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A manual o'

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                 
A MANUAL

EQUITY JURISPRUDENCE,

FOR

PRACTITIONERS AND STUDENTS,

FOUNDED ON THE WORKS OF

STORY, SPENCE, AND OTHER WRITERS,

AND ON
MORE THAN A THOUSAND SUBSEQUENT CASES:

COMPRISING

THE FUNDAMENTAL PRINCIPLES,

AND THE

POINTS OF EQUITY USUALLY OCCURRING
IN GENERAL PRACTICE.

By JOSIAH W. SMITH, BCL. OC,
JUDGE OF COUNTY COURTS,

EDITOR OF “'FEARNE’S CONTINGENT REMAINDERS,” AND MITFORD’S ‘‘CHAN-
CERY PLEADINGS,” AUTHOR OF “A COMPENDIUM OF THE LAW OF
REAL AND PERSONAL PROPERTY,” “A MANUAL OF COMMON
LAW,” AND “A MANUAL OF BANKRUPTCY ;” AND ONE
OF THE CONSOLIDATORS OF THE CHAN-

CERY ORDERS.

Second American Edition.
REVISED AND ENLARGED WITH NOTES AND REFERENCES,

By EDWARD CHASE INGERSOLL,

OF THE WASHINGTON BAR,

ONE OF THE COMMISSIONERS TO REVISE THE LAWS OF THE DISTRICT OF
COLUMBIA, AND EDITOR OF ‘“‘SMITH’S MANUAL OF COMMON Law.”

FROM THE TWELFTH LONDON EDITION.

 

WASHINGTON CITY:
W. H. & O. H. MORRISON,
LAW BOOKSELLERS AND PUBLISHERS.

1878.

l3aiza
Entered according to Act of Congress in the year 1878,
By W. H. & 0. H. MORRISON,
In the Office of the Librarian of Congress, at Washington, D. C.

SHERMAN & CO., PRINTERS,
8. W. CORNER SEVENTH AND CHERRY STREETS,
PHILADELPHIA.
TO THE

HONORABLE ANDREW WYLIE,

ONE OF THE JUSTICES OF THE SUPREME COURT OF THE DISTRICT

OF COLUMBIA,
This American Edition,

OF A WORK INTENDED TO FACILITATE A KNOWLEDGE OF THAT
JURISPRUDENCE WHICH HAS BEEN ADMINISTERED BY
HIS HONOR, SO LONG AND SO ABLY, IS, BY
PERMISSION, RESPECTFULLY

INSCRIBED,

BY THE EDITOR.
PREFACE

TO THE SECOND AMERICAN EDITION.*

THE general demand for some book which should
give a succinct yet comprehensive view of the leading
principles of Equity Jurisprudence with sufficient cita-
tions of authority to be of value to the practitioner, and
sufficiently compact in expression to make it a more
useful and desirable text-book for students than the
larger treatises, has induced the editor to undertake
the preparation of this edition of Smith’s Manual of
Equity.

The author’s rare power of condensation and logical
skill in the simple arrangement and exhaustive divi-
sion of complicated subjects, have made his works
deservedly popular in England.

The scopé of the Manual is best exhibited in the

 

* The first American edition was a reprint of the eighth London
edition, without American notes.—Eprqor.
vi PREFACE TO THE SECOND AMERICAN EDITION.

learned author’s preface (infra). It is founded prin-
cipally upon the Commentaries on Equity Jurispru-
dence of the late Mr. Justice Story, whose work has
been justly characterized by his annotator (12th edition)
as “a wonderful exposition of the Jurisprudence of
Equity.” It may be said to bear the same relation to
the Commentaries that they bear to the Treatises and
Reports on which they are founded, and to exhibit in
convenient form an accurate and succinct view of
Equity.

While the leading principles of Equity Jurispru-
dence are substantially the same in this country and in
England, yet it appears their application has been
varied, modified, and enlarged by the Courts of this
country. And this results, among other causes, from
the diversity in the prevailing laws of tenure, political
divisions, legislative enactments, and public policy.

It has been the aim of the editor to exhibit these
differences where they occur, and in some degree to
supplement the work of the author by an adaptation
of the American doctrine where there has been essen-
tial departure from the English ; condensing the notes
as far as practicable to conform to the plan of the
original work, and referring the student to the standard
treatises, text-books, and well-considered’ American
cases for the fuller discussion of the “principles and
PREFACE TO THE SECOND AMERICAN EDITION. vii

the nicer distinctions drawn. Generally, where the
author has referred to the English text-books, appro-
priate references have been made to the American books
upon the same subjects, and it is believed sufficient
American cases have been cited in the notes to enhance
the value of the Manual to the practitioner.

The text of the twelfth London edition (1878) has
been used in this work, and the English cases (hereto-
fore incorporated in the body of the page) have been
placed at the foot with the editor’s notes.

The editor is indebted in the preparation of the notes,
among others referred to therein, to the admirable
treatises, Perry on Trusts, Bigelow on Fraud, Jones
on Mortgages, Schouler’s Domestic Relations, to
Sharswood’s edition of Adams’s Equity, and to the
notes of the American editors of White and Tudor’s
Leading Cases in Equity (4th Am. ed.).

E. C. 1.
Wasuineton, D. C., August, 1878.
PREFACE

TO THE TWELFTH EDITION.

For this, as for the fifth and subsequent editions,
the writer has searched the authorized Reports pub-
lished since the preceding edition, and has added such
further points to be found in those Reports as appeared
to-him to be requisite to be noticed in a book of this
kind, as well as references to new cases in support of
points previously inserted, and references to the new
Statutes.*

This edition comprises more than a thousand cases,
coming within the scope of the Manual, which have
been decided since the death of Mr. Justice Story and
of Mr. Spence, together with a few earlier cases. For

 

* His very learned friend, Mr. O. D. Tudor, the author of the
“Leading Cases in Equity ” (now in the fifth edition), and of other
well-known and highly valuable works, kindly perused the proof-
sheets of the eighth edition of this Manual.
x PREFACE TO THE TWELFTH EDITION.

the rest of the earlier cases, the reader is referred, as
before, to the works of Story, Spence, and other writers,
on which the Manual purports to be founded.

The “ Act to confer on the County Courts a Limited
Jurisdiction in Equity ” (28 and 29 Vict. c. 99), called
for no notice in the present work, as it merely gave
those Courts the power of administering a large portion
of Equity Jurisprudence, without affecting any part of
that Jurisprudence at all. |

It is obvious that the book must now be as appli-
cable and useful in Equity cases in the County Courts
as elsewhere.

As to the alterations made by the Judicature Acts,
the reader is referred to page 10, infra.

J. W.S.
December, 1877.
PREFACE

TO THE THIRD EDITION.

Tuts edition is founded on the learned and very
valuable Treatise on “The Equitable Jurisdiction of
the Court of Chancery,” by the late George Spence,
Esq., Q.C., as well as on the celebrated work on which
the preceding editions were founded.

The second volume of Mr. Spence’s work (published
in the year 1849) contains upwards of 900 pages
of Equity Jurisprudence, of which the writer of the
Manual has, in this edition, availed himself in the
same way as he had previously made use of the work
of Mr. Justice Story.
PREFACE

TO THE SECOND EDITION.

THE writer of these pages, in publishing the first
edition, was under no apprehension that a work an-
swering to the title of the present little book would be
deemed wnnecessary. On the contrary, he was not
aware of the existence of any book purporting to give
a succinct yet comprehensive view of the leading prin-
ciples of Equity Jurisprudence; and he believed that
the want of a book of that description was greatly felt
by students, and indeed by many practitioners in each
branch of the profession. For the student labors under
great disadvantages when he enters upon the perusal
of a large treatise, without having previously read
any smaller work upon the same subject; and after he
has read a work of two volumes, he is able accurately
to retain but few points in his memory—far fewer than
he would after a careful perusal of a condensed work.
And the practitioner often stands in need of a body of
xiv PREFACE TO THE SECOND EDITION.

points and principles, well fixed in his mind, as his
constant guide and aid amidst the rapid occasions of
daily practice; and yet it is impossible for him to be-
come possessed of such a body of knowledge, except
by the help of some succinct view of Equity, or by the
experience gained during long and extensive practice.

The Manual is founded on the “Commentaries on
Equity Jurisprudence” of the late Joseph Story,
LL.D., one of the justices of the Supreme Court of
the United States; and it is of a semi-original char-
acter, bearing the same relation to the Commentaries as
the Commentaries bear to the Treatises and Reports on
which they are founded. The division of the subject is
original. And although many passages are mere ex-
tracts, yet the selection of such passages as expressed
in the fewest words the pith of whole sections, or that
view of a subject which seemed to be the more correct,
involved considerable deliberation and discrimination.
. And, taking the Manual as a whole, there has been
the same process of analyzing, arranging, digesting,
defining, distinguishing, deducing, qualifying, and com-
menting as in the generality of legal treatises; and the
reader will scarcely suppose the amount of close con-
sideration which has been bestowed upon so small a
book.

As the learned Judge seems to have availed himself
PREFACE TO THE SECOND EDITION. XV

of most of the Treatises, as well as of the Reports, in the
composition of his Commentaries, there appeared to be
no necessity, in general, for the writer’s consulting
other works besides the Commentaries, while engaged
upon the Manual, unless he had designed to enter
more into detail. At the same time he has written
under the light derived from the previous perusal
of other works. And he has noticed several recent
enactments, which, as not applicable to America, the
learned Judge has omitted.

With regard to the principle of selection, the writer
has endeavored to collect together, under appropriate
heads, the points usually occurring, and necessary to
be accurately known and constantly borne in mind by
every chancery and conveyancing counsel, and by
every solicitor; and for that purpose he has- labored
to extract and mould into a concise and perspicuous
form the essence of the Commentaries, which comprise
upwards of 1700 pages; omitting points of law in some
instances, and such cases in Equity as are of a peculiar
nature and not likely to occur again ; and also omitting,
except where it seemed advisable to use them as ex-
amples, such cases as are of so simple and obvious a
character, that the decisions respecting them embody
nothing more than so plain and necessary an applica-
tion of points and principles stated in the work, that
xvi PREFACE TO THE SECOND EDITION.

it would be sure to suggest itself at once, without va-
riation, to the minds of different individuals.

A host of English treatises and cases are cited by
the learned Judge and author, exclusively of the
American decisions. The points comprised in the fol-
lowing pages are those in support of which English
authorities are cited.

The want of references to the authorities themselves,
may seem, at first sight, to be a strong ground of objec-
tion in the eyes of those who do not possess the Com-
mentaries. But, in reality, it is not so. For the in-
sertion of those references would have doubled the bulk
and price of the Manual; and it is rarely necessary or
advisable for the student to consume his time by refer-
ring to the authorities; and with respect to those who
are engaged in practice, the earlier editions of the Com-
mentaries contain almost all the sections referred to in
these pages, numbered in the same manner ; although
the last, that is, the fourth edition, is the edition of the
Commentaries from which the present edition of the
Manual has been prepared for the press.

The writer has generally prefixed the word “see”
to the references, where he has interspersed original
matter, or has modified, in point of substance, the
statements he has taken from the Commentaries, with

reference to cases contained in other passages, or other-
PREFACE TO THE SECOND EDITION. xvii

wise ; or where he has deduced, rather than abstracted,
the points from a passage in the Commentaries; or
where he has blended together, for the sake of brevity,
precision, or otherwise, the ideas contained in two or
more passages; or where he has expressed his own
views, or has laid down original propositions, but has
referred to passages in the Commentaries in support of
such views or propositions. For those paragraphs to
which no reference is added, he alone is responsible.
CONTENTS.

INTRODUCTION.

Secr. —Of the Nature of Equity Jurisprudence, and the
Extent of Equity Jurisdiction, .
Il.— Of the General Effect of the Judicature das, as
regards Equity Jurisdiction and Jurisprudence,
TII.—Of the General Maxims ¥ eee ee
dence, .
IV.—Of the Division of Biuite: :

TITLE I.
Of Remedial Equity.
SPECIFICALLY SO TERMED.

Cap. I.—Or AccrpEnt,
II.—Or Mistake, ‘
JIL—Or Actuau Fravp, .
IV.—Or Constructive Fravp,

TITLE II.
Of Executive Equity.

Cuap. l—Or Lrcactes AND Portions, .
II.—Or Donations Mortis Causa,

PAGE

10

12
33

37
44,
54
68

107
113
XX CONTENTS,

JIJ.—Or Express Private Trusts, EVIDENCED BY
somME WrittEN DocuMENT,
IV.—Or Express CHARITABLE TRUSTS, .
V.—Or ImpLiepD TRUSTS,
VI—Or Constructive TRusTs,
VIL—Or TRUSTEES AND OTHERS STANDING IN A Fr
DUCIARY RELATION,
VIII.—Or THE SpeciFic PERFORMANCE OF Renae.
MENTS AND DUTIES NOT ARISING FROM
TRUSTS, .

TITLE II.
Of Adjustive Equity.

Cuap. L—Or Account IN GENERAL,
II.—Or ADMINISTRATION,
IJI.—Or MortGaGEs, PLEDGES, AND ass
Secr. 1.—Of Legal Mortgages of Real Property,

2.— Of Equitable Mortgages,

3.— Of Mortgages and oe Besonal Pr ‘op-
erty,

4.—Of Liens, . ‘

IV.—Or APPORTIONMENT AND Ciaenes,
V.—Or PARTNERSHIP, 3 .
VI—OF cERTAIN SPECIAL Anaceon airs IN THE
CasE oF DEBTORS AND CREDITORS,
Sect. 1.—Of the Marshalling of Securities;

2.— Of the Mutual Right to the Benefit of eee: i
ties between a Creditor and Sureties ;
and of the Release of Sureties,

3.—Of Set-off or Counter-claim,

VIIL—Or certain MIscELLANEOUS CASES OF Ke
COUNT, :
VITI—Or DAMAGES AND Certctencivney: 3

PAGE

116
141
146
166

175

206

243
248
274
274
312

315
319
322
829

3385
335
336

339

342
344
.

CONTENTS.

IX.—Or Exection, . ‘ . : : ‘ 3
X.—Or SatTIsFACTION, . : .
Xi—Or Partition; oF Senncanenae ¢ OF Boun-
DARIES; AND OF ASSIGNMENT OF DowEnr, .

Srcr. 1.—Of Parken : ‘
2.—Of the Settlement of Bowkdanies, s .
3.—Of the Assignment of Dower,  . : ;

TITLE IV.
OF Protective Equity.

IRRESPECTIVE OF DISABILITY.

Cuap. I.—Or Protection From Litigation on Ingury,

AFFORDED BY THE CANCELLING, DELIVER-

ING UP, AND SECURING OF DocUMENTs, .

Il—Or Protection FRoM LITIGATION RESPECT-

ING THE PROPERTY OF ANOTHER BY —

oF INTERPLEADER, F F :

III.—Or PRotEcTION FROM REPEATED OR RENEWED

LITIGATION, AFFORDED By DECREES UPON

Brits oF PEACE OR PROCEEDINGS TO ES-

TABLISH WILLS, . : z j é ;

Sect. 1—Of Bills of Peace, . ; ‘ ‘
2.—Of Proceedings to Establish Wills, é

IV.—Or Protection rrom Loss or Insury By In-

JUNCTION, . ‘ ‘ ,
V.—Or PROTECTION FROM Anorsnn’ S- deci
MENT, BY THE WRIT oF Nz ExeEat Reeno, .
VI.—OF THE PROTECTION OF PROPERTY, BY TAKING
AWAY THE PossEssION OR RECEIPT THERE-

OF, OR BY REQUIRING SECURITY,

XX1

PAGE
349
357
365
365

368
369

378

378

382
382
384
386

397

399
XXxii CONTENTS.

TITLE V.
OF Protective Equity.

IN FAVOR OF PERSONS UNDER DISABILITY.(a)

Cuap. L—Or INFANTS,
Il—Or Marriep WomEN, .

Sect. 1.—The Powers which Husband apa Wife have,
in Equity, of Contracting with, and Giving
and Granting to, each other, . ‘

2.—Pin-money and Paraphernalia,

3.—The Wife's Separate Estate,

4—The Wife's Equity to a Settlement or Meaty
tenance out of her own Property,

5.—Some Miscellaneous Points,

TITLE VI.
Of Auxiliary Equity.

Cuap. l—Or a Discovery IN AID oF A Suit or DE-
FENCE IN ANOTHER COURT,
Il—Or THE TAKING AND PRESERVING OF Tesrr-
MONY IN AID oF A Suit oR DEFENCE IN
ANOTHER CouRT,

APPENDIX.

31 anv 32 Vict. c. 40,
39 anp 40 Vict. c. 17,
30 anp 31 Vict. c. 48,
36 anD 37 Vict. c. 66,

PAGE

405
417

418
421
423

447
458

463

468

472,
477
482
486

 

(a) Some observations are made on transactions with persons
of unsound mind in the chapter on Actual Fraud. But the gene-
ral subject of persons of unsound mind does not properly form
part of Equity Jurisprudence, and therefore is omitted in this

edition.
TABLE OF CASES. (a)!

The figures refer to the paragraphs, and not to the pages,
except where otherwise indicated.

A.
Abbott, Anderson v. 681, 689,
823

v. Sworder, 122
Aberaman Ironworks v. Wick-
ens, 415
Ackroyd v. Smithson, 295
Acraman v. Corbett, 183.
Acworth, Coutts v. 200, 681.
Addison, Cook +. 363
v. Cox, 436
Adsetis v. Hives, 133
Advocate-General of Bengal,
Lyons (Mayor of) v. 276
Agar v. Fairfax, 715
Agra Bank, Ex parte, 436
v. Barry, 534
Airey v. Hall, 421
Aldam, Jarratt v.147
Alderson v. White, 506

 

Aldrich v. Cooper, 493
Aleyn v. Belchier, 203
Alford, Attorney-General v. 358
Allan v. Gott, 477
Allen v. Bonnett, 183

“Dewey v. 345

v. Hammond, 87

Lacon v. 592

Smith v. 762
Alloway v. Braine, 33
Allsopp v. Wheatcroft, 141
Alston v. Mundford, 493
Alt v. Alt, 450
Alton M. and F. Ins.

Buckmaster, 720
Alton v. Harrison, 183
Ames v. Clark, 238
Amherst Bank, Lathrop v. 480
Amicable Assurance Office, Pear-
son v. 421.

Amis v, Witt, 220

Co. v.

 

(a) This comprises more than 1050 cases from the authorized
Reports published during the last twenty-three years, with a few

earlier cases.

For the rest of the earlier cases the reader is referred

to the works of Story, SPENCE, and others, on which this Manual’

purports to be founded.

_ | The American cases cited by the editor have been incorporated

” jiesthie table,
XXIV

Amis, Witt v. 220
Anderson v. Abbott, 681, 689,
823

v. Elsworth, 200
~ Andrews, Sherwood v. 421
v. Sparhawk, 263
Angle, Ex parte, 371
Annesley, Macleod v. 352
Anstey, Stroughill v. 263, 379
Arkwright, Daniel v. 89
Armstrong, Walker v. 89
Arthur, Hotten v. 774
Ashbee, Kempson v. 149, 150
Ashburner, Fletcher v. 47, 409
Ashford, Squires v. 883
Ashton, Ion v. 477, 480
Ashton’s Charity, Re, 277
Askey, Birds v. (No. 2), 498
Astor v. Wells, 190
Astor’s Ex’rs., Langdon »v. 704
Atkinson, In re, 4389
v. Smith, 196, 574
Atlantic Bank v. Harris, 187
Atterbury v. Wallis, 187, 190
Attorney-General v. Alford, 358
v. Beverly (Corp.
of ), 277, 278
v. Chesterfield
(Earl of ), 465
v. Davey, 278
». Greenhill, 285
Jauncy v. 496
v. Leicester (Corp.
of ), 372
Magdalen College
v. 278

Merchant Tailors’
Company v.
277
v. Trin, Coll. Cam-
bridge, 277
v. Wilkins, 34
Attwood, Lloyd »v. 193
Atwell, Reese River Silver Min-
ing Company v. 183
Auldjo, Wallace v. 889
Austin, Mildred v, 555
Ayerst v. Jenkins, 732

 

TABLE OF CASES.

Ayles v. Cox, 424 .

Aylesford (Earl of) v. Morris,
168, 171

Aylward, Dolphin v. 193

B.

Babcock, Corn Ex. Ins, Co. ».
856
B— v. W , 424, 725, 727
Ww. v. 424, 725, 727
Baddeley, Jennings v. 640
Porter v. 359
Bagot v. Bagot, 480, 764, 765
Bagshaw, Evans v. 718
v. Winter, 883, 884
Bagster v. Fackerell, 300
Bailey’s Settlement, In re, 216
Baillie v. Baillie, 56
Bain v. Brown, 155
Bainbrigge, Moss v. 155
Baines, Smee v. 661
Baker v. Bradley, 149
v. Gray, 530
v. Monk, 123, 124.
v. Read, 33
Reeves v. 233
Thornborough, »v. 339
Baldwin, Fisher v.661 —
Baltimore (Lord), Penn v. 54
Balto. & Ohio R. R., Marshall
v. 142
Bank of Alexandria v. Lynn,
424 <
Bank of Hindustan, etc., In re,
Ex parte Smith, 616
London v. Tyrrell, 155
160
New Orleans v. Torry,
160
Potomac, McLoughlin
v. 183
Tyrrell v. 155
160
United States, Etting v.
116

 

 
TABLE OF CASES.

Bank of the United States »v.
Daniel, 82
Whitehaven, Dawson v.
555
Banks, Lloyd v. 436
Barber, Kimber v. 160
Bardwell v. Bardwell, 305
Barfield v. Loughborough, 646
Baring, Trail v. 1124
Barker v. Barker, 621
Barker, Parker v. 744
Barling v. Bishop, 183
Barlow, Bowen v. 585
Broadbent v. 190
Barnard v. Ford, 875
Barnes v. Bond, 625
v. Wood, 187
Barnwell v. Iremonger, 475
Barr’s Trust, In re, 436
Barrett, Box v. 695
v. Hartley, 345, 365
Saltmarsh v. 294
Waller v. 383
Barrow v. Barrow, 871
Wolterbeek ‘v. 89
Barrs v. Fewkes, 233
Barry, Agra Bank »v, 534
v. Croskey, 112a
v. Stevens, 454
Bartlett v. Bartlett, 436
Barton, Beckton v. 708
v. Vanheythuysen, 183,

193.
Barwell v. Barwell, 33
Baseley, Huguenin v. 148, 200
Bascomb v. Beckwith, 424
Basset v. Nosworthy, 34, 338,
376

Bate v. Hooper, 359

Rhodes v. 148
Bates, Blackett v. 441
Bates’s Case, 429
Batstone v. Salter, 313
Baud ». Fardell, 351
Baxter v. West, 640
Bayley, Williams v. 131
Baylis, Chowne v. 435
Bayspoole v. Collins, 196

 

XXV

Beadel, Ormes v. 424, 441
Beadon, Bridge v. 436
Beak v. Beak, Beak’s Estate, In
re, 220
Beak’s Estate, In re, Beak v.
Beak, 220 ‘
Beal, Phillips v. (No. 2), 387
Beal v. Symonds, 591
Beatty v. Clark, 79
Beaumont v. Oliveira, 496
Beck, Sterne v. 674
Beckton v. Barton, 708
Beckwith, Bascomb »v. 424
Beckwith, Otis v. 421
Beech v. Keep, 421
Beecher v. Major, 313
Beevor v. Luck, 554
Beioley v. Carter, 424
Belcher, Hunter v. 460
Belchier, Aleyn v. 203
Bell v. Carter, 509
v. Holtby, 424
Mortimer v. 424
Wilson v. 808
Belmont, Frost v. 142
Bennett v. Wyndham, 357
Bennett, Eaton v. 91
v. Lytton, 383
Benson, Pearson v. 154
Bentley v. Craven, 160
v. Mackay, 81
Benwell v. Inns, 141
Berdoe v. Dawson, 149
Bergen, Staat v. 333
Berham, Taylor v. 409
Bernard v. Minshull, 235
Berridge, Nesbitt v. 169
Berrington, Rees v. 164
Bessey v. Windham, 183
Bethell v. Green, 475
Betjemann, Dowling v. 405
Betton’s Trust Estate, In re,
574
Beverly (Corporation of), At-
torney-General v. 277, 278
Beverly, Peters v. 47
Bewicke, Manby v. 128
Beynon v. Cook, 169
XXVI

Bibby, Hodgson »v. 33
v. Thompson (No. 1), 233
Biddle v. Jackson, 816
Bigelow v. Comegys, 133
Bingham, Bleeker v. 823
Bird, In re, Oriental Commercial
Bank »v. Savin, 357
Birds v. Askey (No. 2), 498
Birkley v. Presgrave, 636
Biron v. Mount, 250
Bishop, Cox v. 438
Obee v. 462
Bishopp, Barling v. 183
Blackburn, Byne v. 233
Blackett v. Bates, 441
Blagrave, Powys v. 763
v. Routh, 33
Blaiklock v. Grindle, 686
Blakeway, Steward v. 647
Blandy v. Widmore, 51, 316
Blandheir v. Moore, 785
Blatchford v. Woolley, 856, 857
Bleeker v. Bingham, 823
Blest v. Brown, 164
Bloodgood, Kane v. 33
Bloxham, South v, 494
Bloye’s Trust, In re, 154
Boardman, Phillips v. 204
Bold v. Hutchinson, 95
Bolton, Ramshire v. 1124
Bonany y Gurety, Larios v. 451
Bond, Barnes v. 625
v. England, 479
Bone, Dilrow v. 421
v. Pollard, 313
Bonnett, Allen v. 183
Bonser v. Kinnear, 233
Boone v. Chiles, 33, 34
Booth v. Turle, 179
Borthoud, Sacia v. 192
Bostock v. Floyer, 357
Boston Marine Ins. Co., Graves v.

Bosville, Glenorchy (Lord) ».
30, 89, 236

Bott v. Smith, 183

Boulter, In re, Ex parte Na-
tional Provincial Bank, 89

 

TABLE OF CASES.

Boulton, Ex parte, 436
Bourne, Wills v. 496
Bouts v. Ellis, 220
Bouverie, Kensington (Lord) v.
629
Boynton v. Hubbard, 136
Bowen v. Barlow, 585
Bower, Crosskill v. 365
Bowes, Strathmore (Countess of ),
vi
Bowring, Long v. 453
Box v. Barrett, 695
Boyle, Hill v. 431
Boys v. Boys, 359
Boyse v. Rossborough, 130, 131
754
Bradford (Earl of) v. Romney,
(Earl of ), 89
Bradford v. Union Bank, 89
Bradley, Baker v. 149
Bradshaw, Salter v. 169
Bradwell v. Catchpole, 372
Braine, Alloway v. 33
Brant’s Will, 477
Brashear v. West, 435
Brashier v. Gratz, 413
Braybroke v. Inskip, 585
Bremridge, Evans v. 658
Brennan, Strange v. 155
Brereton, Drosier v. 352 .
Brice v. Stokes, 348, 368
Bridge v. Beadon, 436
v. Bridge, 421
Briggs v. Jones, 535
Langdale (Lady) v. 479
v. Penny, 233, 235, 287
Bright v. Larcher, 477
(No. 2), 33,
476
v. Legerton, 33 ° e
British Mutual Investment Com-
pany v. Smart, 597
Britten, Green v. 830
Brittlebank v. Goodwin, 462
Broadbent v. Barlow, 190
Broadmead, Dilkes v. 487
Brock, Probst v. 539
Broderick’s Will, 105
TABLE OF CASES.

Brocklehurst, Horton v. (No. 2),
366

Bromley v. Brunton, 220
v. Smith, 169
Brooke, In re, Brooke v. Rooke,
804

v. Haymes, 89
v. Mostyn (Lord), 88
v. Rooke, In re, Brooke,
304
Brooking, Francis v. 883
Brooks, Harris v. 164
Farnham v. 162
Brotheridge, Lechmere v. 848,
850
Broughton v. Broughton, 345
v. Hutt, 81
Jennings v. 112
Broun v. Kennedy, 93, 148, 153
Brown, Bain v. 155
Brown, Blest v. 164
: v. Brown, 689
v. Gellatly, 359
Gillian ». 712
v. Leach, 112
Malins v. 448
Shepard v. 454
v. Tanner, 436
Brown’s Trusts, In re, 436
Browne, Greville v. 304
v. Savage, 436
Brownson v. Lawrance, 475
Brumridge v. Brumridge, 369
Brunton, Bromley v. 220
Bubb, Pride v. 849
v. Yelverton, Ex parte
Hastings, 768
Buccleuch (Duke of ) v. Metro-
politan Board of Works, 440
Buchanan, Fleming v. 475
v. Harrison, 295,-300
Buck, Vaughan v. 883
Buckmaster, Alton M. and F.
Ins. Co. v. 720
Hamilton v. 424
Budge v. Gummow, 352
Buller v. Plunkett, 436
Bulteel, Cavander v. 187, 190

 

XXVilL

Bunny, Shaw v. 545
Burdick v. Garrick, 462
Burke, Whiting v. 634
Burkham, Wiggins v. 457
Burn v. Carvalho, 435
Kemp »v. 400
Burnham v. Kempton, 770
Burrow, Tucker ». 313
Burrows, Keith v. 53
Burt, Thurman ». 131
Burton, Maxfield v. 187, 190
Bury v. Oppenheim, 149
Buss, Pledge v. 655
Butler v. Cumpston, 856
Byne v. Blackburn, 233

Cc.

Caballero v. Henty, 424
Camm, Goulder v. 830
Campbell v. Campbell, 704
v. Ingilby, 67
Campbell’s Trusts, In re, 341
Carew, Clive v. 856
v. Cooper, 429
Carew’s Estate, Re, 178
Carpmael v. Powis, 87
Carr v. Living (No. 2), 808
Carr’s Trusts, In re, 880
Carrington, Evans v. 898-900
Carron Company, Strainton ».
664
Carter, Beioley v. 424
Bell v. 509
v. Carter, 34, 535
v. Wake, 605, 612
Cartwright, Thompson v. 190
Carvalho, Burn »v. 435
Caspell v. Dubois, 149
Castle v. Castle, 233
v. Wilkinson, 416
Catchpole, Bradwell v. 372
Cathcart v. Robinson, 424
Caton v. Rideout, 855
Catt v. Tourle, 141
Cavander v. Bulteel, 187, 190
Cavendish v. Geaves, 661
XXVill

Cecil, Webster v. 424
Challis, Rogers v. 451
Chambers v. Crabbe, 149
». Goldwin, 804
Chaplin v. Young (No. 2), 365
Chapman, Fitzgerald v. 900
Charlesworth v. Jennings, 112a
Charlton v. West, 704
Charnley, Woodford v. 421
Chartered Bank of India, etc., v.
Henderson, 439
Chauntler’s Claim, In re Hasel-
foot’s Estate, 604
Cheese, Tench v. 467, 477
Cheeseborongh, Cordingley v.415
Cherrill, Smith v. 183
Chertsey Market, In re, 371
Chesterfield (Earl of ), Attorney-
General v. 465
v. Janssen, 165
Chew et al., Gaines et ux. v. 105
Chichester, Coventry v. 704
(Lord) v. Coventry,
704, 706
Child v. Mann, 744
Phipps v. 661
Childs, Trist v. 142
Chiles, Boone v. 33, 34
Chorlton, Newton v. 655
Chowne v. Baylis, 435
Chubb ». Stretch, 856
Churchill v. Churchill, 681
Clark, Ames v. 238
Beatty v. 79
v. Clark, 475
Cornish v. 183
v. Fergusson, 771
v. Leach, 639
v. Malpas, 123
Clark’s Ex’rs., Russell ». 12
Clarke, Fenwick v. 355
v. Franklin, 299
v. Hilton, 301
Parker v. 581
Clarkson, Tildesley v. 424
Clegg v. Edmonson, 33, 333
v. Rowland, 383
Clements, Wilkinson v. 424

 

TABLE OF CASES.

Clemow, Francis v. 304
v. Geach, 384
Clendinen, Hitchcock v. 890
Clifton, Wintour v. 681, 682,
690
Clive v. Carew, 856
Coburn, Parker v. 712
Cochrane v. Willis, 87, 424
Cockell v. Taylor, 123
Cockerell, Munch ». 371
Stuart v. 436
Codrington v. Lindsay, 689
Coenen, Taylor v. 183
Cogan v. Duffield, 89
Cohen, Onions v. 725
Coke, Prees v. 158
Coole v. Willard, 712
Coleman, Imperial Mercantile
Credit Association v. 333
Coles v. Pilkington, 447
Collier v. McBean, 424
Collins, Bayspoole v. 196
Eddleston v. 574
Turner v. 149, 150
Colshead, Wall v. 300
Colthurst, Tomkins v. 475
Colyer v. Finch, 34, 585
Comegys, Bigelow v. 133
Commissioners of Public Works
v. Harby, 177
Comptoir d’Escompte de Paris,
Henderson v. 439
Comptoir d’Escompte de Paris,
Rodger v. 439
Comstock v. Johnson, 39
Conron v. Conron, 305
Consequa v. Willings, 85
Consolidated Investment and In-
surance Co, v. Riley, 535
Conyers, Wake v. 720
Cook v. Addison, 363
Beynon v. 169
v. Gregson, 469
Miller v. 40, 168, 170
v. Rosslyn (Earl of ), 741
Hickman ». 720
v. Tullis, 489
Cooke, Jeans x. 314
TABLE OF CASES.

Cooke v. Lamotte, 200
Vorley v. 112
a Somerset (Duke of ) v.

Coombs, Pain v. 448
Cooper, Aldrich, v. 493

Carew v. 429

v. Cooper, 681

Haymes v. 617

v. Joel, 725

v. Macdonald, 708

v. Phibbs, 87

v. Wormald, 376
Corbett, Acraman v. 183
Corcoran, Judson v. 435
Conger v Cheeseborough,

5

Corles, Dipple v. 230
Corn Ex. Ins. Co. v. Babcock,
856
Cornelius, Taylor v. 509
Cornish v. Clark, 183
Cory v. Eyre, 50, 529
Cosnaham v. Grice, 223
Cotterell v. Stratton, 521
Cotton, Garth v. 319.
Coutts v. Acworth, 200, 681
Coventon, Cox v. 424
Coventry v. Chichester, 704
Chichester (Lord) ».
704, 706
». Coventry, 477

Coverdale v. Eastwood, 450
Cowan, Stokoe »v. 183
Cowdry v. Day, 154
Cowell v. Gatcombe, 356
Cowgil v. Rhodes, 753
Cowles v. Gale, 413
Cowls v. Cowls, 792, 799
Cowne, Spaight v. 190
Cowperthwaite, Jones v. 856
Cox, Addison v. 436

Ayles v. 424

v. Bishop, 438

v. Coventon, 424

Horsley v. 32

Page v. 232

Somerset v. 436

 

XXIX

Crabbe, Chambers v. 149
Craddock, Lake v. 315
Cradock v. Owen, 294
Craig v. Leslie, 47, 295, 301, 409

v. Parkis, 436
Cram v. Mitchell, 162
Crampton v. Varna Railway

Company, 405

Craven, Bentley v. 160
Crawshay v. Maule, 637
Cregoe, Gulley v. 233
Crehore, Gibson v. 558
Crealock, Heath v. 34
Croft v. Graham, 168

v. Thompson, 762

Roberts v. 592
Crompton v. Pratt, 464
Crosky, Barry v. 112a
Crosskill v. Bower, 365
Crossland, Sugden v. 365
Croucher, Slim v. 112a, 177
Croxton v. May, 883
Croy, Jackson v, 123
Cubitt, Stansfeld v. 436
Cuddee v. Rutter, 405, 453
Cullen, Graeme v. 567
Culverwell, Douglas v. 124
Cumberland, Scott v. 475
Cumpston, Butler v. 856
Curnick v. Tucker, 233
Curtis v. Engels, 856
Cutler, In re, 871 883

D.

Dady v. Hartridge, 475

Dakin v. Whimper, 193

Dally v. Wonham, 160, 169
Dance v. Goldingham, 377
Danforth v. Streeter, 431
Daniel v. Arkwright, 89
Daniel, Bank of United States

v. 82
Gibbs v. 154
Darbey v. Whitaker, 440

Darby v. Darby, 647
Harbin v. (No. 1), 345
XXX

Dare, Greenslade v. 34
Darell, Egmont v. 753
Darling, Green v. 661
Lewis v. 57
Dartmouth (Earl of), Howe v.
359
Darville v. Terry, 183
Davenport, Farral v. 448
Davey, Attorney-General ». 278
Millett v. 514
Davidson, Quayle v. 233
Davies v. Davies, 76, 147, 149
McHenry v. 856
v. Nicolson, 488
Davis, Hitch v. 220
Daw »v. Terrell, 592
Dawson v. Bank of Whitehaven,

Berdoe v. 149

v. Dawson, 708

Row v. 435
Day, Cowdry v. 154

v. Day, 436
Day, Holmes v. 655
Deacon, Pearl v. 655
Deare v. Soutten, 904
Dearsley, Swaisland v. 424
Dederer, Yale v. 856
~ Hoghton v. Money, 431,
31

De la Touche’s Settlement, In re,

89
Delbridge, Richards v. 230
De Mattos, Worseley v. 247
Dening v. Ware, 183, 421
Denne v. Light, 424
Denny v. Hancock, 424, 425
Dent, Wilkinson ». 681
Denton v. Donor, 161
Salusbury v. 284
Dering v. Winchelsea (Earl of),
633
Devaynes v. Noble, 464
v. Robinson, 371
Devoy v. Devoy, 313
Dewey v. Allen, 345
Dewitt, Hallenback v. 123
De Witte v. Palin, 805

 

TABLE OF CASES.

D’Eyncourt v. Gregory, See In-
DEX, HEIRLOOMS.
Dick, Kimberley ». 448, 454
Dilkes v. Broadmead, 487
Dillwyn v. Llewelyn, 731
Dilrow v. Bone, 421
Dimmock v. Hallett, 424
Dimsdale v. Dimsdale, 125, 149
Diplock v. Hammond, 435
Dipple v. Corles, 230
Di Sora v. Phillipps, 58
Dixie v. Wright, 409
Dixon, Lamare v. 427
Mangles v. 439
v. Muckleston, 592, 593
v. Peacock, 323, 628
Dobson, Harshaw ». 131
Racey v. 160
Dobson, Stocks v. 487
Doe .d. Hiscocks v. Hiscocks,
100 :
Dolan v. Macdermot, 275
Dolphin v. Aylward, 193
Donaldson v. Donaldson, 421
Doncaster v. Doncaster, 236
Donner, Denton v. 161
Douglas v. Culverwell, 124
Mackay »v. 184
Dowle v. Saunders, 535
Dowling v. Betjemann, 405
Downes v. Jennings, 33, 182
Drane v. Gunter, 567
Drew v. Lockett, 655
v. Martin, 313
Drosier v. Brereton, 352
Druiff v. Parker (Lord), 89
Drury, Walker v. 882-4
Drysdale, Nevin v. 708
Dubois, Caspell v. 149
Duffield, Cogan v. 89
Duffy’s Trust, Re, 879
Dugdale v. Dugdale, 475
Dumper v. Dumper, 313
Duncombe v. Greenacre, 871, 872
(No. 2), 883
Dunkley ». Dunkley, 883
Dunsany (Lady), Wilson .v. 504
Durfee v. Old Colony R. R., 777
TABLE OF CASES.

Dae (Earl of) », Legard (Sir
-), 416
Durston, Grosvenor v. 681

Dyer v. Dyer, 311

E.

Eaden v. Firth, 770
Eames, Lambe v. 233
Easterbrook v. Tillinghast, 285
Eastham, Willard v. 856
Eastman, Van Vronker v. 518
Eastwood, Coverdale v. 450
Thomson v. 267
Eaton v. Bennett, 91
v. Watts, 233
Eaton v. Whittaker, 448
Eaves v. Hickson, 357
Ede, Paget v. 54
Eddels v. Johnson, 475
Eddleston v. Collins, 574
Edmondson, Clegg v. 38, 333
Edmunds v. Low, 712
Edwards, Hughes z. 33
Edwards, Phillips v. 448
Saunders ». 30, 236
v. Trumbull, 592
Egmont v. Darell, 753
Eleock v. Mapp, 294
Elibank (Lady) v. Montolieu,
page 447, n.
Elliot v. Merryman, 192, 257
Ellis, Bouts v. 220
Ellison v. Ellison, 193, 245
Elsworth, Anderson v. 200
Elwes v. Elwes, 90
Emuss, Galton v. 178
Engel, Curtis v. 856
England, Bond v. 479
Webb v. 405, 819
Erwin, Parham v. 122
Espey v. Lake, 149
Espin v. Pemberton, 535
Essell v. Hayward, 640 :
Etting v. Bank of the United
States, 116
Evans v. Bagshaw, 718
v. Bremridge, 658

 

XXxl

Evans, v. Carrington, 898-900
Rowlands v. 640
Williams v. 447

Everett, Smith v. 386

Everitt v. Everitt, 733

Eyden, Gibbins v. 475

Eykyn’s Trusts, 313

Eyre, Cory v. 50, 529
v. Shaftesbury (Countess

of ), 792

F.

Fabia’ Nunn v. 447
Fackerell, Bagster v. 300
Fairer v. Park, 712
Fane v. Fane, 87
Fairfax, Agar v. 715
Faithfull, In re, 616
Falcke v. Gray, 405, 424
Fane v. Fane, See InpEx, HErR-
LOOMS.
Fardell, Baud v. 351
Farnham v. Brooks, 162
Farquharson v. Floyer, 475
Farrall v. Davenport, 448
Farrall, Jones v, 435
Fenwick v. Clarke, 355
v. Potts, 592

Fergusson, Clark v. 771
Fewkes, Barrs v. 233
Field v. Peckett (No. 3), 402
Fielder, Laver v. 33, 449, 450
Finch, Colyer v. 34, 535

v. Shaw, 535

Thompson v. 366
Firth, Eaden v. 770
Fish v. French, 725
Fishar, Harman v. 247
Fisher v. Baldwin, 661
Fitzgerald v. Chapman, 900
Fitzsimons v. Fitzsimons, 681
Fleming v. Buchanan, 475
Fletcher v. Ashburner, 47, 409

v. Fletcher, 421

Floyer, Bostock v. 357

Farquharson v, 475
Flowers, Stewart v. 616
XXXil

Fluker v. Taylor, 454
Fooks, Strange v. 33, 164, 655
Forbes, Firth v. 614
Ford, Re, 882
Barnard v. 875
v. Olden, 553
Ford, Stockton v. 154
v. White, 598
Forster, Honywood »v. (No. 2),
681
Fossick, Ogden v. 424
Foster, Haven v. 85
Foster and Lister, In reyj97
McCreight v. 40
v. Roberts, 169
Shaw v. 407
Fowkes, Wilkinson v. 39
Fowler v. Fowler, 89
Marshall v. 883
Fowler’s Trust, In re, 681
Fox v. Fox, 233
v. Mackreth, 333
Foxcroft, Lester v. 447
Foy, Sharpe v. 190, 903
Francis v. Brooking, 883
v. Clemow, 304
v. Francis, 616
Viner v. 210
Frankel, Garrard v. 89
Franklin, Clarke v. 299
Frazer, Norris v. 234
Freeman v. Lomas, 663
v. Pope, 183
French, Fish v. 725
Rost v. 133
Shee v. 183, 469
Friend, Pembroke v. 482
Firth v. Forbes, 614
Frost v. Belmont, 142
Fryer, Hensman ». 475
Fullerton v. Martin, 236
Fynney, Piercy v. 662
Fytche v. Fytche, 697

G.

Gaby, Stump v. 155
Gaffee, In re, 852

 

TABLE OF CASES.

Gaines et ux. v. Chew et al,
105
Gale, Cowles v. 413
v. Gale, 422
Gallagher, Johnson »v. 856
Galton v. Emuss, 178
Gandell, Rodick v, 435
Gardner v. Gardner, 855
Ware v. 183
Garnett, McCormack v. 883, 890
Garrard v. Frankel, 89 -
Garrick, Burdick v. 462
Garth v. Cotton, 319
v. Townsend, 79
Gatcombe, Cowell v. 356
Gay, Wadhams ». 31
Geach, Clemow ». 34
Geary, Union Bank of George-
town v. 88
Geaves, Cavendish v. 661
Geldard, Robinson ». 496
Gellatly, Brown »v. 359
Gent v. Harris, 883
Gerken’s Estate, 477
Giacometti v. Prodgers, 871
Gibbins v. Eyden, 475
v. Taylor, 366
Gibbs v. Daniel, 154
v. Harding, 896
Sharshaw v. 628
Gibson v. Crehore, 558
v. Goldsmid, 39
Harrison v. 33
Lake v. 35
5 v. Seagrim, 493
Gilbard, Gynn v. 801
Gilbert v. Lewis, 830
v. Overton, 421
Gilbertson v. Gilbertson, 477
Gill v. Schley, 133
Gillian v. Brown, 712
Gilliat v. Gilliat, page 484, n.
Gilmore, Huntington v. 220
Gill’s Estate, 710
Girod, Michoud ». 545
Gleaves v. Paine, 882
Glengall (Earl of), Thynne
(Lady E.) v. 447, 704
TABLE OF CASES.

Glenn, McNeal v. 247
Glenorchy (Lord) 2. Bosville, 30
89, 236
Glover, Re, 280
Glyn, Harding v. 79, 233, 283
Goddard v. Whyte, 655
Godlee, Reynolds v. 298
Goff, Wright v. 89
Goldingham, Dance v. 377
Goldsmid, Gibson v. 39
Goldwin, Chambers v. 804
Goldwire, Legg v. 89
Goodwin, Brittlebank v. 462
Goodyear, Murrell v. 205
Gott, Allen v. 477
Heptinstall v. 301

Goulder v. Camm, 830
Graeme v. Cullen, 567
Graham, In re, 801

Croft v. 168

v. Johnson, 153

v. Wickman (No. 1),

714

Grane, White v. 806
Grant v. Grant, 230, 421, 824
Wynch v. 874
Gratz, Brashier v. 413
Prevost v. 33
Graves v. Boston Marine In-
surance Co., 89
Gray, Baker v. 530
Falcke v. 405, 424 .
Richmond v. 424 ~
v. Russell, 774
Green, Bethell v. 475
v. Britten, 830
v. Darling, 661
v. Marsden, 233
v. Wynn, 164
Greenacre, Duncombe ». 871, 872
(No. 2), 883
Greenhill, Attorney-General v.
285

Willes v. (No. 1, 2),
436
Greenslade v. Dare, 34
Greenwich Tanning Company,
Reeves v. 424

 

XXxiil

Greenwood v. Greenwood, 88,
125
_ _ Middleton ». 668
Gregory, D’Eyncourt v. See In-
. DEX, HErrLooms
Jones v. 105
v. Wilson, 676
Gregson, Cook v. 469
Grenfel, Paget v. 704
Gresley v, Mousley, 38, 154
Greville v. Browne, 804
Grice, Cosnahan v. 223
Griffiths v. Porter, 356
Grindle, Blaiklock v. 686
Grissell v. Swinhoe, 681
Grogan, McCormick v. 238, 234
Grosvenor v. Durston, 681
v. Sherratt, 175
Grove’s Trust, Re, 883
Grymes v. Sanders, 84
Guedalla, Mendes ». 356
. Montefiore v. 708
Guest, Harrison v. 122, 123
Gully v. Cregoe, 233
Gummow, Budge v. 352
Gunter, Drane v. 567
Gutteridge, Phillips v. 589
Gye, Knox ». 461
Gynn v. Gilbard, 801

H.

Hackett, Stone v. 421
Haddon, Seycraft v. 856

-| Haigh v. Kay, 179

Haight v. Moore, 149
Hall, Airey v. 421
v. Hall, 200
Rossiter v. 776
Hallenback v. Dewitt, 123
Hallett, Dimmock v, 424
Hamilton v. Buckmaster, 424
Hammond, Allen v. 87
‘Diplock v. 435
v. Smith, 712
Hanbury, Parkinson »v. 514, 515,
548, 545
XXXIV

Hance v. Truwhitt, 683
Hancock, Denny v. 424, 425
Hannah v. Hodgson, 149
Harbin v. Darby (No. 1), 845
Harby, Commissioners of Public
Works v. 177
Harcourt, Jenkinson v. 479
v. White, 33
Hardaker, Stead v. 475
Hardenburg, Texas v. 50
Harding; Gibbs v. 896
v. Glyn, 79, 233, 283
St. Albyn v. 169
Harman »v. Fishar, 247
Harms v. Parsons, 141
Harris, Atlantic Bank v. 187
v. Brooks, 164
Gent v. 883
v. Harris (No. 1), 396
UW Mott, 848
v. Pepperell, 89
v. Watkins, 302, 304
Harrison, Alton v. 183
Buchanan »v. 295, 300
v. Guest, 122, 123
v. Gibson, 33
v. Harrison, 294
Miles v. 496
v. Randall, 391
Rooper v. 535
v. Tennant, 640
Harshaw v. Dobson, 131
Hart, Rolland v. 190
v. Tribe (No. 4), 233
Hartland v. Murrell, 302
Hartley, Barrett v. 345, 365
Hartridge, Dady ». 475
Harvey, Millard ». 901
Haselfoot’s Estate, In re, Chaunt-
ler’s Claim, 604
Hassell v. Hawkins, 712
Hastings, Ex parte, Bubb ». Yel-
verton, 768
Haven v. Foster, 85
Hawkes v. Hubback, 852
Hawkins, Hassell v. 712
Hay, Heald v. 429
Hayden »v. Kirkpatrick, 588

 

TABLE OF CASES.

Haygarth v. Wearing, 112a
Haymes, Brooke »v. 89
v. Cooper, 617
Hayward, Essell v. 640
Headland, Williams v. 383
Heald v. Hay, 429
Heap, Schofield v. 708
Hearn, Woolam »v, 449
Heath v. Crealock, 34
Loxley v. 450
Heather v. O’ Neil, 574
Hellicar, Powell v. 220
Henderson, Chartered Bank of
India, ete., v. 439
». Comptoir d’Es-
compte de Paris,
439
Hendrie, Palmer v. 549
Hendrickson v. Hinckley, 661
Henniker, Wythe v. 498
Hensman v. Fryer, 475
Henty, Caballero v, 424
Heptinstall v. Gott, 301
Hepworth v. Hepworth, 313
Herbert, Sinnett v. 276
Hewison v. Negus, 197, 823
Hewitt v. Kaye, 220
Webb ». 164, 657
Heyl, Wainford v. 856
Hickman v. Cook, 720
Hickson, Eaves v. 357
Higgins, Morgan »v. 156
v. Samels, 424
Hill v. Boyle, 431
Hillman, Lewis v. 154
Hilton, Clarke v. 301
v. Woods, 430
Hinckley, Hendrickson v. 661
Be Lessee v. Longworth,
18
Hine, Picard v. 856
Hingston, Parnell v. 421

Hiscocks (Doe d.) v. Hiscocks,

100
Hitch v. Davis, 220
Hitchcock »v. Clendinen, 890
Hitchman v. Stewart, 635
Hives, Adsetts v. 133
TABLE OF CASES.

Hobday v. Peters (No. 1), 583
(No. 2), 857
Hoddel v. Pugh, 411
Hodge, Tynte v. 169
Hodgson v. Bibby, 33
Hannah v. 149
Lister v. 102
Marine Insurance Co.
of Alexandria, v. 762
Hoghton v. Hoghton, 149°
Holcombe, Story v. 774
Holl, Perry v. 190
Holland v. Holland, 374
Holden v. Stickney, 567
Holloway v. Radcliffe, 409
Holman v. Loynes, 154
Holmes v. Penny, 183
Swan v. 681
v. Day, 655
Holmes’s Estate, Re, 155
Holmesdale (Viscount), Sack-
ville-West v. 237
Holroyd tv. Marshall, 436
Holtby, Bell v. 424
Homans, Morgan »v. 345
Home, Lyon v. 200
Honywood wv. Forster (No. 2),
681
Hood v. Oglander, 233
Hooper, Bate v. 359-
v. Smart, 415
Turnley v. 183
Hope v. Hope, 57
Hopgood »v. Parkin, 257
Hopkinson, Rolt v. 530
Hopwood v. Hopwood, 708
Horsley v. Cox, 32
Horton v. Brocklehurst (No. 2),
366
Hotten v. Arthur, 774
Houlston, Jarrold v. 774
Howard, ete., Ass’n., Shannon v.
674
Waters v. 681
Howe v. Dartmouth (Earl of),
359
Howell, United States v. 164
Pankhurst v. 710

 

XXXV

Howell, Wheeler v: 304
Howells v, Jenkins, 681
Howlett, Lee v. 535
Hubback, Hawkes v. 852
Hubbard, Boynton »v. 136
v. Shaw, 514
Hudson, Phillips v. 749
v. Temple, 413
Thompson v. 518, 54%,
558, 674, 678
Hughes v. Edwards, 33
v, Jones, 415
Sayre v, 313
Voyle v. 421
Huguenin v. Baseley, 148, 200
Hull v. Sherwood, 655
Hulme ». Tenant, page 423, n.
Humphreys, Richards v. 710
Hunt v. Hunt, 896
Moultrie v. 504
v, Rousmaniere, 83
Hunter v. Belcher, 460
v. Walters, 114, 115, 133.
Huntingdon (Earl of) v. Hun-
tingdon (Countess of ), 320, 574
Huntington v. Gilmore, 220
Hurst, Padwick v. 454
Smith v. 248
Hutchinson, Bold v. 95
Metcalf v. 310
Hutt, Broughton v. 81
Hutton v. Rossiter, 112a

I.

Iggulden, Lancefield v. 475
lliffe, Smith v. 89
Illingworth, Leyland v. 424
Imperial Mercantile Credit As-
sociation v. Coleman, 333
Ingham, Rogers v. 83
Ingilby, Campbell v. 67
Inman v. Inman, 536
Inns, Benwell v. 141
Inskip, Braybroke v. 585
Insole, In re, 832
Ton v. Ashton, 477, 480
xxxvi

Iremonger, Barnwell v. 475
Irvine »v. Sullivan, 234

J.

Jackson, Biddle v. 816
v, Croy, 123
Lane v. 34
v. Pease, 475
Pease v. 187, 530, 580,
582
Sinclair v. 31
Tiernan v. 435
Tyson »v, 431
Jacques, Methodist Episcopal
Church ». 848
Jacubs v. Rylance, 375.
Jaeger, Moore v. 54
James v. James, 601
v. Lichfield, 190
Janssen, Chesterfield (Earl of )
v. 165
Jarratt v. Aldam, 147
Jarrold v. Houlston, 774
Jarvis, Shillibeer v. 448
Jauncey v. Attorney-General,
496
Jeaffreson, Ogilvie v. 34, 112,
190

Jeans ». Cooke, 314
Jefferies v. Mitchell, 712
Jegon v. Vivian, 749
Jenkins, Ayerst v. 732
Howells v. 681
v. Jones, 541
v. Pye, 149
»v, Stetson, 169
Jenkinson v. Harcourt, 479
Jenner v. Morris, 661
Jennings v. Baddeley, 640
». Broughton, 112
Charlesworth v.112a
Downes v. 38, 182
J oe (Countess of ), Stackhouse

vw.
Jervis 7. Wolferstan, 392a, 393
Jervoise v. Jervoise, 828

 

TABLE OF CASES.

Joel, Cooper v. 725
Johnson, Comstock v. 39
Eddels v. 475
v, Gallagher, 856
Graham v. 153
Kellaway v. 372
Park v. 424
». Wyatt, 668
Johnston, Kay v. 323
Jones, Briggs v. 535
v, Cowperthwaite, 856
v. Farrell, 435
v, Gregory, 105
Hughes v. 415
Jenkins v. 541
v, Lock, 421
Nicholl v. 902
Ravenscroft v. 709
v. Ricketts, 169
Rogers v. 681
v. Thomas, 740
Walker v. 580
Judge, Tomson »v, 154, 155
Judson v. Corcoran, 435

K.

Kane v. Bloodgood, 33
Kay v. Johnston, 323
». Smith, 112
Kay, Smith ». 153
Kaye, Haigh ». 179
Hewitt v. 220
Keane v. Robarts, 370
Keech 2. Sanford, 333
Keep, Beech v. 421
Keith v. Burrows, 53
Kekewich v. Manning, 421
Kellaway v, Johnson, 372
Kellett, Russell v. 276
Kelson v. Kelson, 193
Kemp v. Burn, 400
Eerie Society titi
96

Kempson v. Ashbee, 149, 150
Kempton, Burnham v. 770
Kennard v, Kennard, 79
TABLE OF CASES.

Kennedy, Broun v. 93, 148, 153
v. Parke, 436
Kenny v. Udall, 814
Kensington (Lord) v. Bouverie,
629
Rooke v. 90
Kent v. Riley, 183
Kerr’s Policy, In re, 600
Kerry, Phillipson v. 93, 102, 200
Kilvert’s Trusts, In re, 275
Kimber v. Barber, 160
Kimberley v. Dick, 448, 454
Kincaid’s Trusts, In re, 871, 883
King, Savory v. 149, 154
Kinnear, Bonser v. 233
Kirkpatrick, Hayden v. 588
United States ».

464
Kirkwood v. Thompson, 545, 555
Klinck v. Price, 506
Knight v. Knight, 888
Seagram v. 33
Knott, Perry v. 371, 372
Knox v. Gye, 461
Koeber v. Sturgis, 883
L.
Lacon v. Allen, 592
Lacy, Tinsley v. 775
Lagow, Neilson v. 316
Laing, Tucker v. 164
Lake v. Craddock, 315
Espey v. 149
Lake v. Gibson, 35
Lamare v. Dickson, 427
Lambarde ». Older, 663
Lambe v. Eames, 233
v. Orton, 421
Lambert, Merritt v. 430
v. Thwaites, 284
Lamotte, Cooke v. 200
Lamprell, Trutch v. 366
Lancaster and Carlisle Railway
Company v. Northwestern
Railway Company, 777
Lancefield v. Iggulden, 475

 

XXXVI

Lane v. Jackson, 34
Perfect v. 169
Langdale (Lady) v. Briggs, 479
Langdon v. Astor’s Ex’rs., 704
Larcher, Bright v. 477
(No. 2), 38, 476
Larios v. Bonany y Gurety, 451
Larkin v. Mann, 477
Lathrop v. Amherst Bank, 430
Laver v. Fielder, 33, 449, 450
Law, Sloo v. 365 3
Lawless, Parfit v. 148
Lawrance, Brownson v. 475
Layard v. Maud, 535
Leach, Brown v. 112
Clark v. 639
Sharp v. 148, 169, 200
Leary v. Shout, 640
Leather Cloth Company v. Lor-
sont, 141
Lechmere v. Brotheridge, 848,
850
Le Clair, May v. 336
Ledger, Longmate v. 123, 124,
130
Lee v. Howlett, 535
v. Sankey, 367
Leeds Banking Company, In re,
856
Legard (Sir F.), Durham (Earl
of ) v. 415
Legerton, Bright v. 33
Legg v. Goldwire, 89
Lehmann ». McArthur, 33
Leicester (Corporation of ), At-
torney-General v. 372
Leigh v. Lloyd, 190
Leighton v. Leighton, 709
Le Marchant v. Le Marchant,
233
Lempritre, London Chartered
Bank of Australia v. 856-8
Le Neve v. Le Neve, 187
Le Roy, Watson v. 34
Leslie, Craig v. 47, 295, 301, 409
Lester v. Foxcroft, 447
L’Estrange v. L’ Estrange, 435
Lett v. Morris, 435
XXXVIii

Letts, Turner v. 616
Levaux, Smith v. 454
Lewis v. Darling, 57
Gilbert v. 830 -
v. Hillman, 154
v. Matthews, 830
New England Bank v. 250
O’Brien v. 155
v. Rees, 193
Ley, Price v. 102
Leyland v. Ilingworth, 424
Liebarrow v. Mason, 133
Lichfield, James v. 190
Life Association of Scotland ».
Siddal, 871
Light, Denne ». 424
Lightfoot, Menzies v. 530
Lilford (Lord) v. Powys Keck,
498
Lincoln ». Wright, 179
Lindgren, Wilkinson v. 275
Lindsay, Codrington v. 689
Lister, Foster and In re, 197
v. Hodgson, 102
Tidd v, 495, 891
Liverpool Borough Bank v. Tur-
ner, 609
Marine Credit Com-
pany v. Wilson, 608
Living, Carr v. (No. 2), 808
Llewelyn, Dillwyn ». 731
Lloyd »v. Attwood, 193
v. Banks, 436
Leigh v. 190
v. Pughe, 825
Wentworth ». 33, 160
Wilson ». 164
Lock, Jones v. 421
Lockett, Drew »v. 655
Locking v. Parker, 567
Lockwood, Scholefield ». ae Ds

(No, 2),
(No. 3),

558
Lodge v. Prichard, 649
Loffus v. Maw, 450

 

TABLE OF CASES.

Lomas, Freeman v. 663
Londesborough (Lord) v. Somer-
ville, 310
London Chartered Bank of Aus-
tralia v. Lempriére,
856-8
Hospital (Governors of),
Robinson v. 295
Long v. Bowring, 453
Longmate v. Ledger, 123, 124,
130
Longworth, Hind’s Lessee v. 183
Taylor v. 413, 424
Lonsdale, Prideau v. 182
Loomis v. Loomis, 436
Lord, Luff v. 365
Milroy v. 421
Lorsont, Leather Cloth Com-
pany v. 141
Loughborough, Barfield v. 646
Lovett v. Lovett, 754
Low, Edmunds »v. 712
Loxley v. Heath, 450
Loynes, Holman v. 154
Luck, Beevor v. 554
Lucy’s Case, 88
Luff v. Lord, 365
Lush’s Trusts, In re, 887
Lyddon »v. Moss, 155
Lyman, Parsons v. 504
v. United Ins. Co., 89
Lynn, Bank of Alexandria v. 424
Lyon v. Home, 200
Watson v. 616
Lyons (Mayor of) v. Advocate-
General of Bengal, 276
Lytton, Bennett v. 383

M.

McArthur, Lehman ». 33

McAvoy, Stock v, 318

McBean, Collier ». 424

MeCarogher v. Whieldon, 704,

McCormick v. Garnett, 883, 890
v Grogan, 233, 234
TABLE OF CASES.

McCreight v. Foster, 407
Macdermot, Dolan ». 275
Macdonald, Cooper v. 708
McDonnell v. White, 33
McGowan v. Remington, 791
McHenry v. Davies, 856
McIntosh v. Saunders, 89
McKnight v. Taylor, 33
Mackay, Bently v. 81
v. Douglas, 184
Mackeit v. Mackett, 233
Mackreth, Fox v. 333
v. Symmons, 327
McLaughlin». Bank of Potomac,
183
McLean, Telegraph Despatch,
etc., Company v. 424
Newton v, 34
MeNeal v. Glenn, 247
Macleod v. Annesley, 352
Macnab ». Whitbread, 233
Magawley’s Trust, Re, 183
Magdalen College v. Attorney-
General, 278
Maidstone (Lord), Wright v. 76
Major, Beecher v. 313
Malcolm v. Scott, 435
Malins v. Brown, 448
Malleson, Morgan ». 230
Malmesbury(Earl of ) ». Malmes-
bury (Countess of ), 89
Malpas, Clark v, 123
Manby v. Bewicke, 128
Mandeville v. Welch, 435, 592
Mangles v. Dixon, 439
Mann, Child v. 744
Mann, Larkin v. 477
Manning, Kekewich v. 421
Manningford v. Toleman, 316
Mapp, Elcock v. 294
Mare v. Sanford, 186
Marine Ins. Co. of Alexandria
v. Hodgson, 762
Marsden, Green v. 233
Marsden’s Trust, Re, 203
Marshall »v. Balto. and Ohio
R. R., 142
v. Fowler, 883

 

XXX1X

Marshall, Holroyd v. 436
Watson v. 883, 884
Marshfield, Talbot v, 401
Martin, Drew v. 313
Fullerton v. 236
v. Martin, 804
Mason, Liebarrow v. 133
Massie v. Watts, 54
Masson, Stevenson v. 708
Mathews, Lewis v. 830
Maud, Layard v. 535
Maude, Scales v. 421
Maule, Crawshay v. 637
Maw, Loffus v. 450
Maxfield v. Burton, 187, 190
Maxwell, Wells v. (No. 1), 413
May, Croxton v. 883
May ». Le Claire, 336
Mayor, Sharp v. 112a
Meacham »v. Sterne, 345
Meadows v. Meadows, 89
Meads, Taylor v. 849
Mellor, Stead v. 233
Melton, Ranelagh (Lord) v. 413
Mendes v. Guedalla, 356
Menzies v. Lightfoot, 530
Merchant Taylor’s Company v.
Attorney-General, 277
Merrett, Powell v. 294
Merriman v. Ward, 464
Merritt v. Lambert, 430
Merryman, Elliot v. 192, 257
Metcalfe v. Hutchinson, 310
Metcalfe’s Trusts, Re, 131, n.
Methodist Episcopal Church v.
Jacques, 848
Metropolitan Board of Works,
Buccleuch (Duke of ) v. 440
Michell, Jefferies v. 712
Michoud »v. Girod, 545
Micklethwait v. Micklethwait,
767
; Walker v. 59
Middleton v. Greenwood, 668
v. Pollock, 663
v. Windross, 681
Mildred v. Austin, 555
Miles v. Harrison, 496
xl

Millard v. Harvey, 901
Miller v. Cook, 40, 168, 170
v. Miller, 131
v. Thurgood, 681, 682
Millett v. Davey, 514
Mills v. Mills, 142
Milne, Wild »v. 644
Milroy v. Lord, 421
Milwaukee R. R. Co. v. same,
431
Minshull, Bernard v. 235
a and Mo, R. R. v. Ward,
770
Mitchell v. Mitchell, 475
Cram v. 162
Money, De Hoghton »v. 431, 731
v. Money, 815
Monk, Baker v. 128, 124
Montefiore v. Guedalla, 708
Montolieu, Elibank (Lady) ».
page 447, n.
Moore, Blandheir v. 785
Haight v. 149
v. Jaeger, 54
v. Moore, 220, 230
v. Morris, 847, 851, 852
v. Petchell, 474
Mordaunt, Noys v. 681
Morgan v. Higgins, 156
». Homans, 345
v, Malleson, 230
Morgan, Spread v. 692, 693
Walters v. 118, 424
Morley v. Morley, 626
Morris, Aylesford (Earl of) ».
168, 171
Jenner v. 661
Lett v. 435
Moore v, 847, 851, 852
Morse’s Settlement, In re, 89
Mortimer v. Bell, 424
Payne v. 428, 492
Mosely v. Simpson, 441, 442
Mosley v. Ward, 689
Moss v, Bainbrigge, 155
Lyddon ». 155
Mostyn (Lord), Brooke v. 88
v. Mostyn, 89, 100

 

TABLE OF CASES.

Mostyn, Townshend v. 479, 480
v. West Mostyn Com-
pany, 117
Mott, Harris v. 848
Mould, Penfold v. 885
Moultrie v. Hunt, 504
Mount, Biron v. 250
Mousley, Gresley v. 33, 154
Moxon v. Paine, 88, 108, 148
Muckleston, Dixon v. 592, 593
Mullings, Phillips v. 200
v. Trinder, 424:
Mumford v. Stohwasser, 529
Munch »v. Cockerell, 371
Mundford, Alston v. 493
Murphy, Paterson v. 230
Steele v. 250
Murray v. Parker, 89, 96
Murrell v. Goodyear, 205
Hartland »v. 302
Murrill v. Neill, 649
Mutlow v. Mutlow, 469
Myers v. United Guarantee Com-
pany, 431

N.

Nanney v. Williams, 155
Napier v. Napier, 883
National Provincial Bank, Ex
parte, In re Bolter, 89
Negus, Hewison v. 197, 823
Neill, Murrill v. 649
Neilson v. Lagow, 316
Nelson v. Stocker, 112
Nesbitt v. Berridge, 169
Neve v. Pennell, 554
Nevin v. Drysdale, 708
Newbery, In re, 796
New England Bank v. Lewis,
250

Newell, Palmer v. 714
Newman, In re, 156

v. Selfe, 542

v. Wilson (No. 2), 883
Newstead, Ridgway v. 33
Newton v. Chorlton, 655
TABLE OF CASES.

Newton, McLean », 34
v, Newton, 599
v, Sherry, 384
Nicholl v. Jones, 902
Nickolson, Upperton v. 424
Nicolson, Davies v. 488
Nightingale, Parker v. 204
Noble, Devaynes v. 464
Norfolk, Peabody v. 141
Norris v. Frazer, 234
Robertson ». 33, 541
Wooldridge v. 164
Northampton, etc, Railway
Company, Wilson v. 405
Northern Assam Tea Company,
In re, Ex parte Universal Life
Assurance Company, 439
North Metropolitan Railway
Company, Steele v. 777
Northwestern Railway Com-
pany, Lancaster and Carlisle
Railway Company ». 777
Northwestern Railway Com-
pany, Shrewsbury and Bir-
mingham Railway Company
», 424
Norton v. Norton, 316
Nosworthy, Basset v. 34, 338,
376 ,
Nottidge v. Prince, 130, 153
Noys v. Mordaunt, 681
Nunn v. Fabian, 447
Nye, Turner v. 228

O.

Oakes v. Turquand, 113

Obee v. Bishop, 462

O’Brien v. Lewis, 155
Ochsenbein v. Papelier, 54
Oelrichs v. Spain, 12

Ogden v. Fossick, 424

Ogilvie v. Jeaffreson, 34, 112, 190
Oglander, Hood v. 2383
O'Grady, Smith v. 463

Okeson’s Appeal, 477

 

D

xli

Old Colony R. R., Durfee v. 777
Olden, Ford v. 553
Older, Lambarde ». 663
Oliveira, Beaumont v. 496
Ollive, Weale v. 421
O’Neill, Heather v. 574
Onions v. Cohen, 725
Oppenheim, Bury »v. 149
Ordish, Wood v. 475
Oriental Commercial Bank ».
Savin, In re Bird,
357
Financial Corporation
v. Overend and Com-
pany, 164
Ormes v. Beadel, 424, 441
Orrell v. Orrell, 685
Orton, Lambe v. 421
Otis v. Beckwith, 421
Overend and Company, Oriental
Financial Corporation v. 164
Overton, Gilbert v. 421
Owen, Cradock v. 294
Thorp v. 233

P.

Padget, Vint v. 554
Padwick v. Hurst, 454
Page v. Cox, 232
Paget v. Ede, 54
v. Grenfell, 704
Pain v. Coombs, 448
Paine, Gleaves v. 882
Palin, De Witte v. 805
Palmer v. Hendrie, 549
v. Newell, 714
Vanderberg v. 230
Pankhurst v. Howell, 710
Papelier, Ochsenbein v. 54
Parfitt v. Lawless, 148
Parham, Erwin v. 122
Park, Fairer v. 712
v. Johnson, 424
Kennedy v. 436
Parker v. Barker, 744
xlii

Parker v. Clarke, 581
v. Coburn, 712
(Lord), Druiff v. 89
Locking v. 567
Murray v. 89, 96
v. Nightingale, 204
Smith v. 439
Parkin, Hopgood ». 357
Surtees v. 494
v. Thorold, 413
Parkinson v. Hanbury, 514, 515,
548, 545
Parkis, Craig v. 436
Parnell v. Hingston, 421
Parry, Phillips v. 475
Parsons, Harms v. 141
v. Lyman, 504
Paterson v. Murphy, 230
v. Scott, 494
Payne v. Mortimer, 423, 492
Moxon »v. 88, 108, 148
Peabody v. Norfolk, 141
Peachy v. Somerset (Duke of),
458, 670
Peacock, Dixon v. 323, 628
Pearce, Rolls v. 220
Pearl v. Deacon, 655
Pearmain v. Twiss, 475
Pearson v. Amicable Assurance
Office, 421
v. Benson, 154
Spencer v. 529
Pease v. 2 (i 187, 530, 580
2
Jackson v. 475
Peckett, Field v. (No. 3), 402
Peckham ». Taylor, 228, 230
Pegler v. White, 424
Pemberton, Espin v. 535
Pembroke v. Friend, 482
Penfould v. Mould, 885
Penn v. Baltimore (Lord), 54
Pennell, Neve v. 554
Penney, Holmes v. 183
Penny, Briggs v. 233, 235, 287
Pepperell, Harris v. 89
Pepper’s Will, 31, 79
Perfect v. Lane, 169

 

TABLE OF CASES.

Perry v. Holl, 190
v. Knott, 371, 372
v. Pratt, 720
Persee v. Persee, 125
Petchell, Moore v. 474
Peter v. Beverly, 47
Peters, Hobday ». (No. 1), 583
(No. 2), 857
Wheaton v. 774
Usticke v. 681
Peterson v. Peterson, 473
Petit v. Shepherd, 725
Pett, Robinson v. 163, 333, 336,
345
Phibbs, Cooper v. 87
Philanthropic Society v. Kemp,
496
Phillipps, Di Sora v. 58
Phillips v. Beal (No. 2), 387
v. Boardman, 204
», Edwards, 448
v. Gutteridge, 589
v. Hudson, 749
v. Mullings, 200
v. Parry, 475
v. Phillips, 454, 708
Phillipson v. Kerry, 93, 102,
200
Philpott v. St. George’s Hos-
pital, 277
Phipps v. Child, 661
Picard v. Hine, 856
Piercy v. Fynney, 662
Piggott v. Stratton, 204
Pilkington, Coles v. 447
Pilcher v. Rawlins, 34, 190
Pinchin v. Simms, 704
Pincombe, Smith v. 88
Pinniger, Surcombe v. 448
Piper v. Piper, 482
Planet Benefit Building Society,
Thompson v, 17
Pledge v. Buss, 655
Plenty v. West, 477
Plunkett, Buller v. 436
Pollard, Bone v. 313
Pollock, Middleton v. 663
Pomfret, Selby v. 554
TABLE OF CASES.

Poole, Ex parte, 316
Pooley v. Quilter, 162
Pope, Freeman v. 183
Porter v. Baddeley, 359 -
Porter, Griffiths v. 356
et al. v. Turner, 79
Portington, Taylor v. 420
Portland (Duke of ), Topham »v.
201
Pott v. Todhunter, 183
Potter, In re, 817
Potts, Fenwick v. 592
v. Surr, 149
Powell v. Hellicar, 220
v. Merrett, 294
v. Redfield, 678
v. Riley, 475, 477
v. Smith, 82, 426
Powis, Carpmael v. 87
Powys v. Blagrave, 763 .
Powys Keck, Lilford (Lord) »v.
498
Pratt, Crompton v. 464
Perry v. 720
Prees v. Coke, 158
Presbyterian Church, Voorhees
v. 160
Presgrave, Birkley v. 636
Prevost, Gratz v. 33
Price, Klinck v. 506
UV. Ley, 102
Prichard, Lodge v. 649
Pride v. Bubb, 849
Prideau v. Lonsdale, 182
Prime, Silk v. 302, 304, 469
Prince, Nottidge v. 130, 153
Probst v. Brock, 539
Prodgers, Giacometti v. 871
Prolev. Soady, 326
Pugh, Hoddel v. 411
Pughe, Lloyd v. 825
Pulsford v. Richards, 112, 112a,
116
Pusey v. Pusey, Somerset (Duke
of ) v. Cookson, 791
Pye, Ex parte, 698
Jenkins vr. 149
Pyrke v; Waddingham, 424

 

xliii

Q.

Quayle v. Davidson, 233 :

Queen, The, Shropshire Union
Railways, etc., Company, v. 50,
380, 529

Queen’s College, Oxford, War-
wick v. 749

Quilter, Pooley v. 162

R.

Racey, Dobson v. 160
Radcliffe, Holloway v. 409
Radford v. Willis, 424
Ramshire v. Bolton, 1124
Randall, Harrison v. 391
Ranelagh (Lord) v. Melton, 413
Rankin v. Weguelin, 220
Ravenscroft v. Jones, 709
Rawlins, Pilcher v. 34, 190
v. Wickham, 112 a, 640
Rayment, Scott v. 638
Read, Baker v. 33
Re Cornwall, 183
Re Kane, 806
Re Paschall, 616
Read v. Steadman, 294
Redfield, Powell v. 678
Rees v. Berrington, 164
Lewis v. 193 ~
Reese River Silver Mining Com-
pany v. Atwell,
183
v, Smith, 112a, 146
Reeves v. Baker, 233
v. Greenwich Tanning
Company, 424
Rehden v. Wesley, 355
Reid v, Reid, 284
Remington, McGowan v. 791
Rensellaer, Wendell v. 177
Reynell v. Sprye, 112, 145, 430
Reynolds v. Godlee, 298
Rexford v. Rexford, 50
Rhodes v. Bate, 148
Cowgill v. 753
Rice v. Rice, 50, 529
xliv

Richards v. Delbridge, 230
Richards v. Humphreys, 710
Pulsford v. 112, 112a,
116
Richardson v. Richardson, 421
v, Smith, 424
Richens, Rudge v. 549, 550
Richmond v. Gray, 424
Ricketts, Jones v. 169
Rideout, Caton v. 855
Ridgway v. Newstead, 33
Rigden, Vane (Earl) v. 382
Riley, Consolidated Investment
and Insurance Com-
. pany v. 535
Kent v. 183
Powell v. 475, 477
Ripley v. Waterworth, 299
Robarts, Keane v. 370
Roberts v. Croft, 592
Roberts, Foster v. 169
Roberts v. Weatherford, 704
Robertson v. Norris, 33, 541
Robinson, Cathcart v. 424
Devaynes v. 371
v. Geldard, 496
v. London Hospital
(Governors of ),295
v, Pett, 168, 333, 336
345
v, Wheeler, 762
v. Wheelwright, 853
Rodger v. The Comptoir d’Es-
compte de Paris, 439
Rodick v. Gandell, 435
Rodway, Sanders v. 896
Rogers v. Challis, 451
v. Ingham, 83
v, Jones, 681
Warriner v. 230, 436
Wyke v. 164
Rolland v. Hart, 190
Rolls v. Pearce, 220 ~
Rolt v, Hopkinson, 530
v, White, 112, 439
Romney (Earl of), Bradford
(Earl of ) v. 89

 

TABLE OF CASES.

Rooke, Brooke v., In re, Brooke,
304

v. Kensington (Lord), 90
Rooper v. Harrison, 535
Rose, Simmons v. 477

v. Watson, 408
Rosher v. Williams, 193, 194
Rossborough, Boyse v. 130, 131
754

Rossiter v. Hall, 776
Rossiter, Hutton v. 112a
Rosslyn (Earl of ), Cook v. 741
Rost v. French, 133
Rotherham v. Rotherham, 475
Rousmaniere, Hunt ». 83
Routh, Blagrave v. 33
Row »v. Dawson, 435
Rowe v. Rowe, 359
Rowland, Clegg v. 383
Rowlands v. Evans, 640
Rowlandson, Ex parte, 649
Rowles, Ryall v. 436
Rudge v. Richens, 549, 550
Ruffin, Ex parte, 649
Russell v. Clark’s Ex’rs., 12

Gray v. 774

v. Russell, 592

Sears v. 316

v. Southard, 512

v, Kellett, 276
Russell’s Policy Trusts, In re,

436

Rutter, Cuddee v. 405, 493
Ryall v. Rowles, 436
Rylance, Jacubs v. 375

8.

Sacia v. Borthoud, 192

Sackville-West v. Holmesdale
(Viscount), 237

St. Albyn v. Harding, 169

St. oe s Hospital, Philpott».
2

St. Helen’s Smelting Company, 4
Tipping v. 770 a

St. Sauveur, Sharp v. 271
TABLE OF CASES.

Salmon v. Stuyvesant, 100
Salter, Batstone v. 313
v. Bradshaw, 169
Saltmarsh v. Barrett, 294
Salusbury v. Denton, 284
Samels, Higgins v. 424
Samuel v. Ward, 698
Sanders, Grymes v. 84
v. Rodway, 896
Sercombe v. 149
Sanderson, Stewart v. 354
Sandford, Keech »v. 333
Mare v. 186
Sanger v. Sanger, 859
Sankey, Lee v. 367
Sargent, Turner v. 236
Saunders, Dowle v. 535
», Edwards, 30, 236
McIntosh v. 89
Savage, Brown v. 436
Savery v. King, 149, 154
Savin, Oriental Commercial
Bank v., In re Bird, 357
Saxton, Sherwood v. 567
Sayre v. Hughes, 313
Scales v. Maude, 421
Schley, Gill v. 133
Schofield v. Heap, 708
Scholefield v. Lockwood (No. 1),
575

(No. 2),
89

(No. 3),
558
v. Templer, 115
Schroder v. Schroder, 683, 684
Scott v. Cumberland, 475
Scott, Malcolm v. 435
Paterson v. 494
v. Rayment, 638
v, Spashett, 876, 883
v. Tyler, 139
Scrivens, Wicks v. 554, 555
Seagram v. Knight, 33
Seagrim, Gibson v. 493
Sears v. Russell, 316
Seaton v. Twyford, 571
Selby v. Pomfret, 554

 

xlv

Selfe, Newman v. 542

Sells v. Sells, 90

Sercombe v. Sanders, 149

Seton v. Slade, 412

Sexton v. Wheaton, 183

Seycraft v. Haddon, 856

Shadbolt v. Vanderplank, 712

Shaftsbury (Countess of ), Eyre
v. 792

Shannon v. Howard, etc., Ass’n.,
674

Sharp v. Leach, 148, 169, 200

v. St. Sauveur, 271

Sharpe v. Foy, 190, 903

v. Mayor, 1124

Sharshaw v. Gibbs, 628

Shattock v. Shattock, 857

Shaw v. Bunny, 545

Finch v. 536
v. Foster, 407
v. Spencer, 285
Hubbard v. 514

Sheard, Sykes v. 424

Shearer v. Shearer, 647

Shee v, French, 183, 469

Shelley’s Case, 237

Shepard v. Brown, 454

Sheperd, Petit v. 725

Sherratt, Grosvenor v. 175

Sherry, Newton v. 384

Sherwood v. Andrews, 421

v. Hull, 655
v. Saxton, 567

Shillibeer v. Jarvis, 448

Shirley, Simmins »v. 5144

Shout, Leary ». 640

Shovelton v. Shovelton, 233

Shrewsbury and Birmingham
Railway Company v. North-
western Railway Company,
424 -

Shropshire Union Railways, etc.,
Company v. The Queen, 50,
380, 529

Sibley, Wilkins v. 381

Siddal, Life Association of Scot-
land v. 871
xlvi

Silk v. Prime, 302, 304, 469
Simmins v. Shirley, 5144
Simmons v. Rose, 477
Simms, Pinchin v. 704
Simpson, Moseley v. 441, 442
Sims v. Sims, 704, 707
Sinclair v. Jackson, 31
Sinnett v. Herbert, 276
Skarf v. Soulby, 183
Slade, Seton v. 412
v, Van Vechten, 365
Slemmer’s Appeal, 640
Slim v. Croucher, 112 a, 177
Sloo v. Law, 365
Smart, British Mutual Invest-
ment Company v. 597
Hooper v. 415
Smedley v. Varley, 161
Smee v. Baines, 661
Smith v. Allen, 762
Atkinson v. 196, 574
Ex parte, In re, Bank of
Hindustan, etc., 616
Bott v. 183
Bromley v. 169
v. Cherrill, 183
v. Everett, 386
Hammond ¢. 712
v. Hurst, 248
v. Iliffe, 89
Kay v. 112
v, Kay, 153
v, Leveaux, 454
v. O'Grady, 463
v. Parker, 439
v. Pincombe, 88
Powell v. 82, 426
Reese River Silver Min-
ing Company v. 112a,
146

Richardson v. 424
v, Smith, 883
Tassell v. 530
Walker v. 155
Wheeler v. 233
Whitbread v. 574
v. White, 145
Whitney »v. 353

 

TABLE OF CASES.

Smith, et al., Wheeler v. 165

Smithson, Ackroyd v. 295

Snell, In re, 616

Soady, Prole v. 326

So. C. Ins. Co., Spring v. 740

Somerset v. Cox, 436

(Duke of ) ». Cookson,

791

Peachy ».
453, 670
Somerville, Londesborough
(Lord) v. 310
Soulby, Skarf v. 183
South, Ex parte, 435
v. Bloxam, 494
Southampton Dock Company ».
Southampton Harbor and Pier
Board, 454
Southampton Harbor and Pier
Board, Southampton Dock
Company »v. 454
Southard, Russell v. 512
Soutten, Deare ». 904
Spaight v. Cowne, 190
Spain, Oelrichs v. 12
Sparhawk, Andrews v. 263
Spashett, Scott v. 876, 883
Spencer v. Pearson, 529
Shaw »v. 285
v. Topham, 154
Spicer v. Spicer, 871
oe v. Willows, 183, 830,
83
Spread v. Morgan, 692, 693
Spring v. So. C. Ins. Co., 740
Sprye, Reynell v. 112, 145, 480
Squires v. Ashford, 883
Staat ». Bergen, 333
Stackhouse v. Jersey (Countess
of ), 50
Stainton v. Carron Company, 664
Staniforth, Talbot v. 169
Stansfield v. Cubitt, 436
Stapilton v, Stapilton, 88, 125
Stead v. Hardaker, 475
v. Mellor, 233
Stedman, Read v. 294
Steele v. Murphy, 250
TABLE OF CASES.

Steele ». North Metropolitan
Railway Company, 777
Stephens v. Stephens, 681
Sterne v. Beck, 674 :
Meacham », 345
Stetson, Jenkins v. 169
Stevens, Barry v. 454
Stevenson v. Masson, 708
Steward, Ex parte, 435
v. Blakeway, 647
Stewart v. Flowers, 616
Hitchman v. 635
v, Sanderson, 354
Stickney, Holden v. 567
Stock v. McAvoy, 313
Stocker, Nelson v. 112
v. Wedderburn, 424, 896
Stocks v». Dobson, 437
Stockton v. Ford, 154
Stohwasser, Mumford v. 529
Stokes, Brice v. 348, 368
Stokoe v. Cowan, 183
Stone v. Hackett, 421
v. Stone, 267 -
Story v. Holcombe, 774
Strange v, Brennan, 155
v. Fooks, 33, 164, 655
Strathmore (Countess of) v.
Bowes, 182
Stratton, Cotterell v. 521
Piggott v. 204
Streatfield v. Streatfield, 681
Streeter, Danforth v. 431
Stretch, Chubb v. 856
Strong v. Strong, 183
v. Williams, 712
Stroughill v. Anstey, 263, 379
Stuart v. Cockerell, 436
Stump v, Gaby, 155
Sturgis, Koeber v. 883
Stuyvesant, Salmon v. 100
Sugden v. Crossland, 365
Suggitt’s Trusts, In re, 883
Sullivan, Irvine v. 234
Surcombe ». Pinniger, 448
Surr, Potts v. 149
Surtees v. Parkin, 494
Sutton v. Wilders, 357

 

xl vii

Swainson v. Swainson, 480
Swaisland v. Dearsley, 424
Swan, Re, 869

v. Holmes, 681
Swift v. Swift, 799, 823
Swinfen v. Swinfen (No. 5), 355
Swinhoe, Grissell v. 681
Sworder, Abbott v. 122
Sykes v. Sheard, 424
Symmons, Mackreth v. 327
Symonds, Beale v. 591

Walker v. 372

T,

Taite, Vivers v. 424
Talbot v. Marshfield, 401
v. Staniforth, 169
Tanner, Brown v. 436
Tarsey’s Trust, In re, 830
Tassell v. Smith, 530
Tate v. Williamson, 148
Withington v. 572, 578
Tatham v. Vernon, 421
Taylor v. Berham, 409
Cockell v, 123
v, Cornelius, 509
v. Coenen, 183
Fluker v. 454
Gibbons v. 366
v. Longworth, 413, 424
McKnight v. 33
v. Meads, 849
Peckham », 228, 230
v. Portington, 420
v. Taylor, 149, 295
v. Taylor et al., 165
Waters v. 637
Telegraph Dispatch, etc., Com-
pany v. McLean, 424
Tempest v. Tempest, 497
Temple, Hudson v. 413
Templer, Scholefield v. 115
Tenant, Hulme »v. page 422, n.
Tench v. Cheese, 476, 477
Tennant, Harrison v. 640
Terrell, Daw v. 592
xlvili

Terry, Darville v. 183
Texas v. Hardenberg, 50
The Alton M. and F. Ins. Co. v.
Buckmaster, 720
Thomas, Jones v. 740
Tilley v. 413
Thompson, Bibby v. (No. 1), 233
v. Cartwright, 190
Craft v. 762
v. Finch, 366
v. Hudson, 518, 547,
558, 674, 678
Kirkwood v. 545, 555
v. Planet Benefit
Building Society,
17
v. Tomkins, 436
v. Webster, 183
v. Whitmore, 90, 93
Thomson v. Eastwood, 267
Thorn, Waters v. 154, 155
Thornborough v. Baker, 339
‘Thornbury, Wilson »v. 691
Thorold, Parkin v. 418
Thorp v. Owen, 233
Thurgood, Miller v. 681, 682
Thurman v. Burt, 131
Thwaites, Lambert v. 284
Thynne (Lady E.) v. Glengall
(Earl of ), 447, 704
Tidd v. Lister, 495, 891
Tiernan v. Jackson, 435
Tildesley v. Clarkson, 424
Tilley v. Thomas, 413
Tillinghast, Easterbrook v. 285
Tinsley v. Lacy, 775

Tipping v. St. Helen’s Smelting:

Company, 770

Todhunter, Pott »v. 183

Toker v. Toker, 200

Tolman, Manningford v. 316

Tollet v. Tollet, 31, 79

Tomkins v. Colthurst, 475
Thompson v. 436

Tomson v. Judge, 154, 155

Topham v. Portland (Duke of),

201

Spencer v. 154

 

TABLE OF CASES.

Torre v. Torre, 89
Torr’s Estate, 493
Torry v. Bank of New Orleans,
160
Tourle, Catt v. 141
Townsend, Garth v. 79
Townshend v. Mostyn, 479, 480
Tracy v. Tracy, 304
Trail v. Baring, 1124
Travis, Waters v. 415
Tribe, Hart v. (No. 4), 233
Wollaston v. 200
Trinder, Mullings v. 424
Trinity College, Cambridge, At-
torney-General v. 277
Trist v. Childs, 142
Trotter, Holland v. 762
Trumbull, Edwards ». 592
Trutch v. Lamprell, 366
Truwhitt, Hance v. 683
Tucker v. Burrow, 313
Curnick v. 233
v. Laing, 164
Tullis, Cook v. 439
Turle, Booth v. 179
Turner v. Collins, 149, 150
v. Letts, 616
Liverpool Borough Bank
v. 609
v. Nye, 228
Porter, et al. ». 79
v. Sargent, 236
Ward v. 219
v. Wright, 319, 767
Turnley v. Hooper, 183
Turquand, Oakes v. 113
Twiss, Pearmain v. 475
Twyford, Seaton v. 571
Twyne’s Case, 183
Tyler, Scott. v. 139
v. Yates, 40, n., 168, 170
Tynte v. Hodge, 169
Tyrrell v. Bank of London, 158,
160
Bank of London ». 155,
160
Tyrrell’s Case, 231
Tyson v. Jackson, 481
TABLE OF CASES.

U.

Udall, Kenny ». 814
Underwood v. Wing, 294
Ungley v. Ungley, 448
Union Bank, Bradford v. 89
Union Bank of Georgetown ».
Geary, 88
United Guarantee
Myers v. 431
United Ins. Co., Lyman v. 89
United States v. Daniel, 82
v. Howell, 164
v. Kirkpatrick,
464
Wanless v. 429
Universal Life Assurance Com-
pany, Ex parte, In re Northern
Assam Tea Company, 439
Upperton v. Nicholson, 424
Usticke v. Peters, 681

Company,

Vv.

Vanderberg v. Palmer, 230
Vanderplank, Shadbolt v. 712
Wright ». 33, 149,
151

Vanderstegen, Vaughan v. 856,
857

Vane (Earl) v. Rigden, 382
Vanhythuysen, Barton v. 183,
193

Vansittart v. Vansittart, 419, 823
Van Vechten, Slade v. 365
Van Vronker v. Eastman, 518°
Varley, Smedley v. 161
Varna Railway Company,
Crampton »v. 405
Vaughan v. Buck, 883
v. Vanderstegen, 856,
857
Veal v. Veal, 220
Verity v. Wylde, 617
Vernon, Tatham »v. 421
Viner v, Francis, 210
Vint v. Padget, 554

xlix

Vivers v. Taite, 424

Vivian, Jegon v. 749

Voorhies v. Presbyterian Church,
160

Vorley v. Cook, 112

Voyle v. Hughes, 421

W.

W— v. B—, 424, 725, 727
B v, 424, 725, 727
Waddingham, Pyrke v. 424
Wadhams ». Gay, 31
Wainford v. Heyl, 856
Wake, Carter v. 605, 612
v. Conyers, 720
Walker v. Armstrong, 89
v. Drury, 882-4
v. Jones, 580
v. Micklethwait, 59
v. Smith, 155
v. Symonds, 372
Wall v. Colshead, 300
Wallace v. Auldjo, 889
Waller v. Barrett, 383
Wallis, Atterbury v. 187, 190
Walrond v. Walrond, 823
Walters, Hunter v. 114, 115, 133
v. Morgan, 118, 424
Wanless v. United States, 429
Ward, Merriman v. 464
Miss. and Mo., R. RB. v.
770
Mosley v. 689
Samuel v. 698
v. Turner, 219
v. Yates, 883
Ware, Dening v. 183, 421
v. Gardner, 183
Warrick v. Queen’s College, Ox-
ford, 749
Warriner v. Rogers, 230, 436
Waters v. Howard, 681
v. Taylor, 637
v. Thorn, 154, 155
v. Travis, 415
Waterworth, Ripley v. 299

 

 

 

E
] TABLE OF CASES.

Watkins, Harris v. 302, 304 +
Watney v. Wells, 640
Watson v. Lyon, 616

v. Marshall, 883, 884

v. Le Roy, 34

Rose v. 408

v. Watson, 708

v. Wellington (Duke of),

435
Watts, Eaton v. 233
Massie v. 54
Weale v. Ollive, 421
Wearing, Haygarth v. 1124
Weatherford, Roberts v. 704
Webb v. England, 405, 819
v. Hewitt, 164, 657

Webster v. Cecil, 424

Thompson v. 183

v. Webster, 436
Wedderburn, Stocker v. 424, 896
Weguelin, Rankin v. 220
Welch, Mandeville v. 435, 592

Wellington (Duke of ), Watson |.

walle as v. 190
v. Maxwell (No. 1), 413
Watney v. 640
‘Wendell v. Rensselear, 177
Wentworth v. Lloyd, 33, 160
Wesley, Rehden ». 355
West, Baxter v. 640
Brashears v. 435
Charlton v. 704
Plenty v. 477
West Mostyn Company, Mostyn
v. 117
Wheatcroft, Allsopp v. 141
Wheaton v. Peters, 774
Sexton v. 183
Wheeler v. Howell, 304
Robinson v. 762
v. Smith et al., 165
v. Smith, 233
Wheelwright, Robinson v. 833
Whelan v. Whelan, 165
en McCarogher 2. 704,
0
Whimper, Daking v. 193

 

Whitaker, Darbey v. 440
Eaton v. 448
Whitbread, Macnab v. 283
v. Smith, 574

White, Alderson v. 506

Ford v. 598

v. Grane, 806

Harcourt v. 33

McDonell v. 33

Pegler v. 424

Rolt v. 112, 439

Smith v. 145
White’s Trusts, Re, 284
Whiting v. Burke, 634
Whitley v. Whitley, 681
Whitmore, Thompson ». 90, 93
Whitney v. Smith, 353
Whyte, Goddard v. 655
Wickens, Aberaman Iron Works

v. 415
Wickham, Graham v. (No. 1),
714

Rawlins v. 112 a, 640
Wicks v. Scrivens, 554, 555
Widmore, Blandy v. 51, 316
Wiginton, Worthington v. 692
Wiggins v. Burkham, 457
Wilbanks +. Wilbanks, 681
Wilcocks v. Wilcocks, 51, 316
Wilcox v. Wilcox, 647
Wilde v. Milne, 644
Wilders, Sutton v. 357
Wilkins, Attorney-General v, 34
v. Sibley, 381
Wilkinson, Castle v. 416
v. Clements, 424
v. Dent, 681
v. Fowkes, 39
v. Lindgren, 275
v. Wilkinson, 140
Willard, Cole v. 712
v. Eastham, 856
Willes v. Greenhill (No. 1, 2),
436
Williams v. Bayley, 131
v. Evans, 447
2, Headland, 383
Nanney ». 155
TABLE OF CASES. li

Williams, Rosher v. 193, 194
Strong v. 712
v. Williams, 125, 313,
754
Williamson, Tate v. 148
Willings, Consequa v. 85
Willis, Cochrane v. 87, 424
Radford v. 424
Willows, Spirett v. 183, 830, 883
Wills v. Bourne, 496
Wilson v. Bell, 808
v. Dunsany (Lady), 504
Gregory v. 676
Liverpool Marine Credit
Company v. 608
v. Lloyd, 164
Newman »v. (No. 2), 883

v. Northampton, ete.,
Railway Company,
405

v. Thornbury, 691
v. Wilson, 89, 101, 535,
894, 896°

Wright v. 123

Winchelsea (Earl of ), Dering »v.
633
Windhan, Bessey v. 183
Windross, Middleton v. 681
Wing, Underwood. v. 294
Winter, Bagshaw v. 883, 884
Wintour »v. Clifton, 681, 682, 690
Withington v. Tate, 572, 578
Witt v. Amis, 220
Amis v. 220

Wolferstan, Jervis v. 392a, 393
Wollaston v. Tribe, 200
Wolterbeek v. Barrow, 89
Wonham, Dally v. 160, 169

 

Wood, Barnes v. 187
v. Ordish, 475

Woodford v. Charnley, 421
Woods, Hilton v. 430
Woolam v. Hearn, 449
Wooldridge v. Norris, 164
Woolley, Blatchford v. 856, 857
Woolridge v. Woolridge, 681
Wormald, Cooper ». 376
Wormsley’s Estate, In re, 483
Worseley v. De Mattos, 247
Worthington v. Wigington, 692
Wright, Dixie v. 409

v. Goff, 89

Lincoln v. 179

v. Maidstone (Lord), 76

Turner v. 319, 767

v. Vanderplank, 33, 149,

161

v. Wilson, 123
Wyatt, Johnson v. 668
Wyke v. Rogers, 164
Wylde, Verity v. 617
Wynch +. Grant, 374
Wyndham, Bennett v. 357
Wynn, Green.v. 164
Wythe v. Henniker, 498

XY

Yale v. Dederer, 856 —.
Yates, Tyler y. 40, 168, 170
Ward v. 883
Yelverton, Bubb v. Ex parte
Hastings, 768
Young, Chaplin v. (No. 2), 365
v. Young, 477, 530
A MANUAL

OF

EQUITY JURISPRUDENCE.

INTRODUCTION.
SECTION I.

OF THE NATURE OF EQUITY JURISPRUDENCE, AND THE
EXTENT OF EQUITY JURISDICTION.

To explain the true nature of Equity Ju- piseutty
risprudence with brevity, perspicuity, and *2¢mpere
accurate precision, is a task of great difficulty: ‘"1"-
on account of the mixed character of the science, and
the immense extent of learning which, for this pur-
pose, it is necessary for the mind to survey at one and
the same time. It is most important, however, that
some attempt be made to accomplish this before the
reader’s attention is directed to the particular doctrines
of the vast system, the principal features of which it is

the design of these pages to delineate. 1.

1 See Story’s Com., Ch. I, passim.
1
2 NATURE AND EXTENT OF EQUITY.

sistelbiow The writer believes it is impossible to give
of Favity a short definition of Equity Jurisprudence
dence. without either failing to convey any accurate
and definite knowledge, or else positively misleading the
student. But Equity Jurisprudence, in the specific and
technical sense of the term, as contradistinguished from .
natural, abstract, and universal Equity, and from Law
and the Statutory Jurisprudence of the Courts, may be
described to be a portion of justice or natural equity,
not embodied in legislative enactments or in the rules
of the Common Law, yet modified by a due regard
thereto, and to the complex relations and convenience
of an artificial state of society, and administered in re-
gard to cases where the particular rights in respect
whereof relief is sought, come within some general
class of rights enforced at Law, or may be enforced
without detriment or inconvenience to the community,
but where, as to such particular rights, the Courts of
Law could not, or originally did not, clearly afford
any relief or adequate relief, at least not without cir-
cuity of action or multiplicity of suits, or did not make
such restrictions, adjustments, compensations, qualifi-
cations, or conditions, as might be necessary in order to
take due care of the rights of all who were interested
in the property in litigation. Although there may
possibly be some peculiar cases which may at first
sight be thought to prove this description to be faulty,
yet it will probably appear, on closer consideration,
that such cases (if any such there are) are not to be re-
garded as illustrative of the general character of Equity
Jurisprudence; and it will probably be found, and the
NATURE AND EXTENT OF EQUITY. 3

following observations may tend to show, that such
description conveys a just notion of the true nature of
that science. 2.

I. In the most general sense, Equity is sequtey cite
synonymous with natural justice.’ But jisppdence
‘Equity, as contradistinguished from Law, Ponymens
and as administered in our Courts of Equity, ™ Juste
has a much narrower and an otherwise different signi-
fication. Many matters of natural justice, by the
Equity Jurisprudence of this and every other civilized
nation, are left to be disposed of in foro conscientic,
from the difficulty of framing any general rules to

1 See St. 2.1, 2.*

 

* Equity, as applied to Jurisprudence, does not comprehend the
broader principles of universal law, which are properly embraced
in the more extended import of the term Natural Equity, or what
is sometimes called Moral Equity. Story’s Eq. Jur. @ 1-24.

Equity Jurisprudence, as a distinct branch of the law, is the
complement of legal administration, whereby through defect of
evidence, or from imperfect procedure, it is unable to afford that
ample and specific redress for all injuries, which Courts of Equity
may do, by requiring the defendant to answer upon his conscience,
by reforming mistakes in written contracts, and by injunctions,
both restrictive and mandatory, and in many other ‘ways. It is
that portion of remedial justice which is administered exclusively
by Courts of Equity. Equity will not relieve against any defect,
imperfection, or abuse of the law itself, but only against the un-
conscionable claims and abuses of the parties. Courts of Equity
can give no different construction to the law, whether written or
customary, from that which must govern Courts of Law. They
are equally bound by precedents with Courts of Law. Courts of
Equity afford relief in regard to those rights recognized by the
Jurisprudence of the State, where the remedy of law is doubtful,
inadequate, or incomplete. Story’s Eq. Jur. 2 25-34.
4 NATURE AND EXTENT OF EQUITY.

meet them, and from the mischief and inconvenience
which would arise from attempting judicially to en-
force such duties as charity, gratitude, and kindness,
or even positive engagements, where they are not
founded on a valuable consideration, or at least on
what is deemed a good consideration.’ 3.

And, on the other hand, setting aside that body of
natural justice which is comprised in statutory provi-
sions, a vast proportion of what is specifically de-
nominated Law (as contradistinguished from what is
technically designated Equity), has been reared up in-

dependently of legislative enactments or arbitrary or
conventional rules, and consists, in the main, of a sys-
tem of natural equity or justice, modified so as to be
adapted to the manifold and complicated relations and
exigencies of a highly artificial state of society? And
as to the construction of statutes, a Court of Law is
bound to interpret them according to the intention of
the legislature, as much as a Court of Equity ; indeed,
both adopt the same principles of interpretation. 4.

So that, on the one hand, natural justice or equity
was not excluded from the system of Law; nor, on
the other hand, is it carried out to an unlimited extent
even in a Court of Equity. And in the cases to which
it is applied in a Court of Equity, it is not always ap-
plied in an unmodified form, but is qualified (as we
shall see in the third section and in subsequent pages)
by a due regard to legislative enactments and the rules

1 See St. 2 2, 8, note, and 3 14; 1 Sp. 447, n (d).

® See St. 2 7, 8, notes, and @ 20, 34.
3 See St. 3 15.
NATURE AND EXTENT OF EQUITY. 5)

of the Common Law, and to the varied and compli-
cated relations and the general convenience of the sub-
sisting order of things. 5.

The truth, then, appears to be this: first,
that a large portion of natural equity is left tion St bat.
to be administered in foro conscientic ; be- hates

cause in addition to the difficulty of pro- °°"
pounding precise rules, applicable to all cases, a greater
detriment and inconvenience to the community would
probably ensue from attempting to enforce it in the
public courts, than from leaving it to the decision and
the power of conscience, and to the various motives by
which mankind are ordinarily influenced. rar ee

Secondly, that another large portion of nat- “large por-
ural equity was always administered by the always ad-
Courts of Law, and is denominated Law in Gr cours of

contradistinction to what is technically ai
termed Equity. And thirdly, only a portion, there-
fore, of natural equity, and that in a modified form, is
administered in a Court of Equity; and ;
that portion is specifically and technically arumines

. S ‘oe . tered in

called Equity, in contradistinction as well to courts of

. . eqfiity is

the two other portions of equity, or to natural, therefore
fs . ‘* ? only a por-
abstract, and universal equity or justice tion a
ral justice,

i i 1 ni: andina

in general, as to legislative enactments, and in a

and arbitrary, feudal, or simply conven- form.
tional rules. 6.
TI. 1. There were particular rights which =

came within some general class of rights en- there is no
‘ aes, @ remedy at
forced at Law, or capable of being judicially taw, ana
a se p 1 A a equity had
exclusive
enforced, not only in particular instances, pee

and to the benefit of particular individuals,
6 NATURE AND EXTENT OF EQUITY.

but in all cases, and to the advantage of the commu-
nity at large; and yet there were no forms of action by
which relief could be obtained in respect of such par-
ticular rights, and they were consequently left to con-
science by the Courts of Law; but being capable of
being enforced by proceedings in Equity, and being of
a character demanding judicial sanction and interposi-
tion, Courts of Equity readily interfered and afforded
relief. In these cases, therefore, Courts of Equity had
exclusive jurisdiction. This, for example, was the case
with trusts, for the most part; with the right to relief
in many instances of accident, mistake, fraud, penalties,
and forfeitures; and, in most cases, with the right to
protection against anticipated loss or injury.’ 7.

Wher 2. There were many other cases, in which
equity as". the kind of relief which was afforded by

sumed juris-

diction on. Courts of Law was inadequate, but in which

tnaevarine Courts of Equity could give the precisely
een appropriate relief. For example, Equity
would often enforce the specific performance of a con-
tract ; whereas Courts of Law could only give dam-
ages for the breach thereof.? 8.
srtocae There were also cases in which adequate
cireuity of and complete relief could be had at Law,
multiplicity but in order to obtain it, circuity of action

’ or multiplicity of suits was necessary ;
whereas complete justice could be done by a single
suit in Equity? 9.

1 See St. 2 29, 962. ? See St. 2 30, 33.*

5 See St. 2 64 k, 496, 621, 853, 854.

 

* See Adams’s Equity, Intr. xxxv.
NATURE AND EXTENT OF EQUITY. 7

Again: Courts of Law could not do more 6, 4 taxe
than pronounce a positive judgment in a fhe iante
settled form, either for the plaintiff or the "5
defendant, irrespective of the peculiar circumstances of
the case; whereas Courts of Equity could adapt their
decrees to all the various circumstances which might
arise, and could take due care of the rights of all who
were in any way interested in the property in litiga-
tion.” 10.

In these three classes of cases, Equity had a concur-
rent, and practically an exclusive jurisdiction. Indeed,
in some, if not in all of the last class of these cases,
Equity used to assert an exclusive jurisdiction by
granting an injunction against proceedings in other
courts.” 11.

The necessity for a discovery in a Court of 6, on ac-
Equity furnished a ground of jurisdiction for foon.in he
relief in a great variety of cases. For the *ve7y-
court, having acquired cognizance of the suit for the
purpose of discovery, would frequently entertain it for
the purpose of relief.2 12.

1 See St. 2 26-28, 437. 2 See Title II, Chap. I, infra.
9 St. 2 691, 692.*

 

* There is a difference between the English and American
Courts as to the extent of the jurisdiction for relief, as consequent
upon discovery. In the United States the more convenient doc-
trine obtains, and where the discovery is effectual, the court will
go on and give adequate relief, if in its power, to prevent multi-
plicity of suits, unless where there is an action pending. St. Eq.
Jur. 371, 456; Adams’s Eq. 20, note 1; Russell v. Clark’s Ex’s,
7 Cranch, 69. See also Oelrichs v. Spain, 15 Wall. 211.
8 NATURE AND EXTENT OF EQUITY.

omeaeore i rts of Law
CAE OnTHS And in cases where the Cou

original 4e- originally did not afford adequate relief,
reliefoflaw. Qourts of Equity exercised a concurrent ju-
risdiction, unless prevented by a legislative enactment,
even though the Courts of Law subsequently gave such
relief. For they could have no power to circumscribe
the jurisdiction of Courts of Equity.’ 13.

orthedount. And so if it was doubtful whether the
fuinies Courts of Law could give such relief, the
such relief. Courts of Equity had jurisdiction. 14.

3. In some cases a matter was most properly cog-
‘SHhuene nizable at Law, and Courts of Law could
equity bad always have afforded due relief, had they
jurisdiction. possessed that evidence which a Court of
Equity could obtain, but which a Court of Law for-
merly could not obtain. In these cases Courts of
Equity used to have an auxiliary jurisdiction to pro-
vide the Courts of Law with that evidence.’ 15.
Where it 4. Where it was'clear that the Courts of
risdiction. Law could always afford adequate relief,
without the aid of Courts of Equity, and without cir-
cuity of action or multiplicity of suits, and could take
due care of the rights of all who were interested in the
property in controversy, Equity had no jurisdiction.’
16.

And Courts of Law and Equity are in general alike

ousted in the case of internal disputes between the

1 See St. @ 641, 81; 2 Sp. 16. 2 See St. 3 64k, 673.*
® See St. ¢ 33, 684 a and c, 686; 1 Sp. 408, 420; 2 Sp. 16.

 

* Adams’s Eq. 1-22.
NATURE AND EXTENT OF EQUITY. 9

members of a building or other friendly society and
the society itself, or any of the officials of the society
and the society itself, where the Act of Parliament
under which it is constituted, or the Friendly Societies
Act, provides that such disputes shall be settled by
arbitration.* 17.

Nor, as already observed, have Courts of Equity
any jurisdiction as to those classes of rights which
could not be judicially enforced without occasioning a
greater general mischief or inconvenience than that
which results from leaving them to be disposed of in
foro conscientie.t 18.

It will be seen from the next section that both the
Equity and Common Law Jurisdiction have been the
subject of very great alteration by the Judicature
Acts. 19.

 

* Thompson v. Planet Benefit Building Society, L.R., 15 Eq. 333.

+ In America, Equity Jurisprudence had its origin at a far
later period than the Jurisdiction properly appertaining to the
Common Law, and has grown up chiefly since the formation of
the National government ; as at present exercised in this country, it
is founded upon, coextensive with, and in most respects conforma-
ble to, that of England. The Constitution of the United States
has, in one clause, conferred on the Federal judiciary cognizance of
cases in Equity as well as in Law, and the uniform interpretation
of that clause has been, that, by cases in Equity, are meant cases
which, in the Jurisprudence of England, are so called, as contra-
distinguished from cases of the Common Law. In nearly all the
States in which Equity Jurisdiction is recognized, it is now ad-
ministered in the modes and according to the forms which apper-
tained to it in England. St. Eq. Jur. 3 56-58. And, as a general
tule, in America, State courts have that jurisdiction which is con-
ferred upon them by statute, and the statutes which derogate from
or add to the Common Law powers of courts are generally strictly
construed. St. Eq. Jur. ¢ 33, note.
10 GENERAL EFFECT OF EQUITY.

SECTION II.

OF THE GENERAL EFFECT OF THE JUDICATURE ACTS,
AS REGARDS EQUITY JURISDICTION AND JURISPRU-
DENCE. Se

THE Judicature Acts, 1873 and 1875, almost en-
tirely relate to Pleading and Practice, and not to Juris-
prudence, which is the exclusive subject of this Manual
and the author’s Manual of Common Law. They
do not make any general fusion of Law and Equity.
But the first Act (see Appendix) consolidates the dif-
ferent Superior Courts by which Law and Equity are
administered into one Court, which is divided into
several “ Divisions.” And section 24 (Appendix)
enables every Judge of the Court to deal concurrently
with matters of Law and Equity arising between the
same parties, except so far as by section 34 certain
business is assigned to particular Divisions of the Court.
Subsection (7) of section 24 enables the High Court
of Justice and the Court of Appeal to “grant, either
absolutely or on such reasonable terms and conditions
as to them shall seem just, all such remedies whatso-
ever as any of the parties thereto may appear to be
entitled to in respect of any and every legal or equi-
table claim properly brought forward by them respec-
tively in such cause or matter; so that, as far as
possible, all matters so in controversy between the said
GENERAL EFFECT OF EQUITY. 11

parties respectively may be completely and finally de-
termined, and all multiplicity of legal proceedings con-
cerning any of such matters avoided.” And section
89 gives similar powers to the Judges of Inferior
Courts, to the extent of their jurisdiction. Section
25 (Appendix) makes a few changes in certain specific
points of Jurisprudence, which are noticed in the
proper places in this Manual. And section 25 also
comprises the important enactment (clause 11, Appen-
dix), “that generally in all matters, not hereinbefore
particularly mentioned, in which there is any conflict
or variance between the rules of Equity and the rules
of Common Law with reference to the same matter,
the rules of Equity shall prevail.” 20.
12 GENERAL MAXIMS.

SECTION ITI.

OF THE GENERAL MAXIMS OF EQUITY JURISPRUDENCE.

Iw addition to those maxims which are acted upon
as well in Courts of Law as in Courts of Equity, and
besides various other maxims which in terms apply to
particular parts of the Equity system, there are certain
general maxims peculiar to Equity, which it is of the
greatest use rightly to understand and to bear in mind
whether in reading or in practice. 21.

; I. Itis a maxim, that Equity will not suf-
vithouta’ fer a right to be without a remedy.’ It will
mne’y ‘be evident from the first section that this
lies at the very foundation of a large proportion of
Equity Jurisprudence, as a suppletory system. But
it will also appear from the observations made in that
section, that this maxim must be regarded as referring
exclusively to rights which come within a class of
rights enforced at Law, or capable of being judicially
enforced without occasioning a greater detriment or
inconvenience to the public than would result from
leaving them to be disposed of in foro conscientic.
And it must also be understood to refer to cases where
the party who is remediless at Law has not sacrificed
or lost his remedy by his own act or laches,? and where
there was no equal or superior adverse right. And
there are some exceptive cases of claims of natural jus-

' 1 Cru. Dig. X. 1, 50. 2 See St. 2 684 a and c.
GENERAL MAXIMS. 13

tice capable in themselves of being enforced with pro-
priety, but to which neither the Common Law nor
Equity give any remedy : as in the case of the exemp-
tion at Common Law of the lands of deceased debtors
from the payment of debts—an exemption which has
been removed by certain statutes, particularly by 3 and
4 Will. 4, ¢. 104.1 22.

II. But not only will Equity often ad-
minister a remedy where the Law would not will ddmin-
give any relief, but it will also afford relief, femedy,"”
as we have already seen, where the Courts of sowie notte
Law originally did not clearly give adequate Sie oti
and complete relief, at least without circuity of action
or multiplicity of suits, or could not take due care of
the rights of all who were interested in the property in
litigation. 23.

IIT. But, as we have also seen, where it
is clear that the Courts of Law did always ¢y minwoe

afford adequate and complete relief without where fe
the aid of a Court of Equity, and without hee oul
circuity of action and multiplicity of suits, a
and could take due care of the rights of all “"*”
persons interested in the property in litigation, there
Equity has no jurisdiction. 24.

Thus, where there was always an adequate syustration
and complete remedy at Law for the recov- ee ae
ery of rent, either by an action or distress, ""*
no suit will be entertained in Equity, although the

remedy in Equity may be more beneficial. The cases

1 See 1 Sp. 174, 417; and Smith’s Compendium of the Law of
Property, 5th ed., par. 1366.
14 GENERAL MAXIMS.

in which a suit is commonly entertained in Equity for
this purpose are such as stand upon some peculiar
equity ; as where the premises out of which the rent
is payable are uncertain; or where the time or amount
of the payment is uncertain; or where a discovery or
an apportionment was wanted ; or where the remedy at
Law is obstructed or evaded by fraud, or is gone with-
out laches; or where none ever existed; or where it
was inadequate, incomplete, or doubtful." 25.
IV. Although Equity would go beyond
followsine the Law in supplying a remedy i in the cases
sai above mentioned, yet it is a well-known
maxim that Equity follows “the Law.’ The reason is,
that there may be uniformity of decision.® 26.

The true meaning of this maxim would seem to be,
that Equity is governed by legislative enactments and
the rules of Law, in regard to legal estates, rights, and
interests; and that it is regulated by the analogy of
such legal estates, rights, and interests, and the legis-
lative enactments and rules of Law affecting the same,
in regard to equitable estates, rights, and interests,
where any such analogy plainly subsists; if, in each
case, there are no peculiar circumstances rendering it
absolutely necessary to deviate from this rule, or crea-
ting an equitable obligation in one of the litigant
parties, and an equitable correlative right in favor of
another litigant party, and requiring a different course
to be taken in the particular case, without overturning
or destroying the general application of any legislative

1 See St. 4 684-687. ® See St. 2 64 a, b; 1 Sp. 419, 420.
3 2Sp. 359, n. (a).
GENERAL MAXIMS. 15

enactments or rules of Law that may, in terms or by
analogy, apply to the case. 27.

There may indeed be cases in which Equity has fol-
lowed the Law, even where there have been such pe-
culiar equitable circumstances. But it is conceived
that these must be cases in which the Court has (per-
haps improperly) declined to exercise the authority
which it really possessed and has ordinarily exerted.
28.

To affirm that Equity follows the Law in any less
limited sense than that above pointed out, would be to
negative the existence of a large portion of Equity
Jurisprudence, if not to assert that there is no such
thing as Equity as distinct from Law. But to affirm
that Equity follows the Law, in the restricted sense
above’ pointed out, is merely to assert what is un-
questionably true and most important to be remem-
bered, namely, that Equity will suffer legislative
enactments and the rules of Law to govern, and the
course of Law to proceed, as far as it can without
sacrificing claims grounded on peculiar circumstances
which render it incumbent upon a Court of Equity
to interpose, in accordance with the maxim previously
mentioned, that Equity will not suffer a right to be
without a remedy. 29.

In illustration of the maxim, as it applies jyuctra-
to equitable estates, rights, and interests, it tion ofthe
may be observed that the limitations by [2837.0
which equitable estates and interests are ““*
created by way of trust executed, that is, a trust
formally and finally declared by the instrument crea-
16 GENERAL MAXIMS.

ting it, are construed in the same manner as similar
limitations of legal estates and interests would be con-
strued in a Court of Law; so that, for example, what
would create an estate tail in the one case, will create
Maximdocs 22 @state of the same kind in the other case.
not apply to But such a constructive assimilation does not
upeoe always take place in regard to equitable
estates and interests created by way of trust
executory, which, as opposed to a trust executed, is a
trust not formally and finally declared by the instru-
ment creating it, but intended to be so declared by
some future instrument. For, in the case of trusts
executory, there is often no substantial analogy, form-
ing a ground for such assimilation; because in many
‘cases, the words are not so much actual limitations,
such as those by which legal estates and interests are
created, as instructions or intimations as to the mode
in which the author of the trust wishes the property
to be settled by some future conveyance, settlement,
or assurance, referred to in the instrument creating the
trust ; and therefore the words are to be construed ac-
cording to the intent of the party, as presumable from
the nature of the case, or from the other parts of the
instrument, rather than according to what would be
the strict operation of the words, supposing them to
be actual limitations contained in a formal and final
instrument.’ 30.

1 As to these trusts, see Smith’s Executory Interests, annexed
to Fearne’s Treatise, ¢ 489-502, and % 601-637 ; Lord Glenorchy
v. Bosville, 1 White and Tudor’s Lead. Cas. Eq., 4th Am. ed. 1,
et seq. Saunders v. Edwards, 2 Jones’s Eq. 134.
GENERAL MAXIMS. 17

In illustration of the qualification that mastra-
: tions of th
Equity follows the Law only where there gualifica-
: . tion added.
are no such peculiar circumstances as above in the

mentioned, it may be observed that Equity statement
follows the Law in regard to the rule of meaning. of
: : . the maxim.
primogeniture, although that rule in any 1, oF pri-
particular instance in which it is so followed, ™oseniture.
may be productive of the greatest hardship towards
all the younger members of a large family who, in one
sense, by the operation of the. rule, may be left with-
out any sort of provision, whilst the eldest son may be
placed in a state of the greatest affluence. But these
are not peculiar circumstances creating an equitable
right to relief in favor of the youngest children against
the eldest son, and demanding the interposition of a
Court of Equity. The mere absence or want of a pro-
vision, which may have arisen from the culpable neg-
lect of the parent, can create no equity against the
eldest son. He has a right to the descended or en-
tailed estate, without any reference to the circumstances
of the other members of the family; and the mere
fact that they have not been provided for by their
parent, can impose on the eldest son no obligation in
a Court of Equity to divest himself, and can give the
younger children no equitable right to strip him of
that provision which the Law has appointed him. No
relief could be given in such a case as this without di-
rectly derogating from a rule of Law, which a Court
of Equity has no power todo. But if an eldest son
should prevent his father from executing a will devis-

ing one of his estates to a younger brother, by promis-
2
18 GENERAL ‘MAXIMS.

ing to convey the estate to such younger brother,
although that estate would at Law descend to the
eldest son, a Court of Equity would doubtless inter-
pose, and prevent the eldest son from asserting any
claim to it.| So Equity will often support
the defective execution of powers, where at
Law the act would be wholly nugatory.?_ And in cases
Statute or Under the old Statute of Limitations,’ Equity
limitations. Often interfered, notwithstanding the time
fixed by the statute had expired, where it would have
been inequitable to have allowed the statute to be a
bar; as when a person perpetrated a fraud, which was
not discovered till the statutory bar applied at Law;
or where a person carried on an unfounded litigation,
protracted so as to subject his adversary to the statu-
tory bar at Law.‘ But although in these cases Equity
did not follow the Law, yet it did not overturn or

1 St. 2 64,

® St. @ 64a; Tollet v. Tollet, 1 White & Tudor’s Lead. Cas. Eq..

4th Am. ed. 227, et seg.*- : .
3 21 Jac. 1, c. 16. ‘ St. 31521; 2 Sp. 62.

Powers,

 

* Where forms are imposed on the execution of a power, the
circumstances must be strictly adhered to, to constitute a good exe-
cution in Law (Pepper’s Will, 1 Pars. Eq. 436), and the remedy
to aid an imperfect execution is, in Chancery, only where it pro-
ceeds upon the ground of compelling parties, in respect of the con.
sideration, to supply a defect in their acts. Sinclair v. J ackson, §
Cowen, 544, 588.

And a Court of Equity will not enforce a voluntary contract 0
unexecuted gift. Where the transaction is incomplete, and ther
is no consideration, the Court will not complete what it finds im-
perfect. Wadhams »v. Gay, 73. Ill. 415.
GENERAL MAXIMS. 19

destroy the general application of the enactment. It
only refused to apply it in particular instances where
there were peculiar circumstances creating an equitable
right to relief, demanding the interposition of the
Court in its support, and capable of being enforced
without at all derogating from the general application
of the enactment in question. So far from derogating
from the Statute, Equity was regulated by analogy to
the Statute as to the precise time fixed for asserting
equitable titles and claims to which the Statute did
not apply. 31.

Where an Act of Parliament has created ,stachment
a particular remedy at Law, the Court is not °f debts.
bound to create an analogous remedy in Equity, even
where the remedy at Law is unavailable. And hence
a judgment creditor: cannot obtain a charge in Equity
on an equitable debt, by analogy to an attachment of
a legal debt under the Garnishee clauses of the Com-
mon Law Procedure Act, 1854.2 32.

V. It is a maxim that, vigilantibus non “
. ° ei . . 5. Vigilan-
dormientibus cequitas subvenit: the meaning tious non
dormientibus

of which is, that Equity discountenances cquites sub-
laches, and, independently of any Statutes al

of Limitation, has always refused to interfere where
there has been gross laches in prosecuting rights, or
long and unreasonable acquiescence in the assertion of

1 See St. @ 64 a, 1520; 2 Sp. 60,61. And for other illustra-
tions of the qualifications of the rule above stated, see St. 2 476,
480, and Title II, Chap. III, on Express Trusts, infra.

? Horsley v. Cox, L. R., 4 Ch. Ap. 92.
,

20 GENERAL MAXIMS.

adverse rights... And the mere assertion of a claim,
unaccompanied by any act to give effect to it (as by
taking legal proceedings to enforce it) will not avail
to keep it alive.2 In the case of laches, it would in
many cases be impossible to interfere, without doing
injustice to third persons who had acquired interests
in the property during the intervening period. Thus,
the right of a creditor to make legatees refund may be
lost by laches.? In general nothing can call forth a
Court of Equity into activity but conscience, good
faith, and reasonable diligence.* “ It has been beauti-
fully remarked, with respect to the emblem of Time,
who is depicted as carrying a scythe and an hour-
glass, that while with the one he cuts down the evi-

1 St. 2 959 a, 1284 a, 1520; Baker ». Read, 18 Beav. 368;
Wright v. Vanderplank, 2 K. & J. 1; Alloway v. Braine, 26

_Beay. 575; Robertson v. Norris, 1 Gif. 421; Gresley v. Mousley,

1 Gif. 450; 4 D. & J. 78; Bright v. Larcher (No. 2),4D. & J.
608; Harcourt v. White, 28 Beav. 303; Bright v. Legerton, 2 D.
F, & J. 606; Blagrave v. Routh, 8 D. M. & G. 620; Laver ».
Fielder, 32 Beav. 1; Hodgson v. Bibby, 32 Beav. 221; Downes
v. Jennings, 32 Beav. 290; Wentworth v. Lloyd, 32 Beav. 467;
Strange v. Fooks, 4 Gif. 408; McDonnel v. White, 11 H. L. Cas.
570; Barwell v. Barwell, 34 Beay. 371; Seagram v. Knight, L.
R., 3 Eq. 398.*

? Clegg v. Edmonson, 8 D. M. & G. 787.

3 Ridgway v. Newstead, 2 Gif. 492; Lehman +. McArthur, L.
R., 3 Ch. Ap. 496.

4 2 Sp. 60, 61.

 

* Kane v. Bloodgood, 7 Johns. Ch. 93; Prevost v. Gratz, 6
Wheat. 481; Hughes v. Edwards, 9 Wheat. 489; McKnight v.
Taylor, 17 Peters, 197; s.c., 1 Howard Sup. Ct. 151; Story Eq.
Pleading, 4 818, 814; Boone v. Chiles, 10 Peters, 177; Harrison
»v. Gibson, 23 Grat. (Wa.), 212.
GENERAL MAXIMS. 21

dence which might protect innocence, with the other
he metes out the period when innocence can no longer
be assailed.’”" 33.

VI. Where there is equal Equity, the law 4 where

must prevail; in other words, if the defend- (here's

ant has a claim to the protection of a Court 3.06.0"

of Equity, equal to the claim which the ‘“”
plaintiff has to the assistance of the Court, there the
Court will not interpose, but will leave the matter as
it stands. It is upon this account that a Court of
Equity refuses to interfere against a bond fide pur-
chaser for a valuable consideration without notice of
the adverse title, if he is in possession, or has purchased
from an apparent owner in possession, and if he
chooses to avail himself of the defence at the proper
time and in the proper mode? 34.

VII. Another maxim is, that Equality is 7 pouarity
Equity, or, that Equity delighteth in Equal- + ¥vity.

1 Bright v. Legerton, 2 D. F. & J. 617.

2 St. ¢ 64.c, 436; 2 Sp. 733; Basset ». Nosworthy, 2 Lead. Cas.
Eq., 2d ed. 1, et seg.; Attorney-General v. Wilkins, 17 Beav. 285;
Greenslade v. Dare, 20 Beav. 284; Lane v. Jackson, 20 Beav.
535; Colyer v. Finch, 5 H. L. Cas. 905, 920; Ogilvie v. Jeaffre-
son, 2 Gif. 353, 379; Clemow v. Geach, L. R., 6 Ch. Ap. 147;
Pilcher v. Rawlins, L. R., 11 Eq. 53; reversed, L. R., 7 Ch. Ap.

259. See also Carter v. Carter, 3 K. & J. 617 ; Heath v. Crealock,
L. R., 10 Ch. Ap. 33.*

 

* Newton v. McLean, 41 Barb. 285; Sugden on Vendors (7th
edit.), Ch. 16, pp. 718, 757, 762, 763; Story Eq. Pl. 2 603, 604,
805, 806. The general rule, that priority in point of time gives
priority in point of right, is recognized by Courts of Equity, as well
as by those of Common Law. Watson v. LeRoy, 6 Barb. So. C.
485; Boone v. Chiles;-10 Peters, 177. “In order, however, that
22 GENERAL MAXIMS.

ity! Acting on this principle, Equity leans strongly

against joint-tenancy, as it is attended with
tondrawn the inseparable incident of the right of sur-
ease of'a vivorship. or, although it is true that
chee ae each joint tenant may have an equal chance
weer GE being the survivor, yet this is but an
equality in point of chance ; as soon as one dies, there
is an end to the equality between them ; on that event
the whole accrues to the survivor. And the equal
certainty of having an absolute equal share, or a share
proportionate to the amount of the purchase-money
advanced, which is an equal share so far as the justice
of the case will permit, is considered in Equity far
better than an equal chance of having the whole or
none of the property purchased. ‘The former is con-
sidered to be the true and just equality. And there-
fore, if two persons jointly purchase, or take a mort-
gage of an estate, and advance the purchase or mort-
gage money in unequal proportions, Equity, on the
death of either of them, acting on the maxim that
Equality is Equity, will hold the survivor a trustee
for the representatives of the deceased, as to a share

1 St. 2 64 f.

 

this maxim may operate, it is essential that the equities be equal.
If they are unequal the superior equity will prevail; and such
superiority may be acquired under any of the three following
rules: (1.) The equity under a trust, or contract in rem., is supe-
rior to that under a voluntary gift, or under a lien by judgment.
_(2.) The equity of a party who has been misled, is superior to his
who has wilfully misled him. (3.) A party taking with notice of
an equity, takes subject to that equity.” Adams’s Eq. 148.
GENERAL MAXIMS: Ww

proportionate to the amount of the money so advanced

by him.’ And this furnishes another illustration of

the violation of the terms of the maxim, that Equity

follows the Law, though not of the qualified and trué

sense of that maxim as above explained. 35. ,
VIII. Another maxim is, that he who

. . . 8. He who
comes into a Court of Equity must come comes into

with clean hands. So that if a person seeks come with
to cancel, set aside, or obtain the delivery aes
up of an instrument on account of fraud, jnustration
and he himself has been guilty of wilful a feaualtent
participation in the fraud, Equity will not ‘*°s*U°*
interpose in his behalf, unless the fraud is against
public policy, and public policy would be defeated by
allowing it to stand? 36.
The rule must be understood to refer to

. : : Qualifica-
wilful misconduct in regard to the matter tiou of the.

in litigation, as in the foregoing example, ”
and not to any misconduct, however gross, which is
‘unconnected with the matter in litigation, and with
which the opposite party in the cause has no con-
cern. 37.

IX. It is also a maxim, that he who 9 tewno
seeks equity, must do equity? 38. ae
The meaning of this is, that he who seeks °*"""”
equity, must do equity in the-transaction in respect
‘of which relief is sought ; for the rule does not reach

1 See St. 2 1206; Lake v. Gibson, 1 White & Tudor’s Lead.
Cas. Eq., 4th Am. ed. 264, et seg. :

® See St. 4 695.

-* Bt. @ 64 0,707 51 Sp. 422.
24 GENERAL MAXIMS.

so far as to affect any other transaction than that in
respect of which the relief is sought.’ 39.

Iustration LO give an illustration of this maxim, a
gusurious, Court of Equity will not set aside a usurious
transaction. transaction on a bill filed by the borrower,
unless upon the terms that he will pay the lender
what is bond fide due to him.(a) It must not be in-
ferred from this, however, that the Court will oblige
the borrower to pay what is so due, on a bill filed by
the lender to enforce his claim ;? for that would be
contrary to the maxim, that he who comes into Equity
must come with clean hands. 40.

10. Equity It isa maxim, that Equity looks upon
looks on that.as done which ought to be done.? This
Gone ots maxim is acted on in some cases (as in the
ve case of agreements) in favor of persons who
have a right to ask that acts might be done, so as
virtually to place them, as near as may be, in the
same advantageous position as if those acts had been
done in the way in which, and at the time when, they
ought to have been performed.‘ 41.

1 Wilkinson v. Fowkes, 9 Hare, 592; Gibson v. Goldsmid, 5
D.M. & G. 757.*

2 See St. 2 64. €. 3 2 Sp. 253, et seq.

4 See St. 2 64 g; 2 Sp. 264; and see Title I], Chap. VIII,
infra,

* Perry on Trusts, 2 626 et seg. ; Adams's Eq., note [191]; Com-
stock v. Johnson, 46 N.Y. 615.

(a) The usury laws are abolished by the stat. 17 & 18 Vict. c. .
90, except those relating to pawnbrokers, and except as regards
transactions prior to the 10th of August, 1854. But the repeal of
the usury laws has not affected the right of the Court to give re-

lief against unconscionable bargains. Miller ». Cook, L. B.10 Eq.
641, 646; Tyler v. Yates, L. R. 11 Eq. 265.

 
GENERAL MAXIMS. 25

As a consequence of this maxim, money
directed to be employed in the purchase of
land, and land directed to be turned into money, are
in general regarded as that species of property into
which they are directed to be converted,! that is,
either immediately, or at some future time, according
to circumstances.” And where the intention in mar-
riage articles is plain, that a conversion should be
made, but consents of the parties interested to the
actual purchase cannot be obtained as required by the
instrument, by reason of their deaths or for some
other cause, if any convenient purchase could have
been obtained, the Court will take upon itself to judge
whether such consents ought to have been given, and
the conversion being the paramount object, it will be
considered as made. If this were otherwise, the parties
to consent would have the option of determining
whether the property should be real or personal,
which, unless it be clearly given to them, will not be
permitted. An equitable conversion of land into
money, or of money into land, takes place by force of
the direction, notwithstanding the conversion or in-
vestment is directed to be made with the approbation
of certain parties; and legatees of legacies out of a
property directed to be converted with the consent of
the tenant for life in writing are entitled to their
legacies, whether the property be converted or not;
and the residuary legatees of the proceeds are entitled,

Conversion.

1 2 Sp. 256-8; and infra, Title II, Chap. VIII, 2 4.
2 2 Sp, 258,
3
26 GENERAL MAXIMS.

subject to the legacies, to the estate itself, if not con-
verted.” 42.

Money devised or contracted to be laid out in land
will pass under a devise of all the testator’s messuages,
lands, tenements, and hereditaments.’ 48.

Real estate may be so constructively converted as
to be liable to legacy duty.? 44.

The persons to whom property directed to be con-
verted is limited, and those who stand in their place,
are entitled to enforce the conversion, either actually
or virtually. But a stranger (such as the Crown or
the lord claiming in default of heirs) is not entitled
to call for a conversion.> 45.

Where money to be converted gets into the hands
of the person who is absolutely entitled to it either
way, the operation of the rule of conversion will cease.®
46. ‘

Where the property is outstanding in a trustee, but
there is some person who is absolutely entitled to the
property, whether taken as realty or personalty, such
person, by any act from which his intention may be
collected, may declare his election in what quality it
shall be taken.’ Until an election is made, the prop-
erty passes as if actually converted, and the onus lies
on those who would show an election to take it in

1 2 Sp. 260, 261. 2 2 Sp. 264. 3 2 Sp. 267.

4 See 2 Sp. 268, 269. 5 2 Sp. 266. § 2 Sp. 270.

” 2 Sp. 271; Fletcher v. Ashburner, 1 White and Tudor’s Lead.
Cas. Eq., 4th Am. ed. 1118, et seq.*

 

* Craig v. Leslie, 3 Wheaton, 564; Peter v. Beverly, 10 Peters,
534, 563.
GENERAL MAXIMS. 27

another character than that it would have if converted.
47, .
Where one person has a better equity

than another person in respect of the same fnravight
: . . to call f
property, in which each has an interest, the an assign-
. . ment or
former has a right to call for an assignment conveyance

or conveyance of the legal estate, and in he ie
. . . f tained it.

Equity he will be placed in the same situa-

tion as if he had actually obtained a conveyance or

assignment.? 48.

‘Volunteers have equal equities among g,,
themselves; but a volunteer, though a wife °
or child, has not equal equity with a bond fide pur-
chaser for a valuable consideration, even with notice
of the claim of the volunteer.’ 49.

XI. As between persons having only equi- 44. gyi prior
table interests, if their equities are in all pice ty”
other respects equal, priority of time gives ’“”*
the better equity: qui prior est tempore, potior est jure.
But in a contest between- persons having only equita-
ble interests, priority of time is the last preference re-
sorted to; i.¢., a Court of Equity will not prefer the
one to the other on the mere ground of priority of
time, until it finds, upon an examination of their rela-
tive merits, that there is no other sufficient ground of
preference between them, or, in other words, that their
equities are in all other respects equal ; and if the one
has, on other grounds, a better equity than the other,
priority of time is immaterial.* 50.

1 2 Sp. 272. 2 2 Sp. 728. 9 2 Sp. 728.
4 Kindersley, V. C, in Rice v. Rice, 2 Drew, 78; Stackhouse v.

Eu ity of
unteers.
28 GENERAL MAXIMS.

XII. Where aman is bound to do an act,
imputesta- and he does one which is capable of being
falalran ob- considered to have been done in fulfilment
ES Sak Hie obligation, it shall be so construed ;
because it is right to put the most favorable construc-
tion on the acts of others.’ 61.

: In the case of a covenant, that, on the
distributive death of the covenantor, a wife or relative
salisfacion Shall receive a gross sum, his or her distribu-
gation by tive share, in the case of an intestacy, if equal
covenant, :

to or greater than the sum covenanted to be
paid, is to be considered as a performance; if less, as
a part performance. But where the covenant is that
an annuity shall be paid or secured on the death of the:
covenantor, the distributive share is not a performance
or part performance.’ And where the covenant debt
arises in the lifetime of the covenantor (as where he
covenants within two years after marriage to pay a cer-

tain sum, and he outlives the two years), a distribu-

Countess of Jersey, 1 Johns. and H. 721; Cory v. Eyre, 1 D. J.
& §. 149; Shropshire Union Railways, etc., Co. v. The Queen,
L. R. 7 H. L. 496.*
1 2 Sp. 204; Wilcocks v. Wilcocks, 2 White and Tudor’s Lead.
Cas. Eq., 4th Am. ed. 833, ef seg.; Blandy v. Widmore, id. 347.+
2 Id.; 2 Sp. 608, 609.

 

* Adams’s Eq. [160]; Equity looks at the substance of things.
Texas v. Hardenberg, 10 Wall. 68. But if the party having the
subsequent equity clothes himself with the legal title before he
has notice of the prior equity such legal title will prevail. Rex-
ford v. Rexford, 7 Lans. (N. Y.), 6.

+ Adams’s Eq. [104].
GENERAL MAXIMS. 29

tive share will not be a performance or a satisfaction
of the covenant.’ 52.
XIII. It is a rule both at Law and in

: : 13. Li
Equity, that whenever one of two innocent must be

persons must suffer, he who, contrary to petuon aee
legal or moral obligation, has occasioned the *”” =
loss, or enabled another to occasion the loss, must bear
it. But the mere omission by a person to do some-
thing which it is not his duty to do, but which, if done,
would have prevented the loss, is not sufficient to ren-
der him liable for such loss.” 53.
XIV. It may be observed in this place,

oot 14. Rules

that it is a rule, that although the property astoforeign

és : or colonia!
in controversy be situate in a country out of property or

contracts.

the jurisdiction of the Court, whether within
the English dominions or not, yet the Court, in all
cases where the proper parties are within the territo-
rial process of the Court, will afford relief, so far as it
can be afforded, by proceeding against the persons, and
not directly against the property. Thus a bill cannot

1 2 Sp. 609.

2 See judgment of Lindley, J., in Keith v. Burrows, L. R. 1 C.
P. D. 734.

3 See St. 3 1299-1300, 1352 a; 2 Sp. 7; Penn v. Lord Balti-
more, 2 White & Tudor’s Lead. Cas. Eq., 4th Am. ed.. 1806, et

seqg.*

 

*. The same principle has been asserted by the Supreme Court
of the United States in its broadest form; and it has been held
that in cases of fraud, of trust, or of contract, the jurisdiction of a
Court of Equity is sustainable wherever the person may be found,
although lands not within the jurisdiction of that Court may be
affected by the decree. St. Eq. Jur. 3 1297; Massie v. Watts, 6
Cranch, 160; Moore v. Jaeger, 2 MacArthur, 465.
30 GENERAL MAXIMS.

be brought for a partition of land situate in a country
out of the jurisdiction; for the Court cannot award a
commission there. But a bill may be maintained for
an account of the rents and profits of land out of the
jurisdiction, or for a specific performance of an agree-

. ment respecting such land.? And a foreclosure decree
being a decree in personam, depriving the mortgagor
of his personal right to redeem, the Court has jurisdic-
tion to make such a decree between an English mort-
gagor and mortgagee of land in one of the colonies.*
And the Court has gone so far as indirectly to over-
haul the judgments of foreign Courts, and even the
sales made under those judgments, where fraud has
intervened in those judgments, or a grossly inequitable
advantage has been taken.‘ But a plea of fraud was
a good defence at Law to an action on a foreign judg-
ment, and therefore the Court of Chancery would not
interfere with the action at Law, on the ground that
such judgment was obtained by fraud.® 54.

If a matter is within the jurisdiction of a tribunal
of competent jurisdiction in another country, a Court
of Equity, except under special circumstances, will
leave the matter to be disposed of by that tribunal.’
55.

The right to personal property follows the domicile,

2 St. 2 1292; 2 Sp. 8, n (d).

2 St. 31291, 1300, 7438, 744.

3 Paget v. Ede, L. R. 18 Eq. 118.

4 St. @ 1294; 2 Sp. 9.

® Ochsenbein v. Papelier, L. R. 8 Ch. Ap. 695.
° 2 Sp. 10.
GENERAL MAXIMS. 31

but the right to land or immovable property is to be
determined by the law of the country where it is situ-
ate. Yet if that question is mixed up with others—
for instance, with matters of account, which can be
more conveniently disposed of here—the Court will
entertain jurisdiction of the whole matter, giving di-
rections, in case of need, for instituting any proceed-
ings in the Colonial Courts.’ 56. _

The remedy upon contracts must be that which is
given by the law of the country where the parties re-
side.” But contracts are generally construed according
to the law of the place in which they were made.
And, as a general rule, a contract will not be enforced
unless it is valid both by the law of the country in
which it was made, and by the law of the country in
which it is sought to be enforced? 57,

Where a written contract is made in a foreign
country and in a foreign language, an English Court,
in order to interpret it, must first obtain a translation
of the instrument; secondly, an explanation of the
terms of art (if it contains any); thirdly, evidence of
any foreign law applicable to the case; and fourthly,
evidence of any peculiar rules of construction, if any
such rules exist, by the foreign law. And, with this

' 2 Sp. 12; see Bailee v. Bailee, L. RB. 5 Eq. 175.

2 2 Sp. 14.
3 2 Sp. 18, 14; Hope w. Hope, D. M. & G. 731.*

 

* Story’s Confl. Laws, 3 544, 545. Though a Court of Equity
cannot act directly on land not within its jurisdiction, it may com-
pel the holder of the title, who is a party before it, to give effect
toa lien. Lewis v. Darling, 16 How. Sup. Ct. 1.
32 GENERAL MAXIMS.

assistance, the court must then interpret the contract
itself on ordinary principles of construction.’ 58.

$8 Telaae XV. “Ifa person has sustained injury in
ference of consequence of any order or proceeding of a

fee” Court of Equity, or by reason of anything

the deci-
sions of - which has occurred in the execution of its

Courts of

Equity. process, he must seek redress there, and not
in a Court of Law. If the matter complained of in-
volves a question of the jurisdiction of equity, or of
the validity or effect of its order or process, it will
never allow such a question to be carried for decision
to a Court of Law; but if, admitting the jurisdiction
of the Court and the validity of its order, redress is
sought merely in respect of some irregularity or excess
in the execution of its order, it will, at its discretion,
either itself give redress to the aggrieved party, or
permit him to proceed at Law, as justice and conveni-
ence may require.”? 59.

1 Di Sora v. Phillipps, 10 H. L. Cas. 624, 633.
® Walker v. Micklethwait, 1 Dr. & Sm. 49.
DIVISION OF EQUITY. 33

=

SECTION IV.
OF THE DIVISION OF EQUITY.

THE subject of Equity Jurisprudence may be con-
veniently, and perhaps most properly, treated under
the following heads, designated according to the more
distinctive characteristics of the relief afforded, or the
general objects sought to be effected.

I. Of Remedial Equity, specifically so termed.
II. Of Executive Equity.
III. Of Adjustive Equity.
IV. Of Protective Equity, irrespective of disability.
V. Of Protective Equity, in favor of persons
under disability. 60.
TITLE I.

Of Remedial Equity, specifically so termed.
CHAPTER I.
OF ACCIDENT.

AN accident, in the usual sense of the term, is
an occurrence not referable to design. 61.

Accident, as remediable in Equity, MAY Defnition
be defined to be an unforeseen and injurious ° ***ie"t.
occurrence, not attributable to mistake, neglect, or
amizconduet. 62.

Thus, the reduction, by Act of Parlia-
merit, of public stock directed by will to be tio in the
set apart to answer an annuity, is an acci- ean oe
dent, remediable in Equity by decreeing the “*™
deficiency to be made up against the residuary leg-
atees," 63.

I. There are many cases of accident in + cg.
which due relief could always be obtained ‘ dents reme-
at Law; and there Equity would not in- “”
terpose2 64.

II. On the other hand, there are many ny. Acci-

. . dents not
cases in which no remedy can be had remediable
either at Law or in Equity.2 65. Thus, Eauiy,

1. No relief will be granted where the ,, ,, eases
accident arose from the gross neglect or eetke
fault of the party seeking relief, or his sf:
agents. 66.

18.993 7 S279. PSL ET9 SE. 2 105.
38 ACCIDENT.

2. And where a person has expressly and
absolute absolutely contracted or covenanted to doa
ceees particular thing, it is no ground for the in-
terference of a Court of Equity, that he has been pre-
vented by accident from fulfilling his engagement, or
from deriving the full benefit of the contract on his
side. For he might have prevented any injury to
himself from accident, by making proper excep-
tions, but since he has made no such exceptions,
Equity will not conjecturally limit a liability which
in terms is general and unqualified." So
that if a lessee covenants to keep the demised
premises in repair, he will be bound to do so, notwith-
standing any unavoidable accident by which they are
Or to pay destroyed or injured.’ And where there'is a
Tent, covenant to pay rent during the term, with-
out any exceptions, it must be paid, notwithstanding
the premises are accidentally burnt down during the
term.’ So, if an estate is sold for a certain sum of
Or anan- money and an annuity for the life of the
nulty: vendor, and the vendor dies before the
receipt of any annuity, Equity will not grant relief.‘
And an antenuptial settlement cannot be set aside,
Fic hii reformed, or varied, on the ground that
_ of the con it was intended that there should be a pe-

cuniary consideration on both sides, whereas
the pecuniary consideration on one side has failed. 67.
3. Nor will relief be granted in favor-of

Orofacoun- : : :
tervailing @ person whose equitable right to assistance
is not equal, or not more than equal to the

1 See St. 2101-5. 2 St.¢101. %St.¢102. * St. 3 104.
5 Campbell ». Ingilby, 21 Beav. 567; 1 D. & J. 393.

To repair,
ACCIDENT. 39

equitable right to protection which is possessed by the
party against whom the relief is sought. For this
reason relief is not given against a bond fide purchaser
for valuable consideration, without notice ;* or against
an heir in tail or remainder-man in tail, in favor of
persons claiming under the tenant in tail.’ 68.

4. And so relief will not be granted in 9, o¢ want
favor of a person, who, although a great °feauity:
loser through an accident, has no equitable title to
relief, or as little as the person against whom relief
is sought. Thus, no relief will be afforded 4, jnere a
to the legatees or devisees under a will de- 7uy,8¢e
fectively executed :* for, being mere volun- °**uted.
teers, they have as little equity as the heir or next of
kin, or even less, inasmuch as fortior et equior est dis-
positio legis quam hominis (Co. Litt., 338 a), and
therefore the legal right which has vested in the latter
will not be taken away; asthe maxim is, that “where
the equity is equal the law must prevail.” 69.

III. But where a Court of Law cannot, q Acci-
or, in similar cases, originally could not, or {fen ”
did not,.give adequate relief, and take due "1"
care of the rights of all persons interested, and the

_ party prejudicially affected is free from blame in respect
of the accident, and has a conscientious title to relief,
it will be granted by a Court of Equity, if it can be
granted without derogating from any positive agree-
ment, or violating any equal or superior equity in an-
other person.* 70.

1 See St. 2 108. 2 St. 2 107. 3 See St. 3 105 a, 106.
« See St. 4 28, 64 i, 79, 81, 85, 89, 101, 105, 106, 109.
40 ACCIDENT.

eee 1. In cases of destroyed, lost, or sup-
qicere, pressed deeds, the jurisdiction of Equity, to
in cases of compel a discovery, wouldseem to have been

destroyed

lst of Sp universal, because this was a preliminary as-
deeds, and sistance peculiar to Equity. And where a
discovery only was sought, Equity would grant it with-
out any affidavit of loss; because a person would not
file a mere bill of discovery, unless the instrument
were really lost. 71.

jurisdiow 5 But, in these cases, the jurisdiction for re-
lict in such Lief, in addition to a discovery, was of lim-
neeRe ited extent ; for, in some of these cases, Courts
of Law have all along been able to administer, and
have been in the habit of doing, complete justice.’
Requisites ‘And where such relief was sought in a
pevainin Court of Equity an affidavit of the fact

the juris-
dletion for of destruction, loss, or suppression must
such cases. have been annexed to the bill; because,
in such cases, it was desired to change the forum from
a Court of Law, which prima facie was the proper
forum, toa Court of Equity ; aid therefore an affi-
davit ought to be required, to prevent an abuse of the
process of the Court. There must also have been an
offer of indemnity in the bill when the nature of the.
case seemed to require it? And in order to maintain
the suit, it was further indispensable that the destruc-
tion, loss, or suppression, if not admitted by the
answer, should be established, at the hearing of the
cause, by satisfactory proofs. 72. :

1 St. 2 83, 84,

* See St. ¢ 83; Mitford & Tyler’s Pleadings, 209, 218, 219.
3 See St. 2 88.
ACCIDENT. 41

Among other instances in which Equity iitaiace
exercises jurisdiction for relief in the case of Manley as
destroyed, lost, or suppressed deeds, relief jurisdiction

for relief in
will be given in Equity where the plaintiff ‘*°* °°
avers that a deed relating to land has been either de-
stroyed or concealed by the defendant, but he (the
plaintiff) knows not whether it has been so destroyed
or whether it has been only concealed; for, there a
Court of Equity will make a decree (which a Court
of Law formerly could not), that the plaintiff shall
hold and enjoy the land until the defendant shall
produce the deed, or admit its destruction.’ 73.

So if a deed concerning land is lost, and the party
in possession seeks a discovery, and to be established
in his possession under it, Equity will afford relief
74,

2. A person may also come into Equity 9 suns
for payment of a lost bond; because until diction. is
a recent period, no relief was given at Law,
on account of a want of a profert.? And besides, at
Law, the defendant had not the protection of the oath
of the plaintiff to the fact of the loss. Again, it is
often proper to grant relief upon the terms of the
party giving a bond of indemnity; and formerly a
Court of Law could not insist on that as a part of
the judgment; and, although it has sometimes re-
quired the previous offer of an indemnity, yet such
an offer may be unsatisfactory in many cases; for, in
the meantime, the circumstances of the party to the
bond of indemnity may undergo a great change.‘ 75.

19.384. 781.284 *% St. 281, 82. 4 St. 2 82.
4

cases of lost
bonds.
42 ACCIDENT.

3. Courts of Law could always enforce payment of
money due on a lost negotiable note or other

. Turisdic- : :
fignincases negotiable unsealed security; because no

Gialet cece profert was necessary, and no oyer was al-
ea lowed of such securities. Courts of Equity,
therefore, would not formerly relieve in such a case,
unless there was an offer of indemnity in the bill,
constituting a ground of jurisdiction.’ And Courts
of Equity had no jurisdiction to give relief on account
of the destruction of a bill of exchange, because there
was always a complete remedy at law in such cases.’ 76.

4. In the absence of any countervailing
4 rele te Equity, relief will be granted by a Court of
penile Equity, in the case of a defective execution
cution of of a mere power,(a) where it is created by
pews" an ordinary assurance, and where the defect
is not of the very essence of the power, and the de-
fective execution is in favor of a charity, or a pur-
chaser, or a creditor, or an intended husband or a
wife, or a legitimate child. And the mere manifesta-
tion of an intention to execute the power, provided it
clearly appears in writing, will be deemed a defective
execution of the power. 77.

But Equity will not interpose in the case of a non-
execution of a mere power; for that would be de-
priving the donee of the right of discretion in regard

1 St. 2 85, 86.
2 Wright v. Lord Maidstone, 1 K. & J. 701.*

 

* Davies v. Davies, 6 Iredell Eq. 418.
(a) See the stat. 22 & 23 Vict. c. 35, s. 12, as to the mode of
execution of powers.
ACCIDENT. 43

to the exercise of the power. Nor will Equity sup-
port a defective execution of a power, in favor of the
donee of the power, or of a husband (except in the
case of an intended husband), father or niother, or of
a grandchild or more remote relation, or of a mere
volunteer, except where a strict compliance with the
power has been impossible from circumstances beyond
the control of the donee; as where the prescribed wit-
nesses could not be found; or where an interested
person, having possession of the deed creating the
power, has kept it from the party executing the power,
so that he could not ascertain the formalities required.
Nor can Equity dispense with the regulations pre-
scribed where the power is created by Statute, at least
where they constitute the apparent policy and object
of the Statute, or with the consent of persons whose
consent is required. Nor will an execution by an
absolute deed, instead of by will, be supported ; as
that would be repugnant to the power; since it would
not be revocable like a will.. 78.

But where the power is coupled with a trust, Equity
will grant relief, even in case of the non-execution of
the power: because, in this case, the donee was under
an equitable obligation to exercise itt 79.

1 See, as to these propositions respecting powers, St. 4 94-8,
169-177 ; 2 Sugd. Pow., 7th ed. 88-175; Tollet v. Tollet, 1 White
and Tudor’s Lead. Cas. Eq., 4th Am. ed. 227, e¢ seg.; Harding v.
Glyn, 2 Lead. Cas. Eq., 2d ed. 789, 811; and Smith’s Compendium

of the Law of Property, 5th ed., par. 2126-2131; Garth v. Town-
send, L. R. 7 Eq. 220; Kennard v. Kennard, L. R. 8 Ch. Ap. 227.*

* Beatty v. Clark, 29 Cal. 11; Pepper’s Will, 1 Pars. Eq. 436,
446; Porter et al. v. Turner ef al., 3-Sergeant and Rawle, 108,
111, 114.

 
44 MISTAKE.

CHAPTER II.
OF MISTAKE.(a)

A MISTAKE, as remediable in Equity, may be de-
fined to be an act which would not have been done, or
Definition @2 Omission which would not have occurred,
ofmistake. but from ignorance, forgetfulness, inadver-
tence, mental incompetence, surprise, misplaced con-
fidence, or imposition. 80.

The following propositions appear to be deducible
from the cases on the subject: :

L Mistake  .. Where the mistake is unilateral, and
madevythe the sufferer is the person by whom it was
laa made, relief will not be granted, unless there
is some circumstance which gives rise to a presump-
tion that there has been some undue influence, mis-
representation, imposition, mental imbecility, surprise,
or confidence abused ;} and even where this is the
case, Equity will not interfere as against a bond fide
purchaser for valuable consideration, without notice.’
81.

1 See St. 2 117-120, 133-5, 137, 1388 ; Broughton »v. Hutt, 3 D.

& J. 501; Bentley v. Mackay, 31 Beav. 143.
? St. ¢ 139, and see Maxim VI, par. 34, ante.

 

(a) See the stat. 22 & 23 Vict. c. 35, s. 13, as to mistaken pay-
ments in case of sales under powers.
MISTAKE. , 45

In regard to mistakes in matters of Law, Scene is
it is a maxim that ignorantia legis non ex- a matter of
ceusat.' But-where the mistake is one of title,
arising from ignorance of a principle of Law of such
constant occurrence as to be understood by the com-
munity at large, this is considered sufficient to afford
such a presumption as above mentioned, so as to en-
title the party to relief.? 82.

The court has power to relieve against mistakes in
Law as well as against mistakes in fact, if there is any
equitable ground for such relief. But when money
has been paid over with a full knowledge of all the
facts, and the payment has been acquiesced in with
such knowledge, and after taking counsel’s opinion, it
cannot afterwards be recovered back.? 83.

And in regard to mistakes in matters of pie
fact, relief will be granted on the same pre- matter of
sumption, where the mistake is unilateral,
and the fact was material to the act or contract, and
was not doubtful from its own nature, and was a fact
which could not be ascertained by such diligence or
care as is usual in transactions of the like nature, and

1 St. @ 111, 113, 116, 138, 140; Powell v. Smith, L. R. 14 Eq.
85.*

2 See St. 3 121-5, 128, 137.

3 Rogers v. Ingham, L. R. 3 Ch. D. 351.

 

* Adams’s Eg. [169] note and cases cited; Bank of the United
States v. Daniel, 12 Peters, 32, 55, 56; but see also Hunt v. Rous-
maniere, 1 Peters, 15; 8 Wheat. 211-215. .
46 MISTAKE.

of which the other party was under a legal obligation
to inform the mistaken person.’ 84.
elite And ignorance of foreign Law is deemed
of foreign ignorance of fact, because no person is pre-
sumed to know foreign Law.’ 85.
But ignorance, on the part of the vendor,
Vendor's ¥ ‘
mistake as of circumstances tending to enhance the value
of the property, of which the vendee was
aware, will not form a ground for relief where it is
not a case of mutual confidence.’ 86.
iL Mutual LL. Where the mistake is mutual, the
mistake. transaction will be binding, unless it was
founded in a mutual surprise; or the mistake consists
in supposing that the subject-matter of the contract
existed, when in reality it was not in existence; or the
mistake consists in one party supposing that he had
purchased something which the other did not intend
to sell;* or the mistake is the result of a miscalculation
by the defendant’s agent in favor of the defendant;* or
by reason of the fact being otherwise than was sup-
posed, there is no consideration to support the trans-
1 See St. 2 117, 118, 140, 141, 146-8, 150, 151.*

2 St. 21404 3 St.9149. 4 St. 3113, 134, 142, 143 a, 144,
5 Carpmael v. Powis, 10 Beav. 36.

 

* To induce a Court of Equity to decree a rescission of a con-
tract on the ground of mistake, the mistake must be shown to be
‘material. The Court must be satisfied that but for the mistake,
the complainant would not have assumed the obligation from
which he seeks to be relieved. Grymes v. Sanders, 93 U.S. (
Otto), 55. :

+ And it must be proved as a fact. Haven v. Foster, 9 Pick.;
Consequa v. Willings, 1 Peters C. C. 229.
MISTAKE. 47

action ;! or both parties were under the impression that
one of them was the owner of property which in reality
belonged to the other;? or one of the parties made a
material misrepresentation, though innocently, which
influenced the other.’ 87.

III. In the case of a compromise of doubt- 7 oom.
ful rights, or of rights which are considered Pro™ises.
by the parties to be doubtful, to make it binding, the
parties must be at arm’s length, on equal terms, with
equal knowledge, and with sufficient advice and pro-
tection where, from their relative position or other
circumstances, they need itt If all the parties are in
a state of mutual ignorance, or they are all acquainted
with the doubts which exist in their favor, the com-
promise will be binding. But where one or more of
them is or are not aware of the doubts existing in his
or their favor, while the fact that such doubts exist is
known to the other or others of them, the compromise
will not be binding,’ because in that case there is room

1 Cochrane v. Willis, 34 Beav. 359; L. R. 1 Ch. Ap. 58.*

2 Cooper v. Phibbs, L. R. 2 H. L. 149.

5 Fane v. Fane, L. R. 20 Eq. 698.

4 Moxon »v, Payne, L. R. 8 Ch. Ap. 881, 885.

5 See St. ¢ 130-2; Lucy’s Case, 4 D. M. & G. 356; Stapilton »,
Stapilton, 2 White & Tudor’s Lead. Cas. Eq., 4th Am. ed. 824, et

seq.t

* Allen v. Hammond, 11 Peters, 63, 71-73.

‘| Where the parties have equal means of knowledge, no relief
in Equity will be afforded, on the ground of results being different
from what the parties anticipated. St. Eq. Jur. 2118. And if it
should subsequently appear that the parties were mistaken in their
apprehension of their rights, that alone will not affect the validity
of any compromise or contract, based upon such misapprehension.
Union Bank of Georgetown v. Geary, 5 Peters, 98.

 
48 MISTAKE.

for the presumption of surprise or confidence abused ;
and the very nature of the transaction made it requi-
site that all the parties should be on an equality as
regards knowledge or ignorance of the doubts existing
in their favor. To render a family compromise bind-
ing, there must be an honest disclosure, by each party
to the other, of all such material facts known to them,
relative to their rights and title, as are calculated to
influence the judgment in the adoption of the compro-
mise; and any advantage taken by either of the par-
ties of the known ignorance of the other as to such
facts, renders such compromise void in Equity.’ 88.
IV. Where by mistake an instrument
toate” inter vivos is not what the parties intended,
a writen’ or there is a mistake in it other than a mis-
instrument. * :
or in regard take in Law, or any acts necessary to give
validity to the instrument have been omitted,
and the mistake is clearly made out by admissible and
satisfactory evidence, or is admitted on the record, or
is evident from the nature of the case, or from the rest
of the deed, Equity will rectify the mistake;? except

1 Smith v. Pincombe, 3 Mac. & G. 659; Greenwood v. Green-
wood, 2D. J. & S. 28; Brooke v. Lord Mostyn, 2 D. J. & S. 373.

2 St. 3 152, 157, 159, 166, 168; and see Sugd. V. & P., 10th ed.,
ch. 8, sect. 11, pl. 2; Lord Glenorchy v. Bosville, and Legg v. Gold-
wire, 1 Lead. Cas. Eq., 2d ed. 1, et seg. ; Meadows v. Meadows, 16
Beay. 401; Murray v. Parker, 19 Beav. 305; Torre v. Torre, 1
Sm. & Gif. 518; In re Morse’s Settlement, 21 Beav. 174; Wright
v. Goff, 22 Beav. 207; Wolterbeck v. Barrow, 23 Beav. 423;
Wilson v. Wilson, 5 H. L. Cas. 40, 52-7, 59, 63, 71; Mostyn v.
Mostyn, 5 H. L. Cas. 155; Fowler v. Fowler, 4 D. & J. 250;
Earl of Bradford v. Earl of Romney, 30 Beav. 431; Garrard v.
MISTAKE. 49

as against a bond fide purchaser for valuable con-
sideration, without notice,’ or other person having an
Equity equal to that of the plaintiff? such as the issue
in tail, or a remainder-man in tail, where there is no
Equity to affect the conscience of such issue or re-
mainder-man.? 89.

But in order to enable the Court to rectify an ante-
nuptial settlement by striking out a part, it must be
proved that it contains something which has been in-
serted by mistake, contrary to the intention of all the
parties. And where an instrument is substantially
what the parties intended, although so framed under
a mistaken view of the Law, the court will not rectify
the mistake.? A bond to leave or convey property

Frankel, 30 Beav. 445; Walker v. Armstrong, 8 D. M. & G.
531; Daniel v. Arkwright, 2 Hem. & Mil. 95; Earl of Malmes-
bury v. Countess of Malmesbury, 31 Beav. 407; Scholefield ».
Lockwood (No. 2), 32 Beav. 436; Harris v. Pepperell, L. R.5
Eq. 1; Druiffv. Lord Parker, L. R. 5 Eq. 181; Brooke ». Haymes,
L. R. 6 Eq. 25; In re De La Touche’s Settlement, L. R. 10 Eq.
599; Smith v. Iliffe, L. R. 20 Eq. 666; Cogan v. Duffield, L. R.
20 Eq. 789; In re Boulter, Ex parte National Provincial Bank,
L. R. 4, Ch. D. 241.*

1 St. 2165; 2 Sp. 195. 2 St. 2176. 3 St. 3178.

4 Rooke v. Lord Kensington, 2 K. & J. 753, 764; Sells v. Sells,
1 Dr. & Sm. 42; Thompson v. Whitmore, 1 Johns. & H. 268;
Elwes v. Elwes, 2 Gif..545; 3D. F. & J. 667.7

5 St. 2 113-115.

 

* Bradford v. The Union Bank, 13 How. Sup. Ct. 66; McIntosh
v. Saunders, 68 Ill. 128; Graves v. Boston Marine Ins. Co., 2
Cranch, 442, 444; Lyman v. United Ins. Co., 2 John’s Ch. 630;
Adams’s Eq. [168], and cases cited.

+ Mitchell v. Mitchell, 40 Ga. 11.

5
50 MISTAKE.

has, however, been sometimes upheld in Equity, as an
agreement defectively executed.’ 90.

A husband cannot take proceedings to have a settle-
ment rectified where he executed it with a knowledge
of its contents, though he gave notice before the mar-
riage that he should apply to the Court to have it rec-
tified? 91.

A Court of Equity will not remedy a defect or sup-
ply an omission in a deed in favor of a stranger where
there is no consideration, even in the plainest case, and
even when it has arisen from mere mistake, and though
the correction would not be inconsistent with the deed.
92.

A voluntary deed cannot be reformed except with
the consent of the donor.* 93.

It should be observed that where the final instru-
ment of conveyance or settlement differs from the pre-
liminary contract, that: very circumstance affords of
itself some ground for presuming an intentional change
of purpose, unless, from some recital in it or from some
attendant circumstances, it appears to have been in-
tended to be merely in pursuance of the original con-
tract. 94.

1 St. 3136. % Eaton v. Bennett, 34 Beav. 196. % 2 Sp. 886.

4 Phillipson v. Kerry, 32 Beav. 628; Broun v». Kennedy, 33
Beay. 133, 147. But see Thompson v. Whitmore, 1 Johns. & H.
268.*

5 St. 2 160.

 

* The Courts of Equity will not rectify a voluntary deed unless
all the parties consent. St. Eq. Jur. 2 164 e, and cases there cited,
MISTAKE. 51

When there are articles and a settlement before
marriage, as a general rule the settlement alone can be
looked to; if it is different from the articles, it must
be taken as a new agreement. But if it purports to
be executed in pursuance of the articles, or if there is
clear and satisfactory evidence showing that the dis-
crepancy has arisen from a mistake, the Court will
reform the settlement, and make it conformable to the
real intention of the parties.' If the articles are be-
fore marriage and the settlement after marriage, the
articles are in effect the binding instrument; and if
the settlement gives estates or interests different from
those which the Court would give on the construction
of the articles, the settlement will be reformed, as be-
tween the parties and their representatives and mere
volunteers, but not as against a purchaser for valuable
consideration without notice.? 95.

And as regards the admissibility of the evidence, it
is a rule of the Common Law, independently of the
Statute of Frauds, that parol evidence is not admissible
to disannul, substantially add to, subtract from, qual-
ify, or vary a written instrument.? But upon prin-
ciple it would seem that cases of accident, mistake, and
fraud, are (in many instances, at least) to be deemed,
in Equity, exceptions to this rule.’ 96.

1 2 Sp. 140; Bold v. Hutchinson, 5 D. M. & G. 558, 568.*

2 2 Sp. 140, 141; Peachy on Settl. 132.

3 See St. 2 153, 158; and see also Sugd. V. & P., 10th ed., ch.
3, sect. 8, pl. 2, 26, 33, etc., and sect. 11, pl. 5.

‘ St. @ 155, 156, 161, notes: remarks of Sir J. Romilly, M. B.,
in Murray v. Parker, 19 Beav. 398.

 

* St. Eq. Jur. 2 160, and notes.
52 MISTAKE.

V. Where an instrument is so general in its terms
as to release the rights of a party to property, to which
he was wholly ignorant that he had any title, and
which was not within the contemplation of the bar-
gain, the Court confines the release to what was in-
tended to be released.’ 97.

VI. Equity will relieve where an instrument has
been delivered up or cancelled, under a mistake of a
party, and in ignorance of the facts material to the
rights under it.’ 98.

VII. Equity will also supply defects in the execu-
tion of powers, on the ground of mistake, in the cases
mentioned in the preceding chapter under the head of
Accident. 99.

VIII. Equity will rectify a clear mistake or omis-
sion in a will, if it is apparent on the face of the will.
But parol evidence is generally inadmissible. It is
admitted, however, in certain cases of mistake in the
name or description of the devisee or legatee.*? 100.

IX. Equity will grant relief, where a mistake in a
written contract is fairly presumable from the nature
of the transaction. And hence, where there has been
a joint loan to two or more obligors, and they are only

1 St. 3 145. 2 St. 2 167.

3 See 1 Jarm. on Wills, 2d ed. 361-3; Wigram on Wills, 51;
Mostyn v. Mostyn, 5 H. L. Cas. 155; St. 3 179-181; Doe d. His-
cocks v. Hiscocks, Tud. Lead. Cas. Real Prop., 2d ed. 819.*

 

* 1 Redf. on Wills (8d ed.), 509, 591; Salmon v, Stuyvesant,
16 Wend. 321.
MISTAKE. 53

made jointly liable, the Court will make the bond
joint and several.’ 101.

X. An instrument may be entirely set Aroiaance

: : f a writt
aside on the ground of mistake or fraud.? instrument
. 0. e
And a voluntary deed of gift may be or- ground of

dered to be cancelled on either of those mua?”

grounds, and the money ordered to be given

back to the donor.’ And in cases within the Statute
of Frauds, it is an easier matter totally to avoid an
agreement than to vary it; for, in the former case, the
Statute of Frauds has no influence whatever; since “it
does not say that a written agreement shall bind, but
that an unwritten agreement shall not bind.”* 102.

1 St. 2 163, 164; Wilson v. Wilson, 5 H. L. Cas. 40.*

2 See St. 2 161; Phillipson v. Kerry, 32 Beav. 628; Price v.
Ley, 4 Gif. 235.

3 Lister v. Hodgson, L. R. 4 Eq. 30.

4 Sugd. V. & P., 10th ed., ch. 3, s. 8, pl. 32.

 

* Jn all cases of mistake in written instruments, Courts of Equity
will interfere only as between the original parties, or those claim-
ing under them in privity; such as personal representatives,
heirs, devisees, etc.

As against bond fide purchasers fur « valuable consideration
without notice, Courts of Equity will grant no relief; because they
have, at least, an equal equity to the protection of the Court. St.
Eq. Jur. 3 165, and cases there cited. :
54 ACTUAL FRAUD.

CHAPTER III.
ON ACTUAL FRAUD.

THE modes of fraud are infinite; and “ it
Unsafe to | has been said, that Courts of Equity have,

in generalor very wisely, never laid down, as a general

eanlty, edial proposition, what shall constitute fraud, or

ee era"? any general rule beyond which they will

not go, upon the ground of fraud, lest other
means of avoiding the equity of the Courts should be
found.’ In accordance with the spirit of this re-
mark, the writer abstains from attempting to give a
definition of fraud in general. It is usually and ac-
curately divided, however, into two large classes,
designated, defined, and treated of under the names
of Actual Fraud and Constructive Fraud. 103.
Eee An actual fraud may be defined to be
of actual something said, done, or omitted, by a per-

son with the design of perpetrating what he
must have known to be a positive fraud. 104.
raring: A Court of Equity will not entertain
tionin cases jurisdiction to set aside a will obtained by

fraud, or establish a will suppressed by
fraud; for in such cases, the proper remedy is exclu-

1 St. 2 186.
ACTUAL FRAUD. 55

sively vested in the Court of Probate.!| But where
the fraud does not go to the whole will, but only to
some particular clause, or where the fraud is in un-
duly obtaining the consent of the next of kin to the
probate, Courts of Equity will lay hold of these cir-
cumstances to declare the executor a trustee for the
next of kin.” 105.

In a great variety of other eases, fraud is cognizable
at_ Law, as in cases of fraud in the sale of chattels
personal ; and in some of these cases adequate relief
could be, and constantly is, obtained at Law.’ 106.

It is a rule as well in Courts of. Law a8 yisence of
in Courts of Equity, that fraud is not to be 134.
presumed. But, on the other hand, neither at Law
nor in Equity is positive proof of fraud indispensably
necessary. A Court of Equity, however, will act on
a lower degree of proof than that which would be re-
quired in a Court of Law.* 107.

When a case is based on fraud, the fraud must be
proved, and no relief will be given in the suit in which
such a case is made, on any different grounds. But
where material allegations of fraud are proved, the

1 St. 2184, and note; 1 Wms. on Executors, 5th ed. 341 ; 2 Steph.
Com. 202-5; Jones v. Gregory, 4 Giff. 468; 2D. J. & 8. 83.*
2 St. 3 440. 3 St. 2 184, and note.t 4 See St. 2 190.

 

* The American decisions on this subject have followed the
English authorities. See Broderick’s Will, 21 Wall. 503 ; Gaines
et ux. v. Chew et al. 2 How. Supt. Ct. 619, 645, 646, and cases con-
sidered by. Mr. Justice McLean in the opinion.

+ Bigelow on,Fraud, 322, et seg.
56 ACTUAL, FRAUD.

plaintiff will obtain relief although other allegations
of fraud are not proved.’ 108.

It would be impossible, and unnecessary if it were
possible, to enumerate all the different instances in
which Courts of Equity will grant the relief on the
ground of actual fraud. We shall only notice a few
of them under these two heads: 109.

I. Of frauds which receive that denomi-
rua nation from a consideration of the conduct
frauds. of the guilty parties, irrespective of any
peculiarity in the condition of the injured parties. 110.

II. Of frauds which receive that denomination
mainly or in a great measure from a consideration
of the peculiar condition of the parties upon whom
they are practiced. 111.
aus I.—1. Misrepresentation, whether by word

. First class é 3 :

of actual or deed, constitutes fraud.” Equity will not
interfere, however, if the fraud was not in

1. Misrepre- the transaction which creates the contract,

sentation. 2 a

: but in a distinct unconnected transaction.
Nor will it interfere if the misrepresentation was ina
trifling or immaterial point, or if no injury arose from
it.| For, in the first case, the evils of litigation would

1 Moxon v. Payne, L. R. 8 Ch. Ap. 881, 887.

2 St. ¢ 191, 192; Jennings v. Broughton, 5 D. M. & G. 126;
Kay v. Smith, 21 Beay. 522.

3 Rolt v. White, 3 D. J. & S. 360.

4 St. 2191, 195, 196, 203; Pulsford v. Richards, 17 Beav. 96.*

 

* Nor where parties have equal means of information. Brown
v. Leach, 107 Mass.
ACTUAL FRAUD. 57

be far greater than the injury occasioned ; and, as to
the second case, Courts of Equity do not profess to
punish guilt, but to redress wrongs. And Equity
will not interfere if the party was not misled by the
misrepresentation ;* because, in that case, he was not
injured by it. Nor will the Court interpose if the
misrepresentation was vague and inconclusive,’ or if
it merely amounted to the common language of puff-
ing and commendation of things sold ;* or if it was
in a matter of opinion or fact equally open to the in-
quiry of both parties, and in regard to which neither
could be presumed to trust the other ;* or if the party
injured may properly impute the loss to a want of
ordinary care or. discretion on the part of himself or
his agents.’ For the Court does not sit to redress in-
juries which the injured parties, by ordinary and
proper care, could have prevented. It is no part of ~
Equity Jurisprudence to encourage carelessness. So
great, however, is the confidence which is naturally
reposed by a client in his solicitor, and so important
is it to guard against abuse, that, where a solicitor in-
duces his client to execute a deed upon false and
plausible representations, the Court will order the
deed to be delivered up to be cancelled.’ 112.

1 St. 2 202; Nelson v. Stocker, 4 D. & J. 458.

2 St. 2 192. 8 St. 2 291. 4 St. 2191, 197, 198.

5 St. 3 199, 200 a; but see Reynell v. Sprye, 1 D. M. & G. 656,
710.

6 Vorley v. Cooke, 1 Gif. 230; Ogilvie v. Jeaffreson, 2 Giff.
353.*

 

* But a client may make an irrevocable gift to his attorney with
reference to particular services pending or prospective, but the
58 ACTUAL FRAUD.

Misrepresentation is a ground of relief, whether the
* party who made the assertion or intimation knew it to
be false, or made it without knowing whether it was
true or false.! So that if a person, whether wilfully
or not, makes a false representation to another, with a
reasonable ground for supposing that he or a third
person would act upon such representation, and he or
such third person does act upon it, and is misled
thereby, the person misleading will be made answer-
able for it.2 And where a person has been induced to
enter into a contract by a material misrepresentation
of the other party, he is entitled to have the contract
set aside, and not merely to have the representation
made good? 112a.

A contract induced by fraud is not void, but only
voidable at the option of the party defrauded; and
though the party who was guilty of the fraud cannot
enforce it, yet other persons may, in consequence of it,

1 §t. 193; Pulsford v. Richards, 17 Beay. 95; Rawlins v.
Wickham, 1 Gif. 355; 3 D. & J. 304; Reese River Silver Mining
Co. v. Smith, L. R. 4 H. L. 64.*

2 Hutton v. Rossiter, 7 D. M. & G. 9, 23, 24; Slim v. Croucher,
2 Gif. 37; 1 D. F. & J. 518; Barry v. Croskey, 2 Johns. & H. 1;
Ramshire v. Bolton, L. R. 8 Eq. 294. , <

3 Rawlins v. Wickham, 1 Gif. 355; 3 D. & J. 304; Trail v. Ba-
ring, 4 Gif. 485; Charlesworth v. Jennings, 34 Beay. 96; Hay-
garth v. Wearing, L. R. 12 Eq. 320.

 

mere existence of the relation raises a presumption against the
validity of the gratuity. See Bigelow on Fraud, 195, 196, and
cases cited. St. Eq. Jur. @ 311.

* Sharp v. Mayor, 40 Barb. 256.
ACTUAL FRAUD. 59

acquire interests and rights. which they may enforce
against the party defrauded. 113.

If a person, through the fraud of another, has exe-
cuted a deed, or signed a receipt, containing a repre-
sentation, he must suffer from the fraudulent use made
of such deed or receipt by such other person, rather
than a third person who has, in the ordinary course of
business, without negligence or default, trusted to the
document containing such representation? 114.

. A person may avail himself of what has been ob-
tained by the fraud of another, if he is not only inno-
cent of the fraud but has given some valuable con-
sideration. 115,

2. If a person conceals facts and circum- conceal
stances which he is under some legal or ™*"*
equitable obligation to communicate to the other, it
amounts to a fraud for which Equity will grant relief.‘
As, if a vendor sells an estate, knowing that he has no
title to it, or that there are incumbrances on it, of
which the purchaser is ignorant;’ or if the insured
does not communicate to the underwriters all facts and
circumstances which increase the risk.® 116.

And if a person leases lands, and he knows, and the

1 Oakes v. Turquand, L. R. 2 H. L. 325, 346.

2 Hunter v. Walters, L. R. 7 Ch. Ap. 75.

3 Scholefield v. Templer, 4 D. & J. 433; Hunter v. Walters, L.
R. 7 Ch. Ap. 75.

4 St. 3 204, 207, 215, 217, 220; 2 Sp. 765; Pulsford v. Richards,
17 Beav. 94-6.*

5 St. 2 208. : ® St. 3 216.

 

* See Etting v. Bank of the United States, 11 Wheaton, 59.
60 ACTUAL FRAUD.

lessee does not know, that as to a part the lessor has
no title, and the lessor does not disclose that fact, the
lessee may set aside or repudiate the lease. And he
may refuse the part to which there is no title, and elect
to keep the remainder. And if there is a covenant for
title, express or implied, and an action is brought for
rent, he may claim damages, for breach of the cove-
nant, by way of counterclaim.’ 117.

But a purchaser is not bound to communicate his
knowledge of the value of the property to the vendor ;?
for it is the business of the vendor to know and suffi-
ciently to estimate the worth of his own property.
Thus, if A, knowing that there is a mine in the land
of B, of which he knows B to be ignorant, should
conceal his knowledge of the fact, and enter into a
contract to purchase the estate of B, for a price which
the estate is worth without considering the mine, the
contract would be good? 118.

In many cases, the maxim caveat emptor is applied;
and unless there is some misrepresentation or artifice
to disguise the thing sold, or some warranty as to its
character or quality, the purchaser is bound, not-
withstanding there may be material intrinsic defects
in it known to the vendor, and unknown to the pur-
chaser.4 119.

1 Mostyn v. West Mostyn Company, L. R. 1 C. P. D. 145.
2 St. @ 207, note; Walters v. Morgan, 3 D. F. & J. 718.*
5 St. @ 205. ‘St. 3 212.4

 

* See Kent. Comm. Lect. 39, p. 478, 479 (4th ed.).
} 2 Blackst. Comm. 451.
ACTUAL FRAUD. 61

In foro conscientic, each party is bound to commu-
nicate to the other his knowledge of all material facts,
not discoverable by the other, or of which he knows
the other to be ignorant. For this is required by the
golden maxim, that we should do unto others as we
would that they should do unto us. But if Equity
were to attempt to enforce the observance of so broad
a rule, a far greater inconvenience would ensue than
that which is now experienced. For it would often
be a matter of doubt with the party wronged, whether
the other was really aware of the defect or advantage
which he did not disclose. And, frequently, that
could only be ascertained from his admissions or. de-
nials in a suit. So that, in order to determine this,
proceedings for relief against fraud would often be
taken in total uncertainty as to the existence of that
knowledge, which was of the very essence of the sup-
posed fraud, and absolutely necessary to be proved be-
fore any ground for relief could be said to exist. And
in many cases there would be the same difficulty in
ascertaining whether the defect or advantage, admit-
ting it to be known to the one party, was or was not
disclosed by him to the other. 120.

To draw a distinction which would, perhaps, give
as much effect to the principle of sound morals, as
would be compatible with avoiding frequent and
fruitless litigation, and the encouragement of careless-
ness and negligence, the true course would seem to be,
to hold that Equity will grant relief, if a person does
not disclose any material fact, which, from the nature
of the case, he must have known, and which the other
62 ACTUAL FRAUD.

party could not be expected to discover with the care
ordinarily used in similar transactions. 121.

3. Inade- 3. Mere inadequacy of price, or any other
aire inequality in the bargain, does not consti-
tute by itself a ground to avoid it.’ For the value of
things is always fluctuating, and dependent on num-
berless circumstances. Besides, a man may be induced
by difficulties or exigencies, or for other reasons, to
part with his property’ at a particular time, for less

than that for which another would have sold it.2 And “*’

perhaps the lowness of the price may have been the
only inducement to the purchaser to make the pur-
chase; and he may have simply accepted the pro-
posals of the vendor, instead of being the originator of
the transaction, or of being actively concerned in ne-
gotiating it, like a man whose design is to gain a fraud-
ulent advantage over another. 122.

Still, however, there may be such an unconscion-
ableness or inadequacy in the bargain, as to shock the
conscience, and amount to conclusive evidence of im-
position or some undue influence; and in such a case,
Courts of Equity will interfere on the ground of fraud.
And where there are other ingredients of a suspicious
nature, gross inadequacy must furnish the most vehe-
ment presumption of fraud.* As, if proper time for

1 St. 3 244; Abbott v. Sworder, 4 De G. & S. 448; Harrison o.
Guest, 6 D. M. & G. 424.

1 St. 2 546.

5 St. @ 246, see remarks of Lord Cranworth, C., in Harrison v.
Guest, 6 D. M. & G. 424.+

 

* Erwin v. Parham, 12 How. Sup. Ct. 197.
7 Wright », Wilson, 2 Yerger, 294,
ACTUAL FRAUD. 63

deliberation is not allowed the party injured ; if he is
importunately pressed ; if those in whom he placed confi-
dence make use of strong persuasion ; if he is suddenly
drawn into an act, without being fully aware of the
consequences ; if he is not permitted to consult disin-
terested friends or counsel, before he is called upon to
act, in circumstances of sudden emergency or unex-
pected right and acquisition ; if he is an illiterate per-
son, and advantage has been taken of his necessities ;
‘or if he is a person of weak understanding. But
Equity will not relieve where the parties cannot, be
placed in status quo. Such relief, for instance, will
not be given in the case of marriage settlements; in-
asmuch as the Court cannot unmarry the parties.? 123,
Where a purchase is set aside for inadequacy of
consideration, the conveyance will be ordered to stand
as a security for what has been advanced.? 124.
Deeds of the nature of family arrangements are
exempt from the rules as to the adequacy of the con-
1 St. 3 251; Cockell v. Taylor, 15 Beav. 103, 115; Longmate ».
Ledger, 2 Gif. 157; Clark v. Malpas, 31 Beav. 80; 4D. F. & J.
401; Baker v. Monk, 33 Beav. 419.* .
2 St. g 250.

3 Longmate v. Ledger, 2 Gif. 157; Douglas v. Culverwell, 3
Gif. 251; Baker v. Monk, 33 Beay. 419.

 

* But slight circumstances will be sufficient to overturn pre-
sumption of frauds. Bigelow on Fraud, 280. It was held in
Hallenbeck v. Dewitt, 2 Johns. 404, that proof that the grantor in
a deed was a very ignorant and illiterate man, and could not read
writing, and that the deed was not read to him, is not sufficient to
avoid the deed, unless he requested that it be read to him. See
Jackson v. Croy, 12 Johns. 427.
64 ACTUAL FRAUD.

sideration applicable to other deeds ; the consideration
in such cases being compounded partly of*value and
partly of natural affection; and it is not necessary
that there should be any rights in dispute, in order to
uphold them.’ 125.

4. Where gifts and legaéies are bestowed
eoaenad on persons, on condition that they shall
oars marry with the consent of patents, guar-
dians or other confidential persons, Courts of Equity

will not suffer the manifest object of the condition to ‘¢’

be defeated by the fraudulent, corrupt, or unconscien-
tious refusal of the parties whose consent is required
to the marriage.’? 126.
II. There are other frauds which receive
II. Second . . . .
class of ac- that denomination mainly or in a great
tual frauds, . .
measure from the consideration of the pecu-
liar condition of the injured parties. 127.
With regard to these:
(nae 1, In the case of contracts or other acts,
sons ofun- however solemn, of persons who are idiots,
mane, lunatics, or otherwise of- unsound mind,
wherever, from the nature of the transaction, there is
not evidence of entire good faith, or it is not seen to
be just in itself or for the benefit of those persons,
Courts of Equity will set it aside, or make it subser-
vient to their just rights and interests. But where
1 Persee v. Persee, 7 Cl. & Fin. 279; Williams v. Williams, 2
Dr. & Sm. 378; L. R. 2 Ch. Ap. 294. As to deeds of this nature,
see also Stapilton ». Stapilton, 2 Lead. Cas. Eq., 2d ed. 684, et seq. ;
Dimsdale v, Dimsdale, 3 Drew, 556, 569, 571; Greenwood ».

Greenwood, 2 D. J. & S. 28.
2 St. 2 257.
ACTUAL FRAUD. 65

there is entire good faith, and the contract or other act
is for the benefit of such persons, as to provide them
with necessaries, there Courts of Equity will uphold
it, as well as Courts of Law.! 128.

2. If a person, at the time of entering ;
into a contract or doing an act, was so ex- toxieatel
cessively drunk as to be deprived of the use” ””
of his understanding; or if there was any contrivance
or management to lead him to drink, or some unfair
advantage taken of his intoxication, Courts of Equity
will not lend their assistance to the person who ob-
tained an agreement or deed from him, when so in-
toxicated, but will assist him in getting rid of it, on
account of the fraud of the other party in obtaining

.such agreement or deed from a person in such a state
or by such means.” 129.

3. The contracts and other acts of per- 5 on per-
sons who are of weak understanding will be Sonsotweak
held void in Equity, if the nature of such '"*
contracts or other acts justifies the conclusion that the
party has been imposed: on, circumvented, or over-
reached by cunning, artifice, or undue influence.’ But to
constitute undue influence, there must be either fraud
or coercion by fear; and the burden of proving that
the will of a person of sound mind was executed under
undue influence is on the party who alleges it! 130.

1 St. @ 227-9; Manby v. Bewicke, 3 K. & J. 342.

2 See St. ¢ 230-2.

2 See St. 3 234-8; Longmate v. Ledger, 2 Gif. 157; Nottidge v.

Prince, 2 Gif. 246.
‘ Boyse v. Rossborough, 6 H. L. Cas. 2, 33, 34.

6
66 ACTUAL FRAUD.

é Ra pee 4, Where a party is not a free agent, and
sons who, is not equal to protect himself, a Court of
sees) Equity will protect him.(a) Hence Equity
will relieve against acts done under duress, or
under the influence of threats or of real or im-
frig hae aginary terrors, calculated to deprive a per-
duress,or son of free agency.! And it watches with
in fear .

’ the utmost jealousy all contracts made by a
person while under imprisonment; and if there is the
slightest ground to suspect oppression or imposition,
it will set the contract aside. And, in like manner,
ne circumstances of extreme necessity and dis-
ae tress may so entirely overpower free agency,

as to justify the Court in setting aside a con-
tract on account of some oppression or fraudulent ad-
vantage attendant on it.’ 131.
5. On in- 5. Infants may, even at Law, bind them-
ean selves in some cases, by contracts for neces-
saries suitable to their degree and quality, or by acts
which the Law requires them to do. But in. general,
where a contract may be either for the benefit or to
the prejudice of an infant, he may avoid it, as well at
' St. 2 239; Boyse v. Rossborough, 6 H. L. Cas. 2, 49; Wil-

liams v. Bayley, L. R. 1 H. L. 200.*
2 St. 3 239.

 

(a) The writer submits that this principle ought, in accordance
with reason and justice, to have been applied to the case of Re
Metcalfe’s Trusts, 2 D. J. & 8. 122, the case of a professed nun.

* Equity follows the law as to what is duress, Miller v. Miller,
62 Penn. St. 486. Equity will relieve by ordinary cancellation
of instrument procured by duress, Harshaw v. Dobson, 64 N. C.
38; Thurman v. Burt, 53 Il. 129.
ACTUAL FRAUD. 67

Law as in Equity. Where it can never be for his
benefit it is utterly void.(a) 132.

By the statutes 37 and 38 Vict. c. 62,8. 1, itis enacted,
that “all contracts, whether by apaath by, or by simple
contract, henceforth entered into by infants for the re-
payment of money lent, or to be lent, or for goods
supplied, or to be supplied (other than contracts for
necessaries), and all accounts stated with infants, shall
be absolutely void. Provided always, that this enact-
ment 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.” 132a.

It may here be observed that when one of

k Case where
two innocent persons must suffer by the oneoftwo.

fraud of a third person, that person shall be sersons ;

‘4 must suffer.
the sufferer, who by his conduct, however
innocently, put it in the power of the third person to

commit the fraud. 133.

1 Adsetis v. Hives, 33 Beav. 52; Hunter v. Walters, L. R. 11
Eq. 292.*

 

(a) Smith’s Manual of Common Law, Am. ed. 59, 60; St. ¢
240, 241.

* The rule is well settled that when one of two innocent par-
ties must suffer loss by the default or fraud of a third the loss
must fall upon him who first gave the confidence, or whose act
misled the other. Chitty on Contracts, 763; Rost v. French, 13
Wend. 573; Gill v. Schley, 2 Md. Ch. D. 281; Bigelow v. Comegys,
5 O. S. RB. 256; Licbarrow v. Mason, 2 T. R. 70.
68 CONSTRUCTIVE FRAUD.

CHAPTER IV.
OF CONSTRUCTIVE FRAUD.

ConstTRUCTIVE frauds are acts, statements,
or omissions, which operate as virtual frauds,
on individuals, or, if generally permitted, would be
prejudicial to the public welfare, and are not clearly
resolvable into mere accident or mistake, and yet may
have been unconnected with any selfish or evil design,
or may amount, in the opinion of the person charge-
able therewith, to nothing more than what is justifi-
able or allowable.* 134.

Definition.

 

* Jn the class of cases considered in the preceding chapter
under the head of actual fraud it is necessary for the party alleg-
ing the fraud to support the charge by express evidence. In con-
sidering the cases of constructive fraud, it will be seen that, upon
the appearance of certain relations between the parties, termed
“relations of confidence,” the law raises a presumption that the
transaction complained of was effected by fraud or undue influ-
ence by the opposite party, who holds a position affording pecu-
liar opportunities for taking advantage, and the law requires the
party in the superior position to show that his action has been
honest; and raises a presumption against a party who sustains a
confidential relation in respect of property, pecuniary interest, or
bodily custody of another, in any transaction having relation
thereto, a presumption that the party in the inferior position has
been affected by undue and unlawful means. See Bigelow on
Fraud, pp. 190, et seg.
CONSTRUCTIVE FRAUD. 69

The cases which will be noticed in the
t chapter may be arranged in four ofconstiuce
eerie P y 8 : tive frauds.

I. Relief is granted, on the ground of con-
structive fraud upon public policy, against an paliie
agreements, provisions, and transactions, ee
which, although they may not operate as frauds upon
individuals, would, if generally permitted, be preju-
dicial to the welfare of the community. 135. Thus,

1. Marriage brokage contracts, which are , ieardiage
agreements whereby a person engages to give brokage
another a remuneration, if he will negotiate
a marriage for him, are void, as tending to introduce
matches: which are ill-advised, and not based on
mutual affection, and therefore against public policy.
And they are so utterly void, that they are deemed
incapable of confirmation ; and money paid under them.
may be recovered back again, in a Court of Equity,
whether the marriage is an equal or an unequal one.’
136.

2. The same rules are applied to‘bonds , donee
and other agreements entered into as a re- Hience tes,
ward for using influence over another, to in- ‘°"*
duce him to make a will for the benefit of the obligor ;”
for such contracts encourage a spirit of artifice and
scheming most prejudicial to the moral tone of those

1 St. 2 260-3; 2 Lead. Cas. Eq., 2d ed. 178, et seg.*
2 St. 3 265..

 

* Boynton v. Hubbard, 7 Mass. 112.
70 CONSTRUCTIVE FRAUD.

in whom it exists ; and they tend to deceive and in-
jure others. 137.
3. On a similar ground, secret contracts

3. Contracts . :
to facilitate made with parents, or guardians, or other
marriages, . . . .

persons standing in a peculiar relation to one
of the parties, whereby, on a treaty of marriage, they
are to receive remuneration for promoting the marriage
or giving their consent to it, are held void.' 138.
4 Contracts _ 4. On the other hand, a contract is void,
alttons fn if it is expressly in restraint of marriage
maareage of generally, or if it is so restricted that it is
Vani" probable that it may virtually operate in
maecd restraint of marriage generally;? as, that a
a woman shall not marry a man who has not
an estate of £500 a year,® or shall not marry till fifty
years of age, or shall. not marry any person residing in
.the same town, or any person who is a clergyman, a
physician, or a lawyer, or any person except of a par-
ticular trade or occupation.(a) 139.

A contract or condition imposed on a married
woman to cease to reside at a place where her husband
then resides, is bad. 140.

1 St. @ 266, 267; 2 Lead. Cas. Eq., 2d ed. 178, et seg.

* See St. 3 274, 276-283; Scott v. Tyler, 2 Lead. Cas. Eq., 2d
ed. 105, 198, et seg.

3 St. 2 280. 4 St. 2 283.

5 Wilkinson v. Wilkinson, L. R. 12 Eq. 604.

 

(a) As to conditions, conditional limitations, and special limi-
tations in restraint of marriage, see the writer’s “ Compendium of
the Law of Property,” 5th ed., par. 198-228; 2 Lead. Cas. Eq., 2d
ed. 178, ef seg.
CONSTRUCTIVE FRAUD. 71

5. So, contracts and conditions in general
. . 5. Contracts
restraint of trade, or beyond what is reason- gr cons |
ably necessary for the protection of the party restraint of
. 7 "i . rade,

seeking protection, are void, as tending to
discourage industry, enterprise, and just competition.
But a person may be restrained from carrying on trade
in or within a certain distance from a particular place,
or with particular persons, or for a reasonable limited
time. Anda person may lawfully sell a secret in his
trade or business, and restrict himself from using the
secret.’ 141,

6. Where, pending a bill in Parliament, ¢ praua in
an agreement is entered into to produce a’ [ejtiontos
false impression, or to mislead or suppress “#™°"*
inquiry, or to withdraw public opposition thereto, it
will be held void as a fraud upon Parliament, as well
as upon the public at large.’ 142.

7. Contracts for the buying, selling, or

2 é ‘ 7. Contracts
procuring of public offices are void, as tend- for public
ing to introduce into public offices persons

1 St. @ 292; Benwell v. Inns, 24 Beav. 307; Harms v. Parsons,
32 Beay. 328; Catt v. Tourle, L. R. 4 Ch. Ap. 654; Leather Cloth
Co. v. Lorsont, L. R. 9 Eq. 345; Allsopp v. Wheatcroft, L. R. 15
Eq. 59.*

2 St. 8 293a.t

 

* Peabody v. Norfolk, 98 Mass. 452.

+ So in America a contract to procure the passage of an Act of
the Legislature, by any sinister means, or by using personal influ-
ence with the members, is void, as being inconsistent with public
policy and the integrity of our political institutions. St. Eq. Jur.
¢ 293b; Marshall v. Balto. & Ohio R. R., 16 How. Sup. Ct. 314;
Mills v, Mills, 40 N. Y. 543 Frost ». Belmont, 6 Allen, 152. But
sée algo Trist v. Childs, 21 Wall. 441. oo“.
72 CONSTRUCTIVE FRAUD.

who are unfit for them in respect of character and
other qualifications... 143.
8. So are agreements for the suppres-

8. Suppres- ste . a
sion of sion of criminal prosecutions,’ as tending to
pmveed: weaken the beneficial preventive influence of

the Law, by diminishing the certainty of
punishment. 144.
+ ee 9. So are contracts which have a tendency
Pory ang. to encourage champerty,’ and agreements,
siderations. bonds, and securities founded on corrupt
considerations, that is, on the commission of what is
contrary to the moral or municipal Law, or on the
evasion thereof. And where contracts are intended to
carry out an immoral purpose (as in the case of a house
let for a brothel), even though that purpose do not ap-
pear on the face of the instrument, none of the stipu-
lations comprised therein will be enforced.’ 145.
Distinction Wherever any contract or conveyance is

between’ _ void, either by a positive Law or upon prin-

voidable

innae ciples of public policy, it is deemed incapable
eae cane of confirmation; it being a maxim, Quod ab
Annation. initio non valet, in tractu temporis non con-
valescit. But where it is merely voidable, or turns
upon circumstances of undue advantage, surprise, or
imposition, there it is valid until rescinded, and if it is
deliberately and upon full examination confirmed by
the parties, it will remain valid.6 146.

1 St. 3 295. ® St. ¢ 294.
5 St. ¢ 294; Reynell ». Sprye, 1 D. M. & G. 660.
4 St. ¢ 294-7. 5 Smith v. White, L. R. 1 Eq. 626.

® St. 2 306. See Reese River Silver ees Co. v. Smith, L. R.
4H. L, 64.
CONSTRUCTIVE FRAUD. 73

And where a party to a deed acts upon it in part,
that confirms it altogether, in the absence of evidence
of a contrary intent.! 147.

TI. With regard to transactions inter 1 pangs

% . in the case
vivos, where a reasonable confidence is re- grees

i ‘ . in the confi-
posed in another person, or a peculiar in- in the cons-

fluence is possessed by him in consequence ‘so
of standing in a confidential relation, and he makes
use of that confidence or that influence to obtain
an advantage to himself at the expense of the party
confiding in him or under his influence, he will not
be permitted to retain any such advantage, how-
ever unimpeachable the transaction would have been
if no such confidence had been reposed, or no such con-
fidential relation had existed.* But it has been held
that this does not apply to a devise or bequest. To
set aside a testamentary disposition on account of un-
due influence, it must amount to this,—that the testa-
tor was not a free agent.? 148.

1 Jarratt v. Aldam, L. R. 9 Eq. 463; Davies v. Davies, L. R.
9 Eq. 468.

* Huguenin v. Baseley, 2 Lead. Cas. Eq., 2d ed. 462, et seg. ;
Sharp v. Leach, 31 Beay. 491; Broun v. Kennedy, 33 Beav. 133;
see also Rhodes v. Bate, 4 Gif. 670; L. R., 1 Ch. Ap. 252; Tate v.
Williamson, L. R. 1 Eq. 528; 2 Ch. Ap. 55; Moxon », Payne, L.
R. 8 Ch. Ap. 881.*

3 Parfitt v. Lawless, L. R. 2 Prob. 462.

 

* Adams’s Eq. 183, et seg., and notes; Hill on Trustees, 4th Am.
ed. 243-256.
74 CONSTRUCTIVE FRAUD.

1. Contracts and conveyances whereby
ono benefits are secured by children to their
toro puentis parents or to persons who stand in loco
having in parentis, or dispositions made by young per-

"sons in favor of their relatives who have an
influence over them, if not entered into with scru-
pulous good faith and reasonable, under the cireum-
stances, will be set aside, unless third persons have ac-
quired-an interest under them.’ In such cases, it must
be proved, first, that the deed was the real and actual
deed of the child or young person, and was intended
by him to have the operation it has; and: secondly,
that such intention was fairly produced. And where
a child, recently after attaining majority, makes over
property to the father, without consideration, or for an
inadequate consideration, Equity will require the fa-
ther to be able to show that the child was really a free
agent and had adequate and independent advice.’
And if an estate held in trust for a father for life, the

1 St. @ 309; Hoghton v. Hoghton, 15 Beav. 278; Espey v. Lake,
10 Hare, 260; Wright v. Vanderplank, 2 K.& J.1; 8 D.M. &
G. 133; Dimsdale v. Dimsdale, 3 Drew. 556, 558, 577; Baker v.
Bradley, 7 D. M. & G. 597, 620; Potts ». Surr, 34 Beav. 548;
Berdoe v. Dawson, 34 Beav. 603; Sercombe v. Sanders, 34 Beav.
382; Chambers v. Crabbe, 34 Beav. 457; Turner ». Collins, L. R.
7 Ch. Ap. 329; Kempson v. Ashbee, L. R. 10 Ch. Ap. 15.*

? Savery v. King, 5 H. L. Cas. 627, 655; Bury 2. Oppenheim,
26 Beav. 594; Davies v. Davies, 4 Gif. 417.+

 

* Taylor v. Taylor, 8 How. Sup. Ct. 201; Caspell v. Dubois, 4
Barb, 393; see also Jenkins v. Pye, 12 Peters, 253, 254.
+ Haight v. Moore, 37 N. Y. Sup. Ct. 161.
CONSTRUCTIVE FRAUD. 75

remainder to his son in fee, is sold by the father and
son immediately on the son coming of age, and the
whole purchase-money is paid to the father, there, if
the assistance of the Court is required by the purchaser
to complete the transaction, its straightforwardness
must be proved.’ 149.

If a person seeking to impugn such transactions is
not reasonably prompt in so doing, after the influence
has ceased, no relief will be given, unless there is ac- -
tual fraud.? 150.

2. During the existence of guardianship,
the relative situation of the parties occasions
a general inability to deal with each other. And’
Courts of «Equity will not permit transactions between
guardians and wards to stand, even when they have
occurred after the minority has ceased, if the interme-
diate period is short; especially if all the duties at-
tached to the office have not ceased, or if the estate
still remains in some sort under the control of the
guardian; unless the circumstances demonstrate the
fullest deliberation on the part of the ward, and the
most absolute good faith on the part of the guardian.’
161.

But when the guardianship has entirely ceased, and
a fair and full settlement of all transactions growing
out of it has been made, and a sufficient time has in-
tervened to allow the ward to feel completely inde-

2. Guardian.

' Hannah v. Hodgson, 30 Beav. 19.

2 Turner v. Collins, L. R.7 Ch. Ap. 829; Kempson v. Ashbee,
L. R. 10 Ch. Ap. 15.

3 St. 2 317-320; Wright ». Vanderplank, 2 K. & J. 1.
76 CONSTRUCTIVE FRAUD.

pendent of the guardian, there is then no objection
even to a bounty being conferred upon the latter.’ 152.
3. The same principles are applied to per-
guardians, SONS standing in the relation of quasi guar-
ministers” dians, or confidential advisers, or ministers
of religion. a i 4 .
of religion,’ and to every case where influ-
ence is acquired and abused, where confidence is re-
posed and betrayed.2 153.

4, A solicitor is not incapable of contract-
ing with his client; but as the relation must
give rise to great confidence in the solicitor, or to very
strong influence over the client, the relation must be
dissolved before the contract, or the whole onus of
proving the fairness and propriety of the transaction
will be thrown on the solicitor, or he must show that
the client had sufficient advice and assistance to relieve
him from the pressure arising from the relation of
solicitor and client, and that he has taken no advan-
tage of his professional position, but that he has done
as much to protect the client’s interest as he would
have done in the case of the client dealing with a
stranger.’ And a solicitor who is an agent for a sale

4. Solicitors.

1 St. 3 320.

? Nottidge v. Prince, 2 Gif. 246.

5 Smith v. Kay, 7 H. L. Cas. 760, 771, 778, 779; Broun v. Ken-
nedy, 33 Beay. 133; Graham v. Johnson, L. R. 8 Eq. 36; St. 2
319.*

4 Sugd. Concise View, 548; St. 2 310-313; Holman »v. Loynes,
4D. M.& G. 270; Tomson v, Judge, 3 Drew. 306; Savery ».
King, 5 H. L. Cas. 627,655, 656; Waters ». Thorn, 22 Beav. 547;

 

* Adams’s Eq. [184], [185].
CONSTRUCTIVE FRAUD. . 77

cannot become the purchaser, without fully explaining
to the parties interested all the circumstances of the
sale and of the value of the property; because his
duty and his interest are in conflict.t And if a solici-
tor can show that he is entitled to purchase, yet if, in-
stead of openly purchasing, he purchases in the name
of a trustee or agent, without disclosing the fact, no
such purchase can stand.? 154.

Asa general rule, a solicitor shall not accept a gift
or in any way whatever, in respect of the subject of
any transaction between him and his client, make a
gain to himself at the expense of his client, beyond
the amount of the just and fair professional remunera-
tion to which he is entitled.’ On the above principle,
an agreement on the part of a client to allow a solicitor
a commission of so much per cent. on a fund in Court,
as a remuneration for recovering the fund or employ-
ing another solicitor to recover it, was void, as con-

Spencer v. Topham, Id. 573; Cowdry v. Day, 1 Gif. 316; Gresley
v. Mousley, 1 Gif. 450; 4 D. & J. 78; Pearson v. Benson, 28 Beav.
598; Gibbs v. Daniel, 4 Gif. 1.*

1 In re Bloye’s Trust, 1 Mac. & G. 494, 497.

2 Lewis v. Hillman, 3 H. L. Cas. 630.

3 4 Cruise T. 32, c. 26, 3 35; St. 2 312; Moss v. Bainbrigge, 18
Beav. 478; 6 D. M. & G. 292; Tomson v. Judge, 3 Drew. 306;
Re Holmes’s Estate, 3 Gif. 337; Nanney v. Williams, 22 Beav.
452; Walker v. Smith, 29 Beav. 394; Bank of London ». Tyrrell,
and Tyrrell v. Bank of London, 27 Beav. 273; 10 H. L. Cas. 26;
O’Brien v. Lewis, 4 Gif. 221.

 

* Adams’s Eq. [184], note; Bigelow on Fraud, 207-209, and
case there cited; Stockton v. Ford, 11 How. Sup. Ct. 232-246.

+ Bain v. Brown, 56 N. Y. 285.

t See Perry on Trusts, 3 202, 203, and cases cited..
78 zs CONSTRUCTIVE FRAUD:

trary to the policy of the Law.’ And an agreement
by a client to allow his solicitor interest on his bill of
costs, could not be maintained—at all events, not un-
less the solicitor informed the client that the Law
allowed no such charge, or the client acquiesced, after
the termination of the relation, and after proper advice
upon the subject.’ But a deed executed by a client in
favor of his solicitor, if voidable, may be confirmed by
the will of the client.2 155.

An agreement between a solicitor and client that a
gross sum shall be paid for costs for business already
done is valid. But an agreement to pay a gross sum
for business hereafter to be done was void. And if a
solicitor takes a ‘gross sum for his services without an
account, he should preserve evidence of the fairness of
the agreement, and that the client had good advice, or
had full opportunity and capacity to judge for himself.*
156.

But these paragraphs must be read subject to the
stat. 33 and 34 Vict. c. 28. 157.

If a solicitor and mortgagee obtains a conveyance
from the mortgagor, and the mortgagor is a man in
humble circumstances without any legal advice, the
onus of justifying the transaction and showing that it
was a fair and right transaction is thrown upon the
mortgagee.” 158.

! Strange v. Brennan, 15 Sim. 346.

2 Lyddon v. Moss, 4D. & J. 104.

* Stump v. Gaby, 2 D. M. & G. 623. But see Waters », Thorn,
22 Beav. 547, 559.

4 In re Newman, 30 Beav. 196; Morgan v. Higgins, 1 Gif. 277.
5 Prees v. Coke, L. R. 6 Ch. Ap. 645, 649.
CONSTRUCTIVE FRAUD. . 79

5. Similar principles apply to a medical
adviser and his patient.!. 159.

6. An agent will not be permitted to reap
any advantage by becoming secret vendor or
purchaser of property which he is authorized to buy
or sell for his principal.’ So that if an agent sells his
own property to his principal as the property of another,
without disclosing the fact, or if an agent purchases
the goods of his principal in another name, however
fair the transaction may be, the principal may either
repudiate it, or may claim any profit made by the
agent, in order to deter agents from placing themselves
ina state of temptation to benefit themselves rather
than their employers. And if an agent employed to
purchase for another purchases for himself, he will
be considered as the trustee of- his employer, at the
option of the latter? And in all transactions directly
and openly entered into between principal and agent,
the utmost good faith is required; so that the agent
must not conceal any facts within his knowledge which
might influence the judgment of his principal as to
the price or value.t 160.

1 St. 2815. 2 St. 2315.

3 St. 3 316, 1211a; Bentley v. Craven, 18 Beav. 75; Bank of
London. v. Tyrrell, 27 Beav. 273; Tyrrell v. Bank of London, 10
H. L. Cas. 26; Wentworth v. Lloyd, 32 Beav. 467; Kimber ».

Barber, L. R. 8 Ch. Ap. 56.*
4 St. ¢ 315, 316 a; see Dally ». Wonham, 33 Beav. 154.+

5. Doctor.

6. Agent.

 

* Torry v. Bank of New Orleans, 9 Paige, 649; Dobson v. Racey,
3 Sandf. 61; Voorhees v. Presbyterian Church, 8 Barb. 136.

+ The principal may at his election deem the bargain made or
act done by his agent valid or not ; the agent himself cannot avoid
it on that ground. Story, Agency, % 210, cases there cited. ;.
80 CONSTRUCTIVE FRAUD.

7. To guard against the danger of any
advantage being taken by a trustee, and to
remove all temptation from him, he is never permitted |
to obtain any profit or advantage to himself in manag-
ing the concerns of his cestui que trust, but whatever
benefits or profits are obtained will belong to the cestui
que trust. And he is not allowed to partake of the
bounty of the party for whom he acts, except under
circumstances which would make the same valid if it
were a case of guardianship.’ A trustee cannot pur-
chase the trust estate from himself or from his co-
trustee. And if a purchase is made of the trust estate-
by the trustee from his cestui que trust, although at a
public auction, unless there has been no fraud, conceal-
ment, or advantage on the part of the trustee, and no
want of protection and security on the part of the ces-
tui que trust, the cestui que trust may require a re-con-
veyance or a re-sale; and, if the re-sale produces more
than the trustee gave, the cestui que trust may repudi-
ate the first sale, and adopt the re-sale; if less, he may
affirm the first sale? 161.

8. Counse, 8+ In order to prevent the temptation of
aneU Iss availing themselves of information for their

trustees,

and solic: own benefit, and concealing it from those for

bankrupt one
insolvent, Whom they act, the same restriction on the

auctioneers, _ + °
anderedi-' Tight of purchase applies to other persons

tors. . . en . . :
oP standing in similar confidential situations; as

1 St. ¢ 321, 322; see infra, Tit. II, c. VI, div. IV; and c. VII,
div. XII.

2 Sugd. V. & P., 14th ed. 69, 691-4; Lewin on Trusts, 4th ed.
335-342; St. ¢ 322; 2 Sp. 948, 944; Smedley v. Varley, 23 Beay.
358 ; Denton v. Donner, Id. 285; 1 Lead. Cas: Eq., 4th Am: ed:
154,165, * wR, a

7. Trustees.
CONSTRUCTIVE FRAUD. 81

to counsel, agents, trustees, and solicitors of a bank-
rupt’s or insolvent’s estate, auctioneers, and creditors,
‘who have been consulted as to the sale? 162.

9. And it may be laid down as a general

A ae 9, Executors

rule with regard to executors or administra- or adlieigiie-
tors, that they will not be permitted under
any circumstances to derive a benefit from the manner
in which they transact the business of their office.’
163.

10. Entire good faith is required between ,, |,

. . Debtor,
debtor and creditor and sureties. And if a eee
creditor does any act affecting the surety, or
if he omits to do any act of duty which he is required
to do by the surety, or is bound to do, and that act or
omission ‘may prove injurious to the surety, or if a
creditor enters into any stipulations with the debtor,
unknown to the surety, and inconsistent with the terms
of the original contract, the surety may set up such
contract as a defence to any proceeding against him, in
a Court of Law or Equity. So that if a creditor stipu-
lates with his debtor, in a binding manner, upon a suf-
ficient consideration, to give further time for payment,
without the consent of the surety, the latter will be
thereby discharged, if the arrangement might be inju-

1 St. ¢ 322; 2 Sp. 943; Pooley v. Quilter, 2 D. & J. 327.*
2 St. 3 322 ; Robinson v. Pett, 2 Lead. Cas. Eq., 4th Am. ed. 238,
241, 254, et sed.

 

* Cram v. Mitchell, 1 Sandf. Ch. 257; Farnam v. Brooks, 9
Pick. 212.
82 CONSTRUCTIVE’ FRAUD.

rious to him.’ But it has been held (improperly, as
the writer with great deference submits), that a cove-
nant not to sue the debtor, or a deed of release only
amounting to such a covenant, and reserving the credi-
tor’s rights against the surety, does not discharge the
surety.2 And a conditional agreement for further time
does not discharge the surety, when, from the agree-
ment not being performed, the agreement does not
become binding.’ It has been repeatedly held (but
contrary to principle, as the writer submits), that the
giving of time does not discharge the surety, if it is
agreed between the creditor and the principal debtor,
when further time is given, that the surety shall not
be thereby discharged.‘ Mere delay on the part of the
creditor, at least if some other Equity does not inter-
vene, unaccompanied with any valid contract for such
delay, will not amount to laches, so as to discharge the
surety.’ But the sureties are entitled to come into a

1 St. ¢ 324-6, 883, 883a, note; Rees v. Berrington, 2 Lead. Cas.
Fq., 4th Am. ed. 974, 994, et seg. ; Tucker v. Laing, 2 K. & J. 745;
Blest v. Brown, 8 Gif. 450; 4D. F. & J. 367; Strange v. Fooks, 4
Gif. 408; Oriental Financial Corporation v. Overend & Co., L. BR.
7 Ch. Ap. 142; Wilson v. Lloyd, L. R. 16 Eq. 60.*

? Green v. Wynn, L. R. 4 Ch. Ap. 204.

+ St. 2 883, note.

4 Webb v. Hewitt, 3 K. & J. 442; Wyke v. Rogers, 1 D. M. &
G. 408; Lord Hatherley, C., in Oriental Financial Corporation v.

Overend & Co., L. R. 7 Ch. Ap. 150.
5 St. @ 326; Tucker v. Laing, 2 K. & J. 745.

 

* United States v. Howell, 4 Wash. C. C. 620-623; Harris v.
Brooks, 21 Pick. 195-197; 2 Am. Lead. Cas. (5th ed.) 389, 412,
417, 466,
CONSTRUCTIVE’ FRAUD: 83

Court of Equity, after a debt has become due, to com-
pel the debtor, or any one who has given them an in-
demnity, to exonerate them from their liability by
paying the debt... 164.

III. Relief will be granted in favor of s1 peands
those classes of persons, of whom, from their incase
peculiar circumstances, irrespective of any peculiarly
mental incapacity, undue advantage may ™posed on.
readily be taken, even where the transaction could not
be impeached if entered into by parties otherwise sit-
uated.’ 165. Thus,

1. Bargains with expectant heirs will be ;
set aside, unless the purchaser, on whom the «ith ‘expee=

: taut heirs.
onus probandi rests, can show that a full
consideration was paid, or that the bargain was fully
made known to and approved by the person to whose
estate the expectant heir hoped to succeed ; because it
is the policy of Equity to prevent designing men from
taking advantage of persons whose interests are future,
and therefore apt to be underestimated or improvi-

' St. 2 327, 369; Wooldridge v. Norris, L. R. 6 Eq. 410; and
see judgment in Green v. Wynn, L. R. 4 Ch. Ap. 207.

? Earl of Chesterfield v. Janssen, 1 Lead. Cas. Eq., 2d ed. 428,
et seq.*

 

* A conveyance or contract will be set aside, wherever it has
been obtained through undue influence over a person greatly under
the power of another, if there is inadequacy of price, or clear
ground of inference that a confidence reposed has been abused, or
advantage has been taken of incompetency, weakness of under-
standing, or clouded or enfeebled faculties. Wheeler v. Smith, et
al.,9 How. Sup. Ct. 55, 82; Whelan v. Whelan, 3 Cowen, 539,
572. See also Taylor v. Taylor et al., 8 How. Sup. Ct. 183.
84 CONSTRUCTIVE FRAUD.

dently disposed of, especially by the necessitous, the
thoughtless, and the young; and it is also the object of
Equity to discourage transactions by which the inten-
tions of the ancestor or other person from whom the
property was expected are disappointed, and, by cut-
ting off relief at the hands of strangers, to oblige the
heir to disclose his difficulties at home.’ 166.
"Tf the heir, after being relieved from his necessities,
absolutely and deliberately, and on full information as
to his right of setting aside the bargain, confirms the
transaction, or does any act by which the rights or
property of the other party are injuriously affected, he
will not be allowed to repudiate the bargain.” 167.
The repeal of the usury laws has not altered the
rules of the Court as to dealings with expectants.? 168.
Tae The same relief was afforded to remainder-
mainder. men and reversioners, unless the purchaser
versioners. could show that a full consideration was
paid, or that the bargain was fully made known to and
approved by their parents or other persons standing in
loco parentis, who had the means of obviating the ne-
cessity of such an alienation of their future interests.‘

1 See St. 3 334-340, 343.

2 St. ¢ 345, 346.

3 Croft ». Graham, 2 D. J. & 8.155; Miller v. Cook, L. R. 10
Eq. 641, 646; Tyler v. Yates, L. R. 11 Eq. 265; 6 Ch. Ap. 665;
Earl of Aylesford v. Morris, L. R. 8 Ch. 490.

4 St. 2 334-340; Salter v. Bradshaw, 26 Beav. 161; St. Albyn 7.
Harding, 27 Beav. 11; Talbot v. Staniforth, 1 Johns. & H. 484;
Foster v. Roberts, 29 Beav. 467; Jones v. Ricketts, 31 Beav. 130;
Sharp v. Leach, 31 Beav. 491; Nesbitt v. Berridge, 32 Beav. 282;
CONSTRUCTIVE FRAUD. 85

This doctrine applied to a charge as well as a sale, and
notwithstanding the expectant was of mature age, and
fully understood the nature of the transaction. And
it was not necessary to show that he was in pecuniary
distress ; for that would be assumed.’ 169.

By the Stat. 31 Vict. c. 4, it is enacted that “no
purchase made bond fide and without fraud or unfair
dealing, of any reversionary interest in real or personal
estate shall hereafter be opened or set aside merely on
the ground of undervalue” (s. 1); and that “the word
‘purchase’ in this Act shall include every kind of con-
tract, conveyance, or assignment under or by which
any beneficial interest in any kind of property may
be acquired” (s. 2); and that “this Act shall come
into operation on the first day of January, One thou-
sand eight hundred and sixty-eight, and shall not
apply to any purchase concerning which any suit shall
be then depending ”(s. 3). 170.

This Act leaves undervalue still a material element
in cases in which it is not the sole equitable ground
for relief? 171.

Dally v. Wonham, 33 Beav. 154, 162; Perfect v. Lane, 3 D. F. &
J. 369; Beynon v. Cook, L. R. 10 Ch. Ap. 389.*

1 Bromley v. Smith, 26 Beav. 644; Tynte v. Hodge, 2 Hem. &
Mil. 287.+

2 See Miller v. Cook, L. R. 10 Eq. 641; Tyler v. Yates, L. R.
11 Eq. 265.

3 Earl of mpretard: v. Morris, L. R. 8 Ch. Ap. 484, 490.

 

* See also Jenkins v. Stetson, 9 Allen, 128.
+ Bigelow on Frauds, 276.
86 CONSTRUCTIVE FRAUD.

2 Postenbit. 2+ On similar principles post-obit bonds
pends si and other securities of the like nature are
oer set aside, when made by heirs and other
expectants. A post-obit bond is an agreement made
on the receipt of the money by the obligor, to pay a
sum exceeding the sum so received and the ordinary
interest thereof, on the death of the person upon whose
decease he expects to become entitled to some prop-
erty... Even the sale of a post-obit bond at a public
auction will not give it validity, unless the sale was
free, fair, and with the usual precautions and adver-
tisements.” If, however, these contracts are perfectly
fair in other respects relief will not be granted, except
upon the terms of paying that to which the lender is
equitably entitled? 172.

3 Salento 3+ Where tradesmen and others have sold
seeoan. goods to young and expectant heirs, at ex-
‘autpries. Ovbitant prices, and under circumstances in-
dicative of imposition, or of undue influence, or of an
intention to connive at profuse expenditure, unknown
to their parents or other persons standing in loco
parentis, Equity has cut down the claim to a just
amount. 173.

4. Common 4 Common sailors, being so extremely
sailors. generous, credulous, and improvident a class
of men that they require guardianship all their lives,
Equity treats them in the same light as young ex-
pectant heirs; and relief is generally afforded against
contracts respecting their prize-money or wages, wher-

1 St. 4 342. ? St. 4 347. 3 St. 3 344. St. 4 348.
CONSTRUCTIVE FRAUD. 87

ever any inequality appears in the bargain, or any
undue advantage has been taken.' 174.

5. Where a person, shortly after attaining , Dispo-
his majority, makes a gift, sale or lease, in SU" "2.
favor of a relative, it will be set aside, unless ™/*'#Y-
the grantor or lessor makes it intentionally and de-
liberately, after having had the fullest information on
the subject, and separate, independent, and disinter-
ested advice; even though the terms, in the case of a
sale or lease, were fair, but yet not so advantageous
as might have-been obtained.? 175.

_ IV. Where something is said or done, or jy...
some omission is made which operates as a frandson

individuals
virtual fraud upon an individual, but may i're-pective

ofany confi-

have been nothing more than mere neglect, §Q)a\nty

eculiar hae

unconnected with any selfish or evil design, Pi tik
or may amount, in the opinion of the party, ?°!"'™
to nothing more than justifiable artifice, or to a fair
attempt to obtain a reasonable advantage, or to an al-
lowable act, statement, or omission of some other kind,
relief will be granted on the ground of constructive
fraud. 176. Thus,

1. Where a person by some act, statement, | srctena-
or omission, whether beneficially to himself i8-
or not, knowingly produces a false impression on
another, who is misled and injured thereby ; and such
act, statement, or omission when rightly considered,

1 St. 3 332:
2 Grosvenor v. Sherratt, 28 Beav. 659.*

 

* St. Eq. Jur. 3 337.
88 CONSTRUCTIVE FRAUD.

is contrary to plain moral duty or good faith, but yet
may not have been connected with any. design either to
injure another or to benefit the person who is guilty
thereof, in such case the latter alone, even though an
infant or married woman, shall suffer thereby on the
ground of constructive fraud.’ For instance, where a
person knowing himself to be the owner of property,
permits another to sell it as his own to a third person,
who purchases under the supposition that the vendor
has a good title, the real owner will not be allowed to
assert his title to it.” And where a person aware of
the existence of an instrument under which he might
reasonably have supposed that he took some interest,
neglects to make proper inquiries as to the fact, and
encourages a stranger to deal with another person re-
specting property in which he himself is interested
under such instrument, he will be bound by the trans-
action.2 And where a person becomes a trustee of
money for several creditors, and at the date of the trust
deed he had a charge on the share of one of them, but
it is not mentioned in the deed, he will be postponed
to another person who had a subsequent charge on that
share, and had no notice of the trustee’s charge, but
gave him due notice of his own charge.t And where
a person grants a lease on the security of which money
is lent, and the lessor, before the lease was granted,
2 See St. 2 384-390; 2 Sp. 575, 576.

* St. ¢ 385, 389. 5 See St. 3 387.*
4 Commissioners of Public Works v. Harby, 23 Beay. 508.’

 

* Wendell v. Van Rensselaer, 1 John’s Ch. 354.
CONSTRUCTIVE FRAUD. 89

was asked by the lender whether he intended to grant
such lease, and he answered in the affirmative, forget-
ting that he had previously granted another lease to the
same person, who had assigned it for value, the lessor
was held liable for the loss arising from the invalidity
of the security.?. 177.

2. Upon sound principle, agreements 4 prands
whereby persons agree not to bid against each 0” auctions.
other at an auction, especially where the sameis directed
or required by Law, are held void. For such agreements
may cause the property to be sold at an under value,
and thereby injure the person interested in the pro-
ceeds of sale; and they have a tendency to prejudice
the character and value of auctions in general.” On
the other hand, if underbidders or puffers are em-
ployed at an auction to enhance the price, and other
bidders are thereby misled, the sale will be void.*(a)
178.

3. As the Statute of Frauds was designed aan
as a protection against fraud, it will never sefentious
be allowed to be set up as a protection and platlite ot
support of fraud.* And hence, where from
any circumstances which may have resulted from fraud,

1 Slim v. Croucher, 1 D. F. & J. 518.

2 See St. ¢ 293; Sugd. V. & P., 13thed. 93. But In re Carew’s
Estate, 26 Beav. 187, and Galton v. Emuss, 1 Coll. 243, such agree-
ments were held to be not illegal. (See Darts. V. & P., 4th ed. 99.)

3 St. 2 293.
4 Lincoln v. Wright, 4 D. & J. 16; Haigh v. Kaye, L. B. 7 Ch,
Ap. 469; Booth v. Turle, L. R. 16 Eq. 182.

 

(a) See stat. 30 and 31 Vict. c. 48, at the end of the book.
8
90 CONSTRUCTIVE FRAUD.

a contract has not been reduced into writing as it ought
to have been, it will be enforced against the party who
is chargeable with the omission, in case he attempts to
shelter himself behind the provisions of the Statute.
179.

4 Clanaes. 4: If clandestine marriage contracts are
vnems,. designed to impose on parents or persons
ee standing in loco parentis or in some other
peculiar relation to the parties, so as to disappoint their
bounty, or to defeat their intentions in the disposition
of their property, such contracts will be set aside, or
the equities will be held the same as if they had not
been entered into.’ 180.

5.Frandson 0" ‘90, Telief will be granted to the injured
marriages. narties, where persons, after doing acts re-
quired to be done on a treaty of marriage, render those
acts virtually unavailing, by entering into other secret
agreements, or derogate from those acts, or otherwise
commit a fraud upon a marriage. As where a parent
declines to consent to a marriage, on account of the in-
tended husband being in debt, and the brother of the
latter gives a bond for the debts, to procure such con-
sent; and the intended husband then gives a secret
counter-bond -to his brother, to indemnify him against
the first bond.* So where a brother, on the marriage
of his sister, let her have a sum of money privately,
that her fortune might appear to be as much as was
insisted on, and the sister gave a bond to the brother
to secure the repayment thereof, the bond was set aside.°

1 See St. 2 330. ? See St. @ 275. 3 See St. 2 268-272.
4 St. 2 269. 5 St. 3270. ‘ oe
CONSTRUCTIVE FRAUD. 91

So where upon a treaty of marriage, a creditor of the
intended husband concealed his own debt, and misrep-
resented to the wife’s father the amount of the hus-
band’s debts, the transaction was. treated as a fraud
upon the marriage, and the creditor was prevented
from enforcing his debt.' And where a father, on the
marriage of his daughter, enters into a covenant, that
on his death he will leave her a full and equal share
of all his personal estate, he cannot afterwards transfer
a portion of his personal property to another child, re-
taining the annual income thereof for his life? 181.
6. Relief will also be granted against acts 5 pranas
secretly done by a woman in contravention eee
of the marital rights, or in disappointment P°'?"s
of the just expectations of her intended husband. As
where a woman, in contemplation of marriage, and
without the privity of her intended husband, makes a
settlement to her separate use, or a conveyance in
favor of persons for whom she is under no moral ob-
“ligation to provide. But a reasonable provision for
her children by a former marriage, under circum-
stances of good faith, is free from objection.’ 182.

1 St. @ 271. 2 St. 2 382.

3 St. 273; 2 Sp. 505; Countess of Strathmore »v. Bowes, 1
Lead. Cas. Eq., 2d ed. 325, ef seq.; Prideaux v. Lonsdale, 4 Gif.
159; 1D. J. & S. 433; Downes v. J ennings, 32 Beav. 290.*

 

* Bigelow on Fraud, 52-55. It has been frequently decided in
this country, that a secret voluntary settlement or conveyance of
her property by a woman, pending a treaty of marriage, and in
contemplation of marriage, without the knowledge of her intended
husband, is fraudulent and void against her husband, as being in
92 CONSTRUCTIVE FRAUD.

a ads 7. In consequence of the stat. 13 Eliz. c.
under the 5, deeds, though good as between the parties
ae and in other respects, are void as against
creditors, when made with an actual intent to defraud
them, even though such deeds be for valuable con-
sideration,’ except as regards a bond fide purchaser
from the debtor, or from an assignee of the debtor,
without notice of the circumstances amounting to such
actual fraud. And if a person makes a conveyance or
assignment of any real or personal property which is
liable to his debts (unless it is to a purchaser for valu-
able consideration who has no notice of a fraudulent
intent), and at the time, or immediately afterwards, he
is indebted to such an amount that he has not ample
means besides that property available to pay the debts,
such conveyance or assignment is void as against those
who were creditors at the time of and subsequent to
the deed, to the extent to which it may be necessary to
deal with the property for their satisfaction.2 A deed,

14 Cruise T. 32, c. 27, 3 4; Shee v. French, 3 Drew. 717;
Bessey v. Windham, 6 Ad. & El. (N. 8.) 166.

? 4 Cruise T. 32, c. 27, 24; Strong v. Strong, 18 Beav. 408; Bott
v. Smith, 21 Beay. 511; Ware v. Gardner, L. R. 7 Eq. 317.

3 See St. 2 352-374, 381; 2 Sp. 887; 4 Cruise T. 32, c. 27, 2
15-17; Coote Mortg., 3d ed. 238; 2 Bl. Com. 441; 1 Pres. Shep. T.
66; Ad. Con., 6th ed. 149-156; Twyne’s Case, 3 Co. 80; Chit. Con.
8th ed. 380, et seg.; Skarf v. Soulby, 1 Mac. & G. 364; Re Ma-
gawley’s Trust,5 De G. & 8. 1; Bott v. Smith, 21 Beav. 511;

 

derogation of his marital rights and just expectations. See“cases
cited in notes of the American Editor, 1 White & Tudor’s Lead.
Cas. Eq.; Countess of Strathmore v. Bowes, 618, 619; Bigelow
on Fraud, 52-55.
CONSTRUCTIVE FRAUD. 93

however, which is apparently voluntary, may be shown
by extrinsic evidence to have been made for valuable
consideration, and may be supported as such against
creditors." And a deed is not necessarily void under
this Act, merely because designed to prefer or defeat a
particular creditor.’ 183.

Barton v. Vanheythuysen, 11 Hare, 126; Dening v. Ware, 22
Beav. 184; Holmes v. Penny, 3 K. & J. 90; Turnley v. Hooper,
3 Sm. & G.349; Darvillev. Terry, 6 Hurl. & Norm. 807; Thomp-
son v. Webster, 4 Drew. 628; 4 D. & J. 600; Acraman v. Corbett,
1 Johns. & Hem. 410; Barling v. Bishopp, 29 Beav. 417; Stokoe
v. Cowan, 29 Beav. 687; Spirett v. Willows, 3 D. J. & S. 298;
Smith v. Cherrill, L. R. 4 Eq. 390; Reese River Silver Mining
Company v. Atwell, L. R. 7 Eq. 347; Freeman v. Pope, L. R. 9
Eq. 206; 5 Ch. Ap. 538 ; Allen v. Bonnett, L. R. 5 Ch. Ap. 577;
Cornish v. Clark, L. R. 14 Eq. 184; Kent v. Riley, L. R. 14 Eq.
190; Taylor v. Coenen, L. R. 1 Ch. D. 636.*

1 Pott v. Todhunter, 2 Coll. 76.

2 Ad. Con., 6th ed. 151; Chit. Con., 8th ed. 383; Alton v. Har-
rison, L. R. 4 Ch. Ap. 622.

 

* The doctrine established in the Supreme Court of the United
States is, that a voluntary conveyance made by a person not in-
debted at the time in favor of his wife or children, cannot be im-
peached by subsequent creditors, upon the mere .ground of its
being voluntary. It must be shown to have been fraudulent or

. made with a view to future debts. Sexton v. Wheaton, 8 Wheaton,
229, 230 ; Hinds, Lessee, v. Longworth, 11 Wheaton, 199; 4 Kent
Com. 464 n. and cases cited. And the mere fact of indebtedness
at the time does not, per se, constitute a substantive ground to
avoid a voluntary conveyance for fraud even in regard to prior
creditors. The question whether fraudulent or not is to be ascer-
tained from all the ‘surrounding circumstances. See also St. Eq.
Jur. 3 362; McLaughlin v. Bank of Potomac, 7 How. Sup. Ct.
220; Re Cornwall, 9 Blatchford, 116; Schouler’s Dom. Rel. 280,
281. 4
94 CONSTRUCTIVE FRAUD.

A man who contemplates going into trade, cannot,
on the eve of doing so, take the bulk of his property
out of the reach of those who may become his credi-
tors in the trading operations. So that a voluntary
settlement, whereby the settlor takes the bulk of his
property out of the reach of his creditors, shortly be-
fore engaging in trade of a hazardous character, may
be set aside in a suit on behalf of creditors who became
such after the settlement.’ 184.
le eaiie 8. If a creditor, who is a party to a com-
oneredtiors. Hosition deed, has, unknown to the other
creditors, oBtained any benefit or security, either from
the debtor or a third person, beyond what the others
have received, or enters into a contract with the debtor
which prevents him from being put into that situation
of freedom from existing demands, which may be con-
sidered as one of the chief inducements to the others
to sign the deed, it is a fraud on the policy of the Law;
and such secret arrangements are entirely void, even
as against the assenting debtor, or his sureties, or his
friends ; and money paid under them may be recovered
back.? 185.

So an agreement between an insolvent debtor and
his assignee, by which the estate of the insolvent is to
be held in trust, to pay certain annuities to the insolv-
ent, and to apply the surplus to the extinction of a
debt to the assignee, will be rescinded, even at the in-
stance of the insolvent himself.* And it was held to

1 Mackay v. Douglass, L, R. 14 Eq. 106.

® See St. 2 378, 379; 2 Sp. 357-860.
3 St. 2 380,
CONSTRUCTIVE FRAUD. 95

be a fraud for a creditor secretly to obtain a larger
dividend than was received by the other creditors,
under the arrangement clause in the Bankrupt Act of
1849 (s. 230); and relief was granted even at the in-
stance of the debtor.’ 186.

9. Where a person takes a mortgage, of 9 sforteage
a conveyance, or a settlement, with notice of oT consty-
the legal or equitable title of other persons Ho"iteof
to the same property, his own title will be ‘’
postponed and made subservient to their title, or to
that of a transferee from them.’ Thus, if a person
takes a mortgage of property, knowing that it was
subject to an equitable mortgage made by deposit of
the title-deeds, the notice of the equitable mortgage
will raise a trust in him to the amount of the equi-
table mortgage. And, on the same principle, if a
mortgagee, when he takes his security from a partner,
knows that the firm are in possession of the-property,
he has constructive notice of the title of the partner-
ship, and his claim must be postponed to that of the
other partner, as regards his share, and his right to be
recouped in respect of partnership debts paid off by

1 Mare v. Sandford, 1 Giff. 288.

2 St. 3 395, 386; Sugd. Concise View, 595-7; Le Neve v. Le
Neve, 2 Lead. Cas. Eiq., 2d ed. 23, e¢ seg.; Atterbury v. Wallis, 8
D. M. & G. 454; Pease v. Jackson, L. R. 3 Ch. Ap. 576; Barnes
v. Wood, L. R. 8 Eq. 424; Maxfield v. Burton, L. R. 17 Eq. 15;
except in cases within the stat. 27 Eliz. c. 4, See par. 193-9, injra.*

5 St. 3 395.

 

* Bigelow on Fraud, 293; Atlantic Bank v. Harris, 118 Mass.
147. a ee :
96 CONSTRUCTIVE FRAUD:

him, whether contracted before or after the mortgage.’
187.

Notice is attended with the same consequence even
where the property lies in a register county. For, the
object of the Registration Acts being only to secure
subsequent purchasers and mortgagees against prior
secret conveyances and incumbrances, if a subsequent
purchaser or mortgagee has notice, at the time of his
purchase or mortgage, of any prior unregistered con-
veyance or mortgage, he will not be permitted to avail
himself of his title against the prior conveyance or
mortgage, any more than he would if the same were
registered.” 188.

Notice may be either actual or constructive, i. e.,
imputed by construction of Law.’ Actual notice, to
constitute a binding notice, at least where it depends
on oral communication only, must be given by a per-
son interested in the property, and in the course of the
treaty.* 189.

As regards constructive notice, whatever is sufficient,
or whatever for the purposes of justice is to be deemed
sufficient, to put any person of ordinary prudence on
inquiry, is constructive notice of everything to which
that inquiry might have led.® And hence a purchaser
who has notice of a tenancy is deemed to have notice

1 Cavander v. Bulteel, L. R. 9 Ch. Ap. 79.

2 St. ¢ 397; 2 Sp. 763. 3 2 Sp. 754, * 2 Sp. 753.

° 2 Sp. 755-760 ; Ogilvie v. Jeaffreson, 2 Gif. 353,378; Leigh ».
Lloyd, 2 D. J. & S. 330; Broadbent ». Barlow, 3 D. F. & J. 570;
Pilcher », Rawlins, L. R. 11 Eq. 58, 7 Ch. Ap. 259; Maxfield 2.
Burton, L. R. 17 Eq. 15; Cavander v. Bulteel, L. R. 9 Ch. Ap. 79.
CONSTRUCTIVE FRAUD. 97

of a lease, if any, and therefore is not entitled to any
compensation on account of it. And, asa general rule, a
purchaser or other person. has constructive notice of
the contents of the instrument under which he claims,
or under which the party with whom he contracts, as
executor or trustee or appointee, derives his power.
Under ordinary circumstances, a man cannot claim.
under a deed or will, and yet repudiate a knowledge
of its contents.’ But the mere registration of a con-
veyance is not deemed constructive notice to subse-
quent purchasers, as to collateral effect; so that the
mere registration of a second mortgage will not pre-
vent a prior mortgagee from tacking a third mortgage,
when he had no actual notice of the existence of the
second mortgage.? To constitute constructive notice, it
is sufficient if it is brought home to the agent, attorney,
or counsel, in the same transaction, or in one immedi-
ately preceding ; unless there is a moral certainty that
he would not have communicated the fact to the prin-
cipal or client,* or he, colluding with the person
who was bound to give notice, concealed the fact.°

1 James v. Lichfield, L. R. 9 Eq. 51.

2 St. 32 400; Pilcher v, Rawlins, L. R. 11 Eq. 53; 7 Ch. Ap.
259.

5 St. 2 401, 402; 2 Sp. 763.

4 St. 2408; 2 Sp. 700, 761; Spaight v. Cowne, 1 Hem. & Mil.
359; Atterbury v. Wallis, 8 D. M. & G. 454; Thompson »v. Cart-
wright, 33 Beav. 178, 185; Rolland v. Hart, L. R. 6 Ch. Ap. 678;
Maxfield v. Burton, L. R. 17 Eq. 15.*

5 Sharpe v. Foy, L. R. 4 Ch. Ap. 35.

 

" * Astor », Wells, 4 Wheat. 466.
9
98 CONSTRUCTIVE FRAUD.

And where the mortgagor has at different times
employed the same solicitor in effecting different
incumbrances upon the same estate, and the incum-
brancers have employed the mortgagor’s solicitor in
the several transactions, each of the puisne incum-
brancers is affected with notice of the prior incum-
brances.' But the circumstance of only one solicitor
acting in a transaction does not necessarily constitute
him the solicitor of both parties, so as to affect both
parties with notice of the facts.’ 190.

A purchaser of a legal estate with notice of an equi-
table claim, will be protected, if he purchases from a
prior bon@ fide purchaser without notice; for other-
wise the latter would not enjoy the full benefit of his
own unexceptionable title. And if a purchaser who had
notice sells to another, and the latter had no notice and
is a bond fide purchaser for a valuable consideration,
the title will not be affected with notice in his hands;
for otherwise no man would be safe in any purchase.’
191.

10. Fraudu- 10. Purchases from executors of the per-

with ceeeee, Sonal property of their testator, are ordinarily

ning valid, notwithstanding it may be affected
vee with some peculiar trust or equity in the

hands of the executor; for the purchaser cannot be

1 2Sp. 761; Fisher, Mortg., 2d ed., par. 1107.*

2 Perry v. Holl, 2D. F. & J. 38.

9 St. 4 409, 410; 2 Sp. 764; Sugd. V. & P., 14th ed. 153; 2
Lead. Cas, Eq., 2d ed. 36, 87, et seq.*

 

* 1 Perry on Trusts, ¢ 222.
CONSTRUCTIVE FRAUD. 99

presumed to know that the sale may not be required
in order to discharge the debts of the testator, to which
they are legally liable before all other claims. But if
the purchaser knows that the executor is converting
the estate into money for an unlawful purpose, the
purchase will be set aside.’ 192.

11. The object of the statute 27 Eliz. c. 4, 44 pranas
being to give full protection to subsequent "nde the

stat. 27 Eliz.
purchasers against voluntary prior convey- {333'%, the

case of

ances, a prior conveyance is deemed void, as 9cas'a.”
against a subsequent purchaser or mortgagee, {83)25¢""
whether with or without notice, and even }irchisers
after proceedings to enforce such prior con- 7°
veyance, if not on valuable consideration, although it
may be bond fide and on good consideration, or although
it may be expressed to be made for divers valuable
considerations, not naming them; on the ground that
the Statute, in every such case, infers fraud, and will
not suffer the presumption to be rebutted. As between
the parties themselves, however, such conveyances are
binding. And where a voluntary settlement has been
made, subsequent judgment creditors of the settlor can-
not acquire rights in derogation of it which the settlor
would not have possessed. And as between two vol-
untary conveyances, if the first is fraudulent, the second

will prevail; but where each is bond fide, Equity will

1 St. @ 422, 423, 580,581; Elliot v. Merryman, 1 Lead. Cas. Eq,,
2d ed. 45, et seq.*

 

“* Sacia v. Borthoud, 17 Barb. 15.
100 CONSTRUCTIVE FRAUD.

not interfere.’ Nor will Equity interfere where the
voluntary grantee has conveyed to a bond fide pur-
chaser for valuable consideration, before the bond fide
purchaser from the voluntary grantor acquired his
title.” And Equity will not give its aid to a voluntary
settlor to enable him to complete a contract for sale
against a purchaser.2 193.

The law that a man who has executed a voluntary
settlement is enabled to sell the estate just as if he had
done nothing, is highly unreasonable. And the Courts
will now lay hold of any circumstances constituting a
consideration moving from the grantee to the grantor
to take a case out of the category of voluntary deeds.‘
194.

There is this exception to the general rule in the
case of a charity, that if a purchaser has notice.of a
gift to a charitable use, or purchases without notice of
it from a purchaser who had notice of it, he takes sub-
ject to it; though, if he has no notice, and he has not
purchased from a purchaser with notice, he will have
‘the same protection as he would have against an ordi-
nary voluntary conveyance. 195.

A fair voluntary settlement in favor of a wife and

1 St. 4 425, 426, 433 ; 2 Sep. 288, 638 ; Ellison v. Ellison, 1 Lead.
Cas. Kq., 2d ed. 199, et seg.; Kelson v. Kelson, 10 Hare, 386; Bar-
ton v, Vanheythuysen, 11 Hare, 126; Lewis v. Rees, 3 K. & J. 132,
150, 151; Daking ». Whimper, 26 Beav. 568; Lloyd v. Attwood,
3D. & J. 614; Dolphin v. Aylward, L. R. 4 H. L. 486; Rosher v.
Williams, L. R. 20 Eq. 210.

2 St. @ 434. 3 2 Sp. 289.

* V.-C. Malins, in Rosher v. Williams, L. R. 20 Eq. 218.

5 2 Sp. 289; Tudor’s Char. Trusts, 2d ed. 329-339.
CONSTRUCTIVE FRAUD. 101

children is also an exception to the rule to this extent,
that almost any bond fide consideration, in addition to
the meritorious consideration of the provision itself,
will be sufficient for the purpose of supporting the
settlement, whether it appear on the face of the settle-
ment, or be otherwise made out. Therefore, if a per-
son whose concurrence the parties deem essential, joins
in a settlement, his concurrence will be deemed a valu-
able consideration, although he did not substantially
part with anything.’ 196.

As to pre-nuptial settlements and post-nuptial settle-
ments in pursuance of pre-nuptial articles, or on receipt
of an additional portion, or on which the husband and
wife, having interests, give up something, they are set-
tlements for valuable consideration, and of course good
against subsequent purchasers, or against prior volun-
tary grantees, as the case may be.” 197.

A collateral relation who is the object of an ulterior
limitation in a settlement, is not a mere volunteer ; for
though he may not be within the consideration of the
marriage, he is within the contract ; but yet it has been
held that he cannot prevail against a purchaser.? 198.

A conveyance for payment of debts generally, to
which no creditor is a party, and in which no particu-
lar debt is expressed, is a fraudulent conveyance within
the statute.* 199.

1 See 2 Sp. 288, 290; Sugd. Concise View, 568, 569; Atkinson v.
Smith, 3 D. & J. 186; Bayspoole v. Collins, L. R. 6 Ch. Ap. 228.

2 Smith’s Compendium, 5th ed.,, par. 2395; In re Foster and
Lister, L. R. 6 Ch. D. 87.

89 Gn 901_2 498m 341.
102 CONSTRUCTIVE FRAUD.

12. In every transaction in which a per-
inthewe son obtains by voluntary donation a benefit

f volun- a :
tary gifts, from another, it is necessary, if the transac-

fnedonors tion be called in question, that he should be
‘emselv°s- able to establish that the person giving him
the benefit did so voluntarily and deliberately, and
with full knowledge of what he was doing; if this is
not established, the transaction will be set aside. And

where the circumstances are such that the
ae orre- donor ought to be advised to reserve a power
wecatie®: of revocation, it is the duty of the solicitor
to the donor, or a solicitor acting for both parties, so
to advise ; and in such a case, the want of such a power
will in general, in the absence of such advice, be fatal
to the deed.’ It is not necessary to show that the usual
clauses were explained ; but any unusual clauses must
be shown to have been brought to the donor’s notice,
explained, and understood.* 200.
aig lan 13. The donee of a power must. exercise
lent ap- it bond fide for the end designed ; otherwise
pointments. . , .

it is considered as a fraud upon the power.‘

' Huguenin v. Baseley, 2 Lead. Cas. Eq., 2d ed. 462, et seq. ;
Cooke v. Lamotte, 15 Beav. 241; Anderson v. Elsworth, 3 Gif.
154; Sharp v. Leach, 31 Beav. 491; Toker v. Toker, 31 Beav.
629; Phillipson v. Kerry, 32 Beav. 628; Lyon v. Home, L. R. 6
Eq. 655.*

® Coutts v. Acworth, L. R. 8 Eq. 558, 567; Wollaston v. Tribe,
L. R. 9 Eq. 44; Phillips v. Mullings, L. R. 7 Ch. Ap. 244, 247,
248; Hall v. Hall, L. R. 14 Eq. 365.

3° Phillips v. Mullings, L. R. 7 Ch. Ap. 244, 248.

‘ Topham v. Duke of Portland, 1 D. J. & 8. 517.

 

* Bigelow on Fraud, 197; St. Eq. Jur. 3 706b.
CONSTRUCTIVE FRAUD. 103

Hence, where a person has a power of ap- ;
ets a . Appoint-
pointing to all or any of his children, and aren ane
he exercises it in favor of one child, merely eo

in order to remove an objection to the title

of an estate, the appointment is void. And if a person
having a particular power to be exercised for 4 oint.
the benefit of others, makes an appointment Mi". 4
in payment of a debt due to the appointee benefit st,

cured to the
by the appointor, or upon the terms or for 2Ppointer,
the purpose of securing some benefit to him- °°"
self or some others not objects of the power, such an
appointment is fraudulent and wili be set aside in
Equity: as where the donee of a power appoints a
fund to one of the objects of a power, under an under-
standing that the latter is to lend the fund to the for-
mer, though on good security; or that the appointee
should hold the fund in trust for, or make over a part
to, persons some of whom are not objects of the power.
201.

Upon the same principle, if a parent ap-
points an immediate portion to an infant nL ea
who is not in want of it, or appoints to a meee
child, whether infant or adult, who is seriously ill,
with a view to becoming entitled to that which is so
appointed himself, as the personal representative of
such appointee in the event of his death, the appoint-
ment is void as a fraud upon the power. 202.
Where a person exercises a general power Rights of

of appointment in favor of a stranger, it {eines

f , . 1
will be deemed a fraud upon his creditors, fppointee.
104 CONSTRUCTIVE FRAUD.

who will in Equity become entitled to the money in
the hands of the appointee.’ 203.

; 14. If a man has induced another to enter
an end id into a contract with him, by representing an
formed the actual state of things as a security for the
fim for enjoyment of an interest which he has him-
contrac: self created for valuable consideration, he is
not at liberty, by his own act, to derogate from that
interest, by determining the state of things which he
has so held forth as the consideration for entering into
the contract.’ 204.

15. Rescina- 15. A person who has entered into a pur-

jngsderto chase contract, cannot rescind such contract,

b s ; .
poweit PY? in order to turn to his own benefit a flaw in

oe the vendor’s title, which he has discovered
from the abstract: as by buying up the interest of an
heir-at-law whose concurrence is necessary.2 205.

' Smith’s Compendium of the Law of Property, 5th ed., par.
2136-8; Aleyn v. Belchier, 1 Lead. Cas. Eq., 2d ed. 304, et seg. ;
Re Marsden’s Trust, 4 Drew. 594.

2 Piggott v. Stratton, Johns. 841; 1 D. F. & J. 33.*

5 Murrell v. Goodyear, 2 Gif. 51; 1D. F. & J. 432.

 

* St. Eq. Jur. 3 956. See also Phillips v. Boardman, 4 Allen,
147; Parker v. Nightingale, 6 Allen, 341.
TITLE II

OF Executive Equity.
LEGACIES, 107

CHAPTER L

OF LEGACIES AND PORTIONS.

No action lies, at the Common Law, to recover lega-
cies, unless the executor has assented to them ;' because
all the chattels vest in him, and are liable to gurisaic-
the payment of the testator’s debts, and it is “°™
the duty of the executor, before he pays, delivers over,
or assents to the legacies, to see whether there will be
sufficient left to pay the debts, inasmuch as a man
must be just before he is permitted to be generous.’
But after the executor has assented to a specific legacy
of chattels, the property vests immediately in the
legatee, who may maintain an action at law for the re-
covery thereof. A similar rule was attempted to be
applied at Law to pecuniary legacies, but the applica-
tion was doubted and disapproved of,? because Courts
of Law could not impose on the parties recovering
these legacies such terms as might be required; so
that, for example, a husband might recover a legacy
given to his wife, without making any provision for her
or her family. And where there is an actual trust, ex-
press, implied, or constructive, or the legacy is charged
on land, or the other Courts cannot take due care of

the interests of all parties, Courts of Equity will assert

1 St. 2591. *% See 2 Bl. Com. 512. * St. 3591. * St. 2 592.
108 LEGACIES.

an exclusive jurisdiction. And even where the ex-
ecutor has assented to the legacy, and there is no actual
trust, yet they have jurisdiction, though it may be
merely a concurrent jurisdiction; because the executor
is considered as a kind of trustee for the legatees,
which forms a universal ground of equitable inter-
ference; and because the interposition of a Court of
Equity may be required to obtain an account or dis-
tribution of assets, or some other relief or assistance
which the other Courts are or were incompetent to
afford.’ 206.

By the stat. 20 and 21 Vict. c. 77, s. 23, no suit for
legacies or the distribution of residues shall be enter-
tained by the Court of Probate, or by any Court or
person whose jurisdiction as to matters and causes tes-

1 See St. 2 593-602.*

 

* In some of the Courts in this country an action at law to re-
cover a pecuniary legacy has been maintained after assent by the
executor; in others it is allowed by statute. St. Eq. Jur. ¢ 592,
note, and cases there cited. At Law, the surplus of personal estate
goes to the executor after payment of all debts and legacies. In
Equity, he is trustee of the surplus for benefit of next of kin, if from
the nature and circumstances of the will a presumption arises that
the testator did not intend the executor should take the surplus to
his own use. See St. Eq. Jur. 2 596 and note. As to what cir-
cumstances will be sufficient to turn the legal estate of the execu-
tor into a trust, see Jeremy, Eq. Jur., B. 1, ch. 1, @ 2, pp. 122 to
135; 2 Roper on Legacies by White, ch. 24, pp. 579, 590-640;
Id. ch. 6, @ 2, pp. 837, 338 ; a matter of presumption substantially.
See also 1 Perry on Trusts, @ 94. In America, the surplus is by
law universally distributable among the next of kin in the absence
of all contrary expressions of intention by the testator. St. Eq.
Jur. @ 1208 and note,
LEGACIES, 109

tamentary is thereby abolished. But by the stat. 9
and 10 Vict. c. 95, s. 65, and 13 and 14 Vict.c. 61,s.
1, a legacy not involving a trust, and not exceeding
£50, may be recovered in a County Court. 207.

In cases of legacies payable at a future , |
day, whether contingent or otherwise, Courts able at Be
of Equity will compel the executor to give
security for the payment thereof; or, which is the
modern and perhaps the more appropriate practice, it
will order the fund to be paid into Court, even if there
is not any actual waste or danger of waste.’ 208.

And where a specific legacy is given to eae
one for life, and after his death to another, legacy to

‘ hs . one for life,
there the legatee in remainder can obtain a remainder

to another.

decree for security from the tenant for life,
for the due delivery over of the legacy to the remain-
der-man, if there is some allegation and proof of waste,
or of danger of waste. But, in the present day, if
there is no such allegation and proof, the remainder-
man is only entitled to have an inventory of the prop-
erty which was bequeathed to him, so that he may be
enabled to identify it, and to enforce a due delivery of
it, when his right of present possession accrues.’ 209.

‘Generally speaking, when a future period | ua.
of distribution among children is contem- dren to be
plated by the will or other instrument, all
who are born during the life of the parent, or before
the period of distribution, are entitled toa share.’ 210.

1 St. 3 603. 2 St. 2 604.

8 2 Sp. 418. See Viner v. Francis, Tud. Lead. Cas. Real Prop.,
2d ed. 702.
110 LEGACIES.

sseuneptie If a legacy is given for a particular pur-
a purpose — pose, the fact that it cannot be effected will
Do. be ca, not prevent the legacy from vesting in the
donee.: So that if a bequest be to or in trust
for a legatee, to apprentice him, or the like, it is an
absolute gift to the legatee; and if he dies before it is
so applied, it will belong to his representatives.” 211.
Wistiea A legacy by a parent to a child is pre-
portion. —_ sumed to be a portion, although it be not so
expressed ; because it is the duty of a parent to provide
for his child. The duty which is imposed upon the
parent may be assumed by any other person who for
any reason thinks proper to put himself in that respect
in the place of the parent; and when it is so assumed,
the same presumption will arise as in the case of a
legacy or gift by a parent. There are many doctrines
which are applicable to portions, that is, sums of money
secured or given by a parent or person standing in loco
parentis to a child, which would not be applied to a
gift as between strangers. 212.
iat If portions or legacies charged on land are
a made payable on an event personal to the
not tobe party to be benefited, and he dies before that
event happen, the portion or legacy is not to

1 2 Sp. 466, note (c). 2 2 Sp. 462. 3 2 Sp. 394.*

 

* Whether the donor has for the purpose assumed the office of
parent so as to invest his gift with the character of a portion, may
be proved by extrinsic evidence, such as general conduct towards
the children, or by intrinsic evidence, as from the nature and terms
of gift. See 2 Spence. Eq. Jur. 394,
LEGACIES, 111

be raised out of the land. But it is otherwise if the
payment is postponed until the happening of an event
not referable to the person of the party to be benefited,
but to the circumstances of the estate out of which the
portion or legacy is to be paid.’ 213.

Where a portion is secured, and no particular time
is fixed for the vesting, if the child dies before the time
when the portion is needed, the portion will not be
raised; for it is reasonable that the land should be
eased of the charge, when the only motive for making
the same is at an end.” 214.

If there is a limitation to the parent for iste
life, with a term to raise portions at twenty- ain
one or marriage, and the interests are vested,
the portions must be raised forthwith by sale or mort-
gage of the reversionary term, unless there is some-
thing to indicate an intention that the portions should
not be raised until the term falls into possession. 215.

- When a legacy is given by a father or a person.
standing in loco parentis, as a provision for an in-
fant, and no maintenance or interest is given, though
the legacy be payable at a future day, the infant has
an immediate right to interest.* 215 a.

When real estate is so settled as that it
must on the death of a parent go to his eldest dion Of peo
son, and provision is made, not by a stranger “younger
or relation not standing in loco parentis, but ,
by that parent or by a person standing in loco parentis,
whether by pre-nuptial settlement or by will, for the

1 2 Sp. 396. 2 2 Sp. 398. 2 2 Sp. 405.
«2 Sp. 409; 2 Rop. Leg, 4th ed. 1257, 1270, 1348.
112 LEGACIES.

younger children of such parent or person, the Court
has considered the presumption, that it was intended
to make provision for all the children, and not to give
a double portion to any, to be so strong, that it has let
in all children unprovided for by the settlement or
will itself, or by means which were in contemplation
of the parties making the settlement or will, though
not strictly. “younger,” and has excluded the child
provided for by the family estate, even though a
younger child. This latitude of construction is not
extended to a legal limitation in a deed. In ordinary
cases, the period of distribution, and not the period of
vesting, is the time for ascertaining who is to be ex-
eluded.’ 216.
In deciding on the validity and interpre-
Construc- .
ee tation of purely personal legacies, Courts of
Equity in general follow the rules of the
Civil Law, as they were recognized and acted on in the
. Ecclesiastical Courts; but as to the validity and inter-
pretation of legacies charged on land, they generally
follow the rules of the Common Law.? 217.

With these few remarks we must dismiss the sub-
ject of Legacies and Portions, as a separate topic, since
it is so extensive, that the doctrines of Equity respect-
Jing it could not be even succinctly stated without far
transgressing the limits allotted to the present Manual.
218, 5, ,

a

1 2 Sp. 411-416; In re Bailey’s Settlement, L. R. 9 Eq. 491.
2 St. 2 602, 608.
DONATIONES MORTIS CAUSA. 118

CHAPTER ITI.

OF DONATIONES MORTIS CAUSA.

Courts of Equity maintain a concurrent. 5, ,isai¢
jurisdiction in all cases of this kind, where “™ -
the assistance afforded at Law was not adequate or
complete.’ 219.

A donatio mortis causd is a gift of per-
sonal property made by one who appre-
hends that he is in peril of death, and evidenced by a
manual delivery by him, or by another person in his
presence by his direction, to the donee or some one
else for the donee, of the property itself, or of the
means of obtaining possession of the same, or of the
writings by which the ownership thereof was created
and conditioned to take effect absolutely in the event
of his not recovering from his existing disorder, and
not revoking the gift before his death.2 Thus, nego-
tiable notes, promissory notes, payable to order,
though not indorsed, bills of exchange, wyat may
though not indorsed, bank notes, bankers’ p&{hese,
deposit notes, checks drawn by a third per- ovations

Definition.

* St. 2 606; Ward v. Turner, 1 Lead. Cas. Eq., 2d ed. 721
et seq.
2 St. 2 606, 607 a-607c; 1 Sp. 196; 2 Sp. 912; Power ». Helli-

car, 26 Beav. 261.
10
114 DONATIONES MORTIS CAUSA.

son, policies of insurance, bonds, and mortgages, may
be the subject of such donations ; and goods in a ware-
house may be given in like manner by a delivery of
the key.! But the delivery of the donor’s check,
which was not presented before his death, was held
not to be a good donatio mortis causa,’ unless paid
away for valuable consideration before his death.’
And railway stock cannot be the subject of a donatio
mortis causd.* 220.

Mixelenar. A donation of this kind partakes partly
acter of | of the characteristics of a gift of inter vivos,
reer and partly of those of a legacy. It differs
from a legacy in these respects: 1. It takes effect sub
modo from the delivery in the lifetime of the donor ;
and therefore it cannot be proved as a testamentary
act in the Court of Probate. 2. It requires no assent
or other act on the part of the executor or administra-
tor to perfevt the title of the donee. It differs from a

18t. 2 607a; 1 Sp. 196; 2Sp. 657; Bouts v. Ellis, 17 Beav.
121; Veal v. Veal, 27 Beav. 303; Rankin v. Weguelin, 27 Beav.
309; Witt v. Amis, 1 Best & Sm. 109; Amis v. Witt, 33 Beav.
619; Moore v. Moore, L. R. 18 Eq. 474.*

2 Hewitt v. Kaye, L. R. 6 Eq. 198; Bromley v. Brunton, L. R.
6 Eq. 275; In re Beak’s Estate, Beak v. Beak, L. R. 13 Eq. 489.

® Rolls v, Pearce, L. R. 5 Ch. D. 730.

“ Moore v. Moore, L. R. 18 Eq. 474.

 

* There can be no valid donation mortis caus@: (1). unless the
gift be with a view to the donor’s death; (2) unless it be condi-
tioned to take effect only on the death. of the donoy, by his exist-
ing disorder, or in his existing illness; and (3) unless there be an
actual delivery of the subject of the donation. See Huntington
»v. Gilmore, 14 Barb. 243; Hitch v. Davis, 3 Md..Ch. Dev. 206.
DONATIONES MORTIS CAUSA. 115

gift inter vivos in certain respects in which it resembles
a legacy: 1. It is revocable during the donor’s life-
time. 2. It may be made to the wife of the donor.
3. It is liable to the debts of the donor on a defi-
ciency of assets.’ 221.

Words of absolute gift, if accompanied by joi
expressions showing that the intention was words
that the property should be enjoyed only in ‘
the event of the death of the donor, will be sufficient
to constitute a donatio mortis causé.? 222.

Evidence of the clearest and most un-
equivocal character is requisite to support a
donatio mortis causa.’ 228.

Evidence.

1 St. 2 606a; 1 Sp. 196. 2 2 Sp. 912.
3 Cosnahan »v. Grice, 15 Moo. P. C. 215.
116 EXPRESS PRIVATE TRUSTS.

CHAPTER III.

OF EXPRESS PRIVATE TRUSTS EVIDENCED BY SOME
, WRITTEN DOCUMENT.

LDefinition 1. A TRUST, when used in the sense of an
ofatrust. equitable interest, is not now, as it was at
one time, considered a chose in action ; it is a beneficial
interest in, or a beneficial ownership of, real or per-
sonal property, unattended with the possessory and
legal ownership thereof.' 224.
IL Extent II. Trusts arising under wills are exclu-
tinover” sively within the jurisdiction of Courts of
year Equity.’ And indeed this is the case with
most matters of trust. 225,
2 III. Trusts may be divided into three
III. Divi- e ‘ A
sion of kinds: express trusts, implied trusts, and
constructive trusts. The last two, however,
are frequently confounded, or at least classed together,
and are sometimes designated by the name of implied
trusts, and sometimes by the name of constructive
trusts. 226.
1 See Smith’s Executory Interests, annexed to Fearne, 3 40-6,

50; 2 Sp. 875.*
2 St. 2 1058. 3 St. 2 962.

 

* See 1 Perry on Trusts.
EXPRESS PRIVATE TRUSTS. 117

IV. An express trust is a trust which is yy pesnic
clearly expressed by the author thereof, or fonoe”
may fairly be collected from a written docu- “"**
ment. 227.

V. The Statute of Frauds requires all
declarations of trust of freehold, copyhold, or distarstiga
leasehold lands, tenements, or hereditaments, woe
to be evidenced by some writing signed by the party
declaring the same. But declarations of trust of
money, even though secured on real estate, or of chat-
tels personal, need not be so evidenced.’ 228.

A declaration of trust, if bond fide, is valid, though
at a distance of time. And if the document refers to
any other document, which shows what was meant by
the parties, that is sufficient.” And if the terms of the
trust do not sufficiently appear upon the face of the
instrument, evidence may be received to show the posi-
tion of the party signing, and the circumstances by
which he knew himself to be surrounded, and the
credibility of the instrument.’ 229.

It is not necessary that there should be any actual
transfer of property to render a declaration of trust
effectual. Ifa person declares himself to be a trustee

1 St. 2 972; 1 Sp. 497, 498; 2 Sp.19, 20, 897; Peckham ».

Taylor, 31 Beav. 250.*
2 2 Sp. 21, 22. 8 2 Sp. 22.4

 

* But a trust of personalty by parol must be clearly established
or Equity will not enforce it. See Turner v. Nye, 7 Allen, 176;
1 Perry on Trusts, 2 86.

+ 1 Perry on Trusts, 3 147, and cases there cited.
118 EXPRESS PRIVATE TRUSTS.

for another of money or personal property to be re-
covered, whether in writing or by acts or declarations
of a decisive and definite nature sufficiently proved,
the transaction will be binding against him and his
representatives.! And if a person, by writing or by
word, directs his debtor to hold the money due in
trust for a third person, and such direction is com-
municated to the debtor and the donee, an effectual
trust is created in favor of the donee.” And if a per-
son signs and hands over a memorandum of gift of a
bond, without handing over the bond, that has been
held to be a good declaration of trust. But a mere
promise to give, without valuable consideration, or a
defective conveyance, gift, or, assignment, without
valuable consideration, where the party means actually
to vest the legal ownership in the donee, or in any
other person as trustee for him, will not be considered
as a declaration of trust.‘ In order to give validity
to a declaration of trust, it is necessary that the person
declaring the trust should have parted with his interest
in the property, and put it out of his power, at least

1 2 Sp. 897; Dipple v. Corles, 11 Hare, 183; Peckham ». Tay-
lor, 31 Beav. 250; Grant v. Grant, 34 Beav. 623.*

2 2Sp. 53, 898; Patterson v. Murphy, 11 Hare, 88; Vander-
berg v. Palmer, 4 K. & J. 204.¢

5 Morgan wv. Malleson, L. R. 10 Eq. 475.

‘ 2 Sp. 57, 887; Dipple v. Corles, 11 Hare 183; Warringer ».

Rogers, L, R. 16 Eq. 340;. Richards». .Delbridge, L..R. 18. Eq.
11; Moore v. Moore, L. R. 18 Eq. 474.4

 

* 1 Perry on Trusts, 3 86, 96, 97.
+ Ib,, 3 104 and notes.
t Ib, 3 97.
EXPRESS PRIVATE TRUSTS. 119

in intention. So that a delivery of a box angé contain-
ing a deed of gift, and of the key of which the party
delivering it retains possession, will not amount to a
declaration of trust of the contents.! And it has been
held that a memorandum expressive of “an intention
to leave” ora “determination to appropriate” a fund
to a person, and a declaration, during a last illness, of
a wish that it should be given to such person, does not
amount to a declaration of trust, but is a mere inopera-
tive indication of a testamentary intent not carried into
effect.? 230.

VI. Where uses are expressly and clearly yy py what
limited, which the Statute of Uses will not 0s a,
execute, that is, convert into legal estates, °c".
trusts are thereby created; for modern uses, unexe-
cuted by the Statute, are trusts, just as all uses were
trusts before the Statute was made. And where uses
are engrafted on uses, the Statute only executes the
_ first use; so that where an estate is limited to A and
his heirs, to the use of B and his heirs, to the use of
or in trust for C .and his heirs, the Statute executes
the use to B and his heirs; but the use to C and his
heirs is not executed by the Statute, but is a trust.

1 Warringer v. Rogers, L. R. 16 Eq. 340.
2 Re Glover, 2 Johns. & H. 186.*

 

* So if the paper is in the nature of a testamentary disposition
which requires to be proved in a Court of Probate, hut is so im-
perfectly executed that it cannot be proved as a last will and
testament, no trust will be created. See 1 Perry on Trusts, 3 97
and cases cited.
120 EXPRESS PRIVATE TRUSTS.

Nor does the Statute execute uses or trusts where it is
requisite that the trustee should continue to hold the
estate in order to perform them. Nor does the Statute
extend to uses or trusts of chattels real or personal ;
the words of the Statute being, “when any person is
seized to the use,” etc., and the word “seized” being
inapplicable to personal estate. And trusts of copy-
holds were excluded from the operation of the Statute,
because otherwise the rights of Lords would have been
infringed’ 231.

No particular form of expression is necessary to the
creation of a trust.? And a trust may be created,
although there may be an absence of any expressions
which in terms import confidence.’ 2382.

There are many cases, arising under wills, in which it
is very difficult to determine whether or not a trust was
intended to be created. It may, however, be laid down as
a general rule, that expressions of recommendation, con-
fidence, hope, wish, and desire, are considered to create
trusts, if the object and the property which is to form the
subject of the supposed trusts are certain and definite,
and if, regard being had to the whole context and cir-
cumstances of thé will, the subject-matter, the previous
conduct of the testator, the situation of the parties, and
the probable intent, the expressions appear to have

1 See St. 2 970; 1 Sp. 466, 490; Tyrrell’s Case, Tud. Lead Cas.
Real Prop., 2d ed. 274.

2 1 Sp. 498; 2 Sp. 20.*
8 Page v. Cox, 10 Hare, 169.

 

* 1 Perry on Trusts, 3 82.
EXPRESS PRIVATE TRUSTS. 121

been intended to be imperative; and expressions show-
ing a desire that an object should be accomplished,
will be deemed imperative, unless there are plain ex-
press words, or there is a necessary implication that
the testator did not mean to exclude a discretion to ac-
complish the object or not, as the party may think fit.
But if either the object or the subject is not definite ;
or if.a discretion and a choice to act or not is given ;
or if the prior disposition of the property imports an
absolute ownership, as where it is given without any
fetter in a former part of the will; or if the motive as-
signed is beneficial to the donee ; or if the words which
contemplate a benefit to a third person appear to be
expressive of the motive by which the testator was ac-
tuated, rather than of a trust in favor of such person ;
as where a legacy is given to A the better to enable
him to maintain his children; or where a testator be-
queaths a sum to trustees upon trust to pay the in-
come to a person for life, “nevertheless to be by him
applied towards the maintenance, education, or benefit
of his children,” which are legal obligations in the
case of a father, though only moral obligations in the
case of a mother; no valid trust will be created by
words of this character."| And any words by which

’ St. 2 1069, 1070, and notes; 2 Sp. 64-71; Harding v. Glyn, 2
Lead. Cas. Eq., 2d ed. 789, et seq.; Briggs v. Penny, 3 Mac. & G.
546; 2 Rop. Leg. 1446; Thorp v. Owen, 2 Hare, 607; Macnab v.
Whitbread, 17 Beav. 299; Reeves v. Baker, 18 Beav. 372; Castle
v. Castle, 1 D. & J. 352; Gulley v. Cregoe, 24 Beav. 185; Byne v.
Blackburn, 26 Beav. 41; Wheeler v. Smith, 1 Gif. 300; Quayle v.
Davidson, 12 Moo. P. C. 268; Fox v. Fox, 27 Beav. 301; Bonser
v. Kinnear, 2 Gif. 195; Shovelton v. Shovelton, 32 Beav. 145;

11
122 EXPRESS PRIVATE TRUSTS.

it may be expressed or from which it may be implied,
that the first taker may apply any part of the sub-
ject to his own use, are held to prevent the subject
of the gift from being considered certain. And a
vague description of the object, that is, a description
by which the giver neither clearly defines the object
himself, nor names a distinct class out of which the
first taker is to select, or which leaves it doubtful what
interest the object or class of objects is to take, will
prevent the object from being certain within the mean-
ing of the rule.’ But where in terms or in effect a
gift is made to a parent for or towards the support of
himself and children, the mere fact that the parent
may apply part of the property for his own support,
does not render the subject uncertain, so as to prevent
the disposition from being construed to create a trust
in favor of his children. It is only an uncertainty
2

Bibby v. Thompson (No. 1), 32 Beav. 646; Hart v. Tribe (No. 4),
32 Beav. 279; 1 D. J. & 8. 418; Hood v. Oglander, 34 Beav. 513 ;
Barrs v. Fewkes, 2 Hem. & Mil. 60; Eaton v. Watts, L. R. 4 Eq.
151; McCormick v. Grogan, L. R. 4 H. L. 82; Lambe v. Eames,
L. R. 10 Eq. 267; Mackett v. Mackett, L. R. 14 Eq. 49; Curnick
v. Tucker, L. R. 17 Eq. 320; Le Marchant v. Le Marchant, 18 Eq.
414; Stead v. Mellor, L. R. 5 Ch. D. 225.*

1 St. 2 1070, note; 2 Sp. 69, 72, 78; Green 7. Marsden, 1 Drew.
646.

 

* For discussion of the subject of trusts created by the use of
words of hope, confidence, wish, desire, etc., “precatory words,”
see 1 Perry on Trusts, ¢ 112, 113, where the subject is elaborately
treated in the text and notes, with full references to English and
American cases,

} 1 Perry on Trusts, 3 113.
EXPRESS PRIVATE TRUSTS. 123

which the Court can remove by ascertaining, if neces-
sary, what should be devoted to the children.’ Again,
the family of A will often be a sufficient designation
of the objects; for the context may render it definite,
and show that it means the heir-at-law of A, or, in
other cases, the children of A, or, in others, the bro-
thers and sisters or next of kin of A, according to the
Statutes of Distribution. Generally speaking, neither
the husband nor the wife will be considered as in-
cluded under the word “family.” Although the term
“Yelations”’ is still more indefinite, the Court has exe-
cuted a trust in favor of relations, by giving the prop-
erty, when personal, to the next of kin, according to
the Statutes of Distribution, but per capita.’ But
where a testator devised his leasehold estates to his
brother A forever, “hoping he would continue them
in the family,” this did not-create a trust; for the
words gave a choice, and the object was not definite.*
And where a testator bequeathed to his wife all the
residue of his personal estate, “not doubting but that
she will dispose of what shall be left at her death to
his two grandchildren ;” these words did not create a
trust, because the property would be uncertain ; for it
might be just what she chose to leave.* 233.

VII. A valid trust may be created by yyy pow a

words expressive of confidence that a devisee jeq\semay

or legatee will carry out the testator’s wishes, j%prexed”

verbally communicated to him before the will “""*'"**

1 2 Sp. 463-5. 2 St. @ 1071; 2 Sp. 73-6.
2St. 31072; 2Sp.75. * St. #1073.
124 EXPRESS PRIVATE TRUSTS.

was made.' And if a devisee or legatee expressly or
impliedly promises a testator that he will give effect to
the testator’s wishes for the benefit of some other per-
son, or for some object, even though they be only
verbally expressed after the will was executed, the
devise or bequest is subject to a trust to carry out those
wishes, where they are such as, if expressed in the will,
would be enforced.? 234.

Scene It sometimes happens that although no
excluded = = valid trust is created, yet it is clear that a

from taking

bencficially, g ‘ 2, =
penvficr’y; trust was intended; and in such instances

inenged,, the person to whom the gift is made is as

ae completely excluded from taking beneficially
as if a valid trust were created. This is the case
where the words are directly or indirectly imperative,
but the objects are too indefinite, or are not pointed out
at all, or not in such a way that the Court can take
judicial notice of them.’ 235.

VIEL trust VIII. Express trusts are either executed
executed or executory, in the sense of directory. A
tory. trust executed is a trust which appears to be
finally declared by the instrument creating it. A trust,
executory or directory, is a trust raised either by a
stipulation or by a direction, in express terms or by
necessary implication, to make a settlement or assur-
ance to uses or upon trusts which are indicated in, but

1 Irvine », Sullivan, L. R. 8 Eq. 673.

° McCormick v. Grogan, L. R. 4 H. L. 82; Norris v, Frazer, L.
R. 15 Eq. 318.

3 St. 2.979a,b; Briggs vr. Penny, 3 Mac. & G. 546; Bernard ».
Minshull, Johns. 276. e
EXPRESS PRIVATE TRUSTS. 125

do not appear to be finally declared by, the instrument
containing such stipulation or direction.’ 236.

In the case of trusts executed, a Court of Equity
puts the same construction on technical words as that
which is put by a Court of Law on limitations of legal
estates. But in the case of trusts executory, Equity
considers the apparent intent to be collected from the
whole instrument, or, where the language is doubtful,
the presumable intent, rather than the strict import of
technical words.” Thus, where the legal estate is
limited to one for life, remainder to the heirs male of
his body, he takes an estate tail male under the rule in
Shelley’s Case. And where, in a will or voluntary
deed, there is a mere direction to settle an estate on
one for life, to be followed by a remainder to the heirs
of his body, as there is nothing of an inchoate or ex-
ecutory nature in the instrument itself, and the words
are formal and explicit, and there is nothing in the
instrument to show or afford a presumption that the
words were not intended to be used in their technical
sense, the mere reference to a further instrument does
not render the trust executory, and therefore the limi-
tations, as regards the rule in Shelley’s Case, receive
the same construction as similar words used in limiting

1 Smith’s Executory Interests annexed to Fearne, ¢ 489; 2 Sp.
128, 129, 131-3; Lord Glenorchy ». Bosville, 1 Lead. Cas. Eq.,
Qd ed. 1, et seg.; Turner v. Sargent, 17 Beav. 515; Doncaster v.
Doneaster, 3 K. & J. 26; Fullerton v. Martin, 1 Drew. & Sm. 31.*

2 See 2 Sp. 131-5; Sackville-West ». Visc. Holmesdale, L. R. 4
H. L. 548.

 

* Saunders v. Edwards, 2 Jones’s Eq. 134.
126 EXPRESS PRIVATE TRUSTS.

legal estates. But if marriage articles express that an
estate is to be settled on the husband for life, with re-
mainder to the heirs of his body, there the inchoate
nature of the instrument, combined with the allusion
to a further instrument, renders the trust executory ;
and as the issue in this case are purchasers for valuable
consideration, so Equity will construe the articles as
giving an estate for life only to the husband, with a
remainder in tail to the children.’ 237.

IX. Trusts in real property which are
governed’ exclusively cognizable in Equity, are gener-
by same
rulesasle- ally governed by the same rules as legal es-
sanesiates.  tates.? But, 1. The construction put upon
trusts executory, as we have before seen, differs, in some
respects, from that which prevails in regard
to legal estates and trusts executed. 2. Be-
fore the late Dower Act, Courts of Equity held that
trust estates were not subject to dower; because, before
the question was tried, it was the general opinion that,
by the creation of a trust estate, dower was prevented
from attaching; and it is a maxim that, communis
error facit jus; and to have held that trust estates
were subject to dower would have affected a large pro-
portion of the estates in the kingdom.’ 3. An equita-

1 2 Sp. 136.* 2 1 Sp. 492, 499, 500, 502, 857, 876, 878.+
31 Sp. 501.

Exceptions.

 

* 1 Perry on Trusts, % 358, 359. The distinctions between ex-
ecutory and executed trusts, especially with regard to the applica-
tion of the rule in Shelley’s case, are generally recognized in the
United States. See cases collected in note, Adams’s Eq. [40.]

7 St. Eq. Jur. 3974.
EXPRESS PRIVATE TRUSTS. 127

ble estate being incapable of livery of seisin and of
every form of conveyance which operates by the Statute
of Uses, a mere declaration of trust, if in writing,
signed by the party bound or his agent lawfully au-
thorized, was held sufficient to transfer such equitable
estates ; except that a fine or recovery was required,
where the same would have been necessary if the estate
had been a legal estate. In practice, however, trust
estates have been usually conveyed in the same manner
as legal estates.’ 4. Trusts were independent of the
rules of the Common Law founded on tenure ; so that
a life interest in a trust estate was not forfeited on any
alienation by the tenant for life. 238.

X. Long terms for years are often created X. Trusts of
for securing the payment of money lent on
mortgage and for other purposes. Prior to the statute
8 and 9 Vict. c. 112, such terms did not determine on
the mere performance of the trusts for which they
were created, unless there was a special provision to
that effect ; but the legal interest remained in the trus-
tee after they were performed; and at Law the term
continued to be a term in gross, as distinct and sepa-
rate from the inheritance as it was at first. But in
Equity the term might become attendant on the inheri-

1 Bee St. 3 974, 974a, and notes, and 3 975; 1 Sp. 497, 500, 506,

877; and as to executory trusts, see supra, par. 30, 236, 237.
2-1 Sp. 506.* 3 1 Sp. 500, 505.

 

* And where a trust is created for the benefit of a party, it is
not only alienable by him by his own proper act and conveyance,
but it is liable to be disposed of by operation of law in invitum.
St. Eq. Jur. 3 9748. See also Ames v. Clark, 106 Mass. 573.
128 EXPRESS PRIVATE TRUSTS.

tance by express declaration, so as to follow the descent
to the heir, and all the alienations made of the inheri-
tance, or of any particular estate or interest carved out
of it by deed or by will or by act of Law, and so as not
to be devisable before the late Wills Act, without the
formalities requisite for devising real estate, and, in
short, so as to be governed in Equity by the same rules
generally as the inheritance. Again, a satisfied term
might become attendant on the inheritance with the
same effect by mere implication ; for, as Equity always
considers who has the right to the land in conscience,
if the term was not subject to any ulterior limitation
to which the inheritance was not subject, and the
owner of the inheritance was entitled to the whole trust
of the term, it was attendant on the inheritance by im-
plication. 239 ,

In consequence of satisfied terms being deemed terms
in gross at Law, but capable of being rendered com-
pletely subservient to the ownership of the inheritance
in Equity, they were often made of the greatest use in
protecting the inheritance from mesne estates, charges,
and incumbrances. Thus, if a bond fide purchaser for
valuable consideration, mortgagee, lessee, or other in-
cumbrancer, took a conveyance, lease, or assignment,
defective by reason of some estate, charge, or incum-
brance, subsequent to the creation of a long-satisfied term
for years and prior to his own conveyance, lease, or assign-
ment, and of which he had no notice at the time of his
contract, he might effectually protect himself against all
persons claiming under such prior estate, charge, or in-
cumbranee, by taking an assignment of the satisfied

¢
EXPRESS PRIVATE TRUSTS. 129

term to a trustee for himself, or by taking an assign-
ment thereof to himself where he took the conveyance,

.lease, or assignment of the estate or interest, to be pro-
tected in the name of a trustee; for he might use the
legal estate in such satisfied term, to defend his posses-
sion during the continuance of the term, or, if he had
lost the possession, to recover it.’ 240.

By the stat. 8 and 9 Vict. c. 112, s. 1, every satis-
fied term which was attendant on the 31st of Decem-
ber, 1845, was on that day to cease, except that, if at-
tendant by express declaration, it was to afford the
same protection as it would have afforded if it had
continued to subsist, but had not been assigned or dealt
with after that day. And bys. 2, every term which,
after the 31st of December, 1845, should become satis-
fied and attendant, was to cease immediately upon the
same becoming so attendant. 241.

An attendant term might at any time be disannexed
by the proper acts of the parties in interest, and be
turned into a term in gross.? 242.

A trust term may be conveyed, as well as devised,
so as to give successive interests to successive takers ;
whereas a legal term can only be devised in that man-
ner? 243.

XI. A person in whose favor a trust has x7 prusts
been created may affirm it, and enforce the Srtied,
performance thereof, although it was created frisp,/™”
without his knowledge, if at least it is not "viet

1 See St. 2 998-1002, and notes; Sugd. Concise View, 477.
2 St. 2 1002. / 31 Sp. 518.
130 EXPRESS PRIVATE TRUSTS.

revoked by the author of the trust before it is so
affirmed! 244,
Peete XII. Equity will enforce a trust where
trusts will it is executed, or where it is raised by will,
even though it is a mere voluntary trust;
but it will not enforce an executory trust raised by a
covenant or agreement, unless it is supported by a
valuable consideration? 245.
xuL Exe III. Marriage articles will be specific-
Siursiags ally executed on the application of any per-
articles. gon within the scope of the consideration of
the marriage, or of those claiming under any such per-
son. But they will not be specifically executed on the
application of persons who are volunteers, even of a
wife or child by a subsequent marriage; although
where the proceeding is by persons who are within the
scope of the consideration, or by those claiming under
them, Courts of Equity -will decree a specific execution
throughout, as well in favor of the mere volunteers,
as of the plaintiff, as the Courts either execute thents in
toto, or not at all.’ 246.
Lis Hee XIV. Putting the bankrupt and insolvent
siznments laws out of the case, a person is at liberty
ofereditors. to assign all his property for the benefit of
his creditors, though it may be for the purpose of de-

1 St. ¢ 972.
? See cases referred to, St. 3 793, 793a; 2 Sp. 52, 57, n. (e), 129,

255; Ellison v. Ellison, 1 Lead. Cas. Eq., 2d ed. 199, et seg. And , ,

as to the distinction between executory and executed, see supra,
par. 236, 237.
3 St. ¢ 986, 987; 2 Sp. 287.
EXPRESS PRIVATE TRUSTS. 131

feating some particular creditor of his execution in an
action commenced by him against the debtor. For a
‘debtor, in securing the equal distribution of his effects
among all his creditors, is only performing a moral
duty. But such an assignment must be free from fraud
and misrepresentation.’ 247.

Preferences and priorities of particular creditors are
ordinarily valid, in general assignments made by debt-
ors, in discharge of their debts, except under the laws
of bankruptcy and insolvency.’ But a debtor cannot
vest his property in one of his creditors for the pur-
pose of hindering and delaying his other creditors,
and compelling them to come to terms; for such a
deed is fraudulent and void.’ 248.

Assignees under general assignments take only such
rights as the assignor or debtor had at the time of the
general assignment; and consequently a prior special
assignee will hold against them, without giving notice
of his assignment.* 249.

In order to entitle the creditors named in a general
assignment for the benefit of creditors to take under it,
it is not necessary that they should be technical parties
thereto, unless they are named in the assignment as
parties, and are expressly required to execute before
they can take under its provisions. It is sufficient if

12 Sp. 350, 352; Worseley ». De Mattos, Tudor’s Lead. Cas.
Merc. Law, 488; Harman v. Fishar, Id. 455.*

2 St. 2 1036; 2 Sp. 350-2.

3 Smith v. Hurst, 10 Hare, 30. * St. 2 1038.

 

* McNeal v. Glenn, 4 Md. 87.
132 EXPRESS PRIVATE TRUSTS.

they have notice of the trust in their favor, and assent
to it; and if there is no stipulation for a release or
any other condition which may render it not for their
benefit, their assent will be presumed till the contrary
appears.’ Until, however, the creditors have assented
to the trust, and given notice thereof to the assignee,
an assignment of this kind, in which the creditors are
not parties, and have not executed, is deemed revocable
by the debtor, in Equity as well as at Law, whether
the creditors are individually named or not.’ ‘250.

Where creditors have acted under a deed of compo-
sition, and treated it as valid, a Court of Equity will
also act under it and treat .it as valid as against the
assignor, though the creditors have not executed it
within the time prescribed.* 251.

Where there is an assignment to two trustees, and
one assents and the other dissents, the property passes
to the assenting trustee. 252.
pores XV. In those cases where a consignment
cabieness of Or remittance is made, with orders to psy

a consign-

mentor over the proceeds to a third person, the ap-
remittance.

propriation is not absolute, but revocable at

1 St. 3 13836.a. See Biron v. Mount, 24 Beav. 642.*
2 St. 2 10386b; Steele ». Murphy, 3 Moo. P. C. 445.
3 2 Sp. 354, “2 Sp. 351+

 

* ‘New England Bank v. Lewis, 8 Pick. 118; 2 Perry on Trusts,
@ 593.

+ The question of general assignments for the benefit of creditors
is becoming of less importance than formerly, in many of the
American States, by reason of statutory provisions controlling
such disposition. St. Eq. Jur. 1037 a.

} St. Eq. Jur. 3-1037, note.
EXPRESS PRIVATE TRUSTS. 133

any time before the third person has assented thereto,
and notice of the same has been given to the manda-
tory; for it amounts to no more than a mandate from
a principal to his agent, and it will be revoked by
any disposition inconsistent with the execution of the
mandate. But after such assent and notice, the third
person may avail himself of it in Equity, without any

‘reference to the assent or dissent of the mandatory ;

for his receipt of the property binds him to follow the
order of his principal.’ 253.

‘Where a person executes and delivers a

. ai Revocahle-

deed of conveyance of equitable property to hess ofa
. conveyance
a volunteer, or where the legal estate is of equitable
‘ ayy. @ . property or
transferred and a trust of it is declared in adeclara-
oe tion of trust

favor of a volunteer, and there is nothing in favor of
upon the face of the transaction or from

contemporaneous evidence to show that it was intended
to be revocable, or that a power of revocation ought
to have been inserted, it cannot be revoked or avoided
in any way. And even if the donor should procure
a retransfer of stock by the trustees, and where it is in

writing, should cancel the instrument, and by will

‘make a provision for the same cestuis que trust, the

.

settlement will be binding; and unless the subsequent
provision is expressed to be substitutionary, the cestuis
que trust, if the gift is not by way of portion, will
take both; but they will have their election if it is
expressed to be in substitution. And stock not being
within the stat. 27 Eliz. c. 4, a purchaser of it from

1 St. 4 1045, 1046.
134 EXPRESS PRIVATE TRUSTS.

the donor cannot avoid the voluntary settlement or
gift! 254.

The keeping in the donor’s possession a deed so ex-
ecuted as to pass the estate, is not of itself sufficient to
enable the donor to revoke it by cancellation or by
will; for, the estate having passed, it would require
the active interference of a Court of Equity to revest
the estate; and it is no ground for such interference
that the act was foolishly or inconsiderately done.’
255.

XVI Efect &WJI. Where a will contains a direction
of adiree- oy power to raise money out of the rents and

tion or

power to ., profits of an estate to pay debts or portions,

raise money

ft debts ete., and the money must be raised and paid

oe sathioud delay, Courts of Equity have so
construed those words as to give a power to raise by
sale or mortgage, unless restrained by other words.’
256.

xvit opi. 9 -& VII. Prior to the enactments which will
Sitchaser De presently mentioned, where real property

eetentios was devised to be sold for, or was charged

of the pur-

chase-—-s With, the payment of definite and ascertained
General sums only, and such payment was to take
ee place at the time when the required amount
was to be raised, the purchaser of such property was
bound. to see that the purchase-money was applied in
the fulfilment of the trust, unless expressly exempted
by a provision by the author of the trust. But where

the property sold constituted the natural and ae

1 2 Sp. 882, 883, see supra, 193,194.
2 2 Sp. 885. 3 St. 2 1064, 1064 a; 2 Sp. 316.
EXPRESS PRIVATE TRUSTS. 155

fund for the payment of debts generally, or was ex-
pressly charged with, or conveyed or devised for, the
_ payment of debts generally, and, therefore, in order to
ascertain the sums to the payment of which the prop-
erty was liable, it would be necessary for the purchaser
to institute proceedings in Equity, or where the pur-
chaser, if bound to see to the application of the money,
would be involved in a trust of long continuance; then
the purchaser, unless he had notice that there were no
debts, or notice of fraud, was not bound to see to the
application of the purchase-money.’ 257.
In illustration of these rules, it may be gyecine
observed that, as the personal estate, whether fyinisia

illustration

consisting of chattels personal or of chattels *j2°a°y°

real, is liable at the Common Law, and con- {heey

stitutes the natural and primary fund for the °"s*t™

payment of the debts of the testator generally, the pur-
chaser of the whole or of any part of it, without notice
that there were no debts, or that the sale was not made
for payment of debts, was not bound to see that the
purchase-money was applied by the executors in the
discharge of the debts,’ even if the testator had directed
his real estate to be sold for payment of debts, whether
specified or not, and had made a specific bequest of a
part of his personal estate for a particular purpose, or
to a particular person, although such specific bequest
was known to the purchaser, provided he had no reason
to suspect any fraudulent or unauthorized purpose; for,

1 See St. 2 1126, 1127, 1128, 1130-4; Elliot ». Merryman, 1
Lead. Cas. Eq., 2d ed. 45, et seq.
2 St. 2 1126, 1128; 2 Sp. 372, 377.
136 EXPRESS PRIVATE TRUSTS.

otherwise, before a person could become a purchaser of
personal estate specifically bequeathed, it would be in-
dispensable for him to come into a Court of Equity to
have an account taken of the assets of the testator, and
of the debts due from him, so as to ascertain whether
it was necessary for the executor to sell. 258.

The same rule, for the same reason, applied to real
estate devised for or charged with the payment of
debts generally;’ even though the trust was only to
sell, or was a charge for, so much as the personal estate
was deficient to pay the debts, and even though a spe-
cific part of the real estate was devised for a particular
purpose or trust, if the whole real estate was charged
with the payment of debts generally by the will. If,
however, the trustee has only a power to sell, and not
an estate devised to him,-then, unless the personal
estate is deficient, the power to sell does not arise.’
259.

Where, in cases of real estate, the trust was for the
payment of legacies or annuities only, or of specified
or scheduled debts alone, or of both, but not of debts
generally, the rule was different; for they are ascer-
tained, and the purchaser must therefore see that the
money is duly applied. But where the devise was for
payment of debts generally, and also for the payment
of legacies or annuities, the purchaser was not bound
to see to the application of the purchase-money, be-
cause, to hold him liable to see the legacies or annui-
ties paid, would in fact have involved him in the ne-

1 St. 21129; 2 Sp. 375-7. 2 St. 21130; 2 Sp. 380, 382.
9 St. 21131; 2 Sp. 382.
EXPRESS PRIVATE TRUSTS. 1387

cessity of taking an account of all the debts and assets.
260.

And the purchaser was not bound to see to the ap-
plication of the purchase-money, where the specific ob-
jects of the trust were not pointed out.’ 261.

But if there was collusion between the purchaser and
the trustees, who were guilty of a misapplication, or if
there was notice that the sale or mortgage was made
for the purpose of a breach of trust, the estate was lia-
ble? 262.

In determining as to the liability of the purchaser,
the Court looked to the deed or will alone, and not
to the circumstances of the testator or to subsequent
events; so that where a testator created a trust or
charge for payment of debts generally and legacies,
and there were no debts at the death of the testator, or
the debts were paid after the death of the testator, and
the legacies only were leftas a charge, that circumstance
alone did not prevent the application of the rule.* 263.

Where the time appointed by the devise for a sale of
real estate had arrived and the persons entitled to the
money were infants or unborn, there the purchaser
was not bound to see to the application of the purchase-
money, because that might have involved him in a
trust of long continuance. But if'an estate was charged

1 St. g 1132; 2 Sp. 379, 382, 386, 389.
2 2 Sp. 381. 3 2 Sp. 384.
“4 2 Sp. 383; Stroughill v. Anstey, 1 D. M. & G. 653.*

 

® St, Eq. Jur. 2 1132a, see also Andrews v. Sparhawk, 13 Pick.
392; Adams’s Eq. 156, note. 8
12
138 EXPRESS PRIVATE TRUSTS.

with a sum of money payable to an infant at his ma-
jority, the purchaser was bound to see the money duly
paid on his coming of age; for the estate remained
chargeable with it in his hands.’ 264.

Where the money was to be applied by the trustees
to purposes which required on their part, time, delay,
and discretion, it seems the purchaser was not bound
to see to the application of the purchase-money.’ 265.

By the stat. 22 and 23 Vict. c. 35, s. 23, it is enacted
that the bond fide payment to, and the receipt of any
person to whom any purchase or mortgage-money shall
be payable upon any express or implied trust, shall
effectually discharge the person paying the same from
seeing to the application or being answerable for the
misapplication thereof, unless the contrary shall be ex-
pressly declared by the instrument creating the trust
or security. By the stat. 23 and 24 Vict. c. 145, s.
12, it is also enacted that receipts for purchase-money
given by the persons exercising the power of sale
thereby conferred on mortgagees, shall be sufficient
discharges to the purchaser, who shall not be bound
to see to the application of the purchase-money. And
by s. 29 it is also enacted that the “receipts in writing
of any trustees or trustee, for any money payable to
them or him by reason or in the exercise of any trusts
or powers reposed or vested in them or him, shall be
sufficient discharges for the money therein expressed
to be received, and shall effectually exonerate the per-
sons paying such money from seeing to the application

1 St. @ 1133; 2 Sp. 387. 4 St. 41134; 2 Sp. 387.
EXPRESS PRIVATE TRUSTS. 139

thereof, or from being answerable for any loss or mis-
application thereof.” A general power to give receipts
was provided by the stat. 7 and 8 Vict. c. 76, but it
only extended from the 1st of January to the Ist of
October, 1845, from which day it was repealed. 266.
XVITI. As long as the relation of trustee _

: XVIIL
and cestui que trust, under an express trust, When iapse

is acknowledged to exist, lapse of time can rar somal
constitute no bar to an account or other *”"""
proper relief for the cestué que trust.’ And it may be
observed that where a sum of money is bequeathed to
an executor, upon trust, to be laid out on certain trusts, .
as soon as it is severed from the bulk of the estate, it
ceases to be a mere legacy, and the bar of the Statute
of Limitations does not apply ; for it is then a case of
express trust, which is specially excepted.? But when
this relation of trustee and cestui que trust is no longer
admitted to exist, or time and long acquiescence have
obscured the nature and character of the trust, or the
acts of the parties or other circumstances give rise to
presumption unfavorable to its continuance, a Court of
Equity will refuse relief upon the ground of lapse of
time and its inability to do complete justice.’ 267.
By the Judicature Act, 1873 (36 and 387 a op
Vict. c. 66, s. 25, par. (2) ), “No claim of a Limitation

inapplicable

cestui que trust against his trustee for any to «xpress

property held on an express trust, or in re-

1 §t. 2 1520a; 2 Sp. 48, 62; Stone v. Stone, L. R. 5 Ch. Ap.
74; Thomson v. Eastwood, L. R. 2 App. Cas. 215.

2 2 Sp. 62; Thomson v. Eastwood, L. R. 2 App. Cas. 215.

3 St. g 1520a.
140 EXPRESS PRIVATE TRUSTS.

spect of any breach of such trust, shall be held to be
barred by any Statute of Limitations.” 268.
eeaa on XIX. There are numerous instances in
performed which the Court has caused the main intent,
tain in- namely, the trust, to be performed, where
, the qualifications intended to secure its due
performance have in fact presented obstacles to its
being performed at all; as where the consent of a par-
ticular person is required, and such consent is per-
versely withheld, or cannot be obtained by reason of
his infancy... 269.
xx where ©: The legal and equitable estates may

cea, coexist separately and distinctly in the same

ae person, unless they are both coextensive and

existence. of the same quality; in which case the equi-
table estate will merge in the legal estate, or rather
will so coalesce with it as to cease to have any separate
existence.” 270.

XXI Trust —™©SI. A Court of Equity will enforce, in
foraualien. favor of the Crown, a trust of real estate for
an alien created prior to the Naturalization Act,1870.'
271.

 

1 2 Sp. 45. 2 See 2 Sp. 879, 880.
5 33 Vict. c. 14; Sharp v. St. Sauveur, L. R. 7 Ch. Ap. 348.
‘

EXPRESS CHARITABLE TRUSTS. 141

CHAPTER IV.
OF EXPRESS CHARITABLE TRUSTS.(a)

I. Cuarities are so highly favored in 5 cyarities
the Law, that charitable gifts have received vored.

a more liberal construction than gifts to individuals.’
272. Thus—

1, In regard to the want of proper trus- |, regard to
tees, if a testator makes a bequest for charity the vant of
to such persons as he shall afterwards name ‘Y*°°*
executors, or to such persons as his executors shall
name, and he appoints no executors, or the executors
die in the lifetime of the testator and no other are ap-
pointed, or if the trustees of a charitable legacy all die
in the testator’s lifetime, or if a corporation intrusted
with a charity fails, the Supreme Court will execute
the charity.” So if a legacy is given to persons who

1 St. 81165; 2 Sp. 246, 247. 2 St. @ 1165, 1166, 1177.

 

(a) On the subject of jurisdiction in case of Charities, the reader
is referred to Mr. O. D. Tudor’s valuable work on the Law of
Charitable Trusts, 2d ed., and to Story’s Eq. Jur. ? 1142, et seq.,
and the Act for the better regulation of Charitable Trusts, 16 and
17 Vict. c. 137, and the Acts to amend it, 18 and 19 Vict. c. 124,
23 and 24 Vict. c. 186, and 32 and 33 Vict.c.110. And as to
Roman Catholic Charities, see 23 and 24 Vict. c. 134. By these
‘Acts jurisdiction has, in certain cases, been conferred upon the
Chancery Judges in Chambers, the Court of Chancery of the
County Palatine of Lancaster, and the Charity Commissioners.
142 . EXPRESS CHARITABLE TRUSTS.

have no legal corporate capacity to enable them to take
as a corporation; as where a legacy is given to the
churchwardens for a charitable purpose. And so if a
corporation for whose use a charity is designed is not
in esse, and cannot come into existence but by some
future act of the Crown.’ 273. ;

in regardto 2: Lhe Supreme Court will supply all
eenvey. defects in conveyances, where the vendor is
eee capable of conveying, and has a disposable
estate, and the mode of-conveyance does not contravene
any statute. 274.

inregarato + In regard to the object, it matters not
the objects: how uncertain the persons or objects may be.
For if a bequest is made in the most general and in-
definite manner simply for charitable uses, or religious
and charitable purposes, eo nomine, the Supreme Court
will treat it as a valid charitable bequest, and will dis-
pose of it for such charitable purposes as it shall think
fit. But where the bequest may, in conformity to the
expressed words of the will, be disposed of in charity
of a discretionary private nature, or be employed for
any general benevolent or useful purposes, or for any
general purpose, whether charitable or otherwise, or
for charitable or other general purposes, at discretion,
the bequest will be void as being too general and in-
definite for tRe Court to execute, and the property will
go to the next of kin. Hence if a man bequeaths a
sum of money to such charitable uses as he shall direct
by a codicil annexed to his will or by a note in writ-

"St. @ 1169, 1170. : 2 St. 21171.
EXPRESS CHARITABLE TRUSTS. 143

ing, and he leaves no direction by note or codicil, the
Court will dispose of it to such charitable purposes as
it shall think fit! But a bequest for such benevolent,
religious, and charitable purposes, or for such chari-
table or public purposes, as the trustees should think
most beneficial, is void.’ And yet it has been held
that a bequest for such charities and other public pur-
poses in the parish of, etc., is a good charitable bequest,
as it must mean public purposes for the benefit of that
parish, and therefore would refer to charities within
the meaning of the statute, 43 Eliz. ce. 4.2 275.
Where the giver has specified any particular chari-
table object, which is contrary to the policy of the Law,
or from some other reason cannot be accomplished at
all, or not in the way prescribed, the Court will devote
the property to some other charitable purpose, if the
nature of the gift, or the concurrence of other chari-
table gifts in the same instrument, indicates that,
although the specified object was the favorite, yet it
was not the exclusive object of the giver, but that he
would have substituted some other charitable object,
had he imagined that his favorite design might pos-
sibly be incapable of being accomplished. This is
called the cy prés doctrine, and where the residue is
given to charity, that will not oblige the Court to
devote the particular gift which fails to the objects of

1 St. @ 1167. ;

2 See St. 2 1157, 1158, 1164, note 4 to 6th ed., 1167, 1169, 1183;
Wilkinson v. Lindgren, L. R.5 Ch. Ap. 570; In re Kilvert’s
Trusts, L. R. 12 Eq. 183; 7 Ch. Ap. 170.

3. Dolan v.- Macdermot, L. R. .5-Eq- 60 ;° 3-Ch. Ap. ‘676. -
144 EXPRESS CHARITABLE TRUSTS.

the residuary gift.' But where no such indication
appears (as where the testator’s object is to build a
church at W, and that cannot be effected), the next of
kin will take.* Where there are no objects in esse,
but some may arise, the Court will keep the fund for
them. And when there can be no such objects as
those which are specified, or when the specified objects
cease to exist, the Court will remodel the charity.’ 276.

4, In regard to surplus income, if a tes-
ampiesin-” tator clearly shows an intention to devote
cea the whole income of a property to charitable
purposes, it will be so applied, although his specific
charitable dispositions do not exhaust the whole in-
come.‘ And when the increased revenues of a charity
are more than sufficient for the specified objects of
charity, the surplus will not go to the heir-at-law or
next of kin of the founder, but will be applied to the
augmentation of the benefits of the charity, or to other
charitable purposes.’ 277.

1 Mayor of Lyons v. Advocate-General of Bengal, L. R. 1 App.
Cas. 92.

2 See St. ¢ 1167-9, 1172, 1176, 1181, 1182; Russell v. Kellett,
3 Sm. & G. 264; Sinnett v. Herbert, L. R. 12 Eq. 201; reversed,
L. R. 7 Ch. Ap. 232.*

3 St. 3 1169, 1170, 1170a, 1176; 2 Sp. 79.

4 2 Sp. 248; Att.-Gen. v. Corp. of Beverley, 15 Beav. 540; 6 D.
M. & G. 256, 265; 6 H. L. Cas. 310; Att.-Gen. v. Trin. Coll.
Camb., 24 Beav. 383.

5 St. 2 1178, 1181; 2 Sp. 248; Philpot v. St. George’s Hospital,
27 Beay. 107; Re Ashton’s Charity, Id. 115; Merchant Taylors’
Comp. v. Attorney-General, L. R. 11 Eq. 35; 6 Ch. Ap. 512.

 

* The cy prés doctrines of the English Chancery have not been
generally adopted in the United States in their application to
charitable trusts. Adame’s Eq. [69], note, and cases cited.
EXPRESS CHARITABLE TRUSTS. 145

5. And to give another instance of the
favor shown to charity, lapse of time is not iaueae :
an equitable bar in the case of charitable *””
trusts! 278.

II. Where money is bequeathed to chari- 3, charities
table purposes abroad, the Supreme Court *7°*
will secure the fund, and cause the charity to be ad-
ministered under its own direction, provided the char-
itable purposes are to be executed by persons residing
within the jurisdiction of the Court.’ But this will not
be done if the objects of the charity are against Law or
public policy, unless the principle of such policy or
Law is of a national or conventional, rather than of a
universal and moral or religious character... 279.

III. It seems that, with a view to encour-
age the discovery of charitable donations tein
given for indefinite purposes, it is the prac- is
tice for the Crown to reward the persons who made
the communication, if they can bring themselves within
the scope of the charity, by giving them a part of the
fund ; and the like practice takes place also in relation
to escheats.* 280.

IV. A charity cannot be altered by any qy. atering
new agreement between the heir of the donor “*""¥-

and the donees.2 281.

1 St. 21192a; Att.-Gen. v. Corp. of Beverley, 6 D. M. & G. 256,
265. But the Statute of Limitations, 3 and 4 Will. IV, c. 27,8. 24,
applies to charities. Magdalen Coll. v. Att.-Gen., 6 H. L. Cas.
189; Att.-Gen. v. Davey, 4 D. & J. 136.

2 St. 2 1186, 1300. 3 See St. 3 1184, 1185.

4 St. 3 1192. 5 St. 4 1175.

13
146 IMPLIED TRUSTS.

CHAPTER V.
OF IMPLIED TRUSTS.

AN implied trust is a trust which is
founded on an unexpressed but presumable
intention! 282.

Definition.

TcRaelas I. Where, in the case of a will or other
ating the :
general instrument, the donor of a power has a gen-

intention of eral intention in favor of a class, and a par-

“power. ticular intention in favor of individuals of
that class to be carried out by the donee of the power,
and the particular intention fails, from its not being
carried out by the donee of the power, the Court will
treat it as a trust, and carry into effect the general in-
tention in favor of the class.” 283.

Thus, if a fund is given to such of a certain class of
persons, or to a certain class of persons in such propor-
tions, as a third person shall appoint, if no appoint-
ment is made, the objects named will take equally.’

* See St. ¢ 1195, 1254.

2 St. 2 1061a; 2 Sp. 82,420; Harding v. Glyn, 2 Lead. Cas. Eq.,
2d ed. 805, et seq.*

8 2 Sp. 83; Salusbury v. Denton, 3 K. & J. 529; Reid v. Reid,
25 Beav. 469; Re White's Trusts, Johns. 656 ; Lambert v. Thwaites,
L. R. 2 Eq. 151.

 

* 1 Perry on Trusts, 3 248-258, t Ib., 4 251, 258.
IMPLIED TRUSTS. 147

But if a person, making no gift himself, merely em-
powers another to give property, the gift must be made,
or no person can claim, though the persons to whom
the intended gift was to be confined are named.' 284.

II. Where property is given upon trust, yy where
and the trusts fail, either entirely or par- st "ils.
tially, by reason of the failure of the intended objects
or purposes, or some of them, or of the illegality or in-
definite nature of the trusts, or some of them, or other-
wise ; or where the trusts are fully and finally fulfilled,
without exhausting all the property out of
which they were to be fulfilled, there is a ee
resulting trust of such property, or of so twine
much thereof as remains unexhausted, to a
the person creating the trust, or to his heir or legal
representatives, unless there is sufficient evidence or
presumption of a contrary intention, or the trust is a
charitable trust.? 285.

But where there is an absolute, and, for cscs
anything that appears to the contrary, a bene- sift, withaa

ineffectual

ficial gift, with an ineffectual or partial trust 07 partial

engrafted on it, the property, or so much as void condi-

tion.

is unexhausted by such partial trust, will
remain in the donee.* And where there is an abso-

1 2 Sp. 84.

2 St. 1196a, 1200; 1 Sp. 510; 2 Sp. 22, 80, 243-6; 1 Cru. T.
12, ¢. 1, ¢ 55, 56; 1 Jarm. on Wills, 2d ed. 475, 482; Att~Gen. ».
Green Hill, 33 Beav. 193.*

3 See 1 Sp. 510; 2 Sp. 23, 80.

 

* See 1 Perry on Trusts, 3 159, 160, 1604; Shaw v. Spencer,
100 Mass. 388; Easterbrooks v. Tillinghast, 5 Gray, 17.
148 IMPLIED TRUSTS.

lute gift, with an illegal condition, the condition is
void, and the donee may retain the whole; as where a
testator bequeathed leasehold property upon condition
that the legatee should assign a particular part to a
charity.’ 286.

III. An implied resulting trust also arises
III. Convey- -
ance with- where a conveyance, transfer, devise, or be-

out a con-

sideration | quest of land or other property, without any
auseor consideration, express or implied, real or

nominal, purports or is proved to have been
made upon trust, but no distinct use or trust is stated.’
287.

If there are any circumstances to show that a trust
was intended, then the onus of proof is on the donee,
to prove that a beneficial gift to him was intended. If
there are circumstances from which it can be made out
that it would be a fraud in the grantee to retain the
property as his own, parol evidence may be given of
such circumstances. If no such circumstances. exist,
the conveyance or transfer, if perfect, will be regarded
as a beneficial gift.’ 288.

If a devise is to an infant or a married woman, the
presumption is against the devise being upon trust;
yet this presumption must yield to the fair construc-
tion of the will, if, according to that, the testator ap-
pears to have intended a trust. 289.

A discretion as to the application of the property

1 2 Sp. 229.

? St. 4 1197, 1199; 2 Sp. 57, 199, 225, 226; Briggs v. Penny, 3
Mac. & G. 546.

3 2 Sp. 199. 4 2 Sp. 225.
IMPLIED TRUSTS. 149

given may be so large, that the gift may amount to an
absolute gift ; as where there is an uncontrolled power
to give away the property as and to whom the donee
may think fit. But if the discretion is limited to cer-
tain general purposes, though they may be too indefi-
nite to be enforced, the donee is a trustee. 290.

IV. Where a person parts with or limits =

nh tee IV. Limita-

a particular estate only, and leaves the resi- Mer :
due undisposed of, the residue results to him, “bee
even though there may be a consideration.”
291.

The heir will take, as personal estate, the benefit of
the surplus interest in a term or other particular in-
terest carved out of the inheritance for a particular
purpose which does not exhaust the whole, as against
the devisee, where the devisee takes only what remains
after the particular interest so given is carved out.’ 292.

A legacy to the heir or next of kin will not:of itself
preclude their claim to the surplus undisposed of. Nor
will a bare intention to exclude, however expressed,
though accompanied by words of anger or antipathy
or even negative words, be sufficient to exclude the
heir in respect of the beneficial interest in real estate
undisposed of, or the next of kin in respect of per-
sonalty, unless it is either specifically or as part of a
fund effectually devised or bequeathed away to some
one else, either directly, or by the same kind of neces-
sary implication as would in other cases be admitted
to constitute an actual gift! 293.

1 2 Sp. 225. 2 St. ¢ 1199. 3 2 Sp. 230. 4 2 Sp. 232.
150 IMPLIED TRUSTS.

Hat V. Before the statute 1 Will. IV, c. 40,
posed of _ where a testator made no express disposition
testaton® of the residue of his personal estate, the

ersonal
estate executors were at Law entitled to such resi-
due; and Courts of Equity, as the Act recites, so far
followed the Law, as to hold the executors to be en-
titled to retain such residue for their own use, unless
it appeared to have been the testator’s intention to ex-
clude them from the beneficial interest therein. In
that case, they were held to be trustees for the person
or persons who would have been entitled to such estate
under the Statute of Distributions, if the testator had
died intestate. And Equity laid hold of any circum-
stance or expression in the will, which might appear
to rebut the presumption of a gift to the executors,
and convert them into trustees for those on whom the
Law would have cast the surplus in case of a complete
intestacy... The stat. 1 W. IV, c. 40, furthers the
views of Courts of Equity, in narrowing the applica-
tion of the rule of Law, by enacting, as to wills made by
persons who should die after the first day of Septem-
ber, 1830, that the executors shall be deemed by
Courts of Equity to be trustees for the persons (if any)
who would be entitled under the Statute of Distribu-
tions in respect of any residue not expressly disposed
of, unless it should appear by the will, or a codicil

1 See St. ¢ 1208 and note; Eleock ». Mapp, 3 Cl. & Fin. 507,
508 ; Underwood v. Wing, 4 D. M. & G. 633, 656, 659; Powell ».
Merrett, 1 Sm. & G. 381; Cradock v. Owen, 2 Sm. & G. 241;
Read v. Steadman, 26 Beay. 495; Saltmarsh 2. Barrett, 29 Beav.
474,
IMPLIED TRUSTS. 151

thereto, that the executors were intended to take such
residue beneficially.’ 294.

VI. Where real estate is directed to be y: ynais-
sold for certain purposes, so much of the real Posdtof |.
estate, or the produce theroof, as is not effec- #! estate.
tually disposed of by the will at the testator’s- death, .
from silence, or the inefficacy of the will itself, or from
subsequent lapse, results to the heir, unless the testator
has sufficiently declared his intention that the produce
of the real estate should be deemed personalty, whether
such purposes take effect or not; and where the sale
is necessary, it results to the heir as personalty ; but
where the sale is unnecessary, it results as part of the
old use, and descends to him as realty.’ If the testator
directs, either expressly or by necessary implication,
that the proceeds of the real estate shall be considered
as having been converted into personalty before his
death, and a fortiori, if he directs that “it shall be
treated as personal estate for every purpose, whether
disposed of by his will or not, and whether as regards
legatees or next of kin,” such a direction operates to
give the next of kin, as against the heir, any portion
of the proceeds that may lapse or may not be effectu-

1 See Harrison v. Harrison, 2 Hem. & M. 237.

2 2 Sp. 233; Ackroyd v. Smithson, 1 Lead. Cas. Eq., 2d ed. 690,
et seg.; Taylor v. Taylor, 3 D. M. & G. 190; Robinson v. Gover-

nors of London Hospital, 10 Hare, 19; Buchanan v. Harrison, 1
Johns. & H. 662, 675.*

 

* See also Craig v. Leslie, 3 Wheat. 577, 578, 579, where the
whole subject is elaborately discussed in the opinion of the Court,
delivered by Mr. Justice Washington.
152 IMPLIED TRUSTS.

ally disposed of! But a mere direction that the pro-
ceeds of the real estate “shall be deemed part of the
personal estate,” or even that they shall be “con-
sidered to all intents and purposes part of the personal
estate,” or “shall be a fund of personal and not of
real estate,” or a reference to a mixed fund by the
name of “ personal estate,” is not sufficient to give the
surplus of the real estate to the nextof kin. And any
purpose, however limited (as payment of costs), apparent
upon the face of the will, with reference to which the
conversion might have been directed, is conclusive
against the next of kin.’ 295.

If a testator converts his real estate for all the pur-
poses of his will, so as to affect the character of the
property as between the real and personal representa-
tives of persons taking under the will, that will not
prevent the heir from taking any part which is undis-
posed of, by way of resulting trust.2 But what he so
takes will vest in him as personal estate,* unless the
other parts are devoted to the payment of charges, and
he chooses to pay them off, and thereby prevent the
sale, and take the estate.’ 296.
iain Where real estate is not made a subsidiary
GF UNE OE fund, but a testator creates from real and

personal estate a mixed and general fund,
and directs the whole of that fund to be applied for
certain purposes, as for the payment of debts and lega-

1 2 Sp. 237. :

2 2 Sp. 288; Taylor v. Taylor, 3 D. M. & G. 190; Robinson »v.
Governors of London Hospital, 10 Hare, 19.

3 2 Sp. 234. 42 Sp. 242. > 2 Sp. 234,
IMPLIED TRUSTS. 153

‘cies, there-he in effect directs that the real and personal
estates, which have been converted into that fund, shall
answer the stated purposes pro ratd according to their
respective values. If any of those purposes fail, then
the part of the fund which upon this principle would
otherwise have been applicable to those purposes, is
undisposed of. So far as that part of the fund has
been composed of real estate, the heir is to have the
benefit of it, as so much real estate undisposed of,
whether the estate be eventually sold or not; and so
far as that part of the fund has been composed of per-
sonal estate, it is personal estate undisposed of, for the
benefit of the next of kin.) 297.

Where money is bequeathed to be laid out yysisposea
in land, the same principle applies as where of part of

money di-

land is directed to be converted into money; [eivetea”

the conversion will operate only so far as the Prue’

will disposes of the land into which it is to ‘°°
be converted ; so that if the land is devised for a limited
estate only, the produce of the fund, or the fund itself,
if unconverted, beyond the interest so given, will re-
sult to the testator’s next of kin, as personalty, unless
it is given away to some other person.’ 298.

Where real estate is settled by deed, upon Failure of
trust to sell for certain specified purposes, erent
and one of those purposes fails, there, whether aan
the trust for sale is to arise in the lifetime of

the settlor or not until after his decease, the property

1 2 Sp. 235.
2 2 Sp. 235; Reynolds v. Godlee, Johns. 536, 582.
154 IMPLIED TRUSTS.

to that extent results to the settlor, as personalty, from
the moment that the deed is executed, and not to his
heir, either as real or as personal estate. or, the deed
takes effect the moment it is executed, and a construc-
tive conversion immediately takes place by force of the
direction to convert, although the actual conversion is
not to take place until after the settlor’s death.’ But
where the whole of the purposes for which the conver-
sion is directed fail from the moment of the execution
of the deed, there the Court regards the case as if no
conversion had been directed, and the property results
to the grantor as real estate.’ 299.
ees Where, in the events that happen, the con-
the object templated object for which a conversion of
yersion u- Jand into money or money into land is di-
rected by will to be made, does not exist, the
Court will not vary the property from that state in
which it was found at the death of the testator; for
where the purpose fails, the intention fails.’ But
where any event has happened on which the conver-
sion ought to take place, though the object for the con-
version afterwards ceases to exist, or partially fails, the
property will be treated as if converted. 300.

1 Clarke v. Franklin, 4 K. & J. 257.

? See Lord Eldon’s remarks in Ripley ». Waterworth, 7 Ves.
435, and V.-C. Wood’s remarks in Clarke v. Franklin, 4 K. & J.
265.

® 2 Sp. 234, 261; Buchanan v. Harrison, 1 Johns. & H. 662,
673.

* See 2 Sp. 262; Bagster v. Fackerell, 26 Beav. 469; Wall ».
Colshead, 2 D. & J. 683.
IMPLIED TRUSTS. 155

VII. Implied trusts are often created by cr
charges. Where a testator devises an estate Charges.

Devise or

or makes a bequest in trust to pay debts or bequest in
trust to pay

other charges, no beneficial interest. passes to cee
the devisee, or legatee, but he is a mere

trustee for the payment of debts or charges, and as to
the residue, after payment thereof, a trustee for the
heir or next of kin. But where property is pevise or
devised or bequeathed, charged with or sub- [y3vsSi
ject to debts or other charges, the whole bene- 7.0 Gtbts
ficial interest passes to the devisee or legatee, *™°°>*"8**
subject only to the payment of the debts or other
charges.’ 301.

In the interpretation of wills, favor. to _
creditors has been an acknowledged princi- name of
ple of construction.” And real estate may ce
be charged by will with the payment of debts, even
by a mere expression of an intention that the testator’s
debts should be paid, without any other indication that
they are to be paid out of the real estate, and whether
such expression is contained at the beginning of the
will or in any other part. But if a testator directs a
particular person to pay, it is natural to presume that
the testator intended him to pay out of the funds with
which he is intrusted, and not out of other funds over
which he has no control ; and if the executor is pointed

1 Sti 2 2245; 2 Sp. 23,n. (6), 226; Heptinstall v. Gott, 2 Johns.
& H. 449; Clarke v. Hilton, L. R. 2 Eq. 810.*

2 2 Sp. 327, n. (g).

 

* See also Craig v. Leslie, 3 Wheat. 582, 583; 2 Perry on Trusts,
3 559, et seq.
156 IMPLIED TRUSTS.

out as the person to pay, that ordinarily excludes any
presumption that other persons, not named, are to pay,
or that the debts are to be paid out of the real estate.’
But when a will contains a direction to the executor to
pay the testator’s debts, and then a devise of real estate
to him, it is considered that the testator has imposed
upon the executor the duty of paying the debts to the
extent of the property given to him, and accordingly
the realty is held to be charged with the debts.? 302.
ecteaeoe Where lands are subjected by deed to
charge. payment of debts, they will stand charged
with such debts only as were owing at the time of
making the deed, unless a contrary intention appears
on the face of the deed. But the reverse is the case
where the charge is by will.? 303.

caneask If a legacy is given generally, the legatee
‘egacies. must resort to the personal estate only.‘
But it may be charged on real estate either expressly
or by plain implication.? Thus, where a testator makes
a provision in the same clause for payment of debts
and legacies together, the natural inference is that he
intends both to be paid in the same way; and, there-

‘See St. 3 1246, 1247, 1247a; 2 Sp. 320-2; Silk v. Prime, 2
Lead. Cas. Eq., 2d ed. 82, 95, et seq.

? Harris v. Watkins, Kay, 438; Hartland v. Murrell, 27 Beav.
204.*

8 2 Sp. 352, 353. { 2 Sp. 327, 334, 342.

5 See 2 Sp. 327-9, 342.

 

* St. Eq. Jur. 3 1087 b.
IMPLIED TRUSTS. 157

fore, if the debts are payable out of a mixed fund, so
will be the legacies. So when a devise is made in a
residuary form, and yet there is no previous devise, leg-
avies are thereby made a charge upon the real estate ;
it being considered that the word residue must mean
the residue of the real estate after payment of the leg-
acies thereout. But even where there has been a pre-
vious devise, which was sufficient of itself to account
for the residuary form of a subsequent devise, it has
been held that such residuary form rendered legacies a
charge upon the real estate, especially where the exec-
utor was residuary -devisee.’ 304.

A general charge of legacies on real and personal es-
tate, even though expressed to be on “all the testator’s
estates of every description, both real and personal,”
will not render real or personal estate specifically de-
vised or bequeathed liable to pecuniary legacies, in case
of a deficiency in the personal estate, for, the specific
devisee or legatee is as much an object of the testator’s
bounty as the pecuniary legatee.? 3085.

Even where real estate is charged, it will not be held
to be liable until after the general personal estate is

1 2 Sp. 828; Silk v. Prime, 2 Lead. Cas. Eq., 2d ed. 98, et seg. ;
Francis v. Clemow, Kay, 485, and cases there cited; Harris v.
Watkins, Kay, 4838; Wheeler v. Howell, 3 K. & J. 198; Greville
». Browne, 7 H. L. Cas. 689; In re Brooke, Brooke v. Rooke, L.
R. 3 Ch. D. 630.*

2 Coote Mortg., 3d ed. 476; 6 Cru. T. 38, c. 16, ¢ 21; Conron »v.
Conron, 7 H. L. Cas. 168.

 

* 2 Perry on Trusts, 570; Tracy v. Tracy, 15 Barb. 503.
+ 2 Perry on Trusts, 2 573; Bardwell v. Bardwell, 10 Pick. 19.
158 IMPLIED TRUSTS.

exhausted, unless there is an intention to exonerate the
personal estate ;! as where nothing is given to the leg-
atee, but a sum to be raised out of the real estate or
where a portion of the real estate or its produce is appro-
priated as a fund for payment of the legacies.’ 305a.
Whether real estate is subject to debts or
giving effect legacies, or both, by way of trust, or of
to charges. :
charge, or of legal power in the nature of a
trust, the estate can only be turned into money, and the
proceeds distributed, in case of dispute or difficulty,
through the agency of a Court of Equity.’ 306.

Where an authority to sell is given to a particular
person, the vendee takes under the will; any right or
title in the heir is excluded, and there is no need of his
joining in the sale.* 307.

A charge for payment of debts gives the creditors a
priority over the special purposes of the devise? 308.

‘Where the estate is charged with annuities, it is not
the course to discharge the lands; they will still be
charged in the hands of a purchaser.6 309.

Where annual and gross charges are to be raised out
of the rents and profits or by sale or mortgage, if those
words are evidently used in contradistinction, the an-
nual charges will be raisable out of the annual rents
and profits, and the gross charges by sale or mortgage.”
But a Court of Equity will in general consider a charge
on the rents and profits to raise portions, legacies, or
_debts, as a charge on the land, if ‘such charge is not

restrained to the annual profits, and will imply a power

‘2Sp. 388. 2 2S8p.342. %2Sp.365. + 2 Sp. 366.
6 28p.368. 6 2S8p,369. 7 2 Sp. 370.
IMPLIED TRUSTS. 159

to sell or mortgage.’ And yet if no time for payment
is appointed, as a general rule a sale will not be decreed,
but it must be raised in the manner directed. 310.
VIII. Where a person buys freehold, yr con
copyhold, or leasehold lands and pays the yeyance,3*

signment,
purchase-money for it, but takes the convey- 91 Surly,

in another's
ance or assignment in his own name and ™"*
that of another or others, or exclusively in the name
of another or others whether jointly or successively,
the trust of the legal estate will result to the person
who advanced the purchase-money ; for it is presumed
that the real purchaser intended the purchase to be for
his own benefit, and took it in the name of another or
others merely to answer some collateral purpose. The
same doctrine is applied to securities taken in the name
of a third person.’ And proof of the payment of the
purchase-money by the real purchaser may be fur-
nished either by the language of the deed itself, or by
some memorandum or note of the nominal purchaser,
or by his admissions in legal proceedings, or by papers
left by him and discovered after his death.“ 311.

In like manner there will be a resulting

: : Purchase or
trust, where stock is purchased in the names transfer of

: stock or
of the purchaser and a stranger, or is trans- delivery of

ferred by the owner into the names of him- pee

1 2 Sp. 406; Lord Londesborough v. Somerville, 19 Beav. 295 ;
Metcalfe v. Hutchinson, L. R. 1 Ch. D. 591.

2 2 Sp. 406.

3 St. ¢ 1201, 1201a; 1 Sp. 511; 2Sp. 201, 219: Dyer v. Dyer,
1 Lead. Cas. Eq., 2d ed. 165, et seq.*

4 St. @ 1201, note; 2 Sp. 202.

 

* Adams’s Eq. 33, note.
160 IMPLIED TRUSTS.

self and a stranger. But if a man delivers money or
transfers stock to another, even though he is a stranger,
no implied trust will arise unless upon evidence.’ 312.
No resulting trust will be raised where a

Where a re-
sulting contrary intention, unrebutted by other evi-
butted; dence or grounds of presumption, is indicated
by the terms or the object and purpose of the instru-
ment creating the trust, or is established by written or
parol evidence, or may be presumed from the relation
between the parties.” And hence, in general,

h . *
Purehase or there will be no resulting trust where a pur-

ial i the chase is made or a security is taken by a hus-
wife or "* band or a father (either solely or jointly with
child, : .

his own name or that of a stranger) in the
name of a wife, or in the name of a legitimate child, or
an illegitimate child, if treated as a child, who is un-
provided for, or considered by the husband or father
as unprovided for, or as insufficiently provided for;
or by a grandfather in the name of his grandchild un-
provided for, or considered by him as unprovided for,
or as insufficiently provided for, where the father is not
living; or by a widowed mother in the name of her
child ; because it will be presumed that it was intended
as an advancement and provision in discharge of a
moral obligation, or as a tribute of affection; unless

1 2 Sp. 219.

2 St. 21196a, note, and 1202; Beecher v. Major, 2 Dr. & Sm.
431.*

 

* As the resulting trust is mere matter of equitable presump-
tion, it may be rebutted by facts that negative the presumption.
See 1 Perry on Trusts, 4 139, and cases there cited.
IMPLIED TRUSTS. 161

there are circumstances which furnish a strong pre-
sumption of a contrary intention; such as a contempo-
raneous declaration or act to manifest an intention that
the party should take as a trustee. A subsequent act
or declaration will not suffice to negative an advance-
ment. Nor will possession or receipt of the rents by
the person who advanced the money, where it may be
fairly regarded as having been had as a trustee for the
other party.’ But the presumption of advancement
may be negatived by the oath of the husband or father
that no advancement was intended ;’ or by his both re-
ceiving and applying the income in the same way as
that of his general property? 313.

In other cases where the relationship is not such as
to ground a presumption of advancement, the recogni-
tion of relationship and expressions of affection or re-
gard ought to be looked to in determining whether a
beneficial gift was intended.* 314.

1 Dumper 7. Dumper, 3 Gif. 583; Drew v. Martin, 2 Hem. &
M. 130; Williams v. Williams, 32 Beav. 370; Tucker v. Burrow,
2 Hem. & M. 515; Sayre v. Hughes, L. R. 5 Eq. 376; Hepworth
v. Hepworth, L. R. 11 Eq. 10; Stock v. McAvoy, L. R. 15 Eq.
55; Batstone v. Salter, L. R. 19 Eq. 250; 10 Ch. Ap. 431; and
see next paragraph.*

2 Devoy v. Devoy, 38. M. & G. 403.

3 Bone v. Pollard, 24 Beav. 283. In re Eykyn’s Trusts, L. R.

6 Ch. D. 115.
4 St. 2 1202-5, and note; 2 Sp. 214-219, 227, 228; Jeanes v.

Cooke, 24 Beay. 513, 521.

 

* See also 1 Perry on Trusts, 3 146, 147, and cases there cited.
+ 1 Perry on Trusts, ¢ 144, 147.
14
162 IMPLIED TRUSTS.

1x. Limit. | LX- Limitations which confer an estate in

tions which joint tenancy at Law, have the same effect

aie Ajoint in Equity, when there are no circumstances

sali which afford grounds for a departure from
the rule of Law. So that where two or more persons
purchase lands, and advance the money in equal shares,
and take a conveyance to them and their heirs, this is
a joint tenancy. But joint tenancy is not favored in
Equity; indeed Courts of Equity will lay hold of any
circumstances which will enable them to vary in this
respect from their practice of following the Law.
Foint Thus, if two persons advance a sum of money
mortgage. _by way of mortgage, and take a mortgage to
them jointly, and one of them dies, his representatives
will be entitled to his proportion as a trust. So if two
ieee. persons jointly purchase an estate, and pay
purchase. ynequal proportions of the purchase-money,
and take the conveyances in their joint names; in case
of the death of either of them, there will be no sur-
vivorship, but they will be deemed to be purchasers in
the nature of partners, and to have intended to hold
the estate in proportion to the sum which each ad-
vanced.’ And where real or personal estate is pur-
chased for partnership purposes in trade, and on part-
nership account, the legal estate, in whomsoever it may
be vested, is in Equity deemed to be partnership prop-
erty not subject to survivorship.? 315.

~ T St. 3 1206; 2 Sp. 206, 207, n. (a), 214; Lake ». Craddock, 1
Lead. Cas. Eq., 2d ed. 145, et seq.
° St. 2 1207; 2 Sp. 207; 2 Bl. Com. 399, ..
IMPLIED TRUSTS. 163

_ X. When a person has covenanted to lay menu
out money in the purchase of land, or to pay nant or’

* * trust to
money to trustees to be laid out in the pur- purchase

chase of land to be settled, if he afterwards aa
purchases land to himself and his heirs, but does not
settle it, the land will be subject to the trusts upon
which the land to be purchased was to be settled; for,
unless the contrary clearly appears, it will be presumed
that he purchased in fulfilment of his covenant, upon
the principle that acts capable of being considered as
done in fulfilment of an obligation shall be so con-
strued." And where a trustee or agent is bound by a
trust to lay out money in land, if he actually lay it out,
the act will, if possible, be presumed to have been done
in execution of the trust.2 316.

XI. It isa general rule, that if asettlor
covenant to convey and settle lands, without nantto
specifying any in particular, such covenant

1 St. 1210; 2 Sp. 204-6; Wilcocks 0. Wilcocks, 2 Lead. Cas.
Eq., 2d ed. 345, et seg.; Blandy ». Widmore, Id. 347, et seq.*

2 2 Sp. 204-6; Manningford v. Toleman, 1 Coll. C. C. 670; Ex
parte Poole, 11 Jur. 1005.

 

* Two rules of construction have been adopted by Courts ; first,
“~wherever a trust is created, a legal] estate, sufficient for the pur-
poses of the trust, shall, if possible, be implied in the trustee, what-
ever may be the limitation in the instrument, whether to him or
his heirs, or not.’ Neilson v. Lagow, 12 How. Sup. Ct. 98 ; Sears v.
Russell, 8 Gray, 86. And second, “although a legal estate may be
limited to a ‘trustee, as to him and his heirs, yet it shall not be car-
ried further than the complete execution of the trust necessarily
requires.” Norton v. Norton, 2 Sand, 296 ; see cases cited in 1 Perry
on Trusts, 2 312.
154 IMPLIED TRUSTS.

will not constitute a specific lien on his lands, and the “_

covenantee will be deemed a creditor by specialty only,’
for he may have intended to purchase land for the pur-
pose, instead of settling any part of the land he then
had. 317.
ee XII. Where an assignor of a debt has
lateral collateral securities for the debt, the assignee
foradebt will be entitled to the full benefit of such
assigned. yas epee a

securities, unless it is otherwise agreed be-
tween the parties. Thus, the assignee of a debt se-
cured by a mortgage will, in Equity, be held entitled
to the benefit of the mortgage.” 318.
xu trust XLII. Equity implied a trust as to orna-
as te a> mental timber in favor of the objects of sub-
timber. sequent limitations. So that a tenant for
life, or a tenant in fee, with an executory devise over,
might be restrained from abusing his legal power, by
cutting down ornamental timber, which is called equi-
table waste.’ 319.

By the Judicature Act, 1873,’ it is enacted that “an
estate for life without impeachment of waste shall not
confer or be deemed to have conferred upon the tenant
for life any legal right to commit waste of the descrip-
tion known as equitable waste, unless an intention to
confer such right shall expressly appear by the instru-
ment creating such estate.” 319a.

1 St. 3 1249. 2 St. 2 1047 a.

3 2 Sp. 305; Garth v. Cotton, 1 Lead. Cas. Eq., 2d ed. 559, et
seq.; Turner v. Wright, Johns. 740.

* 36 and 37 Vict. c. 66, 2 25 (8).
IMPLIED TRUSTS. 165

XIV. An implied trust arises in favor of yyy. qrust
the wife, when she joins with the husband in {i"isesea
effecting a mortgage upon her property, and P*°Per'y-
there is no recital and no special circumstances to show
that her interest was intended to be changed beyond
the creation of an incumbrance, and yet the equity of

redemption is reserved to the husband.’ 320.

.

1 2 Sp. 306; Earl of Huntingdon v. Countess of Huntingdon, 2
Lead. Cas. Eq., 2d ed. 838, et seg.
166 CONSTRUCTIVE TRUSTS.

CHAPTER VI.

OF CONSTRUCTIVE TRUSTS.

IMPLIED trusts and constructive trusts, as already
observed, are frequently confounded or classed
Tmplied ang together; and the same trusts are sometimes
ctten con. designated by the name of implied trusts,
founded. and at other times by that of constructive
trusts. 321.
Detinition Ree dtp ae as on uae
Cree press and from implied trusts,
One may be defined to be a trust which is raised
by construction of Equity, in order to satisfy the de-
mands of justice, without reference to any presumable
intention of the parties.’ 322.
I. A constructive trust may arise where a
J. Repairs . os .
or improve- Person who is only joint owner, acting bond
fide, permanently benefits an estate by re-
pairs or improvements; for, a lien or a trust may arise
in his favor, in respect of the sum he has expended in
such repairs or improvements. So, where a person
lawfully in possession under a defective title, has made
1 1 Sp. 509, note (a). '
2 See St. 2 1195, 1254; 1 Sp. 509.*

 

* 1 Perry on Trusts, 112.
CONSTRUCTIVE TRUSTS. 167

permanent improvements, if relief is asked in Equity
by the true owner, he will be compelled to allow for
such improvements; for, he who seeks for Equity
must do Equity.’ But if a tenant for life thinks fit,
of his own discretion, or with the consent of trustees,
to expend money in improvements, he is not entitled
to have the money repaid out of the corpus; so that if
he becomes the purchaser of the property, he will not
be entitled to a deduction from the purchase-money in
respect of the improvements.” 323.
II. So, where executors, by mistake, but

bond fide and without fault, have paid lega- afleeiere

tees or distributees before a due discharge of tees before
all the debts, the latter are treated as trustees noe
for the purpose of paying the debts; because they are
not entitled to anything except the surplus of the
assets, after all the debts are paid? 324.

ITI. Where a person is under a covenant jr cove.

or agreement, for valuable consideration, to 72% etrent

convey, transfer, or pay money or other prop- freseeGr

erty to or for the use or benefit of another, Srither ”
a constructive trust arises in favor of the PP”
latter against the former and his representatives, and
those claiming under him as volunteers or with notice
of the covenant or agreement; because, where things
are covenanted, or agreed to be done, Equity treats them,
for many purposes, as if they were done.* 325.

1 St. #1234-7; 2Sp. 206; 2 Lead. Cas. Eq., 2d ed. 520; Kay

v. Johnston, 21 Beay. 536. /
2 Dixon v. Peacock, 3 Drew. 288, 292.

3 St. 21251; 28p.207.- .- - 4 See St. 3 1212, 1231. ”
168 CONSTRUCTIVE TRUSTS.

Hence, where the Court is satisfied by parol evi-
dence that a marriage took place on the faith of repre-
sentations as to a settlement, it will direct a settlement
in accordance with those representations, as against the
person making them or his devisees.' 326.

And so a constructive trust arises when
and yeasons the purchase-money of an estate is not paid.
vendor's In such case the vendor has a lien on the

property in Equity; that is, a hold upon it
for the satisfaction of the purchase-money ; and to the
extent of the lien, the purchaser becomes a trustee for
the vendor.? And although, in some cases, it is rea-
sonable to presume a tacit consent or agreement that
the vendor should have such a lien, yet the lien is not.
strictly attributable to such a consent or agreement,
but is founded on the most obvious principles of
natural justice. 327.

In general, the vendor has such a lien;
aupinatly and the burden of proof is on the purchaser,
oto establish that in the particular case it has
been intentionally displaced or waived by the consent
of the vendor.‘ Though, on the face of the conveyance,
the consideration is expressed to be paid, and even if a
receipt is indorsed on the back of the conveyance, and
yet the money has not actually been paid, the vendor
has a lien.© And if a security has been taken for the

' Prole v. Soady, 2 Giff. 1.*

* See St. @ 1215, 1217-1220; Mackreth ». Symmons, 1 Lead.
Cas. Eq., 2d ed. 235, et seq.

3 See St. 2 1219, 1220. “ St. 2 1224, 5 St. 1225.

 

* St. Ey. Jur. 987 a.
CONSTRUCTIVE TRUSTS. 169

money, the burden of the proof has been adjudged to lie
on the purchaser, to show that the vendor agreed to rest
on the security and to discharge the land ; or, at most,
the taking of a security has been deemed to be no more
than a presumption, under some circumstances, of an
intentional waiver of the lien, and not as conclusive of
the waiver.’ 328.

Where the vendor has a lien against the __
vendee, it continues, notwithstanding any ance”
devolution or transfer of the estate, except cao
where it is extinguished by the countervailing Equity
of a bond fide purchaser for valuable consideration
without notice, when clothed with the legal title. 329.

So that it exists against the vendee and __
his heir, and against volunteers claiming wernt
under him; against purchasers under him, a
with notice that he had not paid the purchase-money ;
against purchasers even without notice, having an
equitable title only; against assignees claiming by a
general assignment under the bankrupt and insolvent
laws; against assignees claiming under a general as-
signment made by a failing debtor for the benefit of
creditors; and against a judgment creditor of the
vendee, at least before an actual conveyance of the es-
tate has been made to him.? For, in each: of these
cases (except that of the bond fide purchaser for valu-
able consideration without notice, who has only an
equitable title), the party in possession has obviously
no more equity against the lien of the vendor, than the

’ St. 2 1226. 2 See St. Z 1228,
15
170 CONSTRUCTIVE TRUSTS.

vendee himself had, but clearly stands in the same situ-
ation and subject to the same equity. And although
the bond fide purchaser without notice, who has only
an equitable title, has an equity quite distinct from
that of his vendor, the first vendee, yet the equity of
such purchaser to retain what he has paid for is only
equal to that of the first vendor to be paid for that
which he has parted with; and when the equities are
equal, and neither of the parties has the support of the
legal title, the maxim applies, Qui prior est tempore,
potior est jure. 3830.

But the lien will not prevail against a bond fide pur-
chaser for valuable consideration from the vendee,
where such purchaser has paid his purchase-money,
and taken a conveyance of the legal estate, and had no
notice, at the time of paying his money, that such
vendee had not paid the purchase-money;’ because,
having given a valuable consideration for the estate,
without notice, he has as much equity to retain what he
has so paid for, as the original vendor has to be paid
for that which he has parted with; and, having this
equal equity, the Court will not take from him the
legal title with which he has clothed himself, but will
act upon the maxim, that where the equities are equal,
the law shall prevail; so that in this case, the vendor’s
lien is virtually extinguished by the countervailing
equity of the purchaser from the vendee. But where
a vendee has sold the estate to a bond fide purchaser
without notice, if the sub-purchase-money has not been

’ St. @ 1228, 1229,
CONSTRUCTIVE TRUSTS. 171

paid, the original vendor may proceed against the
estate for his lien, or against the sub-purchase-money
in the hands of such purchaser.' 331.

Where the vendee has sold only a part of it, the
part retained by him is primarily chargeable with the
lien. Where he has sold different parts to different
persons, the lien is to be borne ratably between them.”
332.

IV. If a trustee, or other person standing 1¥. Prop:
in a fiduciary relation, acquires property or ty 9°

makes a profit by means of transactions with- prodieaae
in the scope of his agency or authority, or if 42,845,
a person employs another’s property in any “°"-
trade or speculation, there will be a constructive trust,
as to the property so acquired or the profits so made,
for the benefit of the cestui que trust, principal, owner,
or other party standing in the opposite relation. So
that, if a trustee should purchase a lien or mortgage
on a trust estate at a discount, he would not be allowed
the benefit of the difference, but the purchase would
be a trust for the cestui que trust. So if a trustee or a
partner should renew a lease of the trust or partner-
ship estate, he would be a trustee of such renewed in-
terest for his cestui que trust or copartner, even though
the lessor may have refused to grant a renewal to the

. St. 2 1232. 2 St. 2 1233 a.

5 See St. @ 1211, 1211 a, 1261; 1 Sp. 512; 2 Sp. 208, 299, 300;
Fox v. Mackreth, 1 Lead. Cas. Eq., 2d ed. 92, et seg.; Robinson ».
Pett, 2 Lead. Cas. Ex., 2d ed. 206, et seq.*

 

* 1 Perry on Trusts, 3 197, and cases there cited ; Staat v. Ber-
gen, C. E. Green, 297, 308, 554, 559.
172 CONSTRUCTIVE TRUSTS.

cestui que trust or copartner.' So if an agent, who is
employed to purchase for another, purchases in his
own name or on his own account, he will be held to be
a trustee for the principal, at the option of the latter.’
And the same principle applies as between a company
and one of the directors.’ 333.

v. Renewal : Upon analogous principles if a mort-

of lease b 5 saa g
coenen” gagee or a person having a limited interest

having@ in leasehold property, renews the term on

ae his own account, he will be held to be a
trustee for all the persons interested in the old lease.*
334.

The person so converted into a trustee of a renewed
lease is entitled to the costs and expenses of renewal,
with interest, and to compensation for repairing, build-
ing, and lasting improvement; and he may retain the
renewed lease to secure the payment.’ 338.

vi. wrong. VL. In general, whenever property of one

fulconver- kind has been wrongfully converted into

alienation

Beata property of another kind, by a trustee or
Property. agent, the right in rem of the principal or
cestui que trust ceases, if the means of ascertainment
fail; which of course is the case when the subject-

1 St. 32211; 1 Sp.512; 2Sp. 208, 299, 300; Keech v. Sandford,
1 Lead. Cas. Eq., 2d ed. 36, et seg. ; Clegg v. Edmondson, 8 D. M.
& G. 787.*

2 St. 3 121lla.

5 Liquidators of the Imperial Mercantile Credit Association v.
Coleman, L. R. 6 H. L. 189.

41 Sp. 512; 2 Sp. 299, 302, 308. 5 2 Sp. 304.

 

* 1 Perry on Trusts, 2 196, and cases there cited.
CONSTRUCTIVE TRUSTS. 173

matter is turned into money,and mixed and con-
founded in a general mass of property of the same de-
scription. But if the property which has been so sub-
stituted can be ascertained to be such, it will be liable
to the rights of the cestui que trust or principal to
which the property converted was subject.! 336.

But in cases of this sort, the cestui que trust or ben-
eficiary is not at all bound by the act of the other
party. He has an option to insist on having that into
which the trust property has been converted, or to dis-
claim any title thereto, and resort to any other remedy
to which he is entitled, either in rem, or in personam.’
But he cannot insist on repugnant claims; so that, in
the case of a sale of stock by a trustee or executor, in
violation of his trust, the party beneficially entitled
may either oblige the trustee or executor to replace the
stock, or he may affirm his conduct and take the sum
at which he has sold it, with interest and any further
profits he may have made by the sale; but the party
beneficially entitled cannot insist on having the stock
replaced, and having the interest instead of the divi-
dends, or on taking the money, and having the divi-
dends as if the stock had remained.’ 337.

If, however, the trustee conveys the trust property
to a bond fide purchaser for valuable consideration, who
has paid his purchase-money, and had no notice of the

? See St. 3 1258, 1259, 1260; 2 Sp. 303; Robinson ». Pett, 2

Lead. Cas. Eq., 2d ed. 206, et seg.*
2 St. 2 1262. 3 St. 3 1263.

 

* May ». Le Claire, 11 Wall. 217.
174 CONSTRUCTIVE TRUSTS.

trust at the time of paying the same, the trust is ex-
tinguished. But if the trustee should afterwards re-
purchase or otherwise become entitled to the same
property, the trust would be revived by construction of
Equity.’ And if a trustee conveys or assigns the trust
property for valuable consideration, in violation of the
trust, to a person who is aware of that circumstance, or
conveys or assigns it without valuable consideration,
even to a person who has no notice, such person will
be treated as a trustee for the cestui que trust. And
an executor is deemed a trustee of the assets of his tes-
tator.’ 338.

aces VII. Where a person has a mortgage in
ofmort- fee which he has not foreclosed, the legal
gaged sia'*- estate in the mortgaged premises descends to
his heir; but by construction of Equity he is trustee
for the personal representatives, and through them for
the persons entitled to the personal estate of the mort-
gagee.” 339.

VIII. When a debt is due from an ex-
due from” ecutor, he is converted into a trustee of the
exeeu'er’ debt. for the parties interested in the estate.‘
340.

 

1 See St. @ 1264, and note; 2 Sp. 40, 195, 196; Basset v. Nos-
worthy, 2 Lead. Cas. Eq., 2d ed. 1, et seg.

? St. 2 1257; 1 Sp. 512; 2 Sp. 40, 195, 298.

* 2Sp. 296; Thornborough »v. Baker, 2 Lead. Cas. Eq., 2d ed.
857, et seq.

4 2 Sp. 296.
TRUSTEES, EXECUTORS, ETC. 175

CHAPTER VII.

OF TRUSTEES AND OTHERS STANDING IN A
FIDUCIARY RELATION.

I. ALL persons who are natural-born , w,, cap
British subjects,(a) excepting persons at- be trustees.
tainted, but not excepting femes covert and infants,
may be trustees. And the Supreme Court will ap-
point a feme sole to be a trustee.’ 341.

II. If a person who is appointed executor
proves the will, he becomes liable for the ane
performance of ihe duties of the office; and oe
if he is also appointed trustee, the taking probate is an
acceptance of the entire trust.’ 342.

III. If a man appoints a trustee of real 1) pevolu-
or personal estate, without naming his heir or Hay fa”
personal representative, the heir or personal “™*
representative does not become a trustee, although the
property may vest in such heir or representative. And
where two or more persons and the survivor and the
heirs of the survivor. are appointed trustees, and the

1 2 Sp. 32.
2 In re Campbell’s Trusts, 31 Beav. 176.*" 3 2 Sp. 918.

 

(a) As to aliens, see Smith’s Compendium of the Law of Real
and Personal Property, 5th ed., p. 1244, et seg.
* 1 Perry on Trusts, 51.
t
176 TRUSTEES, EXECUTORS, ETC.

word “assigns” is not introduced, the sole or surviv-
ing trustee cannot delegate the trust either by act inter
vivos or by devise.’ A trustee cannot, without the
consent of his cestui que trust or of the Court, denude
himself of the character of trustee, till he has performed
the trust. If, without such consent, he assigns the
trust or delegates the performance of its duties to a
stranger, he will be answerable for the breaches of
trust committed by the assignee or stranger.” 343.

IV. Itisarule in Equity, which admits
nererwants Of 10 exception, that where a trust exists, a
eimste’ Court of Equity never wants a trustee. For
wherever a perfect trust, as opposed to a trust resting
in contract or in fieri, or even an imperfect trust, if
supported by a valuable consideration, has once at-
tached, whether it is an express, an implied, or a con-
structive trust, and it is not extinguished by the coun-
tervailing equity of a bond fide purchaser for valuable
consideration without notice or other person having a
conflicting equity, nor has otherwise ceased to subsist,
Equity will follow the legal estate, and decree the
person in whom it is vested to execute the trust. And
the lapse of the legal estate never has the least influ-
ence on the trusts to which it is subject; if the indi-
viduals named fail, whether by death, incapacity, or

1 2 Sp. 38.* 2 2 Sp. 920.t

9 Sec St. @ 976, 1159, 1162; 1Sp. 501; 2Sp. 51, 52, 369, 875,
876.t

 

* 1 Perry on Trusts, 2 294, 340.
+ Ib. 4 285, 287.
t Ib. 3 45, 248, 427,
TRUSTEES, EXECUTORS, FTC. 177

refusal, the Court will provide a trustee ; if no trustees
are appointed at all, the Court assumes the office in
the first instance. 344,

V. Trustees, executors, directors of pri-
vate companies, and other persons standing an
in a similar situation, are not allowed, even cata
with the consent of their co-trustees, co-executors, or
coadjutors, and, however extraordinary the services
they may have rendered, to take any remuneration by
way of commission, or brokerage, or salary, without
some express or implied provision for that purpose in
the instrument under which they claim.2. And a solici-
tor, who is a trustee, is not entitled to charge for busi-
ness done by him in relation to the trust, as distin-
guished from costs out of pocket, although employed
to do it by his co-trustee, unless there is a provision in
the deed or will creating the trust, enabling him to
receive remuneration for the transaction of such busi-
ness.’ And even where there is a provision that a
solicitor is to be at liberty to charge for his professional

1 2 Sp. 876.

2 St. 3 466 a, 1268; 2Sp. 945, 946; Barrett v. Hartley, L. R. 2

Eq. 789.*
3 Robinson v. Pett, 2 Lead. Cas. Eq., 2d ed. 206, et seg. ; Brough-

ton v. Broughton, 2 Sm. & Gif. 422; 5 D. M. & G. 160.+

 

* The rule to disallow compensation to trustees has not been
generally adopted in the United States. See Meacham ». Sterne, 9
Paige, 399; Dewey v. Allen, 1 Pick. 147; 1 Perry on Trusts, @
432. See also as to rules and rate of compensation in the various
States, 2 Perry on Trusts, 3 917a, and note.

+ 1 Perry on Trusts, ? 432; Morgan v. Homans, 49 N. Y. 667.
178 TRUSTEES, EXECUTORS, ETC.

services, he is only entitled to charge for services
strictly professional, and not for matters which an ex-
ecutor or trustee ought to have done without the inter-
vention of a solicitor; such as for attendances to pay
premiums on policies, to make transfers at the bank,
Expenses attendances on proctors, auctioneers, legatees,
allowed. and ereditors.! But trustees are entitled, with-
out any express provision, to defray out of the trust
funds expenses legitimately and properly incurred.(a)’
345.

vr What VI. By analogy to the case of a gratuitous
diligence Dailee, a trustee would seem to be liable only
heya, for gross negligence.’ 346.

= On the other hand, it may appear that in
Prima fece practice Courts of Equity have in many cases
Jeckioneea required extreme circumspection and vigil-
the subject. ance, while in others they have been satisfied
with the degree of care usually exhibited by men in
the management of their own affairs.’ 347.

meee state But the true state of the case seems to be
ofthecase. this: that there are certain things which
either clearly appear in themselves to be duties, or are
established as such by the uniform policy of Courts of
Equity; and to these the Courts require a rigid ad-
herence. But in regard to other points, the trustee is
only required to use customary care and diligence; that

* Harbin v. Darby (No. 1), 28 Beav. 325.
2 2Sp. 938. % St. 31268.* 4 St. ¢ 1272, 1278; 2 Sp. 917.

 

(a) The stat. 22 and 23 Vict. c. 85, s. 31, provides that the trust
instrument shall be deemed to cuntain a clause as to reimburse-
ment. :

* See also 1 Perry on Trusts, 3 441, et seg.
TRUSTEES, EXECUTORS, ETC. 179

which is usually exercised by men of ordinary prudence
and vigilance in the management of their own affairs.’
348.

Thus, if a trustee omits to sell property 6. scion to
when it ought to be sold, and it is afterwards **!-
lost, although without any fault of his, he is liable;
because the loss, although not directly occasioned by
his default, would never have happened had he not
failed in performing what must have appeared a palp-
able, although perhaps not an urgent duty.” 349.

Again, Courts of Equity are in the habit 5, oc
of directing property in their own possession ™°'s-
to be invested in the £3 per cent. Annuities; and it
became an established duty, on the part of trustees, to
whom no discretion as to investments is given, to in-
vest their trust moneys in those funds. And this rule,
like an Act of Parliament, or any other kind of Law,
was supposed to be well known, and no one was allowed
to plead ignorance of it. If therefore a trustee invests,
or even suffers money previously invested to remain,
on unauthorized security, however unexceptionable it
might seem to be, and such security afterwards fails,
or if he permits choses in action to remain outstanding,
and a loss arises, he will be liable; as also he will for
the fluctuations of any unauthorized fund.’ £3 per

1 See Brice v. Stokes, 2 Lead. Cas. Kq., 2d ed. 725, et seq.

2 See St. 3 1296, note; 2 Sp. 934.
3 See St. 2 1296, note, 1273, 1274, note; 2 Sp. 9238, 926, 934.*

 

* See 1 Perry on Trusts, 3 455, 456, where the rule as to in-
vestments in the United States is fully stated. See also, ibid., 2
456, note, for consideration of cases that have been adjudged in the
180 TRUSTEES, EXECUTORS, ETC.

cent. Consols is the fund which is usually selected by
the Court for investment; but £3 per cent. Reduced
is frequently resorted to for convenience, as when
quarterly payments have to be made.’ 350.

But where trustees are expressly authorized to invest
in Government security, they are not bound to convert
other kinds of Government stock into the £3 per cents.,
and. it would seem that they may invest in any kind
of Government stock. And by the stat. 22 and 23
Vict. c. 35, s. 32, “when a trustee, executor, or ad-
ministrator shall not, by some instrument creating his
trust, be expressly forbidden to invest any trust fund
on real securities, in any part of the United Kingdom,
or on the stock of the Bank of England or Ireland, or
on East India stock, it shall be lawful for such trustee,
executor, or administrator, to invest such trust fund on
such securities or stock; and he shall not be liable on
that account as for a breach of trust, provided that such
investment shall in other respects be reasonable and
proper.” By the stat. 23 and 24 Vict. c. 38, s. 12, it
is enacted that this provision shall operate retrospec-
tively. And by the stat. 30 and 31 Vict. c. 132, 8, 1,
it is enacted that “the words East India stock in the
said Act passed in the session holden in the twenty-
second and twenty-third years of her Majesty, chapter
thirty-five, shall include and express as well the East

1 2 Sp. 552, note (a).
? Baud v. Fardell, 7 D. M. & G. 628.

 

late Confederate States, involving the legality of investments by
trustees in the bonds and securities of the late Confederacy.
TRUSTEES, EXECUTORS, ETC. 181

India stock which existed previously to the thirteenth
day of August, one thousand eight hundred and fifty-
nine, when the said Act received the assent of her
Majesty, as East India stock charged on the revenues
of India, and created under and by virtue of any Act
or Acts of Parliament which received her Majesty’s
assent on or after -the thirteenth day of August, one
thousand eight hundred and fifty-nine; and it shall be
lawful for every trustee, executor, or administrator, to
invest any trust fund in his possession or under his
control in the stock created by the last-mentioned Act
or Acts to the same extent, and for the same purposes
and objects, as he can now invest: such trust fund in
the East India stock which existed previously to the
thirteenth day of August, one thousand eight hundred
and fifty-nine.” And by s. 2, “it shall be lawful for
every trustee, executor, or administrator, to invest any
trust fund in his possession or under his control in any
securities, the interest of which is or shall be guaran-
teed by Parliament to the same extent and in the same
manner as he may invest such trust fund in such secu-
rities as aforesaid.’”’(a) 351.

According to the general understanding of the pro-
fession, and the general practice of the Court, where
trustees are authorized to invest on mortgage of real
estate, they are not justified in advancing more than
two-thirds of the value of agricultural freeholds, or one-
half of the value of freehold houses ; and if the value

 

(a) See also ss. 10, 11, as to the investments authorized by the
Court of Chancery by general orders. See also 23 and 24 Vict. c.
145, and 34 Vict. c. 27, as to investménts.
182 TRUSTEES, EXECUTORS, ETC.

depends upon fortuitous circumstances—for instance,
if the property consists of a mill, or factory, or house
situate in a watering-place, or the like—the trustees
run the risk of having the mortgage thrown upon
themselves, and of being made answerable for the
money advanced.’ And an authority to lend on such
personal security as they shall think sufficient will not
justify the trustees in lending it to the husband who is
in trade, or indeed to a trading concern.? And an in-
demnity clause, declaring they shall not be liable for
the insufficiency of any security, will not exonerate
them from liability, if they lend on palpably inade-
quate security.* 352.

A trustee is not authorized to sell out stock, and in-
vest the proceeds on a mortgage to secure the re-transfer
of such stock, and the payment of interest equal to the
amount of the dividends.* 353.

Trustees are bound to invest on securities of a per-
manent nature. So that even where trustees have
power to invest as they think fit, they may not invest
upon securities which at the time are commanding
a higher rate of interest in consequence of their being
determinable.’ 354,

1 2 Sp. 925; Remarks of Sir J. Romilly, M. R., in Macleod ».
Annesly, 16 Beav. 605; Budge v. Gummow, L. R.7 Ch. Ap. 719.*

2 2 Sp. 926.7

3 Drosier v. Brereton, 15 Beay. 221.

“ Whitney », Smith, L. R. 4 Ch. Ap. 513.

° Stewart v. Sanderson, L. R. 10 Eq. 26.

 

* 1 Perry on Trusts, @ 457. T Ib. 2 454.
- - >

TRUSTEES, EXECUTORS, ETC. 183

An executor will not be liable for money ojiccion of
allowed to remain with bankers who fail, tstee or |

it i sce that the
where it is not an unreasonable sum for ex- S<¢'hat th

ecutors to keep in the bank,' or where it was {475°
only reasonable for the money to be deposited ?'*
there under the circumstances.? But he will be liable,
if he places his money in the hands of a banker by
way of investment, notwithstanding an indemnity
clause against loss by a banker of money deposited for
safe custody.* 355.

Again, where there are two or more trustees or ex-
ecutors, it is the duty of each trustee and executor to
see that the property is duly secured or rightly applied,
as the case may be. And therefore, as a general rule,
if by the act, direction, agreement, or consent of one
of them, the trust fund is paid over to the other, even
though it was so paid over in order to be applied by
the receiver for those purposes for which it was prop-
erly applicable, and the receiver wastes or misapplies it,
each will be answerable for the whole; except in the
case of money remitted to a co-trustee or co-executor,
to be paid by him in his neighborhood, where the
trustee or executor remitting the same, in case it had
been his own money, would naturally have remitted it
to some one to pay it away, instead of undertaking a

? Swinfen v. Swinfen (No. 5), 29 Beav, 211.*

2 Fenwick v. Clark, 4D. F. & J. 240.
3 Rehden v. Wesley, 29 Beay. 213.

 

* 1 Perry on Trusts, 3 448, 446, and cases cited.
+ Ib. 3 446.
184 TRUSTEES, EXECUTORS, ETC.

journey for the purpose of paying it himself. And so
if one trustee is allowed to retain the money, and he,
against the remonstrances of the others, places it in the
hands of solicitors to invest on mortgage, and the so-
licitors apply it to their own uses, the others will be
liable.’ So if one trustee improperly suffers the other
to detain the trust money a long time in his own hands,
without security, or lends it to the other, or joins or
acquiesces in a loan of it to any one else, on insufficient
security, each will be liable for the whole loss which
may happen. And so if itis mutually agreed between
them that one shall have the exclusive management
of one part of the trust property, and the other trustee
of the other part, each will be liable for any loss which
may happen even to the part of which the other has
the management ;* because the party not acting was in
default for giving the other the power and exposing
him to the temptation to commit a breach of trust, in-
stead of exercising that control over the property which
it was his duty to exercise for the protection and due
management thereof. 356.

; On the other hand, if a trustee or other
pul ent OE person standing in a fiduciary relation has
customary . : >
gar0 oF not failed in doing what must have appeared

to bea palpable duty, and has invested the

1 St. @ 110a, 1281, note, and 1284, and note; 2 Sp. 370, n., 920,
934; Cowell v. Gatcombe, 27 Beav. 568.*

? Griffiths v. Porter, 25 Beav. 236.

5 St. 4 1274, 1284; 2 Sp. 920, 922, 923, 932; Mendes v. Guedalla,
2 Johns. & H. 259.+

 

* See also 1 Perry on Trusts, 3 402, 417, and cases cited,
t 1 Perry on Trusts, 4 418, and cases cited.
TRUSTEES, EXECUTORS, ETC. 185

property on authorized security, he will not be answer-
able for losses which happen without any want of cus-
tomary care or diligence on his part.’ So that if he
deposits the money with a banker in good credit, to be
remitted to the proper person by a bill drawn by a
person in due credit, and the banker or drawer of the
bill becomes bankrupt, he will not be responsible. The
rule in all cases of this sort is, that where a trustee or
executor acts by other hands, either from necessity, or
conformably to the common usage of mankind, he is
not to be made answerable for losses.” But it has been
held that trustees who pay over the trust funds to a
wrong party on a forged certificate are liable ;* and that
a trustee or executor is liable for loss caused by the
fraud, negligence, or other fault of his solicitor,
although in employing such solicitor he may have ex-
ercised ordinary care and discretion. But the con-
trary was held in another case. And where a trustee
employs a proper person to do a necessary act, and that
person is the cause of an accident: (as by felling a tree)
for which the trustee is made to pay, the loss ought to
be borne by the estate, and not by the trustee. 357.

1 See St. 3 1269, note, 1274, note, and 465; 2 Sp. 937.

2 St. 1269; 2 Sp. 933-5; In re Bird, Oriental Commercial
Bank v. Savin, L. R. 16 Eq. 208.

3 Eaves v. Hickson, 30 Beav. 136.

4 Bostock v. Floyer, L. R. 1 Eq. 26; Hopgood ». Parkin, L. R.
11 Eq. 74; Sutton v. Wilders, L. R. 12 Eq. 373.

5 In re Bird, Oriental Commercial Bank v. Savin, L. R. 16 Eq.
203.

© Bennett v. Wyndham, 4 D. F. & J. 259.

16
186 TRUSTEES, EXECUTORS, ETC.

VI. Non- VII. If trustees do not invest trust money
investment. when they ought to do so, even though they
may make no profit by it, they are responsible, at the
option of the cestui que trust, either for the money, and
interest at £4 per cent., or the stock which might have
been purchased therewith at the time when the invest-
ment ought to have been made, and the dividends.’
358.

SAT Wie VIII. As a general rule, where a testator
sina giry Subjects the residue of his personal estate to
property. succeeding limitations, directly or by way
of trust, without any particular directions as to the in-
vestment or mode of enjoyment, or even with an au-
thority to his trustees to allow the same state of invest-
ment to continue; there, in the absence of indications
of a contrary intention, such part of the residue as may
be wearing out (such as leaseholds), or may be invested
in securities which yield a high rate of interest, but are
not authorized by the Court, must be converted and
put in such a state of investment as to be securely
available for all persons interested in it. And if the
residue comprises property of a reversionary nature,
that also must be converted. The one rule protects
the remainder-man, the other protects the tenant for
life’ 359.

* St. 3 1278a; 2Sp. 924; Att.-Gen. ». Alford, 4D. M. & G. 843.*
? See 2 Sp. 42, 552-7; Howe v. Earl of Dartmouth, 2 Lead. Cas.
Eq., 2d ed. 262, et seg. ; Bate v. Hooper, 5 D. M. & G. 338; Boys
v. Boys, 28 Beav. 436; Rowe v. Rowe, 29 Beav. 276; Brown v.

 

* 1 Perry on Trusts, 3 469, and cases there cited.
TRUSTEES, EXECUTORS, ETC. 187

IX. Where personalty is directed to be
. IX. Time al-
converted as soon as conveniently may be, loved tr
there, as between the executor and the per- aa
sons interested in the estate, the personalty is to be
considered as converted within a year; that being con-
sidered as the time within which, in the generality of
cases, it may be converted with ordinary diligence." 360.
X. When a sum of stock is given to trus-

. . 4° ‘ X. Invest-
tees in trust for a married woman for life, aoe om
with remainder to her children, being infants, a
the Court will not ordinarily give its sanction to the
fund being sold out and invested on mortgage, so as
to give the tenant for life a greater income, though
power may have been given to the trustees to lay out
the property on real security, and though they join in
the petition.” 361.

XI. Itisthe wise policy of Courts of Equity :
s XI. Equity
to guard against a breach of trust, by pro- guards

ainst

hibiting all acts which may unnecessarily breach of
place the trustee in a situation of tempta-
tion’ 362.

Hence, in all cases in which a trustee keeps qyustee
trust money in his hands, or in the hands of ™2y pot
a banker, he should take care to keep it sepa- Uys money
rate from his own. For if he were to mix °*™

it with his own in a common account, he would be

Gellatly, L. R. 2 Ch. Ap. 751; Porter v. Baddeley, L. R. 5 Ch. D.
542; and other cases cited in Smith’s Law of Prop., 5th ed., par.
3421.*

1 2 Sp. 42, 565, note (ce). %2S8p.569.  *% See 2 Sp. 300.

 

* 1 Perry on Trusts, ¢ 439.
188 TRUSTEES, EXECUTORS, ETC.

deemed to have treated the whole as his own, and would
be charged with interest, and would be liable to the
cestut que trust for any loss sustained by the banker’s
insolvency.’ If the trustee were at liberty to mix the
trust money with his own, he would often be tempted
to use it as his own, fully intending shortly to replace
it; and frequently, indeed, he would not know whether
the money with which he was carrying on his affairs
was his own or not. In this way, he would be naturally
led to expend the trust money on his own account, and
loss to the trust property would frequently be occa-
sioned. 363.
Similar observations may be made with respect to
an agent.’ 364.
XII. Upon the same principle, a trustee
XII. Trus- : :
tee isc’ or other person standing in a fiduciary rela-
for interest tion, is never permitted to make any profit
and gains.
to himself from the property with which he
is intrusted or from the office itself; if any advantage
is gained by such a person, it belongs to the cestui que
trust. Hence he is accountable for all the interest
which he ought to have made, and would have made,
by the investment of the property on the security di-
rected by the instrument creating the trust, or, in the
absence of any such direction as to the mode of invest-
ment, on the security authorized by the general rule of
the Court. And he will also be accountable for any
interest and gains beyond the amount of such interest
St. ¢ 1270; 2 Sp. 934. See Cook »v, Addison, L. R. 7 Eq.

466.
2 St. 2 468,
TRUSTEES, EXECUTORS, ETC. 189

as above mentioned, which he has actually made on,
or with, or in regard to, the trust property, whether in
the ordinary discharge of his duty, or in transactions
entered into for his own benefit, as he supposed, or
otherwise, if the amount of such extra interest and gains
can be ascertained.’

Or he will be made to pay interest at the rate of £4
or £5 per cent.’ And, under extraordinary circum-
stances, the Court will direct annual or half-yearly
rests to be made, so as to give the cestui que trust the
benefit of compound interest ; as, if a trustee, in mani-
fest violation of his trust, has applied the trust fund to
his own benefit and profit in trade, or. has conducted
himself fraudulently, or has wilfully refused to follow
the positive directions of the instrument creating the
trust as to the investment of the property.’ And if
a trustee or particular agent purchases from his cestus
que trust, even at a public auction, the cestui que trust
has the option of taking to or repudiating the trans-
action; unless the cestui que trust intended that the
trustee should buy, and there has been no fraud, con-

” See supra, par. 338, and St. % 465, 1211, 1261, 1269, note, 1277,
1278; 2Sp.300, 945; Sugden ». Crossland, 3 Sm. &G. 192; Cross-
kill v. Bower, 32 Beav. 86; Chaplain v. Young (No. 2), 33 Beav.
414.* .

2 2 Sp. 921.+

3 St. 21277; 2 Sp. 921.

 

* Sloo v. Law, 3 Blatch. 459; 1 Perry on Trusts, 3 468, and
cases cited. Slade v. Van Vechten, 11 Paige, 21.

+ In the United States there is no law by which different rates
of interest can be applied to different degrees of negligence. See
1 Perry on Trusts, 3 468.
190 TRUSTEES, EXECUTORS, ETC.

cealment, or advantage taken on the part of the trustee.’
A person may indeed grant a beneficial interest, or
make a present, to his trustee, agent, or receiver; but
the latter must show that the dealing was fair, and
that the grantor was perfectly free in the matter, and:
had the same knowledge as he himself had.’ 360.
XIII. Re- XIII. A trustee (as in certain cases we
sponsibility have noticed, par. 356) is responsible for his
other's acts: Own acts and defaults, and for those wrong-
il ful acts and defaults of his co-trustees to
which he is privy, and in which, though without any
corrupt motive, he expressly, tacitly, or virtually ac-
quiesces, or which would not have happened but for
his own act or default. Thus, if two trustees have
properly sold out trust moneys, and one of them hands
the check for the proceeds to the other, who misapplies
the money, they are both liable And so if two trus-
tees execute a release for trust money, which is then
received by one and invested by him on improper
security, the other is liable; for it was his duty to see
that it was properly invested.‘ And where two trus-
tees who were directed to invest on mortgage or in
stock, retained money in a bank, and one died, and the
other applied it to his own use, it was held that the

1 2. Sp. 300, 301, 943, 944; supra, par. 161; Luff ». Lord, 34
Beav. 220.

2 2 Sp. 301, 944; Barrett ». Hartley, L. R..2 Eq. 789.

8 Trutch v. Lamprell, 20 Beav. 116; Horton v. Brocklehurst

(No. 2), 29 Beav. 504.*
4 Thompson v. Finch, 22 Beav. 316.

 

* 1 Perry on Trusts, 3 402.
TRUSTEES, EXECUTORS, ETC. 191

estate of the former was liable, though the other might
have sold out stock on the death of his co-trustee.!
And the same rule applies to executors and other per-
sons standing in a fiduciary relation. But trustees and
others standing in a fiduciary relation are not otherwise
responsible for the acts or defaults of each other.? 366.
There is, however, an important distin~
tion in connection with this point, between between

the case of mere executors, and the case of and execu-
tors in re-

trustees, which, nevertheless, does not mili- gard to the
effect of
tate against the application of the above- joining in
receipts.

stated rule both to trustees and executors,

but is founded in the different power with which they
are legally invested, and amounts only to this: that a par-
ticular circumstance which would afford a presumption
of the performance of an act involving responsibility,
in the case of an executor, will not afford any presump-
tion thereof in a case of a trustee. Thus, trustees have
only a joint interest, power, and authority, and must
all join both in conveyances and receipts ;’ and yet it
would be impracticable in some cases, and expensive and
inconvenient in others, to require that all should to-
gether actually receive the trust money from the person
by whom the same may be payable. Hence it cannot
be inferred from a trustee joining in a receipt, that he
has received any part of the money. But where there
are co-executors, each has a several right to receive
the debts due to the estate, and all other assets, and is

1 Gibbons v. Taylor, 22 Beav. 344.

2 2 Sp. 918, 928.
* Lee v. Sankey, L. R. 15 Eq. 204.
192 TRUSTEES, EXECUTORS, ETC.

competent to give a valid discharge by his own sepa-
rate receipt; and, therefore, if they join in a receipt,
it is purely a voluntary act, and it will be presumed
that they jointly received the money. 367.

In each case, however, the same rule applies as to
responsibility for money received; although, in the
one case, the party being a trustee, is not presumed to
have done the act which would make him responsible,
namely, the act of receiving the money; because the
act done by him is as likely to have been a mere for-
mal act as not; whereas in the other case, the party
being an executor, is presumed to have done the act in-
volving responsibility ; because he has done that which
an executor, who has not actually received the money,
is not called upon to do.’ 368.

The trustee indemnity clause does not
indemnity exonerate a trustee from the consequences of
wane a breach of trust.’ Its insertion leads many,
in ignorance of this, to accept a trust, and many others
to be so remiss as to give their co-trustees the oppor-
tunity of committing breaches of trust, whereby such
trustees are involved in Equity proceedings, which,
however, often necessarily proves unavailing to remedy
the loss occasioned to the cestui que trust.(a) 369.

1 As to these passages respecting acts and defaults for which a
trustee or other person standing in a fiduciary relation is respon-
sible, see St. 4 1280, 1280 a, and note; 2 Sp. 928, 929, 932; Brice

v. Stokes, 2 Lead. Cas. Eq., 2d ed. 725, et seg.*
? Brumridge v. Brumridge, 27 Beav. 5.

 

(a) The stat. 22 and 23 Vict. c. 85, s. 31, provides that trust in-
struments shall be deemed to contain these clauses.
* 1 Perry on Trusts, 2 416, et ség.
TRUSTEES, EXECUTORS, ETC. 193

XIV: “Every person who acquires per-
sonal assets by a breach of trust or a devas- of trict by
tavit, by an executor, is responsible to those ™ ea
who are entitled under the will, if he is a party to the
breach of trust. Generally speaking, he does not be-
come a party to the breach of trust by buying, or re-
ceiving as a pledge for money advanced to the executor
at the time, any part of the personal assets, even know-
ing them to be such, whether specifically given by the
will or otherwise ; because the sale or pledge is held to
be primé facie consistent with the duty of an executor.
Generally speaking, he does become a party to the
breach of trust by buying or receiving in pledge any
part of the personal assets, not for money advanced at
the time, but in satisfaction of his private debt; be-
cause this sale or pledging is primd facie inconsistent
with the duty of an executor.” And if an executor or
administrator disposes of assets without a valuable con-
sideration, the assets may be followed in specie, if dis-
tinguishable; but if the property so transferred is,
money and not distinguishable, and the person taking
it knew it to be part of a testator’s or intestate’s estate,
the creditors, legatees, or next of kin, have a personal
demand, to the amount of the assets so disposed of.
370.
XV. Where executors or trustees are
XV. Joint

jointly implicated in a breach of trust, all of breach of

them should, if possible, be brought. before

1 Per Sir John Leach, in Keane v. Robarts, 4 Mad. 357, cited
St. 2 580; see also 2 Sp. 373, 374, 379.
2 2 Sp. 379.
, 17
194 TRUSTEES, EXECUTORS, ETC.

the Court, and should. be made to contribute propor-
tionably ; especially where the trust property is to be
brought back to be administered by the trustees, or
where a general administration is involved." 371.
But each of the trustees, who are jointly implicated
in a breach of trust, is responsible for the entire loss,
and liable to make it good (as in certain cases we have
already noticed); so that the cestui que trust may, in
case of need, proceed against any or either of them
singly or separately, even against the less guilty.” And
in such case, the trustee or trustees who may be so singly
or separately compelled to make good the loss, may
seek contribution from the others or other of them in
another suit? 372.
XVI Acquic VWI. If cestui que trust has for a long
fbreach of time acquiesced in the misconduct of his
es trustee, with full knowledge of it, a Court,
of Equity will not relieve him; for vigilantibus non
dormientibus, equitas subvenits 373.

’ See observations of L. C. B. Richards, In re Chertsey Market,
6 Price, 278; Perry v. Knott, 4 Beav. 179; Munch v. Cockerell, 8
Sim. 219; Devaynes v. Robinson, 24 Beav., note to p. 99. But see,
contra, Ex parte Angle, Barn. 425.

2 See Walker v. Symonds, 3 Swans. 75-8; Bradwell v. Catch-
pole, Id. 78, note. See also Rules of Court, 1875, Ord. xvi. 1. 5;
and Attorney-General v. Corporation of Leicester, 7 Beav. 176;
Kellaway v. Johnson, 5 Beav. 319; Perry v. Knott, 4 Beav. 179;
5 Beay. 293; 2 Sp. 941.

® See Lord Eldon’s judgment in Walker v. Symonds, 3 Swans,
76-8; 2 Sp. 941.

4 St. @ 1284 a.
TRUSTEES, EXECUTORS, ETC. 195

XVII. The debt created by a breach of
trust is only regarded as a simple contract fy uredenat
debt, both at Law and in Equity, even where Btipte eon
the trust arises under a deed executed by the Meeecneen
trustees ; unless the trustee who committed such breach
of trust has acknowledged the debt under seal ;' or
unless by deed he has not merely accepted the trust,
but has agreed or declared that he will execute the
trusts.” 374.

Money owing to a defaulting trustee as peraut by
a beneficiary will be regarded as money paid 34245¢°
by him out of money for which he has not "7e*e™-
accounted.* 375.

XVIII. A trustee may bind the estate by xyyyy
a conveyance toa bond fide purchaser, who fo%erf
had no notice at the time of paying his pur- OG 0",
chase-money :* because, in that case, the trust °°
is virtually extinguished by the countervailing equity
of the bond fide purchaser. But if afterwards the
trustee re-purchases or otherwise becomes entitled to
the same property, the trust revives and re-attaches
upon it.2 And so, if a trustee or executor transfers
trust funds upon the trusts of a settlement made or to
be made upon his or her marriage, and the opposite
party to the marriage contract had no notice of the

1 St. 2 1285, 1286; 2 Sp. 936.

2 Wynch ». Grant, 2 Drew. 312; Holland v, Holland, L. R. 4
Ch. Ap. 449.

3 Jacubs v. Rylance, L. R. 17 Eq. 341.

* St. 2 1264, and note; Basset v. Nosworthy, 2 Lead. Cas. Eq,,
2d ed. 1, et seq. ‘

5 St. 2 1264.
196 TRUSTEES, EXECUTORS, ETC.

fact that the party transferring was not beneficial
owner of the funds, it has been held that the trusts of
the settlement will attach upon the funds.’ . 376.

A purchaser has no right to a conveyance from
trustees, where they had no right to sell at all, or not
in the way in which they did sell, and where the pur-
chaser was aware of that circumstance before he paid
his purchase-money.” 377.

The trustee may bind the estate by a bond fide mort-
gage, or other specific lien, without notice of the trust.
But the trust property will not be bound by any judg-
ment or any ‘other claim of creditors against the
trustee? 378.

If, however, for a great number of years a trust for
raising money remains unperformed, and a sale or
mortgage is proposed to be made by the trustees, with-
out an apparent reason for the sale or mortgage, and
without the concurrence of the parties who are in pos-
session and receipt of the rents, the purchaser or mort-
gagee is under some obligation to inquire and see
whether the transaction is or is not a breach of trust.‘
379.

1 Cooper v. Wormald, 27 Beav. 266.
2 Dance v. Goldingham, L. R. 8 Ch. Ap. 902.

3 St. ¢ 977.
4 Stroughill v. Anstey, 1 D. M. & G.654.*

 

* 2 Perry on Trusts, 3 797, 798. Inthe United States, where
lands are holden for the payment of the testator’s debts, a devise
of lands for the payment of particular debts or legacies only can
impose upon the purchaser no obligation to see to the application
of the purchase-money. The strict English rule is not favored
by the American courts. See Elliott *. Merryman, 1 Lead. Cas.
Eq., 4th Am. ed. 40, American notes.
TRUSTEES, EXECUTORS, ETC. 197

And if a person, though without any notice of a
trust, and for valuable consideration, takes from a
trustee a mere equitable estate, interest, or charge,
when, for his own safety, he ought to have required a
legal estate, interest, or charge, he cannot set it up
against the cestwis que trust, where the trustee wrong-
fully created it. 380.

Where a trustee is beneficially interested in part of
a trust fund, and misapplies the other part, his own
part is liable to make good the other part. And it
has been held that this liability exists even as against
an assignee of the trustee’s part, who had previously
put a distringas on it. 381.

XIX. An executor or administrator is y1x pig.
personally liable for the payment of debts bility, duty,
in respect and to the extent of the personal of executor
assets. It is his primary and paramount '*™
duty, with all convenient speed, to pay the debts out
of the personal estate. And he has full right either
to mortgage or sell for payment of debts. And hence
if the assets be sold or aliened by the- executors or ad-
ministrators, or any of them, for valuable considera-
Aion, the creditors cannot follow them; they are ab-
solutely vested in the purchaser. And an executor or
administrator may assign to a creditor and give him

1 Shropshire Union Railways, etc. Co. v. The Queen, L. R. 7 H.
L. 496.
2 Wilkins v. Sibley, 4 Gif. 442.

 

(a) See stat. 23 and 24 Vict. c. 145,.s. 30, as to powers of paying
debts, compromising, compounding, and referring to arbitration.

~
198 TRUSTEES, EXECUTORS, ETC.

a power of attorney to collect debts, to secure the pay-
ment of his, the creditor’s own debt.’ 382.

If an executor or administrator has, except under
the direction of the Court, or except in the case pro-
vided for by the stat. 22 and 23 ¥ict. c. 35, s. 29,
paid away the residue in ignorance of the existence of
any debt, he is still liable? But an executor or ad-
ministrator fairly stating the facts, and paying over the
assets under the direction of the Court in an administra-
tion suit, is fully indemnified against all existing or
contingent demands on the estate.’ And by the stat.
22 and 23 Vict. c. 35, s. 29, “where an executor or
administrator shall have given such or the like notices,
as in the opinion of the Court in which such executor
or administrator is sought to be charged would have
been given by the Court of Chancery in an adminis-
tration suit, for creditors and others to send in to the
executor or administrator their claims against the es-
tate of the testator or intestate, such executor or admin-
istrator shall, at the expiration of the time named in the
said notices or the last of the said notices for sending
in such claims, be at liberty to distribute the assets ot
the testator or intestate, or any part thereof, amongst
the parties entitled thereto, having regard to the claims
of which such executor or administrator has then notice,
and shall not be liable for the assets or any part thereof

1 2 Sp. 372, 373; Earl Vane v. Rigden, L. R. 5 Ch. Ap. 663.

2 2 Sp. 921.

3 Waller v. Barrett, 24 Beav. 413; Bennett v. Lytton, 2 Johns.
& H. 155; Williams v. Headland, 4 Gif. 505.
TRUSTEES, EXECUTORS, ETC. 199

so distributed to any person of whose claim such exec-
utor or administrator shall not have had notice at the
time of distribution of the said assets or a part thereof,
as the case may be; but nothing in the present Act
contained shall prejudice the right of any creditor or
claimant to follow the assets or any part thereof into
the hands of the person or persons who may have re-
ceived the same respectively.” And an executor has
the same protection under this Act as under a decree.!
383.

This Act applies to claims of next of kin as well as
to claims of creditors. And it affords protection to the
sureties in an administration bond where the adminis-
trator has pursued the course prescribed. 384.

By the stat. 22 and 23 Vict. c. 35, s. 30, trustees,
executors, or administrators may apply, by petition or
summons, upon a written statement, for the opinion,
advice, or direction of a judge, on any question re-
specting the management or administration of the
trust property, or the assets of any testator or intestate.
385.

One of two or more executors may settle an account
with a person who is accountable to the estate, so as to
bind the others and the estate; subject to any question
of his liability to the parties beneficially interested for
any impropriety of conduct; and subject to this also,
that if there is any fraud or gross error in the settle-

' Clegg v. Rowland, L. R. 3 Eq. 368.
2 Newton v. Sherry, L. R. 1 C. P. D. 246.
200 TRUSTEES, EXECUTORS, ETC.

ment of account, it may be a ground for re-opening it.’
386.

After an administration decree, an executor can do
no act to vary the rights of the parties; as by giving
an acknowledgment to take a debt out of the Statute
of Limitations.? 387.

XX. Trustees to support contingent re-

XX. Trus- 4 2
tees to sup- mainders are peculiarly considered as hono-
gent re- rary trustees for the benefit of the family, and
as entitled to exercise a discretion for that
purpose. And hence a Court of Equity, except in
special cases, will not order them to join in convey-
ances which may affect or destroy the remainders.
And, on the other hand, in those instances where they
have so joined, after the first tenant in tail attained his
majority, no judge in equity has gone the length of
holding that he would punish them as for a breach of
trust, even in a case where a Court of Equity would
not have directed them to join. Where, however, be-
fore the first tenant in tail is of age, trustees join in
destroying the remainders, they are liable for a breach
of trust; and so is every purchaser under them with
notice. In some few cases, however, Courts of Equity
have compelled such trustees to join in conveyances
which may affect or destroy the remainders, under pe-
culiar circumstances of pressure, to discharge incum-
brances prior to the settlement ; or in favor of creditors,
where the settlement was voluntary ; or for the advan-

1 Smith v. Everett, 27 Beav. 446, 454. ‘
2 Phillipps v. Beal (No. 2), 32 Beav. 26.
TRUSTEES, EXECUTORS, ETC. 201

tage of persons who were the first objects of the settle-
ment; as, for example, to enable the first son to make
a settlement on an advantageous marriage.’ 388.
XXI. Courts of Equity will assist the aes
trustees, and protect them in the due per- Equity will

aid and di-
formance of the trust, whenever they ask the pectin:

aid and direction of the Court, as to the es- ce
tablishment, the management, or the execution of it.?
And in cases of substantial doubt, it is best to ask for
the direction of the Court.’ 389.

A trustee who commits a plain breach of garty of
trust is not protected from its consequences *¥stees-
by the circumstance that he honestly took and followed
the advice and opinion of his solicitor, whatever remedy
he may have against his solicitor,‘ or that he committed
it with the view of saving his cestui que trust from
ruin.’ A married woman, who by her entreaties has
persuaded a trustee to commit a breach of trust to
rescue her husband and family from ruin, has shortly-
afterwards made the trustee liable for that breach of
trust, by filing a bill against him.® 390.

A trustee is not in all cases to be made liable upon
the mere ground of his having deviated from the strict
letter of his trust; for the deviation may be necessary
or beneficial. But when a trustee ventures to deviate
from the letter of his trust, he does so under the obliga-

1 St. ¢ 995-7; Lewin on Trusts, 4th ed. 285-292.*

2 St. 2 961. 3 St. 1276, note. * 2 Sp. 919.

5 See 2 Sp. 920. § 2 Sp. 920.

 

* 2 Perry on Trusts, 3 522, 523. Not frequent in the United
States, ibid.
202 TRUSTEES, EXECUTORS, ETC.

tion and at the peril of afterwards satisfying the Court
that the deviation was necessary or beneficial. 391.

It is impossible ever to pronounce that a trustee or
executor is safe from personal risk, unless he has acted
in the execution of the trust under the directions of
the Court,” or is protected by the stat. 22 and 23 Vict.
c. 35, ss. 29, 30.2 392.

A person who accepts the office of trustee, at the
request of the cestui que trust, is entitled to be indem-
nified by the latter personally against all loss which
may arise in the due execution of the trust. 3924.

Notice to an executor of a possible contingent lia-
bility of his testator’s estate (such as the possible in-
solvency of a company believed to be perfectly solvent),
is not a sufficient reason for rendering it improper for
him to distribute the estate without the direction of
the Court; and if the liability afterwards becomes a
debt, he will be entitled to call on the residuary lega-
tees to refund the capital paid to them, but.not the in-
termediate income.’ 393.

XXII. A trustee is entitled to have the
XXII. Mu- ‘ .
niments of muniments of title, and, in fact, it is his duty
to keep them in his possession.© 394.

1 Harrison v. Randall, 9 Hare, 407.*

22 Sp. 49. 3 Supra, par. 388, 385.
* Jervis v. Wolferstan, L. R. 18 Eq. 18.
5 Tb. & 2 Sp. 46.

 

* 2 Perry on Trusts, 2 476. A trustee, however, may safely do
that without a decree of the Court, which the Court, on a case
made, would order or decree him to do, ibid.
TRUSTEES, EXECUTORS, ETC. 203

Where there is any difficulty or danger, as regards
the title-deeds of a trust estate, or the securities of a
trust fund, the Court may provide for every such
emergency, by ordering the deeds or the securities to
be deposited in Court.’ 395.

XXIII. If trustees are guilty of gross yxqy
negligence, mismanagement, or misconduct, Eavity will
or if, from any cause, there is a failure of [musteesand
trustees qualified and willing to act, new °™™
trustees will be substituted by the Court.(a)? And if
a trustee becomes insolvent, it is a good ground for his
removal.’ And the Court has even removed a joint
trustee from a trust on the mere ground that the other
trustees would not act with him ; because if he were
not removed, irreparable mischief might happen to the
trust property or the cestui que trust. 396.

XXIV. In the case of a charitable trust, . x,y 17.
it seems that the Court will direct a power Son of
to appoint new trustees prospectively to be @2Peint
inserted in a deed appointing new trustees; **
but not in the case of a private trust, unless it is
authorized by the instrument constituting the trust.’
397.

XXV. Before the stat. 1 Vict. c. 26, ss. yxy.

30, 31, trustees took the inheritance, in those Wheretres-
cases where it was necessary, for the purpose ‘"? **

1 2 Sp. 46. 2 St. 2 1287, 1289.

5 Harris v. Harris (No. 1), 29 Beav. 107.
4 St. 2 1288; 2 Sp. 943. 5 2 Sp. 37.

 

(a) See stat. 23 and 24 Vict. c. 145, ss. 27, 28.
204 TRUSTEES, EXECUTORS, ETC.

of a trust created by will, that they should take the
inheritance. And in the case of a devise to trustees
for sale, though only a part of the inheritance was re-
quired to be sold, yet the Court considered them as
trustees of the whole inheritance.’ 398.

eer: XXVI. When all the duties of a trustee

aie are at an end, and this is clearly shown to

ctegve Dim, and he has no notice of any disposition

te or incumbrances made by the cestui que trust,
he must, on demand, convey the legal estate to his cestui
que trust, at the peril of paying the costs of proceed-
ings occasioned by his refusal. But in cases of real
doubt or difficulty, a trustee, before he parts with his
estate, is fully justified in requiring an indemnity from
his cestui que trust, or in seeking the directions and in-
demnity of the Court.2 399.
XXVII. A trustee is entitled to have his

XXVIL :
Rendering accounts examined, and to have a settlement
and settle- és
mentof of them. He is also bound to render proper
accounts. a

accounts, if demanded, and to be always
ready with them. If the cestui que trust is satisfied
that nothing more is due to him, he ought to close the
account, and give an acknowledgment equivalent to a
release, though the trustee cannot oblige the cestui que
trust to give a release under seal. On the other hand,
if the cestui que trust is dissatisfied with the accounts,
he ought to require to have the accounts taken. He
is bound to adopt one of these two courses; he is nots

1 2 Sp. 295. 2 2 Sp. 48.*

 

* 1 Perry on Trusts, 3 922 et seq.
TRUSTEES, EXECUTORS, ETC. 205

at liberty to keep proceedings hanging for an indefinite
time over the head of the trustee. 400.

A trustee or executor is bound to render paty of
every necessary information, and, if he have "pdcring |
not all the necessary information, he isbound ™*"°™
to seek for it, and, if practicable, to obtain it. (a)? 401.

Executors must be allowed a reasonable p,caxing
time for breaking up a testator’s domestic es- {PS
tablishment, and discharging his servants.’ "*™°"*

402.

1 2 Sp. 46, 47, 921; Kemp v. Burn, 4 Giff. 348.*
® 2 Sp. 921; Talbot v. Marshfield, L. R. 3 Ch. Ap. 622.
3 Field v. Peckett (No. 3), 29 Beav. 576.

 

(a) On the subject of Trusts and Trustees, see stat. 1 Will. IV,
v. 60; 18 and 14 Vict. c. 60; 15 and 16 Vict. c.55 ; 10 and 11
Vict. c. 96; 12 and 18 Vict. v.74; 22 and 23 Vict. c. 35; and
23 and 24 Vict. c. 38, 8. 145.

* 2 Perry on Trusts, 3 900.
206 SPECIFIC PERFORMANCE.

CHAPTER VIII.

OF THE SPECIFIC PERFORMANCE OF AGREEMENTS
AND DUTIES NOT ARISING FROM TRUSTS.

I. By the Common Law, if a party who
ought to perform a contract or covenant,
fails to do so, no redress could be had, except in
damages.' 403.
wAspecite 11+ In Equity a specific performance of a
perform” contract, covenant, or duty, will be decreed,

ance will he

frac” where damages would not afford an exact

Junnges compensation for the non-performance there-

pard act. of, whatever may be the form or character of
pensation. the instrument containing such contract or
covenant, or giving rise to such duty. And hence it
will be decreed in all cases of contracts for the pur-
chase of land; because the local character, vicinage,
soil, easements, or accommodations of the land, may
give it a peculiar value in the eyes of the purchaser ;
so that damages, which would enable the purchaser to
buy other land, of the very same marketable value,
would not or might not be a complete compensation.
And if a bond is entered into, with a penalty, Equity
will not regard it as an option to do the act required
or pay the penalty, but as an agreement to do the act

‘St. 2 714.

I. Remedy
at Law.
SPECIFIC PERFORMANCE. 207

at all events, of which it will enforce a specific per-
formance.’ 404.

III. But Equity will not interfere where 141 wot
damages at Law would amount to a com- Where they

would afford
plete compensation. Hence specific perform- *complete

ance of articles of apprenticeship would not ton.

be decreed.’ And a performance of a contract for the
sale of stock or goods will not be enforced in ordinary
cases ; because damages at Law, calculated on the mar-
ket price of the stock or goods, are generally equiva-
lent, in point of value, to the delivery of the stock or
goods contracted for; inasmuch as, with the damages,
the purchaser may ordinarily buy stock or goods of the,
same kind and of the same value to himself. Buta
performance of a contract respecting stock, goods, or
personal property, will be enforced, where damages at
Law could not afford a complete compensation.’ And
where the specific performance of a contract respecting
chattels will be decreed on the application of one party, -
on the ground that damages would not be a complete

1 St. 2 715, 717, 718, 739-742, 746, 751, 783-6, 850, 1425.

2 Webb v. England, 29 Beav. 44; Crampton v. Varna Railway
Co., L. R. 7 Ch. Ap. 562; Wilson ». Northampton, ete., Railway
Co., L. BR. 9 Ch. Ap. 279.

3 St. 2 717-720, 746; Falcke v. Gray, 4 Drew. 651; Cuddee v.
Rutter, 1 Lead. Cas. Eq., 2d ed. 640, et seg. ; Dowling v. Betjemann,
2 Johns. & H. 544,*

 

* In Falckev. Gray, the articles sold were two china jars, which
were so nearly unique that it was impossible to say what price
they would bear in the market; this seems to be the ground of
distinction in such cases.
208 SPECIFIC PERFORMANCE.

compensation to him, Equity will entertain the like
suit at the instance of the other party, though the re-
lief sought by him is merely in the nature of a com-
pensation in damages or value; for, in all cases of this
sort, the Court acts on the ground that the remedy
ought to be mutual." The same rules apply to agree-
ments respecting personal acts, for the non-performance
of which an exact compensation may sometimes be
made by way of damages, while in others it cannot.’
405. : :

IV. At Law, contracts and covenants to
contracts” sell, convey, or transfer land or other prop-

and cove- . .
nantsare erty, are considered simply as personal and

reel as executory contracts and covenants, and not
Eadiexcois attaching to the property in any manner
=e as a present or future charge or otherwise.’
cane But in Equity, from the time of a contract
pafoomea for the sale of land, the vendor, and his
_ip regard t0 heirs, and any one claiming as a subsequent
quences. purchaser under him, become as to the land,
trustees for the purchaser and his heirs, devisees, or
vendees; and the purchaser and his personal repre-
sentatives become, as to the money, trustees for the
vendor and his personal representatives.* 406.

A vendor of land may receive the balance of the

purchase-money, and convey the estate to the pur-

1 St. 3 723. 2 St. @ 722-9, 3 St. 3 714, 790.

* St. 2 788, 789, 790; except as far as the case is altered by the
stat. 17 and 18 Vict. c. 118, 30 and 31 Vict. c. 59, and 40 and 41
Vict. v. 34, infra, par. 481, 485, 486.
SPECIFIC PERFORMANCE. 209

chaser, without regard to the receipt of a mere notice
that the purchaser had agreed to assign the contract.’ 407.
Every payment of purchase-money to the vendor
transfers, in Equity, to the purchaser, a corresponding
proportion of the estate. And hence, where the pur-
chase-money is to be paid by instalments, and the pur-
chaser has paid some instalments, and then declines to
complete, and is absolved from the liability to complete
the purchase, owing to the default of the vendor, the
purchaser has a lien on the estate for the money he has
so paid, as against the vendor, and every mortgagee of
the vendor who simply gives him notice of his mort-
gage, without attempting to prevent the completion of
the contract or the payment of the instalments.? 408.
In like manner, land directed, articled, ,,.4

; articled or
conveyed, or devised to be sold and turned 4rticled »

into money, is reputed as money ; and money Pe, 014. and
directed, articled, assigned, or bequeathed to #oitiahoa
be invested in land, has in Equity many of 020i";
the qualities of real estate, and in particular ""*

is descendible and devisable as such.* But the person
for whose benefit the conversion is to be made, may
elect to take the property in its unconverted state.

And this election he may make as well by acts or

™ McCreight v. Foster, L. R. 5 Ch. Ap. 604; s.c. nom. Shaw
v. Foster, 5 H. L. 321.

2 Rose v. Watson, 10 H. L. Cas. 672.

2 St. @ 790; Fletcher v. Ashburner, 1 Lead. Cas. Eq., 2d ed.
659 et seg.; Dixie v. Wright, 32 Beav. 662.*

 

® Craig v. Leslie, 3 Wheat. 563, 577; Taylor v. Berham, 2 How.

Sup. Ct. 234.
18
210 SPECIFIC PERFORMANCE,

declarations clearly indicating a determination to that
effect, as by an application to a Court of Equity.’ But
where it has vested in two or more persons, one cannot
elect without the others or other.’ 409.

In general, Courts of Equity do not incline to change
the quality of the property as the testator or intestate
has left it, unless there is some clear act or intention
by which he has unequivocally fixed upon it through-
out a definite and different character.* 410.

V. Specific V. Where the specific execution of a con-
perform- —_ tract, respecting lands would have been de-

ance de-

tween wer. creed between the parties, it will be decreed

ingunder” between all parties claiming under them in

the parties. rivity of estate, representation, or title, un-
less other controlling equities have intervened. Hence,
if the vendor, before completion, dies intestate as to his
realty, his legal personal representative may maintain

a suit against his heir and the purchaser for
Purchaser’s . 5 a
heirmay @ specific performance ;> where the heir of
require the . . .
money to be the purchaser came into Equity for a specific
paid out o : é i 5
the per- performance, he might in general require the

sonal estate. .

purchase-money to be paid out of the per-
sonal estate of the purchaser in the hands of his per-
sonal representatives.® 411.

1 St. 2 793, 1213.

? Holloway v. Radcliffe, 23 Beav. 163.

5 St. @ 1214, 12144, 4 St. 3 788.

5 Hoddel v. Pugh, 33 Beav. 489. And, before the stat. 17 and 18
Vict. c. 113, 30 and 31 Vict. c. 69, and 40 and 41 Viet. ec. 34, infra,
par. 481, 485, 486.

§ St. a 790.
SPECIFIC PERFORMANCE. 211

VI. If the terms of an agreement, either

through negligence or otherwise, have not sunpiince

been complied with in particulars which do Srigise"®

. : ti
not pertain to the essence of the contract, or non-essen-

if there has been a slight misdescription of ame.
the property, Courts of Equity will never- salesererip-
theless decree a specific performance in favor ros

of the party chargeable with non-compliance or mis-
description, if compensation can be made for an injury
that may have been occasioned by the non-compliance
or for the misdescription of the property. 412.

At Law, time was of the essence of the contract.
But in Equity it is held to be of the essence of the con-
tract only in cases of direct stipulation that it shall be
so considered, or where it is obviously so from the
nature of the case; as where a reversion is sold, or
where the property sold is required for some immedi-
ate purpose, as trade or manufacture, or is in its nature
of a fluctuating value, or is of a determinable character,
as an estate for life, or the dealing is with an ecclesi-
astical corporation. And even where time is of the
essence of the contract, it may be waived by proceed-
ing in the purchase after the time has elapsed. On
the other hand, although time may not be originally
of the essence of the contract, still either party may,
by a proper notice, bind the other to complete within

a reasonable time.’ 413.

1 See St. 3 747, 748, 771, 775-777, and notes; Seton v. Slade, 2
Lead. Cas. Eq., 2d ed. 429, et seg.

2 Parkins v. Thorold, 16 Beav. 65; Hudson v. Temple, 29 Beav.
536; Wells ». Maxwell (No. 1), 32 Beav. 408; Lord Ranelagh v.
212 SPECIFIC PERFORMANCE.

stipulation BY the Judicature Act, 1873, s. 25 (7),
not of the «Stipulations in contracts, as to time or
contracts. otherwise, which would not before the pass-
ing of this Act have been deemed to be or to have be-
come of the essence of such contracts in a Court of
Equity, shall receive in all Courts the same construc-
tion and effect as they would have heretofore received
in Equity.” 414.

vit.wast 21. Where the vendor is incapable of
of title, ora making a complete title to all the property

substantial

Se aoe sold, or there has been a substantial misde-

want of
want of , scription in important particulars, or the

compliange. terms have not been reasonably complied

ai with on the part of the vendor, Courts of
Equity will generally allow the purchaser to proceed
with the purchase, pro tanto; that is, to have the con-
tract. specifically performed as far as the vendor can
perform it, and to have an abatement made out of the
purchase-money or a compensation. This right to an
abatement may be excluded by express condition, even
for a deficiency of nearly half, if the purchaser seeks
specific performance, though the Court would not en-
force specific performance against him.” But where
Melton, 2 Dr. & Sm. 278; Sugd. V. & P., 14th ed. 257, et seg. ;
St. 2.776; 2 Lead. Cas. Eq., 2d ed. 442, et seg.; Tilley v. Thomas,
L. BR. 3 Ch. Ap. 61; Cowles v. Gale, L. R. 7 Ch. Ap. 12.*
1 36 and 37 Vict. c. 66.

2 St. 32.779; Sugd. V. & P., 14th ed. 305; 2 Lead. Cas. in Eq.,
3d ed. 498, 499; Hughes v. Jones, 3 D. F. & J. 307, 815; Cor-

 

* Brashier v. Gratz, 6 Whéat. 528; Taylor v. Longworth, 14
Peters, 173.
SPECIFIC PERFORMANCE. 213

the land is less than the quantity stated, by a very
large proportion, the course is to allow the purchaser
to rescind the contract.’ 415.

If a person professes to be the owner of the fee
simple, and undertakes to sell it, but he is not able to
do so, and the purchaser Was not aware of his inability,
he must convey as much as he can, if the purchaser
desires it, and submit to an abatement of the purchase-
money. But where husband and wife agree to sell
what the purchaser is aware is the wife’s estate in fee,
and the wife afterwards refuses to convey, the pur-
chaser cannot compel the husband to convey his inter-
est, and accept an abated price.” 416.

VIII. Where a man has performed a

a VIII. Acci-
valuable part of an agreement, but is inca- dental inca-
me : acity 0
pable of performing the remainder, by a sub- performing
. . - the remain-
sequent accident, without any default on his der of an

part, Courts of Equity will enforce the agree- pao
ment in his favor (allowing such compensation as may
be just) in case he i$ not in statu quo as to the part
which he has performed, but not otherwise.* 417.
IX. In some cases, a performance of an
agreement will be decreed, not according to mnanee sub

the letter of the contract, if that would be ”

dingly v. Cheeseborough, 4 D. F. & J. 379; Hooper v. Smart, L.
R. 18 Eq. 683.*

1 Earl of Durham »v. Sir F. Legard, 34 Beay. 611; Aberaman
Ironworks v. Wickens, L. R. 4 Ch. Ap. 101.

2 Castle v. Wilkinson, L. R. 5 Ch. Ap. 534.

3 St. 2.772, 796, 797.

 

* Waiters v. Travis, 9 Johns. 465.
214 SPECIFIC PERFORMANCE.

unconscientious, but according to the change of circum-
stances.’ 418.

se: deeews X. Of course, an agreement entered into
ment not by parties incompetent to contract, such as

enforced,

pivic ° infants and femes covert, will not be enforced

competent against them. Nr will it be enforced in
to contract. favor of such parties; because the remedy
ought to be mutual? 419.
ee XI. Nor will Courts of Equity enforce a
terms are contract, although it is written, if the terms
notcer@™ are not certain and definite in themselves;
ae for, in such a case, they might decree pre-
cisely what the parties did not intend; and besides
this, if any terms are to be supplied, it must be by
parol evidence; and the admission of such evidence
would let in all the mischiefs intended to be guarded
against by the Statute of Frauds. 420.
eaaaae XII. Courts of Equity will enforce an
foreing vol- obligation imposed by will, without any con-
untary fs - : cS .
agen: sideration. But they will not enforce, either
against the party himself, or any volunteers claiming
under him, any contract or any imperfect gifts inter
vivos (not being donations mortis causd), or imperfect
assignments of debts or other property, or executo
g property, Ty
trusts raised by a covenant or agreement, or defective
or imperfect settlements or conveyances, which are not

founded in a valuable consideration, even though the

. St. 3.775.

2 St. 2 787, 851, note; Vansittart v. Vansittart, 4 K. & J. 62.
3 St. 3 767; Taylor v. Portington, 7 D.M. & G. 328.

4 2 Sp. 255. :
SPECIFIC PERFORMANCE. 215

transaction be founded on a meritorious consideration,
as in the case of a provision for a wife or child; that
is, Equity will not enforce them so far as something is
sought beyond that which may be recovered under
them at Law, although it will, if necessary, give effect
to any legal obligation created by them. But if a
transfer, assignment, trust, settlement, or conveyance
is complete, so that no act remains to be done to give
full effect to the title, Equity will enforce it through-
out against the party making or creating it, and his
representatives, although it be merely voluntary.!
And simply to sign a declaration of trust in favor of
the donee, is an effectual mode éf effecting a voluntary
transfer. And if a person directs by letter, though
not for valuable consideration, an executor to pay over
to another the share to which such person is entitled,
and the letter is acted upon by the executor, it will
operate as an assignment.? 421.

1 St. ¢ 433, 787, 793, a, b, 973; 1 Sp. 507; 2 Sp. 52, 57, n (e),
129, 254, 255, 285, 889-893, 898, 899, 907, 909-915; Fletcher ».
Fletcher, 4 Hare, 67; Voyle v. Hughes, 2 Sm. & G. 18; Bridge
v. Bridge, 16 Beav. 315; Weale v. Ollive, 17 Beav. 252; Scales v.
Maude, 6 D. M. & G. 43; Dening v. Ware, 22 Beay. 184; Tatham
v. Vernon, 29 Beav. 604; Beech v. Keep, 18 Beay. 285; Donald-
son v. Donaldson, Kay, 711; Pearson v. Amicable Assurance
Office, 27 Beav. 229; Woodford v. Charnley, 28 Beav. 95; Dilrow
v. Bone, 3 Gif. 5388; Airey v. Hall, 3 Sm. & G. 315; Parnell v.
Hingston, 3 Sm. & G. 337; Milroy v. Lord, 4 D. F. & J. 264.*

~? Kekewich v. Manning, 1D. M. & G. 176; Grant v. Grant, 34
Beav. 623; Gilbert v. Overton, 2 Hem. & M. 110; Jones v. Lock,
L. R. 1 Ch. Ap. 25; Richardson v. Richardson, L. R. 3 Eq. 686;
Lambe v. Orton, 1 Drew. & Sm, 125.

 

* See also Otis ». Beckwith, 49 Ill. 121; Stone ». Hackett, 12
Gray, 227; Sherwood v. Andrews, 2 Allen, 79.
216 SPECIFIC PERFORMANCE.

A third person, particularly if a relation, may enforce
in Equity a stipulation made by another in his favor,
and for which the party who obtained it has given a
valuable consideration plainly with a view of benefiting
such third person, though such third person, as regards
each of the contracting parties, may be a volunteer ;' as
where a person who has contributed a valuable consider-
ation to a settlement, has exacted, as part of the contract,
that certain property shall be so settled, as that the
property, whether belonging to one of the parties or
the other, shall go to some near relative, in the event
of the intended limitation to the issue of the marriage
failing to take effect.2 But it would appear that, if
the party exacting the stipulation releases the other,
the stranger cannot enforce it, unless his condition in
life has been altered by the stipulation.’ 422.

A grant or obligation which is voluntary as regards
the grantee or obligee, ceases to be voluntary, where,
with the privity of the grantor or obligor, it forms the
consideration on the faith of which a marriage is con-
tracted and a settlement executed.* 423.
xmwo - SLI. Equity will not interfere, (1.) Where,
formance im ordinary cases, the contract has become

where it

wouldbe  weapable of being substantially performed

Se on the part of the person seeking relief,® or

inequitable. has been violated by him. (2.) If the

1 2 Sp. 286.* 2 2 Sp. 281.
3 See 2 Sp. 280, 281. * Payne v. Mortimer, 1 Gif. 118.+
5 St. 3 736.

® Telegraph, Despatch, etc., Co. v. McLean, L. R.8 Ch. Ap. 658.

 

* Gale v. Gale, L. R. Ch. D. 144. } St. Eg. Jur. 3 4324.
SPECIFIC PERFORMANCE. 217

plaintiff has been guilty of any negligence affecting
the essence of the contract ;' or if specific performance
is sought by a purchaser, after he has permitted a long
time to elapse, without evincing a fixed intention to
carry his contract into execution, although he may
have paid part of the purchase-money, or after he has
made frivolous objections to the title, and trifled or
shown a backwardness to perform his part of the agree-
ment, especially if circumstances are altered.’ (3.) If
specific performance is sought by the vendor, and there
is a substantial defect in the title of the whole or the
principal part of the property, not remediable before
the decree. (4.) If there is a substantial misrepresen-
tation or misdescription of the estate or property, in a
matter unknown to the purchaser, and in regard to
which he was not put upon inquiry; or if it appears
upon the evidence that there was, in the description ot
the property, a matter in which a person might bond
fide make a mistake, and he swears positively that he
did make a mistake, and his evidence is not disproved,
the Court will not enforce the specific performance
against him.’ Where the conditions of sale of a
public-house state that it is in the occupation of a
tenant, and a brewer agrees to buy it for the sale of
his beer, he cannot be compelled to complete his pur-

1 St. 2771; 2 Lead. Cas. Eq., 2d ed. 442, et seg.
2 Sugd. Concise View, 181.
3 Leyland v. Illingworth, 2 D. F. & J. 248; Higgins v. Samels,
2 Johns. & H. 460; Swaisland v. Dearsley, 29 Beav. 430; Cox v.
Coventon, 31 Beav. 378; Dimmock v. Hallett, L. R. 2 Ch. Ap.
21; St. 3778; Denny v. Hancock, L. R. 6 Ch. Ap. 1.
19
218 SPECIFIC PERFORMANCE.

chase if he finds that it is under lease to another brewer
for aterm, of which some years are unexpired.’ (5.) If
the title is doubtful, in the opinion of the Court,
although the Court itself may have a favorable
opinion of the title; for the Court has no means of
settling the question as against adverse claimants, or
of indemnifying the purchaser, if its own opinion
should turn out not to be well founded.? But if
the Court is clearly of opinion that the title is good,
it will not be deterred from enforcing specific per-
formance, by the fact that one of the conveyancing
council of the Court, or a judge of the Court below,
considered the title doubtful.? (6.) If the character
and condition of the property have been so altered that
the terms of the contract are no longer applicable to
the existing state of things.* (7.) If the defendant can
show that, by fraud or mistake, the thing bought is
different from what he intended; or if there was a
great mistake as to the price.® (8.) If the estate bought
is of a different tenure ;* as if it was described as free-

1 Caballero v. Henty, L. R. 9 Ch. Ap. 447.

2 Pyrke v. Waddingham, 10 Hare, 7, 10; Sykes ». Sheard, 2 D.
J. & 8.6; Collier » McBean, L. R. 1 Ch.. Ap. 81; Mullings v.
Trinder, L. R. 10 Eq. 449.*

3 Hamilton v. Buckmaster, L. R. 3 Eq. 323; Beioley v. Carter,
L. B.4 Ch. Ap. 230; Radford ». Willis, L. R. 7 Ch. Ap. 7; Bell
». Holtby, L. R. 15 Eq. 178.

* St. 750.

* Webster v. Cecil, 30 Beav. 62.+
§ 2 Lead. Cas. Eq., 2d ed. 453, et seq.

 

* St. Eq. Jur. @ 779a; Richmond ». Gray, 3 Allen, 25.
} Park v. Johnson, 4 Allen, 259.
SPECIFIC PERFORMANCE. 219

hold when in fact it is copyhold ;' or copyhold enfran-
chised under an Act of Parliament reserving to the
lord his mineral rights ;? or if it was described as free-
hold when leasehold,’ or as copyhold when freehold.‘
(9.) If material terms have been omitted in the agree-
ment, or there has been a variation of it by parol.®
(10.) If the contract is founded in imposition, surprise,
misrepresentation, undue influence, or fraud of any
kind ; as where property was put up for sale to the
highest bidder without mentioning any reserve, and
the auctioneer and an agent for the vendor both bid
against each other,® or where a purchaser, who is better
informed as to the value of the property than the
vendor, hurries the vendor into an agreement, without
giving him an opportunity of inquiry or advice.’ (11.)
If, after the day fixed for performance is past, specific
performance is sought by the purchaser, and the price
is inadequate, or by the vendor, and the price is unrea-
sonable.® (12.) In the case of ene entire agreement,
the Court cannot decree specific performance or part of
it, if it is unable to decree specific performance of the
other part.? But the principle that if the thing must
be performed at all, it must be performed in toto, does

1 Ayles v. Cox, 16 Beav. 23.

2 Upperton v. Nickolson, L. R. 6 Ch. Ap. 436, 444.

3 Sugd. Concise View, 212. « Ayles w. Cox, 16 Beay. 23.

5 St. 3770.

6 Mortimer v. Bell, L. R. 1 Ch. Ap. 10; 30 and 31 Vict. v. 48.

7 Walters v. Morgan, 3 D. F. & J. 718.

® Sugd. Concise View, 189.

9 Stocker v. Wedderburn, 3 K. & J. 393, 407; Ogden v. Fossick,
4D. F. & J. 426.
220 SPECIFIC PERFORMANCE.

not apply to an agreement which contemplated succes-
sive performances of different parts independently of
one another.’ And where an estate is agreed to be
purchased, and certain other things taken at a valuation
which are not at all an essential part of the purchase,
and the vendor refuses to appoint a valuer, the Court
will compel him to convey the estate without them.’
(13.) The Court will not force any one to take a title,
which it is evident will involve the taker in immedi-
ate litigation, unless he knew this when he bought the
property. (14.) The Court will not enforce specific
performance, if, on any other account, it would be
morally wrong or inequitable to do so.* 424.

And where there is a sufficient ground why specific
performance should not be enforced against a purchaser,
the Court will not enforce it, though something else

’ Wilkinson v. Clements, L. R. 8 Ch. Ap. 96, 110.

° Richardson ». Smith, L. R. 5 Ch. Ap. 648.

5 Pegler v. White, 33 Beav. 403.

4 St. @ 750, 750a, 751 a, 769, 787; 2 Lead. Cas. Eq., 2d ed. 453,
. et seg.; Directors of the Shrewsbury and Birmingham Rail. Co. ».
Directors of the North-western Rail Co., 6 H. L. Cas. 113; Falke
». Gray, 4 Drew. 651; Ormes v. Beadel, 2 Gif. 166; Tildesley v.
Clarkson, 30 Beav. 419; Denne v. Light, 8 D. M. & G. 774;
Reeves v. Greenwich Tanning Co., 2 Hem. & M. 54; W. vw
B—.,, and B o. W , 32 Beav. 574; Vivers v. Taite, 1
Moo. P. C. (N.8.), 516; Cochrane v. Willis, 34 Beav. 359; L. R.
1 Ch. Ap. 58; Baskcomb v. Beckwith, L. R. 8 Eq. 100.*

 

 

 

 

* Taylor v. Longworth, 14 Peters, 178, 174; Bank of Alexan-
dria v. Lyon, 1 Peters, 376, 382; Cathcart v. Robinson, 5 Peters,
264, ‘
SPECIFIC PERFORMANCE. 221

than that may be his actual motive for resisting spe-
cific performance. 425,

The Court will not refuse to decree the specific per-
formance of an agreement on the ground that one of
the contracting parties has mistaken its clear legal
effect.’ 426.

Notwithstanding a party may have taken possession
before the fulfilment of the promises of the opposite
party to do necessary work, he may set up the non-
fulfilment of such promises as a defence to a specific per-
formance of the agreement to take the property.? 427.

XIV. In like manner, Equity will not
enforce assignments, contracts, or covenants will Equity
which are against public policy. 428. And assign

ments, con-

hence, tracts, or
covenants,

1, An officer in the army or navy, or other against
public

officer of the government, cannot assign his policy; asin
- i the case of,
future accruing pay, or other remuneration te cee
. fase hin
1 1 ments b
connected with the right of the government ments by,
to future services from him; because it is ‘he sovern-

ment.

contrary to the honor, dignity, and interest of
the State that its servants should be in danger of being
reduced to poverty by anticipating those resources
which were intended to place them in a suitable con-
dition of respectability, comfort, and efficiency.“ But

1 Denny v. Hancock, L. R. 6 Ch. Ap. 1.

2 Powell v, Smith, L. R. 14 Eq. 85.

8 Lamare v. Dixon, L. R. 6 H. L. 414.
4 See St. 2 769, 1040 c-1040f, and notes; 2 Sp. 867.*

 

* The assignment of claims against the United States in certain
cases is prohibited by statute. See Wanless v. The United States,
6 Ct. of Claims, 123; Bates’s Case, 4 Ct. of Claims, 569.
222 SPECIFIC PERFORMANCE.

a man may assign a pension given him entirely for
past services; and prize-money may be assigned.’ And
an assignment of a pension granted by the late East
India Company is valid.” And it has been held that
the pension payable to a former officer of the East
India Company out of the revenues of India since the
Transfer Act, 21 and 22 Vict. c. 106, may be assigned.’
429.

9. Andthose 2: OD principles of public policy, Equity

involving + H s . .
thanpedy, Will not uphold assignments which involve

main-

lenance, or Champerty, or maintenance, or buying of pre-
preter tended titles. Champerty (campi partitio)
aa is properly a bargain between a plaintiff or
defendant in a cause, and another person who has no
interest in the subject in dispute (campum partire), to
divide the land or other property sued for between
them, if they prevail, in consideration of the other per-
son carrying on the suit at his own expense. Main-
tenance, of which champerty is a species, is properly
an officious intermeddling in a suit which in no way
belongs to one, by maintaining or assisting either party
with money or otherwise, to prosecute or defend it.
Each of these is punishable, both at the Common Law
and by statute, as tending to keep alive strife and con-
tention, and to pervert the remedial process of the Law

1 2 Sp. 867. : ° Heald v. Hay, 3 Gif. 467.

3 Carew v. Cooper, 4 Gif. 619. /

* St. 4 1049; see Reynell v. Sprye, 1 D. M. & G. 660.*

 

* Merritt o. Lambert, 10 Paige, 352; Lathrop v. Amherst Bank,
9 Mete. 489.
SPECIFIC PERFORMANCE. 223

into an engine of oppression. And the stat. 32 Hen.
VIII, c. 9, prohibits the transfer of any right or title
to hereditaments, unless the seller or his ancestors, or
those by whom he claims have been in possession of
the same, or of the remainder or reversion thereof, or
of the rents and profits thereof, for one year next be-
fore the sale." And Courts of Equity enforce all the
principles of Law upon these points. Exceptions are
made, however, to the general rule against champerty
and maintenance, in the case of father and son, or of
an heir apparent, or of the husband of an heiress, or of
a master and servant, or the like? 430.

3. Upon the same principle of not giving , Ne
any encouragement to litigation, especially assign-

ments of
when undertaken as a speculation, Equity, mere naked

right to
will not enforce the assignment of a mere litigate
naked right to litigate, that is, a right which, from its
very nature, is incapable of conferring any benefit ex-
cept through the medinm of a suit; such as a mere
naked right to set aside a conveyance for fraud.’ The
right to complain of a fraud is not a marketable com-
modity ; and if it appears that an agreement for pur-
chase has been entered into for the purpose of acquir-
ing such a right, the purchaser cannot call upon the

1 St. 2 1048, and note, and 10484; 2 Sp. 869; Hilton v. Woods,
L. R. 4 Eq. 482.

2 St. 2 1049; 2 Sp. 870, 871.

3 St. 31040g, and note; 2 Sp. 868, 869, 872. See Hill v. Boyle,
_L. B-4 Eq. 260.*

 

* Milwaukee, etc., R. R. Co. v. Same, 20 Wise. 174. |
224 SPECIFIC PERFORMANCE.

Court for a specific performance of the agreement.’ But
a person may take an assignment of the whole interest
of another in a contract, or security, or property which
is in litigation, provided he does not make any ad-
vance beyond the mere support of the interest which
he has so acquired. Thus, notwithstanding the statute
32 Hen. VIII, c. 9, above referred to, an equitable
interest under a disputed contract for the purchase of
real estate may be the subject of a sale. If such an
interest is sold by the purchaser under such original
contract, he becomes in Equity a trustee for his sub-
purchaser, and must permit the sub-purchaser to use
his name in legal proceedings for obtaining the benefit
of the contract.’ And without entering into any cove-
nants for the purpose, such sub-purchaser is obliged to
indemnify the original purchaser from all the acts
which he must do for the sub-purchaser’s benefit. And
so, a legatee may assign his legacy, and a creditor may
assign his interest in a debt, although he may have
commenced a suit to recover it? In these cases there
is an actual interest in the assignor, independently of
litigation ; and although it may require continued liti-
1 De Hoghton v. Money, L. R. 2 Ch. Ap. 164.

2 St. 3 1050-4; 2 Sp. 863, 868-871 ; Myers v. United Guarantee
Company, 7 D. M. & G. 112; Tyson v. Jackson, 30 Beav. 384.*

 

* But see St. Eq. Jur. 31057¢. Danforth v. Streeter, 28 Vt. 490.
“The bona fide purchaser of a bond or note not negotiable, or other
chose in action, which is of the nature of a debt, which is repre-
sented to be due, and which the purchaser believes to be due, may
sue upon the same, and not incur censure from the Law, and all con-
tracts founded upon any such consideration are perfectly valid.” Id.
SPECIFIC PERFORMANCE. 225

gation to enforce it, yet the parties may possibly adjust
the matter without further proceedings; whereas, in
the case first mentioned, there is no interest in the as-
signor, or none but what may result from oversetting
an interest in the other party. 431. -

4, It is the rule of the Common Law that 4 common
no possibility, right, title, or thing in action, ee

can be granted to third persons, except in the Sfnmstty.

case of the Sovereign, to whom and by whom things in

an assignment could always be made; for it *“”™

was thought that a different rule would be the means
of multiplying contests and suits. And at Law, until
the Judicature Act, 1873, this still continued to be the
general rule, except in the case of negotiable instru-
ments and some few other securities, or where a debtor
assented to the transfer of a debt, so as to enable the
assignee to maintain a direct action against him on the
implied promise which resulted from such assent; and
except in the case of possibilities coupled with an in-
terest, and contingent interests in real estate, which
might be granted and assigned at Law, in consequence
of the stat. 8 and 9 Vict. c. 106;' and except in the
case of assignees of policies of marine or life assurance,
who might sue in their own names in consequence of
the statute 30 and 31 Vict. c. 144, and 31 and 32
Vict. c. 86. And in the case of assignments of bond
or other debts which are an exception to the above-
mentioned rule, it was necessary to sue in the name of
the original creditor; the person to whom it is trans-

1 St. 2 1039; 2 Sp. 850, 851, 855.
226 SPECIFIC PERFORMANCE.

ferred being regarded rather as an attorney than as an
assignee.’ 432. ;

, Even before the late Statute of Wills, a
HE in devise of a possibility coupled with an inter-
pe est, or of a contingent interest, whether in
real or personal estate, was good at Law.’ And a
covenant to settle, charge, dispose of, or affect property
to be hereafter acquired, will operate in Equity upon the
property so afterwards acquired. And Courts of
Equity gave effect to assignments for valuable consid-
eration, of trusts and possibilities of trusts, and con-
tingent interests, whether in real or personal estate,
contingent gains, such as freight to be earned or a
cargo to be procured, and even mere expectancies of
heirs to their ancestor’s estate, and choses in action.
For such assignments of a chose in action are consid-
ered in Equity as amounting to an agreement to per-
mit the assignee to make use of the name of the
assignor at Law, in order to recover the debt, or to
reduce the property into possession; or as a contract
entitling the assignee to sue in Equity in his own name,
and enforce payment of the debt directly against the
debtor, whether he has assented or not, making him,
as well as the assignor, if necessary, a party to the ac-
tion.“ And such assignments of contingent interests,
possibilities, and expectancies, are regarded in Equity
as amounting to a contract to assign, when the interest
becomes vested ; and when the interest does so become

1 St. 2 1056. - 2 2 Sp. 854. 3 9 Sp. 254.
+ See St. 2 1040, 1040c, 1044, 1055, 1057; 2 Sp. 852, 865, 866,
896.
SPECIFIC PERFORMANCE. 227

vested, the claim of the assignee is enforced, not indeed
as a trust, but as a right under a contract... 433.

_ By the Judicature Act, 1873 (36 and 37 Aaa
Vict. Cs 66), 8. 25 (6), i Any absolute assign- aad tees
ment by writing under the hand of the as- ™ 24.
signor (not purporting to be by way of charge only),
of any debt or other legal chose in action, of which ex-
press notice in writing shall have been given to the
debtor, trustee, or other person from whom the assignor
would have been entitled to receive or claim such debt
or chose in action, shall be, and be deemed to have
been effectual in law (subject to all equities which
would have been entitled to priority over the right of
the assignee if this Act had not passed), to pass and
transfer the legal right to such debt or chose in action
from the date of such notice, and all legal and other
remedies for the same, and the power to give a good
discharge for the same, without the concurrence of the
assignor: Provided always, that if the debtor, trustee,
or other person liable in respect of such debt or chose
in action shall have had notice that such assignment
is disputed by the assignor or any one claiming under.
him, or of any other opposing or conflicting claims to
such debt or chose in action, he shall be entitled, if he
think fit, to call upon the several persons making claim
thereto to interplead concerning the sanfe, or he may if
he think fit pay the same into the High Court of Jus-
tice under and in conformity with the provisions of the
Acts for the relief of trustees.” 434.

1 St. 3 1040 b.
228 SPECIFIC PERFORMANCE.

Het As a general rule, anything written, said,
amour? or done, in pursuance of an agreement and
mene for valuable consideration, or in considera-
tion of an antecedent debt, to place a chose in action
or fund out of the control of the owner, and appropriate
it in favor of another person, amounts to an equitable
assignment.’ So that an agreement between a debtor
and a creditor, that the debt shall be paid out of a
specific fund coming to the debtor, will operate as an
equitable assignment. And an order given by a debtor
to his creditor upon a person owing money to such debtor
or holding funds belonging to him, directing such person
to pay the creditor out of such money or funds, will
amount to an irrevocable equitable assignment of such
money or funds, or a sufficient part thereof, if made in
consequence of a direct agreement.’ And if such money
or fund is handed over to the assignor by the person so
ordered to pay, he will be made to pay it over again to
the assignee.’ But where a railway company was in-

1 2 Sp. 855, 860, 861, 907; Chowne v. Baylis, 31 Beav. 351.*

2 Row v. Dawson, 1 Ves. Sen. 331; Ex parte South, 3 Swans.
392; Lett v. Morris, 4 Sim. 607; Burn v. Carvalho, 4 My. & Cr.
690; L’Estrange v. L’ Estrange, 13 Beav. 281; Ex parte Steward, 2
M. D. & G. 265; Rodick ». Gandell, 1 D. M. & G. 777; Diplock v.
Hammond, 2 Sm. & Gif. 141; 2 W. R. 287; Watson v. Duke of
Wellington, 1 Russ. & My. 602; Malcolm v. Scott, 3 Hare, 39;
2 Sp. 855, 860, 861, 907; Coote Mortg., 3d ed. 234.+

3 Jones v. Farrell, 1 D. & J. 208.f

 

* St. Eq. Jur. 2 1047.

+ See also Mandeville v. Welch, 5 Wheat. 277, 286; Tiernan v.
Jackson, 5 Peters, 98; St. Eq. Jur. 3 1044, et seg.

} Brashear v. West, 7 Peters, 608; Judson v. Corcoran, 17 How.
Sup. Ct. 614.
SPECIFIC PERFORMANCE. 229

debted to their engineer, who was greatly indebted, to
his banker, and the engineer authorized the solicitors of
the company by letter to receive the money due to him
from the company, and requested them to pay it to the
banker, and the solicitors by letter promised the banker
to pay him such money on receiving it; it was held
that this did not amount to an equitable assignment of
the debt. And where a consignment of property is
made by the owner, not in consequence of any obliga-
tion or contract express or implied, but of his own
motion, with orders to pay over the proceeds to a third
person, this is not an irrevocable appropriation at Law
or in Equity, though the third person be a creditor ;
nor is a merely voluntary arrangement made by the
debtor himself for payment of a creditor out of a par-
ticular fund, though communicated to the creditor, ab-
solutely binding so that it cannot be revoked, that is,
in the absence of special circumstances (as forbearance
and the like on the part of the creditor), so as to raise
a case of contract or of fraud.’ .435.

When an assignment is made, everything wrt must

must be done towards the obtaining of quasi Dygpre io.

possession

possession that the subject admits of, in order [haeran

to prevent payment to the assignor himself, arene
and in order to acquire by assignment a complete title
to a chose in action, as against trustees in bankruptcy
or insolvency, or as against subsequent purchasers or
incumbrancers, who might otherwise be deceived by
apparent possession and ownership remaining in a per-

1 Rodick v. Gandell, 1 D. M. & G. 763. 2 2 Sp. 862.
230 SPECIFIC PERFORMANCE.

son who in fact is not the owner, or, in case of volun-
tary assignments, even as against the assignor himself.
Hence notice of the assignment of a debt should be
given to the debtor; and if a bond is assigned, it ought
to be delivered over to the assignee.’ Notice of the
assignment of a policy of insurance must be given to
the insurance office.? It is not necessary that the notice
should be given in the lifetime of the assured; the
principle is that it is sufficient if the notice is given to
the party having the fund, while it remains in his pos-
session.’ In all assignments of equitable interests
other than equitable estates, he who gives formal notice
to the holder of the fund has priority over him who
does not. In general, notice to one of several obligors
or trustees is sufficient. Where stock standing in the

1 St. 2 1047; 2 Sp. 855-7; Ryall v. Rowles, 2 Lead. Cas. Eq.,
2d ed. 615, e¢ seq.; and remarks of Turner, L. J., in Ex parte
Boulton, 1 D. & J. 178, 179; Holroyd v. Marshall, 2 Giff. 382; 2
D.F. & J. 596; 10 H. L. Cas. 191; Stansfeld v. Cubitt, 2D. & J.
222; Warriner v. Rogers, L. R. 16 Eq. 340.*

2 Coote Mortg., 3d ed. 231; Thompson v. Tompkins, 2 Dr. &
Sm. 8.

3 In re Russell’s Policy Trusts, L. R.15 Eq. 26.

* Coote Mortg., 3d ed. 231; Browne v. Savage, 4 Drew. 635;
Willes v. Greenhill (No. 1, 2), 29 Beav. 376, 387; 4 DF. & J.
147 ; Bridge v. Beadon, L. R. 3 Eq. 664; Lloyd v. Banks, L. R.
4 Eq. 222; In re Brown’s Trusts, L. R. 5 Eq. 88.+

 

* Loomis v. Loomis, 26 Vt. 552. But see also Kennedy v. Parke,
2 C. E. Green, 415. In cases of assignment of a debt where the
assignor has collateral security therefor, the assignee will be en-
titled to the full benefit of such securities unless it is otherwise
agreed between the parties. Story Eq. Jur. 4 1047a. So the
guarantee of a previous assignor of a mortgage passes as incident.
Craig v. Parkes, 40 N. Y. 181.

¢ 1 Perry on Trusts, 2 438.
SPECIFIC PERFORMANCE. 231

name of a trustee is assigned, and notice cannot be given
to the trustee, he who first obtains a distringas on the
stock will have a priority. Where a sum standing in
the name of trustees is given by a testator as a specific
legacy, the executors not having assented to the legacy,
the incumbrancer under the specific legatee who first
gives notice to the executors is entitled to priority... In
the case of an assignment of an interest in a fund in
Court, the assignee should obtain a stop order,’ unless
the fund constitutes part of a testator’s estate; in which
case notice to the executor will be sufficient without a
stop order.* In the case of an assignment of costs of
suit not yet ordered to be paid, notice should be given
to the trustees to whom they would be payable.* In
the case of an assignment of freight, the assignee should
give notice to the charterers of the assignment.’ In
the case of shares in a company, notice must be given
to the company.’ But verbal notice to the directors,
in the course of the transaction of the business of the
company, is sufficient.’”. It was held that assignees in
bankruptey, who neglected to give notice, lost their
priority equally with particular assignees.’ But it has

1 2 Sp. 857, 858; Browne v. Savage, 4 Drew. 635.

2 Bartlett v. Bartlett, 1 D. & J. 127; Stuart v. Cockerell, L. R. 8
Eq. 607. ;

3 Thompson v. Tompkins, 2 Dr. & Sm. 8.

4 Day v. Day, 1 D. & J. 144.

5 Brown v. Tanner, L. R. 2 Eq. 806.

* Ex parte Boulton, 1 D. & J. 163.

7 Ex parte Agra Bank, L. R. 3 Ch. Ap. 555.

8 In re Barr’s Trust, 4K. & J. 219; Stuart v. Cockerell, L. R.
8 Eq. 607; In re Russell’s Policy Trusts, L. R. 15 Eq. 26.
232 SPECIFIC PERFORMANCE.

since been held by Lord Cairns, L. C. (reversing the
decision of Lord Romilly, M. R.), that where. the
trustee of a fund became acquainted (without notice) of
the insolvency of his cestui que trust, and acted on the
information, formal notice by a subsequent assignee
did not give him priority over the assignee in insolv-
ency.’ In order to maintain his priority, it is sufficient
if a prior assignee of the proceeds to arise from the
sale of an officer’s commission gives notice to the army
agent of the regiment before the money has reached
the agent’s hands, though a subsequent assignee gave
notice first.’ 436.

When a debt not legally assignable has
assignee of been equitably assigned by the creditor to a
neve purchaser for valuable consideration, and
the debtor has had notice of the assignment, all pay-
ments which he may thereafter make to the purchaser
on account of the debt, must be considered to be well
made, so far at least as the debtor is concerned, not-
withstanding that the purchaser may in fact, after no-
tice of his purchase to the debtor, have sold or mort-
gaged the debt to some other person; provided that
the payments were made by the debtor without notice
of the latter sale or mortgage. Nor, in such a case, is
it incumbent on him, before making a payment to the

1 Lloyd v. Banks, L. R. 3 Ch. Ap. 488.

2 Buller v. Plunkett, 1 Johns. & H. 441. On the subject of
notice in the case of officers, see also Webster v. Webster, 31 Beav.
393 ; Somerset v. Cox, 33 Beav. 634; Addison v. Cox, L. R. 8 Ch.
Ap. 76. ?
SPECIFIC PERFORMANCE. 233

original purchaser, to require production or proof of
the original assignment.! 437.

An equitable assignee of a legal term is .,, aiaiant
not liable to be sued in Equity by the lessor cauitable
for rent, or for damages in respect of breaches 18#! term.
of covenants, even though he may have been in pos-
session.? 438, i

As a general rule, an assignee of a chose _
in action, other than a bill of exchange or a taie bob:
note, takes it subject to the same equities as equities of
it was liable to in the hands of the assignor.* “"""”
And a trustee in insolvency stands on the same footing
as a particular assignee.* But the person entitled to
such equities may release them, either expressly or by
implication arising from his course of conduct.? 439.

5. The Courts of Equity will not enforce , 5.42,
the specific performance of an agreement to tant to
refer any matter; deeming it against public 27>itration.
policy to exclude any person from the appropriate
judicial tribunals. Neither will Equity compel arbi-

trators to make an award. Nor when they have made

1 Stocks v. Dobson, 4 D. M. & G. 11, 17.

* Cox v. Bishop, 8 D. M. & G. 815.

8 2 Sp. 863-5; Mangles v. Dickson, 3 H. L. Cas. 702; Smith v.
Parker, 16 Beav. 119; Rolt v. White, 31 Beav. 520; Rodger v.
The Comptoir d’Escompte de Paris, L. R. 2 P. C. 393; Henderson
v. The Comptoir d’Escompte de Paris, L. R. 5 P. C. 253; Char-
tered Bank of India, ete., v. Henderson, L. R. 5 P. C. 501.*

4 In re Atkinson, 2 D. M. & G. 140.

5 In re Northern Assam Tea Company; Ex parte Universal
Life Assurance Company,.L. RB. 10 Eq. 458.

* 2 Perry on Trusts, @ 831; Cook v. Tullis, 18 Wall. 332.
20

 
234 SPECIFIC PERFORMANCE.

an award, will Equity compel them to disclose the
grounds of their judgment.’ Nor will it interfere in
the case of an agreement which was agreed to be wholly
or partly determined by arbitrators who have not yet
arbitrated.” 440.

‘Courts of Equity will enforce a specific performance
of an award which is unexceptionable, and in which
the parties have acquiesced.’ And where both parties
have for a long time acquiesced in or acted upon an

‘award, even though objections might have been orig-

inally urged against it, an application to set it aside
will not be entertained.* But where an arbitrator has
been guilty of unfairness or partiality, relief will be
given against his award.* But there must be proof,
and not merely suspicion, of this.6 441.

On the question of setting aside an award, Courts
of Law and Equity have acted on the same principles.’
Any kind of irregularities may be waived by the par-
ties.” 442,

Where there is an engagement between an architect
and his employer that the total outlay shall not exceed
acertain amount, and that engagement is concealed
from the builder, it annuls a proviso for referring all

1 §t. @ 1457; Duke of Buccleuch v. Metropolitan Board of
Works, L. R. 5 H. L. 418.
2 Darbey v. Whitaker, 4 Drew. 134.
3 St. 2 1458, 1459; Blackett v. Bates, 2 Hem. & M. 610.
4 St. 2 1459. 5 Ormes v. Beadel, 2 Gif. 166.
® Moseley v. Simpson, L. R. 16 Eq. 226.
7 Moseley v. Simpson, L. R. 16 Eq. 226.
2 id indie hincinsaataeianneesa aR iS =

PO gs ae

a HE Ate meme
SPECIFIC PERFORMANCE, 935

matters to the arbitration of the architect, so far as the
builder is concerned.’ 443.

XV. Courts of Equity will enforce a spe-
cific performance of a parol contract within sonirarta
the Statute of Frauds— 444, ee

1. Where it is fully set forth by the plain- emeee
tiff, and it is admitted by the answer of the dete oy
defendant, and the defendant does not insist and ad-"
on the statute as a bar. For, under these
circumstances, there can be no fraud. And, although
there may indeed be a temptation to the defendant to
commit perjury, yet that is the case with every answer
where the defendant’s interest is concerned. And as
the defendant does not insist on the Statute, he may be
deemed to have waived it; and the rule is, Quisque
renuntiare potest yuri pro se introducto.? But if the
defendant insists on the Statute as a bar, although he
confesses the agreement, Courts of Equity will not en-
force it; for that would be contrary to the express pro-
visions of the Statute.’ 445.

2. Equity will also enforce such a parol 4 whore
agreement where it was intended to be re- {he 74ue
duced to writing according to the Statute, Drying mas
but that has been prevented by the fraud of °¥ **"*
one of the parties.* 446.

3. A parol agreement will also be enforced, Aen
whether it is an original agreement or a va- partly per-
riation of or substitute for a prior written
agreement, where it is a ee ere and it

1 Kimberley'v: Dick, 13 Eq: 1,19. a See eae
2 St. 2 755-7, and notes. 3 St. 4 787. ~~ © §t.°3 768. ©
236 SPECIFIC PERFORMANCE.

has been partly carried into execution, and it is shown,
by satisfactory evidence, to be clear, definite, and un-
equivocal in all its terms.’ 447.

habs As to the acts which will be deemed a
geeurt part performance, they should be such as are
ance: clearly and exclusively referable to a com-
plete agreement, and must have been done with no
other view than to perform such agreement;’ and they
must have put the party who has performed them
in such a situation, that it would be a fraud, in the
other party, after allowing him to do them, not fully
to perform the agreement.’ For the ground on which
Courts of Equity enforce specific performance in such
cases is, that if the party allowing these acts to be done
were not obliged to fulfil the agreement, it would be
permitting him to commit a fraud, the very evil which
the Statute was designed to prevent.‘ Hence, a de-
positing, securing, or paying of the purchase-money
will not be deemed such a part performance as will
take the case out of the Statute; for the money can be

1 St. 2 759, 764, 770, note; Lester v. Foxcroft, 1 Lead. Cas. Eq.,
2d ed. 625, et seg. Lady E. Thynne v. Earl of Glengall, 2 H. L.
Cas. 158; Nunn »v. Fabian, L. R. 1 Ch. Ap. 35; Coles v. Pilking-
ton, L. R. 19 Eq. 174; Williams v. Evans, L. R. 19 Eq. 547.*

2 St. 3.762; Shillibeer v. Jarvis, 8 D. M. & G. 79.

3 St. 2761; Surcome v. Pinniger, 3 D. M. & G. 571.

£ St. 3 759.

 

* The rule is well settled that in Equity part performance takes
a, parol agreement out of the Statute of Frauds, on the ground that
notwithstanding the Statute, it would be a fraud upon the party if
the transaction were not completed. See cases cited in Am. note
to Lester v. Foxcroft, above.
SPECIFIC PERFORMANCE. 237

recovered back.’ Nor will the delivery of an abstract
of title, giving directions for conveyances, going to
view the estate, fixing upon an appraiser to value
stock, making valuations or admeasurements, register-
ing conveyances, and acts of the like preliminary or
ancillary and equivocal character, be considered as a
part performance of the agreement, so as to take it out
of the Statute? But if upon a parol agreement the
purchaser is admitted into possession, and such pos-
session is exclusively referable to the contract, this
amounts to a part performance which will take the
case out of the Statute; because he is made a trespasser,
and is liable to answer as such, if there is no valid
agreement at Law or in Equity.? And so, if a father,
in consideration of the marriage of his daughter, makes
an oral promise to give his daughter a house, and after
the marriage he puts his daughter into possession, and
she remains in possession till his death, the possession
prevents the Statute of Frauds being set up as a bar
to the proof of the parol contract; and it was held that
any incumbrance on the house must be paid out of the
settlor’s estate.* And so, if upon a parol agreement to
grant a lease, the lessee is let into possession, and al-
lowed to spend money on the faith of the agreement,
the agreement will be enforced.’ But the execution of
1 St. 3 760. 2 St. 762.
3 St. 2.761, 763; Pain v. Coombs, 1 D. & J. 34.*

“ Ungley v. Ungley, L. R. 5 Ch. D. (Ap.) 887.
5 Farrall v. Davenport, 3 Gif. 363.

 

* See also Eaton v. Whitaker, 18 Conn. 222; Malins v. Brown,
4 Comst. 403.
238 SPECIFIC PERFORMANCE.

an indenture of lease by a trustee has been held not to
be a part performance of a parol agreement to lease,
where the power to lease was only to arise on a request
in writing by a married woman, which had not been
made.’ 448.

XVI Paro) © WI. With respect to a parol variation or
variations addition, it is to be observed that evidence
meee of it was totally inadmissible at Law; and
that the most unequivocal proofs of it will be required in
Equity; and, in general, it will only be allowed to be
ased by a defendant in resisting a specific performance ;
not by a plaintiff in compelling such performance.
The reason of this distinction is, that the Statute does
not say that a written agreement shall bind, so as to
prevent a defendant from insisting on a parol variation
thereof, but only that a parol agreement shall not bind.
Exceptions occur, however, to this doctrine of the in-
ability of a plaintiff to make use of a parol variation.
(1.) Where there has been such a part performance of
the parol portion of the agreement as would enable
the Court to decree a specific performance in the case
of an original and independent agreement. (2.) Where
an omission has occurred by fraud; and in cases not
within the Statute of Frauds, where there has been a
clear omission by mistake. (3.) Where the defendant
sets up a parol variation or addition, and the plaintiff
seeks a specific performance of the contract, with such
variation or addition? 449,

” Phillips v.. Edwards, 33 Beay. 400.
2 See St. ¢ 770, note, and 770a; Woolam v. Hearn, 2 Lead. os
Kq., 2d ed. 404; Laver v, Bieler, 32 Beay. 1. soe
SPECIFIC PERFORMANCE. 239

XVII. It is the practice of Courts of
Equity to enforce strict truth in the dealings aise ene
forced.

of one man with another; so that if one man

makes a déliberate promise to another, with a view to
induce that other to do a particular act, which, relying
on such promise, he accordingly does, the promissor
shall be compelled to make good his wordt. Thus,
where a testator induces a person to render his valuable
services on the faith of a verbal promise, that he would,
in consideration of such services, leave such person
certain property, and he makes a will leaving such
property accordingly, and shows it to the donee, he
cannot afterwards revoke the gift? And when a mar-
riage takes place on the faith of a promise to make a
settlement, such promise will be enforced.’ And where
a person intends to make certain provisions, gifts, or
arrangements, for the benefit of others, but omits to do
so, on the faith of a promise by another person to carry
into effect what was so intended,.such a promise will
be specifically enforced in’ Equity; so that where an
executor promised a testator that he would pay a
legacy, and told the testator he need not put it in his
will, the executor was decreed specifically to perform
the promise.* 450.

1M. R. in Loxley v. Heath, 17 Beav. 532; Laver v. Fielder, 32
Beay. 1, 12; Tudor’s Lead. Cas. in Eq. 782; Coverdale v. East-
wood, L. R. 15 Eq. 121, 131.

° Loffus v. Maw, 3 Giff. 592.

5 Alt v. Alt, 4 Giff 84; Coverdale v.-Eastwood, L. R.15 Eq.
121.

* St. 2 781.
,
240 SPECIFIC PERFORMANCE.

ae XVIII. Equity will not enforce the spe-
Agreement cific performance of an agreement to borrow
tu borrow.

or lend a sum of money.’ 451.
ae XIX. There are many cases-where the
tive agree= ~ agreement is merely negative, and the Court
eee acts merely by injunction; as in the case of
a covenant not to dig gravel. ‘These may more prop-
erly be termed cases of decrees for specific adherence to
agreements.’ 452.

XX. A person cannot evade performance

XX. Pay- :
ae of his contract by payment of the penalty

for the breach of it.*(a) 453.

1 Rogers v. Challis, 27 Beav. 175; Larios v. Bonany y Guerty,
L. R. 5 P. C. 346. :

2 See St. 3 721.

8 2 Sp. 254; Peachy v. Duke of Somerset, 2 Lead. Cas., 2d ed.
895, et seg.; Long v. Bowring, 33 Beav. 585.*

 

(a) As to the general jurisdiction of the Courts of Equity in
matters of specific performance, see Fry on Specific Performances,
and Cuddee v. Rutter, 1 Lead. Cas. Eq., 2d ed. 709.

* St. Eq. Jur. 3 7931.
TITLE III.

Of Adjnstive Equity.
CHAPTER I.
OF ACCOUNT IN GENERAL.

In matters of account standing on equi- surisaiction
table claims, Courts of Equity have universal °f Eavity. *
jurisdiction." In matters of account growing out of
privity of contract, and cognizable at Law, Courts of
Equity have a general jurisdiction, where there are
mutual and complicated accounts, and also where the
accounts are on one side, but they are very complicated
and intricate, or a remedy which is or was peculiar to
a Court of Equity is required. But where the ac-
counts, whether receipts or payments, or both, are all
on one side, or where there is a single matter on the
side of the plaintiff, and mere set-off on the other
side, and where, in each case, no complication exists,
and no peculiar equitable remedy is sought or required,
Courts of Equity will decline taking jurisdiction.’
The relation of principal and agent does not of itself

1 St. 2 454.

2 See St. 3 454, 459, 511, 512; Phillips v. Phillips, 9 Hare, 471;
Fluker v. Taylor, 3 Drew. 183, 192; Padwick v. Hurst, 18 Beav.
575; Smith v. Leveaux, 2 D. J. & 8.1; Shepard ». Brown, 4 Gif.
208; Southampton Dock Company v. Southampton Harbor and
Pier Board, L. R. 11 Eq. 254; Kimberley». Dick, L. R. 13 Eq. 1.
244 ACCOUNT IN GENERAL.

entitle the principal to come into Equity for an account,
if the matter can be fairly tried at Law.’ 454.

Division er Accounts may be divided into open, stated,
accounts. and settled accounts. 455.

oui An open account is an account of which
accounts. the balance is not struck, or which is not ac-
cepted by both parties. 456.

Stated ° A stated account is one that is accepted
accounts. by both parties. This acceptance need not
be expressed, but may be implied from circumstances ;
as, if no objection is made to the account within a rea-
sonable time. What is a reasonable time, is to be de-
termined by the habit of business ; and the usual course
is required to be followed, unless there are special cir-
cumstances, constituting a ground for variation. Be-
tween merchants, acquiescence is presumed, under
ordinary circumstances, after a lapse of several posts.’
457,

aes It is ordinarily a good bar to a suit for an
aceount is account that the parties have already stated

ordinarily a

bar toa suit the items and struck the balance; for under

account. such circumstances there is an adequate
When itis remedy in a Court of Law. But if there is
nots any mistake, omission, accident, or fraud,
by which the account stated is vitiated, and the bal-

’ Barry v. Stevens, 31 Beav. 258; Smith v. Leverux, 1 Hem. &

M. 123; 2D. J. &S.1*
* St. 2 526.+

 

* St. Eq. Jur. 462 a.
t See also Wiggins v. Burkham, 10 Wall. 129.
ACCOUNT IN GENERAL. 245

ance is incorrectly fixed, a Court of Equity will inter-
fere; in some cases, by directing the whole _
account to be opened and taken de novo; in es of
others, by allowing it to stand, with liberty sii
to the plaintiff to surcharge and falsify, or by simply
opening the account to contestation as to one or two
items which are specially set forth by the plaintiff in
the suit." The showing an omission for yoaning of
which credit ought to have been taken, is a ,Sy"b*7e”
surcharge; the proving an item to be wrongly © *!¥-”
inserted is a falsification. The onus probandi ,,,,,,
is always on the party having the liberty to 77d.
surcharge and falsify; and the liberty ex- pronto
tends to the examination, not only of errors {he ieerty
of fact, but also of errors in law.? 458. ee

Generally where an account has been ;
settled, the rule is only to give liberty to setled
surcharge and falsify the account, if errors of ine wrant
fact or of law are shown in the account; but where
an account has been settled between a trustee and his
cestui que trust, under circumstances of fraud or misrep-
resentation or undue influence used on the part of the
trustee, there is scarcely any length of time that will
prevent the Court from opening the account altogether.’
459.

Acquiescence in an account, even for a goqui.
considerable time, does not of itself establish °¢*ne*
the fact of the account having been settled.* 460.

1 St. 2 623. 2 St. 3 525. 3 St. 3.527; 2 Sp. 942.
4 St. 2 528; see Hunter v. Belcher, 2 D. J. & S. 194, 202.
246 ACCOUNT IN GENERAL.

areas Where, however, the demand would have
tne been cognizable at Law, Courts of Equity
are governed by the Statute of Limitations. But
when the demand is purely equitable and the bar of
the Statute is inoperative, they are sometimes regulated
by the analogy of Law and sometimes by their own in-
herent principles, not to entertain stale demands, and
not to encourage laches or negligence; from the diffi-
culty of doing entire justice when the transactions have
become obscure; and from the consciousness that the
repose of titles and the security of property are mani-
festly promoted by fully acting upon the maxim, Vigi-
lantibus, non dormientibus, jura subvenient.’ 461.

The Statute of Limitations (21 Jac. 1, c. 16), does
not apply where a fiduciary relation exists between the
parties, whether as express trustee and cestui que trust,
or as principal and agent.? 462.

Lapse of time will not of itself bar an executor of an
executor of his right to have an account of the original
testator’s estate taken, with a view to ascertain such
executor’s liabilities as an accounting party. 463.
pre The general law as to the appropriation of
tion of pay- payments is this: the debtor is entitled to

apply the payments at the time of making
them, in such a manner as he thinks fit. In default

1 St. @ 529; Knox v. Gye, L. R. 5 H. L. 656; see supra, par. 33.

* Obee v. Bishop, 1 D. F. & J. 142; Brittlebank v. Goodwin,

L. BR. 5 Eq. 545; Burdick ». Garrick, L. R. 5 Gh. Ap. 233.*
3 Smith v. O'Grady, L. R. 3 P. C. 311.

 

* See also Angell on Limitations (6th ed), p. 161, et seg., and
American cases cited.
ACCOUNT IN GENERAL. 247

of appropriation by the debtor, the creditor is entitled
to determine the application of the sums paid.. And
if neither does so by an express act, the law implies an
appropriation of such payments to the items of debt in
the order of their date. 464.

An agent is not liable to account except to Agent lia

-ble to ac-
his principal ; and the case of a charity forms ine a
no exception to the rule.” 465. “peal.

1 Merriman ». Ward, 1 Johns. & H. 376. St. 2 459a-459¢;
Devaynes v. Noble, Tudor’s Lead. Cas. Mere. Law, 1.*
2 Att. Gen. v. Earl of Chesterfield, 18 Beav. 596.

 

* See also United States v. Kirkpatrick, 9 Wheat. 720, 737-8 ;
Crompton v. Pratt, 105 Mass. 255.
248 ADMINISTRATION.

CHAPTER ITI.
OF ADMINISTRATION.

-ndeie? I. Iw cases of any complication or diffi-
diction, culty, the Court of Chancery has, practically
speaking, almost an exclusive jurisdiction in the ad-
ministration of assets and the distribution of the residue,
founded on the notion of a constructive trust, or on
some auxiliary ground, such as the necessity for a dis-
covery, formerly existing, or the consideration that the
aid, if any, afforded at Common Law or in the Eccle-
siastical Court, was not plain, adequate, and complete.’
And by the stat. 20 and 21 Vict. c. 77, s. 23, the ju-
risdiction of the Ecclesiastical Court in the distribution
of residues is abolished, and is not to be exercised by
the Court of Probate. 466.
meee II. The application for assistance is some-
ing by | 4x times made by the executor or administrator
adminis- —_ himself, against the creditors generally, when
he finds the affairs of his testator or intestate
so much involved, that he cannot safely administer the
estate except under the direction of a Court of Equity.
Proceedings for administering the estate, instituted by
executors or administrators, are not encouraged; be-

1 St. 3 584-543.
ADMINISTRATION, 249

cause they may be used unduly to keep creditors out
of their money.’ 467,

III. But the aid of the Court is more, oe

usually sought by ecreditors.? And as a de- ceeding of

: : ‘ i creditors.
cree in Equity is held of equal dignity and
importance with a judgment at Law, a decree on a
proceeding of this sort, being for the benefit of all the
creditors, makes them all creditors by decree, on an
equality with creditors by judgment, so as to exclude,
from the time of such decree, all preference in favor
of the latter... As soon. as the decree to account is
made in proceedings on behalf of all the creditors, the
executor or administrator is entitled to prevent legal
proceedings against him by any of the creditors, ex-
cept under the direction of the Court of Equity by
which the decree was made.* 468.

IV. Assets (that is, property available for jy pivision
the payment of debts of a deceased person) °fsets-
are divided into legal and equitable. Legal assets are
property which creditors may make avail- |...
able in a Court of Law for the payment of of legal
debis, as having devolved upon or been re-
coverable by the executor or administrator, as such,
for that purpose, simply by virtue of his office, even
though the property may be of an equitable nature,
and he has consequently been obliged to resort to a
Court of Equity to vest it in himself. Equitable
assets are property which creditors can only |...
make available in a Court of Equity for pay- of equitable
ment of debts, simply by virtue of an express

1 St. ¢ 544, 545. 2 St. 546. 3 $t.2547. 4 St. 549,
250 ADMINISTRATION.

disposition of the property, which must be carried into
effect by a Court of Equity. Hence it has been: held
that an equity of redemption of an equitable interest
in a sum of money charged on land is legal assets. So
that it is not the legal or equitable nature of the prop-
erty, nor the remedy of the executor, but the remedy
of the creditor, which determines whether the assets
are legal or equitable.’ 469.

- Equitable assets include real property which the
deceased had by will charged with or devised for pay-
ment of his debts, although liable for payment of
them by Act of Parliament.? 470.

ee: V. Courts of Equity follow the same rules

Vv. Adminis- , f
tation of in regard to legal assets which are adopted
by Courts of Law, and give the same pri-
ority to the different classes of creditors which is en-
joyed at Law. And Equity recognizes and enforces
all antecedent liens, claims, and charges in rem, ac-
cording to their priority, whether those charges are of
a legal or an equitable nature, and whether the assets
Aaminis  2¥e legal or equitable.? But equitable assets,
tatiabie With the exception above mentioned, are dis-
er tributed pari passu among all the creditors
without regard to the priority or dignity of the debts;
and, after they are satisfied, among all the legatees or

1 See St. 2 551, 552; 2 Sp. 314, 315; 2 Bl. Com. 244; Burt,
Comp. @ 734; Silk v. Prime, 2 Lead. Cas. Eq., 2d ed., et seg. ; Cook
v. Gregson, 8 Drew. 547 ; Shee v. French, Id. 716; Mutlow v. Mut-
low, 4 D. & J. 589.

2 St. 3 552a. ; 9 St. 8553.

 

* 3 Wm.’s Ex’rs. 1683, et seg., and cases cited.
ADMINISTRATION. 251

distributees. But if the fund is insufficient to pay
all the debts, all the creditors must abate in a yatement
proportion. And so if the fund, after pay- oh9ots’
ment of debts, is insufficient to pay all the “**
legacies, they must all abate in proportion, unless
some priority is specifically given by the testator to
some legacies over others.’ But as between specific
and pecuniary legatees, the loss is to fall wholly on
the latter? And charitable legacies now abate, as
well as legacies of another kind.* 471.

By the Supreme Court of Judicature Act, 43 :ninis-
1875 (38 and 39 Vict. c. 77,8. 10), it is tation of
enacted (in lieu of the 1st sub-section of sec- Solvent

estates and
tion 25 of the principal Act, 36 and 37 Companics
Vict. c. 66), that “in the administration by the Court
of the assets of any person who may die after the
commencement of this Act, and whose estate may
prove to be insufficient for the payment in full of his
debts’ and liabilities, and in the winding up of any
company under the Companies Acts 1862 and 1867,
whose assets may prove to be insufficient for the pay-
ment of its debts and liabilities and the costs of wind-
ing up, the same rules shall prevail and be observed
as to the respective rights of secured and unsecured
creditors, and as to debts and liabilities provable, and
as to the valuation of annuities and future and con-
tingent liabilities respectively, as: may be in force for
the time being under the law of bankruptcy with re-
spect to the estates of persons adjudged bankrupt ; and
all persons who in any such case would be entitled to

1 St. 9554-6; 2 Sp. 314. 2 2 Sp. 343. 3 St. 2 1180.
252 ADMINISTRATION.

prove for and receive dividends out of the estate of
any such deceased person, or out of the assets of any
such company, may come in under the decree or order
for the administration of such estate, and make such
claims against the same as they may respectively be
entitled to by virtue of this Act.” 472.

Where one of several residuary legatees or next
of kin has received his share of the estate of a testator
or intestate, the others cannot call upon him to refund,
because the assets have been wasted, unless they show
that the wasting took place before the share was paid
over.’ 473.

Gaewation Debts actually barred by the Statute of
as Limitations are not included in a trust for

Statute of
agmitarions’ payment of debts. But where a provision is

as regards

debs made, either by will or by deed, for pay-
ment of debts out of real estate, the statutory time will
cease to run, in the former case, from the death of the
testator, in the latter from the date of the deed; be-
cause the creditor, the cestui que trust, is not to be
barred by the neglect of the trustee to do his duty.
The same principle will apply where personal estate
only is assigned in trust for payment of debts. But
where personalty is bequeathed for payment of debts,
it does not prevent the running of the statute; because
the trust for payment of debts, with which every
executor is clothed, has no such effect. Indeed, such
an express trust is inoperative for any purpose.’ 474.

' Peterson v. Péterson, L. R. 3 Eq. 111.
2 2 Sp. 357; Moore v. Petchell, 22 Beav. 172.*

 

* St. Eq. Jur. 1521b; 3 Wm.’s Exr’s, 2028, et seq.
ADMINISTRATION. 253

A Reta so far as the property num- VE. Order ot
ites
ered below as five, six, and seven, may be *minis-_

ey + different
affected by the recent decisions mentioned meaner tee

. . i t
below, assets are now generally applied in 3 Uayent

the payment of debts in the following order; ‘cle
First, the general personal estate is applied, except
under the circumstances presently mentioned. Sec-
ondly, an estate particularly devised simply for the
payment of debts. Thirdly, estates descended. Fourth-
ly, property devised and bequeathed to particular de-
visees and legatees, but charged with the payment of
debts." In Stead v. Hardaker, L. R. 15 Eq. 178, the
V.-C. Malins is reported to have said: “ It appears to
me that the rule that descended estates are liable to
the payment of debts in priority -to the specifically de-
vised estates is a very unreasonable rule.” But in
the opinion of the writer the rule is founded in the
reason of things. For the specific devisee is expressly
an object of the testator’s regard, whereas the heir only
takes by act of Law. Fifthly, general legacies.
Sixthly, lands comprised in a residuary devise. Sev-
enthly, specific legacies and lands specifically devised.’

1 St. 2 577; 2 Sp. 817, 822-4; Coote Mortg., 3d ed. 472-4; 2
Jarm. Wills, 2d ed. 526-7, 585; Phillips v. Parry, 22 Beav. 279;
Wood »v. Ordish, 3 Sm. & G. 125; Scott v. Cumberland, L. R. 18
Eq. 578.*

2 Coote Mortg., 3d ed. 474; Dady 0. Hartridge, 1 Dr. & Sm.
236; Barnwell v. Iremonger, Ta. 242; Rotheram v. Rotheram, 26
Beey. 465; Bethell ». Green, 34 Beays 302; Hensman v. ame

L. R. 2 Eq. 627; Brownson v. Lawrance, L. R. 6 Eg.1; Powell v.
Riley, L. R. 12 Eq. 175.

 

* 4th Kent Comm. 420, 421; Mitchell v. Mitchell; 21 Md. 244.
254 ADMINISTRATION.

In Hensman v. Fryer, L. R. 3 Ch. Ap. 420, Lord
Chelmsford, C. (on appeal), held that a residuary de-
vise remains specific in effect, notwithstanding the 24th
section of the Wills Act, and that a general legatee
and a residuary devisee must contribute pro ratd in
payment of debts, which the property first applicable
is insufficient to satisfy. If this decision of Lord
Chelmsford is right, the properties numbered above as
five, six, and seven, would all be applied ratably.
But in Dugdale v. Dugdale, L. R. 14 Eq. 234, and in
Tomkins v. Colthurst, L. R. 1 Ch. D. 626, the V.-C.
Malins refused to follow this decision (so far as re-
gards legatees), as clearly erroneous; and held that
real estate devised and not charged with debts, is not
bound to contribute with a general legacy to meet the
deficiency of the personal estate for payment of debts."
In Eddels v. Johnson, 1 Gif. 22; Pearmain v. Twiss,
2 Gif. 130; and Clark v. Clark, 4 Gif. 702, the V.-C.
Stuart had previously held that lands specifically de-
vised and lands comprised in a residuary devise are to
be applied ratably in payment of debts. And the
V.-C. Malins, in Gibbins v. Eyden, L. R. 7 Eq. 371,
decided the same way. And in Lancefield v. Iggulden,
L. R. 10 Ch. Ap. 136, reversing the decision of Bacon,
V.-C., 17 Eq. 556, Lord Cairns, L.C., and James,
L.J., decided that specific devisees must contribute
ratably with residuary devisees, and regarded the de-
cision of Lord. Chelmsford as having settled the ques-
tion” Eighthly, personalty and realty, over which

: See also Farquharson v. Floyer, L. R. 3 Ch. D. 109,
? See also Jackson v. Pease, L. R. 19 Eq. 96.
ADMINISTRATION. 255

the person whose estate is to be administered has exer-
cised a general power of appointment.’ 475.

A legacy or annuity given generally is
payable out of a personal estate only. And oslo pri
even when a legacy or annuity is given out wees
of real and personal estate, or where debts oe
are payable out of real as well as out of personal es-
tate, it is the general rule that the personal estate is
first to be applied so far as it will extend. The per-
sonal estate constitutes the primary and natural fund
for payment of debts and legacies, and will first be
applied,’ except in the following cases: 476.

4d. When there are express words,’ or a

oe . ‘ 1. In the
plain intention of the testator to exonerate case of ex.
a ‘ Press words
his personal estate. And to constitute such or plain in-
. . %, . “ ‘ _ ention to
a plain intention, directions and expressions the con-

which do not necessarily imply more than ey

that the real estate shall make good the deficiency, are
not enough ; there must appear upon the whole testa-
mentary disposition, taken together, an intention so
expressed as to convince a judicial mind that it was
meant not merely to charge the real estate, but so to

1 2 Jarm. Wills, 2d ed. 526, 528; Sugd. Pow., 8th ed. 474, 540;
2 Lead. Cas. Eq., 2d ed. 102-4; Trower Dr. & Cr. 295; Fleming
v. Buchanan, 3 D. M. & G. 976.*

2 2 Sp. 334, 818; Tench v. Cheese, 6 D. M. & G. 453; Bright »v.
Larcher (No. 2), 4 D. & J. 608.

3 Young v. Young, 26 Beav. 522.

* Coventry v. Coventry, 2 Dr. & Sm. 470.

 

-* See also note 3 Wm.’s Exrs. (Perkin’s Am. ed.), 1693, ed seq.
256 ADMINISTRATION.

charge it as to exempt the personal estate.’ And (1.)
Tf the real estate is directed to be sold for payment of
debts, and the personal estate is expressly bequeathed
to legatees, then the personal estate will be exonerated
by necessary implication. But neither of these circum-
stances, apart from the other and from circumstances
affording similar implication of intention, is a suffi-
cient indication of an intention to exonerate the per-
sonal estate. For it is most probable that a direction
to sell real estate for the payment of debts, where no
disposition is made of the personal estate, was intended
to be followed only in the event of the personal estate
proving insufficient for the purpose of paying the
debts. And, on the other hand, it is most probable
that a bequest of personal estate, not by way of specific
legacy, where no provision is made for payment of
debts out of the real estate, was made subject to the

1 2 Sp. 336-341, 824; Coote Mortg., 3d ed. 454; 1 Rop. Leg.

by White, 703, 710; 2 Jarm. Wills, 2d ed. 546-8; Plenty v. West,
16 Beav. 180; Jon v. Ashton, 28 Beav. 379.*

 

* See also St. Eq. Jur. 3 566 b, c. In Brant’s Will. 40 Miss. 266,
where testator directed his debts to be paid generally without charg-
ing any particular fund, and then disposed by specific bequest and
specific devise of his whole estate, it was held the realty and per-
sonalty must contribute ratably. Where the personal estate is all
disposed of by will, and a legacy is made a charge on real estate
devised, the personal estate is exonerated as to such legacy. Lar-
kin v. Mann, 53 Barb. N. Y. 267.

But the intent to charge the realty must be shown by mingling
real and personal estate in a residuary clause or in some other way,
and the intent must be clear. Gerken’s Estate, 1 Tucker (N. Y.
Surr.), 49; Okeson’s Appeal, 59 Penn. St. 99.
ADMINISTRATION. 257

payment of debts out of such personal property.? ‘(2.)
Where the testator gives his personal estate as a whole,
and not as a residue, by way of specific legacy to one
who is not executor, and another fund is supplied for
payment of debts, legacies, and funeral and testamen-
tary expenses, the personal estate is exonerated.’ (3.)
Where a testator directs the conversion of his real and
personal estate, and creates a mixed fund out of the
produce, and appropriates that fund for the payment
of debts, etc., the two estates comprised in that fund
are applicable pro ratd. But in such case, if there is
no conversion out and out, the surplus (if any) will
result as real and personal estate. If a portion only
of the personal estate is comprised in the fund, the
residue will be chargeable only when that fund fails.
(4.) So where a devise is made, subject to a condition
of paying off the incumbrances affecting the estate; or
where only the residue of the proceeds of real estate,
after payment of debts, is devised.* And where real
estate is devised to a person, upon condition of his
paying debts and legacies generally, or charged with

1 2 Sp. 340, 341, 818, 823; 2 Wms. on Executors, 6th ed. 1576,
1577.

2 2 Sp. 341; 2 Jarm. Wills, 2d ed. 562; Gilbertson v. Gilbertson,
34 Beav. 354; Powell v. Riley, L. R12 Eq. 175.*

3 Coote Mortg., 3d ed. 470; 2Sp. 818; 2 Jarm. Wills, 2d ed.
529, 531; Simmons v. Rose, 21 Beav. 37; 6 D.M. & G. 411; Tur-
ner L. J., in Tench v. Cheese, 6 D. M. & G. 467; Bright v. Lar-
cher, 3D. & J. 148; Allan v. Gott, L. R. 7 Ch. Ap. 430.

4 2 Sp. 334, 342.

 

* Larkin v. Mann, 51 Barb. 267.
+ 3 Williams, Executors, 1712, et seq.
22
258 ADMINISTRATION.

them generally, or is given to trustees for those pur-
poses, and the personal estate is disposed of by a gen-
eral residuary bequest, these circumstances will not
prevent the personal fund being applied in the first in-
stance in the satisfaction of those demands.’ And if
a testator expressly charges his personal estate with
debts of a particular description, namely, with those
by simple contract, and then bequeaths that fund, it
will not be discharged from debts, etc., generally.’
And, as a general rule, no extrinsic evidence can be
admitted to ascertain the intention to exonerate; so
that the circumstances of the testator, and the amount
of his personal estate and of debts, cannot be taken into
consideration.* 477.

If the personal estate is exonerated from debts and
legacies in favor of A, and he dies before the testator,
by which event the disposition lapses, the executors or
next of kin of the testator who accidentally become
entitled to the fund will take it with its primary and
natural obligation to discharge the debts and legacies.‘
478.

2. Where 2. When the charge or incumbrance is, in
thaseis its own nature, real ; as in the case of a join-
ee ture; or of pecuniary portions to be raised
out of lands by the exécution of a power ; or of pecu-
niary portions to be raised in favor of daughters under
a marriage settlement, out of lands vested in trustees for
the purpose ; or of a devise of lands to a person charged

2 1 Rop. Leg. by White, 695. 2 Th., 706.
* 2 Sp. 337; 1 Rop. Leg. by White, 724. * Th., 744.
ADMINISTRATION. 259

with, or with a direction to pay, particular sums of
money, or to trustees in trust to raise and pay particu-
lar sums, as distinguished from a charge or trust for
satisfaction of debts or legacies generally.! And al-
though there may be also a personal covenant to raise
the jointure, portions, or sums, such covenant will only
be regarded as an additional security, not as the primary
one. If there is no such personal covenant for the
payment of portions, but a covenant to settle lands,
and-to raise a term of years out of the lands for secur-
ing the portions, there, even though there be a bond
to perform the covenant, the portions are not in any
event payable out of the personal estate. A mortgage
debt (except in such cases as are mentioned in the next
two paragraphs), whether the lands in mortgage de-
volve upon the heir-at-law or a general devisee or a
particular devisee, is not considered as in its own nature
real, but is primarily payable out of the general per-
sonal estate of the testator, where it is not made payable
by a devisee. Where the mortgaged estate is devised
cum onere, it is payable by the devisee. But the ex-
pression “ subject to the mortgage,” in the devise of a
mortgaged estate, may sometimes be only descriptive
of the estate, and not expressive of an intent that the
devise is made cum onere.’ 479.

1 1 Rop. Leg. by White, 671; 2 Jarm. Wills, 2d ed. 543, 567-9.

2 2 Sp. 819; 1 Rop. Leg. by White, 731, 732; 11 Jarm. & Byth.
by Sweet, 797, n. (a); Coote Mortg., 3d ed. 350, 452; 2 Jarm.
Wills, 2d ed. 534. On this subject see Jenkinson v. Harcourt,
Kay, 688; Bond v. England, 2 K. & J.44; Townshend v. Mostyn,
26 Beav. 72; Lady Langdale v. Briggs, 8 D. M. & G. 391.
260 ADMINISTRATION.

a eta 3. Where the debt was not contracted by
thedebt was the person who died last seized or entitled,

tracted b
ea Py but by some other person from whom he

pho died took it by descent or devise, or by some

or entitled. other person from whom he purchased it, or
from whom his vendor derived it. Thus, where a
mortgage was created by an ancestor, and the mort-
gaged estate descended upon the heir, there, although
the heir entered into a collateral contract or covenant,
or gave security for payment of the mortgage, yet his
personal estate would not be liable to be charged, in
favor of any person who should derive title by descent
under him to the mortgaged premises, subject to the
mortgage. But it is different if the heir or devisee or
purchaser did anything which raised a new and inde-
pendent contract between him and the mortgagee (un-
less it was simply for the purpose of paying off the
debts or legacies of the original mortagor, as such), or
had in any other way made the debt his own.’ 480.
4Incertain by the stat. 17 and 18 Vict. c. 113, it is
esr’ enacted that, “when any person shall, after
foiand is. the 31st day of December, 1854, die seized
ater Dee. Of or entitled to any estate or interest in any
*h 1894 land or other hereditaments which shall at
the time of his death be charged with the payment of
any sum or sums of money by way of mortgage, and

1 St. ¢ 571-6, 1003; 2 Sp. 334-6, 398, 394, 819, 824; Coote
Mortg., 3d ed. 453, 478, 479, 481; 1 Rop. Leg. by White, 735,
739, 742; 2 Jarm. Wills, 2d ed. 536, 539 ; Swainson v. Swainson,
6 D.M. ‘& G. 648; Townshend ». Moatvii, 26 Beav. 72; Ion v.
Ashton, 28 Beav. 379 ; Bagot v. Bagot, 34 Beav. 134.
ADMINISTRATION. 261

such person shall not, by his will or deed, or other
document, have signified any contrary or other inten-
tion, the heir or devisee to whom such land or heredit-
aments shall descend or be devised, shall not be en-
titled to have the mortgage debt discharged or satisfied
out of the personal estate or any other real estate of
such person, but the land or hereditaments so charged
shall, as between the different persons claiming through
or under the deceased person, be primarily liable to
the payment of all mortgage debts with which the
same shall be charged, every part thereof, according
to its value, bearing a proportionate part of the mort-
gage debts charged on the whole thereof: Provided
always, that nothing herein contained shall affect or
diminish any right of the mortgagee on such lands or
hereditaments to obtain full payment or satisfaction of
his mortgage debt either out of the personal estate of
the person so dying as aforesaid or otherwise: Pro-
vided also, that nothing herein contained shall affect
the rights of any person claiming under or by virtue
of any will, deed, or document already made or to be
made before the 1st January, 1855.” 481.

An equitable mortgage by deposit and memorandum
is within this Act.| And it extends to copyholds.
482.

Leaseholds were held to be not within this Act.’
483.

Various other points connected with the construc-

1 Pembroke v. Friend, 1 Johns. & H. 132.
2 Piper v. Piper, 1 Johns. & H. 91.
8 In re Wormsley’s Estate, L. R. 4 Ch. D. 665.
262 ADMINISTRATION.

tion of this Act have been decided, but they do not
come properly within the scope of a work like the
present. 484.

By the stat. 30 and 31 Vict. c. 69, it is enacted
that, “in the construction of the will of any person
who may die after the 31st day of December, 1867, a
general direction that the debts or that all the debts
of the testator shall be paid out of his personal estate
shall not be deemed ‘to be a declaration of an intention
contrary to or other than the rule established by the
said Act, unless such contrary or other intention shall
be further declared by words expressly or by necessary
implication referring to all or some of the testator’s
debts or debt charged by way of mortgage on any part
of his real estate” (s. 1); and “in the construction of
the said Act and of this Act, the word ‘ mortgage’
shall be deemed to extend to any lien for unpaid pur-
chase-money upon any lands or hereditaments pur-
chased by a testator” (s. 2). 485.

By the stat. 40 and 41 Vict. c. 34, it is enacted that
the stat. 17 and 18 Vict. c. 113, and 30 and 31 Vict.
c. 69 (supra, par. 481, 485), “shall, as to any testator
or intestate dying after the thirty-first December, one
thousand eight hundred and seventy-seven, be held to
extend to a testator or intestate dying seized or pos-
sessed of or entitled to any land or other hereditaments
of whatever tenure which shall at the time of his death
be charged with the payment of any sum or sums of
money by way of mortgage, or any other equitable
charge, including any lien for unpaid purchase-money ;
and the devisee or legatee or heir shall not be entitled
ADMINISTRATION. 263

to have such sum or sums discharged or satisfied out
of any other estate of the testator or intestate unless
(in the case of a testator) he shall within the meaning
of the said Acts have signified a contrary intention;
and such contrary intention shall not be deemed to be
signified by a charge of or direction for payment of
debts upon or out of residuary real and personal estate
or residuary real estate.” 486.

Where assets of a testator, consisting of
personalty which could be identified, are ityotper
settled bond fide upon marriage, they cease ‘aled oa
to be liable to subsequently accruing claims saa
in respect of breaches of covenant entered into by the
testator, but of which the parties to the settlement had
no notice when they executed it.’ 487.

Property specifically bequeathed is not rispitity of
discharged from its liability to the testator’s Prone,
creditors by the circumstance that there has >°aesthet
come to the hands of the executors personal property
of the testator not specifically bequeathed more than
sufficient to pay his debts and funeral and testamentary
expenses, and that the specifically bequeathed property
has been made over by the executor to the specific
legatee; whatever may be the rights of the specific
legatee as regards the executor or residuary legatee.?
488.

VII.- In the order of satisfaction, if the
personal estate of the deceased is not suffi- of toe
cient for all purposes, creditors are preferred

1 Dilkes v, Broadmead, 2 D. F. & J. 566.
2 Davies v. Nicolson, 2 D. & J. 693.
264 ADMINISTRATION.

to legatees; because it is to be presumed that a testator
means to be just, by desiring his debts to be paid,
before he is generous; and the personal estate, as we
have seen, is the natural fund for the payment of
debts. Again, specific legatees are preferred to the
heir, because the heir, instead of being expressly an
object of the testator’s regard, like the specific legatee,
only takes by act of Law. Specific legatees are also
preferred to the devisee of real estate charged with
specialties or with the payment of debts, and to resid-,
uary devisees of real estate. But general pecuniary
legatees are not preferred to residuary devisees of real
estate. Nor are specific devisees of lands, not charged
with specialties or with the payment of debts, preferred
to specific legatees; but upon failure of the general
personal estate, the specific devisees and specific lega-
tees shall each, according to the proportionate value of
the benefits conferred on each, contribute to the pay-
ment of debts. Where a particular portion of the
personal estate is bequeathed, subject to the payment
of debts and legacies, there, as between the legatees,
the residuary personal estate is exonerated, if there is
no gift of the residue.t As between a devisee of a
mortgaged fee simple estate and a specific legatee of
personalty, the devisee shall not have his mortgage
paid by the specific legatee, but shall take the mort-
gaged estate cum onere. A fortiori, a specific legatee
of a mortgaged leasehold shall not have the mortgage
wholly or partly paid off by specific legatees of other

1 St. 2571; 2Sp.343.
ADMINISTRATION. 265

leaseholds.1 Subject to the stat. 17 and 18 Vict. c.
1138 (supra, par. 481), the devisee of mortgaged prem-
ises is preferred to the heir-at-law of descended es-
tates; because the devisee- is evidently an object of
the testator’s bounty; and a fortiori, the devisee of
premises not mortgaged is preferred to the heir-at-law ;
and if unincumbered lands and mortgaged lands are
both specifically devised, but expressly after payment
of all the debts, they are to contribute proportionably
in discharge of the mortgage. Where the equities of
the legatees and devisees are equal, the Court remains
neuter, and suffers the Law to prevail.? 489.

But subject to the stat. 17 and 18 Vict. ce 113
(supra, par. 481), where the personal assets are suffi-
cient to pay all the debts and legacies and other
charges, there the heir-at-law or devisee, who has been
compelled to pay any debt or incumbrance of his
ancestor or testator binding on him, is entitled (unless
there is some other equity which repels the claim) to
have the debt paid out of the personal assets in pref-
erence to the residuary legatees or distributees,* because
such charges are primarily payable out of personal
estate. 490.

And, subject to the same statute, lands devised for
or subject to the payment of debts are also liable to
discharge a mortgage, in favor of the heir or devisee
to whom the mortgaged lands may belong, unless the
mortgaged lands are really devised cum onere.* 491.

1 2 Sp. 838. 2 See St. 3 571; 2 Sp. 832, 839, 882. 3 St. ¢ 571.
* St. 2571; 2 Sp. 822, and see supra, par. 479.
23
266 ADMINISTRATION.

Where money is payable under a voluntary bond,
the assignee for value of an equitable interest in it is
entitled to rank as a specialty creditor against the as-
sets of the obligor, though: the obligee would not be so
entitled.’ 492.

VIII. There are many cases in which
abating oF parties, whose right at Law is confined to
oe one fund, would fail to obtain the satisfac-
tion of their just claims, if left to the course of Law,
but are enabled to obtain full satisfaction thereof by
means of a particular adjustment effected by Courts of
Equity, termed the marshalling of assets. This may
be defined to be such an arrangement of the different.
funds of the common debtor of two or more creditors
as may satisfy every claim, so far as, without injustice,
such assets can be applied in satisfaction thereof, not-
withstanding the claims of particular individuals to
prior satisfaction out of some one or more of those
funds. So that if there are two or more different
kinds of funds of the common debtor of several credi-
tors, and at Law one can have recourse to either of
those funds, while another is confined to one of them,
the former shall either be compelled to seek satisfac-
tion out of that fund to which the latter cannot resort,
so far as it will extend, or the latter shall receive com-
pensation out of that fund, in proportion to the amount
which the former has unnecessarily taken from that

1 Payne v, Mortimer, 4 D. & J. 447.
ADMINISTRATION. 267

which formed the only source of payment for the
latter. 493.

This plan is adopted as against mortgagees Marsballiog
and other creditors of the superior kind, in i fvorof

creditors, or

favor not only of mortgagees and creditors or ofan

of the superior kind, but also of creditors of [icrist ot of
an inferior rank, or of legatees (except re- ° * 2°”?
siduary legatees, where the residue is not exonerated,
and legatees whose legacies are given out of a residue),
or of portionists, or of the heir-at-law, or of a devisee;
and as against simple contract creditors, in favor of
legatees;? and as against a person who becomes a
surety for a mortgagor on the occasion of a first mort-
gage, in favor of a second mortgagee.? Thus, iene
legatees, with the above exceptions, are per- 1 the place

of mort-
mitted to stand in the place of specialty 8825204

specialt;
creditors, against the real assets descended, or and sla ple
of a mortgagee who has exhausted the per- “°°
sonal estate, whether the mortgaged lands have de-
scended to the heir-at-law, or have been devised to a
devisee who is to take subject to the mortgage. And

where a testator bequeaths legacies, and devises real

" See St. 2 558-563; 2 Sp. 827, 828; Aldrich v. Cooper, 2 Lead.
Cas. Eq., 2d ed. 56, et seq. ; Gibson v. Seagrim, 20 Beav. 14.*

? See St. 2 562-6, 570; 2 Sp. 410, 819, 820, 827, 829, 833,

3 South v. Bloxham, 2 Hem. & M. 457.

 

* 3 Wm.’s Exrs. (Perkins Am. ed.), 1718, et seg.; Alston ».
Munford, 1 Brock. 266; Torr’s Estate, 2 Rawle, 250, 252. The
aim of a Court of Equity as it regards the payment of debts is
equality ; that the assets shall be so distributed as to satisfy all the
creditors. Ibid.
268 ADMINISTRATION.

estate in trust for, or subject to, payment of debts, and
the personal estate is exhausted by creditors, the lega-
tees are entitled to come upon the real estate.' And in
consequence of the stat. 3 and 4 Wm. IV, ec. 104,
which makes real estate liable to simple contract debts,
though it was subject to a priority in favor of specialty
debts, legatees are permitted to stand, in regard to land
descended, in the place of simple contract creditors who
have exhausted the personal estate, so as to prevent a
satisfaction of the legacies.’ But residuary legatees,
where the residue is not exonerated, and legatees whose
legacies are given out of a residue, have no such equity ;
for a residue of personal estate implies what remains
after satisfying the charges upon it? And
but not of : :
devisee of the equity of legatees will not generally pre-
real estate ‘ . .
not mort- vail against a devisee of the real estate not
gaged. . 5
mortgaged, whether he is a specific or a re-
siduary devisee; for between persons equally taking
by the bounty of the testator, Equity will not interfere,
unless the testator has clearly indicated some ground
of preference or priority of the one to or over the
other.(a.) 494.
saan Where one party has a charge on freehold
ue between and copyhold estate, and another party a
and copy- charge on the freehold only, the latter is en-
titled to require that the former should be
1 Surtees v. Parkin, 19 Beav. 406; Paterson v. Scott, 1 D. M. &
G. 531.*
2 St. 2.566; 2 Sp. 830. 3 2 Sp. 820.
* St. ¢565; 2 Sp. 820, 829, 830-2.

 

(a) But see supra, par. 475.
* See also cases cited in note 3, Wm.’s Exrs., 1718.
ADMINISTRATION. 269

satisfied out of the copyhold estate, so far as it will
extend.’ 495.
The same marshalling of assets takes’ place
: Marshalling
as between legacies charged on land and lega- 4s between

. ‘4 i legacies
cies not so charged.” But since the statute 9 charged oa
Geo. IT, c. 36, legacies or bequests to chari- others not

. so charged.
table uses, payable out of real estate or datehe
minis-
charged on real estate, or to arise from the (tion tn,
sale of real estate, are, with some exceptions, charitable

utterly void ;° and Equity has in some mod- ss

ern cases refused to marshal the assets in favor of
charitable bequests, when given, either directly or by
way of trust, out of a mixed fund of real and personal
estate, or of personalty connected with realty and pure
personalty. Instead of directing the debts and the
other legacies to be paid out of the real estate or im-
pure personalty, and reserving the pure personalty to
fulfil the charitable bequests, the charity legacies have
been considered as intended to be charged on the pure
personal estate and the proceeds of real estate, or
the impure personalty proportionately, like other lege
cies, as if no legal objection existed to applying the
proceeds of the real estate to the charitable be-
quests; and as charity legacies cannot legally be
charged on the proceeds of real estate or the impure
personalty, they have been held to fail as to that pro-
portion which would have come to them out of the

1 Tidd v. Lister, 10 Hare, 157; 3 D. M. & G. 857.

2 St. 2 566.

8 St. 2 569; and see Smith’s Compendium of the Law of Prop-
erty, 5th ed., par. 1402-5.
270 ADMINISTRATION.

proceeds of the real estate or the impure personalty.'
In this instance not only has the principle of favor
to charities been discarded, but the Courts have (very
improperly, as the writer humbly submits) acted upon
a diametrically opposite principle. A testator has the
power of directing the charity legacies to be paid out
of the pure personalty, and the debts and private lega-
cies out of the mixed pers6nalty or realty? And
where a testator expressly directs charity legacies to be
paid exclusively out of his pure personalty, and the
personalty savoring of realty is sufficient for the pay-
ment of legacies to individuals, and though the will
does not throw the legacies to individuals upon the
personalty savoring of realty, yet it does not purport
to make those legacies payable at all out of the pure
personalty, but gives them without reference to any
particular fund, and the pure personalty is not suf-
ficient or only sufficient for the payment of the charity
legacies; the legacies to individuals ought to be paid
out of the personalty savoring of realty, so as to leave
the pure personalty for the payment of the charity
legacies. But even in the absence of such an express

} See St. 2 569, 1180; 2 Sp. 233, 235; Miles ». Harrison, L. R.
9 Ch. Ap. 316,

* See Lord Langdale’s judgment in the Philanthropic Society ».
Kemp, 4 Beay. 581; Robinson v. Geldard, 3 Mac. & G. 735; and
see remarks of V.-C. Stuart in Jauncey v. Att.-Gen., 3 Gif. 319,

320; Wills v. Bourne, L. R. 16 Eq. 487; Miles v. Harrison, L. R.
9 Ch. Ap. 316.*

5 Robinson v. Geldard, 3 Mac. & G. 735, 747; Beaumont ».
Oliveira, L. R. 6 Eq. 5384; 4 Ch. Ap. 309; Miles v. Harrison, L.
R. 9 Ch. Ap. 316.

 

* 3 Wm’s Ex’rs, 1720, and cases cited. ©
ADMINISTRATION. 271

adjustment the writer conceives that the Courts ought,
in favor of charities, to have imputed to testators an
intention that the charity legacies should be paid out
of that fund alone out of which they lawfully might
be paid. 496.

Where a testator directs charitable legacies to be
paid out of pure personalty in precedence of other
legacies, but is silent ds to the fund for payment of
debts, there, though the pure personalty be insufficient
to pay all the charity legacies, yet it has been held
(improperly, as the writer submits) that the debts and
funeral and testamentary expenses and the costs are
payable, in the first instance, out of the pure person-
alty and the mixed personalty ratably, according to
their relative values... 497.

Marshalling of assets takes place as be- yp,,cnaning
tween simple contract creditors and a vendor 3 Pircen
of real estate, in respect of his lien for ‘his ts depts
unpaid purchase-money.? And as against “Ss '°™
an heir, taking an estate purchased, legatees are en-
titled to have the assets marshalled, so as to give them
the benefit of the vendor’s lien.’ And it has been held
by Sir J. Romilly, M.R., that this doctrine applies as
against a devisee taking the purchased estate.“ But
the doctrine contained in this paragraph must be con-
sidered to be subject to the operation of the stat. 17

1 Tempest v. Tempest, 7 D. M. & G. 470.

2 St. 3 5644. 3 2 Sp. 833.

4 Birds v. Askey (No. 2), 24 Beav. 618; Lord Lilford v. Powys
Keck, L. R. 1 Eq. 347; but see 2 Sp. 833; Wythe v. Henniker, 2
My. & K. 635. --
272 ADMINISTRATION,

and 18 Vict. c. 113, as explained and extended by the
stat. 30 and 31 Vict. c. 69, and 40 and 41 Vict. c. 34.

498,
eset On analogous grounds, if a specific legacy
or exonera- has been pledged or incumbered with mort-
specific gages Or other charges by the testator, the
specific legatee is entitled to have his legacy
redeemed or exonerated; and if the executor fails to
perform that duty, the specific legatee is entitled to
compensation out of the general assets. Indeed the
same principles apply to specific legatees as to devisees,
in respect to the redemption of the subject-matter out
of the general assets.” 499.
Pesiectlan Again, in order to preserve a widow’s
ora wie’’s paraphernalia, which, with the exception of
a necessary apparel, is subject to debts, Equity
will oblige creditors who are entitled to proceed against
real assets or funds, to resort to such assets or funds,
or will decree her compensation out of the same.’ 500.
Tx heck IX. With regard to the assets of foreigners,

coca ™ it is to be observed, that in general where a

county by domestic executor or administrator collects
simine assets in a foreign country, without any let-
eon ters of administration taken out or any actual
administration accounted for in such foreign country,
and brings them home, they will be treated as personal
assets to be administered here under the domestic ad-

ministration.* 501.

1 See supra, par. 481-6. 2 St. 3 566a; 2 Sp. 774,
5 St. 2 568; 2 Sp. 821, 829. * St. 3 583.
=
ADMINISTRATION. 273

If property is received by a foreign ex- dias
ecutor or administrator abroad, and after- oe
wards remitted here, an executor or adminis- ¢x*<t'0r oF

administra-
trator appointed here could not assert a claim "274
to it here, either against a person in whose ***
hands it happened to be, or against the foreign execu-
tor or administrator. The only mode of reaching it,
if necessary for the purpose of due administration here,
would be to require it to be transferred or distributed
after the claims against the foreign executor or admin-
istrator had been ascertained and settled abroad.’ 502.

In cases of intestacy, the law of the domicile of the
deceased determines the fund out of which debts shall
be paid ; and in cases of testacy, the intention of the
testator.’ 503.

The priorities of creditors are regulated by the
domicile of the testator, although the personal assets
may be situate and administered in another country.’
504.

' St. @ 584. 2 St. 3 587.
3 Wilson v. Lady Dunsany, 18 Beav. 293.*

 

* Where the intestate was at the time of his decease per-
manently domiciled in a foreign country, his personal estate, after
the payment of debts, will be distributed according to the law of
the domicile at the time of his decease. Story, Confl. Laws, 3 481-
482a, 491a, 514; Parsons v. Lyman, 20 N. Y. 103. The fact
whether a deceased person died intestate or not must be determined
by the law of the place where he was domiciled at the time of
his death. Moultriev. Hunt, 23 N.Y. 394. See Redf. Wills, 277.
274 MORTGAGES OF REALTY.

CHAPTER ITI.
OF MORTGAGES, PLEDGES, AND LIENS.

SECTION I.

OF LEGAL MORTGAGES OF REAL PROPERTY.

I, GENERALLY every description of property and
every kind of interest in it, which is capa-
maybe ble of absolute sale, may be the subject
mortgaged. e ° .
of a legal mortgage or its equivalent in
Equity.’ 505.
oe II. It may be considered as an almost
amounts to yniversal rule, that wherever a conveyance

a mortgage,

and what to ‘ . sO ‘
ameehase, OF assignment of an estate is originally in-

winnaet tended as a security for money, whether

sical this intention appears on the deed itself, or
by any other instrument, or even by parol evidence,
and whether directly or indirectly, it will ever after
be considered in Equity as a mortgage, and therefore

12 Sp. 614.*

 

* Jones on Mortgages, 3136. Anda mortgage by a railroad
company specifically covering after-acquired property is binding
in Equity upon real estate and personal property afterwards pur-
chased for the use of the road. This is the settled law of the
Federal Courts and generally of the State Courts, Id. 3 152, and

cases there cited. oe
MORTGAGES OF REALTY. 275

redeemable on the usual terms, though at the time of
the loan or as part of the same transaction, there may
be an express agreement between the parties that it
shall not be redeemable, or that the right of redemp-
tion shall be confined to a particular time or to a par-
ticular person or description of persons; for such an
agreement will be void.' - But there may be an ab-
solute bond fide sale and conveyance, with a collateral
agreement for repurchase and reconveyance on re-
payment of the purchase-money, and such collateral
agreement may either be introduced into the agree-
ment for sale at the time, or may be made at a subse-
quent period? 506.

If the money paid by the grantee would bea grossly
inadequate price for the absolute purchase of the
estate; if be was not let into immediate possession of
the estate; if he accounted for the rents to the grantor,
and only retained an amount equivalent to interest;
or if the expense of preparing the deed of conveyance
was borne by the grantor; each of these circumstances
has been considered as evidence, showing, with more
or less cogency, that the conveyance was intended
merely by way of security.’ 507.

A conveyance will not be deemed a mortgage or
held to be a security only, though it be for an under-
value, if it is not so gross as to show that necessity or

1 St. 21018; 2 Sp. 618-623.*

2 2 Sp. 619, 621; Alderson v. White, 2D. & J. 97.
3 2 Sp. 620, 622.

 

* 1 Jones Mortg. 2 264. + Klinck v. Price, 4 West Va. 4.
{ St. Eg. Jur. 1018 b, c. By, das é
276 MORTGAGES OF REALTY.

pressure amounting to fraud could alone have induced
the person to enter into such a contract, and though
the purchaser afterwards declare that he will take the
money given as the consideration at any time, with
damages for it, or the like; for if it is not a mortgage
in principio, it shall not be so by parol agreement
afterwards.’ 508.

Where land is conveyed on trust, in case a sum and
interest should not be paid by a day named, to sell,
and after payment of principal, interest, and costs, to
pay over the surplus and reconvey the unsold part of
the estate; and the grantee covenants not to sell with-
out giving six months’ notice ; and the grantor cove-
nants to pay the debt and interest, but there is no
proviso for redemption : this is a mere mortgage, and
the grantor is entitled to six months’ time to redeem.?
509.

Where the transaction is clearly one of purchase
with a right of, repurchase, the time limited ought pre-
cisely to be observed ; and there is no principle on which
the Court can relieve, if it is not so observed? 510.

In case the transaction is one of repurchase, and
not of redemption, if the purchaser dies seized, and
then the right of repurchase is exercised, the money
will go to the real representatives, and not to the per-
sonal representatives, as it would in the case of a mort-
gage.’ 511.

1 2 Sp. 622, 623. 2 Bell v. Carter, 17 Beav. 11.*

5 2 Sp. 623. 4 2 Sp. 624.

 

* See also Taylor v, Cornelius, 60 Pa. St.
MORTGAGES OF REALTY. 277

If a transaction is to be considered in the

light of a mortgage as to one party, it must mere
as regards the other... 512,
III. 1. So long as the mortgagor con- yy) yor.

tinues in possession, the mortgagee’s estate is tnt
not absolute, even at Law. For, by stat.15 Tixhts, and
and 16 Vict. c. 76, ss. 219, 220, if an eject-

ment is brought by the mortgagee, provided },M°ue™
no suit is pending in any Court of Equity

for redemption or foreclosure, the payment of prin-
cipal, interest, and costs will, except in certain cases,
be deemed a satisfaction of the mortgage, and the
Court may compel the mortgagee to reconvey the
estate. But when the mortgagor has ceased to be in
possession, and there has been a default in the pay-
ment of the money at the stipulated time, the estate

of the mortgagee becomes absolute at Law. Yet this
1 2 Sp. 623.

 

(a) On the subject of powers of mortgagees, see stat. 23 and 24
Vict. c. 145, Part II.

* The decisions of the Supreme Conrt of the United States, and
the Circuit and District Courts, are uniform in admitting parol
evidence to show that an absolute conveyance is in fact a mort-
gage. In Russell v. Southard, 12 How. 139, the Supreme Court
declare that when it is alleged and proved that a loan was really
intended, and the grantee sets up the loan as a payment of pur-
chase-money and the conveyance as a sale, both fraud and a vice
in the consideration are sufficiently averred and proved to require
a Court of Equity to hold the transaction to be a mortgage. Jones
Mortg. % 285, and see also Federal decisions referred to @ 285
note 4, id. See also 2 264. As to what constitutes a mortgage, see
earlier English decisions in note 2 Coke upon Littleton (205a),
Am. ed.
278 MORTGAGES OF REALTY.
f

estate is in Equity treated as a mere security for the
principal and interest and costs properly incurred in
relation to the mortgage, and follows the nature of the
debt. And, although, where the mortgage is in fee,
the legal estate descends to the heir of the mortgagee,
yet in Equity it is deemed a chattel interest and per-
sonal estate, and belongs to the personal representa-
tives as assets.’ 513.
2. Mortea- 2. Asto the mortgagee’s rights: he is en-
gees.ueh's. titled to enter into possession of the lands,
Teasesrents” ond to take the rents and profits, unless there
is some agreement to the contrary ; and if the security
is insufficient, he may fell timber and sell it towards
liquidation of his debt, and may open mines; but,
with this exception, he may not commit waste. He may
grant leases, subject to the equity of redemption, and
avoid any leases that have been made by the mort-
gagor subsequently to his mortgage. He must, how-
ever, account for the rents he receives, or, but for his
wilful default, might have received, and pay an occu-
pation rent for such part as he may keep in his own
possession.” 514.

If there are two independent tenements, the mort-

1 Coote Mortg., 3d ed. 539; 2 Sp. 296.*

> St. 2 1016, 1016 b; 2 Sp. 642, 645, 646, 648; Coote Mortg.,
3d ed. 332, 343, 344; Millet v. Davey, 31 Beav. 470; Tudor’s
Lead. Cas. Eq., 3d ed. 975; Seton’s Decrees, 8d ed. 382; Parkin-
son v. Hanbury, L. R. 2 H. L. 1.4

 

* Jones Mortg. 3 699, 700.

+ Jones Mortg. 3 699, 1123, See also Hubbard », Shaw, 12
Allen, 120.
MORTGAGES OF REALTY. 279

gagee may take possession of one of them only, so as
to become liable to account for default as to that alone.
And so if part only of the property (as the land with-
out the shooting or timber) is on lease, the mortgagee
may, by taking the rent, make himself accountable for
that alone’ 514a.

Where persons, who, though in fact, mortgagees,
enter into possession of the rents and profits in another
character (e. g., as purchasers), they are not answer-
able for what, without wilful default, they might have
received.” 515.

A mortgagee is not allowed to obtain any __.
advantage out of the security beyond his mortgages'e

es Je . advantage.
principal and interest. 516.

A mortgagee cannot, in the first instance, gyiversion

stipulate, that if the interest be not paid at orp
the time, it shall be converted into principal.* ?*"
To convert interest into principal, the interest must
first become due, and then there must be an agree-
ment in writing signed, to make it principal, at least
so as to affect the estate; and the interest cannot even
then be turned into principal to the prejudice of sub-
sequent incumbrances of which the mortgagee has no-
tice at the time of the agreement.‘ 517.

A stipulation that the mortgagee shall re-
ceive interest at £4 per cent. if regularly saereaton
paid, but £5 per cent. if default be made, is ceaulen
good, if £5 per cent. is reserved by the deed. pen

' Simmins v. Shirley, L. R. 6 Ch. D. 173.

? Parkinson v. Hanbury, L.R.2H.L.1. _
9 2 Sp. 628. 4 2 Sp. 656.
280 MORTGAGES OF REALTY.

But if £4 per cent. only is reserved, a stipulation that
£5 per cent. shall be paid, if the interest be not regu-
larly paid, is in the nature of a penalty, against which
the Court will relieve.’(a) 518.

Leases made by the mortgagor to the

the mortga- mortgagee at a rent, are looked upon with
os great suspicion, as likely to have originated
in the mortgagee having taken advantage of the ne-
cessities of the mortgagor to obtain a lease upon terms
upon which the property would not have been let ex-
cept for those necessities.? 519.
What the The mortgagee in possession has a right
may adito to add to his debt any sums he may be com-
hisdevt. pelled to pay for arrears of rent, or for main-
taining the title to the estate, or for rebuilding the
premises, or for necessary repairs, or the expenses of
renewing a renewable leasehold, with interest from the
time the sums were advanced. But he cannot, by con-
tract or otherwise, entitle himself to make any charge
for management.’ 520.

A mortgagee in a suit for redemption or foreclosure
is entitled to his general costs of suit, unless he has
forfeited them by some misconduct.* It would be un-
safe to deduce any other proposition from this case. 521.

' 2 Sp. 631.* 2 2 Sp. 632. 3 2 Sp. 649, 650, 653.
Cotterell v. Stratton, L. R. 8 Ch. Ap. 295.

 

(a) As to the validity of an agreement for making a larger
amount of principal payable in default of punctual payment, see
Thompson v. Hudson, L. R. 2 Eq. 612; 2 Ch. Ap. 255.

* But whenever the rents and profits for a year exceed the ar-
rears of interest, the balance should go towards the principal.
See Van Vronker v. Eastman, 7 Mete. 157.
MORTGAGES OF REALTY. 281

The mortgagee is not allowed to make ,,
owance

any charge as a receiver, if he himself hag ‘forreceiver.
personally received the rents, even though it may have,
been agreed that he should be paid for his trouble in
receiving them, and though a receiver might have been
employed at the expense of the mortgagor. And
before the stat. 23 and 24 Vict. c. 145, and indepen-
dently of any express provision, it was only where the
owner himself, in the ordinary course of management,
would have had to employ one, that the mortgagee
was entitled to employ a bailiff or receiver, unless with
the sanction of the mortgagor. 522.

A mortgagee of a West India estate may
stipulate that the consignments shall be made Weet alia,
tohim. And, if out of possession, he may ~ a
take a certain reward for the management of the estate,
provided he do not make that employment a condition.
But when he takes possession, he is not at liberty to
charge the mortgagor, whom he has ousted, for the
trouble he takes on his own account; and he cannot
charge or stipulate for commission on consignments,
insurance, and the like, but stands in the position of
the mortgagee in possession of an English estate.? 523.

As a mortgagee is not allowed any advan- yorteage of
tage beyond securing his principal and inter- **”°""°™
est, where an advowson is mortgaged, and the living
becomes vacant prior to the foreclosure, the mort-
gagee is compellable in Equity to present the nominee

1 2 Sp. 807.* 2 2 Sp. 630.

 

* Jones Mortg. 2 1182.
24 :
282 MORTGAGES OF REALTY.

of the mortgagor; even although nothing but the ad-
vowson is mortgaged, and the deed contains a covenant
that on any avoidance the mortgagee shall present.
But he may pray a sale of the advowson.' 524.
Pesnp- The mortgagee is at liberty to stipulate
a for the option of pre-emption, in case the
mortgagor should determine to sell.’ 525.

; A mortgagee is not bound to produce his
oflbata by & mortgage deed, or indeed any of the deeds
amortgagee. . . .

in his possession, to the mortgagor or any
person claiming under him, until payment of the prin-
cipal and interest due and his costs, though the appli-
cation be made bond fide, only to obtain information
with a view to paying off the mortgage.* 526.
Right of As an incident to the right of the mort-
eee gagee, he is at liberty to devise the legal
Property. —_ estate in the mortgaged property to trustees,
if he thinks fit, instead of allowing it to descend to his
heir-at-law ; and the mortgagor must bear the costs of
obtaining a reconveyance, although they may have
been increased by such devise. 527.
ne If a mortgagee in possession turns out or
eieceing,°" refuses to accept a responsible tenant, he is
‘nant. liable for any loss occasioned thereby.» 528.
Both at Law and in Equity, in the absence
of particular circumstances, statutes, judg-
ments, and recognizances, all rank according to their
dates. And so in Equity do equitable charges of
every kind, where the equities are equal in all other

Priority.

128p.629. ?2S8p.631. %2Sp.655. * 2S8p. 669.
> 2 Sp. 806. ® 2 Sp. 727; Coote Mortg., 3d ed. 410.
MORTGAGES OF REALTY. 283

respects than that of priority of time. And where
money is lent on an equitable mortgage, without no-
tice of a prior equitable agreement affecting the same
property, the lender gains no priority over the party
claiming under the prior equitable agreement, by get-
ting in the legal estate, at least after he has notice of
the circumstances.? But if a third incumbrancer, by
mortgage, without notice of a second incumbrance at
the time of lending his money, purchases the first legal
mortgage, judgment, statute, or recognizance, even
after notice of the second mortgage, so as to acquire
the legal title, and “holds both securities in his own
right, Equity will tack both incumbrances
together in his favor; so that the second
mortgagee will not be permitted to redeem the first,
without redeeming the third also; on the principle,
that where the equities are equal, the Law shall pre-
vail. But if a puisne creditor, by judgment, statute,
or recognizance, buys in a prior mortgage, he will not
be allowed to tack his judgment to such mortgage, so
as to cut out or postpone a mesne mortgage; because
he did not originally advance his money on the imme-
diate credit of the land, and by his judgment, he did
not acquire any right in‘the land, but before the stat.
1 and 2 Vict. c. 110, only a lien on the land, which

1 2 Sp. 727-732; Shropshire Union Railways, etc., Co. v. The
Queen, L. R. 7 H. L. 496; Coote Mortg., 3d ed. 410; remarks of
V.-C. Kindersley in Rice v. Rice, 2 Drewry, 78; Cory v. Eyre, 1
D. J. & S. 149.*

2 Mumford v. Stohwasser, L. R. 18 Eq. 556.

Tacking.

 

* Jones Morig. ¢ 200.
284 MORTGAGES OF REALTY.

might or might not be enforced on it;' although now,
under the 13th section of that Act, a judgment will
operate as a charge on real estate, except as regards
purchasers, mortgagees, or creditors, who became such
before the time for the commencement of the Act, and
except so far as the stat. 23 and 24 Vict. c. 38, s. 1,
and 27 and 28 Vict. c. 112, affect the case. 529.

Upon the principle, that, where the equities are
equal, the Law shall prevail, if a first mortgagee, who
has the legal estate, or the better right to call for it, lends
to the mortgagor a further sum on another mortgage,
or ona statute or judgment, or even if he lendsa
further sum on note, and it is distinctly agreed at the
time to be on the security of the mortgaged property,
he is entitled to retain till both sums are paid, as
against a mesne mortgage, of which he had no notice
at the time of the further advance.* Indeed, it may

1 See St. @ 412-416, 418, 421; 2 Sp. 734, 735, 737, 740; Coote
Mortg., 3d ed. 209, 210, 383, 385, 389, 403, 407, 408; Spencer ».
Pearson, 24 Beay. 266; but see 2 Sp. 722, 723.*

? St. ¢@ 417, and note; 2 Sp. 721, 735, 789; Coote Mortg., 3d
ed. 409, 410; Tassell v. Smith, 2 D. & J. 713.+

 

* The English doctrine of tacking never gained any general
recognition in this country, where the Registry Acts are held to be
not only constructive notice but in effect declare the priority to be
fixed by the registration. Jones Mortg. 2 569, 1082. And in
England tacking was abolished by the Vendors and Purchasers
Act in 1874.

¢ The prevailing doctrine in this country is that a mortgagor
may always redeem by paying the specific debt secured by the
mortgage, together with such prior liens as the mortgagee may

have been compelled to pay for the protection of the mortgage.
Jones Mortg. 2 1083.
MORTGAGES OF REALTY. 285

be stated more generally, that if a mortgagee has the
legal estate, and makes a further advance, without
notice of any claim adverse to his title, he is entitled
to tack the further advance to the original mortgage as
against any such adverse claim.’ But where a first mort-
gage extends to future advances, further advances made
by the first mortgagee, after notice of the second mort-
gage, have no priority over the latter, even though the
second mortgagee had notice of the nature of the first
mortgage.” Andif a transferee of a first mortgage ad-
vances a further sum, he cannot tack it as against an
equitable mortgage subsequent to the original first
mortgage, of which equitable mortgage the original
first mortgagee had notice, though the transferee had
no notice of it.2 580.

A statute or judgment creditor who is the first in-
cumbrancer, cannot, by buying a subsequent mort-
gage, tack it to his statute or judgment, because he
did not advance his money on the immediate credit of
the land.* And a prior mortgagee, having a bond
debt (which per se is not a charge on land), whether
prior or subsequent to his mortgage, cannot tack it

’ Young v. Young, L. R. 3 Eq. 801.

2 Rolt «. Hopkinson, 25 Beay. 461; 3D. & J.177; 9 H. L.
Cas. 514; Menzies v. Lightfoot, L. R. 11 Eq, 459.*

3 Pease v. Jackson, L. R. 3 Ch. Ap. 576. See Baker v. Gray

L. B. 1 Ch. D. 491.
4 2 Sp. 740.

 

* In this country mortgages made in good faith for the purpose
of securing future debts have generally been sustained, both in
the early and recent cases. See Jones Mortg. 2 365. And 3 368,
et aéq.. as to effect after notice of subsequent liens.
286 MORTGAGES OF REALTY.

against any intervening incumbrancer of a superior
rank between his bond and mortgage, or against other
creditors, or even against the mortgagor himself, or a
purchaser of the equity of redemption, but only (ta
avoid circuity of action) against the heir or beneficial
devisee, if in the bond the heirs were expressly bound.’
And as copyholds, prior to the stat. 1 and 2 Vict. c.
110, were not liable at Law to an extent, a judgment
debt cannot be tacked to a mortgage of copyhold
land? 531.

By the stat. 37 and 38 Vict. c. 78, s. 7, “after the
commencement of this Act, no priority or protection
shall be given or allowed to any estate, right, or in-
terest in land by reason of such estate, right, or interest
being protected by or tacked to any legal or other
estate or interest in such land; and full effect shall be
given in every Court to this provision, although the
person claiming such priority or protection as afore-
said shall claim as a purchaser for valuable considera-
tion and without notice: Provided always, that this
section shall not take away from any estate, right,
title, or interest any priority or protection which but
for this section would have been given or allowed
thereto as against any estate or interest existing before
the commencement of this Act.” Butthis was repealed
by the stat. 38 and 39 Vict. c. 87, as from the date
of operation, “ except as to anything duly done there-
under before the commencement of this Act.” 532.

‘ St. 418; 2 Sp. 723-5, 735; Coote Mortg,, 3d ed. 393.
2 Coote Mortg., 3d ed. 389.
MORTGAGES OF REALTY. 287

When a puisne mortgagee has bought in a prior in-
cumbrance, but the legal estate is vested in a trustee,
or the puisne mortgagee has not obtained the legal
title, or he takes in autre droit, the incumbrances are
paid in the order of their priority in point of time, ac-
cording to the maxim, Qui prior est tempore, potior est
in jure, and the principle that he who has the better
right to call for the legal title, or for its protection,
shall prevail. 533.

Where a legal mortgage is executed, and is regis-
tered (in Ireland), and the mortgagor assigns an ap-
parently satisfactory reason for not handing over or
producing the title-deeds to the mortgagee, the legal
mortgage will not be postponed to a prior equitable
unregistered mortgage, of which the legal mortgagee
had no knowledge or notice.” 534.

Where a first mortgagee voluntarily, dis- postpone
tinctly, and unjustifiably, through fraud or Merrefa.
gross negligence, allows the mortgagor to %8°*
retain the title-deeds, or allows the mortgagor to get
possession of them, he will be postponed to a subse-
quent mortgagee or purchaser without notice of a prior
mortgage. But the onus of proving such fraud or
negligence is on the person seeking to postpone the
other.’ So if he conceals his mortgage from a person

1 St. 3 419; 2 Sp. 745.

? Agra Bank v. Barry, L. R. 7 H. L. 135.

5 St. 2 393, and see 41010; 2 Sp. 766, 767; Finch v. Shaw, 19
Beay. 500; s. c., Colyer v. Finch, 5 H. L. Cas. 905; Carter v.
Carter, 3 K. & J. 617, 646-8; Espin v.’ Pemberton, 4 Drew. 333;
288 MORTGAGES OF REALTY.

who, as he knows, is about to lend money to the mort-
gagor, he will be postponed to that person.’ A second
incumbrancer upon an equitable reversionary interest
in stock, who has given notice of his incumbrance to
the trustees of the property, whethér he has inquired
of them as to the state of the title or not, will be pre-
ferred to a prior incumbrancer, who has omitted to
give notice of his incumbrance to the trustees.” And
if a prior incumbrancer on real estate devised in trust
for sale, omits to give notice to the trustee, before no-
tice is given of a subsequent incumbrance, he will be
postponed to the subsequent incumbrancer.* But a
mortgagee of an equitable estate in land not directed
to be sold has no occasion to give notice to the trustees,
either to complete his title as against his mortgagor, or
to secure to himself his priority against subsequent in-
cumbrancers.‘ A declaration of trust of an outstand-
ing term, with a delivery of the deeds creating and
continuing the term, has been held to give a subse-
quent incumbrancer a better equity than a mere decla-

Dowle v. Saunders, 2 Hem. & M. 242; Layard v. Maud, L. R. 4
Eg. 397; Briggs v. Jones, L. R. 10 Eq. 92.*

1 St. 2 890; 2 Sp. 732, 766; Wilson v. Wilson, L. R. 14 Eq. 32.

2 2 Sp. 764.

3 Lee v. Howlett, 2K. & J. 531; Consolidated Investment and
Insurance Company v. Riley, 1 Gif. 371.

* Rooper v. Harrison, 2 K. & J. 86.

 

* In America the doctrine of a mortgage by deposit of title-
deeds has been adopted to a very limited extent only. It is not
compatible with the registry system, and may be considered as
generally rejected. Jones Mortg. 3 185, 186.
MORTGAGES OF REALTY. 289°

ration of trust taken by a prior incumbrancer.! And
if the first incumbrancer has a declaration of trust only
by the borrower, and none by the trustee, and the sec-
ond incumbrancer has a formal mortgage of the equity
of redemption, and the trustee is a party to that deed,
and declares himself to be a trustee for the second in-
cumbrancer, the second will have a better equity to
call for the legal estate than the first? 535.

Indepegdently of the stat. 37 and 38 Vict. c. 62, a
charge created by an infant (whether representing him-
self to be an adult or otherwise) will be postponed to
a subsequent mortgage executed by him when of full
age 536.

III. As tothe remedies of the mortgagee to sy yortga-
secure the discharge of the mortgage, a fore- ees Teme
closure isin common cases deemed the ap- yore.
propriate and exclusive remedy.‘ 537. ae

‘An intermediate mortgagee is entitled to a fore-
closure against the mortgagor and the subsequent
mortgagees.° A person entitled to a part only of the
mortgage-money cannot foreclose a portion of the
estate. Proceedings for foreclosure may be taken,
notwithstanding a decree for redemption; for the
mortgagor may make default." Where a decree of
foreclosure is made against an infant heir or devisee
of the mortgagor, the infant has a year and a day to
show cause against the decree on his coming of age;

1 St. @ 421», and note; 2 Sp. 729. . *2Sp. 729.
* Tnman v. Inman, L. R. 15 Eq. 260. * St. 2 1026.
5 2 Sp. 674. 5 2 Sp. 674. 7 2 Sp. 675.

25
290 MORTGAGES OF REALTY.

but he can only do this by showing error in the decree,
or falsifying the accounts for fraud or error.’ 538.
A foreclosure suit cannot be brought but within
twenty years after the right to bring such suit first
accrued, or within twenty years after the last payment
of any part of the principal money or interest.’ 539.
By the stat. 15 and 16 Vict. c. 86, s. 48,
on a foreclosure suit being instituted, the
Court may decree a sale. Before that Act, where there
was no power of sale inserted in the mortgage deed,
Courts of Equity refused to decree a sale against the
will of the mortgagor, except in these cases: (1.)
Where the estate was insufficient to pay the incum-
brances. (2.) Where the mortgagor was dead, and
there was a deficiency of personal assets. (3.) Where
the mortgage was of a dry reversion. (4.) Where the
mortgagor died, and the estate descended to an infant.
(5.) Where the mortgage was an advowson. (6.)
Where the mortgagor became bankrupt, and the mort-
gagee prayed asale. (7.) Where the mortgagor was
dead, and the mortgagee, by his bill brought against
the executor or administrator and the heir, prayed for

Sale.

1 2 Sp. 680, 681.

2 See stat. 3 and 4 Will. IV, c. 27, ss. 24, 28, and stat. 7 Will.
IV, and 1 Vict. c. 28; Fisher Mortg. 153, 154; Sugd. Stat., 2d ed.
94; Coote Mortg., 3d ed. 449.*

 

* Payment is presumed from lapse of time, twenty years or
more, or whatever may be the local statutory period of limitation.
No presumption of’ payment, however, can arise from lapse of time
when the mortgagee or his assignee is in possession of the land.
Probst v. Brock, 10 Wall. 519. See also Jones on Mortg. 3 915.
MORTGAGES OF REALTY. 291

a sale of the mortgaged estate, alleging it to be a scanty
security, and for the payment of any deficiency out of
the general estate of the mortgagor. (8.) Where the
land in mortgage was subject to a sale by the local Law,
as in Ireland." The ground of the distinction, as it
respects the first seven of these cases, would appear to
be this: that from the nature of the property, it would
not be worth while to redeem it, or from the circum-
stances of the mortgagor, he or his representatives were
unable to redeem it. 540.

Though a power of sale be harshly exercised, and at
a time when, having a regard to the interests of the
mortgagee, he would not have been advised to sell, yet
the sale cannot be impeached on that account.’ But
where the power of sale is given to a trustee, it is his
duty to attend equally to the interests of both parties.’
And a mortgagee ought not to exercise a power of sale
for other purposes than the recovery of his money.‘
And if he sells, after tender of principal and. interest
(and costs, unless they are unascertained, and the se-
curity ample), the sale will be set aside, as against him
and a‘purchaser with notice of the tender.’ 541.

1 St. 2 1826; 2 Sp. 676-8. 2 2Sp. 634, 646. 5 2 Sp. 636.

* Robertson v. Norris, 1 Gif. 421; affirmed on appeal.*

5 Jenkins v. Jones, 2 Gif. 99.7

 

* Jones on Mortg. 2 1801, note.

+ In this country foreclosure of mortgaged property is effected
by judicial sale, and generally is the subject. of statutory provisions,
though independently of any statutory provisions, Equity has ju-
risdiction to order a sale and provide for carrying it out. Jones on
Mortg. ¢ 1573.
292 MORTGAGES OF REALTY.

A sale may be made without notice to the mortgagor,
and without his concurrence, unless that is made a con-
dition.” 542.

Where notice to the mortgagor is required, a clause
that a purchaser should not be required to ascertain
that notice had been given, and that the mortgagee’s
receipt should be a sufficient discharge, does not apply
to a case where the purchase is made with actual
knowledge that such notice has not been given.’ 548.

Where the surplus produce, on the execution of a
power of sale in a mortgage in fee is directed to be
paid to the mortgagor, his executors, etc., this is not
of itself a conversion of the equity of redemption into
personal estate. If the sale takes place in the life-
time of the mortgagor, the surplus is personal estate ;
but if he dies before the sale is made, the equity of re-
demption descends to the heir, and he is entitled to
the surplus.’ 544.

A trustee for sale cannot become the purchaser.‘
But a second mortgagee may buy under a power of
sale from the first mortgagee ; and in such case he will

1 2 Sp. 685; Newman ». Selfe, 33 Beav. 522.

? Parkinson v. Hanbury, 1 Drew. & Sm. 143.

5 2 Sp. 636.

‘ 2 Sp. 636; Turner, L. J., in Parkinson v. Hanbury, 2 D. J.
& §. 450.*

 

* Jones on Mortg. 3 1876; Michoud v. Girod, 4 How. Sup. Ct.
503. But where the sale is made by judicial process, there is
usually no restraint upon the purchase of the property by the
mortgage creditor. Jones on Mortg. 2 1882.
MORTGAGES OF REALTY. 293

‘obtain, as aguinst the mortgagor, an irredeemable title
to the property.' 545.

Where there are several incumbrances, a decree for
sale of an incumbered estate does not alter the relative
rights of the parties ; the purchase-money is substituted
for the estate? 546.

A mortgagee who sells a part of the mortgaged
property, must apply the proceeds of sale, first, in pay-
ment of interest and costs; and then he must either
pay the balance to the mortgagor, or apply it in re-
duction of the principal. 547.

The Court will not prevent a mortgagee é

: oncurrent
from using all the remedies belonging to his aaa
character of mortgagee, and exercising all the
powers that are given to him, as and when he pleases,
even concurrently.* A power of sale is only an addi-
tional remedy, and therefore does not interfere with
the right of the mortgagee to foreclosure.’ If a debt
is secured by the mortgage of real estate, and also by
covenant and collaterally by bond, the mortgagee may
pursue all his remedies at the same time. If he ob-
tains full payment on the bond or covenant, the mort-
gagor is, by the fact of payment, entitled to redeem the

} Parkinson v. Hanbury, 1 Dr. & Sm. 148; Shaw'v. Bunny, 33

Beav. 494; 2D. J. & 8S. 468; Kirkwood v. Thompson, 2 Hem. &
M. 392.*

 

2 2 Sp. 678.

3 Thompson v. Hudson, L. R. 10 Eq. 497.

4 2 Sp. 634. 5 2 Sp. 636.
* Jones on Mortg. 3 1884 and note. } Id. 2 1215.

t Id. ¢ 1221.
294 MORTGAGES OF REALTY.

estate, and foreclosure is prevented or not allowed.
But if the mortgagee obtains only part payment on
the bond or covenant, he may go on with his foreclo-
sure suit, and, giving credit in account for what he
has recovered on the bond or covenant, he may fore-
close for non-payment of the remainder. On the
other hand, if he obtains a foreclosure first, and alleges
that the value of the estate is not sufficient to satisfy
the debt, he is not absolutely precluded from suing on
the bond or covenant; but it is held by doing so he
gives to the mortgagor a renewed right to redeem, or,
in other words, opens the foreclosure; and, conse-
quently, upon the commencement of an action against
the mortgagor on the bond after foreclosure, he may
proceed to redeem, and upon payment of the whole
debt secured by the mortgage, he is entitled to have
the estate back again, and the securities given up.
After foreclosure, therefore, the Court will not restrain
the mortgagee from suing on the bond, provided he
retains the mortgaged estate in his own power, ready
to be redeemed, in case the mortgagor should think fit
to avail himself of the opening of the foreclosure.’ 548.

But if a mortgagee (except under a power of sale)
so deals with the mortgaged estate as to render it im-
possible for him to restore it on full payment, the
Court will prevent his suing at Law to recover the
mortgage-money ; as where he joins transferees of the
equity of redemption in an alienation of the property

1 2 Sp. 682.*

 

* See also Jones on Mortg. 2 1218, 1219.
MORTGAGES OF REALTY. 295

without being authorized by the mortgagor, and re-
ceives no part of the purchase-money.’ 549.

If a mortgagee sells under a power of sale and the
sale does not realize enough to pay off the mortgage
debt and interest, he may sue the mortgagor on his
covenant for the balance.’ 550.

“IV. We have already seen that as long as yy scien.
the mortgagor continues in possession, he has eee
aright of redemption, even at Law, under
the stat. 15 and 16 Vict. c. 76, ss. 219, 220, if an ac-
tion of ejectment is brought against him, and no suit
for redemption or foreclosure is pending in a Court of
Equity. And until foreclosure, the mortgagor, whether
in possession or not, is considered in Equity as sub-
stantially the owner of the estate, though his owner-
ship is subject to restrictions for the protection of the
mortgagee. Hence, if the mortgagor applies to be
allowed to redeem, before the right of re- , guity of
demption is lost by a lapse of twenty years, Tedemption.
during which no acknowledgment has been made by
the mortgagee of the mortgagor’s title or of his right
of redemption, the mortgagee will then be treated pre-
cisely as a trustee for the mortgagor, inasmuch as he
will be compelled to reconvey the estate, and account
for every kind of profit that he has made in the ordinary
way, or which, but for his wilful default, he might have

made? 551.

1 Palmer v. Hendrie, 27 Beav. 349; Rudge v. Richens, L. R. 8
C. P. 358.

° Rudge v. Richens, L. R. 8 C. P. 358.

8 See St. 2 1013, 1016, 1028a; and 3 and 4 Will. IV, v. 27,8.
28; 2 Sp. 644, 645, 648, 710, 806.
296 MORTGAGES OF REALTY.

The common equity of redemption, or ordinary
right which the mortgagor has in Equity of redeeming
the estate, is so inseparable an incident to a mortgage,
that it cannot be disannexed from such a transaction,
or controlled even by an express agreement.’ And
this constitutes an equitable estate in the land, which
may be granted, devised, and entailed; and if en-
tailed, might have been barred by a fine or recovery,
and may now be barred by a disentailing deed, and is
liable to a tenancy by the curtesy, and since the statute
3 and 4 Will. IV, c. 105, s. 2, to dower. 552.

A mortgagor may, by a subsequent deliberate act,
extinguish his equity of redemption. Thus, a mort-
gagee may purchase the equity of redemption of the
mortgagor. But the court views such a transaction
with jealousy. And if a mortgagor in embarrassed
circumstances conveys his equity of redemption (under
pressure for payment of the mortgage debt), for a sum
considerably less than its value, the sale will be set
aside.t 553.

The owner of the equity of redemption of part of
the estate in mortgage cannot separately redeem his
part; the mortgagee has a right to insist that the
whole of the mortgaged estate shall be redeemed to-
gether. And where a mortgagee lends two distinct
sums to the same mortgagor on two securities, although

1 St. 2 1019; 2 Sp. 618, 619, 628.

? St. 21015; 2 Sp. 642, 645.
2 Sp. 654.* 4 Ford v. Olden, L. R. 3 Eq. 461. * 2 Sp. 666.t

 

* Jones on Mortg. 2 711. + Jones on Mortg. 2 1072.
MORTGAGES OF REALTY. 297
they be only equitable securities, and although created
by two distinct instruments, and at different times, and
although the property in one be real and the other
personal, the mortgagor, or any one claiming under
him (even a purchaser of the equity of redemption or
mortgagee of the estate sought to be redeemed, who
had no notice of the mortgage on the estate not sought
to be redeemed), cannot redeem the property comprised
in one security without redeeming the other also; for
the person who has the two mortgages has a right to
consolidate them, so as to insist on both being paid, off
together. At least this is the case where the security
not desired to be redeemed is defective in title or de-
ficient in value. And where two mortgages of distinct
estates originally vested in different mortgagees are
transferred to one person, even with notice of a second
mortgage, the second mortgagee cannot redeem the one |
estate without the other. And the transferees of a
mortgage made by a person who afterwards: becomes
bankrupt, are entitled to tack a debt insufficiently se-
cured by a previous mortgage of other property made
to them directly, though they took the transfer after
and with notice of the adjudication. And where the
mortgagee has sold one estate under a power of sale,
he may apply the balance of the proceeds of that
estate, after payment of the mortgage debt upon it,
towards payment of the debt upon the other.’ 554.

1 Vint v. Padget, 1 Gif. 446; 2D. & J. 611; 3D. F. & J. 611;
Selby v. Pomfret, 1 Johns. & H. 336; 3 D. F.& J.595; St. 2 1023,
n.; 2 Sp. 651, 666, 726 ; Smith’s Compendium of the Law of Prop-
298 MORTGAGES OF REALTY.

Who may Even a tenant for life, a tenant by the
redeem. curtesy, a jointress, a tenant in dower in
some cases, a reversioner, a” remainder-man, a judg-
ment creditor, a tenant by elegit or by statute merchant,
the lord of a manor holding by escheat (as regards a
mortgage for a term of years, created by a mortgagor
who has died without heirs, though not as regards a
mortgage in fee, under which the whole estate has
passed to the mortgagee, so that there can be no es-
cheat), and indeed every other person having a legal
or equitable interest in or lien on the land, may insist
on redeeming the mortgage, in order duly to enforce
his claim; and when any such person does so redeem,
he or she becomes substituted to the rights and inter-
ests of the original mortgagee. But, as a general rule,

a cestui que trust must redeem through his trustee; and
‘no creditor or annuitant or legatee of the mortgagor,
who has not a specific security upon the property mort-
gaged, can redeem, though the mortgaged property
would, if redeemed, be applied in a course of admin-
istration in discharge of his claims.!. As regards the
right to redeem, there is no substantial difference be-
erty, 5th ed., par 1060; Wicks v. Scrivens, 1 Johns. & H. 215; Neve
v. Pennell, 2 Hem. & Mil. 170; Beevor v. Luck, L. R. 4 Eq. 237.*

1°St. 3 1023; 2. Sp. 660-3; Mildred v. Austin, L. R. 8 Eq. 220;
Dawson v. Bank of Whitehaven, L. R. 4 Ch. D. 639.

 

* But in this country the prevailing deetrine is, that a mort-
gagor may always redeem by paying the specific debt secured by
the mortgage, together with such prior liens as the mortgagee may
have been compelled to pay for the protection of the mortgage.
See Jones on Mortgage, 3 1083, and cases there cited.

+ Jones on Mortg. 3 1055, et seq.
MORTGAGES OF REALTY, 299

tween a mortgage in the form of a trust for sale and
a mortgage in the ordinary form.’ 555.

A purchaser of an equity of redemption cannot re-
deem an existing mortgage until his purchase is com-
pleted.? 556.

Every person who has a right to redeem the mort-
gage, may redeem any prior incumbrancer, on pay-
ment of principal, interest, and costs due to him; the
redeeming party being also liable to be redeemed by
those below him, who are all liable to be redeemed by
the mortgagor. 557.

In settling the accounts between the mort- annual
gagor and mortgagee, where the latter has ***
been in possession, sometimes annual rests are made,
so that the excess of rent or value beyond the interest
may be applied in liquidation of the principal. Asa
general rule, rests are not made where the interest of
the mortgage is in arrear at the time when the mort-
gagee takes possession. But where there is a special
reason for making annual rests, as where no arrears
or interest are due at the time when the mortgagee’
enters in possession, or any agreement exists between
the parties by which the interest in arrear is converted
into principal, there, and in such cases, annual rests
will be made.* Where the mortgagee has sold, and

. Wicks v. Scrivens, 1 Johns. & H. 215; Kirkwood v. Thomp-
son, 2 Hem. & M. 392.

2 2 Sp. 668. 5 2 Sp. 665.

4 St. 210164; 2 Sp. 809; Scholefield v. Lockwood (No. 3), 32
Beay. 439.*

 

* Jones on Mortg. 3 1139, 1140. See also Gibson v. Crehore,
5 Pick. 160.
300 MORTGAGES OF REALTY.

has retained sale-money beyond the interest and costs
due, a rest must be made at the time of the receipt of
such moneys. Annual rests will equally be directed
in respect of the occupation rent fixed on a mortgagee
in possession, as in respect of rents received.’ 558.
The mortgagor is not entitled to the pos-
session in respect of his equitable estate,
unless there is some special agreement to that effect,
but he holds it solely at the will of the mortgagee,
who may at any time, without giving any prior
notice, recover the same by ejectment against him, un-
less he is ready to pay principal, interest, and costs,
or against his tenants under a tenancy created subse-
quently to the mortgage; and he is not even entitled
to reap the crop. But so long as he continues in pos-
session by the permission of the mortgagee, he is en-
titled to take the rents and profits in his
own right, without rendering any account
whatever to the mortgagee, though the mortgaged
property may have become an insufficient security.
But he will not be permitted to do anything
which may diminish the security of the
mortgagee. Yet he may cut down timber when in
possession, unless the land alone would be a scanty
security? 559.
eres By the Judicature Act, 1873 (36 and 37
Priamiby Wict. c. 66), s. 25 (5), “ A mortgagor en-
mortgagor. titled for the time being to the possession or

Possession.

Rents.

Waste.

1 Thompson v. Hudson L. R. 10 Eq. 497.
2 2Sp. 811.
3 St. 3 1017; 2 Sp. 646, 648.
MORTGAGES OF REALTY. 301

receipt of the rents and profits of any land as to which
no notice of his intention to take possession or to enter
into the receipt of the rents and profits thereof shall
have been given by the mortgagee, may sue for such
possession, or for the recovery of such rents or profits,
or to prevent or recover damages in respect of any
trespass or other wrong relative thereto, in his own
name only, unless the cause of action arises upon a
lease or other contract made by him jointly with any
other person.” 560.

A mortgagee in possession is not obliged Expendi-
to lay out money any further than to keep ‘*
the property in necessary repair; and he has no right
to make it more expensive for the mortgagor to redeem
than may be required for the purpose of keeping the
property in a proper state of repair, and of protecting
the title to the property. Hence he will not be allowed
for general improvements made without the consent or
acquiescence of the mortgagor.’ 561.

‘V. Where a mortgage is by assignment of |
a leasehold interest, the mortgagee, unless paee a
there is a special provision to the contrary,
as between the mortgagor and the mortgagee, takes
the leasehold subject to the covenants and obligations
of the original lease. But if an underlease, instead of
an assignment, is taken, the mortgagee is protected.
562.

A mortgage, whether legal or equitable, of leasehold

1 St. 21016b; 2 Sp. 808.* 2 2 Sp. 614.

 

* Jones on Mortg. % 1126-1128.
302 MORTGAGES OF REALTY.

premises, includes the goodwill of a trade followed on
the premises, and the fixtures... 563.
neues Neither the mortgagor nor the mortgagee
renewable of a renewable leasehold is bound to renew,
leasehold. eee .
unless it is a part of his contract to do so.
If a renewable leasehold is assigned by way of mort-
gage, an agreement between the landlord and the mort-
gagee, without the concurrence of the mortgagor, will
not bind the mortgagor.’ 564.
at VI. Where the relation of mortgagor and
. Rent ae es :
instead of mortgagee subsists, it is hardly possible that
an agreement under which the mortgagee is
to hold the land at a rent as an equivalent for interest
can be supported; it being considered, independently
of the question as to usury in cases under the old law,
to be against public policy that such agreements should
be permitted to take place between parties, one of whom
has an obvious advantage over the other. 565.
sides VIL. A solicitor may take a mortgage
gage for security from his client for costs already due,
but (except so far as the stat. 33 and 34 Vict.
c. 28, may apply) not for costs to become due.* 566.
Giga: . vrll Lands are sometimes conveyed by
yeyancein’ way of security to a third person agreed upon
by the borrower and a lender, or to the lender
himself, in trust, upon non-payment of the loan at the
appointed time, and usually upon notice, to sell the
estate, to satisfy the debt out of the proceeds. This is
a species of mortgage. It is not such a trust for sale

1 2 Sp. 687. > 2 Sp. 650; Coote Mortg., 3d ed. 122, 344.
3 2 Sp. 617. ‘ 2 Sp. 630.
MORTGAGES OF REALTY. 303

as the mortgagor can enforce; because the discretion as
to selling or not is in the mortgagee alone. On the
other hand, the mortgagee cannot foreclose, but is lim-
ited to his remedy by sale. And in this case, though
the mortgagor covenant to join, the purchaser cannot
require that he should join in the conveyance.’ 567.

1 2 Sp. 634; Locking v. Parker, L. R. 8 Ch. Ap. 30.*

 

* Jones on Mortg. 2 1764, et seg. The delay and expense inci-
dent to a foreclosure and sale in Equity have brought power of sale
mortgages and trust deeds into general use both in England and
in this country. A power of sale, whether vested in the creditor
himself or in a trustee, affords a prompt and effectual security.
Although in several of the States a mortgage is by statute or ju-
dicial interpretation declared to be a mere security for the pay-
ment of a debt, and not a conveyance of the legal title, yet this
view does not in any way impair the doctrine of powers to sell.
A deed of trust is often preferred to a mortgage on account of the
intervention of a disinterested person as trustee, who becomes the
agent of both parties, and should perform his duties with the
strictest impartiality (Sherwood v. Saxton, 63 Mo. 78, and cases
cited). A resort to proceedings in Equity is more frequent under
deeds of trust than with mortgages, sometimes to control the ad-
verse action of the trustee, and a trustee who has once accepted the
trust is not allowed to lay it down without the assent of the bene-
ficiary or the decree of a Court of Equity (Drane v. Gunter, 19 Ala.
731). The sale, however, is by virtue of the power and not of the
decree when the Court enforces the power, and upon the death of
a trustee a Court of Equity has power to appoint a new trustee to
execute the power of sale (Holden v. Stickney, 2 MacArthur (D.C.),
141). -No particular form of words is necessary to constitute the
power. The essential provisions of it should be clearly and fully
expressed, for the title of the purchaser under the power rests upon
‘the authority there given (Graeme v. Cullen, 23 Gratt. (Va.), 266).

If in any case it is attempted to pervert the power from its le-
gitimate purpose, and to use it for the purpose of oppressing the
debtor, or of enabling the creditor to acquire the property himself,
304 MORTGAGES OF REALTY.

IX. Where a person affects to make a

IX. Defec- 7 é
tivemort- mortgage, but the deed is defective, further
assurance will be enforced in Equity.’ If a

1 2 Sp. 639.

 

a Court of Equity will enjoin the sale, or will set it aside after it
is made (Jones’s Mortg. ¢ 1801). So long as the mortgagee is
clearly within the authority given by the power, an intended sale
will not be restrained, although the exercise of it be harsh and
improvident. The grounds for interference must be very strong,
and must show probable irreparable injury or a clear breach of
trust (Id. 3 1802). The notice usually required in powers of sale
is a publication for a certain length of time in one or more
newspapers published in the county in which the premises are
situate. And when the validity of a sale under a power is ques-
tioned by the debtor for defect of advertisement, the burden of
proving a proper advertisement rests upon the purchaser or other
party insisting on the sale (Id. 4 1827, 1829). The advertisement
of the sale should fully comply with the terms of the power, and
give with clearness all reasonable information as to proposed sale,
that it is by virtue of a power, etc., and that there has been a default
(Id. 4 1839). The property should be properly described, and the
notice must show who orders the sale (Id. 3 1843). A trustee
under a deed of trust is bound to render the sale as beneficial as
possible to the debtor, and should sell in parcels (if the property
is susceptible of subdivisions) if it will bring more than selling as
a whole (Id. 2 1859). The purchaser takes a title divested of all
incumbrances made since the creation of the power (Id. 2 1654,
1897).

A mortgagee or trustee with power to sell must sell fairly and
for the best price he can obtain. If a trustee permits property to
be sacrificed by a sale for a small fraction of its value, the sale will
be set aside (Id. 1909). A secret arrangement between the mort-
gagee and a person interested in buying the property, whereby
competition is prevented, avoids the sale (Id. 31910). Any fraud
or deception practiced on the owner, in consequence of which he
has lost his rights, is sufficient ground for setting aside the sale
MORTGAGES OF REALTY. 305

man, after making a defective mortgage to one person,
makes a mortgage by an assurance which is effectual
to another person, the second will prevail, if he lent
his money on the security of the land, and without
‘notice; because he has equal equity and the legal title.*
But (so far at least as the stat..1 Vict. c. 110, does not
alter the case) a defective mortgage would prevail
against a mere subsequent judgment creditor, who is
in the nature of a volunteer as regards his lien on the
land 568.

X. A mortgagee, whose money is not paid

a lige “j : X. Pay-

on the day appointed by the proviso, is en- a
titled to six months’ notice previously to its
being paid. If the money is not tendered on the day
of the expiration of the notice, the mortgagee is en-
titled to another six months’ notice. If the mortgagee
refuse to receive his money after due notice, interest
will cease from the time of the tender, provided the
mortgagor keep the money continually ready and make
no profit by it. The first mortgagee is bound to ac-
cept payment of his principal, interest, and costs when
tendered by a second mortgagee, and thereupon to con-

1 2 Sp. 639. 2 2 Sp. 639, 640.*

 

(Id. 21911). But mere inadequacy of price is no ground for va-
cating a sale if fairly conducted in every respect (Id. ? 1915).

It is a settled rule of law in several States that where a mort-
gage or deed of trust has been given to secure the payment of sev-
eral notes, which become due at different times, the notes have
priority of lien in the order in which they become payable (Id. 2
1699, 19389, and cases cited).

* See also Jones on Mortg. 3 460, 461.

26
306 MORTGAGES OF REALTY.

vey to him the estate, whether the tender be made with
or without the privity of the mortgagor ; and, generally
speaking, he is justified in accepting payment from,
and transferring the legal estate to, any person who
tenders the principal, interest, and costs due to him,
that person being interested in the equity of redemp-
tion.’ 569.

If the condition is for payment to the mortgagee,
his heirs or his executors, the mortgagor, after the
death of the mortgagee and before forfeiture, may pay
either the heir or the executor, as he pleases, but after
forfeiture the money is to be paid to the executor ; and
even if paid to the heir before forfeiture, it belongs to
the executor ; because in Equity a mortgage debt is
considered as part of the mortgagee’s personalty ; the
money came from that source, and is to be returned to
it.” 570.

When an agreement for a mortgage contains a stipu-
lation that the principal money shall not be called in
for a certain time, the postponement is conditional on
punctual payment of interest.’ 571.

If a mortgagor pays off the principal to the solici-
tors of the mortgagee, instead of the mortgagee him-
self, without ascertaining that they are authorized to
receive it, he does it at his own risk. So that if the
solicitors misappropriate the money, the mortgagor

1 2 Sp. 652, 653.* 2 See 2 Sp. 650, 651.4
5 Seaton v. Twyford, L. R. 11 Eq. 591.

 

* Jones on Mortg. 2 877, 878. + Id. 3 1931, note.
MORTGAGES OF REALTY. 307

will remain liable to the mortgagee or his assignee.
572.

XI. There is a kind of mortgage called a x1 wen
Welsh mortgage, which, however, has now ™tege
fallen into disuse, in which there is no condition or
proviso for repayment at any time. The agreement
is that the mortgagee, to whom the estate is conveyed,
shall receive the rents till his debt is paid; and in such
case the mortgagor and his representatives are at liberty
to redeem at any time.” 573,

XII. Where a husband is seized jure yy wort.
uxoris, and he and his wife join in a mort- 86°F
gage, reserving the equity of redemption to ‘**
him and his heirs, he has the equity of redemption
jure uxoris as he before had the legal estate, unless it
is evident that the transaction is more than a mere
mortgage, or the limitation of the estate is perfectly
distinct from the equity of redemption.’ But at the
same time the intention to alter the previous title may
be manifested by the language of the proviso itself,
and there is no necessity for an express declaration or
a recital to that effect.* 574.

Where a mortgage is made of the wife’s lands, to
secure money borrowed by. the husband—and in the

1 Withington v. Tate, L. R. 4 Ch. Ap. 288.

2 2 Sp. 616. :

3 2 Sp. 644. See also Earl of Huntingdon v. Countess of Hun-
tingdon, 2 Lead. Cas. Eq., 2d ed. 388, et seq.; Eddlestone v. Col-
lins, 3D. M. & G.1; Whitbread v. Smith, Id. 727; Heather ».
O'Neil, 2 D. & J. 399; In re Betton’s Trust Estates, L. R. 12 Eq.
553. ;

4 Atkinson v. Smith, 3 D. & J. 186, 192.
308 MORTGAGES OF REALTY.
absence of evidence to the contrary, the loan will be
presumed to have been obtained for his purposes—his
estate, especially where he covenants to pay the debt,
is made to pay the mortgage-money, at the instance
of the wife or of the heir of the wife; although
the husband may have paid off the mortgage, and
taken an assignment in trust for himself, his execu-
tors, etc., and though by consequence legacies given by
the husband may be defeated ; for the wife joining in
the security does not make it less the debt of the hus-
band, and her estate is considered as surety only for
the debt." 575.

XL First SII. After notice of a second mortgage,
morgage’, the first mortgagee is answerable to the
to second. second for the rents and profits he has re-
ceived or might have received.” And where the mort-
gagee enters, and then permits the mortgagor to re-
ceive the rents, he will be accountable, as mortgagee
in possession, to a subsequent incumbrancer, of whose
incumbrance he had notice.’ 576.

XIV. The mortgagee, or those claiming
under him, cannot dispute the title of the
mortgagor.’ 577.

XV. An assignment of a mortgage is an
ment ef. assignment of the debt, and it is not neces-
mortgage: sary that notice should be given to the mort-
gagor” 578.

If a mortgagee in possession assigns over his mort-

XIV. Title.

" 2 Sp. 841, 842. See Scholefield v. Lockwood (No. 1), 32 Beav.
434, as a case to which this doctrine did not apply.

2 2 Sp. 648. 5 2 Sp. 806. 4 2 Sp. 654.

° 2Sp. 645; Withington v. Tate, L.'R. 4 Ch. Ap. 288.
MORTGAGES OF REALTY. 309

gage without the assent of the mortgagor, the mort-
gagee is still bound to answer for the profits both
before and after the assignment, though assigned only
for his own debt; for he is under a trust to answer
for the profits of the pledgé.’ 579.

The assignee of a mortgagee cannot stand in any
different character or hold any different position from
that of the assignor himself.? 580.

Where a person obtains a mortgage without con-
sideration and the mortgagee transfers it to a third
person, who has no notice of the want of considera-
tion, neither the transferor nor the transferee can en-
force it, but it will be ordered to be cancelled.? 581.

If a person pays off a first mortgage, and takes the
deeds and a new mortgage without notice of a second
equitable mortgage, he will be entitled to priority
over the second equitable mortgagee who had notice
of the first mortgage.* 582.

XVI. The purchaser of a mortgage, as a xyz what

general rule, has a right to claim, against Purchaser

the mortgagor, and all deriving title under %,"3°*
him, the full amount of what is due on the

security, whatever he may have given; for as he
takes the risk, so he is allowed the gain, if any. But

an heir, a trustee, an agent, or an executor of the mort-

' 2 Sp. 656.

2 Walker v. Jones, L. R.1 P.C. 50. See Pease v. Jackson, L.
R. 3 Ch. Ap. 576.

3 Parker v. Clarke, 30 Beav. 54.*

4 Pease v. Jackson, L. R. 3 Ch. Ap. 576.

 

* Jones.on Mortg. % 1470.
310 MORTGAGES OF REALTY.

gagor, can only claim the amount which he gave for
it; unless he has bought in that security to protect
one of his own.' 583.

XVII. A gift of a mortgage security is a
of mortgtse gift of all the testator’s interest in the money
security.

and the security.” 584.

XVIII. Where a testator devises all his
veetya veal estates, whatsoever and wheresoever,
mere tiie legal estate in mortgaged premises will
pass by the will, unless a different intention is to be
collected from the context. But it would seem that a
general devise, or even a particular devise of the
mortgaged lands, will not of itself have the effect of
carrying the beneficial interest in the mortgage.® 585.
XIX, Right 1X. Generally speaking, a purchaser of

of per oe «© an equity of redemption, with notice of sub-
sarge. Sequent incumbrances, stands in the same

oe situation, as regards the subsequent incum-

brancers, as if he had himself been the mortgagor.
Right or nd where a second equitable mortgagee,
scttble ~~ Who becomes such without notice of the first
mortgagee. equitable mortgage, afterwards, with notice
of the first incumbrance, obtains the legal estate from
the mortgagor, he holds the legal estate subject to the
first incumbrance.* 586.

* 2 Sp. 657, 739; Hobday v. Peters (No. 1), 28 Beav. 349.

2 2 Sp. 655.

3 2 Sp. 655; Braybroke v. Inskip, Tudor’s Lead. Cas. on R. P.,
2d ed. 876, et seg.; Bowen v. Barlow, L. R.11 Eq. 454; 8 Ch.
Ap. 171.

42 Sp. 746.

 

* Jones on Mortg. 3 740, 752, et seq.
MORTGAGES OF REALTY. 311

XX. If a mortgage is cancelled by a mort-

dt eee : XX, Extin-
gagee, and it is so found in his possession on guishment

his death, it is as much a release as cancelling ee debt. by
a bond. But it does not convey or revest “"“"®
the estate in the mortgagor ; for that must be done by
some deed; the legal estate in such a case descends
upon the heir; but there being no debt at Law or in
Equity, at least upon the mortgage, the Court holds
the heir to be a trustee for the mortgagor.’ 587.

XXI. If the debt is paid off, the mort- ys7 or by
gage is extinguished in Equity, and the Payment,
mortgagee is deemed a trustee for the mortgagor.?
And an extinguishment of the mortgage ,.,,
debt will take place where the mortgagee ™°"8°™
becomes the absolute owner of the equity of redemp-
tion; for then the equitable estate merges in the legal ;
unless it was apparently his intention, or it is manifestly
for his interest, to keep the incumbrance alive.* 588.

Where a mortgagor and mortgagee join in conveying
the mortgaged premises to a new mortgagee, the old
mortgage may not be extinguished, as regards priority
over a subsequent incumbrance, though the old mort-
gage debt be paid off by the new mortgagee, and
though there be a new covenant by the mortgagor,
and a new proviso for redemption, and though there
be no assignment of the old mortgage debt, if the
operative words extend in the usual way to all the
right and title of the old mortgagee in the premises.*
589.

1 2 Sp. 749. 2 2 Sp. 640.
3 St. 2 1085 b; see Hayden v. Kirkpatrick, 34 Beav. 645.
* Phillips v. Gutteridge, 4 D. & J. 531.
312 EQUITABLE MORTGAGES.

XXII. Themortgagee cannot be compelled
cma” te reconvey until the money is in pocket;
ci payment into Court is not sufficient.’ 590.
oie XXIII. Where a person makes a mort-
Death of gage in fee, and dies intestate without heirs,

mortgagor

intestate, the equity of redemption does not escheat, to

hele, the Crown, but belongs to the mortgagee,
subject to the debts of the mortgagor.’ 591.

SECTION II.
OF EQUITABLE MORTGAGES.

BESIDES mortgages created by a formal instrument,
and valid at Law as well as in Equity, there are
Equitable Mortgages. These are created either by a
written instrument, or by a deposit of deeds with or
without writing? Any written agreement or direc-
tions, or other instrument in writing, showing that it
was the intention of a debtor thereby to make his
land or other property a security for the debt, will be

1 2 Sp. 653. ? Beale v. Symonds, 16 Beav. 406.
3 2Sp. 777; Russel v. Russel, 1 Lead. Cas. Eq., 2d ed. 541,
et seq.*

 

(a) On this subject see stat. 7 and 8 Vict. c. 76, s. 9, repealed
by stat. 8 and 9 Vict. c. 106, s.1; and see stat. 13 and 14 Vict. e.
60, ss. 19, 20; 37 and 38 Vict. c. 78, s. 4.

* Mandeville v. Welch, 5 Wheat. 277; Jones, Mortg. 2 163,
179.
EQUITABLE MORTGAGES. 313

equivalent in Equity to an actual mortgage by deed
or to a pledge. And a deposit of all or some of the
material deeds or documents of title constitutes an
equitable mortgage, though they do not show a good
title in the depositor (as where they do not comprise
the conveyance to him), if made with a creditor
(whether with or without any written memorandum,
and even without a word passing) as security for an
antecedent debt, or on a fresh loan of money, and if
received by him’ (as far as it would appear) in good
faith and in the belief that they were the title-deeds
of the estate.” 592.

Where the Court is satisfied of the good faith of the
person who has got a prior equitable charge, and that
he was led to believe that he had got the necessary
deeds, the Court will not hold that he was bound to
examine the deeds. And if he does not, and they do
not show any title in the mortgagor, yet such equitable
mortgagee is entitled to priority, even over a second
equitable mortgagee, without notice, who has deeds
which show a complete title in the mortgagor, and
has a memorandum of deposit. This is only defensi-
ble on the ground of public convenience, in facilitat-

1 2 Sp. 777-779; Fenwick v. Potts, 8 D. M. & G. 506; Daw ».
Terrel, 83 Beav. 218.* ©

2 St. ¢ 1020; 2 Sp. 781; Lacon v. Allen, 3 Drew. 579; Roberts
v. Croft, 24 Beav. 223; 2D. &J.1; Dickson v. Muckleston, L.
R. 8 Ch. Ap. 155.+

8 Dixon v. Muckleston, L. R. 8 Ch. Ap. 159.

 

* Jones Mortg. 2 187; Edwards v. Trumbull, 50 Pa. St. 509.
+ Jones Mortg. ¢ 180, 182.
27
314 EQUITABLE MORTGAGES.

ing loans by means of equitable mortgages. It illus-
trates the great danger of lending on such securities.
593.

The deposit will cover subsequent advances, if it
clearly appears that they were made upon the faith of
that security, or that the original deposit was con-
tinued with an agreement for a further advance.’ 594.

The meaning and object of the deposit may be ex-
plained by parol evidence.’ And evidence is admissi-
ble to show that a delivery of deeds to a third person,
by a person not being the party whose estate is sought
to be charged, even though no money passed at the
time, constituted an equitable mortgage.’ 595.

An equitable mortgage, by deposit of title-deeds, will
have preference over a subsequent purchaser or mort-
gagee of the legal estate with notice; but not over a sub-
sequent purchaser or mortgagee who has the legal estate,
and had no notice of such equitable mortgage.* 596.

An equitable deposit with memorandum of charge
by a devisee is an alienation which pro tanto prevents
a creditor of the testator from subsequently obtaining
a charge on the estate as assets, under the stat. 3 and 4
Will. 4,¢. 104.5 597.

An equitable incumbrancer on property, who has
distinct notice of a prior incumbrance, cannot, by con-
cealing his knowledge from his assignee, give such
assignee a better right than that which he himself pos-
sesses.© 598.

12 Sp. 781. 2 2 Sp. 784. 3 2 Sp. 784,

4 Coote Mortg., 3d ed. 170.

® British Mutual Investment Co. v. Smart, L. R. 10 Ch. Ap. 567.
§ Ford v. White, 16 Beav. 125.
MORTGAGES AND PLEDGES OF PERSONALTY. 315

Where a trustee of funds invested on a mortgage in
his name, deposits the deeds, without notice of the
trust, to secure an advance to himself, the cestuis que
trust are entitled to priority over the equitable mort-
gagee, and to delivery up of the deeds.’ 599.

Where a simple contract debt has been secured by a
deposit of deeds, unaccompanied by any stipulation as
to interest, or any memorandum from which an exclu-
sion of interest can be inferred, the mortgagee is en-
titled to interest at the rate of £4 per cent., on the
principle that adeposit of deeds to secure a loan is to be
considered as an agreement to execute a mortgage of the
property comprised in the deeds with interest.’ 600.

In James v. James (Li. R. 16 Eq. 153), the Lord
Justice James (sitting for V.-C. Wickens) held that
the relief to which an equitable mortgagee by deposit
is entitled, is foreclosure and not sale. But. the point
seems doubtful 601.

SECTION III.

OF MORTGAGES AND PLEDGES OF PERSONAL PROPERTY.

I. A MORTGAGE of personal property is @ 1 4 mort-

transfer of the ownership itself, subject to be Si%5,0"32

defeated by the performance of the condition ee

within a certain time. But a pledge only %*™
1 Newton v. Newton, L. R. 6 Eq. 135.

2 In re Kerr’s Policy, L. R. 8 Eq. 331.
3 See St. 2 1026; 2 Sp. 676-8.
316 MORTGAGES AND PLEDGES OF PERSONALTY.

passes the possession, or at most a special property, to
the pledgee, with a right of retainer till the debt is paid
or the engagement is fulfilled." 602.

II. A mortgage or a pledge of personal
property may be held till a subsequent debt
or advance, without notice of a mesne incumbranee, is
paid, as well as the original debt (except in a case of
a bankruptcy), on the ground that it may be presumed
that the mortgagee or pledgee would not have lent the
further sum except on the credit of the mortgage or
pledge, and that he who seeks equity must do equity.
This presumption may indeed be rebutted by circum-
stances; but, unless it is rebutted, it will generally
prevail in favor of the lien against the pledgor him-
self, although not against his creditors having a spe-
cific lien or interest in the property, or against subse-
quent purchasers of the equity of redemption.’ 603.

A mortgagee whose security exceeds the debt se-
cured, may apply the balance in payment of any un-
secured debt due to him from the mortgagor, as against
the mortgagor’s executors.’ 604.
ees III. A mortgagor of personal property
aii to re- May redeem, if he applies within a reason-
srortgauce's able time. But, on the other hand, the mort-
righttosell. Gagee may, on due notice, sell the property,
instead of proceeding to foreclose.* The reason would
appear to be that on which a Court of Equity acts in
not decreeing a specific performance of agreements re-

1 St. 2 1030; 2 Sp. 771. ? St. 1034; 2 Sp. 772, 778.

® In re Haselfoot’s Estate, Chauntler’s Claim, L. R. 13 Eq. 327

* St. 41031; 2 Sp. 637; Carter v, Wake, L. R. 4 Ch. D. 605.

II. Tacking.
MORTGAGES AND PLEDGES OF PERSONALTY. 317

specting personal property ; namely, that other things
of the same kind, and of the very same worth, even
to the owner himself, may be purchased for the sum
which the articles in question fetch ; and therefore if
such property is mortgaged, the mortgagee may prop-
erly be allowed to sell it, on due notice, without the
inconvenience of foreclosure. 605.

IV. If a person transfers his shares in a

IV. Mort-

company by way of mortgage, and the mort- gase of
gagee, as registered owner, becomes liable for ea
calls or other payments, he cannot compel his mort-
gagor to indemnify him, unless he comes to redeem.’
606.

V. The mortgagee of a ship is entitled toy yortgage
the accruing freight from the time he takes °f **P-
possession. A security valid in Equity may be given
upon freight to be earned or a cargo to be acquired.’
607.

The first registered mortgagee of a ship, by taking
possession of her before the freight is completely earned,
obtains a legal right to receive the freight, and to re-
tain thereout not only what is due on his first mort-
gage, but also the amount of any subsequent charge
which he may have acquired on the freight, in priority
to every equitable charge of which he had no notice;
and it makes no difference that a subsequent incum-
brancer was the first to give notice to the charterers of
his charge on the freight.* 608.

A legal mortgage of a ship must be in the form

1 2 Sp. 774. 2 2 Sp. 775. 3 2 Sp. 775.
+ Liverpool Marine Credit Co. v. Wilson, L. R. 7 Ch. Ap. 507.
318 MORTGAGES AND PLEDGES OF PERSONALTY.

described by the Merchant Shipping Act (17 and 18
Vict. c. 104). Prior to the stat. 25 and 26 Vict. c.
63, s. 3, an equitable mortgage was invalid.’ But by
that enactment, “equities may be enforced against
owners and mortgagees of ships in respect of their in-
terest therein, in the same manner as equities may be
enforced against them in respect of any other personal
property.” 609.
; VI. In the case of pledges, if a time for
ara Hehe redemption is fixed by the contract, still the
ae pledgor may redeem it afterwards, if he
applies to the Court within a reasonable time. If no
time is specified for the payment, the pledgor may re-
deem it at any time during his life, unless he is called
upon to redeem by the pledgee; and if he fails in so
redeeming it, his representatives may redeem it.2 610.
VII. Plea- VII. On the other hand, the pledgee, on
see's tights. giving due notice, may sell the pledge with-
out any decree of sale? 611.

In Carter v. Wake (L. R. 4 Ch. D. 605), Sir G.
Jessel, M. R., held that the pledgee had no right to
foreclose. 612.

1 Liverpool Borough Bank v. Turner, 2 D. F. & J. 502.*
* St. @ 1032; 2 Sp. 637, 772, 773.
5 St. 21083; 2 Sp. 637, 771.

 

* The Act of Congress of July 29th, 1850, requires every con-
veyance of an American vessel including mortgages to be re-
corded in the office of the Collector of Customs of the port where
such vessel is registered or enrolled. Smith, Manual Common Law,
Am. ed. (289), note.
OF LIENS. 319

SECTION Iv.
OF LIENS.

Lirns in Equity are wholly independent rquitavie
of the possession of the property. 613. general,

If a consignee accepts a consignment, with
express directions to apply it or the proceeds Hen ae
of it in a particular mode, he cannot set up
his general lien in opposition to those directions. In
such a case only what remains after answering the
particular directions, can become subject to the general
lien. 614.

The usual way of enforcing a lien in Equity is by
a sale of the property to which it is attached.? 615.

The lien of a solicitor on the deeds, books,
and papers of his client, for his costs, is not solteltoy for
like a lien-arising in the case of contract; it a
has not the character of a pledge or a mortgage ; but
it is merely a right to withhold the deeds, books, and
papers, which have come into his possession as solici-
tor, and not a right to enforce his claim against the
client. It prevails as against the representatives of
the client, but it is only commensurate with the right
of the client, and is subject to the rights of third per-
sons as against him ; so that a prior incumbrancer can-

not be affected by it; and when a mortgagee is paid

1 Frith v. Forbes, 4 D. F. & J. 409. 2 St. 2 1217.
320 OF LIENS.

off, the solicitor of the mortgagee cannot retain the
deeds.! And a solicitor acting both for the mortgagee
and the mortgagor, in the preparation of a mort-
gage, has no lien on the title-deeds in his possession
for costs due to him from the mortgagor, unless such
lien is expressly reserved, even though the mortgagee
may have known that the solicitor had such lien as
against the mortgagor.’ 616.

But a solicitor has a lien upon a fund realized in a
suit, as to so much as may belong to his own client,
for his costs of the suit or immediately connected with
it; and this is a lien which he may actively enforce.
617.
suites If one of two joint tenants of a lease re-
joint news for the benefit of both, he will have a

"lien on the moiety of the other joint tenant
for a moiety of the fines and expenses.* 618.

A trustee is entitled to a lien on the trust
estate for his expenses.6 619.

Annuitants scheduled to a trust deed do
not acquire any lien upon the trust estate,
unless they are made parties to the deed.’ 620.

1 2 Sp. 800, 801; Francis v. Francis, 5 D. M. & G. 108; Turner
v. Letts, 7 D. M. & G. 243; see also Watson v. Lyon, Id. 288; and
In re Bank of Hindustan, etc., Ex parte Smith, L. R. 3 Ch. Ap.
125; In re Faithful, L. R. 6 Eq. 325.*

? In re Snell, L. R. 6 Ch. D. 105.

. ° 2 Sp. 802; Verity ». Wylde, 4 Drew. 427; Haymes v. Cooper,
33 Beav. 431.
4 2 Sp. 803. 5 2 Sp. 808. § 2 Sp. 104.

of atrustee ;

of annui-
tants.

 

* See also Stewart v. Flowers, 44 Miss. 513; In re Paschal, 10
Wall. 488,
OF LIENS. 321
Where a testator gives a legacy to each of arse
his daughters, on condition that she shall l-
convey her share of certain real estate, to which the
daughters were entitled, to the sons of the testator to
whom he gives his residuary personal estate, and the
daughters convey their shares of the real estate to their
brothers, but do not obtain payment of their legacies,
it has been held that the daughters are not entitled to
any lien on the real estate for their legacies, but have
a mere personal remedy.’ 621.

1 Barker v. Barker, L. R. 10 Eq. 438.
322 APPORTIONMENT AND CONTRIBUTION.

CHAPTER IV.

OF APPORTIONMENT AND CONTRIBUTION.

1 Juriedic. LUN several cases under these heads, as-
tion. sistance may be had at Law. But even in
these cases it may be necessary to resort to Equity, in-
stead of proceeding at Law, in order to avoid a multi-
plicity of suits; for where there are several parties, as
each is only liable to contribute for his own portion,
separate actions and verdicts are necessary against
each.) 622.
Ee teen oe hecntiaue e
apportion- ? ? ?
mente pense, or liability; and in the case of an
apportionment of the latter class, a corresponding con-
tribution is enforced, consequent on such an appor-
tionment. 623.
haa To mention an instance of an apportion-
tions of the ment of a benefit, if an apprentice-fee is
given, and the master afterwards becomes
bankrupt, Equity will decree an apportionment.’ And
where portions are payable to daughters at a certain
age or on marriage, and maintenance is to be allowed,
payable half-yearly, at specific times, until the portions
are due, if one of the daughters should attain the given
age at an intermediate period, the maintenance will be
apportioned in Equity.® 624.

1 St. 2477, 478. 2 St. 2472, 478. 8 St. ¢ 479; 2 Sp. 462.
APPORTIONMENT AND CONTRIBUTION. 323

On the other hand, with regard to aN AP- sHustra-
portionment of, and contribution towards, an Dene
incumbrance, loss, expense, or liability, in pens of

the second

the absence of an indication to the contrary, ‘**

where several estates or parts of estates are comprised
in one mortgage, and they become vested by devise,
descent, or otherwise, in several persons, each estate or
part of an estate mortgaged must, according to its
value, contribute proportionally to keep down the in-
terest or to pay off the principal! And so it is with
different persons having distinct limited interests in an
estate which is under mortgage.? And as between a
tenant for life and a remainder-man under a will, the
interest on the testator’s debts must be borne by the
income as from the day of the testator’s death.’ 625.

III. Ifa tenant in tail in possession pays

. ced III. Volun-
off an incumbrance on the estate, it will or- tary ais.

dinarily be treated as extinguished, and the an ined
remainderman cannot be called upon for a past
contribution, unless the tenant in tail keeps tenant ie
alive the incumbrance by some suitable as- ~
signment or otherwise manifests his intention to hold
himself out as a creditor of the estate in lieu of the
mortgagee ; because a tenant in tail in possession can
make himself absolute owner of the estate ; and, there-
fore, if he discharges incumbrances, he is presumed to
do so in the character of owner, unless he clearly shows
that he intends to become a creditor in respect of such
discharge. But the like doctrine does not apply to a

1 St. 2 484. ? St. 2 485; 2 Sp. 837.

3 Barnes v. Bond, 32 Beav. 653. ;
324 APPORTIONMENT AND CONTRIBUTION.

tenant in tail in remainder, whose estate may be alto-
gether defeated, or to a tenant for life; for, if either
of these persons, and especially a tenant for life, pays
off an incumbrance, it must be presumed that he means
to keep it alive, against the inheritance for his benefit.
But, in both of these cases, the presumption may be
rebutted by circumstances which demonstrate a con-
trary intention. And if a tenant for life pays offa
bond debt, it will not be presumed that he meant to
keep it alive.’ 626.
IV. With respect to the compulsory dis-
IV. Com- ‘ .
pulaory die- charge of incumbrances, the modern rule is
incum- this: that the tenant for life shall contrib-
ute, beyond the interest, in proportion to the
benefit he derives from the liquidation of the debts, and
the consequent cessation of interest, which of course
will much depend on his age, and the computation of
the value of his life. If the estate is sold to discharge
incumbrances (as the incumbrancer may insist that it
shall), the surplus which remains after discharging the
incumbrance is to be applied as follows: the income
thereof is to go to the tenant for life during his life;
and then the whole capital is to be paid over to the
remainderman or reversioner.? 627.
Be V. A tenant for life is bound to keep
down the © down interest which has accrued during his
interest on : :
incem- own time, so far as the rents and profits will
extend. But if there are any arrears which
1 Morley v. Morley, 5 D. M. & G. 610; St. 3 486; 2 Sp. 308,
344, 345, 843.
2 St. 2487; 2 Sp. 551, 841.
APPORTIONMENT AND CONTRIBUTION. 325

accrued during the life of a preceding tenant for life,
and such arrears cannot be recovered from his estate,
they are primarily a charge upon the inheritance.’ 628.
Where a tenant for life of an estate, subject to a
charge bearing interest, pays the interest, although
the rents and profits are insufficient for that purpose,
he cannot make himself an incumbrancer on the estate
for the excess in his payments, if he has not given to
the remainderman any intimation of the insufficiency
of the rents and profits, and of his intention to charge
the excess of his payments on the inheritance.? 629.
A tenant in tail in possession, if of full age, cannot
be compelled by the remainderman or reversioner to
pay the interest ; because he can make himself absolute
owner of the estate; and even if the remainderman or
reversioner ultimately takes, still, instead of having
any just ground of complaint that the interest has not
been kept down, he has cause to be grateful to the
tenant in tail for not barring the remainder or rever-
sion. If, however, such a tenant in tail does pay the
interest, his personal representatives have no right to
be allowed the sum so paid, as a charge on the estate ;
because he is supposed to have kept down the interest,
as owner, for the benefit of the estate. 630.
Tf a tenant in tail is an infant, his guardian or
trustee will be required to keep down the interest ;
' St. 8 488, 1028.a; 2 Sp. 551; Dixon v. Peacock, 3 Drew. 288,
292; Sharshaw v. Gibbs, Kay, 333; Tudor’s Lead. Cas. on R. P.,

2d ed. 82, et seq.
2 Lord Kensington v. Bouverie, 7 H. L. Cas. 557.
3 St. 2 488.
326 APPORTIONMENT AND CONTRIBUTION.

because the infant cannot of his own free will bar the
remainder or reversion.’ 631.

‘tiaras  V Le Wikere leaseholds for years or for lives
of renewal are settled upon several persons in succes-
oe sion, the rule, in the absence of any express
direction, is, to apportion the charges for the renewal
of leaseholds between the tenant for life and the re-
mainderman, in proportion to the enjoyment they have
of the renewed lease.’ 632.

vit. contri: WII. Another case of apportionment and
bution contribution arises in regard to sureties.
sureties. Originally, it seems to have been questioned
whether contribution between sureties, unless founded
on some positive contract between them, could be en-
forced at Law. And although there is now no doubt
jurisdic. that it may, yet the legal jurisdiction now
nee assumed in no way affects that which belongs
to Equity.’ The contribution thus enforced is not
grounded on mutual contract, express or implied, but- --
on principles of natural justice.* 633.

Wheresuch Lf one surety, on the default of the prin-
contribu- cipal, is compelled to pay the whole sum of
enforced. money, or to perform any other obligation
for which all become bound, he can oblige each of his
co-sureties, and the representatives of any deceased
surety, to contribute, whether the sureties are jointly
and severally bound, or only severally, unless there is

1 St. 2 488, note. 2 2 Sp. 545, 546.
5 St. 2 495, 496; Dering v. Earl of Winchelsea, 1 Lead. Cas.
Eq., 2d ed. 78, et seq.
St. 3 493.
APPORTIONMENT AND CONTRIBUTION. 327

an express or implied contract to the contrary, and.
whether their suretyship arises under the same instru-
ment or under different instruments, either executed
with his knowledge or not, if all the instruments are
primary concurrent securities for the same debt.!. But
if the instrument is intended to be only subsidiary to
and a security for the other in case of a default in
payment, and not to be a primary concurrent security,
the surety in the subsequent bond would not be com-
pelled to aid those in the other by any contribution.’
634.

The contribution will generally be equal ; yiatis the
but if there is a contract express or implied >™™-
to the contrary, it will be otherwise.* And if there
are several sureties, and one of them is insolvent, and
another pays the debt, he can recover from the solvent
surety or sureties, as much as such solvent surety or
sureties would have had to pay if the insolvent had
never undertaken the office of surety. And when
there are several distinct bonds, with different penal-
ties, and a surety on one bond pays the whole, the
contribution is in proportion to the penalty of their
respective bonds.* 6365.

1 See St. @ 492, 495, 497, 498; 2Sp. 843; Whiting v. Burke, L.
R. 10 Eq. 539; 6 Ch. Ap. 342.*

2 St. 3498; 2 Sp. 844. 3 St. 3498; 2 Sp. 844.
4 St. 2496; 2Sp. 844; Hitchman v. Stewart, 3 Drew. 271.

5 St. 3 497.

 

* In some of the American States, Courts of Law now follow
the rule adopted in Courts of Equity, in apportioning the share
of an insolvent surety upon those who remain solvent. St. Eq.
Jur. % 496 a, and cases cited.
328 APPORTIONMENT AND CONTRIBUTION.

VIII. Another instance of apportionment
General and contribution is that of general average,
avemé*- which is a general contribution that is to be
made by all parties in interest toward a loss or expense,
which, in the course of a voyage, is voluntarily sus-
\tained or incurred for the benefit of all; as where
goods are thrown overboard to lighten the ship. The
contribution is confined to the property saved thereby,
including the ship, the freight, and the cargo.’ 636.

1 St. 2 490, 491; Berkley v. Presgrave, Tudor’s Lead. Cas. Merc.
Law, 2d ed. 83, et seg.*

 

* Abbott on Shipping, pt. 3, ch. 8, 17.
PARTNERSHIP, 329

CHAPTER V.

OF PARTNERSHIP.

I. Courts or Equity exercise a full 1 sy saice
concurrent jurisdiction with Courts of Law ‘2
in all matters of partnership; and indeed, practically
speaking, they exercise an exclusive jurisdiction over
the subject in all cases of any complication or diffi-
culty... 637.

II. In general a Court of Equity will not

enforce a specific performance of a contract periem”
: ‘ : f
to enter into a partnership which may be agreement

to enter into

dissolved instantly at the will of either party, partner-
since that would ordinarily be useless. Nor ree

will it ordinarily decree a specific execution of an
agreement to enter into a partnership for a certain
time? But after a partnership has com- 4... ying
menced, the Court will carry into effect the into sfect.

articles of partnership, unless there is an en- ee

tirely adequate remedy at Law. An excep- chip has.
tion, however, occurs, where there is an “™mence®-

agreement, that, in case of any dispute, the same shall

1 St. 3 683. See, on this subject, Crawshay v. Maule, and Wal-
ters v. Taylor, Tudor’s Lead. Cas. Mere. Law, 2d ed. 310, 329,
et seq. ;

2 St. 2 666; Scott v. Rayment, L. R. 7 Eq. 112.

28
330 PARTNERSHIP.

be referred to arbitration; for Courts of Equity will
not enforce such an agreement, but will leave the par-
ties to their own pleasure.’ 638.

ee reir eran
oo y the articles for the duration o
ofterm. the partnership, continue to carry on busi-
ness without altering the terms, it will be deemed a
partnership at will, regulated by the articles so far
only as they are consistent with a partnership at will?
639.

III. A partnership may be dissolved, in
ation the ordinary way, by death; by the act of
Georeed. the parties; by effluxion of time; and in
other ways.’ But Courts of Equity will dissolve the
partnership before the regular time, in case, by reason
of the ill-feeling between the partners or other circum-
stances, it is impracticable to carry on the undertaking
at all, or at least according to the stipulations of the
articles, or beneficially ; or in case of the insanity, per-
manent incapacity, or gross misconduct of one of the
partners. And a partnership will also be dissolved at
the instance of a partner who was induced to enter
into it on a false representation.’ 640.

) St. 2 667, 670. ? Clark ». Leach, 32 Beav. 14.

5 See Smith’s Manual of Com. Law, Am. ed. 207.

* St. @ 673; Harrison v. Tennant, 21 Beav. 482; Jennings ».
Baddeley, 3 K. & J. 78; Baxter v. West, 1 Dr, & Sm. 173; Wat-
ney v. Wells; 30 Beav. 56; Essell » Hayward, 30 Beav. 158;
Rowlands v. Evans, 30 Beay. 302; Leary v. Shout, 33 Beay. 582.*

® Rawlins ». Wickham, 1 Gif. 355.

 

* Slemmer’s Appeal, 58 Penn. St. 168.
PARTNERSHIP. -331

IV. On the other hand, in the case of a

partnership existing during the pleasure of oe:

the parties, with no time fixed for its renun- oe

ciation, Equity will grant an injunction against a dis-
solution, if a sudden dissolution is about to be made in
ill faith, and would work irreparable injury.! 641.

V. An injunction will be granted to pre- y tjury
vent a partner from doing acts injurious to Prevented.
the partnership? 642.

VI. Where a dissolution has taken place, yy ascount
not only will an account be decreed, but, if Beare te
necessary, @ manager or receiver will be ap- °°"
pointed to close the business, and make sale of the
property.’ But a Court of Equity is not inclined to
decree an account, except under special circumstances,
if there is no actual or contemplated dissolution, so
that all the affairs of the partnership may be wound
up.* 643. : ;

VII. On adissolution, one of the co-own- y47 parti-
ers of leaseholds cannot insist on a partition, ti"
but the whole must be sold.’ 644.

VIII. A partner using any portion of the ;

. . . VIII. Using
partnership stock, after a dissolution, for any stock after
purpose other than for the.winding up of the ‘
concern, will be treated as a trustee for the others, or
their representatives, of the profits he may have made

thereby. 645.

1 St. $668; Lindley, 179. St. 2 669. 3 St. 3 672.
“4 St. 3 671- 5 Wild v. Milne, 26 Beav. 504.
6 2 Sp. 208.* ;

 

* Smith, Manual Com. Law, Am. ed. [201], and note.
332° PARTNERSHIP.

After a dissolution, no interest is payable
aneras- between partners merely on the ground that
pee they have still remaining in the concern un-
equal shares of capital, on which during the continu-
ance of the partnership they were entitled, either by
express agreement or by their course of dealing, to
have interest credited, with or without rests.’ 646.
Ret IX. Real estate bought and held for the
eetne purposes of a partnership in trade, as a part
of the stock in trade, will be considered in Equity,
although not at Law, as personal estate to all intents
and purposes, whatever may be the form of the con-
veyance ; so as to be subject to all the equitable rights
and liabilities of the partners and their creditors; and
so as to pass to the personal representatives and distrib-
utees, on thé death of a partner, except, perhaps,
where there is a clear expression of the deceased
partner that it shall go to his heir-at-law beneficially,
or the partners have stipulated that freehoid lands
purchased by them shall descend to their heirs-at-law
beneficially? But where the land, and not the trade,
is the principal object, and the trade is merely ancillary
to the beneficial enjoyment of the land, or a part of it,

1 Barfield v. Loughborough, L. R. 8 Ch. Ap. 1.

2 Smith’s Merc. Law, 6th ed. 179; St. ¢ 674; Darby v. Darby,
3 Drew. 495; but see 2 Sp. 208-211.*

 

* Adams’s Eq. [245], [246], and note. But, except so far as re-
quired to pay firm debts or balances due partners, partnership
land retains the quality of real estate as to descent, dower, ete.
Shearer v. Shearer, 98 Mass. 107; Wilcox ». Wilcox, 13 Allen,
252, *
PARTNERSHIP. 333

this doctrine will not apply ; so that if one of the co-
owners dies intestate, his share in the land will pass to
his heir, and not to his legal personal representative.
647.

X. During the partnership, the joint credi- gaa
tors have no lien, until they have obtained a of joi P
judgment; and before they have issued and eee
registered process of execution, they cannot prevent the
partners from effectually transferring the property by
a bond fide alienation.? 648.

XI. The creditors of the partnership have th

is ‘ XI. Priority
aright to the payment of their debts out of a between

joint and

the partnership funds, before the private separate

creditors.

creditors of either of the partners; although,
at Law, this is generally disregarded. On the other
hand, the separate creditors of each partner are entitled
to be first paid out of the separate effects of their debtor,
before the partnership creditors can claim anything;
although, at Law, a joint creditor may proceed directly
against the separate estate.’ 649.

XII. The partnership creditors may in pa oen
the first instance proceed against the execu- tors may

proceed.

tors or administrators of a deceased partner, axainst
deceased

leaving them to their remedy over against partner's

1 Steward v. Blakeway, L. R. 6 Eq. 479; 4 Ch. Ap. 603.

2 See 2 Sp. 212; stat. 23 and 24 Vict. v. 38, s. 1.

3 St. 2 675; 2 Sp. 218; Ex parte Ruffin, and Ex parte Row-
landson, Tudor’s Lead. Cas. Merc. Law, 2d ed. 387, 407 ; Lodge ».
Prichard, 4 Gif. 294; 1D. J. & S. 610.*

 

* Murrill v. Neill, 8 How. Sup. Ct. 414.
334 PARTNERSHIP.

estate in ivi i .
estate in —_ the surviving partner, or vice vers@ ; because

instance. —_ every joint debt is joint and several.! 650.
Similar rate A similar rule applies to all cases where
applies to i 101

pee there is a joint loan to several persons who
debtors. are not partners.’ 651.

1 St. 2 676; 2 Sp. 213. 2 St. 2.676.
MARSHALLING OF SECURITIES. 335

CHAPTER VI.

OF CERTAIN SPECIAL ADJUSTMENTS IN THE CASE OF
DEBTORS AND CREDITORS.

SECTION I.

OF THE MARSHALLING OF SECURITIES.

WE have already had occasion to consider General
the marshalling of assets in cases of Admin- 9°"
istration, to which the present topic bears a close
analogy. The general doctrine is that if a creditor has
a lien on or interest in two funds belonging to one per-
son, and another creditor has a lien on or interest in
one only of the funds, and the claims of both could
not be satisfied if the former were to resort to the fund
in which alone the latter is interested; there the latter
creditor can, in Equity, compel the former to resort to
the other fund in the first instance for satisfaction, un-
less that would operate to the prejudice of the party en-
titled to the double fund or the common debtor. 652.

1 St. 2 633, 642; 2 Sp. 884; 2 Lead. Cas. Eq., 2d ed. 79, et seq.*

 

* See also American notes (for the doctrine prevailing in the
different States), Aldrich v. Cooper, 2 White & Tudor’s Lead. Cas.

Eq. 255, et seg.
336 RIGHTS OF CREDITORS AND SURETIES.

But although the different securities of
No mar- :
shalling one and the same common debtor will be

where one

of two joint i i i-
of two joint marshalled so as to satisfy the different credi

Iso a
saver tors, yet where two or more persons are

debtorof under a joint obligation to one creditor, and
creditor, one of them is also indebted to another
creditor, Equity will not compel the joint creditor to
satisfy his claim by proceeding against the joint debtor
who is only indebted to such joint creditor, so as to
leave the other joint debtor’s property for the several
creditor ; unless it appears that the joint debt ought in
fact to be paid by the debtor who is only indebted to
the joint creditor, or that there is some other super-
vening equity.’ For, in general, it would seem that
the several creditor can have no equity to counter-
balance the right of the debtor who is only jointly in-
debted to the joint creditor, to have a contribution
from the other joint debtor. 653.

SECTION II.

OF THE MUTUAL RIGHT TO THE BENEFIT OF SECURI-
TIES BETWEEN A CREDITOR AND SURETIES; AND OF
THE RELEASE OF SURETIES.

SURETIES are entitled to the benefit of all securities
which have been taken by any of their co-sureties to
indemnify themselves against their liability.” 654.

Courts of Equity have also held that on payment
by the sureties to the creditor of the debt due from the

" St. 3 642-5. 7 St. 2 499.
,

RIGHTS OF CREDITORS AND SURETIES. 337

principal, they are entitled to the full benefit of all
securities taken by the creditor, at or after the date of
the contracts of suretyship, whether the surety has
notice of thera or not, and whether of a legal or of an
equitable nature, which are collateral to or other than
the original principal security whereby the debt is evi-
denced, or which continue to exist, and do not get
back, on payment, to the principal debtor. And the
surety is so entitled, not only against the principal
debtor, but also against all persons claiming under
him; as, for instance, against a subsequent mort-
gagee of the debtor, with notice of a prior charge
paid off by the surety. Thus, if at the time when the
bond of the principal and surety is given, a mortgage
is made by the principal, to be an additional security
for the debt; there, if the surety pays the debt, he
will be entitled to an assignment of the mortgage, and
to stand in the place of the mortgagee; and as the
-mortgagor cannot get back his estate without a re-
conveyance, the assignment and security will remain
an effectual security in favor of the surety. But, until
recently, the surety could not obtain an assignment of
the bond itself; nor could he insist on an assignment
of a judgment, after he had paid off the debt on the
judgment.’ It is enacted, however, by the stat. 19
1 St. @ 499, 499b, 499¢, and note, 638; Pearl v. Deacon, 24
Beav. 186; 1 D. & J. 461: Pledge v. Buss, Johns. 663, and re-
marks there on Newton v. Chorlton, 10 Hare, 646; Goddard ».

White, 2 Gif. 449; Drew v. Lockett, 32 Beav. 499; Strange »,
Fooks, 4 Gif. 408.*
A

 

* Hull v. Sherwood, 59 Mo. 172; Holmes v. Day, 108 Mass. 103.
29
338 RIGHTS OF CREDITORS AND SURETIES.

and 20 Vict. c. 99,s. 5, that “every person who,
being a surety for the debt or duty of another, or being
liable with another for any debt or duty, shall pay
such debt, or perform such duty, shall be entitled to
have assigned to him, or to a trustee for him, every
judgment, specialty, or other security which shall be
held by the creditor, in respect of such debt or duty,
whether such judgment, specialty, or other security
shall or shall not be deemed at Law to have been.
satisfied by the payment of the debt or performance of
the duty’; and such person shall be entitled to stand
in the place of the creditor,” etc.’ 655.

On the other hand, if a surety has a counter bond
or security from the principal, the creditor will be en-
titled to the benefit.of it, and may in Equity reach
such security to satisfy his debt.? 656.

In Equity, whatever act is a discharge of the prin-
cipal, is also a discharge of the surety, though the
surety be not released at Law.’ 657.

Where a person becomes a surety upon the faith of
another also agreeing to enter into the obligation, the
former has a right to be relieved in Equity, on the
ground that the instrument has not been executed by
the latter 658.

11 Lead. Cas. Eq., 2d ed. 87-91.

2 St. 2 502, 638.

3 1 Pres. Shep. T. 71; Webb v. Hewitt, 3 K. & J. 438.
4 Evans v. Bremridge, 8 D. M. & G. 100.
SET-OFF OR COUNTER-CLAIM. 339

SECTION III.
OF SET-OFF OR COUNTER-CLAIM.

Ir is not proposed to go into this subject, regarded
as a matter of practice or procedure depending on
Statutes or Orders; but simply to notice a few points
relating to it, when viewed as a matter of Equity
Jurisprudence, before the Judicature Acts, by which
the relative remedies of persons having counter-claims
are materially affected. 659.

As to connected accounts of debts and
credits, the balance only was recoverable,
whether at Law or in Equity.’ — 660.

But it would seem that Courts of Equity, ‘pees
in virtue of their general jurisdiction, were dent debts

or demands.
accustomed to grant relief in all cases where
there was a mutual credit between the parties, founded
at the time on the existence of some debt due by the
crediting party to the other,’ or where peculiar equities
intervened.’ And where there were cross demands, of
such a nature that, if both were recoverable at Law,
they would be the subject of a set-off, if either of the
demands was a matter of equitable jurisdiction, the
set-off would be enforced in Equity.‘ But a set-off
was ordinarily allowed in Equity in those cases only

Connected
accounts,

* St. 3 1434.
2 St. 3 1435; Cavendish v. Geaves, 24 Beav. 163.
8 St. ¢ 1437 a, #-St. 4.14362.
340 SET-OFF OR. COUNTER-CLAIM.

where the party seeking the benefit of it could show
some equitable ground for being protected against the
demand of the other party. The mere existence of
cross demands would not be sufficient. A fortiori, a
Court of Equity would not interfere, on the ground of
an equitable set-off, to prevent a person from recover-
ing a sum awarded to him for damages for a breach of
contract, merely because there is an unsettled account
between him and the other party in respect to dealings
arising out of the same contract, where it could not be
assumed that the balance would be found to be in favor
of the latter.t 661.
Equity, following the Law, would notallow
Where one eee .
debt is joint a set-off of a joint debt against a separate
and the . os
other debt, or of a separate debt against a joint
separate. Bea . ‘
debt; unless there was a joint credit given
on account of’ the separate debt, or there were other
special circumstances to justify such an interposition.’
662.
. ; Except under special circumstances, Courts
emands in i >
Ae of Equity have never allowed cross demands
existing in different rights to be set the one
against the other. And therefore an executor and the
trustee of a legacy, who is also the residuary legatee,
and had become a creditor of a person who was the
1 St. @ 1486, and note; and see Phipps v. Child, 3 Drew. 709;
Fisher v. Baldwin, 11 Hare, 352; Jenner v. Morris, 1 Dr. & Sm.

334 ; Smee v. Baines, 29 Beav. 661.*
? St. ¢ 1437; Piercy v. Fynney, L. R. 12 Eq. 69.

 

* Green v. Darling, 5 Mason, 212 ; Hendrickson v. Hinckley,
17 How. Sup. Ct. 447.
SET-OFF OR COUNTER-CLAIM. 341

husband and administrator of a deceased legatee, was
not, in the absence of any special agreement, allowed
to set off his debt against the legacy to which the hus-
band, as such administrator, was entitled.’ And where
a oe of an intestate purchases part of the intes-

te’s goods from his administrator, the creditor cannot
off the sum at which he purchased the goods against
a debt due to him from the intestate at the time of his
decease.” 663.

1 Freeman v. Lomas, 9 Hare, 109; Middleton v. EO L. R.
20 Eq. 29, 515.
? Lambarde v. Older, 17 Beav. 542.
342 MESNE PROFITS.

CHAPTER VII.
OF CERTAIN MISCELLANEOUS CASES OF ACCOUNT.

I. Iv is the duty of an agent to keep regu-
lar accounts and vouchers.’ And if he does
not, he will not be allowed the compensation which
would otherwise belong to his agency. And if he
mixes up his principal’s property with his own, he is
put to the necessity of showing clearly what part of the
property belongs to him; and so far as he is unable to
do this, it is treated, both at Law and in Equity, as
the property of the principal.’ 664.

Fiswesne II. In the ordinary case of mesne profits,
proats: where aid was clearly afforded at Law, Courts
of Equity will not interpose.* Wherever relief is given
in Equity it will be found that there is some peculiar
equitable ground for interference; such as fraud, acci-
dent, or mistake, the want of a discovery, some im-
pediment at Law, the existence of a constructive trust,

I. Agency.

or the necessity of interposing to prevent multiplicity

of suits. 665.

1 See remarks of Sir John Romilly, M. R., in Stainton v. The
Carron Company, 24 Beav. 353.

2 St. 2 468. 3 St. @ 511. 4 St. 2 509-514.
WASTE—TITHES AND MODUSES.

III. In cases of legal waste, relief is ordi-
narily at Law.’ If the waste is equitable
only, of course a remedy lies in Equity.(a)?

IV. Matters of account also arise in re-
gard to tithes and moduses. Wherever the
right to tithe is clearly established, an ac-

343

III. Waste.

666.

IV. Tithes
and
moduses:

count is consequent. But if the right is disputed, it
must first be established, before an account will be de-
creed. For some years past, however, tithes have
been commuted for tithe rent charges, under the stat.
6 and 7 Will. IV, c. 47, and subsequent Acts. 667.

1 St. 2 515-518. 2 St. 3 515, note. 3 St. 2 519.

 

(a) On this subject, see the Judicature Act, 1873 (36 and 37

Vict. c. 66), s. 25 (3).
344 DAMAGES AND COMPENSATION.

CHAPTER VIII.
OF DAMAGES AND COMPENSATION.

< git zie I. Ir would seem that prior to the stat.
astodama- 94 and 22 Vict. c. 27, damages or compen-

ges or com-

pensali™ sation were decreed in favor of a plaintiff in

oe Equity, only as incident to other relief, sought
by the bill and actually granted, or where there was
no adequate remedy at Law, or where some peculiar

equities intervened.’ But by that statute
Stat. 21 and ¥ o
22 Viet. ©. (s. 1) it was enacted, that “in all cases in

which the Court of Chancery has jurisdiction
to entertain an application for an injunction against a
. breach of any covenant, contract, or agreement, or
against the commission or continuance of any wrongful
act, or for the specific performance of any covenant,
contract, or agreement, it shall be lawful for the same
Court, if it shall think fit, to award damages to the
party injured, either in addition to or in substitution
for such injunction or specific performance; and such
damages may be assessed in such manner as the Court
shall direct.” 668.

1 St. 2724, 798, 799.

2 Johnson v. Wyatt, 2D. J. & S. 18; Middleton v. Greenwood,
Id. 142.
DAMAGES AND COMPENSATION, 345:

II. Compensation is often given to a de-
fendant on the principle that he who seeks ssiton ta”
equity must do equity. Thus, if a plaintiff a
in Equity seeks the aid of the Court to enforce his
title to land against an innocent person, who has made
improvements on it, supposing himself to be the abso-
lute owner thereof, that aid ‘will be given only on the
terms that the plaintiff shall make a compensation to
such innocent person proportionate to the benefit which
will be received from those improvements.’ 669.

III. With regard to penalties and forfei-

ee III. Juris-
tures for breach of conditions and covenants, diction to

there was originally no relief but in Equity ; aga
and although, by several statutes, relief may tnd for
now be had at Law in a great variety of

cases, yet the original jurisdiction in Equity still re-
mains? 670.

Where a penalty or forfeiture appears to ance
have been inserted merely to secure the per- relief tn
formance of some act, or the enjoyment of
some right or benefit, Equity regards the performance
of such act, or the enjoyment of such right or benefit,
as the substantial object of the party interested therein ;
and if a compensation can be made for the non-per-

formance or want of enjoyment thereof, it will relieve
1 St. 2 799a.*

2 St. @ 1801; Peachy v. Duke of Somerset, 2 Lead. Cas. Eyq,,
2d ed. 895, et seq. a

 

* Statutes in favor of occupying claimants who have made im-
provements in good faith, are now in existence in most of the
States. St. Eq. Jur. 3 799a, note.
346 DAMAGES AND COMPENSATION.

against the penalty or forfeiture, by simply decreeing
a compensation in lieu of the same, proportionate to
the damage really sustained.’ 671.

Gee ae compensation can be made, and the
comprnsa- penalty is to secure the mere payment of a
cases. sum of money, the party will be relieved on
paying the principal and’interest. If it is to secure
the performance of some other act, the Court will as-
certain the amount of damages, and grant relief on
payment thereof? 672.

; Although it may be urged that, in such
iiustly cases as these, it was the folly of the party to
granted. make such a stipulation, yet the folly of one
man cannot authorize the other to commit an act of
gross oppression, or oblige the former to suffer a loss
wholly disproportionate to the injury received.? And,
although, in some cases, from peculiar circumstances,
which cannot be taken into account, the compensation
awarded may not amount to an adequate compensation,
yet that is no solid objection against the interference of
Courts of Equity; for a great injury is always pre-
vented by such interference; whereas the mischief
caused thereby is only occasional ; and all general rules
must work occasional mischiefs.t 673.

A stipulation, that if instalments be not punctually
paid, the whole sum shall be payable at once, is not
to be deemed of the nature of a penalty.’ Nor isa

1 See St. 2 1314, 1320. 2 St. 3 1314. 3 St. 3.1316.
* St. 2 1316, note. 5 Sterne v. Beck, 1 D. J. & 8. 595.*

 

* St. Eq. Jur. 3 1314, note. So also reasonable fines of a build-
ing society will not be relieved against in Equity, and are not
DAMAGES AND COMPENSATION. 347

reservation of a right to have full payment of money
actually due at the date of an existing contract, if there
should be a failure to pay a smaller sum on a day
certain.’ 674,

IV. Courts of Equity will not relieve in ,, y,
cases of liquidated damages, which occur “lief

against

i ' liquidated
where the parties have agreed that in case }avilate

one party shall do or omit a certain act, the {r°reant”
other party shall receive a certain sum, as ““*™

the just amount of the damage sustained by such act
or omission, and where the sum so agreed to be paid
is not grossly disproportionate to the nature or extent
of the injury. If the sum is so disproportionate, and
it is in reality penal, although it may assume the dis-
guise of liquidated damages, a Court of Equity will
treat it as a penalty, and relieve against it accord-
ingly? 675.

V. In the case of a breach of a covenant

to pay rent, Equity will relieve, even where ee

the term is gone at Law by reason of the SS aoreeeh
landlord’s entry by virtue of a clause of re- or condi m
entry; for that is deemed to be a mere se-  ~

curity for the payment of the rent. But no relief will
be granted in Equity in case of forfeiture for the
breach of any covenant other than a covenant to pay
rent, unless on the ground of accident, mistake, or

1 Thompson v. Hudson, L. R. 4 H. L. 1.
2 St. 3 1318. 3 St. ¢ 1315, and note to 2 1328.

 

within the rule that Equity will not aid to enforce a penalty.
Shannon v. Howard, etc., Ass’n., 36 Md. 383.
348 DAMAGES AND COMPENSATION.

fraud ; for it has been considered that even where the
damages are capable of being ascertained, the jurisdic-
tion of Equity in giving relief is a dangerous jurisdic-
tion, and rarely works a real compensation.'(a) 676.
a apel tee VI. And Equity will not mitigate any
nor granted penalty or a forfeiture imposed by Statute ;

against

sa\ine or for that would be in contravention of the

forfeitures. direct expression of the legislative will.’ 677.

VII. On the other hand, it is a uniform

penalty or rule in Equity never. to enforce either a

never ene penalty or a forfeiture. Therefore Courts of
forced. : 5 “75 . :

Equity will never aid in the diyesting of an

estate, for a breach of a covenant, on a condition sub-

sequent.? 678.

1 St. 2 1820-6; Gregory v. Wilson, 9 Hare, 689. The margi-
nal note, as to “accidental” neglect, appears to be wrong.

2 St. @ 1826.

3 St. @ 1819; and on the subject of enforcing a penalty, see
Thompson v. Hudson, L. R. 2 Eq. 612; 2 Ch. Ap. 255; 4 H.
L. 1*

 

(a) See the stat. 22 and 23 Vict. cu. 35, ss. 4-6, and 23 and 24
Vict. c. 126, 5. 2, as to relief against forfeiture for breach of a
covenant or condition to insure.

* St. Eq. Jur. 21314, note; Powell v. Redfield, 4 Blatch. C. C. 45.
Equity follows and enforces the Law, and does not contradict and

contravene an express rule of Law or Statute. St. Eq. Jur. @
1326 a, note.
‘ELECTION. 349

CHAPTER IX.
OF ELECTION.

ELEcTIon is the choosing between two
rights, by a person who derives one of them
under an instrument in which a clear intention appears
that he should not enjoy both. 679.

The instances in which Courts of Law
have put a person to his election, are cases donee”
of title which are technically incapable of “ ae
simultaneous assertion, by reason of their inconsistency ;
as in the case of a contemporaneous estate for life and
in tail in the same land, or a claim of a tenant under
and against his landlord; or a claim to dower both in
the land taken and in the land given in exchange.
680.

The doctrine of election arises in Equity,
in cases where a grantor, or, more commonly, pon arses
a testator, gives away, either knowingly, or i
by mistake, that in which he has no interest, or the
whole of that in which another person besides himself
has an interest, and in the same instrument makes a
gift to the owner of the property so given away, or to
the person entitled to such interest. In such cases the
owner of such property, or the person entitled to such

Definition.
350 ELECTION.

interest, cannot both take the gift and retain his own
property or interest; but if he takes the gift, he must
resign his own property or interest. On the other
hand, if he elects to hold his own property or interest,
or, as the phrase is, if he elects against the instrument,
he cannot have the gift; or at least he cannot have the
entire gift without compensating the party whom he
has disappointed by electing to take his own property.
Equity, in not suffering the disposition by which such
gift is made to inure to the benefit of the person so
electing against the instrument, will not render that
disposition inoperative, but will make it the means of
effectuating that intention of the author of the instru-
ment which such person has frustrated by so electing
to retain his own property or interest ; for Equity will
treat such gift, or at least a part of it, as a trust in the
donee or devisee, the person so electing, for the benefit
of the party disappointed by such person’s refusing to
give up his own property or interest.’ Indeed, the
doctrine of election can never be applied where an

1 See St. 2 1077, note, and 1081-4, 1086, 1088, 1089, 1093; 2
Sp. 586, 587, 588, 601-4; Noys v. Mordaunt, and Streatfield ».
Streatfield, 1 Lead. Cas. Eq., 2d ed. 271, et seqg.; Swan v. Holmes,
19 Beav. 471; Wintour v. Clifton, 21 Beav. 447; 8D. M. & G.
641; Stephens v. Stephens, 3 Drew. 697; Usticke v. Peters, 4 K.
& J. 487; Anderson v. Abbott, 23 Beav. 457; Grosvenor v. Durs-
ton, 25 Beav. 97; Fitzsimons v. Fitzsimons, 28 Beay. 417; Hony-
wood v. Forster (No. 2), 30 Beav. 14; Howells v. Jenkins, 2
Johns. & H. 706; 1D. J. & 8. 617; Whitley v. Whitley, 31 Beav.
173; Miller x, Thurgood, 33 Beav. 496; Grissel v. Swinhoe, L. R.
7 Eq. 291; Coutts v. Acworth, L. R. 9 Eq. 519 ; Cooper v. Cooper,
L. R. 6 Ch. Ap. 15; Wilkinson v. Dent, L.. R. 6 Ch. Ap. 339;
ELECTION. 351

election is made contrary to the instrument, unless the
interest that would pass by it is of that freely dispo-
sable nature that it can be laid hold of to compensate
the party who suffers by the exercise of such election
against the instrument. Thus, where there is a fund
subject to the appointment of a father amongst his
children, and the father appoints a part to some of his
children, and the other part to persons not objects of
the power; any child who is an appointee may both
take his appointed share and also claim his share of
the improperly appointed portion, as in default of ap-
_pointment. And an appointee, who is also a legatee,
is not bound to elect between his legacy and giving
effect to a trust ingrafted on the appointment in favor
of persons not objects of the power, but such trust is
void. But if there is a power to appoint to two, and
the donee of the power appoints to one only and gives

Middleton v. Windross, L. R. 16 Eq. 212; Rogers v. Jones, L. R.
3 Ch. D. 688.*

 

* The principle of election is recognized in this country, and
has been applied under a great variety of circumstances. It rests
upon the equitable ground that no man can be permitted to claim
inconsistent rights with regard to the same subject, and that one
who claims an interest under an instrument is bound to give full
effect to that instrument as far as he can; a person cannot accept
and reject the same instrument, or, having availed himself of it as
to a part, defeat its provisions in any other part; and this applies
to deeds, wills, and all other instruments whatsoever. Streatfield
v. Streatfield, 1 White & Tudor’s Lead. Cas. Eq., 4th Am. ed. 376;
notes by American ed.; also Wilbanks ». Wilbanks, 18 Ill. 19;
Walters v. Howard, 1 Md. Ch. 112.
352 ELECTION.
a legacy to the other, he cannot claim the legacy and
also dispute the validity of the appointment.’ 681.

Prima facie, it is not to be supposed, nor must it
be proved by extrinsic evidence, that a testator dis-
poses of that which is not his own, so as to raise a case
of election. It must appear on the will itself, by plain
demonstration or by necessary implication.’ 682.

The doctrine of election applies even where, in a will
not within the Wills Act, 1 Vict. c. 26, a devise of an
estate is made to the testator’s heir, and the heir, ac-
cording to the old rule, takes such estate by descent,
and not by purchase, and, by the same will, the tes-
tator devises to another person an estate belonging to
the heir, over which the testator had no disposing
power. And the doctrine is equally applied to all
interests, whether immediate or remote, vested or con-
tingent, of value or of no value, and whether in real
or personal estate.* 683.

The same doctrine of election also arises in cases
where it was apparently a testator’s intention to dis-
pose of all the property he might have at the time of
his death, and the heir, who is a devisee under the will,
claims property, which was purchased subsequently to

1 2 Sp. 520; In re Fowler’s Trust, 27 Beav. 362; Woolridge ».
Woolridge, Johns. 63; Churchill v. Churchill, L. R. 5 Eq. 44.

2 2 Sp. 592, 593, 595; Wintour »v. Clifton, 21 Beav. 447; 8 D.
M. & G. 641; Miller v, Thurgood, 33 Beav. 496.%@

3 St. 2 1094; 2 Sp. 589; Schroder v. Schroder, Kay, 578; Hance

v. Truwhitt, 2 Johns. & H. 216.
4 St. 2 1096; 2 Sp. 588.

 

* St. Eq. Jur. 3 1097.
ELECTION. 353

the will, and which consequently, under the old law,
did not pass by the will, but was intended to pass to
another person under the general words of the will.!
684.

And where a testator devises all the residue of his
real estate situate in any part of the United Kingdom
or elsewhere, and he has real estate in Scotland as well
as in England, and his heir takes the Scotch lands, by
descent, from want of an instrument inter vivos from
which the testamentary instrument might derive its
effect, the heir will be put to his election.? 685.

It has been held that the doctrine of election does
not apply to an instrument which was valid at the
time of execution as to all the property comprised in
it, but was rendered inoperative as to some of the
property by subsequent events.’ 686.

According to the preponderance of authority and
principle, a person electing against a will does not for-
feit the whole of the benefit intended for him, where
the value of the gift exceeds that of his own property
or interest; but he is only obliged to compensate in
value the claimant whom he has disappointed by re-
fusing to give up his own property or interest.* For
a Court of Equity interfering to control his legal rights
for the purpose of executing the intention of the tes-
tator, is justified in its interference so far only as that
purpose requifes.” 687.

1 §t, 21094; Schroder v. Schroder, Kay, 578.

2 Orrell v. Orrell, L. R. 6 Ch. Ap. 302.

* Blaiklock v. Grindle, L. R. 7 Eq. 215.

* St. ¢ 1085; 2 Sp. 601 -4. 5 St. 2 1085, note.
30
354 ELECTION.

A person may decline one benefit given
ae him by a will, such as a legacy charged with
cr portion, without being precluded from
taking another benefit by the same will ; unless it is
fairly inferable from the nature of the different bene-
fits, that he should either take all or reject all.’ 688.

de Election may also arise where a person
fe Suet attempts to claim both under and in oppo-
seitiement- sition to a settlement. It is a rule that a
person will not be allowed to take under and against
the same instrument.’ 689.
evens The party is not bound to make an elec-
ne iie. tion till all the circumstances are known.

norance of And if he should make a choice in ignorance
stances. of the real state of the funds, or under a

misconception of the extent of the claims on the fund .
elected by him, it will not be conclusive on him. And

che is entitled, in order to make an election, to have a

discovery, and all the accounts taken, in order to as-

certain the real state of the fund.*? 690. _

Election by conduct must be by a person who has
positive information as to his rights to the property,
and with this knowledge really means to give that
property up.“ 691.

’ St. 2 1081; see 2 Sp. 591. >

* Anderson v. Abbott, 23 Beav. 457; Mosley v. Ward, 29 Beay.
407 ; Brown v. Brown, L. R. 2 Eq. 485; Codrington v. Lindsay,
L. BR. 8 Ch. Ap. 578, 593; 7 H. L. 854.

5 St. 21098; 2 Sp. 598; Wintour ». Clifton, 21 Beav. 447.

* Wilson v. Thornbury, L. R..10 Ch. Ap. 289.
ELECTION. 355

An election may be presumed from a long fieaca
acquiescence or from other circumstances,’ Presumed.
Remaining in possession of two estates held under
titles not consistent with each other, affords no conclu-
sive proof of the kind? 692.

The doctrine of election is not of the nature of a
positive rule of law which a person is bound to know.
And therefore in order to infer an election, it is neces-
sary to show that the person who ought to elect was
aware of the doctrine.’ 693.

The doctrine of election is not applied in ;
the case of creditors. They may take the iio
benefit of a devise for payment of debts, ernrgen
and also enforce their legal claim against other funds
disposed of by the will; for a creditor claims not as a
mere volunteer, but for a valuable consideration, and
ex debito justitie.* 694.

Where a testator gives a much larger prop- gist under
erty to one child, under the mistaken impres- ™'*****
sion that such child did not take under the testator’s
marriage settlement, he is not bound to elect between
his interest under the settlement and the gift by will.
695.

18t. 2 1097; 2 Sp. 598-600 ; Worthington v. Wiginton, 20
Beav. 67.

2 Spread v. Morgan, 11 H. L. Cas. 588.

3 Spread v. Morgan, 11 H. L. Cas. 588.

* St. 21092; 2 Sp. 592.

5 Box v. Barrett, L. R. 3 Eq. 244.*

 

* St. Eq. Jur. 2 1086, note.
356 ELECTION.

Where the person bound to elect labors
under any disability, as infancy or coverture,
the Court will consider whether it will be most bene-
ficial for such person'to take under or against the will
or deed, and will decree accordingly.’ 696.
ae Where a person, who had a right of elec-

having sep- tion, dies intestate, without having exercised
arate rights . * .

ofelection it, each of his or her next of kin has a sepa-
as next of - C .

kin of a rate right of election; so that neither the
erson who 7 eoeds

ied with- election of the majority nor of the heir or
out electi.ig.

administrator will bind the others.” 697.

1 2 Sp. 587.
2 Fytche v, Fytche, L. R. 7 Eq. 494.

Disability.
SATISFACTION. 357

CHAPTER X.
OF SATISFACTION.

SATISFACTION may be defined to be the
making of a donation with the express or
implied intention that it shall be taken as an extin-
guishment of some claim which the donee has upon the
donor. 698.

Equitable questions of satisfaction usually |
arise in three classes of cases. 699. maou dt

I. In case of portions secured by a mar-
riage settlement. 700.

II. In cases of portions given by a will, and an ad--
vancement of the donee afterwards in he testator’s
lifetime. 701.

III. In cases of legacies to creditors.” 702.

In all these classes of cases where the sat-

: . . F Satisfaction
isfaction is a matter of presumption, that pre- resting on

i ; to atnat a EM.
sumption may be rebutted, either by intrinsic tion may
evidence derived from the will itself, or by
extrinsic evidence, as by declarations of the testator or

written papers.’ 703.

Definition.

1 See St. 3 1099, 1101, 1106; Ex parte Pye, 2 Lead. Cas. Eq.,
2d ‘ed. 303, ef seq.; Samuel v. Ward, 22 Beav. 347 ; and references

infra.
2 Sb. 2 1109. 3 Gt. ¢ 1102; 2Sp. 441-450.
358 SATISFACTION.

i tate I. Where a portion or provision is secured
podty toa child by a marriage settlement or other-
settlement. vise, and the parent or person standing in
loco parentis—that is, a person meaning to stand in the
place of a parent as regards providing for a relation’s
child—afterwards by will gives the same child a legacy,
whether particular or residuary, without expressly de-
claring it to be in satisfaction of such portion or pro-
vision, in such case, if the legacy is substantially the
same in its value, in its nature, in time of payment, in
certainty, and in benefit, with the portion or provision,
and if it is not given for a different purpose, it will, in
the absence of evidence to the contrary, be deemed a
full satisfaction, as Courts of Equity now incline against
double portions. If the legacy is less in amount than
the portion or provision, or if it is payable at a differ-
ent period, then (looking to the weight of authority) it
may be deemed a satisfaction pro tanto, or in full, ac-
cording to the circumstances.’ 704.

In the case of a provision by will, followed by a
provision by deed, the first being revocable, there is no
difficulty in the way of the second provision taking

> St. ¢ 1108, 1104, 1109, 1110; 2 Sp. 427-480, 432, 433, 438-
440; Lady E. Thynne v. Earl of Glengall, 2 H. L. Cas. 153; Pin-
chin v. Simms, 30 Beav. 119; Charlton v. West, 30 Beav. 124;
Coventry v. Chichester, 2 Hem. & M. 149; 2D. J. &S. 336; s.
c. nom. Lord Chichester v. Coventry, L. R. 2 H. L. 71; Campbell
v. Campbell, L. R. 1 Eq. 383; McCarogher v. Whieldon, L. R. 3
Eq. 236; Paget v. Grenfell, L. R. 6 Eq. 7.*

 

* Langdon »v. Astor’s Ex’rs., 3 Duer. 16 N. Y. 9; Sims v. Sims,
2 Stockton ‘Ch::158; Roberts v. Weatherford, 10 Ala. 72.
SATISFACTION, 359

effect in lieu of the first; and no election on the part
of the person to be benefited is required. And if the
second provision is construed to be substitutional, it is
properly termed an ademption. 705.

On the other hand, in the case of a provision by
deed, followed by a provision by will, the first being
not revocable, and actual rights being conferred thereby,
it is more natural in one respect to regard the second
provision as additional rather than as substitutional,
and the application of the presumption against double
portions is consequently more difficult; and indeed no
substitutional effect can be given to the will, except by
the election of the person intended to be benefited.
706.

Where by a covenant, to take effect on the death of
the settlor, a portion is settled on the husband for life,
and then on his wife and children, and an absolute
gift of other property is afterwards made by the settlor
by will in favor of the husband, it may be a satisfac-
tion of the husband’s life interest, under the settle-.
ment, but not of the interest of the wife and children.’
707.

II. Where a parent or other person stand- 41 Asto
ing in loco sparentis bequeaths a legacy, fete by will
whether particular or residuary, to a child to “* ce
whom he stands in that relation, and then by an act
inter vivos, makes a provision for the same child, of
equal or greater amount, of equal certainty, and sub-
stantially the same in kind and in degree of benefit,

1 Lord Chichester v. Coventry, L. R. 2 H. L. 71.
2 McCarogher v: Whieldon, L, R. 3 Eq. 236.
360 SATISFACTION.

without expressing it to be in lieu of the legacy, or
for other objects than those for which the legacy was
given, in such case, in the absence of evidence to the
contrary, it will be deemed a satisfaction or ademption
of the lezacy. And if the provision inter vivos is less
than the legacy, it will be deemed an ademption pro
tanto.’ 708.

A legacy may be adeemed by a gift, though not
‘made on marriage or any other occasion having a
special reference to the donee.* But a bequest to a
daughter is not adeemed by a gift to the husband ; nor
by an advance to her, on her marriage, for her outfit.’
709.
Noademp- And this doctrine of the constructive
[ou festo ademption of legacies has never been applied
strangers. to legacies to wives or to mere strangers,
unless under some peculiar circumstances; as where
the legacy is bequeathed for a particular purpose, and
a portion is afterwards given by the testator, by an act
inter vivos, exactly for the same purpose, and for none-

1 St. @ 1111, and note, and 1103-1105, 1112, 1113, 1115; 2 Sp.
429, 432-5, 488-440; Hopwood v. Hopwood, 22 Beav. 488; 7 H.
L. Cas. 728; Schofield v. Heap, 27 Beav. 93; Beckton v. Barton,
27 Beav. 98; Montefiore v. Guedalla, 1 D. F. & J. 98; Watson v.
Watson, 33 Beav. 575; Phillips v. Phillips, 34 Beav. 19; Dawson
v. Dawson, L. R. 4 Eq. 504; Nevin v. Drysdale, L. R. 4 Eq. 517;
Cooper v. Macdonaffl, L. R. 16 Eq. 258 ; Stevenson v. Masson, L.
R. 17 Eq. 78.*

2 Leighton v. Leighton, L. R. 18 Eq. 458.

3 Ravenscroft v. Jones, 32 Beav. 669.

 

* Sims v. Sims, 2 Stockton Ch. 158.
SATISFACTION. 361

other.'' Indeed, in the case of strangers, the onus
probandi is upon those who contend that the two pro-
visions are to be considered but as one; whereas in the
case of children, the onus probandi is on those who con-
tend for the double provision.” The term “strangers”
here includes all who are not legitimate children of the
donor, or children to whom he has placed himself in”
loco parentis.? 710.

The ground of the distinction would seem
to be, that a legacy by a parent, or by a ce autho:
person in loco parentis, is presumed to be “°”
intended as a portion, and that it may be fairly re-
garded as the utmost amount that the testator, from a
sense of duty or from parental or quasi parental affec-
tion, considered himself able and called upon to spare
for the legatee, consistently with the accomplishment
of other necessary purposes; and that if he afterwards
advances the same ‘amount to the same child, it is
almost certain, or at all events most likely, that he did
so in accomplishment of the same intention of provid-
ing for such child to the same extent; especially where
the necessity of making a provision has arisen in his
lifetime, as where the provision is made on the mar-
riage of the child. But in the case of a legacy to a
stranger, the legacy is a mere arbitrary gift, uncon-

1 St. 2 1100, note, 1117, 1118; 2 Sp. 430; Pankhurst v. Howell,
L. BR. 6 Ch. Ap. 136.*
2 2 Sp. 430. 3 St. 21116; 2 Sp. 429.

 

* It has been applied to an uncle. Gills’s Estate, 1 Pars. Eq
139. And to a brother, Richards v, Humphreys, 15 Pick. 133.

31
362 SATISFACTION.

nected with considerations of duty or parental or quasi
parental affection ; and there is as much reason, in
such cases, why the testator should choose to make an
additional gift, as there was for his making the origi-
nal gift. 711.

ILI. A legacy given to a creditor, if it is
“Togasien t0 of an amount equal to or greater than the
os debt, and in other respects equally beneficial,
will, in general, in the absence of all countervailing
circumstances, be deemed to be a satisfaction of the
debt, on the principle that a testator shall be presumed
to be just before he is generous.’ But this principle
has no application to cases where the testator expressly
directs his debts to be paid, and his assets are sufficient
to pay both debts and legacies.. And the Court leans
very strongly against holding the legacy to be a satis-
faction. Hence the rule is not allowed to prevail
where the legacy is of less amount than the debt, even
as a satisfaction pro tanto, unless the creditor assented,
in the debtor’s lifetime, to such an arrangement; nor
where there is a difference in the time of payment of
the debt and of the legacy; nor where they are of a
different, nature, as to the subject-matter, or as to the
interest. therein; nor where a particular motive is as-
signed for the gift; nor where the debt is contracted
subsequently to the will; nor where the legacy is con-
tingent or uncertain; nor where the bequest is of a

1 St. ¢ 1119, 1120; 2 Sp. 605-7; Edmunds ». Low, 3 K. & J.
318; Shadbolt v. Vanderplank, 29 Beav. 405.*

 

* See also Parker v. Coburn, 10 Allen, 82.
SATISFACTION. ° 363

residue; nor where the debt is a negotiable security ;
nor where the debt is on an open and running account,
so that the testator might not know whether he owed
anything. And as to a debt strictly so called, there is
no difference whether it is a debt due to a stranger or
to a wife or achild 712.

IV. On the other hand, where a creditor fae ieee
leaves a legacy to his adbéon: and either takes legacies to
notice of the debt, or leaves his intention
doubtful, Courts of Equity will not deem the legacy
as either necessarily or primd facie manifesting an in-
tention to release or extinguish the debt; but they will
require some evidence, either on the face of the will,
or aliwnde, to establish such an intention.? For, if the
legacy is less than the debt, it would clearly be a posi-
tive injury to the creditor to construe the legacy a re-
lease of the debt; and even if the legacy is more than
the debt, it does not follow that because the testator
has manifested his bounty towards the debtor in that
respect, he intends the debtor to have another benefit
which has no necessary connection with the former.
Where the testator does not mention the debt, but
gives the debtor a legacy of equal or greater amount,
he tltereby benefits the debtor to at least the same ex-
tent, by giving him the means of paying the debt, as

1 St. 2 1108, 1122; 2 Sp. 605-8; Jefferies v. Mitchell, 20 Beav.
15; Hassell ». Hawkins, 4 Drew. 468; Cole v. Willard, 25 Beav.
568; Hammond ». Smith, 33 Beav. 452; Fairer v. Park, L. R. 3

Ch. D. 309.*
2 St. g 1123.

 

* Gilliam v. Brown, 48 Miss. 641 ; Strong +. Williams, 12 Mass.
391." cs es
364 . SATISFACTION.

if he had directly forgiven the debt, but had given the
debtor nothing, or nothing but the overplus; and his
reason for thus giving the debtor the means of paying
the debt, without alluding to the debt, may have been
one of kind consideration towards the debtor, namely,
in order that none but the executor might be aware of
the debt. 713.

V. Where an annuity to the separate use
of a married woman is charged on an estate,
the gift of an annuity to her generally, and charged
upon property of a different nature, though to the same
amount and payable on the same days, is not a satis-
faction! And where a person executes a deed by which
he gives annuities to certain persons, and then executes
another deed by which he gives other annuities to
those persons, there is no presumption that the latter
were intended to be a substitute for the former, especi-
ally where the annuities given by the second déed are
of less amount, or the first deed contains a power of
revocation which is not exercised by the secofid deed.’
Covenantto 0 Where there is a covenant on marriage to
settle lands. settle specific lands, it will not ordinarily be
satisfied by suffering other lands of equal value to de-
Covenantto Scend.® And an appointment of a sum by
bequeath. will is not a satisfaction of a covenant to be-
queath a like sum.* 714.

1 2 Sp. 609.

2 Palmer v. Newell, 20 Beay. 32; 8D, M. & G. 74.

% 2 Sp. 610.
4 Graham v. Wickham (No. 1), 31 Beav. 447; 1 D. J. & 8.474.*

V. Annuity.

 

* The general rule is that where legacies are given by different
instruments, the presumption is, prima facie, that two legacies are
PARTITION. 335

CHAPTER XI.

OF PARTITION; OF SETTLEMENT OF BOUNDARIES ;
AND OF ASSIGNMENT OF DOWER.

SECTION I.
OF PARTITION.(a)

THE mode in which a partition is effected, ypoao of
is by first ascertaining the rights of the sev- Partition.
eral parties interested, and then issuing a commission
to make the partition; and on the return of the com-
mission and confirmation of the return by the Court,
the partition is finally completed by mutual convey-
ances of the lots made to the several parties.!. For-

1 St. 2 650; and on this subject see Agar v. Fairfax, 2 Lead.
Cas. Eq., 2d ed. 374, et seg.*

 

intended, and that the last is not a mere repetition of the former ;
nor will the fact that each legacy is for the same amount in money,
operate to repel the presumption that they are cumulative, unless
there are other circumstances to repel it. St. Eq. Jur. 3 1128a,
and note.

(a) See stat. 31 and 32 Vict. c. 40, and 89 and 40 Vict. c. 17, at
the end of the book.

* The ground of equitable jurisdiction, as said by Lord Eldon in
Agar v. Fairfax, arises “in the extreme difficulty attending the
process of partition at law; where the plaintiff must prove his
title, as he declares, and also the titles of the defendants, and judg-
ment is given for partition according to the respective titles so
proved.”
366 PARTITION.

merly, if the conveyances could not be executed on
account of infancy, or on account of an executory in-
terest, the decree could only put the parties in posses-
sion, and secure them in the enjoyment of the parts
allotted to them, until conveyances could be made.
But by the stat. 13 and 14 Vict. c. 60, s. 30, in a de-
cree for partition of lands, it shall be lawful for the
Court to declare that any of the parties to the suit
wherein such decree is made are trustees of such lands
or any part thereof, or to declare concerning the in-
terests of unborn persons who might claim under any
party to the suit, or under the will or voluntary settle-
ment of any person deceased who was during his life-
time a party to the contract or transaction concerning
which such decree is made, that such interests of un-
born persons are the interests of persons, who, upon
coming into existence, would be trustees within the
meaning of the Act; and thereupon it shall be lawful
for the Lord Chancellor, or the Court of Chancery, as
the case may be, to make such order or orders as to
the estates, rights, and interests of such persons, born
or unborn, as the Court or the Lord Chancellor might,
under the provisions of the Act, make concerning the
estates, rights, and interests of trustees born or un-
born. 715.

eee As a partition is completed by mutual
beshown. conveyances, it is essential to show a title;
and if there is anything suspicious in the plaintiff’s
title, the Court will leave him to Law, unless it is a
case of equitable title.” 716.

 

1 St. 2 652. * St. 2 653.
PARTITION. 367

The Court will decree a partition even in
a suit by or against persons who are only pereeer
tenants for life or years; and the decree will havelicnited
be binding on all whom they virtually rep- Pa
resent, but not on other persons. Thus, a decree in a
suit by or against a tenant for life, will be binding on
the remainderman who is not in esse at the time, on
the ground of virtual representation, if the Court is of
opinion that it will be for the benefit of such remain-
derman that the agreement should be carried into effect,
either as it stands, or with such variations as the Court
may think proper. 717.

But on the other hand, a reversioner cannot main-
tain a suit for a partition.? 718.

The Court will frequently decree a pecu-
niary compensation to one, in order to make cae
up his share to its proper value, where the pee
estate cannot conveniently be divided into equal parts.’
And instead of dividing each of several distinct es-
tates, the whole of one estate is frequently allotted to
one person, and the whole of another estate to another
person, and a compensation is directed to be made to
the person to whom the less valuable estate is allotted.*
So, to one who has made improvements on the estate,
the property on which the improvements have been
made will be assigned, or a compensation will be given
him. And care will be taken to assign to the parties
such portions of the estate as will best accommodate

" St. 3 656, 656 a.
2 Evans v. Bagshaw, L. R. 5 Ch. Ap. 340.
9 St. 3 654. * St. 3 557.
368 BOUNDARIES.

them; and the Court will act according to its own no-
tions of general justice and equity between the parties,
and will, if necessary for that purpose, direct a distinct
partition of each of several portions of the estate in
which derivative alienees have distinct interests, in
order to protect those interests; or it will give other
special directions to the commissioners, and nominate
the commissioners, instead of allowing them to be
nominated by the parties.’ 719.

SECTION II.
OF THE SETTLEMENT OF BOUNDARIES.

aemciat THE general rule observed by Courts of
rule. Equity is, not to exercise jurisdiction in set-
tling boundaries on the mere ground that they are a
subject of controversy, but to require that there should
be some superadded equity.? 720.
pate Thus, if the confusion of boundaries has
through —_ been occasioned by fraud, that will constitute
a sufficient ground for the interference of the
1 St. @ 655, 656, b,c.

® St. 4 615-623; and on this subject see Wake v. Conyers, 2
Lead. Cas. Eq., 2d ed. 362, et seg.*

 

* A Court of Equity has no jurisdiction to try a naked question
of title to real estate. Hickman v. Cook, 3 Humphreys, 640; The
Alton M. & F. Ins. Co. v. Buckmaster, 18 Il]. 201. Controversies
respecting lost bounds not presenting any peculiar Equity have
been left to be settled by proceedings at Law. Perry ®. Pratt, 31
Conn. 483.
DOWER. 369

Court. And if the fraud is established, the Court will
by commission ascertain the boundaries, if practicable ;
and if that is not-practicable, it will do justice between
the parties by assigning reasonable boundaries or setting
out lands of equal value.’ 721.

In the next place, there will be a sufficient 4). rasion
ground for the jurisdiction, if the confusion through

fault of a
has arisen by the negligence or misconduct R&ty,rhose

uty it was
of a person standing in such a relation to the [pPfesez’e
opposite party as imposed upon him an ob- “"*
ligation to preserve and protect the boundaries. Thus,
a tenant or a copyholder is under an implied obliga-
tion to preserve them ; and if through his default there
arises a confusion of boundaries, the Court will inter-
fere as against such tenant or copyholder. to ascertain
and fix them. But even in these cases, it is indispen-
sable to aver and to establish by proofs that the boun-
daries cannot be found without being ascertained under
the order of the Court.2 722.
Equitable proceedings will also lie when yyuttipticity
they will prevent multiplicity of suits? 723, of su

SECTION III.

OF THE ASSIGNMENT OF DOWER.

Courts of Equity will now exercise a concurrent
jurisdiction with Courts of Law in the assignment
of dower in all cases, after the title of the widow, if

" St. 2 619, 623. 2 St. 2 620. 3 St. 2 621.
370 DOWER.

disputed, has been established. There is no difficulty
in maintaining this jurisdiction, as the case can scarcely
be supposed in which the widow may not either want
a discovery of the title-deeds, or of dowable lands, or
some other kind of discovery, or some assistance which
it was the peculiar province of the Court of Chancery
to afford.’ 724.

1 St. 2 624-631; 2 Lead. Cas. Eq., 2d ed. 402, 403; Tudor’s
Lead. Cas. Real Prop., 2d ed. 55.
. TITLE IV.

Of Protective Equity.
Errespectibe of Disability.
ie

CHAPTER I.

OF PROTECTION FROM LITIGATION OR INJURY, AF-
FORDED BY THE CANCELLING, DELIVERING UP,
AND SECURING OF DOCUMENTS.

Courts of Equity frequently cancel, or rescind, or
order the delivery up of instruments which have an-
swered the end for which they were created,

: ; s » Voidabl
or instruments which are voidable, or in- and void

struments which are in reality void and yet ments and
: ee those which
apparently valid. This is done upon the have an-
principle, as it is technically called, quia ar poh
timet, that is, for fear that such instruments
may be vexatiously or injuriously used, when the
evidence to impeach them may be lost or diminished,
or for fear that they may throw a cloud or suspicion
over the plaintiff’s title and interests." 725.

But where the illegality of the instrument appears
on the face of it, so that its nullity can admit of no
doubt, Equity will not interfere ; because, in that case,
the ground for interference does not exist.’ 726.

1 St. 2 694, 698, 699, 700, 705; Cooper v. Joel, 27 Beav. 313;
W— ». B—, and B— v. W—, 32 Beav. 574; Onions v. Cohen, 2
Hem. & M. 354.*

2 St. 2 700 a.

 

* Petit v. Shepherd, 5 Paige, 493; Fish v. French, 15 Gray, 520.
374 CANCELLING OF DOCUMENTS, ETC.

Courts of Equity will generally cancel or rescind
instruments, or order them to be delivered up, where
there is an actual or constructive fraud, and the plain-
tiff has not participated therein, or is not in pari
delicto ; or where there is an offence against public
policy, and the plaintiff has participated therein, and
is in pari delicto, but yet public policy would be more
promoted by assisting the plaintiff, than by refusing
to assist him.’ 727.

Where both parties are concerned in an illegal act,
it does not always follow that they stand in pari
delicto ; for one party may act under circumstances of
oppression, imposition, hardship, undue influence, or
great inequality of condition or age; so that his guilt
may be far less in degree than that of his associate in
the offence? 728.

In cases of usury,(a) if the lender comes into a
Court of Equity, seeking to enforce the contract, the
Court will refuse to give any assistance, and will re-

" St. 2 298, 695; W— v. B—, and B— v. W—, 32 Beav. 574.*
2 St. 2 300.

 

(a) See supra, par. 40, note.

* This was a recent English case where the daughter concurred
with her father in a covenant to surrender copyholds by way of
mortgage to one who loaned a sum of money to the father; part
of the consideration being the permission of the father for the
mortgagee to continue his visits to the daughter, whom he was
seducing or had seduced ; upon bill and cross-bill to enforce, and
to set aside the contract, the Court at first considered, that it could
not interfere for either party, but ultimately ordered the deed to
be cancelled, and that the grantee should pay the costs of both
sides. St. Eq. Jur. 300a.
CANCELLING OF DOCUMENTS, ETO. 375

pudiate the contract. But, on the other hand, if the
borrower comes into a Court of Equity, seeking relief
against the contract, the Court will interfere, although
only on the terms that the plaintiff will do equity, by
paying the defendant what is really due to him, de-
ducting the usurious interest.’ And if the borrower
has paid the money, Courts of Equity, and indeed
Courts of Law also, will assist him to recover back
the excess beyond principal and lawful interest; for
the maxim, volenti non fit injuria, does not apply to
the borrower, since he cannot be said to have volun-
tarily paid the usurious interest; and as to being a
participator in the offence, he was compelled to submit
to the terms which oppression and his necessities im-
posed on him.’ 729.

But relief is not granted where both parties are truly
in pari delicto ; for the maxim is, that in pari delicto,
potior est conditio defendentis et possidentis.2? An ex-
ception occurs, however, as already stated, where pub-
lic policy would thereby be promoted ; as in the case
of a gaming security,(a) which is void, and money
paid on it may be recovered back.* 730.

The Court will not interfere between a voluntary
voluntary donor and donee, either by causing ***

a voluntary deed or writing to be delivered up to the
donor, or by decreeing specific performance of it in
favor of the donee, unless the subsequent conduct of

1 St. 2 301. 2 St. 2 302.
5 St. 298, 299. 4 St. 2 303, 304.

 

(a) See Smith’s Manual of Common Law, Am. ed. 65.
376 CANCELLING, DELIVERING UP,

the donor has raised an equity for valuable considera-
tion in favor of the donee. Anda purchaser for value
of an interest in land from a voluntary donor, cannot
require the voluntary deed or agreement to be delivered
up to him to be cancelled.*. 731.

Where, just before going through the marriage cer-
emony with his deceased wife’s sister, a man vests
property in trustees for her benefit, neither he nor
his representatives after his death can set the gift or
settlement aside.? 732.

A settlement made by an unmarried lady shortly
after majority, without contemplating marriage with
any particular person, will be set aside as an improvi-
dent act of a person who ought to be protected by the
Court. 733.

Forgedin. | Forged instruments may be decreed to be
Siruments. delivered up, without any prior trial, on the
point of forgery. 734.
Assistance will often be given even in
ofunexeee Tegard to unexceptionable instruments. A
struments ~ Court of Equity will order them to be de-
tule to livered up to the party entitled to them, if
his title to the property to which they relate
is not disputed. But where the title to the possession
of deeds and other writings depends on the validity of
the title of the party to the property to which they re-
late, and he is not in possession of the property, and

1 De Hoghton v. Money, L. R. 1 Eq. 154; Dillwyn v. Llew-

elyn, 4D. F. & J. 517.

? Ayerstv. Jenkins, L. R. 16 Eq. 275.
* Everitt . Everitt, L. R. 10 Eq. 405. * St. 3 701.
AND SECURING OF DOCUMENTS. 377

the evidence of his title to it is in his own power, or
it does not depend on the production of the deeds or
writings of which he prays the delivery ; in such case,
he must first establish his title to the property, before
he can entitle himself to a delivery of the deeds.1 735.

Again, persons having rights and interests ,
. a q A Inspection
in real estate are entitled to an inspection and copies
and copies of the deeds under which they ,
claim title.” 736. i

And remaindermen and reversioners, and securing of
other persons having limited or ulterior in- ¢°°v™*™s
terests in real estate, have a right, in many cases, to
have the title-deeds secured or brought into Court for
preservation. But this will not be directed unless it
clearly appears that there is danger of a loss or destruc-
tion of the instruments in the hands of the persons pos-
sessing them ; and also that the interest of the plaintiff
is not too contingent or too remote to warrant the pro-
ceeding.® 737.

Bonds and notes given by a relative have _
been ordered to be delivered up by executors op at een
or administrators, where it has been fairly more
inferable, from the conduct of the deceased, that he did
not intend that any use should be made of the securi-
ties.* 738.

’ St. 3 703. 2 St. 2 704.
3 St. 3 704. 4 See St. 3 705 a-706 a.

32
378 INTERPLEADER.

CHAPTER IIL.

OF PROTECTION FROM LITIGATION RESPECTING THE
PROPERTY OF ANOTHER, BY MEANS OF INTER-
PLEADER.

.

THERE was a process of interpleader at
Taw pro. Common Law, but it had a very narrow
ee range of application ;1 and prior to the stat-
ute 1 and 2 Will. IV, c. 58, it fell into entire disuse;
and although the application of the legal remedy of
interpleader has been greatly extended, yet the juris-
diction in Equity seems to have been left substantially
to the old foundation.’ 739,

a An interpleader is a proceeding by a per-
ofanimier- son from whom two or more other persons,
Pieader- whose titles are connected (by reason of the
one being derived from the other, or of both being de-
rived from a common source), and whose rights he
cannot readily determine, have claimed the same thing,
wherein he himself claims no interest, and the object
of which is to compel them to contest the matter be-
tween themselves, without involving him in any vexa-
tious litigation respecting it.“ 740.

' St. ¢ 801. 2 St. @ 805. 3 St. 3 823.

‘ See St. 3 806, and notes, and -807, 810-816, 820, 824; Jones».
Thomas, 2 Sm. & Gif. 186.*

 

* Spring v. So. C. Ins. Co., 8 Wheat. 268; Mitford Eq. Pl. (Ty-
ler’s ed.), 234.
INTERPLEADER. 379

Thus, where a tenant is liable to pay rent,
but there are several persons claiming title fone in the
to it, in privity of contract or tenure, he is Tedd
entitled to file an interpleader to compel Oe
them to ascertain to whom the rent is payable.’ But
if a claim to rent is set up by a mere stranger, under
a title paramount, and not in privity of contract or
tenure, the tenant cannot compel his landlord to inter-
plead with such a stranger; for the demand made by
the latter is not a demand of the same nature or in the
same right; the stranger cannot demand the rent, as
such, but if he succeeds in an ejectment, he has only a
right to damages for use and occupation ; whereas the
landlord claims the rent, as such, in privity of contract,
tenure, and title.’ Besides, the tenant is under a con-
tract to pay the rent to his landlord.’ 741.

Where the title of the one claimant was 4. joction
not derived from that of the other, nor were Pctween the
they both derived from the same common {vp <laim-
source, but they were independent of and ad-
verse to each other, the party holding the property
had to defend himself as well as he could at Law; for
if a Court of Equity had exercised jurisdiction in such
cases, it would have been asserting the right to try
mere legal titles, on a controversy between different
parties, where there was no privity of contract between

1 St. 2 811. 2 St. @ 817b.
3 St. 3812b. On this subject see Cook v. Earl of Rosslyn, 1

Gif. 167.
380 INTERPLEADER.

them and the third person who called for an inter-
pleader.| The Judicature Act, 1873 (36 and 37 Vict.
c. 66), s. 24, may, however, enable a Court of Equity
to deal with such cases. 742.

Principal Property put into the hands of a private
andagent. agent by his principal, or received by an
agent for his principal, is not the subject of an inter-
pleader, on the assertion of a claim to it by a third
person under an independent adverse title; but the
agent must deliver it to the principal; for the posses-
sion of the agent is the possession of the principal.
And the like doctrine would prevail in favor of a third
person to whom the principal, after the bailment, had
transferred the right to the property, where the trans-
fer had been recognized and assented to by the agent.’
But if the principal has created an interest in or lien
on the funds in the hands of the agent, in favor of a
third person, and the nature and extent of that inter-
est or lien is controverted between the principal and
such third person, there an interpleader will lie* 743.
Ability to It seems essential that the person by whom
admit title an interpleader is filed should be in such a
claimant. position as to be able to admit the title of
either claimant. Thus, a sheriff, who seizes goods on
execution, cannot ordinarily maintain an interpleader,
on account of the existence of adverse claims to the
property; for, as to one of the defendants he neces-

1 St. 2 816, 820. 2 St. 817, 817 a, 818.
5 St. 3 817 a.
INTERPLEA DER. 381

sarily, under ordinary circumstances, admits himself to
be a wrongdoer.’ 744,

Tt is not necessary that proceedings should 4 suai pro-
have been commenced either at Law or in ceedings _
Equity, in order to found a jurisdiction for *"%-
an interpleader.* 745.

In order to prevent an interpleader being p, tim:
made the instrument of delay or of collusion ™"*-
‘with one of the parties, the Courts require that the
plaintiff should make an affidavit that there is no col-
lusion between him and any of the other parties; and
also, if it is a case of money due by him, that he should
bring the money into Court, or at least should offer to
do so.’ 746.

1 See St. ¢ 821; and Child v. Mann, L. R. 3 Eq. 806, where a
bill of interpleader by a sheriff, who sold under the order of the
Court of Chancery, was sustained.*

7 St. 2 802. 3 St. 2 809.

 

* See also Parker v. Barker, 42 N. H. 78.
382 BILLS OF PEACE.

CHAPTER III.

)F PROTECTION FROM REPEATED OR RENEWED LITI-
GATION, AFFORDED BY DECREES UPON BILLS OF.
PEACE, OR BILLS TO ESTABLISH WILLIS.

SECTION I.
OF BILLS OF PEACE,

es Tuat which was termed a Bill of Peace
vefinition ‘ .
ee is a proceeding filed to establish and per-
petuate, in favor of or against a number of
rersons, some general private right, which from its
ature is likely to be sought to be established or over-
hrown by different persons, at different times, and by
ifferent actions; or to confirm and perpetuate a right
vhich has been satisfactorily established by two or
aore trials at Law, but is in danger of being again
ontroverted. 747.
ene In the former of these classes of cases,
iterfer- Equity interferes in order to prevent multi-
plicity of suits; in the latter, to prevent op-
ressive litigation.’ 748.

1 St. 2 858, 854, 859, ? St. 2 853, 854, 859.
BILLS OF PEACE. 383

The former occurs in the case of a pro- tnetance of
ceeding to settle the amount of a general fine t2,A"st
to be paid by all the copyhold tenants of a °!Pe°®
manor, or to establish a right of common of the free-
hold tenants of a manor.’ 749.

In most cases of this class, before the stat. Pie-cegule
21 and 22 Vict. c. 27, enabling the Court sitesto#
of Chancery to try questions of fact, with P&*
or without a jury, it was held that the plaintiff ought
to establish his right by a determination of a Court
of Law, before he filed his bill in Equity. And if he
did not do so, and the right he claimed had not the
sanction of a long possession, and he had any means
of trying the matter at Law, a demurrer would hold ;
for the object of these bills, as their name itself im-

.. ports, was simply to secure the quiet enjoyment of a

‘right which, primd facie at least, clearly exists, and
not to decide the question of a doubtful right. If he
had not been actually interrupted or dispossessed, so
that he had had no opportunity of trying his right, he
might file a bill to establish it, and the Court would,
if it was necessary, ascerfain-it by an action or issue at
Law, and then make a decree finally binding on all
parties.’ 750.

St. 3856; Phillips 7. Hudson, L. R. 2 Ch. Ap. 243; Warrick
v. Queen’s College, Oxford, L. R. 10 Eq. 105; 6 Ch. Ap. 716;
Jegon v. Vivian, L. R. 6 Ch. Ap. 742. For other instances, see
St. 2 855, 856. ‘

2 See St. 2 854, and note.
384 PROCEEDINGS TO ESTABLISH WILLS.

It seems that Courts of Equity, on prin-
Rightsin ciples of public policy, will not, on such a
paviie «proceeding, decree a perpetual injunction
protectedin for the establishment or the enjoyment of
ee ale right of a party who claims in contraven-

tion of a public right.! 751.

SECTION IT.

OF PROCEEDINGS TO ESTABLISH WILLS.

THE proper jurisdiction for deciding as
ingencral” to the validity of wills, where they are ac-
eine tually contested, belongs to the Court of Pro-.
ie bate, subject to these exceptions: 752.

1. The heir-at-law may, by eonsent, come
into a Court of Equity to have the validity
of the will tried. He cannot come into Equity unless
by consent; because he hasa legal remedy by eject-
ment, and if there are any impediments to the proper
trial of the merits of such an ejectment, he may come
into Equity to have them removed? 753.

2, A devisee in possession, whether legal or equit-
able, has an equity to have the will established against

Exceptions.

1 St. 3 858.

? St. 1447, note; see stat. 21 and 22 Vict. c, 27; 25 and 26
Vict. c. 42; Egmont  Darell,1 Hem. & M. 563; Cowgill ».
Rhodes, 33 Beav. 310.
PROCEEDINGS TO ESTABLISH WILLS. 385.

the heir, although the heir has brought no action of
ejectment against the devisee, and although no trusts
are declared by the will, and although it is not neces-
sary to administer the estate under the direction of a
Court of Equity.’ And the Court has jurisdiction to
entertain a suit to establish a will against the parties
claiming under a prior will? 754.

3, And where a will is contested, and it is necessary
to establish its validity, in order to accomplish pur-
poses which it is the province of Courts of Equity to
effect (such as the execution of trusts, the marshalling
of assets, etc.), and the parties are dissatisfied with the
probate, the Court of Equity in which the controversy
is depending will cause the validity of the will to be
tried ; and if the will is established, a perpetual in-
junction may be decreed.* 755.

' Boyse v. Rossborough, Kay, 71, 102, 111;1 K. & J. 124, 139;
3D. M. & G. 817; 6 H. L. Cas.1; Williams v. Williams, 33
Beayv. 306.

2 Lovett v. Lovett, 3 K. & J. 1.

5 St. 3 1445-7; see Sir Hugh Cairns’s Act, stat. 21 and 22 Vict.
ce, 27; and Sir John Rolt’s Act, 25 and 26 Vict. c. 42.*

 

* Asa general rule Equity has no jurisdiction over the pro-
bate of wills. Courts of Probate have jurisdiction over all pro-
ceedings in the probate of wills. And generally neither Courts
of Law or Equity can take notice of a will before it has been
allowed in the Probate Court. 1 Perry on Trusts, 181, 182.

33
386 INJUNCTIONS.

CHAPTER IV.

OF PROTECTION FROM LOSS OR INJURY BY
INJUNCTION.

fia THE jurisdiction in granting injunctions
Hon: has arisen either from the want of any
legal remedy, or from the imperfection and inadequacy
of the legal remedy in cases where any such remedy
exists.’ 756.

By the Common Law Procedure Act, 1854 (17 and
18 Vict. ¢. 125, ss. 79-82), the power of granting in-
junctions in certain cases was given to the Superior
Courts of Common Law. This, however, did not
oust the jurisdiction of the Court of Chancery, but
only gave concurrent jurisdiction to the Courts of
Common Law. 757.

By the stat. 28 and 29 Vict. c. 99, s. 1, par. 8, the
power of granting an injunction in certain cases, is
given to the County Courts. 758.

i ts Injunctions, when granted on bills are
are either either temporary, as until the coming in of
oe matter of defence, or until the further order

: of the Court, or until the hearing of the
cause ; or they are perpetual, as when they form a part
of the decree after the hearing, and amount to a per-
petual prohibition.’ 759.

1 St. 2 864. 2 St. 2 873,
INJUNCTIONS. 387

Injunctions may be also either total or

partial, qualified or unconditional! And (a grt
; fied ke

some are of a preventive, others of a restor- conditional,
preventive

ative character. The former are the most orrestora-
common.’ 760. re

By the Judicature Act, 1873 (36 and 37
Vict. c. 66), s. 25 (8), “a mandamus or an ate
injunction may be granted or a receiver ~
appointed by 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 uncondition-
ally or upon such terms and conditions as the Court
shall think just; and-if an injunction is asked, either
before, or at, or after the hearing of any cause or mat-
ter, to prevent any threatened or apprehended waste
or trespass, such injunction may be granted, if the
Court shall think fit, whether the person against whom
such injunction is sought is or is not in possession
under any claim of title or otherwise, or (if out of pos-
session) does or does not claim a right to do the act
sought te be restrained under any color of title, and
whether the estates claimed by both or by either of the
parties are legal or equitable.” 761.

Courts of Equity constantly decline laying meen
down any rule which shall limit their power ot limit

its power of

1 1 i in grantin
and discretion as to the particular cases in granting |

which injunctions shall be granted or with-

1 St. 2 886. 2 St. 2 862.
388 INJUNCTIONS.

General = held.’ And it would seem, that unless some
rule as to

eases where special reason intervenes, they will in all
granted. cases grant an injunction to protect their own
officers, who execute their process, against any suit
brought against them for acts done under or by virtue
of such process ;? and to prevent any one from preju-
dicing another, contrary to equity and good conscience ;°
istics: 2 that it would appear to be only needful to
cific cases. advert-to a few specific cases presenting points
pumesew’ which are not of a sufficiently obvious char-

acter to be omitted.* 762.
1St.3959b. 7 St. ¢ 891. % See St. 2 903-8, 927-9, 951-9.

 

* In former editions of this work the author has considered
briefly in this connection the subject of Bills for Injunction to re-
strain proceedings at Law, a practice rendered unnecessary in
England since the passage of the Judicature Act; and hence omitted
in the 12th London edition.

Injunctions to restrain proceedings at Law were either common or
special, A common injunction was one that issued upon and for
default of a defendant in not appearing to or answering a bill, in
order to restrain him from proceeding at Law touching the matter
in the bill, till he should have fully answered the bill, and cleared
his contempt, and the Court should make other order 0 the con-
trary. It was also granted where the defendant obtained an order
for further time to answer. This kind of injunction was of course;
but a prima facie case must now be made by the bill, and must be
supported by affidavit. (Senior v. Pritchard, 16 Beay. 473; Lovell
v. Galloway, 17 Beay. 1; Earl of Oxford’s Case, 2 Lead. Cas. Eq.,
2d ed. 601, et seq. ; 15 and 16 Vict. c. 86,s. 58 ; Consol. Ord. XXV;
2 Dan. C. P., 4th ed. 1462 (6), 1472 (m) ).

Injunctions upon other occasions, or involving other directions,
were called special injunctions. (St. Eq. Jur. 2 892.) And the
granting or refusing of them is a matter resting in the sound dis-
cretion of the judge. (St. Eq. Jur. 3 863.)
INJUNCTIONS, 389

I. An injunction will be granted to re-
strain voluntary waste.’ But Courts of

1 St. 2 912-919.

I. Waste.

 

Injunctions to restrain proceedings at Law may be perpetual or
temporary, total or partial, qualified or unconditional. (St. Eq.
Jur. 2886.) And they may be granted at any stage of the legal suit.
Thus an injunction is sometimes granted to stay trial; sometimes
after verdict, to stay judgment; sometimes after judgment, to stay
execution ; sometimes after execution, to stay the money in the
hands of the sheriff, if it is a case of fieri facias, or to stay the de-
livery of possession, if it is a writ of possession. (St. Eq. Jur. 3 886.)
There is an almost infinite variety of occasions on which an in-
junction may issue to stay legal proceedings. (St. Eq. Jur. 2 884.)
In general it may be stated that an injunction will issue in all
cases where, by accident, fraud, or otherwise, it would be against
conscience to proceed in another Court. (St. Eq. Jur. 3 878-885,
887, 889; High on Injunctions, 3 44-56.)

Bills for an injunction restraining a person from availing him-
self of a judgment actually obtained at Law, which it would be
against conscience to execute, are usually called Bills for a New
Trial. (St. Eq. Jur. 3 887.) They have not been countenanced
much of late years. In general it has been considered that the
ground must be such as would be a ground for a bill of review of
a decree in Equity on the discovery of new matter. (St. Eq. Jur. 3
888.) And Courts of Equity will not relieve against a judgment
at Law, or in a foreign Court, upon a ground which could have
been used and would have been available as a defence at Law or
in such foreign Court. So that no relief will be granted where the
party aggrieved has been guilty of laches in omitting to procure
the proper proofs before the trial by means of a bill of discovery,
or in neglecting to apply for a new trial within the proper time.
Nor will relief be granted upon a ground which has been fully
and fairly tried at Law or in a foreign Court. (St. Eq. Jur. 3 887,
894, 895, 895 a.)

In the. Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch,
332, it was said by Ch. Justice Marshall, “that any fact which
390 INJUNCTIONS.

Equity have no means of interfering in cases of per-
missive waste by a tenant for life.’ 763.

1 Powys v. Blagrave, Kay, 495; 4D. M. & G. 448.*

 

clearly proves it to be against conscience to execute a judgment,
and of which the injured party could not have availed himself in
a Court of Law, or of which he might have availed himself at
Law but was prevented by fraud or accident, unmixed with any
fault or negligence in himself or his agents, will justify an appli-
cation to a Court of Chancery.”

The rule laid down by Ch. Justice Marshall has been generally
followed by the Courts of this country. (See Robinson v. Wheeler,
51 N. H. 384; Craft ». Thompson, Id. 536 ; Holland v. Trotter, 22
Gratt. (Va.), 186; Smith v. Allen, 63 Il. 474; High on Injunc-
tions, 3 97.)

The Court of Chancery will not stay proceedings in any crimi-
nal matter, or in any cases not strictly of a civil nature, such as
proceedings on a mandamus, or an indictment, or an information,
or a writ of prohibition, unless the parties who are seeking redress
by such proceedings are also plaintiffs in Equity, proceeding at
the time, in regard to the same matter of right, for redress in the
form of a civil suit, and of a criminal prosecution. (St. Eq. Jur. 3
893; High on Injunctions, ¢ 23.)

Nor will the Court grant an injunction against any legal pro-
ceedings on the ground of a mistake in pleading or in the conduct
of the cause; for a party has no right to invoke the aid of a Court
of Equity, or to subject the opposite party to fresh litigation, in
order to remedy the consequences of the unskilfulness, careless-
ness, or inadvertence of those whom he employs. Nor will such
an injunction be granted on the ground of a failure in obtaining
fresh evidence, or merely to let in new corroborative proofs, for
that would be to keep alive litigation; nor on the ground that a
question of law has been erroneously decided by a Court of Law,
for that would be to constitute the Court of Chancery a Court of
Appeal from the decisions of Courts of Common Law. (See St. Eq.
Jur. ¢ 897; High on Injunctions, 3 178.)

 

* For such a tenant is not bound to repair.
INJUNCTIONS. 391

A tenant for life impeachable of waste is only al-
lowed to fell timber when, where, and in such manner
as that it will be for the benefit of the succession ; and
he is not entitled to the timber when cut. 764.

A tenant for life, unless unimpeachable for waste,
is not entitled to open any mines of coal or minerals
or quarries which had not been previously opened, but
may work open mines.” 765.

By the Judicature Act, 1873 (36 and 37 5. witable
Vict. c. 66), s. 25 (3), “An estate for life waste.
without impeachment of waste shall not confer or be
deemed to have conferred upon the tenant for life any
legal right to commit waste of the description known
as equitable waste, unless an intention to confer such
right shall expressly appear by the eaenuen creating
such estate.” 766.

Prior to this Act the Court of Chancery would some-
times interfere with respect to what is commonly, al-
though with no great propriety, called equitable waste ;*

‘2 8p. 570; Bagot v. Bagot, 32 Beav. 509.
2 2Sp. 573; Bagot v. Bagot, 32 Beav. 509. 5 St. 3 912.

 

The writ of injunction is not addressed to the Courts in which
or by whose authority the prohibited proceedings are carried on.
Tt does not affect to interfere with them. It is directed only to the
parties, prohibiting them from making an unfair use of the pro-
ceedings of a Court of Law. (St. Eq. Jur. ¢ 875.) .

On similar principles, where both the parties to a suit in a
foreign country are residing within this country, the Courts of
Equity have full authority to act on them, whether by injunction
or otherwise, with regard to such suits; because they can act on
the parties in personam, without presuming to direct or control the
foreign Court. (St. Eq. Jur. 3 899, 900; High on Injunctions, 2
57-60.)
392 INJUNCTIONS. -

that is, such destructive or injurious acts as would not
be punishable as waste at Law, because consistent with
the legal rights of the party committing them, but
which are considered as waste, and as unjustifiable, in
the view of a Court of Equity, as occasioning an un-
conscientious and irreparable injury to the interests of
the other parties; as where a tenant for life without
impeachment of waste, or a tenant in tail after possi-
bility of issue extinct, or a tenant in fee with an ex-
ecutory devise over, attempts or intends to pull down
houses, or totally to destroy a wood, or to cut: down
trees which were planted, even though by himself, or
were left standing for the shelter or ornament of the
house or its grounds.’ 767.

Where such trees have been cut down, the Court
will give damages proportionate to the injury (if any)
done to the inheritance.” 768. :
Giieia On similar grounds, although in general
tesantsin the Court will not interfere by injunction to

tenants in

coparee.. prevent waste as between tenants in common,

rs and et
joint ten- | OF COparceners, or joint tenants, because they

sa have a right to enjoy the estate as they please,
and because they can make partition when they choose,
so as to prevent future waste; yet the Court will in-
terfere in special cases, as where the waste is destruc-
tive of the estate, and not within the usual legitimate
exercise of the right of enjoying the estate® 769.

1 St. @ 915; 2 Sp. 570, 571; Micklethwait v. Micklethwait, 1
D. & J. 504; Turner v, Wright, Johns. 740 32D. F. & J. 234.
* Bubb v. Yelverton, Ex parte Hastings, L. R. 10 Eq. 465.

* St. ¢ 916; and see 909, note.
INJUNCTIONS. 393

II. In the case of public nuisances, an in- 41. pabtic
formation lies in Equity to redress the griev- ™**"°*-
ance by way of injunction.’ In regard to private nui-
sances, in order to justify the interposition of private
a Court of Equity, there must be such an in- ™"°*
jury as from its nature is not susceptible of being ade-
quately compensated by damages at Law, or such as
from its continuance must occasion a constantly recur-
ring grievance, which cannot be prevented otherwise
than by an injunction.’ 770.

III. The Court frequently interferes in j, pay.
cases of patents for inventions.’ If the patent °**
has been recently granted, and its validity has not been
already ascertained by a trial, and the defendant denies
it, or puts the matter in doubt, there, in general, the
Court will not grant an immediate injunction, but will
require the validity of the patent to be ascertained in

1 St. 3 923, 924a.*

2 St. 2 925, 926; see Eaden »v. Firth, 1 Hem. & M. 573; Tip-
ping v. St. Helen’s Smelting Company, L. R. 1 Ch. Ap. 66.+

* St. 3 930-3; Clark v. Fergusson, 1 Gif. 184.t

 

* A public nuisance cannot exist in acts warranted by law or
authorized by legislative sanction, even though the act complained
of might, independent of the statute, be a nuisance. High on In-
junctions, 2 523. And private persons seeking the aid of equity to
restrain a public nuisance, must show some special injury peculiar
to themselves, aside from and independent of the general injury to
the public. High on Injunctions, 3 522, and cases there cited.

{+ Burnham v. Kempton, 3 Am. Law Reg. U. S. 380; see also
Miss. & Mo. R. R. v. Ward, 2 Black (Sup. Ct.), 485.

¢ High on Injunctions, 3 602.. The right to interfere by injunc-
tion in this class of cases is, in this country, exercised only by the
United States Courts, the State Courts being devoid of jurisdiction.
Id. 3 602.
394 INJUNCTIONS.

the first instance. But if the patent has been granted
some length of time, and the patentee has put the in-
vention into public use, and has had an exclusive pos-
session of it under his patent for such a period of time
that there is a fair ground for presuming that he has
an exclusive right, the Court will ordinarily interfere
by way of preliminary injunction, pending the pro-
ceedings; reserving, of course, until the ultimate de-
cision of the cause, its own final judgment on the merits.
And an injunction will be granted after the time limited
for the expiration of a patent, to restrain the sale of
articles manufactured in violation of the patent while
it was in force.’ 771.
IV. Copy- IV. Courts of Equity often afford protec-
Tights. tion to copyrights, and act upon similar
principles with respect to the title? 772.

Ifa work is of a clearly irreligious, immoral, libellous,
or obscene character, they will not protect it. 773.

It is not infringement of the copyright of a book to
make bond fide quotations or extracts from it, or a
bond fide abridgment of it, or to make a bond fide use
of the same common matter in the compilation of an-

1 St. 2934.

2 St. 2 935, 949, 950; see Phillips on Copyr. 146-166.+
3 St. 2 936-8.

 

* High on Injunctions, 2 606, et seg.

+ High on Injunctions, 3 641. By Acts of Congress, the power
of issuing injunctions in cases of copyrights in this country is
vested in the United States Courts, and as in the case of patents, is
exclusively exercised by .these Courts. Ibidem, 16 St. at Large,
ch, 230, p. 212.

}. High on Injunctions, 3 642.
INJUNCTIONS. 395

other work. But what constitutes a bond fide case of
extracts, or a bond fide abridgment, or a bond fide use
of the same common materials, is often a matter of
most embarrassing inquiry.’ 774.

It is not an infringement of copyright for a person
to represent a play dramatized from a novel written by
another. But it is an infringement to print and pub-
lish a play so ,constructed, at least if it embodies ver-
batim the most stirring passages from the novel.’
775.

V. Courts of Equity will also restrain the
publication of private letters, whether of a
literary character or otherwise, where the publication
is attempted without the consent of the author. The
property which the receiver has in letters is of a qual-
ified kind. To permit the receiver to publish letters
of a literary character, would be allowing him to sell
or give away that which belongs and may be of value
to another ; and to permit the receiver to publish let-
ters of other kinds, would be allowing a practice which
must prove most prejudicial to the interests of society.*
776.

1 Upon this subject see St. 3 939-942, and notes, and Jarrold v.
Houlston, 3 K. & J. 708; Hotten v. Arthur, 1 Hem. & M. 603.*

2? Tinsley v. Lacy, 1 Hem. & M. 747.
5 St. 2 944-8; see Phillips on Copyr. 27-34.t

V. Letters.

 

* High on Injunctions, 3 649, et seg.; Story v. Holcombe, 4
McLean, 307; Gray v. Russell, 1 Story, 11; Wheaton v. Peters, 8
Peters, 501.
' + High on Injunctions, ¢ 664. Photographing is within the
prohibition. Rossiter v. Hall, 5 Blatch. C. C. 362.

re
396 INJUNCTIONS,

VI. Applications to Parliament on pri-
cationsto” vate grounds may be restrained by injune-
Parliament: tion; but applications on public grounds
cannot be restrained.’ 777.

VII. Where both the parties to a suit in
Non sealed a foreign country are residing within this
foreign country, the Courts of Equity have full
ree authority to act on them, whether by injune-
tion or otherwise, with regard to such suits; because
they can act on the parties in personam, without pre-
suming to direct or control the foreign Court.’ 778.

Courts of Equity effectuate their own decrees in
many cases, by enjoining parties to yield up, deliver,
quit, or continue the possession.’ 779.

1 Lancaster and Carlisle Railway Company v. Northwestern
Railway Company, 2 K. & J. 293; see Steele v. North Metropoli-
tan Railway Company, L. R. 2 Ch. Ap. 237.*

2 St. 2 899, 900.F

8 St. 3 959. s

 

* St. Eq. Jur. 2 1561; Durfee v. Old Colony R. R. Co., 5 Allen,
230.
} High on Injunctions, 3 57-60.
NE EXEAT REGNO. 397

CHAPTER V.

OF PROTECTION FROM ANOTHER’S ABSCONDMENT BY
THE WRIT OF NE EXEAT REGNO.(a)

THE writ ne exeat regno is a prerogative writ which
is issued to prevent a person from leaving the realm,!
even though his usual residence is in foreign parts.’
780.

It was originally applied only to great political
purposes.’ And although it is now applied in certain
cases by custom to private civil matters only, yet it is
employed with great caution and jealousy.* 781.

This writ will not be granted, except in cases of
equitable debts and claims; for, in regard to civil
rights, it is treated in the nature of an equitable bail.?
782.

To this, however, there are two exceptions: 1.
Where alimony was actually decreed by the Ecclesias-
tical Court, and no appeal was made against the decree,
the writ was granted, unless the husband made it ap-
pear that he did not intend to leave the kingdom. And

1 St. 2 1465, 2 2 Sp. 15. 8 St. 1467.
« St. 2 1467, note, 21468. * St. 3 1470.

 

(a) See the Absconding Debtors Act, 1870, stat. 33 and 34
Vict. c. 76.
398 NE EXEAT REGNO.

it is presumed the writ would now be granted under
similar circumstances in the case of alimony decreed
by the Divorce Court.' 2. Where there is an ad-
mitted balance due from the defendant to the plaintiff,
but a larger sum is claimed by the latter, the writ will
. be issued.’ 783.

The equitable demand for which the writ will be
issued, must be certain in its nature, of a pecuniary
character, and actually payable, and not contingent.’
784,

St. 3 1471, and note, and 1472. ? St. 3 1471, 1473.
3 St. @ 1474,
APPOINTMENT OF RECEIVER, ETC. 399

CHAPTER VI.

OF THE PROTECTION OF PROPERTY, BY TAKING
AWAY THE POSSESSION OR RECEIPT THEREOF,
OR BY REQUIRING SECURITY.

I. Courts oF Equity very fréquently prevent
anticipated wrong or loss, by the appoint- "
ment of a receiver to receive rents and other mena
income or profits. And such an appoint- oe
ment may be made even where the property is legal,
and judgment creditors have taken possession of it
under writs of elegit ; for it is competent for the Court
to appoint a receiver in favor of annuitants and equit-
able creditors, not disturbing the just prior rights, if
any, of judgment creditors.’ 785.

1 St. 2 826. 2 St. 2 829.*

 

(a) See stat. 23 and 24 Vict. c. 145, s. 17-24.

* In appointing receivers, the Courts generally act upon well-
established rules. In Blandheir v. Moore, 11 Md. 364, these rules
were stated as follows: (1.) That the power of appointment is a
delicate one, and is to be exercised with great circumspection ;
(2.) That it must appear that the claimant has a title to the prop-
erty, and the Court must be satisfied by affidavit that a receiver
is necessary to preserve the property; (3.) That the Court never
appoints a receiver merely because the measure can do no harm;
(4.) That fraud or imminent danger, ifthe intermediate possession
400 APPOINTMENT OF RECEIVER, ETC.

By the Judicature Act (36 and 37 Vict. c. 66), s. 25
(8), “A mandamus or an injunction may be granted,
or a receiver appointed by 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 un-
conditionally or upon such terms and conditions as the
Court shall think just.” 786.

Seana A receiver so appointed is treated as vir-
aemee tually an officer and representative of the
“sion. Court, for the more speedy getting in of
such rents, income, or profits, and the securing the’
same for the benefit of the person entitled to it. In
the case of adverse claims, the appointment of a
receiver does not at all affect the right. The Court
virtually becomes the landlord pro hac vice, and the
receiver, as an officer of the Court, is generally entitled
to the possession ; and his possession is treated as the
possession of the Court, in the first instance, and then
of the party who ultimately establishes his right to it;
and, therefore, is not to be disturbed, even by an eject-
ment under an adverse title, without the leave of the
Court.’ 787.

The receiver cannot proceed in any eject-
‘ment against the tenant, except by the au-

1 St. 2 831, 833, 833 a.

His power,

 

should not be taken by the Court, must be clearly proved ; and,
(5.) That unless the necessity be of the most stringent character,
the Court will not appoint a receiver until the defendant is first
heard in response to the application. See also Kerr on Re-
ceivers, Ist. Am. Edit.
DELIVERY OF CHATTELS. 401

thority of the Court." And when in possession, he has
very little discretion allowed him, but must apply from
time to time to the Court for authority to do such acts
as may be beneficial to the estate? 788.

II. In other cases, the Court affords pro- ,, Hina
tection by an order to pay a fund into Court; inte Court,

or to the
i i i i . art
in others, by directing security to be given, Pitivea, or
or money to be paid over.’ 789. security.

III. The Court will also direct that papers :
and writings in the hands of executors and eae
administrators shall be deposited with the ”°"~
Court for the benefit of those interested, unless there
are other purposes which require that they should be
retained in the hands of the executors or administra-
tors.t 790.

IV. The Court will not ordinarily enter- py peivery
tain suits for the specific delivery of chattels, of chattels.
But where the chattel is of such a nature that the loss
of it could not be fully compensated by damages, the
Court will decree a specific delivery thereof.® 791.

1 $t. $883. ? St. 3 833a. 3 St. 2826, 839-848. 4 St. 2 842.

5 St. 3 708-710; Pusey v. Pusey, Duke of Somerset v. Cookson,
1 Lead, Cas. Eq., 2d ed. 654, 655, et seq.*

 

* McGowin v. Remington, 2 Jones, 56 (12 Penn. Rep.).

34
TITLE V.

Of Protective Equity,
In Sabor of Persons under Disability.
CHAPTER I.

OF INFANTS.

THE care of infants, as persons who are 5, isaic-
not able to protect themselves, belonged to
the Sovereign, as parens patrie; and the correct
opinion seems to be that this prerogative was delegated
to the Court of Chancery from its first establishment ;
and that the jurisdiction did not belong to the Lord
Chancellor only, in virtue of his general power as
holder of the great seal and as keeper of the Royal
conscience ; since the jurisdiction might be exercised
as well by the Master of the Rolls as by the Chancellor,
and since an appeal lay, as in other cases in which the
Court of Chancery had a general jurisdiction, from the
decision of the Court of Chancery to the House of
Lords.’ 792.

By the Judicature Act, 1873 (86 and 37 Vict. c. 66),
s. 34; there shall be assigned, subject as thereinbefore
mentioned, to the Chancery Division of the High Court

5
1 §t. 2 1333-7. And on this subject see Eyre v. Countess of
Shaftesbury, 2 Lead. Cas. Eq., 2d ed. 538, et seg.*

 

* Cowls ». Cowls, 3 Gilman, 436. Also as to guardianship in
the United States, Schouler’s Domestic Rel. 399, et seq.
406 INFANTS.

”

of Justice, the wardship of infants and the care of in-
fants’ estates.

By the same Act, s. 25 (10), “in questions relating
to the custody and education of infants, the Rules of
Equity shall prevail.” 793.

The Supreme Court will appoint a suit-
Appoint’ able guardian to an infant, where there is no
guardians. other, or no other who will or can act, at
least where the infant has property. If the infant has
no property, the Court, perhaps, will not interfere ; not
from want of jurisdiction, but because it cannot exer-
cise its jurisdiction usefully, without having the means
of applying property for the benefit of the infant.
Guardians appointed by the Court are considered as
officers of the Court, and are held responsible to it
accordingly.’ 794.
Removalot Lhe Court will remove a guardian of any
guardians kind, whenever sufficient cause can be shown
for such a purpose, or will regulate and direct the con-
duct of the guardian in regard to the custody and edu-
Contry Cation and maintenance of the infant, and, if
over them. necessary, will even appoint the school where
he shall be educated, and will require security to be
given, if there is any danger of injury to his person or
property.’ 795.

The doctrine of the Court is that children
should be brought up in the religion of their
father. So that when a deceased father was a member
of the Church of England, and the mother, who was

1 St. ¢ 1388. ? St. 3 1339.

Religion.
INFANTS. 407

their guardian, had become one of the Plymouth
Brethren, she was restrained from taking them to a
meeting-house of that sect.’ 796.

By the stat. 36 Vict.c. 12 (24th April, . yor
1873), it is enacted that “ from and after the Chancery

may order

passing of this Act it shall be lawful for the that mother

may have

High Court of Chancery in England or in #¢¢ss 9

and custody

Ireland respectively, upon hearing the peti- ofinfnt

tion by her next friend of the mother of any “°"7°*
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 in-
fant or infants shall be delivered to the mother, and re-
main in or under her custody or control, or shall, if al-
ready 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 further,
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 Sfiall deem proper” (s.1). 797.

The Court will also assist guardians in |

ssistance

compelling their wards to go to the school of guar-
selected by their guardian, as well as in ob-
taining the custody of the persons of their wards, when
they are detained from them.’ 798.

' In re Newbury, L. R. 1 Eq. 431; 1 Ch. Ap. 263.*
2 St. 3 1340.

 

* St. Eq. Jur. 1347e; Schouler’s Dom. Rel. 460.
408 INFANTS.

al In general, parents are intrusted with the
emoval of : ‘ :

children custody and education of their children, on
parents. the natural presumption that the children
will be properly treated, and that due care will be
taken of them, in regard to learning, morals, and re-
ligion. But whenever this presumption is negatived
by the actual state of the case, and a father is guilty of
gross ill-treatment of his infant child, or is living in
habits of gross immorality, or otherwise acts in a man-
ner injurious to the morals or interests of his children, .
the Supreme Court will deprive him of the custody of
his children, and appoint a suitable person to act as
guardian. 799.

Conversion Guardians may change the nature of the
ofthe, property, when it is manifestly for the bene-
Property. fit of the infant, but not otherwise. But
although it has been said that there is no equity in
such a case between the representatives of the infant,
nevertheless, for the purpose of preventing any such
acts of the guardian, in case of the death of the infant
before he comes of age, from changing improperly,
through partiality or otherwise, the rights of the par-
ties, who, as heirs or distributees, would otherwise be
entitled to the property, Courts of Equity hold lands
purchased by the guardian with the infant’s personal
estate, or with the rents and profits of his real estate,
to be personalty, and distributable as such; and on the
other hand, they treat the proceeds arising from the

" St. @ 1341-9; Swift v. Swift, 34 Beav. 266.*

 

* Cowls v. Cowls, 3 Gilman, 436.
INFANTS. 409

sale of real property (as, for example, of timber cut
down on a fee-simple estate of the infant) as real estate.
It is common for guardians to ask the sanction of the
Court to any acts of this sort; and, when the Court
directs any such change of property, it directs the new
investment to be in trust for the benefit of those who
would be entitled to it, if it had remained in its origi-
nal state.’ 800.

Sometimes infants become wards of Court.

. Who are

Properly speaking, a ward of Court is a per- wards of
son who is under a guardian appointed by
the Court. But whenever a suit is instituted in the
Court relating to the person or property of an infant,
although he is not under any general guardian ap-
pointed by the Court, he is treated as a ward of the
Court.’ And even a mere order for maintenance made
without suit constitutes an infant a ward of Court.’
801.

Any act affecting the person or state or |.
property of a ward of Court, unless done affecting

them must

under the express or implied direction of be done
under the

the Court, is treated as a violation of the direction of
authority of the Court, and the offending

party will be arrested for that contempt, and com-
pelled to submit to such order, and to such punish-
ment by imprisonment, as are applied to other cases of

contempt.' 802.

1 St. 3 1357.

2 St. @ 1852; Gynn v Gilbard, 1 Dr. & Sm. 356.

3 In re Graham, L. R. 10 Eq. 530. 4 St. 3 1353.
35
410 INFANTS.

Whenever an infant is a ward of Court
pance(a) and a suit is depending in the Court as to
his property, the Court will direct a suitable main-
tenance for the infant, having a due regard to his
rank, intended profession or employment, property,.
and expectations! And independently of the stat. 23
and 24 Vict. c. 145, s. 26, maintenance will now be
ordered even where the infant is not a ward of the
Court, and not resident within the jurisdiction, if he
has no father, or his father is unable to maintain him.’
803.

Where a legacy is vested, it seems that maintenance
will be ordered, though none is directed by the will,
and though the interest is directed to be accumulated.
And though a sum be directed to be paid periodically
for maintenance, until the time for the payment. of the
portion, the child will be entitled to a proportionate
part during the interval between the last periodical
payment and that time.t And when no maintenance
is given, an infant‘child of the testator is entitled to
the interest even of a legacy contingent on his attain-
ing twenty-one. 804.

The Court has power to charge reversionary prop-
erty of infants with money required for their mainte-

1 St. 2 1854, 2 See St. ¢ 1854, 1354, 1854b-*

3 2 Sp. 462. 42 Sp. 462.

® Chambers v. Goldwin, 11 Ves. 1; Martin v. Martin, L. R.1
- Eq. 369.

 

(a) See stat. 28 and 24 Vict. v. 145, s. 26.
* Schouler’s Dom, Rel. 322, et seq.
INFANTS. 411

nance; even where some of them may never become
entitled to possession.’ 805.

The Court is governed by a regard to the circum-
stances and state of the family to which the infant
belongs, in respect to the allowance of any mainte-
nance at all, and to the amount of such allowance. So
that, although there may be a trust for. maintenance
under which the whole income may be applied, yet
‘the Court will not apply more of it than necessary,
where the infants have other sources of income.? And
if the father is able to maintain the infant out of his
own property, the Court will ordinarily withhold all
allowance from the property or income of the infant
for the maintenance of the latter, even though there
may be a power (as distinguished from a trust), in the
settlement or will, at the discretion of the trustees, to
appoint part of the income for the purpose of his main-
tenance and education.’ But if there is a contract on
marriage amounting to a trust that property shall be
applied for the maintenance and education of the
children, the property must be applied, without ref-
erence to the ability of the father to maintain and
educate them. And in the case of a legacy given by
a stranger, the interest of it may beso given or di-

1 De Witte v. Palin, L. R. 14 Eq. 251.

2 White v. Grane, 18 Beay. 571.*
3 St. @ 1854a, and note; 2 Sp. 462, 466.+

 

* Schouler’s Dom. Rel. 323, e¢ seg. In re Kane, 2 Barb.
Ch. 375.
+ Schouler’s Dom. Rel. 322.
412 INFANTS.

rected to be applied, as to be in substance a gift to the
father, or rather for his benefit! And if the infant is
an eldest son, and the younger children have no pro-
vision made for them, an ample allowance will be de-
creed to him, in order that the younger children may
be maintained. And the Court will act in a similar
way where the father or mother of the infant is in
distress or narrow circumstances.’ 806.

The Court, however, in allowing maintenance, al-
most always confines it within the income of the prop-
erty. But where the property is small, and more
means are necessary for the due maintenance of the
infant, part of the capital will sometimes be directed
to be applied for the purpose. But without the ex-
press sanction of the Court, a trustee or guardian
should not so apply any part of the capital.? 807.

The words “ maintenance, education, and bringing
up,” standing together, have reference to minority
only. But where the interest of a fund is directed to
be applied for the “ maintenance and education” of a
person, though at the time an infant, he is, generally
speaking, entitled to the interest during his life.
“ Education” includes maintenance. Where main-
tenance is given during minority, as a general rule it

1 2 Sp. 466-8.* 2 St. ¢ 1855; 2 Sp. 461, 462.
8 St. 21355; 2 Sp. 461.+

 

x But it is clear that where a fund is given as a mere bounty,
notwithstanding a provision for maintenance, the father, if of
ability, must support the child. See Schouler’s Dom. Rel. and
cases cited,

+ Schouler’s Dom. Rel. 327.
INFANTS, 413

does not cease on the marriage of the child A di-
rection that the testator’s daughter shall reside with
and be maintained by his son, so long as she shall re-
main single, only entitles her to maintenance so long
as he lives, and so long as she chooses to reside with
him.” 808.

Where the income of property is given to the mother
for the maintenance of herself and her children, she is
to receive the whole income, and maintain the children
out of it, so long as they form part of her family ; but
when they -are forisfamiliated, as by marriage, they
lose the right to maintenance.’ 809.

Where infants resident here become en-
titled to personal property, under the decree feed te
of a foreign tribunal, it will be administered fen
for their benefit here, just as any other prop- sie
erty.4 810.

If a man marries a ward of Court, with- ee
out the consent of the Court, even though 2 ward of

the Court

with the consent of the guardian, he, and al] without its
consent.

others concerned in aiding and abetting the
act, are treated as guilty of a contempt of Court; and
even though he was ignorant that she was a ward of
the Court, he is deemed guilty of a contempt.’ 811.
Where the Court appoints a guardian or ,. i;
. ‘ 2 ecogni-
committee in the nature of a guardian, to “nce that

a ward of

1 it 1 Court shall
have the care of an infant, it is accustomed (ovr shal

to require the guardian or committee to give

1 2 Sp. 460; Carr v. Living (No. 2), 33 Beav. 474.
2 Wilson v. Bell, L. R. 4 Ch. Ap. 581.
3 2 Sp. 461. 4 2Sp. 13, 14. 5 St. 2 1858.
414 INFANTS.

a recognizance that the infant shall not marry without
the leave of the Court; so that if the infant should
marry even without the knowledge or neglect of the
guardian or committee, yet the recognizance would in
strictness be forfeited, whatever favor the Court might
think fit to show to the party, when he should appear
to have been in no fault.’ 812.

Where there is reason to suspect an im-
tion of in- provident marriage without its sanction, the
riage of 2 Court will, by an injunction, not only inter-

ward of . a
Court,and dict the marriage, but also all eommunica-

Bier tions between the ward and the admirer; and
if the guardian is suspected of any connivance, the
Court will substitute a committee in his stead? 813.
In case of an offer to marry a ward of
ona ward Court, the Court will inquire and ascertain
Se ost ethiar the match is a suitable one, and
what settlement ought to be made on the marriage ;
and it is not competent to the parties, by delaying the
marriage until the wife has come of age, to defeat the
settlement approved by the Court.’ And when a man
has been committed for a contempt in marrying a
ward of Court without its sanction, he will not be dis-
charged until he has actually made such a settlement
as shall have been deemed proper by the Court. And
this will be the case even where the ward has subse-
quently come of age, and is ready to waive her right
to a settlement; for the Court will protect her against

1 St. 3 1859, # St. 2 1360, 5 St. 2 499.
INFANTS. 415

her own indiscretion and the undue influence of her
husband.’ 814.

Where a settlement is executed a few days after the
lady, who has been a ward of Court, has attained her
majority, and is pursuant to proposals made a very
short time before she attained her majority, and is such
that the Court would not approve thereof, it will be
rectified, if at least it was the work of her friends, and
she was not made to understand its effect, and called
upon to exercise her judgment upon it.’ 815.

If a ward of Court marries a few days after majority,
the Court will decline to order her fortune to be paid
out of Court, on her consent, and will refuse to do
more than order payment of the income to the husband
during their joint lives, or until further order, without
prejudice to any question, and with liberty to apply.
816.

The Court has no power to order a settle- .

: ettlement
ment of the property of an infant not being on an in-
a ward of Court, who has married after at- nota ward
taining the age at which she is capable of
contracting a marriage.* 817.

1 St. 3 1361.* 2 Money v. Money, 3 Drew. 256.

3 Biddle v. Jackson, 26 Beav. 282.
* In re Potter, L. R. 7 Eq. 484.

 

* The doctrine of the English Courts of Chancery in regard to
interference in securing proper marriage for infant wards or pre-
venting improper ores, does not obtain to the same extent in this
country, and may be said to have no application to Courts of Chan-
cery in thiscountry. See Jeremy Eq. Jur. B. 1 Ch. 5, 2 33, pp. 230,
231; Kenny v. Udall, 5 Johns. Ch. 464, 473. Schouler’s Dom.
Rel. 516, 517.
416 INFANTS.

cineca The Court will exercise a vigilant care
‘ontro) . :
over guar- over infants in the management of their

dians and ‘ - ,
others for property ; and will also aid and protect in-

the benefit

ofinfanls. fants against other persons than those who
are guardians; such, for instance, as intruders upon
the estate.’ 818.

eeeneie: The Court has no jurisdiction to order the
forges?” cancellation of articles of apprenticeship and
aap the return of a portion of the premium, on
the ground of the wrongful refusal of the master to
continue to instruct his apprentice in his trade, accord-

ing to his agreement.’ 819.

1 St. 2 1356.(a) 2 Webb v. England, 29 Beav. 44.*

 

(a) On the subject of infants, see 1 Will. IV, cc. 60, 65; 13 and
14 Vict. c. 60; 15 and 16 Vict. v. 55; 19 and 20 Vict. c. 120; 37
and 38 Vict. c. 62.

* St. Eq. Jur. 478.
MARRIED WOMEN. 417

CHAPTER II.
OF MARRIED WOMEN.

At the Common Law, the being or legal existence
of the wife, for almost all purposes, is COn- Gomon
sidered as merged in that of the husband.’ Mw doe-

But Courts of Equity, in many respects, Division of

the subject

; sagt 2 of the doc-
treat husband and wife as distinct persons.’ Pines or

And this distinctness of interest has been Eavily 8s
greatly extended by the stat. 33 and 34 "°™®™
Vict. c. 93. 820.

In illustration of this, let us consider,

I. The powers which they have, in Equity, of con-
tracting with, and giving and granting to, each other.

II. The wife’s pin-money and paraphernalia.

III. The wife’s separate estate. ~

IV. The equity of the wife to a settlement or main-
tenance out of her own property.

V. Some points respecting deeds of separation. 821.

1 See St. 2 1367. 2 St. 2 1368.
A418 MARRIED WOMEN..

SECTION I.

THE POWERS WHICH HUSBAND AND WIFE HAVE IN
EQUITY OF CONTRACTING WITH, AND GIVING AND
GRANTING TO, EACH OTHER.

J. Ar Law, contracts made between husband and
wife before marriage, are extinguished by
tefore the marriage, if they are for debts or things
mans due in presenti, or at or on a future time
or event which may occur during, and not after the
determination of, the coverture. But Courts of
Equity, although they generally follow the same doc-
trine, will enforce such contracts, where it would be
in furtherance of the manifest intention and object of
the parties to do so; as in the case of an agreement by
husband and wife for the mutual settlement of their
estate, or of the estate of either of them on the other,
on the marriage, even without the intervention of
trustees.’ 822.
Fis II. Contracts made between husband and
tracts after Wife, after marriage, are a mere gullity at
nharriage.

Common Law; but under peculiar circum-
stances, they will be enforced in Equity where they
are of a reasonable nature. Thus, if the husband
should contract with his wife, for good reasons, that
she should separately possess and enjoy property be-
queathed to her, the contract would be upheld in

1 St. @ 1370, 1871.
MARRIED WOMEN, 419

Equity.’ And by the stat. 33 and 34 Vict. c. 93, s.
11, it is enacted that “a married woman ‘may main-
tain an action, in her own name, for the recovery of
any property belonging to her before marriage, and
which her husband shall, by writing under his hand,
have agreed with her shall belong to her after mar-
riage as her separate property.” So the wife may
become a creditor of her husband ; and her rights, as
such, will be enforced against him and his representa-
tives. Thus, if a wife should raise money out of her
estate, to answer his necessities, whatever be the mode
adopted to carry that purpose into effect, she would in
Equity be entitled to reimbursement out of his estate. *
But a contract by the husband to transfer his rights
and duties in reference to his children to his wife, is
contrary to public policy, and will not be enforced ;*

1 See St. 2 1872; Hewison v. Negus, 16 Beav. 594; Anderson
v. Abbott, 23 Beayv. 457.*
2 St. 4 1373.
. § Vansittart v. Vansittart, 4K. & J.62; Walrond v. Walrond,
- Johns. 18.

 

* Bleeker v. Bingham, 3 Paige, Ch. 246; Tyler Inf. and Cov.
329, 330. A direct gift of property by the husband to the wife is
void at Law, but will be enforced in Equity so far as they are con-
cerned, and to constitute a voluntary gift between parties, it must
be complete, or Courts of Equity will not enforce it; the intention
to give must clearly appear, and that intention must have been
executed. Schouler’s Dom. Rel. 283, 284, and cases cited.

+ And a certain portion of the earnings and private property
of a wife may be kept distinct in Equity, and secured against a
husband and his creditors. and purchased in the name of a
wife with her money, whether in her possession or her husband’s,
is protected from her husband and his creditors. If a husband
420 MARRIED WOMEN.

unless his conduct has been such, that the Court ¢
Chancery would remove the children from his custody
823.

ste ihe III. Gifts and grants too, whether expre:
and grants oy implied, by a husband to his wife, afte
riage. marriage, although ordinarily void at Lav
will be enforced in Equity, if they are of a reasonab]
nature, and there is no ground to suspect fraud. Thu:
gifts made by the husband to the wife to purchas
clothes or personal ornaments, or for her separate ex
penditure, and personal savings and profits made b
her in her domestic management which the husban
allows her to apply to her own separate use, will k
held to vest in her, as against her husband, but not <
against his creditors, an unimpeachable right of prox
erty therein, so that they may be treated as her sepz
rate estate, if such gifts are established by clear an
incontrovertible evidence.’ If a husband makes pres
ents of chattels to his wife, even verbally, and withou
words of separate use, her right to them will be er
forced against his residuary legatee, if the gift is prove
by the testimony of any one who heard him use wor
of gift, or to whom he afterwards stated that he ha
given the chattels, or that they were hers. But th

’ Swift o. Swift, 34 Beav. 266. 2 St. 3 1874, 1375.

 

repays money borrowed of his wife, or conveys to her property }
satisfaction of a just claim, her title will be supported. St. E
Jur. 3 1372, note, and authorities cited. See also for other it
stances in which Courts of Equity have sustained a postnupti
contract in favor of the wife and against creditors, Schoule:
Dom. Rel. 282, note 1, and cases cited.
MARRIED WOMEN. 421

Court will not act upon the unsupported oath of the
wife.’ 824.

Tf a husband places money in a bank in the name
of his wife, without any indication that he thereby in-
tends an advancement or gift to, her separate use, it
will only amount to a contract between him and the
bankers that they shall or will honor the checks of
either husband or wife; and the money will remain
the property of the husband.’ 825.

SECTION II.
PIN-MONEY AND PARAPHERNALIA.

I. Prn-MonEy is not deemed to be an ab- , »;,.
solute gift; it is not considered like money ™"°y-
set apart for the sole and separate use of the wife
during coverture ; but it is a sum payable by the hus-
band to the wife, in virtue of a particular arrangement,
and to be applied by the wife in attiring her person in
a manner suitable to the rank of her husband, and in
defraying other personal expenses—a sum allowed to
save the trouble of a constant recourse by the wife to
the husband, in order to meet her ordigary personal
expenses.’ 826.

1 Grant v. Grant, 34 Beav. 623.

? Lloyd v. Pughe, L. R. 8 Ch. Ap. 88.
5 See St. @ 1875a, and note; 2 Sp. 500, 501.*

 

* Schouler’s Dom. Rel. 240.
422 MARRIED WOMEN.

Pao? Such being the peculiar nature of t]
thereof. provision, the wife cannot make a sweepi
disposition of it, as she can of her separate estate. A:
Courts of Equity refuse to call upon the husband
pay beyond the arsears of a year, although stipulat
for by a marriage settlement. For, setting aside t
presumed satisfaction by acquiescence, the money
meant to dress the wife during the year, so as to ke
up the dignity of the husband, and not for the pu
pose of accumulation. And, on the same princip.
the personal representatives of the wife are n
allowed to make any claim even for arrears of a yea
827.
ae pie: II. The wife’s paraphernalia are person
Phernali apparel and ornaments of the wife, suitak
to her rank and condition in life.’ Old family jewe
though worn by the wife, do not constitute part of h
paraphernalia, unless she has acquired them by gift |
bequest.’ 828.
Rueottaw _ “Law, the husband may, in his lifetim
respecting but not by his will, dispose of the wife
paraphernalia, with the exception of nece
sary apparel. And they are liable to the claims |
Ruibor creditors, with the like exception. And
Pheee tie the articles were given by the husband, eith:
by the before or after marriage, Courts of Equi
mevans fully recognize this right of the husband ar

1 St. ¢ 1875a, and note; 2 Sp. 501; 1 Lead. Cas. Eq., 3d e
479,.*

* St. 3 1876. 53 Jervoise v. J ervoise, 17 Beay. 566.

 

* Tyler Inf. & Cov. 297, et seq.
MARRIED WOMEN. 423

his creditors, instead of treating the articles as absolute
gifts to the wife, as her own separate. property;
although, in the case of creditors claiming against the
assets of the husband, the personal assets of the hus-
band will be marshalled against his representatives in
favor of the widow. But if the articles were |. ynere
bestowed on the wife by any one else, they siven by
will be deemed absolute gifts to her separate °°

use; and then, if received with the consent of the hus-
band, neither he nor his creditors can dispose of them.’
829.

SECTION III.
THE WIFE'S SEPARATE ESTATE.(q@)

I. Wir regard to the means of acquiring 3, yfeans of
a separate estate— acquiring it.
1. Whenever real or personal estate is 1, py gitt,
given, granted, devised to, or settled on a ¥viss, or
; : ‘ : ttlement.
woman, either with or without the interven- “"°"°"
tion of trustees, whether after marriage, or as a pro-

vision on marriage, or not in contemplation of imme-
1 St. ¢ 1376, 1377; 1 Lead. Cas. Eq., 3d ed. 480.*

 

(a) On this subject see Hulme v. Tennant, 1 Lead. Cas. Eq., 2d
ed. 394, e¢ seq.

For discussion of the American doctrine in the different States,
see Schouler’s Dom. Rel. 200, et seq.

* Schouler’s-Dom. Rel. 174, 175.
424 MARRIED WOMEN.

diate marriage, and whether by her husband or by
mere stranger, it will be deemed separate estate, if i
clearly appears that the property was intended for’ he
separate use.’ Thus, a bequest to a married womatr
“for her own use, and at her own disposal,” has bee
held to be a bequest to her separate use. So mone
paid to the husband “for the livelihood of the wife
has been construed a gift to her separate use.” Bu
where the expressions do not clearly show that th
husband is to be excluded from his marital rights, th
wife will not take for her separate use. Thus, in th
case of a direction to pay money into her own prope
hands “for her own use and benefit,” it has been hel
that although the money is to be for her own use, ye
there is nothing in that inconsistent with its being sul
ject to the husband’s marital rights. And a direct gi
to a woman who is either single or will become di
covert on the testator’s death, for her sole use an
benefit, does not create a separate estate‘ unless aide
by other expressions in the will or other circumstance:
such as the fact that the instrument shows that tl

1 St. 2 1380, 1881, 1884; 2 Sp. 502, 507-511; Goulder v. Cami
1D. F. & J. 146*

2 St. 31382; 2 Sp. 507.4

3 St. 31383; 2 Sp. 508-511. See also Spirett v. Willows, 3.
J. &S. 293.

4 Gilbert v. Lewis, 1 D. J. & S. 38; and see Lewis v. Mathev
L. R. 2 Eq. 177.

 

* Tyler’s Inf. and Cov. 2 300, 301.
t+ Schouler’s Dom. Rel. 202, 203.
{ Schouler’s Dom. Rel. 200, e¢ seg.
MARRIED WOMEN. 425

marriage of the person spoken of was contemplated by
the author of it.’ But a-gift, by way of trust, for her
sole benefit, to a married woman, does create a. sepa-
rate estate.’ 830.

2. By the custom of London a married 4 5, cary.
woman may carry on trade within the city, 238.002

as a sole trader, and be liable as such. But, P2c¢ir.

independently of any such custom, if it is $i" Es?

agreed between the husband and wife, before [27oro"mnus-
marriage, that the wife shall be allowed to "***
carry on a separate trade, such an agreement will be
maintained at Law, against the husband; and being an
agreement for valuable consideration, namely, that of
the intended marriage, it will also be maintained at
Law against his creditors. And if such an ,
y agree-

agreement is made after marriage, and trus- ao ee
tees are interposed, it will be maintained at

Law against the husband; and if it is on valuable con-
sideration, against his creditors also; for, in such case,
the wife’s trustees will, at Law, be entitled to the
property assigned, and to the increase and profits -
thereof, and she will be considered at Law as their
agent, and her possession as their possession. The
trustees, however, will be regarded in Equity as hold-
ing such property, and receiving the increase and
profits thereof, for the sole and separate use of the
wife. And thus in such cases where trustees are in-
terposed, the beneficial interest in the property, and
the increase and profits thereof, are secured to the wife

1 In re Tarsey’s Trust, L. R. 1 Eq. 561.

2 Green v. Britton, 1 D. J. & 8. 649.
36
426 MARRIED WOMEN.

by the joint operation of Law and Equity. By the
operation of Law, the legal estate is vested in the trus-
tees, and taken out of the power of the husband. By
the operation of Equity, the beneficial interest is vested
in, and secured to, the wife, against her husband, and,
if the agreement is for valuable consideration, against
his creditors also. But even where there are no trus-
tees interposed, such an agreement has the force, in
Equity, of creating a separate estate for the wife, and
securing it against the husband ; and, if the agreement
is for valuable consideration, against his creditors also.

And this is the case even though it be a mere
though the implied agreement. So that if the husband
temerly should permit his wife, after the marriage,
ao to carry on business on her sole and separate
account, all her earnings in the trade will be her sepa-
rate property. And if a husband should desert his
wife, and she should be enabled, by the aid of her
friends, to carry on a separate trade, her earnings in
such trade will be enforced in Equity against her hus-
band, independently of the stat. 20 and 21 Vict. c. 85,
ss. 21, 25.1 831.

1 See St. 2 13885-1387; 2 Sp. 503.*

* The rule seems to be well established in the United States
that the husband, in pursuance of a marriage contract, antenuptial
or postnuptial, may confer upon his wife the right to trade for her
exclusive benefit. Schouler’s Dom. Rel. 245, et seg. But a business
carried on by the husband and wife in co-operation, his labor and
skill meeting with hers, must be considered as his business so far
as his creditors are concerned. Id. 247. The recent Married
Woman’s Acts in the United States have enlarged and more fully
established the wife’s power to trade on her own account. The
MARRIED WOMEN. 427

3. By the stat. 20 and 21 Vict. c. 85,8. 5 ihn
21, and 21 and 22 Vict. c. 108, s. 8, if a, order of

protection

nits is deserted by her msbardl, she may ehikephan

obtain an order of protection of hee property “°™
against her husband and his creditors; and by s. 25
of the former Act, if jydicially separated, she is to be
deemed a feme sole as regards her property ;(a) and
in case of subsequent cohabitation, it shall be held to
her separate use, subject to any agreement. 832.

Where the property is vested in trustees, care must
be taken that the negotiations are not carried on in the
name of the wife, as by taking notes or other securities
‘in her name; for then they will, at Law, be held to
belong to the husband, although it will be otherwise
in Equity.’ 833.

4, By the stat. 33 and 34 Vict. c. 98, it is itor
enacted as follows : the stat. 33

“The wages and earnings of any married ¢: oe
woman acquired or gained by her after the Earnings of
passing of this Act in any employment, oc- women to
cupation, or trade in which she is engaged or thelrown
which she carries on separately from her hus- P"°?*"%"
band, and also any money or property so acquired by
her through the exercise of any literary, artistic, or
scientific skill, and all investments of such wages,

earnings, money, or property, shall be deemed and

1 St. 2 1386.

 

. American system of positive law on the rights of married women
now in force, is admirably outlined and briefly summed up in
Schouler’s Dom. Rel. 212, note.

(a) See In re Insole, L. R. 1 Eq. 470.
428 MARRIED WOMEN.

taken to be property held and settled to her separate
use, independent of any husband to whom she may be
married, and her receipts alone shall be a good dis-
charge for such wages, earnings, money, and property ”
(s.1). 834.

Ah “ Notwithstanding, any provision to the
savings contrary in the Act of the 10th year of
inarvied Geo. IV, chap. 24, enabling the Commis-

sioners for the Reduction of the National
Debt to grant life annuities and annuities for terms of
years, or in the Acts relating to savings banks and
post-office savings banks, any deposit hereafter made
and any annuity granted by the said Commissioners
under any of the said Acts in the name of a married
woman, or in the name of a woman who may marry
after such deposit or grant, shall be deemed to be the
separate property of such woman, and the same shall
be accounted for and paid to her as if she were an un-
married woman; provided that if any such
deposit is made by, or such annuity granted
to; a married woman by means of moneys of her hus-
band without his consent, the Court may, upon an
application under sect. 9 of this Act, order such deposit
or annuity or any part thereof to be paid to the hus-
band” (s. 2). 835.
aAsinanidea “Any married woman, or any woman
property in About to be married, may apply to the
mefanes. Governor and Company of the Bank of
England, or to the Governor and Company of the
Bank of Ireland, by a form to be provided by the
governor of each of the said banks and companies for

Proviso.
MARRIED WOMEN. 429

that: purpose, that any sum forming part of the public
stocks and funds, and not being less than £20, to which
the woman so applying is entitled, or which she is
about to acquire, may be transferred to or made to
stand in the books of the governor and company to
whom such application is made in the name or intended
name of the woman as a married woman entitled to
her separate use, and on such sum being entered in the
books of the said governor and company accordingly
the same shall be deemed to be the separate property
of such woman, and shall be transferred and the divi-
dends paid as if she were an unmarried woman; pro-
vided that if any such investment in the funds is made
by a married woman by means of moneys of her hus-
band without his consent, the Court may, upon an ap-
plication under sect. 9 of this Act, order such invest-
ment and the dividends thereof, or any part thereof, to
be transferred and paid to the husband” (s. 3). 836.
“Any married woman, or any woman :

about to be married, may apply in writing cat

to the directors or managers of. any incorpo- Pjorntetock
rated or joint-stock company that any fully acs

paid-up shares, or any debenture or debenture stock,
or any stock of such company, to the holding of which
no liability is attached, and to which the woman so
applying is entitled, may be registered in the books of
the said company in the name or intended name of
the woman as a married woman entitled to her sepa-
rate use, and it shall be the duty of such directors or
managers to register such shares or stock accordingly,
and the same upon being so registered shall be deemed
430 MARRIED WOMEN.

to be the separate property of such woman, and shall
be transferred and the dividends and profits paid as if
she were an unmarried woman; provided that if any
such investment as last mentioned is made by a mar-
ried woman by means of moneys of her husband with-
out his consent, the Court may, upon an application
under sect. 9 of this Act, order such investment and
the dividends and profits thereon, or any part thereof,
to be transferred and paid to the husband” (s. 4). 837.
“Aeaeried “ Any married woman, or any woman
property in About to be married, may apply in writing
asociety. to the committee of management of any in-
dustrial and provident society, or to the trustees of
any friendly society, benefit building society, or loan
society, duly registered, certified, or enrolled under the
Acts relating to such societies respectively, that any
share, benefit, debenture, right, or claim whatsoever
in, to, or upon the funds of such society, to the hold-
ing of which share, benefit, or debenture, no liability
is attached, and to which the woman so applying is
entitled, may be entered in the books of the society in
the name or intended name of the woman as a mar-
ried woman entitled to her separate use, and it shall
be the duty of such committee or trustees to cause the
same to be so entered, and thereupon such share, bene-
fit, debenture, right, or claim shall be deemed to be
the separate property of such woman, and shall be
transferable and payable with all dividends and profits
thereon as if she were an unmarried woman ; provided
that if any such share, benefit, debenture, right, or
claim has been obtained by a married woman by
MARRIED WOMEN. 431

means of moneys of her husband without his consent,
the Court may, upon an application under sect. 9 of
this Act, order the same and the dividends and profits
thereon, or any part thereof, to be transferred and
paid to the husband” (s. 5). 838.

“ Nothing hereinbefore contained in refer-
ence to moneys deposited in or annuities sngneysis
granted by savings banks or moneys in- eeaiore
vested in the funds or in shares or stock of
any company shall as against creditors of the husband
give validity to any deposit or investment of money, of
the husband made in fraud of such creditors, and any
moneys so deposited or invested may be followed as if
this Act had not passed” (s. 6). 839.

“Where any woman married after the

passing of this Act shall during her marriage ehccea

become entitled to any personal property as mami
next of kin or one of the next of kin of an “""™
intestate, or to any sum of money not exceeding £200
under any deed or will, such property shall, subject
and without prejudice to the trusts of any settlement
affecting the same, belong to the woman for her sepa-
rate use, and her receipts alone shall be a good dis-
charge for the same” (s. 7). 840.

“ Where any freehold, copyhold, or custo- , on
maryhold property shall descend upon any erty com-

‘ . ing toa
woman married after the passing of this Act married
6 2 5 woman.
as heiress or co-heiress of an intestate, the
rents and profits of such property shall, subject and
without prejudice to the trusts’ of any settlement affect-

ing the same, belong to such woman for her separate
432 MARRIED WOMEN.

use, and her receipts alone shall be a good discharge
for the same” (s. 8). 841.
How que  ““1n any question between husband and
ownership se as to property declared by this Act to
totes.» be the separate, property of the wife, either
i party may apply by summons or motion in
a summary way either to the Court of Chancery in
England or Ireland, according as such property is in
England or Ireland, or in England (irrespective of the
value of the property) the judge of the county court of
the district in which either party resides, and thereupon
the judge may make such order, direct such. inquiry,
and award such costs as he shall think fit; provided
that any order made by such judge shall be subject to
appeal in the same manner as the order of the same
judge made in a pending suit or on an equitable plaint
would have been, and the judge may, if either party
so require, hear the application in his private room”
(s. 9). 842.
Basi “ A married woman may effect a policy of
aT insurance upon her own life or the life of her
ofinsur- “ husband for her separate use, and the same
and all benefit thereof, if expressed on the
face of it to be so effected, shall inure accordingly, and
the contract in such policy shall be as valid as if made
with an unmarried woman” (s. 10, Ist par.). 843.
; “A policy of insurance effected by any
As to insur- ‘ :
ance of a married man on his own life, and expressed
benefit of upon the face of it to be for the benefit of
his wife or of his wife and children, or any
of them, shall inure and be deemed a trust for the
MARRIED WOMEN. 433

benefit of his wife for her separate use, and of his
children, or any of them, according to the interest so
expressed, and shall not, so long as any object of the
trust remains, be subject to’ the control of the husband
or to his creditors, or form part of his estate. When
the sum secured by the policy becomes payable, or at
any time previously, a trustee thereof may be appointed
by the Court of Chancery in England or in Ireland,
according as the policy of insurance was effected in
England or in Ireland, or in England by the judge of
the county court of the district, or in Ireland by the
chairman of the Civil Bill Court of the division of the
county in which the insurance office is situated, and
the receipt of such trustee shall be a good discharge to
the office. If it shall be proved that the policy was
effected and premiums paid by the husband with in-
tent to defraud his creditors, they shall be entitled to
receive out of the sum secured an amount equal to the
premiums so paid” (s. 10, 2d par.). 844.

“ A married woman may maintain an ac- yarried wo-
tion in her own name for the recovery of any thaintain
wages, earnings, money, and property by *"*4°™
this Act declared to be her separate property, or of any
property belonging to her before marriage, and which
her husband shall, by writing under his hand, have
agreed with her shall belong to her after marriage as
her separate property, and she shall have in her own
name the same remedies, both civil and criminal,
against all persons whomscever, for the protection and
security of such wages, earnings, money, and property,

and of any chattels or other property purchased or ob-
37
434 MARRIED WOMEN.

tained by means thereof for her own use, as if such
wages, earnings, money, 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, money, chattels, and property to be
her property” (s. 11). 845.
ar Swiss II. As to the wife’s power of disposing of
owerof — her separate estate, all prenuptial agreements

isposing of

te i i
separa for securing to the wife separate personal

whereithas property, will confer on her, in Equity, un-
‘prem. less the contrary is expressly stipulated or
pee implied, the same power of disposing of such
separate property, by will or otherwise, as an unmar-
ried woman would have.’ 846.

Fics Bake With respect to her power of disposing of
hasarisen her separate property, where no trustee is

from a post- | :
nuptial interposed, and it rests merely on a post-

ofthe hus nuptial agreement of the husband, if the

property consists of personalty, or an estate
for life in real property, her disposal thereof can affect
her husband’s rights alone; and therefore his assent is
conclusive upon him. And if real property is settled
upon her in fee in trust for her separate use, without
any special power of appointment, she may dispose of
or charge the rents and profits accruing during her life.
But it was formerly held that she could only dispose
of the inheritance by the ordinary means by which
married women dispose of their real property ; because,

1 St. 21390; 2 Sp. 506, 507.*

 

* Tyler’s Inf. and Cov. 2 306, 307.
MARRIED WOMEN. 435

in regard to real estate, her own heirs are or might be
affected in their interest by descent.’ 847.

And where an estate of inheritance is given an
her by a third person, during the coverture, given by a
or as it seems, before coverture, for her sepa- can bates
rate use, it was formerly held that she could tha saver
not dispose of it, except by these means (that ae
is, by a deedduly acknowledged under the Fines and
Recoveries Act), or under a power; but that if such a
power is expressly given her, she might dispose of the
estate, even though there are no trustees interposed.’
848.

, It has ‘been subsequently held, however, that she
may, like a feme sole, by virtue of her ownership, dis-

pose, by deed or will, of an estate of inheritance settled

1 St. 2 1391; 2 Sp. 504, 513; and see remarks of V.-C. Kinder-
sley, in Moore v. Morris, 4 Drew. 37-8.*

2 St: @ 1888, 1392; 2 Sp. 504, 507; Harris v. Mott. 14 Beay.
169; Lechmere v. Brotheridge, 32 Beav. 353.

 

* The weight of American authorities, where property is settled
to the separate use of a feme. covert, is that she is to be regarded as
a feme sole as to such separate estate to the extent of her disposition
of it without assent of her trustee, unless she is specially restrained
by the instrument under which she acquires such separate estate,
and although a particular mode of disposition be pointed out in
the instrument, it will not preclude her adopting another mode
unless there are negative words restraining her power, except in
the very mode pointed out. Schouler’s Dom. Rel. 227; Tyler’s
Inf. and Coverture, 3 314, and authorities there cited; St. Eq. Jur.
1832a, note ; Methodist Episcopal Church v. Jacques, 1 Johns, Ch.
450; 3 Ib. 77.
436 MARRIED WOMEN.

to her separate use, even though a special power of
appointment be given her.’ 849.

Where personal property, whether in possession or
reversion, or a life interest in real property, is given
by a third person, for the separate use of a married
woman, she has, in effect, a full power to dispose of it,
unless, from the words of the gift, it appears, beyond
reasonable doubt, to have been the inténtion of the
giver that this absolute power should not exist.’ 850.

; A mere prohibition of alienation or antici-
Restrictions 5 e A i.
against, == pation 18 void against a: ana, OF 3 ‘seo nalt
or anticipa- while she is unmarried.’ And it is void
when annexed to a gift of real estate in fee
or for life to a woman, even though at the time mar-
ried, if such gift is not for her separate use." Buta
gift either of real estate, whether in fee or for life, or
of personal estate, to a woman for her separate use,
even though she be unmarried at the time, may be
accompanied by restrictions against alienation or an-
ticipation.» These, however, will not be inferred from
any ambiguous expressions; they must either be con-
tained in express words or be deducible by plain im-
plication.® 851.

1 Taylor v. Meads, 34 L. J. (Ch.) 203; Pride v. Bubb, L. R. 7

Ch. Ap. 64.

2 See St. 2 1393, 1394; 2 Sp. 513; Lechmere v. Brotheridge, 32
Beav. 353.

3 See 2 Sp. 520. 4 See 2 Sp. 521.

5 St.  1382a, 1384; 2 Sp. 511, 521, 522.

8 See 2 Sp. 512, 522; and remarks of V.-C. Kindersley, in
Moore v. Morris, 4 Drew. 37.*

 

* Schouler’s Dom. Rel. 219.
MARRIED WOMEN. 437

The separate-use clause, either with or
without a restriction against anticipation, ALappueate:
will be confined to the then existing or then ana restric.
intended coverture, or will be also applied ntcipa- =
to other covertures, according to the apparent one
intention.’ If it appears to have been intended that
every husband shall be excluded, and that the clause
against anticipation shall operate during every succes-
sive coverture, in such case, although the woman,
while single, or when and as often as she becomes a
widow, has the absolute dominion over the property,
yet if she do not dispose of the property so as to put
an end to the trust, and she marry again, the separate-
use clause and the restriction against alienation will be
revived during such and every other subsequent cover-
ture, so long as the property is held upon the original
trust.’ 852.

A Court of Equity has no power to release a sepa-
rate estate from a restraint on anticipation or aliena-~
tion, even where it would manifestly be for the benefit
of the married woman ; as where a legacy of consider-
able amount is given to her on condition that she con-
vey away a separate estate of inconsiderable value.’
853.

Where the wife bestows her separate prop-
erty upon her husband, Courts of Equity husband by

he wife.
examine the transaction with an anxious

19 Sp. 524; In re Gaffee, 1 Mac. & G. 541; Moore v. Morris,
4 Drew. 38; Hawkes v. Hubback, L. R. 11 Eq. 5.

2 2 Sp. 524.

® Robinson v. Wheelwright, 21 Beav. 214; 6 D. M. & G. 535.
438 MARRIED WOMEN.

dread of undue marital influence; and if they are re-
quired to give sanction or effect to it, they will ex-
amine the wife in Court, and adopt other precautions
to ascertain her unbiassed wishes.’ 854.

Where the husband, with the consent of
eh ot the wife, is in the habit of receiving the in-
me mmeom’ come of her separate estate, it is regarded
as showing her voluntary choice thus to dispose of it
for the benefit of the family; and separate money of
the wife paid to the husband or placed to his account
by her authority or with her concurrence, cannot be
recalled.” And the income of separate estate, where
the wife is of unsound mind, will be paid to the hus-
band for her support, if he is unable to maintain her.’
855.

IIL Lia- III. As to the liability of the wife’s sepa-
sepazate Yate estate to her contracts, debts, and charges
een (except under the stat. 20 and 21 Vict. c.
" 85, s. 26, which relates to women judicially separated),
a woman cannot render herself or her property liable,
at Law, for any contract, debt, or other charge created
by her during the coverture, not even for necessaries.
But a married woman having separate estate (except
so far as she is restrained from anticipation), being
considered in Equity as a feme sole, as regards the
separate estate, with respect to the capacity of enjoying
it, she is likewise considered as a feme sole with respect

1 St. 21395; 2 Sp. 514.

St. 2 1396; 2 Sp. 514; 1 Lead. Cas. Eq., 2d ed. 411; Caton ».
Rideout, 1 Mac. & G. 603; Gardner v. Gardner, 1 Gif. 126,
3 2 Sp. 525.
MARRIED WOMEN. 439

to the capacity of charging the estate with debts or en-
gagements. No personal decree, however, can be made
against her; the Court can only affect her separate
estate in the hands of her trustees; she cannot bind
her person at all, or her property generally, but only
her separate property.’ This will be held liable for
all the debts, charges, and incumbrances which she
expressly charges, or which, judging from the nature
thereof, it may be fairly inferred that she intended, or
which she ought to be deemed to have intended, to
charge on her separate estate, and for her breaches of
trust, except so far as she is prevented by being re-
strained from anticipation.” And hence, if she gives
a promissory note, or an acceptance, or a bond to pay
her own debts, or if she joins in a bond with her hus-
band to pay his debts, without reference to her separate
estate, it shall be intended as an application pro tanto
of her separate estate ; because the security must have
been executed with the intention that it should operate’
in some way, and it can have no operation except as
against her separate estate. And if she employs a
lawyer, upon her own responsibility, or an agent to
raise money on the credit of her name, her separate

* St. @ 1379, and note, and 1400, note; 2 Sp. 324, 325, 504, 515-
518; see remarks of Kindersley, V.-C., in Vaughan ». Vander-
stegen, 2 Drew. 179-184; Blatchford v. Woolley, 2 Dr. & Sm.
204.

2 Clive v. Carew, 1 Johns. & H.199; and see Johnson v. Galla-
gher, 3D. F. & J. 494; In re Leeds Banking Co., L. R. 3 Eq.
781; Picard v. Hine, L. R. 5 Ch. Ap. 274; McHenry ». Davies,
L. R. 10 Eq. 88; London Chartered Bank of Australia v. Lem-
priére, L. R. 4 P.C. 572. . =a)”
440 MARRIED WOMEN.

estate will be liable, from the nature of the engage-
ment. But it would seem that her separate estate
would not be liable for debts of an ordinary character,
for which she gives no security, unless, at least, she is
divorced or judicially separated from her husband.
For she may, and in general must, be presumed to
have intended that these should be paid by her hus-
band. If, indeed, the contrary doctrine were held, a
wife who has a separate estate would in many cases be
disinclined to take upon herself her ordinary domestic
duties, fearing lest her separate estate should be ex-
hausted by defraying the ordinary expenses of the
house; or the creation of a separate estate would often
be rendered unavailing, by her encountering that risk.
And in no case will the Court charge the corpus of
the separate estate in respect of her general obliga-
tions. It has been held that the separate estate is not

1 See St. ? 1398-1401, and notes; 2 Sp. 515, 516, and notes;

McHenry v. Davies, L. R. 10 Eq. 88; London Chartered Bank of
Australia ». Lempriére, L. R. 4 P. C. 572.*

 

* The American doctrine of the wife’s power to charge her
separate estate, independently of the married women’s acts, has
fluctuated somewhat as have the English cases. Fora full discus-
sion of the liability of a married woman’s separate estate for her
debts, etc., in this country, see Schouler’s Dom. Rel. 227, et seq. ;
also Hulme v. Tennant, 1 White and Tudor’s Lead. Cas. Eq., 4th
Am. ed., part ii, 735, et seq. and authorities there considered.

“The principle adopted by some of the Courts of this country in
regard to the power of a feme covert over her separate estate, is in
many respects opposite to that which prevails in England. For
while the English cases hold that she is, in respect to her separate
estate, to be regarded as a feme sole, with all the powers which
belong to that character, and that her note or bond, or other obli-
‘ MARRIED WOMEN, 441

liable for the breaches of trust or other torts of the
married woman unconnected with such separate estate.

 

gation will bind her estate, the rule adopted in many of the
American Courts is, that a married woman has no power in rela-
tion to her separate estate but such as has been expressly given to
her, and that her note or bond will not charge her separate estate,
except where w provision for that purpose is contained in the
instrument creating the separate estate.” Ibid., Hulme v. Ten-
nant.

The subject was considered at length in Yale v. Dederer, 21
Barb. 286; 18 N. Y. 265; 22 N. Y. 469; which was cited and
followed in Willard v. Eastham, 15 Gray, 328; and the rule as
now settled in New York and Massachusetts, said to be, “that
when by the contract the debt is made expressly a charge upon
the separate estate, or is expressly contracted upon its credit, or
when the consideration goes to the benefit of such estate, or to en-
hance its value, then Equity will decree that it shall be paid from
such estate or its income, to the extent to which the power of dis-
posal by the married woman may go; but where she is a mere
surety, or makes the contract for the accommodation of another
without consideration received by her, the contract being void at
Law, Equity will not enforce it against the estate, unless an express
instrument makes the debt a charge upon it.”

See also Schouler’s Dom. Rel. 229, 237.

To render the general estate of a married woman liable, the
debt must be contracted for the benefit of the estate, or for her
benefit, on the credit of the estate, or the charge must be imposed
in terms by the contract. Yale v. Dederer, cited above; Seycraft
v, Haddon, 3 Green Ch.; Curtis v. Engel, 2 Sandf. 287; Jones ».
Cowperthwaite, 17 Iowa, 393.

When the res geste are not such as to create a charge, and the
plaintiff relies on « written contract, the intention to bind the
estate must appear on the face of the instrument and cannot be
shown orally. Yale v..Dederer. Aud so, whether real or per-
sonal property is in question, as extrinsic evidence is not admis-
sible to vary a written contract.

Now, however, in New York, under a statute which provides
that a married woman “possessed of real estate as her separate
442 MARRIED WOMEN.

But this decision (to say the least) is very question-
able! A woman’s separate estate is liable, after her
husband’s bankruptcy, to debts incurred by her before
her marriage. Unless contrary to the deed of settle-
ment of the company, a married woman may be a
shareholder in a joint-stock company in her own right,
so as to bind her separate estate.’ And the savings of
property settled to her separate use without power of
anticipation, are liable to indemnify a trustee against
all calls and liabilities incurred on her behalf, in re-
spect of shares purchased by him at her request, and
agreed to be paid for out of her savings.* 856.

It has been held that where a married woman has
a life interest to her separate use, with a general power

1 Wainford v. Heyl, L. R. 20 Eq. 321.

* Chubb »v. Stretch, L. R. 9 Eq. 555.

3 In re Leeds Banking Co., L. R. 3 Eq. 781.
4 Butler v. Cumpston, L. R. 7 Eq. 16.

 

property, may bargain, sell, and convey such property, and enter
into any contract with reference to the same;” a married woman
may charge her separate estate by a written contract, which im-
plies that such is her design, although the consideration does not
move to her, and she is merely a guarantor, surety, or indorser.
The Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 614. In the
above case the whole subject is considered at great length and the
English and American cases considered and compared, and the
decision by Mr. Comm’r. Hunt of the Court of Appeals should be
of special value in States which have similar legislative enact-
ments to the one quoted.

But independent of statutory provisign, the rule laid down in
Yale v. Dederer upon this subject, is the true doctrine, and will
undoubtedly be ultimately recognized by all the American Courts.
: See Tyler, Inf. and Coverture,.2 317, and cases there eited. |.
MARRIED WOMEN, 443

of appointment by will over the remainder, she does
not, by exercising the power, make the remainder ap-
plicable to the discharge of such engagements as would
bind her separate property, unless she has been guilty
of fraud.’ 857.

Where personal property is vested in a woman for
her separate use (without any restraint on anticipation),
with remainder as she should by deed or by will ap-
point, with remainder to her executors or administra-
tors, this is equivalent to an absolute gift to her sole
and separate use.’ 858.

By the stat. 33 and 34 Vict. c. 93, “a hus- pashana's
band shall not, by reason of any marriage [iapility on
which shall take place after this Act has ¢ontracts
come into operation, be liable for the debts of ™*8*
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” (s. 12).
This enactment extends to property settled to the sepa-
rate use of a married woman without power of antici-
pation.’ 859.

This enactment has been repealed, so far as respects
marriages after the 30th July, 1874, and fresh enact-

' Vaughan v. Vanderstegen, 2 Drew. 165, 363; Hobday »v.
Peters (No. 2), 28 Beav. 354; Blatchford v. Wealley, 2 Dr. & Sm.
204; Shattock v. Shattock, fe R. 2 Eq. 182. As to these cases,
see, lames, remarks of James, L. J., in London Chartered Bank
of Australia v. Lempriére, L. R. 4 P. C. 572.

2 London Chartered Bank of Aabiealte ». Lempriére, L. R. 4
P. C. 572, 575-6.

3 Satiser v. Sanger, L. R. 11 = 470.
444 MARRIED WOMEN,

ments have been substituted by the stat. 37 and 38
Vict. c. 50. 860.

Thus, “so much of the Married Women’s Property
Act, 1870, as enacts that a husband shall not be liable
for the debts of his wife contracted before marriage is
repealed so far as respects marriages which shall take
‘place after the passing of this Act, and a husband and
wife married after the passing of this Act may be
jointly sued for any such debt” (s. 1). 861.

“The husband shall, in such action and in any ac-
tion brought for damages sustained by reason of any
tort committed by the wife before marriage or by
reason of the breach of any contract made by the wife
before marriage, be liable for the debt or damages re-
spectively to the extent only of the assets hereinafter
specified; and in addition to any other plea or pleas
may plead that he is not liable to pay the debt or
damages in respect of any such assets as hereinafter
specified ; or, confessing his liability to some amount,
that he is not liable beyond what he so confesses; and
if no such plea is pleaded the husband shall be deemed
to have confessed his liability so far as assets are con-
cerned” (s. 2). 862.

“Tf it is not found in such action that the husband
is liable in respect of any such assets, he shall have
judgment for his costs of defence, whatever the result
of the action may be against the wife” (s. 3). 863.

“ When a husband and wife are sued jointly, if by
confession or otherwise 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
MARRIED WOMEN. 445

which the husband is liable shall be a joint judgment
against the husband and wife, and as to the residue, if
any, of such debt or damages, the judgment shall be a
separate judgment against the wife” (s. 4). 864.

“The assets in respect of and to the extent of which
the husband shall in any such action be liable are as
follows :

(1.) The value of the personal estate in possession
of the wife, which shall have vested in the
husband ;

(2.) The value of the choses in action of the wife
which the husband shall have reduced into
possession, or which with reasonable diligence
he might have reduced into possession ;

(3.) The value of the chattels real of the wife, which
shall have vested in the husband and wife;

(4.) The value of the rents and profits of the real
estate of the wife which the husband shall
have received, or with reasonable diligence
might have received ;

(5.) The value of the husband’s estate or interest in
any property, real or personal, which the
wife in contemplation of her marriage with
him shall have transferred to him or to any
other person ;

(6.) The value of any property, real or personal,
which the wife in contemplation of her mar-
riage with the husband shall with his con-
sent have transferred to any person with the
view of defeating or delaying her existing
creditors ; f
446 MARRIED WOMEN.

“Provided that when the husband after marriage
pays any debt of his wife, or has a judgment bond fide
recovered against him in any such action as is in this
Act mentioned, then to the extent of such payment or
judgment the husband shall not in any subsequent ac-
tion be liable” (s. 5). 865.

“This Act may be cited as the ‘Married Women’s
Property Act (1870) Amendment Act, 1874’” (s. 7).
866.

; By the stat. 33 and 34 Vict. c. 93, it is
ons further enacted that—‘“‘ Where in England

the parish the husband of any woman having separate
or the

mainte property becomes chargeable to any union or
her hus- 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 33d sect. of ‘The Poor Law
Amendment Act, 1868,’ they may now make and en-
force 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 prop-
erty, 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 a feme sole by such and the

same actions and proceedings as money lent” (s. 18).
867.
MARRIED WOMEN. 447

“ A married woman having separate prop-
erty shall be subject to all such liability for
the maintenance of her children as a widow is now by
law subject to for the maintenance of her. children:
provided always, that nothing in this Act shall relieve
her husband from any liability at present imposed upon
him by law to maintain her children” (s. 14). 868.

or children,

SECTION Iv.

THE WIFE'S EQUITY TO A SETTLEMENT OR MAINTENANCE
OUT OF HER OWN PROPERTY.(a)

Except so far as the stat. 33 and 34 Vict.

Power of

c. 93 (supra, Sect. III), may affect the case, trustees of

. the wife’s
trustees of a married woman’s personalty not personalty

settled to her separate use, may pay it over to her sepa
to her husband before Chancery proceedings prea

are taken in respect of it. But on the other hand,
they may refuse to pay it over to him, even at his
wife’s request, unless he makes a settlement, when the

Court would require him to make one.’ 869.
1 Hill on Trustees, 409, 410, 415; Re Swan, 2 Hem. & M. 34.*

 

(a) On this subject see Lady Elibank v. Montolieu, etc., 1 Lead.
Cas. Eq., 2d ed. 341, et seg.; Gleaves v. Paine, 1 D. J. & S. 87.

* The equitable principle of a wife’s claim to a reasonable and
adequate provision out of her equitable choses in action, or out of
any property of hers which is under the jurisdiction of the Court
448 MARRIED WOMEN.

With regard to the cases where the Court requires
a settlement, the following propositions may be laid
down, subject to the stat. 33 and 34 Vict. c. 93 (supra,
Sect. III). 870.
1 Fquityor _ L- If the wife has real property, or the
the wife, absolute interest in personal property (with

when de-
fendant’ the exception, perhaps, of a term of years),

against her s 2
husband. which cannot be reduced into the possession
of the husband without a suit in Equity (as where the
legal property is vested in trustees), and the husband
applies to a Court of Equity for the purpose of reduc-
ing the property into his possession, the Court, acting
upon the maxim that he who seeks equity must do
equity, will not give it up to him, without requiring
him to make a suitable settlement on the wife, of a
part of the property, or of some other property, for her
due maintenance in case of her surviving him,!' with a
provision for the issue of the marriage,’ even though
the property is under £200,3 unless the wife and chil-
dren are already amply provided for under a prior
settlement ;* or the right to the settlement is waived or

1 St. 2 1404, 1405, 1410, 1418; 2 Sp. 482, 484; Duncombe ».
Greenacre, 28 Beav. 472; 2 D. F. & J.509; Life Association of
Scotland v. Siddall, 3 D. F. & J. 271.

2 St. 21406; 2 Sp. 488.

° In re Cutler, 14 Beav. 220; In re Kincaid’s Trusts, 1 Drew.
326.*

‘St. @ 1416; Spicer v. Spicer, 24 Beav. 365; Giacometti v.
Prodgers, L. R. 14 Eq. 252; 8 Ch. Ap. 338.

 

of Chancery, is generally adopted and enforced in this country.
Murray v. Lord Elibank, 1 White & Tudor’s Lead. Cas: Eq., 4th
Am. ed., notes. ,

* Schouler’s Dom. Rel. 131.
MARRIED WOMEN. 449

lost! In the absence of a contract to that effect, an
inadequate settlement, even before marriage, of a part
of her property, does not deprive her of her right to a
settlement out of the residue of her property, though
vested in her at the time of the marriage.’ 871.

This equity of the wife exists in the case of a charge
on land for her benefit, even though there be a power
of entry and receipt of the rents and profits. For,
though there is this remedy at Law for raising the
money, the remedy in Equity is more convenient.’
872.

Before the alterations by the Judicature dace
Act, there were instances in which, for the against pro-

a ‘ é ceedings in
purpose of enforcing the wife’s equity to a other
settlement, bills in Equity were entertained :
to restrain the husband from having recourse to his
remedy in a Court of Common Law to reduce his
wife’s: choses in action into possession.* 873.

If the husband does not choose to make a pericat of
settlement or provision for the wife, the Court thebusband
will not ordinarily take from him the income *ttlement.
and interest of his wife’s fortune, so long as he is wil-
ling to live with and maintain her, and there is no
reason for their living apart. Under such circum-
stances, the Court secures the fund, so as to give her
the chance of taking it by survivorship, allowing the

1 St. 2 1418, 1419, infra, par. 885.

? Barrow v. Barrow, 18 Beav. 529.

5 Duncombe v. Greenacre, 28 Beav. 472; 2 D. F. & J. 509.
* St. ¢ 1403; 2 Sp. 429.

38
450 MARRIED WOMEN.

husband, under its order, to: receive the income and
interest, or a part of it at least.’ 874.

ease Where a woman is indebted at the time
ness of wife of her marriage, she has no equity to a
riage. settlement until her debts have been pro-
vided for 875.

1 yay II. The trustees in bankruptcy or insol-
of the wiley vency of a husband, and also his trustees

fendant'as for payment of debts due to his creditors

against her

pustand’s. generally, are bound to make a settlement on

vendees. the wife out of her immediate choses in action
and immediate absolute equitable interests in chattels
personal assigned to them, in the same way, and under
the same circumstances, as he would be bound to make
one; forit is a general principle that such trustees take
the property subject to all the equities which affect the
bankrupt or insolvent or general assignor. Such trus-
tees also take the property subject to the wife’s right of
survivorship, in case the husband dies before the trus-
tees have reduced her choses in action and equitable
interests into possession. And even a specific assignee
or purchaser from the husband, for valuable consider-
ation, of her choses in action and equitable interests,
is bound to make such a settlement. And no assign-
ment of them will convey any right to the assignee or
purchaser against the wife, if she survives her husband,
and they are not reduced into possession in his life-
time.* 876.

1 St. 21415; see 2 Sp. 490, 491.

* Barnard v. Ford, L. R. 4 Ch. Ap. 247.

3 St. 81411, 1421; 2 Sp. 476.

* St. @ 1412; 2 Sp. 476; Scott v. Spashett, 3 Mac. & G. 604.
MARRIED WOMEN. 451

There is this distinction, however, between wien an
the case of the husband himself and his jmmediste
specific assignees for valuable consideration, ** "eared.
on the one hand, and the case of his trustees in bank-
ruptey or insolvency, or trustees for payment of debts
generally, on the other hand: in the case of the
former, it is only necessary that the provision for the
wife should commence from the death of her husband ;
but in the case of the latter, it is necessary that the
provision should commence immediately, because the
general assignment of his property renders him incapa-
ble for a time, and perhaps for ever, of affording her
a suitable support.’ 877.

If the trustees in bankruptcy, or other
general assignees claiming title under the chthe.
husband, refuse to make a settlement on npreeee
the wife, the like doctrine applies to them Tore
as to the husband himself where he refuses to make a
settlement.’ 878.

The husband can sell the life interest of —__
his wife in personalty, and she has no equity hee
to a settlement as against the purchaser.’ pera
879. .

A wife has no equity to asettlement out
of arrears of past income of real or leasehold out of pat

property, whether against her husband or
his particular assignee.* 880.

1 St. 2 1421.

2 St. 21415; supra, par. 874.

5 Re Duffy’s Trust, 28 Beay. 386.

4 In re Carr’s Trusts, L. R. 12 Eq. 609.
452 MARRIED WOMEN.

If the husband assigns his wife’s rever-
Reversion-

Be choses in Sionary choses im action and other rever-
tion, and és é ‘ .

reversion- gionary equitable interests 1n personal chat-

ary equi- < fe

table inter- tels, such assignment will not exclude her

ests in

peuabat right of survivorship, although she join in
the assignment; because the assignment,

from the nature of the thing, cannot amount to a re-

duction into possession of such xeversionary inter-

est'(a). 881.

noteate LLL Whenever the wife, as defendant,

re ae would be entitled to an equity for a settle-

tiff, to a set- } 7 ,
tif, toa set- ment, out of her equitable interest, against

her hus- . $ ‘
ere her husband, or against his assignees, she

deathpam™ may assert it, as plaintiff or petitioner.’

insolvency. 882

rv Amount LV- The Court has a full discretion as to
tobesettled. the amount to be settled, according to the
circumstances of each case. In the absence, however,
of special circumstances, the general rule or the com-
mon course has been to settle about one-half on the
wife and her children,’ with remainder in default of

1 St. 91413; 2 Sp. 476.

2 St. 2 1414; 2 Sp. 482, 484, 585; Walker v. Drury, 17 Beav.
482; Gleaves v. Paine, 1 D. J. & S. 87; Re Ford, 32 Beav. 621.

3 Walker ». Drury, 17 Beav. 482; Napier v. Napier, 1 Dru. &
W. 410; Bagshaw v. Winter, 5 De G. & Sm. 466; McCormick ».
Garnett, 2 Sm. & G. 37; 5 D. M. & G. 278; Smith v. Smith, 3

Gif. 121; Re Grove’s Trust, 3 Gif. 583; 2 Sp. 485; 1 Bright on
Husband and Wife, 241.*

(a) For an article on the disposition of reversionary interests
of married women in chattels personal, by the writer of this
Manual, see 10 Jurist, 231, 248. But see 2 Sp. 487, and cases
there cited. And see stat. 20 and 21 Vict. c. 57.

* See also Schouler’s Dom. Rel. 132, 133.
MARRIED WOMEN. 453.

‘issue of the present or any future husband, to the hus-
band, whether he survives the wife or not, or to his
assignees.’ 883.

V. To avoid the expense of a settlement, |.

where the fund belonging to the wife is small, tute fora
settlement

it will sometimes be ordered to be brought where fund
is small.

into Court, or if already in Court, it will be
retained there, and the dividends directed to be paid to
the wife for her life.’ 884.

1 Spirett v. Willows, L.R.1 Ch. Ap. 520; In re Suggitt’s Trusts,
L. R. 8 Ch. Ap. 215; Croxton’v. May, L. R. 9 Eq. 404. But
where particular reasons have occurred, the Court has frequently
settled the whole: as in Marshall v. Fowler, 16 Beav. 249, where

_ the husband had taken the benefit of the Insolvent Debtor’s Act,
and was moreover almost entirely dependent on charity; In re
Kincaid’s Trusts, 1 Drew. 326; and Ward v. Yates, 1 Drew. &
Sm. 80, where the husband was a bankrupt, and the fund was
under £200—so small a sum that it would not have been worth
while to have made any settlement at all, unless the whole had
been settled ; In re Cutler, 14 Beav. 220; Watson v. Marshall, 1
Weekly Reporter, 523; Francis v. Brooking, 19 Beav. 347;
Keeber v. Sturgis, 22 Beav. 588 ; Squires v. Ashford, 23 Beav. 132;
Duncombe ». Greenacre (No. 2), 29 Beav. 578; and Newman v.
Wilson (No. 2), 31 Beav. 34, where the husband was an insolvent
debtor; in Scott v. Spashett, 3 M. & G. 599, where, besides other
special circumstances, the husband had received about double the
amount of the wife’s property under a previous order, and no set-
tlement had ever been made; and in Dunkley v. Dunkley, 4 De G.
& Sm. 570; 2D. M. & G. 890; Vaughan v. Buck, 1 Sim. (N. §.)
284; and Gent v. Harris, 10 Hare, 383, where the husband had
become bankrupt, and had deserted his wife.

? Bagshaw v. Winter, 5 De G. & Sm. 466; Watson v. Marshall,
17 Beav. 368; Walker v. Drury, Id. 482.
454 MARRIED WOMEN.

VI. The Court will not insist on a settle-
eqiity ment on the wife, if at any time before a
waiveds settlement under the decree is completed, or
at least before proposals are made under the decree,
the wife, by her consent given in open Court, or under
a commission, agrees that the absolute fund shall be
wholly and absolutely paid over to the husband; ex-
cept in the case of a female ward of the Court, who
has married without its authority.’ But until a transfer
to the husband has actually been made, the wife can
revoke her consent.’ 885.
orlost, or Lhe equity of the wife to a settlement may
suspended. he lost or suspended by her own misconduct.
Thus, if the wife (not being a ward of Court, married
without its consent) has been living in adultery, apart
from the husband, a Court of Equity will not direct a
settlement, on her own application, as it otherwise
would; because, by such misconduct, she has rendered
herself unworthy of the protection and favor of the
Court. But, on the other hand, in such a case, a Court
of Equity will not decree such equitable property to be
paid over to the husband on his application; for when
the wife is living apart from him, he is at no charge
for her maintenance; and it is only in respect to his
duty to maintain her that the Law gives him her for-
tune. In the case, however, of a female ward of Court,
married without its consent, the Court will insist on a
settlement, as a punishment to the husband for con-

1 St. 21418; 2 Sp. 486, 488,
* Penfold v. Mould, L. R. 4 Eq. 562.
MARRIED WOMEN. 455

tempt of its authority... And we must be careful to
distinguish an application which is grounded merely
on general principles of equity, and an application
grounded on positive vested rights under a settlement,
or under a valid contract for a settlement made before
marriage. In the latter case, Courts of Equity cannot
‘ refuse to protect or support those vested rights on ac-
count of any misconduct in the wife.? 886.

A woman may by her fraud, even though perpe-
trated by compulsion of her husband, preclude herself
from asserting against a purchaser that equity to a set-
tlement which she would otherwise possess.’ 887.

Where an executor is indebted to the testator’s es-
tate, and unable to pay, he is not entitled to any part
of the assets in right of his wife, and consequently no
equity to a’settlement of any part of the assets can arise
to the wife* 888. Z

We have seen that the Court, in making y,. 6: of
a settlement on the wife, properly attends to provision
the interests of the children. But it must ‘de.
be observed, that the Court attends to their interest
only upon the supposition that, in so doing, it is carry-
ing into effect her own desire to provide for her off-
spring. They have no independent equity of their
ewn ; for although the husband is under a moral obli-
gation to provide for them, yet he is not bound to pro-
vide for them in any particular way or out of any par-

1 St. 3 1419, and note, and 14194; 2 Sp. 486.
* St. 3 1420.

* Tn re Lush’s Trusts, L. R. 4 Ch. Ap. 591.

‘ Knight v. Knight, L. R. 18 Eq. 487.
456 MARRIED WOMEN.

ticular fund. They have only a claim to the considera-
tion of the Court, constituting part of the equity of their
mother, and capable of being either expressly given up
by her before the amount is ascertained, or tacitly
waived by her dying without having asserted it." And
it has been held that if she dies before a decree, even
without waiving a right to a settlement, the children
cannot assert any claim.? 889.

ae, VII. By the law of Scotland, a married

equity toa woman has no equity to a settlement; and if
settlement,

where par- husband and wife are domiciled in Scotland,

domiciled = she has no equity to a settlement,’ even out
in Scotland. - ?

of the produce of real estate in England di-
rected to be sold.* 890.
sien VIII. Although Courts of Equity do not

tyofthe claim any general jurisdiction te decree a
wife to a

mainte- —_ suitable maintenance for the wife, out of her

case ofthe ~husband’s property, where he has deserted

husband’s

isconduct, He a
misconduct, oy j}]-treated her, yet, whenever the wife has

runtey, or any equitable property, even though it be

only for her life, within the reach of the
jurisdiction of Courts of Equity, and the husband has
deserted or ill-treated or refused to maintain her, they
will decree a suitable and immediate maintenance out
of such equitable property, or, if it has passed into the
possession of a bond fide purchaser without notice, out

of other property of the husband; because the obliga-

1 See St. 31417; 2 Sp. 488-492.

* Wallace v. Auldjo, 2 Dr. & Sm. 216; 1D. J. & S. 643.
* McCormick v. Garnett, 5 D. M. & G. 278.

‘ Hitchcock v. Clendinen, 12 Beay. 534.
MARRIED WOMEN. 457

tion of maintaining the wife is the ground on which
the. Law gives the property to the husband.!. And
where the wife has an equitable interest for life only,
and the husband is a bankrupt or insolvent, and there-
fore is, as a general rule, deprived, for a time at least,
of the means of duly maintaining her, she is entitled
to an allowance for maintenance out of such life inter-
est, as against the trustees. But a married woman,
even though her husband does not maintain her, is not
entitled, as against a particular assignee for valuable
consideration of the husband, to an allowance for main-
tenance out of the income of real or personal estate to
which she is entitled in Equity, for her life only; be-
cause, if she were, purchasers would be involved in
inquiries respecting the relations between husband and
wife, and their other property and sources of mainte-
nance; and the life interests of married women would
become incapable of being dealt with, whatever might
be the exigencies of the case? 891.

1 St. 3 1408, p. 1408, note, 1422-1424, 1426,
2 St. 2 1408n, 1412.
8 Tidd v. Lister, 10 Hare, 151, 153; 3 D. M. & G. 857.*

 

* Schouler’s Dom. Rel. 157.

39
458 MARRIED WOMEN.

SECTION V.

‘

SOME MISCELLANEOUS POINTS.(@)

As a deed of separation cannot dissolve the mar-
Deeds or Tiage, it does not relieve the wife from any
separation. of the ordinary disabilities of coverture.’ 892.

A deed of separation entered into between the hus-
band and wife alone, without the intervention of trus-
tees, is utterly void.’ 893.

A. covenant for separation, whether immediate or
future is void. But the Court may compel parties, in
pursuance of articles of separation entered into between
them, to execute a formal deed of separation, quantum
valeat, unless in the meantime they agree to live
together. And it would seem that if a deed for im-
mediate, and not for future, separation, contains a
covenant by the husband to maintain his wife, and a
covenant by the trustees to exonerate him from any
debts contracted for her maintenance, such covenant
will be enforced, so long as the separation lasts; but
it will not be enforced for a longer period, even as to
past separation.® 894.

A contract in a separation deed cannot affect the

1S.31498.  . 2 St. 2 1428.*

3 St. 4 1428; 2 Sp. 528; Wilson v. Wilson, 1 H. L. Cas. 538;
5 Id. 51, 61, 62.

 

(a) See 2 Lead. Cas. Eq. 2d ed. 718-717, et seq.
* Schouler’s Dom. Rel. 293.
MARRIED WOMEN. 459

property of the wife, if not settled to her separate use,
or reduced into possession during the coverture. 895.

The Court will interfere to prevent the doing of
any personal acts, which, if done, would be in viola-
tion of an agreement respecting property entered into
on the separation. And where, by articles of separa-
tion, it is agreed that the husband shall permit his
wife to live separate, and as if unmarried, without any
molestation, interference, or annoyance whatever, and
that a proper deed shall be executed for effectuating
the object of the articles, and containing all such cove-
nants, etc., as shall be deemed expedient for that pur-
pose, this justifies the insertion in the deed of a cove-
nant that the husband will not compel, or endeavor to
compel, the wife, by legal proceedings or otherwise, to
cohabit or live with him. And such a covenant may
be enforced by action or injunction.’ 896.

Reconciliation puts an end to a deed of separation,
as it must not be permitted to parties to make agree-
ments for themselves to hold good whenever they
choose to live separate.? 897.

If a wife induces her husband to execute a deed of
separation, in contemplation by her of her renewal of
an illicit intercourse, the deed is void.“ 898.

1 2 Sp. 582.

2 2 Sp. 582; Wilson ». Wilson, 1 H. L. Cas. 538; 5.Id. 40, 51,
52, 60-63, 71,72; Sanders v. Rodway, 16 Beav. 207; and see re-
marks of V.-C. Wood, in Stocker v. Wedderburn, 3 K. & J. 408;
Hunt v. Hunt, 31 Beav. 89; 4D. F. & J. 221; Gibbs v. Harding,
L. R. 8 Eq. 490; 5 Ch. Ap. 336.

3 2 Sp. 532.
« Evans v, Carrington, 2 D. F. & J. 481.
460 MARRIED WOMEN.

Non-disclosure of antenuptial inconti-
dlosueof nence on the part of a wife is not such a
tial incon- fraud upon the husband as to entitle him
mnence- to set aside a settlement made upon the
marriage.’ 899.

The Court has no jurisdiction to deprive
taderset- an adulteress, whose marriage has been dis-
forfeited by solved, of any benefit under the settlement
adultery. 2

made upon the marriage.’ 900.

Where a married woman contracts and
pays for real estate without the knowledge
of her husband, but for his benefit, such a purchase is
binding when ratified by the husband.’ 901.

A woman, although married, cannot, by
fraud, obtain for herself or those claiming
under her any benefit or interest, to the detriment of
any other person.* 902.

And if husband and wife mortgage the wife’s real
estate, and represent to the mortgagee that there is no
settlement, and the mortgagee has no notice that there
is a settlement, the wife is bound by the representation,
and the mortgagee is protected.? 903.

Where a wife is deserted by her husband,
Money ad-
vanced for and a person advances money to her for her

support of a

deserted support, and it is applied for that purpose,

wife.

‘ he can in Equity compel the husband to
repay him the money.’ 904.

* Evans v. Carrington, 2 D. F. & J. 481.

3 Evans v. Carrington, 2 D. F. & J. 481; Fitzgerald v, Chap-
man, L. R. 1 Ch. D. 563. 8 Millard v. Harvey, 34 Beav, 237.

* V.-C. Wood in Nicholl v. Jones, L. R. 3 Eq. 709.

5 Sharpe v. Foy, L. R. 4 Ch. Ap. 35.

§ Deare v. Soutten, L. R. 9 Eq. 151.

Purchase.

Fraud.
TITLE VI.

Of Angiliary Equity."

1 The author has omitted this title in the last two London edi-
tions of this work, as treating of matters of practice rather than
principle; and rendered partially unnecessary by recent Parlia-
mentary enactments. The subject is still important to the student,
and is restored to this edition by the editor.
CHAPTER I.

OF A DISCOVERY IN AID OF A SUIT OR DEFENCE IN
ANOTHER COURT.

Every bill which requires an answer is in a cer-
tain sense a bill of discovery. But.a bill of discovery,
technically so called, is a bill which asks for
no relief, but sinply seeks a discovery of ora billet
facts resting in the knowledge of the de- ne
fendant, or of deeds or writings or other things in the
possession or power of the defendant, in order to main-
tain the right or title of the party asking it, in some
suit or proceeding in another Court.’ 905.

It is immaterial whether the Court be Diserery
situate in the same country, or in a foreign ae
country in amity with the country where *”»
the bill is filed And it is not necessary . _
that the suit should be already commenced; iy ae
to which the bill of discovery is to be auxil- ™"°*
iary, if the discovery is indispensable, in order to en-
able the party rightly to proceed.’ 906.

" St. 2 1483.* 2 St. @ 1495. 3 See St. 2 1483, 1495.

 

* Mitford and Tyler’s Equity Pleadings, 151-153.
+ Mitf. and Tyl. Eq. Pl. 282, note 1.
{ St. Eq. Pl. 2 321, 560.
A464 DISCOVERY.

These bills, however, may be resisted on
jose vores the following grounds: 1. That the subject
certain” is. not cognizable in any municipal Court.
grounds: 9, That the Court will not lend its aid to
obtain a discovery for the particular Court for which
it is wanted. 3. That the plaintiff is not entitled to
the discovery, by reason of some personal disability.
4, That the plaintiff has no title to the character in
which he sues. 5. That the value of the thing sued
for is beneath the dignity of the Court. 6. That the
plaintiff has no interest in the subject-matter or title
to the discovery required ;' as where the plaintiff is
only heir apparent? 7. That the defendant is not
answerable to the plaintiff, but that some other per-
son has a right to call for the discovery. 8. That the
policy of the Law exempts the defendant from the
discovery ;* as if a bill of discovery is filed against a
married woman, to compel her to disclose facts which
may charge her husband; or where the bill seeks to
compel a counsel or solicitor to disclose the secrets of
his client! 9. That the discovery relates to the de-
fendant’s case, and not to the plaintiff’s case.> So that
even an heir-at-law has not a right to the inspection.
of deeds in the possession of a devisee, unless he is an
heir in tail; in which case he is entitled to see the

1 St. 2 1489, 1490.* ® St. 21490. 3 St. 2 1489.
# St. 2 1496. 5 St. 2 1489, 1490, note.

 

* Mitf. and Tyl. Eq. Pl. 281, et seq.
DISCOVERY. 465

deeds creating the estate tail. But if a bill filed by a
defendant at law suggests specific defects in the title of
his adversary, the discovery will be granted, although
the case made by the bill is not the assertion of an
affirmative title in the party bringing the bill.? 10.
That the discovery is not material in the suit.2 11.
That the defendant has no interest in the suit, but is a
mere witness ;* unless the bill charges him with fraud ;
as in the case of an attorney who has assisted a client
in obtaining a fraudulent deed ;* or unless he is the
officer of a corporation; in which case he may be
made a party to a bill for discovery against such
corporation, on the ground, it has been said, that a
corporation, being an artificial person, cannot be com-
pelled to make any discovery on oath.© 12. A dis-
covery may in general be resisted where it would dis-
close circumstances that would subject the defendant to
a penalty or forfeiture, or to a criminal prosecution, or
to ecclesiastical censures. To this rule, however, there
are various exceptions; as in the case of fraud or con-
spiracy, or a statutory prohibition of resisting a discov-
ery, or an expressed or implied contract not to resist
discovery.’ 13. A discovery may also be resisted on
the ground that it is perfectly clear that the action or

1 St. 21491, 1492. 2 St. 2 1493 a, note.
2 St. 4 1489, 1497. # St. 41489, 1499.
® St. 4 1500. 6 St. 2 1501.

7 See St. 2 1494, and note, and Story’s Eq. Plead. c. xi, and 1
Dan. C. P., 2d ed. by Headlam, 517-525.*

 

* Mitf. & Tyl. Eq. Pl. 289, et seg.
466 DISCOVERY.

defence is not maintainable at Law. 14. That the
Court where the suit is brought has always had the
power of eliciting the facts without the aid of a bill of
discovery.” But although a party may now examine
his opponent at law under the Stat. 14 and 15 Vict. ¢.
99, s. 2, and under the Stat. 17 and 18 Vict. ¢. 125,
s. 51-54, and the Courts of Common Law can now
compel the production of documents under the 6th
section of the former Act and the 50th section of the
latter Act, yet a plaintiff or defendant at law is en-
titled to a discovery in Equity in aid of his action or
defence.’ 15. A discovery may also be resisted on the
ground that it is in aid of a controversy pending before
arbitrators, who, not being the regular tribunals for
administering justice, but judges of the party’s own
choice, must submit to the inconvenience incident to
their position. But this has no application to a com-
pulsory arbitration ordered in an action.? 16. In gen-
eral, arbitrators are not compellable to disclose the
grounds on which they made their award. 17. That
the defendant is a bond fide purchaser for valuable
consideration, and without notice, who has paid his

1 St. 3 1493 a. 2 St. 2 1495.

3 Lovell v. Galloway, 17 Beav. 1; Senior v. Pritchard, 16 Beav.
473; British Empire Shipping Company v. Somes, 3 K. & J. 488,
436. :

4 St. 3 1495.*

5 British Empire Shipping Company v. Somes, 3 K. & J. 433,
436.

® St. 2 1498.

 

* St, Eq. Pl. 3 554, 555.
DISCOVERY. 467

purchase-money, and has an equal equity with the
plaintiff ;’ or that the defendant is a sub-purchaser,
whether with or without notice, from such bon@ fide
purchaser without notice.” But a judgment creditor
by elegit is not deemed a purchaser within the above
rule? 18. A jointress is entitled to protect herself
against a disclosure of her jointure deed, if the party
seeking the discovery is not capablé of confirming the
jointure, or if, being capable, he does not offer to con-
firm it. If he is capable and offers to confirm it, the
discovery will be granted as soon as the confirmation
is made, but not before; for otherwise it might happen,
that after the discovery, his offer might become in-
effectual by the intervention of other interests.* 907.

1 St. ¢ 1502, 1503. 2 St. @ 1503 a.
5 St. 2 1503 b. 4 St. 3 1504.
468 TAKING AND PRESERVING TESTIMONY.

CHAPTER IL.

OF THE TAKING “ND PRESERVING OF TESTIMONY
IN AID OF A SUIT OR DEFENCE IN ANOTHER
COURT.

ONE species of bill filed for this purpose is
petuate ts a bill to perpetuate testimony. This is a
mm" pill which is filed to preserve testimony,
* when it is in danger of being lost, before the matter to
which it relates can be made the subject of judicial in-
vestigation. Thus, when the plaintiff’s title is in re-
mainder, or when he himself is in actual possession of
the property, or when he is in present possession of the
rights which he seeks to perpetuate by proofs, he is
necessarily unable to bring his disputed interest into
immediate judicial investigation ; and therefore Courts
of Equity will entertain a suit to secure the proofs on
which his title depends; for otherwise such proofs
might be lost by the death of his witnesses, and the
adverse party might purposely delay his suit with a
view to that very event.” An instance of this occurs
where a devisee, in order to perpetuate the testimony

1 St. 4 1506.

7 St. 2 1508; Ellice », Roupell (No. 1), 32 Beav. 299; s. ¢.
(No. 2), 32 Beav. 308; s. c. (No. 3), 32 Beay. 318.
TAKING AND PRESERVING TESTIMONY. 469

of witnesses to the will, exhibits a bill against the heir,
setting forth the will verbatim, and suggesting that the
heir is inclined to dispute its validity ; and then, when
the cause is at issue, witnesses to the will are examined,
after which the cause is at an end; but the heir is en-
titled to his costs, even though he contests the will.
This is what is usually meant by proving a’ will in
Chancery.’ 908.

Such a bill cannot be brought by a defendant to a suit
already commenced, though he cannot himself put the
matter into a course of judicial investigation, and yet
the plaintiff may dismiss his bill, and then file a new
bill when the witnesses are dead, whose testimony it is
the interest of the defendant to perpetuate.? 909.

Courts of Equity will not perpetuate testimony in
support of a right which may be barred by the de-
fendant.* 910.

Such a bill may be filed in relation to mere personal
demands, and even in cases of penalty or forfeiture.+
911.

Another kind of bill of a similar character, a at
but founded on distinct circumstances, is a testimony

. . i . de bene esse.
bill to take testimony de bene esse, which is
one that is filed to preserve testimony respecting a
vested interest in the plaintiff, which is the subject of
an action or suit already commenced, and which de-
pends on the testimony of a single witness, or on the

1 St. 2 1506.*

2 Earl Spencer v. Peck, L. R. 3 Eq. Cas. 415.
3 St. 3.1511. 4 St. 3 1509.

 

* 2 Blackst. Comm. 450.
470 TAKING AND PRESERVING TESTIMONY.

sole testimony of aged or infirm persons, or on testi-
mony that cannot be given viva voce in the ordinary
way. Thus, an order will be made to take the testi-
mony of persons who are seventy years. of age, or of.
persons who are unable to travel, or of those who are
going abroad and likely to die before the time of the
trial. And the Court will even entertain a bill to pre-
serve the testimony of a witness who is capable of at-
tending, if he is a single witness to an important fact
in the cause.’ 912.

Whenavi Where a person is able to bring a matter
tosake and into immediate judicial investigation, and yet
testimony, he has not commenced any suit, the Court
entertained. wil] not entertain a bill of any kind to take
and preserve testimony in his favor. For if, in such
case, the evidence may be procured viva voce in the
ordinary way, there is no need whatever of having re-
course to written depositions in place of viva voce evi-
dence.* And even if the evidence cannot be procured
in the ordinary way, yet a bill to take the testimony

1 St. 2 1513, 1514. See Judgment in Earl Spencer v. Peck, L.
R. 3 Eq. Cas, 421.*

2 St. 4 1508; Ellice v. Roupell (No. 1), 32 Beav. 299; s. c.
(No. 2), 32 Beav. 308; s. c. (No. 8), 32 Beav. 318.

 

* By the common law, Courts of Law have no authority to issue
commissions to take the testimony of witnesses de bene esse in any
case. St. Eq. Jur. ¢ 1514; 3 Blackst. Comm. 383. This defect was
long since cured in America, and the authority given to our Courts
of Common Law, to take the depositions of witnesses both at home
and abroad, has been carried to an extent far beyond what has
been exercised by Courts of Equity. St. Eq. Jur. ¢ 1514, note.
TAKING AND PRESERVING TESTIMONY. 471

de bene esse will not be entertained except in aid of a
suit already commenced; because if it were, the plain-
tiff in the bill, having obtained the written testimony
of his own witnesses, might delay his action until their
death, so that they might be guilty of the grossest per-
jury, and yet go unpunished, and also until the death
of those witnesses for the adverse party who were able
to give their testimony in the usual way, and thus the
justice of the case might be entirely defeated.1 913.

Commissions to take the testimony of witnesses
abroad, although confined to civil actions, are grant-
able in cases of civil tort, such as libel.” 914.

Even where an order is made to take the

When depo-

written deposition of witnesses, on a bill to sitions
aken on

perpetuate testimony, or to take testimony such bills

not al-
de bene esse, the evidence so taken must not lomed to be
be used, if the witnesses are alive, and capable
of attending, and within the jurisdiction at the time of

the trial. 915.

1 See St. 2 1508 and note, and 1513, note. 2 St. @ 1515.
3 St. 3 1507, 1508, note, 1512, 1513, note, and 1516, note.
31 anp 32 Vicr. Cap. XL.
An Act to amend the Law relating to Partition.

[25tH June, 1868.

BE it enacted by the Queen’s most excellent Majesty,
by and with the advice’'and consent of the Lords Spir-
itual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows: ;

1. This Act may be cited as The Partition

Short title. Act, 1868.

2. In this Act the term “the Court”

‘em the means the Court of Chancery in England,

‘the Court of Chancery in Ireland, the Landed

Estates Court in Ireland, and the Court of Chancery

of the County Palatine of Lancaster, within their re-
spective jurisdictions.

Salada) 3. In a suit for partition, where, if this
Court to, Act had not been passed, a decree for parti-
instead of tion might have been made, then if it ap-

pears to the Court that, by reason of the na-

ture of the property to which the suit relates, or of the
31 AND 32 vVIcTORL&, CAP. 40. 473

 

Partition.

 

number of the parties interested or presumptively in-
terested therein, or of the absence or disability of some
of those parties, or of any other circumstance, a sale of
the property and a distribution of the proceeds would
be more beneficial for the parties interested than a di-
vision 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
property accordingly, and may give all necessary or
proper consequential directions.

4. In a suit for partition, where if this 1), o,
Act had not been passed, a decree for parti- aera
tion might have been made, then if the party Priatties
or parties interested, individually or collec- een
tively to the extent of one moiety or upwards in the
property to which the suit relates, request the Court to
direct a sale of the property and a distribution of the
proceeds instead of a division of the property between
or among the parties interested, the Court shall, unless
it sees good reason to the contrary, direct a sale of the
property accordingly, and give all necessary or proper
consequential directions.

5. In a suit for partition, where, if this
Act had not been passed, a decree for parti- ciacne
tion might have been made, then if any pasty de
party interested in the property to which the ,

40
474 31 anp 82 victorI#, cap. 40.

 

Partition.

 

suit relates requests the Court to direct a sale of the
property and a distribution of the proceeds instead of
a division of the property between or among the par-
ties interested, the Court may, if it thinks fit, unless
the other parties interested in the property, or some of
them undertake to purchase the share of the party re-
questing a sale, direct a sale of the property, and give
all necessary or proper consequential directions, and in
case of such undertaking being given the Court may
order a valuation of the share of the party requesting
a sale in such manner as the Court thinks fit, and may
give all necessary or proper consequential directions.

Autoovity 6. On any sale under this Act the Court
inteetet may, if it thinks fit, allow any of the parties
ae: interested in the property, to bid at the sale,
on such terms as to non+payment of deposit, or as to
setting off or accounting for the purchase-money or
any part thereof instead of paying the same, or as to

any other matters, as to the Court seem reasonable.

ee 7. Section Thirty of The Trustee Act,

of ‘Trustee 1850, shall extend and apply to cases, where

GSandt4 in suits for partition, the Court directs a
sale instead of a division of the property.

om 8. Sections Twenty-three to Twenty-five
Application
of proceeds (both inclusive) of the Act of the session of

(19 and 20 the nineteenth and twentieth years of Her
Majesty’s reign (Chapter One hundred and
3L AND 32 VICTORIA, cAP. 40. 475

 

Partition.

 

twenty), “to facilitate Leases and Sales of Settled
Estates,” shall extend and apply to money to be re-
ceived on any sale effected under the authority of this
Act.

9. Any person who, if this Act had not
been passed, might have maintained a suit parties
for partition, may maintain such suit against oe
any one or more of the parties interested, without serv-
ing the other or others (if any) of those parties ; and it
shall not be competent to any defendant in the suit to
object for want of parties; and at the hearing of the
cause the Court may direct such inquiries as to the
nature of the property, and the persons ‘interested
therein, and other matters, as it thinks necessary or
proper with a view to an order for partition or sale
being made on further consideration ; but all persons
who, if this Act had not been passed, would have been
necessary parties to the suit, shall be served with
notice of the decree or order on the hearing, and after
such notice shall be bound by the proceedings as if
they had been originally parties to the suit, and shall
be deemed parties to the suit; and all such persons
may have liberty at attend the proceedings; and any
such person may, within a time limited by general
orders, apply to the Court to add to the decree or
order.

10. In a suit for partition the Court may ae
make such order as it thinks just respecting partition
costs up to the time of the hearing. ner
476 31 AND 32 VICTORIA, CAP. 40.

 

Partition.

 

antec 11. Sections Nine, Ten, and Eleven of the
eral orders Chancery Amendment Act, 1858, relative to
(lana 22 the making of general orders, shall have
Vicl.27) effect as if they were repeated in this Act,
and in terms made applicable to the purposes thereof.
Jurisdiction 12. In England the County Courts shall
Goursin have and exercise the like power and au-
Bacd29 thority as the Court of Chancery in suits for
Vicee-®) partition (including the power and authority
conferred by this Act) in any case where the property
to which the suit relates does not exceed in value the
sum of five huridred pounds, and the same shall be
had and exercised in like manner and subject to the
like provisions as the power and authority conferred
by Section One of the County Courts Act, 1865.
39 AND 40 VICTORIH, cap. 17. AT7

 

Partition.

89 anp 40 Vict. Cap. XVII.

An Act to amend the Partition Act, 1868.

[277 June, 1876.

BE it enacted by the Queen’s most excellent Majesty,
by and with the advice and consent of the Lords Spir-
itual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the
same, as follows:

1. This Act may be cited as the Partition
Act, 1876, and shall be read as one with the
Partition Act, 1868.

Short title.

2. This Act shall apply to actions pending pptication
at the time of the passing of this Act as well ****
as to actions commenced after the passing thereof, and
the term “action” includes a suit, and the term “judg-

ment” includes decree or order.

3. Where in an action for partition it ap- power to
pears to the Court that notice of the judg- ores ice

. f notice of
ment on the hearing of the cause cannot be Genone°

tea
served on all the persons on whom that no- special:

tice is by the Partition Act, 1868, required °***
478 39 anp 40 VICTORI®, CAP. 17.

 

Partition.

 

to be served, or cannot be so served without expense
disproportionate to the value of the property to which
the action relates, the Court may, if it thinks fit, on
the request of any of the parties interested in the prop-
erty, and notwithstanding the dissent or disability of
any others of them, by order, dispense with that service
on any person or class of persons specified in the order,
and, instead thereof, may direct advertisements to be
published at such times and in such manner as the
Court shall think fit, calling upon all persons claiming
to be interested in such property who have not been so
served to come in and establish their respective claims
in respect thereof before the Judge in Chambers within
a time to be thereby limited. After the expiration of
the time so limited all persons who shall not have so
come in and established such claims, whether they are
within or without the jurisdiction of the Court (includ-
ing persons under any disability), shall be bound by
the proceedings in the action as if on the day of the
date of the order dispensing with service they had been
served with notice of the judgment, service whereof is
dispensed with ; and thereupon the powers of the Court
under the Trustee Act, 1850, shall extend to their in-
terests in the property to which the action relates as if
they had been parties to the action; and the Court may
thereupon, if it shall think fit, direct a sale of the prop-

erty and give all necessary or proper consequential di-
rections.
39 AND 40 VictoRIa, CAP. 17. 479

 

Partition.

 

4, When an order is made under this Act

: : . : : Proceedings
dispensing with service of notice on any per- where ser=

son or class of persons, and property is sold pensed
by order of the Court, the following pro- ree

visions shall have effect:

(1.) The proceeds of sale shall be paid into Court to
abide the further order of the Court:

(2.) The Court shall, by order, fix a time, at the
expiration of which the proceeds will be
distributed, and may from time to time, by
further order, extend that time:

(3.) The Court shall direct such notices to be given
by advertisements or otherwise as it thinks
best adapted for notifying to any person on
whom service is dispensed with, who may not
have previously come in and established their
claims, the fact of the sale, the time of the
intended distribution, and the time within
which a claim to participate in the proceeds
must be made:

(4.) If at the expiration of the time so fixed or
extended the interests of all the persons in-
terested have been ascertained, the Court shall
distribute the proceeds in accordance with
the rights of those persons :

(5.) If at the expiration of the time so fixed or
extended the interests of all the persons in-
terested have not been ascertained, and it ap-
pears to the Court that they cannot be ascer-
480

39 anp 40 vicToRIm, CAP. 17.

 

Partition.

 

Provision
for case of
successive
sales in
same
action.

tained, or cannot be ascertained without
expense disproportionate to the value of the
property or of the unascertained interests,
the Court shall distribute the proceeds in
such manner as appears to the Court to be
most in accordance with the rights of the
persons whose claims to participate in the
proceeds have been established, whether all
those persons are or are not before the Court,
and with such reservations (if any) as to the
Court may seem fit in favor of any other
persons (whether ascertained or not) who
may appear from the evidence before the
Court to have any prima facie rights which
ought to be so provided for, although such
rights may not have been fully established,
but to the exclusion of all other persons, and
thereupon all such other persons shall by
virtue of this Act be excluded from partici-
pation in those proceeds on the distribution
thereof, but notwithstanding the distribution
any excluded person may recover from any
participating person any portion received by
him of the share of the excluded person.

5. Where in an action for partition two
or more sales are made, if any person who
has by virtue of this Act been excluded from
participation in the proceeds of any of those

sales establishes his claim to participate in the pro-
39 AnD 40 VIcToRIa, cap. 17. 481

 

Partition.

 

ceeds of a subsequent sale, the shares of the other per-
sons interested in the proceeds of the subsequent sale
shall abate to the extent (if any) to which they were
increased by the non-participation of the excluded
person in the proceeds of the previous sale, and shall
to that extent be applied in or towards payment to
that person of the share to which he would have been
entitled in the proceeds of the previous sale if his claim’
thereto had been established in due time.

6. In an action for partition a request for
Request by

sale may be made or an undertaking to pur- married
chase given on the part of a married woman, infant,’or
infant, person of unsound mind, or person tnder.

. “7: disability.
under any other disability, by the next
friend, guardian, committee in lunacy (if so authorized
by order in lunacy), or other person authorized to act
on behalf of the person under such disability, but the
Court shall not be bound to comply with any such
request or undertaking on the part of an infant unless
it appear that the sale or purchase will be for his

benefit.

7. For the purposes of the Partition Act, , sion for

1868, and of this Act, an action for parti- pazition to |

tion shall include an action for sale and dis- 2¢jien for

tribution of the proceeds, and in an action @pyjbutom
for partition it shall be sufficient to claim a °°
sale and distribution of the proceeds, and it shall not
be necessary to claim a partition.

41
482 30 AND 31 viIcTORIm, cap. 48.

 

Sale of Land by Auction.

 

30 AND 31 Vict. Cap, XLVITI.
An Act for Amending the Law of Auctions of Estates.

[15Ta Jury, 1867.

BE it enacted and declared by the Queen’s most ex-
cellent Majesty, by and with the advice and consent of
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows:

seals 1. This Act may be cited for all purposes
"as the Sale of Land by Auction Act, 1867.
Commence. 2+ This Act shall commence and take effect
mentofAct. on the first day of August, 1867.

; 3. “ Auctioneer” shall mean any person
nterpreta- 5 . .
tion of selling by public auction any land, whether
in lots or otherwise :

“Land” shall mean any interest in any messuages,
lands, tenements, or hereditaments, of whatever tenure:

“Agent” shall mean the solicitor, steward, or land
agent of the seller :

“Puffer” shall mean a person appointed to bid on
the part of the owner.
30 AND 31 VICTORLH, CAP. 48. 483

 

Sale of Land by Auction.

 

4, And whereas there is at present a con- :
flict between Her Majesty’s Courts of Law ralaeatd:
and Equity in respect to the validity of sales alig invalid
by auction of land where a puffer has bid, ~ ae
although no right of bidding on behalf of the owner
was reserved, the Courts of Law holding that all such
sales are absolutely illegal, and the Courts of Equity
under some circumstances giving effect to them, but
even in Courts of Equity the rule is unsettled: And
whereas it is expedient that an end should be put to
such conflicting and unsettled opinions: Be it there-
fore enacted, that from and after the passing of this
Act whenever a sale by auction of land would be in-
valid at Law by reason of the employment of a puffer,
the same shall be deemed invalid in Equity as well as
at Law.

5, And whereas as sales of land by auction .
are now conducted many of such sales are spesting |
illegal, and could not be enforced against an out reserve,
unwilling purchaser, and it is expedient for
the safety of both seller and purchaser that such sales
should be conducted as to be binding on both parties:
Be it therefore enacted by the authority aforesaid as
follows:.That the particulars or conditions of sale by
auction of any land shall state whether such land will
be sold without reserve, or subject to a reserved price,
or whether a right to bid is reserved; if it is stated
that such land will be sold without reserve, or to that
484 30 anp 31 VICTORIE, CAP. 48.

 

Sale of Land by Auction.

 

effect, then it shall not be lawful for the seller to employ
any person to bid at such sale, or for the auctioneer to
take knowingly any bidding from any such person. (a)

seen: 6. And where any sale by auction of land
specting.., is declared either in the particulars or con-
toright of | ditions of such sale to be subject to a right
ashe may for the seller to bid, it shall be lawful for the
Proper. seller or any one person on his behalf to bid
at such auction in such manner as he may think proper.
practiceot 2»: And whereas it is the long-settled prac-
opening yy tice of Courts of Equity in sales by auction

exder of of land under their authority to open bid-

excepto += dings even more than once, and much incon-

dae” °° venience has arisen from such practice, and
tinued. jt is expedient that the Courts of Equity
should no longer have the power to open biddings
after sales by auction of land under their authority :
Be it further enacted by the authority aforesaid, that
the practice of opening the biddings on any sale by
auction of land or by virtue of any order of the High
Court of Chancery shall, from and after the time ap-
pointed for the commencement of this Act, be discon-
tinued, and the highest bond fide bidder at such sale,
provided he shall have bid a sum equal to or higher
than the reserved price (if any), shall be declared and

 

(a) In Gilliat ». Gilliat, L. R. 9 Eq. 60, it was held that it is
illegal to employ a person to bid up to the reserved bid, unless
the right to do so is expressly stipulated for.
30 AND 31 VICTORIA, CAP. 48. 485

 

Sale of Land by Auction.

 

allowed the purchaser, unless the Court or Judge shall,
on the ground of fraud or improper conduct in the
management of the sale, upon the application of any
person interested in the land (such application to be
made to the Court or Judge before the Chief Clerk’s
certificate of the result of the sale shall have become
binding), either open the biddings, holding such bidder -
bound by his bidding, or discharge him from being the
purchaser, and order the land to be resold under such
terms as to costs or otherwise as the Court or Judge
shall think fit.

8. Except as aforesaid, nothing in this cee
. Ourt 0.
Act contained shall affect any sale of land Chancery,
Cash

made under or by virtue of any order of the penne
High Court of Chancery in England, of the from orera-
High Court of Chancery in Ireland, or of the

Landed Estates Court there, or of the Court of Chan-
cery in the County Palatine of Lancaster, or of any

County or other Court having jurisdiction in Equity.

9. This Act shall not extend to Scotland. Notts

extend to
Scotland.
486 36 AND 37 VICTORIZ, CAP. 66.

 

The Supreme Court of ; Judicature Act, 1873.

36 AND 37 Vict. Cap. LXYI.

The Supreme Court of Judicature Act, 1873.

SEcTIoNn 24.

IN every civil cause or matter commenced
Equity tobe in the High Court of Justice Law and Equity
rently ad. shall be administered by the High Court of
mone: Justice and the Court of Appeal respectively
according to the Rules following :

(1.) If any plaintiff or petitioner claims to be en-
titled to any equitable estate or right or to relief upon
any equitable ground against any deed, instrument, or
contract, or against any right, title, or claim whatso-
ever asserted by any defendant or respondent in such
cause or matter, or to any relief founded upon a legal
right, which heretofore could only have been given by
a Court of Equity, the said Courts respectively, and
every judge thereof, shall give to such plaintiff or pe-
titioner such and the same relief as ought to have been
given by the Court of Chancery in a suit or proceed-
ing for the same or the like purpose properly instituted
before the passing of this Act.
36 AND 37 VICTORIA, CAP. 66. 487

 

The Swpreme Court of Judicature Act, 1873.

 

(2.) If any defendant claims to be entitled to any
equitable estate or right, or to relief. upon any equi-
table ground against any deed, instrument, or contract,
or against any right, title, or claim asserted by any
plaintiff or petitioner in such cause or matter, or alleges
any ground of equitable defence to any claim of the
plaintiff or petitioner in such cause or matter, the said
Courts respectively, and every Judge thereof, shall
give to every equitable estate, right, or ground of relief
so claimed, and to every equitable defence so alleged,
such and the same effect by way of defence against the
claim of such plaintiff or petitioner, as the Court of
Chancery ought to have given if the same or the like
matters had been relied on by way of defence in any
suit or proceeding instituted in that Court for the
same or the like purposes before the passing of this
Act.

(3.) The said Courts respectively, and every Judge
thereof, shall also have power to grant to any defend-
ant in respect of any equitable estate or right, or other
matter of equity, and also in respect of any legal estate,
right, or title claimed, or asserted by him, all such re-
lief against any plaintiff or petitioner as such defend-
ant shall have properly claintéd by his pleading, and
as the said Courts respectively, or any Judge thereof,
might have granted in any suit instituted for that pur-
pose by the same defendant against the same plaintiff
or petitioner; and also all such relief related to or con-
488 36 AND 37 VICTORLE, CAP. 66.

 

The Supreme Court of Judicature Act, 1873.

 

nected with the original subject of the cause or matter,
and in like manner claimed against any other person,
whether already a party to the same cause or matter or
not, who shall have been duly served with notice in
writing of such claim pursuant to any Rule of Court
or any order of the Court, as might properly have been.
granted against such person if he had been made a de-
fendant to a cause duly instituted by the same defend-
ant for the like purpose; and every person served with
any such notice shall thenceforth be deemed a party to
such cause or matter, with the same rights in respect
of his defence against such claim, as if he had been
duly sued in ordinary way by such defendant.

x

(4.) The said Courts respectively, and every J udge
thereof, shall recognize and take notice of all equitable
estates, titles, and rights, and all equitable duties and
liabilities appearing incidentally in the course of any
cause or matter, in the same manner in which the Court
of Chancery would have recognized and taken notice
of the same in any suit or proceeding duly instituted
therein before the passing of this Act.

(5.) No cause or proceeding at any time pending in
the High Court of Justice, or before the Court of Ap-
peal, shall be restrained by prohibition or injunction ;
but every matter of equity on which an injunction
against the prosecution of any such cause or proceeding:
might have been obtained, if this Act had not passed,
36 AND 37 VICTORIA, CAP. 66. 489

 

The Supreme Court of Judicature Act, 1873.

 

either unconditionally or on any terms or conditions,
may be relied on by way of defence thereto: Provided
always, that nothing in this Act contained shall dis-
able either of the said Courts from directing a stay of
proceedings in any cause or matter pending before it
if it shall think fit; and any person, whether a party
or not to any such cause or matter, who would have
been entitled, if this Act had not passed, to apply to
any Court to restrain the prosecution thereof, or who
may be entitled to enforce, by attachment or otherwise,
any judgment, decree, rule, or order, contrary to which
all or any part of the proceedings in such cause or mat-
ter may have been taken, shall be at liberty to apply
to the said Courts respectively, by motion in a sum-
mary way, for a stay of proceedings in such cause or
matter, either generally or so far as may be necessary
for the purposes of justice; and the Court shall there-
upon make such order as, shall be just.

(6.) Subject to the aforesaid provisions for giving
effect to equitable rights and other matters of equity in
manner aforesaid, and to the other express provisions
of this Act, the said Courts respectively, and every
Judge thereof, shall recognize and give effect to all
legal claims and demands, and all estates, titles, rights,
duties, obligations, and liabilities existing by the com-
mon law or by any custom, or created by any statute,
in the same manner as the same would have been rec-
ognized and given effect to if this Act had not passed
490 36 AND 37 VICTORLE, CAP. 66.

 

The Supreme Court of Judicature Act, 1873.

 

by any of the Courts whose jurisdiction is hereby trans-
ferred to the said High Court. of Justice.

(7.) The High Court of Justice and the Court of
Appeal respectively, in the exercise of the jurisdiction
vested in them by this Act in every cause or matter
pending before them respectively, shall have power to
grant, and shall grant, either absolutely or on such
reasonable terms and conditions as to them shall seem
Just, all such remedies whatsoever as any of the parties
thereto may appear to be entitled to in respect of any
and every legal or equitable claim properly brought
forward by them respectively in such cause or matter;
so that, as far as possible, all matters so in controversy
between the said parties respectively may be completely
and finally determined, and all multiplicity of legal
proceedings concerning any of such matters avoided.

SECTION 25.

; And whereas it is expedient to take occa
ulesoflaw , 5
then cer-_,, Sion of the union of the several Courts whose
Jurisdiction is hereby transferred to the said
High Court of Justice to amend and declare the law
to be hereafter administered in England as to the mat-
ters next hereinafter mentioned; Be it enacted as fol-
lows:
86 AND 37 VICTORIA, CAP. 66. 491

 

The Supreme Court of Judicature Act, 1873.

 

(1.) [By the Supreme Court of Judicature id
Act, 1875 (38 and 39 Vict. ¢. 77), s. 10, an tration of
enactment is made in lieu of this Ist sub- solvent es-

section; for which see supra, par. 472.] tates,

(2.) No claim of a cestui que trust against . i. or
UW

his trustee for any property held on an ex- Limitation

inapplicable

press trust, or in respect of any. breach of to express
trusts.

such trust, shall be held to be barred by any
Statute of Limitations.

(3.) An estate for life without impeach- 5, .itabe
ment of waste shall not confer or be deemed ***
to have conferred upon the tenant for life any legal
right to commit waste of the description known as
equitable waste, unless an intention to confer such right
shall expressly appear by the instrument creating such
estate.

(4.) There shall not, after the commence-
ment of this Act, be any merger by opera-
tion of law only of any estate, the beneficial interest in
which would not be deemed to be merged or extin-

guished in equity.

Merger.

(5.) A mortgagor entitled for the time guts for
being to the possession or receipt of the rents eee
and profits of any land as to which no notice eenee

of his intention to take possession or to enter into the
492 36 AND 37 VICTORIA, CAP. 66.

 

The Supreme Court of Judicature Act, 1873.

 

receipt of the rents and profits thereof shall have bee
given by the mortgagee, may sue for such possession
or for the recovery of such rents or profits, or to pre
vent or recover damages in respect of any trespass o1
other wrong relative thereto, in his own name only
unless the cause of action arises upon a lease or othe
contract made by him jointly with any other person.

Assignment  (6.) Any absolute assignment, by writing
of debts and

choses in Under the hand of the assignor (not purport:
acuion: ing to be by way of charge only), of any
debt or other legal chose in action, of which express
notice in writing shall have been given to the debtor,
trustee, or other person from whom the assignor would
have been entitled to receive or claim such debt o1
chose in action, shall be, and be deemed to have been
effectual in law (subject to all equities which would
have been entitled to priority over the right of the as-
signee if this Act had not passed), to pass and transfer
the legal right to such debt or chose in action from the
date of such notice, and all legal and other remedies
for the same, and the power to give a good discharge
for the same, without the concurrence of the assignor :
Provided always, that if the debtor, trustee, or other
person liable in respect of such debt or chose in action
shall have had notice that such assignment is disputed
by the assignor or any one claiming under him, or of
any other opposing and conflicting claims to such debt
or chose in action, he shall be entitled, if he think fit,
36 AND 37 VICTORIA, CAP. 66. 493

 

The Supreme Court of Judicature Act, 1873.

 

to call upon the several persons making claim thereto,
to interplead concerning the same, or he may, if he
think fit, pay the same into the High Court of Justice
under and in conformity with the provisions of the
Acts for the relief of trustees.

(7.) Stipulations in contracts, as to tiMe gioutation
or otherwise, which would not before the 2o.00oNe
passing of this Act have been deemed to be ila
or to have become of the essence of such contracts in a
Court of Equity, shall receive in all Courts the same
construction and effect. as they would have. heretofore

received in Equity.

(8.) A mandamus or an injunction may
be granted or a receiver appointed by an ae
interlocutory order of the Court in all cases pane
in which it shall appear to the Court to be just or con-
venient that such order should be made; and any such
order may be made either unconditionally or upon
such terms and conditions as the Court shall think
just; and if an injunction is asked, either before, or at,
or after the hearing of any cause or matter, to prevent
any threatened or apprehended waste or trespass, such
injunction may be granted, if the Court shall think fit,
whether the person against whom such injunction is
sought is or is not in possession under any claim of
title or otherwise, or (if out of possession) does or does
not claim the right to do the act sought to be restrained
494 36 AND 37 VICTORI®, CAP. 66.

 

The Supreme Court of Judicature Act, 1873.

 

under any color of title, and whether the estates claimed
by both or either of the parties are legal or equitable.

(9.) In any cause or proceeding for dam-
sonison aft ages arising out of a collision between
ee two ships, if both ships shall be found to
have been in fault, the rules hitherto in force in the
Court of Admiralty so far as they have been at vari-
ance with the rules in force in the Courts of Common
Law, shall prevail.

(10.) In questions relating to the custody
and education of infants the Rules of Equity
shall prevail.

Infants.

(11.) Generally in all matters not here-
inbefore* particularly mentioned, in which
there is any conflict or variance between
the Rules of Equity and the Rules of the Common
Law with reference to the same matter, the Rules of
Equity shall prevail:

Cases of con-
flict not
enume-
rated.

SEcTIoN 89.

Every inferior Court which now has or

Powers of : é ‘

inferior | Which may after the passing of this Act

Courts ee ae : . :

having have jurisdiction in Equity, or at Law and in
quity an

Admiralty Equity, and in Admiralty respectively, shall,
jurisdiction. : . a1 .
as regards all causes of action within its
36 AND 87 VICTORIM, CAP. 66. 495

 

The Supreme Court of Judicature Act, 1873.

 

jurisdiction for the time being, have power to grant,
and shall grant in any proceeding before such Court,
such relief, redress, or remedy, or combination of rem-
edies, either absolute or conditional, and shall in every
such proceeding give such and the like effect to every
ground of defence or counter-claim equitable or legal
(subject to the provision next hereinafter contained), in
as full and ample a manner as might and ought to be
done in the like case by the High Court of Justice.

SEcTION 90.

Where in any proceeding before any such (unter.

inferior Court any defence or counter-claim s3imsin

of the defendant involves matter beyond fours. and

the jurisdiction of the Court, such defence ‘7.

or counter-claim shall not affect the competence or the
duty of the Court to dispose of the whole matter in
controversy so far as relates to the demand of the plain-
tiff and the defence thereto, but no relief exceeding
that which the Court has jurisdiction to administer
shall be givén to the defendant upon any such coun-
ter-claim: Provided always, that in such case it shall
be lawful for the High Court, or any Division or
Judge thereof, if it shall be thought fit, on application
of any party to the proceeding, to order that the
whole proceeding be transferred from such inferior
Court to the High Court, or to any Division thereof ;
496 36 AND 37 VICTORIM, CAP. 66.

 

The Supreme Court of Judicature Act, 1873.

 

and in such case the Record in such proceeding shall
be transmitted by the Registrar, or other proper officer,
of the inferior Court to the said High Court; and the
same shall thenceforth be continued and prosecuted in
the said High Court as if it had been originally com-
menced therein.

SECTION 91.

Fitavak The several rules of Law enacted and de-
nes clared by this Act shall be in force and re-
vor Courts. ceive effect in all Courts whatsoever in Eng-
land, so far as the matters to which such rules relate

shall be respectively cognizable by such Courts.
INDEX.

Tho figures refer to the paragraphs, and not to the pages,
except where otherwise indicated.

A.

ABATEMENT,
of debts and legacies, 471

ACCIDENT,
definition of, 61-3
remediable at law, 64
not remediable at law or in equity, 65-9
remediable in equity, 70-9
arising from neglect, 66
preventing fulfilment of engagement, 67
to property in lease, 67
death of vendor before receipt of annuity, 67
defective execution of a will, 69
defective execution or non-execution of a power, 77-9
loss of deeds, 71-4
loss of bonds and unsealed securities, 75, 76,

ACCOUNT, 454-465
settlement of accounts, 454
division of accounts, 455
open accounts, 456
stated accounts, 457, 458
settled accounts, 459-463
appropriation of payments, 464
partnership account, 643
agency, 465, 664
mesne profits, 665
waste, 666
tithes and moduses, 667

ACQUIESCENCE,
in a breach of trust, 373
42
498 INDEX.

ACTION, THINGS IN,
assignment of, 432-9

ADEMPTION,
of portions under a settlement, 704-7
of legacies to a child, 708, 709
no ademption of legacies to strangers, 710

ADMINISTRATION,
jurisdiction as to, 466
proceedings by executor or administrator, 467
roceedings of creditors, 468
ivision of assets, 469, 470
of legal assets, 469, 471
of equitable assets, 469-471
of assets of insolvent estates and companies, 472
refunding share of estate, 473
operation of the statute of limitations as regards debts, 474
order of administration of different properties in payment of
debts, legacies, and annuities, 475-488
order of satisfaction, 489-492
marshalling of assets, 493-500
in the case of charitable legacies, 496, 497
foreign assets, 501-4

ADMINISTRATORS. See ADMINISTRATION.
may not derive a benefit, 163
purchase from, 192

ADVANCEMENT, 313, 314, 825

ADVISER,
fraud of a confidential, 153

ADVOWSON,
mortgage of, S24
AGENCY, 664, 743
AGENT,
fraud. of an, 160, 362-4
sales and purchases by, 160, 162, 365
gift to, 365
liability to account, 465-
AGREEMENT. See Fravp—Sprciric PERFORMANCE.
ALIEN,
trust for an, 271

ALIENATION,
restraint on, 851
INDEX. 499

ANNUITY,
not a satisfaction, 714

ANTICIPATION,
restraint on, 851, 852

APPOINTMENT. See Powers.
fraudulent, 201-3
election, in case of an, 681
satisfaction by an, 714

APPORTIONMENT, 622-636

APPRENTICE FEE,
apportionment of, 624

APPRENTICESHIP,
specific performance of articles of, 405
cancellation of, 819

ARBITRATION,
interference of equity in regard to, 440-3

ASSETS. See ADMINISTRATION.

ASSIGNMENT,
right to call for, 48
for benefit of creditors, 247-252
in another’s name, 311-314
against public policy, 428, et seq.
of pay, pensions, or prize-money, 429
of pretended titles, 430
of mere naked rights to litigate, 431
of possibilities, or things in action, 432-9
what amounts to an, 435
what must be done to obtain quasi possession under an assign-
ment, 436
of mortgage, 578-582
payment to assignee of a debt, 437
assignee taking subject to equities of assignor, 439
suit against equitable assignee of a legal term, 438
of dower, 724

AUCTIONEERS,
purchases by, 162

AUCTIONS,
frauds on, 178

AWARDS,
disclosing grounds of, 440
not compelled, 440
enforcing, 441 -
setting aside, 442
500 INDEX.

B.

BANKRUPTS, .
solicitors and trustees becoming purchasers, 162

BILL IN PARLIAMENT,
fraud in relation to, 142

BILL OF EXCHANGE,
destruction of, 76

BILLS OF PEACE, 747-751

BONDS,
lost, 75
post-obit, 172
assignment of, 436
delivery up of, 738

BOUNDARIES,
settlement of, 720-3 _

BREACH,
of trust. See TrRust—TrRustEEs—EXEcUTORS.

c.

CANCELLING, 725-738
mortgage, 587
apprenticeship, 819

CARGO,
assignment of, 433
contribution, 636

CHAMPERTY, 145, 430

CHARGE,
what debts included, 303
trust created by, 301
devise charged with or subject to charge of debts, 301
of debts, 301-310
of legacies, 304-305 a
mode of giving effect to, 306-310

CHARITIES, :

jurisdiction as to, page 141, n.

favored in regard to the want of proper trustees, 273
defects in conveyances, 274
the objects, 275, 276
surplus income, 277
lapse of time, 278
Stat. 27 Eliz. c. 4, par. 193, et seg.
INDEX. 501

CHARITIES—(continued.)
abroad, 279
reward to informers as to, 280
altering a charity, 281

CHATTELS,
delivery of, 791

CHILDREN. See Inrants.
what children to be included, 210
construction of provisions for younger children, 216
removal of children from their parents, 799
waiver of provision for, 889
frauds on, 149, 150

COLONIAL,
property or contracts, 54-8

COMMON,
proceeding to establish a right of, 749

COMPENSATION,
old rule as to, 668
Stat. 21 & 22 Vict. v. 27, s. 1, as to damages, 668
to a defendant, 669
relief against penalties and forfeitures, 670-4
no relief against liquidated damages, 675
for a breach of covenant or condition, 676
relief against statutory penalties or forfeitures, 677

COMPROMISE, 88
CONCEALMENT, 116-121, 176-186
CONDITION. See Contract.
illegal, 138, 286
relief against breach of, 670, 676
CONFIRMATION,

distinction between void and voidable transactions, as regards
confirmation, 146, 147

CONSENT,

refusal of consent to a marriage, 126

CONSIDERATION. See Fravp.
inadequate, 122-5
excessive, 172-4
conveyance without consideration, 183, 184, 193-200, 287~29(
agreement not generally enforced in the absence of a valuable
consideration, 245, 421

CONSIGNMENT,
revocableness of, 253
502 INDEX.

CONTINGENT INTERESTS,
assignment of, 433

CONTINGENT REMAINDERS,
trustees to support, 388

CONTRACT. See Fraup—Sreciric PERFORMANCE.

CONTRIBUTION. See INcUMBRANCES.
towards incumbrances, 625-631
towards charges of renewal of leaseholds, 632
between sureties, 633-5
towards a loss or expense in a voyage, 636

CONVERSION,

change in the character of property by agreement or direction
to convert, 41-7, 409, 410 .

undisposed of produce of real estate, 295, 296

undisposed of part of mixed fund, 297

undisposed of part of money directed to be converted, or of
the produce thereof, 298

failure of objects for, 299

of terminable or reversionary property, 359

time allowed for, 360

of infant’s property, 800

CONVEYANCE,
with notice of another’s title, 187-191
without consideration, and without use or trust, 287-290
in another’s name, 311-314
right to call for, 48

COPIES,
of deeds, 736

COPYRIGHT,
injunctions to restrain infringements of, 772-775

COSTS,
mortgage for, 566
mortgagee’s costs of suit, 521

COUNSEL,

purchase by, 162
COUNTER-CLAIM, 117, 659-663. See Srt-orr.
COVENANT,

where distributive share is a satisfaction of an obligation

by, 5
must be fulfilled, notwithstanding accident, 67
to purchase lands, 316
to leave property, 181

a
INDEX. 503

COVENANT—(continued.)
to settle lands, 317
to convey, transfer, or pay money or other property, 325, 326
to aoe charge, dispose of, or affect after-acquired property,

where relief is granted as to a breach of, 670, 676

CREDITORS. See Drzrtor.
favored, 302
purchases by, 162
frauds on, 185, 186
frauds by, 164, 181
assignments for benefit of, 247-252
preferences of, 185, 186, 248
payment of legatees or distributees before, 324
where they cannot follow the assets, 382-4
proceedings of, 468
rights of joint creditors of a partnership, 648
priority as between joint and separate creditors of partner-
ship, 649
may proceed against a deceased partner's or joint debtor’s
estate in the first instance, 650, 651
election in the case of, 694
legacies to, 712
by, 713
right to benefit of securities, 654-8
rights as against general appointee, 203

CRIMINAL PROCEEDINGS,
suppression of, 144

CY PRES DOCTRINE, 276

D.

DAMAGES, 668-678. See CoMPENSATION.

DEBTOR. See CREDITORS. 3 ;

frauds in the case of persons standing in the confidential re-
lation of debtor, creditor, and surety, 164

legacies by, 712

legacies to, 713 ’

direction to debtor to hold for a third person, 230 —

proceedings against estate of deceased joint debtor in the first
instance, 650, 651

DEBTS. See Srt-orF.
not attached in equity, 32
what included in a charge, or trust, or power, for payment of
debts, 303
504 INDEX.

DEBTS—(continued.)
devise in trust to pay, 301
devise charged with or subject to, 301
indirect charge of, 302
collateral securities for a debt assigned, 318
due from executor, 340
assignment of, 436 :
payments to assignee of a debt, 437
payment of mortgage debt, 479-482, 489-491, 569-572
by breach of trust, 370-4
operation of Statute of Limitations as regards, 474
executor personally liable for, 382, 383
abatement of, 471
order of administration of different properties in payment of,
475-488
marshalling of securities, 652, 653

DECLARATION,
of trust, 228-230, 238

DEEDS. See Mistaxr.
destroyed, lost, or suppressed, 71-4
production of, by mortgagee, 526
cancelling, delivering up, and securing, 725-738
inspection and copies of, 736

DELIVERING UP,
of documents, 725-738
of chattels, 791

DEPOSIT,
of documents, 790
mortgage by, 592-601

DEVISEES. See Wit.
under a will defectively executed, 69

DIRECTORS,
remuneration, 345

DISABILITY. See Inranrs—Lunatics—MARRIED WomeEN.
to contract, 419
election by persons under, 696

DISCOVERY, 905

DISTRIBUTIVE SHARE,
where a satisfaction of a covenant, 52

DOCTOR,
fraud of a, 159
INDEX. 505

DOCUMENTS,
cancelling, delivering up, and securing, 725-738
inspection and copies of, 736
deposit of, 790

DOMICILE,
how far the law of domicile governs, 56, 57, 501-4

DONATIONES MORTIS CAUSA, 219-223

DOWER,
right to, 238
assignment of, 724

DURESS,
frauds on persons under, 131

E.

ELECTION,

defined, 679

at law, 680

in equity, 681-7

as to one benefit given by will, 688

need not be made in ignorance of circumstances, 690, 691

presumed, 692, 693

in the case of creditors, 694

by a person under disability, 696

in the case of a settlement, 689

in the case of a gift under a mistake, 695

by persons having separate rights as next of kin of a person
who died without electing, 697

EQUITY,
follows the law, 26-32
only assists the vigilant, 33
equal equity, 34, 68
equality is, 35
he who seeks equity must do equity, 38-40
regards as done what ought to have been done, 41-9
to asettlement. See MarRiep WoMEN.

EQUITY JURISDICTION;

where equity had exclusive jurisdiction, 7

where equity had concurrent jurisdiction, 8-14
on account of the inadequacy of the legal relief, 8
or to avoid circuity of action, or multiplicity of suits, 9
or to take due care of the rights of all, 10
or on account of the necessity for a discovery, 12
or on account of the original denial of due relief at law, 13

43
506 INDEX.

EQUITY JURISDICTION—(continued). ]
or the doubtfulness of obtaining such relief, 14
where equity had auxiliary jurisdiction, 15
where it had no jurisdiction, 16-18

EQUITY JURISPRUDENCE. See Narurat JUSTICE.
definition of, 2
true character of, 3-6
division of, 60
remedial equity, 61-205
executive equity, 206-453
adjustive equity, 454-724 .
protective equity, irrespective of disability, 725-791
protective equity, in favor of persons under disability, 792-904

EQUITY OF REDEMPTION, 513, 551-7, 605

EXECUTOR. See Trusrers—Hxrrr—NeExt oF KiIn—SvURPLUS.
may not derive a benefit, 161, 163, 365
remuneration, 345 ‘
fraudulent dealing with executors or administrators, 192
sales or pledges by, 192, 382
distinction between trustees and executors in regard to the
effect of joining in receipts, 367, 368
liability, power, and duty of, 382-7
notice to, of possible contingent liability, 393
indebted to testator’s estate, not entitled in right of wife, 888
trust of debt due from, 340, 355-7
right of executor to residue, 294
time allowed for breaking up testator’s establishment, 402

EXONERATION,
of personal estate from debts, 476-488
of specific legacy, 499

EXPECTANTS,
dealings with, 165-173, 433

EXTINGUISHMENT,
of mortgage, 587-9

F.
FALSIFY,
liberty to surcharge and falsify, 458, 459
FAMILY,

meaning of, 233
FAMILY ARRANGEMENT, 88, 125
INDEX. 507

FINE, ;
proceéding to settle fine payable by copyholders, 749

FORECLOSURE, 537-9, 548, 551. See Equrry or RepEMP-
TION.
mortgagee’s cost of suit, 521

FOREIGN,
property or contracts, 54-8
ignorance of foreign law, 85
assets, 501-4
judgments i in foreign courts, 54°
suit, injunction against, 7 78

FORFEITURE, 670-8
FORGED INSTRUMENTS, 734

FRAUD IN GENERAL,
unsafe to define fraud in general, or the extent of remedial
equity on the ground of fraud, 103
no relief to participator in, 36, 37
contract induced by fraud, not void, 113
where it may be enforced, 113-115
transfer of a right to complain of a fraud, 431

FRAUD, ACTUAL,

where no relief, 105, 108

definition thereof, 104

jurisdiction in cases of, 105, 106
evidence thereof, 107, 108

division of, 110, 111

first class of actual fraud, 112
1. Misrepresentation, 112-115
2. Concealment, 116-121
3. Inadequacy, 122-5
4, Refusal of consent to a marriage, 126

second class of actual frauds, 127
1. On persons of unsound mind, 128
2. On intoxicated persons, 129
8. On persons of weak understanding, 130
4. On persons who are not free agents, but under duress,

or in fear, or in prison, or in extreme necessity, 131

5. On infants, 132, 1324

case when one of two innocent persons must suffer by the fraud
of another, 133

FRAUD, CONSTRUCTIVE,
definition of, 134
four classes of constructive frauds, 135-205

frauds on public policy,
508 INDEX.

FRAUD, CONSTRUCTIVE—(continued.)
1. Marriage brokage contracts, 136
2. Agreements to influence testators, 137
38. Contracts to facilitate marriages, 138
4, Contracts or conditions in restraint of marriage, or in-
consistent with the duty of married life, 139, 140
. Contracts or conditions in restraint of trade, 141
. Fraud in relation to a bill in Parliament, 142
. Contracts for public offices, 143
. Suppression of criminal proceedings, 144
. Champerty and corrupt considerations, 145
frauds in the case of persons in confidential relations, 148
. Parent, or person in loco parentis, 149, 150
. Guardian, 151, 152
. Quasi guardian, adviser, or minister of religion, 153
. Solicitor, 154-8
. Doctor, 159
. Agent, 160
. Trustee, 161
. Counsel, agents, trustees, and solicitors of bankrupts
or insolvents, auctioneers, and creditors, 162
. Executor or administrator, 163
10. Debtor, creditor, and surety, 164
frauds in the case of persons peculiarly liable to be imposed
on, 165
1. Bargains with expectant heirs, remaindermen, and
2 reversioners, 166-171
2. Post-obit bonds, etc., by expectants, 172
8. Sales to expectants at exorbitant prices, 173
4, Bargains with common sailors, 174
5. Disposition by a person soon after attaining his ma-
jority, 175
virtual frauds on individuals, irrespective of any confidential
relation, or any peculiar liability to imposition, 176
1. Misleading, 177
. Frauds on auctions, 178
- Unconscientious use of the Statute of Frauds, 179
. Clandestine marriage contracts, 180 :
. Frauds on marriages, 181
. Frauds on marital rights or expectations, 182
. Frauds under the stat. 13 Eliz. c. 5, 183, 184
. Frauds on creditors, parties to a composition deed, 185
. Mortgage, conveyance, or settlement, with notice of
another’s title, 187-191
i Haydulsak dealing with executors or administrators,
. Frauds under the stat. 27 Eliz. ‘ce. 4, 193-9

OID AH

CONT SD OUP CO be

oO

OmOIH ob wb

1
—_- &
“INDEX. 50

FRAUD CONSTRUCTIVE—(continued).
12. Frauds in the case of voluntary gifts, as against th
donors themselves, 200 .
13. Fraudulent appointments, 201-3
14, Extinguishing consideration for a contract, 204
15. Rescinding contract, in order to benefit by flaw i
title, 205

FRAUDS, STATUTE OF, 179, 228, 444, et seg.

FREIGHT,
assignment of, 433, 436
contributions, 636

G.

GAMING SECURITIES, 730
GENERAL AVERAGE, 636

GUARDIANS. See Inranrs.
fraud of, 151, 152

H.
HEIR,

promising to convey to younger brother, 31

right to surplus interest in a term or other particular interes!
292, 293 ig

right to undisposed of produce of real estate, 295, 296

right to undisposed of part of mixed fund, 297

bargains with expectant, 166-8

post-obit bonds by, 172

sales to expectant heirs at exorbitant prices, 173

HEIRLOOMES,
equity has no jurisdiction to sell heirlooms in strict settle
ment, except for payment of debts. Fane v. Fane, L. R
2 Ch. D. 711; D’ Eyncourt v. Gregory, L. R. 3 Ch. D. 63:

HUSBAND. See Marriep WomEN.
fraud on, 182

I.
IMPROVEMENTS,
trust in respect of, 323
INADEQUACY, 122-5
INCUMBRANCES. See Morreaces.
apportionment of, 625-631
voluntary discharge of, 626

compulsory discharge of, 627
keeping down interest on, 628-631
510 INDEX.

INFANTS,

jurisdiction as to, 792, 793 2 :
appointment, removal, control, and assistance of guardians,
794-8
religion, 796
removal from their parents, 799
conversion of their property, 800
maintenance, 803-9
foreign property of, 810
wards of gcourt,
who are, 801
acts affecting them, 802
marriage of, 811-813
settlement on wards of court, 814-816
settlement on infants who are not wards of court, 817
eare of, 818
frauds on, 132, 132a, 149-152
fraudulent appointments to, 202
statute as to, 132a
agreements by, 419
charge by, 536
election by, 696

INFORMATION,

duty of trustee tg give, 401

INJUNCTIONS,

I.

II.

To restrain proceedings at law, page 388, note

common, page 388, note

special, page 388, note

perpetual and total, or otherwise, page 389, note

at any stage of the action, page 389, note

after judgment, page 389, note

when granted, page 389, note

not granted except against civil proceedings, page 390, note
to whom addressed, page 391, note

In other cases :

jurisdiction, 756

different kinds, 759, 760

equity will not limit power of granting, 762

general rule as to cases where they will be granted, 761, 762

against waste, 761, 763-9

against nuisances, 770

against infringements of patents and copyrights, and publica-
tion of letters, 771-6» prneee ge

against application to Parliament, 777

against a foreign suit, 778

to do some act, 779
INDEX. 511

INSOLVENT,
trustees and solicitors of, becoming purchasers, 162

INSPECTION,
of deeds, 736

INTEREST,
conversion into principal, 517
increase of, 518
rent instead of, 565
keeping down, 628-631
INTERPLEADER,
at common law, 739
defined, 740
by a tenant, 741
by an agent, 743
by a sheriff, 744
connection between the titles of the two claimants, 742
ability to admit title of either claimant, 744
actual proceedings not necessary, 745
preliminaries, 746
INTOXICATED PERSONS,
frauds on, 129

INVESTMENT, 350-7, 359
non-investment, 358
on mortgage, 361

J.

JOINT PURCHASE OR MORTGAGE,
doctrine of equity in regard to, 35
implied trust on, 315

JOINT TENANCY,
limitations which would create, 315
equity leans against, 35, 315

JUDGMENT,
against trustee, 378

JUDICATURE ACTS, 20. See Srarurss.

JURISDICTION. See Equity. ae
interposition of equity in regard to property out of the juris-
diction, 54-8

L.

LACHES,
consequences of, 33, 461
612 INDEX.

LEASE,
renewal of, by a trustee, partner, mortgagee, etc., 333-5
person having a limited interest, 334, 335
by a mortgagee, 514
to a mortgagee, 519

LEASEHOLD,
mortgage of, 564
charges of renewal of, 632
leaseholds not within 17 & 18 V. c. 113, 483

LEGACIES,
jurisdiction as to, 206, 207
charge of, 304-305a
payable at a future day, 208
specific legacy to one for life, remainder to another, 209
for a purpose which cannot be accomplished, 211
construction of, 217, 218
abatement of, 471
out of what payable, 476-8
ademption of, 705-718
to creditors, 712
to debtors, 713

LEGATEES,
under a will defectively executed, 69

LETTERS,
injunction to restrain the publication of, 776

LIEN,
in general, 613
of a consignee, 614
of a vendor, 327-332
of a solicitor, 616, 617
of a joint tenant, 618
of a trustee, 619
of annuitants, 620
of a legatee, 621
how enforced, 615
LIMITATIONS, STATUTE OF,
how far equity followed the law as to, 31
operation of, as regards debts, 431
as regards trusts, 278
LITIGATION,
protection from, 725-738
assignments of mere naked rights to litigate, 431

LOST,
deeds, ete., 71-6
INDEX. 513

LUNATICS AND OTHER PERSONS OF UNSOUND MIND,
frauds on, 128

M.

MAINTENANCE AND CHAMPERTY, 430
MAINTENANCE OF CHILDREN, 803-9
MANAGER, 520, 522, 523, 643

MARRIAGE,
refusal of consent to a, 126
brokage contracts, 136
contracts to facilitate, 138
contracts or conditions in restraint of, 139
clandestine marriage contracts, 180
frauds on, 181 :
frauds on marital rights, and expectations, 182
articles, execution of, 246
on the faith of a promise, 448, 450

MARRIAGE SETTLEMENT. See Accipentr—Fraup—In-
FANTS—MARRIED WoMEN—MISTAKE, ETC.

MARRIED WOMEN,
mortgage by, 320, 574, 575
agreements by them not enforced, 419
election by, 696
common-law doctrine as to, 820
powers which husband and wife have, in equity, of contract-
ing with, and giving and granting to, each other, 822-5
contracts before marriage, 822
contracts after marriage, 823
gifts and grants after marriage, 824, 825
pinmoney, 826, 827
paraphernalia, 828, 829
separate estate, 830-868
means of acquiring it, .
by gift, grant, devise, or settlement, 830
by separate earnings, 831, 834
by agreement after marriage, 831
by order of protection or judicial separation, 832, 833
under the stat. 33 & 34 Vict. c. 93, 834-845
separate earnings, 834
deposits in savings’ banks, 835, 839
funded property, 836, 839
property in a joint stock company, 837, 839
shares or benefits in a society’s funds, 838
personalty accruing during marriage, 840
realty, 841 -
514 INDEX.

MARRIED WOMEN —(eontinued.)
separate estate, means of acquiring it.
benefits under an insurance, 843, 844 :
how questions as to ownership of property to be settled
842
married women may maintain an action, 845
wife’s power _of disposing of, 846-850
restrictions against alienation or anticipation, 851-3
gifts to the husband by the wife, 854
husband’s receipt of the income, 855
liability of, 856-8
power of trustees of the wife’s personalty not settled to her
separate use, 869
wife’s equity to a settlement out of her own property, 869-891
when defendant against her husband, 871-5
against his trustees or vendees, 876-881
when plaintiff, 882
no equity out of past income, 880
life interest in wife’s personalty, 879
amount to be settled, 883
substitute for a settlement where fund is small, 884
waived, lost or suspended, 885-9
where parties are domiciled in Scotland, 890
wife’s right of survivorship, in regard to reversionary inter-
ests, 881
wife’s equity to a maintenance, in case of husband’s miscon-
duct, bankruptcy, or insolvency, 891
indebtedness of wife before her marriage, 859-866, 875
deeds of separation, 892-8
non-disclosure of antenuptial incontinence, 899
benefits under settlement not forfeited by adultery, 900
purchases of, 901
frauds of, 902, 903
money advanced for support of deserted wife, 904

MARSHALLING, 829
of assets, 493

in favor of mortgagees, and other creditors, or of
legatees, or of a portionist, or of the heir, or of a
devisee, 494

as between freehold and copyhold, 495

as between legacies charged on land and others not
so charged, 496

in the case of. charitable legacies, 496, 497

ae Pe iseen simple contract debts and a vendor’s lien,

_in favor of widow’s paraphernalia, 500
of securities, 652, 653
INDEX. 515

MAXIMS, GENERAL, 21-59
no right without a remedy, 22
where equity will give a remedy, 23-5
equity follows the law, 26-32
necessity for vigilance, 33
where equal equity, law prevails, 34
equality is equity, 85
plaintiff must have clean hands, 36, 37
plaintiff must do equity, 38-40
equity regards as done what ought to be done, 41-9
priority, 50
equity imputes intention to fulfil obligation, 51
loss must be borne by person occasioning it, 53
rules as to foreign and colonial property or contracts, 54-8
interference of courts of law with decisions of courts of equity,

MESNE PROFITS, 665

MIND. See Lunatics.
frauds on persons of weak understanding, 130

MINISTER OF RELIGION,
constructive fraud by, 153

MISDESCRIPTION,
slight, 412
substantial, 415

MISLEADING, 177
MISREPRESENTATION, 87, 112-115

MISTAKE.
defined, 80
by the sufferer alone, 81-4
mutual, 87
in or in regard to a written instrument, 89-102
ignorance of foreign law, 85
of vendor as to value, 86

MORTGAGE,
I. Mortgages of real property, 505-591

what may be mortgaged, 505
what amounts to, 506-512
mortgagee’s estate, 513
mortgagee’s possession, leases, receiving of rent, 514, 515
limit to mortgagee’s advantage, 516
conversion of interest into principal, 517
increase of interest, 518
lease to mortgagee, 519 ;
what mortgagee.may add to his. debt, 520, 521
516 INDEX.

MORTGAGE—(continued).
allowance for receiver, 522
of West India estate, 523
of advowson, 524
pre-emption, 525
production of deeds by mortgagee, 526
“right of mortgagee to devise property, 527
mortgagee, ejecting or refusing tenant, 528 —
mortgagee’s right to cut timber and open mines, 514
priority, 529-534
tacking, 529-534
with notice of another’s title, 187-191
postponement of prior mortgagee, 535, 536 :
protection of subsequent mortgagees against prior voluntary
conveyances, 193-9
mortgagee’s remedies, 537
foreclosure, 537-9
sale, 540-7
concurrent remedies, 548-550
mortgagor’s estate and rights, 551
equity of redemption, 551-7
who may redeem, 555-7
annual rests, 558
possession by mortgagor, 559, 560
rents received by mortgagor, 559
waste by him, 559
expenditure by mortgagee, 561
of leasehold, 562-4
rent instead of interest, 565
for costs, 566
_ conveyance in trust to sell, 567
joint, 315
defective, 568
payment of debt, 569-572
to be postponed till a certain time, 571
out of what, 479-482
contribution towards, 625-7
Welsh mortgage, 573
of wife’s estate, 320, 574, 575
first mortgagee answerable to second, 576
disputing mortgagor’s title, 577
assignment of, 578-582
what a purchaser of a mortgage can claim, 583
gift of mortgage security, 584
devise by a mortgagee, 585
right of purchaser of equity of redemption, 586
right of second equitable mortgagee, 586
extinguishment of debt by cancelling, 587
INDEX. 517

MORTGAGE—(continued.)
by payment or by merger, 588, 589
reconveyance, 590
death of mortgagor intestate, and without heirs, 591
II. Equitable mortgages of real property, 592-601
III. Mortgages and eae of personal property, 602-612
a mortgage and a pledge distinguished, 602
tacking, 603-604
purchase by a second mortgagee under a power of sale from
the first, 545
mortgagor’s right to redeem and mortgagee’s right to sell, 605
mortgage of shares, 606
of a ship, 607-9
pledgor’s right of redemption, 610
pledgee’s rights, 611, 612

N.

NATURAL JUSTICE. See Equity.
equity is not synonymous with, 3-5
large portion of it is left to conscience, 6
another large portion was administered in courts of law, 6
equity is only a portion of natural justice in a modified form, 6

NE EXEAT REGNO, 780-4

NEXT OF KIN,
right of, 293-8
claims of, 384

NOTES, LOST, 76

NOTICE,
two kinds of, 189
what is, 190 :
conveyance, mortgage, or settlement, with notice of another’s
title, 187-191
to executor of possible contingent liability, 393
notice of assignment, 436, 437
notice of incumbrance, 535

NUISANCES, °
injunctions to restrain, 770
oO.

OBLIGATION,
fulfilment of, 51
518 INDEX.

OFFICERS,
assignment by officers of government, 429
notice, 436

OFFICES,
contracts for, 143

P.

PARAPHERNALIA, 828, 829
marshalling in favor of, 500, 829

PARENT, cr ;
frauds of, or on a parent or person standing in loco parentis,
149, 150
removal of children from, 799

PAROL CONTRACTS,
where enforced, 444-8

PAROL PROMISE,
where enforced, 450 .

PAROL VARIATIONS OR ADDITIONS, 449

PARTITION,
suit for a partition of property out of jurisdiction, 54
mode of partition, 715
title shown, 716 .
by or against tenants who have limited interests, 717
equitable adjustments, 719
of partnership leaseholds, 644

PARTNERSHIP,
jurisdiction, 637 :
specific performance of agreement to enter into, 638
carrying into effect the articles of, 638
dissolution of, 640, 641 :
application of articles after cesser of term, 639
injury prevented, 642
account, manager, and receiver, 643
partition, 644 :
using stock after dissolution, 645
interest after dissolution, 646
property held for partnership purposes, 315, 647
rights of joint velar, 648
priority as between joint and separate creditors, 649
creditors may proceed against a deceased partner’s estate in

the first instance, 650

PATENTS,
injunctions to restrain infrigements of, 771
INDEX. 519

PAYMENT,
into Court or to the party, 789

PAYMENTS,
appropriation of, 464

PEACE,
bills of, 747-751

PENALTIES,
payment of, 453, 670-8

PINMONEY, 826, 827

PLEDGES,
distinguished from mortgages of personal property, 602.
pledgor’s right of redemption, 610
pledgee’s rights, 611, 612

POLICY, PUBLIC,

frauds on, 135-147
assignments, contracts, and covenants against, 428, et seq.

PORTIONS,
what is a portion, 212
where not to be raised, 213, 214
time for raising, 215

interest, 215 a.
satisfaction of, 704-711

POSSIBILITIES,
assignment of, 432, 433

POST-OBIT BONDS, 172
POWERS,

relief in cases of the defective execution or non-execution of,
31, 77-9, 99

effectuating the general intention of the donor of a power,
283, 284 :

PREFERENCE,
of a particular creditor, 185, 186

PRETENDED TITLES, 430

PRIMOGENITURE,
equity follows the law as to, 31

PRIORITY, 529-536
PROMISE. See Spectric PERFORMANCE.
520 INDEX.

PURCHASE,
with notice of another’s title, 187-191
in another’s name, 311-314
joint, 315
covenant or trust to purchase lands, 316
of a mortgage, 583
of a lien or mortgage by a trustee, 333
of an estate by a trustee or agent, 333, 365
money to be paid out of personal estate, 411
with right of repurchase, 506-512
of an equity of redemption, 586
from an executor or administrator, 192

PURCHASER,
for valuable consideration, rights of, 34, 68, 89, 344, 376-381
protection of subsequent, 193
purchaser’s heir may require the money to be paid out of the
personal estate, 411
his obligation to see to the application of the purchase-
money, 257-266

Q.
QUIA TIMET, 725
R.
RECEIPTS,
distinction between trustee and executors as regards joining
in, 367, 368
RECEIVER,
gift to, 365

appointment of, 643, 761, 785, 786
office, possession, and power, 787, 788
allowance to mortgagee for, 522

RECONVEYANCE, 590
RECTIFYING. See Misraxe.

REDEMPTION. See Morteace.
“RELATIONS,”
meaning of, 233
RELEASE, i
rectifying, 97
of sureties, 654-8
REMAINDERMEN,
bargains with, 165-171
INDEX. 521

REMITTANCE,
revocableness of, 253

RENEWAL, 2
of lease, by a person having a limited interest, 334, 335

RENT,
obligation to pay, notwithstanding accident, 67

RENTS,
where a suit will be entertained for the recovery of, 25

REPAIRS,
covenant to do, 67
trust in respect of, 323

REPURCHASE,
purchase, with right of, 506-512

RESIDUE,
undisposed of, 291-300

RESTS, 365, 558

REVERSIONERS,
bargains with, 165-171
cannot maintain suit for partition, 718

REVOCATION,
want of power of, 200

SAILORS,
frauds on, 174

SALE,
omission to sell, 349
by a mortgagee, 540-550, 605
conveyance in trust to sell, 567
frauds on auctions, 178

SATISFACTION,
defined, 698
where arising, 699-702
rebutted, 703
of portions secured by settlement, 704-7
of portions left by will, 708, 709
none in the case of strangers, 710, 711
of legacies to creditors, 712
of legacies to debtors, 7138
of annuity, 714
of covenant to settle lands, 714
of covenant to bequeath, 714
‘order of, 489-492 iz
522 INDEX.

SECURING,
of documents, 737

SECURITY,
in another’s name, 311-314
lost unsealed securities, 76
marshalling of securities, 652, 653 . bs
mutual right to the benefit of, between creditor and sureties,
654-8
delivery up of, 738

SEPARATION,
deed of, 892-8

SEPARATE USE. See MarrieD WoMEN.

SET-OFF,
connected accounts, 660
independent debts or demands, 661
where one debt is joint and the other separate, 662
demands in different rights, 663

SETTLEMENT. See Marriep WomMEN—MARRIAGE SETTLE-
MENT— INFANTS.
rectifying, 89-96
with notice of another’s title, 187
setting aside, 732, 733
voluntary. See CoNsIDERATION.

SHERIFF,
interpleader by, 744

SOLICITOR,
actual fraud of a, 112
constructive fraud of a, 154, 157
misappropriation of mortgage debt paid to, 572
purchase by, 162
acting for both parties, 190, 616
lien for costs, 616, 617
gifts or gratuity to a, 155-7
charges by a trustee who is a, 345

SPECIFIC PERFORMANCE,

remedy at law, 403, 406.

decree in equity where damages would not afford compensa-
tion, 404, 405

between persons claiming under the parties, 411

where terms are not complied with in non-essential particu-
lars, or where there is a slight misdescription, 412

where there is a want of title, or a substantial misdescription,

or want of reasonable compliance with terms of agreement,
415, 416 ‘
INDEX. §23

SPECIFIC PERFORMANCE—(continued.)

where there is an accidental incapacity of performing the re-
mainder of an agreement, 417

sub modo, 418

where the parties were incompetent to contract, 419

where the terms are not certain and definite, 420

“where there is no valuable consideration, 421-3

where it would be morally wrong or inequitable, 424-7

of assignments, contracts, or covenants against public policy,
428, et seq.

assignments by officers of the government, 429

assignments involving champerty, maintenance, or buying of
pretended titles, 430 ;

assignments of mere naked rights to ligitate, 431

assignments of possibilities, or things in action, 432-9

connected with arbitration, 440-3

parol contracts, 444-8

variations or additions, 449
promises, 450

agreements to borrow, 451

negative agreements, 452

not avoidable by payment of penalty, 453

of agreement to enter into a partnership, 638

STATUTES,
27 Henry VIII, c. 10 (Uses), 231
32 Henry VIII, c. 9 (Pretended Titles), 430
18 Elizabeth, c. 5 (Fraudulent Conveyances), 183
27 Elizabeth, c. 4 (Fraudulent Conveyances), 193, 254
21 Jac. I, c. 16 (Limitations), 461, 462
29 Car. II, c. 3 (Frauds), 179, 228, 444-9
9 Geo. IT, c. 36 (Mortmain), 496
1 Wm. IV, c. 40 (Residue), 294
c. 60 (Trustees), 401
cc. 60, 65 (Infants), 818
1 and 2 Wm. IV, ec. 58 (Interpleader), 739
3 and 4 Wm. IV, c. 27, ss. 24, 28 (Statute of Limitations), 278,
539, 551 ,
3 and 4 Wm. IV, c. 104 (Debts), 22, 494
c. 105, s. 2 (Dower), 552
7 Wm. IV, and 1 Vict. c. 26 (Devise to Heir), 683
c. 28 (Statute of Limitations), 539
1 and 2 Vict. c. 110 (Judgments), 529, 531
7 and 8 Vict. c. 76 (Receipts), 266
c. 76, s. 9 (Reconveyance of Mortgaged Estate),
590
8 and 9 Vict. c. 106 (Contingent Interests), 432
c. 106, s. 1 (Reconveyance of Mortgaged Estate),

590
c. 112 (Terms), 241
524 INDEX.

STATUTES—(continued.) :
9 and 10 Vict. c. 95, 8. 65 (Legacies), 207
10 and 11 Vict. c. 96 (Trusts), 401
12 and 13 Vict. c. 74 (Trusts), 401
13 and 14 Vict. c. 60 (Trusts), 401
c. 60 (Infants), 818
c. 60, ss. 19, 20 (Reconveyance of Mortgaged
Estate), 590
60, s. 80 (Partition), 715
61, s. 1 (Legacies), 207
55 (Trusts), 401
55 (Infants), 818
76, ss. 219, 220 (Redemption), 513, 551
86, s. 48 (Sale of Mortgaged Estate), 540
187 (Charities), page 141, n.
17 and 18 Vict.c. 90 (Usury), 40
c. 104 (Shipping), 609
c. 118 (Mortgage Debts), 481-4
c. 125, ss. 79-82 (Injunctions), 757
18 and 19 Vict. c. 124 (Charities), page 141, n.
19 and 20 Vict. c. 99, s. 5 (Sureties), 655
cv. 120- (Infants), 818
20 and 21 Vict. vc. 57 (Reversionary Interests), 881
c. 77, s. 28 (Legacies—Residues), 207, 466
c. 85, ss. 21, 25 (Separate Use), 831, 832
21 and 22 Vict.c. 27 (Damages), 668
c. 27 (Trial of Questions of Fact), 755
c. 108, s. 8 (Separate Use), 832
22 and 28 Vict. c. 35 (Trusts), 401
. 85, ss. 4-6 (Forfeiture), 676
35, s. 12 (Appointments), 77
35, s. 13 (Sales under Powers), page 44, n.
35, s. 23 (Receipts), 266
35, 8. 29 (Notice for Creditors), 383, 384
35, s. 30 (Directions to Trustees, etc.), 385
35, s. 31 (Reimbursement), 345, 369
35, s: 31 (Indemnity), 369
35, s. 32 (Investments), 351
38, s. 1 (Judgments), 648
. 38, ss. 10-12 (Investments), 351, and n.
. 88, s. 145 (Trusts), 401
126, s. 2 (Forfeiture), 676
134 (Charities), page 141 .
. 186 (Charities), page 141
145 (Powers of Mortgagees), 518, 522
145 (Investments), 351
. 145, ss. 12, 29 (Receipts), 266
. 145, ss. 17-24 (Receiver), 785

15 and 16 Vict.

PEGE a2

23 and 24 Vict.

POE RE REE SSE HESOEOSES
INDEX. 525

STATUTES— (continued.)
23 and 24 Vict. c, 145, s. 26 (Maintenance), 803
c. 145, ss. 27, 28 (Trustees), 396
c. 145, s. 30 (Powers of Executors), 382
25 and 26 Vict. c. 42 (Questions of Law and Fact), 755
c. 63, s. 3 (Mortgages of Ships), 609
28 and 29 Vict. c. 99, s. 1, 8 (Injunctions), 758
30 and 31 Vict. c. 48 (Auctions), page 482
ce. 69 (Mortgage Debts), 485
v. 132 (Investments), 351
c. 144 (Life Assurance), 432
31 Vict. c. 4 (Purchase of Reversions), 170, 171
31 and 82 Vict.c. 40 (Partition), page 478
c. 86 (Marine Insurance), 432
32 and 33 Vict. c. 110 (Charities), page 141, n.
33 and 34 Vict. c. 28 (Solicitors), 157
c. 93 (Married Women), 820, 823, 834-845,
859, 860, 867, 868
34 Vict. c. 27 (Investments), 351
36 Vict. c. 12, s. 1 (Custody of Infant), 797
36 and 37 Vict. c. 66 (Judicature), par. 20, and page 486
v. 66, s. 24 (7) (Concurrent Jurisdiction), 20
c. 66, s. 25 (Changes in certain points of Jur-
isprudence), par. 20, and page 490 et seq.
66, s. 25 (2) (Statutes of Limitation), 268
66, s. 25 (3) (Waste), 3194
66, s. 25 (4) (Merger), page 491
. 66, s. 25 (5) (Suits for possession by Mortga-
gors), page 491 :
c. 66, s. 25 (6) (Assignment of Debts and
Choses in Action), page 492
. 66, s. 25 (7) (Stipulation not of the Essence
of Contracts), page 493
66,8. 25 (8) (Injunctions and Receivers),
page 493
. 66, s. 25 (9) (Collisions at Sea), page 494
66, s. 25 (10) (Custody and Education of
Infants), page 494
v. 66, s. 25 (11) (Cases of Conflict not Enumer-
: ated), par. 20, and page 494
87 and 88 Vict. c. 50 (Married Women), 860-6
ec. 62, s. 1 (Infants), 1324
c. 78, 8.4 (Reconveyance of Mortgaged Es-
tate), 590
; c. 78, s. 7 (Priority, Tacking), 532
38 and 39 Vict. c. 77, s. 10 (Administration), 472
c. 87 (Priority, Tacking), 532

eso9

° 98

20
526 INDEX.

STATUTES—(continued.) oh
39 and 40 Vict.c. 17 (Partition), page 472
. 40 and 41 Vict. c. 34 (Extension of Locke King’s Act), 486

STOCK,
reduction of, 63

SUB-PURCHASE, 431

SURCHARGE AND FALSIFY,
liberty to, 458, 459

SURETIES,
contribution between, 633-5
rights of creditors and sureties, 164, 654-8

SURPLUS,
right of heir or next of kin or executor to, 285-299

T.

TACKING, 529-534, 603, 604

TENANT,
interpleader by, 741

TERM OF YEARS,
trusts of, 239-243

TESTATORS,
agreement to influence, 137

TESTIMONY,

bill to perpetuate, 908

bill to take testimony de bene esse, 912
TIMBER,

trust as to, 319

TIME,
where time is of the essence of. a contract, 413
stipulations as to, 414

TITHES AND MODUSES, 667

TITLE,
muniments of, 394, 395
want of, 415, 416
buying a pretended, 430
TRADE,
contracts or conditions in restraint of, 141
INDEX. 527

TRUSTS IN GENERAL,
definition of, 224
division of, 226
extent of jurisdiction over, 225

TRUSTS, EXPRESS PRIVATE,

defined, 227

mode of declaring, 228-230

by what words created, 231-3

how a devise or bequest may be verbally impressed with a
trust, 234

intended trust, though void, excludes donee from taking bene-
ficially, 235

executed and executory, 30, 236, 237

governed by the same rules as legal estates, 238

of terms for years, 239-243

created without cestui que trust's knowledge, 244

what will be enforced, 245

execution of marriage articles, 246

assignment for benefits of creditors, 247-252

revocableness of a consignment or remittance, 253

revocableness of a conveyance of equitable property, or a dec-
laration of trust in favor of a volunteer, 254, 25

effect of a direction or power to raise money out of rents for
debts, etc., or of a charge, 25%

bar of, 267

performed as to the main intent, 269

where legal and equitable estates have no separate existence,
270

for an alien, 271

TRUSTS, EXPRESS CHARITABLE. See CHARITIEs.

TRUSTS, IMPLIED,

sometimes called constructive trusts, 321

defined, 282

in a power, 283, 284

where trusts fail or the property is unexhausted, 285

on an absolute gift, with an ineffectual or partial trust, or a
void condition, 286 ;

on a conveyance without a consideration, and without a use
or trust, 287-290

on a limitation of a particular interest only, 291-3

of undisposed of residue of testator’s personalty, 294

of undisposed of produce of real estate, 295, 296

of undisposed of part of mixed fund, 297 :

of undisposed. of part of money directed to be converted, or of
the produce, 298 . :

failure of objects for conversion, 299, 300
528 INDEX.

TRUSTS, IMPLIED—(continued.)
charges, 301-310 oie
on conveyance, assignment, or security 1n another’s name, 311
on purchase or transfer of stock or delivery of money, 312
on limitations which would create a joint tenancy at law, 315
on covenant or trust to purchase lands, 316
on covenant to settle lands, 317
of collateral securities for a debt assigned, 318
of ornamental timber, 319, 319a
of wife’s mortgaged property, 320

TRUSTS, RESULTING, 285-300, 311-314

TRUSTS, CONSTRUCTIVE,
defined, 322
in respect of repairs or improvements, 323
in favor of creditors, 324
on a covenant or agreement to convey, transfer, or pay money
or other property, 325, 326
vendor’s lien for unpaid purchase-money, 327-332
of lease, of which a renewalis obtained by a person having a
limited interest, 334, 335
on a wrongful conversion or alienation of trust property, 336-8
of mortgaged estate, 339-
of debt due from executor, 340

TRUSTEES,
who may be, 341
acceptance of office of, 342
profits by, 161, 333, 365
gifts to, 161, 365
purchase by, 162, 333, 365
devolution or delegation of trust, 343
equity never wants a trustee, 344
no remuneration allowed, 345
expenses allowed, 345
what care and diligence they are bound to use, 346-8
omission to sell, 349
investment, 350-4
omission of one trustee or executor to see that the property is
duly secured or applied, 355, 356
losses without want of customary care or diligence, 357
non-investment, 358
terminable or reversionary property, 359
time allowed for conversion, 360
investment on mortgage, 361
may not mix the trust money with their own, 362, 363
responsibility for each other’s acts and defaults, 366
INDEX. _ 829

TRUSTEES—( continued.) :
distinction between trustees and executors in regard to the
_ effect of joining in receipts, 367, 368
indemnity, 392a, 399
indemnity clause, 369
breach of trust by, 369-381
acquiescence in a breach of trust, 373
debt by breach of trust is a simple contract debt, 374
default by trustee who is a beneficiary, 375
power to bind the estate by a sale, transfer, mortgage, or
specific lien, 376-380
judgment against, 378
to support contingent remainders, 388
aid and direction to, 385, 389
safety of, 390-3
possession of muniments of title, 395
removal of, 396
appointment of, 396, 397
where trustees took the fee, 398
conveyance of legal estate to cestut que trust, 399
settlement of accounts, 400
duty of keeping accounts and rendering information, 400, 401
in bankruptcy or insolvency, 876-8, 891

U.
USURIOUS TRANSACTIONS, 40, 729

Vv.

VENDOR,
vendor’s lien, 327-332
nature of and reasons for, 327
where it originally exists, 328
continuance thereof, 329
against whom it exists, 330-2
misrepresentation gr concealment by, 112-121

VIGILANTIBUS,

non dormientibus equitas subvenit, 33

VOID AND VOIDABLE CONTRACTS AND INSTRU-

MENTS. See Fravup.
distinction between, as regards confirmation, 146

cancelling, 725-738
45
530 INDEX.

VOLUNTARY. See ConsIDERATION.

VOLUNTEER. See CONSIDERATION.
rights of, 49
when a collateral relation not a, 198
fraud of, 200
revocableness of a conveyance of equitable property, or a
declaration of trust in favor of a volunteer, 254
when voluntary deed cancelled, or enforced, 731-3

W.

WARDS. See Inrants.
WASTE,

injunctions to restrain, 319, 763-8

by a mortgagor, 559

by a mortgagee, 514

account in cases of, 666

equitable, 319, 319 a, 766-8

WEAK UNDERSTANDING,
frauds on persons of, 180

WELSH MORTGAGE, 578

WEST INDIA ESTATE,
mortgage of, 523

WIFE. See Marriep Women.

WILL,
defective execution of a will not remedied, 69
agreements to influence a testator, 137
proceedings to establish wills, 759-5
mistake or omission in, 100
fraud in regard to, 105°

THE END.