment Act 
 in respect of her statutory liability in the same manner as her 
 husband. 
 
 On the analogy of those cases which decided that the adultery Desertion and 
 of the wife living apart from her husband disentitled her to be husband dis- 
 maintained by him, it is suggested that the adultery of the ™^*'^^j^.j^™^° 
 husband under like circumstances would disentitle him to be wife, quare. 
 maintained by his wife.* 
 
 Section 2. 
 
 a. LiaUUty of Hiisbavd and Wife for the Wife's Ante-nwptial 
 Debts and Contracts. 
 
 This section will be divided into two parts : i. The liability of Liabiutyof 
 the husband for his wife's ante-nuptial debts and contracts ; ^fe for wife's 
 2. The liability of the wife for her ante-nuptial debts and con- ^^|[,^-°^P^'*^ 
 tracts. Owing to frequent and recent changes of legislation, contracts. 
 this question of the liability of the husband and wife for her 
 ante-nuptial debts and contracts must be considered with refer- 
 ence to four different periods. Spouses married before August 9, 
 1870, are under the common law. Those married between that 
 date and July 30, 1874, are under the Married Women's Pro- 
 perty Act, 1870.' Those married between the latter date and 
 January i, 1883, are under the Married Women's Property Act, 
 
 1 Sect. 14. ^ See Teters v. Cowie, 2 Q. B. D. 131. 
 
 3 Ooleimm v. Overseers of Birmingham, 6 Q. B. D. 615. 
 
 4 See anU, p. 255. ^ 33 & 34 Vict. 0. 93- 
 
 R 
 
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^'58 
 
 HUSBAND AND WIFE. 
 
 [PAKT I. 
 
 Husband's lia- 
 bility for wife' 
 ante-nuptial 
 debts. 
 
 At common 
 law. 
 
 Liability 
 
 ceases with 
 the tennina- 
 tion of the 
 coverture. 
 
 Otherwise, 
 where he is her 
 administrator. 
 
 1870, Amendment Act, 1874.' Those married on and after 
 January i, 1883, are under the Married Women's Property Act, 
 1882.^ 
 
 I. Husband's liability for wife s ante-nuptial debts and contracts 
 ' at common law. — The common law liability of husbands married 
 before August 9, 1870, for the debts contracted by their wives 
 before marriage has been described in the following terms : ' 
 " With respect to debts which the wife contracted while single, 
 and remained due at the time of the marriage, the husband is 
 liable, and it is but reasonable that the law which, by the 
 marriage, gives to the husband all his wife's personal estate in 
 possession, and the power of recovering or disposing of all her 
 personal property in action or in contingency, that by possibility 
 may fall into possession during the coverture, should make the 
 husband liable for his wife's debts owing at the period of the 
 marriage. This liability, however, as it originates in the marriage, 
 ceases with it, so that if the debts be not recovered during its 
 continuance, the husband will be discharged if he survive his 
 wife,* unless the creditor had recovered judgment against them 
 in her lifetime." * The discharge of the husband will not be 
 altered although he may have received a large fortune with his 
 wife, and it seems to be just, because his liability would have 
 been the same if he had received nothing with her. But a dis- 
 tinction prevails upon this subject which is necessary to be 
 attended to, viz., between such part of the wife's estate which the 
 husband receives qud maritus, and such portion of it as does not 
 belong to him in that character, but as the administrator of his 
 wife ; ^ in the first case, his responsibility for his wife's debts due 
 at the period of the marriage determines with her life ; in the 
 second, he is liable to answer to the extent of her assets, for since 
 he cannot recover her property outstanding at her death, except 
 as her administrator, it will, as in ordinary cases, be assets to pay 
 her debt." His liability thus extended to the full extent of the 
 assets received by him in such capacity. In order to free the 
 husband, it was not necessary that the coverture should be deter- 
 mined by death alone ; the sole liability of the wife revived on a 
 decree of judicial separation.' 
 
 Act. 
 
 1 37 & 38 Vict. 0. so. 
 
 2 45 & 46 Vict. c. 75. 
 
 The 1st of January 1883 is the date of the operation of this 
 
 3 1 Eop. H. & W. 73. ■! Roll. Abr. 351. 
 
 ^ Heard v. Stamford, 3 P. Wms. 409. This state of the law was distasteful to 
 Lord Chancellor Nottingham (1676), who said he would change it. See Freeman 'V 
 Goodlmm (Ooodland), 1 Ch. Cas. 295. " Ibid. 
 
 ' Turner v. Caulfield, L. R. 7 Ir. Ch. 347. 
 
 » See Oapel v. PoweU, 34 L. J. C. P. 168. 
 
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CHAP, xiii.] OBLIGATIONS OF COVERTURE. 259 
 
 Husbands married between August 9, 1870, and July 30, underM.w. 
 1874. — The liability of husbands married between these dates ^•. ■*■"'' ''^70.' 
 for their wives' ante-nuptial debts was done away with by husban/done 
 section 12 of the Act of 1870, which was to the following effect : ^^"y^"''- 
 " A husband shall not, by reason of any marriage which shall 
 take place after this Act has come into operation, be liable for 
 the debts of his wife contracted before marriage ; but the wife 
 shall be liable to be sued for, and any property belonging to her 
 for her separate use shall be liable to satisfy such debts, as if 
 she had continued unmarried.' Under this section, if a woman Effect of Act. 
 brought a large fortune to her husband, but owed a considerable 
 amount of ante-nuptial debts, her creditors were defeated of 
 their just rights in respect to the property so acquired by the 
 husband. Though of no practical importance now, the immunity 
 of husbands from liability is preserved to them.^ But in respect 
 of their wives' ante-nuptial contracts, their primary and joint 
 liability remained unaffected, and it was necessary to sue the 
 husbands jointly with their wives.' 
 
 Husbands married hetiueen Jidy 30, 1874, and January i, Under M.w. 
 1883.— To remedy the mischief just alluded to, the Married ^j ^^'' '^7'^- 
 Women's Property Act, 1874, was passed; and by its terms the husbaid for 
 liability of the husband for his wife's ante-nuptial debts was in ,^'ptiafdebts 
 part restored on the principle enunciated in its preamble, that it ™ p*"^' 
 was not just that the property which a woman had at the time of 
 her marriage should pass to her husband, and that he should not 
 be liable for debts contracted before the marriage. But his 
 liability for her ante-nuptial contracts was placed on the like 
 footing as that for her debts, and for the first time a limited 
 liability in the husband for his wife's ante-nuptial breaches of 
 contract was recognized. The short effect of the Act is to render 
 the husband primd facie liable ^ for his wife's ante-nuptial debts 
 and breaches of contract, and jointly suable with her " to the 
 extent of her assets that have come into his hands.' He is liable 
 to the extent of the assets and funds actually in hand, and only 
 to that extent will the judgment be joint against him and his 
 
 ^ Conlon V. Moore, 9 Ir. C. L. 190. 
 
 2 By the proviBO in sect. 14 of 45 & 46 Vict. 0. 75, to the effect that nothing in 
 that Act should operate to increase the liability of any husband married before the 
 commencement of the Act in respect of any debt of his wife, such debt being an ante- 
 nuptial one. 
 
 ' Hancock v. Lablache, 3 C. P. D. 197. 
 
 * This priTiid fame liability renders unnecessary an allegation by the party suing 
 that the husband received assets of his wife on his marriage ; it is for the husband to 
 exercise his option of pleading non-liability under the statute. Matthews v. Whittle, 
 13 Ch. D. 811. ' Sects. I and 2. 
 
 ^ Sect. 2. — The husband shall in such action, and in any action brought for damages 
 sustained by reason .... of the breach of any contract made by the wife before 
 
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260 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Husband liable 
 only to extent 
 of assets. 
 Wife sepa- 
 rately liable 
 for residue of 
 debt, &o. 
 
 Under M. W. 
 P. Act, 1882. 
 
 Husband 
 liable for his 
 wife's ante- 
 nuptial debts 
 and contracts 
 to a limited 
 extent. 
 
 wife, and the latter will be separately liable for the residue of 
 the debt ; ' so, too, where a judgment is bond fide recovered in an 
 action against him in respect of and to the extent of such assets, 
 he is free from further liability involved by such debts in any 
 subsequent action, though commenced before judgment signed in 
 the first action.^ Though the husband and wife may be jointly 
 sued for the latter's ante-nuptial debts, if the action be not 
 brought during coverture, and the wife survives, she is liable for 
 them as a fevie sole ; ' but to render the husband liable under this 
 Act, both he and his wife must be jointly sued as at common law 
 during coverture." The joint liability of the spouses affected by 
 this Act are still preserved.* 
 
 Husbands married on and after January i, 1883. — A hus- 
 band marrying under the present law is affected by the provisions 
 of section 14 of 45 & 46 Vict. c. 75, which, so far as is material 
 to the subject under discussion, is as follows : — " A husband shall 
 be liable for the debts of his wife contracted, and all contracts' 
 entered into .... by her before marriage, including any lia- 
 bilities to which she may be so subject under the Acts relating 
 to joint-stock companies as aforesaid,' to the extent of all 
 property whatsoever belonging to his wife which he shall have 
 
 marriage, be liable for the debt or damages respectively to the extent only of the assets 
 hereinafter specified. 
 
 Sect. S. — The assets in respect of and to the extent of which the husband shall in 
 any such action he liable, are as follows : — 
 
 (l.) The value of the personal estate in possession of the wife which shall be vested 
 in the husband : 
 
 (2. ) The value of the choses in action of the wife which the husband shall have 
 reduced into possession, or which with reasonabie diligence he might have 
 reduced into possesssion : 
 
 (3. ) The value of the chattels real of the wife which shall have vested in the hus- 
 band and wife : 
 
 (4. ) The value of the rents and profits of the real estate of the wife which the 
 husband shall have received, or with reasonable diligence might have 
 received : 
 
 (5.) The value of the husband's estate or interest in any property, real or personal, 
 which the wife in contemplation of her marriage with him shall have trans- 
 ferred to him, or to any other person : 
 
 (6.) The value of any property, real or personal,, which the wife in contemplation 
 of her marriage with the husband, shall with his consent have transferred 
 to any person with the view of defeating or delaying her existing 
 creditors : 
 
 Provided that when the husband after marriage pays any debt of his wife, or has a 
 judgment hondfide recovered against him in any such action as is in this Act men- 
 tioned, then to the extent of such payment or judgment the husband shall not in any 
 subsequent action be liable. 
 
 ^ Sect. 4. 2 jTeaj- V, Castle, 8 Q. B. D. 380. 
 
 3 Chuhh V. Stretch, L. E. 9 Eq. 555. 
 
 * Bell V. Stacker, 10 Q. B. D. 129. 
 
 ^ See provisos in sects. 13 and 14, 45 & 46 Vict. c. 75. 
 
 ^ Contract under this Act includes the acceptance of any trust, or of the ofiSoe of 
 executrix or administratrix, sect. 24. 
 
 ' See j30si, p. 265. 
 
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CHAP. XIII.] OBLIGATIONS OF COVERTURE. 261 
 
 acquired or become entitled to, from, or through his wife ' after 
 
 deducting therefrom any payments made by him, and any sums 
 
 for which judgment may have been iond fide recovered against 
 
 him in any proceeding at law, in respect of any such debts and 
 
 contracts .... for or in respect of which his wife was liable 
 
 before her marriage as aforesaid : but he shall not be liable for 
 
 the same any further or otherwise ; and any court in which a 
 
 husband shall be sued for any such debt shall have power to 
 
 direct any inquiry or proceedings which it may think proper for 
 
 the purpose of ascertaining the nature, amount, or value of such 
 
 property : Provided always, that nothing in this Act contained Proviso pre- 
 
 shall operate to increase or diminish the liability of any husband ing^|ll?fand 
 
 married before the commencement of this Act for or in respect of liabiUtiea. 
 
 any such debt or other liability of his wife as aforesaid." Under 
 
 this section and section 15'^ it is not now necessary to bring a 
 
 joint action against the husband and wife, i.e., during coverture, 
 
 but the husband may be sued alone, even after the termination of 
 
 the coverture; and the case of Bell v. Stacker^ does not apply to 
 
 husbands married after January i, 1883. An unsatisfied 
 
 judgment recovered against a wife for an ante-nuptial debt is 
 
 no bar to an action for the same against the husband under 
 
 section 13 of the Married Women's Property Act, 1882.'' But 
 
 the husband cannot be made liable for an ante-nuptial debt of his 
 
 wife which has accrued due against the wife more than six years 
 
 before action brought.^ 
 
 If a husband marry a wife who has entered into an ante- Husband's 
 nuptial contract in a representative capacity as trustee, executrix, ^{g.g ^nte- 
 or administratrix, he will be liable on it only to the extent "."p*?*^^'*'''''" 
 
 ' _ ■' ties in her 
 
 of her assets acquired by him (unless recovered by other representative 
 
 creditors in bond fide suits). If he were to adopt his wife's con- "^^*°' ^' 
 
 tract, and in so doing alter in any way the position of the 
 
 parties, it is probable that he would be held solely liable, or at 
 
 any rate jointly liable with her to the full extent, though 
 
 his conduct might not amount to an actual intermeddling with the 
 
 trust. 
 
 There can be litble doubt that an important alteration has Hnsband'a 
 been effected by the Act of 1882, as regards the husband's ^e^peotVo'' 
 
 wife's ante- 
 
 1 It seems that the words " become entitled to from or through his wife " can only ^"P*'*^ shares, 
 refer to cases where by a settlement, if ante-nuptial (to defeat creditors), or ifpost- 
 
 nuptial (without valuable consideration), the husband takes an estate or interest in his 
 wife's real or personal property, or where he survives and takes her undisposed of real 
 or personal estate, as tenant by the curtesy, or her administrator. In any other way he 
 cannot become "entitled," for his marital rights are by this Act abrogated and swept 
 away. 
 
 2 But see post, p. 266. " Vbi sup. 
 * Bech V. Pierct, 23 Q. B. D. 316. ■' 1^'d- 
 
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262 HUSBAND AND WIFE. [paet i. 
 
 liability for calls, or to be made a contributory in respect of tis 
 wife's shares acquired by her before marriage. Section 78 of 
 the Companies Act, 1862,' makes a husband contributory in 
 respect of such shares. In a recent case,^ in which the bank 
 shares of a woman married in 1878 were settled to her separate 
 use, and remained registered in her name till the bank suspended 
 payment, and calls were made upon the shareholders, including 
 the husband of the married woman. Fry, J., decided that the 
 husband was liable to be made a contributory in respect of his 
 wife's shares, though he had received no assets of his wife on 
 marriage. The ground of the decision was that, although under 
 section 75 of the Companies Act, 1862, the liability of a con- 
 tributory is a debt from the time of becoming a shareholder, such 
 a liability is a statutory liability, having very peculiar incidents 
 of its own under section 78, which makes the husband himself a 
 contributory, and, consequently, distinguishes such liability from 
 ordinary ante-nuptial debts so as not to be within section 5 of 
 the Act of 1874. In other words, the husband was a contribu- 
 tory in his own right, and his liability was a debt due from himself, 
 and was not a mere ante-nuptial debt of his wife.^ Now the 
 14th section of the Act of 1882, which expressly provides that a 
 husband shall be liable for his wife's ante-nuptial debts and con- 
 tracts, " including any liabilities to which she may be so subject 
 under the Acts relating to joint-stock companies as aforesaid, to 
 the extent of all property whatsoever belonging to his wife which 
 he shall have acquired or become entitled to from or through his 
 wife, &c. ; lut he shall not he liable for the same any further or other- 
 Kepeai by wise" must be taken to overrule this decision ; and by its incon- 
 2™V26Vict° sistency with section 78 of the Companies Act, 1862, to repeal 
 ■ ^- 78- it by implication."' Thus, if a husband acquires no property 
 with his wife on marriage he is free from any liability to be 
 made a contributory in respect of her shares ; and if he does 
 acquire property on marriage he is liable in accordance with the 
 provisions and exceptions of the Act to be put on the list of con- 
 
 1 25 & 26 Vict. u. 89. Section 78 runs: "If any female contributory marries either 
 before or after she Las been placed on the list of contributories, her husband shall, 
 during the continuance of the marriage, be liable to contribute to the assets of the 
 company the same sum she would have been liable to contribute if she had not married; 
 and he shall be deemed to be a contributory accordingly." 
 
 ^ Ex parte Hatcher, Be West of England Bank, 12 Ch. D. 284. 
 
 " This decision may technically be right, but seems to be somewhat opposed to the 
 intention of the Legislature in the Married Women's Property Act, 1874. 
 
 ^ This argument is strengthened by section 7 of the Act of 1882, which provides 
 that " all shares .... which after the commencement of this Act shall be allotted to, 
 or placed, registered, or transferred in or into, or made to stand in the sole name of any 
 married woman, shall be deemed, unless and until the contrary is shown, to be her 
 separate property, in respect of which so far as any liability may be incident thereto 
 her separate estate shall alone be liable." 
 
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 c. 
 
CHAP. XIII.] OBLIGATIONS OF COVERTURE. 268 
 
 tributories in respect of his wife's shares to the amount of the 
 property so received by him.' 
 
 2. Liability of Wife for her ante-nuptial debts and contracts.— Liability of 
 The liability of a married woman for her ante-nuptial debts and anteiuptiai 
 contracts must also be regarded within the like four periods ^"^^^ ^'^^ 
 as that of the husband. At common law it has been seen that Before m! w. 
 the liabiUty of the husband for his wife's ante-nuptial debts ^- ^'='' '^^o- 
 lasted only during coverture ; and if she survived she became 
 liable;^ so, too, if he became bankrupt, she became in equity 
 again liable to the extent of her property settled to her separate 
 use.' 
 
 Wives married between Aiogust 9, 1870, ctnd July 30, 1874. — Under m.w. 
 Section 12 of the Act of 1870 released a husband from all liability ^- -*^*''' '^^o- 
 in respect of his wife's ante-nuptial debts, and transferred that Sole liability 
 liability to the latter, who became liable to be sued alone for antenuptial"" 
 them, and any property belonging to her for her separate use was <'«''*5' 
 liable to satisfy such debts as if she had continued unmarried. 
 These words are very full and not limited in their sense, and 
 under them her separate property is liable to satisfy the claims 
 of her ante-nuptial creditors, though the fund is subject to a 
 restraint against anticipation ; and it is immaterial whether her 
 separate property was settled on marriage or otherwise, and by 
 herself or some third person.* A judgment creditor's charging 
 order on the wife's interest in a fund to her separate use was 
 held a valid encumbrance ; '" and an execution creditor who had 
 sued a married woman alone under this section was held entitled 
 to seize jewels settled to her separate use by an ante-nuptial 
 settlement.^ Her liability to be sued in equity for her ante- 
 nuptial debts was a liability to be sued in equity for the purpose 
 of attaching her separate estate.' There is no need, in entering 
 np the judgment on such an ante-nuptial debt against her, to 
 prove the existence of separate property at the date of the judg- 
 ment.^ The proper form of judgment in this class of action is 
 given in Axford v. Beid.^ Women married between these two 
 dates are still solely liable (if at all), notwithstanding recent 
 changes in legislation.'" 
 
 ■' This is in the opinion of those -writers who have annotated the Act of 1882. 
 
 ^ Woodman v. Ohapman, i Camp. 189. 
 
 2 OJiiibh V. Stretch, L. E. 9 Eq. 555. 
 
 ^ Axford V. Beid, 22 Q. B. D. 548. 
 
 ^ Sanger v. Sanger, L. E. 11 Eq. 470 ; London and Provincial Bank v. Bogle, 
 7 Ch. D. 773. ^ Williams v. Mercier, 9 Q. B. D. 337. 
 
 '' Per Cotton, L. J., in Ex parte Jones, Re OrisseU, 12 Ch. J). 484, 491. 
 
 ' Downe v. Fletcher, 21 Q. B. D. 11. 
 
 ' 22 Q. B. D. 548. " It is adjudged that the plaintiffs do recover the sum of £ and 
 costs to be taxed against the defendant (the married woman), such sum and costs tobe 
 payable out of her separate estate whether subject to any restraint against anticipation 
 or not, and not otherwise." ^o 45 & 46 Vict. c. 75, s. 13 (proviso). 
 
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264 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Under M. W. 
 P. Act, 1874. 
 
 Under M. W. 
 P. Act, 1882. 
 
 Wife's separate 
 estate prima- 
 rily liable for 
 ante-nnptial 
 debts and con- 
 tracts. 
 
 Probable effect 
 of the new- 
 state of the 
 law on this 
 point. 
 
 Wives married hetween July 30, 1 874, and December 31, 1882. 
 — As the wife could defeat her creditors under the foregoing 
 state of affairs by marrying without a settlement, in which case 
 her husband took all her property not settled to her separate use, 
 but was not liable to be sued for her ante-nuptial debts, this 
 mischief was remedied by the Act of 1874,' which rendered the 
 husband and wife jointly liable for her ante-nuptial debts, the 
 husband's liability being proportioned to the amount of the assets 
 received by him in right of his wife.^ Though the liability of 
 the husband to the extent of the assets received by him in right 
 of his wife is joined to that of the wife under this statute, yet 
 the liability of her separate property (though subject to the 
 restraint against anticipation) to make good the claims of her 
 ante-nuptial creditors remains the same/ 
 
 Wives married on and after January i, 1883. — "A woman 
 after her marriage shall continue to be liable in respect and to the 
 extent of her separate property for all debts contracted . . . .by 
 her before her marriage ; . . . . and she may be sued for any 
 such debt ; . . . . and all sums recovered against her in respect 
 thereof, or for any costs relating thereto, shall be payable out of 
 her separate property; and, as between her and her husband, 
 unless there be any contract between them to the contrary, her 
 separate property shall be deemed to be primarily Uable for all 
 such debts .... and for all costs recovered in respect thereof : 
 Provided always, that nothing in this Act shall operate to 
 increase or diminish the liability of any woman married before 
 the commencement of this Act for any such debt .... as afore- 
 said, except as to any separate property to which she may become 
 entitled by virtue of this Act, and to which she would not have 
 been entitled for her separate use under the Acts hereby repealed 
 or otherwise, if this Act had not passed." The effect of this 
 section enables the ante-nuptial creditor to be paid out of the 
 whole of the property of the married woman, so far as it is not 
 affected by a valid settlement. The Statute of Limitations now 
 runs against her creditors, for the fiduciary character of her 
 separate property no longer exists as a necessary ingredient.* 
 This alteration in the law is of the utmost moment, and it is not 
 too much to say that it revolutionizes ideas that were current on this 
 subject. Up to this time the husband had been primarily liable 
 (whether to the full extent of his assets at common law, or to the 
 more modified extent under the Married Women's Property Act, 
 1874. But now a woman married after January i, 1883, is made 
 
 ' 37 & 38 Vict. c. so. 2 See ante, p. 259. 
 
 8 Axford V. Beid, 22 Q. B. D. 548. 
 
 * Be Hallett, Hastings v. Fhdlett, 35 Ch. D. 94. 
 
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CHAP. XIII,] OBLIGATIONS OF COVERTURE. 265 
 
 for the first time primarily liable for her ante-nuptial debts and 
 contracts. Not only is the former protection of coverture taken 
 away from her, but she is rendered solely and primarily liable for 
 these liabilities, both where her creditor chooses to proceed against 
 her single-handed, and where he brings his action jointly against 
 her and her husband, and the latter insists upon being recouped 
 for any expenses and charges to which he may have been put in 
 the action in which he is found to be not liable in respect of the 
 ante-nuptial debt, &c. But the effect of section 19, which 
 preserves the effect of restraint upon anticipation, prevents any 
 property settled on her subject to the fetter from being taken in 
 execution for such debt, unless she herself while so indebted has 
 settled it on herself on marriage.^ A woman married before the 
 above date may be sued as a, feme sole, and her separate property 
 rendered chargeable in respect of a liability created before the 
 passing of the Act.^ Her primd facie responsibility for contracts 
 made by her is complete under the Married Women's Property 
 Act, 1893-' 
 
 As regards the debts and contracts made by a wife before Liability of 
 marriage in a representative capacity as trustee, executrix, or ^ntative'capa- 
 administratrix, she is primd facie liable for them ; * and her <=''?• 
 husband is only jointly liable with her for them in cases where 
 he has acquired or become entitled to any of her property to the 
 extent of the assets received by him," or where he has acted or 
 intermeddled with the trust or administration." 
 
 A married woman formerly was not at law liable during cover- Married 
 ture to be made a contributory in respect of shares and stock tnbutories. 
 held by her previous to marriage ; but in equity her separate 
 property alone was liable to make good the claims against her,' 
 and the savings of her separate estate were liable to indemnify 
 her trustee against all calls and liabilities incurred on her behalf 
 in respect of shares standing in the trustee's name.* Under the ^"^^^'j-'^g^' 
 Act of 1870 she could be the legal owner only of fully paid-up married 
 shares, debentures, or other stock in any company or society to b6°^er°of 
 which no liability was attached." Her husband, as has teen only M^y paid- 
 seen, was liable as a contributory, but only for losses incurred by 
 the company during the period of coverture,'" unless he himself 
 
 ^ Jay V. BoUnscm, 25 Q. B. D. 467. In this case a judgment had been recovered 
 against a married -woman who subsequently obtained a dissolution of her marriage and 
 married again, settling her property on herself without power of anticipation. The 
 Court of Appeal held that the judgment was a debt contracted by her before her second 
 marriage. See also the form of judgment in Scott v. Morley, 20 Q. B. D. 132, and in 
 Axford-v. Beid (uhi sup.). , ™, . , t. v r> -d 
 
 2 The Gloucestershire Banldng Go. v. Phillipps, (Greacjh, Third Party,) 12 Q. iJ. 
 D- 533- ' 56 & 57 Vict. c. 63. « Sect. 18. ^ Sect. 14. " Sect. 24. 
 
 ^ Mrs, MathewmmCs Case, L. E. 3 Eq. 781. 
 
 a Butler v. Gumpstcm, L. E. 7 Eq. 16. " 33 & 34 "Vict. c. 93, ss. 4 and 5. 
 
 i» Ex parte Hatcher, Re West of England Bank, 12 Ch. D, 284. 
 
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266 HUSBAND AND WIFE. [part i. 
 
 was a shareholder ; ' and he was not liable at all when the com- 
 pany's deed of settlement forbade the husbands of mamed women 
 shareholders to be placed on the list of contributories in respect 
 of their wives' shares.^ Under section 13 the ante-nuptial debts 
 and contracts for which a married woman is expressly rendered 
 liable includes sums for which she may be liable as a contributory 
 either before or after she has been placed on the list of contribu- 
 tories. This section then, it seems, overrules Hatcher's Case;^ 
 and the married woman is rendered solely liable to the extent of 
 her separate estate, while the husband will incur no liability at 
 all if he has received no assets from or through his wife, and 
 only proportionally to their extent and amount when he has so 
 No company, received them. As a measure of protection to companies and 
 to'accept a ^ Societies it is provided " that nothing in this Act shall require or 
 woma^asa authorize any corporation or joint-stock company to admit any 
 holder of married woman to be a holder of any shares or stock therein 
 liability to which any liability may be incident, contrary to the pro- 
 
 *on^rsry to its visious of any Act of Parliament, charter, bye-law, articles of 
 
 
 
 regulations, association, or deed of settlement regulating such corporation or 
 company." ^ If it were not for this protection companies might 
 be compelled to take as shareholders those whose only personal 
 estate might be the shares held by them, and whom it would be 
 futile to sue on their liability. The liability of a woman married 
 before this Act came into operation in respect of property which, 
 but for its passing, would not have been her separate property, 
 is governed by the Act. As to her separate property to which 
 she became entitled before January i, 1883, her liability is not 
 increased, but remains the same according to the date of her 
 marriage before the commencement of the Married Women's 
 Property Acts of 1870 and 1874 respectively.* The liability 
 of a married woman for her ante-nuptial debts and contracts 
 was and still is a personal one ; " so that if judgment 
 is signed against her, and she fails to satisfy it while pos- 
 sessing means, she may be committed to prison under the Debtors' 
 Act.' 
 
 Husband may The husband may be sued alone, or jointly with his wife, for 
 
 06 8116(1 81I0ZI6 ' u If ' 
 
 or jointly for her ante-nuptial debts or contracts, at the option of her creditor .° 
 nuptial* debte.^' Where he has received no assets he will not be liable for his 
 
 ^ Rluht's Case, 19 L. J. Ch. 305. 
 
 ^ Be London, Bombay, and Mediterranean Banh, 18 Ch. D. 581. In this case 
 the company had accepted the wife as a shareholder without any concealment by the 
 husband. But where the company had no notice of the marriage of the female share- 
 holder until the winding up, both husband and wife were held liable. Murgatroyd's 
 Case, 28 L. T. (European Assurance Arbitration), 105 ; 17 Sol. Jour. 483. 
 
 3 12 Ch. D. 284. ^ Sect. 7. « Sect. 13. 
 
 ^ Robinson v. Lynes [1894], 2 Q. B. 577. 
 
 ' Dillon V. Cvnningham, L. B. 8 Ex. 23. ^ Sect. 15. 
 
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CHAP. XIII.] OBLIGATIONS OF COVERTURE. 2G7 
 
 wife's ante-nuptial engagements.' But he may have received 
 assets from or through her, and judgment may have been reco- 
 vered against him ; ^ now, as between husband and wife, the 
 former, if he has been made to satisfy the claims of any of his 
 wife's ante-nuptial creditors, will be entitled to be recouped the 
 amount from her separate estate (for she is now primd facie liable 
 for her ante-nuptial debts and contracts,^ except perhaps in such 
 cases as where the property was conveyed to him for the purpose 
 of withdrawing it from his wife's creditors. It has been settled 
 that if he has incurred any costs in defending an action in which 
 he is held not liable, he is entitled to be recouped them, and they 
 become a charge on his wife's separate property.* 
 
 Section 3. 
 
 a. Liahility of Husband for Wife's Ante-nuptial and 
 Post-nuptial Torts. 
 
 I. The liability of a husband for the ante-nuptial torts of his Liability of 
 wife is to be regarded with reference to three different periods wife's ante- 
 (and not four as in the case of his liability for her ante-nuptial po^t*nJip"iai 
 contracts), for, as will be seen, the Married Women's Property to^s. 
 Act, 1870, did not affect it. Spouses married before July 30, Anie-nuptiai 
 1874, are under the common law. Those married between 
 that date and January i, 1883, are under the Married Women's 
 Property Act, 1874.' Those married on and after the latter date 
 are under the Married Women's Property Act, 1882," and the 
 present law. 
 
 The theory of the unity of the spouses prevailed equally as 
 regards the torts of the wife as her contracts, and on marriage 
 the husband became liable for all wrongs committed by her 
 previously to, and for which she remained liable at the date of, 
 the marriage. His liability lasted only during the coverture, 
 and unless he was sued before it terminated (whether by death or 
 other causes), he was released from it. This liability was joint, 
 and rendered it necessary to sue the husband and wife jointly, 
 
 1 Sect. 1 1;. 
 
 2 lUd. The form of the judgment is as follows:— "If it appears that the 
 hnshand is liable for the debt or damages recovered, or any part thereof, the judgment 
 to the extent of the amount for which the husband is liable shall be a joint judgment 
 against the husband personally and against the wife as to her separate property ; and 
 as to the residue, if any, of such debt and damages, the judgment shall be a separate 
 judgment against the wife as to her separate property only." ^ _ 
 
 ^ By reason of the primd facie liability of the wife, the creditor in any joint or sole 
 action against the husband will be bound to prove that he has received assets from or 
 through his wife. See Matthews v. Whittle, 13 Ch. D. 811. 
 
 * London and Provincial Banh v. Bogle, 7 Ch. D. 773. 
 
 5 37 & 38 Vict. c. so. '' 45 & 46 Vict. 0. 75. 
 
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268 
 
 HUSBAND AND WIFE, 
 
 [part I. 
 
 Under M, W. 
 P. Act, 1874. 
 
 Under M. W. 
 v. Act, 1882. 
 
 and it was not enough to sue the husband alone.' The Married 
 Women's Property Act, 1870, left his liability untouched; for 
 the twelfth section, which freed the husband from any responsi- 
 bility for his wife's ante-nuptial contracts, omitted to include her 
 ante-nuptial torts. This full common law liability is now of anti- 
 quarian rather than practical interest, as any such claims against a 
 husband married to his wife before July 30, 1874, would either 
 have been satisfied or barred by the lapse of time. 
 
 By the Married Women's Property Act, 1874, a husband 
 marrying after that Act came into force, became liable to a 
 limited extent for his wife's ante-nuptial torts. Under section 2 
 of that Act, " the husband shall .... in any action brought 
 for damages sustained by reason of any tort committed by the 
 wife before marriage .... be liable .... for the damages 
 .... to the extent only of the assets hereinafter specified." 
 Those assets were specified in section 5 of the same Act.^ In 
 any action against him for his wife's ante-nuptial torts, the 
 husband had to plead his non-liability, otherwise he remained 
 liable.' The husband's limited liability under the Act of 1874 is 
 preserved to him.^ 
 
 By the Married Women's Property Act, 1882,* a husband 
 married after the Act comes into operation (January 1, 1883) is 
 rendered liable only for the wrongs committed by his wife before 
 marriage, to the extent of all property whatsoever belonging to 
 her which he shall have acquired, or become entitled to from or 
 through his wife, after deducting therefrom any payments made 
 by him, and any sums for which judgment may have been hond 
 fide recovered against him in any proceeding at law, in respect of 
 any such wrongs for or in respect of which his wife was liable 
 before her marriage, but he shall not be liable for the same any 
 further, or otherwise. The husband may be sued jointly with 
 his wife in respect of her ante-nuptial torts, which means that he 
 may now for the first time be sued alone, if the plaintiff elect to 
 proceed against him alone." This will enable a person wronged 
 by an ante-nuptial tort of the wife, to sue the husband to the 
 extent of his liability, even after the coverture has ended.' The 
 husband's liability for his wife's ante-nuptial devastavit is treated 
 of elsewhere,^ 
 
 ^ Blitchinson v. Hewson, 7 T. E. 348. 
 
 ^ For an enumeration of these assets, see ante, p. 260. 
 
 3 Matthews v. Wliittle, 13 Ch. D. 811. 
 
 ^ 4S & 46 Vict. c. 75, s. 14. ^ Sect. 14. 
 
 ^ Sect. 15, which deals with suits for ante-nuptial liabilities, makes it permissive 
 only, and not only compulsory, to bring the suit jointly against the husband and 
 wife. 
 
 ' The principle oi Bell v, Stocher, 10 Q. B. D. 129. ^ See^osi, p. 273. 
 
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CHAP. XIII.] OBLIGATIONS OF OOVERTTJEE. 269 
 
 2. At common law a married woman could not commit a Liability of 
 tort (whether libel, slander, conversion or trespass), whether ^fe^sp'^s" 
 as agent for her husband or not. He was responsible for it ; °"Pt'*i to^'s. 
 her torts were his torts, and he must have answered for them. law'wHe'could 
 Strictly speaking, she could not commit torts; they were the ^°r|.°°°""'* * 
 torts of her husband, and therefore she created as against him 
 a liability.^ Whatever her tort was, the suit must have been 
 against her husband and herself, and the suit must have been 
 brought during coverture, but not after, unless he had in any 
 way authorized or adopted it.^ The tort for which the husband The tort must 
 was to be rendered liable must be a tort pure and simple, and ^i^uerf^d 
 not one founded on or arising out of a contract made bv his '^P* *"s™s "i^t 
 
 of COU'tl'ElCtj 
 
 wife. Thus it was laid down in FairJiurst v. Liverpool AddpM 
 Loan Association^ that an action did not lie against a husband 
 and wife for a false and fraudulent representation by the wife to 
 the plaintifE that she was sole and unmarried at the time of her 
 signing a promissory-note as surety to him for a third person, 
 whereby the plaintiff was induced to advance a sum of money to 
 that person, because where " the fraud is directly connected with 
 the contract with the wife, and is the means of effecting it, and 
 parcel of the same transaction, the wife cannot be responsible, or 
 the husband be sued for it together with the wife.'' This case 
 cannot be any longer the law as regards the liability of the wife, 
 for a married woman can render herself responsible on her 
 contracts, and therefore liable on any torts arising out of her 
 contracts. If the principle of the case is to be strictly applied, 
 the husband must be held harmless for any torts committed by 
 the wife in respect of contracts into which she is now for the 
 first tinie permitted to enter. His former freedom from liability 
 for these torts was based on his wife's incapacity to contract, and 
 his liability ought not to be increased because of the widely 
 extended contractual powers conferred on the married woman. 
 Where the wife is acting as agent for her husband, he will be Wife as agent. 
 responsible for her fraud connected with a contract within the 
 scope of her authority j"* or for her neghgence,* and his responsi- 
 bility as principalis not affected by the recent Act. 
 
 An important question is raised under the Act of 1882, whether Husband's liar 
 
 •^ 1 bility under 
 
 1 Per Jessell, M. B., in Wainford v. Eeyl, L. E. 20 Eq. 321. , , , , for torts of 
 
 2 Capel V. PoweU, 34 L. J. C. P. 168. In the following cases the husband has ^ifg_ 
 been held liable for the torts of his wife :— Libel, Bead v. Briscoe, 5 C. & P. 484 ; 
 Slander, Ferguson v. Clayworth, 13 L. J. Q. B. 329 ; Assault and Battery, Watson 
 
 V. Thorpe, Cro. Jac. 239 ; Vine v. Saunders, 4 Bing. N. C. 96 ; Fraud, Charlton v. 
 Coombes. 5 Jur. N. S. 9P4 ; Trespass, Smallei/ v. Kerfoot, 2 Stra. 1094 ; Trover, 
 Kei/worth v. Bill, 3 B. & Aid. 605 ; Oatterall v. Kenyan, 3 Q. B. N^ S. 310. 
 
 3 23 L. J. Ex. 163. See also Wright y. Leonard, 30 L. J. C. P. 365. 
 * Taylor v. Green, 8 C. & P. 316. 
 
 ' MieU V. English, 15 L. T. 249- 
 
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270 HUSBAND AND WIFE. [part i. 
 
 the liability of the husband for his wife's torts committed during 
 coverture is in any way altered, in the sense of being diminished ? 
 It is no doubt altered at the option of the injured person ; for by 
 section i, sub-section 2, a married woman shall be capable of 
 being sued in tort in all respects as if she were a /erne sole, and 
 her husband need not he joined with her as defendant} If the 
 word shall had been used instead of need, then his liability would 
 have been altogether removed ; but as the words now stand, he 
 may be joined in an action with his wife. Thus, his full 
 common law liability remains apparently unaffected ; and if the 
 injured person elect to sue the husband, there is nothing in this 
 section or in the rest of the Act to deprive the former of pro- 
 ceeding jointly against the husband and wife, and satisfying his 
 claim out of the property of the husband, who in his turn would 
 not have the same right to be indemnified out of his wife's 
 property as he has in the case where he is made liable for her 
 ante-nuptial torts. ^ Such an action, it is submitted, must equally, 
 on the ground of analogy and of the spirit of the Act, be brought 
 during the existence of the coverture ; and here again there is 
 nothing but the common law rules to supply a guide for future 
 practice. It is also suggested that if the injured party elect 
 to go against the wife alone, and her separate property is found 
 insufficient to meet the damages recovered against her, it will 
 not be open to the plaintiff to proceed against the husband, as 
 it were de novo, or for the residue of the sum recovered against 
 his wife. 
 Liability of h. {i .) Liability of Wife foi' lier ante-nuptial torts. — At common 
 
 nuptial torts, law a woman who had committed a tort, and then married,' shifted 
 Joint. tjie sole burden of responsibility from off her own shoulders, and 
 
 laid it upon those of her husband to share it with her for the 
 period of the coverture. On the termination of the coverture, 
 whether by death, divorce, or judicial separation, she became 
 once more solely liable in respect of the tort, unless it had been 
 satisfied by a judgment against her husband and herself.' The 
 responsibility of the husband for his wife's ante-nuptial torts 
 was due to the same cause that rendered him liable for her 
 ante-nuptial debts and contracts, viz., that as he took her pro- 
 perty on marriage he took over her responsibilities. The action 
 founded on her tort was necessarily a joint one against herself 
 and her husband.^ 
 
 1 For the effect of such permissive words see Julius v. The Bishop of Oxford, 
 5 App. Cas. 214. 
 
 ^ Seroka v. Kalteiiberg, 17 Q. B. D. 117. 
 
 2 Vine V. Saunders, 4 Bing. N. C. 96. 
 " See Capel v. PoweU, 34 L. J. C, P. 168. 
 
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 Sole. 
 
CHAP. XIII.] OBLIGATIONS OF COVERTURE. 271 
 
 In eqidty her separate estate was not rendered liable for her No liability in 
 ante-nuptial torts ; but the marital responsibility was equally ^i™'?- 
 recognized as in law.' The liability of a woman for her ante- 
 nuptial devastavits will be treated of lower down.^ 
 
 The non-liability of a married woman during coverture for her 
 ante-nuptial tort was in no way affected by the Married Women's 
 Property Act, 1 870, and her husband remained liable for it. But 
 under the Married Women's Property Act, 1874,^ the liability Under M. w. 
 of each was modified. The action founded on her ante-nuptial ^" ^'^^' ^^^^^ 
 tort was primarily joint against her husband and herself, yet if 
 he could successfully prove his non-liability under the Act on the 
 ground of not having received through the marriage any assets 
 in right of his wife, or of having exhausted any such assets in 
 satisfjdng other ante-nuptial claims against his wife, the latter 
 became solely liable. If the husband possessed certain assets of 
 his wife acquired by him jure Tnariti, he was liable in damages 
 up to their amount, and she was liable for the residue of such 
 damages.' Under the Married Women's Property Act, 1882,' a Under M. w. 
 married woman is now rendered for the first time liable, in the ' ' 
 place of her husband, for her ante-nuptial torts, A woman Wife primarily 
 married after that Act came into operation is now primarily ante-nuptial 
 liable to render compensation out of her separate property for her *°'''^' 
 ante-nuptial torts. ' It is true that the party injured by the 
 tort of the wife may jointly sue both the husband and the wife, 
 but if he elect to proceed against the wife alone he can do so.' 
 As has been already shown in the case of his wife's ante-nuptial 
 contracts,^ the husband's liability is limited ; ^ and if in any joint 
 action it is found that he is not liable at all, he will be entitled 
 to judgment in his favour, whatever the result of the action 
 against the wife may be.'° The primary liability of the wife 
 for her ante-nuptial torts is rather as regards her husband 
 than as regards the party injured by her tort ; " but if the 
 latter elect to insist on his right of suing the wife alone, as he 
 may do, her full liability is clearly established.'^ The effect of a 
 judgment against a married woman will be discussed in the next 
 chapter. 
 
 (2^ Lidbilitv of Wife for her post-nuptial torts. — The sole LiabiKty of 
 
 ,. , .,. „ .1 I. i_L •o.a.jT.T. J- wife for post- 
 
 liabdity of a married woman for torts committed by her during nuptial torts 
 coverture was a thing unknown to the common law, and is the ^"f®!^;^'^" 
 direct outcome of the legislation of 1882. Before the Married 
 
 1 See Wainford v. Seyl, L. E. 20 Eq. 321. " See poet, p. 274. 
 
 i* 37 & 38 Vict. vi. 50, s. 2. * Sect. 4. 
 s 45 & 46 Vict. c. 75, =. 15. " Sect. 13. I Sect. 15. 
 
 8 Ante p. 258 et seq. ' Sect. 14. Ibid. 
 
 " Sect. 13. '' Sect. 15. 
 
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272 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Liability of 
 separate estate -. • -■ -■ 
 in equity, liaDle 
 
 Women's Property Act of tliat year, a married woman sti'ictly 
 speaking coald not commit a tort; her wrong-doing was the wrong- 
 doing of her husband, and he had to answer for it ; ' the action 
 in respect of the tort was joint against the husband and wife, 
 because the action could not be brought against the wife without 
 joining the husband, and unless the husband could be joined, the 
 party injured would be without remedy.^ 
 
 In equity the separate estate of a married woman was rendered 
 for her post-nuptial torts committed in respect of her 
 
 Effect of 
 restraint. 
 
 Liability of 
 married 
 woman on dis- 
 solution of 
 marriage. 
 
 separate property, such as fraudulent misrepresentations,' or 
 breaches of trust ' connected with it, but not for the breach of 
 an implied duty or trust. ^ Though her separate property was 
 not liable for her general torts, yet its liability for specific torts 
 committed during marriage marks a difference between a married 
 woman's ante-nuptial and post-nuptial torts, for the former did 
 not render her separate property liable to make compensation, 
 while the latter did,^ When she is guilty of a tort, such as fraud 
 or the like, she will not be allowed in equity to derive any benefit 
 from it ; ' thus, she will not be allowed to disappoint a mortgagee 
 who has advanced money on the faith of misrepresentations in 
 which she has concurred : ^ and she has been held bound to make 
 good a representation made on her behalf to the court while she 
 was an infant, on the faith of which a marriage settlement had 
 been* sanctioned." But where her separate property is subject to 
 the restraint upon anticipation, it cannot be taken to make good 
 her torts, for by no device can the restraint be evaded.'" In 
 Cahill V. Caliill^^ however. Lord Blackburn thought that where 
 she was guilty of a fraud, her tortious act, though as a contract 
 was not binding upon her property so restrained, yet in equity 
 she might be bound in conscience, and therefore compelled to 
 fulfil her contract. 
 
 For her liability to make good losses incurred through her 
 instigation of a breach of trust under the Trustee Act, 1893,'^ see 
 chapter xv. 
 
 The married woman was and remains liable for her post-nuptial 
 torts on the dissolution of the marriage, whether by death or 
 
 2 Head v. Briscoe, 5 C, & P, 484. 
 ' Davies v. Stanford, 61 L. T. 234, 
 
 1 Wainford v. Heyl, L, R. 20 Eq, 321. 
 
 ^ Savage v, Foster, 9 Mod, 35, 
 
 <• Wainford v. Heyl (uhi supX 
 
 ^ Vaughan v, Vandersteqen, 2 Dr, 363, 
 
 ' Be Lush's Trusts, L, B. 4 Ch. App. 591. 
 
 8 Sharpe v, Foy, L. E, 4 Ch, App. 35. 
 
 9 Mills T. Fox, 37 Ch. D. 153, 
 
 " Stanley v, Stanley, 7 Ch. D. 589, " 8 App. Cas, 437. 
 
 12 56 & 57 Vict. c. 53, s, 45 ; hut see Bichetts v, Bicketts, 64 L. T. 263 ; Bolton v. 
 CMrre[F895], i Ch. 544. 
 
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CHAP. xiii.J OBLIGATIONS OP COVERTURE. 273 
 
 divorce,' unless satisfaction has been made in respect of them, or 
 the right of action barred by lapse of time. 
 
 A married woman is, under the Married Women's Property Married 
 Act, 1882, now liable to be sued alone at the option of the toZ^Ved^'^ 
 injured party for any tort committed by her, and her husband *'™^' ^' 'V" 
 
 -, ■■••T.ii • . . option of the 
 
 need not be joined with her in the action.^ Satisfaction for her injured party. 
 wrong-doing is to be made out of the separate property possessed 
 by her at the time of the wrong done, and not, it would seem, as 
 in the case of her contracts, out of property subsequently acquired 
 by her. This fact must have considerable importance in suggest- 
 ing to intending plaintiffs the expediency of joining or not joining 
 the husband as defendant. It may be taken for granted that 
 if the married woman has little or no property, the husband will, 
 as of old, be joined in the action founded on tort brought against 
 his wife.' 
 
 c. Liability of Husband and Wife for Wife's Ante-nuptial and Liability of 
 Post-nuptial Breaches of Trust and Devastavits. — It has been wife for wife's 
 deemed advisable to treat this subject under a separate heading, and'po"t-ntip- 
 because it involves considerations differing somewhat from those tJ^i breaches of 
 
 tni fit f^ n f) 
 
 raised by ordinary torts committed by the wife, and the arrange- devastavits. 
 ment admits of a comprehensive treatment of the whole subject. 
 
 (i) Ante-nuptial Breaches of Trust and Devastavits of JFi/e. Liability of 
 a. Liability of Husband. — In this, as in other cases, there are wife's ante- 
 distinct periods during each of which the liability of the husband b°^*g^gg ^f 
 varies. Before 1874, where a feme sole, as a trustee, or executrix trust and 
 
 devastavits 
 
 or administratrix, committed a breach of trust, or wasted the Before 1874. 
 goods of her testator or intestate, and married, her husband was 
 liable for the breach of trust ' or devastavit as long as the cover- 
 ture lasted f and his liability for her breaches of trust extended 
 to breaches of trust arising from her negligence, and not merely 
 her active misconduct." On her death his liability ceased, except 
 in cases where he became her administrator in order to reduce her 
 choses in action into possession, when he was made liable as such 
 administrator for her breach of trust or devastavit to the extent of 
 the assets derived from the reduction of the chose in action into 
 possession.' Under the Married Women's Property Act, 1874,* Under M. w. 
 the husband's liability for his wife's ante-nuptial breaches of trust ' ' ^ ''*• 
 or devastavits was limited to the amount of the assets which he 
 had received or might have received in right of his wife. Under Undpr M. w. 
 the Married Women's Property Act, 1882, he will be liable for ' ' 
 
 1 Capel r. Powell, 34 L. J. C. P. 168. ^ gegt. i, sub-s. 2. 
 
 2 See Seroha v. Kaitenherg, 17 Q. B. D. 117. 
 * Palmer v. Wakefield, 3 Beav. 227. 
 
 ' Doyle V. Blake, 2 Sob. & Lef. 239. 
 8 Bahin v. Hughes, 31 Ch. D. 390. 
 
 7 30 Car. II. c. 7. ' 37 & 38 Vict, m. 50, ss. 2, 5. 
 
 S 
 
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274 
 
 HUSBAND AND WIPE. 
 
 [part I. 
 
 Liability of 
 wife. 
 
 Liability of 
 husband for 
 wife's post- 
 nuptial 
 breaches of 
 trust aud 
 rtevastavits. 
 
 Liability in 
 equity. 
 
 her ante-nuptial breaches of trust or devastavits to the extent of 
 all property belonging to her which he shall have acquired or 
 become entitled to from or through her.' 
 
 6. Liability of Wife. — The wife was not liable so long as the 
 coverture lasted ; but if she survived her husband, she became 
 liable for her ante-nuptial breaches of trust or devastavits which 
 had not been satisfied during coverture.^ Under the Act of 
 1882, she is solely liable for her ante-nuptial breaches of trust 
 and devastavits, unless the husband has acted or intermeddled in 
 the trust or administration,^ which words would seem to include 
 an adoption or ratification of her acts after marriage. 
 
 c. Liability of Husband and Wife for Wife's Post-nuptial 
 Breaches of Trust and Devastavits of Wife. (i) Liability of 
 Husband. — A breach of trust or devastavit committed by the wife 
 during coverture rendered the husband liable for it ; and it was 
 immaterial whether the wife had assumed her representative 
 capacity before or after marriage.'' The marital liability varied 
 according as the principles of the common law or of equity 
 were applied. At common law he was liable during coverture 
 only ; and his liability was based on the assumption that as his 
 wife had no power to act alone, his consent to her tort must be 
 presumed.^ A constructive assent was sufficient, for a husband 
 living apart (not judicially separated) from his wife was held 
 liable for her devastavits.^ On the death of the wife, or the 
 termination of the coverture, the husband's liability generally 
 ceased, except where he was proceeded against in the capacity of 
 administrator of his wife.' In equity, however, the surviving 
 husband (or his estate) was rendered liable for whatever sums 
 came into his own or his wife's hands and were wasted, on the 
 principle that as such assets were trust property, their mis- 
 application would render the trustees chargeable in equity.' 
 
 If a husband personally commits waste in respect of property 
 of a person whose executrix or administratrix his wife was, and 
 dies leaving his wife executrix, or she becomes his adminis- 
 tratrix, and property of her testator or intestate comes into her 
 hands, the estate of her deceased husband is pro tanto discharged 
 of its liability.' 
 
 1 45 & 46 Vict. c. 75, s. 14. 
 
 ^ See Vauqhan v. Yanderstegen, 2 W. R. 293. 
 
 ^ 45 & 46 Vict. c. 75, s. 24. 
 
 '' Palmer v. Wakefield, 3 Beav. 227 ; Kingkam v. Lee, 16 L. J. Ch. 491. The 
 husbaud was of course responsible for his own breaches of trust and devastavits com- 
 mitted during the marriage. 
 
 ^ Adair v. Shaw, I Sch. & Lef. 263. 
 
 ^ Paget v Bead, i Vern. 143. '' Adair v, Shaw {uli sup.). 
 
 8 Ibid. ; Smith 7. Smith, 4 W. R. 316. 
 
 ^ Adair v. Shaw (uhi sujj. ) ; Tyler v. Bell, 2 Myl. & Cr. 89. 
 
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CHAP. XIII.] OBLIGATIONS OF COVERTURE. 275 
 
 The liability of husbands married before January i, 1883, 
 remains as it was before the coming into operation of the Married 
 Women's Property Act. 1882.^ 
 
 (2) Liability of Wife. — A married woman was not liable Liability of 
 during coverture for her devastavits or breaches of trust, for ^' *' 
 
 in the eye of the law such torts were those of her husband.^ 
 After the termination of the coverture, the wife became liable 
 in equity (and it seems in law also) for devastavits committed by 
 her, and by her husband with her consent during the marriage, 
 not only at the suit of creditors, but also of legatees, or next of 
 kin.^ 
 
 (3) Liability of Husband and Wife under the Married JFomew's Liability of 
 Property Act, 1882. a. Liability of Husband. — Under this Act ,vife under 
 the husband will be liable for his wife's ante-nuptial breaches of ^'^^ °* '^^^' 
 trust and devastavits only to the extent of any assets which on 
 marriage he has acquired or become entitled to from or through 
 
 her, unless he has subsequently acted on or intermeddled in the 
 administration of the trust or of the estate of the testator or 
 intestate, that is, has adopted his wife's wrong-doings." He will 
 not be liable for her post-nuptial breaches of trust or devastavits 
 unless he has acted or intermeddled in the administration. Mere No presump- 
 cohabitation will not now, it is submitted, raise a presumption of meddling 
 intermeddling ; there must be some active participation in the tort mere'^cohabita- 
 of the wife, by which the interests of the cestuis que trustent, or tion. 
 the interests of the creditors, or legatees, or next of kin of the 
 deceased, are injuriously affected. 
 
 b. Liability of the Wife. — A married woman is now liable to Liability of 
 
 wife. 
 
 ^ 45 & 46 Vict. c. 75, s. 14. 
 
 2 Wainford v. Seyl, L. K. 20 Eq. 321. 
 
 3 Adair v. Shaw {ubi swp.) ; Soady v. Turnhvll, L. R. i Ch. App. 494. " A dis- 
 tinction was taken between cases where the wife is executrix or administratrix lefore 
 the marriage, and those where she became so afterwards. In the first case, if she 
 survive her husband, she will be liable to answer, not only for her own wrongful acts in 
 the administration previously to the coverture, but even for those of her husband during 
 the continuance of the marriage, because her title as executrix or administratrix having 
 commenced and become complete before the marriage, it was her own folly to take a 
 husband who would so misconduct himself as to waste her testator's or intestate's 
 assets ; but in the second case, it is said, the act of the husband in obtaining probate 
 or letters of administration in bis wife's name, if against or without her consent, and 
 she does not afterwards intermeddle in the administration, is an act from which she 
 may dissent, after his death, by renunciation, and avoid the consequences of his mis- 
 conduct. If, however, the husband procure probate, or letters of administration in bis 
 wife's name, and with her consent, then it seems she, surviving him, will be personally 
 answerable, upon the insolvency of his estate, for the waste committed by him of the 
 testator's or intestate's assets, because she by her own act and assent having assumed 
 the office of executrix or administratrix, and being the only legal personal representa- 
 tive of the testator or intestate (which distinguishes this case from that before-mentioned 
 of the husband's discharge by her deiith from her devastavit, he being neither executor 
 nor administrator), became liable with her husband for every act relating to it ; and an 
 action or suit lay against both of them, and upon his death the right of action survived 
 against her." 2 Wms. Exors. 1896 n.; I Eop. H. & W. 196 et seq. 
 
 * Sect. 24. 
 
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276 HUSBAND AND WIFE. [paet i. 
 
 the extent of her separate property for her ante-nuptial breaches 
 of trust and devastavits.' She is also solely liable for these torts 
 Post-nuptial, committed by her during coverture, whether she has accepted 
 the office of tfustee, or executrix, or administratrix before or after 
 marriage, unless her husband has intermeddled with the trust or 
 administration, in which case he becomes jointly liable with her. 
 A difference in the husband's favour is to be noticed between his 
 liability for his wife's torts in her representative capacity, for 
 which he -seems to be liable only when he has himself inter- 
 meddled and participated in them, and his liability for her torts 
 in her non-representative capacity, for which his full common 
 law liability seems untouched by this Act. On the death of the 
 married woman her separate estate will continue to be responsible 
 for her wrongs. The Married Women's Property Act, 1882,^ is 
 not retrospective to make a married woman liable for a post- 
 nuptial breach of trust committed by her before the Act came 
 into force. ^ 
 Obligation on The husband is bound at law to bury his wife in a suitable 
 spouse to bury manner, that is, the reasonable funeral expenses can be recovered 
 the ecease . against him.* If he fails in his duty, any person who voluntarily 
 employs an undertaker and pays him for performing the funeral, 
 may recover the reasonable expenses.'* This liability continues 
 where the husband and wife are apart, whether because of his 
 absence," or her living separate from him.' An infant husband is 
 as much bound as an adult.^ But where he is executor of his 
 wife's will made under a testamentary power of appointment, he 
 may retain out of her estate the amount of her funeral expenses, 
 though her will does not contain a charge for such expenses, and 
 her estate is insolvent.^ There is a corresponding duty on the 
 widow to bury her husband ; and her infancy does not free her 
 from her liability.^" 
 
 ^ Sect. 24. Her liability for her devastavits or other breaches of trust is greater 
 than for her other torts. By section 24 her increased liabilities under this statute are 
 extended to these particular torts ; accordingly, the separate property acquired by her 
 subsequently to the commission of the wrong would become liable to make them good 
 (s. I, Bub-s. 4), whereas for her other torts such after- acquired property would not be 
 rendered liable. 
 
 " Sect. I, sub-8. 2. _ ^ Davies v. Stanford, 61 L. T. 234. 
 
 * Ambrose v. Kerrison, 20 L. J. C. P. 135. 
 
 '' Ihid. ^ JenJcins v. Tucker, i H. Bl. go. 
 
 '■ BradsMw v. Beard, 31 L. J. C. P. 273. 
 
 • Oliapple T. Cooper, 13 L. J. Ex. 286. 
 
 » Be McMyn, Lighthown t. M'Myn, 33 Ch. D. 575. 
 1" Chappie Y, Cooper {uhi sup.) 
 
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CHAPTEE XIV. 
 
 CONTRACTS BY MARRIED WOMEN. 
 
 CONTHACTS WITH THIED PBESONS : ^^™ 
 
 Common Law Incapacity to Conteact . . . 278 
 
 Capacity as Agent 279 
 
 Capacity in Equity in Bbspbct of Sbpaeatb Estate 280 
 In Kbspect op Phopbety Subject to Powbe of 
 
 Appointment 281 
 
 Statutoey Capacity as a Feme Sole : 
 
 Maeeied Woman Judicially Separated . . 281 
 
 Maeeied Woman undee Peotbction Okdee . . 282 
 
 Maeeied Women's Peopbety Act, 1870 . . . 282 
 
 Maeeied Women's Peopbety Act, 1882 . . . 282 
 New Pbescmption in Respect op her Con- 
 
 TEAOTS 283 
 
 Subsequently Acquiebd Peopbety Bound by 
 
 HEE CONTEACTS 285 
 
 Febb Sbpaeate Peopbety Necbssaet foe Valid 
 
 conteact 286 
 
 Sbpaeatb Peopbety Subject to Resteaint 
 
 NOT Free 287 
 
 Presumption against hbe to be Reasonable 287 
 
 Maeeied Women's Peopbety Act, 1893 . . . 289 
 
 Effect op Resteaint Peesbeved . . . 290 
 
 Conteacts with Husband 291 
 
 Gifts and Loans between Husband and Wipe . . 292 
 
 Gifts by Husband to Wife 293 
 
 Impbepbct Gifts 293 
 
 Valid Gifts 294 
 
 What aeb not Gifts . 294 
 
 Gifts by Wipe to Husband 295 
 
 Loan by Husband to Wipe 297 
 
 Loan by Wife to Husband : M. W. P. Act, 1882, and 
 
 Pabtneeship Acts, 1865 and 1890. ... 297 
 
 Conteacts as Agents : 
 
 Maeeied Women's Peopbety Acts, 1882 and 1893 . 301 
 
 Wife as Agent foe hbe Husband : Expebss Authority 301 
 
 Implied Authoeity . . . . . . . 3°^ 
 
 Liability op Husband foe Wipe's Necbssaeies . . 303 
 
 Wife Living with Husband 303 
 
 Pebsumption op Authoeity abisbs peom Co- 
 habitation 304 
 
 Peesumption Rebuttable 3oS 
 
 Liability of Husband by Estoppel . . . 309 
 
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278 HUSBAND AND WIFE. [paet i. 
 
 PAGE 
 
 Wife Living apaet fkom Husband .... 310 
 
 WiiEBB Husband not Liable 311 
 
 Where Husband Liable 312 
 
 What aee Necessaeies 314 
 
 What abb not Necessabies 316 
 
 Incidents op Conteactual Power : 
 
 Sbpaeate Trading 317 
 
 Liability to be made Bankrupt 318 
 
 Capacity to Effect Insurance on own Life and 
 
 Husband's ... 321 
 
 To BE A Partner 323 
 
 To be a Trustee 325 
 
 To BE Executeix oe Administratrix .... 327 
 
 To Sue and be Sued alone : In Contract . . . 330 
 
 In Toet 333 
 
 Liability in Respect of Contracts : 
 
 Proprietary not Personal 334 
 
 Married Women's Peopbhty Act, 1882 .... 335 
 
 Maeeied Women's Peopbety Act, 1893 • • • 33^ 
 
 Distinction between Liability foe Ante-nuptial and 
 
 Post-nuptial Debts 336 
 
 Contracts by Married Women. 
 OwiNa to recent legislation contracts by married women as 
 forming a peculiar and separate branch of the law occupy a 
 much less conspicuous position than in former times, for the 
 modern tendency is to assimilate them to those of men and 
 unmarried women. But there is much that is still peculiar to 
 them, which can only be explained and illustrated by a reference 
 to the earlier state of the law and the social views on which such 
 law was based. 
 
 This Chapter will be divided into five sections, as follows : 
 
 Section i. Contracts by Married Women with Third Persons. 
 
 Section 2. Contracts by Married Women with their Hus- 
 
 Section 3 . Contracts by Married Women as Agents whether 
 for Third Persons or their Husbands. 
 
 Section 4. Incidents of Contractual Power. 
 
 Section 5 . Liability of Married Women in respect of their 
 Contracts. 
 
 Section i. 
 
 Contracts with Third Persoris. 
 
 Common law At common law one eifect of coverture was the incapacity of a 
 
 incapacity to j^a^ried wofaan to enter into contracts with third persons binding 
 
 upon her.^ This disability or incapacity was due not only to the 
 
 theory of her suspended separate existence during marriage, but 
 
 to the fact that she had no property of her own in respect of 
 
 ^ Marshall v. Button, 8 T. E. p. 547. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 279 
 
 which she could contract, for of personalty she had none ; and 
 she could not defeat her husband's interest in her realty. A 
 contract, then, of a married woman was " altogether void, and no 
 action would lie against her husband or herself for the breach of 
 it." ' If a married woman executed a promissory note, and after 
 the death of her husband made a fresh promise to pay it without 
 any new consideration, she was not bound by either promise, for 
 the first was null and void for want of capacity to make, and the 
 second because of the want of consideration ; and a promise by a 
 married woman to pay a debt barred by the Statute of Limita- 
 tions was inefiectual." But in order to carry out the requirements 
 of social life, this strict common law doctrine was modified by 
 exceptions ; thus, a married woman was enabled to enter into a Capacity to 
 contract as the agent of her husband, and as such agent she agent. 
 could bind him. If her husband had given her a power of 
 attorney under seal she could have executed a contract under seal 
 on his behalf, so as to bind him or entitle him to sue upon it ; or 
 in cases of simple contract, if he had expressly or impliedly held 
 her out as his agent, or expressly or impliedly ratified what she 
 had done.' This agency on her part was, as it is now, a question Her agency a 
 of fact, which must be proved or rebutted by evidence produced ; ■* i^^ 
 but under the present state of the law the presumption is that 
 she is not acting as her husband's agent.^ A married woman 
 was also allowed to make binding contracts in cases where her 
 husband was civiliter mortuus, as, for instance, when under a 
 sentence of outlawry or banishment,^ or of transportation, or of 
 penal servitude for a term of years or for life ; ^ also where her 
 marriage was dissolved by Act of Parliament ; ' or where her 
 husband was an alien enemy,' or was an alien who had never 
 been in the kingdom.'" These exceptions were " founded on the 
 principle of the husband being under the necessity of absenting 
 himself from this kingdom, and that his return to it was 
 forbidden, and did not depend upon his own will and pleasure."" 
 So, too, if she carried on in the City of London a trade apart 
 from her husband who was a freeman of the City, she might enter 
 into a binding contract.'^ 
 
 ^ Per Curiam, Fairhurst v. Tlie Liverpool Loan Association, 23 L. J. Ex. 163. 
 
 2 Fittam V. Foster, i B. & 0. 248. 
 
 ^ M'George v. Egan, 7 So. Rep. 112 ; see Addifion on Contracts. 
 
 ^ See JoUy v. Bees, 33 L. J. C. P. 177 ;j}ost, p. 305. 
 
 ^ 45 & 46 Vict. c. 75, 8. T, Bub-8. 3. 
 
 ^ Lady Belknap's Case, Co. Litt. 132 b ; Newsome r. Bowyer, 3 P. Wms. 37. 
 
 ' Carroll v. Bleneow, 4 Esp. 27 ; Sparrow v. Carruthers, cited i T. E. 6 ; and 
 2 Wm. Bl. Rep. 1197. s 2 Br. H. & W. 70. 
 
 ' Derry V. Duchess of Mazarine, i Lord Eaym. 147. 
 
 ^^ Kay V. Duchess of Pienne, 3 Camp. 123 ; but see Barden v. Keverherg, 
 2 M. &.W. 6i. 
 
 " 2 Rop. H. & W. 121. 12 Can^ell v. Shaw, 4 T. R. 361. 
 
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separate estate. 
 
 280 HUSBAND AND WIFE. [paet i. 
 
 Capacity to In equity the contracting power of a married woman was 
 
 eqnity'^in"^ recognizsd. The Court of Chancery administering equity allowed 
 respect of }^qj. jq possess property apart from her husband, over which she 
 exercised sole control, and of which she was capable of disposing.' 
 Equity founded her capacity to contract on a fiction, that it was 
 not the married woman, but her separate property, that was put 
 forward as the contracting party, which would take upon itself 
 all the liabilities arising out of the contract. When a married 
 woman contracted debts or entered into engagements, equity 
 deemed she was honest, and desired to satisfy the first claims of 
 her creditors ; it consequently held her separate property liable to 
 make good these engagements. As a result, it was held neces- 
 sary that, to make a binding contract, a married woman must be 
 possessed of free separate property at the time of entering into 
 such contract or engagement.^ The existence of separate pro- 
 perty at the time of entering into a contract is still necessary 
 where the obligation arises before the date of the passing of the 
 Married Women's Property Act, 1893.^ 
 
 Her present full responsibility has been a matter of gradual 
 growth. In an earlier stage of the law it was necessary to show 
 that she had acted with respect to her separate property, that is, 
 that she had evinced an intention to deal with it. This was 
 carried a step further, and her separate property was held bound 
 by her general engagements in writing which did not refer to or 
 make mention of it.'' The writing was deemed to be an execu- 
 tion of a power ; but this theory was rightly denied by Lord 
 Cottenham, in Owens v. DicJcensonJ' The liability of her separate 
 estate was put upon its true ground by Turner, L.J., in Johnson v. 
 Gallagher ; " the equitable principle of a married woman's liability 
 being, that where she contracts a debt which she can only 
 satisfy out of her separate estate, the latter will be made liable,' 
 though her husband^ or a stranger ^ join in the contract giving 
 rise to the liability. 
 
 A married woman who had property settled to her separate use 
 without any restraint or alienation was deemed a feme sole, and 
 could dispose of it accordingly.'" Thus, in equity she could 
 
 ^ For the growth of the Separate Estate, see next chaptei-. 
 
 2 See Film v. Fitzgihbon, 17 Ch. D. 454. 
 
 3 56 & 57 Vict. c. 63 ; Palliser v. Qwney, 19 Q. B. D. 519. 
 ■1 Hulme V. Tenant, 1 Bro. C. C, 16 ; i W. & T. L. C. 521. 
 5 4 Jur. 1151. 6 30 L J. Ch. 298. 
 '■ Picard v. Sine, L. R. 5 Ch. App. 274. 
 
 * Hulme V. Tenant, {ubi sup.) ; Latouclie v. Latou^lie, 34 L. J. Ex. 85. 
 " Meailey v. Thomas, 15 Ves. 596. 
 
 ^' Sugd. Pow. 173. For the further effect of Restraint against Anticipation, see 
 posi^ chap. XV. Separate Estate. 
 
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CHAP. XIV.] CONTKAOTS BY MARRIED WOMEN. 281 
 
 contract, rendering her free separate estate liable, where she con- 
 tracted by bond,^ bill of exchange accepted ^ or endorsed by her," 
 promissory note,'' or covenant to pay a sum of money ; '' where 
 she so contracted that she must clearly have intended to bind 
 her separate property, as being the only means of satisfying the 
 obligation into which she had entered ; ^ or where she entered 
 into any general engagement on her part, if it appeared that it 
 was made with reference to and upon the faith or credit of the 
 estate, and whether it was so or not was a question to be judged 
 of by the Court on all the circumstances of the case ; ' and the 
 onus of such proof was on the creditor. 
 
 A married woman could contract where she had a power of Contract iu 
 appointment over property which she contracted to sell ; but she property over 
 could not contract so as to bind property which was not her ^oman'haT'"* 
 separate property, or over which she had no power of appoint- power of 
 
 T ' • 1 1 1 ,1 ..appointment, 
 
 ment. in exercising the power she must have observed all 
 necessary formalities which went to the substance of the power, 
 or her contract was void,' though mere formalities were supplied 
 against her.^ 
 
 She might have contracted to bind her real estate by deed Contract to 
 
 ° . , / bind her real 
 
 acknowledged under the Fines and Eecoveries Act," with the estate. 
 concurrence of her husband ; " or without his concurrence where 
 she had obtained an order dispensing with it.'^ 
 
 Within recent years a married woman has acquired the position statutory 
 of & feme sole, which has been altogether a creature of statutory 
 enactments ; and when in this position she has been enabled to 
 contract as well as to dispose of her property. 
 
 The Divorce and Matrimonial Causes Acb, 1 8 5 7,'^ by its twenty- 2° & 21 vict. 
 fifth section, enacted that " in every case of a judicial separation incaseof judi- 
 the wife shall, from the date of the sentence, and whilst the "i*^^®.P*''f"°°' 
 
 ' ^ ' ^ the wife to be 
 
 separation shall continue, be considered as a feme sole with considered a 
 
 ,p j-i.- T_-iT_ • feme sole -with 
 
 respect to property of every description which she may acquire, respect to her 
 or which may come to or devolve upon her." By section 26, ^^c^g'^'and""" 
 it enacts that " in every case of a judicial separation the wife torts, 
 shall, whilst so separated, be considered as a feme sole for the 
 purposes of contract, and wrongs and injuries, and suing and 
 being sued in any civil proceeding." 
 
 1 Peacock v. Monk, 2 Ves. 193. ^ Stuart v. Lord Kirkwall, 3 Madd. 387. 
 
 3 MacHenry v. Davies, L. E. 10 Bq. 88. 
 
 < Meld V. Sowle, 4 Euss. 1 12. ^ Mayd v. Field, 3 Ch. D. 587. 
 
 ^ London Chartered Bank of Australia v. Lemprilsre, L. E. 4 P. C. 572 ; Wain- 
 ford 1. Heyl, L. R. 20 Bq. 321. 
 
 7 Johnson v. Gallagher (uhi sup.). ^ Martin v. Mitchell, 2 .J. & W. 413. 
 
 3 Stead V. Nelson, 2 Beav. 245. " 3 & 4 Wm. IV. c. 74. 
 
 " Besant v. Wood, 12 Ch. D. 605, 621. 
 '2 Goodchild v. Dougal, 3 Ch. 1). 650. is 20 & 21 Vict. u. 85. 
 
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282 HUSBAND AND WIFE. [part i. 
 
 Married A married woman, deserted by her husband, who had obtained 
 
 ^•oTection "^^ a protection order from a police magistrate within the metro- 
 order in like politan district. Or from I'ustices in petty sessions under section 21 
 
 poBition asif'^ ' i-i-tt / i • -i 
 
 judicially of the Same Act, or from the judge-ordinary (now the judge of 
 
 separate. ^-^^ Probate, Divorce, and Admiralty Division), under 21 & 22 
 
 Vict. c. 108, s. 6, was deemed a, feme sole, as though she has been 
 
 judicially separated, and while the order lasted she obtained all 
 
 the rights and privileges of a single woman.' 
 
 Judicial sepa- Under the Summary Jurisdiction (Married Women) Act, 
 
 s^umma™/'"^ 1895,^ ^ court of Summary jurisdiction can now make an order 
 
 J""8diction which will have the force of a decree of judicial separation in 
 
 Women) Act, cases where the husband has been convicted of an aggravated 
 
 ^ ^^' assault upon his wife or of persistent cruelty to her, or of wilful 
 
 neglect to provide reasonable maintenance for her or her infant 
 
 children, whom he is legally liable to maintain, and has by such 
 
 cruelty or neglect caused her to leave and live separately and 
 
 apart from him. The wife on the pronouncement of the sentence 
 
 acquires the position of a feme sole. 
 
 M. w. p. Act, In 1870, the important Married Women's Property Act' of 
 
 that year was passed. " This Act created fresh categories of 
 
 Extent of mar- separate estate, and in respect of such separate estate conferred 
 
 ned woman's -^ / • ^ \ p • i-i 
 
 separate estate upon her (a married woman) powers of contractmg, &c., which 
 not^her con"' ^^ equity she possessed before, and also gave her certain remedies 
 tractuai which she might employ in a court oi law in respect of such 
 
 powers. a r J r ^ 
 
 property. But the Act did not in other respects alter her posi- 
 tion, or confer upon her any further contractual powers which 
 she did not possess before." ^ But it seems that she did acquire 
 a capacity to contract which she did not possess before, namely, 
 to effect a policy of insurance upon her own life or on that of her 
 husband for her separate use.* 
 M. w. p. Act. The Married Women's Property Act, 1882," has conferred 
 upon her very nearly the like full contractual power possessed by 
 a man or an unmarried woman ; the principal condition necessary 
 to make her contract valid was the possession of her separate 
 property. The Act provides that " a married woman shall be 
 capable of entering into and rendering herself liable in respect of 
 and to the extent of her separate property or any contract, and 
 of suing and being sued, either in contract or in tort, or other- 
 
 ' See post, cliap. xv. 
 
 ^ 58 & 59 Vict. 0. 39, B. 4, repealing 41 Vict. c. 19, s. 4. This jurisdiction can be 
 exercised by tlie court before whom the husband is found guilty of .an aggravated 
 assault on indictment. 
 
 ' 33 & 34 Vict. c. 93. 
 
 " Per Jessel, M.R., in Howard v. Bank of England, L. R, 19 Eq. 295. 
 
 ' Sect. 10. " 45 & 46 Vict. c. 75. 
 
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CHAP. xiv.J CONTRACTS BY MARRIED WOMEN. 283 
 
 wise, in all respects as if she were a feme sole." ' The word 
 " contract " includes the acceptance of any trust or of the oflBce 
 of executrix or administratrix." Every contract under this Act 
 entered into by a married woman with respect to and to bind her 
 separate property binds not only the separate property which she 
 is possessed of or entitled to at the date of the contract, but also 
 all separate property which she may hereafter acquire.' The 
 effect of these provisions is that a married woman with separate 
 estate at the time of incurring a liability is now enabled to enter 
 into all sorts and kinds of contracts, and to bind her property, 
 both that which she had at the time of entering into the contract, 
 and that which she may subsequently acquire, unless she is 
 restrained from anticipating her fortune. 
 
 Previous to the coming into operation of the Act, every con- Onus of proof 
 tract made by a married woman must have been either made with property'* 
 express reference to her separate estate, or have been a contract formerly on 
 
 (.1 11-T-ii !■ • creditor. 
 
 of such a nature as must have been intended to be so referred, m 
 order to bind the separate estate of which she was capable of dis- 
 posing at the time of making the contract.* When the reference 
 was not express, the onus of proving that the married woman, 
 living with her' husband, so contracted as to bind her separate 
 property, lay upon the creditor, and was a fact to be decided by 
 the evidence in each case ; * her " general engagements," such as 
 her bonds, bills of exchange, promissory notes and the like, were 
 capable of binding her separate property." 
 
 But sub-section 3 of section i enacts that "every contract Kew presump- 
 entered into by a married woman shall be deemed to be a con- against^mar- 
 tract entered into by her with respect to, and to bind her separate ™'* women in 
 
 •' "^ ' _^ respect of their 
 
 property, unless the contrary be shown." The effect of this sub- contracts. 
 section was to create a new presumption in law, namely, that a 
 contract made by a married woman is made in respect of her 
 separate estate. The former law on this subject has been well 
 summarized by Sir G. Jessel, M.E.,' who said, " A married woman, 
 or rather her separate estate, was liable to make good all contracts 
 which are made by her with express reference to the separate 
 estate, or which from the nature of the contract itself must be 
 intended to be so referred; but she is not liable even for general 
 contracts which from their nature cannot be so referred." Where 
 a married woman was living with her husband, and made a con- 
 tract under circumstances consistent with her being the agent of 
 
 ^ Sect. I, eub-8. 2. ^ Sect. 24. ' Sect, i, sub-s. 4. 
 
 * Wainford v. Heyl, L. E. 20 Eq. 321. 
 
 ' Johnson v. Gallagher, 30 L. J. Ch. 298. " Ihicl. 
 
 '■ Wainford y. Heyl, L. K. 20 Eq. 321, 324. 
 
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284 HUSBAND AND WIFE. [pakt i. 
 
 her husband, the fact of her cohabitation with him was, if not a 
 strong presumption of her agency on his behalf, at any rate 
 primA facie evidence of it, and he had to rebut the presumption; 
 but now the onus is shifted on to the wife to show and prove her 
 agency, if she desire to protect her property. This important 
 alteration of the law must have a marked effect upon the rela- 
 tions of a married woman with those who hold negotiable instru- 
 ments, drawn, accepted, or indorsed by her in her own name, and 
 with nothing on their face to show agency on her part. If she 
 now renders herself liable on a negotiable instrument, without 
 stating on its face that she is her husband's agent, her liability, 
 so far as he is concerned, is sole and confined to herself, though 
 formerly the husband might have been sued as acceptor on a bill 
 Not liable which he did not expressly authorize her to accept.' She 
 miherparHs will, however, be freed from liability where she can prove that 
 proved. gjjg ^g^g agent for her husband or some disclosed principal ; 
 
 but where she acted as agent for an undisclosed principal (other 
 than her husband), the right of the creditor to sue her at his 
 option ought not, it seems, to be defeated by her proving that she 
 was acting for the undisclosed principal, and not to bind her own 
 property. 
 
 Many contracts which formerly were held not to bind a married 
 woman's separate property will now do so. But up till quite 
 recently where she was not possessed of separate property, she 
 could not enter into a valid contract ; as formerly she could not 
 contract to bind property over which she had no power of appoint- 
 ment,^ so now she cannot validly charge her property which 
 she is restrained from anticipating.' The restraint not only 
 affects her capacity to charge her property during coverture,* but 
 her debt or contract cannot be enforced against her property 
 even after coverture has terminated, and the restraint no longer 
 exists. 
 Liability of A married woman in the future will be primd facie liable for 
 
 marned j_i ■ • . 
 
 ■woman on con- contracts, even those arising quasi ex contractu, or creating a 
 
 noTbin^^^'^ legal obligation, some of which formerly were held not to bind 
 
 her. Thus she will be liable generally on her bills of exchange, 
 
 promissory notes, and cheques,'^ where having separate estate she 
 
 contracts to take shares in her own name in a joint-stock com- 
 
 1 Lindus v. Sradwell, 5 C. B. 583. This case will be of no authority under the 
 altered state of the law. 
 
 2 Marshall v. Mutton, 8 T. E. 545. 
 
 " FiJee V. FitzgiVbon, 17 Ch. D. 454. See the principle in Kiiig v. Lucas, 23 Ch. 
 D. 712. 
 
 * Chapman v. Biggs, 11 Q. B. D. 27. 
 
 ^ See Bills of Exchange Act, 1882, 45 & 46 Vict. u. 61, ti. 23 ; see ante, p. 281. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 285 
 
 pany, whicli is afterwards wound up ; ^ she will be liable for the 
 rents and profits of an estate upon which she has entered and 
 occupied under a mistaken impression it was her own property ;" 
 so, too, where she has a general power of appointment over her 
 personalty, and she charges it in favour of her creditors.^ She 
 will also be liable for costs of suits improperly instituted against 
 her husband.* She formerly was not, but now will be, liable as Married 
 to her separate property, on what may be termed an implied uabie in 
 assumpsit, or on a legal obligation, under the following circum- <^s^m'sit. 
 stances': — For work done by a solicitor in respect of her property, 
 though there be no actual contract on her part to pay him ; ' or 
 for work done by a solicitor whom she, as the wife of a lunatic, 
 instructs to act for her and her children in a suit to which she is 
 not a party, and which does not relate to her own property,^ or 
 for repayment of money when paid to her under a mistake ; ' or 
 where money has been paid to her under a consideration which 
 has wholly failed.^ Where she lives apart from her husband, 
 and has separate estate, she will be rendered liable on her con- 
 tracts ; 5 whether, having ample separate property, she can bind 
 her husband for necessaries when living apart because of his 
 misconduct is not clearly decided.'" She probably cannot. It 
 would seem to depend less upon whether her separate estate 
 is sufficient to maintain her decently in her proper position 
 than whether his implied authority to her to pledge his 
 credit could be said still to exist. Where she carries on a trade 
 apart from her husband she will also be absolutely liable on her 
 contracts." 
 
 More latterly it seemed only right and proper that where a Liability of 
 married woman had a right to contract and did contract, that she Mnds^notonfy 
 should bind not onlv the property which she possessed at the date P^P^rty at 
 
 " r r •/ r ^ date of contract 
 
 of entering into the contract, but that which she afterwards but after-ac- 
 acquired. Malins, V.C., followed this idea in Pike v. FitzgiUbon,^^ projferty. 
 in which he held the married lady's subsequently-acquired property 
 liable to satisfy debts contracted by her before it came into exist- 
 ence. Parliament gave legislative sanction to the principle 
 enunciated in the Vice-Chancellor's judgment by enacting sub- 
 
 1 Mrs. MaUhewman' s Case, L. E. 3 Eq. 781. 
 
 2 See Wright t. Ghard, 29 L. J. Ch. 82, 415. 
 
 3 London Chartered Bank of Australia v. Lempriire, 4 L. R. P. C. 572. 
 « M. V. a, L. E. 2 P. & D. 414. 
 
 ^ Calloiv V. Howie, i De G. & Sm. 531. 
 
 ^ Be Pugh, 17 Beav, 336. ' Wright v. Chard (ubi sup.). 
 
 8 Duhe of Bolton r. Williams, 2 Ves. 138. 
 ' Hodgson v. Williamson, 15 Ch. Div. 87. 
 
 ^o See Davidson v. Wood, 32 L. J. Ch. 400; post, p. 310. " Sect. I, sub-s. 5. 
 
 ^^ 14 Ch. D. 837. The learned judge was, however, overruled by the Court of 
 Appeal, 17 Ch. D. 454. 
 
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28C 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Free separate 
 property 
 necesaary to 
 validity of 
 contract. 
 
 When allega- 
 tion of separate 
 estate neces- 
 sary in state- 
 ment of claim 
 
 married 
 
 woman. 
 
 section 4 of section i of the Act under discussion, to the effect 
 that " every contract entered into by a married woman with 
 respect to and to bind her separate property shall bind not only 
 the separate property which she is possessed of or entitled to at 
 the date of the contract, but also all separate property which she 
 may thereafter acquire." But the effect of this Act is not retro- 
 spective ; therefore, contracts effected by married women before 
 the date of its operation would be governed by the law prevailing 
 at the time at which they were made ; ' so a judgment in an 
 action on a contract made by her before the above date could not 
 be executed against property to which she became entitled after 
 the date of the contract.^ This subsequently-acquired property 
 must be as free from the restraint against anticipation as the pro- 
 perty possessed by the married woman at the time of entering 
 into the contract ; from this it follows that after the words " all 
 separate property she may thereafter acquire," words to the 
 effect, "over which she has unfettered power of disposition" 
 must be read. The contractual capacity, then, of a married 
 woman depends under this Act, as under the principles of equity, 
 upon the possession of property settled to her separate use 
 (whether by force of the statute or gift of private parties) with 
 which she is free to deal.' Sub-section 3 of section i enacts 
 that " Every contract entered into by a married woman shall be 
 deemed to be a contract entered into by her with respect to and 
 to bind her separate estate, unless the contrary be shown." This 
 presumption is conditioned upon her possessing free separate pro- 
 perty at the time when she enters into a contract ; and where she 
 does not possess any separate property at that period, any such 
 presumption is rebutted. Thus, to make a valid contract under 
 the Act a married woman must still possess some free separate 
 property in respect of which she must be deemed to have con- 
 tracted ; * and the onus of proving that at the time of the con- 
 tract or incurring the debt she possessed such free separate 
 property is on the person who seeks to enforce his right against 
 her.'* He need not allege in his statement of claim against her 
 that she was in the possession of separate property at the time of 
 the contract, unless he seeks to obtain summary judgment against 
 
 \ 
 
 ^ Conolan v. Leyland, 27 Ch. D. 632. 
 
 ^ TurnbuU V. Forman, 15 Q. B. D. 234, approving of Conolan v. Leyland (uhi sup.), 
 and disapproving of the effect of <he decision in Bursill v. Tanner, 13 Q. B. D. 691 ; 
 Ee Some, Ex -parte Home, 54 L. T. 301 ; Smitli v. Whitloch, 55 L. J. Q. B. 286. 
 
 ' See post, chap, xv., Eestraint on Anticipation. 
 
 ^ Palliser v. Qurney, 19 Q. B. D. 519 ; ^togdon v. Lee; [1891] i Q. B. 661 ; Ee 
 Shalspear, Dealcin v. Lahin, 30 Ch. D. 169. 
 
 '> Palliser v. Gurney {uli svj).) ; Wliitalicr v. Van der Smissen, 4 T. L. R. 707 ; 
 Everett v. Paxton, 65 L. T. 383. 
 
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CHAP. xiv.J CONTRACTS BY MARRIED WOMEN. 287 
 
 her estate in default of appearance to the writ.' Separate estate Separate 
 with a restraint against anticipation on it is not such free subJeoTto 
 separate property.^ If, therefore, a married woman had no Restraint uot 
 existing free separate property at the time of making a contract, 
 such contract was null and void, and did not bind subsequently- 
 acquired property, though it might have been free from any such 
 restraint.' 
 
 In a series of cases under this Act ■* it has been decided that Presumptioa 
 the presumption in sub- section 3 of section i of the Act marfed 
 that her contract is entered into with respect to and to J^"^*"^"'*"^'^ 
 bind her separate property must be a reasonable one, and 
 is not satisfied when at the time of the contract her free 
 separate property is mainly represented by her personal clothing,* 
 or where such is a very small sum of money in proportion to the 
 amount involved in the contract, and she is restrained from 
 anticipating the corpus of her property ; " or where the husband 
 would be primarily liable for the contract entered into by her, as 
 for a solicitor's costs incurred by her in procuring a divorce from her 
 husband.' Alimony which has been decreed to a married woman 
 is not separate estate in respect of which she can be deemed to 
 contract.' But if she possess free separate property, it need not 
 be money or securities for money, but may consist of such articles 
 of luxury as jewelry, furs, or the like, and she may be reasonably 
 deemed to have contracted in respect of such." Again, where 
 she has income derived from property (which she is restrained 
 from anticipating) paid periodically to her, while such income is 
 unspent and she contracts debts bearing a reasonable proportion 
 to the amount of such unspent income, she will be bound by her 
 contract.'" Where, however, a married woman is a member of a 
 trading firm, she will be deemed to have sufficient separate 
 estate to enable her to sue or be sued on her contract, and the fact 
 of her husband being also a member of the firm does not remove 
 that presumption." If she pay money into court in order to 
 
 ^ Tetley v. Griffith, 57 L. T. 673. But the plaintiff, if lie has not alleged it, will 
 be allowed to amend, or proceed to judgment on an affidavit that the defendant was 
 possessed of separate estate at the time of entering into the contract. 
 
 2 Be GlanvUl, Ellis v. Johnsnn, 31 Gh. D. 532; Pelton [Brothers) v. Harrison 
 [1891], 2 Q. B. 422. '^ Be Shalcspear, Deahin v. Lakin [uhi sup.). 
 
 * It is suggested, with submission, that some of these decisions do not seem to be 
 based upon a thorough appreciation of the effect of sub-sects. 2, 3, and 4 of sect, i of the 
 Act. ^ Leake v. Driffield, 24 Q. B. D. 98. 
 
 ^ Braunstein v. Levjis, 65 L. T. 449. 
 
 '' Harrison v. Harrison, 13 P. I*. 180. 
 
 ^ Anderson v. Hay, 7 T. L. R, 113. 
 
 " Bonner v. Lyon, 38 W. E. 541. 
 
 1° Everett v. Paxton (uhi sup.). In this case the Court was divided, Grantham, 
 J., upholding the decision of the county court judge, which was in accordance with the 
 terms of the text, Smith, J., dissenting. 
 
 '^ Eddowes v. Argentine Loan and Mercantile Agency Co., 62 L. T. 602. 
 
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under the Act. 
 
 288 HUSBAND AND WIFE. [part i. 
 
 obtain leave to defend an action brought against her she cannot 
 afterwards be allowed to urge that such money could not properly 
 be taken in execution to satisfy her creditor's claim.' The words 
 in sub-section 3 of section i " unless the contrary be shown," 
 only admit evidence of there being no free separate property in 
 respect of which a married woman could reasonably be deemed 
 to have contracted and not of any intention or absence of 
 intention so to contract at the time of making the contract.^ 
 They would, of course, admit evidence of her contracting as 
 agent and not as principal, whether for her husband or a 
 stranger. 
 
 Where a married woman is sued otherwise than in contract, 
 proof of the existence of separate estate at the time of the con- 
 tract is not necessary, as in such a case her liability to be sued 
 is general.^ This will now render her liable to be sued in 
 respect of many matters in which she would have been held not 
 liable under the former law. 
 Wide liability This Act has so widely extended the scope of the contractual 
 powers of a married woman that nearly all the ordinary incidents 
 of a full contractual capacity will ensue ; thus debts contracted 
 by her since the operation of the Act will be statute barred if 
 not paid or sufficiently acknowledged within the period of limita- 
 tion.^ A debt contracted by her before this Act came into force 
 is barred after six years if unacknowledged by analogy to the 
 Statute of Limitations.* So, too, the requirements of the 
 Statute of Frauds must be complied with by her; and she 
 will be liable not only for express but for implied contracts, 
 for which formerly she was not held responsible.* Her 
 verbal engagements, too, will not bind her where the statute 
 requires in the case of a feme sole that it should be made in 
 writing, as where she verbally undertakes to pay the debt of 
 another.' As a debtor she will be entitled to aliene or dispose of 
 
 1 Bird Y. Barstow, [1892] i Q. B. 94. 
 
 ^ Bonner v. In/on, 38 W. E. 541. This case was not cited, it would seem, in 
 Braunstein v. Lewis, either before Day, J., (64 L. T. 265), or in the Court of Appeal 
 (65 L. T. 449), and the Court in the later case seems to have lost sight of the 
 liability of the married woman's after-acquired property to satisfy an earlier debt or 
 contract. Bonner v. Lyon would seem to be more correct. 
 
 ' Whittaker v. Kershaw, 45 Ch. D. 230. In Hood Barrs v. Oathcart [1894] 
 2 Q. B. 574, Kay, L.J., said it was difficult to reconcile this decision with Palliser v. 
 Gwrney, 19 Q. B. D. 519, Stogdon v. Lee, [1891] i Q. B. 661, and Leake v. Driffield, 
 24 Q. B. D. 98. 
 
 ^ Be Hastings, Hallett v. Hastings, 35 Ch. D. 94. 
 
 ^ IKd, This case explains away and overrules Norton v. TurviU, 2 P. Wms. 144, 
 and Hodgson v. WiUiaimon, 15 Ch. D. 87. In these two cases the statute was held 
 not to run against her creditor's claim, which was held to be in the nature of a charge 
 upon a trust fund in existence, and the statute does not apply to trusts. But this 
 doctrine was erroneous, and is long since exploded. 
 
 '' Jones v. Harris, 9 Ves. 493 ; Agu'dar v. Aguilaa-, 5 MadJ. 414. 
 
 '' He Syhes' Trusts, 6 L. T. 350. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 289 
 
 her separate property before her creditor has proceeded to 
 judgment, and the latter is not on his part entitled to any mesne 
 process anterior to judgment by which to restrain her from so 
 dealing with her separate property.' 
 
 There is now no reason why a decree of specific performance Specific per- 
 should not be pronounced against a married woman in respect of decreed 
 her contract, provided she had free separate property at the time ^^rr^'ed 
 of entering into the contract if made before December 5 th, 1893, woman, 
 and is not incapacitated by any restraint against anticipation from 
 dealing with the property the subject-matter of the decree for 
 performance.^ Since the above date the possession of separate 
 property at the date of the contract is not necessary. 
 
 In one important respect a married woman is on a different Married 
 footing to a man or a single woman; she cannot be niade ^adeTno™" 
 bankrupt in respect of her debts and liabilities unless she carries afeoable to 
 
 r r ^ . Bankruptcy 
 
 on a trade apart from her husband; that is to say, she cannot be Laws, 
 made amenable to the bankruptcy laws in respect of her ordinary 
 contracts.^ If as a non-trader she becomes insolvent, there is no 
 means by which her separate estate can be rateably divided 
 among her creditors, but the claims of the latter will be 
 discharged in order of priority.* 
 
 Contracts under Married Women's Property/ Act, 1893. — A con- Contracts 
 siderable alteration in the law affecting the contractual capacity p. ^ot, 1893.' 
 of married women has been effected by the passing of the 
 Married Women's Property Act, 1893;* but as the provisions 
 of this Act are not retrospective it was thought necessary to con- 
 sider the law at various periods anterior to December 5th, 1893, 
 the date of its coming into force. It has been seen that 
 to render a married woman's contract valid and effective she 
 must have possessed free separate property at the moment of its 
 inception, in respect of which she could reasonably be deemed to 
 have contracted '^ ; that is, there were two conditions precedent 
 to an effective contract by her, (i) the existence of separate pro- 
 perty ; (2) its freedom from any restraint against anticipation. 
 Section i of the Act enacts that " Every contract entered into 
 by a married woman, otherwise than as agent, (a) shall be 
 deemed to be a contract entered into by her with respect to and 
 to bind her separate property, whether she is or is not possessed 
 of or entitled to any separate property at the time when she 
 enters into such contract." The effect of this is to put a married 
 
 ^ Sobinson v. Pickering, 16 Ch. D. 660. 
 
 ^ Fry, Sp, Perf. 686-690 ; and see the judgment of Lord Blackburn in Gahill v. 
 Cahill, 8 App. Cas., p. 436. ^ Sect, i, sub-sect. 5. 
 
 * Johnson v. Gallagher, 30 L. J. Cfa. 298, secus. if she die insolvent ; see p. 234. 
 ^ 56 & 57 Vict. 0. 63. 8 Ante, pp. 284 et seq. 
 
 T 
 
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290 HUSBAND AND WIPE. [part i. 
 
 woman on an equal footing with men or unmarried women so far 
 as her contractual capacity and liability depend upon her having or 
 not having any separate estate at the time of making the contract. 
 If she is actually penniless, or has only separate property which 
 she is restrained from anticipating at the time of entering into a 
 contract, her contract is now valid and will bind any after-acquired 
 free separate property.^ This in effect overrules Palliser v. 
 Chirney,^ Stogdon v. Zee,' Re Shahspear, Deahin v. Lakin* Leake, v. 
 Driffield,^ and Brawnstein v. Lewis.^ The effect of the present 
 enactment may not have been altogether in the minds of the 
 Legislature when they passed the Married Women's Property 
 Act, 1882, but it is not difficult to see that the effect of some of 
 the last-mentioned decisions cut down to the most slender dimen- 
 sions the alteration sought to be introduced by the earlier Act. It 
 will be now unnecessary to allege in a statement of claim in an 
 action brought against a married woman on a contract or 
 liability made or incurred since the passing of the Act that she 
 was possessed of separate estate, whether the plaintiff seeks 
 summary judgment or not ; and Tetley v. Griffith ' is no longer 
 law as regards contracts made since December 5th, 1893. 
 Effect of There is a proviso in the Act which prevents any impairing of 
 
 preserved. the effect of a restraint against anticipation, making the property 
 affected by it non-available for satisfying any liability or obliga- 
 tion arising out of her contracts ; but the fact of the restraint no 
 longer has the effect of rendering the property practically non- 
 existent for contractual purposes.^ 
 
 It will be observed that in this section ' of the Act the 
 expression " otherwise than as agent " is substituted for " unless 
 the contrary be shown" in sub-section 3 of section i of the Act 
 of 1882.'° This is a corollary to the largely increased con- 
 tractual capacity flowing from the existence of separate property 
 being no longer necessary to the validity of a married woman's 
 contracts. The presumption against her that her contract is her 
 own is greater than it was under the Act of 1882, especially 
 as interpreted by the decisions in the cases above-mentioned. 
 The burden of proof that the married woman possessed 
 separate estate is no longer on the creditor ; and if she seeks to 
 be quit of the liability incurred by her in her own name, the 
 onus of proof is on her to show that at the time of entering into 
 the contract she was acting as agent for her husband or some 
 third person ; and the ordinary principles governing the relations 
 
 1 Sub-sect. 6. 2 ig Q. B. D. 519. " [1891] i Q. B. 661. 
 
 * 30 Ch. D. i6g. " 24 Q. B. D. 98. " 65 L. T. 449. 
 7 57 U. T. 673. 
 
 * This overrules Harrison v. Harrison (13 P. D. 180) on this point. 
 » Sent. I. " 45 & 46 Vict. c. 75. 
 
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CHAP. xiv.J CONTRACTS BY MARRIED WOMEN. 291 
 
 of principal and agent will be as applicable to her as to a man 
 or an unmarried woman. But there is still one important 
 respect in which a married woman is on a different footing to a 
 man or a single woman, viz., her non-liability to be made a 
 bankrupt in respect of her debts and liabilities unless she canies 
 on a trade apart from her husband j that is to say, she is not 
 amenable to the bankruptcy laws in the matter of her ordinary 
 post-nuptial contracts,^ even after she has become a widow.^ This 
 non-liability remains unaffected by the Married Women's Property 
 Act, 1893. Before long the only law peculiar to the separate 
 estate of a married woman will be the equity principles governing 
 the effect of the restraint against anticipation. 
 
 Section 2. 
 Contracts with Husband. 
 
 The common law doctrine of the unity of the persons of Contracts be- 
 husband and wife operated to prevent them contracting with each and wif "^*'*"'^ 
 other, and the wife's personality was for most purposes suspended 
 during the coverture. While coverture lasted the wife was in- invalid at law. 
 capable at law of contracting with her hasband, for if she had 
 been allowed to do so, her separate existence would have been 
 clearly recognized.' 
 
 But in equity a married woman was permitted to contract with When valid in 
 her husband in respect of her separate estate," and sue him with ^l'"'^- 
 regard to it.* A woman without separate estate was not capable 
 of validly contracting with her husband any more than with a 
 stranger." Apart from her separate property, as where she was 
 at arm's length with her husband, whenever a wife was placed in 
 the position of a single woman, she was enabled to contract 
 with him ; ' thus, she might validly contract to live separate 
 from her husband,^ or to compromise a divorce suit.^ She could 
 also submit matters to arbitration,'" as the right to compro- 
 mise is incident to the right to sue." Under the Married 
 Women's Property Act, 1882,'^ a married woman, so far as her 
 separate estate is concerned, has acquired an unlimited power of 
 
 ' 45 & 46 Viot. u. 75, sect. 1, sub-sect. 5. 
 
 ^ Re Hewett, Ex parte Levene, [1895] i Q. B. 328, and see Jte Lynes, Ex parte 
 Lester, [1893] 2 Q. B. 113. 
 
 ^ Lanoy v. Duchess ofAtkol, 2 Atk. 444. 
 
 * Hevnson v. Negus, 22 L. .T. Cb. 655 ; Teasdale v. Sraithwaite, 5 Ch. D. 630; 
 Woodward V. Woodward, 11 W. R. 1007. 
 
 ^ Woodward v. Woodward [uhi sup.). * See Walrond v. Walrond, John. 18. 
 
 ' Vansittart v. Vansittart, 4 K. & J. 62. * Besant v. Wood, 12 Ch. D. 605. 
 
 ' Mart V. Eart, 18 Ch. D. 670. 1° Macgregor v. Macgregor, 21 Q. B. D. 424. 
 " See UahiU v. Cahill, 8 App. Cas. 420. 
 ''^ 45 & 46 "Vict. u. 75, sect. I, sub-sect. 2. 
 
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292 HUSBAND AJSTD WIFE. [pabt i. 
 
 contracting with all persons, including her husband ; and any 
 property coming to her through a contract with her husband and 
 from him is her separate estate ; and any coming from the wife 
 would equally be the husband's.' Thus, where a wife buys 
 furniture or other chattels of the husband, which remain at the 
 matrimonial domicil, though they are in the apparent possession 
 of the husband, yet the title being in the wife draws after it the 
 legal possession of the goods. ^ 
 Gifts and loaus Another result of the common law doctrine of the unity of 
 husband and liiisband and wife was that they could not validly make gifts to 
 ^i^e. one another by any conveyance whether of real or personal 
 
 atiaw."^*' property, to take effect in possession, reversion, or remainder.^ 
 Their capacity to make a valid bequest to each other was based on 
 the fact that the gift or legacy could not take effect till the 
 When valid coverture was at an end. But equity has altogether modified this 
 **"' ^' doctrine of law ; and gifts from one to the other which are io7id 
 Gift of realty. Jide and not fraudulent will be supported.* In former times, to 
 make a gift of real estate between husband and wife valid, the 
 parties must have had recourse through the Statute of Uses ° to a 
 trustee, who served as the conduit-pipe of the interest passing from 
 the husband to the wife ; the incapacity of the married couple to 
 contract with each other prevented the husband standing seised 
 to the use of the wife." If the husband had assigned property to 
 trustees without valuable consideration on behalf of his wife, he 
 might by his conduct constitute himself an agent of his wife and 
 the trustees in respect of the property so assigned.' The like 
 doctrine prevailed where the parties were reversed. The wife 
 also could take from the husband by a purchase made by him in 
 her name, or in their joint-names, which was presumed to have 
 been intended as a gift and advancement to her, unless evidence 
 Conveyancing of a different intention was adduced.' By section 50 of the 
 ' ' ^' Conveyancing Act, 1881,^ husband and wife are rendered capable 
 of conveying to each other their real property and choses in 
 action, either alone or jointly with another person. The effect of 
 this section is merged in the wider powers and capacities of the 
 Married Women's Property Act, 1882, and a wife may give to 
 
 1 This capacity to contract with each other, with the result of the wife taking as 
 her separate property what she obtains from her husband, is seemingly one of the many 
 opportunities the spouses have for praotisiiig fraud on each other's creditors. 
 
 2 Eamsay v. Margrett [1894], 2 Q. B. 18. 
 
 * Co. Litt. 187 h ; i Br., H. & W. 29 ; and see Phillips v. Harnett, i Q. B. D. 440. 
 
 * Lucas V. Lucas, i Atk. 270 ; Beard v. Beard, 3 Atk. 72. When such will be 
 deemed fraudulent and void as against creditors, see ante, chapter viii. pp. 152 
 et se<i. ^ 27 Hen. VIII. c. 10. 
 
 * I Kop., H. & W. 53. See also Ashworth v. Outram, 5 Ch. D. 923. 
 ' Be Lulham, Brinton v. Lulham, 53 L. T. 9. 
 
 * Kingdon v. Bridges, 2 Vern. 67. 
 
 * 44 & 45 Vict. c. 41. 
 
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CHAP, xiv.] CONTRACTS BY MAERIBD WOMEN. 293 
 
 and receive from her husband real property, chattels real and 
 property of every description ; and if she be the donee the inter- 
 vention of a trustee is not requisite. If the effect of the wife's 
 gift of her realty is to convey the legal estate, her acknowledg- 
 ment under the Pines and Recoveries Act ' should be taken. 
 
 Husband and wife were also able to make a valid gift of Gift of 
 chattels to each other, but clear evidence was required of an "^ * 
 intention to make the gift by an assignment to a trustee in trust 
 for the person to be benefited, or by a distinct and irrevocable 
 act of donation, by which, if necessary, equity deemed the donor 
 to be trustee for the donee.^ In order to transfer property by 
 gift there must either be a deed or instrument of gift, or there 
 must be a direct delivery of the thing to the donee. ^ 
 
 A husband might make a gift of a phattel to his wife by a Gift by 
 gift to her separate use to some third person to hold it in trust ^^e.*" 
 for her ; but the intervention of a trustee was never at any time 
 an absolute necessity ; ■* for the husband might, by some unequi- 
 vocal and complete act, divest himself of the property in the 
 chattel and constitute himself a trustee for his vpife in respect of 
 it. The declaration or intention to make a gift, in order to make 
 the gift from husband to wife valid, must have been clear and 
 unequivocal, because, in the case of a gift of chattels by one 
 stranger to another, there must be a delivery of the chattels in 
 order to make the gift complete, whereas in the case of husband 
 and wife, there could not have been such a delivery, for assuming 
 the chattels to have been given to the wife, yet they remained in 
 the legal possession of the husband ; consequently it was impos- 
 sible to give that completion to the gift that was necessary in 
 the case of a gift between strangers.* An exception to this 
 principle of law was in the case of the wife's paraphernalia." 
 Gifts by mere transfer from husband to wife were imperfect in imperfect 
 their character, and were not perfected in equity, on the principle 
 that a transfer does not operate as a declaration of trust, other- 
 wise every imperfect instrument would be made effectual by being 
 converted into a perfect trust.' But by the operation of the 
 
 ^ 3 & 4 Wm. IV. 0. 74, 88. 77-80, as amended by 45 & 46 Vict. u. 39, o. 7. 
 
 ^ See Mews v. Mews, 15 Beav. 529. 
 
 ^ Per Abbott, C.J., in Irons v. Smallpiece, 2 B, & Aid. 551. 
 
 '' Lady Ooivper's Case, cited in Graham v. Londonderry, 3 Atk. 393. 
 
 ^ Milroy v. Lord, 4 De G. F. & J. 264; Orant v. Grant, 34 L. J. Ch. 641 ; 
 Richards t. Delbridge, L. R. 18 Eq. 11; Be Breton, Breton v. Woolven, 17 Ch. D. 
 416 ; Be Whittaker, Whittaker v. Whittaleer, 21 Ch. D. 657. In this last case a piano 
 bought for a wife to learn to play was held to be her separate property. 
 
 * See next chapter. Paraphernalia. 
 
 ' Mih-oy V. Lord [uhi sup.), Bichards v. Delbridge {ubisup.). Be Breton, Breton 
 V. Woolven {ubi sup.) ; Be Whittaker, Whittaker v. Whittaker (ubi sup.). There have 
 been oases to the contrary, such as Baddeley v. Baddeley, 9 Ch, D. 113 ; and J^ox v. 
 Sawks, 13 Ch. D. 822; but their coiTeotness has not been accepted. 
 
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294 
 
 HUSBAND AND WIFE. 
 
 [PAKT I. 
 
 Effect of 
 
 M. W. P. Act, 
 
 1882, on 
 
 imperfect 
 
 gifts. 
 
 Valid gifts. 
 
 What are not 
 gifts. 
 
 Married Women's Property Act, 1882/ husband and wife may 
 as freely make gifts to one another both of real and personal 
 property as to strangers, and the intervention of a trustee is no 
 longer necessary in the case of the wife,^ and so transactions 
 between husband and wife which formerly were ineffectual as 
 being but imperfect gifts would now be valid and good assign- 
 ments. But where the facts still disclose such an imperfect gift, 
 as where the donor took no steps to put the donee in physical 
 possession of the object, when able to do so, but retained that 
 possession himself, equity will, as formerly, refuse to perfect it. 
 After the death of the husband, a gift by him to his wife cannot, 
 as a rule, be established by her uncorroborated evidence ; but 
 such must be clear and unequivocal to support it ; ' for the posi- 
 tion of the parties enables fraud to be easily perpetrated ; and 
 the Court, through the infirmity of human testimony, is liable to 
 be deceived. 
 
 Gifts between husband and wife must now be proved, just as 
 gifts between strangers. The following have been held valid 
 gifts between husband and wife : A transfer by the husband of 
 stock already purchased into the wife^'s name, or their joint 
 names ; * a transfer by him in the names of himself and his wife 
 and a stranger, the latter being deemed a trustee for the wife ; * 
 allowing a wife to receive a legacy, with the proceeds of which an 
 account at a bank is opened and investments made by her ; ° 
 a verbal ante-nuptial agreement that money standing to the credit 
 of the wife on deposit at a bank in her maiden name should 
 be her separate property.^ Where stock is standing in the 
 sole name of a married woman, the onus of proving that it is 
 not her property is on her husband or those claiming under 
 him.* 
 
 The following have been held not to be gifts : Moneys 
 belonging to a husband proved to have been invested by the wife 
 without his consent, for such remain in equity his property ; ' 
 savings by her out of moneys allowed for household purposes 
 cannot be invested by her as her separate property without his 
 consent,'" unless they are living apart ; " if such savings are in- 
 vested in the wife's sole name, the onus of proving that they are 
 not the wife's separate property is on the husband or his repre- 
 
 1 45 & 46 Vict. t. 75. 2 gg(,(._ j^ sub-sect. i. 
 
 2 He Whiitaher, WhittalcerY. Whittaker, 21 Ch. D. 657. 
 
 ' Lucas \. Lucas, 1 Atk. 270 ; George v. The Bank of England, 7 Price, 646 
 Re Eyhyn'a Inists, 6 Ch. T>. 115. 
 
 ° lie EyTiyn's Trusts (uhi sup,). ^ Parker v. Lechmere, 12 Ch. D. 256. 
 
 ' Ex parte Whitehead, Be Whitehead, 14 Q. B. D. 419. 
 
 8 45 & 46 Vict. c. 75, ss. 6, 7. 9 Barrack v. M'Culloch, 5 W. E. 38. 
 
 1° Brooke v. Brooke, 17 L. J. Ch. 401. ^^ Ihid. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 295 
 
 sentatives.' It is not, however, every gift by a husband to a wife 
 that is valid for all purposes ; and a gift that may be good as When gift 
 between the parties ^ may be inefifectual as against his creditors ; bankruptcy 
 so where a gift was for the purpose of preserving the thing given '*^- 
 for the enjoyment of the donee, it was held to be a voluntary 
 " settlement of property" within the meaning of section 47 of the 
 Bankruptcy Act, 1883,' and void against the trustee in bank- 
 ruptcy of the donor or settlor ; * and section i o of the Married 
 Women's Property Act, 1882, provides that "Nothing in this Act 
 contained shall give validity as against creditors of the husband 
 to any gift by a husband to his wife of any property which, 
 after such gift, shall continue to be in the order and disposition 
 or reputed ownership of the husband, or to any deposit or other 
 investment of moneys of the husband made by or in the name of 
 his wife in fraud of his creditors ; but any money so deposited 
 or invested may be followed as if this Act had not passed." A Legacy to 
 gift to a wife by way of legacy, with immediate payment directed, priority. 
 does not create priority for the legacy ; and if the husband's 
 personal estate is insufficient to pay all the legacies in full, that 
 ia favour of the wife is liable to abatement.^ 
 
 The capacity of a wife to make a gift of her separate property Gift by wife 
 to her husband as well as to strangers has long been recognized ; ° 
 and a gift of such property to her husband was deemed to be 
 valid, unless she could prove fraud, duress, or the like, on his 
 part." This would seem to be still the law ; and to sustain a gift 
 from the wife to the husband the latter must produce cogent 
 evidence of her intention to make it.' This omos exists notwith- 
 standing the change introduced by the Married Women's Property 
 Act, 1882 ; and it is probable that a married woman will not be 
 permitted to give a fund in court to her husband without having 
 her consent first taken in court.' A gift is more readily assumed 
 in the case of the income of her separate property ; and if she 
 pay the income of her separate estate to her husband, that fact 
 may operate as a gift to him ; " and if while living together she 
 either pays or allows him to receive such income for joint family 
 purposes, that fact would constitute a gift, and she would not be 
 
 ^ 45 & 46 Vict. c. 75, ss. 6, 7. 
 
 ^ Groves v. Groves, 3 Yo. & Jer. 163. See also Curtis v. Price, 12 Ves. 103 ; 
 French v. French, 6 De Gr. M. & G. 95. ' 46 & 47 Vict. c. 52. 
 
 * Be Vansittart, Brown v. Vansittart, 67 L. T. 592. 
 
 ^ lie Schweder's Estate, Oppenheim v. Schweder, [1801] 3 Ch. 44. In this case 
 Blower y. Morrett, 2 Ves. Sen. 400, was followed, but Bardyy. Hardy, 17 Ch. D. 
 798, was dissented from. 
 
 ^ Fissex V. Atkins, 14 Ves. 542 ; Lmn v. Ashton, i E. & M. 190. 
 
 ' Bich V. Cockell, 9 Ves. 369 ; Hughes y. Wells, 9 Ha. 749 ; and fee Be Whittdker, 
 21 Cb. D. 657. 8 g^e Wadsworth v. Dayrell, 4 AV. E, 689. 
 
 " Woodward v. Woodward, 3 T)k G. J. & S. 672. 
 
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296 HUSBAI^D AND WIFE. [paut i. 
 
 allowed to recall it/ The rule in equity is that, when husband 
 and wife have lived together, the wife cannot charge her husband 
 or her husband's estate as her debtor for arrears of her separate 
 income which she has permitted him to receive. The object of 
 this rule, according to Lord Hardwicke, was to prevent such 
 accounts between husband and wife which it would be impossible to 
 determine according to the rights after the death of the parties.^ 
 
 Bat the above rule is not so applicable where the husband 
 receives the capital separate property of the wife ; ^ thus the 
 transfer of her separate property into her husband's name is not 
 ^er se sufficient evidence of a gift to him for his own use,* even 
 where it can be shown that she allowed the property to be trans- 
 ferred ; and the burden is on the husband or his representatives 
 to show that the wife had given him the property.* If the wife 
 is willing to make a gift of her separate estate to her husband, 
 which is transferred into their joint names, but he refuses to 
 accept it, and treats the property as his wife's, the husband will 
 be treated as a trustee and not as donee.* But if she knowingly 
 and voluntarily allows her husband to use her separate capital 
 property for his business purposes and not by way of mere loan, 
 she will be deemed to have made a gift of it to him ; ' also 
 where she appoints her separate property for his and her own 
 absolute use and benefit, and she and her husband concur in the 
 sale and transfer of such property.^ Where a wife living together 
 with her husband permits him to make investments with her pro- 
 perty in their joint names, the ordinary incidents of property 
 held in joint tenancy apply, and such investments will accrue to 
 the survivor." 
 
 If a married woman carrying on a trade apart from her 
 husband were to make a voluntary gift to him under circum- 
 stances which would, in the event of her bankruptcy, entitle the 
 trustee to follow the property, the husband would be compelled 
 
 ^ Powell V. Hanlcey, 2 P. Wms. 82 ; Caton v. Bideout, i Mac. & G. 599 ; Me 
 Young, Trye v. Sullivan, 28 Ch. D. 705 ; Edward v. Oheyne (No. 2), 13 App. Cas. 
 385 ; lie I'iamank, Wood v. Coclc, 40 Ch. D. 461. 
 
 ^ Per Lord MacNaghten in Edward v. Cheyne (uhi sup.). 
 
 ^ Darhin v. Darhin, 17 Beav. 578 ; Scales v. Baker, 28 Beav. 91 ; Dixon v. 
 Dixon, 9 Ch. D. 587 ; Be Curtis, Sawes v. Curtis, 52 L. T. 244 ; Be Flamank, 
 Wood V. Coch {ubi sup.) ; Be Hawes, Biirchell v. Hawes, 62 L. J. Ch. 463. In 
 . Darldn v. Darkin, the whole of the purchase money of an estate conveyed to the 
 husband consisted of moneys belonging to the wife which had been invested in the j'lint 
 names of the husband and wife ; after the death of the husband, the widow was held 
 entitled to the property as against the husband's devisee. In Scales v. Baker the 
 estate was purchased in part out of the wife's separate property and conveyed to the 
 ■ husband, and no intention to make a gift was established : the wife was held entitled 
 to a lien on the estate to the extent of her share of the purchase money. 
 
 * Bich V. Cockell, 9 Ves, 369. ' Be Curtis, Hawes v. Curtis (ubi svp. ) 
 
 " Be Blake, Blake v. Bower,^ 60 L. T. 663. 
 
 ' Gardner V. Gardner, i Giff. 126. ^ ITatev. Sheldrake, 60 Jj. T. 292. 
 
 " Be Young, Trye v. Sullivan [ubi sup.). 
 
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CHAP, siv.] CONTRACTS BY MARRIED WOMEN. 297 
 
 to restore it. So, too, a gift by a wife to her husband of property 
 which continues in her order and disposition would not prevail 
 against the claim of her trustee in bankruptcy.' 
 
 If a husband is a solicitor and his wife is settling 
 her property in his favour, there is a duty cast on him to 
 explain most fully the provisions in his favour, and after his 
 death the burden of proof will lie on his representatives to 
 uphold it.^ 
 
 A husband formerly at common law could not make a valid Loan by hus- 
 loan to his wifej both because it was in the nature of a contract, 
 and whatever property might have passed by delivery reverted to 
 him in virtue of his marital right. But in equity the husband 
 was enabled to sue his wife in respect of her separate estate.' 
 The husband can make a valid loan to his wife of property, 
 whether specific chattels or other things. The Married Women's 
 Property Act, 1882, has not interfered with his right against his 
 wife's separate property, and he can maintain an action against 
 her to charge her separate estate for money lent by him to her 
 after marriage.'' The loan would become the separate property of 
 the wife, and be unaffected by the control of the husband, except 
 so far as he had the right to recall it, when the purposes 
 for which it was made were at an end, or the period for 
 which it was lent was terminated, or he deemed it advisable to 
 recall it. 
 
 In equity the capacity of a wife who had separate estate to By trife to 
 make a valid loan to her husband was clearly recognized, and she 
 might have sued her husband, or proved against his estate after 
 death, like any other creditor.* Her capacity for making loans M. W. P. Act, 
 to her husband is fully recognized by the Married Women's Pro- 
 perty Act, 1882; " but in respect of them she is postponed till 
 his other creditors have been paid in full. Section 3 of that Act 
 enacts : " Any money or other estate of the wife lent or intrusted Wife's claim 
 by her to her husband for the purpose of any trade or business poned to that 
 carried on by him, or otherwise, shall be treated as assets of her "tii'er^CTedi-'' 
 husband's estate in case of his bankruptcy, under reservation of tors in 
 
 ..,,. ,..-- T 1. bankruptcy. 
 
 the wifes claim to a dividend as a creditor tor the amount or 
 value of such money or other estate, after, but not before, all 
 claims of the other creditors of the husband for valuable consi- 
 deration in money or money's worth have been satisfied." ' This 
 
 1 See 45 & 46 Vict., c. 75, s. 10. ^ Lovesey v. Smith, 15 Ch. D. 655. 
 
 3 Butler V. Butler, 16 Q. B. D. 374. ■* Ibid. 
 
 ' Woodward v. Woodward 11 W. E. 1007. 
 « 45 & 46 Vict., c. 75, 8. 3. 
 
 '■ Ee Genese, Ex -parte District Banl; of London, 16 Q. B. D. 700. This section, it 
 will be seen, adopts the principle of the " reputed ownership " clause of the Bankruptcy 
 
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298 HUSBAND AND WIFE. [pabt i. 
 
 is an application of the principle embodied in the Partnership 
 Partnership Law Amendment Act, 186=;,' which in its turn has been repealed 
 
 Acts 1861; J ■^ 7 J. 
 
 and 1890. ' and re-enacted by the Partnership Act, 1890,^ that where money- 
 is advanced by way of loan to a person engaged in business in 
 consideration of a share in the profits of the business, on such 
 trader being adjudged a bankrupt, entering into an arrangement 
 to pay his creditors less than twenty shillings in the pound, or 
 dying in insolvent circumstances, the lender shall not be entitled 
 to recover his loan till the claims of the other creditors of the 
 borrower for valuable consideration have been satisfied. The 
 wife living with her husband is deemed to share in a larger 
 manner than his other creditors in the advantages and profits of 
 her loan and advance made to him in the way of his business or 
 trade, whatever the terms as to the interest she is to receive may 
 be.' This principle has been applied where the woman was not 
 lawfully married to but was living with the man.* The third 
 section of the Married Women's Property Act, 1882, is limited 
 in its effect to cases of the hankrwptcy of the husband, and would 
 not apply to an arrangement to pay a composition to his creditors. 
 By the joint operation of section 3 of 45 & 46 Vict. c. 75, and 
 of section 10 of the Judicature Act, 1875, her claim is liable to 
 be postponed where she is a creditor against the insolvent 
 estate of her husband which is being administered by the Court 
 of Chancery, for the latter section provides that in the adminis- 
 tration by the Court of the assets of any person who may die 
 .... and whose estate may prove insufficient for the payment 
 in full of his debts and liabilities, the rules in bankruptcy shall 
 prevail and be observed as to debts and liabilities proveable ; '' but 
 if the widow be executrix or administratrix of her late husband, 
 whose estate is insolvent, her common law right of retainer is not 
 affected by this section of the Judicature Act or the third section 
 of the Married Women's Property Act, 1882 ; and if assets come 
 to her hand as such representative of her husband, she will be 
 allowed to retain out of them the amount of a loan made by her 
 to him in his business out of her separate estate." 
 
 Acts, so as to pass to the husband's creditors any property lent to him by his wife, and 
 in his order and disposition ; though such reputed ownership must be sole and not joint, 
 Ex parte Dorman, (L. E. 8 Ch. App. 54) ; thus, furniture, &c. , the separate property 
 of the wife, in the joint occupation of the married couple, will not form part of the 
 husband's assets. 
 
 1 28 & 29 Vict. c. 86, s. S (Bovill's Act). 
 
 - 53 & 54 Vict. c. 39, SB. 2 {3 d), 3. 
 
 3 Per Cave, J., in Ee Tidswell, Ex parte Tidswell, 56 L. J. Q. B. 548. 
 
 * Be Beale, Ex parte Oorbridge, 4Ch. D. 246. 
 
 ^ i?e May, Crawford v. May, 45 Ch. D. 499 ; Me Leng, Tarn v. Emmerson, 
 [1895] I Ch. 652. 
 
 ^ Me May, Crawford v. May [uhi svp.). 
 
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CHAP, xiv.j CONTRACTS BY MAERIED WOMEN. 299 
 
 Formerly a wife was allowed to prove in the administration of 
 her dead husband's estate for the amount of a transaction which 
 amounted to a loan and not a gift on her part ; ' but with the 
 exception just pointed out that would not now be permitted. 
 The effect of the section under discussion is not retrospective.^ 
 The words " or otherwise " in this section seem to have very little When claim of 
 meaning, for they have been held to refer neither to a case where ^ned!° ^° 
 a loan was made by a wife to her husband for private purposes, 
 though he was in trade,^ nor to a case where a loan was made by 
 her to a trading firm of which her husband was a member.* The 
 wife's claim would seem only to be postponed where the loan has 
 been made to the husband as a sole trader. But where she lends 
 money to her husband who is in trade or business, the onus is on 
 her to show that the money was not lent for the purposes of his 
 trade or business.* If she take a security for the loan she will be 
 allowed to retain it till her claim has been satisfied," for the 
 principle of Bovill's Act applies only where the sole security is 
 the personal responsibility of the trader.' She will not be post- 
 poned where her husband has fraudulently converted her separate 
 property without her consent.^ So, too, trustees of a marriage 
 settlement who have power to apply money brought into settle- 
 ment by the wife for the husband's advancement, and do not 
 advance it for his trading or business purposes on his personal or 
 other security, would not be postponed under this section.^ 
 
 Where she advances money to her husband not for his trade or 
 business purposes, the equity rule which regarded the property of 
 the wife lending money to her husband as a mere surety for his 
 debts, giving her all the rights of a surety will be preserved. 
 These included the valuable right of having her real estate 
 exonerated after her husband's death out of his real and personal 
 property in cases where she had mortgaged her realty in order to 
 pay ofi" his debts.'" But where the money is shown to have been 
 advanced for his trading or business purposes, then the provisions 
 of this section will prevail ; and any claim to be exonerated will 
 have effect given to it only after the husband's other creditors 
 have been fully satisfied. 
 
 • Woodward v. Woodward, ii "W. E. 1007. 
 
 2 Be Home, Ex parte Home, 54 L. T. 301. 
 
 2 Re Tidswell, Me parte TidsweU, 56 L. J. Q. B. 548. See Maclcintoah v. Pogose, 
 [1895] I Ch. 505. 
 
 4 Se Tvff, Ex parte Nottingham, 19 Q. B. D. 88. 
 
 ^ Me Qenese, Mx parte District Bank of London, 16 Q. B. D. 700. 
 
 6 Ex parte JSheil, Be Lonergan, 4 Ch. D. 789. ' Lind. Part. 59. 
 
 ' See principle of Lacey v. Hill, 4 Ch. D. 537 ; S. C. 3 App. Cas. 94. 
 
 8 Be Kershaw's Trusts, L. K. 6 Eq. 322. 
 
 1" Huntingdon v. Huntingdon, 2 Bro. P. C. i; Wh. and T. L. C. 1 147 ; Bobinson 
 V. Gee,i Ves. Sen. 252 ; Ferguson v. Gibson, L. K. 14 Eq. 385. 
 
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, 300 HUSBAND AND WIPE. [paet i. 
 
 Loan by hue- Since the passmff of the Married Women's Property Act, 1882, 
 
 baud to wife as , , . . ^ f , • • -i , ■ ■, ■ ■ n 
 
 separate trader tne question may be litigated as to what is the position or a 
 postpone™^*' 'husband who has made a loan to his wife, who, carrying on a 
 >P"ere. trade or business separately from him, has been adjudicated a 
 
 bankrupt. By sub-section 5 of section i, she may carry on 
 a trade apart from her husband, and may be made bankrupt in 
 respect of such separate trading. If the husband make her a 
 loan for the purposes of her separate business and she becomes 
 bankrupt, will he be entitled to rank in competition with Ler 
 other creditors; or will his claim be postponed till those of the 
 other creditors have been satisfied, on the application of the prin- 
 ciple of Bovill's Act above mentioned ? ' As the bankruptcy law 
 is regulated by statute, and as by it every bond fide creditor has 
 a right to a share in the bankrupt's property available for distri- 
 bution, if the husband is a hond fide creditor, he ytoxAA primd facie 
 be entitled to prove in competition with the rest of the creditors 
 and share in any dividend that might be declared. But probably 
 the decision of the Courts would depend upon the facts in each 
 case. If the trade or business were carried on nominally apart 
 from the husband, who participated in the profits and reaped 
 jointly with his wife the benefit of his own adyance, his claim 
 would no doubt be postponed. If, on the other hand, it were 
 shown that the advance was hond fide, and he in no way derived 
 any benefit from the trade or business in the way of sharing 
 profits or otherwise, then his claim would probably be admitted 
 pari passu with those of the other creditors. 
 
 A husband and wife may execute a valid, conveyance of chattels 
 to each by mere delivery ; and if any question as to the posses- 
 sion of such goods arises, it will be determined in favour of the 
 spouse who has the title to them.^ They can also execute a hond 
 fide bill of sale to each other.^ 
 
 Section 3. 
 
 Contracts hy Married Women as Agents whether for Third 
 Persons or their Hushands. 
 
 Marriage, as has already been shown, operated at common law 
 to disable a married woman from contracting so as to bind herself 
 or her husband, though in equity she could contract so as to 
 charge her separate property. But coverture did not take away 
 the wife's capacity to be an agent for third persons or for her 
 
 1 28 & 29 Vict. 0. 86 as amended by 53 & 54 Vict. 0. 39. 
 
 2 Bamsay v. Margrett, [1894] 2 Q. B. 18. 2 jf^i^ 
 
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CHAP. XIV. j CONTRACTS BY MARRIED WOMEN. 801 
 
 husband, or to bind the latter by her contracts made with his 
 assent or ratified by him. 
 
 Where a married woman is directly employed by a third Married 
 person as agent, or her engagements are ratified by him, the to'thM^^" 
 ordinary law regulating the relations of principal and agent will persons. 
 be applied. Under the old law it was the authority of her prin- 
 cipal, whether evinced by his direct mandate or by subsequent 
 ratification, that clothed her contract with validity, and without 
 that authority her contract was null and void ; it bound neither 
 herself nor the person for whom she purported to act. Parol 
 evidence that some person other than the married woman was the 
 principal may be given.^ Under the Married Women's Property m. w. p. Act, 
 Act, 1882,^ when a married woman enters into a contract she is ^^®^' 
 deemed to do so on her own behalf and with the intent to bind 
 her separate property, unless the contrary is proved, and one 
 method of proving the contrary is by showing she acted as an 
 agent only. Under the more recent Married Women's Property m. w. p. Act, 
 Act, 1893,^ she acquires complete contractual power. Here the ^^53- 
 phraseology is altered ; for it runs, " Every contract hereinafter 
 entered into by a married woman, otherwise than as agent, shall 
 be deemed to be a contract entered into by her with respect to 
 and to bind her separate property, whether she is or is not in fact 
 possessed of or entitled to any separate property at the time 
 when she enters into such contract." As the law now stands, a 
 married woman who is affected by the Act of 1882, can escape 
 liability for her contracts by showing that she did not possess any 
 separate estate or any free separate estate at the time of the 
 contract, or was acting as agent only ; while one who is affected by 
 the Act of 1893 can only escape liability for her valid contract 
 by showing she acted as agent only. It is immaterial whether 
 such agency is on behalf of third persons or her husband. 
 
 If the wife is alleged to have acted on the express authority of wife as agent 
 her husband, questions of law in the matter can scarcely arise ; expres^s'*"''' 
 her express authority must be proved, like the express authority authority. 
 of any other agent, and the only dispute would be as to whether 
 the facts proved did or did not constitute her such express agent. 
 As long as the wife's authority lasts she can render her husband 
 liable for contracts entered into by her within the scope of her 
 authority, but which can be revoked at any moment by him.* 
 
 The question here for discussion is how far a wife can act as How far wife 
 agent for her husband so as to bind him, or render him liable on bind^her "^"^ 
 
 husband, 
 
 1 Mmunds v. Bvshell, L. E. I Q. B. 97 ; Evans, Prin. & Agent, 358. 
 
 2 45 & 46 Vict. li. 75, s. I, sub-sect. 3. ^ $6 h 57 Vict. 63, sect, i (a). 
 ^ JExparte Vemall, Be Coolc, 10 Morr. Bank. Eep. 8. 
 
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802 HUSBAND AND WIFE. {part i. 
 
 contracts, whether for necessaries supplied to her for her use 
 alone, or for the use of the household generally, or on contracts 
 Liability of not Connected with necessaries. The capacity of the wife to bind 
 on the law of her husband as his agent is not a novel doctrine of the law, for it 
 agSit^^^*"'' is laid down in Pitzherbert,' that "a man shall be charged in 
 debt for the contract of his bailiff or servant, where he giveth 
 authority to his bailiff or servant to buy and sell for him ; and so 
 for the contract of his wife, if he giveth his authority to his wife ; 
 otherwise not." Thfe law is also stated by Bayley, J.,^ to be as 
 follows : " If a man without any justifiable cause turn away his 
 wife, he is bound by any contract she may make, for necessaries 
 suitable to her degree and estate. If the husband and wife live 
 together, and the husband will not supply her with necessaries, or 
 the means of obtaining them, then although she has her remedy 
 in the ecclesiastical court, yet she is still at liberty to pledge the 
 credit of her husband for what is strictly necessary for her own 
 support. But whenever the husband and wife are living together, 
 and he provides her with necessaries, the husband is not bound 
 by contracts of the wife except where there is reasonable evidence 
 to show that the wife has made the contract with his assent." 
 Thus, the husband's liability may arise from the contract having 
 been made by his wife as his agent, whether connected or not with 
 necessaries, or in respect of necessaries only, from his improper 
 refusal or neglect to supply her with necessaries. 
 
 A wife was treated as agent for her husband under circum- 
 stances which, if she had been a stranger, would not have consti- 
 tuted her his agent. It was and is a well-recognized principle 
 that no person can be made liable as drawer, indorser, or acceptor 
 of a bill of exchange or promissory note, who has not signed it 
 as such ; ' but in one case it has been held that the drawee of a 
 bill of exchange accepted by his wife in her own name, but by 
 his authority, was liable upon the bill as acceptor." But now, 
 unless the agency appeared on the face of the instrument, her 
 acceptance in her own name would bind her alone ; because, 
 owing to the altered relations between husband and wife, the 
 rule of law as to negotiable instruments would apply equally to 
 them as to strangers ; and the presumption is that the liability is 
 that of the wife alone.* 
 Implied Where the wife is only impliedly authorized, as his agent, to 
 
 ail on y. contract for necessaries, then the chief difficulties arise, and the 
 
 > F. N. B. G. 120. ^ In Montague v. Benedict, 3 B. & C. 631, 635. 
 
 ^ See 45 & 46 Vict. u. 61, s. 23 ; see also the same eeotion for the exceptions to 
 the rule. 
 
 ■> Lindus v. Bradwdl, 5 C. B. 583. 
 
 ^ See 45 and 46 Vict. 0. 75, s. i, eub-sect. 3. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 303 
 
 scope and extent of her agency and authority can only be 
 gathered from the conduct of the parties. If a husband hold out 
 his wife as his agent, and afterwards become a lunatic, a third 
 person who deals with the wife during his lunacy, but without 
 notice of it, can recover from the husband in respect of a contract 
 made on his behalf, by his wife, during his lunacy, though as 
 between the spouses her agency was determined by his lunacy.' 
 But where a wife was found to have an implied authority to 
 pledge his credit for necessaries, her authority was revoked by his 
 death, even though she had contracted before she could possibly 
 have known of it.^ This authority on the part of the wife to Agency of wife 
 pledge her husband's credit is not a mere creature of law, but faot^^ '°" ° 
 must be based upon some substantial conduct of the husband 
 expressly or implicitly assenting to be bound; thus, where the 
 wife had certain house repairs executed while her husband was a 
 lunatic, she was held not to have had authority to pledge his 
 credit for things other than necessaries, which the repairs were 
 found not to be ; ^ yet he would be held liable, though a 
 lunatic, where his wife, having an insufficient allowance, incurred 
 expenses on his behalf which could be brought under the descrip- 
 tion of necessaries ; ■* or for money advanced to and applied by 
 her in the purchase of necessaries.'* 
 
 This question of the liability of the husband for the contracts Liabmty of 
 of his wife for the supply of necessaries will be divided into two coutraot of" 
 parts:— wife for 
 
 r necessanes. 
 
 (i) Where the contract by the wife was made while living 
 with her husband. 
 
 (2) Where the contract by the wife was made while living 
 apart from her husband. 
 
 (i) WTvere the Contract was made hy the Wife while Living with Contract made 
 her Hv^hand. — The mere fact of cohabitation does not imply a uving -jpith 
 legal mandate making the wife an agent in law to bind her ''"^*>*'i<i- 
 husband, and to pledge his credit." His liability for the debts 
 contracted by his wife for necessaries rests solely on the doctrine 
 of principal and agent. The wife cannot bind the husband with- 
 out his assent, express or implied. It is the duty of the husband 
 to cherish and support his wife and family ; and she, as his agent, 
 
 1 Drew V. Nunn, 4 Q. B. D. 661. 
 
 2 Smout V. Ilbery, 12 L. J. Ex. 357 ; Blades v. Free, 9 B. & C. 167. But these 
 cases may very probably not be followed in the future, as they seem to strain the law. 
 
 ^ Richardson v. Dubois, L. R. 5 Q. B. 51. See Smout v. Ilbery {uhi sup.). 
 
 * Mead V. Legard, 20 L. J. Ex. 309. 
 
 ^ Davidson v. Wood, 32 L. J. Ch. 400 ; lie Wood's Estate, i De Gr. J. &; S. 465. 
 This case would not now be so decided, because the wife had separate property. See 
 Liddlow V. Wilmot, 2 Stark. 86. 
 
 * See the case of Debenham v. Mellon, 6 App. Cas. 24. 
 
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304 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Presumption 
 of authority 
 to pledge his 
 credit arises 
 from cohabita- 
 , tion. 
 
 Presumption 
 holds good in 
 case of a mis- 
 tress ; 
 
 or other 
 delegate. 
 
 Mandate from 
 fact of coha- 
 bitation an 
 implication of 
 fact, and not a 
 conclusion of 
 law. 
 
 may make valid contracts on his behalf; but as he has to sustain 
 the burden of the debts contracted, his judgment should be per- 
 mitted to regulate the expenditure according to his means.' 
 During cohabitation, there is a presumption arising from the very- 
 circumstances of the cohabitation of the husband's assent to con- 
 tracts made by the wife for necessaries suitable to his degree and 
 estate ; that is to say, a wife has an implied authority to pledge 
 her husband's credit for such things as fall within the domestic 
 department ordinarily confided to her management, and are neces- 
 sary and suitable to the style in which her husband chooses to live.^ 
 Though this presumption extends, as a rule, only to the wife's con- 
 tracts for goods suitable to the husband's degree and estate, yet if he 
 knowingly permit her to assume an appearance beyond that estate 
 and degree, he will be liable for goods which might reasonably be 
 supplied to a person in her assumed station of life, and the trades- 
 man is not bound to inquire into the truth of her style and 
 appearance, for that concerns her husband alone.' From this it 
 follows that the husband will iwt be responsible for goods sup- 
 plied to his wife beyond his station in life without his assent.* 
 It would be going too far to say that extravagance on the part of 
 the wife would negative the presumption of her husband's implied 
 assent, but it would be evidence to go to the jury that she had 
 acted without his authority.'* 
 
 This presumption holds good, not only in the case of a wife, 
 but of a mistress living with a man, and who passes for his wife ; 
 and it is immaterial whether the person supplying the goods was 
 or was not aware of the relations between them," and this liability 
 on the man's part will continue, even after the cohabitation has 
 ceased, unless the parties supplying the goods are affected with 
 knowledge of the separation.' The liability would be the same 
 where the delegated person was a sister, or housekeeper, or 
 steward, or bailiff. 
 
 The question has been asked many times whether the fact of 
 cohabitation implies a mandate in law to the wife making her 
 agent of her husband, so as to bind him and pledge his credit. 
 The proper answer is neither in the affirmative nor negative, but 
 rather that the mandate from cohabitation must be an implication 
 of fact, and not a conclusion of law? No man is to be bound 
 
 ' Manly v. 8cott, i Sid. iqq. 
 
 ^ Etherington v. Parrott, 2 Lord Eaym. 1006 ; JPhiUipson v. Hayter, L. E. 6 C. P. 38. 
 3 Waithman v. Wakefidd, 1 Camp. 120 ; Meredith\. Footner, 12 L. J. Ex. 183. 
 * Montague v. Benedict, 3 B. & C. 631. ^ Lane v. Ironmonger, 14 L. J. Ex. 35. 
 " Watson V. Threlheld, 2'Esp. 637. 
 
 '' Ryan v. 8ams, 17 L. J. Q. B. 271 ; Monro v. de Chemant, 4 Camp. 215. 
 s Lane v. Ironmonger (ubi sup.) ; Jolly v. Bees, 33 L. J. C. P. 177 ; BehenhamY. 
 Mellon, 6 App. Gas. 24 ; S. C. in Court of Appeal, 5 Q. B. D. 394. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 305 
 
 against his will, and if the husband, like any other principal, can 
 show that his assumed agent had no authority from him to pledge 
 his credit, it will be open to him to do so. In other words, where 
 a wife is living with her husband, the presumption is that she has 
 his authority to bind him by, her contracts for articles suitable to 
 that station which he permits her to assume, but that presumption 
 may be rebutted by showing that she had not such authority. 
 This doctrine was laid down in the two important cases of Jolly 
 V. Rees, and Debenham v. Mellon, and is now settled law. 
 
 In Jblli/ V. Bees, the majority of the court (Brie, C.J., and Presumption 
 Williams and Willes, J-J., Byles, J., dissenting) laid down the authority 
 following proposition :' " We consider that the wife cannot make rebuttable, 
 a contract binding on her husband unless he gives her authority 
 as his agent to do so. We lay down this as the general rule, 
 premising that the facts do not raise the question, What might 
 have been the rights of the wife, either if she was living separate 
 without any default on her part towards her husband, or if she 
 had been left destitute by him ? . . . Where a plaintiff seeks to 
 charge a husband on a contract made by his wife, the question is 
 whether the wife had his authority, express or implied, to make 
 the contract ; and that if there be express authority, there is no 
 room for doubt, and if the authority is to be implied, the pre- 
 sumptions which may be advanced on one side may be rebutted 
 on the other ; and although there is a presumption that a woman 
 living with a man, and represented by him. to be his wife, has 
 his authority to bind him by her contract for articles suitable to 
 that station which he permits her to assume, still this presump- 
 tion is always open to be rebutted." 
 
 In Debenham v. Mellon,^ which decided that where a husband Debenham v. 
 
 Mellon. 
 
 1 15 C. B. N. S. 628, at p. 639. The facts of this case were as follows : — The 
 plaintiffs, Messrs. Jolly, were hosiers and linendrapers at Bath. The defendant was a 
 gentleman of small fortune, residing about two miles and a half from the railway 
 station at Llanelly, in Carmarthenshire. His family consisted of four sons and two 
 daughters. He was a magistrate for the county, and his establishment was moderate. 
 The goods in respect of which the action was brought were supplied by the plaintiffs 
 upon the orders of Mrs. Eees during the years i860 and 1 86 1. They consisted of 
 drapery and millinery goods suitable for persons in the position of Mrs. Eees and her 
 daughters. The prices were fair and reasonable. The orders were conveyed by letter, 
 and the goods were directed to "Llanelly," none being sent directly to the defendant's 
 house. The defence set up was, that the wife had a sufScient allowance to enable her 
 to obtain articles of the description of those in question without pledging her husband's 
 credit for them, and that he had expressly prohibited her doing so. It was conceded 
 that the plaintiffs had received no notice of the defendant's prohibition to his wife to 
 pledge his credit. Upon the findings of the jury, the learned judge directed a verdict 
 for the plaintiffs for the amount claimed, but with leave for the defendant to move to 
 enter a verdict for him, if the court should see fit. The court entered the verdict for 
 the defendant. 
 
 ^ 6 App. Cas. 24 ; S. C. Court of Appeal, 5 Q. B. D. 304. The facts of the case 
 were as follows : — The plaintiffs were a firm of drapers, and they sued for the price of 
 articles of dress sold by them to the defendant's wife. It was admitted that the prices 
 were reasonable, and it was not disputed that the articles of dress were necessaries for 
 
 U 
 
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306 HUSBAND AND WIFE. [part i. 
 
 neither does, nor assents to, any act to show that he has held out 
 his wife as his agent to pledge his credit for goods supplied on 
 her order, the question whether she bears that character must be 
 examined upon the circumstances of the case. 
 
 In the House of Lords, Selborne, L.C., said:' "The first 
 question before your lordships is, whether the mere fact of mar- 
 riage implies a mandate by law, making the wife (who cannot 
 herself contract, unless so far as she may have separate estate) 
 the agent-in-law of her husband, to bind him, and to pledge his 
 credit, by what otherwise would have been her own contract, if 
 she had been a feme sole. On that point, I think it enough to say 
 that, according to all the authorities, there is no such mandate in 
 law from the fact of marriage only, except in the particular case 
 (Jases in which of necessity — a necessity which may arise when the husband has 
 pledge her hus- deserted the wife, or has by his conduct compelled her to live 
 band's credit, g^pg^^j. f^^^ j^jj^j^ without properly providing for her, but not when 
 the husband and wife are living together, and when the wife is 
 properly maintained ; because there is, in that state of circum- 
 stances, no pnmd facie evidence that the husband is neglecting 
 to discharge his necessary duty, or that there is any necessary 
 occasion for the wife to run him into debt for the purpose of 
 keeping herself alive, or supplying herself with lodging or clothing. 
 I therefore lay aside that proposition ; and^ thinking it clear that 
 there is no mandate in law by the mere fact of marriage appli- 
 cable to such a state of circumstances as we have at present to 
 Presumption consider, I pass to the next question, whether the law implies 
 
 arises not from Tj.ii •/</■ iiii- /. . •,» 
 
 marriage, but a mandate to the wiie, irom the the tact, not of marriage, but of 
 cohabitation, cohabitation ? If it does, on what principle ? Cohabitation is 
 not (like marriage) a status, or a new contract ; it is a general 
 expression for a certain condition of facts. If, therefore, the law 
 did imply any such mandate from cohabitation, it must be as an 
 implication of fact, and not as a conclusion of law." His lord- 
 ship also stated that though a husband may not intend to hold 
 her out as his agent, and though she may not actually have had 
 authority, he may have so conducted himself as to entitle a 
 tradesman dealing with her to rely upon some appearance of 
 
 the defendant's -wife, in the sense that they were suitable to her degree and condition 
 in life. The defendant relied upon a secret revocation of his wife's authority to pledge 
 bis credit. The defendant aiid his wife were called as witnesses, and stated that by an 
 arrangement made between them he was to furnish her with money to supply herself 
 and her children with clothes, and that he had positively forbidden her to exceed it. 
 They lived together, and an allowance of £^,2 a year was paid by the husband to the 
 wife for that purpose. In some years the allowance was increased to £62. The judge 
 asked the jury whether, at the time when the goods were ordered, the defendant had 
 withdrawn from his wife authority to pledge his credit, and had forbidden her to do so ; 
 the jury answered this question in the affirmative. Judgment was entered for the 
 defendant. 
 
 1 6 App. Cae. pp. 31, 32. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 307 
 
 authority for which he ought to be held responsible. Lord 
 Blackburn, in the course of his judgment, remarked : ' " The 
 question comes to be, first, had she, from her position as wife, 
 authority to pledge her husband's credit, although the husband had 
 revoked that authority ? I grant that the fact of a man living 
 with his wife, frequently, and indeed always, does afford evidence 
 that he intrusts her with such authorities as are commonly and 
 ordinarily given by husband to wife. ... In the ordinary case 
 of the management of a household the wife is the manager of the 
 household, and would necessarily get short and reasonable credit 
 on butchers' and bakers' bills and such things; and for these she 
 would have authority to pledge the credit of the husband. I 
 think that if the husband and wife are living together, that is a 
 presumption of fact from which the jury may infer that the 
 husband really did give his wife such authority. But even then, 
 I do not think the authority would arise, so long as he supplied 
 her with the means of procuring the articles otherwise. But 
 that is not the present question, which is this : Had the wife a 
 mandate to order the clothes which it would be proper for her in 
 her station in life to have, though the husband had forbidden her 
 to pledge his credit, and had given her money to buy clothes ? 
 I think, for the reasons given by the majority of the judges 
 in Jolly V. Bees, and also by the judges in the Court of Appeal in 
 this case, that there is no authority and no principle for saying 
 that the wife had authority to pledge her husband's credit. I 
 quite agree that if the husband knew that the wife had got credit, 
 if he had allowed the tradesman to suppose that he himself had 
 sanctioned the transactions by paying them, or in other ways, it 
 might very well be argued that he would have given such evi- 
 dence of authority that if he did revoke it, he would be bound to 
 give notice of the revocation to the tradesmen and to all who 
 had acted upon the faith of his authority and sanction. That 
 would be the general rule, for where an agent is clothed with an 
 authority, and afterwards that authority is revoked, unless that 
 revocation has been made known to those who have dealt with 
 him, they would be entitled to say, ' The principal is precluded 
 from denying that that authority continued to exist, which he 
 had led us to believe, as reasonable people, did formerly 
 exist.' " , 
 
 This implied authority to pledge the husband's credit is not, Where goods 
 therefore, a mere creature of law, but must be based upon some neoesearies, 
 substantia] conduct of the husband. Where goods within the p"oof°of lia- 
 
 are supplied to tl 
 
 6 App. Cas. pp. 36, 37. 
 
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 category of necessaries are supplied to the wife living with her bUity is on 
 
308 HUSBAND AND WIFE. [paet i. 
 
 husband, she will be deemed to have an implied authority from 
 him to contract/ and the onus is on the latter to show that 
 they were furnished under circumstances not rendering him 
 liable to pay for them ; ^ though evidence is clearly admissible 
 to rebut the implied authority to contract for such goods,^ and 
 that credit was given to the wife herself/ or that the orders 
 Husband may were extravagant, or that she had separate income/ The husband 
 were not Diay also show that the goods sought to be charged for were not 
 
 neceasaries. necessaries, on the ground that his wife was already well supplied 
 with others of the same kind and description ; " for a wife 
 supplied with necessaries according to the state and degree in 
 society of her husband, has no right or power without his 
 previous authority or subsequent sanction' to pledge his credit 
 for expensive articles supplied secretly to her,^ even where he sees 
 them, but disapproves of their purchase.' 
 
 Where a husband makes his wife a suflScient allowance for 
 household management and supply of necessaries, she cannot 
 pledge his credit without his authority," as, for instance, where he 
 has forbidden her to use his credit ; " and d, fortiori, if the trades- 
 man know of the allowance, and during the husband's temporary 
 absence supply his wife with the goods, the goods in such a case 
 are supplied at the tradesman's peril.'^ 
 Notice by Where the husband gives express notice to tradesmen and 
 
 tradesmen not others not to allow Credit to his wife, and they do so, he is not 
 to give ere it. jj^j^^q i3 gg (.^^ also render himself free from liability by refusing 
 to allow his wife any longer to have the authority to pledge his 
 credit ; but this prohibition must be direct, present, positive, and 
 absolute, and not a mere complaint of extravagance, and a declara- 
 tion that he will not pay her bills in the future. It was doubted 
 by Pollock, O.B., in Johnston v. Sumner,'^* whether the husband 
 
 ' Emmstt V. Norton, 8 C. & P. 506 ; Jolly v. Eees, 33 L. J. G. P. 177. Buddich 
 V. Marsh, i H. & N. 601, has been cited as an authority for this proposition, but it 
 really goes further, and has been questioned by Bramwell, L. J., in Debenham v. 
 Mellon, 5 Q. B. D. 394. 
 
 2 &ifford V. Laton, 3 C. & P. IJ. ' Bmeaux v. Teahh, 22 L. J. Ex. 241. 
 
 * Jewsbury v. Newbold, 26 L. J. Ex. 247. 
 
 ^ Freestone v. Butcher, 9 C. & P. 643. 
 
 ^ The proper question to be left to the jury is not whether the articles were or were 
 not necessaries, but whether the wife had authority to pledge her husband's credit. 
 Beid V. Tealde, 22 L. J. 0. P. 161. 
 
 '' Seaton v. Benedict, 5 Bing. 28. 
 
 8 Montague v. Baron, 5 D. & R. 532 ; Montague v. Benedict, 3 B. & C. 631 j 
 31ontague v. Espinasse, i C. & P. 356, 502. 
 
 ^ AtTiins V. Curwood, 7 G, & P. 567. 
 
 1° Athyns v. Bearce, 26 L. J. C. P. 252. 
 
 ^1 Hx parte Holmes, Be Oooh, 10 Morr. Bank. Kep. 12. 
 
 ^^ Holt V. Brien, 4 B. & A., 252 ; Beneaux v. Teahle, {ubi sup.). 
 
 ^' Manby v. Scott, i Sid. 109 ; Etherington v. Barrott, 2 Lord Kaym. 1006. 
 
 " 27 L. J. Ex. 34.1. 
 
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CHAP. xiv.J CONTRACTS BY MARRIED WOMEN. 309 
 
 had the power to limit his wife's authority by any private 
 arrangement of the sort. The Chief Baron there said: "If a 
 man and his wife live together, it matters not what private 
 arrangement they make, the wife has all the usual authorities of 
 a wife." This, as a broad and unqualified assertion, cannot now Husband may 
 be taken to be law, for it is in direct conflict with the law laid authority by 
 down in Jolly v. Eees^ and Dehenham v. Mellon,^ and was directly aSIn* ement • 
 questioned in the latter case by Lord Selborne, who said : " When bit his acts 
 the Chief Baron Pollock, in Johnston v. Sitmner, said, that all the inconsistent 
 usual authorities of a wife under those circumstances might be ^r^gement. 
 assumed, ' notwithstanding any private arrangement,' I suppose 
 him to have in view that state of facts, under cohabitation, when 
 a wife is managing her husband's house and establishment, which 
 usually raises the presumption. If an appearance of authority is 
 once, in fact, created by the husband's acts, or by his assent to 
 the acts of his wife, it may be right to hold, that, as between the 
 husband and a person relying upon that appearance of authority, 
 it cannot be got rid of by a mere private understanding or agree- 
 ment between the husband and wife." 
 
 From this it follows that though the mere fact that a husband Liability of 
 living with his wife and allowing her to manage his household in estoppel. ^ 
 the usual way does not constitute her his " ostensible agent " so 
 as to make her contracts binding on him or require notice to a 
 tradesman not to give her credit in order to protect himself from 
 liability, yet he may be rendered liable on a contract made by his 
 wife though she has no actual authority, if he has held her out as 
 his authorized agent, or if knowing she has been contracting as 
 his agent he stands by and allows another to deal with her as 
 such ; for the doctrine of estoppel by which a man is concluded 
 by his own act to say the truth is equally applicable to the relation 
 of husband and wife as to that of parties not so related, for as 
 Erie, C.J., said, in Jolly v. Bees^ "the husband as well as every 
 principal is concluded from denying that the agent had such 
 authority as he was held out by his principal to have, in such a 
 manner as to raise a belief in such authority, acted on in making 
 the contracts sought to be enforced. Such liability is not 
 founded on any rights peculiar to the conjugal relation, but on a 
 much wider ground." This estoppel usually arises where he pays 
 the bills sent in by tradesmen for goods ordered by his wife, and 
 so induces the creditor to believe that she had authority to pledge 
 his credit. In such a case, if the husband wish to protect himself 
 from further liability, he should give specific notice to the trades- 
 
 1 {UU sup.). 2 6 App. Cas. 24. ^ 15 C. B. IST. 8. 640. 
 
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310 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 Wife's contract 
 for necessaries 
 while living 
 apart from 
 husband. 
 Wife has no 
 presumed 
 authority to 
 pledge his 
 credit ; but by 
 implication 
 may have such 
 authority. 
 
 Separation is 
 de facto a 
 revocation 
 of wife's 
 authority. 
 
 men that the ostensible authority of his wife has been withdrawn. 
 Thus a husband has been held liable for debts contracted by an 
 adulterous wife lining under the same roof with him, though he 
 did not cohabit with her ; ' and a man was similarly held liable 
 for the debts of a woman with whom he lived as his kept 
 mistress, but after she had left him, but the creditor was ignorant 
 of the separation.^ 
 
 (2) Where the Contract hy the Wife was made while Liviry 
 Apart from her Eushand. — The separation between husband and 
 wife may be voluntary on both sides, or involuntary on the part 
 of one. Where the wife lives apart from her husband the pre- 
 sumption is that she has not authority to bind her husband, even 
 for necessaries; and it is incumbent on the person supplying her 
 with goods to show that she is living apart from her husband 
 under such circumstances as give her an implied authority to 
 bind him;' and that the goods supplied were necessaries.* The 
 reason of this rule is, that as marriage casts on the husband the 
 duty of supporting his wife, it is just that any man who holds 
 out a woman to society as his wife should maintain her as such, 
 and it would not be fair to cast upon the tradesman the task of 
 inquiring of the wife whether or not she had the authority of her 
 husband to pledge his credit. But where the wife is living alone, 
 the presumption is rightly the other way ; for when the trades- 
 man trusts her, he trusts her as a feme sole, or if as a married 
 woman, he must more than suspect that she cannot be on such 
 terms of confidence with her husband as to induce the latter to 
 intrust her with authority to bind him by her contracts. Separa- 
 tion is de facto a revocation of the wife's authority ; and the 
 husband is not bound to notify it to the world at large in order 
 to protect himself.^ If a wife with an ample separate income 
 lives apart from her husband (even though such separation is 
 caused by his misconduct), and contracts debts for what would be 
 held to be necessaries, she would not, it seems, have an authority 
 to pledge his credit in respect of them." But the presumption in 
 favour of the husband, just as the presumption against him, may 
 be rebutted by the facts of the case produced in evidence. This 
 splits up this part of the subject into two portions : — 
 
 a. Where the husband is not liable. 
 is liable. 
 
 1 Norton v. Fazan, i B. & P. 226. 
 
 2 Johnston v. Sumner, 27 L. J. Ex. 341. 
 
 * Mainwaring v. Leslie, 2 C. & P. 507. 
 '• Wallis V. BiMich, 22 W. R. 76. 
 
 * See Freestone v. Butcher, 9 C. & P. 643. 
 
 6. Where the husband 
 
 Byan v. Sams, 12 Q. B. 460. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 311 
 
 a. Where the Husband is not liable. — The rule applicable to Husband not 
 these questions was thus laid down by Lord Mansfield : ' " When ^'°^^' 
 husband and wife live separate, the person who gives credit to 
 the wife is to be considered as standing in her place, inasmuch as 
 the husband is bound to maintain her ; and the spiritual court, 
 or a court of equity, will compel him to grant her an adequate 
 alimony ; but if she elope from her husband and live in adultery, 
 or if upon separation the husband agrees to make her a sufficient 
 allowance, and pays it, in either of those cases the husband is 
 not liable, because in the former case she forfeits all title to 
 alimony, and in the latter has no further demands on her husband. 
 And as in all cases the creditor is to be considered as standing 
 in the wife's place, it imports him, when the wife lives apart 
 from her husband, to make strict inquiry as to the terms of 
 separation, for in such cases he must trust her at his peril." If 
 the wife leave the husband at her own instance and through her Authority to 
 own fault, as where she elopes from him and lives in adultery, he baniPs credit 
 is not liable for debts and contracts made by her during: the lost by adultery 
 
 ■' o ^ of wife living 
 
 separation, for her adultery (to be proved at the trial) when living apart from him. 
 
 apart from him destroys her implied agency to pledge his credit ; ^ 
 
 and under the poor law he is not liable to support her.^ This is 
 
 so even when he himself has committed it and turned his wife 
 
 out of doors without any imputation upon her, and she subsequently 
 
 commits the adultery.'' A wife who commits adultery while 
 
 living with her husband has the ordinary authority to pledge his 
 
 credit.^ If a husband desert his wife or compel her to leave 
 
 him but allows her a competent maintenance, he is not liable for 
 
 goods supplied to her, for such are not " necessaries " if she has 
 
 the means herself to procure them.^ If husband and wife 
 
 separate on mutual terms, on which he agrees to make her a 
 
 definite allowance which she accepts as sufficient, and which he 
 
 continues to pay regularly, she cannot by pledging his credit 
 
 obtain an increase of that allowance ; nor is it possible for a 
 
 creditor who trusts her to make her husband pay more than he 
 
 has agreed to do.' Where the husband makes his wife a sufficient Payment of 
 
 allowance, and pays it, he is not liable for her debts. The allowance. 
 
 1 In Ozard v. Durnford, Selw. N. P. 229. 
 
 2 Ham V. Toovey, Selw. N. P. 268 ; Morris v. Martin, Stva. 647 ; JEmmett v. 
 Norton, 8 C. & P. 500 ; Hardie v. Orant, 8 C. & P. 512 : Cooper v. Lloyd, 6 0. B. 
 N. S. 519 : in this case the wife was permitted to give evidence of her adultery. 
 
 3 Oulley v. Oharman, 7 Q. B. D. 89. 
 
 * Govier v. Hancoch, 6 T. K. 603. This is really harsh law, for the act of the 
 husband has in all probability conduced to the misconduct of the wife, and he has by 
 his own conduct deprived himself of the right of putting her away. 
 
 ^ Bobinson v. Gosnold, 6 Mod. 71 ; Needlmm v. Bremner, L. E. i C. P. 583. 
 
 6 Mizen v. Pick, 3 M. & W. 481. ' Eastland v. Burcliell, 3 Q. B. D. 432. 
 
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312 HUSBAND AND WIFE [paet :. 
 
 sufficiency of allowance is a proper question for the consideration 
 of the jury ; ' but it is not necessary for the husband to prove 
 that the wife's creditor knew that he (the husband) made and 
 paid his wife a sufficient allowance." 
 
 There are two cases in the books, namely, Hornbuckle v. Horn- 
 
 lury ' and Harrison v. Eall^ which go to show that where a 
 
 husband allows his wife a separate maintenance, and afterwards 
 
 promises to pay the amount of a debt contracted by her, he is 
 
 When separate bound by his promise, and liable to pay the debt. But these 
 
 maiutenance ■, -, .-i-ii /•*,. n 
 
 agreed upon, cases Can no longer be considered law ; for it is now weJi 
 
 or inadeqSy s^**!®"! t^^'* where husband and wife agree to live apart, and he 
 
 cannot be consents to pay, and she to receive, a certain allowance, which he 
 
 question. regularly pays,^ he will not be liable for her contracts, and the 
 
 adequacy of the allowanoe, even if it prove insufficient, does not 
 
 concern third parties, and so forms no question for a jury to 
 
 consider." The authority the wife possesses is one of necessity 
 
 only, and if she agree to accept a given allowance as sufficient, 
 
 she will be deemed to consider it enough to supply herself with 
 
 the necessaries of life. It is not necessary to free him from 
 
 responsibility that tradesmen and others should be affected with 
 
 notice of the separate allowance.' Where husband and wife 
 
 agree to live apart, she having separate estate, he will not be 
 
 liable to a stranger advancing her money for necessaries ; her 
 
 acceptance of such advances would now amount to a binding of 
 
 Separation by her separate estate.' Separation by divorce,' or by decree of 
 
 ac aw. judicial separation, frees the husband from liability, except in the 
 
 latter case where alimony has been decreed and not paid ; but 
 
 where alimony is regularly paid, the wife has no authority to 
 
 pledge the husband's credit.'" 
 
 Husbandiiabie h. Where the Husband is liable. — The husband is liable for his 
 
 Skjwanle'riot wife's debts for necessaries when he has agreed to make his wife 
 
 P*'''- an allowance, and he does Twt pay it." He is also liable where, 
 
 maintenMLoe separating by mutual consent from his wife, but without an 
 
 upoi^trsuffi- agreement as to the amount of allowance, he either does not allow 
 
 cienoy or in- 
 
 ^'J^^^if.lfL"*^ ' HodqKnson v. Fletcler, 4 Can.p. 70 ; Emmett v. Norton, 8 C. & P. 500. 
 
 onestion ' Holt^. Brien, 4 B. & Aid. 252. ^ 2 Stark. 177. 
 
 ^ ■ ■» I M. & Rob. 135. 
 
 5 Beetle V. Arabin, 36 L. T. 249. Where he has agreed to transfer property to 
 trustees on behalf of his wife, he must show that the trustees have taken possesRion of 
 it under the agreement ; ^Mrreii V. 5oof2/, 8 Taunt. 343. r t t^ 
 
 8 Eastland v. Burchell, 3 Q. B. D. 432. See also Biffin v. Bignell, 31 L. J. llx. 
 igg ' See Hodgson v. Williamson, 15 Ch. D. 87. 
 
 8 Mizen v. Picl, 3 M. & W. 481, not following the language used by Lord Eldon 
 in Bawlyns v. Vandyke, 3 Esp. 250 ; see also Turner v. Winter, Selw. N. P. 229. 
 » Capel V. Powell, 34 L- J- C. P, 168. 
 
 i" Hunt V, De Blaquiire, 5 Bing. 553. -kt t, t, c. r> o 
 
 " Bede v. Arabin (vhi sup.) ; Nurse y. Craig, 2 N. K. H. & i . 148. 
 
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CHAP. XIV.] CONTRACTS BY MAERIED WOMEN. 313 
 
 her any, or only an insnfiScient amount.' The sufficiency or 
 
 insufficiency is a matter for the consideration of the jury." 
 
 Again, he is liable where he is in default by reason of his conduct, Authority of 
 
 as where he turns his wife out of doors, and she has not the '""'®^^' ^' 
 
 physical or pecuniary means of support ; for in such a case it 
 
 may be inferred that she has an authority of necessity.^ Under 
 
 such circumstances the husband is liable to refund the funeral 
 
 expenses of his wife, whether incurred by an undertaker or other 
 
 volunteer." He is also liable for necessaries supplied to his wife, Husband's 
 
 where he unjustly expels her from under his roof,^ and she goes other cases. 
 
 with a credit suitable to her means ;" or where he by his cruelty 
 
 or ill-treatment compels her to leave him.' The ill-treatment need 
 
 not be personal violence, though she must reasonably apprehend 
 
 personal violence, or be subjected to gross outrage, such as the 
 
 introduction of a prostitute into the house.^ A well grounded 
 
 fear of being improperly detained would entitle her to leave his 
 
 house.' He is also liable when he has deserted her;" also where 
 
 after condoning her adultery and taking her back to his home he 
 
 subsequently deserts her or turns her out of doors ;" or where 
 
 after conniving at her adultery he turns her out of doors. '^ But 
 
 if a husband after turning his wife out of doors makes her a 
 
 hoTid fide offer to return, and she has no well-grounded fear of 
 
 personal violence, it would seem that her authority to pledge his 
 
 credit is determined." Where the wife has this authority she 
 
 does not derive it from her husband's will or any doctrine of 
 
 agency, so the latter cannot at any moment and at his own 
 
 pleasure determine it so as to affect her right to be supplied 
 
 with necessaries or of those who have supplied them to be paid 
 
 for the things so supplied." This authority does not extend 
 
 to the case of a woman who has been living with a man, who is 
 
 not his wife, but has been turned out of doors or deserted by 
 
 him.'^ 
 
 If the wife is living with her husband and has a separate 
 
 ^ HodgTcinson v. Fletcher {uhi sup.). 
 
 2 But if the parties had agreed on a sum, then such a question could not properly 
 be left to the jury, for the contracting parties are the best judges of what is reasonable 
 and sufficient. See ante, p. 311. 
 
 ' Bmdton v. Prentice, Selw. N. P. 233 ; Manly v. Scott, i Sid. 109 ; see also 
 Johmton v. Sumner, zy L. J. Ex. 341. 
 
 ■• Amhrose v. Kerrison, 20 L. J. C. P. 135. ^ Baidyns v. Vandylce {uhi sup.). 
 ^ Emery v. Emery, i Y. & J. 501. 
 
 ' Souliston V. Smyth, 3 Bing. 127 ; Bovlton v. Prentice {uhi sup.). 
 ^ Souliston T. Smyth {uhi sup.). 
 ^ Mallelieu v. Lyon, i F. &• F. 431. 
 
 1" Jenner v. Morris, 30 L. J. Ch. 361 ; Deare v. Soutten, L. R. 9 Eq. 151. 
 ^^ Harris v. Morris, 4 Esp. 41. 
 
 12 Wilson V. Olossop, 19 Q. B. D. 379. '^ See Lush, Husb. & AV. 319. 
 1^ Boulton V. Prentice {uhi sup.). '^ Munro v. de C'hemant, 4 Camp. 215. 
 
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314 HUSBAND AND WIFE. [pakt i. 
 
 income, she would still seem to possess the ordinary authority 
 to pledge his credit for the supply of necessaries. If the 
 things ordered by her are not necessaries the fact of her 
 possessing separate income would afford an almost conclusive 
 presumption that the contract was on her own behalf and not 
 that of her husband.' 
 Necessaries. No fixed rule Can be laid down as to what are and are not 
 
 necessaries. "Necessaries" is a relative word, varying with the 
 rank, profession, position, and fortune of the parties ; that which 
 might be a necessary for a peeress would be extravagant and 
 wasteful luxury for the wife of a village apothecary.^ In order 
 to protect creditors the court will permit the test of the position 
 which the parties have chosen to assume and parade, and not 
 their real pecuniary means and resources, for the purpose of 
 ascertaining whether the articles supplied are or are not neces- 
 saries.' The husband is held to be the proper person to decide 
 what station and appearance in life he should assume, and so 
 confer upon his wife ]^& primd facie authority to pledge his credit 
 Necessaries for things suitable and necessary for that station in life.'' Necea- 
 oaniMtweH be saries are things which cannot well be dispensed with ; and, as 
 '^?P®°^®'' applied to a wife, things which it is reasonable she should enjoy, 
 and not merely articles which she is compelled to purchase.* 
 That which is a necessary at one time may not be so at another ; 
 a gown purchased when really wanted may be a necessary, but a 
 similar gown purchased when the wardrobe is full cannot be so. 
 It is, however, an elastic term, and many things are described by 
 it which in popular language could hardly be termed necessaries, 
 but have been brought within the category in order to further the 
 ends of justice. Evidence will now be admitted to the effect that 
 the wife was at the time when she ordered the goods sufficiently 
 supplied with articles of the like nature, so that the articles sup- 
 plied by the creditor were not in the category of necessaries." 
 When a tradesman supplies goods to a married woman, it is 
 incumbent upon him to prove affirmatively that they fall within 
 the category of necessaries.' 
 
 The following is a short list of various things which have been 
 held to be necessaries, and not necessaries, for the supply of which 
 
 '^ See Freestone v. Butcher, 9 C. & P. 643. 
 
 ^ See Lane v. Ironmonger, 13 M. & W. 368. 
 
 '^ This test ia not permitted in the case of infants ; but the question is strictly 
 confined to ascertaining whether the articles supplied, &c., were or were not necessaries 
 for the infanta in their real and actual position. 
 
 * See Manby v. Scott, 2 Sm. L. C. 429; Morgan v. Ohetim/nd, 4 F. & I''. 451 ; 
 Jolly T. Bees, 33 L. J. C. P. 177. » Bazeley v. Forder, L. R. 3 Q. B. 563. 
 
 ° See Baines v. Toj/e, 13 Q. B. D. 410 ; this was a case of alleged necessaries 
 supplied to an infant. 
 
 ' PhilUpson V. Bayter, L. E. 6 C. P. 38. 
 
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CHAP. XIV.] CONTRACTS BY MAREIED WOMEN. 315 
 
 a wife might or might not (as the case may be) pledge his credit. 
 
 The ordinary necessaries are food, drink, lodging, fuel, washing, Food, drink, 
 
 clothing,' and medical attendance where living with the husband,'' ° ^"^' "' , 
 
 and when wrongfully turned out of doors by him, or where it is 
 
 necessitated by his ill-treatment.' So, too, suitable furniture ^ and 
 
 repairs to the husband's house * have been treated as necessaries. 
 
 The expenses of an attorney in assisting the wife to exhibit Legal expenses 
 
 articles of the peace against her husband, even though she ch-cumstances. 
 
 has a sufficient maintenance," also legal expenses incurred in 
 
 defending a wife prosecuted for keeping a bawdy house, her 
 
 husband being aware of that fact, and also being personally 
 
 known to her attorney.' Costs in a petition for divorce 
 
 which the wife was compelled to brinsr ; ^ the expenses incurred Suits in matri- 
 
 . » . T . , . Ill monial causes. 
 
 in a genuine and proper suit tor judicial separation ;^ also legal 
 expenses incurred by a deserted wife — (i) preliminary and inci- 
 dental to a suit for restitution of conjugal rights ; (ii) in obtain- 
 ing counsel's opinion as to the effect of an ante-nuptial agreement 
 for a settlement ; (iii) in obtaining professional advice as to the 
 proper mode of dealing with creditors who were pressing for pay- 
 ment for goods supplied her since desertion; (iv) and in 
 preventing a distress in the house occupied by her for arrears of 
 rent owed by her husband." " Extra costs," or those not allowed 
 on taxation between party and party, incurred in divorce proceed- 
 ings reasonably undertaken by the wife, can be recovered as 
 necessaries." The omcs of proof that the proceedings were neces- 
 sary is on the solicitor seeking to recover them.'^ Such costs as 
 the above will still clearly be recoverable in the case of a wife 
 married before the Married Women's Property Act, 1882, came 
 into force, and, it would seem, where she was married after it 
 became law, but does not possess any property of her own or any 
 free separate property. But it has been doubted whether the 
 wife's solicitor can recover such costs where she was married after 
 the Act came into force, and had free separate property in respect 
 of which she could validly contract." If the wife is the guilty 
 party and has separate property she ought clearly to be made 
 liable for costs ; so, too, if she brings, though innocent, an unsuc- 
 
 >■ Wailis V. Biddich, 22 W. R. 76. ^ Ilarris v. Lee, 1 P. Wms. 438. 
 
 ^ Stoaken v. Pattrick, 29 L. T. 507 ; ForistallY. Lawson, 34 L. T. 903. 
 
 * Hunt V. De Blagui&re, 5 Bing. 550. 
 
 ^ See Bichardson v. Dubois, L. R. 6 Q. B. 51. 
 
 " Turner v. Bookes, 10 A. & E. 47 ; see also Shepherd v. Machoul, 3 Camp. 326. 
 
 '' kshepherd v. Mackoul (uhi sup.). 
 
 ^ Bice V. Shepherd, 6 L. T. 432 ; Wilson v. Ford, L. R. 3 Ex. 63. 
 
 ' Brown v. Ackroyd, 5 E. & B. 819. '■'' Wilson v. Fm-d [ubi sup.). 
 
 11 Ottaway v. Hamilton, 3 0. P. D. 393. 
 
 12 Taylor v. Hailstone, 52 L. J. Q. B. loi. 
 
 13 Otway V. Otway, 13 P. D. 141 ; Ash v. Ash, [1893] P. 231. 
 
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316 HUSBAND AND WIFE. [part i. 
 
 cessful suit against her husband. In divorce proceedings the 
 costs of the wife payable by the husband are not limited to those 
 paid into court, or secured by the husband for that purpose/ 
 Notneoes- The following have been held not to be necessaries. Articles 
 
 saries. c t ^ • i • i 
 
 Articles of 01 mere luxury and ornament are not necessaries, such as articles 
 ^'orarment. °* jewelry not suited to the position of the wife.' The expenses of 
 an indictment preferred by the wife against her husband for 
 assault.' The principle upon which these expenses are disallowed 
 and treated as unnecessary, but those incurred in exhibiting 
 articles of the peace against the husband are allowed,* is that in 
 the former instance the wife seeks to punish her husband, in the 
 latter she only claims protection against him. The counterpart of 
 a deed of separation made for the wife's trustee ; ^ expenses 
 incurred by the wife justifiably living apart from her husband in 
 resisting his endeavours to recover the custody of their child over 
 seven years of age living with her ; " so, too, a solicitor's costs 
 incurred by a wife in endeavouring to procure a judicial separa- 
 tion, are not, and so cannot be recovered as, " necessaries " against 
 the husband, unless the necessity for such proceedings can be 
 made out in point of fact ; and it is not enough that the solicitor 
 had reasonable grounds for supposing upon her statements that 
 the proceedings ought to be taken.' 
 
 The capacity and authority of a married woman to pledge her 
 husband's credit for necessaries when living apart from him has 
 not been altered by the Married Women's Property Acts of 1882 
 and 1893, except that where she is possessed of separate property 
 of her own it will be easily presumed against her that she 
 intended to contract in respect of it.' If, therefore, a married 
 woman living apart from her husband, whether voluntarily or by 
 reason of his wrongful conduct, has sufficient separate estate to 
 maintain herself, whether derived from settled property or her 
 own exertions, she will not have any authority of necessity to 
 pledge his credit ; and it has been decided that if she lives apart 
 from him through his wrongful conduct, but has obtained an 
 order protecting her earnings, she possesses no such authority." 
 
 ^ Bdbertson v. Bohertson, 6 P. D. 119. ^ Montague v. Benedict, 3 B. & C. 631. 
 3 OrindaU v. Oodmond, 5 A. & E. 755. 
 
 * Turner t. Bookes, 10 A. & E. 47. ^ Ladd v. Lynn, 2 M. & W. 265. 
 
 ^ Mecredy v. Taylor, 7 Ir. Rep. C. L. 256. 
 ' Taylor v. Hailstone, 52 L. J. Q. B. loi. 
 
 8 See observations in Otway v. Otway, 13 P. D. 141, and Ash v. Ash, [1893] 
 P. 231. ^ Tempany v. ffakewiil, i F. & F. 438. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 317 
 
 Section 4. 
 
 Incidents of Contractual Power. 
 
 I. Separate Trading hy Married Woman. — Owing to her 
 contractual disability at common law, a married woman could not 
 as a rule trade apart from her husband except as his agent; 
 there were, however, certain exceptions to this rule ; thus, where 
 her husband was civilly dead, as when undergoing a sentence of 
 transportation for felony ; ' and by the custom of the City of 
 London she might carry on a trade within the City as a feme 
 sole? Under the Divorce Act, 1857,' a decree of judicial 
 separation entitled her to carry on a separate trade as a feme 
 sole ; so, too, an order protecting her earnings under the Divorce 
 Acts, 1857,^ and 1858,° and the Matrimonial Causes Act, 1878.° 
 The Married Women's Property Act, 1870,' increased the 
 protection of her separate trade earnings ; and the Married 
 Women's Property Act, 1882,^ entitles her to hold as her separate 
 property everything acquired by her trading carried on separately 
 from her husband. 
 
 Separate trading does not necessarily imply that the wife is 
 living apart from the husband, but that he does not intermeddle 
 with her business;" but where the husband and wife are living 
 together, and the wife carries on the business, the presumption, 
 it is submitted, will still be that she is the agent of her husband 
 in reference thereto.'" But, as before the Act of 1882, a married 
 woman may carry on to her separate use any trade or business 
 which her husband, either expressly or impliedly agrees she 
 shall carry on after her marriage on her separate account as she 
 carried it on before (whether his agreement be proved from his 
 express words or from his acquiescence for a long period) though 
 all the while they are living together." Whether the wife carries 
 on the trade apart from her husband, or really under his direction, 
 is a question to be determined in each case by the evidence.'^ 
 Where the husband is really the master of the business, holds 
 himself out as the proprietor, and renders himself liable as 
 
 ^ Ex parte Franks, 7 Biiig. 762. 
 
 2 Ex parte Charrington, 1 Atk. 206; Lavie v. Phillips, 3 Burr. 1782. 
 2 20 & 21 Vict. c. 85, as. 25, 26. * Ibid. s. 21. 
 
 ^ 21 & 22 Vict. c. 108, s. 6. 
 
 ^41 Vict. c. 19, ». 4. This is now repealed by 58 & 59 Vict. c. 39, but practically 
 re-enacted by it. 
 
 !■ 33 & 34 Vict. 0. 93, s. I. ^ 45 & 46 Vict. 0. 75, s. 2. 
 
 ' Ashworth v. Outran), 5 Ch. D. 923. 
 10 Phillipson v. Hayter, L. E. 6 C. P. 38. 
 
 " Ashworth v. Outram (uhi sup.) ; Be Dearmer, James v. Dearmer, 53 L. T. 905. 
 12 Ashworth v. Outram, (uhi sup.) ; see-Whittaker v. WhittaJcer, 21 Ch. D. 657. 
 
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318 HUSBAND AND WIFE. [paet i. 
 
 principal to third parties, in such a case the wife's trading could 
 not be said to be separate.' 
 Married Although by virtue of the above statutes a married woman 
 
 liability to be ^^^ considerable power over the disposition of her property, 
 madebankrupt. g^^^ greater facilities for acquiring property, it was not until 
 the Married Women's Property Act, 1882, that she was 
 rendered liable to the bankruptcy law in respect of her con- 
 tracts. The Married Women's Property Act, 1870, conferred 
 no further contractual powers upon her than she possessed 
 before,^ and notwithstanding a doubt expressed to the con- 
 trary,' it was clearly laid down that a married woman was not 
 liable to the bankruptcy law, even though she had separate 
 estate. In the case of Ux parte Jones, Be Grissel,* James, 
 L.J., said: "A married woman who contracts in that way 
 (that is, so as to bind her separate estate) is not a debtor in any 
 sense of the word, and she not being a debtor the whole foundation 
 of the appellant's case fails. A debtor's summons is a summons 
 against a debtor. The respondent is not a debtor, and therefore 
 thei'e was no legal authority to issue a debtor's summons against 
 her, and no proceedings in bankruptcy founded upon it could be 
 effectually taken." And Ootcon, L.J., said : " It is said that a 
 married woman is a debtor, because she is liable to have proceed- 
 ings taken against her to obtain satisfaction of such a debt as 
 this out of her separate estate. But that involves a fallacy. A 
 debtor must be a person who can be sued personally for a debt, 
 and who is liable to all the consequences of a personal judgment. 
 But that is not at all the position of a married woman ; even 
 though she has separate estate, proceedings cannot be taken 
 against her personally to enforce payment of a debt." But her 
 trade earnings under this Act became upon her death equitable 
 assets and divisible pari passu among her creditors.* When she 
 carried on a trade on her separate account apart from and free 
 from the interference of her husband, she was in law deemed to 
 be his agent, or the agent of the trustees of any ante-nuptial or 
 post-nuptial settlement which allowed her to do so ; and in 
 neither case was she liable to be made bankrupt ; while if the 
 trade assets were her separate property, the trade creditors had 
 no remedy either against her husband or her trustees." Though 
 formerly she could not be made a bankrupt, yet an order under 
 
 ' Laporte v. Costick, 23 W. E., 133. 
 
 ^ Per Jessel, M.R., in Howard v. Bank of England, L. E. 19 Eq. 295. 
 
 ^ Per Mellisb, L.J., in Ex parte Holland, Be Heneage, L. E. 9 Ch. App. 307. 
 
 4 12 Cli. Div. 484. 
 
 ' Be Poole, Thompson v. Bennett, 5 Cli.'D. 739. 
 
 ^ 2 Rop. H. & W. 164 et seq. 
 
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CHAP. XIV.] OONTEACTS BY MARRIED WOMEN. 319 
 
 the Debtors Act' might have been made on her (though her 
 property was settled to her separate use without power of 
 anticipation) for payment of a judgment debt by instalments 
 without any proof of her means. ^ By the Married Women's m. w. p. Act, 
 Property Act, 1882/ it is provided that " every married woman ^^^^' 
 carrying on a trade separately from her husband shall, in respect 
 of her separate property, be subject to the bankruptcy laws in 
 the same way as if she were a fe'nw sole." 
 
 A married woman will now in respect of her separate property Trade must be 
 be liable to be made a bankrupt, but her personal liability is apIrTfrom 
 rather proprietary than personal. But it is only in respect of iisband. 
 her trading that she is liable to the bankruptcy law, and if she 
 does not carry on a separate trade, she cannot be made a bank- 
 rupt ;■* nor can she be so made where the business is under the 
 partial control of her husband ;^ bufc even where she does carry on 
 a separate trade she is not amenable to all the provisions of the 
 bankruptcy law ; thus, a bankruptcy notice under sect. 4, sub- 
 sect. I. (g) of the Bankruptcy Act, 1883, cannot be issued against a 
 married woman though carrying on a separate trade, as it directs 
 the debtor personally to pay the sum recovered by the creditor in 
 the action. ° But if she does any act in respect of her separate 
 trading, which, if done by a man or a single woman, would render 
 him or her liable to the penal provisions of the Debtors' Act, 
 1869, she will be equally liable to them, as, for instance, if she 
 commits any of the bankruptcy offences enumerated in sections 
 II to 1 3 of that Act. 
 
 Since a married woman trader can now be made a bankrupt, Eestraint upon 
 and section 19 of the Act provides that " no settlement or agree- of'he?own'' 
 ment for a settlement shall have any greater foi'ce or validity property iu 
 
 •' ° '' settlement of 
 
 against creditors of such woman than a like settlement or agree- married 
 
 ment for a settlement made or entered into by a man would have ineffectual 
 
 against his creditors," ib follows that any settlement of her pro- ^f*^^ '^® 
 
 perty by a trader either before or after marriage would contra- laws. 
 
 vene the provisions of section 47 of the Bankruptcy Act, 1883,' 
 
 and be void against her trustee in bankruptcy. Any attempt to 
 
 restrain herself from anticipating her property will be ineffectual. 
 
 A married woman who trades separately from her husband and 
 
 has been adjudicated a bankrupt cannot be compelled to execute 
 
 a deed exercising a general power of appointment by deed or 
 
 will in favour of her trustee in bankruptcy, for a general power 
 
 1 32 & 33 Vict. c. 62. ^ Dillon v. Cunningharn, L. R. 8 Ex. 23. 
 
 ' 45 & 46 Vict. c. 75, 8. I sub-sect. 5. 
 
 * Be Gardiner, Ex parte Couhon, 20 Q. B. D. 249. 
 
 ^ Se Eelsby, Ex parte Selsby, 63 L. J. Q. B. 261. 
 
 ^ lie Lynes, Ex parte Lester & Co., [1893] 2 Q. B., 113. 
 
 ' 46 & 47 Vict. c. 52. 
 
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320 HUSBAND AND WIFE. [part i. 
 
 of appointment by deed or will of which she is the donee but 
 which has not been exercised by her is not separate property 
 within the meaning of sect, i , sub-sect. 5 of the Married Women's 
 Property Act, 1882; though if she were a /erne sole it might 
 become " property " under section 44 (ii.) of the Bankruptcy Act, 
 1883 ; but section 152^ of that Act safeguards the provisions of 
 the Married Women's Property Act, 1882.^ Her life interest, 
 however, in property which is settled on her without restraint 
 on anticipation passes to her trustee, as the claim of the trustee 
 in such a case is not an interfering with or affecting the 
 settlement within the meaning of section 19 of the Married 
 Women's Property Act, 1882.' 
 
 It seems uncertain as regards married women who, as separate 
 traders, are affected by the Act of 1882, whether the existence of 
 separate property is or is not necessary at the time when their 
 trading liabilities were incurred in respect of which an adjudica- 
 tion in bankruptcy has been made ; in one case membership of a 
 trading firm of a married woman was held to be a presumption 
 of the existence of separate estate.* As regards her trading 
 contracts and liabilities entered into since the passing of the 
 Married Women's Property Act, 1893,* ^^^ existence of specific 
 separate estate is not necessary. 
 
 This quasi-personal liability of a married woman limited to her 
 separate trading is an instance of the very tentative method in 
 which alterations in the law are usually effected by English 
 legislation. In some respects she is made complete mistress of 
 her property, save such as she is validly restrained from alienating; 
 she is endowed with full powers of contracting in respect of that 
 property, and of disposing of it unfettered by any control or 
 interference of her husband. She may be sued alone in respect 
 of it. But she is not to be made a bankrupt, except she happens 
 to carry on a trade separately from him. The distinction between 
 traders and non-traders has been abolished among men, and there 
 does not, in the face of the considerable alteration in the status of 
 the married woman effected by the Act of 1882, seem to be any 
 valid ground for preserving it in the case of married women. 
 The old common law theory of the unity of husband and wife is 
 a thing of the past ; bat the equity creature and fiction — the 
 separate estate — is still largely recognised. 
 
 1 "Nothing in this Act shall affect the provisions of the Married Women's Property 
 Act, 1882." 
 
 '^ Be Armstrong, Ex parte GihArist, 17 Q. B. D. 521. 
 
 ' i?e Armstrong, Ex parte Boyd, 21 Q. B. D. 264. 
 
 ^ Eddowes v. Argentine Loan and Mercantile Agency Co., 62 L. T. 602. 
 
 ^ 56 & 57 Vict. c. 63, s. I. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 321 
 
 2. Capacity to effect Policies of Insiwance on own Life and that 
 of Susband. — Before the Married Women's Property Act, 1870, 
 but few policies of insurance could have been effected by married 
 women on their own lives or those of their husbands, except as 
 agents for their husbands, because of their incapacity to make 
 binding contracts. If a wife insured her own life with the con- 
 sent of her husband, the right to the policy was a chose in action 
 of the wife, which became her husband's property.' 
 
 In order to effect a valid insurance upon the life of another, insurer must 
 the insurer must have some interest in the life of the insured.' uSeresTSlife 
 A married woman was presumed to have an insurable interest in °^ ™sured. 
 her husband's life f while the husband, on the contrary, was 
 bound to show that he had such insurable interest." The Married 
 Women's Property Act, 1870,° recognised this want of insurable 
 interest on the part of the husband in his wife's life, for while it 
 gave him the larger power of effecting a policy for the separate 
 use of his wife and the benefit of his children, it enabled him only 
 to do so on his own life. The Married Women's Property Act, 
 1882," recognizes his want of insurable interest in his wife's life; 
 but since husband and wife are now practically placed on the like 
 footing as regards their mutual rights in each other's property, 
 the capacity for insuring his wife's life ought by analogy to be 
 extended to the husband. 
 
 A husband may effect a policy of insurance on his own life for Policy effected 
 the benefit of (i) his wife; (2) or of his children; (3) or of his ^f,'j,"^^^Sf,_°" 
 wife and children ; (4) or any of them.' The husband had this 
 power under section 10 of the Married Women's Property Act, 
 1870, and the terms of the two sections on this point are sub- 
 stantially the same. 
 
 Under the Act of 1882,^ a married woman may effect a policy Policy effected 
 npon her own life or the life of her husband for her separate use; o^iife ot^*"^ 
 and the same and all benefit thereof shall enure accordingly. **' °* , 
 She may effect a policy (i) on her own life, or on her husband's, 
 for her separate use ; (2) or on her own life, and expressed to be 
 for the benefit of her (a) husband, or (b) her children, or (c) husband 
 and children, or (d) any of them. But she cannot insure her hus- 
 band's life in his favour, or in that of their children. The effect of interests 
 taking out a policy which is expressed to be for the benefit of f^ceVt^^ °° 
 the parties therein named is to constitute a declaration of anPo^'^y- 
 executed trust on behalf of such parties, who will take according 
 
 '■ See Be Watson, & parte Merrett, 7 Morr. Bank. Eep. 65. 
 
 2 14 Geo. III. 0. 48. 
 
 2 Beed v. The Exchange Association Co., Peake, Add. Gas. 70. 
 
 •* Hanson v. BlackweU, 4 Ha. 434. ^ 33 & 34 V^iot. c. 93, s. 10. 
 
 « 45 & 46 Vict. c. 75, B. II. ^ Ihid. 8 jbid. 
 
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;522 
 
 HUSBAND AND WIFE. 
 
 [PAET 
 
 Interests not 
 expressed. 
 
 Policy forms 
 no part of the 
 estate of the 
 insured as long 
 as any object 
 of the trust 
 remains unper- 
 formed. 
 
 Appointment 
 of trustees : 
 by the 
 insured ; 
 
 to their interests therein expressed. But where the policy 
 effected by the one spouse, whether under the Act of 1870 or of 
 1 882, is declared to be for the benefit of the other spouse and the 
 children, but the interests of the respective parties are not other- 
 wise declared, it has been held that on the death of the settlor 
 the surviving spouse and children take as joint tenants." 
 
 The trust created is a trust in favour of the objects named in 
 the policy, and the moneys payable under any such policy shall 
 not, so long as any object of the trust remains unperformed, form 
 part of the estate of the insured, or be subject to his or her debts. 
 But if the trust cannot be performed because there is no object 
 for it to operate upon or as being contrary to public policy, then 
 a resulting trust is created in favour of the settlor's estate.* 
 Thus, where a husband who effected an insurance policy on his 
 own life for the benefit of his wife, was murdered by her, the 
 trust created by the policy in her favour under this section having 
 become incapable of being performed by reason of her crime, it 
 was held that the insurance money formed part of the estate of 
 the insured.' But as between the legal representatives of the 
 settlor and the insurers no question of public policy arose.* If it 
 is proved that the policy was effected and the premiums paid with 
 intent to defraud the creditors of the insured, the creditors will be 
 entitled to receive out of the moneys payable under the policy a 
 sum eqnal to the premiums so paid;* that is to say, the trustee in 
 bankruptcy of' the settlor will have no interest in the policy 
 beyond the amount of the premiums fraudulently paid. 
 
 The insured may by the policy, or by any memorandum under 
 his or her hand, appoint a trustee or trustees of the moneys 
 payable under the policy, and from to time appoint a new trustee 
 or new trustees thereof, and may make provision for the appoint- 
 ment of a new trustee or new trustees thereof, and for the 
 investment of the moneys payable under any such policy. In 
 default of any such appointment of a trustee, such policy, immedi- 
 ately on its being effected, shall invest in the insured and his or 
 
 1 Be Seyton, Seyton v. Satterthwaite, 34 Ch. D. 511 ; Se Davies' Policy Trusts, 
 [1892] I Ch. 90. In Be Seyton, North, J. (following the decision of Hatherley, L. C, 
 in Nevnll v. jSTewill, L. E. 7 Ch. 253), dissented irom the ruling of Chitty, J., in Be 
 Adams' Policy Trusts, 23 Ch. D. 525, in which the learned judge expressed his 
 opinion that the surviving spouse would take a life interest in the policy tiind, and the 
 children a joint tenancy in remainder. He also explained the judgment of Malms, 
 V -C on the second application to the Court in the case of Be Mellor s Policy Trusts 
 (7'Ch D. 200) who had held that such words in a policy amounted to a settlement on 
 the surviving spouse and children by creating vested interests as joint tenants in such 
 of them as were living at the settlor's death. In Be Davies' Policy Trusts, Chitty, J., 
 followed the decision in iJe 5ei/eore. ,^.^^ .^. p„, rvu,- 
 = Cleaver v. Mutual Beserve Fund Life Association, [1892] i y. a 147- 
 3 lUd * Ibid. ^ Sect. n. See Holt\. Everall, 2 Oh. D. 266. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 323 
 
 her personal legal representatives in trust for the purposes 
 
 aforesaid; but the nomination of a payee does not constitute the 
 
 payee a trustee.' If at the time of the death of the insured, or at 
 
 any time afterwards, there shall be no trustee, or it shall be 
 
 expedient to appoint a new trustee or new trustees, a trustee or 
 
 trustees, or a new trustee or new trustees, may be appointed by 
 
 any Court having jurisdiction under the provisions of the Trustee by the court. 
 
 Act, 1850, or the Acts amending and extending the same. The 
 
 receipt of a trustee or trustees duly appointed, or in default of 
 
 any such appointment, or in default of notice to the insurance 
 
 office, the receipt of the legal personal representative of the insured 
 
 shall be a discharge to the office for the sum secured by the 
 
 policy, or for the value thereof, in whole or part.^ This latter 
 
 provision, which is new, would seem to enable the trustee to 
 
 realize, if necessary, the surrender value of the policy, which 
 
 formerly he could not do. The application to the Court for the 
 
 appointment of a trustee should be made by petition,' or, if 
 
 under the provisions of the Conveyancing Act, 1 8 8 1 , by summons 
 
 at chambers. Where the interests of infants are involved 
 
 and the appointment of trustees is necessary, the Court acting 
 
 under its general jurisdiction will not appoint less than two 
 
 trustees.'' 
 
 3. To he a Partner. — The capacity or incapacity of a married To be a 
 woman to be a partner is only one branch out of many of the ^* 
 main question whether she had or had not the capacity to 
 contract. At common law a married woman not having any Incapacity at 
 contractual power of her own could not be a partner, except as 
 her husband's agent ; and if she were de facto a partner, it was 
 her husband and not herself who in law was treated as the real 
 partner.^ But in equity a married woman who was possessed of Capacity in 
 separate estate, and was trading in or belonging to a partnership, ®1" ^' 
 was treated as a partner, and so far as her separate estate was 
 concerned was liable for the partnership debts.' 
 
 Under the Married Women's Property Act, 1882, her capacity Married 
 for entering into partnership not only with third persons, but with ^"^^"g a^'^'"^" 
 her husband is recognized, for all her property of whatsoever descrip- partner both 
 
 1 See Fry, L.J., in Cleaver y. Mutual Beserve Fund Life Association (ubi sup.), gjraneers 
 
 2 Sect. II. ^ ' 
 2 See Be MeUor's Policy Trusts, 6 Oh. D.127, 7 Ch. D. 200. Where there is no trustee 
 
 of a policy effected under the Act of 1870, the petition for the appointment of such trustee 
 should be entitled both in the matter of the Trustee Act and in the matter of the Act 
 of 1882. Se Soutar's Policy Trusts, 26 Ch. D. 236. 
 
 ■* -Be Howson's Policy Trusts, W. N. 1885, 213; Schultze v. SchuUze, 56 L. J. 
 Ch. 3S6. 
 
 •5 Burlinson's Case, 3 De 6. M. & G. 18. 
 
 ' Lind. Part. 6 ; Mrs. Matheioman's Case, L. E. 3 Bq. 781. 
 
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32-1 HUSBAND AND WIPE. [pakt i. 
 
 tion is lier separate property, which, unless she is legally restrained 
 from dealing with it, will be answerable for any debts she may con- 
 tract. If a married wooaan was under the former law a member of 
 or partner in a trading firm, she was presumed to have separate 
 property necessary to give validity to her contracts.' But since 
 the Married Women's Property Act, 1893,' it is immaterial whether 
 she actually possesses property of her own or not ; for under that 
 Act the existence of separate property is not a condition precedent 
 to the validity of her contracts. Her position when she has 
 advanced money to her husband for the purposes of his trade 
 or otherwise without taking security has been previously 
 discussed.' 
 
 Married As an incident of her capacity to be a partner, a married 
 
 woman as a iici- iiit- 
 
 shareholder, woman was Capable 01 being a shareholder m a corporation or 
 
 company, if the charter of incorporation or deed of settlement did 
 
 not exclude her ; and in equity she could contract to take shares 
 
 so as to bind her separate property.* Under the Married 
 
 Women's Property Act, 1870,* a married woman who was 
 
 entitled to fully paid-up shares to her separate use, could compel 
 
 the company by mandamus to register her legal title in respect 
 
 statutory of them.'' But under that Act, the shares held by a married 
 
 limitation as to •' ,.,.,. 
 
 fuUypaidup woman must have been luUy paid up, without any liability 
 
 longer applies, attaching to them.'' By virtue of the Act of 1882° she can be a 
 shareholder, whether solely or jointly, of partly paid-up as well as 
 fully paid-up shares, and she can compel registration of either 
 class of investments.' But even now she cannot compel any 
 corporation or joint-stock company to admit her as a holder of 
 any shares or stock to which any liability may be incident, 
 contrary to the provisions of any Act of Parliament, charter, 
 bye-law, articles of association, or deed of settlement regulating 
 such corporation or company.'" Formerly, where her shares were 
 
 Eight to vote, jjot held to her separate use, she could not vote in respect of 
 them ; but where they were held to her separate use, she was 
 entitled to do so, and her husband's disapproval did not render 
 her vote invalid." It is now clear that a married woman 
 will be entitled to vote in respect of shares which she holds 
 independently of her husband, who will in no way be able to 
 control her right. 
 
 Tobeatrustee. 4. To he a Trustee. — A married woman, under the old state of 
 
 1 Eddowes v. Argent'me Loan and Mercantile Agency Co., 62 L. T. 602. 
 
 2 56 & 57 Vict. c. 63. ^ See ante, pp. 297 et seq. 
 
 ^ Mrs. Mathewman's Case, L. E. 3 Eq. 781. ^ 33 & 34 Vict. c. 93. 
 
 ^ Seg. V. Oarnatic Baitway Co., L. R. 8 Q. B. 299. ' Sects. 4, 5. 
 
 8 45 & 46 Vipt. c. 75, ss. 6, 7, 8. ^ Ibid. ss. 7, 12. 
 1° Jbid. s. 7. " Lind. Coy. 310, 311. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 325 
 
 the law, was not disqualified from being appointed a trustee ; but 
 her appointment was attended by many inconveniences, and there 
 were several reasons why she should not have been chosen. The 
 wife's personality was merged in that of her husband, and her 
 will was not always her own, and when a trust was confided to a 
 feme covert, the husband, who was answerable for her acts, exer- 
 cised no little influence. Indeed, as he was in general liable Husband's 
 for her breaches of trust, whether committed before or after formerly 
 marriage,' he was bound for his own protection to look to the i^ecessai-y. 
 manner in which she discharged the office ; accordingly, she was 
 not allowed to execute the trust without his concurrence.^ A 
 disclaimer, therefore, by the husband, operated as a disclaimer of 
 the trust by the wife. Again, a married woman could not execute 
 the proper assurances for conveying the legal interest of the trust 
 property (if realty), without obtaining the consent of her hus- 
 band, and going through the expensive and onerous process 
 necessitated by the Fines and Recoveries Act ; ^ she could not 
 by herself convey real estate devised to her merely in trust for 
 sale." But if she obtained an order from the Court, under 
 section 91 of the last Act, dispensing with her husband's con- 
 currence, she could execute a conveyance of the trust property 
 without acknowledging the deed.* So, too, the payment of the 
 purchase money required the joint receipt of husband and wife." 
 If a married woman obtained a protection order, she was enabled Married 
 by section 7 of 21 & 22 Vict. c. 108, to exercise the office of now accept ths 
 trustee as though she were single. But now she may be appointed [^"^'onaent'rf 
 sole trustee, or jointly with others, and can accept the trust the husband, 
 without first obtaining the consent of her husband,^ and she 
 has all the rights, duties, and liabilities of an ordinary trustee,^ 
 and in consequence her husband is in no way liable for her 
 breaches of trust, if he do not intermeddle with the trust.' She 
 can now receive or transfer the various classes of property 
 enumerated below,'" to which she is solely or jointly entitled 
 
 1 Palmer v. Wakefield, 3 Beav. 227. 
 
 ■' Lewin on Trusts, p. 31, and the cases there cited. ^ 3 & 4 Wm. IV. c. 74. ' 
 
 * Avery v. Griffin, L. R. 6 Eq. 606. Goodchild v. Dougal, 3 Ch. D. 650. 
 
 ' See brummond v. Tracy, Johns. 611. Mr. Lewin, in his book on Trusts, p. 33, 
 recommends that such purchase money ought not to be paid to the husband, who is a 
 stranger to the trust, nor to the wife, for payment to her is payment to the husband, 
 but that it should be paid into some responsible bank in the joint names of the 
 trustees (excluding the husband), and to take a written receipt from the trustees, 
 to be also signed by the husband as sanctioning the receipt by the wife. But this 
 would not be necessary in the case of trusts accepted by married women after Jan. i, 1883. 
 
 '45 & 46 Vict. 0. 75, ss. I (sub-s. 2), 8, and 24, which latter provides that the word 
 contract in this Act shall include the acceptance of any trust." 
 
 8 Ibid. s. 18. _ 9 Ibid. s. 24. 
 
 ^^ (i) Deposits in the Post Office, or other savings bank, or any bank. (2) Annuities 
 
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326 
 
 HUSBAND AND WIFE. 
 
 [part r. 
 
 Is husband's 
 consent 
 necessary to 
 alienation by 
 ■wife of the 
 legal estate ? 
 
 as trustee, without the concurrence of her husband/ which before 
 the passing of this Act she could not do.^ But if the shares, 
 stock, or other investment were standing or placed in the 
 joint names of herself or her husband, she would not acquire 
 the right to deal with them without his concurrence.' Where, 
 then, personal property is invested in the name -of a married 
 woman, solely or jointly with another, not her husband, 
 she acquires the legal estate in it, and can, so far as her 
 husband is concerned, dispose of it as a feme sole without his 
 concurrence. 
 
 Where a married woman is a " bare trustee " * of freehold 
 or copyhold land she may convey or surrender the same as if she 
 were a feme sole^ that is, without the concurrence of her husband, 
 or acknowledgment under the Pines and Eecoveries Act, and she is 
 entitled to do so even where she has a beneficial interest in the pro- 
 ceeds of the sale." But the question may be raised whether, if a 
 married woman is neither beneficially entitled to real estate for her 
 separate use nor a bare trustee of it, but is a trustee with active 
 duties to perform in respect of it, under the Married Women's Pro- 
 perty Act, 1882, the husband's concurrence in the transfer and her 
 acknowledgment under the Fines and Eecoveries Act, are still 
 requisite. The doubt arises on the language of section 18 of the 
 Act of 1882, which gives a married woman trustee power to transfer 
 certain specified descriptions of personal property without her hus- 
 band's intervention, as if she were &feme sole. Sect, i, sub-sect, i, 
 provides that a married woman shall, in accordance with the pro- 
 visions of the Act, be capable of disposing by will or otherwise 
 of any real property as her separate property in the same manner 
 as if she were a feme sole. The words " or otherwise " would 
 seem large enough to give her complete disposing power over 
 every kind of property, real and personal ; but if the governing 
 words of the section are " as her separate property," then there 
 is nothing in the Act that confers upon her the power to transfer 
 real property which she holds in a representative capacity other- 
 wise than as a bare trustee, without complying with the former 
 
 granted by the CommissioDers for the Eeduotion of the National Debt, or any other 
 person. (3) Investments in the public stocks and funds. (4) Investments transferable 
 in the books of a bank. (5) Any interest in a company, corporation, or public body. 
 (6) Any interest in any society. Sect. 18. 
 
 1 Ibid. s. 18. ^ Howard v. The Bank of England, L. E. 19 Eq. 295. 
 
 3 Effect of sects. 6-9 of 45 & 46 Vict. c. 75. 
 
 * For what is a "bare trustee" see Christie v. Ovington, 1 Ch. D. 279 ; Lygaght 
 V. Edxoards, 2 Ch. D. 499 ; Morgan v. Swansea Urban Sanitary Autlwrity, 9 Ch. D. 
 582. 
 
 " 56 & 57 Vict. c. 53, s. 16. 
 
 ^ Xe Doewra, Docwra v. Faith, 29 Ch. D. 693. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 327 
 
 common law or statutory requirements. If so, the peculiar and 
 unnecessary drafting of section i8 will have limited the power 
 given to the married woman to deal with every kind of property, 
 including trust property, apart from the control and interference 
 of her husband.-^ If it should be held that section i, sub-section i, 
 and sections 2 and 5 do not apply to real property held by a 
 married woman in a representative capacity, many of the former 
 inconveniences of making her a trustee will survive, and the 
 following curious anomalies will be presented.^ If beneficially 
 entitled to realty she can dispose of it without her husband's 
 concurrence, though his interests in it may be seriously modified ; 
 but if entitled to it in a representative capacity she cannot 
 transfer the legal estate without his consent, or going through 
 the cumbersome process under 3 & 4 Wm. IV. c. 74 ; and while 
 she can engage in the more important task of suing in respect of 
 her trust estate, she cannot perform the far more simple opera- 
 tion of conveying the legal estate without his leave ; and while 
 she is liable for her breaches of trust, her husband is exonerated 
 from all liability in respect of them, unless he intermeddle with 
 the trust ; and lastly, she cannot transfer the legal property in 
 personal property held in trust by her without his concurrence, 
 except it fall within one or other of the classes specified in 
 section 18. 
 
 A married woman is now solely liable to the extent of her Liability of 
 separate property for the breaches of trust committed by her during "o^en. 
 coverture, whether she has accepted the office of trustee before or 
 a,fter marriage, unless her husband has intermeddled with the 
 trust, in which case he becomes jointly liable with her.^ A difier- 
 ence in the husband's favour is to be noticed between his liability 
 for his wife's torts (including breaches of trust) in her repre- 
 sentative capacity, and her torts in her personal capacity ; for the 
 former he is only liable when he has himself intermeddled and 
 participated in them ; while for torts committed by her in a 
 non-representative capacity his common law liability is untouched 
 by the Act.'' On the death of the married woman her sepa- 
 rate estate will continue to be responsible for her breaches of 
 trust. 
 
 5 , Tole Executrix or Administratrix. — It has been long recog- To be 
 nized that a married woman had the capacity to be appointed admimstratrii. 
 and to take upon herself the office of executrix or administratrix. 
 
 1 See sects, i, sub-s. 1 and 24. 
 
 2- Wolstenholme & Brinton (Conv. & Sett. Land Acts, 6th edit. p. il)_ are of 
 opinion that the manied woman in respect of such trust estates is in the position of a 
 feme sole. Bu t the point is not clear. 
 
 ^ Sect 24. '' Seroha v. Kattenberg, 17 Q. B. D. 177. 
 
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S28 HUSBAND AND WIFE. [pakt i. 
 
 Husband's It was, however, necessary for her first to obtain her husband's 
 meriy neces- Consent, for Without it she could not take up the office of execu- 
 of'Jroba'te'o™ ^^^^ ^^ obtaining letters of probate/ because she could do no 
 adminiairation act which might prove preiudicial to the husband without his 
 
 taken out by . 2 -5 n i , , „ , . . 
 
 her; consent; neitner could she take out letters or administration 
 
 to her intestate next of kin, because the husband was alone 
 capable of entering into the administration bond, though the 
 grant of the letters was to herself alone, and not to herself and 
 
 wherrihe had ^"^^1^^^^ jointly.^ But where a married woman had obtained a 
 
 been judicially decree of judicial separation, or a protection order, she was 
 
 haTobtained entitled to letters of probate or administration without the con- 
 
 order*^"''™ currence of her husband. 
 
 Powers of the As incident to his title to administer in his wife's right for his 
 
 "^ ^° • own safety, he had a power of disposition over the personal estate 
 
 vested in his wife as executrix or administratrix ; ■* thus, he 
 
 could release debts due to the estate of the testator or intestate.* 
 
 Liabilities of jf the husband dissented from his wife accepting the ofBce, he 
 
 the husband. ,,, ., ■„■,-, ^ or. 
 
 was not affected by her acts ; but if she assumed the office 
 with his consent, and she wasted the goods of her testator or 
 intestate, he was liable for the devastavits ' committed by her in 
 the execution of her office. If the devastavit was coriimitted 
 before marriage his liability was coterminous with the coverture; 
 if committed during marriage, he remained liable though he sur- 
 vived his wife, for his assent to her tort was presumed.* The 
 assets received, but not disposed of, by the wife became the 
 husband's, though he held them as trustee for the persons (if any) 
 for whose benefit they were intended.^ 
 Powers of the It has been seen that the assent of the husband was necessary 
 ' ' to validate the gifts and grants of a feme covert executrix or 
 administratrix, for they might have tended to his prejudice, and 
 without his assent her disposition of the goods of the deceased 
 was void.'" She might have made a will of the outstanding 
 
 1 Gierke v. Gierke, 6 P. D. 10. ^ i "Wms. Exors. 185. 
 
 ' I Wms. Exors. 834, In The Goods of Warren, L. E. i P. & D. 538. 
 
 '' Arnold v. Bidgood, Cro. Jac. 318 ; Thntstout v. Coppin, 3 Wils. 377. 
 
 i5 I Eop. H. & W. 188. 
 
 ^ Temlierton v. Chapman, 7 EI. & B. 2io ; S. C. in error El. Bl. & El. 1056. 
 Probate granted without bis assent, migbt have been revoked with his consent, Se 
 Joanna Wilkinson, deceased, 3 Phill. 96. 
 
 ' A "devastavit" has been defined as a mismanagement of the estate and effects 
 of the deceased, in squandering and misapplying the assets contrary to the duty 
 imposed on them, for which executors or administrators shall answer out of their own 
 pockets, as far as they had, or might have had, assets of the deceased. Bac. Abr. 
 Exors. L. I. 
 
 8 Adair v. Shaw, i Sch. & Lef. 243. ^ Hodsden v. Lloyd, 2 Bro. C. 0. 534. 
 
 ^^ Derhighire v. Home, 5 De G. & Sm. 702, in which case an assignment by an 
 administratrix who was married to an infant was a nullity ; and in Pemherton v. 
 Chapman {uhi sup.) it was held that payment by a debtor of a testator and delivery 
 to a feme covert executrix were valid against her co-executor, where the payment and 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 320 
 
 personal property to which she was entitled in her representative 
 capacity without the consent of her husband, for he had no bene- 
 ficial interest in such assets of his wife.' As the rules of the 
 civil law prevailed in the old ecclesiastical courts, a married 
 woman could maintain or defend a suit without her husband's 
 assent, and she could even raise an action against him.^ But 
 as a matter of practice the husband was required to be joined 
 with his wife in executing the proxy in order that there might 
 be some security for costs.' The husband could not compel 
 his wife to take up the office, and if he administered in her right 
 against her consent, though she was bound during his lifetime, 
 and could not avoid the trust, yet after his death she might 
 refuse, if she had not intermeddled with the administration.'' 
 
 It is now clearly settled law that the responsibility of a feme Liabilities of 
 , .. T''j,j'T ij. 'i 1 the execiitrix, 
 
 covert executrix or admmistratrix does not termmate on her ^o. 
 
 husband's death, but that she will be liable to creditors, legatees, 
 
 or next-of-kin for devastavits committed by her during coverture.^ 
 
 A considerable alteration in this branch of the law has been Alteration 
 
 introduced by the Married Women's Property Act, 1882. Sec- m.^w. p. Act, 
 
 tion I, sub-section 2, enacts that "a married woman shall be ^^^''• 
 
 capable of entering into and rendering herself liable in respect of 
 
 and to the extent of her separate property on any contract, and of 
 
 suing and being sued, either in contract, or in tort, or otherwise, 
 
 in all respects as if she were a feme sole." Section 18: "A 
 
 married woman who is an executrix or administratrix alone or 
 
 jointly with any other person or persons of the estate of any 
 
 deceased person .... may sue or be sued, and may transfer or 
 
 join in transferring " the various classes of property mentioned in 
 
 the section as if she were a feme sole. Section 24 : " The word Contract in- 
 
 ,.,., iii-iTi !■ ,1 eludes aocept- 
 
 ' contract m this Act shall include the acceptance 01 ... . the anoe of the 
 office of executrix or administratrix, and the provisions of this Act eSoutrL &c. 
 as to liabilities of married women shall extend to all liabilities by 
 reason of any devastavit committed by any married woman being 
 .... executrix or administratrix either before or after her 
 marriage, and her husband shall not be liable to such liabilities 
 unless he has acted or intermeddled in the .... administration." 
 The joint effect of these sections is to enable a married woman to Wife can 
 
 accept office 
 without hus- 
 delivery were made bond fide at the request of the executrix, without knowledge by the band's consent, 
 party paying and delivering of the dissent of the husband, though with knowledge that 
 she was a. feme covert. 
 
 ^ Scammell v. Wilkinson, 2 East, 552 ; S. C. Stevens v, Bagwell, 15 Ves. 139. 
 
 2 Preston t. Preston, Milw. 608. ^ Arbery v. Aslie, i Hag. Eccl. Eep. 214. 
 
 ^ Wanhford v. Wankford, i Salk. 306. 
 
 ' Soady v. Twnibull, L. E. i Cb. App, 494. But see i Rop. H. & W. 196, for the 
 distinction to be drawn where the wife is executrix or administratrix before the marriage 
 and where she becomes so afterwards. 
 
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330 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Husband free 
 from liability 
 for ante- 
 nuptial and 
 post-nuptial 
 devastavits 
 unless he 
 intermeddle. 
 
 To sue and be 
 £ued alone. 
 
 In contract. 
 At common 
 law. 
 
 Incapacity to 
 sue or be sued, 
 
 Exceptions. 
 
 accept the oiEce of executrix or administratrix without the con- 
 sent of her husband ; she can now by herself (that is, apart from 
 her husband) take out letters of probate, obtain a grant of letters 
 of administration, and execute the administration bond.' Her 
 husband need not be joined with her in any suit, nor will she be 
 required to give security fot costs in a suit to which she is party. 
 The husband has no longer the right of withholding his consent 
 to his wife's accepting the office, or of practically compelling her 
 to assume it, or of interfering with the administration of the 
 effects of the deceased person whom she represents. Thus, if she 
 refuse to take upon herself the office, her husband will not be 
 permitted to take out letters of administration in her stead,^ 
 or accept the office in her name. The wife is in the position 
 of a single woman so far as concerns the administration of the 
 deceased's effects, and is no wise affected by her coverture. In 
 return for being deprived of the control of his wife's administra- 
 tion, he is freed from liability for her devastavits, whether com- 
 mitted before or during coverture ; her acts in the matter are to 
 him as the acts of a stranger ; but if he interfere his liability will 
 be proportionate to his interference. The joint and several 
 liability of husband and wife for their devastavits has been dis- 
 cussed elsewhere.^ 
 
 6. To sue and le sued alone. — In this section the capacities 
 and incapacities of married women to sue and be sued in contract 
 and in tort will be but shortly noticed ; the practice is treated of 
 in a separate chapter." 
 
 At common law a married woman's capacity to sue or be sued 
 in contract was commensurate with her capacity to contract ; and 
 in Marshall v. Button^ it was expressly decided that she could 
 neither sue nor be sued at law. She was, however, liable to 
 arrest under a capias ad satisfaciendum; but if she had no pro- 
 perty of her own she was entitled to her discharge." The 
 exigencies of society required exceptions to be made to this 
 hard-and-fast rule of incapacity; she was therefore permitted, as 
 has been seen, to sue or be sued on contracts made by her when 
 her husband was a convicted felon, undergoing a sentence of 
 punishment, or was an alien enemy and abroad ; she could also 
 sue or be sued by the custom of London, _ when, as the wife 
 of a freeman of the City, she was carrying on a separate trade 
 within the City.' 
 
 1 In The Goods of Ay res, 8. P. D. i68. 
 
 2 See Haynes v. Matthews, 34 L. T., 0. S. 60. 
 
 2 Ante, chap, xiii, pp. 273 et sea. * Post, chap. xvi. ^ 8 T. E. 547. 
 * Ivens V. Sutler, 26 L. J. Q. B. 145. ' See anie,^?. 279. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 331 
 
 In equity a married woman could sue in respect of her Capacity in 
 separate property as though she were a fmic sole, and she could ^"^"^ ^' 
 even sue her husband in respect 'of it ; so, too, she could be sued, 
 but not so as to render herself personally liable.' It was her 
 separate property that was rendered liable for her contracts^ by 
 a judgment or order of the Court binding it.' 
 
 Under certain statutes a married woman's powers in this re- statutory 
 spect have been enlarged. By the Divorce Acts * she was P°^®™' 
 enabled to sue and be sued as a feme sole when she and her 
 husband were judicially separated ; * or where she has obtained an 
 order protecting her earnings ; " or has obtained an order that she 
 should no longer cohabit with her husband after he has been 
 convicted of an aggravated assault upon her, or has been guilty 
 of persistent cruelty to her, or wilful neglect to provide reason- 
 able maintenance for her or her infant children, whom he is legally 
 liable to maintain, and by such cruelty or neglect has caused her 
 to leave and live separately and apart from him.' Under the 
 Debtors' Act' a married woman is liable to imprisonment for 
 aa ante-nuptial debt, if, having the means, she refuses to pay 
 the judgment debt,' 
 
 Under the Married Women's Property Act, 1 870,'° section 1 1, M. w. P. Act, 
 " a married woman may maintain an action in her own name for Married 
 the recovery of any wages, earnings, money, and property by this maintai^aJ- 
 Act declared to be separate property, or of any property belonging tion in her owu 
 to her before marriage, and which her husband shall, by writing recovery of her 
 under his hand, have agreed with her shall belong to her after r^e'p^^erty*" 
 marriage as her separate property ; and she shall have in her 
 own name the same remedies, both civil and criminal, against all 
 persons whomsoever for the protection and security of such wages, 
 earnings, money, and property, and of any chattels or other 
 property purchased or obtained by means thereof for her own use 
 as if such wages, earnings, moneys, chattels, and property belonged 
 to her as an unmarried woman ; and in any indictment or other 
 proceeding it shall be sufficient to allege such wages, earnings, 
 moneys, chattels, and property to her property." Under section 1 2 
 she could be sued for her ante-nuptial debts." By section 40 
 
 ^ Atwood V. Chichester, 3 Q. B. D. 722 ; Davies v. Ballenden, 46 L. T. 797. 
 ^ Johnson v. Oallagher, 30 L. J, Ch. 298. 
 
 ^ Barber v. Gregson, 49 L. J. Ex. 731 ; Bohinsoii v. Pickering, 16 Ch. D. 660. 
 ^ 20 & 21 Vict. c. 85, SB. 21-26 ; 21 & 22 Vict. c. 108, ss. 6-10. 
 ^ Norman v. VUlars, 2 Ex. D. 359. This was under 20 & 21 Vict, c. 85, ss. 21 
 and 26. 
 
 ^ Under 21 and 22 Vict. c. 108, ss. 6-9. 
 ' 58 & 59 Vict. c. 39, s. 4 repealing, 41 Vict. c. 19, s. 4. 
 ^ 32 & 33 Vict. u. 62, 0. 5. ^ Dillon v. Cunningham, L. R. 8 Ex. 23. 
 
 i» 33 & 34 Viot, c. 93. " Per Hall, V.-C, in Be Poole's Estate, 6 Ch. D. 739. 
 
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332 HUSBAND AND WIFE. [paet i. 
 
 Appointment of the Convevancmg and Law of Property Act, 1881,' a married 
 
 of an attorney i i^i • <• . t ,, .« , „ 
 
 to sue on her woman may, whether iniant or adult, as n she were a feme sole, 
 behalf. ^j ^gg^ appoint an attorney on her behalf for the purpose of 
 
 executing any deed or doing any other act which she may herself 
 execute or do ; and on any contract entered into on her behalf by 
 her attorney she can solely sue. She can thus receive by attorney 
 the income of her separate property which she is restrained from 
 Practice under anticipating.^ Except in the foregoing instances, unless the 
 Act. married woman obtained under the Judicature Act, 1875,^ the 
 
 special leave of the court or a judge, she could not sue without her 
 husband, or a next friend, withe ut giving such security for costs 
 (if any) as the court or judge might require.* Where she had 
 obtained leave to defend separately without a next friend she was 
 not required to give security for costs.* 
 M. w. p. Act, Under the Married Women's Property Act, 1882," she has 
 Full capacity complete powers of contracting both in her personal and repre- 
 sue^d alone." sentative capacity, as trustee, executrix, or administratrix.' Under 
 section i, sub-section 2, she may sue or be sued in contract in all 
 respects as if she were a fe?ne sole, and her husband need not be 
 joined with her as plaintiff, or be made a party to any action or 
 Next friend or other legal proceeding brought by her ; and whether the cause of 
 costs not action arose before or after the Act came into pperation, she need 
 require . ^^^ ^^^ ^^ next friend, or give security for costs, or obtain the 
 
 leave of the court to sue by herself alone.^ Though if she desires 
 to appeal, but has no free separate property, then she must give 
 When married security for the costs of the appeal." Where a married woman 
 naWe fornext ^hose property is subject to a restraint upon anticipation by 
 friend's costs, her next friend, brings an action not under the Married Women's 
 Property Act, 1882, which is found to be an improper one, and 
 costs are given against the next friend, she can not be ordered 
 to pay the costs out of property which is subject to the restraint, 
 including the arrears of income which have accrued due before the 
 order for payment, but after the commencement of the proceedings.'* 
 When liable But where she commences a suit under the Act of 1882, without 
 p. Act, 1882! a next friend, and is condemned in costs, payment of these can be 
 enforced against any separate property to which she is entitled, 
 free from restraint or anticipation at the time when the order to 
 
 ^ 44 & 45 Vict. c. 41. ^ Stewart v. iletcher, 38 Gh. D. 627. 
 
 3 Order xvi. r. 8. * Noel v. Noel, 13 Ch. D. 510. 
 
 ^ Martano v. Mann, 14 Gb. D. 419 ; see &\so Kingaman v. Kingsman, 6 Q. B. D. 
 122. 
 
 15 45 & 46 Viot. c. 75. ' Sect. 24. 
 
 8 See Severance v. The Civil Service Supply Association, 48 L. T. 485. 
 ' Whittaker v. Kershaw, 44 Ch. D. 296. 
 ^° lie Olanvill, Ellis v. Johnson, 31 Ch. D. 532. 
 
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CHAP. xiv.J CONTRACTS BY MARRIED WOMEN. 333 
 
 pay them is made, and not only against separate property to 
 which she is so entitled at the time when she commences the 
 proceedings.' An important alteration has been made by the Aiteratiou 
 Married Women's Property Act, i893,Mn connection with this m.*w. p.^ct, 
 liability; for when a married woman either by herself or by next ^lia.a-s to 
 friend institutes an action or proceeding and is condemned in restraiiit ou 
 costs, the Court before which such action or proceeding is pending her liability for 
 may from time to time order payment of the costs of the opposite °°^'^" 
 party out of her property which is subject to a restraint on 
 anticipation. This provision, however, has been lately held not 
 to apply to an appeal or other motion or step instituted by her in 
 an action in which she is defendant ; ' nor does it give the Court 
 jurisdiction to alter the efEect of an order made before this Act 
 came into operation.* But a counter-claim in an action against 
 her is a "proceeding instituted" by her, within the meaning of 
 this Act.^ The Court can enforce payment of the costs of such 
 proceedings unsuccessfully instituted by her by the appointment 
 of a receiver.^ 
 
 The capacity of a married woman to sue or be sued alone in in tort. 
 tort depended on like conditions as in contract. At common law, At comuioii 
 and up to quite recently, the wife had in an action in tort for *^^" 
 damages to prove special damage to herself; and the husband 
 was joined merely for conformity, though he alone recovered the 
 damages assessed.' Both she and her husband also were jointly 
 liable for ante-nuptial or post-nuptial wrongs committed by her, 
 on the principle that " for any wrong committed by her she is 
 liable, and her husband cannot be sued without her ; neither can 
 she be sued without her husband.^ Strictly speaking, a married Married 
 
 ,, . ,., ii-iiTT woman's tort 
 
 woman could not commit a tort, which was that oi her husband, that of her 
 and therefore could not be sued alone for it ; but the husband "° ™ " 
 was liable to those injured by it.° She could sue or be sued in 
 tort at common law in like cases as in contract, e.g., where her 
 husband was civiliter moriious, or an alien enemy. In equity, if Ca.pa'Oity in 
 she were guilty of a tort in connection with her separate estate, 
 such as a breach of trust, she was not personally amenable, but 
 her separate property could be rendered liable.'" By statute law statutory 
 under the Divorce Acts, she could sue in tort as a single woman 
 
 ^ Ooxv. Bennett, [1891] i Ch. 617. ^ S6 & 57 Viot. u. 63, s. 2. 
 
 3 Sbod Barrs v. Gatlicart, [1894] 3 Ch. 376. 
 
 ■* Be Lumley, Ex parte Hood Barrs, [1894] 3 Ch. 135. See post, chap. xv. 
 Separate Estate. 
 
 ° Hood Barrs v. Cathcart, [1895] ' Q- B. 873. 
 
 ^ Jbid. ' Dengate v. Gardiner, 4 M. & W. 5. 
 
 s Per Erie, C. J., in Oapel v. Bowdl, 34 L. J. C. P. 168, 
 
 s Head v. Briscoe, 5 C. & P. 484. ^ Wainford v. Heyl, L. E. 20 Eq. 321. 
 
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334 
 
 HUSBAND AND WIFE. 
 
 [part r. 
 
 M. W. P. Act, 
 IS82. 
 Married 
 woman may 
 sue or te sued 
 alone in tort, 
 in personal 
 as well as 
 representative 
 capacity. 
 
 Statute of 
 Limitations. 
 
 Summary. 
 
 during a decree of judicial separation obtained by her;' or during 
 the continuance of an order protecting her goods and earnings 
 obtained on the desertion of her husband.^ Under the Married 
 Women's Property Act, 1870/ she could compel the proper 
 fulfilment of her rights arising out of that Act.^ 
 
 Under the Married Women's Property Act, 1882, she can now 
 sue or be sued in tort not only in her personal but her representative 
 capacity as trustee, executrix, or administratrix ; ° and by section i , 
 sub-section 2, she may sue or be sued in tort in all respects as 
 if she were a feme sole, and neither husband nor next friend need 
 be joined as a party, nor need she give security for costs, nor 
 obtain leave of the Court to sue alone ; ^ and she may sue in 
 respect of a cause of action that arose before the Act came into 
 force.' She is affected by the provisions of the Statute of 
 Limitations, and so must bring her action for any trespass, 
 false imprisonment, assault or battery within four years of the 
 time when the right of action accrued, for the Married Women's 
 Property Act, 1882, has made her "discovert" for the purpose 
 of bringing actions within the meaning of 21 Jac. I. c. 1 6.° 
 
 The combined effect of section 24, and sub-section 2 of section i 
 of the recent Act, is to enable a married woman, either in her 
 personal or representative capacity, to sue or be sued without her 
 husband or next friend, as if she were a feme sole, whether the 
 form of the action be in contract or in tort, whether the contract 
 arose before or after the marriage, or before or after the Act came 
 into operation, or the wrong done was done by or to her, and 
 before or during the marriage, or before or after the Act came 
 into operation. Her position for the purposes of suing and being 
 sued is the same as that of a man, and she can sue in formA 
 pauperis, and will not be required to give security for costs except 
 in those instances in which a man possessed of a like amount of 
 property would be required to give it. 
 
 Liability of 
 married 
 women pro- 
 prietary and 
 not personal. 
 
 Section 5. 
 
 Liahility of Married Women in respect of their Contracts. 
 
 It now remains to be discussed of what nature is the liability 
 of married women on their contracts. Is the liability personal or 
 
 ' 20 & 21 Vict. c. 85, B. 25. 
 
 ^ Jbid. e. 21. Bamsden v. Brearhy, L. K. 10 Q. B. 147. 
 3 33 & 34 Vict. c. 93. 
 
 ■* Eeg, V. Oarnatie Railway Co., L. R. 8 Q. B. 299. ^ Sect. 24. 
 
 ^ Severance v. The Civil Service Supply Association, 48 L. T. 485 ; James v. Bar- 
 raud, 49 L. T. 300. 
 
 ' Weldon v. Winslow, 13 Q. B. D. 784. « Loire v. Fox, 15 Q, B. D. 667. 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 335 
 
 proprietary, that is, one solely confined to such separate property 
 as she has full control over ? It has been authoritatively decided 
 that the liability of a married woman is not personal but 
 proprietary.' In equity it was only her free separate estate that 
 could be reached to satisfy her creditor's claim.^ 
 
 Under the Married Women's Property Act, 1882, which M. w. P. Act, 
 materially increased her liability for her contracts and engage- ' ^" 
 ments in respect of her separate property, her liability is yet 
 limited to the extent of her free separate estate ; ^ that is to say, 
 neither in equity was she deemed, nor under present statutory 
 provisions is she deemed, to put herself forward as personally 
 liable, but only her separate property. From the above state of 
 the law flow the following results. A married woman cannot be 
 committed to prison on a judgment summons under section 5 of 
 the Debtors' Act, 1869, for default in paying a sum of money for 
 which judgment has been recovered against her, both in cases 
 where her separate property is subject to a restraint upon antici- 
 pation,'' and in cases where it is not subject to that fetter.* She 
 cannot be made bankrupt in respect of her liabilities unless she 
 happens to be carrying on a trade separately from her husband ; ° 
 thus, a bankruptcy notice under section 4, sub-section i (g) of the 
 Bankruptcy Act, 1883, cannot be issued against her if she is not Bankmptcy 
 carrying on a trade apart from her husband ; ' for section 152 of be issued 
 that Act safeguards the provisions of the Married Women's ^gamst a 
 
 o tr ^ ^ mamed 
 
 Property Act, 1882; and even where she is carrying on a trade woman. 
 apart from her husband, such bankruptcy notice cannot be issued 
 against her, on the same principle that the judgment which is the 
 basis of the notice is not against her personally but against her 
 separate property.^ But she does become a "debtor" for some 
 purposes when a judgment has been recovered against her ; thus, 
 a judgment on a valid contract obtained against her will entitle 
 
 1 Scott V. Morley, 20 Q. B. D. 120. In this case tie Court of Appeal settled the 
 form of the judgment which ought to he used in the case of a married woman. "It is 
 adjudged that the plaintiff , do recorer £ and costs (to he taxed) against the 
 defendant (the married woman), such sum and costs to be payable out of her separate 
 property, as hereinafter mentioned, and not otherwise. And it is ordered that execution 
 hereon be limited to the separate property of the defendant (the married woman), not 
 subject to any restriction against anticipation, unless by reason of s. ig of the Married 
 Women's Property Act, 1882. The property shall be liable to execution, notwith- 
 standing such restriction. " 
 
 2 Aylett V. Ashton, i My. & Cr. 105 ; Atwood v. ChicJiester, 3 Q. B. D. 722. 
 ' Sect. I, sub-a. 2 ; sect. IJ. 
 
 * Meager v. Pettew, 14 Q. B. D. 793 ; Draycott v. Harrison, 17 Q. B. D. 147. 
 ^ Scott V. Morley {uhi sup.). 
 
 ' 45 & 46 Vict. c. 75, s. I, sub-s. 5 ; Re Heioett, Ex parte, Levene, [1895] I Q. B. 
 328 ; and see JRe Lynes, Ex parte Lester, [1893] 2 Q- B. 113. 
 ' Be Gardiner, Ex parte Ooulson, 20 Q. B. D. 249. 
 ^ Be Lynes, Ex parte Lester (ubi sup.). 
 
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336 HUSBAND AND WIFE. [part i. 
 
 the successful party to aa order for her examination as to her 
 separate estate under Order xxv. r. 47, of the County Court Eules 
 1892/ and maybe enforced by a garnishee order attaching a 
 debt due to her from a third person.^ 
 M. w. p. Act, The Married Women's Property Act, 1893,^ which renders the 
 ' ^^' existence of free separate property at the time of a married woman 
 
 entering into a contract or incurring a liability no longer necessary, 
 has not altered the law in this respect, for the wording of section i 
 is to the effect that " every contract hereafter entered into by a 
 married woman .... shall be deemed to be a contract entered 
 into by her with respect to and to bind her separate property, 
 whether she is or is not in fact possessed of or entitled to any 
 separate property at the time when she enters into such contract." 
 Further, there is a proviso which preserves the well-established 
 effect of the restraint upon anticipation. The principles of the 
 above decisions will still hold good as to the liability of a married 
 woman on her debts and contracts effected after December 5 th, 
 
 1893-' 
 Distinction The distinction between the liability of a married woman 
 
 liabUity^ of ^°^ ^^^ ante-nuptial and post-nuptial debts is that the former is a 
 marriedwomen personal liability in its fullest sense — that is, she was liable to be 
 nuptial and taken in execution for it, and is now liable to a debtors' summons 
 debts""^ '* in respect of it ; ° while the latter is a proprietary one only — that 
 
 is, confined to such separate estate as she may possess." Formerly 
 
 1 Countess of Aylesford v. Ch-eat Western Railway Co., [1892] 2 Q. B. 626. 
 
 ^ Boltby V. Hodgson, Bateson ( Garnishee), 24 Q. B. D. 103. 
 
 3 56 & 57 Vict. c. 63. 
 
 * Tlie date of the coming into operation of the Act. 
 
 ^ See Dillon v. Cunningham, L. K. 8 Ex. 23, and Edbinson v. Lynes, [1894] 
 2 Q. B. 577. 
 
 8 See Me Mewett, Ex parte Levene, [1895] i Q. B.-328. There was a question at 
 first among the annotators of the Married Women's Property Act, 1882, whether its 
 eiFect was to make a married woman personally liable to satisfy her contracts and 
 debts. It seemed at first that full and unfettered contractual capacity had been 
 conferred upon her, hut a closer examination of the Act showed that under its provisions 
 as in equity the separate estate and not the married woman herself was to be held 
 ultimately liable to make good the claims of her creditors. The expression " personal 
 liability " is clearly derived from the fact that in former days and in most early systems 
 of jurisprudence the body of the debtor was liable to be taken in execution to satisfy 
 the creditors' claims. One result of this personal liability was that all the property of 
 the debtor could be taken in execution. Now it is well-established law, as has been 
 set forth above, that since the courts administering equity permitted a mariied woman 
 to enter into contracts which were held binding, the body of a married woman could 
 not be taken in execution for her post-nuptial debt. In equity she herself was not 
 personally liable, it was her separate estate which had to answer for her engagements 
 (AyUtt V. Ashton, i My. & Cr. 105 ; Atwood v.^ Chichester, 3 Q. B. D. 722). 'This 
 arose from the position of the married woman during coverture. Equity recognised the 
 jus mariti and the common law disability of the married women to contract, and invented 
 its creature, the separate estate, to obviate the injustice of a woman losing all her personal 
 property simply by marrying; but in a short time after the establishment of the 
 doctrine by the courts, the corresponding liability for her engagements in respect of it- 
 was recognized. But even then equity recognized the personal incapacity and irrespon- 
 Bibility of the married woman, and only allowed her property to he rendered chargeable 
 through the fiction that when she contracted she put forward her separate property as 
 the real debtor, who would satisfy any claims that might arise on the part of the other 
 
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CHAP. XIV.] CONTRACTS BY MARRIED WOMEN. 337 
 
 it was the usual practice to declare the separate property of the 
 married woman vested in her or her trustees chargeable with the 
 satisfaction of her liability, and to charge it with that amount, 
 and that an inquiry should be made of what the separate property 
 consisted, at the time of making the contract, and in whom it was 
 vested.^ Such inquiry, as has been seen, is as necessary now as 
 heretofore, in order to ascertain whether her property is subject to 
 a restraint upon anticipation, for in such case it is not liable to 
 make good her creditor's claim. Under the present state of the law 
 nothing, it would seem, can prevent her from disposing of her 
 separate property before judgment ; and the Court would not 
 on the part of a creditor restrain her from dealing with her 
 property.^ 
 
 It is not necessary to join her trustees (if any) in order to get Joinder of 
 a mere charge upon her property ; ^ but where payment out of ™^ ^ 
 the property is sought (which is the effect of such a judgment 
 under Order xrv. r. i), and not a mere charge, then they 
 should be joined,"* but their joinder is not a condition precedent 
 
 contracting party. It is true that at common law a married woman might have heen 
 taken under a ca. sa. in personal execution of a debt contracted by her before maniage, 
 whether her husband was also taken in execution or not ; and the Court did not as a 
 rule order her discharge where she had separate property and could satisfy it {Edwards 
 V. Martyn, 21 L. J. Q. B. 86 ; Ivens v. Butler, 26 L. J. Q. B. 145) ; and a final 
 judgment for such ante-nuptial debt with all its consequences may still be signed against 
 her (Bdbinson v. Lynes (uhi sup.). This liability was a personal one in the 
 fullest sense of the word, and shows that the separate existence of the married woman, 
 was recognized but only for a limited class of liabilities. But in equity all her property 
 was not liable, but only that separate property over which she had free and unfettered 
 power of disposition. The preservation of the effect of the restraint upon anticipation 
 in the Act of 1882 proved very clearly that the full personal liability of a married 
 woman could not have been intended ; because such liability would have depended 
 altogether upon the existence or non-existence of the fetter ; that is, there would have 
 been a different legal liability for different women, though in nearly all respects they were 
 under the same legal conditions, a state of affairs the Legislature could hardly be deemed 
 to have intended. Section 15 of the Act casts some light on this point ; it renders 
 husband and wife jointly suable for the latter's ante-nuptial liabilities, and provides for 
 a joint judgment against them both„if the husband's liability shall appear. It then-goes on 
 to say, the judgment to the extent of the amount for which the husband is liable shall be a 
 joint judgment against the hv^hand personally, and against the wife as to her separate 
 property; and as to the residue, if any, of such debt and damages, the judgment shall 
 be a separate judgment against the wife as to her separate property only." Here a 
 substantial distinction was contemplated between the personal or general liability of 
 the husband and the limited liability of the wife, that is, one confined to her property. 
 Soon after the passing of the Act of 1882, it was held that final judgment under Order 
 XIV. r. I, which in a sense is a personal judgment, might be signed against a married 
 woman who has separate estate ( Gunstoa v. Maynard, 75 L. T. Jour. 102), or on default 
 of appearance {Perks v. Mylrea, W. N. 1884, 64), in which case a receiver may be 
 appointed of her free separate property {Ibid.). But unconditional judgment cannot be 
 signed under Order xiv. r. i, against her, and execution on a judgment uuder that Order 
 must be limited to the separate property over]whioh she has full control {Moore v. Mulligan, 
 W. N. 1884, 34; Perks v. Mylrea (ubi sup.). BursUl v. Tanner (13 Q. B. D. 691), 
 which on this point is a correct decision. 
 
 ^ See Pica/rd v. Hine, L. R. 5 Ch. App. 274 ; Pilce v. Mtzgibhon, 17 Ch. D. 454 ; 
 Gloucestershire Banking Co. v. Phillips {Oreagh, Third Party), 12 Q. B. D. 533. 
 
 ^ Bohinson v. Pickering, 16 Ch. D. 660. 
 
 ^ Picard v. Hine {ubi sup.); Collett v. Dickenson, 11 Oh. D. 687. 
 
 ■• Atwood V. Chichester (^bi sup.) ; Collett v. Dickenson {ubi sup.). 
 
 Y 
 
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338 HUSBAND AND WIFE. [part i. 
 
 ileoeiver. to judgment against the married woman.' So where an order 
 is obtained, appointing a receiver of the separate estate for the 
 purpose of satisfying the claims of her creditors, the trustees need 
 not be made parties to the application, though they must band 
 over to the receiver whatever property is capable. of satisfying the 
 debts of the married woman. The trustees are not superseded by 
 the receiver, but he is appointed over the head of the married 
 woman.^ Where a married woman whose property is subject to 
 a restraint upon anticipation incurs a liability, and becomes a 
 widow, a creditor who obtains judgment against her separate estate 
 not subject to such restraint can not enforce it by the appointment 
 of a receiver or otherwise.' 
 
 How a married woman may proceed to vindicate her rights 
 arising out of her contracts, and in what manner a creditor may 
 enforce his remedy against her, that is, what property may be 
 taken in execution, will be discussed in a subsequent chapter." 
 
 1 Perhs V. Mylrea, W. N. 1884, 64. ^ Be Peace and Waller, 24 Ch. D. 405. 
 8 Pdtcm {Brothers) v. Earriaon, [iSgi] 2 Q. B. 422. 
 ' See post, chap. xv. pp. 390 et seq. 
 
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CHAPTER XV. 
 
 SEPARATE ESTATE. 
 
 PAGE 
 
 Definition op Sbpaeatb Estate 340 
 
 Cbbation and Geowth op Equitable Separate Estate . 341 
 
 An Invention op Equity 342 
 
 How Cheated : 
 
 Appointment op Trustees 344 
 
 By Gift op Steangbe or Husband .... 344 
 
 By Ante-nuptial Agreement 345 
 
 By Post-nuptial Agreement 345 
 
 What Words Sufficient to Create . . . 346 
 
 What Words Insuppicibnt to Create . . . 347 
 
 Separate Interest in Accumulations, &c. . . 348 
 Duration and Ambulatory Nature op the Separate 
 
 Estate 349 
 
 Statutory Extension op the Separate Estate : 
 
 Under 20 & 21 Vict. c. 85, s. 21. Protection Order 350 
 
 Effect op Order 350 
 
 Summary Jurisdiction (Married Women) Act, 1895 . 352 
 
 Married Women's Property Act, 1870 .... 354 
 Married Women's Property Act Amendment Act, 
 
 1874 356 
 
 Married Women's Property Act, 1882 : 
 
 General Scope and Effect 356 
 
 Married Women's Property Act, 1893 .... 362 
 
 Power of Disposition over Separate Estate . . . 363 
 
 Inter Vivos : Real Estate 364 
 
 Full Power under M. W. P. Act, 1882 . . . . 366 
 
 Personal Estate 366 
 
 Full Power under M. W. P. Act, 18S2 ... 367 
 
 By Will : Real Estate 368 
 
 Power under M. W. P. Act, 1882 . . . 368 
 
 Personal Estate 369 
 
 Under M. W. P. Act, 1882 370 
 
 Under M. W. P. Act, 1893 371 
 
 Powers op Appointment 372 
 
 Effect op Execution op General Power . . 374 
 Restraint upon Anticipation : 
 
 Its Origin 374 
 
 Its Ambulatory Operation 377 
 
 On what Property it can take Effect . • • 377 
 
 Preserved by M. W. P. Act, 1882 378 
 
 By M. W. p. Act, 1893: Exceptions .... 380 
 
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340 HUSBAND AND WIFE. [paet i. 
 
 BbsteAJNT upon ANTICIPATIOS—Continued: pace 
 
 Eppect op Ebsteaint 381 
 
 Removal op Restraint : 44 & 45 Vict. c. 41, s. 39 . 385 
 
 Election op Maeeied Women: Compensation . . 389 
 Sepaeatb Peopeety in Respect op which Liability 
 
 Exists: Undbe M. W. P. Act, 1882 . . . . 390 
 
 Undbe M. W. p. Act, 1893 391 
 
 What Peopbety may be Taken 392 
 
 What not 3^3 
 
 Questions between Husband and Wipe as to Peopeety 397 
 Remedies op Maeeied Women in Respect of theie 
 
 Peopeety: Civil 400 
 
 Criminal 402 
 
 Liability op Wipe to Criminal Peocebpings on 
 
 Prosecution op Husband , 403 
 
 Pin Money 403 
 
 Paraphernalia 406 
 
 APPENDIX : 
 
 Maeeied Women's Property Act, 1882 .... 409 
 Maeeied Women!s Property Act, 1893 . , , . 417 
 
 The important topic of the Separate Estate of married vromen 
 Deflmtiou of forms the. subiect matter of this chapter. Separate estate may 
 estate. be defined to be that property which a married woman is entitled 
 
 to hold and dispose of unafEected by any marital rights or engage- 
 ments during the period of coverture. The expression was 
 formerly used to describe that kind of property which was 
 unaffected by the marital right in contradistinction to that pro- 
 perty over which the husband's ordinary legal rights prevailed. 
 All property But by recent legislative enactment all kinds and descriptions of 
 a°married°^ ° property belonging to a woman married after January i, 1883, 
 seoarat ^^^ ^^® ^^^ Separate property, and, under certain conditions, property 
 estate. belonging to her who was married before that date. In the case 
 
 of those married after that date there is no differentiating mark 
 between property expressly clothed with the attributes of separate 
 estate and property without them. Previously to the Married 
 Women's Property Act, 1882,' separate property was created 
 by the express act and determination of those who called it into 
 existence, or by the force of legislative authority, which stamped 
 certain but limited classes of property with the incidents of 
 Now^^acti- ownership unaffected by coverture. Under the former state of 
 between equit- ^^^ ^^^ Considerable difference existed between what was known 
 
 able and statu- ^g equitable Separate estate and statutory separate estate ; but 
 tory separate ^ r j r j 
 
 estate. since the passing of the abbye Act, the difference between them, 
 
 so far as regards women niarried after it came into force, has 
 
 ' Ms & 46 Vict. c. 75- 
 
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 1 (ffl^fflctio 
 
CHAP. XV.] SEPARATE ESTATE. 3-11 
 
 been practically abrogated. Equitable separate property was 
 that property which equity through the medium of trusts, and 
 carrying out the intention of the parties, treated as property 
 free from the marital control during coverture. But now all 
 property belonging to a married woman (not affected by a settle- 
 ment), whether vested in trustees (in which case it would be 
 still equitable) or not, is property which comes under the opera- 
 tion of th-e Act, and so is in a sense statutory. Equity, how- 
 ever, will preserve its jurisdiction over purely equitable separate 
 property, as where the legal estate is vested in trustees ; and 
 their functions will be necessary where it is desired to restrain 
 a woman from deahng with the property during coverture. But 
 since the law existing anterior to the passing of this Act still 
 affects a large number of married women, it will be necessary to 
 treat it as though unaffected by any change or modification ; 
 and the actual recent changes will be discussed as part only of 
 the general subject. This chapter will be divided into the follow- 
 ing sections : — 
 
 Section i. Creation and Growth of the Separate Estate. 
 Section 2. Statutory Extension of the Separate Estate. 
 Section 3. Powerof Disposition over the Separate Estate; a. /n^er 
 
 vivos ; b. By Will ; c. By Power of Appointment. 
 Section 4. Restraint upon Anticipation. 
 
 Section 5 . Separate Property in Eespect of which Liability Exists. 
 Section 6. Questions between Husband and Wife as to their 
 
 Property. 
 Section 7. Remedies of Married Women in Respect of their 
 
 Separate Estate. 
 Section 8. Pin Money and Paraphernalia. 
 
 Section i . 
 
 Creation and Growth of the Separate Estate. 
 
 At common law, as has already been seen, the jus maritale Creation and 
 prevailed over all property of the wife belonging to the wife at feparate" 
 the time of marriage, and subsequently coming to her, as to per- estate. 
 sonal property absolutely, as to realty by giving the husband an 
 interest in it for the period of coverture, or for his life. But 
 equity, under the guidance of a succession of eminent Chancellors, 
 tempered the harshness of this common law doctrine with the ggparate use 
 juster principles of the separate use. The doctrine of the separate invoiyedin the 
 use is bound up with and involved in the doctrine of trusts. When trusts. 
 
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342 HUSBAND AND WIFE. [pakt i. 
 
 trusts became an integral portion of the law, then is the separate 
 property of married women recognized and approved. At first it 
 appears in a modest guise ; then in time it takes a more pro- 
 minent place in the ranks of legal principles, and claims to have 
 all the incidents of dominion attached to it. It is very probable 
 that as soon as the Court of Chancery placed the doctrine of 
 trusts upon a firm and secure basis, notwithstanding the interpre- 
 tation put upon the Statute of Uses by the common law judges 
 (who held that a use upon a use was not executed by the 
 statute)^ the creation of separate estate through the medium 
 of trusts in favour of married women was approved and fostered 
 An inventien ^7 *^® equity courts.^ Equity was the inventress of the whole 
 of equity. doctrine.' Synchronously with this struggle between the two 
 branches of the law, wealth in the shape of personalty was largely 
 increasing in this country and becoming of great importance ; and 
 females on their marriage or during coverture brought with them 
 or acquired fortunes of considerable extent; thus, it became a 
 conviction that it was expedient, for " the interests of society, 
 that means should exist by which, upon marriage, either the 
 parties themselves by contract, or those who intended to give 
 bounty to a family, might secure property for the benefit of the 
 wife and children, without that property being subject to the 
 £ ij control of the husband."'' This doctrine was, no doubt, a 
 
 doctrine an serious inroad into the theorv of the unity of the spouses, and 
 
 inroad into . , „ , , ,. . ,. ■,■!•-, • 
 
 the common even into that of the subordmation oi the wiie durmg coverture, 
 covertiiref °^ ^ut was founded on the clearest principles of justice that what 
 was given to one should not be taken by another and diverted 
 from the purposes for which it was originally intended ; for that 
 which might have been given to the wife to support her and her 
 children when left a widow, might be taken by a spendthrift 
 husband and squandered, or claimed by his creditors to satisfy 
 debts from which she had reaped no advantage. It is the essence 
 of the separate use that the wife's property shall be independent 
 of and free from the control and interference of her husband. 
 Traces of There are traces of this doctrine in the reign of Queen 
 
 timfoToSeen Elizabeth ; " thus, in Boyleij v. Persuli; Lord Keeper Finch 
 
 Elizabeth. 
 
 ^ See Nevil v. is'aunders, Vera. 415. ^ Hayes, Conv. 500. 
 
 ' See Doyley v. Fersull, 2 Ch. Cas. 225. 
 
 ^ Per Lord Cottenham in Rennie v. Mitchie, 12 CI. & Fin. 234. 
 
 ^ See Sankey v. Goldiiie, 21 & 22 Eliz. Feme covert joined with harm in sale of 
 part of her inheritance : quan-els and separation. ;£'ioo from sale allotted to^ -wife for 
 maintenance, and placed in hands of a trustee for feme. Feme sues administrator 
 of trustee, who demurs that her husband is not joined. Demurrer overruled, 
 and defendant made to answer. See] al&o Gorges v. Chancy, cited in Pridgeoris Case, 
 2Ch. Cas. 117. 
 
 ' VU sup. In this case the wife had assigned her term in trust for herself before 
 marriage ; a mortgage by the husband of the term was held bad. 
 
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CHAP. xv.J SEPARATE ESTATE. 343 
 
 declared that since Queen Elizabeth's time it had been the 
 constant course of their court to set aside and frustrate all 
 incumbrances and acts of the husband upon the trust in the 
 wife's term; and that he should neither charge nor grant it 
 away. By the time of Lord Hardwicke the doctrine was well 
 established ; and in that of Lord Thurlow it was placed on 
 such a firm basis that nothing short of legislative interference 
 could have annulled it. The common law courts recognized its 
 existence.' 
 
 This doctrine has been summed up as follows : — " In this Lord Langd: le 
 Court a married woman has, for more than a century/ been Armstrong! 
 considered as capable of possessing property to her own use inde- 
 pendently of her husband ; such property is called her separate 
 estate, and, in respect of it, she is considered as a feme sole 
 enjoying, and capable of exercising, her rights as such. The 
 property may be acquired either by contract with the husband 
 before the marriage, or by gift from him, or from any stranger 
 wholly independent of such contract ; so far as his legal rights 
 as husband may interfere, the Court will treat him as a trustee ; 
 and property held by or for the wife to her separate use, if 
 unaccompanied by any restraint, is subject to her power of alien- 
 ation, and the other incidents of property held by men or single 
 
 women Property given to a woman for her separate use, 
 
 independent of any husband, may, under the authority of this 
 Court, be enjoyed by her during her coverture, as her separate 
 estate, although the property originally, or at any subsequent 
 period or periods of time, became vested in her when discovert. 
 In respect of such separate estate, she is by this Court considered 
 as a feme sole, although covert. Her faculties as such, and the 
 nature and extent of them, are to be collected from the terms in 
 which the gift is made to her, and will be supported by this 
 Court for her protection. The words ' independent of a husband,' 
 whether express or implied in the terms of the gift, mean no 
 more than that this Court will not permit the marital power of 
 the husband to be used in contravention of the enjoyment of the 
 property, according to the terms of the gift. If the gift be made 
 for her sole and separate use, without more, she has during the 
 coverture an alienable estate independent of her husband. If the 
 gift be made for her sole and separate use, without power to 
 alienate, she has during the coverture the present enjoyment of 
 an unalienable estate, independent of her husband. In either 
 of these cases she has, when discovert, a power of alienation ; 
 the restraint is annexed to the separate estate only, and the 
 
 1 Davison v. Atldason, 5 T. R. 434. " The date of this judgment was 1838. 
 
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Ui 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 How separate 
 estate created, 
 
 By appoint- 
 ment of 
 tmsteea. 
 
 Trustee no 
 
 longer 
 
 necessary. 
 
 By gift of 
 stranger or 
 husband. 
 
 separate estate has its existence only during coverture ; whilst 
 the woman is discovert, the separate estate, whether modified by 
 restraint or not, is suspended, and has no operation, though it is 
 capable of arising upon the happening of a marriage." ' 
 
 To constitute separate estate, with its consequences, the inter- 
 vention of trustees was usual in order to obviate the influence 
 of the husband over the wife, and to render her property more 
 secure from his control ; but the appointment of trustees was not 
 actually essential,^ and where necessary the husband himself (in 
 cases where the legal estate vested in him) was treated as a 
 trustee, on the well-established equity principle that a trust shall 
 never fail for want of a trustee,' and where property was given 
 to the husband for his wife's separate use, he was held to be 
 her trustee.' By the Married Women's Property Act, 1882,* 
 the intervention of trustees to constitute separate property is 
 expressly dispensed with ; and the effect of that provision is, if 
 followed, that now the legal estate vests absolutely in the 
 married woman herself who possesses property not held in trust 
 for her. But as a measure of precaution, and to insure that her 
 interests are fully secured, it wUl be as requisite now as hereto- 
 fore to appoint trustees ; for though the law may increase the 
 powers and privileges of married women, it is incapable of con- 
 trolling the influence of husbands ; and the more unfettered the 
 wife is, the greater the opportunity the husband will possess of 
 making his power and influence felt ; and so the very intent and 
 aim of the law will be defeated. 
 
 The separate use applies as much to real as- to personal 
 property; and where realty is settled or directed to be held to a 
 married woman's separate use, the husband is not entitled to the 
 rents and profits. 
 
 Separate estate may be created in various ways. a. It may 
 be created by gift inter vivos, or by legacy of a stranger, or by 
 gift from the husband, with words sufficient to constitute a 
 separate interest in the wife. Such a gift may be made to a 
 woman when covert, or discovert, but to take efiect on her 
 coverture ; so that, on becoming covert, she will hold it as 
 separate estate free from marital control. This gift may be 
 
 1 Per Lord Langdale, M.E., in Tullett v. Armstrong, i Beav. 21-22 and 32-33. 
 
 ^ But as late aa 1710 it was doubted by Lord Chancellor Cowper whether a bequest 
 of personal property to a married woman for her separate use without trustees did not 
 pass to her husband ; however, in Solfe v. Sudden, Bunb. 187, and Bennet v. Dams, 
 2 P. Wms. 316, where property was settled to the separate use of a mamed woman 
 without trustees, her husband was made a trustee. 
 
 ■" Bennet v. Davis (ubi sup.). Ex parte Sibeth, Be Si'oeth, 14 Q. B. D. 417. 
 
 * Darley v. Darley, 3 Atk. 399. " 45 & 46 Vict. c. 75, s. i, sub-s. i. 
 
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CHAP. XV.] SEPARATE ESTATE. 345 
 
 made to a woman in anticipation of a marriage generally, or of a 
 particular marriage ; or not in contemplation of any marriage, 
 but with the intention that if the donee marry, any husband shall 
 not exercise his marital control over it.' The intention to create 
 separate estate, and the sufficiency or insufficiency of the words 
 to be used, are discussed in after-pages. 
 
 h. The separate use may be created by ante-nuptial agreement By ante-nup- 
 on the part of the husband that his wife shall be entitled to her '* *s™emeu . 
 personal property for her separate use ; and this arrangement is 
 usually carried out by a marriage settlement executed between 
 the parties. If the property is not actually so settled, and the 
 legal title vests in the husband, he will be held a trustee of the 
 property for his wife's separate use.^ This agreement must be in 
 writing ; if not, the Statute of Frauds ^ will prevent its enforce- 
 ment, unless the husband has been guilty of fraud, in which case 
 equity will relieve. It has also been suggested that if such parol 
 agreement has been acted upon, as by handing over the agreed 
 property to trustees of the settlement, it would be binding upon 
 the husband.'' Though there might have been a total renuncia- 
 tion of the marital right, yet if the woman did not sign the agree- 
 ment, her property did not become her separate estate so as to 
 enable her to dispose of it by will during coverture.' 
 
 c. If the husband after marriage agrees that certain property By post-nup- 
 belonging to the wife shall continue to belong to her, such pro- mtnt^th^ 
 perty will be to her separate use, and freed from his control and '^"sbaiid. 
 engagements. So, too, where the husband acquiesces in his wife 
 carrying on a business or trade separately, the profits of the 
 business or trade will be her separate property ; thus, where the 
 husband allowed his wife for her separate use to make profit of 
 certain farm produce, the money she made out of the business 
 was held to be her separate property ; and she was allowed to 
 prove against his estate in respect of a loan she made to him out 
 of it;" and where he allowed her to carry on a trade pursued 
 by her as a single woman, and did not in any way interfere with 
 it, the stock-in-trade and profits of the business were held to be 
 her separate property.' One effect of the Married Women's 
 Property Act, 1882, is that there is no longer any need for a 
 specific agreement between husband and wife that property com- 
 ing to her during marriage shall be her separate property ; for 
 
 ' Tullett y. Armstrong (jiM sup.}, " Tyrrell v. Hope, 2 Atk. 558. 
 
 ^ 29 Car. 11. c. 3. 
 
 * PerWigram, V.-C, in Simmons v. Simmons, 6 Ha. 352. 
 
 5 Bye V. Dye, 13 Q. B. D. 147. ^ Slanning v. Style, 3 P. Wms. 334. 
 
 ^ Ashworth v. Outram, 6 Ch. D. 923 ; Me Bearmer, James v. Dearmer, 53 L. T. 905. 
 
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346 PIUSBAND AND WIFE. [paet i. 
 
 the characteristics and attributes of separate estate are at once 
 stamped upon any property coming to a married woman in respect 
 of which it may be said she has a statutory settlement to her 
 separate use. 
 
 The marital interest in the wife's property being clear and 
 undisputed, the intention to limit that interest and create a sepa- 
 rate use for the wife must have been clear, though it was not 
 absolutely necessary in the instrument affecting the gift, whether 
 will or deed, to use technical expressions.' Sometimes it hap- 
 pened that the expressions used were ambiguous, in which case 
 recourse was had to the context and surrounding circumstances 
 for the purpose of gathering what was intended ; as, for instance, 
 a mere direction that the property shall be at the wife's own 
 disposal ; ^ or that her receipt shall be a sufficient discharge.^ 
 As such questions may still arise in the case of persons married 
 before January i, 1883,^ it has been deemed expedient to set forth 
 shortly what expressions have been held sufficient and what in- 
 sufficient to create a separate interest in the wife. But as regards 
 persons married after that date, this is a matter of antiquarian 
 rather than practical interest, because by the wide and sweeping 
 effect of the Act of 1882, all property, of whatsoever description, 
 and however derived, belonging to a woman at the date of her 
 marriage or acquired afterwards by her, is her separate property, 
 free from marital control unless the husband has stipulated for any 
 interest in it, and no question as to the intention of the donor or 
 settlor can possibly arise. 
 What words The following expressions have been held sufficient to consti- 
 tute a separate interest in the woman : ° — " For her full and sole 
 use and benefit " ; '' " for her own sole use and benefit " ; ' " for 
 her sole use";' "for her sole and separate use and benefit";' 
 " for her sole and separate use "; " "for her sole use- and benefit""; 
 " for her own sole use, benefit, and disposition ; " '^ " for her sole 
 and absolute use " ; '^ " for her own use, and at her own disposal " ; " 
 "to be at her disposal and to do therewith as she shall think 
 
 '^ Stanton v. Hall, 2 E. & Myl. 180 ; Darley v. Barley, 3 Atk. 399 ; iJe Peacock's 
 Trusts, 10 Ch. D. 490, 
 
 ^ FricJiard v. Ames, Turn. & Rubs. 222. ' Lee v. Prieaiix, 3 Bro. C. C. 381. 
 
 * Date of coming into operation of tlie Act. 
 ^ Collected in Peach, Sett. 280, 281. 
 ' Arthur v. Arthur, 11 Ir. Eq. Eep. 511. 
 
 ' Ex parte Ki'liclc, 3 M. D. & De G. 480. ^ Lindsell v. Thacker, 12 Sim. 178. 
 ^ Archer v. Borhe, 7 Ir. Eq. Rep. 478. 
 ^^ Parher v. Broohe, 9 Ves. 583 ; Adamson v. Armitage, 19 Ves. 415. 
 
 ^' V. Lyne, Younge, 562. 
 
 ^2 Exparte Bay, 1 Madd, igg. " Davis v. Prout, 7 Beav. 288. 
 
 '^* Prichard v. Ames, Turn. & Russ. 222. 
 
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 sufficient. 
 
CHAP. XV.] SEPARATE ESTATE. 347 
 
 fit " ; ' " solely and entirely for her own use and benefit " ; " 
 " for her own use independent of any husband ; " ' " not sub- 
 jected to the control of her husband " ;'' "for her own use and 
 benefit independent of any other person " ; ^ "for her liveli- 
 hood " ; " the interests and profits to be paid to her, and the 
 principal to her or to her order by note or writing under 
 hand " ; ' " that she should enjoy and receive the issues and 
 profits of the estate " ; ^ so, too, a direction that certain property 
 should be delivered up to a married woman " whenever she should 
 demand or require the same.'' ° So, also, a similar construction 
 has been applied to the words "to be laid out in what she shall 
 think fit ; " '" for her separate use " ; " " free of control of any 
 present husband or husband to come " ; '^ a direction to trustees 
 to pay, apply, and dispose of annual proceeds for any widow 
 whom he (the testator's son) shall leave for her life;'' or 
 " that the husband is to have no control " ; " and " sole use and 
 
 disposal." " Wiat ^oi^<i8 
 
 mi f n • -I 1 1 1 T insiffioient. 
 
 ihe following expressions have, on the contrary, been held 
 
 insufficient : — " To pay to a married woman and her assigns " ; '° 
 
 or a gift " to her use " ; " " to her own use and benefit " ; '^ " to 
 
 her absolute use " '^ (unless " absolute " can be construed to be 
 
 equivalent to " separate ") ; ^ payment directed to be made " into 
 
 her own proper hands to and for her own use and benefit " ; ^' or 
 
 to " be under her sole control " ; ^' or in a devise without the 
 
 intervention of trustees " for her sole use and benefit " ; ^ or a 
 
 direction to transfer to her own use and benefit " ; ^^ so a bequest 
 
 to a woman and her assigns for her life, " for her and their own 
 
 absolute use and benefit " ; ® so, too, a bequest to the testator's 
 
 wife for life of the income of property " to be expended by her 
 
 ^ Kirk V. Pavlin, 9 Vin. Abr. 96, pi. 43. 
 
 ^ Inglefield v. Cogfdan, 2 Coll. 247. * Waggtaffv. Smith, 9 Ves. 520. 
 
 * Bain v. Lescher, 11 Sim. 397. ^ Margetts v. Barringer, 7 Sim. 481. 
 
 ^ Darley v. Barley [ubi sup. ) . 
 ! ' EJuhne y. Tenant, 1 Bro. C. C. 16. ^ Tyrrell v. Hope, 2 Atk. 558. 
 
 ' Bixcm ¥. Olmius, 2 Cox, Eq. Cas. 414. 
 
 ^° Atcherley v. Vernon, 10 Mod. 518. " Massy y. Eowen, L. R. 4 H. L. 288. 
 
 ^^ Anderson v. Anderson, 2 Myl. & K. 427. 
 
 ^ Austin V. Austin, 4 Cli. D. 233. 
 
 " Edwards v. Jones, 14 W. R. 815. 
 
 ^ Bland v. Dawes, 17 Ch. D. 794 ; see Fox v. Hawks, 13 Ch. D. 822. 
 
 ^^ Daldns v. Beresford, i Ch. Cas. 194. 
 
 ^' Jacobs V. Amyatt, i Madd. 376 n. 
 
 '8 Johnes v. Lockhart, cited 3 Bro. C. C. 383 n. 
 
 ^' Ex parte Abbott, i Deao. 338. 
 
 ™ Shewell v. Dwarris, Johns. 172. ^ Tyler v. Lalce, 4 Sim. 144. 
 
 '-- Massey v. Parker, 2 My). & K. 174. 
 
 ^ Gilbert v. Lewis, 1 De G. J. & Sm. 38 ; Massy v. Eowen {ubi sup.). 
 
 ^ Barcy v. Croft, 9 Ir. Ch. Rep. ig. 
 
 25 Byoroft v. Christie, 3 Beav. 238. 
 
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348 
 
 HUSBAND AND WIFE. 
 
 [PAET 
 
 Gift of mcome 
 vests the 
 capital of 
 personalty. 
 
 Separate 
 interest in 
 accnmulations, 
 savings, and 
 arrears of 
 separate 
 property. 
 
 Money 
 remitted by 
 husband for 
 maintenance of 
 wife. 
 
 as she might think fit and proper, and agreeable to her free will 
 and pleasure." ' A gift to the separate use will not be implied 
 from the mere existence of the restraint upon anticipation.^ 
 A gift of the produce of a fund is under ordinary circum- 
 stances a gift of the produce in perpetuity, and therefore operates 
 as a gift of the fund itself, unless a contrary intention appears. 
 Thus, where there is a bequest to a woman of a fund with the 
 interest to be vested in trustees, such income to be for her sole 
 use and benefit, the capital is vested for her separate use ; ^ and 
 where a testator simply directed his trustees to convert the fund 
 for the benefit of a married woman independently of the control 
 of her husband, the married woman was held entitled to the 
 whole fund to her separate use." 
 
 Where a fund is settled to the separate use of a married 
 woman, the income or produce of that fund is also affected 
 by the separate use of the corpus; so, too, savings out of 
 her separate income by a married woman are also her separate 
 estate ; for " as she had a power over the principal, she 
 consequently had it over the produce of it, for the sprout is 
 to savour of the root, and to go the same way." ^ This 
 power need not be one which the married woman could 
 exercise during the coverture, for she may be restrained from 
 anticipating the capital ; but the savings of the produce of the 
 principal would be separate estate. The savings of her separate 
 estate will be liable to all the incidents of separate estate," 
 except that the savings in the hands of trustees of a married 
 woman who is restrained from anticipating will not be liable to 
 the restraint unless it can be proved that she transferred such 
 savings to be held on like trusts and conditions as the capital.' 
 Where a husband lives apart from his wife, and remits money to 
 her for her support and maintenance, it will be considered as her 
 separate estate ; and he cannot bring an action against his wife 
 to recover the savings.^ Arrears of separate estate in the 
 hands of trustees, due at the time of a second marriage, will be 
 considered as retaining their original character.' But the 
 dividends of separate estate, and railway stocks representing part 
 of her separate property sold after Ms death, are not separate 
 estate.'" 
 
 ^ Be OraTiam's Trusts, 20 W. E.. 289. 
 
 ^ Baggett v. Meux, 1 Coll. 138 ; Stogdon v. Lee, [i 
 
 ^ Adamson v. Armitage, 19 Ves. 416. 
 
 31] I Q. B. 661. 
 
 * Simons v. Howard, i Keen, 7 ; see also Elton v. Shepherd, i Bro. C. C. 552. 
 ^ Per Lord Keeper Sir Nathan Wright in Goi-e v. Knight, 2 Vern. 535. 
 " Butler V. Cumpston, L. E. 7 Eq. 16. '' Ibid. 
 
 ^ Brooke v. Brooke, 25 Beav. 342 ; hut see Messenger y. Clarice, 19 L. J. Ex. 306. 
 ^ Aahton v. M'Bougall, 5 Beav. 56 ; but see Spicer v. Dawson, 5 W. E. 431. 
 i« Mayd v. Field, 3 Ch. D. 587. 
 
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CHAP. xv.J SEPARATE ESTATE. 349 
 
 The separate use does and can only exist during coverture, for Dmation of 
 when discovert there is no person from whom she can hold her estate^*™ * 
 property separately and apart. Where property is limited to the 
 separate use of a single woman, who afterwards marries, and does 
 not renounce her rights over her property, the separate use springs 
 into existence at the moment of marriage.* When the cover- Cesser on 
 ture is terminated, the surviving wife takes and holds her separate m^age'.°" ° 
 property freed from all equitable restraints and conditions, and can 
 deal with it as though she had always been a single woman. A Ambulatory 
 question directly proceeding from the foregoing proposition has separate use. 
 been the subject of much litigation in the courts. It is whether, 
 if property be settled upon a married woman to her separate use 
 in contemplation of marriage, and she marries, and becomes dis- 
 covert, and marries again, the separate use revives on her second 
 marriage. This question has been answered in the affirmative, 
 but not until after some struggle and conflicting decisions of the 
 courts.^ The ambulatory nature of the separate use was finally 
 decided by Lord Langdale, M.R., and Lord Cottenham, L.C., in 
 the case of Tullett v. Armstrong^ in which it was clearly laid 
 down that the separate use, though it ceased on the married woman 
 becoming discovert, revived on her subsequent marriage.'' If the 
 trust for the separate use is limited by precise words to a particular 
 coverture, and the married woman becomes discovert, on the 
 termination of that coverture the separate use is gone altogether ; 
 and if she marry again, without having disposed of the corpus in 
 the meantime, and without a settlement, her second husband's 
 rights will exist over it.^ 
 
 A woman may on marriage renounce her separate use, but the A woman on 
 evidence must be clear that she voluntarily gives up such an™^^oe™*^ 
 important right ; and the Court will not readily assume that she separate use. 
 intended to give it up.' Thus, it would never allow a female 
 infant on marriage to renounce the separate use in property 
 belonging to her.' 
 
 This question of the ambulatory nature of the separate use Whether 
 cannot arise in the case of marriages taking place after the marriage may 
 Married Women's Property Act, 1882, came into force, for by ^"^g^^""™''^ 
 the operation of that statute a separate interest in her own pro- use. 
 perty existing, or to come into existence, is created at the 
 moment of marriage ; ' and a limitation of the separate use to a 
 
 ^ Anderson v. Anderson, 2 Myl. & K. 427. 
 
 ° See Hayes, Conv. 500-541. ' i Beav. i. 
 
 * See HawTies v. Hvhbach, L. E. 4 Eq. 5. 
 
 " Moore v. Morris, 4 Dr. 33 ; Benson v. Benson, 6 Sim. 126. 
 
 * Macq. H. & W. 343. ' Johnson v. Johnson, i Ke. 648. 
 
 * Sect. I, sub-s. I ; ss. 2 & 5. 
 
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350 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 particular coverture would not on the termination of that cover- 
 ture, and the woman's subsequent marriage, prevent the statutory- 
 separate use attaching to her property. There is, however, 
 nothing in this Act, it is submitted, to prevent a single woman 
 on marriage, or a married woman during coverture, making a 
 valid renunciation of her separate use ; and the property which 
 belonged to her at the date of marriage, or was afterwards 
 acquired by her, and was capable of being disposed of by her, 
 would in such a case come under the marital control. This 
 power would seem to be exercisable equally over the property 
 settled by the act of the parties as over that settled by the 
 operation of the law, which she was not restrained from alienating 
 or anticipating. Of course her ante-nuptial creditors could 
 follow it in her husband's hands, but her legal personal repre- 
 sentatives, or her heirs, could lay no valid claim, to it ; indeed, 
 her capacity for so disposing of her property is increased rather 
 than diminished under the Act. The adultery of the wife was 
 never held to affect her rights over property settled to her 
 separate use,' and a fortiori since the Act cannot affect them. 
 
 Section 2. 
 
 Statutory Extension of the Separate Estate, 
 
 statutory 
 extension of 
 the separate 
 estate. 
 
 Protection 
 order. 
 Effect of. 
 
 Before proceeding further to discuss the nature and incidents 
 of separate estate, its extension by various statutes will be 
 noticed. The growth of statutory separate property is of very 
 recent date in this country, and is contained in six statutes, viz., 
 the three Acts of 1857, 1858, and 189S, dealing with divorce 
 proceedings, and the Married Women's Property Acts of 1870, 
 1882, and 1893. The contents of these statutes will here be 
 shortly summarized. 
 
 a. By the Act to amend the law relating to divorce and matri- 
 monial causes,^ a wife who was deserted by her husband might, 
 at any time after such desertion, apply to the proper persons ' for 
 an order to protect her money or property acquired by her own 
 lawful industry. If she obtained such protection order, she was, 
 and was deemed to be, during the continuance thereof, in the like 
 position in all respects, with regard to property and contracts and 
 
 ^ Seagrave v. Seagrave, 13 Ves. 443. ^ 20 & 21 Vict. c. 85. 
 
 ^ If resident within the metropolitan district to a metropolitan police magistrate, if 
 resident in the country to the justices in petty sessions ; and by 21 & 22 Yict. c. 108, 
 B. 6, in either case to the Judge Ordinary (now the President of, or a judge attached 
 to, the Prohate, Divorce, and Admiralty Division of tlie High Court). 
 
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CHAP. XV.] SEPARATE ESTATE. 351 
 
 suing and being sued, as if she had obtained, under the Act, a 
 decree of judicial separation.' Judicial separation under this Act Married 
 constituted the woman (as long as it lasted) a feme sole with ^^^s^pirated 
 respect to property of every description acquired by or devolving '^*''®P°^j^J°" 
 upon her,^ also for the purposes of contract, and in respect of 
 wrongs and injuries,^ and of suing and being sued in any civil 
 proceeding.* If a wife was possessed of choses in action or 
 reversionary interests, which were not reduced into possession by 
 her husband, and she obtained an order for protection, such pro- 
 perty became hers absolutely, and her husband's interest in it was 
 gone ; ^ and any dealings with it on his part, whether by way of 
 sale or mortgage, were ineffectual to give any title to his 
 assignees ; " and resumption of cohabitation, apart from any 
 agreement between the spouses, did not alter the position of the 
 parties.' This privilege was conferred in order to protect the 
 hardly won earnings of the humbler classes who could not afford 
 to come to the divorce court for a judicial separation. The 
 desertion on the part of the husband must be unlawful, unjusti- 
 fiable, and permanent ; but the property of the married woman, Property 
 to be protected, must be acquired by her lawful industry ; thus, be°acquire^ by 
 her gains by living in adultery, or by keeping a brothel, will not '/■^"^ ' j' ., 
 be protected.' The protection order has a retrospective effect, order retro- " 
 extending back to the commencement of the desertion,' but does sp^*'*'^^- 
 not affect property acquired by the married woman before the 
 desertion ; '° and any restraint imposed on such property by a 
 pre-existing settlement must have effect given to it." But pro- 
 perty acquired after the date of the decree for separation and 
 during separation is not within a covenant to settle after-acquired 
 property during coverture.'^ Where there is no settlement, a 
 married woman may have money paid out of court to her ; " but 
 the decree of judicial separation or protection order does not 
 affect the validity of existing settlements. The will of a married 
 woman so protected is capable of passing property acquired by 
 her during the desertion which is the foundation of the order for 
 protection." In fine, the position of a feme sole is conferred upon 
 
 1 Sect. 21. 2 Sect. 25. 
 
 ^ Samsden v. Brearley, L. E. 10 Q. B. 147. * Sect. 26. 
 
 5 Johnson v. Lander, L. E. 7 Eq. 228 ; Be Coward and Adam's Purchase, L. E. 
 20 Eq. 179 ; Be Emery's Trusts, 50 L. T. 197. 
 
 ° Be Insole, L. E. i Eq. 470 ; Be Emery's Trusts (ubi sup.). 
 ' Be Emery's Trusts {uhi sup.). 
 
 8 Mason v. MitcUU, 3 H. & 0. 528. 
 
 9 Be The Goods of Ann Elliott, L. E. 2 P. & D. 274. 
 
 10 Waite v. Morland, 38 Ch. D. 135 ; Bill v. Cooper, [1893] 2 Ch. 85, 
 
 w Waite V. Morland {ubi sup.). 
 
 1^ Dawes r. Creyhe, 30 Ch. D. 500. ^^ Ewart v. Chubb, L. E. 20 Eq. 454. 
 
 " In The Goods of Ann Elliott, L. E. 2 P. & D. 27. 
 
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352 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 21 & 22 Viot, 
 0. io8. 
 Property to 
 whicli wife 
 entitled as 
 executrix, 
 admimstratrix, 
 or trustee. 
 
 Summary 
 Jurisdiction 
 (Married 
 Women) Act, 
 
 Conviction of 
 husband of 
 aggravated 
 assault on 
 wife, &c. 
 
 the married woman until the order is reversed or discharged.' 
 The husband or any of his creditors, or other person claiming 
 under him, may move to have the order discharged.^ When the 
 wife returns to cohabitation with her husband all such property 
 as she may be entitled to when such cohabitation shall take place, 
 shall be held to her separate use, subject, however, to any agree- 
 ment in writing made between herself and her husband while 
 separate.^ 
 
 b. By the Act of 1858 amending the Divorce Act of the pre- 
 vious year,^ the eifect of a decree for judicial separation, or an 
 order for protection, was extended to property to which the wife 
 became, or should become, entitled as executrix or administratrix, 
 or trustee since the sentence of separation or the commencement 
 of the desertion,* Persons or corporations making payment to 
 married women under orders of protection which have been dis- 
 charged, reversed, or varied, or after the cesser of the separation, 
 are to be protected and indemnified.'' Under an order a married 
 woman may obtain payment to herself of money in court,' or in 
 the hands of trustees,' though it is given to her separate use 
 without power of anticipation ; ^ and as executrix she may 
 transfer stock standing in the name of her testator in the books 
 of the Bank of England, and receive dividends as if she were a 
 single woman.'" 
 
 c. Under the Summary Jurisdiction (Married Women) Act, 
 189s," a married woman whose husband shall have been con- 
 victed summarily of an aggravated assault upon her or upon 
 indictment of an assault upon her, and sentenced to pay a fine 
 of more than £i, or to a term of imprisonment exceeding two 
 months, or who has deserted her, or has been guilty of per- 
 sistent cruelty to her, or has wilfully neglected to provide 
 reasonable maintenance for her or her infant children, whom he 
 is legally liable to maintain, and has by such cruelty or neglect 
 caused her to leave and live separately and apart from him, 
 may apply to a court of summary jurisdiction acting in the 
 district in which the husband shall have been convicted, or the 
 cause of complaint arisen '^ for an order (inter alia) containing a 
 
 1 20 & 2r Viot. c. 85, s. 21 ; 21 & 22 Vict. u. 108, s. 8. 
 
 ^Ibid.«. 21. ^lbid.B.25. 
 
 « 21 & 22 Vict. 0. 108. ^ Sect. 7. ^ Sect. 10. 
 
 ' Se Kingsley's Trusts, 26 Beav. 84 ; Be Baimdon's Trusts, 4 Dr. 446. 
 
 8 Cooke V. IWler, 26 Beav. 99. * Ibid. 
 
 i» Bathe v. Bank ofBJngland, 4 K. & J. 564. 
 
 " 58 & 59 Viot. 0.39, repealing 41 Vict. 0, 16, s. 4 ; and 49 & 50 Vict. 0. 52. 
 
 ^2 Sect. 4; If the husband is convicted on indictment, the Court before whom he is 
 convicted becomes, for the jmrposes of this Act, a court of summary jurisdiction. Ibid, 
 proviso. 
 
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CHAP. XV.] SEPARATE ESTATE. 363 
 
 provision that she be no longer bound to cohabit with him, and 
 that he makes her a weekly allowance. This provision while in 
 force shall have the effect in all respects of a decree of judicial 
 separation on the ground of cruelty.' The jurisdiction to grant 
 a judicial separation against the husband for an aggravated 
 assault would now seem to depend upon the Court fining or 
 imprisoning him.'' But the wife can obtain a like order on 
 proof of her complaint of other matrimonial misconduct on his 
 part.' 
 
 The adultery of the wife, unless condoned or connived at or 
 conduced to by the husband's wilful neglect or misconduct, dis- 
 entitles her to an order.^ The resumption of cohabitation after 
 an order of judicial separation under this Act annuls the order for 
 payment of the allowance, in like manner as an order of judicial 
 separation pronounced by the High Court is annulled by the 
 resumption of cohabitation by the parties ; * and where the wife 
 again leaves her husband she cannot enforce the payment of the 
 allowance.' The presumption of non-access of husband and wife 
 dates from the time of making the order, as in the case of a 
 judicial separation pronounced by the Divorce Court ; ' and on an 
 application to vary an order on account of the wife's adultery, 
 evidence, whether that on the part of the husband or the wife, in 
 proof of the paternity of a child born nine months after the 
 separation is receivable.* 
 
 It was held under the earlier Act that hearing the case of Procedure, 
 assault and ordering the husband to pay the wife an allowance 
 formed one proceeding, and the Court after convicting him could 
 not hear evidence as to his means ; " but it would now appear 
 that the wife after • convicting the husband of an aggravated 
 assault may apply for a summons for an order under this Act, 
 which is to be issued and made returnable immediately upon the 
 conviction." This would enable the husband to call evidence as 
 to his means, for the application for the order would be a 
 separate proceeding. Any application to vary or discharge an 
 order made under this Act must be made to a court of summary 
 jurisdiction of the district in which the original order was made;" 
 and such court has power to alter, vary, or discharge any such 
 order. Appeals under the Act lie from any order or refusal of Appeals. 
 
 ' Sect. 5 (a and c). ^ gg^j ^_ Woods v. Woods, lo P. D. 172, overruled. 
 
 ' Sect. 4. * Sect. 6. ^ Sect. 7. 
 
 « Haddon v. Haddon, 18 Q. B. D. 778. 
 ^ ffetherington v. Setherington, 12 P. D. 112. 
 8 Setherington y. Setherington {uhi sup.). 
 
 » Powell V. Powell, 14 P. D. 177. ' " Sect. 8. 
 
 1^ Sect, 7. This includes orders made uader the repealed Acts, 41 Vict. c. 19, s. 4, 
 and 49 & 50 Vict. u. 52. 
 
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354 HUSBAND AND WIFE. [part i. 
 
 any order by a court of summary jurisdiction to the Probate, 
 Divorce, and Admiralty Division of the High Court ; ' but such 
 can only be made as to the order for separation and maintenance, 
 and not as regards the conviction by the Court of Summary 
 Jurisdiction,^ The High Court has no jurisdiction to enforce an 
 order for payment of an allowance by injunction ; " the method 
 of enforcing payment is the same as that for enforcing pay- 
 ment of money under an order of affiliation.'' If the Court of 
 Summary Jurisdiction thinks that the questions between the 
 parties can be more conveniently dealt with by the High Court, 
 it may refuse to make an order under the Act, and in such 
 case no appeal lies from its decision/ But the High Court, 
 or a judge thereof, may, in proceedings relating to the same 
 subject-matter as that of the application for an order, direct 
 the Court of Summary Jurisdiction to rehear and determine 
 the same.* 
 
 Since the Married Women's Property Act, 1882, there is no 
 necessity for the granting of protection orders for the safeguard- 
 ing of a married woman's property ; and the only real ground 
 for preserving them is to exclude the marital interest in the wife's 
 property on her death intestate ; for it is to be noticed that the 
 position of a married woman judicially separated is that of a 
 feme sole, and her interest in and powers over her property 
 are not the same as those conferred upon her by the Court 
 of Chanpery ; for the equitable separate estate ceases on 
 her death, and if she die without having disposed of it, her 
 husband's right over it arises, and he takes it either Jv/re mariti, 
 or after taking out letters of administration to her estate ; but 
 in the case of a woman judicially separated dying intestate, 
 administration will not be granted to her husband but to her next 
 of kin.' 
 M. w. p. Act, d. In 1870 the Act known as the Married Women's Property 
 ^ '°' Act* was passed. It was an important piece of legislation ; but 
 
 it was more important as containing the germ of the more recent 
 Act than for the large changes it wrought in the law. It was 
 passed with a desire to amend the law of property and contract 
 with respect to married women. It largely extended their 
 " statutory separate property," that is, certain classes of property 
 stamped by the Legislature with the attributes and incidents of 
 separate estate, which, but for that interference, would not have 
 
 1 Sect. II. ^ Lemn y. Leviin, [1891] P. 254. 
 
 ■i <?ffle«T. Gt7i«tt, 14P. D. 158. ' Sect. 9. ^ t rr ^ 
 
 » Sect. 10. ^ 1^^- Se^-Foulkes v. Foulhes, 69 L. 1. 461. 
 
 ' In The Goods of Worman, 29 L. J. P. M. & A. 164. 
 ' 33 & 34 Vict. c. 93. 
 
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CHAP. XV.] SEPAEATE ESTATE. 355 
 
 been so impressed, because equity was unable to intervene 
 and modify the common law rights of the husband over 
 them. 
 
 Its effect was as follows : it created a separate use in the Effect of the 
 wages and earnings of married women acquired by them in any (.i^ggg^ of'^'°"^ 
 employment, occupation, or trade in which they were engaged property. 
 separately from their husbands, and in money or property acquired 
 by them through the exercise of any literary, artistic, or scientific 
 skOl, and all investments of such wages or earnings;' also in 
 their deposits in savings banks,^ their property in the funds,' or 
 in joint-stock companies to the holding of which no liability 
 attached,^ shares, &c., in certain benefit societies to which they 
 might be entitled before their marriage.^ But in regard to the 
 four last classes of property provisions were inserted protecting 
 the rights of husbands and their creditors under certain circum- 
 stances.^ It also created a separate use in personal property 
 without restriction as to nature or value devolving ah intestato on 
 a woman married after the passing of the Act, and in sums of 
 money not exceeding ;^200 to which she might become entitled 
 under any deed or will;' also in the rents and profits of any freehold, 
 copyhold, or customary freehold descending upon her as heiress 
 or co-heiress,^ but this interest does not enable her to dispose of 
 the fee simple without a deed acknowledged;' also in policies of 
 insurance effected by them on their own lives or the lives of their 
 husbands for their separate use.'" This Act also conferred new 
 remedies at law for the protection of her separate property, not 
 only as regards third persons, but also her husband ; thus, it 
 enabled a married woman to maintain actions, that is, actions at 
 law, in her own name for the recovery of wages, earnings, money, 
 and property declared by the Act to be her separate property, or 
 property belonging to her before marriage, which her husband 
 shall by writing have agreed with her shall belong to her after 
 marriage as her separate property." It also confers upon her 
 the like remedies, civil and criminal, for the protection of her 
 property which she would have possessed if umarried.'^ In return 
 for these increased rights^ a married woman was rendered liable 
 for her ante-nuptial debts ;'^ even where she took land as devisee 
 of a testator which was liable for his unpaid debts, and which 
 
 1 'Sect. I. 2 Sect 2. s Sect. 3. 
 
 * Sect. 4. _ 5 Sect. 5. 
 
 *> See preceding Beotions, and eection 6. ' Sect. 7. " Sect. 8. 
 
 ^ Johnson v. ^hnson, 35 Ch. D. 345. ^'' Sect. 10. 
 
 ^1 Sect. II. Summer IS v. City Bank, L. E. 9 C. P. 580. 
 
 ^'■' IHd. Sanger t. Sanger, L. K. 11 Eq. 470 ; London and Provincial Bank v. 
 Bogle, 7 Ch. D. 773. 
 
 w Sect. 12. Axford v. Beid, 22 Q. B. D. 548. 
 
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356 HUSBAND AND WIFE. [part i. 
 
 land may have been settled on her marriage without a restraint 
 upon anticipation ; ' and her husband was exonerated from all 
 liability in respect of them, and remained only liable for her 
 ante-nuptial torts.^ She was also rendered liable, if she had 
 separate property, to support her husband,' and her children," 
 who had become chargeable to the parish, though in the case of 
 the latter the primary liability of the father to maintain them 
 was not affected. The general effect of this Act was summed up 
 by the late Sir George Jessel in the case of Howard v. Bank of 
 Eyigland:" " It does appear to me that the present Act gives no 
 power to contract to a married woman which she did not possess 
 before. It does make certain property property to her separate 
 use, to that extent carrying with it a power to contract in respect 
 of that property which every married woman previously possessed 
 in a court of equity, and it superadds to that certain remedies in 
 a court of law which it is considered desirable to give to the 
 married woman in respect of these small sums (that is, sums 
 under ;^20o), but beyond that I think the Act makes no altera- 
 tion in the position of the married woman." 
 M. w. p. Act, The amending Act of 1874^ was passed to render husbands 
 Act, 1874. liable for their wives' ante-nuptial torts, breaches of contracts. 
 Partial lia- and debts to the extent of the property or assets acquired by 
 ban/ for wife's tbem jure mariti ; but to limit their liability to the extent of the 
 r'^b'iT^*'"' assets so acquired by them.' The assets in respect of which 
 they were to be liable are set forth.' This Act was passed on 
 the principle that the husband ought not to receive property in 
 his marital right which should in strict justice be devoted to the 
 satisfying the claims of his wife's ante-nuptial creditors ; and 
 that his liability for her ante-nuptial torts should be placed on 
 the same footing as his liability for her ante-nuptial debts. His 
 responsibility is exactly proportioned to the amount of his wife's 
 property received by hipa ; and if on marriage he does not receive 
 anything in right of her, he is not liable for the debts incurred 
 or torts committed by her before marriage.' 
 M. W. P. Act, e. The legal relations of a married woman to her property are 
 ^^^^' now defined and settled by the Married Women's Property Act, 
 
 General scope 1882,'° which was an Act to amend and consolidate the Acts 
 of 1870 and 1874, which are repealed by it, save so far as 
 rights and liabilities accrued under them are preserved. Its^^ro- 
 
 1 Me Hedgely , Small v. Eedgely, 34 Ch. D. 379. 
 
 2 Effect of sect. 12. " Sect. 13. f lUd. 
 " L. E. 19 Eq. 29s, 301. « 37 & 38 Vict. 0. 50. 
 ' Sects. 1-4. See Downe v. Fletcher, 21 Q. B. D. u. 
 * Sect. 5. See ante, chap. xiii. pp. 259 e.t seq. ' Sect. 3. 
 " 4S & 46 Vict. 0. 75. See post, Appendix, p. 409. 
 
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 and effect, 
 
CHAP. XV.] SEPARATE ESTATE. . 357 
 
 visions affect England and Ireland, but not Scotland. Its effect 
 is wider and more sweeping than that of the Act of 1 870. The 
 Act is in many ways a new departure. 
 
 A married woman is now capable, in accordance with the pro- jian-ied 
 visions of the Act, of acquiring, holding, and disposing, by will ^f^Ming^*'''^ 
 or otherwise, of any real or personal property, as if she were a property and 
 
 ,. . niAii 1 T contracting as 
 
 feme sole, without the intervention 01 a trustee.' All real and a. feme sole. 
 personal property belonging to her at the time of marriage, or 
 acquired by or devolving upon her after marriage, shall be the 
 separate property of every woman married after December 31, 
 1882.' All real and personal property, her title to which, -A^ct in part 
 
 . . retrospective. 
 
 whether vested or contingent, and whether m possession, rever- 
 sion, or remainder, accrues on or after January l, 1883, to a 
 woman married before that date shall be her separate property, 
 and at her disposal.^ If she had testamentary capacity and 
 separate estate before the Act came into force, and made a will 
 before that date and died in her husband's lifetime, her will was 
 efficacious to pass all separate property she might acquire under 
 the Act.* But she can only dispose of it by will in accordance 
 with the provisions of the Act ; and property acquired by her 
 before the Act came into force cannot pass by her will, unless it 
 is republished after her husband's death.^ Though this section is 
 in some respects retrospective, it applies only to property of a 
 married woman whose title to which accrues for the first time 
 after the commencement of the Act.' The words in this section, 
 " whether vested or contingent, and whether in possession, rever- 
 sion, or remainder," do not refer to five different kinds of accruer, 
 but to the different kinds of title which, when it accrues after the 
 commencement of the Act, are affected by the section.' A mere 
 spes siiccessionis is not a title to property recognized by English 
 law, and a woman who_ was married before the Act, who has a 
 mere spes siiccessionis to property, as one of a class of possible next 
 of kin, has not a contingent title within the meaning of this 
 section .' 
 
 Her deposits in the Post Office or other savings bank, or in 
 any other bank, annuities, government, or otherwise, sums form- 
 
 ^ Sect. I, sub-s. I. 
 
 ^ Sect. 2. See Be Onsloio, Plowden v. Gayford, 39 Ch. D. 622. 
 
 * Sect. 5. '' Se Somen, James v. James, [1892] 2 Ch. 291. 
 ' Be CuTw, Mansfield v. Mansfidd, 43 Ch. D. 12. 
 
 * Be Tucker, Emmanuel v. Parfit, 54 L. J. Ch. 874 ; Be Adames' Trust, 54 L. J. 
 Ch. 878; Be Hohson, Webster -n. Bickards, 55 L. J. Ch. 300; Beid v. Beid, 31 Ch. 
 D. 402. The following cases on this point have been overruled and are no longer law : 
 Baynton v. CoUins, 27 Ch. D. 604; lie Thompson and Curzon, 29 Ch. D. 177 ; Be 
 Hughes' Trusts, W. N. 1885, p. 62 ; Be Dixon, Dixon v. Smith, 54 L. J. Ch. 964. 
 
 '■ Beid v. Beid (uhi sup.). 
 
 ' Be Parsons, Stockleyy. Parsons, 45 L. J. Ch. 51. 
 
 # 
 
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358 HUSBAND AND WIFE. ' [parti. 
 
 ing part of the public stocks or funds, and all shares, stock, de- 
 bentures, debenture stock, or other interest of or in any corpora- 
 tion, company, or public body, municipal, commercial, or otherwise, 
 or of or in any industrial, provident, friendly, benefit, building, 
 or loan society, which were standing in a married woman's name 
 on January i, 1883, shall be presumed, until the contrary be 
 shown, to be her separate property ; ' and the same presumption 
 holds good with reference to deposits, &c., transferred to her after 
 marriage ; ' and also to investments ^ and stock,* &c., standing in 
 the joint names of a married woman and others, except her 
 husband. If a married woman has made a fraudulent investment 
 with money belonging to her husband, he can reclaim his pro- 
 perty.' 
 Liability of A married woman may enter and render herself liable in 
 
 woman on her I'^sp^ct of and to the extent of her separate property or any 
 contracts. contract, and of suing and being sued in contract or in tort, as if 
 she were a feme sole, and her husband need not be joined with 
 Married her as plaintiff or defendant." A contract entered into by a 
 
 faract.^^nS'^' ^^I'^'i^d woman shall now, primd facie, be deemed to be entered 
 fade, is one in jnto in respect of her separate property ; ' and shall bind not 
 
 respect of ner ^ '^ -iT-i 
 
 separate Only the property she has at the date of the contract, but that 
 
 prope y- which she may subsequently acquire.' The Act is not retro- 
 spective as to her contracts and engagements ; ' and any judg- 
 ment against a married woman on a contract made before the 
 Act could only be enforced against such property as she possessed 
 at the date of the contract and judgment.'" If she carry on a 
 trade apart from her husband, she becomes subject to the bank- 
 ruptcy laws." If she make a loan to her husband of her pro- 
 perty, she will be postponed till his other creditors have been 
 paid in fnll.'^ A married woman may effect a policy of assur- 
 ance on her own life, or the life of her husband, for her separate 
 use.'^ A married woman as executrix or administratrix, alone 
 or jointly, or as trustee alone or jointly, may sue or be sued, or 
 transfer propertly belonging to her in her representative capacity 
 Civil and without her husband, as if she were a fejne sole.^* She has 
 medies against civil and Criminal remedies (which she can bring alone) against 
 
 husband and 
 
 strangers. 
 
 1 Sect. 6. 2 Sect. 7. s Sect. 8. 
 
 * Sect. 9. = Sect. 10. 
 
 ^ Sect. I, sub-s. 2. See Oox v. Bennett, [1891] I Ch. 617. 
 
 ' Sect. I, Bub-s. 3 ; repealed by Married Women's Property Act, 1893. See^ost, 
 
 .363. 
 " Ibid, sub-s. 4 ; repealed by Married Women's Property Act, 1893. See post, 
 
 363- 
 
 * Davies v. Stanford, 61 L. T. 234. 
 
 1° Turnhull v. Forman, 15 Q. B. D. 234 ; Davies v. Stanford {uhi sup.). 
 " Ibid. Bub-s. 5. ^' Sect. 3. " Sect. 11. " Sect. 18. 
 
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CHAP. XV.] • SEPARATE ESTATE. ;i.5!) 
 
 strangers, for the security and protection of her property ; ' she 
 has also civil remedies against her husband, and can sue him for 
 a tort done to her separate property ; and can even prosecute 
 him criminally for an act which amounts to a larceny of her 
 property when deserting or about to desert her ; ^ and she is 
 correspondingly liable to criminal proceedings where she commits 
 an act amounting to larceny of her husband's property when 
 leaving or about to leave him.^ A woman after marriage con- 
 tinues liable for her ante-nuptial liabilities in contract or tort ;■* 
 and her husband is liable for the same to the extent of all pro- 
 perty whatsoever belonging to his wife which he shall have 
 acquired or become entitled to from or through her;" and 
 husband and wife may be jointly sued in respect of any such 
 ante-nuptial Uability ; and judgment may be given against the 
 husband to the extent of the assets received by him in right of 
 his wife.^ Any debts or liabilities incurred by her will now be 
 barred by analogy to the Statute of Limitations.' Any questions settlement of 
 between husband and wife as to property are to be settled in a tweenimsbaiid 
 summary way, by application to a judge of the High Court of ^^^ "^^^ *s to 
 Justice in England or in Ireland, or to a county court judge in 
 England, or chairman of the civil bill court in Ireland.* Exist- 
 ing settlements between husbands and wives are preserved, and 
 the power to make future settlements is expressly reserved.; 
 restraint upon anticipation is preserved, except that a woman on 
 marriage cannot deprive herself of the right to alienate her pro- 
 perty so as to defeat her ante-nuptial creditors.^ A married Liability of 
 woman is now liable, if she have separate property, for the ^oman for 
 maintenance of her husband, if he becomes chargeable to the maintenance of 
 
 ° nusband, &o. 
 
 parish ;'° and for the maintenance of her children and grand- 
 children." The legal personal representative of a married 
 woman shall, in respect of her separate estate, have the same 
 rights and liabilities, and be subject to the same jurisdiction as 
 she would be if she were living.''' 
 
 The general result of the law on this subject now is that a 
 married woman is absolutely independent of her husband in 
 regard to her property; she can deal with it and dispose 
 of it as she pleases, and can even exclude and restrain him, at 
 
 1 Weldon v. De Bathe, 14 Q. B. D. 339. 
 
 2 Sect: 12. 3 Sect. 16. * Sect, 13. 
 " Sect. 14. _ •* Sect. 15. 
 
 ' JRe Hastings, Hallett v. Eastings, 35 Ch. D. 94. 
 
 8 Sect. 17. See Phillips v. Phillips, 13 P. D. 228. 
 
 ' Sect. 19. See Jay v. Edbinson, 25 Q. B. D. 467. 
 ^^ Sect. 20 ; see ante, p. 257. ^^ Sect, 21 ; see ante, p. 257. 
 
 12 Sect. 23. 
 
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360 HUSBAND AND WIFE. [part i. 
 
 least by interim injunction pending divorce proceedings, from 
 entering into a house belonging to her in which she is living.' 
 The Act does not take away from a husband who was married to 
 his wife previously to its commencement any property which may, 
 under the old law, have come to him jitre mariti, but only pre- 
 vents his right from attaching and being exercised over property 
 of his wife, whose title to it shall accrue after the date of its 
 operation. It also prevents, in the case of spouses married after 
 it came into force, the marital right attaching in the future to 
 any property acquired by married women. The full benefit of 
 the Act will not in all cases be experienced by women married 
 before its commencement in respect of property which accrues 
 to them after its commencement. Thus, where on their marriage 
 they have covenanted to bring into settlement property above a 
 certain amount and not settled to their separate use, and after 
 the commencement of the Act property above the specified 
 amount comes to them by deed or will, without any direction 
 that it should be to their separate use, they are bound by their 
 covenant to bring it into settlement, and their trustees are 
 entitled to claim it, because though the fifth section of the Act 
 attaches to such property the statutory separate use, yet section 1 9, 
 which preserves existing settlements, overrides the effect of the 
 earlier section.^ 
 How far status At a rough glance this Act would seem to render a married 
 woman altered, woman perfectly free and independent of her husband, and to 
 clothe her in every respect with all the powers and freedom of a 
 single woman. But on closer inspection this will be found not 
 to be the case, but that she has by the statute a power exercis- 
 able by her over all kinds of property, which formerly could only 
 be exercised by her in respect of property which was recognized 
 by equity to be her separate property, or in respect of limited 
 classes of property made separate estate by the legislation of 
 1870; in return for these extended powers her liabilities are 
 Difference in considerably enlarged. Its effect is not so far-reaching as that of 
 married woman the Divorce Act of 1 8 5 7 in constituting the married woman who 
 separated and ^^ judicially separated a feme sole. That Act^ goes to the length 
 under the Act. of providing that on the death of a married woman who is 
 judicially separated, her property shall, in case she die 
 intestate, go as it would have gone if her husband had heen then 
 dead, — that is, his marital rights were abrogated in toto ; and 
 neither during her life nor after her death had they any exist- 
 ence. The reason of this is not far to seek ; the misconduct of 
 
 1 Symonds v. Hallett, 24 Ch. D. 346. ^ jj^ Stonor's Trusts, 24 Oh. D. 195. 
 
 ^ Sect. 25. See ante, p. 233. 
 
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CHAP. xy.J SEPARATE ESTATE. 361 
 
 the husband has caused the wife to separate from him ; and on 
 
 the judicial separation the matrimonial tie becomes in abeyance ; 
 
 neither spouse has any enforceable claim to the society of the 
 
 other during its continuance ; outside any specific contract 
 
 between the parties, the one has not any pecuniary claim on the 
 
 other; each is irresponsible for the acts and liabilities of the 
 
 other, — and where the husband was at fault it was thought only 
 
 just that, on the death of the wife intestate, he should not be 
 
 allowed to exercise his common law rights over her property, 
 
 which during her life he could not claim as his own. There is Bffeot of 
 
 no such provision in the present Act, and that would well ^s^iu^itfd'*' 
 
 warrant the inference that its effect was intended to be limited to t" coverture. 
 
 the coverture or lifetime of the spouses ; and that on the decease 
 
 of the wife intestate, the husband's marital rights, as heretofore, 
 
 will arise (with a modification elsewhere noticed),' over his wife's 
 
 undisposed-of property ; but should she at the time of her death be 
 
 judicially separated, his rights over such property would be taken 
 
 away by force of the above provision of the Divorce Act of 1857. 
 
 Again, the change effected by this Act is limited to a married Wife's matri- 
 
 , . , • v i. T J. ii 1 1 J. • -1 monial status 
 
 woman s proprietary rights, and to those alone ; her matrimonial not affected, 
 status is not affected — the common law right of the husband to 
 her society and comfort remains ; he is still the head of the 
 family, and he it is who chooses and can change the matrimonial 
 domicil. She is just as much bound to render him respect and 
 regard as he is bound to support and protect her. It is when 
 the question of property is touched that the interests of the two 
 diverge. His marital rights are in abeyance during coverture. 
 She can acquire and hold property without a trustee, and apart 
 from him, as though she were single. As regards her contractual 
 powers, she might enter on any contract, provided she possessed 
 free separate property at the date of its inception ; ^ but property 
 subject to a restraint against anticipation is not property in 
 respect of which she can make a valid contract.^ She may sue Capacity for 
 or be sued either in contract or in tort, or otherwise, as though b^| l^^^ 
 she were single, and her husband need not be joined with her as *^°''^' 
 . plaintiff or defendant — but the reason for this is plain, indeed 
 follows in the same section after the conferring of her new 
 capacity; it is that the result of the action in which she alone 
 is concerned, whether as plaintiff or defendant, affects her pro- 
 perty — if she succeed, what she recovers is her separate pro- 
 
 '■ See ante, p. 234. 
 
 2 King v. Lucas, 23 Ch. D. 112; PaLliser v. Ourney, 19 Q. B. D. 519; Be 
 Shakspear, Deakin v. Lahin, 30 Ch. D. 169. 
 
 2 Harrison v. Harrison, 13 P. D. 180 ; Leake v. Driffield, 24 Q. B. D. 98 ; Braun- 
 stein V. Lewis, 65 L. T. 449. 
 
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362 HUSBAND AND WIFE. [paut i. 
 
 perty ; if she is cast, her separate property is to make good the 
 damages or costs ; thus, oither way the husband has no interest 
 in the proceedings. She has certainly increased liabilities 
 thrown upon her, but these are all connected with the enlarged 
 powers over property possessed by her ; she may be made a 
 bankrupt in respect of her separate trading ; she is liable under 
 Kestraint upon certain circumstances to support her husband and family. There 
 stiiiexTstsdiir- is One important matter which shows that the Act stops short of 
 ing coverture, pitting her Completely in the position of a single woman. 
 Section 19 permits restraint upon anticipation or alienation to 
 be validly imposed upon her in the future as in the past. Now, 
 if it had been intended to confer upon a married woman absolute 
 right and power over her property at all times and under all 
 circumstances, this restraint would have been omitted from the 
 Act as being inconsistent with its scope and intention. This 
 restraint cannot be annexed to an absolute gift to a man, or a 
 single woman (except to spring into existence on her marriage), 
 and would be futile if it were ; for on the property coming into 
 possession he or she could at once exercise complete dominion 
 over it.' But now, as formerly in the case of a married woman, 
 it is permitted to last during the accustomed period, viz., 
 coverture. From this fact it may well be argued that it was not 
 intended to constitute a married woman a feme sole to all intents 
 and purposes. The intention of the Legislature was no doubt to 
 increase the rights of a married woman to her property as against 
 her husband, and at the same time to protect the interests of the 
 creditors with whom she might have dealings, enabling them to 
 get at property which otherwise they could not touch. But it is 
 possible that both these ends may not be fully attained ; for if 
 she is not restrained from anticipating her property, she is 
 absolute mistress of it, and the husband may by his influence 
 induce her to surrender it up to him ; if she is restrained from 
 anticipating it, it is safe from her husband ; but, though she is 
 nominally possessed of separate property, her post-nuptial creditors 
 will be precluded from attaching or charging it in satisfaction of 
 their debts and claims.'^ 
 M. W. P. Act, /. Under the Married Women's Property Act, 1893,^ ^®^ ^^n- 
 E^s'tenceof ti'^ctual powers are still further increased, and the liability of 
 free separate her separate property to make good her engagements is also 
 
 property not . ^^ tt . i • .• , i 
 
 necessary to increased. UniesB she is acting as an agent her contract is 
 contrad;." deemed to be made in respect to and to bind her separate estate, 
 
 ^ See -He Bosher, 26 Ch. D. 801. The nearest approach to such a limitation of 
 ownership would be by the constitution of a trust and a shifting use. 
 
 '^ fiee2'ost, pp. 378 et seq. ^ S6 & 57 Viot. yi. 63. Bee^ost, Appendix p. 417, 
 
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OHAP. xv.J SEPARATE ESTATE. 363 
 
 though she may not possess any at the time of the contract.' 
 These alterations in the law do in effect, and by direct provision, 
 repeal sub-sections 3 & 4 of section i of the Married 
 Women's Property Act, 1882.'' A contract on her part will 
 bind both her present and future property,' and will be enforce- 
 able by process of law against property she may be possessed 
 of while discovert, as well as that owned by her during 
 coverture ;' that is to say, property coming to her as a widow 
 may be taken to satisfy a liability contracted by her during 
 marriage. 
 
 The efficacy of the restraint against anticipation with the 
 qualification imposed upon it by section 19 of the Act of 1882 
 is preserved ;' save that where she institutes an action or pro- 
 ceeding unsuccessfully, the Court seized of her case may order 
 the payment out of her estate, subject to the restraint, the costs 
 of the opposite party, and may enforce it by the appointment of 
 a receiver or in some other way as may be just.' 
 
 Another important alteration has been effected by this Act, wiii of married 
 
 « T ., . . 'ii r 'J 1 woman need 
 
 for now under its provisions a will or a married woman speaks ^^t be re- 
 from her death. Formerly a will made by a married woman published 
 
 ■'^ ■' ^ while 
 
 during coverture who survived her husband carried only such discovert. 
 •separate property as she had testamentary disposition over at the 
 time of making it, but not property which she acquired while 
 discovert, unless she republished her will after her husband's 
 death ; ^ but now the will of a married woman made by her 
 during coverture, whether at the time of making it she is or is 
 not possessed of' any separate property, will not require to be 
 republished after her husband's death to carry subsequently 
 acquired property.' 
 
 Section 3. 
 
 Poiver of Disposition over the Separate Estate. 
 
 The power of a married woman to dispose of her separate Power of 
 -estate is that of a single woman, or a person sid juris, unless she ovOT°separate 
 happen to have a restraint upon alienation imposed upon her ; ^^t^'^- 
 and it must be borne in mind that this restraint has the same 
 efficacy now as it formerly had.' When equity gave a married 
 woman an interest in her property, unaffected by any marital 
 
 1 Sect. I (a). 2 Sect. 4. s Sect, i (h). 
 
 " Sect. 1 (c). '' Sect, i, proviso. ' Sect. 2. 
 
 '■ Willoch V. Xolle, L. K 7 H. L. Cas. 580. 
 
 ' Sect. 3. See post, pp. 370 et seq. 
 
 " See post, pp. 378 et seq. Except where it would defeat the claims of her ante- 
 nuptial creditors, or in the limited circumstauces provided for by section 3 of the 
 Married Women's Property Act, 1893, 
 
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364 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Division of 
 subject. 
 
 Disposition 
 inter vivos. 
 
 Eeal estate. 
 
 Unfettered 
 power to 
 dispose of 
 equitable fee. 
 
 right or control, it conferred upon her the jus disponendi in 
 respect of that property ; ' and it has been a long-established rule 
 that a feme covert, acting with respect to her separate property, 
 is competent to act in all respects as a feme sole.^ A married 
 woman, then, unless the intention that she shall not alienate is 
 evident (and such intention must be clearly expressed), is 
 entitled to deal with such property as she pleases, by acts, inter ' 
 vivos or by will.^ 
 
 This section will be thus divided : a. Disposition inter vivos — 
 (i) as to real estate ; (ii) as to personal estate, b. Disposition by 
 will — (i) as to real estate ; (ii) as to personal estate, c. Powers of 
 appointment. 
 
 a. Disposition inter vivos. — (i) Beat estate. A married woman 
 has long possessed the power of aliejaating the equitable interest 
 in her estates in fee so as to bind her heirs, and to defeat her 
 husband's interests, without his consent and the necessity of 
 having recourse to the process of levying a fine or suffering a 
 recovery, or a deed acknowledged under 3 & 4 Wm. IV. c. 74, 
 and without an express power of appointment ; and unless she 
 was restrained from anticipating she might dispose of and deal 
 with her property without the concurrence of her trustees.'' 
 This was so laid down in the case of Taylor v. Meads^ in 
 which a testator had devised real estate in fee to trustees upon 
 trust for a married woman for her separate use. Lord Westbury 
 there held that she had the power to dispose of it as a feme sole, 
 apart from the control and interference of her husband ; and 
 that if his consent or concurrence in the act or instrument of 
 disposition were required, the wife would be subjected to his 
 control and interference, a proposition which would be contrary 
 to the essence of the separate use. In the course of his judgment 
 his lordship remarked — "With regard to the question, upon which 
 there has been no decision in the court below, namely, whether 
 in a case where real estates are conveyed or devised to trustees 
 in fee, upon trust for the sole aijd separate use of a married 
 woman and her heirs, she has the same power of disposition by 
 deed or will over the equitable fee as she would have if she were 
 a /erne sole. Can she convey the equitable fee without the neces- 
 sity for the instrument being acknowledged in the manner required 
 by the Statute for the Abolition of Pines and Eecoveries? and can 
 she during coverture devise the equitable estate by a will executed 
 
 ^ Fettiplace v. Gorges, I Vesl 48. 
 
 ^ Peacock v. Monk, 2 Ves. Sen. 191 (decided 1750) ; Hvlme v. Tenant, 1 Bro. C. C. 16 
 (decided 1778). " Bich v. CockeU, 9 Ves. 369. 
 
 * Qrigly r. Cox, i Ves. Sen. 517. ^ 34 L. J. Ch. 203. 
 
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CHAP. XV.] SEPARATE ESTATE. 365 
 
 in conformity with the statute ? There is no difHoulty as to the 
 principle. When the courts of equity established the doctrine of 
 the separate use of a married woman, and applied it both to real 
 and personal estate, it became necessary to give the married 
 woman, with respect to such separate property, an independent 
 personal status, and to make her in equity & feme sole. It is of 
 the essence of the separate use that the married woman shall be 
 independent of and free from the control and interference of her 
 husband. With respect to separate property, the feme covert is, 
 by the form of trust, released and freed from the fetters and dis- 
 ability of coverture, and invested with the rights and powers of a 
 person who is sui juris. To every estate and interest held by 
 a person who is sui juris the common law attaches a right of 
 alienation ; and accordingly the right of a feme covert to dispose 
 of her separate estate was recognized and admitted from the 
 beginning, until Lord Thurlow devised the clause against antici- 
 pation.' But it would be contrary to the whole principle of the 
 doctrine of the separate use to require the consent or the concur- 
 rence of the husband in the act or instrument by which the wife's 
 separate estate is dealt with or disposed of. That would be to 
 make her subject to his control and interference." This was fol- 
 lowed by Lord Hatherley in Pride v. Buhh^ where real estate 
 had been vested in trustees for the separate use of a married 
 woman under the provisions of a deed of separation. The effect 
 of her conveyance operated as a direction to her trustees to 
 convey or hold the estate according to the new trust which is 
 created by her direction.' 
 
 The power of a married woman over the legal fee settled to her Legal fee. 
 separate use is the same as that over the equitable, and she may 
 dispose of it as though she were a single woman,^ and she need 
 not have recourse to the provisions of the statute for the Abolition 
 of Fines and Recoveries as amended by the Conveyancing and 
 Law of Property Act, 1882.* Real property acquired by a 
 married woman under the Married Women's Property Act, 1870, 
 is only in the nature of equitable separate estate, so that if she 
 desire to dispose of her legal estate in it inter vivos she must 
 conform to the legal method of procedure. By the Vendor and 
 Purchaser's Act, 1874," she was enabled to convey or surrender 
 any freehold or copyhold hereditament vested in her as a bare 
 trustee, as if she were a feme sole. 
 
 1 See Parhes v. White, 11 Ves. 209, 221. ^ L. R. 7 Ch. App. 64. 
 3 Taylor v. Meads, (vhi lup.). * Sail v. Waterlwuae, 13 W. R. 633. 
 
 5 45 & 46 Vict. c. 39, o. 7. See Be Drummond and Dame's Contract, [1891] 
 I Ch. 524. 
 
 « 37 & 38 Vict. c. 78, 8. 6. 
 
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366 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 ContiDgent 
 interests. 
 
 Pull power of 
 disposition 
 over real 
 fistate under 
 M. W. P. Act, 
 1882. 
 
 Life estate. 
 
 Personal 
 estate. 
 
 Reversionary 
 or contingent 
 interest. 
 
 There has been some conflict o£ opinion as to whether a 
 married woman was formerly able to dispose of a contingent 
 interest in her real property. In one case she was held capable 
 of disposing of it, at any rate in equity, where value had been 
 given. But in an Irish case it was decided that where property 
 was limited to the separate use of a married woman upon a 
 contingency, she could not dispose of her realty until the contin- 
 gency happened.' Her disposing power over her contingent or 
 reversionary property is now complete, unless she is restrained 
 from dealing with it. 
 
 By the Married Women's Property Act, 1882, section i, sub- 
 section I, and section 2, a woman married after January i, 
 1883, who acquires any real property, is rendered capable of 
 holding and disposing of it as her separate property as if she 
 were a feme sole, without the intervention of any trustee ; and if 
 she takes the property without a trustee, both the legal and 
 equitable estate will be vested in her. The law is the same with 
 regard to women married before that date, but who subsequently 
 become entitled to real estate, whether vested or contingent, or 
 in possession, reversion, or remainder.^ The joint effect of these 
 sections is to give married women ample and full power of dis- 
 position over real property that accrues to them. Any valid 
 contract entered into by her in respect of her separate real estate 
 will be specifically enforced against her separate estate.^ But she 
 will be protected against fraud, and any contract into which she 
 has been induced to enter by misrepresentation will be set aside 
 as against her.^ 
 
 A married woman has always had the same power over her 
 life interest in real estate settled to her separate use as a single 
 woman ; and a contract by her to sell or mortgage her interest 
 has always been enforced against her separate estate.^ The 
 method of disposing of her estate and interest has been already 
 discussed.' 
 
 ii. Personal estate. — The married woman's power of disposition- 
 over her separate property has been long recognized in equity. 
 She may dispose of it as a feme sole to the full extent of her 
 interest ; and she may make a gift in any way and to any person 
 of the property which she has in possession,' or in reversion.' 
 Her non-separate property of a future or reversionary nature she 
 
 1 Bestall V. Bunhury, 13 Ir. Ch. Rep. 318, 549. ^ ggct. 5. 
 
 5 Gaston v. Franlctim, 2 De G. & Sm. 561 ; Heard v. Hine, L. E. 5 Ch, 
 App. 274. 
 
 * Knight v. Knight, 11 Jnr. N. S. 617. ' Stead v. Nelson, 2 Beav. 245. . 
 
 " See ante, chap. x. ' Fettiplace v. Gorges, i Ves. 48.' 
 
 " Sturgia v. Corp, 13 Ves. 190. 
 
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CHAP. xv.J SEPARATE ESTATE. 367 
 
 could not dispose of until Malins' Act,' which enabled her to 
 dispose of every future or reversionary interest, whether vested or 
 contingent, in any personal estate to which she or her husband in 
 her right might become entitled under any instrument made after 
 December 31, 1857, except her marriage settlement, or release 
 a power over such personal estate by an acknowledged deed, in 
 which her husband concurred. In an Irish case^ it was held that 
 where property was limited to the separate use of a married 
 woman upon a contingency which had not happened, she could 
 not, pending the contingency, dispose of her interest iu the 
 property. The law in this case would probably not have been 
 followed in England, and has been abrogated by the efEect of the 
 Married Women's Property Act, 1882.^ She has full power over Pull power 
 it, unless restrained from anticipating it, and may charge it by M^^'vp. p" Act, 
 way of mortgage or pledge,^ or assign it.^ Unless the instrument '^^^'• 
 creating the separate estate expressly provides for the interposition 
 of her trustees in any dealings with it by her, a married woman 
 may exercise her disposing power over it without their inter- 
 vention.° If a married woman, possessing this absolute power of 
 disposition, concurs in a breach of trust by her trustees which 
 results in a loss, she cannot, unless restrained from anticipating 
 the fund,' call upon them to replace it.' 
 
 She is entitled to recover the arrears of her separate income Arrears of 
 where she has neither assented to nor acquiesced in the receipt l^^g^^" 
 of them by her husband. In the case of separate estate she is 
 entitled to recover the arrears of it, but if she consents to her 
 husband receiving her income, and they have lived together, then 
 she is not entitled to any account of it, either as against the 
 trustee, who may pay it to the husband, or against the husband 
 himself. The whole of that depends upon her consent." This 
 assent or acquiescence will not be presumed where she was 
 ignorant of his having received the income.'" As this assent or 
 acquiescence is the ground for disentitling the wife to recover 
 arrears of dividends, should she become lunatic or incapable of 
 exercising any powers of assent, the husband will be liable to 
 account for any dividends he may have received." Unless the 
 married woman has been under mental disability she will not be 
 able to recover more than six years of arrears.-^^ 
 
 ^ 20 & 21 Vict. c. 57. ^ Mara v. Manning, 8 Ir. Eq. 218. 
 
 ^ Sect. I, 3ub-s. I, sects. 2, 5- 
 
 * JPybusy. Smith, I Ves. 189. ° Wagataffv. /Smith, 9 Ves. 520. 
 
 * Essex V. Atkins, 14 Ves. 542. ' Davies v. Hodgson, 27 L. J. Ch. 449. 
 ' Orosbj V. Church, 3 Beav. 485. 
 
 9 Dixon V. Dixon, 9 Ch. D. 587. '" Ibid. 
 
 11 A tt. ■ Oen. V. Parnther, 4 Bi'o. Ch. C. 409. 
 ^^ See Be Hallett, Hastings v. Hallett, 35 Ch. D. 94. 
 
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368 HUSBAND AND WIFE. [paet i. 
 
 Disposition by h. Disposition hy will. — (i) Reed estate.— At common law a 
 Real estate, married woman had no power to make a will of lands. By the 
 
 anTZtuto ^^^ ^^ ^^'^' ^^^^' ^- I' s^® ^as seemingly permitted to do so; 
 disability. but by the Act passed two years later/ she was expressly debarred 
 Wills Act, from making a valid will of realty. The Wills Act, 1837,' did 
 not remove her disability, because it prevented her from making 
 a will of lands of which her husband was seised in her right ; ' 
 and this disability applied to lands in which she had merely an 
 M. w. P. Act, equitable interest. "Women married after the Married Women's 
 Property Act, 1882, came into force, may make a valid will ^of 
 the legal estate of their lands,'' and if married before the Act, in 
 respect of the legal estate of lands acquired by them since that 
 date.* The effect of this is inconsistent with, and so impliedly 
 repeals, section 14 of 34 & 35 Hen. VIII. c. 5, in so far as it 
 disabled a feme covert from making a will of lands ; section 8 of 
 I Vict. c. 26 is also affected by it. The most usual method by 
 which she was enabled to execute a will valid at common law, 
 was to give her a power of appointment by will over the property 
 to be affected, which she could effectively exercise by way of 
 testamentary disposition.' But if there was no such express 
 power of appointment reserved to her, she could not during 
 coverture dispose by will of the legal estate so as to defeat her 
 heir to whom it descended, subject to the curtesy right (if any) 
 of her husband. The equity courts, however, refused to apply 
 this common law doctrine and the statutory disabilities of a 
 married woman to the real estate settled to her separate use, and 
 Disposition of recognized her full right to dispose of it by will. It is now 
 ega es e. gg^tj^g^ doctrine that a married woman can dispose of her real 
 estate held by her to her separate use, and that her trustees must 
 hold the legal estate in trust for her devisees.' Her testamentary 
 capacity extends to the legal estate vested in her to her separate 
 use.' But where real estate has been given to a married woman 
 before the coming into operation of the Married Women's Property 
 Act, 1882, and the gift thereof to her separate use extends only 
 to her life interest and not to the corpus of the estate, she 
 cannot validly devise the fee.' Such a gift cannot now well 
 be made since January i, 1883, the date of the passing of that 
 Act. 
 
 Her will, where it deals only with realty, but appoints executors, 
 is entitled to probate, where a portion of the estate consists of 
 
 1 34 Hen, VIII. 0.5. 'I Vict. c. 26. 
 
 8 Sect. 8. ■* Sect. I, sub-s. I, and sect. 2. 
 
 ' Sect. 5. " See^os*, p. 373. 
 
 '' Taylor v. Meads, 34 L. J. Ch. 203. " SaU v. Waterliouse, 13 W. R. 633. 
 
 ^ Troutbech v. Bcmghey, I1. R. 2 Eq. 534. 
 
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CHAP. XV.] SEPARATE ESTATE. 3G9 
 
 personalty vested in her by virtue of tlie Married Women's 
 Property Act, 1882.' 
 
 ii. Personal estate. — A married woman was under no statutory Pei-Bonai 
 disability of making a will of her personalty ; but she could not ®f**'®' 
 
 '' , ° , '' L/ommon law 
 
 make a valid testamentary disposition, " not merely because disability. 
 
 marriage was a gift of her personalty to her husband, but because 
 
 in the eye of the law the wife had no existence separate from her 
 
 husband, and no separate or contracting power. On this general Modifications 
 
 rule some modifications were engrafted. A married woman who thas^"^'^' 
 
 was an executrix had, as such, power to make a will and appoint 
 
 an executor for the purpose of continuing the representation to 
 
 the original testator ; a married woman might make a will with 
 
 the consent of her husband ; a married woman might make a will 
 
 in the exercise of a power ; and a married woman might make a 
 
 will disposing of her separate estate or its savings." ^ These 
 
 modifications or exceptions to the above rule still hold good in 
 
 the case of married women whose testamentary capacity is not 
 
 affected by the Married Women's Property Act, 1882. Thus, 
 
 a married woman could make a will of property to which she 
 
 was entitled en metre droit, as executrix ; her husband's consent 
 
 to such will was unnecessary, because he took no beneficial 
 
 interest in the property.^ 
 
 In equity a married woman had, as incident to her ownership Testamentary 
 over it, full testamentary power over personalty settled to her separate''^'^ 
 separate use (or which assumed in any way the character of estate. 
 separate .estate),^ whether in possession,^ or in reversion,^ or vested 
 or contingent.' A wife could defeat her husband's interest in 
 her separate personal property by a testamentary disposition; thus, 
 if she made a will of her separate property, and appointed 
 executors who died in her lifetime, the administration with the 
 will annexed was not given to the husband, but to her residuary 
 legatee.' 
 
 A married woman acquired under certain statutes the capacity statutory 
 to make a will. Thus, under the Divorce Acts ' a protection P°'"^'^^- 
 order obtained by her put her in all respects as regards her pro- 
 perty as though she had obtained a decree of judicial separation, 
 which during the continuance of the separation gave her power 
 to dispose (as well by testament as gift i7iter vivos) of her property 
 
 1 In the Ooods of Ouhbon, 11 P. D. 169. 
 
 2 Per Cairns, L.C.. in WiMoch v. MUe, L. E. 7 H. L. 580, 589. 
 
 ^ ScammeU v. Wilkinson, 2 East, 552 ; S. C. Stevens v. Bagwell, 15 Ves. 139. 
 
 * Haddon v. Fladgate, 27 L. J. P., M. & A. 21. 
 
 ^ Fettiplaee v. Gorges, i Ves. 48. ^ Sturgis v. Corp, 13 Vee. 190. 
 
 7 See Lechmere v. Brotlieridge, 32 L. J. Ch. 577. 
 
 8 Be The Goods of Bine, L. R. i P. & D. 388. 
 
 * 20 & 21 Viut. c. 85, s. 21, and 21 & 22 Vict. c. 108, ss. 6-10. 
 
 2 A 
 
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o70 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Under M. W. 
 P. Act, 1882. 
 
 Testamentary 
 capacity of 
 married 
 woman 
 limited to 
 
 property. 
 
 acquired since the date of the decree or order, as if a feme sole ; 
 and if she died intestate, her husband was treated as though 
 dead.' The operation of such order was retrospective, and 
 when made related back to the date of desertion.^ So, too, a 
 married woman acquired the right to dispose by will of statutory 
 separate property under the Married Women's Property Act, 
 1870.' 
 
 Under the Married Women's P.roperty Act, 1882, she has full 
 disposing power over property acquired by her under the Act as 
 though she were a single woman,^ and her trustee (if any) will, 
 as in the case of her realty, hold the property in trust to carry 
 out her directions. A will made by a married woman during 
 coverture, disposing of separate property over which she has full 
 testamentary control, will no longer need the assent of her husband 
 to its probate if he survive, nor re-execution on her part if made 
 during coverture and before the Act came into force in order to 
 pass separate property acquired by her under the provisions of the 
 Act ; and her death in her husband's lifetime is immaterial.* It 
 seems also that she is able to dispose of the legal estate of her 
 real property. 
 
 The testamentary capacity of a married woman was limited to 
 her separate property, and whatever was not separate property 
 did not pass ; therefore property acquired by a married woman 
 after she became discovert did not pass unless she republished 
 her will made during coverture, notwithstanding the provisions of 
 sect. 24 of the Wills Act, 1837.^ So, too, sect, i, sub-sect, i, 
 of the Married Women's Property Act, 1882, gave a married 
 woman power to dispose by will only of property of which she 
 was possessed while under coverture ; her will, therefore, unless 
 it was re-executed or re-published after she became discovert, was 
 ineffectual to pass property acquired by her after coverture had 
 come to an end ; and sect. 24 of the Wills Act did not apply to 
 a will made by her under the Act of 1882.' But the Act of 
 1882 has not conferred upon her the power of disposing within 
 the Mortmain Act of 1803^ of five acres of land and ;^50O 
 personalty for church-building purposes without her husband's 
 
 ' 20 & 21 Vict. c. 85, s. 25. 2 In the Goods of Elliott, L. R. 2 P. & M. 274. 
 
 3 33 & 34 Vict. c. 93, s. I. 
 
 ^ Sect. I, sub-sect, i, and sect. 5. Sub-sect. I enacts, "a married woman shall in 
 accordance with the provisions of this Act be capable of — disposing by will— of any real 
 or personal property as her separate property in the same manner as if she were » 
 feme sole." 
 
 ^ lie Bowen, James v. James, [1892] 2 Ch. 291. 
 
 6 WiUock V. Noble, L. E. 7 H. L. 580. 
 
 =■ Me Price, Stafford v. Stafford, 28 Ch. D. 709 ; Se Young, Trye v. Sullivan, 
 28 Ch. D. 705, Be Ouno, Mansfield v. Mansfield, 43 Ch. D. 12 ; Se Smith, Bilke 7, 
 Bopcr, 45 Ch. D. 632. ^ 43 Geo. III. c. 108. 
 
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CHAP. XV.] SEPARATE ESTATE. 371 
 
 consent.' Bat a complete alteration in this branch of the law Under M. w. 
 has been effected by the Married Women's Property Act, 1893,^ " " '^ ^^' 
 by which section 24 of the Wills Act, 1837, is made to apply to 
 the will of a married woman made during coverture, whether she 
 is or is not possessed of or entitled to any separate property at 
 the time of making it ; and her will will not require to be 
 re-executed or re-published after the death of her husband. Her 
 will in the future will speak as from her death, and will not 
 require any validation by re-publication or re-execution on the 
 cessation of her coverture to pass non-separate property, that is 
 property acquired by her while discovert. This alteration of the 
 law affects the will of every married woman who has died since 
 this Act came into force.^ 
 
 The Court of Probate formerly required some evidence of the 
 possession of separate estate in order to found testamentary 
 capacity on the part of the woman.^ The presumption existing 
 before the Act of 1882, that a married woman possessed no 
 separate property, seems now to be done away with, and the 
 contrary presumption that she does possess it will now hold good 
 in the case of the will of a married woman as in that of a fevie 
 sole or a man.^ Whether the Court will take upon itself to 
 decide of what the separate property consists seems doubtful. In 
 one case "" the late Sir George Jessel was of opinion that if all 
 the interested parties were before the Court, the latter might take 
 upon itself to decide the question; but in a later case,' Butt, J., 
 held that the Court of Chancery was the proper court for the 
 decision of that question. It was the former practice of the Limited grant 
 Court to direct a limited grant of letters of probate of a married married 
 woman's will " to such property as the testatrix had a right to property before 
 dispose of ; and her husband had the right to have a grant of M. w. P. Act, 
 administration cceterorum ; ^ but since the Married Women's Pro- sinee the Act 
 perty Act, 1 882, it is the practice to make the grant " general," fi'g"nerai." 
 that is, " to such property as she has disposed of by her will." ' 
 The effect of the general probate is only to enable the executor 
 to get in all the assets of the wife, whether she had the power to 
 dispose of them by will or not ; and it does not affect the 
 
 ^ Be Smith's Estate, Clements v. Ward, 35 Ch. D. 589. 
 
 2 56 & 57 Vict. c. 63, 8. 3. 
 
 3 Me Wylie, Wylie v. Moffatt, [1895] 2 Ch. 116. 
 
 * See Barnes v. Vincent, 5 Moo. P. C 201 ; Haddon v. Fladgaie, 27 L. J. P. M. 
 & A. 21. 
 
 5 Harding v. Sutton, 59 L. T. 838. 
 
 '' Be The Ooods of Tharp, 3 P. D. 76. ' Harding v. Sutton (uhi sup.). 
 
 ^ BrencUey v. Lynn, 2 Rob. 441. 
 
 ^ In the Ooods of Price, 12 P. D. 137 ; In, the Ooods of Ham fray, 12 P. D. 138 ; 
 In the Ooods of Williams, 67 L. T. 502. See the New Rules of Practice, 15 
 and 18. 
 
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372 
 
 HUSBAND AND WIPE. 
 
 [part I. 
 
 Powers of 
 appointment. 
 
 Common law 
 powers. 
 
 Equitable. 
 
 Under Statute 
 of Uses. 
 
 General. 
 
 Special or 
 limited. 
 
 Collateral, 
 
 or coupled 
 with an 
 interest. 
 
 In groGs, or 
 appendant. 
 
 husband's beneficial title to the wife's choses in action, but 
 the executor is a trustee for the husband, who is entitled 
 to have them transferred to him, subject, however, to any 
 deductions in respect of debts and other liabilities contracted 
 by the wife.' 
 
 If a married woman leave a will and make bequests, the usual 
 course of administration will be observed. Thus, in the payment 
 of her debts, the undisposed-of interest will be first applied, then 
 general legacies, and if there be still a deficiency, the specific 
 legacies and general legacies will, ib is presumed, as in the ordinary 
 case, carry interest, not from the death of the testator, but from 
 the expiration of one year after the death. 
 
 c. Poiuers of Appointment. — Another mode by which married 
 women could exercise a disposing power over their property was 
 the execution of powers of appointment conferred upon them 
 by the instrument creating their interest in the property. A 
 power over the income of property extends as a rule over the 
 capital.^ 
 
 Powers are either common law powers, or equitable powers, or 
 powers which derive their efficacy from the Statute of Uses. A 
 common law power enables the donee to pass the legal estate, 
 and it is the execution, not the creation of the power, which 
 affects the transmutation of the estate. An equitable power is 
 that which is enforceable only in equity, that is, where the legal 
 interest is vested in one person, but the power of disposing of 
 the beneficial interest is in another. A power under the 
 Statute of Uses is a power of revoking existing, or declaring 
 future uses vested in some person named for that purpose in the 
 deed by which the uses to be affected by the operation of the 
 power are created.' 
 
 Powers are also general or limited. A general power is one 
 where no limit is placed on the donee's choice of objects. A 
 limited or special power is one the objects of which are specified 
 persons or classes.^ 
 
 A power, too, may be either collateral, which is nothing more 
 than a bare authority given to a stranger to deal with an estate, 
 no interest in which is vested in the donee of the power ; or it 
 may be coupled with an interest, that is, a power to deal with an 
 estate in which the donee is beneficially entitled.* It may also 
 be in gross," or appendant.' 
 
 ^ Smart v. Tranter, 43 Ch. D. 587. 
 
 ^ See lie V Herminier , Mounsey v. Buston, [1894] I Ch. 675. 
 
 •' Farw. 1-3. 
 
 Ihid. 7. 
 
 ^ See Dickenson v. Teesdale, i De G. J. & S. 60. 
 " lie D'Angibau, 15 Oh.D. 232. '' Ibid. 
 
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CHAP. XV.] SEPARATE ESTATE. 373 
 
 A power of appointment may be exercised over both real and 
 personal property, either by deed or will.' 
 
 A married woman as donee could exercise any of these powers 
 without the consent or concurrence of her husband, and she 
 could validly appoint to him as to a stranger, though in the 
 latter case the court regarded the appointment with some 
 jealousy.'^ She may execute a power, whether appendant, in 
 gross, or simply collateral, and over copyhold as well as free- 
 hold property.^ 
 
 As an infant a married woman cannot exercise a power by infant married 
 will, but by deed she can, if the instrument of donation expressly Zeroise power 
 confers upon her the right and capacity to exercise it during ^y '^i'' ^"j^^ 
 minority ; and there is no distinction drawn in this respect if capacity 
 between realty and personalty, and between powers collateral imr. 
 and powers coupled with an interest.^ No precise form of 
 words is necessary to create a power if the intention to do so 
 is clear.^ 
 
 Where the power of appointment was exercisable by will, it 
 enabled a married woman to dispose of property which she could 
 not otherwise have disposed of, as, for instance, realty, which 
 she could not dispose of by will, but only by levying a fine, or 
 by deed acknowledged under the Fines and Eecoveries Act, 
 1834. 
 
 A married woman may release her power of appointment over Release of 
 property ; if over realty which was acquired by her before the P°'^'"^' 
 coming into force of the Married Women's Property Act, 1882, j?ines and Re- 
 she must release it according to the form prescribed by the Act covenes Act. 
 for the Abolition of Pines and Eecoveries (sect, yy), as modified 
 by sect. 7 of the Conveyancing Act, 1882 ; but if acquired since 
 the passing of the Act of 1882, she will be able to release it by 
 an ordinary deed without acknowledgment. If it is a power Personal 
 over personal estate of a future or reversionary interest which ®^***''- 
 has accrued to her before the passing of the above Act of 1882, 
 she must release it by deed according to the provisions of Maiin's Act, 
 Malin's Act, 1857;" but if it has accrued since the passing of ^^^'^' 
 the Act of 1882, she may release it as though she were a feme 
 sole. She may also release, or contract to release, a power under 
 
 1 Farw. pp. 1 16 et seq. See WiUoughhy Osborne v. Holyoalce, 22 Ch. P. 238. 
 
 2 Farw. 8. * Sugd. Pow. 153, 154. 
 
 ^ Be Carckoss's Settlement, 7 Ch. D. 728. In this case Jessel, M.R., laid it down 
 that the comment of Mr. Preston on the judgment of Lord Hardwicke in Hearle v. 
 Greenhank (3 Atk. 695), to the effect that an infant may execute a power eyen though 
 coupled with an interest, if from the nature of the power it be evident that it was in 
 the contemplation of the author of the power that it should be exercised during minority, 
 is good law. See also Be D'Angibau {iM sup.). 
 
 ^ Serchtoldt v. Hertford, 7 Beav. 172. '• 20 & 21 Vict. l. 57. 
 
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37tt HUSBAND AND WIFE. [part i. 
 
 the Conveyancing and Law of Property Act, 1881, and may 
 release it by deed without going through the ordinary formalities.' 
 Where a bequest of income was made before the Married Women's 
 Property Act came into force to a woman for her life for her 
 separate use, and of the capital for such persons as she should 
 appoint, and in default of appointment for her executors, admin- 
 istrators, or assigns, and she married after the Act came into 
 force, her life interest and reversionary interest were held to be 
 alike limited to her separate use, and so on releasing her power 
 Limitation she became absolutely entitled to the fund.^ A limitation of an 
 
 to marned , . j j . i 
 
 womaa estate or tuna to the separate use of a married woman for her 
 
 abaSlia " ^^^^' "'i*^ remainder as she shall, notwithstanding her coverture, 
 by deed or will appoint (that is, by execution of a general 
 power of appointment), and in default of appointment, to her 
 executors and administrators, operates as an absolute gift of the 
 corpus to her sole and separate use ; ^ and the absolute interest 
 in the property is conferred upon her alike in cases where the 
 power precedes as where it succeeds the life estate.'' 
 Effect of The execution of a general power by will by a married 
 
 execution of a i n i i «■ i. 
 
 general power woman snall have the eiiect of making the property appointed 
 ^ ^ • liable for her debts and other liabilities in the same manner as 
 
 her separate estate is made liable under this Act.* Where a 
 married woman possesses property over which she has a general 
 testamentary power of appointment, and she directs the executors 
 of her will to pay her debts, such debts are a charge upon the 
 property." Property appointed by her by will under a general 
 testamentary power becomes on her death liable for her debts and 
 other liabilities, even though she may have had no separate estate 
 at the time she contracted them.' 
 
 Section 4. 
 Restraint upon Anticipation. 
 Eestraint upon Eestraint upon anticipation, which is a modification of the 
 
 anticipation. e r i 
 
 separate estate, prevents a married woman from alienating or 
 
 ' 44 & 45 Vict. c. 41, s. 52, sub-s. I. 
 
 2 JRe Davenport, Tvrner v. King, [1895] i Ch. 361. In this case the decision 
 in Whittle v. Helming, (2 Pli. 731) on a similar point was held applicable. See 
 Me Onslow, Plowden v. Gayford, 39 Ch. D. 622. 
 
 ' London and Chartered Bank of Australia v. Lempriire, L. E. 4 P. C. 572. Where 
 the limitation was to the separate use of the married woman for life with power to appoint 
 the principal after her death, it was formerly held to preclude her Irom making an 
 immediate disposal of the fund, and only to entitle her to dispose of it by will ; and the 
 ultimate limitation to her executors and administrators did not give her a right to the 
 immediate disposal of the fund. See 2 Rop. H. & W. 212 ; 2 Br. H. & W. 235. 
 
 ^ Mayd v. Field, 3 Ch. D. 587. ° 45 & 36 Vict. c. 75, s. 4. 
 
 ^ Re De Burgh Lawson, De Burgh Lawson v. JJe Burgh Lawson, 41 Ch. D. 568. 
 
 ^ lie Ann, Wilson v. Ann, [1894] i Ch. 549. 
 
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CHAP. xv.J SEPARATE ESTATE. 375 
 
 disposing of her property during coverture.' It is applicable 
 
 both to real and personal estate." The restraint is as much 
 
 a violation of the principles of the law that an independent 
 
 person (and a married woman is so far as concerns her separate 
 
 property s^d juris) may dispose of property belonging to him, as 
 
 the doctrine of the separate estate is a violation of the common 
 
 law theory that the property of the wife belongs to the husband, 
 
 whether during coverture or for his life, or absolutely.' Equity Restraint upon 
 
 created the separate estate, and was entitled to mould and shape creation o°" * 
 
 its own production ; and it claimed full power to limit and equity. 
 
 control the effect of that new interest which it had called into 
 
 being. The doctrine of the separate use gave a married woman 
 
 complete dominion over her separate property ; she might give it 
 
 all to her husband, or squander it in contracting unprofitable 
 
 liabilities. In order to obviate these disadvantages this provision 
 
 of a restraint upon anticipation was devised by Lord Thurlow 
 
 in the marriage settlement of a Miss Watson, for whom he was a 
 
 trustee.'' This fetter upon alienation was imposed upon the wife 
 
 as a protection against her husband, because if she were not 
 
 debarred from anticipating the proceeds of her separate estate, 
 
 she might, where the husband was not actuated by proper 
 
 motives, be induced to divest herself of the property, and place it 
 
 at his disposal." The validity of this restraint was not at first 
 
 readily admitted, but its advantage was felt to be real, and it 
 
 became firmly established ; and for many years it has been the 
 
 practice of conveyancers to insert in wills and settlements a 
 
 clause (whenever desired) restraining a married woman from 
 
 dealing by way of anticipation with property settled to her 
 
 separate use." 
 
 It is usual in settlements by deed or will to employ words Oreation of the 
 after the gift of the separate estate to a woman which are ^^^ ''"" " 
 directed to prevent her from disposing or depriving herself of 
 
 1 He EUis'' Trusts, L. K. 17 Eq. 409. 
 
 2 Baggett v. Ileux, 7 L. T. 0. S. 41 ; Me Sales' Irusts, 6 L. T. 350. 
 
 3 TvUett V. Armstrong, 4 Myl. & Cr. 390, 405 
 
 ^ See Pylus v. Smith, i Ves. 189 ; Wagstaf\. Smith, 9 Ves. 520 ; and Pai-kes v. 
 White, II Ves. 221. 
 
 ^ A point may arise under the law as brought about by the Married Women's 
 Property Act, 1882. Property is given or bequeathed to a married woman with 
 a restraint upon anticipation, but no trustees are appointed to hold it. Without 
 trustees there is no valid check upon the wife's power of dealing with the property at 
 once, notwithstanding the restraint. Now, will the court constructively deem the 
 husband under the new order of things to be a trustee on behalf of his wife, so that if he 
 participate in her dealings with the property, he or bis estate will be held liable to 
 make good what loss has resulted from the constructive breach of trust ; or will it 
 hold that if the donor has not chosen to protect his gift from the full control of the 
 married woman over it, he must be deemed to have intended her to have that full 
 and unfettered control ? 
 
 ^ See Hay. Conv. 500-504 ; Peach. Sett. 284. 
 
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76 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 No particnlai- 
 f orm of worda 
 required. 
 
 What words 
 will restrain 
 anticipation. 
 
 "What words 
 will not. 
 
 the gift by way of anticipation ; and where there is a plain 
 direction that the married woman shall be without the power of 
 anticipating or aliening her property, she will be restrained from 
 dealing with it.' No particular form of words is necessary to 
 create this restraint ; and if the intention to restrain anticipation 
 can be clearly collected from the tenor of the instrument it will 
 be sufficient/ whether it is intended to apply generally or to a 
 particular coverture.^ But unless the intention to restrain appears 
 the power of anticipation exists. 
 
 The following have been held sufficient to create the restraint : — 
 A direction to pay the income to such person as the wife shall by 
 writing, and as the same becomes due, but not by way of assign- 
 ment, charge, or other anticipation, appoint ;* or to pay the 
 income to such persons as the married woman shall, after it has 
 iecome due, appoint;^ or for her sole, separate, and iiudienaUe 
 use ; " or a gift of income to her sole and separate use not to he 
 sold or mortgaged;^ or "receipt by the married woman alone 
 shall be a good discharge ;"^ or, "the receipt of her (the married 
 woman) for the income be given after the same shall iecome dve 
 shall be a good and effectual discharge." ' Where there is an 
 executory trust for the creation of separate estate in the event of 
 a woman marrying, to the effect that she shall enjoy the income 
 during her life for her separate use, the Court can insert a clause 
 against anticipation." A limitation merely to her sole and 
 separate use, or a direction to pay from time to time upon her 
 receipt under her own proper hand," or according to her appoint- 
 ment from time to time ; '" or upon her personal appearance," will 
 not restrain a married woman from disposing of her property in 
 the fullest possible manner, or in a will by some such words of 
 the testator after a gift or devise as " it is my luill and reqioest 
 that she (the married woman) shall not sell or dispose of any 
 part of the property so given or devised." " It depends upon the 
 intention of the donor whether or not restraint upon anticipation 
 attaches to his gift.'* 
 
 '■ See FyhusY. Smith, i Ves. 189; Parhes v. White, 11 Ves. 221. 
 2 Re Boss's Trust, i Sim. N. S. 190; Harrop v. Howard, 3 Ha. 624. 
 2 Me Gaffee, 19 L. J. Ch. 179 ; Sawkes v. Hubback, L. R. 11 Eq. 5. 
 
 * Brown v. Bamford, i Pb, 620. ^ IHeld v. Evans, 15 Sim. 375. 
 '' D'Oechsner v. Scott, 24 Beav. 239 ; Spring v. Pride, i5 Jur. 876. 
 
 ' Steedman v. Pooh, 6 Ha. 193 ; see also Bagcjett v. Meux, 7 L. T. 0. S. 41 ; Pybus 
 V. Smith (ubi svp.). 
 
 * Baker v. Bradley, 7 De G. M. & G. 597. 
 
 " Be Smith, Chapman v. Wood, 51 L. T. 501. 
 " Be Bunnill's Trusts, Ir. Eep. 6 Eq. 322. 
 
 " hlUs V. Atkinson, 3 Bro. C. C. 565J Sturgis v. Corp, 13 Ves. 190. 
 12 Witts V. Hawkins, 12 Ves. 501. " Be Boss's Trusts {ubi sup,). 
 
 " Hutchins V. Burt, 59 L. T. 490. 
 ^° Baggett v. Meux (ubi sup.) ; Be Bown, O'TIalloran v. King, 27 Ch. D. 411. 
 
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CHAP. xv.J SEPARATE ESTATE. 877 
 
 The restraint on anticipation is inseparable from and has no Ambulatory 
 independent existence apart from separate estate. " The separate the rasSaint. 
 estate may, and often does, exist without the restriction, but the 
 restriction has no independent existence ; when found it is as a 
 modification of the separate estate, and inseparable from it ; ' thus, 
 the restraint upon the alienation of income is of no avail unless 
 the income is given to the woman for her separate use.^ It is 
 really an anomaly, and a violation of the rule that absolute 
 ownership is inconsistent with restrictions upon it ; and equity 
 only permits it because of its limitation to the period of cover- 
 ture. It accordingly does not affect the right of an unmarried Restraint 
 woman to aliene property over which it is created ; ' thus, where over^property 
 property was settled to the separate use of a married woman '^*M'^Y'^^ 
 without power of anticipation, it was held that she was, while woman, 
 single, entitled to deal with it, notwithstanding the restraint.'' 
 But if she marry, it springs up into effect at once, lapses again 
 into abeyance on her discoverture, whether by death of her 
 husband, or by judicial separation,^ or on her obtaining a pro- 
 tection order against. her husband," so far as regards property 
 acquired by her after the decree of separation or order for the 
 protection of her property,^ and revives once more on a second 
 marriage,^ unless in the interval she has altered the form of 
 investment affected by the original trust, which she is at liberty 
 to do,' or the trust is confined to a particular coverture.'" In the 
 latter case, on a second marriage, it would be necessary for her to 
 stipulate to deprive herself of the power of alienation." 
 
 This restraint is applicable to real as well as personal estate.''' On what pro- 
 As regards personal estate, there has been some difference of can fakT effect. 
 judicial opinion under what circumstances the restraint shall 
 operate.'' It has been laid down as a rule or test that where the 
 fund is income-bearing, then the restraint operates ; but where it 
 is not income-bearing, as a mere sum of cash, the restraint does 
 
 1 Per Lord Langdale in Tullett v. Armstrong, i Beav, i. 
 
 2 Stogdon v. Lee, [1891] i Q. B. 661. 
 
 ' Be Toung's /Settlement, 16 Beav. 199. 
 ■* tVoodmeston v. Walker, 2 Russ. & Myl. 197. 
 
 ' 3Juut V. Qlynes, 41 L. J. Ch. 639. ^ Cooke v. Fuller, 26 Beav. 99. 
 
 ' Waite V. Morland, 38 Ch. D. 135 ; Munt v. Glynes (uhi sup.). 
 8 TuVett V. Armstrong, {uhi sup.). 
 
 ^ Wright v. Wright, 2 J. ■& H. 647 ; see also converse case of Newlands v. Faynter, 
 4 Myl. & Cr. 408. 
 
 10 Moore v. Morris, 4 Dr. 33. 
 
 11 See 45 & 46 Vict. c. 75, s. 19, and ante, chap, viii., Marriage Settlements, 
 
 p. 136. 
 
 12 Baggett v. 2Ieux {uhi sup.) ; Re Sykes' Trusts, 6 L. T. 350. 
 
 13 Be Sykes' Trust {uhi sup.) ; Be Ellis' Trusts, L. E. 17 Eq. 409 ; Be Croughion's 
 Trusts, 8 Ch. D. 460; Be Benton, Smith v. Smith, 19 Ch. D. 277; Be Clarice's 
 Trusts, 21 Ch. D. 748 ; Be Taber's Estate, Arnold v. Kayess, 46 L. T. 305 ; Re 
 Coo-iriies, Coombes v. Parfitt, \V. N. 1883, p. 169. 
 
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378 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Intention of 
 donor to 
 prevail. 
 
 not take effect ; but the married woman is entitled to hare the 
 money paid to her notwithstanding her coverture. But the real 
 question is what was the intention of the settlor or testator ; and 
 whether the restraint on anticipation is effectual or not does not 
 depend upon the question whether the gift is of an income 
 bearing fund or of a sum of cash, but whether the settlor or 
 testator has shown an intention that the trustees should keep the 
 investment and pay the income to the married woman.' In other 
 words, it is really a question of construction, and where the donor 
 means the fund to be paid over to the woman whether single or 
 under coverture, any expression fettering her absolute power over 
 it will be ineffectual.^ Where a testator having a general power 
 of appointment over a settled fund appointed that a sum of £1^00 
 should be raised and paid to his daughter, a married woman, 
 absolutely for her separate use vnthmot power of anticipation, and 
 appointed one-fourth of the residue of the fund to be held on 
 trust for her, absolutely for her separate use without power of 
 anticipation, it was not contended that the married woman was 
 not entitled to the immediate payment of the ;£^i5oo, but she 
 was held not entitled to payment out of the capital of her fourth 
 share of the residue.^ Where a fund subject to a particular 
 esta,te is given absolutely to a married woman with a restraint 
 upon anticipation, the restraint will not, in the absence of any 
 other ground, be confined to the continuance of that particular 
 estate.'' So, too, where a testator directed surplus income of 
 real and personal estate to be accumulated during the life of 
 his wife, and after her death gave the capital to his children, 
 directing that the shares of his daughters should be for their 
 separate use, without power of alienation or anticipation during 
 his wife's life, the married daughters were held during their 
 mother's lifetime entitled to receive only the income of invested 
 income.* 
 
 The restraint upon anticipation is preserved as a necessary 
 M. w. P. Act, protection of the interests of the wife by section 19 of the 
 ^^^^- Married Women's Property Act, 1882, which enacts that 
 
 " Nothing in this Act .... shall interfere with or render in- 
 operative any restriction against anticipation at present attached 
 
 Kestraint 
 preserved by 
 
 ^ Re BoiBn, 0' Halloran v. iim^, 27 Ch. 1). 411. In this case the Court of Appeal 
 approved o{ Be Ellis' Trusts, L. R. 17 Eq. 409, and He Croucjhtons Trusts, 8 Oh. D. 
 460, and disapproved of part of the decision of Fry, J., in Re Clarke's Trusts, 21 Ch. 
 D. 748. 
 
 " Re Solmes, Hallows v. Holmes, 67 L. T. 335 ; Re Sown, O'Halloran v. King, 
 (wJi sup.). 
 
 ^ Re Grey's Settlements , Acason v. QreenwooiJ, 34 Ch. D. 712. 
 
 ^ Re Tippett's and Newhould's Contract, 37 Ch. D. 444. 
 
 ^ Re Spencer, Thomas v. Spencer, ^o Ch. D. 183. 
 
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CHAP. XV.] SEPARATE ESTATE. 379 
 
 or to be hereafter attached to the enjoyment of any property or 
 income by a woman under any settlement, agreement for a 
 settlement, will, or other instrument." But the section goes on 
 to provide that " no restriction against anticipation contained in 
 any settlement or agreement for a settlement of a woman's own 
 property to be made or entered into by herself shall have any 
 validity against debts contracted by her before marriage, and no 
 settlement or agreement for a settlement shall have any greater 
 force or validity against creditors of such woman than a like 
 settlement or agreement for a settlement made or entered into by 
 a man would have against his creditors." ' This places a married 
 woman on an equal footing with a man or an unmarried woman 
 in respect of settlements that may be impeached under 1 3 Bliz. 
 c. $, or set aside under the Bankruptcy law, if she is a sole 
 trader. Thus, a married woman who contracts a debt then 
 becomes discovert and marries again, cannot make a valid settle- 
 ment of her property on the second marriage as against her 
 creditor by restraining herself against anticipation. Such 
 creditor is deemed to be an ante-nuptial one ; and the effect of 
 this section is to prevent the restraint having any efficacy as 
 against the ante-nuptial debt.^ The words " interfere with or 
 affect " mean invalidate or render inoperative ; ^ thus, where a 
 married woman who carried on a trade separately from her 
 husband and became bankrupt had executed a mari'iage settle- 
 ment by which she conveyed certain real property to a trustee in 
 trust for herself for life for her separate use without restriction 
 on anticipation with certain remainders, it was held that her 
 trustee in bankruptcy in claiming her life estate was not inter- 
 fering with or affecting the settlement within the meaning of 
 this section, but rather was claiming under and in affirmance of 
 its provisions.'' 
 
 Where the restraint is imposed by a stranger on his gift, it Restraint 
 will be as valid now as heretofore, and the property so restricted sb-anger suii 
 will be out of the reach of the married woman's creditors, ante- ™'"^' 
 
 ^ See form of judgment against a married woman in Scott v. Morley, 20 Q. B. D. 
 120. "The restraint on anticipation is an anomaly introduced by the Court of 
 Chancery for the protection of the married woman against her own act and her own 
 weakness. She cannot ovenide it by any engagement entered into by her, howeTcr 
 solemn, or however much to her particular advantage in the circumstances of the case ; 
 and on the other hand, it has been frequently held that the Court cannot make her 
 separate income restrained from anticipation liable to redress a fraud committed by her, 
 however gross. ... So fiir from modifying the eifect of the restraint as it existed 
 before the Act (Married Women's Property Act, 1882), it appears to us that the Act 
 carefully preserves it to the same extent as it existed previously." Per Davey, L. J. 
 in Hood Barrs v. Catlicart, [1894] 2 Q. B. 566. 
 
 ^ Jay V. Rohinson, 25 Q. B. D. 467. 
 
 ' Se Armstrong, Ex parte Boyd, 21 Q. B. D. 264; Re Whitaher, Christian v. 
 Wldtdker, 34 Ch. D. 227 ; Hamoek v. Hancock, 38 Ch. D. 78. 
 
 ^ Be Armstrong, Ex parte Boyd (ubi sup.). 
 
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380 HUSBAND AND WIFE. [paet i. 
 
 nuptial as well as post-nuptial.' But where a woman settles her 
 own property on herself in view of marriage, aay restriction on 
 anticipation in any settlement or agreement for a settlement 
 will not prevent her property from being taken to satisfy her 
 ante-nuptial debts or liabilities, or in respect of her ante-nuptial 
 torts.^ 
 Arreai-s of A judgment recovered against a married woman whose pro- 
 
 income not perty is subject to the restraint cannot be executed upon or 
 Habl6°to-^'"°' ®^fo'"<'^^ against arrears of income derived from the property 
 debts, &o. so restrained which has not been paid over into her own 
 hands, even though it may have accrued due not only at the 
 date of the judgment but at the date of the application for 
 execution.' 
 Restraint The effect of this restraint is also preserved by the recent 
 
 S.^W.^p. A^t, Married Women's Property Act, 1893,* which provides that 
 '893- nothing shall render available to satisfy any liability or obligation 
 
 arising out of contract any separate property which at the time of 
 entering into the contract or afterwards a married woman is 
 restrained from anticipating. 
 
 Where a married woman whose property is subject to a 
 restraint upon anticipation by her next friend brings an action 
 not under the Married Women's Property Act, 1882, which is 
 found to be an improper one, and costs are given against the 
 next friend, who cannot pay them, she cannot be ordered to pay 
 the costs out of such property^ though it includes arrears of 
 income accrued due before the order for payment, but after the 
 commencement of the proceedings.^ In Cox v. Bennett " (which 
 was a suit under the Married Women's Property Act, 1882) a 
 married woman's trustees against whom she brought an un- 
 successful suit without a next friend, were held by the Court of 
 Appeal entitled to retain the costs of the suit out of a balance of 
 income, which was in their hands at the time when the order to 
 pay costs was made, though it was not in hand at the time when 
 she commenced the proceedings, on the ground that the restraint 
 on anticipation had ceased as to any sums that formed part of 
 
 ^ Under the Married Women's Property Act, 1870, sect. 12, it lias been lield that a 
 married woman's property, though subject to the restraint was liable to satisfy her 
 ante-nuptial debts : Axford v. Beid, 22 Q. B. D. 548 : Be Hedgley, Small v. Sedcjley, 
 34 Ch. D. 379. 
 
 ^ This is a legislative sanction of the decision in Sanger v. Sanger, L. R. 11 Eq. 
 470. 
 
 2 Eood Barrs v. Cathcart, [1894] 2 Q. B. 559, 567 ; Loftus v. Htriot, [1895] 
 2 Q. B. 212. 
 
 * 56 & 57 Vict. 0. 63, s. T, proviso. The inference that the Legislature in- 
 fended by this section to make her property subject to the restraint liable to make good 
 damages recovered against her in tort seems too slight. See p. 381. 
 
 ^ lie Glanvill, Ellis v. Johnson, 31 Ch. D. 532. ^ [i8gi] i Ch. 617. 
 
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woman. 
 
 CHAP. xv.J SEPARATE ESTATE. 881 
 
 the income as soon as they came into the hands of the trustees. 
 But the correctness of that decision was not wholly acquiesced in 
 by a differently constituted Court of Appeal in Hood Barrs v. 
 Cailviart^ which laid down that where a married woman has 
 separate estate restrained from anticipation, the Married Women's 
 Property Act, 1882, does not enable a judgment to be enforced 
 against arrears of income to which the restraint applies, accruing 
 due after the date of the judgment, either by the appointment of 
 a receiver, by sequestration, by a charging order, or by any kind 
 of process, even where such income is in her own hands ; "^ and, as 
 has been seen, the Court has lately declined to enforce a judg- 
 ment against arrears of separate income which have not come into 
 the married woman's hands. ^ 
 
 The Married Women's Property Act, 1893," has effected an m. w. P. Act, 
 alteration in this respect by enabling the Court before which any |f^jj.j^^t 
 action or proceeding instituted by a woman [sm], or by a next removable in 
 friend on her behalf, is pending, may order payment of the costs costs of action 
 of the opposite party out of property which is subject to a restraint "nstituted^by a 
 on anticipation ; and such payment may be enforced by the married 
 appointment of a receiver and the sale of the property or other- 
 wise.* This provision, however, does not give the Court juris- 
 diction to make an order for the payment of costs of a suit begun 
 before the Act came into force," nor does it apply to the costs of 
 an appeal instituted by a married woman without a next friend 
 in a suit in which she was the original defendant.' But it does 
 apply to a counterclaim set up by her in an action brought 
 against her ; for such is a " proceeding instituted " by her within 
 the meaning of this Act.^ The Court can enforce payment of such 
 proceedings unsuccessfully instituted by her by the appointment 
 of a receiver. ° 
 
 The restraint upon anticipation is an effectual barrier against Effect of the 
 the married woman dealing with the property affected by it. Her andoipation?" 
 separate estate is not bound, where she is restrained from antici- 
 pating, even for her breaches of trust,^° or for her torts such as 
 
 1 [1894] 2 Q. B. 559, 563. 
 
 ^ See also lie Lumley, Ex parte Hood Barrs, [1894] 3 Ch, 135. 
 
 3 Loftiis V. Beriot, (uhi sup.). The right of retainer of a trustee in such a case as 
 Cox T. Bennett (uhi sup.) is of a different nature to that of a judgment creditor ; for 
 the principle of the restraint is directed agaiust the latter and not against the former. 
 
 * 56 & 57 Vict. c. 63, ». 2. 
 
 ^ This gives legislative sanction to the principle of the decision in Be Andrews, 
 Edwards v. Dewar, 30 Ch. D. 159, in whicli Pearsou, J., held that when a married 
 woman, entitled to income which she was restrained from anticipating, instituted 
 proceedings without a next friend against her tnistees in which she took out a summons 
 that was dismissed, her trustees were entitled to retain their costs out of her income, 
 
 8 Be Immley, Ex parte Hood Barrs, (ttJi sup,). 
 
 "> Hood Barrs v. Cathcart, [1894] 3 Ch. 376. 
 
 8 Rood Barrs v. Gathcart, [1895] i Q. B. 873. " Ihid. 
 
 i» Olive V. Carew, 28 L. J. Ch. 865. 
 
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882 HUSBAND AND WIFE. [paet i. 
 
 lier own fraudulent acts,' or for her contracts made during 
 coverture.^ She cannot validly charge it.' So where the property- 
 is reversionary in its nature, and the restraint exists during the 
 reversionary period, but ceases on its falling- into possession, a 
 charge upon it made before the latter event has happened is 
 ineffectual.'' If she has no more than a life interest in the 
 income of her separate property, and she contracts debts, she will 
 be liable for the same only to the amount of her separate interest, 
 and her income might be capitalized and dealt with in satisfaction 
 of her liabilities as if she were a single woman with a life interest 
 in the property; but if she is restrained from anticipating her 
 income, her creditors can only be satisfied by the income as it is 
 paid into her hands, and she cannot, by suffering a judgment to 
 go by default against her, enable them to attach the income before 
 it is paid into her hands,- — otherwise the restraint would be 
 rendered inoperative.* The restraint imposed by a post-nuptial 
 settlement made by her before the Married Women's Property 
 Act, 1882, came into force, and not with a view to defraud 
 creditors, was held as efficacious as a restraint imposed by a 
 stranger/ 
 Eestrainedpro- For contractual purposes, then, both in equity' and under the 
 iiieffectn™fo/ Married Women's Property Act, 1882,* this restraint operates as 
 ^^™™*^*^ a bar to a married woman making an effective contract, for the 
 property over which it extends is deemed non-existent both for 
 the purpose of entering into a binding contract or liability, and 
 for satisfying any claim arising out of such contract or liability ; ' 
 and this privilege is extended to her when she is not sued on her 
 post-nuptial contract until after the death of her husband.'" The 
 stringent operation of the restraint is illustrated by those cases in 
 which a married woman having only separate property, which she 
 is restrained from anticipating, or a small amount of free separate 
 property at the time of contracting a debt or making a contract 
 will not reasonably be deemed to have made herself liable in 
 respect of her restrained or free property." This construction is 
 applicable only to contracts affected by the old law or under the 
 Married Women's Property Act, 1882; for under the Married 
 
 • 45 & 46 Vict. c. 75, s. 19. ^ Mdberts v. JVatHns, 46 L. J. Q. B. 552. 
 
 ' Stanley v. Stanley, 7 Ch. D. 589. 
 
 " Per Bagallay, L.J., in He Sown, O'Halloran v. King, 27 Ch. D. 411. 
 
 5 Chapman v. Biygs, 11 Q. B. D. 27. ^ Beckett v. TasJeer, 19 Q. B. D. 7. 
 
 ' See like v. Fitzgiblon, 17 Ch. D. 454; Stogdon v. Lee, [1891] i Q. B. D. 661. 
 
 8 Sect. I, sub-g. 2, 3, and 19. 
 
 " Beckett v. Tasker {uhi su}}.) ; PalUser v. Gurneij, 19 Q. B. D. 519, approved 
 by' Court of Appeal in Stogdon v. Lee {uln sup.). 
 i» Pelton (Bros.) v. Harrison, [1891] 2 Q. B. 422. 
 
 '1 Harrison v. Harrison, 13 P. D. 180 Leake v. Driffield, 24 Q. B. D. 98 ; 
 Braunstein v. Lewis, 65 L. T, 449. 
 
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CHAP. XV.] SEPAEATE ESTATE. 383 
 
 Women's Property Act, 1 89 3, Hhe existence of free separate estate 
 is not necessary to the validity of her contract. Where she has 
 separate property part of which is free and part is subject to the 
 fetter, and enters into a contract on which she is sued, but before 
 judgment disposes of free separate property execution on the 
 judgment will not be granted against the property which she is 
 restrained from anticipating.^ 
 
 Where the property is restrained no process can issue against no process 
 it to enforce payment of any claims against a married woman out restrained 
 of arrears of income accruing due after the order of payment has property. 
 been made, whether by judgment against her for default in 
 paying,' charging order," attachment," sequestration,^ bankruptcy 
 notice ;' or by the appointment of a receiver.^ In the case of 
 Hood Barrs v. Cathcarf the Court of Appeal was of opinion that 
 the Married Women's Property Act, 1882, was not intended to 
 enable a judgment against a married woman to be enforced 
 against arrears of her separate estate accruing due after the date 
 of the judgment or order as to which she was restrained from 
 anticipation either by means of a receiver, sequestration, charging 
 order or any kind of process, for section 1 9 of the Act preserved 
 the effect of the restraint, and before the Act after acquired 
 property could not have been reached by her creditors. Arrears 
 that had accrued due before the judgment or the order was made, 
 though in the hands of third persons, have been held attachable.'" 
 Under the Married Women's Property Act, 1 893," the above would 
 still be the law applicable to this subject. 
 
 Where a married woman had only separate property which she 
 was restrained from anticipating, she could not have made a valid 
 contract, yet where she was sued otherwise than in contract, her 
 liability to make good the claim against her was not affected by such 
 fact, though possibly the relief obtained against her might be very 
 slight because of the restraint.'^ 
 
 ^ 56 & 57 Vict., t. 63. See next page. 
 
 ^ I'elton {Bros. ) v. Harrison, (ubi sup.). 
 
 ' Draycott v. Sarrison, 17 Q. B. D. 147. 
 
 * Stanley v. Stanley, {ubi sup^. " Oluipman v. Biggs, {ubi sup.), 
 
 ^ See Be Ijumley, Ex parte Mood Barrs, [1894] 3 Ch. 135. The form of sequestra- 
 tion is general ; but any property subject to the restraint cannot be taken ; Miller v. 
 MHUr, L. R. 2 P. & M. 54 ; Hyde v. Hyde^ 13 P. U. 166. 
 
 ^ Be Lynes, Ex parte Lester, [1893] 2 Q. B. 113. 
 
 ' Pelton (Bros.) v. Harrison {ubi sup.) ; Hood Barrs v. Cathcart, [1894] 2 Q. B. 
 559. [1894] 2 Q. B. 559. 
 
 1° Claydon v. Finch, L. E. 15 Eq. 266 ; Hyde v. Hyde {ubi sup.). It is not, how- 
 ever, certain that if this point came up for consideration again, that the Court would 
 follow the decision in Claydon v. Finch (ubi swpA. See Hood Barrs v. Cathcart, 
 [1894] 2 Q. B. 559 ; Loft-US v. Heriot, [1895] 2 Q- B. 212. 
 ^1 56 & 58 Vict. 0. 63. 
 
 12 Whittaker v. Kershaw, 45 Ch. D. 320. But the decision in this case does not 
 seem to have altogether commended itself to the Court of Appeal in Hood Barrs v. 
 Cathcart, [1894! 2 Q. B. 574. 
 
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384 HUSBAND AND WIFE. [part i. 
 
 Important In one important particular the Married Women's Property Act, 
 
 inoditication „ . -i-n -, ^ «. », . . t-i 
 
 of effect of io93i i'^s mociined the eliect of the restraint m making the 
 restraint^by^^ pi^op^rty affected by it practically non-existent for contractual 
 1893- purposes, for if a married woman enters into an engagement at a 
 
 time when she is restrained from dealing with her property, and 
 subsequently acquires property which has no such fetter upon it, 
 her creditor will now be able to enforce his claim against 
 the latter class of propertj', which formerly he was unable 
 to do. 
 
 As restraint upon anticipation is the same as restraint upon 
 
 alienation a married woman is not bound by her covenant to settle 
 
 after-acquired property where she is left property by will for her 
 
 separate use without power of anticipation ; the capital of personal 
 
 estate so left is not payable to her on her separate receipt.' 
 
 Anticipating is Anticipating is not the same as attempting to anticipate; conse- 
 
 as attempting quently if there is a gift over, if the married woman anticipate, 
 
 to anticipate, g^^j^ gjfj; Q^gp ^jj]^ ^q^ j^^-^q effect if she merely attempts to 
 
 anticipate her interest.^ 
 
 The restraint does not prevent a married woman from being 
 held liable to refund oat of her income money which she was 
 permitted by an erroneous order of the Court to receive which is 
 reversed on appeal, for such liability does not arise out of contract. 
 Her liability to refund extends up to the date of the order 
 reversing the erroneous decision ; but after such date the restraint 
 protects her from any further liability.^ 
 Eestraint This restraint on anticipation is a modification of the right of 
 
 dispensed a married woman over her property which the Court itself cannot 
 '^'*' dispense with,^ except her estate be subject to paramount 
 
 equities, such as for raising costs of suit ;^ and where she is a 
 respondent in a suit for dissolution of marriage on the ground of 
 her adultery, the Divorce Court may deal with it." A married 
 woman who is restrained from aliening her property is not 
 entitled to have such property paid out to her if a fund in court,' 
 or a fund in the hands of those whose duty it is to pay it over to 
 the trustees of her settlement.^ It has been held that the 
 enlargement of an estate in tail to one in fee is no violation of 
 the restraint." The restraint prevents her from dealing with any 
 
 1 Be Curreij, Gibson v. Way, 32 Cb. D. 361. 
 
 2 Be Wormald, Franh v. Muzeen, 43 Ch. D. 630. 
 ^ Be Dixon, Dixon v. Smith, 35 Ch. D. 4. 
 
 « BoUnson v. Wheelwright, 21 Beav. 214 ; affirmed 6 De G. M. & G. 535 ; Ken- 
 rich V. Wood, L. R. 9 Eq. 333. 
 
 '^ Fleming v. Armstrong, 11 L. T. 470. ^ Pratt v. Jenner, L. E. I Ch. App. 493. 
 
 !" Be FUis' Trusts, L. R. 17 Eq. 409. 
 
 8 Be Benton, Smith v. Smith, 19 Ch. D. 277. 
 
 » Coqiyer v. Macdonatd, 7 Ch. D. 278. 
 
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CHAP. XV.] SEPARATE ESTATE. 385 
 
 settled property subject to it, and slie cannot be put to her 
 election in respect of such property, which would result in her 
 alienating the settled property by way of compensation for having 
 exercised her capacity to elect.' Though the Court is loth to Even in cases 
 enable any person to commit a fraud, yet in the case of a restraint 1 married 
 upon anticipation, it will not allow the fetter to be removed even ■«'°™=^°- 
 though the woman has been guilty of gross fraud in respect of 
 the property over which it extends ; and where, in one case, she 
 had property settled to her separate use, with restraint upon 
 anticipation, and concurred in a fraudulent mortgage of such 
 property, concealing the fact of the restraint, a charging order 
 obtained by the mortgagee to charge her next accruing dividend 
 was discharged, for in no case, and by no device, could the 
 restraint be evaded ; ^ and A fortiori there is no equity to apply 
 income which a married woman is restrained from anticipating, 
 to make good the consequences of her fraud, where the restraint 
 upon anticipation appears from the instrument in respect of 
 which relief is sought.' But where she instigates, requests, or Except where 
 consents in writing to a breach of trust by her trustee, the Court truatinstigated 
 may make an order impounding all or any part of her interest in ^^ ^^^' 
 the trust estate, though it is subject to the restraint by way of 
 indemnifying her trustee.* In such a case, however, it is sub- 
 mitted, the trustee would have to prove that she acted for herself, 
 and was fully informed of her position and liability.' 
 
 But by the Conveyancing and Law of Property Act, 1 8 8 1 , Eemovai under 
 it is provided that " notwithstanding that a married woman is c.'*4i,**|. 39. 
 restrained from anticipation, the Court may, if it thinks fit, where 
 it appears to the Court to be for her benefit, by judgment or 
 order, with her consent, bind her interest in any property." ^ 
 it wUl be seen that before this section can be put in force, there 
 are two conditions precedent : firstly, the Court must be of opinion 
 that to remove the restraint will be for the woman's benefit ; '' 
 secondly, she herself must consent to have the restraint removed. 
 
 The power given to the Court under this section of dispensing Eemovai in 
 with the restraint is a discretionary one, and to be exercised with thrcom-t. 
 great caution, and only where a strong case is made for it, and is 
 not necessarily to be exercised merely for the benefit of the 
 married woman.' The section confers no general power of 
 
 ^ Be Vardon's Trusts, 31 Oh. D. 275, overruling Be Quegde's Trusts, 54 L. J. Gli. 
 786, and WiUoughhy v. Middleton, 2 J. ifc H. 344. See Smith v. Lucas, 18 Ch. D. 
 531 ; Be Wheailey, 27 Ch. D. 606 ; OahUl v. Cahill, 8 App. Caa. 420. 
 
 2 Stanley v. Stanley, 7 Ch. D. 589. 
 
 3 Arnold v. Woodhams, L. R. 16 Eq. 30. * 56 & 57 Vict. c. 53, o. 45. 
 ^ See Sawyer v. Sawyer, 28 Ch. D. 595. 
 
 " 44 & 45 Vict. c. 41, sect. 39. ' Be Flood's Trusts, 11 L. R. h: 355. 
 
 8 Be Little's Will, Be Harrison, 36 Ch. J). 701. 
 
 2 B 
 
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386 HUSBAND AND WIFE. [part i. 
 
 removing the restraint.' The following are some cases in which 
 EeHef by relief was granted, and in others refused by the Court. In one 
 granted. Case under the Act, where a married woman was entitled to the 
 
 income of a fund for her separate use without power of anticipa- 
 tion, with remainder in trust for her children, and in default of 
 issue for her appointees by will, and in default of appointment 
 for herself absolutely, and she was childless and past the age of 
 child-bearing, and had contracted a considerable amount of debt 
 which she was desiroiis of paying ofE, the Court made an order 
 removing the restraint ; ^ and in another case the Court removed 
 the restraint where it approved of the terms of a compromise, 
 and the married woman consented to it ; ^ where she had entangled 
 herself in her husband's affairs, and was suffering in health 
 through pecuniary embarrassments, even though she had only a 
 life interest in the fund subject to the restraint ; ^ where two 
 married women were tenants in common of certain house property 
 of which desirable leases could not be obtained because they were 
 restrained from anticipating, and it was also for their benefit that 
 a partition of the settled property should be made, and a settle- 
 ment made in moieties ; " to enable a jointress to consent to the 
 payment out of the purchase money of a settled estate sold under 
 the Settled Land Act, 1882, of mortgages upon the estate over 
 which her jointure had priority." The relief will sometimes take 
 the form of allowing the separate income of the married woman 
 to be applied in paying debts or keeping down the interest on 
 incumbrances.' 
 Belief refused. The Court has refused to grant the relief where it would work 
 a forfeiture of the married woman's interest in the settled fund ; * 
 or where to grant the dispensation would be to give effect to a 
 release executed by the married woman donee of a power of 
 appointment for her own benefit.^ 
 Ooncurrencc In equity a married woman (whose property was subject to the 
 
 cenoe of restraint) who acquiesced in a breach of trust by her trustees was 
 
 womaifm debarred from obtaining relief against them and making them 
 breach of account for the loss sustained through their misfeasance ; '" unless 
 
 truGt. 
 
 ^ Me Warren's Settlement, 52 L. J. Ch. 928. 
 
 ^ Hodges v. Hodges, 20 Ch, D. 749. 
 
 ^ Musgrave v. Sandeman, 48 L. J. 215. 
 
 ^ Be O.'s Settlements, 56 L. J. Ch. 556. 
 
 5 Be Owrrey, Gibson v. Way, 56 L. J. Ch. 389. 
 
 ' Be Marquis of Aileshury and Lord Iveagh, [1893] 2 Ch. 345. In such a case 
 the Court must be satisfied that the amount of the jointure can be raised out of the 
 income of the purchase money. 
 
 ' Be Milner's Settlement, [1891] 3 Ch. 547. 
 
 3 Be Jordan, Kino v. Picard, 55 L. J. Ch. 330. 
 
 * Be Warren's Settlement (uhi sv/p.). 
 1° Hanchett v. Briscoe, 22 Beav. 496 ; Jones v. Higgins, L. R. 2 Eq. 538. 
 
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CHAP. XV. J SEPARATE ESTATE. 387 
 
 her acquiescence had been obtainecl by undue influence.' Where 
 she was herself a party to the breach of trust her trustees were to 
 some extent protected ; and where they claimed a right of retainer 
 against her life interest to indemnify themselves against their 
 breach of trust to which she had been a party, they must have 
 shown that she both acted for herself in the breach of trust, and 
 was fully informed of the state of the case." The merely allow- 
 ing the husband to receive the trust funds in breach of the trust 
 would not bar her remedy against him ; ^ but where her full 
 consent and acquiescence in the course of conduct of her husband 
 or her trustees can be shown, her claim would be barred.^ Where, 
 then, her property is subject to the restraint, her passive con- 
 currence or acquiescence in a breach of trust formerly did not, 
 and does not now, bar her claim to have it remedied.' But now, AoMto con- 
 under the Trustee Act, 1893," where a married woman instigates, breach^of'" 
 requests, or consents in writing to a breach of trust, all or any *''"^' renders 
 
 ^ • " , ' . •' property 
 
 part of her property may be impounded by way of indemnity, subject to 
 though it is subject to the restraint. In such a case, however, it uable.™ 
 is submitted, the trustees would have to prove that she acted for 
 herself and was fully informed of her position and liability.' It 
 is the duty of the trustee to protect his cestui que trust who is 
 restrained from anticipating against herself when asking him to 
 commit a breach of trust on her behalf ; and if he knowingly 
 commit a breach of trust, the Court will be slow to assist him 
 afterwards by removing the restraint on anticipation, and give 
 him a security for the breach of trust to which at the time he 
 had no right to look.^ 
 
 If a married woman entitled in possession for her separate use, Statute of 
 whether with or without a restraint upon anticipation, brings an ™^^ ^ ^°^^' 
 action for breach of trust against her trustee, the Statute of 
 Limitations may be pleaded against her claim.^ 
 
 Where the settled fund is not itself dealt with, the Court will "When trustees 
 make an order binding the married woman's interest without the served" ^ 
 trustees being served with the notice.'" 
 
 Whether the married woman's consent to bind her interest How married 
 should be evidenced in the ordinary formal way or not seems TOnTent^ 
 
 given. 
 
 ^ See HugTies v. Wells, 9 Ha. 749. 
 
 2 Ryder v. Biclcerton, cited 3 Swanst. 80 ; Sawyer v. Sawyer, 28 Ch. D. 595. 
 ^ Mugh.es v. Wells (uhi sup.). 
 
 ^ See Edwards v. Cheyne, 13 App. Cas. 385 ; Hale v. Sheldrake, 60 L. T. 292. 
 = Cocker v. Quayle, E. & M. 535 ; Pemherton v. M'Oill, 8 W. E. 290 ; Arnold ^ 
 Woodhams, L. E. 16 Eq. 29. 
 
 * 56 ^ 57 "^ict. 0. 53, s. 45. ' See Sawyer v. Sawyer (ubi sup.). 
 
 8 Sicketts V. Bicketts, 64 L. T. 263 ; Bolton v. Curre, [1895] I Ch. e,iA. 
 s SI & 52 Vict. c. 59, s. 8 (J). 
 ^^ Be Little's Will, Be Harrison, 36 Ch. D. 701. 
 
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388 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Limitation of 
 power of 
 Divorce 
 Court. 
 
 Kule against 
 
 doubtful. In Hodges v. Hodges,^ Fry, J., dispensed with it on a 
 strong affidavit of the married woman herself ; but in Musgrave v. 
 Sandemanf Pollock, B., directed the married woman's separate 
 examination before himself. 
 
 Applications under this Act must be summons only.' 
 
 This section does not seem to enable the Court to deal with 
 the property of a married woman who has been guilty of a 
 deliberate fraud in respect of her separate estate, for her con- 
 sent is necessary, and if she withhold it the Court is power- 
 less.'' 
 
 The Divorce Court has no jurisdiction except after a final 
 decree of nullity of marriage under the Matrimonial Causes Act, 
 1859,'^ to make a settlement of a married woman's property which 
 is subject to this restraint ; consequently it has no power to order 
 a settlement of a wife's property subject to this restraint under 
 section 3 of the Matrimonial Causes Act, 1884," where she has 
 refused to comply with a decree obtained by her husband for 
 restitution of conjugal rights.' 
 
 Under the Settled Estates Act, 1877,^ and the Settled Land 
 Act, 1 8 82," restraint upon anticipation does not prevent a married 
 woman from exercising her powers under those Acts. Though a 
 married woman may, under section 40 of the Conveyancing Act, 
 1 88 1, appoint an attorney to receive dividends and income which 
 she is restrained from anticipating, yet such power will not be 
 allowed to operate to get rid of the restraint.'" The order of 
 Court enabling her so to receive her income should set out on its 
 face the restraint upon anticipation.'' The restraint must not 
 
 not^e'offemJed o^e^tl against the rule against perpetuities, otherwise it will be 
 against. ineffectual and void.'" It is true that in Herlert v. Webster,^^ and 
 
 Cooper v. Laroche,'^* effect was given to the clause imposing the 
 restraint, though it offended against the above rule, but the latter 
 case was not followed by Chitty, J., in Be Davjson, Johnston v. 
 Hill;^^ and in Be Bidley, Bitcldon v. Hay,^^ Jessel, M.E., came, no 
 
 1 20 Ch. D. 749. ^ 48 L. T. 215. 
 
 ' 44 & 45 Vict. 0. 41, sect. 69 (3). Be Lillwall's Settlement, 30 W. E. 243 ; 
 Latham V. Latham, W. N. 1889, 171. 
 
 ^ Thomas V. Price, 16 L. J. Ch. 76 ; Stanley v. Stanley, 7 Cb. D. 589. 
 
 5 22 & 23 Vict. 0. 61, a. 5. '^ 47 & 48 Viot. c. 68. 
 
 ' MichellY. Michell, [1891] P. 208 ; and see Simft v. Swift, [1891] P. 129, order 
 of Sir J. Hannen modifying order of Butt J., 15 P. D. 118. 
 
 8 40 & 41 Vict. c. 18. ' 45 and 46 Vict. c. 38. 
 
 1° Stewart v. Fletcher, 38 Ch. D. 627, in which decision is set out the proper order 
 io be drawn up in such a case. 
 
 " Ihid. 
 
 ^^ Be Teague's Settlement, Jj. R. 10 Eq. 564 ; Be Oimningham's Settlement, 11 Eq. 
 324; Be Michael's Trusts, 46 L. J. Ch. 651 ; Be Bidley, Buckton v. Hay, 11 Ch. D. 
 
 ■645- 
 
 iSijCh. D. 10. I'' 17 Ch. D 168. 1" 39Ch. D. 155. ^^ Vbi sup. 
 
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CHAP. XV.] SEPARATE ESTATE. 389 
 
 doubt, with reluctance to his decision, but the current of authority- 
 is in favour of the proposition that the restraint is void. The 
 fact that the persons on whom the restraint would operate are in 
 esse at the time of making the limitation is immaterial if the 
 restraint offends against the rule.' Where the limitation on 
 which the restraint is to take eifect does not offend against the 
 rule but the restraint does, the former will have effect given to it 
 though the latter will be rejected.^ Alimony which has been 
 decreed to a married woman is in the nature of separate property, 
 subject to restraint against anticipation, and cannot be assigned 
 by her.' 
 
 As an incident of her undoubted right to dispose of her Election by 
 separate property, a married woman was liable to be put to her women. 
 election whether she would take under or against a deed by 
 which she became entitled to property ; ^ but she cannot be put 
 to her election so to affect her non-separate property ; nor can 
 she be bound (if affected by the former rules of equity or the 
 Married Women's Property Act, 1882) in respect of property 
 which is not in existence at the date of the election;* but it 
 would seem that under the Married Women's Property Act, 1893, 
 if not otherwise disabled from electing, she might by her election 
 affect future property. Where it becomes a question whether a 
 married woman should take under or reject the provisions of the 
 same instrument, the equity doctrine of election applies to her, 
 and she must exercise her election in the matter. The doctrine Doctrine of 
 
 /. 1 ... -1 -1 , . xi j_ • 1 • election based 
 
 of election is based on compensation — that is, making up an on compensa- 
 equivalent to those who are disappointed by the act of election. *'"''• 
 It is also founded on the presumption of a general intention that 
 every part of an instrument shall take effect ; but the presumption 
 of such general intention may be rebutted by an inconsistent 
 particular intention apparent in the instrument.' This question 
 of election in the case of a married woman usually arises where 
 she (as an infant) has by her settlement had property settled on 
 her, and in. the same instrument she covenants to settle after- 
 acquired property, which covenant she repudiates or disaffirms 
 on reaching majority or when the time comes for enforcing the 
 covenant. But if she never was in a position to elect, she cannot 
 be compelled to do so.' This question will be discussed more 
 
 ' He Ridley, Buckton v. Hay (uhi sup.). 
 
 2 Pry V. dapper, Kay, 163, and see Armitage v. Coates, 35 Beav. i. 
 
 ^ Be Bobinson, 27 Ch. Div. 160 ; Linton v. Linton, 15 Q. B. D. 239. 
 
 ■* Barrow v. Barrow, 4 K. & J. 419. 
 
 ^ See Smith v. Lucas, 18 Ch. D. 531. 
 
 ^ I Swanst. 404 (n) ; Be Vardon's Trusts, 31 Ch. D. 275, 
 
 ' See Harle v. Jarman, [1895] 2 Ch. 419. 
 
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390 HUSBAND AND WIFE. [paet i. 
 
 fully in Part IV. chap, iv., -whicli deals with the marriage settle- 
 ments of infants. 
 Married A married woman who is restrained from anticipating a fund 
 
 subject to ^y tlie instrument of settlement cannot be put to her election in 
 bound to elect. ^6^?^°* of Other property acquired by her under the same instru- 
 ment, for the rule of not claiming by one part of an instrument 
 in contradiction to another part has exceptions, and the ground 
 of exception seems to be a particular intention denoted by the 
 instrument different from that general intention, the presumption 
 of which is the foundation of the doctrine of election ; ' and the 
 restraint against anticipation over the settled fund is a declaration 
 of a particular intention inconsistent with the doctrine, and there- 
 fore excludes it.^ 
 
 Section 5. 
 
 Separate Property in respect of which Liability exists. 
 
 Separate This scction deals with the property of a married woman which 
 
 property in re- , , . . ,.„,,.,.,.. 
 
 speot of which Can be taken in execution to satisfy her liabilities, 
 habihty exists. rjij^g general engagements of a married woman could formerly 
 property pos- only be enforced against so much of her separate estate to which 
 time of enter- she was entitled free from restraint upon anticipation at the time 
 ing into the ^hen the engagements were entered into, as remained at the 
 
 engagement. _ ^ .° . ' _ 
 
 time when the judgment was given, and not against the separate 
 property to which she became entitled after the time of making 
 the engagements, nor against separate property to which she was 
 entitled at the time of making the engagements subject to a 
 restraint on anticipation.' It was laid down in King v. Lucccs ' 
 that, under the former state of the law, to have entered into 
 a contract which could have been enforced against her, a 
 married woman must have had some free property existing 
 at the date of the contract. The reason for holding that only 
 that separate property should be bound which was in exist- 
 ence at the time of making the contract was no doubt due 
 to the early theory that the married woman intended to charge 
 specifically her separate estate with the amount of her debts and 
 engagements. 
 Property rjij^g, Married Women's Property Act, 1882,^ provides that 
 
 acquired after _ . 7 
 
 contract under " everv contract entered into by a married woman with respect to, 
 
 M W P A . . jr ! 
 
 1882. ■ ■ " and to bind her separate property, shall bind not only the 
 
 1 I Swanst. 404 (m). ^ He Vardon^s Trusts, 31 Ch. D. 275. 
 
 s Pike V. Fitzgihhon, 17 Ch. D. 454, overruling Flower v. Bidler, 15 Ch. D. 
 665. 
 
 * 23 Ch. D. 712. ^ Sect. 1, siih-s. 4. 
 
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CHAP. XV.] SEPARATE ESTATE. 391 
 
 separate property which she is possessed of or entitled to at the 
 date of the contract, but also all separate property which she may 
 thereafter acquire." Section 19 of the same Act, as has been 
 seen in the previous Section, preserves the effect of the restraint 
 upon anticipation, unless its operation is to withdraw property 
 that ought to be taken to satisfy the claims of her creditors. 
 The effect of these sections renders future acquired property of a 
 married woman without a restraint against anticipation upon it, 
 or with a restraint that is improperly imposed on it, liable for 
 her pre-existing debts which have been contracted since the Act 
 came into force. But section i, sub-section 4, is not retrospective 
 in its operation.' 
 
 Under this Act the married woman must have some free Married 
 separate property at the date of the contract, to render it en- possess some 
 forceable against her ; ^ if she has no free separate property at S^'dateT/''^ 
 the time of entering into a contract, the future acquired property contract, 
 will not be bound by her previous engagement. It is not neces- 
 sary that such free separate property should be of a large 
 amount, or of any particular description, but she must reasonably 
 be deemed to have contracted in respect of it.' 
 
 But in respect of contracts made by a married woman after M. w. p. Act, 
 December 5, 1893,* the existence of separate property at the g^^j^^^^g ^j 
 time of making a contract is not necessary to its validity ; ° and separate 
 her after-acquired property is liable to be taken in execution in necessary at 
 respect of such contract. The later Act repeals section i , sub- fo* tr°ct 
 section 4 of the Married Women's Property Act, 1882, and 
 all the cases decided under that sub-section are no longer 
 authorities as to contracts effected since the date of the coming 
 into force of the recent A.ct, but the new provision is not 
 retrospective. 
 
 Separate property, however, subject to a restraint against Property 
 anticipation, was not liable for debts contracted by a married restraiiit*iipon 
 woman, and it was only as to property unaffected by this fetter anticipation 
 that she was considered to be in all respects as a feme sole, so 
 that all her property could be made liable to satisfy the claims of 
 her creditors. 
 
 The Married Women's Property Act, 1882, does not interfere m. w. P. Act, 
 with or render inoperative any restriction against anticipation at preserves the 
 
 effect of 
 
 ^ Conolan v. Leyland, 27 Ch. D. 632 ; Turnhull'v. Forman, 15 Q. B. D. 234. 
 £wrdU V. Tomner (13 Q. B. D. 691), to the contrary held to be wrong. 
 
 2 Palliser t. OurTiey, 19 Q. B. D. 519 ; Stogdon v. Lee, [1891] i Q. B. 661 ; Ee 
 Shaksvear, Beakin v. Lalcin, 30 Ch. D. 169. 
 
 3 Marrison v. Sarrison, 13 P. D. 180 ; Leahe v. Driffield, 24 Q. B. D. 98 ; 
 Braunstein v. Lewis, 15 L. T. 449 ; Everett v. Paj.ion, 65 L. T. 383. See ante, 
 chap. xiv. p. 287. 
 
 ^ Date of the passing of 56 & 57 Vict. c. 63. ' Sect, i (a). 
 
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•592 HUSBAND AND WIFE. [part i. 
 
 present attached or to be hereafter attached to the enjoyment of 
 any property or income by a woman under any settlement, agree- 
 ment for a settlement, will, or other instrument; but no restriction 
 against anticipation contained in any settlement or agreement for 
 a settlement of a woman's own property to be made or entered 
 into by herself shall have any validity against debts contracted 
 by her before marriage, and no settlement or agreement for 
 a settlement shall have any greater force or validity against 
 creditors of such woman, than a settlement or agreement for a 
 settlement made or entered into by a man would have against 
 his creditors.^ 
 M. w p. Act, The Married Women's Property Act, 1893,^ also provides that 
 preserves it; " nothing in this Section contained shall render available to satisfy 
 any liability or obligation arising out of such contract, any separate 
 property which at that time or thereafter she is restrained from 
 anticipating." There is, then, no difference in the principle of 
 the law before and after the late Acts with regard to separate 
 property which a married woman is restrained from anticipating 
 being rendered not liable for her engagements entered into during 
 coverture, unless the restraint has been imposed by herself under 
 such circumstances that the Court would not give effect to it ; 
 except in ease though there is an exception to this proposition of law under the 
 improper -^ct of 1 89 3, in the case of an action or proceeding instituted by 
 rie*d°woman*' ^ married woman or a next friend on her behalf, in which the 
 Court may order the costs of the opposite party to be paid out of 
 her property subject to such restraint.^ This provision is not 
 retrospective,^ and does not apply to an appeal by her in an action 
 in which she is a defendant.^ But the Court has allowed the 
 restraint to be removed to enable a married woman to pay the 
 costs of an unsuccessful action instituted by her before the Act 
 came into force." 
 What property The corpus of property settled to the separate use of a married 
 
 may be taken. , . . . , ^ . . , . . -i 1 1 
 
 woman subject to no restraint agamst anticipation is available to 
 satisfy her liabilities, and may be taken in execution,' and the 
 settled separate property, equally with unsettled property, of a 
 married woman, whether corpus or income, may be so taken.* 
 Income or arrears arising from property subject to the restraint 
 that have accrued due after the act that results in the liability of 
 a married woman is free separate property, which can be attached 
 
 1 Sect. 19. ^ Sect, i, proviso. ' Sect. 2. 
 
 * Re Lumley, Ex parte Hood Barrs, [1894] 3 CIi. D. 135. 
 
 ^ Hood Barrs v. Oathcart, [1894] 3 Cb. 376. 
 
 " Be Godfrey, Thome v. Godfrey, 63 L. J. Cb. 854. 
 
 '■ See Norton v. Turvill, 2 P. Wma. 144 ; Picard v. Hine, L. B. 5 Cb. App, 274. 
 
 " Be Armstrong, Ex parte Boyd, 21 Q. B. D. 264. 
 
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CHAP. XV.] SEPARATE ESTATE. 393 
 
 when found in the hands of the married woman or of those hold- 
 ing it on her behalf.' 
 
 Income or arrears of income arising from separate estate so What not. 
 fettered accruing due previous to the act that constitutes her 
 liability cannot be attached to make good that liability.^ As long 
 as the fetter of the restraint exists her future separate income 
 cannot be attached by the appointment of a receiver, for the 
 appointment of such receiver is inconsistent with her disability 
 to anticipate, or by sequestration, charging order, or any kind 
 of process ; ^ also arrears of income that has accrued due after 
 the date of the judgment against the married woman cannot be 
 attached/ 
 
 Section i, sub-section c, of the Married Women's Property Property 
 Act, 1893,* enacts "Every contract hereafter entered into by a^^j'e^" 
 married woman .... shall also be enforceable by process of law Jg™*gr7''™ 
 against all property which she may thereafter, while discovert, be liable. 
 possessed of or entitled to." The effect of this sub-section is to 
 render property coming to a woman when discovert, which is 
 neither strictly nor technically " separate property^" liable under 
 process of law for debts and contracts entered into by her during 
 coverture. In equity and under the Married Women's Property Distinction 
 Act, 1882, non- separate property was held not liable to make Jjfj^TeTSiw and 
 good her post-nuptial liabilities, and property accruing to her Ii**-rS"p "^ . 
 when discovert was not of the nature of separate estate (for 1893. " 
 the separate use implied a proprietary interest in the wife 
 apart from that of the husband), unless she married again, 
 and in consequence became her separate estate." In Pelton 
 {pros.) v. Harrison^ Kay, L. J., held that section i, sub-section 4, 
 of the Married Women's Property Act, 1882, was not intended 
 to make any property acquired by a woman when discovert, or 
 any property, though separate property, as to which during 
 coverture she was restrained from anticipating liable to execu- 
 tion. A distinction is to be drawn between separate property 
 and non-separate property, and the proviso in section i of the 
 later Act preserves the effect of a valid restraint upon anticipa- 
 tion ; therefore while all the separate property which under sub- 
 section (c) of the same section is bound by her contracts must be free 
 in its nature, the property acquired by her when discovert cannot 
 have this fetter laid upon it, but is free for all purposes, including 
 
 1 Per Cotton, L. J., in Re Qlanvill, Ellis v. Johnson, 31 Ch. D. 532 ; Hyde v. Eyde, 
 13 P. D. 166. 
 
 2 Me Qlanvill, Ellis v. Johnson (uhi sup. ). 
 
 3 JBood Barrs v. Oathcart, [1894] 2 Q. B. 559. ^ Ihid. 
 
 5 56 & 57 Vict. c. 63. ' See Jay v. BoUnson, 25 Q. B. D. 467. 
 
 !■ [1891] 2 Q. B. 427. 
 
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894: 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Property 8ub- 
 
 the satisfaction of post-nuptial claims against her.' Thus; the 
 general decision in the two cases of Beckett v. Taslcer,^ and Pelton 
 {Bros.) V. Harrison,^ to the effect that separate estate with a 
 restraint against anticipation, belonging to the married woman 
 when entering into a contract, whether imposed by a stranger or 
 herself, is not property liable to satisfy a judgment in respect 
 of such contract obtained when she is discovert remains the 
 law; while the holding of Kay, L.J,, in the latter case, that 
 property acquired by a woman when discovert is not liable 
 to execution to satisfy contracts made by her during coverture 
 is no longer law as regards contracts made after December 5, 
 1893. 
 
 There is another class of separate property which is, under 
 
 power of "^"^^ certain circumstances, liable to satisfy the claims of a married 
 appointment, woman's Creditors, that is, property over which she has a general 
 power of appointment by will or deed, or by will only. A general 
 power of appointment by deed or will, unaccompanied by any 
 restraint on anticipation, renders a married woman mistress of the 
 fund over which she can exercise it, on the ground that in common 
 sense and to common apprehension it is an absolute gift to her 
 sole and separate use.* So, too, where there is such general 
 power of appointment with remainder on certain contin- 
 gencies which are fulfilled.' " The true view seems to be this, 
 that for the purpose of giving effect to the general engagements 
 of a married woman, if property is settled upon her for life with 
 power to dispose of it by deed or will so as to be subject to her 
 general engagements ; " ^ and " if property is settled on her for 
 her life, with power to dispose of it by deed or will ; of course 
 Particular where there is no restraint on anticipation it is separate property, 
 jpower. ^^ ^g ^^ 1^^ subject to such engagements." ' This rule has been 
 
 applied where a particular power has been conferred upon a 
 married woman, even where restrained from anticipating; for 
 where a married woman tenant for life, without power of anticipa- 
 tion, had a special and particular power to direct repairs to be 
 done and charged upon her estate, and she employed a person to 
 execute them, she was held liable to pay the amount incurred, 
 which was to be raised by a charge on her estate ; ' and it is 
 immaterial whether the estate precedes the power or the power 
 
 1 Sub-sect. c. 2 ,9 Q. B. D. 10. ^ [iggj] 3 Q. B. 427. 
 
 * London Chartered Bmik of Australia v. Lempriire, L. E. 4 Jf. C. 572. In this 
 case iSkattock v. Shattoch (L. R. 2 Eq. 182) was dissented from. See Jenney v. 
 Andrews, 6 Madd. 264. 
 
 6 Mayd v. FieU, 3 Uh. D. 587. 
 
 " Per Jessel, M. B., in Mayd v. Field (vhi sup.). 
 
 ^ Ibid, 45 L. J. Ch. 704. " Sldnner v. Jhdd, 51 L. J. Ch. 198. 
 
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CHAP, xv.J SEPARATE ESTATE. 395 
 
 the estate.' This view is not really easy to reconcile with the 
 principle of the decision in Pike v. Fitzgibhon ' before the Married 
 Women's Property Act, 1882, and in Falliser v. Giorney,^ after 
 that Act; viz., to render the contract of the married woman 
 valid and binding she must possess free separate property at the 
 time of entering into it ; for, if at such a time she had no other 
 property than that over which she possessed this generalpower of 
 appointment, strictly speaking, she was without any property at 
 all, for the power over property is quite distinct from property 
 itself.* 
 
 Property subject to the power is liable for her debts : (a) Where What Umita- 
 the limitations are to her for life for her separate use without property liable, 
 restraint upon anticipation with remainder as she may appoint by 
 deed or will with remainder to her heirs or assigns, or executors 
 and administrators (as the case may be) ; * and where the limita- 
 tions are the same but are contingent on the happening of a 
 certain event which has taken place, for such limitations amount to 
 an absolute interest in the property ;" (6) where the limitations are to 
 her for life for her separate use without restraint upon anticipation 
 with remainder as she may appoint by deed or wUl, with remainder to 
 third persons who are volunteers, and she executes the power in 
 such a way as to make it her own separate estate, and previously 
 to the accruing of the liabilities ; ' (c) where the power of appoint- 
 ment is by wUl only, and the power is exercised in favour of her 
 creditors, as by charging the property subject to the power with 
 the payment of her debts.' 
 
 But the property is not subject to the payment of her debts What limita- 
 and liabilities, where (a) there is a limitation to third persons in 
 default of appointment and the power has not been exercised ; 
 (6) where the power is to be exercised by will only, and has been 
 exercised by her but not for her creditors. The law on this Power of 
 subject has been quite unsettled. The cases of Httghes v. Wells,^" by will only. 
 Me Harvey's Estaie, Godfrey v. Harhen,^^ and Hodges v. Hodges,^'' were 
 to the effect that it was liable ; while /Sbc/ce^^ v. Wray,^^ Vaughanv. 
 
 1 Mayd v. Meld (uU sup.). ^ 17 Oh. D. 454. 
 
 3 19 Q. B. D. 519. 
 
 * Nail V. Punter, 5 Sim. 555 ; Be Annstrong, Ex parte Gilchrist, 17 Q. B. D. 521. 
 
 ' London Chartered Bank of Australia v. Lewpriire (aJi swp^. 
 
 ^ Mayd v. Field (uhi sup. ). 
 
 ' Farwell, on Powers (2iid Edit.) 263. See Be Boper, Doneaster v. Boper, 39 Ch. 
 D. 482. 
 
 8 Owens V. Dickenson, 4 Jur. 1151. Be De Burgh Lawson, De Burgh Lawson v. 
 De Burgh Lawson, 41 Ch. D. 568. 
 
 " See Nail v. Punter (ubi svp.) ; Johnson v. Gallagher, 30 L. J. Ch. 298 ; per 
 Tamer, L. J. 
 
 i» 9 Ha. 749. " 13 Ch. D. 216. 
 
 12 20 Ch. D. 749. 13 4 Bro. C. C. 483. 
 
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39G HUSBAND AND WIFE. [part i. 
 
 Vanderstegen,^ and Shattock v. Shattock,^ were to the opposite 
 effect. Lastly, in Be Roper, Boncaster v. Roper ^ Kay, J., decided 
 that a mere power is neither " property " nor " separate property," 
 and held that the execution of a power of appointment by will 
 over a fund by a married woman did not render it liable to satisfy 
 her obligations incurred before the execution of the power and 
 the date of the coming into force of the Married Women's 
 Property Act, 1882. He also doubted whether, if such debts or 
 obligations had been contracted after section 4 of the Act had 
 come into forcej but before the execution of the power by the 
 married woman, the execution would have rendered the appointed 
 property liable for debts incurred before the execution of the 
 power because it is the execution of the power that renders 
 the fund liable. If the married woman possessed no free separate 
 property at the time of incurring liabilities, even assuming the 
 appointed fund to be separate property subsequently acquired, 
 it would not be bound because she was under no valid or 
 efiective liability.'' This case must be taken to have settled 
 the law so far as cases not affected by the Married Women's 
 Property Act, 1882. 
 M. w. P. Act, Section 4 of that Act provides that " the execution of a general 
 power by will by a married woman shall have the effect of making 
 the property appointed liable for her debts and other liabilities in 
 the same manner as her separate estate is made liable under this 
 Act." These words are wide enough to make the property over 
 which a married woman has exercised her power by will liable to 
 satisfy her liabilities, even when, at the time of incurring them, 
 she had no free separate property ; and this has been so decided 
 by Kekewich, J.* 
 M. w. p. Act, Under the Married Women's Property Act, 1893,^ this ques- 
 ^ ^^' tion is set at rest ; for as under the above section of the Act of 
 
 1882 the execution of a power renders the appointed fund liable 
 as though it were separate property, and such would be sub- 
 sequently acquired property if execution followed the incurring 
 of the liability ; now, under sub-section (a) of section i of the 
 Act of 1893, the existence of separate property at the time of 
 incurring a debt or liability is not necessary to render sub- 
 sequently acquired property liable to make good such liability, 
 and it is immaterial whether the execution of such power precedes 
 
 1 2 Dr. 165. 2 L. E. 2 Eq. 182. ^ jg Qh. D. 482. 
 
 ^ FiUe V. Mtz^ibhon, 17 Ch. D. 454. 
 
 ^ Be Ann, Wilsons. Ann, [1894] i Ch. 459. It is clear that if at the time of 
 entering into her liabilities she has free separate property, her execution of the general 
 power of appointment by will renders the property bound, 
 
 ° 56 & 57 Vict. c. 63, sect. I, sub.-s. (a). 
 
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CHAP. xv.J SEPARATE ESTATE. 397 
 
 or not the incurring of the liability; consequently if a married 
 woman having a general power of appointment over property by 
 will only contracts debts and executes the power by her will, such 
 property will become bound to satisfy her debts. 
 
 Where a married woman in executing the power directs that Direction to 
 her debts shall be paid out of the appointed fund, such becomes msUces 
 assets for that purpose, though at the time of contracting the pi'op«»'tyiiabie. 
 ■debts she was restrained from anticipating, and had no free 
 separate property ; ' but even where she does not so charge the 
 appointed fund with the payment of debts or funeral expenses, 
 but exercises her power of appointment over it, her husband, if 
 executor, will be entitled to charge her funeral expenses against 
 the appointed fund.^ 
 
 A fund over which a married woman possesses a general power Appointed 
 
 ,.,. -,.,., .Ji fiind liable for 
 
 ot appointment which is executed by her, is liable to satisry her ante-nuptiai 
 ante-nuptial obligations.^ Though the Court will not decree specific ° ''S*''°'^^- 
 performance of a covenant or contract to have property by will 
 entered into by a mere donee of a testamentary power of ap- 
 pointment, yet the covenantors are entitled to recover by way of 
 damages from those in whose power the married woman has 
 executed the power in breach of her contract to the extent of the 
 assets which would have come into the hands of the covenantors 
 if the appointment had been actually made in their favour.^ 
 
 Section 6. 
 
 Questions between Husband and Wife as to their Property. 
 
 In case any dispute arise between husband and wife as to Disputes aa to 
 what is or is not their respective property, or between husband tive'property 
 and wife and any bank, corporation, company, or society in whose bandTnd'^wife 
 books the property in dispute is standing, a summary method of 
 ■dealing with and settling them is provided by the Act of 1882,^ 
 which somewhat extends the provisions of section 9 of the 
 Married Women's Property Act, 1870. The hushand or wife, or 
 the bank, corporation, &c., affected " may apply by summons or 
 otherwise in a summary way to any judge of the High Court of 
 Justice in England, according as such property is in England or 
 in Ireland, or (at the option of the applicant, irrespectively of 
 the value of the property in dispute) in England to the judge of 
 the County Court of the district, or in Ireland to the chairman 
 
 ^ Re De Burgh Lawson, De Burgh Lawson v. De Burgh Lawson, 41 Ch, D. 568. 
 2 Be M^Myn, lAghtbown v. JI'^Myn, 33 Ch. D. 575. 
 ' Be Parkin, Hill v. Hchioarz, [1892] 3 Ch. 510. 
 ^ Ibid. 5 45 & 46 Vict. c. 75, s. 17. 
 
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398 HUSBAND AND WIFE. [pabt i, 
 
 of the Civil Bill Court of the division in which either party resides, 
 and the judge of the High Court of Justice, or of the County 
 Court, or the chairman of the Civil Bill Court (as the case may be), 
 may make such order with respect to the property in dispute, and 
 as to the costs of and consequent on the application, as he thinks 
 fit, or may direct such application to stand over from time to 
 time, and any inquiry touching the matters in question to be 
 made in such manner as he shall think fit." ' The application 
 may be heard by the judge, &c., in his private room. The registrar 
 of the Court of Probate has no jurisdiction to make the order." 
 
 Position of The position of the bank, corporation, &c., affected by the 
 
 of a stake- dispute is that of a stakeholder only. 
 
 holder only. -^^^ ^-^^^^ a^]l j^j^^g ^f property, whether of much or little 
 
 value, coming to a married woman form her separate estate, 
 this section is likely to prove of considerable importance and 
 application. It is intended to be applied where one of the 
 spouses claims the title to or possession of property which is 
 denied by the other, the one seeking to attach to it the quality of 
 separate estate, and the other asserting that it is his property, 
 unaffected by the rights of his wife. The questions most likely 
 to arise are in cases where the husband, married to his wife before 
 the Married Women's Property Act, 1882, alleges that a fraud 
 was committed on his marital rights by his wife having with- 
 drawn from him and settled property to which he was entitled. 
 This is a complaint in which a husband married since January i, 
 1883, can no longer indulge, for he does not possess any marital 
 right in his wife's property. Also, in cases unaffected by the 
 Act, where the husband reduces choses in action of the wife into 
 possession, and she claims to be entitled to her equity to a settle- 
 ment ; ' also, such questions as whether the husband has or has 
 not effectually reduced the wife's choses in action into possession. 
 Also, where there have been savings by the wife, claimed by her 
 as her own, and alleged by the husband to be the proceeds of his 
 own property, and to which his wife has no title, or where moneys 
 have been appropriated by the wife without her husband's consent. 
 The savings of a wife from an allowance made to her by her 
 husband for household purposes, cannot without his consent be 
 invested to her separate use,'' unless she be living separate from 
 
 ^ There are provisions in the section enabling the order of the judge, &c., to be 
 appealed from, as in ordinary mattei's, and for removal by certiorari of the proceedings 
 in the County Court or Civil Bill Court in the High Court of Justice in England or 
 Ireland. See ^osi, Appendix, p. 415. 
 
 2 Wood V. Wood and White, 14 P. U. 157. 
 
 5 For the right of the wife to an equity to a settlement, see cbap. x. Proprietary 
 Eights of the Spouses in each other's Property created by Coverture, pp. 207 et seq. 
 
 ^ Barracli v. M'CuUoch, 5 W. E. 38. 
 
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CHAP. xv.J SEPARATE ESTATE. 39& 
 
 him;' and where she is so living apart from him, he cannot recover 
 them from her during her lifetime," but after her death he can 
 claim them.' So where after marriage moneys of the husband 
 have been similarly appropriated without his consent, such moneys, 
 and all investments thereof, will remain in equity his property.^ 
 Proof by the wife that the proceeds were derived from her separate 
 estate throws the burden of proof that they were the husband's 
 on his representatives.'' 
 
 Again, where separate property of the wife has come into the 
 possession of the husband, she will be bound by her dealings in 
 respect of it ; '' and will obtain relief only on proof of fraud, 
 duress, or the like, on the part of the husband.' But the cause 
 of dealing must be distinctly proved, and the intention of the 
 wife to make over her property to her husband must be clear ; * 
 whereas there must be corroborative evidence to establish a gift 
 from husband to wife." She may make a gift of her separate 
 property to her husband for his own use, or that of the family or 
 household,'" but the onus lies upon the husband of proving that a 
 gift was intended," and that he has not influenced her act and 
 conduct. '^ This omis is still likely to exist under the new law ; 
 and' it may possibly be that a married woman will not be per- 
 mitted to give a fund in court to her husband without having 
 her consent first taken in court.'' She may expressly authorize 
 or tacitly allow her husband to receive the income of her separate 
 property, and if it be received for the benefit of the family she 
 can claim no reimbursement ; "■ but where she has neither expressly 
 nor tacitly authorized him to receive it, she will be allowed to 
 recall it.'* Ignorance of her rights is not to be taken as an 
 assent on the part of the wife." Thus, where she was ignorant 
 of an improper sale of her trust funds, her assent to her 
 husband's receipt of subsequent dividends was not to be pre- 
 sumed." 
 
 For the purposes of income-tax the profits of any married Income tar 
 woman living with her husband shall be deemed the profits of profits. 
 the husband, and the same shall be charged in the name of the 
 
 ' SrooJee\. Broohe, 31 L. T. 0. S. 244. 2 7j,v7. 
 
 ^ Messenger y. Clarke, 19 L. J. Ex. 306. 
 ^ Barrack v. M'Culloch (ubi sup.). ' Ibid. 
 
 ^ Pawlet V. Delaval, 2 Ves. 663. ' Essex v. Atkins, 14 Ves. 542. 
 
 * Rich V. Cockell, 9 Ves. 369. ' Grant v. Qrant, 13 W. B. 1057. 
 
 1" Gardner v. Gardner, i Giff. 126. ^^ Rich v. Cockell, 9 Ves. at p. 375. 
 
 12 Hughes v. Wells, 9 Ha. 749. 
 
 13 See Wadsworth v. Dayrell, 4 W. R. 689. 
 
 1'' Powell V. Hankey, 2 P. Wms. 82 ; Caton v. Rideout, i Mac. & Gr. 599. 
 
 15 Parker v. Brooke, 9 Ves. 583. 
 
 1^ Per Jessel, M.B., in Dixon v. Dixon, 9 Ch. D. 592. 
 
 17 Dixon V. Dixon {ubi sup.). 
 
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400 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 husband, and not in her name or that of her trustee.' Where, 
 therefore, husband and wife are in the receipt of a joint salary, 
 the profits of the wife were rightly charged as the profits of the 
 husband, and no deduction for the purpose of abatement or 
 exoneration could be made, notwithstanding the Married Women's 
 Property Act, 1882.^ Down to the present time it has been the 
 practice of the Inland Revenue Department to treat the separate 
 "profits" (including therein " income") of a married woman as 
 part of the income of the husband where they were living 
 together, though to do so now is contrary to the spirit and 
 letter of the Married Women's Property Act, 1882.' There 
 Finance Act, is a partial recognition of this fact in the Finance Act, 1894,* 
 for where the joint income of husband and wife is derived 
 from any profession, employment, or vocation chargeable under 
 Schedule D, or from any office or employment of profit charge- 
 able under Schedule E, such income shall be treated as separate 
 claims by husband and wife for the purposes of exoneration or 
 abatement. The husband is liable to give an account of the 
 moneys he has with the consent of his wife received to her use ; " 
 or where he has received them as her trustee and not as her 
 husband." Where the wife has obtained a decree of judicial 
 separation and claims certain property to be of her separate 
 estate, such question may be litigated under this 17th section.' 
 Such questions as these will most frequently arise under this 
 section, and be litigated between husband and wife. A fuller 
 discussion of the law relating to gifts between husband and wife 
 will be found in chapter xiv., Contracts by Married Women, 
 pp. 292 6^ seq. 
 
 Section 7. 
 Bemedies of Married Women in Respect of their Property. 
 
 Eemedies of Married women have very full remedies given them for the pro- 
 married tection and security of their property.* They have complete civil 
 
 women m ui^v^ui.^ j ^ f . *^ . . . - 
 
 lespectof their remedies against all persons, including husbands, tor injuries done 
 
 property. 
 Civil remedies. 
 
 1 5 & 6 Vict. 0. 35, 8. 45. „ ^ ^ , 
 
 2 Bowers v. Harding, [1891] i Q. B. D. 560. 
 
 ff.' 3 It is true that the recent Married Women's Property Act 1893, is silent on this 
 point. It would no doubt be contended on behalf of the Crown that tlie_ general 
 terms of an earlier Act are not repealed by implication by the general provisions of a 
 later Act. 
 
 4 57 & 58 Vict.c. 38, sect. 34 (2). 
 
 6 DarUn v. Darldn, 22 L. T. 0. S. 278. ^ Dixon v. Dixon, 9 Ch. D. 592. 
 
 ' Phillips^. FMUips, 13 P. D. 220. ' 45 & 46 Vict. c. 75, s. 12, 
 
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CHAP. xv.J SEPARATE ESTA.TE. 401 
 
 to their property. This power to sue in respect of her separate Full re dres 
 property is not of novel origin, and was long recognized in the 
 courts of equity, and extended by the Married Women's Property 
 Act, 1870,' and still further enlarged by the later Act of 1882. 
 The words, " protection and security of her own separate pro- 
 perty," have been construed to mean that a married woman may 
 bring an action to secure her property from risk of loss, but not 
 against its being injured or diminished by some breach of obliga- 
 tion or wrongful act of third parties. Thus, a married woman 
 carrying on a separate business,* has been held entitled to sue 
 her bankers for a breach of contract for not presenting a bill of 
 exchange drawn by her on the bankers ; for not giving notice to 
 her of a bill of exchange intrusted to them ; and for dishonouring 
 a cheqiie drawn by her upon them, they having at the time suf- 
 ficient funds belonging to her to meet it.^ So, too, she is 
 enabled to sue in tort, as for a libel upon her trade or business,'' 
 under the provisions of sub-section 2 of section i of the Act of 
 1882. A married woman will doubtless be held entitled to have Entitled to 
 specific performance of the contracts entered into by her ; ^ and fo^anoe.^'^ 
 to injunctions restraining injury or prospective injury to her pro- 
 perty she is clearly entitled.^ 
 
 A married woman can sue both in contract and in tort con- Married 
 nected with her property, not only strangers, but hsr husband ; ^"elntort 
 but she cannot sue him for a personal tort ; neither can he sue ftraigers, and 
 
 . . husbana, 
 
 her for the like.' She cannot sue him after divorce for a where con- 
 personal tort (as, for instance, assault, or libel, or slander), com- property ; but 
 mitted against her during marriage.^ She can obtain an ^°^ ^eraona? 
 injunction restraining her husband from interfering with her tort. 
 separate business,' and even from entering her house, though 
 she resides there ; '" but if the house be the matrimonial domicil 
 it is doubtful whether she would be able to turn her husband 
 out of doors and keep him there ; at any rate, the courts would 
 not lend her much assistance in the matter." Where she is 
 
 ' Per Jessel, M.E., Howard y. Banh of England, L. E. ig Eq. 295. 
 
 2 Her right to sue in such a case does not now depend upon her carrying on a trade 
 apart from her husband ; but she has a general right of action to protect and secure all 
 her property. ' 8vm.mers v. The City Banh, L. E. 9 C. P. 580. 
 
 * Eamsden v. Brearley, L. E. 10 Q. B. 147. 
 
 5 See Fry, Sp. Perf. 686-690, and chap. xiv. p. 289. 
 
 6 Warne v. Boutledge, L. E. 18 Eq. 497. ' 45 & 46 Vict. c. 75, s. 12. 
 ^ Phillips V. Barnett, i Q. B. D. 440. 
 
 8 Green v. Green, 5 Ha. 400 n. ; Wood v. Wood, 19 W. E. 1049. 
 
 1° Symonds v. Hallett, 24 Ch. D. 346. 
 
 11 Ihid. See the renaarks of the Lord Justices of Appeal in Symonds v. JSalktt 
 OiM, sup.). The Court continued the injunction granted by Chitty, J., against the 
 husband entering his wife's house, solely on the ground that there waa a suit at her 
 instance for a dissolution of marriage by reason of his adulteiy and cruelty, which if 
 terminating in her favour would render the consideration of the mere proprietary 
 question unnecessary. 
 
 2C 
 
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402 HUSBAND AND WIFE. [pakt i. 
 
 living away from him in her own house, he cannot authorize any 
 person to enter the house without her consent.' 
 Power of the It seems more than doubtful whether the Court of Chancery 
 ceryto exclude can exercise a jurisdiction which is tantamount to an interruption 
 housetomiDg °^ *'^® matrimonial tie. It is on this ground that it is submitted 
 matrimonial with all deference that the Vice-Chancellor of England, in Green 
 longing' to V. Green,^ went too far in putting in force the jurisdiction of 
 wife; 2«<Bre. ^.^^ q^^^^_ rpj^^ question that the Court of Equity can decide is 
 concerned with the separate property of the married woman, and 
 its protection. But when the house, which is the matrimonial 
 domicil, happens to be the separate property of the wife, her 
 husband is no more a stranger to it than the wife is a stranger 
 in her husband's house ; and the common law right of the 
 husband to live and cohabit with his wife is paramount to any 
 mere proprietary right of the wife. The husband has no legal 
 right to turn his wife out of doors, save for adultery, nor has the 
 wife any equitable right to do so. It is not in the power, it is 
 confidently urged, of the Court of Chancery to bring about a state 
 of things which calls for redress in the Divorce Court ; that is, 
 one Court may aid and assist in a wrong which another Court has 
 to set right ; which is a reductio ad alsurdum. Where the house 
 is not the matrimonial domicil, questions of another character are 
 involved. But the above case goes to the full length pointed 
 out. 
 Criminal re- A married woman has also full criminal remedies against those 
 
 strangers. who bring themselves within the criminal law in dealing with 
 her property, whether by way of larceny or otherwise. A start- 
 ling innovation has been made in the law on this subject by the 
 Against Act of 1882 ;' a wife now is able to prosecute her husband, not 
 
 only for personal violence, but for wrongful dealings on his part 
 with her property, amounting to a felony or misdemeanour.'' 
 There is certainly a limitation to her capacity for instituting 
 criminal proceedings against her husband, namely, that they shall 
 not be taken against him while they are living together as hus- 
 
 1 Weldon v. De Batlie, 14 Q. B. D. 339. 
 
 ^ 5 Ha. 400 n. It may not be amiss to notice that this case was not regularly 
 reported at the time the decision was given ; and is only recorded by way of 
 a note. 
 
 ^ 45 & 46 Vict. 0. 75, s. 12. 
 
 * This may be a good logical result of making the wife a single woman in respect of 
 her property, but is scarcely good policy. The property in respect of which the wife 
 can institute these proceedings io "property claimed by her," and it is not impossible 
 to foresee that much mischief may be caused by allowing an angry and jealous 
 wife " to claim " property which the husband on leaving her takes away with hira, 
 and put him on his trial, which proves that the property in question is his own. 
 The spretce injuria formce will, under this section, often drive a wile, listening to evil 
 counsels, to gratify her revenge in the criminal courts, instead of seeking any redress 
 she might have in the civil or matrimonial tribunals. 
 
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CHAP. XV.] SEPARATE ESTATE. 403 
 
 band and wife, nor when living apart, in respect of any act done 
 by the husband while they were living together concerning the 
 property so claimed by her. The wrongful act must be done by , 
 the husband when leaving or deserting, or about to leave or 
 desert his wife,' and it is no offence for a husband to take 
 his wife's money while they are living together;^ and to impute 
 to him such conduct is not an actionable slander per se? 
 
 In any indictment, or other proceeding taken by the wife to 
 protect her property, it will be enough to allege such property to 
 be her property. 
 
 As a just and necessary set off to the liability of the husband, Liability of 
 it is now provided that " a wife doing any act with respect to ^oceedSgs." ' 
 any property of her husband^ which if done by the husband with 
 respect to property of the wife, would make the husband liable to 
 criminal proceedings by the wife under this Act, shall in like 
 manner be liable to criminal proceedings by her husband.'''' 
 As ancillary to these new powers and capacities given to Husband and 
 married persons, husband and wife are now rendered competent petenTwit- 
 and compellable witnesses against each other in these criminal nesses against 
 
 '■ '^ each other. 
 
 proceedings.' 
 
 Section 8. 
 Fin-Money and Faraphernalia. 
 
 Pin-Money. — The law on the subject of pin-money may well Pin-money. 
 be treated of under the heading of separate estate, for though not 
 separate estate in the full legal intendment of that phrase, yet it 
 partakes somewhat of its nature. Its importance has diminished 
 as that of separate estate has increased, and it is now nearly 
 altogether merged in the latter." 
 
 ^ What interpretation is to be put upon the word " desert ; '' that applied under 
 the poor-law statutes, or that under tke Matrimonial Acts, or the popular sense of the 
 word ? It is difficult to appreciate the meaning of the words " about to leave or desert," 
 for unless the husband has left, or is in the act of leaving the wife, after wrongfully 
 dealing with her property, they are living together, and she is debarred from instituting 
 criminal proceedings against him. The act of the husband in removing her separate 
 property out of the custody or possession of the wife may be tortious, but does not 
 become sufEciently criminal till the leaving or deserting has taken place. Surely the 
 leaving or deserting must be evidenced by some overt act on the part of the husband ; 
 it is not enough that suspicion lurks in the bosom of a jealous wife. Take as an 
 illustration of the contention — A husband, living with his wife, improperly sends 
 furniture (the wife's property) to a warehouse or another house, with the intention 
 (not openly expressed) of leaving his wife at a favourable opportunity, and using the 
 furniture himself. It is submitted, under these circumstances, the wife could not 
 maintain criminal proceedings against the husband, for they are living together, and 
 his mere intention to desert her could never be proved, even if evidence on that point 
 would be admissible in criminal proceedings. 
 
 ^ Lemon v. Simmons, 57 L. J. Q. B. 260. ^ Ibid. 
 
 * 45 & 46 Vict. c. 75, sect. 16 ; 47 & 48 Vict. c. 14, s. 1. 
 
 ^ Sect. 12; 47 & 48 Vict. c. 14, 8. I. 
 
 ^ In America it is of little practical importance. Bish. Laws of Married Women, 
 sect. 229. 
 
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404 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Description of 
 pin-money. 
 
 Distinction 
 between pin- 
 money and 
 separate 
 estate. 
 
 The following description and remarks show the shadowy 
 nature of th^ distinction between pin-money and separate estate. 
 " Pin-money is with respect to the personal expense of the wife, 
 for the dress and pocket-money of the wife ; its very name 
 implies a connection with the person ; it means that which goes 
 to deck the person of the wife ; and, as I should say, upon a 
 somewhat larger construction, to pay her ordinary expenses. It 
 is a fund which she may be made to spend during the coverture 
 by the intercession and advice, and at the instance of her hus- 
 band.'" " Tou cannot get from the books even a definition of 
 pin-money upon which you can rely ; you cannot trace the line 
 which divides it from the separate property of the wife with any 
 distinctness ; and as to authority, either as to decisions or dicta 
 of text -writers, or of judges, there is nothing that furnishes a 
 clear and steady light on the subject, many cases running from 
 pin-money into separate estate, and from separate estate into pin- 
 money, in such a way that when a text-writer quotes a case 
 {Brodie v. Barry, 2 Ves. & B. 36; 2 Eop. H. & W. 133) for 
 instance, in support of a doctrine touching pin-money, you look 
 at the book, and find it has nothing to do with pin-money, and 
 does not support the proposition for which it is cited." ^ 
 
 A rough distinction may be drawn between pin-money and 
 separate estate on the basis of the application and destination of 
 the property. Where the amount settled on the wife is specifically 
 described as pin-money, or from the words used can be taken to 
 be of the nature of pin-money, then it will be so held to be. 
 Pin-money may be taken to be that competency settled upon a 
 woman to be employed by her in the ornament and decoration of 
 her person, and general expenses incidental to the position of one 
 having considerable control over the family and household arrange- 
 ment ; and where the settled fund is pin-money, there seems to 
 be a duty on the wife to devote it to the objects for which it was 
 secured to her apart from her husband's control, which is other- 
 wise with separate estate which belongs to her absolutely, while 
 pin-money does not.^ Another distinction is observable in the 
 matter of arrears. Where it is pin-money, the wife cannot claim 
 for more than the arrears of one year, or a year and a fraction, 
 preceding the husband's death, and her representatives not at all, 
 though she may have been insane for many years, and it was 
 secured by an ante-nuptial settlement ; whereas if it be separate 
 estate, her right of recovery and that of her representatives 
 
 1 Per Lord Brougham, C, in Howard v. Digby, 2 CI. & F. 634, 677. 
 
 2 Ihid. 2 CI. & P. 670. ' Howard v. Digby (ubi su^p.). 
 
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CHAP. XV.] SEPARATE ESTATE. 405 
 
 is not so limited.^ So, too, a wife is unable to assign or effectu- 
 ally dispose of her pin-money, whereas over her separate property 
 she has a complete right of disposition, unless specifically re- 
 strained. 
 
 If the allowance given by the husband for pin-money, or Savings. 
 separate maintenance, has been so ample as to enable the wife to 
 accumulate savings out of it, these, with whatever she may have 
 purchased with them, will be at her own disposal by will or 
 otherwise.^ But to render her claim to the savings indefeasible, 
 the property so acquired by the wife must have been either 
 settled on her as her separate property, or the husband must 
 clearly have engaged to hold it as trustee for her separate 
 use.' 
 
 The principle upon which the wife's right to arrears is limited Arrears. 
 is, that it is a fund which the husband has agreed to provide for 
 a specific purpose, namely, the suitable support of his wife, and 
 if there are arrears of it, it is presumed that she has been 
 furnished from time to time by her husband with the necessary 
 means for providing those things which it was intended should 
 be provided by the pin-money, and so the husband might 
 be saddled with a double liability, for he would be liable 
 not only to pay her debts, but also to satisfy her claims against 
 him for pin-money ; accordingly, she is prevented from claim- 
 ing arrears for a longer period than a year, or a year and 
 a fraction of a year. If her husband has provided her with 
 dress, &c., she cannot recover at his death even a year's arrears.'' 
 This presumption is, however, negatived where she has lived with 
 him, and payment has been frequently demanded of him, and he 
 has promised to satisfy her demands ; ^ or she has been dwelling 
 apart from him, and without having any allowance made her." 
 Under these circumstances an account will be decreed as far back 
 as the arrears go. 
 
 ^ Howard v. Dighy {ubi sup.). Lord St. Leonards (in his Law of Property as 
 administered in the House of Lords, pp. i66 et seq.) doubts the correctness of this 
 decision. On this point he lays down the right principle to be that where the 
 husband, bound by the terms of his settlement to allow his wife's pin-money, does not 
 for some reason or other pay it to her, but spends it in the manner in which it would 
 have been spent by the wife if she had had control of the money, e.g., in paying her 
 personal and household expenses, in subscriptions to charities which she was in the 
 habit of supporting, and the like, all such legitimate payments ought to be set off 
 against any claim by the wife for an-ears. His lordship adds that the refusal of the 
 House of Lords to entertain the claim of the wife's representatives, at any rate for 
 the arrears of a year, was not supported by the principles of equity, or of the decided 
 cases, for what the wife could rightly claim her representative was empowered to 
 demand. 
 
 ^ /Sir Paul NeaVs Case, Prec. Ch. 45. 
 
 ^ M'Lean v. Longlands, 5 Ves. 79. 
 
 '' Fowler v. Fowler, 3 P. Wms. 355 ; see also Hoiijard v. Digiy (uU sup.). 
 
 ^ Aston V. Aston, i Ves. 267. ^ Eidout v. Lewis, I Atk. 269. 
 
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406 HUSBAND AND WIFE. [part i. 
 
 Paraphernalia. Paraphernalia. — The term " paraphernalia '■" {lona para- 
 phernalia) is derived from the Greek word 7fapa<pepva, and signifies 
 something reserved to the wife over and above her dotal portion, 
 to ^^Vd ■'"'' ^'^°^^*^®^ t^^ personal apparel and ornaments possessed and 
 
 used by her during coverture, and which are suitable to her rank 
 and condition in life.' The question of paraphernalia can only 
 arise on the death of the husband; and herein lies a marked 
 distinction between what is paraphernalia and what is separate 
 property. As to personal ornaments, the husband's possession of 
 them makes no difference, provided the wife wore them at 
 intervals ; it is enough if she used them from time to time, such as 
 birthdays,^ or on public occasions.^ Their value is immaterial, so 
 long as they_ are suitable to her rank and degree.* But the widow 
 cannot claim as paraphernalia articles which are in fact heir- 
 looms,* such as old family jewels of her husband's family which 
 she has been allowed to wear." 
 Wife entitled She is entitled to retain her paraphernalia for her own use, on 
 phemaliafor the principle that the death of her husband should not leave her 
 er own use. -witJiout the ordinary necessaries of life, or surroundings suitable 
 to her rank and condition. At law her husband may dispose of 
 his wife's paraphernalia, excepting her necessary apparel, and 
 with like exception they are liable to the claims of his creditors.' 
 The husband cannot " devise by his will such ornaments and 
 jewels of his wife,^ though during his life he hath the power 
 (if unkindly inclined to exert it) to sell them or give them away."' 
 Thus, they are not to be considered as belonging to the wife 
 during coverture for her separate use, for her right of property in 
 them does not vest in her till the death of her husband.'" The 
 Right of wife right of the wife to her paraphernalia is purely personal, and if 
 son^.^ ^ '^^^' she do not make the claim to them in her lifetime, no right 
 will vest in her executor or administrator," and her right may 
 be barred by a provision before marriage in lieu of it.'^ 
 Distinction There is a distinction upon this subject of paraphernalia 
 
 paraphernalia which is entitled to Consideration. Where the husband, either 
 estatT.^*™ ^ before or after marriage, gives to his wife articles of paraphernal 
 nature, they are not treated as absolute gifts to her, as her own 
 separate property ; for if they were, she might dispose of them 
 
 •^ 2 Bl. Com. 435. ^ Northey v. Northey, 2 Atk. 77. 
 
 ^ Graham v. Lord Londonderry, 3 Atk. 394. 
 
 * Northey v. Northey (ubi s^q}.). 
 
 ^ Calmady v. Oalmady, 11 Vin. Abr. pi. 21 ; Jervoise v. Jervoise, 17 
 Beav. 566. ^ Laing v. Walher, 64 L. T. 527. 
 
 '' Graham v. Lord Londonderry (uhi sup.). 
 
 8 Tippiny v. Tipping, 1 P. Wms. 729. ' 2 Bl. Com 436. 
 
 '" Eidout V. Earl of Plymouth, 2 Atk. 104. 
 " Claryes v. Duchess (^Albemarle, 2 Vern. 245. ^^ Bead v. Seuiell, 2 Atk. 642. 
 
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CHAP. XV.] SEPARATE ESTATE. 407 
 
 at any time, and he could not appropriate them to his own use. 
 But they are deemed as, technically, paraphernalia, to be worn 
 by the wife as ornaments of her person; and so to be deemed 
 gifts sub modo only.' But, if the like articles were bestowed 
 upon her by a father, or by a relative, or even by a stranger, 
 before or after marriage, they would be deemed absolute gifts to 
 her separate use ; and then if received with the consent of her 
 husband, he could not, nor could his creditors, dispose of them 
 any more than they could of any other property received and 
 held to her separate use." But if proof is forthcoming that the 
 husband made to his wife gifts of jewelry and other matters of 
 personal adornment to be her own separate property, he will not 
 be entitled to recall them.^ So, too, wedding presents given to a 
 woman in contemplation of marriage belong to her for her sepa- 
 rate use, and will not pass on the bankruptcy of her husband to 
 his trustee unless it is clear that such were intended to be given 
 to the husband so as to be liable for his debts." 
 
 The widow's paraphernalia are liable to satisfy the debts of 
 her deceased husband if his assets prove insufficient to meet 
 them,* even though they had been given to her before marriage.^ 
 If the husband had not disposed of the paraphernalia absolutely, 
 as he might do, but has merely given them in pledge, after his 
 debts have been provided for, she will be entitled to have his 
 assets applied to the redemption of the articles so pledged/ If 
 it has become necessary to resort to the paraphernalia to pay the When assets 
 husband's debts, the wife will be a creditor for their value, and marshalled in 
 his assets will be marshalled in her favour. « " The widow of af»^°™°*^"«- 
 deceased person is entitled to her paraphernalia without regard to 
 any bequest of them which her husband may have made, but 
 subject to the payment of his debts. If, therefore, any creditor 
 should have seized upon the wife's paraphernalia, equity, out of 
 regard for her claims, will so marshal the assets as to allow her 
 to be recouped out of ant/ part of her husband's property/ except, 
 perhaps, real estate which may have been specifically devised prior 
 
 ^ Oraham v. Lord Londonderry (ubisup.). 
 
 ^ Story, Eq. Jur. sect. 1377. Of course jewels and other 'personal ornaments 
 settled to the wife's separate use, and forming part of the separate estate, will be liable 
 to be taken in execution by her own creditors. Mercier v. Williams, 9 Q. B. D. 337 ; 
 10 App. Gas. I. See Grant v. Chant, 34 L. J. Ch. 641, and chap xiv., Contracts 
 by Married Women, sub-sect. 2, Gifts between Husband and Wife. 
 
 ' Bashall v. Bashall, Times Kep. 152. 
 
 ■* Re Jamieson, Ex parte Pannell v. Jamieson, 60 L. T. 152. 
 
 ' Boyntun v. Boyntun, i Cox, Eq. Cas. 106. 
 
 ^ SidoutY. Lord Plymouth [ubi sup.). 
 
 ^ Oraham v. Lord Londonderry (ubi sup.). ^ Aldrich v. Cooper, 8 Ves. 397. 
 
 ° Nbrthey v. Northey, (ubi sup!), as agaiust the heir taking by descent ; Snelson v. 
 Corbet, 3 Atk. 369, and devisees of land devised for payment of debts ; Boyntun v. 
 Boyntun {ubi sup.). 
 
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408 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Wife's claim 
 superior to 
 those of 
 volunteers. 
 
 to the statute 3 & 4 Wm. IV. c. 105 ;^ but since this statute, it 
 would seem that this exception would not be made, for the wife, 
 as to her paraphernalia, is in a position similar to that of a 
 simple contract creditor,^ and such a creditor may now claim to 
 be paid out of any part of the property of the deceased.^ The 
 wife's right to paraphernalia is superior to the claims of legatees, 
 which are merely voluntary.'' 
 
 Notwithstanding the change effected by the Married Women's 
 Property Act, 1882, in this branch of the law, if an express gift 
 is made by a husband to his wife of jewels and other personal 
 ornaments to be worn by her as his wife, such ornaments would 
 be deemed to be " paraphernalia " only, but, as before pointed out, 
 nowadays a gift from husband to wife will primd facie be deemed 
 a gift out and out to the wife's separate use, and none of the 
 attributes of " paraphernalia " would be held to attach to it.^ 
 
 1 Probert v. Clifford, Amb. 6. ^ Lord Townshend v. Windham, 2 Ves. Sen. 7. 
 ^ Williams, Real Property Assets, 118. 
 
 ^ See Tij/ping v. lipping, i P. Wms. 729, and Grahamy. Lord Londonderry, 
 3 Atk. 394. 
 
 ^ See SaekallY. Bctshall 11 Times Eep. 152. 
 
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APPENDIX. 
 
 MAERTED WOMEN'S PROPERTY ACT, 1882. 
 45 & 46 Vict. c. 73. 
 
 An Act to Consolidate and Amend the Acts relating to the Pro- 
 perty of Married Women. [i8th August, 1882.] 
 
 "Whereas it is expedient to consolidate and amend the Act of the thirty- 
 third and thirty-fourth Victoria, chapter ninety-three, intituled, " The 
 Married Women's Property Act, 1870,'' and the Act of the thirty- 
 seventh and thirty-eighth Victoria, chapter fifty, intituled, " An Act to 
 amend the Married Women's Property Act, 1 870 : " — 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with the 
 advice and consent of the Lords Spiritual and Temporal, and Commons, 
 in this present ParUament assembled, and by the authority of the same 
 as follows : — 
 
 I. (i) A married woman shall, in accordance with the provisions of Married 
 this Act, be capable of acquiring, holding, and disposing, by will or ^p^blVof*^ 
 otherwise, of any real or personal property as her separate property, holding pro- 
 in the same manner as if she were a fetne sole, without the intervention contraoHng as 
 of any trustee. a/eme soh. 
 
 (2) A married woman shall be capable of entering into and rendering 
 herself liable in respect of and to the extent of her separate property on 
 any contract, and of suing and being sued, either in contract or in 
 tort, or otherwise, in aU respects as if she were a feme sole, and her 
 husband need not be joined with her as plaintiff or defendant, or be 
 made a party to any action or other legal proceeding brought by or 
 taken against her ■ and any damages or costs recovered by her in any 
 such action or proceeding shall be her separate property ; and any 
 damages or costs recovered against her in any such action or proceeding 
 shall be payable out of her separate property, and not otherwise. 
 
 (3) Every contract entered into hy a married woman shall he deemed 
 to he a contract entered into by her with respect to and to hind her separate 
 property, unless the contrary he shown. [Repealed by Married Women's 
 Property Act, 1893, s. 4.J 
 
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to husband. 
 
 410 HUSBAND AND WIFE. [pabt i. 
 
 (4) Every contract entered into hy a married woman with respect to 
 and to hind her separate property shall hind not only the separate property 
 lohioh she is possessed of or entitled to at the date of the contract, hut also 
 all separate properly which she may thereafter acquire. [Repealed hy 
 Married Women's Property Act, 1893, s. 4]. 
 
 (5) Every married woman carrying on a trade separately from her 
 husband shall, in respect of her separate property, be subject to the 
 bankruptcy laws in the same way as if she were a, feme sole. 
 
 Property of a 2. Every woman who marries after the commencement of this Act 
 
 ried after the shall be entitled to have and to hold as her separate property and to 
 Act to be held dispose of in manner aforesaid all real and personal property which 
 feme sole. shall belong to her at the time of marriage, or shall be acquired by or 
 devolve upon her after marriage, including any wages, earnings, money, 
 and property gained or acquired by her in any employment, trade, or 
 occupation in which she is engaged, or which she carries on separately 
 from her husband, or by the exercise of any literary, artistic, or scientific 
 skill. 
 Loans by wife 3. Any money or other estate of the wife lent or intrusted by her 
 to her husband for the purpose of any trade or business carried on by 
 him, or otherwise, shall be treated as assets of her husband's estate in 
 case of his bankruptcy, under reservation of the wife's claim to a 
 dividend as a creditor for the amount or value of such money or other 
 estate after, but not before, all claims of the other creditors of the 
 husband for valuable consideration in money or money's worth have 
 been satisfied. 
 Execution of 4. The execution of a general power by will by a married woman 
 
 genera power, gj^g^j-^ y^^lyb the effect of making the property appointed liable for her 
 debts and other liabilities in the same manner as her separate estate is 
 made liable under this Act. 
 Property ac- 5. Every woman married before the commencement of this Act shall 
 
 ttL^'Ict^bv a ^® entitled to have and to hold and to dispose of in manner aforesaid as 
 woman mar- her separate property all real and personal property, her title to which, 
 Act to^be^held ''^'^6*^^'^ '^^^ts'l ^"^ contingent, and whether in possession, reversion, or 
 by her as a remainder, shall accrue after the commencement of this Act, including 
 any wages, earnings, money, and property so gained or acqmred by her 
 as aforesaid. 
 As to stock, 6. All deposits in any post office or other savings bank, or in any 
 
 &c., to which Q^jjgj, bank, all annuities granted by the Commissioners for the Reduc- 
 woman is tion of the National Debt or by any other person, and all sums forming 
 ®° ' ® ' part of the public stocks or funds, or of any other stocks or funds 
 
 transferable in the books of the Governor and Company of the Bank of 
 England, or of any other bank, which at the commencement of this 
 Act are standing in the sole name of a married woman, and all 
 shares, stock, debentures, debenture stock, or other interests of or in 
 any corporation, company, or public body, municipal, commercial, or 
 otherwise, or of or in any industrial, provident, friendly, benefit, 
 building or loan society, which at the commencement of this Act are 
 
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APPENDIX.] SEPARATE ESTATE. 411 
 
 standing in her name, shall be deemed, unless and until the contrary be 
 shown, to be the separate property of such married woman ; and the 
 fact that any such deposit, annuity, sum forming part of the public 
 stocks or funds, or of any other stocks or funds transferable in the 
 books of the Governor and Company of the Bank of England or of any 
 other bank, share, stock, debenture, debenture stock, or other interest 
 as aforesaid, is standing in the sole name of a married woman, shall be 
 sutHcient prima fade evidence that she is beneficially entitled thereto 
 for her separate use, so as to authorize and empower her to receive or 
 transfer the same, and to receive the dividends, interest, and profits 
 thereof, without the concurrence of her husband, and to indemnify the 
 Postmaster-General, the Commissioners for the Reduction of the National 
 Debt, the Governor and Company of the Bank of England, the Governor 
 and Company of the Bank of Ireland, and all directors, managers, and 
 trustees of every such bank, corporation, company, public body, or society 
 as aforesaid, in respect thereof. 
 
 7. All sums forming part of the public stocks or funds, or of any As to stock, 
 other stocks or funds transferable in the books of the Bank of England, transfen-ecl, 
 or of any other bank, and all such deposits and annuities respectively *"•> *° * 
 as are mentioned in the last preceding section, and all shares, stock, woman, 
 debentures, debenture stock, and other interests of or in any such 
 corporation, company, public body^ or society as aforesaid, which after 
 
 the commencement of this Act shall be allotted to or placed, registered, 
 or transferred in or into or made to stand in the sole name of any 
 married woman, shall be deemed, unless and until the contrary be 
 shown, to be her separate property, in respect of which so far as any 
 liability may be incident thereto her separate estate shall alone be 
 liable, whether the same shall be so expressed in the document whereby 
 her title to the same is created or certified, or in the books or register 
 wherein her title is entered or recorded, or not. 
 
 Provided always, that nothing in this Act shall require or authorize 
 any corporation or joint-stock company to admit any married woman to 
 be a holder of any shares or stock therein to which any liability may be 
 incident, contrary to the provisions of any Act of Parliament, charter, 
 bye-law, articles of association, or deed of settlement regulating such 
 corporation or company. 
 
 8. All the provisions hereinbefore contained as to deposits in any Investments in 
 
 post oifice or other savings bank, or in any other bank, annuities married 
 
 granted by the Commissioners for the Reduction of the National Debt women and 
 
 . . « , others. 
 
 or by any other person, sums forming part of the public stocks or funds, 
 
 or of any other stocks or funds transferable in the books of the Bank of 
 
 England or of any other bank, shares, stock, debentures, debenture 
 
 stock, or other interests of or in any such corporation, company, public 
 
 body, or society as aforesaid respectively, which at the commencement 
 
 of this Act shall be standing in the sole name of a married woman, or 
 
 which, after that time, shall be allotted to, or placed, registered, or 
 
 transferred to or into, or made to stand in, the sole name of a married 
 
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412 
 
 HUSBAND AND WIFE. 
 
 [part 
 
 As to stock, 
 &c., standirg 
 in the joint 
 names of a 
 married 
 woman and 
 others. 
 
 fraudulent 
 investments 
 with money 
 of husband. 
 
 woman, shall respectively extend and apply, so far as relates to the 
 estate, right, title, or interest of the married woman, to any of the 
 particulars aforesaid which, at the commencement of this Act, or at 
 any time afterwards, shall be standing in, or shall be allotted to, placed, 
 registered, or transferred to or into, or made to stand in, the name of 
 any married woman jointly with any persons or person other than her 
 husband. 
 
 9. It shall not be necessary for the husband of any married woman, 
 in respect of her interest, to join in the transfer of any such annuity or 
 deposit as aforesaid, or any sum forming part of the public stocks or 
 funds, or of any other stocks or funds transferable as aforesaid, or any 
 share, stock, debenture, debenture stock, or other benefit, right, claim, 
 or other interest of or in any such corporation, company, public body, 
 or society as aforesaid, which is now or shall at any time hereafter be 
 standing in the sole name of any married woman, or in the joint names 
 of such married woman and any other person or persons not being her 
 husband. 
 
 10. If any investment in any such deposit or annuity as aforesaid, 
 or in any of the public stocks or funds, or in any other stocks or funds 
 transferable as aforesaid, or in any share, stock, debenture, or deben- 
 ture stock of any corporation, company, or public body, municipal, 
 commercial, or otherwise, or in any share, debenture, benefit, right, or 
 claim whatsoever in, to, or upon the funds of any industrial, provident 
 friendly, benefit, building, or loan society, shall have been made by a 
 married woman by means of moneys of her husband, without his con- 
 sent, the Court may, upon an application under section seventeen of 
 this Act, order such investment, and the dividends thereof, or any part 
 thereof, to be transferred and paid respectively to the husband ; and 
 nothing in this Act contained shall give validity as against creditors of 
 the husband to any gift, by a husband to his wife, of any property, 
 which, after such gift, shall continue to be in the order and disposition 
 or reputed ownership of the husband, or to any deposit or other invest- 
 ment of moneys of the husband made by or in the name of his wife in 
 fraud of his creditors ; but any moneys so deposited or invested may 
 be followed as if this Act had not passed. 
 
 Moneys 11. A married woman may by virttie of the power of making con- 
 
 noUoy 0"'' '^'^ tracts hereinbefore contained efiect a policy upon her own life or the 
 assm-ance not jif g of her husband for her separate use ; and the same and all benefit 
 estate™f^the ° thereof shall enure accordingly. 
 
 A policy of assurance effected by any man on his own life, and ex- 
 pressed to be for the benefit of his wife, or of his children, or of his 
 wife and children, or any of them, or by any woman on her own life, 
 and expressed to be for the benefit of her husband, or of her children, 
 or of her husband and children, or any of them, shall create a trust in 
 favour of the objects therein named, and the moneys payable under 
 any such policy shall not, so long as any object of the trust remains 
 unperformed, form part of the estate of the insured, or be subject to 
 
 insured. 
 
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APPENDIX.] SEPARATE ESTATE. 413 
 
 his or her debts : Provided, that if it shall be proved that the policy 
 was eflfected and the premiums paid with intent to defraud the creditors 
 of the insured, they shall be entitled to receive, out of the moneys 
 payable under the policy, a sum equal to the premiums so paid. The 
 insured may by the policy, or by any memorandum under his or her 
 hand, appoint a trustee or trustees of the moneys payable under the 
 policy, and from time to time appoint a new trustee or new trustees 
 thereof, and may make provision for the appointment of a new trustee 
 or new trustees thereof, and for the investment of the moneys payable 
 under any such policy. In default of any such appointment of a 
 trustee, such policy immediately on its being effected, shall vest in 
 the insured and his or her legal personal representatives, in trust for 
 the purposes aforesaid. If, at the time of the death of the insured, or 
 at any time afterwards, there shall be no trustee, or it shall be expe- 
 dient to appoint a new trustee or new trustees, a trustee or trustees or 
 a new trustee or new trustees may be appointed by any Court having 
 jurisdiction under the provisions of the Trustee Act, 1850, or the Acts 13 & 14 Vict. 
 amending and extending the same. The receipt of a trustee or trustees "' °' 
 duly appointed, or, in default of any such appointment, or in default of 
 notice to the insurance office, the receipt of the legal personal repre- 
 sentative of the insured, shall be a discharge to the office for the sum 
 secured by the policy, or for the value thereof, in whole or in part. 
 
 12. Every woman, whether married before or after this Act, shall Eemedies of 
 have in her own name, against all persons whomsoever, including her ™oman for 
 husband, the same civil remedies, and also (subject, as regards her protection and 
 -husband, to the proviso hereinafter contained) the same remedies and eeparate" 
 redress by way of criminal proceedings, for the protection and security propei'ty^ 
 of her own separate property, as if such property belonged to her as a 
 feme sole, but except as aforesaid, no husband or wife shall be entitled 
 to sue the other for a tort. In any indictment or other proceeding 
 under this section it shall be sufficient to allege such property to be her 
 property ; and in any proceeding under this section a husband or wife 
 shall be competent to give evidence against each other, any statute or 
 rule of law to the contrary notwithstanding : Provided always, that no 
 criminal proceeding shall be taken by any wife against her husband by 
 virtue of this Act while they are living together, as to or concerning 
 any property claimed by her, nor while they are living apart, as to or 
 concerning any act done by the husband while they were living together, 
 concerning property claimed by the wife, unless such property shall 
 have been wrongfully taken by the husband when leaving or deserting, 
 or about to leave or desert, his wife. 
 
 13. A woman after her marriage shall continue to be liable in re- Wife's ante- 
 spect and to the extent of her separate property for all debts contracted, and ijabilitie^s. 
 and all contracts entered into or wrongs committed by her before her 
 marriage, including any sums for which she may be liable as a contribu- 
 tory, either before or after she has been placed on the list of contribu- 
 tories, under and by virtue of the Acts relating to joint-stock companies ; 
 
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414 HUSBAND AND WIFE. [part i. 
 
 and she may be sued for any such debt and for any liability in damages 
 or otherwise under any such contract, or in respect of any such wrong ; 
 and all sums recovered against her in respect thereof, or for any costs 
 relating thereto, shall be payable out of her separate property ; and as 
 between her and her husband, unless there be any contract between 
 them to the contrary, her separate property shall be deemed to be 
 primarily liable for all such debts, contracts, or wrongs, and for all 
 damages or costs recovered in respect thereof : Provided always, that 
 nothing in this Act shall operate to increase or diminish the liability of 
 any woman married before the commencement of this Act for any such 
 debt, contract, or wrong, as aforesaid, except as to any separate pro- 
 perty to which she may become entitled by virtue of this Act, and to 
 which she would not have been entitled for her separate use under the 
 Acts hereby repealed or otherwise, if this Act had not passed. 
 Hustandto 14. A husband shall be liable for the debts of his wife contracted, 
 
 his wife's debts ^'I'd f*^!" ^11 contracts entered into and wrongs committed by her, before 
 contracted marriage, including any liabilities to which she may be so subject under 
 riage to a the Acts relating to joint-stock companies as aforesaid, to the extent of 
 
 certain extent. ^-^^ property whatsoever belonging to his wife which he shall have ac- 
 quired or become entitled to from or through his wife, after deducting 
 therefrom any payments made by him, and any sums for which judg- 
 ment may have been bond fide recovered against him in any proceeding 
 at law, in respect of any such debts, contracts, or wrongs for or in 
 respect of which his wife was liable before her marriage as aforesaid ; 
 but he shall not be liable- for the same any further or otherwise; and 
 any Court in which a husband shall be sued for any such debt shall 
 have power to direct any inquiry or proceedings which it may think 
 proper for the purpose of ascertaining the nature, amount, or value of 
 such property : Provided always, that nothing in this Act contained 
 shall operate to increase or diminish the liability of any husband mar- 
 ried before the commencement of this Act for or in respect of any such 
 debt or other liability of his wife as aforesaid. 
 Suits for ante- IS- A husband and wife may be jointly sued in respect of any such 
 ""P^??:! debt or other liability (whether by contract or for any wrong) con- 
 
 tracted or incurred by the wife before marriage as aforesaid, if the 
 plaintiff in the action shall seek to establish his claim, either wholly or 
 in part, against both of them ; and if in any such action, or in any 
 action brought in respect of any such debt or liability against the hus- 
 band alone, it is not found that the husband is liable in respect of any 
 property of the wife so acquired by him or to which he shall have 
 become so entitled as aforesaid, he shall have judgment for his costs of 
 defence, whatever may be the result of the action against the wife if 
 jointly sued with him ; and in any such action against husband and 
 wife jointly, if it appears that the husband is liable for the debt or 
 damages recovered, or any part thereof, the judgment to the extent of 
 the amount for which the husband is liable shall be a joint judgment 
 against the husband personally and against the wife as to her separate 
 
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APPENDIX.] SEPARATE ESTATE, 415 
 
 property ; and as to the residue, if any, of such debt and damages, the 
 judgment shall be a separate judgment against the wife as to her 
 separate property only. 
 
 1 6. A wife doing any act with respect to any property of her hus- Act of wife 
 band, which, if done by the husband with respect to property of the criminal 
 wife, would make the husband liable to criminal proceedings by the proceedings. 
 wife under this Act, shall in like manner be liable to criminal pro- 
 ceedings by her husband. 
 
 1 7 . In any question between husband and wife as to the title to or Question 
 possession of property, either party, or any such bank, corporation, jj^gband and 
 company, public body, or society as aforesaid in whose books any stocks, wife aa to 
 funds, or shares of either party are standing, may apply by summons ^\ decided in 
 or otherwise in a summary way to any judge of the High Court of * eummary 
 Justice in England or in Ireland, according as such property is in 
 England or Ireland, or (at the option of the applicant, irrespectively 
 
 of the value of the property in dispute), in England to the judge of 
 the County Court of the district, or in Ireland, to the chairman of the 
 Civil Bill Court of the division in which either party resides, and the 
 judge of the High Court of Justice or of the County Court, or the 
 the chairman of the Civil Bill Court (as the case may be), may make 
 such order with respect to the property in dispute, and as to the costs 
 of and consequent on the application as he thinks fit, or may direct 
 such application to stand over from time to time, and any inquiry 
 touching the matters in question to be made in such manner as he 
 shall think fit : Provided always, that any order of a judge of the 
 High Court of Justice to be made under the provisions of this section 
 shall be subject to appeal in the same way as an order made by the 
 same judge in a suit pending or on an eqititable plaint in the said 
 Court would be ; and any order of a County or Civil Bill Court under the 
 provisions of this section shall be subject to appeal in the same way as 
 any other order made by the same Court would be, and all proceedings 
 in a County Court or Civil Bill Court under this section in which, by 
 reason of the value of the property in dispute, such Court would not 
 have had jurisdiction if this Act or the Mari-ied Women's Property 
 Act, 1870, had not passed, may, at the option of the defendant or 
 respondent to such proceedings, be removed as of right into the High 
 Court of Justice in England or Ireland (as the case may be), by writ of 
 certiorari or otherwise, as may be prescribed by any rule of such High 
 Court ; but any order made or act done in the course of such proceed- 
 ings prior to such removal shall be valid, unless order shall be made to 
 the contrary by such High Court : Provided also, that the judge of the 
 High Court of Justice or of the County Court, or the chairman of the 
 Civil Bill Court, if either party so require, may hear any such application 
 in his private room : Provided also, that any such bank, corporation, 
 company, public body, or society as aforesaid, shall, in the matter of any 
 such application for the purposes of costs or otherwise, be treated as a 
 stakeholder only. 
 
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416 
 
 HUSBAJSTD AND WIFE. 
 
 [PAET I. 
 
 ments. 
 
 Married 1 8. A married woman who is an executrix or administratrix alone 
 
 executa-ix^OT° °^ W^^^J ^it^ ^^J other person or persons of the estate of any deceased 
 trustee. person, or a trustee alone or jointly as aforesaid of property subject to 
 
 any trust, may sue or be sued, and may transfer or join in transferring 
 any such annuity or deposit as aforesaid, or any sum forming part of 
 the public stocks or funds, or of any other stocks or funds transferable 
 as aforesaid, or any share, stock, debenture, debenture stock, or other 
 benefit, right, claim, or other interest of or in any such corporation, 
 company, public body, or society in that character, without her husband, 
 as if she were a feme sole. 
 Saving of 19. Nothing in this Act contained shall interfere with or ajffect any 
 
 ment8°fnd^ the" ^^^t'ement or agreement for a settlement made or to be made, whether 
 power to make before or after marriage, respecting the property of any married woman, 
 u ure se e- ^^ shall interfere with or render inoperative any restriction against 
 anticipation at present attached or to be hereafter attached to the 
 enjoyment of any property or income by a woman under any settlement, 
 agreement for a settlement, will, or other instrument ; but no restriction 
 against anticipation contained in any settlement or agreement for a 
 settlement of a woman's own property to be made or entered into by 
 herself shall have any validity against debts contracted by her before 
 marriage, and no settlement or agreement for a settlement shall have 
 any greater force or validity against creditors of such woman than a like 
 settlement or agreement for a settlement made or entered into by a man 
 would have against his creditors. 
 
 20. Where in England the husband of any woman having separate 
 property becomes chargeable to any union or parish, the justices having 
 jurisdiction in such union or parish may, in petty sessions assembled, 
 upon application of the guardians of the poor, issue a summons against 
 the wife, and make and enforce such order against her for the mainten- 
 ance of her husband out of such separate property as by the thirty-third 
 section of the Poor Law Amendment Act, 1868, they may now make 
 and enforce against a husband ior the maintenance of his wife if she 
 becomes chargeable to any union or parish. Where in Ireland relief 
 is given under the provisions of the Acts relating to the relief of the 
 destitute poor to the husband of any woman having separate property, 
 the cost price of such relief is hereby declared to be a loan from the 
 guardians of the union in which the same shall be given, and shall be 
 recoverable frora such woman as if she were a feme sole, by the same 
 actions and proceedings as money lent. 
 
 21. A married woman having separate property shall be subject to 
 all such liability for the maintenance of her children and grandchildren 
 as the husband is now by law subject to for the maintenance of her 
 children and grandchildren : Provided always, that nothing in this 
 Act shall relieve her husband from any liability imposed upon him by 
 law to maintain her children or grandchildren. 
 
 22. The Married Women's Property Act, 1870, and the Married 
 Women's Property Act, 1870, Amendment Act, 1874, are hereby re- 
 
 Married 
 woman to be 
 liable to the 
 parish for 
 the main- 
 tenance of 
 her husband. 
 
 31 & 32 Vict. 
 0. 122. 
 
 Married 
 woman to be 
 liable to the 
 parish for the 
 maintenance 
 of her 
 children. 
 
 Eepeal of 33 
 & 34 Vict, 
 c. 93. 
 
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APPENDIX.] SEPARATE ESTATE. 417 
 
 pealed : Provided that such repeal shall not affect any act done or 37 * 38 Viot. 
 right acquired while either of such Acts was in force, or any right or 
 liability of any husband or wife, married before the commencement of 
 this Act, to sue or be sued under the provisions of the said repealed 
 Acts or either of them, for or in respect of any debt, contract, wrong, 
 or other matter or thing whatsoever, for or in respect of which any 
 such right or liability shall have accrued to or against such husband or 
 wife before the commencement of this Act. 
 
 23. Eor the purposes of this Act the legal personal representative of Legal 
 any married woman shall in respect of her separate estate have the of^^^n^ed 
 same rights and liabilities and be subject to the same jurisdiction as woman, 
 she would be if she were living. 
 
 24. The word "contract" in this Act shall include the acceptance of Interpretation 
 
 of fiGrnis 
 
 any trust, or of the office of executrix or administratrix, and the pro- 
 visions of this Act as to liabilities of married women shall extend to all 
 liabilities by reason of any breach of trust or devastavit committed by 
 any married woman being a trustee or executrix or administratrix 
 either before or after her marriage, and her husband shall not be sub- 
 ject to such liabilities unless he has acted or intermeddled in the trust 
 or administration. The word " property " in this Act includes a thing 
 in action. 
 
 25. The date of the commencement of this Act shall be the first of Oommenoe- 
 January one thousand eight hundred and eighty-three. 
 
 26. This Act shall not extend to Scotland. Extent of Act. 
 
 27. This Act may be cited as the Married Women's Property Act, Short title. 
 1882. 
 
 MARRIED WOMEN'S PROPERTY ACT, 1893. 
 56 & 57 Vict. c. 63. 
 
 An Act to Amend the Married Women's Property Act, 1882. 
 
 [5th December, 1893.] 
 
 Be it enacted by the Queen's most Excellent Majesty, by and with the 
 
 advice and consent of the Lords Spiritual and Temporal, and Commons, 
 
 in this present Parliament assembled, and by the authority of the 
 
 same, as follows : 
 
 I. Everv contract hereafter entered into by a married woman, other- Effect of 
 
 ■' "^ contract by 
 
 Wise than as agent, married 
 
 (a) shall be deemed to be a contract entered into by her with woman. 
 
 respect to and to bind her separate property, whether she 
 is or is not in fact possessed of or entitled to any separate 
 property at the time when she enters into such contract ; 
 
 (b) shall bind all separate property which she may at that time or 
 
 thereafter be possessed of or entitled to ; and 
 
 2 D 
 
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418 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Codts may be 
 ordered to be 
 paid out of 
 property 
 subject to 
 restraint on 
 anticipatioD. 
 
 ■Will of 
 maiTied 
 
 liepeal. 
 Short title. 
 Extent. 
 
 (o) shall also be enforceable by process of law against all property 
 wKich she laay thereafter, while discovert, be possessed of or 
 entitled to ; 
 Provided that nothing in this section contained shall render avail- 
 able to satisfy any liability or obligation arising out of such con- 
 tract any separate property which at that time or thereafter she is 
 restrained from anticipating. 
 
 2. In any action or proceedings now or hereafter instituted by a 
 woman or by a nezt friend en her behalf, the Court before which such 
 action or proceeding is pending shall have jurisdiction by judgment or 
 order from time to time to order payment of the costs of the opposite 
 party out of property which is subject to a restraint on anticipation, 
 and may enforce such payment by the appointment of a receiver and 
 the sale of the property or otherwise as may be just. 
 
 3. Section 24 of the Wills Act, 1837, shall apply to the will of a 
 married woman made during coverture, whether she is or is not pos- 
 sessed of or entitled to any separate property at the time of making 
 it, and such will shall not require to be re-executed or republished after 
 the death of her husband. 
 
 4. Sub-sections 3 and 4 of section i of the Married "Women's 
 Property Act, 1882, are hereby repealed. 
 
 5. This Act may be cited as the Married Women's Property Act, 
 1893. 
 
 6. This Act shall not apply to Scotland. 
 
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CHAPTER XVI. 
 
 ACTIONS BY AND AGAINST HUSBAND AND WIFE. 
 
 PAGK 
 
 Joint Actions by Husband and Wife 419 
 
 When may be Brought 420 
 
 When Joint Claims added to Separate Claims . 420 
 
 When Husband Liable for Costs . . . . 421 
 
 Effect of Death of Husband ob Wipe ... 421 
 
 Actions by Husband Alone 422 
 
 Actions by Wipe Alone 422 
 
 Under M. W. P. Act, 1S70 423 
 
 Under M. W. P. Act, 1882 423 
 
 No Need to give Security fob Costs . . . 424 
 Liability for Costs : 
 
 Under M. W. P. Act, 1882 426 
 
 Under M. W. P. Act, 1893 426 
 
 Joint Actions Against Husband and Wipe . . . 427 
 
 Action Against Husband alone on Wipe's Contract . 428 
 
 Action Against Wipe Alone 429 
 
 What Property Liable to Satisfy Judgment : 
 
 Under M. W. P. Acts, 1870, 1882, & 1893 . 430 
 Execution Limited to Free Separate 
 
 Property 431 
 
 Forms of Judgment under M. W. P. Acts, 
 
 1870 & 1882 431 
 
 How Judgment Enforced 432 
 
 The following chapter is intended to set forth shortly the practice 
 and procedure in actions brought by and against husband and 
 wife, showing where they must sue and be sued jointly or solely. 
 It will be divided into two sections, dealing with actions by 
 husband and wife, and actions against husband and wife. 
 
 Section i . 
 
 Actions ly Susband and Wife. 
 
 a. Joint Actions ly Husband and Wife. — Joint actions were Actions by 
 formerly brought in two cases — (i) in suits in which the ^"fg^"''"^ *'"' 
 husband was necessarily joined as a party, or where the wife Joint aotione. 
 might be joined, as being what was styled " the meritorious cause 
 of action," or where the cause of action would have survived to 
 
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420 HUSBAND AND WIFE. [part i. 
 
 Cases in which her/ as in the case of contracts made by her before her marriage,^ 
 
 wife were ne- Or where the action was brought for the recovery of her real 
 
 cessariiyjoined estate, Or in any case involving: her title to it.' (2) In suits in 
 as parties. ' . ■' . ° ... 
 
 which the wife claimed as executrix or administratrix or trustee, 
 
 or in an action to enforce a claim for a tort committed against 
 
 Under M. w. her person or reputation/ either before or during marriage. An 
 
 hiisband'^nee'd alteration in the law in this respect has been brought about by 
 
 not be joined tjjQ Married Women's Property Act, 1882, for now the husband 
 
 for mere _ _ r j i i 
 
 conformity, need never be joined for mere conformity,'* and the wife can sue 
 alone in her representative capacity.^ An action is no longer 
 abated by reason of the marriage of a woman pendente lite, but if 
 the cause of action survive, it shall survive to her solely, or to her 
 and those jointly interested with her in the subject-matter of it.'' 
 When joint Of Course, joint actions may be brought by husband and wife 
 
 brought™'^^ ^ where they are both jointly interested in the matter in dispute. 
 The husband's interest in the wife's cause of action does not now 
 arise from any marital right he may possess over it, but from a 
 bargain made with her, whether before or after marriage, which 
 gives him an interest in it, as where he has become a purchaser 
 by the settlement of his wife's choses in action, or where they 
 have entered jointly into a contract which affects his estate as 
 well as her separate property. Where he establishes such joint 
 interest, he will be entitled to bring his action jointly with his 
 wife. So, if in the opinion of the Court or a judge, the addition 
 of the husband is necessary for the complete adjustment of all 
 questions involved in the action, or in the event of the death of 
 the wife and the cause of action surviving, he can be added ; ^ 
 and this, no doubt, will still be the practice. Claims by husband 
 Joint claims and wife may now be joined with claims by either of them sepa- 
 toTeparate'^ rately.' In the Common Law Courts before the Judicature Act 
 claims. ^jjjg could not be done, except to the limited extent authorized 
 
 by the Common Law Procedure Act, 1852,'° by which in an 
 action brought by a man and his wife for an injury done to his 
 wife, where she was necessarily joined as co-plaintiff, the husband 
 might add claims in his own right. Even before the Judicature 
 Act these claims were not confined to claims arising consequen- 
 tially from the injuries done to the wife." Thus, in an action for 
 slander of the wife, her husband, when joined as a party to the 
 
 ^ Fosdike v. Sterling, i Freem. 236. 
 
 2 Philliskirlc v. Ptuckwell, 2 M. & S. 393. = i Selw. N. P. 243. 
 
 * Dicey, Part. 174. See Weldon v. Winslow, 13 Q. B. D. 784 ; Dengate v. Gardiner, 
 4 M. & W. 5 ; Longmeid v. Holliday, 6 Exch. 761. See ante, p. 173. 
 
 ^ Sect. I, sub-sect. 2. ^ Sect. 18. 
 
 ' E. S. C. 1883, Ord. XVII. rr. i. 4; Darcy v. Wkittaker, 24 W. R. 244. 
 
 8 Ihid. Ord. xvii. r. 2. » R. S. 0. 1883, Ord. xviii. ,. 4. 
 
 i» 15 & 16 Vict. 0. 76, s. 40. 
 ^1 iSRfi Hemstead v. The Phoenix Oaslight and Coke Co., 34 L. J. Ex. 108. 
 
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CHAP, svi.] ACTIONS BY AND AGxilNST. 421 
 
 suit, might have added in their joint claim a special claim for 
 
 any special damage that might have accrued to him through the 
 
 tort done to his wife ; as, for instance, in a case where his wife 
 
 had been personally assaulted; and he had been deprived of her 
 
 society and comfort ; and this equally applied where the wife's 
 
 state of health had been affected by a libel. But now this 
 
 right of the husband to join in actions which are his wife's is 
 
 applicable only to post-nuptial and not ante-nuptial torts done 
 
 to her ; for he has no need now to be joined as plaintiff for mere 
 
 form's sake in tort any more than in contract.' If husband or 
 
 wife is required to be a party to the action by the other, he or 
 
 she can be added.^ Under the present practice, if a husband if husband 
 
 needlessly join himself as a plaintiff, he will not recover his "^j^ umeeif 
 
 personal costs in the action in which his wife might be success- f!®y ' 'i ^^ ^g 
 
 ful, and if he put the defendant to unnecessary cost in respect of 
 
 his misjoinder, he personally, or his wife's separate estate, will be 
 
 liable for the costs so incurred. 
 
 The effect of the death of the husband in cases where both he Effect of death 
 and his wife were necessary co-plaintiffs, would be that the action „pon joint 
 would surnve to the wife, unless any circumstance had deprived ^<=''°'^- 
 her in the meanwhile of the right to carry it on. The effect of Effect of death 
 the death of the wife in cases where the husband's interests were 
 not affected by her death, or where by some act he had become 
 absolutely entitled to the subject-matter of the action, the right 
 to carry it on would survive to him. If, on the contrary, his 
 interest terminated, the action would survive to her legal per- 
 sonal representative.^ Where the husband and wife sue jointly, Set-off. 
 the defendant will be entitled to set off any claims that he may 
 have against either of them separately ; because they now sue on 
 a common cause of action ; and the rights of all the parties can 
 be adjusted in one and the same action. In such joint action the 
 wife is treated as a separate person from her husband. Conse- 
 quently a joint affidavit as to documents in their joint custody is 
 insufficient, and each must make an affidavit as to such in the 
 individual custody or possession of each of them.^ 
 
 Since it has been held that women married before the Act of 
 1882 came into force can sue alone in respect of causes of 
 action (whether in contract or in tort), which arose previously to 
 the coming in force of the Act, it would be of no practical 
 utUity to proceed further with the earlier law on the subject of 
 joint actions by husband and wife. 
 
 ^ 45 & 46 Vict. c. 75, sect, i, sub-s. 2. 56 & 57 Vict. u. 63, a. I. See ante, chap. 
 xiv. Contracts by Married Women. " E. S. C. 1883, Ord. xvi. r. 11. 
 
 3 45 & 46 Vict. c. 75, sect. 23. * Fendall v. O'Connell, 29 Ch. U. 889. 
 
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422 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Actions by 
 husband alone, 
 
 In what oases 
 in respect of 
 hia "Wife. 
 
 Wife's con- 
 tract as agent. 
 
 Husband's 
 right to sue 
 alone for tort 
 due to wife ; 
 claim for 
 damages by 
 way of 
 compensation, 
 
 Actions by 
 wife alone. 
 
 h. ActioTis by Husband alone. — The fact of marriage never 
 placed the husband under any disability in respect of his capacity 
 to bring actions ; and hia right of action never abated by reason 
 of his .marriage. A husband might formerly have sued alone (or 
 jointly with his wife) in three cases : (i) on negotiable instru- 
 ments given to his wife before marriage ; (ii) on contracts made 
 after marriage with his wife alone ; (iii) on contracts made after 
 marriage with himself and his wife.' Now, since the passing of 
 the Married Women's Property Act, 1882, he cannot sue at all 
 in the first case, unless he has by a marriage settlement purchased 
 an interest in them, and in actions brought to recover them, his 
 wife must be joined as a plaintiff. As regards the second case, 
 a married woman, under the Married Women's Property Act, 
 1882, except with reference to her separate property, has not 
 the capacity to make a contract except as agent, whether on 
 behalf of her husband, or some third person, therefore such prin- 
 cipal must sue on her contract in his own name ; thus, if the 
 wife lend money which is not her own, during the coverture, the 
 husband alone must sue for it.^ If it is a contract which concerns 
 only her separate estate, it is otherwise, and the husband has no 
 interest in it. As regards the third case, where the husband and 
 wife enter into a contract which in no way concerns her separate 
 property, or is one into which she cannot validly enter, as 
 where she is restrained from anticipating, it would seem that the 
 husband must sue alone. If the wife be improperly joined, the 
 action shall not be defeated, and the Court at any stage of the 
 proceedings may make an order striking out her name.^ 
 
 There does not seem to be anything in the Married Women's 
 Property Act, 1882, which would prevent a husband from suing 
 alone in respect of a tort done to his wife, if he framed his action 
 as one for damages as compensation for the loss sustained by 
 him in being deprived of the society, comfort, and assistance of 
 his wife.* It would probably be held that the husband might 
 sustain such sole action if the defendant were not likely to be 
 injured by another action to be tried separately at the instance 
 of the wife. But his right to sue for the tort as a tort done 
 to his wife is now by implication taken away from him.^ 
 
 c. Actions by Wife alone. — Until recent changes in the law, a 
 married woman could not alone, and without joining her husband, 
 bring an action at law, except under certain circumstances, of 
 which the following are examples : — (i) Where her husband was 
 
 1 Dicey. Part. i8l. 
 
 "11.8.0. 1883, Old. XVI. r. II. 
 
 ^ Sect. I, sub-sect 2. 
 
 ^ King v. Bassingham, 8 Mod. 199. 
 * See Hyde v. Scissor, Cro. Jao. 538. 
 
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CHAP. XVI.] ACTIONS BY AND AGAINST. 423 
 
 civilitcr mortuus; (ii) where he was an alien and had left the 
 kingdom, or had never been in this country ; (iii) where she had 
 been judicially separated, or had obtained a protection order,' 
 in which case she might sue as well in tort as in contract.'-^ 
 Even where she was the meritorious cause of action, her husband 
 had to be joined, if only for form's sake. In equity she could in equity. 
 bring a suit alone when possessed of separate property, and the 
 burden of proving that she was possessed of it lay upon her. In 
 such an action she had to sue by her next friend^ and make her 
 husband a defendant.^ 
 
 Her capacity for suing was extended by the Married Women's Capacity for 
 Property Act, i 870, to property which was declared by the Act to extended by 
 be her separate property, and to property belonging to her before ^- Y' ^' ■*■"*' 
 marriage, which her husband had, by writing under his hand, 
 agreed with her should belong to her as her separate property.'' 
 But where she sued in respect of her other separate estate, 
 she must have sued by her next friend, making her husband a 
 defendant.* Where the married woman is an infant (and only infant married 
 because she is an infant) she will still require a next friend to be ^mtue"by 
 joined with her in bringing actions, and the next friend and "'^"^ fnend. 
 herself will be subject to the rules and regulations affecting 
 infant plaintiffs and their next friends. ° Under the Judicature Practice under 
 Act married women might by leave of the Court or a judge Act. 
 sue without their husbands, and without a next friend, if they 
 gave security for costs to the satisfaction of the Court or judge,' 
 In all other cases they were obliged to sue as co-plaintiffs with 
 their husbands or next friends. 
 
 Since the coming into force of the Married Women's Property M. "W. P. Act, 
 Act, 1882, there has been a complete change in this branch of ' 
 the law ; for it is now provided that " a married woman shall be 
 capable of suing .... either in contract or tort, or otherwise in 
 all respects as if she were a feme sole, and her husband need not 
 be joined with her as plaintiff .... or be made a party to 
 any action or other legal proceeding brought by ... . her ; 
 and any damages or costs recovered by her in any such action 
 or proceeding shall be her separate property." ' Further, " a 
 married woman who is an executrix or administratrix alone or 
 
 1 20 & 21 Vict. 0. 85. ss. 21, 25, 26 ; 21 & 22 Vict. c. 108, ss. 6-8. 
 
 ^ Bamsden v. Brearley, L. fi. 10 Q. B. 147. 
 
 ^ Wake V. Parker, 2 Keen, 59 ; Holmes v. Penney, 3 K. & J. 90. 
 
 * 33 & 34 Vict. c. 93, B. 1 1 ; Summers v. City Bank, L. R. 9 C. P. 580. 
 ^ Boberts v. Evans, 7 Ch. D. 830. 
 
 * Dan. Ch. Pr. 139. See. post, part iv. chap. vii. 
 
 7 Ord. XVI. r. 8 ; Kingsmany. Kingsman, 6 Q. B. D. 122. 
 
 * 45 & 46 Vict. c. 75, s. 1, sub-B. 2. See Re Outwin's Trusts, 48 L. T. 410. 
 
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J=2i HUSBAND AND WIFE. [paet i. 
 
 jointly with any other person or persons of the estate of any 
 deceased person, or a trustee alone or jointly as aforesaid of pro- 
 perty subject to any trust, may sue .... in that character 
 without her husband, as if she were a feme sole."^ She need 
 not describe herself as a married woman, or allege that she is 
 suing in respect of her separate estate ; ^ but it appears that 
 in the Chancery Division it was the practice to require the 
 description of a female plaintiff.' 
 M. w. p. Act, It has been decided that a woman married before the above 
 speotiveasto Act Came into operation may now sue alone both in contract^ and 
 procedure. j^^ tort,^ and in her own and a representative right in respect of 
 a cause of action which arose before the Act came into force, as 
 though she were a single woman. 
 Married Leave to sue alone is not required, and she cannot be com- 
 
 piaStiff^aeed peHsd to give Security for costs, because she does sue alone," even 
 not give where she has no separate estate at the time of bringing the 
 
 security for . ^ . . 
 
 costs. action ; ' and her sole undertaking as to damages when she applies 
 
 Exceptions, for an interlocutory injunction is sufficient." But where she 
 chooses to sue by a next friend who is a person of no substance, 
 she will be required to give security for costs ; ' and where she 
 has no separate estate, except such as she is restrained from 
 anticipating, and she enters an appeal without a next friend, she 
 must give security for the costs of the appeal ; " or where she has 
 no separate property at all, and appeals without a next friend." 
 
 Her personal incapacity to act as a next friend to an infant 
 
 has not been removed.'^ 
 
 Capacity of The Married Women's Property Act gives a wife the power to 
 
 hnebandTn ^^^ ^^^ husband generally in respect of her property ; '^ and where 
 
 contract and gj^e dies her personal representatives can carry on the action." 
 
 band's right to This power or capacity of the wife to sue her husband in contract 
 
 sue wi e. .^ respect of her separate estate is not new law, and has been 
 
 long recognised by the courts of equity." The right of the 
 
 husband to sue the wife in respect of her separate property, 
 
 as regards post-nuptial liabilities is recognized,'* but not as 
 
 1 Sect. i8. 2 See Eule 5 of the Practice Master's Kules. 
 
 ^ Such cannot be since the Marriage Women's Property Act, 1893, came into force. 
 
 * Severance v. Civil /Service Co-operative Supply Association, 48 L. T. 485. 
 
 ' James v. Barraud, 49 L. T, 309 (trespass) ; Weldon v. Winslou', 13 Q. B. D. 
 784 (trespass) ; Weldon v. He Bathe, 14 Q. B, D. 339 (trespass) ; Lou^e v. Fox, 15 
 Q. B. D. 667 (assault). 
 
 e Threlfall v. Wilson, 8P. D. 18. '' Be Isaac, Jacob v. Isaac, 30 Ch. D. 41S. 
 
 * Pike V. Cave, 62 L. J. Ch. 937. 
 
 " Be Thompson, Stevens v. Thompson, 38 Ch. D. 317. 
 1° Whittaher v. Kershaw, 44 Ch. D. 296. 
 " Weldon v. Scattergood, W. N. 1887, 69. 
 
 ^'- Be Duhe of Somerset, Thynne v. St. Maur, 34 Ch. D. 465. ^^ Sect. 12. 
 
 " Hale V. Sheldrake, 61 L. T. 292. ^^ Woodward v. Woodward, 8L. T. 749. 
 i" Ainslie v. Medlicott, 13 Ves. 266 ; Early. Ferris, 19 Beav. 67 ; Butler y. Butler, 
 16 Q. B. D. 374- 
 
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woman suing- 
 
 CHAP. xvi.J ACTIONS BY AND AGAINST. 425 
 
 regards ante-nuptial obligations.' The right to sue the husband 
 in tort (though limited) is a novel provision.^ The wife 
 will no longer be obliged to sue the husband together with her 
 next friend ; and she may proceed against him either by ordinary 
 action," or summarily.* Where she is living apart from her 
 husband, and has instituted proceedings for divorce against him, 
 she can restrain him by injunction from entering her house, 
 which forms part of her separate property.* 
 
 A married woman will now, as heretofore, be allowed, under Married 
 proper circumstances, to sue alone,'' or continue an action, in informd ' 
 fomd pauperis ; ' but where she appeals in forwiA pauperis p'"'P'^"^- 
 in an action brought against a person other than her hus- 
 band, her husband as well as herself must make the affidavit of 
 poverty.' 
 
 The effect of the presumption that a contract made by a Presumption 
 
 ■ T iT_ J* 1^ J} 1 i-j-j-gof law that 
 
 married woman has been made in respect oi her separate estate, married 
 will entitle her to bring an action solely and in her own name in woman now 
 
 a •' _ _ contracts m 
 
 respect of such contract, and the onus of proving that it was not her own right. 
 so made will lie upon the other party to the contract, if the 
 husband or some third party is sought to be Joined as plaintiff, 
 for the purpose of obtaining relief against him. This presump- 
 tion of law is strongly in favour of the married woman when 
 dealing with moneys or other property ; thus, where she opens 
 an ordinary banking account in her name, the contract is primd 
 facie between the banker and herself, and the rights depending 
 on the contract are vested in her."* 
 
 A married woman is subject to the provisions of the Statutes statutes of 
 of Limitations, and must bring her action on any contract within ™' '^ ^°^^' 
 the limit of six years from the date of its inception; and 
 for any trespass, false imprisonment, assault or battery, within 
 four years of the time when the right of action accrued ; for 
 the Married Women's Property Act, 1882, has made her "dis- 
 covert " for the purpose of bringing actions within the meaning 
 of 2 1 Jac. I. c. 1 6." She must bring her action for libel within 
 six years.'^ 
 
 If a married woman brings an action unsuccessfully her free Liability for 
 separate property is liable to satisfy the costs of the opposite 
 
 ^ Butler V. Butler (uhi sup.). 
 
 ' Sect. 12. la Phillips v. Barnett, 1 Q. B. D. 440, it was held that a woman 
 who had been divorced could not sue her husband for an assault committed during 
 coverture. 
 
 ^ Sect. 12. <* Sect. 17. ^ Symonds v. Hallett, 24 Cb. D. 346. 
 
 " Hind V. WUtmme, 2 K. & J. 458. ' Be Foster, 18 Beav. 525. 
 
 * Be Boberts, Biff v. Boberts, 33 Ch. D. 265. 
 
 ' Sect. I, sub-sect. 3 ; 56 & 57 Vict. c. 63, s. I. 
 
 ^" Sects. 6 and 7, overruling in effect Lloyd v.Puf/he, L. K. 8 Ch. App. 88 
 
 ^1 Lowe V. Fox, (vbi sup.). '- Weldon -t. Neal, 51 L. T. 289. 
 
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426 
 
 HUSBAND AND WIEE. 
 
 [PAKT I. 
 
 Under M. W. 
 P. Act, 1882. 
 
 Set-off. 
 
 Jnder M. "W. 
 P. Act, 1893. 
 
 Summary. 
 
 party ; ' but her separate estate, subject to ihe restraint against 
 anticipation, is not available for this purpose.^ The costs of an 
 unsuccessful action begun by a married woman suing by her next 
 friend before the Act of 1882 came into force could only be 
 raised out of such free separate property as she possessed at the 
 time of bringing the action.^ Where a married woman has had 
 judgment in an action given against her with costs, with execu- 
 tion limited to her separate estate, and while the judgment 
 remains unsatisfied, the plaintiff in the same matter makes an 
 unsuccessful application which is dismissed with costs, the plaintiff 
 is entitled to set off against the costs of his unsuccessful applica- 
 tion the unpaid costs of his successful action.' 
 
 A considerable alteration in respect of her liability for costs 
 has been made by the Married Women's Property Act, 1893 ;° 
 for where either by herself or by next friend she commences an 
 action or proceeding and is condemned in costs, the Court before 
 which such action or proceeding is pending may from time to 
 time order payment of the costs of the opposite party out of her 
 property ivhich is suhject to a restraint upon anticipation. This 
 provision has, however, been held not to apply to an appeal 
 instituted by her,' nor does it give the Court jurisdiction to alter 
 the effect of an order made before the Act came into operation.' 
 But it does apply to a counter-claim set up by her in an action 
 against her.' 
 
 Thus, in respect of her own property, and property which she 
 holds in a representative capacity, her husband or a next friend 
 need not be joined as a party in any action, as was formerly 
 necessary. Not only need the husband not be joined, but he 
 may himself be a defendant at the suit of his wife in respect of 
 her property ; ' and the old practice with reference to the married 
 woman obtaining leave to sue without her husband or next friend, 
 on giving such security for costs as a Court or judge might think fit 
 and proper, is swept away.'" But she now becomes wholly respon- 
 
 ' Sect. 1, sub-s. 2 ; Gahnoye v. Cowen, 58 L. J. Ch. 769. 
 
 ^ Cox Y.Bennett, [1891] i C. D. 617. lie Andrews, 3oCh.D. 159, to thecontrary 
 is overruled. 
 
 ^ Be Olanvill, Ellis y. Johnson, 31 Ch. D. 532. But the principle of this case can 
 have little or no effect at the present time. See Neville v. Baker, 4 Times Eep, 674 ; 
 Cox V. Bennett (uhi sujk). 
 
 * Felton {Bros.) v. Harrison, No. 2, [1892] i Q. B. 118. 
 
 ^ 56 & 57 Vict. c. 63 8. 2. 
 
 ^ Hood Barrs v. Catlicart, [1894] 3 Ch. 376. 
 
 ' Me iMmley, Ex parte Hood Barrs [1894] 3 Ch. 135. 
 
 ^ Hood Barrs v. Cathcart, [1895] i Q. B. 873. 
 
 ^ Sect 12 of 45 & 46 Vict. C.75. 
 
 '" A plea that the plaintiff'is a married woman is more than ever ineffectaal. See 
 Ahouloffv. Oppenheimer, 30 W. R. 429. 
 
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CHAP. xvi.J ACTIONS BY AND AGAINST. 427 
 
 sible as regards her property for the payment of the costs of any 
 action or proceeding (other than appeals) which is found to be 
 improper. 
 
 Section 2. 
 
 Actions against Husband and Wife. 
 
 a. Joint actions against Husband and Wife. — The principles Actions 
 now regulating the bringing of joint suits against husband and husband 
 wife are much the same as those regulating the commencement of *"^ ^'*®: 
 joint actions by them. The husband will never be joined for 
 mere form ; his joinder as defendant will be a matter of substance. 
 Formerly, a husband and wife must have been sued jointly in 
 contract in two cases : (i) on contracts made by the wife before 
 marriage ; (ii) on contracts in which a claim is made against her 
 as executrix or administratrix/ As regards the latter case, the 
 law is definitely altered by the Married Women's Property Act, 
 1882, for she may now as executrix or administratrix or trustee 
 be sued alone without her husband.^ As regards the first case 
 the husband is still liable to be sued jointly with his wife, also 
 for her ante-nuptial debts. If he was married before August 9, 
 1870,^ he is at common law liable for her ante-nuptial contracts 
 and debts. If he was married between that date and July 30, 
 1874,'' he is not liable at all for her ante-nuptial debts, but only 
 for contracts and torts ; but after the latter date he is liable to 
 the extent of certain assets received by him in right of his wife 
 for her ante-nuptial debts, contracts and torts ;^ and since 
 January i, 1883,° in respect of her assets received by him 
 generally on marriage.' Creditors proceeding under the sections 
 rendering the husband liable must be careful in exercising their 
 discretion as to joining him or not, and the onus of proof that he 
 has received assets of his wife will be cast upon them,^ and if they 
 fail in their proof, they will be visited with the payment of his 
 costs.^ Where the husband is properly joined in an action 
 aga,inst his wife for her ante-nuptial liabilities, but is successful 
 in his defence, the amount of his costs can be added to the wife's 
 debt, and be recovered out of her separate property.'" 
 
 ' Dicey, Part. 297. ^ Sect. 18. 
 
 ' Date of the passing of tLe Married Women's Property Act, 1870. 
 
 * Dale of the passing of the Married Women's Property (Amendment) Act, 
 
 1874- 
 
 5 See ante, chap, xii., Obligations and Liabilities arising out of Coverture, 
 pp. 257 et seq. 
 
 * Date of the operation of the Married Women's Property Act, 1882. 
 
 7 Sects. 14 and 15. ^ See Matthews v. Whittle, 13 Ch. D. 811. 
 
 » London and Provincial Bank v. Bogle, 7 Ch. D. 773. '" Ihid. 
 
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428 
 
 HUSBAND AND WIFE. 
 
 [PAET I^ 
 
 Joint judg- 
 ment against 
 husband and 
 ■wife. 
 
 In tort. In actions founded in tort, as in those founded on contract,, 
 
 the husband will not in the future be joined for mere form's sake, 
 but as a matter of substance. In actions founded on the tort of 
 his wife, he will be joined under two different sets of circumstances : 
 (i) where the tort is ante-nuptial ; (a) where it may be the joint 
 tort of himself and his wife;^ or, (b) where he has received on 
 marriage property belonging to his wife, and to the extent of 
 such property he will be liable ; (2) where the tort is post-nuptiaL 
 The common law liability of the husband for his wife's post-nuptial 
 torts remains unaffected by the Married Women's Property Act, 
 1882.^ 
 
 A joint judgment obtained against the husband and wife will 
 now be a judgment against the husband personally to the extent 
 of his liability, and against the wife as to her separate property ;. 
 and as to the residue of the debt or liability, the judgment will 
 be a separate judgment against the wife as to her separate pro- 
 perty.^ The separate existence of husband and wife is so clearly 
 recognized that if a party suing them jointly obtain a judgment 
 against the husband which is unsatisfied, the wife is entitled to- 
 the rule that a judgment recovered against one of two joint 
 contractors is a bar to an action against the other.'' Where 
 husband and wife are jointly sued, they shall both be served, un- 
 less it is otherwise ordered." 
 
 Claims against husband and wife may now be joined with 
 claims against either of them separately.* 
 
 h. Action against ITusband alone on Contracts made by the Wife, 
 
 ■ — Wherever the cause of action brought against the husband 
 
 arises from some act or representation on his part by which ha 
 
 directly or by implication of law confesses his liability on the 
 
 contract made by his wife, then the husband may be sued alone, 
 
 as where he requests money to be lent to his wife,' or for 
 
 necessaries supplied to her under conditions which render him 
 
 liable for their supply.' But if the contract has been entered 
 
 into by her in respect of her separate estate, he cannot be sued 
 
 alone in regard to it. 
 
 Husband may The husband may be sued alone for his wife's ante-nuptial 
 
 in respect of contracts, debts, and torts ; but before he can be rendered liable 
 
 nupTiaf o^on^'^ in respect of them, it must be proved that he has received assets 
 
 tracts and through his wife." This new provision renders him liable to 
 
 Joint serTioe 
 on husband 
 and wife. 
 
 Joint and 
 several claims 
 against hus- 
 band and wife. 
 
 Actions 
 against hus- 
 band alone on 
 contracts of 
 ■wife. 
 
 ^ Vine v. Saunders, 4 Bing. 96. 
 
 2 45 & 46 Vict. c. 75, s. 15. 
 
 ^ E. S. C. 1883, Ord. IX. r. 3. 
 
 ' Stephenson v. Hardy, 3 Wils. 388 
 
 ^ See ante, chap, xiv., Cuntracts by Married Women, pp. 303 et seq 
 
 " 45 & 46 Vict. c. 75, s. 14. 
 
 2 Serolca v. Kattenbero, 17 Q. B. D. 177. 
 ^ Hbarev. NiUett, [1891] i Q. B. 781. 
 ^ Ibid. Ord. xviii. r. 4. 
 
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OHAP. xvi.J ACTIONS BY AND AGAINST. 429 
 
 be sued alone not only during coverture but after it has termi- 
 nated, by death or divorce, and, in this latter respect, has broken 
 in upon the old common law doctrine which freed him from 
 liability for his wife's ante-nuptial engagements or torts, even 
 though he had received assets.^ His liability, however, will 
 extend only to the amount of the assets received by him through 
 his wife; and if he has not received any assets at all in her right, 
 he will be entitled to judgment and costs.^ His liability for 
 such ante-nuptial debts of his wife will cease after six years from 
 the time when they were incurred.^ 
 
 c. Actions against Wife alone. — A married woman formerly Actions 
 •could not be sued alone except under the same circumstances as afonef ^' * 
 those in which she could sue alone,^ but her husband was a 
 necessary party. Where she was sued in respect of her separate 
 estate he must have been joined ;* so, too, where she was sued 
 on her ante-nuptial liabilities. Under the Married Women's 
 Property Act, 1870, it was at first held that she could not be 
 sued alone in respect of her separate earnings, but in such action 
 her husband had to be joined as a defendant;" but in a later 
 case she was held liable to be sued alone in respect of her ante- 
 nuptial liabilities,^ and under the like Act of 1882 she may in 
 «11 respects be sued, both in contract and in tort, as a single 
 woman, and her husband need not be made a party in 
 the action,^ and she may be solely sued by her husband.' 
 This liability of a married woman to be sued alone for her ante- 
 nuptial debts and liabilities is expressly confirmed by this last 
 Act,'° and is not curtailed by her settling her own property on 
 •herself on marriage, with a restrainst upon anticipation." In 
 the matter of procedure the Act of 1882 is retrospective ; m. w. p. Act, 
 consequently a woman married before that Act came into force is speotive as to 
 liable to be sued alone after it came into force in respect of a procedure. 
 contract made by her before it came into operation." 
 
 The liability of a married woman to be sued on a valid contract Possession of 
 depended, as has been seen," both on the principles of equity and property'* * 
 under the Married Women's Property Act, 1 882, on the possession ^aHdTt*'^o/° 
 
 contract ; 
 ^ See Heard v. Stamford, 3 P. Wms. 409; Bell v. Stacker, 10 Q. B. B. 129. 
 This last case decided that the Married Women's Property Act, 1874, did not deprive 
 -the husband of hie common law protection against the claims of his wife's ante-nuptial 
 •creditors after her death, though he had received assets in her right. 
 ^ Seel. 15. 2 Beelc v. Fierce, 23 Q. B. D. 316. 
 
 * Dan. Cli. Pr. 185, see ante, p. 422. 
 " Hancocks v. Lablache, 3 C. P. D. 197. ^ Ibid. 
 
 ' Mercier v. Williams, 9 Q. B. D. 337. ^ Sect. I, sub-s. 2. 
 
 » Butler V. Butler, 16 Q. B. D. 374. " Sect. 13. 
 
 " Sect. 19. 
 
 12 Gloucestershire Banking Co. v. Phillips {Creagh, Third Party), 12 Q.B, D. 536; 
 £ursill V. Tanner, 13 Q. B. D. 691. 
 
 15 Ante, chap, xiv., Contracts by Married Women. 
 
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430 HUSBAND AND WIFE. [paet i. 
 
 of free separate property at the time of entering into the contract,' 
 with respect to which she must reasonably be deemed to have 
 contracted ;^ and the onus of proof of possession of such property 
 is on the plaintiff. But where a married woman pays money 
 into court as the price of getting leave to defend, she cannot if 
 the plaintiff recovers be heard to say that the money so paid in is 
 not available to satisfy the judgment.' 
 
 But if a married woman is sued " otherwise " than in contract, 
 
 the existence of separate estate when she incurred her liability 
 
 but not under does not seem to be necessary.^ Under the Married Women's 
 
 1893.' ' ' Property Act, 1893, the existence of any separate property 
 
 at the time of entering into a contract is not necessary to its 
 
 validity.* 
 
 What property As the liability of a married woman is proprietary and not 
 
 liable to satisfy t a • -, , • , i ni . -, i 
 
 judgment. personal," a judgment against her can only be executed on her 
 free separate property, that is, property which she is not 
 improperly restrained from anticipating.' The various stages of 
 
 In equity. ]ier proprietary liability are as follows : Under the principles of 
 equity the free separate property she possessed at the date of 
 
 Under M. W. incurring her liability ; ^ under the Married Women's Property 
 
 ' ^°' Act, 1870, her separate property which she possessed at the time 
 
 of incurring her liability, whether free or subject to the restraint 
 
 Under M. w. against anticipation ; ' under the Married Women's Property 
 
 &1893. ' Acts 1882 and 1893 free separate property possessed by her at 
 
 the time of incurring her liability and subsequently acquired 
 free separate property, such property being deemed to be " free " 
 if subject to the restraint against anticipation imposed by herself 
 in such a way as to improperly withdraw it from the claims of 
 her creditors." There is an exception under the Act of 1893 to 
 the effect that costs of an unsuccessful action or proceeding 
 instituted by her may be raised out of her property though subject 
 to such restraint." Property which a married woman becomes 
 possessed of or entitled to while discovert is now liable to satisfy 
 claims against her.'^ This new provision overrules Beckett v. 
 
 ^ PaUiser v. Ourney, 19 Q. B. D. 519 ; Ee Shalspear, Dealin v. Lakin, 30 Ch.D. 
 169 ; Stogdon v. Lee, [1891] l Q. B. D. 661 ; Pelton (Bros.) v. Harrison, [1891] 
 2 Q. B. 422. 
 
 2 Harrison t. Harrison, 13 P. D. I So ; LeaJce t. Driffield, 24 Q. B. D. 98. 
 
 5 Bird V. Barstow, [1892] i Q. B. 94. 
 
 * lie Kershaw, Whittaker v. Kersliau; 45 Ch. D 230 ; but see Kay, L.J., in Hood 
 Barrsy. Cathcart, [1894] 2 Q. B. 574. 
 
 5 Sect. I {a). 
 
 ^ Scott V. Morley, 20 Q. B. D. 120. '' Ibid. 
 
 8 Johnson v. Gallagher, 30 L. J. Ch. 298. 
 
 " London and Provincial Banl; v. Bogle, 7 C'li. D. 773 ; Axford v. Beid, 
 22 Q. B. D. 548. 
 
 " BcoUy. Morley {vhi swp.). " Sect. 2. 
 
 ^2 56 & 57 Yict, c. 63, 8, I (c). 
 
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CHAP. XVI.] ACTIONS BY AND AGAINST. 431 
 
 Tasker ;* and Pelton (Bros.) v. Harrison.^ Property on the termi- 
 nation of the coverture ceases to be separate estate ; and if it had 
 been subject to the fetter of restraint, her creditor could not 
 have availed himself of the cesser of the restraint ; but under the 
 last Act he will now be able to enforce his judgment against any 
 property she is possessed of while discovert. 
 
 Unconditional judgment cannot be signed against a married Ex^cuiion of 
 woman under Order xvi. r. i ;' and execution can only issue {"jnfj^^t' fj.ee 
 against her separate estate free from restraint against anticipation.' separate 
 
 o -t ^ ^ o r property 
 
 Judgment may be signed against her^ (a) in defaidt of appearance, 
 although thfrindorsement of the writ does not contain an allegation 
 that she was possessed of separate property at the time the 
 liability was contracted ; but the judgment must be limited as 
 directed in Scott v. Morley ;^ (b) in default of defence ; in such a 
 case the statement of claim, whether specially endorsed or not, 
 m.ust contain an allegation that the married woman had separate 
 property at the date of the contract in respect of which the action 
 was brought;" and if it does not contain such allegation, it must 
 be amended or an affidavit filed that she did possess separate 
 property. The above rules apply to contracts governed by the 
 Married Women's Property Act, 1882, but as under the Married 
 Women's Property Act, 1893, section i (a) the possession of sepa- 
 rate property, whether free or restrained, is not now a condition 
 precedent to a valid contract by a married woman, it will not be 
 necessary to allege that she possessed separate projDerty at the 
 date of the contract ; but as the later Act preserves the eflfect of 
 the restraint, execution will be limited to what is her free 
 separate property.' 
 
 Claims against a married woman will now be barred unless statute of 
 brought within the time limited by the Statute of Limita- ™' ^ '°°^' 
 tions.^ 
 
 The following forms of judgment against a married woman have M. w. P. Act. 
 been settled. Under the Married Women's Property Act, j^udgmen™ ° 
 1870: "It is adjudged that the plaintiff do recover the sum of ™'^®''- 
 £ — , and costs to be taxed against the defendant (the married 
 woman) such sum and costs to be payable out of her separate 
 property, whether subject to any restriction against anticipation 
 or not and not otherwise." ' 
 
 1 19 Q. B. D. 7. 2 [1891] 2 Q. B. 422. 
 
 ^ Bursiil V. Tanner, 13 Q. B. D. 691 ; Perlcs v. Mylrea, AV. N. 1884, 64. 
 ■* Perlcs V. Mylrea (vhi sup.) ; Beckett v. Tasker {uhi sup.). 
 
 ^ 20 Q. B. D. 120. But see such a case as Beard v. Belwood, 89 L. T. 
 Jo. 27. _ " See TetUy v. Griffith, 57 L. T. 673. 
 
 '' Sect. I, proviso. 
 
 8 Be Hastings, Hallett v. Hastings, 35 C. D. 94. 
 ' Axford V. Reid, 22 Q. B. D., at p. 553. 
 
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432 HUSBAND AND WIFE. [pakt i. 
 
 M. w. P. Act, Under the Married Women's Property Act, 1882: "It is 
 judgment adjudged that the plaintiff do recover £ — and costs (to be 
 "'^'^®'^' taxed) against the defendant (the married woman), such sum 
 
 and costs to be payable out of her separate property, as hereinafter 
 mentioned, and not otherwise. And it is ordered that execution 
 hereon be limited to the separate property of the defendant (the 
 married woman) not subject to any restriction against anticipation, 
 unless by reason of the Married Women's Property Act, 1882, 
 the property shall be liable to execution, notwithstanding such 
 restriction."' The only difference in the case of ante-niiptial and 
 post-nuptial liabilities is, that in the former there is no need on 
 the part of the plaintiff to prove that the defendant possessed 
 property at the time of their being incurred.^ 
 How judgment Judgment obtained against a married woman may be enforced 
 Legal execu- against her free separate property by legal execution, as by fi-fa., 
 '™ ' or elegit in the case of her realty ; and by equitable execution 
 
 where legal execution cannot reach the corpios of the property 
 upon which the order is to operate, through the existence of some 
 Beceiver. legal impediment, as by the appointment of a receiver.' But the 
 judgment will not be enforced against arrears of income, subject to 
 the restraint, which have not come into her hands though they 
 may have become payable to her before the judgment.'' 
 
 The receiver does not interfere with the possession of the 
 property by the trustees, but receives from them whatever they - 
 would otherwise have paid to the married woman ; but the rights 
 of the trastees over the property remain unaffected.* The receiver 
 may be appointed by an order obtained in a suit brought to 
 charge the woman's separate estate ; but he may also be appointed 
 by an order without any fresh suit, where proceedings are already 
 pending ; " also where her property has had an order made 
 against it removing the restraint upon anticipation for the purpose 
 of satisfying the costs of a proceeding unsuccessfully instituted by 
 her within the meaning of section 2 of 56 & 57 Vict. c. 63.^ 
 ■Sequestration. Judgment may also be enforced by sequestration,' and a garnishee 
 Committal order.^ She may also be committed under the Debtors' Act 1 869,'''' 
 for ante-nuptial debts and post-nuptial torts," on the ground that 
 
 ^ Scott V. Morley, 20 Q. B. D. 120 ; Downey. Fletcher, 21 Q. B. D. 11. 
 
 ^ See Downe v. Fletcher {uhi sup.). 
 
 2 Bryant v. Bull, 10 Ch. D. 153 ; Fuggle v. Bland, 11 Q. B. D. 711 ; Be Peace 
 and Waller, 24 Ch. I). 405. 
 
 ^ Sbod Barrs v. Cathcart, [1894] 2 Q. B. 559, 567 ; Lqftus v. Heriot, [1895] 
 2 Q. B. 212. In Fillers v. Edwards (71 L. T. 788) the Court of Appeal so decided, 
 but with some reluctance ; but Loftus v. Heriot has been" since decided. 
 
 ^ Be Peace and Waller (ubi sup.). ^ Ibid. 
 
 7 Hood Barrs v. Oatltcarl, [1895] i Q. B. 873. 
 
 « Miller v. Miller, 2 P. D. 54 ; Hyde v. Hyde, 13 P. D. 166. 
 ' " Holtby V. Hodgson, 24 Q. B. D. 103. i" 32 & 33 Vict. 0. 62, s. J. 
 
 " iScoit V. Morley {uhi sui>.), Bobinson v. Lynes, [1894] 2 Q. B. 577. 
 
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CHAP. XVI.] ACTIONS BY AND AGAINST. 433 
 
 where she was primarily liable to be taken under a writ of capias 
 ad satisfaciendum, she can now be summoned under section 5 of 
 the Debtors Act, 1869, and dealt with accordingly. 
 
 Judgment, on the other hand, cannot be enforced against her How judgment 
 by committal for her post-nuptial debts/ or by being made the enforced,* 
 ground for issuing a bankruptcy notice under section 4, sub- 
 section I, of the Bankruptcy Act, 1883.^ If she is imprisoned 
 for non-compliance with an order to pay costs she is entitled to 
 her writ of habeas corpios? 
 
 Where the property of a married woman is in trust, and her Joinder of 
 creditors seek no more than to obtain a charge upon it, her 
 trustees are not necessary parties to the suit ; ■* but where they 
 seek to obtain payment out of the separate property vested in 
 trustees, they must make the latter joint defendants with the 
 married woman." An order cannot be made against the trustees 
 unless they are present before the Court, but an order may be 
 made declaring the demand of the woman's creditor payable out 
 of the separate estate. This would seem to be still the law 
 under the Married Women's Property Act, 1882. 
 
 1 Meager v. Pellew, 14 Q. B. D. 973 ; Draycott v. Harrison, 17 Q. B. D. 147. 
 
 2 -Be Gardiner, Exparte Coulson, 20 Q. B. D 249 ; Be Lynes, Ex parte Lester, 
 [1893] 2 Q. B. 113. ^ Be Walter, 7 Times Rep. 445. 
 
 * Picard v. Hine, L. B. 5 Ch. App. 274; CoUett v. Dickenson, 11 Ch. D. 687 ; 
 Davies v. Jenkins, 6 Ch. D. 728 ; Flower v. JBuller, 15 Gh. D. 665 ; Be Peace and 
 Waller, 24 Ch. D. 405. ' Collett v. DicJeenson (jtii sup.). 
 
 2 E 
 
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CHAPTER XVII. 
 
 AGREEMENTS FOE, SEPARATION. 
 
 Separation 
 det-ds ; 
 
 formerly held 
 contra biynos 
 mores. 
 
 Separation Deeds : 
 
 In Equity held Contha Bonos Moees . 
 
 Recognition in Equity .... 
 
 Recognition at Common Law 
 
 Intervention op Tbusteb Unnecessary : M. W. P. 
 Act, 1882 
 
 Molestation — What is . . . 
 
 Specific Performance of Agreements 
 
 Jurisdiction op Divorce Court over 
 
 Arrangement for Prospective Separation Bad 
 
 Determination of Separation Arrangement 
 
 Custody op Children : Infants' Custody Act, 
 Dissolution op Marriage 
 
 Grounds for .... 
 
 Defences in Suits for . 
 Judicial Separation : Grounds for 
 Jactitation op Marriage 
 
 Summary Jurisdiction (Married Women) Act, 1895 
 Restitution of Conjugal Rights : Matrimonial Causes 
 
 Act, 1884 
 
 Right op Divorced Woman to Retain Married Name 
 
 S73 
 
 434 
 435 
 435 
 
 436 
 438 
 439 
 441 
 442 
 
 443 
 445 
 446 
 446 
 447 
 447 
 448 
 448 
 
 451 
 452 
 
 There are three metliods of putting an end to or suspending the 
 relation of husband and wife: (i) By divorce a vinculo matri- 
 monii, or dissolution of marriage;' (2) by judicial separation ; ^ 
 (3) by mutual separation. The first two can only be obtained 
 by judicial intervention ; the latter is effected by mutual and 
 voluntary arrangement between the parties and their friends. 
 To avoid recriminations, and unpleasant, not to say scandalous 
 exposures in open court, and more effectually provide for their 
 altered circumstances, the parties execute deeds of arrangement, 
 which are called separation deeds. 
 
 At one time the courts of equity were reluctant in any way 
 to recognize the validity of these arrangements, and where they 
 were in the form of articles of separation, refused to carry them 
 
 ^ Post, p. 446. 
 
 Post, p. 447. 
 
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CHAP. xvii.J AGREEMENTS FOR SEPARATION. 435 
 
 into effect.' The ground of this attitude of the Courts towards 
 these arrangements was that the marriage tie was indissoluble, 
 and could not be broken except by the supreme force of the 
 Legislature, or suspended by the sentence of a competent ecclesi- 
 astical Court pronounced ^TO salute animceoi the offending party ; 
 and that it was contra honos mores, that is, against public policy, 
 to allow them. Indeed, in more than one case it was seriously 
 doubted whether this separation mi pais of husband and wife was 
 valid and ought to be enforced.^ In time, however, the courts Eeoognition 
 of equity recognized that such deeds, when not contemplating a equlty"^'^ "^ 
 future separation, were valid so far as related to the trusts and 
 covenants by which the husband made a provision for the wife, 
 and the indemnity given to the husband by the trustee." The 
 theory of a deed of separation is that it is a contract between the 
 husband and wife through the intervention of a third party, 
 namely, the trustee ; and the husband's contract for the benefit 
 of the wife is supported by the contract of the trustee on her 
 behalf.* As will be seen lower down,* the more modern opinion 
 is that husband and wife may enter into a deed of separation 
 without the intervention of a trustee." 
 
 In the earlier times the common law Courts gave effect to a deed Recognition at 
 of separation, and held that it was a good answer to a husband 
 seeking by habeas corpus to obtain the person of his wife.' The 
 Court of King's Bench, in Rodney v. Chamhers,^ held that cove- 
 nants by the husband with the wife's trustees to allow her a sum 
 of money on their mutual separation could be enforced, and that 
 the husband's liability in such a matter was too inveterate and 
 well settled to be disturbed. In this case it was also held that 
 the husband's covenant could be enforced even in the case of a 
 future separation, provided that it took place with the consent 
 and approbation of the trustees. The way the Courts enforced 
 
 1 Worrall v. Jacob, 3 Mer. 256. 
 
 ^ See St. John v. St. John, 11 Ves. 526; Westmeath v. Westmeath, 1 Dow, 
 H. L. N. S. 519. On this point Mr. Jacob {2 Eop. H. & W. 274 n.) wrote as 
 follows : " The law does not directly prohibit a husband and wife from living in a 
 state of voluntary separation. So long as both are contented with their state of 
 separation there is no law to prevent or punish its continuance. The ecclesiastical 
 Courts (now the Divorce Court) do not interfere in these cases, even when the fact of 
 separation comes judicially before them, unless their assistance be prayed by one of 
 the parties. If a suit for a divorce, or for a declaration of nullity of marriage fails, 
 the sentence is confined to » mere dismissal of the suit, not proceeding to direct a 
 return to cohabitation. The compromise of a suit for restitution of conjugal rights 
 
 appears not to be prohibited These Courts therefore, do not treat a state of 
 
 separation as necessarily unlawful, because it has not been preceded by their sentence." 
 See SmytheY. Smythe, 18 Q. B. D. 544. 
 
 ^ St. John V. St. .John (uhi sup.) ; see Lord Eldon's remarks in that case, p. 537. 
 
 ^ Per Lord Westbury in Sunt v. Munt, 4 De G. F. & J. 221, 239. 
 
 ^ Post, p. 436. " Sweet V. Sweet, [1895] i Q. B. 12. 
 
 '' Bex V. Mead, i Burr. 542 ; Rex v. Winton, 5 T. fi. 91. » 2 East, 283. 
 
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436 HUSBAND AND WIFE. [part i. 
 
 these deeds was by giving effect to the minor and auxiliary part 
 of the agreement, such as the covenant of the husband to pay an 
 annuity, or the covenant of the trustees to indemnify the husband ; 
 but the principal and essential motive, the actual separation, they 
 did not enforce.^ 
 
 The mere arrangement for separation was not recognized by 
 the ecclesiastical Courts, and formed no bar to a suit for the 
 restitution of conjugal rights.^ 
 Validity of In time, however, a conviction that to settle unhappy differ- 
 
 ration fully* " ences and quarrels in the domestic forum of friends and relatives 
 modOTn^me" ^^ really less shocking than parading them in open court, 
 unless clearly brought about a change in the attitude of the Courts towards 
 policy. these private arrangements, and a series of decisions re- 
 
 cognizing their validity has long since placed their legality 
 on a secure basis and footing, unless the deed is founded on 
 a consideration clearly illegal, such as an agreement to facili- 
 tate divorce proceedings,^ or to enable the wife to commit 
 adultery.* 
 
 The Courts now give full effect to a deed arranging for present 
 separation with the intervention of a trustee, and the mere fact 
 of its being voluntary and not founded on valuable consideration, 
 does not make it less binding on the husband.^ It is now 
 no longer necessary to recite facts which would entitle one 
 of the parties to a judicial separation, or a divorce a vinculo 
 matrimonii.^ 
 Agreement for Formerly the intervention of a trustee was in all cases neces- 
 \riftou't°he sary,' but now, where the wife is at arms' length with her 
 intervention husbaud, and is proceeding against him in the Divorce Court, 
 she may contract with him, without the mtervention of a trustee, 
 for the abandonment of the suit in consideration of an annuity to 
 be paid by him ; and from this ifc follows that she can enter into 
 a valid and enforceable contract to live separate and apart from 
 him.* " The trustee was interposed for the purpose of supplying 
 a consideration when otherwise there would have been none. 
 The notion was that the contract between husband and wife being 
 primd facie void, the trustee was introduced in order that his 
 covenant to indemnify the husband might afford a consideration 
 for the husband's promise. But where there is a valid considera- 
 
 ^ See Frampton v. Frampton, 4 Beav. 293. 
 " See MortiTnery. Mortimer, 2 Hag. Con. Rep. 318. 
 ' Hope V. H(me, 26 L. J. Ch. 417. 
 
 * Evans v. Uarrington, 2 De G-. F. & J. 481 ; and per Cotton, L. J., in Fearon v. 
 Fori ofAyUsford, 14 Q. B. D. 792. 
 ^ Frampton v. Frampton [uhi sup.). 
 
 8 Maoq. H. &W. 368; Waite v. Waite, 5 Bing. N. C. 341. 
 '' Worrall v. Jacob, 3 Mer. 256. ^ Gihbs v. Harding, L. R. 4 Eq. 490. 
 
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CHAP. XVII.] AGREEMENTS FOR SEPARATION. 437 
 
 tion between husband and wife, there is no need of a trustee." ' 
 Under the Married Women's Property Act, 1882, a married m. w. P. Act, 
 woman has full capacity, without the intervention of a trustee, to ' 
 contract by deed to live apart from her husband." How far a 
 deed unsupported by what may be termed sufficient consideration 
 would of its own force support the separation covenants, if at all, 
 is not yet finally decided.^ But where husband and wife, hope- Hueband and 
 lessly at arms' length, agree to separate and live apart, and the lessiy at arms' 
 only consideration for their separation is their mutual covenants i™s™- 
 to allow each other to live apart, and not to molest each other, 
 or seek for restitution of conjugal rights (but there is no cove- 
 nant by trustees to indemnify the husband, and no covenant by 
 the husband to allow his wife an annuity), such an arrangement 
 will in all probability be recognized and enforced by the Courts. 
 An oral agreement between husband and wife to live separate, 
 which was based on a compromise or cross criminal proceedings 
 for assault, and without the intervention of a trustee, is binding 
 and enforceable.'' 
 
 At one time a distinction was drawn between an executed No distinction 
 
 . . between 
 
 deed arranging for a present separation and an executory arrange- executed and 
 ment, that is, articles of separation ; the Courts would enforce the arrangementB 
 first, but refused to give any validity to the latter. This dis- f™ separation, 
 tinction was swept away by the House of Lords in Wilson v. 
 Wilson,^ in which it was held that the Court of Chancery had 
 power to decree specific performance of such articles, if founded 
 on sufficient consideration, and the parties were separated. There 
 is, however, a distinction which still holds good between an 
 executed and executory arrangement for separation ; thus, if m 
 the first there is an illegal condition or provision among good and 
 valid ones, the whole deed will not be vitiated, but only the illegal 
 provision ignored ; but if in articles of separation there is an 
 illegal condition or provision, such will render the contract 
 null and void, for an executory contract must be performed in 
 toto or not at all ° ; thus, where a deed had been executed, and 
 contained certain stipulations that were good, and others that 
 contravened the law, the latter were held not to vitiate the deed, 
 but the Court only enforced those that were in consonance with 
 the law.' 
 
 The Court of Chancery will decree specific performance of Specific per- 
 executed deeds of separation, and will give the widest possible executed 
 
 arrangements. 
 
 1 Per Lindley, L. J., in Macgregor v. Macgregor, 21 Q. B, D. 431. 
 
 2 Sweet V. Sweet, [1895] i Q. B. 12. ^ See Marshall v. Marshal!, 5 P. D, 19. 
 ■* Macgregor v. Macgregor {uhi sup). ^ i H. L. Cas. 538. 
 
 * Vansittart v. Vansittart, 27 L. J. Cli. 290. 
 ' Ihid.; Hamilton v. Hector, L. R. 13 Eq. 511. 
 
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438 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Covenants in 
 separation 
 deeds not 
 inter-depen- 
 dent. 
 
 Molestation : 
 what is. 
 
 effect to them consistent with the interests of society. It is true 
 that in Marshall v. Sutton ' it was decided that husband and wife 
 were unable of their own will and act, and without the sentence 
 of a competent tribunal, to alter their legal status and capacity ; 
 but the modern view of the law is to the contrary effect, and now 
 a married woman can contract for valid and suflScient reasons to 
 live apart from her husband, and is entitled to come to the Court 
 to enforce specific performance of such a contract.^ The Court 
 will also restrain the parties from persistent breaches of the 
 covenants in the deed; thus, it would restrain a husband from 
 molesting his wife,' and a wife from instituting proceedings for 
 restitution of conjugal rights.' Compensation for breach of the 
 covenants may be assessed at a pecuniary sum.* 
 
 The covenants in a separation deed are independent of each 
 other ; and a breach of the covenant on the one side will not 
 exonerate the covenantor on the other side from the due perform- 
 ance of his covenant.' But it would seem that where one party 
 acted in a manner wholly inconsistent with the objects of the 
 deed, in such a case the other party would be exonerated from 
 liability under the deed ; that is, would be entitled to treat the 
 deed as at an end.'' 
 
 Where a wife or a trustee for her covenants that she will 
 not " molest" her husband, mere adultery on her part, or adultery 
 followed by the birth of a child, is not a breach of the covenant 
 not to molest.^ Molestation must be some act done by the wife 
 or her authority with the intent to annoy her husband, and which 
 is in fact an annoyance to him ; or at least some act must be done 
 by her or her authority with a knowledge that it must of itself, 
 without more, annoy her husband, or annoy a husband with 
 reasonable and proper feeling.^ Therefore, if a wife give birth to 
 a bastard child while living separate from her husband, and put 
 forward that child as being one of her husband's, especially with 
 intent to claim a title or property which a legitimate child of her 
 husband would take, that conduct might be evidence of a breach 
 of a covenant not to molest.'" But where there is no chtm casta 
 clause and the wife covenants not to " annoy " as well as 
 "molest" her husband, adultery resulting in the birth of a 
 child does not disentitle her to the annuity payable under the 
 deed." 
 
 1 8 T. E. 545. 2 w'ilsoa v. Wilson, i H. L. Cas. 538. 
 
 " Saunders v. Rodway, 22 L. J. Ch. 230. * Besant v. Wood, 12 Ch. D. 605. 
 ^ Fearon v. Earl of Aylesford, 14 Q. B. D. 792. 
 * Ihid. "> Fearon t. Earl of Aylesford [uhi sup.). 
 
 ^ Ihkl. ' Per Brett, M.R., in Fearon v. Earl of Aylesford (uhi sup.). 
 
 " Ibid. " I'^ireet v. Sweet, [1895] i Q. B. 12. 
 
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CHAP. XVII.] AGREEMENTS FOR SEPARATION. 439 
 
 Again, formerly the Court was wont to restrain by injunction Restraint by 
 either of the parties from continuing or attempting to commit a pXeediifgfin 
 breach of the covenants in the deed ; thus, a covenant on the Divorce Court. 
 part of a husband in a separation deed, that it should be lawful 
 for the wife to live separate and apart from him, and that he 
 would not compel her to cohabit with him by any legal proceed- 
 ings, was held enforceable in equity by injunction against pro- 
 ceedings in the Divorce Court for the restitution of conjugal 
 rights ; ^ and where by a deed of separation a husband cove- 
 nanted with a trustee to make an allowance to his wife, and the 
 trustee covenanted on behalf of the wife neither to sue for resti- 
 tution of conjugal rights, or alimony, nor to molest, trouble, or 
 disturb the husband, and shortly after the execution the wife 
 commenced proceedings in the Divorce Court for a judicial sepa- 
 ration and for alimony, the husband was held entitled to a per- 
 petual injunction to the extent of restraining the proceedings in 
 the Divorce Court.^ But now, when a suit in the Divorce Ground for 
 Court has been already begun, and one of the parties seeks to tobe pleaded" 
 restrain the other from prosecuting it, the old remedy by prohibi- ^^ "^i^Z,"^ 
 bition, or injunction, or by an indefinite stay of proceedings, on the defence. 
 ground of a covenant in a separation deed, is no longer available, 
 for by the Judicature Act ^ that remedy is taken away ; but 
 every matter of equity on which an injunction against the pro- 
 secution of any cause or proceeding might have been obtained, 
 either unconditionally or on any terms or conditions, may be 
 relied on by way of defence ; where one of the parties to a deed of 
 separation commits a breach of a covenant not to sue for restitu- 
 tion of conjugal rights, the separation deed itself may be pleaded 
 by way of equitable defence."* 
 
 The Court will now decree specific performance of agreements Specific per- 
 to execute a deed of separation, where the stipulations are not executory'^ 
 contrary to law, or in contravention of public policy." But arrangements 
 
 II. -, -I m- •!•« ■•' separation 
 
 the agreement must be founded on suincient consideration. founded on 
 
 Agreements for compromise of divorce suits may be made an fid°eration. 
 order of Court in any Division of the High Court.'^ 
 
 Every separation deed must not only provide for an actual or 
 immediate separation, but must be founded on valuable con- 
 sideration. The following are instances of good and suflScient 
 
 ^ BuntY. Sunt, 31 L. J. Ch. 161 ; see Bowley v. Mowley, L. K. i Sc. & Div. 
 App. 63. 
 
 2 Flower v. Flower, 25 L. T. 902. ^ 36 & 37 Vict. i;. 66, s. 24, sub-s. 5. 
 
 •* Marshall v. Marshall, 5 P. D. 19, approved in Olarh v. Clarh, 10 P. D. 188. 
 
 5 See Vansittart v. Vansittart, 2 De G. & J. 255. 
 
 8 Wilson V. Wilson (ubi sup.); Aldridge v. Aldridge (otUenoise Morton), 
 13 P. D. 210. 
 
 ^ Smythe v. Smythe, 18 Q. B. D. 544. 
 
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440 
 
 HUSBAND AND WIFE. 
 
 [PAET I. 
 
 Consideration 
 must not be 
 illegal. 
 
 Enforcement 
 of deeds. 
 
 consideration for entering into an arrangement for separation : — 
 Forbearance to sue for a divorce,' or for a nullity of marriage ; ^ 
 a compromise of a misdemeanour by one party towards the 
 other.^ Though not absolutely necessary, the usual considera- 
 tion for the husband's covenant to pay an annuity to the wife is 
 the covenant of the trustees on her behalf to hold the husband 
 iademnified against her debts.* A covenant by the trustees 
 to indemnify the husband against his own debts would be suffi- 
 cient ; ^ so, too, a covenant to pay the husband an annuity, or 
 a covenant by the husband to pay half the costs of the deed of 
 separation.^ A release by the husband of his rights in respect 
 of his wife's acquired property would be a sufficient consideration 
 for an annuity to be paid to him by the wife.'^ An agreement 
 by the husband to execute a deed of separation is a good con- 
 sideration for a third party undertaking to pay the husband's 
 debts.' A covenant by the wife's trustee in a deed of separation 
 binds her as a party to it to observe the covenants entered into 
 on her behalf." 
 
 The consideration necessary to support the deed against 
 creditors will be shortly considered below.'" The consideration for 
 these agreements must not be illegal, or they will be null and 
 void ; thus, an agreement based upon a provision to facilitate 
 proceedings for a divorce would be invalid ; " or an omission of a 
 dum casta vixerit clause with the intent that the wife might be at 
 liberty to commit adultery.'^ 
 
 The payment of money by a third person to induce the parties 
 to live separate would be an illegal consideration, and the arrange- 
 ment based upon it would be futile and inoperative.'^ The 
 illegality of separation deeds is not presumed, but must be 
 proved.'" 
 
 It is quite possible, notwithstanding the validity of these deeds, 
 that one of the parties to an agreement of this kind might so 
 misconduct himself or herself that on equitable principles the 
 Court would refuse to enforce specific performance at his or her 
 instance ;'* but a mere trifling breach of a covenant by a party 
 
 424. 
 
 ^ Augier v. Augier, Prec. Ch. 496. 
 
 2 Wilson V. Wilson, 1 H. L. Cas, 538. 
 
 '^ See Elworthy v. Bird, 2 Sim. & St. 372 ; Macgregor v. Macgregor, 21 Q. B. D. 
 
 Wilson V. Wilson (ubi sup.) ; see Cfibhs v. Harding, L. R. 5 Ch. App. 336. 
 " Wilson V. Wilson {ubi sup.). ^ Gibbs v. Harding (ubi sup^. 
 
 '■ Logan v. Birlcett, I Myl. & K. 220. ^ Jones v. Waite, 9 CI. & F. loi. 
 
 9 Clark Y. Olarh, 10 P. D. 188. i" Post, p. 445. 
 
 11 Hope V. Hope, 26 L. J. Ch. 417. 
 
 12 Fearon v. Earl of AyUsford, 14 Q. B. D. 792. 
 
 1^ See Jones v. Waite {ubi sup.). ^■' Ibid. 
 
 ii5 Besant v. Wood, 12 Ch. D. 605. 
 
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CHAP. XVII.] AGEEEMENTS FOR SEPAEATION. 441 
 
 will not disentitle him to a specific performance of the deed.' 
 The Court of Probate and Divorce can under its statutory powers 
 act on equitable principles in construing or giving effect to these 
 deeds ; and if a state of facts is proved to exist which was not 
 in contemplation of the parties when the agreement was executed, 
 owing to the fault or misconduct of one of the parties (as where 
 the husband was guilty of incestuous adultery after its execution), 
 the other party is not prevented by the restraining covenants of 
 the deed to enforce the full and ample remedy to which he or she 
 is entitled f and though a deed of separation is not an agree- 
 ment that the parties to it should live apart in chastity, yet, in 
 the case of a husband, gross misconduct, that is, misconduct of a 
 nature so entirely different from that which the parties were 
 providing for when they entered into the deed of separation, 
 might prevent him from relying on the deed, and might entitle 
 the wife to disregard the bargain made between them for 
 maintenance.' 
 
 The power of the Divorce Court to alter or disregard these Power of 
 deeds depends upon whether the conduct of the one party entitles over separa- 
 the other party to a dissolution of the marriage tie, because ^'""^ 
 in the case of judicial separation " the Legislature has not 
 thought fit to give the same powers to the Court that it has 
 given in the case of dissolution of marriage. In the case of 
 dissolution of marriage the Court has had conferred upon it the 
 right to vary not only post-nuptial but ante-nuptial settlements, 
 and to deal with them in any way which may be thought just 
 and expedient. But in the case of judicial separation, there 
 being no such power, the deed remains binding. The wife is 
 entitled to the annuity secured her by the deed, the husband is 
 liable to pay the annuity. It is impossible, therefore, for the 
 Court to allot such alimony as it may think just, because in 
 the case of its thinking that the amount of alimony should be 
 less than the annuity secured by the deed, it has no power of 
 setting aside the deed, and no power to stop an action brought 
 under the covenants of the deed by the trustees against the 
 husband. It is, therefore, a case where the ordinary powers of 
 the Court cannot be exercised, except in one direction, viz., by 
 increasing the amount of alimony."^ The power of the Divorce 
 Court to make just and proper orders for alimony is contained 
 in 20 & 21 Vict. c. 85, s. 17. The effect of the law is, that 
 
 1 Sesant v. Wood {uU sup.) ; and see Crmch v. Waller, 7 W. R. 318. See also 
 Fearon v. Earl of AyUsford {uhi sup.). 
 
 2 Morrall v. 'Morralt, 6 P. D. 98. 
 ■* Oandy v. Gandy, 7 P. D. 168 ; reversing 7 P. D. 77. 
 ^ Per Jessel, M.K., in Qandy v. Oandy, 7 P. D, 168, 172. 
 
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 a 
 
442 HUSBAND AND WIPE. [part i. 
 
 where the conduct of the husband does not entitle his wife to a 
 divorce, but only to a judicial separation, the wife will be barred 
 by her trustee's agreement and contract to accept a certain sum 
 by way of alimony ; and the Court has no power to increase that 
 amount; that is, the trusts of a separation deed are not put an 
 end to a by mere judicial separation.' But where the husband's 
 misconduct amounts to a cause which would entitle the 
 wife to a dissolution, or she has by reason of such conduct 
 obtained a dissolution of marriage, the Court has more ample 
 power over the amount to be ordered as alimony, and the wife 
 in such a case will not be restrained by the covenant from asking 
 for a larger amount than that agreed to be allowed her by the 
 deed.^ 
 Arrangement A mere provision for future and prospective separation is 
 separaMonVad^ bad ; ^ and a deed has been held to be void which in terms 
 provided for an immediate separation, but which really meant to 
 provide for a future separation.^ A deed or arrangement for 
 separation must be contemporaneous with, or immediately followed 
 by actual separation, for cohabitation after its execution renders 
 it null and void.* In one case,' however, where the parties 
 were living together, a deed which contained an arrangement by 
 which the wife could live apart if circumstances should render it 
 necessary, was held valid notwithstanding such clause ; but per- 
 haps less on the ground that it was a deed providing for future 
 separation than that it was in the nature of a family arrangement 
 and the termination and compromise of a pending suit for divorce. 
 A deed providing for the wife's support on the occasion of an 
 immediate separation is good.' Where the future separation 
 is dependent on the consent or approbation of third persons, as 
 for instance, the trustees, then the deed was formerly held good ;' 
 
 1 See Jee, v. Thurlow, 2 B. & C. 547. 
 
 ^ Willdnson v. Wilkinson, 69 L. T. 459. 
 
 ^ Ooclsedge v. Coctcsedge, 5 Ha. 397 ; Hindley v. Westmeath, 6 B. & C. 200 ; 
 Westmeath v. Salishury, 5 Bli. N. R. 339. 
 
 ' Sindhy v. Westmeath {vhisup.). ^ Durant v. Titley, 7 Pri. 577. 
 
 ^ Joddrell v. Joddrell, 15 L. J. Ch. 17. A wife having instituted a suit against 
 her husband for a divorce, an arrangement was come to, and the husband executed a 
 deed, by which he assigned a house to trustees, to permit the wife to enjoy it and accom- 
 modate herself and children, and an income of ;^4000 a year was also provided for her 
 separate use to keep up the establishment for herself and children " upon such a scale 
 and regulated in such a manner as she should think fit," and the surplus was to be 
 repaid to the husband. The deed provided that, so long as the husband should be 
 desirous to reside in the house ' ' and to conform to the spirit and intention of the deed, 
 and to partake of the benefit of the establi-hment to be kept up therein by, the wife, 
 he should be at liberty so to do." The suit was discontinued, and the husband partook 
 of the benefit of the establishment. See Vandergucht v. De Blaquiire, 5 Myl. & Or. 
 229 ; reversing 7 L. J. Ch. 270. 
 
 ^ Jee v. Thurlow (ubi supM Jones v. Waite, 9 CI. & F. loi. 
 
 ^ Rodney v. Chambers, 2 East, 283. 
 
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CHAP. XVII.] AGREEMENTS FOR SEPARATION. ua 
 
 but it is more than doubtful whether such would be the case 
 now.^ 
 
 A separation deed entered into in order to determine the re- Detei-minatiou 
 lationship of the parties while living apart and separate is put an arrangement. 
 end to by reconcilement and renewed cohabitation ; ^ but the 
 reconcilement and re-cohabitation must be real, and mere dwelling 
 under the same roof, but in a state of animosity towards one 
 another, would be insufficient j' so would be mere communication 
 by letters without cohabitation.^ 
 
 The trusts of a deed of separation may take effect as being only when trusts 
 of a temporary nature during the period that the parties shall '^^P^'^'y' 
 live separate and apart, or they may take effect as a permanent 
 settlement to last during the joint lives of the parties, or during 
 the life of one of them. In the first case the trusts will be active 
 only during the suspension of the cohabitation of the husband 
 and wife ; and if the two are reconciled and resume cohabitation, 
 the whole object of the deed is gone.* In the second case, when 
 the separation deed may take the form of a permanent settlement, P**™"^"™ • 
 where other matters than the continuance of the separation is 
 provided for, or where the covenant to pay the annuity is absolute 
 and not limited only to the period of separation. " There is 
 another class of cases where the deed contains other and separate 
 provisions — a provision for an annuity during the life of the 
 wife in some cases, a particular house given up to her in others ; 
 and where there are absolute provisions of that sort the deed is a 
 perfectly valid deed, and may be enforced by either party notwith- 
 standing re - cohabitation " ;° as where a husband covenanted 
 to pay an annuity to his wife during their joint lives ;' or 
 where the husband agreed to pay the wife an annual sum while 
 she should live chctstely;^ or where the separation deed provides 
 that if the husband and wife should afterwards agree to live 
 together again, such cohabitation should in no way alter the 
 trusts of the deed ; " and such an agreement if the parties at 
 the time of entering into it were separated or intended immedi- 
 ately to separate is good and valid.'" If in such case the 
 parties re-cohabit, the trusts continue," and if they separate 
 
 •^ See Cochsedge v. Cocksedge (ubi sup.) ; Proctor v. Robinson, 14 W. R. 381. 
 
 2 Westmeath v. Westmeath, i Dow, H. L. N. S. 569 ; Besant v. Wood, 12 Ch. D. 
 605 ; Nicolv. Nicol, 31 Ch. D. 524. In the latter case the Court of Appeal ques- 
 tioned the dictum of Lord Campbell in Bandle v. Gould, 8 El. & B. 457. 
 
 ^ Bateman v. Boss, i Dow, H. L, 245. 
 
 ' Slatter v, Slatter, i Y. & C. Ex. 28 ; Frampton v. Frampton, 5 J»r. 980. 
 
 5 Negus v. Forster, 46 L. T. 675 ; Webster v. Webster, 22 L. J. Ch. 837. 
 
 * Per Coleridge, C. J., in Negus v. Forster {ubi sup.). See Dodd v. Vary, 13 
 L. .J. Ch. 103. 
 
 ' Orant v. Budd, 30 L. T. 319. 8 Xegus v. Forster {ubi sup.). 
 
 ^ Wilson V. Jfushett, 3 B. & Ad. 743. 
 10 Ibid. " See Ckarleswortli v. Bolt, L. R. 9 Ex. 38. 
 
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clause. 
 
 Hi HUSBAND AND WIFE. [part i. 
 
 again they revive in full force.' The eifect of such a covenant 
 as to pay an annuity to the wife for the joint lives of 
 herself and husband, is that it is payable to her though she has 
 committed adultery since the separation, and the marriage has 
 been dissolved in consequence -.^ and it has recently been 
 Dum casta decided that a duvi casta clause is not one of the usual covenants 
 in a deed of separation, but must be expressly stipulated for.' It 
 is a clause over which the Court of Divorce has jurisdiction in 
 allowing alimony.^ Where a husband covenanted to pay his wife 
 A I oo a year while she should live chastely, and for ten years 
 lived apart, but subsequently resumed cohabitation, but seven 
 years afterwards again separated, and the wife obtained a decree 
 of judicial separation, with alimony at the rate of £i?>0 per 
 annum, it was held that the deed was not rescinded by cohabita- 
 tion.*' Though this clause is not usually inserted in a deed of 
 separation, yet if the wife while living apart is guilty of adultery, 
 on which a successful petition for dissolution is brought by the 
 husband, the original separation may be varied by inserting this 
 clause.* Where there is no chtm casta clause, the wife can claim 
 her annuity, though she commit adultery during separation.' An 
 
 ' Negus v. Forster, 46 L. T. 675. 
 
 ^ Charlesworth v. Salt, L. E. 9 Ex, 38. In his judgment in this case, Kelly, C.B., 
 said : " The husband might, in this case, have introduced express words limiting his 
 liahility to the period during which Lucy Holt remained his wife. But there are no 
 such words, and Mr. Holker has not satisfied me that any words are used which neces- 
 sarily imply that the coTenant is only to he binding during the continuance of the 
 marriage tie. It is impossible for the Court to add such a tenn to the contract." 
 Bramwell, L.J., said (43 L. J. Ex. 28) : " Some deeds may contemplate the parties 
 coming together again ; if the husband chooses to limit the payment to the wife during 
 good behaviour, he can do so decentlj- enough by saying, ' If anything happens which 
 may cause the marriage to be dissolved,' and unless the parties themselves put into 
 their agreement some terms of this sort, we ought not to insert them without cogent 
 reasons for so doing. There are clearly none here. The woman may, on the occasion 
 when the provision was made for her, have given up considerable rights. Surely, there- 
 fore, we ought not to import such a condition as the one suggested into a deed which 
 is written in express words. But, for the defendant, it is contended that the construc- 
 tion is that the annuity is to be paid ' only so long as the marriage tie is subsisting.' 
 I think not. When a deed of this kind is executed, there is always a possibility of the 
 husband and wife coming together again, and unless a proviso is inserted that the 
 annuity shall be paid only while they are apart, it would continue even although they 
 came together again. By the terms of this covenant, Eichard Holt agrees to pay the 
 annuity ' during the joint lives of the said liichard Holt and Lucy Holt ; ' if it stopped 
 there, even although the husband and wife lived together again, he would be liable to 
 pay this annuity ; so to guard against that contingency, he adds in effect, ' but not 
 if we come together again,' which he expresses in an inaccurate way thus, ' and during 
 so long time as they shall live separate and apart.' That, I say, is inaccurate, because, 
 if the payment is to be made during the joint lives of the two, it is inevitably to be 
 paid while they live apart and while they live together. The meaning really is, ' but 
 only while they should live apart.' They have used the word ' and ' improperly, but 
 that is no qualification of the general condition, which is 'provided that if they come 
 together again he shall not pay.' " 
 
 3 Hart v. ffart, 18 Ch. D. 679. 
 
 ■* Corhett V. Corbett, 14 P. D. 736 ; Lister v. Lister, 15 P. D. 4. 
 
 ^ Negus v. Forster [ubi sup.). 
 
 ^ Saunders v. Saunders and Beck, 69 L. T. 498. 
 
 7 Sweet V." Sweet. [1895] i Q. B. 12. 
 
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CHAP, xvii.] AGREEMENTS FOR SEPARATION. 445 
 
 annuity covenanted by the husband to be paid to the wife for her 
 life, will on his death become payable by his executors.' 
 
 A wife who obtains a separation deed by concealing some Effect of fraud. 
 material fact from her husband, such as her adultery, and he in 
 ignorance executes it, is debarred from enforcing her rights 
 under it." 
 
 The mere agreement of the parties to execute a deed of separa- Validity of 
 tion and to live apart, is sufficient to render it binding on both of against'credl- 
 them, both as regards their pecuniary and social status towards o^pTOperty^"* 
 one another. But as regards creditors and purchasers," that affected by it. 
 is not so, and the deed being post-nuptial, to be effectual must 
 be supported by valuable consideration. The Court, however, 
 will not weigh the consideration in too nice scales ; the following 
 has been held sufficient : the usual indemnity against the wife's 
 debts,* an indemnity against the husband's own debts," the 
 relinquishment by the wife of her claim to alimony," and pro- 
 bably a compromise of litigated rights by the wife would be held 
 a valuable and sufficient consideration.' 
 
 An agreement by the father in a separation deed to surrender Custody of the 
 the custody of the infant children to the mother was in former 
 times invalid, and vitiated the articles of separation in toto ; for 
 it was held that he could not derogate from his own rights, and 
 for him to attempt to do so was contrary to public policy." 
 But an important alteration was effected by the Infants' Custody infante' Uus- 
 Act, 1873,' for it enacts'" that "no agreement contained in ° ^ <= , i 73 
 any separation deed made between the father and the mother of 
 an infant or infants shall be held to be invalid by reason only of 
 its providing that the father of such infant or infants shall give 
 up the custody or control thereof to the mother : Provided 
 always, that no Court shall enforce any such agreement if the 
 Court shall be of opinion that it will not be for the benefit of the 
 infant or infants to give effect thereto." The result of this is 
 that the husband can agree with his wife on separation to allow 
 her to have the care and custody of the children, and the agree- 
 
 ^ Handle v. Gould, 6 W. E. 108. Here the deed was held to be not merely a, 
 separation deed but a post-nuptial settlement. 
 
 ^ Brown v. Brown, L. K. 7 Eq. 185 ; see Evans v. Carrington, 29 L. .J. 
 Ch. 330. 
 
 ^ Fitzer v. Fitzer, 2 Atk. 511 ; Clough v. Lamhirt, 10 Sim. 174 ; Cowxy. Foster, 
 1 J. & H. 30. 
 
 ■■ Stephens v. Olive, 2 Bro. C. C. 90. 
 
 ^ Wilson V. Wilson, 1 H. L. Cas. 538. 
 
 ^ Hohbs V. Hull, I Cox, Eq. Cas. 445. 
 
 ' See Nunn v. Ladbroke, 8 T. E. 521 ; Joddrell v. Joddrell, 15 L. J. Ch. 17 ; 
 Wilson V. Wilson (ubi sup.). 
 
 * Vansittart v. Vansittart, 27 L. J. Ch. 222, 290. 
 
 " 36 Vict. c. 12. " Sect. 2. 
 
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446 
 
 HUSBAND AND WIFE. 
 
 [PAKT I. 
 
 meat can be enforced. But as the benefit of the infant child is ever 
 the chief concern of the Court, if it subsequently becomes evident 
 that the custody of the mother would be harmful to the infant, 
 the father may apply to the Court to rescind the agreement and 
 recover its custody.' Every such agreement in a separation 
 deed is therefore accompanied by a proviso that the Court 
 shall not enforce the agreement as regards the children unless 
 it be to their advantage.^ This subject of the custody and 
 control of children is further pursued in another portion of this 
 book.^ 
 Dissolution of If, however, the parties are unable or unwilling to settle their 
 judicial aepara- matrimonial differences in private by means of a separation deed, 
 *'""■ they may have recourse to the Divorce Court for relief. It is not 
 
 Jurisdioticn of here intended to discuss the powers and jurisdiction of the Court 
 Court. of Divorce, but to give a mere outline of the subject. Prior to 
 
 the year 1858 the ecclesiastical Courts had no power to divorce 
 a vinculo rnatrim.onii^ or dissolve the union of married persons ; 
 • that jurisdiction was confined to decrees or orders of divorce a 
 mensA et thoTO, or judicial separation, by which those who were 
 united in the bonds of marriage were enabled for specified causes 
 to live apart, and not compelled to cohabit, and to sentences 
 of nullity. It seems too strong an expression to say that before 
 that year marriage in England was indissoluble ; the case rather 
 was, that there were no means in existence by which the Courts 
 were able to separate for all purposes those lawfully joined in 
 matrimony. But in order to meet the exigencies of difierent 
 cases, especially in cases where by the adultery of the wife bastard 
 issue might be fathered on the husband, ^rmZe^w, or private relief 
 Acts of Parliament were from time to time passed which operated 
 to dissolve the tie, and enabled either party to remarry during the 
 life of the other. ^ The powers of the old ecclesiastical Courts 
 and further and wider powers were conferred upon the Divorce 
 Court by the Acts of 1857° and 1858;° this Court now forms a 
 branch of the Probate, Divorce, and Admiralty Division of the 
 High Court of Justice. 
 
 If the Court is satisfied that there are sufficient grounds for 
 pronouncing a decree of dissolution, it will grant the prayer of 
 the petitioner. The grounds for relief in a petition for dissolu- 
 tion of marriage are, where the husband is petitioner, the adul- 
 
 1 He Besant, 11 Ch. D. 508. ^ He Besant (uhi sup.). 
 
 " Seepost, Part II., Parent and Child, cliap. ii. 
 
 ■* The Acts were usually intituled as follows : — " An Act to dissolve the marriage 
 of A. B. with C. D., and to enable him to marry again." In the recitals of the Act 
 the decree of judicial separation (if any) of the ecclesiastical Court was mentioned ; but 
 such decree was not a condition precedent to the passing of the Act. 
 
 Grounds for 
 relief In 
 divorce a 
 
 viiiculu 
 mafHmoidi. 
 
 20 & 21 Vict. c. 85. 
 
 21 & 22 Vict. c. :o8. 
 
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CHAP. xvii.J AGREEMENTS FOR SEPARATION. 447 
 
 tery of the wife ; ^ where the wife is petitioner, on the part of 
 the husband, incestuous adultery, bigamy with adultery,^ sodomy, 
 bestiality, or adultery coupled with such cruelty (which need not 
 be necessarily physical violence)^ as without adultery would have 
 entitled her to a divorce a mensd et thoro, or adultery coupled with 
 desertion without reasonable excuse for two years or upwards.'' The 
 effect of a sentence of dissolution of marriage is that the parties 
 are no longer husband and wife, and are strangers to one another 
 as regards person and property,^ save so far as the statutory 
 jurisdiction of the Court enables it to alter and vary the settle- 
 ments whether ante-nuptial or post-nuptial," including a separa- 
 tion deed,'' and whether there are children or not.' The parties 
 are also enabled to remarry. The decree absolute for the dissolu- 
 of the marriage must be made before either of the spouses dies ; 
 if not so made the parties die husband and wife.' 
 
 There are two classes of defences to a suit for dissolution of Defences in 
 marriage. Absolute bars, such as denial of the facts alleged in '^^° "*'°°' 
 the petition, connivance, condonation,'" and collusion ; these are 
 facta which, if proved to the satisfaction of the Courb, are a com- 
 plete answer to the petition, and leave the Court no discretion 
 but to dismiss it. Discretionary bars, or facts which if proved 
 leave to the Court a discretion as to the decree, such as adultery 
 of the petitioner," unreasonable delay in presenting or prosecuting 
 the petition, cruelty, desertion, or wilful separation from the other 
 party before the alleged adultery without reasonable excuse, and 
 such wilful neglect or misconduct as has conduced to the adultery 
 complained of. 
 
 The husband and wife may also obtain a sentence of judicial Judicial 
 separation, or divorce a mensd et thoro from each other for ^®p*'*''°°- 
 various grounds.'" The principle upon which each of these Grounds for 
 grounds rests is that it must be such as per quod consortmm 
 aniittitur ; thus, the husband may obtain a sentence by reason of 
 his wife's adultery, or desertion without cause for two years and 
 upwards ; and the wife may obtain a sentence by reason of her 
 
 1 20 & 21 Vict. c. 85, s. 27. 
 
 '' The adultery must be substantially proved ; mere evidence of a bigamous marriage 
 does not satisfy tbe requirements of the statute ; JEJllam v. Ellam, 58 L. J. P. 56. 
 
 3 Bethune v. Bethune, 63 L. T. 259 ; Walmesley v. WalmesUy, 69 L. T. 152. See 
 Eusseli V. BusseU, [1895] P. 315, 322, for a definition of cruelty. 
 
 * 20 & 21 Vict. c. 85, s. 27. 
 
 ^ Be Morrieson, JEitchins v. Morrteson, 40 Ch. I). 30, in which Bullmore v. 
 Wynter, 22 Ch. D. 619, was observed upon. 
 
 8 20 & 21 Vict. c. 85, s. 45 ; 22 & 23 Vict. c. 61, s. 5. 
 
 7 Worsley v. Worsley, L. E. I P. & t). 648. 
 
 8 41 Vict. i;. 19, 6. 3. 
 
 ^ Stanhope v. Stanhope, ii P. D. 103. 
 
 ^^ See Bernstein v. Bernstein (No. 2), [1893] P. 292. 
 
 " See Whitwwth v. Whitworth, [1893] P. 85 ; Potter v. Potter, 67 L. T. 721. 
 
 12 20 & zi Vict. c. 85, SB. 7, 16. 
 
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i48 
 
 HUSBAND AND WIFE. 
 
 [part I. 
 
 Difference be- 
 tween divorce 
 and judicial 
 separation. 
 
 ■Jactitation of 
 marriage. 
 
 Defences. 
 
 Summary 
 Jurisdiction 
 (Married 
 Women) Act, 
 1895. 
 
 husband's adultery, cruelty, and sodomitical practices. If a hus- 
 band is convicted summarily or on indictment of an aggravated 
 assault on his wife the Court before which he is convicted can 
 order what is practically a judicial separation between them." 
 The defences to a suit for judicial separation are practically the 
 same as those in suits for dissolution of marriage. The conse- 
 quences of this sentence are not so wide as those of a dissolution 
 of marriage ; the parties are still husband and wife, they are not 
 free to re-marry, and they may come together and live as hus- 
 band and wife again without going through any ceremony of re- 
 marriage. The Court itself has not the same power of dealing 
 with settlements on a sentence of judicial separation as on one of 
 dissolution of marriage.^ 
 
 The effect of dissolution of marriage and judicial separation 
 on the property rights of the spouses has been discussed under 
 various headings. 
 
 One method of obtaining a decision that two people are not 
 married to each other is by bringing a suit for jactitation of 
 marriage. This is brought, where one party maliciously boasts or 
 gives out (jactitatio) that he or she is married to the other, in 
 order to prevent a common reputation of their marriage from 
 ensuing. Unless the defendant makes out a proof of the actual 
 marriage, he or she is enjoined perpetual silence on that head.^ 
 Before Lord Hardwicke's Act,'' this suit was frequently brought 
 owing to the great facilities for clandestine and irregular mar- 
 riages. But of late years it has very rarely been resorted to. 
 In this suit there are three defences : (i) Denial of the boasting ; 
 (2) the truth of the representations; (3) full authorization of the 
 pretension by the complainant, though no marriage ever took 
 place ; that is, the representation, though false, is not malicious.* 
 This last defence is based on the principle that a complainant 
 who has for some time authorized the respondent to make 
 representations such as those afterwards complained of does 
 not come into Court with clean hands to seek relief ex dehito 
 justitice.^ 
 
 Under the Summary Jurisdiction (Married Women) Act, 1895,' 
 a married woman whose husband has been convicted summarily 
 of an aggravated assault, or on indictment of an assault upon her, 
 and sentenced to pay a fine of more than ;^ 5 or to a term of impri- 
 sonment exceeding two months, or who has deserted her, or has 
 
 See below. 
 
 ' 58 & 59 Vict. 0. 39, 8. 4, repealing 41 Vict. c. 19, s. 4. 
 2 Qandy w.Gandy, 7 P. D. 168. » 3 Bl. Com. 93, 
 
 26 Geo. III. c. 33. ^ Hawhe v. Corri, 2 Hag. Con. R. 280. 
 
 8 Thompson V. Bourhe, [1893] P. 70. 
 ' 58 & 59 Vict. 0. 39, repealiiii; (sect. 12) 41 Vict. c. 19, s. 4 ; and 49 & 50 Vict. c. 52. 
 
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CHAP. XVII.] AGREEMENTS FOR SEPARATION. 449 
 
 been guilty of persistent cruelty to her, or has wilfully neglected 
 to provide reasonable maintenance for her or her infant children, 
 whom he is legally liable to maintain, and has by such cruelty or 
 neglect caused her to leave and live separately and apart from 
 him, may obtain more speedy relief than by petition for judicial 
 separation in the Divorce Court from the Court of Summary 
 Jurisdiction for the district in which the husband has been con- 
 victed or the cause of complaint has wholly or partially arisen.' 
 The orders which a Court of Sammary Jurisdiction can make may 
 contain all or any of the following provisions : (a) That the applicant Judicial 
 be no longer bound to cohabit with her husband (this provision ^^P^^^'O''; 
 is to have the effect in all respects of a decree of judicial separa- 
 tion on the ground of cruelty) ; (i) that the legal custody of any custody of the 
 children of the marriage while under sixteen years of age be com- " ' "^^"^ ' 
 mitted to the applicant ; (c) that the husband shall pay to the weekly- 
 applicant personally, or, for her use, to any oflBcer of the Court, or * ™°"y' 
 third person on her behalf, a weekly sum not exceeding £2, 
 which the Court shall consider reasonable, having regard to the 
 means of both husband and wife ; (d) the payment by the appli- costs. 
 cant or the husband, or both, of the costs of Court, and such 
 reasonable costs of either of the parties as the Court may think fit.'^ 
 As this Act repeals the Act of 1886, the recent cases under the 
 earlier Act will be set out. The Act is retrospective, therefore a 
 married woman deserted by her husband before it came into force 
 may obtain relief under it ; ' for it was passed to cure an existing 
 €vil, and to give the parties injured a new remedy, and it is imma- 
 terial whether the injury arose before or after the Act was passed.* 
 
 Desertion implies that the parties are living together what is 
 at the time when desertion takes place,^ and there must be a '^^^«'^*i<'°- 
 deliberate purpose of abandoning the conjugal society;" therefore, 
 if husband and wife live apart under a deed under which neither 
 party is to require or attempt to compel the other to live 
 together or cohabit or take any proceedings for the restitution of 
 conjugal rights, he agreeing to pay hor a weekly allowance which 
 
 1 Sect. 4. See Bea. v. Leresche, 56 L. J. M. C. 158. The Court of Quarter 
 Sessions or the Assize Court before which the husband is convicted becomes a Court of 
 Summary Jurisdiction for the purposes of this section. Sect. 8 proyides that all appli- 
 cations under this Act shall be made in accordance with the Summary Jurisdiction 
 Act, and in case of the conviction of husband for aggravated assault upon his wife, 
 her application may, by leave of the Court, be made by summons, to be issued and made 
 returnable immediately upon such- conviction. How this procedure will be carried out 
 in cases of conviction for assault on indictment (see sect. 4) does not appear very clear. 
 
 ^ Sect. 5. Under the repealed Act of 1878 unless the justices made an order on 
 4he husband for payment of an allowance to his wife at the time of his conviction she 
 could not afterwards apply for it ( Woodhead v. Woodhead, [1895] P- 343-) 
 
 3 Beg. T. BirtwMstle and Others, 58 L. J. M. 0. 158. * Ibid. 
 
 = Fitzgerald v. Fitzgerald, L. R. i P. & D. 694. 
 
 * Beg. V. Leresche, [1891] 2 Q. B. 418. 
 
 2 F 
 
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450 HUSBAND AND WIFE. [part i. 
 
 he fails to keep up, the wife has no remedy against him under 
 this Act ; ' and so where husband and wife are living apart 
 under a separation deed, and the husband refuses to resume 
 cohabitation .° But where the husband is under an order obtained 
 by guardians to pay a weekly allowance in respect of the charge- 
 ability of his wife to their union, and she comes out of the 
 workhouse and he does not make a hond fide offer to resume 
 cohabitation, she is entitled to an order under this Act ; ^ and 
 where she leaves her husband for a temporary purpose and for 
 their mutual convenience, cohabitation does not .thereby cease, 
 and if her husband afterwards refuse to take her back or maintain 
 her, he may be guilty of desertion within the meaning of the 
 Act/ It would seem, too, that where a husband had already 
 deserted his wife and they afterwards agreed by separation deed 
 to live apart, but the wife did not condone her husband's past 
 marital offences, and did not covenant not to sue him, she might 
 be entitled to an order under the Act.^ She is certainly entitled 
 to a decree for judicial separation, if her husband petitions for a 
 dissolution of marriage on the ground of her adultery and fails, 
 and in the suit she prays for judicial separation on the ground 
 of his desertion without a cause." 
 Adultery of The adultery of the wife will disentitle her to any such order 
 
 her to relief, uuless the husband has condoned, or connived at, or by his wilful 
 Variation or neglect Or misconduct, conduced to the adultery.' A Court of 
 orders. Summary Jurisdiction of the district in which any order under 
 
 this Act (also any order that may have been made under the 
 Matrimonial Causes Act, 1878, and the Married Women (Main- 
 tenance in case of Desertion) Actj 1886), may, on the application 
 of either the wife or husband on satisfactory fresh evidence, at 
 any time alter, vary, or discharge such order, and may increase or 
 diminish the amount of any weekly payment, so that it does 
 not exceed in any case £2.^ The Court may also discharge any 
 such order if the wife has subsequently resumed cohabitation or 
 has committed adultery." 
 
 The power of the justices to rehear a summons under the Act 
 of 1886 at the instance of the husband was held to be limited to 
 an application on his part to show that his means had been altered 
 in amount since the making of the original order for the purpose 
 of varying the order.'" But under the present Act there does not 
 appear to be any such limitation to the husband's right of applica- 
 
 ^ Pape V. Pape, 20 Q. B. D. 76. ^ Reg v. Leresche, [1891] 2 Q. B. 418. 
 
 ^ Kershaw v. Kershaw, 51 J. P. 646. * Ohudley v. Ohvdley, 59 L. T. 617. 
 
 ^ See Moore v. Moore, 12 P. D. 193. 
 
 6 Jhid. ^ Sect. 6. s Sect. 7. ^ Ibid. 
 
 i" Sephton v. Sephton, 58 L. T. 281. 
 
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CHAP. XVII.] AGEEEMENTS FOR SEPARATION. 451 
 
 tion. But if ho suggests adultery at the original hearing and is 
 offered an adjournment for the purpose of proving it, but he declines 
 and allows the case to go on, he cannot afterwards apply for a re- 
 hearing on that ground.' 
 
 A Court of Summary Jurisdiction would now seem to possess 
 the power of altering, varying, or discharging any such order 
 which has been made by the Court of Quarter Sessions or by a judge 
 of assize.^ The justices may refuse to make any such order, and 
 leave the parties to go to the High Court if the matters in ques- 
 tion between the parties could be more conveniently dealt with 
 by the superior Oourt.^ But the High Court may direct the Court 
 of Summary Jurisdiction to rehear and determine the application.'' 
 Appeals from the order or refusal to make an order by a Court of Appeals. 
 Summary Jurisdiction under this Act lies to the Probate, Divorce, 
 and Admiralty Division of the High Court.* 
 
 In order to put a stop to proceedings that amounted to a Restitution of 
 scandal, a short but important Act was passed in the year i884,''right's^* 
 to effect an alteration in the law relating to the restitution of ^at"™oj"a,i 
 conjugal rights. A decree for restitution is no longer enforceable 1878. 
 by attachment ; ' but failure to comply with the decree shall be ^'^g^™^''' 
 deemed desertion without reasonable cause, entitling the petitioner 
 to bring forthwith a suit for judicial separation.^ Intentional 
 disobedience of the decree is desertion within the meaning of the 
 Act." Conduct on the part of one of the spouses which may not 
 amount to matrimonial misconduct entitling him or her to a 
 judicial separation may, on the other hand, disentitle him or her 
 to a decree for restitution of conjugal rights." The Court has 
 power to order the husband to make his wife periodical payments 
 in the nature of alimony ; " and where the wife is in fault to 
 order a settlement to be made of her property for the benefit 
 of the husband and children, or either of them ;'^ and the Court 
 in ordering a settlement of the property of one party for the benefit 
 of the other may in its discretion take into account the general 
 conduct of the parties;'^ but the Court in making a settlement out 
 of the wife's property has no power to order a settlement of 
 her property which is subject to a restraint against anticipa- 
 tion.'' 
 
 The Court has power before or after final decree to make orders Custody, &o., 
 as to custody, maintenance, and education of the children, as 
 
 1 Beg. v. Justices of Oldham, 51 J. P. 647. ^ Sect. 7. ^ Sect. 10. 
 
 * Ibid. * Sect. II. ^ 47 & 48 Vict. 68 (Matrimooial Causes Act, 1884). 
 
 ' Sect. I. 8 Sect. 5. ^ Harding v. Harding, 11 P. D. iii. 
 
 11 Eussell T. Russell, [1895] P. 315. " See Theobald v. Theobald, 15 P. D. 26. 
 
 12 Sect. 3. 13 /Swift V. Swift, [1891] P. IZ9. 
 " MitcMl V. Mitchell, [1891] P. 208. 
 
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452 HUSBAND AND WIFE. [pakt i. 
 
 though the proceedings were for judicial separation.' The Act is 
 retrospective in its operation.^ 
 
 Eight of di- There seems to be some doubt prevailing on the question 
 
 vorced woman ■■ , . -, f o i _ 
 
 to retain her whether a married woman on dissolution of her marriage is en- 
 name. yj^jg^ ^ retain the name of her husband, with the description 
 of " Mrs." before it. It has been held' that she is entitled to 
 retain it ; and on this ground, that marriage confers a name upon 
 a woman which becomes her actual name, and she can only obtaiu 
 another by reputation. There is no power in the Courts to compel 
 her to take another name, even if she has been divorced by reason 
 of her misconduct ; a choice of names by which to be known is 
 free and unlimited to all persons (save for purposes of fraud) ; and 
 as she cannot be compelled to take another name, so she cannot 
 be compelled to give up that name which she has lawfully 
 acquired by the fact of marriage as well as by reputation. From 
 this it follows, that a woman on dissolution of her marriage may 
 continue to style herself by her married name, or may revert to 
 her maiden name, or may seek by reputation to gain an altogether 
 new name. 
 
 1 Sect. 6. 2 Weldon v. Weldon, 54 L, J. P. D. & A. 60. 
 
 ' Fendall v. OoMsmith, 2 P. D. 263. 
 
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CHAPTER XVIII. 
 
 INTERNATIONAL ASPECT OF MARRIAGE AND DIVORCE. 
 
 MAEEIAGE : PAGE 
 
 DoMiciL, Definition op 454 
 
 DoMiciL OF Husband the Mateimonial Domicil . 456 
 
 Lex Loci Celbbeationis Goveens Foemalitibs of 
 
 Maeeiagb 457 
 
 Lex Domicilii Goveens the Capacities of Paeties , 461 
 
 Maeeiage Invalid by Lex Loci Celebeationjs 
 
 Invalid Eveetwhbeb 462 
 
 Exceptions -. 462 
 
 DiVOECB : 
 
 Validity of, Depends on Lex Domicilii of Paeties. 464 
 How Fae English Goitets Recognize Validity of 
 
 FOEEIGN DiVOECBS 465 
 
 Maeeiagb in England 466 
 
 "English Maeeiage" 466 
 
 Husband's Domicil must be Genuine .... 468 
 "English Maeeiage" Dissolved in Husband's New 
 
 Domicil 469 
 
 Maeeiage of Domiciled English Dissolved by Foeeign 
 
 Teibunal 470 
 
 Theoey of the Lex Poei 471 
 
 Niboyet v. Niboybt 471 
 
 Indian Divoeces of Beitish Subjects .... 473 
 
 It would seem almost out of place to introduce into a work of introduction. 
 
 this description a chapter which deals with international law ; 
 
 but when it is remembered how easy is modern intercourse 
 
 between members of different nationalities, how liable they are 
 
 to be afEected by such intercommunion, how the laws dealing 
 
 with the same subjects in various countries differ and conflict, 
 
 and how knowledge of discrepancies may tend to remove them, 
 
 then the importance of these considerations is a sufficient reason 
 
 for their discussion. 
 
 Owing to the isolated position of England, the study of inter- 
 national law was not forced upon her jurists ; and from the 
 sixteenth down to the beginning of the present century it was a 
 domain of jurisprudence almost unknown. Nor is it altogether 
 
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454 
 
 HUSBAND AND WIFE. 
 
 [past I. 
 
 to be wondered at, for she was not bordered by various nations 
 having each their own peculiar and probably conflicting laws, 
 like the different continental countries, or the separate sovereign 
 communities constituting the United States of America ; neither 
 was there that intercommunion of the people in the way of com- 
 mercial contracts or matrimonial alliances which would give rise 
 to doubts as to the laws of which country should govern the 
 transactions, and the explication of which would be most neces- 
 sary. Though this chapter will deal with matrimonial questions 
 from an international aspect^ it will not deal with mere abstract 
 propositions, but practically discuss the international validity of 
 marriage and divorce. 
 
 The chapter will be divided into two sections : (i) the inter- 
 national aspect of marriage ; (ii) the international aspect of 
 divorce. 
 
 Section i. 
 Marriage. 
 
 Marriage, jj would be impossible to treat of this question without first 
 
 inquiring shortly into the nature of the most important factor 
 which regulates the positipn of the spouses to each other both as 
 regards the inception, maintenance, and dissolution of the mar- 
 riage tie, namely, domicil. The parties must have a domicil 
 somewhere or another, and it often becomes necessary to inquire 
 by the laws of what place the true position of the parties to 
 each other in the multifarious relations of married life is to be 
 regulated' and governed. It is obvious that domicil must be an 
 essential consideration in treating of the international aspect 
 of marriage. 
 
 Domicil. Domicil has never been satisfactorily defined, and it may be 
 
 that, owing to the complexity of ideas involved in it, it never 
 will be. It is an amalgamation or combination of the fact 
 of residence, and an animus or intention of remaining for an 
 indefinite or unlimited time in a particular place ; and unless 
 both these elements are present, there is no domicil in the legal 
 and technical sense, though the particular residence of the indi- 
 vidual might popularly and accurately enough be described as 
 his " home." The residence in the chosen place must be based 
 upon the intention to remain there for an indefinite period.' 
 
 ^ Vdny V. Vdny, L. R. i So. App. 441. "Domicil of choice is a conclusion or 
 inference which the law derives from the fact of a man fixing voluntarily his sole or 
 chief residence in a particular place, with an intention of continuing to reside there for 
 an unlimited time." Per Lord AVesthury, p. 458. 
 
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CHAP. XVIII.] MARRIAGE AND DIVORCE.' 455 
 
 Added to these two ideas there is a possible third — an animus 
 relinquendi, or intention to abandon a former domicil, whether of 
 origin or of choice. Domicil is established not by naked asser- 
 tion but by deeds and acts.^ It will suffice to give a few of 
 the leading definitions of this subject, which more or less include 
 the above constituents essential to an accurate description of the 
 idea. 
 
 Story ^ defines domicil as " that place in which a person's story. 
 habitation is fixed, without any present intention of removing 
 therefrom." 
 
 Phillimore:' "A residence at a particalar place, accompanied Phiiiimora. 
 with positive or presumptive proof of an intention to remain there 
 for an unlimited time." 
 
 Vice-Ohancellor Kindersley i** "That place is properly the Kindersiey, 
 domicil of a person in which he has voluntarily fixed the habita- 
 tion of himself and his family, not for a mere special and tem- 
 porary purpose, but with a present intention of making it his 
 permanent home, unless and until something (which is unexpected 
 or uncertain) shall occur to induce him to adopt some other perma- 
 nent home." 
 
 Dicey :* " The place or country either (i) in which a person in Dicey, 
 fact resides with the intention of residence ; or (ii) in which 
 having so resided he continues actually to reside, though no 
 longer retaining the intention of residence (animus manendi) ; or 
 (iii) with regard to which, having so resided there, he retains the 
 intention of residence (animus manendi), though in fact he no 
 longer resides there." 
 
 Strictly speaking, there are but two kinds of domicil : 
 (i) domicil of choice ; (2) domicil not of choice, which includes 
 {a) birth domicil (domicilium originis), and (h) domicil by opera- 
 tion of law. 
 
 It is to the domicil of choice, or that acquired propria marte, Domioii of 
 that the above definitions and remarks apply. The domicil of 
 birth (domicilium originis) is imposed upon a person who has not 
 acquired another for the purpose of assigning him some law by 
 which his personal status or property shall be governed. This 
 domicil easily reverts, and the presumption of law is against the 
 intention to abandon it,* But in order to lose the domicil of 
 choice and revive the domicil of origin, it is not sufficient for the 
 person to form the intention of leaving the domicil of choice, but 
 
 1 Per Sir B. Peacock in M'Mullen v. Wadsuiorth, 11 App. Oas. 631. 
 
 2 Conflict of Laws, e. 43. ^ Law of Domioii, 13. 
 
 * In Lord v. Oolvin, 28 L. J. Ch. 361, 366. ' Law of Domicil, 44. 
 
 * Bempde v. Johnstone, 3 Ves. 190 ; Hodgson v. De Seaiichesne, 12 Moo. 
 P. C. 285. 
 
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456 
 
 HUSBAND AND WIPE. 
 
 [part r. 
 
 Domicil by 
 operation of 
 law. 
 
 Domicil of 
 husband the 
 true matri- 
 monial 
 domicil. 
 
 he must actually leave it with the intention of leaving it perma- 
 nently.' 
 
 The domicil by operation of law is imposed on those who are 
 not sui juris, but are dependent upon others — thus a wife takes 
 the domicil of her husband ; a legitimate infant,^ born in the 
 father's lifetime, that of his father ; a posthumous^ or illegiti- 
 mate* infant, that of his mother. Domicil, whether of birth or 
 of choice, must be gathered from a person's surroundings, and is 
 to be ascertained either by presumptions of law, or by the known 
 facts of the case, which must be tested by the ordinary rules of 
 evidence. The actual residence in any one place is a physical 
 fact of easy proof, but the difficulty arises in balancing nicely 
 conflicting points of evidence adduced to show that the animits 
 manendi was directed to one spot in preference to another ; or, 
 in other words, that the animus relinquendi was or was not com- 
 plete as to a particular place. ^ Domicil may be proved by the 
 statements of a person," by his acts,^ and by the presumption that 
 a domicil once obtained continues,^ and that it is there where a 
 man's wife and family are.^ 
 
 The true seat of the matrimonial relations is undoubtedly the 
 domicil of the husband, because it is the place of the perform- 
 ance of the duties arising from the marriage.'" It is to the 
 abode of the husband that both parties look when entering into 
 this contract; and both may be taken to be willing to bring 
 themselves under the laws and customs which there obtain. By 
 the laws of all civilised nations the husband takes the lead in 
 married life, and to his rule the wife and the family are sub- 
 jected ; he has the power to alter his place of residence, and 
 make choice of the spot -where their fixed abode shall be. As a 
 necessary consequence of this, if the husband should change his 
 domicil during coverture, that of the wife will change also ; " 
 and the conjugal rights as to movable property will vary, though 
 as to immovable or real property the lex situs prevails. This 
 view as to property rights is held by the English law. This, how- 
 ever, is not the view of the eminent German jurist, Savigny,'^ 
 
 1 Me Marrett, Chalmers v. Wingfield, 36 Cli. D. 400. See Sell v. Kennedy, L.E. 
 I H. L. (Sc.) 307 ; Me Patience, Patience v. Main, 29 Cb. D. 976. 
 
 2 Udny T. Udny {ubi sup.). 
 
 * Westlake, Priv. Int. Law, s, 35 (istedit.). The Yeans, 8 Cv. 253. 
 
 ^ Me Wright's Trusts, 25 L. J. Oh. 621. ^ Me Stern, 28 L. J. Ex. 22. 
 
 1 Brodie v. Brodie, 30 L. J. P. M. & A. 185. 
 
 ' Dov.cet V. Geoghegan, 9 Oh. D. 441. » Croohenden v. Fuller, i Sw. & Tr. 441. 
 
 9 Piatt V. Att.-Gen., 3 App. Cas. 336. 
 " Saviguy, PriT. Int. Law, s. 379, pp. 240, 241. 
 
 " Warrender v. Warrender, 2 CI. & F. 488 ; Me Daly's Settlements, 27 L. J. Ch. 
 751 ; Telverton v. Yelverton, 29 L. J. P. M. & A. 34. 
 
 1- Pviv. Int. Law. =. 379, p. 243. Pie says this is the law of Prussia, Allg. Landrecht, 
 ii. I, ss. 350-355. 
 
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CHAP. XVIII.] MAERIAGE AND DIVORCE. 457 
 
 who holds that the conjugal rights of the spouses should be 
 immutably settled according to the local law of the earliest 
 domicil ; and this on the ground that the wife tacitly contracted 
 to be bound by the law of her new domicil ; and that it might 
 put into the hands of the husband an unfair and one-sided power 
 to effect a change detrimental to the interests of his wife ; and 
 the result might be the same, though the change on the part of 
 the husband were involuntary. A third and intermediate view 
 is that the law of the earliest domicil always affects the pro- 
 perty acquired at the time of the marriage, and that only future 
 acquisitions should be affected by the law of the new domicil. 
 A widow retains her husband's last domicil until she acquires a 
 new one for herself. 
 
 It would be quite beyond the scope of this work, even if it 
 would be usefulj to investigate the distinction which formerly 
 existed between real and personal statutes y ' and how the one 
 class governed those affected by them only in the particular 
 territories in which they obtained, while the other was impressed 
 as a personal quality inherent in the individual affected, and was 
 carried with him even beyond the limits of his domicil. It is 
 enough to say that a person's status and capacity were to be 
 regulated not only at home, but abroad, by the law of his domi- 
 cil. Hdbilis et inhdbilis in loco domicilii est kahilis vel inhabilis 
 in omni loco} This strict rule was applied equally to real as well 
 as to personal property ; and the inconveniences and difficulties 
 attending its application compelled the jurists who approved 
 of it to make certain exceptions which nullified its full effect. 
 The Code Napoleon in its third article adopts this principle in 
 the case of French citizens.^ 
 
 There are two laws which can govern a matrimonial contract ; Marriage con- 
 one, that of the domicil of the parties ; the other, that of the bywhaUaw^f 
 place in which the marriage is celebrated. 
 
 There is good authority for saying that formerly the theory of Lex lod ceu. 
 the English law on this point was, that a marriage valid by the govern/ the 
 lex loci co7itrccctus, or celebrationis, was valid everywhere,^ unless formalities 
 
 _ '_ \ . °' marriage ; 
 
 there was a positive enactment binding on the English Courts, 
 
 ^ The best distinction between these statutes is the one which Merlin has drawn, to 
 the effect that the laws which regulate the condition, capacity orjncapacity of persons are 
 personal statutes ; while those that regulate the quality, transmission, and disposition 
 of real property are real statutes. — Repertoire de Jurisprudence, tit. Autorisation 
 Maritale, s. lo. 
 
 2 BouUenois' rule adopted by Bouhier. Coutumes de Burgogne, ch. xxiii. ss. 91- 
 96, p. 461, cited in Story's Conflict of Law, s. 51 a. 
 
 ^ "Les lois concemantl'etat et la capacity des personnes r^giesent les franyais, 
 meme residant en pays Stranger." Art. 3. 
 
 ■* Scrimshire v. acrimshire, 2 Hag. Con. Rep. 412 ; Simonin v. MaiUao, 29 L. J. 
 P. M. & A. 97. 
 
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458 HUSBAND AND WIPE. [pakt i. 
 
 and preventing them from recognizing certain marriages as good 
 
 and valid. According to a modern decision/ the principle is as 
 
 the lex domi- foUows : — the lex loci celebrationis is to govern and decide all 
 
 cilu governs i.* i j.* i 
 
 the capacity questions relating to the validity of the ceremony by which the 
 of the parties, marriage is constituted. The lex domicilii, on the other hand, is 
 to decide the question of the capacity of the parties for contract- 
 ing a valid marriage ; with this result, that if both parties are 
 domiciled in a country the laws of which prevent their marrying, 
 and though validly married according to the lex loci celebrationis, 
 both as regards forms and capacity, then their marriage is to be 
 null and void. "Upon this point of principle how does the 
 matter stand ? Let it be granted (and I think it is well settled) 
 that the general rule internationally recognized as to the consti- 
 tution of marriage is that when there is no personal incapacity 
 attaching upon either party, or upon the particular party who is 
 to be regarded, by the law to which he is personally subject, that 
 is, the law of his own country, then marriage is held to be con- 
 stituted everywhere, if it is well constituted secundum legem loci 
 contractus. But that merely determines what in all these cases 
 is the point you start from. When a marriage has been duly 
 solemnized according to the law of the place of solemnization, the 
 parties become husband and wife."^ But where the wife is a 
 domiciled English subject, then the above rule may possibly not 
 be strictly applied.^ 
 
 The case of where both parties are foreigners, but married in 
 England, and one of them is domiciled in a country the laws of 
 which permit of their intermarrying, and the other is domiciled 
 in a country the laws of which render them incapacitated from 
 intermarrying, does not seem to be provided for.* 
 Lex loci ceu- Which law, that of the domicH, or that of the place of cele- 
 generaiiyto bration, do the principles of international jurisprudence require 
 prevail. should prevail and govern the contract ? Clearly the lex loci 
 
 celebrationis. A marriage valid by the law of the place where it 
 is celebrated ought to be valid everywhere is an axiom of inter- 
 national law. Marriage may truly be said to be a matter juris 
 gentium from its universality, for every civilized nation recognizes 
 
 1 Sottomayor v. De Barros, 3 P. D. i. 
 
 ^ Per Selborne, L.C., in Harvey v. Farnie, 8 App. Cas. 43, 50. 
 
 2 Sottomayor v. De Barros (uhi swp.), sed qiwsre. 
 
 * Ibid. Take the case of a domiciled American subject and a domiciled Portuguese 
 subject, properly intermarrying in London according to the laws of England ; they are 
 first cousins. By his State law he may marry his first cousin ; by the law of Portugal, 
 a Portuguese subject may not marry a first cousin without first obtaining the Papal 
 dispensation ; this dispensation is not obtained. The validity of this marriage is 
 litigated in the English Courts ; to the law of which party must the English Courts 
 pay deference? See remarks of Creeswell, J., in Simonin v. Maillac, 29 L. J. P. M. 
 & A. 97. 
 
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CHAP, xvm.] MAEEIAGE AND DIVORCE. -ISO 
 
 the institution, and the status created by it ; and when properly 
 constituted ought to be universally recognized. This is the 
 undoubted view held by the American jurists ; ' and is the 
 earlier and sounder view of the English Courts. The English 
 law regarded the pretensions of the lex loci celebrationis to govern 
 the marriage if celebrated in conformity with its provisions, and 
 this even where the parties had recourse to a foreign country to 
 avoid disabilities in their own.^ Another reason for preferring 
 the law of the place of celebration rather than that of the 
 domicil is, that it may frequently be most difficult to ascertain or 
 determine a person's domicil. A third is the difficulty of being 
 able to give effect to the validity of a contract, if the capacity of 
 a contracting party depended upon the law of his domicil.' A 
 fourth reason is, that though an independent State may impose 
 restrictions upon its citizens" either within or without its own 
 territories, it has no right to call upon another independent State 
 to give effect to such restrictions, which would amount to a 
 virtual surrender of its independence and supremacy within its 
 own borders.^ " A contract, valid by the law of the place where 
 it is made is, generally speaking, valid everywhere Jure gentium 
 and by tacit assent. The lejc loci contractits controls the nature, 
 construction, and validity of the contract; and on this broad 
 foundation the law of contracts, founded on necessity and com- 
 mercial convenience, is said to have been generally established. 
 If the rule were otherwise, the citizens of one country could not 
 safely contract or carry on commerce in the territories of another. 
 The necessary intercourse of mankind requires that the acts of 
 parties, valid where made, shall be recognized in other countries, 
 provided they be not contrary to good morals, nor repugnant to 
 the policy and positive institutions of the State."" This rule 
 exists not out of mere international courtesy, but is founded 
 ex debit justitice upon the acts and intentions of the parties. 
 
 "■ Kent, Commentaries, as. 454, 458 ; Story, Conf. of Laws, ss. 75, 76 ; Bislicp, 
 Mar. and Div. s. 355. 
 
 2 OomMon v. Bearcroft, 2 Hag. Con. Eep. 443 n. See also Steeh v. Braddell, 
 Milw. Ir. Eccl. Eep. i. 
 
 3 For the corious, if not serious, anomalies which might result from enforcing the 
 claims of the lex domicilii, see Bishop, Mar. and Div. s. 359. 
 
 * As the Code Napoleon does in Article 170 : — " Le mariage contracte en pays 
 etranger entre franpais, et entre fran9ais et etrangers, sera valahle, s'il a ete celfebr^ 
 dans les formes usitees dans le pays, pourvu qu'il ait ete prdcdd^ des publications presoritea 
 par I'article 63, au titre des Actes de I'dlat civil, et que le fran^ais n'ait point contvevenu 
 aux dispositions contenues au chapitre precedent." This is the provision which enables 
 so many Frenchmen marrying abroad to get rid of their foreign wives, by obtaining 
 a, decree of nullity on the ground that they have not complied with the statutory 
 requirements of their lex domicilii. 
 
 ^ Cresswell, J., in Simonin v. Maillac {uhi sup.). 
 
 ^ Kent, Commentaries, s. 454 ; i Burge, For. and Col. Law, 129. See the English 
 cases, Male v. Boberts, 3 Esp. 163 ; Dalrymple v. Dalrymple,^ 2 Hag. Con. Eep. 54 ; 
 and the leading American case, Saul v. His Creditors, 5 Martin, N. S. [La.] 569. 
 
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marnages. 
 
 460 HUSBAND AND WIFE. [part i. 
 
 Now the policy of the law ought to be and is in favour of mar- 
 riage, and the principles of convenience and propriety applied 
 to commercial contracts affect in a more marked degree the 
 status of marriage, and the results flowing therefrom. Upon 
 this assumption the English Courts have hitherto acted, and held 
 that a marriage valid by the law of the place where it was 
 celebrated was a good and valid marriage in England.' At any rate 
 the earlier decisions did not in the conflict between the lex loci and 
 the lex domicilii make any distinction between the capacity of the 
 parties to contract and the forms of the ceremony to be observed.^ 
 Qualifications There are, however, exceptions and qualifications of the above 
 to the rule that rule, for any independent State may refuse to accept as valid 
 cefe&raJo^s within its territory certain marriages which might be valid in all 
 governs respects in the place where they were celebrated,' and the Courts 
 
 of such State would be compelled to refuse them recognition 
 whenever they were debated before them, and these exceptions 
 do not necessarily strike at the soundness of the rule. No 
 State, for instance, ought to be compelled, if it were possible, to 
 countenance a marriage which is declared to be incestuous by the 
 universal voice of Christendom ; or to recognize a marriage which 
 is polygamous." Again, if a State elects to say that its domiciled 
 citizens shall under certain circumstances be incapacitated from 
 contracting a valid marriage, and its citizens so incapacitated 
 from intermarrying cross over its borders and marry in a neigh- 
 bouring State which allows them to marry, and on return to their 
 domicil their marriage is called in question, the Courts must 
 pronounce against its validity.^ The very furthest limit to 
 which any country should consent to extend by recognition the 
 disabilities by their lex domicilii of parties who are present in 
 that country and are desirous of intermarrying, is an uncon- 
 ditional prohibition which cannot be removed by any act of the 
 parties. This even is asking too much of the law of the country 
 in which the parties happen to be residing. Where the prohibi- 
 tion of the lex domicilii is penal in its nature and operation, such 
 prohibition ought not to have any ex-territorial force ; and if the 
 
 '^ Dah-ymple v. Dalrymple, 2 Hag. Con. Rep. 54 ; Scrimshirev. Scrimshire, 2 Hag. 
 Con. Eep. 395 ; Eerhert v. Herbert, 2 Hag. Con. Eep. 263 ; Lacon v. Biggins, 3 Stark. 
 178 ; Myan v. Byan, 2 Phil. Ecol. 332. The validity of the Gretna Green marriages has 
 been upheld in a petition under the Legitimacy Declaration Act, 1857 ; Gardner v. 
 Gardner, 60 L. T. 839. The American Courts have acted upon the same principle 
 (Story, Conf. of Laws, b. 79)). 
 
 2 Dalrymple v. Dah-ymph (ubi sup.) ; but see Brook v. Broolc, 9 H. L. Gas. 
 
 19.3- 
 
 2 Such as marriages which infringe the provisions of the Eoyal Marriage Act, 
 12 Geo. III. c. II. Sussex Peerage Case, 11 CI. & P. 85. 
 
 * Hyde v. Hyde and Woodmansee, L. E. i P. & D. 130 ; Story, Conf. of Laws, 
 B. 113 a. 
 
 ^ Broolc V. Brooh [ubi sup.) ; Mette v. Mette, 28 L. J. P. M. & A. 117. 
 
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CHAP. XVIII.] MARRIAGE AND DIVORCE. 461 
 
 marriage is otherwise valid by the lex loci contractus, such marriage 
 should be valid everywhere. Thus, by the law of the State of 
 New York, one of a divorced couple cannot marry during the 
 lifetime of the other, and if he or she do contract a marriage, 
 the other living, a particular punishment is provided for such 
 offence. Should, however, one of the divorced parties come 
 over to England, or go to a neighbouring State where such pro- 
 hibition does not exist, and contract a marriage, such marriage is 
 valid not only in the place where it is celebrated, but also in the 
 State of New York itself.' 
 
 The modern theory of English law on this subject is thus 
 summed up in Mr. Dicey's valuable work on Domicil :' 
 
 " A marriage is valid when each of the parties has, according Capacity of 
 to the law of his or her respective domicil, the capacity to marry by their to ^ 
 the other, and if the marriage is celebrated in accordance with 'domicilii. 
 any form recognized as valid by the law of the country where forms^y the 
 the marriage is celebrated." _ _ c"«<„».. 
 
 The converse proposition, that marriages not conforming to the 
 requirements of the place of celebration in the matter of form 
 and ceremonies are invalid, does not' hold good in certain cases, 
 where — (i) " the parties enjoy the privilege of ex-territoriality, 
 and the marriage is celebrated in accordance with any form 
 recognized as valid by the law of the State to which they belong, 
 or (ii) the marriage (being between British subjects ?) is cele- 
 brated in accordance with the requirements of the English 
 common law in a country where the use of the local form is 
 impossible ; or (iii) the marriage is celebrated in a country not 
 being part of the British dominions, in accordance with the 
 provisions of, and the forms required by, 4 Geo. IV. c. 91, 
 12 & 1 3 Vict. c. 68, or any other statute applicable to the case." ' 
 Thus, the capacity of the parties is judged of by the lex 
 domicilii, and the validity of the forms and ceremonies by the 
 lex loci celebrationis, and the consent of parents or others are to be 
 deemed part of the ceremony.'' If the ceremonies of the locus 
 celebrationis are strictly followed, the validity of the marriage is 
 in no way affected by the parties having gone there to avoid the 
 requirements of the law of their domicil as to consents of proper 
 parties, publicity, or the like, or that no regular ceremony is 
 required by the law of the country where the marriage takes 
 place,' It thus seems to be the law that where two persona 
 
 ^ Ponsford v. Johnson, 2 Blatch. 51 ; Dicey, Dom. 223, 224. 
 2 Pp. 200, 201. ^ Ibid. 
 
 * Sottomayor v, De Barros, 3 P. D. i. For very full remarks on this case, see the 
 flret edition, pp. 494-498. 
 
 5 Dalrymph v. Dalrymple (ubi svp.) ; Swift v. Kelly, 3 Knapp, 257. 
 
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462 HUSBAND AND WIFE. [part i. 
 
 not under any disability by their lex domicilii, contract a marriage 
 in a country where they would be incapacitated from inter- 
 marrying, such marriage is valid.' This incapacity by the 
 lex domicilii applies equally to marriages of domiciled English 
 subjects marrying abroad, and domiciled foreign subjects marry- 
 ing in England.^ The English Court of Divorce has recognized 
 the validity of a divorce by the Court of the Ikc loci celebra- 
 tionis of the marriage, though by the lex domicilii of the parties 
 their marriage was indissoluble. In this case neither of the 
 parties to the marriage was a domiciled English subject.^ 
 Marriage The converse of the proposition that a marriage valid by the 
 
 lexiooi ceie- ^^^ of the place of celebration is valid everywhere, namely, that 
 iWMevery- ^ marriage invalid by the law of the place of celebration is 
 where. invalid everywhere, is equally true. But to this proposition 
 
 Exceptions, there are exceptions, and these are demanded by the necessity 
 of the case, for otherwise parties who were in foreign countries, 
 whether transiently or in permanent residence, and who were 
 utterly unable to conform to the requirements of the local law, 
 could never contract a valid marriage at all, though no obstacle 
 (other than the impossibility of conforming to the local law) 
 intervened. These exceptions are really based upon only one 
 ground or factor, namely, an insuperable incapacity to conform 
 to the lex loci. They have been thus classified :* 
 Impossibility (i) If the parties are sojourning in a foreign country and 
 ried^aooordtag under the local law there is no way by which they can enter into 
 to the law of valid marriage, they may marry in their own forms, and it will be 
 celebration, recoguized at home as good. The basis of this exception is the 
 practical impossibility of conforming to the laws of the country in 
 which the parties are commorant, such as by reason of the 
 impediment of religion ; thus, where two Protestants are in a 
 Roman Catholic country in which they could not be married 
 according to the lex loci without abjuring or mocking their own 
 Obstacle must religious faith .^ The obstacle to the marrying by the local 
 be insuperable. ^^^ must be practically insuperable, and no mere temporary 
 obstruction which by the lapse of a short time, or by making 
 slight concessions could be overcome." Foreigners would not 
 be bound to conform in a country the lex loci of which fixed the 
 age of majority at some comparatively late period of life, e.g., 
 
 1 Sottomayor v. De Ba/rros, 3 P. D. i. 
 
 3 Dicey, Dom. 218. Mette v. Mette, 28 L. J. P. M. & A. 117 ; Brook y. Brook, 
 9 H. L. C. 193- 
 
 ' Ingham (f. e. Sachs) v. Sachs, 56 L. T. 920. 
 
 * I Bish. Mar. & Div. sects. 392-400. 
 
 " Lord Chiicurry's Case, Or. Dig. 276 ; and see Sussex Peerage Case, 1 1 CI. & 
 r. 152. 
 
 ° Kent y. Burgess, 11 Sim. 361. 
 
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CHAP. XVIII.] MARRIAGE AND DIVORCE. 463 
 
 thirty or forty years, and required the consent of parents up to 
 that age. 
 
 (2) If in the place of celebration there is a special law, differ- Special law 
 ing froiii the general, permitting foreigners to marry in a way FoTeTgnerf 
 peculiar to themselves, and making the marriage good, they ^^J ^^c^rdmg to 
 avail themselves of it, and their marriages, if not contrary to the their own rites. 
 law of their domicil, will be valid also at home. That is, where 
 a country recognizes the marriage laws and rites of a definite set 
 of persons who have rites differing from those recognized by the 
 country at large, as in England Jews ; ^ persons who are married 
 according to the excepted and not general rites of that country 
 will be deemed to be validly married. " There is a jus gentium 
 upon this matter, — a comity which treats with tenderness, or at 
 least with toleration, the opinions and usages of a distincb people 
 in this transaction of marriage. It may be difficult to say 
 d priori how far the general law should circumscribe its own 
 authority in this matter ; but practice has established the principle 
 in several instances, and where the practice is admitted, it is en- 
 titled to acceptance and respect. It has sanctioned the marriages 
 of foreign subjects in the houses of the ambassadors of the foreign 
 country to which they belong. I am not aware of any judicial 
 recognition upon the point; but the reputation which the validity 
 of such marriages has acquired makes such a recognition by 
 no means improbable, if such a question was brought to judg- 
 ment." => 
 
 (3) An invading army carries with it the law of the country Marriage ceie- 
 to which it belongs (including the matrimonial law); and if, theilneTof 'an 
 while hostilities are progressing, a marriage is celebrated within invading army. 
 its lines, it need not conform to the law of the invaded country. 
 Thus, where two British subjects were married by an army 
 chaplain under a licence from the Commander-in-chief, within the 
 lines of the British army which had invaded a Dutch province 
 that had surrendered, but had not been ceded to the British 
 crown, and was awaiting a treaty of peace, their marriage was 
 held good.' 
 
 Section 2. 
 
 Divorce. 
 
 Divorce must be regarded from a different standpoint to marriage. Marriage ana 
 because while the status of marriage is universally recognized differently 
 
 regarded. 
 
 ^ Lindo V. Beliaario, 1 Hag. Con. Eep. 216 ; Goldsmid v. Bromer, i Hag. Con. 
 Kep. 324. ^ Per Lord Stowell in Buding v. Smith, 2 Ha§. Con. Eep. 371, 384. 
 
 ^ Buding v. Smith [uhi sup.). That the matrimonial law is included, see Lauiour 
 V. Teasdah, 8 Taunt. 830 ; Bex v. Brampton, 10 East, 282 ; Catterall v. Catterall, 
 1 Eob. Eccl. 580. See ante, p. 1 10. 
 
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464 HUSBAND AND WIFE. [paet i. 
 
 througliout the civilized world, divorce meets with only a partial 
 recognition, and is therefore more in the nature of a local 
 institution. Divorce is also not an incident of the marriage 
 contract to be governed by the lex loci contracttcs, but is an inci- 
 dent of status to be disposed of by the law of the domicil of the 
 The validity parties, namely, that of the husband.' It is now well established, at 
 pends upon any rate in most countries where divorce is permitted, that com- 
 ttie^Zea: domi- petg^t tribunals have jurisdiction to put an end to a contract of 
 marriage which was not originally made within their jurisdiction. 
 The circumstances which form the grounds for divorce are such as 
 are likely to cause scandal and offence in the society shared by the 
 guilty husband or wife ; and the protection of its own subjects 
 constitutes an ample reason for a State to assume jurisdiction 
 over those who offend against its laws or good morals. Thus, the 
 distinction has been made between marriage and divorce ; for 
 marriage is a thing juris gentium, and of universal recognition, 
 and if valid by the lex loci celebrationis should be held valid in all 
 countries, for this is most conducive to the interests of the 
 contracting parties. Divorce, on the contrary, is not of general 
 prevalence, and where permitted, is deemed either a quasi punish- 
 ment for offences against the moral law, or as a naeans to 
 prevent grave abuses and scandals, and these should be settled 
 by the lex domicilii, for such can only concern the society in 
 which the parties have taken up their permanent abode and 
 residence. 
 
 The question to be discussed is how far a divorce decreed in 
 one State will receive recognition in another. Mr. Justice Story 
 observes :^ "' Other most perplexing inquiries may grow out of 
 the consideration of the national character of the parties ; whether 
 they are both citizens or subjects, or both foreigners, or one a 
 citizen and the other a foreigner ; whether the marriage is 
 celebrated at home or celebrated abroad ; whether the j urisdiction 
 of any Court to pronounce a decree of divorce is to be founded on 
 the national character of the parties, or upon the celebration of 
 the marriage within the territorial jurisdiction, or upon the 
 domicil of the parties within it, or upon the actual presence or 
 temporary residence of one or both of them at the time when 
 the process for divorce is instituted. And if, upon any of these 
 grounds, the jurisdiction is sustained, another not less important 
 inquiry is, whether the law of divorce of the place of the 
 marriage, or that of the place where the suit is instituted, 
 is to be administered by the Court before which the suit ia 
 pending." 
 
 ^ Harvey v. Farnie, 6 P. D. 35. ^ Conf. Laws, sect, 204. 
 
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CHAP. xvm.J MARRIAGE AND DIVORCE. 465 
 
 It is not proposed here to discuss the competeacy or jurisdic- How far 
 tion of the English Court of Divorce to proaounce sentences of recognize"""^ 
 dissolution of marriage, but only how far the English Courts will ™ref 'Z °^ 
 recognize the validity of foreign divorces, in other words, how far divorces. 
 they will recognize the validity of sentences of dissolution by foreign 
 tribunals of marriages contracted in England, or by English sub- 
 jects domiciled in other countries. 
 
 The English Courts were formerly inclined to hold fully the 
 contractual theory of marriage, and that the right to divorce 
 depended upon whether the lex loci celebrationis permitted or refused 
 divorce to the parties. The question whether or not an English 
 marriage was indissoluble before the passing of the Divorce Act, 
 1857, has ranged the authorities on either side, but later decisions 
 and the text- writers on the subject generally hold that a foreign 
 court of competent jurisdiction is enabled under certain circum- 
 stances to pronounce a dissolution of a marriage celebrated in 
 England between an Englishwoman and a domiciled native in 
 the country where such court has jurisdiction. The English 
 Court of Divorce claims under the Divorce Act jurisdiction over, 
 and a right to dissolve, a marriage celebrated abroad between 
 foreigners, if they bring themselves within its jurisdiction by 
 acquiring an English domicil.' The English Courts ought to International 
 act (and do act) reciprocally, and attach the like credit to a dis- neeSuUn^ 
 solution of an. English marriage by a foreign Court, as they would expedient. 
 demand for a dissolution effected by them of the marriage of 
 non-English persons over whom they might claim to exercise 
 such jurisdiction. The effect of a foreign divorce on an " Eng- 
 lish marriage," or a marriage celebrated in England, is in no way 
 hampered in the English Courts by questions of the allegiance or 
 nationality of the parties,^ or whether or not the delictmru forming 
 the ground for divorce was committed within the jurisdiction of 
 the forum pronouncing the dissolution. 
 
 So far as the English Courts are concerned there are two im- 
 portant questions involved : 
 
 (i) Can a marriage celebrated in England between two 
 persons domiciled in a foreign country, or between a man 
 domiciled in a foreign country and a domiciled Englishwoman, 
 be put an end to by a decree of a Court of competent jurisdiction 
 in their own country, for causes suflScient or insufficient by the 
 law of England ? 
 
 (2) Can an " English marriage," that is, one celebrated between 
 
 1 Wilson V. Wilson, L. E. 2 P. & D. 435. 
 
 '^ It is otherwiBe with French and Italian subjects, for their personal capacity does 
 not depend upon domicil, but upon allegiance, and divorce is not recognized in Italy. 
 Die. Dom. 238. Divorce, however, has been of late legalized in France. 
 
 2 G 
 
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466 HUSBAND AND WIFE. [part i, 
 
 domiciled English subjects who afterwards bond fide change their 
 domicil, be'dissolved by a decree of a court of competent juris- 
 diction in the country of their new domicil, for causes sufficient 
 or insufficient by the law of England ? 
 ErS '"^ "^^ regards the first question there is no doubt that formerly, 
 
 between when there were few facilities for providing divorce, and it was 
 
 fo'rdgnirs, maintained that an English marriage was indissoluble, the Courts 
 by Courtl?'' ^®^® inclined to include in the phrase " English marriage" any 
 husband's and every marriage celebrated in England, though the contracting 
 °™'" • parties were not domiciled in the country at the time of contract- 
 
 ing the marriage tie. This question was involved in some of the 
 most serious conflicts between the English and Scottish Courts.' 
 The Scotch Courts claimed to dissolve marriages of persons red- 
 dent in Scotland, and originallj^.a formal residence of forty days 
 sufficed to found jurisdiction ; but since the case of Pitt v. Pitt,^ 
 this claim can hardly be maintained.^ The English Courts stren- 
 uously resisted the right of the Scotch or other foreign Courts 
 to dissolve marriages contracted, at any rate, between parties 
 "English mar- who retained their English domicil. An "English marriage" 
 is now construed to mean a marriage celebrated between parties 
 of whom the husband has an English domicil ; thus, a marriage 
 celebrated abroad between a domiciled Englishman and a 
 foreigner would be " English " ; while, on the contrary, a marriage 
 in England between a foreigner domiciled abroad and a domiciled 
 Englishwoman is a foreign marriage. 
 
 Domicil of the parties is the test applied by the English Courts 
 
 of the jurisdiction of foreign Courts to pronounce a dissolution of 
 
 a marriage celebrated in England or out of England. The 
 
 question under discussion has been recently answered in the 
 
 affirmative by the House of Lords in the Case of Harvey v. Farnie* 
 
 (upholding the decision of the Court of Appeal,* and of Sir 
 
 ranbrdi?^^ James Hannen'). That supreme tribunal held that the English 
 
 solved for Courts wiU rccognize as valid the decision of a competent foreign 
 
 inenfficieut in tribunal dissolving a marriage which had been celebrated in 
 
 England. England between a domiciled native in the country where such 
 
 tribunal has jurisdiction and an Englishwoman, where the decision 
 
 ^ LolUy's Case, i E. & E. 236 ; 2 CI. & F. 567 n ; Conway v. Beazley, 3 Hag. 
 Eccl. Eep. 639 ; TJtterton v. Tewsh, Ferg. Cons. Eep. 23 (and the other cases given 
 in that work); Warrender v. Warreiider, 10 CI. & F. 488; Dolphin v. Bobbins, 
 7 H. L. Gas. 390; Pitt v. Pitt, 4 Macq. H. L. Oas. 627 ; Shaw v. Gould, L. E. 
 3 H. L. 55. ^ Dbi suj/. 
 
 ^ But see Fraser H. & W. 1280 et seq. The answer to his lordship's reason for 
 holding that jurisdiction in divorce may ho constituted by residence without domicil, 
 is that the Scotch Court may pronounce a sentence of divorce valid in Scotland and for 
 Scotch purposes, which, however, need not be recognized by the Courts of the domicil 
 of the husband. * 8 App. Cas. 43. 
 
 ■■• 6 P. D. 35- " 5 P- 1^- 153- 
 
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CHAP. XVIII.] MAKRIAGE AND DIVORCE. 467 
 
 is not impeached by any kind of collusion or fraud, even though 
 the cause dissolving the marriage was not sufficient to found a 
 divorce in England. The facts of the case were shortly as 
 follows : — A. a domiciled Scotsman married in England B., a 
 domiciled Englishwoman. After marriage they resided in Scot- 
 land, and while there B. obtained a decree of dissolution of the 
 marriage from the Scotch Court, on the ground of A.'s adultery 
 alone. A., during the life of B., married 0. in England. C. 
 desiring to have her marriage with A. dissolved, and hearing of 
 his former marriage and divorce in Scotland, presented a petition 
 for declaration of nullity of marriage, on the ground (among 
 others) that the Scotch Courts could not dissolve an English 
 marriage, that is, a marriage celebrated in England between 
 parties one of whom was a domiciled English subject. The 
 President of the Probate Division dismissed the petition ; on 
 appeal, the Court of Appeal upheld his decision, and the decision 
 of the latter Court was in its turn upheld by the House of Lords.' 
 But even before this case the current of thought and opinion was 
 in this direction. Lord Westbury, in Shaw v. Gould,^ said, " The 
 right to reject a foreign sentence of divorce cannot rest on the prin- 
 ciple .... that where by the lex loci contractus the marriage is 
 indissoluble, it cannot be dissolved by the sentence of any tribunal. 
 Such a principle is at variance with the best established rules of 
 universal jurisprudence, that is to say, with those rules which, 
 for the sake of general convenience, and by tacit consent, are 
 received by Christian nations, and observed in their tribunals. 
 One of these rules certainly is, that questions of personal status 
 depend on the law of the actual domicil." Lord Penzance, in 
 Wilson V. Wilson^ said, " It is the strong inclination of my 
 opinion that the only fair and satisfactory rule to adopt on this 
 matter of jurisdiction is to insist upon the parties in all cases 
 referring their matrimonial differences to the Courts of the country 
 in which they are domiciled." In Maghee v. M'Allister* Lord 
 Chancellor Blackburne held the same view. So, too, in Shaw v. 
 AttoTTiey-General,^ Lord Penzance said, " In no case has a foreign 
 divorce been held to invalidate an English marriage between 
 English subjects where the parties were not domiciled in the 
 country by whose tribunals the divorce was granted. Whether, 
 
 ^ This case clearly decides tbe point that a woman on marriage assumes the domicil 
 of her huihand for all purposes, which, it is submitted, is inconsistent with the 
 qualification suggested by the Court of Appeal in Sottomayor v. De Barros, 3 P. D. 
 I, 7. See Turner (/. c. Thompson) v. Thompson, 13 P. I). 37. 
 -2 L. E. 3 H. B. 55, 83. « L.K. 2 P. & D. 43S, 442- 
 
 * 3 Ir. Ch. Eep. 604. 
 
 " L. R. 2 P. & D. 156, l6l. This case was decided nearly two years before Wilson 
 V. Wilson (ubisup.). 
 
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468 HUSBAND AND WIFE. [part i. 
 
 if so domiciled, the English Courts would recognize and act upon 
 such a divorce appears to be a question not wholly free from 
 doubt ; but the better opinion seems to be that they would do so 
 if the divorce be for a ground of divorce recognized as such in 
 this country, and the foreign country be not resorted to for the 
 collusive purpose of calling in the aid of its tribunals." Where 
 the parties are not domiciled in the country of the tribunal which 
 pronounces a decree of dissolution of marriage, the English Courts 
 would be very loth to give effect to the sentence ; thus, where a 
 woman who was a domiciled native of the State of Pennsylvania 
 at the time of her marriage in England with a domiciled English- 
 man returned to her native State, and there procured a divorce 
 from him in a suit in which he was cited but did not submit to 
 the jurisdiction of the Court, and married again, the husband in 
 England was held entitled to a decree of dissolution of marriage 
 
 Domicilmust with his wife on the ground of her adultery.' The domicil must 
 at any rate be a genuine one, and the proceedings to obtain the 
 decree of dissolution must be free from collusion or fraud.^ It is 
 true that there is one case' which has recently been decided, that 
 would make a residence less than domicil sufficient to ground 
 divorce proceedings. This case will be discussed more fully in a 
 later page." 
 
 Though the various Courts before which the case of Harvey v. 
 Farnie, ° came had no difficulty in arriving at their decision, it 
 was strongly urged in argument that the resolution of the judges 
 
 Lottey's Case, in the Celebrated case of Beg. v. Lolley '^ was a strong and bind- 
 ing authority for the contrary of the first proposition set out in 
 the text. The facts of Lolley's case are as follows : — Lolley, who 
 was a domiciled Englishman at the time of his marriage, went to 
 Scotland with his wife, and there committed adultery. Lolley 
 went to Scotland for the purpose of inducing and enabling his 
 wife to procure a sentence of divorce. His wife proceeded 
 against him in the Scotch Courts and obtained a decree of dis- 
 solution of marriage ; his domicil remained English throughout. 
 Lolley, on his return to England, contracted a second marriage, 
 and was indicted for bigamy. He was found guilty. The case 
 came up to the House of Lords on error. The judges were sum- 
 moned to assist the House, and after argument they unanimously 
 resolved that "no sentence or act of any foreign country or State 
 could dissolve an English marriage a vinculo matrimonii, for 
 ground on which it was not liable to be dissolved a vinculo 
 
 ' Oreen v. Green, [1893] P. 89. "' Bonaparte v. Bonaparte, [1892] P. 402. 
 
 ' Nihoyet v. Nihoyet, 2 P. D. i. * Post, p. 471. 
 
 ^ See ante, p. 466. " 2 CI. & P. 567 n. 
 
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CHAP. xviii.J MARRIAGE AND DIVORCE. 469 
 
 matrimonii in England." Here the Scotch domicil of the parties 
 was clearly fictitious, for their domicil remained English the 
 whole time. A considerable war has been waged over the mean- 
 ing of the term " English marriage," some holding that it was 
 wide enough to embrace " every marriage contracted in England." 
 Among those was Lord Brougham, who was counsel for Mr. 
 Lolley. His lordship was very angry with the decision, and 
 always thought it wrong, and in order to prove it wrong, as he 
 thought, he proceeded to reduce it to an absurdity, and this he 
 did in the case of M'Garthy v. Becaix,^ when he held that the 
 marriage of a domiciled Dane contracted in England with an 
 Englishwoman could not be and was not dissolved by a com- 
 petent Danish tribunal on the return of the husband and wife to 
 their Danish domicil. But this case has been distinctly over- 
 ruled in the House of Lords in Harvey v. Farnie, and is no 
 longer the law. Gn the other hand, the remarks of Dr. Lushing- 
 ton, in Conway v. Beaxlcy," and the distinction laid down by 
 Sir James Hannen and the House of Lords in Harvey v. Farnie, 
 have supplied the true meaning and limit of the expression 
 " English marriage " in the resolution of the judges in Lolley's 
 Case, namely, that it is a marriage where the husband is a domi- 
 ciled Englishman at the date of the marriage. 
 
 As it is clear that the tendency of the Eaglish authorities is " English mar- 
 towards holding that the law of the domicil of the parties is the eSved by "a 
 proper and only law by which to test the validity of their ''°™?''*?+h 
 divorce, the second question now becomes of importance, namely, husband's new 
 " Can an ' English marriage,' that is, one celebrated between 
 domiciled English subjects who afterwards hond fide change their 
 domicil, be dissolved by a decree of a Court of competent juris- 
 diction in the country of their new domicil, for causes sufficient 
 or insufficient by the law of England ? " 
 
 There is no actual decision on this point, but there are some 
 very strong observations by an eminent judge,^ to the effect 
 that, as domicil is the true and proper test, if English domiciled 
 subjects bond fide acquired a foreign domicil, and there have 
 recourse to a competent tribunal for the purpose of obtaining a 
 dissolution of their marriage, and do obtain it, the English Courts 
 
 1 2 CI. & F. s68n. The following are the facts : One Tuite, a domiciled Dane, Avas 
 married to an Englishwoman in England. They left England and went to Denmark, 
 ■where they were subsequently divorced. The husband's domicil remained Danish the 
 ■whole of the time. The ■wife returned to England. Lord Brougham held that the 
 resolution of the judges in LoUey^s Case prevented the Danish divorce from having 
 any legal operation in England, the mai-riage between the parties having been contracted 
 in England. 
 
 2 3 Hag. Eccl. Eep. 639. 
 
 2 Lord Penzance in Shaw v. Att.-Oen., L. R. 2 ?. & D. 156, 162 ; see ante, pp, 
 467, 468- 
 
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470 HUSBAND AND WIFE. [pabt i. 
 
 should recognize its validity, at all events if for causes sufficient 
 to ground a divorce in England. But the application of the test 
 of domicil ought to bring out the same results, even where the 
 parties obtain their divorce for causes insufficient to found a dis- 
 solution of marriage in England. Thus, A. and B., English domi- 
 ciled subjects, contract a marriage in Eugland, and subsequently 
 acquire a hond' fide Prussian domicil; they there discover that 
 they cannot get on together through what is termed " incompati- 
 bility of temper," which is a good ground for divorce in Prussia. 
 They have recourse to the Prussian tribunals, and obtain a decree 
 of divorce on that ground. The English Courts would probably 
 recognize the validity of the divorce. The Divorce Act of 1857,' 
 gives power to the Divorce Court to entertain "in England 
 .... all causes, suits, and matters matrimonial ; " and the only 
 limit to its jurisdiction is the required domicil of the parties 
 Domicil not having recourse to it.^ This English domicil is not lost by 
 nou-residenoe. mere non-residence in this country.^ If, then, this Court 
 claims to dissolve marriages celebrated abroad between persons 
 who were not at the time of marriage British subjects, or pos- 
 sessed an English domicil, it is only just and expedient that the 
 Courts of this country should reciprocally recognize the validity 
 of like sentences passed by the Courts of foreign countries. 
 
 In summing up the reasons why the lex dojnicilii should pre- 
 vail in questions of divorce, it may be put forward that, neither 
 the lex loci celebrationis nor any foreign law of the parties can 
 claim to be heard beyond the limits of its application (i) to ask 
 for a divorce in a country which does not permit it ; or (2) to 
 ask for it on grounds insufficient in the country where the par- 
 ties are domiciled, though permitted by the lex fori ; or (3) to 
 forbid a divorce which the public interests of the place where the 
 parties are domiciled demand. 
 Marriage of There is yet a third question that may be asked. Can a 
 
 ?i3h"persons°^ marriage between two persons retaining their English domicil be 
 dissolved by dissolved by a foreign Court of competent jurisdiction on grounds 
 tritaual. sufficient for grounding a divorce in England ? It is quite clear 
 
 that the question should be answered in the negative, if the 
 grounds for divorce in the foreign Court would be insufficient in 
 England. But it is more difficult to state definitely the answer 
 to the above question ; because, as will appear lower down, the 
 English Courts have claimed to exercise a jurisdiction to pro- 
 
 1 20 & 21 Vict. c. 85. 
 
 2 See Simonin v. Maillac, 29 L. J. P. M. & A. 97 ; and Brodie v. Brodie, 30 L. J. 
 P. M. & A. 185. 
 
 '^ D'Etchegoyen v. D' Etchegoyen, 13 P. D. 132. It is not necessary to raise the 
 question of domicil on the pleadings, it can be dealt with at the trial, Parlcinson v. 
 Parkinson, 69 L. T. 53. 
 
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CHAP. XVIII.] MARRIAGE AND DIVORCE. 471 
 
 nounce sentences of divorce between persons not domiciled in 
 this country ; and so by a kind of international reciprocity, the 
 sentences of foreign Courts pronounced upon the matrimonial 
 status of English domiciled subjects should be regarded as -valid 
 in this country. 
 
 The Scotch Courts formerly did not, and those of certain of Theory of tho 
 the American States do not require a domicil of both parties, or 
 of either of the parties, to found jririsdiction in divorce, but a 
 residence far short of domicil, and even a temporary resort to 
 the country for divorce purposes, is sufficient in those States.' 
 It has been seen that the English Courts, according to the better 
 authorities, require more than the mere presence of the parties in 
 a country to produce amenability to the jurisdiction of the forum, 
 that is, more than a forensic domicil. They require a domicil 
 iond fide and full for all purposes in order to found jurisdiction. 
 Without domicil they refuse to assume jurisdiction, and without 
 domicil in the foreign country they refuse to recognize the 
 divorce there obtained. There are no doubt cases ^ which sup- 
 port a view more in accordance with the earlier Scotch and 
 present American principles, that residence short of domicil will 
 suffice to found divorce jurisdiction ; but such are either explic- 
 able on the ground that they supply some necessary exceptions 
 to a hard-and-fast rule, or they must be put aside as contrary to 
 the general run of the decisions. The most recent case on this 
 point is Nihoyet v. Niboyet,^ in which the majority of the Court iv/doye* v. 
 of Appeal (James and Cotton, L. JJ. ; Brett, L. J., dissented) held, ' "^^ ' 
 reversing the decision of Sir Robert Phillimore,^ that residence Besidenco lees 
 of parties in England not amounting to domicil gave the English 
 Divorce Court jurisdiction over their matrimonial relations. The 
 facts were, that A. a domiciled Frenchman married B. an English- 
 woman at Gibraltar. A. (with his wife) came to England as a 
 French consul, therefore retaining his French domicil. A. was 
 alleged by B. to have deserted her and committed adultery ab 
 various times. Sir R. Phillimore dismissed B.'s petition for dis- 
 solution of marriage on the ground of want of jurisdiction. The 
 conclusion arrived at by the two assenting judges of the Court of 
 Appeal was based upon principles which, when applied by the 
 Scotch and other foreign tribunals, the English Courts have stead- 
 
 1 The principle upon which the Courts of Scotland formerly, and those of some of 
 the American States now proceed is, that the lex fori o{ the parties alone can determine 
 whether or not they shall be divorced ; if it permit divorce, and the parties produce 
 grounds for dissolution of the marriage tie recognized by it, the courts of th&t forum 
 will assume jurisdiction and grant divorce irrespectively of the law under which the 
 parties were married or any foreign law which may affect them. 
 
 2 Dech v. Deck, 29 L. J. P. M. & A. 129; Brodie v. BrocUe {ubi sup.). 
 ' 4 P. D. I. * 3 P. D. 52. 
 
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472 ^ HUSBAND AND WIFE. [part i. 
 
 fastly refused to recognize. They held that because the Courts 
 Christian did not recognize nationality or secular domicil of 
 individuals, but only proceeded against them when necessary 
 wherever they found them pro salute animarum, and because the " 
 English Divorce Court succeeded to the matrimonial jurisdiction 
 of the ecclesiastical Courts in England by the operation of the 
 Divorce Act, therefore the Court of Divorce must obey the statute, 
 and entertain any matrimonial suits brought by persons resident 
 in England, because a divorce a mensd et thoro was in previous 
 times an ecclesiastical sentence for the benefit of the soul of the 
 guilty party. The logical conclusion of this decision is that if a 
 Frenchman and wife come over to England, and the former com- 
 mits adultery and cruelty while only temporarily sojourning here, 
 the wife may bring a petition for divorce, and the Courts must 
 entertain it.' This decision clothes the English Court of Divorce 
 established under the Divorce Act, 1857, ''^ith complete jurisdic- 
 tion over all married couples temporarily commorant in this 
 country. The legislature has so clothed it probably quite unin- 
 tentionally. Lord Justice James said he thought he was not over- 
 ruling any English cases in so holding ; but the cases set out 
 below show that it was somewhat too full an assertion ; ^ and as 
 the House of Lords has repeatedly held a full and bond fide 
 domicil to be necessary to found divorce jurisdiction, Nihoyet v. 
 Niboyet seems to create an exception to the general law of the 
 land on this point. Brett, L.J., strongly insisted upon the 
 principle that the only law which should take upon itself to alter 
 the status of married persons should be the law of their domicil, 
 that is, the husband's domicil ; for it is the community of their 
 domicil that is affected by their relation towards one another. 
 In commenting upon Brodie v. Brodie^ his lordship quoted the 
 
 ^ This judgment is in curious contrast with that of the same judges in Sottomayor 
 V. De Barros, 3 P. D. i. 
 
 ^ Lolley's Case, K. & R. 237 ; 2 CI. & F. 567, n. ; Warrender v. Warrender, 2 CI. 
 & F. 288 (Scotch case) ; Conway v. Beazley, 3 Hagg. Ecc. 639 ; Telverton v. Yelver- 
 ton, 29 L. J. P. M. & A. 34 ; ToUemache \. Tollemache, 30 L. J. P. M. 115 ; JPire- 
 hrace v. Firebrace, 4 P. D. 63 ; Ratcliff v. Batcliff, 29 L. J. P. M. & A. 171 ; Wilson 
 V. Wilson, h. E. 2 P. & B. 435 ; (per Lord Penzance) ; and see Briggs v. Briggs, 5 P. 
 D. 163. The leading American text- writers hold that domicil is necessary for divorce 
 jurisdiction. Story (Conf. Laws, b. 230a) says, " The doctrine now firmly established 
 in America upon the subject of divorce is, that the law of the place of the actual bond 
 fide domicil of the parties gives jurisdiction to the proper courts to decree a divorce for 
 any cause allowed by the local law, without any reference to the laws of the place of 
 the original marriage, or the place where the offence for which the divorce is allowed 
 was committed." Again, Bishop (Mar. and l)iv., s. i2oi) says, " The rule is believed 
 to be that the domicil must be coruplete and (iill, in distinction from a quasi domicil, 
 adequate for every other purpose ; " and (s. 124a) that mere residence as dietinguiehed 
 fiom domicil is insufficient ; but that the residence must not only he permanent hut 
 accompanied with an animus manendi. 
 
 ^ 30 L. J. P. M. & A. r85. In the suit it was proved that the husband was an 
 Australian and domiciled in Australia, where both the man-iage and the wife's adulter}' 
 took place, but at the time of the suit was resident in England. 
 
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CHAP. XVIII.] MARRIAGE AND DIVORCE. 473 
 
 judgment of the Court, which was : — " We say nothing as to 
 what the effect of the evidence might be in a testamentary suit ; 
 we think that the petitioner was hoiul fide resident here, not 
 casually or as a traveller. After he became resident here, his 
 wife was carrying on an adulterous intercourse in Australia. He 
 is therefore entitled to a decree nisi for a dissolution of the 
 marriage ; " and remarked, " If this was held to be a domicil, it 
 is consistent with all the cases ; if it is to be taken as a decision 
 that there can be a minor species of domicil sufficient for one 
 purpose and not for another, I know of no authority or ground 
 of reason for such a distinction. I cannot agree with it." 
 It is to be noticed that the different judges who constituted 
 the House of Lords in the case of Harvey v. Farnie did not in 
 any way accept without questioning the accuracy of the decision 
 in Niboyet v. Niboyet ; and laid some stress upon the fact that 
 the Court of Appeal was divided. While it was not obligatory 
 upon them to overrule it, or impugn its authority, they did not 
 accept it as an absolutely accurate decision. Apart from any 
 other considerations, the domicil of the parties ought to be the 
 test of jurisdiction, if only to prevent the risk of collusion, and 
 the scandalous and disgraceful abuse of the Courts of the forum 
 to which they would be subjected by those who resorted to them 
 for the purpose of freeing themselves from the irksome fetters 
 imposed by the law of their domicil. Mere temporary residence 
 within their jurisdiction would otherwise suffice, and every 
 guarantee against fraud and chicanery would be rendered power- 
 less and ineffectual. If Niboyet v. Niboyet is to be taken as an 
 accurate exposition of the law of England, the residence of the 
 petitioning party must be a genuine one, and the proceedings to 
 obtain the decree of dissolution must be free from collusion or 
 fraud. ^ Again, if it does represent the law of this country, the 
 English Courts will find great difficulty in refusing to recognize 
 the validity of decrees of dissolution of marriage pronounced by 
 competent foreign tribunals of domiciled English subjects resident 
 abroad whether for causes sufficient or insufficient by the law of 
 this country. 
 
 The decree of the High Court of Judicature in any of the Eecogaition of 
 Indian Presidencies, dissolving the marriage of British subjects divorces of 
 professing the Christian religion under 24 & 25 Vict. c. 104, S'S^'jj™ 
 s. 9, the letters patent of December 28, 1865, and the Indian subjects. 
 Divorce Act of 1869, will be recognized in this country.^ 
 
 ^ See Bonaparte \. Bonaparte, [1892] P. 402. 
 2 In the Goods of Hares, 13 P. D. 35. 
 
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PART 11. 
 
 PARENT AND CHILD. 
 
 CHAPTEE I. 
 
 LEGITIMACY. 
 
 PAGE 
 
 Relation op Paebnt and Child 474 
 
 How Status of Legitimacy Constituted .... 475 
 
 Steong Presumption in Favour op Legitimacy . . 476 
 
 Presumption Rebuttable : Non-access .... 477 
 Husband or Wipe cannot give Evidence to prove 
 
 Access or Non-Accbss 477 
 
 Physical Impossibility op Access 47S 
 
 Moral Impossibility op Access 479 
 
 The Banbury Peerage Case 480 
 
 No Fixed Period op Utero-gbstation in English Law . 483 
 Legitimation pee Subsequbns Matrimonium not Re- 
 cognized IN England : Statute op Mbeton . . 484 
 Heir to Real Peopeety in England must be Born in 
 
 Wedlock 484 
 
 Person Illegitimate by Law op Domicil op Origin 
 cannot be Legitimated by Subsequent Marriage 
 
 op Parents 484 
 
 Pbeson Born in Countey Permitting Legitimation per 
 Subsequbns Matrimonium Legitimate if Father is 
 
 Domiciled and Marries in that Coujjtry . . . 485 
 When Claim op Antbnatus Designated as "Child," 
 
 taking under Testamentary Disposition Acceded to 485 
 
 The Aptbr-Mareiage must be Lawful .... 486 
 
 Domicil op Legitimate Children 486 
 
 Domicil of Origin Domicil of Father .... 486 
 
 Domicil op Fatherless Infant Domicil op Mother . 486 
 
 Domicil op Origin op Legitimated Child that op Father 487 
 
 Legitimacy Declaration Act, 1858 488 
 
 Practice under the Act 489 
 
 Relation of " Thb next and most universal relation in nature is immedi- 
 chiid! *° ately derived from the preceding, being that between parent and 
 
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CHAP. I.] LEGITIMACY. 475 
 
 cMld." ' The relation of parent and child is an importaat 
 element in the constitution of the family. There are two 
 classes of children ; (i) legitimate, and (2) illegitimate. Legi- 
 timate children are those born within wedlock, or within some 
 reasonable time after its dissolution. Illegitimate, or bastard 
 children (spurii, filii mdliiis), are those not born in lawful wed- 
 lock, or if so born, are proved not to have been begotten by the 
 husband of their mother. 
 
 The full and complete legal relations of parent and child in Eng- Legitimacy. 
 land can only exist where the child has been born of his parents 
 in lawful wedlock. Legitimacy is derived from birth in wedlock 
 and from nothing else. The law of England, like that of Rome, 
 recognizes broadly the doctrine pater est quern nuptice demonstrant,^ 
 or the paternity of the child is tested or proved only by reason of 
 its having been born of an union sanctioned by the law. The 
 pcdria potesias, or parental dominion, extends over such a child. 
 Bastards are, according to the stricter interpretation of the law, illegitimate 
 strangers to those who have brought them into being. The 
 Legislature, however, on ground of public policy, has recognized 
 the natural tie existing between them and their parents, and has 
 imposed the obligation of their support and maintenance upon 
 the latter. This subject of Parent and Child will be treated of 
 under the headings of Legitimate and Illegitimate Children. 
 
 Legitimate Children. 
 
 Legitimacy is a status arising out of the fact of birth within status of 
 lawful wedlock, or within a reasonable time after its dissolution, constituted. 
 or an act of legitimation subsequent to birth out of wedlock. By 
 the law of England the full and complete relations of parent and 
 child can only exist where the child has been born of his parents 
 in lawful wedlock. It is true that Blackstone^ mentions the 
 possibility of legitimation by Act of Parliament in cases where 
 the parents have not married subsequently to the birth, as was 
 done in the case of the bastard children of John of Gaunt, Duke 
 of Lancaster ; but practically, as regards persons born of parents 
 domiciled in England at the time of birth, legitimacy alone pro- 
 ceeds from birth in lawful wedlock. For the succession to real 
 property in England on intestacy, the law was and still is that 
 wedlock must precede the birth ; ^ as , regards the distribution of 
 personal property to be administered in this country the like rule 
 formerly prevailed, but has been lately altered in favour of the 
 
 1 I Bl. Com. 446. 2 j|,st. Inst. Bk. i, tit. ix. 
 
 3 I Com. 459. * Biriwidstle v. Vardill, 7 CI.& F. 895. 
 
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476 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 Eeeults of 
 legitimacy. 
 
 Pater est quern 
 nuptial demon- 
 strant. 
 
 Presumption 
 holds good 
 where child 
 born soon after 
 marriage. 
 
 Strong pre- 
 sumption in 
 favour of 
 legitimacy. 
 
 claimants who are legitimate by the law of their parents' domicil, 
 though not bom in wedlock.' " Legitimacy by birth depends 
 on two facts; the one is the lawful marriage of the parents 
 of the child, and the other that the child is the fruit of that 
 marriage.^ From legitimacy flow many important considerations, 
 the right of inheritance, the right of bearing the father's name, 
 kinship and family ties, involving the right to be maintained, 
 educated, and protected. 
 
 The English Law adopts as a presumption the Eoman law 
 maxim pater est qioem nuptice demonstrant ; in other words, the 
 child of a married woman is presumed to be legitimate. 
 
 This presumption holds good not only where the child is born 
 some time after the celebration of the marriage, but where it is 
 born within such a short time after that the conception could not 
 have taken place in wedlock. Thus, if a man marries a woman 
 with child, whether begotten by him or some other man, the child 
 when born is presumed to be his, and legitimate until the con- 
 trary be shown.' If proof is forthcoming that the man knew 
 of the condition of the woman before marriage, there is a very 
 strong presumption that it is his own, " for where a man marries 
 a woman whom he knows to be in this situation, he may be con- 
 sidered as acknowledging by a most solemn act that the child is 
 his."^ Fomroft's Case^ it is true, has been held to be an 
 authority against this proposition, but probably this is due to 
 a wrong view of the case ; and the law as above is clear and 
 without dispute. Where after open courtship and constant inter- 
 course a man and woman, she being in an advanced state of 
 pregnancy, hurry on their marriage to prevent or mitigate scandal, 
 and a child is born soon after, the presumption that the 
 husband is father to that child is next to insuperable, and the 
 omis of establishing his denial of paternity lies upon him.' 
 And where a man has been reputed all his life to be the legi- " 
 timate child of his parents, those who dispute his legitiniacy after 
 his death must produce very strong and unequivocal evidence in 
 support of their contention.' 
 
 This presumption of legitimacy, which is based on the interests 
 of morals and society, is very strong, but not one juris et de jure, 
 
 1 Se Goodman's Trusts, 17 Ch. D. 266. See post, p. 485. 
 
 2 I Bur. For. & Col. Laws, 58. » Co. Litt. 244 (a). 
 
 * Sex V. Lvffe, 8 East, 193, 210, per Lawrence, J., citing the authority of Lord 
 Eolle. 
 
 ^ 10 B. I B. Eot. 23 : I Eol. Abr. 359. This was a case of an infirm and bedridden 
 man who married a woman iar gone with child, not in a church, and without the Mass 
 being said. The child was born twelve weeks after the marriage, and was adjudged a 
 bastard, probably on the ground of the invalidity of the marriage. 
 
 ^ Gardner v. Gardner, 2 App. Cas. 723. 
 
 ' Haslam v. Cron, Se Olivant, 19 W. E. 968. 
 
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CHAP. I.] LEGITIMACY. 477 
 
 so as never to be assailed or impugned, and consequently excep- 
 tions to the rules have at all times been admitted.^ The civil 
 law admitted four exceptions — (i) The absolute and permanent CivU law 
 impotence of the husband ; (2) the accidental impotence or bodily '^^"^^ 
 disability of the husband ; (3) his absence from his wife during 
 that period of time in which, to have been the father of the child, 
 he must have had intercourse with her ; (4) long-continued non ■ 
 intercourse from sickness or other reason. 
 
 In English law this presumption may be rebutted by proof of Presumption 
 non-access on the part of the husband.^ The rebutting 
 evidence must not be circumstances which only create doubt and Non-access. 
 suspicion, but must be strong, distinct, satisfactory, and conclu- 
 sive.' Mere adultery of the wife is not enough ; and where 
 husband and wife have cohabited together, and no impotency is 
 proved, the issue is conclusively proved to be legitimate, though 
 the wife is shown to have been at the same time guilty of 
 adultery,^ even in cases where her adultery is notorious,* and 
 no evidence except to disprove it will be admitted." But 
 where the husband and wife have been judicially separated, and 
 the latter bears children, they are primd facie illegitimate, for the 
 parents will be deemed to have obeyed the sentence of the Divorce 
 Court.' The old common law rule that husband or wife can- Husband and 
 
 wife cannot 
 give evidence 
 
 1 Bosvile V. Att.-&en., 12 P. D. 177. In tliia cafe the child was born 276 or 277 to prove access 
 days after the last opportunity of sexual intercourse between the wife and the husband, ™ iioii-access.^ 
 and on the facts of the case the Court pronounced the child to be illegitimate. The 
 French code is stricter in its presumption than the English ; thus, by Article 312 
 of the Code Civil it is enacted that the child conceived during the marriage has as its 
 father the husband of its mother. The article goes on to add that the father, however, 
 may repudiate the child if he can prove that from the 300th to the 180th day before 
 the birth of the child it was physically impossible for him, whether from absence or 
 result of an accident, to have had intercourse with his wife. This limits the power 
 of the father or the father's heir to rebut the presumption of law to cases where the 
 intercourse of the hudband with his wife was physically impossible between the 300th 
 and 180th day, i.e., between the tenth and sixth month, before the birth of the child. 
 The French law does net recognize the moral impossibility of access of the husband 
 to the wife. M. Eiviere, editor of the Codes Franfais et Lois VsueUes (1876), notes 
 the statement of how that the child conceived during the marriage has as its father 
 the husband of its mother. Thus : " La presumption qne I'enfant nfi pendant le 
 manage a pour p^re le man n'est point alteree par I'indioation dans I'aote de naissanoe 
 d'un pere autre que le mari." — Cass. 13 Join, 1865. 
 
 ^ By Scotch law "the rule, pater est quern nvptice demonstrant, creates merely a 
 presumptio juris, which may be redargued by contrary proof, showing that the child 
 cannot be the issue of the husband and wife. The grounds upon which the presumption 
 may be overthrown resolve themselves into two — (i) That the husband could not have 
 sexual intercourse with his wife by reason of his impotency ; and (2) that, having the 
 power, he had in fact no sexual intercom'se with her at the time of the conception.'' — 
 Fraser, P. & C. 4. 
 
 3 Morris v. Davies, 5 CI. & F. 163 ; Atchley v. 8prigg, 33 L. J. Ch. 345 ; Bosvile 
 V. Att.-Gen. {vH sup,). 
 
 ■• Cope V. Cope, i M. & E. 269 ; Morris v. Davies (uhi sup.). 
 
 ^ Beg. V. Mansfield, i Q. B. 444; Atchley v.Sprigg {uhi sup.). 
 
 ^ Opinion of the Judges io The Banbury Peerage Case, i Sim. & St. 156; Nio. 
 Ad. Bast. 
 
 ' 8t, Oeorge v. St. Margaret, i Salk. 123. 
 
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478 PARENT AND CHILD. [part ii. 
 
 not give evidence to prove access or non-access/ whether directly 
 or indirectly, so as to bastardize their issue, is still recognized.* 
 But in pedigree cases where the legitimacy of a child born in 
 wedlock is in issue, previous statements by the mother that the 
 child is a bastard are admissible as evidence of her conduct 
 though such statements could not be made by her in the witness 
 box.^ It is true, however, that by the Evidence Amendment Act, 
 1 869,' "in proceedings instituted in consequence of adultery," 
 that is, in matrimonial suits, the wife, as well as the husband, 
 may give evidence as to her adultery, and so indirectly afford 
 important testimony as to the bastardy of her child or children ; * 
 but the bastardizing of such child or children cannot directly 
 follow from such evidence." There are two modern equity deci- 
 sions' (one of which no doubt directly impugns the common law 
 doctrine), the authority of which has been denied in a still later 
 case.' In Be Eidemot's Tmsts, James, V.-O., admitted the 
 husband's evidence to prove non-access, though he required 
 corroborative evidence. In lie Yearivood's Trusts, Hall, V.-C, 
 on the assumption that the earlier case had altered the law, and 
 that the proceedings before him had been instituted in con- 
 sequence of the wife's adultery, admitted the husband's evidence 
 to prove non-access, though he required it to be corroborated. 
 But in the more recent case of The Guardicins of Nottingham 
 Union v. TompTcinson the Common Pleas Division was of opinion 
 that " proceedings instituted in consequence of adultery " in the 
 Evidence Amendment Act, 1869, are confined to proceedings in 
 the Divorce Courts for divorce or judicial separation ; and that 
 apart from such proceedings the evidence of husband or wife to 
 prove non-access with the result of bastardizing the issue was 
 inadmissible. Such non-access must be proved aliunde. This 
 rule is based upon good sense and public policy; for the 
 indecency of husband or wife giving such evidence is avoided ; 
 and any temptation to bastardize a particular child is defeated and 
 discouraged. The non-access of the husband may be supported 
 by proof of (i) natural or physical impossibility; (2) moral 
 impossibility. 
 Physical (l) Natural or physical impossibility may be due to impotency 
 
 impotency.^' °'^ *^® P*^'' o^ ^^^ husband, whether arising from natural or 
 
 ' Ooodright v. Moss, Cowp. 591 ; Hex. v. Sourton, 5 A. & E. i8o. 
 
 ^ Vlverstone Union v. Tarh, 53 J. P. 629; Jrleioat's Divorce Bill, 12 App. Cas. 312. 
 
 2 Aylesford Peerage Case, 11 App. Cas. i. 
 
 « 32 & 33 Vict., c. 68. ^ Sect. 3. 
 
 <" See Pryor t. Shelford, 12 P. D. 165 ; Hewafs Divorce Bill (ubisup.). 
 
 '> Re Eideout's Trusts, L. I!. 10 Eq. 41 ; Re Yearwood's Trusts, 5 Cli. D. 545. 
 
 8 Nottingham Union v. TomJdnson, 4 C. P. D. 343. 
 
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«HAP. I.] LEGITIMACY. 479 
 
 accidental causes. It may also arise from the absence of the Absence of the 
 husband. " The physical impossibility, arising from the absence ''"®''*'"'- 
 of the husband, exists when the birth of a child takes place at a 
 period so distant from the commencement of that absence, or so 
 recently after it has ceased, that it cannot, according to the 
 ■course of nature, be attributed to his sexual intercourse with his 
 wife." ' 
 
 Under the old common law a child born during the marriage Special matter, 
 •of its parents was presumed to be legitimate except for " special "'" ^*^*'^'^*'y- 
 matter." Special matter, or bastardy, arose from (i) the im- impotency. 
 potency of the husband ; (2) his being separated from his wife Separation, 
 by sentence of divorce, for separation without such sentence was 
 insuflBcient ; (3) his being extra quatioor maria, that is, being Husband being 
 absent from the king of England's dominions when the child was ^fJ^'^J""*'^'' 
 conceived.'^ The ridiculous doctrine that unless the husband of Doctrine now 
 the mother happened to be abroad and out of England, a child exploded. 
 born to her must conclusively be deemed to be his, though con- 
 vincing evidence might be adduced that he could not be the 
 father, and was during the whole period of gestation hundreds of 
 miles away from the mother, has been for a long time exploded." 
 The eiiect of absence on the question of bastardy does not depend 
 upon the propinquity or distance of the husband from the wife 
 ■during the alleged period of absence and non-access ; the parties 
 might be living in the same town, yet if conclusive evidence was 
 produced that there was no such access as might have resulted in 
 the birth of the child, the effect of such evidence will be to rebut 
 the presumption that the husband availed himself of possible 
 opportunities of sexual intercourse with his wife.'' If ever it was 
 held necessary that the husband must be absent from his wife 
 the whole period of gestation, that isj before the child could have 
 been conceived, and after its birth, it is no longer so ; and it is 
 enough if the husband returns at such a time anterior to the 
 birth, that he could not by the ordinary laws of nature be the 
 father of the child. ^ 
 
 (2) Physical impossibility need not be made out, but the Moral 
 moral impossibility of access of the husband to the wife will have '™P™^' ' ^ ^- 
 due weight given to it, even to the rebutting of the presumption 
 of the legitimacy of the child born during the lawful wedlock of 
 Ihe husband and wife. By moral impossibility of access is meant 
 
 1 I Bur. For. and Col. Laws, 63. ^ Nicolas, Ad. Bast. 28. 
 
 ' Pendrdl v. Pendrell, 2 Str. 925 ; Bex v. Luffe, 8 East, 193 ; ifshelley v. , 13 
 
 Ves. 56. 
 
 ^ Morris v. Davies, 5 CI. & F. 163 ; AtcVey v. Spricjy, 33 L. J. Ch. 345 ; Ayles- 
 ford Peerage Case {uhi sup. ). 
 
 5 Bex V. Luffe {uhi sup.). 
 
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480 PARENT AND CHILD. [part ii. 
 
 the conclusion arrived at from the surrounding circumstances of 
 the case that the husband, though having possible opportunities 
 of sexual intercourse with his wife, did not avail himself of them, 
 so as to be the father of his wife's child born amidst such 
 circumstances. This doctrine, implying that the presumption of 
 legitimacy is only a question of fact, and if unsupported, or con- 
 tradicted by evidence, may be rebutted, was finally and fully 
 established by the answers of the judges and decision of the 
 Banbury House of Lords in the important case known as the Banbury 
 Peerage Case? Lord Redesdale in his judgment,^ sums up the 
 law with great force and clearness. He says, " I admit that the 
 law presumed the child of the wife of A., born when A. might 
 have had sexual intercourse with her, or in due time after, to be 
 the legitimate child of A. ; but this was merely considered as a 
 ground of presumption, and might be met by opposing circum- 
 
 ' Nic. Ad. Bast, passim; i Sim. & St. 153. 
 
 2 Ibid. 462. The facts of this remarkable case are shortly as follows : — Sir Wm. 
 K.nollys, afterwards the Earl of Banbury, married his second wife, Lady Elizabeth 
 Howard, in 1605. He was created Earl of Banbury in 1626. In 1627 the Countess' of 
 Banbury gave birth to a son, who received the name of Edward. In 1628, owing to a 
 dispute as to the precedence of his patent, the Earl allowed the king (Charles I.) to 
 describe him as childless in a message to the House of Lords. In 1630 the countess 
 gave birth to another son, who was named Nicholas. From time to time the earl and 
 countess executed conveyances of his property which would have deprived any children 
 he might have had of a large portion of their rightful inheritance. The earl died in 
 1632, when he must have been about 85 or 86 years of age. The countess married 
 Edward, Lord Vaux (the alleged adulterer), five weeks after the earl's death. At the 
 first inquisitio post mortem it was found that the earl had died without heirs male of 
 his body. Eight years after (1640), by a second inquisition Edward (born in 1627), 
 then produced for the first time, was found the late earl's son and next heir ; in the 
 year following the fact of the countess having a second and younger son is recorded. 
 Edward died a minor ; and in 1660 Nicholas, the younger son, took his seat on the 
 Kestoration in the House of Lords ; but soon after objections were made to his presence 
 on the ground of his illegitimacy. His case was referred to a Committee of Privileges, 
 who took evidence, and reported first that he was legitimate in the eye of the law, which 
 they afterwards corrected to legitimate according to the law of the land, and that he 
 should take his place in the House ; but the consideration of the report was adjourned 
 from time to time ; and he never was summoned by writ to Parliament. He died in 
 1673. After his death no one ever sat in the House of Lords in right of the earldom of 
 Banbury, but in 1693 the House decided adversely to the claim of Charles Knollys, son 
 of Nicholas, to the title of Earl of Banbury. In 1806, 'William^ Knollys, a lineal 
 descendant of Nicholas, presented a petition to the Crown to be admitted to the enjoy- 
 ment of the rights and privileges granted to the first earl. In 1811 his case was 
 referred to a Committee of Privileges, before whom all the evidence was reviewed ; and 
 in 1813, it was resolved and oairied by the committee that the petitioner had not made 
 out his claim to the title and dignity and honour of Earl of Banbury, on the ground 
 that the circumstantial evidence of the case conclusively proved the moral impossibility 
 of such sexual intercourse on the part of the first Earl of Banbury with his wife 
 Elizabeth as could have resulted in the birih of her two sons Edward and Nicholas. 
 The circumstantial evidence pointing to the illegitimacy of the children was " the 
 concealment of their birth ; Lord Banbury's entire ignorance that any such children 
 were in existence ; the execution by him of instruments containing dispositions of 
 property, which never, it was presumed, would have been made, if he had not believed 
 himself childless ; his will affording further proof of this belief, and of his ignorance of 
 their birth ; inquisitions taken in the neighbourhood of one of the family mansions, and 
 where his widow resided, treating her late husband as having died without any issue, 
 and which passed without controversy ; the recognition of these children by the 
 widow and the adulterer (Lord Vaux) as their offspring ; and her subsequent marriage 
 with Lord Vaux."— i Burge, For. & Col. Law, 79. 
 
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CHAP. I.J LEGITIMACY. 481 
 
 stances. The fact, indeed, that any child is the child of any man, 
 is not capable of direct proof, and can only he the result of presump- 
 tion; understanding by presumption, a probable consequence 
 drawn from facts-(eit]ier certain or proved by credible testimony), 
 by whicb may be determined the truth of a fact alleged, but of 
 where there is no direct proof. Thus, if A and A* are married, 
 and are in such habits of intercourse that A may be the father 
 of a child born of the body of A*, immediately produced as the 
 child of A, and received as such by A, the child is presumed to 
 be his child, though the fact of sexual intercourse cannot be 
 proved ; and if the death of A before the birth of the child 
 prevents its reception by him as his child, yet if the birth happen 
 within a time which in ordinary course is the longest time of 
 pregnancy before birth, the child is presumed to be the child of 
 A. If a child is born of the body of A*, and alleged to be the 
 child of A, bid not so acknowledged by him, nor produced on its 
 birth as his child, yet if circumstances would admit of sexual 
 intercourse, and the non-production of the child as the child of 
 A can be sufficiently accounted for, it will be presumed that the 
 child is the child of A. But in all these cases, the fact that the 
 child is the child of A is a fact presumed and not proved. When, 
 therefore, circumstances occur which may tend to rebut the pre- 
 sumption that a child born of the body of A*, the wife of A, is 
 his child, then, presumption rebutting presumption, the conclu- 
 sion must be drawn from the whole evidence." 
 
 During the course of the investigation in this case, the help of 
 the judges was obtained, and to them were put certain questions. 
 Their answers and the decision of the committee declared the law 
 to be that, notwithstanding opportunities of intercourse between 
 husband and wife, and here they were living in the house, and 
 were even seen in bed together, if the evidence of surrounding 
 circumstances would warrant the clear conclusion of the moral 
 impossibility of access or sexual intercourse of the husband with 
 his wife, the legitimacy of children born of the wife amid such 
 surrounding circumstances may be successfully contested. 
 
 Some of the answers were as follows : — 
 
 The presumption of legitimacy arising from the birth of a Presumption 
 child during wedlock, the husband and wife not being proved to °f a^fh/u bom 
 be impotent, and having opportunities of access to each other ^°™s wed- 
 during the period in which a child could be begotten and born in rebutted. 
 thp course of nature, may be rebutted by circumstances inducing 
 a contrary presumption. 
 
 The fact of the birth of a child from a woman united to a man Child bom in 
 by lawful wedlock, is generally, by the law of England, primd 
 
 2 H 
 
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482 PARENT AND CHILD. [part ii. 
 
 primd facie fcicie evidence that such child is legitimate. In every case in 
 which there is primd facie evidence of any right existing in 
 any person, the onus prohandi is always upon the person or party 
 
 Primd facie calling such right in question. Such primd facie evidence of 
 
 be rebutted, legitimacy may always be lawfully rebutted by satisfactory evi- 
 dence that such access did not take place between the husband . 
 and the wife as by the laws of nature is necessary in order for 
 
 impotency, the man to be, in fact, the father of the child. The physical fact 
 
 &c., may, m . . ' . 
 
 questions of 01 impotency, or of non-access, or of non-generatmg access, as 
 p^TOve?a7in^ the case may be, may always be lawfully proved by means of 
 other cases g^ch legal evidence as is strictly admissible in every other case in 
 
 where its proof ..... tii-ij 
 
 is necessary, which it IS necessary, by the law of England, that a physical fact 
 
 be proved. 
 After proof of After proof given of such access of the husband and wife, by 
 dence'admis- which, according to the laws of nature, he might be the father of 
 omtradicut*" ^ child (by which we understand proof of sexual intercourse be- 
 tween them), no evidence can be received except it tend to falsify 
 the proof that such intercourse had taken place. 
 Where child In every case where a child is born in lawful wedlock, the 
 
 wedio'okl^^x"^ husband not being separated from his wife by a sentence of 
 
 iiai intercourse divorce, sexual intercourse is presumed to have taken place be- 
 between hus- -, ■!. .,1 •• 
 band and wife tween the husband and wife, until that presumption is en- 
 
 un«r™butted countered by such evidence as proves, to the satisfaction of those 
 by conclusive ^t^q are to decide the question, that such sexual intercourse did 
 
 evidence to the ^ , ' 
 
 contrary. not take place at any time, when, by such intercourse, the 
 husband could, according to the laws of nature, be the father of 
 such child. 
 
 The presumption of legitimacy of a child born in lawful wed- 
 lock, the husband not being separated from his wife by a sen- 
 tence of divorce, can only be legally resisted by evidence of such 
 facts or circumstances as are sufficient to prove to the satisfaction 
 of those who are to decide the question that no sexual inter- 
 course did take place between the husband and wife at any time, 
 when, by such intercourse, the husband could by the laws of 
 nature be the father of such child. Where the legitimacy of a 
 child in such a case is disputed, on the ground that the husband 
 was not the father of such child, the question to be left to the 
 The question jury is. Whether the husband was the father of such child ? And 
 ""was^the"^ ' the evidence to prove that he was not the father must be of such 
 father's the f^cts and circumstances as are sufficient to prove to the satisfac- 
 chiid?" tion of a jury that no sexual intercourse took place between the 
 
 husband and wife at any time, when, by such intercourse, the 
 husband could by the laws of nature be the father of such child. 
 The non-existence of sexual intercourse is generally expressed by 
 
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CHAP, I.] LEGITIMACY. 483 
 
 the words " non-access of the husband to the wife ; •" and we 
 understand those expressions as applied to the present question 
 as meaning the same thing, because in one sense of the word 
 " access " the husband may be said to have access to his wife as 
 being in the same place or the same house, and yet under such 
 circumstances, as instead of proving, tend to disprove that any 
 sexual intercourse took place between them. 
 
 The law laid down in this case was followed in subsequent 
 ones, especially in that of Morris v. Davies} Here the husband 
 and wife voluntarily separated; but the husband lived only 
 fifteen miles off, visited his wife, and had opportunities of 
 sexual intercourse. She was delivered of a child during the 
 separation, and there was nothing physically impossible in the 
 husband being the father ; but, looking at the conduct of the 
 wife and the supposed paramour before and after the birth, it 
 was held morally impossible that the husband could have been 
 the father of the child, and the child was declared a bastard. 
 Where husband and wife lived apart, at a distance of only six 
 miles, non-access under the circumstances of the case was rightly 
 presumed.^ 
 
 The legitimacy of a child is therefore a question of fact, to be Legitimacy a 
 decided one way or the other, according to the evidence produced fact. 
 to support or rebut it. The law on the subject has been thus 
 summed up : — A child born of a married woman is, in the first Summary, 
 instance, presumed to be legitimate. The presumption thus estab- 
 hshed by law is not to be rebutted by circumstances which only 
 create doubt and suspicion ; but it may be wholly removed by 
 proper and sufficient evidence by showing that the husband was 
 (i) incompetent ; (2) entirely absent, so as to have had no 
 intercourse or communication of any kind with the mother ; 
 (3) entirely absent, at the period during which the child must, in 
 the course of nature, have been begotten ; or (4) only present under 
 such circumstances as afford clear and satisfactory proof that 
 there was no sexual intercourse. Such evidence as this puts an 
 end to the question, and establishes the illegitimacy of the child 
 of a married woman.' 
 
 According to English law there is no fixed period of utero- Ko fixed 
 gestation, or the length of time which elapses from the concep- gestation ia 
 tion of the foetus to the birth of the child ; and the question in ^"s"'*' i*^' 
 each case will be determined by the weight of the evidence offered.'' 
 
 1 5 CI. & F. 163 ; See also The Barony of Saye and Sele, i CI. & F. 507 ; Rar- 
 grave v. Hargrave, 9 Beav. 552 ; Sibbett v. Ainsley, 3 L. T. 583 ; and Ourney v. 
 Chirney, 8 L. T. 380. ^ Ulverstone Union v. Fark, 53 J. P. 629. 
 
 ^ Per Lord Latigdale iu Margrave v. Hargrave, 9 Beav. 55^1 555- 
 * Gardner Peerage Claim, cited 5 CI. & F. 264, Le Marchant. See, however, 
 
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484 PARENT AND CHILD. [paet ii. 
 
 Legitimation In most countries where the civil or canon law has made its 
 matrinwnium, inflnence felt, the marriage of the parents of children born before 
 marriage and recognized to be their ofiFspring operates to legiti- 
 mate those children, and places them on an equal footing with 
 those born during wedlock in all respects affecting status and 
 property, and gives a wide effect to the maxim fater est quern 
 Eot recognized nupticB clemonstrant. The law of England has steadily refused to 
 law. recognize this process of legitimation. As far back as the reign 
 
 statute of of Henry III., the bishops desired to introduce the canon law 
 Merton. , „ / . . . , f . ^ , , 
 
 rule 01 legitimation by subsequent marriage, and sought the con- 
 sent of the great barons to the proposed change, but the latter 
 unanimously refused to permit it, saying, Quod nolunt leges 
 Anglim wMtare qtm usitatce sunt et approhatm} From that day 
 to this the law has never admitted the legitimacy of those born 
 before the marriage of their parents, whether born in England or 
 in a country permitting legitimation by subsequent marriage, so 
 far as succession to English land is affected ; in other words, for 
 the purpose of succession to real estate the foreign status of 
 legitimacy by the subsequent marriage of the parents is not 
 recognized by the law of England.^ As regards personal pro- 
 perty this rule does not hold good under all circumstances. 
 
 There seem to be four principles to be extracted from the 
 English law with reference to the effect of the status of legiti- 
 macy of children conferred by the after-marriage of parents, and, as 
 usual, they are not conspicuous for their clearness or consistency. 
 Real property. ^ j -^ As to Meal Property. — Where a person who claims real pro- 
 property in perty as heir was not born in lawful wedlock (natus ex justis 
 bebominiaw- ■W'MpiMs), his status of legitimacy by the after-marriage of his 
 fnl wedlock, parents in a country conferring such legitimacy upon him, will 
 
 not be recognized by the law of England.' 
 Personal (2) ^^ to Personal Property. — Where a claim is made to per- 
 
 property. sonal property ah intestato by a person born before the marriage 
 mate by law of of his parents in a country whose laws do not recognize legitima- 
 
 Code Civil, Arte. 312 and 314 ; ante, p. 477. The ordinary period of gestation is 
 deemed to be 270-275 days, and where a ctiild was horn 276 days after the last oppor- 
 tunity of sexaal intercourse between husband and wife, it was adjudged under the 
 circumstances of the case to be a bastard: JBosvilev. Att.-Gen., 12 P. D. 177. No 
 doubt if this child had been born in France, the presumption of its legitimacy would 
 have been deemed irrebuttable. 
 
 1 Stat. Mert. 20 Hen. III. c. 8 (1235). "Ac rogaverunt omnes Episcopi 
 Magnates, ut consentirent, quod nati ante matrimonium essent legitimi, siout illi qui 
 nati sunt post matrimonium, quantum sd successionem hereditariam, quia eoclesia tales 
 habet pro legitimis. Et omnes Comites et Barones unS voce responderunt. Quod nolunt 
 leges Anglite mutare, quse usitatse sunt et approbatse." 
 
 ^ Be Goodman's Trusts, 17 Ch. D. 266. Per Lush, L.J., summing up the effect 
 0! Sirtu'histle v. VardUl, 2 Gl. & F. 571 ; 7 CI. & F. 895. 
 
 ' BirtwTiisth v. Varditt (ubi sup.). See the converse case of Munro v. Mwnro, 7 
 CI. & F. 842, wbioti decided that a child illegitimate by English law, but legitimate by 
 Scotch, took as lawful heir to entailed estates in Scotland. 
 
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CHAP. i.J LEGITIMACY. 485 
 
 tion by the after-marriage of his parents, who subsequently inter- domicU of 
 marry in a country whose laws do recognize it (whether domiciled be legitimated 
 or not in the latter country), such claim will be refused, as the ^J' ^"''^'^i"?"' 
 
 •' ' , . . marriage of 
 
 law of England does not recognize the legitimacy of the claimant, parents. 
 on the ground that being illegitimate by the law of his domicil of 
 origin, he is to be taken to be illegitimate by the law of this country.^ 
 
 (3) Where a claim is made to personal property a& intestato by Person bom 
 a person born before the marriage of his parents, and his father permitting 
 was domiciled ^ in a country whose laws recognize legitimation by ^^^^^^fquens 
 the after-marriage of his parents both at the date of his birth matrimmium 
 
 ,Tn, . i-i- !!• -Ill legitimate 11 
 
 and at the date of the marriage 01 his parents, such claim will be father is 
 acceded to, as the law of England recognizes the legitimacy oi^^^^^^j^^^ 
 the claimant, on the ground that being legitimate by the law of *'^^^ country. 
 his domicil of origin he is to be taken as legitimate by the law of 
 this country.' 
 
 (4) As to real and personal property : Where a claim is Eeai and per- 
 made to real or personal property not as heir or ab intestato, but when claim of 
 under a testamentary disposition by way of specific devise,^ or ^ggjgnated as 
 bequest by a person (as for instance by a "son" or "child-" of "child" 
 
 the testator) born before the marriage of his parents, who are testamentary- 
 domiciled at the date of the birth and subsequent marriage in ^geded'to 
 the father's country, whose laws recognize legitimation by after- 
 marriage of parents, such claim will be acceded to, as the law of 
 England recognizes his status of legitimacy, but not under other 
 circumstances.^ 
 
 There does not, however, seem to be any valid ground for the 
 exclusion of children born in a country not recognizing their 
 
 ' The effect of the cases of Shedden v. Patrick, i Maoq. H. L. Cas. 535, and Be 
 Wright's Trusts, 25 L. .J. Ch. 621 ; iJe Ooodman's Trusts, 17 Ch. D. 266, reversing 
 14 Ch. D. 619. See Me Grove, Vaucher v. Solicitor to the Treasury, 40 Ch. D. 216. 
 
 ^ If the parents have different domioils (as may happen when they are not married), 
 the authorities show that the domicil of the father and not that of the mother is to be 
 regarded. See Munro v. Blunro, 7 01. & F. 842 ; Udny v. Udny, L. R. i H. L. Sc. 
 441. 
 
 ' Re Goodman's Trusts (uhi sup.) ; Re Grove, Vaucher v. Solicitor to the 
 Treasury {uhi sup.) These cases appear to have altered the law on this point, and to 
 practically overrule Boyes v. Bedale, i H. & M. 798. They break the continuity of 
 the authorities with the exception of Skottowe v. Young (L. E. 1 1 Eq. 474), which 
 itself is opposed to the principles laid down in Thompson v. The Advocate General, 
 12 CI. & F. I, in which case it is put as a general principle that personal property in 
 England follows the law of the domicil of the testator or intestate. But even these 
 decisions do not remove the many inconsistencies yet existing under the present state 
 of the law ; for a man may be legitimate in one country and illegitimate in another ; 
 and in one and the same country be legitimate or illegitimate, as the property happens 
 to be real or personal ; and as to personal property alone, legitimate or illegitimate, 
 where he claims ah intestato as personal representative of the intestate (whether as 
 child or not) or under a will in which he is described as a " child " of the testator, or 
 raider one by which he can take as "child " of his parents. 
 
 ^ Be Grey's Trusts, Grey v. Stamford, [1892] 3 Ch. 88. 
 
 ^ Goodman v. Goodman, 3 Giff. 643 ; see Anderson v. Atldnson, 21 Ch. D. 100 ; 
 Be Goodman's Trusts (uhi sup.); Andros v. Andros, 24 Ch. D. 637; Be Grove, 
 ~Vaucher v. Solicitor to the Treasury (ubi sup.) ; Be Grey's. Trusts, Grey v. Stamford 
 {ubi sup.). 
 
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486 
 
 PARENT AND CHILD. 
 
 [PAET U. 
 
 The atter-mai- 
 riage must be 
 lawfnl. 
 
 Legitimation 
 by imperial or 
 papal rescript. 
 
 Domicil of 
 children. 
 
 Legitimate 
 children. 
 Domicil of 
 origin domicil 
 of father. 
 Domicil of 
 infant changes 
 with domicil 
 of father. 
 
 Domicil of 
 fatherless 
 infant domicil 
 of mother. 
 
 legitimation, by the after-marriage of their parents, who become 
 domiciled in a country which does so recognize it. 
 
 Bat the after-marriage "of the parents, to bring about the 
 legitimation of their ante-nati children, must be lawful in its 
 inception by the laws of the country in which, while domiciled, 
 they contract the marriage which so legitimates their offspring.^ 
 
 There is nothing really analogous to legitimation by imperial 
 (afterwards papal) rescript in the law of England ; though 
 Blackstone does mention the possibility of legitimation of 
 bastards by Act of Parliament in cases where the parents have 
 not married subsequently to the birth of their children, as was 
 done in the case of the bastards of John of Gaunt, Duke of 
 Lancaster.^ 
 
 The last point more particularly to be discussed is the domicil 
 of the children. This falls naturally into three sub-divisions — 
 (i) legitimate children ; (2) legitimated children ; and (3) ille- 
 gitimate children. The first two only will be here discussed ; the 
 third will be reserved for the chapter on illegitimate children.' 
 In elucidating this question, Mr. Dicey 's valuable work on Domicil 
 has been laid under contribution. 
 
 (i) In the case of a legitimate infant born during his father's 
 lifetime, the domicil of origin of the infant is the domicil of the 
 father at the time of the infant's birth." 
 
 The domicil of a legitimate infant is, during the lifetime of 
 his father, the same as, and changes with, the domicil of his 
 father.* Thus, under the Poor Law," a legitimate infant under 
 sixteen takes and retains its father's settlement until it acquires 
 another for itself when over the age of sixteen.'' 
 
 The domicil of an infant whose father is dead is, during the 
 lifetime of the infantas mother, the same as, and changes with, the 
 domicil of the mother.^ Thus, if after the death of the 
 father, an unmarried infant lives with its mother, and the mother 
 acquires a new domicil, it is communicated to the infant.' This 
 capacity of the mother to change her infant child's domicil is 
 subject to certain exceptions : — i. The domicil of the infant is 
 not changed by the marriage of its mother, so that its domicil 
 
 ^ Lapsley v. Grierson, i H. L. Gas. 498. A death-bed marriage of a man domi- 
 ciled in Scotland has by the law of that country the effect of legitimating his offspring. 
 The Lauderdale Peerage Case, 10 App. Gas. 692. 
 
 2 I Bl. Gom. 459 
 * Dicey, Dom. 96 ; 
 
 s. 10 (sub-ss. 3, 4). 
 ^ i)icey, Dom. 97 ; 
 
 L. R. I P. &D. 611. 
 
 Udny V. 
 
 See^osi, chap. vi. 
 Udny, L. JR.. i So. App. 441. See 33 & 34 Vict. 0. 14, 
 
 iSomerville v. Somerville, 5 Ves. 749 (a) ; Sharpe v. Crispin, 
 ^ 39 & 40 Vict. c. 61, s. 34. 
 ' See Guardians of Reigate Union v. Guardians of Croydon Union, 14 App. Gas. 
 465. ^ Dicey, Dom. 97 ; Potinger v. Wiglitman, 3 Mer. 67. 
 
 ~ ■ 10 CI. & F. 42, per Lord Campbell. 
 
 Johnstone v. Beattie 
 
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CHAP. I.] LEGITIMACY. 487 
 
 should follow that of its stepfather.' But this may be considered 
 too sweeping au assertion ; and it may be held that a mother on 
 her second marriage has power to change her infant children's 
 domicil ; but the change will not necessarily flow from the fact 
 of her marriage, but as the result of the exercise by her of a 
 power vested in her for the welfare of her infant children ; ^ 
 therefore, if on her second marriage, which necessitates a change 
 in her own domicil, she abstains from exercising such power, her 
 children will retain the domicil they possessed at the date of her 
 second marriage.^ One method of abstaining from exercising 
 such power is by leaving the children not for temporary purposes 
 in their original domicil.* ii. The change of an infant's home by 
 a mother will not, if made with a fraudulent purpose, change the 
 infant's domicil.'^ 
 
 (2) In the case of a legitimated person, the domicil of origin Domicil of 
 is the domicil which his father had at the time of such person's mated child' '" 
 birth ; ^ and this is so whether the domicil of the father was one *^*' °* father. 
 acquired by his own choice, or was his domicil of origin." 
 The domicil of a legitimated infant is, during the lifetime 
 of his father, the same as, and changes with, the domicil of his 
 father,^ and if the father changes his domicil during the 
 infancy of his child, the altered domicil does not, it would seem, 
 become the domicil of origin of the infant child. ° 
 
 As has already been seen,'" the domicil of the father at the 
 birth of the antenatvs has a most important effect upon the 
 capacity of such antenattos to be legitimated. Thus, if the father's 
 domicU at the birth of the antenattis happens to be in a country in 
 which legitimation by after-marriage of parents is recogmzed, the 
 antenatus will, on the after- marriage of his parents, become legiti- 
 mated." But if the father's domicil at the birth of the anteTMtus 
 be in a country in which legitimation by after-marriage is not 
 recognized, the antenatus will always and for all purposes be 
 held illegitimate, though his parents intermarry even in a country 
 recognizing legitimation by such after-marriage.'^ 
 
 ■' RyaU V. Kennedy, 40 N. y. (Supreme Court) 347. It is Mr. Dicey's opinion that 
 this case would probably be followed by the English Courts. 
 
 2 Brown v. Lynch, 2 Bradf. Surrog. Eep. (N. Y.) 214 ; Re Beaumont, [1893] 
 3 Ch. 490. ' Be Beaumont (vhi sup.). ■* Be Beaumont (uK sup.). 
 
 ^ This exception is not based on any express decision ; but some foreign writers of 
 authority support the contention. See Botinger v. WightrnMi {ubi sup.). 
 
 * Dicey, Dom. 96. Vdny v. Vdny {uhi sup.). 
 
 ^ Be M'O-eigJa, Baxtonv. M'Oreight, 30 Gh.D. 16s. 
 
 ^ Dicey, Dom. 97. iSomerville v. Somerville (ubi sup.); fiharpe v. Crispin (ubi 
 sup.). ' Per Chitty, J., in Ee CraignisJi, Craignish v. Hewett, [1892] 3 Ch. 180. 
 
 1" See ante, p. 485. " Munro v. Munro, 7 CI. & F. 891. 
 
 12 Shedden v. Batriek, i Macq. H. L. Cas. 535 ; St7-athmore Peerage Case, 4 Wils. 
 & Sh. Appdx. 5, 89 ; Boss v. Boss, 15th May 1827, reversed i6th July 1830, 4 Wils. 
 & Sh. 289 ; Be Goodman's Trust, 17 Ch. D. 266. 
 
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488 PARENT AND CHILD. [part ii. 
 
 Legitimacy In order to afford facilities to persons about whose legitimacy 
 
 Act, 1858. doubts might be entertained, an Act was passed in 1858, called 
 " The Legitimacy Declaration Act " ' by force of which " any 
 natural born subject of the Queen, or any person whose right to 
 be deemed a natural born subject depends wholly or in part on 
 his legitimacy, or on the validity of a marriage, being domiciled 
 in England or Ireland, or claiming any real or personal estate 
 situate in England, may apply by petition to the Court for 
 Divorce and Matrimonial Causes, praying the Court for a decree 
 declaring that the petitioner is the legitimate child of his parents, 
 and that the marriage of his father and mother, or of his grand- 
 father or grandmother, was a valid marriage, or for a decree 
 declaring either of the matters aforesaid ; and any such subject 
 or person, being so domiciled or claiming as aforesaid, may in 
 like manner apply to such Court for a decree declaring that his 
 marriage was or is a valid marriage, and such Court shall have 
 jurisdiction to hear and determine such application, and to make 
 such decree declaratory of the legitimacy or illegitimacy of such 
 person, or of the validity or invalidity of such marriage, as to 
 the Court may seem just ; and such decree, except as hereinafter 
 mentioned, shall be binding to all intents and purposes on her 
 Majesty, and on all persons whomsoever." ^ 
 
 The validity of a marriage celebrated abroad may be the 
 subject-matter of a petition under this Act.^ 
 Object of the The object of this Act is strictly to obtain a declaration of 
 tect and not legitimacy of the petitioner, and not to enable others to bastardize 
 petitioner.*''^ him.' The Court will not entertain a petition which is practi- 
 cally for a nullity of marriage,^ or investigate or decide upon a 
 claim to a title of honour,^ nor will it declare that the petitioner 
 is heir-at-law to another, or that some third person is illegitima;te.' 
 If the petitioner is an infant, his guardian must be one who has 
 no interest in his being declared illegitimate.* A prayer for a 
 declaration of legitimacy will not be allowed to be joined in an 
 Parents not action for probate.' A petition of this sort not being of the 
 
 petition to give nature of proceedings instituted in consequence of adultery, a 
 
 evidence of 
 
 non-access. i„,i„„ir'j. 
 
 ^ 21 & 22 Vict. c. 93. 
 
 ^ Sect. I. By sect. 6 the Attorney-General is to be made respondent in the 
 proceedings. By sect. 7 the Court may cite other persons than the Attorney-General, 
 and by sect. 8 the rights of persons not cited are saved. 
 
 ^ Gardner v. Gardner, 60 L. T. 839 (Gretna Green marriage). 
 
 * Be Chaplin, L. E. i P. & D. 328. 
 
 = Johnstone v. The, Att.-Gen., 43 L. J. P. M. & A. 3. 
 
 « Frederick v. The Att.-Gen., L. R. 3 P. & D. 196. 
 
 ' Manselv. The Att- Gen. , 2 P. D. 265. 
 
 8 Me Chaplin [uhi sup. ). 
 
 ' Warter v. Warter, 15 P. D. 35. 
 
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CHAP. I.] LEGITIMACY. 489 
 
 father would not be allowed to give evidence of non-access so as 
 to bastardize his issue.' 
 
 In proceedings under this Act the Attorney-General must first Practice. 
 be cited ; then the parties on applying to hear the case set down 
 for trial must lay the state of the case by afiBdavit or otherwise 
 before the Registrar, who will direct whether any, and if sOj what 
 other parties shall be cited to see proceedings.^ A person not 
 cited, who has no real interest in opposing the petition for a 
 declaration of legitimacy, will not be allowed to intervene.^ The 
 Court has jurisdiction to order a person who has been cited and 
 has appeared and opposed the petition to pay the costs of the 
 petitioner, but not those of the Attorney-General.'' 
 
 ^ See Chidrdians of the Nottingham Union v. Tomlcinson, 4 C. P. D. 343. See ante, 
 pp. 477, 478,fbr a discussion of this point. 
 
 2 Brinkley v. Att-Gen., 14 P. D. 83. This practice is to be followed in proceedings 
 under The Greek Marriages Act, 1884 (47 & 48 Vict. c. 20), Scaramanga v. Att.-Oen. 
 {Ibid.). 5 Upton v. Att.-Gen., 32 L. J. P. M. & A. 177. 
 
 * Bain -7. Att.-Gen., [1892] P. 217, 261. 
 
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CHAPTEH II. 
 
 RIGHTS AND OBLIGATIONS OF PARENTS IN RESPECT 
 OF THE PERSONS OF CHILDREN. 
 
 PAGE 
 
 Right- of the Fathbb to the Custody of the Child ■ 491 
 
 Common Law Right op thb Father 493 
 
 Right op the Mother aptbr the Death op the Father 493 
 
 Guardianship op Infants Act, 1886 494 
 
 Relinquishment op Control by Parents .... 495 
 Forfeiture of Right op Control by Parents . . . 495 
 Enforcement op Right of Parents : Habeas Corpus . 496 
 Application to the Court op Chancery for Appoint- 
 ment op Guardian . 498 
 
 General Right of Parents to the Control and Custody 
 
 OF THEIR Children till Majority .... 499 
 
 Custody of Children Act,- 1891 500 
 
 intbrpeeence by thb courts with the parents' control 50i 
 By thb Court of Chancery under its General 
 
 Jurisdiction 502 
 
 Unfitness of the Father 503 
 
 Unfitness op the Mother 504 
 
 Abdication op Parental Authority .... 505 
 
 Removal op Ward of Court out op the Jurisdiction 505 
 By the Court under its Statutory Jurisdiction : 
 
 Talpoued's Act, 1839 506 
 
 Infants' Custody Act, 1873 507 
 
 Criminal Law Amendment Act, 1885 . . . 509 
 
 Guardianship of Infants Act, 1886 .... 510 
 
 Enlarged Powers op Mother . . . . 510 
 
 Poor Law Act, 1889 511 
 
 Custody op Children Act, 1891 ..... 511 
 
 By the Divorce Court: Matrimonial Causes Act, 1857 512 
 
 Matrimonial Causes Act, 1878 513 
 
 Guardianship op Infants Act, 1886 .... 514 
 
 Summary Jurisdiction (Married Women) Act, 1895 515 
 
 Duty op Parents to Protect Children .... 515 
 
 Duty of Parents to Maintain Children .... 516 
 
 Liability op Father 516 
 
 Liability of Mother 517 
 
 Liability op Parents foe Necessaries Supplied to 
 
 Children . . .' 518 
 
 Liability of Father where Mother Lives Apart 
 
 voluntaeily s'q 
 
 Liability of Father where Mother Lives Apaet 
 
 BECAUSE of His Misconduct 520 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 491 
 
 PAGE 
 
 Duty op Paeents to Educate Childeen— 
 
 Seculae ; Elbmbntaey Education Acts, 1870 and 1876 521 
 
 Obligation Extends only to Elementaey Education 521 
 Religious : Faith op Fathbe Pbima Facie Faith op 
 
 Child 523 
 
 Conteact op Fathee to Being up a Child in a Pae- 
 
 TicuLAE Faith not Binding 523 
 
 Eights op Widowed Mothee 524 
 
 inteepebencb op couet whbeb parent has abandoned, 
 
 foepbited, oe waived rights 525 
 
 Examination op Child by the Couet .... 526 
 
 SUMMAEY 527 
 
 Section i . 
 Rights of Parents. 
 
 Bight of the Father to the Custody of the Child. — The relationship 
 of parent and child is that of a guardian and his ward ; it is a 
 strong and powerful tie. A proper regard for, nay, the sanctity 
 of, this tie is necessary for the cohesion of States as well as of 
 families. It is a natural instinct which impels those who have 
 brought children into the world to shield, nourish, and support 
 them till their early weakness has been changed into mature 
 strength. It is this instinct which has ever assigned children, 
 equally with the other weaker members, to the care and pro- 
 tection of the head of the family, whether their father or their 
 paternal grandfather. The right of the father to the custody of 
 the children was due to his superior position in the family house- 
 hold ; he was the strongest person, and could best assert his right 
 to their custody, and he won the means of their support ; thus, 
 many reasons combined to assign to him the arbitrament of their 
 destinies. 
 
 The power of the English father over his children was never so Difference be- 
 wide or tyrannous as the patria potestas of the Eoman father, paternal oon- 
 " The Eoman law was distinguished for the stern severity with ^paMatotestas 
 which it upheld the paternal authority. It gave the father, in of Rome. 
 
 fact, absolute power The atrocious power of putting his 
 
 children to death, and of selling them three times in open 
 market .... was recognized by the Twelve Tables, and con- 
 tinued to be the law for many ages. We find, however, that long 
 before the reign of Justinian it had been very considerably 
 modified. Bynkershoek is of opinion that the power of life began 
 to grow into disuse in the reign of the Emperor Hadrian, of whom 
 it is recorded that he banished a man for having, while out hunt- 
 ing, killed his son, who carried on a criminal intercourse with his 
 
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492 PARENT AND CHILD. [part ii. 
 
 stepmother ; and the reason alleged is, ' qiiod latronis tnagis quam 
 patris jure eum interfecisset ; nam patria putestas in pietate debet, 
 11011 atrocitate, consistere.' " ' 
 
 In the time of the Emperor Oonstantine such an act was 
 visited with the punishment affixed to a parrieiditim, ;^ and by 
 degrees the powers of the father were much modified. " The 
 power of a parent by our English laws, though much more 
 moderate, is still sufficient to keep the child in order and obedi- 
 ence ; and it is laid down that a father may lawfully correct him, 
 being under age, in a reasonable manner ; for this is for the 
 benefit of his education."^ This right of lawful correction is 
 jealously watched by the Courts, and if the parent exceed the 
 bounds of moderation and inflict cruel punishment upon the 
 child, he may be severely punished ; if the child in consequence 
 lose its life, he may have to stand his trial for its murder.* The 
 American law on this branch of the subject is practically the same 
 as the English.^ 
 Guardiauehip In popular language, the father or mother is the "natural 
 y na uie. guardian " of their children ; but according to the strict common 
 law meaning, the term "guardian by nature" applied primarily to 
 the father of an heir apparent ; " and this feudal guardianship 
 terminated when the heir (whether male or female) attained 
 the age of fourteen. But this strict common law meaning has 
 for a long period been merged in the wider and more popular 
 sense of the term " natural guardian," namely, that nature marks 
 out the parent as being the rightful person to have the control 
 and custody of his child.' 
 
 The control of the parent (father or mother) lasts under 
 ordinary circumstances, and in all cases ends, when the child 
 attains the age of twenty-one, or marries under that age ; ^ and a 
 father and now a mother cannot appoint by will a guardian for a 
 child to continue after the latter has attained his majority.' But 
 if, as will be seen more particularly lower down,'" any dispute 
 arise as to who should retain the custody and control of the 
 child, and the child has attained the age of discretion — not less 
 than fourteen years for a boy and sixteen for a girl " — the Court 
 may, if it think fit, allow him to exercise a discretion and with- 
 
 ' Forsyth, Oust. Inf. e. 2. ^ Cod. ix. tit. 17. 
 
 ^ I Bl. Com. 452. <■ See Beg. v. Coude, 10 Cox, C. 0. 547. 
 
 ^ Sch. Dom. Eel. s. 245. 
 
 ^ The mother and other ancestors could be guardians. 
 
 ' Co. Litt. 88 b, Harg. notes, 12, 13. See post, Part III. 0. 11. 
 
 8 I Bl. Com. 453 ; Co. Litt. 88 b. Harg. ; Korsyth, Gust: Inf. o. 5 ; i?e Agar-Ellis, 
 Agar-JEllisY. Lascelles, 24 Ch. D. 317. 
 
 ^ See 12 Car. II., c. 24, s. 8. '" Post, p. 499. 
 
 11 Beg. V. Bowes, 30 L. J. M. 0. 47 ; S. C. 3 L. T. 467 ; Mallinson v. MalHnson, 
 I P. &D. 221. 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 493 
 
 draw himself from the control of his parent. It seems, however, 
 indisputable that unless interfered with by the Courts, the patria, 
 potestas may be exercised by way of legitimate control over 
 infant children. ; but that on majority they become emancipated 
 by arriving at years of discretion, or the time appointed by law 
 for the loosing of parental fetters. 
 
 The control of a parent over its infant child's marriage is Control of 
 clearly established by legislative sanction in the various Marriage ohifi?s "^^'^ 
 Acts.' The control is exercised by granting or withholding '^™^se- 
 consent. It is enough here to say that such consent must be 
 honestly given, and no private advantage to the parent or 
 guardian arising out of the marriage will have effect given 
 to it.' 
 
 By the common law of England the father has the right to the Common law 
 custody of his infant children as against third parties, and even tcf custody o" 
 as against the mother,' though the child be an infant at the children, 
 breast.^ This right of the father enables him to delegate his 
 authority over the child to a third person,' as to a tutor or 
 schoolmaster, who, as against all the world, the father himself 
 excepted, stands in loco pourentis to the child committed to his 
 charge and custody.^ The ante-nuptial contract of a father to give Executory 
 up the children of the intended marriage into the control of their f™her to sur- 
 mother is deemed to be against public policy, and will not be ™^der control 
 
 . ° "^ . . *i"l custody of 
 
 enforced by the Courts.' Such contracts and stipulations to be children not 
 executed in the future are bad, for they not only discount the 
 future, but are mischievous in their operation on family life.' 
 But the father on separating from his wife can enter into an 
 arrangement with her to have tlie custody of his child or 
 children.' 
 
 During the lifetime of the father a mother, as such, was en- Eight of the 
 titled to no power, but only to reverence and respect ; '" but on death of the 
 the death of the father, without having appointed a testamentary *^*''®''- 
 
 1 4 Geo. IV. c. 76 ; 7 Wm. IV. and i Vict. 0. 22 ; 3 & 4 Vict. c. 72 ; 19 & 20 
 Vict. c. 119. For more ample discussion of this subject, see ante, Part I. Husband and 
 Wife, chap, vi.- ^ Hamilton v. Mohun, 2 Vern. 652. 
 
 3 Ex parte Skinner, 9 Moo. 278 ; Ex parte Hopldns, 3 P. Wms. 154. " The law 
 makes the father the guardian of his children by nature and nurture." — Per Lord Eldon 
 in WeUeisley v. Duke of Beaufort, 2 Euss. i, 21 ; Constable v. Constable, 24 W. R. 649. 
 
 * Bex. V. De Manneville, 5 East, 221 ; Be Thomas, 22 L. J. Ch. 1075 ; Ex parte 
 Yowng, 26 L. T. 92 ; see also Cartledge v. Cartledge, 31 L. J. P. M. & A. 85. 
 
 5 Ex parte M'OleUan, i Dowl. 81. 
 
 8 See Be iiuttor, 2 Fost. and Fia. 267. 
 
 ' Be Agar-Ellis, Agar-Ellis v. Lascdles, 10 Ch. D. 49. 
 
 8 Vansittart v. Vansittart, 27 L. J. Ch. 290. 
 
 8 36 Vict. 0. 12, s. 2 ; see post, p. 508, 
 
 w I Bl. Com. 453. Under the law of Rome a mother, though entitled to respect, had 
 even fewer privileges than an English mother had up to quite lately ; thus, she was not 
 her children's legal ^tural guardian on the death of their father, nor could she be legally 
 appointed their guardian by will. Cod. viii. tit. 47, s. 4 ; Dig. xxvi. tit. 2, 8. 26. 
 
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iU 
 
 PARENT AND CHILD, 
 
 [part II. 
 
 statutory 
 rights of the 
 mother. 
 
 Guardianship 
 of Infants Act, 
 
 Co-ordinate 
 right of mother 
 to appoint 
 testamentary 
 guardian. 
 
 Eemoval of 
 mother. 
 
 guardian,' slie was entitled to the custody of her infant children, 
 and in this respect was altogether in the place of the father, with 
 all his rights and responsibilities, for she is their guardian by 
 nature and nurture ; " but where a testamentary guardian had 
 been appointed, a mother, as such, had no right to interfere with 
 him,' nor with a guardian appointed by the Court of Chancery.* 
 A mother has even as against the father a statutory right to the 
 custody of her child under the Divorce Acts,^ and the Infants' 
 Custody Act, 1873," where it is manifestly for the child's benefit 
 that she and not the father should have the care and control of it. 
 Under the Guardianship of Infants Act, iSSS,' the mother may 
 apply to the Court for an order regarding the custody of her 
 infant child, and the right of access thereto of either parent, 
 having regard to the welfare of the infant and to the conduct 
 of the parents, and to her wishes as well as those of the father ; 
 and the Court has power to make an order respecting the costs 
 of the mother and the liability of the father for the same or 
 otherwise.' 
 
 A mother could not legally appoint a testamentary guardian 
 for her children," but if the person sought to be appointed was 
 a proper and fit one, the Court was wont not to refuse to pay 
 attention to her wishes.'" But under the Guardianship of Infants 
 Act, 1886, a mother had certain co-ordinate rights of guardian- 
 ship with the father of her infant children ; thus, where the 
 mother survives the father, who has appointed no guardians, she 
 is sole guardian ; or if he has appointed a guardian or guardians 
 she is to be joint guardian with him or them ; " and she may 
 by deed or will appoint a guardian to act after the death of herself 
 and the father of her infant children, or to act jointly with the 
 father if he survives her, and is for any reason shown to be unfit 
 to be the sole guardian of his children.'^ 
 
 The grounds for superseding her guardianship are, improper 
 conduct, such as trying to bring about an unsuitable marriage of 
 her child, a ward of Court," unfitness for her duties," immorality,'^ 
 or disobedience to the decrees and orders of the Court of 
 
 ^ 12 Car. II. c. 24 ; Bee post; Part III. Guardian and Ward, chap. ii. 
 ^ Hyre v. Countess of Bliafteshury, 2 P. Wms. 103 ; 2 W. & T. L. C. 633 ; 
 Villareal v. Jlellish, 2 Swanst. 533 ; noach v. Garvan, 1 Ves. Sen. 158 ; Be Mace, 
 26 L. J. Q. B. 167 ; S. C. 7 El. & Bl. 186. 
 ' Jteynolds v. Teynham, 9 Mod. 40. 
 * See Waine v. Waine, cited Chamb. Inf. 36. 
 
 5 20 & 21 Vict. u. 85,8.35 ; 22 &23 Vict. c. 61, s. 4; 58 & 59 Vict. 0. 39, e. 5(6),. 
 repealing 41 Vict. u. ig, a. 4. ^ 36 & 37 Viot. u. 12. See post, p. 507. 
 
 ' 49 & 50 Vict. c. 27. ^ Sect. 5. 
 
 " Villareal v. Mellish [uU sup.) ^^ Be Kaye, L. R. i Ch. App. 387. 
 
 ^1 49 & 50 Vict. c. 27, s. 2. '^ Sect 3. See post, p. 510. 
 
 ^' Beach V. Oarvan (uli sup.). 
 " Heysham \. Heysham, i Cox, Eq. Cas. 179. ^^ Be Moore, 11 Ir. C. L. i. 
 
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CHAP. 11.] RIGHTS AND OBLIGATIONS (PERSONAL). 495 
 
 Chancery.' Her second marriage does not operate as a necessary 
 supersession,^ and the practice of the Court is to direct a reference 
 for the appointment of a new guardian,^ and under such reference 
 she may be continued as guardian/ or reappointed with others.^ 
 
 Parents cannot enter into an agreement legally binding to Eeiinquish- 
 deprive themselves of the custody and control of their children ; control by 
 and if they elect to do so, can at any moment resume their P*'^^^*^- 
 control over them.^ If, however, as a matter of fact, parents do 
 relinquish their control (whether in pursuance of an agreement or 
 not), and allow others to take charge of and rear them, they will 
 not be permitted, at the hazard of injuring the children, to take 
 them back into their own custody. The interests of the children The oom-ts re- 
 
 gard only tne 
 
 are the sole guides to the Court as to what orders should be made ; interests of the 
 if the restoration to their parents' custody would be of manifest " ' '^°' 
 advantage to them, those in charge of them will be ordered to 
 deliver them up to them, but not otherwise.' 
 
 The parents' right to the custody of their children can only be Forfeiture of 
 determined by their arriving at majority, or by their own conduct, by parents. 
 which brings about a forfeiture of their privileges ; thus, it cannot 
 legally be infringed by the appointment by a stranger of a 
 guardian to them during the father's lifetime * ; yet a father may 
 so act as to render such appointment effectual ; thus, where a 
 benefit is given to a father on condition of his resigning the 
 management of his children, he will not be permitted to receive 
 the gift without complying with the terms of it, and on his sub- 
 mission a person will be appointed to act as guardian, although 
 the mere acceptance of the gift by the father will not be con- 
 sidered as an election to abide by the will, and to waive his 
 parental right, unless he knows that he is making the elec- 
 tion,' If a father has not so acted as to alter the expectations 
 and fortunes of his child, he will be allowed to rescind and 
 abandon any agreement for surrendering the custody of his child 
 that he may have made.'" If a legacy has been left on condition 
 that a father surrender the custody of his child to guardians 
 appointed by the testator, he must, if he insist upon retaining 
 the infant in his own care^ renounce the legacy." But if a father 
 
 1 Me Newlery, L. R. i Ch. App. 263. 
 
 ^ Villareal v. Hellish (ubi sup.). ^ Anon. 8 Sim. 346. 
 
 ■* Ee Gornall, i Bear. 347 ; Jones v. Powell, 9 Beav. 345. 
 
 ^ Austin V. Austin, 34 Beav. 257. 
 
 ' Beg. T. Barnardo {Tye's Case), 23 Q. B. D. 305 ; Beg. v. Barnardo (Qossage's 
 Case), 24 Q. B. D. 283. ' See Beg. v. Gyngall, [1893] 2 Q. B. 242. 
 
 * Ex parte Hopkins, 3 P. Wms. 152. The appointment of such a guardian is in 
 law inoperative. 
 
 ' Macq. Inf. 135 ; Colston v. Morris, Jao. 257 n ; see also Poioell v. Cleaver, 
 2 Bro. C. C. 500. 10 See Hill v. Oomme, 8 L. J. Ch. 350. 
 
 11 See Potts V. Norton 2 P. Wms. no n. 
 
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496 PARENT AND CHILD. [part ii. 
 
 intrust the care and custody of his infant children to another, 
 who by will amply provides for their maintenance and education 
 and appoints a guardian for them, and has allowed them to be 
 brought up with expectations founded upon a particular species 
 of maintenance and education, he will not be permitted to remove 
 them from the control of the guardian, if a fit and proper person.' 
 The Court will not in general permit the father to disappoint the 
 expectations of his children ^ in those cases where he has waived 
 his parental right.^ From the foregoing cases it will be seen that 
 the interference of the Court does not proceed upon the ground 
 that the parent has made an election, and must abide by it, but 
 upon the true interests of the children.^ These principles will 
 also be acted upon in the case of the mother after the death of 
 the father. 
 Adoption not The law of England, strictly speaking, knows nothing of adop- 
 nised by the tion, and does not recognize any rights, claims, or duties arising 
 *^' out of such a relation except as arising out of an express or im- 
 
 plied contract. But in so far as the Court of Chancery will in 
 the interests of the children enforce the waiver or abandonment 
 of the control of the father (or mother), up to that point it might 
 be said to countenance the claim of the adoptive parent, not on 
 the ground of any right in the latter, but of the material well- 
 being of the infant.^ 
 How right of This right of the father and the mother to the custody of their 
 tody'of child children is not only recognized, but, if infringed, may be enforced 
 enforced. i^^ legal process. There are now two remedies open to them, 
 (i) Writ of habeas corpus, and (2) Application to the Court of 
 Chancery. 
 Haheas corpus. ( I .) The issue of a writ of habeas corpus proceeds on the fact 
 Jurisdiction in of an illegal restraint, and the person entitled to the legal custody 
 hiltn^lT of the infant, whether the father, mother,^ or other guardian,' may 
 illegal custody g^-,Q q^^ ^^q vrnt without making any previous demand for the 
 possession of the child.' If the custody is found to be illegal, 
 and the applicant is entitled to it, the Court will make an order 
 
 1 Lyons v. Blenkin, Jac. 245. This is a very important case on the subject, and in it 
 Lord Eldon lays down very clearly the rules on which the Court of Chancery should 
 proceed in interfering with parental control. See post, p. 505. 
 
 2 Aiion. Jac. 254 n. ^ Blake v. heigh, Amb. 306. 
 
 * De Manneville y. De Manneville, 10 Ves. 52 ; see also Andrews v. Salt, L. R. 8 
 Ch. App. 622. 
 
 ' Adoption played an important part in Eoman family life ; and many laws were 
 enacted in reference to and in regulation of it. It is to be found in those European 
 systems which have made the law of Rome the basis of their codes. 
 
 ^ Beg. y. Barnardo {Tye's Case], 23 Q. B. D. 305. 
 
 ' Beg. V. Greenhill, 4 A. & E. 624. In this case Coleridge, J., lays down the 
 principle on which the Courts acted in handing over to the parent or guardian an infant 
 too young to make a choice as to its custody. Be Bakewill, 12 C. B. 223; Beg. v. 
 Soioes, 30 L. J. M. C. 47 ; Be Andrews, L. R. 8 Q. B. 153 ; S. C. 42 L. J. 
 Q. B. 99. 8 Ex parte Witte, 13 C. B. 680. 
 
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CHAP. II.] RIGHTS AXD OBLIGATIONS (PERSONAL). 497 
 
 to that effect ; but if neither the applicant nor the custodian is 
 entitled to the custody, the writ will not be confirmed ; the Court 
 will either restore the infant to the custody from which it was 
 taken, or discharge it from that custody, with liberty to return 
 to it. Where the legal custody of the infant is shown to exist, the 
 Court must order it to be delivered over to or remain in that 
 custody.^ Though the father has at 'common law primd facie 
 the right to the custody of his child, and so. is entitled to his 
 writ of habeas corpus, yet since the Judicature Act, 1873 (which 
 provides that the rules of equity in relation to the custody of 
 infants shall prevail), and the Infants' Custody Act, 1873,^ the 
 Court has a discretion to refuse the father this writ in order to 
 remove a child of tender years from the custody of the mother, 
 and other relations whose conduct with regard to the child is im- 
 peached.^ The writ is directed to the person who detains another 
 in custody, and orders him to produce the body of such person, 
 with the day and cause of taking and detaining him.'' This writ 
 was suable not only out of the common law Courts but also out 
 of Chancery," and in the latter instance the equity judges 
 exercised the functions of a common law judge, and were limited 
 by the powers and jurisdiction conferred on the latter.* The 
 jurisdiction of both the common law and Chancery judges on 
 habeas corpus, so far as the subject-matter under discussion is 
 concerned, is in strict law practically confined to the inquiry as 
 to the legal right of the father, or other guardian, including the 
 m.other, to the custody of the child, and to whether the child is in 
 illegal custody without its consent, provided it had attained a 
 certain age. It is no valid excuse for not producing a child in 
 obedience to a writ of habeas corpus to state inability to obey, if 
 such inability is the result of illegal conduct antecedent to the 
 issuing of the writ on the part of the person to whom the writ is 
 addressed, and it is not impossible to produce the body of the 
 child.' If a person to whom the custody of a child has been 
 traced, hands over the child in order to avoid the exigence of a 
 writ of habeas corpus, and if on the issue of the writ the child was 
 likely to be produced, then the writ ought to go.^ 
 
 1 Bexy. Isley, 5 A. & E. 441. ^ ^6 & 37 Viot. 0. 12, s. i. 
 
 » Me Brown {Ethel), 13 Q. B. D. 614. ■* Tidd, Pr. 348. 
 
 ' "The like writ (habeas corpus) is to be granted out of the Court of Chancery, 
 either in the term (as in the King's Bench), or in the vacation ; for the Court of Chancery 
 is crfficina justitice, and is ever open, and never adjourned, bo as the subject, being 
 wrongfully imprisoned, may have justice for the liberty of his person, as well in the 
 vacation time as in the term." — Co. 2 Inst. 55- 
 
 6 Crowley's Case, 2 Swanst. i, 73, 75 ; see also Be Ayar-Ellis, Agar-Ellis v. 
 Lascelles, 24 Ch. D. 317. 
 
 ' Beg. V. Barnardo {Tye's Case), 23 Q. B. D. 305 ; Be Matthews, 12 Ir. C. L. 
 Eep. 233 ; and per Esber, M.R., in Beg. v. Barnardo (^Gossage's Case), 24 Q. B. D. 283. 
 
 * Per Fry, L.J., in Beg. v. Barnardo {Oossage's Case), {ubi swp.). 
 
 2 I 
 
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498 PARENT AND CHILD. [part ii. 
 
 Application to The common law Courts could not, except in flagrant instances 
 
 Chancery. of Unfitness, Control the exercise by the father or the guardian of 
 
 inrildfctira^ his legal rights, and refused the writ.' On the other hand, 
 
 of equity where a cause dealing with the infant's property was before the 
 
 than common Oourt of Chancery, that is, where the infant was a ward of Court, 
 
 ^^^- then other considerations than the mere legal right of custody 
 
 were acted upon, and the custody of the infant might in the 
 
 discretion of the Court be assigned to one who had no legal right 
 
 to it." Since the passing of the Judicature Act,' the principles 
 
 to be applied in dealing with the question of the custody of 
 
 infants by the Queen's Bench and Chancery Divisions, are those 
 
 of equity, and the jurisdiction of both divisions is concurrent.^ 
 
 But where the question was simply as to the legality or illegality 
 
 of the detention of the child, the jurisdiction and power of the 
 
 Court of Chancery were identical with those of the common law 
 
 Courts." 
 
 But the Court of Chancery allowed itself greater latitude in 
 protecting the interests of the children than did the common law 
 Courts; and by the Custody of Children Act, 1891,^ both Chancery 
 and Common Law Divisions of the High Court are to administer 
 equitable principles in exercising their jurisdiction in habeas cor'pus. 
 Application by Applications by the mother to take children out of their 
 father's custody, except on sufficient ground, have never been 
 successful.' 
 Application to (2) The parent may obtain relief by application to the Court 
 
 the Court of ^ ' . , , . ."' ^ , a , . ■, 
 
 Chancery for 01 Chancery, either by sumg out a writ of kaheas corpus, which 
 a^guaxdSn" ° ^^7 issue in vacation time,' or by petition,." whether a cause 
 affecting the infant is pending or not." Where a mother 
 unjustifiably takes her infant child out of the custody of the 
 father, he may petition to have its custody delivered up to him ; 
 and in such petition the Court has power to make provision 
 for access to the child. '^ 
 
 Where there is no cause pending, in order to give the Court 
 
 ^ Me Andrews L. R. 8 Q. B. 153. Personal cruelty towards a child, or manifest 
 injury towards the child's prospects, were really the only 'grounds on which the common 
 law Courts could deprive the father of the custody of his child. See the cases of Rex v. 
 Greenhilt, 4 A. & E. 624, and Exparte Skinner, 9 Moo. 278, where, though the father 
 was of bad character, he was allowed to resume the control of his child, and Rex 0. De 
 Manneville, 5 East, 221 ; Rex v. Delaval, 3 Burr. 1436 ; and Reg. v. Clarice, 7 El. & 
 Bl. 186 ; S.C. 26 L. J. Q. B. 167. 
 
 ^ See Wellesley v. Dulce of Beaufort, 2 Enss. i ; and Andrews v. Salt, L. R. SCh. 
 App. 622. ^ 36 & 37 Vict. c. 66, ss. 16, 25, sub-s. 10. 
 
 ^ Re Ooldsioorthy, 2 Q. B. D. 75. 
 
 ' Per Brett, M.R., in Re Agar-Ellis, Agar-Ellis v. Lascelhs, 24 Ch. D. 317, 327. 
 
 " 54 Vict. c. 3. See^osi, p. 511. 
 
 ' Macph. Inf. 159. This subject will be found more fully discussed lower 
 down, pp. 506 et seq ^ lie Spence, 2 Ph. 247. 
 
 ' Crowley's Case, 2 Swanst. i. ^^ Lyons v. Blenldn, Jac. 245. 
 
 " Re Spence (ubi sup.). ^^ Constable v. Constable, 24 W. E. 649. 
 
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CHAP. II.] EIGHTS AND OBLIGATIONS (PERSONAL). 499 
 
 more complete power, the infant should he made a ward of Court 
 by the parent or some other person constituting himself or herself 
 a trustee for the infant, by paying a sum of money (a small 
 amount would suffice) into Court, and making an application by 
 summons at chambers for the appointment of a guardian.' 
 Where the infants are wards in Chancery, the Court may order 
 them to be delivered up to their guardian, either to remain where 
 they were,^ or to go at liberty.^ There were advantages in apply- Application 
 ing to the Court of Chancery over proceedings by writ of habeas chanMryKiore 
 corpus. In proceedings by the latter, the mere question of the advantageous 
 illegal custody of the child could only be considered, whereas if corpus. 
 the infant was made a ward of Court, the Court had power to 
 inquire into all the surrounding circumstances of the case, the 
 claim of the applicant to the custody, and the interests of the 
 ward. The Court of Chancery also has the power of summon- 
 ing witnesses whom it has reason to believe are aware of the 
 whereabouts of the infant who is its ward, and can compel them 
 to disclose their knowledge. This power neither the Queen's 
 Bench Division nor the Chancery Division can exercise on habeas 
 corpus. If, therefore, there is any doubt or uncertainty as to 
 where the infant is detained out of the custody of the claimant, 
 the most efficacious step is to make it a ward of Court, and apply 
 to the Court for the appointment of a guardian to it. 
 
 The father, and the mother after his death, have, by the law of General right 
 England, a general right of control over the person, education, controAnd" 
 and conduct of their children till they attain majority,'' and SJ°'°'^?j?!L ^ 
 when they come before the Court on habeas eorpics, or an appli- till their 
 cation in Chancery, if not yet arrived at the years of discretion, 
 the Court will order them, to be delivered without examination 
 into the custody and control of their parents or other guardian. 
 The Courts on habeas corpus act upon the presumption that where 
 the legal custody is, no restraint exists ; but they had a discretion 
 to refuse to restore the infant to the custody of its parent, if the 
 conduct of such was grossly immoral,^ or to surrender it up 
 would be to the great detriment of the interests of the child ;° and, 
 where the child is in the hands of a third person, that presump- 
 tion is in favour of the father or legal guardian.' But where the 
 children are not in the custody of their father or guardian, and 
 he seeks to resume his control by habeas corpus, in cases where 
 they are arrived at the age of discretion, and are capable of exer- 
 
 1 Todd V. Todd, Set. Deo. 889, cited as Todd-v. Lyne,m Simp. Inf. 145 ; Re Lyons, 
 22 L. T. 770. ^ Harrison v. GoodaU, Kay, 310 n. 
 
 2 Se Lyons (uhi sup.), 
 
 * Re Agar-Ellis, Ayar-EUU v. Lascelles [uK sup,). 
 
 5 Rex. V. De Manneville [ubi sup.). 
 
 6 See Reg. v. Clarke (uhi suj)-). ' Macpb. Inf. 155. 
 
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500 PARENT AND CHILD. [part ii. 
 
 cising a choice, they will be permitted to elect whether or not to 
 return to their father's or guardian's control, but their choice 
 must be a wise one, and for their own interests.^ This is so 
 because the question before the Court upon habeas corpus is 
 whether the person detained is in illegal custody without that 
 person's consent ; and where the Court finds that the infant is 
 no longer a mere child, but is capable of consenting or not 
 consenting, and is consenting to the place where it is detained, 
 then the ground of an application for a writ of habeas corpus falls 
 away.^ 
 Custody of But under the Custody of Children Act, 1891,^ the powers of 
 
 1891. ' the Court, on an application for a writ of habeas corpus, are 
 
 enlarged, and the principles which guided the Court of Chancery 
 in refusing to grant the writ have now statutory authority ; for 
 where a parent^ of a child applies to the High Court for a writ 
 for its production, and the Court is of opinion that the parent has 
 abandoned or deserted the child, or has otherwise so conducted 
 himself that the Court should refuse to enforce his right to the 
 custody, the Court may decline to issue the writ.* .So, too, if 
 the child is being brought up by another person," or is boarded- 
 out by poor-law guardians, the Court may make an order on the 
 parent, if it restores the custody of the child, to pay such remu- 
 neration to the person or board for the keep of the child as may 
 be just.' Where a parent has . abandoned or deserted his child, 
 or allowed his child to be brought up at some other person's 
 expense, or by poor-law guardians, for such a length of time as 
 to satisfy the Court that the parent was unmindful of his parental 
 duties, the Court may refuse to order up the child to the parent 
 unless the latter proves he is a fit person to have the custody of 
 the child.^ If the Court is of opinion that the parent ought not 
 to have the custody of the child, and that the child is being 
 brought up in a different religion to that in which the parent has 
 a legal right to require the child to be brought up, the Court 
 may, by order, secure that the child be brought up in such 
 religion.' The Court may consult the wishes of the child in 
 considering what order ought to be made, and any right which 
 the child now possesses to exercise its own free choice shall not 
 be diminished.^" 
 
 ^ Beg. V. Howes, 30 L. J. M. C. 47. Thus, if a girl over sixteen, but under twenty- 
 one, were voluntarily to consent to remain in a brothel, there is no doubt but that the 
 father would be assisted by the Court to resume his parental control over her. 
 
 ^ Per Brett, M.E., in Be Agar-Ellis, AgarSUis v. Lascelles, 24 Ch. D. 317. 
 
 ^ 54 Vict. 0. 3. 
 
 * "Parent" is any person liable at law to maintain such child or entitled to its 
 custody. Sect. 5. ^ Sect. i. 
 
 ^ " Person " includes any school or institution. Sect. 5. 
 
 ' Sect. 2. « Sect. 3. » Sect. 4. " Sect. 4. 
 
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CHAP. ii.J RIGHTS AND OBLIGATIONS (PERSONAL). 501 
 
 There is no English case deciding what is the age of discretion 
 for this purpose in male infants, but two Irish cases^ have fixed 
 fourteen. In the case of female infants, the Courts (guided by 
 the statutes of 4 & 5 Ph. & M. c. 8, and 24 & 25 Vict. c. lod, 
 s. 5 5) have fixed sixteen as the earliest age at which they will be 
 allowed to exercise this choice, and no amount of precocity in a 
 girl under that age will hasten the period of choice.^ But apart 
 from the question of habeas corpus, the parents' right to the 
 custody and control of their children of both sexes lasts till they 
 have attained their majority, unless they have done something to 
 disentitle them to that right ; ' for parents have the right to 
 control the marriages of their infant children ; ■* and to appoint 
 guardians to them till they reach majority.^ The Court of 
 Divorce has lately recognized the liability of parents to maintain 
 and support their children till they reach the age of twenty-one.'' 
 
 The common law right of the parents to the control and interference 
 custody of their children has not been allowed to prevail under ^^j^ parents^ 
 all circumstances, but has been seriously interfered with both by c°4'^°i '^^^ 
 
 ... . . custody. 
 
 the Courts administering common law as well as those adminis- 
 tering equity, where the interests of the children have called for 
 interference. The Court of Chancery has from time to time 
 exercised the widest powers of interference on behalf of infants 
 who stood in need of its protection. The common law Courts, 
 exercising only their innate jurisdiction, could control the rights 
 of the parents only in cases where they were proved to be abso 
 lutely unfit to take care of them. But to a considerable extent, 
 however, the same reasons prevailed with those administering the 
 different branches of the law. The Court of Chancery was enabled 
 to exercise wider super vision^ because it possessed the delegated 
 powers and jurisdiction of the Crown, as j^wrcns patriw, in which 
 was vested a general superintendence and protection over the 
 persons of infants.'' The Court of Chancery exercises a general 
 superintendence over infants, but as a rule has not the means of 
 
 1 Se Shanahan, 20 Ij. T. 183 ; Re Connor, i6 Ir. C. L. 112. The age of fourteen 
 for boys might be adopted on the analogy of the capacity of male infants to choose 
 guardians-in socage at that age ; for on arriving at that age they were assumed able to 
 exercise a wise and proper discretion. 
 
 ^ Beg. V. Howes (ubi sup.). Be Smythe, 11 Ir. L. T. Eep. 122; but see Beg. v. 
 Oyngall, [1893] ^ Q- B. 242, where the girl was fifteen and not quite sixteen. 
 
 ^ Be Agar-isUis, Agar-Ellis v. Lascelles {ubi sup.) ; Tlwmasset v. Thomasset, 
 [1894] P. 295 ; Todd V. Lyne, Simp. Inf. 145. 
 
 ^ 4 Geo. IV. t. 76, o. 16. '^ 2 Car, II. 0. 23 ; 49 & 50 Vict. c. 27. 
 
 ^ See Tlwmasset V. Thomasset (ubi sup.). 
 
 "> 2 Fonb. Eq. 224. Mr. Fonbla'nque here combats the theory put forward by Mr. 
 Hargrave (Harg. n. 16, Co. Litt. 88 b), who maintains that the Chancery jurisdiction 
 over infants was nothing more nor less than an usurpation by that Court. He 
 also draws a distinction between the Crown's jurisdiction over infants and 
 over lunatics and idiots, in whose persons and estates it had a beneficial interest. See 
 -gost, Part III. ch. ii. 
 
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502 
 
 PAEENT AND CHILD. 
 
 [part II. 
 
 Bench 
 Divisions. 
 
 Principles on 
 which the 
 Oonrts now 
 act. 
 
 acting, except where it has property to act upon. It is not, 
 however, from any want of jurisdiction that it does not act, but, 
 as a rule, from a want of means to exercise its jurisdiction by 
 applying property for the use and maintenance of the infants.' 
 Conoun-ent Since the passing of the Judicature Act,^ and the decision of the 
 the ohancery Queen's Bench Division in Be Goldsiuorthy ,^ it is no longer neces- 
 and Queen's ga,ry to Set out minutely the different grounds for interference 
 with the parents' right of custody and control which were acted 
 upon in equity and at common law. The principles upon which 
 the Court, whether of common law or equity, professes now to 
 act in regulating the relations of parent and child are those that 
 ought to be found in a " wise, affectionate, and careful parent " ; * 
 and the moral welfare of the child is the dominant matter for 
 the consideration of the Court ; and the Court will act whether 
 the child is under the control of a parent or of some other legal 
 guardian.' Misconduct on the part of the parent is not now 
 necessarily one of the grounds on which the Court will act to 
 prevent a parent from recovering the custody of its offspring ; 
 but the Court now arrogates to itself the right to say that if in 
 its opinion the parent, however free from misconduct, is placed 
 in such a position that would warrant the Court in superseding 
 the natural rights of the parent, it will not restore the custody 
 of the child to him.° The ideal of what is a " wise, affectionate, 
 and careful parent " may, however, vary from time to time with 
 the composition of the Court which is to translate that ideal into 
 practice ; and it is not impossible for the Courts to vary in the 
 application of that ideal as much as in the construction of the 
 terms of a will. 
 
 This subject will now be treated on the following lines : 
 (i) Interference with the parental control by the Court of 
 Chancery — 
 
 a. Under its general jurisdiction. 
 h. Under its statutory jurisdiction. 
 (2) By the Divorce Court. 
 
 By Court of 
 Chancery. 
 
 I. By the Court of Gliancery. 
 
 a. Under its Genercd Jiorisdiction. — The Court will not, as a 
 rule, exercise this jurisdiction except in the case of its wards, 
 
 ' Per Lord Eldon in Wellesley v. Dulce of Beaufort, 2 Russ. 21 ; Ee Spetice, 2 Ph. 
 247; Be Fynn, 2 Ue G. & Sm. 457 ; Brown v. Collins, 25 Ch. D. 56; Ee Scanlan 
 (Infants), 40 Ch. D. 200 ; Re Nevin, [1891] 2 Ch. 299 ; Barnardo v. M'Hugh, [1891] 
 App. Cas. 395; Be M' Qrath (Infants), [1893] i Ch. 143. See post, Part Iv. c. ii. 
 
 2 36 & 37 Vict. c. 66, SB. 16, 25, subs. 10. ^ 2 Q. B. T>. 75. 
 
 •• Per Esher, M.K., in Beff. v. Oyngali, [1893] 2 Q. B. 242. 
 
 ^ Be ai'Grath {Infants) (uM sitp.). " Beg. </. Gyngall {uhi sup.). 
 
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CHAP. ii.J RIGHTS AND OBLIGATIONS (PERSONAL). 503 
 
 however constituted, not because it lacks jurisdiction, but because Under general 
 it will not interfere as regards the custody and tuition of the '""^ ^° '°°' 
 children where it has not the means of providing for them.' The 
 jurisdiction of the Court is limited in such a case to the appoint- 
 ment and removal of guardians, for the children having no 
 property under the control of the Court, the Court cannot provide 
 any scheme for their maintenance or education.^ The grounds 
 for interference by the Court are gross misconduct and profligacy 
 on the part of the father, who, by his behaviour, has shown that 
 he is utterly unfit to be trusted with the control and bringing up 
 of his children, who, if they remain within his influence, are 
 more likely to acquire evil habits than to learn what is proper - 
 and decent for civilized life.^ In deciding this question the 
 Court regards less the interference and suspension of the parents' 
 power than what is essential to the welfare of the children ; ^ 
 and " welfare " is now to be construed in the widest possible 
 sense." But the Court did not take upon itself jurisdiction to 
 interfere simply with reference to what is not for the interests of 
 the children." Thus, the following have been held to be grounds Grounds for 
 for interfering : — Cruelty combined with general bad character,' unfitness "S' 
 constant habits of drunkenness and blasphemy, poisoning the "'^ father. 
 mind of the infant,' cruelty to the children,' or criminally 
 assaulting a daughter,'" open habits of profligacy and debauchery, 
 together with his teaching the children low and indecent 
 language," irregularity of life combined with a second marriage 
 with a person socially much beneath him.'"^ If the Court is 
 satisfied that the father of young children has been guilty of an 
 unnatural crime (though not convicted of it), it will not permit 
 any sort of intercourse with his children, and it seems that if the 
 children were with him, it would be the duty of the Court to 
 remove them.'^ The Court need not wait (in order to found its 
 jurisdiction) until misbehaviour has actually occurred, if it 
 reasonably suspect that its occurrence is imminent, on the 
 principle that " preventiug-justice is better than punishing- 
 
 '' Per Cotton, L.J., in Se Agar-Eilis, Agm--EUis v. Lascelles, 24 Ch. D. 317, 332. 
 2 Me Jl'Orath {Infants), {ubi sup.). 
 
 2 Story, Eq. Juris, s. 1341. ^ See ReFijnn (uU sup.). 
 
 ^ Beg. V. Gyngall {ubi sup.). 
 " Curtis V. Curtis, 28 L. J. Ch. 458. 
 ' Ex parte Warner, 4 Bro. C. C. loi. 
 
 8 Per Lord Eldon in I)e ManneviUe v. Be Manneville, 10 Ves. 61. This was also 
 done in the mother's case by Jessel, M.R., in Carnec/ie's Case, cited in lie Besant, 1 1 
 Ch. D. 508, 512. ' Whitfield v. Hayes, 12 Ves. 492. 
 
 i» Swift V. Swift, II 3m. N. S. 148, 458. 
 
 II WeUesley v. Dule of Beaufort (ubi sup. ). This is the leading case on tho 
 subject, and the principles upon which the Court acts are clearly laid down in it. Me 
 Goldsworthy, 2 Q. B. I). 75. '^ Me Cormicks (Minors), 2 Ir. Eq. Rep. 264. 
 
 13 Anon, 2 Sim. Rep. N. S. 54. 
 
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504 
 
 PAEENT AND CHILD. 
 
 [part II. 
 
 XJDfitness of 
 mother. 
 
 Insufficient 
 grounds for 
 interference. 
 
 justice." ' Immoral conduct on the part of the mother tending to 
 corrupt the characters of her children would be a ground for 
 interfering with her rights ; if a mother allows her daughter 
 under the age of sixteen to be a prostitute in her own home, the 
 child may be removed from her custody." 
 
 The following facts have been held insufficient to warrant the 
 Court to interfere with the paternal control : Mere incontinence,* 
 or occasional intemperance as opposed to habitual drunkenness ; * 
 adultery where he is careful not to bring his children in contact 
 with his paramour or mistress ;'* occasional acts of harshness," or 
 inconsiderate enforcement of his paternal rights, or severity arising 
 from giving way to a passionate temper ; '' or his conduct, which 
 prevents his wife living with him, but which does not lead to the 
 corruption of the morals of his children.^ Again, mere poverty 
 and kisolvency by themselves are no grounds for interference ; * 
 though coupled with desertion," or an improper application of his 
 child's fortune to his own use," they may be urged as reasons for 
 putting an end to the father's control. There is no case in the 
 books which decides that a father may be deprived of the control 
 of his child because of his professing certain religious principles, 
 though they might be described by the majority of people as 
 peculiar.'^ In all the cases in which the custody has been inter- 
 fered with, the religious principles have manifested themselves in 
 acts which have been stamped by the law as vicious and immoral.'* 
 In Lyons v. Blenkin,^* Lord Eldon laid down the following general 
 rule : " With the religious tenets of either party I have nothing 
 to do, except so far as the law of the country calls upon me to 
 look upon some religious opinions as dangerous to society." The 
 nearest approach to an interference on this ground was in Mrs. 
 Besant's Case}^ 
 
 1 Vulce of Beaufort v. Berty, i P. Wms. 703. 
 
 ^ Siscocks T. Jermonson, 10 Q. B. D. 360. ' Be Goldsworthy, 2 Q. B. D. 75. 
 
 ^ Be Ooldswortliy (ubi sup.) ; Be Salliday's Estate, 1 7 Jur. 56. 
 5 Ball T. Ball, 2 Sim. 35 ; March v. March, L. E. i P. & D. 437. But it is 
 otherwise, where the father, after ohtaiuing a decree dissolving his man'iage, is shown 
 to he leading a notoriously dissolute life. 
 
 ^ Blake v. Wallscourt, 7 L. T. 0. S. 545. But persistent spitefulness and cruelty 
 on the part of the father would seem to be sufficient to give the Court occasion to 
 remove the children. See Be Agar-Hllis, Agar-Elli? v. Lascelles, 24 Gh. D. 317. 
 ' Curtis V. Curtis, 28 L. J. Ch. 458. 
 
 8 Be Spence, 2 Ph. 247. " Curtis v. Curtis (ubi sup.). 
 
 1" Creuze v. Hunter, 2 Cox, Eq. Cas. 242. 
 ^1 Exparte Mountford, 15 Ves. 445. 
 
 ^2 Curtis V. Curtis [ubi sup.). But see Thomas v. Boherts, 19 L. J. Ch. 506. 
 1^ Shelley v. Westbroohe, Jac. 266 ; Thomas v. Boberts [ubi sup.). 
 " Jac. 245. 
 
 ^5 11 Ch. D. 508. In this case Mrs. Besant had the custody of her daughter under 
 a deed of separation ; she professed no religious principles, and prevented her daughter 
 from heing educated in any. She was convicted of having published a book calculated 
 to deprave public morals, and on this ground and on that of refusing to educate her 
 child in religious principles, the Court removed her from her mother. 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 505 
 
 Another ground for interference by the Court is the abdica- Abdication of 
 tion by the parent of parental authority in such a way that the authority. 
 Court will not allow the parent to interfere and resume it. 
 Where a stranger thinks fit to provide a fund for the main- 
 tenance and education of children, and the parent permits their 
 maintenance to be supplied from that source, allowing them to be 
 brought up with expectations founded upon a particular species 
 of maintenance and education, which he or she cannot afford to 
 give, the parent is not, according to the principles of the Court 
 of Chancery, at liberty to say that the children shall be taken 
 from the course of education which they have hitherto pursued.' 
 In such a case the interests of the children being at stake, the 
 Court will not hesitate to interfere on their behalf, and will con- 
 sider that as their parent has permitted them to be educated and 
 reared in a manner which he or she could not have afforded from 
 his or her personal means, it was intended to abdicate the parental 
 functions in favour and on behalf of the children, and when it is Resumption of 
 desired to resume parental control over them, which would result t'rof^ust'aot 
 not only in bringing down their mode of life to a lower level, but detrimentally 
 also in depriving them of their legitimate expectations, such desire of the children. 
 will be restrained. 
 
 It would appear from the case of Lyons v. Blenhin,^ which is 
 the leading authority on this particular point, that the children 
 need not be wards of Court to give the Court jurisdiction to 
 interfere ; and that in such a case a writ of habeas corpus is not 
 the proper remedy for the parent, but a petition praying that the 
 custody of the children should be restored to him or her. 
 
 Where the child is very young its own " wishes " will not be 
 taken into consideration ; but where it has arrived at a reasonable 
 age, the practice of the judges was to see the child, not for the 
 purpose of obtaining its consent, which it could not give, but for 
 the purpose of determining what was really for the welfare of the 
 child.^ " Custody " and " control " include the direction of the 
 religious education of the infant.^ 
 
 A third ground for interference by the Court is where the Removal of a 
 infant is a ward of Court and the parent intends to remove him™of°t)jg°" 
 out of the jurisdiction.^ To remove a ward out of the juris- jurisdiction. 
 diction is a gross contempt of Court, and the privilege of Parlia- 
 ment will not protect the contemner from attachment." The 
 Courts were formerly much more reluctant in granting leave to 
 
 ^ Lyons V. Blenlcin (ubi sup.). ^ Ubi siq). 
 
 " See Meg. v. Gyngall, [1893] 2 Q- B. 251. 
 
 ■* Oondon v. Volhmi, 57 L. T. 154. 
 
 ^ Creuze v. Hunter, Jac. 250 n. ; Be Plomley, 47 L. T. 283. 
 
 " Long Wellesley's Case, 2 B. & M. 639. 
 
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506 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 parents and guardians to take wards abroad and out of the juris- 
 diction than they are now/ and were wont to impose terms 
 and conditions on those who desired to remove them.^ But in 
 more recent years wards have been allowed to go abroad in order 
 to travel/ to visit/ on account of health/ to attend sick parents/ 
 This liberty applies not only to male but female wards/ whenever 
 it can be exercised for their benefit/ If the father be compelled 
 to reside abroad, he will in general be permitted to have his 
 children with him." A mother also who goes abroad for health 
 will be allowed to take her infant child with her ; ^° and she has 
 been allowed to take her children with her to India." The Court 
 would, however, restrain the mother who was the guardian of a 
 ward of Court from taking it out of the jurisdiction without leave. 
 Leave is now given to take a ward out of the jurisdiction without 
 a case of necessity being shown ; but the Court must be satisfied 
 that it is for the benefit of the infant, and that future orders will 
 be obeyed. Security in this respect is generally obtained by 
 appointing a guardian in this country to act jointly with the 
 parent.'^ This power of the Court to supersede the parent will 
 be further discussed in Part IV., Infants." 
 
 h. Under its Statutory Jurisdiction,. — The statutory jurisdiction 
 
 has been conferred upon the Court for the purpose of enabling it 
 
 to recognize in a fuller manner than formerly the rights of the 
 
 father's rights, mother, which under the old law were kept in the background, 
 
 mother's ^^^^ acknowledged only when the outrageous conduct of the father 
 
 nghts. a,nd the imperative interests of the children demanded that she 
 
 and not her husband ought to have their custody and control. 
 
 To give the Court freer power to recognize the rights of the 
 
 mother and the interests of her child the Infants' Custody Act, 
 
 1839," known as Talfourd's Act, was passed after considerable 
 
 opposition. It provided that the Lord Chancellor and the Master 
 
 of the Rolls both in England and Ireland ,'° upon hearing the 
 
 petition of the mother of a child who was in the custody or 
 
 statu toiy 
 iurisdiction in 
 favour of the 
 mother. 
 Oui-tailment of 
 
 Talfourd's 
 Act, 1839. 
 
 1 Macph. Inf. 129. 
 
 ^ Johnson v. Harikey, Jac. 265 n. ; Stephens v. James, I M. & K. 627. 
 
 ^ Talbot V. Earl of Shrewshury, 4Myl. & Cr. 672. 
 
 ■* Ex parte M'Key, i Ba. & B. 405. 
 
 ^ Wyndham \. Lord Ennismore, i Ke. 467. 
 
 ^ Biggs V. Terry, 1 Myl. & Cr. 675. 
 
 ' Jeffreys v. Wanteswarstwarth, Barn. Ch. 141 ; Campbell v. OampbeU, cited 
 Chamb. Inf. p. 30 ; Clogstoun v. Walcot, 9 Jur. 649. 
 
 ^ Be Callaghan, Elliott v. Lambert, 28 Ch. D. 186. 
 
 ^ Be Thomas, 22 L. J. Ch. 1075. 
 ^^ Lyoib v. Watson, cited Chamb: Inf. p. 32. 
 " Be England, i K. & M. 499. 
 
 ^^ J?e Callaghan, Elliott v. Lambert (ubi sup.), ^^ Posl, chap. v. 
 
 " 2 & 3 Vict. 0. 54. It is said that the passing of this Act was hastened by the 
 decision of the King's Bench in Bex v. Greenhill, 4 A. & E. 624. 
 ^^ Also the Vice-Chancellors: Be Taylor, 10 Sim. 291. 
 
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CHAP. II.] EIGHTS AND OBLIGATIONS (PERSONt^L). 507 
 
 control of the father, or any other guardian, might make an order 
 for the access of the mother to such child, subject to such regu- 
 lations as might be deemed convenient and just ; ami if the child 
 ivere under the age of seven, might order that the mother might 
 have the custody of it until it reached that age. But no order for 
 such access or custody was to be made if the mother was proved 
 to have been guilty of adultery. The object of the Act was that 
 the mother ought to have the protection of the law with respect 
 to her children up to a certain age, and that she should be at 
 liberty to assert her rights as a wife, without the risk of any 
 injury being done to her feelings as a mother,^ also to connect the 
 paternal right with the marital duty, and imposed the marital 
 duty as the condition of recognizing the paternal right ; and 
 lastly, to preserve the interests of the child.^ In order to carry Absoiuto 
 out this object it gave the Court an absolute discretion in the comt in the 
 case of children under the age of seven years, and a wide discre- ^uXrUvMi'*^ 
 tion in the case of those over that age, and if it were proved that 
 the husband had grossly violated his marital duty, his paternal 
 rights could be controlled, and his children placed in their 
 mother's custody on her petition. If the mother is living apart 
 from her husband without any justification, her petition will be 
 unsuccessful,^ though it will be otherwise where she is justified in 
 separating from him.^ Where the mother applies for the custody 
 of her children, the Court will take great care that the father 
 does not insist on his paternal rights as a means of compelling 
 her to forego her remedies against him for marital misconduct.^ 
 The jurisdiction of the Court extends to children of English 
 parents born abroad." 
 
 In 1873 the Infants' Custody Act of that year' was passed, infants' Cue- 
 repealing the above-mentioned Act. Its first section provides : ■ ^ 73- 
 " From and after the passing of this Act, it shall be lawful for 
 the High Court of Chancery in England or in Ireland respec- 
 tively, upon hearing the petition by her next friend of the mother 
 of any infant or infants under sixteen years of age, to order that 
 the petitioner shall have access to such infant or infants at such 
 times, and subject to such regulations, as the Court shall deem 
 proper, or to order that such infant or infants shall be delivered 
 to the mother, and remain in or under her custody or control, or 
 
 ^ Warde v. Warde, 2 Ph. 786. In this case Lord Cottenham said the ohject of 
 passing Talfourd's Act was : — (i) To obviate the improper and illegitimate use of the 
 husband's rights and authority to put pressure upon the wife ; (2) to give the 
 court a widened discretion on behalf of the innocent wife and the interests of the 
 children. ^ lie HalUday's Estate, 17 Jur. 56. 
 
 3 Re Taylor (uhi sup.). '' Ee Bartlelt, 2 Coll. 661. 
 
 ^ Warde v. Warde (uhi sup.). 
 
 " Hope V. Hope, 26 L. J. Ch. 417. ' 36 & 37 Vict. c. 12. 
 
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508 
 
 PAllENT AND CHILD. 
 
 [PAET II. 
 
 Alteration 
 effected by the 
 Infants' Cus- 
 tody Acts. 
 
 Grounds for 
 interference. 
 
 Provision for 
 custody of 
 child in sepa- 
 ration deed. 
 
 shall, if already in her custody or under her control, remain 
 therein until such infant or infants shall attain such age, not 
 exceeding sixteen, as the Court shall direct ; and farther, to order 
 that such custody or control shall be subject to such regulations 
 as regards access by the father or guardian of such infant or 
 infants, and otherwise, as the said Court shall deem proper." By 
 this section the age to which the mother's rights are to extend 
 is increased from seven to sixteen, and the mother may retain 
 the care of those children already in her custody until they attain 
 the age of sixteen. 
 
 It has been held that the only alteration in the law effected by 
 the Acts of 1839 and 1873 was that the wife acquired new 
 rights, for the Court had the power on her petition alone to order 
 that she should have the custody of her children, where their 
 interests and benefit demanded it ; for whereas the Courts had 
 refused to deprive the father of the custody of the child except in 
 a very extreme case of misconduct, in future, where the wife was 
 innocent, the Court was to exercise a wider discretion, and con- 
 sider other reasons besides ; ' in other words, that which was the 
 absolute right of the father was now subject to the discretionary 
 power of the judge. Thus, where a husband having abandoned 
 his wife, and kidnapped the only child of the marriage, a boy 
 three years of age, and being a co-respondent in a pending 
 divorce action charging him with adultery, the Court, upon the 
 wife's petition under the Infants' Custody Act, 1873, ordered 
 immediate delivery of the child to her, with liberty of access by 
 the father and paternal grandparents, and also liberty to 
 apply as to the maintenance and education of the child on 
 his attaining seven years of age.^ The paternal right, the 
 marital duty, the conduct of the parents,' and the interest of 
 the child are taken into consideration whether the custody 
 ought to be given to or retained by the mother." Where the 
 child is above the age of sixteen, this Act does not give the 
 Court jurisdiction.* 
 
 The second section enacts : " No agreement contained in any 
 separation deed made between the father and mother of an infant 
 or infants shall be held to be invalid by reason only of its pro- 
 viding that the father of such infant or infants shall give up the 
 custody or control thereof to the mother : Provided always, that 
 no Court shall enforce any such agreement if the Court shall be 
 
 1 Re Taylor (an Infant), 4 Ch, D. 157. 
 
 ^ Be Taylor (an Infant) (uhi swp.). See also Be Goldsicortliy, 2 Q. B. D. 75. 
 
 3 Be Brown {Ethel), 13 Q. B. D. 614. 
 
 •* Be Elderton {Infants), 25 Ch. D. 220. 
 
 '"' Re Agar^Ellis, Agar-Ellis v. LasceUes, 24 Ch. D. 317. 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). W.) 
 
 of opinion that it will not be for the benefit of the infant or 
 infants to give effect thereto." 
 
 It has been already seen^ that an ante-nuptial agreement by 
 a father to surrender the control and custody of his children 
 never was and is not now binding on him. Formerly he was 
 not allowed to forego this right in a separation deed, and the 
 Court would not enforce such a covenant in a separation deed 
 even where the father had been guilty of adultery and cruelty.^ 
 But the Courts in time did enforce such agreements, as, for 
 instance, an agreement in a separation deed that the mother 
 might have access to the children at reasonable times, the father 
 retaining generally the custody and control of the children,^ and 
 an agreement to give up the custody of the children to the 
 mother, if the father's conduct had been such that the Courts 
 would have deprived him of them, e.g., gross immorality.'' Since 
 the passing of the Act under discussion, no such agreement is 
 per se invalid and not enforceable, or renders the deed of separa- 
 tion null and void, but, on the contrary, many deeds of arrange- 
 ment entered into between husband and wife may now be upheld 
 which formerly would have been treated as of no effect.* But an 
 arrangement of this kind does not amount in law to a substitution 
 or delegation of his rights and powers by the husband to his 
 wife, and he can, it seems, resume the exercise of them when he 
 thinks proper. The touchstone of the validity of such an agree- . 
 ment is the benefit of the infant ; and if the agreement is found 
 not to be beneficial to the infant, the Court will set it aside, and 
 restore the child to the custody of the father.^ Thus, where a 
 father and mother executed a separation deed, in which the 
 former covenanted that the latter should keep their child for 
 eleven months in the year, the mother held and promulgated 
 atheistical opinions, published an obscene book, and refused to 
 allow the child to be religiously educated, the Court, on a 
 petition under this Act, held that it would not be for the child's 
 benefit to remain with her mother, and ordered her to be restored 
 to the custody of her father.^ 
 
 Under the Criminal Law Amendment Act, 1885,' the Court Criminal Law 
 before which the offence of seducing or prostituting a girl under aS,™88s!" 
 sixteen years of age is proved, may divest the father or mother 
 of such girl of all authority over her, if it appear that such 
 
 ' Ante, p. 493. 
 
 ^ Sqpe V. Hope, 26 L. J. Ch. 417. Separation deeds were for a long while looked 
 npon by the Courts of equity as contrary to public policy. See ante, Part. 1., Husband 
 and Wife, chap. xvii. ^ Hamilton v. Hector, L. R. 6 Ch. App. 701. 
 
 * Swift V. Sioift, 1 1 Jur. N. S. 148, 458. 
 
 5 Condon v. Vollum, 57 L. T. 154. ^ Be Besant, 11 Ch. D. 508. 
 
 ' Be Besant (vhi sup. ). ^ 4.S & 49 Yict. 0. 69. 
 
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510 
 
 PARENT AND CHILD. 
 
 [PAKT II. 
 
 Guardianship 
 of Infants 
 Act, 1886. 
 Enlarged 
 powers of 
 mother. 
 
 Mother may 
 appoint 
 testamentary 
 guardian. 
 
 parent caused or encouraged or favoured such seduction or pros- 
 titution.^ The Court may appoint any person or persons willing 
 to take charge of the girl till she reaches the age of twenty-one.^ 
 The High Court may afterwards rescind or vary such order, by 
 appointing any other person as guardian, or in any other respect.' 
 
 Under the Guardianship of Infants Act, 1886,'' the Legisla- 
 ture has conferred largely increased powers on the Court to 
 deprive a father of the control and custody of his children, and 
 at the same time has greatly enlarged the rights and powers of 
 the mother, both in her lifetime and after her death, in respect 
 of the guardianship of her infant children. Now, on the death 
 of the father, who has not appointed a guardian, she succeeds to 
 the sole guardianship of her infant offspring ; and if the father 
 has nominated a guardian, she is co-guardian with such nominee.* 
 But where no guardian has been appointed by the father, or if a 
 guardian has been so appointed who dies or refuses to act, and 
 the mother resides out of the jurisdiction, the Court would seem 
 to have jurisdiction to appoint a guardian jointly with her ; " and 
 the Court clearly has jurisdiction for good cause to remove her 
 from her statutory guardianship, or to appoint a co-guardian or 
 co-guardians to act with her.' 
 
 The mother's disability to appoint testamentary guardians to 
 her children, under 12 Oar. II. c. 24, has now been removed, 
 and she has the power to appoint by deed or will guardians to 
 her infant children who are unmarried, such guardianship to 
 take effect after the death of herself and the father.^ Guardians 
 appointed by both parents are to act jointly.' The Court has 
 jurisdiction to remove a guardian appointed by the mother after 
 the father's death, under section 3, if such removal was called 
 for in the interests of the children." A mother may also provi- 
 sionally nominate a person to act as guardian of her infant 
 children after her death jointly with the father." This provisional 
 appointment should be in forin an appointment of a guardian to 
 act jointly with the father.'^ If after the mother's death the 
 father is found to be unfitted to be the sole guardian of his 
 children, this provisional appointment may be confirmed by the 
 Court, who may displace the father altogether." The Court may, 
 
 ^ See Hiscodks v. Jermonson, 10 Q. B. D. 360. ' Sect. 12. 
 
 3 Ibid. ■* 49 & 50 Viol. e. 27. ' Sect. 2. 
 
 ^ Ibid. For the practice under this section, see Rule 3 of the Eules under 
 the Act. 
 
 ^ Ibid. See Be Scanlan [Infants), 40 Ch. D. 200 ; Ee M'Grath {Infants), [1892] 
 2 Ch. 496, 510. * Sect. 3 (i). 9 Ibid. 
 
 10 Me M'Grath (Infants), [1893] i Ch. 143. 
 " Sect. 3 (2). " He G. {an Infant), [1892] i Ch. 292. 
 
 ^' Sect. 3 (2). Me G. {an Infant), {uM sup ). For the practice under this section 
 see Eule 4 (a). 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 511 
 
 upon the application by petition of the mother of any infant 
 (who may apply without next friend), make such order as it may 
 think fit regarding ihe custody of the infant and the right of 
 access thereto of either parent, having regard to the welfare of 
 the infant, and to the conduct of the parents, and to the wishes 
 as well of the mother as of the father,^ and may alter, vary, or 
 discharge such order on the application of either parent, or after 
 the death of either parent, of any guardian under the Act.^ The 
 Court need not fix the limit of age at which the custody of the 
 mother shall cease.^ 
 
 Under the Poor Law Act, 1889,'' where a child deserted by its Poor Law Act, 
 parent^ is maintained by the guardians of any union, the latter 
 may, by resolution, vest the control of a boy up to sixteen and of 
 a girl up to eighteen years of age in their body, as though they 
 were the parents of the infant.'' The parent is not thereby 
 reKeved from liability to contribute to the maintenance of his 
 child.' Such control may be terminated by the order of a Court 
 of Summary Jurisdiction on the complaint of the parent that the 
 child has neither been maintained by the guardians nor deserted 
 by him.* This right of control of the person of the child does 
 not empower the guardians to educate the child in any other 
 religious faith than that in which it would have been educated 
 but for the resolution to vest its control in themselves." 
 
 Again, under the Custody of Children Act, 1 89 1/" where a custody of 
 parent," applying to the Court for the production of a child, is jg^j ^^ " ' 
 deemed by the Court to have abandoned or deserted the child, or Jurisdiction 
 has so misconducted himself that the Court ought to refuse to refuse parent 
 enforce his right to the custody, the Court may decline to issue J^^l^ corpus. 
 the writ.^ If a child, whose production is applied for by writ, 
 has been brought up by another person, or has been boarded out 
 by poor law guardians, the Court, if it orders the child to be 
 given up to the parent, may order him to pay such person or 
 guardian the whole or part of the costs incurred in bringing up 
 the chUd." Where a parent has abandoned or deserted his chUd, 
 or allowed it to be brought up at another person's or poor law 
 guardians' expense, for so long and under such circumstances as 
 to satisfy the Court that he was unmindful of his parental duties, 
 the child shall not be delivered up unless the Court is satisfied 
 that, having regard to the welfare of the child, he is a fit person 
 
 ^ Sect. 5. He Witten (an Infant) 57 L. T, 336. 
 2 Sect. 5. For the practice under this Act, see Eule 5. 
 ' Be Witten (an Infant), (uhi sim.). '' 52 & 53 Vict. c. 56. 
 
 ^ See sect. 4. « Sect. i. ' Sect, i (5). 
 
 8 Sect. I (2). » Sect, i (6), i" S4 Vict. c. 3. 
 
 " See sect. 5. ^ Sect i. is gect. 2. 
 
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512 PARENT AND CHILD. [paet ii. 
 
 to have its custody.' Though the Court may refuse to order the 
 child to be delivered up to the parent, yet if it is being brought 
 up in a religion different to that in which the parent has a legal 
 right to require it to be brought up, the Court may, if it think 
 fit, require it to be brought up in the parent's religion. But the 
 Court may consult the wishes of the child ; and any right which 
 a child now has to exercise its own free choice is not to be 
 diminished.^ 
 
 2. By the. Divorce Court. 
 Jurisdktion Tjjg Divorce Court derives its iurisdiction over the control 
 
 of the Divorce ^ . 
 
 Court. and custody of children from the different statutes passed 
 
 constituting it, and enlarging its powers ; but can only exercise 
 it where a petition for dissolution of marriage or for judicial 
 separation has been filed, and both parties are before the 
 Court ; ^ and by a recent Act in suits for restitution of conjugal 
 rights.'' It cannot exercise it where such a petition has been 
 dismissed.^ 
 
 Matrimonial Section 3 5 of the Matrimonial Causes Act, 1857," enacts: " In 
 
 Gaus6s Act - 3 -* / J 
 
 1857. ' any suit or other proceeding for obtaining a judicial separation, 
 or a decree of nullity of marriage, and on any petition for dis- 
 solving a marriage, the Court may, from time to time, before 
 making its final decree, make such interim orders, and may make 
 such provision in its final decree as it may deem just and proper 
 with respect to the custody, maintenance, and education of the 
 children, the marriage of whose parents is the subject of such 
 suit or other proceeding, and may, if it shall think fit, direct 
 proper proceedings to be taken for placing such children under 
 the protection of the Court of Chancery." It has been held that 
 the words in this section, " just and proper," give to the Divorce 
 Court a discretionary power exceeding that which had been 
 previously exercised by Courts of law and equity.' Though the 
 Court will consider the interests of the parents,'* yet its chief aim 
 is to do what is best for the interests of the children, and 'will use 
 every means for furthering that end." The Court has power to 
 make orders as to the custody of children until they attain the 
 
 1 Sect. 3. 2 gect. 4. 
 
 3 Stacey v. Staccy, 29 L. J. P. M. & A. 63. * 47 & 48 Vict. e. 68. 
 
 5 Seddon v. Seddon, 31 L. J. P. M. & A. loi. 
 
 ^ This was the Act that constituted the Divorce Court, which, with the Probate 
 and Admiralty Courts, now forms the Divorce, Probate, and Admiralty Division of the 
 High Court. ' Marsh v. Marsh, 28 L. J. P. M. & A. 13. 
 
 °8 Suggate v, Suggate, 29 L. J. P. M. & A. 167. 
 
 * Myderv. Byder, 30 L. J. P. M. & A. 44 ; Spratt v. Spratt, i Sw. and Tr. 215 ; 
 Macq. Div. 156-163. 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 51 a 
 
 age of sixteen years ; ' but not as to those who have exceeded that 
 age.^ In the interval between a decree nisi for dissolution of Custody of 
 marriage being pronounced and its being made absolute, the only ingsSt.^^"^ ' 
 order the Court can make as to the custody of children is an 
 interim order under section 35 of 20&21 Vict. c. 85.' The 
 father's common law right to their custody will be regarded as 
 far as possible/ but the Court will carefully look at all the actual 
 circumstances, the age of the children, and their position in 
 relation to the other members of their family.* If it be to their 
 interest, the elder children will be ordered to be kept at school, 
 and the younger handed over to the care of their mother, with 
 reasonable access allowed to the father.^ 
 
 The 35 th section of the Act of 1857 ^i*l ^^^ gi^® *^s Court Custody of 
 jurisdiction over the custody of children after a final decree of suit. 
 judicial separation, nullity of marriage, or dissolution of marriage ; 
 and section 4 of the Act of 1859' conferred upon the Court the 
 power to make orders with respect to the custody, the maintenance, 
 and education of the children of the parents whose matrimonial 
 proceedings had been before it. The same principles apply to 
 orders made after final decree as to interim orders, namely, the 
 consideration of the children's interests. As a general rule the innocent party 
 innocent party has a primd facie right to the custody of the entitied''to 
 children ; * in the case of the mother, because a wife ought not custody. 
 to be deprived of the comfort and society of her children by her 
 husband's wrong ; ° but it (the Court) will depart from the rule 
 when it is for the interest of the children that their education 
 should be free from her control.'" So, too, where the father is 
 not likely to use his child harshly." The Court can order either 
 party to deliver up the children into the custody of the other. '^ 
 It is practically impossible to lay down any general rules on this 
 subject.'' The Court can restrain a party to a suit for judicial 
 separa,tion or dissolution of marriage from removing a child of 
 the marriage out of the jurisdiction." 
 
 ^ Mallinson v. Mallinson, L. R. i P. & D. 221. 
 
 2 Myder v. JRyder (ubi sup.). 
 
 3 Cubley v. Oubley, 30 L. J. P. M. & A. 161. 
 
 * CartUdge v. Cartledge, 31 L. J. P. M. & A. 85. 
 
 5 Byder v. Ryder {ubi sup. ). 
 
 ^ Curtis V. Ourtis, 27 L. J. P. M. & A. 16. See the cases collected in Pritohard, 
 Div. p. 72 ; Browne, Div. pp. 204-214. 
 
 ^ 22 & 23 Vict. c. 61. 
 
 8 Martin v. Martin, 29 L. J. P. M. & A. 106. 
 
 ^ Suggate y. Suggate, 29 L. J. P. M. & A. 167 ; Boynton v. Boynton, 30 L. J. P. 
 M. & A. 156. " See D' Alton v. D' Alton, 4 P. D. 87. 
 
 11 Martin v. Martin (ubi sup. ). 
 
 12 Hyde v. Hyde, 29 L. J. P. M. & A. 150 ; Mareh t. March, L. R. i P. & D. 437 
 (father) ; Boyd v. Boyd, 29 L. J. P. M. & A. 79 (mother). 
 
 12 Per Cairns, L.C., in Symington v. Symington, L. E. 2 H. L. Sc. App, 
 415, 420. ^* Harris v. Harris, 63 L. T. 262. 
 
 2 K 
 
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514 
 
 PARENT AND CHILD. 
 
 [PAHT II. 
 
 Access. 
 
 Guardianship 
 of Infants 
 Act, 1886. 
 
 Coui't may- 
 vary order 
 after decree 
 absolute. 
 
 The Court has power to order access to the children by the 
 parents not possessing their custody not only after final decree ' 
 but pendente lite ; ^ and in this case the Court is mainly influenced 
 by considerations for the health of the child.^ Access, like 
 custody, is in the discretion of the Court ; and though the Court 
 rarely exercises it to grant to the guilty party access to the chil- 
 dren after final decree ; * yet if it refuses to do so^ the Court of 
 Chancery, whether it possesses such discretionary power or not 
 under the Guardianship of Infants Act, 1886, will not exercise it.* 
 
 Under the Guardianship of Infants Act, 1886,^ in any case 
 where a decree for a judicial separation or a decree, either nisi 
 or absolute, for divorce shall be pronounced, the Court pro- 
 nouncing such decree may thereby declare the parent, by reason 
 of whose misconduct such decree is made, to be a person unfit to 
 have the custody of the children of the marriage ; and in such 
 case, the parent so declared to be unfit shall not, upon the death 
 of the other parent, be entitled as of right to the custody or 
 guardianship of such children.'^ The Court will postpone making 
 the decree to enable the petitioner to prove the unfitness of the 
 respondent.' Gross acts of cruelty towards the mother and the 
 child are grounds for declaring that the husband and father is 
 unfit to have the custody of the child.' If the order is made, 
 the parent against whom it is made has, on the death of the 
 petitioner, the onus of proof that he or she has since become a 
 person who is fit to be entrusted with the care of the children.'" 
 
 The Court has power to vary the order for the custody of chil- 
 dren after decree absolute, and remove them from the custody of 
 the originally innocent party, if subsequently found to be unfit 
 to have their custody, and may make an order for their transfer- 
 ence to the custody of the original respondent, if deemed to be a 
 fit and proper person to have the control." But under section 4 
 of the Matrimonial Causes Act, 1859,''^ upon the death of a parent 
 of a child who was entitled to its custody under a decree for 
 judicial separation, has no jurisdiction to entertain an application 
 for its custody by a stranger." 
 
 1 Handley v. Hundley, [1891] P. 124. 
 
 2 Thompson v. Thompson, 31 L. J. P. M. & A. 213. 
 
 ' Philip V. Philip, 41 L. J. P. M. & A. 89. For what is reasonable access, and how- 
 it is to be carried out, see Prit. Div. Pr. pp. 75-77. 
 
 * Handley v. Handley {ubi sup.). 
 
 s Manders v. Manders, 63 L. T. 627. ^ 49 & 50 Vict. c. 27. 
 
 '' Sect. 7. Skinner v. Skinner, 13 P. D. 90. 
 
 8 JSohinson v. Robinson, 57 L. T. 118. 
 
 ' Handford v. Hcmdford, 63 L. T. 256. 
 
 ^» Webley v. WeUey, 64 L. T. 839 ; Hitchings v. Eitchings, 67 L. T. 530. 
 ^' Witt V. Witt, [1891] P. 163 ; see Symington v. Symington, L. E. 2 H. L. So. 
 App. 415, 12 22 & 23 Vict. c. 61. 
 
 1^ bavis V. Davis, 14 P. D. 162. 
 
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CHAP. II.] EIGHTS AND OBLIGATIONS (PERSONAL). 515 
 
 This Court, though possessing jurisdiction in the matter of 
 maintenance and education of children of parties before it, has 
 not the same jurisdiction as the Court of Chancery over wards of 
 Court, so as to be able to compel persons to attend and be 
 examined as to the whereabouts of the children.' 
 
 Under the Summary Jurisdiction (Married Women) Act, Summary 
 1895,^. a married woman, whose husband has been convicted (jiamed 
 summarily of an aggravated assault, or on an indictment of an ^o^^en) Act, 
 assault upon her, and sentenced to pay a fine of more than ;^5, 
 or to a term of imprisonment exceeding two months, or who has 
 deserted her, or has been guilty of persistent cruelty to her, or 
 has wilfully neglected to provide reasonable maintenance for her 
 or her infant children whom he is legally liable to maintain, and 
 has by such cruelty or neglect caused her to leave and live 
 separately and apart from him,^ may obtain from the Court of 
 Summary Jurisdiction an order providing that the legal custody 
 of any children of the marriage while under sixteen years of age 
 may be committed to her.* Subsequent voluntary resumption of 
 cohabitation or adultery on her part shall cause the order of the 
 Court to be discharged.* The Court has power to order the 
 restoration of the children to the custody of the father on the 
 divorce of the mother for adultery ; though the father had agreed 
 by the terms of a separation deed to permit the mother to have 
 the custody of them.* 
 
 2. Obligations of Parents. 
 
 Protection. — The first obligation or duty laid upon parents is Protection. 
 to protect and shield their offspring. This duty is suggested by natural otUga- 
 the dictates and necessities of Nature itself. This duty the ^Jj'iJ^*" P™*^''' 
 stronger owes to the weaker, and especially does the father owe 
 it to his child, so long as the latter remains comparatively help- 
 less. This obligation may be shifted in time, as age adds to 
 the strength of the one and the infirmities of the other.' Black- 
 stone speaks of this duty as being a natural one, " but rather 
 permitted than enjoined by our municipal law ; Nature, in this 
 respect, working so strongly as to need rather a check than a 
 spur. It is, however, distinctly recognized in the English juris- 
 prudence ; it being laid down, in particular, that a parent may 
 maintain and uphold his children in their lawsuits, without being 
 
 : V. Syde, 13 P. D. 166. 
 2 SS'fe S9 Vict. c. 39, repealing 41 Vict. c. 19, e. 4, (Matrimonial Causes Act, 
 1878). = Sect. 4. " Sect. 5 {&). 
 
 •5 Sect. 7. '5 Jump V. Jump, 8 P. D. 159. 
 
 ' Sch. Dom. Eel. s. 234. 
 
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516 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 Maintenance. 
 
 Liability of 
 the father 
 under the 
 Poor Law 
 Statute 43 
 Eliz. 0. 2. 
 
 31 & 32 Vict, 
 c. 122. 
 
 43 Eliz. c. 2, 
 e. 6, extended 
 to natural re- 
 lations only. 
 Alteration by 
 4 & 5 Wm. IV. 
 c. 76, s. 57. 
 
 guilty of the offence of maintaining quarrels ; and that he may 
 also justify an assault and battery in defence of their persons." ' 
 
 Maintenance!' — The next duty of parents is to maintain and 
 support their children till the latter reach an age at which they 
 can by their own work and industry support themselv^es. It is 
 a natural obligation, and "except under the operation of the 
 Poor Law, there is no legal obligation on the part of the father 
 to maintain his child, unless indeed the neglect to do so should 
 bring the case within the criminal law. Civilly there is no such 
 obligation." ^ The first statutory enactment that cast this burden 
 of support upon parents was the Poor Law Act of 43 Eliz. c. 2, 
 which by its 6th section provided that " the father and grand- 
 ,father, and the mother and grandmother, and the children of 
 every poor, old, blind, lame, and impotent person, or other poor 
 person not able to work, being of suflScient ability, shall at their 
 own charges relieve and maintain such poor person in that 
 manner, and according to that rate, as hy the justices of peace 
 of that county where such sufficient persons dwell, or the greater 
 number of them, at their general quarter sessions, shall he assessed, 
 upon pain that every one of them shall forfeit twenty shillings for 
 every month which they shall fail therein.'' The words in italics 
 are repealed by 31 & 32 Vict. c. 122 ;^ and now justices in 
 petty sessions have the power of making orders of main- 
 tenance under the provisions of 1 1 & 12 Vict. c. 43. It 
 is not unimportant to notice the words " of sufficient ability," 
 for unless the parent is able to maintain his child, he is not 
 within the penal provisions of the Poor Law Statutes ; * nor is he 
 liable at common law for neglecting to furnish proper food and 
 clothing.' 
 
 The statute of Elizabeth extended only to natural relations and 
 not relations in law, therefore a husband was not bound to main- 
 tain his wife's children by a former marriage.'' But an altera- 
 tion has been effected by the Poor Law Amendment Act, 1834,' 
 which enacts " that every man who, from and after the passing 
 of this Act, shall marry a woman having a child or children at 
 the time of such marriage, whether such child or children be 
 legitimate or illegitimate, shall be liable to maintain such child 
 
 1 I Hawk. P. C. 131 ; i Bl. Com. 450. 
 
 ^ The word " maintenance " in this sense has much the same meaning as the civil 
 law term " aliment." 
 
 ' Per Gockbura, C.J., Bazeley v. Forder, L. R. 3 Q. B. 559. 
 
 " Poor Law Amendment Act, 1868. 
 
 ^ St. Andrews' Undershaft v. de Breta, I Ld. Raym. 699. 
 
 ^ See Eeg. v. Bugg, 24 L. T. 192. 
 
 ' Bex V. Munday, i Stra. 190 ; TiCbh v. Harrison, 4 T. R. 118 ; Cooper v. Martin, 
 4 East, 76 ; and see Bex v. Kempson, 2 Stra. 955 ; Bott, Sess. Cas. 230. 
 
 8 4 & 5 AVm. IV. 0. 76. 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL), 517 
 
 or children as a part of his family, and shall be chargeable with 
 all relief, or the cost price thereof, granted to or on account of 
 such child or children, until such child or children shall respec- 
 tively attain the age of sixteen, or until the death of the mother 
 of such child or children ; and such child or children shall, for 
 the purposes of this Act, be deemed a part of such husband's 
 family accordingly.' 
 
 While grandparents may be called upon to maintain a pauper Liability of 
 grandchild not able to work,^ there is no corresponding liability ^''^ P*™° ^' 
 upon a grandchild to maintain its grandparent.' 
 
 There is now a statutory duty on parents to provide adequate Parents 
 food, clothing, medical aid, or lodging for their children in their their children 
 custody under the age of fourteen years for boys, and sixteen for p^igj^g^t 
 girls. The wilful neglect of this duty, which has injured or tends 
 to injure the health of the children, or is likely to cause them 
 unnecessary suffering, is a misdemeanour punishable either on 
 indictment, or on summary conviction.* It is an indictable offence 
 for any parent to refuse or neglect to provide sufficient food or 
 other necessaries for any infant of tender years, unable to provide 
 for and take care of itself, so as thereby to injure its health." 
 Parents may be convicted of ill-treatment of a lunatic child over 
 age, as persons having the care of it.'' 
 
 At common law there was even less liability on the part of Liability of the 
 the mother or grandmother to support and maintain their children 
 or grandchildren ; and it was only the statute of Elizabeth ' that 
 imposed the burden of supporting their children till they had 
 attained the age of sixteen years upon the mothers as well as 
 upon the fathers. This provision did not affect the primary lia- 
 bility of the father and grandfather ; but recently there has been 
 an important modification. This liability was never enforced 
 against a /erne covert, whether mother or grandmother.^ But 
 by the Married Woman's Property Act, 1870,' a new liability 
 was imposed upon a married woman with separate estate ; for 
 after the passing of that Act a married woman with separate 
 estate was liable for the maintenance of her children as a widow 
 was then by law subject to the maintenance of her children. 
 This section was held not to include grandmothers possessing 
 separate property, but was limited to mothers only.'" But by 
 
 1 Sect. 57. 2 Bevan-v. M'Mahon, 28 L. J. P. M. & A. 129. 
 
 ' Maund v. Mason, L. R. 9 Q. B. 254. 
 
 * 57 & 58 Viot. c. 41, 8. I. Seeposi, Part IV., Infancy, chap. vi. 
 ^ Jiex V. Friend et uxor, cited i Ruse. Cr. 949. 
 
 ^ Buchanan v. Hardy, 18 Q. B. D. 486. This was a. conviction under i6 & 17 
 Vict. c. 96, s. 9. ' 43 Eliz. 0. 2, s. 6. 
 
 8 Oustodes V. Jinles, Sty. 283. ' 33 and 34 Vict. c. 93, s. 14. 
 
 10 Coleman v. The Overseers of Birmingham, 6 Q. B. D. 615. 
 
 * 
 
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518 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 Age at which 
 liability of 
 parents ceases. 
 
 Liability of 
 parents for 
 necessaries 
 supplied to 
 their children. 
 
 the Married Woman's Property Act, 1882/ it is provided that 
 " a married woman having separate property shall be subject to 
 all such liability for the maintenance of her children and grand- 
 children as the husband is now by law subject to for the main- 
 tenance of her children and grandchildren." The mother may be 
 indicted for refusing or neglecting to provide suflScient food or 
 other necessaries for her infant child, unable to provide for and 
 take care of itself, whereby its health is injured.'' 
 
 The statutory liability of the parents to support their own 
 children ceases when the latter attain sixteen, unless they are 
 blind, or deaf and dumb, or impotent, or otherwise unable to 
 work for themselves.' If the parent retains the custody of the 
 child, the liability to support and maintain it will extend to 
 majority,* and the Court of Divorce has jurisdiction to make 
 orders respecting the custody of children till they attain their 
 majority.* The statutory liability to support their sfo^-children 
 ceases when they attain the age of sixteen years, irrespectively of 
 their becoming chargeable or not.^ 
 
 It now becomes important to consider the liability of parents 
 for the necessaries supplied to their children. This liability is 
 primd facie on the father, though by recent legislation a mother 
 during coverture, who is possessed of separate property, may 
 have this burden cast upon her. As has been seen, there is no 
 legal obligation apart from the Poor Laws on the parent to sup- 
 port his children, or to pay their debts unless he contract to do 
 so.' The law on the subject has been thus laid down. " In 
 point of law, a father who gives no authority, and enters into no 
 contract, is no more liable for goods supplied to his son than a 
 brother, or an uncle, or a mere stranger would be. From the 
 moral obligation a parent is under to provide for his children, a 
 jury are, not unnaturally, disposed to infer against him an admis- 
 sion of a liability in respect of claims upon his son, on grounds 
 which warrant no such inference in point of law, and .... if 
 a father does any specific act, from which it may reasonably be 
 inferred that he has authorized his son to contract a debt, he 
 may be liable in respect of the debt so contracted ; but the mere 
 moral obligation on the father to maintain his child affords.no 
 inference of a legal promise to pay his debts " ; ' and this is so 
 
 ' 45 & 46 Vict. 0. 75, s. 21. Whether this section will be held to render a married 
 woman liable for the support and maintenance of her step-grandchildren remains to be 
 decided ; the words seem almost wide enough to render her so liable. 
 
 2 See Beg. v. Phillpot, Dears. C. C. R. 179. 
 
 3 43 Eliz. c. 2, 8. 6 ; 4 & 5 Wm. IV. c. 76, s. 56. 
 
 ^ Tliomasset v. Thomasset, [1894] P. 291;. ^ Ihid. 
 
 " 4 & 5 Wm. IV. c. 76, s. 57 ; 45 & 46 Vict. c. 75, s. 21. 
 
 ' Cooper V. Martin, 4 East, 84. 
 
 8 Per Lord Abinger, C.B., m.Mortimore v. Wright, 6 M. & \V. 482. 
 
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CHAP, n.] RIGHTS AND OBLIGATIONS (PERSONAL). 519 
 
 even where the debts contracted are for necessaries supplied to 
 the son, whose only resource in the absence of anything to show 
 a contract on the father's part, is to apply to the parish, and then 
 the proper steps will be taken to enforce the performance of the 
 parent's legal duty.' If goods, then, are supplied to an infant 
 child without the knowledge of the father, he is not bound to 
 pay for them, for he cannot be made liable for them except by 
 way of contract.^ Since the case of Mortimore v. Wright,^ it 
 cannot be held to be law that the mere knowledge on the part of 
 the father that his child was being maintained and supported by 
 a stranger would fix him with the liability to pay for the neces- 
 saries supplied by the stranger. The law, it seems, would only 
 imply a liability to repay another for the support of his child, 
 where he has deserted it, and it was in a destitute state.'' 
 
 The above point has not yet been fully decided; and it would be 
 hazardous to venture on a confident opinion as to what the decision 
 will be; but the fact that the father is by statute responsible for 
 the maintenance of the child to the parish in which it is left de- 
 serted, is not without some force in favour of the contention that 
 he ought not, in the absence of express contract, to be held liable 
 to the stranger voluntarily providing that which he is by statute 
 bound to provide. It is further submitted that no difference would 
 be made between things which were necessaries and things which 
 were not necessaries. The child having an allowance would nega- 
 tive the theory of the implied contract on the part of the father." 
 
 But where the child dwells with the mother, who is living Liability of 
 apart from the father, a different class of questions arises, mother^ives 
 depending upon the fact whether or not she is living apart ^P*lf' yoiun- 
 voluntarily, or because of the misconduct of the husband. It is 
 a question for the jury whether a husband, living apart from his 
 wife, and allowing the children to remain with her, does not 
 constitute her his agent, and authorizes her to contract debts for 
 clothing and necessaries for them." Where the mother, of her 
 own fi-ee will, separates herself from the father and against his 
 will, and takes the child with her, she will be liable for neces- 
 saries supplied to the child, and not the father ; and since the 
 passing of the Married Women's Property Acts, 1882 and 1893, 
 her liability has become more marked ; for she now primd facie 
 contracts, unless she proves agency, so as to render herself liable ;' 
 
 ^ Shelton v. Springett, 1 1 C. B. 452. 
 
 ^ Much Y. Tollemache, i C. & P. 5 ; Urmston v. Neweomen, 4 A. & E. 899. 
 ^ 6 M. & W. 482, oven'uling the oases of Nichole v. Allen, 3 C. & P. 96, and Law 
 V. Wincin,6K. & E. 718. 
 
 * Urmston Y. Neweomen (ubi sup.). ^ Crantz v. Oell, 2 Esp. 471. 
 
 ^ Per Lord Eldon in Bawlyns v. Vandyke, 3 Esp. 252. 
 
 '■ 56'& 57 Vict. c. 63, s. I. An important fact in rebutting this 2^rimd facie liability 
 
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520 
 
 PARENT AND CHILD. 
 
 because of 
 father's mis- 
 conduct. 
 
 [part II. 
 
 and she would find it difficult, except by implication, to set up 
 successfully that she contracted as the agent of her husband 
 so as to bind him. So, too, when divorced, whether for, her 
 own or her husband's misconduct, a wife loses this capacity of 
 an agent. 
 
 Where the wife voluntarily separates herself from her husband 
 on account of his misconduct, and carries their child with her by 
 virtue of an order of Court' giving her the custody, she has the 
 power to pledge her husband's credit for necessaries supplied to 
 the child.^ This is a strong case, and one that extends the 
 liability of the father in the face of the ordinary presumption 
 that the award of the child to the mother would carry with it a 
 transfer of parental duties, as well as of parental rights. But 
 where the mother takes the child without an order of Court 
 giving her the custody, the question whether she had or had not 
 the authority to pledge the father's credit would be for the jury ; 
 and if she has separate estate, the presumption that she contracts 
 in respect of and to bind that estate would, it is submitted, under 
 such circumstances, render it very difficult for her to prove that 
 she was acting as agent for her husband. If a father allowed 
 his children to live with and be brought up by one of his 
 servants, he no doubt would be held liable on contracts entered 
 into by such servant as his agent.^ 
 
 The Divorce Court has the power to order the father to con- 
 Divorce Court, tribute to the maintenance of his children on his divorce or 
 separation,'' and to apply a part of the mother's income under a 
 settlement for that purpose when she is in fault.^ 
 
 What is technically known as Maintenance, or the amount 
 advanced out of a trust fund belonging to infants for their educa- 
 tion and benefit, where their parents' means are insufficient, will 
 be treated of under the head of " Maintenance " in Part III. 
 Guardian and Ward.^ 
 
 EclMation. — The next and now one of the most important 
 duties cast upon parents is the education of their children. 
 Modern views with respect to it differ much from those pre- 
 vailing in former times. For facility of treatment, the subject 
 will be divided into (a) Secular ; (h) Eeligious. Under this 
 latter head will be discussed the rights of the father to have his 
 
 would be the restraint upon anticipation affecting the whole of her property. See ante, • 
 Part I., Husband and Wife, chap. xv. p. 382. ^ Under 36 Vict. c. 12. 
 
 " 'Bazeley v. Forder, L. E. 3 Q. B. 559. In this case, Cookburn, G.J., differed 
 from Blackburn, Mellor, and Lush, J.J. ; and his ruling was approved by the majority 
 of the Irish Exchequer Chamber in Mea-edy v. Taylor, I. R. 7 C. L. 256. 
 
 3 Oooper V. Phillips, 4 C. & P. 581. 
 
 •* 22 &; 23 Vict. c. 61, ss. 4, 5 ; Milford v. M'dford, L. E. i P. &D. 715. 
 
 '^ JSeatle v. iSeatle, 30 L. J. P. M. & A. 216. " Fost, chap. vi. 
 
 Haintenauce 
 
 Education, 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 521 
 
 children educated in his own faith, and how such rights may be 
 modified. 
 
 a. Sectdar. — In former times, and until recently, a parent was Secular. 
 not legally compelled to educate his child ; the duty of education Education of 
 fell within the category of moral and not legal obligations. In meriy moral 
 1870 facilities for affording elementary education were provided Q^y°°ig^^*^ 
 by the Elementary Education Act, 1870;^ and school boards Elementary 
 
 ,-1 -I •, • • IT 111 !• • A.1 Education Act, 
 
 erected under its provisions could make bye-laws enforcing the 1870. 
 attendance of children at school, and punishing for the breach of 
 such bye-laws. But not until the passing of the Elementary Elementary 
 Education Act, 1876,^ was there any express statutory deolara- jg^""* '""^ " ' 
 tion as to the duty of a parent to cause his child to receive 
 efiicient elementary education. Section 4 of that Act provides 
 that " it shall be the duty of the parent ' of every child to cause 
 such child to receive efficient elementary education in reading, 
 writing, and arithmetic ; and if such parent fail to perform such 
 duty, he shall be liable to such orders and penalties as are pro- 
 vided by the Act ; " but these will not be enforced if he has a 
 reasonable excuse for not sending his child to school.^ What 
 amounts to a reasonable excuse will depend upon the circum- 
 stances of each case.* Where a parent is able to pay the school 
 fees, but sends the child without them, so sending the child is 
 not a compliance with the Education Act.'* It is true that under 
 the Elementary Education Act, 1 891," public elementary educa- 
 tion of children is made gratuitous, if the managers of a school 
 (Board or Voluntary) accept a fee grant of ten shillings a year for 
 each chUd of the number of children over three and under fifteen 
 years of age in average attendance at any public elementary 
 school in England and Wales ; but such managers are not com- 
 pelled to accept the grant, and may charge the usual fees. A 
 great majority of the schools have abolished their fees, but where 
 the fees have not been abolished, the parents must comply with 
 the requirements of the Elementary Education Act, 1870. 
 
 The compliance with the terms of this Act must be bond fide, 
 and not colourable, as by sending a child to the doors of the 
 school without the school-fees (not having had them remitted), 
 
 ^ 33 &^ 34 Vict- 0. 75. 2 39 & 40 Vict. c. 79. 
 
 ^ "Parent" includes guardian, and every person wlio is liable to maintain, or has 
 the actual custody of any child (33 & 34 Vict. c. 75, 0. 3), i.e., father and grandfather, 
 mother and grandmother of a child, who by 43 Eliz. c. 2, a. 7, are liable to maintain it. 
 A married woman having property of her own would clearly be liable under this fourth 
 section ; so, too, where the father is away, and the mother is left in charge of the 
 child. Sance v. Burnett, 45 J. P. 54 ; see also London School Board v. Jackson, 
 7 Q. B. D. 502. 
 
 * Belper School Board v. Bailey, 9 Q. B. D. 259. 
 
 ^ London School Board v. Buggan, 13 Q. B. D. 176. 
 
 ^ London School Board v. Wood, 15 Q. B. D. 415. '' 54 & 55 Vict. c. 56. 
 
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52^ PARENT AND CHILD. [part ii. 
 
 attendance'!""' ^°°^i°g *^at the child will be refused admission.^ The ages 
 between which the child must attend school are five and fourteen,^ 
 unless, being over eleven,^ it has received a certificate of its 
 efficiency in reading, writing, and elementary arithmetic, or of 
 previous due attendance at a certified efficient school, in which 
 case the child may be employed in labour ; * and the Factory Act, 
 1878,* has not altered the age up to which school attendance is 
 compulsory in the case of a child, whether taken into employ- 
 ment or not, from fourteen to thirteen/ 
 tiofon parent ^^ ^°^S as the father causes his child to receive what may be 
 th^^'ohiif ™ called a statutory elementary education, his duties towards his 
 elementary child from a legal point of view are complete. A rich man is 
 education. ^^j. ^^^^ bound (and indeed is not bound at all) to send his son 
 to an expensive public school, or employ a governess for his 
 daughter, than a poor man is bound to afibrd elementary educa- 
 tion to his ofispring. Education by the parent according to station 
 in life is yet a moral and not a legal obligation. Thus, as Lord 
 Kenyon has it, "a father was bound by every social tie to give 
 his children an education suitable to their rank, but it was a 
 duty of imperfect obligation, and could not be enforced by a 
 Court of law. The richest man in the kingdom might say to his 
 heir-apparent, ' Go and earn your daily bread by your daily 
 labour,' and the law could not interfere. There is no further 
 obligation than that which nature has implanted in his breast. 
 The law obliged him to nothing but nurture." ' 
 otherwise in This moderate obligation on the part of the father is consider- 
 
 tjl!!? CSiSd of 
 
 guardians. ably increased when the child is under the custody of guardians, 
 
 who are bound to educate their wards in a manner becoming their 
 
 Father must rank and status in society.' So, also, where the father has 
 
 education"^ permitted the maintenance and education of his children to be 
 
 sanctioned by guppjied from a strange source, and has allowed them to be 
 
 brought up with expectations founded on such maintenance 
 
 and education which he himself could not have afibrded, he 
 
 will not be at liberty to deprive them of that source of 
 
 ' Saunders y. Bichardson, 7 Q. B. D. 388, dissenting Irom Bichardson v. Saunders, 
 6 Q. B. D. 313. If the parent falls in arrear with respect to the school-fees of his 
 child, the School Board cannot maintain an action for them. School Board of London 
 T. Wright, 12 Q. B. D. 568. This would seem to bo equally the case with what are 
 termed voluntary schools, unless an actual contract had been entered into. 
 
 2 39 & 40 Vict. c. 79, s. 48. 
 
 3 Factory and Workshop Act, 1891 (54 & 55 Vict. c. 75, s. 18). In this Act there 
 is a proviso that any child on January I, 1893, lawfully employed though under eleven 
 shall be exempt, 
 
 ■* Jbid. sect. 5. " 41 Vict, c 16, s. 107. 
 
 <i Winyard v. Toogood, 10 Q. B. D. 218, dissenting from Saunders v. Crawford, 
 9Q. B. D. 612. 
 
 ' Badges v. Bodges, Peake, Add. Cas. 79. 
 ^See^ost, Guardian and Ward, chap. v. 
 
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CHAP. II ] EIGHTS AND OBLIGATIONS (PERSONAL). 523 
 
 edaoation, the effect of which has been materially to alter 
 their expectations.^ 
 
 h. Religious. — There is no duty imposed upon the parents to Eeiigious. 
 , educate their children in a particular line of religious opinion, or 
 to instil any religious views at all into them. The following 
 remarks suppose that the children have been, or are intended to 
 be, brought up with some religious belief. 
 
 It is now clearly established that except under special circum- GVMpnmd 
 stances, the father during his life has the right to choose in what educated In 
 religion his children are to be brought up,^ even where the children f**®!""? .™ii- 
 are illegitimate ; and if the Court in its discretion thinks that it 
 will not be for their benefit that their religious education should 
 be disturbed, it will refuse to deliver them up after the father's 
 death out of the custody of the persons chosen by him to that of 
 their mother.^ He cannot after his death directly prescribe in 
 what religion they shall be brought up, but he can indirectly do 
 so by appointing a testamentary guardian of that faith in which 
 he desires they should be reared and educated.' This right to Oontiaet of 
 have his children brought up in his own religion the father cannot bring'^up child 
 release ; nor can he bind himself conclusively by contract to J^ifu^*"^*' t"^^'^' 
 exercise in all events, in a particular way, rights which the law ing. 
 gives him for the benefit of his children, and not for his own.° 
 Thus, an ante-nuptial agreement between a husband and wife of 
 different religious opinions, that the children should be brought 
 up in a faith other than that of the father, is not binding in law 
 or in equity ; '' it is a mere consent on the part of the father, and 
 may be revoked by him.' This right of the father to have his 
 children educated in his own religion is recognized after his death, 
 even though he die intestate, and without having left any 
 directions as to the religion in which they are to be educated ; 
 the Court presumes that the father intended their religious 
 training should be continued in his faith. ^ Though the "Guar- Guardianship 
 dianship of Infants Act, 1886, makes the mother on the death Act, 1886. 
 of the father the legal guardian of her children where the 
 father has not appointed a guardian, she does not possess any 
 
 ^ Macph. Inf. 136, citing Colston v. Morris, Jac. 257 a., and other oases. 
 
 " Hawksworth v. Hawksworth, L. R. 6 Ch. App. 539 ; Be Arjar-Ellis, Agar-Ellis 
 V. LasceUes, 10 Ch. D. 49 ; Be Scimlan (Infants), 40 Ch. U. 200. 
 
 3 Be Vllee, 54 L. T. 286. 
 
 •• Talbot V. jEarl of Shrewsbury, 4 M. & C. 672 ; Witty v. Jlarshall, i Y. & C. C. 
 C. 68 ; Austin v. Austin, 34 L. .J. Ch. 192, 499. 
 
 •' Andrews v. Salt, L. R. 8 Ch. App. 622 ; Be 3Ieades, 5 Ir. Eq. 98. 
 
 ' Andreios v. Salt [ubi sup. ) ; Be Ayar-Ellis, Agar-Ellis v. Lascelles {uhi 
 sup.). 
 
 ' Beg. V. Smith, 22 L. J. Q. B. 116. 
 
 8 Atistin V. Austin (ubi sup.) ; Hawksioorth v. Hawksworth (uhi sup.) ; Skinner 
 V. Orde, L. E. 4 P. C. 60; Be Newbury, L. R. i Eq. 431 ; i Ch. App. 263. In these 
 last two cases the mother had changed her religion. 
 
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524 
 
 PARENT AND CHILD. 
 
 [part If. 
 
 Principles 
 applicable to 
 ■widowed 
 mother. 
 
 greater power or control over the religious education of their 
 child than that possessed by an ordinary guardian at the time of 
 the passing of the Act ; and except for any special circumstances 
 she is bound to bring up the child in the religious faith of the 
 father though of a different faith herself.' So, too, if the child 
 be a ward of Court, it is the duty of the Court to take care that a 
 fatherless ward is brought up in the religion of the father. This 
 rule of law is enforced even where it might lead to the creation 
 of a barrier between mother and child, causing pain and grief to 
 both/ But the mere fact that the mother professes a faith 
 difiering from^ that in which her child, being of tender years, is 
 to be brought up, forms no ground for separating them,^ unless 
 the child has reached the age of intelligence, and has conceived 
 such strong and fixed religious ideas that to change and disturb 
 them would be to the child's detriment.^ Such an agreement 
 between husband and wife (whether ante-nuptial or post-nuptial) 
 does not amount in law to a delegation or substitution of the 
 paternal rights, and though a separation deed is not rendered 
 invalid which provides for the father giving up the custody of his 
 child, yet he may " resile " from it, and the Court will not enforce 
 it against the interests of the child.* But if a father by a 
 separation deed has agreed that the mother shall have the 
 absolute custody and control of his infant child, and has dele- 
 gated to her the right of directing the child's religious education, 
 and if it is for the infant's benefit that effect should be given to 
 the agreement, the Court will enforce it under section 2 of the 
 Infants' Custody Act, 1873." So, too, in the case of an infant 
 orphan the Court looks altogether to the benefit of the child, and 
 though the father may have agreed that his child should be 
 brought up in a faith not his own, yet if his conduct shows that 
 he has changed his mind, and it is for the infant's benefit and 
 interest that it should be brought up in the father's faith, the 
 Court will appoint guardians for the purpose of its being brought 
 up in the father's religion.' 
 
 The principles applicable to the right of a father to control 
 the religious education of his child arc the same in the case of a 
 widowed mother whose dead husband has not directed any 
 particular religious education for his child. She has the right 
 
 1 Se Scanlan {Infants), 40 Ch. D. 200; Be ilcGrath (Infants), [1893] i Ch. 
 
 Per Wickens, V.-C. of Ducliy of Lancaster, in Hawksworth v. Hawhsworth, 
 
 '' -'Oorhett v^mfenham, I Ba- & B. 59 ; Be Browne, 2 Ir. Cb Kep^ 151 ; Austin 
 T. Amtin, 34 L. J. Ch. 192, 499. ' Be Besant 11 Ch. D 508, 519. 
 
 5 Ihid. 36 Viot. 0. 12, s. 2. ^ Condon v. I ollum, 57 U 1. I54- 
 
 !■ Be Nevin (an Infant), [1891] 2 Ch. 299. 
 
 143- 
 
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CHAP. II.] RIGHTS AND OBLIGATIONS (PERSONAL). 525 
 
 to pronounce in what faith her offspring should be educated ; and 
 where she changes her mind as to the school in which the infant 
 is being brought up, and desires to remove him from that school, 
 she can enforce her right by habeas corpus unless detriment to 
 the morals of the child would result.' Where a mother whose 
 husband was not known to be dead or alive has put her infant 
 child to a school of a particular religious faith, and afterwards 
 changes her views and desires to remove him^ she is entitled to 
 her writ of habeas 'corpus to regain control of her child, if the 
 manager of the school refuses to deliver him up, unless its 
 interests would be injuriously affected.'' It must, however, be 
 borne in mind that under the Guardianship of Infants Act, 1886, 
 a mother who survives the father of her children is now their 
 legal guardian, either alone when no guardian has been appointed 
 by the father, or jointly with any guardian appointed by him ; 
 but she has no greater powers as regards the religious education 
 of her children than those which any guardian appointed by will 
 or otherwise had at the passing of the Act; and except for special 
 reasons she is bound to educate her children in the religion of 
 their father.' Thus, where the dead father was a Protestant and 
 the surviving mother was a Roman Catholic, the Court appointed 
 ■under section 2 of the Guardianship of Infants Act, 1886, two 
 Protestants to act jointly with her as co-guardians of her infant 
 children, and directed that they should be brought up as members 
 of the Church of England.* 
 
 This right of the parent to prescribe in what religious faith the Custody of 
 child is to be educated is one that is most clearly recognized, for isgi, 
 •even where the parent is deemed unworthy by reason of mis- 
 conduct to have the custody of the child, the Court of Chancery, 
 under the Custody of Children Act, 1891,^ if it is shown that the 
 child is being brought up in a different religion to that in which 
 the parent has a legal right to have him brought up, may secure 
 that the child be brought up in the parent's religion ; though in 
 such a case the Court may consult the wishes of the child." 
 
 But under special circumstances the Courts have power to interference 
 interfere with and control this parental right. Where the ^^ere the 
 parent by his conduct, evidenced by his assent or non-dissent, fatii«r has 
 has abandoned, forfeited, or waived this right, whether in pur- forfeited, or 
 suance of an agreement or not, and allowed the child to be J^gM? '^ 
 reared in a faith not his own, the Court will consider only the 
 happiness and benefit of the child, though it may not have 
 
 1 Beg. V. Williams, 58 L. J. Q, B. 176. 
 
 2 Beg. V. Barnardo {Brookes' Case), 58 L. J. Q. B. 552. 
 
 ' Be Scanlan {Infants) {uhi sua.). * Ihid. 
 
 " 54 Vict. 0. 3. ^ Sect. 4. See Beg. v. Oyngall, 9 Times L. R. 422. 
 
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526 PAEENT AND CHILD. [part h. 
 
 imbibed so thoroughly the doctrines in which it has been raised 
 up as to make it dangerous to change its religious training.' 
 So where the acts of a deceased Protestant father indicated that 
 he had not only abandoned his right to have his child brought 
 up in his own faith, but that he intended that it should be 
 brought up in the Roman Catholic faith, and the Court was of 
 opinion that it would be most for the benefit of the child to be 
 brought up in the latter faith, its education in it was con- 
 tinued.* But where the parent has not abandoned or forfeited 
 his rights, the Court has no power to inquire whether the 
 enforcement of his rights would or would not be for the happi- 
 ness and benefit of his child.' No definition can be framed of 
 what is a forfeiture or abandonment by the parent; but it is a 
 question on which the Court must pronounce from the facts 
 proved in evidence before it."* It may be seen from the cases 
 cited below that the Court has frequently applied the rule where 
 the father is dead, but where he is alive, even though he had 
 apparently waived his rights, it would hesitate long before it 
 acted upon the waiver, if it did not altogether refuse to do so,^ 
 except where manifest injury to the child would result." An 
 ante-nuptial agreement by a father waiving his rights, which had 
 been acted upon by him, would after his death, though legally 
 not binding on him, be taken into consideration as affording 
 evidence of such abandonment and waiver,' and if the child has 
 imbibed strong religious opinions so that to alter its religions 
 views might be to imperil them altogether, the Court will refuse 
 to decree such change.' The Court would apply these principles 
 to the case of a child whose widowed mother had for a long time 
 abdicated her right to control its religious education.' 
 Examination The Court, in former days, if it thought fit, was wont to 
 Court. ^ * examine the child privately, to ascertain whether or not it had 
 received such definite impressions as would render a change 
 dangerous." The more recent practice was certainly to dis- 
 countenance such private examination as not being conducive to 
 the child's welfare, for it might tend to inculcate controversial, 
 opinions in its mind, especially where the father is alive;" yet 
 
 1 Andrews t. Salt, h. E. 8 Cli. App. 622. 
 
 2 i?e Clarke, 21 Ch. D. 817. ' Andrews v. Salt {ubi sup.). 
 
 ^ Bill T. Bill, 31 L. J. Ch. 505 ; Be Meades, 5 Ir. Eq. 98 ; Be O'MaUeys, 8 Ir. 
 Ch. Rep. 162; Re Garnett, 20 W. R. 222; Andrews v. Salt (ubi sup.); Re Agar- 
 Ellis, Agar-Ellis t. Lascelles, 10 Ch. D. 49. 
 
 5 Re Meades {ubi sup.) ; see Re Besant, 11 Ch. D. 508. 
 
 ^ Thomas v. Roberts, 19 L. J. Ch. 506. 
 
 ' Andrews v. Sait (ubi sup.). * Stourton v. Stourton, 26 L. J. Ch. 354. 
 
 8 See Reg. v. WiUiams, 58 L. J. Q. B. 176. 
 
 " Stourton V. Stourton (ubi sup. ) ; Re Sunt, 2 Con. & Law, 373. 
 
 " EawJcsworth v. Hawlcsworth, L. B. 6 Ch. App. 539 ; Be Agar-Ellis, Agar-Elhs 
 V. Lascelles {uhi sup.). 
 
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CHAP. II.] EIGHTS AND OBLIGATIONS (PERSONAL). 527 
 
 under the very recent Custody of Children's Act,' the Court has 
 power to inquire into the religious opinions of the child itself ; 
 and the Court has in a late case had an interview with a young 
 girl of fifteen for the purpose of ascertaining her religious views.'' 
 The Court will, however, disregard the opinions of a mere child 
 of eight years old or thereabouts.^ 
 
 To sum this branch of the subject, (i) The father cannot Summary, 
 make a binding contract to bring up or not to bring up his children 
 in a particular faith. (2) Where the parent has not abandoned, 
 or forfeited, or waived his rights, the Court has no power to 
 inquire whether the enforcement of the parental rights would or 
 would not be for the happiness and benefit of the child. (3) If, 
 on the contrary, he has abandoned or forfeited his rights (whether 
 in pursuance of an agreement or not), the Court will consider 
 only the iappiness and benefit of the child, and order it to be 
 continued to be educated in the religion in which it had been 
 brought up, and the child need not have imbibed so thoroughly 
 the doctrines inculcated into it as to make it dangerous to change 
 its religious training. (4) Where a father has died leaving no 
 directions for the religious education of his children, who since 
 his death have been thoroughly educated in opinions other than 
 the father's, and who have arrived at such an age that to alter 
 their course of teaching would be perilous to their religious faith, 
 the court will not decree that they should be educated in their 
 father's religion. (5) An agreement by a father to surrender 
 his control over the custody and education of his children will be 
 taken into consideration by the Court after his death, as to 
 whether or not he has abandoned his right to educate his children 
 in his own religion. (6) The Court will examine the children 
 for the purpose of eliciting their religious opinions, but will dis- 
 regard those of infants of tender age. 
 
 ' 54 Vict. c. s. 4. " Beg. v. Gyyigall, 9 Times L. R. 422. 
 
 3 Witty \. Marshall, i Y. & C. C. C. 68 ; Davies v. Davies, 10 W. E. 245 ; Be 
 Sunt (ubi sup.) (girl fifteen years old) ; Be Newbury, L. R. i Eq. 431 and I Ch. App. 
 263 ; Qanikswcrrih v. JIawksworth, {libi sup. ). 
 
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CHAPTER HI. 
 
 RIGHTS AND OBLIGATIONS OF PARENTS WITH RESPECT 
 TO THE PROPERTY OF CHILDREN. 
 
 PAGE 
 
 53" 
 
 532 
 
 Rights op Father over Child's Real Property 
 
 Rights oe Mother over Child's Real Property 
 
 Rights of Paebnts over Child's Personal Property 
 Right oe Father to Earnings op Child . 
 Right op Mother to Earnings op Child . 
 
 Relations between Step-pathbe and Step-children 532 
 Right op Father to Property op Child on the Death 
 
 op Child 533 
 
 Right op Mother S33 
 
 Right op Parent to Insure Life op Child . . • 534 
 
 Gifts prom Child to Parent 535 
 
 When Gift Valid 535 
 
 Persons in Loco Parentis 537 
 
 FAMILY Arrangements 537 
 
 Confirmation by Acquiescence 53^ 
 
 Portions among Younger Children 539 
 
 Equity Leaning against Double Portions . . 539 
 
 Ademption 54° 
 
 Satisfaction 54° 
 
 Parent Indebted to Child 542 
 
 Persons in Loco Parentis 542 
 
 Advances by Parent by Way op Portion ... 543 
 
 Transfer into Name of Child 544 
 
 Fraudulent Execution op Powers by Parents . . 545 
 Charge may be Raised before Child Actually 
 
 wants it 546 
 
 When Bargains between Parent and Child Invalid 547 
 
 Relief against Defective Execution of Powers . . 547 
 
 Transactions in Fraud op Parental Right set Aside . 548 
 
 Equity op the Heir the Ground op Relief . ■ 54^ 
 
 This chapter will deal with the rights of parents so far as they 
 extend over the property of their children ; and the duties and 
 obligations laid upon them to protect and safeguard it, and not in 
 any way to use their position to prejudice the interests or for- 
 tunes of their offspring. The chapter according to its subject- 
 matter is divided into three sections, (i) Eights of Parents 
 
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CHAP. III.] EIGHTS AND OBLIGATIONS (PROPEIETARY). 529 
 
 over Child's Property; (2) Gifts and Transactions between 
 Parent and Child ; (3) Transactions in Fraud of Parental 
 Eights. 
 
 (i) Bights of Parents over Child's Property. 
 
 As to Beat Estate. — The rights of a father over the realty accru- Rights of 
 ing to his infant child by purchase have not been defined with child's 
 much clearness or at any length, both because the father was by the P^P^"^*?- 
 common law guardian in socage of any socage land which came to his 
 child by descent, and so had superintendence of it ; ' and because 
 before the Statute of Wills,'' which gave for the first time 
 a power of testamentary alienation over real estate, there must 
 have been very few instances of an infant being enfeoffed by deed 
 inter vivos of land which he could not manage.' Blackstone, 
 citing Coke, says,"! "If an estate be left to an infant, the father 
 is by common law the guardian, and must account to his child 
 for the profits ; " ^ and " a father has no other power over his 
 son's estate than as his trustee or guardian, for though he may 
 receive the profits during the child's minority, yet he must 
 account for them when he comes of age." ^ Fitzherbert ' 
 also says that where the father occupies the land of the infant 
 which the infant has by purchase, the infant shall have an 
 account against him as bailiff of his lands. It may, then, be 
 taken to be the law that where a father enters on the estate of 
 his infant children, he is presumed to do so as bailiff or guardian, 
 and in a fiduciary position ; ^ and a decree ordering an account 
 of the profits will be made against him," though such an account 
 may be presumed to have been settled where the child has lived 
 for many years with the father, and the rents have been applied 
 in maintaining the common establishment.'" The Statute of 
 Limitations will not run in favour of the parent as against the 
 child until the latter has reached majority." 
 
 The father acquires no legal or beneficial interest in the real 
 estate by reason of his control and superintendence as natural 
 guardian."^ A father who is tenant for life of his children's 
 property will be in no better position than an ordinary tenant 
 for life, and as tenant by the curtesy he may be restrained from 
 committing waste.'' When a child becomes entitled to an 
 
 1 Seepost, Part. III. chap. ii. 2 ^3 Hen. VIII. c. I. 
 
 3 Macph. Inf. 65. ^ Co. Litt. 88. 5 I Com. 461. 
 
 «i6td453. T.N. B.I 17. 
 
 8 He Eobis, HoUs v. Wade, 36 Ch. D. 553. 
 
 9 Morgan v. Morgan, i Atk. 489. w Smith v. Smith, 23 Beav. 554. 
 " Be Mdbbs, Hdbha v. Wade (vM sup.) ; Wall v. Stanwich, 34 Ch. D. 763 ; Tinker 
 
 V. Bodwell, 69 L. T. 591. 12 jj^j. y_ Sherrington, 3 B. & A. 714. 
 
 ^' Edberts v. Edberts, Hardre, 96. 
 
 2 L 
 
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property. 
 
 530 PARENT AND CHILD. [part ii. 
 
 estate, and dies intestate aad without issue in its father's life- 
 time, the latter succeeds to the property as the nearest lineal 
 ancestor entitled to take.' 
 
 Mother. Where a mother enters upon the land of her children, her 
 
 position, with respect to them, is, like the father's, that of a 
 trustee, and she will be accountable as such, and all the rights of 
 a cestui qui trust will be enforced against her in favour of her 
 children.^ On the death of a child intestate, and without issue, 
 entitled in fee, and on the exhaustion of all paternal heirs what- 
 soever, the mother will be entitled to succeed to her child as the 
 nearest lineal ancestor entitled to take.' 
 
 Personal Personal Property. — As a rule, the parent has no rights over 
 
 the child's general property of a personal nature, and property 
 which comes to a child under age will (unless there is a direction 
 to the contrary) vest in him as though he were an adult. When 
 property comes to an infant child, and the instrument of donation 
 does not so provide, the proper step is to have a guardian 
 appointed to receive and manage the property ; in such a case the 
 parent will usually be appointed as guardian. Where parents 
 hold personal property belonging to their children, they are only 
 trustees for them, and are bound to conform to the general duties 
 and obligations imposed upon persons in a fiduciary position. 
 Though parents are the natural guardians of their children, yet, 
 owing to the possible abuse of that of&ce, they are not under 
 ordinary circumstances the proper persons to receive legacies left 
 to their infant children ; but the executors or administrators 
 charged with their payment should retain them in their own 
 hands till the infants come of age. Parents cannot, in conse- 
 quence, give a valid receipt for the legacies, so as to discharge 
 the executors. The latter can no more justify paying a legacy to 
 the parents of an infant than to the infant himself, unless the 
 testator has marked out the parents as the proper persons to 
 receive the legacies,^ or they act under the sanction of the 
 Court of Chancery,* and payment to the father of a child who 
 has not attained majority is not good, even where the child after 
 age ratifies the payment by his course of conduct.^ Where the 
 parent is the person marked out to receive the legacy, he is deemed 
 to be a trustee for the child, and entitled to receive the money, 
 and his receipt will be a good discharge to the executor.' 
 
 M & 4 Wm. rV. c. io6, s. 6. ^ Wall v. Stmwick, 34 Ch. D. 763. 
 
 3 Ihid. « Cooper v. Thornton, 3 B. C. 0. 96, 186. See post, Part lll.cbap. ti. 
 
 6 BaqUy v. Tolferry, I P. Wms. 285 ; S. C. DoyUy v. Tolferry, i Eq. Gas. Abr. 
 300, pi. 2 ; S. C. J)awley v. Sallfrey, Gilb. Eq. Kep. 103 ; Sill w. Chapman, 2 Bro. 
 C. C. 612. ^ Cooper Y. Thornton (uhi sup.). 
 
 '' Fane v. Fane, i Vera. 30 ; Cooper v. Thornton {uhi sup.]. 
 
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<;:hap. III.] EIGHTS AND OBLIGATIONS (PROPRIETARY). 531 
 
 It is a doubtful point whether or not the father is entitled to Bight of father 
 the earnings of his child. He certainly cannot claim them legally cMid™"^^ ° 
 after the child has reached the age of sixteen. The parents 
 among the artizan classes do, it is well known, take their chil- 
 dren's earnings and throw them into the common stock for the 
 support of the family. If the father once reduces the wages of 
 the child into his possession, there cannot be any doubt that the 
 chUd will be unable to recover them. Blackstone says, " He (the 
 father) may indeed have the benefit of his children's labour while 
 they live with him, and are maintained by him ; but this is no 
 more than he is entitled to from his apprentices or servants." ' 
 This proposition must be limited to children who are living with, 
 and being reared and nurtured by the parent, and not to those 
 who are emancipated and are supporting themselves ; and must 
 mean that if a child work for its parent, it cannot afterwards 
 recover on an implied contract to pay wages.^ But if a child 
 enters, as he can do,' into a valid contract of service with his 
 parent for the payment of wages, the parent will not be entitled 
 to retain such wages, but the child will be able to maintain an 
 action for them against his parent. If the father emancipates 
 the child from his control, any right to its earnings would at 
 once cease to exist. The following remarks of an American 
 writer ■* would seem to express rightly the law of the matter : 
 — " If a child, after arriving at the age of twenty-one years, then 
 continues to live, labour, and render service in the father's family, 
 
 ^ I Com. 453; Wood, Inst. Laws Eng. 65. 
 
 ^ There is a case of Ex parte MacMin, 2 Yes. Sen. 675, which very nearly touches 
 this point, but the report is obscure. It was a petition on the part of Miss Macklin, 
 daughter of the well-known actor, Charles Macklin, to be let in as a creditor of the 
 estate of her father, become bankrupt, for the money he received from the managers of 
 the theatres on her account, offering an allowance thereout for living with and being 
 maintained by him during the time of her acting on the stage. The Lord Chancellor 
 Hardwicke, in the course of his judgment, is reported to have said, " It may be 
 dangerous in London to lay it down as a general rule, that if a father having several 
 children, who earn money which he receives, becomes bankrupt, every child can come 
 and claim his debt for that money had and received, while they lived together and were 
 part of his family ; that might have a dangerous consequence. A father frequently 
 sends out his son to work as a journeyman, and his earnings are taken to be the father's. 
 Here the father, mother, and daughter were all actors, and lived together ; the father 
 received the whole. It is extraordinary to say that after a length of time this shall all 
 he called back because of an act of bankruptcy. I will refer it therefore to the 
 commissioners to inquire how much the father received to the child's use, unless as to 
 so much as was a covenant with the daughter herself." Macklin, at the time of his 
 bankruptcy was about sixty-five years old, and probably Miss Macklin was of age the 
 greater part of the time her father received her salary. What the covenant was does 
 not clearly appear ; hut she must have been in the habit of allowing him to receive her 
 weekly salary (which no doubt he had insisted on receiving), and while she claimed a 
 part of it as her own, she had agreed or covenanted with him that a certain portion of 
 it should be considered as spent in maintaining and boarding her. Thus the case is 
 scarcely an authority one way or the other on this point. See Duchworth v. John- 
 son, 4 H. & N. 653. 
 
 ^ Bex V. Chillesford, 4 B. & C. 94. 
 
 ^ Sch. Dom. Eel. s. 269, and the cases there cited. 
 
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532 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 Eight of the 
 mother. 
 
 with his knowledge and consent, but without any agreement or 
 understanding as to compensation, the law raises no presumption 
 of a promise to enable the child to maintain an action against the 
 father to recover compensation. The presumption here is, that 
 the parties do not contemplate a payment of wages for services on 
 the one hand, or a claim for board and lodging on the other ; for 
 where the relation of parent and child exists, the law will not readily 
 assume that of debtor and creditor likewise. But this presumption 
 may be overthrown, and the reverse established, by proof of an ex- 
 press or implied contract; an implied contract being proven by facts 
 and circumstances which show that both parties, at the time the 
 services were performed, contemplated or intended pecuniary 
 recompense." But such intention would need to be clearly 
 shown; and in one case' a son who was placed by his father 
 in business, accounting to his father for all the profits, deducting 
 only the expense of his board, having made no demand for wages 
 during his father's life, was held not entitled as a creditor after his 
 father's death. 
 
 If the father has the right to take his child's earnings, the 
 mother would likewise have the right to do so in a modified 
 manner. Her right would not exist in cases where the father 
 was supporting and maintaining his children, for she is then 
 under no obligation to provide for their sustenance, and recipro- 
 cally could not legally claim to be indemnified for her toil and 
 As a widow, trouble. Where she is a widow, and her children are under 
 sixteen, she is bound to support them, and her right to their 
 wages and earnings would be established on the same foundation 
 as that of the father. Again, under the Married Women's Pro- 
 perty Act, 1882,^ if she has any property she is liable for the 
 support of her children and grandchildren (though the primary 
 liability of the husband still exists : it would, therefore, follow 
 that in a case where she was bound to support her children, she 
 would be entitled to the earnings of any child under the age of 
 sixteen living with and supported by her. 
 
 Whatever right and title there may be in the parents to take 
 the earnings of their children would extend in the case of a step- 
 father to the earnings of his step-children, at any rate up to the 
 age of sixteen ; for by law he is now bound to support them till 
 they reach that age.' The step-father is in loco ^parentis to the 
 step-child ; and neither can he ask for compensation out of the 
 
 1 Plume V. Plume, 7 Ves. 258. It is true in this case that the father had left his son 
 a legacy to a greater amount than his claim, hut the Lord Chancellor (Eldon) was of 
 opinion that apart from that circumstance the father had never looked upon his son m 
 the relation of a creditor. 
 
 2 45 & 46 Vict. vi. 75, s. 21. 
 
 Relations 
 between step- 
 father and 
 step- children. 
 
 3 4 & S Wm. IV. c. 76, s. 57. 
 
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CHAP. III.] RIGHTS AND OBLIGATIONS (PROPEIETARY). 533 
 
 fortune of the child for affording means of subsistence, nor can 
 the child, if it has rendered services, claim compensation for them, 
 as though their mutual position had been that of master and 
 servant, unless the child, being of age, has stipulated to be 
 rewarded for his services,' 
 
 In the United States of America it is now settled law that as American law. 
 long as the period of the child's nurture continues, the right in 
 the father to its earnings exists.^ " In consideration of this 
 obligation on the part of the father to maintain his children, the 
 law gives him a right to all their earnings j and in case of his 
 death the mother has the right." ^ " Whether this right remains 
 absolute in the father until the child has attained fall age is 
 apparently a matter of doubt ; it is certainly perfect while the 
 period of the child's nurture continues. But if this is all it can 
 be of little consequence, because the child's labour and services 
 are for that period of little or no value ; nor could compensation 
 be thus afforded for the many years when the child was entirely 
 helpless. All will admit that the father's right continues until 
 the child reaches fourteen." * Thus, the right of action to recover 
 for the services of a minor is presumed to be in the parent ; and 
 a father has recovered the wages due to his son, who was a sailor 
 and under age, in a suit in the Admiralty.'' A father may also 
 charge for the services rendered by his child, and consider it his 
 own work." Payment to the minor of his wages does not dis- 
 charge the liability of the employer, and the parent may bring 
 an action for them against him, if he had no knowledge of the 
 hiring until after the wages were earned.' But where a father 
 has discharged himself of the obligation to support the child, by 
 emancipating him, or has obliged the child to support himself, 
 the American courts are reluctant to admit his right to the child's 
 services.^ 
 
 Where a child, minor or adult, dies unmarried and intestate Bights of the 
 possessed of personal property, the father takes the whole of it, to death of the 
 the exclusion of the mother and brothers and sisters, and other ?^^}^- 
 
 Father. 
 
 next of kin ; and if there is no nearer relation than the grand- 
 father, then the grandfather takes the whole. If the child were 
 to leave a widow, but no children, the father and the widow 
 would share his property equally. 
 
 The right of the mother to succeed under the Statute of Dig- Mother; 
 
 ° statute of Dis- 
 
 1 See ante, p. 531. _ _ tributions. 
 
 ^ Whether up to full age ia a matter of doubt. Eeeve (Dom. Eel. e. 290) thinks 
 the right exists. Chancellor Kent (2 Com. 193) does not appear to have a strong 
 opinion that it does. ^ Story, Cont. s. 142. 
 
 ^ Sch. Dom. Kel. B. 152. ^ Qifford v. Kollock, 3 Ware, 45 (Amer.). 
 
 ^ Sch. Dom. Eel. s. 252. ' White v. Henry, 24 Me. 531 (Amer.). 
 
 ^ Sch. Dom. Eel. s. 252 (a) ; Wilson v. M'Millan, 62 Ga. 16 (Amer.). 
 
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534: PARENT AND CHILD. [part ii.' 
 
 tributiona ' to her child's personal estate, in the event of its 
 dying intestate, is somewhat complicated ; and the amount of her 
 interest in the property depends altogether upon the number and 
 propinquity in blood of the next of kin. If the child dies intes- 
 tate and leaves no child, father, brother, sister, nephew, or niece, 
 then the mother takes the whole ; if the child leaves a widow, but 
 no child, father, brother, sister, nephew, or niece, then the mother 
 and the widow would share his property equally. Jf the child 
 leaves a brother or sister, or a brother and sister, the property 
 is divided equally between the mother aud her other child or 
 children as the case may be. If the child leaves a widow, and 
 brothers and sisters, the mother shares in equal proportion with 
 the brothers and sisters in half of the intestate's property. If 
 the child leaves a widow and nephews and nieces, the mother gets 
 a fourth of his property. 
 
 Grandparents, paternal and maternal, take in equal shares, 
 and where the grandmother is the sole surviving nearest 
 relation she would take the whole; thus, a grandmother 
 would take in preference to an uncle or an aunt. Posthumous 
 and half-blood relatives are in the same position as those born 
 in the lifetime of both their parents, and as those of the whole 
 blood. 
 Eight of A father has no insurable interest in the life of his child on 
 
 insure life of the mere ground of ties of blood or affection.^ The interest 
 must arise out of some subsisting right of property, which may 
 be prejudicially affected by the occurrence of the event assured 
 against, and which whether in possession, in reversion, or con- 
 tingent, would give the assured a standing in a court of equity if 
 the title were in question.^ If the father has a pecuniary interest 
 in his son's life, as where property is divested from him on the 
 death of his son, or even where the son is his debtor, he may 
 effect an insurance on his life ; and if a father (and after his 
 death possibly the mother) wishes to give his child some property 
 to dispose of, he may make an insurance on his child's life in his 
 (the child's) name, not for his own (the father's) benefit, but for 
 the benefit of his child, and there is no law to prevent him doing 
 so.'* Though a policy may be void as between the contracting 
 parties for want of insurable interest, yet if the father receive the 
 money from the insuring office, he can retain it as against the 
 child's creditors.'* An adult child has no greater insurable interest 
 in the life of his parent, as such, than the parent has in the life 
 
 ' 22 & 23 Car. II. u. 10. " Under 14 Geo. III. c. 48, s. 3. 
 
 ^ Salford v. Kymer, 10 B. & C. 724 ; Worthinffton v. Ourtis, 1 Ch. D. 419. 
 '^ Ealford \. Kymer [uln sup.). ^ Wortldngtonv. Curtis ('ubi sup.). 
 
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 child. 
 
CHAP. III.] EiaHTS AND OBLIGATIONS (PEOPRIETARY). 535 
 
 of the child ; but a like pecuniary interest is necessary to make 
 the assurance valid.' 
 
 (2) Gifts and TraTisactions between Parent and Child. A gift of Gifts and 
 property by an infant to its parent would, as in the case of a gift b™ween°°^ 
 to a stranger, be voidable by the infant, and might be recalled P^™?* ^'"^ 
 by him within a reasonable time after attaining his majority. A Gifts from 
 gift from an adult child to its parent is as perfect and valid a "^^.g^J" 
 transaction as a gift from him to a stranger; but where the 
 transfer to the parent is by way of gift or improvident contract 
 soon after the child has reached majority, then the suspicions of 
 the courts administering equity are aroused. The principle upon 
 which a court of equity acts in such a case, is to presume that 
 where a transaction takes place between parent and child just 
 after the latter has attained twenty-one, and prior to what may 
 be called a complete emancipation, without any benefit moving 
 to the child, that an undue influence has been exercised to pro- 
 cure that liability on the part of the child, and a party who seeks 
 to maintain such a transaction must show that the presumption is 
 adequately rebutted.^ Undue influence is the sense of power and 
 authority on the one side, and dependence on the other, that tempts 
 the stronger to ply his opportunity and exceed his duty. 
 
 The law on this subject is well laid down by Lord Justice When ^ift 
 Turner, in Wright v. Vanderplanlc^ "viho said, "A child may make 
 a gift to a parent, and such a gift is good if it is not tainted by 
 parental influence. A child is presumed to be under the exercise 
 of parental influence as long as the dominion of the parent lasts. 
 Whilst that dominion lasts, it lies on the parent maintaining the 
 gift to disprove the exercise of parental influence by showing that 
 the child had independent advice, or in some other way. When 
 the parental influence is disproved, or that influence has ceased, a 
 gift from a child stands on the same footing as any other gift ; 
 and the question to be determined is whether there was a delibe- 
 rate, unbiassed intention on the part of the child to give to the 
 parent." Thus, when a son, soon after attaining his majority, 
 makes over property to his father without consideration, or for an 
 inadequate consideration, equity will require the father to show 
 that the son was a free agent, and had adequate and independent 
 advice.'' But, on the other hand, if the child can be proved to be 
 a free agent, the gift from the child to the parent will be main- 
 tained ; ^ thus, in a case where about six months after a daughter 
 came of age, the creditor of her father obtained from her securi- 
 
 ' Howard v. Befage Friendly Society, 54 L, T. 644. 
 
 ^ Archer v. Hudson, 7 Beav.' 551. ^ 27 L. T. 0. S. 91. 
 
 ^ Savery v. King, 5 H. L. Cas. 627. ^ Blachhtrn v. Edgeley, I P. AVms. 600. 
 
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536 PAEENT AND CHILD. [part ii. 
 
 ties for his debt, it was held that as the creditor had not used any 
 undue or fraudulent means, or availed himself of the fraud of any- 
 other party to procure payment, the mere fact of a daughter Yolun- 
 tarily paying the debt of her father who was in difficulties, was 
 not, in itself, ground for imputing undue influence to the father.' 
 The circumstances of the case are to be taken into consideration 
 in judging of the fairness of an arrangement between parent 
 and child, and the mere fact that it was for the advantage of the 
 parent is insufficient to set it aside, though the child executed it 
 soon after coming of age.^ But where a father, tenant for life, 
 takes advantage of his son's (tenant in tail) necessities to draw 
 him in to join in any conveyance which would destroy his re- 
 mainder, the Court, upon very slender evidence of such a practice, 
 would relieve the son ; ' and where a child living under the influ- 
 ence of a parent executes a settlement under which the parent 
 derives an advantage, the child ought to be separately advised ; ' 
 for in such a case the jealousy of the Court is aroused ; but the 
 taking of the benefit by the parent does not necessarily become 
 unfair, and if unfair does not vitiate the whole of the arrange - 
 ment.° This interference on the part of equity is exercised in 
 virtue of the jurisdiction of the Court of Chancery in watching 
 over and protecting those who are placed in a situation to require 
 protection as against the acts of those who have influence over 
 them, by which acts the person having such influence obtains 
 any benefit to himself. The Court interferes " upon the ground 
 of the close attention, the strictness, and the jealousy with which, 
 upon principles of natural justice, and upon consideration impor- 
 tant to the interests of society, the law of this country examines, 
 scrutinizes, and if I may borrow an old expression, weighs in 
 golden scales every transaction between a guardian and his ward, 
 or between a parent and his child, which, including or consisting 
 of a gift from the younger to the elder, takes place so soon after 
 the termination of the legal authority, as that the ward or child 
 may, in consequence, probably be — not in the largest or amplest 
 sense of the term — not, in mind as well as in person, an entirely 
 free agent." ° This jealousy is more than ever evinced where the 
 inception of the transaction was during the minority of the 
 child. A mortgage and subsequent sale of property executed 
 by a son a very short while after attaining majority under the 
 
 1 Thornier v. Sheard, i2 Beav. 588 ; and see Firmin v. Pulham, 2 De G. & S. 99. 
 ^ Bellamy w. Sabine, 171.. J. Ch. los. ^ , t t m 
 
 3 Wallace v. WaUace, 2 Dr. & W. 452 ; see lihodes v. Cooi, 4 ^- J- ^^- H7- 
 
 4 Tucker v. Bennett, 38 Cli. D. i. = EoUyn v. Eoblyn, 41 Ch. D. 200. 
 
 6 Per Knight Bruce, L.J., in Wright v. Vanderplanh [uU sup.), p. 137. bee 
 also Turner v. Collins, L. R. i2Eq. 438. 
 
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CHAP. III.] RIGHTS AND OBLIGATIONS (PEOPEIETARY). 537 
 
 influence of his father was set aside as being prejudicial.' 
 Where a parent sets up a deed under such circumstances, two 
 things are required of him : a. that the deed was the real and 
 actual deed of the child, and was intended by the child to have 
 the operation that it has ; 6. and that the intention was fairly 
 produced. The legitimate influence brought to bear by a Parental influ- 
 parent on the child is not discountenanced by the Court ; but it exercised for 
 must be exercised for the benefit of the child subjected to it, *^® ^umj*' °^ 
 and not of the parent possessing it. Undue influence is not 
 necessarily presumed ; ^ and where it can be shown that the 
 child was a free agent, the gift will be upheld.^ But where 
 a son gives all his property to his father, the latter under- 
 taking to pay the son's debts, the presumption is that the sur- 
 plus (if any) belongs to the son in the absence of proof to the 
 contrary.* 
 
 The above rules apply where the recipient of the gift, or person Persons in loco 
 taking a benefit under the contract, is in loco parentis to the person ^'""^ ™ 
 acting under his infiuence,° as, for instance, an uncle and a niece 
 brought up in his house," also, an elder brother who has had the 
 care and superintendence of his younger brother and sisters. If a 
 stranger, knowing of the circumstances of the transaction, takes a 
 benefit under it, it wUl be set aside as against him,' but not if he is 
 ignorant of the real nature of the transaction.^ The law to be ap- 
 plied is clear, but when and in what manner depends upon the 
 circumstances of each case. It would be impossible to give an 
 exhaustive list of what facts are to be taken into consideration in 
 arriving at a conclusion, because each case must be determined 
 according to its own merits and surroundings : but there are 
 some which would always be common in every instance brought 
 before the Court for investigation on an application to set aside 
 the transaction, such as what was the age of the child at the 
 time of making the gift, whether just past or considerably over 
 majority, whether living with the parent, and so directly under 
 his control and influence, or apart from him, when the possible 
 influence would not be so strong, also the strength or weakness 
 of the mind and wiU of the child. 
 
 There are, however, some conditions under which the parental Family 
 influence is allowed to have greater force and weight than under 
 others, and a broad distinction is drawn between them if family 
 arrangements are carried out, or family disputes settled by the 
 
 1 Savery v. Kiny, 5 H. L. Cas. 627. 
 
 ^ Bliodes V. Coolc. [uhi svp.) ; Thornber v. Sheard [ubi sup.). 
 
 *• Blackhum v. Edgeley, I P. Wms. 609. * May v. May, 33 Beav. 81. 
 
 ^ Beasley v. May nitli, 2 Soh, & L. 31. " Archer v. Hudson, 7 Beav. 551. 
 
 ' Ibid. ^ Thornber v. Sheard (ubi sup.). 
 
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538 PARENT AND CHILD. [paet ii. 
 
 agreement between parent and child, and the latter afterwards 
 complains of the influence brought to bear upon him by the 
 former ; yet if the agreement be reasonable, the Court will not 
 set it aside, on the ground that the arrangement was to the 
 Parental mflu- advantage of the family.^ " If the settlement of the property be 
 
 ence allowed if • i ■ i j.i n , i . r r j 
 
 arrangement is One m wnicti tne lather acquires no benefit not already possessed 
 fOT the femiiy. ^y ^^> ^^^ ^^ ^^^ Settlement be a reasonable and proper one, the 
 Court will support it, even though it may appear that some 
 influence was exerted by him to induce the son to execute it ; 
 and provided also that there was no suppression of what is true ; 
 or suggestion of what is false ; " ' and it is not essential that the 
 child should have independent advice, and the Court will not 
 inquire whether the influence of the parent was exerted with 
 more or less force.' Where family lands are settled in strict 
 settlement, of which the father is tenant for life, and the eldest 
 son is tenant in tail in remainder, it is a most common arrange- 
 ment for the eldest son, on attaining majority, either on marriage 
 or in consideration of a present advance, or some other con- 
 sideration, to agree to reduce himself to a tenant for life, with 
 remainder to his eldest son and other sons in tail ; an arrange- 
 ment of this kind is upheld, though the son gives up some of his 
 rights, as being for the benefit of the family in preserving the 
 estates.^ Again, where there is a family dispute, an arrangement 
 based on a compromise will be upheld;* or where there is a 
 mutual benefit accruing to father and child.* But the son must 
 have a reasonable knowledge and appreciation of what he is 
 doing,' and the father must not alone take a benefit under the 
 arrangement, otherwise it will be set aside.' The Court must be 
 satisfied by clear and unequivocal evidence that the nature of the 
 transaction was understood, if it is to stand.' 
 An-angement A transaction vitiated by undue parental influence will be set 
 aside as against aside, as against a third person, if he take a benefit under it 
 third person, knowing of the circumstances existing between parent and child;'" 
 but such knowledge on his part must be actual and not merely 
 Conflrmation constructive." These gifts or transactions, which might have 
 cence^&c.^' been set aside within a reasonable time of their taking place, may 
 become confirmed and binding by acquiescence,'^ or by the persons 
 
 ^ Cory V. Cory, i Ves. Sen. 19 ; Stapleton v. Stapleton, i Atk. 2. 
 2 Per Eomilly, M.R., in Hoghion v. Hoghton, 21 L. J. Ch. 482. 
 '^ Hohlyn v. BobJyn, 41 Ch. D. 200. <* Hoghton v. Hoghton {uU sup.). 
 
 5 Partridge v. Smith, 9 Jur. N. S. 742. 
 " Bosville V. Middleton, 29 L. T. 0. S. 742. 
 ' Meadows v. Meadows, 16 Beav. 401, 
 
 8 Falmer v. Wlieeler, 2 Ba. & B. 18. " JDavies v. Davies, 4 Giff. 417. 
 
 ^'' Archer v. Hudson, 7 Beav. 551 ; JSavery v. King, 5 H. L. Cas. 627 ; see also 
 Falmer V. Wheeler (uhi sup.). ^^ Macqueeny. Farquhar, 11 Ves. 467. 
 
 ^^ Turner \. Collins, L. K. 7 Ch. App. 329. 
 
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CHAP, m.j RIGHTS AND OBLIGATIONS (PEOPRIETAEY). 539 
 
 who had the right to set them aside acting on them,' or recog- 
 nizing them as valid/ or allowing third persons to acquire rights 
 under them/ 
 
 A gift from a parent to a child is as valid and perfect as from Gifts from 
 one stranger to another. When a father parts with property in cmm! 
 favour of his son, it becomes as between them the exclusive pro- 
 perty of the son as much as if it had been given to him for 
 valuable consideration.^ The parent must have an intention of 
 making an immediate present gift, and not a gift to take effect 
 in the future.* 
 
 Some of the more important donations from parents to children Portions 
 are portions which are to be divided among younger children, oSfi^n!"^"^^' 
 whether to be raised out of realty by a power reserved to the 
 parents by the settlement of the land, or out of personalty in 
 accordance with a power of appointing a particular fund among 
 their children, and legacies from parents to children ; for a legacy 
 coming from a parent to a child must be understood as a portion, 
 though not so described in the will." It is generally reserved to 
 the parents to revoke any appointment made by them on behalf 
 of their child or children ; but where for valuable or other 
 consideration the appointment is declared to be irrevocable, 
 the interest of the appointee in the property appointed is inde- 
 feasible. 
 
 The aim and object of portions is to secure a competency for Object of 
 the younger children of the marriage;^ and the guiding principle secure compe- 
 of the law in reference to them is to secure an equality of division, ^^^J°^' 
 BO that while no child shall be excluded, no one shall take a children. 
 double share. It not infrequently happens that a child will 
 have a portion appointed to it, and a legacy left it by the parent, 
 or has a legacy left it and subsequently has a portion appointed 
 to it, and the question may then arise whether the legacy or 
 appointed portion is to be held as an additional sum in favour 
 of the appointee or legatee, or as a satisfaction of the portion, 
 or an ademption of the legacy. If the intention of the parent 
 is clearly expressed no doubt can arise, but in cases where such 
 expression of intention is absent then difficulties do arise. 
 
 The Court of Chancery, as administering equity, ever leans Equity leaning^ 
 strongly against double portions, and endeavours to secure portions."" 
 equality of division among younger children, so that one child 
 
 1 Sogers v. Bruce, Beatt. 486. '' Wright v. Vanderplanh, 27 L. T. 0. S. 91. 
 
 ^ Jarratt t. Aldam, L. E. 9 Eq. 463. 
 
 * Per Sir J. Romilly, M.R., in May v. Mai/, 33 Bear. 81, 87. 
 
 5 Be Bidgway, Ex parte Bidgway, 15 Q. B. D. 447. 
 
 6 Ex parte Pye, 18 Ves. 140 ; 2 W. & T. L. C. 364._ 
 
 ' Younger children are children other than the child yiho has succeeded to the 
 family estate ; Be Bayley's Settlement, L. E. Ch. 6 App. 590. 
 
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540 
 
 PARENT AND CHILD. 
 
 Ademption. 
 
 Satisfaction. 
 
 [part II. 
 
 shall not be unduly favoured at the expense of the others ;' and 
 it IS immaterial how the inequality in favour of one or more of 
 the children arises. Where a parent has left a legacy, and 
 afterwards appoints a portion to that child under a power in the 
 settlement, the legacy, unless there are reasons to the contrary, 
 is presumed to be adeemed, i.e., cancelled or taken out of the 
 will.2 As between parent and child the presumption arises that 
 a parent does not intend to give double portions to his children. 
 When a parent by will gives a benefit to a child and afterwards 
 on marriage or some other event makes a settlement upon the 
 child, the later provision is considered as an ademption of the 
 previous gift by will unless it can be seen either by parol tes- 
 timony as to the intention of the parent, or by something appear- 
 ing on the documents that the child is intended to have both.' 
 A gift of a share of residue by a parent's will, may be adeemed 
 by a gift by deed of his business (part of the residue) ; and the 
 mere fact that the parent retains some advantage for himself 
 under the deed does not prevent the rule against double portions 
 applying.^ The gift subsequent to the legacy (to effect an 
 ademption) must be of the nature of a bounty on the part of a 
 parent ; therefore if it can be shown that the subsequent gift was 
 made in consideration and remuneration of the services of the 
 child, the presumption against double portions is rebutted, even 
 where it may be presumed that the subsequent gift was made by 
 way of portion.* 
 
 Where a parent appoints a portion to a child, and afterwards 
 gives a legacy (whether certain in amount or residuary) to the 
 same child, the presumption is, unless there are reasons to the 
 contrary, that the portion is satisfied by the legacy, on the assump- 
 tion that the maker of the second instrument supposed himself 
 to be substantially satisfying the obligation of the first." Thus, 
 if a father has made a provision by way of covenant in favour 
 of his child before the date of his will ; then, unless it appears 
 upon the will or by parol testimony that he intends to give the 
 benefit conferred by the will in addition to that which is already 
 
 1 Ex parte Pye, l8 Ves. 140 ; Hartopp v. Hartopp, 19 Ves. 184 ; Be Fitzgerald's 
 Settled Estates, Saunders t. Boyd, [1S91J 3 Ch. 394 ; Montague v. Sandwich (Earl of), 
 32 Ch. D. 525. 
 
 ^ Lord Chichester v. Coventry, L. E. 2 H. L. 71, A residuary tequest lias the 
 same effect: Lady Thynne v. Earl of Qlengall, 2 H. L. Cas. 131. 
 
 3 Montague v. Sandwich [Earl of) (uhi sup.). 
 
 * Be Vickers, Vichers v. Vickers, 37 Ch. 1). 525. 
 
 ^ Be Lacon, Lacon v. Lacon, [1891] 2 Ch. 482. 
 
 ^ Ex parte Pye (uhi sup.) ; Earl of Durham v. Wharton, 5 L. J. Ch. 17. " Satis- 
 faction may be defined to be the donation of a thing, with the intention, either express 
 or implied, that it is to be taken wholly or in part, in extinguishment of some prior 
 claim of the donee." 2 W. & T. L. C. 382. 
 
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CHAP, III.] RIGHTS AND OBLIGATIONS (PROPRIETARY). 541 
 
 secured to the child by covenant, then the child will not take 
 both.^ 
 
 To sum up these two rules, it may be said that a portion adeems 
 a legacy or residuary bequest ; and a legacy or residuary beqaest 
 satisfies a portion. There are marked distinctions between ademp- Distinction 
 tion and satisfaction. In cases of satisfaction the persons intended fa^ctTo^n'and '^" 
 to be benefited by the covenant, and the persons intended to be ademption. 
 benefited by the bequest or devise, must be the same ; in cases of 
 ademption they may be and frequently are diif^rent. Another 
 distinction is that in the case of satisfaction the person doubly 
 benefited must elect to take either under the covenant or the will. 
 Difficult and intricate questions frequently arise in construing 
 these transactions, and much depends upon the evidence of inten- 
 tion on the part of the donor of the benefits. The rule is much 
 easier of application when the first provision is made by will, and 
 the second by deed, than where the first provision is by settle- 
 ment, and the will follows.^ In the former case the provision by 
 will is under the absolute control of the person making it up to 
 the time of his death. But where a parent provides for a child 
 by a settlement binding upon him, and afterwards makes pro- 
 vision for him by will, he cannot substitute the legacy for the 
 benefit conferred by the settlement without the consent of those 
 benefited by the settlement, and thus the difficult question of 
 what was the intention of the testator is raised.' A legacy by 
 a parent is not, however, deemed to be satisfied by occasional 
 small gifts in the testator's lifetime,* or by such gifts as a sum 
 of money presented by a father to his daughter for her wedding 
 outfit and the honeymoon.^ The presumption of satisfaction is Presumption 
 only one of law, and may be rebutted ; as where the two provisions by'sUghtvaria- 
 by the different instruments are of a different nature;" but merely tion between 
 slight differences between the limitations of the will and the provisions. 
 settlement, as, for instance, different powers of investment, 
 different trustees, and variation in the power of appointment, will 
 not, if the two provisions are substantially of the same nature, 
 negative the rule against double portions.' There must be strong 
 evidence on the second instrument that the child was intended to 
 get a double portion.^ This is really a question of the intention 
 
 1 Montague v. Sandwich (Earl of) (uhi sup.). 
 ^ See Me Lacon, Lacon v. Lacon [uhi sup. ). 
 
 ^ Per Cranworth, L.C., in Lord Chichester v. Coventry {ubi sup.}. For a full dis- 
 cussion of this subject see Ux parte Pye [ubi sup.). 
 
 * Be Peacock's Estate, L. E. 14 Eq. 236 ; S. C. 24 L. T. 472. 
 
 5 Bavenseroft v. Jones, 33 L. J. Ch. 482. 
 
 ^ See Lord Chichester v. Coventry (ubi sup.), 
 
 1 See Mayd v. PieU, 3 Ch. D. 587. 
 
 8 Per Turner, L.J., in Lord Chichester v. Coventry {ubi sup.). 
 
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f)42 PARENT AND CHILD. [part ii. 
 
 of the donor as to whether the child benefited is to be put to his 
 election or not.' In the case of the satisfaction of the portion 
 previously secured by will, slighter circumstances are adequate to 
 repel the presumption than they are in the case in which the 
 gift by way of settlement follows the will.^ This rule does not 
 extend to a gift made to a child before the date of the will, for 
 there is no presumption of law that the payment of a sum of 
 money to a child by a parent before the date of the will is to go 
 against a legacy to that child.' 
 
 It is now settled (though formerly controverted) that when 
 the adeeming or satisfying amount is less than the original sum 
 (whether covenanted to be paid, or left as a legacy), such smaller 
 sum is only a pro tanto- and not total ademption or satisfaction.^ 
 Parent Where a parent owes a debt to a child, a subsequent legacy 
 
 ciiiid. will not, in the absence of intention, express or implied, be con- 
 
 sidered a satisfaction of the debt unless it be either equal to or 
 greater than the debt in amount ; and the presumption of satis- 
 faction will not be repelled by any of those slight circumstances 
 which will take a bequest of such amount to a stranger out of 
 the general rule.* Where a parent is indebted to a child, and 
 makes in his lifetime an advancement to the child, as upon mar- 
 riage, or some other occasion, of a portion equal to or exceeding 
 the debt, it will primd facie be considered a satisfaction, and it 
 is immaterial whether the portion be given in consideration of 
 natural love or affection, or whether property be settled by the 
 other party in consideration of it, or whether, in the case of a 
 father to a daughter, the husband be ignorant of the debt.° 
 Persons in loco This rule against double portions extends to the case of persons 
 not actually parents, but who stand in loco parentis; and where 
 such a person gives a legacy for a particular purpose, and after- 
 wards advances money for the same purpose, a presumption arises 
 that it was intended, and it will accordingly be held as an ademp- 
 tion of it.' But where the person does not stand in such a 
 relation, or the facts do not disclose any intention of satisfaction, 
 the presumption will not arise.^ This doctrine of ademption of 
 legacies founded on parental or quasi-Tparental relations, applies 
 also to cases where a moral obligation other than parental or 
 
 * Be Battersby^s Estate, 19 L. E. Ir. 359. 
 
 ^ Lord Chichester v. Coventry, L, E. 2 H. L. 71; Tussaud v. Tussaud, 9 Ch. D. 363. 
 
 ^ See Taylor v. Cartiorightfli. E. 11 Bq. 16^. 
 
 * Pym V. Lochyer, 5 Myl. & Cr. 29 ; Lady Thynne v. Earl of OlengaU, 2 H. L. 
 Gas, 131 ; Be PoUosk, Bollocky. Worrdll, 28 Gb. i). 552 
 
 ^ Tolson V. CoUijis, 4 Ves. 483. The rule is Debitor Tion presumitur donare. 
 ^ Wood V. Briant, 2 Atk. 521 ; P\unlcett y. Leiois, 3 Ha. 316. 
 ' Monck V. Monck, i B. & B. 303 ; FoioJces y. Pascoe, L. R. 10 Ch. App. 343. 
 ^ Panlihurst v. Howell, L. R. 6 Ch. Ap|). 136. 
 
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CHAP. III.] EIGHTS AND OBLIGATIONS (PROPRIETARY). 543 
 
 gMas^-parental is recognized in the will, though without reference 
 to any special application of the money. ^ 
 
 Where a parent has made advances to a child " by way of Advances by 
 portion," and dies intestate, the child so advanced is not entitled of^^tion.^*'' 
 to a share under the Statutes of Distributions^ in the residue of 
 the intestate's property unless it brings into hotchpot the sum or 
 sums so advanced to it in order to equalize the share taken by 
 each child of the deceased intestate parent.^ An advancement 
 by way of portion has been defined to be " something given by 
 the parent to establish the child in life, or to make what is called 
 a provision for him,"'' but this opinion was disapproved of by what are 
 Pearson, J., in Be BlocUey, BlocUey v. Blockley;' and in Boyd ''^''^'"'^'^^''^^■ 
 V. Boycl^ Wood, V.-O., said, " Whenever a sum is paid for a par- 
 ticular purpose, which is thought good and right by the father, 
 and which the son himself desires, if it be money which is drawn 
 out in considerable amount, and not a small sum, it must be 
 treated as an advance. The payment of the money is the im- 
 portant thing ; the Court does not look to the application.'' But 
 where the gift is of the nature of remuneration for the child's 
 services, then the child is not bound to account for, or bring into 
 hotchpot, such advance.' Sums given for the following objects 
 have been held advancements : — Payment of admission to one of 
 the Inns of Court in the case. of a son intended for the Bar;* 
 purchase of a commission (in the days of army purchase)" and an 
 outfit of a son entering the army;'" the price of plant and 
 machinery and other payments for starting a child in business ;" 
 
 1 Re FoUock, Pollock v. WorraU (ubi sup.).- 
 ^ 22 & 23 Car. II., c. 10 ; i Jao. II., 0. 17, s. 7. 
 
 ' 22 & 23 Car. II., c. 10, s. 5 : — " All ordinaries and every other person who by this 
 Act is enabled to make distribution of the surplusage of the estate of any person dying 
 intestate, shall distribute the 'whole surplusage of such estate or estates in manner and 
 form following, that is to say, one-third part of the said surplusage to the wife of the 
 intestate, and all the residue by equal portions, to and amongst the children of such 
 persons dying intestate ; and such persons as legally represent such children, in case 
 any of the said children be then dead other than such child or children (not being 
 heir-at-law) who shall have any estate by the settlement of the intestate, or shall be 
 advanced by the intestate in his lifetime, by portion or portions equal to the share 
 which shall by such distribution be allotted to the other children to whom such 
 distribution is to be made ; and in case any child, other than the heir-at-law, who shall 
 have any estate by settlement from the said intestate, or shall be advanced by the said 
 intestate in his lifetime by portion not equal to the share which shall be due to the 
 other children by such distribution as aforesaid, then so much of the surplusage of the 
 estate of such intestate, to be distributed to such child or children as shall have any 
 land by settlement from the intestate, or were advanced in the lifetime of the intestate, 
 as shall make the estate of all the said children to be equal as near as can be estimated ; 
 but the heir-at-law, notwithstanding any land ho shall have by descent or otherwise from 
 the intestate, is to have an equal part in the distribution with the rest of the children, 
 without any consideration of the value of the land which he hath by descent or 
 otheiTvise from the intestate." 
 
 * Per Jessel, M.R., in Taylor v. Taylor, L. E. 20 Eq. 155-157. 
 5 29 Ch. D. 250. 6 L. E. 4 Eq. 305. 
 
 ' Be Lacon, Laaon v. Lacon, [1891] 2 Ch. 4S2. ^ Taylor v. Taylor (ubi sup.). 
 Ibid. ; see Bowles v. Bowles, 7 Jur. 665. i" Ibid. 11 Ibid. 
 
 9 
 
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544 PARENT AND CHILD. [part ii. 
 
 What are not a gift to a child to pay a debt." The following have been held 
 ■ not to be advances : — Mere casual payments made at odd times 
 without the definite purpose of establishing the child in life, even 
 though necessary to maintain him ia the position acquired by a 
 previous advancement f or annuities paid by a father to his 
 daughter pursuant to his covenant in a separation deed ;^ these 
 are rather allowances in the nature of maintenance. A liability 
 by a parent as surety for a child which is afterwards enforced 
 against the executors of the parent is not an advancement.^ 
 
 The like necessity of bringing advancements into hotchpot 
 arises where the parent leaves a will with a hotchpot clause ; and 
 the effect of that clause is to prevent the child advanced (without 
 bringing into hotchpot the sum advanced to him) from taking 
 any further part of the disposable fund, and to give to the other 
 objects of the will that portion of the fund which, bat for the 
 hotchpot clause, he would have taken.* Money paid by the 
 testator under a guarantee, and purchase-money of a business 
 sold by the testator to a child, would be an advancement,'^ but 
 not money which the testator was never entitled to receive during 
 his life,' nor money advanced before the date of the will, nor 
 small sums whether before or after that date.' 
 
 Transfer into Sums transferred by a parent into the name of a child will, in 
 the absence of rebutting evidence, be presumed to be advance- 
 ments, and not to create a resulting trust for the transferror.* 
 If it is proved in evidence that no benefit was intended, then 
 the presumption is rebutted, and there will be a resulting trust 
 for the parent J '" and where the parent continues in possession 
 of the fund, the intended benefit must be a present one, and not 
 a purchase with a view to an ultimate one ; and where a present 
 benefit is intended, it is of course inconsistent with the reserva- 
 tion of any beneficial interest." " Where a father purchases 
 property in the name of his son, without making any formal 
 declaration of trust, it is either a gift to the son absolutely or he 
 is a trustee for his father. If the son is a trustee at all, he is 
 wholly a trustee ; but the strong presumption of law is that he is 
 
 1 Re Blockley, Bloddey v. Blockley, 29 Ch. D. 250 ; SeWhiteJwuse, WJiitehouse v. 
 Edwards, 37 Ch. D. 683. 
 
 2 Boyd V. Boyd, L. K. 4 Eq. 305 ; Taylor v. Tayhr, L. E. 20 Eq. 155 ; see Pusey 
 V. Desbcmverie, 3 P. Wms. 317, note 0; Watson v. Watson, 33 Beav. 574. 
 
 3 ffatfield V. Minet, 8 Ch. D. 136. 
 
 * Be Whitehome, Whitehouse v. Edwards {uU sup.). 
 
 5 See Warde v. Firmin, 11 Sim. 235. 
 
 6 Austen v. Powell, i De G. J. & S. 99. ' Ibid. 
 
 8 Be Peacocle's Estate, L. B. 14 Eq. 236 ; S. C. 27 L. T. 472 ; Be Orme, Evans 
 V. Maxwell, 50 L. T. 51. 
 
 " Grey v. Orey, i Ch. Cas. 296 ; Dyer v. Dyer, 2 Cox, Eq. Gas. 92 ; Sayre v. 
 Sughes, L . E. 5 Eq. 376 ; Fowkes v. Pascoe, L. E. 10 Ch. App. 343. 
 
 " Dumper v. Bumper, 3 GifF. 503. ^' nid. 
 
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CHAP. III.] RIGHTS AND OBLIGATIONS (PROPRIETARY). 545 
 
 not a trustee. It is said that the taking possession by the father 
 at the time of the purchase is insufficient in general to rebut the 
 presumption, but this does not, I conceive, apply where there is 
 a formal and unmistakable act of taking possession. Suppose a 
 man bought a shop, and put his own name over the door, that 
 would be an ostensible taking possession, sufficient to show 
 ownership in the father and trusteeship in the son.'" But where 
 a parent advances money for the purpose of qualifying the child 
 for a particular position, and with no intention of making an 
 absolute gift of the money so advanced, there is no presumption 
 of advancement, but the child will hold, if necessary, the qualifying 
 property as trustee." 
 
 This presumption is not limited to the case of father and child, Presumption 
 but arises in the case of those who put themselves in loco parentis lons^inio'm"' 
 to the child advanced, as grandfather and grandchild,' mother and i"'''««^'«- 
 child,'' uncle or aunt and nephew and niece,* and parents and their 
 bastard children.^ In these cases the intention to advance is a 
 question of evidence.' 
 
 Parents that are donees of powers of appointment under Fraud on 
 settlements must exercise them straightforwardly and honestly, parent! ^ 
 Where the power is not honestly exercised, the person improperly 
 appointing is said to commit a fraud on the power.' A fraud is 
 committed on the power when exercised by the appointor with 
 an absence of good faith and sincerity, and with an ulterior and 
 sinister motive for the exercise. ° Thus a power was held to 
 have been fraudulently executed in the following instance, in 
 which the father appointing deliberately intended a benefit to 
 result to himself : By a power in a settlement a father could 
 raise a portion for a younger child at such time as he should 
 direct ; he directed it to be raised when the child was fourteen, 
 who shortly afterwards died ; the father, as her administrator, 
 afterwards filed a bill to have the portion raised for his own 
 benefit, but the bill was dismissed."" This decision was based 
 
 ^ Per Wickens, V.-C, in /Stock v. M'Avoy, L. E. 15 Eq. 55, 58. 
 
 ^ He Oooch, Gooch v. Gooch, 62 L. T. 384. 
 
 ^ Ebrand v. Dancer, 2 Cb. Cas. 26 ; but see Tucker v. Burrow, 1 1 Jur. N. S. 525. 
 
 * Same v. Hughes {uhi sup.) ; Batstone y. Salter, L. E. 10 Ch. App. 431 ; Be 
 Orme, Evans v. Maxwell, 50 L. T. 51. 
 
 ^ Currant v. Jago, 8 Jur. 610. ^ Beckfm'd v. Beckford, Lofft, 490. 
 
 ' Bennett v. Bennett, 10 Cli. D. 474. 
 
 ^ Farwell, Pow. pp. 404 et sea. See Whelan v. Palmer, 39 Ch. D. 648. 
 
 ^ See Duke of Portland v. Topham, 11 H. L. C. 32. 
 
 10 Lord JSinchinhroke v. Seymour, 1 B. C 0. 395. This case as reported by Brown 
 mast be taken to be inaccurately reported; the facts are thus stated by Jesse), M.E., in 
 Henty v. Wrey (21 Ch. D. 332, 341). Lord Hinchinbroke married the daughter of the 
 Earl of Halifax ; on the marriage the Earl settled the Halifax estate on himself for life, 
 then to Lord Hinchinbroke, his son-in-law, for life ; and then it would have gone to the 
 first and other sons of the marriage (if any), and in default it went over to a nephew or 
 cousin of Lord Hinchinbroke, the infant defendant Montagu. Then there was the 
 
 2M 
 
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5i6 PARENT AND CHILD. [part ii. 
 
 upon the ground that the appointment by the father, under the 
 Charge may be circumstances, was a fraud upon the power. There is no such 
 child actually rule of law (as is stated in that case), that a charge on behalf of 
 wants It. children cannot be raised till the children actually live to want 
 it.^ So, where a father had a power of charging portions for 
 younger children on real estate under a settlement, which gave 
 him in the clearest terms power to fix the ages and times at 
 which the portions should vest, and contained no provision for 
 raising portions in default of appointment, and accordingly he 
 appointed a sum in favour of his three younger children, their 
 shares to vest immediately on the execution of the deed, and two 
 of the children died a few years after, minors, their father, who 
 survived them, taking their shares, it was held that the amount 
 of their shares was raisable in favour of a person to whom he had 
 assigned it by way of mortgage or security, and that where a 
 donee of such a power has clear authority to fix the times at which 
 portions shall vest, and appoints a portion to vest immediately, 
 there is no rule of law which prohibits its being raised in the event 
 of the child dying under twenty-one and unmarried, and that the 
 appointment, so far as it made the portions vest immediately, 
 was not a fraud on the power, as being made with a view to 
 secure a benefit to the appointor, for that having regard to the 
 fact that if the father had died without making any appointment, 
 the children would have been unprovided for, it was manifestly 
 for the benefit of the children that the father should make an 
 appointment, and that as there was nothing to lead to the 
 conclusion that when the appointments were made the children 
 were likely to die young, and as in the event of the early death 
 of the appointor the children might have derived a benefit from 
 the absolute vesting of their portions, there was no ground for 
 attributing to him an intention to benefit himself by making the 
 portions vest immediately.^ 
 
 Powers to appoint portions charged on land ought, if their 
 language is doubtful, to be construed so as not to authorize 
 appointments vesting those portions in the appointees before 
 they want them, that is, before they attain twenty-one or (if 
 
 clause shortly stated in Brown's report, providing the ;£'io,ooo for the portioning of 
 younger children ; but an important limitation is omitted in the report, namely that in 
 default of appointment the ;^io,ooo would have gone to the daughter on her attaining 
 the age of twenty-one or marrying, wilh a provision for her maintenance in the meantime. 
 At the time of the appointment the daughter was in a consumption, and died the 
 following year ; the father was aware of her state. The facts, as above stated, show 
 that a gross fraud on the power was contemplated, and the bill was dismissed on that 
 ground. See remarks of Lord Eldon in M'Queen v. Farquhar, ii Ves. 467, 479, and 
 Case of the Queensberry Leases, 1 Bli. 339, ^97, and of Sir Edward Sugden in Keily v. 
 Keily, 2 Dr. & War. 38, 55. But see Wellesley v. Lord Mornington, 2 K. & J. 143. 
 1 Eenty v. Wrey, 21 Ch. D. 332, reversing 19 Ch. D. 492. ^ Ibid. 
 
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CHAP. III.] RIGHTS AND OBLIGATIONS (PROPRIETARY). 547 
 
 daughters) marry ; where the language of the power is clear and 
 unambiguous,' effect must be given to it. Where upon the true 
 construction of the power and the appointment the portion has 
 not vested in the lifetime of the appointee, the portion is not 
 raisable but sinks into the inheritance. Where upon the true 
 construction of both instruments the portion has vested in the 
 appointee the portion is raisable even although the appointee 
 dies under twenty-one or (if a daughter) unmarried. Appoint- 
 ments vesting portions charged on land in children of tender 
 years who die soon afterwards are looked at with suspicion ; 
 and very little additional evidence of improper motive or object 
 will induce the Court to set aside the appointment or treat it as 
 invalid, but without some additional evidence the Court cannot 
 do so.^ 
 
 A parent cannot bargain with his children on executing a When bargains 
 
 f. . . J. • j_i • ^ J? , 1 1 p j_i between parent 
 
 power or appomtment in their tavour tor the purchase oi other and child 
 expectant shares belonging to them ; ^ nor can he stipulate for ™^ai"J- 
 any advantage for himself or on behalf of a stranger. It is the 
 fact of bargaining that renders the appointment consequential 
 upon the bargain invalid and of no effect. But the mere fact 
 that the donee of the power derives some benefit from the 
 exercise of the power does not necessarily render the appointment 
 invalid.^ 
 
 A person to whom any power, whether coupled with an interest Transfer to 
 or not, is given, may release the power under the Conveyancing fimd'over 
 Act, i88i.^ A father who possesses a power over a fund in ^'^y"^g^°ye'^ 
 favour of his children with a life interest in it may, if he becomes 
 entitled in right of a deceased child, call upon the trustees of 
 the fund to transfer that portion of it to which he has become 
 entitled on his releasing his power of appointment and surren- 
 dering his life interest in such portion.^ The surrender of the 
 life interest in such a case renders the fund of which the father 
 claims the transfer liable to the debts of the deceased child, and 
 the father takes the fund subject to the payment of any debts as 
 sole personal representative of his child.^ 
 
 It sometimes happens that the donee of a power fails to comply Defective 
 with all the directions for the execution of the power, whereby it powers?" °^ 
 becomes defective ; and in cases where the defects are not of the i^«iief i" 
 essence of the power, equity will interpose and remedy the defect 
 
 ^ Per Lindley, L.J., in Henty v. Wrey, 2i Ch. D. 332, 359. 
 
 ^ Farwell, Pow. 407, citing Cunyngharm v. Anstruther, h. E. 2 Sc. & D. App. 
 
 223- 
 
 3 Me Huish's Charity, L. R. 10 Eq. 5 ; Cooper v. Cooper, L. R, 5 Ch. App. 203. 
 See Whelan v. Palmer, 39 Ch. D. 648. ^ 44 & 45 Vict. 0. 41, s. 52. 
 
 5 Smith V. HouUon, 26 Beav. 482 ; Be Baddiffe, Badcliffe v: Beuies, [1892] i Ch. 
 227. ^ Be Badcliffe, Baddiffe v. Sewes (uhisup.). 
 
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548 
 
 PARENT AND CHILD. 
 
 [part ir. 
 
 Transactions 
 in fraud of 
 parental 
 rights. 
 When set 
 aside. 
 
 Equity of the 
 heir the 
 ground of 
 relief. 
 
 and carry out the intention of the donee for the benefit of those 
 intended to take an interest under it. The rule has been stated 
 to be that " whenever a man having power over an estate, whether 
 ownership or not, in discharge of a moral or natural obligation, 
 shows an intention to execute such power, the Court will operate 
 upon the conscience of the heir (or of the persons entitled in 
 default), to make him perfect this intention.^' ' Thus, where 
 there is a defective execution of a power for the provision of a 
 wife or a child, the Court will supply the defect.^ 
 
 (3) TraTisactions in Fraud of Parental Eights. — Parental rights 
 are said to be defrauded when heirs or expectant heirs have made 
 such extravagant bargains induced by fraud or pressure of desperate 
 circumstances, that their parents or those in loco parentis to them 
 are misled and seduced to leave their estates not to their heirs or 
 families, but to a set of artful persons who have divided the spoil 
 beforehand.^ Equity has always relieved against catching and un- 
 conscionable bargains whereby those who from their inexperience 
 or indiscretion are unable fully to protect themselves, and are tlie 
 victims of the fraud or duress of others who have availed them- 
 selves of the opportunity to enrich themselves at the expense of 
 the improvident. The true view of these transactions is to regard 
 them less as frauds on the parental rights than matters against 
 which equity ought to relieve on the ground of the personal equity 
 of the heir or expectant heir. 
 
 This view has not prevailed uninterruptedly, for it has been 
 laid down " that the extraordinary protection given in the general 
 case must be withdrawn, if it shall appear that the transaction 
 was known to the father or other person standing in loco parentis 
 — the person, for example, from whom the spes successionis was 
 entertained, or after whom the reversionary interest was to become 
 vested in possession — even although such parent or other person 
 took no active part in the negotiation, provided the transaction 
 was not opposed by him, and so carried through in spite of him. 
 Secondly, that if the heir flies off from the transaction, and 
 becomes opposed to him with whom he has been dealing, and 
 repudiates the whole bargain, he must not, in any respect, act 
 upon it BO as to alter the situation of the other party or his 
 property, at least, if he does so, the proof lies upon him of 
 showing that he did so under the continuing pressure of the 
 same distress which gave rise to the original dealing. Still more 
 
 1 Per Lord Alvanley in Chapman v. Oihson, 3 Bro. G. C. 228. 
 
 2 Toilet V. Toilet, 2 P. Wms. 489. For a full discussion of this subject see Farwell^ 
 Pow. pp. 335 et seq. 
 
 3 See Earl of Cliesterfidd v. Janssen, 2 Ves. Sen. 125, 157. See Woodhouse v. 
 8hepley, 2 Atk. 535 ; Twistletonv. Griffith, 1 P. Wms. 310; Cole v. Gihhons, 3 P. 
 Wms. 393. 
 
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CHAP. III.] RIGHTS AND OBLIGATIONS (PROPRIETARY). 549 
 
 fatal to his claim of relief will it be if the father or person in loco 
 parentis shall be found to have concurred in this adoption of the 
 repudiated contract.'" The accuracy of these remarks has been 
 disputed by Lord St. Leonards/ who said : " Now the first of 
 these rules is supported by no previous authority, and as a general 
 rule cannot, it is submitted, be maintained. The knowledge of 
 the parent may, under some circumstances, remove one of the 
 objections to such a transaction, but the others might still remain. 
 The son is entitled to be relieved, though the father may witness 
 his ruin with indifference. It is the son's equity, though partly 
 groanded upon public policy. In many cases the person standing 
 in loco parentis, or from whom the spes siiccessionis is entertained, 
 or after whom the reversionary property is to become vested in 
 possession, may be more than indifferent about the worldly prospects 
 of the expectant heir." 
 
 This first rule has also been commented upon by Page Wood, Taaot v. 
 V.-O., in Talbot v. Staniforth,^ who in the course of his judgment ' 
 remarked: "Lord Brougham's doctrine .... at the most, I think, 
 cannot go beyond this, that if a father, being unable himself to 
 supply his son's necessities, assists and protects him in raising 
 money from strangers — the son in such case having the best 
 security for obtaining the fair market value of what he sells — 
 the Court may, perhaps, assume that a bargain made under such 
 circumstances was fair and for full value. The only meaning I 
 can attribute to Lord Brougham's words, consistently with the 
 established doctrine, is that a person who deals with the assistance 
 of the best advice and protection may be supposed to get a fair 
 market price. To the doctrine so laid down I see nothing to 
 object, assuming that the protection is full and ample, for the 
 purpose of preventing any advantage being taken of the heir." 
 The true and proper nature of these transactions has been recog- 
 nized and described by Lord Selborne in the important case of 
 the Uarl of Aylesford v. Morris,* in which he said: "In the Eari or Ayies- 
 cases of catching bargains with expectant heirs, one peculiar 
 feature has been almost universally present ; indeed, its presence 
 was considered by Lord Brougham to be an indispensable con- 
 dition of equitable relief, though Lord St. Leonards, with good 
 reason, dissents from that opinion. Its victim comes to the 
 snare (for this system of dealing does set snares, not perhaps for 
 one prodigal more than another, bat for prodigals generally as a 
 class) excluded, and known to be excluded, by the very motives 
 
 ^ Per Brougham, L. C, in King v. Samlet, 2 M. & K. 456, 473. 
 
 ^ Law of Property, 69. At the time of writing this work he was Sir E. Sugden. 
 
 3 I J. & H. 484, S02. 4 L. E. 8 Ch. App. 484, 491. 
 
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550 PARENT AND CHILD. [part ii. 
 
 and circumstances which attract him, from the help and advice 
 of his natural guardians and protectors, and from that professional, 
 aid which would be accessible to him if he did not feel compelled 
 to secrecy. He comes in the dark, and in fetters, without either 
 the will or the power to take care of himself, and with nobody- 
 else to take care of him. Great judges have said that there is a 
 principle of public policy in restraining this ; that this system of 
 undermining and blasting, as it were, in the bud the fortunes of 
 families, is a public as well as a private mischief ; that it is a 
 sort of indirect fraud upon the heads of families from whom 
 these transactions are concealed, and who may be thereby induced 
 to dispose of their means for the profit and advantage of strangers 
 and usurers, when they suppose themselves to be fulfilling the 
 moral obligation of providing for their own descendants. What- 
 ever weight there may be in any such collateral considerations, 
 they could hardly prevail if they did not connect themselves with 
 an equity more strictly and directly personal to the plaintiff in 
 such particular case. But the real truth is that the ordinary 
 effect of all the circumstances by which these considerations are 
 introduced is to deliver over the prodigal helpless into the hands 
 of those interested in taking advantage of his weakness ; and we 
 so arrive in every case at the substance of the conditions which 
 throw the burden of justifying the righteousness of the bargain 
 upon the party who claims the benefit of it." These observations 
 put the matter on the true basis. 
 
 Where there is a sale of his reversionary interest by a young 
 man soon after reaching majority great care must be exercised in 
 the bargain ; and though mere undervalue in the bargain is not 
 conclusive proof of fraud or unconscientiousness in the bargain, 
 it may entitle the expectant to relief in a court of equity ; and 
 the onus of proving the transaction fair and the price sufficient is 
 on the purchaser.' 
 
 1 See O'Borle v. SoUnghrolce, 2 App. Cag. 814. 
 
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CHAPTER IV. 
 
 DUTIES AND RIGHTS 0¥ CHILDEEN IN RESPECT 
 OF THEIR PARENTS. 
 
 PAGE 
 
 Duty op Children to Suppoet and Maintain Paeents . 551 
 
 diffbeence between liability of parent and child in 
 
 Respect of Mutual Support 552 
 
 Emancipation 552 
 
 Right of Inheeitance 553 
 
 Real Property 553 
 
 Personal Peopeety 554 
 
 Wills Act, 1837 554 
 
 Suit by Infant Child against Parent foe Personal Tort 554 
 
 In this chapter will be briefly pointed out the corresponding Duties auJ 
 duties and rights of children in respect of their parents, both as cifudreD. 
 regards their persons and property. The duties of the parent 
 towards the child of necessity involve the corresponding rights 
 of the child, which it is entitled to have fulfilled. In the 
 present chapter only the rights and quasi-rights of the child, 
 which do not correspond with any duties of the parent already 
 discussed, will be treated of ; thus, the right of a child to be 
 supported and educated by its parents, having been already dis- 
 cussed will not be further mentioned. 
 
 The duty of children to support and maintain their parents is Duty of ohii. 
 one that is pointed out by nature, and is based upon the senti- f^dmaSam"^' 
 ment that is implanted in right-thinking minds, that the care Parents. 
 and trouble expended by parents in rearing and educating their 
 children, should by the latter be recompensed when they them- 
 selves are strong and able to work, while their parents are old 
 and feeble, and little capable of earning their daily bread. But, A moral 
 as in the case of the duty of the parent to support the child, °^ sation. 
 this duty to support and maintain father or mother is only an 
 imperfect obligation. If a child be rolling in wealth, and its 
 parents be in needy circumstances, he cannot be compelled to 
 contribute the smallest coin to alleviate their wants and distress. 
 
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552 
 
 PARENT AND CHILD. 
 
 [part II. 
 
 Except when 
 pai-ent be- 
 comes 
 chargeable. 
 
 Difference be- 
 tween liability 
 of parent and 
 of child in 
 respect of 
 mntaal 
 support. 
 
 Eights of 
 children. 
 
 Emancipation. 
 
 If, however, the parent become a pauper and chargeable to the 
 rates of the parish, then^ under the provisions of the Poor Law,' 
 the child must, if he has the means, contribute to his support. 
 But until an order is made by the justices under the statute of 
 Elizabeth, there is only a moral and not a legal obligation on a 
 son to support his poor and aged parent. It is the making of 
 the order that transmutes the moral obligation into the positive 
 duty.^' A child if of sufficient ability is liable for the support of 
 its mother, though she has married again ; and the liability to 
 contribute towards such support is not affected by the provisions 
 of 4 & 5 Wm. IV. c. ye, s. 56.' 
 
 The effect of this state of the law would seem to be that a 
 child, though of sufficient ability, on whom an order of justices 
 for the support of his parent had not been made, might allow 
 that parent to starve to death, and yet be free from liability to 
 any punishment. There is then a marked difference between the 
 liability of a parent for the support and maintenance of a child, 
 and that of a child for the support and maintenance of its 
 parent ; for if a parent who is in charge of a child and is of 
 sufficient ability to do so, neglects to provide it with proper 
 food and sustenance, he may be summarily convicted ; * and 
 if the child be injured in its health by the neglect, may be 
 indicted ; ^ and this apart from any order made upon the parent 
 for the support of the child ; whereas until the order is made 
 upon the child to contribute to its parent's support, he is under 
 a mere moral obligation which cannot be enforced, and which, if 
 not complied with, renders him amenable to no sanction of the 
 law. 
 
 Emancipation is not a right which can be enforced by the 
 child, but is rather a privilege which is allowed by the parent. 
 A child under age may be freed from the parental control by 
 becoming what is termed emancipated. A child who, though a 
 minor, leaves his father's family and household,' and by reason of 
 his trade, occupation, or condition is not under the power or 
 control of the father, becomes foris-familiated and emancipated, 
 that is, sui juris and independent ; thus, a son, nineteen years of 
 age, who left his father's family and went to another place, where 
 he remained^ was held to be emancipated.^ Emancipation is 
 
 ' 43 Eliz. c. 2, 8. 7. "The children of every poor, old, blind, and impotent person 
 . . . . being of sufficient ability, shall at their own charges relieve and maintain every 
 Buoh poor person," &o. 
 
 ^ Heg. V. Ireland, L. E. 3 Q. B. 130 ; and see Bancroft v. Mitchell, L. E. 2 Q. B. 
 549. ^ Arrowsmith v. Dickenson, 20 Q. B. D. 252. 
 
 * 31 & 32 Vict. c. 122, s. 37. 
 
 ^ Bex V. Friend et uxor, cited I Kuss. Cr. 949. 
 
 " St. Michael's, Norwich, v. St. 3Iatthew's, Ipiwich, 2 Stra. 831. 
 
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CHAP. IV.] DUTIES AND RIGHTS OF CHILD. 553 
 
 based upon a condition of things which is inconsistent with the 
 idea of the child being a part of the father's family and under 
 his control ; ' and it would seem that even in the case of a minor 
 marriage would operate as an emancipation.^ Enlistment in the 
 army is a relation inconsistent with the parental control, and 
 operates as an emancipation of the child.' But mere enlistment 
 is insufficient to bring about emancipation if the son is discharged 
 from the army, and comes back and lives with his father before 
 he attains his majority.'' But service in the police force does not 
 emancipate him, though living away from his father.' Ordinary 
 apprenticeship or domestic hiring of a minor child does not 
 effect his emancipation." But where an adult child leaves the 
 paternal household and enters the army, or ordinary service, as 
 domestic servant or labourer, he is deemed to be emancipated. 
 Emancipation in the Eoman system was of far greater importance 
 than in the English ; in the former a large alteration was effected 
 in the privileges and liabilities of the child j whereas in the 
 latter it is chiefly used in testing whether the child has or has 
 not acquired a separate settlement for poor law purposes. 
 Emancipation from parental control would not relieve a child 
 from the necessity of contributing to the support of its parents, 
 if occasion should demand it. The only effect of emancipation 
 as between parent and child would seem to be that it gives a 
 right to a minor child to his own wages or earnings. 
 
 A parent, as has been seen, can be compelled to support and Eight ot 
 maintain his child, if of ability to do so, but there is no duty upon ™ ^ntance. 
 him compelling him to leave by will any sum, however small, to 
 his child.* In this respect the English law differs from the Roman, 
 which provided that . descendants who had been disinherited by 
 their ascendants might bring an action de inofficioso testamento 
 (undutiful will), for the purpose of setting it aside.' The Scotch 
 legitim (or hairn's part of gear) is one-third of the father's 
 personal property, where he leaves a widow, and one-half where 
 he does not, which is divisible as of right among his children. 
 If a parent die without making a will, and leave real property, Real property. 
 
 ' See Sex v. Wliitton-cum-Twamhroohea, 3 T. R. 355; Meg. v. Scammonden, 15 
 L. J. M. C. 30. " See Bex v. Everton, 1 East, 526. 
 
 ' Eex V. Walpole St. Peter's, i W. Bl. 699 ; Bex v. Stanioix, 5 T. R. 670. 
 
 * Bex V. Botherfield Greys; i B. & C. 345 ; and Bee Bex v. Wohurn, 8 T. li. 479. 
 
 5 Beg. V. Selborne, 29 L. J. M. C. 56. 
 
 ^ Bex V. Halifax, Burr. 806 ; Bex v. Tottington Lower End, Cald. 284 ; Bex v. 
 Stretton, Cald. 487. ^ Bex v. BoacU, 6 T. E. 247. 
 
 ^ The popular theory that a parent must leave something to his child is not based 
 upon any legal fact ; and a child need not be " cut off with a shilling " in order to render 
 the will eft'ectual. 
 
 ^ By Justinian's legislation, which followed the analogy of the lex Falcidia, it was 
 a quarter of the amount the complainant would have obtained if the deceased had died 
 without making a will (Dig. 5, 2, 8, 6 ; Hunter, Rom. Law, 602). 
 
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55J^ PAEENT AND CHILD. [pakt ii. 
 
 the law gives it to the eldest son, and in default of a son or 
 
 sons, to the daughter, or if more than one, to them equally as 
 
 Pei-sonai pro- tenants in common. If the father die intestate as to his personal' 
 perty. Statute j. j.i , i t • , , ,, , 
 
 of Distribu- property, tne law divides the property equally among the 
 
 tions. children ; if he does not leave a widow, they take the whole, if 
 
 he does, they divide two-thirds of it among themselves. When 
 grandchildren take under the statute, they take par stirpes and 
 not per capita} In section 7 of this statute the term "next of kin- 
 dred " does not include the issue of the intestate.' 
 
 The inheritance and succession of her children to their 
 mother's real and personal property on intestacy, are the same 
 as in the case of the father, with the one qualification, that if 
 the father survives he takes absolutely her personal property to 
 the exclusion of the children, and this notwithstanding the 
 alteration effected by the Married Women's Property Act, 
 1882. 
 Wills Act, But children and other issue do obtain an advantage in 
 
 ^ ^^' respect of the wills of their parents, for where a person devises or 
 
 bequeaths property to a stranger, who dies in his lifetime, such 
 devise or bequest lapses; but under the Wills Act, 1837,* where 
 a child or other issue to whom any real or personal estate shall 
 be devised or bequeathed for an interest not determinable at his 
 death shall die in the lifetime of the testator, leaving issue who 
 shall be living at the testator's death, such gift shall not lapse. 
 This provision, however, does not apply to an appointment under 
 a special power,* or to a testamentary gift to children as a 
 class.* 
 
 The effect of gifts and transactions between parent and 
 
 child, and how the law endeavours to protect the weaker 
 
 against the undue inflaence of the stronger, have been before 
 
 considered.' 
 
 Suit by infant The right of a child to bring an action against its parent in 
 
 parent.^"™^ rcspect of the latter's dealings with its property is unquestioned. 
 
 For a personal But at this point the question may be asked whether an infant 
 
 child can sue its parent for a tort, such as personal violence done 
 
 against it, and whether an adult child can sue its parent for a 
 
 tort committed during infancy?^ There is no rule of the 
 
 ^ 22 & 23 Car. II. c. 10, Statute of Distributions. 
 
 ^ Be Natt, Walker v. Oammage, 37 Ch. D. 517. 
 
 ^ Ibid. * 1 Vict. c. 26, s. 33. 
 
 ^ Oriffiths\, Gale, 12 Sim. 327 ; Mohjlandy. Lewin, 26 Ch. D. 266, in which case 
 Freme v. Clement, i8 Ch. D. 499 was disapproved of. 
 
 '' Be Harvey's Estate, Harvey v. Gillow, [1893] i Ch. 567. 
 
 ' Ante, chiip. iii. pp. 535 et stq. 
 
 ^ If the action was brouglit during infancy the infant would necessarily appear by a 
 next friend. 
 
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CHAP. lY.j DUTIES AND RIGHTS OP CHILD. 555 
 
 common law to prevent such actions being brought, because the 
 relation of parent and child is not of so intimate and close a 
 nature as that existing between husband and wife. But there is 
 no case in the books which actually shows that this action has 
 ever been maintained on grounds such as the personal violence 
 of the parent towards the child. The reason of this may well 
 be that the dictates of family life, and the repugnance that 
 society would evince towards a display of such feelings, have 
 discouraged such actions ; besides, the courts of equity, if not Eemovai of 
 always those of law, have interfered to remove the child from the custody of 
 custody of the parent when unfit to retain it. If recourse is not P^^ieiit- 
 had to equity, it would be better, and in the interests of society, 
 that the cruel and unnatural parent should be punished by the 
 more speedy redress of a criminal Court for an act of criminal 
 violence, if proved so to be, than by a pecuniary fine inflicted 
 after the more tedious process of a civil suit. And here a reason 
 (which is almost a redudio ad ahsurdu^n) may be urged why a 
 civil action ought not to be brought, namely, that if the child 
 recovered damages against its father, and died under age, the 
 father as next of kin to his child would get back the unexpended 
 portion of the original amount, minus the small percentage of 
 succession duty between parent and child. 
 
 But where the tort is not mere personal violence, but some 
 other wrong, such as libel or slander, there does not seem to be 
 any reason why an infant child should not sue its parent and 
 recover compensation. Where the child is of age and emanci- 
 pated, and a tort of any kind or description is committed against 
 him by the parent, an action would lie on his part to redress the 
 injury, and such actions, though not frequently, are brought and 
 maintained. The remarks of an American writer' on this point 
 may be interesting : " The question, moreover, is sometimes Eeasone for 
 raised in these days, whether a young son or daughter occupying g„gij "ct^nf 
 the filial relation may not, on becoming of age, sue the parent or 
 quasi-parent for alleged mal-treatment or other injury. With 
 reference to a blood parent, however, all such litigation seems 
 abhorrent to the idea of family discipline which all nations, rude 
 or civilized, have so steadily inculcated, and the privacy and 
 mutual confidence which should obtain in the household. An 
 unkind and cruel parent may and should be punished at the time 
 of the offence, if an offender at all, forfeiting custody and sufier- 
 ing criminal penalties if need be ; but for the minor child who 
 continues, it may be for long years, at home and unemancipated, 
 
 ^ Soh. Dom. Eel. s. 275. 
 
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556 PARENT AND CHILD. [paet ii. 
 
 to bring a suit when arrived at majority, free from parental con- 
 trol and under counter influences, against Lis own parent, either 
 for services accruing during infancy, or to recover damages for 
 some stale injury, real or imagined, referable to that period, 
 appears quite contrary to good policy. The Courts should dis- 
 courage such litigation, and so upon corresponding grounds the 
 parent's suit, as to cause of action referable to the period and 
 relation of tender childhood." 
 
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CHAPTER V. 
 
 EIGHTS AND LIABILITIES OF PARENTS IN RESPECT 
 OP TORTS DONE TO OR BY THE CHILD. 
 
 PAGE 
 
 Eight of Paebnt to Maintain action for Toet Done 
 
 TO Child 557 
 
 Enticement and Haeboueing of Childeen . . . 558 
 
 Action foe Seduction of Daughtee .... 559 
 
 Relation of Mastee and Seevant Necessary . . 560 
 
 Damages for Injured Feelings 560 
 
 Consteuctive Services Sufficient .... 560 
 
 When Action Successful 561 
 
 When Unsuccessful _ . 562 
 
 Rights of Parents And Children undee Lord Campbell's 
 
 Act 562 
 
 Liability of Parent foe Child's Toets Committed with 
 
 HIS Consent and Knowledge 564 
 
 The subject-matter of this chapter will be divided under two 
 heads, namely, how far a parent may maintain an action for torts 
 done to his children ; and how far he may be rendered liable for 
 torts committed by his children. 
 
 (i) The right of the parent to maintain an action for a tort Bight of parent 
 done to his child is based upon the relation or quasi-relation of action for'tort 
 master and servant. A child who is under 'age or adult may "^""^ *° °^'''^' 
 maintain an action for damages in respect of a tort or injury 
 committed upon him ;' but under certain circumstances the 
 parent may also claim indemnity for the injury, whether it be 
 an assault and battery, injury by negligence, or seduction of child 
 from home, or the like. A parent has a right of action for an Loss of 
 injury done to his child by the wrongful act of another, if the parJnfgisfof 
 child is old enough to be capable of rendering him some act of ^c''™- 
 service, and can be treated in law as his servant ; ^ in other 
 words, a parent as such has no remedy for an injury done to his 
 child, and cannot recover for it, unless the latter can be treated 
 
 ^ Jay V. Whitfield, cited 3 B. & A. 308. 
 
 2 Add. Torts, S31 ; JTall v. Hollander, 4 P. & C. 660 : arinndl v. Wells, 7 M. & G. 
 1033- 
 
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558 PARENT AND CHILD. [paet ii. 
 
 in law as his servant. Thus, where an infant two and a half 
 years old was injured by the defendant's carriage, his father was 
 nonsuited in an action for damages in respect of the injury, on the 
 ground that the loss of service being the gist of the action, and 
 the child being incapable of rendering any service because of his 
 tender age, the action could not be maintained.' The parent must 
 allege in his action that it is the tortious act of the defendant 
 " -per quod servitium amisit" &c., but in a case of an assault or 
 injury of this nature no evidence of service is necessary beyond 
 that which the law will imply as between parent and child. ^ 
 The incidental expenses incurred in consequence of the injury 
 can be recovered ; but where the loss of service by the parent 
 cannot be sustained, it is very doubtful whether the parent could 
 recover for such expenses, though under an obligation to incur 
 them.^ 
 Enticement The parent may also sustain an action against a person for 
 
 fngof diUdren, wrongfully depriving him of his child's services, either by enticing 
 him away, or by improperly harbouring it after it has left its 
 home. Enticement is where the child is removed from the 
 parental control • without force ; abduction, on the contrary, 
 necessitates the employment of some force. Here again the 
 right of action depends upon the relation of master and servant. 
 If the parent has relinquished his right to the child's services, he 
 cannot maintain such action, but as long as the child remains 
 under his roof, his right to do so exists. Thus, an action will lie 
 for enticing away the plaintiff's daughter, though there be no 
 allegation that the defendant debauched her, or that there was 
 any binding contract of service between her and the plaintiff."' 
 And where the plaintifE's daughter, nineteen years old, resided 
 with him as a member of his family, and assisted him in his 
 business, by means of a fictitious letter of invitation dictated by 
 the defendant, procured her mother's consent to her quitting her 
 home for a few days, and left, and the defendant took her to a 
 lodging-house, where he cohabited with her for nine days, after 
 which she returned home, it was held that there was a sufficient 
 continuing relation of master and servant de facto, and sufficient 
 evidence of a wrongful enticing away of the daughter by the 
 defendant, to entitle the plaintiff to maintain the action.* So, 
 too, where a person hires a girl as a servant, and withdraws her 
 from her father's service for the very purpose of getting possession 
 of her person and seducing her, this fraudulently concocted 
 
 1 Hall V. Hollander, 4 B. & C. 600. ^ Evans t. Walton, L. R. 2 C. P. 615. 
 
 ^ See Grinnell v. Wells, 7 M. & G. 1033 ; Hall v. Eollander (ubi sup.). In America 
 there is a tendency to be more liberal towards the parent. Sch. Dom. Eel. s. 258. 
 * Evans v. Walton (ubi sup.). ^ Ibid. 
 
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CHAP. V.J EIGHTS AND LIABILITIES OF PARENTS. 559 
 
 service does not put an end to the relation of master and servant 
 previously subsisting between tte daughter and her father, who 
 may maintain an action for the seduction.' As this action is 
 founded on the loss of services, the right of the parent to bring it 
 does not seem limited to the infancy of the child.^ Where the girl 
 enticed away or abducted for immoral purposes is under eighteen, 
 the guilty party may be criminally punished.' 
 
 "To afford shelter is one thing; to encourage filial disobedience Harbouring 
 another. The mere employment of a runaway child does not ^ °^^^^' 
 amount to enticement. But where it appears that the defendant, 
 knowing that the son had absconded from his father, boarded him 
 in his family and allowed him to work on his farm as he pleased^ 
 doing this with the intention of aiding or encouraging, or with 
 the knowledge that it aids and encourages the son to keep away 
 from the father, he is liable to this action."^ If the defendant had 
 derived any benefit from the labour and services of the child, the 
 parent would be entitled to recover the amount.' The right to 
 bring such actions belongs to the mother on the death of the 
 father. It would also belong to her if on divorce or judicial 
 separation she had the care and custody of her child ; but there 
 does not appear to be any authority one way or the other for her 
 being able to maiutain the action when she voluntarily lives apart 
 from her husband, and is not judicially separated from him. 
 
 The next point to be considered is the right of the parent to Action for 
 maintain an action for damages for the loss of services consequent ^^ughtCT °^ 
 upon the illness of a daughter who has been seduced and thereby 
 become pregnant. This right of action is so clearly based (though 
 fictitiously) upon the relations of master and servant, that to 
 discuss it under the head of master and servant would not only 
 have been possible, but perhaps more logical than in this present 
 chapter. In a treatise on the law of master and servant it must 
 of course find a place ; but inasmuch as a large majority of the 
 actions are brought by parents in respect of the seduction of their 
 daughters, and not by masters in the popular sense of the word 
 for the seduction of their servants, it has been thought possible, 
 without an excessive violation of the logical treatment of the 
 subject, to discuss this action when dealing with the law of parent 
 and child. 
 
 1 Speight V. Oliviera, 1 Stark. 495. ^ ggg Ewrper v. Luffldn, 7 B. & C. 387. 
 
 ' 48 & 49 Vict. c. 69, s. 7. See Beg. t. Prince, L. R. 2 C. C. R. 154. 
 
 * Sch. Dom. Rei. 8. 260. 
 
 s Foster v._ Stewart, 3 M. & S. 201. In America it is the law that the father may 
 sue on the basis of a cintract for his absconding son's wages, but is put to his election ; 
 and the suit in tort against the employer, for unlawfully enticing, or harbouring his 
 minor child, precludes the action of assumpsit for wages earned. Thompson v. Howard, 
 31 Mich. 309 (Amer.). 
 
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560 PARENT AND CHILD. [part ii. 
 
 Eeiation of The basis of this action is the relationship of master and servant 
 
 master and ser- •j.i. i.1. i p ii • o , -, , , 
 
 vant necessary, wim tne loss 01 the semces 01 the daughter consequent upon the 
 wrongful act of the defendant ; and, as will be seen, the services 
 rendered by the daughter may not only be very slight, but even 
 constructive, that is, implied by law rather than evidenced by 
 facts.^ The daughter herself has no remedy against her seducer, 
 nor her parent, if the seduction does not result in pregnancy and 
 sickness,^ because, as it has been said, her own incontinence 
 shall not be the means of obtaining a pecuniary compensation 
 for any loss she may have sustained through it.' But it was 
 found necessary to punish seducers, and this action, whether 
 founded on trespass or on the case, was devised for their 
 punishment. 
 Damages for There is an important difference between the action brought by 
 feeUngsmay *^® parent Or master for an assault and battery, &c., on his child 
 aotfon for" *" °^ Servant and this action, for in the former no compensation is 
 seduction. to be given for wounded feelings, whereas in this action what are 
 known as "sentimental damages" may be given. This is an 
 instance of the bad logic of the action as now founded. Tindal, 
 C. J., in Grinnell v. Wells, thus states the law : " As the father 
 is only liable under the statute (43 Eliz. c. 2, s. 6) to maintain 
 his daughter where he is of sufficient ability so to do, and as the 
 damages recoverable by the father when he brings the action are, 
 confessedly, not limited to the actual expenditure of his money, 
 but may be given according to the circumstances of aggravation 
 in the particular case, the right of action to recover compensation 
 would be confined to persons of ability to maintain the daughter, 
 and would be denied to the poorer orders of the community — a 
 result that would be most unreasonable."'' 
 Services need Provided the relation of master and servant can be proved to 
 able construe- have existed between the person seeking compensation and the 
 tive sufficient, person debauched, the services rendered by the latter to the former 
 need not be real valuable services, but constructive services would 
 be sufficient ; and it is only necessary that the parent or master 
 ^, should have the legal right to an interest in them.* Thus, 
 
 maintain others besides the father may maintain this action ; a stranger in 
 
 blood where the relation of master and servant exists between 
 
 ' Fores v. Wilson, i Peake, 77 ; Grinnell v. Wells, 7 M. & G. 1033 ; Eager v. 
 - Grimioood, i Exch. 61 ; Manley v. Field, 7 C. B. N. S. 96 ; Terry v. Hutchinson, 
 L. E. 3 Q. B. 599. ^ Fager v. Qrimwood (uhi sup.). 
 
 2 Haterthwaite v. Buerst, 5 East, 47 n. 
 
 * 7 M. & G. 1033, 1043. But, as the learned reporternotes : "It may be observed, 
 however, that the quasi &cdonoi servitium amisit affords protection to the rich man 
 whose daughter occasionally makes his tea, but leave without redress the poor man, whose 
 child .... is sent unprotected to earn her bread amongst strangers." 
 
 ^ See Evans v. Walton, L. R. 2 C. P. 615. In America the rule as to constructive 
 service is earned even further than over here. Soh. Dom.. Eel. s. 261. 
 
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 action. 
 
CHAP. v.\ EIGHTS AND LIABILITIES OF PARENTS. 561 
 
 plaintiff and the person seduced,' a brother/ an aunt,^ and an 
 adoptive father.'' Whether a married woman living with her 
 child apart from her husband, but not judicially separated, could 
 maintain the action is doubtful. But the right to bring an 
 action of this sort does not pass to the trustee of a master who 
 has become bankrupt, as the trustee would have no right to make 
 a profit of a man's wounded feelings.* It is not necessary that 
 the daughter should be under age ; and the real question is 
 whether or not she has been emancipated from her father's 
 control; consequently, where a married daughter was living with 
 her father, and performing various acts of service for him, the 
 father was held entitled to bring the action on the establishment 
 of the relationship of master and servant between him and his 
 daughter, and that the defendant as a wrong-doer could not set 
 up the right of her husband to the services of the plaintiff's 
 daughter;' on the contrary, if the plaintiff's unmarried infant 
 daughter be in the service of another at the time of her seduction, 
 the action will not lie.'' The following cases will show the circum- 
 stances under which this action may be sustained, and when it will 
 fail, and that the relationship of master and servant and consequent 
 loss of services on the part of the former are absolutely necessary 
 to its successful maintenance. 
 
 Where the person seduced resides at the plaintiff's home, no when action 
 proof of actual service need be given if the plaintiff has the right 
 to demand her services;* very slight evidence of such services is 
 requisite,' such as milking cows," making tea," and the like ; and 
 this equally for a niece '^ as for a daughter. The person seduced 
 need not be at the beck and call of the plaintiff, as where the 
 plaintiff's daughter lived with her brother, but went every day to 
 her father's house to do all the household work;" or where she 
 resided some distance off, but acted as mistress of a household 
 belonging to her father;'" or was temporarily engaged in service,'* 
 or only performed services for him after her day's work was over.'" 
 The action has also been maintained where she had left her situa- 
 tion, and was seduced on the way home to her father's house," for 
 a fresh entering into her father's service on her leaving her 
 
 ^ Fores v. Wilson (uhi svp.). " Howard t. Crowther, 8 M. & W. 6oi. 
 
 2 Edmondson v. Machell, 2 T. R. 4. ■* Irwin v. Dearman, 1 1 East, 23. 
 ^ Boward v. Crowther (ubi sup^. 
 
 ^ Harper v. Luffhin, 7 B. & C). 387 ; and see O'Eeilly v. Olavey, 32 L. K. Ir. 
 
 316. ' Davies t. Williams, 10 Q. B. 725. 
 
 8 Maunder t. Venn, M. & M. 323. » Manvell v. Thomson, 2 0. & P. 303. 
 
 i» Bennett v. Alcott, 2 T. R. 168. " Carr v. Clarice, 2 Chit. Eep. 260.; 
 
 12 Manvell v. Thomson (ubi sup.). ^^ Mann v. Barrett, 6 Ksp. 32. 
 
 " Holhwaij V. Abel, 7 C. & P. 528. ^ Griffiths v. Teetgen, 15 C. B. 344. 
 
 18 Bist V. Favx, 32 L. J. Q. B. 386 ; Ogden v. Lancashire, 15 W. R. 158. 
 i7 Terry v. Hutchinson (ubi sup.). 
 
 2 N 
 
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562 PARENT AND CHILD. [part ii. 
 
 situation was assumed.' Where the father's control over the 
 
 services of his daughter is put an end to by the wrongful act of 
 
 the defendant, the defendant will not be allowed to avail himself 
 
 of his own wrong, but the service will be deemed to be continued 
 
 through the tortious interruption.^ 
 
 Action un- This action cannot be maintained where there has been only 
 
 seduction, and no pregnancy and sickness causing loss of service,^ 
 
 for some proof of loss of service is necessary,^ or where the 
 
 plaintiff has connived at his daughter's unchastity," or where the 
 
 person seduced is in the service of another,^ and she is seduced by 
 
 her own master, where he has not hired her for purposes of 
 
 toreturnTo'"" ®^^'^'''^^°^/ whether intending to return to plaintiff's on the 
 
 father's house termination of the service' or not,^ even though the seduction 
 
 immaterial. t • ^ 
 
 during her temporary absence from work took place under her 
 parent's roof/" or where the relation of master and servant is 
 contracted after the seduction, for the loss of service cannot then 
 be made the foundation of the action." Where the daughter 
 seduced is the real head of the house, this action is not maintain- 
 able by her father.'^ 
 
 For the evidence to be adduced in aggravation of damages 
 
 because of the heartless conduct of the defendant, or in mitigation 
 
 because of the conduct of the person seduced, see Addison on Torts,'^ 
 
 and Smith's Master and Servant." 
 
 Eights of As a necessary branch of this subject, the right of the parents 
 
 children under to recover damages for injuries causing the death of children, and 
 
 MI'saT^ the corresponding rights of children to recover damages for 
 
 injuries causing the death of their parents, will next be discussed. 
 
 It was and is a rule of law, that if the injuries wrongfully 
 
 inflicted upon a servant cause his immediate death, the master 
 
 has no right of action ; thus, if a father was supported by his 
 
 son, who was killed on the spot by the negligent and wrongful 
 
 act of some third person, his father could not maintain an action 
 
 against the wrong-doer;'^ though if the son lingered, however 
 
 short a time, the father might bring his action under Lord 
 
 ^ See Oladney v. Murphy, 26 L. R. Ir. 651. 
 
 ^ Speiaht v. Oliviera, 2 Stark. 493 ; Long v. Keightley, II Ir. C. L. 221 ; see also 
 Evans y. Walton, L. R. 2 G. P. 615. ^ Saterthwaite v. Duerst, 5 East, 47 n. 
 
 * drinnell v. Wells, 7 M. & G. 1033. ° Reddie v. Scoolt, i Peake, 316. 
 
 ^ Dean v. Peel, 5 East, 45 ; Harris v. Butler, 2 M. & W. 539 ; Thompson v. Boss, 
 29 L. J. Ex. I. 7 Gladney v. Murphy {ubi sup.). 
 
 8 JBlaymire v. Haley, 6 M. & W. 55 ; Oladney v. Murphy (ubi sup.). 
 
 8 Dean v. Peel (ubi sup.). ^» Hedges v. Tagg, L. R. 7 Ex. 283. 
 
 11 Davies v. WiUiams, 10 Q. B. 728. 
 
 12 Manley v. Field, 7 C. B. N. S. 96. ^^ Pp, 536-539. " Pp. 179-181. 
 ^5 Higgins v. Butcher, yelv. 89 ; Baker v. Bolton, i Camp. 493 ; Oshorn v. Gillett, 
 
 h. R. 8 Ex. 88. In this case Bramwell, B., dissented from the majority of the Court 
 and held that the action would lie. His Lordship said that the rule of law as set out 
 above was derived from a mistaken apprehension of the maxim, " actio personalis 
 moritur cum persona," and that the "death of the action" referred to the incapacity of 
 the deceased to bring the action, which died with him, but did not refer to the right 
 
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CHAP, v.] RIGHTS AND LIABILITIES OF PARENTS. 563 
 
 Campbell's Act, 1846.' The preamble of that statute says that 
 " no action at law is now maintainable against a person who by 
 his wrongful act, neglect, or default may have caused the death 
 of another person ; " then the statute goes on to enact, that when 
 the death is caused by such wrongful act, and the person fatally 
 injured might have recovered damages in respect of such injury, 
 the right of action shall survive for the benefit of the " child," 
 and may be brought by the executor or administrator of the 
 deceased. If there is no executor or administrator, or such does 
 not bring the action within six months of the death, then, under 
 27 & 28 Vict. c. 95, the persons beneficially interested in the 
 action may bring it for themselves. The services that have been 
 lost through the death of the relative must have been rendered 
 on account of the relationship of the parties, and not in pursuance 
 of a contract.^ 
 
 The action must be brought within a year from the death, ^ 
 whether by the personal representatives, or the persons beneficially 
 interested. A child en ventre sa m^re," but not a bastard,^ is ^''^ii'^ «« centre 
 within the remedy of Lord Campbell's Act. Contributory negli- within the Act. 
 gence on the part of the deceased will be a bar to the representa- 
 tives of the deceased maintaining the action. ° There must be 
 some proof of damage or the action will fail,' but a reasonable 
 expectation of pecuniary advantage may be taken into considera- 
 tion by the jury.^ It has been held in the Irish Exchequer 
 Division that where the value of the services of the deceased was 
 greater than the cost of the support of the deceased, the death 
 would not entitle the relative who complained of the death to 
 compensation ; ' but it has been also held that where it can be 
 shown that the services of the deceased had a distinct pecuniary 
 value, and were of more value than the cost of the support of the 
 deceased, though no actual evidence is given of the exact amount 
 of the value of the services or of the keep of the deceased, 
 there is a case to go to the jury for pecuniary compensation.'" 
 
 ■which a master had to bring an action for loss of services occasioned by the injury or 
 death of his servant. In 1881 his Lordship was of the same opinion : see Solicitors' 
 Journal, Aug. 27, 1881, p. 813. Some of the American Courts support the view taken 
 by Lord BramweU. ^ 9 & 10 Vict. c. 93. 
 
 2 
 
 ^ 9 & 10 Vict. c. 93, s. 3 ; 27 & 28 Vict.'c. 95, s. i. 
 
 iil/kes V. North Eastern Bailway Co., 44 L. J. C. P. igi. 
 
 The George and Michard, L. E. 3 A. & E. 466. 
 ^ DicJiinson v. North-Eastern Bailway Co., 33 L. J. Ex. 91. 
 « Bynen v. Leach, 26 L. J. Ex. 221 ; Waite v. Nm-th-Eastern Mailway Co., 28 
 L. J. Q. B. 258. ' Duckworth v. Johnson, 29 L. J. Ex. 25. 
 
 8 Pym V. Great Northern Mailway Co., 31 L. J. Q. B. 249. 
 _ 8 EvU y. Great Northern Bailway Co. (Ireland), 26 L. R. Ir. 289. The Court in 
 this case disapproved of Duckworth v. Johnson [uhi sup.). 
 
 1" Wolfe V. Great Northern Bailway Co. (Ireland), 26 L. E. Ir. 548. In this case 
 the Court of Appeal approved of Duckworth v. Johnson (ubi sup.), and held that the 
 onus of proof required in the case oi Bull v. Great Northern Bailway Co. {ubi sup.) 
 was satisfled, and the onus of disproof was shifted to the defendant company. ' 
 
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564 
 
 PARENT AND CHILD. 
 
 [PAET II, 
 
 Action by 
 children. 
 
 Declaration 
 of title. 
 
 Liability of 
 parent for 
 child's torts 
 committed 
 with his 
 consent and 
 knowledge. 
 
 Damages for " wounded feelings/" or for funeral expenses,^ 
 cannot be given. 
 
 This action can be brought by the child for injuries resulting 
 in the death of the " parent " ; ' and the principles which have 
 been laid down above as regulating the bringing and maintaining 
 of actions in the case of parents are the same as those in the case 
 of children. Where executors receive money by way of compen- 
 sation for injuries causing the death of their testator without 
 bringing an action under this Act, but proceed in the Chancery 
 Division for a declaration as to the persons entitled, the Court 
 can distribute it among the relatives of the deceased who are 
 entitled to it as having suffered damage by the death of their 
 relative, as though it were a jury under this Act.^ 
 
 (2) lAaMlity of Parent for Torts done hy Child. — The liability 
 of a parent for the torts of his children is quite different to that 
 which the law imposed (and does to a partial extent now impose) 
 upon the husband for the torts of his wife, whether committed 
 before or during marriage ; for marriage by the common law 
 operated as a conveyance of the wife's property to the husband, 
 and the only redress the injured party had by way of pecuniary 
 compensation was to sue the husband as well as the wife. But 
 the father's pecuniary interest in his unemancipated children is 
 limited to the wages they earn in service. If the father autho- 
 rized the tort, or clearly ratified its commission, he would be 
 liable ; or if he employed his child in a particular employment, 
 and in the course and scope of that employment the child 
 committed a tort, no doubt the principle which renders a master 
 liable for the tortious acts of his servant committed within the 
 scope of his employment and limits of his authority would be 
 applied, and the father held liable for the tort.' But there is a 
 dictum to the effect that " the tendency of juries, where persons 
 under age have incurred debts or committed wrongs, to make 
 their relatives pay, should be checked by the Courts," on the 
 ground that " no man ought, as a general rule, to be responsible 
 for acts not his own."" On the whole, it may be stated as a rule 
 that a father is not liable in damages for the torts of his child 
 committed without his knowledge, consent, or sanction, and not 
 in the course of his employment of the child.' 
 
 1 Blake v. Midland Railway Co., 21 L. J. Q. B. 233. 
 
 2 Dalton V. South-Eastern Bailway Co., 27 L. J. 0. P. 227; see Osbom v. Gum, 
 
 T -p O T?— go 
 
 3' 9 & 10 Vict. c. 93, s. 2. ■* Bvilmer v. Bulmer, 25 Ch. D. 409. 
 
 5 Seepost, Master and Servant, chap, yiii, 
 
 6 Per Willes, J., in Moon v. Towers, 8 C. B. N. S. 611, 616. 
 ' Sch. Dom. Eel. b. 263 ; Moon v. Towers {uhi sup.]. 
 
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CHAPTER VI. 
 
 ILLEGITIMATE CHILDREN. 
 
 PAGE 
 
 Who is a Bastard ? 566 
 
 Pbesumption that Child of Maeeied Woman is Legiti- 
 mate 566 
 
 How Displaced 566 
 
 Bastaed within the Peohibited Dbgebes op Kinship . 568 
 Recognition of Kinship between Bastaed and His 
 
 Parents 568 
 
 Eights : when Bastard can Take Bequest or Legacy 
 
 UNDER Designation op "Child" .... 569 
 
 Bastard en ventre sa M6ee can Take as a "Child" 571 
 Bastaed Begotten after Testator's Death cannot 
 
 Take 571 
 
 Disabilities : Bastaed cannot Inheeit, oe Succeed ab 
 
 intestato to Personal Property . . . . 571 
 
 Not within Lord Campbell's Act 572 
 
 Cannot hate a Testamentary Guardian Appointed 
 
 to it 572 
 
 Defective Powbes not supplied in his Favoue . 572 
 Custody of Bastard Child : Primary Eight of Custody 
 
 in Mother 572 
 
 When Father's Right Recognized 573 
 
 -Provident Nominations and Small Intestacies Act, 1883 573 
 
 As between Parents and Strangers 575 
 
 Statutoey Liability op Putati^-b Father to Maintain 
 
 Bastard Child . 575 
 
 No Liability Independently op Statutory Oedee . . 576 
 Agreement by Deed or Simple Contract Based on 
 
 Future Cohabitation Void 577 
 
 Agreement by Deed Based on Past Cohabitation valid 577 
 Agreement by Simple Contract Based on Past Cohabi- 
 tation INVALID 577 
 
 Agreement where a Child is to be Supported Valid . 578 
 
 Liability op Mother 578 
 
 Bastard's Settlement that op Mother . . . . 579 
 How Father's Liability Enforced by Mother by Order 
 
 OP Justices 579 
 
 Eight op Appeal of Father against Oedee . . . 580 
 Jurisdiction op Justices does not Extend to Bastard 
 
 BORN Abroad 580 
 
 DoMiciL op Origin op Bastard 581 
 
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566 PARENT AND CHILD. [part ii. 
 
 Who is a An illegitimate child, or bastard,' is one who is born out of lawful 
 wedlock. A chUd is legitimate provided that its parents are 
 lawfully married at the date of its birth, and it is immaterial 
 whether they were married or not at the time of its conception. 
 But where the child is posthumous, or born after the death of its 
 father, the time at which it was conceived becomes of great im- 
 portance ; if born within the furthest period allowed for gestation 
 from the date of the death of its mother's late husband, it will be 
 presumed to be his child, and so legitimate ; but if born without 
 that period, it will be held to be a bastard." 
 Preaun^tion fj'];j0 English law may be somewhat stern in its treatment of 
 married bastards, but it does not lightly come to the conclusion that a 
 
 legitimate. child bom of a married woman is not legitimate ; on the contrary, 
 the presumption of law is that it is legitimate. This legal pre- 
 sumption is not to be rebutted by circumstances which create 
 How.dia- Only doubt and suspicion. It may, however, be displaced by 
 p ace . proof of such facts, as, for instance, that the husband was incom- 
 
 petent ; was entirely absent, so as to have no intercourse or 
 communication of any kind with the mother ; or was entirely 
 absent at the period during which the child must, in the course of 
 nature, have been begotten ; or was only present under circum- 
 stances as afford clear and satisfactory proof that there was no 
 sexual intercourse. Such evidence as this would put an end to 
 the question, and establish the illegitimacy of the child of a 
 married woman.^ The mother cannot give evidence of non-access 
 of her husband to bastardize her issue ; thus, on a question of 
 legitimacy, it appeared that the child had been born three months 
 after the marriage. It was suggested that the wife had not seen 
 the husband until immediately before the marriage ; and that at 
 the period of conception he was married to another person. In 
 the cross-examination of the mother, it was proposed to ask her, 
 " How long she had known her husband before her marriage ? " 
 This question was objected to, but the Court allowed her to be 
 asked, "When did you first know this gentleman ?" (meaning 
 her husband); and she having answered that it was twelve 
 months before her marriage, the Court would not permit the 
 
 1 There is some doubt as to the etymology of the term " bastard." The more recent 
 writers would derive it from last, signifying a pack-saddle, and the suffix ard, and its 
 meaning would be " son of a bast, or pack-saddle," that is, not of a bed, as a lawful son 
 or child ought to be. In former times the muleteers who went up and down the 
 country with their wares, were in the habit of sleeping in the outhouses of the inns on 
 their pack-saddles instead of beds. See Skeat's Etymological Dictionary of the English 
 language. The Greek equivalent is vbBiK, as opposed to 'yv-fiaios, and the Latin is apwnus 
 " unde solent spurii fllii appellari, vel a grreca voce, quasi avopihiv concepti, vel quasi sine 
 patre filii." Gaius, lib. i. s. 64. 
 
 2 See ante, p. 483. 
 
 8 Hargravey. Margrave, 9 Beav. 552. 
 
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CHAP. VI.] ILLEGITIMATE CHILDREN. 567 
 
 subject to be further pursued.' So a husband cannot indirectly 
 bastardize the child of his wife by an allegation of its illegi- 
 timacy where access to her was possible during the period of 
 testation ^ But if (as it may be) non-access of the husband is Proof aiiwuie 
 
 ° ' ^ ■, , , 1 ,1 • -J of nou-acoes3 
 
 proved from other sources/ then the mother may give evidence of husband. 
 
 to prove the paternity of her child ; * and under the Evidence 
 
 Amendment Act, 1869/ she may give evidence as to her 
 
 adultery ; but the husband cannot give evidence under this Act 
 
 after the dissolution of his marriage on the ground of his wife's 
 
 adultery to prove the bastardy of a child born in wedlock." The 
 
 mother/ or father/ is a competent witness to prove that she was 
 
 never married, and that, consequently, her or his reputed children 
 
 are illegitimate. 
 
 The admissions of a deceased person as to his illegitimacy are Admissions 
 
 receivable in evidence in proof of his bastardy ; " and family tra- ti^na of ^™' 
 
 dition may be proved to corroborate such admissions of the '^g^go^g'^^ij, 
 
 deceased as to his illegitimacy.'" Declarations by a reputed father missiWe. 
 
 contained in business letters written in his name and under his 
 
 dictation as to the date of birth of his reputed children may be 
 
 admitted as evidence after his death, of the date of their birth, 
 
 upon the question of their legitimacy, though such evidence 
 
 would tend to prove that they were bastards ; '' and in pedigree 
 
 cases, where the legitimacy of a child born in wedlock is in issue, 
 
 previous statements by the mother that the child is a bastard are 
 
 admissible as evidence of her conduct, though such statements 
 
 could not be made by her as a witness called to give evidence.''^ 
 
 Evidence, too, of verbal statements made by the paramour of the 
 
 wife with whom he was living, is admissible as evidence of 
 
 conduct tending to show he was the father of the child. '^ An Action to 
 
 action may be brought to perpetuate testimony for the purpose of t'e^Hmonj^ 
 
 proving the illegitimacy of a child, where the wife of a lunatic 
 
 husband has committed adultery, and given birth to a child which 
 
 is alleged to be a bastard." 
 
 ^ Anon V. Anon, 22 Beav. 481 ; 23 Beav. 273. In this case tte child was born 
 three months after the marriage. The Master of the Rolls said, "I think the principle 
 of the English law, which makes a child previously conceived legitimate by the 
 subsequent marriage extends the privilege to the question of access or non- 
 access." ^ See Hewat's Divorce Bill, 12 App. Cas. 312. 
 
 * See Eex v. Kea, 11 East, 132. 
 
 * Legge v. Edmonds, 25 L. J. Ch. 125. ' 32 & 33 Vict. c. 68. 
 
 * Burndby v. Baillie, 42 Ch. D. 282 ; and see Nottingham Union v. Tomhinson, 
 4 C. P. D. 343. ' Bex V. Bramley, 6 T. E. 330. 
 
 8 Bex V. 8t. Peters, Burr. S. C. 25. 
 
 8 Her Majesty's Procurator General v. Williams, 31 L. J. P. & M. 157 ; Be Perton 
 (deceased), Pearson y. Att.-Gen. 53 L. T. 707. 
 
 ^'' Be Perton (deceased), Pearson v. Att.-Oen. {uhi svp.). 
 
 ^' Be Turner, Glenister -v. Harding, 29 Ch. D. 985. 
 
 ^2 Aylesford Peerage Case, 11 App. Cas. i. ^^ Burnaby v. Baillie {ubi sup.). 
 
 ^* Be Stoer, 9 P. D. 120. See this case for the course to be pursued under 
 Ord. XXXVII. I. 35 of the R. S. C. 1883. 
 
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568 PAEENT AND CHILD. [paet ii. 
 
 The Roman or civil law doctrine is contained in the maxim, 
 
 pater est quem nuptim demonstrant ; and one of its effects is that 
 
 where the parents of a bastard marry, the subsequent marriage 
 
 confers the status of legitimacy upon the child. This priTilege 
 
 prevails in all countries the laws of which are based upon the civil 
 
 Difference Code, and in most of the United States of America. Bub bastards 
 
 terine bastards ^^® of two kinds ; they are either incestuous and adulterous on 
 
 issue^"™"^ the one hand, when conceived or born during the marriage of one 
 
 of the parents ; or spurious on the other, called also vvlgo qucesiti, 
 
 when born of promiscuous intercourse. The principal distinction 
 
 between the two is this, that the latter may be legitimated per 
 
 subsequens matrimonium, but the former (it is thought) never.' Now 
 
 this privilege of legitimation has never prevailed in the English legal 
 
 system, and the law may be thus stated, " once a bastard always 
 
 a bastard." An attempt was made by the bishops in the time 
 
 of Henry III. to introduce the canon law doctrine, but the peers 
 
 Where status Successfully resisted the proposed innovation.^ But except in the 
 
 reco^i?d.°^ matter of succession as heir to real property,' where a child is 
 
 born before the marriage of his parents, if his father is domiciled 
 
 in a country (at the time of the birth of the child and at the 
 
 time of the subsequent marriage with the mother) whose laws 
 
 recognize legitimation per subsequens matrimonium, the status of 
 
 legitimacy of such child will be recognized by the laws of this 
 
 Bastards with- Country.' Strictly speaking, a bastard is filius nuUius, that is, in 
 
 Wbited^degrees the eye of the law he has no parent on whom he has any enforce- 
 
 of kiuship. able claim, or from whom he can derive any rights. But bastards 
 
 equally with legitimate persons are within the prohibited degrees 
 
 of consanguinity and affinity ; and their marriages within those 
 
 degrees are incestuons and void.^ The civil law doctrine of 
 
 partus sequitur ventrem, which recognizes a legal tie between the 
 
 mother and her child, and enables a bastard to succeed to her 
 
 personal property, has no application in English law. 
 
 Eeoognition of But the tendency and growth of the law has been towards a more 
 
 tween bastards liberal recognition of the rights and duties of the parents towards 
 
 and their their bastard offspring, and to regard the latter more as children 
 
 of, than strangers to, the former. Thus, the mother has the right 
 
 1 Fras. Par. & Ch. 119. 
 
 ^ See ante, p. 483. The desire to bring about such a change as this does not seem 
 to have been deeply seated, for there is no record of a later attempt to bring about this 
 alteration of the laV. Fuller details of how bastardy may be proved or rebutted, and 
 of the consequences flowing from it, are given above "in chap. i. Legitimacy. 
 
 3 Birtwhistle v. Vardill, 7 CI. & F. 895. 
 
 * Me Goodman's Trusts, 17 Ch. D. 266; Me Grove, Yaucher v. Solicitor to the 
 Treasury, 40 Ch. D. 216 ; i?e Qrey's Trusts, Grey v. Stamford, [1892] 3 
 Ch. 88. 
 
 ^ Beg. v. Brighton {Inhabitants of), 30 L. J. M. C. 197, 
 
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CHAP. vi.J ILLEGITIMATE CHILDREN. 5G9 
 
 to the care and custody of her child while within the years of 
 nurture ; for as the maternity is capable of satisfactory proof, she 
 is marked out by nature as its proper custodian. 
 
 The rights of a bastard at common law are not numerous, and Bights and 
 
 o ij» T i. ■ 1, '4. disabilities or 
 
 such as they are he must acquire for himself, and cannot inherit, bastards. 
 He can now claim during his tender years the statutory as well as 
 moral right to be supported by his parents.' He may, it seems, 
 acquire a right to a surname by reputation.^ Though a bastard Bequests and 
 cannot inherit, yet under certain circumstances legacies and bastards. 
 bequests made in his favour, and in the capacity of child of his 
 parents, are held good and valid. It is true that the " descrip- 
 tion child, son, issue, every word of that species, must be taken 
 priTnd facie to mean legitimate child, son, or issue ; " ^ but bas- When bastards 
 
 ■. , , T ,1 J i< 1 -ij ') can take under 
 
 tards can take a legacy or bequest under the term cniiaren designation of 
 already born, if sufiiciently designated or described, or have ""'"^'^™"'" 
 acquired the reputation of being children or issue,'' and both legi- 
 timate and bastard children can take together under the like 
 denomination and description of " children," &c. ; * and from this 
 it follows that a bastard cannot take by the description of " child " 
 of his reputed father, until he has acquired the reputation of 
 being such child." An unmarried man made a bequest " to my 
 children," &c., and parol evidence was allowed to show whom the 
 testator considered in the character of children, and they having 
 obtained a name by reputation, were admitted to take as a clasSj 
 though illegitimate and not named in the will.' Where a testa- 
 trix bequeathed to A, " the eldest daughter of my deceased 
 daughter S, my gold watch," and she bequeathed other property 
 to trustees " in trust for such of the children of my said deceased 
 daughter S, who shall attain twenty- one, absolutely, equally, 
 share and share alike, the shares of such of them as shall be 
 daughters to be for their sole and separate use ; " S had two 
 legitimate children, a son and a daughter, and she had also an 
 illegitimate daughter, who was the person spoken of in the will 
 as " A, the eldest daughter of S ; " it was held that there was a 
 sufficient indication of an intention that A should be included in 
 the description of " the children of S." ^ It is the intention that 
 the illegitimate child shall take that makes the bequest good.^ 
 But any reference to an illegitimate child that involves an inquiry 
 
 1 See^osJ, p. 575. 2 Co. Litt. 3. 
 
 ^ Per Eldon, C, in Willdnson v. Adam, i V. & B. 42 : Dover v. Alexander, 12 
 L. J. Gh. 175. 
 
 * Bill V. Orodk, L. E. 6 H. L, 265, affirming L. E. 6 Ch. 311. 
 
 ^ Ibid. 6 yfiDdnson v. Adam (uhi sup.). 
 
 ^ Beacharoft v. Beacharoft, i Madd . 430. 
 
 8 Be Ilumphries, Smith v. MiUidge, 24 Cb. D. 691. 
 
 * See Harris v. Lloijr], T. & E. 310. 
 
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570 • PARENT AND CHILD. [part ii. 
 
 as to his paternity will disentitle the bastard child to take.' 
 " The principle which may fairly be extracted from the cases 
 upon this subject is this — the term ' children ' in a will primd 
 facie means legitimate children, and if there is nothing more in 
 the will, the circumstance that the person whose children are 
 referred to has illegitimate children will not entitle those illegi- 
 timate children to take.^ But there are two classes of cases in 
 which that primd facie interpretation is departed from. One 
 class of cases is where it is impossible from the circumstances of 
 the parties that any legitimate children could take under the ' 
 bequest. A familiar example of that might be given in this 
 way : Suppose there is a bequest ' to the children of my daughter 
 Jane,' Jane being dead, and having left illegitimate children, but 
 having left no legitimate children. There, inasmuch as the 
 testator must be taken to have known the state of his family, 
 and must be taken to have intended to benefit some children of 
 his daughter Jane, and inasmuch as she had no children who 
 could be benefited except illegitimate children, rather than that 
 the bequest should fail altogether, the Courts will hold that ille- 
 gitimate children are intended, and they will take under the term 
 ' children.' .... The other class of cases is of this kind : 
 where there is upon the face of the will itself, and upon a just 
 and proper construction and interpretation of the words used in 
 it, an expression of the intention of the testator to use the term 
 ' children ' not merely according to its primA facie meaning of 
 legitimate children, but according to a meaning which will apply 
 to, and which will include illegitimate children." ^ But where 
 there is no evidence on the face of the will that the testator 
 intended illegitimate children to take, legitimate children alone 
 will take ; * though from circumstances dehors the will it might 
 be inferred that the testator meant and intended that the term 
 " children " should include and designate illegitimate ones.' If 
 there are no legitimate children to take, though in the circum- 
 stances of the parties a legitimate child might have come into 
 existence, then a bequest to " children " will fail.' The rule of 
 law that where there is a gift to children an illegitimate child 
 cannot take does not apply to a gift over of property by a testator 
 who has designated an illegitimate child as a "child;" and such 
 
 1 Per Bowen, L.S./mBe Bolton, Brown v. Bolton, 31 Ch. L>. 542. 
 
 2 See Dmin v. Dorin, L. R. 7 H. L. 568. „ ^ ^ „ 0/17 7„„«o 
 
 3 Per Caii-ns, C, in Hill v. CrooTc, L. R. 6 H. L. 265, 282. See Cohs v. Jones, 
 
 ^ i ' Dorin y. Dorin [vhi sup.), Be SazeUine, Grange v. Siwdy, 31 Ch. D. 511 ; Se 
 Loice, Danily \. Piatt, 61 L.J. Ch. 415. 
 
 5 Dorin y. Dorin (uhi sup.). 
 
 ^ Be Brown, Penrose v. Manning, 63 L. T. 159. 
 
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CHAP. VI.] ILLEGITIMATE CHILDREN. ' 571 
 
 illegitimate child will take under the bequest;' so where a person 
 born before the testator's will was made was designated as a 
 " child " of the " wife " of a particular person, though she was 
 not the legal wife of that person to the knowledge of the tes- 
 tator, such " child" took under the will.^ 
 
 A bastard child en ventre sa viire at the date of the will of the Bastard en 
 
 .„ _, , , ... , n o ,, 1 , •/. 1 -u • ventre sa mere 
 
 testator will take if sufficiently indicated ; " " but it a child is can take as a 
 described with reference to its father there seems to be consi- " °^^^' ' 
 derable doubt whether the bequest is not void for uncertainty. 
 To establish the fact of paternity would involve an inquiry which 
 the law will not allow, and it is doubtful whether an illegitimate 
 child can acquire a title by repute till it is born." * 
 
 Future illegitimate children born between the date of the tes- 
 tator's will and his death, who are sufficiently designated and 
 have acquired at the time of the testator's death the reputation of 
 being " children" will take.^ There must be a clear reference to 
 the children, and not a mere reference that involves an inquiry as 
 to their paternity." A bastard child born after the testator's death Bastard bom 
 cannot be entitled under such a description or designation,' unless death cannot 
 it happens to be en ventre sa mire at the date of the testator's **^®' 
 death .^ This rule is based upon the principle that gifts to such 
 future illegitimate children are contra bonos mores, and direct 
 inducements to immorality, and discourage marriage, which the 
 law favours. An illegitimate child, though en ventre sa mire at 
 at the date of a deed, will not take under the description of 
 " child " in the deed without clear words of reference to it.' 
 
 The disabilities of bastards are in modern times principally Disabilities. 
 confined to their incapacity to inherit titles and lands, or succeed Bastard cannot 
 ah intestato to personal property under the Statute of Distributions, succeed os 
 As a consequence of this a bastard cannot have any heirs except ^''^testatoto 
 such as are the lawful issue of his own body ; so, toOj legitimate property. 
 persons alone can take under the Statute of Distributions. This 
 is an important and far-reaching disability. Blackstone gives the 
 
 1 Smith V. Jdbson, 59 L. T. 397. 
 
 ^ Be Horner, Eagleton v. Horner, 37 Ch. D. 695 ; jffe Harrison, Harrison v. 
 Higson, [1894] i Ch. 561. s Crooh v. Hill, 3 Ch. D. 773. 
 
 ^ Theob. Wills, 245, citing Earle v. Tf'ilson, 17 Ves. 528. 
 
 ^ Occleston v. Fuilalove, L. K. 9 Ch. App. 147. This case overrules on this point 
 Hoicarth Y. Milh, L. R. 2 Eq. 389; but in it Lord Selborne, C, dissented, and the 
 decision is not in accordance with certain dicta which fell from Lords Clielmsford and 
 Colonsay in Hill v. Crook (uli sup.) ; Re Hastie's Trusts, 35 Ch. D. 728. See 
 Savage v. Sohertson, L. R. 7 Bq. 176. 
 
 * £e Bolton, Brown v. Boltoniuhi sup.). 
 
 '■ Orooh v. Hill (uhi sup.) ; Holt v. Lindsey, L. R. 7 Eq. 170; Be Lowe, Danily 
 T. Piatt (vhi sup.). 
 
 8 Ibid. But in Be Bolton, Brown v. Bolton (uli sup.), Fry, L. J., said it was a 
 question of doubt whether a child en venire sa mire at a testator's death could have the 
 reputation of being his child. 
 
 ^ Be Shaw, Bobinsony. Shaw, [1894] 2 Ch. 573. 
 
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572 PARENT AND CHILD. [paet ii. 
 
 above instance as the only difference between legitimate and ille- 
 gitimate persons, and goes on to say : ' " And really any other 
 distinction but that of not inheriting, which civil policy renders 
 necessary, would, with regard to the innocent offspring of his 
 parent's crimes, be odious, unjust, and cruel to the last degree." 
 But as a matter of fact their disability extends beyond this limit 
 — thus, a bastard cannot avail himself of the benefits conferred 
 ^tbS w ^^ ^"""^ Campbell's Act ' in compensation for losses sustained by 
 CampbeU's death of certain relatives.^ A bastard, though adopted by and 
 Bastard cannot '^^^^ ^^ ^®P"*« ^^ ^^^ child of its putative father, is a stranger 
 mJnteJ""'*" *° ^^^' ®° ^^^ ^^ ^^ effectual appointment of a testamentary 
 guardian ap- guardian by the latter under 12 Car. II. c. 24.' But in an Irish 
 pointed to It. case, a reputed father having named his executor as guardian of 
 his natural child, the Lord Chancellor, though holding that the 
 child could have no guardian except by appointment of the Court, 
 made the appointment of the person named, without a reference 
 powers not .*° *^^. ^^^ter.^' Again, where a power exercised on behalf of an 
 supplied in illegitimate child is defective, the Court of Chancery wiU not 
 supply relief against the defective execution in favour of such 
 child." So where a testator leaves a legacy to a bastard child, 
 interest upon it is not payable at once from the testator's death, 
 as in the case of a legitimate child,' unless the testator directly 
 orders maintenance out of the interest.^ 
 of^st'^a"!^' As regards the custody of the child the Courts carry out in 
 mother. part the spirit of the maxim partus sequitur ventrem, and assign 
 
 primarily to the mother the care and control of her infant child, 
 not only within the age of nurture, but beyond, for now by 
 statute a pauper mother and her bastard child are inseparable 
 till the latter reaches the age of sixteen, or on marriage, if a 
 female, when it can acquire an independent settlement for itself.'' 
 In cases which did not arise under the statute, the Courts would 
 follow its analogy, and primarily assign the custody of the bastard 
 child to its mother. It has accordingly been held that the 
 mother is entitled to the custody of her infant child in preference 
 to the father, though from his circumstances he may be better 
 able to educate it." And if the putative father obtains possession 
 
 1 I Com. 459. 2 g ^ jQ Yigj g gj_ 
 
 ' Dickinson v. North-JEastern Bailway Co., 33 L. J. Ex. 91. 
 
 * Sleeman v. Wilson, L. E. 13 Eq. 36. 
 
 ^ Bwrry v. Barry, i Moll. 210. But see the Scotch Case of Brand t. Shaws 
 (16 Ct. of Sese. Gas. 315), which decided that the Guardianship of Infants Act, 1886, 
 which entitles a mother to appoint a testamentary guardian to her infant children is 
 not applicable to the case of a bastard child. ^ Crickett v. Dolby, 3 A'^es. 10. 
 
 ' Lowndes y. Lowndes, 15 Ves. 301 ; Dowling v. Tyrrell, 2 E. & M. 343. 
 
 ^ See Beckford v. Tohin, i Ves. 308 ; Perry v. Whitehead, 6 Ves. 546. 
 
 'J 3 & 4 Wm. IV. c. 76, s. 71. 39 & 40 Vict. c. 61, s. 35. 
 
 " Ex parte Knee, i B. & P. N. E. 148. 
 
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CHAP. VI.] ILLEGITIMATE CHILDREN. 573 
 
 of the child by fraud/ or force/ the Court on habeas corpus will 
 order it to be restored to the mother. 
 
 The right of the father to the custody has been recognised, When father's 
 though not fully at first, thus, where he had the custody ot the nized. 
 child fairly, the Court was loath to take it away from him f so 
 where the mother of a bastard child between eleven and twelve 
 years of age obtained a habeas corpus to compel the putative father 
 to bring her before the Court, and the child was brought up 
 before the Court, the latter declared her entitled to exercise her 
 own discretion as to whether she would go, and would not allow 
 her mother to take her against her will.* In a recent oase,^ his 
 right to the custody has been maintained. Indeed, this natural 
 relationship between the child and its parents and other relatives 
 is largely recognized both in law and equity ; ° and except under 
 special circumstances the putative father is, after the mother's 
 death, entitled to the custody of the child.' This claim is not 
 based upon any strict legal right arising out of the legal position 
 of parent and child, or upon any title in the parents to the legal 
 guardianship of their infant child, for the relationship between 
 them forbids that claim, for a bastard has no legal status as a 
 child, even though by repute he may come to have the name of 
 his father, but it is founded on equitable doctrines, and " that 
 sort of blood relationship which, though not legal, gives the 
 natural relations a right to the custody of the child." ^ But it Welfare of 
 must be borne in mind that in the case of bastards, as in that of sidered by the 
 legitimate children, their interests and welfare are the first con- '^°^^- 
 sideration of the Courts.' 
 
 The Legislature, however, has recently gone very far towards ProTldent 
 recognizing a more than g'itast-legal relationship between a bastard and small 
 and his blood connections, for in the Provident Nominations and li^fstaoies 
 
 ' _ Act, 1883. 
 
 Small Intestacies Act, 1883," it provides " that " if a member of 
 any (friendly or industrial) society who is entitled to make a 
 nomination under this Act or the Acts hereby amended is illegi- 
 timate, and has died intestate, and without having made any 
 such nomination subsisting at his death, the directors may pay 
 the sum which such member might have nominated to or among 
 the person or persons who, in the opinion of the majority of them, 
 would have been entitled thereto if such member had been legi- 
 timate, or, if there are no such persons, then the deposits shall 
 
 1 Rex V. Soper, 5 T. E. 278. 2 ^^^ y Hopkins, 7 East, 579. 
 
 5 iJea; V. Moseley, 5 East, 224 n. * Be Lloyd, 3 M. & G. 547. 
 
 5 Be Crowe {an Infant), Ir. L. T. Eep. 1883, p. 72. 
 
 8 See Beg. v. Nash, 10 Q. B. D. 454. 
 
 ' Be Kerr {an Infant), 24 L. E. Ir. 59. 
 
 s Per Jeasel, M.E., in Reg. v. Nash, 52 L. J. 444. 
 
 ' Beg. V. Nash [ubi sup.). i» 46 & 47 Vict. c. 47. " Sect. 8. 
 
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674 PARENT AND CHILD. [paet ii. 
 
 be dealt with as the Commissioners of the Treasury may direct." 
 This provision, of course, only afEects a limited class of the com- 
 munity, but it demonstrates the direction in which the law is 
 nowadays tending. 
 
 The father or mother of a bastard child can maintain a pro- 
 secution for decoying or enticing it away under 24 & 25 Vict, 
 c. 100, s, 56.' The effect of the cases seems to be as follows: 
 Where the infant is within the age of nurture, the right of the 
 mother is paramount as against all claimants, and can be enforced 
 by her though the putative father is in a better social and 
 pecuniary position than herself. Bat where the child has passed 
 the age of nurture, and the father has owned it, and has fairly 
 assumed and retains the custody of it, and it is to the advantage 
 of the child to remain with him, the Court will not assist the 
 mother to regain the control and custody of the child. As 
 against other blood relatives or strangers, the claims of the 
 father and mother are fully recognized ; but in all respects the 
 Courts will look primarily to the interests and advantage of the 
 child. 
 
 It has been before stated (and there is authority for the state- 
 ment) that the parents of bastard children have no legal right to 
 the guardianship of them.^ But as a matter of fact, the mother 
 is frequently appointed guardian to her bastard child.^ As the 
 Court will not appoint a guardian for an infant who has no 
 property, a putative father will not be appointed guardian of his 
 illegitimate child, having no property, unless he makes a settle- 
 ment upon him, and he has no absolute right, under any circum- 
 stances, to claim the guardianship,* whether to take effect during 
 his life, or after death by testamentary appointment.* The 
 mother likewise has no claim to leave testamentary guardians for 
 her bastard children ; ° and where the putative father owns and 
 suitably provides for them, the person nominated in the mother's 
 will as guardian, though found to be a fit and proper person, will 
 not be entitled to their custody and education as against the 
 father ; ' and where illegitimate daughters took considerable 
 fortunes under their father's will, the mother applied for the 
 oflttce of guardian, but the Court appointed another person.^ 
 
 ■i Under this section no person -wlio shall be the mother, or shall claim to be the 
 father of an illegitimate child, shall be liable to be prosecuted on account of getting 
 possession of the child, or taking such child out of the possession of any person haying 
 the lawful charge thereof. ^ Bux v. FeUon, i Bott & Const, P. L. 467. 
 
 3 Macph Inf 555. ■* Macph. Inf. no. 
 
 5 SleekariY. Wilson, L. R. 13 Eq. 36- ' Ord y. Blackett 9 Mod. 116. 
 
 ? See Brand v. Shaws, 16 Ct. of Sess. Cas. 315. This was a decision under the 
 Guardianship of Infants Act, 1886. = Courtou v. Viimnt, Jac. 268. 
 
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CHAP. VI ] ILLEGITIMATE OPIILDKEN. 575 
 
 As between strangers and the parents of a bastard child, it is f^^^^^y °f 
 now clear law that the latter have a very considerable claim to ehiid as 
 its custody, control, and education ; but under all circumstances lll'^^^^,,,^ 
 the benefit and welfare of the child are kept prominently before strangers, 
 the mind of the Court which has to decide the question of the 
 custody. At one time the mother and her illegitimate child 
 were deemed very little more than strangers to one another ; ' and 
 indeed this theory and assumption have been acted upon ; and 
 in one case where a mother had left her bastard child^ an infant 
 of a year old, in the charge and custody of friends for seven 
 years, but was desirous of taking her child back into her own 
 custody, Wightman, J., on the application of the mother by 
 habeas corpus, refused to give the infant over into her custody, on 
 the ground that neither the father nor the mother had any 
 particular right to the custody of their bastard child." And in 
 another case where the mother applied by habeas corpus for the 
 custody of her illegitimate child, who had attained the age of 
 twelve, and was desirous of remaining with her present custo- 
 dians, the Court refused to deliver up the child to her, but 
 allowed the child to make her choice whether she would go to 
 her mother or remain where she was.^ The natural tie between 
 the mother and her bastard child has on equitable principles 
 lately had efiect given to it ; and, subject to the interests and 
 benefit of the child, her right to its control and custody is 
 established.^ Bat this right is not absolute,* or the same as that 
 of a father of a legitimate child ; " but as she has statutory 
 liabilities cast upon her in respect of its maintenance so corre- 
 sponding rights are recognized in her.' 
 
 At common law the putative father was not compellable to statutory 
 support his bastard child, or contribute in any way to its main- putativ^e° 
 tenance. But by an early statute ° the reputed father might be tain tataTd™" 
 charged with the sustentation of his bastard child for the purpose child. 
 
 1 See remarks of Maule, J., in Be Lloyd, 3 M. & G. 547. 
 
 2 Reg. V. White, 10 L. T. 0. S. 349. 
 ^ Be Lloyd {ubi sup.). 
 
 * Beg. T. Nash (Bose Oareifs Case), 10 Q. B. D. 454 — oven-uling Beg. v. White {ubi 
 sup.). The facts of this case were as follows : — A woman placed her illegitimate female 
 child, soon after its birth, with one Nash and his wife, who were labouring people, intending 
 to pay them for it. She fell into ill health, and was unable to continue her payments ; but 
 Nash and bis wife continued to maintain the child till it was nearly seven years old. The 
 mother then applied to have the child delivered to her, which the Nashes refused. She 
 therefore applied for a habeas corpus, which was refused by North, J., but granted by a 
 divisional Court. The Nashes appealed. The mother, who was a kept mistress, did 
 not propose that the child should live with her, but with a respectable married sister, 
 whose husband was in a station superior to that of Nash. The Court of Appeal allowed 
 the mother's claim. 
 
 ' Be Vllee, 54 L. T. 286. " Barnardo v. M'Hugh, [1891] App. Gas. 388. 
 
 ' Per Halsbury, C, in Barnardo v. M'Hugh, p. 395. ^ 18 Eliz. c. 3. 
 
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576 
 
 PARENT AND CHILD. 
 
 [PAET ir. 
 
 Marriage of 
 mother does 
 not free him 
 from liability. 
 
 Putative 
 father liable 
 to the parish 
 as well as 
 mother. 
 
 No liability 
 apai-t from 
 statutory 
 order. 
 
 of relieving the parish in which it was born ; and under the 
 general poor-law system of administration he was rendered liable 
 for its support in order to relieve the parish ; ' but by later 
 legislation his liability is now to afford relief to the mother.^ He 
 can be made liable for its support till it reaches the age of 
 thirteen ; but if the circumstances of the case warrant it, his 
 liability can be extended till it attains sixteen years.^ The 
 marriage of the mother no longer frees him from his liability 
 until the period for which he has been ordered to contribute 
 towards its support has expired ^ or the child has died ; * and the 
 justices have no power to inquire whether the husband of the 
 mother (if she has married) is or is not able to support the 
 bastard chUd, but must enforce the order,^ and they must do so 
 where the mother is a married woman living apart from her 
 husband, who subsequently returns and resumes cohabitation 
 with her.'' The father cannot oust the jurisdiction of the magis- 
 trates to order him to contribute to the support of the child on 
 the application of the mother for that purpose, by any arrange- 
 ment with her indemnifying him against any liability in respecb 
 of the child.^ He may be committed to prison for a term not 
 exceeding three months if he refuse to comply with the order, 
 and no sufficient distress be found on his premises to satisfy the 
 amount due under the order.' 
 
 The putative father is not only liable to the mother but also to 
 the union, and the Guardians (now called District Councillors) may 
 recover by an order of justices the cost of relief of a bastard child 
 who has become chargeable to the union under certain circum- 
 stances ; and the payment to be made under such an order is recover- 
 able by the relieving officer or other officer appointed to receive it.'" 
 An allowance will be made out of a lunatic's estate for illegiti- 
 mate children, but not for their mother." 
 
 A father is not legally liable to support his legitimate children 
 apart from his statutory Hability, or unless he contracts to render 
 himself liable, or so acts as to raise an implication of an inten- 
 tion so to render himself liable, though very slight evidence is 
 required to fix him with this liability.'' It is equally the case 
 with regard to his bastard children ; so if he contracts expressly 
 1 4 & 5 Wm. IV. c. 76, s. 72. 2 7 & 8 Vict. c. 101, s. 5. 
 
 3 21; & ^6 Vict. C. 65, S. 5. .,. r ,1 i- f 
 
 4 The latter portion of section 5 of 7 & 8 Vict. c. 101 providing for the cessation of 
 the order on the marriage of the mother, is repealed, isotheron v. Scott, 6 y. a. U. 
 
 s « & 7,6 Vict, c 65, B. S. ' Bardy v. Atlierton, 7 Q. B. D. 264. 
 
 7 Exparte Grimes, 22 L. J. IMC. C 153 ; S. C. I7 J"r- SS4- 
 
 8 Ch-iffith V. Emns, 47 L. T. 417. ' 35 & 36 V^t. c 76, s. 4- 
 
 10 36 & 37 Tict. c. 9, s. 5. " Exparte Haycock, 5 Euss. 154- 
 
 12 See ante, chap. ii. pp. 516 et se(i. 
 
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CHAP. VI.] ILLEGITIMATE CHILDREN". 677 
 
 to render himself liable, or so acts that an implication to render 
 himself liable can be raised, he will be held to his bargain. If 
 the father has adopted a bastard child as his own, though no 
 ■order has been made on him, he is liable for the expenses of 
 nm-sing and necessaries ; ' or if he has consented to pay an 
 annual sum for its support, he must continue to do so, or provide 
 for the child at his own expense, or give- clear and distinct notice 
 of his intention to discontinue the payment of such annual sum.^ 
 Where he has refused to continue its support until the 
 mother obtained an order of affiliation, he will not be liable for 
 the arrears of maintenance.' An agreement between the father 
 and the mother that she is to support the child, and that he will 
 allow her a sum for such support, will be enforced.* It is not, 
 however, the relief of the mother, but the benefit and interests of 
 the child, that the law regards ; and a contract by the mother of 
 a bastard child to release the putative father, in consideration of 
 a present money payment, from all further payments in respect 
 of the child, is not void in law ; but neither is it a bar to the 
 jurisdiction of the magistrates to make an order of affiliation on 
 the father, such order being, under the statute, for the benefit of 
 the child, and not of the mother exclusively.' 
 
 A contract based upon fornication or illicit cohabitation in the Agreement, 
 future, whether by deed or simple contract, is void as being smpie co°n- ^ 
 <:ontra lonos mores.^ As regards past cohabitation, the rights *™f„ture^'* 
 of the parties vary as the arrangement was carried out by cohabitation. 
 deed, or by simple contract. If the man contracts by deed he deed brseTo/ 
 is bound, for the law presumes a consideration ; thus, where he [fo^ yaUd!*"*" 
 covenants to pay an annuity to the woman in consideration of 
 past cohabitation, or gives her a bond to secure to her the pay- 
 ment of money for her support or the support of her children, 
 though such consideration is really no consideration at all, the 
 contract is valid, and an action may be maintained upon it.' 
 Where the arrangement between the parties is only by simple Agreement by 
 contract, the man is not bound by his promise ; so where in inTOM?""*™"* 
 a declaration in assumpsit, the woman averred that the defend- 
 ant had seduced and debauched her, and induced her to co- 
 habit with him, whereby she"^ had been injured in her character 
 «,nd deprived of the means of procuring an honest livelihood ; 
 
 J Eesheth v. Oowing, 5 Esp. 131 ; see also Gore v. Hawiey, ? F. & F. qoo. 
 Carmrony^ Baker, i C. & P. 268 ; Nichole v. Allen, 3 C. & P. 36 ; and see 
 Mortimore v. Wright, 6 M. & W. 482. 3 Fy^rilio v. Growther, 7 D. & R. 612. 
 
 ' «?««« V. ^rawbndge, 2 0. B. 308 ; Knowlman v. Bluett, L. R. qEx. 307. 
 5 FoTltt V. Koetzow, 29 L. J. M. C. 128. ^ J / 
 
 ^ BoUnson v. Oox, g Mod. 263. 
 
 ' Gibson V. DicUe, 2 M. & S. 463 ; Marchioness of AnnandaU v. Harris, 2 P. 
 Wms. 432. ' 
 
 2 
 
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578 
 
 PAEENT AND CHILD. 
 
 [PAET II, 
 
 ment valid. 
 
 that the two had agreed to discontinue the immoral connec- 
 tion and live apart ; and that the defendant, as a compensation 
 for the injury and in consideration of the promises, undertook 
 to pay the plaintifE a yearly sum towards her maintenance, 
 which he had failed to do, it was held a bad declaration, as 
 Where a child disclosing no legal consideration for the undertaking.' But 
 p^orted^^rae- where there is a child for the mother to support, then an arrange- 
 ment by simple contract to provide for the maintenance of 
 mother and chUd will bind the father, because the mother 
 assumes a larger responsibility than is placed upon her by law.'* 
 The above remarks are a statement of the law ; but the law does 
 not seem to be based upon a logical foundation or common-sense ; 
 for why should a man be held liable because he has signed a 
 deed, and free from liability because his agreement takes some 
 other form ? The consideration for holding him bound because a 
 chUd has to be supported by the mother is not that she under- 
 takes a larger responsibility than is placed upon her by law, 
 because by law she is liable for the support of her bastard until 
 it attains the age of sixteen. It is doubtful whether at the 
 present day the decisions would altogether conform to the above 
 statements of the law. 
 
 As in the case of the father, a mother at common law was not 
 responsible for the maintenance of her bastard child, and it is 
 only within recent times' that the statutory duty has been 
 imposed upon the mother of an illegitimate child, so long as she 
 shall be unmarried or a widow, to maintain such child as a part 
 of her family, until such child shall attain the age of sixteen.* 
 Her liability ceases on the marriage of such child, if a female, or, 
 as has already been seen, on her own marriage,^ in which case 
 her husband wiU be bound to maintain such child until it has 
 reached the age of sixteen, or until the death of its mother." 
 But if the mother has separate estate, and her husband cannot 
 support his family, then her liability to support the illegitimate 
 children revives.' Where the mother of a bastard child dies, 
 there is no obligation on her personal representatives to expend 
 the money or property which belonged to her in the maintenance 
 of such child, the liability of the mother being purely personal.' 
 The statutory liability was imposed upon her to prevent the cost 
 
 Liability of 
 mother. 
 
 ; Jennings 
 
 1 Beaumont v. Beeve, 15 L. J. Q. B. 141. ,„t T P P 81 • 
 
 2 Smith T. Boche, 28 L. J. C. P. 237 ; B^ v. Gregory, 19L. J. C P. 81 , 
 V SroiDn, 12 L. J. Ex. 86 ; Orowhwst v. Laverack, 22 L.J. Jix. 57. 
 
 3 4&'s Wm. IV.0.76. 
 
 ■i Sppt 71 * See airfe, p. 516. . 
 
 " 4 & 5 Wm. IV. c. 76, s. 57- There is no corresponding liability on the part ot 
 the wife to support her husband's illegitimate child. 
 7 45 & 46 Vict. 0. 75. s. 21. 
 " Bvttinger v. Temple, 33 L. J. Q. B. I. 
 
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CHAP. vi.J ILLEGITIMATE CHILDEEN". 579 
 
 of support and maintenance of bastards falling upon the rates, 
 but the statutes in no way impose that liability upon her estate. 
 As the mother is boiind to support her bastard child, it necessarily BMta^^takes 
 follows that so far as the working of the poor laws is concerned, mother till 
 they should be inseparable, and she confers her parochial settle- six'««°- 
 ment on her child until it acquires a new settlement for itself, 
 which it cannot do (unless a female and marries) until it reaches 
 the age of sixteen;' but the mother's settlement must not be a 
 derivative one ; in which case the child takes its birth settle- 
 ment.^ 
 
 The mother may, under certain circumstances, call upon the Howfather's 
 man whom she alleges to be the father of her bastard child to enforced by 
 support it; thus, it is provided that "any single woman who '"°*^''- 
 may be with child, or who may be delivered of a bastard child 
 after the passing of this Act, may either before the birth or at 
 any time within twelve months from the birth of such child, or 
 at any time thereafter, upon proof that the man alleged to be 
 the father of such child has within the twelve months next after 
 the birth of such child paid money for its maintenance, or at any 
 time within the twelve months next after the return of the man 
 to England alleged to be the father of such child, upon proof 
 that he ceased to reside in England within the twelve months 
 next after the birth of such child, make application to any one 
 justice of the peace acting for the petty sessional division of the 
 county, or for the city, borough, or place in which she may reside, 
 for a summons to be issued on the man alleged by her to be the 
 father of the child, .... and the justice shall thereupon issue 
 his summons to the person alleged to be the father."^ The pay- 
 ment by the putative father on an order obtained by guardians 
 for the support of the child is not the same as an order obtained 
 by the mother so as to entitle her to rely on the payment as 
 having been made to her by the putative father.* 
 
 The summons must be personally served on the alleged Personal 
 putative father, or left at his last place of abode ; and this is a summons, 
 question of fact for the justices to determine.* If the putative 
 father is out of the jurisdiction, the summons may be left at his 
 last place of abode out of England, if he possesses one.'' But 
 where he ordinarily resides out of the jurisdiction, the service of 
 
 1 39 & 40 Vict. c. 61, B. 35 ; Overseers of Manchester v. Guardians of Ormshirh 
 Union, 24 Q. B. D. 678. 
 
 ^ Chuirdians of Northwicli Union t. Guardians of St. Pancras Union, 22 Q. B. D. 
 164. 3 35 & 36 Vict. 0. 65, B. 3. 
 
 ^ BilUngton v. Cyples, 52 L. T. 854. 
 
 ° See Beg. v. Lee, 58 L. T. 384 ; Beg. v. Winton and otliers, 59 L. T. 382 ; Beg. 
 V. Farmer and another, [1892] i Q. B. 637. 
 
 * Beg. T. Farmer {vii sup.). 
 
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580 PARENT AND CHILD. [paet ii. 
 
 a summons on him abroad will not give the justices in England 
 
 jurisdiction to make an order on him.' 
 
 " Single The term " single woman " includes a widow ,^ also a married 
 
 woman. woman living apart from her husband ; " but the application for 
 
 relief cannot be made by a married woman living with her 
 
 husband, and supported by him/ even though the summons was 
 
 taken out against the putative father before her marriage, and 
 
 she was prevented from serving it by his default.^ 
 
 Order of The justices in petty sessions may make an order on the 
 
 father. putative father for the maintenance and education of the child 
 
 as they may think fit, and enforce the order by distress and com- 
 
 Expirationof mitment.' No such order shall be in force except for the 
 
 jnstices' order. . . • i t n i i 
 
 purpose of recovering money previously due under such order, 
 after the child in respect of whom it was made has attained the 
 age of thirteen years, or after the death of the child ; though the 
 justices have a discretionary power to enlarge its operation until 
 the child reaches the age of sixteen.' 
 Eight of appeal The father has the right of appeal to quarter sessions against 
 against^order. the Order of the justices.** The mother has no appeal if her 
 application is refused, but she may make any number of applica- 
 tions within the statutory period ; and dismissal on the merits is 
 no bar ; ' though a previous dismissal on the merits should be 
 taken iato serious consideration by the justices on any subsequent 
 application. If the father appeals to quarter sessions against 
 the bastardy order, and the Court quashes it, their decision is one 
 on the merits, and is final, and the mother cannot take fresh pro- 
 ceedings before justices in petty session.'" The appeal by the 
 father is a rehearing, and the respondent must begin her case as 
 she did before the justices. The notice of appeal must state the 
 general grounds of appeal." When the application is made 
 within the twelve months, it is not necessary that the summons 
 upon it should issue at the same time.'^ 
 anrisdiction of Where a bastard is born abroad, and of a foreign mother, the 
 jnstices does j^g^ggg cannot make an order on the putative father to contri- 
 b^fSdrbom bute to its support and maintenance ; " but they have jurisdic- 
 
 abroad. 
 
 1 Eeq. V. Thompson, 12 Q. B. D. 261. Under 44 & 45 "^jot; "•24, s. 6 an EngUsh 
 woman Sieging thit a person ordinarily residing in Scotland is the father of her hastard 
 S mTy hare recouiVe to the Scotch Conrts ; and ««ce versd m the case of a 
 Scotch woman and an alleged English pntative father. See JSeg. v. Tlwmpson («5t 
 ^„n ) - Seg. V. Wi/mondham, 2 Q. B. 54. 
 
 '• ^X^i ^nS'&Vt.e. " Beg. v. Skingler, 17 Q- B. D. 49- 
 
 12 FotU V. Camhndge, 27 L. J. M. C. 62. 
 " Jieg. V. Blane, 28 L. J. M. C. 216. 
 
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CHAP. VI.] ILLEGITIMATE OHILDEEN. 581 
 
 tion to make an order where the child is born in England, 
 though begotten in a a foreign country ; ' and if the child is born 
 on an English ship on the high seas, it is the same as if the child 
 had been bom in England.^ 
 
 The domicil of origin of a bastard child is that of its mother DomioU of 
 at the time of its birth.^ If the mother acquires a different ^^^,.^ 
 domicil to that which she had at the time of the birth, her 
 illegitimate offspring will derive the new domicil from her. 
 
 ^ Hampton v. Bidkard, 43 L. J. M. C. 133. 
 
 2 Marshall v. Mwgatroyd, L. R. 6 Q. B. 31. From this it would follow that if a 
 bastard child were born on a Scotch or Irish ship, though the vessel were British, the 
 justices in England would not have jurisdiction. 
 
 ^ Mr. Dicey is of opinion (Dom. 102) that the domicil of the illegitimate infant is 
 not changed by the marriage of its mother, so that its domicil should follow that of its 
 step-father. But this view is open 'to the remark that, as by English law the 
 husband is liable for the support of his wife's illegitimate children born before the 
 marriage, such would become one of her husband's family ; and as its rights and those of 
 the step-father in respect of property could not be in any way affected, the power of con- 
 ferring a new domicil may exist in the step-father. 
 
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PART III. 
 
 GUARDIAN AND WARD. 
 
 CHAPTER I. 
 
 NATUEE OP THE OFFICE OF GUAEDIAN. 
 
 PAGE 
 WHY GUAEDIAITS NECESSAEY 582 ' 
 
 Distinction between Eights and Duties op Paebnt and 
 
 GUABDIAN rg3 
 
 GtTAEDIAN OP THE PeKSON AND ESTATE .... 583 
 
 GUAEDIANSHIP A TeUST 584 
 
 Eight op Suevivoeship in Testambntaet Gitaedians . 585 
 
 GUAEDIAN must MAKE NO PeOPIT OP HIS TeUST . . . 585 
 
 Why In tte young the mind is immature, experience is lacking, the 
 
 Mce^sary. judgment IS defective and more or less incapable of forming an 
 accurate conclusion on matters which intimately concern their 
 welfare. Again, an infant, by reason of its tender years, is weak, 
 is exposed to the attacks of those who would take advantage of 
 his weakness, and so needs protection. When the parents of the 
 infant are living, they supply the want of judgment and experi- 
 ence, and aflford, or are supposed to afEord, the necessary protection 
 for the nurture and education of their offspring. But should the 
 parents be dead, or unfitted for the duties dictated by nature, 
 then the law humanely interferes, and either actively appoints 
 guardians to protect the infant's person and property, or permits 
 such to be chosen. For these reasons a guardian has been 
 styled a "temporary parent.'" 
 
 In English law the guardian performs the double office of 
 educating and protecting the person of the ward, and of managing 
 his affairs and property until majority. In Scotch law, however, 
 which is directly based on the Roman, the period of guardianship 
 over a minor who has not reached the age of fourteen is divided 
 
 1 I Bl. Com. 460. 
 
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CHAP. I.J THE OFFICE OF GUARDIAN. 583 
 
 into two portions ; a, up to the age of fourteen the guardianship Tutory. 
 
 is called tutory (tiitela) ; b, after tutelage and until majority 
 
 it is curatory (cumtda). The ttUor is appointed to the protection Curatory. 
 
 of the pupil's person and property, and so acts for the latter as 
 
 to supply all that is deficient through his imperfection of reason 
 
 and want of age. The curator, on the other hand, is appointed 
 
 for the purpose of guarding and managing the affairs of those 
 
 who have passed papilarity, but not yet attained majority, or, 
 
 analogously, of those who, from any infirmity of understanding, 
 
 are incapable of acting like persons of capacity. The difference 
 
 between these two species of guardianship is summed up in the 
 
 expressions, " tutor datur personce, curator rei," and " a curator 
 
 consents to a minor's deeds, a tutor grants them." 
 
 The relation of parent and child has been said to be that of Distinction 
 
 guardian and ward, because it is the duty of a parent to protect and duties of 
 
 and shelter his child, and to rear it in a manner which becomes P*™^* ^^^ 
 ' _ guardian. 
 
 one who is intrusted with a great responsibility. This is rather 
 the moral than the legal aspect of the question, for on comparing 
 the law of parent and child with that of guardian and ward, it 
 will be seen that the powers and authority of the parent are far 
 wider and larger, and less subject to judicial control than those 
 of the guardian ; though on the other hand the liabilities of the 
 guardian are in some respects less than those of the parent. 
 Thus, " the parent must support his child from his own means ; 
 and in return the child's labour and services belong to him. But 
 the gtiardian is not bound to supply the wants of his ward, except 
 from the ward's own estate in his hands and the liberality of 
 others, though it were to keep the child from starving. On the 
 other hand, the guardian has no more right to the labour and ser- 
 vices of his ward than any stranger."^ Again, there is no power 
 to prevent a father from encouraging his child to contract an un- 
 equal marriage, while a guardian would be prevented from marry- 
 ing his ward into an inferior social station ; and the grounds for 
 removing a ward out of the care and custody of his guardian 
 would be in many cases insuflBcient to warrant the interference of 
 the Courts to remove a child out of the custody of the father. 
 
 The natural division of guardians is into guardians of the 
 person and guardians of the estate. Where a guardian is assigned Guardian of 
 to the person of the ward, the relation between the two is most ^^^ ^^'''°°' 
 like that of parent and child. The guardian appointed to the Guardian of 
 estate bears a close resemblance to a trustee appointed in the *® ®^***®- 
 ordinary way for the purpose of managing an estate and executing 
 certain trusts in connection with it. But very frequently the 
 ' Sch, Dom. Bel. s. 320, 
 
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la 
 
 584 GUARDIAN AND WARD. [pakt i„. 
 
 same individual is the guardian of the person and the estate • 
 thus, a guardian appointed by will is, unless there is an express' 
 provision to the contrary, guardian both of the person and the 
 estate;' and the Court of Chancery, where there is no suitor 
 action pending before it, will appoint a guardian both for the person 
 and the estate. But the Court, on the contraiy, where a suit is 
 pending, appoints a guardian for the person only, the estate being 
 under the direction of the Court ; and it often appoints guardians 
 for special purposes connected with the ward's property or person ' 
 Guardianship It seems agreed by all writers on this subject that the relation- 
 ship between guardian and ward is one vbm-i^ruB fidei, not only 
 while It lasts, but even after it has ceased to exist.' During its 
 existence the parties are under a general disability to deal with 
 each other ; and this disquaUfication proceeds obviously from the 
 necessity of protecting the ward. But even after the ward has 
 attained majority, any transactions between them in the settling 
 of their accounts or deUvery up of the trust, if to the advantage 
 of the guardian, will be regarded with suspicion, if they have been 
 entered into but a short time after the termination of the relation- 
 ship, unless ample deliberation on the part of the ward, and the 
 utmost good faith on the part of the guardian, are clearly demon- 
 strated.^ The Court is suspicious of undue influence, and that 
 though the oflSce may be legally at an end, yet its moral effects 
 may not have worn away,* for a gift which might seemingly 
 be the act of a generous and grateful heart may really proceed 
 from the impulse of a mind misled by undue kindness or forced 
 by oppression.* " The relation of guardian and ward is strictly 
 that of trustee and cestid que trust. It is a peculiar relation of 
 trusteeship A guardian is not only a trustee of the pro- 
 perty, as in an ordinary case of trustee, but he is also the 
 guardian of the person of the infant, with many duties to per- 
 form, such as to see to his maintenance and education."' 
 " Guardians were but trustees," and guardianship of the person of 
 an infant was a more exacting species of trusteeship than the 
 mere trust to hold and dispose of his property.' " It is not 
 to be disputed that if a person appointed guardian in that char-, 
 acter possesses himself of any of his ward's property, of that 
 property he becomes a trustee, although he is only a trustee by 
 construction and not appointed by name.'" Another proof of 
 
 1 SedeU v. Constable, Vaugh. 177. 
 
 ^ Maoph. Inf. 114 ; and see^ost, chap. ii. p. 610. 
 
 ' Taylor v. Johnston, 19 Ch. D. 603. 
 
 ■• I Story, Ec[. o. 317 ; Dawson v. Massey, i B. & B. 226. 
 
 ' Wedderbwn v. Wedderbum, 4 Myl. & Cr. 41. 
 
 « Hylton V. Hylton, 2 Ves. 548 ; Hatch v. Hatch, 9 Ves. 297. See pp. 705 et se([. 
 
 ' Per Lord Eomilly, Mathew v. Brise, 14 Beav. 341, 345. 
 
 " Dulce of Beaufort v. Berty, I P. Wms. 703. 
 
 » Sleeman v. Wilson, L. K. 13 Eq. 36. See also Beriett v. Hervey, 1 Sim. & St. 50 
 
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CHAP. I.J THE OFFICE OF GUARDIAN. 585 
 
 the fiduciary relation is that where there are two or more testa- Bight ot sur- 
 
 -1 o . 1 T • J 4. 1, vivorship in 
 
 mentary guardians, and one of them dies or is removed, tne testamentary 
 
 survivor or survivors continue in their office.' Though this right g«"<Jlans. 
 of survivorship is not acknowledged in the case of guardians 
 appointed by the Court of Chancery, yet in practice the survivor 
 or survivors will be re-elected by the Court without a reference.^ 
 Again, joint guardians may sue together on account of any joint 
 transaction founded on their relation to the ward, even after the 
 relation ceases. Also, the receipt of one is the receipt of all. 
 further, one guardian can maintain trespass against the other for 
 forcibly removing the child against his wishes, as one of two joint 
 trustees cannot act in defiance of the other;' and where one 
 guardian consents to his co-guardian's misapplication of funds 
 he is liable.* And where a person puts himself in loco parentis 
 and mansiges the infant's property he must do so accurately 
 and with complete fairness ; and if the account settled between 
 the guardian and the ward on the latter attaining his majority is 
 found to be false and fraudulent, such account, even after a long 
 period of time, will be set aside, and the accounts will be directed 
 to be taken with special inquiries.* 
 
 From the doctrine that a guardian is a trustee, it follows that Guardian 
 his " trust is one of obligation and duty, and not one of specula- profit of his 
 tion and profit. He cannot reap any benefit from the use of his '''"^*" 
 ward's money. He cannot act for his own benefit in any con- 
 tract or purchase, or sale as to the subject of the trust. If he 
 settles a debt upon beneficial terms, or purchases it at a dis- 
 count, the advantage is to accrue entirely to the infant's benefit. 
 Every guardian .... is bound to keep safely the real and per- 
 sonal estate of his ward, and to account for the personal estate, 
 
 and the issues and profits of the real estate If he has 
 
 been guilty of negligence in the keeping or disposition of the 
 infant's money, whereby the estate has incurred loss, he will be 
 obliged to sustain that loss,"' on the principle that all persons 
 acting in a fiduciary character are bound to use the same care 
 and management that a prudent man would exercise in the 
 conduct of his own affairs. Wherever a fiduciary relation is 
 established between the parties, the trustee must act in the most 
 open and faithful manner, and seek no personal profit from the 
 advantage he gains from his position.' 
 
 ^ Myre v. Countess of Shaftesbury, 2 P. Wms. 103. 
 
 2 Hdl V. /ones, I Sim. 41. In America there is the right of survivorship among 
 guardians appointed hy the Court of Chancery. Sch. Dom. Eel. s ^22 
 
 2 Gilbert v. Schwench, 14 M. & W. 488. 
 
 * Sch. Dom. Eel. s. 322. 
 
 5 Allfreyy. Anfrey,i-j L. J. Ch. 30; see also Oohman v. MeUersh, 2 M, & G 
 309- ■ ° 2 Kent, Com. s. 229. 
 
 ' See Erlanger y. New Sombrero Phosphate Co., 3 App. Cas. 1218. 
 
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CHAPTEK II. 
 
 THE DIFFERENT KINDS OF GUARDIANS, AND THE 
 METHODS OP APPOINTING THEM. 
 
 TILL Appoint. 
 
 AUTHOEITY OF GUABDIANS, WHENCE DeEIVBD 
 GUABDIANS BY NATUEB AND NUETUEB . 
 
 GUAEDIANSHIP OP THE MOTHBE 
 
 PAEENT QUASI-GtrAEDIAN OF PEOPEETT 
 MBNT BY THE COTJBT 
 
 GrAEDiANS BY 4 & 5 Ph. & M. c. 8 
 
 Age of Abduction undbe 24 & 25 Vict, c, 
 
 Ceiminal Law Amendment Act, 1885 
 GuAEDiANS IN Socage .... 
 
 to whom guaedianship belongs . 
 
 Duties, etc., op the Guaedian 
 guaedianship by custom : the custom op london 
 guaedianship by the custom op gavelkind , 
 
 GUAEDIANSHIP BY THE CUSTOM OF THE MANOE . 
 
 Testamentaey oe Statute Guabdians undee 12 Cae. II, 
 c. 24 AND 49 & 50 Vict. c. 27 
 Fathee alone could Appoint undee 12 Cab. II. 0. 24 
 Motheb may now Appoint undee 49 & 50 Vict. c. 27 
 What is a Supficient Appointment .... 
 Guaedian cannot be Appointed to- Childebn op 
 
 Twenty-one, ok Bastaeds 
 
 Who may be Appointed 
 
 Guaedians OP Peeson and Estate .... 
 
 Guabdians by Election of Infant 
 
 GuAEDiAN"s Appointed by Court of Peobate, oe Dueantb 
 
 MINOEE -aETATB . * 
 
 Guabdians Appointed by the Couet of Chanceey : theie 
 
 Oeigin 
 
 Gbounds fob Appointment by the Couet . 
 guaedianship of ixpants act, 1 886 .... 
 When Guaedian of the Peeson Appointed 
 When Guaedian of the Person and Estate Ap- 
 pointed 
 
 How Guabdians are Appointed 
 
 Who MAY be Appoixted 
 
 No Suevivobship among Chanceey Guabdians . 
 Guabdians Appointed bt a Foeeign Couet 
 
 Gbadual Recognition of the Rights op Foeeign 
 
 Guabdians 
 
 Eight of Foreign Guabdians to Custody op Waed. 
 Powers of Guardians over Ward's Peopbety . 
 
 S87 
 S88 
 5S8 
 
 589 
 589 
 589 
 S89 
 590 
 
 S9I 
 591 
 592 
 
 S93 
 593 
 
 S95 
 596 
 
 597 
 597 
 
 598 
 599 
 600 
 601 
 
 601 
 
 602 
 603 
 603 
 
 604 
 
 604 
 604 
 60s 
 606 
 607 
 
 608 
 609 
 609 
 
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CHAP. ii.J DIFFEEENT KINDS OF GUARDIANS. 587 
 
 PAGE 
 
 Guardians Appointed foe Special Purposes , . . 6io 
 Application fob Guardian under Settled Estates 
 
 Act, 1877 610 
 
 QUASI-GUABDIANSHIP 6ll 
 
 Guardians or Committees of Lunatics .... 612 
 No Guardianship of Prodigi ok Spendthrifts . . 613 
 Custody of Infant Felons 613 
 
 From time to time there have been many species of guardianship, 
 
 some of which are abolished, others have fallen into desuetude, 
 
 without being actually abolished, and others are nowadays resorted 
 
 to but very rarely.' Guardians derive their authority either from Authority of 
 
 the law, or a custom recognized by the law, or a special appoint- whence ' 
 
 ment ; that is to say, certain persons are designated and marked '*«"^^'J- 
 
 out by the law to fulfil the office, or are specially appointed for 
 
 that purpose, either (i) by the father of the infant ; (2) by the 
 
 infant himself ; or (3) by a Court of competent jurisdiction. 
 
 This chapter will deal with the different kinds of guardianships 
 
 most in use. 
 
 (i) Guardians by authority of the law. 
 a. By nature and nurture. 
 I. By 4 & 5 Ph. & M. c. 8. 
 c. In socage. 
 
 (2) Guardians by custom. 
 
 (3) Guardians by special appointment. 
 
 a. Testamentary guardians under 1 2 Car. II. c. 24 and 
 
 49 & 50 Vict. c. 27. 
 6. By election of the infant. 
 c. By a Court of competent jurisdiction. 
 
 i. By Court of Probate, guardians durante minore 
 estate, 
 
 ii. By Court of Chancery. 
 
 (4) Foreign guardians. 
 
 (5) Guardians appointed for special purposes under different 
 
 statutes. 
 
 ,-..1!,^^^'''^ Coke divided guardianship into three classes: (i) by common Zaio, which 
 included a, guardianship in chivalry, which disappeared with the old Court of Wards 
 <ind Liveries abohshed by 12 Car. II. c. 24; 6, in socage; c, by nature- d bv 
 nurture. (2) £y statute law, 4 & S Pt- & M c. 8. (3) gy 'cmiol. GuIrdianshiD 
 by custom in certain localities has virtually fallen into disuse. ForThetpecW customs of 
 sZll"^ TfT *" "*^'°' copyholders in dififerent manors, the reaLr is referred to 
 Skinl nr^'^^-'^r^^-- M^cphorsou on Infants enumerates no fewer than 
 eleven kinds of guardianship, viz.. (i guardianship in chivalry; (2) in socage 
 £ ^^^Tl'"'" ' ^^l^y °at'J>-e and nurture ; (5) testamentary guardianship at common 
 &M f.^J,^^Z'fTl°^'^n'^''^^''''^^°^'''' (7) by election; (8) uX 4 ^ Ph 
 
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of the mother. 
 
 588 GUAEDIAN AND WARD. [part hi. 
 
 ( I ) Guardians ly Authority of the Law. 
 
 Guardians by ^' Guardians hy Nature and Nurture. — Passing over the consi- 
 the^iaw^ °^ deration of the old kinds of guardianship known as "by nature " ' 
 Guardians by ^°<i " ^0"" nurture," ^ it is sufScient to notice shortly guardianship 
 nurture*'^'* by nature and nurture. " The father is entitled to the custody 
 of his own children during their infancy, not only as guardian by 
 nurture but by nature ; ' and it is " the legal natural right of the 
 father to have the custody of the child." * It is a guardianship 
 pointed out by nature, and belongs exclusively to the parents. 
 The right of the father, except as limited by statute and the 
 control of the Courts, is absolute even against the mother,* 
 though the child be an infant at the breast ; ^ but the guiding 
 principle of the Courts in modern days is the interest of the 
 child. 
 Guardianship The mother had no absolute right to be the guardian of her 
 children, but where no other was appointed, she was chosen as 
 being properly so by nature and nurture ; ' but now on the death 
 of the father she becomes the legal guardian of her children, sole, 
 if the father has not appointed, and joint with any that he may 
 have so appointed.^ Her guardianship, if not superseded by the 
 appointment of a new guardian by the Court, is the proper and 
 legitimate custody till the infant attains twenty-one.' According 
 to the older law, neither the putative father nor the mother of an 
 illegitimate child had the legal right of guardianship ; '° but the 
 tendency of the modern law is to recognize the mother not only 
 as the natural but the legal guardian of her bastard child," and is 
 entitled to its custody unless there are very strong reasons for 
 displacing her right ; so that she may sue out a writ of habeas 
 corpus for the recovery of its person from strangers into whose 
 
 1 Guardianship by nature was originally an incident of tenure in chivalry; it 
 belonged primarily to the father (the mother and other ancestors could be guardians 
 also), and only affected the person of the heir, and was based upon the interest of the 
 ancestor in disposing of his heir in marriage ; it lasted till the heir attained twenty-one. 
 Hargrave (note 12 to Co. Litt. 88 h) thought that at the time he wrote this species of 
 guardianship still existed. Maopherson (Inf. p. 57), on the contrary, was of opinion 
 that, being an office of chivalry, it disappeared with the military tenures. 
 
 ^ Guardianship for the cause of nurture vested in the parents, but extended only to 
 the government of the person, and terminated at fourteen. Macph. Inf. 60. 
 
 ■' Ex parte Hopkins, 3 P. Wms, 152 ; see also Stileman v. Ashdown, 2 Atk. 477 ; 
 T^ellesley v. Dulce of Beaufort, 2 Euss. 21 ; 1 Bl. Com. 461. 
 
 '' De Manneville v. De ManneviUe, 10 Ves. 52. 
 
 " Ex parte Glover, 4 Dowl. 291. His power and control are not affected by his 
 absence abroad. Be EmUy Suttor, 2F. & F. 267. 
 
 ^ Be Thomas, 22 L. J. Ch. 1075. 
 
 ' Villareal v. Mellish, 2 Swanst. 336 ; S. C. 2 Atk. 14. 
 
 ^ 49 & 50 Vict. c. 27, s. 2. 
 
 " Eyre v. Countess of Shaftesbury, 2 P. Wms. 103. 
 
 '" Beg. V. Nash (Be Carey), 10 Q. B. D. 454. 
 ^' Be Darcys (Infants), 1 1 Ir. G. L. 298. 
 
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CHAP. II.] DIFPERENT KINDS OF GUAEDIANS. 589 
 
 custody she had delivered it, and if her choice of a home would 
 be beneficial to the interests of the child, the Court will order it 
 to be delivered up in order that it may go to such new home ;^ 
 but this right of the mother is not absolute,^ like that of a father 
 of a legitimate child. ^ 
 
 The office of natural guardian lasted until the child attained 
 majority, while the guardianship for nurture terminated on the 
 infant reaching fourteen.'' The natural guardian was concerned 
 only with the person of the infant, and could not intermeddle 
 with its property.^ Though a parent is guardian of the child's Parent qmsi- 
 property at common law, and must account to him for the rents property until 
 and profits of it as a bailiff,^ he is only a qiutsi-gn&vd^.axi until he ^p^^JJ^'q ^"l 
 has been appointed by the Court, in which case he gives security, 
 ■and is altogether under the control of the Court, as any other 
 •guardian of the estate would be." 
 
 (&) Guardians iy 4 & ^ Ph. & M. c. 8. — -This statute, which Guardians by 
 -was repealed by 9 Geo. IV. c. 31, which in its turn was repealed '^^''■*^'°'^' 
 by 24 & 25 Vict. c. 100, survives in the 55th section of the Age of abduo- 
 latter Act, which is directed against the forcible abduction of ^°" ™?oT ^'^ 
 ^irls under the age of sixteen. The clause is as follows : " Whoso- "■ 10°. s. 55. 
 -ever shall unlawfully take or cause to be taken any unmarried 
 girl, being under the age of sixteen years, out of the possession 
 and against the will of her father or mother, or of any other 
 person having the lawful care or charge of her, shall be guilty of 
 a misdemeanour." Under this section it is not necessary that 
 there should be an intention that the girl should be carnally 
 known. 
 
 Under the Criminal Law Amendment Act, 1885,^ the age of Criminal Law 
 abduction was raised to eighteen ; but in this case to constitute aX^ss?™ 
 the offence she must be abducted with intent that she should be 
 ■unlawfully and carnally known. Under this Act, where a girl 
 under eighteen, not living with her father or mother or other 
 person having the lawful care or charge of her, but is in service, 
 leaves the house of her master and goes ofifwith a man, he cannot 
 be convicted of abduction ; " and it is a question for the jury 
 whether, at the time of the alleged abduction, the girl was in the 
 possession of the person having the lawful charge of her.'" Per- 
 -suasion, inducements, or blandishments proceeding from the 
 .prisoner must operate on the girl's mind to induce her to leave 
 
 1 Beg. Y. Nash, {He Carey) [uhi sup.). 2 Be Vllee, 54 L. T. 286. 
 
 ' Barnardo, v. M'Eugh, {1891] App. Gas. 388. 
 * Harg. n. Co. Litt. 88 h. " Ex parte Bond, 8 L. T. 252. 
 
 « Wall V. Stanwick, 34 Ch. D. 763. 
 
 ' These matters have been pursued in fuller detail elsewhere, Parent and Child, 
 <ohap. iii. ' 48 & 49 Vict. 0. 69, s. 7. 
 
 » Beg. V. Henlcins, 16 Cox, C. C. 257. i" Beg. v. Mace, 50 J. P. 776. 
 
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590 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Defence. 
 
 Statutes passed 
 to punish 
 wrong-doers, 
 and not to 
 extend the 
 time of 
 parental 
 control. 
 
 Boys. 
 
 Guardians in 
 socage. 
 
 Common law 
 guardianship. 
 
 the house of those having the lawful charge of her ; ^ but it is 
 not necessary that the fraud should be practised on the girl 
 herself.^ There is a defence provided by the Act in favour of a 
 person charged with this offence, viz., that he had reasonable 
 cause to believe that the girl was above the age of eighteen; and 
 it is sufficient if, at the moment of taking a girl out of lawful 
 custody, he had reasonable cause to believe that she was of the age 
 of eighteen, though he did not inquire of her age until after he 
 had taken her out of lawful custody, but before the abduction was 
 complete.^ It has been held that the effect of the above statutes 
 has been to extend the right of the father or mother to recover 
 the custody of the person of a female child by habeas corpus or 
 otherwise, to the age of sixteen. But the truer view would seem 
 to be that they were directed rather to the deterrence from the 
 commission of the offence, and the prevention of an irremediable 
 mischief, by the punishment of those who forcibly abducted girls 
 of a tender age, whether for the purpose of marriage or prostitu- 
 tion ; for without the aid of the statute the parental right could 
 be enforced by habeas corpus, though the wrong-doer would escape 
 all punishment for his act. The parents have as much right to 
 the control and custody of their daughter of seventeen (and 
 even up to twenty-one) * as to one of fifteen, and may enforce it 
 by the remedy of habeas corpus, with this qualification, that on 
 arriving at the age of sixteen, the law presumes that she can 
 exercise a discretion whether she shall return to her parents or 
 not,^ but such choice must be a wise one, and in her own interests." 
 
 In the case of boys, the age at which the law presumes they 
 can exercise a discretion as to whether they shall return to their 
 parents' control or not has been put at fourteen ' ; but in their 
 case also, it is submitted, their choice must be wisely made. The 
 Divorce Court has jurisdiction to regulate the custody of children 
 until they attain majority.* 
 
 c. Guardians in Socage. — This was once an important species of 
 
 guardianship, but owing to the more extended supervision of the 
 
 Court of Chancery over the persons and fortunes of infants, it 
 
 has fallen into disuse. It is a common law guardianship, and it 
 
 can only arise in the case of a legal and not merely equitable 
 
 estate,' and where the infant under the age of fourteen takes the 
 
 1 Beg. V. EenUns, i6 Cox, C. C. 257. ^ Beg. v. Bellis, 62 L. J. M. C. 155. 
 
 3 Beg. V. Packer, 16 Cox, C. C. 57. 
 
 ^ See Be Agar -Ellis, Agar-Mlis t. Laacelles, 24 Ch. D. 317. 
 5 Beg. ». Awes, 30 L. J. M. C. 47 ; S. C. 3 L. T. /167. 
 « Beg. V. Clarke, 26 L. J. Q. B. 169. 
 ' See ante, Part II. , Parent and Child, chap. ii. p. 492. 
 8 Thomasset y. Thomasset, [1894] P. 295. 
 
 ° Bex v. Toddington, i B. & Aid. 560. Nor, it would seem, when the interest is 
 only reversionary. Mncph. Inf. 20. 
 
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CHAP. II.] DIFFERENT KINDS OF GUARDIANS. 591 
 
 land by descent.' The duty of the guardian was to instruct the 
 ward in the art of agriculture, and to insure the safety of his 
 person and land, and the guardian could not dispose of his 
 interest by alienation, succession, or devise.^ In order to secure To whom 
 this safety of the ward's person and lands, the guardianship in belongs!'^ '^ 
 socage falls to the lot of the next of blood to whom the inherit- 
 ance cannot descend ' ; thus, if the lands descend on the paternal 
 side, the nearest relation by blood on the mother's side will be 
 the guardian in socage. Blackstone * gives as a reason for this 
 choice that " the law judges it improper to trust the person of an 
 infant in his hands who may by possibility become heir to him, 
 that there may be no temptation, nor even suspicion of tempta- 
 tion, for him to abuse his trust," and adopts the language of Ooke 
 and Fortescue that the opposite theory of the Roman law was 
 " quasi agnum committere lupo, ad devorandum." 
 
 It is the duty of the guardian to take possession of the heir's Duties of 
 person, and of the lands and tenements which he has by descent, snardian. 
 and also hereditaments not lying in tenure, as rent-charges, rents- 
 seek, common of pasture, and the like ; also to receive the rents 
 and profits for the heir until the latter reaches the age of fourteen, 
 to keep his evidences of title safely, and to bring him up well.* 
 He is also bound to do all the services incident to the land on 
 behalf of the infant, as to repair a bridge, if the land is liable 
 to that burden.^ He ought to keep down the interest on incum- 
 brances, though the infant may be entitled in fee.' In order to 
 carry out his duty towards the ward, an actual estate and interest 
 in the land is given to him (though not to his own use), so that 
 a settlement may be gained by residence on the land.* He may powers of th© 
 grant leases in his own name till the ward reaches fourteen f he g""'^'*°- 
 can surrender a lease for a renewal,'" and can practically accept a 
 surrender ; " he may also pay off the principal of a mortgage.''' 
 In virtue of his legal possession of the land, he can grant copy- 
 holds in his own name, and make admittances ; bring actions for 
 trespass or ejectment^ or distrain for damage feasant;'^ but he 
 cannot present to a benefice in right of the ward, for, as he can 
 make no profit out of it, he cannot be accountable in respect of it." 
 
 1 Quadring v. Downs, 2 Mod. 176. 
 
 2 Co. Litt. 88 5 ; Bedell v. Constable, Vaagh. 177. « lUd. 
 * I Com. 461. s Co. Liu. 87 J ; 88 a, 89, 123. 
 
 •> Rex V. Sutton, 3 A. & B. 597. 
 
 ' Sergeson v. 8eahy, 2 Atk. 412 ; S. C. Sergeson v. Cruise, i Ves. Sen. 477. 
 
 ^ Bex V. OaUey, 10 East, 491. 
 
 ' Myre t. Countess of 8hafteshv/ry, 2 P. Wms. 103. 
 1' Mason v. Day, Preo. Cli. 319. 
 ^' Willis V. Whitewood, Bac. Abr. Qard. (Gr.) 
 12 Palmes v. Danhy, Prec. Ch. 127. 
 
 ^^ See Jiex v. Oakley (ubi sup.) ; Bex v. Sutton (ubi sup.). 
 " Co. Litt. 17 6,89 a. 
 
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592 
 
 GUARDIAN AND WARD. 
 
 [PAET III. 
 
 Guardianship 
 ends when 
 ward attains 
 fourteen. 
 
 This kind of guardianship ends when the infant reaches the 
 age of fourteen, or the guardian has been superseded by some 
 other guardian, and at the close of his office the guardian must 
 give an account of his trust,' and for this reason an infant cannot 
 be guardian in socage.^ " The power of a guardian in socage is 
 gone by the taking of a husband by the infant, yet they shall 
 have account against the guardian if he continue after." ' 
 
 Guardians by 
 custom. 
 
 Guardianship 
 by the custom 
 of the City of 
 London. 
 Of freemen's 
 children only. 
 
 Consent' of 
 Court neces- 
 sary to marri- 
 age of ■■ ard. 
 
 (2) Gicardians hy Custom. 
 
 The various special kinds of customary guardianships have 
 either been abrogated by statute, or have fallen into disuse, or are 
 but very rarely put in force, because the wider and more effectual 
 guardianship of the Court of Chancery, or by the will of the 
 infant's father, has taken their place. There are three kinds, 
 which it is necessary shortly to describe. 
 
 a. Guardianship hy the Custom of the City of London. — The right 
 of the Mayor and Alderman of the City of London to the guardian- 
 ship of orphans, though still authorized by law, is fallen into com- 
 parative desuetude. When any man or woman free of the City 
 of London dies leaving children within age, by the custom of 
 London, the Mayor and Aldermen, in their Court of Orphans, have 
 the custody of the persons, lands, and chattels of such orphans ; 
 in the case of males, till the age of twenty-one ; in the case of 
 females, till eighteen or marriage. After the death of a freeman, 
 the Mayor and Aldermen may summon his widow or executor to 
 appear at their Court, and give security to exhibit an inventory 
 of his estate. The Chamberlain of London is by custom a cor- 
 poration sole for this special purpose, and is able to take a bond 
 or recognizance to him and his successors.'' The Court of Orphans 
 may exercise the guardianship itself, or may commit it to any 
 other person.* It would seem that the guardianship extends to 
 lands lying out of London belonging to infants who are City 
 orphans," although the custom of London does not affect the suc- 
 cession to real estate.' The consent of the Court ought to be ob- 
 tained before the marriage of any City orphan, during the guardian- 
 ship, and the licence is usually accompanied by a reference to the 
 Common Serjeant to approve of a settlement on the marriage.' 
 The Court of Orphans or their committee may have a writ of 
 
 1 Co. Litt. 88 h. ^ See OHoa- v. Woodroffe, 4 M. & "W. 650, and Co. Litt. 88 h 
 
 3 Pitz. Nat. Brev. 118 B. SiO 11 a'l v. Stanwiclc, 34 Ch. D. 763. 
 
 4 4 Eep. 64 b. " Wilkinson v. Ililes, 1 Sid. 250. 
 
 6 Jiid. ' S' LaUngton v. Oreenwood, I P. "Wms. 531. 
 
 ^ Frederick v. Frederick, i V. Wms. 710. 
 
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CHAP. II.J DIFFERENT KINDS OF GUARDIANS. 593 
 
 ravishment of ward ; and if any one takes an orphan out of their 
 custody, he may be imprisoned till he produces the infant or is 
 delivered by due course of law ; and there is no privilege of peerage 
 in such a case.' 
 
 b. If a tenant in gavelkind dies, leaving his heir or heirs Guardianship 
 within the age of fifteen, the next of blood, to whom the inherit- ofgaveikLar 
 ance cannot descend, shall (by the appointment of the lord, if 
 there be several in equal degree of kindred) have the custody of 
 the body, lands, and goods of such infant heir until he attains 
 that age, which is still the full age by the custom of Kent. The 
 lord can take nothing by the appointment, nor could he at any 
 time tender marriage to the heir. When the heir arrives at the 
 age of fifteen, he may claim his lands and goods with the im- 
 provements ; he has the common law action of account against his 
 guardian ; ^ or where the guardian has been appointed by the 
 lord, the heir may come to the lord's Court and demand his 
 inheritance and the mesne profits of the land ; and the lord must 
 cause his land to be delivered to him, and distrain the guardian 
 to yield his account. The guardian should be charged and have 
 allowances as guardian in socage at common law ; and if he be 
 found in arrear, the lord must levy of him the arrears by distress. 
 This custom of compelling an account by distress extends to him 
 who is actually guardian, whether by right or not. But if the 
 guardian to whom the lord has committed the custody is insol- 
 vent, the lord or his heirs are chargeable with the deficiency ; 
 and therefore, in practice, the lord seldom interferes, but guardian- 
 ship takes place as guardianship in socage does at common law, 
 except that it lasts till fifteen, and extends to personal estate.^ 
 
 c. If a copyholder dies, leaving his heir within the age at Guardianship 
 which, by the custom of the manor, he is to be out of ward, then, o^the manor, 
 unless there be a special custom to the contrary, the lord is 
 obliged to admit the infant by the next of kin to whom the land 
 cannot descend, who is thereupon constituted guardian. The 
 rules of succession within manors usually correspond with the 
 general law of inheritance ; and, therefore, this next of kin is 
 commonly the same person who would be guardian in socage.^ 
 If the infant have lands in socage and the rules of descent in the 
 manor differ from those at common law, the two guardianships 
 will not be united in the same person ; and in that case the 
 guardian in socage is entitled to the custody of the person, the 
 lord's right being merely to have some one to perform the ser- 
 vices in respect of the copyhold or customary lands. In some 
 
 1 Macph. Inf. 51. 
 
 2 But Bee post, chap. vii. The common law action of account has dropped out of use. 
 
 3 Macph. Inf. 45. * Ibid. 
 
 2 P 
 
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594 GUARDIAN AND WARD. [part hi. 
 
 manors there is a special custom for the lord to appoint a guar- 
 dian, but this custom must be proved, as the lord cannot have it 
 Special custom in the absence of special custom.' Where this special custom 
 
 for the lord to ... , -^ . -,■ . 
 
 appoint a exists, the lather cannot appoint a guardian in respect to those 
 be proved""'' ^^nds under the statute of 12 Car. II. c. 24.^ But where there 
 is no such special custom, the father, it has been contended, may 
 validly appoint a guardian under the statute ' ; and there does 
 not seem to be any reason why, even in the event of a special 
 custom, he should not be able to appoint a guardian of the per- 
 son though he cannot affect the copyhold property.* This would 
 apply equally to the mother under the Guardianship of Infants 
 Act, 1886. 
 Admittance of The old law as to the time and manner of admitting euardians 
 
 miant copy- .,-, ■, i ■,,. n ■ 
 
 holder. to copyhold land on behalf of infants, as to the recovery of fines 
 
 from infants, and as to the forfeiture of their estates, was 
 complicated and vexatious. It was greatly improved by the 
 statute 9 Geo. I. c. 29 ; that statute was in turn repealed by 
 II Geo. IV. II Geo. IV. and i Wm. IV. c. 65 ; of which the following are 
 €."65! ""' ^^' ^^^ chief provisions : — Where any person under the age of 
 twenty-one years is or shall be entitled by descent or surrender 
 to the use of a last will, or otherwise to be admitted tenant of 
 any copyhold lands, such person may appear and be admitted by 
 his guardian or attorney.* An infant may by writing under his 
 hand and seal appoint an attorney for this purpose.^ In default 
 of appearance the lord may, after three Courts have been held 
 and proclamations made, at a subsequent Court appoint a fit 
 person to be attorney, and admit the infant by him, and upon 
 such admittance set and impose the proper fine." Upon every 
 such admittance of an infant the fine may be demanded by the 
 bailiff or agent of the lord by a note in writing, signed by the 
 lord of the manor or his steward, to be left with the guardian of 
 the infant, or with the infant if he have no guardian, or with the 
 tenant or occupier of the land to which the infant has been 
 admitted ; and if the fine be not paid or tendered to the lord or 
 his steward within three months after such demand made, the 
 lord may enter and receive the profits until he is paid the fine 
 and costs, though the infant die before the fine and costs are 
 paid ; but the lord must account yearly for the profits, and pay 
 the surplus, if any, to the person entitled to the same.' When 
 the fine and costs have been fully paid, the lord must deliver up 
 
 1 Drury v. Fitch^ Hutt. 17. ^ Church v Oudmore, Lutw. 1187. 
 
 3 See 2 Watk. Copy. 104, 105. 
 
 ^ Ihid, For further particulars of this subject, see Watkins and Scriven on Copy- 
 liolds. " Sect. 3. « Sect. 4. 
 
 7 Sect. S. 8 Sect. 6. 
 
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CHAP. ii.J DIFFERENT KINDS OF GUARDIANS. 695 
 
 possession.^ If the guardian pays the fine he may enter and 
 take the profits until he is reimbursed, notwithstanding the 
 death of the infant before he is reimbursed.^ No forfeiture is to 
 be incurred by an infant for not appearing or neglecting to pay 
 fines.* 
 
 It is the infant who is admitted by the guardian, not the Duties and 
 guardian himself ; though the guardian has an interest in the ^J^rrdian as * 
 land, and not merely an authority. He has the same powers as [^f^^°'^ *'^® 
 a guardian in socage.* He has a double duty to perform, 
 towards the infant and towards the lord. As regards the former, 
 he must manage and cultivate the land to the. best advantage, 
 and may make such leases as are warranted by the custom, so 
 that they do not exceed the minority of the ward ; and he may 
 bring an action for arrears of rent. If the ward be taken out of 
 his custody, he can take steps to recover him. 
 
 As regards the lord, he is to render such services as a copy- As respects 
 holder can render for another. He must pay the rent, and per- ^ °^ ' 
 form all such manorial rights as are extant. But he cannot 
 swear fealty for his ward, or do any service in Court on his 
 behalf, for such service must be a personal one.' 
 
 If a guardian of a copyholder commits waste, his wardship 
 only and not land is forfeited ; for the infant is not answerable 
 for the acts of his guardian who is assigned to him by law." 
 
 The guardian of an infant lord or tenant has power to do Copyhold Act, 
 on his behalf any act or thing required by the Copyhold Acts '^^'*' 
 to be done by such infant.' 
 
 (3) Guardians by Special Ajppointment. 
 
 a. Testamentary Guardians, or Statute Guardians under 1 2 Car. Testamentary 
 II. c. 24. — This species of guardianship is modelled on that in guardians 
 socage, and sprung directly from the abolition of military tenures, ™der 12 Car. 
 and the conversion of the tenure of almost all lands into socage 49 & 50 Vict. 
 by 12 Car. II. c. 24. To supply the loss thus created of the"'^^' 
 feudal protection of infants (such as it was), provisions vere 
 framed in the Act to enable fathers to appoint guardians, who 
 are often called " testamentary," because the power to appoint 
 them by will was first given by this statute. By section 8 it 
 was enacted that "where any person hath or shall have any 
 child or children under the age of twenty-one years, and not 
 
 ' Sect. 7. 2 Sect. 8. ^ ggct. 9. 
 
 * For the powers of a guardian in socage, see ante, p. 591. 
 " Simp. Inf. 230, and the authorities there cited. 
 « Macph. Inf. 46. ' 57 & S8 Vict. c. 46, s. 45. 
 
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506 GUAEDIAN AND WARD. , [paet hi. 
 
 married at the time of his death, it shall and may be lawful to 
 and for the father of such child or children, whether born at the 
 time of the decease of the father, or at that time en ventre so, 
 m&re, or whether the father be within the age of twenty-one 
 years, or of full age, or by deed executed in his lifetime, or by 
 his last will and testament in writing, in the presence of two or 
 more credible witnesses, in such manner and from time to time 
 as he shall respectively think fit, to dispose of the custody and 
 tuition of such child or children, for and during such time as he 
 or they shall respectively remain under the age of one-and-twenty 
 years, or any lesser time, to any person or persons in possession or 
 remainder, other than Popish recusants, and that such disposition 
 of the custody of such child or children made since the 24th day 
 of February 1645, or hereafter to be made, shall be good and 
 effectual against all and every person and persons claiming the 
 custody or tuition of such child or children, as guardians in 
 Guardian may socage or otherwise ; and that such person or persons to whom 
 ^tioBTS *^® custody of such child or children hath been or shall be so 
 ravishment of disposed of or devised as aforesaid, shall and may maintain an 
 action of ravishment of ward or trespass against any person or 
 persons which shall wrongfully take away or detain such child or 
 children, for the recovery of such child or children, and shall and 
 may recover damages for the same, in the said action, for the use 
 and benefit of such child or children." Section 9 enacted that 
 " such person or persons to whom the custody of such child or 
 children hath been or shall be so disposed or devised shall and 
 may take into his or their custody, to the use of such child or 
 children, the profits of all lands, tenements, and hereditaments 
 of such child or children, and also the custody, tuition, and 
 management of the goods, chattels, and personal estate of such 
 child or children till their respective age of one-and-twenty years 
 or any lesser time, according to such disposition aforesaid, and 
 may bring such action or actions in relation thereunto as by law 
 a guardian in common socage might do." 
 Father alone By force of this Statute a father only could appoint a guardian 
 
 could appoint, j.^^, j^-^ ^^^^^^ ^.j^-j^ ^^ ^^^ jf ^^^ f^^^j^gj ^g ^^ ^f^^^ l^iu^. 
 
 self he can appoint a guardian only by deed, for by the Wills 
 Act * an infant is disqualified from making a valid will. This 
 deed is in the nature of a testamentary disposition, and may be 
 revoked by a subsequent will." A grandfather cannot make a 
 valid appointment under this statute ; ' nor a mere stranger by 
 
 ' I Vict. c. 26, s. 7. 
 
 ~ Earl of Shaftesbury v. Hannam, Finch, 323 ; see Ex parte Earl of Ilchester, 
 7 Ves. 348. 
 
 * Blalce V. Leigh, Amb. 306. 
 
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CHAP, ii.J DIFFERENT KINDS OF GUARDIANS. 597 
 
 blood;' nor a guardian already appointed." A mother had not 
 
 the power to appoint a testamentary guardian ; ^ but the Court 
 
 did have regard to the expression of her wishes if they were 
 
 found to coincide with those of the father j" she might have Mother may be 
 
 been, however, appointed to the office. Her guardianship by 
 
 nature and nurture was superseded by her husband's appointment 
 
 of a testamentary guardian. If the father made an ineffectual Mother natural 
 
 appointment,'' or no appointment at all, she was the natural defauit^of"^ 
 
 guardian of her infant children ;" and she was not disqualified appointment. 
 
 merely because of her subsequent marriage.' 
 
 But under the Guardianship of Infants Act, 1886,^ this Mother may 
 disability on her part to appoint a testamentary guardian is guardian under 
 removed, and she has the power to appoint by deed or will Guardianship 
 guardians to her infant children who are unmarried ; and such Act, 1886. 
 guardianship will take effect after the death of herself and her 
 husband.^ She may also provisionally nominate a guardian to 
 act as guardian of her infant children after her death jointly 
 with the father.'" This provisional appointment should be in Provisional 
 form an appointment of a guardian to act jointly with the ^ppo''^*'"''"*- 
 father." If after the mother's death the father is found unfitted 
 to be the sole guardian of his children, this provisional appoint- 
 ment may be confirmed by the Court, who may displace the 
 father altogether.'^ Both parents may appoint guardians, and 
 such shall act jointly." 
 
 Testamentary guardians derive their authority from the parental Whence 
 appointment, and do not require any further qualification, even guardian ° 
 probate of the will appointing them.'* But if there is any dis- derived, 
 pute as to the validity of the appointment, the Court may direct 
 the issue to be tried by a jury.'° A parol appointment is in- What is a 
 sufficient,'^ but no particular form of words, if reduced into appointment. 
 writing, is necessary for the appointment of a testamentary 
 guardian, provided the intention to create a guardianship is clear 
 
 1 Powell V. Cleaver, 2 Bro. C. 0. 500. " Macph. Inf. 83. 
 
 3 Exparte Edwards, 3 Atk. 519. '' Be Kaye, L. R. i Ch. App. 387. 
 
 ^ Be Moore, 11 Ir. C. L. i. 
 
 « Beg. V. Clarke, 7 El. & Bl. 186 ; S. C. Be Bace, 26 L. J. Q. B. 169. 
 
 ' Corhett v. Tottenham, i Ba. & B. 59. The usual practice in the event of lier 
 subsequent marriage was to direct a reference under whicli she might be reappointed, if 
 it were for the benefit of the infant. Be Oornall, i Beav. 347. 
 
 8 49 & 50 Vict. c. 27. » Sect. 3 (i). 1" Sect. 3 (2). 
 
 '1 Be G. {an Infant), [1892] i Ch. 292. 
 
 12 Be G. {uU sup.). 13 gect. 3 (i). 
 
 " GiUiat v, QiUiat and Hatfield, 3 Phil. Eocl. 222. 
 15 Be Andrews, L. E. 8 Q. B. 153 ; S. C. 42 L. J. Q. B. 99. 
 ' 1^ Be Moore {ubi sup.) ; Be Mathev-s, 12 Ir. C. L. 233. From one report of the 
 case oi Lady Teynham, v. Lennard (9 Mod. 40), it would appear that a parol appoint- 
 ment would sufSce ; but from other reports of the same case, 4 Bro. C. C. 302, cited in 
 2 Atk. 315, au'l Barn. Ch. 140, it is very doubtful whether the case did so decide ; if it 
 did, its decision is no longer law. 
 
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598 GUARDIAN AND WAED. [paet in. 
 
 and the powers essential to the ofSce are conferred.' Thus, the 
 words, " I request Miss M., if she be alive at my decease, to take 
 upon herself the management and care of the house and of my 
 children," have been held enough ;^ but a devise of the lands to a 
 person in trust for the infant, and for his maintenance and 
 education till he be of age,^ or an appointment of a person to be 
 "guardian of the estate,"^ do not constitute the trustee or the 
 guardian of the estate a testamentary guardian. An instrument de- 
 signating a person as guardian need not be executed with the same 
 formality as a will, and an appointment of a guardian by an 
 unattested will, made good by a duly attested codicil, on the 
 same paper, and referring to the will as annexed, and making 
 certain alterations in it, but confirming it in other respects, was 
 held good.* An appointment by deed is only a testamentary 
 instrument in the form of a deed,' and may be revoked by a 
 subsequent will.' A testamentary guardian will not be disabled 
 from exercising the office because he has attested the execution 
 of the deed by which he was appointed,^ nor, it would seem, 
 because of his attestation of the will so appointing him. Under 
 the Act of Charles II., and the Guardianship of Infants Act, 1886, 
 the parents have the power to nominate guardians for all their 
 unmarried children at their decease, who have not attained, and 
 until they do attain, twenty-one years of age. A child en ventre 
 Guardiaa sa mere is considered as one already bom." This power of 
 appointed to appointing does not extend to children who have attained their 
 tTOnty^one or majority,'" or to bastards." The guardianship may be determined 
 bastards. before the child reaches its majority, but the creation of a 
 guardianship without any time fixed would in all probability be 
 held to be wardship during minority.'^ Though the parents 
 cannot under the Act appoint guardians for their infant children 
 who have married, yet their marriage during infancy will not- 
 determine their wardship, at least in the case of males ; '' in the 
 case of females, there is more room for doubt. On the one hand, 
 
 1 Bridges v. Hales, Mos. 108 ; Miller v. Harris, 14 Sim. S40 ; but see Bedell v. 
 Constable, Vangh, 177 ; Be Lord Norhury, 9 Ir. Eq. 134. 
 
 2 Miller v. Harris (uhi sup.). * BedeU v. Constable (ubi sujp.). 
 
 * Be Lord Norhury (uhi sup.]. ^ LeBathev. Lord Fingall, 16 Yes. 167. 
 
 I" Ex parte Earl of llcliester, 7 Ves. 348. 
 ' Earl of Shafteshury v. Hannam, Finoh, 323. 
 
 8 Morgan v. Hatchetl, 24 L. J. Ch. 135. " 12 Car. 11., 0. 24, s. 8. 
 
 1° Ex parte Ludlow, 2 P. Wms. 638. 
 
 " Sleeman v. Wilson, L. E. 13 Eq. 36. See the Scotch case ot Brandy. Sliaws (16 
 Ct. of Sees. Gas. 315), decided under the Guardianship of Infants Act, 1886. But see 
 Be Vllee, 54 L. T. 286, as to when a father may appoint guardians to his children who 
 are not legitimate by English law. This later case was decided before the Guardianship 
 of Infants Act, 1886, but its principle would remain unaffected by that Act. 
 ^^ Mendes v. Mendes, i Ves. Sen. 91. 
 13 Eyre v. Countess of Shafteshury, 2 P. Wms. 103. 
 
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CHAP. II.] DIFFERENT KINDS OF GUARDIANS. 599 
 
 it may be urged that a woman on marriage leaves her parents' 
 family, and so passes out of parental control, and comes under the 
 power and protection of her husband ; on the other, it may be 
 said that the parents' strict right of appointing a guardian to 
 watch her interests should not be broken in upon or curtailed by 
 her marriage, contracted, perhaps, for the very purpose of escap- 
 ing the wholesome but irksome restraint. The Court of Chancery 
 will not permit the marriage of one of its wards to end its ward- 
 ship,' and so, by analogy, the natural and obvious right of a 
 parent to protect the child will be preserved intact, until she has 
 reached the age at which the law sets her free from control, and 
 endues her with the fullest responsibility for her actions. 
 
 The parents may appoint a guardian conditionally;^ or, "inOfacenot 
 possession or remainder," that is, may appoint successors in the "^^'S" 
 guardianship. They may also appoint a testamentary guardian, 
 and yet recommend that their children may be placed under the 
 care and control of other persons, subject to the general control of 
 the guardian.^ The office of a guardian is personal and not 
 assignable ;* therefore where more than one testamentary guardian 
 is appointed, the office goes to the survivor ; but the parent may 
 authorize the surviving guardian to nominate another in the place 
 of the guardian who has died.' A joint testamentary guardian 
 who has declined to accept the trust is not entitled as of right 
 after the death of his co-guardian to be appointed guardian by 
 the Court. ° The Court of Chancery will not recognise the appoint- 
 ment of a firm as guardians.' 
 
 In former times a father of any religious persuasion might Who may be 
 exercise his right of appointing a guardian,^ but the person *PP°™'^ • 
 appointed must not have been a Roman Catholic' But since Particular 
 religious disabilities have almost totally disappeared both in Eng- nVto,r"o *' 
 land and Ireland, members of the Church of Eome are no longer appomtment. 
 ineligible for the office of tutor.'" Members of other religious 
 bodies not in conformity with the Church of England have 
 always been eligible. Accordingly a Jew," and now Roman 
 Catholic ecclesiastics in England,'^ and in Ireland, ''or a Dissenter,'* 
 may be appointed. 
 
 ^ Boach V. O-arvan, I Ves. Sen. i6o. 
 
 = Selhy V. Sidhy, 2 Eq. Gas, Abr. 488. ' Knott v. CoUee, 2 Ph. 192. 
 
 * Eyre v. Countess of Shaftesbury (ubi swp.) ; Mellish v. Da Costa, 2 Atk. 14. 
 
 ^ In the Goods of Parnell, L. B. 2 P. & D. 379. 
 
 ^ Be Johnstons (Infants), 2 Jo. & Lat. 222. 
 
 '■ De Mazar v. Pybus, 4 Ves. 644. 
 
 " ViUarealv. Mellish, 3 Swanst. 538. ' 12 Car. II. 0. 24, s. 8. 
 
 1" In England by the Eoman Catholic Emancipation Act, 10 Geo, IV. c. 7 ; in Ireland 
 ty 33 Geo. ni. c. 21. li Villa/real v. Mellish {ubi sup.). 
 
 '2 Talbot V. EaH of Shrewsbury, 4 Myl. & Cv. 673. 
 13 Be Byrnes, 21 W. E. 794. " Corbett v. Tottenham, i Ba. & B. 59. 
 
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600 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 GuardianB of 
 person and 
 estate. 
 
 Guardianship 
 of Infants 
 Act, 1886. 
 
 Powers as to 
 real estate of 
 ward same as 
 those of a 
 guardian in 
 socage. 
 
 Testamentary guardians are entitled to the custody of the 
 ward's person and property as against guardians in socage (if 
 any), but not now against the mother;' though if she be one 
 with other testamentary guardians, while her wishes and opinions 
 may be respected, yet in authority she is on an equality with the 
 rest.^ If the mother under the Guardianship of Infants Act, 
 1886,^ has provisionally appointed a guardian to act with the 
 father, and the Court after her death is satisfied that he is not 
 a person who ought to be the sole guardian of his children, the 
 guardian whose appointment is confirmed by the Court would 
 have equal rights with the father.^ When the guardians are 
 unable to agree upon any question affecting the welfare of an 
 infant ward, any of them may apply to the Court for its direction.'* 
 After the death of both parents any guardian appointed under 
 this Act may apply to the Court for directions as to the custody 
 of his ward.° But a person nominated by will guardian of the 
 estate of an infant during minority is not such a testamentary 
 guardian as to deprive the mother of the control and custody of 
 the infant.' As against all persons the guardian has the same 
 remedies, as, for instance, the writ of habeas corpiis, as the father 
 had.' If there be two testamentary guardians, and one takes the 
 infant out of the custody of the other, the latter has no remedy 
 at law but to take the infant out of the possession of the other 
 at his opportunity f but if an infant be in the service of one of 
 the guardians, or of a third person with the consent of one of 
 the guardians, he cannot lawfully be removed from his service."" 
 
 The testamentary guardian has the same power over the real 
 estate of the ward as the guardian in socage." Under the 
 Guardianship Act, 1886, every guardian in England and Ireland 
 has all such powers over the estate and the person, or over the 
 estate (as the case may be) of an infant as any guardian appointed 
 by will or otherwise now has in England under 12 Car. II. c. 24, 
 or in Ireland under 14 & 15 Car. II. c. 19, or otherwise." A 
 testamentary guardian is entitled to administration in preference 
 to a guardian chosen by an infant.'^ 
 
 A testamentary guardianship is a trust ; and therefore the 
 Statute of Limitations does not run against the ward in the 
 matter of accounts," but if on attaining majority he acquiesces 
 
 1 Eyre v. Countess of Shrewshvry, 2 P. Wms. 103. 
 
 2 Campbell v. Mcuskay, 2 Myl. & Or. 31. 
 
 3 49 & so Vict. 0. 27. ^ Sect. 3 (2). ^ Sect. 3 (3). 
 6 Sect. 5. '' Be Lord Norhury, Ir. E. 9 Eq. 134. 
 
 8 Bialer v. Freeman, Amt. 302 ; Be Andrews, 8 L. R. Q. B. 153 ; S. C. 4? I'- J- 
 Q. B. 99. ^ Litt. 3. 323. " Gilbert v. Schwench, 14 M. & W. 488. 
 
 ' " Bedell v. Constable, Vaiigh. 177. '^ 49 & 5° Vict. 0. 27, s. 4. 
 
 '3 Jn the Goods of Morris, 31 L. J. P. M. & A, 80. 
 " Matltew T. Brise, 14 Beav. 341. 
 
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CHAP, ii.j DIFFERENT KINDS OF GUARDIANS. 601 
 
 in them, he will be barred.' The cases applicable to guardians 
 appointed by the father would now be applicable to those appointed 
 by the mother.^ 
 
 h, Chiardians by Election of Infant. — It would be of no practical Guardianship 
 usefulness to treat of this kind of guardianship except in the j^aDt." 
 briefest possible manner; for the power of the Court of Chancery 
 has quite if not altogether superseded it. This right of an infaut 
 to choose a guardian for himself does not ever seem to have been 
 frequently exercised. An infant tenant in socage who has no 
 testamentary guardian, may at the age of fourteen, when socage 
 guardianship determines, choose a guardian for the rest of his 
 minority.' An infant who was without a testamentary guardian, 
 and had no socage, lands, or whose interest in them was merely 
 equitable, might, it seems, appoint such a guardian either before 
 or after fourteen, but not before seven years of age."* 
 
 The election might take place before a judge on circuit,^ or, as 
 was most usual, by deed,* or even by parol ; ' but the appoint- 
 ment will not supersede the duty and authority of the Court of 
 Chancery, which may appoint another.' 
 
 c. Guardians appointed by a Court of Competent Jurisdiction. 
 
 i. By Court of Probate, or Guardians durante minore ajtate. — AdminieUa- 
 Administration durante minore cetate is the sole relic of the power mtnort cetate. 
 of the old spiritual Courts of appointing a curator to an infant's 
 personal estate, and is exercised by the Probate Division of the 
 High Court of Justice, the successor to the ecclesiastical Courts." 
 
 When an infant is left sole executor under a will, or is the When granted. 
 next of kin to whom letters of administration ought properly to 
 be granted, the Court will grant administration to a person on his 
 behalf, who for the purposes of the administration suit will be 
 deemed the guardian of the infant.^" The Court draws a dis- Distinction 
 
 ...... • /. , T 1 • 1 betweeu infant 
 
 tmction between an intant under seven, and a minor, or one who and minor. 
 
 is over seven, but has not yet reached majority, for the Court will 
 
 ex officio assign a guardian to the former," while the minor will 
 
 be allowed to choose his own guardian.'^ The choice of this Choice of 
 
 -,. . ..,-,. • e 1 m -I ^ i-i- guardian in tlie 
 
 guardian is quite in the discretion oi the Uourt^ and though it is discretion of 
 
 the Court. 
 ' Sleeman v. Wilson, L. E, 13 Eq. 36 ; see post, pp. 703 et seq. 
 2 49 & 50 Vict. c. 27. 3 Co. Litt. 78 5; Mendes v. Mendes, 1 Ves. Sen. 91. 
 
 * Co. Lilt. 87 h, 88 a. ^ Anon, 2 Ves. Sen. 274. 
 
 * Lord Baltimore's Case, Harg. re. i J to Co. Litt. 88 h. 
 ' Ihid. ' Ex parte Wathins, 2 Ves. 470. 
 
 ^ Brotherton v. Harris, 2 Cas. temp. Lee, 131. 
 ^^ This species of administration is styled "limited administration," as it is confined 
 to a particular extent of time. 
 
 " I Wms. Exors. 418. '^ Bichv. Chamherlayne, 1 Gas. temp. Lee, 134. 
 
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602 
 
 GUAEDIAN AND WARD. 
 
 fPAET III. 
 
 Powers of the 
 administrator 
 durante minore 
 CBtate. 
 
 Guardianship 
 by the Conrt 
 of Chancery. 
 Origin. 
 
 the ordinary practice to appoint the next of kin, the Court is not 
 bound to choose from their number ; ' and if the infant make an 
 unsatisfactory election, it will be controlled and set right.^ This 
 administration lasts till the infant reaches the age of twenty-one ;* 
 but ends, if there are several infants, on the eldest attaining 
 majority.'' 
 
 An administrator during the minority of one entitled to ad- 
 ministration, has, for the time, all the power and authority of an 
 absolute administrator ; * thus, he may bring actions to recover 
 debts due to the deceased,* and also trover for his' goods.' 
 The limit to his administration is the minority of the person, but 
 there is no other limit.^ A power of sale given by a testator to 
 his executors or administrators may be exercised by an adminis- 
 trator durante minore mtaU? He may assent to a legacy, if there 
 are assets for the payment of debts.^" Again, he may receive 
 debts due to the deceased, and he may discharge and acquit 
 them. So he may be sued for the debts due from the deceased ; 
 and if he give his bond for any of such debts, he may retain 
 goods to the value ;'.' and if an action be brought against him, 
 and the administration determine pending the action, he ought 
 to retain assets to satisfy the debt which attached on him by the 
 action.'^ Likewise he may retain for his own debt." '^ 
 
 ii. Guardians appointed hy the Court of Chancery. — This most 
 important species of guardianship traces its origin to the delega- 
 tion to the Court of Chancery of the duty of the Crown as parens 
 patrioe to safeguard the interests of those who could not take care 
 of themselves, more especially infants. The superintendence of 
 the care and custody of infants has for long been one of the most 
 well-defined and fully-developed branches of equity jurisprudence.'* 
 But even this salutary power of the Court of Chancery has its 
 practical limits, for the Court cannot, and does not, take upon 
 itself to maintain and supervise the interests of all the infants in 
 the kingdom, and it has not the means of acting, except where 
 
 "^ Re Burchmore, L. E. 3 P. & D. 139. 
 ^ Bac. Abr. Exors. 133. 
 
 '•)■ 
 
 ' See I Wins. Exors. 418. 
 
 » 38 Geo. III. c. 87, s. 6. 
 
 ^ Com. Dig. Administration, F. 
 
 * PiggoU's Case, 5 Co. Rep. zg a ; Com. Dig. Administration, P. 
 
 ' Sethe V. Sethe, Eoll. Abr. Exors. (M.) pi. 2 ; Com. Dig. \ 
 
 ^ I Wm. Exors. 423. 
 
 ^ Monsell v. Armstrong, L. K. 14 Eq. 423. 
 
 ^^ Prince's Case, 5 Co. Bep. 29 a. " Briers v. Goddard, Hob. 250. 
 
 ^" SparJces v. Crofts, Cumberb. 465. 
 
 '^ Moshelly v.Oodolphin, T. Eaym. 483. 
 
 " Hargrave, the learned editor of Co. Litt., in one of bis notes [n. 16, 88 J), seeks 
 to show that this Chancery jurisdiction over infants was not of very ancient date, and was 
 an usurpation, if a necessary one. Mr. Fonblanque (2 Tr. Eq. 228 n. 5th edit.) controverts 
 his statements, and maintains that it flowed from the general authority of the equity 
 Courts, exercising a necessary superintendence and control over those unable to take 
 care of themselves. See Butler v. Freeman, Amb. 301, 
 
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CHAP. II.] DIFFERENT KINDS OF GUARDIANS. 603 
 
 it has property to act upon ; ' not from any want of jurisdiction, 
 but from a want of means to exercise it, by applying the 
 property for the use and maintenance of the infants.^ But 
 the possession of property does not seem to be a necessary condi- 
 tion precedent to the interference of the Court so as to award 
 custody of the person.' In former times the Court of Exchequer, 
 as an equity Court, was wont to exercise a general power of appoint- 
 ing guardians and ordering maintenance for infants where there 
 was a suit pending for the administration of their property.* 
 
 It is not here intended to inquire into the general subject of 
 wards of Court, which will be discussed lower down^ under the 
 head of " Infants,"* but rather into the powers to appoint guar- 
 dians possessed by the Chancery Division, to which are assigned 
 such questions." The Court of Chancery will appoint guardians Grounds for 
 for infants who have no father or mother or testamentary guar- by^the Court. 
 dians where a suit is pending in which the infants are interested, 
 or upon petition without suit. But (as above mentioned) before 
 the Court will assume jurisdiction, there must be a sum of money 
 settled upon the infant which the Court can administer. Wher- 
 ever the infant is unprotected and unable to take care of itself, 
 or injury or detriment of the infant is apprehended, then the 
 Court will intervene with its protective justice, and appoint a 
 guardian responsible to itself, who will act for the benefit and 
 interest of the ward. 
 
 Guardianshi'p of Infants Act, 1886. — Under the Guardianship Guardianship 
 of Infants Act, 1886, where a father dies without appointing a ^sse. " 
 
 guardian to his infant child, or the guardian appointed by him 
 is dead or refuses to act, the Court may from time to time 
 appoint a guardian or guardians to act jointly with the mother ; ' 
 and it may confirm the provisional appointment of a guardian by 
 a mother to her infant children, on being satisfied that the father 
 is unfitted to be their sole guardian.^ A guardian so appointed 
 shall have the same powers over the estate and the person, or 
 over the estate (as the case may be) of an infant as a testamen- 
 tary guardian previonsly had.' 
 
 A guardian will be appointed on the petition of the infant 
 himself, or of some person on his behalf, though no action has 
 
 ^ Wellesley v. Duke of Beaufort, 2 Euss. i, ig. 
 
 ^ The usual way is to settle money on the infant (some small sum such as ;f 100 is 
 enough), and to bring a suit for its administration. 
 
 2 Be Spence, 2 Ph. 247 ; Re Fynn, 2 De G. & Sm. 487 ; Brown v. Collins, 25 Ch. 
 D. 56 ; ^e Scanlan (Infants), 40 Ch. D. 200 ; Be Nevin, [1891] 2 Oh. 299 ; Barnardo v. 
 M'Bugk, [1891] App. Gas. 395 ; Be M'Grath [Infants), [1893] i Ch. 143. 
 
 '' Macph. Inf. 102, citing Evans v. Massey, I Y. & J. 196, and other cases. 
 
 = Post, Part IV. cHap. v. " 36 & 37 Vict. c. 66. 
 
 '■ 49 & 50 Vict. c. 27, 8. 2. 
 
 8 Be G. (an Infant), [1892] i Ch. 292. s gect. 4. 
 
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604 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 When guar- 
 dian of the 
 person ap- 
 pointed. 
 
 When guar- 
 dian of the 
 person and 
 estate. 
 
 How guardians 
 are appointed. 
 In a summary 
 way by sum- 
 mons at 
 chambers. 
 
 Guardians] 
 officers of the 
 Court. 
 
 Guardian of 
 the person and 
 estate usually 
 appointed 
 without a 
 
 been begun ; ' even where there are testamentary guardians 
 and they decline to act,^ or disagree,^ or where the infant has 
 lawfully appointed a guardian for himself.* Where a suit is 
 pending, a guardian of the person only is appointed, the estate 
 being under the direction of the Court ; but the Court does not 
 take upon itself the actual guardianship of the infant.* Where 
 there is no suit pending which will enable the Court to take 
 upon itself the management of the infant's property, a guardian 
 of the estate as well as of the person may be appointed on 
 summons. The application must be supported by evidence show- 
 ing the nature, rental, or income, or other material particulars of 
 the estate, and also the fitness of the proposed guardian, and his 
 consent to act.° 
 
 Guardians are now appointed in a summary way by an 
 originating summons in chambers, without requiring a bill to be 
 filed ;' formerly filing a petition was the proper method. If no 
 action or matter be pending, an originating summons is taken 
 out in the name of the infant 'pi'o hac - vice, and is instituted in 
 the matter of the infant, and has the efiect of making him a 
 ward of Court.* Guardians so appointed are treated as officers of 
 the Court, and are held responsible to it." Where a guardian is 
 sought to be appointed, evidence must be adduced as to the age 
 of the infant, his fortune and income, and as to the number of 
 his relations. Evidence must also be produced of the fitness of 
 the proposed guardian, and of his willingness to take upon him- 
 self the duties-of the office.'" The usual course is to appoint a 
 guardian of the person and estate, without a receiver, and he is 
 usually required to enter into a recognizance duly to account, 
 with sureties ; the security will be regulated by the amount 
 which the guardian is likely to receive during the currency of his 
 periodical account ; but where the amount of the income or for- 
 tune is very small, the Court may dispense altogether with the 
 security, and will be content with the guardian undertaking 
 to account." The costs of an application to appoint a guardian 
 
 ^ By summons in chambers ; 2 Dan. Ch. Pr. 11 13. See iJe Findlay (an Infant), 
 32 Ch. D. 221. Trustee Acts 1850 and 1853 (13 & 14 Viot. c. 60, o. 2 ; 15 & 16 Vict, 
 c. 55, B. 3). ^ lix parte Champneys, 2 Diclc. 350. 
 
 '^ Lady Teynham v. Lennard, 4 Bro. P. 0. 302. 
 
 * Curtis -7. Rippon. 4 Madd. 462 ; Cdham v. Coham, 13 Sim. 639. 
 
 5 Macph.Inf. loo. ^ Ihid, 105 ; 2 Dan. Ch. Pr. 1120. 
 
 ' Ord. LV. r. 2 (12), also Rules 2 and 3 of the Supreme Court Eules made under the 
 Guardianship of Infants Act, 1886. 
 
 * Stuart V. Marquis of Bute, 9 H. L. Cas. 440. 
 
 " Wellesley v. Duhe of Beaufort, 2 Ruas. i. ^^ Dan. Ch. Pr. 1119. 
 
 j'l Dan. Ch. Pr. 1120. According to the old practice the guardian of the person was 
 
 required to enter into recognizances that the infant should not marry without the leave 
 
 of the Court, but in special circumstances the recognizance was on the condition that the 
 
 infant should not be married without the leave of the Court, by the consent, privity or 
 
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CHAP. ii.J DIFFERENT KINDS OF GUAEDIANS. 605 
 
 will be paid out of tlie infant's property by a sale if necessary ; ' 
 or by allowing them to a guardian in his accounts.'' 
 
 The Court of Chancery has jurisdiction over the custody of Juriadiotion 
 English subjects although born and domiciled out of England, al^cSlT*^ 
 and can appoint guardians for an infant domiciled abroad, in a abroad. 
 proper case, though its property is situated in a foreign country, 
 by the Courts of which guardians for the infant have been ap- 
 pointed ; ^ and also for an infant who is out of the jurisdiction, 
 but whose property is within it or under the control of the 
 Court ; but it is usual to require that the parent or one of the 
 guardians should be within the jurisdiction.* The English nation- 
 ality of the infant must be clearly made out to give the EngHsh 
 Courts jurisdiction.* 
 
 The Court has ample scope for the exercise of its choice of Who may be 
 guardians, and no primA facie claims, however strong, will be 
 allowed to prevail against it if the infant's benefit warrants their 
 supersession. It will, even in the lifetime of the father, for 
 strong reasons, appoint another as guardian to his child ;° it 
 will set aside the claims of the mother if she be unfit.' It will 
 also attach very little importance to guardianship in socage, or 
 the election of the infant, and will set aside a guardian in socage,' 
 or one appointed by the infant himself ; ' so, too, where testa- 
 mentary guardians are unfit for their trust they will be super- 
 seded,'" or removed." 
 
 The Court in choosing guardians will be guided entirely by the 
 interests of the ward ; and though not bound to limit its choice 
 will (cmteris paribus) select the nearest relations.'^ But if the 
 father's wishes, or the infant's manifest advantage are against the 
 appointment, the claims of the mother or nearest relatives will be 
 postponed. So, too, if the mother's wishes and the infant's manifest 
 interests are against the father being left sole guardian, the Court 
 
 connivance of the committee. It appears to be the modern practice not to require a 
 recognizance from the gnardian of the person, unless perhaps there is an apprehension 
 of an improper marriage. Simp. Inf. 249. 
 
 1 Barlow v. Cooke, 5 Ves. 461. ^ Expa/rte Tlwmas, Amb. 146. 
 
 3 Sope V. Hope, 4 De G. M. & G. 328 ; Dawson v. Jay, 3 De G. M. & G. 764 ; Be 
 Willoughhy (an Infant), 30 Ch. D. 324. 
 
 ^ Logan v. Fairlee, Jac. 193 ; Hope v. Hope (uhi sup.) ; Dan. Ch. Pr. 1117, and 
 cases there cited. * Be Bourgoise, 41 Ch. D. 310. 
 
 " Ex parte Mountfort, 15 Ves. 447. Wellesley y. Duke of Beaufort, 2 Kuss. 
 I. Thomas v. Bolerts, 3 De G. & B. 758. Ante, Part II., Parent and Child, 
 chap. ii. 
 
 ' Hey^ham, v. Hey sham, I Cox, Bq. Gas. 179. Before appointing the mother sole 
 guardian it was usual to inform the members of the father's family. 
 
 8 Hunter v. Macrae, cited Macph. Inf. 112. 
 
 ' OvHis V. Bippon (uhi svp. ) ; Coham v. Cdham (uhi sup. ) 
 1° Beattie v. Johnstone, 10 CI. & P. 42. 
 ^1 49 and 50 Vict. c. 27, ss. 6, 13. 
 
 12 Beattie v. Johnstone (uhi sup.) ; Simp. Inf. 246, and the oases there cited ; 
 Hunter v. Macrae (uhi sup.) ; Darcy v. Lord Holderness, 1 P. Wms. 704 n. 
 
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606 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Guardian 
 appointed to i 
 bastard child. 
 
 Marriage of 
 female guar- 
 dian deter- 
 mines the 
 office. 
 
 No surTivor- 
 ship among 
 
 has jurisdiction to appoint other guardians with him.' The Court 
 will pay regard to the wishes of the father, whose intended 
 appointment has miscarried through some informality, and appoint 
 the individual so nominated without a reference.'' The Court 
 formerly regarded the wishes of the mother as deserving of atten- 
 tion, though she could not, like the father, make any valid 
 appointment ' ; but will now give effect to her rights under the 
 Guardianship of Infants Act, 1886, though such rights have 
 been informally expressed by her.^ Eegard will also be paid to 
 the wishes of an infant who being of years of discretion has 
 chosen a guardian for himself, who, if a proper person, will 
 either be appointed alone,* or in conjunction with others.* 
 
 Though a testator cannot by will lawfully appoint any one to 
 be the guardian of his bastard child,' yet the Court may, with- 
 out reference, grant the guardianship of the infant to the person 
 so nominated.* A father of a bastard will not as a rule be 
 appointed its guardian unless he settles property on it ; but in 
 one case the Court on the death of the mother did appoint the 
 father as guardian of his illegitimate child, for whom he evinced 
 much affection ; and the child was delivered into his custody on 
 the terms that the maternal aunt, whom its mother had left as the 
 guardian should have reasonable and proper access to it.' But 
 the Court has refused to appoint the mother guardian to her bas- 
 tard daughters who took a fortune under their father's will.'" 
 
 Where a mother or other female is appointed guardian and 
 marries, the appointment of a new guardian is made by the Court, 
 though the late guardian may be reappointed," but not until 
 after a reference for the purpose of ascertaining whether or not 
 her reappointment would be for the benefit of the infant. For 
 analogous reasons it has been recently laid down that a married 
 woman ought not to be appointed as sole guardian.'^ The solici- 
 tor for any of the parties who exercise a control over the infant's 
 estate must not be appointed guardian of infant's person.'^ 
 
 When of two or more guardians appointed by the Court one 
 
 1 49 & 50 Vict. c. 27, s. 3. 2 EaV. v. Storer, i Y. & C. Ex. 556. 
 
 3 Be Kaye, L. E. i Ch. App. 387. •* Be O. (are Infant), [1892] i Ch. 298. 
 
 5 Hx parte Edwards, 3 Atk. 519. « Mansell's Case, 2 Swanst. 536. 
 
 '' Sleeman v. Wilson, L. E. 13 Eq. 36. 
 
 8 Chatteris v. Toung, i J. & W. 106, but see JElwes v. Const, 1 Madd. Ch. Pr. 
 435. 
 
 ^ Ord V. Blackett, 9 Mod. 116. In this case the dispute was between the father 
 and the mother's sister, who was appointed executrix and guardian under the 
 mother's will, by which real property was left to the child. The Court also 
 ordered the sum for the child's maintenance and education to be paid to the 
 father. '" Curtois v. Vincent, Jac. 268. 
 
 " Be Gornall, i Beav. 347 ; Jones v. Boioell, 9 Beav. 345. 
 
 '^ Be Kaye {uhi sup.) 
 
 " Be Johnstons, 2 Jo. & Lat. 222. See Be Kemp's Settled Estates, 24 Ch. D. 485. 
 
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CHAP. ii.J DIFFERENT KINDS OF GUARDIANS. 607 
 
 dies, the guardianship is at an end, for there is no survivorship to guardians, 
 those that remain ' ; and this fact marks the difference between the Oourt. 
 this, kind of guardianship and testamentary; the survivors will, 
 however, probably be re-elected." The power to appoint guardians Ponder of Court 
 to infants, or to make them wards of Courts, is not limited by the Engii™ ^ ^ 
 English domicil of the infant, or by the fact that he has no domioii. 
 property in this country' ; and an infant when resident in England 
 has been made a ward of Chancery, though domiciled in Scotland, 
 and having all his property there.'' 
 
 (4) Foreign Guardians. 
 
 Foreign Guardians. — Where an infant is within the jurisdiction Guardiaus 
 of the Court of Chancery for whom a guardian has been appointed a^oreim Court. 
 in a foreign country (whether by act of parties or by some com- 
 petent tribunal), difficult questions sometimes arise as to the rights 
 =and powers of the foreign guardian within the jurisdiction of the 
 ■Court of Chancery. This conflict arises from the fact that the 
 ■appointment of a guardian is territorial, that is, coniined to the 
 jurisdiction of the country in which he is appointed, and cannot, 
 •except by the comity of nations, be recognized in foreign countries. 
 Mr. Dicey, in his work on Domicil,^ sums up very accurately the Foreign 
 strict rule of law on the subject. He says : "A guardian appointed no^direot 
 under the law of a foreign country (called hereinafter a foreign S'*''i°"*/ ™ 
 guardian), has no direct authority as guardian in England ; but the 
 English Courts recognize the existence of a foreign guardianship, 
 and will, in their discretion, give effect to a foreign guardian's 
 authority over his ward.^' This rule coincides with the opinion of 
 Story, who holds that " notwithstanding that a foreign guardian has 
 no absolute rights as such in a foreign jurisdiction, the fact that he 
 is such is entitled to great weight in the Courts of another when 
 called upon to determine, in their discretion, to whose custody a 
 minor child shall be committed ; and if it appears for the best 
 interests of the child that he should be under the care and custody 
 of a guardian appointed in a foreign State, the Court may so decree, 
 even though another guardian has been appointed in the State 
 where the minor subsequently is found." ° Thus, it may be said that 
 foreign guardians as such have no rights here in England, their 
 powers and functions are confined to the limits of the country in 
 'which they have been appointed ; and the Court of Chancery has 
 
 ^ Sradshaw. v. Bradahaw, i Rnss. 528. ^ Mall v. Jones, 2 Sim. 41. 
 
 ^ Be WiUoughhy (an Infant), 30 Ch. D. 324. 
 * Johnstone 9. Beattie, 10 CI. & Fin. 42. 
 ^ Bule 28, p. 172, ^ Conf. Laws, b. 499 a. 
 
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608 GUARDIAN AND WARD. [part hi. 
 
 the power to appoint its own guardians for any infant within its 
 jurisdiction, who is without a parent or guardian, whether the 
 infant does or does not possess property within the jurisdiction.^ 
 Gradual recog- It is possible to trace the tendency of the English law towards 
 
 mtionofthe ,, , , •,• « t . , „ » 
 
 rights of the more complete recognition of the rights of foreign guardians. 
 
 guaidTana. '^^^^' ^^^ ^^^^ °^ Johnstom V. Beattie '' may primd facie be taken 
 as an authority that foreign guardians were powerless here in Eng- 
 land as against guardians appointed by the Court of Chancery to 
 wards who were domiciled subjects of a foreign country, and were 
 only temporarily resident in England. But with reference to that 
 case Lord Campbell, when Lord Chancellor, said in Stuart v. The 
 Marquis of Bute," "All that can be considered as judicially 
 decided by the House was, that if there be a foreign child in 
 England, with guardians duly appointed in the child's own 
 country, the Court of Chancery may, without any previous 
 inquiry whether the appointment of other guardians is or is not 
 necessary, and would or would not be beneficial for the child, 
 make an order for the appointment of English guardians." * 
 
 In the later case of Di Savini v. Lousada,^ where an Italian 
 Court had appointed guardians for an Italian infant who came to 
 England, and being made a ward ia Chancery was, with the 
 consent of the Italian guardians, placed in the custody of English 
 guardians, who did not carry out the directions of the Italian 
 guardians, the Court of Chancery, upon the application of the 
 Italian Court, appointed new guardians, and declared its readi- 
 ness to carry out in all respects the orders of the Italian Court 
 with regard to the infant, so far as might be consistent with 
 the laws of England. In the case of Nugent v. Vetzera^ it 
 was held that the Court of Chancery might appoint guardians 
 for infants temporarily within the jurisdiction, but the power 
 and control of the foreign guardians appointed by proper and 
 -competent tribunals will be respected.' Dawson v. Jay^ is no 
 authority for saying that foreign guardians will not be permitted 
 to take their wards out of the jurisdiction, but only under certain 
 circumstances they will be prevented by the Court from so doing, 
 and that it will not compel their removal out of the jurisdiction. 
 
 1 Johnstone v. Beattie, lo CI. &F. 42. 
 
 2 (Vbi sup.). See Lord Cottenham'e remarks (p. 114): "Foreign tutors and 
 curators .... cannot te English guardians witliout being able to derive their authority 
 from some one of the sources from which the English law considers that the right of 
 guardianship must proceed ; and it has before been shown that the rights and duties of 
 a foreign tutor and curator cannot be recognized by the Courts of this country with 
 reference to a child residing in this country. The result is that such foreign tutor and 
 curator can have no right as such in this country." ' 9 H. L. Cas. 440, 464. 
 
 ^ See also JSx parte Wathins, 2 Ves. Sen. 470. 
 
 ^ 22 L. T, 61. " L. R. 2 Eq. 704. 
 
 ' See Be Meurgoise, 41 Ch. D. 310. ^ jDe Q-. M. & G. 764. 
 
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CHAP. II.] DIFFEfiENT KINDS OF GUARDIANS. 609 
 
 The rights of foreign guardians to the control and custody of Eight of 
 their wards (subjects of a foreign country) for whom English g°[arfians to 
 guardians have been appointed, will be respected and not inter- ""stody of 
 fered with, and if the foreign guardians think, in the honest 
 exercise of their discretion, that it would be for the advantage 
 and interest of their wards to remove them out of England, the 
 Court of Chancery will permit them to do so.^ This is an 
 acknowledgment of the principle that the status of persons with 
 respect to acts done and rights acquired in the place of their 
 domicil, and contracts made concerning the property situated 
 therein, will be governed by the law of that domicil, and that 
 England .... will hold as valid or invalid such acts, rights, 
 and contracts, accordingly as they are holden valid or invalid by 
 the law of the domicil.^ Bat the Court of Chancery reserves to 
 itself the right to interfere with the control of the foreign 
 guardian, and would not permit him to exercise any powers 
 over his ward which could not be exercised by an English 
 guardian.^ 
 
 The next point to be considered is the power of the foreign Power of 
 guardian over the property of the ward situate within the juris- ^ard-rpro^*^' 
 diction of the Court of Chancery. As regards real or immove- P^ity- 
 able property, it is clear that the lex rei sitce, i.e., the law of 
 England, must regulate his power, and unless the foreign guardian 
 come in and qualify and be appointed guardian by the Court, 
 he would have no power to deal with immoveables. As regards Personal pro- 
 personal or moveable property, the right of a foreign guardian to ^^^ ^' 
 deal with such has not been the subject of an actual decision,* 
 and therefore is still within the region of speculation. But 
 according to the common law of this country, the i*ights of a 
 guardian are deemed to be strictly territorial, and so no foreign 
 guardian can virtute officii exercise any rights or powers over the 
 moveable property of his ward in a country other than that in 
 which he has been appointed without conforming to the law of 
 the place in which the moveables are situate." This is clearly 
 the law of the American States,* but the Scotch Courts are more 
 inclined to defer to the appointment made by the lex domicilii of 
 the minor and his guardians.' If the infant be domiciled in this 
 country, its personal property must be dealt with according to 
 
 ' Stuart V. Marquis of Bute, 9 H. L. Cas. 440 ; Di Savini v. Lousada, 22 L. T. 
 •61 ; Nugent v. Vetzera, L. R. 2 Eq. 704. The complete supersession of the foreign 
 guardian would be an offence against the comity of nations, and put an end to the inter- 
 change of friendship between civilised communities. 
 
 2 Phil. Int. Law, s. 381. " Dicey, Dom. 176. 
 
 * See remarks of Wood, V.-C, in Scott v. Benthy, 24 L. J. Ch. 244. 
 
 ^ See Dicey, Dom. 176. 
 
 ^ Story, Conf. Laws, s. 504 a, and the cases there cited. 
 
 ^ Fraser, Par. and Ch. 602 et passim. 
 
 2Q 
 
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610 GUAEDIAN AND WAED. [part hi. 
 
 English law ; ' but if abroad, personal property will be paid over 
 to him, if by the law of his domicil he is entitled to receive it.* 
 and to his foreign guardian if he be also entitled to receive it.* 
 The Court of Probate may grant administration in England to 
 the duly appointed foreign guardians of infants domiciled 
 abroad.^ ■ 
 
 Tutors appointed by will in a foreign country are not testa- 
 mentary tutors within 12 Oar. II. c. 24.* 
 
 (S) Guardians appointed for Special Purposes. 
 
 Guardians may be appointed by the Chancery Division for the 
 special purposes provided for by the following Acts : — 
 
 4 Geo. IV. c. (('• To give legal consent to the infant's marriage under 
 ''^'=-'^- 4 Geo. IV. c. 76, s. 16. 
 
 27 & 28 Viot. &• To consent on behalf of infant under the Improvement 
 '■■ "4- of Lands Act, 1864 (27 & 28 Vict. c. 1 14).' 
 
 33 & 34 Vict. c. To consent to improvements being effected on the infant's 
 "■ ■5^" property (e.g., building a mansion-house) under the 
 
 Limited Owners Eesidences Act, 1870 (33 & 34 Vict. 
 
 c. s^V 
 
 36 & 37 Viot. d. To concur in the grant of a site for a church, &c., under 
 "•5°- the Places of Worship Sites Act, 1873 (3 6 & 37 
 
 Vict. c. 50). The father of the infant is a competent 
 person for this purpose.' 
 
 37 & s8 Vict. ^- "^0 consent on behalf of the infant for purposes under 
 c. 78. the Vendor and Purchasers Act, 1874 (37 & 38 
 
 Vict. 0. 78).' 
 
 o & 41 Vict /• 1'° consent on behalf of the infant for purposes under the 
 
 18. " Settled Estates Act, 1877 (40 & 41 Vict. c. 18). 
 
 guaSunder Such Special guardian must be appointed though the 
 
 Settled Estates infant's father be alive, or a testamentary guardian 
 
 ^' has been appointed for him.^° " Upon an application 
 
 to appoint a guardian to an infant for any such 
 
 purpose as aforesaid, the summons shall be served 
 
 upon the parent, testamentary guardian, or guardian 
 
 appointed by the Court of Chancery or the Chancery 
 
 Division of the High Court of Justice, of the infant, 
 
 1 Omribier v. OamUer, ^ Sim. 263. „ „ t, tt „ . 
 
 2 In the Goods of the Countess da Cunha, I Hag. Con. Kep. 237 ; Me MeUmans . 
 
 '^^'jRe Crichton's Trusts, 24 L. T. 0. S. 267; Be Ferguson's Trusts, 22 'W . B.. 
 762 (Irish case). * In the Goods of Sartoris, i Curt. 910. 
 
 5 Johnstone v. Beattie, 10 CI. & F. 42 ; Scott v. Bentley, 1 K. & J. 281 ; Stimrt v. 
 Marquis of Bute, 9 H. L. Cas. 440. " Set. Deer. 841. ' Ibid. 
 
 " Marquis of Salisbury'.s Case, 2 Ch. D. 29. " Set. Deer. 841. 
 
 " Be James, h. E. S Eq, 334 ; Be Oaddick, 7 W. R. 334. 
 
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 c, 
 
CHAP. II,] DIFEEEENT KINDS OF GUARDIANS. 611 
 
 if there be any such parent or guardian, unless the 
 Court or Judge shall dispense therewith." ' Upon an Facts to be 
 application to appoint a guardian of an infant the application. 
 following facts shall be proved : — 
 
 (i) The age of the infant. 
 
 (2) Whether he has any parent, testamentary guardian, or 
 
 guardian appointed by the Court of Chancery or the 
 Chancery Division of the High Court of Justice, and 
 if so, whether such parent or guardian has any interest 
 in the application, and, if he has, the nature of such 
 interest, and whether or not adverse to the interest of 
 the infant. 
 
 (3) Where and under whose care the infant is residing, and 
 
 at whose expense he is maintained. 
 
 (4) In what way the proposed guardian is connected with 
 
 the infant, and why proposed, and how qualified. 
 
 (5) That the proposed guardian has no interest in the 
 
 application, or, if he has, the nature of his interest, 
 and that it is not adverse to the interest of the 
 infant. 
 
 (6) The consent of the guardian to act.^ 
 
 Where the infant is tenant in tail, the mere appointment of a 
 guardian is not of itself sufficient ; for the guardian cannot act 
 when appointed without the special direction of the Court. This 
 direction is obtained on summons issued by the next friend, and 
 served on the guardian or proposed guardian, and may be, and 
 usually is, combined with the application of the guardian. On 
 the hearing of this application, the guardian or proposed guardian 
 must make an affidavit, stating that it is proper and consistent 
 with a due regard to the infant's interest that such direction 
 should be given,^ 
 
 A quasi-gnaxdianahip often arises at law where there has been Quasi- 
 no regular appointment, or an appointment without jurisdiction, ^"^"^ '""^ '^" 
 or there has been some intermeddling. The general principle 
 thus recognized is that any person who takes possession of an 
 infant's property takes it in trust for the infant. Hence, Courts 
 of equity will always protect the helpless in such cases by hold- 
 ing the person who acts as guardian strictly accountable.'' And 
 where a guardian continues to manage his ward's property at his 
 request after he has attained his majority, he must account upon 
 
 ^ Settled Estates Act Orders, 1878, Order 8. ^ /6iU. Order 10. 
 
 ' 40 & 41 Vict. c. 18, a. 49 ; Settled Estates Act Orders, 1878, Orders 6, 9 and 12. 
 * Sch. Dom. Eel. s. 326, and the American cases there cited by him ; 2 Fonb. Eq. 
 Bk. 2, Pt. 2, chap. 2, B. I ; see also Bevett v. Harvey, i Sim. and St. 502. 
 
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612 GUARDIAN AND WARD. [part hi. 
 
 the same footing as if the transactions were during the ward's 
 minority.' 
 
 The infant's next friend (prochein amy) who appears for him 
 
 in actions in which he is plaintiff, and his guardian ad litem 
 
 when appearing as defendant, will be discussed in the part 
 
 devoted to Infancy .° 
 
 Guardians, or Guardians or curators are appointed not only to infants and 
 
 committees of . i. i. t i. -t i. t j.- i j- -, 
 
 lunatics. minors, but also to idiots, lunatics, and persons oi unsound 
 
 mind,' for the purpose of tending their persons and managing 
 their estates ; these guardians are usually called " committees." 
 Chancery The jurisdiction of the Court of Chancery over idiots and lunatics 
 iniunaoy™ is different to that exercised by it in the case of infants. The 
 jurisdiction over the latter is derived from the original authority 
 vested in the Crown as parens patrice to superintend the care and 
 custody of infants and exercised by the Court of Chancery in its 
 Delegation of representative capacity ;* while its jurisdiction over lunatics is 
 ferred b/™ ^^^ delegation of a power conferred on the Crown by Parliament, 
 Parliament. Q,nd. is confined to the individual persons whom the Sovereign by 
 its sign-manual intrusts with the care and custody of the per- 
 sons and estates of idiots and lunatics. This is demonstrated 
 by the absence of any right of appeal from a judge in lunacy to 
 the House of Lords, but only to the Sovereign in Council.* The 
 Acts of Parliament which conferred upon the Crown the custody 
 of idiots, and vested in it the profits arising from their estates, 
 were 7 Edw. II. c. 9 (de PrerogativA Regis), and 17 Edw. II. c. 10, 
 which enacted that the king should provide that the lands 
 and tenements of lunatics should be kept without waste. These 
 two statutes are said to have differed in their operation. In the 
 case of lunatics the king is a mere trustee ; but in the matter of 
 idiots he has a beneficial interest. ' This beneficial interest it was 
 necessary for him to delegate specially to some particular in- 
 dividual ; but the statute in the case of idiots conferred on him 
 the power to act as parens patrice, ; and so the Court of Chancery 
 acting in the place of the Crown had only original jurisdiction 
 in the case of lunatics, at any rate in the case of lunatics not so 
 found by inquisition.* 
 
 1 Mettish V. Mellish, 1 Sim. & St. 138. _ ^ Posi, Part IV. chap. vii. 
 
 ■■i Lunatic is " any idiot or person of unsound mind," 53 Vict. c. 5, b. 341. 
 
 ■• See ante, p. 602. 
 
 s But as a matter of fact an alteration in the appellate procedure has recently been 
 effected. By 36 and 37 Vict. c. 66, s. 18, " The' Court of Appeal established by this 
 Act shall be a superior Court of record, and there shall be transferred to and vested in 
 such Court all jurisdiction and powers of the Courts following (that is to say) .... 
 (5) All jurisdiction vested in or capable of being exercised by Her Majesty's Privy 
 Council, upon appeal .... from any order in lunacy made by the Lord Chancellor, 
 or any other person having jurisdiction in lunacy." 
 
 « See St. Eq. ss. 1335, 1336 ; 2 i'onb. Eq. 22871. ; The Corporation o/Burford v. 
 
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CHAP, u.] DIFFERENT KINDS OF GUARDIANS. 613 
 
 Under the Roman law spendthrifts {prodigi), or those who No gxiardian- 
 wasted their substance in reckless living, were put tinder the.or 'spend-'" '*" 
 care of curators, after inquisition, who managed their property, t^^"'''- 
 " But with us," so says Blackstone,' " when a man on an inquest 
 of idiocy hath been returned an unthrift, and not an idiot, no 
 farther proceedings have been had." And the propriety of the 
 practice seems to be very questionable. It was doubtless an 
 excellent method of benefiting the individual, and of preserving 
 estates in families ; but it hardly seems calculated for the genius 
 of a free nation, who claim and exercise the liberty of using 
 their own property as they please. Sic utere tuo, ut Tion alienum 
 Iwdas, is the only restriction our laws have given with regard to 
 economical prudence. And the frequent circulation and transfer 
 of lands and other property, which cannot be effected without 
 extravagance somewhere, are perhaps not a little conducive 
 towards keeping our inixed constitution in its due health and 
 vigour. 
 
 The Court of Chancery may appoint a guardian to an infant 
 lunatic not so found by inquisition, where the property is small, 
 and it is impossible to obtain an order in lunacy.'' 
 
 The Court of Chancery has been intrusted with certain powers Custody of 
 . over infants convicted of felony ; ' thus it may assign the care 
 of an infant convicted of felony to any person other than the 
 testamentary or natural guardian." The person to whom the 
 custody is assigned must not send the child beyond the seas or 
 out of the jurisdiction of the Court.^ The execution of the 
 sentence passed upon the conviction of the infant is not to be 
 affected or interfered with." 
 
 LenihaU, 2 Atk. 553 ; Oxendon v. Lord Compton, 2 Ves. 71 ; Sx parte Qrimstone, 
 Amb. 707 ; JRe Fitzgerald, 2 Sch. & Lef. 436 ; Fame v. Vane, 2 Ch. D. 124. 
 
 1 I Com. 306. ' Vane v. Vane, 2 Ch. D. 124. 
 
 » 3 & S "Vict. c. 90. ^ Sect. I. 5 Sect, 2. 
 
 6 Sect 4. 
 
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CHAPTER III. 
 
 Control of the 
 Court. 
 
 Guardians of 
 the person. 
 
 Guardians of 
 
 the estate. 
 
 JUDICIAL CONTEOL OVER GUAEDIANS. 
 
 CONTEOL OVER GUABDIANS OF THE PeESON AND ESTATE 
 
 jubisdiction over parents 
 
 jceisdiction over guardians 
 
 Jurisdiction over those Appointed by itself. 
 
 Removal and Supersession of Guardians . 
 
 Testamentary Guardians may now be Removed 
 How Guardians Removed or Superseded . 
 
 PAGE 
 
 614 
 61S 
 
 61S 
 617 
 618 
 619 
 620 
 
 In this chapter the general principles upon which the Court of 
 Chancery acts in controlling guardians in the exercise of their 
 office, and in removing or superseding them when necessary, will 
 be set forth. The detailed instances of its interference will be 
 found elsewhere under their respective headings. 
 
 Guardianship is a trust,' and a trust of delicacy and import- 
 ance, which the good ordering of society requires to be faithfully 
 carried out. The Court of Chancery, as having the supreme 
 control over trusts, claims to interfere and see that the trusts are 
 strictly carried out for the benefit of those in whose interests 
 they were created ; and will remove trustees who fail in their 
 duty, and appoint fresh ones in their stead, for such exist for 
 the benefit of those to whom the creator of the trust has given 
 the trust estate.^ It will thus interfere with those guardians who 
 are appointed to the person of an infant ; and this species of 
 guardianship is a more exacting kind of trusteeship than the 
 mere trust to hold and dispose of his property.' It also exercises 
 a vigilant care over guardians of the estate in regard to the 
 management and disposal of the property of infants ; and will 
 carry its aid and protection in their favour so as to reach other 
 persons than those who are guardians strictly appointed ; for if 
 one intrudes on the estate of an infant, and takes the profits 
 thereof, he will be treated as a guardian, and held responsible 
 
 ' MatJiew V. Brise, 14 Beav. 341 ; Steeman v. Wilson, L. E. 13 Eq. 36. 
 
 ^ Letteratedt v. Broers, 9 App. Cas. 371. 
 
 ' Duke of Beaufort v. Berty, i P. Wms. 703. 
 
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CHAP. iii.J JUDICIAL CONTROL. 615 
 
 for tlie same to the infant in a Court of Equity.' , Any breach of interference of 
 trust by a guardian will be punished ; and if mismanagement of ® "^^ ' 
 the infant's property is suspected, any person may make an 
 application to the Court on behalf of the infant ; ^ and it has 
 been laid down that if any wrong steps had been taken which 
 might not deserve punishment, yet if they were such as induced 
 the least suspicion of the infant's being like to suffer by the con- 
 duct of the guardians, or if the guardians chose to make use of 
 methods that might turn to the prejudice of the infant the Court 
 would interpose and order contrary.^ 
 
 The jurisdiction of the Court over guardians is also due to its 
 superintending power over the care of the person of the infant 
 ward in respect of its protection and education, and over the 
 property of the infant in respect of its due management and 
 preservation, and the proper application of it for the ward's 
 maintenance. Prom the first the Court derives its jurisdiction Jurisdiction of 
 over the infant's natural guardians, its parents. From the second ^^^entaJ'^' 
 it derives its jurisdiction over the infant's guardians in the 
 ordinary sense of the word. The Court has ample power to 
 remove a child from the control of its father and place it under 
 that of its mother till it reaches the age of sixteen.^ It can 
 remove an infant altogether out of the power of its parents, if 
 their character and conduct are of so gross a nature as to make 
 it almost certain that the detriment of the child would ensue by 
 remaining in their company.* Another ground for its interfer- 
 ence with the parental control is where the parent has acquiesced 
 for a long period in the appointment of a stranger as guardian 
 of the child, whom he has allowed to be brought up and educated 
 by the guardian,' more especially where the parent, being of 
 straitened means, has himself taken some pecuniary benefit as 
 the price of his acquiescence, and the child's reasonable prospects 
 and expectations would be defeated.^ Where the mother is unfit 
 to retain the custody of her children, whether in her capacity of 
 natural or testamentary guardian, the Court will remove them out 
 of her control.' 
 
 The jurisdiction of Chancery extends over guardians properly Jurisdiction 
 so called, including guardians by operation of law, or socage °"'®'^s«ar lans. 
 guardians, those chosen by the infant himself, testamentary guar- 
 dians, or those appointed by the will of the infant's father, and 
 Chancery guardians, or those appointed by the Court itself. The 
 
 ^ Story, Eq. s. 1356 ; Nanney v. Williams, 22 Beav. 452. 
 
 ^ Lord Dudley's Oase, cited Pon^ret v. Windsor, 2 Ves. Sen. 484. 
 
 2 Per Lord Hardwicke, Duke of Beaufort v. Berty {uhi swp.). 
 
 * Under 36 Vict. c. 12. 
 
 ^ 49 & 50 Vict. 0. 27, s. 3 (2) ; 52 & 53 Vict. c. 56 ; 54 Vict. c. 3. ' Ibid. 
 
 ' See ante, Part II. Parent and Child, chap. ii. p. 494 ; 49 & 5o Vict. c. 27, s. 2. 
 
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616 
 
 GUAEDIAN AND WARD. 
 
 [part III. 
 
 Court will also superintend and control guardians appointed by a 
 foreign Court, and recognized as haying authority in this country, 
 and will, if necessary, appoint new guardians in their place to 
 take charge of the wards. The Court has full power to control 
 and interfere with the common law guardian in socage, and the 
 guardian appointed by the infant himself. Its control will be 
 exercised over a testamentary guardian if his conduct be im- 
 proper/ and orders may be made by the Court regulating his 
 conduct.^ Where guardians, whether appointed by the father or 
 the mother, are unable to agree upon questions affecting the 
 welfare of the ward, any of them may apply to the Court for its 
 direction, upon which application it may make such order as it 
 may thiak fit.' The Court will restrain a testamentary guardian 
 from exercising his legal powers without any misbehaviour on his 
 part, simply on the ground of the infant's benefit.^ The Court, 
 however, will not lightly interfere with the control of a guar- 
 dian, and where a pennUess child is under the care of a legal 
 guardian who is able and willing to maintain it at his own 
 expense, the duty of the Court is to leave the child alone, unless 
 it is satisfied that it is for the welfare of the child that some 
 other course should be taken. The dominant matter for the con- 
 sideration of the Court is the welfare of the child, which is not to 
 be measured by money only, or by physical comfort only, but is 
 to be taken in its widest sense. The moral and religious welfare 
 of the child must be considered as well as its physical wellbeing, 
 nor are the ties of affection to be disregarded.* If, therefore, the 
 Court thinks fit to interfere on the ground of the welfare of the 
 child, it will deprive a parent of its custody.^ 
 
 The Court will exercise its discretion generally as to the educa- 
 tion of the ward, though it will be guided by the interests of the 
 infant. The guardians are the proper judges of the method of 
 educating their ward ; but if they disagree, the Court will 
 exercise its own discretion on the subject, and will not consider 
 itself bound by the wishes of the majority. Where the father of 
 the ward has expressed his wishes either openly or impliedly as 
 to the religious faith in which his child is to be brought up, the 
 Court will listen and give effect to them.' Parol evidence will 
 and residence be admitted to prove the father's wishes.* In general the testa- 
 
 of the ward. 
 
 1 Talbot y. Barl of Shrewsbury, A,'illil\.&iGv,6']Z. 
 
 2 Roach V. Garvan, i Ves. Sen. 157. s 45 & cq Vict. c. 27, s. 3. 
 
 ^ Andrews v. Salt, L. E. 8 Ch. App. 622. See Me QoUsworthy, 2 Q. B. D. 75 ; 
 and the remarks of Brett, M.R., in Be Agar-ElUs, Agar-Mlis v. La^cdles, 24 Ch. D. 
 317, 387. = Be M'Gfrath {Infants), [1893] I Ch. 143. 
 
 15 See Beg v. Gyngall, [1893] 2 Q. B. 242. 
 
 '' Talbot V. Earl of Shrewsbury, 4 Myl. & Cr. 672. 
 
 * A.non: 2 Ves. Sen. 56, which is in direct opposition to Storhe v. Storke, 3 P. 
 Wms. 52. 
 
 When the 
 Court can 
 control the 
 education 
 
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CHA.P. III.] JUDICIAL CONTROL. 617 
 
 mentary guardian is entitled to the custody of the ward's person, 
 but the Court may exercise its discretion either in ordering the 
 ward to be delivered up to the guardian, or in permitting him to 
 reside with the mother, or in allowing her to have access to him.' 
 Though the testamentary guardian is legally entitled to the care 
 and management of his ward's property, real or personal, he is 
 himself subject to the control of the Court, and must account for 
 what he has received. 
 
 The power and jurisdiction of the Court over guardians Jurisdiction 
 appointed by itself is clear and undisputed. A guardian guardians ap- 
 appointed by the Court is an officer of the Court, and responsible fj.gg^f*'''^ ^^ 
 to it.^ When the Court has assumed authority over the person 
 or property of the infant ward, it acts throughout with all the 
 anxious care and vigilance of a parent, and it allows neither the 
 guardian nor any other person to do any act injurious to the 
 rights or interests of the infant. The Court has thus power to 
 superintend the religious education of infants ; it may settle in 
 what faith they should be brought up, and may even order the 
 discontinuance of their education in a particular religion if not to 
 their detriment. The Court will interfere where there is a 
 difference between the guardians as to the management of their 
 ward, or as to the school to which he ought to be sent, or the 
 person with whom he should reside, and generally as to the care 
 and control of the ward." It has power to order what sums 
 should be expended for the maintenance and education of the 
 infant wards out of their fortune, and the guardians must pass 
 their accounts.^ Guardians will be prevented from taking wards 
 of Court out of the jurisdiction, and their permanent residence 
 abroad will not be permitted, except to their manifest advantage, 
 as regards health and the like, and then only after leave obtained. 
 The clandestine removal or attempt at removal of a ward of Oontempt of 
 Court out of the jurisdiction is a gross contempt, and in its 
 nature criminal, and visited with severe pains and penalties ; ^ to 
 conceal or withdraw the person of the infant ward from the 
 proper custody is likewise a contempt, and those who are aware 
 of its place of concealment must divulge it.^ It is also a con- 
 tempt to disobey the orders of the Court in relation to the main- 
 tenance and education of the ward, or to marry the infant with- 
 out the proper consent of the Court. 
 
 ' Eyre v. Countess of Sliafteslury, 2 P. Wms. 103 ; Ex parte Earl of lldiester, 
 7 Ves. 380. ^ WeUesley v. Dulce of Beaufort, 2 Kuss. & Myl. 639. 
 
 ^ Duke of Beaufort v. Berty, 1 P. Wms. 704 ; Storlce v. Storlce (uli sup.) ; 
 Anon. 2 Ves. Sen. 56. 
 
 ^ Dan. Ch. Pr. 1120 ; Campbell v. Madcay, 2 Myl, & Cr. 31 ; Be Medley, I. E. 6 
 Eq- 339- ^ Eyre v. Countess of /Shaftesbury {ubi supX 
 
 ^ Mamsbotham v. Senior, L. E. 8 Eq. 575 ; Rosenberg v, Linda, 48 L. T. 478. 
 
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618 GUARDIAN AND WARD. [pabt hi. 
 
 The Court will assist guardians in the exercise of their trust if 
 their wards prove refractory.' The Court, of course, cannot be 
 aware of the conduct of the large number of wards under its 
 care, but in order to keep itself informed, it requires the guar- 
 dians from time to time to give general information of what is 
 taking place ; and, whenever necessary, they ought to apply to 
 Control over the Oourt for advicc and directions.^ The Court of Chancerv has 
 
 marriage of i . . t , , '' 
 
 wards of Complete control over the marriage of its wards, and though it 
 Court. ^Qgg jjpj- QQ^ g^g ^ uiatter of practice require the guardian under 
 
 ordinary circumstances to enter into a recognizance not to allow 
 the ward to marry without the consent of the Court, yet it might 
 think fit to exact such security where the ward is a female, and 
 about to reside out of the jurisdiction.^ 
 Orders regu- Where a guardian appointed by the Court does not behave to 
 
 lating conduct ,■, i.- j- . • r i ^ n 
 
 of guardian, tne satisiaction 01 the Court, orders regulating his conduct will be 
 made upon him ; and if the Court is under the slightest suspicion 
 that the infant will suffer from such conduct, it will interpose on 
 its behalf .' 
 
 Kemovai and As a necessary incident of the power of the Court to control 
 
 supersession -,. •' . ^ 
 
 of guardians, guardians and protect the interests of infants, it has the power 
 to remove or supersede guardians. As before seen, in all such 
 cases the guardianship is treated as a delegated trust for the 
 benefit and advantage of the infants,* and if it is abused, or in 
 danger of being abused, the Court will interpose, not only by 
 way of remedial justice, but of preventive justice.^ It is indispu- 
 table that the Court has power to remove those guardians that are 
 appointed by itself, but it also can remove or supersede those . 
 appointed by the infants themselves, and common law guardians, 
 or guardians in socage. The ground for removal of the guardian 
 is general unfitness for the trust reposed in him, whether it take 
 the shape of actual breaches of trust, or gross personal miscon- 
 duct on his part, and even suspicion of possible harm or loss to 
 the ward will induce the Oourt to interpose on its behalf; thus if 
 a guardian is shown to have caused, encouraged, or procured the 
 seduction or prostitution of his infant ward under the age of six- 
 teen, the Court may divest him of all control over her, and 
 appoint some other person her guardian till she reaches majority.^ 
 
 1 Hall V. ffcdl, 3 Atk. 721 ; Tremaine's Case, Stra. 168. In this case tlie infant 
 went to Oxford contrary to the orders of his guardian, who would have had him to 
 Cambridge, and the Oourt sent a messenger to carry him from Oxford to Camhrialge ; 
 and upon his returning to Oxford, there went another, tarn to carry him to Cambridge, 
 quam to keep him there. ^ Kay v. Johnston, 21 Beav. 536. 
 
 * See Jeffreys v. Vanteswartswarth, Barn. Ch. 141. 
 
 * 2 Fonb. Bq. Bk. ii. chap. ii. o. i n. o ; Macph. Inf. 119. 
 ^ Eoaali v. Garvan, 1 Ves. Sen. 157. 
 
 ' St. Eq. B. 1339; Dulce of Beaufort v. Serty (nhi sup.). 
 
 ' 48 & 49 Vict. c. 69 s. 12. See Biscoclcs v. Jermonson, 10 Q, B. D. 360. 
 
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CHAP. iii.J JUDICIAL COISTTEOL. 619 
 
 Becoming a lunatic or idiot, or being convicted of a serious 
 criminal . offence, would be a ground for removing a guardian. 
 The application to remove a guardian of the person or estate 
 should be made by summons, supported by evidence of the facts 
 which render the application necessary.' 
 
 The control of the Court over testamentary or statute guardians Testamentary 
 is clearly established, but the opinion prevailing down to recent removed and ' 
 times was that it had not the power (at any rate, it would not exer- superseded. 
 cise it) to remove testamentary guardians. The reason for this was 
 said to be the deference paid by the Court to the statute constitu- 
 ting their guardianship ; ^ thus, testamentary guardians were not 
 removed, but superseded, and restrained from interfering with 
 the infant's person or estate ; ^ the Court suspended their office by 
 taking the wards out of their control and custody.* But under 
 the Guardianship of Infants Act, 1886, the High Court of Justice 
 in any of its divisions has a discretion on being satisfied that it 
 is for the welfare of the infant to remove from his office any 
 testamentary guardian or any guardian appointed, or acting by 
 virtue of the Act, and may also for the welfare of the infant 
 appoint another guardian in the place of the guardian so removed.^ 
 The Court can likewise make them give security for their proper 
 conduct," or make orders regulating their conduct,' and even 
 punish them ; thus, where one of two testamentary guardians of 
 an infant girl about nine years old took her from a boarding- 
 school and married her to his own son who had no fortune, the 
 Court ordered the guardian to produce the girl in court, and then 
 committed her to the other guardian, and ordered an information 
 to be brought against the guardian who married her to her dis- 
 paragement. If the girl had been a ward of Court the guardian 
 would have been committed to prison.^ When a testamentary 
 guardian is superseded, a new guardian will be appointed to take 
 charge of the ward's person and estate. The reason for super- 
 seding a testamentary guardian is the same as that for removing 
 the other kinds of guardians, namely, general unfitness for the 
 trust reposed in him, either because of personal misconduct," or 
 because of his being in a position which would render it disad- 
 vantageous to the ward that he or his property should remain 
 under his control. A testamentary guardian will be suspended 
 
 1 Dan. Ch. Pr. 1120. - Foster v. Denny, 2 Ch. Cas. 327. 
 
 3 Ingham v. Bickerdyhe (ubi sup.). 
 
 * Macph. Inf. 128. This renders it possible for them to be reinstated in their 
 ofiSce. 5 49 & 50 Vict. 0. 27, ss. 6, 13. " Foster v. Denny {vhi sup.). 
 
 ' Roach T. Qarvan (ubi sim.). ^ Ooodall v. Harris, 2 P. Wms. 561. 
 
 " Morgan v. Dillon, 9 Mocf. 135 ; S. C. Dillon v. Lady Mountcasliell, 4 Bro. P. C. 
 306, reversing Morgan v. Dillon. 
 
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G20 GUARDIAN AND WARD. [part hi. 
 
 for permitting his ward to contract an unfitting marriage ; ' for 
 tampering with the ward's religious views ; ^ and where he 
 becomes a lunatic,' or insolvent, or bankrupt ; * he has also been 
 suspended from his oflBce where he has allowed his rights to 
 lapse by acquiescence.'' Deliberately keeping the ward out of 
 the jurisdiction would be a ground for practical removal or super- 
 session. Mismanagement of the ward's estate would be a ground 
 for removing or superseding him.^ But nothing short of such 
 unfitness will deprive him of his rights ; thus, he will not be 
 superseded merely on account of his pecuniary interest in the 
 death of his ward ; ' nor is absence from the jurisdiction in itself 
 a sufiScient ground for supersession.' The marriage of a female 
 testamentary guardian does not operate as an absolute disqualifi- 
 cation, but, as a rule, a reference will be directed to inquire 
 whether the interests of the infant would be served by her con- 
 tinuing in the office.^ What would be grounds for superseding 
 a testamentary guardian in former days might now be grounds 
 for removing him altogether." 
 How guardian A guardian may be superseded or removed by summons at 
 superseded, chambers, for the purpose of appointing a new guardian in the 
 room of the one sought to be removed or superseded." 
 
 1 Boach V. Garvan, i Ves. Sen. 157. ^ j)( gavini v. Lousada, i8 W. B. 425. 
 '* Hx parte Lady Anne Brydges, cited 2 Fonb. Eq. 247 m. 
 
 ^ Smith v. Bate, 2 Dick. 631. ^ Andreios \. Salt, L. K. 8 Ch. App. 622. 
 
 ^ Lord Dudley's Case, cited Pomfret v. Windsor, 2 Ves. Sen. 484. 
 
 7 Morgan v. Dillon, 9 Mod. 135 ; S. C. Dillon y. Lady Mountcashell, 4 Bro. 
 P. C. 306. 
 
 8 Be Lewis, 2 MoU. 485. ^ Jones v. Powell, 9 Beav. 345. 
 1" 49 & so Vict. c. 27, BS. 6, 13. 
 
 " Dan. Cli. Br. 1120. See Eule 6 of E. S. C. (Guardianship of Infants), 1887. 
 
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CHAPTER IV. 
 
 TERMINATION OF GUARDIAN'S OPFIOE, 
 
 PAGE 
 GUAEDIANSHIP LASTS ONLY TILL MAJOEITY .... 62I 
 
 OlTAEDIANSHIP TERMINATED BY COMPLETION OF PBEIOD FOE 
 
 WHICH IT WAS Instituted 622 
 
 By Death or Waed 623 
 
 By Death op Guaedian 623 
 
 Whethbe Testambntaey Guaedianship of Male Waed 
 
 Tbeminated by Maeeiage 623 
 
 Guaedianship of Female Waed op Couet not Tbemin- 
 ated 624 
 
 Whethee Testamentary Guardianship of Female Waed 
 
 Tbeminated 624 
 
 Maeeiage of Female Guaedian 625 
 
 Resignation of Guaedian 625 
 
 Guardianship cannot be Delegated 626 
 
 Kemoval oe Sdpeesession of Guaedians foe Impeopee 
 
 Conduct 626 
 
 Eembdies against Guardians at Law : 
 
 As Regards the Person 627 
 
 As Regards the Estate 627 
 
 Remedies AGAI^^ST Guardians in Equity • 
 
 As Rbgaeds the Pbeson 627 
 
 As Regards the Estate 627 
 
 Peepetual tutelage is a thing unknown to the English law, as Guardianship 
 being contrary to the spirit of independence implanted in the majorityf 
 Saxon race. When a man not afflicted with imbecility of reason 
 reaches an age when he is deemed by the law to be capable of 
 managing his own affairs, he is loosed from the care and control 
 of guardians.' But where a person is not compos mentis, a curator 
 
 ^ At one period of Roman law women were under a state of perpetual pupilage ; if 
 thej were married they became in manum viri; if they were unmarried and their 
 father was alive, they were in his potestas ; if their father was dead and they were 
 unmarried, they were under the tutelage of their nearest agnates. "Pupillorum 
 pnpillarumque tutores et negotia gerunt et auctoritatem interponunt, mulierum autem 
 tutores auctoritatem dumtaxat interponunt." Flpianns, n, 25. But as Gaius (lib. i. 
 s. 190) says: "Feminas vero perfectae setatis in tutela esse fere nulla pretiosa ratio 
 suasisse videtur, nam quse viilgo creditur, quia levitate animi plerumque deoipiuntur, 
 fit sequum erat eas tutorum auotoritate regi, magis specios.a vigletur quam vera." Before 
 the time of Justinian this perpetual tutelage of women was obsolete, and curators for 
 special purposes were appointed to give authority to her acts. 
 
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622 
 
 GUAEDIAN AND WARD. 
 
 [part hi. 
 
 How termi- 
 nated. 
 
 or committee, as before seen, is generally appointed to look after 
 his person or manage his affairs so long as his madness or weak- 
 ness of reason lasts. Again, a person's property may be in the 
 hands of trustees during his whole life, but such are appointed 
 only for the purpose of preserving or disposing of property ia a 
 particular manner (as, for instance, husband and wife, with trustees 
 appointed to carry out the trusts of their marriage settlement, or 
 an ordinary tenant for_life, with trustees to preserve the interests 
 of the remainder-men, or other interested parties). But, except 
 in such instances, guardianship, according to English law, lasts 
 only till the ward attains majority, or for the period for which it 
 ia fixed, either by the law, or the person appointing, unless it is 
 sooner determined. 
 
 Guardianship may be terminated in various ways, which may 
 be classified as follows: — (i) By what may be termed natural 
 limitations, such as (a) completion of the period for which it was 
 instituted ; (6) death of the ward ; (c) death of the guardian. 
 
 (2) By the act of the parties, such as (a) marriage of the ward ; 
 (&) marriage of a female guardian; (c) resignation of guardian. 
 
 (3) By the improper conduct of the guardian, removal and super- 
 session of the guardian. 
 
 Natural limi- 
 tation. 
 
 Guardianship 
 tenninated by 
 completion of 
 period for 
 which it was 
 instituted. 
 
 (i) Natural Limitation. 
 
 a. Covipletion of the Period for which it was Instituted. — The 
 different kinds of guardianship end at various periods according 
 to their nature. Guardianship in socage came to an end when 
 the infant heir reached the age of fourteen. Testamentary 
 guardianship under 12 Car. II. c. 24, s. 8, usually terminates 
 when the ward reaches th6 age of twenty-one, but may end at 
 an earlier period, if provided for by the will appointing the 
 guardian ; thus, where a testator appointed his wife guardian of 
 his children until her marriage, and the wife married again, her 
 guardianship ceased.' 
 
 Chancery guardianship is put an end to by the ward arriving 
 
 at the age of twenty-one. A person arriving at majority or 
 
 years of legal discretion is deemed competent to manage his 
 
 property, and take due care of himself ; consequently, those who 
 
 are set over him before arriving at that period to watch and pro ■ 
 
 tect him both in person and property are no longer needed, and 
 
 are relieved from their office on proof of their having fairly and 
 
 properly discharged their trust. 
 
 ^ Selby V. Selby, 2 Eq. Ca, Abr. 488. A testamentary guardian is deemed primA 
 facie to hold bis office till the ward comes of age ; and an earlier determination must 
 be expressly provided for. 
 
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CHAP. IV.] TERMINATION OF OFFICE. 623 
 
 h. Death of Ward. — When the ward dies, the guardianship is, Death of 
 of course brought to an end ; and it only remains for the guar- 
 dian to account for his trust with the heirs or the legal and per- 
 sonal representatives of the dead ward, if any. 
 
 c. Death of Guardian. — Death of the guardian necessarily Death of 
 brings the guardianship of the particular guardian to an end, but ^"^"^ """' 
 not the wardship of the ward. Where there are co-guardians, 
 the death of one of them has not the same effect in the case of 
 testamentary and Chancery guardians. Where one of two guar- 
 dians appointed by testament dies, the survivor is entitled to 
 continue in his office.' Where one of two guardians appointed 
 by the Court of Chancery dies, the right of the survivor de- 
 termines, and it becomes necessary to apply again to the Court 
 to make a new appointment f in the absence of any objection it 
 is usual to re-appoint the survivor.^ Where the guardian in 
 socage dies, the person next entitled to take upon himself the 
 office would succeed. 
 
 (2) By Act of Parties. 
 
 a. Marriage of the Ward. — The question whether the marriage By act of 
 of the ward puts an end to the wardship depends upon whether Carriage of 
 the ward is male or female, also whether the guardianship was """ard. 
 testamentary or Chancery. Marriage effects a considerable testamentary 
 change in the position and status of the contracting parties, guardianship 
 
 in. , • . r 1 -r- 1 i Pill ^ ' of male Ward 
 
 and affects the position of the wite more than that of the husband, terminated by 
 for she is deemed to come under the care and custody of her "^"^"^se- 
 husband, though now his marital rights over her property have 
 been abrogated. If a male ward marries, neither as regards his 
 person nor his estate would the powers of his testamentary or 
 Chancery guardian be determined ; at least it is clear that as 
 regards his estate the functions of his guardian would not cease.'* 
 Whether the guardianship of his person ceases is a more difficult 
 question to answer. Marriage usually acts as an emancipation of 
 the child, freeing him from parental control, and enabling him to 
 act independently. If the child can then emancipate himself 
 from his father's control by marriage, it would seem to follow 
 that he could do so when he was only under a guardian, who has 
 no greater rights than a parent. A father, however, voluntarily 
 allows his son to be emancipated, but when a guardian is ap- 
 pointed by a father, his trust does not ordinarily expire till the 
 ward has attained his majority ; and for the guardian to allow 
 
 1 £yre V. Countess of Shafiesbwy, 2 P. Wms. 103. 
 
 2 Bradshawy. Bradshaw, 1 Russ. 528. ^ Sally, Jones, 2 Sim, 41. 
 ^ See Ilendes v. Mendes, 1 Yes. Sen. 89. 
 
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624 GUARDIAN AND WARD. [part hi. 
 
 him to emancipate himself by marriage might amount to a breach 
 of trust on his part. It may, therefore, be urged that the guar- 
 dianship of a male ward does not terminate on his marriage. 
 Guardianship The marriage of a female ward in Chancery does not determine 
 of Oourt^n^r ^^^ guardianship either of her person or property ; for it is clear 
 determined by tj^^t the Courb of Chancery would not allow itself to be ousted of 
 
 marriage. , . , t, , . i • i ■ i 
 
 its authority by an act of the parties which might amount to a 
 contempt of its orders and jurisdiction. A female ward in Chan- 
 cery, married or unmarried, is under the control of the Court 
 both as to person and property till her period of wardship is put 
 Whether tes- an end to by attaining majority. Whether the marriage of a 
 guardianship female ward determines her testamentary guardianship seems to 
 termSat^edb'^'^ ^^ ^ question yet awaiting judicial determination. In Mendes y. 
 marriage. Mendcs,^ Lord Hardwicke is made to use language supporting 
 the contention that marriage of a female ward determines her 
 wardship/ but in the later case of Roach v. Garvan,^ Lord 
 Hardwicke held that wardship was not determined by the mar- 
 riage of a female ward, and that there was no precedent for the 
 contention that it was determined ; but his lordship added that 
 the Court of Chancery had not been in the habit of appointing 
 guardians to a married female infant, and that he would not do 
 so. The better opinion is that the testamentary guardianship of 
 female wards as regards their property is not determined by their 
 Effect of M. marriage. This view may be perhaps strengthened by the opera- 
 ^sJ' '^'''' ^^°^ '^^ *^^ recent legislation affecting married women, by which 
 the rights and control of a husband over his wife's property is to 
 all intents and purposes abrogated ; accordingly, the claims of 
 the husband over his wife's property (not settled to her separate 
 use) which were in conflict with those of her guardian can no 
 longer afford a reason for holding that the claims of the husband 
 on marriage bring about a practical determination of the testa- 
 mentary guardianship. The only ground for holding her freed 
 from the control of her guardian would be that as she is deemed 
 fitted for performing the duties as head of a household and of a 
 mother of a family, she ought to be deemed capable of managing 
 her own property. Where a female ward marries a minor, it is 
 only right and proper that her state of wardship should not be 
 determined by her marriage; otherwise, if the minor husband 
 was himself under guardians, nice and difficult questions might 
 arise as to the right of the husband's guardians to take over and 
 
 1 I Ves. Sen. 89. , , . . .^- j- . 
 
 2 Mijre V. The Countess of Shafteshury was given as the authority for this dictum, 
 but there is nothing in the reports in 2 P. Wms. 103, or Gilb. Eq. Kep. 172, to support 
 this propofition, and in the other report of Mendes v. Mendes, 3 Atk; 619, this dictum 
 is not reported. ' I Ves. Sen. 157- 
 
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CHAP. IV.] TERMINATION OF OFFICE. 625 
 
 administer the property of the infant wife; whereas her husband, 
 if of age, would not be entitled to do so. Notwithstanding that 
 the balance of convenience in certain cases would permit her 
 marriage with an adult to end her wardship, yet in the main the 
 uniform rule that her marriage with an adult or minor should 
 have no effect on her status of ward, so far as her property was 
 concerned, would be of greater advantage. 
 
 b. Marriage of Female G^tardian. — Under the common law, when Marriage of 
 a female guardian in socage married, her guardianship was prac- guardian. 
 tically determined, because her husband took upon himself jure l° socage. 
 Tnariti the oflBce of guardian. But now, under the Married 
 Women's Property Act, 1882,' marriage would give no such 
 
 right to the husband to assume the office. In the case of a female Testamentary 
 testamentary guardian, her marriage does not put an end to her 
 office ; " if a, feme guardian marry, the guardianship is not trans- 
 ferred to the husband, nor shall it be forfeited by the attainder or 
 misdemeanor of the husband." ^ If the marriage of the testa- 
 mentary guardian was likely to prejudice the interests of the 
 ward, the Court now would supersede or remove the guardian.* 
 It ought to appear to the satisfaction of the Court that it would be 
 to the ward's benefit to continue to reside with the married guar- 
 dian.' When a female guardian appointed by the Court of 
 ■Chancery marries, her guardianship is suspended, and a reference 
 as of course is made to inquire whether or not under the altered 
 circumstances she should or should not be continued in her office ; 
 and where no harm is likely to ensue it is usual to confirm her 
 appointment.^ 
 
 c. Besignation of Guardian. — Guardianship in socage is a trust Resignation 
 reposed in the next of kin by the law, and could not be refused," in^gLe™ 
 nor resigned when acted upon. The socage guardian could not 
 
 resign his office nor assign it ; '' the guardian in socage has no 
 
 interest of profit, it is an interest of honour .... committed to 
 
 the next of kin, and is therefore inherent in the blood, and can't 
 
 be assignable.* Where testamentary guardians have accepted the Testamentary 
 
 office, it has been laid down that they will not be discharged of ^"*' ^*°^" 
 
 their trust upon their own application, and that the Court will 
 
 compel them to act, because, being trustees, they cannot resign 
 
 their office at wUl, and they will not be allowed to vacate it 
 
 except for strong and urgent reasons.' But as it cannot be for 
 
 ^ 4S & 46 Viot. c. 75, s. 24. ■■' Com. Dig. Gard. 384. 
 
 ^ 49 & 50 Vict. c. 27, ss. 2, 6, 13. * Jones v. Powell, 9 Beav, 345. 
 
 ^ Be Oornall, 1 Beav. 347 ; Jones v. Powell {uhi sup.). 
 ^ See Bedell v. Oonstdble, Vaugh. 177. 
 ' Statute of Marlbridge, 52 Hen. HI. 0. 17. 
 
 8 Per Lord Commissioner Gilbert in Syre v. Countess of Shaftesbury, Gilb. Eq. 
 Kep. 172, 177. " Spencer v. Earl of Chesterfletd, Amb. 146. 
 
 2 K 
 
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626 
 
 GUARDIAN AND WARD. 
 
 [part III, 
 
 Chancery 
 guardian. 
 
 Guardianehip 
 cannot be 
 delegated. 
 
 the infant's benefit to continue him in the care of a negligent or 
 reluctant guardian, it is difficult to see how the Court can avoid 
 transferring the custody and control of the ward to another; and, 
 consequently, the Court has practically permitted the guai'dian to 
 resign his trust/ and appointed another guardian on the applica- 
 tion of the infant for that purpose.^ But where a testamentary 
 guardian has altogether declined to act, it is not necessary to- 
 remove him by a suit brought for that purpose, and it is sufficient 
 to petition, if requisite, for the appointment of a new guardian.' 
 A guardian appointed by the Court of Chancery who accepts the 
 office is a trustee, and cannot renounce or resign his trust, unless 
 he obtain the sanction of the Court to lay down his office ; for 
 it would be unreasonable that having once undertaken the duties 
 of guardian, he should be allowed at his own caprice to relieve 
 himself of the burden, to the probable detriment of his ward. If 
 he has valid grounds for retiring, he ought to seek the aid of the 
 Court in releasing him from his obligations which he voluntarily 
 assumed. 
 
 For the like reason that guardianship is a trust and a. 
 personal confidence, a guardian, whether testamentary or ap- 
 pointed by the Court of Chancery, cannot delegate his duties 
 and office to another. If he attempts to do so, his responsibility 
 remains unafiected, and he must account with his ward as though 
 he had not endeavoured to divest himself of his duties and 
 liabilities." 
 
 Removal or 
 supersession 
 of guardian. 
 Improper 
 conduct. 
 
 {l) By Removal or Supersession of Guardian for Improper Gonducl 
 
 The Court of Chancery alone has the power to remove or 
 supersede guardians from their trust by reason of their improper 
 conduct, or the interest of the wards sufEering if they were con- 
 tinued in their office. This jurisdiction is exercised by the Court 
 in virtue of the delegation to it of the duty of the Crown as 
 parens patrice to superintend and protect the interest of infants.*^ 
 Natural guardians, such as the father or mother, or legal guar- 
 dians, as those in socage, do not require to be formally removed' 
 by the Court, for the appointment of a guardian by the Court to- 
 take their place operates as a removal or supersession. A testa- 
 mentary guardian can now be actually removed, and not merely 
 superseded, or directed to conform to a particular line of conduct.^ 
 A guardian appointed by the Court can be removed by the 
 
 2 Bx parte Champneys, Dick. 350. 
 
 Bpencer v. Earl of Chesterfield, Amb. 146. 
 O'Keefe v. Oasei/, 1 Sell. & Lef. 106. 
 See Turner v. Cornell, 5 Beav. 517. 
 See ante, cbap. iii. p. 619 ; 49 & 50 Vict. 1 
 
 27 
 
 ' See ante, cbap. ii. p. 602. 
 ss. 6, 13. 
 
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CHAP, iv.] TERMINATION OF OFFICE. 627 
 
 Court, but before he can be removed or superseded, a formal 
 application to the Court of Chancery for that" purpose must be 
 made. The grounds and method of removal or supersession are 
 given elsewhere.' 
 
 The remedies of a ward against his guardian are both legal and Remedies 
 
 . , , against 
 
 equitable. guardians. 
 
 (i) At Law. a. If the ward was so treated by the guardian as At law. 
 to render his custody of him practically an illegal detention, the As regards the 
 infant could have his remedy by habeas corpus. 
 
 h. The three common law remedies which the infant had against As regards 
 his guardian are now either abolished or obsolete, so that it is not 
 necessary to do more than state what they were. 
 
 i. The action of waste, which was to prevent waste where a Action of 
 guardian wasted an infant's property or allowed a stranger to do 
 so, but it must be voluntary, and not merely permissive waste. ^ 
 This action has been abolished,' and the legal remedy for waste is 
 now by action of trespass. 
 
 ii. The action of novel disseisin was brought where the Action of 
 guardian aliened his ward's estate. This has been also "^efn. '^ 
 abolished.'' 
 
 iii. The right of bringing an action of account is still in Action of 
 existence, but has fallen into desuetude : accounts are now taken *°°°''" • 
 by a like action in Chancery. This action could not have been 
 brought during the continuance of the guardianship.^ 
 
 (2) In Eqidty. a. The power of the Court of Chancery to in equity, 
 remove or supersede the guardian, when the interests of the ward As regards the 
 demand it, have already been given in the preceding chapter. ^ ^^°^' 
 
 h. The Court will see that the fiduciary relation of guardian and As regards 
 ward is properly exercised, and will do all in its power to remedy 
 and repair a breach of trust ; thus, it will direct and insist upon 
 an account between the parties, and reinstate as nearly as possible 
 the ward in his original position, if the trustee has failed to per- 
 form his trust and duties properly.^ 
 
 The respective rights of guardian and ward on the termination 
 of the guardianship are set out in a later chapter.' 
 
 ^ Ante, chap. iii. pp. 619, 620. ^ Simp. Inf. 453. 
 
 " 3 & 4 Wm. IV. c. 27, s. 36. '' Ibid. = Co. Litt. 89 a. 
 
 ' Siiepost, chap. vii. '' Ihid. 
 
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CHAPTER V. 
 
 EIGHTS AND DUTIES OF GUARDIANS IN EESPEOT 
 OF THE PERSON OF THE WARD. 
 
 PAGE 
 
 Right op Guardian to Caee and Custody of Waed . 629 
 
 Ebmbdies of Guardian 630 
 
 Contest between Testamentary Guardian and Mother 
 
 or other Relatives 630 
 
 Right op Guardian to Change Domicil of Ward . . 631 
 -Difference between Eights and Duties of Parents and 
 
 Guardians .... .... 632 
 
 Guardian cannot Maintain Action for Seduction op 
 
 Ward . . 632 
 
 Duty op Guardian to Protect Ward .... 633 
 
 Duty op Guardian to Educate Ward .... 634 
 
 Wishes op the Father to be Followed . . . 634 
 
 Duty op Guardian in Respect of the Marriage of Ward 635 
 
 JIaintenance of Infants 636 
 
 Right op Infant to be Maintained out op his Pro- 
 perty 636 
 
 Interest op the Donee must be Vested in Possession 637 
 
 Gift of Interest vests the Legacy .... 638 
 No Maintenance where Gift Vested, but Payment 
 
 Postponed 638 
 
 Except where Donor Parent or in Loco Parentis . 639 
 ■Ob There is a Gift to a Class, some op whom must 
 
 Take .... 640 
 
 Gift op Income poe the Maintenance op Children . 642 
 PARENT Absolutely Entitled, oe only Trustee foe 
 
 Children 642 
 
 Powers op Trustees and Guardians under Lord 
 Cranworth's Act, and the Conveyancing and 
 
 Law of Property Act, 1881 643 
 
 Income may be Applied por " Benefit " op Infant . 645 
 
 DiPPERBNCE between A TRUST POR MAINTENANCE AND 
 
 A Power 647 
 
 Maintenance not usually Given to a Father foe 
 
 SUPPOET OP Childeen 647 
 
 Except in case op Inability on his Part . 647 
 
 Or the Fund is given to him by way of Bounty 648 
 Or wheee the Trustees are bound to Allow 
 
 HIM A Sum for their Support ... 648 
 
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CHAP, v.] RIGHTS AND DUTIES OF GUARDIAN (personal). 62!) 
 
 PAGE 
 
 Maintenance Allowed where Children Taken out of 
 
 Custody op the Father 650 
 
 Liability op Married Women 650 
 
 Amount op Maintenance Allowed 650 
 
 When the Court will bre \k in upon the Principal 
 
 Past Maintenance 651 
 
 Cesser op Maintenance 653 
 
 Advancement — Dipperence between Advancement and 
 
 Maintenance 653 
 
 Powers op the Codrt to Advance larger than those 
 
 OP Trustees 654 
 
 Advancement under a Power 655 
 
 Advancement in the Absence op a Power . . . 656 
 
 Application for Maintenance and Advancement, How 
 
 made 656 
 
 Guardian not Discharged by mere Payment to Co- 
 guardian 657 
 
 The relationship of guardian and ward, like that of parent and 
 child, creates certain rights in the guardian, and at the same time 
 involves certain duties on his part connected with the person of 
 the ward. These rights and duties will be considered in this 
 chapter. 
 
 Right of Guardian to the Care and Gtcstody of the Ward. — Nature Right of guar- 
 herself suggests that those who are of young and tender years and custody 
 should be under the care and protection of the strong until the "^ ^'^'^'*" 
 time comes when they are able to take care of themselves, and 
 engage on an equal footing in the affairs of life. The parents of 
 young children are pointed out by nature as their most proper 
 guardians ; when they are removed their place is taken by other 
 guardians, who are required by society to act in all respects 
 towards their wards like good and prudent parents. The care 
 and custody of children are intrusted to the natural parents, 
 on the presumption that they will carry out their sacred trust 
 in the highest degree, and as dictated by nature and required 
 by a well-ordered society. So, as a rule, properly appointed 
 guardians are entitled to the legal care and custody of their 
 wards, not only as against the world at large, but as against 
 the immediate relatives of the wards.' Thus, if an infant 
 during the lifetime of its parents is made a ward of Court, and 
 the Court of Chancery appoints a guardian to him, the latter is 
 entitled to his care and custody even as against the parents ; or 
 if a father has by his will appointed a guardian for his children, 
 the guardian has a claim to their care and custody ^ but not now Even as 
 paramount to that of their mother,^ but she shares the responsi- mother. 
 
 1 Re Andrews, L. E. 8 Q. B. 153 ; S. C. 42 L. J. Q. B. 99. 
 ^ Eyre v. Countess of Slmfleshury, 2 P. Wms. 103. 
 ' 49 & 50 Vict. u. 27, s. 2. 
 
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630 
 
 GUAEDIAN AND WAED. 
 
 [PAET III. 
 
 Remedies of 
 guardians. 
 
 Habeis corpus. 
 
 Care and 
 custody of 
 infant under 
 control of the 
 Court. 
 
 Contest 
 between 
 testamentary 
 guardian and 
 motlier or 
 other relatives, 
 
 guardian 
 pHmd facie 
 entitled. 
 
 bility with the father's testamentary guardian.' So, in like 
 manner, if a mother has provisionally appointed by will a guar- 
 dian to her infant child, on her death, if the father is fonnd to be 
 a person who ought not to be sole guardian of his child, the 
 Court may confirm the provisional appointment of the guardian by 
 the mother,^ 
 
 In former days if the ward were taken out of the custody of 
 the guardian, a writ of ravishment of ward lay against the wrong- 
 doer ; ° and the modern remedy is the writ of habeas corpv^,* or 
 an application to the Court of Chancery.'* 
 
 To take a ward out of the custody of a guardian appointed by 
 the Court of Chancery is a contempt of Court which can be 
 punished by committal to prison. As in the case of natural 
 parents, so in the case of guardians, the question of the care and 
 custody of the person of the infant ward is in the discretion and 
 under the control of the Court of Chancery, which it will freely 
 exercise for the benefit and on behalf of the infant, either by 
 ordering him to continue in or be restored to the custody of the 
 guardian, or by permitting him to remain under the control of 
 some other person. The Court will also exercise its discretion in 
 matters appertaining to access to the infant ward. 
 
 A testamentary guardian has not now a superior claim to the 
 mother to the care and custody of the ward ; but if she clandes- 
 tinely remove it from out of his custody, and the interests of the 
 child would thereby suffer, she would be ordered to deliver the 
 infant up to him.' Though the Court will enforce the right of 
 the guardian to the custody of the children as against their 
 immediate relatives (because the effect of the appointment of a 
 guardian is to commit the custody of the ward), yet it looks with 
 great anxiety to the execution of the duty belonging to the 
 guardian, and the attention expected to be paid to the reasonable 
 wishes of the natural parent.' If a mother has obtained an order 
 for the custody of her children under 36 Vict. c. 12, and the 
 
 ' 49 & 50 Vict. u. 27, B. 2. ? Ihid, a. 3 (2). 
 
 2 3 Edw. I. c. 22 ; 13 Edw. I. c. 35 ; Macph. Inf. 4. 
 
 <■ Meg. Y. Greenhill, 4 Ad. & El. 624 ; Beg. v. Howes, 30 L. J. M. C. 47 ; S. C. 
 3 L. T. 467 ; Be Andrews, L. K. 8 Q. B. 153 ; S. C. 42 L. J. Q. B, 99. On a writ of 
 habeas corpus sued out by the guardian for the recovery of the ward, a common law 
 Court, when the legal title of the guardian to the guardianship of the ward is made out, 
 and the guardian is not an improper person for his office, and the child too young to 
 make a choice, can only make an order restoring the ward to the guardian, for the 
 guardianship carries with it the legal custody of the ward; and no other question can 
 be raised on the writ. Brett, M.R., in the recent case of Be Agar-EUis, Agar-Ellis 
 V. Lascelles, 24 Ch. D. 317, doubted whether either Division of the High Court 
 (Chancery or Queen's Bench) could entertain on the writ of habeas corpus any othe; 
 question than the legal custody of the infant. 
 
 " See Part II. Parent and Child, chap. ii. 
 
 " See Wright v. Naylor, 5 Madd. 77. 
 
 ' Per Eldon, L.C., in Ex parte Earl of llch ester, 7 Ves. 348, 380. 
 
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CHAP, v.] EIGHTS AND DUTIES OF GUARDIAN (personal). 631 
 
 father dies appointing testamentary guardians for his children, 
 
 her right to their custody would no doubt be held superior to that 
 
 •of the testamentary guardians not only up to the age of sixteen 
 
 but to their majority.' When the ward has attained to years of When wishes 
 
 discretion, and is capable of exercising a choice, the Court will ac^ded to. 
 
 lend weight to his or her wish to reside with one guardian rather 
 
 than another ; " and even to reside with one who is not a 
 
 guardian, if harm is not likely to flow from the choice, and mere 
 
 residence with another not in a tutorial capacity does not terminate 
 
 the guardianship.' But where the infant ward has not reached 
 
 an age at which it can be deemed capable of exercising a wise 
 
 choice, the Court will refuse to listen to expressions of choice made 
 
 by the child.^ 
 
 RigM of Guardian to Change the Domicil of the Ward. — Imme- Right of 
 diately arising out of the foregoing considerations comes the fhang'*domi- 
 important question of the right of the guardian to change the °ii of '^*'^^- 
 domicil of the ward. This point cannot arise with reference to 
 wards of Court, because the Court of Chancery will not (as will 
 be seen more particularly on a later page)," except for good 
 reasons, permit its wards to be taken out of the jurisdiction. The 
 great objection to changing the domicil of the ward proceeds from 
 the fact that the right of succession to the personal property of 
 the ward may be affected considerably in favour of the guardian. 
 A person under age being not sui juris, cannot acquire propria 
 marte a domicil for himself or herself. An infant's domicil is, 
 daring the lifetime of its father, the same as, and changes with, the 
 domicil of the father. It has been held that where the father died, 
 and the mother became guardian of her children, and she acquired 
 a new domicil, and there was a complete absence of fraud in the 
 change, her children's domicil changed with hers, even though 
 her rights of intestate succession to the property of some of her 
 deceased children were enlarged." It is now settled that if 
 after the death of the father an unmarried infant lives with its 
 mother, and the mother acquires a new domicil, it is communi 
 cated to the infant.' Can a guardian, not a parent, change 
 the domicil of the ward ? This question has never yet been put 
 and answered in the English Courts ; but the better opinion of 
 English and foreign writers is that the guardian has not the Eight not 
 power to change the domicil. Thus Story writes : ' "In the * ™' ® • 
 
 ^ See Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27). 
 
 2 Storhe v. Storke, 3 P. Wms. 51. 
 
 ^ Anon. 2 Ves. Sen. 374 ; Bridget Hide's Case, 3 Salk. 178. 
 
 * Beg. V. Cla/rle, 26 L. J. Q. B. 169. ' Post, Pavt IV. chap. v. 
 
 * Potinger v. Wightman, 3 Mer. 67. 
 
 ' Per Lord Campbell in Johnstone v. Beatlie, 10 CI. & F. 42. 
 
 * Conf. Laws, s. 506 n. 
 
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632 
 
 GUARDIAN AND WARD. 
 
 [part m. 
 
 Domioil of 
 ward fixed by 
 father's death. 
 
 Difference 
 between rights 
 and duties of 
 parents and 
 guardians. 
 
 Guai-dian can- 
 not maintain 
 action for 
 seduction of 
 ward. 
 
 case of a change of domidl by a mere guardian, not being a 
 parent, it is extremely difficult to find any reasonable principle 
 on which it can be maintained that he can, by any change of 
 domicil, change the right of succession to the minor's property." 
 Dicey, in his work on Domicil, is of opinion that the Continental 
 view, that the minor's domicil is fixed by the father's death, and 
 cannot be changed during minority by the mother or guardian, 
 except by act of law, ought to prevail.' 
 
 Though the guardian is in loco parentis, it is only in a modified 
 sense ; thus, while he might under certain circumstances be 
 allowed to bind his ward out as an apprentice, he could not 
 claim any right to his earnings or personal services as a parent 
 might.^ The guardian is not liable for necessaries supplied to 
 his ward unless he has personally authorized their supply, and 
 the mere fact of his knowing that his ward was in possession of 
 the goods furnished would be insufficient to fix him with personal 
 liability. If he has furnished his ward with necessaries, he will 
 be allowed to recoup himself out of his ward's fortune and means. 
 But if he permitted his ward to purchase that which was not a 
 necessary, he and not the ward would be liable for the price of. 
 the goods. His position towards the ward is wholly fiduciary 
 and temporary ; he is under no legal liability to support hira out 
 of his own means, and as trustee he could make no profit out of 
 his oflSce by putting the ward out to service and taking his wages. 
 So a guardian could not maintain an action for damages in his 
 tutorial capacity for loss of services consequent upon a tort com- 
 mitted against his ward ; thus, if a female ward were living in 
 the house of her guardian and were seduced, he would not, it is 
 submitted, like the father, or mother, or even aunt,' be able to 
 sustain an action for the seduction grounded on the loss of the 
 services of the ward ; because it would be impossible to uphold a 
 mere constructive relation of master and servant between them. 
 
 ' Dom. p. loi, ?(. On p. lOO of the same voik, this learned writer has the 
 following valuable observations : '' It is possible that the domicil of an orphan follows 
 that of his guardian But whether ihis be so or not is an open question. In the firai 
 place, it may be doubted whether the rule is not rather that a ward's domicil can ba 
 changed, in some cases, by his guardian, than that it follows the domicil of his guardian. 
 It is difficult to believe that the mere fact of B's guardian acquiring for himself a 
 domicil in France, can deprive D, the son of a domiciled Errglishman, of his English 
 domicil. In the second place the power of a guardian to change at all tlie domicil of 
 his ward is doubtful. In the one recorded English case on the subject (Potinger v. 
 Wightman), the guardian was also the mother of the childreij. As a matter of 
 common sense, it can hardly be maintained that the home of a ward is, in fact, or ought 
 to be, as a matter of convenien-e, identified with the home of his guardian in the same 
 way in wliich the home of a child is naturally identified with that of its father. Shonld 
 the question ever arise, it will probably be held that a guardian cannot change the 
 domicil of his ward, and almost certainly that he cannot do this unless the ward's 
 residence is as a matter of iact that of the guardian." See Se Beaumont, [1893] 
 3 Ch. 490. ^ See Part II. Parent and Child, chap. ii. p. 531. 
 
 ■• EdmorKlsim v. Machell, 2 T. E. 4. 
 
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CHAP. V.J EIGHTS AND DUTIES OF GUARDIAN (peesonal). G33 
 
 The guardian, as such, is not entitled to demand the services of 
 his ward, and acts of service rendered to him by the ward would 
 be insufficient to ground the action.' It might be otherwise 
 if the actual relation of master and servant existed between 
 the guardian and ward, and wages were paid for her services. 
 Another reason for the guardian not being able to maintain the 
 action, is that though he would have to allege damage by reason 
 of loss of service, he could not retain the damages recovered.^ 
 If, after attaining her majority, the girl (no longer a ward) were 
 to continue to live with her former guardian, rendering him slight 
 services, and was seduced, it might be held that the relation of 
 master and servant was sufficiently constituted to entitle him to 
 maintain the action on account of the loss of services. It is 
 quite clear that if the ward was not living in the house of her 
 guardian, he could not bring this action. 
 
 If the ward commit a tort, to which in no respect was the Guardian not 
 guardian a party, the latter would not be held liable for it. oTwaid. 
 
 Duty of Guardian to Protect Ward. — It is an obvious duty onDutyofguar- 
 the part of a guardian to shield and protect the young and ^^rA° ^'° ^^ 
 defenceless ward, and any breach of that duty which tends to the 
 detriment of the child's health will be punished as a crime. Thus 
 " any person over sixteen years of age, who, having the custody, 
 control, or charge of a child, under the age of sixteen, wilfully 
 assaults, illtreats, neglects, abandons or exposes such child, or 
 causes or procures such child to be assaulted, illtreated, neg- 
 lected, abandoned, or exposed, in a manner likely to cause 
 such child unnecessary suffering or injury to its health," is liable 
 to be punished,' and on his conviction for such offence, or any 
 offence involving injury to the child, and punishable with penal 
 servitude, the child may be ordered to be taken out of his custody 
 and given over to some person who is willing to undertake such 
 charge.^ Again, where a guardian causes, encourages, or favours 
 the prostitution of a female ward under sixteen, he may be divested 
 of all authority over her,'' and the Court may appoint some person 
 
 ' In the American case of Blanchard v. llsley, 6 Lathrop, 487 (Mass.), it was held 
 that a guardian, as such, cannot maintain an action for the seduction of his ward, on 
 the ground that guardianship carries with it no right to the service of the ward, and no 
 obligation to support her except to the extent of the property belonging fo her which comes 
 to his hand. In the English case of Irwin v. Dearman (n East, 23), the adoptive 
 parent was held entitled to recover for the seduction of the girl, not only because he was 
 in loco parentie, but because there had been an actual loss of service to which he was 
 entitled. 
 
 ^ It is well known that the damages recovered in this action are sentimental rather 
 than actual — as a punishment of the wrong-doer ; now the guardian, being in a 
 fiduciary position towards his ward would not be allowed to leap any advantage or 
 profit from his position, and if he cannot recover damages, he cannot sustain the 
 action. ^ 57 & 58 Vict. u. 41, o. i. ■* Sect. 6. 
 
 '' See Waller v. Laxton, 70 L. T. 690. 
 
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63-1 GUAKDIAN AND WARD. [i'abt hi. 
 
 willing to take charge of her till she reaches majority or a less 
 age.' 
 Duty of guar- Duty of Gioardicm to Educate the Ward. — The guardian is not 
 wfu-ti. only entitled to the control and custody of the ward, but also to 
 
 regulate the mode and select the place where the ward is to be 
 educated. It is his duty to choose a proper school or place of 
 education, and if he does so, and his ward refuses on no reasonable 
 grounds to go there or stay there, the Court will compel him to 
 obey his guardian's wishes.^ The Education Acts of 1870 and 
 1876,'' compel the guardian to see that his ward receives a 
 sufficient elementary education ; but it is his duty to do more 
 than that and to educate him in a manner suitable to his rank 
 and expectations.'' In this respect the law requires more of 
 the guardian than of the father; for the latter, if he keeps the 
 education of his child in his own hands, is not bound to give 
 him a better education than that insisted upon by the law ; while 
 the guardian would be committing a breach of his trust if he did 
 not educate his ward in a manner which his station and fortune 
 Wishes of the Warranted.^ The wishes of the parents as to the mode in which 
 fo*Uowed° ^^ til® '^^^^ is to be educated, and as to the religious faith in which 
 it is to be nurtured, are to have all deference paid to them, and 
 the law, which permits the parents to appoint the guardians of his 
 children, will pay the highest respect to the expression of their 
 wishes as to the mode of their education." " The rule of the 
 Court is, that the Court, or any persons who have the guardian- 
 ship of a child after the father's death, should have sacred regard 
 to the religion of the father in dealing with the child, to see that 
 the child is brought up in the religious faith of the father, what- 
 ever that religious faith may have been;'" and where a father 
 appoints as testamentary guardian a person of his own religious 
 faith, it is a clear intimation that he wishes his child to be 
 brought up in his own faith ;^ and where he has left no in- 
 structions as to the faith in which his children are to be educated 
 the Court will presume that he intended they should be reared 
 in his own faith." The Guardianship of Infants Act, 1886, does 
 not alter this right of the father to decide in what religious faith 
 his child shall be brought up, though under the Act the sur- 
 viving mother becomes its guardian, and is of a different religious 
 
 ' 48 & 49 Vict. 0. 69, s. 12. 
 
 2 Sail V. Hall, 3 Atk. 721 ; see also Tremame's Case, 1 bira. 173. 
 
 3 33 & 34 Vict. c. 75, s. 3 ; 39 & 40 Vict. c. 79, s. 4. 
 
 * Pel' Lord Thnrlow in Powel v. Cleaver, 2 Bro. C. U. 499, 510. 
 5 See anfc, Part II. Parent and Child, chap. ii. p. 521. ^^ . „ , ,7 
 " Campbell v. Mackaij, 2 My!. & Cr. 31, and per .lames L.J. mSawlmm-th v. 
 Hawksworth, L. E. 6 Ch. App. 539, 542- ' ^e. Kaye, L. B. I Ch. App. 3»7- 
 
 8 Talhot V. Earl of Shreioshury, 4 M;l. & Cr. 672. 
 " HawlMWorth v. Bawhsioorth (nbi sup.). 
 
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CHAP. V.J RIGHTS AND DUTIES OF GUARDIAN (personal). 636 
 
 faith to that of its father.' But, on the other hand, where he except when 
 dies without such instructions, and there are strong indications doned his 
 that he had abandoned his right to have them educated in his "S^^^- 
 own faith, the Court will direct that those in control of them 
 should bring them up in that religion in which their father 
 during his lifetime permitted them to be educated.' No pecuniary 
 benefit to the infant will sway the Court one way or the other, 
 for the religious faith in which a child is to be brought up is no 
 matter of barter in the Court.^ At one time the Court refused 
 to admit parol proof of the intention of the wishes of the father, 
 whether he left testamentary guardians or not ;* but the practice 
 was soon changed, and Lord Hardwicke admitted parol evidence 
 of the intentions of the father,* and since his time it has always 
 been the practice to gather the wishes and intentions of the parent 
 from any available trustworthy source.* 
 
 Where there is any difference between the guardians as to the Application to 
 mode of educating their wards, they should at once apply to the ggjue aiffer- 
 Court, which will assist them. But the Court will exercise its ^^^^Ij^^'j^"^" 
 own discretion in the matter, and will not consider itself bound 
 by the wishes of the majority.' 
 
 Duty of the Guardian in Respect of the Marriage of the Ward. — Duty of 
 A guardian should act in respect of the marriage of his ward like ^sp^Bot of "* 
 a good and prudent parent, and in every way endeavour that the marriage of 
 marriage should be one befitting the rank, fortune, and expecta- 
 tions of the ward. It is his duty to prevent improper unions, 
 and if he deems himself unable to prevent mischief, he should 
 apply to the Court of Chancery for assistance, which will be 
 afforded him if necessary.* If the guardian (even a testamen- 
 tary one) connive at an intended unequal marriage of his ward, 
 the Court will interfere, and intrust the ward to the custody of 
 another, more likely to do jastice by him." A guardian of a Guardian of a 
 ward of Court is in a sense an officer of the Court, and directly ^ ° *^''"'''- 
 under its control, and must report to the Court the fact that its 
 ward is contemplating a marriage. He must use every means of 
 ■discouraging an unsuitable connection. The guardian's consent 
 to the marriage of a ward of Court is insufficient, and a marriage 
 with only his consent does not render it less a contempt, unless 
 the leave of the Court be first obtained ; it is equally so in the 
 
 ^ Be Scanlan ^Infants), 40 Ch. D. 200 ; and see 52 & 53 Vict. c. 56. 
 
 2 Be Clarke, 21 Cli. Div. 817. 
 
 3 Per Lord Cottenhani, in Talbot v. Earl of Shrewsbury [vhi sup.). 
 
 * Starke v. Storke, 3 P. Wms. 51. 
 
 ' Anon, 2 Ves. Sen. 56. This case was decided twenty years after Storke v. Storke. 
 , * See Be Clarke {vhi sup.). 
 , ' Macph. Inf. 121 ; Storlce v. Storke [ubi sup.). See 49 & 50 Vict, c, 27, s. 3 (3). 
 
 * Lord Baymond's Case, C.ie. t. Talb. 58. 
 
 ^ Vernon, v. Vernon, cited in Lord Baymond's Case (ubi sup ). 
 
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636 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Maintenance 
 and advance- 
 ment of 
 iufants. 
 
 Maintenance. 
 
 Bight of infant 
 to be main- 
 tained out of 
 his property. 
 
 case of an attempted marriage. The grounds for the interference 
 of the Court are more fully set out in the chapter on Wards of 
 Court.' 
 
 Mainteimnce and Advancement of Infants. — It has been thought 
 fit to treat these two subjects, viz., the maintenance and advance- 
 ment of infants, in this chapter ; because, though common to a 
 certain extent to more than one division of this work, they inti- 
 mately concern the personal advantage and position of the infants, 
 and as dispositions of their property are governed chiefly by the 
 rules relating to the administration of trust estates. 
 
 It is the duty of the guardian (parent or not) to protect and 
 rear and educate his ward, and generally to advance his interests 
 to the best of his ability and means at his disposal. But except 
 in the case of the natural guardians, the father and mother, there 
 is no legal liability or duty to support and maintain the ward cast 
 upon the guardian ; the latter is in no way bound to take his 
 own means to support the ward. If the ward has a fortune or 
 means which can be devoted to his support and maintenance, it 
 is a sufficient discharge of his duty and trust if the guardian pro- 
 perly and duly apply them to the purposes for which they are 
 available. The question of the maintenance and advancement of 
 infants forms a large and important portion of the jurisdiction of 
 the Court of Chancery ; and the principles on which the Court acts 
 in making and sanctioning payments for the support and advance- 
 ment of infants will be set out in the foUowiug sections. 
 
 Where an infant has property of his own, and his father is 
 dead or is not able to support him, he may be maintained out of 
 the income oi his property (if his interest in it be absolute), by 
 the person in whose hands the property is, or a stranger may 
 maintain him ; and a Court of equity will allow all payments 
 made for this purpose, which can be shown to have been proper 
 and reasonable.^ The Court of Chancery, exercising its well- 
 established equitable jurisdiction over matters pertaining to infants, 
 has full control over their property, whether real or personal, and 
 has authority to give maintenance to infants out of their pro- 
 perty, in some cases even where their interest is only contingent, 
 or where accumulation is expressly directed ; to refuse to allow 
 maintenance, even if given by the instrument of donation, and to 
 ascertain and fix the amount to be allowed, whether placed in the 
 discretion of third parties or not ; to direct to what persons 
 maintenance shall be paid, and to control the application of it.* 
 
 1 See ]i)Ost, Part IV., Infancy, chap. v. 
 Husband and Wife, chap. vi. p. 87. 
 ^ Macph, Inf. 213. 
 
 For consent of gnai'dians, see Part I. 
 ' Simp. luf. 261. 
 
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€HAP. v.] RIGHTS AND DUTIES OF GUARDIAN (personal). 637 
 
 The Court has power to allow maintenance, though there is no 
 suit before it.' 
 
 The fact of the father or the mother of the infant being alive lufantumybe 
 ■does not affect its right to be maintained out of its own pro- during life of 
 perty ; thus, where infant children after the death of their father parents. 
 petitioned for an allowance of maintenance out of their fortunes, 
 maintenance was determined irrespective of the means of their 
 mother to support them out of her fortune.'' The sum granted 
 by way of maintenance is always in the discretion of the Court, 
 «,nd relative to the fortune and position in life of the infant,' 
 and the poverty or wealth of his father or mother (if any).'' If 
 the guardian is in any doubt as to what amount should be 
 ■devoted to the maintenance of the infant, he should apply to the 
 Court for directions. This does not relieve the father and mother 
 from their statutory liability to maintain their infant children, 
 but rather enables the children to be brought up and educated in 
 a manner which their expectations would reasonably warrant. 
 The Court will not make an allowance to a parent for the main- 
 tenance of a child for the time past, although it should appear 
 that, in fact, he had not been of ability to maintain him, and 
 although the will had expressly given the produce of a fund to 
 itrustees for his maintenance.* 
 
 Before the Court can order maintenance to be allowed there Maintenance 
 must be a clear fund which can be devoted to that purpose, a clear fund 
 iSuch fund may be the rents and profits of real estate ; " or the ^w devoted 
 income of personal property,' If the rents are insufficient to to tt^sit pi^r- 
 keep down charges on the property, maintenance out of them will 
 not be granted ; ' nor out of the income of personal property, 
 unless the Court is satisfied that it is clear from incumbrances 
 «,nd claims against it.' 
 
 Again, the interest of the donee of the fand must be vested in interest of the 
 possession. The vesting of an interest depends upon the construe- vestTd'in^* "^ 
 tion of the instrument creating the gift ; where the donee takes an possession. 
 immediate interest in the fund, whether the rents and profits of 
 real estate or a legacy, no question as to its vesting, and his being 
 entitled to the interest can well arise ; but where the gift is 
 ■dependent upon the happening of some contingency, as upon the 
 
 ' Ex parte Kent, 3 Bro. C. 0. 88 ; Ex parte Salter, ibid. 500. 
 
 " Douglas v. Andrews, 19 L. J. Ch. 69. ^ Harvey v. Harvey 2 P. Wms. 22. 
 
 * Boach V. Oarvan, 1 Ves. Sen. 57. 
 
 s And/rews v. Partington, 2 Cox, Eq. Cas. 223 ; Bill v. Chapman, 2 Bro. 0. C. 
 231. Under what circumstances the father will be allowed a sum for maintenanpe out 
 •of his children's fortune, see pout, pp. 647 et seq. 
 
 * Be Howarth, L. E. 8 Ch. App. 415 ; but see Oadman v. Cadman, 33 Ch. D. 397. 
 ' Ramon v. JBamon, 39 L. T. 552. 
 
 " Pearce v. Brooks, cited Chamb. Inf. 257. 
 
 3 Warter v. , 13 Ves. 92 ; Wear v. Wilkinson, cited in Warter v. . 
 
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638 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Gift of interest 
 vests the 
 legacy. 
 
 Real estate. 
 
 No mainten- 
 ance where 
 gift vested, 
 but payment 
 postponed to a 
 fixed day. 
 
 donee attaining a certain age, it may be more difficult to deter- 
 mine whether the gift is vested in possession or not. It may be 
 stated as a general rule, that where it can be gathered from the 
 words of the instrument of donation that the donee is to take the 
 intermediate interest of a legacy contingent upon the happening 
 of a particular event, his interest in the fund is vested in posses- 
 sion,' for in such a case the gift of the entire intermediate income 
 accelerates the vesting, and makes it immediate ; ' so the giving of 
 maintenance may effect a vesting of the fund in possession ;' but 
 this gift of maintenance only vests the fund in possession where it is 
 the gift of the whole interest derived from the fund.'' It is the giving 
 the interest which is held to effect the vesting of the legacy, and 
 not the giving maintenance; but when maintenance is given, 
 questions arise whether it be a distinct gift, or merely a direction 
 as to the application of the interest ; and if it be a distinct gift, 
 it has no effect upon the question of the vesting of the legacy.' 
 Thus, a separate and distinct gift of maintenance, though it may 
 equal in amount the interest, will not vest the fund in possession.' 
 The mere fact that the vested interest of the donee is defeasible 
 in a certain event by a condition subsequent will not disentitle 
 him to the interest of the fund, and he will be entitled to main- 
 tenance till the happening of the event,' even in spite of a direction 
 to accumulate.' But a contingent bequest of chattels-real, or other 
 personalty not being residuary personalty, where the subject-matter 
 of the gift is not directed to be set apart from the rest of the 
 estate, will not carry the intermediate income ; ' though where a 
 specific legacy is vested at once in the legatee, but the enjoyment 
 only is postponed, the legatee is entitled to the intermediate 
 income."* So where a fund is appointed but the enjoyment of it 
 is postponed, it will carry intermediate income." 
 
 Beal Ustate.— The same principle is applicable to residuary 
 devises ; thus, a future residuary devise, or a devise subject to 
 prior limitations which may or may not take effect, will not carry 
 the intermediate rents and profits.'^ 
 
 Where the gift is vested, but the payment of it is deferred 
 
 until a fixed future day, maintenance will not be allowed out of 
 
 it, because it does not carry interest until the arrival of the day 
 
 1 Hanson v. G,-almm, 6 Ves. 239. " Be Byrne, 23 L-E. Ir. 260. 
 
 3 Pidsford V. Hunter, 3 Bro. C. C. 416 ; Fox v. Fox L. R. 19 Bq. 286. 
 * Spencer v. Wilson, L. R. 16 Eq. 501. ,,,.-, 
 
 5 Per Cottenham, L.C., in Watson v. Hmjes, 5 Myl. & Cr. 125, 133. 
 
 6 Watson V. Hayes (ubi s«P-)- ^ „ , „ . m 1 « p,. fiRS 
 ' See Taylor v. Johnson, 2 P. Wms. 504 ; Barber v. Baroer, 3 Myl. & tr. 688. 
 
 8 Stretch V. Watlins, I Madd. 253. ^ -, • r, ttt j- w j- 
 
 9 Guthrie v. Walrond, 22 Ch. D. 573 ; Per Kay, L.J., mBe Woodm, Woodm v. 
 Glass, [1895] 2 Ch. 309. " Be Woodin, Woodiu v. Glass (uhi sup.). 
 
 " Xo»<7 V. Ovenden, 16 Ch. D. 691. 
 
 12 Hodoson V. Fcn-l of Bective, i H. & M. 376 ; Wade-Gery v. Handley, 3 Cb. D. 
 374 ; Theo. Wills, 146. 
 
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CHAP, v.] RIGHTS AND DUTIES OF GUARDIAN (peesonal). 639 
 
 of payment ; nor will it be allowed where the gift of residue is 
 contingent, for the interest must accumulate until the happening 
 of the contingency.' Where an infant has a vested but defeasible 
 interest in a legacy, and accumulations are made out of its produce 
 not required for his maintenance, and his interest in it is divested 
 by reason of his death before twenty-one, his representatives, and 
 not those who ultimately become entitled to the property, are 
 entitled to the accumulations.^ 
 
 But to this rule there are exceptions ; where the donor of Exceptions: 
 the fund is a parent, or in loco parentis, and the donee is unpro- ^areS, or"fe 
 vided for. The Court in this case acts upon the supposition that '°°° i"'™"*''*' 
 the parent, or the person who has put himself in the position of 
 a parent, means the child to be supported notwithstanding the 
 postponement of the vesting of his interest ; thus, in the case of 
 real estate, where the rents are insufficient to keep down the in- 
 cumbrances, the Court will not suffer in favour of the remainder- 
 man all the surplus profits to be exhausted to discharge the 
 interest in exoneration of the estate, and leave the heir-at-law 
 to starve^; so, too, in the case of personal estate, as where a 
 legacy is vested, but not payable till a future day ; in such a 
 case the child has an immediate right to the interest of the 
 money .^ This is equally the case where the legacy is contingent, 
 though there is no direction as to interest, but there is as to main- 
 tenance.^ But where the testator has provided a fund for the 
 support and maintenance of the child, the latter will not be 
 entitled to intermediate interest on the contingent fund, the 
 presumption of its carrying interest by way of maintenance being 
 rebutted." 
 
 The ground of this exception has been thus stated : " In the 
 instance of a child, the Court does not postpone the payment of 
 interest till a year after the death of a parent, for the Court con- 
 siders the parent to be under an obligation to provide not only a 
 future but a present maintenance for his child, and therefore 
 holds that he could have postponed the time of payment only 
 from the incapacity of the child to receive, but that he never 
 meant to deprive him of the fruit of the legacy, which fruit is 
 the only maintenance, and which maintenance he was bound to 
 provide."' There does not seem to be any reason, in view of 
 recent legislation, why the gift of a mother, whether a widow or 
 
 1 Butler V. Freeman, 2 Atk. 58 ; Gotch v. Foster, L. K. 5 Bq. 311. 
 
 2 Be SucMey's Trusts, 22 Ch. D. 583. 
 ^ Sevel V. Wathiiison, i Ves. Sen. 93. 
 
 ^ Qreen v. Belcher, i Atk. 507 ; Seath v. Perry, 3 Atk. loi ; Crickett v. Dolbij, 
 3 Ves. 10. 
 
 ^ Chambers v. Goldwin, 11 Ves. i ; Martin v. Martin, L. E. i Bq. 369. 
 
 6 Hearlev. Greenhank, 3 Atk.717 ; Be George (an Infant), 5 Ch. D. 837. In this 
 case it was held that interest by way of mnintenance was presumed unless rebutted. 
 
 ' Per Lord Alvanley in Orichett v. Dolby, 3 Ves. 13. 
 
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•5*0 GUAEDIAN AND WARD. [paet iii. 
 
 not, who has become liable for the support of her children, 
 should not be affected by the above rule, and the exception ; and 
 it is probable that the Courts will construe the devises and 
 legacies of a mother to her children as being in pari Jure with 
 those of a father.' 
 foTo^°ar%f!s "^ P^rson in loco parentis is one who means to put himself in 
 
 *^e filiation of a father in reference to the duty of providing for 
 the infant beneficiary.^ Where the child resides with a father 
 and is maintained by him, that fact contains an inference, though 
 not a conclusive one, that the donor did not intend to place 
 himself in loco parentis.^ 
 
 This exception holds good not only where the gift is to a child 
 nominatim, but also to children as a class." But the child must 
 be unprovided for by the father or person in loco parentis the 
 whole or part of his minority, for " the implication is rebutted if 
 he provides any maintenance for the child, however small the 
 maintenance, and however large the legacy."* 
 %t\Tliu'' -A-nother exception is where there are equal legacies to a class 
 some of whom of children (even with a direction for accumulation), some of whom 
 Sryteile"*"" ^^^* eventually take the benefit of the legacies. The Court 
 under these circumstances, the chances of all or the survivor taking 
 being equal, will take the fund and maintain all out of the interest, 
 even though the donor is a stranger.^ This rule has been styled 
 " the allowance of maintenance on the principle of compensation," 
 for the " Court if it can collect before it all the persons who may 
 be entitled to the fund, so as to make to each a compensation by 
 the immediate maintenance given, for the diminution of the 
 fund to which he may eventually become entitled, will maintain 
 them all out of the interest." '' If the members of the class take 
 vested interests at birth in a fund which carries intermediate 
 income, such income is divisible among those members of the 
 class who are for the time being in existence, but only as from 
 the date of the birth of each.^ So, too, if the gift is to memberfe 
 of a class on attaining twenty-one of a fund which does not carry- 
 intermediate income, the guardians of those members of the class 
 who have not yet attained twenty-one may employ for their 
 maintenance the income of the share of each ; and each member 
 
 ^ See FowTtes v. JPaseoe, lo Ch. D. 474 ; Be Orme, Evans v. MaxweU, 50 L. T. 51. 
 
 2 Fowis V. Mansfield, 3 Myl. & Cr. 359. 
 
 ' Parsons v. Peters, 11 Jnr. N. S. 150^ 
 
 ^ Jn-cledon v. Nbrtheote, 3 Atk. 438 ; Brown v. Temperley, 3 Rubs. 263. 
 
 '■ Per Lord Eedesdale in Mlis v. JHUis, i Sch. & Lef. i, 5. 
 
 * Marshall v. Eolloway, 2 Swanst. 436. This exception is said to be a practice of 
 the Court only, and does not enahle trustees to apply the income when the estate is not 
 under administration ; Me Breed's Will, i Ch. D. 226. See Be Holford, Holford v. 
 Jlolford, [1894] 3 Ch. 30. 
 
 ^ IVTacph. Inf. 225. See the cases collected in Simpson on Infants, 274-283. 
 
 8 Shepherd v. Ingram, Arab. 448 ; Theo. Wills, 147. 
 
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CHAP, v.] EIGHTS AND DUTIES OF GUARDIAN (personal). 641 
 
 •on attaining majority, will be entitled to take his share of the 
 whole of the income.' 
 
 This principle will not be applied where the property is not given No mainteu- 
 absolutely to the children and the survivor, but in certain events lift^ove/to a 
 there is a gift over to a stranger,^ unless the Court can procure the stranger, 
 consent of all persons interested in the remainder.' The issue of 
 a child dying under age have been considered strangers,^ so, too, 
 a sister whose interest under a will was different from that of her 
 brothers and sisters, was deemed a stranger.' When the Court Unless consent 
 can obtain the consent of the parties in whose favour the gift over obtained^^' 
 is made, then it will order maintenance to be allowed.* Thus, 
 while the Court has power to make an allowance for maintenance 
 beyond that provided by the will of the testator, it yet will direct 
 that the interests of third parties, who may become entitled to 
 the fund out of which the increased allowance has been made, 
 shall be protected by holding the interests of the infants as 
 security for the amount of such increased allowance.' It is now 
 usual where the infant is allowed maintenance out of a contingent 
 legacy (the infant not being entitled to maintenance by the will 
 of the testator), to secure the interests of those entitled over by 
 insuring the life of the infant to an amount which will cover the 
 advances made by way of maintenance.' Where there is no legal 
 estate vested in the trustees who are to apply part of an infant's 
 presumptive share of real estate in maintaining him, yet they 
 have a legal power to enter upon the devised lands and take 
 sufficient profits to enable them to carry out the express power of 
 maintenance.' Where the corpus of a contingent legacy is Effect of sever- 
 directed to be set apart by a testator for the purpose of meeting f^^ forpu^^ 
 the legacy, then maintenance can be allowed out of the income 
 derived from the invested fund." But if there is an absolute 
 discretion in the trustees to devote the income to be derived 
 from the invested fund to the maintenance of the infant legatees; 
 no one infant has a vested interest in the fund till the happening 
 of the contingency which vests the fund in all." 
 
 ' See He Adams, Adams v. Adams, [1893] ' Ch. 329. He Solford, Holford v. 
 Holford, [1894] 3 Ch. 30. 
 
 ^ Ex parte KMle, 11 Ves. 604. ^ Cavendish v. Mercer, 5 Ves. 195 n. 
 
 * Turnery. Turner, 11 Ves. 606; Bee aho Urrington -v. Chapman, 12 Ves. 20. 
 
 " Exparte Kebble (ubisupX « Cavendish v. Mercer {uhi sup.). 
 
 ' Be Colgan {Infants), 19 Ch. D. 305. 
 
 _' Se ArbucUe, 14 L. T. 538 ; 2 Set. Dec. 849, where the form of the order for 
 maintenance, and directions for insurance of the life of the infant as an indemnity, is 
 set out ; De Witte v. Palin, L. K. 14 Bq. 251. 
 
 ' Dean v. Dean, [1891] Ch. 150. 
 
 i» Be Medhck, BuMe v. Medloch, 55 L. J. Ch. 738 ; Be Judkin's Trusts, 25 Ch.D. 
 743; Be Dickson, SiU v. Grant, 29 Ch. D. 331; Be Burton's Will, Banlcs v. 
 Heaven, [1892] 2 Ch. 38 ; Be Clements, Clements v. Pearsall, [1894] I Ch. 665 ; Be 
 Woodin, Woodin v. Glass, [1895] 2 Ch. 309. 
 " Be Coleman, Henry v. Strong, 39 Ch. D. 443. 
 
 2 S 
 
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642 ■ GUARDIAN AND WARD. [pakt hi. 
 
 But even where there is a gift over, maintenance will be- 
 allowed, if it can be fairly inferred that the testator intended to 
 give it.' 
 Gift of income Where a person is by the terms of the instrument of donation 
 tenanceof the donee of income for the maintenance of children, he will be 
 children. entitled to receive it for that purpose so long as he continues 
 
 properly to maintain them.^ And when he has a discretion to 
 exercise, he mnst exercise it in a fair and honest manner, and 
 if by his conduct he incapacitates himself from performing the 
 trust he will be entitled only to a share for his own main- 
 tenance.^ 
 
 Where a fund is given to a person impressed with a trust for 
 
 maintenance, it may properly be paid over to the donee, who is 
 
 accountable for the right application of it, but cannot be made 
 
 assignable for the benefit of his creditors without regard to the 
 
 interests of the children ; * but no account will be demanded 
 
 of such a trustee unless it can be specifically shown that he has 
 
 improperly disbursed it ; " and an honest exercise of discretion 
 
 will not be interfered with." 
 
 Parent ab- This question, whether a gift to a person for the purpose of 
 
 miedforTnly maintaining his children is an absolute gift of the devise, or 
 
 trustee for constitutes the donee only as trustee of the fund on behalf of the 
 
 ciiilurBDa " 
 
 children who become beneficially interested in it, not infrequently 
 arises. The answer must, of course, depend to a great extent on 
 the construction of the instrument creating the gift. Where 
 income is given to a parent for the support and maintenance 
 of his children, the parent is deemed only to be a trustee/ 
 Where the fund itself is given, the presumption is that an 
 absolute gift was intended,' and this must be rebutted by 
 words clearly expressive of a trust. Mere words of direction, as 
 that the fund should be employed for the maintenance of children, 
 will be deemed to express the motive of the testator rather than 
 to create a trust. The presumption in favour of a gift being 
 intended is much stronger in the case of a father than a mother, 
 
 ' Lambert v. Parker, G. Coop. 143. . . , -j 
 
 2 Hadou! V. Hadow, 9 Sim. 438. Where income of property la given to a widoT 
 for the maintenance and support of herself, and the maintenance, education and 
 support of her children, prmiJ/aciV, and in the absence of express directions, children 
 living with her are intended, and not married daughters or adult sons [Carr^.Umng^ 
 28 Beav. 644), more especiallv where such have hecome forisfamihated, and set up 
 independent homes for themselves. See Thoi~p v. Oioen, 2 Ha. 607. 
 
 3 Castle V. Castle, i De G. & J. 352- ^ ^ ^ . v .oR .■ 
 " Wetherell v. Wilson, i Keen, 80. See Brown v. Casamajor, 4 Ves. 49» , 
 
 Hamley v. Gilbert, Jao. 354. ^ Sora v. ffm'a, 33 Beav. 88. 
 
 6 Baikes v. Ward, 1 Ha. 445. ,^ , „ wt r i- ^ 7?. linnfl, 
 
 ' Carr v. Living (iM sup.) ; and see Wetherell v. Wilson {ubi stip.) ; Jie Jiootii^ 
 
 Booth V. Booth, [1894] 2 Ch. 282. 
 5 Tliorp V. Oicen {uhi sup). 
 
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CHAP. v.| RIGHTS AND DUTIES OP GUARDIAN (personal). 643 
 
 for when a fund is given in aid of the performance of a duty 
 which the donee is already legally bound to perform, it is a gift 
 to and a beneficial interest in the person to whom it is made.' 
 But the effect of the Married Women's Property Act, 1882, 
 would be to equalize this presumption, or at any rate to mate- 
 rially modify it. In the case of a gift from a testator to his 
 widow for the support of her children, the presumption in favour 
 of its being an absolute gift is very strong. Thus, where a 
 testator by his will desired that everything during the life of 
 his wife should remain as it was for her use and benefit, and 
 after her decease he gave his real estate to his male heir, and his 
 personal estate to his children, adding, " I give the above devise 
 to my wife that she may support herself and her children accord- 
 ing to her discretion, and for that purpose," it was held that the 
 widow took an • absolute interest for her life in the real and per- 
 sonal estate ; ^ so where a testator gave his estate to his widow 
 "to be at her disposal in any way she may think best, for the 
 benefit of herself and family," it was held that she took an 
 absolute interest in the gift.' It is the tendency of the modern 
 authorities to restrict rather than to extend the doctrine of pre- 
 catory trusts.* 
 
 Trustees or guardians directed to allow maintenance, or to Powers of 
 accumulate income, must follow strictly the words of the instru- t'iJavdkn™'^ 
 ments under which they are to act. But in order to save the ^^^^'^ Lord 
 
 1 • 1 T -11 A Granworths 
 
 insertion or many clauses in settlements and wills, an Act was Act, i860, and 
 
 passed in i860 (known as Lord Cranworth's Act)* which pro- *j|gi„g°g^Y 
 
 vided that " in all cases where any property is held by trustees ^^y "{ ^J"' 
 J ' 1 ■ p6r*y Act) 
 
 m trust for an infant, either absolutely, or contingently on his 1881. 
 
 attaining the age of twenty-one years, or on the recurrence of any 
 
 event previously to his attaining that age, it shall bo lawful for 
 
 such trustees, at their sole discretion, to pay to the guardians (if 
 
 any) of such infant, or otherwise to apply for or towards the 
 
 maintenance or education of such infant, the whole or any part of 
 
 the income to which such infant may he entitled in respect of stcch 
 
 property, &c." In the case of Be George " it was held that the 
 
 words " income to which such infant may be entitled in respect 
 
 of such property " did not apply to a case where an infant on 
 
 attaining twenty-one would not be entitled to interest on his 
 
 legacy till the time of payment. To obviate this effect and 
 
 enable trustees to have wider powers, unless they are expressly 
 
 forbidden by the terms of the instrument under which they are 
 
 ^ Byne v. Blaclcbvrn, 26 Beav. 41. ^ Thorp v. Owen (uhi su}].). 
 
 ^ Lambe v. Eames, L. R. 6 Ch. App. 597. 
 
 * Me AdamH and tlie Vestry of St. Mary Abbotts, Kensington, 27 Cb. D. 394. 
 ^ 23 & 24 Vict. >;. 145, 8. 26. ^ 5 Ch. D. 837. 
 
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644 GUARDIAN AND WARD. [part iti. 
 
 acting, this section of Lord C ran worth's Act was repealed by 
 
 Conveyancing section 43 of the Conveyaucing and Law of Property Act, 1881,' 
 
 Property Act, and was re-enactcd in the following words : — 
 
 ^^®'' (i) " Where any property is held by trustees in trust for an 
 
 infant for life, or for any greater interest, and whether absolutely, 
 
 or contingently on his attaining the age of twenty-one years, or 
 
 on the occurrence of any event before his attaining that age, the 
 
 trustees may, at their sole discretion, pay to the infant's parent or 
 
 guardian, if any, or otherwise apply for or towai-ds the iofant's 
 
 maintenance, education, or benefit, the income of that property, 
 
 or any part thereof, whether there is any other fund applicable to 
 
 the same purpose, or any person bound by law to provide for the 
 
 infant's maintenance or education, or not. 
 
 (2) " The trustees shall accumulate all the residue of that 
 income in the way of compound interest, by investing the same 
 and the resulting income thereof from time to time on securities 
 on which they are by the settlement, if any, or by law, authorized 
 to invest trust money, and shall hold those accumulations for the 
 benefit of the person who ultimately becomes entitled to the pro- 
 perty from which the same arise ; ^ but so that the trustees may, 
 at any time, if they think fit, apply those accumulations, or any 
 part thereof, as if the same were income arising in the then 
 current year.'' The word " property " does not (it seems) neces- 
 sarily mean " capital," but may refer to the income from which 
 the accumulations have arisen ; ' but where a vested life interest 
 is conferred a contrary intention not to convert the income of the 
 life estate into capital suflBciently appears." 
 
 (3) " This section applies only if and as far as a contrary inten- 
 tion is not expressed in the instrument under which the interest 
 of the infant arises, and shall have effect subject to the terms of 
 that instrument and to the provisions therein contained. A trust 
 to accumulate income during the respective minorities of the 
 members of a class is not a " contrary intention " within the 
 meaning of this sub-section.* 
 
 (4) " This section applies whether that instrument comes into 
 operation before or after the commencement of this Act." This 
 section applies only where the corpus of the contingent legacy is 
 directed to be set apart by the testator for the purpose of meeting 
 the legacy, whether the corpus is in the nature of residue,' or 
 
 2 ste Be S^kl^j's Trusts, 22 Ch. D. 583 ; He Jmlkin's Trusts, 25 Ch. D. 743. 
 
 3 Re Wells, Weils v. Wells, 43 Ch. D. 281. 
 
 * Be Humphreys, Humphreys v. Levett, [1893] 3 Ch. i. 
 
 <■ Be Thatcher's Trusts, 26 Ch. D. 426. 
 
 « Be Smith, Henderson-Boe v. Hitchins, 42 Ch. D. 302. 
 
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CHAP, v.] RIGHTS AND DUTIES OF GUARDIAN (personal). 645 
 
 otherwise.^ It does not apply where, in addition to the con- 
 tingencies mentioned in the statute, a further contingency, such 
 as that of surviving a particular person/ or where apart from the 
 Act the infant on attaining twenty-one would only be entitled to 
 the legacy without interest; ' or where the whole income is subject 
 to an express trust for accumulation.'' Where, however, a will 
 contains no maintenance clause but directs trust property to be 
 equally divided among the members of a class on attaining twenty- 
 one, the income of the share of each infant member is applicable to 
 his maintenance,^ even in a case where the membership of the 
 class is capable of increase." Up to the time of the interest of 
 any of the infants becoming vested in possession, the income of 
 the fund to which they are contingently entitled may be devoted 
 to their maintenance.' The provisions of this section may be 
 treated as incorporated into any will to which they are applic- 
 able for the purpose of determining whether a legacy to an infant 
 child carries interest.* 
 
 The efEect of this section is that it does not apply to property 
 the vesting of which is postponed beyond the age of twenty-one 
 years ; consequently, where it is so postponed, clauses for main- 
 tenance, education, and the like will be necessary.' The powers income may 
 of the trustees^ however, are enlarged, for they may apply the "benefit" o^ 
 income of the fund not only for the maintenance of the infant, infant- 
 but also for his " benefit," a much wider term. The trustees 
 under this Act will, it seems, be able to apply the income for the 
 benefit of the infant in cases where the income will go along with 
 the capital if and when the capital vests, but not otherwise.'" 
 The interest of the infant is the chief concern of the Court ; 
 thus, where he may be maintained out of one of two funds, he 
 will be maintained out of that fund which it is most for his 
 benefit to be applied for that purpose." In cases not strictly 
 within the provisions of these Acts, the trustee or guardian acts 
 on his own responsibility ; and it is therefore usual when there is 
 a necessity for an application on behalf of the infant, and no 
 power to authorize an allowance for maintenance, for the Court, 
 upon the application of the infant by his next friend, to make an 
 
 1 Be Medloch, Muffle v. Medloch, 55 L. J. Ch. 738 ; SeJudkin's Trusts {ubi sup.) ; 
 Be Dickson, Hill v. Grant, 29 Ch. D. 331 ; Be Burton's Will, Banks v. Heaven, 
 [1892] 2 Ch. 38. 2 Be Judkin's Trusts (ubi sup.). 
 
 ' Be Dickson, Hill v. Grant (ubi sup.). 
 
 * Be Alford, Hunt v. Parnf, 32 Ch. D. 383. 
 
 5 Be Stolfm-d, Holford v. Solford, [1894] 3 Ch. 30 
 
 ^ Be Jeffery, Arnold v. Burt, (No. 2), [1895] 2 Ch. 577. 
 
 ' Be Adams, Adams v. Adams, [1893] i Ch. 329. 
 
 8 Be Moody, Woodroffe t. Moody, [1895] i Ch. loi. 
 
 ' See Be Judkin's Trusts (ubi sup.). 
 
 ^0 Wolstenholme and Turner, Conveyancing and Law of Property Act, i8Sr, p. 103. 
 " Martin v. Martin, L. E. i Eq. 360. 
 
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6i6 GUARDIAN AND WARD. [paet ih. 
 
 order for his maintenance.' It is a rule that whatever expendi- 
 ture the Court would have sanctioned if applied to by the 
 trustees or guardians of the infant, if laid out by them without 
 application to the Court, will be allowed them on taking accounts.^ 
 This section being retrospective as regards wills or other 
 instruments made before it came into operation is not intended 
 to affect their construction.^ 
 Segregation As a guide to trustees and guardians who have the care and 
 
 residue carries maintenance of infants, the following principles are of great 
 interest. importance. The payment of interest on a contingent legacy (in 
 
 other words, the title to be maintained out of the interest of the 
 legacy) depends in many cases on the severance of the legacy 
 from the residue of the estate ; thus, where a legacy is severed 
 from the residue for the benefit of a tenant for life and a re- 
 mainderman, the legacy will carry interest for the benefit of the 
 remainderman from the date of the death of the tenant for life, 
 though the interest of the remainderman in the legacy is not yet 
 vested ; * and where a fund is directed to be invested and held 
 by the trustees on certain trusts, or is otherwise directed to be 
 set apart from the rest of the testator's estate, it will carry the 
 income which would be capable of being devoted to the mainten- 
 ance of the infant beneficiary.* 
 Income bear- Where there is a gift of a fund which carries intermediate 
 
 ing fund to . , 
 
 class. income to the members of a class who attain twenty-one, though 
 
 the first member who attains twenty-one is entitled to the income 
 of his share, yet he is not entitled to the income of the shares of 
 the other members who are minors, which income their guardians 
 would be justified under this Act in employing for their mainten- 
 ance.* 
 Control of Guardians having an allowance for maintenance, who duly 
 
 ^u"'di°^^'^ d S'^PPO^*' ^^^ maintain and support their wards, are not account- 
 trustees, able for their expenditure ; ' but the Court takes care that the 
 sums allowed for maintenance shall be properly applied, and has 
 full control over guardians and trustees ; and if it thinks that 
 trustees are allowing an insufficient sum, it can increase it, 
 though the trustees have a discretion in the matter.' The Court 
 
 1 Dan.Ch. Pr. 1122. 
 
 " Brown v. Smith, 10 Ch. D. 377, reversing 46 L. J. Ch. 866. 
 
 ^ Be Humphreys, Humphreys v. Levett, [1893] 3 *-"'■ '• 
 
 ^ Kidman v. Kidman, 40 L. J. Ch. 359. 
 
 ^ Be Medloclc, Buffle v. Medloelc, 55 L. J. Ch. 738 ; Be Clements, Clements v. 
 Fearsall, [1894] I Oh. 665 ; Be Woodin, Woodin v. Olass, [1895] 2 Ch. 309 ; Theo. 
 Wills, 153. In this last case the report of the case of Furneaux v. Buclcer, W. N. 
 1889, 135, was disapproved of. 
 
 " Bochford v. Mackman, 9 Ha. 475 ; Be Holford, Holford v. Holfm-d, [1894] 
 3 Ch. 30. ' Joddrell v. JoddreU, 14 Beav. 397. 
 
 " Re Hodges, Davey v. Ward, 7 Ch. D. 754. 
 
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CHAP. V.J RIGHTS AND DUTIES OP GUARDIAN (personal). 617 
 
 has a general control, "and where a fund was given to trustees 
 who were directed to pay the income to a mother to be applied 
 by her at her discretion for the benefit of her infant children, 
 and the Court thought she had not exercised a sound discretion, 
 it ordered the income to be paid to the father for the mainten- 
 ance of the infants.^ 
 
 Different consideration arise where trustees have a trust for Difference be- 
 maintenance and where they have a power. Where they have a for mainten- 
 trust, they have no discretion, but must carry out the terms of pg^g*""^ * 
 the instrument under which they are to act. Where they have 
 a power, then they have a discretion as to the amount and 
 method of application of the sum to be allowed for maintenance. 
 Under the foregoing Act trustees may apply at discretion any 
 income which in their judgment they deem proper, according to 
 the infant's age, for his or her maintenance or benefit, or pay 
 thereout any money to the infant's parent or guardian for the 
 like purposes. Where trustees have a power to apply all or any 
 part of the income of a trust fund for the maintenance and 
 education of an infant, and they exercise their discretion honestly, 
 the Court would not interfere except on very strong grounds.^ 
 But, as above pointed out, their discretion must be duly and 
 properly exercised. 
 
 As a general rule, maintenance will not be given to a father Mainteuauce 
 for the support of his children. The Court of Chancery recognizes ^ven^to^a'^ 
 the obhgation of a father to support his children ; and it is a '^^^^q/*"^ ^^^' 
 rule of equity that a power or trust for the maintenance of children, 
 infants is to be exercised and used with a view to the benefit of 
 the infants, and not for the benefit of the father ; and if the 
 father is able to maintain his children, it is not intended to 
 relieve him from the liability to do so.^ Thus, in general, the 
 Court will not take the property of the infants and make an 
 allowance out of it to their father for their maintenance ; ■* or, in 
 other words, where the property of the children is derived from 
 the bounty of a stranger, the father, if of ability to maintain his 
 children, is not entitled to any allowance out of the income for 
 that purpose.* But under certain circumstances, notwithstanding Exceptions. 
 an antecedent trust for accumulation, exceptions are allowed to 
 this rule. 
 
 Where there is Proved Want of Ability on the Part of the Father Proved want 
 
 to Support his Children. — If the father is not of ability, main te- part of father 
 
 1 Be Soper's Trusts, ii Ch. D. 272. '"S"'^' 
 
 - See -Se Loft house (are Infant), 29 Ch. D. 921. c > ™" 
 
 ^ See Wilson v. Turner, 22 Ch. D. 521 ; in which case Ransome v. Burgess 
 
 (L. R. 3 Eq. 773) was overruled on this point. See Be Bryant, Bryant v. ITichley, 
 
 {1894] I ^h. 324. ^ Fawkner v. Watts, 1 Atk. 406. 
 
 ^ Thompson v. Oriffin, i Cr. & Ph. 317. 
 
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 children. 
 
648 GUARDIAN AND WAED. [part ui, 
 
 nance will be allowed, though there be no express provision in 
 the gift for that purpose.' "Where he is in very poor circum- 
 Stanoea, or insolvent, no reference as to his ability will be made,'' 
 and where he is poor and the fund is small, the whole of the 
 dividends will be paid him ; ' and where he is in distressed 
 circumstances a liberal allowance will be made him.^ The terms 
 " ability " or " want of ability " are relative. " Where the 
 question turns upon the ability of the father to maintain the 
 child, the rule is not laid down upon the father's absolute insol- 
 vency only, but maintenance is given when the father is not 
 in such circumstances as to be able to give the child such an 
 education as is suitable to the fortune which he expects."* 
 Thus, in Jervoise v. Silk,^ the father had an income of £6000 a 
 year, but was allowed £1200 for the maintenance of his children; 
 so, too, in Raveloch v. Eavelock, Be Allan,'' General Havelock 
 was possessed of what was styled a " moderate income ; " his 
 children were devisees and legatees of a large fortune, the rents 
 and income of which were to be accumulated for twenty-on& 
 years; he was allowed ;^2700 a year for their maintenance. 
 Under these circumstances maintenance will be allowed, notwith- 
 standing a direction for accumulation;^ and not only maintenance 
 for the future will be allowed, but a sum for past mainte- 
 nance will be allowed to the parent.'' But there is no general 
 jurisdiction in the Court to disregard the trust for accumulation 
 even though there is no other way in which maintenance for th& 
 person who if living at the end of the period of accumulation 
 will be the tenant for life.'" 
 Tund given to Where a fund is expressly given to a father by way of bounty 
 of bounty7*^ for the maintenance of his children, he will be entitled to have 
 them maintained out of it, though of ability to support them ; " 
 thus, where a wife gave property to her husband in trust to 
 apply as much of it as he thought proper in maintaining and 
 educating their son, which the father did in a proper manner 
 and died, his estate was allowed so much of the income as he 
 had applied, though he was of ability to maintain him.'^ 
 Where trustees Where the Trustees of a Settlement to which the Father is a Party 
 setH^nt^ have an Obligatory Trust Imposed upon them to Alloiu a Siimfor the 
 aiiow^father Maintenance of his Children. — This exception seems formerly to 
 
 a sum for 
 
 maintenance ' Brrat v. Barlow, 14 Ves. 202. ^ Ex parte Mountfort, 15 Ves. 449. 
 
 of children. ^ Payne v. Lmo, i R. & M. 223. ^ Roach v. Qarvan, 1 Ves. Sen. 160. 
 
 ^ Per Thurlow, L.C., in Buckworth v. Buchworth, i Cox, Bq. Gas. 80. 
 
 6 I G. Coop. 52. ' 17 Ch. D. 807. 
 
 8 Havelock v. Havelock, Re Allan {ubi sup.). 
 
 " Bennett v. Wyndham, 29 L. T. 6. S. 138. 
 
 1" Re Alford, Hunt v. Parry, 32 Cb. D. 383 ; see Re Smeed, Archer y. Prall, 54 
 L. T. 929 ; Kemmis v. Kemmis, 13 L. R. Ir. 372. 
 
 ^^ Leach v. Leach, 13 Sim. 304. 
 
 ^- 31alcolmeon v. Malcolmson, 17 L. R. Ir. 69. 
 
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CHAP, v.] "RIGHTS AND DUTIES OF GUARDIAN (personal). 64D 
 
 have been based upon a theory of contract — that the father had 
 by foregoing certain marital rights, and by being party to the 
 instrument which enabled the trustees to exercise their discretion 
 of allowing maintenance for the support of his children, con- 
 tracted to have his children maintained out of the fund set apart 
 for that purpose, irrespectively of his being able or unable to 
 maintain them himself; and no reference as to his ability to 
 maintain them was required.^ A distinction was thus drawn 
 between an ante-nuptial settlement and a post-nuptial or volun- 
 tary settlement, on the ground that the contract was purely 
 voluntary.^ The effect of this doctrine was limited by holding 
 that where the trustees of the settlement had a mere power, the 
 father was not entitled.^ The consideration for the contract 
 was the father giving up his interest in the fund to be applied 
 for the maintenance of his children, which, but for the settle- 
 ment, he would have taken in his marital right. This theory of 
 a contract by which a father purchases a right to have his 
 children maintained is not now accepted ; and since the passing 
 of the Married Women's Property Act, 1882, it would be very 
 difficult to support any such theory ; for on marriage a husband 
 acquires no marital interest in or rights over his wife's property, 
 the giving up of which would form a valuable consideration for 
 such a contract ; if he does acquire any interest in his wife's 
 property, it is as the result of an actual bargain or stipulation 
 between the parties, independently of any rights on the part of 
 the husband. 
 
 But a case has recently decided that the right of a father, as Father entitled 
 party to a settlement, to have maintenance allowed him depends, ^ eettiement 
 as in the case of a gift by a stranger, upon whether the trustees {'^TV" t'f ° 
 of that settlement have an absolute and obligatory trust imposed allow mainte- 
 
 ,, ,11 ■ , 1 -!■ J* nance imposed 
 
 upon them to allow mamtenance, or merely a discretionary fower on ihem. 
 to allow him such maintenance, which they cannot be compelled 
 to put in force if their discretion is honestly exercised.^ Where 
 it is an obligatory trust, the father can compel the trustees to 
 allow him maintenance, whether he can support his children or 
 not ; where they have a discretionary power, the father cannot 
 enforce maintenance.' A mere declaration in a marriage settle- 
 
 ^ Mundy v. Marl Mowe, 4 Bro. C. C. 223 ; Stocken v. Stodeen, 4 My!. & Cr. 95 ; 
 Meacher v. Young, 2 Myl. & K. 490 ; Bansome v. Bwgess, L. E. 3 Eq. 773 ; see 
 Newton v. Oarzon, 16 L. T. 696. In this case one fund was settled by ante- 
 nuptial settlement with trusts for maintenance, and the other fund was given by will to 
 the trustees of .the settlement to hold upon the same trusts ; maintenance was allowed 
 out of both funds, without reference to the father's ability. 
 
 ^ Be Kerrison's Trusts, L. E. 12 Eq. 422. 
 
 3 Thompsom/. Griffin, i Cr. & Ph. 317. 
 
 * Wilson y. Turner, 22 Ch. D. 521. In this case, Bansome v. Burgess (vbi 
 sup.) was practically overruled, and the principle in Mundy v. Earl Howe (4 Bro. C. C. 
 223) explained. '' Wilson v. Turner {ubi sup.). 
 
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650 GUAKDIAN AND WARD. [part hi. 
 
 menfc that the trustees should after the death of the wife apply 
 the whole or such part as they should think fit of the annual 
 income of the expectant share of any child for or towards the 
 maintenance of such child, is not an absolute trust to apply the 
 income to the maintenance of the child, but a mere discretionary 
 trust equivalent to a power.' The Court will not ordinarily con- 
 trol the exercise of their discretion by the trustees where it has been 
 honestly exercised,^ but where they do not exercise any discre- 
 tion, but the parent improperly has had the annual income paid 
 to him, the estate of the parent will be held liable to repay the 
 whole of the amount of the income received.' 
 Maintenance Where the Court has taken from the father the custody of his 
 
 allowed where ■• ^,^ -i-ii t i i • • i r i • 
 
 children are Children, it Will Order them to be maintained out of their own 
 custody"o °^ means, irrespectively of the ability of the father to maintain them." 
 father. A married woman is not primarily liable for the support of 
 
 Liability of her children, and maintenance was always allowed her, although 
 women. she was possessed of large separate estate,* and reference as to 
 
 her ability was dispensed with.' But now, by the late Married 
 Women's Property Acts of 1870' and 1882,* where she has 
 separate estate^ and her husband is unable to support the children, 
 she becomes liable to that burden : it is therefore submitted that 
 the same principles which govern the right of the father to claim 
 maintenance, or on which he will be refused it, will be equally 
 applicable to the mother." 
 Ainountof The amount allowed must not, as a general rule, exceed the 
 
 allowed; must interest made by the fund ; '" but where the income is fluctuating, 
 exoird^ttein- ^0 as to be very large in one year and very small in another, the 
 terest of the trustee may expend in one year income derived from another, 
 provided that at the cesser of maintenance he has not spent more 
 than the total income." It is impossible to lay down any hard- 
 and-fast rule as to the amount that will be allowed by way of 
 Amount in the maintenance. It is altogether in the discretion of the Court, 
 tte^oomt."^ which will be guided by the rank, fortune, expectations, and the 
 general surroundings of the infant.'^ Thus, where there are 
 younger children, especially if they are numerous and totally 
 unprovided for, upon an application for maintenance for the eldest 
 
 1 Wilson T. Turner, 22 Ch. D. 521. 
 
 2 Brophy v. Bellamy, L. U. 8 Ch. App. 798 ; Cfishorne v. Oisborne, 23 W. B. 410; 
 He Bryant, Bryant v. Hicldey, [1894] i Ch. 321. 
 
 3 tfilson V. Turner (uU stip); and see Tempest v. Lord Camoys, 21 Ch. D. 571. 
 * See Wellesley y. Bulce of Beaufort, 2 Euss. i, 29. 
 
 ■'"' Haley v. Bannister, 4 Madd. 275. ^ Douglas v. Andrews, 12 Beav. 410. 
 
 7 33 & 34 Vict. c. 93, s. 14. _ 8 45 & 46 Vict. 0. 75, s. 21. 
 
 " See Ee Bryant, Bryant v. Hicldey (ubi swp.). 
 
 i» Ex parte Whitfield, 2 Atk. 315. ^ Oarmixihael v. Wilson, 3 Moll. 79. 
 
 12 Me Allan, Havelock v. ffavelock, 17 Ch. D. 807 ; He Collins, Collins v. Collins, 
 32 Ch. D. 229. See cases coUectiid in Simpson on Infants, chap. xv. pp. 299 et sej. 
 
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CHAP, v.] RIGHTS AND DUTIES OF GUARDIAN (personal). G51 
 
 son, the Court will make a liberal allowance to him, that he may 
 be the better able to maintain his brothers and sisters, considering 
 him in the light of the head of the family.' This principle has 
 been extended to the case of an illegitimate brother born of the 
 same father and mother, and who had lived with them, but was 
 quite unprovided for ; ^ and an allowance has been made for chari- 
 table purposes.^ The infant's benefit is the great consideration ; 
 if others are likewise and at the same time benefited, it is no 
 ground for alleging improper application of the allowance.* Where 
 the fund is small, and the whole of it has been paid to the mother 
 of the infant, who has derived benefit from the expenditure of the 
 amount, even though the trustees ought to have made an appli- 
 cation to the Court for permission to make the allowance, the 
 Court will treat it as having been properly applied, and as though 
 sanctioned by itself, and will refuse to make the mother or trustees 
 liable to account for it.' The Court will, at any rate in the 
 event of no opposition by other parties interested, make an order, 
 not only for the personal maintenance of the infant, but for the 
 repairing and furnishing a house in which it was intended that he 
 should reside.* 
 
 The Court will nob break in upon the principal, whether it be When the 
 in the form of real estate,'' or personal,* for the maintenance and break in upon 
 benefit of infants, unless in the case of real estate the rents are g^^afgg^^^'' 
 insnflScient to provide maintenance, and the claims of creditors 
 can be protected,' or the contingency of the infant failing to 
 become absolutely entitled can be insured against." Where the 
 donor is a father, though the rents are insufficient to keep down 
 the interest on incumbrances, a charge on the inheritance for 
 maintenance will be allowed in favour of the infant tenant in fee." 
 But where there is no income arising out of real estate applicable 
 for the maintenance of an infant remainderman, there is no 
 power to charge the realty for his future maintenance, or for the 
 future maintenance of those who might take in remainder after him.'^ 
 
 Where the fund or capital is small the Court will break into it Personal 
 to allow maintenance, where the infant has no other source from ^^ ^' 
 which to look for support ; and in the latter case, even where the 
 
 ' See Pierpoint v. Lord Cheney, i P. Wms. 493 ; WellesUy v. Dulce of Beaufort 
 {uhi sup.) ; and Tweddelly. Tweddell, T. & E. 13. 
 
 ^ Bradshaw v. Bradshaio, i J. & W. 647. 
 
 ' Langton y. Brachenburgh, 2 Coll. 446. 
 
 ■• Brown v. Smith, 10 Ch. D. 377, reversing 46 L. J. Ch. 866. 
 
 ^ Ibid. " Griggs v. Oibson, 14 W. K. 538. 
 
 ' Butler's Case, cited i Ves. Sen. 95. 
 
 8 Be England, i E. & M. 499 ; Davies v. Davies, 2 De Gr. M. & G. 53. 
 
 " Butler's Case {ubi sup.). ^'' Be Witte v. Balin, L. R. 14 Eq. 251. 
 
 ^' Re Hoioarth, L. R. 8 Ch. App. 415 ; but sec Cadman v. Cadman, 33 Ch. D. 397. 
 ^^ Jte Hamilton (Infants), 31 Ch. D. 291. 
 
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652 
 
 GUAEDIAN AND WARD. 
 
 Fast mainte- 
 nance. 
 
 Stranger. 
 
 [PAKT HI. 
 
 legacy is large.' Trustees should be more than cautious in 
 breaking into capital without the leave of the Court ; for if they 
 have done so improperly they will be rendered personally account- 
 able.^ But where they have broken into capital under circum- 
 stances which, on an application to the Court for that purpose, 
 would have induced the Court to break into the capital, they will 
 not be called to account merely because they omitted to make the 
 application.^ 
 
 A father being under natural obligation to support his children 
 will not be allowed for their past maintenance, except under 
 special circumstances;' as where the father became liable to 
 debts he was obliged to contract in supporting the minor, and 
 there was no fund in Court until the time of his application for 
 maintenance.' A mother has been allowed for the past main- 
 tenance of her children;* and where trustees allowed her the 
 whole income of a fund for maintenance, without applying to the 
 Court, under circumstances which would have induced the Court 
 to allow it, the income was held properly expended.' But 
 advances to an infant by his mother without any evidence of any 
 intention to claim repayment as for a debt, were held not to con- 
 stitute a debt due and payable to her out of his estate ;' and if 
 advances were made with a view to repayment, they would seem 
 to be limited to necessaries." Her claim to it in the future, since 
 the passing of the Married Women's Property Act, 1882, wUl, in 
 all probability, be held to depend upon the like principles which 
 govern the claim of the father. 
 
 If a stranger maintains an infant out of charity or affection, he 
 has no claim for the money expended ; '° but if he maintains it 
 with the intention of being repaid, he may make good his claim ;" 
 indeed, " he will have a little more consideration than a trustee, 
 charged with the care of paying an infant when of age a sum of 
 money, would be allowed,"'^ 
 
 A distinction is drawn between past and future maintenance ; in 
 the former case, only that which has been properly expended," where- 
 
 Harvey, 2 P. "Wms. 21. ^ See Mdbinson v. Killey, 30 Beav. 520. 
 
 * Lee T. JBrown, 4 Yes. 362 ; Prince v. Hine, 26 Bear. 634. 
 ■* Jix parte Bond, 2 Myl. & K. 439. Such as embarrassment of circumstances, 
 Carmichael v. Hughes, 20 L. J. Cii. 396 ; debt incurred for maintenance, Parsons v. 
 Peters, 11 Jur. N. S. 150; inability to maintain witb regard to other children unpro- 
 vided for, Ex parte Penleaze, i Bro. C. 0. 387 n. ; or where lie can enforce a trust for 
 that purpose, Mundy v. Marl Howe, 4 Bro. C. C. 223. 
 ^ Ex parte Darlington, 1 Ba. & B. 240. 
 
 ^ Bruin v. Knott, i Ph. 572. ' Brown v. Smith, 10 Ch. D. 377. 
 
 8 Be Cottrell, Joyce v. Oottrell, L. E. 12 Eq. 566. 
 ' See Be Rhodes, Bhodes v. Bhodes, 44 Ch. D. 94. 
 1° Grove v. Price, 26 Beav. 105. 
 1' Marlow v. Pitfeild, i P. Wms. 558. 
 
 '2 Per Lord Thurlow in Davies v. Austen, i Ves. Sen. 247, 249. 
 ^' See Bruin v. Knott {uhi anp. ). 
 
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«HAP. v.] RIGHTS AND DUTIES OF GUARDIAN (personal). 653 
 
 «,s in the latter case a proper sum will be allowed, taking into con- 
 sideration the rank and surrounding circumstances of the infant.' 
 
 Maintenance ceases at the time fixed by the instrument of Cesser of 
 donation, whether at twenty-one or at an earlier period. But "^^ en*ii<=e- 
 nice questions have arisen as to whether it ceases on marriage or 
 iorisfamiliation of the infant/ or where by the instrument it is 
 made to cease at a time earlier than the majority of the infant, 
 though on his attaining twenty-one a legacy is made payable to 
 him. It is now the rule that where a testator, who is a parent, 
 •directs that the maintenance of a child shall cease at a date 
 earlier than majority, either on marriage or by attaining a certain 
 age, and a legacy is made payable to him contingently on his 
 attaining twenty-one, the Court may infer that the testator 
 intended that the infant should be maintained as before in the 
 interval between the date fixed for the cesser of maintenance and 
 his majority.' 
 
 For a collection of cases on this subject see Mr. Simpson's 
 book'on Infants.* 
 
 Advancement may be described as a sum paid out of capital Advancement, 
 "to secure a permanent benefit or advantage in life for the person 
 who is presumably entitled to or has a vested or contingent in- 
 terest in property before the time fixed for his obtaining the 
 absolute interest in the whole or part of such property.* Ad- 
 vancement is not necessarily restricted to the period of infancy, 
 though it may be so restricted by the terms of the instrument 
 under which it is made.° 
 
 There are certain difierences between maintenance and ad- Difference 
 
 ..1 1-ij.ij* • n T 11 between main- 
 
 vancement; thus, while the former is generally and nearly always tenauce and 
 allowed out of interest only, the latter is invariably taken out of advancement. 
 -capital ; another is that the former necessitates the payment of 
 various sums from time to time ; while the latter is usually the 
 payment of a single lump sum out of the available capital. 
 Again, advancement is a word of larger import than maintenance; 
 and the powers of trustees and guardians under an instrument 
 containing a provision for advancement are considerably increased; 
 thug, the allowance of maintenance stops at majority, unless the 
 instrument of donation otherwise provides ; but the advancement 
 or preferment of the person to be benefited can be made after he 
 
 ^ See Jervoise v. Silk, Or. Coop. 52. " The general rule of the Court is to al)ow 
 ^ gross annual sum proportioned to the age and quality of the infant and quantum of 
 the estate, not laying down any strict rule." Per Lord Hardwicke in Moor v. Lacy, 
 Macph. Inf. App. III. p. viii. ' See Oarr v. Living, 28 Beav. 644. 
 
 ' Chambers v. Ooldwin, 11 Ves. i ; Martin v. Martin, L.R. i Eq. 369. 
 
 ■* Pp. 314 et seq. ° Be Aldridge, Abram v. Aldridge, 55 L. T. 554. 
 
 * The advancement here under consideration is not that made by parents, but by 
 guardians or trustees only. See Part II., Parent and Child, chap. iii. p. 543. 
 
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654 GUARDIAN AND WARD. [part hi. 
 
 has attained twenty-one.' But the power to advance the child 
 may be confined to his minority,^ though it is not usual to do so. 
 The discretion of trustees who have a discretionary power of 
 advancement will not be controlled merely because an action has 
 been brought for the administration of their testator's estate.' 
 If, however, the trustees refuse to act, or decline to exercise their 
 discretion, then the Court will direct an inquiry whether any and 
 what advancement ought to be made.* The object of mainten- 
 ance and advancement is the same, viz., the benefit and furthering 
 of the interests of the infant; and, broadly speaking, the same 
 rules apply to the advancement of capital as to the application of 
 interest by way of maintenance. A trustee cannot apply part of 
 the principal towards the advancement of a child where the 
 legacy is subject to a limitation over on the happening of a con- 
 tingency in favour of a stranger ; for the Court itself could not 
 make an order for advancement in such a case.* Unless trustees 
 are expressly authorized they cannot advance part of the corpus 
 of an estate to a person who, under the terms of the trust in- 
 strument cannot ever become absolutely entitled to a share of the 
 corpus; and the mere fact that the instrument contains a power 
 of advancement sim/plicifer is no such authorization.' 
 Powers of the Where the gift of the fund is to a class (of which the infant 
 thanthosrof to be advanced is one) in a certain event, such as attaining 
 trustees. twenty-one or marriage, with a limitation over to the survivors or 
 
 survivor in the case of the death of any under that age or un- 
 married, then the Court, though not the trustees, can make the 
 advance out of such fund.' A trustee who made such advance, 
 on the contingency not happening which would entitle the infant 
 to the fund, would be liable to make good the amount of the 
 advance to the person entitled over ; but as between the infant 
 and himself, he would be allowed it in his account on the coming 
 of age of the former.* 
 Parents cannot Parents Sometimes claim to deduct from legacies and other 
 claim for TiroDertv belongingr to their children the amount of the sums 
 
 amount of f f J o _ o , , ^ -i. • ii i j. i? r j.i 
 
 sums expended expended for their advancement ; but as it is the duty oi a tatner 
 
 Sent^of"''^' to provide for his child out of his own means, he vrill not be 
 
 children. allowed to recoup himself out of bis child's property for any 
 
 advance made," unless it is clear that he was unable to afford 
 
 such advance.'" There is now, it is contended, a like liability 
 
 1 Lowther v. Bentinch, i L. E. 19 Bq. 166 ; Be Breed's Will, i Cb. D. 226. 
 
 2 ClarU V. Hogg, 10 W. R. 617. ^ Brophy v. Bellamy, L. K.. 8 Ch. App. 798. 
 * Lewis V. LeiDis, i Cox, Eq. Gas. 162, cited in Mobinson v. Oleator, 15 Yes. 526. 
 ^ Lee V. Broion, 4 Vea. 362. 
 
 6 Be Aklridge, Abram v. Aldridge, 55 L. T. 554. -no 
 
 7 See Be Breed's Will, i Ch. D. 226. " Worthmgton v. M'Craer, 23 Beav. 81. 
 9 Barley v. Darley, 3 Atk. 399. " £x parte Hayes, 3 De G-. J. & S. 485. 
 
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CHAP, v.j RIGHTS AND DUTIES OF GUARDIAN (personal). G55 
 
 on the part of the widowed mother, who is clearly bound to sup- 
 port her children. In the old case of Smee v. Martin,^ a mother 
 was not allowed the expense of putting her child out to apprentice- 
 ship, on the ground that she was bound to support him, and this 
 must be held to be the law, more especially in view of recent 
 legislation affecting the position and liability of married women. 
 
 Advancement may be made in pursuance of a power contained 
 in the instrument directing the advancement, or in the absence 
 of such power it is usual to insert both in settlements and wills, 
 where necessary, express powers aathorizing the trustees to advance 
 either the whole or some portion of the capital to which the 
 donee of the fund is entitled, for the benefit of the donee, whether 
 infant or adult. 
 
 Advancement binder a Potver. — The terms of the power ought Adranoement 
 to be strictly carried out, and the trustees ought to be guided by TCTms^of the 
 them ; the advancement ought to be made for the bond fide benefit power to be 
 
 -, . stnctly car- 
 
 ol the infant.^ Advances for the following purposes have been ried out. 
 
 allowed: Putting an infant to sea;^ maintenance (where included ^^P^^^^ 
 
 in the words of the power) ;■* a fund settled on the marriage of a 
 
 daughter ; * fund settled by a son in a post-nuptial settlement ; " 
 
 setting up the husband of a daughter in business' (but not paying 
 
 the husband's debts) ; ^ setting up a married daughter in a farming 
 
 business;" the payment of an adult's debts, where the terms of 
 
 the instrument are wide enough;'" and an advance to enable a 
 
 family to emigrate. " Where the power is discretionary, the Court 
 
 will not, as a rule, control the discretion of the trustees,'^ but if 
 
 they decline to exercise their discretion, an inquiry will be 
 
 directed as to what would be a proper exercise of the power.'^ If 
 
 a discretionary power is given to trustees for a particular purpose 
 
 which fails, they cannot exercise it in any other way, though for 
 
 the benefit of the cestud que trust,^* but where the gift to the donee 
 
 is absolute in its nature, and a particular mode is pointed out in 
 
 which it is to be laid out, the gift will be good, though the 
 
 money cannot be laid out in that particular mode,'° and if in such 
 
 a case the whole of the amount of the gift be unapplied, the 
 
 residue will belong to the donee. '° Where an advance has been 
 
 ' Baob. 136. ^ Simpson v. Brmon, 13 W. K. 312. 
 
 ^ Worry. Warr, Free. Ch. 213. ^ Bohison v. Killeij, 30 Beav. 520. 
 
 ^ Lloyd V. Cocker, 27 Beav. 645. 
 
 ' Boper- Ourzon v. Boper- Curzon, L. B. II Eq. 452. 
 
 '' 'Be Kershavi's Trusts, L. K. 6 Eq. 322. 
 
 8 Tdlhot V. Marsfield, L. E. 3 Ch. App. 622. » Ibid. 
 
 1" Lowther v. Bentinch, L. E. ig Eq. 166. ^^ Be Long, 38 L. J. Ch. 125. 
 
 12 French v. Davidson, 3 Madd. 396. ^■^ Kilvington v. Gray, lo Sim. 293. 
 
 -* Be Ward's Trmts, L. E. 7 Ch. App. 727. 
 
 ^•' Sarlowv. Grant, i Vern. 255 ; Leehe v, Kilmorey, T. & E. 207. 
 i" Bcdmer v. Floioer, L. E. 13 Eq. 250. 
 
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656 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Advancement 
 in the absence 
 of a power. 
 
 Application 
 for mainte- 
 nance and 
 adrancement, 
 iow made. 
 
 made without fraud, and the donee is able to sell the subject of 
 the advance, such as the goodwill of a business or share in a 
 partnership, the donee will be entitled to retain the produce of 
 the sale.' The Court does not inquire into the application of 
 money advanced under the power, if it is shown that the purpose 
 for which it was raised was known and a proper one ; and trustees 
 who so pay over the amount to be advanced are not liable, though 
 it be afterwards misspent.^ 
 
 Advancement in the Absence of a Power. — Trustees acting under 
 an instrument which does not give them a power of advancement 
 may make an advance to the infant out of the infant's property, 
 such as the Court itself would have authorized, and will not be 
 called upon to account for having done so.' In such cases, as a 
 rule, the trust fund is small, and the application of the capital is 
 clearly for the infant's benefit.* The following have been held 
 proper advances under the circumstances: To pay for being 
 articled to a solicitor ; ' for an apprentice f ee ; " to bring an infant 
 home from a distant country ; ' for an outfit for an infant going 
 to a distant colony,* towards furnishing a house for the residence 
 of the infant and his mother and brothers,' and for payment of 
 arrears of rent to save ejectment." Purchase of a commission in 
 the army was deemed formerly a good advancement, and though 
 it has been abolished, an advancement for the supportof a young man 
 at one of the military academies would be deemed good and proper." 
 
 Application to the Court in the matter of maintenance and 
 advancement should be made at chambers by the guardian (if 
 any) or next friend of the infant : if there is an action or matter' 
 pending before the Court it should be made by an ordinary sum- 
 mons ; but by an originating summons in other cases.''' In former 
 times a suit was deemed necessary in most cases. The order 
 can be made not only where there is a fund in Court or under 
 the control of the Court belonging to the infant, the income of 
 which is applicable to his maintenance, but even where the fund 
 is not in Court.'' Though the old practice of bringing an 
 action in ordinary cases is no longer necessary,'* yet an action 
 
 1 See Andrew v. Andrew, 30 L. T. 457. 
 
 2 Be Brittlebanh, Ooates v. Britilehank, 30 W. R. 99. 
 ^ Lee V. Brovm, 4 Ves, 362. 
 
 * Barlow v. Orant, 1 Vern. 255 ; Andrews v. Partington, 2 Cox, Eq. Cas. 223. 
 
 5 Be Welch, 23 L. J. Ch. 344. ° Franklin v. Oreen, 2 Vem. 137. 
 
 ' Stephens v. James, i Myl. & K. 627. 
 
 8 Be Salter's Trusts, 17 Ir. Ch. Rep. 176. ' Perry v. Perry, 18 W. R. 482, 
 
 1" Ex parte McKey, 1 Ba. & B. 405 ; see also Walsh v. Walsh, 1 Dr. 64. 
 " See Evans v. Massey, i Y. & J. 196, and Cope T. Wilmot, i Coll. 396 n. 
 Crespigny v. De Orespigny, W. N. 1886, 24. 
 
 12 Dan. Ch. Pr. 1 126. " Be Colgan (Infants), 19 Ch. D. 305. 
 
 " Be Mowarth, L. R. 8 Ch. App. 415. 
 
 Be 
 
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CH. V.J RIGHTS AND DUTIES OF GUARDIAN (personal). 657 
 
 should be brought in those cases in which the infant's right to 
 maintenance was doubtful,' or where the Court alone and not 
 the trustees can exercise a power in favour of the infant." 
 Where an order for maintenance has been obtained to pay a sum 
 to a widow for the support of her infant children, and she 
 marries again, the order is at an end, and a fresh application to 
 the Court ought to be made. But such order does not determine 
 on the death of one of two trustees, who were parties to it.' If 
 an increase of the allowance is required the application should 
 be made by an ordinary summons, supported by an affidavit 
 showing the necessity for the increase.^ 
 
 One guardian is not discharged by evidence of payment of Guardian not 
 income of the trust fund to his co-guardian for support of the mere payment. 
 infant ward, but he is not to be bound to vouch the items of *° ^-S"*'""^*"- 
 expenditure, if the ward has been properly maintained and edu- 
 cated in proportion to the sum expended.* 
 
 1 CorUtt V. Tottenham, i Ba. & B. 59. ^ jj^ Breed's Will, 1 Ch. D. 266. 
 
 ■^ Brown \. Smith, 10 Ch. D. 377 ; reversing 46 L. J. Ch. 866. 
 
 -' Dan. Ch. Pr. 1126. 
 
 ^ Be Ecans, Welch v. Channell, 26 Ch. U. 58. 
 
 2 T 
 
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CHAPTEE VI. 
 
 RIGHTS AND DUTIES OF GUAEDIANS IN EESPEOT 
 OF THE PROPERTY OF THE WARD. 
 
 PAGE 
 
 guaediaxship a trust 659 
 
 When Guardian may Delegate his Duties . . . 660 
 
 GUAEDIAX MAY MAKE NO PeOFIT OUT OP HIS OFFICE . 66o 
 
 Guardian Cannot, as a Eule, Purchase Estate of Waed 661 
 
 General Duties of Guardian 662 
 
 Management by Guaedia^i of Waed's Peopeety out of 
 
 Court 66j 
 
 Eights and Duties op Guaedian in Ebspect of the 
 Beal Estate op Ward : 
 
 Ward's Peoperty must not, as a Bulb, be Converted 664 
 
 When Conversion Peemitted : Sale of Ward's Land 665 
 
 Partition Acts, 1868 and 1876 ..... 666 
 
 Settled Estates Act, 1877 667 
 
 Settled Land Acts 1882 and 1890 668 
 
 Heirlooms 669 
 
 Scope op Act of 1882 670 
 
 Leasing Powers op Trustees or Guardians . . 672 
 
 Settled Estates Act, 1877 672 
 
 Conveyancing and Law of Property Act, 1881 . . 674. 
 
 Settled Laud Acts, 1882 and 1890 674 
 
 Power op Leasing 674 
 
 The Conveyancing and Law of Peopeety Act, i88i . 676 
 
 Trustees' Eeceipts • ■ 678 
 
 Protection op Trustees 679 
 
 Duty of Trustees to keep down Charges. . . 679 
 
 Necessary Expenses and Ebpairs 680- 
 
 Infant Tenant foe Life Bound to Keep Premises 
 
 IN Eepaie 681 
 
 Cutting of Timber 682 
 
 Equitable Waste 682 
 
 What Tenant fob Life may Cut whe-j not Im- 
 peachable for Waste 683, 
 
 When Impeachable for Waste .... 683 
 Mines and Minerals .... .-684 
 
 Drainage ^^4- 
 
 Inclosuee of Commons 685 
 
 Tithe Commutation Act, 1836 . . . 685 
 
 LAND Tax . . 68s 
 
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CH. VI.] RIGHTS AND DUTIES OF GUARDIAN (pjiopaiETARy). 659 
 
 Eights and Duties, etc.— continued. ^'^°^ 
 
 Lands Clauses Consolidation Act, 1845 • • • 686 
 PowEES OP Guardian to Convey Ward's Lands for 
 
 Special Purposes 686 
 
 Duties op Guardian as to the Personal Estate op 
 
 Ward — Rule against Conversion .... 687 
 
 When Conversion Allowed 687 
 
 Property to be Invested in Authorized Securities 688 
 
 Ward's Property Embarked in Trade .... 689 
 
 Specific Duties of Guardian 690 
 
 Payment op Legacies Due' to Ward .... 691 
 
 Payment op Legacies to Testamentary Guardian . 691 
 
 Legacy Duty Act, 1796 692 
 
 Appropriation op Fund by Executor to Meet Legacy 692 
 
 Appropriation by the Court 692 
 
 Eeceivees 693 
 
 When Appointed to Infant's Estate .... 693 
 
 Security 694 
 
 Their Duties and Liabilities as to the Ebal Estate 694 
 Their Duties and Liabilities as to the Personal 
 
 Estate 694 
 
 DISCHAEGB OP EECEIVBK 695 
 
 Passing Accounts .... ... 696 
 
 Guardianship is a trust, and tlie Court of Chancery, as exercising Guardianship 
 
 supreme control over trusts, watches with vigilance over the * '™^'' 
 
 management of the property of wards by their guardians. " The 
 
 relation of guardian and ward is strictly that of trustee and cestui 
 
 que trust. I look on it as a peculiar relation of trusteeship. 
 
 .... A guardian is not only the trustee of the property, as in 
 
 an ordinary case of trustee, but he is also guardian of the person 
 
 of the infant, with many duties to perform, such as to see to his 
 
 maintenance and education. I consider that .... of all the 
 
 property which he gets into his possession in the character of 
 
 guardian, he is a trustee for the benefit of the infant ward." ' 
 
 All guardians of whatsoever description are bound to keep safely General duties 
 
 the property of their wards ; they must account for the personal ° ^"""^ ^^^^' 
 
 estate, and for the issues and profits of the real. If they make 
 
 default in their trust they will be held personally responsible. 
 
 A guardian is bound not to do anything which can place him in 
 
 a position inconsistent with the interests of his trust, or which 
 
 have a tendency to interfere with his duty in discharging it.^ 
 
 In managing the affairs of his ward the guardian is bound to Guardian 
 
 exercise the same care and prudence as a prudent man of busi- the^oara^ofT 
 
 ness would exercise in the management of his own affairs, but he prudent man. 
 
 is not responsible for more. So if he has a discretion, he must 
 
 exercise it in a fair and honest manner, and if a loss is the 
 
 1 Per Lord Eomilly in Mailiew v. Briae, 14 Beav. 345. 
 ^ See Hamilton v. Wright, 9 CI. & Fin. iii. 
 
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660 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 result, he cannot be made to bear it ; to render him liable some 
 When guar- negligence in the transaction must be proved.' Consequently, 
 dXgTte'his i^' ^^^ been determined that trustees are not bound personally to 
 duties. transact such business connected with or arising out of the 
 
 proper duties of their trust as, according to the usual mode of 
 conducting business of a like nature, persons acting with reason- 
 able care and prudence on their own account would ordinarily 
 conduct through mercantile agents; and that when, according to 
 the usual and regular course of such business, moneys receivable 
 or payable ought to pass through the hands of such mercantile 
 agents, that course may properly be followed by trustees, though 
 the moneys are trust moneys ; and that if, under such circum- 
 stances, and without any other misconduct or default on the part 
 of the trustees, a loss takes place through any fraud or neglect of 
 the agents employed, the trustees are not liable to make good 
 such loss. But the guardian or trustee must not delegate the 
 execution of his trust unless there is either some moral necessity 
 or sufficient practical reason for so doing.^ And it has been 
 recently held that where trustees for sale are selling, they must 
 receive in person the purchase money, and not delegate their 
 solicitor to receive it unless specially authorized to do so.^ 
 Guardian may As another consequence of the fiduciary relation of guardian 
 wtof Ws^'"^' and ward, the guardian can make no profit out of his office, but 
 office. must in all things act for the benefit of his ward. Whatever 
 
 advantage or profit results from his dealings with the ward's pro- 
 perty accrues entirely for the ward's benefit. " The guardianship 
 should be managed for the ward's benefit. The guardian cannot 
 reap any benefit from the use of the ward's money. He cannot 
 act for his own benefit in any contract, or purchase, or sale, as 
 to the subject of the trust. If he purchases in his character as 
 guardian, he presumptively uses his ward's funds for that purpose. 
 If he settles a debt upon beneficial terms, or purchases it at a 
 discount, the advantage is to accrue entirely to the ward's estate. 
 He cannot be permitted to place himself in an attitude of 
 hostility to his ward, or derive any benefit from the latter's loss. 
 "Wherever he abuses the confidence reposed in him, he will be 
 held to a strict accountability.^ If he does unauthorized acts 
 which redound to the advantage of the ward, they will be sanc- 
 tioned, and the ward will enjoy the benefits derived from them ; 
 if, on the contrary, they result in a loss, they will not be sanc- 
 tioned, but the ward will not be saddled with the loss ; and 
 
 1 See Ex parte Belchier, Amb. 218 ; Speight v. Gaunt, 9 App. Cas. i. ^ ^j,-,^, 
 3 Re Bellamy and the Metropolitan Board of Works, 24 Ch. D. 387, reversing 
 j2 L. J. Ch. 89. " Sch. Dom. Eel. s. 348. 
 
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CH. vi.] RIGHTS AND DUTIES OF GUARDIAN (propeietaby). 661 
 
 therefore, where there is any doubt, the guardian should apply to 
 the Court for directions and sanction.' A guardian is personally 
 liable for his breaches of trust, and he cannot make the estate of 
 his ward suffer for them ; thus, if he invest trust funds in 
 unauthorized investments, on one of which a profit is made, and 
 on the other of which there is a loss, he cannot set off the profits 
 against the loss, but must let the estate have the benefit of the 
 profits, while he remains personally liable for the loss.^ An 
 infant ward, or ceshd que trust, cannot authorize a breach of 
 trust,^ or bind himself by adopting it.* So a trustee cannot, as a Guardian 
 rule, purchase the estate of his ward, for as the relation of rX)*piirciiase 
 vendor and purchaser are antagonistic, the interests of the ward ®^'**'' °^ ■^■'"^'^■ 
 would be likely to suffer.'* Again, the situation of the trustee 
 gives him an opportunity of knowing the value of the property, 
 and as he acquires that knowledge at the expense of the cestui q^ie 
 trust, he is bound to apply it for the cestui que trust's benefit." But 
 in cases where it would be for the infant's benefit, and absolutely When trustee 
 necessary that the estate should be sold, and the trustee is willing to ""^^ ^^' 
 give more than any one else, he may bring a suit, make his proposals, 
 and ask leave of the Court to effect the purchase, in which case 
 the Court will examine into the circumstances, inquire whether the 
 price offered was the best that could have been obtained, and 
 after inquiry, will let another person prepare the particulars of 
 sale, and allow the trustee to bid. In such a case, the ward and 
 the guardian are, so far as the property and the sale are con- 
 cerned, at arms' length towards one another. If the Court has 
 sanctioned the application, and the guardian has purchased, he 
 will be protected ; but if he has purchased without the sanction 
 of the Court, even though he has given an adequate price, the 
 transaction will under the circumstances be set aside at the suit 
 of interested parties, and a re-sale directed ; ' and if the property 
 does not fetch the price given or agreed to be given by the 
 guardian, the latter will be fixed with the amount agreed to be 
 given.' 
 
 A guardian who does an act in his ward's name or on behalf unauthorized 
 
 acts of 
 
 of his ward, does not necessarily bind him or his estate," but guardians, 
 renders himself personally liable , and " it is a general principle, 
 that acts done by a giiardian without authority will be protected, 
 and will bind the infant, if they turn out eventually beneficial to 
 
 ^ See dlilner v. Xiord Sarewood, 1 8 Ves. 259. 
 
 ^ See Farrer v. Farrer, 76 L. T. Jour. 37. ^ Wilkinson v. Parry, 4 Euse. 272. 
 J Zamhaco v. Cassavetti, L. K. 1 1 Eq. 439. 
 
 ^ Camphelly. Walker, 5 Ves. 678. ^ See Ex parte James, 8 Ves. 348. 
 
 '■ See Gary v. Gary, 2 Sch. & Lef. 173. 
 
 8 Campbell v. Walker (vhi sup. ). ; see also Temiant v. Trencliard, L. E. 4 Ch. 
 -^PP- 537' ° Hooper v. Eyles, 2 Vem. 480. 
 
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662 GUARDIAN AND WARD. {paet hi. 
 
 the latter ; but tlie guardian does such acts at his own risk," ' 
 and "agreements are sometimes made on behalf of infants, with- 
 out judicial sanction, yet so beneficial, that they would be 
 enforced in equity, and the infant would not be allowed to avoid 
 them at full age."^ If, on the contrary, the unauthorized trans- 
 action was not advantageous, the ward on arriving at majority 
 might disaffirm it, and require the guardian to place him in statu 
 quo. 
 General duties The general duties of guardians are to act for the benefit of 
 guar lans. ^-^q infant wards, and not to make any profit out of their estate ; 
 and whatever advantage results from their dealings with the 
 ward's property must accrue entirely for the advantage of the 
 latter. They must account for whatever comes into their posses- 
 sion ; but not only must they so account, but they must do their 
 best in the management of the real and personal estate of their 
 wards. They must get in all the outstanding personal estate, 
 whether it consist of legacies, or special or simple contract debts, 
 and for such purposes they can give good quittances or receipts ; 
 they must reduce the choses in action into possession. So if the 
 property produces an income, whatever surplus is left over after 
 providing for the management of the property, and the education 
 and maintenance of the ward, should be properly invested by 
 them so as to make the estate as productive as possible. They 
 may sue and vindicate their rights in the name of the ward as 
 his next friends.' They must manage the property with a 
 view that the most shall be made of the estate during minority, 
 and not of the immediate income only.^ They must not convert 
 the ward's property, unless they are specifically authorized to do 
 so, or obtain leave of the Court; they must not renew leases 
 except for the infant's benefit ; and they must not break in upon 
 capital, for it is their duty to preserve the principal entire.' 
 The guardian must not commit waste of his ward's land ; and to 
 turn an ancient pasture into arable is on his part an act of 
 waste." 
 Difference in There is a difference to be noticed in the powers of a guardian 
 Chlncer°y and appointed by the Court of Chancery, and of guardians not so 
 diana^"'''' appointed. A person who is appointed by the Court of Chancery 
 guardian to an infant who is possessed of property, is, so far as 
 the property is concerned, in somewhat the position of a receiver 
 
 1 Macph. Inf. 339. ^ Jhid. „„ ^ , . 
 
 3 I Dan. Ch. Pr. 106; Eules of the Supreme Court, 1883, Ord. xvi. r. 16. 
 Where infants defend guardians ad litem are specially appointed. Ibid. 
 ^ Sutton V. Jones, 15 Ves. 588. „ , vr 
 
 ■> Davies v. Austen, 1 Ves. 247 ; Walker v. WetJieraU, 6 Ves. 473.. 
 " Clarlc V. Thorp, 2 Ves. Sen. 232. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUARDIAN (peoprietaey). CG3 
 
 (an officer who used to be more frequently appointed to manage 
 an infant's estate than at present), but has more independent 
 control over the ward's property than a mere servant of the Court. 
 It has been held that he had no control over the ward's pro- 
 perty (such as to enable him to give a receipt to a tenant) ' unless 
 he was empowered by an order of the Court to use the whole of 
 the infant's fortune in maintaining him ; but as he is compelled 
 to give security to account on taking up the management of the 
 estate, it would seem that he must be entitled to some control 
 over the property.^ 
 
 The powers of testamentary guardians over the person and Testamentary 
 property of their ward are independent of the authority of the ^"*' 
 Court of Chancery, and are based upon those of the guardian 
 in socage. The statute which creates their office defines their 
 powers ; but these powers over the real property of the ward are 
 not precisely defined, and they have no estate in it ; ' but they 
 may, as such, bring actions and avow in their own name, and 
 make leases to take effect during the minority of their ward, but 
 no longer;'* and do other acts as clomini fro tmnfore!' But 
 they are amenable to the Court of Chancery, as exercising subject to the 
 
 .-,... .. T iTi T control of the 
 
 supreme jurisdiction over trusts, and are bound to render an court. 
 account of the property received and managed by them. It is a 
 matter of some doubt whether a guardian can assign dower. It 
 has been stated that a guardian in socage cannot assign dower, 
 on the ground that a writ of dower would not lie against him,* 
 and therefore a guardian appointed by the infant himself, or by 
 the Court of Chancery, would not be able to do so. But a guar- 
 dian in chivalry was enabled to assign it,' and as a testamentary 
 guardian to a considerable extent represents the old guardian in 
 chivalry, such an one might be held capable of assigning it. 
 
 If the infant is not a ward of Court, the guardian or other Management 
 person intrusted with his property must act, as to the real estate, out-of-court. 
 according to his own powers as guardian or trustee ; he must 
 also follow any special directions, and he may exercise any 
 powers contained in the instrument under which the infant is 
 entitled; and he must, in the absence of such directions or 
 powers, call in the money due to the infant, and invest it in 
 trustee investments,^ or in the purchase of any existing charge on 
 the infant's real estate ; or he may leave it out, if he finds it on 
 
 1 Ex parte Starkie, 3 Sim. 339. But see Dan. Ch. Pr. 1129. 
 
 2 2 Dan. Ch. Pr. 1120, 1128. ^ Gardner v. Blane, i Ha. 381. 
 ■• Roe dem. Parry v. Hodgson, 2 Wile. 129. ^ Simp. Inf. 223. 
 
 s I Hop. H. & W. 389. ^ Co. Lift. 35 a, 386. 
 
 s See 52 & 53 Vict. c. 32. 
 
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PC 4: GUARDIAN AND WARD. [paet hi. 
 
 good mortgage security ; but if he lays it out on mortgage of 
 any other real estate than the infant's, or if he leaves it out, or 
 having got it in, invests it upon personal security^ he does so at his 
 own risk, even though he has express authority to lay out the 
 money in such manner as he shall think most for the infant's 
 advantage, and though the borrower is unquestionably solvent at 
 the time. It is scarcely necessary to add, that the infant's 
 money must not be allowed to remain in trade. The investment 
 of an infant's money on mortgage may, if beneficial to him, 
 receive the retrospective sanction of the Court.' 
 Receipt of Where co-trustees have to receive money, they must all give a 
 
 moneys by . . ./ ? ./ o 
 
 co-trnstees. receipt for it, and it may be paid to one, who may hold it for a 
 short time without any responsibility on the part of the others ; 
 but he ought not to retain the money longer than is absolutely 
 necessary. The money ought to be deposited to their joint 
 account in some bank of credit, if practicable.^ 
 
 Many of the powers now exercised by guardians, Chancery 
 and testamentary, did not originally exist, either as incident to 
 their office, or as conferred upon them by the Court of Chancery ; 
 for the Court itself had no inherent right to confer them.'' It 
 was found necessary to pass Acts of Parliament conferring juris- 
 diction upon the Court to authorize or approve of the exercise of 
 such powers by guardians of all kinds. 
 
 The subject matter of this chapter will now be discussed in 
 greater detail, and for that purpose will be thus divided : — 
 
 (i) Eights and duties of guardians in respect of the real 
 estate of the ward. 
 
 (2) Rights and duties of guardians in respect of the personal 
 estate of the ward. 
 
 Eights and (i) A guardian, it has been seen, must not convert the pro- 
 
 diansto respect perty of the Ward, unless specifically authorized to do so. It 
 
 of the real ^^g i[jgg^ \^i^ down as a general rule that the nature of an 
 
 „ ,, ^ infant's property must not be changed either by a guardian or a 
 
 pertymust trustee out of court, or by the Court itself, so as to convert 
 
 be oonTOrted.' personal into real, or real into personal estate." The reason for 
 
 this rule is, that the guardian has not the power, nor the Court 
 
 of Chancery an inherent jurisdiction, to convert the ward's realty 
 
 into personalty, merely because it would be beneficial,' The 
 
 infant himself is under a legal incapacity to enter into a binding 
 
 1 M^cph. Inf. 270, and the cases there cited. 
 
 ^ See Walker v. iSymonds, 3 Swanst. i. 
 
 s See Taylor v. Philips, 2 Ves. Sen. 23 ; Russell v. Russell, i Moll. 525. 
 
 * Macph. Inf. 278. 
 
 = Field V. Moore, 25 L. J. Cb. 66; Calvert v. Godfrey, 6 Beav. 97. 
 
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CH. Ti.] RIGHTS AND DUTIES OF GUARDIAN (phoprietaey). 6G5 
 
 contract to sell or purchase property ; and to enable the guardian 
 or trustee so to act, a special power must be given him in the 
 instrument under which he is to act, and to enable the Court so 
 to act legislative interference is necessary.' As regards personal 
 property, the reason assigned is that as formerly an infant who 
 had attained the age of twelve (if female), and fourteen (if 
 male), could make a valid will of personalty, but not of realty, 
 to convert his personal property into real property would be to 
 deprive him of his power of testamentary disposition. The Wills 
 Act, 1837,^ has taken away from an infant his power of makiug 
 a will, and so the reason for the rule ; yet it still remains. 
 
 The Court will, however, allow personalty to be converted into When conver- 
 realty if clearly for the benefit of the infant; and what ^Jjq ^^°°P'^'''"' 
 Court will allow to be done by its own order, trustees or 
 guardians will be allowed to do.' But the conversion will be one 
 suh modo, and not to all intents and purposes ; and if the infant 
 owner died under twenty-one, the land purchased with his per- 
 sonalty would go to his legal personal representative, and not 
 to his heir.^ 
 
 A guardian cannot elect for his infant ward to change the 
 nature of his property ; thus, where money is directed to be 
 laid out in land, and the person entitled to it is an infant, the 
 guardian cannot elect to take it as money any more than the 
 infant himself.'^ 
 
 Where trustees or guardians have conferred upon them by the Powers of sale 
 instrument under which they act a power of sale of realty, then guai^dians may 
 they can exercise it; and if a particular time for the sale Jg be exercised by 
 appointed, they in their discretion can postpone the sale if for 
 the infant's benefit ; ° but even for his benefit they cannot anti- 
 cipate it ; ' and if they have a discretionary power to postpone a 
 sale, a hond fide exercise of their discretion as to the time and 
 mode of sale will not be interfered with.^ Where there is a power 
 for sale, the trustees have an implied power to give receipts, 
 otherwise the intention of the donor could not be carried out.^ 
 Even when there was no power of sale under which the trustees when the 
 or guardians could act, the Court of Chancery used to direct sales ^j^gj^ ^g^ie 
 of infants' realty in suits by mortgagees, or in administration i"^ ^^ absence 
 
 J ./oo' r-i-"* power. 
 
 suits ; and infants will be bound by the decrees of the Court m in suits for 
 such suits just as if they were adults ; thus, where the prede- adminkto *°'* 
 
 1 Darley v. Barley, 2 Jo. & Lat. 752, 758. ^ i Vict. 0. 26, s. 7. ' ' 
 
 '^ Inwood T. Twyne, Amt. 417. 
 
 ^ Ashhurton v. AsKburton, 6 Vea. 6. ^ See Seeley v. Jago, i P. Wme. 389. 
 
 ' Morris v. Morris, 6 W. R. 493. 
 
 '' Johnstone v. Baber, 8 Beav. 233 ; and see Want v. Stallihrass, L. R. 8 Ex. 175. 
 
 s Be Blake, Jones v. Blalee, 29 Gh. D. 913. 
 
 ^ Breedon v. Breedon, i Riiss. & Mjl. 413. 
 
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666 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 also by charg- 
 ing costs on the 
 inherita.ncR. 
 
 E. S. 0. 1883 ; 
 Ord. LI. r. I. 
 
 Statutes en- 
 larging the 
 Jurisdiction of 
 the Court and 
 the powers of 
 guardians in 
 the matter of 
 
 Partition Act, 
 
 cessor in title of an infant had mortgaged his lands and died 
 without discharging the incumbrance, and the mortgagee desired 
 to foreclose, the Court could order a sale of the lands when it 
 was to the infant's advantage to sell rather than be foreclosed;' 
 and since realty has been made assets for the payment of all 
 kinds of debts, though the heir or devisee' be an infant, the Court 
 can direct the lands of the ancestor or devisor to be sold.'' It has 
 now also jurisdiction to raise money by way of mortgage for the 
 payment of debts.^ The Court was formerly enabled to decree a 
 conversion by way of sale or mortgage of the estate of an infant 
 where he was absolutely entitled (but not otherwise), by declaring 
 certain costs incidental to the management of his estate to be a 
 charge on the inheritance, and directing them to be raised and 
 discharged ; '' but this practice was principally followed where the 
 property was small.^ It is now provided that " if in any cause or 
 matter relating to real estate, it shall appear necessary or expe- 
 dient that the real estate or any part thereof should be sold, the 
 Court or a Judge may order the same to be sold, and any party 
 bound by the order and in possession of the estate or in the 
 receipt of the rents and profits thereof, shall be compelled to 
 deliver up such possession or receipt to the purchaser, or such 
 persons as may be thereby directed."^ 
 
 In order to meet the growing requirements of the times, which 
 tend more and more to render the transfer of land easy and expe- 
 ditious, and to assimilate it in that respect to personalty, various 
 statutes have been passed for that purpose, of which the following 
 are the most important: — Partition Act, 1868.' By section 3 it 
 is enacted that " in a suit for partition, where, if this Act had 
 not been passed, a decree for partition 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 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 notwithstanding the 
 dissent or disability of any others of them, direct a sale of the 
 
 1 15 & 16 Vict. 0. 86, s. 48. Sifken v. Davis, Kay, Appdx. 21. 
 
 "- 4 Geo. IV. & I Wm. IV. c. 47, s. ii ; Brook v. Smith, 2 R. & M. 73. 
 
 ■■ 2 & 3 Vict. 0. 60. 
 
 ■> Olooer V. Barlow, Chamb. Inf. 568 ; and 21 Ch. D. 788 n. ; and see Jackson v. 
 Talbot, 21 Ch. D. 786. 
 
 15 Davis V. Turvey, 8 L. T. 378. 
 
 « Rules of the Supreme Court, 1883; Ord. li. r. i. This rule is based upon 
 15 & 16 Vict. 0. 86, B. 55 (Chancery Procedure Acl, 1852), but does not confer any new 
 power on the Court to order a sale. Be Robinson, Pickard v. Wheater, 31 Ch. D. 247. 
 
 ' 3 1 & 32 Viot. c. 40. 
 
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OH. VI.] RIGHTS AND DUTIES OF GUARDIAN (proprietary). G67 
 
 property accordingly, and may give all necessary or proper con- 
 sequential directions." The Court can deal with the interests of 
 persons unborn, or not sui juris, by declaring them to be trustees 
 ■within section 30 of the Trustee Act, 1850.^ At one time it 
 was a matter of doubt whether in a partition suit an infant (being 
 under a disability) could pray for a sale of the property instead 
 ■of a partition ; ^ accordingly by the Partition Amendment Act, Partition 
 1876,' it was provided, to lay any such doubt, that in an action Act, 1876. 
 for partition a request for sale may be made, or an undertaking 
 to purchase given on the part of an infant by the guardian or 
 other person authorized to act on behalf of the infant. But it 
 was further provided that the Court should not be bound to 
 comply with any such request or undertaking on the part of an 
 infant unless it appeared that the sale or purchase would be for 
 his benefit. Where children not yet in esse may become entitled 
 to real property, the Court has no power to order either a parti- 
 tion or a sale of such property, unless the parties applying prove 
 to the satisfaction of the Court that it is necessary or expedient 
 that the property or any part of it should be sold, in which case 
 the Court has power to make such an order ; but if it is not 
 shown that it is necessary or expedient, it has no such power.'' A 
 tenant for life may make a partition of the property under the 
 Settled Land Acts, 1882' and 1884." 
 
 Under the Settled Estates Act, 1877,' "it shall be lawful for saie: Settled 
 the Court, if it shall deem it proper and consistent with a due ^g^*^*®^ ^''^' 
 regard for the interests of all parties entitled under the settle- 
 ment,' and subject to the provisions and restrictions in this 
 Act' contained, from time to time to authorize a sale of the Power of Court 
 
 T ^ if j.ii ~\ 1 i_ e j_* T to autliorize 
 
 whole or any parts of any settled estates, or 01 any timber g^j^g ^f settled 
 (not being ornamental timber) growing on any settled estates, estates. 
 and every such sale shall be conducted and confirmed in the 
 same manner as by the rules and practice of the Court for 
 the time being is or shall be required in the sale of lands sold 
 under a decree of the Court." 
 
 " It shall be lawful for the Court, if it shall deem it proper and 
 consistent with a due regard for the interests of all parties entitled 
 under the settlement, and subject to the provisions and restric- 
 tions in this Act contained, from time to time to direct that any 
 
 ^ 13 & 14 Vict. 0. 60 ; Lees v. Ooulton, L. R. 20 Eq. 20 ; Basnett v. Moxon, 
 Jj. E. 20 Eq. 182. 
 
 ^ See Young v. Young, L. E. 13 Eq. 175 n. ; France v. France, L. R. 13 Eq. 173 ; 
 Davey v. Wiethshach, L. R. 15 Eq. 269 ; Qrove v. Comyn, L. R. 18 Eq. 387. 
 
 2 39 & 40 Vict. c. 17, B. 6. 
 
 ' E. S. C, Ord. LI. r. i ; Miles v. Jarvis, W. N. 1883, 203. 
 
 ' 45 & 46 Vict. 0. 38, S8. 3, 45. " 47 Vict. c. 18, n. J. 
 
 ' 40 & 41 Vict., 0, 18, s. 16. 
 
 8 For what is a " settlement " under this Act, see post, p. 672. 
 
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668 GUAEDIAN AND WARD. [part hi. 
 
 part of any settled estates be laid out for streets, roads, paths, 
 squares, gardens, or other open spaces, sewers, drains, or water- 
 courses, either to be dedicated to the public or not ; and the 
 Court may direct that the parts so laid out shall remain vested in 
 the trustees of the settlement, or be conveyed to or vested in any 
 other trustees upon such trusts for securing the continued appro- 
 priation thereof to the purposes aforesaid, in all respects, and with 
 such provisions for the appointment of new trustees, when required, 
 as by the Court shall be deemed advisable." ' 
 Settled Land Large powers of sale are given to the trustees of infants who 
 1890.' 3'i"6 possessed of real property under the provisions of the Settled 
 
 Powers of Land Acts 1882^ and 1890.^ " Where a person, who is in his 
 lands of own right seised of or entitled in possession to land, is an infant, 
 
 m an s. then for the purposes of this Act the land is settled landj and the 
 
 infant shall be deemed tenant for life thereof."^ "Where a 
 tenant for life or a person having the powers of a tenant for life 
 under this Act, is an infant, or an infant would, if he were of full 
 age, be a tenant for life, or have the powers of a tenant for life 
 under this Act, the powers of a tenant for life under this Act 
 may be exercised on his behalf by the trustees of the settlement, 
 and if there are none, then by such person and in such manner 
 as the Court, on the application of a testamentary or other 
 guardian or next friend of the infant, either generally or in a 
 Powers exer- particular instance, orders.'"^ The powers of a tenant for life 
 tenant for life, lender this Act, which may be exercised by trustees or guardians 
 
 on behalf of an infant, are thus defined in section 3 : — 
 Sale. i. "He may sell the settled land, or any part thereof, or any 
 
 easement, right, or privilege of any kind over or in relation to the 
 same; and 
 
 ii. " Where the settlement comprises a manor — may sell the 
 seignory of any freehold land within the manor, or the freehold 
 and inheritance of any copyhold or customary land, parcel of the 
 manor, with or without any exception or reservation of all or any 
 mines or minerals, or of any rights or powers relative to mining 
 purposes, so as in every such case to effect an enfranchisement ; and 
 Exchange. iii. " May make an exchange of the settled land, or any part 
 
 thereof, for other land, including an exchange in consideration of 
 money paid for equality of exchange ; and 
 Partition. iv. " Where the settlement comprises an undivided share in 
 
 land, or, under the settlement, the settled land has come to be 
 held in undivided shares— may concur in making partition of the 
 
 1 Sect 20. ^ 45 & 46 Vict. 0. 38 
 
 » 53 & 54 Vict. c. 69, 8. 10, suk-s. 2 ; Brucey. Marquis of Aihslury,[lSg2] A'^V- 
 Cas. 356. 
 
 4 yect. 59. " Sect. 60. 
 
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CH. VI .] RIGHTS AND DUTIES OF GUARDIAN (proprietary). 669 
 
 entirety, including a partition in consideration paid for equality of 
 partition. 
 
 (i) " Every sale shall be made at the best price that can 
 reasonably be obtained. 
 
 (2) " Every exchange and every partition shall be made for 
 the best consideration in land or in land and money that can 
 reasonably be obtained. 
 
 (3) "A sale may be made in one lot or in several lots, and 
 either by auction or by private contract. 
 
 (4) " On a sale the tenant for life may fix reserve biddings 
 and buy in at an auction. 
 
 (5) "A sale, exchange, or partition may be made subject to any 
 stipulations respecting title, or evidence of title^ or other things. 
 
 (6) " On a sale, exchange, or partition any restriction or reser- 
 vation with respect to building on or other user of land, or with 
 respect to mines and minerals, or with respect to or for the pur- 
 pose of the more beneficial working thereof, or with respect to 
 any other thing, may be imposed or reserved and made binding, 
 as far as the law permits, by covenant, condition, or otherwise, on 
 the tenant for life and the settled land, or any part thereof, or on 
 the other party and any land sold or given in exchange or on 
 partition to him.' 
 
 (7_) " An enfranchisement may be made, with or without a 
 re-grant of any right of common or other right, easement, or 
 privilege, theretofore appendant or appurtenant, to be held or 
 enjoyed with the land enfranchised, or reputed so to be. 
 
 (8) " Settled land in Bagland shall not be given in exchange 
 for land out of England.'' 
 
 Before the Settled Land Act, 1882, there was no power in the Heirlooms, 
 Court of Chancery to order the sale of heirlooms simply on the 
 ground of benefit of the parties ; ^ but now a tenant for life may 
 sell such heirlooms or any part of them,' where the sanction of the 
 Court is obtained.^ Heirlooms that devolve with a dignity, as 
 well as with land may be sold.* The tenant for life may bid at 
 the sale.° The Court may refuse to order their sale.' Trustees 
 having power to sell settled lands have power to sell heirlooms.' 
 Where heirlooms are sold, the money arising from their sale may 
 be applied in discharge of incumbrances on the settled land without 
 keeping such incumbrances on foot for the benefit of the infant 
 
 1 See 53 & 54 Vict. c. 69, s. 5. 
 
 2 D' Eyncourt v. Gregory, 3 Ch. D. 635. ^ Sect. 37 (i). 
 
 * Ibid, sub-8. 3. Be Brown's Will, 27 Ch. D. 179 ; Be Houghton Estate, 30 Ch. D. 
 102; Be Duke cf Marlborough's /Settlement, Duke of Marlborough v. Marjoribanks, 
 32 Ch. D. I. ^ Be Bivett Oarnac's mil, 30 Ch. D. 136. 
 
 * Bi Brown's Will (ubi swp.). ' Be Beaumont' s Settled Estates, 58 L. T. gi6. 
 8 Constable v. Constable, 32 Ch. D. 233. 
 
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670 GUAEDIAN AND WARD. [part hi. 
 
 remainder man, in whom the heirlooms would vest on attaining 
 
 Proceeds of majority.' The money arising from the sale of heirlooms is 
 
 capital money and to be invested or applied as other capital money 
 
 arising under the Act, or may be invested in the purchase of 
 
 other chattels to be settled and held on the same trusts as the 
 
 original heirlooms.^ 
 
 Scope of the The aim and scope of the Act is to increase the powers of 
 
 toc'r °asf *^ *° *lie tenant for life, but less for his benefit than the well-being 
 
 powers of of the settled land, though the benefit of the former is not to 
 
 tenant for life. , i t i , 
 
 be neglected by the trustees, who are to carry out the pur- 
 poses of the Act;^ and where the owner of the land (whether 
 tenant in fee or in tail or for life) is an infant, the option of 
 putting the provisions of this Act in force (to be personally 
 exercised by an adult tenant for life) must be exercised by the 
 trustees of the settlement on his behalf.* Where an infant tenant 
 for life under the Act has testamentary guardians appointed for 
 him with certain powers of sale and leasing, and there are also 
 trustees under a settlement with certain powers to be exercised at 
 the request and by the directions of the testamentary guardians, 
 the testamentary guardians can only exercise their powers with 
 the consent of the trustees of the settlement ; and the latter can 
 put in force their powers under the settlement only at the request 
 and by the direction of the testamentary guardians during 
 minority ; but where the trustees of the settlement can under the 
 Act exercise powers purely statutory, that is, such as are con- 
 ferred upon them solely by the Act, the consent of the testamen- 
 tary guardians is not requisite." The trustees who may so act 
 are either the trustees of the settlement (with a power of sale) 
 or persons appointed in pursuance of this Act. A separate set 
 of trustees may be appointed for any part of the trust property 
 held on trusts distinct from those relating to any other part or 
 parts of the trust property, notwithstanding that no new trustees 
 or trustee are or is to be appointed for other parts of the trust 
 property, and any existing trustee may be appointed or remain 
 one of such separate set of trustees, or if only one trustee was 
 originally appointed, then one separate trustee may be so appointed 
 for the first mentioned part." It shall not be obligatory to appoint 
 more than one new trustee where only one trustee was originally 
 
 1 Re Bulce of Marlhorough's Settlement, Dulce of Marlborough v.Marjoribanlcs 
 32 Ch. D. 1. ^ Sect. 37, sub-s. 2. 
 
 3 Brtwe V. Marquis of Aileshury, [1892] App. Cas. 356. .... . , , 
 
 * This as has been seen, is effected by turning an infant who is in his own rigbt 
 Sliced of or entitled in possession to land into a tenant for life for the purposes of the 
 Act (Reef. 59). See ante, p. 668. 
 
 " Me Dul-e of K etc castle's Estates, 24 Ch. D. 129. 
 
 « 56 & 57 Vict. c. 53, s. 10, Mib-s. 2 (/). 
 
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CH. VI.] EIGHTS AND DUTIES OF GUARDIAN (peopbietaby). 671 
 
 appointed, or to fill up the original number of trustees where 
 more than two trustees were originally appointed, but except 
 where only one trustee was originally appointed, a trustee shall 
 not be discharged under this section from his trust unless there 
 will be at least two trustees to perform the trust.' The Court 
 will not appoint as trustees under this Act the solicitor of the 
 tenant for life,^ nor persons who are nearly related to each other,^ 
 nor a remainderman.'' But a woman may be appointed where she 
 appears to have exceptional qualifications.'' 
 
 To put in force the powers of the Court under the Settled Procedure in 
 Estates Act, 1877, the application to the Court must be by ^"tsi'n motion. 
 petition ;° but under the Conveyancing and Law of Property Act, 
 1881/ and the Settled Land Act, 1882, it may be by way of 
 summons at chambers, or by petition.^ 
 
 Where an infant's real or personal estate has for his benefit Equity for con- 
 been converted, either by direction of the Court, or by trustees font's'hek-at- 
 and guardians, there is no equity on the part of the heir-at-law, laworpersonai 
 
 ° , . , representative. 
 
 or of the legal personal representative, to take the property in 
 any other form than that in which it is found at the death of the 
 infant. It is otherwise where the conversion has been altogether 
 wrongful, or an equity for reconversion arises under the provisions 
 of the Settled Estates Act, 1877.' Under the Rules of the 
 Supreme Court, 1883," the Court of Chancery has no new power 
 of sale of an infant's real estate conferred upon it, and can only 
 order a sale when it is necessary or expedient for the purposes of 
 the action before it that the property should be sold ; and the 
 Court, as a rule, can only approve of a sale which the executors 
 or trustees of the will or deed to which the proceedings before 
 the Court relate could have made themselves ;" and where a sale 
 is ordered in lieu of a partition, the Court is very strict in pro- 
 tecting the interests of the infant.'^ 
 
 The leasing powers of trustees or guardians of their wards' Leasing 
 estates will now be discussed. The powers of guardians, testa- tri^t6e8°or 
 mentary,'^ or in socage," to deal with their wards' real estate gi^ardians : 
 
 ,.,.,•-,. ^ , J, . . originally of a 
 
 (in which they had an interest) by way of granting or takiag limited nature, 
 leases was very limited ; and at law they had no power to give a 
 
 1 56 & 57 Vict. c. 53, s. 10, sub-s. 2 (c). 
 ^ Be Kemp's Settled Estates, 24 Ch. D. 485. 
 ^ lie Knowles' Settled Estates, 27 Gh. D. 707. 
 ^ EePaine's Trusts, 28 Cli. D. 725. 
 
 5 Ee Feake's Settled Estates, [1894] 3 Ch. 520. " 45 & 46 Vict. c. 38, s. 23. 
 
 ' Sect. 69, sub-sect. 3 ; see lie Lillmall's Settlement, 30 W. E. 343. 
 * Sect. 46, sub-sect. 3. 
 
 ' 40 & 41 Vict. c. 18, ss. 34-36. See Foster v. Foster, i Ch. D. 587. In this 
 case Steed v. Preece, L. E. 18 Eq. 192 was distinguished. 
 
 10 Ord. LI. r. I ; Ord. lv. 1-. 3 (/). 
 
 11 Be Bobinson, Fichard v. Wheater, 31 Gli. D. 247. 
 
 1'- Willis V. Will's, 61 L. T. 610. ''' Ante, p. 600. " Ante, p. 591. 
 
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G7l> 
 
 GUARDIAN AND WAED. 
 
 [part III. 
 
 II Geo. IV. and 
 I Wm. IV. c. 
 6S- 
 
 Leases 
 
 Settled 
 Estates Act, 
 1877. 
 
 DeiiDition of 
 "settlement." 
 
 Definition of 
 
 "settled 
 
 estates." 
 
 Powers of 
 leasing under 
 the Act. 
 
 stranger any interest in their wards' land beyond the period at 
 which their own control over it ceased. A guardian appointed 
 by the Court had no power of making a lease valid at law, because 
 he had no estate in the ward's property ; and the Court itself had 
 no inherent jurisdiction to grant leases of an infant's property to 
 last beyond his minority.' The first step towards enlarging the 
 powers of trustees and guardians of infants was made in 1830, 
 in which year an Act^ was passed enabling the guardians of 
 infants entitled to leases for a life or lives, or for any term of 
 years, to apply to the Court of Chancery to surrender such leases 
 and renew them;^ and where infants held under covenants to 
 renew leases, they and their guardians under the direction of 
 the Court might execute new leases of the same premises.'' 
 So, too, where it was for the infant's benefit, the Court might 
 authorize leases of their lands to be made for various purposes." 
 Under this Act a lease might be granted to extend beyond 
 minority.' 
 
 This enactment left the powers of guardians still very much 
 restricted, and in order still further to widen them, the Settled 
 Estates Act, 1856,' was passed ; this was an Act to facilitate 
 leases and sales of settled estates. This statute and its amending 
 Acts have been repealed, and their provisions consolidated into 
 one by the Settled Estates Act, 1877.^ A "settlement" under 
 this Act is thus defined : — " A settlement shall signify any Act of 
 Parliament, deed, agreement, copy of Court roll, will, or other 
 instrument, or any number of such instruments, under or by 
 virtue of which any hereditaments of any tenure or any estates 
 or interests in any such hereditaments stand limited to or in trust 
 for any such persons by way of succession, including any such 
 instruments affecting the estates of any one or more of such 
 persons exclusively." ° 
 
 " The term ' settled estates ' as used in this Act shall signify 
 all hereditaments of any tenure, and all estates or interests in 
 any such hereditaments which are the subject of a settlement.'"" 
 
 The chief provisions of this Act in reference to the powers of 
 leasing by trustees and guardians are as follows : — " It shall be 
 lawful for the Court, if it shall deem it proper and consistent 
 with a due regard for the interests of all parties entitled under 
 the settlement, and subject to the provisions and restrictions in 
 this Act contained, to authorize leases of any settled estates, or 
 
 1 Simp. Inf. 367 and the cases there cited. ^ 11 Geo. IV. and 1 Wm. IV. c. 65. 
 
 2 Sect. 12. This applies to leases to which the infants are beneficially entitled ; Be 
 Orifitlis (infants), 29 Ch. D. 248. * Sect. 16. ^ Sect. 17. 
 
 '^ Ansteu v. Eobson, 2 W. R. 46 ; see Simp. Inf 368, 369. 
 
 ' 19 & 20 Vict. u. 120. 8 40 & 41 Vict. 0. 18. » Sect. 2. " Ibid. 
 
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CH.vi.] EIGHTS AND DUTIES OF GUAEDIAN (peoprietaey). 673 
 
 of any rights or privileges over or affecting any settled estates, 
 for any purpose whatsoever, whether involving waste or not, pro- 
 vided the following conditions be observed : — 
 
 " First, every such lease shall be made to take effect in pos- 
 session at or within one year next after the making thereof, and 
 shall be for a term of years not exceeding for an agricultural or 
 occupation lease, so far as relates to estates in England twenty- 
 five years, or so far as relates to estates in Ireland thirty-five 
 years, and for a mining lease,' or a lease of water mills, way 
 leaves, water leaves, or other rights or easements forty years, and 
 for a repairing lease sixty years, and for a building lease ninety- 
 nine years : Provided always, that any such lease (except an 
 agricultural lease) may be for such term of years as the Court 
 shall direct, where the Court shall be satisfied that it is the usual 
 custom of the district and beneficial to the inheritance to grant 
 such a lease for a longer term than the term hereinbefore speci- 
 fied on that behalf. 
 
 " Secondly, on every such lease shall be reserved the best 
 rent or reservation in the nature of rent, either uniform or not, 
 that can be reasonably obtained, to be made payable half yearly 
 or oftener without taking any fine or other benefit in the nature 
 of a fine : Provided always, that in the case of a mining lease, 
 a repairing lease, or a building lease, a peppercorn rent or any 
 smaller rent than the rent to be ultimately made payable may, 
 if the Court shall think fit so to direct, be made payable during 
 all or any part of the first five years of the term of the lease. 
 
 " Thirdly, where the lease is of any earth, coal, stone, or 
 mineral, a certain portion of the whole rent or payment reserved 
 shall be from time to time set aside and invested as hereinafter 
 mentioned, namely, when and so long as the person for the time 
 being entitled to the receipt of such rent is a person who by 
 reason of his estate or by virtue of any declaration in the settle- 
 ment is entitled to work such earth, coal, stone, or mineral for 
 his own benefit, one-fourth part of such rent, and otherwise 
 three-fourth parts thereof. And in every such lease sufficient 
 provision shall be made to ensure such application of the afore- 
 said portion of the rent by the appointment of trustees or other- 
 wise as the Court shall deem expedient. 
 
 "Fourthly, no such lease shall authorize the felling of any 
 trees except so for as shall be necessary for the purpose of clear- 
 ing the ground for any buildings, excavations, or other works 
 authorized by the lease. 
 
 " Fifthly, every such lease shall be by deed, and the lessee 
 
 ' Mining leases may now be increased to sixty years : 45 & 46 "Vict. c. 38, s. 6. 
 
 * 2 TT 
 
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674 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Court may vest 
 its leasing 
 powers in 
 trustees. 
 
 Gonveyanoing 
 and Law of 
 Property Act, 
 1881. 
 
 Settled Land 
 Acts, 1882 
 & 1890. 
 
 Powers of 
 leasing under 
 the Act. 
 
 shall execute a counterpart thereof, and every such lease shall 
 contain a condition for re-entry on non-payment of the rent for a 
 period of twenty-eight days ' after it becomes due, or for some 
 less period to be specified on that behalf.^ 
 
 " Subject and in addition to the conditions hereinbefore men- 
 tioned, every such lease shall contain such covenants, conditions, 
 and stipulations as the Court shall deem expedient with reference 
 to the special circumstances of the demise/ 
 
 " The power to authorize leases conferred by this Act may be 
 exercised by the Court either by approving of particular leases or 
 by ordering that powers of leasing, in conformity with the pro- 
 visions of this Act, shall be vested in trustees in manner herein- 
 after mentioned."^ The Court may thus vest its own powers of 
 leasing in trustees, and leases properly executed by them shall be 
 as valid as if executed by the Court itself.* 
 
 Under the Conveyancing and Law of Property Act, 1881,* 
 " where a person in his own right seised of or entitled to an 
 estate in fee simple, or for any leasehold interest at a rent, is an 
 infant, the land shall be deemed to be a settled estate within the 
 Settled Estates Act, 1877.^'' This includes land devised to 
 trustees upon trust for an infant.* The effect of this is to confer 
 upon the Court or the infant's trustees wide and considerable 
 powers of leasing ; and the power of leasing can be exercised 
 when the infant is seised in fee in reversion.' 
 
 Under the Settled Land Acts, 1882," and 1890," the powers 
 of trustees and guardians in the matter of leases are still further 
 increased. When an infant who is in own right seised of or 
 entitled in possession to land is turned into a tenant for life 
 under the Act,'^ the statutory powers of a tenant for life are to be 
 exercised by his trustees.^' Thus, they may lease the settled 
 land, or any part thereof, or any easement, right, or privilege of 
 any kind, over or in relation to the same, for any purpose what- 
 ever, whether involving waste or not, for any term not exceeding 
 — (i) in case of a building lease, ninety-nine years ; (ii) in case 
 of a mining lease, sixty years ; (iii) in case of any other lease, 
 twenty-one years." The Court may authorize an extension of 
 the above terms for building and mining purposes if the custom 
 
 I The period for re-entry is now thirty days instead of twenty-eight ; 45 & 46 Vict, 
 c- 38, s. 7 (3). ■ ^ Sect. 4. ' Sect. 5. _ 
 
 ■* Sect. 10. Under this section, the Court may (i) either approve of particular 
 leases, (2) or vest powers of leasing in trustees. Where the lease is approved hythe 
 Court, and the Court appoints a lessor to execute the lease, the covenants entered into 
 by the lessor enure for the infant's benefit (sect. 12). 
 
 5 Sect. 13. * 44'& 45 "Vict. c. 41. ^ Sect. 41. 
 
 8 Me Sparrow's Settled Estate, [1892] I Ch. 412. 
 
 ' Me Letchford, 2 Ch. D. 719. i" 45 & 4^ Vict. c. 38. „ „ , ^ 
 
 II 53 & 54 Vict. 0. 69. i'^ Sect. 59. " Sect. 60. " Sect. 6. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUAEDIAN (peoprietart). 675 
 
 or requirements of the district in which the land is situated 
 require a longer period ; ' but the Court will exercise this power 
 with circumspection ; and where an infant tenant in tail was 
 eighteen years old, and opposed a scheme by which a portion of 
 his estate was to be let for 200 years for building purposes, the 
 Court refused to grant the trustees general authority to make 
 leases for such a term.' 
 
 Their leasing power is still further increased f thus, it extends 
 to the making of — 
 
 i. " A lease for giving effect to a contract entered into by any 
 of his predecessors in title for making a lease, which if made by 
 the predecessor, would have been binding on the successors in 
 title ; and 
 
 ii. "A lease for giving an effect to a covenant of renewal, 
 performance whereof could be enforced against the owner for the 
 time being of the settled land. 
 
 iii. " A lease for confirming, as far as may be, a previous 
 lease, being void or voidable ; but so that every lease, as and 
 when confirmed, shall be such a lease as might at the date of the 
 original lease have been lawfully granted, under this Act, or 
 otherwise, as the case may require. 
 
 A tenant for life has further powers under the Settled Land 
 Act, 1890, in respect of ordinary leases,* mining leases,' land 
 granted for building purposes,* and mansion-house and park.' 
 
 (i) "A tenant for life may accept, with or without considera- Surrenders. 
 tion, a surrender of any lease of settled land, whether made under ^°'"^J^° 
 
 , '' accept sur- 
 
 this Act or not in respect of the whole land leased, or any part render. 
 thereof, with or without an exception of all or any of the mines 
 and minerals therein, or in respect of mines and minerals, or any 
 of them. 
 
 (2) " On a surrender of a lease in respect of part only of 
 the land or mines and minerals leased, the rent may be appor- 
 tioned. 
 
 (3) " On a surrender, the tenant for life may take of the land 
 or mines and minerals surrendered, or of any part thereof, a new 
 ■or other lease, or new or other leases in lots. 
 
 (4) " A new or other lease may comprise additional land 
 •or mines and minerals, and may reserve any apportioned or other 
 rent. 
 
 (5) " On a surrender, and the making of a new or other lease, 
 •whether for the same or for any extended or other term, and 
 
 1 Sect. 10. 2 Cecil v. Langdon, 54 L. T. 418. ^ Sect. 12. 
 
 « Sect. 7. ^ Sect. 8. « Sect. 9, 
 
 •' Sect. 10. See Brikce v. Marquis of Ailesbv/ry, [1892] App.Cas. 356. 
 
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G7C 
 
 GUARDIAN AND WARD. 
 
 [PAET III, 
 
 Powers of 
 management 
 of ward's real 
 estate. 
 
 Conveyancing 
 and Law of 
 Property Act, 
 
 whether or not subject to the same or to auy other covenants^ 
 provisions, or conditions, the value of the lessee's interest in the' 
 lease surrendered may be taken into account in the determination 
 of the amount of the rent to be reserved, and of any fine to b& 
 taken, and of the nature of the covenants, provision, and con- 
 ditions to be inserted in the new or other lease. 
 
 (6) " Every new or other lease shall be in conformity with 
 this Act." 
 
 A fine on a lease granted under the Settled Land Acts, 1 882, i» 
 to be deemed capital money arising under that Act.' A build- 
 ing lessee under this Act may exercise an option after not less^ 
 than ten years from the granting of the lease to purchase the 
 property ; ^ and the purchase money is to be deemed for all 
 purposes capital money arising under the Settled Land Act, 
 1882.' 
 
 The trustees or guardians of infants, whether tenants for life 
 or tenants in tail by purchase, were as a rule empowered under 
 the settlement constituting their wards tenants for life, to exercise 
 certain powers of management, but they were compelled to 
 exercise those powers strictly within the terms of their authority, 
 on pain of being rendered liable for a breach of trust if any 
 damage was sustained by their wards. The Legislature, to in- 
 crease these powers, and to supply them where they did not exist, 
 invested the Court of Chancery with power to authorize them (on 
 application to it) to exercise the powers defined by the various 
 Acts passed for that purpose. 
 
 Guardians and trustees have now wide powers of management 
 of the real estate of their wards conferred upon them by the 
 Conveyancing and Law of Property Act, 1881.* Section 41 of 
 that Act provides as follows : — (l) " If and as long as any person 
 who would but for this section be beneficially entitled to the 
 possession of any land is an infant, and, being a woman, is also 
 unmarried, the trustees appointed for this purpose by the settle- 
 ment, if any, or if there are none so appointed, then the persons, 
 if any, who are for the time being under the settlement trustees 
 with power of sale of the settled land, or of part thereof, or with 
 power of consent to or approval of the exercise of such a power 
 of sale, or if there are none, then any persons appointed as 
 trustees for this purpose by the Court, on the application of a 
 guardian or next friend of the infant, may enter into and con- 
 tinue in possession of the land, and in every such case the subse- 
 quent provisions of this section shall apply. 
 
 1 47 & 48 Vict. i;. 18, S. 4. 
 
 3 52 & S3 Vict. c. 36, s. 3. 
 
 ^2 52 & S3 Vict. c. 36, s. 2. 
 ^ 44 & 4S Vict. c. 41. 
 
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«H. VI.] RIGHTS AND DUTIES OF GUARDIAN (proprietaey). 677 
 
 (2) "The trustees shall manage or superintend the manage- Management 
 ment of the land, with full power to fell timber or to cut under- cuttog'aaci 
 wood from time to time in the usual course for sale, or for repairs J?i'™s of 
 or otherwise, and to erect, pull down, rebuild, and repair houses 
 
 and other buildings and erections, and to continue the working 
 of mines, minerals, and quarries which have usually been worked 
 and to drain or otherwise improve the land or any part thereof, 
 and to insure against loss by fire, and to make allowances to and 
 arrangements with tenants and others, and to determine tenancies, 
 and generally to deal with the land in a proper and due course 
 of management, but so that where the infant is impeachable for 
 waste, the trustees shall not commit waste, and shall cut timber 
 •on the same terms only and subject to the same restrictions on 
 and subject to which the infant could, if of full age, cut the 
 same. 
 
 (3) "The trustees may from time to time, out of the income 
 •of the land, including the produce of the sale of timber and 
 underwood, pay the expenses incurred in the management, or in 
 the exercise of any power conferred by this section, or otherwise 
 in relation to the land, and all outgoings not payable by any 
 •tenant or other person, and shall keep down any annual sum, 
 and the interest of any principal sum, charged on the land. 
 
 (4) "The trustees may apply at discretion any income which, 
 in the exercise of such discretion, they deem proper, according to 
 the infant's age, for his or her maintenance, education, or benefit, 
 or pay thereout any money to the infant's parent or guardian, to 
 be applied for the same purposes. 
 
 (5) " The trustees shall lay out the residue of the income of Residue to be 
 ■the land in investment on securities on which they are by the aulhorize'd' 
 settlement, if any, or by law, authorized to invest trust money, securities. 
 with power to vary investments ; and shall accumulate the 
 
 income of the investments so made in the way of compound 
 interest, by from time to time similarly investing such income 
 and the resulting income of investments, and shall stand pos- 
 sessed of the accumulated fund arising from income of the 
 land and from investments of income on the trusts following, 
 iiamely: 
 
 i. If the infant attains the age of twenty-one years, then 
 in trust for the infant. 
 ■ ii. If the infant is a woman and marries while an infant. Infant married 
 then in trust for her separate use, independently of 
 her husband, and so that her receipt after she marries, 
 and though still an infant, shall be a good discharge ; 
 but 
 
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678 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Accumulations 
 during mino- 
 rity. 
 
 Trustees' 
 receipts. 
 
 iii. If the infant dies while an infant, and being a woman 
 without having been married, then, where the infant 
 was under a settlement tenant for life, or by purchase 
 tenant in tail or tail male or tail female, on the trusts, 
 if any, declared of the accumulated fund by that settle- 
 ment, but where no such trusts are declared or the 
 infant has taken the land from which the accumulated 
 fund is derived by descent, and not by purchase, or 
 the infant is tenant for an estate in fee simple, abso- 
 lute or determinable, then in trust for the infant's per- 
 sonal representatives, as part of the infant's personal 
 estate ; 
 but the accumulations, or any part thereof, may at any time be 
 applied as if the same were income arising in the then current 
 year. 
 
 (6) " Where the infant's estate or interest is in an undivided 
 share of land, the powers of this section relative to the land may 
 be exercised jointly with persons entitled to possession of, or 
 having power to act in relation to, the other undivided share or 
 shares. 
 
 (7) " This section applies only if and as far as a contrary 
 intention is not expressed in the instrument under which the 
 interest of the infant arises, and shall have effect subject to the 
 terms of that instrument and to the provisions therein con- 
 tained. 
 
 (8) " This section applies only where that instrument comes- 
 into operation after the commencement of this Act."' 
 
 Under the Settled Land Act, 1882,^ provision is made for the 
 giving of receipts by trustees ; thus, " the receipt in writing of 
 the trustees of a settlement, or where one trustee is empowered 
 to act, of one trustee, or of the personal representatives or 
 representative of the last surviving or continuing trustee, for any 
 money or securities paid or transferred to the trustees, trustee, 
 representatives, or representative, as the case may be, effectually 
 discharges the payer or transferror therefrom, and from being 
 bound to see the application or being answerable for any loss or 
 misapplication thereof, and in case of a mortgagee or other person 
 advancing money, from being concerned to see that any money 
 advanced by him is wanted for any purpose of this Act, or that 
 no more than is wanted is raised." 
 
 Provision is also made for the protection of trustees both indi- 
 
 1 The effect of this section is to supersede the ordinary form of management 
 chvuses in settlements of real estate, and trustees or guardians acting under such, 
 settlements can exercise these statutory powers though omitted or only partially 
 inseited in the instrument. ^ ^j & ^5 yict. 0. 38, s. 40. 
 
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CH. VI.] EIGHTS AND DUTIES OF GUARDIAN (proprietary). 679 
 
 vidually and generally, and for the reimbursement of the expenses 
 incurred by them in carrying out their trust. 
 
 Each person who is for the time being trustee of a settlement Protection of 
 is answerable for what he actually receives only, notwithstanding individually, 
 his signing any receipt for conformity, and in respect of his 
 own acts, receipts, and defaults only, and is not answerable in 
 respect of those of any other trustee, or of any banker, broker, 
 or other person, or for the insufficiency or deficiency of any 
 securities, or for any loss not happening through his own wilful 
 default.' 
 
 The trustees of a settlement, or any of them, are not liable for Protection of 
 
 . . . . trustees 
 
 giving any consent, or for not making, bringing, taking, or doing generally. 
 any such application, action, proceeding, or thing, as they might 
 make, bring, take, or do ; and in case of purchase of land with 
 capital money arising under this Act, or of an exchange, parti- 
 tion, or lease, are not liable for adopting any contract made by 
 the tenant for life, or bound to inquire as to the propriety of the 
 purchase, exchange, partition, or lease, or answerable as regards 
 any price, consideration, or fine, and are not liable to see to or 
 answerable for the investigation of the title or answerable for a 
 conveyance of land, if the conveyance purports to convey the land 
 in the proper mode, or liable in respect of purchase money paid 
 by them by direction of the tenant for life to any person joining 
 in the conveyance aa a conveying party, or as giving a receipt 
 for the purchase money, or in any other character, or in respect 
 of any other money paid by them by direction of the tenant for 
 life on the purchase, exchange, partition, or lease. ^ The trustees Trustees' re- 
 of a settlement may reimburse themselves or pay and discharge 
 out of the trust property all expenses properly incurred by 
 them.' 
 
 As an infant owner in fee is liable to keep down the interest Duty of trus- 
 on incumbrances, the guardians may devote the rents and profits down charges. 
 of his realty to that purpose ; and in the case of a mortgage, but Owner of fee. 
 no other real incumbrance, to reduce the principal.^ But he need 
 not pay off a charge on the estate ; and it is the practice to 
 make an inquiry w^hether it would be for the benefit of the infant 
 to pay oif the charge. ° When the charge is paid ofi", it will not 
 merge in the iijjieritance, but remain personalty," unless the 
 
 1 Sect. 41. 2 Sect. 42. ^ Sect. 43. 
 
 * See Polmes v. Danby, i Eq. Cas. Abr. 261 ; S. C. Prec. Ch. 137. 
 
 ^ Norhury v. Norhury, 4 Madd. 191. 
 
 8 Forbes v. Moffatt, 18 Ves. 384; Bowling v. Bolton, i Fl. & Kel. 462. In Leys 
 V. Price, 7 Mod. 217, Lord Hardwicke observed (p. 221): "Where an infant is 
 entitled to a personal estate, and also to a real one which is incumbered with debts and 
 mortgages, the Court will direct the personalty to go in discharge of the incumbrances ; 
 yet if will not order the mortgages to be assigned to attend the inheritance, but still to 
 be considered distinctly as personal estate for the benefit of the infant," 
 
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680 
 
 GUARDIAN AND WARD. 
 
 Tenant in tail 
 
 Tenant for 
 life. 
 
 Necessary 
 expenses and 
 repairs. 
 
 Allowed 
 though guar- 
 dian not 
 specifically 
 authorized to 
 expend. 
 
 [PAET III. 
 
 merger can be shown to be beneficial' The tenant for life may 
 sell or mortgage the settled land, or any part, for the purpose of 
 discharging an incumbrance on it.^ 
 
 Though an adult tenant in tail is not bound to keep down the 
 interest on charges except as against the remainderman, yet it ia 
 the duty of those who receive the rents and profits for the infant 
 to apply them in keeping down the interest during the minority.^ 
 This liability of the infant tenant in tail is only as against the 
 remainderman, and his real and personal representatives have no 
 equity against each other to vary the state of things as it existed 
 at his death.* 
 
 As the infant tenant for life is bound to keep down the interest 
 on incumbrances, it is the duty of his guardians so to keep them 
 down.* 
 
 Under the Conveyancing and Law of Property Act, 1881, 
 trustees and guardians have, it has been seen," wide powers con- 
 ferred upon them of managing the lands of their wards, includ- 
 ing the execution of necessary repairs and improvements. To 
 manage properly, and perform the many duties laid upon owners 
 of property, requires the outlay of money from time to time ; and 
 in his account the guardian or trustee will be allowed necessary 
 expenses. Thus, where the infant is bound to renew leases, and 
 the guardian renews them, he will be allowed the cost of renewal, 
 and even has a lien on the estate for the cost.^ The amount to 
 be expended is quite a matter of discretion.' 
 
 A guardian need not be specifically authorized to expend sums 
 on repairs or improvements, but if his expenditure is needful and 
 proper, he will be allowed it ; ° and not only actual guardians 
 and trustees, but also those who have been in possession of the 
 infant's property and made to account as bailifi^s will be allowed 
 expenses for proper repairs and improvements.'" In order to keep 
 the estate in proper repair the guardian may apply surplus rents 
 and profits, or the accumulations ; " and may be authorized to 
 advance part of the personal estate to cultivate the real estate, if 
 for the benefit of the infant's maintenance.'^ Where the repairs 
 have been necessarily incurred, but the income is insufficient to 
 defray the expenses, the Court will authorize the raising of the 
 
 ' See Burgess v. Mawhey, T. & E. 167. 175. ^ 53 & S4 Vict. c. 69, s. ii. 
 
 s 53 &. 54 Vict. c. 69, s. II. *' Bertie v. Earl of Ahingdon, 3 Mer. 560. 
 
 ' Bevel V. Watkinson, 1 Ves. Sen. 93. ^ Ante, pp. 676 et seq. 
 
 ' Davies v. Some, 2 Sch. & Lef. 354. 
 
 * See Bennett v. Wyndham, 29 L. T. 0. S. 138. 
 
 " Umhlehy v. Kirk, 1 C. P. Coop, 254. 
 '" See Pelley v. Barcomhe, 11 W. R. 766. 
 
 " Cotham v. West, i Beav. 381 ; Origgs v. Gibson, 21 W. R. 818. 
 '2 Be Household, Household v. Household, 27 Ch. JD. 553. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUARDIAN (propeietaey). 681 
 
 amount so expended by a mortgage of the estate ;^ also by a sale.^ 
 Where the infant is absolutely entitled, the Court will direct a infant owner 
 .mortgage eyen for prospective repairs, but such repairs must be ^^ '^^' 
 in the nature of salvage.' Mere ornamental improvements will 
 not be allowed for unless they are substantial and beneficial in 
 their nature.^ Where the trustees do not assent to a scheme of 
 improvement under the Settled Land Act, 1882, the tenant for 
 life may apply to the Court under section 44 of the Act.* 
 
 Where the infant is tenant in tail under a settlement, and is infant limited 
 under no covenant to insure the settled premises, and his guardian ^nder cove- 
 devotes a portion of the rents and profit of the estate to paying '^^^^ '" i»™re. 
 -on a policy of insurance of the premises against fire, and the 
 premises are destroyed by fire, and it is subsequently found not 
 beneficial for those interested in the settled property that the 
 .premises should be rebuilt or restored, the insurance money will 
 belong to the infant tenant iu tail as his personal estate, and will 
 ;not be treated as real estate for the benefit of all persons inte- 
 rested in the settled estate." 
 
 A tenant for life is bound to keep the property in a proper infant tenant 
 -State of repair, and will not be allowed by the Court to be re- to\eep pre- 
 couped in respect of money spent in repairs ; ' but as under the ^^es mrepair. 
 Settled Land Act, 1882, a tenant for life is empowered to sell Settled Land 
 ■ and use the capital money in the execution of certain permanent 
 improvements specified in that Act,^ the guardians or trustees of 
 an infant tenant for life will be allowed to exercise the powers of 
 an adult tenant for life in carrying out the improvements sanctioned 
 by the Act." This now applies to improvements made before the 
 passing of the Settled Land Act, 1882 ;'" and the Court may order 
 -capital money to be applied in or towards payment of any im- 
 provement authorized by the Settled Land Act, 1882.'' Where 
 under the Lands Clauses Act, 1845,'^ the purchase or com- 
 .pensation-money may be devoted to such purposes as redeeming 
 the land-tax, or discharging debts or incumbrances on the property 
 or in the purchase of other lands to be settled to the same uses 
 and trusts,'^ compensation-money under the Act has been expended 
 in erecting new buildings in the case of infants entitled as absolute 
 
 ^ Allan -v. Backhouse, 2 V. & B. 65 ; M-ith v. Cameron, L. R. 12 Eq. 169. 
 
 ^ Oarmstone v. Gaunt, 1 Coll. 557. 
 
 ^ Ee Jackson, Jackson v. Talbot, 21 Ch. D. 786 ; Glover v. Barlow, cited in Be 
 Jackson, Jackson v. Talbot. ■* See Bridge v. Brown, 2 Y. & C. C. C. 181. 
 
 ^ Be Broadwater JSstate, 54 L. J. Ch. 1104. 
 
 ^ Seymour v. Vernon, 16 Jar. 189 ; Warwicker v. Bretnall, 23 Ch. 1). 188. 
 
 '' See Be Leigh's Estate, L. E. 6 Ch. App. 887. " Sect. 25. 
 
 ^ Sects. 3, 21, 25 & 60. 
 
 1° 50 & 51 Vict. c. 30, Settled Land Acts (Amendment) Act, 1887. 
 " 53 & S4 Vict. 0. 69, s. 15. 12 g & g Vict. 0. 18. 13 Sect. 69. 
 
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682 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 When guar- 
 dians not 
 allowed to 
 charge the 
 inheritance. 
 
 Cutting of 
 timber. 
 
 Infant tenant 
 in fee. 
 
 Tenant in 
 tail. 
 
 Tenant for life. 
 Unimpeach- 
 able for waste. 
 
 Equitable 
 waste. 
 
 owners.' But in other cases the guardians or trustees of infants- 
 will not be permitted to charge the inheritance, nor has the Court 
 power to do so.' The state of the law seems to be this— a tenant 
 for life, infant or adult, will not be allowed to charge the in- 
 heritance with expenditure for mere repairs which are not 
 permanent improvements within the Act;' but under certain, 
 statutory provisions, the tenant for life (and if an infant his 
 trustees or guardians) may sell the settled land or any part of it, 
 and devote the proceeds to various purposes, including improve- 
 ments. 
 
 Timber forms an iihportant adjunct to real property, and many 
 important questions have arisen as to the right of cutting it, as 
 to the person entitled to the proceeds when felled or blown down, 
 and as to the nature of the proceeds in the eye of the law. The 
 cutting and taking the proceeds of timber has always depended 
 upon the rule against the conversion of real estate into personal, 
 and to cut down and sell trees is just as much a conversion of 
 one kind of property into another, as to sell the land upon which 
 the trees have grown. To cut too much timber, when the cutting 
 is allowed, is as much "waste" as to cut it at all when not 
 allowed. 
 
 In cutting timber, the guardian or trustee is bound to act for 
 the benefit of the infant ; and when once it is cut for the infant's 
 benefit, it becomes and remains as between his heir and personal 
 representative personal estate, even though he die before he attain 
 twenty-one.'' 
 
 An infant tenant in tail in possession has the same right to cut 
 down timber as an owner in fee ; and it seems that his guardians, 
 have a like right to cut it down on their ward's estate,^ but they 
 must do it properly, and in due course of management." 
 
 A tenant for life, unimpeachable for waste, was at law entitled 
 to deal with his property as though he were a tenant in fee or in 
 tail, but was restrained by the Court of Chancery from committing 
 what was known as " equitable waste," such as cutting ornamental 
 timber, or pulling down the mansion-house, or injuring the inherit- 
 ance in a capricious or extravagant manner.' By the Judicature 
 Act, 1873, a tenant for life unimpeachable for waste has no longer 
 any legal right to commit " equitable waste, ^' unless an intention 
 
 ^ Ex parte Shaw, 4 Y. & C. Excb. 506 ; and see Be Bndyerd, 2 Oiff. 394. 
 
 ^ Floyer v. Banhes, L. K. 8 Eq. 115. ^ Clarke v. Thornton, 35 Ch. D. 307. 
 
 ^ Dyer v. Dyer, 32 Beav. 504. Ornamental timber, however, may not be cut in ■ 
 such a case ; Turner v. Wright, 2 De G. F. & J. 234. 
 
 " Saville's Case, Cas. t. Talb. 16. 
 
 " Hussey v. Ehtssey, 5 Madd. 44 ; see Attorney- General t. Dvlee of Marlhoi-ongh, 
 3 Madd. 498 ; Simp. Inf. 390. 
 
 ' See Qarth v. Cotton, i Yes. Sen. 524, 546. 
 
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CH. VI.] EIGHTS AND DUTIES OF GUARDIAN (propeietary). 68S 
 
 to confer such right shall expressly appear by the instrument 
 creating such estate ; ' but he must exercise his powers in a 
 husbandlike and proper manner. The guardians or trustees of 
 an infant tenant for life unimpeachable for waste have no greater 
 powers than those of an adult tenant for life, and if they exceed 
 them, where they are not authorized by the instrument creating 
 their trust, or do not obtain the sanction of the Court to the 
 exercise of them, they will be liable to account for the proceeds, 
 and be personally and pecuniarily responsible for any damage or 
 loss occasioned by their conduct. A tenant for life, unimpeachable 
 for waste, may cut ornamental timber and take the proceeds of 
 it, where the Court itself would have directed the timber so cut 
 to have been cut for the preservation of the remaining ornamental 
 timber. But the Court may, at the instance of the remainder- 
 man, grant an injunction restraining the tenant for life from 
 cutting any ornamental timber which ought to be cut, and direct 
 that the cutting shall be done under its supervision.^ 
 
 Where the tenant for life is not impeachable for waste, he What tenant 
 may cut timber in the same way as a tenant in tail f and if he cut when not 
 discharge incumbrances on the estate with the proceeds of the f^.^^^gt*''^^ 
 timber he is entitled to charge the inheritance with the amount 
 realized by the sale of the timber ; * and so trustees who are not 
 impeachable for waste may cut timber, though the Court will 
 take care that they exercise their rights for the benefit of the 
 cestui qii.e trust!' Where an infant tenant for life under the 
 Settled Land Act, 1882, is unimpeachable for waste, and the 
 trustees of the settlement are directed to appropriate the proceeds 
 of the sale in a particular way, the directions of the settlement 
 and not of the Act are to be followed." 
 
 A tenant for life, impeachable for waste, cannot injure the Whenim- 
 inheritance by cutting timber,' though he may cut " timber-like " waste. 
 trees (that is, trees nearly approaching but not quite reaching the 
 size at which they can be styled "timber"), in a due course of 
 cultivation, for the purpose of improving the growth, or allowing 
 the development of timber trees; but he "can cub all that is 
 
 ^ 36 & 37 Vict. c. 66, s. 25, sub-s. 3. It Las been seen [ante, p. 677), that the 
 trustees of an infant tenant for life have under the Conveyancing anj Law of Property 
 Act, 1881, wide powers of dealing with the timber on their ward's estate, but their 
 powers are curtailed where the infant is impeachable for waste, and they can do no 
 more than the infant so circumstanced could do if he were an adult (sect. 42, sub-sect. 2). 
 
 2 Baiter y . Sebright. 13 Ch. D. 179. ^ Bowles' Case, II Eep. 796. 
 
 ^ Davies V. Westcomb, 11 Sim. 425. 
 
 ^ JIarquis of Downshire v. Lady Sandys, 6 Vee. 107. 
 
 ^ Ee Duke of Newcastle's Settled Estates, 31 W. R. 782. 
 
 '■ But see the Settled Land Act, 1882 (45 & 46 Vict. c. 38, s. 35), which enables a 
 tenant for life impeachable for waste to cut timber with the consent of the trustees of 
 the settlement, ur by order of the Court, and to set apart three-fourths of the proceeds 
 as capital money under the Act. 
 
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684 
 
 GUAKDIAN AXD WAKD. 
 
 [PAHT HI. 
 
 Mines and 
 minerals. 
 Tenants in fee 
 and in tail. 
 
 Tenants for 
 life. 
 
 Drainage. 
 
 not timber with certain exceptions. He cannot cut ornamental 
 trees, and lie cannot destroy ' germins,' as the old law calls them, 
 or stools of underwood ; and he cannot destroy trees planted for 
 the protection of banks, and various exceptions of that kind ; but, 
 with those exceptions which are waste, he may cut all trees which 
 are not timber, with again an exception, that he must not cut 
 those trees which, being under twenty years of age, are not timber, 
 but which would be timber if they were over twenty years of 
 age. If he cuts them down, he commits waste, as he prevents 
 the growth of the timber."^ Where the timber is the crop 
 itself, and felled at usual intervals, the tenant for life will be 
 absolutely entitled to the proceeds, as being of the nature of 
 rents and profits.^ An equitable tenant for life is not entitled to 
 windfalls.' But where by custom certain trees (such as beeches) 
 are "timber" and by local usage are "seasonable," that is, can 
 be cut at seasonable times for use in the locality, the tenant for 
 life is entitled to cut at such seasonable times a fair and proper 
 quantity which does not amount to waste.^ 
 
 Tenants in fee and in tail in possession have full powers of 
 opening new and working and developing old mines, and gene- 
 rally making the most of their mineral resources ; and the 
 guardians of those so entitled have the like powers, which they 
 must exercise for the benefit of their wards. Tenants for life 
 impeachable for waste may not open and work new mines, but 
 may work and take the produce of open mines,° or only dormant 
 ones.* The powers of the guardians or trustees of infant tenants 
 for life will be regulated and controlled as their wards or ceshds 
 que triistent are or are not made dispunishable for waste.' 
 
 Under 8 & 9 Vict. c. 56, s. 3, the guardian or next friend of 
 an infant may petition the Court of Chancery for leave to make 
 permanent improvements in land in their possession by way of 
 drainage. So under the Settled Land Act, 1882, the guardians 
 of an infant tenant for life may sell a portion of the settled 
 estate, and devote the proceeds to the improvement of the 
 property by way of drainage.* Also under the Agricultural 
 Holdings Act, 1883/ where a landlord or tenant is an infant 
 
 1 Per Jessel, M.R., in Sonyioood v. Eonywood, L. E. 18 Eq 306, 310. 
 
 2 Honytoood v. Honywood \uhi sup.). 
 
 •* Re Harrison's Trusts, Barrison v. Harrison, 28 Ch. D. 220. 
 
 * Dashwood^r. Magniac, [1891] 3 Ch.'ioe. 
 
 s Vinsr v. Vaughan, 2 Beav. 466 ; Miller v. Milkr, L. K. 13 liq. 263. 
 
 ? Under the Conveyancing and Law of Property Act, 1881, the trustees of an 
 infant tenant for life may work mines, minerals, and quarries, hut they must be such as 
 have been usually worked ; and they have no power undeT the Act any more than tbey 
 had under the general law to open and work new mines, &c. 
 
 « See Sect. 25, snh-sects. i and 3. » 46 & 47 Vict. c. 61, ». 25. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUARDIAN (propmetaky). 685 
 
 without a guardian, the Couaty Court Judge (who by the Act is 
 the Judge seised of such questions) may appoint a guardian of 
 the infant for the purposes of the Act, one of which is the 
 drainage of the lands of the infant owner or tenant. 
 
 Under the Inclosure Act, 1801,' guardians may accept allot- luoiosure of 
 ments made in respect of the inclosure on behalf of their wards, ''°™'"°°^' 
 but the latter are not prejudiced by the non-acceptance of the 
 former, provided that they themselves accept their allotments 
 within twelve months of their attaining twenty-one.^ The guar- 
 dians of infants may charge the lands allotted or exchanged to 
 an amount not more than ^5 per acre, and if the guardians are 
 in possession of the lands on behalf of their wards, and advance 
 the amount or share with which they are liable to be charged, 
 the commissioners may mortgage the land in question for the 
 reimbursement of their advance.^ Under the Inclosure Act, 1845,* 
 where a person interested in' the land to be allotted or exchanged 
 is an infant, the commissioners are empowered to nominate and 
 substitute the guardian for the purposes of the Act in the place 
 of the person so interested." 
 
 To carry out the purposes of the Tithe Commutation Act, Tithe 
 1836,^ where the patron of any benefice, or owner of lands Act, 1836, 
 or tithes, is an infant, his guardian (or if he has no guardian, a 
 person nominated by the commissioners for the purpose) is 
 substituted in the place of the infant patron or owner,' Under 
 a later Act the guardian of an infant tithe-owner may consent 
 on his behalf to the redemption of the rent-charge in lieu of 
 tithes of any parish which does not exceed ;iS^i5 in amount, and 
 which has not been apportioned ; but the price to be paid must 
 not be less than twenty-four times the amount of such rent- 
 charge.^ 
 
 Under 42 Geo. III. c. 116, guardians and all persons having Laud Tax. 
 authority to act for infants may contract and agree on their 
 behalf for the redemption of any land-tax made redeemable which 
 such infants could have redeemed if they had not been under an 
 incapacity.' Where guardians of infants are seised or possessed 
 of any manors, messuages, lands, tenements, and hereditaments, 
 in trust, and have authority to act for infants or issue unborn, 
 they may on behalf of such, and under the restrictions and regu- 
 lations contained in the statute mortgage, convey or grant any 
 rent-charge out of any manors, &c., belonging to or limited or 
 settled to the use or for the benefit of any such infants or issue 
 
 1 41 Geo. ni. c. 109. 2 Sect. 18. ^ gect. 30. 
 
 ^ 8 & 9 "Viot. 0. 118. ' Sect. 20. « 6 & 7 Wni. IV. 0. 71. 
 
 " Sect. 15. " 9 & 10 Vict. c. 73, sect, i. " Sect, 14. 
 
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680 GUARDIAN AND WARD. [part hi., 
 
 unborn, whicli the latter miglit have sold, mortgaged, or charged 
 with any rent-charge for the purpose of redeeming any land-tax 
 in respect of their estate or interest therein, if they had not been 
 under incapacity.' Guardians who have contracted or shall 
 contract on behalf of their infant wards for the redemption of 
 land-tax charged on manors, &c., may transfer to the Commis- 
 sioners for the Reduction of the National Debt so much of ;^3 
 per cent, consolidated or reduced annuities which shall be standing 
 in the name or names of such infants, &c., as shall be sufficient 
 for the redemption of the land-tax contracted for.^ Where any 
 person who has contracted for the redemption or purchase of any 
 land-tax dies without completing his contract, his assets shall 
 be liable to make good the contract ; and if the person entitled 
 to his estate is an infant, the executor, guardian, or trustee shall 
 be indemnified against the infant for making good the instalments 
 necessary to make good the contract.' 
 Lands ClaDses Where land belonging to infants is required for works and 
 Act,^i845^ '°° undertakings of a public nature (whether to be acquired by the 
 promoters voluntarily or compulsorily), the guardians or trustees 
 of the infants may, under the Lands Clauses Consolidation Act 
 1845", sell and convey,* or enfranchise copyholds, and release 
 the lands from any rent-charge or incumbrance." The notice to 
 treat must be given to the guardian of the infant, and not to his 
 next friend, in cases where the promoters of the undertaking 
 desire to take land compulsorily." If the purchase money or 
 compensation for lands conveyed by a guardian who could not 
 have conveyed it except for the Act amounts to or exceeds ;^200, 
 it is to be paid into Court and remain deposited there for the 
 various purposes enumerated in the Act.' If it exceed ;^20 
 but does not reach ;£'200, it may be either paid into the Bank of 
 Eugland or paid to two trustees nominated by the guardians of 
 the infant (in case of infancy), if approved of by the promoters 
 of the undertaking.' If the sum is less than ;£'20, then it is to 
 be paid to the guardian or trustees of the infant." 
 Powers of Guardians may sell, give, or convey the lands of their wards 
 
 guardians to o . , following purposes : For the sites of churches, or if the 
 
 convey ward s ^^'- """ o r r » i • j. . i_ 1. 11 f„i. 
 
 lands for van- Jands are copyholds, may enfranchise tor that purpose; lor 
 ous special ^^^^^^ ^.^^^^ ^^^ ^^^ amount conveyed must not exceed one acre ;''' 
 for churchyard and burial places ; " for the erection of a house for 
 
 1 Sect. 53. " Sect. 128. ' Sect. 166. ' 8 Vict. c. 18. 
 
 ' Sect 7 " Sect. 8. t m £ 
 
 " Earl of Harrington v. Metropolitan Railway Co., 13 L. T. 658. 
 « Sect. 4- ' Sect- 71- " Sect. 72. 
 
 I ft,%1^l-l'zi\ anf see 12 & .3 Vict. c. 49 ; U & "5 Vict. c. 24, and 15 & 
 : vtt .- .10 18 M & 31 Vict. c. 133 ; and 31 & 32 Vict. c. 47. 
 
 purposes. 
 
 16 Vict. o.49^ " 30 & 31 Vict. c. 133 J 
 
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cH.vi.] RIGHTS AND DUTIES OF GUARDIAN (pkopiuetary). 687 
 
 charitable purposes ; ' for any institution for the promotion of 
 literature, science, fine art, &c. ; ^ but the site must not exceed 
 one acre in extent.^ For further powers of guardians in this 
 matter, Mr. Simpson's book on the Law of Infants may be con- 
 sulted/ 
 
 Under the Copyhold Act, 1894,* the guardians of an infant Copyhold Act, 
 lord of a manor or copyhold tenant have full power to do what ^ ^■*' 
 is required by the Act to be done by such infant lord or 
 tenant." 
 
 Guardians must not convert the personal estate of their wards Bighta and 
 
 , ,. , , , 1 • 1, • duties of guar- 
 
 into realty (just as they must not convert their realty into per- dians in 
 sonalty), unless there is an express trust for conversion. The pergonai°6stete 
 Court itself has not this power except through the authority of of ""'^.rd. 
 the person directing the conversion. If the ward's personal pro- Euie against 
 perty is converted into realty, the latter will be treated as per- 
 sonalty until he attains twenty-one. 
 
 Conversion will be allowed under certain circumstances, such When conver- 
 
 , ., j_ • jy j_- j_ i! • J. sion allowed. 
 
 as where the property is 01 a wasting nature, as, for instance, 
 leaseholds. In such a case the Court implies the intention that 
 such property should be converted into one of a more permanent 
 character, and so become capable of succession. It will, accord- 
 ingly, in such an instance, direct a sale and conversion into 
 government stock. Trustees acting out of court are bound 
 to observe the same rule in their administration of property 
 out of court, and if they fail to do so, will be liable as for a 
 breach of trust.' But if in the instrument creating the trust 
 there is an intention that conversion should not take place in 
 such cases eifect will be given to the intention.^ 
 
 Guardians and trustees must use equal care in the manage- Duties of guar- 
 ment of their ward's and cestui que trusis personal estate as in personal estate 
 the management of his real estate. Their fiduciary position com- "* '^^'" wards. 
 pels them on the one hand to be most careful of it, and on the 
 other not to make any personal profit out of it. "A trustee 
 who takes another man's money into his hands is bound, what- 
 ever other duties he may have to discharge, to take care that the 
 money shall be preserved, and not to deal with it or to do any 
 thing with it which a prudent and reasonable man would not do 
 with his own money."' Thus, they must collect and call in all 
 outstanding debts due to their ward, and generally realize his 
 estate ; and, if necessary, bring actions to enforce his claims and 
 rights. If the trust fund be a chose in action, as a debt which 
 
 1 16 & 17 Vict. u. 137, 8. 27. "- 17 & 18 Vict. c. 112, e. 33. ^ Sect. i. 
 
 ■* P. 402. '^ 57 & 58 Vict. 0. 46,-3. 45. •* Sect. 39. 
 
 ' Lewin, 318. 8 Ihid. 
 
 ^ Per Bacon, V.-C, in Speight v. Gaunt, 22 Ch. I). 727, 736. 
 
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688 
 
 GUARDIAN AND WARD. 
 
 [PAET III. 
 
 Property 
 should be in- 
 vested in 
 authorized 
 securities. 
 
 may be reduced into possession, it is the trustee's duty to be 
 active in getting it in; and any unnecessary delay in this 
 respect will be at his own personal risk.' The guardian may 
 compound or release a debt, and the infant ward is bound if the 
 act appears to have been for the benefit of the trust estate.^ He 
 must not allow the trust funds to remain outstanding upon 
 personal security, even though the borrower may be solvent at 
 the time.' But where the fund is invested on good mortgage 
 security, the trustee or guardian need not call it in ; " but he 
 must ascertain that there is no reason to suspect the goodness of 
 the security.* 
 
 Parents, guardians, trustees, executors, receivers, and all 
 persons whatever who hold, with or without authority, any pro- 
 perty belonging to infants, though their powers over the estate 
 may be various, are yet equally bound to secure, to manage, and 
 to account for such parts of it as come within their reach ; and 
 are subject to all the rules by which trustees are required to be 
 guided, and to some others having peculiar reference to the 
 infancy of those for whom they act." It is not only their duty 
 to call in and realize the personal estate of the ward, but to 
 render it productive ; they should therefore invest it in those 
 securities which are authorized by the instrument creating their 
 trust, or in default of such authorization in those which are 
 sanctioned by the Court of Chancery. If the money be not 
 properly invested and lost, the trustee will be liable ; ' if he 
 employ the fund for any purposes of his own, any profit made 
 thereby will belong to the cestui que trust, while the loss will fall 
 upon himself.' Where the ward's money has been improperly 
 embarked, the ward has an option either to take the profits, or 
 to charge the trustee with five per cent, interest.' Trustees are 
 either authorized to invest their ward's funds in certain specified 
 securities, or not authorized to invest them in any particular 
 security, or they are allowed a wide range of choice. Where 
 their discretion is uncontrolled they will be held harmless, if 
 they have acted bond fide?" If they are tied down to certain 
 investments, they must not travel beyond the limit of their 
 authority, or they will be rendered liable for a breach of trust ; 
 but if losses are incurred in carrying out their directions, they 
 are not personally responsible for them. If they are not so 
 
 1 Oaffrev v. D<wly, 6 Ves. 488. See Cann v. Cann, 51 L. T. 770. 
 
 •^ Blue V. MarsUn, 3 P. Wms. 381. " Terry m. Terry, Gilb. Eq. 16. 
 
 ■• Orr V. Newton, 2 Cox, Eq. Cas. 274. 
 ° See Ames v. Parkinson, 7 Beav. 384. 
 ' Fletcher r. Walker, 3 Madd. 73. 
 'J Westover v. Chapman, i Coll. 177. 
 " lie Brown, Brown v. Brown, 29 Ch. D. 889, 
 
 6 Macph. Inf. 265. 
 
 » Docker v. Somes, 2 Myl. & K. 655. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUAEDIAN (pkopeietary). 689 
 
 authorized, then they should invest in those securities which are 
 now sanctioned by Parliament, which from their nature are 
 subject to less variation than other stocks, and consequently to 
 less depreciation in value.^ Where they have a wide range of 
 choice, they mast exercise their discretion in a fair and honest 
 manner ; and they will be held liable for a reckless investment 
 which a prudent man would have avoided.^ 
 
 Where a testator dies leaving his capital or part of it embarked Duty of trus 
 in trade, the trustees, unless distinctly authorized to carry on the ward's pro- 
 trade, are bound to call in the money ; ' at any rate, unless they emb^ked in 
 are expressly so authorized, they should not carry on the trade t^eitde. 
 without the sanction of the Court.'' If the fund so embarked in 
 trade is difiScult to call in, the Court will in proper cases allow 
 the business to be carried on, but only on terms beneficial to the 
 infant ward ; ° but except on a creditor's suit, or the testator's 
 will sanctions it, the Court has no jurisdiction to authorize the 
 continuance of the business. ° If the trustees, however, have 
 acted honAficU, they will not be held responsible for not imme- 
 diately converting the money.' 
 
 So far is it the duty of a trustee to make his ward's estate Ward's estate 
 productive, that if it is properly invested, and he improperly pro^m.^;™* ^ 
 withdraw it, he will be charged with interest on the amount.' 
 While the money is awaiting immediate investment, the guar- 
 dian should deposit it temporarily in a bank, but in such a 
 manner that the cestui que trust may follow the fund into the 
 hands of the bankers ; ^ and it is no objection that the bank 
 allows interest on the deposits." But if the trustee pay the 
 money to his own credit, and not to the separate account of the 
 trust estate," or if he allow the drafts of another person to be 
 honoured who draws upon the account and misapplies the money, 
 the trustee will be personally liable for the consequences ; '" and 
 the trustee must not lodge, the money in such a manner as to 
 put it out of his own control, though it be not under the control 
 of another." But as the obligation of a guardian is to conduct 
 the business of the trust in the same way as an ordinary prudent 
 
 ^ See Trustee Act, 1893 (56 & 57 Vict. c. 53). 
 ^ See Me Sroum, Brown v. Brown {ubi sup,). 
 ^ Kirkman V. Booth, 11 Beav. 273. 
 
 * Drake v. Fortune, 1 Moll. 201 ; Martindale \. Martindale, 1 Jur. N. S. 932 ; 
 Perry v. Perry, 17 W. E. 815. ' Perry r. Perry {ubi sup.). 
 
 * Land-v. Land, 43 L. J. CI). 311. ' Garrett v. Noble, 6 Sim, 504. 
 ^ Mosley v. Ward, 11 Ves. 581. 
 
 ' Ex parte Kingston, Re Oross, L. E. 6 Ch. App. 632. 
 " Be Maroon's Estate, W. N. 1871, 148. 
 
 ^' Wren t. Kirton, 11 Vee. 377 ; Matthews v. Brise, 6 Beav. 239. 
 ^2 Evans v. Bear, L. E. 10 Ch. App. 76. 
 
 13 Lewin, 316. Salioay v. Salway, 2 E. & M. 215 ; S. C, 'White v. Baugh, 3 CI. & 
 Fin. 44. • 
 
 2 X 
 
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fi''<J GUARDIAN AND WARD. [pabt hi. 
 
 man of business and no further, if he has money of his ward's to 
 invest, he may employ brokers and agents in cases in which they 
 are employed in the ordinary course of business; and if the 
 latter embezzle the trust funds made over to them in the ordinary 
 course of business, the guardian will not be held responsible for 
 the loss thereby occasioned. To render him liable negligence 
 will have to be proved.^ The agent must not be employed out of 
 the ordinary scope of his employment.^ To allow a solicitor to 
 hold the securities on which the trust funds are invested may 
 amount to such negligence.' 
 
 Infants as well as adults are, it seems, bound by the composi- 
 tion or release of a debt by a guardian, executor, or trustee, if 
 the act appears to have been for the benefit of the trust 
 estate.'' 
 of'^ardfa'n'^^ It is the duty of a trustee or guardian to secure and at the' 
 same time render productive the funds committed to his charge. 
 In the first place, where there are directions to invest, he must 
 strictly conform to them. He must not lend his ward's money 
 on personal security," unless he is expressly authorized to do so."^ 
 He may invest on real securities in England, Ireland, and Wales, 
 unless expressly forbidden to do so.' If he is negligent, and 
 delays investing the trust funds in his hands, he will be held 
 When ti"stee responsible, and be made to pay interest on them. The princi- 
 interest. ples upon which those in a fiduciary position are chargeable with 
 
 interest in respect of their trust funds have been thus laid down :* 
 If an executor has retained balances in his hands which he 
 ought to have invested, the Court will charge him with simple 
 interest at four per cent, on these balances ; if, in addition to 
 such retention, he has committed a direct breach of trust, or if 
 the fund has been taken by him from a proper state of invest- 
 ment in which it was producing five per cent., he will be charged 
 with interest after the rate of five per cent, per annum ; if, in 
 addition to this, he has employed the money so obtained by him 
 in trade or speculation for his own benefit and advantage, he will 
 be charged either with the profits actually so obtained by him 
 from the use of the money, or with interest at five per cent, per 
 annum, and also with yearly rests, that is, with compound 
 interest.' It seems only right and proper that in the last 
 
 ' Speight v. Oaunt, 9 App. Cas. ; see ante, p. 687. 
 
 2 Fry V. Topsm, 28 Ch. D. 268. 
 
 3 Be Dewar, Dewar v. Broolce, 54 L. J. Ch. 830. * Macpli. Inf. 272. 
 ^ Walker v. Symonds, 3 Swanst. i, 80. 
 
 •5 See Padclon v. Richardson, 26 L. T. 0. S. 33. 
 
 " 22 & 23 Vict. c. 35, s. 32 ; 44 & 45 Vict. 0. 41, s. 42. 
 
 8 Per Sir John Eomilly in Jones v. Foxall, 15 Beav. 388, 392. 
 
 ' See Raphael v. BoUhm., II Ves. 92 ; Knott v, Cottee, 16 Beav. 77. 
 
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CH.vi.] RIGHTS AND DUTIES OF GUARDIAN (proprietary). 691 
 
 instance givenj the guardian should be charged with compound 
 interest, for his act is a gross form of breach of trust. 
 
 In cases where it is apprehended that the fund is in peril When trust 
 from the misconduct of trustees, or likely to be lost, the fund will to be paid into 
 be ordered to be paid into Court ; and not only can this course ''°'^'''- 
 be ordered under such circumstances, but also under a less 
 serious state of affairs the cestui qiie trust has the right to have it 
 paid into Court. Where he proves his title to or interest in the 
 fund (it is otherwise if he do not prove his title or interest)/ the 
 Court may call upon the person who admits directly or indirectly 
 that he holds a fiduciary position in regard to the fund, to pay 
 it into Court ; ^ and if the trustee does not dispute the allegation 
 of the cestui que trust, even though he does not appear, it is a 
 sufficient admission upon which the Court can act.' 
 
 If a legacy is directed to be paid to the trustee or guardian of Payment of 
 an infant ward, the executor may safely pay it to the guardian or ^ard. 
 trustee, whose receipt will discharge the executor ; ■■ and the Guardian's 
 legacy the guardian should advantageously invest. It is different '^^''^'P ■ 
 where the legacy is directed to be paid to the ward himself, or 
 there is no direction to pay it to his trustee or guardian; the 
 infant ward cannot give a valid receipt, therefore the executor 
 cannot safely pay it over to him, nor is there any one else to 
 whom it can be paid. A legacy bequeathed to an infant domiciled 
 abroad may be paid when he comes of age by the law of 
 England or of his domicil, whichever is the earlier date." 
 Though a testamentary guardian has, under 1 2 Oar. II. c. 2 4, Payment of 
 the " custody, tuition, and management of the infant's goods, toTestamen- 
 chattels, and personal estate," this right has been considered by **''y S"*rdian, 
 some text-writers as not authorizing a trustee or executor to pay 
 to the guardian a capital sum to which the infant is entitled." 
 But Lord Chancellor Brady, in an Irish case,' held that the 
 analogous Irish statute abolishing the Court of Wards and 
 Liveries ' enabled the testamentary guardian to give a good 
 receipt, and that a payment, during the minority of the ward, of 
 a part of the corpus of the personal estate of the testator by the 
 executor to the guardian was a valid payment. But it has been 
 recently decided that he is not entitled to obtain payment out of 
 Court of funds, the property of his infant ward, which have been 
 paid into Court under the Legacy Duty Act.' This decision was 
 
 ^ Eagell v. Currie, L. K. 2 Ch. App. 449. 
 
 2 London Syndicate v. Lord, 8 Ch. D. 84 ; Freeman v. Cox, 8 Oh. D. 148. 
 
 ■• Freeman v. Oox (uhi svp.). 
 
 * 1 Eop. Leg. 771 ; Robinson v. Tickell, 8 Ves. 142. 
 
 5 Be HellTnan's Will, L. E. 2 Eq. 363. ^ Maoph. Inf. 273, 274 ; Lewin, 394. 
 
 ' 31'Creight v. M'Oreight, 13 Ir. Eq. Eep. 314. ^ ,4 & 15 Car, II. c. 19. 
 
 9 Be Cresswell, 45 L. T. 468. 
 
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692 GUARDIAN AND WAED. [pakt hi. 
 
 based upon the grotmd that the testamentary guardian was not a 
 person entitled to the funds paid into Court within the meaning 
 of the thirty-second section of the Legacy Duty Act, and was not 
 in any way intended to impugn the accuracy of the Irish decision. 
 Thus, it may be said that if the Irish case is rightly decided, 
 under ordinary circumstances a testamentary guardian is entitled 
 to give a receipt for funds coming to his infant ward, but not to 
 have funds paid out to him which have been paid into Court 
 under the Legacy Duty Act. If the executor pay the legacy to 
 an unauthorized person, he will, on the infant becoming of age, be 
 liable to make good the amount -of the legacy.' 
 
 Acf *i^q?"*^ To meet the difficulty in the way of executors, the Legacy Duty 
 Act, 1796,^ provided that where an infant was entitled to a 
 
 Duties of legacy, or the residue of any personal estate, the executor or 
 administrator may pay the legacy into Court.^ If the executor 
 or administrator keep the money in his own hands, he will be 
 
 Appropriation decreed to make it good, with interest at four per cent.* Where 
 
 by executor. . . 
 
 the executor appropriates a specific fund to answer the legacy, 
 which afterwards turns out insufficient, or is lost, he must make 
 it good.* If he purports to specifically appropriate a sum to 
 meet the legacy, which turns out insufficient or is lost, as between 
 the infant and the residuary legatees, the former will not be made 
 to bear the loss, because it is impossible for him to have assented 
 to the appropriation." On reaching majority the infant ward 
 who is entitled absolutely to a fund on attaining twenty-one, will 
 have the fund paid out to him.' If a legacy is given to an 
 infant charged on real estate payable at twenty-one, whether the 
 trustee would be safe in accepting payment of the legacy before 
 the infant attains twenty-one, is a question of construction of the 
 instrument of donation ; if the apparent intention of the charge 
 is that the estate shall remain a continuing security for it, the 
 trustee cannot safely receive payment of the legacy and invest it 
 in Consols, for they may decline in value.^ But where a legacy is 
 given to an infant, payable in futuro, the Court, or the executor 
 of his own authority, may lay out in the purchase of Government 
 stock a sum equal to the legacy, and this appropriation binds 
 all parties, and the legatee must abide by the rise or fall in 
 Appropriation the Value of the funds.' Where the appropriation is under 
 kfndskgatee. the direction of the Court, it binds the legatee, who must on 
 
 i DagUy v. Tolferry, 2 P. Wms. 285. '' 36 Geo. III. c. 52, s. 32. 
 
 ' Sect. 32. If the sum paid or transferred into Court does not exceed ;^30o cash or 
 £yx> stock, the transfer and payment out may be applied for by ex parte summons at 
 chambers. 'Cons. Ord. xxxv. I (2I * RimmeU v. Simpson, 18 L. J. Ch. 55. 
 
 6 Byrchell v. Bradford, 6 Madd. 13. « Baker v. Farmer, L. E. 3 Ch. App. 537. 
 
 7 Isaac V. Gompertz, i Ves. 44. » Simp. Inf. 413, and the cases there cited. 
 9 Maoph. Inf. 275 ; Green y. Pigot, i Bro. C. C. 103. 
 
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CH. VI.] RIGHTS AND DUTIES OF GUARDIAN (pkoprietaey). 693 
 
 the one hand bear all losses that flow from it, and on the 
 other is entitled. to all profits derived from it.' But such appro- 
 priation must be reasonably sufficient for the purpose at the time 
 it is made. 
 
 Receivers. 
 
 As a matter cognate to the subject of this chapter, it has been Eeoeivers. 
 thought advisable to append a short account of that species of 
 gwasi-trustee or guardian known as receivers. They are now less 
 frequently than formerly appointed to the care and management 
 of infants' estates. 
 
 A receiver is appointed by the Court of Chancery for the 
 purpose of protecting the property of those whose interests in it_ 
 are the subject-matter of a suit, and his possession is that of the 
 Court itself,^ or of the persons found entitled in the suit.' A 
 receiver is an indifferent person between the parties appointed by 
 the Court to receive the rents and profits of real estate, or to get 
 in and collect personal estate, or other things in question 
 pending the suit, where it does not seem reasonable to the Court 
 that either party should do so, or where a party is incompetent 
 to do so, as in the case of an infant.'' As regards the estate Receiver ap- 
 of an infant, the Court will appoint a receiver without suit on oursuit in'the 
 petition or summons.^ A receiver may be appointed by an p^^e of an 
 interlocutory order of the Court in all cases in which it shall 
 appear to the Court to be just or convenient that such order 
 should be made, and any such order may be made either uncondi- 
 tionally or upon such terms and conditions as the Court shall 
 think just.' 
 
 The principle upon which a receiver is appointed is for the When receiver 
 preservation of property until the question between the parties an^infant's 
 claiming it shall have been decided, but without prejudice to the estate. 
 right of possession of a party claiming by an interest paramount 
 to the litigants.' In the case of infants the Court considers 
 chiefly what will be most beneficial to their interests. In the 
 following cases a receiver has been appointed : * A receiver has 
 been appointed where there is no guardian,^ or the guardian is 
 abroad ; " where the trustees neglect to get in the personalty, 
 so that the infant is deprived of maintenance ; " where the 
 
 1 Green v. Pigot (uhi sup.) ; Burgess v. Bohinson, 3 Mer. 7 ; Eock v. Mardman, 
 4 Madd. 253. ^ Angel v. Smith, 9 Vea. 335. 
 
 3 Sharp V. Carter, 3 P. Wmfl. 379 ; Portman v. Mill, 8 L. J. Ch. 161. 
 
 * Dan. Ch. Pr. 1664. 
 
 ^ Be Leeming, Be Gascoigne, 20 L. J. Ch. 550. This is an exception to the usual 
 rule. ' 36 & 37 Vict. 0. 66, s. 25, sub-s. 8. 
 
 ' Bemey v. SeweU, i J. & W. 64S. ^ Simp. Inf. 436. 
 
 ' Hicks V. Hicks, 3 Atk. 274. ^^ Westhy v, Westby, 2 C. P. Coop. 210. 
 
 ^1 Bichards v. Perkins, 3 Y. & C. Exch. 299. 
 
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Receiver can 
 be appointed 
 when there is 
 a testamentary 
 guardian : 
 
 G uardian 
 
 socage. 
 
 SecnritT. 
 
 Beceirer's 
 duties and 
 liabilities. 
 
 Duties. 
 
 Beal estate. 
 
 Personal 
 estate. 
 
 694 GUARDIAN AND WARD. [p^et „i. 
 
 trustee is guilty of misconduct, or becomes bankrupt or in 
 solvent ;> so, if he refuses to act;^ where the father insists 
 on taking the profits of real estate and not applying them for the 
 infant's benefit ;= where the tenant for life mismanages the 
 estate, as by cutting timber improperly,* or refusing to renew 
 leases.^ The existence of a testamentary guardian is no objec- 
 tion to the Court appointing a receirer, as the precise extent of 
 such a guardian's powers over the property of the infant is by 
 no means certain, and he is frequently unable to act without 
 the assistance of the Court.^ The same reasoning applies to 
 a socage guardian, whose powers are the same as those 
 of a testamentary one; unless, therefore, there are properly 
 constituted trustees to manage an infant's real estates, the 
 Court generally appoints either a receiver or a guardian of the 
 estate who is in the nature of a receiver. Under special 
 circumstances the trastee was appointed receiver with a salary ; 
 he had been receiver for many years, and the testator appointed 
 him trustee ; the estates being large, the Court continued him as 
 receiver.' 
 
 As a rule, a receiver when appointed must give security for 
 the proper performance of his duties,^ which is usually double 
 the amount of the annual income^ or value of the property 
 likely to be got in by him during the currency of his periodical 
 account." 
 
 Where a receiver has been appointed to real estate, the tenants 
 (if any) are ordered to attorn to him, and to pay him their rents 
 in arrear, as well as the growing rents." After a tenant has 
 attorned, the receiver may distrain in his own name for rent 
 accrued during such tenancy ; ^^ he may distrain at his own 
 discretion for rent in arrear within the year, but if in arrear for 
 more than a year, then an order of the Court is necessary." 
 For his further powers of letting and demising, see Daniel's 
 Chancery Practice." The receiver may expend small sums on 
 such matters as ordinary repairs without leave/* but if a large 
 outlay is required, recourse must be had to the Court for leave," 
 and he should not defend an action without such leave." 
 
 It is the duty of a receiver appointed to get in outstanding 
 
 1 Dan. Cb. Pr. 1670 ; JVaterlow v. Sharp, W. N. 1867, 64. 
 
 2 Palmer t. Wright, 10 Beav. 234. ^ JKiffin t. Kiffin, cited i P. Wins. 705. 
 * Aburrow v. Aburrow, 10 Sim. 602. ^ Bennet v. Volley, 5 Sim. i8i, 192.' 
 
 6 Gardner v. Blane, I Ha. 381. '' Bury v. Newport, 23 Beav. 30. 
 
 8 R. S. C. 1883, Ord. 1.. I. 16. ^ Set. Dec. 654. 
 
 '» Dan. Ch. Pr. 1687. ^ , ^,^ ^ ^ 
 
 " Codrington v. Johnstone, 1 Beav. 520, 524 ; EAson v. bherwood, 19 iieav. 575. 
 '2 Woodf. L. & T. 458. " Brandon v. Brandon, 5 Madd. 473. 
 
 " Pp. 1699 (et seq^. " Thornhill v. TlwmhiU, 14 Sim. 600. 
 
 1" Dan. Ci). yr. 1700. " Bristowey. Needham, 2 Ph. 190. 
 
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CH.vi.] RIGHTS AND DUTIES OP GUAEDIAN (proprietary). 695 
 
 personal estate, to get in all that he can reach, and the Court will 
 assist him in enforcing his claims.' A receiver should not 
 attempt to bring an action to recover a debt without the consent 
 of the Court.^ When_ he has got it in, it is his duty to pay it 
 into Court at the appointed times ; he must not pay anything out 
 without the order of the Court ; for he ' ' has no right (x mero motti,^ 
 to apply the money in his hands in payment of debts due either 
 to himself or to other persons ; he has no right to apply such 
 moneys otherwise than as the Court or tribunal appointing him 
 may direct " ; ' but where he is ordered to keep down incum- 
 brances, or make any other payments, he must comply with such 
 order, and the sums so paid by him will be allowed in his 
 accounts.^ 
 
 He will be liable for any loss which may be occasioned to the Eeceiver's 
 estate by his wilful default, as by placing money in improper ^^^^'i'*'®"- 
 hands,^ or by so placing the fund as to deprive himself of 
 absolute control over it ; ° but where he has honA flcU deposited 
 the fund at his bankers to a separate account, under circumstances 
 in which it could not properly have been paid into Court, he will 
 not be liable for the failure of the bankers.' 
 
 A receiver cannot be discharged from his office without showing Discharge of 
 some reasonable cause for the change,' and being appointed for '<'°®'^^'- 
 the benefit of all parties, he will not be discharged on the ex parte 
 application of the party at whose instance he was appointed ;" 
 nor where he has been appointed on behalf of infant tenants in 
 common, will he be discharged as to the share of one of them 
 who has attained twenty-one.'" A receiver may be discharged 
 from his office on an application made by petition, motion, or 
 summons," and his recognizances will be vacated on proper 
 affidavit of payment to the party entitled to receive the balance, 
 or on the Chancery paymaster's, or chief clerk's certificate ; '■ 
 but in the case of a receiver appointed to an infant's estate, his 
 recognizances will not be vacated till a year after the infant has 
 attained his majority." Since a receiver is in a fiduciary posi- 
 tion towards those for whose money and property he has to 
 account, he cannot, in respect of such money or property which 
 he has not accounted for, and which is due from him, avail him- 
 
 1 Dan. Uh. Pr. 1701. 
 
 ^ See Re Hophiris, Dowd v. Hawtin, 19 Ch. D. 61. 
 
 2 Per Kindersley, V.-C, in Coope v. Oresswell,'L. R. 5 Eq. fo6, 115. 
 
 " Dan. Ch. Pr. 1701. " Knight v. Lord Plimouth, 3 Atk. 480. 
 
 ^ Salway v. Salway, 2 E. & M. 214; S. C. White v. Baugh, 3 CI. & Fin. 44; 
 Wren v. Kirton, 11 Ves. 377. ' Salway v. Salway (uhi sujp.). 
 
 8 See Bicha/rdson v. Ward, 6 Madd. 266. ^ Faulliner v. Daniel, 3 Ha. 204. 
 
 1° Smith V. Lyster, 4 Beav. 227. 
 
 " Dan. Ch. Pr. 1716. 12 g^t. Deo. 679. 
 
 12 See 2 Madd. Ch. Pr. 298, and Kilbee v. Sneyd, 2 Moll. 233. 
 
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696 GUARDIAN AND WARD. [part iii 
 
 self of the Statute of Limitations, though his final account has 
 
 been passed, and his recognizances vacated.' 
 PassiDg A receiver must pass his accounts at the proper times fixed 
 
 for him to do so ; and if he neglect this duty, he will have his 
 salary disallowed,^ and be charged with compound interest;* 
 so, too, he will be charged with interest on money improperly 
 retained by him, even though his accounts have been passed as 
 satisfactory.* 
 
 ' Seagram v. Tuck, i8 Ch. D. 296. ^ Potts v. Ldghton, 15 Ves. 273. 
 
 ' Hicks V. Hicks, 3 Atk. 274 ; Ports v. Leighton (uU sup.). 
 * Fletcher v. Dodd, i Vbf. 85. 
 
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CHAPTEK VII. 
 
 EIGHTS OF THE WARD ON THE TERMINATION OF 
 THE GUARDIANSHIP. 
 
 PAGE 
 
 Duty of Guardian to Account 697 
 
 GuAEDiAN Entitled to Discharge and Release . . 698 
 (juabdian allowed a Sum for Maintenance not usually 
 
 Called to Account 698 
 
 Protection op Ward after he has Attained Twenty- 
 one . 699 
 
 Accounts Settled between Guardian and Ward opened 699 
 Office of Guardian Honorary and Gratuitous . . 700 
 Election op Ward to be Bound by Acts of Guardian . 701 
 Acquiescence op Ward after Attaining Majority. . 703 
 What Acquiescence is : Direct ; Indirect .... 704 
 Gifts between Guardian and Ward ; When under In- 
 fluence Presumed 705 
 
 When not Presumed 706 
 
 Gifts and Transactions after Ward has Attained 
 
 Majority : When Set Aside 706 
 
 Ward when op Ag:b may Recompense Guardian . 707 
 
 When Undue Influence Presumed .... 709 
 
 Continuing Influence 710 
 
 A GUARDIAN who is appointed by the Court to the estate of an Duty of 
 infant (whether appointed also to his person or not) ordinarily aocmint" ° 
 gives security to account for the rents and profits of the ward's Guardian 
 estate received by him, and the Court can fix the amount of the the Court. ^ 
 security and the times at which he is to render his accounts, and 
 in this respect the guardian of the estate is in the position of a 
 receiver ; ' and he passes his account in the same manner as a 
 receiver.^ When the ward of Court comes of age he will be put 
 in possession of his property on bringing the fact of his attaining 
 his majority properly before the Court. 
 
 But where there is a guardian or trustee of the estate of an Guardian not 
 infant who has not been appointed by the Court, the ward ought the Court. ^ 
 to be put by his guardian into possession of his property on 
 
 ' Dan. Ch. Pr. 1120, 1703. '' Sue ante, p. 696. 
 
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698 
 
 GUARDIAN AND WARD. 
 
 [PAET III. 
 
 Guardian 
 sntitled to 
 discharge and 
 release. 
 
 Guardian 
 allowed a sum 
 for mainte- 
 nance not 
 usually called 
 to account. 
 
 Stranger may 
 inform Co art 
 of suspected 
 mismanage- 
 ment. 
 
 attaining his majority, and to have an account of its management 
 rendered to him. On the other hand, the guardian is entitled to 
 be discharged and released of his duties on the termination of his 
 office.' The Court will look with considerable suspicion upon a 
 release that has been granted within a few days of the ward's 
 coming of age,^ and will set it aside unless the ward can be 
 shown to have fully understood the accounts.' For such release, 
 to be binding, must be made by the ward with full information 
 as to what his rights are," and without any undue pressure." 
 Where the accounts have been settled a reasonable time after the 
 ward has attained his majority, the Court would require special 
 circumstances to be shown before it would set them aside.* 
 Even before the ward attains twenty-one, and mismanagement is 
 suspected, he is entitled to call his guardian to account. Till he 
 attained his majority, or as long as the guardianship continued, 
 he was at common law unable to bring his action of account 
 (which action has now fallen into disuse), but in equity he was 
 able to do so by suing through his next friend ; ' and the guardian, 
 on the other hand, was restrained from suing his ward before he 
 had passed his accounts.^ By the Judicature Act, 1873,' all 
 causes and matters for taking accounts are now assigned to the 
 Chancery Division. 
 
 The principle upon which the Court acts is, that the guardian 
 of the estate is a trustee who must faithfully perform the trust 
 reposed in him towards his infant cestui que trust, and is therefore 
 bound to render an exact account of the discharging of his office. 
 But to this rule there is a species of exception ; thus, where an 
 allowance has been ordered by the Court for the maintenance of 
 an infant, the guardian is so far confided in, that he is not bound 
 to account specifically for that allowance. But if a fraud is 
 practised on the Court, as if a guardian, getting ;£'ioo a year, 
 maintains the infant at the rate of only ;£^20, the Court will check 
 any such abuse by making an order on the guardian to account 
 for the application of the maintenance money.'" 
 
 In cases where mismanagement of the property is suspected, 
 a stranger may bring the fact to the notice of the Court, which 
 
 ■' It is usual to give this release to the guardian, but it is a matter of some doubt 
 whether in strict law he is entitled to his formal release. Lewin, 398. 
 
 ^ Steadman v. Palling, 3 Atk. 423. 
 
 ^ Wedderburn v. Wedderhurri, 4 Myl. & Cr. 41. 
 
 ^ Walker v. St/mond.i, 3 Swanst. I. ^ Lloyd y. AttiDood, 3 De G. & J. 614. 
 
 ^ Lambert v. Hutchinson, i Beav. 277. 
 
 " Gage v. Bulkeley, Ridg. temp. Hardw. 279; Cory v. Sertie, 2 P. Wms. 119. 
 See post, Part IV. Infancy, chap. vii. ^ Anon. 3 Atk. 618. 
 
 * 36 & 37 Vict. c. 66, 6. 34, sub-s. 3. 
 
 i» Maoph. Inf. 348; Be Oldjidd, 2 Moll. 291. 
 
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CHAP, vn.] RIGHTS OF WARD WHEN OF FULL AGE. 699 
 
 may order an examination of the accounts ; ' and the accounting 
 party cannot obtain an acquittance and discharge by merely pay- 
 ing into Court the funds to which the infant is entitled.^ All 
 improper advantages taken by the guardian over his ward will be 
 set aside by the Court. 
 
 The connection between guardian and ward is so close, the Protection of 
 guardian's opportunities of acquiring knowledge of the ward's ^as attained ' 
 property, and influence over his mind, are so many and various, twenty-one. 
 that where a man acts as guardian, or trustee in nature of guar- 
 dian, for an infant, the Court is extremely watchful to prevent 
 that person's taking any advantage, either by a hasty and ill- 
 considered settlement of accounts, or by way of direct bounty, 
 immediately upon his ward or cestui qiie trust coming of age, and 
 at the time of settling the account, or delivering up the trust. 
 This rule is applicable wherever the connection and influence of 
 guardianship has continued, though the ward may have been of 
 age for some time before the date of the transaction. Undoubtedly, 
 if after the ward or cestui que trust comes of age, and has been 
 put into possession of the estate, he thinks fit, when sui juris, 
 and at liberty, to grant a reward for care and trouble, the Court 
 could never set aside such a transaction ; but the Court guards 
 against its being done at the very time of accounting and deliver- 
 ing up the estate as the terms on which the guardian will perform 
 that duty ; and so far has this vigilance been carried, that the 
 relations of guardian and ward are in equity decisive against the 
 validity of transactions which between strangers could not be 
 impeached ; and it is scarcely possible in the course of the con- 
 nection of guardian and ward, any more than in that of attorney 
 and client, or trustee or cestui que trust, that a transaction shall 
 stand, purporting to be bounty for the execution of an antecedent 
 •duty.' Thus, in settling accounts out of Court, the protec- Accounts 
 tion afforded to infants is continued after they have attained between 
 twenty-one. until they have acquired all the information which |r"7d^opened 
 might have been had in adult years ; and accounts settled 
 and releases given under the influence of those relations which 
 exist between guardian and ward, or upon imperfect information, 
 will not be allowed to stand."* So, where accounts were settled 
 between a guardian and his ward a few months after the latter 
 came of age, and were signed by her without having been 
 examined by any one on her behalf, and without any delivery 
 of vouchers ; the accounts, too, being applicable only to a part 
 
 ^ See Marl of Pomfret v. Lord Windsor, 2 Ves. Sen. 472, 484, citing Lord 
 Dudley's Case. 2 Bencraft v. Rich, i Bro. C. C. 56. 
 
 3 Macph. Inf. 260. * Ihid. 350. See Kilbee v. Sneyd, 2 Moll. 186, 233. 
 
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700 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 When guar- 
 dian charged 
 with interest. 
 
 Office of 
 guardian 
 honorary and 
 gratuitous ; 
 
 of the receipts and expenditure, and waived by the guardian's 
 delivering in a subsequent account, purporting to be an account 
 from the commencement of the guardianship^ the accounts settled 
 between the guardian and ward were set aside. ' It is regarded 
 as a suspicious circumstance that the accounts have been settled 
 or a release given within a few days after the ward has attained 
 his majority ; ^ and though an account has been settled and 
 closed between the guardian and his wardj it will be ordered to- 
 be reopened where there is fraud, or there are errors, whether 
 caused by mistake or fraud ; and fewer errors will induce the 
 Court to reopen the account where there is a fiduciary relation 
 between the parties than where there is not ; ' and where a 
 fraudulent transaction is set aside as against the ward, he will be 
 entitled to follow his property so fraudulently disposed of into the 
 hands of third parties, who have notice, actual or constructive, of 
 the fiduciary position of the guardian.^ After the death of the 
 ward or cestui que trust, his representative may have the fraudulent 
 transaction set aside.* A guardian will be charged with interest 
 on his ward's money retained in his hands, and it is no answer to- 
 say that no use has been made of it, for it is the duty of the 
 guardian in his fiduciary capacity to employ his ward's estate and 
 money to the best advantage." 
 
 Guardians are allowed, on taking accounts, for all proper out- 
 goings,' and will be reimbursed all their necessary expenses, 
 snch as expenses out of pocket, if rightly incurred ; ° but they 
 cannot claim for remuneration for their personal toil and trouble, 
 their office and duties being purely honorary and gratuitous.'' 
 They are also not allowed to charge for expenses which may 
 have been incurred by them in bringing up and educating their 
 wards, unless expressly authorized to do so ; for as they are not 
 bound by any legal obligation to support them, they cannot make 
 a legal claim to remuneration ; but they should take steps to have 
 a proper allowance made to them out of the ward's fortune for 
 their maintenance and education. The rule enforcing the gra- 
 tuitous nature of a guardian's office has been long established in 
 England, for the old guardian in socage was only allowed his 
 reasonable costs and expenses when called upon to account for 
 
 1 Wych V. Pachington, 3 Bro. P. C. 44 ; and see MeVisli v. MellisJi, i L. J. Ch.^ 
 ,2, 120. ^ Steadman v. Palling, 3 Atk. 423. 
 
 ' 3 Dan. Ch. Pr. 484. ^ Lewin, chap. xxx. 
 
 5 See Aylward v. Kearney, 2 Ba. & B. 463. . , „ „, 
 
 <5 Dawson v. Massey, i Ba. & B. 219. ' Bex v. Sutton, ,3 Ad. & Jil. 597- 
 
 8 Lewin 714; 45 & 46 Vict. c. 38, s. 43. o -w t 
 
 " A different rule prevails in most of the United States of America ; St. Eq. Jur. 
 s 1268, and note, s. 1268 a ; Soh. Dom. Eel. e. 375. It also prevails in some of the 
 Aiistralian colonies ; Victoria, 15 Vict. Act x. s. 16. The difficulty of getting persons- 
 to undertake the office is the reason. 
 
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CHAP. VII.] RIGHTS OF WAED WHEN OF FULL AGE. 701 
 
 his ofifice.^ This rule does not apply to the case of receivers, not so in the 
 
 PflRA of 
 
 who are officers of the Court, and are allowed a salary or some receivers, 
 other remuneration for their care and pains in the execution of 
 
 their duties.' But it does apply, broadly speaking, to solici- but is in that 
 
 , . rr-ji J t- ^ o' _ of solicitors, 
 
 tors who have been appointed trustees. A solicitor who is a unless other- 
 trustee, whether expressly or constructively, cannot charge for f^^^^ ^^°^ ^ 
 his professional labours, but will be allowed only his costs out of 
 pocket,' unless there be a special contract or direction to that 
 effect.* It was formerly held that even then he could not 
 charge for matters not strictly professional ; * but in a late case 
 where a testator appointed his solicitor one of his trustees and 
 executors, and declared that it should be lawful for any of his 
 trustees or executors who might be a solicitor to transact any 
 business occasioned by the trusts or provisions of his will, whether 
 such business was usually within the business of a solicitor or 
 not, and that he should be allowed to make the usual professional 
 or other proper or reasonable charges for all business done and 
 time expended in relation thereto^ notwithstanding his being a 
 trustee or executor ; and the solicitor-trustee carried in for taxa- 
 tion a bill in which he made some charges for business done by 
 him not of the nature of the ordinary professional business of a 
 solicitor, the taxing-master disallowed all such charges. North, J., 
 however, held that under the terms of the will he was entitled 
 to make such charges, and referred the matter back to the master 
 to review his taxation.^ 
 
 There is no rule of law preventing infant wards on coming of Election of 
 age from ratifying and confirming the acts of their guardians done bound*bythe 
 during minority, and the transactions of a guardian on behalf *'='^ f. ^^^ 
 of his infant ward are valid, if within the scope of his general 
 powers, or authorized by the Courts of equity ; they are sustainable 
 though neither within the scope of his powers, nor previously 
 authorized, if the Court afterwards deems them prudent or bene- 
 ficial to the ward ; in other cases, subject to the ward's own 
 disaffirmance on reaching majority. Herein consists the infant's 
 right of election. Few acts of the guardian can be pronounced 
 valid, except in the sense that they are authorized, either gene- 
 rally or specially, by the Court which exercises supervision ; and 
 few of his transactions can be so utterly without authority as to 
 
 1 Litt. 123. " Salvis ipsis custodibus rationabilibus misis suie," 52 Hen. III. 
 c. 17, Statute of Marlbridge. See Borne v. Pringle, 8 CI. & Fin. 264, 287, per Lord 
 Cottenham ; and Barrett v. Hartley, L. K 2 Eq 789. 
 
 2 Dan. Ch. Pr. 1696, et seq. 
 
 5 Broughton v. Broughton, 23 L. J. Ch. 190. * Be Sherwood, 3 Beav. 338. 
 
 ^ Harhin v, Darhy, 2 L. T. 531. 
 
 ' Be Ames, Ames v. Taylor, 25 Ch. JD. 72. It may be stated that soliciLcrs as a 
 body are now anxious that this rule should be altered in their favour. 
 
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702 GUARDIAN AND WAED. [part iil 
 
 be absolutely void per se. The general rule of election recognizes, 
 then, two principles : first, the privilege of the infant ward, on 
 attaining full age, to avoid his guardian's transaction ; secondly, the 
 right of Courts of equity to control this privilege by interposing 
 to pronounce the transaction good. The whole doctrine, therefore, 
 seems in strict accordance with that more general rule, that the 
 accounts of the guardian are open to the inspection of the ward 
 at majority, and may be disputed down to the smallest item. 
 These principles suffice for general application to compromises, 
 submissions to arbitration, investments and re- investments of 
 personal property, and similar transactions, undertaken by the 
 guardian on the strength of a previous order of Court, or at the 
 risk of its subsequent approval. Thus, there are many acts 
 and transactions in reference to the ward's property which when 
 done by the guardian may be disaffirmed by the ward on coming 
 of age, but which may equally be confirmed by him ; but he 
 must have full knowledge of the effect of his confirmation;^ 
 and if the original act be fraudulent the alleged confirmation of 
 it will be keenly scrutinized.' If the guardian improperly 
 deal in his own name with his ward's property, a resulting trust 
 in favour of the ward at once arises ; and the latter may on 
 attaining majority elect to keep the property in the form in which 
 he finds it. If the ward does not ratify an unauthorized investment 
 the guardian will become liable for any loss that may accrue. All 
 advantageous bargains which a guardian makes with the ward's 
 funds are also considered subject to the ward's election, either to 
 repudiate or to uphold the contract and take the profits. This 
 applies, in general, to improper acts, as where the guardian specu- 
 lates with the trust funds, or invests them in his own business, 
 or, in a word, converts them to his own use ; and the ward may 
 either take the investment as he finds it, with all the profits, or 
 demand the original fund with interest.^ 
 
 In Docker v. Somes,^ Lord Brougham laid down the following 
 equitable principles on this subject: "Wherever a trustee, or 
 one standing in the relation of a trustee, violates his duty, and 
 deals with the trust estate for his own behoof, the rule is, that he 
 shall account with the cestui que trust for all the gain which he 
 has made. Thus, if trust money is laid out in buying and selling 
 land, and a profit made by the transaction, that shall not go to 
 the trustee who has so applied the money, but to the cestid qm 
 trust, whose money has been thus applied. In like manner (and 
 
 1 Sch. Dom. Eel. s. 385. I ^IV I,' ^""f'. 7 »■ L. Gas. 7So. 
 
 3 mrse V. Boyal, 12 Ves. 355. * Sch. Dom. Eel. s. 386. 
 
 "> 2 Myl. & K. 655, 664. 
 
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CHAP. yii.J EIGHTS OF WARD WHEN OF FULL AGE. 703 
 
 cases of this kind are more numerous), where a trustee or executor 
 has used the fund committed to his care in stock speculations, 
 though if the loss, if any, must fall upon himself, yet for every 
 farthing of profit he may make he shall be accountable to the 
 trust estate. So, if he lay out the trust money in a commercial 
 adventure, as in buying or fitting out a vessel for a voyage, or 
 put it in the trade of another -person, from which he is to derive 
 a certain stipulated profit, although I will not say that this has 
 been decided, I hold it to be quite clear that he must account 
 for the profits received by the adventure or from the concern. 
 Ill all these cases, it is easy to tell what the gains are ; the fund 
 is kept distinct from the trustee's other moneys, and whatever he 
 gets, he must account for and pay over. It is so much fruit, so 
 much increase on the estate or chattel of another, and must 
 follow the ownership of the property and go to the proprietor. 
 So it is also where one not expressly a trustee has bought or 
 trafficked with another's money. The law raises a trust by 
 implication, clothing him, though a stranger, with the fiduciary 
 character, for the purpose of making him accountable. If a 
 person has purchased land in his own name with my money 
 there is a resulting trust for me ; if he has invested my money 
 in any other speculation without my consent, he is held a trustee 
 for my benefit ; and so an attorney, guardian, or other person 
 standing in a like situation to another, gains not for himself, but 
 for the client, or infant, or other party whose confidence has been 
 abused." Improper dealings with the ward's property will be set 
 aside as against innocent third parties, unless acquiesced in by 
 the ward on attaining his majority. 
 
 Since, then, the position of guardian and ward is fiduciary, the Acquiescence 
 right of the ward to open up accounts between them is not barred attaining 
 by the Statute of Limitations," but lasts as long as that relation- ™*Jo"'y- 
 ship exists between them,^ and the account may be taken from 
 its commencement.' During infancy the ward cannot in any 
 way authorize a breach of trust,^ but he may be bound by 
 acquiescence after attaining twenty-one.'' Acquiescence is no 
 bar to a claim by the ward to set aside a release while the 
 relation of trustee and cestui que trust or the influence caused 
 by it continues, or the circumstances remain unaltered under 
 which the transaction in question took place." An account 
 settled within a month after an infant came of age between him- 
 
 1 Mathew v. Brise, 14 Beav. 341. See 51 & 52 Vict. u. 59, s. 8. 
 
 2 A ylward v. Kearney, 2 Ba. & B. 463. 
 
 2 Wedderburn v. Wedderburn, 4 Myl. & Cr. 41. 
 
 * Overton v. Bannister, 3 Ha. 503. '' Pee Steadman v. Palling, 3 Atk. 423. 
 
 5 Wedderburn v. Wedderburn [uhi sup,). 
 
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704 
 
 GUARDIAN AND WARD. 
 
 Protection ex- 
 tended as long 
 as fiduciary 
 relation of 
 guardian and 
 ward con- 
 tinues. 
 
 What is 
 
 ficquiescence. 
 
 Direct. 
 
 Indirect, 
 
 [part III. 
 
 self, and one who was not an actual guardian, but only in the 
 nature of one, was opened, though vouchers had been delivered 
 up.' This protection is not confined to merely infant wards 
 but where the fiduciary relationship is carried on after the latter 
 have attained their majority ; for where a guardian, after his 
 ward attains full age, continues to manage the property at the 
 request of the ward, and before the accounts of his receipts and 
 payments during minority are settled, it is, in effect, a continu- 
 ance of the guardianship as to the property ; and he must account 
 on the same principle as if they were transactions during the 
 minority ; and under such circumstances an injunction will be 
 granted (on terms) to restrain a guardian from proceeding in an 
 action to recover the balance claimed by him on account of the 
 transactions after his ward comes of age.^ But a ward, after 
 attaining twenty-one, by acquiescence in or confirming the acts of 
 the guardian, may be barred from obtaining any relief against 
 them ; but such acquiescence or confirmation must be accom- 
 panied by a full knowledge of his rights on the part of the 
 ward.^ 
 
 There are two kinds of acquiescence : First, direct, where the 
 act complained of was done with a full knowledge and express 
 approbation of another, in which case a Court of equity will not 
 allow that other to seek relief against the very transaction to 
 which he was himself a party. Secondly, indirect, where a person 
 having a right to set aside a transaction, stands by and sees another 
 dealing with property in a manner inconsistent with that right, 
 and makes no objection ; when also a Court of equity will not 
 relieve. But in the latter case the Court not only looks to the 
 conduct of the person who stands by, but also considers how far 
 the person in possession of the property has any just claims to 
 the protection of the Court. Where, for instance, the possessor 
 lays out his money with a full knowledge that the property which 
 he improves belongs to another, then it is said he makes the out- 
 lay to his own cost. " If," observed Turner, L.J., "a man places 
 his property on the land of another with full knowledge of that 
 person's title, how can the fact that the landowner assented to 
 its being placed there give an equity to have it restored ? If it 
 did, the doctrine would come to this, that whenever a man lays 
 out money on another person's land with the consent of the 
 owner, he has an equity to have it repaid."" Where, how- 
 ever, the act complained of has been completed without any 
 
 1 Revett V. Harvey, 2 L, J. Ch. 39 ; and see Wych v. Facldngton, 3 Bro. P. C. 44. 
 
 2 Mellish V. Mellish, i L. J. Ch. 32, 120. „ • , tt t 
 
 3 Earl of Pomfret v. Lord Windsor, 2 Ves. ben. 472 ; Kay v. Smith, 7 H. L 
 Cas. 750. ^ Bennie v. Young, 2 Pe G. & J. 136 142. 
 
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CHAP. VII.] RIGHTS OF WARD WHEN OF FULL AGE. 705 
 
 knowledge or assent on the part of the person seeking relief, 
 there can be no acquiescence in the strict sense of the word, 
 which has been defined as "quiescence under such circumstances 
 as that assent may be reasonably inferred from it, and is no more 
 than an instance of the law of estoppel by words or conduct. 
 When once the act is completed without any knowledge or assent 
 upon the part of the person whose right is infringed, a right of 
 action has vested in him, which at all events, as a general rule, 
 cannot be divested without accord and satisfaction, or release 
 under seal. Mere submission to the injury for any time short of 
 the period limited by statute for the enforcement of the right of 
 action cannot take away such right, although under the name of 
 laches it may afford a ground for refusing relief under some par- 
 ticular circumstances." ' Laches on the part of the ward after 
 coming of age will, if it is gross, disentitle him to relief, but mere 
 knowledge of his rights of a few years' standing, as, for instance, 
 three or ten years, will not take away his right to impeach the 
 transaction.^ 
 
 It has been seen that it is a maxim of equity that a guardian Gifts between 
 must not make a profit out of his ward's estate ; ^ thus, if he ward, 
 buy up incumbrances on his ward's estate, he must not charge the 
 ward with more than he paid ; ^ and where he purchases the 
 estate of his ward under suspicious circumstances, the Court will 
 not hesitate to set aside the purchase, even though the sale pro- 
 fessed to have been made under an order of the Court of Chan- 
 cery.* It is a like maxim of equity that the guardian must When nndue 
 not use his influence with the ward for the purpose of obtaining sumed!"* ^^''' 
 benefits at his hands ; consequently, transactions of such a nature 
 are closely scrutinized ; and the Court, if it deems proper, will not 
 hesitate to set them aside, where the natural influence of the one 
 has been exercised over the other ; for a guardian cannot take 
 anything from his ward pending the guardianship, or at the close 
 of it, or at any period until his influence has ceased to exist." 
 The Court will not, of course, undertake to set aside every gift 
 that a ward may make to his guardian, but the rule is that where 
 a person standing in the relation of guardian to ward takes a gift 
 from, or makes a bargain with the latter, the proof lies upon him 
 that he has dealt with him exactly as a stranger would have 
 done, taking no advantage of his influence or knowledge, putting 
 the other party on his guard, and bringing everything to his 
 
 1 Lewin, 995. 2 jn^i^ 1059, and the cases there cited. 
 
 ■> See ante, p. 660. ■" Henley v. , 2 Ch. Cas. 245. 
 
 ^ Oary v. Gary, 2 Sch. & Lef. 173. 
 
 * Per Lord Eldon in Wood v. Downes, 18 Ves. 120, 127. 
 
 2 Y 
 
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706 
 
 GUARDIAN AND WAED. 
 
 [part IIl_ 
 
 When undue 
 influence not 
 presumed. 
 
 Gifts and 
 ti-ansactionf, 
 &c., after 
 ward has 
 attained 
 majoritr. 
 
 When set 
 aside. 
 
 knowledge which he himself knew.' It is an element of 
 undue influence that the ward had not independent advice as to 
 the nature and effect of the transaction into which he has entered. 
 The connection between guardian and ward is so close, the 
 guardian's opportunities of acquiring knowledge of the ward's 
 property and influence over his mind are so many and various, 
 that where a man acts as guardian, or trustee in nature of guar- 
 dian, for an infant, the Court is extremely watchful to prevent 
 that person's taking any advantage, either by a hasty and ill- 
 considered settlement of accounts, or by way of direct bounty, 
 immediately upon his ward or cestui que trust coming of age, and 
 at the time of settling the account, or delivering up the trust. 
 This rule is applicable wherever the connection and influence of 
 guardianship has continued, though the T^ard may have been of 
 age some time before the date of the transaction.^ But where 
 an infant lives with a relative, who is not in the position of a 
 guardian, nor exercises any undue influence, he may make a gift 
 to that relative a few months before death, and the gift will be 
 upheld.' Though a gift made to a person standing in a fidu- 
 ciary relation to the donor may be voidable, yet if, after the con- 
 fidential relation has ceased to exist, the donor intentionally elects 
 to abide by the gift, it cannot be impeached after his death, even 
 though he were unaware of the voidable nature of the gift.^ 
 
 If, after the ward becomes of age and actually sui juris, and 
 has been put into possession of his property, he chooses to make 
 a gift to his guardian as a reward for the trouble and care 
 expended on his behalf, the gift will not be set aside. But the 
 Court, as before stated, looks with suspicious eyes on such trans- 
 actions when done at the very time of accounting and delivering 
 up the estate ; and where it was claimed by the guardian as a 
 bounty for the execution of his duty, the Court would not allow it 
 to stand." So, where the right is made or benefit conferred upon 
 the guardian so soon after the ward comes of age that the influence 
 derivable from the superior age and knowledge and experience of 
 the guardian seems to have been exercised upon the youthful 
 ward, the Court will relieve him from the pressure that has been 
 put upon him. Thus, " where a man acts as guardian, or trustee 
 in nature of a guardian for an infant, the Court is extremely 
 watchful to prevent that person's taking any advantage imme- 
 diately upon his ward or cestid que trust coming of age, and at 
 the time of settling account or delivering up the trust ; because 
 
 1 Per Lord Brougham in Hunter v. AtUns, 3 Myl. & K. 113, 135. 
 
 2 Macph. Inf. 260, 261. '' Taylor v. Johnston, 19 Ch. D. 603. 
 
 * Jlitdiell V. Homfray, 8 Q. B. D. 587. ^ Batch v. Batch, 9 Ves. 292. 
 
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CHAP. VII.] RIGHTS OF WARD WHEN OF FULL AGE. 707 
 
 an undue advantage may be taken. It would give an oppor- 
 tunity either by flattery or by force, by good usage, or by bad 
 usage imposed, to take such advantage ; and therefore the prin- 
 ciple of the Court is of the same nature with relief in this Court 
 on the head of public utility, as in bonds obtained from young 
 heirs, and rewards given to an attorney pending a cause, and 
 marriage brocage-bonds. All depend upon public utility ; and 
 therefore the Court will not suffer it, though perhaps in a par- 
 ticular instance there may not be an actual unfairness. Upon 
 that ground I went in the case cited : ' in which I have added at 
 the end of my note taken at the hearing of the cause, to ie abso- Gifts set aside 
 lutely set aside, heing hetween a guardian and his ward just come of puwicutuity, 
 
 age, and on reason of public utility TJie ride of the Court 
 
 as to guardians is extremely strict, and in some cases does infer 
 
 some hardship, as where there has been a great deal of trouble, 
 
 and he has acted fairly and honestly, that yet he shall have no 
 
 allowance ; but the Court has established that on great utility and 
 
 necessity, and on this principle of humanity, that it is a debt of 
 
 humanity that one man owes to another, as every man is liable to 
 
 be in the same circumstances. Undoubtedly, if after the ward or Ward when of 
 
 cestui que trust comes of age, and after actually put into possession com^nse^" 
 
 of the estate, he thinks fit, when sui juris and at liberty, to grant guardian. 
 
 that or any other reasonable grant by way of reward for care and 
 
 trouble, when done with eyes open, the Court could never set 
 
 that aside ; but the Court guards against doing it at the very 
 
 time of accounting and delivering up the estate, as the terms ; 
 
 for the Court will not suffer them to make that- the terms of doing 
 
 their duty." ' 
 
 In the case of Hatch v. Hatch^ the plaintiff, Mrs. Hatch, at Batch v. Batch, 
 the age of four years, upon the death of her father, became 
 seised in fee of the manor and rectory of Sutton, the former 
 worth about ;^i 5^000, the latter about ;£^200 a year, capable of 
 improvement. G. Hatch, who had married her sister, was her 
 guardian. She lived with him till her marriage, and he received 
 £1^0 & year for her maintenance. The rectory becoming vacant 
 during her minority, G. Hatch was presented. In October 1779, 
 she came of age, and on the 20th of January 1780 she executed 
 a conveyance of the advowson, in consideration, as it was ex- 
 pressed, of her great friendship, kindness, and regard for him, 
 the care taken of her by him, love and affection, and so forth. 
 J. Hatch, who was an attorney, and brother of G. Hatch, prepared 
 the deed, and was one of the attesting witnesses. She continued 
 
 ^ Pierce v. WariTig, i Ves. Sen. 380, 
 
 2 Per Lord Hardwioke in Hylton v. Hyltmi, 2 Ves. Sen. 547, 548. ^ TJhi sup. 
 
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708 
 
 GUAEDIAN AND WARD. 
 
 [PAET m. 
 
 Aylward v. 
 Kearney. 
 
 MiMand v. 
 Irring. 
 
 to live with G. Hatch, who deducted the same allowance for her 
 maintenance, till 1784, when she married J. In 1800, after the 
 death of G., they filed the bill, charging fraud in obtaining the 
 conveyance, that she was very deaf, and intended only to grant 
 the next presentation. An account was settled between her and 
 G. Hatch. The conveyance was ordered to be set aside. In the 
 course of that case Lord Eldon remarked, " This case proves the 
 wisdom of the Court in saying it is almost impossible in the 
 course of the connection of guardian and ward, attorney and 
 client, trustee and cestui que trust, that a transaction shall stand, 
 purporting to be bounty for the execution of antecedent duty. 
 There may not be a more moral act, one that would do more 
 credit to a young man beginning the world, or afford a better 
 omen for the future, than if, a trustee having done his duty, the 
 cestui que trust, taking it into his fair, serious, and well-informed 
 consideration, were to do an act of bounty like this. But the 
 Court cannot permit it, except quite satisfied that the act is of 
 that nature, for the reason often given, and recollecting that in 
 discussing whether it is an act of rational consideration, an act of 
 pure volition, uninfluenced, that inquiry is so easily bafiled in a 
 court of justice ; that instead of the spontaneous act of a friend, 
 uninfluenced, it may be the impulse of a mind misled by undue 
 kindness, or forced by oppression ; the difficulty of getting pro- 
 perty out of the hands of the guardian or trustee thus increased ; 
 and, therefore, if the Court does not watch these transactions 
 with a jealousy almost invincible, in a great majority of cases it 
 will lend its assistance to fraud ; where the connection is not 
 dissolved, the account not settled, everything remaining pressing 
 upon the mind of the party under the care of the guardian or 
 trustee." ' 
 
 In Aylward v. Kearney,^ a man of weak understanding came 
 of age on the i6th of October 1779, and within a fortnight 
 from that time executed a lease of lands, at an inadequate 
 rent, in favour of a son of his guardian. He married in 
 1780, and died in 1792, but continued during his life under the 
 original dominion and control of the guardian and his family. 
 His son came of age in 1 807, and filed a bill in 1 8 1 2 to have 
 the lease set aside. The decree was in his favour, and the length 
 of time was held, under the circumstances, no bar to his claim. 
 In Maitland v. Irving,^ the plaintiff, having lost her mother when 
 she was very young, was placed by her father under the care and 
 protection of the defendant Maclean, her uncle by marriage, and 
 had resided with him and his wife ever since. In 1842 her 
 
 1 P. 296. 
 
 2 2 Ba. & B. 463. 
 
 s 15 Sim. 437. 
 
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CHAP, vii.] EIGHTS OF WAED WHEN OF FULL AGE. 709 
 
 father died, and she being still an infant, and entitled to con- 
 siderable property, Maclean was appointed her guardian by the 
 Court of Chancery. In September 1 844, she attained twenty- 
 one. In January 1846, Maclean, who had agreed to pay ;^5ooo 
 on the 2 5 th of that month to Irving & Brown (who were partners 
 as coal merchants) for the purchase of their business, &c., 
 obtained and gave them the plaintiff's guarantee for the payment 
 being made on the 14th of February then next, in consideration 
 of their having consented to postpone the payment until that 
 time. Afterwards another arrangement was made between 
 Maclean and Irving & Brown, in pursuance of which the latter 
 delivered up the guarantee, and Maclean procured and gave them 
 the plaintiff's cheque for ;£^3000, &c. Under the circumstances 
 the Court of Chancery granted and afterwards continued an in- 
 junction restraining the holders of the cheque from prosecuting 
 an action against the plaintiff to recover the ;^3000.' The 
 Court not only enforces its controlling and correcting powers in 
 cases where the parties are in the actual and full relationship to 
 one another of guardian and ward, but where the person whose 
 injluence has been unduly exercised is in loco tutoris, or guasi- 
 guardian to the person affected and controlled by his influence. 
 Thus, in Archer v. Hudson,^ a niece, two months after she came Archer v. 
 of age, and after her guardians had fully accounted to her, 
 entered into a voluntary security for her uncle, by whom she 
 had been brought up, and who was considered by the Court as 
 standing in loco parentis. The Court set it aside. 
 
 Two principles can be extracted from this case, namely, that When undue 
 where a transaction takes place between parent and child, just presumed. 
 after the child has attained twenty-one, and prior to what may 
 be called a complete emancipation, without any benefit moving 
 to the child, the presumption is that an undue influence has been 
 exercised to procure that liability on the part of the child, and a 
 party seeking to maintain such a transaction must show that the 
 presumption is adequately rebutted ; — and that, though courts of 
 equity do not interfere to prevent an act even of bounty between 
 parent and child, yet they will see that the child is placed in 
 such a position as will enable him to form an entirely free and 
 unfettered judgment, independent altogether of any sort of con- 
 trol. So, where in one case a promissory note appeared to have 
 been signed by a lady in her twenty-second year, as surety for 
 her stepfather, in whose house she had been residing with her 
 
 1 See also Maitland v. Backhouse, 16 Sim. 58, where the plaintiff was the same as 
 in the case in the text, and the transaction of a similar nature. 
 
 2 7 Beay. 551. 
 
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710 
 
 GUARDIAN AND WARD. 
 
 [part III. 
 
 Continuing 
 influence. 
 
 Where in- 
 fluence of 
 guardian over 
 ward re- 
 moved, gifts 
 and transao- 
 tiona between 
 them main- 
 tainable. 
 
 mother for many years previously, the Court restrained execution 
 against her on a judgment obtained by the payee.' 
 
 This undue influence may be held to continue for many years 
 after the actual or g'Masi-relation of guardian and ward has ter- 
 minated, and the latter has passed his majority ; and any trans- 
 actions carried out between them in which that undue influence 
 was brought to bear will be set aside. Accordingly, where the 
 plaintiff, a young woman, who was living with her mother and 
 stepfather in 1859, shortly after she came of age, at the solid- - 
 tation of her stepfather, executed a bond as surety to secure the 
 repayment of a sum of money advanced by the defendant, payable 
 at the end of six years. In 1866 the defendant brought an 
 action and recovered judgment against the plaintiff's stepfather 
 on the bond, and to avoid an execution, the plaintiff", who was 
 then twenty-nine years of age, but who still resided principally 
 with her stepfather, was induced by him to execute a second 
 bond as surety to secure the amount of the judgment and costs. 
 Both bonds were prepared by the stepfather's solicitor, and the 
 plaintiff had no independent advice. In 1872 the defendant 
 brought an action against the plaintiff on the bonds ; she there- 
 upon filed her bill to set them aside, and it was held by the 
 Court that the second bond must be taken as connected with the 
 first, and that, as there was no proof that the plaintiff was aware 
 of the invalidity of the first bond, the execution of the second 
 bond was not a confirmation of the first, and that both bonds 
 must be set aside against her ; and that, under the circumstances, 
 she was not barred by laches, notwithstanding the time which 
 had elapsed before she asserted her right to relief.^ But where 
 the relationship between the guardian and the ward is totally at 
 an end, and the influence that the one may have over the other 
 is removed, gifts and conveyances between them may be main- 
 tained ; and though it may be improper, and a suspicious thing 
 for a guardian to purchase his ward's estate immediately upon his 
 coming of age, yet if he gives full consideration for it, it is not 
 voluntary, nor can it be set aside.' 
 
 The above cases are cited to show the leading principles upon 
 which the Court acts ; but whether such transactions will be sup- 
 ported or set aside, must in each and every instance depend upon 
 the evidence adduced as to their nature. 
 
 I ll^IoJ-flsmfl K°io Ch. App. 15 ; and see the principle i-olved Jn tbe 
 case of Mellish v. Mellish, 1 L. J. Ch. 32, 120. ' Oldm v. Samhourn, 2 Atk. 153- 
 
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PART IV- 
 
 INFANTS. 
 
 CHAPTEK I. 
 
 CAPACITIES, DISABILITIES, AND IMMUNITIES 
 OF INFANTS. 
 
 PAGE 
 
 What is an Infant . . 711 
 
 When Infant combs of Age .... 
 What Offices an Infant may fill 
 What Offices an Infant may not Fill 
 
 INPAUT cannot make A WILL 
 
 Responsibility of Infants foe Criminal Acts — I 
 OF Infants under Seven Years op Age 
 
 Liability between Seven and Fourteen 
 Evidence op Isfants .... 
 
 Evidence -MUST be upon Oath 
 Infant can take by Descent, etc. 
 
 Immunity 
 
 713 
 713 
 713 
 714 
 
 715 
 715 
 717 
 717 
 718 
 
 AiSr infant,' in the legal intendment of the term, is one that What is an 
 has not yet arrived at majority, which period in England is fixed ™ *" • 
 for both sexes at twenty-one years, except for the Sovereign, who 
 attains it at eighteen, though for legislative purposes the king is 
 never in minority/ though it is uusal to appoint a guardian for 
 him if of tender age. Popularly, it means one of tender age, who 
 is quite incapable of taking care of himself, a chUd, in fact, under 
 seven years of age ; and one who has reached years of discretion 
 but not of majority is usually styled a minor, though the English 
 law does not recognize any such distinction; and the "child of 
 nineteen is as the child of five years old." ' But, as will shortly 
 
 ^ Derived througli the French "enfant " from the Latin infans, that is, one who 
 cannot speak (infari). Compare the Greek vt^wios. 
 
 2 I Bl. Com. 248. 
 
 ■* Per Lord Hardwicke in Hearle v. Oreenhauh, 3 Atk. 695, 703 ; see also Morgan 
 V. Thome, 7 M. & AV. 400. 
 
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71- INFANTS. 
 
 [part IV. 
 
 be seen, in some respecbs the capacity of minors to transact their 
 own and other persons' affairs is recognized. In Roman law full 
 age, 'perfeda mtas, was reached at twenty-five ; pupilage extended 
 to fourteen in males and twelve in females, when each sex was 
 deemed respectively to have arrived at puberty. Up to puberty, 
 when the father was dead (naturally or civilly), they were under 
 tutors ; after puberty till majority, though arrived at legal years 
 of discretion, they were under curators who were assigned to 
 manage their affairs. This distinction still holds good in Scot- 
 land. 
 
 The reason for drawing a distinction between mere children in 
 age and those who are more advanced in years, and even close 
 upon majority, is, that the mind and intellect of the young are 
 constantly growing in strength and expanding ; and that while 
 there must of necessity be a fixed point at which they reach their 
 full capacity in the eye of the law, yet before that point is reached 
 they have in reality become competent and qualified to exercise 
 many functions. Thus, infants who have arrived at a marriage- 
 able age may validly contract marriage ; ' and if of the age of 
 fourteen, and entitled to do so, they may appoint their own guar- 
 dians ; and if of the age of sixteen they may, under certain cir- 
 cumstances, elect, even as against their parents, to live apart from 
 their control and custody. It has been, therefore, frequently found 
 necessary to allow persons who had attained the age of discretion, 
 but not of full majority, to act as though they had attained it ; 
 consequently, " by the civil law the venm mtatis (or privileges of 
 majority) was grantable by the Sovereign or supreme authority of 
 the state to males who had attained their twenty-first year, and 
 to females who had attained their eighteenth year, if from their 
 conduct they were deemed capable of managing their own affairs."" 
 The civil law did not permit the mere marriage of the minor to 
 operate as an emancipation ;' nor does the English law in the 
 case of a male ; ^ in the case of a female, it does operate to free 
 her from the control of her natural or legal guardians so far as 
 her person is concerned ; if she marry without their consent, it 
 is not so clear that their control of her property is terminated, 
 and as under the Married Women's Property Act, 1882,* her 
 property remains her own, and is unaffected by any marital 
 
 1 A girl of twelve and a boy of fourteen are deemed to have arrived at a stage of 
 Ijliysical maturity which renders them capable of exercising a matrimonial discretion; 
 and a marriage between the sexes at that age is not rendered invalid because of the 
 want of age. If the marriage is between infants below that age, it is inchoate or 
 imperfect, and may be set aside. See ante. Husband and Wife, chap. v. pp. 73 et seq. 
 
 '■^ Burge, For. & Col. Laws, 116. By the civil law the age of majority was twenty- 
 five. 
 
 '■' Dig. lib. 4, tit. 4, 1.. 2. By the Code Civil of I'rance (Art. 476) it does so 
 operate. * Be Memles, i Ves. Sen. 91." ^ 45 & 46 Vict. c. 75. 
 
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CHAP. I.J CAPACITIES, DISABILITIES, IMMUNITIES. 713 
 
 rights, marriage will scarcely be deemed to be an emancipation of 
 their control over her property. Where the infant is a ward of 
 Court, her marriage is not allowed to end its authority either 
 over her person or her property.' 
 
 An infant comes of age on the commencement of the last day When infant 
 which completes his twenty-first year ; for in English law ultimus """"^ ° *^^' 
 dies ccephis pro completo liabetur ; in" other words, the law takes no 
 heed of a fraction of a day ; thus, a man born on the i st February, 
 1600, after eleven o'clock at night, was adjudged to be of full 
 age after one o'clock on the morning of the last day of January, 
 1621.^ 
 
 During their minority infants are under disability, as lacking what office* 
 full judgment and mental capacity. But as regards acts which g'jj*''* "^^ 
 an infant may do, or ofiices he may fill, this disability does not 
 prevail in all instances. Offices which require only skill and 
 diligence he may fill and execute himself when arrived at the age 
 of discretion, or he may appoint a sufficient deputy to exercise 
 them. Thus, he may fill the offices of a park-keeper, gaoler, 
 forester, &c. ; ^ he may also serve as an officer, or in the ranks, in 
 the army or navy. He may fill a purely ministerial office, as 
 clerk of the peace, whether in person or by deputy." 
 
 An infant may be lord of a manor, and make grants of the 
 copyhold land, for the estate of the copyholder is not derived 
 out of the estate or interest of the lord of the manor, for he is 
 but an instrument to make the grant.^ He may be a partner, 
 but, generally speaking, when he comes of age he may disaffirm 
 past transactions, if he do so unequivocally and soon after attaining 
 his majority." He may likewise be a shareholder, though he 
 may be rejected by the company on ascertaining the fact of his 
 infancy.'' So, too, he may be appointed executor, though he is 
 not liable for any devastavit committed by him or his co-executor; 
 and if he be sole executor, a guardian durante minore celate is 
 appointed to administer the estate on his behalf ; ^ but if he is 
 appointed co-executor with adults who prove, he may come in 
 and act on attaining majority without further probate." He may 
 be an agent and bind his principal by his acts.'" 
 
 But offices which may, broadly speaking, be said to import the What offices. 
 exercise of discretion, he cannot fill, nor can he hold any office of n'orfiii"*'^ 
 
 ^ Beepost, chap. v. ^ Anon, i Salk. 44 ; see Herbert v. Turhall, Keb. 589. 
 
 ^ Plowd. 379, 381 ; 9 Rep. 48, 97. * Oroahie v. Hurley, 2 Ale. & Nap. 431. 
 
 " Swayne's Case, 8 Kep. 63. ^ Goode v. Harrison, 5 B. & Aid. 147. 
 
 ' Symon's Case, L. K. 5 Ch. App. 298 ; Me Gardner, Long v. Gardner, 67 L. T. 
 
 552. 
 
 ^ See ante, Guardian and Ward, chap. ii. pp. 601 et seq. For the infant's liabi-lities 
 as partner or shareholder, see post, chap. ii. 
 
 5 Cummins v. Cummins, 8 Ir. Eq. Kep. 723. i" Co. Litt. 52 a. 
 
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71J: 
 
 INFANTS. 
 
 [part IV. 
 
 Infant ought 
 not to be 
 appointed 
 trustee. 
 
 I Dfaut cannot 
 make a will. 
 
 "^^ Z "^ ?f°^°^^''y t'^^st-' Thus, he cannot be a guardian/ 
 sheriffs baihfJ/ factor, or receiver/ or an acting executor or 
 administrator/ or priest, deacon/ barrister, solicitor, or attorney 
 ±or another in a suit, physician, surgeon, or apothecary.' An 
 mfant cannot be a juror,« or sit or vote in either House of 
 Par lament/ or exercise the right of voting for a member of 
 Parliament,'" or be enrolled as a burgess/' town councillor,'^ alder- 
 man/' or mayor. '^ 
 
 An infant ought not to be made a trustee, for he is deemed to 
 want capacity to carry out the trusts, and exercise powers which 
 require the application of prudence and discretion.'^ If he is so 
 appointed, the Court will appoint a fresh one in his place,'' but 
 without prejudice to an application by him on attaining majority 
 to be restored to the trusteeship/' and the « incapacity " within the 
 meaning of the Conveyancing and Law of Property Act, 1881," 
 is not that of infancy." An .infant could not, as a rule, be made 
 liable for his breaches of trust.^" unless the breach is of a continu- 
 ing nature in which he acquiesces after attaining majority.^' If 
 he commit what would amount to a tort in respect of trust- 
 moneys, he would be liable to make good such breach of trust.^ 
 From this latter fact arises the presumption that where property 
 is given to an infant, it is intended that he should take it bene- 
 ficially, and not as trustee.^ 
 
 An infant cannot now make a will, for by the Wills Act, 
 1837,^^ it is enacted that " no will made by any person under 
 the age of twenty-one years shall be valid." This applies equally 
 to personal and real estate. Formerly an infant female of twelve 
 and a male infant of fourteen were, broadly speaking, respectively 
 capable of making a will at those ages, but the question is 
 not free from doubt.''* But if the infant evinced a want of 
 
 ' Claridge v. Evehjn, 5 B. & Aid. 81. = Vin. Abr. Guardian [B]. 
 
 3 Cuckson V. Winter, 2 M. &K. 313. ^ F. N. B. 118 ; Roll. Abr. 117. 
 
 5 I Wms. Exors. 1S5 ; 38 Geo. III. c. 87, a. 6. « 44 Geo. III. u. 43. 
 
 ' Co. Lit. 128 a. 8 6 Geo. IV. c. 50, b. <. 
 
 ° I Bl. Com. 162. There have been instances in. which minors have been returned 
 to Parliament ; and the latest most memorable case was that of C. J. Fox, who was 
 returned for Midhurst eighteen months before he attained his majority ; and his return 
 was not invalidated. 
 
 '" 7 & 8 Wm. III. c. 25, s. 8. See 48 Vict. c. 16 and Hargreaves v. Hopfer, 
 I C. P. D. 195. " 45 & 46 Vict. c. 50, B. 9 (2) a. '2 Ibid. s. 11 (2) a. 
 
 13 Ibid. s. 14 (3). " Ibid. s. 15 (i). 
 
 15 Searle v. Greenhanh, 3 Atk. 695, 712. '^ Be Porter, 25 L. J. Ch. 482. 
 
 1' -He Shelmerdine, 33 L. J. Ch. 474 ; Me Brunt, W. N. 1883, p. 220. 
 
 18 44 & 45 Vict. c. 41, B. 31. 
 
 11 Me Brunt (uU sup.) ; Me Tdlatire, W. N. 1885, p. 191. 
 
 -" Hindmarsh v. Southgate, 3 Russ. 324. 
 
 -1 iSculthorpe v. Tippen, L. R. 13 Eq. 232. 
 
 ^2 Me &ager, Seeley v. Brigcjs, 60 L. T. 665 ; Me Games, Games v. A^lin, 
 31 Ch. D. 147. 
 
 ^ Lamplucih v. Lamplugh, i P. Wms. 112 ; Smith v. King, 16 East, 283. 
 
 =1 I Vict. c. 26, .,. 7. 25 Co. Litt. 89 b (Harg.) 
 
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CHAP. i.J CAPACITIES, DISABILITIES, IMMUNITIES. 715 
 
 discretion or disposing power, probate would not have been 
 granted. 
 
 By an Act passed in the reign of Charles II.,' a father, May appoint 
 although under twenty-one, was empowered by deed or will to fhndren! 
 appoint a guardian of his children after his decease until they 
 should respectively attain twenty-one years. This testamentary 
 power has been taken away from minors by the Wills Act, 1837. 
 An appointment by deed of a guardian has been held to be of a 
 testamentary nature, and to be revocable by will,^ but as the 
 Act itself draws a distinction between a deed and a will, and as 
 it has been held that an appointment of a guardian by will does 
 not require probate,' it would seem that an infant can still 
 appoint a guardian for his children by deed." The same 
 principles would apply to the case of an infant mother, for she 
 can now appoint a guardian to her infant children by deed as well 
 as by will.^ 
 
 An infant is regarded with especial favour in the eye of the 
 law ; thus it has been said, " An infant in all things which sound 
 to his benefit shall have favour and preferment in law as well as 
 another, but shall not be prejudiced by anything to his dis- 
 advantage."" So "a deed will pass an interest to an infant 
 even when coupled with a liability, if it be for his benefit to 
 accept it." ' An infant cannot by any act of his own alter 
 his status, so as to deprive himself of its immunities, except 
 in such cases as where he fraudulently represents himself to be 
 of age, and obtains credit through such misrepresentation.^ 
 For his immunities in actions brought by or against him, see 
 Chapter VII. 
 
 An infant under the age of seven has an absolute immunity in Eesponaibility 
 respect of liability for crime. Under that age he is considered criminal acts. 
 in law to lack sufficient reason so as to be rendered accountable i™°i'^i% 
 
 under seven. 
 
 or answerable for his acts. Between seven and foitrteen he is Liability te- 
 llable for his criminal acts if express malice on his part can be t'^f^" s^^®" 
 
 '^ _ ^ _ and fourteen. 
 
 shown, because, as the maxim has it, malitia supplet cetatem ; in 
 other words, his criminal intent proves that he is not lacking in 
 mind, but only in years, but the evidence of that malice which 
 is to supply age ought to be strong and clear beyond all doubt 
 and contradiction.^ Blackstone '" mentions cases in which a girl 
 of thirteen, and boys of ten, nine, and even eight, were condemned 
 
 ^ 12 Car. ir. 0. 24, b. 8. ^ Lecone v. Sheires, i Vern. 442. 
 
 ^ Sx parte The Earl of llcliester, 7 Ves. 348. 
 
 * I Byth & Jai-rn. Conv. 798 {4th edit, by Eobbins). ' 49 & 50 Vict. 0. 27, s. 3. 
 ° Basset's Case, Dyer, 136 a, 137 a. 
 
 '' Per Page Wood, L.J., in Luinsderi's Case, L. R. 4 Cli. App. 31, 38. 
 
 * See Ex parte Jones, Be Jones, 18 Ch. D. 109. 
 « 4 BI. Com. 24. i« Ibid. 
 
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716 
 
 Boy under 
 fourteen can- 
 not be con- 
 victed of rape. 
 
 Punishment of 
 Infants under 
 Summary 
 Jurisdiction 
 Act, 1879. 
 
 Industrial 
 
 Schools Act, 
 1866. 
 
 Eeformatory 
 Schools Act, 
 1866. 
 
 INFANTS. [part iv. 
 
 to death and executed for various capital offences. There is an 
 exception to this rule in cases in which a charge of rape or the 
 attempt to ravish ' is made against youths under fourteen, who 
 are by law deemed to be physically impotent and incapable of 'com- 
 mitting the crime, and no evidence is admissible to show that they 
 could commit the offence, though they may be convicted upon the 
 counts charging the minor oiJence ; " thus, a male under fourteen 
 cannot be convicted of having carnal knowledge of a girl under 
 thirteen,' though he may be convicted of an indecent assault on 
 her.^ This question of malice supplying age is one of fact. After 
 the infant has attained fourteen, the legal presumption in his 
 favour disappears, and he is as fully responsible for his criminal 
 acts as though he were an adult ; thus, if he fraudulently convert 
 goods which have been delivered to him under an agreement for 
 their hire, he can be convicted of larceny as a bailee." Where 
 an act is made treason or felony, it extends as well to infants, if 
 arrived at years of legal capacity, as to adults, unless there is a 
 provision in the statute creating it, which expressly excepts 
 them." If the offence charged against an infant in the indict- 
 ment be a mere non-feasance, then in some cases he shall be 
 privileged by his nonage, if under twenty-one, because laches 
 ought not to be imputed to an infant.' 
 
 Under the Summary Jurisdiction Act, 1879,' a " child," that 
 is, an infant under twelve, if summarily convicted of any of the 
 offences specified in the first schedule of the Act, may be sent to 
 prison for any period not exceeding a month, or be fined an 
 amount not exceeding forty shillings.' A " young person," that 
 is, an infant between twelve and sixteen, may on like conviction 
 be sent to prison for a term not exceeding three months, or fined 
 an amount not exceeding £10.^° Both "children" and "young 
 persons " may be privately whipped. 
 
 A child under fourteen years of age who comes within section 
 14 of 29 & 30 Vict. c. 118, may be sent to an industrial 
 school until it reaches the age of sixteen," And a child under 
 sixteen, if convicted either summarily or on an indictment of an 
 offence punishable with penal servitude or imprisonment, and is 
 sentenced to be imprisoned for a term of ten days or more, may 
 
 1 See Beg t. WilUams, [1893] i Q. B. 320. „ „ ■„ o 
 
 ^ Hen . . Phillips, 8 C. & P. 736 ; Sex v. Groomhridge, 7 C. & P. 582. 
 
 3 Seg V Wuite [1892] 2 Q. B. 600. ■• Meg. v. Williams (ubi sup.). 
 
 5 /I'co. V. jUflcdOTioW, IS Q. B. D. 323. 6 4BI. Com. 24n. 
 
 ^ Macph Inf 451 Fur a mere non-repair of a road or bridge an mtant does not 
 seem to be criminally liable by way of indictment. If he had a guardian m_ socage or 
 other person in occupation of the land in question, who was in possession ot tie 
 receipts and profits, the guardian or other person in possession would be criminaUy 
 « fn,- the nnn-reoair. ^ ,2 & .3 Vict, .. 49- " Sect. 10, sub-sect. I. 
 
 liable for the non-repair 
 " Sect. II, sub-sect. i. 
 
 42&43 
 ■ Sect. 18. 
 
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CHAP. I.] CAPACITIES, DISABILITIES, IMMUNITIES. 717 
 
 be sent, at the expiration of his period of imprisonment, to a 
 certified reformatory school to be detained for a period of not less 
 than two nor more than five years.' 
 
 There is no fixed age or limit for the reception of the evidence Evidence of 
 of infants ; their competency as witnesses is based upon under- competency 
 standing and not upon age. Their evidence will be received if based^unon 
 the presiding judge is satisfied that they understand the nature understanding 
 of an oath, or that' punishment will follow on their telling a lie. age. 
 Thus, if a child under seven seems to understand the nature of 
 an oath, and to have received a just impression of the facts to 
 which he is deposing, and to be relating them truly, then his 
 evidence ought not to be rejected.^ In Brasier's Case,^ which was 
 on an indictment for assaulting with intent to ravish an infant 
 about five years old, all the judges held that she might have 
 been examined on oath, if on strict examination she had been 
 found to comprehend the danger and impiety of falsehood. But 
 the dying declarations of a child only four years old were rejected 
 on the ground that however precocious her mind might have been, 
 it was quite impossible that she could have had sufficient under- 
 standing to render her declarations admissible.* 
 
 The evidence must be given upon oath.^ Under two recent Evidence must 
 statutes young persons who are deemed too young to take an ^ "^°° °* ' 
 
 , J o f J6 Exceptions. 
 
 oath, but not too young to know the duty oi speaking the truth, 
 may give evidence, in the case of girls for offences against them 
 under the Criminal Law Amendment Act, 1885;'' and young Criminal Law 
 children generally for offences committed against them under the Act, 1885. 
 Prevention of Cruelty to Children Act, 1894,' but not on oath. Prevention of 
 Such evidence must be corroborated by some other material OMMren°Act, 
 evidence in support of the charge,* and must be confined to ^^9+- 
 offences created by the Acts." 
 
 A point that awaits judicial decision is whether an infant of 
 tender years can make a declaration instead of taking the oath. 
 The infant might claim himself to declare, or it might be claimed 
 for him by his parent or guardian, on the ground that he belonged 
 to a religious community the members of which objected to take 
 an oath, or on the ground that he had no religious belief at all, or 
 
 1 29 & 30 Vict. 0. 117, s. 14. 
 
 ^ See Indian Evidence Act, 1872, sect. n8, which enacts that "all persons shall 
 be competent to testify unless the Court considers that they are prevented from under- 
 standing the questions put to them, or fi'om giving rational answers to their questions 
 by tender years," &c. 3 I East, P. C. 443 ; S. C. B. N. P. 293. 
 
 ■* Bex V. Pike, 3 C. & P. 598. ^ Rex v. Brasier [uhi sup.). 
 
 6 48 & 49 Vict. c. 69, 8. 4. ' 57 & 58 Vict. c. 41, s. 15. 
 
 8 Oddly enough, under the earlier Act the young girl is liable to be punished for 
 perjury, and under the later Act the young person is liable to the punishment 
 provided by sect. 11 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49). 
 
 3 Beg. V. Paul, 25 Q. B. D. 202. 
 
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718 INFANTS. [part it. 
 
 his evidence might be objected to on the latter ground. The 
 difficulty is whether a child of so tender an age could properly 
 be said to have any fixed idea one way or the other. Mr. Justice 
 Stephen was of opinion that the infant's evidence or declaration 
 ought to be received, if he evinced proof of understanding the 
 necessity of telling the truth, and was capable of speaking truly to 
 the facts to which he was called to depose ; ^ and he omitted want 
 of religious belief in a child as a ground of incompetency ; " and 
 -held that section 4 of the Evidence Amendment Act, 1869,* 
 applied a fortiori to a child who had received no instructions in a 
 religious faith at all. 
 
 As to what weight should be given to the evidence of children, 
 it has been observed, " that when the evidence of children is 
 admitted, it is much to be wished, in order to render the evidence 
 credible, that there should be some concurrent testimony of time, 
 place, and circumstances, in order to make out the fact; and that 
 a conviction should not be grounded on the unsupported accusa- 
 tion of an infant under years of discretion."^ But this objec- 
 tion has been met by a writer on evidence,* who has said that 
 " independently of the sanction of an oath, the testimony of 
 children, after they have been subjected to cross-examination, is 
 often entitled to as much credit as that of grown persons ; and 
 what is wanted in the perfection of the intellectual faculties, is 
 sometimes more than compensated by the absence of motives to 
 deceive." 
 Infant may An infant is capable of taking an estate by descent or pur- 
 
 de^enTor^''^ chase ; and where an estate vests in him by operation of law, 
 purcLcse. ^^^ ^^ ^^^^ ^^^ disclaim, he is liable for rent, notwithstanding 
 infancy ; ^ copyholds may be surrendered to his use, and he 
 may be admitted to them.' He may, it is said, do homage but 
 not fealty,' but that he cannot perform grand serjeanty at the 
 coronation.' And generally, he may do as completely and 
 irrevocably as a person of full age any right and lawful act which 
 he is compellable by any means or in any way to do, albeit he 
 doth it without suit of law.'" 
 
 1 Digest of the Law of Evidence, note xli. p. 168. yUd Art^ 107, p. 1 10. 
 
 3 77 & ^■:! Yict c. 68. By this section a person objecting to take the oath, or 
 obiected to as incompetent to take an oath, may be aUo^ved to make a declaration, but 
 ob]ectea to as moom, ^^.^^^ ^^ ^^^ j^^^, ^^^^^^^ of Best on 
 
 LS (7th editltoHplSou that. hi' section does not apply to the case of a 
 young child and it seems on good grounds ^^ ^^^^^^^ ^ 
 
 e a v°"co:^-S Ir. Kep^ C L. ,6,. ^ Macph- la, 455. 
 
 = Co. Lit. 65 h. ' IM. 107 6. J^bid. 172 a. 
 
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CHAPTER II. 
 
 ACTS AND CONTRACTS OF INFANTS. 
 
 PACE 
 
 Infancy a Personal Peivilegb onlt 720 
 
 Classification of Acts and Conteacts of Infants . . 721 
 
 Distinction between Void and Voidable . . . . 721 
 
 Distinction between Acts and Conteacts . . . 723, 
 
 Acts of Infants 724 
 
 Void Acts : Disadvantageous, and Tending to Dis- 
 advantage OF Infant 725 
 
 Valid Acts 726 
 
 Voidable Acts : Gbants 726 
 
 Binding Acts 727 
 
 Infant Bound by Condition Annexed to Peopebty, 
 
 WHEN 72S 
 
 Judgment in Law and Dbceee in Equity Binding 
 
 UNTIL set aside 728 
 
 Tbustbb Act, 1850 729 
 
 Paeol Dbmueeee 729 
 
 Day to Show Cause 730 
 
 Day allowed in a Foeeclosuee Suit against 
 
 Infant who has not the Legal Estate . . 730 
 
 When Infant bound by Statute . . . . 731 
 
 Execution op Powees 731 
 
 Contracts of Infants — Few Conteacts Foembely Abso- 
 lutely Void 732 
 
 Infant may Enfoecb Conteacts against Adult, but 
 
 NOT BY Specific Peefoemance .... 733. 
 
 When Infant Bound 734 
 
 Void Conteacts— those Cleaely to the Pebjudicb of 
 
 Infant 734 
 
 Infants' Eblief Act, 1874 735 
 
 Effect of Act 735 
 
 Infant cannot be Adjudicated Bankrupt . . . 736 
 Infant cannot present Petition to Adjudicate his 
 
 Debtor a Bankrupt 737 
 
 Valid Conteacts : Voidable — those Connected with 
 Peopeety of a Pbemanbnt and Continuing 
 
 Natuee ... ... . . 737 
 
 Leases .... 73^ 
 
 moetgagbs . . . • 739 
 
 Conteacts op a Pbemanent Nature— Partnership . 740 
 
 Shaebholding 741 
 
 Teansfbes— Company a Going Concern . . . 742 
 
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720 INFANTS. 
 
 [part IV. 
 
 PAGE 
 
 Company being Wound up, Eppect op . . . 743 
 
 Teading -.. 
 
 Binding Conteacts— Maeeiage Conteact .... 744 
 
 CONTEACTS FOE NECESSAEIES 745 
 
 Questions as to Necessaeies involve Law and 
 
 Fact .... 746 
 
 What are Necessaeies 748 
 
 What aee Non-Necessabies 749 
 
 Infant aieeady Supplied with Necbssaey 
 
 Aeticles 750 
 
 Inpant Living with Paeent oe Guaedian . . 751 
 Conteacts op Seevice — Geounds foe making them Bind- 
 
 I^'G 752 
 
 Infant not Bound by Inequitable Conteact . . 753 
 Conteact of Seevice Peima Facie Beneficial . . 754 
 Test whethee Deed of Appeenticeship Binding oe not 754 
 To WHOM Infant may be Bound Appeentice . . 755 
 Infants on Majoeity may Ratify oe Disaffiem Con- 
 teact . 756 
 
 Enlistment op Infants 756 
 
 Liability of Infant foe Toets 757 
 
 Infancy per- A>' infant is a special favourite of the law whose aegis has been 
 fegeonly" cast about him to protect him from the harm which his own 
 immature judgment, or the designs of unscrapulous men, might 
 bring about. Infancy is a personal privilege, and is used for the 
 purpose of protecting the minor, therefore the incidents arising 
 out of infancy are peculiar to the infant, and cannot be taken 
 advantage of except by the infant or his representatives ; thus, if 
 any person of full age enter into an agreement with an infant, he 
 is bound thereby, despite the want of reciprocal responsibility, 
 and it is only at the option of the infant or his representatives 
 to avoid it ; ' so, a third person not a party to the contract, 
 cannot take advantage of the infancy of one of the contracting 
 parties to avoid it, unless it be void in its inception ; ^ thus, an 
 infant is not bound by recitals of a deed made during infancy,^ 
 or by a proviso in a deed to which he was not a party, though 
 Must not be taking benefits under it.^ This personal protection is to be 
 fOT fraud.*"** used as a shield, and not as a sword ; therefore, where the infant 
 has been guilty of fraudulent misrepresentation as to his age, 
 which has deceived the party dealing with him, he may be bound 
 in equity by his act or contract. 
 
 The benefit of the infant is the only object which the law has 
 in view : it therefore permits him to ratify or avoid certain con- 
 tracts which may be beneficial to him, or declares void those 
 which it deems to bo prejudicial to him, and will even bind him 
 
 1 Coan V. Boirhs, I Show. 171. ' Keane v. Boycott, 2 H. Bl. 511. 
 
 3 Per Eldon, C, in Miliier t. Lord Harewood, 18 Ves. 259, 274. 
 -" Cajies V. HuttoK, 2 Russ. 357. 
 
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CHAP. ii.J ACTS AND CONTRACTS OF INFANTS. 721 
 
 in respect of those contracts which it is an advantage to him that 
 he should be able to make, such as contracts for the necessaries 
 of life. 
 
 There is a difficulty to be met with at the very threshold of oiassifioation 
 the discussion of the acts and contracts of infants, that of classify- contracts of 
 ing them. There has been much diversity of opinion both among ™f™ts. 
 judges and text- writers as to whether the acts and contracts of 
 infants should be classified at common law as void, voidable, and 
 valid, or as void and valid. The modern tendency, as evidenced by 
 judicial decisions and the opinions of text- writers, is to regard 
 them as void or valid only ; and this seems to be the more accurate 
 opinion. The text- writers who support this view are Addison, 
 Sir F. Pollock, Sir William Anson, and Hilliard (American) ; 
 those who favour the threefold division are Comyn, Rolle, Bingham, 
 Simpson,, Story, and Schouler (American).^ 
 
 There is no doubt that much difficulty and apparent incon- 
 sistency has arisen from the loose way in which the word " void " 
 has been used both by the judges and text- writers ; " it has been 
 used in a sense equivalent to " voidable," or under circumstances 
 which show that the judicial decision went no further than to 
 declare that the contract in question could not be enforced against 
 the infant. 
 
 There is a wide distinction between an act or contract which Distinction 
 is void and one that is voidable. That which is void is incapable terms^^void " 
 of being enforced or ratified ; it is of no effect from the moment *?? "void- 
 of its inception, not only as regards the infant, but also the adult 
 contracting party; in short, it is a nullity : that which is voidable 
 is perfectly valid untU set aside by the person who has the right 
 or option to set it aside. Bingham'' thus distinguishes between 
 void and voidable : " Acts which are capable of being legally 
 ratified are voidable only ; acts which are incapable of being legally 
 ratified are void." This distinction does not really remove the 
 difficulty, for the question still remains, what contracts are void 
 and what are voidable. Eyre, O.J.'' thus states the matter : 
 " The conclusion is, that for those things which the Court can 
 pronounce to be necessary for the infant, he may bind himself 
 
 even by deed We have seen that some contracts of infants 
 
 even by deed shall bind them. Some are merely void, viz,, such 
 
 ^ Dom. Kel. ss. 406-7. This writer admits that the tendency of opinion in the 
 United States is towards the twofold division ; and he gives many examples of acts 
 and contracts which are there voidable, which in England are held to be altogether 
 void and incapable of ratification. 
 
 ^ Sir P. Pollock (Contracts, 53) has pointed out that even in Acts of Parliament it 
 has been used as a term convertible with "voidable." See Magdalen Hospital v. 
 Knotts. 4 App. Cas. 324. 
 
 ^ Inf. 234. ^ In Keane v. Boycott, 2 H. Bl. 511, 514. 
 
 2 Z 
 
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INFANTS. 
 
 [PAKT IV, 
 
 'Void" in 
 manT cases 
 means '-net 
 enforceable 
 against" the 
 infant. 
 
 as the Court can pronounce to be to their prejudice. Others, and 
 the most numerous class, of a more uncertain nature as to benefit 
 or prejudice, are voidable only, and it is in the election of the infant 
 to aflBrm them or not." This, in truth, does not accurately ezpress 
 the distinction required, for bearing in mind that " void " means 
 that which is null and of no effect as regards both parties, a con- 
 tract which might primA facie appear to the prejudice of the 
 infant might really be to his advantage, and consequently it 
 wonld be open to the adult contracting party at any time after 
 its inception to treat it as of no effect, and the infant never could 
 enforce it, though on attaining majority he might have found it 
 worth his while to treat it as a valid subsisting contract. I'his 
 dictum of Chief Justice Eyre, moreover, fails to express the true 
 state of the law ; for, as there was no impediment in the way of an 
 infant (at any rate nntil quite recently) ratifying on attaining, 
 majority a contract which was clearly to his prejudice, and which 
 when ratified was binding on him, it therefore follows that con- 
 tracts were not rendered void merely by reason of their being 
 prejudicial to the interests of infants. That which was capable 
 of being legally ratified mnst have had some, legal existence ; i£ 
 it had not the ratification would have been ineffectual.' The 
 true solution of the difficulty is, that the word void must be taken 
 to mean in many cases no more than " riot enforceable against the 
 infant." If this were not so, a contract of service clearly to the 
 infant's detriment, as imposing harsh terms on him, would entitle 
 the master of the infant servant to determine at any time their 
 engagement, and to refuse to pay any wages for the services 
 already rendered ;^ and this wonld be more to the infant's 
 harm than to hold it as a valid contract, yet one which the infant 
 might determine at his option. 
 
 There are two cases which show the convertibility of the two 
 terms. In Thomion v. Blingworth^ it was held by Bayley, J., 
 that an infant's contract to buy goods for the purposes of trade 
 was void ; but in Wanrkk v. Bruce both the Court of King's 
 Bench' and the Exchequer Chamber' held that in general 
 the contract of an infant was not void, but that he might avoid 
 it or not at his option.' The point to be decided in the first 
 case was whether a promise made after the commencement of an 
 
 1 An absolutely void act of an infant at common law is his warrant of attorney ! 
 now if, on attaining his majority, the infant goes through the form of ^^^^^^Sj^\^f' 
 such ratification wonld be ine£Fectnal, and both he and his representatives could treat 
 the ratification and matters incident thereto as null and void. m~r,ntrirh 
 
 - See Heg . Lord, 17 L. J. M. C. 181 ; but compare it with Leslie v. Fitzpatrich, 
 ^ Q B. D. 229. See post, p. 733- , ■* 2 B. & C. 824. 
 
 J 2 M & S 20s ^6 Taunt. 1 18, sub nam. Bi-nce v. Warwich 
 
 6 See the remarks of Mr. Benjamin on these two cases; Beuj. Sales, 29. 
 
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CHAP. 11.] ACTS AND CONTRACTS OF INFANTS. 723 
 
 action was sufficient to sustain a replication that the defendant 
 (who had pleaded infancy) ratified his contract after he had come 
 of age, and it was held in the negative. Bay ley, J., however, 
 went on to say that " if he (the infant) makes a promise after he 
 comes of age, that binds him, on the ground of his taking upon i 
 himself a new liability upon a moral consideration existing before." 
 This dictum appears to be open to the objection that a contract 
 which is absolutely void cannot be ratified so as to form a con- 
 sideration, whether moral or legal, upon which a promise to pay 
 can be maintained. Sir W. Anson's ' opinion appears to be 
 more consistent with the general tendency of the decisions on 
 the subject, when he says that an infant's ratification is one of a 
 limited class of cases in which a past consideration has been 
 allowed to support a subsequent promise. From a- comparison 
 of the two cases above cited, it is difficult to avoid the conclu- 
 sion that a contract has been judicially held to be void, which, 
 in reality, was one that was only voidable at the option of the 
 infant. 
 
 There seems to be authority for holding that there is a valid Distinction be- 
 distinction between what might be called the acts of an infant conteacto o f*"^ 
 (as distinguished from mere agreements) and his contracts or lofa^^ts- 
 agreements. Many acts of an infant were per se void and invalid 
 irrespectively of any prejudice which might result to him from 
 them. Again, certain deeds were only voidable if they were 
 solemnly carried out, or were to his manifest advantage, but void 
 if they were not so solemnly carried out, or were to his prejudice. 
 It has been shown that the modern tendency was to regard a 
 few contracts of infants as void by operation of some rule of law 
 or equity, and the majority of their agreements as valid, and 
 only to be set aside at their option, or that of their representa- 
 tives in blood or estate, on proof of prejudice. But the Infants' infants' Eeiiei 
 Belief Act, 1874,^ has rendered a large number of contracts ' 
 formerly valid absolutely void and incapable of ratification, thus 
 taking away the power of exercising his option of avoiding or 
 ratifying which the infant undoubtedly possessed. It is possible 
 to hold that the effect of the statute is so sweeping as to render 
 every contract by an infant which is not specially excepted by 
 the Act null and void. It has not been yet so judicially decided ; 
 and recent writers on the subject of contracts treat it as not 
 being intended to have that operation, but hold that infants 
 may yet enter into certain contracts which are not absolutely 
 void, but which on attaining their majority they may avoid or 
 affirm. Effect to that opinion is given in this and the subse- 
 1 Cont. 107. 2 27 & jg yjgf g_ g2 
 
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72-i INFANTS. [PAET IV. 
 
 quent chapters. The division or classification here followed of the 
 infant's acts and contracts is into (i) Void, and (2) Valid. 
 Acts of Ads of Infants. — Certain acts of an infant were void or valid 
 
 according as they were carried out with due and proper solemnity, 
 Rnie in Or were wanting in snch solemnity. Perkins ' lays it down that 
 
 " ■ " all snch gifts, grants, deeds made by an infant as do not take 
 
 eflfect by delivery of his hand are void ; but all gifts, grants, or 
 deeds made by an infant by matter in deed or writing, which 
 take eJBFect by delivery of his own hand, are voidable by himself, 
 his heirs, and those who have his estate." In Zouch v. Parsons'' 
 the foregoing rule was approved, and in effect it was held that 
 where the delivery of the infant's deed amounted to the livery 
 of seisin, and operated as the conveyance of an interest, it was 
 merely voidable, but when it did not take effect as an assurance 
 by delivery of the hand, but required an additional ceremony, as 
 in a power of attorney, it was then actually void. Comyn ' con- 
 siders it possible to gather from this case that " the true ground 
 why an infant's deed is only voidable, is the solemnity of the 
 delivery." But Lord Mansfield, who delivered the judgment of 
 the Court, added : * " But be the point upon the solemnity of the 
 ddivcry as it may (for there are respectable sayings the other 
 way), it is not necessary to our determination. For we are all of 
 opinion that the £iog received, and the other circumstances of 
 the transaction, show a semblance of benefit suflScient to make it 
 voidable only, upon the matter of the conveyance." This case 
 was approved by Lord Eldon,* and Lord St. Leonards,' who up- 
 A deed that held as sound law that a deed which takes effect by delivery, and 
 dSfvV^'^nd'' is executed by an infant, is voidable only; but he added,^ |'If I 
 is not to the ^^ ^^ ^^^ ujy decision on the ground of the benefit arising to 
 is vUid. *™' the infant fi-om the deed, there is not only such a semblance of 
 benefit, but so much real benefit conferred upon the infant as to 
 bring the case within the branch of the rule laid down by Lord 
 Mansfield in Zouch v. Parsons." ' It is true that Comyns says,' 
 " Generally, every deed by an infant, as a grant of rent charge, 
 annuity, &c., is void ; " but his authorities, Perkins '° and Thomp- 
 son V. Leach," do not support his statement, for Perkins himself 
 lays it down that "a grantor cannot against such a deed in 
 pleading say that he did not grant by the deed, for the deed was 
 not void, but voidable ; " '^ and the case of Thompson v. Leach 
 
 I Sect 12 = 3 Bun-. 1794. ^ Dig. Enf. C. 3. 
 
 4 p 1808 ^ 1° ^- Bavdcock, 17 Ves. 383. 
 
 : ^ ^"^"' ^ ^^- ^^.■&. .. ^« s;c^t^;3. " 3 Mod 3:0 . 
 
 >^ Bv thfrules of pleadin|, the plea to a v^d ^^^X- tt{^Z^ ^V^i^<. 
 not a plea nnder which an infant can give evidence of his infancy ; but it must be 
 pkaded specially, WhelpcUde'i Case, 5 Eep. 119; Zov<:hy. Parsons {nit sup.). 
 
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CHAP. II.] ACTS AND CONTEACTS OF INFANTS. 
 
 ,1^0 
 
 above cited, was that of a person non compos, therefore observa- 
 tions in it as to infants' deeds were mere obiter dicta. 
 
 But Coke himself has it ' that an infant may make a purchase 
 of land which is voidable only, for "it is intended for his 
 benefit, and at his full age he may either agree thereunto and 
 perfect it, or, without any cause to be alleged, waive or disagree 
 to the purchase." It has been laid down that " all instruments 
 and acts of an infant are voidable only, except those which are 
 necessarily to his prejudice, these last being void." ^ Those acts 
 and deeds which are either by rule of law ineffectual, or can be 
 pronounced by the Court to be to the manifest prejudice of the 
 infant are void, and to be set aside by them or his representatives. 
 
 Void Acts. — A conveyance of his property to his guardian ; ' a Void acts. 
 release of his trustee who has handed over only a part of the Disadvan- 
 trust funds ; * an appointment of an agent '" (a lease by an agent tending to dis- 
 so appointed is void, and the infant may bring an action of f^^*°**^® °* 
 ejectment without any notice to quit ; ^ an appointment or 
 warrant of attorney, but to this an exception has recently been 
 made by the Conveyancing and Law of Property Act, 1 8 8 1 ,' in 
 the case of married women ; the Act provides that " a married 
 woman, whether an infant or not, shall by virtue of this Act 
 have power, as if she were unmarried and of full age, by deed, 
 to appoint an attorney on her behalf for the purpose of executing 
 any deed or doing any other act which she might herself execute 
 or do ; and the provisions of this Act relating to instruments 
 creating powers of attorney shall apply thereto. This section 
 applies only to deeds executed after the commencement of this 
 Act." Submission to a reference by attorney,^ or his cognovit ; ' 
 a bond with a penalty and for payment of interest, though it has 
 been given for necessaries ; such a bond is held void, as it is 
 clearly not for the infant's benefit.'" An infant cannot give a 
 valid receipt," unless the instrument of donation specially pro- 
 vides that his receipt shall be a discharge.'" But an infant, who 
 is also a married woman, may, by the provisions of the Convey- 
 
 I Litt. 2 6. 
 
 ^ Simp. Inf., p. 9- Here the word " void " means no more than " unenforceable 
 against." See p. 722, for an infant on attaining majority might afiBrm a contract 
 which on the whole was prejudicial to him. 
 
 3 Bac. Abr. Inf I, 3 ; I EoU. Abr. 728. 
 
 * Overton v. Bannister, 3 Ha. 503. ^ Doe v. Roberts, 16 M. & W. 778. 
 
 s Ibid. '■ 44 & 45 Vict. c. 41, s. 40. ^ Biddle v. Dowse, 6 B. & C. 255. 
 
 9 Oliver v. Woodroffe, 4 M. & W. 650. In this case Lord Abinger said : " The 
 general principle of law is that a minor is not to be allowed to do anything to prejudice 
 himself or his rights." 
 
 ^'' Baylis v. Dineley, 3 M. & S. 477 ; Ex parte The Unity Joint-Stock Mutual 
 Banldng Assodatiov, Be King, 27 L. J. Bk. 33. 
 
 II See Stott V. Meanock, 31 L. J. Ch. ^46. For the payment of small sums into a 
 post-office savings bank to the credit of an infant, see Mliott v. Elliott, 54 L. J. Ch. 
 1 142. '^ 4 Dav. Prec. 73. 
 
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Valid acts. 
 
 Yoidable. 
 
 726 INFANTS. [part iv. 
 
 ancing and Law of Property Act, 1881,' give a valid receipt to 
 her trustees of the income of the trust funds paid to her by them. 
 A bond executed by an infant as a surety has been held void in 
 America.^ An account stated, even for necessaries ; this was 
 formerly a voidable act on the part of the infant/ but by the 
 Infants' Eelief Act, 1874/ it is expressly rendered absolutely 
 void. A bill of exchange, whether drawn or accepted, or 
 endorsed by an infant, or a promissory note made by him, is, 
 since the Act of 1874, void,* even where it was accepted for the 
 price of necessaries.* Previously to that Act his acceptance 
 might have been ratified on his attaining majority. It seems, 
 however, that the infant may be bound in certain circumstances, 
 if guilty of express fraudulent misrepresentation, by which the 
 other party is deceived.' But his mere trading as an adult is 
 insufficient to render him liable for trade debts.' Though the 
 infant is not bound, he may yet bring an action on the bill or 
 note.' In an action against the acceptor in which infancy is the 
 defence, the acceptor is bound to prove that he accepted the bill 
 when an infant.'" An acceptance is binding if given when the 
 acceptor was an adult, though the bill was drawn while he was 
 an infant." An infant's void deeds or conveyances may be 
 set aside during his minority, and it is not necessary to wait till 
 he has attained his majority to treat them as null and void. 
 
 All acts and instruments of a solemn nature which are not to 
 an infant's prejudice are valid and binding until set aside by him 
 on attaining majority. The term valid includes voidable, for an 
 infant may avoid all acts done by him during infancy, except 
 such as are binding on him by legislative sanction, or by order of 
 a Court of competent jurisdiction. It has been seen that the 
 true test of the validity of an infant's deed is the advantage or 
 absence of prejudice to be derived from it, and that though valid, 
 it is yet voidable at his option on attaining majority; but those 
 persons affected by his acts have not the same privilege. The 
 arrangement here followed will be set out — first, those acts 
 which are voidable at the infant's election; next, those which 
 are absolutely binding on him. 
 
 The deeds of infants are, as a rule, voidable f so, too, grants, 
 
 1 44 & 45 Vict. c. 41, s. 42, sab-s. 5 [ii.]. 
 
 2 Sch. Dom. Eel. s. 404, and tbe cases there cited. „ „ ^^. 
 
 3 WaUmns V. Moor, 12 L. J. Ex. 253. ■* 37 & 38 Vict. .. 62, s. i. 
 s Ex parte Kibble, Me Onsloio, L. E. 10 Ch. App. 373- 
 
 6 Be SoUykoff, Exparte Margrett, [1891] i Q. B. 413. 
 
 ' See Exparte Jones, Be Jones, 18 Cb. D. 109. , -r> ;> n cm 
 
 » JJiUer /.Blanhleii, 38 L. T. 527. » HaUiday v. Atkinson, 5 B. & C. 501. 
 
 >» MoberU v. Betltd'l, 22 L. J. 0. P. 69. 
 
 " Ibid.; Stevens v. Jackson, 4 Camp. 164. 
 
 1^ JIartm v. Gale, 4 Ch. D. 428. 
 
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<3HAP. 11.] ACTS AND CONTRACTS OF INFANTS. 727 
 
 whether of corporeal or incorporeal hereditaments, and assign- 
 ments. Thus, his feoffment is voidable,' or his surrender in 
 ordinary cases. ^ But a free and voluntary gift by him of personal 
 chattels would seem to be good and effectual.^ 
 
 There are certain acts which when done by an infant not only Binding acts. 
 are valid, but are binding upon him; it will be seen that they Acts which do 
 
 1-1 «. 1 • • 1 • , ■' not touch 
 
 are such as do not affect his material interests, or are such as infant's in- 
 acquire their binding force from the statutory intervention of the ^'^^^ ^' 
 Court of Chancery, whose enlarged jurisdiction was required by 
 the necessities of commerce and social relations ; or such as the 
 justice of the case required should bind him. The acts of an 
 infant which do not touch his interests, but take effect from the 
 authority which he is trusted to exercise, are binding ; ' thus, an 
 infant officer may perform the duty of the office which he may 
 hold, as where an infant patron presents or nominates to a benefice ; 
 and no public inconvenience can arise from his presentation or 
 nomination, since the bishop is to judge of the qualification of the 
 •clerk presented.* 
 
 That which an infant is bound to do he can validly do. In What infant 
 the case of Zouch v. Parsons " the question arose whether a lease ^e can validly 
 and release executed by an infant was binding on him. Lord *°- 
 Mansfield held under the circumstances of that case that it was, 
 because, among other reasons, as the infant had only done what 
 the Court of Chancery would have compelled him to do, his 
 conveyance was actually binding on him. An infant not only 
 can inherit, but he cannot disclaim the inheritance as the lieres 
 under the Roman law system was permitted to do ; ' if, on the 
 contrary, he purchase an estate, he can repudiate his bargain. 
 He may take or accept by will, purchase, or surrender, but he is 
 not bound to take property if it would be to his disadvantage. 
 An infant may accept a grant, but he can avoid it at majority.^ 
 An infant by custom may make a feoffment of his gavelkind land 
 at the age of fifteen." If he take an estate he is liable to pay 
 the rent and perform the services, but he is not liable to pay 
 more than he actually receives as profits from the estate.'" He 
 is liable for a customary fine of copyhold if he occupy," for 
 assessment of county rates, &c.,'^ or any obligation imposed by 
 tenure, as the repair of a bridge, if he be in actual receipt 
 
 ^ Whittingham's Case, 8 Eep. 43 ; Co. Litt. 337 I. 
 ^ Zoibch V. Parsons, 3 Burr. 1794. 
 
 ^ See Taylor v. Johnston, 19 Ch. T>. 603. ■* Ibid. 
 
 " Co. Litt. 246 a ; Eearle v. Greenhanh, 3 Atk. 695, 710. ^ Dbi sup. 
 
 ^ Co. Litt. 191 a. n. s jud^ 2 h, 350 6 ; Bao. Abr. luf. 
 
 » 2 Dav. Conv. 221. i" Ee Fair, 13 Ir. Eep. Eq. 278. 
 
 " Evelyn v. Chichester, 3 Burr. 1717. In this case he had occupied for two years 
 after attaining majority. ^^ 2 Inst. 703. 
 
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728 
 
 INFANTS. 
 
 [PAUT IV. 
 
 Infant bound 
 by conditions 
 annexed to 
 property. 
 
 Doctrine of 
 election 
 applies to 
 infants. 
 
 Judgment in 
 law binding 
 until set aside, 
 
 of the rent and profits.' An infant takes subject to any 
 contract by the person through whom he claims respecting 
 the estate, as mortgage, contract for sale/ or lease ;' and he is 
 bound by a trust for the conversion of the property, real or per- 
 sonal, that he takes, though absolutely entitled to it.' 
 
 An infant is bound by certain conditions imposed upon him ; 
 thus, if he take an estate he is bound by any condition annexed' 
 to It, and if he cannot perform the condition, he cannot take the 
 estate,* as where he takes an estate upon condition of paying 
 a sum of money which he is unable to pay ;= but where the con- 
 dition is to pay out of rents and profits, and by reason of infancy 
 he is not in possession of rents and profits, the condition will not 
 bind him till he comes into possession.' But he is not bound by 
 a condition on taking an estate which involves a course of conduct 
 on his part which may be overruled by those who have a legal 
 right to prescribe for him a particular course of conduct ; thus, 
 where he is devisee of an estate, the interest in which is to cease- 
 if the devisee refuses or neglects to reside in the mansion-house, 
 he is not bound by the condition, and so, if he does not reside in 
 the mansion-house, he cannot be said to refuse or neglect so to 
 do.* He is likewise bound by a condition to marry or not to 
 marry a particular person,' though he be unaware of the condition 
 on taking the property.'" Bonds given by infants under the 
 Customs Act are valid." 
 
 The doctrine of election applies to infants as well as to adults, 
 and an infant will be compelled to elect whether to take under 
 or against an instrument, and it is applicable alike to reaP" and 
 personal estate." The Court as a rule will direct an inquiry as 
 to how the infant's election should be made." 
 
 A judgment in law is binding on an infant until he has it set 
 aside by showing that he was an infant when it was obtained,"" 
 but a judgment obtained in an action by the infant's next friend 
 is binding on him, though he has never consented to the action 
 being brought." But he is not to suffer by negligence or want of 
 knowledge on the part of his next friend, and may impeach a decree 
 or judgment founded on error in the facts, without being required 
 to produce the usual evidence that the facts relied on were not 
 
 2 Bullock V. Bullock, i J. & W. 603. 
 * Van V. Barnett, 19 Ves. 102. 
 ^ Oundry t. Baynard, 2 Vern. 278. 
 
 1 Rex V. Sutton, 3 Ad. & El. 597. 
 
 3 Maddon v. White, 2 T. K. 159. 
 
 " Gary v. Gary, 2 Sch. & Let 173. 
 
 ? 8lade v. Tomsmi, 3 Bulst. 58. 
 
 8 Partridge v. Partridge, [1894] 1 Ch. 351. 
 " Gardiner v. blater, 25 Beav. 509. 
 i-^ Streatfield V. Streatfield, C&s. i. 'Mh. ll(>. 
 
 13 mrvij V. Deshouverie, ibid. 130. " Bennett v. Honldsworth, 6 Ch. D. 671. 
 w Henry v. Archibald, 5 Ir. Rep. Eq. 559. 
 16 Uurgan v. Thome, 7 M. & W. 400. 
 
 8 Gary v. Bertie, 2 Vera. 333. 
 11 39 & 40 Vict. c. 36. 
 
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CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 729 
 
 known and could not have been discovered with reasonable dili- 
 gence.' A decree or order in equity in his own suit is binding, Also decree 
 unless fraud, gross negligence, error, or new matter is shown, and eqid^ty! 
 he must apply within a reasonable time after attaining twenty- 
 one to set it aside.^ 
 
 Under , certain statutes the interests of infants are bound when 
 it is to their advantage, or the necessities of the case require that 
 they should be. The infant is, of course, legally incapable of 
 making a binding sale or disposition of his property, and the Court 
 of Chancery has no intrinsic power or jurisdiction to do that for 
 the infant which the law has declared him incapable of doing.^ It 
 has required the intervention of the Legislature to confer upon it 
 those powers, and within those alone can it act. 
 
 Thus, under the Trustee Act, 1850,'' where an infant is Trustee Act, 
 seised or possessed by way of mortgage or trust of any lands, the ^ ^°' 
 Court may make a vesting order of such lands ; and the order 
 shall have the same effect as if the infant trustee or mortgagee 
 had been of age, and had duly executed a conveyance or assign- 
 ment of the lands ; ^ or where an infant is entitled to any 
 contingent right in any lands upon trust or by way of mortgage, 
 the Court may make an order releasing the lands from such con- 
 tingent right ; ^ and a like vesting order will be made in the 
 case of infants possessed of stock upon trust.^ Again, under 
 15 & 16 Vict. c. 86, where an infant holds lands subject to the 
 debts of his ancestor or testator, the Court will enable him to 
 convey the lands for the purposes of sale, and the Court will 
 direct a sale rather than a foreclosure where it is clearly for the 
 infant's benefit.^ The infant cannot now show cause against the 
 decree or order made in his case. 
 
 Formerly when an infant was foreclosed, or had a sale directed Parol de- 
 against him, he was allowed to show cause against the decree. 
 The old expression for objecting to the decree was called " the 
 parol demurring ; " but this privilege was strictly confined to 
 infant heirs when sued on the specialty of their ancestors.' 
 Under that process the infant heir pleaded his infancy, and that 
 he ought not to answer till he was of age ; proceedings were then 
 
 1 Be Hogliton, L. E. 18 Bq. 573. 
 
 ^ Sheffield v. Duchess of Buckingham, I Atk. 629, 631 ; Oregorti v. Molesworth 
 3 Atk. 626 ; Be Hoghton {ubi sup.); see Moneypenny t. Dering, 33 L. T. 0. S. 159. 
 
 " Calvert v. Godfrey, 9 Beav. 97 ; Field v. Moore, 25 L. J. Ch. 66. 
 
 4 13 & 14 Vict. c. 60. 5 Sect. 7. s Sect. 8. 
 
 !■ IS & 16 Vict. c. 55, 8. 3. 3 Sect. 55. 
 
 8 Flasket v. lieeby, 4 East, 485, in which case it was held that an infant devisee 
 sued by a specialty creditor of his ancestor could not pray the parol to demur by reason 
 of his non-age. This privilege was at first confined to infant'heirs in chivalry, but was 
 subsequently extended to all heirs by descent, and so became their common law 
 privilege. 
 
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730 
 
 INFANTS. 
 
 [part IV. 
 
 Day to show 
 cause. 
 
 Day aUowed 
 in a foreclosure 
 snit against 
 infant who 
 has not the 
 legal estate. 
 
 stopped till he attained his majority. This was abolished by 
 1 1 Geo. IV. & I Wm. IV. c. 47, s. 10. This section was thought 
 to have deprived the infant of his right to show cause against the 
 decree on reaching majority ; but it has been decided that it did 
 not in all cases have that effect.' 
 
 This day for showing cause was held to be the infant's privi- 
 lege only where he was bound to make a conveyance of the legal 
 estate, as in the case of an equitable mortgage f that is, where 
 the decree required some act to be performed by the infant, such 
 as the execution of a conveyance in a suit for foreclosure of an 
 equitable mortgage, then a day to show cause was allowed him ;^ 
 but when the legal estate was in the mortgagee (as in the case of 
 a legal mortgage), it has been held that the infant was not so 
 entitled to it, because no conveyance was required of the infant 
 mortgagor.* 
 
 It has been stated that "the Trustee Act of 1850 puts the 
 
 infant heir or devisee of the right of redemption of an equitable 
 
 mortgage in the same position in this respect as if the mortgage 
 
 were legal ; for it enables the Court to make the conveyance, and 
 
 thereby to complete the mortgagee's title without waiting for the 
 
 infant's majority. His whole right, both legal and equitable, can 
 
 now be bound by the decree and order of the Court, and the 
 
 right to the day to show cause should cease with the reason upon 
 
 which it was founded." = . However, in the light of more recent 
 
 cases, this statement can hardly be said to be a complete exposition 
 
 of the law ; and in the case of a foreclosure suit, whether the legal 
 
 estate be or be not vested in the infant, the usual practice is still 
 
 to insert in the judgment a clause allowing him to show cause 
 
 six months after he comes of age, against the judgment, unless he 
 
 be a simple trustee.' The law on this point would seem to be as 
 
 follows : In a foreclosure suit, in the case both of a legal and 
 
 equitable mortgage, the ordinary form of judgment should give 
 
 the infant a day to show cause ; '' and where the mortgage is an 
 
 equitable one, should direct the infant to convey when he attams 
 
 1 Schohfidd V. SeaMd, y Sim. 669, 8 Sim. 470 ; Price v. Carver, 3 Myl. & Cr 
 157. In thk latl^r cas-^rd Cottenham held that the parol demumng, and givmg a 
 day to show cause, were not synonymous teriM. 
 
 ■^ Price V. Carver {uU sup.). ' ^fh ^.Trevanwn, 16 Sim, 181. 
 
 1 Clintmi V. Bernard, 6 Ir. Rep. Eq. 355 : ^l8^v^ ^ 
 
 •■> Fish Alort q86 ; see Foster v. Parker. 8 Oh. U. 147. i/™,„„ 
 
 e Dan." Ch P' 177; '^'-lefeld v. HeaJieM (^U sup.y,Jewhury v. 2larten, 
 16 L. T. 0. S. 482 ; Foster v. Parker (ithi sup.) ; bet. Dec. 831 
 
 from 
 
 Although in the 
 the infant is not 
 
 said'by Stuart, V.-C, in Bennett v. Barfoot (24 
 followed in practice, and has not been disbnctly overruled.' 
 Oray-^.Belf, 45^L.T.S2i 
 
 1 JMor V. Porter, 25 Ch. D. 158. 
 
 Coote, Mortg. 995 ; 
 
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CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 731 
 
 the age of twenty-one.' Bat where the mortgage is legal, when no day 
 because the legal estate is not in the infant, the Court may grant g^v^Ji"^ °*"^® 
 judgment for an immediate foreclosure against the infant, under 
 such circamstances as the following : Where the mortgagee 
 offers to pay the infant's costs as between solicitor and client, and 
 the infant's counsel does not seek to redeem ; where the infant's 
 guardian ad litem is of opinion that such order should be made, 
 and where the mortgage debt greatly exceeds the value of the 
 property." Where the jugdment against an infant is for an 
 immediate conveyance, section 30 of the Trustee Act, 1850, 
 should apply.' If a sale be directed instead of a foreclosure the when sale 
 infant has no day to show cause, because the mortgagee being a ^ay to show 
 creditor of the deceased mortgagor is entitled to ask the Court ''^"se. 
 to exercise the powers conferred by the Trustee Act, 1850, under 
 which the estate of the infant may be conveyed notwithstanding 
 infancy.* Where an infant plaintiff brings his action by his 
 guardian to redeem, and a day is given for that purpose, and 
 default is made in payment, and the action consequently dis- 
 missed, which is equivalent to a foreclosure, it does not seem 
 clear whether the infant will be bound, or will have six months 
 after he comes of age to show cause.'' 
 
 Where an infant has had a day given him to show cause writ of mb- 
 against the judgment,-a writ of snbpceim calling upon him to show ^^^gg_*° ^ °^ 
 cause must be served upon him after he attains twenty-one, and 
 he must show cause within sis months. 
 
 Under the Lands Clauses Act, 1845," an infant may be bound Lands Ciausjs 
 by a conveyance of his land to a railway company, or other public °*' ^^'^^' 
 undertaking.^ 
 
 By the Partition Act, 1868,^ the Court may under certain Partition Act, 
 specified circumstances direct a sale of an infant's property. So, ^ ' 
 too, by the Infants' Settlement Act, 1855,'' an infant may with infants' Settie- 
 the sanction of the Court make a valid and binding settlement of ^™ " ' 
 his or her real or personal estate in contemplation of marriage ;'" 
 and in various special cases, infants and their guardians are 
 enabled by statute to sell and convey land for purposes connected 
 with religion, charity, instruction, literature, science, and the fine 
 arts, or works of a public nature." 
 
 An infant may execute a power simply collateral, if he " is a Powers. 
 
 1 Mellor v. Farter {ubi sup. ). 
 
 ^ Wolverhampton and Staffordshire Banldng Co. v. George, 24 Ch. D. 707 ; 
 Tounge v. CocJcer, 32 W E. 359. 
 
 •' Younge v. Cocker [ubi sup.). ■• Dan. Ch. Pr. 177. 
 
 ' See Gregory v. Molesworth, 3 Atk. 625 ; Coote, Mortg. 997. 
 « 8 & 9 Vict. c. 18, 3. 17. ' Dan. Oh. Pr. 179, 
 
 8 31 & 32 Vict. c. 40. " 18 & 19 Viot. c. 43. 
 
 10 See post, chap. iv. Marriage Settlements of Infants. 
 1^ Dart. V. & P. 2, and the statutes there cited. 
 
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''"- ^ INFANTS. [P^^ii^. 
 
 mere conduit-pipe, as it has been termed, of the will of the donor 
 of the power, so that when the estate is created, the infant (as 
 was said in the case in Bridgman) is merely the instrument by 
 whose hands the testator or donor acts. The donor, it is said, 
 may use any hand, however weak, to carry out his intentions." ' 
 But an infant cannot be empowered, at least as against himself, 
 to contract for the sale of land, or to do any act which requires 
 an exercise of discretion, or would affect his own interests. An 
 infant in exercising a general power of appointment for the 
 purpose of making a settlement is enabled by the Infants' Settle- 
 ment Act, 1855,^ to make an absolute appointment, so that on 
 failure of the limitations of the settlement, the appointed pro- 
 perty will become his own, whether he dies under age or not.' 
 An infant may exercise a power which is only collateral over real 
 and personal estate ; a power in gross over personal but not real 
 property ; * but he cannot exercise at all a power appendant or 
 appurtenant.' 
 Contracts of Contracts of Infants. — The division or classification of contracts 
 
 will be the same as that of the acts of infants, that is, into (i) void, 
 and (2) valid. If those cases are put aside in which the term 
 " void " is clearly used as convertible with and equivalent to " void- 
 Few contracts able," there is much authority for saying that formerly very few 
 inteiy void." Contracts entered into by infants were void, but rather the majority 
 of them were voidable at his option. " The promise of an infant is, 
 generally speaking, absolutely xoid as against himself ; " ^ as for 
 instance, his executory promise can be rescinded by him at any 
 time before it is completed ; but the mere fact that a contract can 
 not be for his benefit does not render it absolutely void. The 
 Court of Exchequer Chamber, in Warwick v. Bruce^ held that 
 " the general law is that the contract of an infant may be 
 avoided or not at his own option," and Parke, B., delivering the 
 judgment of the Court of Exchequer in Williams v. Moor,'' said : 
 " The argument on behalf of the defendant was, that an account 
 stated by an infant is not merely voidable, but actually void, so 
 that no subsequent ratification can make it of any avail. But we 
 can see no sound or sensible distinction in this respect between 
 the liability of an infant on an account stated, and his liability 
 for goods sold and delivered, or on any other contract." His 
 
 1 Per AVood, V.-C, in Ring v. Bdlord, i H. & M. 343, 348 ; Sugd. Pow. 177. 
 '^t\?X%ottf. Eanlury, [189.] i Ch. 298; and see Re D'AngiUu, 
 Aiirlrp.ws V. Andrews, 11 Ch. D. 228, c ,- -n j.i To- rr-. 
 
 ^T Cardross' Setirn^nt, 7 Ch. D. 728. J 6 B, h. & Jar. 154- 
 
 - MacDh Inf. 477. Here "void" is convertible with voidable. 
 
 7 6 Taunt. 118. In Cam. Scao. Bruce v.JJanmdc. 
 
 8 12 L. J. Ex. 253. 
 
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CHAP, ii.j ACTS AND CONTRACTS OF INFANTS. 733 . 
 
 lordship thus concluded : " The general doctrine is, that a party 
 may, after he attains the age of twenty-one years, ratify and so 
 make himself liable on contracts made during infancy. We think 
 that, on principle unopposed by authority, this may be done on a 
 contract arising on an account stated, as well as on any other 
 contract." In Begina v. Lord,^ an agreement which compelled 
 an infant servant to serve at all times during the term of service, 
 but left the master free to stop his work and his wages whenever 
 he chose to do so, was held to be inequitable and wholly void, as 
 being prejudicial to the infant servant. But that void here means 
 no more than void as against the infant, or voidable at his option, 
 is plain from the criticisms directed against the case, and especially 
 from what was held by the Queen's Bench Division in Leslie v. 
 FitzpatricJcJ' also a case of contract of service by an infant. It is 
 true that this case has been questioned in a later decision,^ but it 
 seems to contain an accurate exposition of the law. It has been 
 laid down that an infant can do no act to bind himself unless it 
 be manifestly for his benefit ;* but the other opinion, and one 
 followed in more recent decisions, is that the Court must be 
 satisfied that the contract is not for his advantage before it can 
 hold it to be void.^ 
 
 Valid contracts between infants and adults bind the latter, Power of 
 but the former have the privilege of avoiding or confirming them e^OTce° 
 at maiority : for "those who enter into contracts with them shall contracts; 
 
 •> •/ ' _ _ _ ■ 1 , adnlt bound, 
 
 be bound, if it be prejudicial to the infant to rescind the con- 
 tract."* This is a valuable privilege ; and to declare their con- 
 tracts void which may have a superficial aspect of prejudice to 
 them would be to deprive them of this privilege, and be more to 
 the adult's advantage than theirs. The object of the law, which 
 is the protection of the infant, is amply secured by not allowing 
 the contract to be enforced against him during his infancy, and 
 leaving it in his option to af&rm or repudiate it at his full age. 
 An infant may enforce his contracts by suit against the adult 
 contracting party, though he himself has incurred no correspond- 
 ing obligation. Thus, an infant may sue for wages on a con- 
 tract for hiring and service ; ' for a breach of contract to marry,' 
 and generally for breach of any contract entered into with him.' 
 But there is an exception to his power of enforcing his voidable but not by 
 
 specific 
 1 17 L. J. M. C. 181. 2 2 Q. B. D. 229. performance. 
 
 3 Meahin v. Morris, 12 Q. B. D. 354. See post, Contracts of Service, pp. 752 et seq. 
 * Per Abbott, C.J., in Bex v. Wigston, 3 B. & C. 484. 
 
 " Per Martin, B., in Cooper v. Simmons, 31 L. J. M. C. 138. See Mealdn v. 
 Morris {uhi sup. ). 
 
 ^ Per Lord Eedesdale in Shannon v. Sradstreet, i Sch. & Lef. 58. 
 '■ Per Bayley, J., in Bex v. Ohillesford, 4 B. & 0. loi. 
 8 Solt V. Ward, 2 Stra. 937. But see post, p. 744, n. 7. 
 ' Warwick v. Bruce {uhi sup.). 
 
 I 
 
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. 734 INFANTS. [part iv.' 
 
 contracts against the other contracting party during infancy, for 
 specific performance will not be granted at the suit of an infant, 
 because the remedy is not mutual.^ The infant, on the contrary^ 
 is not liable for goods supplied him/ or for work and labour done 
 at his request/ or for rent in an action for use and occupation of 
 premises occupied by him/ or for breach of contract to marry/ or 
 on a warranty." 
 When infant An infant, howeyer, is not entitled to commit fraud with 
 impunity ; consequently, if he represent himself to be of full age, 
 he is bound by payments made and acts done at his request and 
 on the faith of such representations, and is liable to restore any 
 advantage he has obtained by such representations to the person 
 from whom he has obtained it.' But in the absence of any false 
 assertion by the infant, relief in equity will not be granted 
 against him upon the ground that the other contracting party 
 believed him to be of full age ; ^ and the mere fact of his enter- 
 ing into a transaction, which must necessarily be invalid, unless 
 entered into by an adult, is not such a fraud as entitles the other 
 party to relief ; " and knowledge of his infancy by the other party 
 is a complete bar to relief.'" 
 Void contracts. Void Contracts. — Certain contracts and agreements of infants 
 were void. Thus, a bare agreement to deliver goods was void/' 
 Contracts such as Were clearly to the prejudice of the infant were likewise 
 prejudice of void, as a release of debts by an infant executor.'^ If he bind 
 infant. himself by a bond with a penalty to pay for things supplied him, 
 
 whether necessaries or not, he is not bound." Again, there are 
 some contracts which under one set of circumstances may be 
 valid, and under another absolutely void ; thus, a contract by an 
 infant to take shares in a company which is wound up before he 
 attains twenty-one is a mere nullity," the intervention of the 
 winding-up order rendering it unmistakably to his disadvantage,'" 
 though it would be otherwise if the company were not wound up 
 
 1 Flight V. Bolland, 4 Euss. 298. See Lumley v. Bavenscroft, [1895] 1 Q' ^• 
 683. 
 
 ^ Stone v. Withypol, Cro. Eliz. 127 ; 37 & 38 Vict. c. 62, s. I. His liability 
 or non-liability for goods sold to him is determined at tlie time the property in the 
 goods passed to him ; thus, where goods are bought by an infant, and delivered to 
 his earner (the property in them thereby passing), but not delivered by the carrier till 
 after he has attained twenty-one, he is not liable ; Griffin v. Langfield, 3 Camp. 254. 
 
 3 Dilk V. Keighley, 2 Esp. 480. * Lowe v. Griffith, i Scott, 458. 
 
 5 Coxhead v. Mtdlis, 3 0. P. D. 439 ; Northcote v. Doughty, 4 C. P. D. 385 ; 
 Ditcham \. WorraU, S C. P. D. 410. ^ Howlett v. Saswell, 4 Camp. 118. 
 
 !■ See Bartlett v. Welk, 31 L. J. Q. B. 57 ; Clarice v. CoUey, 2 Cox, 173. See 
 post p 736 ^ Stikeman v. Dawson, i De G. & S. 90. 
 
 9 Ibid. ^» Nelson V. Stacker, 32 L. T. 0. S. 368. 
 
 " Perk. s. 12. '^ BnsseWs Case, 5 Eep. 27. 
 
 IS Go. Litt. 172 a. 
 
 " Jlann's Case, L. R. 3 Ch. App. 459 ; Capper's Case, ibid. 458. See remarks of 
 Selwyn, L.J., in Lumsd^n's Case, L. E. 4 Ch. App. 34. 
 
 1' Beid's Case, 24 Beav. 318; Litchfield's Case, 3 De G. & S. 141. 
 
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CHAP, n.] ACTS AND CONTRACTS OP INFANTS. 735 
 
 during his infancy, and he did not avoid his contract within a 
 reasonable time after reaching majority. Formerly the presence 
 or absence of prejudice (by which the validity or invalidity of the 
 contract was determined) was wont to be decided by the tribunal 
 before which the case came for decision ; but by a recent Act a 
 large number of contracts entered into by infants are declared to 
 be absolutely void, and it is immaterial whether or not they 
 would be prejudicial to the infant. But though a contract may 
 be declared void and set aside, yet if an infant has paid any 
 money for things which he has used or consumed he cannot 
 recover their price.' 
 
 This Act is the Infants' Eelief Act, 1874;^ its short but infants' Belief 
 important provisions are as follows : — ^°^' ^^74- 
 
 Sect. I. "All contracts, whether by specialty or by simple Contracts by 
 contract, henceforth entered into by infants for the repayment of for TeoesTaries, 
 money lent or to' be lent, or for goods supplied (other than con- *° ^^ ™'<'- 
 tracts for necessaries), and all accounts stated with infants, shall 
 be absolutely void ; provided always that this enactment shall not 
 invalidate any contract into which an infant may by any existing 
 or future statute, or by the rules of common law or equity enter, 
 except such as now by law are voidable. 
 
 Sect. 2 . " No action shall be brought whereby to charge any No action to 
 person upon any promise made after full age to pay any debt ratification 0" 
 contracted during infancy, or upon any ratification made after it'faiit's con- 
 full age, of any promise or contract made during infancy, whether 
 there shall or shall not be any new consideration for such promise 
 or ratification after full age." For the operation of this section 
 see Chapter III. 
 
 What is the full effect of this enactment it is yet impossible to Effect of Act. 
 say, for there have been but few judicial decisions on it. If the 
 first clause and the proviso of section i are taken together, it 
 seems quite possible to hold that every contract entered into by 
 an infant, except contracts for necessaries, or "contracts binding 
 upon him by any existing or future statute, or by the rules of 
 common law or equity, is absolutely void. The effect of this 
 would be to do away with the class of voidable contracts by 
 infants, and to render section 2 superfluous.' But it can hardly 
 have been the intention of the Legislature to make such a sweep- 
 
 ^ VcAentini v. Canali, 24 Q. B. D. 166. ^ 37 & 38 Vict. u. 62. 
 
 ^ These two sections do not hang neatly together, and one or other of them seems 
 to he unnecessary ; for if all contracts (except particular kinds) are absolutely void, 
 there cannot be a ratification of them ; or if ratification of any promise or contract 
 made during infancy shall be ineffectual to render such promise or contract actionable, 
 there was no need to set out what contracts were void ; unless, as has been suggested 
 (but which is doubtful), the ratification was intended to be efficacious for all purposes 
 other than founding an action. 
 
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73G 
 
 INFANTS. 
 
 [part IV. 
 
 Whether appli- 
 cable to con- 
 tracts incident 
 to interests in 
 property of a 
 permanent 
 nature with 
 obligations 
 attached, 
 guwre. 
 
 Void contracts 
 under the Act. 
 
 Infant 
 cannot be 
 adjudicated 
 bankiTipt ; 
 
 except 
 possibly for 
 necessaries. 
 
 ing change ; and arguing from the analogy supplied by Lord 
 Tenterden's Act/ it may be said that those contracts incident to 
 interests in property of a permanent nature, with obligations 
 attached to it (such as partnership, and the holding of shares), 
 are valid and subsisting until set aside by the infant on reaching 
 twenty -one, or within a reasonable time after. Again, section 5 of 
 Lord Tenterden's Act required that the confirmation of promises of 
 infants on reaching majority should be in writing. Notwithstanding 
 this provision, contracts of partnership and the like entered into by 
 infants were held valid and binding upon them if they did not 
 disaffirm them, though they did not ratify them in writing 
 according to the statute. 
 
 All contracts, whether by specialty or by simple contract, for 
 the repayment of money lent or to be lent are void;^ all con- 
 tracts for goods supplied or to be supplied (other than for 
 necessaries) ; ' trading contracts ; ■* all accounts stated with 
 infants/ even for necessaries ; " and they cannot be used as 
 evidence against him that the goods supplied were necessaries.' 
 A promise on attaining majority to fulfil a void contract made by 
 him daring infancy, and any negotiable instrument given by him 
 to carry out the new promise is void against all persons.^ A 
 promise to marry is within the Act.' 
 
 The next point to be considered is the liability of an infant to 
 be adjudicated a bankrupt. It has been seen that an infant 
 cannot contract legal debts by way of trade or otherwise, except 
 for necessaries ; and if persons enter into business relations with 
 him, they do so at their own risk, and can only rely on his 
 honour and integrity to repay them for what they have furnished 
 to him. He therefore cannot be adjudicated a bankrupt in 
 respect of such debts, on the simple ground that he does not 
 owe them, or has any creditors who can prove for them." But 
 since he can contract validly for necessaries, it is probable that 
 he can be adjudicated a bankrupt in respect of debts so incurred, 
 though, as a rule, it would not be worth while to procure his 
 adjudication. An infant who trades does not hold himself out 
 by such trading as an adult, so as to make himself able to con- 
 
 1 9 Geo. IV. c. 14. ^ 37 & 38 Vict. c. 62, s. i. 
 
 2 Ihid. ; Sx parte Kibhle, Me Onslow, L. R. 10 Ch. App. 373. 
 
 * Ex parte Jones, Be Jones, 18 Ch. D. 109, overruling Be Lynch, 2 Ch. D. 227 ; 
 Iteg. V. Wilson, 5 Q. B. D. 28. 
 
 5 Sect. I. This overrules Williams v. 3Ioor (12 L. J. Ex. 253), on the point that 
 an account stated with an infant was voidable only. 
 
 8 Bartlett v. Emery, i T. R. 42 «. ' Ingledew v. Douglas, 2 Stark. 36. 
 a 55 & 56 Vict. c. 4, B. 5 (Betting and Loans (Infants) Act, 1892). 
 
 9 Coxhead v. MvUis, 3 C. P. D. 439 ; Korthcote v. Doughty, 4 C. P. D. 385 ; 
 Ditcham v. Woi-rall, 5 C. P. D. 410. 
 
 1" E.r parte Jones, Be Jones, (uU sup.), overruling Be Lynch, {uUsup.) ; Beg. v. 
 Wilson, (nhi svp.). 
 
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CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 737 
 
 tract valid debts, and liable to be made a bankrupt on his own 
 petition,^ or on that of a creditor.^ Formerly, if a person on 
 attaining his majority confirmed a debt contracted during 
 infancy, he might have been adjudged a bankrupt in respect of 
 it ; ' and a debt contracted by him under a representation that 
 he was of age might have been proved under a bankruptcy 
 against him after he had attained his majority ; '' and a bank- 
 ruptcy made upon a debt so contracted was refused to be 
 annulled." For the like reason that he cannot validly contract, infant not 
 he is not liable to the criminal provisions of the Debtors' Act, it^Debtors' 
 1869,'' Though if he fraudulently convert goods which have ^<=*' ^^^9- 
 been delivered to him under an agreement for their hire, he can 
 be convicted of larceny as a bailee of them.' 
 
 As all contracts for the supply of goods and the like (except Cannot present 
 for necessaries) made by infants are void, he has not the capacity adjudicate 
 to present a petition to adjudicate his debtor a bankrupt, or take ?'''^l°'^% 
 valid proceedings in his debtor's liquidation by arrangement or 
 composition. But there does not appear to be any insuperable 
 obstacle to his issuing a debtor's summons, aud if the debtor is 
 adjudicated a bankrupt in consequence, the adjudication will not 
 be set aside. ^ The proper person to prove for the infant's legal 
 debts ife his guardian.^ 
 
 Valid Contracts. — The valid contracts of infants will be divided Valid con- 
 into two classes — (i) those which are voidable, and so may be 
 set aside by them ; (2) those which are binding upon them and 
 cannot be set aside. This classification, it is submitted, is still a 
 possible one, notwithstanding the passing of the Infants' Relief 
 Act, 1874.'" It would be difficult to maintain with success that 
 the contracts here described as voidable are not within the letter 
 of the first section of that Act, or, if they are contracts which 
 infants can practically aflSrm on reaching twenty-one, by not 
 repudiating within a reasonable time, and by claiming benefits 
 under them, to deny that such qualified ratification is a practical 
 limitation of the effect of section 2 of the same statute." It will Voidable con- 
 be noticed that the contracts here treated of as voidable are such those 'con- 
 as are connected not with isolated goods and chattels, but with propert^of a 
 incidents in property of a permanent and continuing nature, as permanent and 
 realty, or partnership, or the holding of shares, to which obliga- nature. 
 
 ■* Ex parte Joves {uhi sup.). 
 ^ Hx parte Kibile, Be Onslow (uhi sup.). 
 ^ Belton V. Hodges, 9 Bing. 369. 
 
 ■• Ex parte The Unity Joint-iStoch Mutual Bankiny Association, Re King, 27 
 L. J. Bk. 33. ^ Exjiarte Watson, i6Ves. 265. 
 
 ^ 32 & 33 Vict. c. 62, s. II. ' Beg. v. MacdonaU, 15 Q. B. D. 323. 
 
 8 Ex parte Brockleianlc, Be Brocldehanlc, 6 Ch. D. 358. 
 ' Exparte Belton, i Atk. 251. . " 37 & 3^ "vict. c. 62. 
 
 " See^osf, chap. iii. Ratification and Avoidance of Acts and Contracts. 
 
 3A 
 
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738 
 
 IKFAifTS. 
 
 [PAET IV. 
 
 Voidable con- 
 tracts. 
 Eealty. 
 Leases. 
 
 Leases to 
 infants. 
 
 tions are attached. If these engagements are to be considered, 
 as has been suggested, as being other than pure contracts, then 
 the reason for upholding them would be that the infant is a 
 purchaser of an interest in property of a permanent nature with 
 obligations attached to it, and he cannot renounce the liability 
 unless he has renounced his interest. Again, it is not illegal for 
 an infant to enter into contracts, and some of his engagements 
 are clearly binding on him ; others, though not absolutely bind- 
 ing on him, ought from their nature and incidents to be deemed 
 valid until set aside by him. 
 
 Voidable Contracts, or those Valid until Set Aside hy the Infant. — 
 A lease executed by an infant with a reservation of rent is void- 
 able/ and it is not necessary that the best rent possible should be 
 reserved.^ An agreement for a lease cannot be enforced against him 
 either by way of specific performance or injunction.^ The lessee 
 cannot avoid the lease on account of the infancy of the lessor ; "* nor 
 can the lessor well avoid during his infancy, as by granting another 
 lease of the same property to another person/ but he must wait 
 till he be of age ; * but his heir may avoid it if he die under age.^ 
 The avoidance should be some act of notoriety, as ejectment, entry, 
 or demand of possession ; * the ratification may be shown by some 
 such act as acceptance of rent," or by a mortgage of the land to 
 the lessee by a deed reciting the lease.'" But where a lease is 
 binding upon an infant, e.g., as a reversioner of an estate leased 
 from year to year, he cannot determine the tenancy without giving 
 due notice to quit ; " so, too, where he has recognized the lease by 
 receiving rent.'^ A parol lease is voidable only, and the infant may 
 recover for use and occupation." A lease without a rent reserved 
 is not void, if it be to the infant's advantage. 
 
 There is a dictum of Lord Mansfield that if an infant take an 
 estate and is to pay rent for it, he shall not hold the estate, and 
 defend himself against payment of the rent by pretence of infancy;" 
 
 ' Per Lord St. Leonards in Allen v. AUen, 2 Dr. & W. 307, 339. If the first 
 section of 37 & 38 Vict. c. 62, applies, and renders such a lease or an agreement for a 
 lease absolutely void, no ratification of it is possible, and a new lease ought therefore to 
 be executed by the infant on attaining majority; if not, his lessee would stand to him 
 as a tenant at will, or a tenant from year to year, with the covenants of the void lease 
 to be observed. If the infant were the lessee, he would be on the like footing of » 
 tenant at will, or tenant from year to year, as the case might be. 
 
 2 Slator v. Brady, 14 Ir. C. L. R. 61. 
 
 3 Lumley v. Mavenscroft, [1895] i Q. B. 683. 
 * Zouch V. Parsons, 3 Burr. 1794. 
 
 '" Slatw V. Trimble, 14 Ir. C. L. R. 342. ^ Ihid. 
 
 '' A Cruise, 74, s. 67. * Slator v. Trimhle (uU sup.). 
 
 t JUcl. i» (Sori/ V. JbAjism?, 2 Y. & C. Ex. 586. 
 
 " Madclon \. White, 2 T. R. 159. 
 
 ^2 See Bees dem. Lloyd v. Evans, cited Simp. Inf. 26. 
 
 " Smith V. Bowen, 1 Mod. 25. 
 
 " In Earl of BmldnghamsMre v. Drimj, 2 Ed. 60, 72. 
 
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CHAP. II. 1 ACTS AND CONTRACTS OF INFANTS. 739 
 
 but Sir G. Jessel, in LemprUre v. Zange,^ stated that such was not 
 the law, and certainly since the Infants' Eelief Act, 1874, it would 
 not be held to be an accurate statement of it. While a lease to 
 an infant is voidable by him, if he continue to occupy after attain- 
 ing twenty-one, he will be liable for all arrears of rent." The 
 interests of the infant are regarded; therefore, where a lease was 
 renewed to an adult alone in which the adult and infant were 
 jointly interested, if beneficial, the adult will be held as trustee 
 for the infant ; if not the renewal will be to the adult alone.' An 
 infant has been held liable for rent which became due while he 
 was in occupation, though he repudiated the tenancy before attain- 
 ing twenty-one.'' This liability does not rest on contract ; and an 
 action for use and occupation cannot be maintained against him, 
 except in so far as the occupation may be considered necessary, and 
 for his benefit," even where he has been guilty of fraudulent mis- 
 representation as to his age ; but the Court may declare the lease 
 under such circumstances to be null and void.* 
 
 The election to avoid a lease must be made by the infant within Infant mnst 
 a reasonable time after he attains majority ; ' and an acquiescence ^thin T^" 
 of four months after majority has been held to preclude an infant reasonable 
 from afterwards disaffirming a lease ; and an acquiescence for so 
 long a period would be evidence from which a jury might infer 
 an affirmance of the lease.^ An infant's voidable conveyance of 
 land cannot be avoided or confirmed during minority, not only 
 because of the solemnity of the instrument, but " that his election 
 might not be found by the judgment," that is, in any action brought 
 duriug infancy to avoid his act." The powers of guardians to make 
 leases are treated of elsewhere.'" 
 
 An infant cannot execute a valid mortgage of his personal Mortgages, 
 chattels, as by a bill of sale, nor under ordinary circumstances of 
 his realty," and though in the latter case his conveyance taking 
 efEect by delivery would be within the rule laid down by Perkins, 
 aiid so good, yet the deed would be void as being clearly preju- 
 dicial to him, for it cannot be to his advantage to charge his 
 property. Neither a guardian nor the Court of Chancery has any 
 inherent power to mortgage the infant's property, except that the 
 latter may direct a mortgage of the infant's realty for payment of 
 
 1 12 Ch. D, 675. 
 
 ^ Ketsey's Case, Cro. Jac. 320 ; S. C. Kethy's Case, i Brownl. 120 ; S. C. Kettle 
 i. Elliott, I Roll. Abr. 731, and Kirton v. Elliott, 2 Bulet. 69. 
 
 ^ Ex parte Grace, i B. & P. 376. * Blalie v. Uoncannon, I Ir. C. L. 323. 
 
 ^ Simp. Inf. 26. See Holmes v. Blogg, 8 Taunt. 35. 
 
 * Lempriire v. Lange (libi sup.). 
 
 ^ See North- Western Railway Co. v. M'Micliael, 20 L. J. Ex. 97. 
 
 ' Slator V. Trimhle (uU sup.). ^ Zouch v. Parsons (ubi sup.). 
 
 ^^ Part III. Guardian and Ward, chap. vi. pp. 671 et seq. 
 
 " Coote, Mort. 219. 
 
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740 
 
 INFANTS. 
 
 [past IV. 
 
 Express 
 custom. 
 
 Copyhold. 
 Liability of 
 infant for fine. 
 
 Contracts of a 
 
 permanent 
 
 nature. 
 
 Infant 
 partners. 
 
 Doctrine of 
 "holding out ' 
 applicable to 
 infant 
 partners. 
 
 his ancestor's debts.' But where the infant charges his realty in 
 order to secure advances made to pay for necessaries, his mortgage 
 is not void but voidable ; it cannot be enforced during infancy, and 
 is not binding on him till he affirm after reaching majority.^ If 
 the infant has been guilty of fraud in making the mortgage, and 
 the parties cannot be restored to their original positions, the infant 
 will be held bound by the deed.^ 
 
 An infant's acts may by virtue of express custom bind him ; 
 thus, by the custom of gavelkind an infant of either sex and in 
 actual possession of the land may validly aliene it at the age of 
 fifteen by feofiment ■* but this liberty is only allowed under such 
 limitations and restrictions that he is not thereby wronged or 
 imposed upon ; * in other words, there must be full valuable con- 
 sideration for the sale and feoffment." 
 
 An infant is liable for a customary fine of copyhold if he 
 occupy.'' He may by special custom surrender copyhold by way 
 of alienation or otherwise, and be bound by the surrender, but if 
 there be no such special custom, his surrender is voidable.' 
 
 If an infant enters into a contract of a permanent or continuing 
 nature which is not of itself prejudicial to him, he must repudiate 
 it within a reasonable time of reaching majority, or he will be 
 bound by its terms.' 
 
 Partnership. — At common law an infant may be a partner. 
 In the important case of Goode v. Harrison,^" Bay ley, J., said : "It 
 is clear that an infant may be in partnership. It is true that he 
 is not liable for contracts entered into during his infancy, but he 
 still may be a partner. If he is in point of fact a partner during 
 his infancy, he may, when he comes of age, elect if he will con- 
 tinue the partnership or not."" Lord Justice Lindley'^ is of 
 opinion that notwithstanding the second section of the Infants' 
 Relief Act, 1874, a person who on attaining majority retains a 
 share in a pai-tnership or company cannot retain it without its 
 
 1 II Geo. IV. and I "Wm. IV. c. 47, and 2 & 3 Vict. ^. 60. 
 
 2 Martin v. Gale, 4 Ch. D. 428. 
 
 ^ See Watts v. Haiswell, cited in Earl of Buckinghamshire 1. Drury, 2 Ed. 73 ; 
 S. C. Earl of Glare v. Bedford, 13 Vin. Abr. 536 ; also WaUs v. CressweU, 9 Vin. 
 Abr. 415. 
 
 ^ Robinson, Gavelk. 248-250. This moJe of conveyance is rarely_ resorted to now- 
 adays, and as much land in Kent, where the custom chiefly prevails, is held in socage 
 tenure, and much has been disgavelled, circumspection should be used in accepting 
 titles under a feoffment by an infant. = 4 Bac. Abr. (7th edit.) p. 49. 
 
 « Me MaskeU and Goldfinch's Contract, [1895] 2 Ch. 525. 
 
 ' Evelyn v. Chichester, 3 Burr. 1717. 
 
 8 Macph. Inf. 473 ; Nayler v. Strode, 2 Ch. Eep. 392 ; Zouch v. Farsons, 
 
 North- Western By. Co. v. M'Michael, 20 L. J. Ex. 97 ; Ooode v. Harrison, 
 5 B & Aid. 147 ; Whittingham v. Murdy, 60 L. T. 956. " ( Ubi sup.). 
 
 " See per Hersohell, L.C., in LoveU v. Beauchamp, [1894] App. Cas. 611. 
 12 tart. 84. 
 
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CHAP, ii.l ACTS AND CONTRACTS OF INFANTS. 741 
 
 incidental obligations on tte doctrine of holding out.' But the 
 effect of the section is to render him in no way liable for the 
 prior debts contracted during his infancy, and if on attaining 
 twenty-one he elect to avoid the contract of partnership, he may 
 recover back any money paid in part performance of the contract, 
 if he has reaped no advantage, and there is a total failure of 
 consideration, and he can restore the other party to the same 
 position as before the contract,'' but if he has enjoyed any part 
 of the consideration he cannot recover,^ or enjoyed some advan- 
 tage sufficient to constitute valuable consideration for the contract 
 to become a partner, and the mere allotment of shares and the 
 placing of his name on the register is not such an advantage.'' 
 But "notwithstanding the general irresponsibility of an infant, 
 he cannot, as against his co-partners, insist that in taking the 
 partnership accounts he shall be credited with profits and not be 
 debited with losses. He must either repudiate or abide by the 
 agreement under which alone he is entitled to any share of the 
 profits."^ As an infant is not responsible for the torts of his 
 agent, an infant partner cannot be made liable for the miscon- 
 duct of his co-partners. The irresponsibility of an infant as a 
 partner seems therefore to be complete except in cases of fraud.* 
 Where an infant is a member of a iirm, a judgment against the 
 firm simply for its debts or liabilities cannot be recovered ; but a 
 judgment against " the defendants other than " the infant 
 partner may be recovered ; '' and if an act of bankruptcy has 
 been committed by the firm a receiving order cannot be made 
 against the firm simply, but should be made against the firm 
 " other than " the infant partner.* The infant's fraud will be 
 visited with like results in partnership as in other contracts, and 
 his fraudulent representations will bind him.^ 
 
 Shareholdinq. — An infant may be a shareholder. Infant share- Infant share- 
 
 (.11 1 -I 1 T_ holdei-B. 
 
 holders are not mere contractors, tor then they would nave been 
 exempt, but in truth they are purchasers who have acquired an 
 interest, not in a mere chattel, but in a subject of a permanent 
 nature, either by contract with the company, or purchase or 
 devolution from those who have contracted, and with certain 
 obligations attached to it, which they were bound to discharge, 
 and have been thereby placed in a situation analogous to an 
 
 1 See Cork and Bandon Mailway Co. v. Cazenove, 10 Q. B. 935. 
 
 ^ Corpe V. Overton, 10 Bing. 252 ; Everitt v. WilUiis, 29 L. T. 846. 
 
 =* Uolmes V. Bhcjg, 8 Taunt. 508. 
 
 * Hamilton t. Vaughan-Sherrin Electrical Snc/ineeri at/ Co., [1894] 3 Ch. 589. 
 
 5 Liiid. Part. 83. " Jbid. 83. 
 
 ' Lovell V. Beaucliamp (ubi sup. ). ^ Ihid. 
 
 " Lind. Part. 83. 
 
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742 
 
 INFANTS. 
 
 [part IV. 
 
 Transfers 
 to infants 
 voidable. 
 
 infant purchaser of real estate wto has taken possession, and 
 thereby becomes liable to all the obligatioijs attached to the 
 estate, for instance, to pay rent in the case of a lease rendering 
 rent, and to pay a fine due on the admission, in the case of a 
 copyhold to which an infant has been admitted, unless they have 
 elected to waive or disagree to the purchase altogether, either 
 during infancy or after full age, at either of which times it is 
 competent for an infant to do so.^ The infant's engagement 
 is voidable, and he may have his name removed from the register 
 of the company, unless, perhaps, he has been guilty of fraud.^ 
 Thus, his signing the memorandum of association does not 
 absolutely fix him with liability, though he becomes a member 
 until he repudiates his shares ;' his application for shares,* 
 and the payment of calls and receiving of dividends have the 
 like effect.* 
 
 The company has the corresponding privilege of rejecting the 
 infant as shareholder on ascertaining the fact of his infancy, 
 and can put his transferror iu his place ; '^ but if his transferree 
 has been accepted by the company as a shareholder, the transfer 
 by the infant cannot be treated as a nullity.' These transfers 
 then to infants are voidable not only by the infant whilst of age, 
 or within a reasonable time after coming of age, but also by the 
 company, unless it has accepted him, knowing him to be atn 
 infant, or has allowed him to transfer and has accepted his 
 transferree.^ Unless the infant repudiate his shares within a 
 reasonable time after attaining majority, he will be bound 
 and placed on the list of contributories.' His liability will 
 now be considered under two different sets of circumstances; 
 
 Company a 
 going concern. 
 
 going concern 
 the company is 
 
 at the time of his 
 being wound up 
 
 (i) when the company is a 
 coming of age ; (2) when 
 during his infancy. 
 
 I. The infant may repudiate his shares during minority or 
 within a reasonable time after coming of age.'° If he does not 
 repudiate his shares he must pay calls like any other share- 
 holder ; but on repudiation he will not be liable for calls unless 
 he has received any profits out of the concern ;" but he cannot 
 
 ' Per Parke, B., in North- ^Vestern Eailway Co. v. Ji I' Michael, 20 L. J. Ex. 97. 
 
 ' See^osi, p. 763. ' See Re Nassau Phosphate Co., 2 Ch. D. 610. 
 
 * Ebhet's Case, L. E. 5 Ch. App. 302. 
 
 5 Lumsden's Case, L. E. 4 Ch. App. 31. 
 
 •■ Castello's Case, L. E. 8 Eq. 504 ; Symons Case, L. E. 5 Ch. App. 298. 
 
 ? Gooch's Case, L. E. 8 Oh. App. 266, overruling S. C, L. E. 14 Eq. 454. 
 
 ^ Lind. Comp. 828, and the cases there cited. 
 
 8 ShrapneU's Case, cited Lind. Comp. 810. 
 
 i» Newry and EnnisJciUen Bailway Co. v. Coombe, 18 L. J. Ex. 325 ; Dublin and 
 WkUow Bailway Co. v. Black, 22 L. J. Ex, 94. 
 " Newry and EnniskiUen Bailway Co. v. Goombe {iibi sup.). 
 
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CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 743 
 
 hold the shares and decline to pay the calls in respect of them.' 
 His repudiation must be clear and explicit,^ otherwise he will be 
 held to have ratified the contract by acquiescence.^ 
 
 2. When the company is ordered to be wound up before the Company 
 infant reaches his majority the transfer of shares to him becomes during "^ 
 inoperative, on the ground of prejudice to the infant.^ It has ^f'^i^'^y- 
 been held that a transfer under such circumstances is not a mere 
 nullity ah initio;' and Lord Justice Lindley" writes that he "is 
 not aware of any case in which an infant has been put on the list 
 of contributors. Upon principle, however, there does not appear 
 to be any reason why he should not, if it be for his benefit ; and 
 this, if there are surplus assets, may be the case." So, too. Page 
 Wood, L.J., in Capper's Case,'' admits that difficulties might arise 
 as to the effect of a transfer to an infant, " for it would seem that 
 the infant ought to have an option whether he will repudiate or 
 ratify the transfer." Bat there are two cases* which approach 
 closely to a decision that such transfer is a nullity ; they decided 
 that a person who was an infant when the winding-up commenced 
 could not on his attaining twenty-one elect to hold shares trans- 
 ferred to him, and thereby defeat the right of the company to 
 reject him, and to have his transferror put on the list in his place ; 
 but where it is clearly not for his benefit, he will not be liable. 
 This right to treat the transfer as inoperative is not peculiar to 
 the infant, but the company, or if the company is in liquidation, 
 the liquidator, may remove the infant's name from the register, 
 and put on that of his transferror." But the company may lose 
 this right if it be guilty of laches prior to the winding-up.'" The 
 infant does not lose Ms right of repudiation on his part by mere 
 delay." The person who takes shares direct from a company in 
 the name of an infant, in the event of the company being wound 
 up, will usually be held liable for contributions in respect of them 
 and not the infant.'^ 
 
 Infants above sixteen may be members of a " friendly society " f^^^^^^ °* 
 unless provision to the contrary be made in the rules of the societies. 
 
 ' Newri] and Hiuunkilln Eaihmij Co. v. Coomhe (uU sup.). 
 
 ' Korth- Western Ptailwaij Co. v. M'Mchael (uU sup.) ; Mrhenhead and Cheshire 
 Junction Bailivav Co. v. Pilcher, 20 L. J. Kx. 97. 
 
 ■■ Cork and Bandoii Railway Co. v. Cazemve, 10 Q. B. 935 ; see post, chap. m. 
 Eatification and Avoidance of Contracts. , 
 
 J Litchfield's Case, 3 De G. & S. 141 ; Jieid's Case, 24 Beav. 318 ; Capper s 
 Case, L. K. 3 Ch. App. 458 ; Mann's Case, ibid.; Lumsden's Case {uhi sup.). 
 
 •5 Per Selwyn, L.J., in Lumsden's Case {ubi sup.). ^ Comp. 809. 
 
 ' 3 Ch. App. 461. 7- J. it, 
 
 » CasteOo's Case (uhi sup.) ; Symon's Case {ubi sup.). Tlie ratio decidendi ot these 
 cases is that the winding-up fixes-the status of the contributory. 
 
 " Lind. Comp. 811 ; Symon's Case (nbi sup.). 
 " Parson's Case, L. K. 8 Eq. 656. 
 " ShrapneU's Case, cited Lind. Comp. 810. 
 1- Weston's Case, L. E. 5 Ch. App. 614. 
 
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tract, 
 
 744 INFANTS. [part iv. 
 
 society, and, subject to such rules, may enjoy all the rights of 
 members.' 
 Trading. Infant Traders. — There is nothing in law to prevent an infant 
 
 from being engaged in trade, but since the Infants' Eelief Act, 
 1874, all his contracts in respect of it are void and unenforceable 
 against him ; " and the mere fact that he carries on a trade is no 
 representation that he is of age.^ His liability or non-liability to 
 be made a bankrupt in respect of his debts and engagements has 
 been before discussed.'' 
 
 Binding Contracts. — There are certain contracts which it is to 
 the advantage of the infant should bind him. To hold them 
 void, or even voidable, would be more to his detriment than 
 profit ; others, again, the interests of society demand should held 
 him bound. 
 ■n- Nature has made the sexes liahiles matrimonii at a period much 
 earlier than the legal age of majority ; and it would be detri- 
 mental to the morals of the contracting parties and the well-being 
 of society if a contract of marriage between marriageable 
 minors could be rescinded at the option of either. Accordingly, 
 it is settled law that a male infant may contract a valid marriage 
 at fourteen, and a female infant at twelve. If they go through the 
 form of marriage while infra nubiles annos, but above seven, and 
 agree to marry after arriving at the above ages, there need be no 
 new marriage ; but they cannot disagree before the said ages.* 
 If the contract of marriage itself is valid, whether made by an 
 adult or infant, so the promise to marry by an infant is one that 
 should be held to be not void but voidable only at the discretion 
 of the infant on arriving at majority. The Courts have held 
 otherwise, and that the promise to marry is void within section i 
 of the Infants' Eelief Act, 1874," but not without some doubting 
 on the part of the judges.' That Act was passed to protect 
 infants from contracts for the purchase of goods and loans of 
 money and the like, and was not, it is submitted, intended to 
 apply to contracts unconnected with such matters. It is a 
 
 1 38 & 39 Vict. u. 60, s. 15, sub-s. 8 (The Friendly Societies Act, 1875). 
 
 ^ J<!x parte Jones, lie Jones, 18 Ch. D. 109, 121. 
 
 ^ Ibid. ■* Ante, p. 736. 
 
 ^ Co. Litt. 79 a. See ante, Part I. Husband and Wife, chap. vi. Impediments to 
 Marriago, pp. 73 et sea. 
 
 " Goxhead v. MuUis, 3 C. P. D. 439 ; Northcote v. Doughty, 4 C. P. D. 385 ;. 
 Ditcham v. Worrall, 5 C. P. D. 410. 
 
 ' Per Uenman, J., in Ditcham v. Worrall (see 5 G. P. D. 416). If this contract is 
 rightly within the Act, it must be considered to be absolutely void on the two following 
 grounds: u,. By the effect of the proviso in section i, all the voidable contracts of 
 infants are invalidated ; 6. because it has been held to be a promise incapable of 
 ratification, and as such must be void. The result then will be that an infant will not 
 be able to sue the adult contracting party for breach of a promise to marry, and such 
 cases as Holt v. Ward, 2 Stra. 937, are no longer law : sed cle hoc quaire. 
 
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necessaries. 
 
 CHAP. ii.J ACTS AND CONTRACTS OP INFANTS. 745 
 
 question of fact for the jury whether there has been a fresh 
 promise of marriage by the defendant or a mere ratification of 
 the old promise ; if the former, the promisor is bound, if the 
 latter, he is not bound.' The evidence of a new promise ought 
 to be clear and not consistent with a mere ratification of the old 
 promise.^ 
 
 A settlement, or an agreement for a settlement, made in con- Marriage 
 templation of marriage with the sanction of the Court of Chancery under infants 
 under the Infants' Settlement Act, 1855, Ms binding upon the I^J;^^^^^^^''' 
 parties, though both or one may be under age." 
 
 The general rule of law is clearly established, and is that an Contracts for 
 infant is generally incapable of binding himself by a contract. 
 To this rule there is an exception introduced for the benefit of 
 the infant himself. This exception is that he may make a con- 
 tract for necessaries. And, as is accurately stated by Parke, B., 
 in Peters v. Fleming^ " From the earliest time down to the pre- 
 sent the word necessaries is not confined in its strict sense to 
 such articles as were necessary to the support of life, but extended 
 to articles fit to maintain the particular person in the state, station, 
 and degree in life in which he is ; and, therefore, we must not 
 take the word necessaries in its unqualified sense, but with the 
 qualification above pointed out." ** The reason for making such 
 contracts binding is altogether the benefit of the infant. Now it 
 is not an accurate statement of the law to say that every contract 
 for the benefit of the infant is binding on him.' Buller, J., in 
 Maddon v. White,^ is reported to have said that " all the modern 
 cases have expressly held that an infant cannot avoid a lease 
 which is for his own benefit ; and Lord Mansfield, in Drury v. 
 D'l-v/ry,^ laid it down as a general principle that if an agree- 
 ment be for the benefit of an infant at the time it shall bind 
 him. Lord Hardwicke atterwards adopted this rule." In the 
 argument of Martin v. Gale,'" Jessel, M.R., said" of this pro- 
 position : " There must be some mistake in the report of what 
 Buller, J., is stated to have said. No case can be found in which 
 Lord Mansfield or Lord Hardwicke had laid down any such 
 general principle " ; and his lordship decided that case in accord- 
 ance with the better opinion that infants' acts and contracts are 
 in general voidable at their option. A contract clearly unfair, 
 unreasonable, or on the whole to the detriment of an infant is 
 
 1 Holmes v. Brierhy, 59 L. T. 70. ^ ji,ia, 3 18 & 19 Vict. c. 43- 
 
 ^ See post, chap. iv. Marriage Settlements of Infants. = 6 M. & W. at p. 46. 
 
 " Per Willea, J., in Hyder v. Wombwell, L. K. 4 Ex. 32, 38. 
 '' Or, conversely, that his contract is binding unless manifestly to lus prejudice. 
 Cooper V. Simmons, 7 H. & N, 707, 721 ; but see 31 L. J. M. C. 138, 144. 
 » 2 T. R. 159, 161. " I>om. Proc. 26tU May 1762. 
 
 1" 4 dh. D. 428. " At p. 43r. 
 
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the judge. 
 
 74G INFANTS. [part iv. 
 
 not binding on him.' But i£ it is established that a contract in 
 the nature of a " necessary," such as a contract of service or 
 apprenticeship, is on the whole to the advantage of the infant it 
 is not voidable and to be repudiated by him." 
 
 Contracts for The question here to be discussed deals with things neces- 
 
 necessanes o ^^^^ ^^^ ^-^^ Support of life, and becoming to the infant in his 
 social station.^ If an infant could not obtain such things he 
 would be in a poor plight ; if he could not obtain credit in their 
 purchase, not only might he starve from hunger, cold, or neglect, 
 but be excluded from his rightful place in society, though in the 
 immediate future he might have ample means to purchase them. 
 To obtain credit his direct or implied promise to pay for them 
 must be enforced; and his " single" bond (that is, one without a 
 penalty) for necessaries, including teaching or instruction, may be 
 enforced against him.* 
 
 Mixed law and The question of necessaries is one of mixed law and fact. The 
 respective provinces of the judge and the jury have not been 
 settled without some debate and controversy. The matter has 
 been settled by the Court of Exchequer Chamber in Byder v. 
 
 Province of Womlivell.^ It mav now be taken to be settled that it is the 
 province of the judge to hold whether the things supplied are 
 primd facie necessaries, or, that if not primd facie necessaries, the 
 plaintiflf has the onics cast upon him of proving that the articles 
 supplied are, owing to the special circumstances of the case, 
 within the category of necessaries, and then whether there is any 
 evidence to satisfy that 07ius. If the judge is of opinion that 
 under no circumstances could the things supplied be held to be 
 
 ' Corn V. Matthews, [1893] i Q. B. 310; Flower v. London and North- Western 
 liailway Co., [1894] 2 Q. B. 65. 
 
 ^ Clements v. London and North-Western Railway Co., [1894] 2 Q. B. 482. In 
 the course of his judgment in this case Kay, L. J., said he thought " if a contract outside 
 the question of employment or service was beneficial to the infant a Court of law might 
 elect for him while an infant to confirm it." But this would not seem to be the true 
 state of the law ; for to take the case of the marriage settlements of infants, it required 
 an Act of the Legislature to make them binding after the sanction of the Court of 
 Chancery to their provisions had been obtained. In both cases of Flower v. 
 London and North- Western Railway Co. and Clements v. Iiondon and North- 
 western Railway Co., Esher, M.R., laid it down that where the contract belween the 
 infant and the adult was reduced to writing, it was not only the province of the judge to 
 construe the document, and determine its meaning and legal effect, but also to pro- 
 nounce whether its terms were prejudicial to the infant or not. But the latter is in the 
 province of the jury, for whether the terms are or are no*" prejudicial is a question of 
 fact which it is clear a jury ought to find. It may be mentioned that in the former 
 case that question was left to the jury. 
 
 ^ It is well established by the decisions that under the denomination necessaries 
 fall not only the food, clothes, and lodging necessary to the actual support of life, but 
 likewise means of education suitable to the infant's degree, and all those accommoda- 
 tions, conveniences, and matters of taste, which the usages of society for the lime being 
 render proper and conformable to a person in the rank in which the infant moves. Sm. 
 Cont. 292. 
 
 * Co. Litt. 172 a ; Picliering v. Jacobs, March, 145 ; Russel v. Lee, i Lev. 86. 
 See Walter v. Everard, [1891] 2 Q. B. 369. 
 
 ■■ L. E.. 4 Ex. 32, overruling S. C, L. K. 3 Ex. 90. 
 
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CHAP. 11.] ACTS AND CONTRACTS OF INFANTS. 747 
 
 necessaries (that is, no reasonable and proper evidence could be 
 offered to satisfy the jury that they were necessaries),' it is his 
 duty to non-suit the plaintiff." The province of the jury is to Province of 
 say whether the things supplied were necessaries for the infant. "^ ■'"'''■ 
 They are not at liberty to find any and everything to be a 
 necessary, as they please. The circumstances of the infant, his 
 rank, degree, and fortune are first to be inquired into, and then 
 the nature of the things supplied him. Willes, J., on this point 
 said : ^ " We quite agree that the judges are not to determine 
 facts, and therefore where evidence is given as to any fact, the 
 jury must determine whether they believe it or not. But the 
 judges do know, as much as juries, what is the usual and 
 normal state of things, and consequently whether any particular 
 article is of such a description as that it may be a necessary 
 under such usual state of things." " "When the judge has left 
 the question to the jury, it is for them to determine on the 
 evidence whether the things supplied were or were not under the 
 circumstances of the case necessaries so as to bind the infant 
 purchaser. But their verdict in this as in other matters is not 
 conclusive, but subject to review ; and if held to be given 
 against the weight of evidence, a new trial may be ordered.* 
 Indeed, there must be some limit imposed upon the power of 
 juries to find what things are or are not necessaries. Jurymen 
 are principally drawn from the trading classes, and have a not 
 unnatural bias in favour of the plaintiff, which is increased by a 
 sense that it is shabby on the part of a grown-up infant who is 
 of an extravagant bent to plead infancy in order to shirk his 
 responsibilities, though he has willingly availed himself of his 
 opportunities to gratify his tastes. They, too, from a want of 
 intimate knowledge of what is required in the higher strata of 
 society, are too prone to regard as necessaries what is mere 
 wasteful luxury, quite useless and unnecessary to the defendant 
 in his proper station. If a check were not put upon juries 
 the protection devised by the law on behalf of infants would 
 disappear. 
 
 It would be quite superfluous, not to say impossible, to attempt 
 to give an exhaustive list of what things have been held neces- 
 
 1 As, for instance, " earrings for a male, spectacles for a blind person, a wild animal, 
 daily dinners of turtle and venison for a month, or a coach and four for a clerk on £i a 
 week." Per Bramwell, B., in Byder v. TVombwell {uhi sup.). 
 
 2 Bryant v. Eichardson, L. B. 3 Ex. 93 n. In Mackarell v. Bachelor, Cro. Bliz. 
 583, the Court appears to have decided this question upon demurrer. 
 
 3 L. E. 4 Ex. p. 40. It is not unlikely that her Majesty's judges would be as 
 cognizant oi the usages and requirements of society as a common jury. 
 
 ■* Cockburn, C. J., in Jenner v. Walker, 19 L. T. 398, followed this ruling, but 
 thought that it had altered the law. 
 
 ■' Ejidei- V. Wombwell (uhi sup.) ; Harrison v. Fane, i M. & G. 550. 
 
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748 INFANTS. [part iv. 
 
 saries and non-necessaries. The varied and various circumstances- 
 that must be taken into consideration in the different cases, thfr 
 quantity and quality of the articles supplied, the rank, fortune, 
 station, and prospects of the infant, render it impracticable to lay 
 down any hard-and fast rules, or to cite instances as conclusive 
 guides in omnibus. The following cases are mere examples of 
 what under their particular circumstances have been held to be- 
 necessaries, and what not necessaries. 
 
 Necessaries. An infant may bind himself to pay for his necessary meat, 
 
 drink, apparel, necessary physic,' and such other necessaries, 
 and likewise for his good teaching or instruction, whereby he 
 may profit himself afterwards,^ that is, instruction which would 
 fit for a profession or trade or business.^ This has been extended^ 
 to articles fit to maintain the particular person in the state, 
 station, and degree of life in which he is. In short, the term 
 " necessary " is relative." Things necessary to a person in one 
 station of life may be quite unnecessary, and even wanton extra- 
 vagance, in a person in another station of life. So, too, things 
 which would be unnecessary for the same individual under one 
 set of circumstances may under another be necessary. Thus,, 
 expensive articles of diet, which would be unnecessary for a man 
 in health, may become necessary when ordered to be taken by 
 
 crtmtya him under medical advice.'^ The utility of an article does not 
 
 seem to be an unfair test as to whether it is a necessary or not. 
 Articles of mere ornament or luxury cannot well be necessaries ;. 
 but an article if useful ought not to be held unnecessary simply 
 because it is ornamental and luxurious, if it is of such a descrip- 
 tion as might well comport with the rank and fortune of the 
 infant.' In all cases there must be personal advantage from the 
 contract derived to the infant himself.^ Whether such article is 
 or is not a necessary, is properly to be left to the jury.' In 
 
 ^ This would be held to include medical attendance, and not mei'ely the supply of 
 medicine. See Muggins \. Wiseman, Gaiib. no. 
 
 ^ Co. Litt. 172 a. The " good teaching or instruction " has been held to oomprehendi 
 that general education which is required by his station in lil'e (Manhy v. Scott, i Sid. 
 112) ; but special instruction, with a view to the exercise of a particular calling, has in 
 one case been excluded ; thus, where a brother advanced ^^40, as a premium for taking 
 his sister as an apprentice to learn millinery. Lord Kenyon was of opinion tLat it could 
 not be considered as a necessary, and therefore that the payment could not be enforced 
 in a Court of law (Smith v. Gibson, Peake, Add. Gas. 52). But see Walter v. Everard,. 
 [1891] 2 Q. B. 369. In an American case, it was held to be a primd facie rule that a 
 college education could not be ranked among those necessaries lor which an infant 
 could render himself absolutely liable. Middlehury College v. Chandler, 16 Vt. 683. 
 See Pickering v. Ounning, Sir Wm. Jones, 182. 
 
 ^ Waiter v. Everard (uhi sup.) ; Cooper v. Simmons, 31 L. J. M. C. 138 (ap- 
 prenticeship). ^ Per Parke, B., in Peters v. Flemiiig, 6 M. & W. 42, 46. 
 
 ^ " It is a flexible, and not an absolute term." Per Thomas, J., in Breed v. Judd,. 
 I Gray, 458 (Amer.). *> See Wharton v. Mackenzie, 13 L. J. Q. B. 130. 
 
 ' Peters v. Fleming (uhi sup.). ' Chappie v. Cooper, 13 M. & W. 252, 258.. 
 
 ^ Maddox v. Miller, i M. & S. 738. 
 
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 partial test. 
 
CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 749 
 
 addition to the ordinary necessaries of life, sucli as meat, 
 drink, clothing, and lodging,' the following have been held 
 necessaries : ^ livery for the servant of a captain in the army ; ^ 
 a volunteer's uniform ; ^ a light cart for an officer in the army, 
 such as was used by nearly all officers ; * a gold watch-chain, 
 rings, and two gold pins, for an undergraduate, eldest son of a 
 man of fortune ; ^ payment of money to release an infant from 
 arrest,^ or to save him from ejectment for non-payment of rent.' 
 Necessaries for an infant's wife are necessaries for him.' Presents 
 of jewelry for an intended bride may, it seems, be held necessary 
 for a person in a good pecuniary position ; '" and costs of a 
 marriage settlement." An article not primd facie a necessary Article not 
 
 ., . , . , primd facie a 
 
 may become so under special circumstances, as a horse, or necessary may 
 carriage exercise ordered by a doctor.'- Whether legal expenses J^XTtpeciai 
 disbursed on behalf of the infant were or were not necessaries circumstances. 
 would probably depend upon whether the legal proceedings were 
 properly and reasonably undertaken. If they were necessary, or 
 incurred clearly for his benefit, they would in all likelihood be 
 recovered against him, but the onus probandi would be on his 
 legal adviser.'' If the infant contracts for necessaries he impliedly 
 promises to pay for them, but if another undertakes to pay for 
 the goods supplied, this express agreement would seem to take 
 away the implied contract on the part of the infant ; " but an 
 infant is not liable on a bill of exchange accepted by him, though 
 for the price of necessaries.'^ 
 
 The following have been held not to be necessaries : Cockades Non- 
 for some of the soldiers of a company commanded by the infant ; 
 a chronometer costing £6S for a lieutenant in the navy not in 
 commission;" expensive dinners and desserts supplied to an under- 
 graduate in his private rooms ; '^ cigars and tobacco ; " a pair 
 of jewelled solitaire studs worth £2$, and a silver goblet worth 
 
 1 Lowe V. Griffith, l Scott, 458. An infant may contract for the use and occupation 
 of necessary lodgings, and he will be liahle on assumpsit for a reasonable rent, but not 
 on his covenant to pay a fixed rent. Macph. Inf. 501. 
 
 2 Collected in Simp. Inf. 91-92. '^ Hands v. Slaney, 8 T. E. 578. 
 ^ Ooates V. Wilson, 5 Esp. 152. This was " in perilous times, when young men 
 
 enrolled themselves in different corps for the defence of the country." 
 
 ' Bernard v. , cited 7 C. & P. 52. ^ Peters v. Fleming {uU sup.). 
 
 ' Male V. Roberts, 3 Esp. 163 ; Clarh v. Leslie, 5 Esp. 28. 
 
 8 Ec parte M'Key, i Ba. and B. 405. » Tiirner v. Frishy, i Stra. 168. 
 
 i» Jenner v. WaVter, 19 L. T. 398. " Selps v. Clayton, 10 .lur. N. S. 1 184. 
 
 ^ Hart V. Prater, i Jur. 623. 
 
 " On analogy to the liability of the husband of a married woman for her legal 
 expenses when held to be necessaries. Her solicitor must show that they were reason- 
 ably incurred in her behalf. See Part I. Husband and Wife, chap. xiv. p. 315. 
 ■ " Duncombe v. Turlcridge, 9 Vin. Abr. Enf 2, 392. 
 
 15 Be Soltykoff, ex parte Margrett, 60 L. J. Q. B. 339. 
 
 1" HaTids v. Uaney {ubi sup.). '' Berolles v. Bamsay, Holt, N. P. 77. 
 
 18 Broolcer v. Scott, 11 M. & W. 67 ; Wharton v. Mackenzie, Cripps v. Bill, 13 
 L. J. Q. B. 130. '^ Bryant v. Bichardson, L. E. 3 Ex. 93 n. 
 
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 necessaries. 
 
750 INFANTS. [part iv. 
 
 fifteen guineas, though the infant was a baronet's son and moved 
 in the upper ranks of society ; ^ highly ornamented betting books 
 costing -^15, and ornamental jewelry and stationery of very ex- 
 pensive nature ; ^ and an expensive hunter.' As, the trading con- 
 tracts of infants are void/ wares furnished to him to be sold 
 again, or work done for him in the way of his trade, cannot be 
 recovered for as necessaries, though he may gain his living by the 
 business.^ 
 Infant already The next question to be considered is whether, if an infant be 
 
 supplied with i t ■,• t • ■• .1 t 1. 
 
 necessary already supplied With necessary articles, a tradesman, not knowing 
 ar ic es. ^j j^jg being so supplied, furnishes him with other articles of like 
 
 description, the latter are necessaries so as to entitle the tradesman 
 to recover, and whether the tradesman is bound to make inquiries 
 concerning the infant's income and general circumstances. The 
 current of authority ran very strongly in the direction of holding 
 that a tradesman supplied an infant on credit at his own risk, and 
 that if the latter was already properly supplied with like articles, 
 Tradesman the former could not recover." The tradesman was not bound to 
 at his peril. make inquiries, and a non-suit or adverse verdict did not neces- 
 sarily follow on his neglect to do so, but he supplied the infant at 
 his peril.' Evidence used to be admitted to show that the defend- 
 ant was so supplied,* but in Byder v. Womhwell,^ Kelly, C.B., at 
 the trial, and the Court in banc (Kelly, C.B., Channell, and Pigott, 
 B.B.,Bramwell, B., dissenting) upheld the Lord Chief Baron, aad 
 refused to admit such evidence, and the Court of Exchequer 
 Chardber forbore on appeal to decide the point as being unneces- 
 sary, saying it was a question of some nicety, and the authorities 
 by no means uniform, adding, " If ever the point again arises, the 
 Court before which it comes must determine it on the balance of 
 authority and on principle, without being fettered by a decision of 
 this Court." '" In a later case, however, the Court following 
 the earlier decisions, and not that of Byder v. Womhwell on this 
 point, held that evidence that the defendant was already sufficiently 
 supplied with articles of the same kind ought to be admitted and 
 left to the jury, though the plaintiff was ignorant of his being so 
 supplied, and that the jury are to judge of the effect of that supply 
 on the question of necessaries." This decision was followed in a 
 
 1 Byder v. Womhwell, L. R. 4 Ex. 32, overruling S. C. , L. R. 3 Ex. 90. 
 
 - Termer v. Walker, 19 L. T. 398. 
 
 ^ Shrine v. Gordon, Ir. Eep. g C. L. 479. 
 
 '' Ex parte Jones, lie Jones, 18 Ch. D. 109. 
 
 ^ DUh V. Keighlei/, 2 Eep. 480 ; Lowe v. Griffith, i Scott, 458. 
 
 ^ Bainhridcje v. Pickering, 2 W. Bl. 1325 ; Ford v. Fothergill, 1 Esp. 211 ; Foster 
 V. Redgrave. L. R. 4 Ex. 35 n. ' Brayshaw v. Eaton, 5. Bing. N. C. 231. 
 
 ^ Burghart v. Angerstein, 6 C. & P. 690. ^ Vbi sup. 
 
 '" Per "Willes, J. , who delivered the judgment of the Court, L. E. 4 Ex. 42, 
 
 ^1 Bailies (or Barnes) v. Toye, 13 Q. B. D. 410. 
 
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CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 751 
 
 later case by members of the Court of Appeal sitting as a Queen's 
 Bench Divisional Court.' 
 
 The mere fact of an infant having an income out of which he could 
 pay ready money for goods supplied is not equivalent to his being 
 actually supplied, nor prevents him from contracting for necessaries 
 on credit." Again, the apparent means and an ostentatious display Ostentatious 
 on the part of the infant do not render it any the less necessary for ofXf Jndaift"' 
 the tradesman to inquire into his circumstances. The case of '^°^^"°'®''?'''''' 
 
 '■ . tradesman to 
 
 Dalton V. Gib, appears to be an authority for the proposition that recover, 
 the apparent means of the buyer are a material element in deciding 
 whether the tradesman ought or ought not to have made inquiries ; 
 but the decision may be referred to other grounds, that the pur- 
 chase of the goods were sanctioned by the mother, and that the 
 infant herself had told the plaintiff that she had expectations. 
 
 Where an infant resides with his parents or guai'dians who infant living 
 provide such things as appear to them to be proper, so that he is gnari^jan™* ""^ 
 not destitute of real necessaries, he cannot be bound for what 
 under other circumstances might be necessaries, ou the ground that 
 what is sufficient and proper must be left to the diso-etion of those 
 who have the custody and control of the infant : thus, if a father 
 provide his infant child with proper clothing, clothes furnished to 
 the infant are not necessaries.* If a tradesman supplies an infant 
 under such circumstances with goods, he does so eminently at his 
 own risk, and has the onus of proof of necessaries cast upon him, 
 for it is presumed that when an infant resides at home he is pro- 
 perly maintained.^ It would be otherwise if the infant were eman- 
 cipated from such control. 
 
 These three last considerations may be thus summed up. The Summary. 
 tradesman is not bound to inquire into the income or circumstances 
 of the infant, or whether he is already supplied with like articles. 
 His non-inquiry would not prejudice his right to recover, if the 
 goods supplied were necessaries, any more than his inquiry (in 
 which he was deceived) would entitle him to recover if the goods 
 supplied were not necessaries. In short, he trusts the infant at 
 his peril. The apparent means or ostentatious display of the infant 
 do not render it less risky for the tradesman to trust him ; and 
 where the infant resides with his parents or guardians, the onus 
 of proof of necessaries is cast upon the plaintiff Money lent to 
 
 ^ Johnstone v. Marks, 19 Q. B. D. 509. 
 
 ^ BurghaH v. Sail, 4 M. & W. 727, in which Ilortara v. Hall, 6 Sim. 465, decided 
 to the contrary, was doubted, and it may be considered to be no longer Jaw. 
 
 ^ 7 Scott, 117. The facts of this case were ; The mother of the infant daughter, 
 the defendant, sat in her carriage while her daughter purchased expensive goods at the 
 plaintiffs shop ; some of the goods were taken away in the carriage, others delivered 
 at the hotel where the mother and daughter were residing. 
 
 " Cook V. Deaton, 3 0. & P. 114. 
 
 •'' Bainhridye v. Piehering {ubi sup.) ; see also Brayshcm v. Eaton (uhi sup.). 
 
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752 INFANTS. [part iv. 
 
 an infant to be laid out in the purchase of necessaries, and which 
 has been so laid out, cannot be recovered by the lender, for by 
 lending the /money to the infant he has put it in his power to mis- 
 apply it ;' but if the money be laid out in necessaries under the 
 eye of the lender, the latter may recover it.^ In equity, however, 
 an infant who borrowed money, and applied it towards payment of 
 his debts for necessaries, was liable to refund it, though not at 
 law.^ As the principles of equity now prevail in eases where they 
 clash with those of law, a lender's claim will be upheld at law where 
 it could have been upheld in equity.* Advances made on account 
 of a debt due to an infant to procure him necessaries have been 
 held good and valid.* 
 
 An infant's bond with a penalty,' or an account stated,' or bill 
 of exchange ° given for necessaries supplied,' or a promissory note 
 for price of furniture,^" does not bind him ; and his deed binding 
 his reversionary interest in realty in respect of advances for their 
 purchase is voidable." He may bind himself by a bond without a 
 penalty ; ^^ and possibly by a note or instrument not negotiable.'^ 
 An acknowledgment by an infant of a debt for necessaries is enough 
 to take it out of the Statute of Limitations." 
 
 American law. The American law on this subject is stated to be as follows : 
 " An infant is not bound by any express contract for necessaries 
 to the extent of such contract ; but is bound only on an implied 
 contract to pay the amount of their value to him ; that when the 
 instrument given by him as security for payment is such that, by 
 the rules of law, the consideration cannot be inquired into, it is 
 void and not merely voidable ; that whenever the instrument is 
 such that the consideration may be inquired into, he is liable 
 thereon for the true value of the articles for which it was 
 given." '* 
 
 Contracts of Contracts of Service. — Contracts of service entered into by 
 
 infants, whether by deed of apprenticeship or in the way of 
 ordinary hiring, domestic or otherwise, are valid and binding 
 upon them unless manifestly to their prejudice. If to their pre- 
 
 1 Darby v. Boucher, Salk. 279. - Ellis v. Ellis, 5 Mod. 368. 
 
 ■* Marlow v. Pitfeild, i P. Wms. 558. 
 
 ■• See the analogous case of husband liable in equity for money advanced to wife for 
 necesBariea ; Deare, v. Soutten, L. R. 9 Eq. 151. 
 
 5 Bedgley v. Holt, 4 C. & P. 104. 
 
 * Bearahy v. Cuffer, Godb. 219; Co. Litl. 172 a. 
 
 !■ Williams v. Moor, 11 M. & W. 256 ; 37 & 38 Vict. c. 62, s. i. 
 
 8 Williamson v. Watts, i Camp. 552. 
 
 s Me Soltylcoff, ex parte Margrett, [1891] I Q. B. 413. 
 
 " Valentini v. Canali, 24 Q. B. D. i'66. " Martin v. Gale, 4 Ch. D. 428. 
 
 ^'^ Mussel V. Lee, I Lev. 85. 
 
 '3 See Campbell's note to WiUiomson v. Watts {uhi sup.) ; Co. Litt. 172 a. 
 
 " Williams v. Smith, 4 El. & Bl. 180. 
 
 ^'^ Sob. Dom. Rel., s. 414, citing Eeeve, Dom. Eel., ss. 229, 230. 
 
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 service. 
 
CHAP. II.] ACTS AND CONTRACTS OF INFANTS. 753 
 
 judice, they are not binding upon them, but may be avoided at 
 their option. The principle on which those contracts are held 
 binding on an infant is that they are not merely beneficial to him, 
 but partake of the nature of " necessaries " for him, as providing 
 for his maintenance or education and fitting out in some trade or 
 profession.' A reasonable restriction, such as that the infant 
 should not after twenty-one set up a like trade within immediate 
 neighbourhood of the master, will, if acquiesced in by the infant 
 on attaining majority, be enforced.^ It has been seen that an Grounds for 
 ordinary contract {e.g., a trading contract and the like), though ficlaroOTtrTets 
 beneficial to the infant, is not binding upon him. These bind- of service bind- 
 ing contracts of service are an extension of the principle that 
 contracts of infants for necessaries (and so clearly for their bene- 
 fit) are valid. Now a contract of service is not a " necessary " in 
 the ^ense that unless the infant entered into it, either he must 
 perforce starve, or his position in life be necessarily seriously i 
 affected, but it partakes of the nature of a " necessary." In 
 truth here, as in the case of marriage, nature dictates to the law 
 what rules to lay down. Youth is the best time to learn ; the 
 mind and intellect readily expand ; and the body, long before the 
 age of majority is reached, is capable of sustaining much physical 
 labour and fatigue. Again, the actual interests of the infants 
 are served ; they acquire a knowledge of handicrafts and trades 
 which will stand them in good stead in after-life. They, too, 
 have the means of earning a livelihood, and acquiring a sense of 
 independence which will render them better able to take care of 
 themselves in future life than if they were obliged to wait till 
 they had reached twenty-one before they could learn a trade or 
 earn a wage. The interests of society require that these con- 
 tracts of service between masters and infant apprentices, and 
 employers and the infant employed, should be as binding and 
 valid as between adults, provided that they are not prejudicial to 
 the infants ; for if the latter could at any moment declare the 
 contract no longer binding, trade and commerce would be 
 endangered; employers never could be sure that their orders 
 would be executed, and might have their works suspended from 
 want of labour. To avoid this danger and harmful results, a 
 contract of service to which one of the parties is under age ought 
 to be and has been made binding on the latter unless manifestly 
 to his prejudice. But in this as in other matters the inexperi- infant not 
 ence and weakness of youth are to be protected and not taken equitable con- 
 advantage of ; consequently when the infant has been imposed '■"act. 
 
 ' See Walter v. Everard, [1891] 2 Q. B. 369. 
 
 2 Cornwall v. Hawkins, 41 L. J. Ch. 4^5; Hvans v. Ware, [1892] 3 Ch. 502. 
 
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754 
 
 INFANTS. 
 
 [PAHT IV. 
 
 Contract of 
 service 
 pHmd facie 
 beneficial. 
 
 Test whether 
 contract bind- 
 ing or not. 
 
 upon, and has entered into a contract manifestly to his disadvan- 
 tage, it is only fair and equitable that he should not be bound by 
 it, but should have the power to " resile from it " (to use a 
 Scotch phrase) at his option. But to hold even an inequitable 
 contract as void ab initio is a doubtful advantage to the infant,, 
 because a void contract is one that is not binding upon 'either 
 party to it ; and so the master equally with the infant servant 
 could put an end to it at any time, and elect not to be bound by 
 the covenants which told most against him; that is, he might 
 refuse to pay wages for services rendered up to the time of 
 setting aside the contract. The better opinion is that these in- 
 equitable or prejudicial contracts of service are not void, but only 
 voidable at the option of the infant. 
 
 A contract of service by an infant is considered primd facie to 
 be for his benefit ; and he may bind himself by a deed of appren- 
 ticeship,' or contract of ordinary service, as a domestic servant, 
 farm labourer, operative and the like,^ unless it is manifestly dis- 
 advantageous to him, as where the master might stop the work 
 whenever he chose, and retain the wages during the stoppage,^ or 
 where the master should not be liable to pay wages to the 
 apprentice so long as his business should be interrupted or im- 
 peded by or in consequence of any turn-out, but that the appren- 
 tice during such turn-out might employ himself in any other 
 manner or with any other person for his own benefit ; * or where 
 a penalty or forfeiture is attached to the hiring.^ The inequit- 
 able and prejudicial terms must appear on the face of the con- 
 tract, and not depend upon considerations outside of it ; and the 
 mere fact that more advantageous terms might have been secured 
 for the infant does not render the contract not binding, if the 
 actual terms were not exacting, hard, and disadvantageous to 
 him, more especially if there were a justification for their presence 
 in the necessities of trade and the labour market." Though an 
 infant apprentice cannot be sued on his covenants of service,' or 
 
 ^ Bex V. Arundel, J M. & S. 257. 
 
 2 Keane v. Boycott, 2 H. Bl. 511 ; Bex v. Chillesfard, 4 B. & C. 94; Wood v. 
 Fenvnck, 10 M. & W. 195. 
 
 ? Beg. V. Lord, 17 L. J. M. C. 181. 
 
 ■* Meakin v. Morris, 12 Q. B. D. 352. 
 
 ^ Co. Litt. 172 a; Beg. v. Lord {uii sup.). See ante, p. 733. 
 
 ^ Leslie' t. Fitzpatrich, 3 Q. B. D. 229 . The accuracy of the test of the validity 
 of the contract laid down in this case has been doubted by the Queen's Bench Division 
 in Meahin v. Morris {ubi sup.), where clearly the contract was not generally for the 
 infant's benefit ; but it would seem that, notwithstanding a contract might be in part 
 disadvantageous to an infant, yet, if on the whole it was clearly beneficial, to hold it 
 enforceable against him would not be a violation of tbe principle of law that an infant 
 must be protected against rash and injurious engagements. See Esher, M.R., in Corn 
 V. Matthews, [[893] I Q. B. 314; Clements v. London and North- Western By. Co.,. 
 [1895] 2 Q. B. 482. 
 
 ' Gylbertv. Fletcher, Cro. Car. 179. 
 
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CHAP. ii.J ACTS AND CONTRACTS OF INFANTS. 755 
 
 restrained by injunction from a breach of them/ but must in 
 certain cases be proceeded against in a court of summary juris- 
 diction/ yet if an infant enter into an ordinary contract of 
 service which is beneficial to him by which he engages not to do 
 certain acts detrimental to his employer on attaining majority, he 
 will be restrained by injunction from committing a breach of that 
 engagement after he reaches majority.^ But it is now settled 
 law that where a master in an apprenticeship deed secures for 
 himself the right of not paying wages or discontinuing the 
 instruction of the apprentice, whether at his own free will, or by 
 reason of strikes or lock-outs in the trade or profession, such 
 stipulation as against the infant and his sureties makes the con- 
 tract unenforceable either in law or equity/ and the contract is 
 bad for all purposes ; thus, action on it would not lie against a 
 third person for enticing the apprentice away/ But where some 
 provisions are disadvantageous yet on the whole the contract is 
 beneficial for the infant, it will be held binding on him." 
 
 An infant may be bound apprentice to another infant ' (in To whom 
 which case the contract is voidable) ; to his own father,' or bound ap- 
 mother ; ' to his master and his executor or administrator ; and if P'^<*°*"=®- 
 the latter carry on the trade and afford as good instruction as that 
 of the master, the apprentice cannot refuse to serve, and may be 
 punished for deserting his service till the period of his articles is 
 up, or he has disaffirmed on reaching majority.'" 
 
 A father has no common law right to bind his child as an 
 apprentice," but the latter must execute the indenture as a 
 proof of consent to be bound, either in person,'^ or by agent." 
 There is a statutory exception to this rule, for under the Poor 
 Law Act the guardians of unions or parishes have the power to 
 bind as apprentices pauper children under twenty -one within 
 their jurisdiction." But if any undue advantage were taken of 
 the infant, the covenants would not be enforced against him. 
 
 1 De Francesco y. Barnum, 43 Ch. D. 165 (Chitty, J.), and 45 Ch. D. 430 
 (Fry, L.J.). ^ Under 38 & 39 Vict. c. 60, s. 5. 
 
 '' Cornwall v. Hawkins, 41 L. J. Ch. 435; Fellows v. Wood, 59 L. T. 513; 
 Evans v. Ware, [1892] 3 Ch. 502 ; and see Brown v. ITarper, 68 L. T. 488. 
 
 * Meg. V. Lord (ubi sup.); Meahin v. Morris (uhi sup.); Ve Francesco v. 
 Barnum {ubi sup.); Com v. Matthews (ubi sup.). In the case of De Francesco v. 
 Barnum, it is difficult to appreciate the prejudice suffered by the infants under their 
 contract of apprenticeship. 
 
 * £>e Francesco v. Barnum, 45 Ch. D. 430. 
 
 ^ Clements v. London and North- Western B;/. Co. {uhi sup.). 
 
 ' Bex V. St. Petrox, 4 T. R. 196. ^ Bex v. Ohillesford {ubi sup.). 
 
 s Gilbert v. Schwenck, 14 M. & W. 488. 
 '" Cooper y. Simmons, 31 L. J. M. C. 138. 
 " Bex V. Arnesby, 3 B. & Aid. 584. 
 12 Ibid. ; St. Nicholas v. St. Botolph, 31 L. J. M. C. 258. 
 '' Bex V. Longnor, 4 B. & Ad. 647. 
 
 " See 42 Geo. III. 0. 46 ; 56 Geo. III. c. 139 ; 3 & 4 Wm, IV. 0. 63 ; 7 & « Vict, 
 c. 101, SB. 12, 13 ; 14 & IS Vict. c. II. See^os;, Part V. ch. y. 
 
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756 
 
 INFANTS. 
 
 [PAET IV. 
 
 Apprentice- 
 ship of youth- 
 ful offenders. 
 
 Infants on 
 majority may 
 , ratify or dis- 
 affirm con- 
 tracts of 
 apprentice- 
 ship. 
 
 Enlistment of 
 infants. 
 
 As an infant cannot be sued on his covenants,' it is usual for 
 the father or other guardian of the infant to be a party to the 
 indenture and covenant that the infant shall serve ; and the 
 covenantor is liable for the infant's default on this covenant,'' 
 though the latter avoid the covenant at twenty-one.' The only 
 exception to this rule is under the custom of the City of 
 London, where the master can sue his infant apprentice on his 
 covenant.'' 
 
 A youthful offender or child detained in a reformatory or 
 industrial school may with his own consent be apprenticed by the 
 managers or disposed of by emigration, though the period of 
 detention has not expired, and such apprenticing or disposition 
 is as valid as if done by his parents.^ If the child is detained 
 for less than twelve months he cannot be emigrated without the 
 consent of the Secretary of State." 
 
 Contracts of apprenticeship were held voidable at the option 
 of the infants on their attaining twenty-one.' From this it 
 follows that unless they avoided within a reasonable time after 
 coming of age, they were deemed to have ratified them. This 
 would seem to be still the law, notwithstanding the Infants' Eelief 
 Act, 1874.^ These contracts are not within the first section of 
 that Act, for they' were binding by the rules of the common law 
 upon infant parties (until, at any rate, they attained majority).' 
 If not within the first section, they cannot be also within the 
 eflfect of the second, so that ratification of them by the infant 
 parties on attaining majority would be ineffectual. In a case 
 decided after the passing of this Act,'" it was held that these con- 
 tracts were voidable at majority, and that the Master and Servant 
 Act, 1867," did not bring about any alteration in the rule. 
 Further details on this subject will be found in Part V., dealing 
 with the relations of Master and Servant.'"^ 
 
 For social and political reasons, infants are at liberty to con- 
 tract binding engagements to serve the State, both in the army 
 and navy,'^ and when bound are liable to the provisions of the 
 
 ' GyVbert v. Fletcher, Cro. Car. 179. ^ Branch t. Ewington, 2 Doug. 518. 
 
 ' Ouming v. HUl, 3 B. & Ad. 59. 
 
 ^ Horn T. Chandler, l Mod. 271. This custom, it is said, was introduced for the 
 purpo.-e of promoting trade in the City. " 54 & 55 Vict. c. 23, s. i. 
 
 " Ibid. ' Exparte Davis, 5 T. R. 715 ; Wray v. West, 15 L. T. 180. 
 
 8 37 & 38 Vict. c. 62. 
 
 ' See Leslie v. Fitzpatrick, 3 Q. B. D. 229, which was a case decided after Ihe 
 passing of the Act of 1874. '" Moore v. Smith, 39 J. P. 772. 
 
 " 30 & 31 Vict. c. 141, repealed by 38 & 39 Vict. c. 86. This point is not without 
 difficulty, for if the infant cannot disafiSrm this contract during minority, it is one of 
 the few which it is not open to him to disaffirm during that period. The rule may be 
 supported by the theory that this contract is a gutMi'-neoessary for him. 
 12 Chap. V. 
 
 '^ Rex V. Botherjield Greys, i B. & C. 345 ; Rex v. Walpole St. Peters, Burr. 
 S. C. 638 ; Rex v. Hardwich, 5 B. & Aid. 176, 
 
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CHAP. 11.] ACTS AND CONTRACTS OF INFANTS. 757 
 
 discipline acts, and regulations of their respective services. Infant 
 apprentices, bound for four years and upwards, must be discharged 
 from the army if claimed by their masters within a month from 
 the date of their enlistment.^ 
 
 An infant is liable for torts committed by him ; thus, he is Liability of 
 liable for trespass,^ for slander,^ for wrongfully detaining goods,^ torts. 
 and for embezzling money,' and if he give a charge on his pro- 
 perty on coming of age to avoid being sued in tort for a wrong 
 committed by him during infancy, the charge will be enforced,' 
 But he will not be liable where it is sought to convert an 
 action really grounded on contract into one grounded upon tort, 
 as on a warranty of goods sold,' or for overriding a horse which 
 he hired.' But where he commits a separate and independent 
 wrong apart from the contract, though arising out of the original 
 contract, he is liable, and the plea of infancy affords no defence 
 to the claim of the plaintiff for damages in respect of the wrong.' 
 
 1 42 & 43 Vict. c. 33, s. 92. " Bac. Abr. Inf. H. 
 
 ^ Defries v. Davis, i Bing. N. C. 692. 
 
 * Milh t. Graham, i B. & P. N. R. 140. " Bristow v. Eastman, 1 Esp. 172. 
 
 ' Be Seager, Seeley v. Briggs, 60 L. T. 665. 
 
 ' Mowlett V. Haswell, 4 Camp. 118. ' Jennings v. Bundall, 8 T. E. 335. 
 
 ' Walley v. Holt, 35 L. T. 631 ; Burnard v. Haggis, 14 C. B. N. S. 45. 
 
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CHAPTEE III. 
 
 RATIFICATION AND AVOIDANCE OF ACTS 
 AND CONTRACTS. 
 
 PAGE 
 
 Ratification : 
 
 What is Ratification . . .... 759 
 
 Distinction between New Promise and Ratification 759 
 
 Ratification need not be Foemal .... 760 
 
 Lord Tbntbeden's Act, 1829 : Its Effect . 761 
 
 Infants' Relief Act, 1874: 761 
 
 Ratification aptbe Age Unenfoeceablb . . 761 
 
 New Promise aftbe Age Nbcessaht . . 762 
 
 Infant cannot Specipicallt Enforce Conteact . 763 
 Acts and Conteacts capable of Ratification : Pue- 
 
 CHASE OF Land . ... 764 
 
 Sale of Land . . 764 
 
 Leases .... . . 764 
 
 CoNTiNiriNG Contracts . . 765 
 
 Paetneeship . . . . . 765 
 
 Holding op Shaees . . . 766 
 
 Avoidance : What it is . . 766 
 
 Of Mattees of Record .... . . 767 
 
 Of Matters in Fait : Avoidance must be within 
 
 Reasonable Time 767 
 
 Privilege op Avoidance Personal to Infant only . 76S 
 
 When Infant may Recover back Money Paid . . 768 
 
 Ratification of Eatification of the acts and contracts of infants was formerly 
 aifee™wtiian 0^ more importance than it is at present. Many matters which 
 formerly. conld have been adopted and confirmed by an infant on reaching 
 majority, are now incapable of being ratified by him. The 
 majority of the contracts entered into by infants were not 
 invalid, and only a few which were deemed clearly to his detri- 
 m«nt were void ah initio. Though their contracts were not 
 invalid, yet in order to insure the protection of their youth and 
 inexperience, they were not bound by them if during infancy, or 
 within a reasonable time after attaining majority, they disaffirmed 
 them ; and they were bound where they promised afresh to abide 
 by them, or expressly ratified them, or in certain kinds of con- 
 
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CHAP. III.] RATIFIOATIOX AND AVOIDANCE. 759 
 
 tracts coatinued to derive advantages uader them, which in fair- 
 ness they could not be allowed to retain without being fully- 
 bound by the engagements from which they were derived, though 
 liabilities were incidental thereto. Of void contracts there cannot, 
 of course, be any ratification, and such need not be expressly 
 avoided, for no act on the part of either of the parties can give 
 validity to that which never was valid or binding. A recent 
 Act has made a large number of the contracts of infants void, 
 and, even when their conti'acts are not void but voidable, has 
 rendered any new promise or ratification in respect of them 
 ineffectual. This provision renders any lengthened discussion on 
 the subject of ratification unnecessary. An infant cannot affirm 
 or ratify during minority.' 
 
 Ratification has been defined to be " any act or declaration Ratification : 
 which recognizes the existence of the promise as binding ; as in ^''^^ " ^^■ 
 the case of an agency, anything which recogniaes as binding an 
 act done by an agent, or a party who has acted as agent, is an 
 adoption of it. Any written instrument signed by the party 
 which in the case of adults would have amounted to the adoption 
 of the act of party acting as agent, will in the case of an infant 
 who has attained his majority amount to a ratification."^ " Rati- 
 fication," says Parke, B.,' " is an admission that the party is liable 
 and hound to pay the debt arising from a contract which he made 
 when an infant." It has also been laid down that " a ratifica- 
 tion necessarily has reference to the past, and, as applied to 
 promises made by the person ratifying, a ratification is simply an 
 intentional recognition of some previous promise made by him, 
 and an adoption and confirmation of such promise with the inten- 
 tion of rendering it binding. In other words, a ratification of a 
 voidable promise is a recognition of it and an election not to avoid 
 it but to be bound by it."'' The ratification by an adult of his Katifioation by 
 acts done during infancy is similar to the ratification by a prin- &e.^ done 
 cipal of the acts of his agent— the acts of the agent are not ^i?™f ^^^'the 
 binding till formally indorsed and approved by the principal ; p'^P'^'p'? °^, 
 accordingly, none of the voidable acts and contracts made by an principal of 
 infant were binding on him until he had adopted and confirmed ^"'^ °^ ''^®"'- 
 them on reaching his majority ; though in many cases the ratifi- 
 cation need not have been of a precise and formal nature. 
 
 In the decisions and the statutes dealing with this subject, a Distinction 
 distinction has been drawn between a promise made by an infant promise and 
 
 ratification. 
 
 ' Slator V. Trimble, 14 Ir. C. L. 342. 
 
 "^ Harris T. Wall, 1 Exch. 122. This definition was approved by the Court of 
 Queen's Bench iu Bowe v. Sopwood, L. E. 4 Q. B. i. But see the judgment of 
 Martin, B., in Mawson v. Blane, 10 Exch. 206, 210. 
 
 •^ In Mawson v. Blane (ubi sup.), p. 210. 
 
 * Per Lindley, J., in Ditcham v. Worrall, 5 C. P. D. 410. 
 
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760 INFANTS. [part iv. 
 
 on his attaining majority to abide by his engagement entered 
 into during infancy, and his ratification of it. The promise in- 
 cludes ratification, but ratification does not include a new pro- 
 mise ; " ratification and confirmation mean something more than 
 merely repeating the promise." ' Again, a new and independent 
 promise made after majority, though practically the same as the 
 one made during infancy, is different from ratification; the former 
 requires a fresh consideration to support it, whereas ratification 
 does not necessarily require such new consideration.^ There 
 cannot be any doubt that owing to the efiect of section 2 of 
 the Infants' Relief Act, 1874, the tendency of the Courts will 
 be to find new and independent promises supported by fresh 
 considerations, rather than mere promises relating to the past 
 transaction or ratification, which will be quite inoperative.' 
 Because of this Act there is no need to give instances of what 
 has been held sufficient or insufficient to constitute a ratification 
 of or a new promise to abide by, acts done in infancy, which are 
 within that statute, and so void, for to do so would be of no 
 practical importance, but unnecessary. Instances of practical 
 ratification of other kinds of contracts will be given in their 
 proper places. 
 Ratification In the preceding chapter* it has been laid down that at 
 
 a foi-mai Common law the majority of the acts and contracts of infants, 
 
 were voidable only and not void, and might be ratified or avoided 
 by them on reaching majority. This confirmation of them need 
 not have been in any particular or set method, but the infant 
 might on attaining majority, by his general conduct, or express 
 promise (if the ratification or confirmation was made before action 
 brought),* ratify and confirm his contracts made during infancy ; 
 and his contracts concerning property of a permanent nature to 
 which obligations attach, or which involve continuous rights and 
 duties, and he has taken benefits under them, unless disaffirmed 
 by him within a reasonable time of reaching his majority, were 
 binding on him." The ratification must have been after full 
 knowledge and complete information respecting the transaction,' 
 and he must have known that he was discharged by his 
 nonage." 
 
 ^ Per Ellenborough, C. J., in Cohen v. Armstrong, I M. & S. 724. His lordship 
 thought it more correct to say that infants made new promises after they came of age, 
 rather than ratified their former promises. 
 
 2 Ditcham v. Worrall, 5 C. P. D. 410. 
 
 " See Ditcham v. Worrall [uhi sup.), and the conclusion arrived at by the majority 
 of the Court, with which Coleridge, C.J., did not agree. 
 
 * Chap. ii. Acts and Contracts of Infants. 
 
 ^ Thornton v. lltingworth, 2 B. & C. 824. 
 
 " Goods V. Harrison, 4 B. & Aid. 147. '' Kay v. Smith, 21 Beav. 522. 
 
 '■* Harmer v. KiUivct, 5 Esp. 102. 
 
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 nature. 
 
CHAP. iii.J EATIFIOATIOlsr AND AVOIDANCE. 761 
 
 To affect an alteration of the law the Act known as Lord Lord Tenter- 
 Tenterden's Act ' was passed, which in its fifth section provided ^aufifitioii 
 that " no action shall be maintained whereby to charge any must be in 
 person upon any promise made after full age to pay any debt ^^" "^^ 
 contracted during infancy, or upon any ratification after full age 
 of any promise or simple contract made during infancy, unless 
 such promise or ratification shall be made by some writing 
 signed by the party to be charged therewith." ° Ratification 
 after attaining majority, under this Act, of a debt contracted 
 during infancy, to give the creditor a right of action, must have 
 amounted to a recognition of the debt as an existing liability ; ' 
 and a mere promise to pay it "as a debt of honour" was in- 
 suflBcient.' This provision aifected the ordinary contracts of 
 infants, and required the ratification and new promise to be in 
 writing; but it was never held to apply to infants' contracts 
 afiecting property of a permanent nature, or which were of a 
 continuing character ; nor is there any decision in the books 
 showing that it was to be applied to the promises of marriage 
 made by infants. 
 
 The Infants' Eelief Act, 1874,^ is the statute which now infants' Belief 
 governs the contracts of infants, and by section 2 it provides that "'^ '^'^' 
 " no action shall be brought whereby to charge any person No action to 
 upon any promise made after full age to pay any debt contracted ratification of 
 during infancy, or upon any ratification made after full age of J"*^"''^"™" 
 any promise or contract made during infancy, whether there 
 shall or shall not be any new consideration for such promise or 
 ratification after full age." 
 
 The words of the first section of this Act " are perfectly Effect of 
 general, and apply to all contracts of infants except those which ing'in^ts"*^^^^" 
 are expressly excepted.' So, too, in section 2, there are words nature. 
 of universal application. This section is divided into two parts ; 
 the first provides that an infant's promise made after age to pay 
 any debt contracted during infancy,* shall not be actionable, that 
 is, shall not in any case form a valid consideration upon which 
 an action can be brought ; the second, that his ratification made 
 after full age of any promise or contract made during infancy 
 shall likewise be not actionable. Any new consideration given 
 for such new promise or ratification shall be inoperative.* In an 
 
 ^ 9 Geo. IV. c. 14. Sect. 5 was specifically repealed by 38 & 39 Vict. c. 66 
 (Statute Law Eevision Act, 1875). ^ See Bawley v. Bawley, i Q. B. D. 460. 
 
 2 Bowe T. Hopwood, L. R. 4 Q. B. i. ^ Maccord v. Oshorne, i C. P. D. 568. 
 
 '^ 37 & 38 Vict. 0. 62. "^ See ante,v- 735- 
 
 ' Per Jessel, M.R., in Ex parte Jones, Re Jones, 18 Ch. D, 109. 
 
 " This provision must have been inserted to prevent collusion, and evasion of the 
 Act, or in order that the Courts should not be bound to inquire into the adequacy of the 
 new consideration. 
 
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762 INFANTS. [part iv. 
 
 Irish case,' however, an action was held maintainable by an 
 
 indorsee for value, against the acceptor of a bill of exchange, 
 
 accepted by the latter after attaining twenty-one years of age, 
 
 for a debt contracted during infancy, and after the passing of 
 
 this Act, though not in respect of necessaries. This decision, 
 
 which seems questionable, was based upon the necessity of 
 
 preserving intact the title of negotiable securities in the hands 
 
 of third parties for value. The Court, too, inclined to the 
 
 opinion that as between the immediate parties to the bill the 
 
 action would not lie. That this section is considered by the 
 
 judges to be wide in its operation, and intended to be strictly 
 
 carried out, is evinced by the case in which it was held to apply 
 
 to a ratification after the passing of the Act of a contract made 
 
 during infancy before it came into operation, and the ratification 
 
 deemed inoperative.^ Under Lord Tenterden's Act, a verbal 
 
 ratification of an infant's contract was held inoperative to enable 
 
 a defendant sued by him to set off validly a debt contracted 
 
 during infancy by the plaintiff with the defendant.^ Under that 
 
 Act ratification was possible and effectual if carried out in 
 
 writing ; but under the present Act no ratification, whether 
 
 verbal or in writing, is to be of any efficacy, therefore a fortiori 
 
 an infant's debt or contract cannot now be made the subject of 
 
 A debt owed a set-off or counter-claim. A debt to be set off must be 
 
 iiot"e*set'off. actionable, and as ratification is expressly declared incapable 
 
 of founding an action, an infant's debt or contract, though in 
 
 a sense ratified, cannot be rendered a valid set-off, or found a 
 
 valid counter-claim. 
 
 New promise There must be now an actual new promise ; and the evidence 
 
 now necessary. ^^ Support such new promise must be clear and not merely 
 
 consistent with that which would show a mere ratification of 
 
 the promise made during infancy .'' Thus, where a defendant 
 
 during infancy became jointly with two others indebted to a 
 
 firm who brought an actioif against them after the defendant 
 
 attained his majority to recover the amount of the debt, and he 
 
 compromised the action on terms which included (inter alia) 
 
 that he should give certain acceptances, and one of the bills 
 
 given by the defendant to the plaintiff firm was indorsed by the 
 
 latter to the plaintifi' who was their solicitor in the original 
 
 action and who took the bill with notice of the circumstances in 
 
 which it was given, it was held that the transaction or com- 
 
 1 Belfast Banlnng Co. y. Dolierty, L. E. 4 Ir. C. L. 124. 
 
 2 Ux parte Kibble, Me Onsloio, L. E. 10 Ch. App. 373. 
 ' Bawley v. Bawley, i Q. B. D. 460. 
 
 '' See Lindloy, L.J., in Ditcham y. WorraU, 5 C. P. D. 410; Holmes v. Brierley, 
 59 L. T. 70. 
 
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■CHAP. III.] RATIFICATION AND AVOIDANCE. 763 
 
 promise merely amounted either to a promise after age to pay the 
 debt contracted during his infancy^ or was a mere ratification 
 after full age of the contract or promise made during his 
 infancy.^ But a covenant to repay and an assurance of real 
 property by way of mortgage to secure money lent to an infant 
 may amount to more than a mere satisfaction of the debt incurred 
 in infancy.^ Under the Betting and Loans (Infants') Act, 1 892,' if 
 an infant has contracted a loan which is void in law and has agreed 
 on attaining majority to pay money in respect of such loan, 
 which is not a new advance, such agreement or negotiable security 
 ■representing such agreement shall be void against all persons. 
 
 Another result of an infant's contract being void, and infant cannot 
 ratification on attaining majority ineffectual to found an action, tract by 
 an adult will not now be able to enforce specific performance of f^rmance^^ 
 a contract entered into by him during infancy.^ As a promise 
 to marry has been held to be within this Act, it will be a material 
 fact whether the infant promisor on attaining majority merely 
 Tatifies the old promise or enters into a specific new promise ; in 
 the latter case the promisor will be bound but will not be bound 
 in the former.* 
 
 Since, then, the passing of this Act, any form of ratification of 
 a debt contracted in infancy is powerless to revive it as a good 
 cause of action/ An equitable exception to this has been made Exception, 
 
 T .T ■ J. . • ■ 1 J li. whenfraudu- 
 
 m cases where the infant is m appearance and person an adult, lent lepre- 
 and has made express representations that he is of age with age'has'been ° 
 intent to deceive the person who trusts him ; this is a fraud made, 
 against which equity will grant relief. The undertaking of an 
 infant does not become a debt, but a liability to pay a sum of 
 money; and as under the Bankruptcy Act, 1883," liabilities are 
 provable, the defrauded creditor can, on the majority of the 
 infant, take proceedings in bankruptcy, and prove for the money 
 or amount advanced.^ It seems, however, that the personal 
 appearance of the infant is a material element in such a case, for 
 if his looks are clearly those of one not arrived at maturity, the 
 creditor must be held to have dealt with him at his risk, and 
 ■cannot establish the material fact of deception ; and it has been 
 expressly decided that it is not enough that he has by trading 
 iield himself out as an adult.' 
 
 The practical result of this Act is that there cannot be any Summary, 
 
 ' Smith V. King, [1892] 2 Q. B. 543. 
 
 ' Be Foulkes, Foulkes v. Hughes, 69 L. T. 183. 
 
 ^ 55 & 56 Vict. c. 4, s. 5. "* See Flight v. Bolland, 4 Russ. 298. 
 
 ■'' Holmet V. Brierhy {ubi sup.). ^ Fx parte Kibble (uhi sup.). 
 
 ' 46 & 47 Vict. 0. 52, s. 37. * Ex parte Jones, Be Jones, 18 Ch. D. 109. 
 
 ^ Ibid. See on this point, Maclean v. Dummett, 22 L. T. 710. 
 
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764 
 
 INFANTS. 
 
 [part IV. 
 
 What acts and 
 contracts are 
 capable of 
 being ratified. 
 
 Where infants 
 are not so 
 much con- 
 tractors as 
 purchasers of 
 a thing of a 
 permanent 
 nature. 
 
 Acts and con- 
 tracts con- 
 nected with 
 realty. 
 Purchase of 
 land. 
 
 Sale and con- 
 veyance. 
 
 Leases. 
 
 such complete ratification by a person on attaining majority of his 
 contracts made during infancy so as to render them enforceable 
 by action. However, under Lord Tenterden's Act, which required 
 ratification to be in writing, certain contracts which the infant 
 did not repudiate or disaffirm on reaching twenty-one were by his 
 conduct after that period (whether of a formal or informal nature, 
 though not in writing), though not enforceable by action, held to 
 be ratified and good for all other purposes. So, by analogy, it is 
 submitted (though yet to be judicially decided) that infants' acts 
 and contracts of a like nature will under the Infants' Kelief Act, 
 1874, though not the subject-matter of an action, be equally good 
 and valid for other purposes. 
 
 The acts and contracts to which infants ought to be held bound 
 are such as affect interests in property of a permanent nature 
 with certain obligations attached, to which, as they have derived 
 benefits under their engagements, they ought in fairness to 
 conform, unless they have repudiated their liability within a reason- 
 able and proper time after attaining majority. The persons who 
 enter into them are rather purchasers of a more or less permanent 
 interest than mere contractors. Their position has been thus 
 defined : " They have been treated therefore as persons in a 
 difierent situation from mere contractors, for then they would 
 have been exempt : but in truth, they are purchasers who have 
 acquired an interest, not in a mere chattel, but in a subject of a 
 permanent nature, either by contract .... or purchase, or 
 devolution from those who have contracted, and with certain 
 obligations attached to it which they were bound to discharge.'" 
 In other words, their liability does not arise on a contract, but 
 on a legal obligation arising out of the circumstances of the 
 transaction. These acts and contracts to which obligations are 
 attached may be divided into two classes : (i) Those connected 
 with realty; (2) those not connected with realty, but which are 
 of a continuing nature. 
 
 (i) Purchase of Land. — Where an infant has purchased an 
 estate, unless he disaffirm the purchase within a reasonable time 
 after attaining twenty-one, he will be taken to have ratified it ; a 
 re-sale at majority of property bought during infancy is a con- 
 firmation of the purchase.^ 
 
 If he sell and convey his estate, he must do some act at 
 majority to disaffirm the conveyance, or ratification will be pre- 
 sumed.' 
 
 Where an infant makes a lease or takes a lease which is clearly 
 
 1 Per Parke, B., in North- Western Railway Co. v. M'Micliael, 20 L. J. Ex. 97. 
 - Goocli's Case, L. E. 8 Ch. App. 266. See Whittingham v. Murdy, 60 L. T. 956. 
 ' iSlator V. Brady, 14 Ir. C. L. 61. 
 
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CHAP. III.] RATIFICATION AND AVOIDANCE. 765 
 
 not detrimental to him, he must avoid it within a reasonable and 
 proper time. As a lease is only voidable by him, he may ratify 
 it by continuing to occupy after attaining majority, in which case 
 he wiU be liable not only for rent due since his majority, but also 
 for arrears accrued before majority.' A surrender of a lease being 
 voidable, will be taken to be ratified unless disaffirmed within a 
 reasonable time of reaching majority. Where he has made a 
 lease, he must likewise avoid it within a reasonable time, or he 
 will be held to have ratified it. A year's acquiescence is suffi- 
 cient to confirm it,^ or any act which recognizes it as binding, 
 e.g., making a mortgage subject to the lease,' or acceptance of 
 rent.^ In an old case an infant's saying to the lessee, " God 
 give you joy of it," was held a confirmation ; '" and it seems 
 any act of recognition, as receiving rent during infancy, is so far 
 a confirmation that the lessor cannot determine the lease without 
 notice. 
 
 Gontinuing Contracts. — Where the contract entered into by the Continuing 
 infant is of a continuing nature, unless he repudiate or disaffirm °°^ ™° ^' 
 either before or within a reasonable time after arriving at majority, 
 he will be deemed to have ratified it.' Of such contracts are 
 partnership, the holding of shares, and those of hiring and 
 service. 
 
 An infant, it has been seen, may be a partner,' but his Partnership, 
 contract or agreement in that respect is voidable, but until he ^ggfbfe'not- 
 has repudiated it it is valid and binding on him, and unless he witiistanding 
 
 T -. . , . , . . , . ® , , . ^ Infants' Relief 
 
 disamrm either withm age or within a reasonable time after Act, 1874. 
 attaining his majority, he will be held to have ratified his con- 
 tract. Lord Justice Lindley, in the last edition of his work on 
 Partnership,' on the possibility of an adult ratifying his in- 
 fantile contract of partnership since the Act of 1874, says : " If, 
 when an infant partner comes of age, he is desirous of retiring intention of 
 from the firm, he should express his determination speedily and o^^jority to 
 unequivocally. It is true that by the Infants' Relief Act, F.^ti'^^s^""'^, 
 
 ^ ■'_ •' 'be speedy ana 
 
 1874,° promises made by a person who has attained twenty- unequivocal. 
 one to pay debts contracted before that age cannot be enforced, 
 biit a person who retains a share in a partnership or company 
 cannot retain it without its incidental obligations, and the 
 doctrine of " holding out" is itself sufficient to impose liability upon 
 
 ^ Ketsey's Case, Cro. Jac. 320 ; S. C. liettle v. Elliott, 1 Roll. Abr. 731 ; S. C. 
 Kirton T. Mliot, 2 Bulg. 69 ; Evdyn v. Chichester, 3 Burr. 1717. 
 
 ^ Doe (dem. Bromfield) v. Smith, 2 T. K. 436. 
 
 '' Story V. .Tohmcm, 2 Y. & C. Ex. 586. 
 
 * Smith V. Low, i Atk. 489. ^ Anon. 4 Leon. 4, c. 15. 
 
 " See North- Western Railway Co. v. M'Miehael {ubi sup.) ; Ooode v. Harrison, 
 5 B. & Aid. 147 ; Whittingham v. Murdy (uhl sup.). 
 
 ' See ante, p. 740. ^ P. 84.' " 37 & 38 Vict. u. 62, e. 2. 
 
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766 
 
 INT'ANTS. 
 
 [PAKT IV. 
 
 Holding of 
 shares. 
 
 Contracts of 
 service. 
 
 Avoidance : 
 What it is. 
 
 an adult, although he may not long have attained his majority. 
 This is well exemplified in Ooode v. Harrison.^ There an 
 infant was a member of a firm, and he was known to be a member. 
 After he had attained twenty-one he did not exprefesly either 
 affirm or disaffirm the partnership. He was held liable for debts 
 incurred by his co-partners subsequently to that time. In this 
 case of 6-oode v. Harrison, Best, J., said : ^ " The infant by 
 holding himself out as a partner contracted a continual obligation, 
 and that obligation remains till he thinks proper to put an end 
 to it. He continued that obligation when he became of age .... 
 and if he wished to be understood as no longer continuing as 
 a partner, he ought to have notified it to the world." Such 
 notification is obligatory upon him. 
 
 The like principles hold good in cases where an infant is the 
 holder of shares in any company. He may be a shareholder, but 
 as his contract is voidable, he may disaffirm it within age, and 
 unless he disaffirm it within a reasonable time after attaining 
 twenty-one, he will be deemed to have ratified it ; thus, if he 
 receive a dividend or pay a call after reaching his majority, such 
 acts will be held to amount to a ratification of his contract. 
 The repudiation should be in a clear and unequivocal manner, 
 and non-repudiation will be held equivalent to ratification.' 
 
 If an infant enter into a contract of hiring, as, for instance, 
 employ a solicitor or servant, and continue the employment after 
 reaching twenty-one, he will be liable for remuneration due from 
 that time.^ In the preceding cases the ground of the infant'* 
 liability is that in fairness he ought to confirm the transactions. 
 
 The term voidable contract means a contract which can be 
 avoided or put an end to by the party who has a right to do so.. 
 An avoidance is some later act inconsistent with the earlier act 
 and done with the intention direct or indirect to avoid and' 
 repudiate it.' This is a right which the law has ever insisted 
 shall be preserved to infants in their dealings with others. It is 
 now settled law that an infant may avoid his voidable contracts 
 with practically few or no exceptions, such as for necessaries and 
 the like, either before or within a reasonable time after coming 
 of age ; and what is a reasonable time depends in each case on 
 its circumstances.' Laches in not making himself acquainted 
 with the terms of the contract which he seeks to avoid is gener- 
 ally fatal to the efficiency of his repudiation.' The rule is that 
 
 1 5 B. & Aid. 147. 2 P. 159- 
 
 ' See ante, chap. ii. pp. 741 et seq., for a more full discussion of this question. 
 
 ^ Waldo V. Waldo, 1 F. & F. 173 ; Gfuy v. Burgess, i Smith, 117. 
 
 ^ See Inman v. Inman, L. R. 15 Eq. 260. 
 
 " Edwards v. Garter, [1893] ^pp. Cas. 300. ' Ihid. 
 
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CHAP. III.] RATIFICATION AND AVOIDANCE. 767 
 
 matters in fait, that is, not of record, he shall aroid either within 
 
 age or at full age, but matters of record only within age.' Thus, Matters of 
 
 the old processes known as fines and recoveries were valid and ™''°'^'^- 
 
 binding on infants unless set aside by them during infancy. So 
 
 a judgment in law is binding on him unless he gets it set aside 
 
 on the ground of infancy,^ but the Court is not bound to set it 
 
 aside if it thinks the infant disentitled to the indulgence.' A 
 
 judgment of the Court for past maintenance of an infant has been 
 
 decreed to bind his inheritance, on the principle that a judgment 
 
 for necessaries could be obtained against his real estate ; * but 
 
 this is a principle which is not unquestioned.* 
 
 Matters in fait may be avoided either within age or within a Matters in /ait. 
 reasonable time after attaining twenty-one. An infant's final and Avoidance 
 conclusive election cannot be made till he reaches majority ; ° for "asoDable" '" 
 if he avoid within age, his avoidance may not be conclusive, for ''"<' ^f'""^ 
 
 . . . attaining 
 
 on reaching majority he may disaffirm his avoidance ; '' but where majority. 
 it would be more to hia prejudice to affirm than to avoid, it would 
 be necessary to produce clear and unmistakable evidence of his 
 having revived the contract.* On the other hand, where the 
 act done by the infant is complete and past, like the conveyance 
 of an estate executed by him,' or where his contract is of a 
 continuing nature, such as a partnership or the holding of shares, 
 he must as clearly and unequivocably demonstrate his repudiation 
 of liability.'" Thus, if an infant shareholder does not repudiate 
 his shares either whilst he is an infant or within a reasonable 
 time after he attains twenty-one, and in an unmistakable manner, 
 he will be liable to pay calls, or to be put upon the list of con- 
 tributories," unless the company was in process of being wound 
 up at the time he became possessed of or interested in the 
 shares.'^ But there is an important difference between the Difference 
 acquiescence of a shareholder and that of a contributory ; " if acquiescence 
 a man allows his name to remain on the register of shareholders J^jY^*"^ 
 for a length of time, that may raise an equity against him to that of a con- 
 have it kept there, but I cannot see that his leaving it on the " " °'^' 
 list of contributories raises any similar equity against him. His 
 allowing it to remain there is, indeed, capable of being used as 
 
 1 Co. Litt. 380 6. ^ Henri/ v. Archibald, I. R. 5 Eq. 559. 
 
 ' Wright v. Hunter, I L. J. K. B. 0. S. 248. 
 
 ■* Be Hmoarth, L, R. 8 Ch. App. 415. 
 
 ^ See Cadman v. Cadman, 33 Ch. D. 397. 
 
 ^ North-Western Railway Co. v. M'Michael, 20 L. J. Ex. 97. 
 
 '' Zouch V. Parsons, 3 Burr. 1794 ; Slator v. Trimhle, 14 Ir. C. L. 342 
 
 8 Salcer's Case, L. R. 7 Ch. App. 115. ' /:^lator v. Bradij, 14 Ir. C. L. 61. 
 
 '" Ooode V. Harrison (ubi sup.) ; Cm-h and Bandon Bailmay Co. v. Cazenom, 
 10 Q. B. 935; Dublin and WicUow Railway Co. v. Blade, 8 Ex. 181 ; Baler's Case 
 ubi sup. ) ; Whittingham v. Murdy, 60 L. T. 956. 
 " Lind. Comp. 810, and the cases there cited. 
 '- Shrapnell's Case, cited in Lind. Comp. 810. 
 
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768 ' INFANTS. [part iy. 
 
 evidence against him that it was rightly placed there." ' So, 
 as a partner, unless he disaffirm within a reasonable time after 
 attaining twenty-one, he will be liable for the partnership debts 
 incurred after he has reached majority." Again, in a contract 
 of service, the infant must avoid his contract in a proper manner, 
 and not merely by implication ; and the running away of an 
 apprentice after attaining twenty-one is not a proper avoidance 
 of the contract of service.' If an infant enters into a contract 
 of service which is beneficial for him in which he binds himself 
 not to do a particular act on the termination of the service, though 
 on reaching majority he may avoid his contract, yet he will be 
 restrained from committing a breach of that part of the contract 
 which binds him not to do the particular act ; ■* and if he continues 
 in the service some time after attaining majority, an entirely 
 new contract as an adult will be inferred.'* 
 Privilege of The privilege of avoiding his contracts is one which is personal 
 
 eonal only to to the infant and his representatives ; ° therefore, though the con- 
 represe^nta-'"'' *^^<^* ^® Voidable, yet it shall bind the person of full age.^ His 
 tives in blood representatives must be privies in blood and descent to him, and 
 not merely privies in estate. Thus, if an infant tenant in fee or 
 in tail convey his estate, his heir may enter and avoid the con- 
 veyance.* Mere privies in estate cannot set aside his acts; 
 " therefore if donee in tail within age makes a feoffment in fee 
 and dies without issue, the donor shall not enter, because there 
 was privity between them only in estate, and no right accrued to 
 the donor by the death of the donee. So if two joint tenants in 
 fee be within age, and one makes a feoffment in fee of his moiety 
 and dies, the survivor cannot enter by reason of the infancy of 
 his companion, for by his own feoffment the jointure was severed 
 so long as the feoffment remains in force." ' Privies in law can- 
 not set them aside, as a lord by escheat."" 
 When, on If an infant avoids a contract, and has derived no benefit from 
 
 contra°t°^ °^ it' ^® is entitled to recover back any money paid by him in part 
 infant entitled performance of it, or if there has been a total failure of considera- 
 
 to recover back ^ ' .... ,. 113 
 
 money paid, tion, and there can be a reshtuho %n integrum on his part," and 
 
 ^ Per Turner, L.J., in Shewell's Case, L. E. 2 Ch. App. 387. 
 
 2 Goode V. Harrison, 5 B. & Aid. 147. 
 
 ' See Bex v. Evered, 16 East, 27 ; Gray v. Coohson, 16 East, 13. 
 
 * Fellows V. Wood, 59 L. T. 513. ^ Brown v. Harper, 68 L. T. 488. 
 
 ® Keane v. Boycott, 2 H. Bl. 511. "In short, the disabilities of an infant are 
 intended by law for his own protection, and not for the protection of the rights of third 
 persons ; and his acts may therefore, in many cases, be binding upon him, although 
 the persons under whose guardianship, natural or positive, he then is, do not assent to 
 them." Per Story, C.J., in United States v. Bainhridge, i Mason, 83. 
 
 '' Bao. Abr. Inf. ' Wldttingham's Case, 8 Rep. 43. 
 
 8 Wldttingham's Case {vii sup.). ^° Ibid. 
 
 ^' Corpe V. Overton, 10 Bing. 253 ; Hamilton v. Vaughan-Sherrin Electrical 
 Engineering Co., [1894] 3 Ch. 589. 
 
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CHAP. III.] RATIFICATION AND AVOIDANCE. 7G9 
 
 there may be a failure of consideration as to the principal agree- 
 ment, though the infant may have received a benefit under some 
 collateral stipulation ; ' but he cannot do so unless he restore the 
 party contracting with him to the same position as if there had 
 been no contract : accordingly, if an infant take a lease and 
 occupy, he cannot on avoiding the lease recover the premium 
 psdd for it ; ° or if he uses and consumes things for which he has 
 paid he cannot under the Infants' Eelief Act, 1874, recover 
 back the money he has paid for them, though the contract in 
 respect of which the money was paid be declared void and set 
 aside ; ' or if he becomes and acts as a partner, he cannot recover 
 the money paid for the partnership ; * again, if he insure his life, 
 he cannot recover the premiums.* Of course, as in the case of 
 adults, where there is a total failure of consideration, and the 
 other party to the contract can be restored to his original posi- 
 tion, the infant may recover whatever he may have paid." 
 
 1 Everett v. WUkins, 29 L. T. 846. " Holmes v. Bhgg, 8 Taimt. 508. 
 
 ^ Vahntini v. Canali, 24 Q. B. IJ. 166. 
 
 * Ex parte Taylor, 26 L. T. 0. S. 266. ■' Buny. Life Ass. 346. 
 
 * Corpe V. Overton [uhi sup.). 
 
 3C 
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CHAPTEK IV. 
 
 MARRIAGE SETTLEMENTS OF INFANTS. 
 
 PAGE 
 
 Settlements of Infants not under Infants' Settlements 
 
 Act, 1855 770 
 
 Female Infant, Male Adult 7;i 
 
 Realty ... .... . 771 
 
 Peesonalty .... . . 772 
 
 Wife's Election on Attaining Majority 773 
 
 Male Infant, Female Adult 775 
 
 Settlements under Infants' Settlements Act, 1855— 
 
 How Made 77& 
 
 Practice in Petitions under the Act . . . 778 
 
 Settlement that of Infant not of the Court . 77S 
 qu^rb whether couet has power to sanction 
 
 Binding Post-kuptial Settlement , . . 778 
 
 Not within Infants' Relief Act, 1874 . . . 779 
 
 The marriage settlements of infants constitute a subject which 
 might have been discussed in the second chapter of this present 
 part, but in order to obtain a comprehensive view of the matters 
 arising in connection with them it has been thought advisable to 
 treat them as a whole. 
 
 There are two classes of settlements by infants : (i) Those not 
 under the Infants' Settlements Act, 1855 ;' (2) Those made in 
 pursuance of the provisions of that Act. 
 Settlements of (i) The general incapacity of an infant to contract is the foun- 
 nnder Infants' dation of the rule that an infant, male or female, cannot irrevocably 
 Act'^iScT'^ under all circumstances bind his or her property of whatsoever de- 
 Genetai scription by a marriage settlement ; and the marriage agreement, 
 
 infantTto " evcn if beneficial, may be set aside on repudiation within a reason- 
 contract. ^IjJq ^Jjjjq after attaining majority, when he or she may sell and 
 dispose of the property intended to be affected by the agreement.^ 
 It was, however, in earlier times thouglit that because the infants 
 could contract validly to marry, therefore contracts by them dealing 
 with their property to be afifected by marriage would also be valid. 
 Where a settlement is for tlie benefit of the infant it is not void 
 
 1 18 & 19 Vict. i;. 43. ^ See Edwarch v. Garter, [1893] Apf. Cas. 360. 
 
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CHAP. IV. J MAREIAGE SETTLEMENTS. 771 
 
 but voidable, and if sought to be repudiated, repudiation must take 
 place within a reasonable time after attaining majority, and what 
 is a reasonable time depends upon the facts of each case.' The 
 Court of Chancery never has had inherent jurisdiction to compel 
 an infant, whether a ward of Court or not, to make a settlement 
 of his or her property on marriage.^ An infant cannot make a 
 binding settlement of his or her property on consideration of a 
 third person making a competent settlement on him or her;' and 
 the consent of parents or guardians to the marriage, and their 
 approbation of the settlement confers no binding force on it.^ The 
 majority of the authorities are connected with the cases of female 
 minors, so they will be treated first. 
 
 Female InfaM,Male Adult. — The power of making a valid settle- Female infant, 
 ment depended upon the nature of the property to be settled; and ""^ ® ^ "^ '■ 
 the canon by which the validity of the settlement could be tested 
 was the interest of the husband in the property of the wife. Where 
 the husband had an absolute interest by operation of law in the 
 property intended to be settled, the settlement of such was binding 
 on both, for the settlement was in effect his settlement and not 
 hers;* where, on the contrary, he had no interest in the property of 
 his wife, the latter on attaining her majority could set the arrange- 
 ment aside. A female infant could not make a binding settlement Realty. 
 of her real estate, because her husband by law took only a limited 
 interest in her real estate.'' If she survive her husband her power 
 over her realty is the same as if no settlement had ever been made. 
 If her husband survive her, and she on her majority has made no 
 disposition ivier vivos, or testamentary as she now can,' and he has 
 had a child by her capable of inheriting, he will become tenant by 
 the curtesy.^ It is quite clear law that she cannot, apart from any 
 statutory authority, make a binding settlement of her property. 
 Under the Conveyancing and Law of Property Act, 1881," the 
 estate of an infant held in fee or on lease is settled estate, and 
 if a female infant marry, her trustees are to stand possessed 
 of the accumulated fund arising from the income of the land 
 and from investments of the income in trust for her separate 
 use.'" 
 
 But there has not been a consensus of opinion on this point. 
 
 ^ See Edwards v. Carter (ubi sup.). 
 
 ' Field V. Moore, 24 L. J. Ch. 161 ; lie Leigh, Leigh >. Leigh, 40 Ch. D. 290 ; 
 Seaton V. 8eaton, 13 App. Cas. 61. ■' Durnford v. Lane, i Bro. C. C. 106. 
 
 * Clough V. Ckiugh, 5 Ves. 717. 
 
 ^ Per Leach, M.E., in Simson v. Jones, 2 Euss. & Myl. 365, 376. 
 
 •> Durnfordv. Lane {ubi sup.) ; Milner v. Lord Rariwood, 18 Ves. 259 ; Stamper 
 V. Barker, 5 Madd. 164 ; Pimm v. Insall, 7 Ha. 193. Field v. 31oore (uhi svp.) 
 See Peach. Sett. 26-28. ' 45 & 46 Vict. c. 75, <i, 1. 
 
 * See ante. Husband and Wife, chap. xi. pp. 216 et seq. 
 ' 44 & 45 Vice. e. 41. 1" Sect. 42. 
 
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772 
 
 INFANTS. 
 
 [PAET IV. 
 
 When infant 
 bound. 
 
 Personaltv. 
 
 Separate pro- 
 perty not 
 bound. 
 Alteration 
 effected by M. 
 W. P. Act, 
 
 Lords Macclesfield ' and Hardwicke ^ held that she could make a 
 binding settlement of her realty. Lord Nottingham was of opinion 
 that she could not contract to bind her real estate ; ' this was 
 followed by Lord Thurlow, who expressly decided that an infant 
 could not enter into a binding marriage settlement, and if he did 
 nothing on attaining majority to affirm his contract, he could set 
 it aside.'' This reasoning was adopted by Lord Bldon, who held 
 that the principle of infantile incapacity applied equally to males 
 and females.* It has been held that an agreement by the wife 
 disposing of her chattels real was binding, because the husband 
 had complete control over his wife's leaseholds." The wife was, 
 however, practically bound during her coverture, because her 
 husband's concurrence was necessary to the conveyance of her 
 realty, and he was not permitted to do or concur in any act 
 calculated to defeat the uses of the settlement.' But the wife 
 will be bound if she has been guilty of concealment and fraud.' 
 She will also be bound by a representation which is inaccurate, 
 though made in good faith, to which the sanction of the Court 
 was made under the Infants' Settlement Act, 1 8 5 5 .' She could 
 be bound by a jointure or a suitable and competent provision in 
 lieu of dower." 
 
 The general personal estate of a female infant was bound by 
 the settlement, because her husband took an absolute interest in 
 such property, and the settlement was deemed practically to be 
 his." Her choses in action reduced into possession during the 
 coverture were also bound ; '^ but such as were not reduced," or 
 her reversionary interests not becoming interests in possession 
 during coverture, were not so bound." A settlement by her 
 operates as a severance of the joint tenancy of any property 
 settled by her which she held jointly with others.'^ Property 
 settled to the wife's separate use was not bound, for the reason 
 that the husband took no interest in it.'" An important altera- 
 tion has been introduced by the Married Women's Property 
 Act, 1882 ; ''' and now a settlement of personalty as well as 
 
 ^ In Cannel y. Bvchle, 2 P. Wms. 242. ^ In Harvey v. Ashley, 3 Atk. 607. 
 
 ' Salshury v. JBagott, 2 Swanet. 603. ■* Williams v. Williams, I Bro. C. C. 152. 
 ' Caruthers v. Caruthers, 4 Bro. C. C. 500 ; see Milner v. Lord Harewood 18 
 Vcs. 259. " Trollope v. Linton, 1 Sim. & St. 477. 
 
 ' Durnford v. Lane, i Bro. C. C. 106 ; Pimm v. Insall, 7 Ha. 193. 
 ** Sharpe v. Foy, L. E. 4 Ch. App. 35. ^ Mills v. Fox, 37 Ch. D. 153. 
 
 ^^ Under 27 Hen. VIII. c. 10. tlrury v. Drury, 2 Ed. 60 ; Caruthers y. Caruthers 
 [uhi sup. ). This is a point of little importance since the passing of the Dower Act, 
 3 & 4 Wm. IV. 0. 105. See ante. Part I. Husband and Wife, chap. xi. pp. 224 et seii- 
 '- Simson v. Jones, 2 R. & M. 365. 
 
 " Mawlins v. Birkett, 25 L. J.Ch. 837. i-' Barton v. Borton, 16 Sim. 552. 
 
 " Cuningham v. Antrobvs, 16 Sim. 436 ; Fiell v. Moore, 24 L. J. Ch. 161. 
 ^' Burnahy v. Equitable Reversionary Interest Society, 28 Ch. D. 416. 
 ^^ Simson v. Jones {ubi sup.). ■" 45 & 46 Vict. c. 75. 
 
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CHAP. iv.J MAREIAGE SETTLEMENTS. 773 
 
 realty not authorised by the Court of Chancery will not be 
 binding on the female infant ; for by that Act the marital interest 
 in the wife's personalty is completely abrogated, so far as the 
 period of coverture is concerned, and her property is her separate 
 property ; consequently a settlement of her personalty is no 
 longer that of her husband, but of herself, and so voidable by her 
 on attaining majority. 
 
 The wife might be bound by her acquiescence in the settle- Wife bound by 
 ment,' or by her subsequent confirmation of it on attaining '''"^""'^''™°®' 
 majority.^ A mere appointment of a new trustee by a married 
 woman on attaining her majority is not necessarily an expression 
 of her intention to confirm the settlement,^ but it is not necessary 
 that she should do any particular act to confirm it.* If the con- 
 firmation ought to be by deed acknowledged, then there ought to 
 be such deed ; * and the property she professes to bind by her 
 confirmation must be such as she is capable of disposing of." 
 
 Where the wife is a minor, and her covenant for the settlement Wife's cove- 
 of her property is for her benefit, it is voidable only and not void, me'nt voidable ? 
 and is binding upon all property coming to her during coverture ^i^';''."'' °^ 
 which can be affected by her covenant until she avoids or dis- majority, 
 affirms the covenant as to such property ; and she- may, after 
 attaining twenty-one, and during the coverture, elect whether the 
 covenant shall be binding on her separate estate or not, such 
 right of election being a necessary consequence of a married 
 woman's power to dispose without her husband's consent of pro- 
 perty settled to her separate use.'' If the settled property consists 
 of a fund in Court it will not be transferred to her trustees with- 
 out her consent on attaining majority.* Where she attains 
 majority, and evinces her intention of confirming the settlement, 
 it will be recognized as binding on her ; and if she become of un- 
 sound mind (though not so found by inquisition) before electing, 
 the Court will elect on her behalf when it appears to be for her 
 benefit." Where a person takes a benefit under an instrument, he 
 or she can accept the benefit under it, but not without at the same 
 time conformiag to all its provisions and renouncing every right in- 
 consistent with them ; in other words, such person cannot approbate 
 
 ^ Ashton V. M'Dougal, 5 Bear. 56. 
 
 ^ Merryweather v. Jones, 4 Gifl'. 509 ; Sorrow v. Barrow, 4 K. & J., 409 ; Davies 
 V. Davies, L. E. 9 Eq. 468 ; Willoughby v. Middleton, 2 J. & H. 344 ; Widte v. Cox, 
 2 Ch. D. 387 ; &n.ith v. Lucas. 18 Ch. D. 531. 
 
 ^ Haywood -v. Tidy, 63 L. T. 679. 
 
 * See Burnahy v. Equitable Beversionary Interest Society (uhi sup. ). 
 ^ Field V. Moore {ubi sup. ). 
 
 * Smith V. Lucas {uhi sup. ). 
 
 ' WUloughby v. Middleton (ubi sup.) ; Smith v. Liicas (ubi sup.). See Part I. 
 chap. viii. pp. 134, et seq. 8 Day y. Day, 11 Beav. 35. 
 
 s Wilder V. Pigott, 22 Cb. D. 263. See also Jones v. Lloyd, L. R. 18 Eq. 265. 
 
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774 
 
 INFANTS. 
 
 [part IV. 
 
 When put to 
 election. 
 
 and reprobate the instrument at the same time. Where, then, 
 any person chooses to defeat a settlement he or she must make 
 Compensation, compensation to those who are disappointed by her choice. This 
 rule of law has been held applicable to a woman who, marrying as 
 an infant with property settled on her, on attaining majority has 
 elected to disaffirm the settlement. Thus, it has been held that 
 a wife could not insist upon the benefit of a settlement made 
 during her infancy so far as regards property effectually bound by 
 the contract of her husband, and at the same time repudiate the 
 settlement as to property not capable of being so bound, but had 
 to elect whether she would take under or against the settlement.' 
 Again, a married woman has been put to her election to take 
 under or against the settlement under the following circum- 
 stances : She married as an infant, and joined in a post-nuptial 
 settlement, executed after her coming of age, in which her 
 husband's property, property settled by her father on • her, and 
 reversionary property of her own (which she could not have 
 properly bound) were all settled on the trusts of the marriage ; 
 she became discovert before the reversion fell into possession, and 
 claimed the reversionary property independently of the settle- 
 ment.^ This rule will contmue to be applied in all cases not 
 afEected by the Act of 1882 ; but where that Act will apply, the 
 question of election cannot well arise, for the husband's covenant 
 cannot bind any property of his wife, for he has no interest in it ; 
 so that on attaining majority she will be able to repudiate the 
 covenant made by her.'* It is a condition precedent that the 
 infant should on attaining full age be competent to give up by 
 way of compensation the provision intended for him or her under 
 the settlement.^ 
 
 This doctrine of election is founded on a presumption of a 
 general intention that every part of an instrument shall take 
 
 ^ Willouglihy v. 3Iiddleton, 2 J. & H. 344. 
 
 ^ Codrington v. Codrington, L. R. 7 H. L. 854. 
 
 ^ This statement is still left in the text, notwithstanding the decision of Chitty, J., 
 in Stevens v. Trevor ■Oarrich, ([1893] 2 Ch. 307) to the effect that sect. 19 of the Act 
 of 1882 so modifies sect. 2 of the same Act in the case oi future settlements, that 
 though under sect. 2 a married woman is entitled to hold all her property as if she 
 were a, feme sole, yet sect. 19, because it uses the words "settlement .... made 
 or to he made," preserves the former law of marriage settlements, and as under that law 
 a husband of an infant wife could bind her property by his covenant to settle it, so, in 
 spite of the passing of the Act, a married woman is not mistress of her property but is 
 disentitled to repudiate a contract made by her or on her behalf during infancy. It is 
 submitted with confidence that the erroneous decision is due to the non-appreciation 
 of the grammar and construction of clause 19 ; and that tbe marginal note of the 
 .lection is accurate, and that the Act does not apply to future settlements. If care- 
 fully read, it will be seen that the word "made" refers to " any settlement," and 
 the words " to be made" to "agreement for a settlement," that is, to a binding bnt 
 inchoate settlement existing at the time of the passing of the Act. This construction 
 seems to be alone consonant with good sense and the spirit of the Act. 
 
 ■^ 6 Byth. & .Jarm. (4 Edit. ) 148. 
 
 Eule affected 
 by M. W. P. 
 Act, 1882. 
 
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CHAP. IV.] MARKIAGE SETTLEMENTS. 775 
 
 effect ; but the presumption of such general intention may be 
 rebutted by an inconsistent particular intention appearing in the 
 instrument ; and so far as married women infants are concerned 
 restraint against anticipation is such inconsistent intention.' 
 Thus, where a married woman, as an infant, was possessed of a fund 
 which she was restrained from anticipating by the instrument of 
 settlement, and by the same instrument entered into a covenant 
 to settle after-acquired property, which covenant she disaffirmed 
 after reaching majority, she was held not bound to elect whether 
 she should take under or against the instrument of settlement, 
 but entitled to keep both the settled sum and any other sums 
 which might otherwise have been affected by her covenant.^ This 
 question has given rise to a considerable conflict of opinion, and 
 a married woman has been held bound to her election under such 
 circumstances as above mentioned.^ But the opinion given in 
 the text is now settled law.* Where a married woman elects to 
 repudiate the settlement she must do so within a reasonable time 
 after attaining majority." 
 
 To sum up. A covenant by a female infant on her marriage Summary. 
 with a male adult did not bind her realty, because her husband 
 took but a limited interest in the property ; but her interest by 
 ■survivorship in her chattels real was bound. The general per- 
 sonal estate of a female infant was bound by a settlement made 
 on her marriage, because it became the absolute property of the 
 husband, and the settlement was in effect his settlement. This 
 included choses in action reduced into possession during coverture, 
 bat not those not reduced into possession. Her separate property 
 was not bound, because her husband took no interest in it. On 
 attaining her majority a married woman might be bound by a 
 settlement made by her during infancy, where she acquiesced in 
 it, or confirmed it, or elected to take under it. The effect of the 
 Married Women's Property Act, 1882, is to render every settle- 
 ment of realty or personalty not made with the sanction of the 
 Court of Chancery by a female infant voidable at her election on 
 attaining the age of twenty-one.'^ 
 
 Male Infant, Female Adult. — There is no distinction to be made Male infant, 
 
 1 -.-,„■.• a -,,-,■ £ female adult. 
 
 between male and female infants as regards their powers 01 
 
 1 Be Vardon's Trusts, 31 Ch. D. 275 ; Hamilton v. Hamilton, [1892] i Ch. 396. 
 
 ^ Be Vardon's Trusts (ubi sv/p.). 
 
 5 See WUlotighby V. Middhton {vhisup.) ; Oodrington v. Oodrington (ubi sup.) ; 
 Be Queade's Trusts, 54 L. J. Ch. 786. 
 
 * Be Wheatley, Smith v. iSpence, 27 Ch. D. 606 ; Be Vardon's Trusts (ubi sup.] 
 overruling Be Queade's Trusts (ubi sup.y, and see judgment of Jessel, M.R., in 
 ^ith V. Lucas, 18 Ch. D. 531. ' Edwards v. Carter, [1893] App. Cas. 360. 
 
 ' If she derives a benefit under the settlement from her husband, she ought not 
 to be permitted to repudiate her own covenant and claim at the same time the benefit 
 she takes from him, but will be put to her election to take under or against the deed. 
 
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776 
 
 INFANTS. 
 
 [PAET IV. 
 
 Election by 
 male infant. 
 
 Husband and 
 wife infants. 
 Settlements 
 ineffectual. 
 
 Settlements 
 under the 
 Infants' Settle- 
 ments Act, 
 1855- 
 How madfi. 
 
 making binding settlements of their property. An ante-nuptial 
 agreement by a husband to settle his wife's unsettled property 
 was held void as being prejudicial to his interests.' A male 
 infant cannot more effectually covenant to settle his real or per- 
 sonal property than a female ; ^ though it seems that if he has 
 been guilty of fraud and misrepresentation by which his wife has 
 been misled, he will be held bound by his settlement of his personal 
 property.^ 
 
 Where the infant wishes to repudiate a settlement made on his 
 marriage, he must disajBBrm the contract within a reasonable time 
 after attaining majority ; ' though it has been held that forty years 
 after reaching majority was not an iinreasonable time for repudia- 
 tion ; ^ but this decision can hardly be deemed accurate. Where 
 he elects to defeat the settlement he must make compensation 
 out of the interest derived through or out of the settlement. 
 
 Where both husband and wife are infants their respective 
 covenants to settle their property, real or personal, are absolutely 
 ineffectual to bind them. Where the infant is a ward of Court, 
 the sanction of the Court must be obtained to the marriage, 
 which will not be granted unless it appears that the marriage is 
 suitable, and the proposed settlement proper. 
 
 (2) It was once thought that the concurrence of the parents or 
 guardians rendered the covenants of infants binding,* and that 
 the Court of Chancery might so contract on behalf of its infant 
 wards as to bind them.^ But it is now settled that the former 
 proposition is no longer law,^ and that the Court of Chancery 
 has no authority to give an infant a power of alienation even for 
 his own benefit f and that apart from its statutory powers the 
 Court cannot intervene to give to the act of an infant any further 
 operation upon property, or other legal result than it would have 
 independently of such intervention.'" In order to obviate the 
 inconveniences and disadvantages arising from the incapacity of 
 persons marrying during their infancy to make binding settle- 
 ments of their j)roperty, in 1855 the following Act was passed, 
 
 '■ Kingsman v. Kingsman, 6 Q. B. D. 122. 
 
 2 See Bhod v. Branfill, cited by Turner, L.J.,in Field y. Moore, 7 De G. M. & G. 
 711 ; Honywood v. Honywood, 20 Beav. 451 ; Derhishire v. Home, 5 De G. & Sm. 
 702. In Slocomhe v. Olubh (2 Bro. 0. C. 551), the infant husband was held 
 bound by his wife's covenant, because as husband he had to answer for her ante-nuptial 
 contracts ; hut in view of recent legislation, that ground cannot be said any longer to 
 exist. ^ See Nelson v. Stacker, 33 L. T. 0. S. 277. 
 
 ^ Edwards v. Carter, [1893] App. Cas. 360, reversing Hamilton v. Hamilton, 
 ([1892] I Ch. 396) OD this point. 
 
 ^ Re Jones, Tarrington v. Forrester, [1893] 2 Ch. 461, per North, J. 
 
 ^ See Harvey v. Ashley, 3 Atk. 607 ; Ainslie v. Medlycott, 9 Ves. 19. 
 
 ' See Drury v. Drwry, 2 Ed. 60. ^ Simson v. Jones, 2 Euss. & Myl. 365. 
 
 3 Hastings v. Orde, 1 1 Sim. 205. 
 1° Per Turner, L.J., in Field v. Moore [ubi sup.). Be Leigh, Leigh v. 
 
 40 Ch. D. 290 ; Seaton v. Beaton, [1893] App. Cas. 61. 
 
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CHAP. IV.] MA.REIAGE SETTLEMENTS. 777 
 
 entitled, " An Act to enable Infants, with the Approbation of the 
 Court of Chancery, to make Binding Settlements of their Real 
 and Personal Estate on Marriage."' 
 
 " Sect. I. From and after the passing of this Act it shall be infauis may, 
 lawful for every infant upon or in contemplation of his or her tion oTuourt' 
 marriage, with the sanction of the Court of Chancery, to make a '^^^^^■^Y' 
 valid and binding settlement (.)r contract for a settlement of all or settlements or 
 
 oonti'S-pts for 
 
 any part of his or her property, or property over which he or she settlement of 
 has any power of appointment, whether real or personal, and ^^^^ marriage. 
 whether in possession, reversion, remainder, or expectancy ; and 
 every conveyance, appointment, and assignment of such real or 
 personal estate, or contract to make a conveyance, appointment, 
 or assignment thereof, executed by such infant, with the appro- 
 bation of the said Court, for the purpose of giving effect to such 
 settlement, shall be as valid and effectual as if the person execut- 
 ing the same were of the full age of twenty-one years : Provided 
 always, that this enactment shall not extend to powers of which 
 it is expressly declared that they shall not be exercised by an 
 infant. 
 
 " Sect. 2. Provided always, that in case any appointment, or in case infant 
 any disentailing assurance, shall have been executed by any appohitment, ' 
 infant tenant in tail under the provisions of this Act, and such *<=•• '° ^®^°"'- 
 infant shall afterwards die under age, such appointment or disen- 
 tailing assurance shall thereupon become absolutely void. 
 
 "Sect. 3. The sanction of the Court of Chancery to any such The sanctionj 
 
 •^ ... of the Court f^ 
 
 settlement or contract for a settlement may be given upon petition of Chancery to 
 presented by the infant or his or her guardian in a summary way, petftion? "^"^ 
 without the institution of a suit ; and if there be no guardian, the 
 Court may require a guardian to be appointed or not, as it shall 
 think fit ; and the Court also may, if it shall think fit, require 
 that any persons interested or appearing to be interested in the 
 property should be served with notice of such petition. 
 
 " Sect. A. Provided always, that nothing in this Act contained Not to apply 
 
 1 11 1 i • c T 1 i> J. J. to males under 
 
 shall apply to any male infant under the age 01 twenty years, or ^o, or females 
 to any female infant under the age of seventeen years." oTfge.^^ ^^^'^^ 
 
 An application under this Act does not constitute the infant a Application 
 ward of Court, nor does the Court inquire into the propriety of ^^^ ^^j^^on- 
 the marriage, but only the propriety of the settlement, though of ?^"g^t\'^„4 
 course "what in each case may be a proper settlement must some- of Court. 
 times lead to an inquiry as to all the circumstances connected 
 with the marriage." ^ 
 
 The practice in petitions under the Act is regulated by Rule XX. 
 
 1 18 & 19 Vict. c. 43, extended fo Ireland by 23 & 24 S^ict. c. 83. 
 
 2 Me Dalton, 4 W. E. 761 ; see also Be Strong, 26 L. J. Ch. 64. 
 
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778 
 
 INFANTS. 
 
 [PAUT IV. 
 
 Practice in 
 petitions under 
 the Act. 
 
 Settlement 
 that of infant 
 and not of 
 Court. 
 
 Court has 
 claimed power 
 to sanction 
 post-nuptial 
 settlement, 
 
 of the Eegulations as to Business in Chambers, August 1857/ 
 which is as follows : " Upon applications to obtain the sanction 
 of the Court to infants making settlements on marriage, under 
 the Act of 18 & 19 Vict., c. 43, evidence is to be produced to 
 show — 
 
 1. The age of the infant. 
 
 2. Whether the infant has any parents or guardians. 
 
 3. With whom, or under whose care, the infant is living, and 
 
 if the infant has no parents or guardians, what near 
 relations the infant has. 
 
 4. The rank and position in life of the infant and parents. 
 
 5. What the infant's property and fortune consist of. 
 
 6. The age, rank, and position in life of the person to whom 
 
 the infant is about to be married. 
 
 7. What property, fortune, and income such person has. 
 
 8. The fitness of the proposed trustees, and their consent to act. 
 
 The proposals for the settlement of the property of the infant, 
 and of the person to whom such infant is to be proposed to be 
 married, are to be submitted to the judge. 
 
 The active interference of the Court is usually confined to 
 keeping them within the limits of what it considers expedient 
 and suitable to the circumstances, and of deciding in case of a 
 difference of opinion.^ The settlement is that of the infant and 
 not that of the Court.' A settlement will be rectified on the 
 ground of mistake on the part of the infant. '' This statute got 
 rid of the disability of infancy, but did not in the case of a female 
 infant remove that of coverture ; ° but this disability has been 
 removed by the Married Women's Property Act, 1882. This 
 Act enables an infant in exercising a general power of appoint- 
 ment for the purpose of making a settlement of his property on 
 marriage to make an absolute appointment, so that on the failure 
 of the limitations of the settlement the appointed property will 
 become his own." 
 
 It has been decided that this statute renders valid a post- 
 nuptial settlement of an infant's estate made with the approbation 
 of the Court of Chancery, where the infant is a ward of Court ; ' 
 and the sanction of the Court may be given where no petition 
 
 ^ These have not, however, the force of General Orders. 
 
 '■' 3 Dav. Prec, Pt. I. p. 195. In an Irish case it was held that the Act was 
 intended to enable infants to make binding settlements, and not to defeat a settlement 
 by appointing away part of the settled property ; Be Armit's Trusts, Ir. Kep. 5 Eq. 352. 
 
 3 Seaton v. Seaton, 13 App. Cas. 61. ' Mills v. Fox, 37 Ch. D. 153. 
 
 ' Ssaton V. Seaton {ubi sup.). 
 
 ^ Be Scott, Scott V. Hanhury, [1891] i Ch, 298 ; and see Be D'Angibau, Andrews 
 y. Andrews, 15 Oh. D. 228. 
 
 ' Powell V. Oakley, 34 Beav. 575 ; Be Sampson and Wall, 25 Ch. D. 482, 
 
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CHAP, IV.] MARRIAGE SETTLEMENTS. 779 
 
 under the Act has been filed.' It has been also recently decided whether infant 
 by the Court of Appeal that the Court has power to sanction a ^not" seti 
 binding settlement of the property of an infant, not being a ward v'^^'''^- 
 of Court, even after his marriage.^ This decision was followed by 
 Ohitty, J.,in the case of a young girl who married before she was 
 seventeen ; and after attaining seventeen applied to the Court to 
 make a binding settlement of her property.' This power, if it 
 ■exists at all, enables the Court to make a settlement binding upon 
 infants which otherwise would have been voidable at their election. 
 But the House of Lords has laid it down that the Court has no Seatonj. 
 power to compel one of its wards to make a settlement of his proo." 
 property in invitum, even though he has been in contempt for 
 marrying without leave.'' After the expression of opinion of the 
 House of Lords in Seaton v. Seaton, a considerable doubt of the 
 accuracy of the judgment of the Court of Appeal in Sampson v. 
 Wcdl must result. 
 
 An infant's marriage settlement is voidable and not void, and Settlement not 
 is not within the Infant's Eelief Act, 1874.° Eel. Act" ^874. 
 
 1 See Be Sampson and Wall (ubi sup.). ^ Ibid. 
 
 " Be PhiRips {an Infant) 32 Ch. D. 467. 
 
 ^ Seaton v. Seaton (ubi sup.) ; and see Be Leigh, Leigh v. Leigh, 40 Ch. D. 290. 
 
 ■» 37 & 38 Vict. c. 62. Duncan v. Dixon, 44 6h. D. 211. 
 
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CHAPTER y. 
 
 WARDS OF COURT. 
 
 PAGE 
 JUKISDICTION OF COXJET OP CHANCEEY OVER INFANTS: OEIGIN 780 
 
 Wards op Court, how Constituted 781 
 
 What does not Constitute a Waed of Court ... 782 
 
 Effect op Infant being made Ward op Court . . 783 
 
 When the Court will Act 783 
 
 Protective Jueisdiction Exeecisbable without In- 
 fant Possessing Peopeety 784. 
 
 GENBRAL JUEISDilCTION OP COURT OVER WAEDS . . . 785, 
 
 As TO THE Marriages op Wards 786 
 
 Marriage op Ward without Leave of Couet a Con- 
 tempt 787 
 
 Punishment op Contempt 790 
 
 Maeeiage Settlements op Waeds — Maeeiage op 
 
 MiNOE Waed with Consent op Couet ... 791 
 
 Maeeiage of Ward after Attaining Majoeity . . 792 
 
 Taking Waeds out op the Jueisdiction . . . . 796 
 
 When Leave to take Geantbd . . • • 797 
 
 Disclosure op Rbsidexce of Ward 798 
 
 The important question of wardship of Court will now be con- 
 sidered. It is treated of in the present place — and not under 
 the heading of Guardian and Ward — because the exercise of the 
 power of the Court is founded less on the right of wardship than 
 a delegated right to interfere on behalf of infants who are in 
 The interests need of its assistance. The power and jurisdiction of the Court 
 ^thin'the '^^ Chancery to superintend and protect the interests of infants 
 jurisdiction of are clear and undisputed. 
 
 ctiancery. This Superintendence and protective power over those who- 
 
 Origin of the cannot help themselves must in every civilized country be deemed 
 
 junsdiction. _ ^ » t ■ i i • i. ij 
 
 to exist somewhere, and unless found to exist elsewhere, is held 
 most properly to exist in the supreme authority. The idea that 
 The kin? the king was the especial protector of orphans and those unable 
 paimspaiia. ^^ ,jefend themselves is of long standing; and clear traces of it 
 are found in the legislation of Charlemagne. It is true that m 
 the case of infants possessed of land, the feudal relation of lord 
 and vassal subsequently took the place in Europe of that between 
 
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CHAP, v.] WARDS OF COURT. 781 
 
 the king and his subjects ; yet in every country there must have 
 been a large number of infant orphans who had no feudal 
 superior, and if there had not been a common protector of their 
 rights and interests, would have been altogether defenceless and 
 at the mercy of strangers. In England that protective power was 
 not found to exist in any particular Court, or body of persons, by 
 inherent jurisdiction, and therefore must be presumed to have 
 been in the Crown. It was this protecting power and jurisdiction 
 on behalf of infants that the kings delegated to their representa- 
 tives when they themselves could no longer personally superin- 
 tend its enforcement. In England it was delegated by the Delegation of 
 Sovereign to the Court of Chancery, a Court presided over by the lo^he^'court' of 
 Chancellor, who, in the ecclesiastical language of the day, was Chancery. 
 the keeper of the king's conscience. The Court exercises the 
 delegated functions of the Crown as parens patrice, which now 
 form part of its general jurisdiction.' It is enough to say that 
 the jurisdiction is fully recognized. By the Judicature Act, Judicature 
 1873,^ wardship of infants is exclusively assigned to the Chancery aasigns'ward- 
 Division of the High Court. The power of the Court is exercis- ^^'p "^ ;°f^iits 
 able over not only children resident in England, but over the Chancery. 
 children of British subjects, though born and residing abroad ; ^ 
 but in cases where the guardian is residing out of the jurisdic- 
 tion, the Court will appoint a guardian within the jurisdic- 
 tion.'' 
 
 Where a suit is instituted for the direction of the Court in How ward of 
 relation to the estate or person of an infant and for his benefit, ^°^^^_ oonsti- 
 or for the administration of property in which he is interested. By action 
 the infant, whether he be plaintiff or defendant, becomes a ward the interest of 
 of Court the instant that the bill is filed. In this character he ^^^ '"f'^"*' 
 is considered to be under the particular care of the Court ; and 
 he is equally entitled to its protection, whether he is under the 
 immediate tutelage of a parent, a statutory or common law 
 guardian, or of a guardian appointed by the Court ; for the Court 
 does not assume to itself the actual guardianship of infants.^ 
 
 ■^ This ib the opinion of Mr. Fonblanque (2 F. Tr. Eq. 5th edit. 228 n.), which 
 coincides with that of Lord Hardwicke in Sutler v. Freeman (Amt. 301), where his 
 lordship says that the " Court does not act on the footing of guardianship or wardship," 
 but " has a general right delegated by the Crown as pater patrice to interfere in 
 particular cases for the benefit of such who are incapable to protect themselves." It is 
 also approved hj Lord Thurlow in Powell v. Cleaver (2 Bro. C. C. 499), and by Lord 
 Eldon in De ManneviUe v. De Manneville (10 Ves. 52). Mr. Hargi-ave, in his edition 
 of Coke upon Littleton (Co. Litt. 88 b.), is certainly opposed to this view put fo.ward 
 by Mr. Fonblanque, and goes so far as to say that the jurisdiction of the Court of 
 Chancery is an usurpation, though a necessary one. However, authority is in favour of 
 Mr. Fonblanque's statement of the law. 2 36 & 37 Vict. c. 66, s. 34, sub-s. 3. 
 
 ^ Sme V. Hope, 26 L. J. Ch. 417. 
 
 * Johnstone v. Seattle, 10 CI. & F. 42. See Part HI. Guardian and Ward, 
 chap. ii. p. 607. The Court can still enforce its orders by its officer, the " Sergeant-at- 
 arms attending the Court," (?. v. L., [1891] 3 Ch. 126. ^ Macph. Inf. 103. 
 
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782 INFANTS. [part iv. 
 
 Leave to apply for directions for the appointment of a guardian 
 and for maintenance, and for directions as to education, &c., are 
 no longer inserted in tlie decree ; for application for such matters 
 Application by can be made at chambers without leave. If the infant is a party 
 infant party to to the suit, the application is made by an ordinary summons ; if 
 the suit. jjg jg j^Q^ g^ party, the first application is made by a summons in 
 
 the form used for proceedings originating at chambers, which is 
 instituted in the matter of the infant by his next friend, and in 
 the suit, but subsequent applications in the same matter and suit 
 Any person are made by an ordinary summons." In order thoroughly to 
 proce°dmg3.^ protect the interests of infants, any person may commence pro- 
 ceedings on their behalf; though if the proceedings have been 
 improperly commenced, the originator will run the risk of 
 having the suit dismissed, and being censured and visited with 
 the costs." 
 
 An infant is also constituted a ward of Court by an order in 
 Chancery appointing a guardian ; ^ by payment of money in 
 which the infant is interested into Court, under the Trustee 
 Relief Act ; ^ by an order made upon a petition under that Act 
 for payment of part of such fund for maintenance ; * by payment 
 into Court of moneys to the separate account of an infant in an 
 administration suit to which the infant was not a party ; ° but 
 it has been more recently held that this does not apply where 
 the infant was altogether an alien with a foreign domicil ; or at 
 any rate that the Court has a discretion whether the foreign 
 infant shall be so constituted one of its wards ; ' or by an order at 
 chambers for the maintenance of an infant without suit.* An 
 opinion has also been expressed that an actual order of the Court 
 appointing a guardian is not necessary to constitute an infant a 
 ward of Court ; but that if a summons for the appointment of a 
 guardian is taken out, and no order is made upon it, but an 
 arrangement as to access to the infant is made, such proceedings 
 are sufhcient to constitute the infant a ward of Court.' 
 What does not But payment into Court under section 3 2 of the Legacy Duty 
 
 constitute a . ^ / ^ r^ ttt \ n t ii- -i-i 
 
 ward of Court. Act, 1 796 (36 (ieo. ill. c. 52), 01 a legacy leit to an miant 
 does not constitute him a ward of Court ; '" nor payment into 
 Court of money under the Lands Clauses Act, 1845 (8 & 9 Vict. 
 c. 18) ;" and the mere bringing an action in Chancery against an 
 
 ^ 2 Dan. Ch. Pr. in6. ^ Ibid. 1112. Seejjosf, chap. vii. 
 
 ' Stuart V. Marquis of Bute, 9 H. L. Cas. 440. ■• 10 & 11 Vict. c. 96. 
 
 5 Me Hodge's Trusts, 3 Jur. N. S. 860 ; Be Benand, 16 W. R. 538 ; Be Lloyd's 
 Trusts, I. E. 2 Eq. 507. " De Pereda v. De Mancha, 19 Ch. D^v. 451. 
 
 '' Brown v. Collins, 25 Ch. D. 56. The Court will in such a case be slow to hold 
 the infant to be a ward of Court. * Be Graham, L. E. 10 Eq. 530. 
 
 ' Per Hall, V.-C, in De Pereda v. De Mancha (uhi sup.). 
 
 i» Be Hillary, 2 Dr. & Sm. 461. 
 
 ^^ Ex parte Brewer, Be Wilts and Somerset Bailvay, 2 Dr. & Sm. 552. 
 
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CHAP, v.] WARDS OF COURT. 783 
 
 infant, except for the above purposes, does not make him a ward 
 of Court/ And it seems that the carrying of a fund to the 
 separate account of an infant in an action to which he is not a 
 party is insufficient to constitute him a ward of Court, and it 
 certainly will not where the infants are aliens and resident out 
 of the jurisdiction." 
 
 The effect of an infant being made a ward of Court upon those Effect of infant 
 who have the care and control of him' has been thus described: warlof (?ourt. 
 "If there be a parent living within the jurisdiction of the Court, 
 or if there be a testamentary guardian within the jurisdiction of 
 the Court, the Court in that case does not interfere for the pur- 
 pose of appointing a person to discharge the duty which is 
 imposed upon the Court itself of taking care of the person of the 
 infant, but the parent or testamentary guardian is subject to the 
 orders and control of the Court, precisely in the same way as an 
 officer appointed by the authority of the Court, for the purpose of 
 discharging the duties to which I have referred. I apprehend 
 that is clearly the law of the Court of Chancery, and it has 
 always been so, as far as I have been able to understand and 
 comprehend." ' 
 
 An infant British subject may be made a ward of Court even infant British 
 where it is out of the jurisdiction, if there is property in this may be made 
 country in which it is interested, and which can be administered ^^^'^ °* Court. 
 by the Court and even where there is no property in this 
 country,* though this would not be the case where the infant 
 was an alien but possessed property in this country, and 
 guardians abroad had been appointed to him.* The effect of this 
 is that if an order of the Court is made requiring the infant to 
 be brought back within the jurisdiction, and is served upon the 
 person who has the custody, and he disobeys it by keeping the 
 infant abroad, or by marrying it without the consent of the 
 Court, he can be attached for contempt on coming within the 
 jurisdiction. 
 
 The Court exercises its supervising jurisdiction as possessing when the 
 the delegated power of the Sovereign as pater patnce to super- n°^\ ^f Q^au" 
 intend and protect the interests of those who are unable to take eery will not 
 care of themselves ; but there are, apparently, grounds for hold- guardian un- 
 ing that the Court has practically placed a limit on its own juris- |ffg *^e°**°' 
 diction ; that is, it will not ordinarily act unless there is some- property to be 
 
 , . . , . , . . -i • • J- i.' • administered. 
 
 tnmg before it upon which it can exercise its jurisdiction ; in 
 
 ' Macph. Inf. 104. ^ Broan v. Colhns {uhi sup.) 
 
 ' Per Lord Lyndhurst in Johnstone v. Beattie, 10 CI. & b'in. 85. 
 * Be Willoughhy (an Infant), 30 Ch. D. 324. 
 
 ^ See Brown v. Collins [uhi svp.). Re Bonrgoise, 41 Cb. D. 310. See Part III., 
 chap. ii. p. 609. 
 
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784 INFANTS, [part iv. 
 
 other words, where there is no property of the infant to adminster, 
 there the Court does not interfere. Thus, Lord Eldon has said : 
 " This Court has not the means of acting, except where it has 
 property to act upon. It is not, however, from any want of 
 jurisdiction that it does not act, but from a want of means to 
 exercise its jurisdiction, by applying property for the use and 
 Small amount maintenance of the infants." ' A very small amount of property, 
 snffident.^ money, or otherwise (^loo is sufficient), need be settled upon 
 the infant to make him a ward of Court ; ^ a mere contingent 
 right to property is enough to found the jurisdiction of the 
 Court.' Where the Court is exercising its statutory jurisdiction, 
 such as appointing a guardian under the Marriage Act * for the 
 purpose of giving consent to the marriage of an infant, the 
 latter need not possess any property,* but the petition for such 
 purpose must be presented pursuant to the statute, or it will be 
 dismissed.^ 
 Protective The purely protective jurisdiction of the Court exercising the 
 
 may be exer- delegated power of the Crown can be put in force without the 
 infantTossess- infant possessing any property, and the Court may make an order 
 ing property, for the delivery of an infant to the party who ought to have 
 the custody of it, on petition, as well as under the general juris- 
 diction upon habeas corpus, which it shares with the common 
 law courts.' So far as the practice has been, it seems that an 
 infant will not be made a ward of Court unless there is some 
 property, the trusts of which the Court can administer in the 
 interests of the ward, consequently only a small amount of pro- 
 perty, real or personal, need be settled on the infant ; but where 
 the Court is merely asked to exercise its powers for the protec- 
 tion and assistance of the infant, there no question of property 
 arises, and none is required for the purpose. But if ever 
 occasion requires that the Court should put in force the wider 
 jurisdiction which it exercises in the case of its wards, for the 
 benefit of an infant who has no property, it will dispense with 
 the necessity of settling any sum, however trifling, upon the 
 infant.^ In this sense all British subjects who are infants are 
 wards of Court, because they are subject to that sort of parental 
 jurisdiction which is entrusted to the Court.' But it is a limited 
 
 1 IVellesley v. Duke of Beaufort, 2 Euss. i, 21. ^ He Lyons, 22 L. T. 770, 
 
 ' BusseU V. Nicholk, 16 L. J. Ch. 477. 
 
 ^ 4 Geo. IV. c. 76, s. 17. ^ Be Wooheomhe, i Madd. 213. 
 
 ^ Bx parte Becker, i Bro. C. C. 556. 
 
 ' -Be tSpence, 2 Ph. 247 ; Se Fynn, 2 De G. & Sm. 457. 
 
 ' See Story, Eq. Jur. 1351, and the remarks of Cotton, L.J., in Agar-EUa v. 
 Agar-Ellis, Be Lascelks, 24 Ch. D. 317, 332. 
 
 ^ See Brovn v. Collins, 25 Ch. D. 56 ; Be Spence (ubi sup.) ; Be Fynn (uhi sup.) ; 
 Barnirdo v. ^IrHiic/h, [1891] App. Cas. 395 ; Be Scankm {Infants), 40 Ch. D. 200; 
 Be Nevin {an Infant), [1891] 2 Ch. 299. 
 
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CHAP, v.] WARDS OF COURT. 785 
 
 jurisdiction, and where the infant has no property under the 
 control of the Court, the Court cannot provide any scheme for 
 its maintenance or education. The Court has power to appoint 
 or remove guardians in the interests of the infant.' No next 
 friend of a penniless infant, no relation, no kind or charitable 
 person, no co-religionist of the infant, no priest or minister of 
 religion, has any right except of informing the Court of what is 
 wrong, and asking the Court's assistance on behalf of the 
 infant.^ 
 
 Jwisdidion of the Court over its Wards. 
 
 a. Generally. — The Court exercises its large powers (inherent Jurisdiction of 
 and acquired by statute) for the care and protection of those who ovei^warda 
 have sought refuge under its protecting aegis. It insists upon its Generally. 
 orders being carried out, and punishes those who neglect or 
 attempt to evade them. It does not wait for an injury to be 
 done to the wards, but on the slightest suspicion of harm to 
 them, interferes with preventive rather than remedial efficacy, 
 and removes them from the source of danger. No act can be 
 done affecting the person, the property, or the state of the minor, 
 unless under the express or implied direction of the Court itself. 
 " Every act done without such direction is treated as a violation 
 of the authority of the Court, and the offending party will be 
 arrested upon the proper process for the contempt, and compelled 
 to submit to such orders and such punishment by imprisonment 
 as are applied to other cases of contempt. Thus, for example, it 
 is a contempt of the Court to conceal or withdraw the person of 
 the infant from the proper custody, to disobey the orders of the 
 Court in relation to the maintenance or education of the infant, 
 or to marry the infant without the proper consent or approbation 
 of the Court. . . . Indeed, when once the Court of Chancery has 
 thus directly or indirectly assumed authority over the person or 
 property of the infant, as its ward, it acts throughout with all the 
 anxious care and vigilance of a parent, and it allows neither the 
 guardian nor any other person to do any act injurious to the rights 
 and interests of the infant." ' 
 
 Though the father or the mother be alive, the Court will Father, 
 remove or supersede them in the guardianship of the infant, and testamentary, 
 appoint another to be guardian, if at any time the interests of ^ian*may be' 
 the ward should demand their removal. But that which would superseded by 
 
 1 T „ . T. 1 1 T the Court, 
 
 be a ground for removing or superseding a mere legal guardian 
 
 1 Re 31'Ch-ath (Infanta), [1893] i Cti. 143 ; Be Scanlan [Infants) {tibi sup.). 
 " He M'Grath {Infants) {uU sup.). " St. Eq. Jur. 1353. 
 
 3D 
 
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786 INFANTS. [part iv. 
 
 from the control of the infant, would not be sufEcient in the case 
 of its parents. So where there is a testamentary guardian, the 
 Court can supersede or remove him,' and put another in his 
 place, if it should be necessary to do so ; and can remove guardians 
 appointed by the infant himself, or a guardian in socage, or a 
 
 and must obey guardian appointed by itself. The father, or other guardian, 
 may have orders made upon him regulating his conduct, and 
 if he fail to comply with the directions of the Court, he will 
 be removed from his trust ; and in this respect no difference 
 will be made between a parent and a guardian who is a stranger 
 in blood to the ward. The Court exercises the care of a vigilant 
 parent in watching over the best interests of its wards. It may, 
 if it thinks iSt, control their education ; thus, while the Court 
 may order its ward to be educated in the religious faith of its 
 dead father,^ yet if the latter has altogether forfeited or abandoned 
 his right to educate his children in his own faith, the Court, on 
 their becoming its wards, can pronounce in what religious faith 
 they shall be brought up.' 
 
 Marriages of 6. As to the, Marriages of Wards of Court. — The marriage of 
 
 Court. its wards is an "important and delicate duty of the Court of 
 
 Chancery, which it exercises with great caution."'' The reasons 
 which actuate the Court are the same as those which dictate to 
 the dutiful parent the necessity of encouraging suitable and fitting 
 marriages among his children. Before the wards are allowed to 
 marry, it is necessary to apply to the Court for leave to marry, 
 and this leave will not be granted unless the marriage appear 
 suitable, and the settlement proposed is proper.* Parties, 
 desirous of marrying wards of Court must petition the Court for 
 leave to do so. 
 
 What is a suit- A marriage is said to be fitting or suitable when the ages of 
 e mamage. ^j^^ parties agree, and there is a fair equality of rank and fortune 
 between them, and a proper settlement has been agreed upon 
 between them. When the Court is satisfied of the fitness of the 
 match, it makes an order giving leave to the parties to inter- 
 marry. ° The jurisdiction of the Court is not ousted because 
 the parents of the ward are alive, or there is a testamentary guar- 
 dian ; and their consent to the ward's marriage does not render 
 the leave of the Court unnecessary.' The Court will interfere 
 with parents and guardians who are endeavouring to bring about 
 
 1 49 & 50 Vict. 0. 27, ss. 2, 6, 13. 
 - Sawhsworth v. Hawlesworth, L. R. 6 Ch. App. 539. 
 
 ■^ Andrews v. Salt, L R. S Ch. App. 622. For further details of this suhject, see 
 Part II. Parent and Child, chap. ii. pp. 523 et seq. * St. Eq. Jur. s. 135S. 
 
 ^ Smith V. Smith, 3 Atk. 304 ; Earl of Plymouth v. Lewis, 2 Dick. 801. 
 ^ Set. Dec. 891 et seq. ' WeUesley v. Duke of Beaufort, aRuss. i, 28. 
 
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CHAP, v.] WARDS OF COUET. 787 
 
 a marriage without acquainting the Court of the fact, and commit 
 the ward to the custody of another.' 
 
 When the Court appoints trustees of the settlement on the 
 marriage of its ward, it will not choose persons who are distasteful 
 to the ward to serve in that capacity.* 
 
 The Court will assist parents or guardians to prevent the im- 
 proper marriage of their wards ; but on the other hand they will 
 be ordered not to permit the marriage without the Court's consent.^ 
 
 To marry a ward of Court without the leave of the Court is Marriage with - 
 treated as a serious contempt, and visited at times with severe t "mpt*^^ ""'^ 
 punishment, and this is so even where the party marrying the <^°i''*- 
 ward is an infant.'' The contempt is just as great where the 
 father or the guardian consents to the marriage. It is not a more 
 heinous ofEence for a man to marry a female ward than for a 
 woman to marry a male ward, if the sanction of the Court be not 
 obtained. It sometimes happens that the person who actually 
 marries the ward is not more guilty than those who have aided 
 and abetted in bringing about the marriage ; thus, all the parties 
 concerned will be brought before the Court and censured or 
 punished as they may deserve.* 
 
 To contrive or attempt to bring about a marriage without the Attempt to 
 leave of the Court is a contempt just as much as the actual mar- tempt.* °°"' 
 riage itself; and if the parties persist in running counter to the 
 directions of the Court they will be punished. Since the Court 
 prefers to prevent mischief rather than punish breaches of the 
 law, when it is informed of an intended clandestine "marriage of 
 one of its wards, it will by injunction not only interdict the 
 marriage, but restrain the parties from communicating with one 
 another,' whether in person, or by letter ; ' and where it suspects 
 the parent * or guardian of any connivance, it will remove the 
 infant from his care and custody, and intrust him to that of a 
 committee.' In order to obtain evidence of an attempt to bring 
 
 ^ Vernon v. Vernon, lO Geo. I., cited Byre v. Countess of Shafteshwy, 2 P. Wme. 
 103, 113 ; Pearce v. Crutchfield, 14 Ves. 206 ; Lord Shiphroolc v. Lord Hinchinhrooh, 
 2 Dick. 547 ; Tomhes v. Biers, i Dick. 88 ; and see Smith v. Smith [vhi sup.). 
 
 ^ lie Sampson and Wall, 25 Ch. D. 482. 
 
 ' Lord Raymond's Case, Gas. t. Talb. 58. 
 
 * Edes V. Brereton, West, Gas. t. Hardw. 348. 
 
 ^ Eyre v. Countess of tihaftesbury (ttfti Sitp.) ; Hughes v. Science, Amb. 302 n. ; 
 ilacph. Inf. Appdx. I. ; 2 Fonb. Ecj. Bk. 11. Part II. chap. ii. s. I ; St. Eq. Jur. 1358 ; 
 Set. Dec. 900, goi. 
 
 ' Pearce v. Crutchfield (uhi sup.). In Seton (pp. 894-896) are set nut orders 
 restraining marriage or intercourse with the ward, and subsequent orders ; also 
 references to various orders in one case, which give a history of the ti'ansaction, 
 beginning with an order restraining the principal and conniving parties from all 
 intercourse with the ward, and ending with an order dismissing petition for leave to 
 marry the ward. ' Dawson y. Thompson, 12L. T. 178. 
 
 * Lord Shiphroolc v. Lord Hinchinhrooh (ubi sup. ) ; Roach v. Garvan, 1 Ves. 
 Sen. 157. 9 Tomhes v. Elers {ubi sup.). 
 
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788 
 
 INFANTS. 
 
 [PAllT IV. 
 
 Any person 
 may inform 
 the Court of 
 an intended 
 marriage of a 
 ward. 
 
 Jurisdiction of 
 Court not 
 ousted by 
 lapse of time. 
 
 Where 
 maniage of 
 doubtful 
 validity. 
 
 Kemarriage in 
 case of female. 
 
 about a clandestine marriage, the Court will order letters contain- 
 ing promises of marriage from the intended husband to the wife 
 to be delivered up/ though not mere letters of civility." It will 
 give effect to hearsay evidence not contradicted by the other side. 
 In a case of Beard v. Tr avers, ^ Lord Hardwicke said : "In cases 
 relating to clandestine marriages, hearsay evidence and declara- 
 tions are no defective proof, but has weight with the Court, 
 especially when uncontradicted by anything on the other side." 
 In such a case, although the mere fact of marrying a ward of 
 Court without the leave of the Court is always a contempt, a 
 general order will be made that an infant shall not be married 
 without leave of the Court, and that certain persons shall have no 
 access to him or her by letter or otherwise.'' 
 
 Any person may bring to the notice of the Court that one of 
 its wards has been married, or is about to be married, without its 
 leave. The Court will thereupon direct a reference to inquire 
 whether a valid marriage has taken place, and if it has what 
 settlement ought to be ordered under the circumstances.* 
 
 The jurisdiction of the Court is not ousted by the lapse of a 
 considerable period before the complaint is brought ; for whether 
 the communication of the fact that a contempt has been committed 
 comes early or late, the Court has jurisdiction, and may feel a 
 duty, to punish that contempt, yet it would not be a very whole- 
 some exercise of discretion to visit that offence strongly, if upon 
 attention to circumstances that have occurred in the course of 
 six, seven, or eight years, not very strongly called upon to vindi- 
 cate the jurisdiction ; and in these cases where it is exercised 
 really for the benefit of the party, the Court ought to look with 
 great attention to all the circumstances of each case." 
 
 The fact of contempt of Court is not affected by the marriage 
 of the ward being valid or invalid;' but where the marriage is 
 of doubtful validity, the Court will order an inquiry to be made 
 whether it is or is not valid ; and in the meantime direct all 
 intercourse between the parties to be terminated. Where the 
 marriage is found to be invalid, and the ward is a female, and 
 the parties have cohabited, a valid remarriage will be ordered.* 
 Where the ward is a male, and has been led into a derogatory 
 connection, the Court will order steps to be taken to have the in- 
 valid marriage set aside ; ' but the Court can, if it sees fit, direct 
 
 1 Smith V. Smith, 3 Atk. 304. " Ibid. s 
 
 "' See Smith v. Smith (uhi sup.). " Macph. Inf. 191. 
 
 ^ Per Lord Eldon in Ball v. Coutts, i V. & B. 292, 302. 
 " Warter v. Yorke, 19 Ves. 451. 
 * Bathurst v. Murray, 8 Ves. 74 ; see Simp. Inf. 336. 
 " Warter v. Yorl;e {ubi svp.). 
 
 I Ves. Sen. 313. 
 
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CHAP, v.] WARDS OF COURT. 789 
 
 that the parties should be validly remarried ; ' but in such a case, 
 it is submitted, the consent of the ward to the valid marriage 
 must be secured. 
 
 Incongruity of age between the parties is an aggravation of the Aggravation 
 contempt ; thus, where an infant, an undergraduate of Oxford, was iQ°°"'*™t 'of 
 entrapped into a marriage with a common servant maid older age- 
 than himself, the circumstances of the case were deemed an 
 aggravation of the contempt ; ^ so, too, where a female ward of 
 sixteen was married to an old man of sixty ; ^ or one of twelve 
 jears and a half was married to her guardian.* Several cases 
 of like nature are to be found collected in Mr. Simpson's work on 
 Infants.* 
 
 Inequality of rank and fortune is also an aggravation of the inequality of 
 contempt. Thus, in all cases where the ward has been a person fortune. 
 of fortune or good rank, and has contracted a marriage with a 
 person of no fortune or low birth, the Court has deemed that 
 fact to be an aggravation of the contempt." It is not necessary 
 that the person marrying the ward should be beneath him both 
 in rank and fortune ; it is sufficient if the inequality be as regards 
 fortune only ; a son of a peer who had no fortune or allowance 
 except what he obtained from his father or other relatives, was 
 restrained from marrying an infant heiress and ward of Court.' 
 The contempt is aggravated where there has been criminality or 
 fraud in bringing about the marriage, or where confidential rela- 
 tionships between the ward and the person marrying the ward are 
 abused.^ 
 
 Some instances of contempt of Court are not so flagrant or Mitigation of 
 heinous as others, and a contempt may be committed which does 
 not call for any severe punishment from the Court, or any strong 
 vindication of its jurisdiction. Thus, where the party in con- 
 tempt has been imposed upon, and kept in ignorance of the true 
 state of the facts, the Court will deal leniently with such a case. 
 But ignorance of the fact that the party married is a ward of ignorance of 
 
 o • 1 J? 1 mfant being a 
 
 •Court is no defence ; ' and m one instance where a lemaie was ward of Com-t 
 
 made a ward of Court on the same day that she was married in ^° 
 
 Scotland, the marriage with her was deemed a contempt ;'" but if 
 
 the marriage is in other respects proper, it is a mitigation of the 
 
 offence." The contempt, if venial and slight, will be overlooked, 
 
 1 See lie Murray, 3 Dr. & W. 83, 86. ^ Herbert's Case, 3 P. Wms. 116. 
 
 ■* Svghes v. Science, cited Amb. 302 ; Maoph. Inf. Appdx. I. 
 
 * Earford v. Morris, 2 Hag. Con. Rep. 423. ^ P. 334- 
 
 " See Eerhert's Case {uU sup.) ; Priestley v. Lamb, 6 Ves. 421 ; Butler v. 
 -Freenmn, .^mb. 302. 
 • ' Smith V. Smith (ubi sup.) ; Oordon v. Irwin, 4 B. P. G. 355. 
 
 * Priestley v. Lamib (uh sup.) ; see Eodgens v. Hodrjens, 4 CI. & Fin. 323. 
 
 3 Barrington v. Grogan, Beatt. 199. '° Salles v. Savignon, 6 Ves. 572. 
 
 ^1 Bichardson v. Merrifield, 4 De G. & S. 161. 
 
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790 
 
 INFANTS. 
 
 [part IV. 
 
 contempt. 
 
 and nob be visited with any punishment, but, however, creates a 
 jurisdiction over the party in contempt which can be enforced 
 against him at any time in respect of the settlement of the pro- 
 perty of the ward.' 
 Punishment of If the offence is brought home to the parties they will be 
 punished with considerable severity until they are purged of the 
 contempt. The usual punishment is committal to prison. In 
 former days when the person in contempt was a peer, sequestra- 
 tion and not imprisonment was resorted to ; ^ but in modem 
 times privilege of Parliament would not prevent the contemnor 
 being sent to prison.' It does not, however, always follow that it 
 will be to the ward's interest that the person in contempt should 
 be punished by commitment ; the practice is accordingly to bring 
 the matter of the contempt before the Court by summons in 
 chambers and not in open Court, in order that the judge may 
 inquire whether it would be for the infant's benefit that the 
 contemnor should be committed. If the facts disclosed warrant 
 a committal, the Court on a motion to that effect will make an 
 order for the committal of the contemner.'' Commitment to 
 prison is not the only method pursued by the Court to punish 
 contemners of its jurisdiction ; but in very gross cases where it 
 does not consider commitment sufEcient, it will order criminal 
 proceedings to be taken against them for perjury or conspiracy.* 
 Where in a gross case the contemners can be punished not only 
 by imprisonment but in other ways, the Court will not hesitate to 
 visit them with a severe punishment ; thus a justice of the peace 
 will be removed from the commission, a barrister disbarred, and a 
 solicitor struck off the rolls.' 
 
 When the contemners have been committed to prison, they 
 will net be kept there for an indefinite time,' but after a certain 
 period will be liberated on their petition expressing contrition, 
 and declaring their willingness to submit to any such order as the 
 Court may think fit to make.* But the Court will not always 
 listen to the submission of the contemner, and liberate him from 
 confinement, if it does not think he has been sufficiently pun- 
 ished." The punishment for contempt is used not infrequently 
 as a means of compelling the party marrying the ward either to 
 
 Contemnors 
 not kept in 
 prison inde- 
 finitely. 
 
 Punishment 
 used to compel 
 contemnor to 
 execute 
 settlement. 
 
 ' See Martin v. Foster, 25 L. T. 0. S. 5. 
 
 2 Eyre v. Countess of Shaftesbury, 2 P. Wms. 103. 
 
 ^ Long Wellesley's Case, 2 R. & M. 639. * Brown v. Barrow, 48 L. T. 357. 
 
 ^ See Pearce v. Crvtchfield, 16 Ves. 48 ; Ball v. Coutts, i V. & B. 292 ; Wade v. 
 Bronghton, 3 V.& B. 172 ; Schreiber v. Latemard, 2 Dick. 592. 
 
 ^ Ex parte Mitchell, 2 Atk. 173. 
 
 ' Parties have been kept in prison as long as seven months ; see Baseley v. 
 Baseley, 4 CI. & Fin. 378 n. See Re Sampson and Wall, 25 Oh. D. 482. 
 
 s Simp. Inf. 337. 9 Baseley r. Baseley {ubi sup.). 
 
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CHAP, v.] WARDS OF COURT. 791 
 
 make or agree to a settlement approved by the Court.' The 
 Court will not order the discharge from prison of a person com- 
 mitted for contempt by marrying an infant ward, until a certifi- 
 cate has been produced of the due solemnization of the marriage, 
 and a proper settlement of the ward's property has been prepared 
 and approved.^ 
 
 The Court generally punishes the wrong-doer, if the husband, How the Court 
 in flagrant cases by depriving him of any interest in his wife's terms of the 
 property,' or by giving him a very slight share in it, unless settlement. 
 the husband brings in an equivalent provision, or the contrary guilty party, 
 would be for the ward's benefit.'' Where the female ward is the Wife guUty 
 wrong-doer, the Court will punish her by settling the bulk of her ^" ^' 
 property on the issue of the marriage ; but where as an infant she 
 has erred in ignorance of her position, it will settle her property 
 on her ; ^ so if her husband err in ignorance, the Court will be 
 more lenient/ 
 
 Marriage Settlements of Wards of Court. 
 
 This subject will in the following pages be more minutely Marriage 
 discussed, and from two points of vie\^ : (i) Where the mar- of wards of 
 riage is not in contempt of the Court ; and (2) where it is in ^°^^'^- 
 contempt. 
 
 (i) fl. Marriage of Minor Word with Leave and Consent 0/ Marriage of 
 the Court. — When a marriage of one of its wards is about to take with consent of 
 place with its leave and consent, the Court of Chancery directs ^™'^- 
 that a proper settlement shall be made, to take effect upon the 
 intended marriage. The settlements made by infant wards do 
 not derive any force and validity from the approval of the Court, 
 independently of the Infants' Settlement Act, 1855,' under 
 the provisions of which infants can, with the approbation of the 
 Court, make binding settlements of their property, if being 
 males they have attained the age of twenty, and if, being females, 
 the age of seventeen ; ^ and the parties must conform to the 
 requirements of the Act, otherwise the settlement will not be 
 binding.' 
 
 The Court has not laid down any hard-and-fast rules for its How the Court 
 own guidance, but acts as a prudent father would act.'" The '^ ^"' ^ ' 
 active interference of the Court is usually confined to keeping 
 
 1 Ball V. Ooutts (ubi sup.). ^ Cox v. Bennett, 22 W. E. 819. 
 
 5 Kent V. Burgens, II Sim. 361. ^ Field v. Moore, 24 L. J. Ch. 161. 
 
 ' Wilkinson v. Joughin, 41 L. J. Ch. 234. 
 
 " Richardson v. Merrifield, 4 De tt. & H. 161. ' 18 & 19 Vict. c. 43. 
 
 ' See ante, chap. iv. p. 777- 
 
 » Savill V. SavUl. 2 Coll. 72 ; Field v. Moore (ubi sup.). 
 ^'' Martin v. Foster {ubi sup.). 
 
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792 
 
 INFANTS. 
 
 [part IV. 
 
 Marriage of 
 ward after 
 attaining 
 majority. 
 
 the proposals of the parties within the liraits of what it considers 
 expedient and suitable to the circumstances, and of deciding in 
 case of a difference of opinion.' But the Court does impose 
 certain conditions when the parties apply for its leave to marry ; 
 thus, where the ward is a female, and the bulk of the property 
 moves from her, it will not sanction an exclusive settlement of 
 her fortune upon the issue of the first marriage ; but wiU cause 
 a clause to be inserted enabling her to provide for the issue of, 
 a subsequent marriage.^ There is a case of Be Horne's Trusts^ 
 in which the contrary was held, but the cases cited below in 
 the preceding note ia support of the above proposition do not 
 appear to have been mentioned to the Court. It will also pro- 
 vide by means of a trust for an equal division among all the 
 children by any marriage ; ■" or by giving the ward a power of 
 appointment over the trust funds in favour of a future husband, 
 and the issue of a future marriage." The Court usually inserts a 
 clause restraining the ward from anticipating her fortune during 
 coverture, but where it has omitted to do so, and she has in- 
 cumbered it, it will not rectify the settlement so as to prejudice 
 the claims of her incumbrancers.^ Where «the ward is illegiti- 
 mate, and so has no next of kin, the ultimate limitation is to her 
 absolutely.' 
 
 It was formerly usual to insert a clause settling after-acquired 
 property ; but it remains to be seen whether since the coming 
 into operation of the Married Women's Property Act, 1882,* the 
 Court will deem it necessary to make this provision, since the 
 property acquired by the wife during coverture is unaffected by 
 any rights of her husband. The Court would have ample juris- 
 diction to insert such a provision.' 
 
 The Court will rectify, after long lapse of time, a settlement, 
 the terms of which were not in accordance with the intention of 
 the ward, where it is possible to do so without interfering with 
 the acquired rights of others."" 
 
 A ward of Court on attaining twenty-one ceases to be wholly 
 
 1 3 Dav. Prec. Part I. 654. For the usual limitations of the settlement, see 
 3Dav. Prec. Part I. 68-70, 195. 
 
 2 Halsey v. Hahey, 9 Ves. 471 ; Budge v. Winnall, 11 Beav. 98 ; Long v. Long, 
 2 Sim. & St. 119. 34 G-iff, 254. J Millett v. Bowse, 7 Veg. 419. 
 
 ' 3 Dav. Prec. Pt. I., 656. ^ See Blachie v. Clark, 15 Beav. 607. 
 
 ' Kent V. Burgess, II Sim. 361. ' 45 & 46 Vict. c. 75. 
 
 ' Sect. 19. See ante, Part I. oh. viii. p. 135. 
 
 ^^ Smith V. Iliffe, L. li. 20 Eq. 666. This case was disapproved of hy the Court of 
 Appeal in Tucker v. Bennett (38 Ch. D. i). In Smith v. Iliffe the personalty of 
 the wife was limited on the death of the husband, and in default of children to the wife 
 as she should by will appoint, and in default of appointment to her next-of-kin. The 
 widow survived her husband and was childless, and sought to have the settlement 
 rectified. In her evidence she stated slie had no near relations, and did not know who 
 her next-of-kin were. 
 
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CHAP, v.] WARDS OF COURT. 793 
 
 under the control and jurisdiction of the Court, and can marry 
 without first obtaining the consent of the Court to his or her 
 union. But it does not follow that on the ward attaining 
 majority, the Court will in all cases relax its hold over the pro- 
 perty of its late ward which it retains in its own possession. A 
 female ward of Court, when of age, may make whatever settle- 
 ment of property she pleases, and may effectuate this by consent- 
 ing personally in Court, or under a commission for the purpose. 
 But where her consent is not so given her property will never be 
 discharged from the protection of the Court, except by its order ; 
 and, consequently, she and her property will always be con- 
 sidered as having its protection still around her.' The Court will 
 not allow a settlement sanctioned by itself to be defeated by the 
 parties delaying their marriage till the ward has attained majo- 
 rity." But whether the Court would enforce a settlement con- 
 trary to the wishes of both husband and wife is not a settled 
 point.' And in a recent case, though the wife was still a minor, 
 and there was contempt on the part of the husband of a very 
 flagrant and gross description, the Court of Appeal directed that 
 the settlement (a post-nuptial one), should be so drawn as to 
 give the wife power to appoint an interest in favour of her hus- 
 band in case she died without leaving issue.'' The lady's estate 
 consisted of personalty only. Kay, J., whose decision was over- 
 ruled, had decided that the husband should be excluded from 
 taking any interest whatever in his wife's property, and that she 
 should have no power to make an appointment in his favour, 
 even though there was no issue of the marriage living at her 
 death. The wife strongly objected to this scheme. The Court 
 will have regard to the wishes of the parties in the appointment 
 of trustees.* But the Court has certainly no jurisdiction to 
 compel a ward after attaining majority to execute a settle- 
 ment.^ 
 
 Where proposals for a settlement on the marriage of a ward Settlement 
 have been accepted and approved by the Court, as above stated, before m^ority 
 it will not permit the parties by delaying their marriage till the °* ™'''*- 
 ward attains majority to defeat the original settlement ; thus, delaying their 
 where a female infant had been made a ward of Court, and in ™oTouI^the°" 
 contemplation of her marriage terms for the settlement of her jurisdiction of 
 property and that of her intended husband (which were for the 
 benefit of the intended husband and wife, and the issue of the 
 marriage) had been approved by the master, and his approval had 
 
 ' Per Lord Eldon in Amten v. Salsey, 2 Sim. & St. 123 n. 125 n. 
 
 2 Money v. Money, 3 Dr. 256. ' See Ma/rtin v. Foster, 25 L. T. 0. S. 5. 
 
 * Be Sampson and Wall, 25 Ch. D. 482. ■' Hid. 
 
 " See Re Leigh, Leigh v. Leigh, 40 Ch. D. 290. 
 
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794 INFANTS. [part iv. 
 
 been confirmed by the Court, it was held not to be competent to 
 the husband and wife, by delaying the marriage till after the 
 wife had attained her majority, and entering into fresh settle- 
 ments, to defeat the settlement of the Court.' 
 To attempt To attempt purposely to delay or defeat the provisions of the 
 
 doTo'isa ° Court is a contempt, and can be punished as such.^ Where in 
 contempt. q^q (.3,36 the parties (one being a ward of Court), having made 
 proposals for a settlement which the Court would not have 
 approved of about six months before the ward came of age,, 
 waited until the ward attained her majority, and then executed 
 the settlement in accordance with the proposals, the Court 
 claimed to exercise jurisdiction over the ward, and ordered the 
 settlement to be rectified in a manner suitable to the position of 
 the parties.' It will also consider itself not ousted of its juris- 
 diction by the mere lapse of time, though it will take into con- 
 sideration the rights and interests of persons who have come into 
 esse in the meantime.^ The Court will rectify an improper 
 settlement made after the ward has attained majority, unless she 
 consents to be bound by it.^ 
 Settlement not "Where a female ward of Court has attained maiority and 
 
 agreed upon . tt >/ 
 
 before majority marries, but she and her husband have not previously agreed 
 ^^"^ ■ upon or executed a settlement, the Court cannot, except the 
 
 conduct of the parties has amounted to what, under other circum- 
 stances, would be a contempt of Court, enforce upon them the 
 acceptance of any particular settlement." But where the fund 
 belonging to the ward is in the hands of the Court, a different 
 practice seems to prevail, and the Court retains its jurisdiction 
 over the property of a ward of the Court after the ward attains 
 twenty-one, so long as the property remains in Court ; and if the 
 ward marries, it will order a proper settlement to be made, or 
 reform an improper one, unless the ward consents to the settle- 
 ment either in Court, or under a commission.' But where the 
 sum is small, and expense and inconvenience would attend its 
 being kept in Court as a settled fund, the Court will order it to be 
 paid out to the ward ; ' and now to the ward alone, and not, as 
 was sometimes done, to the husband.' But the Court has not 
 the power to compel a male ward to execute a settlement exclud- 
 ing the wife from all participation in his fortune.'" 
 
 '■ Hobson V. Ferrahy, 2 Coll. 412. ^ See Biddies v. Jackson, W. E. 248. 
 
 ^ Money v. Money, 3 Dr. 256. '' Cave v. Cave, 15 Beav. 227. 
 
 ^ Long Y. Long, 2 Sim. & St. 119. ^ See Bolton v. Bolton, [1891] 3 Ch. 270. 
 
 ' Austen v. JSalsey, 2 Sim. & St. 123 m. 
 
 ^ Longbottom v. Pearce, 3 De G. & J. 545 n. ; White v. Herrick; L. R. 4 Ch. 
 App. 345. In Sams v. Cronin, 22 W. R. 204, which followed White v. Serrich it 
 does not appear whether the sum in Court was large or small. 
 
 " Under the Married Women'.t Property Act, 1882, 45 & 46 Vict. u. 75. 
 
 i« Se Murray, 3 Dr. & "W. 83. 
 
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CHAP, v.] WARDS OF COURT. 795 
 
 Where the marriage has been in contempt of Court, the punish- Marriage in 
 ment for the offence is frequently used for the purpose of com- cTourt™^* °^ 
 pelling the party marrying the ward to make or agree to a 
 settlement approved by the Conrt, which refuses to allow the 
 offending party to purge the contempt without making (if able 
 to do so) a proper settlement. The principle by which the Court 
 is guided is that the offending party shall not derive any benefit 
 from his wrong. 
 
 As has been before pointed out, the contempt may vary in Gross 
 its nature ; in some instances it is gross, in others it is venial ; °°''*^™P*- 
 and the Court always draws a distinction between gross and 
 flagrant cases, and those in which it is mitigated.' In 
 flagrant cases of contempt, the Court visits the offending party, 
 if the husband, not only with the physical punishment of com- 
 mitment, but goes further, and deprives him, as a rule, of all 
 benefit and interest in the ward's fortune ; ^ or gives him but a 
 very small share of it, unless he brings in an equivalent provi- 
 sion, or the depriving him of such interest would be to the 
 detriment of the ward.' The husband who is guilty of con- 
 tempt is excluded as against the wife altogether, and generally as 
 against the children, but it is usual to allow the wife power to 
 appoint an interest in favour of her husband in the event of there 
 being no issue." Where the female ward is the wrong-doer, 
 the Court will punish her by settling the bulk of her property on 
 the issue of the marriage. 
 
 In cases where the contempt is venial in its nature, the Court Mitigated 
 will take that fact into consideration, and be correspondingly """^ "^^ ' 
 lenient in its treatment of the offending party, and if the married Husband's 
 ward be a female, will under certain circumstances allow the ^jfe is ward, 
 husband to enjoy a portion of her income during his life ; ^ so, 
 where both parties were ignorant that the female infant was a 
 ward the Court on petition settled her property on her for life, 
 with remainder to her children ; and with a power for the wife 
 to appoint the property by will to her husband for his life." 
 Again, where the husband married in ignorance that his wife was 
 a ward of Court, the Court approved of a settlement by which a 
 considerable portion of the wife's fortune was paid to the hus- 
 band, and he was given a life interest in the moiety of the 
 residue of her fortune, if he survived her.'' In most of the 
 cases the husband has been a man of no property, who married 
 
 ^ See ante, pp. 789 et seq. 
 
 ' Kent V. Burgess, II Sim. 361 ; U^ade v. Hopldnson, 19 Beav. 613. 
 
 " Birhett y. Hibhert, 3 Myl. & K. 227 ; Field v. Moore, 24 L. J. Ch. 161. 
 
 " Anne Walker's Case, LI. & G. 325 ; see Be Sampson and Wall, 25 Ch. D. 482. 
 
 "^ Batlmrst v. Murray, 8 Ves. 74. '^ WilUnson v. JoucjMv, 41 L. J. Ch. 234. 
 
 ' Bicliardson t. Merrifield, 4 De G. & S. 161. 
 
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796 INFANTS. [part iv. 
 
 apparently for the sake of the fortune; and the Court has generally 
 refused to give him any interest in the property ; ' but where 
 he is of equal rank and fortune with the wife, and makes an 
 equivalent provision for her out of his own property, it does not 
 seem that the same rule would be enforced ; and where the hus- 
 band had no property, and the contempt was not a flagrant one, 
 the costs of the settlement (including the husband's) were ordered 
 to be paid out of the funds ; '' and even in a very flagrant case, 
 in which the husband had been convicted of a conspiracy, he was 
 allowed to receive a sum of ;£^2000 out of his wife's fortune, in 
 order to pay debts which he alleged he had contracted for her.' 
 
 The matter may be thus shortly put : The Court may vindicate 
 its jurisdiction by committing the contemner to prison ; but when 
 he is a person of equal rank and fortune with his wife, and is 
 willing to make an equivalent provision on his side, the Court will 
 give him an interest in his wife's fortune, if necessary, which it 
 would refuse to a needy adventurer. 
 Jurisdiction of The Court has claimed the power under the Infants' Settlements 
 Infants' Settle- Act, 1 8 5 5 >* to direct a settlement of a male or female infant's 
 ™®°*'' ■^'''' property, being a ward of Court, even after the marriage has taken 
 place.^ But whether this claim is rightly founded is a question 
 which calls for a clear decision from the highest tribunal.^ In a 
 late case the Court held it had no jurisdiction under this Act to 
 compel an infant ward of Court to make a settlement of his own 
 property because he had been guilty of contempt in marrying 
 without leave.' 
 Taking wards The Court of Chancery will not, as a rule, allow its wards 
 urisdiction. ^ 1)6 removed out of the jurisdiction ; if they could be so 
 removed without its leave, it would have no guarantee that 
 they would be brought up and treated in a manner of which 
 it would approve ; and they might contract marriages which 
 it never would have sanctioned; in fact, it would lose all 
 control over them both in the present and in the future. The 
 Court will enforce its orders not only against strangers, but 
 against guardians,^ and even against the father himself.' It 
 will order its wards to be brought . back who have been taken 
 abroad without its permission.'" 
 
 1 Ball V. Coutts, I V. & B. 292, 303. ^ Anon. 4 Russ. 473. 
 
 ' Pearce v. Orutchfield, 16 Ves. 48. Dav. Prec. vol. iii. Pt. I. 659. 
 * 18 & 19 Vict. c. 43. 
 
 ' Be Sampson and Wall, 25 Ch. D. 482 ; Se Phillips {an Infant) 34 Cb. D. 469. 
 ^ See Seatou v. Heaton, 13 App. Cas. 61 ; Be Leigh, Leigh v. Leigh, 40 Ch. D. 290. 
 ' Be Leigh, Leigh v. Leigh (vhi sup.). 
 ' Newport v. Moore, i Dick. 166. 
 
 " Be Fynn, 2 De G. & S. 457 ; Be Phmleij, Vidler v. Collyer, 47 L. T. 283. 
 '" Foster v. Denny, 2 Ch. Cas. 237. 
 
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CHAP. V.J WARDS OF COURT. 797 
 
 To remove an infant out of the jurisdiction is a serious contempt, Eemovai with- 
 which the Court will punish severely by commitment to prison ; sotious™ n- 
 and privilege of Parliament will be no protection against such com- *^™P*' 
 mittal.' Before an infant ward can be properly removed out of Wheu leave 
 the jurisdiction, the leave of the Court must be first obtained. ^'''"^*'^'^- 
 The Court was wont not to grant it very readily,'^ but did accede 
 from time to time to the request to remove them." Its practice 
 was to refuse an order permitting its infant wards to be removed 
 oat of the jurisdiction, with a view to their residing permanently 
 abroad, except in a case of imperative necessity, as where it is 
 clearly proved that a constant residence in a warmer climate is 
 absolutely essential to their health ; ' and such an order, if made, Court must be 
 comprised a scheme for the education of the infants, as well as a ward's pro- 
 provision for informing the Court from time to time of their ^j^yg^^^j^J'jg 
 progress and condition, and an undertaking to bring them within whereabouts. 
 the jurisdiction when required.'' But in modern times the Court infant's 
 is less strict in the exercise of this jurisdiction, and leave is now 
 given to take an infant ward out of the jurisdiction without a 
 case of necessity being shown ; but the Court must be satisfied 
 that the removal is for the infant's benefit, and that future orders 
 will be obeyed. Security in this respect is generally attained by 
 appointing a guardian to act jointly in this country with the 
 parent.^ Where it is intended that the wards should go abroad 
 for a temporary residence, for the purposes of health and recrea- 
 tion, or for education, leave is more readily granted ; but the 
 Court will insist upon security being given for the due return of 
 the wards, and especially that they should not be married without 
 its leave.' The Court will not allow its wards without leave to 
 enter the army, or navy, thereby becoming liable to be removed 
 out of the jurisdiction ; ' though where it is for their benefit that 
 they should remain in the service, leave will be obtained." If a 
 father is obliged to leave the jurisdiction, and his children are 
 wards of Court, he will in general be permitted to take them with 
 him ; but in such a case he will be compelled to keep the Court 
 informed from time to time by proper vouchers of the plan of the 
 education of the wards, and of their residence ; '" so, too, a sick 
 mother who travels abroad to recruit her health, will be permitted 
 to take her infant child (a ward of Court) with her." And where 
 
 ' Welledey v. Dulce of Beaufort, 2 Russ. & Myl. 639. 
 
 ^ See Mountstuart v. Mountstuart, 6 Ves. 363, and De Manneville \: Be, Minmc- 
 ville, 10 Ves. 52. ' Jackson v. Hanhey, cited as Anon. Jac. 265 n. 
 
 ^ Campbell v. Mackay, 2 Myl. & Cr. 31. " Ibid. 
 
 ^ Be Oallaghan, EUiott v. Lambert, 28 Ch. D. 186. 
 
 ' Jeffreys v. Wanteswarstwarth, Barn. Ch. 141 ; Be Medley, 6 Ir. R. Eq. 339. 
 " Bochford v. Hachman, Kay, 308. " Jl/irrison v. Goodall, Kay, 3io'«. 
 
 '" JaclsoH V. Uankey [uU sup.). ^^ Lyon v. Watson, cited Chamb. Inf. 32. 
 
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798 
 
 INFANTS. 
 
 [PAET IV. 
 
 A case for 
 removal muBt 
 be made out. 
 
 ward of Court 
 purposely to 
 prevent Ms 
 removal. 
 
 the intention is not to keep the wards permanently abroad, or, in 
 the case of females, where they have arrived at years of discretion^ 
 leave of the Court to go abroad will be granted, for travelling 
 purposes,' or on account of ill health,^ or to visit relations,' or a 
 
 Wards aiio-wed sick parent." Wards, too, have been allowed to reside abroad ; 
 
 abroad, if for thus, two sisters, wards, arrived at years of discretion, were allowed 
 
 their benefit, -jjq ijyg with their aunts (their only relations), who resided abroad ;' 
 a female ward was allowed to join her stepfather in India, the 
 Court being satisfied that she would be properly looked after 
 on the voyage, and on her arrival in India ; ° and a girl of eighteen 
 was allowed to reside with her brother abroad, her guardian 
 consenting.' 
 
 But since, under ordinary circumstances, a ward of Court 
 cannot be removed out of the jurisdiction, those who seek its 
 removal must make out a case for that purpose. But where an 
 
 Except where infant is made a ward of Court solely for the purpose of prevent- 
 ing his removal from this country, the obligation is shifted, and 
 the onus of showing that it is not for his benefit to remain at 
 home lies upon the party seeking to restrain his removal.* Leave 
 may now be given to take a ward out of the jurisdiction without 
 a case of necessity being shown, if the Court is satisfied that the 
 removal would be for the infant's, benefit, and there is sufilcient 
 security that future orders will be obeyed.' 
 
 It is not only a contempt to take away, or attempt to take 
 away, a ward out of the jurisdiction, but also to conceal from the 
 Court the place of residence of the ward, whether it be within or 
 outside of the jurisdiction ; and all parties who either know, or 
 are supposed to know, of its place of residence, can be summarily 
 ordered to give such information as is within their knowledge. 
 This jurisdiction of the Court is not based upon the law or theory 
 of contempt of Court, for the parties ordered to supply the 
 information may be quite innocent of any contempt, constructive 
 or actual, but on the power of the Court of Chancery as the 
 protector and upholder of the interests of infants, exercising 
 the delegated powers of the crown as parens patrice.^" It is not 
 absolutely necessary that the infant should be a ward to give the 
 Court jurisdiction to insist upon those who are aware of its place 
 of concealment affording the requisite information." There is no 
 
 ^ Spencer v. JSarl of Chesterfield, Amb. 146. 
 ^ Wyndham v. Lord Ennismore, 1 Keen, 467. 
 
 = Ex parte M'Key, i B. & B. 405. ■* Biggs v. Terry, i Myl. & Cr. 675. 
 
 ^ Jeffreys \. Wanteswarstwarth, Barn. Ch. 114 ; see also Z)awsoK v. Jay, 23 L. T. 
 0. R. 239. ^ Campbell v. Campbell, cited Chamb. Inf. 30. 
 
 " Clofjstouii V. Walcolt, 9 Jur. 649. 
 
 * Pfir Jessel, M.E., in Be Plomley, Vidler v. Collyer, 47 L. T. 283. 
 " Be Oallaghan, Elliott v. Lambert, 28 Ch. D. 185. 
 " Eosaihe'g v. Lindo, 48 L. T, 478. '^ Be Sjience, 16 L. J. Ch 309. 
 
 Disclosure of 
 residence of 
 ward. 
 
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CHAP, v.] WAEDS OF COURT. 799 
 
 doubt an expression of opinion by Lord Cottenham in the case of 
 Be Spence,^ to the effect that the Court cannot compel parties who 
 have not the infants in their custody to disclose facts of which 
 they are the mere witnesses ; but, as was pointed out by Ohitty, 
 J., in Bosenberg v. Zindoj' the observation was not material to the 
 decision of that case. The contrary practice has been clearly 
 established, and it is now settled that no person whatsoever is 
 entitled to conceal the residence of a ward, or do anything which 
 will prevent the Court from having access to its wards, and putting 
 them under proper protection.' Thus, a solicitor has been held 
 bound to give to the Court any information which may lead to 
 the discovery of the residence of a ward of Court whose residence 
 is being concealed from the Court, although such information may 
 have been communicated to him by his client in the course of his 
 professional employment, and was ordered to produce the 
 envelopes of letters which he had received from her as her 
 solicitor, with the object of discovering her residence from the 
 postmarks.^ So, too, a Roman Catholic bishop and the superior 
 of a Roman Catholic convent were in one case ordered summarily 
 to attend before the Court on a priwd facie case for supposing 
 that they were able to give information as to the place of 
 residence of a ward of Court who was not in the custody of her 
 parents.^ 
 
 ' Vbi sup. " Vbi sup. ■'■ Samsbotham v. Senior, L. E. 8 Eq. 575. 
 
 ■" Ibid. ; Burton v. JEarl of Darnley, L. R. 8 Eq. 576 ». 
 ' Rosenberg v. Lindo {tibi sup.). 
 
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CHAPTER VI. 
 
 EEMEDIES FOR THE PEOTEOTION OF INPAJStTS. 
 
 As KEGABDS the PbKSON" : 
 
 Habeas Cokpus fob Illegal Detention 
 
 Action fok Personal Injuries .... 
 
 conteibutory negligence 
 
 Identification op Infant with Adult in Charge 
 Industrial Schools' Acts 1866 and 1880 
 Act for the Protection op Infant Life, 1872 
 Dangerous PeefoeMjUtces Act, 1879 
 Criminal Law (Amendment) Act, 1885 . 
 Intoxicating Liquors (Sale to Children) Act, 1886 
 Coal Mines Regulation Act, 1887 
 Factory and Workshops Act, 1878 and 1891 
 
 Shop Hours Act, 1892 
 
 Peevention of Cruelty to Children Act, 1894. 
 Betting and Loans Act, 1892 .... 
 As Regards Property: 
 
 Possession of Stranger that op Bailiff oe Teustee 
 
 Account foe Mesne Peopits 
 
 Action foe Recovery of Land 
 
 Statute op Limitations 
 
 800 
 801 
 801 
 803 
 803 
 803 
 803 
 804 
 804 
 804 
 805 
 805 
 805 
 806 
 
 806 
 806 
 806 
 S06 
 
 This chapter will be divided into two portions : First, the reme- 
 dies possessed by infants in respect of wrongs done to their 
 persons; secondly, remedies in respect of wrongs done to their 
 property. 
 As regards the I . As Regards the Person. — If an infant is detained in illegal 
 peison. custody, he is just as much entitled to be liberated from that 
 
 Haheas corpus illegal custody or restraint as if he were an adult ; he is, there- 
 
 Tor illi^firflrl 
 
 detentior. fore, entitled to a writ of habeas corpus. The father or mother,' 
 
 or legal guardian,^ is primd facie entitled to the writ ; but by 
 
 recent decisions the Courts have arrogated to themselves the 
 
 jurisdiction to interfere with the parental and tutorial rights 
 
 where they conceive the interests of the infant require them to 
 
 do so.' 
 
 ' See ante, Part II. Parent and Child, chap. ii. pp. 496 et seq. 
 
 " See ante. Part III. Guardian and Ward, chap. v. p. 630. 
 
 " See He Brown, 13 Q. B. D. 614 ; Meg. v Oyngall, [1S93] 2 Q. B. 232 ; 54 & SS 
 
 Vict. 0. 3. 
 
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CHAP. VI.] REMEDIES FOR PROTECTION. 801 
 
 An iijifant is entitled to redress for personal injuries inflicted Action for 
 upon him by the negligence or default of another, though he him- fnYuries! 
 self may be a trespasser.' 
 
 There is no doubt that an infant who has arrived at years of Contributory 
 discretion, though not legally of age, may disentitle himself to "^si's«i"^«- 
 recover damages by way of compensation for injuries brought 
 about by his own negligence or default. But whether an infant infant of 
 of tender years can by his contributory negligence so disentitle ^'^'^^"'^ y'^*'^^" 
 himself is more open to question, and the authorities are 
 somewhat at variance, the earlier cases going to show that he can 
 maintain his action, the later ones that he cannot. Thus, it has 
 been held in one case'' that the doctrine of contributory negli- 
 gence does not apply to an infant of tender age ; and to disentitle 
 him to recover, it must be shown that the injury was occasioned 
 eatirely by his own negligence. And where the defendant 
 negligently left his horse and cart unattended in the street, and 
 the plaintiff, a child seven years old, got upon the cart in play, 
 and another child incautiously led the horse on, and the plaintiff 
 was thereby thrown down and hurt, the defendant was held 
 hable, though the plaintiff was a trespasser and contributed to 
 the mischief by his own act.^ The question is really whether 
 an infant of tender years can be said, by reason of his want of 
 experience and an incapacity to rightly judge of the probable 
 result of his acts, to be guilty of negligence. In the course of 
 his judgment in Lynch v. Niirdin (which was that of the Court), 
 Lord Denman said : " In the present case . . . the plaintiff him- 
 self has done wrong ; he had no right to enter the cart, and, 
 abstaining from doing so, he would have escaped the mischief. 
 Certainly he was a co-operating cause of his own misfortune by 
 doing an unlawful act ; and the question arises whether that fact 
 alone must deprive the child of his remedy. The legal proposi- 
 tion that one who has by his own negligence contributed to the 
 injury of which he complains cannot maintain his action against 
 another in respect of it, has received some qualifications. Indeed, 
 Lord BUenborough's doctrine in Butterfield v. Forrester (3 B. & 
 Aid. 304), which has been generally adopted since, would not set 
 up the want of a superior degree of skill or care as a bar to a 
 claim for redress ; ordinary care must mean that degree of care 
 
 ' Jay V. Whitfield, cited in Bird v. HoTbroolc, 4 Bing. 644 ; Ihtt v. Wilhes, 3 B. & 
 Aid. 304 ; Collins v. Lefevre, I F. & F. 436. 
 
 ^ Gardner v. Grace, i F. & F. 359. 
 
 ' Lynch v. Nurdin, 10 L. J. Q. B. 73. This case has been commented upon in 
 Lygo V. Newlold, 9 Exch. 302 ; but it has in part been restored to the position of an 
 authority by Cockbum, C.J., in Clark v. Chambers, 3 Q. B. D. 327-, but his lordehip 
 did not deal with the question more nearly affecting the present topic, viz., whether an 
 infant could be disentitled to maintain his action by reason of his contributing to his 
 own mishap. 
 
 3E 
 
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802 INFANTS. [paet it. 
 
 which may reasonably be expected from a person in the plaintiff's 
 situation, and this would evidently be very small indeed in so 
 young a child. But this case presents more than the want of 
 care ; we find in it the positive misconduct of the plaintiff an 
 active instrument towards the effect. . . . But the questioji 
 remains, can the plaintiff, then, consistently with the authorities, 
 maintain his action, having been at least equally in fault ? The 
 answer is, that supposing that fact ascertained by the jury, but to 
 this extent, that he merely indulged the natural instinct of a 
 child in amusing himself, . . . then we think that the defendant 
 cannot be permitted to avail himself of that fact. The most 
 blameable carelessness of his servant having tempted the child, 
 he ought not to reproach the child with yielding to that tempta- 
 tion. He has been the real and only cause of the mischief. He 
 has been deficient in ordinary care. The child, acting without 
 prudence or thought, has, however, shown those qualities in as 
 great a degree as he could be expected to possess them. His 
 misconduct bears no proportion to that of the defendant which 
 produced it."' 
 
 In the following cases he has been held disentitled to recover. 
 A child three years and a half old strayed upon a railway, and had 
 its leg cut off by a passing train, there being no evidence to show 
 that the child got there through any neglect or default on the 
 part of the company.^ The defendants, in another case, were 
 the occupiers of a warehouse on one side of a street into which 
 their cellar opened. The public had a right of way over the 
 whole street subject to the existence of the cellar, but the only 
 flagged footpath was on the other side. The defendants took off 
 the lid which covered their cellar, and left it nearly upright 
 against their wall. A child jumped from the lid and pulled iib 
 over, injuring himself and another child. The defendants under 
 these circumstances were held not liable at the suit of the child, 
 who had voluntarily meddled for no lawful purpose with that 
 which if left alone would not have hurt him.^ K another child 
 in no way concerned with the act of the first child which causes 
 the mischief is injured by such act, it would be entitled to 
 recover, though if he were a joint actor with him he would not.'' 
 
 ^ In an American case (Plumley v. Birge, 124 Mass. 57) it is said that the age of 
 the plaintiff is an important fact for the consideration of the jury ; that is, that want 
 of ordinary care, which would be no bar to redress in the case of an infant of tender 
 years, would disentitle an older child to recover compensation for injuries. This case, 
 however, would probably, on the merits, have been differently decided in England. As 
 to greater protection to be afforded to infants or infirm persons as being unable to take 
 care of themselves, see Williams v. O. W. My. Co., L, R. 9 Exoh. 137, per Kelly, C.B. 
 
 ^ Singleton v. Eastern Counties Jiaihray Co., 7 C. B. N. S. 287. 
 
 ' Hughes V. Macfie, 33 L. J. Ex. 177. * Abbott v. Macfie, ibid. 
 
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CHAP. VI.] REMEDIES FOR PROTECTION. 803 
 
 So, where the defendant exposed in a public place for sale, 
 unfenced and without superintendence, a machine which might 
 be set in motion by any passer-by, and which was dangerous 
 when in motion, and the plaintiff, a boy four years old, by the 
 direction of his brother, seven years old, placed his fingers within 
 the machine whilst another boy was turning the handle which 
 moved it, and his fingers were crushed, the plaintiff was held 
 disentitled to maintain any action for the injury.' 
 
 An infant of tender years is so identified with the adult who infant identi- 
 has the charge and control of it that if it receives injuries under ^j'^jr-"' *u® 
 circumstances which disentitle the adult to recover, it will itself charge he is. 
 be unable to recover compensation;^ but where such adult is 
 guilty of a mere default or mistake in respect of the infant, which 
 if happening in his own case would not disentitle him to recover, 
 then the infant may recover compensation for injuries notwith- 
 standing such default or mistake.^ 
 
 Where an infant sues for damages for personal injuries, he 
 cannot include a claim for the expenses paid by his parents for 
 his cure ; though if they had come out of his own funds, he 
 might so include them.'' 
 
 Several statutes have been passed in recent years for what Acts for the 
 may be termed the moral, social, and physical protection of young young ohU° 
 children, some of which will be shortly summarized in the follow- '^^°' 
 ing pages. 
 
 Under the Industrial Schools Acts 1866' and 1880/ the industrial 
 justices have power to summon a young girl under fourteen who isee and isso. 
 is living with prostitutes with a view of removing her from 
 their company, and sending her to an industrial school/ 
 
 To prevent infanticide and protect infant life, persons intrusted Act for the 
 with the care and custody of infants to be nursed or maintained infant Life, 
 for hire, must register their houses for that purpose, if they wish ^^^a- 
 to retain or receive for hire two or more infants for a longer period 
 than twenty-four hours.* 
 
 So, also, in order to prevent the lives of children of tender Dangerous 
 years being risked in dangerous performances, it has been pro- Act, 1879. 
 vided by the Act to regulate the employment of children in places 
 of public entertainment in certain cases,' that any person who 
 
 ' Mangany. Atterton.,!,. R. i Ex. 239. But see Clarh-n. Chambers, 3 Q. B. D. 327. 
 
 ^ Waite V. North-Eastern Railway Co., 28 L. J. Q. B. 258. Though Lord Bram- 
 ■well disapproved of the decision in this case in Mills y. Armstrong, 13 App. Cas. i, in 
 which he prepared a speech but did not deliver it, yet the other members of the House 
 of Lords thought this case was distinguishable from that of Thorocjood v. Bryan (8 C. B. 
 115) which they overruled. 
 
 * Austin v. Great Western Railway Co., L. B. 2 Q. B. 442. 
 
 ^ Collins V. Lefevre, i P. & F. 436. " 29 & 30 Vict. c. 118, s. 14. 
 
 « 43 & 44 Vict. 0. 15, B. I. '' Reg. v. Moore, 52 J. P. 375. 
 
 * 35 & 36 Vict. c. 38. 9 42 & 43 Vict. 0. 34. 
 
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804 INFANTS. [paet iv, 
 
 shall cause any child under the age of fourteen to take part in 
 dangerous performances, and the parent or guardian, or person 
 having the custody of such child, who shall aid and abet the 
 same, may be summarily convicted, and fined in a penalty not 
 exceeding ten pounds.' 
 Criminal Law The Criminal Law Amendment Act, 1885,^ was passed for the 
 Act, 1885. purpose of extending the protection of the law over young girls. 
 Carnal knowledge of a girl under thirteen is a felony f and the 
 attempt to have such carnal knowledge is a misdemeanour." 
 The carnal knowledge or attempt to have carnal knowledge of 
 a girl above thirteen and under sixteen is a misdemeanour.* It 
 is a defence to a charge of this offence that the accused had 
 reasonable cause to believe the girl was of or above the age of 
 sixteen.^ Any householder who permits on his premises the 
 defilement of a girl under thirteen is guilty of a felony/ and of 
 a girl between thirteen and sixteen of a misdemeanour ;* this is 
 equally the case where the girl is his own daughter." The 
 abduction of a girl under eighteen for the purpose of being 
 carnally known is a misdemeanour." It is a defence to a charge 
 of this ofience that the accused had reasonable cause to believe 
 the girl was of or above the age of eighteen." Any house in 
 which it is reasonably suspected that a girl under eighteen is 
 detained (and if over eighteen against her will) for immoral 
 purposes may be searched, and if the girl is found there she 
 may be delivered up to such person as the Court may think fit.'^ 
 When the seduction or prostitution of a girl under sixteen is 
 proved to have been caused, encouraged or favoured by her father, 
 mother, guardian, master or mistress, the Court may divest such 
 father, mother, guardian, master or mistress of all authority 
 over her, and appoint other willing and fit persons to take charge 
 of her.'' 
 Intoxicating Under the Intoxicating Liquors (Sale to Children) Act, 1886,'* 
 
 to OMidren) * the Sale of intoxicating liquor to any child under thirteen for 
 Act, 1886. consumption on the premises is illegal.'" 
 
 Coal Mines Under the Coal Mines Eegulation Act, 1887,'" no boy under 
 
 Act" ss'j.'' twelve or girl at all shall be employed in a mine below ground ;'' 
 
 and no boy over twelve shall be employed in any underground 
 
 mine for more than fifty-four hours in any week,'* No boy or 
 
 girl under twelve shall be employed in connection with any mine- 
 
 ' 42 & 43 Vict. 0. 34, a. 3 ; see 57 & 58 Vict. c. 41, s. 2. ^ 48 & 49 Vict. c. 69. 
 
 3 Sect. 4. ■* Ibid. = Sect. 5. 
 
 " Jbid. Beg. v. Packer, 16 Cox, C. C. 57. , 
 
 =■ Sect. 6. 8 2bid. 9 Beg. v. Wehster, 16 Q. B. D. 134. 
 
 ^^ Sect. 7. -"^ Ibid. Reg. v. Packer (nhi sup.). 
 
 ^- Sect. lo. 1' Sect. 12. " 49 & 50 Vict. u. 56. 
 
 IS Sect. I. 1" SO & 51 Vict. i;. 58. -'■ Sect. 4. ^^ Sect. 5. 
 
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CHAP. VI.] REMEDIES FOR PROTEOTION. 805 
 
 above ground.^ No boy or girl under thirteen shall be so 
 employed for more than six days in any week ; or if employed 
 for more than three days in any week for more than six hours in 
 any one day, or in any other case for more than ten hours in 
 any one day.^ No boy or girl of or above thirteen shall be 
 employed for more than fifty-four hours in any one week or ten 
 hours on any one day.^ 
 
 To prevent young children being overworked when engaged Factory and 
 in certain employments, and to provide for their education, the ^cts, 1878^ 
 Legislature in the Factory and Workshops Acts, 1878^ and ^""^ '^ei:- 
 1891,° has laid down regulations for the amount of time they 
 may work at certain trades, the period to be allowed for their 
 meals, and to prevent their work from interfering with their 
 education. ° A child under eleven is not to be employed in a 
 factory ; ' and a child is not to be allowed to clean machinery in 
 motion.' 
 
 Under the Shop Hours Act, 1892,° a young person, that is, shop Hom-s 
 one under eighteen,"" shall not be employed in or about a shop ° ' ^ 52- 
 more than seventy-four hours a week, including meal times." 
 This provision does not apply to the members of the shop- 
 keeper's family living with him or to a person wholly employed 
 as a domestic servant. ^^ 
 
 Under the Prevention of Cruelty to Children Act, 1894,'^ any Prevention of 
 person over sixteen who has the custody, control or charge of chMrenAct, 
 any child under sixteen, and wilfully assaults, illtreats, neglects, '^94- 
 abandons or exposes the child, or causes the child to be assaulted, 
 illtreated, neglected, abandoned or exposed in a manner likely to 
 cause unnecessary suffering or injury to its health, shall be guilty 
 of a misdemeanour." 
 
 A boy under fourteen or a girl under sixteen is not to be 
 employed for the purpose of begging in the streets, or to be in 
 public-houses or places of public entertainment between 9 p.m. and 
 6 A.M., or a child under eleven for any of the above purposes.'" 
 But a child over seven may be licensed under certain circum- 
 stances to take part in entertainments which are not likely to 
 cause injury to it.'^ Where a person who has charge of a child 
 is convicted of an offence towards the child under section i of 
 the Act, or is committed for trial for such offence, or bound over 
 to keep the peace towards the child, the Court may deliver over 
 the child to the keeping of some tit person.^^ 
 
 1 Sect. 7. 2 jjji^ i Sect. 3. ^ 41 & 42 Vict. c. 16. 
 
 ^ 54 & 55 Vict. u. 75. « 41 & 42 Vict. c. 16, sects. 11 to 17. 
 
 ^ 54 & 55 Vice. c. 75, 8. 18. « 41 & 41 Vict. c. 16, e. 9. 
 
 ' 55 & 56 Vict. 0. 62. ^'' Sect. 9. 
 
 " Sect. 3. See Hammond v. PuUford, [1895] i Q- B- 223. i^ ggct. 10. 
 
 " 57 & 58 Vict. c. 41. " Sect, i.' ^^ Sect. 2 (a) (h) (c). i" Sect. 3. i' Sect. 6 
 
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806 
 
 INFANTS. 
 
 [part IV. 
 
 Betting and 
 Loans (In- 
 fants) Act, 
 1892. 
 
 As regards 
 property. 
 I'ossession of 
 stranger that 
 of bailiff or 
 trustee. 
 
 Account for 
 mesne profits. 
 
 Action for 
 recovery of 
 land. 
 
 Statiate of 
 Limitations. 
 
 WTiere person 
 in a fiduciary 
 position is in 
 possession. 
 
 infant's 
 remedy not 
 barred till 
 twelve years 
 after majority. 
 
 In order to protect young persons from the temptation and 
 dangers of gambling and getting into debt the Betting and 
 Loans (Infants) Act, 1892/ was passed, under which any person 
 who for reward or profit sends any document to a person whom 
 he knows to be an infant for the purpose of inciting him to bet/ 
 or to borrow money/ shall be guilty of a misdemeanour. If an 
 infant has contracted a loan which is void in law, and has agreed 
 on attaining majority to pay money in respect of such loan, which 
 is not a new advance, such agreement or negotiable security 
 representing such agreement shall be void as against all 
 persons.'' 
 
 (2.) As regards Property. — As a rule, where a stranger enters 
 upon land, or gets possession of property belonging to an infant, 
 the latter is entitled to treat him as a bailiff or trustee, so that 
 his uninterrupted possession does not mature into a title, or bar 
 the infant's remedy, and the latter may obtain an account of the 
 rents and profits, and a decree for possession.^ 
 
 The account for mesne profits to which the infant is entitled " 
 is not limited to the period of the previous six years, for the 
 Statute of Limitations does not run against him ; ' though if the 
 infant allow more than six years to elapse after attaining majority 
 his right to such an account will be barred.' 
 
 There is, however, a distinction to be drawn so far as regards 
 bringing an action for the recovery of land between possession by 
 an actual stranger and one who is the parent or legal guardian of 
 an infant, or one who is so connected with the infant by relation- 
 ship or otherwise, as to have the duty imposed upon him of pro- 
 tecting, or, at any rate, not prejudicing, the infant's rights. In 
 the first case the stranger would not be treated as such bailiff or 
 trustee, whereas the parent or guardian would be so treated.^ 
 
 This difference is material as regards the time within which the 
 infant could assert his rights. Thus, " where a father is in pos- 
 session of an estate belonging to an infant child, he will, under 
 ordinary circumstances, be presumed to have entered on it as his 
 guardian or bailiff, and such possession during the infancy is one 
 on which the statute will not operate, and the entry on and pos- 
 session of an infant's estate by others than his father may be 
 made and retained under such circumstances as to make the same 
 rule applicable to him.'" Consequently, in such cases, if the person 
 so held to be guardian or bailiff continue in possession after the 
 
 1 55 & 56 Vict. u. 4. = Sect. i. ^ Sect. 2. ^ ■* Sect. 5. 
 
 ■'' See Dormer v. Fortescue, 3 Atk. 124, and Wall v. Stanwich, 34 Ch. D. 763. 
 
 '' Bennet v. Whitehead, 2 P. Wms. 644. 
 
 ' Nanney v. Williams, 22 Beav. 452. ^ Lochey v. Lochey, Prec. Ch. 51S. 
 
 " Thomas v. Thomas, 25 L. .J. Ch. 159. ^'' Pelhj r. Bascorr&e, 11 W. R. 766. 
 
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CHAP. vi.J REMEDIES EOR PROTECTION. 807 
 
 infant come of age, time does not begin to run against him till 
 that moment. The infant has thus the full period of (twelve) ' 
 years, after coming of age, wherein to recover possession ; and 
 this may obviously be, in many cases, a much longer period than 
 if he merely had the benefit of the saving provided for the dis- 
 ability of infancy." ° Under ordinary circumstances, if the person Where poe- 
 in possession is a stranger, the infant could not bring his action Tstrangerr 
 to recover the land after six years from the date of his maioritv, ™'^°''s , 
 
 -, , i J ■> remedy baiTed 
 
 when his disability ceased. six years after 
 
 The Court will take the tenderest care of the interests of ™*^°" ^' 
 infants, and in cases of difficulty and doubt will always grant an 
 order that the property in which they are interested shall be 
 administered under its supervision.* But such order will not 
 now be granted as of course at the expense of the estate because 
 a party to the suit is an infant.^ 
 
 Where an infant is the sole survivor in an account, or holds National Debt 
 stock jointly with a person under legal disability, or where stock *''' '^^^' 
 has by mistake been bought in or transferred into the sole name 
 of an infant, the Bank of England may, at the request in writing 
 of the parent, guardian, or next friend of the infant, receive the 
 dividends and apply them to the purchase of like stock, and the 
 stock so purchased shall be added to the original investment." 
 
 ' 37 & 38 Vict. u. 57, 8. I. ^ Darb. & Bos. Stat. Lim. 302, 303. 
 
 ^ 37 & 38 Vict. c. 57, s. 3 ; and see Thomas v. Thomas {ubi sup.). 
 * Re Wilson, Alexander v. Colder, 28 Ch. D. 457 ; Ord. i,v. r. 10. 
 5 Ee Blake, Jones v. Blake, 29 Ch. D. 913. 
 '' 55 & 56 Vict. u. 39, sect. 3. 
 
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CHAPTER VII. 
 
 ACTIONS BY AND AGAINST INFANTS. 
 
 Actions by Infants: 
 
 Actions at Law • Peochbin Amy 
 
 Actions in Equity : Next Fbiend. 
 
 Infant oe Representative cannot make Admissions 
 
 Who may be Next Feiend . ... 
 
 Who may not be 
 
 Next Fkibnd need not give Secubity poe Costs 
 
 INQUIEY AS to WHETHER SUIT BENEFICIAL, AND AS TO 
 
 Fitness of Next Feibnd 
 
 When Peoceedings Stayed oe Dismissed . 
 
 Geounds foe Removal of Next Feibnd 
 
 Infant attaining Majoeity dceing Pendency of Suit 
 
 Costs of Next Feibnd 
 
 Infant Plaintiff Boen aftee Judgment . 
 Actions against Infants : 
 
 Guardian ad litem . . ... 
 
 Who may and may not be Appointed 
 
 Service on Infant 
 
 Default of Appeaeance by Ikfant — Application to 
 
 Assign a Guaedian . .... 
 
 Appointment of New Guaedian . 
 Allegations of Fact not Denied by Infant not 
 
 Binding as Admissions 
 
 Infant not Liable to make Discoveey 
 
 Infant Boen after Judgment in an Action in which 
 
 HE becomes an Interested Party . 
 
 Costs 
 
 Proof of Infancy in an Action . ... 
 
 808 
 809 
 810 
 8io 
 810 
 811 
 
 811 
 812 
 812 
 814 
 814 
 815 
 
 81S 
 816 
 816 
 
 816 
 
 817 
 
 817 
 818 
 
 818 
 819 
 819 
 
 Actions hy Infants. 
 
 Actions at law. I. Actions at Law. — As an infant is legally lacking in discretion, 
 and is unable to render himself liable to the costs of an action, he 
 is incapable of bringing an action without the assistance of some 
 person who may be responsible to the Court for the propriety of 
 the suit in its institution and progress. "When an infant becomes 
 a plaintiff, the process is sued out in his name, but some person of 
 
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CHAP. Til.] ACTIONS BY AND AGAINST. 809 
 
 full age must conduct it for him. This person used to be styled " I'mcUein 
 in common law suits the ^' procliein amy" but now the Chancery ""'■"'" 
 designation of " next friend " is employed both in common law 
 and equity actions. There is now no distinction between the 
 common law and Chancery method of commencing actions, for the 
 latter practice is to prevail.' 
 
 2. In Equity. — The Courts of Equity always required that an Equity, 
 infant should sue by his next friend, not only because he was 1°^*°' """^t 
 supposed to lack discretion, and that, therefore, there must be friend, 
 some one responsible for the suit not being an improper one, but 
 also that there might be some one who woiild be responsible for 
 the costs incurred ; but an infant's next friend is not bound to 
 give security for costs f but where he is insolvent and seeks to 
 appeal, then he must give security for the costs of the appeal.'^ It 
 seems that the defendant may waive his right to have a next 
 friend appointed as security for his costs."* The next friend is 
 required not only in actions, but in petitions,^ motions, and all 
 other applications.^ A suit may be brought by an infant en ventre infant en 
 
 SamireP ventre sa mh-c. 
 
 The action when brought is at the suit of the infant, and not Action is at 
 that of the next friend,' though if an action is commenced on the infant. 
 behalf of an infant without a next friend, the defendant may 
 move to have it dismissed with costs to be paid by the solicitor." 
 But where an action has been commenced by the plaintiff as an 
 adult, and the defendant subsequently discovers that he is an infant, 
 the former may be allowed to amend by inserting a next friend.'" 
 
 1 Judicature Act, 1873, Ord. xvi. r. 8 ;-Eules of the Supreme Court, 1883, Ord. 
 ivi. r. 16. "Infants may sue as plaintiffs by their next friends, in the manner 
 heretofore practised in the Chancery DivisoD. " The old practice as to the appointment 
 of prochein amy, or guardian, is stated as follows in Archbold's Practice (vol. ii. 
 p. 1231, nth edition): "Let the person intended as prochein amy, or guardian, if 
 willing and able to do so, attend with the infant before a judge at chambers, who will 
 grant his fiat for one of the masters to draw up the rule. In the Common Pleas 
 he will at once grant the admission. In the Court of Queen's Bench and Exchequer 
 draw up the rule at the proper ofEoe. In the Common Pleas take the admission to the 
 master's oflSce, and get it entered on the remembrance roll, and leave the admission 
 there. Annex a copy of the rule -(or in tlie Common Pleas, of the admission) to your 
 declaration before you deliver it. If \he prochein amy, or guardian, and infant, cannot, 
 or is not willing to attend, write out a petition to be signed by the infant, directed to 
 the Chief Justice of the Court, praying to be admitted to prosecute, &o., by A. B. ; and 
 at the foot of it write a consent to be signed by the prochein amy, &c. ; and, lastly, 
 make an affidavit of the signing of the petition and consent. Let these be presented to 
 a judge at chambers, who will thereupon grant his fiat (or, in the Common Pleas, the 
 admission), and you proceed to draw up the rule, &c. , as is above directed." The 
 signature of the infant was under certain circumstances dispensed with, as, for example, 
 if he could not write, or was absent ; and no subsequent ratification by him was 
 necessary. 2 Hind v. Whitmore, 2 K. & J. 458 ; Set. Deo. 824. 
 
 = Swain v. Follows, 18 Q. B. D. 585 ; E. S. C. 1883. Ord. lvii. r. 15. 
 
 * Ex parte Brochlebank, Be Brocklehanh, 6 Ch. D. 358. 
 
 5 Jones V. Lewis, i De G. & S. 245. ^ Gox v. Wright, 9 Jur. N. S. 981. 
 
 ' See Waliis v. Hodson, .i, Atk. 114, 117 ; Bobinson v. Litton, 3 Atk. 209, 211. 
 
 ' Plight V. Bolland, 4 Russ. 298. ^ Dan. Ch. Fr. 106. 
 
 " Ibid. ; Flight v. Bolland {ubi sup.). 
 
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810 
 
 INFANTS. 
 
 [part IV. 
 
 Infant, gene- 
 rally, cannot 
 sue by next 
 friend in forma 
 paU2)eris. 
 
 Infant or repre- 
 sentative can- 
 not make 
 admissions. 
 
 "WTio may be 
 next friend. 
 
 "Who may not 
 be next friend. 
 
 An infant, broadly speaking, cannot sue by next friend m 
 formd pauperis;^ but where he is so circumstanced that he 
 can only obtain a pauper as next friend, and a special application 
 is made on his behalf, it seems that he might be allowed to sue 
 by such next friend in formd pauperis.' 
 
 In matters relating merely to procedure or to the conduct of 
 the cause, the next friend or guardian is competent to act so as 
 to bind the infant without obtaining an order of the Oourt.^ 
 
 An infant cannot make an admission against himself, nor can 
 his representative, such as a next friend ; therefore when he is 
 suing, whether in equity or at law, discovery by way of inter- 
 rogatories cannot be sought against him ; ■* nor by discovery of 
 documents;'* and the Judicature Act, 1873, has not brought 
 about any alteration.'' 
 
 The Court is not obliged to accept any and every person as the 
 next friend of an infant. The nearest relative of the infant 
 is supposed to be the person who will take the infant under 
 his protection (when circumstances require it), and prosecute 
 an action for the assertion of his rights, or the redress of his 
 wrongs. But as it frequently happens that the nearest relation 
 of the infant is the person who invades his rights, or at least 
 neglects to give that protection to the infant which his con- 
 sanguinity or affinity calls upon him to give, the Court, in favour 
 of infants, will permit any person to institute suits on their 
 behalf ; and whoever thus acts the part which the nearest 
 relation ought to take is styled the next friend of the infant. 
 The father, however, is the natural guardian of his children, and 
 if not adversely interested or otherwise disqualified, has a 
 paramount vested right to be appointed their next friend in 
 substitution for a stranger, who, without communicating with 
 him, has constituted himself their next friend and commenced an 
 action on their behalf.' 
 
 The next friend should not be a defendant, or a person whose 
 interests conflict with those of the infant;^ nor can he be a 
 receiver in the cause.' He ought to be an independent person 
 and in no way connected with the defendant ; and if he is so 
 connected, he will be removed, though as regards his personal 
 character and pecuniary position he would be a fit person.'" The 
 
 3 Xnatchhull v. Fowle, i Ch. D. 604. 
 ' Curtis Y.Mundy, [1892] 2 Q. B. 178. 
 
 ^ Anon. I Ves. 409. 
 
 ^ Lindsay v. Tyrrell, 2 De G. & J. 7. 
 
 * Mayor v. CoUins, 24 Q. B. D. 361. 
 
 * Mayor v. Collins (uhi sup.). 
 ^ Dan. Cb. Pr. 106 ; Woolf v. JPemherton, 6 Cb. D. 19. 
 
 * Lewis V. Nohhs, 8 Ch. D. 591. 
 
 ' Stone V. Wishart, 2 Madd. 64; Be Lloyd, Allen v. Lloyd, 12 Ch. D. 447. 
 ^° Re Bwrgess, Burgess v. Bottondey, 25 Ch. D. 243. 
 
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CHAP. VII.] ACTIONS BY AND AGAINST. 811 
 
 personal incapacity of a married woman to act as a next friend 
 seems not to be removed.^ 
 
 The next friend should be a person of substance, but he is Next friend 
 not required to give security for costs on the ground of poverty, security for'^ 
 because the Court is anxious not to discourage suits on behalf of <'°'^'^' 
 infants, and may restrain them if it thinks them improper.^ 
 
 Before the name of any person shall be used in any action as Authority of 
 next friend of any infant, such person shall sign a written ^"^j^^tbiTn 
 authority to the solicitor for that purpose.* But if his name writing. 
 be used without his consent, it will be struck out on his 
 application.* 
 
 The next friend has the conduct of the action in his power, Powers of the 
 , but only the conduct of it, and whatever he does must be for the ""^^ *"®°'^' 
 benefit of the infant; and if his conduct is not beneficial as 
 regards the interests of the infant the latter is not bound by it.' 
 But he is not a party to the action so as to be compellable to 
 make discovery as to documents,* or to answer interrogatories.' 
 
 Though the Court favours the bringing of suits on behalf of inquiry as to 
 infants, it will yet check any tendency to bring actions which are ^nefiSarand 
 clearly not for their benefit. Where a suit has been commenced "« t° fltne'ss of 
 on behalf of an infant, under circumstances raising a strong 
 suspicion against the motives of the next friend, the Court will 
 direct an inquiry whether the suit is for the benefit of the infant, 
 and if so, whether such next friend is a proper person to conduct 
 it, or otherwise who is a proper person to be appointed next friend 
 in his place.^ Where upon inquiry it appears that the action is 
 
 ^ Be DuJce of Somerset, Thynne v. St. Maur, 34 Ch. D. 465. 
 
 ^ Fellows V. Barrett, i Keen, 119 ; Murrell v. Chapman, 8 Sim. 74; and see 
 Pennington v. Alvin, 1 Sim. & St. 264. 
 
 ' E. S. C. 1883, Ord. XVI. r. 20. This authority la to be filed in the Central 
 Office, or in the District Registry, if the cause or matter is proceeding therein. 
 
 ■' WardY. Ward, 6 Beav. 251. 
 
 ^ Shades t. Swithenhanh, 22 Q, B. D. 577. For compromises sanctioned by the 
 Court, see Simp. Inf. 516. 
 
 ^ Be CorseUis, Lawton v. Elwes, 52 L. J. Ch. 399 ; Dyhe v. Stephens, 30 Ch. D. 
 189, in which Pearson, J., dissented from Higginson v. HaU, 10 Ch. D. 235. 
 
 ' Ingram v. LiitU, 11 Q. B. D. 251. 
 
 ' Nalder v. Hawkins, 2 Myl. & K. 243. In the course of bis judgment in this 
 case, L»rd Brougham enunciated the law on this point as follows: "The true 
 and just principle which should govern all such cases is this. No discouragement 
 ought to be thrown in the way of persons bond fide suing as next friends, but no 
 undue facility should be given to mere volunteers, who interfere rather for their own 
 purposes than for the infant's advantage. While they appear tu act bond fide they 
 will be protected ; the presumption will rather be in their favour, the proof will 
 rather be thrown upon those who impeach their motives, the leaning will be more for 
 than agaihst them. But no strained presumptions will be made to protect them, no 
 forced conBtructions will be put on their conduct, no benefit from bare possibilities will 
 be conjured up in their behalf. They must be content to have their mptives appreciated 
 and their acts judged like other parties. If they have involved themselves in suspicion, 
 their proceedings must be subjected to inquiry ; if they have incurred just blame, be it 
 by improper interference, or be it by unnecessary interference, they must abide the 
 consequences ; the suit at their instance must be stayed, or if the suit be useful to the 
 infant, but the parties instituting it be unfit to conduct it, they must give place to 
 
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812 INFANTS. [part iv. 
 
 When proceed- nofc for the benefit of the infant, either the proceedings will be 
 d^fmfs'se^d.'^ ™ Stayed, or else, if there is no excuse for the fact of the action 
 having been instituted, it will be dismissed with costs to be paid 
 by the next friend,' and in a clear case even without an inquiry.^ 
 The result of the cases seems to be that the Court exercises a very 
 careful discretion on the one hand, in order to facilitate the proper 
 exercise of the right which is given to all persons to bring an 
 action on behalf of infants, and on the other, to prevent any abuse 
 of that right, and any wanton expense to the prejudice of infants.* 
 An application by the next friend of an infant for an inquiry as 
 to whether a suit which he has himself instituted is for the 
 infant's benefit will not be entertained, because the next friend, 
 in commencing a suit, undertakes on his part that such suit is 
 for the benefit of the infant/ The Court has now ample power 
 to check suits or other proceedings which in its opinion ought not 
 to proceed.* 
 Inquiry -nhere Where more than one action for the same purpose has been 
 than^one^St instituted by different persons, each acting as the infant's next 
 friend, the Court will, before judgment, direct an inquiry as to 
 which suit is most for his benefit ; and when that fact has been 
 ascertained, it will stay proceedings in the other action or actions;' 
 and where the first is to be stayed, and the second prosecuted, 
 the Court will give the first next friend his costs.' The principle 
 upon which the Court acts is to give a preference to that action 
 which is capable from its nature and frame of being most bene- 
 ficially and effectually prosecuted, though in point of form the rehef 
 sought by the other is more extensive.^ But where the merits of 
 both suits are equal, then priority should prevail.' Where more 
 than one suit is being brought, then it is open to either or any of 
 the next friends to make an application as to whether the suit 
 commenced by him should or should not be prosecuted." 
 Inquiry as to An inquiry, if necessary, will be ordered to ascertain whether 
 friend ° ^^^ OT not the person acting as the infant's next friend should continue 
 so to act ; and if the result of the inquiry proves his unfitness, 
 the Court will not hesitate to remove him."'' 
 Eemovai of A next friend will be removed, if he have an interest in the 
 
 next friend. . ^ , i ■ ^ , i.; i ■ .1 -t ii 
 
 suit adverse to the miant," or be an accounting party m the suit ; 
 
 others in whom the Court can better repose coniidenoe. It follows that every such case 
 must depend upon its circumBtanoes ; nor will the Court even order an inquiry unless 
 just cause of suspicion exists." ^ JTox v. Suwerhrop, I Beav. 583. ' 
 
 " Sale V. Sale, 1 Beav. 586 ; Golds v. Xerr, AV. N. Feb. 23, 1884, p. 46. 
 
 * Dan. Ch. Pr. 108, 109, and the cases there cited. 
 
 •* Jones V. Towell, 2 Mer. 141. ^ Ord. lv. r. 10. 
 
 ^ Mortimer v. West, 1 Swanst. 358. '' Starten v- Bartholomew, 6 Beav. 143. 
 
 s Campbell v. Campbell, 2 Myl, & Cr. 25. ' Jbid. 
 
 '" Dan. Ch. Pr. no; and see Taner v. Tvie, 2 Ves. Sen. 466. ^^ Ihid. 
 
 '" Gee V. Gee, 12 W. E. 187. " HopUnson v. Boe, 9 L. J. Ch. 0. S. 7- 
 
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CHAP. VII.] ACTIONS BY AND AGAINST. 813 
 
 or be so closely connected with a defendant having an adverse Ou what 
 interest, that the infant's interest will probably not be protected ;' S'^°"'"^^- 
 or if he will not proceed with the cause f or conducts it im- 
 properly.' But he will not be removed merely on the ground of 
 poverty ;* nor on grounds of suspicion^ with no substantial case 
 against his solvency, character, or conduct;* nor merely because 
 he is connected with the defendants, as by being clerk to their 
 solicitor,' if there is no probability that the infant's interest will 
 be injuriously affected thereby,' even if he be a stranger to the 
 infant.' But where the same solicitor acted for the next friend 
 of the infant plaintiffs, and also for their father, who was a 
 defendant, whose confidential solicitor he had been for years, it 
 was held that he ought not to continue in the character of solicitor 
 of the next friend.' Unless there was some reason to the contrary 
 in the interests of the infant, the father,'" and now the surviving 
 mother," or a testamentary guardian,'^ has the right to apply to 
 remove the next friend and be substituted in his place. 
 
 When the next friend finds it necessary to retire from his when next 
 office, he may apply to the Court to have another person substi- the Court must 
 tuted for him ; and he will, as a rule, be permitted to retire on fltn^a rf**^ °* 
 giving security to the defendant for the costs already incurred." person sub- 
 
 A V ^r-j«-f4. stituted. 
 
 Any person may commence a suit as next friend ot an infant ; 
 but when once he had assumed that character, he will not be 
 removed unless the Court is informed of the circumstances and 
 respectability of the party proposed to be substituted in his 
 place ; and that such person is not interested in the subject of 
 the suit." But where the next friend of an infant plaintiff dies, 
 his nearest paternal relations are entitled to nominate the new 
 next friend ; and in such a case no affidavit of fitness of the 
 new next friend is required.'* This would also be the case where 
 the first next friend became incapacitated,'" or removed." Before 
 appointing a person as a new next friend, the written authority 
 of such person expressing his willingness to act in such capacity, 
 must be filed.'* 
 
 ■' -^toriT. Bond, I Sim. 390 ; Be Burgess, Burgess v. BoUomley, 25 Ch. D. 243. 
 
 ^ Ward T. Ward, 3 Mer. 706. " Russell v. Sharp,e, 1 J. & W. 482. 
 
 •* Squirrel v. Squirrel, 2 P. Wma. 297 n. ^ Smallwood v. Butter, 9 Ha. 24. 
 
 ^ Lhyd V. Davies, 10 Jur. N. S. 1041. 
 
 ' Sandford v. Sandford, 9 Jur. N. S. 398. » Piffard v. Beeby, 14 W. R. 948. 
 
 ' Peyton t. Bond (uhi sup. ) ; Be Burgess, Burgess v. Bottomley [ubi sup. ). 
 "> Woolfy. Pemberton, 6 Ch. D. 19. 
 
 " Guardianship of Infant's Act, 1886 (49 & 50 Vict. u. 27). 
 '2 Hutchinson v. Norwood, 31 Ch. D. 237. 
 
 ^ Meliing v. MeUijig, 4 Madd. 261 ; Davenport v. Davenport, i Sim. & St. loi. 
 " Harrison v. Harrison, 5 Beav. 130. " Talbot v. Talbot, L. K. 17 Eq. 347. 
 
 " As to the capacity or incapacity of a married woman, see Be Duke of Somerset, 
 Thynne v. St. Maur, 34 Ch. D. 465. 
 
 '' Dan. Ch. Pr. 1 12, which see for the proper proceedings to be taken on the death, 
 removal, or incapacity of the next friend. '" Ord. xvi. r. 20, E. S. C. 1883. 
 
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814 
 
 INFANTS. 
 
 [PAET IV. 
 
 Infant attain- 
 ing majority 
 during pen- 
 dency of suit. 
 
 Costs. 
 
 Next friend 
 liable. 
 
 Costs ot next 
 friend primd 
 facie recover- 
 able against 
 infant. 
 
 Where an infant sole plaintiff attains twenty-one, he may then 
 elect whether to go on with or repudiate the suit that has been 
 begun in his name. If he elect to continue the suit, it will be 
 carried on in his name, and he becomes liable for the costs from 
 the beginning, as though the suit had been begun by him as an 
 adult.^ If he repudiate it, he may obtain an order on motion or 
 petition of course, on the payment of costs by himself, and the 
 repudiation dates back from the beginning of the suit ;^ but he 
 cannot make the next friend pay the costs unless the suit is 
 proved to be an improper one.' 
 
 If the infant is a co-plaintiff, and on attaining twenty-one 
 wishes to repudiate the suit, he should move on notice not to 
 dismiss the suit, but to have his name struck out as plaintiff;* 
 but if the nest friend requires it, the infant will be added as a 
 defendant/ 
 
 When the infant comes of age he cannot appear by a fresh 
 solicitor, unless he has obtained an order to change solicitors.* 
 
 If an action on behalf of an infant is dismissed, the defendant 
 is entitled to his costs, just as though the suit .had been brought 
 against him by an adult, notwithstanding it may have been 
 sanctioned by the Court.' As against the defendant the next 
 friend is liable to pay the costs of an unsuccessful suit or appli- 
 cation.^ Costs as between the infant plaintiff and the defendant 
 are generally given much upon the same principle as in suits by 
 adult parties." 
 
 Costs as between the infant and his next friend are entirely in 
 the discretion of the Court.'" Frimd facie the next friend is 
 entitled to recover costs against the infant," if the suit be a 
 proper one, or for such part of it as is proper,'^ and this is so even 
 though the next friend have in -fact taken a mistaken view," so 
 that the suit is dismissed." But if the suit is unnecessary or 
 improper, and the next friend might with reasonable cafe have 
 known it to be so, he must pay the costs personally," and the 
 same rule applies to any improper application in a suit.'" The 
 next friend is entitled to his costs as between solicitor and client 
 where the infant's fund is one in possession ; but where it is in 
 
 ' ^ See JBligh v. Tredgett, 21 L. J. Ch. 204. 
 
 ^ Dwnn V. Dunn, 7 De G. M. & G. 25. ^ Anon. 4 Madd. 461. 
 
 * Acres v. Little, 7 Sim. 138 ; CooJc v. jFri/er, 4 Beav. 13. 
 
 ^ Bicknell v. Bichiell, 8 L. T. 377. '^ See Swift v. Grazehrook, 13 Sim. 185. 
 
 ' FranTc v. Mainwaring, 4 Beav. 37. ^ Buckley v. Puckeridge, i Dick. 395. 
 
 ' Maoph. Inf. 393. i" Clayton v. Clarice, 3 De G. F. & J. 682. 
 
 " Clayton v. Clarke {uhi sup.) \ Pritchard v. Roberts, L. E. 17 Eq. 222. 
 '^ Thompson v. Sheppard, 2 Cox, Eq. Cas. 161. 
 ^' Whittaker v. Marlar, 1 Cox, Eq. Cas. 285. 
 
 " Tanerv. Ivie, 2 Ves. Sen. 466. ^^ Pearce v. Pearce, 9 Ves. 548. 
 
 ^' Simp. Inf. 483 ; Buckley v. Puckeridge {ubi sup.). 
 
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CHAP. VII.] ACTIONS BY AND AGAINST. 815 
 
 reversion only, then only as between party and party ; and lie 
 must wait for his full costs until the fund or part of it comes 
 into possession.^ 
 
 Where the plaintiff in an action for administration refused to infant plain- 
 add infants in the judgment that had been pronounced before -jidgment"" 
 their birth, the defendants applied under Ord. xvu. r. 4 to add 
 the infants as parties, and obtained the order and the conduct of 
 the case though they were themselves accounting parties.^ 
 
 Actions against Infants. 
 
 An infant cannot in in proprid persond appear to defend a suit Actions against 
 brought against him any more than he can sue by himself; but jnfant^ije- 
 as he was capable of being made a defendant in an action, a fendant must 
 proper person was always appointed to defend on his behalf ; and guardian ad 
 this person was called his guardian ad litem. '''^' 
 
 (i) Actions at Law.- — ^The mode of appointing a guardian arf Actions at law. 
 lUmn at common law^ and the general method of conducting an 
 action, differed considerably from the Chancery practice. But it 
 is now no longer necessary to notice this difference, because by 
 the Judicature Act, 1873,' infants may now defend by^ their 
 guardians appointed for that purpose in the manner formerly 
 practised in the Court of Chancery. The effect of this rule is 
 to constitute the Chancery practice the sole practice in the 
 matter. 
 
 (2) In Equity. — An infant may be sued just as much as an in equity. 
 adult, but he is not permitted to conduct the suit in person. 
 Formerly, where an infant was a defendant, an appearance was 
 entered in his name, and then it became necessary to apply to 
 the Court, on motion or petition of course, for an order for the 
 appointment of a proper person to conduct the suit on his behalf; 
 and this person was called in equity, as in law, his guardian ad 
 litem. But by the recent rules of the Supreme Court, 1883, the 
 practice has been altered. The appearance is no longer entered 
 in the infant's name, and the order of course has been dispensed 
 with. It is now provided that " an infant shall not enter an Appearance to 
 appearance except by his guardian ad litem. No order for the guardian ad 
 appointment of such guardian shall be necessary, but the solicitor ^'*«'"- 
 applying to enter such appearance shall make and file an 
 affidavit in the Form No. 8 in Appendix A., Part II., with such 
 variations as circumstances may require."'' And " every infant 
 
 1 Damant v. Hennell, 33 Ch. D. 224. = Wicls v. Wichs, W. N. 1887, 15. 
 
 " 36 & 37 Vict. 0. 66; Ord. xvil r. 16, K. S. C. 1883. 
 ■" Ord. XVI. i. 18. 
 
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816 INFANTS. [part iv. 
 
 served with a petition or notice of motion, or summons in a 
 matter, shall appear on the hearing thereof by a guardian ad 
 litem in all cases in which the appointment of a special guardian 
 is not provided for. No order for the appointment of such guar- 
 dian shall be necessary, but the solicitor by whom he appears 
 shall previously make and file an affidavit as in the last rule 
 mentioned."^ 
 Who may and The guardian ad litem ought to be a fit and proper person, who 
 a^p^inted.'^ is not a mere volunteer ; but a co-defendant may be appointed.^ 
 But the plaintiff, or a married woman,' or a person out of the 
 jurisdiction cannot be appointed.^ 
 Service on in- When an infant is a defendant to the action, service on his 
 
 fant defendant. ,, ,^ -,. . ,, ,, ,i -ii i 
 
 father or guardian, or it none, then upon the person with whom 
 the infant resides or under whose care he is, shall, unless the 
 Court or judge otherwise orders, be deemed good service on the 
 infant ; provided that the Court or judge may order that service 
 made or to be made on the infant shall be deemed good service.* 
 Thus, where an infant resided with his mother and stepfather, and 
 the notice was served at their house ; ' and where the plaintiff 
 was unable to discover where the infant's parents lived, and he 
 served the notice at the head of the college of which the infant 
 was an undergraduate,' in each case the service was deemed 
 sufficient. Where an infant is a member of a partnership, a 
 judgment for goods supplied to the firm can only be recovered 
 against the defendants " other than the infant partner ; " and a 
 receiving order against such a firm can only be made against the 
 firm " other than the infant partner." ^ 
 Default of Where the infant fails to put in an appearance, the practice is 
 
 appearance by,.„ ,_. .it.i.i ii 
 
 infant. difierent. it is now provided that where no appearance has been 
 
 entered to a writ of summons for a defendant who is an infant, 
 Application to the plaintiff shall, before further proceeding with the action 
 a guardian. against the defendant, apply to the Court or a judge for an order 
 that some proper person be assigned guardian of such defendant, 
 by whom he may appear and defend the action. But no such 
 order shall be made unless it appears on the hearing of such 
 application that the writ of summons was duly served, and that 
 notice of such application was, after the expiration of the time 
 allowed for appearance, and at least six clear days before the day 
 in such notice named for hearing the application, served upon 
 
 ^ Ord. XVI. r. 19. Where he is interested as a bare trustee only, he must he served 
 and a guardian ad litem appointed. Re Adams, 57 L. T. 337. 
 ^ See He Dawson, Johnston v. Hill, 41 Ch. D. 415. 
 ^ See Be Duke of Somerset, Thynne v. 8t. Maur, 34 Ch. D. 465. 
 ^ Dan. Ch. Pr. 173. ^ Old. ix. 1. 4. 
 
 8 Hitch V. )VelU, 8 Beav. 576. '' Christie v. Cameron, 2 Jur. N. S. 635. 
 * Lovcll V. Beauchamp, [1894] App. Gas. 607. 
 
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CHAP, vii.] ACTIONS BY AND AGAINST. 817 
 
 or left at the dwelling-house of the person with whom or under 
 whose care such defendant was at the time of serving such writ 
 of summons ; or, where the infant does not reside with or under 
 the care of his father or guardian, served upon or left at the 
 dwelling-house of the father or guardian, if any, of such infant, 
 unless the Court or judge at the time of hearing such application 
 shall dispense with such last-mentioned service.' Where a 
 plaintifE signs judgment for default of appearance the Court has 
 entire discretion whether such judgment shall be set aside. ^ In 
 cases where the application for the appointment of a guardian is 
 inade at the instance of the plaintiff, the official solicitor to the 
 Suitors' Fund is usually appointed.^ The Court provides for the 
 costs of the latter by making the plaintiff pay them, who in his 
 turn may add them to his own." 
 
 Where an infant defendant is out of the jurisdiction, the notice Where infant 
 of an application for the appointment of a guardian ad litem must outrfXe '^ 
 be served on the parent or guardian of such iufant ; ^ and where i""sdictioii. 
 the foreign guardian refuses to appear, the Court may nominate 
 the official solicitor as the infant defendant's guardian ad litem.^ 
 But where the infant is abroad, and has no substantial interest in 
 the suit, the Court may dispense with the notice.' 
 
 On the death of a guardian ad litem a new one will be Appointment 
 appointed.* The guardian will be removed if he does not do his dian^a^l"™. 
 duty, or for other sufficient grounds,' or if he have been im- 
 properly appointed."" The Probate Court has like power to 
 inquire whether a guardian ad litem is a fit and proper person, 
 and to discharge the order of his appointment if he be found an 
 unfit person, and whether the action should or should not be 
 continued." 
 
 Allegations of fact in pleadings which are not specifically or Allegations of 
 impliedly denied do not bind infants as they do adults.'^ But by the infant's 
 where the plaintiff moved for judgment in a case where the ^ot^ttof him 
 guardian ad litem put in no defence, and did not disapprove of as aiJ^issions. 
 the minutes of judgment, the plaintiff was allowed to prove his 
 claim by affidavits, without having recourse to trial in order to 
 prove his case ; but such a course was to the advantage of the 
 infant." 
 
 ^ Ord. nil. 1. 1. - Furnival v. Brooke, 49 L. T. 134. 
 
 ' Thomas v. Thomag, 7 Beav. 47. ^ Harris v. Hamlyn, 3 JDe G. & S. 470. 
 
 ' O'Brien v. Maitland, 10 W. E. 275. 
 
 ^ White V. Duvernay, [1891] I P. 290 ; Ord. xiii. r. i. 
 
 '' Lambert v. Turner, 10 W. K. 335. * Needham t. Smith, 6 Beav. 130. 
 
 ' Bussell V. Sharpe, i J. & W. 482. 
 '" Sandys v. Cooper, 4 L. J. Ch. 162. 
 
 " Percival v. Cross and Others, 7 P. D. 234. '^ Ord. xix. r. 13. 
 
 ^■' Me Fitzwater, Fitzwater v. Waterhouse, 52 L. J. Ch. 83. See Gardner v. 
 Taping, 33 W. E. 473. 
 
 3F 
 
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818 INFANTS. [PAET IV, 
 
 Infant not As an infant cannot bind himself by admissions, so neither at law 
 
 discover ™ ^^^ ^^ equity can discovery be sought against him either by way 
 of interrogatories,' or discovery of documents ; ^ and the Judicature 
 Act, 1873, has not made any alteration in this respect.' It is a 
 matter of some doubt whether interrogatories can be served on a 
 minor who is a suitor in the Divorce Court, but they cannot be 
 served for the purpose of obtaining an admission of adultery from 
 him or her.'' 
 Consent of The Consent of a next friend or guardian ad litem as to the 
 
 &c^, art™pro- mode of conducting a cause, shall bind the infant if given with 
 •nf°?'f""^th ^^^ consent of the Court or a judge.^ But a guardian ad litem 
 consent of is not such a party to the action as to render him compellable to 
 Coui-t. ■ ^ J ■ ,^ 
 
 answer interrogatories. 
 
 How far an infant, whether plaintifi or defendant, is bound by 
 
 a judgment or decree, has been discussed above.' 
 
 Infant bom The practice as to bringing in an infant born after judgment 
 
 in an action in an action in which he becomes an interested or necessary party 
 
 becomes an in- °^ ^^^ birth has not been uniform, especially in cases where pro- 
 
 terested party, ceedings had been taken between the birth and the obtaining of 
 
 an order under 15 & 16 Vict. c. 86, s. 52, now Order xvii. 
 
 rule 4, of the rules of the Supreme Court, 1883,* in the nature 
 
 of a supplemental action, and it has been held that where such 
 
 proceedings had taken place, such order was insufficient, and that 
 
 Supplemental a Supplemental action was necessary.^ But the weight of 
 
 authority is to the effect that such supplemental action is not 
 
 now under all circumstances necessary. The late Sir G. Jessel 
 
 drew up an order which he directed in such a case should be 
 
 obtained. The order was to the following effect : that " an 
 
 inquiry be made whether any proceedings affecting the interest 
 
 of the infant in this action have been had therein since his birth, 
 
 and if so, whether it will be fit and proper, and for the benefit 
 
 of the infant, that he should be bound by the said decree (or 
 
 judgment, or order) and the proceedings thereunder; and if it 
 
 shall be so certified, it is ordered that the infant be bound 
 
 or V. Collins, 24 Q. B. D. 361. 
 Curtis T. Mundy, [1892] 2 Q. B. 178. ^ Mayor v. Collins [uUsup.). 
 
 ^ Bedfern v. Redfern, [1891] P. 139. = Ord. xvi. r. 21. 
 
 ^ Ingram v. Little, 11 Q. B. D. 251. ^ Ante, chap. ii. p. 728. 
 
 * " Where ... by reason of any person interested coming into existence after the 
 coiamencement of the cause or matter, it becomes necessary or desirable that any 
 person not already a party should be made a party, an order that the proceedings shall 
 be carried on between the continuing parties and such new party . . maybe obtained 
 ex parte on application to the Court or a judge, upon an allegation of ... . such 
 persons interested having come into existence." This was Order iv. r. 4, of the 
 Judicature Act Eules, 1875. See Scruhy v. Payne, W. N. 1876, p. 227 ; Williams v. 
 Williams, in chambers, May 16, 1876. 
 
 ' Haldane v. Ecltford, W. N. 1879, p. 80. This case can be considered no longer 
 law. 
 
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CHAP. VII.] ACTIONS BY AND AGAINST. 819 
 
 accordingly, as from the date of the said decree, &c.; and in 
 that case, or in case it shall appear that no proceedings affecting 
 the interest of the infant in this action have been had since his 
 birth, it is ordered that the accounts and inquiries directed by 
 the said decree, &c., be carried on and prosecuted by the plaintiff 
 against the infant in like manner as if the infant had been 
 originally a defendant to this action." ^ But this order is con- 
 ditional upon the appearance of the infant by his guardian, 
 and if the latter refuses to appear, the order would be in- 
 operative." This difficulty has been obviated by prefacing the Direction that 
 above order with a direction that the proceedings in the action theTotfon^be'" 
 be carried on between the plaintiffs and defendants and the "^"'ie'i on. 
 iafant. By means of such additional direction regular appear- 
 ance can be entered. The first part of the order will make the 
 infant a defendant in the action, and then regular service will 
 be effected, and the result will be that he has been made a party 
 to the action. The practice will therefore be assimilated to a 
 case where the new party added is sui juris ; and although a 
 party sui juris can waive any objection, but an infant cannot, 
 yet the Court can waive the objection on behalf of the infant, if 
 it be satisfied that by so acting it is acting for the benefit of the 
 infant. The practice, therefore, is for the infant first to be made infant first 
 a regular party, and then for the inquiry to proceed. If the ^quiry'iTsmt 
 inquiry be answered in the affirmative, the infant forthwith ^^ beneficial. 
 becomes bound, but if the inquiry be answered in the negative, 
 it will be open for the plaintiff to proceed by supplemental action.^ 
 
 The guardian ad litem and the infant defendant may be ordered Costs. 
 to pay the costs of a successful action against them.^ 
 
 A person after attaining majority may have an injunction injunction. 
 granted restraining him from committing a breach of an agree- 
 ment entered into by him during infancy.^ 
 
 When a defendant sets up the plea of infancy in an action the Proof of in- 
 onus of proof lies on him ; * and strict evidence of it is required, actfon''^ ^^ 
 The best evidence of a person having been born on a particular 
 day is that of some one who was present at his birth, or in the 
 house on that date,^ and can identify him. Hearsay evidence of 
 it is insufficient ; thus, a letter of a deceased parent stating the 
 exact age of the infant is inadmissible ; ' so, too, an affidavit 
 
 1 This was followed by Chitty, J., in Peter v. Thomas-Peter, 26 Cli. D. 181. See 
 Set. Deo I02. ^ Peter v. Thomas-Peter {uhi sup,). 
 
 = Capps V. Capps, L. R. 4 Ch. App. i ; Peter v. Thomas-Peter {ubi sup.) ; Set. 
 Dec. 106. * Vivian v. Kennelly, 63 L. T. 778. 
 
 ^ See Evans v. Ware, [1892] 3 Uh. 502. 
 
 * Jeune v. Ward, 2 Stark. 328 ; Hartley v. Wharton, 4 Jur. 576. 
 ' Burghart v. Angerstein, 6 C. & P. 6go, 696. 
 
 * See Figg v. Wedderhurne, 11 L. J. Q. B. 45. 
 
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820 • INFANTS. [part iv. 
 
 stating tlie date of the defendant's birth made by his dead father 
 in a action to which the plaintiff was not a party has been held 
 inadmissible as evidence of the defendant's age.' An entry in 
 the register of baptisms of the date of birth is not evidence of the 
 date of birth, but only of the baptism ; ^ and an entry in the 
 register of births under the Registration Act, 1836,^ is only 
 evidence of the fact of registration on a particular day, and that 
 the person was born before that day, but not of the exact date of 
 birth.* 
 
 1 Haines v. Guthrie, 13 Q. B. D. 818. 
 
 ^ Biirghart v. Angerstein 6 C. & P. 6go ; i?e Turner, Glenister v. Hardina. 
 29 Ch. D. 985. 3 6 & 7 Wm. IV. c. 86, s. 38. 
 
 ■* Re Wintle, L. R. 9 Eq. 373. 
 
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PART V. 
 
 MASTER AND SERVANT. 
 
 CHAPTER I. 
 
 DOMESTIC AND MENIAL SERVANTS. 
 
 PAGE 
 
 Definition or "Mastee"and "Servant" .... 821 
 
 Relation op Mastbe and Sbevant a Domestic Relation 822 
 
 Who are Menial ok Domestic Servants .... 824 
 
 Who aee not 824 
 
 Legacies to Servants : Servant must have given up his 
 
 Time exclusively to Sbevicb of Testator . . 825 
 
 Servant at Weekly Wages not entitled . . . 825 
 
 Servant in Testator's, Service at Date op Death . 826 
 
 Blackstone in his Commentaries' says that the relation of Master 
 and Servant "is founded in convenience, whereby a man is directed 
 to call in the assistance of others where his own skill and labour 
 will not be sufficient to answer the cares incumbent upon him." 
 Slavery with its incidents may be dismissed from consideration 
 as being utterly repugnant to modern English social and legal 
 notions. Freemen alone are concerned. 
 
 Without venturing to attempt to define exhaustively (which Definition of 
 would be next to an impossibility), the following is put forward "servant." 
 as a rough definition of the terms " servant " and " master." A 
 " servant " is a person who voluntarily agrees, whether for wages 
 or not, to subject himself at all times during the period of service 
 to the lawful orders and directions of another in respect of certain 
 work to be done. A " master " is the person who is legally entitled 
 to give such orders and have them obeyed." This definition does 
 
 ' I Com. 422. 
 
 2 See Taumshend v. Windham, 2 Vern. 546. Mr. Justice Steplien in his "Digest 
 of the Criminal Law " (p. 220) thus defines a servant : " A servant is a person bound 
 either by an express contract of service or by conduct implying such a contract, to obey 
 the orders and submit to the control of his master in the transaction of the business 
 which it is his duty as such servant to transact." See Meg, v. JVcjtms, L. R. 2 C. C. R. 34. 
 
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822 
 
 MASTER AND SERVANT. 
 
 [PAKT V. 
 
 Relation of 
 master and 
 servant a 
 domestic 
 relation. 
 
 Eolation of 
 master and 
 domestic or 
 menial ser- 
 vants only 
 discussed. 
 
 not embrace a large number of persons who from time to time, 
 and for various purposes, are styled servants; thus, "in actions 
 for seduction, a person who does any trifling act of service is 
 regarded as a servant. Mere casual temporary employment for a 
 particular purpose will not suffice to make a person a servant 
 within the meaning of some statutes. In the case of others this is 
 enough. Servant is used, for example, in one sense in the Carriers' 
 Act (i I Geo. IV. & I Wm. IV. c. 68, s. 8), and in another in the 
 Larceny Act (24 & 25 Vict. c. 96, s. 68)."^ 
 
 Hale 'in his Analysis^ classifies the relationship now under 
 discussion among the "relationships oeconomical," or domestic 
 relations; and Blackstone also styles it an " oeconomical relation." 
 It is a thoroughly domestic -relationship, and in more ancient 
 times the respective positions of wife and of chUd and of servant 
 in regard to the head of the family were much nearer akin to one 
 another than they are at present. The family of the Eastern 
 patriarch or Roman father was constituted of units owning 
 implicit obedience to their head, whose word was a law to them. 
 There is not a relationship between men which exemplifies in a 
 more marked degree the truth of the pregnant remark that the 
 progress of human institutions is from status to contract, than 
 that of master and servant. Of old the servant was in the con- 
 dition of a slave, a bondsman, a captive of war, of one sold into 
 servitude, or reduced into slavery by creditors, or by those whom 
 he had wronged. In that state he remained ; and his children 
 after him were slaves also ; his life and body and freedom were at 
 the disposal of his master, who could deal with him as seemed 
 best in his eyes. In time, and more especially under the soften- 
 ing influences of Christianity, the lot of the slave was bettered. 
 In England all traces of slavery seem to have vanished by the 
 end of the sixteenth century ; and the relation of master and 
 servant flowed from a pure contract of hiring and service ; but 
 it is not until more recent periods that statutes legalizing com- 
 pulsory labour have been repealed. There is another class of 
 servants who more nearly approach the older type and status of 
 slavery, namely, apprentices ; but their bonds are for a limited 
 period of years, and their work is for their own advancenient and 
 good. 
 
 The scope of this portion of the law of Domestic Relations will 
 be confined to domestic and menial servants, and will embrace 
 but a small portion of the law that is ordinarily treated of under 
 the head of Master and Servant. Indeed, strictly speaking, the 
 very term domestic or family relations would exclude all those 
 1 Macd. M. & S. 37. » Page 33. 
 
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CHAP. I.] DOMESTIC AND MENIAL SERVANTS. 823 
 
 persons who could not satisfy its requirements. That wide branch 
 of the law which deals with the relations of those who are popu- 
 larly known as " Employers and Employed " will not be discussed 
 in the succeeding chapters ; nor will there be any need to have 
 recourse to the intricate legislation which in more recent years 
 has appeared on the Statute Book, owing to the great increase of 
 commercial wealth and the development of trade and the general 
 resources of the country. At the same time it will be necessary 
 to illustrate and gather up the principles aifecting the more 
 limited relations of domestic servants and their hirers by the case 
 law which deals primarily with the relations of those who are 
 excluded from present consideration, where such principles are 
 common to both classes. The reason lies in the fact that the 
 everyday circumstances of the non-domestic employed, such as 
 farm labourers, factory operatives, workers in mines, railway 
 servants, and others engaged in risky trades, are more likely to 
 cause litigation ; their relations to their employers are in more 
 pronounced contrast, and there is less status than contract in 
 their mutual dealings, and so provocative of sharper disagreement. 
 Fmrther,, the position in which non-domestic servants stand to 
 each other and the community at large affords more frequent 
 facilities than that of domestic servants for testing the mutual 
 relations of employers and employed, and the responsibility of 
 both towards third persons affected by the acts of the employed. 
 Yet because the principles of law are to a considerable extent 
 common to the different classes of servants, the more numerous 
 illustrations afforded by certain classes of them as set forth in the 
 case law may be used to explain the relations of the other classes 
 which are less frequently litigated in the courts. 
 
 There are, then, three classes of servants : (i) Menial, includ- 
 ing domestic servants ; (2) Apprentices; (3) Workmen employed 
 in non-domestic occupations. The present discussion will be 
 concerned with domestic servants and apprentices. 
 
 There is no hard-and-fast rule as to who are domestic or menial ' Domestic 
 servants ; and each case must depend upon its own particular 
 
 '■ The term " menial " is derived tbrough the French " meisnee," _" menie," from the 
 low Latin word " mansionata," signifying a household. Its meaning was afterwards 
 extended, and it signified under the form "meiny," a following, or retinue. Shakspeare 
 thus uses it ; "TheT summoned up their meiny ; straight took horse ; commanded me 
 to follow, and attend " (King Lear, act ii. sc. 4J. It is also found in Chaucer : 
 " And in her hows she abode with such meyne 
 As to her honour nede was to holde." 
 
 Iroylus and Orysede, Book I. 127. 
 The word " menialty," signifying "common people," is formed from it. Blackstone 
 derives the word from "mcenia," signifying that such servants dwelt within the walls 
 of the domestic establishment of their master, as distinguished from those who lived 
 out of doors and away from the house, but this derivation has no philological basis. 
 The suggested derivation of Mr. Manley Smith from the Greek im^v (a month) is more 
 
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824 MASTER AND SERVANT. [part v. 
 
 circumstances. The word " menial " is of wider import than the 
 word " domestic," and includes it.' Every servant who at all 
 times during the period of his service is under the immediate 
 control, discipline, and management of his master, and is also 
 liable to attend his person, falls within the category of menial ; 
 whereas domestic servants are those who form part only of the 
 family household of their employer. 
 Whoave Menial servants, as including domestic, will form the subject- 
 
 dome*tio' matter of the succeeding pages. All indoor servants whose duty 
 eervants. j^ jg ^q attend the master, and perform household acts, and who 
 
 are under the immediate and exclusive control of the master, are 
 clearly menial and domestic servants ; but others whose work and 
 duties could not be so described, have been held to be menial 
 servants; thus, a head gardener, at ;£^ioo a year, residing in a 
 detached house belonging to his master, with the privilege of 
 taking apprentices (of which he had availed himself), and having 
 five under-gardeners under him, has been held a menial servant.^ 
 So, a huntsman, engaged on the following terms : " ;^i OO a year ; 
 draft hounds ; house ; coals, and bones ; leave to keep a pig ; two 
 coats ; two waistcoats ; two pairs of breeches ; two pairs of boots ; 
 one cap ; one whip ; and one pair of spurs,'' was held to be a 
 servant ; ^ so also, one who entered into service under a written 
 agreement that he was to have six shillings a week, three bolls of 
 wheat, to set potatoes for his family's use, to have a cow kept, 
 house and firing, and to keep a pig, no poultry to be kept, his 
 wife to keep the museum clean, he himself to keep the gardens 
 and pleasure-grounds in clean and good order, to assist in the 
 stables, and, when required, at hay and corn harvest, to make 
 himself generally useful;' and one who was employed as a potman 
 Who are not. j^ a public-house.* On the contrary, a farm bailiff has been held 
 not to be a menial servant ; '" also a governess,' from the position 
 she holds in the family of her employer and society generally ; 
 
 quaint than accurate ; for the term " menial " was in vogue long before it became the 
 custom to pay domestic servants by the month, which is the growth of quite modern 
 days. Their hiring is still legally by the year. It is not likely that a Greek word 
 would be employed to express such a homely every-day relation as that of master and 
 hired servant. The term "menial" bears at the present time a narrow signification 
 indicative almost of degradation ; but that does not prevent its being a convenient 
 word to designate those servants who are in the exclusive service of their master. 
 
 ' Schouler, Dom. Eel. s. 454, following the inaccurate definition given by Black- 
 stone, would make menial of narrower import than domestic; but it is submitted that 
 the latter is included in the former, for by domestic servants it is difficult to designate 
 those not engaged in the domestic establishment ; again, the common expression 
 "menial acts" can be applied to serjioes rendered equally by outdoor as well as 
 indoor servants. 
 
 ^ Nowlan v, Ahhtt, 2 C. M. & E. 54. = js;icoll v. Graves, 33 L. J. C, P. 259. 
 
 ■* Johnson v. Blenlcensopp, 5 Jur. 870. 
 
 ' Pearce v. Lansdowne, 62 L. J. Q. B. 441. 
 
 '' Louth V. Drummond, cited Smith, M. & S. 95. 
 
 ' Todd V. Kerriclc, 22 L. J. Ex. i. 
 
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CHAP. I.] DOMESTIC AND MENIAL SERVANTS. 825 
 
 and a tutor, on like reasoning, would be held not to be a domestic 
 or menial servant. It has also been held that the housekeeper of 
 a large hotel is not a menial servant, and cannot be dismissed on 
 a month's notice in the absence of an express agreement ; ' also 
 that a steward is not a menial servant.^ 
 
 The question as to who are or are not domestic or menial Legacies to 
 servants has frequently been discussed in cases dealing with ^®'^^*°*^- 
 legacies to " servants " ; and it is possible to gather from these 
 cases certain principles which may serve as guides. The servant 
 to whom, as such, a legacy is left must have given up his time Servant must 
 exclusively to the service of the testator,^ and must not be hfjtime™"-'^'^ 
 subject to the orders of any other person than the testator ; " oinsi^eiy to 
 so, a coachman supplied by a job-master, who paid him weekly testator. 
 wages, not living in the testator's house, but paid by him a 
 weekly sum as board wages, and returned as his coachman, was 
 held not to be a servant of the testator ; ^ but where a coach- 
 man had been hired by and lived many years with a testatrix, 
 though his wages were paid by a job-master, he was held to be a 
 servant of the testatrix.^ The above are instances of those 
 who are not domestic servants ; but if the legacy is bequeathed 
 to "domestic servants," or " servants in my domestic establish- 
 ment," or " household servants," a distinction must be drawn 
 between indoor and outdoor servants to the exclusion of the 
 latter.' Another test is the period for which the servant has been 
 hired; if the hiring has been a yearly one, and a legacy of a 
 year's wages is left to the servant, he would be entitled to it ; 
 and it is only servants that are usually hired by the year that are 
 entitled to such legacies.* If the servant has been hired at Servant at 
 weekly wages he is not entitled to the legacy." But in the case not entitled. 
 ■of Thrupp V. Gollett^" the direct contrary was held, seemingly on 
 the ground that it was a very unusual thing to pay the wages of 
 the servants in question (head and under-gardeners) by the week. 
 A bequest of a year's wages to each of the servants of the testator 
 living with him at his decease, who should then have lived three 
 years in his service, does not exclude servants of the testator 
 iliving in a difierent house from that in which the testator 
 Uved." 
 
 ' Lawler v. Linden, lo Ir. C, L. Eep. i88. 
 
 ^ See Forgan v. Burke, 12 Ir. C. L. Rep. 495. 
 
 2 Tonmshend v. Windham, 2 Vern. 546. * Smith, M. & S. 565. 
 
 ■' Chilcot V. Bromley, 12 Ves. 114. 
 
 ^ Howard v. Wilson, 4 Hag. Eccl. Rep. 107. 
 
 ' Ogle V. Morgan, i De G. M. & G. 359 ; Ee Drax, Savile v. Yeatman, 57 L. T. 
 
 ^75. ... „ 
 
 ' Booth V. Bean, 1 Myl. & K. 560. See^osi, chap. 111. p. 831. 
 " BhchweU v. Pennant, 16 Jur. 420. 
 '" 26 Beav. 147. " BlaekweU v. Pennant (ubi sup.). 
 
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826 MASTEE AND SERVANT. [part v. 
 
 Servant iu Whether the servants must be in the testator's service at 
 
 vice at date of ^^^ ^^^ of his death,' Or it is sufficient that they were in 
 death. jjjg service at the date of the will/ depends upon the wording 
 
 of the bequest ; thus, if a testator bequeaths an annuity to- 
 his servant, provided he is in his service at the time of his 
 decease, and the servant is wrongfully discharged,^ or volun- 
 tarily leaves the service of the testator,'' he loses the benefit of 
 the legacy. 
 
 ^ Jones V. Henley, 2 Ch. Eep. 361. 
 
 ' Parher v. Marchant, 6 Jur. 292 ; on appeal, 7 Jur. 547. 
 
 ' Darlow v. Edwards, 32 L. J. Ex. 51. 
 
 * Be Serres' Estate, Venus v. Marriott, 31 L. J. Ch. 519. 
 
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CHAPTER II. 
 
 PARTIES TO THE CONTRACT. 
 
 PAGE 
 
 Peesons of Full Age, and Independent .... S27 
 
 Pebsons not Independent : Makkibd Women • Hieeks 827 
 
 Mabeied Women : Hii^bd 828 
 
 Capacity of Maeried Women undee Maeeibd Women's 
 
 Peopeety act, 1882 828 
 
 Payment of Wages to, a Good Dischaegb . . . 829 
 Maeeiage does not put an end to Woman's Conteact 
 
 op Seevicb S29 
 
 Infants: Hieees 830 
 
 HiEBD 830 
 
 Lunatics 830 
 
 As a general rule, every person of the full age of twenty-one All persons of 
 years, and not under any legal disability, is capable of becoming independent 
 either a master or servant. But in order that a contract of hiring ?™^® parties 
 
 o to the con- 
 
 and service may be legally binding, it is necessary that, at the 'raot. 
 time such a contract is entered into, the party about to be hired 
 should be free from any other engagement incompatible with that 
 into which he is about to enter ; in other words, he must be sui 
 jurist The demands, however, of social life have necessitated a 
 relaxation of the above rule, and it will be seen upon inquiry 
 that valid contracts may be made by those who are not sui juris, 
 both as to hirers and the hired. Thus, married women, infants 
 and lunatics may be parties to this contract. 
 
 A contract for the hire of a servant by a married woman, as Persons not 
 mistress of a household, is a good and binding one, and her ^^^.^.j^^j 
 husband will in most cases be bound by it to pay the servant's women, 
 wages ; for the authority of the wife during cohabitation is that 
 of her husband's agent.^ The presumption that has been raised 
 against a married woman by the Married Women's Property Acts, 
 will not be likely to have a general application to such contracts 
 as these, in which the authority of the husband and the agency 
 of the wife are easily inferred from her position in the domestic 
 
 1 Smith, M. & S. I. 
 
 2 See ante, Part I. Husband and Wife, chap. xiv. pp. 301 et seq. 
 
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828 MASTER AND SERVANT. [pabt v. 
 
 establishment. This authority need not be given to the wife by 
 writing.' It may be given expressly, or may be implied from 
 circumstances. A servant suitable to their degree in life, engaged 
 and hired by the wife, can recover wages from the husband.^ 
 Where the husband and wife do not cohabit, the liability or non- 
 liability of the husband depends upon the circumstances of the 
 case, such as whether the wife had or had not a sufficient separate 
 maintenance from any source.^ If the wife has been expressly 
 forbidden to hire a servant, and the servant is aware of it, the 
 husband is not liable for the wages.* Where the wife has separate 
 property, or her act of hiring has taken place apart from her 
 husband, and hp,s been disowned by him, the Court would 
 enforce the contract against her,* and under the present state 
 of the law her liability in this respect is greater than it was 
 formerly. 
 Married A married ^yoman when. living with her husband was at com- 
 
 hireTservants. i^on law, as has been already seen," incapable of entering into 
 a valid contract, and this incapacity included contracts of service ; 
 thus, under the Master and Servant Act, 1867," a married 
 woman was held incapable of entering into a valid contract of 
 service under that Act independently of her husband.* A wife 
 could effect a valid contract of service where her husband was 
 civiliter mortuus, or she had been judicially separated,' or had 
 obtained an order protecting her earnings from the claims of her 
 husband.'" Under the Married Women's Property Act, 1870," 
 the wages earned by her separately from her husband, and the 
 invested savings the result of such wages, were hers absolutely, 
 and she possessed the like remedies, civil and criminal, for the 
 protection and security of her wages and earnings as though she 
 were unmarried. 
 Capacity of The question now arises whether a married woman has under 
 
 women under receut legislation the capacity to enter into a valid contract of 
 ^8^' ^' '^'^^' service independently of her husband with whom she is cohabiting. 
 The Married Women's Property Act, 1 8 70, has been held not to 
 have conferred upon her any further contractual power than she 
 at that time possessed in equity.'^ Though the Married Women's 
 Property Act, 1882,'^ is much wider in its effects than the earlier 
 
 ' White T. Cuyler, 1 Esp. 200. ^ Jewsbwy v. Newhold, 26 L. J. Ex. 247. 
 
 " Clifford V. Latoii, M. & M. loi ; Seeve v. Marquis Conyngliam, 2 C. & K. 444. 
 
 *' Etherington v. Parrott, i Salt. 118. 
 
 ^ See Hope v. Carnegie, L. R. 7 Eq. 254. 
 
 '' See ante, Part I. Husband and Wife, chap. x. p. xiv. pp. 278 et seq. 
 
 ' 30 & 31 Vict. c. 141. 8 Tomldnson v. West, 32 L. T. 462. 
 
 20 & 21 Vict. 0. 85, 8. 25 ; and 58 & 59 Vict. c. 39. s. 4, repealing 41 Vict. c. 19, 
 s. 4. '° 20 & 21 Vict. c. 85, 8. 21. See Part I. Husband and Wife, chap. xiv. 
 
 " 33 ^ 34 Vict. c. 63, ss. i, 11. 
 12 Howard y. The Bank of England, Jj. E. i9Eq. 295. ^^ 4S&46 Vict. c. 75. 
 
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s earn- 
 iDffs her own. 
 
 CHAP. II.] PARTIES TO THE CONTRACT. 829 
 
 Act of 1870, which it repeals, and does confer upon the married 
 woman enlarged contractual powers, yet, it is submitted, these are 
 confined to matters involving her proprietorial relations to her 
 separate estate, and does not confer upon her the power of entering 
 into a binding contract of service without the assent of her hus- 
 band ; and for this reason, that she might put an end to the 
 matrimonial cohabitation without his consent and for no fault of 
 his — a power which it never could have been intended by the 
 Legislature to confer upon her. If, then, the wife leaves the 
 husband and goes into service against his wish, and the latter 
 gives the employer notice of his dissent, who notwithstanding 
 keeps her in his service, the husband will be able to maintain an 
 action for harbouring his wife, and depriving him of the comfort 
 of her society. Of course with his consent a wife may hire out 
 her services and labour as she pleases, and whatever she receives a wife' 
 ia return by way of remuneration is and remains her separate 
 property. No doubt the husband's assent is very readily inferred ; 
 in fact, non-dissent on his part, where he could express it, would 
 be sufficient. Where he has deserted her, or she has been 
 judicially separated from him, his assent is not required, for she 
 is in all respects a single woman. If during his absence she 
 entered into a contract of service, it would be valid until he 
 elected to put an end to it on his return ; and all wages earned 
 by her in respect of it would remain her separate property. 
 Since the altered state of the law, payment to a married woman Payment of 
 of her wages or earnings is good, and her receipt for them is a mamed" 
 good discharge to the hirer ; whereas under the old law, when her J.°'^°- * ^°°^ 
 earnings became her husband's property, payment to her did not 
 discharge the hirer.' Such payment to the wife would be good, 
 even if the husband dissented from her contract of service ; for, 
 as he now has no interest of any sort (inter vivos) in her property, 
 including wages and earnings, consequently, though he might 
 refuse to ratify the contract, he could not make any valid demand 
 under it ; and if he sued the employer for her wages, it would be 
 a good defence to allege that he took no interest under the con- 
 tract, and that by force of the statute the wife alone could give a 
 valid receipt for them. 
 
 Marriage does not put an end to the woman's contract of Marriage does 
 service ; ^ but, as before stated, it must be allowed that the husband to woman's 
 should have power and authority to decide whether she should Hf^^g^' °' 
 continue in service, or in what particular kind of service, and to 
 assert his right of matrimonial cohabitation, if she leaves him for 
 the purpose of earning an independent living. 
 
 ' Offley V. Clay, 2 M. & G. 172. ^ I^f.v v. Tardebigy, Burr. Sett. Cas. 322. 
 
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830 MASTER AND SERVANT. [part v. 
 
 Hirers. Infants. — An infant in many cases, it has been seen, cannot 
 
 make contracts binding on himself; but where such con- 
 tracts are made by him to supply himself with what are found to 
 be necessaries, then they are binding on him. Therefore, by analogy, 
 a contract by an infant for the hire of a servant or servants suit- 
 able to his degree in life would be binding on him, and such 
 servant could recover the stipulated wages.' 
 
 Hired. Not only is a contract of apprenticeship in most instances 
 
 deemed to be for an infant's benefit and so binding on him,^ but 
 a contract of hiring and service may be for his benefit and 
 generally binding on him, and he would have a right of action 
 under it for wages earned ; ° but the contract must be one clearly 
 for the infant's benefit.'' An infant may sue in the County 
 Court for money due to him as wages, under £^0, as though he 
 were of full age.° 
 
 The capacity of infants to make such contracts has already 
 been discussed under the head of " Infants." ° 
 
 Lunatics. Litnatics. — " Strictly speaking, a person of unsound mind 
 
 is incompetent to contract, yet there can be no doubt that a 
 lunatic would be held liable to pay for any services which had 
 been rendered to him, provided they were such as might reason- 
 ably be considered necessary for a person in his station in life. 
 In such a case the law could imply a promise to pay for them ; 
 and modern cases show that where a party entering into a contract 
 is a lunatic, but the state of his mind is unknown to the other 
 party, who has taken no advantage of the lunatic, he would not 
 be allowed to set up his lunacy as a defence to the action on the 
 contract, especially in a case where the contract was not merely 
 executory, but executed in the whole or in part, and the parties 
 could not be restored altogether to their original position."^ The 
 services of a servant to attend to his wants would be deemed a 
 necessary in most cases, and it is only fair that such should be 
 paid for if supplied to him in good faith.* 
 
 1 See Chappie v. Cooper, 13 M. & W. 252. 
 
 ^ Cooper V. Simmons, 31 L. J. M. C. 138. '^ Beg. v. ChiUesford, 4 B. & C. 94. 
 * Beg V. Lord, 12 Q. B. 757 ; Leslie v. Fitzpatrick, 3 Q. B. D. 229 ; Corn v. 
 Matthews, [1893] i Q. B. 310 ; but see Meakin v. Morris, 12 Q. B. D. 352. 
 
 ^ 51 & 52 Vict. 0. 43, B. 96. ^ See ante. Part IV. chap. ii. pp. 752 et seq. 
 
 ' Sm. M. & S. 15 ; Molion v. Camroux, 18 L. J. Ex. 356. 
 8 Baxter v. Earl of Portsmouth, 5 B. & C. 170. 
 
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CHAPTER III. 
 
 THE CONTRACT OF HIEING AND SEEVIOE. 
 
 PAGE 
 
 The Consideration 831 
 
 Duration op the Contract : Yearly Hiring ... 831 
 Termination by Cxjstom op Domestic Hiking by Month's 
 
 Notice, or Month's Wages in Lieu op Notice . . 831 
 Period fob Payment op Wages not necessarily a Test 
 
 op the Duration op the Contract .... 832 
 
 When Hiring Weekly S32 
 
 When Servant not Entitled to Current Wages . . 833 
 
 Contract within Statute op Frauds .... 833 
 
 Stamp not Eequired on Contract op Hiring . . . 834 
 
 In a contract of hiring and service, as in other contracts, there The considera- 
 must be consideration on which to found the agreement between '°°' 
 master and servant, and it must be express, or necessarily implied. 
 Whether there is consideration or not is sometimes a matter of great 
 doubt and nicety, and would, of course, in most instances, depend 
 upon the terms used by the parties ; but the authorities do not 
 supply any clear rule in cases where the consideration is not 
 expressed in so many words.^ The courts, however, will not inquire 
 iato the adequacy of the consideration, for otherwise they would 
 be taking upon themselves to decide whether the parties had made 
 a proper bargain for themselves.^ But where the consideration is 
 altogether illegal or immoral the Courts would decline to enforce 
 the contract based upon it. 
 
 In the absence of any express or implied stipulation as to its Dmation of 
 duration, the contract of hiring between a master and a servant ® ooo'i'^ct. 
 is deemed to be a general one, and to last for the period of a 
 year ; * and this rule of law is applicable to the hiring of domestic Yearly hiring, 
 servants.* Where a domestic servant is hired, and there is no Domestic ser- 
 mention made of the duration of the hiring, or of the time for giving custom*be^'' 
 
 1 See Macd. M. & S. 139 ei seq. ^ HUchcock v. Coker, 6 A. & E. 438. 
 
 ' See Cope v. Sowlands, 2 M. & W. 149 ; Sex v. Northwingfield, i 0. & Ad. 912. 
 * Fawcett v. Oash, 5 B. & Ad. 904 ; Buckirigham. v. The Surrey and Hants Canal 
 Cb.,46L.T. 885. 
 
 5 See Bex v. WorfieU, 5 T. R. 506. 
 
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882 MASTER AND SERVANT. [part v, 
 
 terminated by notice or wamins', it is now a well established and iudicially- 
 
 a month's . ^' ,,...„, »"' ,•' 
 
 notice, or recognized custom that the hiring is tor the space oi a year, but 
 S°lieu of^™^*^ ™^y ^® determined at any moment by either party giving the 
 notice. other a month's notice or warning, or a month's wages in lieu of 
 
 such notice. If necessary, such custom can be proved by parol 
 evidence.^ 
 Variation of Where the term of service is express, or the contract contains 
 the hiring. Stipulations, conditions, or other matters which clearly show that 
 the parties to it meant some period other than a year, the legal 
 presumption is rebutted. It is where the contract is for an 
 indefinite time that the period of a year is implied f and such 
 presumption is excluded where the terms of the contract are 
 inconsistent with it, as where either party shall be at liberty to 
 determine the contrd^ct at any time ; * or if the hiring be for less 
 than a year,' as, for instance, when a servant is taken " on trial " for 
 a month ; or where the master has not the exclusive control over the 
 servant." Again, where well-established custom permits the hiring 
 to be terminated after a certain notice, the giving of such customary 
 notice, though but a short time after the commencement of the 
 contract, puts an end to it. 
 Period for pay- Where there is nothing in the contract to show that it is not 
 noTneceaearily intended to be a yearly hiring, but rather the opposite conclusion 
 duration rf^the ™^y ^® inferred, the paying of wages at short intervals, such as a 
 contract. fortnight, will not render it less a contract to endure for a year,' 
 
 and even the payment of wages by the week, where the contract 
 contained a stipulation that a month's notice should be given to 
 determine the hiring, was held not to take it out of the category of 
 When hiring general hiring.® But in the cases where the only means of ascer- 
 taining the duration of the contract is the reservation of weekly 
 wages, then the period of service is deemed to be but weekly : ' 
 thus, a weekly hiring at so much a week for a year is a weekly and 
 not yearly hiring.'" There is no contract of service at all when the 
 circumstances tend to rebut such a presumption, as where a person 
 is taken and housed out of cliarity,^^ or where the agreement was 
 for cohabitation and not merely for service.'^ 
 
 ^ FaiKett V. Cash 5 B. & A. 904. "In the case of domestic servants, the rule 
 is well established that the contract may be determined by a month's notice or a month's 
 wages." Per Littledale, J., in Turner v. Mason, 14 L. J. Ex. 311. 
 
 ^ Johnson v. Blenkensopp, 5 Jur. 870. 
 
 ^ Bex V. Newton, 10 B. & C. 838 ; see also Baxter v. Nurse, i C. & K. 10. 
 
 * Rex V. Great Bowden, 7 B. & C. 249. 
 
 ^ Bex V. Standon Massey, 10 East, 756. 
 
 " Bex V. KiUinghclme, 10 B. & C. 802. 
 
 ' Bex V. BirdhrooJc, 4 T. E. 425. 
 
 8 Bex V. Great Yarmouth, 5 M. & S. 114. 
 
 ' Bex V. St. Andrews, 8 B. & C, 679 ; Toione v. Campbell, 3 C. B. 921. 
 
 ^° Bdbertson v. Jenner, 15 L. T. 514. 
 
 11 Bex V. 8010, I B. & Aid. 178. 12 Bex v. NorthwingfieU, I B. & Ad. 912, 
 
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 weekly. 
 
CHAP. m.J CONTRACT OF HIRING AND SERVICE. 833 
 
 The contract of service of domestic or menial servants by a Servant 
 custom whicli is well known may be determined on either side at quitting eer- 
 any time by giving a month's ^ notice or warning, or by paying a ™e or rightly 
 month's wages in lieu of notice.^ The servant discharged is entitled without notice 
 
 ... L n J? ii J.* T J. j-1 iiot entitled to 
 
 to a proportionate amount or wages lor the time served at the current wages. 
 moment of leaving service.' But where a domestic servant 
 wrongfully quits his employment he forfeits all claim to wages for 
 that portion of time during which he has served, and cannot, after 
 halving wilfully violated the contract according to which he was 
 hired, claim the sum to which his wages would have amounted if he 
 had not broken his contract merely deducting therefrom one month's 
 wages.* Thus, if a servant were paid quarterly according to the terms 
 of his hire, and wrongfully left in the middle or towards the end of 
 a quarter, he would forfeit all the wages of the current quarter." 
 The effect of this is to compel the servant to give his master proper 
 and timely notice if he wishes to save his wages. This is equally 
 the case where the servant is rightfully discharged by his master 
 at a moment's notice and without payment in lieu of notice. 
 Wages due but unpaid at the last period fixed for their payment 
 would, however, be recoverable by the servant though he subse- 
 quently left his master's service without giving proper notice, or was 
 rightfully discharged without notice.'^ 
 
 A contract for the hire of a servant may be either by deed or Contract of 
 by parol. If the contract (whether made in England or out of statuteTf 
 England) ' is one that on its face cannot be performed within ^™"'Js- 
 a year from the date of its inception, then the fourth section of 
 the Statute of Frauds" is applicable, and its terms must be 
 reduced into writing, though not necessarily in the shape of a 
 formal agreement, and a proper compliance must be made with 
 the provisions of that section if an action is to be founded on it.° 
 An oral agreement made on May 27, that a servant should enter 
 service for a year to commence from the 30th of June following, ■" 
 and a like agreement (though there was a memorandum, but un- 
 signed) made on July 20, to take efEect from the 24th of July, 
 were both held to be within the statute." Though such contract 
 maybe defeasible within the year, it is none the less within the 
 
 ' Calendar month. Simpson v. Margelson, 11 Q. B. 27. 
 
 ' Fawcett v. Cash {ubi sup.); Beesion v. Oollyer, 4 Bing. 309, 313. 
 
 2 See Gordon v. Potter, i i<\ & F. 644. 
 
 * See Wahh v. WciOey, L. E. 9 Q. B. 367. 
 
 ' Wahh V. Wallet/ {ubi sup.) ; Boston Deep Sea Fishing and Ice Co. v. Ansell, 
 39 Ch. D. 329, 359. 
 
 ' See Tayhr v. Laird, 25 L. J. Ex. 329 ; Button v. Thompson, 38 L. J. C. P. 225. 
 
 ' Leroux v. Brown, 22 L. J. C. P. i. ^ 29 Car. II. c. 3. 
 
 ' Leroux v. Brown {ubi sup.) '" BracegirdU v. Heald, i B. & Aid. 722. 
 
 " SnelUng v. Lord HuntingfieU, i C. M. & E. 20. See also the two cases which 
 clearly decide the point, Banks v. Orossland, L. R. 10 Q. B. 97 ; Davey v. Shannon, 
 4Ex. D. 81. 
 
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834 MASTER AND SERVANT. [pabt v. 
 
 statute.' But the statute does not affect contracts which have 
 been completely executed on one side,^ or apply to a hiring which 
 is merely implied from circumstances ; ^ nor does it extend to cases 
 where the contract need not necessarily be performed within a- 
 year, and as a matter of fact has not been performed, if it is such 
 that it might be performed within the year, and there is no stipu- 
 lation to the contrary.* The equitable doctrine of part performance 
 is not extended to a contract of service by section 25, sub-section 7- 
 of the Judicature Act, 1873.' The plaintiff servant suing for 
 wages cannot bring his action under a contract which fails to 
 comply with the statute, but must rely on a quantum meruit for 
 the services he has rendered to his employer, 
 stamp not An agreement for the hire of a menial servant is exempted 
 
 contract oi from the necessity of being stamped by virtue of the Stamp Act^ 
 
 hiring. 1891." 
 
 1 Dohson V. Collins, 25 L. J. Ex. 267. But see Cawihorn v. Cordery, 32 L. J. C. P. 
 152, which was decided on the ground of implication of a fresh contract for a year's hire- 
 on a subsequent day. 
 
 ^ Cherry v. Heming, 19 L. J. Ex. 63. ^ Beeston t. Collyer, 4 Bing. 309, 
 
 * Souch T. Stravibridge, 2 C. B. 808. ^ Britain v. Bossiter, 11 Q. B. D. 123. 
 
 ^ 54 and 55 Vict. c. 39. Schedule, sub voce Agreement. 
 
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CHAPTER IV. 
 
 DETEEMINATION OF THE CONTRACT OF HIRING 
 AND SERVICE. 
 
 PAGE 
 
 Termination op Contract by Death op Master . . 835 
 Servant Entitled to Wages Earned up to Master's 
 
 Death . . . g^j 
 
 Servant Employed by Partners .... 836 
 
 Termination op Contract by Death op Servant 836 - 
 
 Discharge oi' Servant : Servant giving Notice . . 836 
 
 Forfeiture op Wages on Wrongful Leaving . 837 
 
 Master giving Notice 837 
 
 Grounds of Discharge without Notice : Wilful 
 
 Disobedience op Orders . . . 837 
 
 Gross Moral Misconduct . . 838 
 
 Habitual Negligence ... . 838 
 
 Knowledge op Master op Good Ground op Dis- 
 charge not necessary at Time op Dismissal . 838 
 
 Incompetence, or Permanent Disability prom Ill- 
 ness 839 
 
 Mere Temporary Illness Insuppicient 839 
 
 Eemedy op Servant on Wrongful Dismissal 839 
 
 Measure op Damages . . 840 
 
 Holding op Premises as Servant 840 
 
 The contract of hiring and service may be put an end to or deter- 
 mined in various ways ; it is usually terminated by the discharge 
 of the servant, whether by his master or by himself. 
 
 The death of the master puts an end to the contract ; and in Termination 
 respect of service after death, the contract is dissolved, unless alatToT''' ^^ 
 there be a stipulation express or implied to the contrary ; ' so, master. 
 where a farm bailiff was engaged at weekly wages, and his contract 
 of service was to be determined by six months' notice or payment 
 of six months' wages, and the master died, his administratrix was 
 held not bound to continue the bailiff in her employment or pay 
 him six months' wages after his master's death. ^ The rule that a Servant 
 contract of service, unless otherwise stipulated for, is determined by ^ages earned 
 the death of the hirer, and that, if for a time certain, and the death ^P^J^™' ''''''' 
 
 1 Farrow v. Wilson, L. R. 4 C. P. 744- ^ ^^"^■ 
 
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836 
 
 MASTER AND SERVANT. 
 
 [PAKT V. 
 
 Servant 
 employed by 
 partners. 
 
 Contract 
 terminated 
 by death of 
 servant. 
 
 Discharge 
 of servant. 
 
 Servant giving 
 notice. 
 
 occur before the expiration of that time, the servant cannot recover 
 wages for any portion of the time that he has served, does not 
 apply to the case of domestic servants, who are by custom paid 
 for the actual services rendered by them ; therefore, if a domestic 
 servant be discharged on the death of the master, he can make 
 good a claim for wages earned by him during his period of service.' 
 Servants must look for their wages, if so discharged, to the per- 
 sonal representatives of their masters, that is, their executors or 
 administrators. 
 
 A question of some doubt arises where a domestic servant is the 
 servant of two or more partners. Of course where a hirer goes 
 into partnership, the ordinary domestic servants, employed in his 
 household are not affected by his partnership. But if the servant 
 is the hired servant of the partnership, which is dissolved either by 
 death or mutual agreement, is the hiring at an end, or does the 
 servant remain in the employ of the continuing partner ? Where 
 in such a case one of the partners dies, unless there is a special 
 provision to the contrary, the partnership is at an end, and so on 
 principle, the service of the servant would be determined, notwith- 
 standing there was no real change in the duties of the servant.^ 
 A dissolution of partnership by mutual agreement would amount 
 to a dismissal, and being wrongful would entitle the servant to 
 damages, though only nominal, if the remaining partners were 
 willing to employ him.'' Soo, too, the appointment of a receiver 
 of the partnership assets would amount to a dismissal of the 
 servant.* 
 
 The death of the servant clearly determines the contract, for 
 the rendering of the personal services of the hired is no longer 
 possible. There is very little to be said on this point except that 
 the personal representatives of the servant are not liable on such a 
 contract, even if it were worth while to sue them ; and that where 
 the servant dies during the currency of his service, custom entitles 
 his representatives to sue for the wages due for the broken period 
 of service.^ 
 
 The contract is likewise put an end to by the discharge of the 
 servant. This may be brought about by the servant himself giving 
 notice. A domestic servant is by custom entitled to discharge 
 himself by giving at any time a month's notice or warning ; also 
 
 ^ See Cutter v. Powell, 6 T. R. 320. In the course of this case Lawrence, J. said : 
 " With regard to the common case of a hired servant . . . such a servant, though hired 
 in a general way, is considered to be hired with reference to the general understanding 
 upon the subject that the servant shall be entitled to his wages for the time he serves, 
 though he do not continue in the service during the whole year." 
 
 2 See Tosher v. Shepherd, 30 L. J. Ex. 207. 
 
 ^ See Brace v. Colder and others, [1895] 2 Q. B. 253. 
 
 "' See Reid v. Emihsives Co., igQ.B.U. 264. 
 
 ' See Cutter v. Powell (jubi s^tp.). 
 
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CHAP. IV. 1 THE CONTRACT OF HIRING AND SERVICE. 837 
 
 at any time and at a moment's notice on payment of a sum equiva- 
 lent to a month's wages in advance. If a servant wrongfully forfeiture of 
 
 leave, without any warning, he forfeits all wages which mav have ™s^^ °" 
 J • ii 1 i -, „ ° , •' wrongful 
 
 accrued smce the last proper day of payment ; thus, if his wages leaving. 
 
 were agreed to be paid on the first of a month, and he left without 
 
 warning on the fifteenth, the wages that had accrued from the 
 
 first to the fifteenth would be forfeited.^ 
 
 A correlative right exists in the master to discharge a domestic Discharge 
 servant at any time by giving him a month's warning or notice, Maste^°'''i 'n 
 as well as at any time to discharge him at a moment's notice by notice. 
 paying a month's wages in advance. If a servant be discharged, 
 but refuse to go, the master may use sufiicient force to put him 
 from the house,^ for the servant's conduct justifies that which 
 would otherwise be an assault. 
 
 The next step to be considered is the grounds which will justify Grounds of 
 the master in discharging a servant without notice ; and it may ^fthcrafnotice 
 here be mentioned that a ground for such discharge is in most 
 instances a reason for refusing to pay wages. The following are 
 the principal grounds which may be taken to justify the discharge 
 of a servant : — 
 
 «. Wilful disobedience of any lawful order of the master. 
 
 b. Gross moral misconduct. 
 
 c. Habitual negligence in business, or conduct calculated 
 
 seriously to injure the master's business. 
 
 d. Incompetence, or permanent disability from illness. 
 
 a. Wilful disobedience to the lawful orders of the master wilful dis- 
 entitles the latter to discharge the servant without notice.' If a "''edience of 
 
 master s order, 
 
 servant wilfully refuses obedience to the lawful order of the master, 
 he must suffer for his obstinacy ; so, where a female servant per- 
 sisted in leaving her master's house against his orders, though to 
 go and visit a dying mother, her conduct was held to justify her 
 dismissal.* The master's orders should be confined to those ser- 
 vices for which the servant was hired ; and the latter cannot be 
 peremptorily dismissed without compensation for refusing to 
 perform services which he never bargained to undertake. Mere 
 obstinate refusal to do a particular act will not justify such a dis- 
 missal.^ The refusal to do work or disobedience that causes a loss 
 
 ^ Spain V. Arnott, 2 Stark. 256. ^ Mackay v. Ford, 29 L. J. Ex. 404. 
 
 ^ Uallo V. Brounclcer, 4 C. & P. 518. 
 
 * Turner v. Mason, 14 L. J. Ex. 311. See also Amor v. Fearon, 9 A. & E. 548 ; 
 Spain -v. Arnott {ubi sup.). 
 
 ' Jacquot V. Bou/ra, 3 Jur. 776. "It is not every failure in faithful service which 
 will warrant a master in discharging his servant, and if he does, he must discharge 
 him on the occasion of the misconduct, and not at any time after, at the master's 
 option." Per Bramwell, B., in Horton v. M'Murtry, 5 H. & N". 667, 675 ; and see 
 Edwards v. Levy, 2 F. & F. 94. 
 
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838 MASTEE AND SERVANT. [part v. 
 
 to the master is a ground for the servant's discharge, but such loss 
 
 must be proved, if reliance is to be placed on it.^ 
 
 Gross moral b. Gross moral misconduct is a good ground for discharging a 
 
 servant.^ Theft from his master,' embezzlement,'' pregnancy of a 
 
 maid-servant,° being the father of a bastard child," an attempt to 
 
 ravish a maid-servant,' and drunkenness,' all constitute good 
 
 grounds for discharge of servant and forfeiture of wages. If a 
 
 servant is grossly rude and insolent he may be at once dismissed ;" 
 
 so if he is violent and uses abusive language towards his master 
 
 he may be rightfully given into custody.'" It seems, however, that 
 
 the discovery of the servant's misconduct in a previous situation, 
 
 unless fraudulently concealed from the second master, is not a 
 
 ground for instant dismissal, but notice is required." 
 
 Habitual c. If a servant absent himself from his work, or is habitually negli- 
 
 bufiness''or"' gent in it, he may be summarily dismissed, for otherwise his master 
 
 «'°"5w J might be seriously injured by his misconduct.'^ So, too, where he 
 
 injure master's acts in a Way incompatible with the due and faithful discharge of 
 
 nsmess. j^-^ ^^^y. ^^ j^jg master.'^ But mere temporary neglect which does 
 
 not injure the master, does not justify an instant dismissal." But 
 
 an isolated act of negligence, whether of omission or commission, 
 
 which caused injury to his master, might be a sufBcient ground 
 
 for his instant dismissal. A servant who is entrusted with the 
 
 goods of his master is bound to use ordinary diligence in their 
 
 care and preservation ; and if he fail to use it, and loss ensues, he 
 
 is liable to an action at the suit of his master.'' 
 
 Knowledge of Knowledge on the part of the master of the actual fact justifying 
 
 ground of the dismissal is not necessary at the time when he dismisses the 
 
 necessafyat* servant. If a master discharge a servant, and can subsequently 
 
 time of dis- show that at the time of the dismissal a good ground of discharge 
 
 existed, though he was ignorant of its existence, he can justify his 
 
 conduct.'" The case of Cussons v. Skinner " seems to be opposed to 
 
 the above doctrine; but apparently it was decided on its own 
 
 peculiar circumstances ; and Parke, B., in the later case of Spots- 
 
 ivoode V. Barroiv,'^" though one of the judges who had taken part ia 
 
 its decision, did not feel bound by it. In Willetts v. Green,^^ 
 
 ^ Oussons V. Hhinner, ii M. & W. i6i. ^ Oallo v. Broundxr , 4 C. & P. 518- 
 
 ^ Ctmninghame v. Fonblanque, 6 C. & P. 44, 49. 
 
 * Spotswoode y. Barrow, 16 L.J. Ex. 226. 
 
 '' Connors \. Justice, 13 Ir. C. L. Rep. 457. 
 
 " Eexy. Welford, CM. 57. ? Atkinv. Acton, 4 C. & P. 208. 
 
 8 Speck y.PhiUips, 5 M. & W. 279. " Fras. M. & S. 71 ; Macd. M. & S. 213. 
 
 1" Shaw V. Ohairitie, 3 C. & K. 21. ^^ Andrewes v. Cfarstin, 31 L.J. C. P. 15. 
 
 '^ Oallo V. Brouiiclcer (uhi swp. ) ; Bohinson v. Hindman, 3 Esp. 235 ; see also Turner 
 V. Jiohinson, 5 B. & Ad. 789. 
 
 13 Pearce v. Foster, 17 Q. B. D. 536. " FiUieul v. Armstrong, 7 A. & E. 557. 
 
 '^■' See Walker v. British Guarantee Association, 18 Q. B. 277. 
 
 1^ Willetts V. Green, 3 C. & K. 59 ; i^otswoode v. Barrow {ubi sup.). 
 
 " Vbi sup. 1* Cfbi sup. i' Ubi sup. 
 
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<;hap. IV.] THE CONTRACT OF HIRING AND SERVICE. 839 
 
 Alderson, B., said : •' If an employer discharge his servant, and at 
 the time of the discharge a good cause of discharge in fact exists, 
 the employer is justified in discharging the servant, although at 
 the time of the discharge the employer did not know of the exist- 
 ■ence of the cause. This point has been much discussed in the 
 House of Lords and elsewhere, but what I have stated is the 
 result." 
 
 rf. If a servant be hired for a particular service or purpose, and lucompeteuce, 
 he prove utterly incompetent to perform his part of the contract, disawuty from 
 his employer has clearly a good ground of discharge, for he who iH^ess ; 
 cannot is much the same as he who will not perform his duty ; 
 imperitia culpce adnumeratur} In the case of ordinary domestic 
 servants, it would not be safe to dismiss them without notice or 
 payment of wages for incompetence, for it is common knowledge 
 that a great number of servants ofier themselves, and are hired to 
 perform services which they are wholly incapable of properly 
 rendeidng. Want of experience, clumsiness, absence of skill and 
 finish about their work must be expected when untrained servants 
 at low wages are hired, and must be taken as part of the bargain ; 
 and it would be safe to dismiss only in the higher branches of 
 ■domestic service, where special knowledge and skill were necessary, 
 but which were not forthcoming in the servant who professed to 
 furnish them ; as, for instance, a cook who held himself out to be 
 a proficient in the art of cooking and demanded high wages for his 
 services, might justifiably be dismissed if he altogether failed to 
 redeem his professions in any essential particular. 
 
 A temporary illness with incapacity for work is not a good But not mere 
 ground for discharging a servant, unless the contract has been jfi^^g™*"^ 
 rescinded.^ But a permanent sickness would constitute a ground 
 for dismissal ; ^ so would it be where the master was compelled to 
 hire another servant in the place of the sick one.^ The wages that 
 had been earned by the servant up to the time of his illness would 
 he payable to him, because the contract had been determined 
 through no fault of his own. Unless the contract is put an end 
 to, there is no suspension of the right of the servant to his wages 
 because of his illness and incapacity to work.'' 
 
 If a domestic servant be wrongfully discharged, his remedy is Eemedy of 
 an action against his master for the breach ; and the utmost Wrongful" 
 measure of damages would be the amount of a month's wages,' dismissal, 
 but a jury might give less. If arrears of wages are due to him, 
 or wages have been earned and accrued due since the last day of 
 
 1 Harmer v. Cornelius, 28 L. J. C. P. 85 ; Searle v. Sidley, 28 L. T. 411. 
 
 2 Cuchsony. Stones, 28 L. J. Q. B. 25. 
 
 ^ JUd. ^ Ibid. ^'lUd. _ 
 
 « Fewings v. Tisdal, i Exoh. 295 ; BoUnson v. Hindman (vhi sup.). 
 
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840 
 
 MASTER AND SERVANT. 
 
 [PAKT V. 
 
 Measure of 
 
 Holdirg of 
 premises as 
 servant. 
 
 payment, the servant can recover them on a quantum meruit;^ 
 but lie cannot recover for any further period than that during 
 which he has served.^ He may treat the contract as rescinded, 
 and sue for his wages for the period of actual service rendered by 
 him. 
 
 Domestic servants are not entitled to greater damages than are 
 represented by a month's wages, because, as before pointed out,' it 
 is a well-established custom that their contract of hiring and 
 service can be terminated by a month's notice, or discharge and 
 payment of a month's wages. 
 
 A servant who is allowed to occupy premises belonging to his 
 master for the convenient performance of his services acquires no 
 estate in them, and must give them up when he ceases to be such 
 servant ; and this is so, even where he is allowed to use the 
 premises for the purpose of carrying on an independent business 
 of his own.* 
 
 ^ Sdbins V. JPoicer, 27 L. J. C. P. 257 ; see also Smith v. Bayuard, 7 A. & E. 544. 
 ' Archard v. Eornor, 3 C. & P. 349, ^ Ante, chap. iii. pp. 831 et seq. 
 
 * White V. Bayley, 10 C. B. K. S. 227. 
 
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CHAPTER V. 
 
 THE CONTRACT OF APPRENTICESHIP. 
 
 Definition of the Contract 
 
 Pasties to the Conteact : Infant Master 
 
 Mabkied Woman Misteess 
 
 MiNOE Apprentice 
 
 Sureties 
 
 Covenants op Apprenticeship Independent 
 
 Paetnebs ... . ... 
 
 Paeish Apprbntioks ... . . 
 
 yottthful offenders . . . . 
 
 General Requisites : Agreement in Writing . 
 
 Master and Apprentice Parties to the Agreement 
 
 Consideration 
 
 Apprenticeship not to be Disadvantageous to the 
 
 Infant . . 
 
 Eights and Duties of the Parties — 
 
 Rights op the Master . . ... 
 
 Duties op the Master 
 
 Assignment and Turning Over 
 
 Eights of the Apprentice : Proper Instruction 
 To Remain in the Place where Engaged to 
 Serve 
 
 Duties op the Apprentice 
 
 Dissolution op the Contract : Effluxion op Time 
 
 Majority of Apprentice 
 
 Consent op Parties ... 
 
 Death op Apprentice or Master . 
 
 Permanent Illness op Apprentice 
 
 Bankruptcy op Mastee . .... 
 
 Geoss Misconduct op the Apprentice . 
 
 Disputes between Master and Apprentice 
 
 S42 
 842 
 842 
 842 
 842 
 843 
 843 
 S44 
 
 844 
 845 
 84s 
 84s 
 
 845 
 
 846 
 846 
 847 
 847 
 
 847 
 848 
 
 849 
 849 
 S49 
 850 
 
 The relation of master and apprentice is essentially a domestic 
 relation. Formerly it was more akin to that of parent and child 
 than at the present day. In many trades the master used to 
 receive the apprentice into his house, supplying him with food 
 and lodging, and treating him as one of his own household, and 
 had more control over him than over an ordinary domestic 
 servant. 
 
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842 
 
 MASTER AND SERVANT. 
 
 [part v. 
 
 Definition of 
 contract. 
 
 Parties to the 
 contract. 
 
 Infant master 
 
 Married 
 woman 
 mistress. 
 
 Minor 
 apprentice ; 
 covenants by. 
 
 Sureties. 
 
 The term apprentice is derived from the French word 
 apprendre, " to learn." The contract of apprenticeship is between 
 the master on the one side and the apprentice on the other ; and 
 the essence of the contract is that the master should teach, and the 
 apprentice serve and learn. It is this contract to teach and to 
 learn that distinguishes it from the ordinary contract of hiring 
 and service ; but no technical words are necessary to create the 
 relation of master and apprentice, provided the intention of the 
 parties that such should be the result can be gathered from the 
 contract between them.^ 
 
 Apprenticeship was devised less for the advancement of handi- 
 crafts than as a convenient and powerful weapon for upholding 
 trade monopolies ; for at one time no one was permitted to exercise 
 certain crafts or trades who had not served his proper apprentice- 
 ship. In England this relation had an importance over and 
 above the mere rights and duties of the master and apprentice ; 
 for it was involved largely in the settlement of paupers under the 
 Poor Laws ; for if an apprentice serves a specified time as such in 
 a particular parish, he thereby acquires a settlement in it, until he 
 displaces it by acquiring a fresh one. But this is not a matter 
 which need here be further pursued. 
 
 At common law any person capable of making a contract may 
 take an apprentice ; and it seems that an infant can take one," 
 An alien trader may now take one.^ It has been h6ld that a 
 married woman could not take an apprentice; but it would be 
 difficult to maintain such a proposition now, when she is enabled to 
 carry on a separate trade, and to enter into contracts, and become 
 liable as a feme sole in respect of such trade.* An adult may 
 of course bind himself. A minor, even without his parent's con- 
 sent, may voluntarily bind himself, an indenture of apprenticeship 
 being considered primd facie beneficial to him ; ^ but he will be 
 only subject for its enforcement to the jurisdiction of the justices 
 under the Conspiracy and Protection of Property Act, 1875,^ and 
 the Employers' and Workmen Act, 1 87 5 ; ' and not to an action 
 for any breach of his covenant,^ except by the custom of the City of 
 London when over fourteen,^ or to an injunction.^" Because in the 
 large majority of instances the apprentices bound are under age, 
 
 1 Hex V. Sainham, i East, 531. It is enough if it can be gathered that the appren- 
 tice is to be taught a trade by and not merely to serve his master. Bex v. Laindon, 
 8 T. B. 379. - Hex V. tSt. Petrox, Dartmouili, 4 T. E. 196. 
 
 ^ EfiFect of Kepeal of 14 & 15 Hen. VIII. c. 2, by 17 & 20 Vict. c. 62. 
 
 * 45 & 46 Vict. c. 75, s. I, snb-s. 5. 
 
 '' See Cooper v. Simrmnds, 31 L. J. "SI. C. 138 ; see Aiite, Part IV. chap. ii. 
 
 " 38 & 39 Vict. c. 86 ; this repealed 4 & 5 Eliz. c. 4. 
 
 ' 38 & 39 Vict. c. go, ss. 5, 6, and 7. ^ Gylbert v. Fletcher, Cro. Car. 179. 
 
 • Stanton's Case, Moore, 135 (25 Eliz.) ; Burton v. Palmer, 2 Bulst. 192. 
 " Be Francesco v. Barnum, 43 Ch. D. 165. 
 
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CHAP, v.] THE CONTRACT OF APPRENTICESHIP. 843 
 
 and so cannot be sued for their breaches of covenant, it is usual to 
 make the parents or guardians, or friends, parties to the agreement 
 as sureties ; not for the purpose of enforcing the agreement, for 
 the justices have summary power to compel the apprentice to 
 serve, but for the purpose of enabling the master to sue on the 
 covenants.^ The minor must execute as well as the surety ; and 
 if the latter execute the deed but the former refuses to do so, the 
 intended master has no right of action against the surety.^ 
 
 The covenants in an indenture of apprenticeship are independent, Covenants of 
 and the breach of a covenant on the part of one party is no answer fndependen?'^ 
 to an action brought by him on a breach of covenant on the part of 
 the other party; thus, an act of misconduct on the part of an 
 apprentice is no answer to an action brought for breach of the 
 covenant by the master to teach and maintain the apprentice.' But 
 gross misconduct on the part of the apprentice which would render 
 it dangerous to the interests of the master to keep him on the 
 premises, e.g., habitual theft, would be an answer to an action 
 against the master on his covenant to teach and maintain the 
 apprentice.* If the master on his side fail to teach or perform his 
 part of the contract, the apprentice should not leave him, but sue 
 him on his covenant to teach.' As has been seen, if the provisions 
 of the deed are unreasonable and disadvantageous for the infant 
 they cannot be enforced either against the infant or his sureties, but 
 the deed will be treated as void for all purposes." If, however, a When 
 minor enter into a covenant to pay a reasonable premium for his a?ter reaching 
 instruction, the covenant may be enforced against him on reaching majority, 
 majority on the principle that such instruction may be deemed a 
 " necessary " for him, and his covenant to pay it is no more than a 
 " single" bond given to secure the payment of the price of neces- 
 saries supplied to him.' 
 
 An apprentice may be bound to a partnership, and on the death Partners, 
 of one of the partners he becomes in law the apprentice of the 
 survivor.^ He may be likewise bound to the members individually, 
 and to a firm and their successors ; and he will be bound to remain 
 the apprentice of those who do succeed to the original business. 
 But where an apprentice was bound to a firm which afterwards 
 dissolved and became two separate firms in difEerent places, and 
 the business to learn which the apprentice was bound was not 
 carried on in its entirety by either of the new firms, it was held 
 
 ^ See Bex v. Hivdringham, 6 T. E. 557. ^ Bluch v. Mather, W. N. 1886, 120. 
 
 3 Winstone v. Linn, i B. & C. 460 ; Phillips v. Clift, 4 H. & N. i68. 
 
 * Learoydv. Brook, [1891] i Q. B. 431. 
 
 ° See Eaton v. Western, 9 Q. B. D. 636. 
 
 ' De Francesco v. Barnum, 45 Ch. D. 430. 
 
 ' Co. Litt. 172 a; Walter v. Everard, [1891] 2 Q. B. 369. 
 
 ' Bex V. St. Martin's, Exeter, 2 A. & E. 655. 
 
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844 
 
 MASTER AND SERVANT. 
 
 [PAHT V. 
 
 Corporation 
 
 Parish 
 apprentices, 
 binding of. 
 
 District 
 Councils. 
 
 Limits of 
 
 Protection of 
 apprentices. 
 
 Youthful 
 offenders. 
 
 that neither of them was the successor of the original firm, or 
 entitled to the services of the apprentice.' He may be also bound 
 to a corporation, if it provides for his proper instruction.^ 
 
 The principal statutes regulating the binding out of pauper 
 children as apprentices are 43 Eliz. c. 2, 4 & 5 Wm. IV. c. •](> 
 (s. 15), and 7 & 8 Vict. c. loi. Under this last Act the sole power 
 of binding pauper apprentices was conferred on the guardians of 
 the Poor Law Unions/ but under the Local Government Act, 
 1893/ the duties of the Poor Law guardians have been transferred 
 to the District Councils ; consequently the District Councils would 
 be now the proper authorities for the apprenticing of the pauper 
 children of their district. The term " parish apprentice," though 
 inaccurate, is convenient. No child under nine years of age, can 
 be apprenticed ; ° a male infant can be bound till he reaches 
 majority, and a female till she reaches majority or marries;* 
 though the binding may extend to a shorter period.' A parish 
 apprentice cannot be discharged under age without his consent or 
 that of his parent, and the consent of the authorities is requisite ; * 
 though it is otherwise after the apprentice comes of age ; ' nor can 
 he be put away, transferred, or in any way discharged or dismissed 
 from his service without the consent of two justices;'" and if a 
 master wilfully abandon him, or remove out of the country, or 
 forty miles from the parish where the apprentice is bound, he 
 renders himself liable to a penalty of £\o}^ On the death of the 
 master, where the apprenticeship premium has not exceeded ^5, 
 the justices may, within three months of the death of the master 
 or mistress, order the apprentice to serve the residue of his term 
 with the widow, husband, son or daughter or brother or sister, 
 executor or executrix, or administrator or administratrix of the 
 master or mistress.'^ Where insolvency or reduced circumstances 
 render a master incapable of employing his apprentice, in whose 
 case no more than a ;^5 premium has been paid, the master may 
 apply to two justices to discharge the apprentice.'' A youthful 
 offender, or a child detained in a reformatory or industrial school, 
 may be, with his own consent, apprenticed by the managers, 
 though the period of detention has not expired ; and such appren- 
 ticing is as valid as if done by his parents.'* 
 
 ' Eaton V. Western, 9 Q. B. D. 636. 
 
 ^ Burnley Equitable Co-operative and Priidential Society v. C'asson, [1891] J 
 Q. B. 75. 
 
 ^ Sect. 12. <* 56 & 57 Vict. c. 73. 5 56 Geo. III. c. 139, s. 7. 
 
 '' See Sex v. St. Petrox, 1 Bott, 607. ^ 4 Bums' Justice, 209-233. 
 
 ' Sex T.St. Austrey, i Burr. Sett. Gas. 441. 
 
 ' Per Lord Mansfield in Sex v. St. Austrey {uhi sup.). 
 1" 32 Geo. 111. c. 57, s. 13 ; 56 Geo. III. c. 139, s. 9. " Sect. 8. 
 
 '2 32 Geo. III. c. 57, s. 2. IS Sect. 8. 
 
 " 54 & 55 Vict. c. 23, B. I (Reformatory and Industrial Schools Act, 1891). 
 
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CHAP, v.] THE CONTRACT OF APPRENTICESHIP. 845 
 
 The agreement of apprenticeship must be in writing. Under the General 
 early statute of 5 Eliz. c. 4, s. 2 5, the agreement by which an appren- '^«i"'^'**s- 
 tice was bound to exercise a trade must have been by indenture, but it writTng.' 
 this is now no longer absolutely necessary,' but the document must 
 be duly stamped.^ Formerly the period of apprenticeship for 
 learning a trade was not less than seven years,' but now no 
 minimum time is imposed.^ It is necessary, for the double purpose Master and 
 of carrying on a trade and obtaining a settlement, that the niaster apprentice 
 
 . , ' parties to the 
 
 and apprentice should be named as parties to the agreement, and agreement. 
 that the former stipulate to instruct and the latter to learn and 
 to serve,^ and if there be no stipulation to serve there will be no 
 apprenticeship.^ It is not necessary to the validity of the appren- 
 tice's indenture that the master should sign the counterpart,' and 
 in one case it was held sufficiently executed by the apprentice and 
 his father (who were both unable to write) desiring a friend to write 
 their names for them opposite the seals, the apprentice then taking 
 the deed and delivering it to his master.^ It is requisite that the Consideration 
 consideration or premium be duly set f orth,^ but instead of an ad ""^ °*™^" 
 vcdorem stamp one of half-a-crown only is now chargeable.'" 
 
 The apprenticeship deed, as has been seen, must not be disad- Apprentioe- 
 vantageous to the apprentice who is an infant," and if it is, he may be'diSidvan-' 
 treat it as not enforceable against him ; '^ thus, where an infant was t«p°"s to the 
 apprenticed by a deed containing a provision that the master should 
 not be liable to pay wages to the apprentice so long as his business 
 should be interrupted or impeded by or in consequence of any 
 turn-out, and that the apprentice might, during such turn-out, 
 employ himself in any other manner, or with any other person for 
 his own benefit, it was held that this provision could not be enforced 
 against him." But if the master only fairly protects himself against 
 the exigencies of the trade in the matter of strike clauses, the deed 
 will not be invalidated." But it is now settled law that where a 
 
 ' See 54 & 55 Vict. u. 39, s. 25, which enacts that every writing relating to the 
 service of an apprentice placed with any master to learn any profession, trade, or em- 
 ployment is to be deemed an instrument of apprenticeship. 
 
 ^ Wooditock Union v. Shipston-oti^Stour tfnion, 62 L. J. M. C. 43. 
 
 ' When an apprentice entered into a covenant to serve for a less period, the inden- 
 ture was voidable at his election. Surnley v. Jennings, 6 Esp. 8. 
 
 * See Bex v. Mainham, I East, 531. ^ See Sex v. Chesterfield, 2 Salk. 479. 
 
 * Bej; V. Cromford, 8 East, 25. '' See MiUership v. Brookes, 29 L. J. Ex. 369. 
 
 * Bex V. Languor, 4 B. & Ad. 647. 
 
 ° Bex V. Amersham, 4 A. & E. 508 ; Westlake v. Adams, 22 L. J. C. P. 271. 
 
 " 54 & SS Vict. c. 39, Schedule. " Part IV. chap. ii. pp. 754 et .seq. 
 
 '^ Meakinv. Morris, 12 Q. B. D. 352 ; Be Francesco v. Barnum, 43 Ch. D. 165 ; 
 45 Ch. D. 430. 
 
 '^ Meakin v. Morris {nii sup.) ; and see Leslie v. Fitzpatrich, 3 Q. B. D. 229. 
 
 " Leslie v. Fitzpatrick {uMi sup.). It is doubtful whether Lord Coke's dictum, 
 that an infant's bond or writing with a penalty shall not bind him, could be at the 
 present day properly applied to this class of contract ; for, notwithstanding the penalty, 
 the contract as a whole might be distinctly advantageous to him. See Chments v. 
 London <£• North-Western Bailway Co. [1894] 2 Q. B. 482. It is also to be noticed 
 
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846 MASTER AND SERVANT. [part v. 
 
 Claim of master in an apprenticeship deed secures to himself the right of not 
 
 SsconMnue P^jiiig wages to or of discontinuing the instruction of the appren- 
 
 payment of tice, whether at his own free will, or by reason of strikes or lock- 
 wages or . „.,.,. 
 tuition unen- outs m the trade or profession, such stipulation as against the 
 
 against infant infant and his sureties makes the contract unenforceable either in 
 
 and sureties, law or equity.' 
 
 Eights and The Master. — The master is entitled to the due and proper 
 
 parties? ^ discharge of the services of his apprentice.^ As an incident to the 
 . Eights of the right of the master to the service of his apprentice, he is entitled to 
 
 ™*^ ^' all the earnings and gains which an apprentice may acquire by his 
 
 labour, either in the service of another, or in an employment on his 
 own account.' A master may justify such a battery as is necessary 
 to defend his person,* and may bring an action against those who 
 detain an apprentice, after knowing him to be such ; ^ also for 
 
 Eight to mode- enticing him away." The master has more authority over an 
 apprentice than over an ordinary servant, for he may legally correct 
 the former, if under age, for negligence or misbehaviour, provided 
 it be done with moderation ; whereas if a master or his wife beat 
 any other servant, it is a good cause for departure and action.' 
 This authority he cannot delegate to another.^ Where the miscon- 
 duct of the apprentice has been gross, it is preferable that the master 
 should summon him before the justices, and settle their disputes. 
 For mere trivial acts of misconduct he cannot turn his apprentice 
 away.' He cannot send or take him out of England.'" The master 
 does not appear to have any legal right to the custody of his 
 apprentice, that is, he cannot recover him by habeas corpus." 
 
 Duties of the It is the duty of the master to receive the apprentice into his 
 
 maser. service, and teach him his trade, and carry out generally his 
 
 covenants in the deed. He must not put him to learn any other 
 trade than that which he was bound to learn. When the appren- 
 tice is to be supported by him, he must find the necessary food and 
 lodging for him. Not only must he feed him in such a case, but 
 
 that the words of the dictum are limited to a bond or writing for payment ; thereforBf 
 if the penalty in a bond or deed of apprenticeship or service did not involve the pay- 
 ment of money, Lord Coke's proposition would seem not to apply at all. 
 
 1 Beg. V. Lord, 17 L. J. M. C. 181 ; Meakin v. Morris, 12 Q. B. D. 352 ; DeFran- ■ 
 cesco V. Barnum, 43 Ch. D. 165 (Gbiity, J.) ; De Francesco v. Barnum, 45 Ch. D. 430 
 (Fry, L.J.) (In the case of De Francesco v. Barnum it is difBcult to appreciate the pre- 
 judice suffered by the infants under their contract of apprenticeship. ) Corn v. Matthews, 
 [1893] I Q. B. 310. 
 
 '■ The enforcement of his rights in this respect will be considered lower down, under 
 the head of the dissolution of the contract, pp. 848 et seq. 
 
 ^ Anon. 12 Mod. 415 ; Thompson v. Savelock, i Camp. 527 ; Foster v. Stewart, 
 3 M. & S. 191. 
 
 * Roll. Abr. 546 r>. pi. 2 ; Bac. Abr. Mast. & Servt. (P. ) 
 
 ^ Bex V. Edwards, 7 T. E. 745. " Bex v. Daniel, 6 Mod. 182. 
 
 ' I Bl. Com. 428. ^ See Coombe's Case, 9 Eep. 76a. 
 
 ' IVinstone v. Linn, i B. & C. 460. 
 '" Coventry v. Woodhatl, Hob. Eep. 134. 
 '' See Bex v. Edwards {ubi sup. ). 
 
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CHAP, v.] THE CONTEACT OF APPRENTICESHIP. 847 
 
 if he fall sick he must find him propei" medicine and medical 
 attendance.' If he fail without lawful excuse in the performance 
 of these duties, and the health of the apprentice suffers or is likely 
 to be seriously or permanently injured, he is liable to a fine or 
 imprisonment.' As apprenticeship is a personal trust and con- Assignment 
 fidence imposed in the master, he cannot of his own will either at o^g/""^"^'"^ 
 law or in equity assign it over to another,^ though he may do so 
 with the consent of the apprentice ; but this will not make the 
 apprentice an apprentice of the assignee for all purposes.* But if 
 the master has no employment for the apprentice at any particular 
 time, it seems he may find temporary employment for him in the 
 service of another person.'^ 
 
 The apprentice has a right to be properly instructed by his Eights of the 
 master in the trade or art which he is bound by his indenture to ^pp"^™''"®- 
 learn, and if the master refuse to teach him his trade, he has an instruction. 
 action on the covenant against him ; this is so not only where the 
 master has covenanted to teach him one trade, but more than one. 
 Thus, if he has covenanted to teach three trades, and ceases to 
 carry on one of them, he is guilty of a breach of contract, and the 
 apprentice may, if he pleases, refuse to continue to serve.* The 
 apprentice has a right to be taught the whole of his trade, and not 
 a mere part of it.' If the master absolutely refuses to perform his 
 part of the contract, and a dispute arises, the justices may sum- 
 marily rescind the instrument, and order the whole or part of the 
 premium paid on the binding of the apprentice to be repaid.^ The 
 apprentice may also sue him on the covenants. Where two partners 
 agreed to teach an apprentice his trade, and one of them retired 
 from the business, and so failed to teach him, the contract was 
 held to be broken." If the contract entitles the apprentice to wages. 
 wages he must be paid them, and unless otherwise stipulated for 
 such wages are due to him though he is temporarily absent from 
 illness.'" He also will be entitled to them without any deduction 
 for damage or injury done to his master's property, unless such 
 deduction is stipulated for." 
 
 An apprentice living: at home, and not forming part of his Eight to re- 
 master s household, is entitled to stop in the place m wnicn it place where 
 was intended he should learn his trade, unless there is an express Hf^l^^ *" 
 provision to the contrary; and if the master insist upon his 
 removing, he can put an end to the contract.'* But where the 
 
 1 JBeg. V. Smith, 8 C. & P. 153. ^ 38 & 39 Vict. c. 86, s. 6. 
 
 ' Coventry v. Woodhall (uhi sup). ■* Baxter v. Burfield, z Stra. 1266. 
 
 ^ See liniith v. Frauds, 55 .J. P. 407. "^ Mien v. Toji}), 20 L. J. Ex. 241. 
 
 ' See Haton v. Western, 9 Q. B. D, 636. " 38 & 39 '^ict- c- 9°, «. 6 (2). 
 
 9 Oouchman v. Sillar, 22 L. T. 480. i" Patten v. Wood, 51 J. P. 549. 
 
 ^' Austin, Apprentices, 53, 54. 
 
 " Eaton V. Western (iM sup.) ; oven-uliug Boijce v. Charlton, 8 Q. B. D. I. 
 
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848 
 
 MASTER AND SERVANT. 
 
 [part v. 
 
 Duties of the 
 apprentice. 
 
 Dissolution of 
 the contract. 
 
 EfSuxion of 
 time. 
 
 Majority of 
 apprentice. 
 
 Consent of 
 parties. 
 
 Death of 
 apprentice or 
 master. 
 
 On death of 
 apprentice or 
 master pre- 
 mium not 
 returnable. 
 
 apprentice resides in the master's house, and forms part of his 
 household, the master is entitled to take him with him to any part 
 of England.^ 
 
 It is a corresponding duty on the a.pprentice to enter the master's 
 service and continue in it ; and when in it, to be obedient, diligent, 
 and respectful. He must obey all lawful commands of his master, 
 that is, commands and orders in connection with the trade or 
 business which he has been apprenticed to learn. He must also, 
 if required, teach other apprentices in his trade not so far advanced 
 as himself. 
 
 The contract of apprenticeship may be dissolved in various ways ; 
 by the effluxion of time, that is, where the term of the apprentice- 
 ship agreed on by the indenture has expired. A master has no 
 common law right to discharge an apprentice who has been bound 
 to him by indenture on which a premium has been paid ; ■' if the 
 conduct of the apprentice warrants his discharge the master in 
 most cases should bring an action on the covenants.^ It may also 
 be avoided by the apprentice on coming of age ; ^ but in such a 
 case he should give his master reasonable notice of his intention 
 of putting an end to their engagement.'' The aiDprenticeship may 
 be dissolved with the consent of all parties concerned." The in- 
 denture must either be cancelled,' or given up animo cancellandi, 
 though not actually cancelled.^ It is also dissolved by the death 
 of the apprentice, or of the master, whose covenant to teach and 
 instruct must of course fail ; ° but if the covenant is to serve the 
 executors of the master, the apprentice is bound to serve them ; '° 
 and it seems that where the master has covenanted to find the 
 apprentice in meat, drink, and other necessaries during the term, 
 his executor is bound to perform the covenant so far as the main- 
 tenance is concerned, if he have assets." If the master die duriug 
 the term, his representatives are not bound to return any part of 
 the premium, as there is only a partial failure of consideration.'" 
 And where the apprentice dies during the term the premium 
 remains with the master." If there is a special provision between 
 the parties that on the happening of a certain condition a portion 
 
 ^ Coventry v. WoodhaU, Hot. Eep. 134 ; and see Eaton v. Western, 9 Q. B. D. 636. 
 ^ See Phillips v. Olift, 4 H. & N. 168 ; Westwick v.Tlieodore, L. R. 10 Q. B. 124. 
 ^ Winstone v. Linn, I B. & 0. 168 ; Westioich v. Theodore [uhi sup.). 
 
 * Wloore V. Wright, 39 J. P. 772. 
 
 * Coghlan v. Callaghan, 7 Ir. G. L. Rep. 291 ; Wray v. Trust, 15 L. T. 180. 
 What would be a reasonable time depends on the facts of each case. Eighteen months 
 has been held an unreasonable time ; Wray v. West (uhi sup.). 
 
 " Bex V. Weddington, Burr. Sett. Gas. 766. ' Hex v. Siiawnton, ibid. 801. 
 
 8 Rex V. Titchfield, ibid., 511. ' Bex v. I'eck, i Salk. 65. 
 
 ''" Cooper V. Simmonds, 31 L. J. Ex. 138. 
 " Wadsworth v. (rye, Sid. zi6. 
 
 " Whincup V. Hughes, L. R. 6 G. P. 78 ; see Ferns v. Carr, 28 Ch. D. 409. 
 '^ HeeWhmciq) v. Hughes (ubi s^^.p.). 
 
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CHAP, v.] THE CONTRACT OF APPRENTICESHIP. 849 
 
 of tlie premium shall be returned, it will be enforced on the happen- 
 ing of that condition.^ 
 
 It is also dissolved by the bankruptcy of the master, which Bankruptcy 
 operates as a discharge of the contract of apprenticeship ; and the °* ™*^*'"^' 
 trustee of the bankrupt's property may pay such sum out of the 
 bankrupt's property to or for the use of the apprentice, regard 
 being had to the amount paid by him or on his behalf, and to the 
 time during which he had served with the bankrupt under the 
 indenture, and to the other circumstances of the case.^ Where an 
 apprentice is bound to a partnership firm without more, the disso- 
 lution of the firm terminates the contract.^ It would also be Cruelty of 
 dissolved by the cruelty or ill-treatment of the master, if such ™*®*®''- 
 would cause the apprentice reasonable ground to fear bodily harm.* 
 
 The contract is practically dissolved by the permanent illness of Permanent 
 
 illnfiflfl ox 
 
 the apprentice ;* but it is not dissolved by the illness of the master, apprentice, 
 though he is precluded from teaching him his trade, and the master 
 cannot discharge him for this cause. 
 
 It may also be dissolved by the misconduct of the apprentice. Gross miacon- 
 The covenants in an indenture of apprenticeship are distinct from apprentice. 
 and independent of each other f consequently misconduct not 
 gross in character in an apprentice affords no justification to the 
 master for putting an end to the contract,' unless the agreement 
 in express terms gives the master power to dismiss the apprentice 
 for such misconduct.'* The remedy of the master is an action 
 against the sureties (if the apprentice is a minor), for breach of the 
 covenants.^ Mere trifling acts of misconduct will not entitle the Trifling mis- 
 master to put an end to the contract, or maintain an action on the aufBcient. 
 covenant against a person who has become bound for the due 
 performance of the indenture.^" But if his misconduct be gross, 
 and his behaviour incorrigible, and attended with substantial 
 injury to the master, it would be a ground for putting an end to 
 the contract ;" as, for instance, habitual theft, '^ or repeated absence Habitual 
 after remonstrance and rebuke." If the apprentice desert his 
 master's service, and does that which disables him from lawfully 
 returning to his master, as by enlisting, the latter is not bound to Enlisting. 
 take him back;" and under the Volunteer Eegulations, 1887," an 
 apprentice is not to be enrolled without his master's consent. 
 
 ' Derby v. Humber, L. E. 2 C. P. 247. 
 
 ^ 46 & 47 "Vict. u. 52, a. 41. See Ex parte Sandhy, i Atk. 149. 
 
 * Brook V. Dawson, 20 L. T. 611. ■* See HalliweU v. Counsell, 38 L. T. 176. 
 
 ^ Boast V. Firth, L. R. 4 C. P. i. " Winstone t. Linn {ubi sup.). 
 
 ' Philipps T. Clift {ubi sup.). ^ Westwicic v. Theodore [uU sup.). 
 
 I 1 Winstone v. Linn (ubi sup.). i" Wright v. Qihon, 3 G. & P. 583. 
 
 " Wise V. Wilson, i 0. & K. 662 ; jVercer v. Whall, 14 L. J. Q. B. 267. 
 '2 Coxv. Matheics, 2 F. & F. 397 ; Learoyd v. Broolc, [1891] i Q. B. 431. 
 ^^ See Wright v. Oihon {ubi sup.). 
 
 " Hughes v. Humphreys, 6 B. & C. 680. Bayment v. Ilinton, L. E. 1 Ex. 244. 
 ^ Para. 231. 
 
 3H 
 
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850 
 
 MASTEE AND SERVANT. 
 
 [PAET V. 
 
 Marriage of 
 apprentice. 
 
 Disputes 
 between 
 master and 
 apprentice. 
 
 Where the apprentice unlawfully absents himself, but the con- 
 tract remains in force, the damages recoverable by the master in 
 an action for the breach are confined to the period from the 
 beginning of the apprentice's absence to the commencement of 
 the action ; and the master has no right to prospective damages.' 
 The apprentice himself cannot avoid his indeiiture by his own 
 delinquency. 2 The marriage of a -minor apprentice (not being 
 one of the City of London) does not put an end to the contract, 
 and if the master suffers damage by reason of it his remedy is by 
 action against the sureties.** 
 
 Disputes between master and apprentice maybe entertained by 
 justices under the Employers' and Workmen's Act, 1875,^ and the 
 apprenticeship may be put an end to or rescinded by their order 
 under the same Act.' The Court of Chancery will not as a rule 
 exercise jurisdiction over disputes between master and apprentice, 
 as it is impossible for it to exercise its coercive jurisdiction with any 
 effect. Thus, it will decline to grant an injunction against an 
 apprentice." The High Court would have, no doubt, jurisdiction 
 to cancel an apprentice's indenture of contract if its terms were 
 manifestly unfair to him.' 
 
 •* Lewis V. Peacey, 31 L. J. Ex. 496. ^ Gh-ay v. Coolcson, 16 East, 13. 
 
 ^ Austin, Apprentices, 58. ^ 38 & 39 Vict. c. 90. 
 
 ^ For the jurisdiction of justices as Courts of summary jurisdiction over appren- 
 tices, Eee sects. 5 to 7 and 10. It would seem that the jurisdiction of the County Court 
 over disputes between master and apprentice is specially excluded by this Statute, see 
 sect. 3. 
 
 " De Francesco v. Barnum, 43 Ch. D. 165. 
 
 '■ See Leslie v. Fitzpatrich, 3 Q. B. D. 229. 
 
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CHAPTER YI. - 
 
 THE SERVANT'S CHARACTER. 
 
 PAGE 
 
 Mastbb not Bound to give Sbbvant a Charactbk . . 851 
 
 Chabactbe Bona Fide given a Privileged Communica- 
 tion 851 
 
 Tkuth should be Fairly Stated 852 
 
 Facts Lbaknt aptbb Dischabge op Servant may be 
 
 Communicated .... . . . 853 
 
 Whebe Malice Established Peivilegb Disappbaes . . 854 
 
 ExPBBSs Malice must bb Proved against the Master . 854 
 
 Onus op Proof op Malice on the Plaintiff . . 855 
 
 Evidence op Malice must be Clear . . . . 855 
 
 Proof op the Falseness op the Charge Insufficient 855 
 Privilege not taken away because Defamatory 
 Words spoken in the Presence op an Interested 
 
 Third Person 855 
 
 How Malice Established 856 
 
 Giving a False Character Actionable if Damage Ensue 858 
 
 Punishable by Fine oe Imprisonment .... 858 
 
 Uttering Forged Testimonials with Intent to Deceive 
 
 Indictable . . ... . 858 
 
 1^0 master is legally bound to give his domestic or menial servant Master not 
 •a character.! If the master does make to a third person in se°rvant a^'^ 
 •confidence a communication in the nature of a character, such character. 
 •communication is primd facie privileged, and no action can be 
 maintained by the servant against him on account of it, if done 
 bond fide and without malice. 
 
 A communication made hand fide upon any subject-matter in character 
 which the party communicating has an interest, or in reference f^Jri^iieged 
 to which he has a duty, is privileged if made to a person having j?™™'^"''^*" 
 a corresponding interest or duty, although it contain criminatory 
 matter which without this privilege would be slanderous and 
 actionable.^ But this duty is not to be confined to legal duties 
 which may be enforced by legal process, but must include moral 
 
 ^ Carrol v. Bird, 3 Esp. 201. 
 
 ^ A canon propounded by counsel during argument and adopted by Lord Campbell 
 in Harrison v. Sush, 5 E. & Bl. 344, 348. 
 
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 ftile 
 
852 MASTER AND SERVANT. [pakt y. 
 
 Ground of and social duties of imperfect obligation.' Indeed, this priyilege 
 privi ege. -^ ^j^^ matter of servants' characters arises from the duty (moral 
 and not legal), which is cast by the requirements of society on the 
 master, of stating fully and fairly the truth about his servant 
 whether in his favour or against him, and because masters should 
 be as fully protected as possible if they honestly discharge their 
 duty in speaking of the characters of those who have quitted their 
 service, and acquainting those with the truth who are about to 
 take them into their homes and service. "It is of importance to- 
 the public that characters should be readily given. The servant 
 who applies for the character, and the person who is to take him, 
 are equally benefited. Indeed, there is no class to whom it is of 
 so much importance that characters should be freely given as 
 honest servants. It is for that object that communications are 
 protected." ^ Again : " In general, an action lies for the malicious 
 publication of statements which are false in fact, and injurious to 
 the character of another (within the well-known limits as to verbal 
 slander), and the law considers such publication as malicious 
 unless it is fairly made by a person in the discharge of some 
 public or private duty, whether legal or moral, or in the conduct 
 of his own affairs in matters where his interest is concerned. In 
 such cases the occasion prevents the inference of malice which the 
 law draws from unauthorized communications, and affords a quali- 
 fied defence depending upon the absence of actual malice. If 
 fairly warranted by any reasonable occasion or exigency, and 
 honestly made, such communications are protected for the common 
 convenience and welfare of society, and the law has not restricted 
 the right to make them within any narrow limits." ' 
 Duty of master The employers, then, of domestic servants have a duty cast upon 
 truth fairly them to state fairly and honestly what they know of them when 
 and honestly, applied to by those who may be about to take them into their 
 homes ; and those who are about to employ them have a corre- 
 sponding interest in knowing the truth concerning them, so that' 
 they may be rightly informed as to those who are coming to form 
 part of their domestic household. Masters and mistresses should 
 be freely, unreservedly, and truthfully outspoken as to their 
 opinion of those servants who have left their service ; not keeping 
 back that which is unfavourable to them, nor wilfully speaking ill 
 of them, nor recklessly exaggerating their faults and shortcomings. . 
 For while the law in the interests of society holds the communica- 
 tion of the character of a servant privileged, yet a deliberately 
 
 ' Per Lord Campbell in Harrison v. Bush, 5 E. & Bl. 344. 
 2 Per AVightman, J., iu Gardner v.Slade, 18 L. J. Q. B. 334. 
 ^ Per Paike, B., in Toogood v. Spyring, 3 L J. Ex. 347. This has been approved 
 of in Whiteley v. Adams, 33 L. J. C. P. 89 ; and Cowles v. Potts, 34 L. J. Q. B. 247, 
 
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CHAP. VI.] THE SERVANT'S CHARACTER. 853 
 
 stated falsehood would be evidence of malice, and would tend to 
 deprive the communication of its privilege.' 
 
 The master is in duty bound not only to state what he knows Facts learnt 
 ofthe servant at the time of his discharge, but if he knows of any rfse™?*'"^^ 
 circumstance subsequently happening, of which the inquirer is should be 
 entitled to be informed, also to tell him further what he conscien- 
 tiously believes to be the case ; ^ therefore, if a good character is at 
 first given, and the master subsequently find out matters unfavour- 
 able to the servant, it is his duty to communicate his discovery to 
 the person to whom the character has been given. This point was 
 decided in the case of Child v. Affleck; " there the defendant with 
 whom the plaintiff had lived as servant, in answer to inquiries 
 respecting her character, wrote a letter imputing misconduct 
 whilst in her service, aTid after she had left it ; the defendant also 
 made similar parol statements to persons that had recommended 
 the plaintiff to her. It was held that neither the letter itself nor 
 the parol statements proved malice, and that consequently the 
 letter was a privileged communication, and the plaintiff not en- 
 titled to recover. 
 
 The privilege is not taken away even where the former master Former master 
 courts inquiries to be made by the new master. Thus, in Gardner qu^^ea to' be 
 V. Slade,* the plaintiff, a domestic servant, about to enter the made by new 
 
 ' ^ 1 c -\ • ^ master: privi- 
 
 service of Mrs. M., referred Mrs. M. to the defendant, m whose lege, 
 service she had been. The defendant being then unwell, her 
 husband answered the application, and gave the plaintiff a good 
 character; and Mrs. M. took the plaintiff into her service. The 
 defendant subsequently recovered, and, in a letter written to Mrs. 
 M. on other matters, said that she (the defendant) had been 
 much imposed upon in her kitchen. Mrs. M. in consequence made 
 further inquiries of the defendant as to the plaintiff's character ; 
 and the defendant in answer spoke the words complained of, 
 namely, that she suspected the plaintiff of dishonesty. The jury 
 found the defendant intended by her letter to induce Mrs. M. to 
 make inquiries as to the plaintiff, and found for the plaintiff, 
 subject to leave to move for a non-suit. The Court subsequently 
 made the rule for a non-suit absolute ; Lord Denman, C. J., 
 saying : * "I think the privilege which protects a master in 
 giving a character lasts as long as anything is discovered, before 
 unknown to the master ; as, for instance, if I give a good character 
 to a servant, and next day discover the servant is dishonest, surely 
 in such a case it becomes my duty to communicate my discovery 
 to the person to whom I have given the character." 
 
 ^ Post, p. 856. ., ^ O V 
 
 2 Per Kelly, C.B., in Jones v. JDuhe of Westminster (Time?, April 26, 1879). 
 ■> 9 B. & C. 403. M Ubi sup. ). 5 13 Q. B. 799. 
 
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854 MASTER AND SERVANT. [paet y. 
 
 Former master So, where a master writes a letter to the former master of tlie 
 muuicated™' Servant on whose recommendation he had taken him, to the effect 
 ■^'*- that his conduct had not justified the character given of him, it is 
 
 a privileged communication.' This privilege is based upon the 
 propriety of warning the former master that the character origin- 
 ally given by him to the servant is no longer deserved. So, too, 
 if a servant, knowing the character which his master will give of 
 him, procures a letter to be written, not with a fair view of 
 inquiring the character, but to procure an answer upon which to 
 ground an action for a libel, no action can be maintained.^ 
 Where malice Where the Servant can establish the malice of the master in 
 privilege dis- ' making the communication of which he complains, then the privi- 
 appears. \ege is taken away ; for the master is found to have acted no 
 
 longer in the proper and honest discharge of the moral duty 
 cast upon him, but has deliberately and intentionally devised 
 a wrong to another person, for which he should be justly held 
 Officious responsible. Thus, where a master officiously volunteers to inform 
 
 maste^may be ^ psrson into whose Service he hears that a discharged servant of 
 proof of ex- j^jg {g about to enter as to that servant's unfitness, it may be used 
 
 press malice. ... . 
 
 against him as evidence of express malice towards the servant ; ' 
 for " upon the question whether a man who has written a libel 
 injuring the character of a servant has acted bond fide or not, it 
 makes a very material difference whether he volunteered to give 
 the character, or had been called upon so to do. At all events, 
 when he volunteers to give the character,' stronger evidence will 
 be required that he acted ho7id ivde than in the case where he has 
 given the character after being required so to do." ^ 
 Express There is an important distinction in their legal effect between 
 
 malice and not j-^^-ii ^ ^ , i- 
 
 mere malice in words prima jocu sianderous spoken by a master oi a servant, 
 moved'ae-atast ^^^ ^'^^^ words spoken by one person of another not in that 
 the master. relationship. In the latter case malice in law which will ground 
 Malice in law. an action is all that need be proved. " Malice in common 
 acceptation means ill-will against a person, but in its legal sense 
 it means a wrongful act done intentionally, without just cause or 
 excuse. ... If I traduce a man, whether I know him or not, and 
 whether I intend to do him an injury or not, I apprehend the 
 law considers it as done of malice, because it is wrongful and 
 intentional." ^ But where an action for slander is brought on 
 a communication of a servant's character, it is not to be con- 
 sidered as an action in the common way for defamation by words, 
 
 •^ See Dixon v. Parsons, i F. & F. 24. 
 
 ^ Per Lord Alvanley m King v. Waring, 5 Esp. 15. See Weatherston v, Haw- 
 kins, I T. R. no. 
 
 ^ Fattison v. Jones, 8 B. & C. 578. 
 
 * Per Littledale, 3., ixi Fattison v. Jones, p. 585. 
 
 ■' Per Bayley, J., in Bromage v. Frosser, 4 B. & 0. 247, 255. 
 
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CHAP. VI.] THE SERVANT'S CHARACTEE. 855 
 
 but that the gist of it must be malice, which is not implied from 
 the occasion of speaking, but should be directly proved ;^ and 
 no action lies for giving the true character of a servant, upon 
 application made to his former master, to inquire into his 
 character, with a view of hiring him, unless there should be 
 extraordinary cirourtistanccs of express malice? This privilege, 
 as before seen, is not confined to communications made on 
 application, but even where they are volunteered, if not found to 
 be malicious.^ Communications, therefore, as to the character of 
 a servant will be deemed primd facie to be true, and not action- 
 able, biit privileged, and the onus of proving malice is cast upon onus of proof 
 the plaintiff, and before the question of malice can be submitted thepiaintiff. 
 to the jury, the evidence must raise a probability of malice, and 
 be more consistent with its existence than its non-existence.* 
 Indeed, the protection of the master (for the benefit of society) Evidence of 
 is carried a long way, and before the privilege of the communi- ^e^dea™* 
 cation is taken away, clear proof of malice must be forthcoming. 
 It is the existence of the moral duty (before alluded to) cast 
 upon the master, that makes his communication privileged ; thus, 
 where a master had dismissed a servant on a charge of theft, and 
 warned his other servants against associating with him, and 
 informed them of the reasons for dismissing him, his communi- 
 cation was deemed privileged." A servant cannot maintain and mere proof 
 an action against his former master for words spoken or a letter °f ^^^^ charge^^ 
 written by him in giving a character of the servant, unless the insufficient, 
 latter prove the malice as well as the falsehood of the charge, 
 even though the master make specific charges of fraud against 
 him.^ Thus, though the statement should be untrue in fact, 
 the master will be held justified by the occasion in making that 
 statement, unless it can be shown to have proceeded from a 
 malicious mind.' 
 
 Where defamatory words (such, for instance, as impute fraud to Privilege not 
 a servant) are primd facie privileged, as being spoken with honesty becausTde- 
 of purpose, and to a person interested in the inquiry, the mere fact ^^^g^^'^^^gj^ 
 that they are spoken in the presence of a third person does not of in the presence 
 necessity take away the privilege;^ so, where a master discharged "gted thi?d 
 his footman and cook, and they asked him his reason for dismissing persoii- 
 them, and he told the footman in the absence of the cook that he 
 charged him with robbing him along with the cook, and told the 
 
 I Per Lord Mansfield \n Edmondson v. Stevenson et uxor, cited Bull. N. P. 8. 
 
 ' Per Lord Mansfield in Har grave v. Le Breton, 4 Burr. 2423, 2425. 
 
 ' See Whiteley v. Adams, 33 L. J. C. P. 89. 
 
 * Somercille v. Hawldns, 20 L. J. 0. P. 131. lo'^o,. 
 
 " Weatherston v. Eawhins (ubi sup.). 
 
 ' Per Lord Denman, C. J., in Fountain v. Boodle, 3 Q. B. 5, 12. 
 
 8 Toogood V. Spyring, 3 L. J. Ex. 347 ; Taylor v. Hawkins, 20 L. J. Q. B, 313. 
 
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856 
 
 MASTER AND SERVANT. 
 
 [PAET V. 
 
 How malice 
 established. 
 
 Master volun- 
 teering infor- 
 mation. 
 
 cook in the absence of the footman that he charged her with 
 robbing him along with the footman ; these communications were 
 held privileged, both as regards the absent parties as well as those 
 to whom they were respectively made.' But the master must not 
 exceed the occasion;^ and if he should deliberately seek an oppor- 
 tunity of making such communication before a third person, 
 which might have been made in private, it is evidence of malice 
 which may displace the privilege.' 
 
 Malice may be established by various proofs ; one may be that 
 the statement is false to the knowledge of the party making it. In 
 the majority of the cases in which servants have maintained actions 
 against their masters for defamation of character, express malice 
 has been substantiated by proof of the falseness of the communi- 
 cation being known to the masters. The master or mistress must 
 believe the communication to be true. To entitle matters otherwise 
 libellous to the protection which attaches to communications made 
 in the fulfilment of a duty, hona fides, or, to use our own equivalent, 
 honesty of purpose, is essential ; and to this again two things are 
 necessary : (i) that the communication be made not only in the 
 course of duty, that is, on an occasion which would justify the 
 making it, but also from a sense of duty ; (2) that it be made with a 
 belief of its truth.** Malice may also be shown by evidence of the 
 communication not being made hond fide by the master. The 
 following cases are a few instances of the above propositions. 
 
 A person applied to a master for the character of his servant 
 the master gave the servant a bad character, the truth of which 
 he was unable to prove ; he also officiously stated to a former 
 master a trivial act of misconduct on the part of the servant, in 
 order to prevent him giving a second character. Malice on the 
 part of the master was held to be rightly inferred.* A master 
 liaving discharged his servant, and hearing that he was about to 
 be engaged by another person, wrote a letter to him, and informed 
 him that he had discharged him for misconduct ; the person com- 
 municated with in answer desired further information ; the master 
 then wrote a second letter, stating the grounds on which he had 
 discharged the servant, in an action for libel on the second letter 
 the jury found that it was not communicated hondfide, and found 
 a verdict for the servant. The Court refused to disturb the ver- 
 dict,° A master in giving the character of his late servant to a 
 person intending to take her, charged her with theft; and in 
 support of the charge stated that she had borrowed money when 
 
 1 Maiiby v. Witt, Eastmead v. Witt, 25 L. J. C. P. 294. 
 
 ^ See Jones v. Thomas, 53 L. T. 678. ^ Toogood y. Spyring, 3 L. J. Ex. 347. 
 
 '' Per Cockburn, C. J., in Damleins v. Lord Paulet, L. E. 5 Q. B. 102. 
 
 is Mogers v. Clifton, 3 B. & P. 587. " Pattison v. Jones, 8 B. & C. 578. 
 
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CHAP. vi.J THE SERVANT'S CHAKACTElt. 857 
 
 she came into his service, and repaid it before she received any 
 wages. In reply to an inquiry made afterwards by a relation of 
 the servant, he admitted that the time when he paid the wages 
 was entered in a book, which he produced, but refused to state 
 what the time was ; ' and on the same party remonstrating, and 
 observing that the servant in consequence of her loss of character 
 might have gone upon the town, he answered, " What is that to 
 us ? " It was held that this conduct was evidence to go to the 
 jury (though slight) that the communication to the intended 
 master was made maliciously.' The plaintiff having been em- 
 ployed by the defendant as governess to her children for upwards 
 of a year, during which the defendant twice recommended her to 
 other similar situations, was dismissed iu an abrupt manner with- 
 out cause assigned, and lost a new engagement in consequence of 
 the defendant giving the following answer to an inquiry respecting 
 her qualifications : " I parted with her on account of her incompe- 
 tency and not being ladylike nor good-tempered;" to which a 
 postscript was added, " May I trouble you to tell her that this 
 is the third time I have been referred to. I beg to decline 
 any more applications." The plaintiff gave general evidence of 
 her competency, ladylike manners, and good temper. The previous 
 applications referred to in the postscript were on the occasions on 
 which the defendant had recommended the plaintiff to other 
 situations. No evidence icas given for the defendant. The judge at 
 the trial directed that the communication was privileged, unless 
 there was direct evidence that it was influenced by some malicious 
 feeling; but that, if a primd facie case of intentional falsehood 
 had been made out, the defendant ought to have shown, and could 
 not under the circumstances have had much difficulty in showing, 
 the assertion to have been made under a belief of its truth ; 
 and that the question was whether, looking at the whole case, 
 there was sufficient proof that the defendant had been influenced 
 by an improper feeling. It was held that the direction was right, 
 and that there was evidence of malice for the jury.'' 
 
 If a married woman slander or libel a servant by knowingly giving 
 him an untrue and defamatory character, she will, notwithstanding 
 modem legislation, render her husband liablewith herself to an action 
 for damages at the election of the plaintiff; she binds him as his 
 agent, though he may be totally ignorant of the transaction ; and the 
 
 ^ Kelly V. Partington, 4 B. & Ad. 700. . j ■ 
 
 " Fountain v. Boodh, 3 Q. B. 5. In an action for an alleged libel, contamed m an 
 answer to inquiries respecting the character of a servant, the plaintiflf establishes a case 
 to go to the i ary, if there is any evidence, as a matter of fact, that the answer complained 
 of was untrue to the defendant's knowledge, or as to matters of opinion, that the de- 
 fendant in giving the character did not really act on the opinion which he proteases to 
 have entertained. 
 
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858 MASTER AND SERVANT. [part v. 
 
 Married Woman's Property Act, 1882, has not in this particular 
 taken away his liability.' 
 Giving a false If a master knowingly give a false character of a servant to 
 actionable, if another who is about to hire him, and the servant afterwards rob 
 amage ensue, qj, otherwise injure his new employer, an action for deceit lies 
 against the master.^ But a false character hond fide believed to be 
 true would not subject the giver to an action.^ The giving of false 
 and fictitious characters has also been made a criminal offence; 
 Also punish- thus, if any person personate a master or mistress, or knowingly 
 impri'son''raBnT S^^® ^ false, forged, or counterfeited character, he is liable on con- 
 viction to forfeit a penalty of ;^20, or in default of payment may be 
 committed to prison with hard labour for a period not exceeding 
 three months.* 
 Uttering It is an indictable offence at commoa law to utter a forged 
 
 moniais with documcnt with intent to deceive, the forging of which is an offence 
 intent to ^^ common law, and a testimonial to character is such a document.' 
 
 deceive indict- ' 
 
 1 Herolia v. Kattenherg, 17 Q. B. D. 117. 
 
 2 See Wilkin v. Beed, 15 C. B. 192. 
 ^ See Evans v. Collins, 5 Q. B. 805 ; Thorn v. Bigland, 8 Exch. 731 ; 9 Exch. 
 
 426 n. 
 
 * 32 Geo. III. 0. 56, ss. I and 6. 
 
 ^ Eeg. V. S/iarmmi, 25 L. J. M. C. 51 ; Meg. v. MoaJi, 27 L. J. M. C. 204. 
 
 able. 
 
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CHAPTER VII. 
 
 EIGHTS AND DUTIES OF MASTER AND SERVANT. 
 
 Duties of Sbbvant — page 
 
 To Fulfil his Engagement 860 
 
 To Obey all Lawful Oedbes 860 
 
 Eights op Master — 
 
 None to Chastise Servant 860 
 
 Earnings op Servant .861 
 
 Action foe Enticing away a Servant ... 861 
 Action for Injuries Inflicted on Servant . . 862 
 Duties of Master- 
 To Receive Servant into Employment . . . 862 
 
 To Protect Servant 862 
 
 To Pay Agreed Wages 863 
 
 NoN - Application op Truck Act to Domestic 
 
 Servants 864 
 
 Peiohity op Servants' Wages in the Bankruptcy 
 
 of Master 864 
 
 Forfeiture op Current Wages on Dismissal . 865 
 
 Board Wages 865 
 
 Eecovbet of Wages 866 
 
 To Supply Servant with Food, etc 866 
 
 To Indemnify Seevant in Respect of Obedience to 
 
 Lawful Orders 868 
 
 Liability op Mastee foe Injuries Received by Seevant 
 
 in his Seevicb 869 
 
 None in Respect of Injueies Inflicted by Fbllow- 
 
 Seevant in Oedinaey Discharge op Duty . . 869 
 
 What is Common Employment 870 
 
 What is not 870 
 
 None where Competent Fellow-Servants are 
 
 Engaged 871 
 
 Volenti non fit Injuria 871 
 
 None where Servant not Bound to Obey . . . 871 
 
 Contributory Negligence 872 
 
 None where Person Injured is a Volunteer . . 872 
 Where Master Personally and Negligently Intbe- 
 
 PERES IN THE SEEVANT'S WOEK . . . • 873 
 
 Wheee Appliances fob Woek or Premises aeb out 
 
 OP Repair ^73 
 
 Where Young Servants aee Directed to Obey 
 
 Orders of Superior Servant 873 
 
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860 
 
 MASTEE AND SERVANT. 
 
 [part v. 
 
 Duties of ser- 
 vants—to fulfil 
 bis engage- 
 insnt ; 
 
 to be bonest, 
 respectful, and 
 diligent ; 
 
 to take due 
 care of 
 mister's pro- 
 perty ; 
 
 to obey all 
 lawful orders. 
 
 Eights of the 
 master. 
 
 None right to 
 chastise ser- 
 vant. 
 
 Whbee Servant not Acting in his Seevicb is 
 
 Injured by Fbllow-Seevant 873 
 
 Wheeb Master is Negligent in Selecting Servants 874 
 Eights of Servant's Personal Representative under 
 
 Lord Campbell's Act 874 
 
 This chapter is concerned with the mutual rights and duties of 
 Master and Servant. The right of the one implies a corresponding 
 duty upon the other. When a servant engages with a master to 
 enter his service, it is the servant's duty to enter upon and fulfil 
 his engagement. If he does not fulfil his part of the bargain, he 
 is liable to be sued for the breach, although in the case of domestic 
 servants it would be nearly always futile and unwise to pursue the 
 remedies provided by the law. The further duties of a servant to 
 his master during the service, so far as a domestic servant is con- 
 cerned, are — to be honest, respectful, and diligent ; ^ to evince due 
 and proper care of his master's property, and so he will be rendered 
 liable for gross negligence,^ and for fraud, or misfeasance ; '' and 
 to obey all lawful orders.'' The orders must be lawful, and within 
 the scope of the servant's employment. A domestic servant need 
 not obey an order which is attended with a risk,' or which would 
 necessitate his performing a task which he did not engage himself 
 to do ; a lady's maid, for instance, would not be obliged to milk the 
 cows. If the order be lawful, though harsh, the servant must obey 
 it, and where a maid-servant insisted, contrary to her master's 
 orders, upon visiting her dying mother, and was dismissed, she was 
 held to be properly dismissed because of her disobedience.^ The 
 master has the right to expect, if not extraordinary diligence and 
 care on the part of the servant, yet that he shall not persistently 
 neglect his duty,' and disobey his orders.^ 
 
 If a master has to make good any loss or damage caused to 
 third persons by reason of his servant's negligence or misconduct, 
 such loss or damage can be recovered from him,^ that is, in law, if 
 not in fact. 
 
 A master nowadays has no right to chastise his servants if of 
 full age for dereliction of duty, whatever may have been his rights 
 in former times. He may moderately punish an apprentice if under 
 age, and perhaps a domestic servant, if of tender age. If he exceed 
 the bounds of moderation in the correction, and the death of the 
 
 ^ Limland v. Stephens, 3 Ksp. 269. 
 ^ See Countess of Salop v. Orompton, Cro. Eliz. 777. 
 2 Turner v. Eohiiison, 5 B. & Ad. 789. Bao. Abr. Mast. & Serv. M. 
 * Turner v. Mason, 14 L. J. Ex. 31 t ; Spain v. Arnoti, 2 Stark. 256. 
 ° See Tamer v. Mason (uhi sup.) ; Woodley v. Metropolitan District Railway Coy. , 
 2 Ex. D. 384. 
 
 " Turner v. Mason (uhi sap.'). ' Pritchard v. Hitchcock, 6 M. & G. 165. 
 
 >* Fillieul V. Armstrong, 7 Ad. & E!. 557. ^ Pritchard v. Hitchcock l^uU snp.). 
 
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CHAP. VII.] DUTIES OF MASTER AND SERVANT. 861 
 
 servant ensues, it is certainly manslaughter, and may be murder.' 
 In these days, when corporal punishment is viewed with disfavour, 
 and convictions are a frequent result of charges of assault, and 
 heavy damages are given in civil suits, a master would be wise who 
 refrained from lifting his hand against even a young servant, except 
 perhaps it be for an offence which would be better punished by a 
 whipping at home than by exposure and disgrace in a public Court. 
 If a servant be incorrigible, let him be discharged. 
 
 It is quite clear that a master is entitled to the earnings of his Master eu- 
 apprentice, and though there is no direct authoritv on the noint •*'^®* ',° ''*™" 
 
 IT i 1 .IT J^ ' mge of ser- 
 
 he would seem to be equally entitled to the earnings of his domestic '^'^^^• 
 servant, so long as he remains with and works for him.^ Quicquid 
 cwguiritur servo acqviritur domino. This is not a very important 
 point as regards the class of servants under discussion, because, 
 from the nature of their employment, their services would not be 
 likely to be let out, but the claim of the master would seem to be 
 rightJy based, for as the servant hires himself to do exclusively the 
 work of his master, who in his turn is liable to pay him wages, if 
 he works for and earns reward from another, whether with or 
 without his master's permission, the master would be entitled to his 
 earnings, and could recover them from the servant in either case, 
 but from a third person only where permission was given, for then 
 the servant would have been his agent.' The permission of his 
 master for the servant to work for another would not be of itself a 
 waiver of his right to his earnings. If a servant were hired to do 
 a particular thing, the result of his work would belong to his 
 master.^ 
 
 As the master, then, has the right to the work, services, and Action for 
 earnings of his servant, if any one deprives him against his will of a°s*erTantt^*^ 
 those services, by enticing or taking away the servant, an action 
 at his instance will clearly lie ;" also for detaining the servant 
 
 ' I Hale, 473 ; and see Meg. v. Leggett, 8 C. & P. igi. 
 
 ^ See Bexv. Wantage, i East, 6oi ; Co. Lift. 117 as. 
 
 ' But this maxim has very little application nowadays even in the use of appren- 
 tices, and still less in that of mere domestic servants. Mr. Lloyd, in his note to JPaley 
 on Agency, in discussing the question whether a .master might hring an action for the 
 recovery of his servant's earnings, says : " The question would be : ist. Was the 
 transfer of service originally made with the master's assent? If not, it seems clear 
 that the master might, by subsequently adopting the act, maintain an action for work 
 and labour done by his servant. If yes, there is then the further question. Whether 
 the servant in that particular employment was to be considered as the servant of this 
 original master, or that of the person immediately employing him ; and it is submitted 
 that if the master were liable for wages to the servant during the period of the sub- 
 stituted employment, the inference would arise that he still considered the servant as 
 his own, and did not inlend to waive the benefit of his earnings. But if by previous 
 agreement he were released from a proportionate amount of wages, then the contrary 
 conclusion would be the more reasonable. If the payment had been made to the 
 servant in ignorance that he was the servant of another, probably in that case the 
 employer would be discharged." (Third edit. 339.) See Story (Agency, sect. 421), 
 who approves of the above note. 
 
 ^ Makepeace v. Jaclcson, 4 Taunt. 770. '^ Lumley v. Oye, 32 L. J. Q. B. 463. 
 
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862 
 
 MASTER AND SERVANT. 
 
 [part v. 
 
 Rights of ser- 
 vants and 
 duties of 
 masters. 
 
 after notice of the prior contract of service;' and the strict rela- 
 tion of master and servant need not exist,^ and it is not actionable 
 to induce a servant to leave his master's service at the expiration 
 of the time for which he was hired, though the servant otherwise 
 had no intention of leaving his master's service.^ 
 
 A cognate subject to this is the action for the seduction of a 
 daughter ; but as the relationship of master and servant is in most 
 cases a fiction, and is in reality that of parent and child, the dis- 
 cussion will be found under that head.^ It may, however, be here 
 stated that a master may maintain an action for debauching his 
 servant, though he is in no way related to her in blood.' A master 
 Action for in- may also recover damages from a wrong-doer for injuries inflicted 
 on sOTlaut"'^* by him on his servant,^ and this action is based, like the last, on 
 the loss of services : but it has been held that this right of action 
 does not exist for injuries inflicted by the person with whom the 
 servant had contracted in the course of the fulfilment of the 
 contract.' If the servant die from the injuries he has received, 
 the master cannot maintain his action for damages.' Medical 
 expenses form an item of damages.^ 
 
 As it is the duty of a servant who has engaged himself in a 
 binding contract of service, to enter and fulfil his part of the 
 agreement, so is it the master's correlative duty to receive the 
 to receive ' servant into his service, and if he refuse to do so, except for some 
 emXy'-"''° such good reason as the servant's misconduct, incompetency, or 
 inability to perform his part of the contract, the servant may 
 maintain an action against him for breach of the contract.'" On 
 the authority of Hochster v. De la Tour^^ a servant may bring such 
 action even before the date assigned for the beginning of the 
 service, if the master aunounce his intention not to receive him 
 into his employ. Not only must the master receive the servant 
 into his service, but must keep him there during the specified 
 period, and if he dismiss him within that time, except on justifiable 
 grounds, he does so at his peril. 
 
 There is also a duty on the master to protect the servant, and if 
 he fails in that duty the Court may remove the servant from his 
 control ; thus, if a master or mistress has caused or encouraged or 
 favoured the seduction or prostitution of a young servant under 
 
 ' Blake v. Lanyon, 6 T. R. 221 ; De Francesco v. Barnum, 63 L. T. 514. 
 
 ^ Syhes v. Dixon, 9 Ad. & El. 693 ; Lumley v. Gye, 22 L. J. Q. B. 463 ; Evans 
 J). Walton, L. K. 2 0. P. 615 ; Bowen v. Hall, 6 Q. B. D. 333 ; De Francesco v. 
 Barnum (uhi sup.). ^ Nicol v. Martyn, 2 Esp. 734. 
 
 * Ante, Part II. Parent and Child, chap. ii. 
 
 5 Fores v. Wibon, Peake, 55. " Hall v. Hollander, 4 B. & C. 660. 
 
 ' Alton v. Midland Bailioaij Co., 34 L. J. C. P. 292. 
 
 8 O.'ihorn V. Gillett, L. E. 8 Ex. 88. 
 
 ^ Dixon -v. Bell, i Stark. 287. See 49 & 50 Vict. c. 48, s. 6. 
 
 " Bracegirdle v. Ueald, 1 B. & Aid. 722. " 22 L. J. Q. B. 455. 
 
 to protect 
 servant ; 
 
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CHAP. Yii.] DUTIES OF MASTER AND SERVANT. 863 
 
 sixteen, the Court before whom the offence is tried and proved 
 may remove the child out of his or her control.' 
 
 It is the duty of the master to pay the wages he has agreed to to pay agreed 
 give in return for the services rendered. When master and '"*ses. 
 servant have agreed, one to hire and the other to serve, they 
 should be clear and explicit towards each other on the subject of 
 wages ; for by so doing much unpleasantness, and perhaps some 
 litigation, will be saved. It must be borne in mind that service. Payment of 
 however long continued, creates no claim for remuneration without ^^e^s must be 
 
 p , stipulated for. 
 
 a bargam for it, either express or implied from circumstances 
 showing an understanding that there should be payment.^ There 
 may be a valid contract of hire and service without any express 
 or implied promise to pay for the service, for it not infrequently 
 happens that board and lodging alone are the wages of hire ;^ 
 another may be a long-continued service, which would not entitle 
 the person vpho has rendered it to any wages or pecuniary com- 
 pensation in the absence of an express or implied bargain to that 
 effect.* There must be evidence, supported by the circumstances 
 of the services rendered, of a contract, either express or implied, 
 to pay for the services rendered, otherwise there is no duty on 
 the hirer to do so. Where there is an express contract to pay 
 wages, then the matter is clear : but where there is no such direct 
 contract, then the facts of the case must be left to the jury to 
 say whether there has been an implied contract or not to pay 
 wages. There is a marked distinction to be drawn between the 
 case where a person works for a near relative, such as father, 
 mother, brother, grandfather, and the like, and where he works 
 for a stranger; for, unless in the former case there is an express 
 contract for remuneration, no right to be paid will be inferred:'' 
 but where work is done for strangers, much less direct evidence of 
 a contract for remuneration would suffice. 
 
 If from the nature of the circumstances an implied promise can when servant 
 be made out, the servant will be entitled on a quantum meruit to g"^,*;^!™ * 
 a fair remuneration; but it is open to the defendant to rebut »«'-""'- 
 such presumption by producing evidence to the contrary effect, as 
 that the plaintiff cohabited with him and was not his servant," or 
 that the misconduct of the plaintiff rebutted any inference of an 
 implied promise to pay.' A servant can only recover on a promise 
 
 ^ 48 & 49 Vict. c. 69, 8. 12. 
 
 2 Per Martin, B., in Reeve v. Beeve, i F. & F. 280. 
 
 ^ iJeo; V. /SAin/ieW, 14 East, 541. ,, __ ,,, , „.^ . 
 
 * Smith, M. & S. 192; Foord v. Morley, i F. & F. 496; Alfred v. Fitzjames, 
 3 Esp. 3 ; Eulse v. Euhe, 25 L. J. C. P. I77- ,t , i,, » o , 1 
 
 5 Wood, Law of Master and Sei-vant, pp. 115, 121 ; Maod. M. & b. 14S ; ana ^ee 
 Dames v. bavien, 9 0. &. P. 87. 
 
 ^ Bradshaw v. Hayward, Carr. & M. 591. 
 
 ' Monkman v. Sliepherd-ion, 11 A. and E. 411. 
 
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864 
 
 MASTER AND SERVANT. 
 
 [PAET V. 
 
 Servant cannot 
 claim addi- 
 tional wages 
 for additional 
 services. 
 
 Truck Act 
 does not apply 
 to domestic 
 servants. 
 
 When wages 
 presumed to 
 have been 
 paid. 
 
 Priority of 
 servants' 
 wages on the 
 bankruptcy 
 of master. 
 
 What wages 
 are. 
 
 to pay wages ; so, a promise to pay a gratuity, unless stipulated to 
 form a portion of the wages, is no ground of action ; "• but if a 
 gratuity is stipulated for it can be recovered. ^ 
 
 Where there has been a promise to pay an agreed sum, the 
 servant cannot claim additional wages for the rendering of addi- 
 tional services, unless there has b-sen some express or implied 
 contract to that effect ; so, where A. comes as a servant into B.'s 
 household, consisting of seven persons, and B. increases his house- 
 hold to ten, thereby throwing additional work on A., A. in the 
 absence of an agreement to that effect is not entitled to an increase 
 of wages.^ 
 
 The Truck Act,* which prohibited "the payment in certain 
 trades of wages in goods, or otherwise than in the current coin of 
 the realm," does not apply to domestic servants ; and, as a matter 
 of fact, in some poorer households, young domestic servants are 
 paid by being boarded, lodged, and clothed. When a considerable 
 period has elapsed from the date of the wages having become dae 
 to the time when the claim is made, the Courts will presume, as a 
 rule, that all the wages have been paid,' or that the services were 
 rendered on the footing that no payment was to be made.^ Claims 
 for wages are within the Statute of Limitations,' and are barred 
 after a lapse of six years. 
 
 On the bankruptcy of the master, which does not of itself put 
 an end to the contract of hiring and service,^ though it puts an end 
 to the contract of apprenticeship, servants under a binding coij- 
 tract of service," in the employment of the master, are entitled to 
 priority over the other creditors in the payment of their wages due 
 for a period of time not exceeding four months,'" and for an 
 amount not larger than fifty pounds." The creditors, or the official 
 receiver of a bankrupt's property, cannot insist upon the fulfilment 
 of the contract by the servant. '^ 
 
 Wages are a speciiied reward for specified services; and there- 
 fore, if the specified work has been done, the full specified reward 
 or remuneration is due, unless by some arrangement the servant 
 has agreed that some deduction shall be made from the full 
 amount due and payable. Accordingly, a master, in the absence 
 of some special agreement, cannot set off to a claim for wa 
 
 ^ Farher v. Ihbetson, 27 L. J. C. P. 236 ; Lake v. CampleU, 5 L. T. 5S2. 
 
 2 Earl of Mansfield v. Scott, i CI. & P. 319. 
 
 5 Bell v. Drummond, Peake, 45 ; Frazer v. Satton, 26 L. J. C. P. 226. 
 
 ■i I & 2 Wm. IV. c. 37. 6 ijellen v. Norman, 4 C. & P. 80. 
 
 '■ See Gondii v. Findon, 7 Exch. 48 (per Parke, B., p. 50). 
 
 '^ 21 Jao. I. 0. 16. 8 Thomas v. Williams, i A. & E. 685. 
 
 ^ Ex parte Glover, i Mont. & Gr. Dig. Bkpt. Laws, 178. 
 
 1" See Fh parte Fox, Be Smith, 17 Q. B. D. 4. 
 
 " 46 & 47 Vict. 0. 52, s. 40, I (b). 
 
 " See Gibson v. Carntthers, 8 M. & W. 343. 
 
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CHAP. Til.] DUTIES OF MASTER AND SERVANT. 865 
 
 money paid for medical attendance on a servant/ or for advances 
 made by him to a servant under age for the purchase of non- 
 necessaries, nor coach fare paid by him for her mother.^ Nor can 
 he deduct from the servant's wages any loss he may have sustained 
 (as by breakages) through the accident, or even the negligence, of 
 the servant," unless he has expressly so stipulated at the time of 
 the hiring.* If, however, he can prove negligence, in such a case 
 he may either pay the wages in full and sue the servant for the 
 loss ; or leave the servant to sue for the wages, and then in the 
 action counterclaim for the loss.^ The servant is entitled to wages 
 for the period in which he is temporarily ill, though unable to 
 perform his duties, unless the contract of service is rescinded at 
 the time he falls ill.^ 
 
 A servant is entitled to be properly discharged either by due Seiraot 
 notice or payment in lieu of notice, and if he is discharged im- proper 
 properly he is entitled to all wages earned up to the moment of '^"<=''»''S«- 
 his quitting the service, and in addition compensation for the 
 wrongful discharge to the amount of the wages for the period of 
 notice to which he is legally entitled, which in the case of domestic 
 servants is one month. A servant so discharged without notice 
 should sue for damages for breach of contract by the wrongful 
 dismissal, otherwise he could not recover damages, only wages 
 earned and due.' 
 
 A servant who has been properly discharged before the expira- Forfeitnre of 
 tion of the time for which he was engaged, forfeits the wages on^ismisML* 
 he may have earned during the unexpired term. The contract of Contract of 
 service is indivisible, and must be fully completed before the yig^ie/""*'" 
 eervant is entitled to be paid.^ Thus, where a domestic servant 
 is hired, wages are by custom paid monthly ; and the contract 
 may be determined by a month's notice, and if the servant is 
 rightly discharged during a current mouth, he forfeits the wages 
 of that month. So if he discharge himself by leaving without 
 notice, he forfeits his wages for the current period of service,^ and 
 is liable to damages (one month's wages) at the suit of his master. 
 A servant so discharged is, however, entitled to wages which have 
 already accrued due but have not been paid." 
 
 There is considerable misapprehension among many persons on Board wages. . 
 
 ''■ SeUen -v. Norman [uli sup.). 
 
 2 HedgeUy v. Bolt, 4 C. & P. 104. For coach fare, railway fare wonld now be 
 substituted. ' Le Loir v. Bristow, 4 Camp. 134. 
 
 * Cleworth v. Pickford, 7 M. & W. 320, per Lord Abinger. 
 
 " This remedy is available in the County Court as well as the High Court. 
 
 ' Cmkson v. Stones, 28 L. J. Q. B. 25. 
 
 ' Mwings v. IHsdal, 1 Exch. 295 ; Archard v. Hornnr, 3 C. & P. 349. 
 
 ' Spain V. Arnott, 2 Stark. 256 ; and see Bidgway v. The Hungerford Market Co., 
 3 A. &E. 171. 
 
 » See Walsh v. WaUey, L. R. 9 Q. B. 367. ^'' See ante, pp. 836 et seq. 
 
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866 MASTER AND SERVANT. [paet v. 
 
 the subject of board wages. Servants on discharge on the pay- 
 ment of a month'^ wages in lieu of the customary notice, often 
 ask for, and sometimes obtain, a sum which is called "board 
 Servant not wages." This claim is quite unfounded, unless there has been 
 
 eutitled to ° . , i r^ i • n • •. i , , 
 
 them on dis- a special agreement to that effect, which is not very probable.* 
 c arge. Board wages, properly speaking, is a weekly sum which is allowed 
 
 them for their maintenance where the master does not provide 
 for them. In some households masters do not provide food, &c., 
 for their servants, but pay them this weekly sum, called " board 
 wages," for their own convenience, as well as to prevent the 
 servants from dealing on their credit with tradesmen. As above 
 stated, wages are the remuneration for the work and labour sup- 
 plied, and if the servant is discharged with his month's wages in 
 lieu of his notice of a month (during which time he would have 
 had to work unless summarily dismissed), he has got all to which 
 he is entitled. A master is bound to support and provide for a 
 servant only so long as the latter is in his service, and that 
 obligation ceases on the expiry of the service. Again, it may be 
 that the servant obtains a new master the day after he is discharged 
 by the old ; consequently, if board wages are paid him, he will 
 obtain a sum of money which he will never need. 
 Becovery of If the Servant, on leaving his service, has not been paid his 
 
 under ^si in proper wages, the County Court is the fitting tribunal to which 
 amount, to be he should have recourse for their recovery, if they do not exceed 
 
 recovered m . „ . 
 
 County Court. £$0 in amount, ihe consent of parties will give the Court 
 
 jurisdiction over a larger sum. If the servant bring his action in 
 
 the superior Court, and he recover less than ^^20, he is not entitled 
 
 to his costs, unless the judge at the trial specially gives them to him.^ 
 
 The Councils The Councils of Conciliation Act, 1 867,' which was passed to 
 
 Act°°867*does adjust differences between masters and workmen, does not extend 
 
 domestic' *° *° domestic servants, or servants in husbandry.* 
 
 servants. A justice of the peace has no power to hear and determine any 
 
 ^°^'?^°?g™J^' dispute that may arise between master and servant as to the 
 
 tion have no contract of hiring ; for by the Employers and Workmen Act, 
 
 disputesYe'- 1875,° which gives Courts of summary jurisdiction the power as 
 
 and'd'oSesUc Oourts of civil jurisdiction to hear and determine certain dis- 
 
 servant. putss between employers and workmen, domestic servants are 
 
 expressly excluded from its operation. 
 Duty of master The duty of a master to supply his servant with food does not 
 vantmth food, exist at common law, but is the result of a contract, whether 
 of^acontrac"" ©xpress or implied, between the hirer and hired. Tiie breach of 
 
 1 Gordon y. Potter, i F. & F. 644 ; Winstone v. Linn, i B. & C. 460. 
 
 2 30 & 31 Vict. c. 142, s. s ; 45 & 46 Vict. 0. 57, s 4. 
 
 3 30 & 31 Viot. c. 105. 4 Sect. 17. 
 « 38 & 39 Vict. 0. 90, e. 10. 
 
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CHAP. VII.] DUTIES OF MASTER AND SEEVAJSTT. 867 
 
 it formerly was the ground of a civil action only, except in tte 
 case of an infant servant of tender years,^ that is, one under 
 sixteen years of age,^ in which case it was an indictable mis- 
 demeanour.^ Where the master has means of providing food for 
 his servant, being one of tender years," and neglects to do so, and 
 the servant dies of starvation, the master may be indicted for 
 murder, for the law casts a duty upon him of providing food and 
 sustenance for him.' If a master refused to supply food for his 
 apprentice, he could be indicted at common law." To cure the 
 defects of the law the Act of 185 1 ' was passed. This in its turn 
 was repealed but practically re-enacted by the Act of 1861,^ which 
 provided that " whosoever, being legally liable either as a master How duty 
 or a mistress to provide for ... . any servant necessary food, «'if°''ce'i. 
 clothing, or lodging, shall wilfully and without lawful excuse 
 refuse or neglect to provide the same, or shall unlawfully and 
 maliciously do or cause to be done any bodily harm to any 
 such .... servant, so that the life of such servant shall be 
 endangered, or the health of such .... servant shall have been 
 or shall be likely to be permanently injured, shall be guilty of a 
 misdemeanour, and being convicted thereof shall be liable .... 
 to be kept in penal servitude for five years, or be imprisoned for 
 any term not exceeding two years, with or without hard labour."' 
 So also, by a later Act,^ it is provided that "where a master,, 
 being legally liable to provide for his servant or apprentice neces- 
 sary food, clothing, medical aid, or lodging, wilfully and without 
 lawful excuse refuses or neglects to provide the same, whereby 
 the health of the servant or apprentice is or is likely to be seriously 
 or permanently injured, he shall on summary conviction be liable 
 either to pay a penalty not exceeding twenty pounds, or to be 
 imprisoned for a term not exceeding six months, with or without 
 hard labour." 
 
 If a master neglect to supply food, &c., to a servant who is so when master- 
 enfeebled and helpless that he cannot provide for or take care of m^nsUugh'tei-. 
 himself, and is unable to withdraw himself from his master's 
 control, and the death of the servant is attributable to such neglect, 
 the master may be indicted for manslaughter ; but a wife is not 
 equally liable with her husband for these offences, unless she has 
 been supplied with money for the support of the servant, and she 
 has wilfully neglected to afford it." 
 
 ^ Rex V. Bidley, 2 Camp. 650. 
 
 2 Reg. T. Shane et uxor, 33 Sess. Pap. (Cent. Crim. Ct.) 482. 
 
 ' Rex V. Frieiul, R. & R. C. C. 22. * Reg. v. Cliandler, 24 L. J. M. C. 109-.. 
 
 « See Beg. v. Marriott, 8 C. & P. 425. « Reg. v. OmM, i Salk. 381. 
 
 '■ 14 & 15 Vict. c. II. 3 24 & 25 Vict. 0. 100, s. 26. 
 
 » 38 & 39 Vict. c. 86, 8. 6. Bv section II it is proyided that the husbands and 
 •wives of the respective parties to "the contract of service shall bo considered as com- 
 petent witnesses. " Sex v. Saundert, 7 0. & P. 277. 
 
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868 MASTER ANIJ SERVANT. [part v. 
 
 Master not A master is not legally bound to provide medicine for his sick 
 
 vide medicine, Servant/ Or Surgical attendance for one who has met with an 
 vant*"' ^™' accident, though it is otherwise in the case of an apprentice/ In 
 an early case/ it is true that Lord Kenyon held that a master was 
 bound to provide medicine for his servant whilst living under his 
 roof, but that is no loj.ger the law. He is not liable even on an 
 implied contract when a medical man is called in by one of the 
 servants to attend him or her.* But slight evidence is sufficient 
 to fix him with liability ; thus, where a servant became ill in con- 
 sequence of a service away from her master's family, and called in 
 a surgeon, and after that the master sent his own doctor, and his 
 wife knew of the first surgeon's attendance and expressed no dis- 
 approbation, the master was held liable to pay for the attendance 
 of the surgeon called in by the servant.* The servant who is taken 
 ill or injured becomes legally chargeable to the union in which he 
 is stricken down." 
 "Duty of master The master has cast upon him the duty of indemnifying his 
 servant. Servant from the consequences of obeying his lawful orders. The 
 
 principle upon which this duty is cast upon the master is, that a 
 .principal is bound to indemnify his agent who acts on his behalf 
 Orders obeyed and Carries out his otders. It is, of course, a requisite that the 
 ■ orders should be lawful, for if the servant perpetrates even on his 
 master's behalf that which is clearly a crime or a wrong, he does 
 so at his own, risk, and cannot expect to be indemnified, for he 
 ought not to have carried them out, and there is no contribution 
 among tort-feasors. It has been held that where the servant in 
 obeying his master's orders commits a malum, prohibitum, then the 
 master must indemnify the servant ; but where the servant commits 
 a malum in se, of which he was perfectly aware, then there is no 
 obligation on the master to indemnify him. If the above proposi- 
 tion has ever been the law it cannot be deemed to be so now. 
 The true principle would seem to be that if a servant obeying the 
 orders of his master does an unlawful act through ignorance of 
 fact and suffers loss or damage in consequence of such obedience, 
 he is entitled to be indemnified by his master in respect of such 
 loss, for in such a case he could not rightly be held to be a joint 
 tort-feasor. If the servant, as a matter of fact, thought he had a 
 right to do what he was ordered to do, he ought to be held harm- 
 less for the consequences of his obedience. Thus, if A. sell his 
 horse to B. and send his servant 0. (who is ignorant of the sale) 
 
 1 Wennall v. Adney, 3 B. & P. 247. 
 
 2 Reg. V. Smith. 8 C. & P. 153, ' Scarman v. Castell, i Esp. 270. 
 
 * Cooper V. Phillips, 4 C. & P. 581. In this case the surgeon was not the regular 
 ■doolor of the liefendant's family. " Cooper v. Phillips {uhi sup.). 
 
 ' See Wennall v. Adney {uhi sup. ). 
 
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CHAP, vn.] DUTIES OP MASTER AND SERVANT. 8C9 
 
 to get back the horse from B.'s stable, and 0. has it delivered up 
 to him, and the horse is injured on the road and 0. is sued and 
 cast in damages, 0. is entitled to maintain an action for indemnity 
 against A.^ But if the servant act with the full knowledge of the 
 facts and carries out the illegal orders of his master, even though 
 they may not appear to him to be illegal, he cannot maintain an 
 action for indemnity in such a case. It stands to reason that if 
 the servant acting contrary to his master's orders is damnified, he 
 alone must bear the loss ; ''■ for no man should be made liable for 
 the acts of another which he has neither authorized nor adopted. 
 
 It now remains to consider the important question of the Liability of 
 hability of a master to indemnify a servant for the injuries the ™,ri6s receive* 
 latter has received in his service. It must be premised that The Em- ^y servant in 
 
 ,_. . . , -. . , . his service. 
 
 ployers JLiabilityAct, i88o, hasno application to domestic servants. Employers' 
 The main feature of that Act is to deprive the master or employer of isso'does'^no't. 
 the serviceable defence of alleging that the servant injured by another ^pp'? *? 
 of his servants was in one common employment in cases where the servants. 
 injured servant was obeying the orders either of the master or of some 
 responsible person placed in authority by the master or employer.'' 
 But this defence still holds good in the case of domestic servants. 
 
 The principle of the liability and immunity of a master is the Principle of 
 obhgation cast upon him of taking all reasonable precautions to ij^milulty!" 
 secure the safety of his servant ; '^ but at the same time the mere 
 relation of master and servant does not imply a contract on the part 
 of the master to take due and ordinary care not to expose the ser- 
 vant to extraordinary danger and risk in the course of employment.' 
 Under what circumstances the master will be held not liable will first 
 be set forth ; next, under what circumstances his liability "will arise. 
 
 The master is not liable at common law to his servant for injuries immunity of 
 inflicted by fellow-servants in the ordinary discharge of their duty.^ Aspect of 
 A servant, when he engages to serve a master, impliedly under- ^".J^'J™^"'- 
 
 ^ See Adamson v. Jarvis, 4 Bing. 66 ; Betts v. Oiibons, 2 A. & E. 57 ; Biocon v. 
 Fawcus, 30 L. J. Q. B. 137. ^ Orijlls v. Bavies, 2 B. & Ad. 514. 
 
 2 43 & 44 Vict. c. 42. * Sect. 8. ^ Sect. i. 
 
 ' Brydon v. Stewart, 2 Macq. H. L. Cas. 30. 
 
 ' Biley V. Baxendale, 30 L. J. Ex. 87. 
 
 8 Priestley v. Fowler, 3 M. & W. i ; Hutchinson v. Newcastle and Berwick Bail- 
 way, 19 L. J. Ex. 296 ; Wicjmore v. Jay, 19 L. J. Ex. 300. This case is no longer law, 
 exct-pt as to domestic servants. In the case of Priestley v. Fowler, Lord Abinger, C. B. , 
 in his judgment said : " If the master be liable to the servant io this action, the prin- 
 ciple of the liability will be found to carry us to an alarming extent The master, 
 
 for example, would be liable to the servant for the negligence of the chambermaid for 
 putting him into a damp bed ; for that of the upholsterer, fur sending in a crazy bedstead, 
 whereby he was made to fall down while asleep, and injure himself ; for the negligence 
 of the cook in not properly cleaning the copper vessels used in the kitchen ; of the 
 butcher, in supplying the family with meat of a quality injurious to the health ; of the 
 builder, for a defect in the foundation of the house, whereby it fell, and injured hoik 
 
 the master and the servant by the ruins In truth, the mere relation of the master 
 
 and the servant never can imply an obligation on the part of the master to take mora 
 care of the servant than he may reasonably be expected to do of himself." 
 
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 fellow- 
 servants. 
 
870 
 
 MASTER AND SERVANT. 
 
 [part- v. 
 
 What is 
 •common em- 
 ployment. 
 
 What is not 
 common em- 
 ployment. 
 
 takes, as between hiniself and his master, to run all the ordinary- 
 risks o£ the service (including the risk of negligence on the part of 
 a fellow-servant when he is acting in the discharge of his duty) as 
 a servant of him who is the common master of both, and the master 
 is not in general bound to indemnify him against the consequences 
 of injuries sustained in the ordinary discharge of the duties for 
 which he was hired ; that is, if the master provide competent 
 fellow-servants, and means and appliances reasonably proper and 
 adapted to the work in hand.' The test of the liability or non- 
 liability of the master is whether at the time of the injury the 
 servant injured was or was not, so far as the injuring servant was 
 concerned, a stranger to the master, that is, whether the risk he 
 ran was incidental to his employment. Where the servant can be 
 said to have received his injuries at the hands of a fellow-servant, 
 while engaged with that fellow-servant in an employment common to 
 them both on behalf of their master, then the latter is not liable. An 
 upper servant who has the control and ordering of those under him 
 or her is equally a fellow-servant so as to render the master harmless.^ 
 It is not, however, necessary for this purpose that the (servant) 
 causing and the (servant) sustaining the injury should both be 
 engaged in performing the same or similar acts ; ^ so that, provided 
 they are engaged in a common employment and with a common 
 object, that is, with a common master,* they need not be engaged in 
 effecting the same common immediate object, but may be occupied 
 in different departments of duty.' They should, however, contribute 
 directly to the common object of their common employer in^ the 
 business which they have in hand. But it is necessary in each 
 particular case to ascertain whether the servants are fellow- 
 labourers in the same work, because although a servant may be 
 taken to have engaged to encounter all risks which are incident 
 to the service which he undertakes, yet he cannot be expected to 
 anticipate those which may happen to him on occasions foreign to 
 his employment. Where servants, therefore, are engaged in 
 different departments of duty, an injury committed by one servant 
 upon the other, by carelessness or negligence, in the course of his 
 peculiar work, is not within the exception, and the master's liability 
 attaches in that case in the same manner as if the injured servant 
 stood in no such relation to him : " as, for instance, a dairymaid is 
 
 ^ Smith, M. & S. 240 ; Hutchinson v. Newcastle and Berwick Baxlway Co., 19 
 L. J. Ex. 296. 2 gf(, Wilson v. Merry,!,. E. i So. & Div. App. 326. 
 
 ^ Bartomhill Coal Co. v. Meid, 3 Maci[. H. L. Cas. 266 ; per Lord Cranworth, C, 
 p. 295. 
 
 ^ Johnson v. Lindsay, [1891] App. Cas. 371, explaining Lord Cairns' observation 
 in Wilson v. Merry {ubi sup.). 
 
 5 Morgan v. Vale of Neath BaUviay Co., L. B. i Q. B. 149. 
 
 ^ Per Lord Chelmsford in BartonsJnU. Coal Co. v. M'Ouire, 3 Macq. H. L. Cas. 
 300, 307. 
 
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CHAP, vii.l DUTIES OE MASTER AND SERVANT. 871 
 
 bringing home milk from tlie farm, and is carelessly driven over 
 by the coachman ; ^ in this case the servant is substantially a 
 stranger, and is entitled to the privileges of such. " Where the 
 two servants are servants of the same master, and where the 
 service of each will bring them so far to work in the same place 
 and at the same time that the negligence of one in what he is 
 doing as part of the work which he is bound to do may injure the 
 other whilst doing the work which he is bound to do, the master is 
 not liable to the one servant for the negligence of the other." 2 
 The master also is not liable where the injured servant, though in 
 the employ of another master, is his servant, and has received his 
 hurt at the hands of one of his own servants, the two acting 
 together on his behalf in a common employment. But what is 
 actually a common employment must depend upon the proved facts 
 ■of each individual case. 
 
 If a master does his best to obtain competent servants, that is Master not 
 all he is expected to do ; "he is not bound to warrant their com- ^here com- 
 petency : "' and in an action against a master for an injury done petent feiiow- 
 
 r J J D ^ J ./ servants 
 
 by one of the servants to another, the question is not whether the employed; 
 servant was competent, but whether the master did not exercise 
 ■due care in employing him.* 
 
 Where the servant is well acquainted with the use and nature 'roimti mm fit 
 of the instrument or machine which he has to use in his work, and 
 he is injured by it, his master will not be held liable, unless the 
 injury has been caused by the personal negligence of the latter,* or 
 by his breach of a statutory duty." He also will not be liable 
 where the dangerous and risky nature of the employment is well 
 known to the servant.' To entitle the servant to recover he must 
 allege and prove both that his master was negligent, and he 
 himself was ignorant of the risk.' The master is not liable where Where servant 
 the servant is not bound to obey. This is cognate to the preceding "bey. 
 Tules, for a risk accepted deprives the servant of his remedy. A 
 master is not liable to a servant for injuries sustained in the per- 
 formance of orders which he was not bound to obey ; as, for example, 
 a servant is not bound to risk his life or limb in obedience to his 
 master's orders ; and if he does so, he must take the consequences. 
 If an adult female servant, such as a lady's-maid, were ordered to 
 stand outside an upper window and clean it, or to hold a horse, and 
 she were in consequence to sustain an injury, neither she, nor her 
 
 1 See M'Norton v. Caledonian Railway Co., 28 L. T. 376. 
 
 2 Per Brett, L..J.,in Charles v. Taylor, Walker & Co., 3 C. P D 492, 496- 
 ' Tarrant v. Webb, 25 L. J. C. P. 261. Ibid. 
 
 ' Dynen v. Leach, 26 L. J. Ex. 221. 
 
 " See Britton v. Cheat Western Cotton Co., L. B. 7 Ex. 130. 
 
 7 Potts V. PlunJeet, 33 L. T. iii. ^ r, r, 
 
 8 Griffiths y. London & St. Katherine Docls Co., 13 Q.i-.D. 259. 
 
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872 
 
 MASTER AND SERVANT. 
 
 [part V, 
 
 Contributory 
 Degligence of 
 servant. 
 
 "Wien master 
 may be liable. 
 
 Person ininred 
 a volunteer. 
 
 representatives in the case of her death, would be held (it is sub- 
 mitted) capable of maintaining an action for the injury apart from 
 the negligence of her master, for she might be said voluntarily to- 
 have incurred the risk of injury ; ' but the mere fact of undertaking 
 or continuing in a dangerous employment is not conclusive evidence- 
 that the servant voluntarily incurred the risk, and so in the evenfc 
 of injury become disentitled to recover compensation ; " and iJ 
 such pressure is brought to bear upon the servant by the master 
 that he could not be said to be a free agent, then the master would 
 be held liable.^ Where a servant contributes by his own negligenfc 
 conduct to the accident which injures him, and by the exercise of 
 ordinary care and prudence would have escaped any mishap at all,. 
 he is debarred from seeking compensation from his master.^ This- 
 is a principle which is not confined to the relation of master and 
 servant, but is well recognized in other branches of the law. Soy 
 also, if the servant choose to work with an instrument or machinery 
 which he knows to be dangerously imperfect and defective, and i» 
 injured by the defective instrument or machine, the master is not 
 liable, on the principle of the maxim volenti non Jit injuria ; ° for 
 knowing of his risk he elects to abide by it. But it has been held 
 that if the servant discovers the defect and informs his master of 
 it, and the latter induces him to remain at his work by promising 
 to repair the defect, and the servant is injured, he will be entitled 
 to recover, for he might reasonably suppose that the defect would 
 be remedied.'' 
 
 A volunteer, or one who does not stand to the master- in the 
 position of actual servant, who is injured by participating in the 
 work for which he volunteers his services in process of its accom- 
 plishment by the servants of the master, cannot, because he is in. 
 the position of a stranger and not hired servant, stand in any 
 better position than the hired servants whom he was assisting, and 
 so impose a more onerous burden upon the master than he ever 
 undertook to bear.' The volunteer is for the time being acting 
 in the common employment of the master whom he seeks to fix 
 with liability. But where the injured person is not a mere 
 licensee or volunteer, but has an interest in common with the 
 
 1 Thomas v. Quartermaine, t8 Q B. D. 685 ; Tarmouth v. France 19 Q. B. D. 647;. 
 Memheryv. G. W. Mailway Co., l4App. Cas. 179. 
 
 ^ Smith V. Baker, [1891] App. Cas. 325. 
 
 ^ See Thrussellv. jBandyside, 20 Q. B. D. 359. This case goes very far to increase: 
 the master's liability. 
 
 * Senior v. Ward, 28 L. J. Q.B. 139. 
 
 ^ Senior v. Ward {ubi sup.) ; Skipp v. Eastern Counties Railway Co., 23 L. J'.- 
 Ex. 23. 
 
 ^ Holmes v. Clarli, 31 L. J. Ex. 356, affirming 30 L. J. Ex. 135. See Smith Vv 
 Baleer (uhi sup.). 
 
 ' Dec/g V. Midland Eailway Co., 26 L. J. Ex. 171 ; Potter v. Faulkner, 31 
 L. J. Q. 13. 30. 
 
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CHAP, vii.] DUTIES OF MASTER AND SERVANT. 873 
 
 master of the servant, then he will be entitled to compensation for 
 the injuries inflicted on him.^ 
 
 Where the master by advice, or personal presence and inter- Liability of 
 ference, takes part in the work or labour, during the course of ' ^ °'*^''"'- 
 which the servant is injured through the negligent interference of Personal 
 the master, the latter is held liable.'-' So where the master works ormasteT^ 
 with the servant as a fellow-servant, and injures him in the course 
 of the employment by his negligence, he is liable.' 
 
 If a master by his negligence permits his machinery or other Appliances fca- 
 sppliances to be in a state of disrepair and unsafety, and while premises out 
 knowing of its defects orders a servant to use it who has no °* '"'?'''" ^""^ 
 means of knowing of its insecurity, and is injured, the servant 
 can recover compensation.* The same principle would apply to 
 premises which were known to the master to be in a state of 
 disrepair, and a servant in consequence received injuries. But Ignorance of 
 where a domestic or household servant brings an action of negli- their unsafe- 
 gence against his master for personal injuries resulting from the °'*'®" 
 unsafe state of the premises, he must allege not only that the 
 master knew of their unsafe state, but that he himself was ignorant 
 of the danger.^ Where a master hires young servants, and puts Obedience to- 
 them under the orders and superintendence of a superior who superior ser- 
 stands in his place, and by the negligence of such deputy they ■^*°*' 
 are injured, in all probability the master would be held liable. ** 
 Bat the servant who acts as his master's deputy must be placed in 
 such a position of trust and authority as to be fairly considered as 
 his representative in the establishment.' The negligent directions 
 of a mere superior servant resulting in injury, whose lawful orders 
 the inferior servant was bound to obey, will not entitle the latter 
 to compensation as against the master.^ 
 
 Where a servant is acting out of the scope of the employment ^^'7*°'^"°'' 
 or service for which he was hired, and is injured by a fellow- master's eer- 
 servant, he is in the position of a stranger, and so, it may be con- ty feUow-^ 
 tended, entitled to the privileges of a stranger.'' A master is servant. 
 likewise liable for injury done by his servant to the servant of 
 another master (unless there be contributory negligence on his 
 
 1 Wright v. London and North-Western Eailway Co., L. E. lo Q. B. 298; 
 I Q. B. D. 252; Bachelor v. Fortescite, 11 Q. B. I). 474. 
 
 " Roberts v. Smith, 26 L. J. Ex. 319 ; Ormond v. Holland, El. BI. & El. 102. 
 
 2 Ashwarth v. Stanwix, 30 L. J. Q. B. 183. t t t^ 
 
 * Brydon v. Stewart, 2 Macq. H. L. Cas. 30 ; Williams v. Chugh, 27 L. J. Ex. 
 325 ; Murphy v. Phillips, 35 L. T. 477. 
 
 5 Qrimhs V. London and St. Eatherine'g Dock Co., 13 Q. B. D. 259. 
 
 « 0' Byrne V. Burn, 16 Sec. Ser. 1025 (Scotch Eepoits). It is clear that as regards the 
 employed affected by the Employers' Liability Act, 1880, tbe master would be liable ;. 
 but in the case of domestic serTants, the argument by analogy can alone be used, that 
 the orders of the deputy were the orders of the master. 
 
 ' Murphy v. Smith, 12 L. T. 605. « FeVham v. England, L. R. 2 Q. B. 33. 
 
 » Hutchinson v. rork, Newcastle, and Berwick Eailway Co., 19 L. J. Ex. 296. 
 
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874 MASTER AND SERVANT. [paet v. 
 
 part), though both servants may be working at their respective 
 employments on premises in the joint occupation of their masters. 
 The joint occupation of the premises does not make the employ- 
 ment common.^ 
 Master negli- The master is also personally liable if he do not exercise 
 ing servants, reasonable care in selecting his servants." If one incompetent 
 servant injure another, the latter may recover against his master 
 because of his negligence, if brought home to him, and not on 
 the ground of the incompetency of his fellow-servant. If the 
 servant was aware of the incompetency of his fellow-servant, and 
 yet remained on, and was injured by him, he would find it difficult 
 to maintain the action against his master.' 
 Eights of ser- When a servant is killed under circumstances which, if he had 
 representetive Survived, would have entitled him to maintain an action against 
 Camptei™^ the master. Lord Campbell's Act* enables his personal repre- 
 Act. sentative (wife, husband, parent, child, executor, or administrator, 
 
 as the case may be) to bring an action to recover damages within 
 twelve months from his death. 
 
 1 Vose V. Lancashire and Yorhshire Mailmay Co., 27 L. J. Ex. 249. 
 
 ^ Hutchinson v. Fork, Newcastle, and Benoich MaiLway Co., 19 L. J. Ex. 296. 
 
 •'' See Saxtonv. SawJesworth, 26 L. T. 851. * 9 & 10 Vict. c. 93. 
 
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CHAPTER VIII. 
 
 RELATIONS OF MASTER TO THIRD. PERSOISrS CREATED 
 BY ACTS OF THE SERVANT. 
 
 PAGE 
 
 Mastek Liable as Peincipal foe Act op Agent . . 875 
 Liability op Mastbe on Conteact op Seevant : by 
 
 Adoption op Seevant's Conteact .... 876 
 
 By Expeess Authoeity 876 
 
 Br Implied Authoeity . 876 
 
 Non-Liability op Mastee; wheee no Expeess oe 
 
 Implied Authoeity 879 
 
 Authoeity Teeminated with Notice . . . 880 
 
 Authoeity Revoked by Death op Mastee . . 880 
 
 Liability op Mastee poe Toetiods Act op Seevant . 881 
 
 Civil 882 
 
 Seevant must, as a Rule, be undbb his Im- 
 mediate Conteol ... . . 882 
 
 Fbaud 883 
 
 Geneeal Liability op Mastee .... 883 
 Wheee Seevant Acting on his Behalf, and with 
 
 HIS Authoeity 884 
 
 Act op Seevant adopted by him .... 885 
 
 Limits op Liability 885 
 
 Seevant acting Independently op Authoeity 
 
 and Employment op Mastee .... 886 
 
 Summary 888 
 
 Ceiminal ; Act op Seevant Authoeizbd by him . 888 
 Liability op Mastee to Penalties undbe the 
 
 Licensing Acts 889 
 
 Negligence op Mastee Necessaey ..... 889 
 
 Exceptions 889 
 
 In this chapter it is proposed to deal with the relations of the Master liable 
 master towards third persons constituted by the acts of his ser- for^ctTo^* 
 vant. The principle on which a master can be made liable for ^^ent. 
 the acts or conduct of his servant is that which underlies the 
 relations of principal and agent, namely, qui facitper alium facit 
 ^er se. The mere relation of master and servant does not clothe 
 the latter with a capacity to pledge the former's credit against his 
 consent, or even without his knowledge ; and if a servant take up 
 goods on credit without the leave of his master, no liability on 
 
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876 MASTER AND SERVANT. [paet v. 
 
 the transaction attaches to the latter. If a master hold out a 
 servant as his authorized and accredited representative, it is only- 
 right and just that he should accept responsibility for his acts. 
 The master, however, is at times liable even when he cannofc 
 rightly be said to hold out his servant as his agent.' 
 
 The subject-matter of the chapter will be thus divided : 
 
 (i) The liability of the master on contracts entered into hj 
 
 the servant. 
 (2) The liability of the master for the tortious acts of th& 
 
 servant. 
 
 Liability of (i) The liability of- the master on the contracts entered intc 
 
 master on cob- 1 \ i j_ " • ■ j.i 
 
 tracts entered "J the servant may arise m three ways : 
 
 into by ser- , 
 
 vant. a. By adoption by the master of the servant s contracts. 
 
 h. By giving express authority to servant to contract. 
 c. By creating an implied authority to servant to contract. 
 
 By adoption a. If a servant enter into a contract in his master's name, 
 
 contracts!'^ which is adopted .and ratified by the master, the latter will b& 
 
 liable on it ; for omnis ratihahitio retrotrahitur et mandato priori 
 
 ccquiparaiur} It is necessary that the adoption should go to 
 
 the whole of the contract, and not only part of it ; ^ and that 
 
 such contract should have been made expressly by the servant as 
 
 agent.* 
 
 By giving b. Express authority to contract may be given by deed, writ- 
 
 express autho- . T p ,1 n 1 "j.1 /> 7 • T 
 
 rity to servant mg) or word 01 mouth, and may be either 01 a general or speciui 
 
 to contract. nature ; and when of the latter, is confined to a particular instance 
 
 or object. When the authority of the servant to contract is- 
 
 established, the master at once becomes liable.' To bind the 
 
 master the servant must confine himself within the scope of his- 
 
 authority, and not enter into dealings which are beyond it. If 
 
 the terms of the authority are reduced into writiug, but littl& 
 
 difiiculty can arise ag to the ^cope of the servant's powers; but. 
 
 in the ordinary every-day relation of master and domestic servant, 
 
 the terms would never be declared by a deed, and but rarely 
 
 reduced into informal writing, they would be most frequently 
 
 given by word of mouth. The efiect of such orders will be best. 
 
 described in the next section. 
 
 By creating c. Where the authority of a servant to bind his master upon 
 
 authority to Contracts arises merely by implication, the general rule is, that the 
 
 servant to authority of a servant is co-extensive with his usual employment,. 
 
 contract. 
 
 ' See post, p. 881. ^ Story on Agenjcy, s. 239. 
 
 <* See Fert/uson v. Carrington, 9 B. & C. 59 ; Bamazotti v. £owring, 29 L. J. C. P. 30^ 
 
 * RamazoUi v. Bowriny (ubi sup.). 
 
 ^ Langan v. Great Western Railway Co., 30 L. T. 173. 
 
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(CHAP. viii.J EELATIONS OF MASTER TO THIRD PERSONS. 877 
 
 and the scope of his authority is to be measured by the extent of 
 his employment.^ The authority to pledge his credit may be 
 assumed from the conduct of the master. Where a master, by a 
 course of dealing, holds out his servant as his agent, he will 
 become responsible and liable for the acts done within the scope 
 of his authority and agency. Previous dealings with any particular 
 servant are not necessary ; but if his master hold him out as his 
 .agent, and send him into the world as his servant, and he enters 
 into a bargain, the benefit of which accrues to the master, the latter 
 will be deemed to have given that servant an implied authority to 
 «nter into such a bargain, unless the servant shall have represented 
 to the third person that he was contracting in his own name.^ If 
 a master permits a servant to purchase goods for him on credit, 
 and the servant receives money from him to purchase goods of a 
 similar nature, and the servant embezzles the money, but orders 
 the goods, the master will be liable to pay for their price.^ If a 
 servant is commissioned to transact business for his master, but 
 has no particular instructions giveh to him, nor any particular 
 means to carry out his master's orders, he is usually deemed in- 
 vested with the proper powers and appropriate means to carry out 
 the business intrusted to him ; thus, if a servant be sent by his 
 master to purchase goods on his behalf, but is not furnished by 
 him with money, he will in all probability be deemed clothed with 
 an authority to pledge his master's credit.* The liability and non- Where master 
 liability of the master may be thus illustrated : where the servant nabie. 
 is in the habit of buying goods upon credit, and the master is not 
 in the habit of paying ready money for such goods, and the master 
 on a particular occasion furnishes his servant with the money to 
 purchase the goods, and the servant either loses or steals the 
 money, but orders the goods, the master is liable by reason of the 
 previous course of dealing.^ But where the master is in the habit 
 of supplying his servant with the money to pay for the goods he 
 orders, and the servant steals or loses the money, but orders the 
 goods, he is not liable." 
 
 The implied authority to pledge the master's credit is, however, implied autho- 
 
 . n ,1 J.J3JJ. "'y limited to 
 
 limited to the particular business, and cannot be extended to particular 
 oollateral transactions,' or to matters which are clearly outside of *"'8''^^^^- 
 and not incidental to the scope of the servant's employment.^ A 
 
 1 Smith, Merc. Law, 136. ^ SlmeU v. Sampayo, I C. & P. 254. 
 
 2 See Nickson v. Brohan, 10 Mod. 109 ; also Wayland'a Case, 3 balk. 234 ; and 
 Busby V. Scarlett, 5 Bsp. 76. „ ., r^ o t, 
 
 * Tobin T. Crawford, 12 L. -T. Ex. 690; Miller v. HamiUon, 5 C. & P. 433 ; see 
 also/Smii^ V. M'(?Mir«, 3 H. &N. 563. , „ , „ c. c 
 
 =' See Nickson v. Brohan {vhi sup. ) ; Hazard v. TreadweU, 1 btra. 50b. 
 8 See StuhUng v. Reintz, Peake, N. P. 66. , 
 ' Howard v. Chapman, 4 C. & P. 508. 
 
 * Cox V. Midland Counties Bailway Co., 18 L. J. Ex. 65. 
 
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878 MASTER AND SERVANT. [part v. 
 
 servant, acting within the scope of his employment, may be treated 
 as the general agent of his employer for all purposes connected 
 with the employment, and will bind him ; ' that is, where he is 
 put into a position of trust and responsibility, he can, in his repre- 
 sentative capacity, bind his master by orders and directions given 
 by him within the scope of his trust.^ As a result, the servant of 
 a hotse-dealer has been held capable of binding his master by 
 giving a warranty,' though he had received strict orders not to 
 give it, on the ground of an authority of necessity, for without 
 such power he could not carry out the transactions he was employed 
 Servant mnst to negotiate/ But the servant must not exceed his authority, and 
 authraity. ^^^ if ^^ ^oes, his master is not bound by his representation or course 
 of conduct ; * and where a servant's authority is specially limited 
 bj'' his master, his agency is a special one, and only within the limits 
 of such agency will his acts bind his master.^ What is the extent 
 of the servant's authority is in each case a question for the jury.' 
 Liability of If the master holds the servant out as his general agent, he will 
 
 limited by pri- be liable for contracts entered into by the servant within the scope 
 ment*"*°^^' of his employment, though against his orders. His liability cannot 
 be limited or controlled by any private arrangement or agreement 
 between himself and his servant ; and a master was held liable 
 under the following circumstances : He had entered into an agree- 
 ment to allow his groom so much a year for providing shoes and 
 medicine for his horses, but the groom spent the money in other 
 things ; the farrier sent in his bill, and sued him for the amount 
 of his debt. Lord Kenyon held in the case that unless the farrier 
 knew of the agreement, and expressly trusted the groom, the 
 agreement was no defence to the action, for a tradesman has 
 nothing to do with any private agreement between the master and 
 servant.^ It is otherwise where the tradesman or person dealing 
 with the servant is aware of the private arrangement between him 
 and his master, for if he trusts him, he relies on the servant's and 
 not the master's credit.^ 
 
 ' Walker v. Great Western Mailway Co., L. E. 2 Ex. 228 ; Howard x. Sheward, 
 L. E. 2 C. P. 148. 
 
 '' Mickardson v. Cartright, i C. & K. 328; Langan v. Great Western Railucay 
 Co., 30 L. T. 173. In this case a sub-inspector of railway police was held capable of 
 binding his employers for the board, lodging, and necessaries supplied to persons 
 injured by an accident on their line. But in Cox v. Midland Counties Railway Co, 
 (18 L.J, Ex. 65), a stationmaster was held not capable of binding the company in respect 
 of orders given by him to a surgeon to attend injured passengers. The case is, however, 
 irreconcilable with the general principle of the law and the later case, and would doubt- 
 less not now be followed. 
 
 ' Alexander v. Gibson, 2 Camp. 555 ; and see Baldry v. Rates, 52 L. T. 620. 
 
 * Howard v. Sheward (uhi sup.). ^ Helyear v. Hawhe, 5 Esp. 72. 
 
 ^ Ward v. Evans, 2 Lord Raym. 928 ; Waters v. Brogden, i Y. & J. 457. 
 
 ' Reynelly. Lewis, 16 L. J. Ex. 55. 
 
 " Rrecious v. Alel, i Esp. 350; see also Rimell v. Sampayo, i C. & P. 254. 
 
 ' Howard v. Rraithwaite, i V. & B. 209. 
 
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CHAP, viii.] RELATIONS OF MASTER TO THIRD PERSONS. 879 
 
 No liability on the part of the master for the servant's contracts Non-iiabiiifcy 
 exists where he has not given the servant express or implied ^^h^eno^''^'' 
 authority to pledge his credit, or where he has terminated ?^pr?ss or 
 with notice the servant's authority to pledge it. If a master Sy on part 0°/ 
 neither expressly nor impliedly authorizes his servant to pledge ^"'''"''" 
 his credit, he is not liable for any contracts which the servant 
 may make in his name, for liability in such a case would 
 be contrary to all principles of law and justice. Sir William 
 Blackstone ^ says on this point : " If I usually deal with a tradesman 
 by myself, or constantly pay him ready money, I am not answer- 
 able for what my servant takes upon trust ; for here is no implied 
 order to the tradesman to trust my servant." The succeeding 
 cases illustrate the relations of masters to third persons created 
 by the acts of their domestic servants. The defendant contracted 
 with the plaintiff to be served by him with meat at a certain price 
 for ready money ; his cook was accustomed to order the meat, and, 
 when the bill amounted to a few shillings or a guinea, used to pay 
 it, generally on Monday morning, and the defendant always gave 
 her the money to pay ; this course of dealing continued for a long 
 time till the defendant got a cook who embezzled the money, and 
 did not pay the plaintiff's bills ; under these circumstances the 
 defendant was held not liable for their amount.^ A butler ordered 
 brandy in his master's name, which was consumed by him and the 
 cook, without the master being privy to the order, delivery, or 
 consumption, and there was no evidence that the servant had 
 authority to order the goods; the master was held not liable.' 
 The defendant ordered of a tailor two suits of livery a year for 
 her coachman, and the tailor supplied one ; but, at the desire of 
 the coachman, supplied plain clothes instead of the other; she 
 was held only liable for the livery actually supplied, and entitled 
 to set-off against a subsequent account for clothes the price of a 
 suit of livery which had been supplied and paid for, but taken 
 back by the tailor from the coachman.* Again, a servant injured 
 his master's carriage, and without acquainting or waiting for the 
 orders of his master, left it at a coachmaker, a stranger to his 
 master, and the coachmaker refused to give up the carriage without 
 being paid the price of his repairs ; the master was successful in 
 an action for the recovery of the carriage, and the coachmaker 
 was held to have no claim against him for the amount of his bill.* 
 The mere fact of a master's using the goods obtained by the servant 
 
 ' I Com. 430. 
 
 2 Stubbing v. ffeintz, Peake, 66 ; see also Pearce v. Sogers, 3 Esp. 214. 
 
 ^ Maunder v. Conyers, 2 Stark. 281. 
 
 * Hunter v. Dowager- Countess of Berheley, 7 C. & P. 413. 
 
 " Hucox Y. Greenwood, 4 Esp. 1 74. 
 
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880 
 
 MASTER AND SERVANT. 
 
 [PAET V. 
 
 Mere user of 
 goods will 
 not create 
 liability. 
 
 Servant's 
 authority to 
 pledge credit 
 terminated 
 with notice. 
 
 notice must 
 be brought 
 borne to third 
 party. 
 
 Servant's 
 authority re- 
 voked by death 
 of master. 
 
 will not of itself render him liable to pay for them, where the 
 course of dealing by the master did not amount to an authority 
 to the servant to pledge his credit, It is, however, strong primd 
 facie evidence against him, unless he can show that credit was 
 given to the servant, or that the latter received money from him 
 to buy the goods, and so had no authority from him to pledge his 
 credit.' Where a servant is left in charge of children with a 
 sufficient allowance for their support, he has no authority to pledge 
 his master's credit for necessaries or goods supplied for their sup- 
 port.^ Further, a, master is not liable for the contracts of his 
 servants where they have an express authority and exceed their 
 powers ; or where they have an implied authority, and act beyond 
 the scope of their employment.' Neither is he liable when the 
 person transacting business with the servant knows who the 
 master is yet gives credit to the servant.* 
 
 "When the authority of a servant to act as agent for his master 
 ceases, the power to bind the master by his dealings ceases also ; 
 and those who contract with the servant knowing of the cessation 
 and determination of such authority, contract with him on his 
 credit, and at their peril. This proposition holds good not only 
 in such cases where the authority of the servant is express, but 
 where it is implied. If a master has by his acts given his ser- 
 vant implied authority to pledge his credit to a tradesman, and 
 subsequently notifies to that tradesman his revocation of the 
 servant's authority, he will not be held liable for any subsequent 
 credit transactions effected in his name by the servant with the 
 tradesman.^ Notice of the revocation must be brought home 
 personally to the third person ; ^ and mere notice of withdrawal 
 to the servant alone would be insufficient to protect the master.' 
 Constructive notice, however, may be evidenced by such facts as 
 lapse of time, not sending in accounts, from which knowledge of 
 the want of authority on the part of the servant might be inferred.® 
 The discharge of the servant, unless known to the third person, 
 would not seem to be an exoneration of the master ; ' though the 
 lapse of a considerable period from the last order would raise a 
 presumption of discharge.'" The death of a master operates as a 
 revocation of the servant's authority, and any acts of the servant 
 
 ' Pearce v. Sogers, 3 Eep. 214. 
 
 " Per Cockbum, C.J., in Atkyns v. Pearce, 26 L. J. C. P. 252. 
 ^ See Onx v. Midland Counties Bailviay Co., 18 L. J. Ex. 65. 
 * See Thomson v. Davenport, 9 B. & C. 78. 
 ° Chappell V. Bray, 30 L. J. Ex. 24. 
 
 " Oratland v. Freeman, 3 Esp. 85 ; Summers v. Solomon, 7 El. & Bl. 879. 
 ' Trueman v. Loder, 1 1 A. & E. 589. 
 8 Sidvehj v. Uzielli, 2 F. & F. 30. 
 
 ^ Aiion. V. Harrison, 12 Mod. 346 ; Aste v. Montague, i F. & F. 264. 
 '" Stavehj V, Uzielli [uhi sup.). 
 
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CHAP. VIII.] RELATIONS OF MASTER TO THIRD PERSONS. 881 
 
 after the death of the master would not bind the representatives 
 of the latter.' 
 
 (2.) The principle that he who employs another to transact his Liability of 
 business should be affected with responsibility for the acts of his tortiou/acts= 
 agent as though they were his own, renders a master liable for °' servant, 
 the tortious acts of his servant, if done as his servant, and in the 
 course of his employment, or as incidental to his employment ;'^ for 
 a master is bound to indemnify the public against the wrongful 
 or careless acts of himself or his servants ;^ for the master chooses 
 the servant and gives him the order which he is bound to obey.* 
 The relationship of master and servant must be clearly ascertained 
 and proved. 
 
 The principle of the maxim respondeat superior applies to this Ground? for 
 liability of the master ; but there seems to be a double element in Ihe^'mlstBr. 
 this liability. The master is liable not only as principal for the 
 acts of his agent, but even under circumstances in which the 
 servant could in no sense be called his agent, as where the servant 
 was acting contrary to his commands, but was engaged in his 
 service. In such a case his liability, it is suggested, would seem 
 to be based upon the natural justice of the principle, that where 
 one of two innocent persons must sustain a loss, he who enabled 
 the loss to be brought about should be the party to sustain it.' The 
 liability of the master is not confined only to the negligent acts 
 of his servant, but also to his frauds, if committed within the 
 scope of his authority. The principle of his liability has been 
 rested on the ground that the master is answerable for every such 
 wrong of the servant or agent as is committed in the course of 
 the service and for the master's benefit, though no express com- 
 mand or privity of the master be proved." Another ground has 
 been suggested, namely, " that every person who authorizes, 
 another to act for him in the making of any contract, undertakes- 
 for the absence of fraud in the execution of the authority given " '" 
 Knowledge of the servant has been held to be knowledge of the- 
 master so as to bind him.« Yet another ground has been suggested^ 
 namely, the negligence of the master ; in other words, the maste?- 
 has been guilty of a breach of duty towards his neighbour; for it- 
 is the duty of every person in the pursuit of his own affairs to take 
 care that he inflicts no injury upon the persons or property of 
 
 1 See Smout v. Hbery, 12 L. J. Ex. 357. 
 ^ Buddiman v. Smith, 60 L. T. 708. 
 
 ' Michael v. Alestree, 2 Lev. 172 ; Bartonshill Coal Co. f. Beid, 3 Macq. H. L. 
 Cas. 266. ■* The Satley, L. R. 2 P. & i>. 193- 
 
 * See Coup4 Co. t. Maddick, [1891] 2 Q. B. 417. ^ „ ^ ^ 
 
 " Per Willes, J., in Bamich v. English Joint-Stock Bank, L. K. 2 Kx. 250, 265. 
 ' Per Bramwell, B., in Weir v. Bell, 3 Ex. U. 238, 245. 
 8 Baldwin v. Casse'la, L. E, 7 Ex. 325. 
 
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882 
 
 MASTER AND SERVANT. 
 
 [PAET V. 
 
 Civil liability. 
 
 Act done in 
 course of 
 employment: 
 or with his 
 express or im- 
 plied assent. 
 
 ■Servant must, 
 as a rule, be 
 under his 
 immediate 
 
 -control. 
 
 others, and the principle of the maxim sic utere tuo ut alienum no^ 
 Imdas should apply.' 
 
 His liability is twofold : i. Civil ; ii. Criminal, 
 i. A master is liable for the act of his domestic or menial 
 servant, whether it be one of omission or commission, whether 
 negligent, fraudulent, or deceitful, or even if it be an act of 
 positive malfeasance or misconduct, if it be done in the course of 
 his employment;^ or with the express or implied direction or 
 assent of his master, however much the servant may abuse his 
 authority.' He may be liable if false and defamatory words are 
 spoken by the servant with his authority and consent ;* but such 
 authority must be direct.' He is in general liable for all the 
 consequences that may arise from the misconduct of his servant." 
 He is also liable for the acts of servants who are selected or 
 appointed by him, but who are not under his immediate control.^ 
 In cases of sudden necessity or emergency a servant would seem 
 to have the implied authority to appoint another person to act as 
 his master's servant ; and the master would be rendered liable for 
 any negligent act of the person so appointed as his servant.* It 
 sometimes happens that it is a question of great nicety to decide who 
 is the master of the person employed, whose act has given rise to 
 the alleged liability. A fair test of the question is the exclusive 
 and permanent control exercised over the servant ; he who has the 
 permanent and exclusive control over the servant would in most 
 instances be deemed to be the master, though at the particular 
 moment of the act complained of the servant was under the 
 control and orders of a temporary employer. It was not settled 
 law for some time that a coachman with a carriage or horses on 
 the job was not the servant of the hirer. In an early case in 
 which the point arose, LaugJier v. Pointer^ the judges were equally 
 divided; and it was not until Quarman v. Burnett^" that the point 
 was set at rest. In Laugher v. Pointer, the defendant, the owner 
 of a carriage, hired of a stable-keeper a pair of horses to draw it 
 for a day, and the owner of the horses provided a driver, through 
 whose negligent driving an injury was done to a horse belonging 
 
 ^ Eob. & Wall. Duty and Liability of Employers, 2. 
 
 ^ Story, Agency, 452. 
 
 ' Bayley v. Manchester, Sheffield, and Lincolnshire Railway Co., L. E. 8 C. P. 
 T48. ■>■ Odger's Lib. & SI. 411-415. 
 
 ' Harding v. Greening, 8 Taunt. 42. 
 
 ' But see Oreenlandv. Chaplin, 19 L. J. Ex. 293. 
 
 ' Fitts V. Kingshridge Highway Board, 25 L. T. 195. The American law saeras 
 to be the same on this point : Lowell v. Boston Bailway Co., 23 Pick. 24. See also 
 Boothy. Mister, 7 C. & P. 66, in which a master was held liable for the acts of a 
 stranger whom his servant had requested to act in his place. 
 
 8 Gwilliam v. 2\Diat, [1894] 1 Q, B. 567. » 5 B. & C. 547. 
 
 i» 6 M. & W. 499. In this case the opinion of Abbott, C.J., and Littledale, J., in 
 Laugher v. Bointer, was adopted. 
 
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€HAP. VIII.] RELA.TIONS OF MASTER TO THIRD PERSONS. 883 
 
 to the plaintiff. In Quarman v. Burnett, the defendants were the 
 owners of a carriage, who were in the habit of hiring horses from 
 the same person, to draw it for a day or a drive, and the owner of 
 the horses provided a driver, through whose negligence an injury 
 was done to the plaintiff. In this case it was held to make no 
 difference that the defendants had always been driven by the 
 same driver, he being the only regular coachman in the employ of 
 the owner of the horses, or that they had always paid him a fixed 
 sum for each drive ; or that they had provided him with a livery 
 which he left at their house at the end of each drive, and that the 
 injury in question was occasioned by his leaving the horses while 
 80 depositing the livery in their house. This decision was 
 grounded on the principle that where the relation of master and 
 servant does not exist, the liability from that relation cannot 
 arise.' If, however, the temporary dominus orders, or sanctions, 
 or adopts the act of his servant for the time being, he renders 
 himself liable for the result of his conduct." Occasional employ- 
 ment of the servant will render the master liable;' or where the 
 relationship is constituted for a particular and limited purpose, as 
 under the Metropolitan Hackney Carriage Acts for the protection 
 of the public* But if a person lends his servant temporarily to 
 another for a particular employment, the servant for anything 
 done in that particular employment must be considered as the 
 servant of the man to whom he is lent, though he remains the 
 general servant of the person who lent him.^ 
 
 The master is liable for the fraud of his servant committed in the Master liable 
 ordinary course of his employment, but not where it is committed servant, 
 outside the scope of his authority.^ 
 
 A master is liable for every wrong of his servant committed by General 
 him in the course of the service, and for the master's benefit, though ^^ ^^^^ 
 no express command or privity of the master be proved ; and there 
 is no distinction between fraud and any other wrong.' If the 
 servant, to further the interests of his employer, and substantially 
 in the execution of his orders, commits a tortious act in the course 
 of his employment, and exceeds his instructions, or altogether departs 
 from them, the master is not relieved by reason of his having given 
 orders that the servant should do his work properly, and should not 
 
 ' This decision was approved and followed in Jones v. Corporation of Liverpool, 
 14 Q. B. D. 890. 2 M'Laughlin v. Prior, 4 M. & G. 88. 
 
 ^ Ooodman v. Bennett, 3 C. & P. 167. 
 
 ^ Venables y. /Smith, 2 Q. B. D. 279; King v. London Improved Cab Co., 23 
 Q. B. D. 281. But Bee King v tSpurr, 8 Q. B. D. 104. 
 
 ^ Donovan v. Lang, [1893] i Q. B. 629. 
 
 ^ Coleman v. Miches, 24 L. J. C. P. 125. 
 
 ' Macltay v. Commercial Bank of New Brunsivich, L. E. 5 P. C. 31 ; Weir v. 
 Bell, 3 Ex.D. 238 ; Cargill v. Bower, 10 Ch. D. 502. See Dt/er v. Munday, [1895] 
 I Q. B. 742. 
 
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884 
 
 MASTER AND SERVANT. 
 
 [part t„ 
 
 Drunkenness 
 of servant 
 equivalent to 
 negligence of 
 master. 
 
 Master liable 
 ■where the 
 servant was 
 acting on his 
 behalf and with 
 his authority ; 
 but not other- 
 wise. 
 
 cause injury to otker persons.' The giving sucli orders is quite 
 immaterial ; but if the master has enjoined his servant not to d» 
 a particular act, and the servant not in the course of his employ- 
 ment or duty does it, and thereby causes injury to another, the- 
 former will not be liable.^ The master has been held liable in the 
 following instances for the acts of his servant done or suffered to 
 be done by him in the course of his employment ; where a servant- 
 is driving a horse which runs away and does damage ; ' where- 
 he executes his master's orders with reasonable care and does- 
 damage; * where he does an injudicious act and damage results ;» 
 where he drives a cart on business of his master, then makes 
 a dMour for purposes of his own and does damage." He is- 
 liable even where the conduct of the servant acting within the 
 scope of his employment is wanton, violent, and causes injury."^ 
 He, too, is liable where being bailee of an article, his servant by 
 his negligence injures it, though the injury is caused by an act of 
 the servant done contrary to his master's orders.^ The drunken- 
 ness of the servant is equivalent to the negligence of the master, 
 for which he will incur liability.^ He is also liable if he expressly 
 order the servant to commit a trespass, or the trespass is the 
 natural or necessary consequence of the act ordered to be done ; '* 
 and in such a case, the presence or absence of the master at the 
 time of the committing of the trespass would be immaterial. But 
 his presence or absence would become material where the servant 
 has committed a trespass, or done any wrongful act without his 
 orders ; for, if he be absent he is not responsible ; and unless there 
 is evidence of the concurrence of the master's will in the act of the 
 servant, he cannot be treated as a trespasser for the act of his 
 servant." But if he be present, his presence may be taken to pre- 
 sume concurrence, for knowing his servant was about to commit a 
 trespass, yet he forebore to exercise his power and control over 
 him." It is, then, the wrongful or negligent act of the servant 
 while engaged in some employment or service on behalf and in 
 consequence of the orders of his master, creates the responsibility 
 of the latter; and in cases involving this question, the most 
 serious dispute is as to whether the servant was or was not acting 
 on behalf and with the authority of his master, and it is rightly the 
 province of the jury to determine the matter." 
 
 1 Belts V. J)e Vitre,li. R. 3 Ch. App. 441. ^ Stevensv. Woodward, 6 Q.'B.D. 318. 
 * Chandler v. Broughton, I C. & M. 29. * Gregory v. Piper, 9 B. & C. 591. 
 5 Croft V. Alison, 4 B. & Aid. 590. " Joel v. Morrison, 6 G. & P. 501. 
 
 ' Seymour v. Greenwood, 30 L. J. Ex. 327. In this case the guard of an omnibus, 
 in removing therefrom a passenger whom he deemed to be drunk, forcibly dragged him 
 out, and threw him upon the ground, whereby he was seriously injured . 
 
 8 CoupiCo.v.Maddidc,[iSgi]zQ.B.t^i3. " Wanstallv.Pooiey,6C].&.Tm.gion. 
 ^^ Gregory v. Piper {ubi sup.). '' M'Manus v. Orickett, 1 East, ic6. 
 
 " Ste Chandler v. Broughton {ubi sup.). " Patten v. jtiea, 26 L. J. C. P. 235. 
 
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CHAP. VIII.] fiELATIONS OF MASTER TO THIED PERSONS. 885 
 
 The prinoiples of the law on this subject, so far as they are 
 within the scope of this treatise, are well illustrated by the cases 
 dealing with the negligent and improper driving of servants. The 
 -distinction between the liability and non-liability of the master for 
 his servant's act has been thus laid down : If a servant driving a 
 carriage, in order to effect some purpose of his own wantonly strike 
 -the horses of another person, and produce the accident, the master 
 -will not be liable. But if, in order to perform his master's orders, 
 he strikes but injudiciously, and in order to extricate himself from 
 a difficulty, that will be negligent and careless conduct, for which 
 the master will be liable, being an act done in pursuance of the 
 ■servant's employment.^ If a servant, being on his master's busi- 
 ness, take a detour with a carriage for some purpose of his own (as 
 to see a friend, or do shopping for himself), and drive negligently, 
 •and cause damage, the master must ansiver for his act, on the 
 ground that as he has intrusted the servant, with the control of the 
 carriage, it is no answer that he acted improperly in the manage- 
 ment of it.^ But the dMour or deviation must occur on a journey 
 on which the servant has originally started on his master's busi- 
 ness ; ^ in other words, he must be in the employ of his master at 
 the time of committing the tortious act.* He will be exonerated if 
 his servant, " on a frolic of his own," take his carriage without his 
 ■consent or knowledge, and use it so negligently as to be productive 
 of loss and damage.^ A master is also liable for the tortious acts LiabUity for' '' 
 of his servant which he adopts and ratifies ; ' but the acts must be adopted by""** 
 done for his use and benefit.' Mm, 
 
 The liability of the master is not boundless, but has limits Limits of 
 •dictated by justice and common sense. If the relationship of ^ ^ ' ^^ 
 master and servant was alone sufficient to create a liability on the 
 part of the former towards third persons for the acts of the latter 
 Tinder all circumstances and at all times, it would be both unjust 
 and inexpedient. A master should be liable only for those acts 
 which he was instrumental in bringing about, or are within the 
 fair scope of the servant's authority ; ° to render him responsible 
 for acts done out of his service, and not for his benefit, or for 
 wilful acts done without his direction or assent, and not on his 
 behalf, would be unjust, for it would render him answerable for 
 that over which he had no control ; and inexpedient, because it 
 
 ' Oroft V. Alison, 4 B. & A. 590. 
 
 " Joel V. Morrison [ubi sup.) ; Booth v. Mister, 7 C. & P. 66. 
 
 » Sleath (or Heath) v. Wilson, 9 C. & P. 607. 
 
 " See Mitchell v. Orassweller, 22 L. J. C. P. 100. 
 
 * Joel V. Morrison (ubi sup.) ; Mitchell v. CrassweUer (ubi sup.). 
 
 * See Wilson v. Tummon, 6 Scott, N. E. 894. 
 ' Wilson V. Barker, 4 B.& Ad. 614. 
 
 * Baijleyv. MaTwhsster, Shi-ffield, and Lincolnshire Railway Co., L.R. 8 C. P. 14?. 
 
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886 MASTER AND SEEVANT. [part v. 
 
 would tend to make the master employ servants of an inferior 
 class ; and all parties would be rendered more careless and less 
 circumspect. The principle of the law is that no master is 
 chargeable with the acts of his servant but when he acts in the 
 KoD-iiabiiity , execution of the authority given him.^ A master is not liable for 
 
 o/ mfl.Ht.Pi' 
 
 the dishonesty of his servant, if he has been guiltless of any mis- 
 feasance, for he does not insure the honesty of his servant;^ 
 neither is he liable for a fraudulent act of his servant, where the 
 latter was acting beyond the scope of his authority or ordinary 
 course of employment;' in other words, where the act of the 
 servant is not within the scope of his authority or incident to the 
 ordinary duties of his employment, and no negligence is shown on 
 the part of the master, then he will not be held liable ; * thus, he 
 is not liable where the servant exceeds or departs from his instruc- 
 tions, and does an act unnecessary for the protection of his pro- 
 perty.' Again, it has been held that a wilful injury inflicted by a 
 ■servant, though done in the course of his employment," or a wilful 
 or illegal and unauthorized' act of the servant, will not render the 
 master responsible for its consequences.^ Where a housemaid set. 
 fire to a smoky chimney in order to clean it, whereby she burnt 
 down the house and caused damage, her master was held not 
 liable.^ But this statement must be qualified by the fact that, if 
 the wilful and criminal act is done by the servant in the course of 
 his service to further the interests and for the benefit of his master^ 
 the latter is liable.'" He is not liable where the tort or injury was- 
 the result of an accident on the part of the servant." 
 Servant acting It is not always an easy matter to determine when the act of 
 of aut™ori?y ^ ^^^ Servant is independent of the authority and employment of his. 
 and employ- master, and the cases are not absolutely clear and unmistakable on 
 
 ment of . ■' . 
 
 master. the point. It would seem to be more in accordance with justice 
 
 and the ordinary necessities of life that the master's liability should 
 not be extended beyond the limits of his employment and service 
 of the servant, for within such he may be deemed to insure and. 
 
 ' Per Holt, C. J., in Middleton v. Fowler, i Salk. 282. 
 Holder v. Soulhy, 29 L. J. C. P. 246. This was a case of a lodging-hnuse keeper. 
 But see Dansey v. Michardson (3 El. & BI. 144), where the Court was equally divided 
 on the question whether a boarding-house keeper was liable for the negligeiwe of his 
 servant. The undoubted responsibility of an inkeeper for the honesty of his servants 
 is based upon his common law insurance of the safety of the goods of his guests. 
 
 ^ Coleman v. Riches, 24 L. J. C. P. 125. 
 
 * Stevens v. Woodward, 6 Q. B. D. 318. 
 
 = AUen V. L. <& S.- W. My. Oo., L. E. 6 Q. B. 65 ; Charleston v. London Tram- 
 ways Co., 36 W. K. 367 ; /Stevens v. Hinshelivood, 55 J. P. 341. 
 
 ^ Gordon v. Bolt, 18 L. J. Ex. 432. 
 
 ' Lyons v. Martin, 8 A. & E. 512 ; Richards v. West Middlesex Waterworks Co. 
 15 Q. B. 660. 8 M'Manus v. Criclcett, i East, 106. 
 
 ^ Mackenzie v. Macleod, 10 Bing. 385. 
 
 '" See Limpus v. London General Omnibus Co., 32 L. J. Ex. 34 ; Munday v. Dyer, 
 [1895] I Q. B. 742. " Harding v. Barker, 37 W. R. 78, 
 
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CHAP. VIII.] RELATIONS OF MASTER TO THIRD PERSONS. 887 
 
 indemnify the public at large against the acts of his servant. In 
 the next two cases the master was held not liable for the negligence 
 of his servant. The defendant's carman, having finished his day's 
 work, returned home with his horse and cart, and got the key of 
 the stable, which was close by, but instead of going there at once 
 and putting the horse up, drove oif with a fellow-servant, and in 
 so doing ran over and injured the plaintiff. The carman was held 
 not to have been at the time of the accident engaged in the business 
 of his master, who was held not responsible for his unauthorized 
 act.' A wine merchant sent a clerk with his carman to deliver 
 wine at some distance off ; the carman's duty was to bring back 
 empties, and to put up the horse and cart. About a quarter of a 
 mile from home, the clerk asked the carman to drive him in an 
 opposite direction to that in which they were then going ; the 
 carman did so, and in driving about two miles out of the way, 
 seriously injured the plaintiff.^ Cockburn, O.J., said in this case, 
 " I think the law as laid down in Mitchell v. Crassiveller presents 
 us with a true view of the case. I cannot adopt the proposition 
 of Erskine, J., in Sleath v. Wilson,^ that whenever the master has 
 intrusted the servant with the control of the carriage it is no 
 answer that the servant acted improperly in the management of 
 it. I think a servant can only be said to be acting in the employ- 
 ment of his master so long as he is doing some act with his 
 master's assent." A case was decided in the Court of Common 
 Pleas during the year before, in which a master was held liable 
 for the acts of his servant under the following circumstances.'' 
 The master was a contractor executing certain public works ; his 
 servant was in charge of a horse and cart ; the servant was 
 specially enjoined not to go home to dinner ; the servant on one 
 occasion did go for dinner to his home, which was a quarter of a 
 mile from his work, and took the horse and cart with him ; he left 
 the horse outside of his house unattended ; the horse ran away, 
 and injured some railings belonging to the plaintiff. This case 
 does not seem to conflict with the two previous ones, for the 
 servant's going home to dinner, though contrary to orders, was a 
 mere temporary stoppage of the work which he was doing on 
 behalf of his master ; and so if any accident arose through the 
 servant's negligence, the master would be liable, for the servant 
 was still engaged in his employment and service. The master is 
 not liable where the servant commits the tort before he has re- 
 entered upon his duties.'' A master has also been held irrespon- 
 
 1 Mitchell V. CrassweUer, 22 L. J. C. P. ico. 
 
 " Storey v. Ashton, L. B. 4 Q. B. 476. " 9 C. & P. 607. 
 
 * Whatman v. Pearson, L. Pl. 3 C. P. 422. 
 
 = Bayner v. Mitchell, 2 0. P. D. 357. 
 
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MASTER AND SERVANT. 
 
 [part 7. 
 
 Tlie mere 
 <ioiDg of some 
 service for the 
 master does 
 not render him 
 liable. 
 
 Summary. 
 
 Criraiual 
 liability. 
 
 Acts of ser- 
 vants autho- 
 rized by 
 master. 
 
 "When master 
 not liable. 
 
 sible for tlie tort of his servant where the latter was contracting 
 within the ordinary scope of his employment, though, as a matter 
 of fact, he did some service for his master who adopted it.' If a 
 servant in the course of his master's employ do a wilful injury, 
 the servant and not the master is liable ; for, under ordinary cir- 
 cumstances, the authority of the agent is limited to that which is 
 lawful. If in seeking to carry out the purpose of his employment 
 he oversteps the law, he outruns his authority, and his principal 
 will not be bound by what he does.^ 
 
 A master is liable for the acts of his servant within the scope 
 of the latter's employment,' however wrongful and negligent 
 such acts may be,* but is not responsible for the wrongful act 
 of his servant, unless that act be done in the execution of the 
 authority given by him, and in the course of his employment.* 
 Beyond the scope of his employment he is as much a stranger to 
 his master as any third person, and his act, therefore, cannot be 
 regarded as the act of his master ; " and where there is no 
 implied authority on the part of the servant to do the act,' or 
 the act of the servant is an act of his own, and to effect a purpose 
 of his own, the master is free from liability.^ Of course a master 
 is not liable for the injurious act of his servant unless it be wilful, 
 or the result of negligence.' 
 
 ii. It is clear that the master may also be criminally liable for 
 all acts of a criminal nature which he has expressly authorized his 
 servant to commit. When a criminal act has been committed by 
 persons who stand to each other in the relation of master and 
 servant, in the eye of the law that relation ceases, and as regards 
 the offence they are on the same level, and are treated as such ; 
 each must stand or fall by his own act. If a master order a 
 servant to do an illegal act, the servant may justifiably refuse to 
 carry out his orders ; and if he elect to obey them, he does so at 
 his own risk. To make a master criminally liable for the acts of 
 his servant, he must have expressly ordered them, or personally 
 co-operated in their commission. So, if a master employ a servant 
 to do a thing which may be done in several ways, criminal and 
 innocent, and the servant does it in a criminal way, the master is 
 not liable, for no man who is an agent for a legal purpose can 
 make the principal responsible for an illegal act, unless the prin- 
 
 470. 
 
 ' Cormlck v. Digby 9 Ir. K. 0. L. 557. '' Wilson v. Ranldn, 35 L. J. Q. B. 87. 
 ^ Burns v. Poulsom, L. K. 8 C. P. 563. ' Wlntdey v. Pepper, 2 Q. B. D. 276. 
 ^ See Mitchell v. Crassweller, 22 L. J. C. P. 100 ; Storey v. Askton, L. 1!. 4 Q. B. 
 
 ° Olding v. Smith, 16 Jur. 497. 
 
 ' Lr/rd Bolinghroke v. Swindon New Town Local Board, L. E. 9 C. P. 575. 
 
 " TAmpus V. London General Omnibus Co., 32 L. J. Ex. 34. 
 
 " Holmes v. Mather L. R. 10 Ex. 261 ; Budd v. Lucas, [1891] i Q. B. 4p8. 
 
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CHAP, vm.] RELATIONS OF MASTER TO THIRD PERSONS. 889 
 
 cipal lias, in some way directly or indirectly, authorized it.' But 
 where a master employs a servant to carry on his work who carries 
 it on at a profit, the former may be rendered criminally liable for 
 the acts of the latter if done contrary to statutory provisions, 
 though such statatory offence may be in breach of his own orders, 
 ^nd committed without his knowlege.^ 
 
 Domestic or menial servants not infrequently render their Liability of 
 masters liable to penalties, quasi-criminal in their nature, such as penalties under 
 are inflicted under the Licensing Acts.' The act of the servant ^ots'^*'^"^'''^ 
 when within the usual scope of his employment is considered to 
 liave been done by the implied command of the master, and the 
 latter is criminally responsible for it, though he is perfectly 
 ignorant of its commission ; indeed, personal knowledge on the 
 part of the master is not necessary to constitute the oifence.* But Knowledge 
 some evidence of actual or constructive knowledge on the part of constructive) 
 the master that his premises were being used contrary to the Act necessary on 
 
 -,,, , . . . . ,. , part of master. 
 
 is necessary .° If the servant connivmg at the commission of the 
 statutory offence is in charge of the premises the master will be 
 tpld liable for the breach of the law." But where the servant is 
 not in charge of the premises and permits the commission of the 
 offence of which the master himself is personally ignorant, then 
 the latter will not be rendered responsible.' 
 
 But where the negligent doing of a particular thing is made a Negligence of 
 •statutory offence, the negligence of the servant will not render the ^^y dr^""^' 
 master criminally liable, unless it can be shown that the latter °^j™''*' ^'*" 
 was negligent in the user.^ But under the Sale of Food and jj^^gp^^^ . 
 Drucs Act, i87c;,^ a master has been held responsible when the Sale ot Food 
 
 ° ' ' -" ci-i / -L. *"" Drugs 
 
 servant, while acting within the scope of his employment (as by Act, 1875. 
 selling an article of food), does an unlawful act, though he (the 
 ■master) not only does not connive at such act bat is ignorant of 
 the fact of its existence, and has given orders against its commis- 
 ■sion ; '" but where the servant in doing the illegal act travels 
 outside the scope of his employment, he will not render his master 
 responsible for it." So, too, under the Pharmacy Act, 1868,'' the Pgbarmacy Act, 
 person on whose behalf any sale of poisons is made by any appren- 
 tice or servant is to be deemed the seller. These provisions are, 
 of course, for the pirotection of the public. 
 
 1 Cooper V. Slade, 6 H. L. Cas. 793. „,-,,., 
 
 2 Sea. y. Stephens:, L. E. i Q. B. 702. ' 35 & 3^ Vict c. 94- 
 
 * Mullms v. CoUinii, L. B. 9 Q. 6. 292 ; Cfundy v. Le Coca, 13 Q. B. P. 207 ; 
 Sond V. Evans, 21 Q. B. D. 249. ' Bosley v. Dames, i Q. B. D. 84. 
 
 8 Mullim V. Colli-ns {ubi sup.) ; Bedgate w.Haynes, i Q. B.D. 89 ; Bondv.Jivans 
 lubi sup.); Bind see Bosleyv.t>ovie8 (ubi sup.). , „ ,,. , 
 
 ' Somerset v. Hart, 12 Q. B. D. 360 ; but see Bond v. Evans {vhi svp). 
 
 8 CUsholm V. Dovltm, 22 Q. B. 1). 73^ ; tut see Beg. v. Stephens (vM sup.) 
 
 9 38 & 39 Vict 0. 63. '" Brown v. Foot, 61 L. J. M. C. no. 
 " See Newman v. Jones, 17 Q. B. D. 132 ; Kearley v. Tonge, 60 L. J. M. C. 159. 
 
 12 31 & 22 Vict. c. 121, B 17. 
 
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CHA.PTEE IX. 
 
 EELATIONS OF SERVANTS TO THIRD PERSONS CREATED 
 BY ACTS DONE ON BEHALF OF THE MASTER. 
 
 PAGE 
 
 Civil Liability of Sekvant 890 
 
 On Contbact made on Behalf of Master . . . 8go 
 
 Kemedt against the Sbevakt 891 
 
 Fob Tobts Committed on Behalf of the Mastee : 
 
 Liability foe Conversion 891 
 
 Liability foe Joint Feaud 891 
 
 Criminal Liability 892 
 
 In the last chapter it was seen that the liability of the master for 
 the acts of his servant vras that of a principal Vfho employed an 
 agent to transact his business, and whose acts, within certain 
 limits, were deemed to be as his own ; for where a principal 
 obtains a benefit through his agent, there also should he be 
 responsible for loss occasioned by that agent. A servant can, like 
 any other agent, so act as to render himself liable, though when 
 acting ordinarily, as an agent for his master, he is not liable. 
 
 A servant may render himself liable i. on contracts made on 
 
 behalf of the master ; ii. for torts committed on behalf of the 
 
 master. 
 
 Liability on i. On Contracts made on behalf of the Master. — A servant wUl 
 
 on'behaU of* ^ render himself liable when, on entering into the contract, he 
 
 master. (Joes Something wrong, or omits to do something right; thus, if 
 
 he exceed his authority, or fraudulently misrepresent it, he will 
 
 be held personally responsible ; ' provided the person with whom 
 
 he contracts is unaware of his agency.^ The servant can also 
 
 render himself liable by contracting in his own name,' and it may 
 
 not be a useless caution to servants to remind them that if they 
 
 are contracting in their own names, they should use apt words to 
 
 describe their procuratorial capacity, as "agent for," or "per 
 
 ' See Smout v. llhery, 12 L. J. Ex. 357. 
 
 * Paterson v. Gandasequi, 15 East, 62 ; 2 Sm. L. 0. 378. 
 
 ' Smout V, llhery (ubi sup. ) ; Blades v. Free, 9 B. &. C. 167. 
 
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CHAP. IX.] RELATIONS OF SERVANTS (THIRD PERSONS). 891 
 
 procurationem " (per proc.). A servant having an authority to Servant not 
 contract which is revoked without his knowledge, as by the death rev°<itTon°of 
 of the master, would not be liable on a contract which was within authority 
 the scope of his authority.^ 
 
 The remedy against a servant who has contracted with autho- Kemedy 
 rity, is either an action for the deceit, as a tort, or on an implied sf^ant.'''^ 
 warranty that he possessed the authority he professed to have,** 
 on the principle that "persons who induce others to act on the 
 . supposition that they have authority to enter into a binding 
 contract on behalf of third persons, on it turning out that they 
 have no such authority, may be sued for damages for the breach 
 of an implied warranty of authority." ^ 
 
 ii. For Torts committed on behalf of the Master. — The servant is Liability for 
 not in general liable for acts of negligence or non-feasance, or mitted on 
 omissions of duty on his part in the course of his employment.'' ^^^gfj^"^ ^^^ 
 But the principle of law that in torts all the tort feasors are 
 principals, renders a servant responsible for mis-feasances on his 
 part ; and in an action against him for the tort it is no defence to 
 urge that he acted under the orders and for the benefit of his 
 master ; for in torts there is no question of degrees of blame and 
 Uability.^ In respect of non-feasances, or mere neglects in the 
 performance of duty, the responsibility must therefore form some 
 express or implied obligation between parties standing in privity 
 of law or contract with each other, and no man is bound to answer 
 for any such violations of duty or obligation except to those to 
 whom he has become directly bound or amenable for his conduct." 
 Where a servant converts goods for the benefit of his master, he Liability for 
 will be liable for the wrongful conversion ; ' but he has been held conversion, 
 quit of liability on making a qualified refusal to deliver up goods 
 to the true owner, and referring him to his master, for such mere 
 refusal was held not to amount to a conversion.^ So also, a servant Liability for 
 is no doubt liable for a joint fraud committed by him with his ^iti^ master. 
 master.^ The latter is clearly liable, and seemingly the former is 
 likewise. In the case of Oullen v. Thompson's Trustees^" it was 
 asked by Lord Westbury : " Can it be maintained as a proposition 
 
 ' Cherry v. Colonial Banh of Australasia, 38 L. J. P. C. 49. 
 
 2 Polhillv. Walter, 3 B. & Ad. 114. 
 
 3 Per Cookbnra, C.J., in Bichardson v. Williamson, L, E. 6 Q. B. 276, 279. 
 ■• Lane v. Cotton, 12 Mod. 472, 488 ; Story, Ag. s. 308. 
 
 5 Sands V. Child, 3 Lev. 352 ; Lane v. Cotton {ubi evp.); Perkins v. bmith, 
 I Wils. 328 ; Stephens v. Elwall, 4 M. & S. 459- ^ ^ _,„. „,,,,, 
 
 6 Story Ag s 309 ' Cranch v. White, i Soott, 314- 
 
 8 Mires y.Solebay, 3 Mod. 342; Lee v. Bobinson, 18 C. B. 599 ; Lee^. Hayes, 
 25L.J.C. P. 249. ,, „ T r, 
 
 9 See Culhn v. Thompson's Trustees, 4 Macq. H. L. tas. 424. 
 
 " P. 432- 
 
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692 
 
 MASTER AND SERVANT. 
 
 [PAET V. 
 
 Priuoiple of 
 liability. 
 
 Criminal 
 liability of 
 servant. 
 
 of law that a servant who knowingly joins with and assists his 
 master in the commission of a fraud, is not civilly responsible for 
 the consequences ? All persons directly concerned in the commis- 
 sion of a fraud are to be treated as principals. No party can be 
 permitted to excuse himself on the ground that he acted as the 
 servant of another ; and the reason is plain, for the contract of 
 agency or of service cannot impose any obligation on the agent 
 or servant to commit or assist in committing a fraud." 
 
 The servant is liable, if he knowingly commit a fraud in his 
 master's business, to answer for it to the party injured, and cannot 
 shelter himself under his master's responsibility, although author- 
 ized by his master to commit the fraud ; for, as observed by Mr. 
 Justice Story,' it is an illegal act, and contrary to sound morals. 
 It is indeed laid down in RoUe's Abridgment ^ that if the servant 
 of a tavern sell bad wine knowingly, no action lies against him, 
 for he only did it as a servant. But that position has been fre- 
 quently doubted by text-writers, and would seem to be contrary 
 to the principle that the command of the master has been held no 
 justification of a misfeasance on the part of the servant.' But if a 
 domestic servant not in charge of a weak and impotent person 
 obeys his or her master in an act of non-feasance, e.g., not supplying 
 the person with proper food and medicine, and in consequence of 
 neglect the person dies, he not having committed a breach of any 
 legal duty, would not be liable to conviction for murder or man- 
 slaughter.* 
 
 In crimes as well as torts, it may be laid down as a general 
 proposition that all are equally liable for their acts, and cannot 
 shift upon the shoulders of others the burden of responsibility. 
 If a man knowingly engage in the commission of a crime, it does 
 not lie in his mouth to say that he was only a servant, and acting 
 under his master's direction and orders ; for, ex hypothesi, such 
 were illegal, and need not have been obeyed. Thus, if a nurse, in 
 carrying out the orders of her master or mistress, knowingly cause 
 the death of a child, she may be convicted of murder or man- 
 slaughter, as the circumstances of the case are proved. But if the 
 servant be an innocent agent for the commission of an act which 
 is not palpably illegal, and which he honestly carries out in the 
 discharge of the directions of his master, and acts lond fide in 
 obedience to those orders which he deems himself bound to obey. 
 Tie will not, it is submitted, be personally answerable.^ In such a 
 case it is sometimes a matter of difficulty to decide whether the 
 
 1 Ag. s. 310. 2 I Krll. Abr. fol. 95. ' Smitb, M. & S. 421. 
 
 * See Beg^ v. Staunton and Bhoden, Times, November 9, 1877. 
 
 * Beff^ V. tfames, 8 0. & P. 131 ; Meg. v. Bleasdale, 2 C. & K.. 768. 
 
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CHAP. IX.] RELATIONS OF SERVANTS (THIRD PERSONS). 89» 
 
 act of the servant is altogether that of his master, or independent- 
 of him ; if the former, the servant is irresponsible,' but the con- 
 trary, if it is one that may be deemed the act of the servant 
 alone.^ If a servant actively participate with his master in the 
 commission of an offence, as, for instance, harbouring prostitutes. 
 in a place of public resort, of course he may be committed as aa 
 aider and abettor.' 
 
 1 Hex V. Taylor, IJ East, 460. 
 
 '' Ex parte Sylvester, 9 B. & C. 61. 
 
 ■• WiUon V. Stewart, 8 L. T. 277. 
 
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CHAPTER X. 
 
 OFFENCES BY SERVANTS. 
 
 Definition of Laecbnt 
 
 Distinction between Laecbny and Embezzlement 
 Wheeb Sbevant has Baeb Custody, the Offence 
 CBNY ... .... 
 
 Embezzlement : what Constitutes Embezzlement 
 
 Pebson Indicted foe Embezzlement may be 
 victed of Laeceny, and vice veesa 
 
 Punishment 
 
 No Pbivilegb of Mastee to Seaech Seevant's Boxes 
 Bueglaey 
 
 Lae- 
 
 CON 
 
 PAGE 
 895 
 896 
 
 897 
 897 
 
 899 
 
 It has been deemed not out of place to append a short chapter on 
 the more frequent offences committed by servants against the pro- 
 perty of their masters ; for though the criminal law has hitherto 
 found no place in these pages, except incidentally, yet it is more 
 intimately concerned with the relations of master and servant, for 
 the latter are often placed in positions which sorely try their 
 honesty, and in which they yield to their temptations. 
 
 The commonest offence dealt with in any court of justice is 
 theft ; and a large number of thefts or larcenies are committed 
 by servants, not excepting domestic or menial servants. There is 
 also another offence, which is not of infrequent occurrence, namely, 
 embezzlement, which can only be committed by one in the position 
 of a clerk or servant. The law on this subject is intricate, con- 
 fused, and obscure ; at times it is difficult and almost impossible 
 to say with certainty whether the off'ence of larceny or embezzle- 
 ment has been committed ; but owing to a wise provision of the 
 law, to which allusion will be made hereafter,' it is now a matter 
 of less moment than it was formerly, though not without its im- 
 portance. There is no difficulty when the thing stolen has 
 remained up to the time of the theft in the possession and custody 
 of the master; but when the goods have been delivered to the 
 servant by the master, questions may arise whether the mere 
 
 1 Post, p. 897. 
 
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CHAP. X.] OFFENCES BY SERVANTS. 8^5 
 
 custody of the goods, or something more, has passed to the ser- 
 vant ; thus raising doubt whether theft or breach of trust has been 
 committed. 
 
 Larceny has been defined to be " the wrongful or fraudulent Definition of ' 
 taking (contrectatio), and carrying away (asjoortatio), by any person ^^°^'^^- 
 of the mere personal goods of another, from any place, with a 
 felonious intent to convert them {animus foorandi) to his (the 
 taker's) own use, and make them his own property, without the 
 consent of the owner.^ 
 
 There is no satisfactory definition of embezzlement, and the fol- 
 lowing is but an attempt to describe it: namely, a fraudulent 
 deprivation by a clerk or servant of his master's personal goods 
 received by such clerk or servant for or on account of his master 
 before they have reached the latter's possession. As applicable to Distinction 
 servants, the distinction between the two ofiences may be said to laromyand 
 be, that theft or larceny is the fel6nious taking of property out oj^ embezzlement 
 the possession of the master, whether actual or constructive ; and 
 embezzlement is the fraudulent misappropriation of property 
 received for or on account of the master lefore it reaches his 
 possession, whether actual or constructive. In some instances con- 
 fusion and doubt seem to arise from the non-appreciation of what 
 looks like an economic fallacy, that goods sold and the price paid 
 for them are not virtually one and the same thing in different 
 shapes ; as, for example, if a master send his servant to market 
 with certain commodities, and his servant misappropriate them on 
 the road, the latter can in most instances be indicted for larceny. 
 But should he effect a sale, and receive the price of the goods, 
 which he improperly appropriates to his own use, he cannot be so 
 indicted ; as though there was any valid distinction between the 
 relations of his master to the goods delivered ly him to the vendee, 
 and the goods, whether in specie or in kind, delivered to him by 
 the vendee ; for on delivery of the goods by the vendee to the 
 servant on behalf of his master, the rights of the latter over them 
 at once become identical with the rights he claimed to exercise 
 over the goods which had just ceased to be his property by the 
 operation of the sale and delivery. Again, if a servant is sent by 
 his master to get change for a bank-note, gets it, and embezzles 
 the change, he is not liable at common law for larceny, but should 
 be indicted for embezzlement, as his master never had possession 
 of the change ; ' but if he steal the note, it is larceny, for of that 
 he only had the custody and not the possession.' 
 
 The clear maxim of the common law, established by a variety of 
 
 1 2 East, P. C. 0. l6, 8. 2, p. 553. n n n m ,^r. 
 
 2 Meg. V. SuUens, I Moo. C. C. 129 ; Beg. v. Beynolds, 2 Cox, C. C. R. 170. 
 
 3 Bex V. Bass, 2 East, P. 0. 566 ; Beg. v. tioode, 0. & M. 582. 
 
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896 
 
 MA.STER AND SERVANT. 
 
 [part v.. 
 
 Where the cases, IS where a party has only the bare charge or custody of the- 
 
 bar™usto*dy, goods of another, the legal possession remains in the owner, and? 
 
 laroe^^'"'^ " ^^^ party may be guilty of trespalss and larceny in fraudulently 
 converting the same to his own use. This rale appears to hold 
 universally in the case of servants, whose possession of their 
 master's goods, by their delivery or possession, is the possession of 
 the master himself,' and it is immaterial whether the servant con- 
 ceived the felonious intent (animus furandi) at the time he received 
 them, or subsequently. A few cases will be given to illustrate this 
 proposition, and in which the offence was held to be larceny : A 
 servant who takes his master's goods to his master, and, on the 
 pretence that the goods were sent by a -person with whom the 
 master dealt, endeavours to induce him to purchase them, intending- 
 to retain the money.^ A servant sent with money given by his 
 master to get changed, applies it to his own use.' A servant sent 
 with his master's cart to a railway station for coals, which are put in 
 the cart ; on the way home the servant, without authority from his 
 master, disposes of some of them.* A servant receiving goods from 
 his master on account of the latter, wrongfully appropriates them.* 
 A cook, out of alleged compassion, gives certain articles belonging 
 to her master to a person who receives them." Formerly the offence of 
 clandestinely taking the master's oats by a servant, though for the 
 purpose of being given to the master's horses, was an indictable 
 felony. It is not so now, but is punishable on summary conviction 
 before two justices either by imprisonment or by penalty.' 
 
 But where a master parts not only with the custody, but also with 
 the possession of goods to a servant, and the servant converts them 
 to his own use, it is not larceny, unless he had a felonious intent 
 (animus furandi) at the time he received them.^ 
 
 Embezzlement, When a clerk or servant, or person employed in the capacity of 
 a clerk or servant, commits theft by converting any chattel, money, 
 or valuable security delivered to, or received, or taken into posession 
 by him for or in the name or on account of his master or employer, 
 his offence is embezzlement, and on conviction shall be liable to- 
 the same punishment as for larceny by a servant." As before 
 pointed out, the distinction between embezzlement by a clerk or 
 servant and other kinds of theft, is that in ordinary theft the 
 property stolen is taken out of the possession of the owner, whereas, 
 
 ^ 2 Eus3. Cr. 310. * Beg. v. TJdll, 2 C. & K. 947. 
 
 2 Reg. V. Goode, C. & M. 582. * Beg. v. Beed, 1 Bears. C. C. 168, 257. 
 
 ^ Beg. v. Hawkins, 4 Cox, C. C. R. 274. 
 
 s Beg. V. WhUe, 9 C. & P. 344. See Beg. v. Kerr, 8 C. &P. 176. 
 
 ' 26 & 27 Vict. c. 103. 
 
 ^ For illustrations of this see the cases of drovers intrusted with cattle to sell anrl 
 , receive the purchase-money ; Bex v. Huohes, 1 Moo. C. C. R. 370 ; Beg. v. Ooodbody, 
 8 C. & P. 665 ; Beg. v. Hey, 3 Cox, C.'C. R. 582 ; Millu/an v. Wedge, 12 Arl. & k. 
 737. " Steph. Dig. Cr. Law, 220 ; 24 & 25 Vict. c. 96, s. 68. 
 
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CHAP. X.] OFFENCES BY SERVANTS. 897 
 
 in embezzlement by a clerk or servant, the property embezzled is 
 converted by the offender whilst it is in the offender's possession 
 on account of his master, and before that possession has been 
 changed into a mere custody.' The offence of embezzlement cannot 
 be committed by the appropriation of property which does not 
 belong to the master of the alleged offender, although such pro- 
 perty may have been obtained by such alleged offender by the 
 improper use of the property intrusted to him by his master ; but 
 property which does belong to the master of the offender may 
 be embezzled, although the offender received it in an irregular 
 way.2 
 
 There are three factors which go to make up the offence ofwhatcon- 
 ■11 . stitutes em- 
 
 em bezzlement: bezzlement. 
 
 i. The person charged must be a clerk or servant, or employed 
 for the purpose or in the capacity of a clerk or servant.' 
 
 ii. He must receive or take into his possession some chattel, 
 money, or valuable security, for or in the name or on account of 
 his master or employer.* 
 
 iii. He must fraudulently embezzle the same or a part thereof. 
 Unless these are combined the offence is not embezzlement, but 
 may be simple larceny, or larceny by a servant, or by a bailee, or 
 it may amount to no more than a breach of trust, for which there 
 would only be a civil remedy. To support the charge of embezzle- 
 ment of money, evidence must be produced not only of a mere 
 receipt and non-payment of the money, but also a positive refusal 
 to account, for an omission to account is not inconsistent with 
 innocence.5 
 
 By 24 & 25 Vict. c. 96, s. 72, if a person indicted for embezzle- Person in- 
 ment or fraudulent application or disposition of property is proved embezzlement 
 to have been guilty of larceny, he is not entitled to be acquitted, ™*y ^e oon- 
 but may be convicted of larceny ; and vice versd if indicted for larceny, and 
 larceny. This alteration of the law has conduced much to the ''""' ""'" ' 
 better administration of justice, and thre prevention of guilty 
 persons escaping the consequences of their wrongful acts. But 
 notwithstanding this, there is a substantial difference between the 
 two offences, for if a person be indicted for and co7ivicted of the 
 
 ^ Beg. V. Wilson, 9 C. & P. 27 ; Hex v. Abraham, 2 East, P. C. 569 ; Hex v. 
 Bazeleu, 2 East, P. C. 571. 
 
 2 Reg. v. CvMum, h. R. 2 C. C. B. 28 ; Beg. v. GaU, 46 L. J. M. C. 146 ; Beg v. 
 Wilson {ubi sup. ). 
 
 ' It would be outside the purpose of this work to entertain an inquiry into the 
 numerous cases which have decided whether one person under certain circumstances 
 was or was not the servant of another person ; for, broadly speaking, there would be 
 little or no difficulty in ascertaining who was a menial or domestic servant. 
 
 * For apparently dissimilar constructions put upon the words " on account of his 
 master," see Beg. v. Beaumont, 23 L. J. M."C. 53; Beg. v. Thorpe, 27 L. J. M. C. 
 264. , 
 
 5 Beg. v. Jones, 7 C. & P. 833. 
 
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898 MASTER AND SERVANT. [part v. 
 
 one offence upon evidence which proves the other, the conviction 
 may be quashed.' 
 Larceny by a The law draws a distinction between larceny by a servant and 
 
 servant a more , . j?.t tc- 
 
 serious offence by One who IS not the servant of the owner oi the ^oods, tor m 
 iMc'eny™^^^ the former case the punishment meted out to the offender is 
 much more severe, in order to discourage the commission of 
 offences which are committed with greater ease from the position 
 and opportunities of the parties. Another reason is that modern 
 social life cannot be carried on without those in a higher sphere 
 placing much confidence in those who minister to their wants; 
 and it is but just and right that the abuse of this confidence 
 should be severely punished. This, however, casts upon masters 
 the corresponding duties of being careful in their choice of ser- 
 vants, and in not exposing them to temptations which may 
 Punishment be too strong for them. The penalty for larceny by a clerk 
 a°ser*vant.^ ^ or servant is provided for by the Consolidating Act of i86l, 
 24 & 25 Vict. sect. 67," which enacts that, " whosoever, being a clerk or servant, 
 '^' ^ ' or being employed for the purpose or in the capacity of a clerk 
 
 or servant, shall steal any chattel, money, or valuable security 
 belonging to or in the possession or power of his master or employer, 
 shall be guilty of felony, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be kept in penal servitude 
 for aijy term not exceeding fourteen years and not less than 
 (three) years,' or to be imprisoned for any term not exceeding two 
 years with or without hard labour, and with or without solitary 
 confinement, and if a male under the age of sixteen years with or 
 without a whipping." 
 No privilege of When a master has missed some of his goods, and suspicion 
 search boxes falls on a servant of having taken them, a claim of right is often 
 of servant. made to search the boxes of the suspected servant. If the servant 
 allows the search to take place, there is nothing irregular or illegal 
 in the act, but where he does not assent to or refuses permission 
 for the search to be made, and the master insists on it, then the 
 latter is guilty of a trespass and may be cast in damages, for 
 there is nothing in the relation of master and servant that confers 
 that right and privilege on the master. If he has good ground 
 for suspecting that the servant is dishonest and has concealed the 
 stolen articles in his or her box or other receptacle, then the right 
 course for the master to pursue is to go before the proper magis- 
 Appiicatiou trate and lay an information and apply for a search warrant : and 
 warrant. if he has acted with lona fides in his application he would be able 
 
 to defend successfully an action for trespass at the suit of the 
 
 1 Beg. V. Qorlutt, 26 L. J. M. C. 47. 2 24 & 25 Vict. c. 96. 
 
 2 The original minimum period of three years was re-enacted by the Penal Servitude 
 Act, 1891 (54 & 55 Vict. c. 69. B. I (i)). 
 
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CHAP. X.] OFFENCES BY SERVANTS. 899 
 
 servant.' The master might also call in the aid of a police officer, and 
 allow him to take such course as he thinks fit on the information 
 afforded him, for an officer of the law is more readily protected, if 
 reasonable evidence of suspicion is forthcoming.^ In any other 
 case the permission of the servant should be obtained in a free and 
 proper manner. 
 
 The ofEence of burglary, which is the breaking and entering of Burglary bv 
 a house in the night with intent to commit a felony, may be com- '™° °' 
 mitted by a servant, though living in his master's house, and " the 
 opportunity afforded him of doing it with greater ease rather 
 aggravates than extenuates the guilt."' Thus, where a servant 
 conspired with a thief to rob his master, and let him into the house 
 by night for that purpose, both servant and stranger were held 
 rightly convicted of burglary.* It is not necessary that the breaking 
 should be from the outside on the part of the servant ; and if he 
 attempt in the night-time to open a secured door of one of the 
 rooms for the purpose of committing a felony, whether it be with 
 intent to commit a rape,' or larceny, he may be convicted of 
 burglary. 
 
 ^ See Brown v. Chapman, 6 C. B. 365. 
 
 ^ See Grinham v. Withy, 4 H. & N. 496 ; Davis v. Bussell, 5 Bing. 354. 
 
 3 4 Bl. Com. 227. 
 
 * Bex V. Cornwall, 2 Stra. 881 ; but see Reg. v. Johnson, C. &. M. 218. 
 
 5 Bex Y. Gray, 1 Stra. 481. 
 
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 . / 
 
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INDEX. 
 
 ABDUCTION, 
 
 of girls under sixteen, 73, 559, 589 
 
 punishable offence, 73, 559, 589 
 
 wife's evidence admissible in prosecution of husband for her, 244 
 
 ACCESS, 
 
 mother's right of, to child, 494, 507, 508, 512 
 
 forfeiture of, by her, 495, 496 
 
 power of Divorce Court to regulate, 512, 514 
 
 under Talfourd's Act, 507. (See Infants Ouatody Act, 1839.) 
 
 under Infants Custody Act, 1873, 507, 508 
 
 under Guardianship of Infants Act, 1886, 494, 511, 514. (See Ovardian- 
 
 ship of Infanta Act, 1886.) 
 general control of court over, 630 
 of suitor to ward of court prohibited, 787 
 non-access. (See Non-Access.) 
 
 ACCOUNT, 
 
 husband liable to, for moneys received with consent of wife, 400 
 
 parent who deals with real or personal property of child liable to, 589, 688 
 
 matters of, assigned to the Chancery Division 698 
 
 action of, at law, fallen into disuse, 5931, 627, 698 
 ill the case of guardians 
 
 appointed by the Court must, from time to time, 688, 698 
 
 not so appointed, must on termination of guardianship, 688, 697, 698 
 
 mismanaging may be called on at any time to, 698 
 
 may not sue ward before passing accounts, 698 
 
 when allowed a sum for maintenance not usually called to, 642, 69S 
 
 when, between guardian and ward opened, 699, 703 
 
 when ward entitled to an, 697 
 
 open to ward's representatives, 700 
 
 fraud, error or mistake, ground for opening, 700 
 
 not barred by lapse of time, 703, 8o5 
 
 all necessary expenses and no more allowed on taking, 701 
 
 even where guardian solicitor, unless specially entitled, 701 
 passing of, by receiver, 696 
 infant entitled to, for mesne profits, 806. (See Limitations, Statute of.) 
 
 ACCOUNT STATED, 
 
 infant not bound by, though for necessaries, 726, 735, 736 
 formerly voidable only, 726 
 
 ACCUMULATIONS, 
 
 of separate estate are separate estate, 348 
 in the case of infants. (See Maintenance.) 
 
 may be applied at any time for infant's benefit, 678 
 
 when infant maintained out of, notwithstanding a direction for, 640 
 
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902 INDEX. 
 
 ACCUMULATIONS— coMfiritteA 
 
 may be maintained out of, of annual income, 650 
 
 when representatives of deceased infant, entitled to, of unapplied main- 
 tenance, 639 
 
 ACKNOWLEDGMENTS TO BAB WIFE'S INTERESTS 
 absolute conveyance hy wife 
 
 under Fines and Recoveries Act, 189 
 
 not required in the case of copyhold land, 189 
 
 deed acknowledged before judge or commissioner, 189 
 
 practice as to the acknowledgment of deeds, 189 
 
 separate examination of married woman formerly necessary, 190, 192 
 
 under the Settled Estates Act, 1877, 192 
 
 not under M. W. P. Act, 1882, 192, 205 
 
 exceptions, 192 
 
 husband's concurrence formerly necessary, 190, 204 
 
 when concurrence dispensed with by order of the Court, 190, 192, 204, 
 213 
 
 on what grounds, 191 
 
 how order obtained, 191 
 
 requirements of Act to be followed in a disposition of property under 
 Malins' Act, 204, 213 
 mortgages oy wife 
 
 deed acknowledged and separate examination necessary, 193. (See 
 Exoneration, Eguiiy of; Sedemption, Equity of.) 
 
 ACQUIESCENCE, 
 
 effect of married woman's, in breach of trust, 386. (See Breach of Trust.) 
 
 ward's, after attaining majority as to guardian's acts, 703-705 
 
 no bar to setting them aside while fiduciary position lasts, 703, 704 
 
 ward may be bound by, 704 
 
 direct, 704 
 
 indirect, 704 
 
 ACTION 
 
 in the case of husband and wife, 
 
 no longer abated by marriage of woman pendente lite, 420 
 
 or by death of either spouse, if cause of action survive, 420, 421 
 
 if husband or wife required to be joined, can be, 420, 421 
 hy wife alone 
 in contract 
 
 common law incapacity to bring, 330, 422 
 
 exceptions, 330, 422, 423 
 
 capacity in equity to bring, in respect of her separate estate, 331, 423 
 
 statutory powers : under the Divorce Acts, 331 
 
 under M. W. P, Act, 1870, 331 
 
 under M. W. P. Act, 1882, in her own name or representative capacity, 
 264, 283, 332, 401, 423 
 
 even though married before the Act, 424 
 
 need not sue by next friend if adult, 332 
 
 or obtain leave to bring, 332 
 
 as infant, must sue by next friend, 423 
 
 practice under Judicature Act as to appointment of next friend, 332, 
 423. (See Next Friend.') 
 
 married woman cannot act as next friend to infant, 424 
 
 need not give security for costs, 332, 424 
 
 except where not having separate property she appeals, 332 
 
 liability of, for costs, 332, 424, 425 
 
 former effect of restraint upon anticipation on her liability for costs, 
 332, 333 
 
 alteration effected by M. W. P. Act, 1893, 333 
 
 married woman may sue in formd pauperis, 334, 425 
 
 may sue husband, 424 
 
 may appoint attorney to bring, in her behalf, 332 
 
 to be brought within six years from date of cause of, 425. (See Limita- 
 tions, Statute of.) 
 
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INDEX. 903 
 
 ACTION— continued. 
 
 in tort, 333, 358, 359, 401, 424. (See above in contract) 
 under M. W. P. Act, 1882, in her own name or representative capacity, 
 
 283, 334, 420 
 even though married before the Act, 424 
 may sue husband, 335, 401, 424 
 
 to be brought within four or six years from date of cause of, 425. (See 
 Limitations, Statute of.) 
 against loife (done 
 in contract, 332 
 common law non-liability to, 330, 332, 429 
 exceptions, 330, 429 
 
 liability in equity to have, brought in respect of separate estate, 331 
 statutory liability : under the Divorce Acts, 331 
 under M. W. P. Act, 1870, 331, 429 
 under M. W. P. Act, 1882, 264, 283, 332, 429 
 Act introspective as to, 429 
 reasons for her liability, 361 
 
 damages recoverable out of her separate estate, 273, 283, 409 
 liability to have, brought against her alone in respect of ante-nuptial 
 
 debts and liabilities, 264, 265 
 by her husband in respect of her separate property for post-nuptial 
 liabilities to hun, 424 
 in tort. (See above in contract.) 
 under M. W. P. Act, 1882, 283, 334, 359 
 damages recoverable out of her separate estate, 409 
 may be brought at option of injured party, 273 
 hy husband alone 
 
 a vrif e's contract as agent, 422. (See Contract. ) 
 
 power to bring, curtailed by M. W. P. Act, 1882, 422. (See Contract.) 
 for enticement of wife, 170 
 
 for tort to wife on basis of compensation for loss of consortium, 170, 422 
 against husband alone 
 
 for wife's contracts, 301, 428. (See Contract.) 
 
 on wife's ante-nuptial contracts and torts to extent of her assets received 
 
 by him, 258-263, 267-270, 428 
 on post-nuptial tort of wife, 270, 428 
 joint 
 
 by hushand and wife 
 in contract 
 at common law necessary in respect of wife's contracts, 419. (See 
 
 Contract.) 
 necessarily brought by, 419, 420 
 still necessary to reduce choses in action of wife married before 
 
 M. W. P. Act, 1882, 206 
 when not now necessary under M. W. P. Act, 1882, 332, 420 
 husband need not be joined for mere conformity, 420 
 joint claims may be added to separate, 420 
 in tort. (See above in contract.) 
 husband had to be joined for conformity, 333 
 under M. W. P. Act, 1882, need not be so joined, 334, 420 
 now only brought when husband and wife jointly entitled, 420, 421 
 or husband held to be a proper party, 420, 421 
 joint claims may be added to separate, 420 
 defendant entitled to set off any separate claims against, 421 
 in, wife treated as separate party from husband, 421 
 husband needlessly joining himself liable for costs, 421 
 effect of death of either party on, 421 
 against husband and wife 
 in contract 
 formerly in respect of wife's ante-nuptial contracts and liabilities and 
 
 those in her representative capacity, 258, 427 
 under M. W. P. Act, 1882, husband need not be joined for mere conformity, 
 
 172, 334, 427 
 under what circumstances husband still to be joined, 259, 266, 427 
 when husband entitled to costs as against plaintiff, 267, 427 
 in tort 
 why formerly necessary, 332, 428 
 
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904 INDEX. 
 
 ACTION— continued. 
 
 under M. W. P. Act, 1882, he need not be joined for mere conformity, 
 
 270, 334, 428 
 when he is still liable to be joined, 270, 428 
 effect of joint judgment against, 268, 428 
 joint servioe on, 428 
 joint and several claims against, 428 
 
 judgment against one is satisfied as against the other, 428 
 in the case of guardian and ward 
 
 by guardian on behalf of ward, 585, 591 
 by ward against guardian, 627 
 in the case of an infant 
 
 for recovery of land, 806. (See Limitations, Statutes of) 
 
 for mesne profits, 806. (See Limitations, Statutes of) 
 
 by, brought by next friend. (See Next Friend.) 
 
 against, appears by guardian ad litem. (See Guardian ad litem. ) 
 
 when supplemental necessary, 818 
 
 cannot make admissions in, so as to bind himself, whether plaintiff or 
 
 defendant, 810, 818 
 nor be bound by admissions of next friend, 810, 818 
 discovery by way of documents or interrogatories cannot be sought against 
 
 ;^im, 810, 818 
 proof of infancy in, 819 
 in the case of parent and child 
 
 by parent for injuries done to child, 557-564 
 against parent for injuries done by child, 564 
 as between, 554 
 to perpetuate testimony of bastardy, 567 
 of waste abolished, 627. (See Waste.) 
 
 ADEMPTION. {See Portion.) 
 
 of a legacy by a portion, 540 
 
 distinction between, and satisfaction, 541 
 
 when presumption of, arises, 540 
 
 subsequent gift to effect an, mu^t be in the nature of a bounty, 540 
 
 when subsequent sum less than the original, pro tanto only, 542 
 
 ADMINISTRATION 
 
 wife not bound after husband's death, if she did not intermeddle with, 
 
 329 
 
 letters of, could not be taken out by wife without husband's assent, 328 
 
 reasons for rule, 328 
 
 when assent dispensed with, 328 
 
 assent of husband necessary to validate her gifts and grants, 328 
 
 wife might bring an action in Ecclesiastical Court for, without husband, 
 
 329 
 though husband as a rule required to- join wife in executing proxy, 329 
 under M. W. P. Act, 1882, wife can take out, without husband's assent, 
 
 330 
 husband not now to take out, in wife's stead or name, 330 
 rij^ht of husiand of, of wife's estate 
 origin of, 231 
 
 formerly no need of, to wife's specific chattels, 231 
 though to her separate use, if undisposed of, 231 
 necessary of her choses in action, 196, 201, 232 
 such held by him as trustee for her creditors, 232 
 and of her choses in reversion, 196, 231 
 no general, where wife executrix to another, 232 ■ 
 difference between his taking jure mariti and as administrator, 232 
 when wife's executor held as trustee for him, 232 
 when double, by wife's next of kin necessary, 233 
 when granted to her next of kin rather than to his representatives, 233 
 none, where judicially separated, or wife living under a protection order, 
 
 232, 233> 354 
 if he does not appear, he may be passed over, 235 
 under 31. W. P. Act, 1882 
 
 right to, still exists, 233, 234, 236 
 
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INDEX. 905 
 
 ADMINISTRATION— co»iimM«d. 
 
 separate property held by wife as though unmarried, but not as though 
 
 he were dead, 233, 361 
 he must administer to all kinds of her property, 234, 240 
 probably purely personal, and not descendible to his representatives, 
 
 235 
 
 if dispute between him and wife as to property, grant of, to wife's next 
 of kin or creditor in preference to him, 236 
 
 usual course of, in case of will of married woman, 369 
 toidoio's rigJtt of, of husband's estate 
 
 not affected by M. W. P. Act, 1882, 237, 240 
 
 grant of, a matter of discretion, 237 
 
 usually given to widow, 237 
 
 when widow passed by, 237 
 
 effect of wife's adultery, on, 237 
 
 under the Intestates' Estates Act, 1890, 234, 239, 240 
 infant bound by decree in suit for, 665 
 
 ADMINISTRATRIX. (See Executrix and Administratrix.) 
 
 ADOPTION 
 
 not, strictly speaking, recognized in English law, 496 
 when in part recognized by Court of Chancery, 496 
 
 ADULTERINE BASTARDS 
 
 difference between spurious issue and, 568 
 
 ADULTERY 
 
 husband not bound to maintain wife if guilty of, 255 
 
 of wife living apart deprives her of authority to pledge husband's credit 
 for necessaries, 311 
 
 otherwise, where she is living with him, 311 
 
 whether husband's, disentitles him to curtesy, 218 
 
 wife's, disentitles her to dower, 230 
 
 and to administer to husband's estate, 237 
 
 unless condoned or connived at by husband to separation and mainten- 
 ance order. (See Summary Jurisdiction (Slarried IVomen) Act, 1895.) 
 
 does not, per se, bar her right to jointure, 225 
 
 ground for divorce or judicial separation, 446, 447 
 
 unless condoned, 447 
 
 husband's, ground for judicial separation, 446, 447 
 
 unless condoned, 448 
 
 incestuous or coupled with bigamy, ground for divorce, 447 
 
 evidence of husband and wife in proceedings instituted in consequence 
 of, 245, 246 
 
 wife may give evidence of her, 567 
 
 when father guilty of, deprived of custody of children, 503 
 
 when not, 504 
 
 when, of mother causes her to forfeit custody of children, 515 
 
 ADVANCEMENT 
 
 from parent to child 
 
 what is, 653 
 
 object of, 654 
 
 difference between maintenance and, 653 
 
 of larger import than maintenance, 653 
 
 not limited to infancy, 653, 654 
 
 parent cannot claim in respect of, to children, 654 
 none, out of a legacy subject to a conditional gift over to a stranger, as a 
 
 rule, 654 
 powers of court as to, larger than those of trustees, 654 
 vnder a power , 
 
 terms of, to be strictly carried out, 655 
 
 what is a proper, 655 
 
 when power discretionary, 655 
 
 Digitized by Microsoft® 
 
906 INDEX. 
 
 ADVANCEMENT— coMitiiued. 
 in the absence of a power 
 
 such as would be authoriaed by the Court, 656 
 
 what is a proper, 656 
 application for order 
 
 Tiow made, 656 
 
 when by ordinary summons, 656 
 
 when by originating summons, 656 
 
 obtained by widow expires on her second marriage, 657 
 
 by two trustees does not expire on death of one, 657 
 
 ADVANCES "BY WAY OF PORTION." {See Portion.) 
 
 AFFINITY 
 
 what is, 79 
 
 AFTEB-ACQUIEBD PROPERTY 
 covenants to settle 
 
 by wife, 133-139. (See Settlement.) 
 effect of M. W. P. Act, 1882, on, 135, 792 
 by husband, 132, 139, 140. (See Settlement.) 
 liable to make good wife's post-nuptial ei^agements. (See Contract by 
 Married Women; Liability; Separate Estate.) 
 
 AGENT, 
 
 married woman as , 
 
 for husband, 279, 280, 301-316, 827. (See Contract; Necessaries.) 
 
 her agency a question of fact, 279 
 
 in respect of necessaries ordered by her for child, 520 
 
 her trade is presumed to be that of husband, 317 
 
 their joint trade is presumed to be that of husband, 317 
 
 not liable for her contracts as under M. W. P. Act, 1882, 284 
 
 no presumption of agency where she executes negotiable instruments in 
 her own name, 284 
 
 can bind husband in respect of her frauds, 269 
 
 on divorce, no longer for husband, 520 
 for third persons, 279, 300, 301 
 
 under M. W. P. Act, 1882, 284, 301 
 
 under M. W. P. Act, 1893, 289-291, 301 
 
 onus of proof of on her, 290 
 in case of parent and child 
 
 when child can bind father as, in respect of torts, 564 
 in case of master and servant 
 
 when servant can civilly bind master as, 875-888. (See Master; Servant.) 
 
 when criminally, 888, 889 
 
 AGREEMENT, 
 
 in consideration of marriage must be in writing, 143, 144 
 
 written after marriage in pursuance of an ante-nuptial parol, a sufficient 
 
 memorandum, 144 
 for separation, 434-446. (See Separation Deed.) 
 
 AGRICULTURAL HOLDINGS ACT, 1883, 
 
 married woman may exercise powers under, as a, feme sole, 195 
 power of County Court judge under, when landlord or tenant an infant 
 without a guardian, 684 
 
 ALIMONY, 
 
 ordered by the Divorce Court, 165, 441, 442 
 
 payment of sufficient, bars wife of authority to pledge husband's 
 
 credit, 311 
 non-payment renders husband liable for wife's debts of necessity, 312 
 not separate property which wife can anticipate, 287 
 
 ANTE-NUPTIAL DEBTS. (See Debts of Wife.) 
 ANTE-NUPTIAL SETTLEMENT. (See Settlement.) 
 
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INDEX. 907 
 
 ANTICIPATION. (See Bestrahd upon Anticipation.) 
 
 APPEARANCE, 
 
 practice in default of, by infant, 8i6 
 
 APPOINTMENT, 
 
 of guardians. (See Gtiardian.) 
 power of. (See Fmoer of Appointment.) 
 
 APPRENTICE, 
 
 contract of hiring and service hy, 753, 841-850 
 
 definition of, 842 
 
 in the nature of a necessary, 753-843 
 
 father has no common law right to bind child as, 755 
 who may he parties to 
 
 infant master, 755, 842 
 
 married woman mistress, 842 
 
 alien trader, 842 
 
 partners, 843 
 
 infant, 754, 932 
 
 sureties for, whether parents or guardians, 756, 842 
 
 parish, 755, 844 
 
 youthful offenders, 756, 844 
 general requisites 
 
 master and, must be parties to agreement, 755, 843, 845 
 
 must be in writing, 754, 845 
 
 consideration to be set forth, 845 
 
 proper stamp, 845 
 
 must not be disadvantageous to, 754, 845 
 
 possibility of better terms does not render necessarily disadvantageous, 
 754 
 
 where strike and lock-out clauses render agreement unenforceable 
 against, 755, 846 
 covenants of 
 
 independent, 843, 849 
 
 cannot be sued on, 754, 756, 842, 843 
 
 exception, 756, 842 
 
 or restrained by injunction, 755, 842, 850 
 
 until after majority, 755, 843 
 
 may on majority ratify or disaffirm, 756 
 
 assignment and turning over of, 847 
 rights of the master, 757, 846 
 duties of the master, 846 
 remedies of the master 
 
 summary proceedings against, 755, 842, 850 
 rights of the, 847 
 duties of the, 848 
 dissolution of contract of apprenticeship 
 
 on what grounds, 848-850 
 
 on death of, or of master, premium not returnable, 848 
 
 APPROPRIATION, 
 
 of fund by executor to meet legacy due to an infant, when binding, 692 
 when not binding, 692 
 by the Court, 692 
 
 ARBITRATION, 
 submission to 
 
 of married woman revoked by marriage, 242 
 
 ARREARS, 
 
 of separate estate 
 
 on separate property, 348 
 
 when wife entitled to recover, of separate income taken by husband 
 
 without her consent, 367 
 when she is not entitled, 367 
 
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908 INDEX. 
 
 ABREAES — continued. 
 
 restrained, not paid into hands of married woman not chargeable with 
 her debts, &c., 380, 381 
 of pin money 
 
 wife cannot claim for more than a year's, preceding death of husband, 
 405. (See Pin Money.) 
 
 ARTICLES. (See Marriage Articles.) 
 
 ASSAULT, AGGRAVATED, 
 
 conviction of husband of, on wife. (See Summary Jurisdiction {Married 
 Women) Act, 1895. 
 
 ASSETS, 
 
 when husband's marshalled in favour of wife, 407 
 
 wife's, received by husband, render him liable pro tanto for her ante- 
 nuptial liabilities, 259-263, 268, 273, 275 
 
 ASSIGNMENT AND TURNING OVER, 
 of apprentice, 847 
 
 ATTORNEY, 
 
 infant cannot be an, 714 
 
 appointment of, by a married woman, though an infant, good under the 
 Conveyancing and Law of Property Act, 1881, 725 
 warrant of, 
 
 by infant void, 722«, 725 
 
 exception in case of admittance to copyhold land, 594 
 
 by single woman revoked by marriage, 242 
 
 AVOIDANCE, 
 
 of acts and contracts of infants 
 what is, 766 
 
 of matters of record, 767 
 of matters in pais, 767 
 
 must be within reasonable time after attaining majority, 767 
 of contract of service in a proper manner, 768 
 privilege of, personal to infant and his representatives, 768 
 when infant entitled to recover money paid, 768, 769 
 when not, 769 
 of marriage settlement by wife, 773 
 
 BANBURY PEERAGE CASE, THE, 
 
 answers of the judges in, 481, 482 
 
 BANKRUPT, 
 
 in the case of an infant, 
 
 cannot be adjudicated, 736 
 
 except possibly for necessaries, 736 
 
 or where he has fraudulently misrepresented his age, 763 
 
 personal appearance of, material, 763 
 
 not liable under the Debtors Act, 1869, 737 
 
 cannot present a petition to adjudicate debtor a, 737 
 
 probably able to issue a debtor's summons, 737 
 in the case of a married looman, 
 
 at common law incapable of being made, 318, 335 
 
 in equity also incapable, 291 
 
 even after she became a widow, 291 
 under M. W. P. Act, 1882, 
 
 liability to be made in respect of separate trade, 289, 318, 319, 358 
 
 trade must be carried on altogether apart from husband, 289, 319, 335 
 
 restraint imposed by herself ineffectual againt Bankruptcy laws, 319 
 
 restraint imposed by a stranger effectual, 379 
 
 bankruptcy notice cannot be served on her, 319, 335 
 not compellable to execute deed in exercise of a general power of appointment 
 in favour of a trustee, 319 
 
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INDEX. 90!) 
 
 BANKRUPT— cojrf inued. 
 
 her life interest in unrestrained property passes to her trustee, 320 
 liability of, to penal provisions of the Debtor's Act, 1869, 319, 336 
 
 BANKRUPTCY, 
 
 when husband's settlement void on his, 139 
 
 property settled on him to go over on his, must divest absolutely, 140 
 
 on, of husband trader wife's loan postponed till creditors paid in full, 
 
 298. {See Loan.) 
 when wife's settlement void on her, 141 
 fraudulent settlement an act of, 155 
 
 wife's equity to a settlement enforced against husband on his, 208 
 also against his trustee or general assignee, 208 
 notice cannot be issued against married woman, whether carryiag on 
 
 separate trade or not, 319, 335 
 receiving order in, against a firm in which an infant is partner, 741 
 of master puts an end to contract of apprenticeship, 849 
 but not necessarily of domestic service, 864 
 priority of servant's wages on, 864 
 or insolvency ground for superseding a testamentary guardian, 620 
 
 BANKRUPTCY ACT, 1883, 
 
 meaning of settlement under, 139 
 
 settlements affected by, 160-162. (See lievocatioa and Setting aside of 
 Settlements.) 
 
 BANNS, 
 
 meaning of the term, 91 
 jmblication of, 
 in England, 
 
 rendered compulsory by Lord Hardwicke's Act, 20, 91 
 
 except for marriages of Jews and Quakers, 91 
 
 must be due and proper, 91 
 
 nullity result of wilful intermarrying without due, 91 
 
 both parties must concur in fraud, gr 
 
 when marriage invalid without, 93 
 
 true names, 91 
 
 names by repute, 92 
 
 total variation in names, 92 
 
 partial variation in names, 93 
 
 mode of, 93 
 
 notice where parties live in different parishes, 93 
 
 where living in extra parochial places, 93)1 
 
 after marriage on, no proof of actual dwellings of the parties neces- 
 sary, 94 
 
 power of clergy to demand notice of names and residence, 94 
 
 null and void after open dissent of proper parties, 87, 88, 94 
 
 valid where dissent not expressed before marriage, 88 
 
 republication, if marriage not had within three months, 95 
 
 difference between, and common licence as to necessity for accuracy of 
 names, 96 / 
 
 in Ireland, 
 
 where parties are members of the Episcopalian Church, 47 
 
 where parties Roman Catholics, 49 
 
 where parties Presbyterians, 50 
 in Scotland, 
 
 how made, 26 
 
 residence of sirweeks in parish necessary for, 26 
 
 where parties members of the Established Church, 26 
 
 where parties members of the Episcopalian Church, 26 
 
 where parties members of other dissenting bodies, 27 
 
 BASTARDS. (See Illegitimate Children.') 
 
 BASTARDY, , . ^ . .^, ^ 
 
 admissions by deceased person as to his, admissible, 567 
 action to perpetuate testimony of, 567 
 
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910 INDEX. 
 
 BABTARDY— continued. 
 
 in pedigree oases, what statements as to, of child admissible, 567 
 proceedings in 
 
 personal service of summons on putative father, 579 
 
 order of justices in, on father, 580 
 
 duration of order, 580 
 
 right of appeal of father against order, 580 
 
 no right of appeal on part of mother, 580 
 
 mother may make any number of applications within statutory period, 
 
 580 
 rights of English and Scotch parents in, 580/1 
 
 jurisdiction of justices in, does not extend to bastards born abroad, 580 
 what the term " single woman " includes, 580 
 
 BENEFICE, 
 
 infant patron can present to, 729 
 guardian cannot present to, 591 
 
 BETTING AND LOANS (INFANTS) ACT, 1892 
 
 sending document inciting an infant to bet is a misdemeanour, 806 
 a new promise on attaining majority to pay a void loan contracted during 
 . infancy void as against all persons, 806 
 
 BIGAMY, 80-84. (See Previous Marriage.) 
 
 BILL OF EXCHANGE 
 of infant 
 
 drawn or accepted or indorsed by, void, 726, 752 
 
 even for necessaries, 726, 752 
 
 unless perhaps, guilty of express fraud, 726 
 
 acceptance of, formerly capable of ratification, but not now, 726 
 
 acceptor bound to prove acceptance in his infancy, 726 
 
 infant may bring action on, 726 
 
 acceptance by adult binding, though, drawn during infancy, 726 
 of married woman, 284, 302 
 
 a chose in action, 198 
 
 formerly not binding on her at law, 284 
 
 rendered separate property liable in equity, 283 
 
 might formerly have accepted for husband in her own name, 302 
 under M. W. P. Act, 1882, 
 
 cannot bind husband unless expressly authorized, 302 
 
 her agency must appear on face of, to shift liabiUty, 302 
 
 her authority a question of fact, 279, 303 
 
 new presumption against, in respect of, 279, 303 
 
 primd facie liability on, 284, 302 
 
 BILL OF SALE, 
 
 husband and wife may grant a, to each other, 300 
 
 infant cannot grant a, 739 
 
 voluntary settlement of personal chattels to be registered as a, 162 
 
 BOAED WAGES, 
 
 what are, 865 
 
 servant not entitled to, on discharge, unless agreed for, 866 
 
 even if summarily dismissed, 866 
 
 BOND, 
 
 between husband and wife formerly good in equity, 243 
 
 ante-nuptial, not affected by marriage under M. W. P. Act, 1882, 243 
 
 infant cannot give a valid, if with a penalty, 725, 746 
 
 even for necessaries, 725 
 
 for necessaries without penalty good, 746 
 
 good under the Customs Act, 728 
 
 BOEOUGH ENGLISH, 
 
 dower of lands by custom of, 220 
 
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INDEX. 911 
 
 BKEACH OF PEOMISE OF MARRIAGE, ACTION FOR 
 historical sketch of, H2 ' 
 
 contract to marry must be mutual, 1 13 
 and to marry within reasonable time, 113, 114 
 
 damages in compensation for loss of positive advancement in world im 
 sentimental damages may be given, 114 ^ 
 
 also for seduction, 114 
 
 corroboration of plaintiff's evidence of contract necessary 1 1 c 
 promise to marry within Infants Relief Act, 1874, u6, 7k 744 76 j 
 jnfantmay maintain, against adult, 1 16 ' /j > /'t'n / j 
 
 new promise after majority must be unconnected with promise made 
 durmg infancy, 116 t- » o 
 
 promise not within Statute of Frauds, n6 
 wiU not lie by or against executors, 117 
 when special damage must be alleged, 117 
 defences to, 11 7-1 19 
 
 BREACH OF TRUST, 
 ante-nuptial of wife 
 liability of husband for, 
 
 at common law full during coverture, 273 
 
 none on dissolution, unless he had intermeddled, 273 
 
 under M. W. P. Act, 1874, partial during coverture, 273 
 
 under M. W. P. Act, 1882, none unless he has intermeddled 27^ 27c 
 liability of wife for, ^ 
 
 at common law none during coverture, 274, 275 
 
 arose on surviving her husband, 274, 275 
 
 sole, under M. W. P. Act, 1882, unless he has intermeddled, 274, 27? 
 post-nuptial of luife, 
 
 liability of husband for, 
 
 at common law full during coverture, 274 
 
 after death of wife, only as her administrator, 274 
 
 in equity to the amount of trust funds misapplied by him or her, 274 
 
 none under M. W. P. Act, 1882, unless he has intermeddled, 275, 327 
 liability of wife for 
 
 at common law none, 275 
 
 arose on termination of coverture, 275 
 
 sole, under M. W. P. Act, 1882, unless he has intermeddled, 275, 276, 
 327 
 
 her property not liable for, if subject to restraint, 381, 385 
 
 except under Trustee Act, 1893, when instigated by her, 385 
 acquiescence in, by married woman, 
 
 disentitled her in equity to relief, 386, 387 
 
 unless obtained by undue influence, 387 
 
 right of trustee's retainer, where she is party to the breach, 387 
 
 where her property is subject to restraint, passive, does not disentitle her 
 to relief, 387 
 
 but active does, 387 
 
 duty of trustee to protect his cestui que trust, 387 
 of guardian. (See Guardian. ) 
 
 cannot be authorized by infant ward so as to bind him, 703 
 
 infant not liable for his, 714 
 
 unless in the nature of a tort, 714 
 
 or acquiesced in after majority, if of a continuing nature, 714 
 
 BURGLARY, 
 
 offence of, 899 
 
 may be committed by servant living in master's house, 899 
 
 the breaking need not be from the outside, 899 
 
 CAMPBELL'S ACT, LORD, 
 
 right of husband and wife under, 
 
 mutual, to bring action when injured by death of the other, 171 
 actual or reasonable expectation of pecuniary loss necessary, 171 
 must be brought within year of the death, 171 
 funeral expenses not recoverable, 171 
 
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912 INDEX. 
 
 CAMPBELL'S ACT, hOnD— continued. 
 
 nor sentimental damages, 171 
 
 deceased may have contracted out of benefits under, 172 
 
 wife loses rights under by adultery, 172 
 rights of parent and child under, 
 
 parent may bring action, when injured by death of child, 562 
 
 child may bring action, when injured by death of parent, 563, 564 
 
 child en ventre so, mere within, 563 
 
 proof of damage, 563 
 
 services must arise out of relationship and not out of contract, 563 
 
 declaration of title under, 564 
 
 proof of damage, 563 
 
 funeral expenses not recoverable, 564 
 
 bastards not within provision of, 562, 572 
 right of servant's representatives to bring action under, against master, 874 
 
 CANON LAW, 
 
 operation of, on marriage, 13 
 
 full effect of, never allowed in England, 15 
 
 foundation of Irish marriage law, 48 
 
 CANONICAL HOURS, 
 for marriage, 
 
 from 8 A.M.. to 3 P.M. 98 
 
 except under special licence, 98 
 
 same, for marriages in the presence of the registrar, 102 
 
 CAPIAS AD SATISFACIENDUM, 
 
 married women liable to arrest under, 330, 337, 433 
 
 CATCHING BARGAINS, 
 
 transactions in fraud of parental rights, 548 
 
 persons in loco parentis protected, 548 
 
 when set aside, 548 
 
 equity of the heir true ground of relief, 548 
 
 grounds for setting aside, 549, 550 
 
 mere undervalue not conclusive proof of fraud, 550 
 
 CAVEAT, 
 
 entry of, against grant of ordinary's licence, 96 
 against grant of superintendent registrar's certificate, 100 
 against grant of superintendent registrar's licence, 100 
 against grant of marriage officer's certificate in the case of foreign 
 marriages, 109 
 
 CERTIFICATE, 
 
 of superintendent-reqistrar, 
 
 marriage on, in Mngland, 22, 97, 99, 100 
 
 clergy of Church of England not bound to marry on, 97 
 
 seven days' residence in district of, required before application for, 99 
 
 proper notice to be given to, 99 
 
 declaration accompanying notice, 99 
 
 notice to be suspended in office, 100 
 
 not to be granted till expiry of twenty-one clear days, 100 
 
 caveat may be lodged against grant of, 100 
 
 validity of, for three months, 100 
 
 difference between, and licence, loi 
 
 false statements in declaration equivalent to perjury, 99 
 marriage on, in Ireland, 
 
 clergyman bound to marry on, 47 
 
 necessary for mixed marriages, 56. (See Mixed Marriages.) 
 
 differences between English and Irish formalities in application for, 54 
 marriage on, in Scotland, 25, 27 
 
 formalties to be observed, 27 
 
 of equal force to that of session-clerk's, 27 
 
 minister of Established Church not bound to marry on, 28 
 
 validity of, for three months, 28 
 
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INDEX. 913 
 
 CHANCEEY, COUBT OF, 
 
 separate estate, a creation of, 342. (Sea Se2>arate Estate.) 
 jurisdiction of, over infants, 502-512 
 origin of, 501, 602, 780 
 no inherent, to compel them to make binding marriage settlements, 771, 
 
 776 
 over those domiciled abroad if British subjects, 605, 607, 784 
 over its wards, 785-799. (See Ward of Court.) 
 
 generally requires settlement of some property on, before taking up ward- 
 ship, 501, 602, 783 
 property not necessary to exercise of, purely protective power, 602, 784 
 over marriage of infants, 21, 784 
 over settlements of infants. (See /Settlements of Infants, Marriage; Ward of 
 
 Court.) 
 questions touching infants assigned to, 497, 498, 781 
 its principles are to prevail, 498 
 how enforced. (See Contempt of Court.) 
 over parents. {See Father ; Mother; Farents.^ 
 
 interference with father's control over child under its original, 503, 504. 
 
 (See Father.) 
 under its statutory, in favour of mother, 506-511. (See Mother.) 
 parent may have recourse to, by way of application to recover child, 
 
 498, 499 
 or for writ of habeas corpits, 496, 498 
 
 when application for recovery preferable to writ of habeas corpm, 499 
 over giuirdians, 602-607, 614.-61^. (See Guardian.) 
 
 to act as a wise, affectionate, and careful parent, 502 
 foreign guardians. (See Guardians, Foreign.) 
 
 CHAKACTER OF SERVANT, ' 
 
 master net bound to give, 851 
 
 given bonAfide a privileged communication, 851 
 privilege 
 
 duty of master to state truth honestly and fairly, 852 
 
 facts learnt after discharge of servant may be stated, 853 
 
 even where former master courts enquiries, 853, 854 
 
 where new master writes to former as to servant's conduct, 854 
 
 not taken aAvay where defamatory words spoken before interested third 
 person, 855 
 malice 
 
 must be express, 854 
 
 what is malice in law, 854 
 
 onus of, on plaintiff, 855 
 
 falseness of the charge without, insuflScient, 855 
 
 evidence of, must be clear, 855 
 
 how established, 856 
 
 when established, privilege disappears, 855 
 knowingly giving a false character, if damage ensue actionable, 858 
 uttering forged testimonials a misdemeanour, 858 
 
 CHASTISEMENT, 
 
 husband has no right of, over wife, 169 
 
 parent has right of moderate, over child, 492 
 
 master has right of moderate, over apprentice, S46, 860- 
 
 none over domestic servant, 860 
 
 CHATTELS REAL. (S,ee Leases.) 
 
 of husband 
 
 in his own, 184 
 
 of wife's non-separate 
 
 husband's interest in, 184 
 
 husband not a purchaser of, 184 
 
 husband's disposition of, 185 
 
 his assignment of, absolute, or by way of sublease or mortgage, 185 
 
 his testamentary disposition of, ineffectual agair.st wife surviving, 196 
 
 jeffect of M. W. P. Act, 1870, upon his interest in, 185 
 
 effect of M. W. P. Act, iSSa, upon his interest in, 185 
 
 3M 
 
 Digitized by Microsoft® 
 
914: INDEX. 
 
 CHATTELS Vl^Ah— continued, 
 eeparate 
 
 husband had no interest in, 196 
 
 his interest inter vivos in, taken away byM. W. P. Act, 1882, 185 
 his interest in, revives on taking out letters of administration to wife's 
 estate, 231 
 
 CHATTELS (SPECIFIC) 
 iinfe'8 
 
 marriage operated as a conveyance of, to husband, 122, 179, 196 
 difference between rights of husband over, and her choses in action, 197, 
 
 233 
 effect of M. W. P. Act, 1882, over, 196 
 husband and wife may pass, to each other by mere delivery, 300 
 possession of, follows the title, 300 
 
 CHILDREN 
 legitimate 
 
 those born in lawful wedlock, 475, 566 
 those born in wedlock, primd facie, 475, 476, 566 
 domicil of, 486, 487. (See Domicil. ) 
 
 custody of, 491-515. (See Oustody and Control of Children.) 
 custody of, under separation deed, 445, 508, 509 
 advancement of, 543-545, 653-657. (See Advancement ; JFortions.) 
 rights of 
 
 to be supported by parents. (See Parents.) 
 
 to be emancipated, 552, 553. (See Emancipation.') 
 
 to earnings, 531, 533. (See Earnings.) 
 
 under Lord Campbell's Act, 564 
 
 no absolute right of inheritance to parent's property real or personal, 
 
 554 
 under the Statute of Distributions, 554. (See Distributions, Statute of.) 
 
 •duties of 
 
 to support parent, a moral obligation only, 551, 552 
 except where parent becomes chargeable, if of ability, 552 
 difference between liability of parent and, in respect of support, 552 
 
 ■suits between child and parent, 
 
 right of, to bring action in respect of dealings with his property, 554 
 
 whether in respect of personal violence, qucere, 555 
 
 proper remedy in such a case, 555 
 
 ■when of age, may bring, for other personal torts, 555 
 
 gifts and transactions between parent and, 539-548. (See Oifts.) 
 
 when child can bind parent as agent in respect of his torts, 564 
 
 illegitimate. (See Illegitimate Children. ) 
 
 " child " in a bequest means primd facie legitimate child, 569, 570 
 
 cruelty to. (See Prevention of Cruelty to Children Act, 1894.) 
 
 CHOSES IN ACTION 
 in possession 
 wife's 
 difference between husband's rights over, and over her specific chattels, 
 
 197, 198, 233 
 what are, 198 
 ■what are not, 199 
 busband entitled to, antenuptial or post-nuptial, if reduced into possession 
 
 during coverture, 199 
 210W reduced into possession, 199. (See Beduction into Possession.) 
 husband not entitled, if not so reduced into possession, 198, 199 • 
 if not so reduced, husband must take out letters of administration at 
 
 death of, 201, 206, 240 > 
 
 tis right of suing for, 197 
 
 effect of judicial separation or protection order on his interest in, 199 
 efectofM. W. P. Act, 1870, o», 198 
 efect ofM. W. P. Act, 1882, on 
 
 interest of husband married after the Act taken away, 198, 206 
 if married, and her title to, accrued before Act, he can reduce into 
 possession, 198, 20t, 205 
 
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INDEX. 915 
 
 CHOSES IN ACTION— contmved. 
 
 if not disposed of by wife, he may administer to, 206 
 interest of wife in, 206 
 her right to by survivorship, 203 
 valid gift of, between husband and wife under Conveyancing Act, 1881, 292 
 
 CHOSES IN EEVEESION. {See Seversionary Property.) 
 
 CIVIL IMPEDIMENTS TO MARRIAGE. (See Impediments to Marriage.) 
 
 CLANDESTINE MARRIAGE, 
 
 former effect of, in England, 13, 16 
 
 prevention of, by Lord Hardwicke's Act, 19 
 
 inorderly marriage in Scotland, 29-37. (See Scotland, Marriage Laws of.y 
 
 CLERGYMAN, 
 
 presence of, in holy orders at marriages formerly enforced in England, 
 
 IS. 23-27 
 
 now no longer necessary, 28, 99 
 except in Church of England marriages, 15, 97 
 cannot perform his own marriage ceremony, 97 
 marriages by person pretending to be, 97 
 Marriages Validation Act, 1888, 98 
 
 COAL MINES REGULATION ACT, 1887, 
 provisions of, 807 
 
 COERCION, 
 
 presumption of wife's by husband in the lesser crimes, 173. (See 
 
 Criminal Law.) 
 presumption rebuttable, 174 
 
 COHABITATION 
 
 common law right of husband to control and custody of wife, 168-170 
 
 how enforced, 169, 170 
 
 mutual right of, in husband and wife, 170 
 
 when not enforceable, 170 
 
 when either may maintain action for its interruption, 171, 172 
 
 temporary interruption of, not inconsistent with ricrht of, 172 
 
 presumption of right to pledge husband's credit for necessaries arises 
 
 from, 304, 306. (See Necessaries ; Contract. ) 
 presumption rebuttable, 305 
 mere fact of, under M. W. P. Act, 1882, will not raise presumption of 
 
 intermeddling by husband with wife's trusts, &c., 207 
 <igreement for, 
 
 whether by deed or by simple contract based upon future, void, 577 
 
 by deed based on past, valid, 577 
 
 by simple contract based on past, void, 577 
 
 where child to be supported, valid, 578 
 
 rebuts presumption of contract of service, 832 
 
 COLONIES, 
 
 marriages in, 1 1 1 
 
 COMMON EMPLOYMENT, 
 meaning of, 870 
 what is not, 870 
 
 defence of, good in the case of domestic servants, 869 
 when master not liable for injuries inflicted by fellow servants, 871-873; 
 when liable, 873, 874 
 test of liability of master, 870 
 
 COMMON OR ORDINARY'S LICENCE. (See Licence.) 
 
 COMPANY. (See Shareholder; Shares.) 
 
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916 INDEX. 
 
 CONDITIONS, 
 
 infant bound by, annexed to property, 728 
 if incapable of performance, estate lost, 728 
 exception, 728 
 
 infant not bound by, to pay rent, if not in possession, 728 
 infant bound by, to marry or not to marry a particular person, 72S 
 in restraint of marriage 
 generally invalid, 7 
 
 common law rule as to, less stringent than civil, 7 
 civil law derivation of the rule, 7 
 
 not directly or indirectly enjoining celibacy valid, 8-10 
 ■what, deemed valid, 9 
 precedent affecting realty good, 9 
 precedent affecting personalty, with gift over good, 9 
 subsequent, without gift over generally void, 9 
 effect of gift over, 10 
 not to marry a second time good, 10 
 to obtain consent of particular person good, 9, 10 
 difference between, and limitation until marriage, 10 
 providing for future separation between husband and wife bad, 1 1 
 
 CONSANGUINUITY, 
 what is, 78 
 
 CONSENT OP PAETIES, 
 
 necessary ingredient to valid marriage, 13, 65 
 
 want of, to marriage contract, renders marriage voidable, 66 
 
 error, 67, 68. (See Error.) 
 
 fraud, 68-70. (See Fraud.) 
 
 duress or force, 70-73. (See Duress.) 
 
 CONSENT OF PROPER PAETIES, 
 
 made statutory requisite for marriage of infant, 87 
 
 father, or guardian, 21, 87, 492, 501 
 
 mother, 88, 492, 501 
 
 guardian appointed by Court of Chancery, 88 
 
 how wards of Court appointed, 88 
 
 formal consent of proper person not necessary, 88 
 
 may be given at ceremony, 88 
 
 must be honestly given, 493 
 
 no advantage to parent must accrue from, 493 ^ 
 
 want of, does not invalidate marriage, 21, 88 
 
 forfeiture of property under Geo. IV. u. 76, s. 23, 21, 89 
 
 usual settlement where minor is a female, 90 
 
 in the case of bastard minors, 89 
 
 CONSPIRACY AND PROTECTION OF PROPERTY ACT, 1875, 
 liability of master for support of servant under, 867 
 husband and wife competent witnesses in cases under, 867 n 
 
 CONSTRUCTION OF SETTLEMENT. (See SettUment.) 
 
 CONSUL. 
 British, 
 
 marriages in ofiBcial house of, 108. (See Foreign Marriages.) 
 
 CONTEMPT OF COURT, 
 what is, 617 
 
 marriage of ward without leave is a, 789, 795 
 attempt to marry is a, 787 
 
 attempt to delay marriage to oust jurisdiction is a, 794 
 powers of the Court in, 787 
 punishment of, 790, 795 
 aggravation of, 789, 795, 797 
 mitigation of, 789, 795 
 
 ignorance of fact of wardship no defence, 789 
 contemner compelled to execute settlement, 790, 795 
 
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INDEX. 917 
 
 CONTEMPT OF COVRT— continued. 
 terms of the settlement, 791 
 taking wards out of the jurisdiction is a, 617, 630, 796-799 
 
 CONTINGENT INTEREST. 
 
 whether married woman oould formerly dispose of her, in realty. 
 
 36s, 366 
 may do so now unless restrained, 366 
 
 might dispose of her, in separate personal property, 366, 369 
 maintenance out of property subject to, not generally allowed to infant, 
 
 641,654 
 except where interests of those entitled over are secured, 641 
 conveyance of infant's, under Trustee Act, 1850, 729 
 
 CONTRACT, 
 
 meaning of, in M. W. P. Act, 1882, 283, 329, 417 
 of a married woman, 
 with hv^hand, 
 
 common law, incapacity to, 291 
 capacity in equity, 291 
 or where at arm's length with him, 291 
 under M. W. P. Act, 1882, full power to, 176, 291 
 gifts between husband and wife,, 292-297. (See Oifts.) 
 loans between husband and wife, 297-300. (See Loan.) 
 with third persons, 
 
 common law incapacity to, 278, 300 
 except as husband's agent, 279, 300. (See Necessaries.) 
 capacity to bind her real estate with his consent, 281 
 ■or without his consent, if dispensed with, 28 1 
 in exercise of a power of appointment, 281. (See Power.) 
 capacity to, when he was eiviliter mortuus, 279 
 or alien enemy, 279 
 
 or she carried on trade as a freeman's wife in the City of London, 279 
 or on dissolution of marriage, 281 
 dn equity, 
 
 capacity to, recognized, 280, 281. (See Separate Estate.) 
 presumed to be in respect of separate property, 281 
 with express reference to separate property, 281 
 with implied reference to separate property, 281 
 on her general engagements, 281 
 
 existence of free separate property at time of, necessary, 280 
 ■statutory capacity to 
 
 under Divorce Acts, 281, 282. (See Judicial Separation ; Protection Order; 
 
 Summary Jurisdiction {Married Women) Act, 1895.) 
 under M. W. P. Act, 1870, 282 
 under 21. W. P. Act, 1882 
 wide power to, 282, 358 
 existence of free separate property at time of necessary, 282, 286, 335, 
 
 396 
 ■new presumption against her of contracting with respect to separate 
 
 property, 283, 358, 425 
 •effect of presumption as regards husband and general creditors, 284 
 as affecting her negotiable instruments, 284 
 her liability in assumpsit, 285 
 presumption must be reasonable, 287, 391 
 -when not made against her, 2S7 
 when her agency proved, 284 
 except on behalf of an undisclosed principal other than her husband, 
 
 284 
 in respect of necessaries where living apart from husband, but with 
 
 separate property, qucere, 285 
 under M. W. P. Act, 1893 
 
 existence of free separate property not necessary, 289, 290, 336, 363, 383, 
 
 397 
 increased presumption against her, 289 
 
 onus of proof of separate estate no longer on creditor, 290 
 
 onus of proof of agency on her, 290 
 
 Digitized by Microsoft® 
 
!U8 INDEX. 
 
 CONTRACT— contmued 
 
 of married woman as agent 
 for husband, 
 
 as for a principal, 302 
 express authority, 301 
 implied authority, 302 
 agency a question of fact, 279, 303 
 authority revoked by death of, 303 
 or where he forbids her to pledge his credit, 308, 309 
 she can bind him though he be a lunatic, 303 
 for necessaries, 303-316. (See Necessaries.) 
 presumption of agency arises from cohabitation, 303 
 authority to pledge his credit when living apart not taken away by 
 M. W. P. Acts, 1882 and 1893, 316 
 for third persons 
 
 valid at common law, 301 
 under M. W. P. Act, 1882, 301 
 
 wider power of and liability for, under M. W. P. Act, 1893, 301 
 ante-nvMtial of married woman 
 liability of husband far 
 at common law, 258 
 
 cesser of, with termination of coverture, 258 
 under M. W. P. Act, 1870, 259, 427 
 under M. W. P. Act, 1874, 259, 260, 427 
 under M. W. P. Act, 1882, 260-263, 266, 267, 427 
 her own 
 
 at common law after termination of coverture, 263 
 
 sole under M. W. P. Act, 1870, 263 
 
 notwithstanding restraint upon anticipation, 263 
 
 joint with husband under M. W. P. Act, 1874, 264 
 
 primA facie as regards her separate estate, 264, 265. (See Separate 
 
 Estate.) 
 primAfade for, in a representative capacity, 265 
 post-nuptial 
 
 liability of husband for 
 
 at common law, 300. (See Necessaries.) 
 under M. W. P. Acts 1882 and 1893, 301 
 no longer primd facie in him, 284, 301 
 
 none, if made by her in a representative capacity, if he does not inter- 
 meddle, 330 
 liability of married woman for 
 personal 
 
 for ante-nuptial, 319, 336 
 former to be taken in execution, for, 336, 337 
 now to a debtor's summons, 319, 336 
 effect of personal judgment, 337 n 
 for post-nuptial, 336 n 
 none either at law or in equity, 336 n 
 proprietary 
 in equity 
 
 ot the separate estate, 280, 335, 336 ,?i, (See Separate Estate.). 
 as to free separate property at date of the, 280, 335, 336 n, 390 
 not as to property subject to restraint upon anticipation, 280, 283. 
 (See Bestraint upon Anticipation.) 
 under M. W. P. Act, 1882, 
 wide, 283, 288, 33S 
 
 final but not unconditional judgment under Order xiv. r. i. may be 
 signed against her, 337 n 
 as to free separate property at date of, 282, 286, 335, 358, 391 
 as to free after acquired property, 283, 285, 286, 358 
 property subject to restraint not free, 287 
 property need not be of large amount, 287, 391 
 or of any particular nature, 287, 391 
 property reasonably presumed to have been contracted in respect of, 287, 
 
 391 
 
 property over which is a general power ot appointment, 392-397. (See 
 
 Fower of Appointment.) 
 such property liable for ante-nuptial, 397 
 
 Digitized by Microsoft® 
 
INDEX. 919 
 
 CONTBAOT— co»tin«€d. 
 
 amount ot liability or charge on her property, 337 
 
 inquiry, still requisite as to what her separate property consists of, 337 
 
 no restraint at suit of creditor from dealing with property, 337 
 
 not amenable to bankruptcy laws unless a separate trader, 289, 335. (See 
 
 Bankrupt.) 
 specific performance decreed against her, 289 
 UTider M. W. P. Act, 1893, 
 
 future property liable, though none possessed by her at date of, 289, 290, 
 
 336, 384. 393. 397 
 
 enforceable against her property when discovert, 363, 393 
 incidents of contractual power of married woman 
 
 separate trading, 317. (See Bankrupt ; Trade.) 
 
 to effect insurance of own and husband's lives, 321-323 
 
 partnership, 323-325. (See Partner.) 
 
 a trusteeship, 325-327. (See Trustee.) 
 
 to be executrix or administratrixj 327-330. (See Executrix and Adminis- 
 tratrix.) 
 
 to sue and be sued alone, 333. (See Action.) 
 of an infant, 
 
 distinction between "void" and "voidable," 721 
 
 " void '' often equivalent to " not enforceable against," 722 
 
 few formerly absolutely void, 732 
 void, ' 
 
 one clearly prejudicial to him, 734 
 
 under Infants' Relief Act, 1874, 734. (See Infants' Relief Act, 1874.) 
 
 trading, 744. (See Trade.) 
 
 price of things consumed by, cannot be recovered, 735 
 
 debt owed by, cannot be set off, 762 
 valid but voidable, 
 
 connected with property of a permanent or continuing nature, 735 
 
 must be avoided within a reasonable time, 740 
 
 leases by and to, 738, 739. (See Lease.) 
 
 partnership, 740, 441. (See Partner; Holding- Out.) 
 
 shareholding, 741-743. (See Shareholder.) 
 
 membership of JTriendly Societies, 743 
 
 ratification of, 758-766. (See Ratification. ) 
 
 avoidance of, 766-769 (See Avoidance. ) 
 
 may avoid, while adult bound, 720, 733 
 
 may be enforced against adult, 733 
 
 but not by specific performance, 733, 763 
 
 when bound by his fraud, 734, 763 
 
 cannot be made bankrupt in respect of, 736. (See Bankrupt.) 
 binding, 
 
 marriage, if of proper age, 75, 712, 744. {See No7i-age.) 
 
 settlement under Infants' Settlement Act, 1855, 745. (See Infants Isettk- 
 ment Act, 1855.) 
 
 fornecessaries, 745-752. (See Necessaries.) 
 
 contracts of service, 752-756, 830. (See Apprentice; Service, Contracts of.) 
 
 when based on his fraud, 734 ' 
 in the case of master and servant, 
 
 when master liable on servant's, 875-881. (See Master. ) 
 
 when not liable, 879-881 ,„ ,, ^ > 
 
 when servant liable on his master's and his own, 890, 891. (See Servant.) 
 
 CONTRACTS OF SERVICE. (See Service, Contracts of .) 
 CONTRIBUTORY, 
 
 liability of, to be made, unless repudiation of shares within a reasonable 
 
 time after majority, 742-766, 767 ;, t.u ^ r.f „ ^e,., 
 
 difference between acquiescence of a shareholder, and that ot a, 707 
 
 'married woman, j. <. „<:, „£c 
 
 formerly liable to be made, in respect of her separate estate, 265, 266. 
 
 (See Shareholder.) . , , ,. , 
 
 husband no longer liable to be made, in respest of her ante-nuptial 
 
 shares, 262, 266 
 except to the extent of assets received, 262, 266 
 
 Digitized by Microsoft® 
 
920 INDEX. 
 
 CONTRIBUTORY NEGLIGENCE. (See Negligence.) 
 
 CONTROL OF CHILDREN. (See Custody and Control of Children.) 
 
 CONVERSION, 
 
 of ward's property hy guardian, 
 of real estate, 
 
 not generally allowed, 664 
 
 reason for rule, 664 
 
 when allowed, 665 
 
 in suits for administration or by mortgagees, 665 
 
 by charging costs on the inheritance, 666 
 
 when guardians may exercise power of sale, 665 
 
 when sale directed in the absence of a power, 665 
 
 statutory powers of court in, 666-687. (See Partition Acts; Settled Estate 
 Act, 1887; Settled Land Acts, 1882 & 1890.) 
 of personal estate, 
 
 not generally allowed, 684, 687 
 
 reason for rule, 664 
 
 when allowed, 665, 687 
 
 when no equity for, in infant's real or personal representatiye, 671 
 
 when there is, 671 
 
 infant bound by trust for, 728 
 servant liable for wrongful, on behalf of master, 891 
 infant liable for fraudulent, as a bailee, 716, 737 
 
 CONVEYANCE, 
 
 of wife's lands. (See Acknowledgments to bar Wife's Interests; Separate 
 
 Estate.) 
 from one spouse to the other. (See Gifts.) 
 
 CONVEYANCING AND LAW OF PROPERTY ACT, 1881. (See Maintenance; 
 Mepairs. ) 
 
 donee of power of appointment may release interest under, 547 
 husband and wife may make valid gift of realty and choses in action to 
 
 each other under, 292 
 trustee's power of management under, 677, 678 
 practice in putting the Act in motion, 671 
 in the case of a married woman, 
 
 warrant of attorney by, though an infant, valid under, 725 
 
 receipt by, valid, 677 
 
 in application by, to remove restraint, her separate examination taken, 
 
 387, 388 
 estate of an infant in fee or in lease is settled estate, 771 
 
 COPYHOLD LANDS, 
 
 infant owner of, 
 
 how admitted, 594 
 
 liability of, to pay customary fine if he occupy, 727, 740 
 
 may validly surrender by special custom, 740 
 
 if no such custom, surrender voidable, 740 
 
 full power of guardian of, to do acts required by Copyhold Act, 687 
 
 waste of, by guardian does not entail forfeiture, 595 
 interest of husband in wife's, 
 
 he became seized of, in right of his wife, 183 
 
 formal admi.ssion not necessary, 183 
 
 effect of husband's act entailing forfeiture, lasted only for his life, 183 
 interest of wife in husband's, 221. {See Ereebench.) 
 interest of married woman in her own, 
 
 she could not dispose of them under the Fines and Recoveries Act, 189 
 
 but according to the custom gt the manor, 193 
 
 concurrence of husband to her surrender not required under M. W. P. 
 Act, 1882, 193 
 
 COPYHOLDER, 
 
 admittance of infant, 594. (See Guardians by Custom.) 
 
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INDEX. 921 
 
 .COSTS, 
 
 as hetween guardian and ward, 
 
 guardian allowed only reasonable expenses, 700 
 
 even where a solicitor, unless otherwise entitled, 701 
 
 otherwise in the case of receivers, 701 
 
 when allowed for a renewal of a lease, 680 
 in the case of an infant, 
 
 infant electing to carry on suit begun by next friend, liable for ah initio, 
 814 
 
 on dismissal of his suit, defendant entitled to, 814 
 
 on repudiation, not entitled to, as against next friend, 814 
 
 infant defendant liable for, 819 
 
 when solicitor of infant liable to pay defendant's, 809 
 
 charging, on infant's inheritance, 666 
 in the cage of a married woman 
 
 she need not now give security for, 324, 424, 426 
 
 except where being without separate property she appeals, 332, 424 
 
 or she sues by next friend, 424 
 
 even though married before M. W. P. Act, 1882, 332, 424 
 
 she is a feme sole in respect of her, 332, 424, 425 
 
 effect of restraint upon anticipation on her liability for, 332, 333 
 
 effect of M. W. P. Act, 1893, on her, 333, 426. (See M. W. P. Act, 
 
 1893-) 
 payment of, enforced by appointing a receiver, 333 
 right of set-off against her, 426 
 of action for slander imputing unchastity to her, not to exceed amount 
 
 of damages recovered, 173 
 liability of hughand, 
 
 he is liable though an infant, for, of marriage settlement, 749 
 liable if he needlessly join himself in action by her, 421 
 when for wife's legal proceedings, 3 1 5 
 "extra" can be recovered as necessaries, 315 
 quosre whether for, where wife has separate property, 315 
 under Summary Jurisdiction (Married Women) Act, 1895, 449 
 lum-lidbility of husband for 
 
 as against plaintiff in joint action against him and wife, 267, 427 
 
 in action in which he is held not liable for wife's ante-nuptial liabilities, 
 
 266 
 snch can be charged on wife's separate estate, 267 
 for indictment preferred by wife against him, 316 
 for counterpart of deed of separation, 316 
 of unnecessary petition for judicial separation, 316 
 in the case of the next friend 
 
 appointed as security for, 809 
 
 need not give security for, even on ground of poverty, 811 
 
 liable for, to defendant, 814 
 
 his, primd facie recoverable against infant, 812, 814 
 
 in the discretion of the Court, 814 
 
 liable for, if suit not beneficial, 812 
 
 on retiring must give security for, to defendant, 813 
 
 COUNCIL OF TRENT, 
 
 matrimonial decrees of, why introduced, 14 
 
 decrees of, did not obtain in Scotland, 24 
 
 of vigour in Ireland only inforo conscientiai, 48 
 
 COUNCILS OF CONCILIATION ACT, THE, 
 
 does not apply to domestic servants, 866 
 
 COUNTY RATES, 
 
 infant liable for assessment to, 727 
 
 COVENANT, 
 
 infant not bound by his, 732, 754-75° 
 
 may enforce that of the other party, if adult, 732 
 
 but not by way of specific performance, 732 
 
 Digitized by Microsoft® 
 
922 INDEX. 
 
 COVENANT— con«TOM«d 
 
 in apprenticeship deed, 754, 843. (See Apprentice.) 
 
 to settle after acquired property, 132-141. {8&e Settlement.) 
 
 of infant wife voidable, 134, 773. (See Election.) 
 
 how affected by M. W. P. Act, 1882, 135, 772 
 
 of infant husband voidable, 776 
 
 binding under Infants' Settlement Act, 1855. (See Infants' Settlement 
 
 Act, 1855.) 
 in marriage settlements by whom enforceable, 146-150 
 to Indemnify, in separation deed, when good consideration for deed, 
 
 440 
 
 COVERTURE, 
 
 meaning of term, 167 
 
 theory of the unity of the persons of the spouses, 167, 176 
 
 inroads into theory by recent legislation, 176 
 
 separate existence of husband and wife formerly recognized at law in 
 
 many cases, 168 
 proprietary rights of spouses created by, 178-214. (See Husband ; Wife; 
 
 Married Woman.) 
 personal rights of the spouses created by, 166-177. (See Husband; Wife; 
 
 Married Woman.) 
 inequalities arising out of the old theory of, 167, 168, 176 
 wife's immunities under, 173, 174. (See Criminal Law.) 
 husband liable during, for wife's post-nuptial torts, 268, 270. (See Tort.) 
 former effect of, on wife's real estate. (See Beal Estate ; Separate Estate. ) 
 as to her estates in fee or in tail, 181 
 her estates for life, 183 
 her leaseholds, 184. (8ee Chattels Beal.) 
 on wife's personal property. (See Personal Estate.) 
 disabilities of the spouses arising out of 
 
 mutual incapacity to give evidence for or against each other in criminal 
 
 matters, 243-246. (See Evidence.) 
 mutual incapacity to steal from each other, 246. (See Larceny.) 
 mutual incapacity to use each other for torts, 247. (See Tort.) 
 former incapacity of wife to hold and dispose of property no longer 
 
 exists, 249. (See Separate Estate ; Will. ) 
 former incapacity of wife to make a will no longer exists. (See Separate 
 
 Estate; Will.) 
 
 CBANWORTH'S ACT, LORD. (See Maintenance.) 
 
 CBIM. CON. 
 
 action for, abolished, 170 
 practical restoration of, 171 
 
 CRIMINAL LAW, 
 
 relation of married women to, 
 
 primd facie amenable to, 173 
 
 coercion of husband a defence in the lesser crimes, 173, 174 
 
 coercion must be active, 173, 174 
 
 when husband not present no presumption of coercion, 173 
 
 may be jointly indicted with husband for lesser crime, 174 
 
 may not be indicted for harbouring and comforting husband, 174 
 
 not responsible for his breach of duty, 174 
 
 can be guilty of larceny from husband when leaving or deserting him, 
 
 _ 174 _ 
 relation of infant to, 
 
 immunity of, under seven, 715 
 
 between seven and fourteen amenable to, if malice proved, 715 
 
 boy under fourteen cannot be guilty of rape, 716 
 
 after fourteen no presumption in his favour, 716 
 
 liable for fraudulent conversion as a bailee, 716 
 punishment of, 
 
 under Summary Jurisdiction Act, 1879, 716 
 
 under Industrial Schools Act, 1866, 716 
 
 under Reformatory Schools Act, 1866, 716 
 
 Digitized by Microsoft® 
 
INDEX. 92S 
 
 CRIMINAL 'Lky^f— continued. 
 
 relation of master and servant to, 
 
 when liable for each other's crimes, 888, 892 
 
 CRIMINAL LAW AMENDMENT ACT, 1885, 
 
 has not altered age of matrimonial consent, 75 
 
 abduction of girl under eighteen a misdemeanour, 589, 804 
 
 intent of unlawful carnal knowledge necessary, 589 
 
 girl must leave house of parent or master, 589 
 
 defence to charge, 590 
 
 reasonable cause to believe that girl was of the age of eighteen, 590,804 
 
 statute has not extended age of parental control, 590 
 
 carnal knowle(%e of girl under thirteen a felony, 804 
 
 attempt to have carnal knowledge a misdemeanour, 804 
 
 carnal knowledge or attempt to have carnal knowledge of girl abov& 
 thirteen and under sixteen a misdemeanour, 804 
 
 defence in latter offence, 804 
 
 householder permitting defilement of girl under thirteen on his premises- 
 guilty of felony, 804 
 
 of girl between thirteen and sixteen, of a misdemeanour, 804 
 
 though her parent, 804 
 
 search of premises in which girl under eighteen suspected of being 
 detained in for immoral purposes, 804 
 
 seduction of girl under sixteen, 509 
 
 where parent of girl convicted of causing, girl may be taken from his or 
 her custody, 509, 804, 862 
 
 court may regulate by order the custody of girl till majority, 510 
 
 court may rescind or vary such order, 510 
 evidence under, 
 
 admissibility of, of young children not on oath, 717 
 
 must be corroborated by other material evidence, 717 
 
 of husband and wife, 245 
 
 CRUELTY, 
 
 coupled with adultery by husband ground for divorce a vinculo, 447 
 
 alone, may entitle wife to judicial separation, 448 
 
 effect of persistent, under Summary Jurisdiction (Married Women) Act 
 
 189s. 255. 282, 448, 449, S15 
 gross acts of, towards mother and child under, render father unfit to- 
 have custody of child, 514 
 
 CURTESY, 
 
 the interest of a husband in his wife's realty, 179, 181, 208, 216, 217, 240, 
 
 771 
 initiate, iSi, 216 
 consummate, 181, 216 
 requisites of, 216 
 
 momentary seisin of wife's lands sufBcient, 216 
 powers of the tenant by the, 217 
 attaches to equitable estates, 217 
 but not to an estate for life with general power of appointment not 
 
 exercised with remainder to wife's heirs, 217 
 wife may defeat husband's right to, by disposition inter vivos or by will, 
 
 217, 771 
 not abrogated by M. W. P. Act, 1882, 217, 240 
 right to, on divorce of husband by wife, 218 
 may be restrained from comrditting waste, 529 
 
 CUSTODY OF CHILDREN ACT, 1891, 
 
 enlarged jurisdiction of Courts in application for writs of habeas corpus 
 
 under, 500 
 court may refuse writ to parent, if disentitled by conduct, 500, 51 1 
 if child boarded out, or brought up by other persons, order of restoratiort 
 
 to parent conditional on recouping expenses, 500, 511 
 restoration only ordered, if parent a fit person, 511 
 court may order child to be continued to be educated in religious faith 
 
 other than parent's, 500 
 
 Digitized by Microsoft® 
 
.9U INDEX. 
 
 •CUSTODY OF CHILDEEN ACT, iSgi-amtinued. 
 
 court may require child to be brought up in parent's religion, 512 
 child's wishes may be considered, 500, 512 
 
 CUSTODY AND CONTROL OF CHILDREN, 
 
 questions of, assigned to Chancery Division, 497, 498 
 legitimate children 
 
 of father ', 
 
 natural guardian, 492, 508 
 
 generally till majority or marriage of child, 492, 499, 501, 589 
 
 results of common law right of, 493 
 
 executory contract of, to surrender ineffectual, 493, 495 
 
 cannot appoint testamentary guardian to child alter majority, 492 
 
 at what age child allowed a discretion as to remaining or not under, 
 
 , 492, 501, 590 
 ■relinquishment of 
 
 control may be resumed by, after, 495 
 
 when resumption not permitted, 495, 505 
 ■interference with common law right of 
 grounds for 
 
 former, by the common law courts, 501 
 
 by the Court of Chancery under its general jurisdiction, Joi, 502 
 
 abdication of authority, 495, 505 
 
 resumption of paternal, acting detrimentally to interests of child, 495, 
 
 505 
 
 removal of ward of Court out of the jurisdiction, 505. (See Wards of 
 Court.') 
 
 insuflBcient grounds for, 504 
 
 under its statutory jurisdiction, 506-512. (See Criminal Law Amend- 
 ment, Act, 1885; Ouardianship of Infants Act, 1886; Poor Law Act, 
 1891 ; Custody of Children Act, 1891 ; Infants' Custody Acts, 1839 
 and 1873.) 
 
 in favour of the mother, 506-509 
 of 'mother 
 
 at common law does not exist during father's life, 493 
 
 natural guardian, 492, 588 
 
 arises on father's death, 494 
 
 lasts till majority or marriage of child, 499, 501, 588 
 
 could not formerly appoint a testamentary guardian to, 494. (See 
 Guardianship of Infants Act, 1886.) 
 statutory rights of 
 
 under the Divorce Acts, 494 
 
 under the Infants' Custody Act, 1873, 494 
 
 under Guardianship of Infants Act, 1886, 494. (See Ouardianship of 
 Infants Act, 1886.) 
 removal of 
 
 grounds for, 494 
 forfeiture of right of, hy parents, 
 
 benefit of child, 495, 501 
 
 where benefit obtained by, on condition of resigning, 495 
 
 where they have acted so as to alter expectations and fortunes of, 495, 
 496 
 
 under Criminal Law Amendment Act, 1885. {Be& Criminal Law Amend- 
 ment Act, 1885.) 
 
 under Guardianship of Infants Act, 1886, 510. (See Guardianship of 
 Infants Act, iSii6.) 
 
 under Poor Law Act, 1889, 511. (See Poor Law Act, 1889.) 
 
 under Custody of Children Act, 1891. (See Custody of Children Act, 
 1891.) 
 
 under Prevention of Cruelty to Children Act, 1894. (See Prevention of 
 Cruelty to Children Act, 1894.) 
 Jww right of, ofpare^nts enforced 
 
 by writ of habeas corpus. (See Habeas Corpus.) 
 
 by application to the Court of Chancery to appoint a guardian, 498 
 
 application to Court more advantageous than habeas corpus, 499 
 ity the Divorce Court 
 
 jurisdiction not the same as that of the Court of Chancery, 515 
 
 whence derived, 512-515 
 
 Digitized by Microsoft® 
 
INDEX. 925. 
 
 CUSTODY AND CONTROL OF CHILDBEN-confmuerf. 
 
 when exeroiseable, 512 
 
 pending suit, 512 
 
 after suit, 513 
 
 on decree for restitution of conjugal rights, 451 
 
 variation of order after decree absolute, 514 
 
 innocent pa.ity primd facie entitled to, 513 
 
 where husband guilty, child to be provided for till majority 164 
 
 where wife guilty party, child's custody to be provided for, 164 
 
 interests of the child considered, 512, 513 
 
 party to suit restrained from taking child out of the jurisdiction ci^ 
 
 under Guardianship of Infants Act, 1886, 514. (See Guardianship of 
 Infants Act, 1886.) •- -r v ^ .» 
 
 under Summary Jurisdiction (Married Women) Act, 1895, Sii; 
 nght of, in guardian. (See Guardian of the Person.) 
 
 contest as to, between testamentary guardian and relatives, 630 
 
 when wishes of ward acceded to, 631 
 
 enforced by habeas corpus, 630 
 illegitimate children, 
 
 right of, primd facie in parent, 572, S73, S7S 
 
 not absolute as in the case of father of a legitimate child, 575 
 
 mother has primd facie right to, 572 
 
 when father's right recognized, 573, 574' 
 
 interest of child considered, 573 
 
 CUSTODY AND CONTROL OF WIFE 
 by husband. (See ffusband. ) 
 
 CUSTOMS ACT, 1876 
 
 infant's bond under valid, 728 
 
 DAMAGES, 
 
 measure of, on wrongful discharge of servant, 840 
 
 recovered by wife are separate property, 172, 203, 423 
 
 payable by wife out of her separate property, 362 
 
 in action by infant for personal injuries what, and what not recoverable 
 
 803 
 for injured feelings, may be given in action for seduction, 560 
 not for funeral expenses under Lord Campbell's Act, 171, 564 
 no proof of special, in action for slander imputing to a woman adultery- 
 
 or unchastity now needed, 173 
 no more costs to be recovered by her, than, 173 
 
 DANGEROUS PERFORMANCES ACT, 1879, 
 provisions of, as regards infants, 803 
 
 DAY TO SHOW CAUSE, 
 
 when infant entitled to, in a foreclosure suit, 730 
 
 when not entitled to, 731 
 
 when sale directed none allowed, 731 
 
 writ of subpoena to be served on infant, 731 
 
 DEAF AND DUMB, THE, 
 
 marriages ot, primd facie valid, 78 
 
 DEATH 
 
 of either spouse 
 
 does not abate action if cause survive, 420, 421 
 
 right of action in survivor for damages consequent upon, 171. (Se& 
 Campbell's Act, Lord.) 
 of child 
 
 right ot parent to bring action in respect of, 562. (See CampleU's Act,. 
 Lord.) 
 of parent 
 
 right of child to bring action in respect of, 563. (See Campbell's Act, 
 Lord.) 
 
 Digitized by Microsoft® 
 
926 INDEX. 
 
 DEATH — continued. 
 of master 
 
 puts an end to contract of service, 835 
 and authority of servant as his agent, 880 
 
 DEBTORS ACT, 1869, 
 
 married woman cannot be committed under, for post-nuptial debt, 335 
 can be committed under, for ante-nuptial liability, 319, 336 
 
 DEBTS, 
 
 ante-nuptial of wife 
 ■ liability of husband for 
 
 at common law, 258, 427 
 
 cesser of, on termination of coverture, 258 
 
 otherwise where he is her administrator, 258 
 
 done away with by M. W. P. Act, 1870, 259 
 
 in part restored by M. W. P. Act, 1874, 259 
 
 onus of proof of assets on creditor, 427 
 
 without assets received none, 260, 267 
 
 may be solely or jointly sued, 259, 266, 427 
 
 to a limited extent under M. W. P. Act, 1882, 260, 427 
 
 in her representative capacity, sole or joint, if adopted by him, 261 
 
 if not proved in joint action, husband entitled to judgment, 261, 267 
 
 he may be recouped out of wife's separate property, 267, 427 
 
 after termination of coverture, 261 
 liability of wife for, 
 
 at common law only on termination of coverture, 263 
 
 personal in the fullest sense, 336 
 
 when in equity as regards her separate estate, 263 
 
 sole, under M. W. P. Act, 1870, 263 
 
 notwithstanding restraint upon anticipation, 263 
 
 joint, under M. W. P. Act, 1874, 264 
 
 primd facie as to her separate estate under M. W. P. Act, 1882, 264, 
 265. (See Separate Estate. ) 
 
 primd facie for, in a representative capacity, 265 
 post-nuptial of wife 
 
 liability of husband for. (See Contract ; Neceesaries.) 
 
 liability of wife for. (See Contract; Separate Estate.) 
 in the case of an infant 
 
 cannot validly contract, except for necessaries, 745, 752 
 
 except perhaps where guilty of fraud, 726 
 
 cannot be inade the basis of a set-off or counterclaim, 762 
 
 cannot ratify, on majority, 761. (See Infanta' Belief Act, 1874; Ratifi- 
 cation.) 
 
 not liable for partnership contracted during minority, 740 
 
 liable for ancestors, 730, 731. (See Day to Show Cause; Trustee Acts.) 
 
 DECLARATION 
 
 what required, for marriage registrar's certiiicate, 99 
 what required, for marriage registrar's licence, 100 
 false statements in, equivalent to perjury, 99 
 
 DECREE IN EQUITY. (See Dayto Show Cause; Guardian ad litem; Judgment; 
 Next Friend. ) 
 when binding on infant, 729, 767 
 
 DEED 
 
 of separation. {Sec Separation.) 
 of infant 
 recitals in, do not bind, 720 
 voidable only in general, 724, 728 
 void if prejudicial, 724 
 
 DEFAMATION, 
 
 married woman may maintain sole action for, 173 
 
 imputing adultery or unohastity to married woman, ground of action 
 
 without proof of, special damage, 173 
 husband and wife cannot sue each other for, spoken or written during 
 
 coverture, 168, 248, 401 
 
 Digitized by Microsoft® 
 
INDEX. 927 
 
 DEFILEMENT 
 
 of girls. (See Cfriminal Laiv Amendment Act, 1885.) 
 
 DEPOSIT, 
 
 married woman primd facie entitled to, standing in her sole name, 206, 
 
 3S7 
 also where standing in her name and that of another, not her husband, 
 
 358 
 transfer of, to her after marriage, 358 
 when recoverable by infant, 740 
 
 DESERTION 
 
 what is, 449, 45 1 
 on husband's 
 rights of wife 
 
 to alienate her real property without his concurrence, 313, 449, 450 
 
 to be maintained with family. (See Summary Jurisdiction {Married 
 
 Women) Act, 1895.) 
 protection order on, 282, 350. (See Summary Jurisdiction (Married 
 
 Women) Act, 1895; Protection Order.) 
 must be unlawful and permanent, 351 
 
 prosecution of husband for larceny of her property on, 246, 247, 402 
 a ground for judicial separation, 447 
 coupled with adultery a ground for divorce a vinculo, 447 
 husband may prosecute wife on, for larceny of his property, 1 74, 246, 247, 
 402, 403 
 
 DEVASTAVIT 
 
 definition of, 328 
 
 wife not liable for husband's, if she did not take up administration on 
 his death, 329 
 ante- nuptial of wife 
 liability of husband for 
 
 at common law, full during coverture, 273, 328 
 
 ceased on termination of coverture, 273, 328 
 
 except when he became wife's administrator, 273 
 
 under M. W. P. Act, 1874, 273 
 
 under M. W. P. Act, 1882, 273, 275, 329 
 liability of wife for 
 
 at common law none during coverture, 274 
 
 arose on surviving her husband, 274 
 
 under M. W. P. Act, 1882, sole, unless he intermeddled 274, 275, 329 
 
 33?, 
 post-nuptial of wife 
 
 liability of husband for 
 at common law, full during coverture, 274 
 
 on termination of coverture only as administrator of wife, 274 _ 
 in equity, to the amount of trust funds misapplied by him or wife 274 
 none, if he dissented from wife's acceptance of ofiBce, 328 
 under M. W. P. Act, 1882, 275, 330 
 liability of wife for 
 
 at common law none, 275 
 arose on termination of coverture, 275, 329 
 sole, under M. W. P. Act, 1882, 275 
 unless husband has intermeddled, 276, 330 
 infant not liable for his, or co-executor's, 713 
 
 DISCHARGE OF GUARDIAN. (See Chardian; Belcase.) 
 
 DISCHARGE OF SERVANT, 
 
 servant giving notice, 836 
 master giving notice, 837 
 master may use sufiicient force to effect, 837 
 grounds for, without giving notice, 
 
 wilful disobedience of orders,. 837 
 gross moral misconduct, 838 
 drunkenness, 838 
 
 Digitized by Microsoft® 
 
928 INDEX. 
 
 DISCHARGE OF SERVANT— conimuerf. 
 
 habitual negligence of work, if to master's injuiry, 838 
 knowledge of master of good, not necessary at time of, 838 
 incompetence or permanent disability from illness, 839 
 but not mere temporary illness, 839 
 
 rightful, or wrongful quitting service disentitles servant to current 
 wages, 839, 865 
 remedy for wrongful, 839 
 measure of damages on wrongful, 840 
 
 DISCOVERY. (See Action, in the case of an Infant; Next Friend.) 
 
 cannofbe obtained from party to divorce proceedings for the sole purpose 
 of proving his or her adultery, 246 
 
 DISPOSITION 
 
 married woman's power of, over her property. (See Personal Estate; 
 Meal Estate; Separate Estate.) 
 
 DISPUTES BETWEEN HUSBAND AND WIFE AS TO PROPERTY, 
 
 provisions for settling, under M. W. P. Act, 1870, 397 
 
 under M. W. P. Act, 1882, 397 
 
 may be settled summarily, 397 
 
 application in, may be heard by judge in private room, 398 
 
 registrar of Probate Court has no jurisdiction to hear, 398 
 
 under what circumstances likely to arise, 398, 399 
 
 bank or other corporation holding property in dispute holds as a stake- 
 holder only, 398 
 
 wife in divorce proceedings and living apart may restrain husband froia 
 entering her house, 402, 425 
 
 husband may sue wife in respect of post-nuptial liabilities connected 
 with her property, 424 
 
 DISTRIBUTIONS, STATUTE OF, 
 
 disposition of husband's property under, based on early practice of the 
 Ordinary, 238 
 rights of widow under 
 
 arise when husband dies intestate, 237, 238 
 
 grant of administration to, under, a matter of discretion, 237 
 
 where child or children left, 237, 238 
 
 where no child or children left, 237, 238 
 
 when childless, under Intestates Estates Act, 1890, 239, 240 
 
 widow as such not next of kin to husband, 238 
 hm barred 
 
 by ante-nuptial settlement excluding her, 238 
 
 by husband's covenant to leave her a share of his estate, 238 
 
 when covenant deemed to be performed on husband's deatl) intestate, 
 23S 
 
 when not, 239 
 
 expression ' ' thirds at common law " inaccurate, 239 
 rights of mother under 
 
 when to the whole of child's personalty, 534 
 
 when to the half, 534 
 
 when sharing proportionately, 534 
 posthumous and half-blood relatives take under, 534 
 rights of chi'dren on death of intestate father, 
 
 if no widow left, equal shares, 554 
 
 if widow left, equal shares of two-thirds, 237, 238, 554 
 grandchildren take under, jjcr stirpes and not^er capita, 554 
 on death of intestate mother, 
 
 none, if father left alive, 555 
 
 if father dead, equal shares of whole, 554 
 rights of grandparents under, 534 
 
 DIVORCE, 
 
 a vinculo mntrimonii, 
 in England, 
 grounds for, 446, 447 
 
 Digitized by Microsoft® 
 
INDEX. 929 
 
 D1V0B,C^— continued, 
 defences in, 
 
 absolute bars, 447 
 
 discretionary bars, 447 
 in Ireland, 
 
 difference between English and Irish divorce law, 58 
 
 dissolution of marriage not obtainable, 59 
 
 procedure by husband to obtain private bill, 59 
 
 wife can now obtain private bill, 59 
 in Scotland, 
 
 grounds for, 41 
 
 defences in, 42 
 
 jurisdiction of courts, 42 
 
 forty days' residence domicil only for purposes of citation, 43 
 
 formerly founded iurisdiotion, 42, 466, 471 
 effect of sentence of, 
 
 parties no longer husband and wife, 447 
 
 entitled to remarry, 82, 447 
 
 on husband's interest in wife's choses in action and in reversion, 199 
 
 in her specific chattels, 202. (See Separate Estate. ) 
 
 on his liability for her debts, 312 
 
 on wife's right to dower, 230 
 
 on separation deeds, 441, 442, 444, 447. (See Separation, Deed of.) 
 ■whether costs of wife's, necessaries, 312. (See Costs.) 
 contract to procure facilities for, void, 11 
 •does not entitle either spouse to divulge communications made by each other 
 
 during coverture, 246 
 interTiational aspect of, 
 
 differently regarded than marriage,- 463 
 
 validity of, depends on lex domicilii, 83, 464 
 
 reasons for rule, 464, 470 
 
 how far English courts recognize validity of foreign, 465 
 
 marriage in England of domiciled foreigners dissoluble by court of 
 husband's domicil, 465, 466 
 
 even for grounds insufficient in England, 466-468 
 
 " English marriage," what it is and is not, 83, 465, 466 
 
 probably dissoluble by court of husband's new domicil, 469 
 
 even for causes insufficient in England, 469, 470 
 
 possibly dissoluble by foreign court though husband not domiciled within 
 the jurisdiction, 470 
 
 but not for causes insufficient in England, 470 
 
 recognition of Indian, of British Christian subjects, 473 
 
 BIVpRCE COUET, THE, 
 jurisdiction of, 
 
 before Divorce Act, 1857, none in Ecclesiastical Courts to divorce 
 vinculo matrimonii, 446 
 
 in suits for nullity of marriage, 62 
 
 extension of, by Divorce Act, 1857, 446 
 
 to make orders for alimony, 165, 451 
 
 over access to children, 512, 514 
 
 over custody of children up to and beyond sixteen, 164, 512-515. (See 
 Control and Custody of Children.) 
 
 over marriage celebrated abroad of parties acquiring an English domicile 
 465 
 
 when obtained, by residence less than domicil, 471-473 
 to vary settlements, ante-nuptial and post-nuptial, 
 
 post-nuptial, include deeds of separation, 163 
 
 on dissolution of marriage, 163, 441, 447, 448 
 
 whether there are children or not, 163, 447 
 
 on nullity of marriage, 163 
 
 in suits for restitution of conjugal rights, 164, 451 
 
 not in suits for judicial separation, 164, 441, 448 
 
 but has power to order payment of alimony, 165 
 
 and to direct inquiry as to wife's property, 163 
 
 to deal with powers of appointment, 164 
 
 limitation of, 164 
 
 interests of children considered, 163 
 
 3N 
 
 Digitized by Microsoft® 
 
930 INDEX. 
 
 DIVORCE COURT, TBE— continued. 
 
 wife if guilty party may be compelled to provide for children, 164 
 innocent party protected, 164 
 
 in the case of parties married abroad whose marriage is dissolved or 
 nullified by itself, 165 
 over separation deeds, 
 
 to construe and give effect to, 441 
 to alter and disregard, 441, 447 
 whether there are children or not, 447 
 
 in judicial separation cannot increase amount of alimony in, 442 
 is the Court of Appeal as to orders of maintenance and separation under the 
 Summary Jurisdiction (Married Women) Act, 1895, 354 
 
 DOMESTIC SERVANT. (See Menial Servant.) 
 
 DOMICIL, 
 
 definitions of, 434, 455 
 
 animus manendi et relinquendi, 454, 455 
 
 not lost by mere non-residence, 470 
 
 of choice, 455 
 
 cannot be acquired by an infant, 631 
 
 by operation of law, 456 
 
 lex domicilii governs the capacity of the parties to marry, 87, 106, 458, 
 461, 462 
 
 qucere where the wife is a domiciled English subject, 458 
 
 and to make a binding marriage settlement, 143 
 
 lex domicilii governs the validity of divorce, 464, 465 
 
 must be genuine, 468 
 
 reasons for rule, 464, 470 
 
 an English, gives Divorce Court jurisdiction over foreign marriages, 465 
 
 when residence less than, gives Divorce Court jurisdiction, 471-473 
 
 residence less than, formerly claimed by Scotch courts to found juris- 
 diction, 471 
 
 that of the husband, the true matrimonial, 167, 361, 456 
 
 reasons for, 456 
 
 if wife's house the matrimonial, she cannot turn her husband out, 401 
 
 of wife not affected by Married Women's Property Act, 1882, 361 
 
 whether the Court of Chancery has power to exclude husband from wife's 
 house forming the matrimonial, 401, 402 
 
 change of, by husband affects that of the family, 167, 456 
 
 wife cannot acquire separate, 167 
 
 may acquire qiMsi, for divorce purposes, 167, 473 
 of children, 
 legitimate, 
 
 of origin that of father, 486 
 
 of infant changes with that of father, 486, 631 
 
 fixed by father's death, 632 
 
 of fatherless, that of mother, 486, 631 
 
 mother may change that of, 486, 631 
 
 but not by her second marriage as a necessary result, 486 
 
 nor for fraudulent purposes, 487 
 
 cannot be changed by guardian, 631, 632 
 legitimated, 
 
 is and changes with that of father, 487 
 
 effect of, on legitimation ^cr subaequens matrimonium, 485, 487 
 illegitimate, 
 
 is that of mother, 581 
 
 DOWAGER, 
 
 rights and liabilities of. (See Dower.) 
 
 DOWER, 
 
 definitions of, 218 
 reasons for, 218 
 ' duration of estate in, 218 
 different kinds of, 219 
 requisites for, 219 
 
 Digitized by Microsoft® 
 
INDEX. 931 
 
 HOWER—continiKd. 
 
 to what property it attaches, 219 
 
 formerly not claimable out of trust estates, 220 
 
 now claimable out of them, 220, 227 
 
 extends to one-half of lands held in gavelkind, 220 
 
 extends to whole of lands held in Borough English, 220 
 
 of copyhold lands, 22 r. (See Freebench.) 
 
 when widow entitled to, 221, 240 
 
 widow's quarantine, 221 
 
 widow entitled to emblements, 220, 221 
 
 power of dowager under under Settled Estates Act, 1877, 221 
 
 liabilities of dowager, 222 
 
 assignment of, 222 
 
 enforcement of, 222 
 Tiow dower may be barred, 
 
 formerly by fine only with concurrence of wife, 222 
 
 by conveyance to husband and trustee in joint tenancy, 223 
 
 effect of, 223 
 
 by conveyance to uses to bar, 223 
 
 effect of, 223 
 
 by assignment of satisfied term to purchaser, 223 
 
 assignment of unsatisfied term will bar woman married before January 
 I, 1834, 224 
 
 by jointure, 224-227. (See Jointure.) 
 
 election between jointure and, 225 
 
 to put wife to election, intention to exclude her from, must be clear, 225 
 
 question of less importance since Dower Act, 1833, 226 
 
 by limitations to bar, 226. (See Limitations to bar dower.) 
 may be lost by forfeiture, 
 
 by adultery of the wife whether leaving husband voluntarily, 230 
 
 or where his conduct compels her to leave him, 230 
 by waiver, 
 
 formerly by concurrence in a fine, 230 
 
 by a deed of conveyance acknowledged by her, 230 
 
 by a mortgage reserving equity of redemption to husband, 230 
 
 widow executing mortgage in order to release her right to, entitled to, 
 on the reconveyance of the promises, 230, 231 
 
 DOWEE ACT, 1833, 
 
 widow entitled to dower out of equitable estates, 227 
 
 seisin not necessary to give title to dower under, 227 
 
 dower defeated by charges and debts, 228 
 
 by a declaration in a deed or will, 228 
 
 by a devise of realty to the widow, 228 
 
 but not by a bequest of personalty, 228 
 
 legacies in bar of dower, 229 
 
 agreement not to bar dower may be enforced, 229 
 
 abolition of dowers ad ostium ecclesice and ex assensu patris, 219, 229 
 
 effect of the Act, 229 
 
 DOWER AD OSTIUM ECCLESI^, 
 what was, 18 
 abolished by the Dower Act, 219, 229 
 
 DOWER EX ASSENSU PATRIS, 
 
 abolished by the Dower Act, 219, 229 
 
 DRAINAGE, 
 
 powers of guardians as to, 684 
 
 DRIVING, . „„ „^ 
 
 when master liable for negligence of servant m, 884, 885 
 when not liable, 882, 885, 887 
 
 DRUNKENNESS, 
 
 marriage in a state of, when good, 78 
 
 marriage in a state of delirium tremens not good, 78 _ 
 
 marriage law of Scotland and United States on the subject of, 78 
 
 Digitized by Microsoft® 
 
932 INDEX. 
 
 DRUNKENNESS— contOTMcd. 
 
 of servant or ground for discharge without notice, 838 
 of servant equivalent to negligence of master, 884 
 
 DUM CASTA CLAUSE, 
 
 not a usual covenant in a separation deed, 444 
 
 DURESS, 
 
 what is, 70 
 
 when, on part of party to marriage contract renders marriage voidable, 
 
 70 
 quantum of coercion varies with the strength of the person affected, 70 
 fear of harm necessary ingredient, 7 1 
 Scott V. Sebright, 72 
 man abducting woman by force may be indicted, 73 
 
 EARNINGS, 
 
 of married woman, 
 
 interest of, in, 202 
 
 formerly belonged to husband, 351 
 
 made during judicial separation or under protection order her separate 
 
 property, 351, 829 
 lawful only, protected, 351 
 interest in, under M. W. P. Act, 1870, 202, 355 
 under M. W. P. Act, 1882, 202, 357, 829 
 right of parents to child's, 
 
 whether father entitled to, qucere, 531 
 
 if entitled, limited to those of child living and supported at home, 531 
 none, after child is sixteen, 531 
 or on emancipation, 531, 533, 553 
 when child entitled to his, 531, 533, 553 
 intention to be paid by parent must be clear, 532 
 American law on the point, 533 
 when mother entitled if at all, 532 
 when stepfather entitled, 532 
 right of master to servant's, 86 1 
 no right of guardian to ward's, 632 
 
 ECCLESIASTICAL COURT, THE 
 
 solemnization of regular marriage formerly compellable by, 16 
 functions of, merged in Court of Probate and Divorce, 446 
 
 EDUCATION, 
 
 general jurisdiction of Court of Chancery over child's^ 616, 617 
 income of infant's property applicable for his, 677 
 secular, 
 
 of child, formerly a moral and not legal obligation, 521 
 
 facilities for, under Elementary Education Act, 1870, 521, 634 
 
 duty of providing, on parents and guai^dians under Elementary Education 
 
 Act, 1876, 521, 634 
 legal obligation on parent to give child an elementary, 522 
 -age of school attendance, 522 
 
 when father must not interrupt education sanctioned by him, 522 
 • obligation on guardian to give ward suitable to his means, 522, 634 
 - differences between guardians as to ward's, to be settled by the Court, 
 
 63s 
 Court will superintend that of ward, 617, 618 
 ■ religious, 
 
 parent not bound to give child any particular, 523 
 
 primd facie that of the father, 523, 634 
 
 father's rights preserved by Guardianship of Infants Act, 1886, S23> 
 
 634 
 mother's rights not extended by the Act in respect of, 523, 525, 634 
 contract of father to bring up child in any particular, not binding, 523, 
 
 524. 527 
 ■even when a ward of court, 524 
 ■even after his death without leaving directions as to, 523, 527, 634 
 
 Digitized by Microsoft® 
 
INDEX. 983 
 
 EDUCATION— con(in«e(Z. 
 
 parol evidence of father's wishes admitted, 617, 635 
 
 interests of child considered, 524, 525 
 
 poor law guardians under Poor Law Act, 1889, cannot interfere with, 
 
 S" 
 interference hy the Court with paternal right 
 
 where father has abandoned, forfeited, or waived his, 524, 525, 635, 
 
 786 
 where he has not so abandoned, &c., the question of the child's benefit 
 
 cannot be entertained, 526, 527 
 evidence of such abandonment, &c., 526 
 examination of child by the Court, 526, 527 
 opinions of infant of tender years disregarded, 527 
 under Custody of Children Act, 1891. (See Custody of Children Act, l8gi.> 
 rights of widowed mother as to, 524 
 
 ELECTION, 
 
 of guardian, 601. (See Guardian hy Election.) 
 of infant 
 
 doctrine of, applicable to, 728 
 
 enquiry by Court how it should be made, 728 
 
 on attaining majority to go on with or repudiate suit, 814 
 of ward 
 
 to be bound by the acts of his guardian, 701 
 
 privilege of, to avoid them, 702 
 
 privilege controlled by the Court, 702 
 
 all advantageous bargains subject to his, 702 
 of wife 
 
 doctrine of, based on compensation, 389, 774 
 
 on majority to be bound by her settlement or not, 773, 775 
 
 when put to her, to take under or against the settlement, 389, 773-775 
 
 property to be subject to, if affected by the M. W. P. Act, 1882, must 
 be in existence at date of, 389, 774 
 
 infant wife not bound by husband's covenant to settle after acquired 
 property, 136, 774 
 
 if insane, made by Court on her behalf, 773 
 
 effect of restraint upon anticipation upon her right of, 134, 136, 390, 
 
 775 
 between jointure and dower when, 225 
 
 ELEMENTARY EDUCATION ACTS, 1870 and 1876. (See Education.) 
 
 EMANCIPATION, 
 
 of child from parental control at majority, 492, 495, 499 
 
 when child under age, less of a right than a privilege, 552 
 
 upon what it is based, 553 
 
 what does and does not effect, 553 
 
 does not release child from liability to support parent, 533 
 
 on, child entitled to its earnings, 531, 533, 553 
 
 enlistment is an, 553 
 
 exception, 553 
 
 when marriage acts and does not act as an, 712 
 
 EMBEZZLEMENT, 
 
 definition of, 896 
 
 what constitutes, 897 
 
 distinction between larceny and, 895 
 
 person indicted for, may be convicted of larceny, 897 
 
 EMBLEMENTS, 
 
 dowager entitled to, 220, 221 
 
 widow of copyholder on second marriage forfeits, 221 
 
 EMPLOYERS' LIABILITY ACT, 1880, 
 
 not applicable to domestic servants, 869 
 
 EMPLOYERS' AND WORKMEN'S ACT, 1875, 
 
 remedies of master against apprentice under, 755, 842, 850 
 
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934 INDEX. 
 
 ENFORCEMENT OF SETTLEMENTS. (See Settlement, Enforcement of .) 
 
 ENFEANCHISEMENT, 
 
 of ward's lands by trustee under Settled Land Act, 1882, 669 
 
 ENGLISH MABEIAGE. (See Divorce.) 
 meaning of term, 465, 466 
 
 ENLISTMENT, 
 
 of infant either in the navy or army, 756 
 
 infant apprentice claimable by master within a month of his, 757 
 
 infant apprentice cannot be enrolled as a volunteer without master's 
 
 consent, 849 
 as an emancipation of infant child, 553. (See Emancipation.) 
 
 ENTAIL, TENANT IN. (See Tenant in tail.) 
 
 ENTICEMENT AND HARBOURING, 
 of child, 
 
 what is enticing, 558 
 
 what is harbouring, 559 
 
 right of action for, depends on relation of master and servant, 558 
 
 not limited to infancy, 559 
 
 parent may recover amount of services rendered by child, 559 
 
 action for, may be brought by mother, 559 
 
 qucere, where she is living apart voluntarily from husband, 559 
 of servant, 
 
 right of action for, in master, 861 
 
 for detention after notice of prior contract of service, 862 
 of wife, 
 
 right of action for, 171 
 
 when action would fail, 171 
 
 wife's parents have no rignt of, 171 
 
 EQUITY TO A SETTLEMENT (WIFE'S), 
 a protection of the wife, 123, 207 
 
 a modification of the common law right of the husband, 207 
 when it arises, 207, 208, 398 
 
 attaches to the right to receive the wife's property, 208 
 when enforced, 208 
 when not, 211 
 by whom enforceable, 208 
 children take in right of the mother, 209 
 to what property it attaches, 209 
 to what it does not attach, 210 
 distinction where wife takes an estate absolutely, and where for life only, 
 
 210 
 amount to be settled, 211 
 waiver and release of, 212 
 wife may release her, under Malins' Act, 213 
 questions as between husband and wife, 211, 398 
 as between wife and husband's assignees, 211 
 when it may be defeated, 213 
 
 necessity for enforcing done away with by M. W. P. Act, 1882, 
 208 
 
 ERROR, 
 
 when, on part of parties marrying renders marriage voidable, 67 
 
 when not, 67, 69 
 
 party guilty of fraud, not allowed to set up own wrong, 68 
 
 error personre, 67 
 
 error conditionis, 68 
 
 error fortimce, 68 
 
 error qualitaiis, 68 
 
 EVIDENCE, 
 
 as between husband and wife 
 in civil matters 
 they are now competent witnesses for and against each other, 245 
 
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INDEX. 935 
 
 EVIDENCE— continued. 
 
 they may give evidence in proceedings instituted in consequence of 
 
 adultery, 245, 478 
 protection of witnesses, 246 
 
 they may not give, so as to bastardize their issue, 477, 478 
 of non-access to each other. (See Non-access.) 
 communications between, during coverture privileged, 246 
 admissions by wife falling within scope of her authority bind husband, 
 
 246 
 in criminal matters 
 
 generally mutually incapable of giving, for or against each other, 
 
 243 
 how such evidence made admissible, 244 
 statutory exceptions, 
 
 tendency of the law to remove this incapacity, 244 
 
 under the Army Act, 1881, 244 
 
 Explosive Substances Act, 1883, 244 
 
 Criminal Law Amendment Act, 1885, 245 
 
 Prevention of Cruelty to Children Act, 1894, 24S 
 
 Betting and Loans (Infants) Act, 1892, 245 
 
 Sale of Food and Drugs Act, 1875, 245 
 
 Conspiracy and Protection of Property Act, 1875, 867 n 
 
 based on the necessity of protection ot the spouses and public advantage, 
 
 244 
 special exception created by M. W. P. Acts, 1882 and 1884, 244, 403 
 wife not admissible witness against husband when charged with deserting 
 
 her under Vagrancy Act, 244 
 of young children, 
 
 competency of, based on understanding, not age, 717 
 must be on oath, 717 
 excejptions, 
 
 under Criminal Law Amendment Act, 1885, 717 
 
 Prevention of Cruelty to Children Act, 1894, 717 
 whether Infant of tender years can make declaration instead of oath, 
 
 717 
 weight to be given to their, 718 
 proof of-infancy in an action, 819 
 
 EXCHANGE, 
 
 of ward's lands by guardian under Settled Land Act, 1882, 668 
 
 EXECUTION, 
 
 in the ease of a married woman, 
 
 limited to free separate property, 431 
 
 also on restrained, if notwithstanding restraint such property is liable 
 
 432 
 hyfi.fa., 432 
 
 by elegit, 432 ,„ „ • , 
 
 by appointment of receiver, 432. (See Ueceivtr.) 
 by sequestration, 432 
 by garnishee order, 432 
 by committal order 
 
 for ante-nuptial debts, 432 
 
 for post-nuptial torts, 432 
 
 EXECUTOR AND ADMINISTEATOR, 
 
 executor of a married w Oman's will a trustee for husband, 372 
 liability of, on appropriation of fund to meet legacy due to infant, 692 
 infant may be appointed, 601-713 
 
 infant, not liable for his own and co-executor's devastavits, 713 
 may act on majority without further probate, 713 
 administrator durante minore estate, 
 when appointed, 601, 713 
 who appointed, 602 
 powers of, 602 
 
 EXECUTRIX AND ADMINISTRATRIX. (Bee Administration.) 
 husband could not compel wife to take up office of, 329 
 capacity of married woman to be, with husband's assent, 328 
 
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936 INDEX. 
 
 EXECUTRIX AND ADMINISTRATRIX— conima^tZ. 
 
 assent necessary to validate gifts and grants of, 328 
 
 reasons for his assent being necessary, 328 
 
 when assent dispensed with, 328 
 
 former title of husband to administer in wife's right, 328 
 
 power of husband to release debts due to the estate, 328 
 
 married woman could make a, will as, without husband's assent, 328^ 
 
 369 
 under Married Women's Property Act, 1882, 
 alteration in the law effected by, 329, 330 
 
 married woman may accept office of, without husband's assent, 329 
 may sue or be sued jointly or solely, 329, 330, 358 
 may transfer property as a, feme sole, 329, 330, 358 
 powers of, 330, 358 
 
 liabilities of, 329, 330, 358. (See Devastavit.) 
 husband not liable for wife's devastavits unless he has intermeddled,, 
 
 330 
 right of retainer pf , for loan made by her to dead husband, 298 
 
 EXONERATION, EQUITY OF (WIFE'S), 
 
 wife's mortgaged property primd facie surety for husband's debts, 194^ 
 
 299 
 exists even if part of the mortgaged property belongs to husband, 194 
 also if she joined with husband in charging her own property, 194 
 wife paying off mortgage entitled to stand in place of mortgagee, 194 
 formerly it ranked equal to claims of husband's other creditors, 194 
 now postponed under M. W. P. Act, 1882, if husband a trader, until 
 
 they have been paid off, 194, 299 
 but not otherwise, 299 
 
 FACTORY AND WORKSHOPS ACTS, 1878 and 1891, 
 provisions of, as regards infants, 805 
 
 FAMILY, THE, 
 
 probable origin of society, i 
 
 FAMILY ARRANGEMENTS, 
 
 parental influence allowed in, if beneficial 538 
 
 reasonable knowledge and appreciation on part of child necessary,, 
 
 538 
 when set aside as against a third person, 538 
 
 FATHER, 
 
 evidence of, and mother to prove no marriage between them admissible, 
 
 567 
 guardian by nature of child, 492, 588 
 legal guardian of child, 492, 588 
 can appoint testamentary guardian to child, 492. (See Testamentarjf 
 
 Guardian.") 
 can change domicil of infant legitimate child, 486. (See Domicil..) 
 gifts and transactions between, and child, 535-548. (See Gifts.) 
 power of, over child, 
 of correction, 492 
 consent of, necessary to marriage of infant, 87, 493. (See Consent of 
 
 Proper Parties.) 
 duties of, 
 
 to protect child, 515 
 
 to educate, 520-527. (8e& Edv/Mtion.) 
 
 to maintain child up to sixteen, 516. (See Parents.) 
 
 advancement to, for past maintenance not generally allowed, 637, 652. 
 
 (See Maintenance^ 
 rights of, 
 
 may act as child's next friend, 810 
 
 to insure life of child, 534. (See Insurance.) 
 
 in respect of the properly of the child, 529-534. (See Parents.) 
 
 common law, guardian of, 588 
 
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INDEX. 937 
 
 ¥XTH'EB,— continued, 
 real estate 
 
 if he enter, is treated as bailifE, 529 
 
 to succeed to intestate child's, 530 
 personal estate, 530-534. (See Parents.) 
 
 to take the whole if child die intestate, 533 
 
 over his earnings, 531, 532. (See Earnings.) 
 to custody of child, 491-494. (See Custodtj and Control of Children.) 
 
 natural guardian of, 492, 810 
 
 as against the mother, 493 
 
 how enforced. (See Chancery, Court of; Edbeas Corpus.) 
 
 agreement by, in separation deed to surrender, formerly invalid, 445 
 
 when valid under Infants' Custody Act, 1873, 445. (See Infants' Custody 
 Acts, 1839 and 1873.) 
 
 relinquishment of, 495 
 
 forfeiture of, 495. (See Custody and Control of Children.) 
 
 interference with, by Court of Chancery, under its general jurisdiction, 
 501, 502, 512 
 
 under its statutory, in favour of the mother, 506-512, 615 
 
 what grounds suflScient for, 503 
 
 what grounds insufficient for, 504 
 
 when allowed to take a ward of court out of the jurisdiction, 506, 797 
 
 power of the Divorce Court to interfere with, 512-515 
 
 court may order, to provide for custody, education, and maintenance of 
 child up to twenty-one, 164 
 Uahilities of, 
 
 to support family, 255. (See ffusband; Parent.) 
 
 for child's debts, 518, 519 
 
 for his torts, 564 
 illegitimate child, 
 
 relationship between, and, recognized, 568, 573 
 
 under Provident Nominations and Small Intestacies Act, 1883, S7J 
 
 when right of custody recognized, 573 
 
 as against the mother, 574 
 
 may maintain action for decoying, 574 
 
 liability of, to support, statutory and not at common law, 575, 576 
 
 on what grounds, 576 
 
 up to what age, 576, 580 
 
 liability of, does not cease on marriage of mother, 576 
 
 how liability enforced, 579. (See Bastardy.) 
 
 when liable independently of statute, 576, 577. (See Cohabitation.} 
 FELONS, 
 
 custody of infant, 613 
 
 jurisdiction of Court of Chancery to appoint guardian to infant, 613; 
 
 FINANCE ACT, 1894. (See Income Tax.) 
 
 FINES AND EECOVEEIES ACT, 
 
 levying of fines and sufiEering recoveries by married women done away 
 with by, 182, 249. (See Acknowledgments to Bar Wife's Interests.) 
 
 FORECLOSURE, 
 
 infant bound by decree in suit for, 665 
 
 when sale rather than, directed, 729 
 
 when infant may have a day to show cause in a suit for, 730 
 
 FOREIGN GUARDIANS. (See Guardians, Foreign.) 
 
 FOREIGN LAW. (See Domicil.) 
 
 settlement involving question of, to be construed according to the in- 
 tention of parties, 143 
 
 FOREIGN MARRIAGE ACT. (See Foreign Marriages.) 
 
 FOREIGN MARRIAGES, 
 
 recognized by British Courts, if valid by the lex domicilii and lex loci 
 
 celebrationis of the parties, 105, 461-463 
 exceptions, 105, 461-463 
 
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938 INDEX. 
 
 FOREIGN MARRIAGES— continued, 
 marriages of British subjects abroad, 
 
 on foreign territory, io6 
 
 lex loci celebrationis, io6 
 
 statutory exceptions, 107 
 
 diriment and impedient prohibitions, 107 
 Foreign Marriage Act, 1892, 
 
 marriage officers, 108 
 
 in official house of British Ambassador, 108 
 
 in official house of British Consul, 108 
 
 in official house of British Governor, 108 
 
 on board Her Majesty's Ships, 108, 109 
 
 one of the parties must be a British subject, 108 
 
 notice, 109 
 
 suspension of, for fourteen days, 109 
 
 oath before marriage, 109 
 
 oiveat may be entered against, log 
 
 validity of, for three months, 109 
 
 hours of marriage, 8 A.M. to 3 P.M., 109 
 
 solemnization of, in presence of marriage officer, 109 
 should be according to form of lex lod when recognized as valid, unless both 
 
 parties are British subjects, no 
 within the lines of British army serving abroad, no, 463 
 on board British merchant ships, no 
 in India, 
 
 Indian Marriage Act, 1872, in 
 in the Colonies, ill 
 
 FRANCHISE, 
 
 relation of married woman to the, 175 
 
 she may be a parish councillor, 176 
 
 a chairman of the district council, 176 
 
 she can exercise the municipal and school-board, 175 
 
 but not the parliamentary, 175 
 
 she may be on local government register as occupier, 175 
 
 but not as owner, 176 
 
 FRAUD, 
 
 when, on part of party to marriage contract renders marriage voidable, 
 68 
 
 when relieved against, 68, 69 
 
 when marriage brought about by a conspiracy set aside, 69 
 
 when not, 69 
 
 when defence in action for breach of promise of marriage, 70 
 effect of, 
 
 in publication of banns, 91. (See Banns.) 
 
 in the Ordinary's Licence, 97. (See Licence. ) 
 
 in the Registrar's Certificate, 99. (See Certificate.) 
 
 in the Registrar's Licence, 100. (See Licence.) 
 
 rectification of marriage settlement on ground of, 152 
 
 on what principle, 152. (See Mistake.) 
 
 husband's settlement in, of creditors, 154-161 
 
 husband's settlement in, of purchasers, 155 
 
 wife's settlement in, of creditors and purchasers, 158 
 
 when proof of, not required to set aside post-nuptial settlement, ISS 
 
 or in settlement void under the bankruptcy laws, 162 
 
 constructive, 158 
 
 mere undervalue in bargains not conclusive proof of, 550 
 
 ground for reopening accounts between guardian and ward, 700 
 of wife, 
 
 liability of her separate estate for, in connection with it, 269, 272 
 
 liability of husband for. (See Tort.) 
 
 effect of, on efficacy of restraint upon anticipation, 272, 381, 385. (See 
 Restraint upon Anticipation.) 
 in the case of master and servant. (See Master.) 
 
 where infant bound by his, 734, 740 
 
 FRAUDS, STATUTE OF 
 
 promises in consideration of carriage within, 129, 143, 144, 345 
 
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INDEX. 939 
 
 FRAUDS, STATUTE OF— continued. 
 
 promise to marry not within, ii6 
 
 contract of hiring and service within, 833 
 
 doctrine of part performance under, does not extend to contract of 
 
 service, 834 
 nor to the mere fact of marriage, 144 
 what amounts to a part performance, 144, 145 
 contracts of married woman must comply with, 28S 
 
 FEEEBENCH, 
 
 to entitle widow to, husband must have been admitted as copyholder, 221 
 
 amount of, depends upon custom of the manor, 221 
 
 rights to, depend upon custom of the manor, 221 
 
 may be barred by devise of husband without surrender, 221 
 
 not affected by the Dower Act, 221 
 
 does not attach to equitable estates, 221 
 
 widow of copyholder not entitled to emblements on second marriage, 221 
 
 FBIENDLY SOCIETIES, 
 
 infants may be members of, 743 
 
 FUNERAL EXPENSES, 
 
 under Lord Campbell's Act, 
 
 not recoverable as between husband and wife, 171 
 or parent and child, 564 
 
 GARNISHEE ORDER, 
 
 judgment against married women enforced by, 432 
 
 GAVELKIND, 
 
 dower of lauds lying in, 220 
 
 guardianship, by the custom of, 593 
 
 infant may aJiene lands in, after fifteen, 727, 740 
 
 but only for full consideration, 740 
 
 GIFT OVER. (See Conditions in restraint of marriage. 
 
 GIFTS, 
 
 hetween Imshand and wife, 
 
 formerly invalid at law, 292 
 
 valid in equity, 292 
 of realty, 
 
 trustee required to perfect, 292 
 
 under the Conveyancing Act, 1881, 292 
 
 under M. W. P. Act, 1882, 292 
 
 if legal estate conveyed by wife, her acknowledgment necessary, 293 
 of chattels, 
 
 formerly invalid at law, 293 
 
 good in equity, 293-295 
 by husband to wife, 293 
 
 intention to make, to be clear and unequivocal, 293 
 
 imperfect, 293 
 
 effect of M. W. P. Act, 1882, on imperfect, 294 
 
 evidence of wife of, should be corroborated, 294 
 
 valid, 294 
 
 what are not, 294 
 
 when void under bankruptcy law, 295 
 
 legacy to wife has no priority, 295 ^ •, 
 
 of jewels and personal ornaments, pnmd facie her separate property, atd 
 not paraphernalia, 408 
 by wife to husband, , , •, 
 
 intention to make, must be cogent and corroborated, 295, 399 
 
 onus of proof of on husband, 295, 399 
 
 onus notwithstanding M. W. P. Act, 1882, 295 
 
 ignorance of wife not equivalent to her assent, 399 
 
 whether her consent be taken to, of a fund in court, 295, 399 
 
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940 INDEX. 
 
 GIFTS— continued. 
 
 where separate property has come to hands of husbanS, ^t will be 
 deemed primA facie to be, 399 
 
 of income of separate estate readily assumed, 295, 399 
 
 of the capital not so readily assumed, 296 
 
 will be assumed where separate capital allowed to be employed ia 
 husband's business, 296 
 
 joint investment of wife's property effects a joint tenancy, 296 _ 
 
 property of separate trader remaining in her order and disposition claim- 
 able by her trustee in bankruptcy, 297 
 
 husband and wife may pass chattels to each other by mere delivery, 300 
 
 possession of chattels follows the title, 300 
 to husband and wife, 
 
 in joint tenancy, 187. (See Joint Tenancy.) 
 
 effect of M. W. P. Act, 1882, on, 187 
 
 effect of, in joint tenancy, to husband and wife and a third person, 187 
 
 rule as to joint interest of husband and wife, one of construction only, 
 187 
 
 M. W. P. Act, 1882, has not altered the rule, 187 
 gifts and transactions hetween parent and child, 
 from parent to child, 
 
 irrecoverable, 539 
 
 advancement, 543-545, 653-657. (See Advancement.) 
 
 portions for younger children, 539-548. (See Portion; Ademption; Satis- 
 faction.) 
 
 when parent indebted to child, 542 
 from child to parent, 
 
 if made by infant voidable, 535 
 
 by adult valid, 535 
 
 when made by child soon after majority valid, 535 
 
 parental influence must be for child's benefit, 537 
 
 when undue influence presumed, 535-537. (See Undue Influence.) 
 
 family arrangements, 538. {See jFamily Arrangements.) 
 between guardian and ward, 
 
 ward may make, to guardian, 705 
 
 suspected as long as fiduciary position lasts, 705 
 
 rule applicable to jaasi-guardians, 706, 710 
 
 when undue influence presumed, 705, 709. (See Undue Influence.) 
 
 ward must have independent advice, 706 
 
 where influence removed may be maintained, 706 
 
 when may be set aside after ward's majority, 706, 707 
 
 ward may recompense guardian, 707 
 
 GOVERNOR, 
 British, 
 
 marriage in oflicial house, 100. (See Foreign Marriages.) 
 
 GRANDCHILDREN, 
 
 liability of grandparents to support, 256, 257, 516, 517 
 
 none on part of, to support grandparents, 5 1 7 
 
 take under Statute of Distributions j)er stirpes and not^er capita, 559 
 
 GRANDPARENTS, 
 
 liability of, to support grandchildren, 256, 257, 516, 517 
 
 of grandmother to support grandchild, it possessed of separate property, 
 
 517 
 when entitled to share of personalty of intestate grandchild, 534 
 
 GRETNA GREEN, 
 
 marriages at, validity of, 30, 107 » 
 
 blacksmith witness rather than celebrator of, 30 n 
 
 put an end to by Lord Brougham's Act, 1856, 31 
 
 residence of twenty-one days in Scotland requisite under the Act, 3S 
 
 GUARDIAN, 
 
 why necessary, 582 
 
 distinction between, and parent, 583 
 
 must not encourage ward to make unequal marriage, 583 
 
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INDEX. 941 
 
 QVARDIAN— continued. 
 
 a trustee, 584, 659 
 
 must exercise care of a prudent man, 659 
 
 when, may delegate trust, 660 
 
 breach of trust by, punishable, 615 
 
 oiBce of, honorary and gratuitous, 700, 703 
 
 must make no profit of his trust, 585, 660 
 
 all advantages accrue to ward, 660, 662, 702 
 
 must account for all gain, 702 
 
 must bear all losses, 661, 703 
 
 including those caused by co-guardian, 585 
 
 when court will assist, 618 
 
 duties of, as to the person of the ward. (See Ouardian of the Person.) 
 
 no right to change domicil of ward, 631 
 
 may maintain trespass against co-guardian for forcible removal of ward 
 585 
 
 duties of, as to the estate of the ward. (See Ouardian of the Estate.') 
 
 as a rule cannot purchase the estate, 661 
 
 when he may, 661 
 
 unauthorized acts of, how treated, 661 
 
 jurisdiction of Court of Chancery over, 614-617 
 
 transactions between, and ward carefully watched, 584, 705-710. (See 
 Gifts; Undue Influence.) 
 
 improper dealings with ward's property set aside as against innocent 
 third persons, 703 
 
 infant cannot be a, 714 
 removed of, 
 
 grounds for, 618, 619, 626 
 
 how effected, 620 
 remedies of the ward against 
 at law, 
 
 as regards the person, 627 
 
 as regards the estate, 627 
 in equity, 
 
 as regards the person, 627 
 
 as regards the estate, 627 
 
 in cases of mismanagement by, court may be informed by a stranger, 698 
 
 improper advantage taken of ward by, set aside, 699 
 
 time does not run in his favour, 585, 703 
 
 election of late ward to be bound by acts of, 701. (See Election^ 
 
 release of, granted shortly after majority, viewed with suspicion, 698 
 
 GUAEDIATSr BY NATURE AND NURTURE, 1 
 
 the father, 588 
 the mother, 58S 
 
 by nature till majority of child, 589 
 for nurture tUl child reaches fourteen, 589 
 jurisdiction of court over, 589, 615 
 
 GUARDIAN OF THE PERSON, 
 
 relation of, to ward that of parent and child, 583, 632 
 
 also often guardian of the estate, 584 
 
 when appointed, 604 
 
 control of the court over, 614 
 
 must not remove ward out of the jurisdiction, 617 
 
 right of, to the custody of ward, 629 
 
 enforced by habeas corpus, 630 
 
 when may apprentice ward, 632 
 
 duty of, to educate ward suitably to his expectations, 522, 634 
 
 wishes of parents to be considered, 634 
 
 contest between joint-guardians as to education to be settled by the 
 
 court, 617, 635 
 not entitled to ward's earnings, 632 
 or his personal services, 632 
 no legal liability on, to support ward, 632, 636 
 may do so out of ward's own property, 636. (See Maintenance) 
 not liable for necessaries supplied to ward, except with his own authority, 
 632 
 
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942 INDEX. 
 
 GUARDIAN OF THE PERSON— continued 
 nor for tort of ward, 633 
 
 cannot maintain action for seduction of ward, 632, 633 
 duty of, to protect ward, 633 
 
 when deprived of custody of ward under Prevention of Cruelty to Children 
 Act, 1894, 633, 805. (See Prevention of Grvdty to Children Act, 1894, 
 marriage of the ward, 
 
 consent of, to, requisite, 88 
 
 must prevent unfitting, 635 
 
 of ward of court must report any contemplated, 635 
 
 consent of, does not render improper, less a contempt, 635 
 
 consent of, to, does not render infant's settlement binding, 776 
 
 GUARDIAN OF THE ESTATE 
 is a trustee, 583-585 
 must keep it safely, 585 
 father, common law of child, 492, 589 
 general duties of, 659, 662 
 management of, out of court, 663 
 when appointed, 604 
 if, by the court, is as a receiver, 662 
 control of the court over, 614 
 must use the care of a prudent man, 659 
 must not commit waste, 662 . 
 when personally liable for waste, 683 
 real estate 
 
 must not as a rule convert ward's, 664 
 
 when conversion permitted, 665. (See Conversion.) 
 
 powers of sale, 665. (See Sale.) 
 
 when sale directed in absence of a power, 665, 666 
 
 powers of, under Settled , Land Acts, 1882 and 1890,668. {See Settled 
 
 Land Acts, 1882 and 1890.) 
 leases by. (See Lease.) 
 management of 
 
 statutory powers of, 676 
 
 under Conveyancing and Law of Property Act, 1881, 676 
 
 application of income for maintenance, &c. of ward, 677 
 
 residue to be invested in authorized securities, 677 
 
 accumulations applicable at any time for ward's benefit, 677 
 
 must keep down charges where ward owner in fee, 679 
 
 where ward tenant in tail or for life, 680 
 
 in the matter of repairs, 680-682. (See Repairs.) 
 
 cutting of timber, 677, 682-684. (See TinAer.) 
 
 working mines and minerals, 677, 681. (See Mines and Minerals.) 
 
 drainage, 684. (See Drainage.) 
 
 inclosure, 685. (See Inclosure.) 
 
 redemption of land tax, 685. (See Land Tax.) 
 
 powers of, under Lands Clauses Consolidation Act, 1845, 686. (See 
 
 Lands Clauses Consolidation Act, 1845.) 
 conveyance of lands for special purposes, 686 
 in the case of copyhold lands. (See Copyhold Lands. ) 
 personal estate 
 
 must not as a rule convert, 687 
 
 when conversion allowed, 687 
 
 duties of, as to, 687-690 
 
 must call in delits, 687, 688 
 
 proper person to prove for ward's claims, 737 
 
 must not unless authorized leave it in trade, 664, 689. (See Trade.) 
 
 management of, out of court, 663, 688 
 
 must make it productive, 688 
 
 must invest it in authorized securities, 688 
 
 receipt of money by co-guardian, 664 
 
 must not place it beyond his own control, 689 
 
 when he may employ brokers or agents, 690 
 
 when charged with interest, 688, 690, 700 
 
 duty of, to account, 688, 697, 698. (See Account.) 
 
 when allowed a sum for maintenance not usually called on to account, 
 
 642, 698 
 
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INDEX. 943 
 
 GUARDIAN OF THE -ESTATE— continued. 
 as to legacies. (See Legacies.) 
 
 entitled to release and discharge, 698. (See Release.) 
 protection of ward after attaining majority, 699, 706 
 receivers. (See Receivers.) 
 
 GUABDIANS BY 4 & 5 Ph. & M. c. 8 
 
 abduction of girls under sixteen, 589 
 age of parental control not extended by the statute, 590 
 abduction under Criminal Law Amendment Act, 1885. (See Criminal 
 Law Amendment Act, 1885.) 
 
 GUARDIANS BY CUSTOM 
 
 of the City of London, 592 
 of gavelkind, 593 
 of the manor 
 
 who is to be appointed, 593 
 
 proof of special custom for lord to appoint, 594 
 
 if special custom, father cannot appoint testamentary guardian, 594 
 
 admittance of infant copyholder, 594 
 
 powers of, under Copyhold Act, 1894, 595 
 
 GUARDIAN BY ELECTION OF INFANT, 
 how appointed, 601 
 
 superseded by that of the Court of Chancery, 601 
 wishes of the ward regarded, 6o5 
 ground for removal of, 615 
 how removed, 620 
 
 GUARDIAN DURANTE MINORE .STATE, 
 
 appointed by the Court of Probate, 601 
 when administration granted to, 601, 713 
 to whom granted, 602 
 powers of, 602 
 
 GUARDIAN IN SOCAGE, 
 
 a common law office, 590 
 
 both of person and estate, 591 
 
 to whom it belongs, 591 
 
 nature of its interest in the realty, 591 
 
 powers of, 591 
 
 right of, to custody of ward enforced by habeas corpus, 630 
 
 duties of, 591 
 
 no longer, after ward attains fourteen, 592 
 
 jurisdiction of court over, 615 
 
 grounds for removal of, 615 
 
 how removed, 620 
 
 TESTAMENTARY GUARDIAN, OR BY 12 Cae. IL, C. 24 and 49 & 50 Vict. c. 27 
 derivation of his authority, 595, 596, 597 
 father alone could formerly appoint, 492, 494, 596 
 mother may now, 494, 597. (See Chiardianship of Infants Act, 1886.) 
 infant parent may appoint by deed, 596 
 who may be appointed, 597 
 a firm may not be, 599 
 subsequent marriage of mother, no necessary disqualification, 494, 597, 
 
 620 
 appointment to a child en ventre sa mire, 598 
 but not to a child who is of age, 492, 598 
 or properly to a bastard, 89, 572, 574, 598, 606 
 what is a sufficient appointment, 597, 598 
 what is an insufficient, 597 
 office not assignable, 599 
 
 whether determined by marriage of female ward, 598, 624 
 not determined by marriage of male ward, 598 
 right of survivorship, 585, S99 
 can now be removed, 619, 620 
 
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944 INDEX. 
 
 TESTAMENTARY QV AUDI AN— continued. 
 on what grounds, 619, 620 
 how, 620 
 
 will appointing does not require probate, 597 
 duties and powers of, towards the ward's person 
 right of custody till majority of ward, 598 
 but not now as against the mother, 600, 630 
 when interfered with by the Court, 615, 616 
 enforceable by habeas corpus, 600 
 writ of ravishment of ward, 595 
 disputes as to custody of ward, 600 
 towards the estate of the ward 
 
 entitled to care and management of, 617 
 
 has no estate in, 663 
 
 powers of, subject to control of court, 663 
 
 upder the Settled Land Act, 1882, exerciseable only with consent of the 
 
 Trustees of the settlement, 670 
 whether a proper person to receive a legacy due to ward, 691 
 not such to take out of court sums due to ward under Legacy Duty Act 
 
 6gi 
 entitled to administration before guardian chosen by ward, 600 
 jurisdiction of court over, 615, 663 
 receiver can be appointed over, to, 694 
 time does not run against ward in the matter of accounts with, 600 
 
 GUARDIAN APPOINTED BY THE COURT OF CHANCERY, 
 derivation of jurisdiction of the Court, 602, 781 
 limitation of jurisdiction, 602, 783 
 grounds for appointment, 603 
 who may be appointed and who not, 605, 606 
 how appointed, 604 
 requisites for appointment, 604 
 when appointed generally, 603 
 when under Guardianship of Infants Act, 1886, 603 
 when to the person only, 604 
 
 same usually appointed to the person and estate, 604 
 amount of security required of, 604 
 
 difference in powers of, and those of other guardians, 662 
 infant made ward of court by appointment of, 88, 499, 604. (See Ward 
 
 of CovH.) 
 marriage of a female, determines the office, 6o5 
 no survivorship among, 585, 606 
 jurisdiction of court over, 615, 617, 618 
 court will assist, if ward prove refractory, 618 
 disputes as to education and residence of ward, 617 
 must not take ward out of the jurisdiction, 617 
 
 GUARDIANS APPOINTED FOR SPECIAL PURPOSES, 
 
 ' facts to be proved on application for, under Settled Estates Act, 1887, 611 
 
 GUARDIANS, FOREIGTST, 
 
 have no direct authority in England, 607 
 
 gradual recognition of their rights, 608 
 
 right of custody of ward, 609 
 
 power over ward's real and personal property, 609 
 
 jurisdiction of court over, 616 
 
 GUARDIAN AD LITEM, 
 
 practice in appointing, now common to Common Law and Chancery 
 
 Division, 815 
 must enter appearance on behalf of infant, 815 
 who may and may not be appointed, 816 
 liability of, for costs, 819 
 
 when his consent as to mode of procedure binding, 818 
 allegations of fact not denied by infant's pleadings not binding as 
 
 admissions, 818 
 service on infant defendant, 816 
 ; 
 
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INDEX. 945 
 
 GUARDIAN AD LITEM— continued. 
 
 default of appearance by infant, 816 
 
 application to court to assign, 816 
 
 Official Solicitor to the Suitors' Fund usually appointed, when infant out 
 
 of the jurisdiction, 817 
 notice of appointment of, 817 
 appointment of new, on what grounds, S17 
 Court of Probate has power to enquire into fitness of, 817 
 procedure where infant born after judgment in an action in which he 
 
 becomes an interested party, 818, 819. (See Action.) 
 
 GUARDIAN OF LUNATICS, 612. (See Lunatics.) 
 
 GUARDIANSHIP, 
 
 I honorary and gratuitous office, 700 
 
 a trust, 589, 614, 659 
 
 execution of, cannot be delegated, 626, 660 
 
 except where some moral or sufficient necessity, 660 
 termination of, 
 
 at majority of ward, 621 
 
 by completion of the period for which it was instituted, 622 
 
 by death of ward, 623 
 hy marriage of the ward, 623 
 
 except where infant is a female ward of court, 624 
 
 or is a male ward in testamentary, 598, 623 
 
 whether testamentary, of female ward terminated by, qucere, 598, 624 
 hy marriage of the female guardian, 
 
 effect of M. W. P. Act, 1882, 625 
 
 except where she is a testamentary guardian, 625 
 
 power of the court to supersede her, 625 
 iy resignation of the gunrdian 
 
 testamentary, or Chancery guardian strictly cannot voluntarily resign, 
 625, 626 
 
 GUARDIANSHIP OF INFANTS' ACT, 18S6, 
 rights of the mother under, 
 enlarged, 510 
 
 may apply for order as to custody of child, 493 , 
 
 as to access to child, 494 
 welfare of child considered, 494 
 conduct of parents considered, 494 
 of guardianship, when probably superior to that of father's testamentary 
 
 guardian, 630 
 co-ordinate, to appoint guardian to child by will, 494, 510, 597 
 joint, of those appointed by father and mother, 494, 510, 597 
 such to take effect on death of herself and father, 597 
 to appoint provisional guardian to act jointly with father, 510, 597 
 when provisional appointee has equal rights with father, 60c 
 if surviving, to appoint by deed or will guardian to child, 494, 510, 597- 
 informal expression of her wishes regarded, 606 
 sole guardian, if surviving father who has not appointed, 510 
 if such guardian appointed by him, co-guardian, 510 
 no extension of rights as to religious education of child, 523, 525, 634" 
 does not affect right of father in the matter of child's relgioas education;. 
 
 523. 634 
 
 powers of the Court of Chancery under, 
 
 to deprive father of control and custody of child, 510 
 
 to confirm provisional appointment of guardian by mother, 510, 603, 63.31 
 
 to appoint co-guardian with mother, 51c, 603 
 
 to remove mother from her statutory guardianship, 510 
 
 to remove guardian appointed by mother, J 10 
 
 to make orders as to custody of and access to child, 511 
 
 to settle questions between guardians, 600 
 
 to remove or supersede testamentary guardians, 619, 620 
 
 costs of application under, 494 
 
 powers of tlie Divorce Court under, 
 
 to declare guilty party in suit for dissolution or judicial separation unfitt 
 to have custody of child, 5 14 
 
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946 INDEX. 
 
 GUARDIANSHIP OF INFANTS' ACT, 1&S6— continued. 
 
 on death of innocent parent, guilty party not entitled as of right to 
 
 custody of child, 514 
 onus of fitness on guilty party, 514 
 
 to order restoration of custody to originally guilty party, 514 
 applications by strangers refused, 514 
 
 a guardian appointed under, has same powers as a testamentary guardian, 
 600, 603 
 
 HABEAS CORPUS, 
 
 writ of, suable out of both Divisions, 497, 498 
 
 when jurisdiction of Chancery wider than that of the Queen's Bench, 498 
 
 jurisdiction in, based on illegal restraint of the subject, 496, 497, 499 
 in the case of husband and wife, 
 
 when husband entitled to, 170 
 
 when not, 169, 170 
 
 when wife entitled to, 1 70, 433 
 in the case of an infant, 
 
 open to, 800 
 
 open to father and mother, 496, 590, 800 
 
 when court will refuse, 497 
 
 open to guardians, 496, 630, 800 
 
 to ward as against his guardian, 627 
 
 if custody illegal, when applicant entitled to, 496 
 
 procedure when neither applicant nor custodian entitled to custody, 497 
 
 where legal custody of, is shown, there the court must restore it, 497 
 
 where inability to obey writ of, no excuse for non-production of, 497 
 
 when child can elect to go back or not to the legal custody, 499, 503 
 
 male infant may elect at fourteen, 492, 501, 590 
 
 female at sixteen, 492, 501, 590 
 
 but the choice must be a wise one, 500, 590 
 under Custody of Children Act, 1891. (See Custody of Children Act, 1891.) 
 
 HABIT AND REPUTE, 
 
 evidence of, rather than marriage itself, 35 
 matrimonial consent to be clearly proved, 36 
 matrimonial cohabitation must be open and public, 36 
 repute must be general, not singular, opinion, 36 
 
 HARBOURING. (See Enticement and Harbouring.) 
 
 JIARDWICKE'S ACT, LORD, 
 scope and effect of, 19 
 clandestine marriages prevented by, 19 20 
 harsh operation of, 21 
 
 did not affect marriages of Jews and Quakers, 20 
 publication of banns rendered compulsory by, 20, 91 
 
 7IEIR, 
 
 catching bargains with, 548. (See Catching Bargains.) 
 
 liability of, for debts of ancestor. (See Day to Show Cause; Trustee Acts. 
 
 HEIRLOOMS, 
 
 no inherent power in Court of Chancery to order sale of, 669 
 
 under Settled Land Act, 1882, tenant for life may sell, with sanction o 
 
 the Court, 669 
 trustees acting under Settled Land Act, 1882, may sell, 669 
 proceeds of sale of, capital money, 670 
 how proceeds may be applied, 669 
 
 HIRING AND SERVICE, 
 
 contract of, indivisible, 865 
 consideration for, 83 1 
 when presumption of, rebutted, 832 
 within the Statute of Frauds, 833 
 contract of, does not require stamp, 833 
 
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INDEX. 947 
 
 HIRING AND SERVICE -continued, 
 parlies to the contract nf, 
 
 all persons sui juris can be, 827 
 persons not independent 
 married woman as hirer, 827 
 
 capacity of, as agent of husbmd, 827, 828 
 
 effect of M. W. P. Act, 1882, on, 827 
 
 when liable on her own, 828 
 as hired 
 
 at common law incapable of entering into, 828 
 
 exceptions, 828 
 
 under M. W. P. Acts, 1870 and 1882, 828, 82; 
 
 earnings of, her separate property, 829 
 
 has no poorer under M. W. P. Act, 1882, to pit an end to matrimonial 
 cohabitation, 829 
 
 contract of, not terminated by her marriage, S29 
 
 payment of wages to, a good "discharge, 829 
 infant 
 
 hirer : valid, where servant is a necessary, 830 
 
 hired : valid, where service beneficial to him, 754, 833. (See Apprentice; 
 Service.) 
 
 may recover wages as though of full age, 733, 830 
 lunatic, 830 
 duration of, 
 
 general hiring usually lasts for year, 831 
 
 parties may vary terms of, 832 
 
 period for payment of wages not necessarily a test of, 832 
 
 when a test in the case of weekly wages, 832 
 determination of, 
 
 by death of master, 835 
 
 when on dissolution of a partnership, 836 
 
 by discharge of servant, master giving notice, 837-840. (See Discharge 
 of Servant.) 
 
 by servant giving notice, 832, 836. (See Discharge of Servant.) 
 
 HOLDING OUT, 
 
 doctrine of, applicable to infant partner, 740, 765 
 
 effect of Infants' Relief Act, 1874, on his liability, 741. 765 
 
 infant cannot be credited with profits without any debit for losses, 741 
 
 infant bound by his own fraud, 741 
 
 but not by tort of co-partners, 741 
 
 HOTCHPOT, 
 
 when child must bring sum advanced by parent into, 543 
 
 HUSBAND, 
 
 dignior persona, 166 
 
 domicil of, matrimonial domicil, 167, 361, 456 
 
 cannot be turned out of wife's house, if matrimonial domicil, 401 
 
 legal s'^ttlement of, that of wife, 174, 175. (See Settlement; Piiof 
 
 Law.) 
 common law right of, to control and custody of wife, 168 
 limits of right, 169 
 custody and control of, must not amount to imprisonment of wife, 
 
 169 
 when only enforceable, 169 
 
 right enforcenble by writ of habeas corpus, when, 170 
 when not, 170 
 
 anti-nuptial arrangement infringing this right of, unenforceable, 170 
 right to cohabit with wife, 170 
 exceptions, 170 
 
 right of cohabitation not affected by M. W. P. Act, 1882, 361 
 may justify for killing one who threatens life of wife, 170 
 may maintain action based on loss of consortivm of wife, 170 
 action for crim. con. abolished, 170 
 
 enticing away and harbouring of wife, 171. (See Enticement and Jlar- 
 houring. ) 
 
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948 INDEX. 
 
 HUSBAND— continned. 
 
 may maintain action under Lord Campbdl's Act, 171, 172. {See Camp- 
 bell's Act, Lord. ) 
 
 right of, to vindicate ante-nuptial or post-nuptial torts to wife, 172. {See= 
 Tort.) 
 
 when, should be joined in action to vindicate tort done to wife, 173 
 
 separate existence of, and wife recognized, 168, 428 
 
 and wife do not hold their property as partners, 176 
 
 had no insurable interest in wife's life, 321. (See Insurance.) 
 
 had no absolute interest in wife's realty, 180 
 
 rights of, over wife's real and personal property at common law, 179, i8o_ 
 (See Beal Estate; Personal Estate.) 
 
 reason for existence of such rights, 180 
 
 interest of, in his own realty, 180 
 
 interest of, in wife's realty. (See Curtesy ; Seal Estate.) 
 
 interest of, in wife's chattels real, 184-186. (See Chattels Real.) 
 
 interest of, in wife's personalty. (See Personal Estate.) 
 
 interest of, in his own chattels real, 184 
 
 consent of, to wife's will formerly necessary, but not now, 251. (See- 
 Win.) 
 
 coercion of, defence open to wife in the lesser crimes, 173, 174. (See- 
 Criminal Law.) 
 
 now a stranger to wife in respect of her property, 176. (Bee Separate- 
 Estate.) 
 
 can contract with wife as with a stranger, 176, 291. (See Contract.) 
 
 gifts and loans between, and wife, 292-300. (See Gift; Loan.) 
 
 gift to, and wife, in joint tenancy, 187, 188. (See Gifts; Joint Tenancy.)/ 
 
 will of, revoked by marriage, 242 
 
 right of, to be supported by wife, 256 
 
 right of, to administer in wife's right, 328. (See Administration.) 
 
 right of, to administer to his wife's personal estate, 231-236. (See- 
 Administration.) 
 
 deemed trustee of wife's separate property, when necessary, 344 
 
 marital rights of, prevented from attaching to wife's property, by 
 M. W. P. Act, 1882, 360 
 liabilities of 
 
 to support wife and family, 255 
 
 once moral rather than legal, 255 
 
 statutory, when wife becomes chargeable, 255 
 
 ceases when wife deserts, and live in adultery, 255, 256 
 
 on wife's contracts for lierself and family. (See Contract ; Necessaries.) 
 
 order of maintenance on, under Summary Jurisdiction (Married Women)i 
 Act, 1895, 255. (See Summary Jurisdiction (Married Women) Act^ 
 
 1895-) 
 to support wife's former children, whether legitimate or illegitimate,. 
 
 516 
 for wife's ante-nuptial contracts, 257-267. (See Contract.) 
 for wife's ante-nuptial debts, 257-267. (See Debts.) 
 in respect of wife's shares, 262, 265. [See- Shareholder.) 
 for wife's ante-nuptial torts. (See Torts.) 
 for wife's post-nuptial torts. (See Torts.) 
 for wife ; ante-nuptial breaches of trust and devastavits. (See Breaches 
 
 of Trust ; Devastavit.) 
 for wife's po.<t-nuptial breaches of trust and devastavits. (See Breaches 
 
 of Trust ; Devastavit.) 
 to bury dead wi'e, 276 
 former incapacity to contract with wife, 291. (See ContraH.) 
 present capacity to contract with wife, 292. (See Contract.) 
 disputes between, and wife as to their property, 397-400. (See Disputes 
 
 between Husband and Wife as to Property. ) 
 remedies of wife against, civil and criminal. (See Bemcdies of Marrie(f 
 
 Women.) 
 remedies of, against wife. (See liejn dies of Married Women.) 
 to give account of moneys of wife received by him to her use, 400 
 cannot sue wife for personal tort committed during coverture even after 
 
 iis termination, 168, 401 
 capacity and incapacity of wife and, to give evidence against each other 
 in criminal matters, 243-246. (See Evidence.) 
 
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INDEX. 949 
 
 iH USB AND — continued, 
 
 mutual incapacity of wife and, to give evidence of non-access to each 
 other so as to bastardize issue, 477, 478. (See Evidence; Non- Access.) 
 
 bound by admissions of wife made within scope of her authority, 246 
 
 cannot steal from wife when living with her, 246. (See Desertion; 
 Larceny.) 
 
 when, may be prosecuted for wrongful dealings with her property, 246, 
 247,402 
 
 interest of, under a marriage settlement, 131, 132 
 
 covenant by, in marriage settlement, 132 
 
 covenant by, to settle his after-acquired property, 139, 140. (See Settle- 
 ment; Covenant to settle after-acquired R-operty.) 
 
 JLLEGITIMATE CHILDREN, \ 
 
 who is a bastard, 566 
 strictly a stranger to his parents, 475, 568 
 difference between adulterine bastards and spurious issue, 568 
 within the prohibited degrees of kinship, 568 
 recognition of kinship between parents and, 568 
 Provident Nominations and Small Intestacies Act, 1883, 573 
 rights of, 
 
 statutory, to be supported by parents, 475, 569 
 to acquire a name by reputation, 92, 569 
 
 when they can enforce covenants in a marriage settlement, 14S 
 iequents to, 
 
 gift to future, deemed contra honos mores, 571 
 
 "child" raeaxis primd facie legitimate child, 569, 570 
 
 when they can take as "children," 569 
 
 when an inquiry as to the paternity of, involved, they cannot take as, 
 
 569 
 bastard en ventre sa mire can take as "child," 571 
 but if born after testator's death cannot, 571 
 <lisahilities of, 
 
 cannot inherit real or succeed ah intestate to personal property, 484, 487, 
 
 572, 574 
 not within Lord Campbell's Act, 563, 572 
 cannot have a testamentary guardian appointed to them, 89, 572, 574, 
 
 598, 606 
 guardian nominated may be appointed by court without reference, 606 
 defective execution of powers not supplied in their favour, 572 
 custody of. (See Custody and Control of Children. ) 
 support of . (See Father ; Mother. ) 
 when wife's must be supported by husband, 516, 580 
 when they may be maintained out of property of legitimate brother, 651 
 domicil that of mother, 581 
 settlement of, that of mother till sixteen, 579 
 
 ILLNESS, 
 
 permanent, of servant, a ground of discharge without notice 839, 849 
 
 temporary, not a ground, 839 
 
 of master, not a ground for dissolution of contract of apprenticeship, 
 
 IMPEDIMENTS TO MARRIAGE, 
 
 di.'tinction between canonical and civil disabilities, 62 
 grounds for suits for nullity of marriage, 62 
 intervention of Queen's Proctor in suits for nullity, 66 
 canonical, 
 
 impotency, 63-66. {See Jmpotency.) ' 
 
 want of consent of patties. (See Consent nf Tarties ; Duress ; Error ; 
 Fraud.) 
 civil, 
 
 nonage, 73-75. (See Konaz/e.) 
 insanity, 75-77. {See Insanity.) 
 
 drunkenness, 77, 78. {See Drunkenness.) „, . ,. 
 
 relationship within the prohibited degrees, 78-go. (See Melatumshp 
 u-iihin the Prohihiied Degrees.) 
 
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950 IKDEX. 
 
 IMPEDIMENTS TO MAJiBIAG'E—continueil. 
 
 previous marriage, 80-84. (See Prevwus Marriage.) 
 Royal Marriage Act, 84, 85. (See Boyal Marriage Act.) 
 
 IMPOTENCY, 
 
 canonical impediment to marriage, 63 
 
 capacity for consummation implied in marriage contract, 63 
 
 ■what it is, 63 
 
 party cannot set up his or her own, 63 
 
 suit for nullity on ground of, brought during lifetime of both parties, 63 
 
 to be brought within reasonable time, 65 
 
 when decree will be granted, 63, 64 
 
 no decree when reasonable hope of cure, 64 
 
 must exist at time of marriage, 64 
 
 order for inspection of person, 64 
 
 onus of proof on petitioner, 64 
 
 triennial cohabitation, 65, 66. (See Triennial Cohabitation.) 
 
 rule of, why requisite, 65 
 
 proof of, of husband, ground for bastardizing issue of wife, 478 
 
 IMPROVEMENTS. (See Eepairs.) 
 
 ornamental, on ward's property not allowed for, unless substantial and 
 
 beneficial, 681 
 when tenant for life may apply to court for a scheme for, 681 
 
 IMPROVIDENCE, 
 
 rectification of marriage settlements on ground of, 152 
 
 INCLOSURB, 
 
 power of guardians to accept allotments for, 685 
 
 guardian nominated to infant under Inclosure Act, 1845, ^^S 
 
 INCOME,' 
 
 of separate estate, 
 
 affected by the separate use, 348 
 
 gift of, to separate use vests capital to separate use, 348 
 savings and arrears of, are separate property, 348 
 when recoverable by wife from husband, 367, 399 
 when not recoverable, 367, 399 
 
 of infant's property ajplicable for his maintenance, &c., 640, 642, 677. 
 (See Maintenance.) 
 
 INCOME TAX, 
 
 profits of wife for purposes of, deemed profits of husband, 399 
 "profits" include "income," 400 
 under Finance Act, 1894, 
 
 joint income of husband and wife chargeable under Schedule D or E to 
 be treated as separate, 400 
 
 INCUMBRANCES, 
 
 infant owner in fee must keep down interest on, 679 
 
 need not pay off charge, 679 
 
 charge paid off remains personalty unless mejger beneficial, 679 
 
 guardians must keep down interest on, 639, G77, 679 
 
 but not so as to deprive infant of support, 639 
 
 infant tenant in tail must keep down iutertst on, 680 
 
 so tenant for life, 680 
 
 INDEMNITY, 
 
 covenant of, in separation deed, when good considtration, 440 
 
 INDIA, 
 
 marriages in, per verba de pritsenlii iii 
 statutory enactments in reference to, ill 
 divorce in, 
 
 recogniticn cf, in the case cf Biitith Christian subjects, 473 
 
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INDEX. 951 
 
 INDUSTRIAL SCHOOLS ACTS, 1866 and 1880, 
 
 when child under fourteen may be sent to, 716 
 power of justices under, 803 
 
 INFANCY, 
 
 when terminated, 713 
 
 a personal privilege only, 720 
 
 must not be used as a cloak for fraud, 720 
 
 not an "incapacity" within meaning of Conveyancing and Law of 
 
 Property Act, 188 1, 714 
 plea of, by adult acceptor of a bill that it was drawn during infancy 
 
 ineffectual, 726 
 proof of, in an action, 819 
 
 INFANT, 
 
 who is an, 711 
 when ot age, 713 
 
 is under protection and favour of the law, 715, 720 
 what offices he may fill, 713 
 what he may not fill, 713 
 cannot make a will, 665, 714 
 may take by descent or purchase, 718 
 
 may appoint guardian for child, 596, 715. (See Testamentary Guardian.) 
 male, at fourteen, may make choice of residence, 492, 501, 590 
 female, at sixteen, 492, 501, 590 
 choice must be a wise one, 590, 63 1 
 cannot acquire a domioil of choice, 631 
 
 lesponsibility of, for criminal acts, 715, 716. (See Criminal Law.) 
 evidence of, 717, 718. (See Evidence.) 
 maintenance of. {See Maintenance.) 
 doctrine of election applies to, 728. (See Election.) 
 remedies for the protection of , (See Protection of Infants .) 
 acts and contracts of, 
 
 distinction between acts and contracts, 723 
 
 distinction between void and voidable, 721. (See Void; Void and 
 
 Voidable.) 
 acts that are valid though voidable, 726 
 void acts, 
 
 all necessarily prejudicial, 725 
 
 will, whether affecting real or personal property. (See Witt.) 
 
 examples of, 725, 726 
 
 may be set aside during minority, 726 
 valid or binding acts, 
 
 such as do not touch his interests, 727 
 
 what bound to do, he can validly do, 727 
 
 execution of collateral power, 731 
 
 appointment by deed, if authorized, 373 
 contracts of. (See Contract, of an Infant; Necessaries.) 
 
 few formerly absolutely void, 732 , „ ,• ^ . . <> , 
 
 effect of Infants' Relief Act, 1874. (See Infants Relief Act, 1874.) 
 
 cannot be made a bankrupt in respect of, 736. (See Bankrupt.) 
 
 debt owed by, cannot be set off, 762 
 
 adult bound when contracting with, 720 
 
 not bound by recitals in a deed, 720 
 
 or by a proviso in a deed to which he is not a party though takmg a 
 benefit under it, 720 
 
 mortgages by. {See Mortgage.) 
 
 ratification of acts and contracts, 723, 758-766. (See Eatification.) 
 
 avoidance of, 766-769. (See Avoidance.) 
 
 when hound, „ , . . ,^ 
 
 by conditions annexed to property, 727, 728. (See Conditions.) 
 
 by'^decree of sale or of foreclosure or judgment in law, 728-731. (See 
 Judgment; Day to show Cause; Trustee Act, 18^0; Lands Clauses Act, 
 1845; Partition Acts ; Infants' Settlement Act, 1855.) 
 iahUities of, 727, 728 
 
 to pay rent, 727 
 
 for his torts, 757 
 
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952 INDEX. 
 
 INF fCHt— continued. 
 
 to bury deceased spouse, 276 
 actions hy and agaimt. {See Action; Guardian ad litem ; Next Friend.) _ 
 
 for breach of promise of marriage, 112-119. (See Breach of Promise of 
 
 Marriage, Action for.) 
 service on, as defendant, 816 
 effect of default of appearance by, 816 
 
 allegations of fact not denied by his pleadings not binding as admis- 
 sions, 817 
 cannot make admissions in, 810, 818. (See Action.) 
 practice where, as plaintiff is born after judgment in a, suit in which he 
 is interested, 8 1 S 
 feion, 
 
 custody of, 613 
 lunatic, 
 
 where court may appoint guardian to, though not so found by inquisi- 
 tion, 613 
 offender, 
 
 apprenticing of, 756 
 emigration of, 756 
 illegitimate, 
 
 settlement of, that of mother till sixteen, 579 
 
 INFANTS' CUSTODY ACTS, 1839 AND 1873, 
 
 jurisdiction of Court of Chancery by, in favour of mother, 506 
 
 alteration effected by the Acts, 508 
 Act 0/1839 {Talfourd's), 
 
 provisions of, 506, 507 
 
 objects of, 506 n 
 
 absolute discretion of court in the case of infants under seven, 507 
 
 wide discretion in the case of those over seven, 507 
 
 children of English parents born abroad under, 507 
 ActoflS^z, 
 
 provisions of, 507, 508 
 
 right of mother to custody of child under, 494 
 
 as against testamentary guardian of father, 630 
 
 on what principles the court acts, 508 
 
 right of mother extended over children up to sixteen, 508 
 
 does not give jurisdiction in the case of children over sixteen, 508 
 
 grounds of interference under, 508 
 
 benefit of child first consideration of the court, 494, 508 
 
 agreement by father in separation deed to give up control of child not 
 invalid, 508 
 
 formerly such agreement not enforced, 509 
 
 gradual recognition of such agreements, 509 
 
 father can, in spite of agreement, resume control, 509 
 
 court guided by interests and benefit of child, 509 
 
 INFANTS' RELIEF ACT, 1874, 
 effect of section I, 735 
 
 many contracts formerly valid now void, 723 
 
 account stated for necessaries invalid, 726 
 
 on acceptance of bill of exchange, 726 
 
 on a promissory note, 726 
 
 all contracts, except for necessaries, void, 735 
 
 exception, 735 
 
 no action to be brought on ratification of contracts, 735. (See Ratification.) 
 
 not applicable to contracts incident to property of a permanent natu)fe 
 with obligations attached, qvcere, 736, 737 
 
 promise of marriage within, 116, 736, 744, 763 
 
 does not affect contracts of apprenticeship, 756 
 effect of section 2, 
 
 many contracts formerly valid rendered incapable of ratification, 723 
 
 no ratification after age of infant's promise to pay a debt actionable, 
 
 735, 761 
 no ratification after age of infant s promise or contract actionable, 735, 761 
 exception, 763 
 infant's debt cannot be set oft' or found a counterclaim, 762 
 
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INDEX. 958 
 
 INFANTS' BELIEF ACT, 1S74— continued. 
 new promise necessary, 762 
 
 to what contracts Act will not apply. (See Ratification.') 
 contracts of infants easily avoided, 766 
 does not entitle infant to recover back price of things paid for by him 
 
 and consumed, 735, 769 
 marriage settlement of infant not within, 779 
 
 INFANTS' SETTLEMENT ACT, 1855. (See Marriage Settlement of Infants; 
 Ward of Court.) 
 effect of execution of power by infant under, 732 
 
 INHERITANCE, 
 
 no right of, per se, in children by English law, 553 
 
 eldest son takes the real estate on death of parent intestate to the ex- 
 clusion of brothers and sisters, 554 
 
 daughters, if no son, take as tenants in common, 554 
 
 on death of father intestate, how his personal property divided, 554. 
 (See Statute of Distributions, ) 
 
 how divided on the death of the mother, 554 
 
 testamentary gifts to child or other Issue dying in testator's lifetime do 
 not lapse under Wills Act, 1837, 554 
 
 INJUNCTION, 
 
 restraint by, of proceedings in the Divorce Court done away, 439 
 
 grounds for, to be pleaded by way of equitable defence, 439 
 
 not open to creditor to prevent married woman parting with separate 
 
 estate before judgment, 337 
 married woman entitled to, 401 
 when wife can exclude husband from entering house her separate 
 
 property though the matrimonial domicil, 359, 402, 425 
 wife may restrain husband by, from interfering with separate business, 
 
 401 
 infant not liable to, for breach of contract, 753, 755 
 when, on attaining majority liable to, for breach of contract, 753, 755, 819 
 
 INJURY, 
 
 mutual right of husband and wife to sue for, done to either of them, 170 
 married woman may sue alone in respect of, done to her or her property, 
 
 172, 331, 334, 401, 424. (See Action; Separate Estate; Tort.) 
 mutual right of parent and child to maintain action in respect of, done 
 
 to them, 557-564. (See Tort; Lord Campbell's Act.) 
 right of master to maintain action for, done to servant, 862 
 
 INSANITY, 
 
 bar to valid marriage, 75 
 
 mere weakness of understanding is not, 75 
 
 strict proof of, required, 75 
 
 must exist at time of marriage, 76 
 
 marriage contracted between two periods of, 76 
 
 acquiescence during lucid interval, 76 
 
 proceedings by person becoming sane to set aside marriage had when 
 
 non-compos, 76 1 
 
 on whom lies burden of proof of sanity or insanity, 77 
 marriage of lunatic so found by inquisition, 77 
 
 INSURANCE, 
 by husband, 
 
 whether husband has insurable interest in wife's life under M. W. P. 
 
 Act, 1882, quaire, 321 
 policy of, on his own life a trust for benefit of wife and children, or of 
 wife or children, 321 
 by leife, 
 
 insurable interest in husland's liTe, 321 
 cannot insure husband's life for his benefit, 321 
 policy on her own or husband's life for her separate use, 321 
 on her own life for the btntfit of husband and children, or husband or 
 children, 321 
 
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954 INDEX. 
 
 ISSVUANCB— continued. 
 
 where interests of parties are not otherwise expressed on face of, 
 
 survivors take as joint tenants, 322 
 policy of, forms no part of the estate of the insured so long as any object. 
 
 of the trust remains unperformed, 322 
 premiums paid with intent to defeat creditors recoverable, 322 
 appointment of trustees by the insured or the court, 322, 323 
 effect of default of appointment, 323 
 application to the court by petition, or if under Conveyancing Act, 1881, 
 
 by summons, 323 ' 
 surrender value of, realizable, by trustee, 323 
 right of parent to effect policy on life of child, 
 
 father has no insurable interest in life of child on grounds of ties of 
 
 blood and affection, 534 
 though policy void, when father may retain money as against child's 
 
 creditors, 534 
 he may have a pecuniary interest, 535 
 mother under like conditions as father, 534 
 adult child in like condition as parent, 534 
 
 when infant limited owner entitled to keep policy moneys paid on premises 
 insured by him, 681 
 
 INTEEEST, 
 
 gifts of, vests legacy, 636, 648. (See Maintenance. ) 
 when trustee or guardian charged with, 690, 700 
 when executor charged with, 692 
 
 INTERNATIONAL ASPECT OF DIVORCE. (See Divorce.) 
 
 INTERNATIONAL ASPECT OF MARRIAGE. {See Marriage.) 
 
 INTESTACY. (See Administratinn ; Curtesy; Dov>er; Inheritance; Judicial 
 Reparation; Protection Order.) 
 
 INTESTATES ESTATES ACT, 1890, 
 
 right of widow of childless husband under, 234, 239, 240 
 
 INTOXICATING LIQUORS (SALE TO CHILDREN) ACT, 1886, 804 
 
 INVESTMENTS, 
 
 when wife may and may not make, of money allowed for household 
 
 purposes, 398, 399 
 when husband and wife may follow improper, of each other's money, 
 
 294. 358, 399 
 standing in sole name of wife, or jointly in her and a stranger's primd- 
 
 facie her own, 294, 326, 358 
 standing in husband's and wife's, held in joint tenancy, 296 
 powers of trustee or guardian as to, 689, 690. (See Guardian of the 
 
 Estate.) 
 of legacy due to ward, 690. (See Legacy.) 
 
 ir.LLAND, MARRIAGE LAWS OF 
 
 canon law the foundation of Irish marriage law, 45 
 
 effect of 7 & 8 Vict. c. 81, 45 
 
 canonical hours, 8 A.M. to 2 P.M., 54 
 marriages of Protestant Episcopalians, 46-48 
 
 after publication of banns, 47 
 
 on licence, 47. (See Licence, Common and Special, Marriage on, in 
 Ireland.) 
 
 on registrar's certificate, 47. (See Mixed Marriages.) 
 marriages of Roman Catholics, 48-50 
 
 decrees of Council of Trent, prevail in Ireland in foro conscientice, 48 
 
 registration of, 49 
 
 after publication of banns, 49 
 
 on licence, 49. (See Licence, Common and Special, Marriage on, in 
 Ireland. ) 
 
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INDEX. 955 
 
 IRELAND, MARRIAGE LAWS OF— continued. 
 
 on registrar's certificate, 49. (See Mixed Marriages.) 
 marriages of Presbyteriann, 50, 51 
 marriages of Quakers, 51 
 marriages of .Tews, 52 
 
 110 special licence for, 53 
 
 both parties must be Jews, 53 
 
 duty of secretary of a Synagogue, 52 
 marriages of members of other denominations, 53 
 
 marriages in the presence of the registrar, 54, 55 
 
 presence of, not required except at marriages celebrated in his office, 46 
 . S2> S3. 54 
 mixed marriages, 55-58. (See Mixed Marriages.) 
 divorce, 58-60. (See Divorce.) 
 
 difference between Irish and English law of, 58 
 
 Irish Matrimonial Causes Court can grant judicial separation, 59 
 
 ISSUE, 
 
 birth of, capable of inheriting necessary to curtesy, 216. (See Curtesy.) 
 when may enforce limitation in marriage settlement in their favour, 147, 
 148 
 
 JACTITATION OF MARRIAGE, 
 what is, 448 
 effect of suit for, 448 
 defences in suit for, 448 
 
 JEWELS, 
 
 when wife's, form part of her paraphernalia, 406. (See Paraphernalia.) 
 if settled to her separate use liable to be taken in execution, 407 n 
 
 JEWS, 
 
 validity of marriages of, recognized, 104 
 
 not affected by Lord Hardwicke's Act, 20 
 
 not affected by 4 Geo. IV. c. 76, 22 
 
 recognized by 6 & 7 Wm. IV. c. 85, 23, 104 
 
 both parties must be, 104 
 
 registration of the marriage of, by secretary of the husband's synagogue, 
 
 104 
 presence of the marriage registrar dispensed with, 105 
 marriages of, in Ireland, 52, 53 
 marriages of, in Scotland, 27, 29 
 validity of marriage of, settled by the law of, 104 
 
 JOINT STOCK COMPANY, 
 
 married woman may hold shares in, 324. (See Shareholder; SJiares.) 
 not bound to accept married woman if contrary to articles of association, 
 324 
 
 JOINT TENANCY, 
 
 effect of gift to husband and wife in, 187 
 
 since M. W. P. Act, 1S82, husband and wife hold no longer by entireties, 
 
 187 
 effect of gift to husband and wife and a stranger in, 187 
 rule as to joint inteiest of husband and wife one of construction only 
 
 M. W. P. Act, 1882, has not altered the rule, 187 
 husband and wife probably hold separate interests, 188 
 marriage per se not a severance of, 188 
 testamentary guardians hold guardianship in, 599 
 
 JOINTURE, 
 
 objects of, 224 
 
 definitions of, 224 
 
 requisites of a legal, 224, 225 
 
 infant wife barred by proper, 225, 772 
 
 Digitized by Microsoft® 
 
956 IKDEX. 
 
 JOINTURE— cowiiMMec?. 
 
 right of wife to, not barred by her adultery, 225 
 when wife must elect between, and dower, 225, 226 
 wife's equities after release of her rights, 226 
 
 JUDGMENT, 
 Aoio enforced 
 in the case of a married woman, 
 
 formerly only on free separate property existing at date of contract, 390 
 
 430 
 under M. W. P. Acts, 1882 and 1893, 
 
 on free separate property at date of, 283, 285, 286, 358, 391, 430, 431 
 
 even if she has become discovert, 430 
 
 unconditional, cannot be signed against her, 431 
 
 in default of appearance, 431 
 
 in default of defence, 431 
 
 form of, under M. W. P. Act, 1870, 431 
 
 form of, under M. W. P. Act, 1882, 431 
 
 execution on, 432. (See Execution.) 
 Ami) not enforced, 
 
 by committal for post-nuptial debts, 433 
 
 or by bankruptcy notice, 433 
 effect of joint, against husband and wife, 428 
 74 the case of an infant, 
 
 when binding, 728, 767 
 
 when set aside against him, 728, 767 
 
 JUDGMENT DEBT, 
 
 married woman liable to be imprisoned for ante-nuptial, 319, 336 
 
 JUDICIAL SEPAEATION, 
 
 same as the earlier divorce d mensd et thoro, 447 
 
 difference between, and divorce a vinculo, 448 
 
 grounds for granting under Divorce Acts, 447 
 
 under Summary Jurisdiction (Married Women) Act, 1895, 282, 352. (See 
 
 Summary Jurisdiction {Married Women) Act, 1895.^ 
 Irish Matrimonial Causes Court can grant, 59 
 ■effect of, 
 
 does not entitle Court to alter separation deed, 441, 442 
 
 wife constituted /cme sole as long as decree lasts, 281, 282, 351 
 
 as regards contracts, 281, 351 
 
 as regards actions, 281, 351 
 
 as regards the office of trustee, 352 
 
 or executrix or administratrix, 352 
 
 as regards testamentary capacity, 369 
 
 irees husband from liability for her torts, 272 
 
 ^nd her debts and contracts, 312 
 
 except he fail to pay agreed alimony, 312 
 
 upon his interest in her real estate, 183 
 
 in her choses in action or reversion, 199, 351 
 
 upon her interest in her own specific chattel?, 202, 351 
 
 husband not entitled to administer to estate of wife dying during, 232- 
 
 234, 354, 361 
 resumption of cohabitation does not affect dealings of wife duiing, 352 
 upon restraint upon anticipation, 377 
 
 JURISDICTION, 
 
 father out of, may exercise control over child within, 588 n 
 of the Court of Chancery. (See Chancery, Court of.) 
 
 ward not to be taken out of the, 505, 617, 797. (See Ward of Court ) 
 
 when ward allowed to go out of the, 506, 797, 798 
 
 how enforced. (See Contempt of Court.) 
 of Divorce Court. (See Divorce Court. 
 
 JUROR, 
 
 infant cannot be a, 714 
 
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INDEX. 957 
 
 LACHES. (See Acquiescence.) 
 
 not to be imputed to an infant, 716 
 may be after attaining majority, 766 
 
 LANDS CLAUSES CONSOLIDATION ACT, 1845 , 
 
 infant bound by conveyance of his land under, 731 
 
 notice to treat under, must be given to guardian of infant, 685/ 
 
 compensation money under ;^20 payable to guardian, 686 
 
 when above that sum not payable, 686 
 
 to what purposes compensation money to be devoted, 68 1 
 
 LAND TAX, 
 
 redeemable by guardian on behalf of ward, 685 
 
 how redeemable, 685 
 
 when guardian entitled to indemnity in respect of, 686 
 
 LARCENY, 
 
 definition of, 895 
 
 by a servant, 
 
 more serious offence than simple, 898 
 
 where the servant has the bare custody, 896 
 
 distinction between embezzlement and, 895 
 
 person indicted for, may be convicted of embezzlement, 897 
 
 master has no right to search boxes of servant on suspicion of, 89S 
 
 in the case of husband and wife, 
 
 one cannot prosecute the other for, 246 
 
 exception under M. W. P. Act, 1882, 174, 246, 359, 402-403 
 
 property taken on leaving or deserting only, 246, 359, 403 
 
 meaning of "leave," 247, 403 
 
 whether prosecution to be limited only to, 247 
 
 married woman may prosecute stranger for, of her property, 402 
 
 sufficient to lay in the indictment the property was hers, 403 
 
 LEASE. 
 
 by an, infarii, 
 
 when valid, 738 
 
 best rent need not be reserved if advantageous to, 738 
 
 not void if no rent reserved, if advantageous to, 738 
 
 avoidance of, by some act of notoriety, 738 
 
 lessee cannot avoid because of infancy of lessor, 738 
 
 lessor cannot avoid during infancy, 738 
 
 his heir may avoid if he die under age, 738 
 
 ratification of, 738, 765 
 
 by parol voidable, 738 
 
 may recover for use and occupation, 738 
 
 may accept surrender, 727 
 to an infant, 
 
 voidable, 739 
 
 must pay rent or give up, 739 
 
 liable for rent, if occupying after majority, 739 
 
 when liable to action for use and occupation, 739 
 
 must be avoided within a reasonable time, 739 
 
 effect of renewal to, and adult jointly, 739 
 by guardian of wa/rd's land, 
 
 in socage, 591 
 
 testamentary, 600 
 
 powers of, originally limited, 671 
 
 extension of by i Wm. IV. c. 65, 672 
 
 by Settled Estates Act, 1856, 672 
 
 by Settled Estates Act, 1877, 672 
 
 powers of, under, 672-674 
 
 Court may vest its powers of, in trustees, 674 
 
 by the Conveyancing and Law of Property Act, 1881, 674- 
 
 how powers exerciseable under, 674 
 
 by the Settled Lands Act, 1882 and 189Q, 674 
 
 powers of under, 674 
 
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958 INDEX. 
 
 LEASE — continued. 
 
 gnardian may accept surrender of, 675 
 power of, on surrender, 675 
 when, allowed costs of renewal, 680 
 has a lien for such costs, 680 
 in case of a married woman's land ' 
 
 non-separate, 
 
 husband's interest in, 184 
 
 husband not a purchaser of, 184 
 
 husband's disposition of, 182, 184, 185, 195 
 
 joint disposition for twenty-one years under 32 Hen. 8, c. 28, 182, 194 
 
 his representatives could sue for arrears of rent, 182, 185 
 
 husband's assignment of, absolute, or by way of sub-lease or mortgage, 
 
 I9S 
 election of wife on termination of coverture to affirm or disaffirm, 183, 
 
 194 
 husband's powers over her settled and unsettled estates under Settled 
 
 Estates Act, 1887, 194 
 joint powers of husband and wife tenant for life under Settled Land Act, 
 
 1882, 183, 19s 
 by wife as a feme sole, 195. (See 8i4lhd Lands Acts, 1882 and 1890.) 
 under M. W. P. Act, 1882, full power of, 189 
 also under Agricultural Holdings Act, 1883, 195 
 powers of dowager to, under Settled Estates Act, 1877, 221 
 powers of tenant by curtesy under Settled Estates Act, 1877, and Settled 
 
 Land Act, 1882, 217 
 
 LEASEHOLDS. (See Chattels Beal.) 
 
 LEGACY, 
 
 a chose in action, 198 
 
 in bar of dower entitled to priority, 229 
 
 mere, by husband to wife not entitled to priority, 295 
 to an infant 
 
 vested by gift of interest, 636, 648 
 
 when he may be maintained out of. (See Maintenance.) 
 
 due to ward, when pajable to guardian, 691 
 
 when not, 691 
 
 guardian's receipt for, 691 
 
 parent cannot give receipt for, to child, 530 
 
 unless specially authorized, 530 
 
 whether testamentary guardian can receive, 691 ' 
 
 cannot take out of court sums paid in under Legacy Duty Act, 691 
 
 appropriation by executor of specific sum to meet, 692 
 
 appropriation to meet, payable infuturo binds infant, 692 
 
 also where made by the court, 692 
 
 when executor liable for interest on, 692 
 hy parent to child, 
 
 vfhen adeemed, 540. (See Ademption ; Portion.) 
 
 when portion satisfied by, 540. (See Satisfaction.) 
 
 rule against double portions, 539 
 conditions in, in restraint of ma 'riage, 7-1 1 
 
 when valid, 9, 10 
 
 when invalid, 9, 10 
 to servants, 825, 826. (See Servant.) 
 
 LEGACY DUTY ACT, 
 
 payment into Court under, does not make infant legatee ward of court, 
 
 782 
 duties of executor under, 692 
 
 LEGAL ESTATE, 
 
 disposition of, by married woman, 189, 365, 366. (See Acknowledgments 
 
 to Bar Wife's nterests ; Heal Est'ite.) 
 when, in infant mortgagor the rights of mortgagee, 730 
 when not, 731 
 
 LEGAL PERSONA L KEPRESENTATIVE. (See Personal Rppresentative.) 
 
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INDEX. 959 
 
 LEGITIMACY, 
 
 arises from birth in lawful wedlock, 475, 566 
 
 or by act of legitimation, 475. (See Legitimation per Suhsequens Matri- 
 monium. ) 
 
 presumption of, where child born soon after marriage, 476 
 
 strong presumption in favour of, 476, 566 
 
 presumption rebuttable, 477, 480, 481, 566, 567. (See Eoideme; Non- 
 access. ) 
 
 question of, is a fact for the jury, 482, 483 
 
 determined by the law of the domicil, 486, 487. (See Domicil.) 
 
 necessary to succession ab intestato to real property, 475, 484 
 
 LEGITIMACY DECLAEATION ACT, 1858, 
 who may bring petition under, 488 
 object of, 488 
 
 what claims will not be considered in a petition under, 488 
 if petitioner an infant, guardian must have no interest in his being 
 
 declared illegitimate, 488 
 parents in a petition under, cannot give evidence of non-access, 489 
 practice under, 489 
 
 LEGITIMATION BY IMPERIAL RESCRIPT, 
 
 legitimation by Act o£ Parliament equivalent to, 475, 486 
 
 LEGITIMATION PER SUBSEQUENS MATRIMONIUM, 
 
 not recognized by English law as applicable to domiciled English 
 
 subjects, 484, 568 
 effect of, when permitted, 476, 484 
 not recognised in English law in regard to succession to land, 484, 487, 
 
 568 
 or to personal property where claimant would not be legitimated by the 
 
 law of his domicil, 484, 487 
 validity of, depends on domicil of father at birth of the ante-natxig, 485, 
 
 487 
 when recognized, 
 
 as to real property, when ante-natus, designated as " child," takes under 
 
 a testamentary disposition, 485 
 also in a claim ah intestato by a person whose domicil of origin permits 
 
 his legitimation, 476, 485, 486 
 after marriage must be lawful, 485, 486 
 
 LIABILITY 
 
 0/ husband 
 
 to support wife and familv, 255. (See Husband; Father; Necessaries.) 
 for wife's ante-Duptial debts and contracts. {S&6 Debts ; Contract.) 
 for wife's post-nuptial debts and contracts. (See Debts ; Contract.) 
 for wife's ante-nuptial and post-nuptial breaches of trust and devastavits. 
 
 (See Breach of Trust ; Devastavit.) 
 for wife's ante-nuptial and post-nuptial torts. (See Tort.) 
 to bury dead wife, 276 
 of wife 
 
 to support husband and family, 256. (See_J/o«Acr/ Wife.) 
 
 for her ante-nuptial and postnuptial debts and contracts. (See Contract; 
 
 Debts ; Separate Estate. ) 
 for her ante-nuptial and post-nuptial breaches of trust and devastavits. 
 
 (See Breach of Trust ; Devastavit.) 
 for her ante-nuptial and post-nuptial torts. (See Tort.) 
 to bury dead husband, 276 
 of married woman 
 personal 
 
 ' for ante-nuptial contracts, 336. (See Contract.) 
 none, for post-nuptial contract, 335. (See Contract.) 
 none, for ante-nuptial and post-nuptial torts, 270. (See Tort.) 
 
 for post-nuptial contracts. (See Contract; Separate Estate.) 
 
 inequity in respect of her free separate property, 2S0, 319, 335, 336 n, 
 43" 
 
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960 INDEX. 
 
 LIABILITY— continued. 
 
 wide, under M. W. P. Act, 1882, 283, 2S8, 335, 430 
 
 increased, under M. W. P. Act, 1893, 280, 289, 336, 391, 396, 430 
 
 separate property in respect of which her, exists, 390-397. (See Separate 
 Estate; Power of Appointment.) 
 of master and servant, 
 
 of master for servant's contracts, 875-877. (See Master.) 
 
 for servant's torts, 881-886 
 
 of servant for his master's torts, 868, 891 
 
 criminal of master, 888, S89 
 
 criminal of servant, 892 
 of parents. (Sefi Parent.) 
 of children. (See Children.) 
 
 LIBEL, 
 
 of one sponse sufficiently published if communicated to the other, 16S 
 married woman may now solely bring action for, 173, 401. (See 2ori.)i 
 
 LICENCE, 
 
 what is a, 95 
 common 
 marriage on, in England, 
 
 by whom granted, 95 « 
 
 residence for marriage on, 96 
 
 where marriage on, to be celebrated, 96 
 
 what oath to be taken by party applying for grant of, 96 
 
 marriage must be had within three months of date of issue, 96 
 
 caveat may be entered against grant of, 96 
 
 difference between, and banns as to necessity for accuracy of names, 9& 
 
 false name or misdescription (unless fraudulent) in, does not invalidate 
 marriage on, 97 
 
 fraud must be common to both parties to render marriage on, void, 97 
 marriage on, in Ireland, 
 
 where parties are Protestant Episcopalians, 47 
 
 where parties are Eoman Catholics, 49 
 
 where parties are Presbyterians, 5 1 
 
 in mixed marriages, 57. (See Mixed Marriages.) 
 special 
 
 marriage on, in England, ig, 95 
 
 grant of, by Archbishop of Canterbury alone, 95 
 
 effect of, 95 
 
 validity of, for three months, 95 
 marriage on, in Ireland, 
 
 by whom granted, where both parties are Protestant Episcopalians, 47 
 
 where both parties are Roman Catholics, 49 
 
 where both parties are Presbyterians, 51 
 
 where both parties are of other denominations, 53 
 of superintendent-registrar, 
 
 proper notice for, to be given, 100 
 
 notice need not be suspended in office, 100 
 
 may be granted one whole day after entry, 100 
 
 validity of, for three months, 100 
 
 caveat may be lodged against, 100 
 
 fifteen days' residence in superintendent-registrar's district necessary 
 before application for, 100 
 
 perjury in obtaining, not a ground of nullity, 100 
 
 fraudulently giving a false name perjury, loi 
 
 differences between certificate and, loi 
 
 clergyman of Church of England not bound to marry on, 22 n, 97 
 of child over seven to take part in public entertainments, 805 
 
 LICENSING ACTS, 
 
 5«ass-criminal liability of master for acts of servant under, 889- 
 knowledge of masteractual or constructive of unlawful uee of premLses,S89' 
 authority of servant material, 889 
 
 LIFE ESTATE, 
 
 interest of husband in wife's, 183 ' 
 
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INDEX. 9G1 
 
 LIFE ^STAT'E— continued. 
 
 husband personally liable for waste of wife's land, 183 
 powers of tenant for life under Settled Land Acts, 1882 and i8qo, 183, 
 668, 669 
 
 LIFE INSURANCE. (See Insurance.) 
 
 LIMITATION OVER, 
 
 difference between, and conditions subsequent, 10 
 
 LIMITATIONS, STATUTE OF, 
 OS betioeen parent and child, 
 
 will not run in favour of parent till child attains majoiity, 529 
 as hetween guardian and ward, 
 
 will not run against ward generally in the matter of accounts, 585, 703 
 
 as regards a testamentary guardian, 600 
 
 ward barred by acquiescence after majority, 600 
 
 but not during minority, 703 
 
 does not run in favour of receivers, 695, 696 
 as regards an infant, 
 
 does not run against, in the matter of account for mesne profits, 806 
 
 barred after six years from majority, 806 
 
 not barred for twelve years after majority where person in possession of 
 the realty is in a fiduciary position, 806 
 
 after six years where person in possession is a stranger, 807 
 as regards a married woman, 
 
 runs against her in contract, 279, 367, 425 
 
 in tort, 273, 334, 425 
 
 runs against claim of creditor, 261, 264, 288, 359 
 
 husband can plead, in respect of debt due from wife, 261 
 
 trustee of, can plead, in respect of a breach of trust, 387 
 as hetween master and servant, 
 
 wages are within, 864 
 
 LIMITATIONS TO BAR DOWER, 
 
 created by a rent charge in favour of wife, 226 
 
 wife's power of distress and entry under, 226 
 
 value of charge by way of jointure, when ascertained, 226 
 
 LOAN, 
 
 hy htisband to wife, 
 
 formerly invalid, 297 
 valid in equity, 297 
 
 andunderM. W. P. Act, 1882, 297 ^ , , , , 
 
 if to wife as separate trader, 5'"«'-c i£ postponed on her bankruptcy on 
 the principle of Bovill's Act, 300 
 
 hy wife to hiishand, 
 
 valid in equity, 297 
 
 valid under M. W. P. Act, 1882, 297 , ; . j. 
 
 postponement of, where made to husband sole trader, for trading purposes- 
 
 in his bankruptcy, 297 
 when he dies insolvent, 298 
 
 husband's creditors must be paid in full, 297 ,. , n 
 
 principle of Bovill's Act and Partnership Act, 1890, ajplieJ, 29b 
 al«o of "reputed ownership " iu the Baukruptey Acts, 297 n 
 principle applicable in the case of a mistress as well as wife, 29X 
 principle applies only to bankruptcy and not ar.an^^etreat to pay a com- 
 
 prfncTple app^lies where his insolvent estate is administered by the Court 
 
 of Chancery, 298 . ,, j o 
 
 if widow executrix her right of retainer allowed, 298 
 claim of wife not postponed, in what case.s, 299 
 wife's equity of exoneration, 299- (See lixoneratwn, equity oj.) 
 husband and wife may grant a bill of .-ale to each other 300 
 if^^fe lend her husband's money and not her own, be alone must su3 for 
 
 it, 422 
 
 Digitized by Microsoft® 
 
962 INDEX. 
 
 LOCI CELEBRATIONIS, LEX, 
 
 formalities of marriage determined by, 87, 105, 457, 461 
 
 exceptions, 105, 107, 460-462 
 
 marriage invalid by, invalid everywhere, 462 
 
 exceptions, 461, 462, 463 
 
 should generally prevail as governing the contract of marriage, 458 
 
 LOCI CONTRACTUS, LEX. (See Loci Celebrationis, Lex.) 
 
 LONDON, CUSTOM OF THE CITY OF, 
 guardianship by, 592 
 
 consent of Court of Orphans to marriage of ward, 592 
 married woman trader a/emc sole as regards contracts by, 279 
 master can sue apprentice on covenant by the, 756, 842 
 
 LUNATICS, 
 
 marriage of, 77 
 marriage settlement of, 1 24 
 Chancery, jurisdiction over, 612 
 derivation of, 612 
 guardians or committees of, 612 
 
 guardian may be appointed to, though not so found by inquisition, where 
 property is small, 613 
 
 MAINTENANCE, 
 
 in case of desertion by father. (See Summary Jurisdiction (Married 
 
 Women) Act, 1895.) 
 no common law liability of father to maintain child, 516 
 but statutory liability, whether child legitimate, 516 
 or illegitimate, 576 
 also a grandchild, 516 
 
 statutory liability of mother, whether child legitimate, 517 
 or illegitimate, 578 
 
 duty of guardian to provide, out of ward's property in his hands, 636 
 power of Divorce Court to make orders as to, 512, 520 
 when innocent party allowed sum for, on dissolution of marriage, 164 
 when adequacy of, allowed by husband cannot be called in question, 311 
 of an in/ant, 
 
 right of, out of his own property, 636, 677 
 during life of parents, 636, 637 
 difference between a trust for, and a power, 647 
 difference between, and advancement, 653. (See Advancement.) 
 when allowed. 
 
 a clear fund capable of being devoted to, 637 
 
 there must be a vested interest in possession, 637 
 
 gift of interest vests legacy, 638, 646 
 
 when representatives of deceased infant entitled to accumulations of 
 
 unapplied interest, 639 
 severance of legacy from residue carries right of, 641, 646 
 allowance of, no relief of parent from statutory liability, 637 
 when not allowed, 
 
 where gift vested, but payment postponed, 638 
 io case of a residuary devise, 638 
 ■exceptions. 
 
 where donor is a parent or in loco parentis, and donee unprovided for, 
 
 639, 640 
 where gift is to a class, some of whom must take, 640 
 it must be absolute to children and survivor, 640 
 none whore gift over is to a stranger, 641 
 unless stranger's consent obtained, 641 
 or intention of donor to allow it can be inferred, 641 
 or where legacy is severed from corpus of the property, 641 
 how interests of third parties entitled over protected, 641 
 where income given with a trust for, 642 
 when donee entitled to receive it, 642 
 
 v/hen parent absolutely entitled to fund, or a trustee for child, 642 
 trustee not liable to account for, unless improperly disbursed by him, 
 
 642 640 
 
 Digitized by Microsoft® 
 
INDEX. m; ; 
 
 MAINTENANCE— co««mwerf. 
 statutory powers of trustees, 
 
 under Lord Cran worth's Act, 643 
 under Conveyancing and Law of Properlti Act, i88i, sect. 41, 743 
 under section, 43, 644 
 
 when the provisions of, apply, 644 
 
 when they do not, 645 
 
 Act retrospective, 646 
 
 income applicable for benefit of infant, 645 
 
 also the accumulations, 678 
 
 when sum laid out without authority of the court allowed, 646 
 
 in cases not within, guardian acts on own responsibility, 645 
 
 control of court over guardians, 646 
 allowance of, to parents, 
 
 not usually made to father, 647 
 
 reasons for rule, 647 
 exceptions. 
 
 where there is proved inability, 648 
 
 question of ability relative, 649 
 
 where fund given by way of bounty, 648 
 
 where income given to parent, such deemed trustee only, 642 
 
 when absolute gift may be presumed, 642 
 
 presumption of gift stronger in the case of father than mother, 642 
 
 whether so under M. W. P. Act, 1882, quoere, 643 
 
 strong presumption of gift in favour of widow when fund given by bus- 
 band, 643 
 
 where trustees of settlement are under an obligatory trust to allow, 647, 
 64S 
 
 where only a discretionary power parent cannot enforce it, 647, 649 
 
 where child has been taken by the court out of the father's custody, 650 
 
 like principles applicable to mother, 650 
 amoitnt allowed, 
 
 not generally to exceed the interest of the fund, 650 
 
 is in the discretion of the court, 637, 650 
 
 court should be applied to for directions, 637 
 
 surroundings and fortune of infant considered, 637, 650 
 
 not only for himself, but for near relatives if totally unprovided for, 650 
 
 even where illegitimate, 651 
 where the court will break in upon the principal. 
 
 real estate, 65 1 
 
 personal estate, 65 1 
 past 
 
 parent not generally allowed for, 637, 652 
 
 exceptions, 652 
 
 nor stranger, 652 
 
 exception, 652 
 cesser of, 
 
 usually at majority, 653 
 
 may be earlier, 653 
 application for order for. 
 
 how made, 656 
 
 when by ordinary summons, 656 
 
 when by originating summons, 656 
 
 order obtained by widow expires on her second marriage, 657 
 
 when obtained by two trustees does not expire at the death of one, 657 
 
 MAJORITY. (See Infancy.) 
 
 attained at twenty-one, 711, 713 
 
 MALICE. (See Character of Servant.) 
 
 MALINS' ACT. 
 
 joint disposition by husband and wife of her reversionary property umlir, 
 
 204, 205, 213 
 effect of, as to marital rights, 205 
 requirements of the Fines and Eecoveries Act must be complied wi.h, 
 
 204, 213. (See Acknowledgments to Bar Wife's Interests.) 
 
 Digitized by Microsoft® 
 
SGi INDEX. 
 
 MARITAL RIGHT, 
 
 existence of, over wife's real property, i8l 
 
 over personal property, 196 
 
 discharge of, by joint assignment under Malius' Act, 20J 
 
 none in equity over her separate property, 183. (See Separate Estate. 
 
 except on her death over her undisposed-of chattels, 231-234. (See 
 
 Administration ) 
 abolition of, by M. W. P. Act, 1882, 357. (See M. W. P. Act, 1882 ; Separate 
 
 Estate.) 
 
 MARRIAGE, 
 
 definitions of, 2, 3 
 
 a status, or institution, 2, 5 
 
 permanent character of, 2 
 
 social eilc cts of, 4 
 
 Christian basis of, la England, 4 
 
 involving incest or polygamy not recognized, 4 105 
 
 sewper prcssumitur pro matrimonio, 5 
 
 mere irregularity in form of, not fatal to validity of, 6 
 
 favourable attitude of the law towards, 7 
 
 brocage contracts invalid, 11, 493 
 
 conditions in restraint of, generally invalid, 7-1 !• (See Condilions.} 
 
 consensus of parties essential element of the contract of, 13 
 
 regular and irregular, distinction between, 13, 14, 16 
 
 void and voidable, distinction between, 62 
 
 indissoluble in England except by Act of Parliament before Divorce Act, 
 
 1857, 446 
 ly sponsalia per oerha de prcesenti, 13, 31-33. (See Sponsaba per verba de 
 
 prcesenti.) 
 sponsalia per verba de futiiro cum copuld, 13, 33-35. (See Sponsalia per 
 
 verba de futuro cum copuld, ) 
 by habit and repute, 35 
 Gretna Green, 30. (See Gretna Green.) 
 law of England not foreign, 14 
 
 difference between English and continental law as to eifect of a con- 
 sensual, 16 
 impediments to, 62-85. (See Impediments to Marra'ffe.) 
 essential requirements of a valid, 86-1 11. (See Mequirements of a Valid 
 
 Marriage, Essential.) 
 duly ordained minister requisite at, of members of Church of England, 
 
 97, 98. (See Minister.) 
 canonical hours, 8 a.m. to 3 p.m., 98 
 in a registered building, loi 
 abroad. (See Foreign Marriages.) 
 
 at what age parties may contract, 73-75, 87. (See Konage.) 
 whose consent to infant's, necessary, 87-go. (See Consent of Proper 
 
 Parties.) 
 absence of consent of proper parties no longer ground for nullity, 21, 88, 
 
 89 
 on publication of banns 
 in England, 91-93 
 in Ireland, 47, 49, 50 
 in Scotland, 26, 27 
 by spe- iaJ- licence 
 
 in England, 19, 95 
 in Ireland, 47, 49, 51, 53 
 by the Ordinary's or common licence 
 in England, 95-97 
 in Ireland, 47, 49, 51, 57 
 on certificate of registrar 
 
 in England, 22, 97, 99, loo 
 in Ireland, 47 
 in Scotland, 25, 27, 28 
 on licence of registrar 
 in England, 95-97 
 
 non-Church of England, to bs celebrated in presence of registrar, 102 
 in Ireland, 54 
 
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INDEX. 96a 
 
 MARRlkGE— continued. 
 
 action for breach of promise of, 112- 119. (See Breach of Promise af 
 
 Marriage, action for.) 
 infant's promise of, within Infants' Relief Act, 1874, 116, 736, 744, 
 
 763 
 infant mar sue adult on promise of, u6 
 promise of, not within Statute of Frauds, 116 
 l)romise and agreement in consideration of, within Statute of Frauds, 
 
 143 
 not part performance of a parol contract for purposes of specific perform- 
 ance, 144 
 operates generally as an extinguishment of prior obligations between 
 
 husband and wife, 242 
 effect of M. W. P. Act, 1882, on such obligations, 242, 243 
 revokes wiUof wife, 241, 251 
 revokes will of husband, 242 
 
 ■does not per se put an end to woman's contract of service, 829 
 formerly a conveyance of the wife's property, 122, 179 
 a valuable consideration, 126, 147 
 consideration of, will not support all settlements, 154 
 issue of, take as purchasers under a settlement, 147 
 of woman not per se a severance of joint tenancy held by her, i88 
 duties of guardian as to ward's, 635. (See Guardian of the Person. ) 
 of ward of court, 635, 786-791. (See Ward of Court.) 
 of male ward, testamentary guardianship not terminated by, 598, 623 
 of female ward, whether testamentary guardianship terminated by, 598, 
 
 624 
 of female testamentary guardian does not put an end to her office, 
 
 625 
 of female servant does not terminate contract of service, 829 
 "English," is one celebrated in England where the husband is domiciled, 
 
 465, 466 
 jactitation of, 448. (See Jactitation of Marriage.) 
 dissolution of. (See Divorce : Judicial Separation.) 
 international aspect of 
 
 domicil an important factor, 454. (See Domicil.) 
 lex loci celebrationis governs the formalities of, 87, 105, 457, 461 
 lex domicilii governs the capacity of the parties, 87, 106, 458, 461, 462 
 where the wife is a domiciled English subject, quaere, 458 
 lex loci celebrationis ought generally to prevail, 458-460 
 .exceptions to and qualifications of rule. 
 
 where marriage incestuous by Christian law, 460 
 
 where citizens of a state seek to avoid the statutory disqualifications of 
 
 their domicil, 460 
 penal prohibitions of the lex domicilii should not have extra-territorial 
 
 force, 460 
 to what marriages the incapacity of the lex domicilii extends, 462 
 invalid by the lex loci celebrationis invalid everywhere, 462 
 exceptions, 461, 462, 463 
 
 MAKBIAGE ACT, THE, 1823 (4 Geo. iv. c. 76), . . xr ,•, ,, ■ 
 
 provisions and effect of, 21, 22. (See Reqiarements of a Valid Marriage, 
 
 Essential.) 
 nullity no longer the penalty for not obtaining consent of proper parties, 
 
 21 
 does not affect marriages of Jews and Quakers, 22 
 
 MAEEIAGE ACT, THE. 1836, ,„ „ . , . ir r^ „, ■ 
 
 its chief provisions, 22, 23. (See Requirements of a Valid Marriage, 
 
 Essential. ) 
 introduction of the civil element into marriage, 22 
 does not affect marriages of Jews and Quakers, 23 
 
 MAEBIAGE ACT, THE, 1856, 
 
 effect of, 23. (See Sequirements of a Valid Marriage, Essential.) 
 
 Digitized by Microsoft® 
 
'.toe INDEX. 
 
 MARRIAGE ARTICLES. 
 
 must be in writing, 126, 144 
 
 are within the Statute of Frauds, 144 
 
 signature of person to be bound necessary, 144 
 
 written agreement after marriage in pursuance of a parol before, may be 
 
 enforced, 144 
 need not be contained in one document, 126 
 need not be formal if complete, 126 
 
 the promise must be absolute and not conditional, 126, 145 
 difference between, and a iinal settlement, 127 
 post-nuptial settlement founded on, valid, if conforming to, 129 
 Intention of parties ought to be embodied in formal settlement, 142 
 speciiic performance of, 145 
 in toto or not at all, 145 
 who may enforce, 145 
 construction of 
 
 executory trusts carried out according to the presumed intention of the 
 
 parties, 141 
 executed trusts according to their strict legal limitations, 141 
 rectification of. (See Rectification.) 
 
 on ground of fraud, 152. (See Fraud.) 
 
 on ground of mistake, 151. (See Mistake.) 
 
 settlement in pursuance of, 150 
 
 when variance between, and final settlement, 150 
 
 when settlement contains no reference to, but was intended to be based 
 
 on, 150 
 
 MARRIAGE BROCAGE CONTRACTS 
 invalidity of, 11, 493 
 
 MARRIAGE LAWS OF ENGLAND, HISTORY OF. 
 
 clandestine marriages discountenanced by the Church, 12 
 intervention of priest in marriage not necessary by canon law, 13 
 intervention of priest necessary by English law, 1 5 
 intervention of priest not now necessary except in Church of England 
 
 marriages, 22 
 effect of marriage by mere consent, 16 
 state of the marriage law before Lord Hardwicke's Act, 18 
 effect of Lord Hardwicke's Act, 19. (See Hardwicke's Act, Lord.) 
 effect of Marriage Act, 4 Geo. IV. c. 76, 21. (See Marriaqe Act, 4 Geo. 
 
 IV. c. 76.) 
 effect of Marriage Act, 6 & 7 Wm. IV. u. 85, 22. (See Marriage Act, 
 
 1836.) 
 effect of 19 & 20 Vict. c. 119, 23. (See Heqtdrements of a Valid Marriage 
 
 Essential) 
 
 MARRIAGE OF WARD OF COURT. (See Ward of Co^lrt, Marriage of .) 
 
 MARRIAGE SETTLEMENTS. {See Settlement.) 
 
 of ward of Court. (See Ward of Court, /Settlements of.) 
 of infants. (See Settlements of Infants, Marriage.) 
 
 -MARRIAGE OFFICER. (See Foreign Marriages.) 
 
 MARRIED WOMAN. {See Wife.) 
 former incapacities of 
 
 to contract. (See Contract.) 
 to hold and dispose of property, 249 
 capacities of 
 
 when might contract. (See Agent : Contract.) 
 In equity 
 
 to contract with husband and third persons. (See Contract : Loan.) 
 to hold and dispose of property, 249. (See Separate Estate.) 
 to mortgage, 193. (See Exoneration, Equity of: Eedemption, Equity of.) 
 to lease, 194-196. (See Lease.) 
 
 negotiable instruments by. (See Bill of Exchange : Promissory Note.) 
 contract of hiring and service by, 827-829. (See Hiring and Service, 
 Contract of.) 
 
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INDEX. 967 
 
 JIAREIED VfOm-EH— continued. 
 
 contractual power increased by M. W. P. Act, 1882, 282. (See Contract. ) 
 
 to be a partner, 323. (See Partner.) 
 
 to be a shareholder, 262, 265, 324. (See Shareholder. ) 
 
 to be a trastee, 325-327. (See Trustee. ) 
 
 to be executrix and administratrix, 327-330. (See Executrix and Ad- 
 
 ministratrix.) 
 to sue and be sued alone, 172, 330-334, 422, 426, 429-433. (See Action.) 
 to make a will. (See TTi'M.) 
 liabilities of. (See Wife. ) 
 
 personal and proprietary. (See Liahilitii .- Separate Estate.) 
 
 for ante-nuptial contracts and debts. (See Contract : Delta.) 
 
 to be made bankrupt when carrying on a separate trade. (See Bankrupt : 
 
 Trade.) 
 remedies of, in respect of her property, 400-403. (See Remedies of 
 
 Married Woman.) 
 relation of, to the criminal law, 173, 174. (See Criminal Law.) 
 relation of, to the franchise, 175. (See Franchise.) 
 receipt of, though an infant, when good discharge, 677 
 right of, when divorced to retain married name, 452 
 slander imputing adultery to, actionable without proof of special 
 
 damage, 173 
 
 MARRIED WOMEN'S PROPERTY ACT, 1870, 
 separate property enlarged by, 202, 356 
 but not contractual power of married woman, 357 
 did not enable her to dispose of trust estates, 250 
 her powers under, 186. 331, 332, 334, 365, 370 
 her obligations under, 256, 257, 356 
 
 rendered liable to support husband and family, 256, 257, 356 
 might maintain action at law in her own name in respect of statutory 
 
 separate property, 355 
 legal fee acquired under, disposable with the legal formalities, 365 
 husband's liability for her ante-nuptial contracts and debts and torts 
 
 removed, 259 
 repealed by M. W. P. Act, 1882, 356, 416 
 existing rights and liabilities under, preserved, 357, 417 
 
 MARRIED WOMEN'S PROPERTY ACT, 1874 
 
 effect of, on husband's liability for wife's ante-nuptial contracts and 
 
 debts, 259, 260 
 his liability for her ante-nuptial contracts, debts, and torts restored in 
 
 part, 356 
 repealed by M. W. P. Act, 1882, 356, 416 
 existing rights and liabilities under, preserved, 357, 417 
 
 MARRIED WOMEN'S PROPERTY ACT, 1882. (409-417.) 
 general scope and effect of, 356-362 
 
 effect of, limited to question of property and coverture, 361 
 wife's matrimonial status not affected, 361 
 on her ante-nuptial acts and obligations, 242, 243 
 difference in its effect and that of judicial separation, 360 
 her power of disposition under 186, 192, 249, 250, 357, 363-372. (See 
 
 Separate Estate.) 
 her contractual powers under, 282 et seq., 352. (See Contract. ) 
 what "contract " under, includes, 283, 329, 417 
 her liability for ante-nuptial and post-nuptial contracts, debts, torts, 
 
 under. {See Contract : JJeht : Separate Estate : Tort.) 
 husband's right to administer to her property, 233. (See Administration.) 
 commencement of, 417 
 in part retrospective, 357 
 Reservation of rights and liabilities under M. W. P. Acts, 1870 and 1874, 
 
 357, 417 
 
 MARRIED WOMEN'S PROPERTY ACT, 1893. (417, 418 ) 
 contract of married woman under. (See Contract.) 
 existence of free separate property not necessary to validity of, 289, 290 
 336, 363. 383, 397 
 
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968 INDEX. 
 
 MARRIKD WOMEN'S PKOPERTY ACT, ii()^— continued. 
 
 future property liable for, though none possessed by her at date of 
 
 contract, 289, 290, 336, 384, 393, 397 
 her contract enforceable against her property when discovert, 363, 393 
 restraint upon anticipation preserved by, 336, 363, 380, 392. (See 
 Restraint upon Anticipation.) 
 exception. 
 
 in an action by herself or next friend, If condemned in costs, such are 
 payable out of property subject to the restraint, 333, 363, 381, 392, 426 
 order of court enforceable by appointment of receiver, 363 
 provision does not apply to costs of an appeal by her, 333, 426 
 but does to a counterclaim, 333, 426 
 execution of power by will renders appointed property liable for debts, 
 
 though when incurred no free separate property was in existence, 396 
 effect of, on will of married woman, 251, 363, 371. (See TfV??. ) 
 
 MASTEK, 
 
 definition of, 821 
 
 who may be, 827-830 
 
 death of, terminates contract of service, 835 
 rights of, 
 
 as regards the apprentice, 787, 846. (See Apprentice.) 
 as regards the domestic servant, 
 
 none to chastise, 860 
 
 to earnings of, 861 
 
 to action for enticing and harbouring, 861. (See Enticement.) 
 
 to action for seduction. (See Seduction.) 
 
 to action for injuries inflicted on, 862 
 
 none to search boxes of servant, 898 
 
 to use suflScient force to put out servant refusing to go, 837 
 duties of 
 
 to receive servant into employ, 862 
 
 to protect him, 862 
 
 to pay agreed wages, 840, 847, 864. (See Wages.) 
 
 to supply food, 866 
 
 how enforced, 867 
 
 when indictable for manslaughter, 867 
 
 none to provide medicine for sick, 868 
 
 when fixed with liability, 868 
 
 to indemnify, in respect of orders, 868 
 
 orders must be lawful, 868 
 
 to indemnify, in respect of injuries inflicted by fellow-servant, 869 
 
 principle of immunity and liability, 869. (See Common Employment.) 
 
 none to give, a character, 851. (See Character of Servant.) 
 
 when punishable for giving a false character, 858 
 liahility of, for contracts of servant, 
 
 principle of, 875 
 
 by adoption, 876 
 
 by express authority,. 876 
 
 by implied authority, 876 
 
 implied, must be limited to particular business, 877 
 
 authority must not be exceeded, 878 
 
 not limited by private arrangement, 878 
 
 death of, revokes the authority, 880 
 non-liahility 
 
 where no express or implied authority, 879 
 
 mere user of goods obtained by servant will not make, liable, 880 
 
 when authority terminated with notice, 880 
 liahility of, for torts of servant 
 
 principle of, 88 1 
 
 general, 883 
 
 servant must generally be under his immediate control, 832 
 
 for fraud of, 883. (See Fraud. ) 
 
 when acting on his behalf, and with his authority, 884 
 
 when acts of, adopted by him, 885 
 
 drunkenness of servant equivalent to negligence of, 884 
 
 limits of, 884, 885, 886 
 
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.INDEX. 969 
 
 MA.STER—coHtinued. 
 non-liability 
 
 when for dishonesty or fraud of servant, 886 
 
 for wilful acts, 885, 888 
 
 when act independent of authority or employment, 886 
 
 when tort committed before re-entry upon his duties, 887 
 
 mere doing of some service does not remove his, 888 
 criminal liability 
 
 when, SSS 
 
 when not, 888 
 
 quasi, under the Licensing Acts, 889. (See Licensing Acts.) 
 
 negligence of, generally requisite, 889 
 exceptions. 
 
 under sale of Foods and Drugs Act, 1875, 889 
 
 under the Pharmacy Act, 1868, 889 
 
 MASTER AKD SERVANT, 
 
 relation of, a domestic relation, 822 
 
 MEDICAL ATTENDANCE, 
 liability foi; 
 
 of husband for wife's, 315 
 
 of parent for child's, 517, 518 
 
 of master for apprentice's, 847 
 
 none to pay for, on domestic servant, except on a contract, 868 
 
 when master may recover expenses of, on servant, 862 
 
 MENIAL, 
 
 meaning of term, 823 n 
 
 as applied to service is of wider import than domestic, 824 
 
 MESNE PROFITS, 
 
 infant to account for, 806 
 
 MINES AND MINERALS, 
 
 powers of a tenant in fee or in tail as to, 684 
 
 tenant for life impeachable for waste, may work open, but not new, 
 
 684 
 of what, widow dowable, 220 
 
 MINISTER, 
 
 duly oridained, 
 
 presence of, requisite at Church of England marriages, 97, 98 
 cannot marry himself, 97 
 
 whether marriage celebrated by person not in orders valid, 97 
 where parties innocent of fraud, question still open, 98 
 where parties cognizant of fraud, marriage null and void, 98 
 intervention of, not now compulsory, 99 
 
 MISTAKE, ^ . 
 
 rectification of marriage settlements on ground ot, 151 
 
 not confined to executory contracts, 151 
 
 must be common to both parties, 151 
 
 except where one is in a fiduciary relation to the other, 151 
 
 on whose behalf, 152 
 
 parol evidence admitted to prove, 152 
 
 MIXED MARRIAGES, 
 in Ireland 
 
 what are, 55, 56 j. , , i- ^ 
 
 former penalties on Roman Catholic pnests for celebrating, 5& 
 disabilities affecting Roman Catholic and Protestant clergy removed, 
 
 56 
 statutory requirements in, 56 
 how to be celebrated, 57 
 when invalid, 57 
 celebrated abroad, no 
 
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ft70 INDEX. 
 
 MOLESTATION, 
 
 in separation deed, what is, 438 
 what is not, 438 
 
 MOKMON MARRIAGE, 
 
 not recognized as valid by English Courts, 4, 105, 460 
 
 MOBTGAGE. 
 hy an infant, 
 
 he cannot validly, his real or personal property, 739 
 when bound by fraud in respect of his, 740 
 to secure advances for necessaries voidable, 740 
 till ratification on majority, 740 
 liable to pay ofiE his ancestor's, 739 
 must keep down interest on, 680. (See Incumbrances.) 
 guardian has no pswer to make, of ward's land, 739 
 Court of Chancery has no inherent power to make, 739 
 has statutory power for payment of debts, 739 
 or for repairs, 680. (See Bepairs.) 
 power of Court under Trustee Acts, 729, 731 
 foreclosure of. (^ee Day to show Cause: Foreclosure.) 
 
 by husband of wife's lands, 181 
 61/ a married woman 
 
 where nou-separate property, concurrence of husband formerly necessary 
 
 to, 193 
 when compliance with Fines and Recoveries Act, still necessary, 193 
 as a, feme sole under M. W. P. Act, 1882, 193 
 her, formerly deemed as security only for husband's debts, 194. (See 
 
 Exoneration, equity of. ) 
 her equity of redemption, 193, 194. (See Redemption, equity of.) 
 a widow executing, to release dower rights, on reconveyance is entitled to 
 
 dower out of the mortgaged premises, 231 
 
 JIOETMAIN ACT, 1803, 
 
 will of wife's lands affected by, requires husband's consent, 370 
 
 MOTHER, 
 
 liability of, to support family. 
 none at common law, 256 
 under M. W. P. Act, 1870, 176, 256, 356 
 under M. W. P. Act, 1882, 176, 257, 359 
 may be ordered by Divorce Court to provide for custody, education, and 
 
 maintenance of child, 164 
 cannot give evidence to bastardize her issue, 477, 478 
 may, of the paternity of a child after proof of non-access of husband, 
 
 567 
 or that she and the father were never married, 567 
 her right to the custody of legitimate child. (See Custody and Control of 
 Children.) 
 at common law none, during life of father, 493 
 utaiuiory 
 
 under the Divorce Acts, 494, 512-515 
 
 under Infants' Custody Act, 1839, 494, 507. (See Infants' Custody Act, 
 
 1839-) 
 under Infants' Custody Act, 1873, 507, 508. (See Infants' Custody Act, 
 
 1873-) 
 under Guardianship of Infants Act, 1886. (See Guardianship of Infants 
 
 Act, 1886.) 
 agreement for, in separation deed, formerly invalid, 445 
 now valid if for child's benefit, 445, 509 
 right of access to child, 494, 507, 508, 511 , 512, 514 
 removal of, as guardian, 496 
 supersession of, 494, 504, 509, 615 
 on second marriage, 494, 606 
 reappointment of, if not to child's harm, 494, 606 
 forfeiture of, 495, 496, 615 
 control over marriage of child, 493 
 
 Digitized by Microsoft® 
 
INDEX. 971 
 
 JI OTHER — continxied. 
 
 consent of, to marriage of child, 88, 493 
 
 when allowed to take child, a ward of Court, out of the jurisdiction, 506, 
 797 
 
 right to change domlcil of fatherless child, 486. (See Domicil.) 
 
 enforcement of . (See Saieas Corpus: Chancery, Court of .) 
 duties of 
 
 support. {See Parents.) 
 
 protection, 515 
 
 maintenance, 652. (See Maintenance.) 
 
 whether sums by way of advancement allowed to, since M. W. P. Act, 
 1882, 652 
 
 education, 520-527. (See Educatio>i.) 
 rights and obligations of. In respect of child' s property, 
 
 as to real estate, 530 
 
 as to personal estate, 530-534. (See Parents.) 
 
 earnings of child, 532 
 
 insuring life of child, 534. (See Insurance.) 
 
 on death of child intestate, 533. (See Distributions, iHtatute of.) 
 
 gifts and transactions between child and, 535-54^. (See Gifts.) 
 in the case of an illegitimate child, 
 
 relationship between, and, recognized, 568, 573, 588 
 
 liability of, to support, 578. (See Bastardy : Father.) 
 
 primary right of custody of, 572 
 
 enforceable by habeas corpus, 573, 588 
 
 welfare of child considered, 573, 588 
 
 may maintain action for decoying, 574 
 
 guardianship of, 588 
 
 cannot appoint testamentary guardian to, 89, 572, 574 
 
 may be appointed guardian to, 574 
 
 her domicU, that of the child, 581 
 
 her settlement that of the child till sixteen, 579 
 
 NAMES, 
 
 necessity for true, in publication of hanne, 91. (See Banns.) 
 false (but not fraudulent) in licence do not invalidate marriage, 96 
 bastard may acquire, by repute, 92, 569 
 right of divorced woman to retain married, 452 
 
 NATIONAL DEBT ACT, 1892, 
 
 provisions of, as to infant stockholder, 807 
 
 NECESSARIES, 
 
 as between husband and wife, 
 
 what are : things that cannot well be dispensed with, 314 
 
 food, drink, lodgings, 315 
 
 legal expenses, under certain circumstances, 315 
 
 suits in matrimonial causes, 315 
 
 what are not, 316 
 liability of husband for wife's debts for, 
 
 capacity of wife to bind husband as agent, 302 
 
 implied authority of wife may be revoked by husband's lunacy or death, 
 
 where contract made by wife while living with husband, 
 
 presumption of authority to pledge his credit arises from cohabitation, 
 not marriage, 304, 306 ,, j , i , 
 
 presumption holds good in case of a mistress or other delegate, 304 
 
 an implication of fact not a conclusion of law, 304 
 
 presumption rebuttable, 305 
 
 Jolly V. Sees, 305 
 
 Debenham v. Melion, 305-507 _ ,-^ o 
 
 notice by husband to tradesman not to give credit, 30S 
 
 husband may limit his wife's authority by private arrangement, 309 
 
 liabiUty of husband by estoppel, 309 
 
 onus of disproof of liability for, on husband 307 
 tchere contra^ made hy wife living apart from husband, 
 
 separation de facto a revocation of authority, 310 
 
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972 INDEX. 
 
 NECESSARIES— conimM«A 
 
 authority of wife to pledge husband's credit arises by way of implication, 
 
 310 
 husband not liable when wife living apart in adultery, 311 
 where he makes and pays her a sufficient allowance, 311 
 sufficiency or insufficiency of the allowance not for the jury, 311 
 where he pays her agreed alimony on divorce or judicial separation, 312 
 after divorce or judicial separation, 312 
 
 husband liable where he does not pay wife agreed allowance, 312 
 where he has not agreed to pay any particular allowance, 312 
 sufficiency or insufficiency of the allowance for the jury, 313 
 where he turns her out of doors, 3 1 3 
 authority of necessity, 313 
 husband's liability in other cases, 313 
 
 the authority to pledge credit is limited on separation to a wife, 313 
 has married woman with separate property living apart from her 
 
 husband's authority to pledge his credit, quosre, 314 
 authority of wife to pledge husband's credit when living apart not taken 
 
 away by M. W. P. Acts, 1882 and 1893, 316 
 as between parent and child, 
 
 liability ior, primd facie on father, 518 
 
 mother with separate property now liable, 519 
 
 apart from the Poor Law, liability arises only on contract, 519 
 
 the moral obligation on parent raises no inference of a promise to pay 
 
 for child's, 518 
 any implied contract negatived by child having an allowance, 519 
 mere knowledge of parent that child is maintained by a stranger does 
 
 not render him liable, 519 
 except perhaps where child deserted and destitute, 519 
 liability of father where mother lives apart, 
 
 if voluntarily, whether mother agent of father or not, a question of fact, 
 
 520 
 if voluntarily and against his will, father not liable, 519 
 if because of his misconduct and by order of court giving her child's 
 
 custody, father liable, 520 
 if without order of court, her agency a question of fact, 520 
 in the case of an infant, 
 
 not liable when living with parent or guardian, 751 
 
 ■what are, 748 
 
 utility a partial test, 748 
 
 articles not primd facie, may become so, 749 
 
 what are not, 749 
 
 where infant already supplied with, tradesman trusts infant at his peril, 
 
 750. (See Tradesman.) 
 question of, not confined merely to infanfs benefit, 745 
 is one of mixed law and fact, 746 
 the province of the judge, 746 
 the province of the jury, 747 
 
 he may bind himself by a contract for, 735, 745, 746 
 but not by a bond with a penalty, 725, 752 
 or by deed binding his reversionary interest in realty, 752 
 or by account stated, 726, 735, 736 
 mortgage of land to secure advances for, voidable, 740 
 when money lent for the purchase of, recoverable, 752 
 advances to, in respect of, valid, 752 
 
 NECESSITY, 
 
 mandate, or authority of, when wife carries, to pledge husband's credit, 
 306, 313 
 
 NEGLIGENCE, 
 
 when master liable to servant for his own, 873, 874. (See Master; 
 
 Servant. ) 
 when master liable for servants, 881-889 
 contributorrj, 
 
 whether infant of tender years can be guilty of, 801-803 
 infant identified with adult in whose charge he was, 803 
 when servant disentitled to recover against master through his own, 872 
 
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INDEX. 973 
 
 NEGOTIABLE INSTRUMENT, 
 a chose in action, 198 
 liability of married' woman on her. (Sae Bill of Exchange: Promissorir 
 
 2\ote.) "^ 
 
 husband cannot under M. W. P. Act, 1882, sue on ante-nuptial of wife, 
 
 unless he has purchased a.n interest in it, 422 
 infant not liable on, even for necessaries, 736, 752 
 
 NEXT FRIEND, 
 
 formerly responsible for infant's suit in equity, 809 
 
 how appointed in lieu of the common \a.\v procheia amy, 809 
 
 in what proceedings required, 809 
 
 where infant en ventre sa mire, 809 
 
 action is at suit of the infant, 809 
 
 generally cannot sue in for md pauperis, 810 
 
 may bind infant in matters of procedure without order of court, 810 
 
 cannot bind him by admissions, 810 
 
 is not a party to the suit so as to make discovery, 81 1 
 
 who may be, 810 
 
 who may not be, 810 
 
 need not give security for costs, 811 
 
 authority must be in writing, 811, 813 
 
 inquiry as to fitness of, and whether suit beneficial, 81 1, 812 
 
 cannot apply for inquiry whether suit beneficial, 812 
 
 when proceedings by, stayed or dismissed, 812 
 
 inquiry where there is more than one suit, 812 
 
 powers of, 8ii 
 
 removal of, 812 
 
 on what grounds, 813 
 
 and by whom, 813 
 
 on retiring, substitute must satisfy court as to fitness, 813 
 
 when affidavit of fitness of substitute not required, 813 
 
 election of infant attaining majority pendente lite to go on with orrepudiate 
 
 suit, 814 
 infant carrying it on liable for costs, 814 
 repudiation of suit dates back to the commencement, 814 
 on dismissal of suit, defendant entitled to costs 814 
 liable for costs to defendant, 814 
 costs of , primd facie recoverable against infant, 814 
 married woman cannot act as, 424 
 in the case of a married woman, 
 
 formerly always required where she was not suing with husband, 423 
 
 practice under Judicature Act, enabling her to dispense with, 423 
 
 under M. W. P. Act, 1882, she may sue without, 423 
 
 except when an infant, 423 
 
 whtn, if suing by, she must give security for costs, 424 
 
 NEXT-OF-KIN, 
 
 when administration granted to wife's, in preference to husban I's 232, 
 
 (See Administration.) 
 a, widow as such, not, to husband under Statute cf Distributions, 238 
 
 NON-ACCESS. (See Legitimacy.) 
 
 rresumption of, of husband and wife dates from order of judicial separa- 
 tion by Divorce Court or Court of Summary Jurisdiction, 353 
 
 evihnce of, o ^^ 
 
 permissible to rebut presumption of legitimacy, 477, 4b.2, 566 
 
 must be strong, 477 , ,, . „ ^^ 
 
 cannot be given by husband or wife to bastarjiz; issun, 477, 478, 566 
 
 how admissible in pedigree cases, 478, 567 
 
 in matrimonial suits, 478, 567 
 
 must be sought for aliunde, 47S, 567 
 
 natural or physical impossibility of access, 478, 482, 483, 566 
 
 through absence of husband, 479, 483, 566 
 
 husband need not be absent extra rjuatuor maria, 479 
 
 moral impossibiffty, 479, 483. 566 
 
 how supported, 480 
 
 Digitized by Microsoft® 
 
<)n INDEX. 
 
 NON-ACCESS— coretjrmaci. 
 
 Banbury Peerage Case, 481-483 
 
 after proof of access no evidence admissible except to contradict it, 482 
 after proof of, mother may prove paternity of child, 567 
 of father and mother that they never were married admissible, 567 
 cannot be given by parents in a petition under Legitimacy Declara- 
 tion Act, 489 
 
 NONAGE. 
 
 civil disability, 73 
 
 age of matrimonial consent, 73, 74 
 
 effect of marriage within, 74 
 
 marriage of infants under seven void, 74 
 
 marriage of infants between seven and fourteen voidable, 75 
 
 marriage of infant males over fourteen and infant females over twelve, 
 
 with or without consent of parents, &c., valid, 75 
 Criminal Law Amendment Act, 1885, has not altered age of matrimonial 
 
 consent, 75 
 age of matrimonial consent in various European countries, 74 n 
 
 NONCONFORMISTS, 
 
 marriages of, 99-102. (See Sequirements of a Valid Marriage, Tlie 
 Essentiah ) 
 
 NOTICE 
 
 of marriage, 94, 100. (See Banns ; Certificate; Licence.) 
 under Foreign Marriage Act, 109. (See Foreign Marriage Act.) 
 
 NULLITY OF MAERIAGE. (See Impediments to Marriage.) 
 
 no longer the penalty for obtaining a marriage without the consent of 
 proper parties, 21 
 
 OATH, 
 
 what, required for Ordinary's licence, 96 
 
 what, required for marriage officer's certificate in the case of foreign 
 
 marriages, 109 
 of young children, (See Evidence.) 
 
 OFFICE, 
 
 what, infant may hold, 713 
 what, he may not hold, 713 
 
 ORDER AND DISPOSITION, 
 
 gift of property by husband to wife remaining in his, bad as against 
 creditors, 295 
 
 ORPHANS, COURT OF, 
 
 guardianship exercised by, in the City of London, 592 
 consent of, necessary to marriage of ward, 592 
 
 PARAPHERNALIA. 
 
 what is included in, 406 
 
 right of wife to, purely personal, 406 
 
 question of, can only arise on death of husband, 406 
 
 distinction between separate estate and, 406 
 
 widow cannot claim heirlooms as, 406 
 
 husband may dispose of wife's inter vivos but not by will, 406 
 
 are liable to claims of husband's creditors, 407 
 
 when assets of husband marshalled in favour of wife, 407 
 
 widow's claim superior to that of a legatee, 408 
 
 wife's own jewels, &o., settled to separate use on marriage liable to be 
 
 taken in execution for her debts, 407 n 
 jewels and personal ornaments given by husband to wife primS facie her 
 separate propoity and not, 408 
 
 PAREN'TAL RIGHTS, TRANS.kCTIONS IN FRAUD OF. (See Calchinn 
 Bargarvn.) 
 
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INDEX. 975 
 
 TARENTS, (See i'fiMer; Mother; Control and Oastodi/ of Ghildren ; Guardian.) 
 relation of, and child, 474, 475 
 natural guardians of child, 492 
 cannot bastardize their issue, 477, 478, 566 
 fraud on powers by, 545-547. (See Powei- of Appointment.) 
 gifts and transactions between, and child, 535-548. (See Gifts.) 
 obligations of, 
 
 protection, 515 
 
 education, 520-527. (See Education.) 
 maintenance. (See Maintenance) 
 of father. 
 
 none at common law, 255, 516 
 etatutory, under the Poor Laws, 255, 516 
 only if of sufficient ability, 516 
 cesser of, when child reaches sixteen, 517 
 unless unable to support itself, 518 
 of mother. 
 
 none at common law, 256, 517 
 statutory under the Poor Laws, 256, 517 
 only if of sufficient ability, 256, 517 
 under M. W. P. Acts, 1870 and 1882, 517, 518 
 cesser of, when child reaches sixteen, 257, 518 
 unless unable to support itself, 518 
 
 none to leave any property real or personal to child, 553, 554 
 fiijhts of, 
 
 to custody and control of child. (See Oustody and Control of 
 
 Children.) 
 to be maintained by child, 551, 552. (See Children.) 
 to maintain action for tort done to child. 
 loss of services gist of action, 557 
 
 enticement and harbouring of child, 558. (See Enticement and Harlourinrj.) 
 seduction of daughter, 559-562. (See Seduction.) 
 under Lord Campbell's Act, 562-564. (See Campbell's Act, Lord.) 
 to insure child's life, 534. (See Insurance.) 
 ns to real property of child. 
 
 father who enters is guardian and trustee, 529 
 acquires no legal or beneficial interest in, 529 
 is liable to an action for account as a bailiff, 529, 589 
 Statute of Limitations does not run in his favour, 529 
 mother who enters is in like position as father, 530 
 as to personal properti/. 
 
 parent usually appointed guardian, 530 
 as such has no interest in, 530 
 
 not the proper person to receive legacies to child, 530 
 cannot give a valid receipt for legacy, 530 
 unless marked out to receive it, 530 
 when deemed to be a trustee, 530 
 to earnings of child, 531, 532. (See Earnings.) 
 c/i the death of the child unmarried and intestate. 
 of the father, 533 „..,., 
 
 of the mother, 533. (See Statute of Distributions. ) 
 
 liabilities of, 
 
 to support child till majority, when, 164, 501 
 
 for necessaries supplied to child, 518-520. (See Necessaries.) 
 
 difference between, and those of child in respect of support, 552 
 to be sued in tort by child, 
 
 as regards dealings with his property, 554 
 
 for personal violence, gucere, 555 
 
 when child of full age, 555 
 for tort of child, 
 
 if authorized or ratified, 564 „ , .,^, , . » ,--. 
 
 or where committed within scope of child's employment as agent, 564 
 
 but not otherwise, 564 
 of illegitimate child. (See Illegitimate Children. ) 
 
 PARISH. (See Poor Law.) 
 
 PARISH APPRENTICE, 844- (See Apprentic.) 
 
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976 INDEX, 
 
 i'arol demurrer, 
 
 privilege of, confined to infant heirs, 729. ^(See Day to sliow cause.) 
 abolished, 730 
 
 PARTITION ACTS, 
 
 sale of infant's lands under, 666-668, 731 
 sale of land under, a conversion, 665, 
 
 PARTNER. 
 
 a firm may take an apprentice, 843 
 
 effect of dissolution of partnership on hiring of domestic servant, 835 
 
 a firm may not be appointed as testamentary guardians, 599 
 married woman as 
 
 incapacity at common law, 323 
 
 capacity in equity, 323 
 
 capacity under M. W. P. Act, 1882, 323 
 
 may be, with husband as well a third person, 323, 324. (See Loan.) 
 
 if a, presumed to have separate property, 320, 324 
 infant as 
 
 capacity to be, at common law, 713, 740, 765 
 
 contract of partnership not within Infants' Relief Act, 1874, 740, 
 
 76s 
 not liable for debts of co-partner, 740 
 or his torts, 741 
 
 judgment against firm does not bind him, 740 
 in bankruptcy of firm receiving order must be against firm other than 
 
 the, 740 
 cannot take profits and not share losses, 741 
 his fraud will bind him, 740 
 doctrine of " holding out " applicable to, 740, 765 
 may elect to continue, on reaching majority, 740 
 , speedy and unequivocal expression of intention to retire on majority 
 
 necessary, 765 
 unless he disaffirm within reasonable time after majority, liable for the 
 
 firm's debts, 766 
 
 PART PERFORMANCE. 
 
 marriage alone is not, of a contract made in relation to it, 144 
 doctrine of, not extended to contracts of service, 834 
 
 PAYMENT INTO COURT, 
 
 under Legacy Duty Act, 692 
 
 such, does not constitute infant a ward of Court, 782 
 
 under Trustees' Relief Act, 782 
 
 such does constitute infant a ward of Court, 782 
 
 PAYMENT OUT OF COURT, 
 
 on reaching majority infant ward entitled to, 692 
 
 testamentary guardian not entitled to, of money paid in under Logacy 
 
 Duty Act, 691 
 not always made by Court of a female ward's money on attaining majority, 
 
 794 
 her consent to necessary, 793 
 when not made, 793 
 
 PEDIGREE, 
 
 cases in, 
 
 what statements as to bastardy of issue admissible, 567 
 
 PERPETUITIES. 
 
 restraint upon anticipation must not offend rule agains', 388 
 
 PERSONAL ESTATE, 
 wife's, 
 
 interest of husband in. 
 specific ohatteL', 179, 196 
 jure mariti, 196, 197 
 
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INDEX. 977 
 
 PEESONAL 'ESTATTS— continued. 
 
 none under M. W. P. Act, 1882, 196, 240 
 
 choses in action, 197-201. (See Glioses in Action.) 
 
 choses in_ reversion, 197, 203-205. (See Reversionary Property.) 
 
 effect of judicial separation and protection order on, 202 
 
 his right to administer to, 197, 198, 240. (See Administration.) 
 
 her legal personal representative. (See Personal Representative. ) 
 her interest in her own, 
 
 cesser of at common law, on marriage in specific chattels, 201 
 
 otherwise In equity where settled to separate use. (See Separate 
 Estate.) 
 
 statutory increase of, 202, 203 
 
 complete under M. W. P. Act, 1882, 202, 357. (See Separate Estate.) 
 
 if married before Act all, acquired since Act, 357 
 
 earnings, 202. (See Earnings.) 
 
 savings, 202. (^ee Savings.) 
 
 deposits, &c., 206. {See Deposit ; Investment; Steele.) 
 
 choses in action. (See Glioses in Action. ) 
 
 choses in reversion. (See Glioses in Reversion.) 
 
 power of disposition over. (See Separate Estate.) 
 Imsband's 
 
 interest of, in his own unaffected by marriage, 196 
 
 wife has no interest in, except on decease of, intestate, 201 
 
 right of widow to administer to, 237, 240. (See Administration.) 
 
 share of widow in, 237, 238. (See JDistrihitions, Statute of.) 
 of children 
 
 interest of parents in, 533, 534. (See Parents.) 
 <if parents dying intestate, 2yj, 238, 554. (See Distributions, Statute of.) 
 
 when child legitimated per subsequens matrimonium may take, 485, 
 568 
 
 when not, 484 
 
 bastard cannot succeed ab intestato to, 571 
 of ward 
 
 entitled to be put in possession of, at majority, 697 
 
 PERSONAL LIABILITY, 
 
 meaning of term, 336 n 
 
 of married woman. (See Liability.) 
 
 PERSONAL REPRESENTATIVE, 
 of marned woman 
 
 her executors no longer take as appointees under a power, but in a 
 representative capacity, 325 
 
 husband will be her, in most cases, 233, 234, 236 
 
 but not the, of the husband, 235 
 
 if husband cited and does not appear, her next of kin will have adminis- 
 tration granted, 235 
 
 rights and liabilities of, 235, 236, 359 
 
 if dispute between her and husband as to property, her executor can 
 enforce her rights against husband, 236 
 
 can her, give a good title to her realty under M. W. P. Act, 1882, as 
 against her heir at law, quoere, 236 
 0/ husband 
 
 intestate, grant of administration to widow a matter of discretion, 237. 
 (See Distributions, Statute of.) 
 
 PERSONAL RIGHTS, 
 
 of husband to control and custody of wife, 168. (See ITashand.) 
 
 mutual, of cohabitation, 170. (See Cohabitation.) 
 
 husband's, to vindicate torts done to wife, 172 
 
 action for enticing and harbouring of wife, 171 
 
 domicil of husband that of wife, 167. {Hee Domicil) 
 
 relation of married woman to the franchise, 175. (See Franchise.) 
 
 of wife to be maintained by husband, 255 
 
 of husband to be maintained by wife, 256 
 
 of child to be maintained by parent, 516-520 
 
 of parent to be maintained by child, 552 
 
 3Q 
 Digitized by Microsoft® 
 
978 INDEX. 
 
 PERSONAL RIGHTS— continued. 
 
 of parent to vindicate wrongs done to child, (^ee Enticement and Har- 
 
 houring; Campbell's Act, Lord; Seduction.) 
 of child to vindicate injuries resulting in parent's death, 563, 564. (See 
 Campbell's Act, Lord. ) 
 
 PHARMACY ACT, 1868, 
 
 liability of master for servant's acts unaer, 889 
 
 PIN MONEY, 
 
 what is, 404 
 
 distinction between separate estate and, 404 
 
 duty of wife in respect of, 404 
 
 when savings out of, are at her disposal, 405 
 
 more than a year's arrears preceding husband's death cannot be claimed, 
 
 404 
 principle of the limits of her claim, 405 
 her representatives cannot claim, 404 
 when she cannot recover arrears of, 405 
 when entitled to account in respect of arrears of, 405 
 
 POLYGAMY, 
 
 what was, in the civil law, 80 n 
 
 POOR LAW. (See Child; Fatlier ; Smband; Mother; Parents; Wife.) 
 liabilities under 
 
 of husband if wife becomes chargeable, 255 
 
 of wife if husband becomes chargeable, 256, 359 
 
 of parent if child becomes chargeable, whether legitimate, 255, 256, 359, 
 
 516. 517 
 or illegitimate, 575 
 
 of child if parent becomes chargeable, 552 
 settlement under 
 
 legal of wife is the last legal of husband, 174 
 
 how wife may acquire legal of her own, 175 
 
 widow irremovable for a year after husband's death, 175 
 
 legal of bastard up to sixteen that of mother, 579 
 
 parish apprentices under, 844 
 
 POOR LAW ACT, 1889, 
 
 control and custody of children under. 
 desertion of parents, 511 
 
 guardians on, may vest control of child, in themselves, 511 
 parents still liable for the support of, 511 
 
 court of summary jurisdiction may determine control, when, 511 
 this right of, does not empower guardians to alter religions education of 
 child, 511 
 
 PORTION, 
 
 object of, 539 
 how raised, 539 
 
 may be raised before child actually wants it, 546 
 equity leaning against double, 539, 541 
 rule extends to persons in loco parentis, 542 
 ademption of legacy by, 540. (See Ademption. ) 
 satisfaction of, by legacy, 540 (See Satisfaction.) 
 powers to raise, 545-548. (See Power of Appointment .) 
 how powers if doubtful should be construed, 546 
 by parent, 
 
 adoances by way of, 543 
 what are, 543, 544 
 what are not, 544 
 
 when child bound to account for, 543, 544 
 when child not bound, 543 
 transfer into name of child, 544 
 presumption of, 544 
 when resulting trust for parent presumed, 544 
 
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INDEX. 979 
 
 PORTION S~continved, 
 
 ■when child advanced deemed owner, 544 
 when deemed trustee for parents, 545 
 presumption extends to persons in loco parentis, 545 
 
 POST-NUPTIAL DEBTS. (See Debts.) 
 
 POST-NUPTIAL DEEDS. (See -'^tttlement .) 
 
 POWER, 
 
 of appointment, 
 
 different kinds of, 372 
 
 to raise portions. (See Portion.') 
 
 a, over income extends as a rule over capital, 372 
 in the case of a married rioman, 
 
 is neither property nor separate property, 396 
 
 formerly enabled her to make a will of realty, 368, 372 
 
 no precise form of words necessary to create, 373 
 
 a general, exercisable by deed renders her mistress of fund, unless 
 restrained, 394 
 
 if exercisable by will over realty, she may dispose of it by will, 373, 394 
 
 she may contract to sell property over which she possesses a, 281 
 
 what, operates to confer absolute property in the corpus of the gift, 374 
 ejcercise of, 
 
 not affected by the Fines and Recoveries Act, since M. W. P. Act, 1882, 
 
 373 
 
 nor by Malins' Act, 373 
 
 she might appoint to husband or a stranger, 373 
 
 may execute, whether appurtenant, in gross, or collateral, or coupled with 
 an interest, and over copyholds as well as freeholds, 373 
 
 not by will if an infant, 373 
 
 may by deed if capacity conferred on her, 373 
 , proper, necessary, 281 
 
 effect of execution. 
 
 what limitations render property liable, 374, 395 
 
 what do not, 395 
 
 execution of, by will did not render appointed property liable for pre- 
 existing debts before M. W. P. Act, 1882, 396 
 
 but since the Act does, 374, 396 
 
 under M. W. P- Act, 1893, existence of free separate property not 
 necessary to make her contract valid, 306 
 
 immaterial whether execution of, precedes or not the incurringtheliability,- 
 
 397 
 exercise of general, in favour of creditor renders property liable, 2S5, 374 
 when property subject to a particular, liable, 394, 395 
 direction to pay debts makes property liable, 374, 396 
 appointed fund liable for ante-nuptial obligations 397 
 no decree of specific performance of covenant by donee of, 397 
 remedies of the covenantors, 397 
 
 frauds on, hy parents, 
 
 must be exercised honestly, 545 
 
 when fraud deemed to have been committed, 545 
 
 charge may be raised by, before child actually wants it, 546 
 
 if language of, doubtful in the case of realty, how to be construed, 546 
 
 when so raised, viewed with suspicion, 54.7 
 
 parent cannot validly bargain with child in respect of, 547 
 
 appointor may release, under Conveyancing Act, 1881, 547 
 
 defective execution of, relieved in equity, 547 
 
 but not in favour of bastard, 572 
 
 exercise of, hy an infant, 
 collateral, by deed, 731 
 
 also when coupled with an interest, if authorized, 373 
 but not by will, 373 
 
 PRECONTRACTS, STATUTE OF, 
 effect of, 17 
 
 repeal of, by 2 & 3 Ed. VI. c. 23, 18 
 in part ro-i?nacted by Lord Hardwicke's Act, 1753, 18 
 
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980 INDEX. 
 
 PREMIUM, 
 
 in apprenticeship deed must be properly set out, 845 
 when justices may order return of, 847 
 on death of master or apprentice not returnable, 848 
 unless specially provided for, 848 
 
 PREVENTION OF CBUELTY TO CHILDREN ACT, 1894, 
 cruelty to children under sixteen, 
 
 by person having custody, charge or control of, 633, 805 
 
 by assault, illtreatment, neglect, abandonment, or exposure, 633, 805 
 
 such cruelty likely to cause unnecessary suffering or injury to health, 
 
 633. 805 
 such cruelty a misdemeanour, 633, 805 
 result of conviction. 
 
 parent or guardian punishable, 633, Soj 
 
 custody of child given to person willing to take charge of it, 633, 805 
 
 parent or guardian favouring prostitution of child or ward to be divested 
 
 of authority over her, 633 
 coart may appoint a fit person willing to take charge of her till majority, 
 
 633. 634 
 boy under fourteen or girl under sixteen not to be employed in public 
 
 begging, 805 
 or in public houses or, places of entertainment between 9 p.m. and 
 
 6 A.M., 805 
 when child over seven licensed to take part in public entertainments, 805 
 evidence under, 
 
 admissibility of, of young ohildren'uot on oath, 717 
 corroboration of, by other material evidence, 717 
 of husband and wife, 245 
 
 PREVIOUS MARRIAGE, 
 
 unless dissolved, an impediment to the contracting of a second marriage, 
 
 80 
 bigamous marriage null and void without sentence, 80 
 if suit brought, lapse of time or misconduct no bar, 80 
 bigamy originally an ecclesiastical offence, 8i 
 now a felony, 80, 81 
 defences in bigamy, 81 
 onus of disproof of knowledge as to existence of absent spouse not thrown 
 
 on the accused, 81 
 when seven years' absence of spouse not insisted on, 82 
 first marriage must be strictly proved, 82 
 punishment on conviction, 81 
 
 bond of marriage exists till decree absolute of court, 82 
 competency of foreign court to dissolve an " English marriage," 83. 
 
 (See Divorce, international aspect of.} 
 an "English marriage" does not include every marriage celebrated in 
 
 England, 83, 466 
 
 PRIEST, 
 
 intervention of, in marriage not necessary by canon law, 13 
 intervention of, in marriage formerly necessary by English law, 18 
 not now necessary since Marriage Act, 1836, -^2 
 infant cannot be a, 714 
 
 PROBATE. {&ee Administration ; Executor.) 
 origin of grant of, 238 
 of mill of a married woman. 
 
 Court of, formerly required proof of separate estate before making grant 
 
 of, 371 
 such proof not now requisite, 371 
 before M. W. P. Act, 1882, " limited" grant of, 371 
 husband right to have a grant of administration cxterorum, 371 
 since M. W. P. Act, 1882, grant of, is " general," 371 
 ■executor of, trus'ee for her husband, subject to the payment of her 
 
 debts, 372 
 usual course in case of, followed, 372 
 
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INDEX. 981 
 
 PROBATE AND DIVORCE COURT. (See Divorce Cwirt.) 
 
 Court of Appeal in orders of maintenance and separation under Summary 
 Jurisdiction (Married Women) Act, 1895, 354 
 
 PROCHEIN AMY, 
 
 the person who formerly sued out process for an infant, 809 
 how appointed, 809 n, 
 
 no longer appointed, the equity practice prevailing, 809. (See Next 
 Friend. ) 
 
 PROHIBITIONS, 
 
 diriment, effect of, 107 
 impedient, effect of, 107 
 
 PROMISE, 
 
 to marry need not be in writing, 116 
 
 in consideration of marriage, must be, to be binding, 126, 144. (See 
 
 Marriage Articles.) 
 breach of, to marry, 112-119. (See Breach of fromise of Marriage, 
 
 Action for.) 
 new, in respect of infants' contracts after attaining majority now 
 
 generally necessary, 762 
 when his new, void as against all persons, 806 
 
 PROMISSORY NOTE, 
 
 of infant, 
 
 void, 726 
 
 even for necessaries under Infants' Relief Act, 1874, 726, 752 
 
 unless perhaps if guilty of express fraud, 726 
 
 cannot now be ratified, 726 
 
 infant may bring action on, against adult, 726 
 of a married woman, 
 
 a chose in action, 198 
 
 formerly not binding at law, 284 
 
 rendered her separate property liable in equity, 283 
 
 husband not liable on her fraudulent, 269 
 
 authority to bind husband by, a question of fact, 279, 303 
 
 new presumption against, in respect of her, 279, 303 
 
 primd facie liable on, 284, 302 
 
 her agency must appear on face of, to shift liability, 302 
 
 PROTECTION OF CHILDREN. (See Parents.) 
 
 PROTECTION OF INFANT LIFE ACf, 1872, 803 
 
 PROTECTION OF INFANTS, 
 remedies for, 
 
 as regards the person, 
 habeas coirpas for illegal detention, 800 
 action for personal injuries, 801. (See Negligence.) 
 statutory, 
 
 Industrial Schools Acts, 1866 and 1880. 803 
 
 Protection of Infant Life Act, 1872, 803 
 
 Factory and Workshop? Acts, 1878 and 1891, 805 
 
 Dangerous Performances Act, 1879, 803 
 
 Criminal Law Amendment Act, 1885. (See Criminal Law Amendment 
 
 Act, 1885.) 
 Intoxicating Liquors (Sale to Children) Act, 1886, 804 
 Coal Mines Regulation Act, 1887, 804 
 Betting and Loans (Infants) Act, 1892, 806 
 Shop Hours Act, 1892, 805 
 
 Prevention of Cruelty to Children Act, 1894. (See Prevention of Cruelty 
 to Children Act, 1894.) 
 as regards property, 
 
 accounts for rents and profits, 806 
 action for recovery of land, 806 
 
 Digitized by Microsoft® 
 
982 INDEX. 
 
 PROTECTION OF m¥AtiTS— continued. 
 
 infant not barred till after twelve years, where person in possession was 
 
 in a fiduciary position, 806 
 after six years where such person not in a fiduciary position, 807 
 National Debt Act, 1892, 807 
 
 PROTECTION ORDER, 
 
 how obtained, 282 
 
 on what grounds, 282, 351, 352. (See /Summary Jurisdiction (Married 
 Women) Act, 1895.) 
 effect of, 183, 282 
 
 married woman a, feme sole, 282, 351 
 
 in respect of suing or being sued in contract, 282, 351 
 
 or in tort, 282, 351 
 
 as a trustee, 352 
 
 as an executrix or administratrix, 352 
 
 might make a will during pendency of, 369 
 
 will passes property acquired by her during pendency of, 351 
 
 upon husband's interest in wife's real estate, 183 
 
 in her choses in action or reversion, 199, 351 
 
 in her specific chattels, 202, 35 1 
 
 on her lawful earnings, 351. (See Earnin(js.) 
 
 husband disentitled to administer to wife's estate, 232, 233, 354 
 
 is as though dead, 233 
 
 is freed from liability for wife's debts, if agreed alimony paid, 311 
 
 and for her torts, 272, 351 
 
 resumption of cohabitation did not affect dealings of wife under, 352 
 
 upon restraint upon anticipation, 377 
 
 has a retrospective force, 351 
 discharge of, 
 
 on what grounds, 352 
 
 PROVIDENT NOMINATIONS AND SMALL INTESTACIES ACT, 1883, 
 
 illegitimate child on death of intestate parent takes under, as if 
 legitimate, 573 
 
 QUAKERS, 
 
 validity of marriages of, recognized, 103 
 not affected by Lord Harwicke's Act, 20, 103 
 not affected by 4 Geo. IV. c. 76, 22, 103 
 . recognized by 6 & 7 Wm. IV. c. 85, 23, 103 
 
 may marry on registrar's certificate or licence, 103 
 
 where parties marrying not, 103 
 
 must be married in presence of registering officer of a meeting house, 104 
 
 presence of marriage registrar dispensed with, 105 
 
 mariiages of, in Ireland, 51, 52 
 
 marriages of, in Scotland,2 7, 29 
 
 QUARANTINE, 
 
 of widow, 221 
 
 QUASI-GUARDIANSHIP, 
 
 how it may arise, 611 
 
 QUEEN'S PROCTOR, 
 
 intervenlion of, in suits for nullity of marriage, 66 
 
 RAPE, 
 
 boy under fourteen cannot be convicted of, 716 
 husband cannot be convicted of, on wife, 169 
 but may of aiding and abetting a, on her, 169 n 
 
 RATIFICATION, 
 
 by husband of wife's contracts as agent, 303 
 of acts and contracts of an infant, 
 what is, 759 
 the principle of, 759 
 distinction between new promise and, 759, 760 
 
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INDEX. 983 
 
 RATIFICATION— eon(in«erf. 
 
 need not be of a formal nature, 759, 760 
 must be in writing, 761 
 exceptions to rule, 761, 762 
 not binding during minority, 759 
 
 effect of Infants' Relief Act, 1874, on, 723, 735, 759, 761 
 not now effectual so as to be enforceable by action, 761 
 new promise now necessary, 762 
 «ffs and contracts capable of, 
 
 things connected with realty, 737 
 purchasers, 764 
 sales, 764 
 
 leases, 738, 739, 764 
 continuing contracts, 737, 765 
 partnership, 765. (See Partner.) 
 shareholding, 765. (See shareholder.) 
 of service, 766 
 
 marriage settlement by acquiescence, 773, 776 
 
 election of married woman in respect of her settlement, 773-775. (Sec 
 JldectloH.) 
 
 RAVISHMENT OF WARD, 
 
 writ of, formerly in use, 630 
 
 modern remedy is habeas corpus, 590, 630 
 
 EEAL ESTATE, 
 
 succession to, in England, on intestacy, depends on legitimacy, 475, 484, 
 
 568 
 when person legitimated per subsequens matrimonium may take, 485 
 inherit a ncc of, 
 
 on death of parent intestate, eldest son takes the whole of the, 554 
 no right of, in bastard child, 571 
 oj an infant, 
 
 rights of the father and mother over, 529. (See Parents.) 
 
 father succeeds to intestate's, 530 
 
 where the mother succeeds, 530 
 
 statutory power of the Court of Chancery and of guardians over, 666-687. 
 
 (See Guardian of the Estate.) 
 ■non-separate of wife, 
 interest of husband in. 
 formerly in her freeholds during coverture or for life, i8i, l86 
 mortgages by, 181 
 leases by, 182 
 
 under Settled Estates Act, 1877, 182 
 in her estates for life, 183 
 under the Settled Land Act, 1882, 183 
 modification of, by M. W. P. Act, 1870, 184 
 and by M. W. P. Act, 18S2, 184 
 in her leaseholds, 184. (See Chattels Real.) 
 
 when created by termination o£ the coverture, 216-218. (See. Curtesy.) 
 effect of judicial separation on, 183. (See Judicial ^Separation.) 
 effect of protection order on, 183 
 interest of wife in htr own. 
 
 she could not formerly dispose of, inter vivos, 181, 249. (See Separate 
 
 Estate.) 
 except with her husband's concurrence, 181, 249. (See Acknowledgment! 
 
 to Bo,r Wife's Interests. ) 
 or under a power, 182, 372-374- (See Power.) 
 nottodisposeof, by will, 182, 250, 251, 368. (See Will.) 
 by way of mortgage, 193. (See Mortgage; Exoneration, Equity oJ ; 
 
 Bedcmption, Equity of. ) 
 under M. W. P. Act, 1870, 35s 
 .separate of wife. 
 
 interest of husband in 
 
 none during coverture, 183, 364 
 
 by curtesy, if undisposed of by her, 368 
 
 under M. W. P. Act, 1870, 184 
 
 taken away by M. W. P. Act, 1882, 185 
 
 Digitized by Microsoft® 
 
984 INDEX. 
 
 EEAL 'EST ATI'S— continued. 
 
 interest of wife in her own 
 
 under M. W. P. Act, 1870, 186, 355 
 
 under M. W. P. Act, 1882, 186, 357. (See Separate Estate.) 
 
 her power of disposition over. (See Separate Estate; Will.} 
 
 undisposed of, descends to her heirs, 368 
 leases of, hy married woman 
 
 joint with husband under Settled Land Act, 1882, 183 
 ' sole under M. W. P. Act, 1882, 184. (See Separate Estate.) 
 
 under Agricultural Holdings Act, 1883, 195 
 of husband 
 
 his interest in his own, unaileoted by coverture, 180 
 
 wife's interest in, inter vitios does not exist except by contract, 186 
 
 her dower rights in, 218-231. (See Dower.) 
 
 RECEIPT, 
 
 infant cannot give a valid, 725 
 
 unless authorized, 725 
 
 or as a married woman under the Conveyancing and Law of Property 
 
 Act, 1 88 1, 677, 725 
 of trustees and guardians under Settled Land Act, 1882, 678 
 
 KECEIVER, 
 
 who is a, 693 
 
 office not gratuitous as that of trustee, 701 
 in the case of a married woman 
 
 may be appointed to her estate, 338, 432 
 
 over her head, 338 
 
 does not supersede her trustees, 432 
 
 when appointed, 338, 432 
 
 to enforce payment of costs, 333, 363 
 
 how appointed, 432, 693 
 
 duties of, 338, 432 
 in the case of an infant 
 
 appointed by the Court, 693 
 
 without a suit, ^93 
 
 when appointed, 693 
 
 though (here be testamentary or other guardians, 694 
 
 security to be given by, 694 
 duties of 
 
 as to real estate, 694 
 
 may distrain for rent, 694 
 
 as to personal estate, 694 
 
 liabilities of, 695 
 
 discharge of, 695 
 
 passing accounts, 696 
 
 Statute of Limitations does not run in his favour in respect of property- 
 unaccounted for, 695, 696 
 
 RECTIFICATION OF MARRIAGE SETTLEMENTS, 
 not confined to executory contracts, 151 
 in pursuance of marriage articles, 150 
 even when settlement contains no reference to the articles if intended tO' 
 
 conform to them, 150 
 when variance between articles and settlement, 150 
 on ground of mistake, 151. (See Mistake.) 
 on ground of fraud, 152. (See Fraud.) 
 
 power of, of Court of Chancery under Trustee Relief Act, 1847, 152 \ 
 lapse of time no bar to, 152 
 on behalf of whom, 152 
 parol evidence admitted for the purpose of, 152 
 
 REDEMPTION, EQUITY OF (WIFE'S), 
 
 arises in the case of mortgage of wife's realty by husband and wife> 
 
 193 
 questions as to, between husband and wife, 193 
 remained generally in wife and her heirs, 193 
 
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INDEX. 985 
 
 REDEMPTION, EQUITY OF (,WlF-E'S)-continued. 
 
 ^°ieeT*' °^^^^^ °^ property must have been intended by the mortgage 
 
 gone where deed operates as a new settlement divesting her of her 
 
 interest, 194 ° 
 
 her consent necessary to such change, 193 
 clearly exists since modern changes in the law, 194 
 
 REDUCTION INTO POSSESSION, 
 meaning of term, 199 
 what is sufficient of ohoses in action, 199 
 what is insufficient, 200 
 if husband and wife married before M. W. P. Act, 1882, joint action, 
 
 necessary, 206 
 if married after, sole action by wife sufficient •'06 
 effect of, before and after M. W. P. Act, 1882, came into force, 20?, 
 
 206 ' - ^ 
 
 REFORMATORY SCHOOL, 
 
 when child under sixteen may be sent to, 717 
 
 REGISTRAR OF MARRIAGES, 
 superintendent, 
 in England, 
 
 notice of intended marriage to be given to, 99, 100 
 
 when notice to be suspended in office, loo 
 
 when notice need not be suspended, 100 
 
 issue by, of certificate, 100 
 
 issue by, of licence, lOO 
 
 presence of, requisite at all marriages other than Church of England, and 
 of Quakers and Jews, 23, 102 
 
 marriage in the presence of, at his office, 102 
 
 no religious ceremony to be used, 102 
 
 parties must express matrimonial consent in his presence, 102 
 
 in a registered building, 10 1 
 in Ireland, 
 
 presence of, not requisite, except at marriage in his office, 46, 52, 53, 54 
 
 marriage in the presence of, at his office, 54 
 
 no statutory jirovision for religious ceremony after marriage before, 54 
 in /Scotland, 
 
 certificate of, 27 
 
 of equal force to session-clerk's certificate, 27 
 
 clergyman of Established Church not bound to marry on, 28 
 
 REGISTRATION. (See Registrar of Marriages.) 
 of foreign marriages,- no 
 of marriages on board British merchant ships, 1 10 
 
 RELATIONSHIP WITHIN THE PROHIBITED DEGREES, 
 
 formerly canonical, but now a civil impediment in its effect, 78 
 
 5 & 6 Wm. IV., c. 54, s. 2, 78 
 
 arises out of consanguinity, 78 
 
 and affinity, 79 
 
 prohibition extends to bastardSj 79 
 
 also to the half-blood, 79 
 
 marriage with dead wife's sister void, 79 
 
 decree of nullity will be pronounced in suit, though not necessary, 80 
 
 RELEASE, 
 
 infant bound by, of debt, by guardian, if beneficial, 690 
 
 when, of guardian by ward void, 725 
 
 guardian entitled to, on termination of office, 698 
 
 of guardian by ward soon after majority viewed with suspicion, 698 
 
 when set aside, 706, 707 
 
 of power, by married woman, 373, 374 
 
 by appointor under Conveyancing Act, 188 1, S47 
 
 Digitized by Microsoft® 
 
986 INDEX. 
 
 RELIGION, 
 
 that of father to prevail in the education of a child, 523. (See Educator.) 
 
 father not disentitled to custody of child on ground of, 504 
 
 no disqualification for the appointment as a testamentary guardian, 599 
 
 KE-MAIIRIAGES, 
 
 religious ceremony supplemental to. but not in supersession of the civil, 103 
 
 under what circumstances ceremony added, 103 
 
 no provision for religious ceremony after civil in Ireland, 54 
 
 when ordered by Court of Chancery in case of female ward, 788 
 
 BEMEDIES, 
 
 for the protection of infants. (See Protection of Infants. ) 
 of a married woman in respect of her property, 
 civil, 
 
 under M. W. P. Act, 1870, 401 
 
 enlarged by M. W. P. Act, 1882, 358, 401 
 
 not only to secure, but to prevent it being injured, 401 
 
 specific performance, 401. (See Specific performance.) 
 
 injunction, 401. (See Injunction.) 
 
 sole suit against strangers both in contract and in tort, 401. (See 
 Action; Contract; Tort.) 
 
 and against husband both in contract and in tort connected with her 
 property, 248, 259, 401, 425 
 
 but not for personal tort committed during coverture after its termina- 
 tion, 248, 401 
 
 a new provision as regards torts, 425 
 
 injunction against husband's interference in business, 401 
 
 to keep him out of the house which is the matrinjonial, domicil, qucere, 
 
 401, 402 
 
 exclusion of him by interim injunction pending divorce proceedings, 359, 
 
 402, 425 
 
 questions as to property between husband and, to be summarily settled, 
 397-400. (See Disputes between Husband and Wife as to their property.) 
 criminal, 
 full as against strangers, 402 
 
 when as against husband under M. W. P. Act, 1882, 247, 359, 402 
 doubtful meaning of the terms " leave " and " desert," 247 n, 403 n 
 whether obtaining money, &c., under false pretences, or larceny by a 
 
 trick included, 247 n 
 sufficient in the indictment to lay the property in her, 403 
 her liability to criminal proceedings at suit of husband, 359, 403 
 
 REMOVAL, 
 
 of guardian by Court, 626. (See Guardian. ) 
 
 of widow from husband's settlement after his death, 175 
 
 BENT, 
 
 in the case of husband and wife, 
 
 arrears of, a chose in action, 198 
 
 husband formerly entitled to, of wife's lands, 181 
 
 he or his representatives might sue for arrears of, after coverture 
 terminated, 181 
 In the case of an infant, 
 
 when liable to pay, 727, 739, 765 
 
 when he may recover, 738 
 
 liable after majority for arrears of, if he occupy, 739, 765 
 
 acceptance of, a confirmation of lease, 738 
 
 non-reservation of, does not render lease by, void, if otherwise beneficial, 
 
 738 
 distress for, by a receiver, 694 
 
 REPAIRS, 
 
 powers of guardians under Conveyancing and Law of Property Act, 1881, 
 
 to execute, 680, 681 
 when not allowed to charge inheritance for, 682 
 amount for, a matter of discretion, 680 
 may execute, though not specifically authorized, 680 
 
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INDEX. 087 
 
 REPAIRS— C0TO(ift«ed 
 
 may apply surplus rents and profits and accumulations for, 680 
 
 must be necessary, 680 
 
 mortgage or sale of property for, when authorized, 681 
 
 even for prospective, if in the nature of salvage, and the infant is owner 
 
 in fee, 681 
 ornamental improvements not allowed for, unless substantial and 
 
 beneficial, 681 
 effect of Settled Land Act, 1882, on liability of infant tenant for life to 
 
 keep premises in repair, 681 
 
 REPUDIATION, 
 
 of shares by infants, 741, 743. (See Shareholder.) 
 
 REPUTE, 
 
 marriage by, 35. (See Habit and Bepute.) 
 name acquired by, 92 
 
 REQUIREMENTS OF A VALID MARRIAGE, THE ESSENTIAL. 
 
 consensus of contracting parties, 13, 66, 68, 70 
 
 intervention of priest formerly, but not now, necessary, 13 
 
 formalities determined by the lex loci celebrationis, 87,457-463. (See 
 Loci Celebrationis, Lex.) 
 
 capacities of the parties to contract determined by the lex domicilii, 87 
 458-463. (See Z>0)«ic»7. ) 
 
 consent of proper parties, 87-90. (See Consent of Proper Parties.) 
 according to tlie Established Church of Evyland. 
 
 publication of banns, 91-95. (See Banns.) 
 
 special licence, 19,95. (See Licence.) 
 
 common licence, 95-97 
 
 registrar's certificate, 22, 97. (See Certificate.) 
 
 presence of a duly ordained minister, 97-99. (See Minister.) 
 of Nonconformists 
 
 registrar's certificate, 99-101. (See Certificate.) 
 
 registrar's licence, 100, loi. (See Licence.) 
 
 marriage must be in registered building, loi 
 
 marriage must be in presence of a registrar, 102 
 
 hours of marriage, 8 a.m. to 3 p.m. 
 
 no religious ceremony to be used, 102 
 
 parties must express their matrimonial consent, 102 
 of Quakers, 103, 104. (See Quakers.) 
 o/Jetcs, 104, 105. {See Jews.) 
 
 of British subjects abroad, 105-ln. (See Foreign Man-iages.) 
 in India. (See Foreign Marriages.) 
 in Ireland. (See Ireland, Marriage Laws of. ) 
 in Scotland. (See Scotland, 2tarriage Laws of.) 
 
 RESIDENCE, 
 
 period of, requisite before publication of banns in England, 94 n 
 
 in Scotland, 26 
 
 before obtaining a common licence in England, 96 
 
 in Ireland, 47 
 
 the registrar's certificate, 99 
 
 the registrar's licence, 100 
 
 of parties to found jurisdiction in divorce in Scotland, 43, 471 
 
 to found divorce in England, 471-473 
 of ward 
 
 when in nature of domicil cannot be changed by guardian, 631 
 of ward of court 
 
 in discretion of the Court, 505, 506, 797, 798 
 
 disclosure of, insisted on, 797, 798 
 
 RESPONDEAT SUPERIOR, , . ^ . ., < 00 
 
 principle of maxim applicable to relation of master and servant, t>»i 
 
 RESTITUTION OF CONJUGAL RIGHTS, 
 
 decree of, not enforceable by attachment, 451 
 intentional non-compliance with decree is desertion, 451 
 
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988 INDEX. 
 
 RESTITUTION OF CONJUGAL yUGniS— continued. 
 
 Divorce Court in application for, has power over settlements of wife's 
 
 property, 164, 451 
 property must not be subject to restraint, 164 
 Court may take into account the conduct of the parties, 164, 451 
 power of Court over the custody of children, 451, 512. (See Custody and 
 
 Control of Children. ) 
 deed of separation formerly a ground for restraining proceedings for, 
 
 439 
 is now to be pleaded by way of equitable defence, 439 
 
 RESTRAINT UPON ANTICIPATION, 
 a creation of equity, 375 
 for what purpose devised, 375 
 
 cannot be imposed on gifts to a man or single woman, 362, 377 
 must not offend against the rule against perpetuities, 388 
 enlargement of an estate tail to one in fee is no violation of, 384 
 anticipating not the same as attempting to anticipate, 384 1 
 
 liow created 
 
 no particular form of words necessary, if intention to create clear, 376 
 what words sufiBcient, 376 
 what words insuflScient, 376 
 
 ambulatory operation of 
 
 may apply generally, or to a particular coverture, 377, 378 
 takes effect only during coverture, 362, 377 
 lapses into abeyance on termination of coverture, 377 
 revives on second marriage, unless in meanwhile married woman has 
 altered form cf investment, 377 
 
 071 what property it can take effect 
 realty and personalty, 377 
 as regards personalty, test not whether fund is or is not income-bearing, 
 
 378 
 
 intention of donor to prevail, 378 
 
 property over which a married woman has a particular power of appoint- 
 ment, 394 
 
 powers exerciseable under the Settled Estates Act, 1877, and the Settled 
 Land Act, 1882, 388 
 
 alimony, 389 
 statutory preservation of 
 
 by M. W. P. Act, 1882, 265, 362, 378, 379 
 
 in full as regards, imposed by stranger, 379 
 
 effect of, 362 
 
 by herself, ineffectual as against her ante-nuptial creditors, or under 
 Bankruptcy Act, 379, 380 
 
 by M. W. P. Act, 1893, 290, 336, 363. 380, 392 
 
 removable under, for costs of improper suit, 333, 363, 381, 392 
 effect of 
 
 limitation of married woman's contractual power in equity, and under 
 M. W. P. Act, 1882, 382 
 
 separate property subject to, not free separate property, 280, 287, 382, 393 
 
 practically non-existent for contractual purposes, 382 
 
 or to charge after acquired property, 384 
 
 alteration effected by M. W. P. Act, 1893, 384 
 
 separate property subject to, cannot be validly charged, 382 
 
 in respect of her contracts, 287, 382, 390 
 
 or breaches of trust and torts, 272, 381, 385 
 
 or to be charged so as to become liable when she is discovert, 382 
 
 reversionary property subject to, during that period only, cannot be 
 charged during that period, 201, 382 
 
 if income subject to, creditors can only get at that which from time to 
 time comes into her hands, 382, 393 
 
 married woman prevented from alienating property subject to, 381 
 
 no process can be issued against it, 265, 383 
 
 except under M. W. P. Act, 1893. (See M. W. P. Act, 1893.) 
 
 former, on her liability for costs, 332, 333 
 
 alteration effected by M. W. P. Act, 1893. (See M. W. P. Act, 1893.) 
 
 on her covenant to settle after acquired property as against her post- 
 nuptial creditors, 141, 382 
 
 Digitized by Microsoft® 
 
INDEX. 989 
 
 EESTRAINT UPON ANTICIPATION— conhnwed. 
 
 upon her right of election to be bound or not by her covenant (as an 
 infant) to settle her after-acquired property, 134, 389, 390, 775. (See 
 J!!lectio)i.) 
 when ineffectuiil. 
 
 under M. W. P. Act, ,1870, in respect of her ante-nuptial contracts and 
 
 torts, 263 
 whether fund settled by herself or a stranger, 263 
 as against the bankruptcy laws, if a trader, and if imposed by herself in 
 
 a settlement, 319, 379, 432 
 otherwise, if imposed by a stranger on his gifts, 379 
 where she is sued otherwise than in contract, 383 
 where she should refund money erroneously paid to her, 384 
 removal of 
 
 cannot, as a rule, be dispensed with, 384 
 except for raising costs of suit, 384 
 
 no inherent power of, in Court of Chancery, 272, 382, 384, 390 
 even in rases of fraud, 272, 382, 385 
 or tort, 385 
 
 or breaches of trust, 385, 387 
 statutory, power of, 
 
 under Trustee Act, 1893, for breaches of trust instigated by her, 385, 
 
 387. (See Breach of Trust.) 
 under the Conveyancing and Law of Property Act, 1881, 385 
 is in discretion of the Court, 385 
 must be for the benefit of the married woman, 385 
 but not merely for her benefit, 385 
 when granted, 386 
 when refused, 386 
 her consent to, necessary, 387, 388 
 whether her separate examination necessary, 388 
 application for, by summons only, 388 
 under M. W. P. Act, 1893, 333, 363, 381, 392 
 power of Divorce Court over, 384, 388 
 only when she is guilty of adultery, 384, 388 
 
 EESULTINa TRUST, 
 
 when a, arises for benefit of wife and her heirs, 193 
 when from dealings of guardian with ward's estate, 702 
 presumption of transfer by parent into name of child being an advance- 
 ment and not a, 544 
 presumption of advancement rebuttable, 544 
 presumption extends to persons in loco parentis, 545 
 
 REVERSIONARY PROPERTY, 
 icife's, 
 'not settled to her separate use, . . 
 
 interest of husband in, depended upon reduction into possession during 
 
 coverture, 197, 203, 204 
 his, taken awav by M. W. P. Act, 1870, where it did not exceed ;^200 
 also by termination of coverture by dissolution, 203 
 by judicial separation, 351 
 by protection order, 351 
 by separation order, 351, 352 
 by M. W. P. Act, 1882, 197, 357 
 except on administration to her estate, 197 
 her interest in, under M. W. P. Act, 1882, 203 
 
 it married after Act, unaffected by any marital right, 203, 205, 357 
 if married before Act, and her, falls into possession during coverture, 
 husband entitled to, unless settled to her separate use, 203 
 settled to her separate use, 
 
 husband had no interest in, 203 
 she might solely dispose of, inter vivos, 204 
 or by will, 369 
 assiqnment of, 
 
 not valid by wife, unless separate property, 203, 249 
 
 when fallen into possession, 204 
 
 before falling into possession, formerly invalid, 203, 204, 212 
 
 Digitized by Microsoft® 
 
1)90 INDEX. 
 
 REVERSIONARY PROPERTY— co«<inj«i(i. 
 
 effect of joint, by husband and wife, 204 
 
 of sole by husband, as between him and his assignee, 204 
 
 as between wife, and his assignee, 204 
 
 she could not bar her right to survivorship, 204 
 
 under Malins' Act, joint valid, though not fallen into possession, 204, 
 
 205, 213 
 such must conform to the Fines and Recoveries Act, 204, 213. (See 
 
 Aclcnowledgments to Bar Wife's interests.) 
 under M. W. P. Act, 1882, 203 
 settlement of, ' 
 
 covenant to bring into, by wife, 129, 138 
 even if liable to be divested, 138 
 
 reduction into possession during coverture necessary, 133, 139 
 under M. W. P. Act, 1882, wife alone must covenant, 136 
 wife's former equity to a, when reduced into possession, 204 
 wife's power of appointment over, may be released by married woman, 373. 
 
 (See Power.) 
 over which restraint exists during reversionary period only, cannot be validly 
 charged during that period, 382 
 
 REVOCATION AND SETTING ASIDE OF SETTLEMENTS, 
 settlement may be revoked before marriage, 153 
 on what ground voluntary settlement set aside, 153 
 voluntary settlement cannot be set aside by settlor, 154 
 exceptions, 154 
 onus of proof on settlor, 1 54 
 settlements affected hy 13 Eliz. c. 5 
 
 consideration of marriage will not support all' settlements, 154 
 
 if executed to defeat, &o., creditors set aside, 154 
 
 express intention to defeat creditors necessary in case of ante-nuptial, 
 
 154 
 both settlor and purchaser must concur in fraud, 155 
 embarrassed circumstances of settlor insuflicient, 155 
 when both husband and wife implicated in fraud, 155 
 fraudulent, an act of bankruptcy, 155 
 voluntary, may be set aside without proof of fraud, 155 
 proof of delay, &o., of creditors sufficient, 156 
 intent actual or constructive to delay, &c., creditors must be inferred, 
 
 156, 158 
 constructive fraud sufficient, 157 
 
 want of consideration and embarrassed circumstances, 1 58 
 when voluntary, upheld, 158 
 voluntary, of married women set aside, 158 
 effect of M. W. P. Act, 1882, on married woman's, 158, 159 
 settlements of real estate affected hy 27 MHz, c. 4 
 protection of purchasers, 159 
 who are purchasers under the Act, 1 59 
 when void for want of consideration, 159, 160 
 when not, 159 , 
 
 voluntary, void as against purchasers with notice, 130 
 consideration need not be pecuniarily adequate, or appear on face of the 
 deed, 160 
 settlements affected hy the Bankruptcy Act, 1883 
 
 no distinction now between traders and non-traders as to settlements, 
 
 160 
 married woman separate trader amenable to Act, 161 
 when void, 161 
 
 proof of fraud not necessary, 162 
 voluntary settlement of personal chattels to be r egistered as a bill of 
 
 sale, 162 
 by Divorce Court, 163, 165, 447. (See Divorce Court.) 
 
 ROYAL MARRIAGE ACT, THE. (12 Geo. III. c. 11.) 
 
 what descendants of George II. must obtain the reigning sovereign's 
 
 consent to marry, 84 
 when such may marf'y without his consent, 84 
 effect of, not confined to marriages celebrated in England, 84 
 
 Digitized by Microsoft® 
 
INDEX. 99J 
 
 RUSSELL'S ACT, LORD JOHN, 
 provisions and effect of, 22 
 
 SALE, 
 
 of infant's property. (See Infant; Contract.) 
 
 of married woman's property. (See Acknowledgments to Bar Wife's 
 
 Interests ; Separate Estate.) 
 of ward's laiids 
 
 powers of over, may be exercised, 665 
 
 by the Court and guardians, 666 
 
 Court has no inherent power to order, 664 
 
 formerly directed in suits for foreclosure and administration, 665 
 
 for payment of his ancestor's debts, 666 
 
 by charging costs on the inheritance, 666 
 
 under the Partition Acts, 666, 667 
 
 under the Trustee Acts, 667, 729 
 
 under the Settled Estates Act, 1877, 667 
 
 of what parts of his property, 667 
 
 large powers of, under Settled Laud Acts, 1882 and 1890, in his trustees, 
 
 668-671 
 
 SALE OF FOOD AND DRUGS ACT, 1875, 
 
 liability of master for servant's acts under, 889 
 
 SATISFACTION, 
 
 what is, 540 
 
 when legacy satisfies a portion, 540 
 difference between ademption and, 541 
 election of person doubly benefited, 541 
 intention of donor material, 542 
 presumption of, rebuttable, 541, 542 
 when parent indebted to child, 542 
 when advancement deemed a, of a debt, 542 
 
 SAVINGS, 
 
 by wife out of household moneys of husband remain his, 294, 398 
 
 unless they are living apart, 294, 398 
 
 when living apart, husband cannot claim, during her life, but may after 
 
 her death, 399 
 when onus of proof on husband that they are his property, 294, 399 
 out of separate property are separate estate, 348 
 out of separate estate liable to incidents of separate estate, 348 
 exception, 348 
 of money remitted by husband by way of maintenance are separate estate, 
 
 348 
 husband cannot bring action to recover separate, 348 
 questions as to, between wife and husband, 398 
 husband's moneys and investments thereof appropriated by wife without 
 
 his consent remain his, 399 
 interest of married woman in her, 202, 348 
 under M. W. P. Act, 1870, 202 
 under M. W. P. Act, 1882, 202 
 when, out of her pin-money are at her disposal, 405. (See Pin-Money.) 
 
 SCHOOL ATTENDANCE, 
 age of, 522 
 
 SCOTLAND, MARRIAGE LAWS OF, 
 
 decrees of Council of Trent not recognized as valid, 24 
 ref/ular marriages, 25 
 
 after proclamation of banns where parties are members of the Established 
 
 Church, 25, 28. (See Banns in Scotland.) 
 where parties are members of the Episcopalian Church, 26, 28 
 where parties are other dissenters, 27, 28 
 on registrar's certificate, 25, 27 
 
 minister of Established Church not bound to marry on, 28 
 by ministers of religion other than those of Established Church, 28 
 presence of clergyman necessary to, 29 
 irregular marriages 
 
 Digitized by Microsoft® 
 
992 INDEX. 
 
 ■ SCOTLAND, MAKRIAGE LAWS OV— continued. 
 
 whether sponsalia constitute complete marriage, 29 
 
 hj sponsalia joer verba de prcesenti, 21-33- (See Sponaalia per Verba de 
 
 Prcesenti.) ' 
 
 hy sponsalia per verba de futuro cum copula, 33-35. (See Sponsalia per 
 
 Verba de Futuro cum Uopuld.) 
 by habit and repute, 35. (See Habit and Bepute.) 
 penalties on the parties to, 36 
 on the witnesses to, 37 
 on the celebrator, 37 
 declarator of marriage, 38 
 magistrate a witness rather than celebrator, 38 
 effect of production of decree of, 40 
 registration of marriages 
 regular, 38 
 mixed, 39 
 irregular, 39 
 
 when double, necessary, 40 
 
 effect of production of conviction or decree of declarator, 40 
 divorce. (See Divorce.) 
 
 difference between English and Scotch law of, 41-43, 471 
 
 SEARCH, 
 
 no right of, in master of servant's boxes, 898 
 warrant 
 
 when master should apply for, in respect of servant, 898 
 
 SECRETARY OF A SYNAGOGUE, 
 
 official registrar of Jewish marriage, 104 
 duties of, 104 
 
 SEDUCTION. (See Criminal Law Aviendment Act, 1885. ) 
 action for 
 
 right of, based on loss of service through pregnancy of daughter, 559 
 
 relation of master and servant necessary to found, 559, 560, 862 
 
 infancy or majority of daughter immaterial, 561 
 
 constructive service sufficient, 560 
 
 who may maintain, 560, 561 
 
 whether mother living voluntarily apart from father, quasre, 561 
 
 no right of, where daughter not in service of parent, 561 
 
 when action may be maintained, 561 
 
 when not, 562 
 
 cannot be maintained by guardian of ward, 632 
 
 damages for injured feelings may be given, 560 
 
 damages for, may be given in action for breach of promise of marriage, 114 
 
 SEPARATE ESTATE, 
 
 definition of, 340 
 
 a creation of equity on behalf of married women, 342 
 
 traces of doctrine in time of Queen Elizabeth, 342 
 
 separate use involved in the doctrine of trusts, 341 
 
 an inroad in the common law theory of coverture, 342 
 
 separate use applicable to both real and personal property, 344 
 Jwio created 
 
 by ante-nuptial written contract with husband renouncing his marital 
 right, 345 
 
 wife must agree to the contract, 345 
 
 by post-nuptial contract with husband, 345 
 
 by gift of husband, 344, 345 
 
 by gift of stranger, 344 
 
 appointment of trustee not absolutely necessary to create, 344 
 
 husband held as trustee, if necessary, 344 
 
 what words sufficient to create, 346 
 
 what words insufficient, 347 
 
 intention to create must be clear, 346 
 
 meaning of term "independent of husband," 343 
 fffcctiof creation of 
 
 with respect to her, a married woman in equity a, feme sole, 248, 343 
 
 Digitized by Microsoft® 
 
INDEX. 993 
 
 SEPARATE ESTATE— co(ifin«c(7. 
 
 a capacity to hold property, 249, 343 
 
 to dispose inter vivos of her real estate, 249, 364 
 
 her vested personal estate, 349, 366 
 
 her reversionary personal estate, 249, 366 
 
 to dispose by will of her real and personal estate, 252, 368-372. (See 
 
 to contract with husband in respect of, 291. (See Contract.) 
 to contract with third persons in respect of, 280. (See Contract.) 
 duration nf 
 
 during coverture only, 343, 349 
 
 ambulatory nature of the separate use, 349 
 
 separate use revives on second marriage unless limited to particular 
 
 coverture, 349 
 or married woman renounces it, 349 
 
 bar power to renounce not affected by M. W. P. Act, 1882, 349, 350 
 statutory extension of 
 
 under Divorce Acts, 281, 282, 3S0-363. (See Judicial Separation; Protection 
 
 Order: Summary Jurisdiction {Married Women) Act, 1895.) 
 under 3J. TT'. P. Act, 1870, 354-356. (See M. W. P. Act, 1870.) 
 under M. W. P. Act, 1882 
 effect of Act. 
 
 no need of settlement to create, 345 
 no particular words necessary to create, 346 
 intervention of trustee no longer necessary, 344 
 i£ no trustee appointed legal estate vests in married woman, 344 
 now no practical distinction between equitable and statutory, 340 
 all real and personal property belonging to woman married after Dec. 31, 
 
 1882, or subsequently acquired by her, is her, 340, 357 
 all real and personal property acquired after above date by woman 
 
 married before, is her, 357 
 married woman capable of holding property and contracting as a feme 
 
 sole, 357 
 new presumption in contract against her, 283, 358, 425. (See Contract.) 
 free, necessary to validity of her contracts, 282, 286, 335, 391, 396. (See 
 
 Contract.) 
 complete power of disposition over, inter vivos unless restrained, i86, 192, 
 
 249, 357, 363-370 
 hj win, 250, 357, 370-372. (See WiU.) 
 on her deposits. (8se Deposit.) 
 on her investments. (See Investment.) 
 on her shares. {See Share.) 
 on her stock. {See Stock.) 
 
 restraint upon anticipation preserved by. (See Bestraint upon Anticipa- 
 tion. ) 
 effect of restraint upon. (See Bestraint upon Anticipation.) 
 remedies of married woman in respect of, 400-403. (See Bemedies of 
 
 Married Women.) 
 under 31. W. P. Act, 1893. 
 
 existence of free, not necessary to validity of her contracts, 289, 290, 336, 
 
 362. (See Contract.) 
 onus of proof of agency on married woman, 290 
 onus of proof of, no longer on her creditors, 290 
 a will of, speaks from death of testatrix, 363 
 married woman's power of disposition over, 
 is that of a. feme sole, 363 
 long recognition of in equity, 363 
 inter vivos 
 
 real estate .... 
 
 unfettered over equitable fee (unless restramed) without concurrence of 
 
 husband or any formalities, 186, 364 
 interference of husband contrary to the theory of the separate use, 364 
 her conveyance a direction to her trustees to convey or hold estate 
 
 according to the new trust, 365 
 unfettered over legal fee, 365 
 of legal fee acquired under M. W. P. Act, 1870, with proper formalities, 
 
 186, 189, 365 , . ^^ 
 
 her contingent interest in, 366 
 
 Digitized by Microsoft® 
 
994 INDEX. 
 
 SEPARATE 'ESTATE— continued. 
 
 power of, over lite interest, 366 
 
 full, under M. W. P. Act, 1882, 366 
 personal estate 
 
 that of a, feme so?e unless restrained, 202, 366 
 
 under M. W. P. Act, 1882, 367 
 
 her contingent interest in, 205, 367 
 
 may make gift of to her husband, 366. (See Oift.) 
 hy will, -^6^-372. (See Will.) 
 
 by execution of a power of appointment, 372-374, 394-396. (See Toner of 
 Appointment. ) 
 liability of married woman, in respect of 
 for her ante-nuptial and post-nuptial contracts, debts and torts 
 in equity 
 
 primarily liable for her ante-nuptial and post-nuptial contracts and debts, 
 280, 335 
 
 fiction as to the separate property, 280 
 
 onus of proof of free, on creditor, 281, 283 
 
 only free, possessed by her at date of liability, 281 
 
 contract presumed to be in respect of hnv, 281 
 
 on contract with express reference to, 281, 283 
 
 on contract with implied reference to, 281, 283 
 
 on her general engagements, 281, 283 
 
 none for ante-nuptial tort. (See Tort. ) 
 
 for her post-nuptial tort. (See Tort.) 
 under M. W. P. Act, 1882. (See Contract.) 
 
 increased, 283, 284 
 
 primary of, for ante-nuptial and post-nuptial liabilities, 283 
 
 new presumption in respect of, against her, 283 
 
 but must be reasonable, 287, 391 
 
 membership of a trading firm raises a presumption of, 320 
 
 need not be large in amount or of any particular description, 287, 391 
 
 when presumption not made against her. (See Restraint upon Anticipa- 
 tion. ) 
 
 limited to free separate property, 335. 336 n. (See Contract.) 
 
 after acquired property bound, 283, 285, 286, 358, 391 
 under M. W. P. Act, 1893, 
 
 presumption against her increased, 289 
 
 burden of proof of, at date of contract no longer on creditor, 290 
 
 after acquired, unfettered by restraint, 290, 392 
 
 effect of restraint preserved by, 290, 392 
 what property may he taken in execution. 
 
 corpus or income, 392 
 
 property now coming to her when discovert, 393 
 
 distinction between present and former law, 393 
 
 property subject to a general power of appointment, if executed, 320, 373, 
 374. 394-396- (See Power. ) 
 
 property must be free, 390 
 
 if subject to restraint not free, 391 
 
 unless restraint imposed by herself, 392 
 
 arrears of restrained property, not paid into her hands, not free, 380 
 how made chargeable, 
 
 formerly by declaration, 337 
 
 inquiry as to what she possesses and in whom vested, still necessan', 
 337 
 
 she may dispose of her property before judgment, 337. (See Injunction.)' 
 
 by appointment of receiver. (See Receiver ; Judgment.) 
 questions between Husband and Wife as to their property, 397-400. (See Dis- 
 putes between husband and Wife as to their Property. ) 
 remedies of married woman in respect of her property. (See Remedies.) 
 
 SEPARATE EXAMINATION. {Sep Acknowledgments to Bar Wife's Interests.) 
 
 SEPARATE USE. (See Separate Estate.) 
 
 what words sufficient to create, 346 
 
 what words insufficient, 347 
 
 ambulatory nature of, 349 
 
 specific creation of, no longer necessary, 346 
 
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INDEX. 99;-. 
 
 SEPARA.TION, 
 deed of 
 
 formerly held contra honos mores, 434 
 
 first recognition by common law courts, 435 
 
 then by equity courts, 435 
 
 unless clearly against public policy, 436 
 
 must provide for actual or immediate, 439-442 
 
 agreement for, formerly required intervention of a trustee, 436 
 
 not now requisite where husband and wife at arm's length, 437 
 
 no distinction between executed and executory agreement, 437 ' 
 
 exception, 437 
 
 consideration for, must be good and not illegal, 439, 440 
 
 persistent breaches of covenant in, will be restrained, 438 
 
 molestation, what is, 438 
 
 restraint by injunction of divorce proceedings not now a remedy, 439 
 
 ground for injunction an equitable defence, 439 
 
 covenants in, are not interdependent, 438 
 
 effect of conduct wholly inconsistent with covenants, 438 
 enforcement of, 
 
 notwithstanding trifling breaches of covenant, 440 
 
 specific performance of, 437, 439 
 
 unless contrary to law, 439 
 
 power of Divorce Court over, 441, 442, 444, 447. (See Divorce Court.) 
 
 no agreement that parties to, should live apart in chastity, 441 
 
 trusts of, not put an end to by judicial, 441 
 
 arrangement for prospective, bad, 442 
 
 where future, dependent on consent of third parties, whether deed valid, 
 qucBre, 442, 443 
 determination of, 
 
 by reconcilement and recohabitation, 443 
 
 when the trusts are temporary, 443 
 
 not when the trusts are permanent, 443-445 
 
 if permanent, they ccntinue during recohabitation, and on, revive, 443 
 
 " dum casta " clause not a " usual covenant " in, 444 
 
 effect of fraud on, 445 
 
 valuable consideration necessary to support, against creditor, 445 
 custody of children under, 445. (See Father ; Mother; Infants' Custoili/ Act 
 1873-) 
 
 SEPARATION ORDER, 
 
 by whom granted, 281, 350 
 
 effect of, 282, 350. {Si:e liiummary Jurisdiction {Married Women) Act, 1895. 
 
 SEQUESTRATION, 
 
 judgment against married woman enforced by, 432 
 
 SERVANT, 
 
 definition of, 821 
 
 relation of master and domestic, only discussed, 822 
 
 character of. (See Character of Servant.) 
 domestic, 
 
 who may be, 827-830 
 
 who is, 824 
 
 who is not, 824 
 
 Councils of Conciliation Act, 1867, does not apply to, 866 
 
 Employers' Liability Act, 1880, does not apply to, 869 
 
 when contracts of, will bind master, 876-878. (See Master.]/ 
 
 when not, 879, 880 
 
 holding of premises by, 840 
 
 discharge of, 837-840. (See Discharge of Servant.) 
 duties of, 
 
 to fulfil his engagement, 860 
 
 to obey all lawful orders, 85o, 868 
 rights of, 
 
 to be received into his employ, 862 
 
 to be paid agreed wages, 835, 864. (See Wages.) 
 
 to proper discharge, 865 ,„ ,, rr 7 , » 
 
 to be secured from injury, 869. (See Common Employmen'.) 
 
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996 INDEX. 
 
 S'ERYAt^T— continued. 
 
 his personal representatives under Lord Campbell's Act, 874 
 Uahility of, 
 civil, 
 on contract made on behalf of master, 890 
 none, where revocation of authority unknown to him, 891 
 on his own contract, 890 
 
 for tort committed on behalf of master, 868, 891 
 when committed contrary to master's order, 869 
 for wrongful conversion, 891 
 for joint fraud with master, 891 
 criminal, 892 
 offences by, 895-899. (See Burglary; JSmhezdement ; Larceny.) 
 legacies to, by master, 
 
 to be entitled to, must have given up his time exclusively to master, 825 
 
 when " indoor " to be disting;uished from " outdoor," 825 
 
 hired on usual terms entitled to, 825 
 
 at weekly wages not entitled, 825 
 
 whether, must be in testator's service at death depends on bequest, 826 
 
 SERVICE, 
 
 loss of, gist of action by parent for tort done to child, 557 
 
 where no loss of, can parent recover for incidental expenses, qiuere, 558 
 
 loss of, gist of action for seduction, 559. (See Seduction.) 
 
 SERVICE, CONTRACTS OF, 
 of infant, 
 
 as hirer, in the nature of a necessary, 753, 755, 830 
 
 may ratify, on majority, 765 
 
 as hired, valid unless manifestly to his prejudice, 752 
 
 primd facie beneficial and valid, 754 
 
 reasonable restrictions in, enforceable, 753, 755 
 
 made by ordinary hiring or deed of apprenticeship, 754. ' [Bqb Apprentice.) 
 
 not bound by inequitable, 753, 754 
 
 must disaffirm properly on majority, 768 
 
 when a new, will be inferred on majority, 768 
 
 may enlist either in army or navy, 756. (See Enlistment.) 
 ■of married woman, 
 
 as hirer, 827 
 
 as hired, 828 
 
 does not put an end to the matrimonial cohabitation, 829 
 
 marriage does not put an end to her, 829 ' 
 
 by lunatic as hirer, 830 
 duration of. {See Hiring and Service.) 
 termination of. (See Siring and Service.) 
 
 'SERVICE (PROCESS), 
 
 on infant defendant, what is sufBcient, 816 
 when joint necessary on husband and wife, 428 
 per.sonal, on putative father in bastardy proceedings, 579' 
 
 . SETTLED ESTATES ACT, 1877, 
 
 definition of a " settlement " under, 672 
 
 of a " settled estate " under, 672 
 
 power of court to authorize sale of settled estates under, 667 
 
 luarried woman may exercise powers under, 195 
 
 also tenant by the curtesy, 217 
 
 ■what may be sold, 667 
 
 leasing powers of trustees under, 672, 674 
 
 practice in putting act in motion, 671 
 
 application for appointment of guardian under, 610 
 
 facts to be proved on application, 611 
 
 SETTLED LAND ACTS, 1882, AND 1890, 
 
 powers of trustees under, to sell ward's lands, 668 
 
 trustees and tenant for life may sell heirlooms under, 669. (See 
 Heirlooms.) 
 
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INDEX. 997 
 
 SETTLED LAND ACTS, 1882 AND iSgo -continued. 
 powers of the tenant for life under, 668, 671 
 powers of the tenant for life increased under Act of 1882, 670 
 scope of the Act of 1882, 668 
 leasing under, 674-676. (See Lease. ) 
 management, 676 
 
 cutting timber, 682-684. (See Timber.) 
 working open mines, 677. (oee Jlines and Minerals.) 
 power of trustee to give receipts, 67S 
 who may be appointed trustee under, 671 
 who may not, 671 
 
 married woman may exercise powers under, jointly with husband, 183 
 when solely, 195 
 
 notwithstanding restraint upon anticipation, 195 
 tenant by the curtesy, 217 
 practice in putting the Acts in motion, 671 
 
 SETTLEMENT, 
 
 meaning of term under Bankruptcy Act, 1883, 139 
 
 under Settled Estates Act, 1877, 672 
 
 wife's equity to a, 123, 207. (See Bgui'i/ to a Settlement.) 
 marriage, 
 
 what is a, 121 
 
 objects of, 122 
 
 M. W. P. Act, 1882, does not render a, unnecessary, 122 
 
 intervention of trustees stUl requisite, 1 23 
 
 effect of Act on, 122, 125 
 
 any existing, at date of passing of the Act preserved, 123, 136 n, 359 
 
 who can make a, 124. (See Settlements of Infants {Marriage) ; Lunatic.) 
 
 operation of, 125 
 
 costs of, 125 
 ante-nuptial, or founded on consideration rf marriage, 
 
 inchoate or imperfect, 126. (See Marriage Articles.) 
 
 final in pursuance of articles, 127 
 
 final not in pursuance of articles, 127 
 post-nuptial, 
 
 binding for all purposes, 
 
 founded on marriage articles, 128 
 
 where valuable consideration has moved, 129 
 
 under M. W. P. Act, 1882, the consideration moving from husband or 
 wife must be pecuniary, 1 30 
 voluntary, 
 
 what is a, 130, 153 
 
 binding on settlor, and volanteers claiming under him, 130, 131 
 
 not binding as against credito s, 130, 153. (See Revocation and Setting 
 aside of Settlements. ) 
 
 how may be made valid, 131 
 
 of personal chattels to be registered as a bill of sale, 162 
 husband's interest under, 131, 132. (See Husband.) 
 covenants in, 
 
 by third person, when valid, 132 
 
 by husband, 132 
 
 by wife, 133 
 
 when enforced, 146 
 to settle after acquired property, 133-141 
 of wife 
 
 object of, 133 
 
 duration of, 137 
 
 effect of decree of judicial separation on, 137 
 
 who bound by, 133 
 
 covenant by husband alone does not bind wife's separate estate, 133 
 
 joint by husband and wife, wife formerly bound, 134 
 
 effect of M. W. P. Act, 1882, 135 
 
 when statutory separate property under the act bound by settlement 
 made before the Act, 360 
 
 husband ought not now to enter into joint, 136 
 
 effect of restraint upon anticipation on wife's, 136 
 
 Digitized by Microsoft® • 
 
998 INDEX. 
 
 SETTLEMENT— con«i7iM«d. 
 
 claim by married woman's trustee in bankruplcy of her life interest not 
 
 subject toa restraint is not an interference with her, within the meaning 
 
 of the M. W. P. Act, 1882, 320 
 wife's should prevail except where it would operate as a forfeiture of the 
 
 gift, 135 
 operation of, may be limited, 1 34 
 
 by minor wife, voidable, 134, 773. (See Settlements of Infants, Mar- 
 riage. ) 
 when, by wife subject to the bankruptcy laws, 140, 141 
 what property may he settled. 
 
 that in which wife has an absolute interest, 137 
 meaning of expression "should become entitled," 138 
 her property at date of marriage not affected by, 138 
 when reversionary or contingent interests affected by, 138. (See Rever- 
 sionary Property, Settlement of.) 
 when not, 138 
 of husband, 
 
 when upheld, 139 
 
 when bad against creditors and under Bankruptcy Act, 139 
 discharge of bankrupt husband discharge of liability under, quaere, 139 
 property settled on him to divest on bankruptcy or insolvency must divest 
 
 absolutely, 140 
 cannot so settle his own property on himself, 140 
 conistruction of, 
 
 effect to be given to the intention of the parties, if possible, 142, 143 
 in favour of children, 142 
 
 according to the law of the country intended to govern the contract, 
 142 
 enforcement of, 
 
 promises and agreements in consideration of marriage within the Statute 
 
 of Frauds, 143 
 promises, &c., need not be formal, 144 
 marriage alone not part performance of contract within the Statute of 
 
 Frauds, 144, 145 
 specific performance of marriage articles, 145 
 by husband, 146 
 by wife, 146 
 
 by children, whether as purchasers or volunteers, 147 
 by trustees, 146 
 by collaterals, when, 147 
 
 as a rule, remainders to collaterals are voluntary, 147 
 by issue of widow's former marriage, 148 
 when not by issue of widower's, 148 
 by illegitimate issue, when, 148 
 by issue of second marriage, 148 
 by volunteers as against settlor, 148, 149 
 by volunteers as against hondjide purchasers, when, 149, 150 
 covenants may be enforced on one side though those on the other are 
 
 unperformed, 146 
 but not by defaulting party, 147 
 absolute covenant in, on one side may be enforced though a contingent 
 
 one on the other is unperformed, 147 
 rectification of, 150-152. (See liectijication of Marriage Settlements; 
 
 Fraud; Mistake.) 
 revocation and setting-aside of. (See Itevocation and Setting-aside of 
 
 Settlements.) 
 variation of. (See Divorce Court, Jurisdiction of, over Settlements.) 
 where iinal, varied so as to accord with intention of settlor, 127 
 affected hy 13 Eliz. c. 5, 154-158. (See Bevocation and Setting-aside of 
 
 Settlements. ) 
 affected hy 27 Miz. c. 4. (See Ibid. ) 
 affected hy the Bankruptcy Act, 1883. (See Ibid ) 
 power of Divorce Court over. (See Divorce Court, Jurisdiction of.) 
 
 SETTLEMENT, POOR LAW. 
 
 legal of wife, the last legal of husband, 174 
 
 widow retains that of Ute husband till she acquires one for herself, 175 
 
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INDEX. 999 
 
 SETTLEMENT, POOR hAVf— continued. 
 
 effect of desertion by husband, 175 
 
 status of irremovability of widows, 175 
 
 of bastard child, that of mother till sixteen, 579 
 
 SETTLEMENTS OF INFANTS (MARRIAGE). 
 
 voidable, 124, 134, 773, 779 
 
 repudiation to be within reasonable time after majority, 771 
 
 not within Infants' Relief Act, 1874, 779 
 
 when both parties are under age, 776 
 
 when husband infant and wife adult, 775 
 
 when wife, infant, and husband adult, 771 
 of realty, 
 
 wife generally could not make a binding, 771 
 
 except where guilty oE fraud, 772 
 
 when wife bouud by, 772 
 of personalty, 
 
 of wife's non-separate, binding, 772 
 
 of her separate, voidable, 772 
 
 effect of M. W. P. Act, 1882, 772 
 
 wife bound by acquiescence, 773 
 
 her covenant in, voidable, 773 
 
 effect of restraint upon her right of election to be bound or not, 136, 385, 
 386, 774, 775. (See Election.) 
 under the Infants' i^'.tilement Act, 1855, 
 
 jurisdiction of Court of Chancery over, 776-779 
 
 binding when made with approbation of the Court, 124, 134, 745, 777, 796 
 
 is that of the infant, and not of the Court, 778 
 
 petition under, does not constitute infant a ward of Court, 777 
 
 at what age male and female infant may make, 777 
 
 infant dying under age, appointment void, 777 
 
 whether Court has power to sanction post-nuptial under whether infant 
 ward of Court or not, qtuere, 778, 779 
 
 practice in petitions under, 778 
 
 SET-OF. 
 
 none to debt owed by infant, 762 
 
 SHAREHOLDER, 
 infant, 
 
 may be, 713, 741 
 
 engagement voidable, 742, 766 
 
 member of company till repudiation, 742, 766 
 
 which must be unequivocal, 766 
 
 transfers to, voidable, 742 
 
 bound unless repudiation within reasonable time after majority, 742, 766, 
 767 
 
 may ratify by holding shares after majority, 766 
 
 his position when company a going concern, 742 
 
 when company wound up during infancy, transfer to, invalid, 743 
 
 difference between acquiescence of, and that of a contributory, 767 
 married woman, 
 
 capacity of, to be, in equity, 324 
 
 under M. W. P. Acts, 1870 and 1882, 265, 324 
 
 when company not bound to accept her as a, 324 
 
 may compel company by mandamus to register her title to shares, 324 
 
 her right to vote in respect of shares, 324 
 
 formerly not liable at law to be a contributory in respect of ante-nuptial 
 shares, 265 
 
 liable in equity as to her separate property, 265 
 
 husband formerly liable in respect of her ante-nuptial shares, 262, 265 
 
 limits of his liability, 262, 265 
 
 when not liable, 262, 266 
 
 he was formerly deemed to be a contributory in his own right, 262, 265 
 
 now no longer liable, 262, 266 
 
 except as to extent of assets received by him on marriage, 262, 266 
 
 she is solely liable in recpect of her shares, 262, 266 
 
 Digitized by Microsoft® 
 
1000 INDEX, 
 
 SHAKES, 
 
 contract to take, by infant in a company wound up before his maioritjr 
 
 invalid, 743 
 contract to take, by infant in a company wliich is not so wound up, valid 
 
 if acquiesced in by him after majority, 742 
 interest of married woman in her, 358 
 
 standing in her name primd facie her separate property, 206, 324, 358 
 her liability and that of husband on her. (See Hharelwldtr.) 
 
 SHOP HOURS ACT, 1892, 
 
 provisions of, as to young persons, 805 
 
 SOCAGE, 
 
 guardian in. (See Guardian in Socage.) 
 
 SOLICITOR, 
 
 to the Suitor's Fund, when appointed to infant defendant, 817. (See 
 
 Action, against Infants.) 
 costs of. (See Action; Costs; Guardian ad litem; Necessaries; Next 
 
 JPriend. ) 
 trustee, cannot charge for professional labour, unless authorized, 701 
 
 SPECIAL LICENCE. (See licence.) 
 
 SPECIFIC PERFORMANCE, 
 
 cannot be enforced by an infant, 733, 763 
 when decreed in favour of a married woman, 401 
 when decreed against her, 188, 289 
 
 no decree of, of covenant by donee of power of appointment, 397, 
 remedy of the covenantors, 397 
 
 of marriage articles, 145. (See Enforcement of Settlements.) 
 of separation deed, 437 
 
 marriage not a part performance of a parol contract in relation to marriage, 
 for purposes of, 144 
 
 SPENDTHRIFTS OR PRODIGI, 
 
 no guardianship over, in English law, 613 
 
 SPONSALIA PER VERBA DE FUTDRO CUM COPULA, 
 former effect of, in England, 13, j 7 
 effects of, in Scotland, 33 
 
 ■ difference between a mere promise, and one cum copvld, 33 
 action for declarator and adherence, 34 
 copula permitted on faith of promise of marriage, 34 
 promise and copula must both take place in Scotland, 34 
 two promises cum copulA not bigamy, 34 
 
 SPONSALIA PER VERBA DE PR^SENTI, 
 former effect of, in England, 13, 16 
 how contract constituted in Scotland, 29-31 
 effect of, in Scotland, 31 
 consent must be mutual and absolute, 32 
 may be verbally or in writing, 32 
 
 STAMP, 
 
 not required for an agreement for hiring and service, 833 
 but for deed or writing of apprenticeship, 845 
 
 STATUTE OF DISTRIBUTIONS. (See Distributions, Statute of.) 
 
 STATUTE OF FRAUDS. (See Frauds, Statute of.) 
 
 STEP CHILDREN, 
 
 liability of stepfather to support, 516 
 
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INDEX. 1001 
 
 STEPFATHER, 
 
 liability of, to support stepchild, 516 
 right of, to earnings of stepchild, 532 
 
 STOCK, 
 
 married womanprimd facie entitled to, standing in her sole name, 206, 
 
 294. 358 
 or in joint names of herself and third person other than husband, 358 
 transfer of, to married woman, 206, 358 
 transfer of, by husband to wife solely or jointly, a gift of, to her, 294. 
 
 SUBMISSION, 
 to arbitration, 
 
 not binding on infant, 725 
 
 by woman revoked by marriage before award, 242 
 
 SUITORS' FUND, ' 
 
 ofBcial solicitor to, when appointed guardian ad litem, 817 
 
 SUMMARY JURISDICTION, 
 
 courts of, have no power over disputes between master and domestic 
 servant, 866 
 
 SUMMARY JURISDICTION ACT, 1879, 
 punishment of infants under, 716 
 
 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895, 
 
 jurisdiction of court of summary jurisdiction to make orders in what 
 cases under, 255, 282, 448, 449 
 matrimonial offences hy husband under, 
 
 desertion, 255, 282, 352, 448 
 
 what is desertion, 449, 450 
 
 persistent cruelty, 255, 282, 352, 449 
 
 wilful neglect to maintain wife and children, 255, 282, 352, 449 
 
 cruelty causing wife to leave and live apart, 255, 282, 352, 449 
 
 husband must be convicted of, 352 
 orders under, 
 
 judicial separation, 353, 449 
 
 custody of children under sixteen, 449, 515 
 
 restoration of custody of child to father on subsequent adultery of 
 mother, 515 
 
 alimony not exceeding £2 per week, 255, 282, 353, 449 
 
 effect of, equivalent to decree of judicial separation, 282, 353 
 husband and wife deemed to live apart from date of order, 353 
 when wife's adultery disentitles her to order, 256, 353, 450 
 order discharged on resumption of cohabitation or subsequent adultery of 
 
 wife, 256, 353, 450, 515 
 right of husband and wife to apply to re-hear case, 256, 450 
 justices' jurisdiction to confirm, discharge, or vary order, 256, 451 
 justices may refuse to make order, 45 1 
 procedure under, 
 
 application by wife for order under, after husband's conviction, 353 
 
 application to vary or discharge order to be made to same court as 
 granted it, 353 
 
 appeal as to order of separation and maintenance to Probate and 
 Divorce Division, 354, 451 
 
 no appeal as to the conviction, 354 
 
 court by whom husband convicted becomes one of summary jurisdiction 
 under, 353 n 
 
 court may refer application to High Court, 354, 451 
 repea.1 of 41 Vict. c. 19, s. 4, and 49 & 50 Vict. c. 52 
 
 SUMMARY PROCEEDINGS, 
 
 between wife and husband, 397-400. (See Disputes Between Husband 
 
 and Wife as to their Property.) 
 wages of domestic servants cannot be recovered by, 866 
 
 SUPERINTENDENT REGISTRAR. {See Begistrar of Marriage.) 
 
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1002 INDEX. 
 
 SUPPLEMENTAL ACTION, 
 
 when necessary in suit to which an infant is a party, 8i8, 819 
 when unnecessary, 819 
 
 SURETY, 
 
 necessary in contract of apprenticeship, 756, 842. (See Jpprentice.) 
 wife's property lent to husband formerly regarded as only, for bis debts, 
 
 299 
 so where her real estate was mortgaged on his behalf, 194, 299. (See 
 
 Exoneration, Equity of.) 
 alteration effected by M. W. P. Act, 1882, 297, 298 
 
 SUERBNDER, 
 of a lease, 
 
 may be accepted by an infant, 727 
 
 under Settled Land Act, 1882, may be accepted by infant's guardian, 675 
 
 power of guardian on, 675 
 
 of copyhold land by infant, 740. (See Copyhold.) 
 
 SURROGATE, 
 
 by whom appointed, 95 
 
 for what purpose, 95 
 
 oath of office required of, 95 n 
 
 security for proper execution of office required of, 95 n 
 
 false statement before, indictable as a misdemeanour, 97 n 
 
 SURVIVORSHIP, 
 
 no presumption of, where husband and wife die by same act, 234, 252 
 onus of proof of, or of death lies on assertor, 234, 252 
 
 TALFOURD'S ACT, 1839. (See Infants' Custody Acts.) 
 
 TENANT IN COMMON, 
 
 when under M. W. P. Act, 1882, a gift to husband and wife makes each 
 a, 187 
 
 TENANT FOR LIFE, 
 infant, 
 
 must keep down interest on incumbrances, 679 
 
 must keep premises in repair, 680 
 
 may cut timber if unimpeachable for waste, 682 
 
 leasing powers of guardians of, 671-676. (See Guardian of the Estate; 
 
 Lease.) 
 under the Settled Estates Act, 1877, 672-674 
 under the Settled Land Acts, 1882 and l8go, 674-676 
 general powers of, 670 
 married woman, 
 
 husband's interest in lands of, 183 
 
 powers of, under Settled Lands Act, 1882, 183, 195. (See Settled Land 
 
 Act, 1882.) 
 when she may now exercise powers jointly with husband, 183 
 when solely, 195 
 notwithstanding restraint upon anticipation, 195 
 
 TENANT-IN-TAIL, 
 infant, 
 
 when guardian to be appointed to, for purposes of the Settled Estates 
 
 Act, 1877, 611 
 must keep down interest on incumbrances, 680 
 only as against the remainderman, 680 
 if charge paid off, no merger unless beneficial for him, 679 
 may cut timber, 682 
 
 right to insurance money in respect of property destroyed when not under 
 covenant to insure, 681 
 m arried woman, 
 
 disposition of lands by, 189 
 
 may enlarge her estate to one in fee, notwithstanding restraint upon 
 anticipation, 384 
 
 Digitized by Microsoft® 
 
INDEX. 1C03 
 
 TENTERDEN'S ACT, LORD, 
 
 ratification of infant's contract must te in writing, 761, 762 
 exception, 761, 762 
 
 TERMINATION, 
 
 of coverture, effect of. (See Coverture.) 
 of guardianship. (See Guardianship.) 
 
 TESTIMONIAL, 
 
 uttering a forged, an indictable offence, 858 
 
 THEFT. (See Larceny.) 
 
 •'THIRDS AT COMMON LAW." 
 expression inaccurate, 239 
 
 TIMBER, 
 
 cutting: of, belonging to infant, depends on the rule against the conversion 
 
 of property, 682 
 too much cutting is waste, 682 
 infant tenant in fee may cut, 682 
 so may tenant-in-tail, 682 
 
 and tenant for life if unimpeachable for waste, 682, 683 
 but may not commit "equitable " waste, 682 
 what he may cut if impeachable, 683 
 guardian may cut under Conveyancing Act, 1881, 667, 682 
 what are " timber like " trees, 683 
 
 TITHE COMMUTATION ACT, 1836. 
 power of guardian under, 685 
 
 TORT, 
 
 husband and wife cannot sue each other for personal, committed during 
 
 coverture, 168, 248, 401 
 even after divorce, 401 
 
 husband may not sue wife for, done to his property, 248 
 wife may sue husband for, done by him to her separate property, 248, 359, 
 
 401 
 and after divorce, 248 
 under M. W. P. Act, 1870, 331, 355 
 wife formerly had to prove special damage, 353 
 under Divorce Acts she could sue as a, feme sole, 334 
 former right of husband to vindicate ante-nnptiai or post-nuptial, done 
 
 to wife, 172 
 wife can now sue alone in respect of such, 172, 334 
 when husband now should join in such action, 173 
 ante-nuptial of wife, 
 liability of husband for, 
 
 at common law joint during coverture, 267 
 
 under M. W. P. Act, 1874, joint during coverture, but limited in amount, 
 
 268, 356 
 under M. W. P. Act, 1882, joint or sole, limited in amount but not to 
 
 coverture, 268, 271, 356, 359, 428 
 liability of wife for, 
 at common law, 270 
 separate estate not liable for, 271 
 under M. W. P. Act, 1874, 271 
 under M. W. P. Act, 1882, primd facie, 271 
 
 may be proceeded against jointly with husband or solely, 271, 359 
 post-nuptial of wife, 
 
 liability of husband for, 
 at common law, 269 
 must have been pure and simple, 269 
 none, if arising out of contract, unless wife his agent, 269 
 joint action against husband and wife, 269, 359 
 not diminished under M. W. P. Act, 1882, 269, 276, 428 
 
 Digitized by Microsoft® 
 
1004 INDEX. 
 
 TORT— continued. 
 
 differeAoe between, for wife's, committed by her in her sole or represent- 
 ative capacity, 327 
 liability of wife for, 
 at common law, 271, 272 
 of separate estate in equity, if committed in respect of her separate 
 
 property, 272. (See Separate Estate.) . . «. , 
 
 unless restrained, 272, 381, 385. (See Restraint upon Anticipation.) 
 under M. W. P. Act, 1882, sole or joint with husband, 272, 273 
 arises on dissolution of marriage, 272 
 as between parent and child. (See Parents.) 
 
 right of parent to vindicate, done to child. (See Parents.) 
 in the case of an infant. 
 liable for, 757 
 
 not liable for, if grounded in contract, 757 
 as between master and servant. (See Master.) 
 right of master to vindicate, done to servant, 862 
 
 liability of servant for, committed on behalf of master, 868, 891. (See 
 Servant. ) 
 
 TBADE, 
 
 guardian must not allow ward's property to remain in, 664, 689 
 
 his duty when he finds it there, 689 
 in the case of an infant. 
 
 not bound by his debts, 736 
 
 cannot be adjudicated bankrupt in respect of his debts, 736 
 
 except on fraudulent misrepresentation as to age, 846 
 separate, by a married woman. 
 
 when at common law she could carry on, 317 
 
 in equity could carry on, 317 
 
 under M, W. P. Act, 1870, her earnings in, remained separate property, 
 
 317 
 
 living apart is not necessary to, 317 
 husband and wife carrying on joint, 
 
 presumption wife is agent for husband, 317, 318 
 
 agency or not a question of fact, 317 
 under M. W. P. Act, 1882, 
 
 full capacity of, to carry on, 358 
 
 may be sued alone in respect of her debts, 320 
 
 liable to be made bankrupt in respect of, 318. (See Banlerupt.) 
 
 TRADESMAN. 
 
 when, supplies goods to married woman at his peril, 308 
 husband may give express notice to, not to trust wife, 308 
 not bound to inquire into circumstances of infant, 750 
 but supplies goods to him at his peril, 750 
 cannot recover by reason of mere ostentatious display, 751 
 
 TRANSFER. 
 
 by parent into name of child, 544, 545. (See Advancement.) 
 of shares to infant shareholder , 
 
 voidable where company a going concern at time of, 742 
 void, where company wound up during infancy, 743 
 company may avoid the, 742 
 to a married woman. {See J)eposit ; Investment; Shares; Stoclc.) 
 primd facie makes them seiarate property, 358 
 
 fraudulent, by a married woman of husband's moneys may be reclaimed 
 by him, 358 
 
 TRENT, COUNCIL OF. 
 
 validity of decrees of, recognized in Ireland, 24, 48 
 not recognized in Scotland, 24 
 
 TRESPASS, 
 
 in the case of guardian and ward, 
 
 ward has action for, in respect of waste by guardian, 627 
 
 action for, by guardian in socage, 591 
 
 by one guardian against am-ther for forcible removal of ward, 585 
 
 Digitized by Microsoft® 
 
INDEX. 1005 
 
 TRESPASS— con«t»uea!. 
 
 in the case of husband and wife, 
 
 when husband liable to action for, when entering the land of another 
 
 170 
 wife may bring action for, against husband for entering upon her 
 separate property, 359, 402, 425 
 in the case of an infant, 
 liable for, 757 
 may bring action for personal, 801 
 
 TRIENNIAL COHABITATION, 
 rule of, why requisite, 65 
 
 not required where impotency clearly established, 65 
 need not be uninterrupted, 65 
 mere delay, if sincere no bar to suit for nullity, 66 
 
 TROVER, 
 
 infant liable for, 757 
 
 servant liable for, on behalf of master, 891 
 
 TRUCK ACT, THE, 
 
 does not apply to domestic servants, 864 
 
 TRUST, 
 
 husband's concurrence no longer necessary to wife's acceptance of, 325 
 
 difEerence between executory and executed, 141 
 
 resulting. (See Besulting Trust) 
 
 liability of married woman for her breaches of. (See Breach of Trust.) 
 
 liability of husband for wife's breaches of. (See Breach of Trust.) 
 
 breach of, concurrence in by married woman. (See Breach of Trust.) 
 
 a, formerly necessary to the creation of separate estate. (See Separate 
 
 Estate; Trustee.) 
 fund, when ordered to be paid into court by guardian or trustee, 691 
 
 TRUSTEE, 
 
 formerly necessary for the creation of separate estate, 341, 344 
 
 husband made, for wife if necessary, 344 
 
 intervention of, under M. W. P. Act, 1882, no longer necessary, 344 
 
 in the case of a marriage settlement still practically necessary, 123 
 
 cannot enforce covenants in settlement, 146 
 
 formerly necessary to perfect gifts of realty between husband and wife, 
 
 292 
 but not gifts of chattels, 293 
 appointment of, for moneys to arise from a policy of insurance under 
 
 M.W. P. Act, 1882, 322, 323 
 appointment of, under Conveyancing and Law of Property Act, 1881, 323 
 of married woman, 
 
 conveyance of her equitable fee inter vivos was a direction to her, 365 
 a testamentary disposition of her equitable fee was a like direction to 
 
 her, 368 
 should be joined as a party, where payment out of her estate is sought, 
 
 433 
 may be made party to an action to charge her estate, 337 
 but need not be joined when a mere charge is sought, 337, 387, 433 
 or where application for a receiver is made, 338 
 order cannot be made against a, unless before the Court, 433 
 order enforced by appointment of receiver, 433. (See Beceiver ) 
 not superseded by the appointment of receiver, 338, 433 
 breach of, trust by. (See Breach of Trust.) 
 duty of, to protect his cestui que trust, 387 
 married woman as, 
 
 capacity to be, at common law, 325 
 
 but husband's concurrence necessary, 325 
 
 reasons for concurrence, 325 
 
 disclaimer of husband was disclaimer of, 325 
 
 may be, now without husband's concurrence, 325 
 
 whether solely or jointly, 325 
 
 Digitized by Microsoft® 
 
1006 INDEX. 
 
 TWJSTE^— continued. 
 
 whether necessary to her alienation of the legal estate of the trast 
 property, qutere, 326, 327 
 
 her powers as, 325, 326 
 
 her liability for her breaches of trust, 327. (See Breach of Trust. ) 
 
 may be sued jointly or solely as a, feme sole, 358, 359, 361 
 
 may transfer property as a. feme sole, 325 
 hare, 
 
 meaning of term, 326 n 
 
 conveyance of married woman as, 326 
 powers of, over cestui que trust' s property , 
 as to maintenance, 
 
 under Lord Cranworth's Act, and Conveyancing and Law of Property 
 Act, 1881. (See Guardian^- Maivienance.) 
 as to advancement, 653-657, (See Advancement.) 
 
 receipt of ward's money by co-trustees, 664 
 as to investment hy. {Bee Investment; Trade.) 
 as to sale hy. (See Sale.) 
 as to leases hy. (See Guardian of the Estate ; Lease.) 
 
 under the Settled Land Acts, 1882 and 1890. (See Settled Land Acts, 
 1882 and 1890.) 
 
 solicitor of the tenant for life ought not to be, under the Act, 671 
 
 receipts of, under the Act, 678 
 
 cannot as a rule purchase from cestui que trust, 661 
 
 when he may, 661 
 
 control of the Court over. (See the various Guardians.) 
 
 protection of, generally and individually, 679 
 
 reimbursement of, 679 
 
 when charged with interest, 690 
 
 position of, gratuitous and honorary, 700 
 
 release of, 698. (See Release.) 
 
 infant ought not to be appointed, 714 
 
 TRUSTEE ACTS, 
 j8jo, 
 
 interest of persons unborn or not sui juris dealt with under, 667 
 powers of the Court under, in dealing with infant's property, 729-731 
 
 effect of, on restraint upon anticipation where married woman instigates 
 a breach of trust, 387. (See Breach of Trust. ) 
 
 TRUSTEE RELIEF ACT, 
 
 payment into court under, makes infant a ward of Coprt, 782 
 
 UNCONSCIONABLE BARGAINS. (See Catching Bargains.) 
 when set aside, 548-550 
 grounds for setting aside, 548-550 
 
 UNDUE INFLUENCE, 
 
 what is, 535 
 as between guardian and ward, 
 
 when presumed, 705, 709 
 
 when not presumed, 706 
 
 guardian must not use influence to obtain beneflts, 705 
 
 ward may make gift to guardian, 705 
 
 gifts and transactions between, after ward has reached majority, 706 
 
 when set aside, 706, 707 
 
 continuing influence, 710 
 
 where influence of guardian removed, transactions maintained, 706, 710 
 
 ward may recompense guardian after age, 707 
 as between husband and wife, 
 
 on part of husband renders gift from wife invalid, 295 
 
 she is not bound by his dealings with her property on proof of his, 399 
 as between parent and child, 
 
 not necessarily presumed, 537. (See Family Arrangement.) 
 
 when presumed, 535, 536, 709 
 
 when not, 535, 536 
 
 Digitized by Microsoft® 
 
INDEX. 1007 
 
 UNDUE INFLUENCE— continueci. 
 
 transactions tainted by, may be set aside as against third persons, 537, 
 
 538 
 mere advantage of the parent not a presumption of, 536 
 may be confirmed by acquiescence, &c., on part of child, 538 
 interference of the Court, on what grounds, 536 
 will be inferred in case of persons in hco parentis, 537 
 what facts usually taken into consideration, 537 
 
 UNITY, 
 
 of husband and wife, 
 
 theory of, at common law, 167 
 
 how modified by M. W. P. Act, 1882, 168, 360, 361 
 
 USE AND OCCUPATION, 
 
 action for, does not generally lie against infant, 739 
 
 exception, 739 
 
 when infant may bring action for, 738 
 
 UTERO-GESTATION, 
 
 no fixed period of, in English law, 483 
 
 VAGRANCY ACT, 
 
 when husband punishable under, 255 
 
 wife not an admissible witness against husband when charged under 244 
 
 VARIATION, 
 
 of settlements, 
 
 where final, varied so as to accord with intention of settlor, 127 
 power of the Divorce Court over. (See Divorce Court, Jurisdiction of, over 
 Settlements. ) 
 
 VOID, 
 
 acts of infants, 
 
 what are, 725, 726 
 
 cannot be ratified, 721, 723 
 
 may be set aside during minority, 726 
 
 " VOID " AND " VOIDABLE," 
 in the case of infants, 
 
 distinction between, 721 
 
 " void " often means "not enforceable against," 722 
 
 " voidable " includes valid, 726 
 
 all non-prejudicial acts are valid though voidable, 724, 725, 726, 727 
 
 VOLENTI NON FIT INJURIA, 
 
 when principle of maxim applies to relations of master and domestic 
 servant, 871 
 
 VOLUNTARY SETTLEMENTS, 
 what are, 130, 153 
 
 when set aside. (See Revocation and Setting aside of Settlements. ) 
 of personal chattels to be registered as bills of sale, 162 
 
 WAGES, 
 
 I, 
 
 lawful, of married woman belong to her, 202, 355, 357, 829 
 payment of, to her a good discharge, 829 
 what they are, 864 
 
 when servant must rely on a quantum meruit, 840, 847, 863 
 duty of master to pay agreed, 863 
 
 payment of, must be stipulated for by express or implied contract, 863 
 when contract to pay, not inferred, 863 
 promise to pay a gratuity unless as, no ground of action, 864 
 additional for additional services, when and when not, 864 
 Truck Act does not apply to, of domestic servants, 864 
 payment of a month's, equivalent to a month's notice of discharge of 
 domestic servant, 831, 832 
 
 Digitized by Microsoft® 
 
1008 INDEX. 
 
 WAGES— contimted. 
 
 period for payment of, not a necessary test of duration of hiring, 832 
 
 when paid weekly, hiring weekly, 832 
 
 servant wrongfully leaving, or rightly discharged, forfeits current, 832, 
 
 839, 86s 
 servant entitled to, up to master's death, 835 
 priority of, on bankruptcy of master, 864 
 when presumed to have been paid, 864 
 recovery of, 855 
 
 cannot be summarily recovered, 866 
 infant may sue for, 733, 830 
 are within the Statutes of Limitations, 864 
 board, 865. {See Board Wages.) 
 
 whether father entitled to child's, 531. (See Earnings.) 
 infant hirer liable for, 836 
 
 WABD. (See the various ffMarfZiares.) 
 
 domicil of, cannot be changed by guardian, 631 
 
 remedies of, against guardian. (See Guardian. ) 
 
 protection of, after attaining twenty-one, 699 
 
 reward of guardian by, immediately on attaining twenty-one viewed 
 
 with .suspicion, 699 
 when accounts between guardian and, opened, 699, 700. (See Account.) 
 election of. (See Election.) 
 
 acquiescence of, after attaining majority. (See Acquiescence.) 
 gifts from, to guardian, when set aside, 705-710. (See Gifts ; Undue 
 
 Influence.) 
 
 WARD OF COURT 
 
 jurisdiction of the Court of Chancery, 
 origin of, 501, 602, 780, 781 
 wardship of infants assigned exclusively to, 781 
 its general, 785 
 
 every British subject a potential, 784 
 
 father, mother, or other guardian superseded, if necessary, 785 
 orders of Court must be obeyed, 786 
 access of suitor to, prohibited, 787 
 over secular education of, 617 
 over religious education of, 617 
 over residence of, 617, 798 
 over maintenance of, 617. (See Maintenance.) 
 how constituted, 
 
 application to appoint guardian, 88, 499, 604 
 
 action begun in the interests of infant, 781 
 
 how begun, 782 
 
 by whom, 782 
 
 order of Court appointing a guardian, 782 
 
 payment of money in wMch infant interested under Trustee Belief Act, 
 
 782 
 order allowing maintenance out of fund in court, 782 
 by payment into court of moneys to infant's separate account, 782 
 effect of infant being made, 783 
 tohat does, not constitute, 
 
 Court does not generally act unless infant has property to be adminis- 
 tered, 501, 602, 783 
 small amount sufficient, 784 
 
 property not necessary to exercise of protective jurisdiction, 602, 784 
 marriage of, 
 control of Court over, 618, 776, 786-791 
 
 when security required of guardian of female ward, 618 
 
 guardian of, must report any contemplated marriage, 635 
 
 consent of guardian does not prevent marriage without leave from being 
 
 a contempt, 635 
 without leave, a contempt, 787. (See Contempt of Court.) 
 an attempted, also a contempt, 787 
 what is a suitable, 786 
 
 any person may inform Court of intended, 788 
 jurisdiction of Court not ousted by lapse of time, 788 
 
 Digitized by Microsoft® 
 
INDEX. 1009 
 
 WARD OF COVRT—continued. 
 
 action of court, when of doubtful validity, 788 
 marriage settlement of 
 jurisdiction of court over 
 
 validity of infant's derived from Infants' Settlement Act, 1855, 731, 791 
 
 marriage of, with leave, how court guided, 791 
 
 marriage of, after attaining majority, 792 
 
 delay till after majority does not oust, 793 
 
 to attempt to delay a coutempt, 794 
 
 not ousted by lapse of time, 793 
 
 where not agreed upon before, and marriage after majority of, 794 
 
 where marriage in contempt, 795 
 
 where contempt gross, 795 
 
 where venial, 795 
 
 whether any, to sanction a post-nuptial, under Infants' Settlement Act, 
 1855, guave, 779, 795 
 
 even without a petition, 778 
 taking, out of the jurisdiction 
 
 not generally permitted, 505, 617, 796 
 
 without leave a serious contempt, 505, 617, 797 
 
 privilege of Parliament will not protect contemner, 505 
 
 permitted, if for benefit of, 506, 797 
 
 good grounds for, 797, 798 
 
 except where infant made a, to prevent removal, 798 
 
 court must be informed of the whereabouts of the, 797 
 
 disclosure of the residence of, insisted on, 798, 799 
 
 WARRANT OF ATTORNEY, (^ee Attorney.) 
 
 WASTE, 
 
 dowager liable for, 222 
 husband liable for, of wife's lauds, 183 
 in the case of an infant 
 
 action of abolished, 627 
 
 action for trespass substituted, 627 
 
 " equitable," 682 
 
 no right to commit, unless authorized, 682 
 
 cutting of timber by tenant for life, 682-684. (See Timber. ) 
 
 guardian must not commit, of ward's lands, 662 
 
 when guardian personally liable, 682 
 
 WEDDING PRESENTS, 
 
 to wife, primd facie, her separate property, 407 
 liable to be taken in execution for her liabilities, 407 
 
 WIDOW, 
 
 as such not next-of-kin to husband under Statute of Distributions, 238 
 right of, of childless and intestate husband under Intestates' Estates 
 Act, 1890, 234, 239, 240 
 
 WIFE, 
 
 in early times deemed little more than a chattel of husband, 2 
 
 right of, to cohabit with husband, 170 
 
 if house of, the matrimonial domioil, cannot turn husband out, 401 
 
 cannot acquire full separate domicil, 167, 473. (See Domicil, ) 
 
 takes the legal settlement of husband, 174 
 
 control and custody of, by husband. (See Husband.) 
 
 where entitled to her writ of habeas corpus, 170 
 
 separate existence of husband and, recognized, 168, 176, 428. (See 
 
 Separate Estate.) 
 effect of M. W. P. Act, 1882, on her separate existence as to property, 168 
 husband and, do not hold their property as partners, 1 76 
 may justify for killing one who threatens husband's life, 170 
 her rights under Lord Campbell's Act, 171. (See Campbell's Act, Lord.) 
 such rights lost by her adultery, 172 
 when joint action by husband and, necessary to vindicate tort done to 
 
 her, 173 
 
 Digitized by Microsoft® 
 
1010 INDEX. 
 
 WIFE— continued. 
 
 coercion of husband a defence for, in the lesser crimes, 173. (See 
 
 Criminal Law. ) 
 not responsible for husband's breach of duty, 174 
 cannot sue husband for personal tort during coverture, 168 
 even after dissolution of marriage, 401 
 
 desertion and prostitution of, disentitles her to support by husband, 255 
 liabilities of, 
 
 to support huai and and family. (See Child; Mother; Parents.) 
 husband, 256 
 
 children, under the Poor Laws, 256 
 under M. W. P. Act, 1870, 256 
 under M. W. P. Act, 1882, 257 
 under the Divorce Acts, when the guilty party, 164 
 to be prosecuted by husband for larceny of bis property, 247, 403. (See 
 
 Criminal Law ; Larceny.) 
 to bury dead husband, 276 
 
 though an infant, to pay for his funeral expenses, 276 , 
 
 mutual incapacities of husband and, 
 
 to give evidence for and against each other in criminal matters, 243. 
 
 (See Evidence.) 
 to give evidence of non-access so as to bastardize issue, 477, 478 
 to steal from one another, 246, 402, 403. (See Criminal Law ; Larceny. ) 
 admissions by, falling within scope of her authority, bind husband, 246 
 ante-nuptial acts of, revoked hy marriage, 
 will, 241, 251 
 warrant of attorney, 242 
 submission to arbitration, 242 
 
 obligations and contraots-between husband and, as a rule, 242 
 exceptions to rule, 242, 243 
 
 validity of such preserved by M. W. P. Act, 1882, 243 
 Interest of, in her own realty. (See Beal JSJstate. ) 
 interest of, in her husband's realty. (See Dower.) 
 interest of, in her own chattels real. (See Chattels Seal.) 
 interest of, in her husband's personalty. (See Distributions, Statute of.) 
 contracts, gifts and loans between husband and. (See Contract; Oifts ; 
 Loans. ) 
 covenants by, in a marriage settlement. (See Settlement ; Covenant to 
 
 settle after-acquired Property.) 
 power of disposition over her property. (See Separate Estate ; Will, ) 
 remedies of, against husband. (See Remedies if Married Women.) 
 disputes between, and husband. ,(See Disputes between Husband and 
 Wife.) 
 
 "WILL, 
 
 of unmarried man revoked by marriage, 242 
 
 of single woman revoked by marriage, 241, 251 
 of infant. 
 
 not valid, either of real or personal property, 665, 714 
 
 of personal property, formerly valid, qucere, 665, 714 
 
 effect of incapacity to make, on the rule against conversion of his 
 property, 665 
 of married woman 
 at common law. 
 
 incapacity to make, 250 
 
 consent of husband to, necessary, 251 
 
 republication of, necessary, if she survived husband, 251 
 
 republication of, not necessary under M. W. P. Act, 1893, 251 
 of real estate. 
 
 Wills Act, 1837, did not confer upon her any capacity to make, 250 
 
 valid, if made in exercise of a power, 252 
 
 or where husband civiliter mortuus, 252 
 of personal estate. 
 
 incapacity to make, 250, 369 
 
 incapacity not statutory, 250, 369 
 
 exceptions, 369 
 
 valid if made with husband's consent, 251 
 
 husband's assent to probate necessary, 251 
 
 Digitized by Microsoft® 
 
INDEX. 1011 
 
 i \ 
 WILL — continued. 
 
 how assent proved, 251 
 
 republication of, necessary, if she svirvived husband, 251, 370 
 
 republication of, not necessary under M, W. P. Act, 1893, 251, 371 
 
 affected by M. W. P. Act, 1893, speaks as from her death, 251, 363, 371 
 
 valid, if made in exercise of a power, 252 
 
 valid, if of property held by her in a representative capacity, 251, 252, 
 
 .369 
 in equity 
 
 of real estate. 
 
 capacity to make, of separate estate, 252, 369, 370 
 her trustees hold legal estate in trust for her devisees, 368 
 statutory power of making, 252, 369, 370 
 full power of making, under M. W. P. Act, 1882, 250, 370 
 save as to devises afiected by the ^Mortmain Act, 370 
 of personal estate. 
 
 capacity to make, of separate estate, 252, 369, 370 
 husband's assent to, unnecessary, 369 
 
 fuU capacity to make, conferred by M. W. P. Act, 1882, 250, 369, 370 
 husband's assent to probate of, no longer necessary, 251, 370 
 usual course of administration under her, followed, 372 
 grant of probate of, 371. (See Probate.) 
 under M. W. P. Act, 1893. 
 
 speaks as from her death, 251, 363, 371 
 
 re-execution or republication of, no longer necessary after husband's 
 death, 251, 363, 371 
 
 WILLS ACT, 1837, 
 
 infant cannot make a will under, 665, 714 
 
 did not confer on married woman any testamentary capacity, 251, 368 
 no lapse of testamentary gift to child or other issue dying in testator's 
 lifetime under, 554 
 
 WITNESS. (See Mvidence.) 
 
 WRONGFUL DISCHAEGE, 
 
 remedy of servant on, 839 
 measure of damages on, 840 
 
 Printed by Ballantyne, Hanson & Co. 
 London and Edinhiirgh 
 
 Digitized by Microsoft® 
 
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 Scott 32 
 
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 Walker and Elgood 18 
 
 ADMINISTRATORS— 
 
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 Browne 19 
 
 CONSTABLES— 
 
 5c« POLICE GUIDE. 
 
 CONSTITUTIONAL LAW AND 
 HISTORY— 
 
 Forsyth 14 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CONSULAR JURISDICTION— 
 
 Tanring 42 
 
 CONVEYANCING— 
 
 Copinger, Title Deeds .... 45 
 Copinger, Precedents in ... 40 
 Deane, Principles of 23 
 
 COPYRIGHT— 
 
 Copinger 45 
 
 CORPORATIONS— 
 
 Brice 16 
 
 Browne 19 
 
 COSTS, Crown Office — 
 
 Short 41 
 
 COVENANTS FOR TITLE— 
 
 Copinger 45 
 
 CREW OF A SHIP— 
 
 Kay 17 
 
 CRIMINAL LAW— 
 
 Copinger 42 
 
 Harris 27 
 
 CROWN LAW— 
 
 Forsyth 14 
 
 Hall 30 
 
 Kelyng 35 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CROWN OFFICE RULES— 
 
 Short 10 
 
 CROWN PRACTICE— 
 
 Corner 10 
 
 Short and Mellor 10 
 
 CUSTOM AND USAGE— 
 
 Browne 19 
 
 Mayne ....... .38 
 
 DAMAGES— 
 
 Mayne ■ . •fi 
 
 DICTIONARIES-- 
 
 Brown 26 
 
 Digitized by Microsoft® 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF ^UBiEGT^-continued. 
 
 DIGESTS— PAGE 
 
 Law Magazine Quarterly Digest . 37 
 Menzies' Digest of Cape Reports . 38 
 
 DISCOVERY— Peile 7 
 
 DIVORCE— Harrison 23 
 
 DOMESTIC RELATIONS— 
 
 Eversley 9 
 
 DOMICIL— ^■^e PRIVATE INTER- 
 NATIONAL LAW. 
 
 DUTCH LAW 38 
 
 ECCLESIASTICAL LAW— 
 
 Brice 9 
 
 Smith 23 
 
 EDUCATION ACTS— 
 
 See MAGISTERIAL LAW. 
 
 ELECTION LAW and PETITIONS— 
 
 Hardcastle 33 
 
 O'Malley and Hardcastle ... 33 
 Seager 47 
 
 EQUITY- 
 
 Blyth 22 
 
 Choyce Cases 35 
 
 Pemberton 32 
 
 Snell 22 
 
 Story 43 
 
 Williams 7 
 
 EVIDENCE— 
 
 Phipson 20 
 
 EXAMINATION OF STUDENTS— 
 Bar Examination Journal ... 39 
 
 Indermaur 24 and 25 
 
 Intermediate LL.B 21 
 
 EXECUTORS— 
 
 Walker and Elgood 6 
 
 EXTRADITION— 
 
 Clarke 45 
 
 See MAGISTERIAL LAW. 
 
 FACTORIES— 
 
 See MAGISTERIAL LAW. 
 
 FISHERIES— 
 
 See MAGISTERIAL LAW. 
 
 FIXTURES— Brown 33 
 
 FOREIGN LAW— 
 
 Argles 32 
 
 Dutch Law 38 
 
 Foote 36 
 
 Pavitt 32 
 
 FORESHORE— 
 
 Moore 3° 
 
 FORGERY— i'^e MAGISTERIAL LAW. 
 
 FRAUDULENT CONVEYANCES— 
 May 29 
 
 GAIUS INSTITUTES- 
 
 Harris 2C 
 
 GAME LAWS— 
 
 See MAGISTERIAL LAW. 
 
 GUARDIAN AND WARD— 
 
 Eversley 9 
 
 HACKNEY CARRIAGES— 
 See MAGISTERIAL LAW. 
 
 HINDU LAW— 
 
 Coghlan 28 
 
 Cunningham 38 and 42 
 
 Mayne 38 
 
 HISTORY— 
 
 Taswell-Langmead 21 
 
 HUSBAND AND WIFE— 
 
 Eversley 9 
 
 INDEX TO PRECEDENTS— 
 
 Copinger 40 
 
 INFANTS— 
 
 Eversley 9 
 
 Simpson 43 
 
 INJUNCTIONS— 
 
 Joyce 44 
 
 INSTITUTE OF THE LAW— 
 
 Brown's Law Dictionary ... 26 
 INSURANCE— 
 
 Porter 6 
 
 INTERNATIONAL LAW— 
 
 Clarke 45 
 
 Cobbett 43 
 
 Foote 36 
 
 Law Magazine 37 
 
 INTERROGATORIES— 
 
 Peile 7 
 
 INTOXICATING LIQUORS— 
 
 See MAGISTERIAL LAW. 
 JOINT STOCK COMPANIES— 
 
 See COMPANIES. 
 JUDGMENTS AND ORDERS — 
 
 Pemberton 18 
 
 JUDICATURE ACTS— 
 
 Cunningham and Mattinson . . 7 
 
 Indermaur 25 
 
 Kelke 6 
 
 JURISPRUDENCE— 
 
 Forsyth 14 
 
 Salmond 13 
 
 JUSTINIAN'S INSTITUTES— 
 
 Campbell 47 
 
 Harris 20 
 
 LANDLORD AND TENANT— 
 
 Foa II 
 
 LANDS CLAUSES CONSOLIDA- 
 TION ACT— 
 
 Lloyd 13 
 
 LATIN MAXIMS 28 
 
 LAW DICTIONARY— 
 
 Brown 26 
 
 LAW MAGAZINE and REVIEW. 37 
 
 LEADING CASES— 
 
 Common Law 25 
 
 Constitutional Law . ... 28 
 
 Equity and Conveyancing ... 25 
 
 Hindu Law 28 
 
 International Law 43 
 
 LEADING STATUTES - 
 
 Thomas 28 
 
 Digitized by Microsoft® 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-^<'«'»»««<^- 
 
 PAGE 
 
 LEASES— 
 
 Copinger 45 
 
 LEGACY AND SUCCESSION— 
 
 Hanson. 10 
 
 LEGITIMACY AND MARRIAGE— 
 
 See. PRIVATE INTERNA- 
 TIONAL LAW. 
 LICENSES— 5«e MAGISTERIAL LAW. 
 LIFE ASSURANCE— 
 
 Buckley 17 
 
 Reilly 29 
 
 LIMITATION OF ACTIONS— 
 
 Banning 42 
 
 LUNACY— 
 
 Williams 7 
 
 MAGISTERIAL LAW— 
 
 Greenwood and Martin .... 46 
 MAINTENANCE AND DESERTION. 
 
 Martin 7 
 
 MARRIAGE and LEGITIMACY— 
 
 Foote 36 
 
 MARRIED WOMEN'S PRO- 
 PERTY ACTS— 
 
 Brown's Edition of Griffith . . 40 
 MASTER AND SERVANT- 
 
 Eversley 9 
 
 See MAGISTERIAL LAW. 
 ,, SHIPMASTERS & SEAMEN. 
 MERCANTILE LAW 32 
 
 Campbell 9 
 
 Duncan 33 
 
 Hurst and Cecil 11 
 
 Slater 7 
 
 Set SHIPMASTERS. 
 „ STOPPAGE IN TRANSITU. 
 MERCHANDISE MARKS— 
 
 Daniel 42 
 
 MINES— 
 
 Harris 47 
 
 See MAGISTERIAL LAW. 
 MORTMAIN— 
 
 See CHARITABLE TRUSTS. 
 NATIONALITY— A« PRIVATE IN- 
 TERNATIONAL LAW, 
 NEGLIGENCE— 
 
 Seven 8 
 
 Campbell 40 
 
 NEGOTIABLE INSTRUMENTS— 
 
 Willis 14 
 
 NEWSPAPER LIBEL— 
 
 Elliott 14 
 
 OBLIGATIONS— 
 
 Brown's Savigny 20 
 
 PARENT AND CHILD— 
 
 Eversley ........ 9 
 
 PARLIAMENT— 
 
 TaswellLangmead ..... 21 
 
 Thomas 28 
 
 PAGE 
 
 PARTITION— 
 
 Walker 43 
 
 PASSENGERS— 
 
 See MAGISTERIAL LAW. 
 „ RAILWAY LAW. 
 PASSENGERS AT SEA— 
 
 Kay 17 
 
 PATENTS— 
 
 Daniel 4"! 
 
 Frost 12 
 
 PAWNBROKERS— 
 
 See MAGISTERIAL LAW. 
 PETITIONS IN CHANCERY AND 
 LUNACY— 
 
 Williams 7 
 
 PILOTS— 
 
 Kay 17 
 
 POLICE GUIDE— 
 
 Greenwood and Martin .... 46 
 POLLUTION OF RIVERS— 
 
 Higgins 30 
 
 PRACTICE BOOKS— 
 
 Bankruptcy 15 
 
 Companies Law .... 29 and 39 
 
 Compensation 13 
 
 Compulsory Purchase . . . . 19 
 
 Conveyancing 45 
 
 Damages 31 
 
 Ecclesiastical Law 9 
 
 Election Petitions 33 
 
 Equity 7) 2Z and 32 
 
 Injunctions 44 
 
 Magisterial 46 
 
 Pleading, Precedents of . . . 7 
 
 Railways 14 
 
 Railway Commission . . . , 19 
 
 Rating .19 
 
 Supreme Court of Judicature . . 25 
 
 PRACTICE STATUTES, ORDERS 
 AND RULES— 
 
 Emden ii 
 
 PRECEDENTS OF PLEADING— 
 
 Cunningham and Mattinson . , 7 
 
 Mattinson and Macaskie ... 7 
 
 PRIMOGENITURE— 
 
 Lloyd 13 
 
 PRINCIPLES— 
 
 Brice (Corporations) 16 
 
 Browne (Rating) 19 
 
 Deane (Conveyancing) . . . . 2j 
 
 Harris (Criminal Law) .... 27 
 
 Houston (Mercantile) .... 32 
 
 Indermaur (Common Law) . . 24 
 
 Joyce (Injunctions) 44 
 
 Ringwood (Bankruptcy) . . . 15 
 
 Snell (Equity) 22 
 
 PRIVATE INTERNATIONAL LAW-- 
 
 Foote ...,,.,.. 3O 
 
 Digitized by Microsoft® 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF ^\JBiE.Q,TS—<:o»tinuecl. 
 
 PROBATE— 
 
 Hanson lo 
 
 Harrison 23 
 
 PROMOTERS— 
 
 Watts 47 
 
 PUBLIC WORSHIP— 
 
 Brice 9 
 
 QUARTER SESSIONS— 
 
 Smith (F. J.) 6 
 
 QUEEN'S BENCH DIVISION, Practice 
 of— 
 
 Indermaur 25 
 
 QUESTIONS FOR STUDENTS— 
 
 Aldred 21 
 
 Bar Examination Journal ... 39 
 
 Indermaur 25 
 
 Waite 22 
 
 RAILWAYS— 
 
 Browne 19 
 
 Godefroi and Shortt 47 
 
 See MAGISTERIAL LAW. 
 RATING— 
 
 Browne 19 
 
 REAL PROPERTY— 
 
 Deane 23 
 
 Edwards 16 
 
 Tarring 26 
 
 REGISTRATION— 
 
 Elliott (Newspaper) .... 14 
 
 Seager (Parliamentary) .... 47 
 REPORTS— 
 
 Bellewe 34 
 
 Brooke 35 
 
 Choyce Cases 35 
 
 Cooke 35 
 
 Cunningham 34 
 
 Election Petitions 33 
 
 Finlason 3^ 
 
 Gibbs, Seymour Will Case . . 10 
 
 Kelyng, John 35 
 
 Kelynge, William 35 
 
 ReiUy 29 
 
 Shower (Cases in Parliament) . 34 
 ROMAN DUTCH LAW— 
 
 Van Leeuwen 3^ 
 
 ROMAN LAW— 
 
 Brown's Analysis of Savigny . . 20 
 
 Campbell 47 
 
 Harris 20 
 
 Salkowski 14 
 
 Whitfield 14 
 
 SALVAGE— 
 
 Jones 47 
 
 Kay '7 
 
 SANITARY ACTS— 
 
 See MAGISTERIAL LAW. 
 SAVINGS BANKS— 
 
 Forbes 1° 
 
 SCINTILLAE JURIS - 
 
 Darling (C. J.) 18 
 
 SEA SHORE— ••*<=« 
 
 Hall 30 
 
 Moore 30 
 
 SHIPMASTERS AND SEAMEN— 
 
 Kay 17 
 
 SOCIETIES— 
 
 See CORPORATIONS. 
 STAGE CARRIAGES— 
 
 See MAGISTERIAL LAW. 
 STAMP DUTIES— 
 
 Copinger 40 and 45 
 
 STATUTE OF LIMITATIONS— 
 
 Banning 42 
 
 STATUTES— 
 
 Craies 9 
 
 Hardcastle 9 
 
 Marcy 26 
 
 Thomas 28 
 
 STOPPAGE IN TRANSITU— 
 
 Campbell 9 
 
 Houston 32 
 
 Kay .17 
 
 STUDENTS' BOOKS . 20—28, 39, 47 
 SUCCESSION DUTIES— 
 
 Hanson 10 
 
 SUCCESSION LAWS- 
 
 Lloyd 13 
 
 SUPREME COURT OF JUDICA- 
 TURE, Practice of— 
 
 Cunningham and Mattinson . . 7 
 
 Indermaur 25 
 
 TELEGRAPHS— 
 
 See MAGISTERIAL LAW. 
 TITLE DEEDS— 
 
 Copinger 45 
 
 TORTS— 
 
 Ringwood 13 
 
 TRADE MARKS— 
 
 Daniel 42 
 
 TREASON— 
 
 Kelyng 35 
 
 Taswell-Langmead ..... 21 
 TRIALS— Bartlett, A. (Murder) . . 32 
 
 Queen v. Gurney 32 
 
 ULTRA VIRES— 
 
 Brice '^ 
 
 USAGES AND CUSTOMS— 
 
 Browne '9 
 
 Mayne 38 
 
 VOLUNTARY CONVEY ANCES- 
 
 May 29 
 
 WATER COURSES— 
 
 Higgins , ... 30 
 
 WILLS, CONSTRUCTION OF— 
 Gibbs, Report of Wallace v. 
 
 Attorney-General 10 
 
 WORKING CLASSES, Housing of— 
 Lloyd 13 
 
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6 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in 8vo. Price 2ij., cloth, 
 
 THE LAWS OF INSURANCE: 
 
 dFire, ILife, accident, anli ©uatantee. 
 
 EMBODYING 
 
 CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND 
 CANADIAN COURTS. 
 
 By JAMES BIGGS PORTER, 
 
 OF THE INNER TEMPLE AND SOUTH EASTERN CIRCUIT, BARRISTER- AT -LAW. 
 
 ASSISTED BY 
 
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 OF THE INNER TEMPLE AND WESTERN CIRCUIT, BARRISTER-AT-LAW. 
 
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 In Royal i2mo, price 20s. y cloth, 
 
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 A COMPENDIUM OF THE LAW RELATING TO 
 
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 NEGLIGENCE IN LAW 
 
 Being the Second Edition of ''Principles of the Law of Negligence," 
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 By THOMAS BEVEN, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF "THE LAW OF EMPLOYERS' LIABILITY 
 FOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW-SERVANTS." 
 
 REVIEWS, 
 
 *' These volumes, says Mr. Beven in the preface, maybe regarded asasecond edition of his Principles 
 of the Law of Negligence,' in so far as the subjects treated of in both books are the same ; and the 
 materials collected in the one have been used without reserve in the other. As to anything beyond this, 
 he continues, the present is a new work. The arrangement is altogether different from that previously 
 adopted. Nearly a half of the contents of these volumes is absolutely new, and of the remainder there 
 is very little which has not been materially modified, if not in substance, yet in expression. 
 
 '* Upon its first appearance, the ' Principles of the Law of Negligence ' was at once recognized as a 
 work of the highest importance, and the ability and industry which Mr. Beven had brought to bear upon 
 his task laid the profession under no ordinary obligation. The;service which he then rendered has been 
 greatly increased by the production of this second edition, and the book deserves a place m the first 
 rank among authoritative expositions of the law. 
 
 "The chief characteristic of Mr. Beven's method is thoroughness. He is not himself in a hurry, and 
 it is certainly useless for his readers to be so. The law is to be found in his pages, and, when found, it is 
 clearly enunciated ; but it is always deduced from a full and discriminating examination of multitudinous 
 cases— English and American— and readers must be content to survey, leisurely and cautiously, with Mr. 
 Beven, the whole field of judicial exposition, and to follow his own careful and elaborate criticism, if they 
 would gain the full benefit of the results at which he arrives. The book is not meant to be taken up 
 for a hasty reference, and often the lawyer may find it more convenient to resort to a treatise more concise. 
 On the other hand, it will be an invaluable companion in the consideration of any matter which requires 
 research, and the style and arrangement is such that, whether the book is used for purposes of business or 
 of general study, it cannot fail to prove deeply interesting. . . . 
 
 "The above account is but a sketch of Mr. Beven's great work. It is impossible within the present 
 limits to give an adequate idea of the variety of topics which are included, of the learning and patience with 
 which they are discussed. Negligence may only be an aspect of the law ; but the treatment here 
 accorded to it throws into prominence a host of questions of the utmost importance, both practically and 
 theoretically. By his contribution to the due understanding of these Mr. Beven has placed the profes- 
 sion under a lasting obligation, an obligation which no reader of his work will fail to t&2X\z^," —Solicitors 
 Journal. 
 
 "The book upon which this is founded, and which is in a measure a former edition of the present 
 volumes, has made Mr. Beven an authority on the subject of the law of negligence. He has, in writing 
 these volumes, made full use of his former labours ; but he claims that in reality the present work is a 
 new one, and his claim is justified. . . . Just occasionalljr a well-written and ably- conceived law 
 book is published, and such a one is this of Mr. Beven's. We think that to compare it with other books 
 on the subject would be impossible ; it stands easily the best book on the subject. In clear exposition of 
 law, for good classification of subject-matter, for accuracy of detail, and for every arrangement to facili- 
 tate reference it cannot be beaten. We may congratulate Mr. Beven upon the accomplishment of his 
 laborious task ; he has given to the profession a valuable work, and one which will enhance his reputation 
 as a writer on the Law of Negligence." — Law Journal^ August 3, 1895. 
 
 "He has treated the well-known subject of Negligence in a scientific way, and has not been content with 
 merely collecting, in more orjless relevant positions, a number of cases which anyone could find for himself 
 in any Digest of Law Reports, but has endeavoured to reduce from the chaos of decided cases a systematic 
 study of the subject, with clear enunciations of the principles he finds governing the various decisions. In 
 the arrangement of the book the author has been very happy in his method, a by no means easy task in the 
 treatment of a subject in which each branch of it in reality overlaps another. . . .A good index and 
 clear t^e increase the value of a book which will without doubt receive the hearty commendation of the 
 profession as a successful completion of the author's ambitious task." — Laiv Ti7ncs. 
 
 " In respect of the style of treatment of the subject, the book must be hi|;hly commended. It wilj be of 
 service to every lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, 
 than merely to find correct and reliable legal propositions for practical use, and that whether he be _a student 
 or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the 
 cases ; and to the practitioner there are presented all the cases that bear on most points for which he may 
 bein search of authority. One of the chief merits of the work is, that all the available authority on each 
 point is collected and so arranged that it can be easily found." — juridical Review. 
 
 _ " Contains evidence of much serious work, and ought to receive a fair trial at the hands of the profes- 
 sion." — Law Quarterly Review. 
 
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 Second Edition, in royal 8vo, nearly ready, 
 
 THE LAW OF THE DOMESTIC RELATIONS, 
 
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 By WILLIAM FINDER EVERSLEY, B.C.L., M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
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 So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on 
 Accounts. With an Introduction and Notes. By Alfred Hanson, Esq., Comp- 
 troller of Legacy and Succession Duties. 
 
 \* This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty 
 Acts, by the same Author. 
 
 Fourth Edition, in 8vo, in the press, 
 
 THE ACTS RELATING TO PROBATE, LEGACY, AND 
 
 SUCCESSION DUTIES. Comprising the 36 Geo. III. c. 52 ; 45 Geo. III. 
 c. 28; 55 Geo. III. c. 184; and 16 & 17 Vict. u. 51 ; the Customs and Inland 
 Revenue Acts, 43 Vict. c. 14; and 44 Vict; c. 12; also the New Estate Duty 
 Finance Act, 57 & 58 Vict. c. 30; with an Introduction, Copious Notes, and 
 References to all the Decided Cases in England, Scotland, and Ireland. An 
 Appendix of Statutes, Tables, and a full Index. By Alfred Hanson, of the 
 Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Succession 
 Duties. Fourth Edition by Lewis T. Dibdin, M.A., D.C.L., and F. H. L. 
 Errington, M.A., Barristers-at-Law. 
 
 "His book is in itself a most useful one; its 
 author knows every in and out of the subject, and 
 has presented the whole in a form easily and 
 readily handled, and with good arrangement and 
 clear exposition." — Solicitors' JournaL 
 
 "It is the only complete book upon a subject of 
 great importance. 
 
 "Mr. Hanson is peculiarly qualified to be the 
 adviser at such a time. Hence a volume without 
 a rival." — Law Times. 
 
 In royal 8vo, 1877, price ioj., cloth, 
 LES HOSPICES DE PARIS ET DE LONDRES. 
 
 THE CASE OF LORD HENRY SEYMOUR'S WILL 
 
 (WALLACE V. THE ATTORNEY-GENERAL). 
 
 Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister at-Law, 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 
 
 In 8vo, 1867, price i6j., cloth, 
 
 CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; 
 
 THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1862; 
 THE ROMAN CATHOLIC CHARITIES ACTS: 
 Together with a Collection of Statutes relating to or affecting Charities, including the 
 Mortmain Acts, Notes of Cases from 1853 to the present time, Forms of Decla- 
 rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a 
 very copious Index. Second Edition. 
 By HUGH COOKE and R, G. HARWOOD, of the Charity Commission. 
 
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STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 11 
 
 In one Volume, 8vo, price 20s., cloth, 
 THE 
 
 PRINCIPLES OF COMMERCIAL LAW; 
 
 WITH AN APPENDIX OF STATUTES, ANNOTATED BY MEANS OF 
 REFERENCES TO THE TEXT. 
 
 By JOSEPH HURST and LORD ROBERT CECIL, 
 
 OF THE INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 "Their compendium, we believe, will be found a really useful volume, one for the lawyer and the 
 business man to keep at his elbow, and which, if not giving them all that they require, will place in their 
 hands the key to the richer and more elaborate treasures of the Law which lie in larger and more exhaus- 
 tive works." — Laiv Thnes. 
 
 "The object of the authors of this work, they tell us in their preface, is to state, within a moderate 
 compass, the principles of commercial law. Very considerable pains have obviously been expended on the 
 task, and the book is in many respects a very serviceable one." — Law Journal. 
 
 Second Edition, in royal 8vo, price 25^. cloth, 
 THE 
 
 RELATIONSHIP OF LANDLORD AND TENANT. 
 
 By EDGAR FOA, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "Will be found of much value to practitioners, and when a second edition has given the author the 
 opportunity of reconsidering and carefully revising his statements in detail, we^ think it will take its place 
 as a very good treatise on the modern law of landlord and tenant." — Solicitors' journal. 
 
 " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- 
 bered by SD many decisions as the Law of Landlord and Tenant. But his boldness is justified by the 
 excellent arrangement and by the lucid statements which characterise his book." — Law Quarterly Review, 
 
 " Mr. Foa's is a compact work, treating (i) of the creation of the relationship ; (2) the incidents of 
 creation (distress) and determination of the .elationship ; (3) modes and incidents of determination. We 
 commend it to the attention of the Profession and predict for Foa on Landlord and Tenant a very useful 
 and very permanent future." — Law Times. _ -- . . 
 
 "We have nothing but praise for the work, and we shall be astonished if it does not take rank in 
 course of time as one of the best— if not the best— work for every-day practice on the subject of Landlord 
 and Tenant." — Law Notes. 
 
 " Without making any invidious comparison with existing works on the subject, we may frankly, say 
 that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly 
 fzLVOunMe one."— Law Sturlents' yaumal. , ,. ^, x, t, ■ t a- j 
 
 " ' 'Ihe Relationship of Landlord and Tenant,' written by Mr. Edgar Foa, Bamster-at-Law, affords a 
 striking instance of accuracy and lucidity of statement. The volume should be found u.seful not only by 
 lawyers but by landlords and tenants themselves, the law in each particular being stated with a simphcity 
 and clearness which bring it within the grasp of the lay mind."— Law Gazette. 
 
 Second Edition, in one Volume, medium 8vo, price 35^., cloth, 
 
 EMDEN'S COMPLETE COLLECTION 
 
 OF 
 
 PRACTICE STATUTES, 
 
 ORDERS AND RULES. 
 
 Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now 
 in force, and relate to the Practice and Procedure of the Supreme Court. From 
 1278 to 1886. With Tabulated Summaries of the Leading Cases and Analytical 
 Cross-references. 
 
 By ALFRED EMDEN, 
 
 OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW, AUTHOR OF "THE PRACTICE IN WINDING-UP 
 
 companies;" "the law relating to building, building leases, and contracts; 
 "the shareholder's legal guide," etc. 
 
 ASSISTED BY 
 
 HERBERT THOMPSON, M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW, 
 
 Digitized by Microsoft® o 2 
 
12 
 
 STEVENS &> BAYNES, BELL YARD, TEMPLE BAR. 
 
 In royal 8vo, price 28j., cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE 
 
 RELATING TO 
 
 LETTERS PATENT for INVENTIONS. 
 
 WITH AN 
 
 . APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, 
 RULES, FORMS AND PRECEDENTS, ORDERS, &c. 
 
 By ROBERT FROST, B.Sc. (Lond.), 
 
 FELLOW OF THE CHEMICAL SOCIETY ; OF LINCOLN'S INN, ESQUIRE, BARRISTER- AT-LAW. 
 
 " In our View a good piece of work may create a demand, and without disparaging existing literature 
 upon the suhject of patents, we think the care and skill with which the volume by Mr. Frost hasbeen 
 compiled entitles it to recognition at the hands of the profession. . . . Judging Mr. Frost on this 
 ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that 
 great care and much labour have been devoted to the production of this treatise, and we think that patent 
 agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages 
 of Mr. Frost." — Laiv Times. 
 
 " Few practice books contain so much in so reasonable a space, and we repeat that it will be found 
 generally useful by practitioners in this important branch of the law. . . A capital index concludes 
 
 the book." — Law Jourtial. 
 
 *' The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- 
 veniently arranged and discussed in the thirteen chapters which form the body of the work, to which 
 are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test 
 them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is 
 a good one, and will make its way. The index is better than usual. Both paper and type are alio 
 excellent."— -6'(7//£r//(7r^' yournal. 
 
 Second Edition. In two volumes, royal 8vo, price 50^-,, cloth, 
 
 A PRACTICAL TREATISE ON THE 
 
 LAW OF BUILDING AND 
 ENGINEERING CONTRACTS, 
 
 And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, 
 
 SURVEYORS AND VALUERS, 
 
 WITH AN APPENDIX OF PRECEDENTS, 
 
 ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS 
 
 IN USE, 
 
 AND AN APPENDIX OF UNREPORTED CASES 
 
 ON BUILDING AND ENGINEERING CONTRACTS. 
 
 By ALFRED A. HUDSON, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 This IS a book of great elaboration and completeness. It appears from the preface that the author has 
 the twofold qualification of technical knowledge of building, gained as an architect, and devotion to the 
 legal aspects of building, engineering, and shipbuilding contracts since he became a member of the bar. 
 • ■ • • 7"''? ''^' of cases cited covers fifty large pages, and they include, not merely English, but American 
 
 and Colonial decisions The book as a whole represents a large amount of well-directed labour, and 
 
 it ought to become the standard work on its subject." — Solicitors' Journal. 
 
 " A very full index completes the book. Mr. Hudson has struck out a new line for himself, and pro- 
 duced a work of con.siderable merit, and one which will probably be found indispensable by practitioners, 
 inasmuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all 
 the reports." — Laiv Journal. 
 
 " Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea 
 of writing this work, and he has done it with a thoroughness which every houseowner would like to see 
 
 bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industry 
 
 expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his 
 labours by obtaining a large and appreciative public."— Znw Times. 
 
 Digitized by Microsoft® 
 
SIEMENS <Sr> HAYNES, BELL YARD, TEMPLE BAR. 13 
 
 Second Edition. In 8vo, price \os. 6d., cloth, 
 
 OUTLINES OF THE LAW OF TORTS. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BAREISTER-AT-LAW ; AUTHOR OF "PRINCIPLES OF BANKKUPTCY," &€., 
 AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. 
 
 _ Ihis IS a work by the well-known author of a student's book on Bankruptcy. Its groundwork is a 
 series of lectures delivered in 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law 
 bociety. It IS clear, concise, well and intelligently written and one rises from its perusal with feelings of 
 pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students." — 
 Law Students Journal. 
 
 " The work is one we well recommend to law students, and the able way in which it is written reflects 
 much credit upon the author." — Law Times. 
 
 "Mr. Ringwood's book is a plain and straightforward introduction to this branch of the law."— iaw 
 journal, 
 
 *,* Prescribed as a text-iook by the I ncorporated Law Society 0/ Ireland. 
 
 Sixth Edition, in 8vo, price 21s., cloth, 
 
 THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. 
 
 UNDER THE LANDS CLAUSES CONSOLIDATION ACTS, THE RAILWAYS 
 
 CLAUSES CONSOLIDATION ACTS, THE PUBLIC HEALTH ACT, 1875 ; 
 
 THE HOUSING OF THE WORKING CLASSES ACT, 1890; 
 
 THE METROPOLIS LOCAL MANAGEMENT ACT, 
 
 AND OTHER ACTS, 
 
 WITH A FULL COLLECTION OF FORMS AND PRECEDENTS, 
 By eyre LLOYD, 
 
 OF THE INNER TEMPLE, DARRISTER-AT-LAW. 
 
 SIXTH EDITION. 
 
 By W. J. BROOKS, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 '* In. providing the le^al Profession with a book which contains the decisions of the Courts of Law and 
 Equity upon the various statutes relatiitg to the Law of Cojnpensaiion, Mr, Eyre Lloyd has long since 
 left all competitors in the distance, and his book may now be considered tfie standard ivork upon the sub- 
 ject. The plan of Mr. Lloyds book is generally known, audits lucidity is appreciated ; the present gitite 
 fulfils all the protnises of the preceding editions, and contains in addition to other 7natter a complete set 
 of forms under the Artizans ajid Labourers Act, 1875, a7ui specimetis of Bills of Costs ^ which will be found 
 a twvel feature, extremely useful to legal practitioners." — Justice op the Peace. 
 
 In SvOj price 7j., cloth, 
 
 THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, 
 
 WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE 
 AS IT EXISTS IN ENGLAND. 
 
 By eyre LLOYD, B.A., Barrister-at-Law. 
 In crown 8vo, price 6j. , cloth, 
 
 ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. 
 
 By JOHN W. SALMOND, M.A., LL.B. (Lond.), 
 
 A BARRISTER OF THE SUPREME COURT OF NEW ZEALAND. 
 
 In crown 8vo, price 6j,, cloth. 
 
 THE FIRST PRINCIPLES OF JURISPRUDENCE. 
 
 By JOHN W. SALMOND, M.A., LL.B., 
 
 BAKRISTEE-AT-LAW ; AUTHOR OF "ESSAV.S IN JURISfRUDENCE AND LEGAL HISTORY." 
 
 Uigirized by IVIicrosotrw 
 
14 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 In the Press, in 8vo, and nearly ready. 
 
 THE LAW OF 
 
 NEGOTIABLE SECURITIES. 
 
 CONTAINED IN A COURSE OF SIX LECTURES. 
 
 Delivered by WILLIAM WILLIS, Esq., Q.C, 
 
 UNDER THE AUSPICES OF 
 
 THE COUNCIL OF LEGAL EDUCATION. 
 
 In one large vol., 8vo, price 32j-., cloth, 
 
 INSTITUTES AND HISTORY OF ROMAN PRIVATE LAI, 
 
 WITH CATENA OF TEXTS. 
 
 By Dr. CARL SALKOWSKI, Professor of Laws, Konigsberg. 
 
 Translated and Edited by E. E. Whitfield, M.A. (Oxon.). 
 
 In 8vo, price 4J. M. , cloth, 
 THE 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 
 
 WITH A STATEMENT OF THE LAW OF LIBEL AS AFFECTING 
 PROPRIETORS, PUBLISHERS, and EDITORS OF NEWSPAPERS. 
 
 By G. ELLIOTT, Barrister-at-Law, of the Inner Temple. 
 In one volume, royal 8vo, 
 
 CASES AND OPINIONS ON CONSTITUTIONAL LAW, 
 
 AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. 
 
 COLLECTED AND DIGESTED FROM OFFICIAL DOCUMENTS 
 
 AND OTHER SOURCES. 
 
 WITH NOTES. 
 
 By WILLIAM FORSYTH, M.A., M.P., Q.C, 
 
 STANDING COUNSEL TO THE SECRETARY OF STATE IN COUNCIL OF INDIA, 
 
 Author of " Hortensius," " History of Trial by Jury," " Life of Cicero," etc., 
 late Fellow of Trinity College, Cambridge. 
 
 Digitized by Microsoft® 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 15 
 
 Sixth Edition, in 8vo, price lOi. 6rf., clotli, 
 
 THE PRINCIPLES OF BANKRUPTCY. 
 
 WITH AN APPENDIX, 
 
 CONTAINING 
 
 THE CONSOLIDATED RULES OF 1886, 1890 k 1891, SCALE OF 
 
 COSTS, AND THE BILLS OF SALE ACTS, 1878, 1882, 1890 & 
 
 1891, AND THE RULES THEREUNDER; THE DEEDS OF 
 
 ARRANGEMENT ACT, 1887, AND THE RULES THEREUNDER. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. 
 
 " We welcome a new edition of this excellent student's book. We have written favourably of it in 
 reviewing previous editions, and every good word we have written we would now reiterate and perhaps 
 even more so. . . . In conclusion, we congratulate Mr. Ringwood on this edition, and have no 
 hesitation in saying that it is a capital student's book." — Law Students' Journal. 
 
 "This edition is a considerable improvement on the first, and although chiefly written for the use of 
 Students, the work will be found useful to the practitioner." — Law Times. 
 
 Seventh Edition, in 8vo, price 2iJ., cloth, 
 
 A TREATISE UPON 
 
 THE LAW OF BANKRUPTCY 
 
 AND 
 
 BILLS OF SALE. 
 
 WITH AN APPENDIX 
 
 CONTAINING 
 
 THE BANKRUPTCY ACTS, 1883— 1890; GENERAL RULES, 
 
 FORMS, SCALE OF COSTS AND FEES ; 
 
 RULES UNDER S. 122 of 1888 ; DEEDS OF ARRANGEMENT ACTS, 
 
 1887— 1890; RULES AND FORMS ; BOARD OF TRADE AND 
 
 COURT ORDERS ; DEBTORS ACTS, 1869, 1878 ; RULES AND FORMS; 
 
 BILLS OF SALE ACTS, 1878— 1891, ETC., Etc. 
 
 By EDWARD T. BALDWIN, M.A., 
 
 OF THE INNER TEMPLE, BAERISTER-AT-LAW. 
 
 "The seven editions simply record the constant progress of case growth and statute law. It is a 
 remarkably useful compendium."— Zaw 7"otm, July 20, 1805. ,,,,,,,, _ ,. , 
 "As a well-arranged and complete collection of case law this book should be found of great use. —Law 
 
 ""Se'fullv brought down to date"— i'<'/2«V»>-i'7w«a/, November 9, 189s. ^ , 
 
 " We have always considered the work an admirable one, and the present edition is quite up to the 
 previous high standard of excellence. We know of no better book on bankruptcy for the practitioner s 
 UhiiLTV "—Law Sticdeits yournal, ^ngast, ligs. .... ■ ... r r 
 
 "Practitioners may, we feel sure, safely rely on its accuracy. A distinct acquisition for reference 
 purposes to the shelf of any practitioner."— i^aro Notes. 
 
 Digitized by Microsoft® 
 
16 STEVENS &= HAYNES, BELL YARD, TEMPL E BAR. 
 
 Second Edition, in one vol., price 20J., cloth, 
 
 A COMPENDIUM OF THE LAW OF 
 PROPERTY IN LAND. 
 
 FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 SECOND EDITION. 
 
 By WILLIAM DOUGLAS EDWARDS, LL.B., 
 
 OF Lincoln's inn, barrister-at-law. 
 
 *' We consider it one of the best works published on Real Property Law.'' — Lain Students' Journal. 
 
 "Another excellent compendium which has entered a second edition is Mr, Edwards' 'Compendium of 
 the Law of Property in Land.' No work on English law is written more perspicuously. . . . Mr. 
 Edwards has manifestly bestowed the utmost care in putting into the most modern dress a treatise which 
 we think will continue to grow in the estimation of the profession." — Law Times. 
 
 " We formed a very favourable opinion of the first edition of this little book, and our opinion is con- 
 firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit 
 perhaps not always possessed by the authors of legal text-books for students." — Laiv Quarterly Review. 
 
 "The book is certainly destined to take a high place as a standard work on the Law of Property in 
 Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. • • ; • 
 
 The amount of detail is much greater than in Williams As a companion volume to it, we can with 
 
 great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of 
 the modern law. Altogether it is a work for which we are indebted to the author, and is worthy of the 
 improved notions of law which the study of jurisprudence is bringing to the ixonl."— Solicitors^ Journal. 
 
 " This bock shows signs of thorough work throughout The book is a business-like and useful 
 
 performance." — Law Joufnal. 
 
 Third Edition, royal 8vo, price 38J., cloth. 
 THE 
 
 LAW OF CORPORATIONS AND COMPANIES. 
 
 A TREATISE ON THE DOCTRINE OF 
 
 ULTRA VIRES: 
 
 BEING 
 
 An Investigation of tlie Principles which Limit the Capacities, Powers, and Liabilities of 
 CORPORATIONS, 
 
 AND MORE ESPECIALLY OF 
 
 JOINT STOCK COMPANIES. 
 
 By SEWARD BRICE, M.A., LL.D., London, 
 
 OF THE INNER TEMPLE, ONE OF HER MAJESTY'S COUNSEL. 
 
 THIRD EDITION. 
 
 REVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE 
 UNITED STATES AND COLONIAL DECISIONS. 
 
 REVIEWS. 
 
 ". . . . On tlu whole, we consider Mr. Brices exhaustive work a valtiable addition to the literature of 
 the p7-o/esszon. '—Saturday Review. 
 
 " It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same 
 time more scientifically, than any work with which we are acquainted), not the law of principal and 
 agent ; and Mr. Brice does not do his book justice by giving it so vague a title."— Zaw; Journal. 
 
 "On this doctrine, first introduced in the Common Law Courts in East Anglian Railway Co. v. 
 Eastern Counties Railway Co., Beice on Ultra Vires may be read with advantage."— %«&•»!««< of 
 Lord Justice Bramwell, in tlie Case of Evers/ied v. L. &' N. W. Ry. Co. (L. R., 3 Q. B. Div 141 ) 
 
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STEVENS <Sr' ffAYNES, BELL YARD, TEMPLE BAR. 17 
 
 Sixth Edition, in royal 8vo, price 34J., cloth, 
 
 BDCKLEY ON THE COMPANIES ACTS. 
 
 SIXTH EDITION BY THE AUTHOR. 
 
 THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 1862 to 1890; and 
 
 THE LIFE ASSURANCE COMPANIES ACTS, 1870 to 1872 ; including 
 
 THE COMPANIES (MEMORANDUM OF ASSOCIATION) ACT; 
 
 THE COMPANIES (WINDING-UP) ACT, and the 
 
 DIRECTORS' LIABILITY ACT. 
 
 % "^reatist on the Jah) of Joint ;Stock Comirantes. 
 
 CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND 
 
 FORMS, TO REGULATE PROCEEDINGS. 
 
 By H. burton BUCKLEY, M.A., 
 
 OF LINCOLN'S INN, ESQ., ONE OF HER MAJESTy's COUNSEL. 
 
 Second Edition, with Supplement, in royal 8vo, price ifis., cloth. 
 THE LAW RELATING TO 
 
 SHIPMASTERS AND SEAMEN. 
 
 THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABHITIES 
 
 AND REMEDIES, 
 
 By THE LATE JOSEPH KAY, Esq., M.A., Q.C. 
 
 Second Edition. 
 
 WITH A SUPPLEMENT 
 
 Comprising THE MERCHANT SHIPPING ACT, 1894, The Rules n; 
 
 Couri made thereunder, and the {proposed) Regulations for 
 
 Preventing Collisions at Sea. 
 
 By THE Hon. J. W. MANSFIELD, M.A., and 
 
 G. W. DUNCAN, Esq., B.A., 
 
 OF THE INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 REVIEWS OF THE SECOND EDITION : 
 
 "It will, however, be a valuable book of refer- 
 ence for any lawyer desiring to look up a point 
 connected with the rights and duties of a ship- 
 master or a seaman— the list of cases cited covers 
 nearly seventy pages— while any shiprnaster, ship- 
 aeent or consul who masters this edition will be 
 well posted up. . ... We hope this new 
 Edition will be quickly appreciated, for the 
 
 Editors have carried out an arduous task carefully 
 and well." — Law Journal, April, 1894. 
 
 "It has had practical and expert knowledge 
 brought to bear upon it, while the case law is 
 brought down to a very late date. Considerable 
 improvement has been made in the index." — Lait 
 Times, April, 1894. 
 
 In royal 8vo, price los. 6d., cloth, 
 
 THE MERCHANT SHIPPING ACT, 1894; 
 
 With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW 
 RELATING TO SHIPMASTERS AND SEAMEN. To which are added the 
 (orooosed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. J. 
 W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers- 
 at-Law. 
 
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18 
 
 STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in royal 8vo, price 40J., cloth, 
 
 THE JUDGMENTS, ORDERS, AND PRACTICE OF 
 THE SUPREME COURT, 
 
 CHIEFLY in RESPECT to ACTIONS ASSIGNED to the CHANCERY DIVISION. 
 
 By LOFTUS LEIGH PEMBERTON, 
 
 One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice 
 
 in Equity by way of Revivor and Supplement." 
 
 "The work under notice ought to be of considerable service to the profession The forms 
 
 throughout the work — and they are the most important element in it — appear to us to be accurate, and of 
 the most approved type. This fact alone will commend the new edition to practitioners in the Chancery 
 Division. There is a useful table of the Lord Chancellors and Judges at the beginning of the book, and a 
 very full index concludes \\."—La7u Thiies. _^ 
 
 In demy i2mo, price 5^., 
 
 THE STATUTORY LAW RELATING -TO TRUSTEE 
 
 SAVINGS BANKS (1863—1891), together with the Treasury Regu- 
 lations (1888— 1889), and the Scheme for the Appointment of the Inspection 
 Committee of Trustee Savings Banks. By Urquhart A. Forbes, of Lincoln's 
 Inn, Esq., Barrister-at-Law, Author of " The Law Relating to Savings Banks ; " 
 the "Law of Savings Banks since 1878;" and joint Author of "The Law 
 Relating to Water." 
 
 In demy l2mo, price ds., cloth, 
 
 THE LAW OF SAVINGS BANKS SINCE 1878; 
 
 With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of 
 Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to 
 Trustee and Post Office Savings Banks. 
 
 By U. a. FORBES, of Lincoln's Inn, Barrister-at-Law. 
 * ^ The complete work can be had, price \os. 6d., cloth. 
 
 In 8vo, price 15^., cloth, 
 THE LAW AND PRACTICE RELATING TO 
 
 THE ADMINISTRATION OF DECEASED PERSONS 
 
 BY THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE; 
 WITH AN ADDENDA giving the alterations effected by the NEW RULES of 1883, 
 
 And an APPENDIX OF ORDERS AND FORMS, Annotated by 
 References to the Text. 
 
 By W. GREGORY WALKER and EDGAR J. ELGOOD, 
 
 OF Lincoln's inn, barristers-at-law. 
 
 "In this volume the most important branch of 
 the administrative business of the Chancery Divi- 
 sion is treated with conciseness and care. Judging 
 from the admirable clearness of expression which 
 characterises the entire work, and the labour which 
 has evidently been bestowed on every detail, we do 
 not think that a literary executorship could have 
 devolved upon a more able and conscientious repre- 
 sentative . . . ._ Useful chapters are introduced 
 in their appropriate places, dealing with the 
 
 * Parties to administration actions,' ' The proofs of 
 claims in Chambers,' and 'The cost of adminis- 
 tration actions.' To the last-mentioned chapter we 
 gladly accord special praise, as a clear and succinct 
 summary of the law, from which, so far as we have 
 tested it, no proposition of any Importance has been 
 omitted . . ^ . An elaborately constructed table 
 of cases, with references in separate columns to all 
 the reports, and a fairly good index, much increase 
 the utility of the work." — Solicitors' Journal, 
 
 In Foolscap 8vo, superfine paper, bound in Vellum, price 3^-. 6(/. net. 
 *** A limited number of copies have been printed upon large paper ^ price *]s, 6d. net 
 
 SCINTILLAE JURIS. 
 
 CHARLES J. DARLING, Q.C., M.P. With a Frontispiece and Colophon by 
 Frank Lockwood, Q.C, M.P. Fourth Edition (Enlarged). 
 " 'Scinlillae Juris' is that little bundle of humorous essays on law and cognate matters which, since the 
 day of Its first appearance, some years ago, has been the delight of legal circles. . . . It has a quality 
 of style which suggests much-study of Bacon in his lighter vem. Its best essays would not be unworthy of 
 the Essays, and if read out, one by one, before a blindfolded connoisseur, might often be assigned to that 
 wonderful book." — Daily News. 
 
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STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 19 
 
 Second Edition, in 8vo, price 25^., cloth, 
 THE PRINCIPLES OF 
 
 THE LAW OF RATING OF HEREDITAIVIENTS 
 
 IN THE OCCUPATION OF COMPANIES. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C., 
 
 And D. N. McNAUGHTON, of the Middle Temple, Barrister-at-Law. 
 
 that such a work is much needed and we are sure 
 
 "The tables and specimen valuations which are 
 printed in an appendix to this volume will be of 
 great service to the parish authorities, and to the 
 legal practitioners who may have to deal with the 
 rating of those properties which are in the occupa- 
 tion of Companies, and we congratulate Mr. Browne 
 on the production of a clear and concise book of 
 the system of Company Rating. There is no doubt 
 
 that all those who are interested in or tave to do 
 with, public rating, will find it of great service. 
 Much credit is therefore due to Mr. Browne for his 
 able_ treatise — a work which his experience as 
 Registrar of the Railway Commission peculiarly 
 quahfied him to undertake." — Law Magazine. 
 
 In 8vo, 1S75, price *]s. 6d.j clothj 
 
 THE LAW OF USAGES & CUSTOMS: 
 
 % Irattital fate Sratt. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C. 
 
 " We look upon this treatise as a valuable addition to works written on the Science of Law." — Canada 
 Law Jmimal. 
 
 "As a tract upon a very troublesome department of Law.it is admirable — the principles laid down are 
 sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and 
 distinguished when necessary." — Irish Laiv Times, 
 
 "As a book of reference we know of none so comprehensive dealing with this particular branch of 
 Common Law. . . . In this way the book is invaluable to the practitioner." — Law Magazine. 
 
 In one volume, 8vo, 1875, price i8j., doth, 
 
 THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS 
 
 UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 1874; 
 With the Amended General Orders of the Commissioners, Schedule of Forms, and Table 
 of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction 
 of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of 
 Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases. 
 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C. 
 
 " Mr. Browne's book is handy and convenient in 
 form, and well arranged for the purpose of refer- 
 ence : its treatment of the subject is fully and 
 carefully worked out : it is, so far as we have been 
 able to test it, accurate and trustworthy. It is the 
 
 work of a man of capable legal attainments, and by 
 official position intimate with his subject ; and we 
 therefore think that it cannot fail to meet a real 
 want and to prove of service to the legal profession 
 and the public." — Law Magazine. 
 
 In 8vo, 1876, price "js. 6d.y cloth, 
 
 ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS 
 OF COMPANIES BY CORPORATIONS, 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. By J. H. Balfour Browne, of the Middle Temple, Q.C. 
 
 'This is a work of considerable importance to all 
 
 Municipal Corporations, and it is hardly too much to 
 say that every member of these bodies should have 
 a copy by him for constant reference. Probably at 
 no very distant date the property of all the existing 
 gas and water companies will pass under municipal 
 control, and therefore it is exceedingly desiral^le 
 that the principles and conditions under which such 
 transfers ought to be made should be clearly under- 
 stood. This task is made easj by the present volume. 
 The stimulus for the publication of such a work 
 was given by the action of the Parliamentary 
 Committee which last session passed the preamble 
 of the 'Stockton and Middlesborough Corporations 
 Water Bill, 1876.' The volume accordingly con- 
 tains a full report of the case as it was presented 
 
 both by the promoters and opponents, and as this 
 was the first time in which the principle of com- 
 pulsory purchase was definitely recognised, there 
 can be no doubt that it will long be regarded as a 
 leading case. As a matter of course, many inci- 
 dental points of interest arose during the progress 
 of the case. Thus, besides the main question cf 
 compulsory purchase, and the question as to whether 
 there was or was not any precedent for the Bill, the 
 questions of water compensations, of appeals fiom 
 one Committee to another, and ether kindred sub- 
 jects were discussed. These are all treated at length 
 by the Author in the body of the work, which is 
 thus a complete legal compendium on the large 
 subject with which it so ably deals." 
 
 Digitized by Microsoft© 
 
20 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 In crown 8vo, price loj'. dd., cloth, 
 
 THE LAW OF EVIDENCE, 
 
 By S. L. PHIPSON, M.A., of the Inner Temple, Barrister-at-Law. 
 ' This book condenses a head of law into a " We are of opinion that Mr. Phipson has pro- 
 
 comparatively small compass — a class of literary 
 undertaking to which every encouragement should 
 be given. . . . The volume is most portable, most 
 compendious, and as far as we have been able to 
 examine it, as accurate as any law book can be 
 expected to be." — Law Times. 
 
 duced a book which will be found very serviceable, 
 not only for practitioners, but also for students. 
 We have tried it in a good many places, and we 
 find that it is well brought down to date." — La'u* 
 Journal. 
 
 In 8vo, 1878, price 6j., cloth, 
 THE 
 
 LAW RELATING TO CHARITIES, 
 
 ESPECIALLY WITH REFERENCE TO THE VALIDITY AND CONSTRUCTION OF 
 
 CHARITABLE BEQUESTS AND CONVEYANCES. 
 
 By FERDINAND M. WHITEFORD, of Lincoln's Inn, Barrister-at-Law. 
 
 In 8vo, 1872, price ^s. 6d., cloth, 
 AN EPITOME AND ANALYSIS OF 
 
 SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. 
 
 By ARCHIBALD BROWN, M.A. 
 
 EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, 
 
 "Mr. Archibald Brown deserves the thanks \ the French translation consisting of two volumes, 
 
 of all interested in the science of Law, whether | with some five hundred pages apiece, as compared 
 
 as a study or a practice, for his edition of j with Mr. Brown's thin volume of a hundred and 
 
 Herr von Savigny's great work on 'Obligations.' | fifty pages. At the same time the pith of Von 
 
 Mr. Brown has undertaken a double task — the \ Savigny's matter seems to be very successfully pre- 
 
 translation of his author, and the analysis of his ; served, nothing which might be useful to the 
 
 author's matter. That he has succeeded in reducing 1 English reader being apparently omitted.*' — Law 
 
 the bulk of the original will be seen at a glance ; I Journal. 
 
 THE ELEMENTS OF ROMAN LAW. 
 
 Second Edition, in crown 8vo, price 6j., cloth, 
 A CONCISE DIGEST OF THE 
 
 INSTITUTES OF GAIUS AND JUSTINIAN. 
 
 With copious References arranged in Parallel Columns, also Chronological and 
 
 Analytical Tables, Lists of Laws, (s'c. (syc. 
 
 Primarily designed for the Use of Students preparing for Examination at 
 
 Oxford, Cambridge, and the Inns of.Court. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A., 
 
 WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARRISTER-AT-LAW ; 
 AUTHOR OK "universities AND LEGAL EDUCATION." 
 
 ' ' Mr. Harris^ digest ought to have very great success among law students both in the 
 Inns of Court and the Universities. His book gives evidence of praiseworthy cucuracy 
 and laborious condensation." — Law Journal. 
 
 " This book contains a summary in English of the elements of Roman Law as contained 
 in the works of Gaius and fustinian, arid is so arranged that the reader can at once see 
 what are the opinions of either of these two writers on each point. From the very exact 
 and accurate references to titles and sections given he can at once refer to the anginal 
 writers. The concise manner in which Mr. Harris has arranged his digest will render 
 it most useful, not only to the students for whom it was originally written, but a/so to those 
 persons who, though they have not the time to wade through the larger treatises of Poste, 
 Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law. " — 
 Oxford and Cambridge Undergraduates' Journal. 
 
 ' ' Mr. Harris deserves the credit of having produced an epitome which will be op service 
 to those numerous students who have no time or sufficient ability to analyse the Institutes 
 for themselves." — Law Times. 
 
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WORKS FOR LAW STUDENTS. 21 
 
 Fourth Edition, in 8vo, price 21s., cloth, 
 
 ENGLISH CONSTITUTIONAL HISTORY: 
 
 FROM THE TEUTONIC INVASION TO THE PRESENT TIME. 
 
 ^esiffittli as a %,txi-hoo\i iox. ^tuttnts anb 0thei-«, 
 
 By T. p. TASWELL-LANGMEAD, B.C.L., 
 
 OF LINCOLN S INK, BARRISTER-AT-LAW, FORMERLY VINERIAN SCHOLAR IN THE UNIVERSITY 
 
 AND LATE PROFESSOR OF CONSTITUTIONAL LAW AND HISTORY, 
 
 UNIVERSITY COLLEGE, LONDON. 
 
 Fourth Edition, Revised throughout, vv'ith Notes and Appendices. 
 By C. H. E. Carmichael, M.A. Oxon. 
 
 "Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of 
 excellence attained by Taswell-Langmead's treatise is worthily maintained. This, the third edition, will 
 be found as useful as its predecessors to the large class of readers and students who seek in its pages 
 accurate knowledge of the history of the constitution."— Z.«zi; Times. 
 
 " To the student of constitutional law this work will be invaluable The book is remarkable 
 
 for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and 
 add much to the value of the work." — Scottish Lain Review. 
 
 ]| The work will continue to hold the field as the best class-book on the ^\xhiitct."—CoiUemporary Review. 
 The book is well known as an admirable introduction to the study of constitutional law for students at 
 law. . . . Mr. Carmichael appears to have done the work of editing, made necessary by the death 
 
 of Mr. Taswell-Langmead, with care and judgment."— .Z^ait/ Jourtiat. 
 
 " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, 
 andsize, it would be difficult to find anything better on the real history of England, the history of its 
 constitutional growth as a complete storj;, than this volume."— i?Oi^(p« {U.S.') Literary World. 
 
 "As it now stands, we should find it hard to name a better text-book on English Constitutional 
 History. " — Solicitors' yourtial. 
 
 " Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has 
 
 evidently supplied a want The present Edition is greatly improved. . . . We have no hesitationi n 
 
 saying that it is a thoroughly good and useful work." — Spectator. 
 
 " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law." — Globe. 
 
 "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a 
 history should be." — Statidard. 
 
 _" Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing? 
 with that chief subject of constitutional history — parliamentary government — that the work exhibits its 
 great superiority over its rivals." — Academy. 
 
 Second Edition, in 8vo, price 6j., cloth, 
 
 HANDBOOK TO THE INTERMEDIATE AND 
 FINAL LLB. OF LONDON UNIVERSITY ; 
 
 (PASS AND HONOURS), 
 Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE,' 
 AND THE EXAMINATION PAPERS of LATE YEARS in ALL BRANCHES. 
 
 By a B.A., LL.B. (Lond.). 
 
 " Increased in size and usefulness. . . . The book will undoubtedly be of help to those students 
 who prepare themselves for examination. . . . The Appendix contains a good selection of papers 
 set at the different examinations." — Law Times. 
 
 "A very good handbook to the Intermediate and Final LL.B. by a B.A., LL.B." — Law Notes. 
 
 In crown 8vo, price 3.?. ; or Interleaved for Notes, price 4^., 
 
 CONTRACT LAW. 
 
 QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the 
 Answers. Founded on ^' Anson," " Chiity" and "Pollock.'" 
 
 By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late 
 Examiner for the University of Oxford. 
 
 " This appears to us a very admirable selection of questions, comparing favourably with the average 
 run of those set in examinations, and useful for the purpose ot testing progress."— Zaiu Journal. 
 
 ^ Digitized by Microsoft® " 
 
22 WORKS FOR LAW STUDENTS. 
 
 Eleventh Edition, in 8vo, price 2\s., cloth, 
 
 THE PRINCIPLES OF EQUITY. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 By EDMUND H. T. SNELL, 
 
 OF THF MIDDLE TEMPLE, BAREISTER-AT-LAW. 
 
 ELEVENTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin. & Oxon., & B.C.L. Oxon., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF "a NEW LAW DICTIONARY," 
 "an ANALYSIS OF SAVIGNY ON OBLIGATIONS," AND THE " LAW OF FIXTURES." 
 
 REVIEWS. 
 
 "The Eleventh Edition of ' Snell's Equity ' is remarkable in one respect, viz., the learned editor ha_s,_ as 
 he tells us in his preface, actually succeeded in diminishing the size of the book. It is the Eighth Edition 
 which has passed through the able hands of Mr. Archibald Brown, and the deserved reputation of the 
 work has certainly not suffered any loss in the process. In the present edition the book is well brought 
 up to date. . . . The printing and get-up of the book are excellent and the index is good." — Law youmal. 
 
 " This is the Eighth Edition of this student's text-book which the present editor has brought out. _. . . 
 the book is a good introduction to Equity, and is additionally useful by having a full index." — Solicitors' 
 youmal. 
 
 " The book remains what it always has been, the indispensable guide to the beginner of the study of 
 Equity, without ceasing to be above the notice ol the more experienced student." — Oxford Magazine. 
 
 " Whether to the beginner in the study of the principles of Equity, or to the practising lawyer in tlie 
 harry of work, it can be unhesitatingly recommended as a standard and invaluable treatise." — Ca^nbridge 
 Review. 
 
 "This work on the ' Principles of Equity' has, since the publication of the First Edition, been 
 recognised as the best elementary treatise on the subject, and it would not be necessary to say more of 
 this Edition, than to mention the fact of its publication, were it not for the fact that the author, Mr. Snell, 
 is dead, and the late Editions have been brought out under the care of Mr. Brown. It seldom happens 
 that a new editor is able to improve on the work of his predecessor in its plan or its details. But in the 
 case of the present work we find that each edition is a manifest improvement on the former ones, and well 
 as Mr. Snell did his work we discover that Mr. Brown has done it better."— Irish Law Times. 
 
 " This is now unquestionably the standard book on Equity for students." — Sahirday Review. 
 
 " We know of no better introduction to the Principles of Equity,^* — 
 Canada Law Journal. 
 
 Fifth Edition, in 8vo, price 6^., cloth, 
 
 AN ANALYSIS OF SNELL'S PRINCIPLES OF 
 
 EQUITY. Founded on the Eleventh Edition. With Notes thereon. 
 By E. E. Blyth, LL.D., Solicitor. 
 
 " Mr. Blyth's book will undoubtedly be very useful to readers of Snell." — Laiu Times. 
 " This is an admirable analysis of a good treatise ; read with Snell, this little book will be found very 
 profitable lo he student." — Laiu Journal. 
 
 In 8yo, price 2J., sewed, 
 
 QUESTIONS ON EQUITY. 
 
 FOR STUDENTS PREPARING FOR EXAMINATION, 
 
 FOUNDED ON THE NINTH EDITION OF 
 
 SNELL'S "PRINCIPLES OF EQUITY." 
 By W. T. WAITE, 
 
 BAKEISTER-AT-LAW, HOLT SCHOLAR OF THE HONOURABLE SOCIETY OF GRAV'S INK 
 
 Digitized by Microsoft® 
 
WORKS FOR LAW STUDENTS. 
 
 23 
 
 Second Edition, in one volume, 8vo, price i%s., cloth, 
 
 PRINCIPLES OF CONVEYANCING. 
 
 AN ELEMENTARY WORK FOR THE USE OF STUDENTS. 
 By henry C. DEANE, 
 
 OF Lincoln's inn, barrister-at-law, sometime lecturer to the incorporated law society 
 
 OF THE UNITED KINGDOM. 
 
 ^^JVe hope to see this book, like SnelVs Equity, a standard class-book in all Law Schools 
 where English law is taught,^'' — Canada Law Journal. 
 
 " We like the work, it is well written and is an 
 excellent student's book, and being only just pub- 
 lished, it has the great advantage of having in it all 
 the recent important enactments relating to convey- 
 ancing. It possesses also an excellent index." — 
 Lavs Students^ Journal. 
 
 *' Will be found of great use to students entering 
 upon the difficulties of Real Property Law. It has 
 an unusually exhaustive index covering some fifty 
 pages." — Law Thnes, 
 
 " In the parts which have been rewritten, Mr. 
 Deane has preserved the same pleasant style marked 
 by simplicity and lucidity which distinguished his 
 first edition. After ' Williams on Real Property,' 
 there is no book which we should so strongly 
 recommend to the student entering upon Real Pro- 
 perty Law as Mr. Deane's ' Principles of Convey- 
 ancing,' and the high character which the- first 
 edition attained has been fully kept up in this 
 second." — Laiv Journal. 
 
 Fourth Edition, in 8vo, price loj., cloth, 
 
 A SUMMARY OF THE 
 
 LAW & PRACTICE IN ADMIRALTY. 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW." 
 
 "The book is well arranged, and forms a good introduction to the subject." — Solicitors' Journal, 
 
 *' Itis, however, in our opinion, a well and carefully written little work, and should be in the hands of 
 
 every student who is taking up Admiralty Law at the Final." — Laiu Students' Journal. 
 
 '•' Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. 
 
 present "work will doubtless be received with satisfaction equal to that with which his previous ' Sumi 
 
 has hcen met."— Ojir/ord and Cajjidridge U?idergraduates' Journal. 
 
 The 
 ummary' 
 
 Fourth Edition, in 8vo., price %s., cloth, 
 A SUMMARY OF THE 
 
 LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. 
 
 FOR THE USE OF STUDENTS. 
 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "A SUMMARY OF COMPANY LAW 
 THE LAW AND PRACTICE IN ADMIRALTY." 
 
 AND A SUMMARY OF 
 
 " His obiect has been, as he tells us in his preface, to give the student and general reader a fai^r outline 
 of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by 
 wUch it is enforced, and the procedure by which these Courts are regulated. We think the book well 
 fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions 
 contained in it."— Bar Examination Journal. 
 
 Fourth Edition, in 8vo, price Ts. 6d., cloth, 
 
 AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, 
 
 FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. 
 By J. CARTER HARRISON, Solicitor. 
 
 " The work is considerably enlarged, and we think improved, and will be found of great assistance to 
 students."— Z^a™ StudenW jfoumal. 
 
 Digitized by Microsofl® 
 
24 WORKS FOR LAW STUDENTS. 
 
 Seventh Edition, In one volunle, 8vo, price 20J., cloth, 
 
 PRINCIPLES OF THE COMMON LAW. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 SEVENTH EDITION. 
 
 \\Y JOHN INDERMAUR, Solicitor, 
 
 AUTHOR OF " A MANUAL OF THE PRACTICE OF THE SUPREME COURT, ' 
 " EPITOMES OF LEADING CASES," AND OTHER WORKS. 
 
 "The Student will find in Mr. Indermaur's book a safe and clear guide to the Prin- 
 ciples of Common Law." — Law Journal, 1892. 
 
 "The present edition of this elementary treatise has been in general edited with praise- 
 worthy care. The provisions of the statutes affecting the subjects discussed, which have 
 been passed since the publication of the last edition, are clearly summarised, and the effect 
 of the leading cases is generally very well given. In the difficult task of selecting and 
 distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading 
 principles are clearly brought out, and very judiciously illustrated."— Solicitors' Journal. 
 
 " The work is acknowledged to be one of the best written and most useful elementary 
 works for Law Students that has been published." — Law Times. 
 
 " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- 
 pilation on its first appearance has been justified by a demand for a second edition."— 
 Law Magazine, 
 
 "We were able, four years ago, to praise the first edition of Mr. Indermaur's book as 
 likely to be of use to students in acquiring the elements of the law of torts and contracts. 
 The second edition maintains the character of the book."— ZaTt/ Journal. 
 
 " Mr. Indermaur renders even law light reading. He not only possesses the faculty 
 of judicious selection, but of lucid exposition and felicitous illustration. And while his 
 works are all thus characterised, his ' Principles of the Common Law ' especially displays 
 those features. That it has already reached a second edition, testifies that our estimate of 
 the work on its first appearance was not unduly favourable, highly as we then signified 
 approval ; nor needs it that we should add anything to that estimate in reference to the 
 general scope and execution of the work. It only remains to say, that the present edition 
 evinces that every care has been taken to insure thorough accuracy, while including all 
 the modifications in the law that have taken place since the original publication ; and that 
 the references to the Irish decisions which have been now introduced are calculated to 
 render the work of greater utility to practitioners and 'students, iolA English and Irish." 
 — /risk Law Times. 
 
 '• This work, the author tells us in his Preface, is written mainly with a view to the 
 examinations of the Incorporated Law Society ; but we think it is likely to attain a wider 
 usefulness. It seems, so far as we can judge from the parts we have examined, to be a 
 careful and clear outline of the principles of the common law. It is very readable ; and 
 not only students, but many practitioners and the public might benefit by a perusal of Us 
 pages." — Solicitors' Journal. 
 
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WORKS FOR LAW STUDENTS. 25 
 
 Sixth Edition, in 8vo, price i+r., cloth, 
 
 A MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, 
 
 IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS. 
 
 Sixth Edition, adapted to the new Rules of Court of November, 1893. 
 Intended for the use of Students and the Profession. 
 By John Indermaur, Solicitor, 
 
 " Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice ' at a very 
 opportune time, for he has been able to incorporate the effect of the new Rules of Court which came into 
 force last November, the Trustee Act, 1893, and Rules, and the Supreme Court Fund Rules, 1893, as 
 well as that of other Acts of earlier date. A very complete revision of the work has, of course, been 
 necessary, and Mr. Indermaur, assisted by Mr. Thwaites, has effected this with his usual thoroughness 
 and careful attention to details. The book is well known and valued by students, but practitioners also 
 find it handy in many cases where reference to the bulkier ' White Book ' is unnecessary." — Law Times, 
 February, 1894. 
 
 " This well-known students' book may very well be consulted by practitioners, as it contains a considerable 
 amount of reliable information on the practice of the Court. It is written so as to include the new Rules, 
 and a supplemental note deals with the alterations made in Rule XI. by the Judges in January last. The 
 praise which we gave to previous editions is quite due to the present issue." — Law Journal^ February, 1894. 
 
 Eighth Edition, in 8vo, in the press, 
 
 AN EPITOME OF LEADING COMMON LAW CASES; 
 
 WITH SOME SHORT NOTES THEREON. 
 
 Chiefly intended as a Guide to " Smith's Leading Cases." By John Indermaur, 
 
 Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). 
 
 *' We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- 
 maur, Solicitor. The first edition of this work was published in February, 1873, the second in April, 1874; 
 and now we have a third edition dated September, 1875. No better proof of the value of this book can be 
 furnished than the fact that in less than three years it has reached a third edition." — Law yourtial. 
 
 Seventh Edition, in 8vo, price (ss., cloth, 
 
 AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; 
 
 WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. 
 By John Indermaur, Solicitor, Author of "An Epitome of Leading 
 Common Law Cases. " 
 " We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- 
 ancing and Equity Cases. The work is very well done." — Lanu fiities. 
 
 "The Epitome well deserves the continued patronage of the class — Students — for whom it is especially 
 intended. Mr. Indermaur will soon be known as the ' Students' Friend.' " — Ca?iada Law Jour7taL 
 
 Sixth Edition, 8vo, price (>s., cloth, 
 
 THE ARTICLED CLERK'S GUIDE TO AND 
 SELF-PREPARATION FOR THE FINAL EXAMINATION. 
 
 Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, 
 
 Test Questions, &c., and intended for the use of those Articled Clerks who read 
 
 by themselves. By John Indermaur, Solicitor. 
 
 "In this edition Mr. Indermaur extends his counsels to the whole period from the Intermediate 
 
 examination to the Final. His advice is practical and sensible : and if the course of study he recommends 
 
 is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient 
 
 to carry him through the Final Examination." — Sol icitors^ Journal. 
 
 Now ready. Fifth Edition, in 8vo, price lar., cloth, 
 
 THE ARTICLED CLERK'S GUIDE TO AND SELF- 
 PREPARATION FOR THE INTERMEDIATE EXAMINATION, 
 
 As it now exists on Stephen's Commentaries. Containing a complete course of Study, 
 vdth Statutes, Questions, and Advice. Also a complete Selected Digest of the 
 whole of the Questions and Answers set at the Examinations on those parts of 
 " Stephen " now examined on, embracing a period of fourteen and a half years 
 (58 Examinations), inclusive of the Examination in April, 1894, &c. &c., and 
 intended for the use of all Articled Clerks who have not yet passed the Inter- 
 mediate Examination. By John Indermaur, Author of " Principles of Com- 
 mon Law," and other works. 
 
 In 8vo, 1875, price 6j., cloth, 
 
 THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, 
 
 AND THE RULES THEREUNDER: 
 
 Being a book of Questions and Answers intended for the use of Law Students. 
 
 By John Indermaur, Solicitor. 
 
 Digitized by Microsoft® 
 
26 WORKS FOR LAW STUDENTS. 
 
 Fifth Edition, in crown 8vo, price 12s. 6d., cloth, 
 
 AN EPITOME OF CONVEYANCING STATUTES, 
 
 Extending from 13 Edw. I. to the End of 55 & 56 Victori/B. Fifth 
 Edition, with Short Notes. By George Nichols Marcy, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition. In 8vo, price 26s., cloth, 
 
 A NEW LAW DICTIONARY, 
 
 AND INSTITUTE OF THE WHOLE LAW ; 
 
 EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE 
 AUTHORITIES, CASES, AND STATUTES. 
 
 SECOND EDITION, revised throughout, and considerably enlarged. 
 
 By ARCHIBALD BROWN, 
 
 M.A. BUIN. AND OXON,, AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARKISTKK-AT-LAW ; AU'THOK OF 
 THE "law of fixtures," "ANALYSIS OF SAVIGNV's OBLIGATIONS IN ROMAN LA flr," ETC. 
 
 Reviews of the Second Edition. 
 
 ^' So far as we have been able to examine the work, it seems to have been most carefully 
 and accurately executed, the present Edition, besides containing much new matter, having 
 been thoroughly revised in consequence of the recent changes in the law ; and we have no 
 doubt whatever that it will be found extremely useful, not only to students and practitioners, 
 but to public men, and men of letters." — Irish Law Times. 
 
 "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the 
 fudicature Acts, and it now constitutes a very useful work to put into the hands of any 
 student or articled clerk, and a work which the practitioner will find of value for reference, " 
 — Solicitors' Journal. 
 
 "It will prove u, reliable guide to law students, and u, handy book of reference for 
 practitioners." — Law Times. 
 
 In royal 8vo, price 5^., cloth, 
 
 ANALYTICAL TABLES 
 
 OF 
 
 THE LAW OF REAL PROPERTY; 
 
 Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. 
 By C. J. TARRING, of the Inner Temple, Barrister-at-Law. 
 
 CONTENTS. 
 
 Table I. Tenures. 
 
 , II. Estates, according to quantity of 
 
 Tenants' Interest. 
 „ III. Estates, according to the time at 
 which the Interest is to be enjoyed. 
 ,, IV. Estates, according to the number and 
 connection of the Tenants. 
 
 Table V. Uses. 
 
 „ VI. Acquisition of Estates in land of 
 
 freehold tenure. 
 ,, VII. Incorporeal Hereditaments. 
 ,, VIII. Incorporeal HereditaMents. 
 
 "Great care and considerable skill have been shown in the compilation of these tables, which will be 
 found of much service to students of the Law of Real Property."— Z,aw Times. 
 
 Digitized by Microsoft© 
 
WORKS FOR LAW STUDENTS. 27 
 
 Sixth Edition, in 8vo, price zos., cloth, 
 
 PRINCIPLES OF THE CRIMINAL UW, 
 
 INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR 
 THE USE OF STUDENTS AND THE PROFESSION. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), 
 
 AUTHOR OF "a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN.*' 
 
 SIXTH EDITION. 
 By C. L. ATTENBOROUGH, of the Inner Temple, Barrister- at-Law. 
 
 REVIEWS. 
 
 "The chaiacteristic of the present Edition is the restoration to the book of the character of 'a concise 
 exposition ' proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences 
 which had arisen in successive editions, and has improved the work both as regards terseness and clearness 
 of exposition. In both respects it is now an excellent student's book. The text is very well broken up 
 into headings and paragraphs, with short marginal notes— the importance of which, for the convenience 
 of the student, is too often overlooked." — Solicitors' journal. 
 
 " We think the book— always a favourite with students— has got a new lease of life, and will now prove 
 the only text-book which most men will care to study until they get beyond the examination stage of their 
 existence. ... On the whole our verdict is that the new Edition is distinctly a success, and we have no 
 hesitation in commending it to the student as the best text-book that exists for his purposes. '—Law 
 Students' Journal. 
 
 " The favourable opinion we expressed of the first edition of this work appears to have 
 been justified by the reception it has met with. Looking through this new Edition, wt see 
 no reason to modify the praise we bestowed on the former Edition. The recent cases have 
 been added and the provisions of the Summary Jurisdiction Act are noticed in the chapter 
 relating to Summary Convictions. The book is one of the best manuals of Criminal Law 
 for the student."— Solicitors' Journal. 
 
 " There is no lack of Works on Criminal Law, but there was room for such a useful 
 handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous 
 labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present 
 work qualifications well adapted to secure the successful accomplishment of the object which 
 he had set before him. That object is not an -ambitious one, for it does not pretend to soar 
 above utility to the young practitioner and the student. For both these classes, and for the 
 vet wider class who may require a book of reference on the subject, Mr. Hams has produced 
 a clear and convenient Epitome of the Law. A noticeable feature of Mr Harris s work, 
 which is likely to prove of assistance both to the practitioner and the student, consists of a. 
 Table of Offences with their legal character, their punishment, and the statute under which 
 it is inflicted, together with a reference to the pages where a Statement of the Law will be 
 found."— L\-vt Magazine and Review. 
 
 "This work ourports to contain ' a concise exposition of the nature of crime, the various offences punish- 
 able bvth^EnS law, the law of criminal procedure, and the law of summary convictions,' with tables 
 of offences pSiishmenTs, and statutes. The work is divided into four books Book I treats of crime,, its 
 dii^Sons and essentkls; of persons capable of committing crimes; and of prmcipals and accessories 
 PMk iT deals wfth offences of a pubhc nature ; offences against private persons ; and offences against the 
 
 Sue oToffenc's at the etd of ?Ae volume'ls most useful, and there is a very full index. Altogether we 
 must congratulate Mr. Harris on his adventure. -La-m youmal. 
 
 "Mr Harris has undertaken a work, in our opinion, so much needed that he might 
 diminish its bulk in the next edition by obliterating the apologetic preface. The appearance 
 Tm volume is as well timed as its execution is satisfactory The author has shown an 
 IbiHtv of omission which is a good test of skill, and from the overwhelming mass of the 
 crh^nilZw he has discreetly selected just so much on y as a learner needs to know and 
 h^ presented it in terms which render it capable of being easily taken into the mmd. - 
 Solicitors' Journal. 
 
 DiyilUtid by Micmaoft® 
 
28 WORKS FOR LAW STUDENTS. 
 
 Second Edition, in crown 8vo, price Sj. ()d., cloth, 
 
 THE STUDENTS' GUIDE TO BANKRUPTCY; 
 
 Keing a Complete Digest of the Law of Bankruptcy in the shape of Questions and 
 Answers, and comprising all Questions asked at the Solicitors' Final Examinations 
 in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since 
 that Act. By John Indermaur, Solicitor, Author of " Principles of Common 
 Law," &c. &c. 
 
 In l2mo, price ^s. td., cloth, 
 
 A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, 
 
 FOR THE USE OF LAWYERS, LAW STUDENTS, AND THE PUBLIC. 
 
 Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale generally. Part II.— 
 Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction 
 thereof. Part III.— Of the Effects of Bills of Sale as against Creditors. Part IV. 
 — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. 
 By John Indermaur, Solicitor. 
 
 " The object of the book is thoroughly practical. Those who want to be told exactly what to do and 
 where to go when they are registering a bill of sale will find the necessary information in this little book." 
 — Law Journal. 
 
 Second Edition, in 8vo, price 4^., cloth, 
 
 A COLLECTION OF LATIN MAXIMS & PHRASES. 
 
 LITERALLY TRANSLATED. 
 
 INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. 
 
 Second Edition, by J. N. COTTERELL, Solicitor. 
 
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 in their reading." — haw Journal. 
 
 In one volume, 8vo, price <js. , cloth, 
 
 LEADING STATUTES SUMMARISED, 
 
 FOR THE USE OF STUDENTS. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD ; 
 AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." 
 
 Second Edition, in 8vo, enlarged, price 6j., cloth, 
 
 LEADING CASES IN CONSTITUTIONAL LAW 
 
 Briefly Stated, with Introduction and Notes. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. 
 
 _" Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- 
 stitutional Law, that is to say, all (questions as to the rights or authority of the Crown or persons under it, 
 as regards not merely the constitution and structure given to the governing body, but also the mode in 
 which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a very clear and 
 intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; 
 and then follows a summary of leading cases." — Saturday Review. 
 
 '* Mr. Thomas gives a sensible introduction and a brief epitome of the familiar eading cases." — Law 
 Times. 
 
 In 8vo, price 8^., cloth, 
 
 AN EPITOME OF HINDU LAW CASES. With 
 
 Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, 
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 Civil Service, late Judge and Sessions Judge of Tanna. 
 
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STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 29 
 
 Second Edition, in crown 8vo, price izs. dd., cloth, 
 
 THE BANKRUPTCY ACT, 1883, 
 
 With Notes of all the Cases decided under the Act ; 
 The consolidated RULES and FORMS, 1886 ; The Debtors Act, 1869, so 
 
 FAR AS applicable TO BANKRUPTCY MATTERS, WITH RuLES AND FORMS 
 thereunder ; THE BiLLS OF SaLE AcTS, 1878 AND 1882 ; 
 Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, 
 Fees, and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High 
 Court ; and a Copious Index. 
 
 By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A., 
 
 SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., BAREISTER-AT-LAW. 
 
 Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law. 
 
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 Part I., price "js. 6d., sewed, 
 
 LORD WESTBURY'S DECISIONS IN THE 
 
 EUROPEAN ARBITRATION. Reported by Francis S. Reilly, 
 
 of Lincoln's Inn, Barrister-at-Law. 
 
 Parts I., II., and III., price 25J., sewed, 
 
 LORD CAIRNS'S DECISIONS IN THE ALBERT 
 
 ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, 
 Barrister-at- Law. 
 
 Second Edition, in royal 8vo, price 30^-., cloth, 
 A TREATISE ON 
 
 THE STATUTES OF ELIZABETH AGAINST 
 FRAUDULENT CONVEYANCES. 
 
 The Bills of Sale Acts 1878 and 1882 and the LAW OF VOLUNTARY 
 DISPOSITIONS OF PROPERTY. 
 
 By the late H. W. MAY, B.A. (Ch. Ch. Oxford). 
 
 Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, 
 of the Inner Temple, Barrister-at-Law ; Editor of the " Married Women's 
 Property Acts," Sth edition, by the late J. R. Griffith. 
 
 "Mr. Worthington's work appears to have been 
 conscientious and exhaustive." — Saturday Review. 
 
 ** Examining Mr. May's hook, we find it con- 
 structed with an intelligence and precision which 
 
 " In conclusion, we can heartily recommend this 
 book to our readers, not only to those who are in 
 large practice, and who merely want a classified 
 list of cases, but to those who have both the desire 
 and the leisure to enter upon a systematic study of 
 our law." — Solicitors' JourTial. 
 
 "As Mr. Worthington points out, since Mr. May 
 wrote, the 'Bills of Sale Acts' of 1878 and 1882 
 have been passed ; the ' Married Women's Property 
 Act, 1882 ' (making settlements by married wonien 
 void as against creditors in cases in which similar 
 settlements by a man would be void), and the 
 ' Bankruptcy Act, 1883.' These Acts and the deci- 
 sions upon them have been handled by Mr. Worth- 
 ington in a manner which shows that he is master 
 of his subject, and not a slavish copyist of sections 
 and head-notes, which is a vicious propensity of 
 many modem compilers of text-books. His lable 
 of Cases (with reference to all the .reports), is 
 admirable, and his Index most exhaustive. —Law 
 
 "The results of the authorities appear to be 
 given well and tersely, and the treatise wilL we 
 think, be found a convenient and trustworthy book 
 of reference."— inJf Journal. 
 
 render it entirely worthy of being accepted as a 
 guide in this confessedly difficult subject. The 
 subject is an involved one, but with clean and clear 
 handling it is here presented as clearly as it could 
 be. . . . On the whole, he has produced a very 
 useful book of an exceptionally scientific character." 
 —rSolicitors* jfoitmal, 
 
 " The subject and the work are both very good. 
 The former is well chosen, new, and interesting ; 
 the latter has the quality which always distin- 
 guishes original research from borrowed labours." 
 — American Law Review. 
 
 "We are happy to welcome his (Mr. May's) work 
 as an addition to the, we regret to say, brief cata- 
 logue of law books conscientiously executed. We 
 can corroborate his own description of his labours. 
 ' that no pains have been spared to make the book 
 as concise and practical as jjossible, without doing 
 so at the expense of perspicuity or by the omission 
 of any important points.'" — Law Tivies. 
 
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30 
 
 STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, medium 8vo, price 38^., cloth ; or in half-roxburgh, 42^., 
 
 A HISTORY OF THE FORESHORE 
 
 AND THE LAW RELATING THERETO. 
 
 With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's 
 "De Jure Maris," and the Third Edition of Hall's Essay on the 
 
 RIGHTS OF THE CROWN IN THE SEA-SHORE. 
 
 With Notes, and an Appendix relating to Fisheries. 
 
 By STUART A. MOORE, F.S.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "This work is nominally a third edition of the 
 late Mr. Hall's essay on the rights of the Crown in 
 the Sea-shore, but in reality is an absolutely new 
 production, for out of some goo odd pages Hall's 
 essay takes up but 227. Mr. Moore has written a 
 book of great importance, which should mark an 
 epoch in the history of the rights of the Crown and 
 the subject in the litus maris ^ or foreshore of the 
 kingdom. Hall's treatise (with Loveland's notes) is 
 set out with fresh notes by the present editor, who 
 is anything but kindly disposed towards his author, 
 for his notes are nothing but a series of exposures 
 of what he deems to be Hall's errors and misrepre 
 sentations. Mr. Moore admits his book to be a 
 brief for the opposite side of the contention sup- 
 ported by Hall, and a more vigorous and argu- 
 mentive treatise we have scarcely ever seen. Its 
 arguments are clearly and broadly disclosed, and 
 supported by a wealth of facts and cases which 
 show the research of the learned author to have 
 been most full and elaborate. . . . There is no 
 doubt that this is an important work, which must 
 have a considerable influence on that branch of the 
 law with which it deals. That law is contained in 
 ancient and most inaccessible records ; these have 
 now been brought to light, and it may well be 
 that important results to the subject may flow 
 therefrom. The Profession, not to say the general 
 public, owe the learned author a deep debt of 
 gratitude for providing ready to hand such a 
 
 wealth of materials for founding and building up 
 arguments. Mr. Stuart Moore has written a work 
 which must, unless his contentions are utterly un- 
 founded, at once become the standard text-book on 
 the law of the Sea-shore." — Law Timis, Dec. ist. 
 
 " Mr. Stuart Moore in his valuable work on the 
 Foreshore." — The Times. 
 
 *' Mr. Stuart Moore's work on the title of the 
 Crown to the land around the coast of England 
 lying between the high and low water mark is 
 something more than an ordinary law book. It is 
 a histoiy, and a very interesting one, of such land 
 and the rights exercised over it from the earliest 
 limes to the present day ; and a careful study of 
 the facts contained in the book and of the argu- 
 ments brought forward can scarcely fail to convince 
 the reader of the inaccuracy of the theory, now so 
 constantly put forward by the Crown, that without 
 the existence of special evidence to the contrary, 
 the land which adjoins riparian property, and 
 which is covered at high tide, belongs to the 
 Crown and not to the owner of the adjoining 
 manor. The list which Mr. Moore gives of places 
 where the question of foreshore has been already 
 raised, and of those as to which evidence on the 
 subject exists amongst the public records, is valu- 
 able, though by no means exhaustive ; and the 
 book should certainly find a place in the library of 
 the lord of every riparian manor." — Morning Post. 
 
 In one volume, 8vo, price 12^., cloth, 
 A TREATISE ON THE LAW RELATING TO THE 
 
 POLLUTION AND OBSTRUCTION OF WATER COURSES 
 
 Together with a Brief Summary of the Various Sources of Rivers 
 
 Pollution. 
 
 By clement HIGGINS, M.A., F.C.S., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "As a compendium of the law upon a special 
 and rather intricate subject, this treatise cannot 
 but prove of great practical value^ and more 
 especially to those who have to advise upon the 
 institution of proceedings under the Rivers Pollu- 
 tion Prevention Act, 1B76, or to adjudicate upon 
 those proceedings when brought." — Irish Law 
 Times. 
 
 "We can recommend Mr. Higgins' Manual as 
 the best guide we possess." — Public Health. 
 
 "County Court Judges, Sanitary Authorities, 
 and Riparian Owners will find in Mr. Higgins' 
 Treatise a valuable aid in obtaining a clear notion 
 of the Law on the Subject. Mr. Higgins has 
 accomplished a work for which he will readily be 
 recognised as having special fitness on account of 
 
 his practical acquaintance both wi'rh the scientific 
 and the legal aspects of his subject." — Laiv Maga- 
 zine and Review. 
 
 "The volume is very carefully arranged through- 
 out, and will prove of great utility both to miners 
 and to owners of land on the banks of rivers." — 
 The Mining Journal. 
 
 "Mr. Higgins writes tersely and clearly, while 
 his facts are so well arranged that it is a pleasure 
 to refer to his book for information ; and altogether 
 the work is one-which will be found very useful by 
 all interested in the subject to which it relates." — 
 Engineer. 
 
 ' A compact and convenient manual of the law 
 on the subject to which it relates." — Solicitors' 
 Journal. 
 
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STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 31 
 
 In 8vo, Fifth Edition, price 2%s., cloth. 
 
 MAYNE'S TREATISE 
 
 ON 
 
 THE LAW OF DAMAGES. 
 
 FIFTH EDITION. 
 REVISED AND PARTLY REWRITTEN. 
 
 BY 
 
 JOHN D. MAYNE, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW ; 
 AND 
 
 His Honor Judge LUMLEY SMITH, Q.C. 
 
 " ' Mayne on Damages ' has now become almost a classic, and it is one of the books which 
 we cannot afford to have tip to date. We are therefore pleased to have a new Edition, and 
 one so well written as that before us. With the authors we regret the increasing size of the 
 volume, but bulk in such a case is better than incompleteness. Every lawyer in practice 
 should have this book, full as it is of practical learning on all branches of the Common Law. 
 The work is unique, and this Edition, like its predecessors, is indispensable." — Law Journal, 
 April, 1894. 
 
 •* Few books have been better kept up to the current law than this treatise. The earlier part . 
 of the book was remodelled in the last edition, and in the present edition the chapter on 
 Penalties and Liquidated Damages has been rewritten, no doubt in consequence of, or with 
 regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in Wallis v. 
 Smith (31 W. R. 214 ; L. R. 21 Ch. D. 243}. The treatment of the subject by the authors is 
 admirably clear and concise. Upon the point involved in Wallis v. Smith they say : ' The 
 result is that an agreement with various covenants of different importance is not to be governed 
 by any inflexible rule pecuhar to itself, but is to be dealt with as coming under the general rule, 
 that the intention of the parties themselves is to be considered. If they have said that in the 
 case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless 
 it would lead to such an absurdity or injustice that it must be assumed that they did not mean 
 what they said.' This is a very fair summary of the judgments in Wallis v. Smith, especially 
 of that of Lord Justice Cotton ; and it supplies the nearest approach which can be given at 
 present to a rule for practical guidance. We can heartily commend this as a carefully edited 
 edition of a thoroughly good book." — Solicitois' Journal. 
 
 * * During the twenty-two years which have elapsed since the publication of this well-known 
 work, its reputation has been steadily growings and it has long since become the recognised 
 authoiity on the i7nportant subject of which it treats." — Law Magazine and Review, 
 
 "This edition of what has become a standard 
 work has the advantage of appearing under the 
 supervision of the original author as well as of 
 Mr. Lumiey Smith, the editor of the second edition. 
 The result is most satisfactory, Mr. Lumiey 
 Smith's edition was ably and conscientiously pre- 
 pared, and we are glad to find that the reader still 
 enjoys the benefit of his accuracy and learning. 
 At the same time the book has doubtless been 
 improved by the reappearance of its author as co- 
 editor. The earlier part, indeed, has been to a 
 considerable extent entirely rewritten. ^ 
 
 " Mr. Mayne's remarks on damages in actions of 
 tort are brief. We agree with him that in such 
 actions the courts are governed by far looser prin- 
 ciples than in contracts ; indeed, sometimes it is 
 impossible to say they are governed by any prin- 
 ciples at all. In actions for injuries to the person or 
 reputation, for example, a judge cannot do more 
 than give a general direction to the jury to give 
 
 what the facts proved in their judgment required. 
 And, according to the better opinion, they may give 
 damages 'for example's sake,' and mulct a rich 
 man more heavily than a poor one. In actions for 
 injuries to property, however, ' vindictive ' or 
 'exemplary' damages cannot, except in very rare 
 cases, be awarded, but must be limited, as in con- 
 tract, to the actual harm sustained. 
 
 " It to needless to comment upon the arrangement 
 of the subjects in this edition, in which no alteration 
 has been made. The editors modestly express a 
 hope that all the English as well as the principal 
 Irish decisions up to the date have been included, 
 and we believe from our own examination that the 
 hope is well founded. We may regret that, warned 
 by the growing bulk of the book, the editors have 
 not included any fresh American cases, but we feel 
 that the omission was unavoidable. We should add 
 that the whole work has been thoroughly revised," — 
 Solicitors' Journal. 
 
 ** This text-book is so well know7t, not only as the highest authority 07t the subject treated 
 of but as one of the best text-books ever written, that it would be idle for us to speak of tt 
 in the words of commendation that it deserves. It is work that no practising lawyer can 
 do without."^Cx-^x-DA. Law Journal. 
 
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32 STEVENS &- BAYNES, BELL YARD, TEMPLE BAR. 
 
 In crown 8vo, price 4^. dd., cloth, 
 
 ABSTRACT DRAWING. Containing Instructions on 
 
 the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. Scott, 
 Solicitor. 
 
 " This little book is intended for the assistance of those who have the framing of abbtracts of title 
 entrusted to their care. It contains a number of useful rules, and an illustrative appendix, "—Zaw Tiiites. 
 
 " A handy book for all articled clerks." — Law Students' Jotinial. 
 
 " Solicitors who have articled clerks would save themselves much trouble if they furnished their clerks 
 with a copy of this little book before putting them on to draft an abstract of a heap of title deeds." — I-,aw 
 Notes. 
 
 " The book ought to be perused by all law students and articled clerks." — Red Tape. 
 
 Second Edition, in crown 8vo, price 7-^.) cloth, 
 
 THE LAW RELATING TO CLUBS. 
 
 By the late JOHN WERTHEIMER, Barrister-at-Law. 
 Second Edition, by A. W. CHASTER, Barrister-at-Law. 
 
 "A convenient handbook, drawn up with great 
 judgment and perspicuity." — Morning Post. 
 
 " Both useful and interesting to those interested 
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 — Laiv journal. 
 
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 This excellent little treatise should lie on the table 
 of every club." — Pump Court. 
 
 In 8vo, price 2j-., sewed, 
 
 TABLE of the FOREIGN MEEOANTILE LAWS and CODES 
 
 in Force in the Principal States of EUROPE and AMERICA. By Charles 
 Lyon-Caen, Professeur agreg^ a la Faculte de Droit de Paris ; Professeur a 
 I'Ecole libre des Sciences politiques. Translated by NAPOLEON Argles, 
 Solicitor, Paris. 
 
 In 8vo, price \s., sewed, 
 
 A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- 
 ALITY AND MILITARY SERVICE, as affecting British Subjects. By A. 
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 In one volume, demy 8vo, price lOJ. dd., cloth, 
 
 PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, 
 
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 THE TRIAL OF ADELAIDE BARTLETT FOR 
 
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 In 8vo, price \os. 6d., cloth, 
 A REPORT OF THE CASE OF 
 
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 33 
 
 In 8vo, price 6s. 6d., cloth, 
 
 THE ANNUAL DIGEST OF MERCANTILE 
 CASES FOR THE YEAR 1886. 
 
 Being a Digest of the Decisions of the English, Scotch and Irish Courts 
 ON Matters relating to Commerce. 
 
 By JAMES A. DUNCAN, M.A., LL.B., Trin. CoU., Camb., 
 
 AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
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 legal profession." — Liverpool Mercury. 
 
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 THE LAW AND PKAOTIOE OF ELECTION PETITIONS, 
 
 With an Appendix containing the Parliamentary Elections Acts, the Corrupt and 
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 Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister -at- Law. 
 
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 Vols. I., II., III., and IV., price 4/. 17^. 
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 IN ENGLAND AND IRELAND. 
 
 PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1868. 
 
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 %* Vol. IV. Parts ILL, IV. and V. Edited by]. S. Sandars, Barnsier-at-Law. 
 
 In 8vo, price 12s., cloith, 
 
 THE LAW OF FIXTURES, 
 
 IN THE PRINCIPAL RELATION OF 
 
 LANDLORD AND TENANT, 
 
 AND IN ALL OTHER OR GENERAL RELATIONS. 
 
 FOUR Til EDITION. 
 By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon. 
 
 OF THE MIDDLE TEMPLE, BARRISTEK-AT-LAW, 
 
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 to the Law of Ecclesiastical Fixtures and Dilapida- 
 tions. The book is worthy of the success it has 
 
 achieved." — Law Times. 
 
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 nality as for laboriousness." — Law loumal. 
 
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34 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 iStcbftts anJ) g^aSKfe' (Smea at %vfxmi» at Vat ffiarlj glfporUrjs. 
 SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. 
 
 In 8vo, 1876, price 4/. 4J., best calf binding, 
 
 SHOWER'S CASES IN PARLIAMENT 
 
 RESOLVED AND ADJUDGED UPON PETITIONS 6- WRITS OP ERROR. 
 
 FOURTH EDITION. 
 
 CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. 
 
 REVISED AND EDITED BY 
 
 RICHARD LOVELAND LOVELAND, 
 
 OF THE INNER TEMPLE, BARRISTEK-AT-LAW ; EDITOR OF " KELYNG'S CROWN CASES," AND 
 '* hall's essay on the rights of the crown in the SEASHORE." 
 
 " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, 
 Cooke, Cunningham, Brookes's New Cases, Choyce- Cases in Chancery, William Kelynge 
 and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases 
 in Parliament. 
 
 " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned 
 type, instead of being in the quarto, is in the more convenient octavo form, and contains 
 several additional cases not to be found in any of the previous editions of the work. 
 
 " These are all cases of importance, worthy of being ushered into the light of the 
 world by enterprising publishers. 
 
 " Shower's Cases are models for reporters, even in our day. The statements of the 
 case, the argumentsof counsel, and the opinions of the Judges, are all clearly and ably given. 
 
 "This new edition with an old face of these valuable reports, under the able editorship 
 of R. L. Loveland, Esq. , should, in the language of the advertisement, ' be welcomed by 
 the profession, as well as enable the custodians of public libraries to complete or add to 
 their series of English Law Reports.'" — Canada Law yournal. 
 
 BELLEWE'S CASES, T. RICHARD II. 
 
 In 8vo, 1869, price 3/. 3^., bound in calf antique, 
 
 LES ANS DU ROY RICHARD LE SECOND. 
 
 Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke. Per 
 Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original 
 Edition. 
 
 " No public library in the world, where English 
 law finds a place, should be without a copy of this 
 edition of Bellewe." — Canada Law Journal. 
 
 "We have here la. facsimile edition of Bellewe, 
 and it is really the most beautiful and admirable 
 reprint that has appeared at any time. It is a 
 perfect gem. of antique printing, and forms a most 
 interesting monument of our early legal history. 
 It belongs to the same class of works as the Year 
 Book of Edward I. and other similar works which 
 have been printed In our own time under the 
 auspices of the Master of the Rolls ; but is far 
 superior to any of them, and is in this respect 
 
 highly creditable to the spirit and enterprise^ of 
 private publishers. The work is an important link 
 in our legal history ; there are no year books of the 
 reign of Richard II., and Bellewe supplied the only 
 substitute by carefully extracting and collecting all 
 the cases he could find, and he did it in the most 
 convenient form — that of alphabetical arrangement 
 in the order of subjects, so that the work is a digest 
 as well as a book of law reports. It is in fact a 
 collection of cases of the reign of Richard II., 
 arranged according to their subjects in alphabetical 
 order. It is therefore one of the most intelligible 
 and interesting legal memorials of the Middle 
 Ages." — J^atx) Times. 
 
 CUNNINGHAM'S REPORTS. 
 
 In 8vo, 1871, price 3/. 3^,, calf antique, 
 Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal 
 for rendering the Laws of England clear and certain, humbly offered to the 
 Consideration ot both Houses of Parliament. Third edition, with numerous 
 Corrections. By Thomas Townsend Bucknill, Barrister-at-Law. 
 " The instructive chapter which precedes the 
 cases, entitled ' A proposal for rendering the Laws 
 of England clear and certain,' gives the volume a 
 
 degree of peculiar interest, independent of the value 
 of many of the reported cases. That chapter begins 
 with words which ought, for the information of 
 every people, to be printed in letters of gold. They 
 are as follows : ' Nothing conduces more to the ■ 
 
 peace and prosperity of every nation than good 
 laws and the due execution of fliem.' The history 
 of the civil law is then rapidly traced. Next a 
 history is given of English Reporters, beginning 
 with the reporters of the Year Books from i Edw. 
 HI. to 12 Hen. VIII. — being near 200 years — and 
 afterwards to the time of the author. "~Ca«a</a 
 Law Journal. 
 
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ST£VENS &■ HAYNES, BELL YARD, TEMPLE BAR. 35 
 
 cStebnia anb ijasnca' §,txxt& at Sleiiriitts of tlw (Earlg flcyOTtoa. 
 
 CHOYCE CASES IN CHANCERY. 
 
 In 8vo, 1870, price 2/. 2s., calf antique, 
 
 THE PKAOTIOE OF THE HIGH COUKT OF GHANGEEY. 
 
 With the Nature of the several Offices belonging to that Court. And the Reports of 
 many Cases wherein Relief hath been there had, and where denyed. 
 
 Aii'^*"'!^"'"?^' '" P?P='> 'yPs. and binding (like ' Bellewe's Cases ') is a fac-simile of the antique edition. 
 A]| who buy the one should buy.the at^^x"— Canada. Law Journal. 
 
 In 8vo, 1872, price 3/. t,s., calf antique, 
 
 SIR G. COOKE'S COMMON PLEAS REPORTS 
 
 IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. 
 
 The Third Edition, with Additional Cases and References contained in the Notes 
 taken from L. C. J. Eyre's MSB. by Mr. Justice Nares, edited by Thomas 
 TowNSEND BucKNiLL, of the Inner Temple, Barrister-at-Law. 
 " Law books never can die or remain long dead 
 so long as Stevens and Haynes are willing to con- 
 tinue them or revive them when dead. It is cer- 
 tainly surprising to see with what facial accuracy 
 
 an old volume of Reports may be produced by these 
 modern publishers, whose good taste is only equalled 
 by their enterprise." — Canada Law Journal. 
 
 BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. 
 
 In 8vo, 1873, price 4/. 4J., calf antique, 
 Brockets (Sir Robert) New Cases in the time of Henry VIII., Edward VI., and 
 Queen Mary, collected out of Brooke's Abridgement, and arranged under years, 
 with a table, together with March's (John) Translation (?/ Brooke's New Cases 
 in the time of Henry VIII., Edward VI., and Queen Mary, collected out of 
 Brooke's Abridgement, and reduced alphabetically under their proper heads and 
 titles, with a table of the principal matters. In one handsome volume. 8vo. 1873, 
 
 "Both the original and the translation having 
 long been very scarce, and the mispaging and other 
 errors in March's translation making a new and 
 corrected edition peculiarly desirable, Messrs. 
 
 Stevens and Haynes have reprinted the two books 
 in one volume uniform with the preceding volumes 
 of the series of Early Reports." — Canada Law 
 youmal. 
 
 KELYNGE'S (W.) REPORTS. 
 
 In 8vo, 1873, price 4/. 4J., calf antique, 
 Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 
 3rd to the 9th year of his late Majesty King George II. , during which time Lord 
 King was Chancellor, and the Lords Raymond and Hardwicke were Chief 
 Justices of England. To which are added, seventy New Cases not in the First 
 Edition. Third Edition. In one handsome volume. Svo. 1S73. 
 
 KELYNG'S (SIR JOHN) CROWN CASES. 
 
 In Svo, 1873, price 4/. 4?., calf antique, 
 Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King 
 Charles II., with Directions to Justices of the Peace, and others; to which are 
 added. Three Modern Cases, viz. , Armstrong and Lisle, the King and Plummer, 
 the Queen and Mawgridge. Third Edition, containing several additional Cases 
 never before printed, together with a Treatise upon the Law and Proceed- 
 ings IN Cases of High Treason, first published in 1793. The whole carefully 
 revised and edited by Richard Loveland Loveland, of the Inner Temple, 
 Barrister-at-Law. 
 "We look upon this volume as one of the most goodservicerendered by Messrs. StevensandHaynes 
 important and valuable of the unique reprints of to the profession. . . . Should occasion arise, the 
 Messrs. Stevens and Haynes. Little do we know Crown prosecutor, as well as counsel for the prisoner, 
 of the mines of legal wealth that lie buried in the will find in this volume a complete vade tnccutit of 
 old law books. But a careful examination, either of the law of high treason and proceedings in relation 
 the reports or of the treatise embodied in the volume thereto." — Canada Law Journal. 
 now before us, will give the reader some idea of the 
 
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36 STEVENS &' BAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in 8vo, price 26j. , cloth, 
 A CONCISE TREATISE ON 
 
 PRIVATE INTERNATIONAL JURISPRUDENCE, 
 
 BASED ON THE DECISIONS IN THE ENGLISH COURTS. 
 By JOHN ALDERSON FOOTE, 
 
 OF Lincoln's inn, barrister-at-law ; chancellor's legal medallist and senior whewell scholar 
 
 OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE 
 AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. 
 
 " This work seems to us likely to prove of considerable use to all English lawyers who have to deal with 
 questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty 
 years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly 
 increased in number, and it is full time that these decisions should be examined, and that the conclusions 
 to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done 
 this well." — Solicitors' Journal. 
 
 " Mr, Foote has done his work very well, and the book will be useful to all who have to deal with the 
 class of cases in which English law alone is not sufficient to settle the question." — Saturday Review ^ 
 March 8, 1879. 
 
 "The author's object has been to reduce into order the mass of materials already accumulated in the 
 shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a 
 framework of private international law, not from the dicta of jurists so much as from judicial decisions in 
 English Courts which have superseded them. And it is here, in compiling and arranging in a concise 
 form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good 
 fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : 
 while a table of cases and a general index will enable him to find what he wants without trouble." — 
 Standard.. 
 
 ' ' The recent decisions on points of international law (and there have been a large number since Westlake's 
 publication) have been well stated. So far as we have observed, no case of any importance has been 
 omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the 
 grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his 
 
 criticisms seem to us very just On the whole, we can recommend Mr. Foote's treatise as a useful 
 
 addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." 
 — TJie Journal of Jurisprudence and Scottish Law Magazine. 
 
 " Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those 
 of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend 
 it as one useful alike in Chambers and in Court." — Law Magazine and Review. 
 
 " Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book 
 
 is the ' Continuous Summary,' which occupies about thirty pages, and is divided into four parts — Persons^ 
 Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as 
 an attempt at codification. However that may be, they are a digest which reflects high credit on the 
 author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much 
 more than guide him. They will enable him to get such a grasp of the subject as will render the reading 
 of the text easy and fruitful." — Law Journal. 
 
 "This book is well adapted to be used both as a text-book for students and a book ol reference for 
 practising barristers." — Bar Examination Journal. 
 
 "This is a book which supplies the want which has long been felt for a really good modern treatise on 
 Private International Law adapted to the every-day requirements of the English Practitioner. The 
 whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 
 pages only — and the arrangement and development of the subject so well conceived and executed, that it 
 will amply repay perusal by those whose immediate object maybe not the actual decisions of a knotty 
 point but the satisfactory disposal of an examination paper."— Cjr/&n^ and Cambridge Undergraduates' 
 Journal. 
 
 "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in 
 
 our opinion, the best work on private international law which has appeared in the English language 
 
 The work is executed with much ability, and will doubtless be found of great value by all peraons who 
 have to consider questions on private international \Q.yr."—Athen<sum, 
 
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STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 37 
 
 THE 
 
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 AND 
 
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 Price FIVE SHILLINGS each Number. 
 
 No. CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) Novemhcr, 1875. 
 
 No. CCXIX. (Vol. I, 4th Series No. 11.) February, 1876. 
 
 N.B. — These two Numbers a7-e out of print. 
 
 No. CCXX. (Vol. I, 4th Series No. III.) For May, 1876. 
 
 No. CCXXI. (Vol. I,- 4th Series No. IV.) For August, 1876. 
 
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 November, 1892, to August, 1893. 
 
 Nos CCXC. to CCXCIII. (Vol. XVIIL, 4* Series, Nos. LXXIII. to LXXVL). 
 November, 1 893, to August, 1894. 
 
 Nos CCXCIV. to CCXC VII. (Vol. XIX., 4t'i Series, Nos. LXXVII. to LXXX.), 
 November, 1894, to August, 1895. 
 
 An Annual Subscription of 20s., paid in advance to the Publishers, will 
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38 STEVENS &■ HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fifth Edition, revised and enlarged, 8vo., price yis. net. 
 
 A TREATISE ON HINDU LAW AND USAGE. 
 
 By John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on 
 
 Damages," &c. 
 
 " A new work from the pen of so established an authority as Mr. Mayne cannot fail to he welcome to 
 the legal profession. In his present volume the late Officiating Advocate-General at Madras has drawn 
 upon the stores of his long experience in Southern India, and has produced a work of value alike to the 
 practitioner at the Indian Bar, or at home, in appeal cases, and to the scientific jurist. 
 
 "To all who, whether as practitioners or administrators, or as students of the science of jurisprudence, 
 desire a thoughtful and suggestive work of reference on Hindu Law and Usage, we heartily recommend 
 the careful perusal of Mr. Mayne 's valuable treatise." — Law Magazine and Review. 
 
 In 8vo, 1877, price 15J., cloth, 
 
 A DIGEST OF HINDU LAW, 
 
 AS ADMINISTERED IN THE COURTS of the MADRAS PRESIDENCY. 
 
 ARRANGED AND ANNOTATED 
 
 By H. S. CUNNINGHAM, M.A., Advocate-General, Madras. 
 
 DUT CH LAW . 
 
 In I Vol., 8vo., price 403-., cloth. 
 THE OPINIONS OF GROTIUS, As contained in the Hollandsche 
 
 Consultatien en Advijsen. Collated, translated, and annotated by D. P. de 
 Brhyn, B.A., LL.B., Ebden E.ssayist of the University of the Cape of Good 
 Hope ; Advocate of the Supreme Court of the Colony of the Cape of Good Hope, 
 and of the High Court of the South African Republic. With Facsimile Portrait 
 of Mr. Hugo de Groot. 
 
 In 2 Vols., Royal 8vo, price 90^., cloth, 
 
 VAN LEEUWEN'S COMMENTARIES ON THE ROMAN-DUTCH 
 
 LAW. Revised arid Edited with Notes in Two Volumes by C. W. Decker, 
 Advocate. Translated from the original Dutch by J. G. KoTZfi, LL.B., of the 
 Inner Temple, Barrister-at-Law, and Chief Justice of the Transvaal. With Fac- 
 simile Portrait of Decker from the Edition of 1780. 
 
 *»* Vol. II. can be had separately, price 50J. 
 In 8vo, price i :;.i. dd. , net. 
 
 VOET'S TITLES ON VJNDICATIONES AND INTERDICTA, 
 
 Or the Roman Dutch Law of Actions to Assert Rights of Property, including Injunc- 
 tions and Possessory Actions, translated into English with side-notes ; viz. , Book VI. 
 Titles I. to III., Book VII. Title VI., Book VIH. Title V., Book XX. Title IV., 
 and Book XLIII. Titles I., XVI. to XXXIII., of Voet's Commentary on the 
 Pandects, with a Scientific and General Introduction, Notes Explanatory of the 
 Roman Civil and Roman Dutch, and Engli.sh Law, Notes of Ceylon Enactments 
 and Practice, and Decisions of the Supreme Court, Ceylon, etc. By John J. 
 Casie Chitty, Barrister-at-Law, Advocate, High Court, Madras, and Supreme 
 Court, Ceylon. 
 
 In 8vo, price 4?j., cloth. 
 
 THE JUDICIAL PRACTICE OF THE COLONY OF THE CAPE 
 
 OP GOOD HOPE AND OP SOUTH AFRICA GENEEALLT. With suitable 
 
 and copious Practical Forms, subjoined to, and illustrating the Practice of the 
 several Subjects treated of. By C. H. Van Zyl, Attorney-at-Law, Notary 
 Public, and Conveyancer, etc. etc. 
 
 In Crown 8vo, price 31J. (>d., boards, 
 
 THE INTRODUCTION TO DUTCH JURISPRUDENCE OF 
 
 HUGO GEOTIUS, with Notes by Simon van Groenwegen van der Made, and 
 References to Van der Keesel's Theses and Schorer's Notes. Translated by 
 A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. 
 In i2mo, price 15^. net, boards, 
 
 SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. 
 
 Being a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and 
 intended to supply certain defects therein, and to determine some of the more 
 celebrated Controversies on the Law of Holland. By D. G. van der Kessel, 
 Advocate. Translated by C. A. LOKRNZ, Barrister-at-Law. Second Edition. 
 With a Biographical Notice of the Author by Professor J. De Wal, of Leyden. 
 
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STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 39 
 
 THE 
 
 58ar €iramination Annual 
 
 FOR 1894. 
 
 (In Continuation of the Bar Examination Journal.) 
 Price 3J. 
 
 EXAMINATION PAPERS, 1893. 
 
 FOR Pass, Honors, and Barstow Scholarship. 
 RESULT OF EXAMINATIONS. 
 NAMES OF SUCCESSFUL CANDIDATES. 
 EXAMINATION REGULATIONS FOR 1894. 
 A GUIDE TO THE BAR. 
 
 LEADING DECISIONS AND STATUTES OF 1894. 
 NEW BOOKS AND NEW EDITIONS. 
 
 W. D. EDWARDS, LL.B., 
 
 OF Lincoln's inn, barrister-at-lavv. 
 
 Now published, in 8vo, price \%s. each, cloth, 
 
 THE BAR EXAMINATION JOURNAL, VOLS. IV, v., 
 
 YI_ yil. VIII. , IX. & X. Containing the Examination Questions and Answers 
 from Easter Term, 1878, to Hilary Term, 1892, with List of Successful Candidates 
 at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- 
 lation of importance to Students, and other information. 
 
 By a. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. 
 
 Fifth Edition. In 8vo, price 9s. cloth, 
 
 A SUMMARY OF JOINT STOCK COMPANIES' LAI. 
 
 By T. EUSTACE SMITH, 
 
 OF THE INNER TEMPLE, BARRISTER- AT- LAW, 
 
 " The author of this handbook tells us that, when 
 an articled student reading for the final examina- 
 tion, he felt the want of such a work as that before 
 us wherein could be found the main prmciples of 
 law relating to joint-stock companies . . . Law 
 students may well read it ; for Mr. Smith has very 
 wisely been at the pains of giving his authority for 
 all his statements of the law or of practice, as apphed 
 to joint-stock company business usually transacted 
 in solicitors' chambers. In fact Mr Smith has 
 bv his little book offered a fresh inducement to 
 students to make themselves-at all events, to some 
 extent— acquainted with company law as a separate 
 branch of study."— Jl^aw Times. 
 
 "These pages give, in the words of the Preface, 
 ' as briefly and concisely as possible a general 
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 affecting companies.' The work is excellently 
 printed, and authorities are cited ; but in no case 
 IS the very language of the statutes copied. The 
 plan is good, and shows both grasp and neatness, 
 and, both amongst students and laymen, Mr. Smith's 
 book ought to meet a ready sale. "— Z-a^f Journal. 
 
 "The book is one from which we have derived 
 a large amount of valuable information, and we can 
 heartily and conscientiously recommend it to our 
 readers." — Oxford and Ca7nbridge Under^a- 
 duates Journal. 
 
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40 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, Sixth Edition, price gj., cloth, 
 
 THE MARRIED WOMEN'S PROPERTY ACTS ; 
 
 1870, 1874, 1882 and 1884, 
 
 With Copious and Explanatory Notes, and an Appendix of the Acts 
 relating to married women. 
 
 By Archibald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, 
 Barrister-at-Law. Being the Sixth Edition of The Married Women's Property 
 Acts. By the late J. R. Griffiths, B.A. Oxon., of Lincoln's Inn, Barrister- 
 at-Law. 
 
 " Upon the whole, we are of opinion that this is the best work upon the subject which has been issued 
 since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives 
 it at starting a considerable advantage over new books ; and this advantage has been well maintained by 
 the intelligent treatment of the Editor." — Solicitors' youmal. 
 
 "The notes are full, but anything rather than tedious reading, and the law contained in them is good, 
 and verified by reported cases. ... A distinct feature of the work is its copious index, practically a 
 summary of the marginal headings of the various paragraphs in the body of the text. This book is worthy 
 of all success." — Lam Magazine. 
 
 In Svo, price I2J., cloth, 
 
 THE LAW OF NEGLIGENCE. 
 
 SECOND EDITION. 
 
 By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate 
 of the Scotch Bar. 
 
 " No less an authority than the late Mr. Justice ' new edition brought down to date. It is indeed an 
 Willes, in his judgment in Oppenheim v. White able and scholarly treatise on a somewhat difficult 
 Lion Hotel Co.^ characterised Mr. Campbell's | branch of law, in the treatment of which the 
 
 ' Law of Negligence ' as a ' very good book ; ' and 
 since very good books are by no means plentiful, 
 when compared with the numbers of indifferent 
 ones which annually issue from the press, we think 
 the profession will be thankful to the author of this 
 
 author's knowledge of Roman and Scotch juris- 
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 practitioner." — Laiv Magazine. 
 
 In royal Svo, 
 
 AN INDEX TO TEN THOUSAND PRECEDENTS 
 
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 able on. Probates of Wills, Letters of Administration, Legacies, and Successions. 
 By Walter Arthur (^opinger, of the Middle Temple, Barrister-at-Law. 
 
 BIBLIOTHECA LEGUM. 
 
 In i2mo (nearly 400 pages), price 2s., cloth, 
 
 A CATALOGUE OF LAW BOOKS, inching aU the Reports 
 in the various Courts of England, Scotland, and Ireland ; with a Supplement to 
 December, 1884. By Henry G. Stevens and Robert W. Haynes, Law 
 Publishers. 
 
 In small 4to, price 2s., cloth, beautifully printed, with a large margin, for the 
 special use of Librarians, 
 
 A CATALOGUE OF THE REPORTS IN THE 
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 BETICAL &' CHRONOLOGICAL ORDER. By Stevens & Haynes, 
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^7EV£NS &- H AYNES, BELL YARD, TEMPLE BAR. 41 
 
 Second Edition, much enlarged, in 8vo, price 20s., c\oi\. 
 
 CHAPTERS ON THE 
 
 LAW RELATING TO THE COLONIES. 
 
 To which are appended Topical Indexes of Cases decided in the Privy Council 
 on Appeal from the Colonies, Channel Islands and the Isle of Man, and of 
 Cases relatmg to the Colonies decided in the English Courts otherwise than on 
 Appeal from the Colonies. 
 
 By CHARLES JAMES TARRING, M.A., 
 
 ASSISTANT JUDGE OF H.B.M. SUPREME CONSULAR COURT, CONSTANTINOPLE, AND H.M.'s CONSUL; 
 AUTHOR OF BRITISH CONSULAR JURISDICTION IN THE EAST," "a TURKISH GRAMMAR," ETC. 
 
 CONTENTS. 
 
 Table of Cases Cited. 
 Table of Statutes Cited. 
 
 Introductory.— Definition of a Colony. 
 Chapter I.— The laws to which the Colonies are 
 subject. 
 Section i. — In newly-discovered countries. 
 Section 2. — In conquered or ceded countries. 
 Section 3. — Generally. 
 Chapter II.— The Executive. 
 Section i. — The Governor. 
 
 A. — Nature of his office, power, and 
 
 _ duties. 
 B. — Liability to answer for his acts. 
 I.-Civilly." 
 
 I. a. — In the courts of his Govern- 
 ment. 
 b. — In the English courts. 
 2.— For what causes of action. 
 II. — Criminally. 
 Section 2. — The Executive Council. 
 Chapter III. — The Legislative Power. 
 Section i. — Classification of colonies. 
 Section 2. — Colonies with responsible govern- 
 ment. 
 Section 3. — Privileges and powers of colonial 
 Legislative Assemblies. 
 
 Chapter IV. — The Judiciary and the Bar. 
 Chapter V. — Appeals from the Colonies. 
 Chapter VI. — Imperial Statutes relating to the 
 Colonies. 
 Section i. — Imperial Statutes relating to the 
 
 Colonies in general. 
 Section 2. — Subj'ects of Imperial Legislation 
 relating to thfe Colonies in 
 general. 
 Section 3. — Imperial Statutes relating to par- 
 ticular Colonies. 
 
 Topical Index of Cases decided in the Privy 
 Council on appeal from the Colonies, the 
 Channel Islands, and the Isle of Man. 
 
 Index of some Topics of English Law dealt with 
 in the Cases. 
 
 Topical Index of Cases relating to the Colonies 
 decided in the English Courts otherwise than on 
 appeal from the Colonies. 
 
 Index of Names of Cases. 
 
 Appendix I. 
 — II. 
 
 General Index. 
 
 In 8vo, price ioj.j cloth, 
 
 THE TAXATION OF COSTS IN THE CROWN OFFICE. 
 
 comprising a collection of 
 BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; 
 
 including 
 
 COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, 
 
 AND ON APPEALS FROM INFERIOR COURTS ; 
 
 TOGETHER WITH 
 
 A TABLE OF COURT FEES, 
 
 and a scale of costs usually allowed to solicitors, on the taxation 
 
 of costs on the crown side of the queen's bench division 
 
 of the high court of justice. 
 
 By FREDK. H. short, 
 
 CHIEF CLERK IN THE CROWN OFFICE. 
 
 " This is decidedly a useful work on the subject of those costs which are liable to be taxed before the 
 Queen's Coroner and Attorney (for which latter name that of ' Solicitor' might now well be substituted), or 
 before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs 
 for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale 
 relating to bankruptcy prosecutions of especial use, as such costs are taxedin the Crown Office. The ' general 
 observg-tions ' constitute a useful feature in this manual," — Law Times. 
 
 "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work 
 particularly opportune, and it cannot fail to be welcomed by practitioners. Mr. Short gives, in the first 
 place, a scale of costs usually allowed to solicitors on the taxation of costs in the Crown Office, and then 
 bills of costs in various matters. These are well arranged and clearly printed." — Solicitors' yoiirrtal. 
 
 Digitized by Microsoft© 
 
42 STEVENS &- BAYNES, BELL YARD, TEMPLE BAR. 
 
 Just Published, in 8vo, price "js. dd., cloth, 
 
 BRITISH CONSULAR JURISDICTION IN THE EAST, 
 
 WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND 
 RELATING TO, CONSULAR COURTS AND CONSULS; 
 
 Also a Collection of Statutes concerning Consuls. 
 
 By C. J. tarring, M.A., 
 
 ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. 
 
 In one volume, 8vo, price is. 6d., cloth, 
 A COMPLETE TREATISE UPON THE 
 
 NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, 
 
 CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 
 
 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED 
 
 WITH CASES, &c. 
 
 And a Statement of the Principles of the Law upon those subjects, with a Time Table 
 
 and Copious Index. 
 
 By EDWARD MORTON DANIEL, 
 
 OF Lincoln's inn, barrister-at-law, associate of the institute of patent agents. 
 In 8vo, price 8j., cloth, 
 
 The TRADE MARKS REGISTRATION ACT, 1875, 
 
 And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an 
 Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, 
 together with practical Notes and Instructions, and a copious Index. By 
 Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. 
 
 Second Edition, in one volume, 8vo, price Yds., cloth, 
 A CONCISE TREATISE ON THE 
 
 STATUTE LAW OF THE LIMITATIONS OF ACTIONS. 
 
 With an Appendix of Statutes, Copious References to English, Irish, and American Cases, 
 and to the French Code, and a Copious Index. 
 
 By henry THOMAS BANNING, M.A., 
 
 OF THE INNER TEMPLE, BARRISTEK-AT-LAW. 
 
 "The work is decidedly valuable." — Law Tunes. 
 
 *' Mr, Banning has adhered to the plan of printing the Acts in an appendix, and making his book a 
 running treatise on the case-law thereon. The cases have evidently been investigated with care and 
 digested with clearness and intellectuality." — Law Journal. 
 
 In Svo, price \s., sewed, 
 AN ESSAY ON THE 
 
 ABOLITION OF CAPITAL PUNISHMENT. 
 
 Embracing more particularly an Enunciation and Analysis of the Principles of Law as 
 applicable to Criminals of the Highest Degree of Guilt. 
 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 Sixth Edition, in Svo, price 3IJ. 6^., cloth, 
 
 THE INDIAN CONTRACT ACT, No. IX., of 1872. 
 
 TOGETHER 
 
 WITE AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF 
 
 CONTENTS, APPENDIX, AND INDEX. 
 
 By H. S. CUNNINGHAM and H. H. SHEPHERD, 
 
 BARRISTERS-AT-LAW. 
 
 Digitized by Microsoft© 
 
STEFENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 43 
 
 Second Edition, in 8vo, price ly., cloth, 
 
 LEADING CASES and OPINIONS on INTERNATIONAL LAW 
 
 COLLECTED AND DIGESTED FROM 
 
 ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, 
 PARLIAMENTARY PAPERS, and other Sources. 
 
 NOTES and EXCURSUS, Containing the Views of the Text-Writers on 
 the Topics referred to, together with Supplementary Cases, Treaties, and Statutes; 
 and Embodying an Account of some of the more important International Trans- 
 actions and Controversies. 
 
 By PITT COBBETT, M.A., D.C.L., 
 
 OF gray's inn, BARRISTER-AT-LAW, professor of law, UNIVE^iSITY OF SYDNEY, N.S.W. 
 
 With 
 
 "The book is well arranged, the materials well 
 selected, and the comments to the point. Much 
 will be found in small space in this book."— Zaw 
 JoumaL 
 
 "The notes are concisely written and trust- 
 worthy The reader will learn from them a 
 
 great deal on the subject, and the book as a 
 whole seems a convenient introduction to fuller and 
 more systematic works." — Oxford Magazine. 
 
 Second Edition, in royal 8vo. lioo pages, price 45^., cloth, 
 
 STORY'S COMMENTARIES ON EQUITY 
 JURISPRUDENCE. 
 
 Second English Edition, from the Twelfth American Edition. 
 By W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.), 
 
 AND OF THE INNER TEMPLE, BARKISTER-AT-LAW. 
 
 " It is high testimony to the reputation of Story, 
 and to the editorship of Dr. Grigsby, that another 
 edition should have been called for. . . . The work 
 
 has been rendered more perfect by additional 
 indices." — La-w Times. 
 
 Second Edition, in 8vo, price 8j., cloth, 
 
 THE PARTITION ACTS, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided 
 Cases, and an Appendix containing Judgments and Orders. By W. Gregory 
 Walker, B.A., of Lincoln's Inn, Barrister-at-Law. 
 
 has carefully brought together the cases, and dis- 
 cussed the difficulties arising upon the language of 
 the diflferent provisions." — Solicitors^ Journal. 
 
 "This is a very good manual — practical, clearly 
 written, and complete. The subject lends itself 
 well to the mode of treatment adopted by Mr. 
 Walker, and in his notes to the various sections he 
 
 Second Edition, in 8vo, price 22s. cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE RELATING TO INFANTS. 
 
 By ARCHIBALD H. SIMPSON, M.A., 
 
 OF LINCOLN'S INN, BARRISTER-AT-LAW, AND FELLOW OF CHRIST's COLLEGE, CAMBRIDGE. 
 
 SECOND EDITION. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, 
 
 Barrister-at-Law. 
 
 "Mr. Simpson's book comprises the whole of the 
 law relating to infants, both as regards their per- 
 sons and their property, and we have not observed 
 any very important omissions. The author has 
 evidently expended much trouble and care upon 
 his work, and has brought together, in a concise 
 and convenieat form, the law upon the subject down 
 to the present time." — Solicitors' yournal. 
 
 " Its law is unimpeachable. We have detected 
 no errors, and whilst the work might have been 
 done more scientifically, it is, beyond all question, 
 a compendium of sound legal principles." — Law 
 Times. r i_ t 
 
 * ' Mr. Simpson has arranged the whole of the t.aw 
 relating to Infants with much fulness of detail^ and 
 
 yet in comparatively little space. The result is 
 due mainly to the businesslike condensation of his 
 style. Fulness, however, has by no means been 
 sacrificed to brevity, and, so far as we have been 
 able to test it, the work omits no point of any im- 
 portance, from the earliest cases to the last. In 
 the essential qualities of clearness, completeness, 
 and orderly arrangement it leaves nothmg to be 
 desired. 
 
 " Lawyers in doubt on any point of law or prac- 
 tice will find the information they require, if it can 
 be found at all, in Mr. Simpson's book, and a 
 writer of whom this can be said may congratulate 
 himself on having achieved a considerable success. 
 — Law Magazine^ February, 1876. 
 
 Digitized by Microsoft© 
 
44 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, 1877, price 30J., cloth, 
 
 THE DOCTRINES & PRINCIPLES OF 
 THE LAW OF INJUNCTIONS. 
 
 By WILLIAM JOYCE, 
 
 OF Lincoln's inn, bareister-at-law. 
 
 " Mr. Joyce, whose learned and exhaustive work on ' The Law and Practice of Injunctions ' has 
 gamed such a deservedly high reputation in the Profession, now brings out a valuable companion volume 
 on the Doctrines and Principles ' of this important branch of the Law. In the present work the Law is 
 enunciated in its abstract rather than its concrete form, as few cases as possible being cited ; while at the 
 same time no statement of a principle is made unsupported by a decision, and for the most part the very 
 language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, 
 and with the conscientious carefulness that might be expected from him, this work cannot fail to prove of 
 the greatest assistance alike to the Student— who wants to grasp principles freed from their superincum- 
 bent details — and to the practitioner, who wants to refresh his memory on points of doctrine amidst the 
 oppressive details of professional work." — Law Magazine and Review. 
 
 BY THE SAME AUTHOR. 
 In two volumes, royal 8vo, 1872, price 70X., cloth, 
 
 THE LAW & PRACTICE OF INJUNCTIONS. 
 
 EMBRACING 
 
 ALL THE SUBJECTS IN WHICH COURTS OF EQUITY 
 AND COMMON LAW HAVE JURISDICTION. 
 
 By WILLIAM JOYCE, 
 
 OF LINCOLN S INN, BARRISTER-AT-LAW. 
 
 BEVIEWB. 
 
 "A work which aims at being so absolutely 
 complete, as that of Mr. Joyce upon a subject 
 which is of almost perpetual recurrence in the 
 Courts, cannot fail to be a welcome offering to the 
 profession, and doubtless, it will be well received 
 and largely used, for it is as absolutely complete as 
 
 it aims at being This work is, therefore, 
 
 eminently a work for the practitioner, being full of 
 practical utility in every page, and every sentence, 
 of it We have to congratulate the pro- 
 fession on this new acquisition to a digest of the 
 law, and the author on his production of a work of 
 permanent utility and fame." — Law Magazine 
 and Review. 
 
 " Mr. Joyce has produced, not a treatise, but a 
 complete and compendious exposition of the Law 
 and Practice of Injunctions both in equity and 
 common law. 
 
 "Part III. is devoted to the practice of the 
 Courts. Contains an amotmt of valtcable and 
 technical matter nowhere else collected. 
 
 " From these remarks it will be sufficiently per- 
 ceived what elaborate and painstaking industry, as 
 well as legal knowledge and ability has been 
 necessary in the compilation of Mr. Joyce's work. 
 No labour has been spared to save the practitioner 
 labour, and no research has been omitted which 
 could tend towards the elucidation and exemplifi- 
 cation of the general principles of the Law and 
 Practice of Injunctions." — Law JoMrnal. 
 
 " He does not attempt to ^o an inch beyond that 
 for which he has express written authority ; he al- 
 lows the cases to speak, and does not speak for them. 
 
 "The work is something more than a treatise on 
 the Law of Injunctions. It gives us the general 
 law on almost every subject to which the process of 
 injunction is applicable. Not only English, but 
 American decisions are cited, the aggregate number 
 being 3,500, and the statutes cited 160, whilst the 
 index is, we think, the most elaborate we have ever 
 seen — occupying nearly 200 pages. The work is 
 probably entirely exhaustive." — Law Ti^nes, 
 
 " This work, considered either as to its matter or manner of execution, is no ordinary work. It is a 
 complete and exhaustive treatise both as to the law and the practice of granting injunctions. It must 
 supersede all other works on the subject. The terse statement of the practice will be found of incalculable 
 value._ We know of no book as suitable to supply a knowledge of the law of injunctions to our common 
 law friends as Mr. Joyce's exhaustive work. It is alike indispensable to members of the Common Law 
 and Equity Bars. Mr. Joyce's great work would be a casket without a key unless accompanied by a good 
 index. His index is very full and well arranged. We feel that this work is destined to take its place 
 as a standard text-book, and the text-book on the particular subject of which it treats. The author 
 deserves great credit for the very great labour bestowed upon it. The publishers, as usual, have 
 acquitted themselves in a manner deserving of th high reputation they bear."— Crt«rt<i« Law Journal. 
 
 Digitized by Microsoft© 
 
STEVENS 6f HAYNES, BELL YARD, TEMPLE BAR. 
 
 45 
 
 Third Edition, in 8vo, price 20s., cloth, 
 A TREATISE UPON 
 
 THE LAW OF EXTRADITION, 
 
 WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN 
 
 ENGLAND AND FOREIGN NATIONS, 
 
 AND THE CASES DECIDED THEREON, 
 
 By Sir EDWARD CLARKE, 
 
 OF LINCOLN'S INN 
 
 " Mr. Clarke's accurate and sensible book is the 
 best authority to which the English reader can 
 turn upon the subject of Extradition." — Saturday 
 Remev), 
 
 "The opinion we expressed of the merits of this 
 work when it first appeared has been fully justified 
 by the reputation it has gained. It is seldom we 
 come across a book possessing so much interest to 
 the general reader and at the same time furnishing so 
 useful a guide to the lawyer." — Solicitors' Joitmal, 
 
 "The appearance of a second edition of this 
 treatise does not surprise us. It is a useful book, 
 well arranged and well written. A student who 
 
 , Q.c, M.P. 
 wants to learn the principles and practice of the 
 law of extradition will be greatly helped by Mr. 
 Clarke. Lawyers v/ho have extradition business 
 will find this volume an excellent book of reference. 
 Magistrates who have to administer the extradition 
 law will be greatly assisted by a careful perusal of 
 'Clarke upon Extradition.' This may be called a 
 warm commendation, but those who have read the 
 book will not say it is unmerited." — Law Jojirmal. 
 The Times of September 7, 1874, in a long 
 article upon "Extradition TreatieSj" makes con- 
 siderable use of this work and writes of it as " Mr. 
 Clarke's useful Work oil Extradition" 
 
 In 8vo, price 2J. 6<3^., cloth, 
 
 TABLES OF STAMP DUTIES 
 
 FROM 1815 TO 1878. 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW : AUTHOR OF " THE LAW OF COPYRIGHT IN 
 WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," "TITLE DEEDS," &C. 
 
 " We think this little book ought to find its way 
 into a good many chambers and offices." — Soli- 
 citors' youmal. 
 
 " This book, or at least one containing the same 
 amount of valuable and well-arranged information, 
 should find a place in every Solicitor's office. It is 
 of especial value when examining the abstract of a 
 
 large number of old title-deeds." — Z,azu Times. 
 
 " His Tables 0/ Stamp Duties, from 1815 to 1878, 
 have already been tested in Chambers, and being 
 now published, will materially lighten the labours 
 of the profession in a tedious department, yet one re- 
 quiring great care." — Law Magazine and Review. 
 
 In one volume, 8vo, price 14J., cloth, 
 
 TITLE DEEDS: 
 
 THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN 
 
 EQUITY, AND IN MATTERS OF CONVEYANCING, 
 Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix 
 of Precedents, the Vendor and Purchaser Act, 1874, &c. &c. &c. By Walter 
 Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of " The 
 Law of Copyright" and "Index to Precedents in Conveyancing." 
 "The literary execution of the work is good 
 enough to invite quotation, hut the volume is not 
 large, and we content ourselves with recommending 
 it to the profession." — Law Times. _ 
 
 "A really good treatise on this subject must be 
 essential to the lawyer : and this is what we have 
 
 here. Mr. Copinger has supplied a much-felt want, 
 by the compilation of this volume. We have not 
 space to go into the details of the book ; it appears 
 well arranged, clearly written, and fully elaborated. 
 With these few remarks we recommend his volume 
 to our readers." — Law Journal. 
 
 Third Edition, in 8vo, considerably enlarged, price 36J., cloth, 
 
 THE LAW OF COPYRIGHT 
 
 In Works of Literature and Art; including that of the Drama, Music, Engraving, 
 Sculpture, Painting, Photography, and Ornamental and Usefial Designs ; together 
 with International and Foreign Copyright, with the Statutes relating thereto, and 
 References to the English and American Decisions. By Walter Arthur 
 Copinger, of the Middle Temple, Barrister-at-Law. 
 "Mr. Copinger's book is very comprehensive, merits which will, doubtless, lead to the placing of 
 
 dealing' with every branch of his subject, and even 
 extending to copyright in foreign countries. So far 
 as we have examined, we have found all the recent 
 authorities noted up with scrupulous care, and 
 there is an unusually good index. These are 
 
 this edition on the shelves of the members of the 
 profession whose business is concerned with copy- 
 right ; and deservedly, for the book is one of con- 
 siderable value." — Solicitors' Journal. 
 
 Digitized by Microsoft® 
 
i6 STEVEks 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Third Edition, in One large Volume, 8vo, price 32^., cloth, 
 
 A MAGISTERIAL AND POLICE GUIDE: 
 
 BEING THE LAW 
 
 RELATING TO THE 
 
 PROCEDURE, JURISDICTION, AND DUTIES of MAGISTRATES 
 AND POLICE AUTHORITIES, 
 
 IN THE METROPOLIS AND IN THE COUNTRY. 
 
 With an Introduction showing the General Procedure before Magistrates 
 both in Indictable and Summary Matters. 
 
 By henry C. greenwood, 
 
 STIPENDIARY MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE POTTERIES ; AND 
 
 TEMPLE CHEVALIER MARTIN, 
 
 CHIEF CLERK TO THE MAGISTRATES AT LAMBETH POLICE COURT, LONDON ; 
 AUTHOR OF ** THE LAW OF MAINTENANCE AND DESERTION," " THE NEW FORMULIST," ETC. 
 
 Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in the 
 Superior Courts to the End of the Year 1889, revised and enlarged. 
 
 By temple CHEVALIER MARTIN. 
 
 "A second edition has appeared of Messrs. Greenwood and Martin's valuable and 
 comprehensive magisterial and police Guide, a book which Justices of the peace should take 
 care to include in their Libraries." — Saturday Review. 
 
 ' ' Hence it is that we rarely light upon a work which commands our confidence, not merely 
 by its research, but also by its grasp of the subject of- which it treats. The volume before us 
 is one of the happy few of this latter class, and it is on this account that the public favour will 
 certainly wait upon it. We are moreover convinced that no effort has been spared by its 
 authors to render it a thoroughly efficient and trustworthy guide." — Law Journal. 
 
 "Magistrates will find a valuable handbook in Messrs. Greenwood and Martin's 
 ' Magisterial and Police Guide,' of which a fresh Edition has just been published." — The 
 Times. 
 
 " A very valuable introduction, treating of proceedings before Magistrates, and largely of the 
 Summary Jurisdiction Act, is in itself a treatise which will repay perusal. We expressed our 
 high opinion of the Guide when it first appeared, and the favourable impression then produced 
 is increased by our examination of this Second Edition." — Law Times. 
 
 " For the form of the work we have nothing but commendation. We may say we have 
 here our ideal law book. It maybe said to omit nothing which it ought to contain." — 
 Law Times. 
 
 " This handsome volume aims at presenting a comprehensive magisterial handbook 
 for the whole of England. The mode of arrangement seems to us excellent, and is well 
 carried out." — Solicitors' Journal. 
 
 " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple 
 Martin, is a model work in its conciseness, and, so far as we have been able to test it, 
 in completeness and accuracy. It ought to be in the hands of all who, as magistrates or 
 otherwise, have authority in matters of police." — Daily News. 
 
 " This work is eminently practical, and supplies a real want. It plainly and concisely 
 states the law on all points upon which Magistrates are called upon to adjudicate, syste- 
 matically arranged, so as to be easy of reference. It ought to find a place on every Justice^ s 
 table, and we cannot but think that its usefulness will speedily ensure for it as large a sale 
 as its merits deserve. " — Midland Counties Herald. 
 
 " The exceedingly arduous task of collecting together all the enactments on the subject 
 has been ably and efficiently performed, and the arrangement is so methodical and precise 
 that one is able to lay a fing;er on a Section of an Act almost in a moment. It is wonderful 
 what a mass of information is comprised in so comparatively small a space. We have much 
 pleasure in recommending the volume not only to our professional, but also to our 
 general readers ; nothing can be more useful to the pubUc than an acquaintance with the 
 outlines of magisterial jurisdiction and procedure." — Sheffield Post. 
 
 Digitized by Microsoft® 
 
STEVENS (Sr- HAYNBS, BELL YARD, TEMPLE BAR. M 
 
 In one thick volume, 8vo, price 32^., cloth, 
 
 THE LAW OF RAILWAY COMPANIES. 
 
 Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- 
 dation Acts, the Railway Companies Act, 1867, and the Regulation of Railways 
 Act, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the 
 year 1868 ; together with an Appendix giving all the other material Acts relating 
 to Railways, and the Standing Orders of the Houses of Lords and Commons; 
 and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John 
 Shortt, of the Middle Temple, Barristers-at-Law. 
 
 In a handy volume, crown 8vo, 1870, price \Qs. 6d., cloth, 
 
 THE LAW OF SALVAGE, 
 
 As administered in the High Court of Admiralty and the County Courts ; with the 
 Principal Authorities, English and American, brought down to the present time ; 
 and an Appendix, containing Statutes, Forms, Table of Fees, etc. By Edwyn 
 Jones, of Gray's Inn, Barrister-at-Law. 
 
 In crown 8vo, price 4^., cloth, 
 
 A HANDBOOK OF THE 
 
 LAW OF PARLIAMENTARY REGISTRATION. 
 
 WITH AN APPENDIX OF STATUTES AND FULL INDEX. 
 By J. R. SEAGER, Registration Agent. 
 
 In 8vo, price y., cloth, 
 
 THE LAW OF PROMOTERS OF PUBLIC COMPANIES. 
 
 By NEWMAN WATTS, 
 
 OF LINCOLN S INN, BARRISTER-AT-LAW. 
 
 " Some recent cases in our law courts, which at 
 the time attracted much public notice, have demon- 
 strated the want of some clear and concise exposi- 
 tion of the powers and liabilities of promoters, and 
 this task has been ably performed by Mr. Newman 
 Watts." — Investor's Guardian. 
 
 '* Mr. Watts has brought together all the lead- 
 ing decisions relating to promoters and directors, 
 and has arranged the information in a very satisfac- 
 tory manner, so as to readily show the rights of 
 different parties and the steps which can be legally 
 taken by promoters to further interests of new com- 
 panies." — Daily Chronicle. 
 
 Second Edition, in One VoL, 8vo, price izs., cloth, 
 
 A COMPENDIUM OF ROMAN LAW, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions of 
 Leading Terms in the Words of the Prin,cipal Authorities. Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of 
 Austin's Jurisprudence, or the Philosophy of Positive Law. " 
 
 In Svo, price Ts. 6d., cloth, 
 
 TITLES TO MINES IN THE UNITED STATES, 
 
 WITH THE 
 
 STATUTES AND REFERENCES TO THE DECISIONS 
 OF THE COURTS RELATING THERETO. 
 
 By W. a. HARRIS, B.A. Oxon., 
 
 OF Lincoln's inn, barrister-at-law ; and of the American bar. 
 
 Digitized by Microsoft© 
 
4S 
 
 STEVENS &- HA YNES, BELL YARD, TEMPLE BAR. 
 
 INDEX 
 
 To the Names of Author s and Editors of Works enum erated in this Catalogue. 
 
 Aldred (P. F.), page 21. 
 
 Argles (N.), 32. 
 
 Attenborough (C. L.), 27. 
 
 Baldwin (E. T.), 15. 
 
 Banning (H. T.), 42 
 
 Beal (E.), 32. 
 
 Bellewe (R.), 34. 
 
 Seven (T.), 8. 
 
 Blyth (E. E.), 22. 
 
 Brice (Seward), 9, 16, 
 
 Brooke (Sir R.), 35. 
 
 Brooks (W. J.), 13. 
 
 Brown (Archibald), 20, 22, 26, 33, 40. 
 
 Browne (J. H. Balfour), 19. 
 
 Buchanan (J.), 38. 
 
 Buckley (H. B.), 17. 
 
 BucKNiLL(T. T.), 34. 35- 
 
 Campbell (Gordon), 47. 
 
 Campbell (Robert), 9, 40. 
 
 Carmichael (C. H. E.), 21. 
 
 Cecil (Lord R.), 11. 
 
 Chaster(A.W.),32. Chitty(J.J, C.),38. 
 
 Clarke (Edward), 45. 
 
 Cobbett (Pitt), 43. 
 
 Coghlan (W. M.), 28. 
 
 Cooke (Sir G.), 35- 
 
 Cooke (Hugh), id. 
 
 Copinger (W. a.), 40, 42, 45. 
 
 Corner (R. J.), 10. 
 
 Craies (W. F.), 6, 9. 
 
 Cunningham (H. S.), 38, 42. 
 
 Cunningham (John), 7. 
 
 Cunningham (T.), 34. 
 
 Daniel (E. M.), 42. 
 
 Darling (C. J.), 18. 
 
 Deane (H. C), 23. 
 
 DeBruyn(D. P.), 38. De Wal (J.), 38. 
 
 DiBDiN, (L. T.), 10. Duncan (J. A.), 33. 
 
 Edwards (W. D.), 16, 39. 
 
 Elgood (E. j.), 6, 18, 43. 
 
 Elliott (G.), 14. Emden (A.), 11. 
 
 Errington (F. H. L.), 10. 
 
 Eversley (W. p. ), 9. 
 Finlason (W. F.), 32. 
 Foa(E.), II. 
 
 FooTE (J. Alderson), 36. 
 Forbes (U. A.), 18. 
 Forsyth (W. ), 14. 
 Frost (R.), 12. 
 GiBBS (F. W.), 10. 
 Godefroi (H.), 47. 
 Greenwood (H. C.), 46. 
 Griffiths (J. R. ), 40. 
 Grigsby (W. E.), 43. 
 Grotius (Hugo), 38. 
 Hall (R. G.), 30. 
 Hanson (A.), 10. 
 Hardcastle (H.), 9, 33. 
 Harris (Seymour F. ), 20, 27. 
 Harris (W. A.), 47. 
 Harrison (J. C), 23. 
 Harwood (R. G.), 10. 
 Hazlitt (W.), 29. 
 
 Higgins (C), 30. 
 Houston (J. ), 32. 
 Hudson (A. A.), 12. 
 Hurst (J.), 11. 
 
 Indermaur (John), 24, 25, 28. 
 
 Jones (E.), 47- Joyce (W.), 44. 
 
 Kay (Joseph), 17. 
 
 Kelke(W. H.), 6. 
 
 Kelyng (Sir j.), 35. 
 
 Kelynge (W. ), 35. 
 
 KoTzi; (J. G.), 38. 
 
 Lloyd (Eyre), 13. 
 
 LoRENZ (C. A.), 38. 
 
 Loveland (R. L.), 30. 34. 3S- 
 
 Maasdorp (A. F. S.), 38. 
 
 Macaskie (S. C), 7- ' 
 
 Mansfield (Hon. J. W.), 17. 
 
 March (John), 35. 
 
 Marcy (G. N.), 26. 
 
 Martin (Temple C. ), 7, 46. 
 
 Mattinson (M. W.), 7. 
 
 May (H. W.), 29. 
 
 Mayne (John D.), 31, 38. 
 
 Mellor (F. H.), 10. 
 
 Menzies (W. ), 38. 
 
 Moore (S. A.), 30. 
 
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 Pavitt (A.), 32. Peile (C. J.), 7. 
 
 Pemberton (L. L.), 18, 32. 
 
 Phipson (S. L.), 20. 
 
 Porter (J. B.), 6. 
 
 Reilly (F. S.), 29. 
 
 Ringwood (R.), 13, 15, 29. 
 
 Salkowski (C), 14. 
 
 Salmond (J. W.), 13. 
 
 Savigny (F. C. Von), 20. 
 
 Scott (C. E.), 32. 
 
 Seager (J. R.), 47. 
 
 Short {F. H.), 10, 41. 
 
 Shortt (John), 47. 
 
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 Smith (Lumley), 31. 
 
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 Story, 43. 
 
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 Tyssen (A. D. ), 39. 
 
 Van der Keesel (D. G.), 38. 
 
 Van Leeuwen, 38. Van Zyl 38. 
 
 Waite (W. T.), 22. 
 
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 Watts (C. N.), 47. 
 
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 LONDON: BRADBURY, AGNEW, & CO. LD., PRINTERS, WHITEFEIARS, E.G. 
 
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Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
Digitized by Microsoft®