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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 249 824 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084249824 
 
LEADING CASES 
 
 MODERN EQUITY. 
 
LEADING CASES 
 
 IN 
 
 MODERN EQUITY. 
 
 BY 
 (THE LATE) 
 
 THOMAS BRETT, 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, LL.B., 
 
 LONDON UNIVERSITY, B.A., 
 
 LATE SCHOLAR AND STUDENT OF TRINITY COLLEGE, DUBLIN; EXHIBITIONER IN REAL 
 
 PROPERTY AND EQUITY ; HOLDER OF THE FIRST CERTIFICATE OF 
 
 HONOUR, MICHAELMAS, 1869 ; 
 
 JOINT AUTHOR OF CLERKE AND BRETT'S CONVEYANCING ACTS ; 
 
 AUTHOR OF BRETT'S BANKRUPTCY ACT, 1883, AND COMMENTARIES ON THE PRESENT 
 
 LAWS OF ENGLAND ; 
 AND LATE LECTURER IN EQUITY TO THE INCORPORATED LAW SOCIETY. 
 
 THIRD EDITION 
 
 BY 
 
 JOHN DAVENPOET ROGERS, 
 
 OF THE INNER TEMPLE, B A KRISTER- AT-L AW, 
 AND FORMERLY STOWELL FELLOW OF UNIVERSITY COLLEGE, OXFORD ; 
 
 JOHN MARSH DIXON, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW, 
 AND OF TRINITY HALL, CAMBRIDGE, B.A., LL.B. 
 
 LONDON: 
 WILLIAM CLOWES AND SONS, Limited, 
 
 27, FLEET STREET. 
 1896. 
 
LONDON : 
 
 PRINTED BY WILLIAM CLOWES AND SONS, LIMITED, 
 
 STAMFORD STEEET AND CHARING CROSS. 
 
PREFACE TO THE THIRD EDITION. 
 
 Owing to the death of Mr. Brett, the preparation for the 
 press of a third edition of his " Leading Cases " has fallen 
 to the present Editors. 
 
 The scheme of the work remains the same; some 
 changes have been introduced in the execution, of which 
 the following are the principal : — The cases have been 
 regrouped in order that they may form a consecutive 
 series. The table of " Leading Oases Grouped " will 
 illustrate the method adopted. 
 
 Of the sixty-nine leading cases comprised in the 
 second edition, sixty now re-appear as such. One of 
 the former leading cases (Pearson v. Pearson) has been 
 overruled by Trego v. Hunt, which has accordingly taken 
 its place. Four short leading cases on general practice, 
 viz. Scandal, Amendment, Admissions, and Service out 
 of the Jurisdiction, have been omitted as perhaps hardly 
 essential to a work exclusively concerned with Equity, and 
 two new cases, Thome v. Heard (1895) and In re Holford 
 (1894), have been substituted. Mr. Brett's second edition 
 degraded some three or four cases which had figured in 
 his first edition as leading cases, into the comparative 
 obscurity of small type, and a similar course has been 
 pursued with regard to Garter v. Wake, Hall v. Truman, 
 Hanbury & Co., and Lyell v. Kennedy (1) and (2) in this 
 
 edition. 
 
 a 3 
 
VI PREFACE TO TEE THIRD EDITION. 
 
 Of 1400 cases (roughly speaking) referred to or dis- 
 cussed in small type in the second edition, 1200 re- 
 appear, but to these another 1200 have been added. This 
 addition has been rendered necessary by the importance 
 of comparatively recent cases ; and Mr. Brett's method — 
 based as it is on the assumption that the later include 
 and expand the earlier authorities — seemed inconsistent 
 with the exclusion of these additional cases from the third 
 edition. The Editors had therefore to choose between two 
 courses — either the volume must be nearly doubled in 
 length, or the small type must be re- written so as to give 
 the various authorities quoted their proper relative pro- 
 portion. The latter course has been adopted, and the 
 Editors hope that the result has been to give a connected 
 and proportionate review of the leading doctrines of 
 modern equity up to the date of the present issue. 
 
 The final index has been much amplified. 
 
 JOHN DAVENPORT ROGERS. 
 JOHN MARSH DIXON. 
 
 Lincoln's Inn, 
 
 June UK, 1896. 
 
EXTEACT FROM PREFACE TO FIRST 
 EDITION. 
 
 The object which I have had in view in writing this 
 book is to illustrate, by means of leading cases, the 
 doctrines of " modern Equity." That great judge, Sir 
 George Jessel, in his celebrated judgment in In re 
 Eallett's Estate, Knatchbull v. Hallett (13 Ch. D. 696, 
 710), . . . pointed out that the moment the fiduciary 
 relation was established between the parties, that moment 
 the " modern doctrines of equity " applied. " I intention- 
 ally," the judgment proceeds, " say modern rules, because 
 it must not be forgotten that the rules of Equity are not, 
 like the rules of the Common Law, supposed to have been 
 established from time immemorial. 'No doubt they were 
 invented for the purpose of securing the better adminis- 
 tration of justice, but still they were invented. Take 
 such things as these — the separate use of a married 
 woman, the restraint on alienation. We can name the 
 Chancellors who first invented them, and state the date 
 when they were first introduced into Equity jurispru- 
 dence, and therefore in cases of this kind the older 
 precedents in Equity are of very little value. The 
 doctrines are progressive, refined, altered and improved ; 
 and if we want to know what the rules of Equity are, we 
 must look, of course, rather to the more modern than the 
 more ancient cases." 
 
viii EXTRACT FROM PREFACE TO FIRST EDITION. 
 
 To this it may be added, that the great changes which 
 have been introduced by recent statutes and orders into 
 the principles and practice of Equity have still further 
 diminished the value of the " older precedents," and in 
 many cases have rendered them practically obsolete. 
 Thus, to cite only two illustrations from among several 
 which might be mentioned. Even since 1879, when the 
 late Master of the Rolls delivered his judgment Be 
 Halletfs Estate, the old principles of the law as to restraint 
 on anticipation (see p. 230 et seq. ; p. 104 in the present 
 edition) have been greatly modified by the Conveyancing 
 Act, 1881. Within the last few years the old practice as 
 to administration (see p. 320 et seq. ; p. 275 in the present 
 edition) has been revolutionized by the Orders under the 
 Judicature Act. 
 
 Reasons such as these would seem amply sufficient to 
 justify the appearance of a new volume dealing pro- 
 fessedly with "modern Equity." Thus far as to the 
 substance of the work. A word now as to its form. The 
 form of leading cases has been selected as best calculated 
 to interest the reader, and impress the modern doctrines 
 on the minds alike of students and practitioners. 
 
 I desire to express my warmest acknowledgments to 
 Mr. James Pickup and Mr. John Marsh Dixon, of 6, 
 Stone Buildings, Lincoln's Inn, for their most valuable 
 assistance throughout the whole of this book, and also to 
 Mr. William Tucker and Mr. J. W. Blagg, for friendly 
 aid rendered in respect of portions of it, and to submit 
 my work to the favourable consideration of the profession 
 to which I have the honour to belong. 
 
 THOMAS BRETT. 
 
 Lincoln's Inn, 
 
 July, 1887. 
 
EXTRACT FROM PREFACE TO SECOND 
 EDITION. 
 
 The very favourable reception which was accorded to the 
 first edition of this work was accompanied by a consider- 
 able amount of careful and thoughtful criticism upon a 
 good many points of detail in the execution of the work. 
 In preparing the present edition, I have accordingly 
 spared no pains in endeavouring, not only to improve my 
 book by making all such additions as were rendered 
 necessary or desirable, by reason of the statutes which 
 have been passed and the cases which have been decided 
 since the appearance of the first edition, but also to 
 correct the errors and shortcomings which were pointed 
 out by my friendly critics. 
 
 THOMAS BRETT. 
 
 Lincoln's Inn, 
 
 October, 1891, 
 
LIST OF LEADING CASES. 
 
 A. 
 
 PAGE 
 
 Adams v. Angell (Merger of Charges) .... 225 
 
 Adams and the Kensington Vestry, In re (Precatory Trusts) . 19 
 Agar-Ellis, In re : Agar-EUis v. Lascelles (Infanta) . . .90 
 Anglo-Italian Bank v. Davies ; Ex parte Evans, In re Watkins ; 
 
 Salt v. Cooper (Eeceiver — Equitable Execution) . . 329 
 
 Austerberry v. Corporation of Oldham (Restrictive Covenants) . 306 
 
 Aylesford (Earl of) v. Morris (Relief to " Expectant Heirs ") . 69 
 
 B. 
 
 Baker v. Sebright (Limited Owners — Equitable Waste) . . 108 
 
 Barnes v. Addy (Strangers to the Trust — Constructive Trustees) 13 
 Blake, In re : Jones v. Blake (Administration Judgments and 
 
 Orders) ... 275 
 
 c. 
 
 Campden Charities, In re (Charity — The Cy-pres Doctrine) . 44 
 
 Cooper v. Phibbs (Victims of Mistake — Mistake of Pacts) . . 84 
 
 Corsellis, In re : Lawton v. Elwes (Costs of Solicitor-Trustee) . 170 
 
 D. 
 
 Day v. Brownrigg ; Gaskin v. Balls ; North London Railway Co. 
 
 v. Great Northern Railway Co. (Injunction) .... 320 
 
 Dymond v. Croft (Judgment in Mortgage Actions) . . . 195 
 
 E. 
 
 Ewing v. Orr Ewing (Equity acts in personam) . . . 1 
 
Xll LIST OF LEADING OASES. 
 
 F. 
 
 PAGE 
 
 Fowkesw. Pasooe (Resulting Trust and Presumption of Advance- 
 ment) 5 
 
 Freeman v. Pope (Trusts in Fraud of Creditors or Voluntary- 
 Settlements) 54 
 
 G. 
 
 Gisborne v. Gisborne (Discretionary Trusts) .... 136 
 Greer v. Young (Charge in favour of Solicitor) 174 
 
 H. 
 
 Hallett's Estate, In re : Knatchbull v. Hallett (Following Trust 
 Fund) . . 179 
 
 Hargreaves & Thompson's Contract, In re {The Vendor and Pur- 
 chaser Act, 1874, 37 & 38 Vict. c. 78) . . 281 
 
 Henty v. Wrey (Fraud on a Power) . . . 155 
 
 Holford, Lire: Holford v. Holford (Maintenance and Accumula- 
 tion) 271 
 
 J. 
 
 Jennings v. Jordan (Consolidation of Mortgages) . . 21(i 
 
 Johns v. James (Trusts for Creditors) . . .59 
 
 Jones, In re (Limited Owners — The Settled Land Acts) . . 114 
 
 L. 
 
 Leslie, In re : Leslie v. French (Life Insurance) . . . 249' 
 
 M. 
 
 Macdonald v. Irvine (Conversion of wasting Securities) . . 132 
 
 McPherson v. Watt (Relief to Client against Solicitor) . 74 
 
 Mead, In re ; Austin v. Mead (Donatio mortis causS) . . 31 
 
 Minors v. Battison (Suspension of Trustees' Powers) . . . 141 
 
 N. 
 
 National Provincial Bank of England v. Games (Mortgagee's 
 Costs) 191 
 
 Newbiggin-by-the-Sea Gas Company v. Armstrong ; Nurse v. 
 Durnford (Practice under the Judicature Acts) . . . 334 
 
 Newmarch, In re : Newmarch v. Storr (Locke King's Acts) . 229 
 
 Northern Counties of England Fire Insurance Co. v. Whipp 
 (Mortgage — Priorities) 210 
 
LIST OF LEADING OASES. xiii 
 
 0. 
 
 Odell, Ex parte : In re Walden (Mortgage of Personalty) . . 219 
 
 P. 
 
 Patman v. Harland (Notice) 311 
 
 Pemberton v. Barnes (Partition or Sale — The Court's Discretion) 122 
 
 E. 
 
 Eeid v. Reid (The Married Women's Property Act, 1882) . 
 Richards v. Delbridge (Gift or Declaration of Trust) . 
 Rogers v. Ingham (Victims of Mistake — Mistake of Law) . 
 Rossiter v . Miller (Specific Performance) .... 
 Rownson, In re : Field v. White (Right of Retainer by Executor 
 or Administrator) 
 
 on 
 
 22 
 
 80 
 
 285 
 
 1G3 
 
 S. 
 
 Sackville-West v. Viscount Holmesdale (Executory Trusts) . 34 
 
 Smith u. Anderson .(Investment Trust) 39 
 
 Speight v. Gaunt (Power of Trustees to appoint Agents, etc.) . 145 
 
 Steed v. Preece (Conversion) 127 
 
 Steel v. Dixon (Contribution among Sureties) .... 244 
 
 Stott v. Milne (Trustees' Costs) 160 
 
 Sutton v. Sutton (Beat Property Limitation Act, 1874 — Mortgage 
 
 Debts) 205 
 
 T. 
 
 Thome v. Heard (Trustees' Statutes of Limitation) . 
 Tilley v. Thomas (Time the Essence of the Contract) 
 Trego v. Hunt (Sale of Goodwill) .... 
 Trott v. Buchanan (Order in Administration) 
 Tussaud v. Tussaud (Satisfaction) .... 
 
 187 
 317 
 300 
 235 
 265 
 
 u. 
 
 Union Bank of London o. Ingram (Mortgage— Sale by the 
 Court) 202 
 
 Y. 
 
 Vardon's Trusts, In re (Election) 256 
 
 h 
 
XIV LIST OF LEADING OASES. 
 
 w. 
 
 PAGE 
 
 Wallis v. Smith (Relief to Debtors, or Penalties and Forfeitures) 63 
 Walsh v. Lonsdale (Agreement for a Lease) . . . . . 297 
 Warren's Settlement, In re (Removal of Restraint on Anticipa- 
 tion) 104 
 
 Webb v. Smith (Marshalling) 239 
 
 Williams v. Williams (Family Arrangements) .... '293 
 Wright v. Horton (Directors and Constructive Trustees, or 
 
 Charges of Companies) 11 
 
TABLE OF LEADING CASES GKOUPED. 
 
 Equity Acts in Personam (Ewing v. Orr Ewing) ... 1 
 
 Creation of Trusts. 
 
 Besulting Trust and Presumption of Advancement (Fowkes v. 
 
 Pascoe) 5 
 
 Directors and Constructive Trustees or Charges of Companies 
 
 (Wright v. Horton) 11 
 
 Strangers to the Trust — Constructive Trustees (Barnes v. Addy) 13 
 
 Precatory Trusts (In re Adams and the Kensington Vestry) . 19 
 
 Gift or Declaration of Trust (Richards v. Delbridge) ... 22 
 
 Donatio Mortis Causa, (In re Mead, Austin v. Mead) ... 31 
 
 Executory Trusts (Sackville West v. Viscount Holmesdale) . 31 
 
 Special Kinds of Trusts. 
 
 Investment Trust (Smith v. Anderson) 39 
 
 Charity — The Cy-Pres Doctrine (In re Campden Charities) . 44 
 Trusts in Fraud of Creditors or Voluntary Settlements (Freeman 
 
 v. Pope) 54 
 
 Trusts for Creditors (Johns v. James) 59 
 
 Special Objects of Equity. , 
 
 Eelief to Debtors, or Penalties and Forfeitures (Wallis v. Smith) 63 
 
 Belief to " Expectant Heirs " (Earl of Aylesford v. Morris) . 69 
 
 Eelief to Client against Solicitor (McPherson v. Watt) . . 74 
 
 Victims of Mistake — Mistake of Law (Rogers v. Ingham) . . 80 
 
 Victims of Mistake — Mistake of Facts (Cooper v. Phibbs) . . 84 
 
 Infants (In re Agar Ellis, Agar Ellis v. Lascelles) ... 90 
 
 Married Women (Eeid v. Reid) 96 
 
 Removal of Eestraint on Anticipation (In re Warren's Settle- 
 ment) 104 
 
PAGE 
 
 XVI TABLE OF LEADING CASES GROUPED. 
 
 Limited Owners. 
 
 Equitable Waste (Baker v. Sebright) 108 
 
 The Settled Land Acts (In re Jones) 114 
 
 Partition or Sale (Pemberton v. Barnes) 121 
 
 Duties and Powers of Trustees, etc. 
 
 Conversion (Steed v. Preece) 127 
 
 Conversion of Wasting Securities (Macdonald v. Irvine) . . 132 
 
 Discretionary Trusts (Gisborne v. Gisborne) .... 136 
 
 Suspension of Trustees' Powers (Minors v. Battison) . . . 141 
 
 Power of Trustees to Appoint Agents, etc. (Speight v. Gaunt) . 145 
 
 Fraud on a Power (Henty v. Wray) 155 
 
 Remedies of Trustees, etc. 
 
 Trustees' Costs (Stott v. Milne) 160 
 
 Eight of Retainer by Executor or Administrator (In re Rownson, 
 
 Rownson v. Field) 165 
 
 Costs of Solicitor-Trustee (In re Corsellis, Lawton v. Elwes) . 170 
 
 Charge in favour of Solicitor (Greer v. Young) .... 174 
 Following Trust Funds (In re Hallett's Estate, Knatchbull v. 
 
 Hallett) 179 
 
 Trustees' Statutes of Limitation (Thorne v. Heard) . . . 187 
 
 Remedies of Mortgages. 
 
 Mortgagee's Costs (National Provincial Bank of England v. 
 
 James) 191 
 
 Judgment in Mortgage Actions (Dymond v. Croft) . . . 195 
 
 Mortgage — Sale by the Court (Union Bank of England v. Ingram) 202 
 
 Real Property Limitation Act, 1874 (Sutton v. Sutton) . . 205 
 
 Mortgage Priorities (Northern Counties Insurance Co. v. Whipp) 210 
 
 Consolidation of Mortgages (Jennings v. Jordan) . . . 216 
 
 Mortgage of Personalty (Ex parte Odell, In re Walden) . . 219 
 
 Merger of Charges (Adams v. Angell) 225 
 
 Assets in Administration. 
 
 Locke King's Acts (In re Newmarch, Newmarch v. Storr) . 229 
 
 Order in Administration (Trott v. Buchanan) .... 235 
 
 Marshalling (Webb v. Smith) 239 
 
 Contribution among Sureties (Steel v. Dixon) .... 244 
 
 Life Insurance (In re Leslie, Leslie v. French) .... 249 
 
 Election (In re Vardon's Trusts) 256 
 
 Satisfaction (Tussaud v. Tussaud) 264 
 
 Maintenance and Accumulation (In re Holford, Holford v. 
 
 Holford) 271 
 
 Administration Judgments and Orders (In re Blake, Jones v. 
 
 Blake) 275 
 
TABLE OF LEADING OASES GROUPED. xvii 
 Vendor and Purchaser. 
 
 PAGE 
 
 The Vendor and Purchaser Act, 1874 {In re Hargreaves and 
 
 Thompson's Contract) 
 Specific Performance (Rossiter v. Miller) . 
 Family Arrangements (Williams v. Williams) . 
 Agreement for a Lease (Walsh v. Lonsdale) 
 Sale of Goodwill (Trego v. Hunt) 
 Restrictive Covenants (Austerberry v. Corporation of Oldham) 
 
 Notice (Patman v. Harland) 
 
 Time the Essence of the Contract (Tilley v. Thomas) 
 
 Procedure. 
 
 Injunction (Day v. Brownrigg ; Gaskin v. Balls ; North London 
 
 Railway Co. v. Great Northern Railway Co.) . . . 320 
 
 Receiver — Equitable Execution (Anglo-Italian Bank v. Davies ; 
 
 Ex parte Evans, In re Watkins ; Salt v. Cooper) . . 329 
 
 Practice under the Judicature Acts (Newbiggin-by-the Sea Gas 
 
 Nurse v. Durnford) .... 334 
 
TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 158 
 325 
 
 Abbott, In re 
 Abernethy v. Hutchinson 
 Accidental Death. Insurance 
 
 Co., In re . . .242 
 Ackroyd v. Smithson . 128 
 
 Acton v. Woodgate . . 59 
 Adam's Policy Trusts . 102 
 
 Adames v. Hallett . . 56 
 Adams and the Kensington 
 
 Vestry, In re . . . 19 
 
 v. Angell 225 et seq. 
 
 Adams' Trusts, In re . . 28 
 Agar-EUis, In re . 90 et seq. 
 , In re : Agar-Ellis 
 
 v. Lascelles . . 90 et seq. 
 Agra Bank v. Barry . 211, 212 
 Ailesbury (Marquis of), In re 29 
 and 
 
 Lord Iveagh . . . 116 
 Ainslie, In re : Swinburne 
 
 v. Ainslie . . . Ill 
 Ainsworth v. Wilding . 89 
 Akerman, In re . . . 169 
 Akeroyd's Settlement, In re 259 
 Alderson v. Elgey . . 201 
 Aldrich v. Cooper . . 240 
 Alexander v. Alexander 157, 159 
 Aleyn v. Belchier . .156 
 Allcard v. Skinner . 78, 79 
 
 v. Walker . . 86 
 
 Allen v. Seckham . . 314 
 Allgood v. Merrybent and 
 Darlington Bailway Co. . 328 
 
 Allhusen v. Brooking 
 Allsopp v. Wheatcroft 
 Alston, Ex parte 
 Ames, In re : Ames and 
 
 Taylor . 117, 119, 172, 
 Amis v. Witt 
 
 Amos, In re : Carrier v. Price 
 Ancell v. Rolfe . 
 Anderson v. Abbott . 
 
 v. Bank of British 
 
 Columbia 
 Anderton and Milner's Con- 
 tract .... 
 Andrew v. Aitken 
 Andrews v. Barnes 
 
 v. City Permanent 
 
 Benefit Building Society 
 
 v. Salt 
 
 Anglo-Italian Bank v. 
 
 Davis . . .329 et 
 Ann, In re : Wilson v. Ann 
 Anon .... 
 
 Anthony, In re (1) . 
 
 , In re (2) . 
 
 Antrobus v. Davidson 
 Arab, The . 
 Arabin's Trusts, In re 
 Arbib and Class' Contract, 
 
 In re . . 10, 
 
 Arcedekne, In re : Atkins 
 
 v. Arcedekne . 
 Ardesoife v. Bennet . 
 Arglasse v. Muscamp . 
 Argus Life Assurance Co., 
 In re 
 
 PAGE 
 
 299 
 304 
 241 
 
 173 
 
 34 
 
 51 
 
 126 
 
 260 
 
 338 
 
 300 
 308 
 
 337 
 
 217 
 
 94 
 
 seq. 
 
 98 
 
 87 
 
 233 
 
 232 
 
 247 
 
 242 
 
 99 
 
 283 
 
 245 
 
 258 
 
 4 
 
 254 
 
XX 
 
 TABLE OF CASES. 
 
 Armstrong (G.) & Sons, 
 
 In re . . . 336 
 
 Arnold, In re : Kavenscroft 
 v. Workman . . . 243 
 
 v. Dixon . . 128 
 
 ■ ■ v. Woodhams . 106 
 
 Ashton v. Dawson . . 34 
 Ashworth v. Lord . . 194 
 
 v. Munn . . 243 
 
 Aslatt v. Corporation of 
 
 Southampton . . 328 
 
 Astley v, Weldon . . 65 
 Atherley v. Burnett . . 212 
 Athili, In're . . .233 
 Atkinson, In re : Atkinson 
 v. Bruce . . .117 
 
 v. Littlewood . 270 
 
 Attorney-General v. Marquis 
 of Ailesbury . . 129, 130 
 
 v. Biphos- 
 
 phate Guano Co. . . 314 
 
 v. Bunoe . 50 
 
 ■ v. Gover- 
 nors of Christ's Hospital 45 
 
 v. Clerken- 
 
 well Vestry . . .328 
 
 v. Flint . 315 
 
 ■ v. Hankey 49 
 
 v. Hub- 
 buck . . . 128,129 
 
 ■ v. Jones . 116 
 
 v. Lander- 
 
 field .... 28 
 • v. Man- 
 chester Corporation . 328 
 
 v. Duke of 
 
 Northumberland . . 51 
 
 v-St-John's 
 
 Hospital, Bedford . . 52 
 
 • — v. The 
 
 Wardens, etc., of the Wax 
 Chandlers' Co. . . 50 
 Austerberry v. Corporation 
 
 of Oldham . 306 et seq. 
 
 Austin v. Tawney . . 318 
 Avory v. Andrews . . 323 
 Axfocd v. Eeid . . .106 
 
 Aylesford (Earl of) v. Morris 
 
 69 et seq., 296 
 v. Poulett 
 
 (Earl) . . • - 186 
 Aylesford's (Earl of) Settled 
 
 Estates, In re . . . H9 1 
 Aylward v. Lewis . . 199 
 Aylwiu v. Witty . 249, 250 
 Ayres, In re . . .98 
 
 B. 
 
 61 
 
 25 
 
 Baber's Trusts, In re 
 Baddeley v. Baddeley 
 Badische Anilin, etc., Pabrik 
 
 v. Schott . . .304 
 Baggs, In re . . . 117 
 Bagot v. Bagot . . . 110 
 Bagot's Settlement, In re 
 
 116, 119, 278 
 Bagshaw, Ex parte : In re 
 
 Shaw . . . . 89 
 
 v. Spencer . . 36 
 
 Baile v. Baile . . 175, 176 
 Bailey, In re . . . 237 
 v. Barnes 215, 313, 314 
 
 
 
 315 
 
 Baines v. Geary . 
 
 
 305 
 
 Baird v. Wells . 
 
 . 
 
 314 
 
 Baird's Case 
 
 
 41 
 
 Baker v. Bradley 
 
 78 
 
 296 
 
 v. Gray 
 
 . 
 
 218 
 
 v. Hedgecock 
 
 . 
 
 305 
 
 v. Monk . 
 
 . 
 
 72 
 
 v. Sebright 108 et 
 
 seq. 
 
 328 
 
 Bale v. Coleman 
 
 . 
 
 38 
 
 Ball v. Kemp- Welch . 
 
 . 
 
 127 
 
 Ballance, In re . 
 
 
 36 
 
 Barber, In re : Burgess 
 
 v. 
 
 
 Vinnioombe 77, 171, 
 
 173 
 
 ,279 
 
 
 247 
 
 v. 
 
 ,278 
 
 Baring, In re : Jeune 
 
 Baring . 
 
 . 
 
 113 
 
 Barker, In re : Buxton v. 
 
 Campbell . . 191, 209 
 Barker's Trusts, In re . 28 
 
TABLE OF OASES. 
 
 XXI 
 
 Barnard, In re : Edwards v. 
 
 Barnard 
 v. Hunter 
 
 Barnardo v. Pord 
 v. McHugh . 
 
 . 277 
 . 76 
 . 95 
 92,95 
 
 Barnes v. Addy . . 13 
 
 Barnett v. Weston . . 212 
 Barney, In re : Barney v. 
 
 Barney .... 16 
 Barny v. Beak ... 70 
 Barr v. Harding . . . 198 
 Barrel], Ex parte: In re 
 
 Parnell .... 66 
 Barrett, In re . . . 167 
 
 v. Hartley . . 78 
 
 Barrington, In re: Garalen 
 
 v. Lyon . . . .110 
 Barrow v. Barrow . . 261 
 Bartlett v. West Metro- 
 politan Tramways Co. . 331 
 
 v. Wood . . 276 
 
 Barton v. Oapewell Conti- 
 nental Patents Co. . . 66 
 Barwick v. English Joint 
 
 Stock Bank . . .190 
 Basham, In re : Hannay v. 
 
 Basham . . . 280 
 
 Bastard v. Proby . . 37 
 Bate, In re : Bate v. Bate . 237 
 Bateman v. Davis . . 150 
 Bates v. Kesterton . 107, 117 
 Batho v. Tunks . . 306 
 
 Batstone v. Salter . . 10 
 Batthyany v. Walford 113, 279 
 Bawden, In re . . . 237 
 Bayspoole v. Collins . . 28 
 Beacon v. Cosby . . 263 
 Beak v. Beak ... 32 
 Beasley v. Eoney . . 99 
 Beauchamp (Earl) v. Winn 81, 85 
 Beaumont v. Oliveira . . 243 
 Beck v. Pierce . . 100, 102 
 Beckett v. Sutton . . 126 
 
 v. Tower Assets Co. 222 
 
 Beckford v. Beckford . . 7 
 Beddoe, In re: Downes v. 
 Cottam . . . 162,194 
 
 Beddow v. Beddow 321, 322, 324 
 Bedford (Duke of) v. Trus- 
 tees of British Museum . 310 
 Bedingfield and Herring's 
 
 Contract, In re . 117, 283 
 Beeman, In re . . . 169 
 Beere v. Hoffmister . . 158 
 Beevor v. Luck . . 216, 217 
 Belaney v. Belaney . . 229 
 Belcher v. Williams . 
 Belchier, Ex parte 
 Bell, In re : Jeffery v. Sayles 
 
 , In re : Ex parte Norton 
 
 Bellamy, In re . 
 
 v. Debenham 
 
 Bellasis v. Uthwatt . 
 
 127 
 
 146 
 
 223 
 
 18 
 
 150 
 
 . 288 
 
 . 268 
 
 . 274 
 
 162, 164 
 
 266, 268 
 
 . 7,9 
 
 Bence, In re 
 Benett v. Wyndham 
 Bengough v. Walker 
 Bennet v. Bennet 
 Bennett v. Houldsworth . 267 
 Bentinck v. Penn . . 78 
 Benyon v. Pitch . . 70 
 
 Berkeley, In re . . .29 
 Berridge v. Berridge . . 245 
 Besant, In re . . .94 
 Besley v. Besley . . 87 
 
 Best v. Applegate . . 200 
 Bethell v. Abraham (L. B. 
 
 17 Eq. 24) . . .141 
 v . (3 Ch. 
 
 D. 590, n.) . . .267 
 Bethlehem and Bridewell 
 
 Hospitals, In re . . 120 
 Betjemann v. Betjemann . 190 
 Bettyes v . Maynard . . 88 
 Beynon v. Cook . 72, 73 
 
 Biddulph v. Billiter, etc., 
 
 Co 200 
 
 Biggs v. Peacock . . 124 
 Bingham v. Bingham . . 82 
 Binns v. Nichols . . 241 
 Birchall, In re : Wilson v. 
 
 Birchall . . . .296 
 
 v. Pugin . . 176 
 
 . Ill 
 
 Birch- Wolfe v. Birch 
 
 Bird v. Wenn 
 
 164, 193, 218 
 
xxu 
 
 TABLE OF CASES. 
 
 District 
 
 Birmingham, etc., Co. and 
 Allday, In re . 300, 309 
 
 Birt, In re : Birt v. Burt 
 
 v. Burt 
 
 Biscoe v. Jackson 
 
 Bisset v. Jones . 
 
 Black, In re 
 
 Blackburn and 
 
 Benefit Building Society 
 v. Ounliffe Brooks & Co. . 
 
 Blackburn v. Stables . 
 
 Blackmail v. Fysh 
 
 Blackwood v. London Char- 
 tered Bank of Australia . 
 
 Blaiklock v. Grindle . 
 
 Blair v. Bromley . 189, 190 
 
 Blake, In re : Jones v. 
 Blake . . . 275 et seq. 
 
 168 
 
 182 
 
 49 
 
 199 
 
 2 
 
 83 
 
 38 
 
 274 
 
 214 
 263 
 
 v. Harvey 
 
 199 
 
 331 
 90 
 
 17 
 260 
 
 234 
 122 
 317 
 193 
 
 Blaker v. Herts Waterworks 
 Co 
 
 Bloomer v. Spittle 
 Blundell, In re : Blundell v. 
 
 Blundell. 
 Blunt v. Lack . 
 Blyth v. Fladgate 17, 18, 149 
 Boards, In re: Knight v. 
 
 Knight . 
 Bodicoate v. Steers 
 Boehm v. Wood 
 Bolingbroke v. Hinde . 
 Bolton v. Buckenham 219, 248 
 
 v. Curre . 18, 106, 152 
 
 u. London School 
 
 Board .... 323 
 
 ■ v. Salmon 199, 219, 248 
 
 Bolton Partners v. Lambert 289 
 Bone v. Pollard . . 10 
 
 Bonhote v. Henderson . 27 
 Bonnard v. Perryman . 325 
 
 Bonnewell v. Jenkins . 287 
 
 Bonsor v. Bradshaw . . 176 
 Booth and Kettlewell's Con- 
 tract, In re . 199 
 Borthwick v. Eansford . 277 
 Borwick v. English Joint 
 Stock Bank ., . . 190 
 
 
 PAGE 
 
 Bosworth, In re . 
 
 275 
 
 Bottle v. Knocker 
 
 24 
 
 Bourne, In re : Martin v. 
 
 
 Martin .... 
 
 238 
 
 Boursot v. Savage 
 
 315 
 
 Bouts v. Ellis . 
 
 32 
 
 Bowden, In re : Andrew v. 
 
 
 Cooper .... 
 
 191 
 
 Bo wen, In re : James v. 
 
 
 James .... 
 
 98 
 
 , In re : Lloyd Phillips 
 
 
 v. Davies 
 v. Hall 
 
 . 48 
 . 324 
 
 Bowes v. Law . . . 310 
 Bowling and Welby's Con- 
 tract, In re . . .43 
 Bown, In re : O'Halloran v. 
 
 King . . . .106 
 Boyd v. Allen . . .125 
 
 v. Boyd . . .266 
 
 Boyse, In re . . . 279 
 Bradford, Mayor, etc., of, v. 
 
 Pickles . . . .325 
 Brail, In re . . 56,57,58 
 Bremner, Ex parte . . 177 
 Breton, In re : Breton v. 
 
 Woollven ... 26 
 Brewer v. Square . . 203 
 Briant, In re . . . 278 
 Bridger, In re: Brompton 
 
 Hospital v. Lewis . 54, 243 
 Brier, In re 
 
 Briggs and Spicer, In re 
 v. Jones . 
 
 148 
 
 58 
 
 213 
 
 313 
 
 17 
 
 175, 176 
 
 Bright's Trusts, In re 
 Brinsden v. Williams 
 Briscoe v. Briscoe 
 Bristol, Cardiff and Swansea 
 
 Aerated Bread Co. v. 
 
 Maggs . . 289, 302, 303 
 Bristol's (Marquis of) Settled 
 
 Estates, In re . . . 120 
 Bristowe v. Ward . . 259 
 Britain v. Bossiter . 290, 291 
 British Mutual Banking 
 
 Co. v. Cham wood Forest 
 
 Eailway Co. . . . 190 
 
TABLE OF OASES. 
 
 XXU1 
 
 British Seamless, etc., Co., 
 In re . . .79 
 
 British South Africa Co. 
 v. Compaohia de Mopam- 
 bique .... 3 
 
 Briton Medical and General 
 Life Assurance Associ- 
 ation, In re . . . 324 
 
 Brocklesby v. Temperance 
 Building Society . 212, 213 
 
 Bromley v. Smith . 70, 74 
 
 Brooke, In re . . . 163 
 
 — v. Garrod 
 
 ■ v. Haymer 
 
 Brooking v. Skewis . 
 
 Brooksbank, In re : Beau- 
 clerk v. James 
 
 Brophy v. Bellamy 
 
 Broughton v. Hutt 
 
 Brown, In re: Brown v. 
 
 Brown 
 , In 
 
 Brown 
 , In 
 
 Plitt 
 
 re : Dixon 
 
 re : Ex parte 
 
 318 
 
 88 
 
 198 
 
 263 
 
 138 
 
 82 
 
 139 
 
 83 
 
 . 182 
 
 — Ethel, In re . . 94 
 
 - — — v. Brown . . . 260 
 
 v. Burdett .' . 280 
 
 v.' Collins. . . 96 
 
 v. Gellatly . 133, 135 
 
 v.. Eye . . .195 
 
 v. Sewell . . .338 
 
 v. Smith . . .163 
 
 v. Trotman . . 177 
 
 Brown's Estate, In re . . 209 
 
 Trusts, In re . . 157 
 
 Browne v. Cavendish . . 61 
 Brownson v. Lawrance . 233 
 Bruce v. Marquis of Ailes- 
 biiry . . 115,119,120 
 
 v. Bruce . . . 158 
 
 v. Garden . . 252 
 
 Brunton v. Electrical Engi- 
 neering Co. . . . 178 
 Bryant, In re . . . 323 
 
 • In re : Bryant v. 
 
 Hickle . . . 138,140 
 
 Bryant and Barningh'am's 
 
 Contract, In re . . 282 
 Bubb v. Padwick . . 141 
 Budden v. Wilkinson . . 340 
 Budge v. Gummow . . 149 
 Budgett v. Budgett . 163, 164 
 Bulley v. Bulley . 175, 176 
 Bullock v. Bullock . . 147 
 Bulmer v. Hunter . . 58 
 Bulteel v. Plummer . . 159 
 Burge v. Brutton . . 172 
 Burgess v. Eve . . . 247 
 Burkinshaw v. Nieolls . 313 
 Burnaby v. Equitable Re- 
 versionary, etc., Society . 261 
 Burnham National Schools, 
 
 In re . . . .53 
 Burrage, In re : Burning- 
 ham v. Burrage . . 140 
 Burroughs, Lynn and Sexton, 
 
 In re . . . . 282 
 Burrows, In re . . . 274 
 Burstall v. Beyfus . . 17 
 Burt v. Bull . . .332 
 Burton's Will, In re . . 273 
 Busfleld, In re . .5,279,283 
 Busk v. Adlam . . . 157 
 Butler, In re: Le Bas v. 
 Herbert . . . .237 
 
 v. Butler ... 99 
 
 Butler's Trusts, In re . . 99 
 Byng's Settled Estate, In re 116 
 
 C. 
 
 C.'s Settlement, In re 
 Caballero «. Henty 
 Cabburn, In re . 
 Cadogan v. Kennett 
 Cahill v. Cahill . 
 Caird v. Moss 
 
 v. Sime 
 
 Callaghan, In re 
 Callislier v. Bischoffsheim 
 Calmady v. Calmady . 
 Cambefort v. Chapman 
 Cameron v. Wells 
 
 . 108 
 
 312, 314 
 
 164, 276 
 
 55 
 
 263 
 
 88 
 
 325 
 
 95 
 
 295 
 
 122 
 
 247 
 
 98 
 
XXIV 
 
 TABLE OF CASES. 
 
 Campbell, Ex parte : In re 
 
 Oath cart . . .167 
 ■ , Ex parte, Camp- 
 bell v. Campbell . . 167 
 , In re : Campbell 
 
 v. Campbell . . .234 
 
 v. Campbell 266, 267 
 
 v. Lloyd's Bank . 332 
 
 v. Walker . . 77 
 
 v. Wardlaw 77, 112 
 
 Campbell's Trusts, In re . 28 
 Campden Charities, In re 
 
 44 et seq. 
 Canadian Oil Works Corp., 
 
 In re . . .79 
 
 Cane v. Allen . . 76, 77 
 Caplen's Estate, In re : Bul- 
 
 beok v. Silvester . . 25 
 Capon's Trusts, In re . . 159 
 Cardigan v. Curzon-Howe 115, 117 
 Cardross' Settlement, In re 160 
 Carr v. Atkinson . . 158 
 Carriage Co-op. Supply Ass., 
 
 In re . . . . 79 
 Carritt v. Keal and Personal 
 
 Advance Company . . 213 
 Carroll's Policy, In re . 253 
 
 Carter, In re . . . 134 
 
 v. Carter . . .324 
 
 v. Dean of Ely . . 318 
 
 v. Fey . . . 322 
 
 v. Silber; Carter v. 
 
 Hasluck . . 256,260 
 
 v. Wake . . .201 
 
 v. Williams . . 313 
 
 Carteret v. Petty . . 4 
 Cartwright, In re : Avis v. 
 
 Newman . . . 113 
 Cassidy v. Belfast Banking 
 
 Company ... 34 
 Castle Betham (Vicar of), 
 
 Ex parte . . . 116 
 Caswell v. Sheen . . 126 
 Catling v. King . . .286 
 Catlow v. Catlow . 175, 177 
 Caton v. Caton . 289, 291, 292 
 Catton v. Banks . . . 126 
 
 PAGE 
 
 Catton v. Bennett . . 66 
 Cave v. Cave . . 180, 315 
 Chaffers v. Goldsmid . . 325 
 Challender v. Boyle . . 327 
 Chamberlayne v. Brockett . 48 
 Chambers v. Kingham . 229 
 Champion, In re : Dudley 
 ■o. Champion . 18, 80, 180 
 
 v. Bigby . . 79 
 
 Chancellor, In re: Chan- 
 cellor v. Brown . . 134 
 Chancey's Case . . . 265 
 Chandler v. Pocock . . 131 
 Chapman, In re : Cocks v. 
 
 Chapman . . . 154 
 
 , In re : Freeman 
 
 v. Parker . . . 164 
 Chappie, In re : Newton v. 
 
 Chapman . . 172, 173 
 Charles v. Jones . 188, 194 
 
 Charlesworth v. Mills 220, 223 
 Charlewood v. Hammer . 200 
 Charlton v. Charlton . . 176 
 Chattock v. Muller . . 291 
 Cheesman, In re . . . 173 
 Chennell, In re . . . 164 
 Chesham (Lord), In re : 
 
 Cavendish v. Dacre . 257, 259 
 Chester v. Chadwick . . 158 
 Chesterfield (Earl of) v. 
 
 Janssen . . 70, 71 
 
 Chesterfield's (Earl of) 
 
 Trusts, In re . . . 135 
 Chestou v. Wells . 198, 333 
 Chesworth v. Hunt . . 218 
 Chichester (Lord) v. Coven- 
 try . . . 265,266,267 
 Chillingworth v. Chambers . 152 
 Chilton v. Progress Printing 
 
 Co '. 327 
 
 Christchurch Inclosure Act, 
 
 In re . . . . 52 
 Christy v. Van Tromp . 204 
 Churchill (Lord) In re : 
 Manisty v. Churchill . 246 
 
 v. Churchill . 158 
 
 Churton v. Douglas 289, 301, 303 
 
TABLE OF CASES. 
 
 XXV 
 
 City of London Brewery 
 
 Co. v. Tennant . . 326 
 Clack v. Carlon . . . 172 
 
 v. Holland . • 250 
 
 Claggett, In re : Fordham v. 
 
 Claggett . . .331 
 Clark v. Sevvell . . .269 
 Clarke, In re . .94 
 
 v. Birley . . 248 
 
 v. Palmer . . 212 
 
 v. Eamuz . . 300 
 
 v. Swaile . . 77 
 
 Claxton, Ex parte . . 186 
 Clay and Tetley : In re . 283 
 Clayton v. Leech, . . 87 
 Clayton's Case . . . 181 
 Cleaver v. Mutual, etc., As- 
 surance Association . 255 
 Clegg v. Hands . . .310 
 Clement v. Cheeseman . 32 
 Clements, In re . . . 273 
 Clephane v. Lord Provost of 
 
 Edinburgh ... 47 
 Clergy Orphan Corporation, 
 In re (L. R. 18 Eq. 280) 154 
 
 In re ([1894] 3 Ch. 
 
 145) . . . 53 
 
 Clerk v. Lucy . . . 266 
 
 v. "Wright . . .290 
 
 Cleveland's (Duke of) Es- 
 tate, In re: Hay v. 
 
 Wolmer. . . .135 
 
 (Duke of) Settled 
 
 Estates, In re . .131 
 
 Clifton v. Cockburn . . 85 
 
 Clinan v. Cooke . . . 291 
 
 Clinton's Trusts, In re . 97 
 
 Clitheroe Estate, In re . 115 
 
 Clover v. Adams . 176, 177 
 Coates to Parsons, In re . 284 
 
 Coats-worth v. Johnson . 299 
 
 Coburn v. Collins . . 221 
 
 Cochrane v. Entwhistle . 220 
 
 v. Matthews . 220 
 
 ^.Willis . . 88 
 
 Cockburn v. Edwards. . 76 
 
 Cockroft, In re : Broadbent 
 
 v. Groves . . . 232 
 
 Cocks v. Manners . . 51 
 
 Codrington v. Codrington . 257, 
 
 259, 260, 261, 262, 263 
 
 v. Lindsay . 257, 259, 
 
 260 
 Coffin v. Coffin . . .109 
 Cogan v. Duffield . . 39 
 Cole v, Eley . . 176, 177 
 
 v. North Western Bank 213 
 
 v. Willard . . . 270 
 
 Colebourne v. Colebourne . 333 
 Coleman v. Jarrom . . 282 
 
 v. Llewellin 198, 333 
 
 Coleridge's (Lord) Settle- 
 ment, In re . . . 117 
 Coles v. Trecothick . 77, 294 
 Collard v. Marshall . . 326 
 Collinge's Settled Estate, 
 
 In re . . . . 117 
 Collins v. Barker . . 333 
 
 — v. Carey . . 172 
 
 v. Castle . . 309 
 
 v. Locke . . 304 
 
 v. Stimson . . 184 
 
 Collis v. Laugher . . 326 
 Colomhine v. Penhall . 58 
 
 Colonial Bank, The, v. The 
 Exchange Bank of Yar- 
 mouth, Nova Scotia . 88 
 Colyer v. Pinch . . .212 
 Comfort v. Betts . . 253 
 Commercial Bank of India, 
 
 In re . . . . 3 
 Commercial Bank of South 
 
 Australia, In re . 3 
 
 Commercial Bank of Tas- 
 mania v. Jones . . 247 
 Commissioners for Income 
 
 Tax v. Pemsel . . 51 
 Comminstt. Scott . . 286 
 Compagnie Generale, In re 
 
 la 283 
 
 Compton, In re : Norton v. 
 
 Compton . .168, 279 
 v. Bagley . . 319 
 
XXVI 
 
 TABLE OF OASES. 
 
 PAGE 
 
 Condon v. Vollum . . 94 
 Coney, In re : Coney v. 
 
 Bennett. . . .333 
 Conolan v. Leyland . . 98 
 Constable v. Constable . 118 
 Consterdine v. Consterdine . 150 
 Conway v. Fenton . 113, 278 
 Cook v. Fountain . . 7 
 Cook's Trusts, In re . . 124 
 Cooke, Ex parte : In re 
 
 Straehan . . .182 
 
 v. Briscoe . . . 263 
 
 v. Dealey . . .128 
 
 v. Smith . . 42, 62 
 
 Coombs v. Wilkes . . 287 
 Coope v. Cresswell . . 208 
 Cooper, Ex parte (10 Ch. D. 
 
 313) . . . .221 
 (W. N. 
 
 1882,96) ... 10 
 
 v. Cooper . 258, 260 
 
 v. Macdonald . . 267 
 
 v. Phibbs 81, 84 et seq., 
 
 295 
 Cope v. Earl de la Warr . 39 
 Corbet v. Corbet . . 236 
 Corbyn v. French . . 243 
 Cornisb, In re . . . 189 
 
 v. Clark. . . 57 
 
 Corsellis, In re : Lawton v. 
 
 Elwes . . . 170 et seq. 
 Coslake v. Till . . .318 
 Cotterell v. Stratton . 161, 192, 
 193 
 Cottrell v. Cottrell . . 120 
 Coulthart v. Clementson . 248 
 Courtenay v. Wright . 251, 252 
 Courtney, In re : Ex parte 
 
 Pollard .... 4 
 Courtier, In re : Coles v. 
 
 Courtier . . 113, 140 
 
 Cousins, In re . . . 316 
 Coutts v. Ackworth . . 263 
 Cowles v. Gale . . .318 
 Cowx v. Foster . . . 158 
 Cox and Neve's Contract, 
 
 In re . . . . 315 
 
 PAGB 
 
 Cox v. Bennett . 101, 163 
 
 v. Hickman . 41, 42 
 
 Cracknall v. Janson . . 218 
 Cradock v. Piper . . 171 
 Crawford v. Toogood . . 319 
 Crawshay, In re : Crawshay 
 
 v. Crawshay . . 148, 157 
 Crichton v. Crichton . . 270 
 Croft, In re : Deane v. Croft 239 
 Croggan v. Allen . . 276 
 Croghan v. Maffett . . 175 
 Croom, In re . . . 278 
 Cross v. Cross . . . 177 
 Crossley v. City of Glasgow 
 
 Life Assurance Co. . . 253 
 
 v. Elworthy . . 57 
 
 v. Maycock . . 287 
 
 Crowder v. Stewart . . 166 
 Crowe v. Price . . .333 
 Crowther, In re : Midgley v. 
 
 Crowther . . .134 
 
 v. Elgood . . 182 
 
 v. Thorley . 42, 43 
 
 Crozier v. Crozier . 158, 159 
 
 v. Dowsett . . 195 
 
 Cruse v. Paine . . . 247 
 Cruttwell v. Lye . . 301 
 Cull, In re . . . . 162 
 Culverhouse, In re : Cook 
 
 v. Culverhouse . . 239 
 Cummins v. Fletcher . 217, 218 
 Cunnaok v. Edwards . . 51 
 Cunynghame's Settlement, 
 
 In re . . . 107 
 
 Currant v. Jago ... 7 
 Currey, In re : Gibson v. 
 
 Way . . . 106, 107 
 Curteis v. Wormald . 131 
 
 Curtius v. Caledonian Fire 
 
 and Life Insurance Co. . 253 
 
 D. 
 
 Dale & Co., Ex parte . 181, 182 
 Dalison's Settled Estates, In 
 re 120 
 
TABLE OF OASES. 
 
 xxvn 
 
 Dallow v. Garrold : 
 
 parte Adams . 
 D' Alton v. D' Alton 
 Dallmeyer, In re 
 
 PAGE 
 
 Ex 
 
 175, 176 
 . 93 
 . 135 
 
 Dane v. Mortgage Insurance 
 
 Corporation . . . 248 
 D'Angibau, In re : Andrews 
 
 v. Andrews . . 93, 160 
 Daniel u. Ferguson . . 324 
 Daniel's Settled Estates, In 
 
 re 119 
 
 Daniell v. Sinclair . . 86 
 Daniels v. Davison . . 314 
 Danson, In re . . . 274 
 Darby v. Darby . . 129 
 
 Darling, In re . . .49 
 Darnley v. L. C. & D. Ely. 
 
 Co 318 
 
 Dartnall, Inre . . .276 
 Dasbwood v. Magniac 111, 112, 
 
 113 
 Davenport, In re : Turner 
 
 v. King .... 98 
 Daveron, In re : Bowen v. 
 
 Cburchill . . .129 
 Davidson, In re : Martin v. 
 
 Trimmer . . . 131 
 Davies, W., In re . . 277 
 , In re: Jenkins v. 
 
 Davies . . . .278 
 
 v. Davies (9 Eq. 468) 257 
 
 v. (36 Ch. D. 
 
 359) . . . 305, 306 
 v. London and Pro- 
 vincial Insurance Co. . 247 
 
 v. Otty ... 9 
 
 v. Sear . . .314 
 
 v. Wright . . 203 
 
 Davies' Policy Trusts, In re 102 
 Davis, In re : Evans v. 
 
 Moore . . . 191,209 
 
 and Cavey, In re 283, 284 
 
 v. Davis . .130 
 
 v. Forman . . 326 
 
 v. Corporation of 
 
 Leicester . . . 310 
 v . Morier . . 86 
 
 PAGE 
 
 297 
 
 268 
 324 
 266 
 
 Davis v. Uphill 
 
 Davys v. Boucher 
 
 Dawkins v. Aritrobus 
 
 Dawson v. Dawson . 
 
 Day v. Brownrigg 205, 320 etseq. 
 
 318 
 
 176 
 
 237 
 
 78 
 
 v. Luhke . 
 
 De Bay v. Griffin 
 
 De Burgh Lawson, In re 
 
 De Bussche v. Alt 
 
 De Caux v. Skipper ; Tee v. 
 
 De Caux . . .194 
 De Mattos v. Gibson . . 326 
 De Mestre v. West . . 28 
 De Teissier's Settled Estates, 
 
 Inre . . . 113,120 
 
 De Visme, In re . . 7 
 
 Deakin, In re . . . 159 
 
 Deau, In re : Cooper Dean 
 
 v. Stevens ... 51 
 
 v. Dean . . .274 
 
 Delves v. Delves . . 77 
 Dent v. Bennett . . 78 
 Denton v. Donner . 77, 78 
 Dering v. Earl of Winchel- 
 
 sea .... 244 
 
 Desborough v. Harris . 252 
 
 Detillin v. Gale . . .192 
 Dibb v. Walker . . . 208 
 Dick, In re: Lopes v. Hume- 
 Dick . . . 152, 154 
 Dickinson, In re : Dickin- 
 son v. Walker . 277, 330 
 
 v. Dodds 
 
 289 
 
 Dickson, In re . . . 272 
 Diggles, In re: Gregory v. 
 
 Edmondson ... 21 
 Dillon, In re: Duffin v. 
 Duffin ... 8, 31, 32 
 
 v.Parker . . 258 
 
 Dimes v. Scott . . 134, 135 
 Dixon, In re : Bryam v. Tull 99 
 213 
 56 
 199 
 171 
 28 
 163 
 
 v. Muckleston 
 
 Doble, In re 
 
 v. Manley 
 
 Docker v. Somes 
 Docwra, In re . 
 Dodds v. Tuke . 
 
xxvm 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Doherty v. Allman . . 113 
 Doloret v. Rothschild . 318 
 Dolphin v. Aylward . . 242 
 Donaldson v. Donaldson . 27 
 Dormell v. Bennett . . 326 
 Doss v. Secretary of State 
 
 for India ... 5 
 Douglas, In re: Obert v. 
 Barrow .... 51 
 
 v. Douglas . . 262 
 
 Downes v. Grazebrook . 78 
 Dowse, In re . . 270 
 
 v. Gorton . 163, 277 
 
 Draycott v. Harrison . . 101 
 Draycup, In re . . . 124 
 Drinkwater v. Combe . 226, 227 
 
 ■ v. Ratcliffe 123, 125 
 
 Drover v. Beyer . . 337 
 
 Drummond and Davie's 
 
 Contract, In re . . 98 
 Dryden v. Frost . . 192 
 
 Drysdale v. Pigott . . 251 
 Dubowski v. Goldstein . 305 
 Dudgeon v. Thomson . . 326 
 Dudley (Countess of) and 
 L. andN.W.Rly. Co., In 
 
 re 119 
 
 Duffield v. Elwes . 31, 34 
 Duncan v. Dixon . . 256 
 Duncan Pox & Co. v. N. and 
 
 S. Wales Bank . . 245 
 Dunlop v. Higgins . . 289 
 Dunne v. Boyd ... 34 
 Dunning v. Earl of Gains- 
 borough .... 315 
 Durrant v. The Ecclesias- 
 tical Commissioners 88, 89 
 Dutton v. Thompson . . 57 
 Dye v. Dye ... 30 
 Dyer, In re : Dyer v. Payn- 
 tcr . . . .125 
 
 v. Dyer ... 6 
 
 Dymond v. Croft . 195 et seq. 
 Dynevor (Lord) v. Tennant 229 
 Dyott v. Nevile . . .199 
 
 E. 
 
 Eaglesfield v. Marquis of 
 
 80, 85, 86 
 Con- 
 
 . 283 
 
 2 
 
 . 232 
 
 . 164 
 
 314 
 
 256 
 
 7 
 
 113, 
 
 Londonderry 
 Earle and Webster's 
 
 tract, In re 
 Earnes v. Hacon 
 Early v. Early . 
 Easton v. Landor 
 Ebbetts v. Conquest . 
 Ebbetts' Case . 
 Ebrand v. Dancer 
 Ebsworth and Tidy's Con- 
 tract, In re . . . 282 
 Ecclesiastical Commissioners 
 
 v. Wodehouse . . 112 
 
 Edmonds v. Robinson . 277 
 
 Edward Oliver, The . . 242 
 Edwards v. Barnard . . 277 
 
 v. Carter 256, 257, 261, 
 
 262 
 
 v. Edwards . . 333 
 
 v. Marcus . . 223 
 
 v. Meyrick . . 76 
 
 v. Standard R. S. 
 
 Syndicate . . , 331 
 Egerton v. Earl Brownlow . 36 
 Elderton, In re . . .93 
 Elias v. Snowdon Slate 
 
 Quaries Co. . . . 112 
 Ellenor v. Ugle . . . 332 
 Ellesmere Brewery Co. v. 
 
 Cooper .... 247 
 Elliott v. Dearsley . . 234 
 Ellis, In re . . . 277 
 
 v. Barker ... 78 
 
 v. Emmanuel . . 246 
 
 Elph in stone (Lord) v. Monk- 
 land Iron Co. . . 65, 66 
 Elsas v. Williams . . 336 
 Emanuel and Simmonds, In 
 
 re 299 
 
 Emmet's Estate, In re . 273 
 Emuss v. Smith . . 132 
 
 England, In re . . . 208 
 English and Investment Co. 
 v. Brunton . . . 313 
 
TABLE OF CASES. 
 
 XXIX 
 
 Emiis (Sir J.), In re : Coles 
 
 v. Peyton . . . 245 
 Eno v. Tatham . . .231 
 
 Enohin v. Wylie . . 2 
 Erlanger v. New Sombrero, 
 
 etc., Co. ... 79 
 
 Esdaile v. Visser . . 186 
 
 Espin v. Pemberton . . 313 
 
 Eugenie, The . 242 
 European Central Railway 
 
 Co., In re . . . 229 
 European Life Assurance 
 
 Society, In re . . 254 
 Evans, Ex parte : In re 
 
 Watkins . . 329 et seq. 
 
 , In re . . .150 
 
 v. Bagshaw . . 123 
 
 v. Bear . . . 186 
 
 v. Cheshire . . 73 
 
 v. Evans (31 W. E 
 
 495) 
 
 ■»• — - ([1892] 2 
 
 Ch. 173) 
 
 v. Manchester, Shef- 
 field and Lincolnshire 
 Railway Co. . 
 
 v. Ware . 
 
 Everitt v. Remington 
 
 v. Automatic Co. . 
 
 v. Ereritt 
 
 Ewing v. Orr Ewing (9 App. 
 Cas. 34). 
 
 v. (10 App. 
 
 Cas. 453) 
 
 Exchange and Hop Ware- 
 houses, Limited v. Associ- 
 ation of Land Financiers 
 
 Exchange Telegraph Co. v. 
 Gregory .... 
 
 Exmouth, In re : Exmouth 
 v. Praed .... 
 
 Eykyn's Trusts, In re 
 
 Eyre, In re 
 
 v. Eyre 
 
 v. Wynn Mackenzie . 
 
 127 
 
 36 
 
 327 
 306 
 310 
 
 201 
 
 78 
 
 198 
 
 325 
 
 38 
 
 10 
 
 137 
 
 160 
 
 195 
 
 F. 
 
 PAGE 
 
 Fairer v. Park . . |238, 269 
 Fairfield & Co. v. London 
 
 and East Coast, etc., Co. . 199 
 Faithfull v. Ewen . . 177 
 
 v. Woodley . . 199 
 
 Falcke v. Gray . . .295 
 v. Scottish Imperial 
 
 Insurance Co. . 250, 251 
 
 Fane v. Fane . . . 296 
 Farman, In re . . .8, 34 
 Farnell's Settled Estates, In 
 
 re 121 
 
 Farnham (a lunatic), In re . 58 
 Farquharson v. Floyer . 237 
 Farrand v. Yorkshire Bank- 
 ing Co 213 
 
 Farrar v. Cooper . . 324 
 
 v. Farrars, Limited 204 
 
 Farrer v. Lacy, Hartland & 
 
 Co. ... 196, 197 
 
 Farewell v. Coker . . 87 
 Fawsitt, In re: Galland v. 
 
 Burton . . . .279 
 Fearnside v, Flint . 207, 208 
 Federal Bank of Australia, 
 
 In re . . . 3 
 
 Fenner v. Wilson . . 323 
 Ferguson v. Ferguson . 186 
 
 v. Gibson . . 245. 
 
 Fewings, Ex parte . 228, 229 
 Fiddey, In re : Heinrich v. 
 
 Sutton . . . . 177 _ 
 , In re: Jones v. 
 
 Frost . . . 175, 177 
 Field v. Field . . .150 
 Finch, In re : Finch v. Finch 8 
 
 v. Finch ... 8 
 
 v. Hattersley . . 237 
 
 Finnis to Forbes . . 283 
 Firth v. Slingsby . . 209 
 Fish, In re . . .173 
 
 Fisher v. Keane . . . 324 
 Fisk v. Attorney-General . 51 
 Fitzgerald, In re . . 238 
 Fitzroyu. Duke of Richmond 159 
 
XXX 
 
 TABLE OF OASES. 
 
 Fleck, In re: Colston v. 
 
 Eoberts . . . .233 
 Fleggv. Prentis. . . 330 
 Fletcher, In re : Gillings v. 
 
 Fletcher . . .269 
 
 v. Ashburner . 128 
 
 Flint, In re : Coppock v. 
 
 Vaughan . . .328 
 Flood v. Jackson . . 324 
 Flower, In re . . . 150 
 Forbes v. Jackson . . 246 
 
 v. Moffatt . . 229 
 
 v. Steen . . .129 
 
 Forster v. Abraham . . 29 
 
 v. Patterson . . 209 
 
 Fortescue v. Barnett . . 26 
 Foster, In re . . . 278 
 
 , In re, and Lister . 28 
 
 v. Foster . . 128, 130 
 
 v. Beeves . . 299 
 
 Fourth City Mutual Benefit 
 
 Building Society v. 
 
 Williams . . .215 
 Foveaux, In re: Cross v. 
 
 London Anti- Vivisection 
 
 Society .... 51 
 Fowkes v. Pascoe . . 5 
 Fowler, In re: Fowler v. 
 
 Odell . . . 113, 332 
 Fox v. Hawks ... 26 
 
 v. Macreth ... 77 
 
 Foxon v. Gascoigne . . 176 
 Francke, In re . . . 333 
 Frank v. Frank . . .258 
 Franks v. Bollans . . 77 
 Fraser v. Murdock . . 163 
 Freeman v. Pope . 54 et seq. 
 Freeman's Settlement Trusts, 
 
 In re . . . .29 
 Freemantle v. Banks . . 268 
 Freme, In re : Freme v. 
 
 Logan .... 116 
 French v. Chichester . . 235 
 Frisby, In re : Allison v. 
 
 Frisby . . . 207, 208 
 Friswell v. King . . 178 
 Fry, In re : Fry v. Lane 72, 73, 74 
 
 PAGE 
 
 Fry v. Tapson . . 147 
 
 Fuggle v. Bland . . . 332 
 
 Fulton v. Andrews . . 77 
 
 Furley v. Hyder . 138, 144 
 
 Furneaux v. Eucker . 272, 273 
 
 Fytche v. Fytche . . 260 
 
 G. 
 
 G., In re (an infant) . . 93 
 Gadd, In re : Eastwood v. 
 
 Clark . . . .142 
 Gainsford v. Dunn . . 234 
 Gale v. Gale ... 56 
 Gapp v. Bond . . .221 
 Garnett, In re : Gandy v. 
 
 Macaulay . 8, 87, 88, 277 
 Garrard v. Frankel . . 90 
 
 v. Lord Lauderdale 
 
 59,60 
 Garrett v. Wilkinson . . 10 
 Gaskell's Settled Estates, In 
 
 re 120 
 
 Gaskin v. Balls 320 et seq. 
 
 v. Bogers . . 243 
 
 Gedye v. Duke of Montrose 318 
 Gee v. Bell . . .333 
 General Credit Discount Co. 
 
 v. Glegg . 64, 201, 224 
 
 General Share Trust Co. v. 
 
 Chapman . . . 177 
 Gent, In re . . . 186 
 George v. Bank of England 7 
 
 v. Howard . . 10 
 
 Gerard's Settled Estates, In 
 
 re 120 
 
 Gibbins v. Eyden . . 233 
 Gibbs v. Guild . . .190 
 
 v. Hayden . . 124 
 
 Gilbert v. Gonard . . 183 
 
 v. Smith . 123, 125 
 
 Gilchrist, Ex parte : In re 
 
 Armstrong . . 99, 108 
 Gilchrist Educational Trust, 
 
 In re 51, 53 
 
 Giles, In re : Jones v. Penne- 
 
 father . . . 168, 169 
 
TABLE OF OASES. 
 
 XXXI 
 
 Giles, In re : Real, etc., Ad- 
 vance Co. v. Michell 200, 278, 
 280 
 
 , In re: Strong v. 
 
 Carlyle Press . . 280 
 
 Gill v. Downing . . 250 
 
 Gilroy v. Stephens . . 135 
 Ginesi v. Cooper & Co. 301, 302 
 Gisborne v. Gisborne . 136 et seq. 
 Gladstone, In re . . 277 
 Glegg v. Rees ... 61 
 Glenorchy (Lord) v. Bosville 
 
 36, 37 
 Globe Iron Company's Case 12 
 Gloucester Bank (County 
 
 of) v. Budry, etc., Co. . 332 
 Gloucestershire Banking Co. 
 
 V.Phillips ... 97 
 Goddard v. Carlisle . . 77 
 Godfrey, In re : Godfrey v. 
 Faulkner . . .149 
 
 v. Poole . 61, 62 
 
 Goldsworthy, In re . . 92 
 Gooch, In re . . .10 
 
 v. London Banking 
 
 Association . . . 324 
 Goodenough, In re : Mars- 
 land v. Williams . . 135 
 Goodfellow v. Burchett . 268 
 Goodier v. Edmunds . . 129 
 Goodman v. Mayor, etc., of 
 
 Saltash . . . 28,52 
 Gordon, In re . . . 131 
 
 v. Gordon . . 296 
 
 v. Silber . . 99 
 
 Gottlieb v. Cranch . . 252 
 Goughv. Etty . . .147 
 Gowan, In re : Gowan v. 
 
 Gowan .... 39 
 Graham, In re . . . 248 
 Grange v. White . . 125 
 Grave v. Lord Salisbury . 268 
 Grave v. Forman . . 262 
 Gray, In re : Gray v. Gray 239 
 
 v. Johnston . . 16 
 
 v. Seckham . . 246 
 
 v. Siggers . . . 135 
 
 PAGK 
 
 Graydon, In re . . . 177 
 Great Britain Mutual Life 
 
 Assurance Society, In re 255 
 Great Berlin Steamboat 
 
 Co., In re . . . 183 
 Great Northern Railway 
 
 Co. v. Coal Co-operative 
 
 Society . . . .221 
 Greated v. Greated . . 234 
 Greave's Settlement Trusts, 
 
 In re . . . . 131 
 Green, In re : Baldock v. 
 
 Green . . . 237, 238 
 
 v. Biggs . . .200 
 
 v. Britten . . 134, 135 
 
 v. Paterson . . 27 
 
 v. Sevin . . .319 
 
 Green v. Wynn . . 62, 246 
 Greenhill v. North British, 
 
 etc., Co 261 
 
 Greenough v. Littler . . 197 
 Greenwood v. Hornsey . 326 
 
 v. Sutcliffe . 194 
 
 Greer v. Young . 174 et seq., 251 
 Gretton v. Hayward . . 258 
 Greville v. Brown . . 238 
 Grey's Settlement, In re . 106 
 Grier v. Grier ... 39 
 Griffith v. Blake . . 323 
 
 v. Hughes . .152 
 
 v. Pound . 199, 218 
 
 Griffiths, In re : Griffiths v. 
 
 Lewis . . . .280 
 
 v. Ricketts . . 61 
 
 v. Robins . 78, 79 
 
 Grigg v. National Guardian 
 
 Assurance Co. . . 223 
 Griggs v. Gibson . .261 
 Grissell v. Swinhoe . . 260 
 Groom v. Cheesewright . 175 
 Groves v. Groves ... 9 
 Gunn, In the Goods of . 129 
 Gurney, In re : Mason v. 
 
 Mercer .... 191 
 Guthrie v.Walrond 263,272, 273 
 Guy v. Churchill . . 176 
 Gyhorj, In re . . . . 277 
 
XXX11 
 
 TABLE OF OASES. 
 
 H. 
 
 PAGE 
 
 333 
 
 326 
 
 221 
 
 , 292 
 
 278 
 125 
 
 H.'s Estate, In re : H. v. H. 
 
 Hackett v. Baiss 
 
 Hadley v. Beedom 
 
 Haigh v. Kaye . . 8 
 
 Hake, In re 
 
 Halfhide v. Robinson 
 
 Halifax Joint Stock Banking 
 
 Co. v. Gledhill . . 57 
 Hall, In re (10 W. R. 37) . 252 
 
 , In re (51 L. T. 901) . 143 
 
 , A. W., & Co., In re 313, 314 
 
 v. Hall (L. R. 8 Ch. 430) 27 
 
 v. ([1891] P. 302) 178 
 
 v. Heward . . 194, 201 
 
 v. Truman Hanbury & 
 
 Co 340 
 
 Hall-Dare v. Hall-Dare . 89 
 Hallett & Co., In re, Ex 
 
 parte Blane . . . 185 
 Hallett's Estate, In re : 
 
 Knatchbull v. Hallett 18, 
 
 179 et seq., 190 
 Halliday, In re . . . 93 
 Hambrough v. Mutual Life 
 
 Insurance Co. . . 255 
 
 Hamer v. Giles ; Giles v. 
 
 Hamer . . . .177 
 Hamilton, In re : Trench v. 
 
 Hamilton ... 22 
 Hamilton v. Brogden, No. 1 
 
 ([1891] W. N. 14) . . 330 
 v. , No. 2 
 
 ([1891] W. N. 36) , 
 
 . J. Ch. 88) . 
 v, Hamilton 
 
 . 331 
 (60 
 
 . 340 
 106, 259 
 Hamlet, In re . . . 7 
 Hammersley v. De Biel . 291 
 Hammersmith Railway Co. 
 
 v. Brand . . .327 
 Hampden v. Eart of Buck- 
 inghamshire . . .117 
 Hance v. Harding . . 56 
 Hancock, In re . . . 24 
 v . Hancock . . 98 
 
 PAGE 
 
 Hancock v. Smith . 181, 182 
 Hanfstaengl v. Baines & 
 
 Co 328 
 
 v. Empire Palace 328 
 
 Hardiman, In re : Pragoell 
 
 v. Batten . . • 126 
 Harding v. Harding . . 231 
 Harding's Estate, In re . 119 
 Hardy v. Pothergill . . 247 
 Hargraves v. Rothwell . 316 
 Hargreaves and Thompson's 
 
 Contract, In re 
 i In re 
 
 281 et seq. 
 Midgley 
 
 . 278- 
 . 61 
 
 261, 263 
 . 209 
 . 238 
 . 131 
 
 194, 214r 
 . 158 
 
 v. Tatley 
 Harland v. Binks 
 Harle v. Jarman 
 Harlock v. Ashberry 
 Harloe v. Harloe 
 Harman, In re . 
 Harpham v. Shacklock 
 Harries' Trusts, In re 
 Harris v. Beauchamp Bros. 
 
 '322,330,331,332 
 
 v. Harris . . . 168 
 
 v. Pepperell . . 90 
 
 v. Tremenheere . 77 
 
 „. Tubb . . 28,56 
 
 Harris' Settled Estates, In re 98 
 Harrison, In re : Harrison v. 
 
 Harrison . . . 110- 
 In re : Latimer v. 
 
 Harrison 
 
 Allen 
 
 In re : Smith v. 
 
 v. Harrison (L. R. 
 
 8 Ch. 342) . 
 v. Harrison (13 
 
 P. D. 180) . 
 
 v. Naylor . 
 
 v. Southwark and 
 
 168 
 278 
 237 
 
 175 
 
 38 
 
 Vauxhall Water Co. . 327 
 Harrop's Trusts, In re . 29" 
 Hart v. Herwig ... 4 
 Harter v. Colman . 217, 218 
 Hartland v. Murrell . . 237 
 Harvey, In re : Harvey v. 
 
 Hobday . . . .226 
 
TABLE OF CASES. 
 
 XXXU1 
 
 Harvey, In re : "Wright v. 
 
 Woods . . . .280 
 v. Croydon Rural 
 
 Sanitary Authority, 296, 336 
 
 v. Mount 
 
 Harvey's Estate, In 
 
 Godfrey v. Harben 
 Hassell v. Stanley 
 Hastings, In re : Lady 
 Hatch v. Hatch . 
 Hatten v. Russell 
 Hatton v. Harris 
 
 v. Haywood 
 
 Hawkins, Ex parte 
 Hawksley v. Outram 
 Hawks worth, In re 
 
 . 78 
 
 re : 
 . 102 
 . 240 
 . 99 
 78,79 
 
 118, 319 
 64,65 
 . 330 
 . 131 
 . 287 
 . 103 
 
 -v. Hawks worth 
 
 93,94 
 Hawthorne, In re : Graham 
 
 v. Massey . . .4 
 Hay v. Watkins . . 158 
 
 Hay's Case ... 79 
 Haygarth v. Wearing . 72 
 Hayter v. Trego . . 49 
 
 Hayward v. East London 
 
 Waterworks Co. . . 328 
 Haywood v. Brunswick 
 
 Building Society . . 308 
 Head's Trustees and Mac- 
 
 donald, In re . . . 237 
 Heard v. Pilley . . .291 
 Heartley v. Nicholson . 24 
 Heath v. Pugh . . .209 
 Heckles v. Heckles . . 124 
 Hedgeley, In re : Small v. 
 
 Hedgeley . . .106 
 Hedley v. Bates . . . 328 
 Helmore v. Smith, No. 2 . 334 
 Helshy, In re . . .283 
 Henderson v. Astwood 194, 205 
 
 v. Rothschild . 61 
 
 Hengler, In re : Prowde v. 
 
 Hengler . . 134,277 
 
 Henry v. Armstrong . . 27 
 Henry Pound, Son and 
 
 Hutchins, In re . 331 
 
 Hensman v. Fryer . 233, 237 
 
 PAGE 
 
 Henthorn v. Eraser . . 289 
 Henty v. Wrey 155 et seq., 297 
 Henvell v. Whittaker . 237 
 Herhert v. Watson . . 107 
 Hermann Loog v. Bean . 326 
 Hervey v. Smith . . 314 
 Hetherington's Trusts, In re 30 
 Hetling and Merton's Con- 
 tract, In re . . 150, 283 
 Hewett, In re, Ex parte 
 
 Levene .... 99 
 Hewison v. Negus . . 28 
 
 v. Ricketts . 247 
 
 Hewitt v. Kaye ... 32 
 
 v. Loosemore . .212 
 
 Heyman v. Dubois . . 246 
 Hickley v. Hickley . . 77 
 Hickman v. Berens . . 296 
 Hickson v. Darlow . . 326 
 Higgs v. Schrader . . 177 
 Hill, In re ... 2 
 
 v. Chapman . . 34 
 
 v. Cooper . . . 105 
 
 v. Hill ... 94 
 
 v. Walker. . . 169 
 
 Hilliard v. Pulford . 80, 86 
 Hillman, Ex parte: In re 
 
 Pumfrey ... 56 
 
 Hinchinbroke (Lord) v. 
 Seymour . . 156, 158 
 
 77 
 317 
 
 Hindson v. Weatherill 
 Hipwell v. Knight 
 Hirschfeld v. L. B. & S. C 
 
 Rly. Co. 
 Hitchman v. Stewart 
 Hoare, In re 
 v. Niblett 
 
 . 89 
 . 246 
 . 331 
 . 99 
 163, 247 
 78, 297 
 
 Hobbs v . Wayet 
 Hoblyn v. Hoblyn 
 Hodges, In re : Davey v. 
 
 Ward . . . 138,140 
 
 v. Hodges 102, 108 
 
 Hodgkinson, In re . .164 
 Hodgson, In re : Beckett v. 
 
 Ramsdale ... 8 
 , In re: Hodgson 
 
 v. Pox 
 
 169 
 
XXXIV 
 
 TABLE OF OASES. 
 
 Hodson, In re . 
 Holden, In re 
 Holford, In re . 
 Holland v. Worley 
 Holmes v. Holmes 
 
 v. Mill age 
 
 v. Penney 
 
 v. Powell 
 
 53. 
 
 PAGE 
 
 257,261 
 
 57,58 
 
 271 et seq. 
 
 . 326 
 
 . 268 
 
 330, 332 
 
 55, 294 
 
 . 314 
 
 Holmesdale (Viscount) v. 
 
 West . 
 Holroyde v. Garnett 
 Homes, In re : Hallowes v. 
 
 Homes .... 
 Honywood v. Honywood . 
 Hood v. Lord Barrington . 
 Hood Barrs v. Cathcart 
 
 ([1894] 3 Ch. 376) 
 v. ([1894] 
 
 2 Q. B. 559) 
 v.- 
 
 39 
 186 
 
 106 
 111 
 286 
 
 101 
 
 101 
 
 1 Q. B. 873) 
 v. Heriot 
 
 -([1895] 
 
 101 
 101, 106 
 Hooson, Ex parte . . 186 
 Hope v. D'Hedouville . . 135 
 v. Hope . . 100, 277 
 
 v. Liddell 
 
 Hopkins, In re 
 In re : 
 
 Dowd v. 
 
 Hawtin . 
 Hopkinson v. Marquis 
 
 Exeter . 
 v. Miers . 
 
 313 
 
 28 
 
 331 
 
 of 
 
 Hopton v. Dryden 
 Horlook, In re . 
 ■ — v. Wiggins ; 
 
 324 
 
 . 204 
 
 . 166 
 
 269, 270 
 
 Wig- 
 
 gins v. Horlock . . 270 
 
 Home v. Shepherd . . 178 
 Horne's Settled Estates, In 
 
 re 119 
 
 Horner v. Graves . . 304 
 
 Hosking v. Smith . . 215 
 Hotchkys, In re : Preke v. 
 
 Calmady . . .263 
 
 Houghton's Estate, In re . 119 
 Houldsworth v. City of 
 
 Glasgow Bank . . 190 
 v. Evans . 318 
 
 PAGE 
 
 Household Fire Co. v. Grant 289 
 How v. Earl Winterton . 190 
 Howard v. Panshawe . . 68 
 
 v. Harris . . 223 
 
 -v. Jalland . . 130 
 
 Howard's Estate, In re . 228 
 
 Settled Estates, 
 
 In re . . . . 120 
 Howe v. Lord Dartmouth. 
 
 132, 133, 135 
 
 v. Smith ... 67 
 
 Hoyle, In re . . 289,292 
 Hubback, In re: Inter- 
 national Marine Hydro- 
 pathic Co. v. Hawes . 167, 169 
 Hubbard, Ex parte . . 222 
 Huddersfield Banking Co. v. 
 
 Lister & Son . 
 Hudson v. Bartram 
 
 v. Buck . 
 
 v. Cripps 
 
 v. Temple 
 
 . 317 
 
 . 288 
 . 309 
 317, 318 
 Hughes, In re : William . 33 
 
 v. Cole . . 209 
 
 Hughes-Hallett v. Indian 
 
 Mammoth Gold Mines Co. 246 
 Huguenin v. Baseley . . 78 
 Huish, In re : Bradshaw v. 
 
 Huish . . . .270 
 Hulkes, In re : Powell v. 
 
 Hulkes ... 80, 81 
 Hume, In re : Forbes v. 
 
 Hume . 
 Humphreys, In re 
 Hunt v. Elmes . 
 
 v. Hunt 
 
 Hunter v. Atkins 
 v. Myatt 
 
 Hurry v. Hurry . 
 Hurst v. Beach . 
 Hussey v. Horne-Payne 
 Hutchinson and Tenant, In 
 
 Hyde v. Hyde . 
 
 v. Warden 
 
 Hyett v. Mekin . 
 Hylton v. Hylton 
 
 128. 
 
 54 
 272 
 212 
 323 
 
 79 
 199 
 126 
 
 34 
 287 
 
 21 
 106 
 229 
 131 
 
 78 
 
TABLE OF CASES. 
 
 XXXV 
 
 I. 
 
 PAGE 
 
 Illidge, In re : Davidson v. 
 
 Illidge . . . 167,245 
 
 Imbert-Terry v. Carver . 198 
 Incorporated Society v. 
 
 Bichards ... 52 
 Ind Coope & Co. v. Emmer- 
 
 son .... 340 
 Ingham, In re: Jones v. 
 
 Ingham . . . .213 
 
 v. Sutherland . . 333 
 
 Innes v. Mitchell . . 2, 4 
 
 Instone v. Emslie . . 197 
 International Life Assurance 
 
 Society, In re . . . 242 
 International Pulp and 
 
 Paper Co., In re : Knowle's 
 
 Mortgage ... 12 
 
 Isaac v. Worstencroft . . 214 
 Isaacs, In re . . .132 
 
 v. Chinery . . 332 
 
 Isaacson, In re . . . 220 
 
 J. v. S 327 
 
 Jackson and Woodburn's 
 
 Contract, In re . . 283 
 v. Barry Railway 
 
 Co 324 
 
 v. Smith . . 177 
 
 v. Winniforth . 308 
 
 James, Ex parte : In re 
 
 Condon . 
 
 v. Couchman 
 
 v. Kerr . 
 
 v. Lichfield 
 
 v. Smith 
 
 . 82 
 . 28 
 . 73, 224 
 . 314 
 30, 291, 292 
 Jarrett v. Hunter . . 286 
 Jay v. Eobinson . . 106 
 Jeacock v. Ealkener . . 268 
 Jeaffreson's Trusts, In re . 158 
 Jeans, In re . . * 159 
 Jeffery, In re . . .272 
 Jenkins v. Hope . . 323 
 v. Eidgeley . . 200 
 
 PAGE 
 
 Jenner v. Jenner . . 296 
 Jenner-Fust v. Needham . 332 
 Jenney v. Mackintosh . 4 
 Jennings v. Hammond . 43 
 
 v. Jordan . 216 et seq. 
 
 Jermy v. Preston . .128 
 Jervis v. Berridge . . 288 
 Jobson v. Palmer . . 148 
 John Morley Building Co. 
 
 v. Barras . . . 335 
 Johns v. James . . 59 et seq. 
 Johnson, In re : Golden v. 
 
 Gillam . . 56,57,295 
 , In re : Moore v. 
 
 Johnson .... 97 
 
 v. Edge . . 327 
 
 v . Lord Harrowby 243 
 
 Johnston, In re: Cockerell 
 
 v. Earl of Essex . 38, 39 
 Johnstone v. Cox . . 194 
 Jones, In re (26 Ch. D. 
 
 736) . . .114 et seq. 
 
 , In re (38 W. E. 90) 278 
 
 , In re : Calver v. 
 
 Laxton .... 168 
 , In re : Farrington 
 
 v. Forrester . 124, 194, 262 
 and Judgments Act, 
 
 In re . . . . 330 
 
 1;. Clifford . . 86 
 
 v. Daniel . . 287 
 
 v. Evans . . 169 
 
 v. Harris (55 L. T. 
 
 884) . . . .200 
 v. (9 Vesey 
 
 493) . . . .105 
 
 v. Hough . . 65 
 
 v. Lees . . 304,305 
 
 Co. 
 
 • v. Monte Video Gas 
 
 • v. Selby . 
 
 ■ v. Smith 
 
 ■ v. Turnbull . 
 
 • v. Watts 
 
 ■ v. Westcombe 
 
 Jordan, In re : 
 Picard . 
 
 Kino v. 
 
 337 
 34 
 313 
 177 
 312 
 259 
 
 108 
 
XXXVI 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Joshua Stubbs, In re . . 331 
 Judkin's Trusts, In re 272, 274 
 Jupp, In re : Jupp v. Buck- 
 well .... 99 
 
 K. 
 
 Keane, In re . . 105, 176 
 
 v. Robarts . . 16 
 
 Keates v. Lyon . . . 310 
 Keith v. Day . . . 200 
 Kekewieh v. Manning 26, 27 
 Kelland v. Fulford . . 130 
 Kelly v. Morris . . .328 
 Kemble v. Parren . 65, 66 
 Kemp's Settled Estates, In 
 
 re 29 
 
 Kempshall v. Holland . 296 
 Kendall v. Hamilton . . 247 
 Kennedy v. De Trafford . 205 
 Kensington and Knights- 
 bridge Electric Lighting 
 Co. v. Lane Pox Electrical 
 
 Co 327 
 
 Kensit v. Great Eastern 
 
 Railway Co. . . . 328 
 Kent v. Riley ... 57 
 Ker v. Wauchope . . 258 
 Kerr's Trusts, In re . . 157 
 Kershaw, In re : Drake v. 
 
 Kershaw . . . 232 
 Kevan v. Crawford . . 58 
 Kibble v. Pairthorne . . 209 
 Kidd, In re . . . 233 
 Kilford v. Blaney . . 238 
 King, In re . . .26 
 
 v. Dickeuon ' . 308, 310 
 
 v. Hamlet ... 70 
 
 v. Savery ... 73 
 
 v. Stewart ... 86 
 
 Kingston-upon-Hull, Mayor, 
 
 etc., of v. Harding . . 248 
 Kinsman v. Rouse . . 209 
 Kirby v. School Board for 
 
 Harrowgate . . . 310 
 Kirkham v. Peel . 182, 186 
 
 PAGE 
 
 Kirwan's Trusts, In re . 159 
 Kitts v. Moore . . .324 
 Klcebe, In re : Kannreuther 
 
 v. Geiselbrecht . 2, 279 
 Knapp's Settlement, In re . 273 
 Knight, In re . . .177 
 
 v. Simmonds . . 310 
 
 Knight's Will, In re . . 164 
 Knowle's Settled Estates, 
 
 In re . . . 29,116 
 Knox v. Mackinnon . 139, 149 
 
 v. Turner . . . 252 
 
 Knox's Trusts, In re . . 164 
 Kronheim v. Johnson . 30 
 
 cliffe . 
 
 . 324 
 
 Lacey v. Hill 
 
 . 247 
 
 Lacon, In re : Lacon 
 
 v. 
 
 Lacon . 
 
 . 269 
 
 La Grange v. McAndrew 
 
 . 337 
 
 Lamas v. Bailey 
 
 . 291 
 
 Lamb v. Evans . 
 
 . 325 
 
 Lambe v. Eames 
 
 20,21 
 
 Lambert's Estate, In re 
 
 . 100 
 
 Lambton v. Mellish . 
 
 . 327 
 
 Lancefield v. Iggulden 
 
 . 233 
 
 Lander and Bagley's Con- 
 tract, In re . 283, 287, 300 
 Lands Allotment Co., In re 
 
 11, 189 
 Langley, Ex parte : In re 
 
 Bishop . . . .323 
 Lansdown v. Lansdown . 295 
 Lashmar, In re : Moody v. 
 
 Penfold . . . " . 278 
 Lassence v. Tierney . . 291 
 Laver v. Botham . . 167 
 Law v. Philby . . 199, 200 
 v. Local Board of Red- 
 ditch .... 65 
 Lawes, In re . . . 268 
 v. Bennett . . 131 
 
TABLE OF CASES. 
 
 XXXVU 
 
 PAGE 
 
 Lawrence v. Campbell . 339 
 
 v. Horton . . 324 
 
 Lea, In re : Lea v. Cooke 51, 53 
 
 v. Hinton . . . 251 
 
 Learoyd v. Halifax, etc., 
 
 Banking Co. . . .339 
 Leather, Cloth, etc., Co. v. 
 
 Lorsont. . . 304, 305 
 Le Bas v. Grant . . .200 
 Lee v. Nuttall . . .167 
 
 v. Sankey ... 18 
 
 v. Soames . . . 319 
 
 Lees v. Fisher . . . 197 
 Leggott v. Barrett . . 301 
 Leigh v. Dickeson . . 124 
 Leighton o. Leighton . 268 
 
 Leng, In re : Tarn v. 
 
 Emmerson . . 102, 246 
 Leonard v. Earl of Sussex . 37 
 Leonino v. Leonino . . 232 
 Leslie, In re : Leslie v. 
 
 French . . 163, 249 et seq. 
 
 v. Baillie . . 83 
 
 v. Young . . .328 
 
 Levasseur v. Mason . . 330 
 Lewin v. Wilson . . 207 
 Lewis, In re: Foxwell v. 
 
 Lewis . . . .130 
 
 v. Allenby . . 144 
 
 v. Boetefeur . . 243 
 
 v. Hillinan . . 75 
 
 v. Nobbs . 139, 150 
 
 Lewis's v. Lewis . . 336 
 Lightbody's Trusts, In re . 29 
 Liles v. Terry ... 77 
 Lincoln v. Windsor . . 172 
 Line v.Hall . . .158 
 Liquidation Estates Co. v. 
 
 Willoughby . . .228 
 Lister & Co. v. Stubbs . 182 
 Litchfield v. Jones . . 186 
 Little, In re : Harrison v. 
 
 Harrison . . 108, 160 
 ■y.Kingswood Colliery 
 
 Co 328 
 
 Little's Will, In re : In re 
 
 Harrison . . .107 
 
 Llewellin, In re : Llewellin 
 
 v. Williams . 
 Lloyd v. Attwood 
 
 v. Dimmack 
 
 v. Lloyd . 
 
 v. Nowell 
 
 v. Pughe . 
 
 Lloyd's Banking Co. 
 
 120 
 
 55 
 247 
 158 
 287 
 
 10 
 
 212 
 
 169 
 
 39 
 
 68 
 
 137, 138 
 
 10 
 
 Jones 
 Loane v. Casey 
 Loch v. Bagley 
 Lock v. Pearce 
 Lofthouse, In re 
 London and Blackwall Rail 
 
 way Co. v. Cross . 322, 324 
 London and Coun ty Banking 
 
 Co. v. London and Eiver 
 
 1'late Bank . 
 London and 1'roviucial Bank 
 
 v. Bogle .... 
 London and South Western 
 
 Railway Co. v. Gomm 306, 308 
 London, Bombay, etc., 
 
 Bank, In re . 
 London, Brighton, and S. C. 
 
 Railway Co. v. Truman . 
 London Chartered Bank of 
 
 Australia v. Lempriere . 
 London, Chatham, and 
 
 Dover Railway Co. v. 
 
 Bull .... 
 London Life Assurance v. 
 
 Mansel .... 
 London Scottish Benefit 
 
 Society v. Chorley 
 
 106 
 
 80 
 
 327 
 
 102 
 
 210 
 
 255 
 
 . 173 
 
 Long v. Ovenden . 158, 273 
 Longmate v. Ledger ... 72 
 Lord and Fullerton's Con- 
 tract, In re . . 2 
 Louis v. Smellie . . 325 
 Love, In re: Hill v. Spur- 
 
 geon . . . .164 
 Low v. Bouverie . . 215 
 
 Lowe v. Fox ... 97 
 Lowndes v. Norton . .111 
 Lowther v. Heaver . . 299 
 Lucan (Earl of), In re . 27 
 
XXXV111 
 
 TABLE OF CASES. 
 
 TAGE 
 
 Lucas v. Dixon . . . 290 
 
 v. Harris . . .333 
 
 Luddie's Trustee v. Peard . 76 
 Luff v. Lord . . 77, 78 
 Lulham, In re . . . 30 
 Lumley v. Wagner . . 326 
 Lyddon v. Moss . . 79 
 
 Lyell v. Kennedy (8 App, 
 Cas. 217) . . .338 
 - (9 App, 
 
 Cas. 81) 
 
 339 
 (14 App. 
 
 Gas. 437) . . 23, 182 
 
 Lynde v. Waithman . . 198 
 Lynes, In re : Ex parte 
 
 Lester & Co. . . .99 
 
 Lyon v. Baker . . . 172 
 
 v. Home ... 78 
 
 Lyons (Mayor of) v. Advo- 
 cate-General of Bengal . 49 
 
 v. Blenkin . . 95 
 
 ■y.Wilkins . . 324 
 
 Lytton (Earl of) v. Devey 
 and Swan Sonnenschein 
 
 &Co 325 
 
 M. 
 
 Macbryde v. Weekes . . 319 
 Macdonald v. Irvine 132 et seq., 
 
 238 
 
 v. Whitfield . 245 
 
 Macduff, In re . . .49 
 Maofarlane v. Lister . 176, 177, 
 
 178 
 Mack v Postle . . .215 
 Mackay v. Douglas . . 57 
 Mackenzie v. Childers 308, 309 
 Mackintosh v. Pogose . 102 
 
 Macleod v. Jones . . 326 
 McCarogher v. Whieldon . 267 
 McCullock v. Dawes . . 165 
 McEntire v. Crossley Bros. . 221 
 McEwan v. Crombie . . 280 
 McPadden v. Jenkyns . -25 
 McGrath (infanta), In re 92, 94 
 
 PAGR 
 
 Mckenzie v. Hesketh . . 89 
 McMahon v. North Kent 
 
 Iron Works Co. . . 33 L 
 McManus v. Cooke . . 291 
 McPherson v. Watt 73, 74 et seq., 
 173, 296 
 M'Carthy v. Decaix . . 87 
 M'Keown v. Joint Stock 
 
 Institute ... 43 
 M'Myn, In re : Lightbown 
 
 v. M'Myn . . 169, 246 
 M'Queen v. Farquhar . 156 
 
 M'Rae, In re . . .277 
 Maddever, In re: Three 
 
 Towns Banking Co. v. 
 
 Maddever ... 58 
 Maddison v. Alderson 290, 291 
 Madell v. Thomas . . 221 
 Maggi, In re . . . 246 
 Magnus v. Queensland 
 
 National Bank . . 188 
 Magrath v. Morehead . . 38 
 Mahon (Lord) v. Lord 
 
 Stanhope . . .109 
 Makins o. Percy Ibotson 
 
 and Sons . . . 331 
 Malim v. Keighley . 20, 22 
 Malmesbury Railway Co. v. 
 
 Budd . . . .324 
 Manchester Banking Co. v. 
 
 Parkinson . . . 332 
 Manchester Eoyal In- 
 firmary, In re . . 152 
 Manchester, Sheffield, etc., 
 
 Railway Co. v. North 
 
 Central Waggon Co. . 222 
 Mander v. Palcke . . 309 
 Manders v. Mandevs . . 93 
 Manners (Lord) v. Johnson 307 
 
 v. Mew . . 212 
 
 Mansel, In re . . 144 
 ■ v. British Linen 
 
 Co. Bank . . . 323 
 Mara o. Browne . 17, 191 
 
 March, In re : Mander v. 
 
 Harris .... 99 
 Markwick v. Hardingham . 209 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Marlborough (Duke of), In 
 re: Davis v. Whitehead 
 
 9, 30, 56, 292 
 Marlborough's (Duke of) 
 
 Settlement, In re . . 119 
 Marris v. Ingram . . 186 
 Marsden v. Meadows . . 222 
 Marsden's Trusts, In re . 158 
 Marsh, In re, and Earl 
 Granville . . .283 
 
 v. Lee . . .217 
 
 Marshal v. Oruttwell . . 9, 10 
 Marshall v. Berridge . . 287 
 
 v. Bousfield . . 38 
 
 v. South Stafford- 
 shire Tramways Co. . 332 
 Martin v. Martin . . 4 
 
 v. Price . . .326 
 
 ■y.Eocke.Eyton&Co. 185 
 
 Martinez v. Cooper . . 212 
 Martinson v. Clowes . . 205 
 Mason, In re . . 274 
 
 Massingberd's Settlement, 
 
 In re . . . 150 
 
 Master v. Hansard . . 310 
 Matheson Brothers, Limited, 
 
 In re . . . . 3 
 Mathews v. Munster . . 296 
 
 v. Saurin . . 247 
 
 Matthaei v. Galitzin . . 5 
 Matthew v. Northern Assur- 
 ance Co. . . 252,253 
 Mattheson v. Clarke . . 188 
 Maxfield v. Burton . . 313 
 Maxim Nordenfelt Co. v. 
 
 Nordenfelt . . 303, 304 
 Mawer v. Harrison . . 245 
 May, In re . . 102, 169 
 
 v. May . . . 9, 62 
 
 v. Newton . . 278 
 
 v. Roberts . . 277 
 
 v. Thompson . . 288 
 
 Maydu. Field . . .267 
 Mayfair Property Co. v. 
 Johnston . . 123,322 
 
 Mead, In 
 Mead 
 
 re : Austin v. 
 
 31 
 
 PAGE 
 
 Medland, In re . . 277,278 
 Meek v. Devenish . . 131 
 Meinertzagen v. Walters . 266 
 Mellin v. White . . 326 
 Mercantile Bank of Aus- 
 tralia, In re . . . 3 
 
 Sydney 
 
 v. Taylor . . .247 
 
 Investment Co. 
 
 v. Eiver Plate Co. . . 331 
 Mercer, Ex parte: In re 
 
 Wise . . . 55,57 
 Merchant Banking Co. of 
 London v. The London 
 
 and Hanseatic Bank . 204 
 
 Mercier v. Cotton . . 338 
 
 v . Pepperell . . 336 
 
 Meredith, In re : Meredith 
 
 v. Facey ... 61 
 
 Meredith's Trusts, In re . 158 
 
 v. Wilson . . 310 
 
 Merryweather v. Moore . 325 
 
 Mervin, In re . . . 274 
 Metcalfe's Case . . .186 
 Metropolitan Asylum Dis- 
 trict v. Hill . . .327 
 
 Meux v. Cobley . . 113 
 
 Brewery Co. v. City of 
 
 London Electric Lighting 322 
 
 Meyer v. Simonsen . . 134 
 
 Michael's Trusts, In re . 107 
 Micklethwait v. Mickle- 
 
 thwait . . . .109 
 Michell o. Michell . . 105 
 Middleton, In re : Thomp- 
 son v. Harris . . . 239 
 
 v. Chichester . 186 
 
 v. Pollock . . 30 
 
 v. Beay . . 143 
 
 v. Windross . 260 
 
 Midgley v. Midgley . . 166 
 Midland Railway, etc., Co. v. 
 
 Johnson ... 81 
 
 v. 
 
 Withington Local Board. 88 
 Mildmay v. Quicke . 126, 178 
 v. Hungerford . 87 
 
xl 
 
 TABLE OF OASES. 
 
 Miles v. Harford 
 
 v. Harrison . 238. 
 
 v. Jarvis . 
 
 Millard's Settled Estates, 
 
 In re 
 Miller v. Cook . 
 
 v. Miller . 
 
 Mills v. Dudham 
 
 v. Parmer . 
 
 v. Fox 
 
 Milner's Settlement. 
 Milroy v. Lord . 
 Minet v. Morgan 
 Minors v. Battison 
 Minter v. Oarr . 
 Mitchel v. Reynolds . 
 Mitchell, In re : Wavell v, 
 
 Mitchell 
 
 v. Homfray . 
 
 v. Reynolds . 
 
 PAGE 
 
 38 
 
 ,243 
 
 125 
 
 120 
 73 
 
 34 
 305 
 
 45 
 
 , In re 
 
 , 107 
 23,26 
 . 339 
 141 et seq. 
 217, 218 
 . 305 
 
 . 199 
 78,79 
 . 305 
 . 302 
 . 243 
 . 45 
 118, 312 
 
 Magford v. Oourtenay 
 Mogg v. Hodges 
 Moggridge v. Thackwell 
 Mogridge v. Clapp . 
 Mogul S.S. Co. v. McGregor 
 
 303, 304, 324 
 Monck v. Monck 
 Monkhouse, Ex parte : In 
 
 re Maughan . 
 Monson v. Tussauds . 
 Montagu, In re . 
 
 v. Lord Inehiquin 
 
 v. Earl of Sand- 
 
 wich. .... 
 Montefiore v. Browne . 59, 
 Moody, In re . 
 Moor v. Anglo-Italian Bank 
 Moore, In re : Moore v. 
 
 Koche .... 
 
 v. Darton 
 
 v. Prowd 
 
 v. Knight . 189 
 
 v. Moore (1 D. J. & 
 
 S. 602) 
 
 269 
 
 299 
 
 326 
 
 126 
 
 39 
 
 268 
 
 314 
 
 273 
 
 4 
 
 21 
 
 34 
 
 172 
 
 191 
 
 231 
 
 Eq. 474) 
 Moran v. Place 
 
 (L. R. 18 
 
 25,34 
 . 101 
 
 PAGE 
 
 Morgan v. Minet . . 76 
 Morland v. Cook . 308, 314 
 Morley, In re . . 135, 251 
 
 v. Loughnan . . 78 
 
 Morris «. Delobhel-Flipo 221, 223 
 
 v. Edwards . . 340 
 
 Morris' Estate, In re . . 169 
 Morse v. Royal ... 77 
 Moss's Trusts, In re . . 30 
 Mostyn v. West Mostyn, 
 
 etc., Co. ... 90 
 
 Mower's Trusts, In re . 241 
 Moxon v. Payne . 79, 296 
 
 v. Sheppard . 175, 176 
 
 Mumford v. Stohwasser . 214 
 Mundy's Settled Estates, In 
 
 re ... 116,120 
 
 Munt v. Glynes . . 38, 106 
 Murray, In re . . 182, 183 
 
 , In the Goods of . 2 
 
 Musgrave v. Sandeman 107, 108 
 Mussoorie Bank v. Raynor 20, 21 
 Mustapha, In re : Mustapha 
 
 v. Wedlake ... 34 
 Mutlaw v. Bigg . . .130 
 
 N. 
 
 Nanney v. Morgan . . 27 
 
 National Assurance Associa- 
 tion, In re . . 178 
 
 National Bank of Australasia 
 v. United Hand in Hand 
 Society . . 194, 205 
 
 National, etc., Society v. 
 Raper .... 200 
 
 National Permanent Build- 
 ing Society, In re . . 152 
 
 National Provincial Bank of 
 England and Marsh, In re 87 
 
 National Provincial Bank of 
 England v. Games . . 161, 
 191 et seq., 249 
 
 National Provincial Bank of 
 England v. Jackson . 213 
 
TABLE OF GASES. 
 
 xli 
 
 National Telephone Co. v. 
 
 Baker . . . .327 
 Neate v. Duke of Marl- 
 borough . . . .331 
 Neil, In re. . . .277 
 Nelson v. Page . . . 231 
 Nevill, In re . . . 234 
 
 v. Snelling 72, 73, 74 
 
 Nevin v. In re . . 91, 94 
 New Chile Gold Mining Co., 
 
 In re . . . 313 
 
 New Land, etc., Association 
 
 and Gray, In re . . 283 
 Newbegin v. Bell . . 236 
 Newbery, In re . 92, 93, 94 
 
 Newbiggin-by-the-Sea Gas 
 
 Co. v. Armstrong 334 et seq. 
 Newbould v. Smith . . 209 
 Newcastle's (Duke of) 
 
 Estate, In re . . . 117 
 Newen, In re : Newen v. 
 
 Barnes . . .29, 278 
 Newlove v. Shrewsbury . 222 
 Newman, In re . . . 65 
 
 v. Newman 253, 254 
 
 v. Kogers . . 317 
 
 Newmarch, In re : New- 
 march v. Storr . 229 et seq. 
 Newton v. Newton . . 324 
 New Zealand and Australian 
 
 Land Co. v. Watson 182, 183 
 Nichol v. Jones . . . 257 
 Nicholson, In re . . 135 
 Nicols v. Pitman . . 325 
 Niemann v. Niemann . 333 
 
 Noble v. Edwardes ; Ed- 
 
 wardes v. Noble . . 317 
 Norman v. Beaumont . 203 
 
 Norrington, In re : Brindley 
 
 v. Partridge . . . 139 
 Norris, In re : Allen v. 
 
 Norris . . . 29,143 
 
 v. Chambres . 4 
 
 North Australian Territory 
 
 Co., In re ... 78 
 North London Land Co. v. 
 
 Jacques .... 68 
 
 North London Eailway Co. 
 v. Great Northern Bail- 
 way Co. . . 320 et seq. 
 Northern Counties of Eng- 
 land Fire Insurance Co. 
 v. Whipp . . 210 et seq. 
 Norton v. Gover . . 333 
 
 v. Norton . . 266 
 
 Norwich Town Close Estate 
 
 Charity, In re . . 52 
 
 Nottage, In re . . .52 
 Nottingham Patent Brick 
 
 and Tile Co. v. Butler . 308 
 Noys v. Mordaunt . . 257 
 Nurse v. Durnford . 334 et seq. 
 
 0. 
 
 Odell, Ex parte : In re 
 
 Walden . . .219 et seq. 
 O'Kelly v. Culverhouse . 198 
 Okill v. Whittaker . . 88 
 Oldham v. Hand . . 77 
 
 v. Stringer . . 204 
 
 Olive, In re . . . 147 
 Olley v. Fisher ... 89 
 Opera, Limited, In re . 83 
 
 O'Reilly v. Thompson . 291 
 Orford (Countess of), In re 239 
 Oriental Financial Corpo- 
 ration v. Overend Gurney 
 
 &Co 248 
 
 Orme, In re . . . 8 
 Ormrod's Settled Estates, 
 
 In re . . . 119,120 
 Orpen, In re . . . 169 
 O'Borke v. Bolingbroke . 71 
 Osmond v. Fitzroy . . 78 
 Ovey, In re : Broadbent v. 
 
 Barrow .... 50 
 Owen, In re . . 198, 209 
 
 v. Crook . . 42, 332 
 
 v. Richmond . . 135 
 
 Owthwaite, In re . 152, 154 
 
xlii 
 
 TABLE OF CASES. 
 
 P. 
 
 PAGE 
 
 P.'s Settlement, In re . 108 
 
 Padstow Total Loss, etc., 
 Assurance Association, In 
 re . . . . 42,43 
 
 Page, In re : Jones v. Morgan 191 
 
 v. Ratliffe . 
 
 Paget v. Ede 
 
 v. Grenfell 
 
 v. Marshall 
 
 Palmer v. Locke 
 
 v. Walesby . 
 
 Pankhurst v. Howell . 
 
 Papillon v. Voice 
 
 Parfitt o. Chambre: Ex 
 
 parte D'Alteyrac . 
 
 v. Lawless 
 
 Paris, The 
 
 Parker, In re: Morgan v. 
 
 Hill 
 , In re : Wignall v. 
 
 Park . 
 
 v. Bolton 
 
 v. First 
 
 Hotel Co. 
 
 v. Frith . 
 
 Parkin, In 
 
 Avenue 
 
 re: Hill 
 Schwarz . 
 v. Thorold 
 
 301 
 
 4 
 
 268 
 
 89 
 159 
 335 
 269 
 
 37 
 
 64 
 
 77 
 
 177 
 
 246 
 
 54 
 37 
 
 326 
 318 
 
 98, 278 
 317, 319 
 Parkinson v. Hanbury . 315 
 Parrott, In re : Walter v. 
 
 Parrott .... 39 
 Parsons, Ex parte: In re 
 
 Townsend . . .221 
 , In re : Stockley v. 
 
 Parsons .... 97 
 Partington, In re : . . 147 
 Patching v. Barnett . . 239 
 Patman v. Harland 310, 311 et seq. 
 Patrick, In re : Bills v. 
 
 Tatham .... 26 
 Paul v. Paul ... 27 
 Payne v. Bonner . . 318 
 Peace and Waller, In re . 332 
 Peake's Settled Estates, In 
 
 re 28 
 
 Pearce, In re 
 
 Pearl Life Assurance Co. v, 
 
 Buttenshaw . 
 Pearson v. Pearson 
 
 PAGE 
 
 280 
 
 . 282 
 , 289, 301, 
 302 
 332 
 215 
 51 
 332 
 310 
 
 Pease v. Fletcher 
 
 v. Jackson 
 
 v. Pattinson 
 
 Peat v. Nicholson 
 Peek v. Matthews 
 Peel's (Sir Robert) School 
 
 at Tamworth, In re . 53 
 Pemberton v. Barnes 4, 121 et seq. 
 Pendlebury v. Walker . 244 
 Penhall v. Elwin . . 294 
 Penn v. Lord Baltimore . 4 
 Penny ■;;. Penny . . 238 
 
 Perkins, In re . . . 159 
 Perls v. Saalfeld . . 305 
 
 Perry-Herrick v. Attwood 
 
 212, 213 
 Persse v. Persse . . . 295 
 Pescod v. Pescod . . 324 
 Peter v. Russell . . .212 
 Peters v. Bacon . . 125, 126 
 Phillips v. Andrews . . 126 
 
 ■ v. Barlow 
 
 v. Foxall 
 
 v. Jones . 
 
 v. Miller 
 
 111 
 247 
 331 
 314 
 9 
 
 Philpotts v. Philpotts 
 Pickard, In re : Elmsley v. 
 
 Mitchell. ... 54 
 Pickering v. Pickering . 82 
 Pickersgill v. Rodger . . 258 
 Piddock v. Burt . . .186 
 Piercy, In re : Whitwham v. 
 
 Piercy ([1895] 1 Ch. 83) 4 
 , In re : Whitwham v. 
 
 Piercy (73 L. T. 732) . 144 
 Pierson v. Knutsford Estates 
 
 Co 176 
 
 Pike v. Hoare ... 4 
 Pinkerton v. Easton . 175, 176 
 Pini v. Roncoroni . . 333 
 Pitt v. Jackson . . . 158 
 v. Jones . . . 123 
 
TABLE OF CASES. 
 
 xliii 
 
 PAGE 
 
 199 
 217 
 95 
 201 
 313 
 
 Piatt v. Mendel . 
 Pledge v. Carr . 
 Plomley, In re : 
 
 v. Felton 
 
 Plumb v. Fluitt . 
 
 Pocock v. Attorney-General 
 
 49, 53 
 and Prankerd's Con- 
 tract, In re . . 107, 117 
 Pollard v. Clayton . . 318 
 
 v. Doyle . . 171 
 
 — '■ v. Photographic Co. 328 
 
 Pollard's Settlement, In 
 
 re 108 
 
 Pollock, In re . . . 269 
 Pooley's Trustee v. Whetham 76 
 Poor's Lands Charity, Beth- 
 
 nal Green, In re . .52 
 Pope, In re . . .334 
 
 v. Curl . . .325 
 
 Popple v. Sylvester . . 228 
 Porter v. Baddeley . . 134 
 
 v. Lopes . 123, 124, 127 
 
 v. Porter . . 125 
 
 Portland (Duke of) v. Top- 
 ham . . . 157,159 
 286 
 331 
 
 198 
 
 331 
 
 327 
 . 238 
 
 - -■v.Smith. . 80,86 
 Powers, In re : Lindsell v. 
 
 Phillips . . . 208, 278 
 Powys v. Mansfield . . 7 
 Preston v. Etherington . 186 
 
 v. Luck . 89, 323 
 
 v. Neele. . . 252 
 
 Preston Banking Co. v. 
 
 Allsup .... 89 
 Price, In re : Williams v. 
 
 Jenkins . . . 163, 239 
 v. Jenkins . 28, 56 
 
 Potter v. Duffield 
 
 Potts, In re 
 
 Poulett (Earl) v. Hill (Vis- 
 count) . . . 197, 
 
 Pound, Henry, Son, and 
 Hutchins, In re 
 
 Powell v. Birmingham Vine- 
 gar, etc., Co. . 
 
 v. Biley 
 
 Pride, In re : Shackell v. 
 
 Colnett . . . .226 
 Princess, The ... 65 
 Prison Charities, In re . 49 
 Pritchard v. Roberts . . 177 
 Provident Clerks' Associ- 
 ation v. Lewis . . 204 
 Prudential Assurance v. 
 
 Knott . . . .325 
 Prudential Assurance Co. v. 
 
 Thomas . . . .252 
 Pryor v. Pryor . . 157, 159 
 Prytherch, In re : Pryth- 
 
 erch v. Williams . 201, 332 
 Pumfrey, In re, deceased : 
 The Worcester City and 
 Banking Co. v. Blick 163, 250 
 Pusey v. Deshouverie . . 87 
 Pybus v. Smith . . .105 
 Pye, Ex parte ... 7 
 Pyle, In re . . .132 
 
 Pym v. Lockyer . . 266 
 
 Q. 
 
 Queade's Trusts, In re . 261 
 Queen v. Gyngall . 92, 93, 94 
 
 E. 
 
 Radcliffe (deceased), In re . 331 
 
 , In re : Badcliffe v. 
 
 Bewes . . 108, 160, 229 
 Radnor's (Earl of) Will 
 
 Trusts, In re . . 119, 140 
 Rae v. Meek . . 17, 149 
 Raggett, In re . . 217, 218 
 Railway Time Tables Pub- 
 lishing Co., In re . . 80 
 Rainbow v. Juggins . . 247 
 Ralph v. Carrick . . 238 
 Ramsay v. Margrett . 99, 223 
 Randell, In re : Randell v . 
 
 Dixon 48 
 
 Ransome v. Burgess . . 138 
 
xliv 
 
 TABLE OF VASES. 
 
 Bapier v. London Tram- 
 ways Co. ... 327 
 Eatcliffe v. Barnard . 211, 212 
 Bawlinson v. Miller . . 126 
 Bay, In re . . . . 117 
 
 v. Walker . . .308 
 
 Bay's Settled Estates, In re 117 
 Bayner v. Bederiaktiebola- 
 
 get Condor ... 65 
 Bead v. Dupper . . . 177 
 Beddaway v. Banham . 327 
 Bedhead v. Westwood . 221 
 Bees v. De Bernardy . . 72 
 Beeve v. Berridge . 312, 315 
 Beg. v. Brittleton . . 102 
 
 „. Gyngall . . 92, 93, 94 
 
 v. Hopkins ... 57 
 
 v. Whitmarsh . . 42 
 
 Beid v. Eeid (25 B. 469) . 159 
 
 v. (31 Ch. D. 402) 
 
 96 et seq- 
 Beiner v. Marquis of Salis- 
 bury .... 5 
 Renalsv.Cowlishaw 307,308,310 
 
 Bendall v. Blair . 
 Reuter v. Sala . 
 Beynell v. Sprye 
 Bhodes v. Bate . 
 v. Moules 
 
 . 53 
 . 318 
 . 296 
 76, 77, 79 
 . 17 
 . 263 
 
 Bich v. Cockell . 
 Bichards, In re : Humber v. 
 
 Eichards. . . 214,215 
 , In re : Shenstone 
 
 v. Brock ... 25 
 
 v , Delbridge 22 et seq., 32 
 
 v. Bevitt . 307, 310 
 
 v. Syms . . 34 
 
 Bichardson, In re . 48, 51 
 
 v. Feary . 123, 127 
 
 v. Mellish . 303 
 
 Board 
 
 • v. Methley School 
 
 ■ v. Bichardson 
 
 ■ v. Smith . 
 • v. Younge 
 
 Bicherson, In re 
 Richmond v. White 
 
 328 
 280 
 287 
 209 
 131 
 168 
 
 PACK 
 
 Rioketts v. Bicketts . 106, 151 
 Eiddell v. Errington . . 98 
 Eidler, In re : Bidler v. 
 
 Eidler . . . 55,56,57 
 Bidley, In re : Buckton v, 
 
 Hay ... . 
 Eimington v. Hartley 
 Bivett-Carnac's Will, In re 
 
 Sir J 
 
 Boach v. Trood . 
 Bobb v. Green . 
 Roberts v. Berry 
 Eobertson v. Broadbent 
 Bobinson, In re : Wright v. 
 
 Tugwell 
 v. Governor of the 
 
 107 
 125 
 
 . 116 
 . 159 
 302, 325 
 . 317 
 . 238 
 
 48 
 
 London Hospital 
 
 King & Co. v. 
 
 Lynes 
 
 v. Bett 
 
 v. Butter . 
 
 v, Trevor . 
 
 v. Wheelwright . 
 
 Bobinson's Settlement 
 
 Trusts, In re . 
 Eoche v. Boche . 
 Eochford v. Hackman 
 Eockingham Bailway Co. v. 
 
 Allen .... 
 Eoebuck v. Chadebet . 
 Bogers v. Ingham 80 et seq 
 
 243 
 
 106 
 171 
 240 
 251 
 104 
 
 110 
 
 175 
 
 95 
 
 ■ v. Jones . 
 
 • v. Maddocks 
 
 ■ v. Bice . 
 
 Eolland v. Hart . 
 Bolls v. Pearce . 
 Eooke v. Dawson 
 Boper, In re : Taylor v. Bland 
 
 327 
 123 
 86, 
 295 
 260 
 305 
 
 68 
 315 
 
 32 
 
 51,53 
 
 239 
 
 Boper's Trusts, In re 
 
 138, 139, 
 140 
 
 Bosenberg v. Cook 
 Bosier's Trusts, In re 
 Boss v. Buxton . 
 Bossiter, In re : Bossiter v. 
 Eossiter . 
 
 67 
 252 
 176 
 
 233 
 
 v. Miller . 285 et seq. 
 
TABLE OF GASES. 
 
 xlv 
 
 Both, In re : Goldberger v. 
 
 Both . . . .140 
 Bouse v. Bradford Banking 
 
 Co 248 
 
 Bousillon v. Bousillon 279, 304 
 Boutledge v. Dorril . . 159 
 Bowe v. Gray . . . 123 
 Bowley v. Bowley . . 159 
 Bownson, In re: Field v. 
 
 White . . .165 et seq. 
 Boxburghe v. Cox . . 240 
 Boyle, In re : Boyle v. Hayes 277 
 
 ,Inre . . .278 
 
 Bussell, Ex parte: In re 
 
 Butterworth ... 57 
 , In re : Dorrell v. 
 
 Dorrell . . . 107,274 
 
 v. St. Aubyn . . 267 
 
 v. Watts . . 229 
 
 By an ^.Mutual Tontine, etc., 
 
 Association . . . 326 
 Bymer, In re: Kymer v. 
 Stansfleld ... 50 
 
 S. 
 
 S.'s Settlement, In re . . 108 
 Sackville v. Smythe . . 233 
 Sackville-West v. Viscount 
 
 Holmesdale . . 34 et seq. 
 Sadler v. Great Western 
 EailwayCo. . . .327 
 
 v. Pratt . . .157 
 
 Saint v. Pilley . . .229 
 Salmon, In re . . 151 
 
 v. Cutts ... 79 
 
 Salomons v. Knight . . 326 
 Salt, In re . . . . 117 
 
 , In re : Brothwood v. 
 
 Keeling . . . .237 
 
 v. Cooper . . 329 et seq. 
 
 v. Marquis of North- 
 ampton . . .73, 224 
 Salting, Ex parte: In re 
 
 Stratton ... 241 
 
 Sandbach and Edmondson's 
 Contract, In re . 283, 284 
 
 PAGE 
 
 Sands to Thompson . . 208 
 Sanders' Trusts, In re . 61 
 
 Sanger v. Sanger . . 106 
 Sangster v. Cochrane . . 215 
 Sanguinetti v. Stuckey 
 Banking Co. ([1895] 1 Ch. 
 176) . . . .58 
 
 v. Stuckey 
 
 Banking Co. ([1896] 1 Ch. 
 502) . . . .200 
 Saul v. Pattinson . 137, 160 
 Saunders v. Dunman . . 250 
 Saunders - Davies, In re : 
 Saunders-Davies v. Saun- 
 ders-Davies . . . 238 
 Savage, In re . . . 335 
 Savery v. Enfield Local 
 Board . . . .300 
 
 v.King ... 78 
 
 Savill v. Savill . . .260 
 Saxon Life Assurance 
 
 Society, In re . . . 81 
 Saxton v. Bartley . . 123 
 Sayers v. Collyer . . 310 
 Sayre v. Hughes . . 7 
 Scales v. Collins . . .241 
 Scanlan, In re, Infants 92 
 Schjott v. Scbjott . . 335 
 Scholefield v. Lockwood . 175 
 Scholes & Sons, In re . . 335 
 Scholey v. Peck . . 176, 177 
 Schweder's Estate, In re . 236 
 Scott, In re : Scott v. Han- 
 bury .... 30 
 and Alvarez's Con- 
 tract, In re . 67, 87, 283 
 
 v. Morley ... 99 
 
 Scottish Economic Assur- 
 ance Society, Ex parte . 254 
 Scotto v. Heritage . . 195 
 Seagram v. Tuck . . 333 
 Seal v. Seal . . 38 
 
 Seaton v. Seaton . 261, 263 
 Sebright's Settled Estates, 
 
 In re . . . 120 
 
 Sedgwick v. Thomas . . 107 
 Selwyn v. Garfit . . 315 
 
 a 
 
xlvi 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Seroka v. Kattenburg . . 100 
 Severn and Wye, etc., Co., 
 
 In re . . . 11, 189 
 Seyton, In re . . . 102 
 Shanley v. Harvey . . 34 
 Shardlow v. Ootterell . 287 
 
 Sharp v. Lush . . .238 
 Sharpe, In re . . 189 
 
 v. Poy . . .315 
 
 Shaw, In re: Tucket u.Shaw 239 
 
 v. Benson ... 43 
 
 v. Neale . . .177 
 
 Sheffield, etc., Society v. 
 
 Aizlewood 
 Sheldon, In re : Nixon v. 
 
 Sheldon .... 
 "Shelley v. Shelley 
 v. Westbrook . 
 
 149 
 
 135 
 37 
 94 
 36 
 37 
 194 
 331 
 
 Shelley's Case . 
 Shelton v. Watson 
 Shepard v. Jones 
 Shephard, In re . 
 Shield, In re : Pethybridge 
 
 v. Burrow ... 25 
 Shilleto v. Hobson . . 24 
 Shrewsbury (Countess of) v. 
 
 Earl of Shrewsbury 226, 227 
 Shropshire Union Bail ways 
 
 and Canal Co. v. Beg. 
 Shurmur v. Sedgwick : 
 
 Crossfield v. Shurmur 
 Siddall, In re 
 Silvester, In re . 
 Simmonds, Ex parte 
 Simons v. McAdam 
 Simpson v. Denny 
 v. Lister 
 
 214 
 
 Sinclair v. James 
 Sisson v. Giles . 
 Skidmore v. Bradford 
 Skinner v. Orde. 
 Skinner & Co. v. Shew & Co 
 
 . 28 
 
 . 43 
 
 248 
 
 82 
 
 . 195 
 
 . 126 
 
 . 133 
 
 . 124 
 
 131, 261 
 
 . 10 
 
 Slater's Trusts . 
 Sleeman v. Wilson 
 Slevin, In re: Slevin 
 Hepburn 
 
 93 
 327 
 327 
 
 73 
 93 
 
 49 
 
 PAGE 
 
 26 
 
 Sloane v. Cadogan 
 
 Small v. National Provincial 
 
 Bank of England . 
 Smart v. Smart . 
 Smethurst v. Hastings 
 Smith, In re: Arnold v. 
 
 Smith . . . 139,140 
 , In re: Hands v. 
 
 Andrews 
 , In re : Hannington 
 
 221 
 
 94 
 
 149 
 
 186 
 
 v. True ; Giles v. True 
 — , In re : Smith v. 
 
 Thompson 
 
 v. Anderson 
 
 v. Cherril . 
 
 v. Cowell . 
 
 v. Davies . 
 
 v. Day 
 
 v. Gronow 
 
 v. Lancaster 
 
 v. Lucas . 
 
 v. Olding . 
 
 v. Peters 
 
 v. Smith , 
 
 v. Winter 
 
 Smith's Estate, 
 
 233 
 
 140 
 39 
 56 
 331 
 199 
 323 
 
 . 117 
 259, 261, 263 
 . 200 
 . 287 
 . 34 
 . 175 
 
 In re : 
 
 Clements v. Ward . 
 Settled Estates, In 
 
 100 
 
 Smithett v. Hesketh 
 
 v. Kay 
 
 . 121 
 
 200, 201, 
 
 204 
 
 . 73 
 
 Snell, In re . . . 178 
 Snellgrove v. Baily . . 34 
 Snow v. Boycott . . 228 
 
 Snowdon, Ex parte: In re 
 
 Snowdon. . . . 246 
 Soar v. Ashwell . . 17, 18 
 Soare v. Forster . . 7 
 
 Solicitor, In re a . . 186 
 Solomon v. Solomon . . 232 
 Somers-Cocks, In re . . 243 
 Somerset, In re . . 191 
 
 (Duke of), In re 
 
 100,151,152 
 Somerville, In re . . 280 
 Somes, In re . . 108, 160 
 
TABLE OF CASES. 
 
 xlvii 
 
 PAGE 
 
 Soper v. Arnold . . .67 
 Soutar's Policy Trust, In re 102 
 South, In re . . .330 
 South Wales Atlantic Steam- 
 ship Co., In re . . 43 
 Southall v. British Mutual, 
 
 etc., Soc. ... 79 
 Sovereign Life Assurance 
 
 Co., In re . . .254 
 Sparks v. Liverpool Water- 
 works Co. . . .318 
 Speight v. Gaunt . 145 et seq. 
 Spence, In re . . .92 
 Spencer, In re : Spencer v. 
 Hart .... 16 
 
 In re: Thomas v. 
 
 Spencer . . . 106 
 
 v. Clarke . . 254 
 
 v. Topham . . 76 
 
 Spencer's Case . . . 307 
 Spicer v. Martin . . 309 
 
 Spiller v. Maude . . 51 
 Spurrier v. Hancock . .317 
 Squire v. Pardoe . . 194 
 Stacey v. Elph ... 77 
 Stamford (Earl of), In re: 
 
 Payne v. Stamford 29, 116 
 Stamford's (Lord) Settled 
 
 Estate, In re . . . 117 
 Stammers v. Elliott . . 169 
 Standard Manufacturing Co., 
 
 In re . . . . 221 
 Standing v. Bowring . . 9 
 Stanes v. Parker . . 78 
 
 Staniar v. Evans ; Evans v. 
 
 Staniar .... 89 
 Stannard v. St. Giles' Vestry 328 
 Stapilton v. Stapilton . 295 
 Stead v. Mellor ... 20 
 Steed v. Preece . . 127 et seq. 
 Steel v. Dixon . 244 et seq., 250 
 Stenning, In re . . 181, 183 
 Stephens v. Green . . 215 
 Stevens, In re . . . 274 
 v. Mid-Hants Bail- 
 way Co. . . . 228 
 v. Kobertson . . 150 
 
 Stevens v. Trevor-Garrick . 98 
 Stevenson v. Marson . . 267 
 Stewart v. Smith . . 319 
 Stewart's Case . . . 318 
 Stock v. McAvoy . . 10 
 Stogdon v. Lee . . . 105 
 Stokes, In re: Parsons v. 
 
 Miller . . . .237 
 Stone v. Godfrey . 81, 87 
 Stonor's Trusts, In re . 98 
 
 Stott v. Milne . . 148, 150, 
 160 et seq., 192, 193, 249, 250 
 Stourton v. Stourton . 91, 94 
 Strafford (Earl of) and 
 
 Maples, In re . . . 120 
 Strangways, In re . . 116 
 Stratheden and Campbell, 
 
 In re . . . 48, 51 
 Streatfield v. Streatfield . 257 
 Street v. Union Bank of 
 
 Spain and England 
 Strong v. Carlyle Press 
 v. Stringer 
 
 Stroud v. Norman 
 
 Strugnell v. Strugnell 
 
 Strutt v. Tippett 
 
 Stubbs, Joshua, Limited, 
 In re 
 
 Sudbury and Pointon's Es- 
 tates, In re . 
 
 Suffield and Watts, In re: 
 Ex parte Brown . 175, 
 
 Surman v. Wharton . 
 
 321 
 
 280 
 299 
 159 
 126 
 250 
 
 331 
 
 117 
 
 177 
 100 
 
 Sutton v. Sutton 
 
 205 et seq. 
 
 Sutton's Trusts, In re 
 Sutherland (Duke of) v. 
 Heathcote 
 
 (Dow. Duchess 
 
 of) v. Sutherland (Duke 
 of). . . . 117, 
 Swain, In re 
 
 v. Ayres . 
 
 Swaine v. Denby 
 Swaisland v. Dearsley 
 Sweetapple v. Bindon 
 Swinburne, In re: Swin- 
 burne v Pitt . 
 
 253 
 
 90 
 
 120 
 191 
 299 
 
 125 
 88 
 37 
 
 263 
 
xlviii 
 
 TABLE OF GASES. 
 
 Swinfen v. Swinfen 
 Syer v. Gladstone 
 Sykes, In re 
 
 v. Beadon 
 
 v. Schofield 
 
 PAGE 
 
 . 296 
 
 . 263 
 
 . 27 
 
 . 41 
 
 125, 126 
 
 . 274 
 
 . 324 
 
 Symes v. Symes 
 Symon v. Hallett 
 Symons, In re : Luke v. 
 Tonkin . . . .277 
 
 Tabor v. Brooks . . 138 
 
 Talbot v. Prere . . .166 
 
 v. Shrewsbury (E. of) 95 
 
 v. Staniforth . .296 
 
 Tamplin v. James . . 87 
 Tancred v. Delagoa Bay and 
 
 East Africa Bail way Co. 223, 
 253 
 Tanqueray - Willaume and 
 
 Landau, In re 139, 237, 283 
 Tasker v. Tasker . 99, 340 
 Tassell v. Smith . . 216 
 
 Tate v. Hilbert ... 33 
 
 v. Williamson . . 76 
 
 Taylor, In re (4 Oh. D. 157) 93 
 
 In re (56 L. J. Ch. 
 
 519) .... 34 
 
 In re : Taylor v. 
 
 Wade (1894, 1 Ch. 671) 169 
 
 , Stileman, and Un- 
 derwood, In re . . 178 
 
 v. Blakelook . . 184 
 
 v. Clark . . .134 
 
 v, Coenen . . 56 
 
 v. Eckersley . 333, 334 
 
 v. Grange . .124 
 
 v . Johnston . . 78 
 
 v. Neate . . 333 
 
 v. Russell . 213, 214 
 
 v. Taylor . . 266 
 
 Teague's Settlement, In re 107 
 Teasdale v. Braithwaite . 28 
 Teevan v. Smith . . 201 
 Temperton v. Russell . 324 
 
 Tempest v. Lord Camoys 
 (21 Ch. D. 571) . 137, 140< 
 
 (21 Ch. D. 576 n.) . 
 
 140 
 
 (58 L. T. 221) . 29, 143 
 Tennant v. Trenchard . 77 
 Terry and White's Contract, 
 
 In re . . - . 283. 
 Thatched House Case . 212 
 Theed v. Debenham . . 326 
 Thomas, H., In re . . 340* 
 , In re : Ex parte 
 
 Poppleton ... 43- 
 , In re: Wood v. 
 
 Thomas . . . .135 
 
 v. Brown . 67 
 
 v. Palin . . . 336 
 
 Thompson, Ex parte . . 107 
 
 v. Fisher . . 37 
 
 v. Hudson 64, 66- 
 
 v. Ringer . . 282 
 
 Thomson v. Weems . . 255 
 Thorndike v. Hunt . . 184 
 Thome v. Cann . . 227, 228 
 
 v. Heard 187 et seq., 315 
 
 v. Nine Reefs . . 331 
 
 Thornley v. Thornley . 99 
 
 Thornton v. Bright . . 157 
 Thorpe, In re : Vipont v. 
 
 Badcliffe 
 v. Brumfitt 
 
 183 
 327 
 134 
 
 Thursby v. Thursby . 
 Thynne (Lady Edward) v. 
 Earl and Countess of 
 Glengall . 266, 267, 268 
 
 v. Sari . . . 200 
 
 Tickner v. Old . . 134, 149 
 Tierney v. Wood . . 30 
 Tilt, In re . . . .50 
 Tillett v. Nixon . . . 332 
 Tilley v. Thomas . 316 et seq. 
 Tinnuchi v. Smart . . 186 
 Tippett's and Newbould's 
 
 Contract, In re . 106, 284 
 Todd v. Moorhouse . 163, 250 
 Toller v, Carteret . . 4 
 
TABLE OF CASES. 
 
 xlix 
 
 Tomkins v. Colthurst 
 Tomlin v. Luce . 
 Topham v. Booth 
 
 v. Portland 
 
 Tottenham v. Green 
 Toulmin v. Steere 
 Townend v. Toker 
 Tredwell, In re . 
 Trego v. Hunt 
 
 PAGE 
 
 . 237 
 
 . 204 
 
 . 208 
 
 157, 159 
 
 . 70 
 
 226, 228 
 
 . 28 
 
 . 259 
 
 289, 300 et seq., 
 
 325 
 
 Trestrail v. Mason . . 232 
 
 Trevor v. Hutchins . . 168 
 
 v. Trevor . . 37 
 
 Trimmer v. Bayne . . 240 
 Trollope v. London Build- 
 ing, etc., Federation . 326 
 Trott v. Buchanan 235 et seq., 
 
 241 
 Trowell v. Shenton . . 290 
 Truman & Co. v. Redgrave 332 
 Tuck v. Priester . . 325 
 
 Tucker, In re: Tucker v. 
 Tucker . . . 154, 191 
 
 7 
 
 v. Burrow 
 
 v. New Brunswick 
 
 Trading Co. of London 
 v. Vowles 
 
 323 
 310 
 
 120 
 200 
 
 102 
 
 Tucker's Settled Estates, In 
 
 re 
 
 Tufdnell v. Nicholls . 
 Tuff, In re : Ex parte Not- 
 tingham . . . . 
 Tulk v. Moxhay . 306, 307, 308 
 Tullett v. Armstrong . . 105 
 Turner v. Collins . . 78 
 
 v. Green . . 89 
 
 v. Hancock 148, 161, 192 
 
 v. Morgan . . 122 
 
 v. Turner . . 87 
 
 Turner's Settled Estates, In 
 
 re : . . . 157,159 
 Tussaud v. Tussaud 258, 264 et seq. 
 Tweedie v. Miles . . 283 
 Twistleton v. Griffith . 74 
 
 Twynam v. Porter . 175, 176 
 Twyne's Case ... 58 
 Tyars v. Allsop ... 79 
 
 Tyler, In re : Tyler v. Tyler 
 
 48, 51 
 
 v. Yates ... 73 
 
 330, 332 
 . 157 
 
 Tyrrel v. Painton 
 Tyssen, In re 
 
 u. 
 
 Union Bank v. Munster . 204 
 
 Union Bank of London v. 
 Ingram . . . 202 et seq. 
 
 United KingdomLife Assur- 
 ance Co., In re . . 252 
 
 United Telephone Co. v. 
 Dale . . . .323 
 
 Unsworth, In re . . 73 
 
 Vane v. Lord Barnard . 109 
 Vansittart, In re : Ex parte 
 
 Brown . . . 56, 99 
 Vardon's Trusts, In re 74, 106, 
 131, 256 et seq. 
 Vaughan, In re : Vaughan 
 
 ■o. Thomas ... 51 
 
 v. Vanderstegen . 102 
 
 Veal v. Veal ... 32 
 Venn v. Furze's Contract, 
 
 In re . . . 139,283 
 Verity v. Wilde . . .177 
 Vernon v. Brown . . 235 
 Vickers, In re . . 266, 268 
 Vincent, In re : Parham v. 
 
 Vincent. . . .278 
 Vine v. Ealeigh . . 116, 274 
 Vint». Padget . . 216,217 
 Violet Nevin, an Infant, In 
 
 re . . . . 91, 94 
 Vipont v. Butler . . 172 
 Von Joel v. Hornsey . . 324 
 Vowles, In re : O'Donoghue 
 
 v. Vowles . . .280 
 
TABLE OF CASES. 
 
 W. 
 
 Wade v. Wilson 
 Wadsworth, In re : Rhodes 
 
 v. Sugden 
 Waite v. Bingley 
 
 v. Morland 
 
 Walhampton Estate, In 
 
 PAGE 
 
 200 
 
 176 
 124 
 105 
 
 217 
 
 re . 
 Walker v. Bradford Old 
 
 Bank .... 26 
 , In re : Sheffield 
 
 Bank v. Clayton . 149, 245 
 , In re : Walker v. 
 
 Walker . . . .186 
 
 v. Mottram . . 302 
 
 v. Smith . . 77 
 
 Walker's Settled Estates, 
 
 In re . . . . 120 
 Wallace v. Greenwood 125, 130 
 
 Ex 
 
 Waller v. Dalt 
 Wallingford v. 
 
 ciety 
 Wallis, In re 
 
 Lickorish 
 
 v. Day . 
 
 v. Smith 
 
 Wallwyn v. Coutts 
 Walmsley v. Mundy 
 Walsh v. Lonsdale 
 Walter v. Selfe . 
 
 v. Steinkopff . 
 
 Walters v. Walters . 
 
 i». Woodbridge 
 
 Ward v. Baugh . 
 
 v. Bryne . 
 
 v. Duncombe . 
 
 o. Monaghan . 
 
 v. Turner . 
 
 Warde v. Warde 
 Warden v. Jones 
 Ware v. Lord Egmont 
 
 v. Gardner 
 
 Warner v. Baynes 
 
 v. Jacob . 
 
 Waring v. Waring 
 Warren, In re . 
 
 . 73 
 Mutual So- 
 
 . 64 
 parte 
 
 . 193 
 
 . 304, 305 
 
 63, 70 
 
 . 59 
 
 . 337 
 
 . 297 et seq. 
 
 . 327 
 
 . 328 
 
 . 168 
 
 163, 164 
 
 . 260 
 
 . 304 
 
 . 215 
 
 . 65 
 
 34 
 
 . 93 
 
 290, 291 
 
 . 314 
 
 . 57 
 
 . 122 
 
 . 204 
 
 . 149 
 
 . 277 
 
 PAGB 
 
 Warren's Settlements, In re 
 
 104 et seq. 
 Wassell v. Leggatt . 135, 190- 
 Waterer v. Waterer . . 12& 
 Waterhouse v. Waterhouse 324 
 Wathen v. Smith . . 270' 
 Watson, In re . - • 169' 
 Watson, ;ln re : Cox v. 
 
 Watson . . - 274 
 
 — — , In re, Ex parte 
 
 Official Receiver . . 221 
 Watt v. Creyke . . . 15& 
 
 v. Evans . . .291 
 
 Watts, In re : Smith v. 
 
 Watts. . . 164,193 
 
 Waugh's Trusts, In re . 251 
 Wavell v. Mitchell . . 199 
 Wayman, In re . . . 173- 
 Wayne's Merthyr Co. v. 
 
 Badford & Co. . . 338. 
 Weall, In re : Andrews v. 
 Weall . . 147,163,164 
 
 v. Rice . . 266,267 
 
 Weaver, In re . . 137, 138 
 Webb, In re : Lambert v. 
 Still . . . .173 
 
 v. Sadler . . .158 
 
 v. Lord Shaftesbury 262. 
 
 v. Smith . 239 et seq. 
 
 Webb's Policy, In re . . 252: 
 Webber, In re : Gribble v. 
 
 Webber. . . .23a 
 Webster v. British Empire 
 Mutual Life Assurance 
 
 Co 253 
 
 v. Cooke . 72, 73 
 
 Wegg Prosser v. Evans 229, 247 
 Welby v. Welby . . 262 
 Weldon v. Winslow . . 97 
 Weller v. Ker . . .136 
 Wellesleyv. Wellesley . 93> 
 v. Earl of Morning- 
 ton 158- 
 
 Wells, In re . . 168, 331 
 Welman v. Welman . . 27 
 Wenham, In re . . . 166. 
 Wenman v. Lyon & Co. . 221 
 
TABLE OF GASES. 
 
 li 
 
 West Devon Great Consols 
 Mine, In re . 
 
 West London Commercial 
 Bank v. Reliance, etc., 
 Society .... 
 
 Westacott v. Bevan . 
 
 Westbery v. Meredith 
 
 Westby v. Westby 
 
 Western v. Davidson . 
 
 v. Macdermott 
 
 Westhead v. Biley 
 
 Weston v. Levy . 
 
 v. Savage 
 
 Whaley v. Bagnel 
 
 Wharton v. Masterman 
 
 v. May 
 
 Wheatley, In re. . 259, 
 
 Wheeler v. Le Marchant . 
 
 Wheelton v. Hardisty 
 
 Wheelwright v. Walker 
 
 Whistler, In re . 
 
 336 
 
 188 
 176 
 195 
 295 
 203 
 310 
 332 
 333 
 318 
 290 
 53 
 73 
 261 
 339 
 255 
 118 
 283 
 
 v. Webster 262, 263 
 
 Whitaker, In re : Christian 
 
 v. Whitaker . . 25, 98 
 White, In re : White v. 
 White . . . 49,51 
 
 and Smith's Contract, 
 
 In re . . . 283,312 
 
 v. Carter ... 37 
 
 v. Hillacre . . 217 
 
 v. White (15 Eq. 247) 89 
 
 v. (22 Ch. D. 
 
 555) . . . .263 
 White's Trusts, In re . 48 
 
 Whitecomb v. Jacob 180, 182 
 Whitehouse, In re : White- 
 house v. Edwards . . 10 
 Whiteley, In re : Whiteley 
 
 v. Learoyd 
 v. Edwards 
 
 Whitham v. Kershaw 
 Whiting v. Burke 
 Whitley v. Challis 
 Whitney v. Smith 
 Whittaker v. Howe 
 
 v. Kershaw 98, 99, 163 
 
 Whitwell, In re . . . 259 
 
 263 
 101 
 113 
 248 
 332 
 171 
 304 
 
 Whitwood Chemical 
 
 v. Hardman . 
 Wigfield v. Potter 
 Wigram v. Buckley 
 Wilder v. Pigott 
 Wilkes v. Collin 
 Wilkins, In re : Wilkins v. 
 
 Botherham 
 Wilkinson v. Joberns . 
 Williams, I., In re : Green v. 
 
 Burgess .... 
 
 v. Allen 
 
 v. Bailey 
 
 v. Brisco 
 
 v. Edwards . 
 
 v. Games . 
 
 v. Jenkins . 
 
 — • v. Kershaw 
 
 v. Mayne . 
 
 v. Williams (32 B. 
 
 PAGE 
 
 Co. 
 
 . 326 
 . 43 
 26, 215 
 . 261 
 
 370) 
 
 229 
 
 280 
 124 
 
 . 236 
 
 . 195 
 
 247, 261 
 
 . 289 
 
 . 317 
 
 . 123 
 
 . 115 
 
 . 243 
 
 . 261 
 
 10 
 
 2 Ch. 294) 
 v. ■ 
 
 -(L.B. 
 
 56, 293 et seq. 
 
 — (17 
 
 . 313 
 200 
 190 
 125 
 
 Ch. D. 443) . 
 
 Williamson v. Burrage 
 
 Willis v. Howe . 
 
 v. Willis . 
 
 Willmott v. Barber . . 86 
 
 Willoughbyv.Middleton 257,261 
 . 243 
 . 291 
 . 66 
 
 Wills v. Bourne . 
 
 v. Stradling 
 
 Willson v. Love . 
 
 Wilson, In re : Alexander v. 
 Calder .... 
 
 , In re : Attorney- 
 General v. Woodall 
 
 , In re : Wilson v. 
 
 Holloway 
 and Stevens' 
 
 277 
 
 279 
 
 130 
 
 Con- 
 
 tract, In re 
 
 v. Barnes 
 
 v. Lord Bury 
 
 v. Church 
 
 v. Coxwell 
 
 v. Bound 
 
 v. Thornbury 
 
 49, 
 
 284 
 ,51 
 . 16 
 . 42 
 166, 168 
 . 176 
 . 262 
 
lii 
 
 TABLE OF CASES. 
 
 "Wilson v. Lord J. Townsend 262 
 
 v. Turner 138, 139, 140 
 
 v. West Hartlepool 
 
 Railway Co. . . . 292 
 "Wilton v. Hill . . 104, 107 
 Wimbledon Local Board v. 
 Croydon Eural Sanitary 
 Authority . . .323 
 Winchilsea's(Earlof) Policy 
 
 Trusts . . . 163, 250 
 "Winn v. Bull . 287 
 
 Wisden v. Wisden 232 
 
 "Wise, In re . . 274 
 
 v. Piper . . 39 
 
 Withy v. Cottle . 317 
 
 "Witt v. Amis . . 34 
 
 "Wollaston v. King . . 263 
 "Wolmershausen v. Gullick 247 
 "Woodhouse v. Walker . 113 
 Wooldridge v. Norris . . 247 
 Woolley v. Colman 203 
 
 Woolridge v. Woolridge . 158 
 Wolverhampton, etc., Bail- 
 way Co. v. L. & N. W. 
 Ely. Co. . . 326 
 
 Wood, In re . . 129 
 
 v. Gregory . . 126 
 
 Woodgate v. Godfrey . 221 
 
 Woodin, In re . . 272, 273 
 Worral v. Harford . 177 
 
 PAGE 
 
 Worrall v. Johnson . . 177 
 Worthington v. Morgan . 212 
 Wray v. Kemp . . . 335 
 Wright v. Horton . 11 et seq. 
 
 v. Howard . . 318 
 
 v. Proud . . 78 
 
 v. Vanderplank . 78 
 
 v. Wright . . 105 
 
 Wright's Trustees and 
 
 Marshall, In re . . 283 
 Wyche, In re . . .78 
 Wylie, In re . . 98, 100 
 
 Y. 
 
 Yarrow, In re . . 221 
 
 Yates, In re: Batchelor v. 
 Yates . . . .221 
 
 Yeilding and Westbrook, In 
 re 283 
 
 Yorkshire Banking Co. v. 
 Mullan . . . .333 
 
 Yorkshire Waggon Co. v. 
 Maclure. . . .222 
 
 Young, Ex parte : In re 
 Kitchin . . . .247 
 
 and Harston's Con- 
 tract, In re . . 89, 284 
 
 v. Peachy . . 7 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 SI Hen. VIII. c. 1 122 
 
 32 Hen. VIII. c. 32 . ... 122 
 
 13 Eliz. c. 5 (Creditors) . . 54, 55 
 
 27 Eliz. c. 4 (Purchasers) . 55, 56 
 
 43 Eliz. c. 4 (Charities) . ... . 51 
 
 21 Jac. I. c. 16 (Limitation Act, 1623) . . . 190 
 12 Car. II. c. 24, ss. 8-10 (Feudal Tenures) .... 93 
 
 22 & 23 Car. II. o. 10 (Statute of Distribution) . . .301 
 29 Car. II. c. 3 (Statute of Frauds) .... 288,290,291 
 
 ■ s. 4 ,, 165, 166, 286, 290, 292 
 
 -s. 7 „ ... 23,30 
 
 • 8.8 ,. . . 
 
 6, 30, 292 
 . 30 
 
 4 Geo. II. c. 28 (Bent Distress) . . . 67 
 
 14 Geo. III. c. 48 . . 254 
 
 •36 Geo. III. c. 52 ... 95 
 
 39 & 40 Geo. IIL c. 98 (Thellusson Act) . . . 53,116,274 
 11 Geo. IV. & 1 Wm. IV. c. 46 (Illusory Appointments Act) . 159 
 3 & 4 Wm. IV. c. 27, s. 26 (Beat Property Limitation Act, 1833) 190 
 
 ■ s. 34 „ „ „ 208,209 
 
 • s. 36 „ „ „ 122 
 
 3 & 4 Wm. IV. c. 42, ss. 3-5 „ „ „ 206 
 
 3 & 4 Wm. IV. c. 74 (Fines and Becoveries Act, 1833) . . 89 
 3 & 4 Wm. IV. c. 104 (Administration) . . . .243 
 
 7 Wm. IV. & 1 Vict. c. 28 (Beat Property Limitation Act, 
 
 1837) . 
 
 1 Vict. c. 26, s. 7 ( Wills Act, 1837) . 
 
 • s. 24 „ . 
 
 s. 27 . . 
 
 2&3 Vict, c 54: (Talfourd's Act) 
 
 4 & 5 Vict, c 35, s. 85 (Copyhold Act, 1841) . 
 
 5 & 6 Vict. c. 45 (Copyright Act, 1843) . 
 •6 & 7 Vict. c. 73, s. 39 (Solicitor's Act, 1843) . 
 7 & 8 Vict. c. i5 (Non- Conformists' Chapel Act, 1844) . 50 
 
 206 
 
 93 
 
 100 
 
 131 
 
 93 
 
 122 
 
 321 
 
 17 
 
liv TABLE OF STATUTES. 
 
 PAGE 
 
 8 Vict. o. 18 {Land Clauses Consolidation Act, 1845) 95, 110, 116, 
 
 130, 310 
 10 & 11 Vict. c. 17 (Waterworks Clauses Act, 1847) . . .328 
 10 & 11 Vict. c. 96 (Trustee Belief Act, 1847) ... 95, 252 
 12 & 13 Vict. c. 74 95,252- 
 
 12 & 13 Vict, c 103 (The Poor Law Amendment Act, 1849) . 167 
 
 13 & 14 Vict. c. 60 (Trustee Act, 1850) 12ft 
 
 14 & 15 Vict. c. 99, s. 6 (The Evidence Act, 1851) . . .337 
 
 15 & 16 Vict. c. 76 (Common Law Procedure Act, 1852) . . 67 
 
 15 & 16 Vict. c. 86 (CJiancery Procedure Act, 1852) . . .203 
 
 16 & 17 Vict. c. 137 (Charitable Trusts Act, 1853) . . 51, 52, 53 
 
 17 & 18 Vict. c. 36, s. 1 220 
 
 17 & 18 Vict. c. 113 (Real Estate Charges Act, 1854) 230, 231, 236 
 
 243 
 
 17 & 18 Vict. c. 125 (Common Law Procedure Act, 1854) . 337 
 
 18 & 19 Vict. c. 43 (Infant Settlements Act, 1855) . . 95, 256 
 18&19 Vict. c. 67 (Bills of Exchange Act, 1855) . . .340 
 
 18 & 19 Vict. c. 124 (Charitable Trusts Act, 1855) ... 52 
 
 19 & 20 Vict. c. 97, s. 5 (Mercantile Law Amendment Act, 1856) 246 
 
 20 & 21 Vict. c. 57 (Malms' Act) 259 
 
 21 & 22 Vict. c. 56 (Confirmation of Executors (Scotland) Act, 
 
 1858) 2 
 
 23 & 24 Vict. c. 126, s. 1 (Common Law Procedure Act, 1860) . 68 
 23 & 24 Vict. c. 127, s. 28 (Solicitors Act, 1860) . . 174 et seq. 
 
 23 & 24 Vict. c. 136 (Charitable Trusts) 52 
 
 24 & 25 Vict. c. 96, s. 80 (Larceny Act) 186 
 
 25 & 26 Vict. c. 89, s. 4 (Companies Act, 1862) . . 41, 43- 
 
 s.43 „ „ ... 11 
 
 s. 165 „ „ ... 79 
 
 27 & 28 Vict. c. 112 (Judgments Act, 1864) . . . .330- 
 
 27 & 28 Vict. c. 114, s. 34 113 
 
 30 & 31 Vict. c. 59 (Statute Law Revision Act) ... 67 
 30 & 31 Vict. c. 69 (Real Estate Charges Act, 1867) 230, 231, 236, 
 
 243 
 
 30 & 31 Vict. c. 144 (Policies of Assurance Act, 1867) . . 253 
 
 31 Vict. c. 4= (Sale of Reversions Act, 1867) . . . 69,70 
 31 & 32 Vict. c. 40, s. 3 (Partition Act, 1868) 
 
 s - 4 „ „ 
 
 s- 5 
 
 ' S. 7 ,, „ 
 
 31 & 32 Vict. c. 86 (Marine Insurance) . 
 
 32 & 33 Vict. c. 56 
 
 32 & 33 Vict. c. 46 (Hinde Palmer's Act) . 
 32 & 33 Vict. c. 62, s. 4 (Debtors Act, 1869) 
 
 s. 5 ,, „ 
 
 33 & 34 Vict. c. 14 (Naturalisation Act, 1870) 
 
 . 125 
 121, 123, 124, 126 
 . 123- 
 . 126 
 . 253 
 . 52 
 . 166, 243 
 . 182, 186 
 . 99 
 . 33ft 
 . 28 
 
TABLE OF STATUTES. 
 
 lv 
 
 33 & 34 Vict, o 28, s. 8 (Solicitors Act, 1870) . . . .340 
 33 & 34 Vict. c. 35 (Apportionment Act, 1870) . . .274 
 
 33 & 34 Vict. c. 61 (Life Assurance Companies Act, 1870) 254, 255 
 
 33 & 34 Vict. c. 93 (Married Women's Property Act, 1870) 98, 255 
 
 34 & 35 Vict. c. 58 (Life Assurance Companies Act, 1871) . 254 
 
 35 & 36 Vict. c. 24 (Charitable Trustees Incorporation Act, 1872) 51 
 
 35 & 36 Vict. c. 41 (Life Assurance Companies Act, 1872) 254, 255 
 
 36 Vict. c. 12 (Infants Custody Act, 1873) ... 93, 94 
 36 & 37 Vict. c. 66 (Judicature Act, 1873) 298, 299, 317, 334 et seq. 
 
 8.16 „ . . . . 321 
 
 s. 24, sub.-s. 2 (Judicature Act, 1873) . . 90 
 
 s. 25, sub.-s. 3 
 s. 25, sub.-s. 4 
 s. 25, sub.-s. 6 
 
 ■ s. 25, sub.-s. 8 
 s. 25, sub.-s. 10 
 
 • s. 25, sub.-s. 11 
 
 •s. 34 
 
 . 110 
 
 . 228, 229 
 
 . 252, 253 
 
 320, 321, 330 
 
 . 92 
 
 . 92, 196 
 
 52,90,93,122, 
 
 264 
 
 37 & 38 Vict. c. 37 (Powers Law Amendment Act) . 
 37 & 38 Vict. c. 57, s. 1 (Seal Property Limitation Act) . 
 s. i „ „ „ „ 
 
 ■ s - " » >> )i » 
 
 ' s. y „ „ „ „ . 
 
 37 & 38 Vict. c. 62 (Infants' Belief Act, 1874) . 
 
 37 & 38 Vict. c. 78, s. 2 (Vendor and Purchaser Act, 1874) 
 
 ■s. 9 
 
 . 159 
 . 206 
 . 206 
 . 206 
 . 206 
 . 206 
 74, 256 
 . 312 
 
 281,282,283,284 
 . 167 
 . 335 
 . 126 
 . 126 
 . 125, 130' 
 . 123 
 
 113, 115, 120, 121 
 . 274 
 
 38 & 39 Vict. c. 77, s. 10 (Judicature Act, 1875) 
 s. 21 
 
 39 & 40 Vict. c. 17, s. 3 
 
 ■ s. 4 
 
 s. 6 
 
 s. 7 
 
 40 & 41 Vict. c. 18 (Settled Estates Act, 1877) 
 .40 & 41 Vict. c. 33 (Contingent Remainders) 
 
 40 & 41 Vict. c. 34 (Real Estate Charges Act, 1877) 230, 231, 232, 
 
 236, 243 
 
 41 & 42 Vict. c. 31, s. 4 (Bills of Sale Act, 1878) . . . 220' 
 41 & 42 Vict. c. 54, s. 1 (Debtors Act, 1878) . . . .186 
 
 43 & 44 Vict. c. 47, s. 5 (Ground Game Act, 1880) . . .299 
 
 44 & 45 Vict. c. 12, s. 27 (Customs and Inland Revenue Act, 
 
 1881) 238 
 
 s. 38 (2) 33, 239 
 
 44 & 45 Vict. c. 41, s. 5 (Conveyancing Act, 1881) . . 205 
 
 s. 14 „ „ „ 68, 69, 299- 
 
 ; s.15 „ „ „ - . 200,201 
 
Ivi 
 
 TABLE OF STATUTES. 
 
 44 & 45 Vict. c. 41, s. 17 {Conveyancing Act, 1881) 
 ■ s. 19 
 
 -s. 25 
 -s. 31 
 -s. 39 
 
 -s. 42 
 -s. 43 
 -s. 52 
 ■s. 56 
 
 44 & 45 Vict. c. 44 (Solicitors' Remuneration Act, 1881) 
 
 45 & 46 Vict. c. 38 (Settled Land Act, 1882) . 
 
 ■ — ■ s. 25 
 
 ■ s. 28 
 
 • s. 29 
 
 — s. 35 
 
 ■s. 59 
 
 . 218, 219 
 
 . 332 
 
 . 202, 203 
 
 . 283 
 
 . 104 et seq. 
 
 . 114 
 
 271, 273, 274 
 
 . 160 
 
 188 
 
 299 
 
 114-121 
 
 . 113 
 
 . 113 
 
 . 113 
 
 . 114 
 
 . 1L4 
 
 45 & 46 Vict. c. 39, s. 3 (Conveyancing Act, 1882) 312, 313, 315, 316 
 
 8.6 „ ■ ■ ■ 160 
 
 8.12 „ • • - 201 
 
 • s. 13 „ „ . 312,315,316 
 
 45 & 46 Vict. c. 43 (Bills of Sale Act (1878) Amendment Act, 
 
 1882) 220 
 
 45 & 46 Vict. c. 50, ss. 133, 134 (Municipal Corporation Act) . 28 
 45 & 46 Vict. c. 51, s. 8 (Government Annuities Act, 1882) . 29 
 45 & 46 Vict. c. 61, s. 75 (Bills of Exchange Act, 1882) . . 32 
 45 & 46 Vict. c. 75, s. 1 (Married Women's Property Act, 1882) 100, 101 
 
 , 101 
 
 101 
 
 ■s. 2 
 
 ■8.3 
 
 •s. 4 
 ■s. 5 
 
 - ss. 6-10 
 ■ ss. 11, 12 
 ■s. 14 
 •s. 15 
 •s. 17 
 ■s. 18 
 ■s. 19 
 ■s. 21 
 ■s. 22 
 ■s. 24: 
 
 46 & 47 Vict. c. 18 „ „ „ „ 
 
 46 & 47 Vict. c. 36 „ „ 
 
 46 & 47 Vict. c. 52, s. 4 (1) (a) (Bankruptcy Act, 1883) 
 
 fc 4 (1) (g) 
 
 b. 6 (1) (e) 
 
 s. 47 
 
 . 102 
 
 25, 33, 96, 
 
 98, 102 
 
 . 102 
 
 102, 255 
 
 . 100 
 
 100, 106 
 
 98, 337, 340 
 
 28, 102 
 
 98, 103 
 
 7 
 
 98 
 
 102 
 
 52 
 
 52 
 
 62 
 
 09 
 
 62 
 
 56, 58, 62 
 
TABLE OF STATUTES. lvii 
 
 46 & 47 Vict. c. 52, s. 48 {Bankruptcy Act, 1883) 
 
 • b. 55 „ „ . 
 
 8.73(2) „ . . 
 
 ' -s.85 
 
 ■■•125 „ . . 
 
 s. 147 „ „ 
 
 46 & 47 Vict. c. 57, s. 30 {Patents, Designs, and Trade MarJcs 
 
 Act, 1883) 
 
 s. 32 .... . 
 
 62 
 299 
 
 17a 
 
 28 
 
 167 
 
 28 
 
 326 
 327 
 113 
 
 46 & 47 Vict. c. 61 s. 42 {Agricultural Holdings Act, 1883) 
 
 47 & 48 Vict. c. 18 {Settled Land Act, 1884) . . . 115-121 
 
 48 & 49 Vict. c. 69, s. 12 . . . . . . . . 9a 
 
 49 & 50 Vict. c. 27 {Guardianship of Li/ants Act, 1886) . 93, 95 
 
 50 & 51 Vict. c. 30 {Settled Land Act, 1887) . . . 115-121 
 
 50 & 51 Vict. c. 57 {Deeds of Arrangement) ... . .62 
 
 51 & 52 Vict. c. 2, s. 27 {National Debt {Conversion) Act, 
 
 1888) 154 
 
 51 & 52 Vict. c. 42, s. 13 {Mortmain and Charitable Uses Act, 
 
 1888) 51, 54 
 
 51 & 52 Vict. c. 43, s. 67 {County Courts Act, 1888) . . .195 
 51 & 52 Vict. c. 51, s. 5 {Land Charges Registration and Searches 
 
 Act, 1888) 334r 
 
 51 & 52 Vict. c. 59 {Trustee Act, 1888) . ... 188 
 
 ■ • s. 2 „ „ 150 
 
 s. 4 „ , 147 
 
 s. 8 „ „ 189 
 
 52 & 53 Vict. c. 7 {Customs and Inland Bevenue Act, 1889) 238, 239 
 52 & 53 Vict. c. 36 {Settled Land Act, 1889) . . . .115 
 
 52 & 53 Vict. c. 49 {Arbitration Act, 1889) . . .336 
 
 53 Vict. c. 5, s. 123 {Lunacy Act, 1890) 130- 
 
 53 & 54 Vict. c. 24 62 
 
 53 & 54 Vict. c. 39 {Partnership Act, 1890) . . . 129, 33a 
 53 & 54 Vict. c. 44 {Supreme Court of Judicature Act, 1890) . 164 
 
 53 & 54 Vict. c. 63, s. 10 79^ 
 
 53 & 54 Vict. c. 69 {Settled Land Act, 1890) . 115, 116, 118, 119, 
 
 120, 334 
 
 53 & 54 Vict. c. 71, s. 13 {Bankruptcy Act, 1890) . . .299 
 s. 27 „ „ . . . . 186- 
 
 54 Vict. c. 3 {Custody of Children Act, 1891) . . . 92, 95 
 54 & 55 Vict. c. 73 {Mortmain and Charitable Uses Act, 1891) 54 
 54 & 55 Vict. c. 39, ss. 75, 98-100, 104, 117, 118 {Stamp Act, 
 
 1891) 225 
 
 54 & 55 Vict. c. 3 {Custody of Children Act, 1891) . 92, 95 
 
 55 & 56 Vict. c. 13 {Conveyancing and Law of Property Act, 
 
 1892) 68 
 
 55 & 56 Vict. c. 58 {Accumulations Act, 1892) . . . .274 
 
 56 & 57 Vict. c. 21 {Voluntary Conveyances Act, 1893) . . 5& 
 
lviii 
 
 TABLE OF STATUTES. 
 
 56 & 57 Vict. c. 53, s. 1 {Trustee Act) 
 
 s. 2 
 
 b. 3 
 
 s. 5 „ 
 
 s. 8 
 
 s. 9 
 
 ss. 10-13 „ 
 
 s.17 
 
 s. 19 
 
 s. 20-22 „ 
 
 ■ s. 24 
 
 s. 25 
 
 s. 37 
 
 s. 42 
 
 — - — s. 45 
 
 s.47(l)(2)„ 
 
 1, 
 
 PAGE 
 
 . 152, 153 
 
 . 153, 154 
 
 . 154 
 
 . 154 
 
 147, 148, 151 
 
 . 151 
 
 29, 30 
 
 . 150, 188 
 
 154 
 
 29 
 
 162 
 
 126 
 
 29 
 
 95 
 
 151, 152 
 
 118, 119 
 
 56 & 57 Vict. c. 63, ss. 1, 2, 3 {Married Women's Property Act, 
 
 1893) 100,101 
 
 57 & 58 Vict. c. 10 {Trustee Act (1893) Amendment Act, 1894) 154 
 57 & 58 Vict c. 30, s. 2 (1) (c) {Finance Act, 1894) 
 
 ss. 1, 6, 8 „ „ 
 
 s. 9 (6) 
 
 s. 14 (1) 
 
 57 & 58 Vict. c. 35 
 
 58 & 59 Vict. c. 25 {Mortgagees' Legal Costs Act, 1895) 
 
 33 
 
 238 
 
 226 
 
 239 
 
 53 
 
 194, 195 
 
TABLE OF EULES OF SUPREME 
 COURT, 1883. 
 
 0. 
 
 III., 
 
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 6 
 
 0. 
 
 XI. 
 
 
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 XIII 
 
 l' 
 
 3 
 
 0. 
 
 XIV. 
 
 r 
 
 l v . 
 
 0. 
 
 XV. 
 
 
 . 
 
 
 
 r. 
 
 1 
 11 . 
 
 0. 
 
 XVI. 
 
 
 
 r. 
 r. 
 r. 
 
 32 . 
 40 . 
 46 . 
 48 . 
 r. 2 . 
 
 
 
 
 
 
 
 0. 
 
 XVIII., 
 
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 XIX. 
 
 >r 
 
 15 . 
 
 0. 
 
 xxii 
 
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 XXVII. 
 
 r.ll . 
 
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 XXXI. 
 
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 xxxviii., r. 1 
 
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 o. 
 
 LIV. 
 
 A 
 
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 5 
 
 
 
 
 
 
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 16 . 
 r. 15 . 
 
 
 
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 LXV 
 
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 PAGE 
 
 197, 340 
 5,279 
 . 199 
 . 340 
 . 199 
 . 277 
 . 278 
 . 278 
 . 126 
 . 278 
 
 278, 279 
 . 200 
 
 209, 292 
 . 153 
 . 199 
 
 337, 340 
 . 121 
 . 203 
 . 279 
 
 279, 340 
 163, 164, 193 
 
 . 205 
 . 279 
 . 275 
 
 278, 279, 284 
 . 278 
 
 198, 205, 279 
 
 198, 199 
 . 279 
 
 143, 276, 277 
 . 276 
 . 278 
 . 279 
 
 279, 331, 333 
 . 333 
 
 279, 283 
 . 276 
 . 279 
 
LEADING CASES 
 
 IN 
 
 MODERN" EQUITY. 
 
 Equity acts in personam. 
 
 EWING v. ORR EWING. 
 
 (9 App. Cas. 34.) 
 
 Equity acts in personam, that is to say, the Court has Principle 
 a personal jurisdiction to enforce contracts and trusts. 
 
 A testator domiciled in Scotland left personal estate Summary 
 in Scotland over £400,000 and in England about £25,000, ° f fa ° ts " 
 and heritable property in Scotland, and he made his will 
 in Scotch form and appointed six persons (most of whom 
 resided in Scotland) to be his executors and trustees. 
 The executors obtained confirmation of the will in Scot- 
 land which was sealed by the English Court. 
 
 An infant legatee resident in England brought an 
 action for the administration of the estate against the 
 executor-trustees : the Scotch trustees entered an ap- 
 pearance without protest ; but before trial all the English 
 personalty was removed into Scotland. The House of 
 Lords held (affirming the decision of the Court of Appeal) 
 that the English Court had jurisdiction as to the whole 
 estate. 
 
 B 
 
EQUITY ACTS 13 PERSONAM. 
 
 Two ques- 
 tions 
 raised. 
 
 I. Principal 
 and Ancil- 
 lary Pro- 
 
 No prin- 
 cipal and 
 ancillary- 
 adminis- 
 tration ; 
 
 The questions raised in this case as to the limits of equitable juris- 
 diction present two aspects : one aspect affords a contrast to similar 
 questions raised in the Probate Division; the other aspect brings its 
 doctrine into conflict with those which obtain in actions of contract 
 at common law. 
 
 I. The general rule as to appointing legal personal representatives 
 of the personalty of a foreign testator, where he does not, as in In the 
 Goods of Murray ([1896] 1 P. 65), make different wills for different 
 countries, was stated thus by Lord Penzance : " I have before acted 
 on the general principle that where the Court of the country of the 
 domicile of the deceased makes a grant to a party who then comes 
 to this Court and satisfies it that by the proper authority of his 
 own country he has been authorized to administer the estate of the- 
 deceased, I ought without further consideration to grant power to that 
 person to administer the English assets : " In re Hill (L. E. 2 P. 
 & M. 90). Compare In re Black (13 P. D. 5). 
 
 This course had been adopted by the executors in the leading case : 
 " sealing " being under 21 & 22 Vict. c. 56, equivalent to a grant of 
 ancillary probate. The effect was " merely to complete the title of the 
 executors to represent their testator within the jurisdiction in mobi- 
 libus (9 App. Cas. p. 38). The administration was "ancillary" to 
 the " principal " administration, or that issued by the country of the 
 domicile of the deceased. For purposes of probate, the jurisdiction 
 is territorial, and splits up the estate into moveables and debts in each 
 country. 
 
 But a different rule prevails where the executors are called to account 
 by the Chancery Division. The Courts of Equity are not territorial, 
 but are " Courts of conscience operating in personam and not in rem ; 
 and in the exercise of this personal jurisdiction they have always been 
 accustomed to compel the performance of contracts and trusts as to- 
 subjects which were not either locally or ratione domicili within their 
 jurisdiction " (p. 40). Again, from the point of view of equity, trusts 
 are indivisible, Innes v. Mitchell (4 Dr. 98) ; In re Lord and Fullerton's 
 Contract ([1896] 1 Ch. 229), whether they relate to debts, In re 
 Klcebe (28 Ch. D. 175), or moveables in England or abroad, or to im- 
 moveables, unless of course the testator makes separate dispositions of 
 his property in any one jurisdiction. Sir G. Jessel, M.B., stated that the 
 proposition that "the principal administrator is entitled to receive the 
 clear surplus," after paying local debts, " remaining in the hands of the 
 limited administrator," is " as a general rule " true : Eames v. Hacon 
 (18 Ch. D. 347, 351). Lord Westbury went beyond this, and said in 
 Enohin v. Wylie (10 H. L. C. 1, 15), " I hold it to be now put beyond 
 all possibility of question that the administration of the personal 
 estate of a deceased person belongs to the Court of the country where 
 the deceased was domiciled at his death. The utmost confusion must 
 arise if, when a testator dies domiciled in one country, the Courts of 
 every other country in which he has personal property should assume 
 the right ... of interpreting the will and distributing the personal 
 
EQUITY ACTS IN PERSONAM. 
 
 estate situate within its jurisdiction according to that interpretation; " 
 and although this dictum seems only to carry out Sir G. Jessel's 
 " general rule " to its last conclusions, it was overruled by the decision 
 in the leading case. 
 
 But there was a sequel to the English case which came before the 
 House of Lords in the following year, Ewing v. Orr Swing (10 App. 
 Cas. 453), and which gave practical effect to Lord Westbury's dictum 
 in cases where an action for administration or its equivalent has been 
 brought in the country of the testator's domicile. In that case the 
 Court of Session, on the application of four residuary legatees, granted 
 an interlocutor for the sequestration (order for administration) of 
 testator's estate, and appointed a judicial factor (receiver). The House 
 of Lords pointed out that the infant plaintiff undertook to become a 
 party to the Scotch administration ; that the trust was Scotch in form ; 
 that the testator was a domiciled Scotchman; that if any questions 
 should arise under the terms of the trust, Scotch law must be employed 
 for their solution ; that the whole trust estate was in Scotland, and 
 was likely to remain there ; consequently a prima facie case had 
 been made that Scotland was the forum conveniens ; and the in- 
 terlocutor of the Court of Sessions, so far as it has been "cited, was 
 upheld. Lord Selborne, in upholding this interlocutor, cited Story's 
 Equity Jurisprudence, s. 589 (2nd English ed. p. 388), with approval. 
 " The question whether the Court of the country where ancillary 
 administration is granted, ought to decree final distribution of the 
 assets, or to remit the property to the forum of the domicile of the 
 party deceased, is treated not so much as a matter of jurisdiction as of 
 judicial discretion" (p. 514), and he assumed that the consequences of 
 this decision would be that the Chancery Division of the High Court 
 would stay proceedings. 
 
 An analogous question arises when orders are made to wind up 
 foreign companies having offices or doing business in England. See 
 In re Matheson Bros., Limited (27 Ch. D. 225), following In re Com- 
 mercial Sank of India (L. E. 6 Eq. 517), In re Commercial Bank of 
 South Australia (33 Cb. D. 174) (where the Court expressed the 
 opinion that the order would be ancillary to the winding-up order in 
 Australia), In re Mercantile Bank of Australia ([1892] 2 Ch. 204), 
 In re Federal Bank of Australia (62 L. J. Ch. 561). 
 
 II. The jurisdiction of the Courts at common law was discussed in the 
 British South Africa Company v. Companhia de Mogambique ([1893] 
 A. C. 602), where it was held that the distinction between " transitory 
 and local" actions is not a technicality bound up with the law of 
 venue, and therefore abolished by the Judicature Acts, but substantial ; 
 and Lord Herschell cited with approval, and applied Story's Conflict of 
 Laws, s. 554, "By the common law personal actions, being transitory, 
 may be brought in any place where the defendant can be found; 
 real actions must be brought in the forum rei sites ; and mixed 
 actions are properly referable to the same jurisdiction. Among the 
 latter are actions for trespasses and injuries to real property which are 
 
 but doc- 
 trine of 
 forum 
 conveniens 
 produces 
 similar 
 effect. 
 
 Winding 
 up of 
 companies. 
 
 II. Common 
 law juris- 
 diction as 
 to land 
 abroad. 
 
EQUITY ACTS IN PERSONAM. 
 
 Equitable 
 jurisdic- 
 tion as to 
 land 
 abroad. 
 
 Cases of 
 jurisdic- 
 tion. 
 
 Cases of no 
 jurisdic- 
 tion. 
 
 Parties. 
 
 deemed local, so that they will not lie elsewhere than in the place 
 rei sitoe.'" 
 
 On the other hand, jurisdiction in certain actions assigned to the 
 Chancery Division extends to the enforcement of obligations relating 
 to foreign land and arising from contract ; and for these purposes the 
 obligation will be measured by the rules of private international law 
 applicable to contract (Westlake's Private International Law, s. 172). 
 In the leading case Scotch land was involved in an English Adminis- 
 tration action. Jenney v. Mackintosh (33 Ch. D. 595) was an action to 
 enforce a creditor's trust deed which by the lex loci as well as English 
 law bound lands in Trinidad. In Perm v. Baltimore (1 Ves. Sen. 444), 
 specific performance was decreed of an agreement to settle boundaries 
 between two provinces in America. An equitable mortgage of foreign 
 realty, though invalid in the foreign land, binds the mortgagor in 
 equity : In re Courtney, Ex parte Pollard (1 Mont. & Ch. 239). 
 Judgment for foreclosure in a mortgage of foreign land may be made, 
 Toller v. Carteret (2 Vera. 495) ; Paget v. Ede (L. B. 18 Eq. 118), 
 and receivers have often been appointed (Seton on Decrees, 5th ed., 
 p. 684), and a question whether the conveyance of foreign lands was 
 fraudulent has been tried. See Arglasse v. Muscamp (1 Vern. 77, n.), 
 and Innes v. Mitchell (4 Dr. 99, n.), where the older cases are collected. 
 An express trust to hold foreign land upon trust for certain persons 
 does not affect the land, though it may create a personal equity : 
 Martin v. Martin (2 Euss & My. 507) ; but an express trust to 
 sell foreign land and hold the proceeds of sale on trust for certain 
 persons affects the proceeds in case the trust for sale takes effect : 
 In re Pierey, Whitwham v. Piercy ([1895] 1 Ch. 83) ; but a dis- 
 puted title to foreign land will not be tried in an action to declare the 
 person who sells the land constructive trustee of the proceeds of sale : 
 In re Hawthorne, Orahara v. Massey (23 Ch. D. 743). Compare Lewin 
 on Trusts, ch. 4. Nor will the validity of a charge on foreign land, 
 arising otherwise than by contract : Norris v. Chambres (3 D. F. J. 
 583) ; nor will the validity of a will of foreign land be tried, though 
 the testator resided in England : Pike v. E'oare (2 Ed. 182) ; nor 
 will a partition of foreign land be ordered, as the equitable jurisdiction 
 was merely borrowed from the Statutory action, and the Statutory 
 action from the common law. See Pemberton v. Barnes, leading case 
 (infra, p. 122); Carteret v. Petty (2 Sw. 323, n.). 
 
 In Moor v. Anglo-Italian Bank (10 Ch. D. 681), an injunction 
 against proceedings in Italy to enforce a sale of land in Italy was 
 refused on the ground of forum conveniens. See cases collected in 
 2 Sw. 323, n., where such injunctions were granted or refused. 
 
 An action against a foreign sovereign cannot be maintained. See 
 White and Tudor's Leading Cases, Penn v. Lord Baltimore (ii. 1074, 
 1075). Where the subject-matter is within the jurisdiction, and 
 defendant, though a foreigner and abroad, has an agent within the 
 jurisdiction, the Court will exercise its jurisdiction : Hart v. Herwig 
 (L. E. 8 Ch. 860); but where the subject-matter is outside the 
 
RESULTING TRUST. 5 
 
 jurisdiction, Malins, V.C., refused to act (1) where defendant could be 
 sued with equal facility in the country where the subject-matter was 
 situate : Doss v. Secretary of State for India (19 Eq. 509) ; Reiner 
 v. Marquis of Salisbury (2 Ch. D. 378) ; and (2) where both parties 
 habitually resided abroad : Matthaei v. Oalitzin (18 Eq. 340). The 
 limits imposed upon serving parties outside the jurisdiction with a 
 writ of summons, or notice thereof are defined in R. S. C. (1883), 
 0. xi. Originating and other summonses cannot be served out of 
 the jurisdiction: In re Busfield (32 Oh. D. 123). 
 
 The fact that the equitable theory of jurisdiction does not exactly Generally, 
 dovetail into the accepted system of private international law, is due 
 to a characteristic to which other flaws in equitable jurisprudence may 
 be traced. In supplementing the arrested development — the semi- 
 civilization — of the common law, equity had to invent some of the most 
 important rights of property — pledges of land, purchaser's rights in rem, 
 the following of trust money, urban easements (restrictive covenants), 
 married women's property, the possessory rights of the limited owner, 
 etc. — and to pass off these solid inventions as abstract maxims, 
 operations upon conscience, and the like. Foreign Courts have some 
 difficulty in following the line of argument which disguises a right 
 of property as a moral precept ; and the difficulty is enhanced by the 
 fact that no nation has produced anything which resembles equity 
 in the English sense. 
 
 Resulting Trust and Presumption of Advancement. 
 
 FOWKES v. PASGOE. 
 
 (L. R. 10 Ch. 34-3.) 
 
 Where in the case of a purchase in the name of Principle. 
 another there is a presumption of resulting trust, and 
 evidence against such presumption, the Court is in the 
 position of a jury, and will take into consideration all 
 the circumstances of the case. 
 
 Sarah Baker was a widow who had large sums of stock Summary 
 standing in her own name, and other considerable pro- 
 perty. Her only child, a son, had died, leaving a child- 
 less widow, who married again and had a son, J. I. Pascoe, 
 
6 KESULTING TRUST AND 
 
 and a daughter. In March, 1843, Sarah Baker invested 
 £500, viz. £250 in the names of herself and her com- 
 panion, and £250 in the names of herself and J. I. Pascoe. 
 Subsequently, in the same year, she made her will, and 
 gave the residue of her estate to her daughter-in-law 
 for life, and after her death among her children. She 
 then made further purchases in the names of herself 
 and J. I. Pascoe, and also transferred stock into the 
 names of herself and J. I. Pascoe, so that at the time 
 of her death there was standing iu the joint names of 
 herself and J. I. Pascoe the sum of £7000. J. I. Pascoe 
 deposed that the £7000 was intended as a gift to him, 
 and his evidence was supported by that of his wife, and 
 by circumstances which made it likely that a gift was 
 intended, e.g. that J. I. Pascoe had lived with her for 
 some years before his marriage. Held, by the Court of 
 Appeal, that J. I. Pascoe was entitled to the £7000 
 stock. 
 
 Principles 
 discussed. 
 
 Resulting 
 trust. 
 
 Three equitable principles are involved in this case: I. The pre- 
 sumption of a resulting trust ; II. the counter-presumption of an 
 intention to make an advancement where the donor is a husband, 
 father, or in loco parentis; III. positive evidence, including the 
 evidence of surrounding circumstances. 
 
 I. The 8th section of the Statute of Frauds provides that trusts 
 arising by implication or construction of law do not require to be 
 created by writing. Hence it has long been established, as stated 
 in the judgment to the well-known case of Dyer v. Dyer, decided in 
 the year 1788 (2 Cox 92), that " the trust of a legal estate, whether 
 freehold, copyhold, or leasehold, whether taken in the names of the 
 purchaser and others jointly, or in the names of others without that 
 of the purchaser, whether in one name or several, whether jointly or 
 successive, results to the man who advances the purchase-money." 
 This rule " goes on a strict analogy to the rule of common law that 
 where a feoffment is made without consideration, the use results to 
 the feoffor." This principle has been extended to purchasers of per- 
 sonalty : " If a man takes a bond or purchases an annuity, stock, 
 or other chattel interest in the name of a stranger, the equitable 
 ownership results to the person from whom the consideration moved : " 
 Lewin on Trusts (9th ed. p. 172). But the presumption does not 
 arise on a voluntary conveyance of land to a stranger : per Lord 
 
PBESUMPT10N OF ADVANCEMENT. 7 
 
 Hardwire, Young v. Peachy (2 Atk. 257). Jessel, M.R., asserted, 
 and James, L.J., "assumed," in the leading case, "that the impli- 
 ■cation of a resulting trust does arise as much in the case of a transfer 
 as in that of a purchase of stock, although that is certainly not the 
 case with regard to a conveyance of land " (pp. 345 n., 348). For 
 ■dicta contrary to that of Jessel, M.E., see Cook v. Fountain (3 Sw. 
 590) ; George v. Bank of England (7 Pr. 651). 
 
 II. The general law upon this subject has been well summed up Advance- 
 by Jessel, M.R. (who was not ashamed to confess that the authorities m ent. 
 very much embarrassed him), in Bennet v. Bennet (10 Ch. D. 474) : 
 •" The doctrine of equity as regards presumption of gifts is this, that 
 ■ where one person stands in such a relation to another that there is 
 an obligation on that person to make a provision for the other, and 
 we find either a purchase or investment in the name of the other, or 
 in the joint names of the person and the other of an amount which 
 would constitute a provision for the other, the presumption arises of 
 an intention on the part of the person to discharge the obligation to 
 the other, and therefore, in the absence of evidence to the contrary, 
 that purchase or investment is held to be in itself evidence of a gift ; 
 in other words; the presumption of gift arises from the moral obliga- 
 tion to give." 
 
 The doctrine of advancement, as was stated in this case, arises By whom, 
 from the presumption of an intention on the part of the person to 
 discharge his duty to another, and applies not only to the case of a 
 parent, but also to a husband and any person who has put himself 
 in loco parentis, i.e. has taken upon himself the duty of making 
 provision for another : Ex parte Pye (18 Ves. 140), approved of in 
 Powys v. Mansfield (3 My. & Cr. 359, 367) ; and see In re Hamlet 
 {38 Ch. D. 183 ; 39 Oh. D. 426, 433). 
 
 The presumption of advancement has been held to arise where the To whom, 
 purchase was made in the name of an illegitimate child or a grand- 
 child, the father being dead, Ebrand v. Dancer (2 Ch. Ca. 26); 
 Bechford v. Bechford (Lofft. 490), a wife's nephew who had been 
 adopted," Currant v. Jago (1 Coll. 261), but not in the case of an 
 illegitimate grandson whose father was alive, Tucker v. Burrow 
 (2 H. & M. 515), nor in favour of a deceased wife's sister who was 
 living with the purchaser as his reputed wife, but not legally married : 
 Soar v. Foster (4 K. & J. 152). 
 
 In Bennet v. Bennet (10 Ch. D. 474), Jessel, M.E., held (dissenting Moth ^' 
 from the statement of the law in Sayre v. Hughes (L. R. 5 Eq. 
 376)), that no presumption of advancement arises in the case of a 
 mother ; and he extended this principle from the case of a married 
 woman living apart from her husband, In re De Visme (2 D. J. & 
 S. 17), to the case of a widow. But the reason alleged in these 
 cases, i.e. that a mother is not obliged to support her children, has 
 lost its force since sect. 21 of the Married Women's Property 
 Act, 1882, which provides that "a married woman having separate 
 property shall be subject to all such liability for the maintenance 
 
8 
 
 RESULTING TRUST AND 
 
 Evidence. 
 
 Inference 
 from evi- 
 dence in 
 leading 
 case. 
 
 of her children and grandchildren as the husband is now by law 
 subject to for the maintenance of her children and grandchildren." 
 Jessel, M.E., went on to say : " In the case of a mother— this is the 
 case of a widowed mother — it is easier to prove a gift than in the case 
 of a stranger. In the case of a mother, very little evidence beyond 
 the relationship is wanted, there being very little additional motive 
 required to induce a mother to make a gift to her child." Compare 
 In re Orme (50 L. T. 52). This suggests that although a person is 
 not in loco parentis (as in the leading case), his relationship to the 
 donee may be a very important link in the chain of evidence which 
 rebuts the presumption of a resulting trust. 
 
 III. The question of resulting trust or of advancement being a 
 question of the purchaser's intention, evidence antecedent to or con- 
 temporaneous with or immediately after the purchases, so as to form 
 part of the same transaction, may be admitted to rebut it ; subsequent 
 declarations, except so far as they 1 prove intention at the time, are 
 inadmissible. "And it seems the subsequent acts and declarations 
 of the father may be used against him by the son, though they cannot 
 be used in his favour, and so the subsequent acts or declarations of 
 the son may be used against him by the father, provided he was a 
 party to the purchase, and his construction of the transaction may be 
 taken as an index to the intention of the father, but not otherwise ; 
 for the question is not what did the son, but what did the father mean 
 by the purchase : " Lewin on Trusts (9th ed. p. 186). " This principle 
 of law and presumption, that a purchase in the name of a son is an 
 advancement prima facie, is not to be frittered away by mere refine- 
 ment : " per Lord Eldon, Finch v. Finch (15 Ves. 43, 50). Formerly 
 the uncorroborated evidence of an interested party was not received 
 by Courts of Equity so as to establish a claim against the estate of a 
 deceased person. Sir Gr. Jessel had applied this rule to the leading case : 
 compare In re Finch (23 Ch. D. 267, 271) ; but the Court of Appeal 
 practically disregarded it, and consequently came to an opposite con- 
 clusion to that of Sir Gr. Jessel ; it is now overruled : In re Garnett 
 (31 Ch. D. 1, 9) ; In re Hodgson (31 Ch. D. 177, 183) ; In re Dillon, 
 Duffin v. Duffin (44 Ch. D. 76, 80); In re Farman (57 L. J. 
 Ch. 637). 
 
 Another peculiarity about the facts of the leading case was that the 
 Court drew from them the inference that a gift in the nature of an 
 advancement was intended so that there was no resulting trust ; but 
 that an advancement was not intended so as to " adeem " the gift by 
 will (see post, p. 265). They regarded the matter from the standpoint 
 of a jury ; thus Hellish, L. J., said : " When there is once evidence 
 to rebut the presumption, the Court is put in the same position as a 
 jury would be, and then we cannot give such influence to the presump- 
 tion in point of law as to disregard the circumstances of the invest- 
 ment, and to say that neither the circumstances nor the evidence are 
 sufficient to rebut the presumption. The presumption must, beyond 
 all question, be of very different weight in different cases. In some 
 
PRESUMPTION OF ADVANCEMENT. 9 
 
 cases it would be very strong indeed. If, for instance, a man invested 
 a sum of stock in the name of himself and his solicitor, the inference 
 would be very strong indeed that it was intended solely for the purpose 
 of a trust, and the Court would require very strong evidence on the 
 part of the solicitor to prove that it was intended as a gift; and 
 certainly his own evidence would not be sufficient. On the other 
 hand, a man may make an investment of stock in the name of him- 
 self and some person, although not a child or wife, yet in such a 
 position to him as to make it extremely probable that the investment 
 was intended as a gift." 
 
 All the modern cases turn on evidence. Thus Sir G. Jessel, M.E., Relation- 
 said, in Marshal v. Orutwell (20 Eq. 328, 329), that "the mere ship helps 
 circumstance that the name of a child or a wife is inserted on the °} evl " 
 
 U.6I1C6 
 
 occasion of a purchase of stock is not sufficient to rebut a resulting 
 trust in favour of the purchaser, if the surrounding circumstances lead 
 to the conclusion that a trust was intended. Although a purchase in 
 the name of a wife or child, if altogether unexplained, will be deemed 
 a gift, yet you may take surrounding circumstances into consideration, 
 so as to say that it is a trust, not a gift. So, in the case of a stranger, 
 you may take surrounding circumstances into consideration, so as to 
 say that a purchase in his name is a gift, not a trust." 
 
 The following cases will speak for themselves : — - Cases. 
 
 There is no resulting trust where a purchase is made with a view to Resulting 
 defeat the policy of the law, e.g. where property was purchased by A. trusts, 
 in the name of B., in order to give B. a vote for » parliamentary 
 election : Philpotts v. Philpotts (10 0. B. 85) ; Groves v. Groves (3 
 Y. & J. 163). Compare May v. May (33 Beav. 81) ; contrast Demies 
 v. Otty (34 L. J. Ch. 252). But a defendant relying on this defence 
 should plead it : Baigh v. Kaye (see below). He may not plead his 
 own illegality (ib.). 
 
 In Haigh v. Kaye (L. B. 7 Ch. 469) a resulting trust was established, 
 although the (voluntary) indenture expressed that value was received. 
 Similarly, in In re Duke of Marlborough, Davis v. Whitehead ([1894] 
 2 Ch. 133), where a wife assigned to her husband her leasehold house : 
 the consideration was " natural love." He mortgaged it, and she joined 
 in the deed of mortgage, which reserved the equity of redemption to 
 him. Parol evidence proved that she only assigned it that he might 
 borrow money on it. It was held that the equity of redemption 
 resulted to her. 
 
 A widowed mother borrowed a sum of £3000 for her son's benefit, 
 and subsequently claimed to be a creditor in the administration of his 
 estate. It was held upon the evidence that the £3000 was to be con- 
 sidered not as a gift, but as a loan : Bennet v. Bennet (10 Ch. D. 474). 
 
 In Standing v. Bowring (31 Ch. D. 282) a widow eighty-six years 
 of age transferred a sum of £6000 consols into the joint names of 
 herself and her godson. It was established by evidence that she was 
 aware when she did this that she would be able during her lifetime 
 to receive the dividends, and that if her godson survived her, he would 
 
10 
 
 BE8ULTING TRUST. 
 
 Advance- 
 ment. 
 
 Generally. 
 
 become entitled as survivor to the consols so transferred, and it was 
 decided accordingly that she could not claim a retransfer. 
 
 A minor point in this case was that the godson was unaware of the 
 transfer. For the presumption that a donee accepts unless he repudiates 
 a gift, see London and . County Banking Co. v. London and River 
 Plate Bank (21 Q. B. D. 535); In re Arbib and Class' Contract 
 ([1891] 1 Ch. 601). 
 
 In Garrett v. Wilkinson (2 De G. & Sm. 244) money was lent 
 out in the name of a son who was acting as solicitor for his father 
 and it was held that the burden of proof was shifted, and that there 
 was no presumption of advancement. Transfer of shares to a son 
 that he may qualify for a directorship, In re Gooch (62 L. T. 384), 
 or may not pay duty, Bone v. Pollard (24 Beav. 283), are not advance- 
 ments. 
 
 In In re Eykyn's Trusts (6 Ch. D. 115) shares were transferred 
 into the names of the donor, his wife, and two strangers, who were 
 trustees of his marriage settlement ; it was held (following Fowkes v. 
 Pascoe) that these investments were on the husband's death to be 
 treated as advancements upon trust for the wife. Compare George v. 
 Howard (7 Price 646) ; Batstone v. Salter (L. B. 10 Ch. 431). 
 
 A father purchased cottages in his son's name ; then raised the rent 
 paid by a tenant and acted as owner, and said that the cottage was 
 the son's after his death. There was no advancement : Stock v. McAvoy, 
 (15 Eq. 55). Contrast Williams v. Williams (32 Beav. 370). 
 
 In In re Whitehouse, Whitehouse v. Edwards (37 Ch. T>. 683), a 
 father and son entered into a bond to pay the purchase-money of a 
 business which the son bought. The purchase-money was payable 
 in instalments. It was held that those payments which were made in 
 the father's lifetime were meant as advancements ; but see Skidmore 
 v. Bradford (8 Eq. 134). 
 
 A husband who was ill, transferred his banking account into the 
 joint names of himself and his wife, authorizing the latter to draw 
 cheques. This was no advancement : Marshal v. Crutwell (20 Eq. 328). 
 Compare Lloyd v. Pughe (L. B. 8 Ch. 88). 
 
 It was held by the Court of Appeal in Ex parte Cooper (W. N. 
 1882, p. 96), that where the parties are alive and give evidence, there 
 is no occasion to resort to aDy presumption, as the question is one 
 of fact. 
 
DIRECTORS AND CONSTRUCTIVE TRUSTEES. 11 
 
 Directors and Constructive Trustees, or 
 Charges of Companies. 
 
 WRIGHT v. HORTON. 
 
 (12 App. Cas. 371.) 
 
 Mere non-registration of a mortgage or charge given Principle 
 by a company to one of its directors or officers does not 
 invalidate the security. 
 
 In this case debentures in a company, incorporated Summary 
 under the Companies Act, 1862, were issued to a director 
 of the company. They were not registered in accordance 
 with the requirements of the 43rd section of the Com- 
 panies Act, 1862. The company afterwards went into 
 liquidation, and the validity of the debentures was con- 
 tested both by the unsecured creditors and by certain 
 debenture holders, with regard to whom it was not proved 
 that they had made any inquiry as to the charges on the 
 company's property or the existence of a register. It was 
 decided by the House of Lords that the mere omission to 
 register did not invalidate the debentures at all events as 
 between the directors and such creditors. 
 
 As between themselves and the shareholders directors are con- Directors 
 structive trustees of their powers. " The directors are trustees of the are con- 
 powers committed to them, as, for instance, of the power of approving f .? 1Te f 
 transfers of shares, of the power of allotment of shares, of the power powers • 
 of employing the funds of the company, of the power of making calls 
 or receiving payment of calls in advance, of the power of forfeiting 
 shares, and as trustees they may be rendered liable for their misuse : " 
 Buckley on Companies (6th ed., pp. 496, 497). And they are 
 trustees as to moneys of the company under their control: In re 
 Lands Allotment Co. ([1894] 1 Ch. 616) ; but see In re Severn and 
 Wye, etc., Co. ([1896] 1 Ch. 559). See post, p. 189. The question 
 which the House of Lords set at rest in the leading case was : did 
 
12 DIRECTORS AND CONSTRUCTIVE TRUSTEES. 
 
 this principle apply to the 43rd section of the Companies Act, 1862 
 (25 & 26 Vict. c. 89), which provides as follows ?— " Every limited 
 company under this Act shall keep a register of all mortgages and 
 charges specifically affecting property of the company, and shall enter 
 in such register in respect of each mortgage or charge, a short descrip- 
 tion of the property mortgaged or charged, the amount of charge 
 created, and the names of the mortgagees or persons entitled to such 
 charge. If any property of the company is mortgaged or charged 
 without such entry as aforesaid being made, every director, etc., incurs 
 a penalty of £50. The register of mortgages required by this section 
 shall be open to inspection by any creditor or member of the company 
 at all reasonable times, and if such inspection is refused" every 
 director, etc., incurs a further penalty, 
 not of In commenting on this section in In re International Pulp and Paper 
 
 penal Co., Knowle's Mortgage (6 Ch. D. 556), Sir George Jessel pointed 
 
 duties. out t k at; t jj e _^ ct m flj ted a penalty, a distinct and precise penalty and 
 
 nothing else; that it was a well-known principle that when an Act 
 of Parliament imposes a penalty on the doing or omitting to do a 
 particular thing, that is the only penalty, and that he considered that 
 if the invalidation of the mortgage had been the penalty intended to 
 be imposed, the Act would have said so (see Note). 
 
 In delivering judgment in the Globe Iron Company's Case (48 L. J. 
 Ch. 295), Sir George Jessel expressed himself as follows : — " Is it true 
 that in addition to the Act I have mentioned, there is an equity super- 
 added to every Act of Parliament that if a man does not obey it he 
 forfeits all rights which are otherwise given him by law ? I am not 
 aware of any such rule. That would be adding to the Act of Parlia- 
 ment, and would not be a superadded equity. If a man is directed to 
 do an act and does not do it, and is made liable to a penalty by Act of 
 Parliament, equity has no right to add an additional penalty. On 
 the contrary, the ordinary principle is to relieve from penalties and 
 forfeiture, but in no case that I know of to inflict them. Therefore 
 there not being any general principle with which I am acquainted, and 
 no special equity, and nothing in the Act of Parliament, if this were 
 a matter res integra, and there were no decisions, I should say that 
 the point was not fairly open to argument." The reasoning of Sir 
 George Jessel was adopted by the Law Lords in Wright v. Horton. 
 
 The Lord Chancellor, in delivering judgment in the leading case, 
 expressed himself as follows : — " The statute for very obvious reasons 
 in constituting a code for the regulation of trading companies has 
 enacted that they shall keep an account of mortgages or charges 
 specifically affecting their property. Had the legislature thought right 
 it might have rendered all mortgages or charges invalid unless they 
 had been entered in this account. It has not done so. It might 
 further have enacted that no director or officer of the company should 
 take any benefit from any charge or mortgage whereof he was the 
 owner if he were a party to its non-registration — this it has not done. 
 It has simply enacted a pecuniary penalty for the non-performance 
 
STRANGERS TO TRUST CONSTRUCTIVE TRUSTEES. 13 
 
 of the statutory duty, when that statutory duty is knowingly and 
 wilfully omitted. 
 
 " If the principle is supposed to be that no director can be allowed to 
 derive any benefit from a debenture which he has obtained by lending 
 money to the company of which he is a director, because he has dis- 
 obeyed, or permitted to be disobeyed, the provisions of the Companies' 
 Act in some respect or another, the proposition is so wide as to become 
 on the face of it absurd. If, on the other hand, it amounts to this, 
 that the non-registration of his debenture by a director is a continuous 
 representation to every other shareholder and creditor that such a 
 debenture does not exist, it assumes a construction of the section to 
 which I cannot assent ; and I know of no authority which this or any 
 other Court has to add additional penalties to that which the legislature 
 has specifically enacted." 
 
 The many previous cases on this subject which held that an equity 
 would exist under these circumstances, are superseded by the decision 
 in Wright v. Horton. They will be found reviewed in the judgments 
 of the Law Lords in that case. 
 
 Note. — A bill is now before Parliament which invalidates unregistered 
 mortgages of companies. 
 
 Strangers to the Trust Constructive Trustees. 
 
 BARNES v. ADDY. 
 
 (L. R. 9 Ch. 244.) 
 
 A stranger to a trust acting as agent of the trustees Principle. 
 in transactions within their legal powers may he held 
 liable as a constructive trustee, if he receives and be- 
 comes chargeable tvith part of the trust property, and 
 will be held liable if he acts with knowledge of a dis- 
 honest and fraudulent design on the part of the trustees. 
 
 Addy was sole surviving trustee of a fund under a Summary 
 
 will which gave him a power of appointing new trustees, 
 but no power of reducing their number. The portion 
 of the estate which was the subject of litigation in the 
 present action consisted of a sum invested in consols. 
 
 of facts. 
 
14 8TB ANGUS TO THE 
 
 One moiety of the fund, spoken of as the " Addy " 
 share, was held for the benefit of Mrs. Addy and her 
 children ; the other moiety, spoken of as the " Barnes " 
 share, for the benefit of Mrs. Barnes and her children. 
 
 Family disputes having arisen, Addy desired to appoint 
 Barnes in his place as sole trustee of the Barnes fund. 
 His solicitor advised him not to do so, and pointed out 
 the risk of the misapplication of the trust fund when it 
 was put in the power of a sole trustee; but Addy persisted 
 in his intention. Addy's solicitor, on his instructions, 
 drew up a deed of appointment and indemnity, but 
 required that it should be approved by an independent 
 solicitor on behalf of Mrs. Barnes and her children. 
 Barnes' solicitor, acting on behalf of Mrs. Barnes and 
 her children, warned her of the risk of the proposed 
 transaction, but on her replying that she fully understood 
 the matter and desired it to be carried through, approved 
 the deed on her behalf. Addy's solicitor then introduced 
 Barnes to a broker, and Addy transferred the " Barnes " 
 share to Barnes. The next day Barnes misappropriated 
 the whole of the " Barnes " share, and subsequently 
 became bankrupt. The solicitors had no knowledge of 
 any fraudulent design on the part of Barnes, and the 
 question was whether, under all the circumstances, they 
 were to be held liable. The Court of Appeal decided, 
 affirming the decision of Vice-Chancellor Wickens, that 
 they were not liable. 
 
 This case is cited in Lewin on Trusts, 9th ed. p. 1027, as an authority 
 for the following proposition : — " A solicitor is not liable as a construc- 
 tive trustee for the consequences of acts done by him pursuant to 
 instructions from his clients, who are trustees, and exercising their 
 legal powers, unless he either receive some part of the trust property 
 p.- • i or assist with knowledge in some dishonest and fraudulent design 
 extends to on the part of his clients.'' The principles established by this case 
 all classes would, however, clearly appear to be by no means limited to solicitors, 
 
 of agents ^ut to ex t en ^ to all other classes of persons who act as agents for 
 for ° 
 
 trustees. trustees. 
 
TRUST CONSTRUCTIVE TRUSTEES. 15 
 
 Lord Selbome, in delivering judgment, pointed out that it was 
 equally important to maintain the doctrine of trusts which is established 
 in this Court, and not to strain it by unreasonable construction beyond 
 its true and proper limits. " There would be," he said, " no better 
 mode of undermining the sound doctrines of equity than to make 
 unreasonable and inequitable applications of them." 
 
 " In this case," said the Lord Chancellor, " we have to deal with 
 certain persons who are trustees, and with certain other persons who 
 are not trustees. That is a distinction to be borne in mind through- 
 out the case. Those who create a trust clothe the trustee with a 
 legal power and control over the trust property, imposing on him a, 
 corresponding responsibility. That responsibility may no doubt be 
 extended in equity to others who are not properly trustees, if they are 
 found either making themselves trustees de son tort or actually par- 
 ticipating in any fraudulent conduct of the trustee to the injury of the 
 cestuis que trust. But on the other hand, strangers are not to be made 
 constructive trustees merely because they act as the agents of trustees 
 in transactions within their legal powers, transactions perhaps of which 
 a Court of Equity may disapprove, unless those agents receive and 
 become chargeable with some part of the trust property, or unless they 
 assist with knowledge in a dishonest and fraudulent design on the part 
 of the trustees. Those are the principles, as it seems to me, which we 
 must bear in mind in dealing with the facts of this case. If those 
 principles were disregarded I know not how any one could in trans- 
 actions admitting of doubt as to the view which a Court of Equity 
 might take of them, safely discharge the office of solicitor, of banker, 
 or of agent of any sort to trustees. But on the other hand, if persons 
 dealing honestly as agents are at liberty to rely on the legal power of 
 the trustees, and are not to have the character of trustees constructively 
 imposed on them, then the transactions of mankind can safely be 
 carried through, and I apprehend those who create trusts do expressly 
 intend, in the absence of fraud and dishonesty, to exonerate such agents 
 of all classes from the responsibilities which are expressly incumbent 
 by reason of the fiduciary relation upon the trustees." 
 
 The Court of Appeal then considered the facts of the case before 
 them. So far as one solicitor was concerned, there was not the slightest 
 trace whatever of knowledge or suspicion on his part of any improper 
 or dishonest design in the transaction. To hold him liable on account 
 of his preparation and approval of the deed would be not only opposed 
 to all authority, but would render it impossible for any person safely 
 to act as a solicitor for any retiring or incoming trustee unless he took 
 upon himself the office of a Court of Equity and satisfied himself that 
 nothing in the transaction could possibly be called in question. The 
 case against the other solicitor carried the point very little further. He 
 knew that as a general rule it was not a safe thing to hand over a trust 
 fund to a single trustee, he advised against it, and he prepared a deed 
 of indemnity. To hold that a solicitor in such a case was a con- 
 structive trustee would be, the Court said, an alarming doctrine which 
 
16 
 
 STRANGERS TO THE 
 
 Cases of no 
 construc- 
 tive trust. 
 
 Bankers. 
 
 Money 
 under joint 
 control at 
 bank. 
 
 Directors. 
 
 they would not be the first to lay down, it not having been laid down 
 by any of their predecessors. " I have long thought," said Lord 
 Justice James, "that this Court has in some cases gone to the very 
 verge of justice in making good to cestuis que trustent the consequences 
 of the breaches of trust of their trustees at the expense of persons 
 perfectly honest, but who have been in some more or less degree 
 injudicious. I do not think it is for the good of cestuis que trustent 
 or the good of the world that those cases should be extended." 
 
 The following were cases in which attempts were made to apply the 
 doctrine of constructive trusts beyond the limits defined by Barnes v. 
 
 Solicitors. 
 
 In Gray v. Johnston (L. R. 3 H. L. 1) the trustee was executor, and 
 the alleged constructive trustee banker. The executor transferred the 
 balance on her executorship account to a partnership account formed 
 after the testator's death. In refusing to make the bank liable, Lord 
 Cairns stated the law thus : " There must, in the first place, be some 
 misapplication, some breach of trust intended by the executor, and 
 there must, in the second place, as was said by Sir J. Leach in the well- 
 known case of Keane v. Robarts (4 Madd. 357), be proof that the 
 bankers are privy to the intent to make this misapplication of the trust 
 funds," and added " if it be shown that any personal benefit to the 
 bankers; themselves is designed or stipulated for, that circumstance, 
 above all others, will most readily establish the fact that the bankers 
 are in privity with the breach of trust which is about to be com- 
 mitted." 
 
 In In re Barney, Barney v. Barney ([1892] 2 Ch. 265) it was 
 urged that, because a trustee could not draw trust money out of a bank 
 unless her cheques were initialed by two friends, therefore those two 
 friends were jointly responsible with her for the loss of the proceeds of 
 her cheques. Kekewich, J., refused to go beyond the line drawn in 
 Barnes v. Addy, and said that property must be legally or equitably 
 vested in a person in order to make him liable as constructive trustee ; 
 here there was no evidence that the two friends received the money. 
 
 The leading case of Barnes v. Addy is commented on in Wilson v. 
 Lord Bury (5 Q. B. D. 518). In this case the plaintiff was a depositor 
 in an investment company of which the defendants were directors. 
 On the company going into liquidation, the plaintiffs sought to recover 
 from the defendants on the ground that there was a trust imposed upon 
 the company to procure, and from time to time renew, a mortgage to 
 secure plaintiff's money, and that the company having failed to renew 
 the mortgage, the directors were liable as constructive trustees. The 
 Court decided that there was no trust, but one of the judges went 
 further, and said that even assuming that there was a trust as between 
 plaintiff and the company, the defendants being strangers to the trust, 
 and not having received any part of the moneys for their own benefit, 
 nor had any suspicion of any improper design in the transaction, 
 could not be held liable. 
 
 In In re Spencer, Spencer v. Hart (51 L. J. Ch. 271) an actiou 
 
TRUST CONSTRUCTIVE TRUSTEES. 17 
 
 was brought by a cestui que trust against the trustees for adminis- 
 tration, and the solicitors for the trustees were joined as defendants. 
 One of the allegations in the statement of claim was that grossly 
 exorbitant sums had been allowed in the accounts as costs to the 
 trustees' solicitors, and the relief claimed against the solicitors was 
 that their bill should be taxed. It was decided that such an action 
 was not maintainable, that on the principle laid down in Barnes v. 
 Addy, the solicitors were not liable as constructive trustees, and that 
 the proper remedy was by petition under sect. 39 of the Solicitors Act, 
 1843. No leave to amend was given. Compare Burstall v. Beyfus 
 (26 Ch. D. 35). This principle resembles that of Wright v. Eorton 
 (ante, p. 11). 
 
 In In re Blundell, Blundell v. Blundell (40 Ch. D. 370), which 
 was characterized by Stirling, J., as a case which involved a question 
 of great importance, not only to solicitors, but to all other persons (e.g. 
 auctioneers and stockbrokers) who are employed by trustees to assist 
 them in the discharge of their duties, the following principle was laid 
 down with reference to the position of constructive trustees: "A 
 stranger to the trust receiving from the trustee what he knows to be 
 part of the trust estate is not liable as a constructive trustee, unless 
 there are facts brought home to him which show that to his knowledge 
 the money is being applied in a manner which is inconsistent with 
 the trust ; or (in other words) unless it be made out that he is a 
 party either to a fraud or to a breach of trust on the part of the 
 trustee." 
 
 In Brinsden v. Williams ([1894] 3 Ch. 185) the solicitors received 
 the mortgage money, lodged it at their bank, and paid it to the 
 mortgagor. The security was authorized by the trust, but insufficient. 
 The solicitors were not held liable, because they had not advised upon 
 the sufficiency of the security. Bae v. Meeh (14 App. Cas. 558) (see 
 post, p. 149) was relied upon as the grounds for this decision. 
 
 In Mara v. Browne ([1896] 1 Ch. 199) it was held that H. Browne 
 (a solicitor) was within the exemption established by Barnes v. Addy, 
 as he had acted (in the matter of certain improper mortgages) merely as 
 agent. Yet it was at his instigation that the trust funds were lodged 
 at a bank, and then paid to him for investment in the improper invest- 
 ments which had occasioned the loss complained of. Contrast Soar v. 
 Ashwell ([1893], 2 Q. B. 390); Blyth v. Fladgate ([1891] 1 Ch. 337). 
 
 A second point raised in this case was whether if Browne had been Solicitor's 
 held to be a constructive trustee, his partners would have been liable, partners. 
 Reliance was placed (p. 86) (1) upon the fact that letters in the matter 
 had been addressed to and written in the name of the firm. (2) The 
 books of the firm (kept, it is true, by H. Browne) showed the money as 
 money paid by the firm to the mortgagee. The liability of the other 
 partners would have been clear if, as in Rhodes v. Monies ([1895] 1 
 Ch. 236), the solicitors had habitually acted as mortgage brokers ; or 
 if, as in Blyth v. Fladgate ([1891], 1 Ch. 337), the moneys received 
 had been paid into the account of the partners. But neither of these 
 
 C 
 
18 STRANGERS TO TRUST CONSTRUCTIVE TRUSTEES. 
 
 Cases of 
 construc- 
 tive trust. 
 
 Statute of 
 Limita- 
 tions. 
 
 No degrees 
 in liability. 
 
 circumstances occurred in this case, and the Court of Appeal leant 
 against this view. 
 
 The following are cases in which it was held that a constructive 
 trust was created. They fall well within the limits defined by Barnes 
 v. Addy : — 
 
 In Lee v. Sankey (L. E. 15 Eq. 204) solicitors received trust 
 funds as agents for the co-executors and co-trustees of the estate 
 of a testator, and paid over proceeds of the sale of real estate (part of 
 the trust funds) to one only of the co-executors and co-trustees, and 
 were held liable for the loss which resulted from this breach of trust. 
 
 In Bolton v. Curre ([1895] 1 Ch. 544) trustees, at the instigation of 
 A. B., invested trust money on an equitable mortgage to A. B. This 
 investment was a breach of trust. It was assumed, as a matter of 
 course, that A. B. was constructive trustee. A solicitor might be 
 suspended for two years for such conduct : Trevor and Lake's 
 Solicitors Act, 1888 (p. 160). 
 
 In In re Champion, Dudley v. Champion ([1893] 1 Ch. 101) 
 two persons (who were also trustees) mortgaged property to a 
 solicitor who " had notice " that this mortgage was a breach 
 of trust. That is to say, the solicitor knew the contents of the 
 will which settled the property, but mistook their meaning, and 
 consequently paid part of the mortgage money to the wrong 
 persons. It was held that, in subsequently selling the property, 
 he sold as constructive trustee for the beneficiaries, and that the latter 
 could follow and claim all the purchase money which their constructive 
 trustee had received, minus such part of the mortgage money as had 
 been credited by the mortgagors to the trust estate. 
 
 In Blyth v. Fladgate, Soar v. Ashwell, the solicitors acted as prin- 
 cipals, and received the trust money as such. 
 
 A constructive trustee is in the same position as an express trustee 
 for the purposes of the Statutes of Limitation : Soar v. Ashwell, citing 
 In re Bell (34 Ch. D. 462), and other cases. See post, p. 189. 
 
 As between persons appointed trustees and persons who have become 
 constructive trustees of an estate there is no primary and secondary 
 liability, but all are equally liable for a breach of trust : Cowper v. 
 Stoneham (68 L. T. 18). 
 
 See also notes to In re IMlett's Estate (post, pp. 179-186). 
 
PRECATORY TRUSTS. 19 
 
 Precatory Trusts. 
 
 In re ADAMS AND THE KENSINGTON VESTRY. 
 
 (27 Ch. D. 394.) 
 
 The current of decisions with regard to precatory Principle. 
 trusts is now changed. The Court will not allow a 
 precatory trust to he raised unless, on the consideration 
 of all the words employed, it comes to the conclusion 
 that it was the intention to create a trust. 
 
 A testator gave all his real and personal estate and Summary 
 
 effects wheresoever and whatsoever unto and to the 
 absolute use of his wife, her heirs, executors, adminis- 
 trators and assigns, " in full confidence that she will do 
 what was right as to the disposal thereof between my 
 children, either in her lifetime or by will after her 
 decease." The Court of Appeal decided, affirming the 
 decision of Pearson, J., that the widow took an absolute 
 interest in the property, " unfettered by any trust in 
 favour of the children." 
 
 of facts. 
 
 The decision of the Court of Appeal in this case may be considered 
 as finally settling the conflict between the older and the modern 
 authorities on the subject of " Precatory Trusts.'' 
 
 The effect of the old cases was that when property was given abso- Effect of 
 lutely to any person accompanied by words of recommendation, entreaty, the °^ 
 request, hope, or wish (like the peto, rogo, volo, mando, fidei turn com- 
 mztto, by which fidei-commissa were created by the Roman Law, 
 Justinian, Instit. Lib. ii. 24. 3), such words were held to create a pre- 
 catory trust in favour of other persons, if the words used were upon the 
 whole to be construed as imperative, and if the subject of the recom- 
 mendation or wish, etc., and the object or person intended to be benefited 
 were certain. 
 
 The rule on this subject is thus expressed in Jarman on Wills General 
 (vol. i. p. 366, 5th ed.) : — " If there is a total absence of explicit Re- 
 direction as to the quantum to be given, or as to the objects to be 
 
20 
 
 PRECATORY TRUSTS. 
 
 Former 
 rule. 
 
 Modern 
 rule is 
 different. 
 
 selected by the donee of the property, then the Court will infer from the 
 circumstance of the testator having used precatory words, expressive 
 only of hope, desire, or request, instead of the formal words usual for 
 the creation of a trust, that those words are used, not for the purpose 
 of creating an imperative trust, but simply as suggestions on the part 
 of the testator, for the guidance of the donee in the distribution of the 
 property ; the testator placing implicit reliance upon his discretion and 
 leaving him the sole judge whether he will adopt those suggestions or 
 not, and whether he will dispose of the property in the manner indicated 
 by the testator, or in any other manner at his absolute discretion." 
 
 The reason of this rule is well expressed in the judgment of 
 the Mussoorie Bank v. Raynor (7 App. Cas. 321) : " If there is- 
 uncertainty as to the amount or nature of the property that is given 
 over, two difficulties at once arise. There is not only difficulty in the 
 execution of the trust, because the Court does not know upon what 
 property to lay its hands, but the uncertainty in the subject of the 
 gift has a reflex action upon the previous words, and throws doubt 
 upon the intention of the testator, and seems to show that he could not 
 possibly have intended his words of confidence, hope, or whatever they 
 may be — his appeal to the conscience of the first taker — to be impera- 
 tive words." 
 
 The old cases on the doctrine of precatory trusts, such as Malim v. 
 Keighky (2 Ves. 333, 529, a), will be found collected in Jarman (5th ed. 
 vol. i. pp. 356 et seq.) ; Theobald on Wills (4th ed. p. 398) ; and Lewin 
 on Trusts (9th ed. pp. 137 et seq.). 
 
 In modern decisions, however, the leaning of the Court has been dis- 
 tinctly against the establishment of precatory trusts. In Lamhe v. 
 Eames (L. R. 6 Ch. 597), where the gift was to the testator's widow to 
 be " at her disposal in any way she might think best for the benefit of 
 herself and family," the Court of Appeal held that the widow took 
 absolutely. In this case, as stated in one of the judgments in the 
 leading case (27 Ch. D. p. 411), the late Lord Justice James had the 
 courage to "stem the tide.'' " The question,'' he said, " was whether 
 those words create any trust affecting the property. In hearing case 
 after case cited, I could not help feeling that the officious kindness of 
 the Court of Chancery in interposing trusts where in many cases the 
 father of the family never meant to create trusts, must have been 
 a very cruel kindness indeed. I am satisfied that the testator in 
 this case would have been shocked to think that any person calling 
 himself a next friend could file a bill in this Court, and, under 
 pretence of benefiting the children, have taken the administration 
 of the estate from the wife. I am satisfied that no such trust was 
 intended, and that it would be a violation of the clearest and plainest 
 wishes of the testator if we decide otherwise." 
 
 In Stead v. Mellor (5 Ch. D. 225) the testator gave the residue of 
 his property in trust for such of his two nieces as should be living 
 at bis decease, "my desire being that they should distribute such 
 residue as they think will be most agreeable to my wishes." It was 
 
PRECATORY TRUSTS. 21 
 
 held, that the nieces took the residue for their own benefit. Lambe v. 
 Eames (ubi supra) was also expressly followed in In re Hutchinson and 
 Tenant (8 Oh. D. 540), where a testator gave all his real and personal 
 estate to his wife "absolutely with full power for her to dispose of the 
 same as she may think fit for the benefit of my family, having full 
 confidence that she will do so." It was held that the words were not 
 intended to impose any obligation on the widow, but that they were 
 merely an expression of the testator's wishes and belief as distinguished 
 from an obligation, and accordingly that the property passed to her 
 absolutely. In the case of the Mussoorie Bank v. Raynor (ubi supra), 
 the Privy Council expressed the opinion that " the current of decisions 
 now prevalent for many years in the Court of Chancery shows that the 
 doctrine of precatory trusts is not to be extended." 
 
 In In re Moore, Moore v. Roche (34 W. R. 343), the testator made a 
 bequest in the following terms : — " I bequeath to my brother £4000 in 
 trust for my sisters on condition that they will support Maria Moore, 
 at the demise of either or any of the above " (sisters), " the survivor or 
 survivors to receive the increased income procured thereby. They are 
 hereby enjoined to take care of my nephew John Cahill as may seem 
 best in the future." There was no residuary gift in the will. It was 
 held that the sisters took absolutely as joint tenants, subject to the 
 condition of supporting Maria Moore, but that there was no trust, 
 precatory or other, in favour of John Cahill. 
 
 In In re Biggies, Gregory v. Edmondson (39 Ch. Div. 253), where a 
 testatrix gave all her property, real and personal, to her daughter, 
 adding, " It is my desire that she allows to Anne Gregory an annuity 
 of £25 during her life," it was held that there was an absolute gift 
 to the daughter, and that there was no trust or obligation imposed upon 
 her to pay the annuity. One of the Lord Justices in delivering 
 judgment said, " The later cases have established the reasonable rule 
 that the Court is to consider in each particular case what was the 
 testator's intention. Construing this will according to the ordinary 
 use of the English language, I think that the testatrix did not mean 
 to tie up her whole property during the life of Anne Gregory, but 
 to give it absolutely to her daughter, trusting to her affection and 
 honour to make such allowance to Anne Gregory as she mentioned in 
 her will." 
 
 With regard to the law on this subject as settled by the modern 
 authorities, Cotton, L.J., in his judgment in the leading case, made 
 the following important observations : — " I have no hesitation in saying 
 myself, that I think some of the older authorities went a great deal too 
 far in holding that some particular words appearing in a will were 
 sufficient to create a trust. Undoubtedly confidence, if the rest of the 
 context shows that a trust is intended, may make a trust, but what 
 we have to look at is the whole of the will which we have to construe, 
 and if the confidence is that she will do what is right as regards 
 the disposal of the property, I cannot say that that is, on the true 
 construction of the will, a trust imposed on her. Having regard to 
 
22 
 
 GIFT OR DECLARATION OF TRUST. 
 
 No preca- 
 tory trust 
 if any 
 vagueness. 
 
 the later decisions, we must not extend the old cases in any way, or 
 rely upon the mere use of any particular words, but, considering all 
 the words which are used, we have to see what is their true effect, 
 and what was the intention of the testator as expressed in his will." 
 To this Lindley, L. J., after quoting from the judgment in the Mussoorie 
 Bank v. Raynor the passage cited above, added : "lam very glad to 
 say that the current has changed, and that the beneficiaries are not to 
 he made trustees unless intended to be so by the testator." 
 
 In In re Hamilton, Trench v. Hamilton ([1895] 2 Ch. 370), a testa- 
 trix gave legacies to two nieces " for their sole and separate use and to 
 be independent of their husbands, and I wish them to bequeath the 
 same equally between the families of" (a nephew and a niece) " in such 
 mode as they shall consider right." The Court of Appeal, affirming the 
 decision of Kekewich, J., held that no precatory trust was created ; and 
 Lindley, L. J„ after citing the above-cited passage from the judgment of 
 Cotton, L.J. (which appeared in the second edition of this work), 
 declared that that was " a far sounder principle of construction than the 
 arbitrary rule laid down in Malim v. Keighley.'' 
 
 /]- 2Cl.fl/2. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 Gift or Declaration of Trust. 
 
 RICHARDS v. DELBRIDGE. 
 
 (L. R. 18 Eq. 11). 
 
 In order to render a voluntary gift or settlement 
 valid, there must he what amounts to either (1) a com- 
 plete transfer of the property beneficially or in trust, 
 or (2) a valid declaration of trust. 
 
 John Delbridge was possessed of a mill held under a 
 lease, and also of certain plant, machinery, and stock-in- 
 trade belonging to it, and shortly before his death he 
 indorsed on the lease and signed the following memo- 
 randum : — 
 
 " 7th March, 1873. 
 
 " This deed and all thereto belonging I give to Edward 
 Benetto Eichards from this time forth, with all the stock- 
 in-trade. 
 
 "John Delbridge." 
 
GIFT OB DECLARATION OF TBTJST. 23 
 
 Richards was an infant at the time of the execution of 
 the memorandum, and Delbridge delivered the lease to 
 the infant's mother on his behalf. 
 
 Held, that there was no valid declaration of trust of the 
 property in favour of E. B. Eichards. 
 
 Attempts to construe a gift as a declaration of trust are due to the Principles 
 fact that except in cases under sect. 7 of the Statute of Frauds ofthese 
 (see below, Note II.) no form is requisite to make one's self a trustee 
 for a beneficiary. If it is desired to make any one else (see below, 
 Note I.) trustee for a beneficiary the same rule applies, subject to 
 a necessity to transfer the property to the trustee. If such 
 transfer is incomplete, equity will not make it complete, where the 
 cestuis que trustent are volunteers. The formlessness of trusts may be 
 illustrated by the following observations made by Lord Selborne, L.O., 
 in Lyell v. Kennedy (14 App. Cas. 437, 457) : — " A man who receives 
 the money of another on his behalf, and places it specifically to an 
 account with a banker ear-marked and separate from his own moneys, 
 though under his coutrol, is, in my opinion, a trustee of the fund 
 standing to the credit of that account. For the constitution of such a 
 trust no express words are necessary ; anything which may satisfy a 
 Court of Equity that the money was received in a fiduciary character 
 is enough. It is not requisite that any acknowledgment of such a 
 trust should be made to the cestuique trust or his agent; to whomso- 
 ever made it is evidence against the trustee.'' 
 
 The attempt to pass off an imperfect gift as a perfect trust failed in 
 Richards v. Delbridge for reasons which Jessel, M.B., stated thus : 
 " A man may transfer his property without valuable consideration in 
 one of two ways. He may either do such acts as amount in law to a 
 conveyance or assignment of the property, and thus completely divest 
 himself of the legal ownership, in which case the person who by those 
 acts acquires the property, takes it beneficially or on trust, as the case 
 may be, or the legal owner of the property may by one or other of the 
 modes recognized as amounting to a valid declaration of trust consti- 
 tute himself a trustee, and without an actual transfer of the legal title, 
 may so deal with the property as to deprive himself of its beneficial 
 ownership, and declare that he will hold it from that time forward on 
 trust for the other person. It is true he need not use the words ' I 
 declare myself a trustee,' but he must do something which is equiva- 
 lent to it and use expressions which have that meaning, for however 
 anxious the Court may be to carry out a man's intention, it is not at 
 liberty to construe words otherwise than according to their proper 
 meaning." He then cited Lord Justice Turner's words in Milroy v. 
 Lord (4 D. F. & J. 264), as summing up the whole law upon the 
 subject: "The cases, I think, go further to this extent, that if the 
 
24 
 
 GIFT OR DECLARATION OF TRUST. 
 
 Handing 
 over of 
 deeds. 
 
 Heartley v, 
 Nicholsmi. 
 
 An incom- 
 plete gift 
 of shares. 
 
 settlement is intended to be effectuated by one of the modes to which 
 1 have referred, the Court will not give effect to it by applying 
 another of those modes. If it is intended to take effect by transfer, 
 the Court will not hold the intended transfer to operate as a declara- 
 tion of trust, for then every imperfect instrument would be made 
 effectual by being converted into a perfect trust." 
 
 There had been some conflict of authority before Richards v. 
 Delbridge was decided (see 18 Bq., p. 13); since its decision it has 
 been often followed. 
 
 Thus in Shillito v. Eobson (30 Ch. D. 396) and In re Hancock (57 
 L. J. Ch. 792) the handing over of a mortgage deed, and in Bottle v. 
 Knocker (46 L.J. Ch. 159) of an agreement for a lease effected neither 
 a gift nor a trust. 
 
 In Heartley v. Nicholson (19 Eq.233), Mr. Nicholson, on the 11th of 
 February, 1865, wrote to the plaintiff, his daughter, as follows: — "I 
 have another present to make shortly — one share of Eyhope Colliery, 
 and you may now consider that you have this yourself from 2nd of 
 January to receive dividends upon. I am also giving to Sarah one, the 
 same." On the 17th Mr. Nicholson attended a meeting of shareholders 
 and signed the following entry in the minute book : — " That Mr. N.'s " 
 (his own) "proposition of transferring two of his shares to the parties 
 undernamed be agreed to, viz." (the plaintiff and her sister). It was ad- 
 mitted that this signature was not sufficient, to pass the property in the 
 shares. On the 25th of February he again wrote to the plaintiff: — "I 
 have arranged and made all right with the shares for you and Sarah, and 
 dividends will be sent from the 2nd of January." On the 4th of March 
 the testator wrote to the plaintiff : — " Next meeting (private) we will be 
 enabled to make another dividend, when you and Sarah will be informed ." 
 On the 16th of March he sent the plaintiff a cheque for the first dividend 
 with a letter thus : — " Herewith I enclose cheque for £37 10s., which 
 you can receive at the bank . . . first dividend made this day.'' On 
 the 18th of March he again wrote to the plaintiff, as follon s : — " I have 
 yours in reply to the receipt of dividend — long may you live to enjoy 
 it; " and in the same letter, after referring to the meeting of the 17th 
 of January, he further said, " Well, when I got in, I openly at once 
 asked the question, in the presence of" (four persons whom he named), 
 " I was about to give to my two daughters one share each, and which 
 is the way to do it ? They were all pleased. It was entered in the 
 minutes of the book." The decision of the Court was that these 
 expressions in letters, this signature of minutes, and gilt of dividend, 
 did not amount to a declaration by the testator nor to proof of an 
 intention and determination on his part that he would hold the share for 
 the plaintiff. Bacon, V.C., in delivering judgment, said that it was 
 perfectly clear that no perfect transfer had at any time been made by 
 Mr. Nicholson. On the other hand, it was not less clear that he 
 intended to give, and on the 11th of February believed that he had 
 given, the share in question to his daughter. " It is, however," the 
 Vice-Chancellor continued, " established as unquestionable law that 
 
GIFT OB DECLAMATION OF TRUST. 25 
 
 this Court cannot by its authority render that gift perfect which 
 the donor has left imperfect, and it will not and cannot convert an 
 imperfect gift into a declaration of trust merely on account of that 
 imperfection. ... It is not necessary that the declaration of a trust 
 should be in terms explicit. But what I take the law to require is 
 that the donor should have evinced by acts which admit of no other 
 interpretation that he himself had ceased to be, and that some other 
 person had become, the beneficial owner of the subject of the gift 
 ■or transfer, and that such legal right to it (if any) as he retained was 
 held by him in trust for the donee." Compare Moore v. Moore (18 Bq. 
 474) and In re Shield, Pethybridge v. Burrow (53 L. T. 5). 
 
 In In re Caplen's Estate, BuTbech v. Silvester (45 L. J. Ch. 280), An incom- 
 which came before Jessel, M.E., in 1876, the facts were as follows:— plete trans 
 A Mrs. Caplen had lent a Mr. Stening £300 on his promissory ["sto 
 note, payable on demand. She told him that after her death 
 she wanted him to hold the £300 for the benefit of her sister 
 and sister's daughters, and directed him after her death to pay the 
 interest on the £300 to her sister for her life, and afterwards to divide 
 the principal sum among her sister's children. Mrs. Caplen received 
 the interest during her life, and made no demand for payment of the 
 note, and it was found by her executors among her papers, uncancelled, 
 after her death. The question to be determined was whether a trust 
 was created as to the £300. Jessel, M.K., in delivering judgment, 
 said, "The evidence does not satisfy me that Mrs. Caplen intended to 
 •create an irrevocable trust. Whether she did or not, it is clear that at 
 law she remained owner of the note, and did not therefore create a 
 complete trust. I think, however, that a mere agreement on the part 
 of the debtor to apply the money according to the direction of the 
 creditor will not do. There is no magic in words, and, as I explained 
 in Richards v. Delbridge, a man may make himself a trustee in so 
 many words, but he must do something or other that is equivalent to 
 declaring that he is a trustee. In McFadden v. Jenkyns (1 Ph. 153) 
 Lord Cottenham certainly said, ' The testator in directing Jenkyns to 
 hold the money in trust for the plaintiff, which was assented to and 
 acted upon by Jenkyns, impressed, I think, a trust upon the money 
 which was complete and irrevocable.' But I do not think that applic- 
 able to the present case, where there is nothing to show that the 
 ■owner of the note intended to part with her legal title to the money." 
 On the other hand, in In re Bichards, Shenstone v. Brock (36 Ch. D. 
 541), it was held that a trust was constituted ; but see observations of 
 the Court of Appeal on this decision, In re Whitaker (42 Ch. D. 119). 
 
 Until the Married Women's Property Act, 1882, the broad rule was Husband 
 that a husband could not make a gift to his wife except of parapher- and w " e - 
 nalia or under some mercantile custom. The following cases do not 
 therefore apply to gifts subsequent to that Act : — 
 
 In Baddeley v. Baddeley (9 Ch. D. 113), a husband, after reciting 
 in a deed poll that he was beneficially entitled to the ground-rents 
 thereby intended to be settled, assigned them to his wife as though 
 
26 
 
 GIFT OR DECLARATION OF TRUST. 
 
 Equitable 
 assign- 
 ments on 
 trusts. 
 
 she were a single woman, and it was held that this amounted to a 
 declaration of trust, and the Court ordered it to be carried into effect. 
 This decision was followed in Fox v. Hawks (13 Ch. D. 822) ; but since 
 the decision in In re Breton, Breton v. Woolven (17 Ch. D. 416), can 
 no longer be considered good law. In In re Breton a husband wrote 
 and signed three papers and handed them to his wife, by which he 
 purported to give her certain furniture, plate, and other articles. 
 Hall, V.C., reviewed the previous authorities, including Baddeley v. 
 Baddeley and Fox v. Hawks, and decided that the imperfect gift of 
 furniture, etc., did not take effect as a declaration of trust, but formed 
 part of the husband's estate. He was very sorry so to decide, because 
 it was a monstrous state of the law that prevented effect beiDg given to 
 the gift. The law was laid down in Milroy v. Lord {supra) that it must 
 be plainly shown that it was the purpose of the settlement or the in- 
 tention of the settlor to constitute himself a trustee. " In the present 
 case," said Hall, V.C., "it is clear that it was not so intended. It 
 was not the purpose or meaning of the husband in writing these 
 letters to constitute himself a trustee for his wife. I can well under- 
 stand in such a case a husband saying to his wife, ' I mean to give 
 you this as your own, but when you ask me to be a trustee for you, I 
 must respectfully decline. 1 do not want to be involved in a trust of 
 that kind or in any trust.' " 
 
 With regard to assignments on trust, there are two classes of cases 
 which have occasioned much difficulty — (1) where the property is a 
 legal interest incapable of legal transfer ; (2) where the property is an 
 equitable interest. 
 
 (1) The first class of cases is now of less importance, as by sect. 25, 
 sub-sect. 6, of the Judicature Act, 1873 : — "Anj r absolute assignment, 
 by writing under the hand of the assignor (not purporting 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 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." See In re 
 King (14 Ch. D. 179), tlie authority of which is doubted by Lewin 
 (9th ed. p. 71). In In re Patrick, Bills v. Tatham ([1891] 1 Ch. 82), 
 distinguishing Fortescue v. Barnett (3 My. & K. 36), an assignment of 
 debts was upheld, although notice was not given to the debtor of the 
 assignment, and the documents securing the debts were not expressly 
 assigned. Compare Walker v. Bradford Old Bank (12 Q. B. D. 511). 
 Contrast Wigram, v. Buckley ([1894] 3 Ch. 483, 491) (a case on 
 priorities). See post, p. 215. 
 
 (2) The law as to the latter class of cases may be considered as settled 
 
GIFT OR DECLARATION OF TRUST. 27 
 
 by Shane v. Cadogan (Appendix to Sug. Vend, and Purch.), Kekewich 
 v. Manning (1 De G. M. & G. 188), and Donaldson v. Donaldson 
 (1 Kay, 711). "Suppose," said Knight Brace, L.J., in Kekewich v. 
 Manning, " stock or money to be legally vested in A. as a trustee for 
 B., for life, and, subject to B.'s interest, for C. absolutely : surely it 
 must be competent to C. in B.'s lifetime, with or without the consent 
 of A., to make an effectual gift of C.'s interest to D. by way of pure 
 bounty, leaving the legal interest and legal title untouched. If so, 
 can C. do this better or more effectually than by executing an assign- 
 ment to D.? " The principles to be collected from this class of cases 
 with regard to voluntary transfers are that the settlor must do all he 
 can, but that as soon as that is done a binding trust is created ; and 
 see on this subject Lewin on Trusts (9th ed. pp. 72 et seq.). Similarly, 
 in the subsequent case of Nanney v. Morgan (37 Ch. D. 346, 353) the 
 law was stated by the Court of Appeal as follows : — " The law as 
 regards voluntary settlement is this. If the settlor transfers all the 
 interest that he is in a position to transfer at that time, then it is 
 effectual. If he does not, then the Court will not assist volunteers as 
 against the settlor, and the settlement is ineffectual as regards that 
 which he might have effectually transferred, and which he did not 
 transfer as effectually as he could ; " and an assignment of an equitable 
 estate in stocks and shares was held valid. On the other hand, in 
 Green v. Paterson (32 Ch. D. 95) the Court of Appeal proceeded 
 "on the well-known rule that although a voluntary settlement, if 
 perfected, will be enforced by the Court, yet if it is not perfected, 
 and there is anything to be done in order to give effect to it, the 
 Court will not interfere, although it will do so in all cases where 
 the settlement is one which the parties claiming execution of it can 
 say is for valuable consideration as regards them,' 1 and refused to 
 interpret a covenant to surrender an equitable interei-t in copyholds as an 
 assignment upon trust. Compare In re Earl o/Lucan (45 Ch. D. 470). 
 
 When once a trust or a transfer upon trust is complete, it is called When 
 an executed trust, and although in favour of volunteers, cannot be 8'™ ' 0I 
 revoked: Paul v. Paul (20 Ch. D. 742); but so long as the matter rev ocable. 
 rests in intention or the transfer is incomplete there is a locus 
 pmnitentice: In re Sykes (2 J. & H. 415). 
 
 The belief that deeds of trust in favour of volunteers will be set Power of 
 aside or rectified if they do not contain a power of revocation was dis- revocation, 
 pelled in Sail v. Sail (L. B. 8 Ch. 430), where it was held that the 
 mere absence of a power of, revocation, even if the attention of the 
 settlor was not called to that absence, does not make a voluntary 
 settlement invalid, but that these are merely circumstances to be taken 
 into account. Welman v. Welman (15 Ch. D. 570) may be questioned : 
 and compare Bonhote v. Senderson ([1895] 2 Ch. 202). In Senry v. 
 Armstrong (18 Ch. D. 668), the principle was laid down as follows : — 
 " The law is that anybody of full age and sound mind who has executed 
 a voluntary deed by which he has denuded himself of his own property, 
 is bound by his own act, and if he himself comes to have the dee 1 
 
28 
 
 GIFT OR DECLARATION OF TRUST. 
 
 What is a 
 voluntary 
 settlement. 
 
 Who may 
 be trustees. 
 
 Aliens. 
 
 Bankrupts. 
 
 Corpora- 
 tions. 
 
 Married 
 women. 
 
 set aside — especially if he comes a long time afterwards — he must 
 prove some substantial reason why the deed should be set aside." See 
 also James v. Couchman (29 Oh. D. 212). 
 
 It should be borne in mind that almost any consideration will be 
 sufficient to induce the Court not to treat a settlement as, voluntary 
 "as long as there is some consideration, and in the absence of fraud. 
 The Court does not inquire — does not ' weigh in golden scales,' as the 
 phrase is — the consideration which has passed : " Harris v. Tubl (42 
 Ch. D. 79, 83), where the authorities are collected, and Price v. 
 Jenkins (5 Ch. D. 619) followed. See Hewison v. Negus (16 Beav. 
 594); Townend v. Taker (L. R. 1 Ch. 446); Bayspoole v. Collins 
 (L. R. 6 Ch. 228) ; Teasdale v. Braithwaite (5 Ch. D. 630) ; In re 
 Foster and Lister (6 Ch. D. 87). But see Shurmur v. Sedgwick, 
 Crossfield v. Shurmur (24 Oh. D. 597), where it was held that the 
 settlement was voluntary; and for an elaborate discussion of the 
 subject of voluntary settlements, see Davidson (3rd ed. vol. iii. p. i. 
 p. 668), and Cameron v. Wells (37 Ch. D. 32) ; Be Mestre v. West 
 ([1891], A. C. 264). See post, p. 56. 
 
 Note I. 
 
 Aliens may be trustees, as now by 33 & 34 Vict. c. 14, they can 
 take, hold, and dispose of real and personal property in this country, 
 but an objection to their appointment exists in the fact that if 
 domiciled abroad they are not subject to the jurisdiction of the Court. 
 
 Bankrupts may be appointed trustees, but bankruptcy is a ground 
 for removal of a trustee : In re Barker's Trusts (1 Ch. D. 43) ; In re 
 Adams' Trusts (12 Ch. D. 634) ; In re Hopkins (19 Ch. D. 61, 63) ; and 
 see as to appointment of new trustee, Bankruptcy Act, 1883 (s. 147); 
 and when a receiving order is made against a trustee in bankruptcy he 
 vacates his office : Bankruptcy Act, 1883 (s. 85). 
 
 A corporation under the old law could not be seised to a use, because, 
 as Mr. Lewin quaintly puts it, " It was gravely observed it had no 
 soul, and how then could any confidence be reposed in it ? " But that 
 has long since ceased to be the case : Attorney- General v. Landerfield 
 (9 Mod. 286) and Goodman v. Mayor, etc., of Saltash (7 App. Cas. 
 633) ; and it is expressly provided by sects. 133 and 134 of the Muni- 
 cipal Corporations Act, 1882 (45 & 46 Vict. c. 50), that bodies corporate 
 of boroughs in certain cases are trustees. 
 
 A married woman may be a trustee (and see sect. 18 of the Married 
 Women's Property Act, 1882 (45 & 46 Vict. c. 75), under which a 
 married woman trustee can sue or be sued without her husband, and 
 In re Docwra (29 Ch. D. 693)) ; but it is not expedient that she 
 should be appointed. The Court formerly declined to appoint a feme 
 sole trustee, but in the case of In re Campbell's Trusts (31 Beav. 176) 
 a feme sole who was in all other respects unexceptionable, was pro- 
 posed as trustee, and the then Master of the Rolls, after consulting the 
 other judges, made an order appointing her one of the trustees: In re 
 Peake's Settled Estates ([1894] 3 Ch. 520). In the case of In re 
 
GIFT OR DECLARATION OF TRUST. 
 
 29 
 
 Berkeley (L. E. 9 Ch. 720), a married lady who was a relation of the 
 cestui que trust was appointed a trustee, as no other suitable person 
 could be found who was willing to undertake the office. 
 
 An infant may but ought not to be appointed a trustee. 
 
 The Court, as a general rule, is disinclined to appoint either a cestui 
 que trust or solicitor to a cestui que trust or a relative, although there 
 is no positive legal objection to such appointments ; but as there is 
 often great difficulty in obtaining proper trustees, such appointments 
 are occasionally approved: Forster v. Abraham (17 Eq. 351, 354); 
 Tempest v. Lord Oamoys (58 L. T. 221); In re Norris, Allen v. 
 Norris (27 Ch. D. 333) ; In re Knowles 1 Settled Estates (27 Ch. D. 
 707); In re Kemp's Settled Estates (24 Ch. D. 485) ; In re Earrop's 
 Trusts (24 Ch. D. 717); In re Marquis of Ailesbury (1893, 2 Ch. 345, 
 360); In re Earl of Stamford, Payne v. Stamford (1896, 1 Ch. 
 288, 298) ; In re Lightbody's Trusts (33 W. E. 452). See as to the 
 appointment of trustees out of the jurisdiction, and the remuneration 
 of the acting trustee, who was in England, In re Freeman's Settlement 
 Trusts (37 Ch. D. 148). 
 
 A trustee cannot be appointed by himself : In re Newen, Newen v. 
 Barnes (1894, 2 Ch. 297, 309). 
 
 The Bank of England cannot be made a trustee. 
 
 By 45 & 46 Vict. c. 51 {The Government Annuities Act, 1882, sect. 8), 
 the National Debt Commissioners and Savings Banks are not to receive 
 any notice of any trust " express, implied, or constructive," except trusts 
 recognized by law in relation to deposits in savings banks and trusts 
 provided by Acts relating to the property of married women. 
 
 The Trustee Act, 1893 (56 & 57 Vict. c. 35, sects. 10-13, 20-22, 
 and 37), contains important provisions with regard to the appointment 
 of new trustees. Sect. 12 enables " a vesting declaration " to be made, 
 by means of which the trust property vests in the new trustees with- 
 out any conveyance or assignment. The declaration is to be made — 
 
 (1) By the appointor, in case of an appointment of a new trustee ; 
 
 (2) By the retiring and continuing trustees, and by the other person, 
 
 if any, empowered to appoint trustees in case of the discharge 
 
 of a retiring trustee under the Act. 
 But a vesting declaration does not apply and a vesting order must be 
 obtained for " any legal estate or interest in copyhold or customary 
 land, or to land conveyed by way of mortgage for securing money 
 subject to the trust, or to any such share, stock,, annuity, or property 
 as is only transferable in books kept by a company or other body, or 
 in manner directed by or under Act of Parliament." 
 
 Sect. 10 (2) (b) provides that " On an appointment of new trustees 
 for the whole or any part of the trust property, a separate set of 
 trustees may be appointed for any part of the trust property held on 
 trusts distinct from those relating to any other part or parts of the 
 trust property, notwithstanding that no new trustees or trustee are or 
 is to be appointed for other parts of the trust property, and any existing 
 trustee may be appointed or remain one of such separate set of trustees ; 
 
 Infants. 
 
 trusts and 
 relatives. 
 
 Self. 
 
 Bank ot 
 England 
 and 
 various. 
 
 Appoint- 
 ment of 
 new 
 trustees 
 under 
 Trustee 
 Act, 1893. 
 
30 GIFT OR DECLARATION OF TRUST. 
 
 or if only one trustee was originally appointed, then one separate 
 trustee may be so appointed for the first-mentioned part." 
 
 In In re Hetherington's Trusts (34 Ch. D. 211) and In re Moss 1 
 Trusts (37 Ch. D. 513), separate sets of trustees were appointed for 
 different parts of the property, the trusts whereof, though separate for 
 the time, might eventually coalesce. See Wolstenholme's Convey- 
 ancing, etc., Acts (7th ed., pp. 202 et sea.). 
 
 Note II. 
 
 Statute of Before the Statute of Frauds (29 Car. II. c. 3), trusts of every 
 Frauds, ss. species of property were averrable, i.e. they might be created or trans- 
 ' ' ' ferred by parol, but now the 7th section of the Statute of Frauds 
 provides that all declarations of trusts of freehold, copyhold, and lease- 
 hold hereditaments shall be " manifested and proved by some writing 
 signed by the party who is by law enabled to declare such trust, or by 
 his last will in writing, or else they shall be utterly void and of none 
 effect." It was held in Kronheim v. Johnson (7 Ch. D. 60), following 
 Tierney v. Wood (19 Beav. 330), that the person who is by law 
 enabled to declare a trust is the beneficial owner only. In Dye v. Dye 
 (13 Q. B. D. 147) it was held that in order that the fee simple of an 
 intended wife should be affected with a trust for her separate use by 
 an agreement between the intended husband and wife before marriage, 
 it was necessary that the agreement should be signed by the wife as 
 well as the husband ; but this decision would be inapplicable to persons 
 married after January 1st, 1883. 
 
 It is to be noticed that the statute says "manifested and proved by 
 some writing,'' and accordingly the requirements of the statute are 
 satisfied if the trust can be manifested and proved by any subsequent 
 acknowledgment by the trustee, as by an express declaration, a memo- 
 randum, a letter, an affidavit, or by a recital in a bond or deed, and the 
 trust, however late the proof, operates retrospectively from the time 
 of its creation. See Lewin on Trusts (9th ed. p. 55) ; Middleton v. 
 Pollock (4 Ch. D. 49) (estoppel); In re Duke of Marlborough ([1894] 
 2 Ch. 133, 141) (fraud) ; James v. Smith ([1891] 1 Ch. 384) (pleading). 
 The next section, the 8th, excepts all trusts arising or resulting by 
 implication or construction of law, or transferred or extinguished by 
 act or operation of law. See In re Lulham (33 W. R. 788) ; In re Scott 
 ([1891] 1 Ch. 298). Sect. 9 provides the&all grants and assignments 
 of any trust or confidence shall be in writing signed by the party 
 granting or assigning the same or by his last will. 
 For sect. 4, see post, p. 292. 
 
DONATIO MORTIS CAUSA. 3L 
 
 Donatio mortis causd. 
 
 In re MEAD, AUSTIN v. MEAD. 
 
 (15 Ch. D. 651.) 
 
 A gift of a hill of exchange payable to self or order Principle 
 is valid as a donatio mortis causa though unindorsed 
 and though it does not fall due until after the donor's 
 death, but a gift of the donor's own cheque if not 
 payable until after his death is not valid as a donatio 
 mortis causa. 
 
 Mead had in his possession two bills of exchange Summary- 
 
 payable to himself or order, and a banker's non-trans- 
 ferable deposit note for £2700, which required seyen 
 days' notice of withdrawal. Two days before his death, 
 Mead, desiring to give £500 to his wife, signed the 
 notice of withdrawal and sent it to the bank. He 
 then signed a form of cheque which was on the back of 
 the deposit note, " Pay self or bearer £500," and handed 
 it and the two bills of exchange unindorsed to his wife. 
 
 The practice of the bank on withdrawal of part of a 
 deposit was to give a fresh deposit note for the balance. 
 Held, that there had been a valid donatio mortis causd of 
 the bills of exchange but not of the cheque. 
 
 of facts. 
 
 The principle upon which In re Mead was decided was thus ex- The prin- 
 pressed in the somewhat similar case of In re Dillon, Duffin v. Duffin ciple an 
 (44 Ch. D. 76) : " The delivery gives no legal title to the donee, nor ^that™ 
 did the delivery of the security in Duffield v. Elwes ; but the House of Bichards v. 
 Lords there laid it down that the executors were trustees for the Delbridge. 
 donee, and must do what was necessary to perfect the transfer. This 
 would not be so in the case of an incomplete voluntary gift inter vivos — 
 the Court would not interfere to compel either the donor or his 
 
32 
 
 DONATIO MORTIS CAUSA. 
 
 As applied 
 to bills and 
 cheques in 
 the leading 
 
 and in a 
 very close 
 parody of 
 the leading 
 case, 
 
 and in the 
 case of 
 cheque to 
 donor's 
 order, un- 
 indorsed, 
 
 and in a 
 question- 
 able case. 
 
 executors to perfect it." See Richards v. Delbridge (ubi supra). " The 
 doctrine is an anomalous one, peculiar to the case of a donatio mortis 
 causa : " per Cotton, L.J. (p. 82). The gift of the bills, though unin- 
 dorsed, was held to be good on the authority of Veal v. Veal (27 Beav. 
 303). With regard to the cheque for £500, part of the deposit note for 
 £2700, Pry, J., said : " The authorities stand in this way. A gift of a 
 banker's deposit note, with the view of giving to the donee the whole 
 sum secured by it, has been held to be a good donatio mortis causa. A 
 gift of a cheque upon a banker, the cheque not being payable during 
 the donor's life, has been held to be not a good donatio mortis causa. 
 To which of these two classes of decisions does the present case belong ? 
 In my judgment it belongs to the latter class. The effect of the notice 
 of withdrawal given by the testator to the bank on the 23rd of May 
 was to set free a fund of £2700 upon the 30th of May, and upon that 
 fund the testator drew a cheque of £500, which was not payable till 
 that day, i.e. after his death. Looking at the whole of the circum- 
 stances of the case, and at the practice of the bank, which was to give a 
 fresh deposit note for the balance when a part of the money was with- 
 drawn, it does not appear to me that the delivery of the note was made 
 with the intention of giving either it or the money to the wife. The 
 intention was to deliver the cheque, and according to the authorities 
 that is not a good donatio mortis causa." 
 
 In the case of In re Dillon, Duffln v. Duffin (ubi supra), James 
 Dillon, the holder of a banker's deposit note, in his last illness, and 
 very shortly before his death, took the note out of his chest, and said 
 to his sister-in-law, Emma Duffin, who was attending him: "I am 
 going to give it to you, conditionally. If I get well, you will give it 
 me back; if not, you are all right." On the back of the note was a 
 form of cheque which James Dillon filled in by inserting the date and 
 amount — £580. No other person was present at the transaction. It 
 was decided by the Court of Appeal that there was a, valid donatio 
 mortis causa. This was distinguished from In re Mead on the ground 
 that the cheque was filled in for the whole amount. 
 
 In Clement v. Cheesman (27 Ch. D. 631), Chitty, J., cited with 
 approval Byles on Bills (15th ed. p. 200), " that a cheque drawn by the 
 donor upon his own banker cannot he the subject of a donatio morti* 
 causa, because the death of the drawer is a revocation of the banker's 
 authority to pay." Compare Bills of Exchange Act, 1882 (45 & 46 
 Vict. c. 61 s. 75) ; Hewitt v. Kaye (L. R. 6 Eq. 198) ; Btah v. BeaJc 
 (13 Eq. 489) ; but see remarks of Lindley, L. J., in In re Dillon, at p. 83. 
 In Clement v. Cheeseman cheques to order drawn by another man, and 
 given unindorsed by way of donatio mortis causa, were classed with 
 any other bill of exchange. Similarly a donor may give his cheque to 
 a stranger, who gives his to donor's wife : Bouts v. Ellis (4 D. M. & 
 Gr. 249). 
 
 In Rolls v. Pearce (5 Ch. D. 730) the donor, who was then in 
 Italy, drew two cheques on a London bank to bis wife's crder ami 
 gave them to her. The wife indorsed the cheques, and paid them into 
 
DONATIO MORTIS CAUSA. 
 
 33 
 
 a foreign bank. The bank negotiated the cheques in the ordinary 
 course of business, but they were not presented for payment at the 
 London bank until after the donor's death. As the cheques were pay- 
 able to order, and the donor knew that they could not be presented for 
 payment either on the day they were drawn, or on the subsequent day, 
 Malins, V.C., following Tate v. Eilbert (2 Ves. Ill), held that an 
 actual dealing for value with a note would make the gift valid, and 
 that there was a good donatio mortis (?) causa of both cheques. 
 
 In the case of In re William Hughes (36 W. E. 821), a testator who had 
 by his will given his wife the income of his property, signed, when in 
 anticipation of death, the following document : — ■" March 1st, 1887. I 
 give all my insurance money that is coming to me to my wife Hannah 
 for her own use, as well as £200 in the bank. This is my wish." This 
 document was attested by only one witness, and was at testator's 
 request placed with his will, and remained there until his death in the 
 following month. Evidence was admitted as to the circumstances 
 attending the execution of the document. The Court of Appeal 
 decided that the document was intended as a testamentary instrument, 
 and could not take effect as a donatio mortis causa. And there was 
 a further reason, "the subject of this alleged gift was not property the 
 title to which or the evidence of title to which passes by delivery, to 
 which property alone, speaking generally, the doctrine of donatio 
 mortis causa applies." 
 
 The English law concerning donatio mortis causa, is based upon the 
 Civil Law. The following is the definition given by Justinian, Inst. 
 lib. 2, tit. 7, 1 : " Mortis causa, donatio est, qum propter mortis fit 
 suspicionem ; cum guis ita donat ut, si quid hwmanitus ei contigisset, 
 haberet is qui accepit ; sin autem supervixisset is qui donavit, reciperet, 
 vel si eum donationis pmnituisset, aut prior decesserit is cui donatum 
 sit. Hoe mortis causa donationes ad exemplum legatorum redactor sunt 
 •per omnia." 
 
 There are three essentials of a donatio mortis causa : — 
 
 1. The gift must he with a view to the donor's death. 
 
 2. There must be an express or implied intention that the gift should 
 only take effect on the donor's decease by his existing disorder. 
 
 3. There must be delivery of the subject-matter by the donor himself 
 to the donee or some one on behalf of the donee. 
 
 A donatio mortis causa resembles a legacy, and differs from a gift 
 inter vivos in the following respects : — (1) It is ambulatory and incom- 
 plete during the donor's life. It may be revoked by resumption or by 
 the recovery of the donor from the same illness. It cannot, however, 
 be revoked by a subsequent will, though it may be satisfied by a 
 legacy. (2) It might always have been made to the wife of the donor 
 but this distinction since the Married Women's Property Act came 
 into force no longer exists. (3) There must be delivery. (4) It is 
 subject to estate duty under the Finance Act, 1894, s. 2 (1) (c), and 
 was subject to account duty under the Customs and Inland JRevenue 
 Act, 1881, s. 38 (2) ; a donatio inter vivos more than twelve months 
 
 D 
 
 An imper- 
 fect will 
 is not a 
 D.M.C. 
 
 Origin in 
 
 Roman 
 law. 
 
 Essentials 
 of a donatio 
 mortis 
 causa. 
 
 Compared 
 with a 
 legacy and 
 donatio 
 inter vivos. 
 
34 
 
 EXECUTORY TRUSTS. 
 
 Banknotes. 
 
 Bonds. 
 
 Deposit 
 note. 
 
 Mortgage. 
 
 Policy of 
 insurance. 
 
 Receipt for 
 money. 
 
 before the donor's death escapes duty. (5) It is liable for debts on 
 deficiency of assets. 
 
 A donatio mortis causa, on the other hand, differs from a legacy in 
 the following respects : — (1) It does not require probate, as it takes effect 
 at once sub modo (i.e. conditionally). (2) It requires no assent from 
 the executor or administrator to perfect the donee's title. See Williams 
 on Executors, 9th ed. 681 et seq. ; Roper on Legacies, ch. i. 
 
 Gifts by way of donatio mortis causa have been also held valid in 
 the following instances : — 
 
 Banknotes. — Shanley v. Harvey (2 Ed. Rep. 125); Ashton v. 
 Dawson (Sel. Ch. Cas. 14) ; Miller v. Miller (3 P. Wms. 356); Hill v. 
 Chapman (2 Bro. C. C. 612). 
 
 Bonds. — Snellgrove v. Baily (3 Atk. 214) ; Duffield v. Elwes 
 (1 Bligh, N.S. 497). 
 
 Deposit note given by a bank to the donor. — Amis v. Witt (33 Beav. 
 619); Moore v. Moore (L. R. 18 Eq. 474);: In re Taylor (56 L. J. Ch. 
 597) ; In re Farman (57 L. J. Ch. 637) ; Dunne v. Boyd (8 1. R. Eq. 
 609) ; Cassidy v. Belfast Banking Co. (22 L. R. Ir. 68). 
 
 Keys as affording the means of obtaining possession of the thing 
 given. — Ward v. Turner (2 Ves. Sen. 431, 443) ; Jones v. Selby (Prec. 
 Ch. 300) ; Smith v. Smith (2 Stra. 955) ; In re Mustapha, Mustapha v. 
 Wedlahe ([1891] W. N. p. 201). 
 
 Mortgage. — Richards v. Syms (Barnard. Ch. Cas. 90); Hurst v. 
 Beach (5 Madd. 351) ; Duffield v. Elwes (1 Bligh, N.S. 497). 
 
 Policy of insurance.— Witt v. Amis (1 Best & Sm. 109) ; Amis v. 
 Witt (33 Beav. 619). 
 
 Receipt for money. — Moore v. Darton (4 De Ch & Sm. 517). 
 
 Executory Trusts. 
 
 SACKVILLE-WEST v. VISCOUNT HOLMES- 
 DALE. 
 
 Principle. 
 
 (L. R. 4 H. L. 543.) 
 
 In construing! executory trusts the Court exercises a 
 large authority in subordinating the language to the 
 intent. 
 
 Summary The Countess Amherst by a codicil to her will gave 
 
 of facts. ' ° 
 
 her freehold estates at Knole, and certain leaseholds and 
 copyholds and furniture, plate, fixtures and chattels at 
 
EXECUTORY TRUSTS. 35 
 
 Knole, to trustees in trust to settle them in a course of 
 settlement to correspond as nearly as might be prac- 
 ticable with the limitations of the barony of Buckhurst, 
 in such manner and form as the trustees should think 
 proper, or as their counsel should advise. The limita- 
 tions of the letters patent of the barony of Buckhurst 
 after the decease of the Countess de la Warr (who died 
 before the appeal was heard in the House of Lords) were 
 to Beginald Windsor Sackville-West, her second surviv- 
 ing son, and " the heirs male of his body," and in default 
 of such issue the peerage was to go to the third, fourth, 
 and fifth sons of the Countess de la Warr successively, 
 and the heirs male of their bodies, with a shifting clause 
 by which in certain events the barony was to go over. 
 The House of Lords decided that the estates ought to be 
 limited in a course of strict settlement to the second and 
 other younger sons of the Countess de la Warr for their 
 respective lives without impeachment of waste, with 
 remainder to their sons successfully in tail male in the 
 order mentioned in the letters patent creating the barony, 
 and that the copyholds, leaseholds, and chattels were to 
 go in a similar manner so far as the rules of law and 
 equity would allow, and that the settlement ought to 
 contain powers of jointuring and of charging portions. 
 
 In this case, as Lord Cairns said, in delivering judgment (p. 577), 
 the law on the subject was so completely settled that no principle 
 or rule was in controversy, the only question was " as to the proper 
 construction of an imperfect and inartistic codicil." The codicil to 
 Lady Amherst's will, said another of the Law Lords, creates an 
 " executory trust." The object of the testatrix was to annex as far as 
 she could " alienable " hereditaments and other property to an " in- 
 alienable" Barony, to attach the property by an apt and formal method 
 of law to the new Peerage, so as to make it a provision for the Peerage. 
 The settlement, it is to be observed, was to be made to correspond, so 
 far as might be practicable, with the limitations of the Barony. " To 
 correspond," said Lord Cairns, " does not mean to be identical with, 
 but to harmonize with, or to be suitable to, and the words ' so far as they 
 may be practicable ' " implied " ' a recognition of the difference which 
 
36 
 
 EXECUTORY TRUSTS. 
 
 Executed 
 trust. 
 
 Executory 
 trust. 
 
 must always exist in substance between the limitation of a dignity and 
 the limitation of property of any and every tenure." Lord Westbury, 
 after stating the general principle which is given as the head note, 
 that "in construing words creating an executory trust, a Court 
 exercises a large authority in subordinating the language to the in- 
 tent,'' proceeded as follows : — " It is plain, from the whole of the codicil, 
 that the general and leading intent of the testatrix was to make pro- 
 vision for the support and maintenance of the dignity ; and it would 
 be mere mockery of this intent and purpose if the estates were settled 
 so that they would at once become the absolute property of Reginald 
 to the disherison of all subsequent possessors of the dignity under the 
 letters patent." The question therefore to be determined was whether, 
 to use the words of Lord St. Leonards in Egerton v. Earl Brovmlow 
 (4 H. L. 0. 210), " the testatrix has been her own conveyancer, whether 
 she has left it to the Court to make out from general expressions 
 what her intention is, or has so defined that intention that you have 
 nothing to do but to take the limitations she has given you, and 
 to convert them into legal estates." Compare In re Ballance (42 
 Ch. D. 62). 
 
 Trusts (according to the old distinction established, as Lord Hard- 
 wicke said in Bagshaw v. Spencer (2 Atkins, 582), by the case of Lord 
 Qlenorchy v. Bosville (White and Tudor's L. C. i. 1), decided more than 
 150 years ago), are either " executed " or " executory.'' 
 
 A trust is said to be executed where the limitations of the equitable 
 interest are complete and final. Opposed to the executed trust is the 
 " executory " trust, which is " not a trust which remains to be executed, 
 for in this sense all trusts are executory at their creation, but a trust 
 which is to be executed by the preparation of a complete and formal 
 settlement, carrying into effect, through the operation of an apt and 
 detailed legal phraseology, the general intention compendiously indi- 
 cated by the testator:" per Lord Cairns, in the leading case (p. 571). 
 In an executory trust the objects take not immediately under it, but by 
 means of some further act to be done by a third person, usually him in 
 whom the legal estate is vested. Consequently technical rules for con- 
 struing words of limitation are inapplicable to the executory instru- 
 ment. See Lewin on Trusts, 9th ed. pp. 113. Thus in marriage 
 articles where an estate was limited to the husband for life with a sub- 
 sequent remainder to his heirs, or the heirs of his body, this limitation, 
 if literally introduced into the settlement, would, under the rule in 
 Shelley's Case (1 Rep. 93), recently discussed in Evans v. Evans ([1892] 
 2 Ch. 173), confer an estate of inheritance on the husband, and so en- 
 able him to defeat the very object of the settlement. In marriage 
 articles, said Lord Westbury (L. R. 4 H. L. p. 565), containing an 
 agreement that his estate shall be settled on the intended husband for 
 life, and then on the heirs of his body, a Court of Equity discerns an 
 intention that the issue shall take as purchasers, and it refuses, there- 
 fore, to give to the words " heirs of the body " their proper effect and 
 meaning at common law, but directs a settlement on the first and other 
 
EXECUTORY TRUSTS. 
 
 37 
 
 Executory 
 cases 
 
 where life 
 estate was 
 
 sons in tail. Although the words of limitation are neither informal nor 
 imperfect, their legal effect is overruled by the intention. There is 
 no clear authority (see below, (k) to (o)) ; although there are many 
 dicta (followed hy Lewin, 9th ed. p. 123), according to which the 
 Court will not read such an intention into an executory disposition 
 by will. But in dispositions by will the main and perhaps only 
 question is, Are they executory ? Marriage articles are the rough 
 jottings or heads of the provisions intended to be formally embodied 
 in a regular settlement, and therefore the Court will presume from the 
 nature of the instrument an intention to settle the property by a 
 subsequent deed. No such presumption exists with regard to wills or 
 deeds, which are not marriage articles ; here the intention that the 
 beneficiaries are to take, not under this, but under a subsequent deed, 
 must appear on the face of the instrument. 
 
 The following are cases in wills where an executory trust was 
 created, and the first beneficiary took a life interest : — 
 
 (a) A devise of lands to trustees to be settled on B. for life without 
 " impeachment of waste . . . remainder to the heirs of the body of created, 
 B. : " Papillon v. Voice (2 P. Wms. 471). Compare Sweetapple v. 
 Bindon (2 Vern. 536) ; Lord Olenorchy v. Bosville (W. & T. L. C. i. 1). 
 
 (6) "And afterwards to settle the remainder" on two sons and the 
 heirs of their body, " taking special care in such settlement that it 
 should never be in the power of either son to dock the entail of the 
 estate given to him during his life : " Leonard v. Earl of Sussex (2 
 Vern. 526). 
 
 (c) " To be settled as counsel should advise upon trust, and to and for 
 the use of B. and his issue in tail male, to take in succession and 
 priority of birth :" White v. Carter (2 Ed. 367). 
 
 (d) " Upon trust as counsel should advise to convey, settle, and 
 assure the said premises to or for the use of or in trust for " B. for life, 
 " and after her death, then on the heirs of her body : " Bastard v. 
 Proby (2 Cox, 6). 
 
 (e) Upon trust " to convey, assign, and assure to the use of my son 
 J. F. and the heirs of his body lawfully issuing, but in such manner 
 and form and subject to such limitations and restrictions as that if 
 J. F. shall happen to die without leaving lawful issue, then that the 
 property may after his death descend unincumbered : " Thompson v. 
 Fisher (L. R. 10 Eq. 207). Compare Trevor v. Trevor (13 Sim. 108) ; 
 Shelton v. Watson (16 Sim. 543). 
 
 (/) Upon trust " to settle it on himself and his issue male : " 
 Parker v. Bolton (5 L. J. Ch. 98). Contrast (I). 
 
 (g~) A bequest of chattels " to my nephew, to go and be held as heir- 
 looms hy him and by his eldest son on his decease, etc., as far as the 
 rules of law or equity will permit. And I request my said nephew to 
 do all in his power by his will or otherwise to give effect to this my 
 wish : " Shelley v. Shelley (L. B. 6 Eq. 540). 
 
 (h) A bequest of chattels to trustees upon trust, to select some " for 
 the said Earl of Essex and his successors, to be held and settled as 
 
38 
 
 EXECUTORY TRUSTS. 
 
 Executory 
 cases whert 
 no life 
 estate was 
 created. 
 
 Cases of 
 executed 
 trusts. 
 
 heirlooms and to go with the title : " In. re Johnston, Cooherell v. Earl 
 of Essex (26 C. D. 538). 
 
 (»') A bequest of leasehold estates to trustees " upon and for such 
 trusts, interests, and purposes, and with, under, and subject to such 
 powers, provisoes, and directions as, regard being had to the difference 
 in tenure of the premises respectively, would best and most nearly 
 correspond " with those regarding his Cardiganshire freehold estates. 
 The Cardiganshire freehold estates were limited, without the interven- 
 tion of trustees, to the use of testator's fourth son for life, remainder to 
 the fourth son's eldest son in tail. There was a clause shifting the 
 Cardiganshire freehold estates from the fourth to the fifth son's family 
 in case the fourth son's family became entitled to the third son's 
 estates. This clause would have infringed the rule against per- 
 petuities if applied literally to leaseholds ; but the trust was held to 
 be " executive " only : " best and most nearly " was construed as 
 meaning " having regard to the assistance which conveyancers can 
 offer;" and conveyancers could "so mould the trusts that, having 
 regard to the nature of the tenure, they will not fail." It is un- 
 necessary to refer to the alternative ground of decision for this case : 
 Miles v. Harford (12 C. D. 691). 
 
 In the following cases an executory trust was said to be created, 
 and the first beneficiary took an estate tail or absolutely : — 
 
 (k) A devise that after C.'s decease land should be settled by 
 counsel and go amongst testator's grandchildren and their issue in 
 tail male in the shares in which C. appoints : Marshall v. Bousfield 
 (2 Mad. 166). Here if the grandchildren took for life, the perpetuity 
 limit would be transgressed. Quosre, should this be called executory ? 
 
 (V) A devise upon trust to buy land which testator devised to (and 
 directed to he settled on) A. and his heirs male : Seale v. Seale (1 P. 
 Wms. 290). P. Williams copies 2 Eq. Abr. 346; but the better 
 report (Pre. Ch. 421) omits the portion in brackets. If P. Williams 
 is right, the word " settle " did not raise an executory trust in Magrath 
 v. Morehead (12 Eq. 491) nor in Munt v. Olynes (41 L. J. Ch. 639). 
 
 (m) A devise to trustees to pay debts and convey to use of B. for 
 life, remainder to his heirs male ; B. to have powers of leasing : Rale v. 
 Coleman (2 Eq. Abr. 309, n.). 
 
 (n) A devise of land " when purchased to B. and the heirs male of 
 his body : " Harrison v. Naylor (2 Cox, 247). 
 
 (o) A devise of land to a son " a proper entail to be made to the 
 male heir by him : " Blackburn v. Stables (2 V. & B. 367). 
 (m), (n), and (o) are clearly not executory. 
 
 In the following cases an executory trust was not created, and the 
 first beneficiary took an absolute interest. 
 
 (p) A bequest of chattels " upon trust, to permit the same to go and 
 be held and enjoyed with the title, so far as the rules of law and 
 equity will admit, by the person who for the time being shall be 
 actually possessed of the title in the nature of heirlooms : " In re 
 Exmouth, Viscount Exmouth v. Praed (23 C. D. 158, 163). 
 
INVESTMENT TRUST. 39 
 
 (q) " To the sixth Earl of Essex and to his successors." " To the 
 sixth Earl of Essex and his successors, and to he enjoyed with and 
 to go with the title : " In re Johnston, Cockerell v. Earl of Essex (26 
 C. D. 538). 
 
 The following is an intermediate case. 
 
 (r) No executory trust was created, and yet an absolute interest 
 was not conferred on the first beneficiary. Testator bequeathed 
 diamonds to Lord Inchiquin " as head of the family, and so far as I 
 lawfully can, I direct that the said diamonds shall be deemed heir- 
 looms in the family, and shall be held by the person for the time 
 being bearing the title of Baron Inchiquin." It was held that the 
 legatee was trustee for himself and his successors. But the question 
 as between the first and subsequent cestuis que trustent was un- 
 decided : Montagu v. Lord Inchiquin (23 W. E. 592). 
 
 As to clauses relative to jointuring and portioning, etc., appropriate Proper 
 to a settlement made in pursuance of an executory trust, see In re clauses. 
 Gowan, Oowan v. Qowan (17 Ch. D. 778), and Davidson's Precedents, 
 3rd ed. vol. iii. pt. i. pp. 195, 329, 602, 662 et seq. And consult Loch 
 v. Bagley (L. B. 4 Eq. 122) ; Viscount Holmesdale v. West (L. B. 
 12 Eq. 280) ; Grier v. Grier (L. B. 5 H. L. 688, 706) ; Cope v. Earl 
 de la Warr (L. E. 8 Ch. 982); Wise v. Piper (13 Ch. D. 848); In re 
 Parrott, Walter v. Parrott (33 Ch. D. 274). 
 
 The insertion of inappropriate clauses in a post-nuptial settlement Rectifiea- 
 gives rise to an action to rectify the settlement. See Cogan v. Duffield tion. 
 (2 Ch. D. 44) ; Brett's Commentaries, 2nd ed. vol. ii. p. 600. 
 
 Investment Trust. 
 
 SMITH v. ANDERSON. 
 
 (15 Ch. D. 247.) 
 
 An association consisting of more than twenty Principle 
 persons formed for the purpose of contributing funds 
 to he invested and held by trustees for the benefit of 
 the association does not require registration under 
 section 4 of the Companies Act, 1862. 
 
 The Submarine Cables Trust was constituted by a Summary 
 deed between six trustees and a covenantee "for and on 
 
40 INVESTMENT TRUST. 
 
 behalf of all the holders for the time being of the cer- 
 tificates thereinafter mentioned." The public had been 
 invited by prospectus to subscribe, and had subscribed 
 for the purchase by and in the names of six paid 
 irremoveable trustees of stock, etc., issued by eight or 
 ten different submarine telegraph companies. The 
 trustees issued to each subscriber of £90 a certificate 
 for £100 and a " coupon of reversion ; " and the total 
 value of the certificates corresponded with that of the 
 stock, etc. The trustees were to apply the annual pro- 
 ceeds of the stock, etc., after payment of expenses, in 
 payment of interest up to 6 per cent, on the certificates, 
 and apply the surplus in redeeming the certificates, as 
 mentioned in the trust deed. The stock, etc., was not to 
 be sold except as mentioned in the trust deed ; if sold, 
 the proceeds were to be applied in the same manner as 
 the surplus income, unless a meeting of certificate holders 
 specially convened by the trustees authorized reinvest- 
 ment in similar securities. The trustees were to call 
 an annual general meeting of certificate holders, which 
 should be conducted after the manner prescribed by 
 Table "A" of the Companies Act, 1862, and should re- 
 ceive reports, appoint auditors, new trustees on the 
 death, incapacity, or retirement of old trustees, and 
 sanction extraordinary expenses. As soon as all the 
 certificates were redeemed the securities were to be 
 realized and the net proceeds divided proportionally 
 among the holders for the time being of the coupons 
 of reversion. The certificate holders were more than 
 twenty in number, and an action was brought by one 
 of them on behalf of all the rest, alleging that the 
 association was illegal and claiming to have the funds 
 distributed proportionally among the certificate holders. 
 The Court of Appeal (reversing the decision of Jessel, 
 M.R.) dismissed the action. 
 
INVESTMENT TRUST. 
 
 41 
 
 In this case the Court of Appeal reversed the decision of Sir George 
 Jessel and disapproved of his previous decision in Syhes v. Beadon, 
 (11 Ch. D. 170), and held that the association in question did not require 
 registration under the Companies Act, and was consequently legal. 
 
 The 4th section of the Companies Act, 1862, on which the question 
 turned, provides that " no company, association, or partnership con- 
 sisting of more than twenty persons, shall he formed after the com- 
 mencement of this Act ('2nd November, 1862), for the purpose of 
 carrying on any business " (except banking) " that has. for its object 
 the acquisition of gain by the company, association, or partnership, 
 or by the individual members thereof, unless it is registered as a 
 company under this Act, or is formed in pursuance of some other Act 
 of Parliament, or of letters patent, or is a company engaged in working 
 mines within and subject to the jurisdiction of the Stannaries." 
 
 (1) First, what is a partnership, association, or company ? There 
 is no English word which includes partnerships and companies ; but 
 the word " partnership " is often used to do duty for the absence of such 
 a word. The word " association " has no meaning of its own in this 
 section. Lord Justice James distinguished a partnership (in its 
 narrower sense) and a company thus : " An ordinary partnership is 
 a partnership composed of definite individuals bound together by 
 contract between themselves to continue combined for some joint 
 object, either during pleasure or during a limited time, and is essen- 
 tially composed of the persons originally entering into the contract 
 with one another. A company or association is the result of an 
 arrangement by which parties intend to form a partnership which 
 is constantly changing, a partnership to-day consisting of certain 
 members, and to-morrow consisting of some only of those members 
 along with others who have come in, so that there will be a constant 
 shifting of the partnership, a determination of the old and a creation 
 of a new partnership, and with the intention that, so far as the partners 
 can by agreement between themselves bring about such a result, the 
 new partnership shall succeed to the assets and liabilities of the old 
 partnership." Compare Baird's Case (L. E. 5 Ch. 725). 
 
 (2.) What is a business for purposes of gain? This question is 
 analogous to the question asked under the old Bankruptcy Acts: 
 What is a trader ? But a " business for gain " is wider than the word 
 trade or mere buying and selling. Compare 15 Ch. D. 258, 259. 
 
 The investment trust described in the leading case was a most 
 perfect parody of the form of a joint stock company; but the Court 
 of Appeal paid no attention to questions of mere form. The question 
 which they had to decide depended on the answers to two crucial 
 questions : (1) Was this association a partnership in the wider sense ? 
 Mutual agency is the very essence of a partnership : Cox v. Hickman 
 (8 H. L. C. 268) ; but the members of this association " could not 
 have been made liable for any contract made by the trustees " 
 (p. 280), much less for any contract made by any other member. 
 It was " inconsistent with the nature of the whole transaction that 
 
 Act, 1862, 
 s. 4. 
 
 Partner- 
 ship in 
 wider 
 sense. 
 
 Associa- 
 tion. 
 
 Distinction 
 between 
 company 
 and 
 
 partner- 
 ship in 
 narrower 
 sense. 
 
 A business 
 for gain. 
 
 Two 
 
 questions 
 in leading 
 case. 
 
 (l)No 
 partner- 
 ship. 
 
42 INVESTMENT TRUST. 
 
 they, ' the members,' should be parties (directly or indirectly, either 
 by themselves or through any agent for them) to any contract, or 
 be liable for any act of misfeasance or neglect of any manager, agent, 
 or servant " (p. 275). True, there was common gain ; but so there is 
 in the case of Bolivian bondholders, Wilson v. Church (13 Ch. D. 1), 
 and creditors under a trust deed : Cox v. Hickman (ubi supra) ; Cooke 
 v. Smith ([1891] A. C. 297) ; but " persons who have no mutual rights 
 and obligations do not constitute an association" (James, L.J., meant 
 a partnership), " because they happen to have a common interest or 
 several interests in something which is to be divided between them " 
 (p. 275). Again, there were common representatives of the concern, 
 but they were trustees, not agents ; " so far as there is any business 
 it is the business of the trustees, not as agents with principals behind, 
 but their own business," subject only to a liability to account to 
 their cestuis que trustent (p. 285). Compare Crook v. Owen ([1895] 
 1 Q. B. 265, 275). In the main, they were like the trustees in Crowther 
 v. ThorUy (32 W. E. 330), of whom Brett, L. J., said, " There is no such 
 thing as an agent who is not bound to obey the orders of his principal. 
 These trustees were decidedly not bound to obey the orders of a prin- 
 cipal " (p. 333). The distinction between an agent authorized to trade 
 in his own name and the trustee for cestuis que trustent, who are sui 
 Juris, is subtle ; but the Court relied on it as their first ratio decidendi. 
 (2) No (2) The second ratio decidendi was more solid; there was no 
 
 business. continuous business to be carried on by the trustees. True, both 
 trustees and cestuis que trustent directed reinvestments in certain 
 cases, yet that was " a merely subsidiary part of the transaction ; and 
 if the substantial part of what they have to do is not a business, a 
 mere subsidiary provision will not bring them within the Act " 
 (p. 279). Compare Reg. v. Whitmarsh (15 Q. B. 600). Again, Sir 
 G. Jessel had held that there was mutual insurance against the risks 
 of any one of these eight or ten enterprises. Perhaps so, but here 
 there was merely a trust to invest once for all, the investment being 
 spread over a number of different securities, so as to enable persons 
 who chose to invest their money in this way to avail themselves, in 
 the words of James, L. J., of " the doctrine of averages ; " that is to 
 say, that if a large number of different independent securities of a 
 hazardous description were held together, the loss upon some would be 
 compensated by the gain on the others, so that a tolerably uniform 
 average rate of interest would be obtained; but business meant a 
 succession of acts, not the attributes of a single act: see p. 279, but 
 compare In re Padstow, etc., Association (20 Ch. D. 137, 148). 
 Bowen, L.J., said in Crowther v. Thorley (ubi supra), " There is no 
 more a business of land-jobbing because persons club together to buy 
 a piece of land, than there is of tea-dealing if they club together to buy 
 a chest of tea " (p. 333). So here they had clubbed together to buy an 
 investment more cheaply and safely. As the Commercial Codes of 
 the continent would put it, an association is only commercial if it 
 habitually engages in commercial acts. 
 
INVESTMENT TRUST. 
 
 43 
 
 Persons (more than twenty) associate together and appoint trustees 
 (less than twenty) to buy a certain property, and (a) to allot it to 
 members, reserving the mines : this is no " business." (b) To work 
 the mines, holding profits as trustees for the members. The trustees 
 are not " agents " of the members ; therefore there is no " partnership : " 
 Crowther v. Tliorley (32 W. R. 330). (c) To lay out roads and allot 
 the rest to members : this is no " business : " Wigfield v. Potter 
 (45 L. T. 612). To lay out roads, drain, and execute other works : 
 this is no " business]: '' In re Siddall (29 Ch. D. 1). In each of these 
 cases there was a committee of management who with the trustees 
 were less than twenty. Eegistration under sect. 4 was unnecessary. 
 
 (d) Persons (more than twenty) appoint a removeable trustee to 
 receive their subscriptions, and with the fund so formed lend money 
 at interest to members : Jennings v. Hammond (9 Q. B. D. 225). 
 
 (e) As in (d), only the trustee is called president, and there is a 
 committee of management, ten in number: Shaw v. Benson (11 
 Q. B. D. 563). 
 
 (/) As in (d), but semble, the trustee is not removeable, and there 
 is a committee of management, seven in number, with power to make 
 bye-laws : In re Thomas, Ex parte Poppleton (14 Q. B. D. 379). 
 
 In all these oases, (d), (e), (/), there is a " business " carried on for 
 " gain," and the trustees and committee are merely agents of the 
 members, who are therefore partners. Eegistration under sect. 4 is 
 therefore necessary. 
 
 (g) Shipowners (more than twenty) appoint a manager and committee 
 of less than twenty, who receive their subscriptions and pay out of 
 them compensation for any loss at sea incurred by members. If insuf- 
 ficient, the members pay the balance. This association must be 
 registered, because it carries on a " business " for " gain ; " and as the 
 manager and committee are agents, the members are therefore 
 " partners : " In re Padstow Total Loss, etc., Assurance Association, 
 (20 Ch. D. 137). 
 
 (h) M'Keown v. Joint Stock Institute (T. L. E., 25th May, 1896) 
 followed Smith v. Anderson, distinguishing In re Padstow Association. 
 
 If a society requires to be registered and is not registered, it cannot 
 nor can any one representing it bring an action ; and it cannot even be 
 wound up, In re Padstow Association (ubi supra), unless perhaps at 
 the instance of a bond fide creditor, who had no reason to suspect its 
 illegality, In re South Wales Atlantic Steamship Go. (2 Ch. D. 763). 
 Compare In re Bowling and Welbyh Contract ([1895] 1 Ch. 663), 
 and see Lindley on Company Law, 5th ed. pp. 621, 622. 
 
 Cases of 
 freehold 
 land com- 
 pany. 
 
 Loan 
 funds. 
 
 Mutual 
 assurance. 
 
 Effect of 
 non-regis- 
 tration. 
 
44 CHARITY — THE CY-PRES DOCTRINE. 
 
 Charity — The Cy-pres Doctrine. 
 
 In re CAMPDEN CHARITIES. 
 
 (18 Ch. D. 310.) 
 
 Principle. The cy-pres doctine is applied to charitable gifts 
 
 when from lapse of time and change of circumstances 
 it is no longer beneficial to carry out the intention of 
 the donor in the exact mode which he has directed. 
 
 The Court will not interfere ivith a scheme settled by 
 the Charity Commissioners unless the Commissioners 
 have exceeded their jurisdiction or the scheme contains 
 something wrong in principle or wrong in law. 
 
 Summary The charitable gifts which came under the considera- 
 tion of the Court in this case consisted of (1) £200 left 
 by the will of Viscount Campden in the year 1629 for 
 the benefit of the poor of Kensington, "as the trustees 
 for the time being should think fit to establish for ever." 
 (2) £200 left in 1643 by the will of Viscountess Campden 
 to purchase lands of the clear annual value of £10, " one 
 half of which should be applied from time to time for 
 ever for and towards the better relief of the most poor and 
 needy people that be of good life and conversation that 
 should be inhabiting within the said parish of Kensington 
 and the other half thereof should be applied yearly for 
 ever to put forth one poor boy or more being of the 
 said parish to be apprenticed. The said £5 due to the 
 poor to be paid to them half yearly for ever at Lady- 
 day and Michaelmas in the church or porch thereof." 
 Both these sums of £200 were laid out in the purchase of 
 
GHARITY—THE GT-PRES DOCTRINE. 45 
 
 land. The parish of Kensington had increased enor- 
 mously in proportions, and the total rents of the charity 
 estates were about £3600, of which £2200 belonged to 
 Lady Campden's Charity. Apprenticeship had almost 
 died out, and opinion had changed as to the expediency 
 of doles. 
 
 ■Accordingly the trustees had for a considerable 
 time been applying the charity funds in a manner 
 which, though beneficial, was not in accordance with the 
 directions in Lady Campden's will. The Charity Com- 
 missioners prepared a draft scheme for the administration 
 of the Charities, by which they appropriated the income 
 to interim relief, hospitals, the promotion of thrift, 
 old age pensions, education, advancement (including 
 apprenticeship), and the like. Some of the parishioners 
 objected to the scheme, and produced evidence that there 
 was no lack of deserving objects of the charity ready to 
 take under the old mode of applying the income, but the 
 Court of Appeal, reversing the decision of Hall, V.C., 
 refused to interfere with the discretion of the Com- 
 missioners, and confirmed the scheme. 
 
 The principle upon which the Court proceeds in applying the Principle, 
 doctrine of cy-pres, i.e. following as nearly as possible the intention of 
 the donor, was thus laid down by Lord Eldon in the oft-quoted cases 
 of Moggridge v. Thackwell (7 Ves. 36) and Mills v. Farmer (1 Mer. 
 55) : " Although the mode in which a legacy is to take effect is in 
 many cases, with regard to an individual legatee, considered as of 
 the substance of the legacy, where a legacy is given so as to denote 
 that a charity is the legatee, the Court does not hold that the mode is 
 of the substance of the legacy, but will effectuate the gift to charity as 
 the substance ; providing a mode for that legatee to take which is not 
 provided for any other legatee." This principle is subject to the 
 qualification that the Court cannot alter provisions sanctioned under 
 Acts of Parliament and Koyal Charters : Attorney-General v. Governor 
 of Christ's Hospital ([1896] 1 Ch. 879. 
 
 Hall, V.C., had based his decision upon the grounds that the scheme External 
 did not separate Lord Campden's from Lady Campden's bequest ; and cnan S es > 
 that the latter being definitely expressed, lawful, and not injurious 
 ought to be adhered to. The Court of Appeal in reversing this 
 
46 
 
 OHABITF — THE QY-PBES DOCTRINE. 
 
 habits, 
 
 ideas, 
 
 and in- 
 dustrial 
 conditions, 
 
 decision proceeded on the principle that the circumstances of the case 
 had altered so much that anything like a rigid adherence to the words 
 of the testatrix's will would altogether defeat " the principal object 
 which she had in view as distinguished from the means by which she 
 wished that object to be carried out.'' The increase in the value of the 
 property had been enormous, hut the change in the whole circum- 
 stances and condition " of the parish of Kensington " had been in- 
 finitely greater, so that it required some exercise of the imagination to 
 adequately realize it. " The then village of Kensington was a small 
 village about a mile and a half from Hyde Park Corner, and in old 
 documents it is called a village. Now it is what we know it, a 
 suburb of London, very thickly inhabited with many thousands of 
 people, and containing a large number of houses of great magnitude 
 and value, inhabited by wealthy people. The whole of the circum- 
 stances of the place have changed. That which was a provision for 
 the poor inhabitants of a village, is now a provision for the numerous 
 inhabitants of this large town or part of a town." 
 
 "Again," the judgment continues, "circumstances have changed in 
 another way. The habits of society have changed, and not only men's 
 ideas have changed, but men's practices have changed, and in conse- 
 quence of the change of ideas there has been a change of legislation ; 
 laws have become obsolete or have been absolutely repealed, and habits 
 have become obsolete, and have fallen into disuse, which were pre- 
 valent at the times when these wills were made. The change, indeed, 
 has become so great in the case that we are considering, that it is 
 eminently a case for the application of the cy-pres doctrine, if there is 
 nothing to prevent its application." 
 
 The Court of Appeal then proceeded to consider the mode in which 
 the testatrix had directed the fund to be applied. One moiety was to 
 to be applied in " doles," but that which might have been reasonable 
 enough more than 200 years ago, when 50 shillings were to be given 
 half-yearly among a few poor people in a small parish, would be in- 
 tolerable on a large scale in a large town like Kensington. Jessel, M.R., 
 said : " There is no doubt that it " (the system of doles) " tends to 
 demoralize the poor and benefit no one. . . . The extension of doles is 
 simply the extension of mischief. ... It seems to me, when you 
 consider the change in the amount of money and the change in the 
 surrounding circumstances, you cannot impute to the testatrix an 
 intention to distribute this large sum in the way I have mentioned." 
 
 The other moiety was to be used for the purposes of apprenticing 
 one or more boys of the parish. The observations of Sir George Jessel 
 on this point were as follows : — " Now it is said that as regards the 
 apprenticing of the poor boys, we are to apply £1100 a year in exactly 
 the same way that the testatrix directed £5 a year to be paid. In 
 giving £5 a year to apprentice one poor boy or more, she evidently 
 thought that there might occasionally be a chance of more than one 
 boy; . . . but did she imagine, or can anybody suppose she imagined 
 she was going to provide £1100 a year to apprentice any number of 
 
CHARITY — THE CY-PBE8 DOCTRINE. 
 
 47 
 
 boys that might be living in the parish?" And further, it was 
 to be remembered that under the statute passed in the fifth year of 
 Queen Elizabeth it was then part of the law of the land that no one 
 could exercise a trade without being apprenticed. On this point Sir 
 George Jessel observed : " All that legislation has been repealed — so 
 the case falls within the principle laid down by Lord Westbury in 
 Clephane v. Lord Provost of Edinburgh (L. R. 1 H. L. Sc. 417), where 
 the means to the end required a change, the end (that of educating the 
 poor of the parish so as to enable them to obtain a living) being kept 
 in view." 
 
 " To confine," said James, L.J., "the application of that charity in 
 the present state of things, in the present state of feeling, and the 
 present state of the law to those persons only among the poor of 
 Kensington whose children would be willing to become apprentices to 
 tradesmen or otherwise, and to exclude from the charity all that other 
 mass of poor people who have got the same claim, and who do not 
 now find it beneficial for their children to be put out as apprentices, 
 would be, in fact, to exclude from the charity the great majority of 
 that class of poor whom, it is obvious to my mind, Lady Campden con- 
 templated as recipients of the benefit of the charity, and in doing that 
 we should be in truth defeating the spirit of Lady Campden's gift by 
 following strictly the letter, when that letter has become inapplicable." 
 
 In discussing the principles on which the Court should act when 
 asked to set aside or remodel a scheme settled by the Charity Commis- 
 sioners, Jessel, M.E., said : " This is a scheme settled by a competent 
 authority, the Charity Commissioners, persons not only of great, but of 
 special experience in these matters, and persons intrusted with the 
 supervision of these matters as a separate body by the Legislature for 
 that very reason. It would not be, in my opinion, sufficient for a 
 judge to say he thought some detail might well be different, or that if 
 he himself had originally settled the scheme he should have put in 
 some others than those which are specified in the scheme. He must 
 be satisfied that the Charity Commissioners have gone wrong, either 
 by disobeying those rules of law which govern them, as well as they 
 govern Courts of justice, or else that there has been some slip or gross 
 miscarriage which calls for the intervention of the Court to set aside 
 and remodel the scheme." 
 
 It is proposed to discuss the questions which the leading case sug- 
 gests under four heads : (1) The reason why ; (2) the purpose for 
 which, and (3) the objects for whose benefit, cy-pres exists ; and (4) its 
 exercise by the Charity Commissioners. 
 
 (1) Ordinary gifts are void if they infringe the rule against 
 perpetuities. This rule forbids the postponement of the vesting of 
 real or personal property for an estate in fee simple, in tail or absolute 
 interest, during a longer period than lives in being and twenty-one 
 years after, an extension being allowed for gestation if gestation exists. 
 There must be some one capable of disposing of the entire property 
 within this period : otherwise the gift violates the policy of the law 
 
 demand a 
 sacrifice of 
 the letter 
 to the 
 spirit ; 
 
 new de- 
 tails being 
 left to the 
 Charity 
 Com- 
 missioners. 
 
 Division of 
 subject. 
 
 (1) Rule 
 against 
 perpetui 
 ties. 
 
48 ' CHARITY — THE CY-PRES DOCTRINE. 
 
 (which favours alienation), and is void. But the policy of the law 
 favours charities still more ; accordingly, the rule is (a) that gifts to a 
 charity do not' fail although they exceed the period within which 
 ordinary gifts must take effect. This rule is (b) subject to an excep- 
 tion, which is that if the occurrence of an event is a condition prece- 
 dent of the gift, the event must necessarily occur within the period 
 prescribed by the rule : In re Lord Stratheden and Campbell ([1894] 
 3 Ch. 265). In In re White's Trusts (33 Ch. D. 449) the legacy was to 
 the Tinplate Worker's Company, upon trust, to build almshouses for 
 tinplate workers " when " a proper site could be obtained, and " in the 
 hope that " when built, the almshouses would be endowed. The 
 words "when" and "in the hope that" were treated as conditions pre- 
 cedent, and as such were subject to the ordinary rules of law against 
 remoteness, etc. ; the gift was therefore void. The dicta of Lord 
 Selborne in Chamberlayne v. Brockett (L. E. 8 Ch. 206) were cited for 
 this principle ; but in that case it was held that the condition (" when 
 land shall be given " for the almshouses) referred only to the mode of 
 effectuating a charitable gift and that therefore the charitable gift was 
 good, (e) And this exception is subject to an exception when the 
 condition precedent which invests one charity is the divesting of 
 another charity : In re Tyler, Tyler v. Tyler ([1891] 3 Ch. 252). For 
 it is well-established law that a charity can be divested by a condition 
 subsequent, which transgresses the perpetuity limit ; for instance, 
 there may be a gift to a school until national education is established, 
 and then a gift over to A. B. ; the condition subsequent is good, even 
 though national education may at the date of the gift be a dream of 
 the future ; but it does not follow from that that A. B. can take. If 
 the charity involves a perpetuity A. B. cannot take, unless of course 
 A. B. happens to be a charity : In re Bowen, Lloyd Phillips v. 
 Davies ([1893] 2 Ch. 491) ; and see In re Randell, Randell v. Dixon 
 (38 Ch. D. 213), a puzzling case. In In re Robinson, Wright v. 
 Tugwell ([1892] 1 Ch. 95) a Church was made liable, under a will, to 
 be divested of its endowments if its priest preached otherwise than in 
 black. North, J., allowed the income to be spent on the Church until 
 the priest violated the condition subsequent. Sed quesre ; contrast In re 
 Richardson (35 W. R. 710) ; see Note I. (d) Cy-pres is a corollary to 
 this rule, these exceptions and these exceptions to exceptions. Because 
 a charitable gift may be perpetual, it is necessary to revise its terms 
 from time to time. 
 (2) Rule (2) Cy-pres exists for the protection of charitable gifts when first 
 
 as to un- made. Many charitable gifts would be void for uncertainty if the 
 certainty, c our t or the Commissioners were not at hand to fill in details. The 
 following are cases in which it was held that a gift to charities in 
 general must be supplemented by a scheme directed by the Court. 
 In the first two cases it was as though the testator made a frame, and 
 the Court painted in the picture. In the third case it was as though 
 the Court painted out the picture which the testator painted, and 
 painted in one of its own. 
 
CHARITY— TEE CY-PRES DOCTRINE. 49 
 
 Testator by codicil, after making specific charitable bequests out of 
 certain funds, directed the residue thereof " to be given by my 
 executors to such charitable institutions as I shall by any future 
 codicil give the same, and in default of any such gift, then to be 
 distributed by my executors at their discretion," and made no further 
 codicil. The codicil contained a residuary bequest to A. B. : Pocooh v. 
 Attorney •- General (3 Ch. D. 342). After " to be distributed by my 
 executors" the Court supplied the words "in charity." 
 
 In In re White, White v. White ([1893] 2 Oh. 41), the testator gave 
 property " to the following religious societies, viz. : " then a blank 
 followed. This case is stronger than the first, because the Lord Jus- 
 tices held that it is by no means the fact that all religious societies are 
 charitable, and that the gift would be void for uncertainty in the case 
 of non-charitable religious societies. Compare gifts " to the poor and 
 the service of God : " In re Darling ([1896] 1 Ch. 50). Contrast gifts 
 to charitable or philanthrophic purposes: In re Macduff (74 L. T. 187). 
 In Biscoe v. Jackson (35 Ch. D. 460) a testator directed £10,000 to 
 be applied in the establishment of a Soup Kitchen and Cottage 
 Hospital for the parish of Shoreditch " in such a manner as not to 
 violate the Mortmain Acts." It was found impossible to apply any 
 part of the money, as land in mortmain could not be obtained in 
 Shoreditch. The Court held there was a general charitable intention, 
 that the trusts should be executed cy-pres, and directed a scheme (see 
 Note II.). 
 
 And cy-pres not only interposes to save charitable gifts at their or _impossi- 
 birth, but to save them from an untimely end. The three following ' ' y .? 
 cases speak for themselves : — 
 
 In Wilson v. Barnes (38 Ch. D. 507) a wood was granted by its 
 owner for providing timber in order to repair sea-dykes. In process of 
 time the sea receded, and dykes were no longer needful to restrain 
 its encroachments ; then the wood was all cut down. The purpose and 
 subject-matter of the gift were no more. The Court diverted the land 
 to other charitable purposes. 
 
 In the Mayor of Lyons v. Advocate- General of Bengal (1 App. Cas. 
 91) testator gave funds inter alia for the relief and release of im- 
 prisoned debtors at Calcutta and a residuary gift to other charities. 
 Imprisonment for debt was abolished at Calcutta (after the testator's 
 death). It was held that the cy-pres doctrine was applicable to the 
 gift whose purpose had failed, and that the residuary gift (although a 
 gift to charities) did not operate upon these funds. Compare Attorney- 
 General v. Hanhey (16 Eq. 140, n.) ; In re Prison Charities (16 
 Eq. 129). 
 
 In In re Slevin, Slevin v. Hepburn ([1891] 2 Ch. 236), the charitable 
 legatee ceased to exist before the legacy was paid over to it, but after 
 the testator's death ; and it was held, following Hayter v. Trego (5 Euss. 
 113), that cy-pres preserved the gift for some charity or other, and 
 that it did not fall into the residue (in Hayter v. Trego there was 
 no residue). The following is a statement by the Lord Justices of 
 
 E 
 
50 
 
 CHARITY — THE CY-PRES DOCTRINE. 
 
 Cases of 
 lapse must 
 be dis- 
 tinguished. 
 
 Rule as to 
 
 surplus 
 
 income. 
 
 Rule as to 
 preserving 
 endow- 
 ments. 
 
 (3) What 
 are 
 
 charities. 
 
 the principle of their. decision in this case: — " The rights as between 
 the particular legatee and the residue are fixed at the testator's death. 
 In the present case we think that the Attorney-General must succeed, 
 not on the ground that there is such a general charitable intention that 
 the fund should be administered cy-pres, even if the charity had failed, 
 in the testator's lifetime, but because, as the charity existed at the 
 testator's death, this legacy became the property of that charity, and 
 on its ceasiDg to exist, its property falls to be administered by the Crown, 
 who will apply it according to custom for some analogous purpose of 
 charity." 
 
 Of course these principles cannot be stretched so as to prevent 
 lapse during a testator's lifetime. In In re Ovey, Broadbent v. Barrow 
 (29 Ch. D. 560), where a legacy had been left to an ophthalmic 
 hospital which had, ceased to exist at the time of the testator's death, 
 it was held that the testator had no general intention of benefiting 
 blind persons, but that his sole intention was to benefit a particular 
 hospital if it was in existence and capable of receiving his bounty, 
 and that accordingly the legacy lapsed. 
 
 Lapse also occurred in In re Rymer, Rymer v. Stansfield ([1895] 1 
 Ch. 19), where the London institution which testator named ceased to 
 exist in testator's life ; although the persons benefiting by it removed 
 to a similar institution at Birmingham. (Lapse may occur under gifts 
 by deed as well as under gifts by will : In re Tilt (74 L. T. 163).) 
 
 Cy-pres is also the means whereby the unearned increment of a fund 
 is devoted to charity. In 1558 a testator gave houses to a City com- 
 pany upon condition that it should spend £8 on specific charities and 
 " the rest of the profits " on repairing the said houses. The net profits 
 at the testator's death were £8 8s. Two centuries later the Court 
 directed a scheme to be prepared for the administration of these profits : 
 Attorney- General v. Wax Chandlers' Co. (L. E. 6, H. L. 1). The 
 respondents in this case had contended that they took beneficially 
 subject to certain liabilities. It was urged against them that the 
 testator must have thought that the condition exhausted the profits, so 
 that his bequest ought to be construed as a trust of the whole estate. 
 When once a property, however small, is given to some charitable 
 purposes, its produce, however large, is given to charity through the 
 machinery of cy-pres. 
 
 Cy-pres has also been used to preserve the endowments of Dissent- 
 ing congregations. Since 7 & 8 Vict. c. 45, twenty-five years' usage in 
 any congregation, is, in the absence of express provisions to the contrary, 
 decisive as to who are entitled to the endowments ; thus funds for 
 Positivists might under this law be gradually diverted to Anabaptists, 
 supposing that the former developed into the latter. Independently 
 of statute, cy-pres can secure a similar result: Attorney- General v. 
 Bunce (6 Bq. 563). But for statute and cy-prhs, the endowments 
 would be blown clean away by the faintest breath of new doctrine. 
 
 (3) What are charities? The Court (9 Ves. 405) regards all 
 objects as charitable which are (a) expressly enumerated in the repealed 
 
CHARITY — TEE CY-PRES DOCTRINE. 51 
 
 statute of charitable uses (43 Eliz. c. 4), or which are (b) deemed by- 
 analogy within its spirit and intendment. The charitable objects 
 enumerated by the preamble to that statute, and re-enacted 51 & 52 
 Vict. c. 42, s. 13, are as follows: — " Relief of aged, impotent and poor 
 people; maintenance of sick and maimed soldiers and mariners, schools 
 of learning, free schools and scholars in universities; repairs of bridges, 
 ports, havens, causeways, churches, seabanks and highways ; education 
 and preferment of orphans, relief, stock or maintenance for houses of cor- 
 rection ; marriage of poor maids ; supportation, aid and help of youDg 
 tradesmen, handicraftsmen and persons decayed ; relief or redemption 
 of prisoners or captives ; aid or ease of any poor inhabitants concerning 
 payments of fifteens, setting out of soldiers, and other taxes." 
 
 Sect. 66 of the Charitable Trusts Act, 1853, and sect. 14 of the 
 Charitable Trustees Incorporation Act, 1872, defines charity by 
 reference to 43 Eliz. c. 4. 
 
 Recent cases show no disposition to narrow down the wide interpreta- 
 tion of the word in the older cases (see e.g. Jarman on Wills, 5th ed. 
 pp. 166-169). Thus, charities include the Royal National Lifeboat 
 Institution, In re Richardson (ubi supra), the Miners' Relief Fund 
 Friendly Society, the York Theatrical Fund Society, and other friendly 
 societies, Spiller v. Maude (32 Ch. D. 158 n.) ; Pease v. Pattinson 
 (32 Ch. D. 154), but not Trades Unions, In re Amos, Carrier v. Price 
 ([1891] 3 Oh. 159), nor a club for the relief of widows of members, 
 Cunnack v. Edwards ([1895] 1 Ch. 489) ; the Salvation Army, In re 
 Lea, Lea v. Cooke (34 Ch. D. 528), Educational Trusts, In re Gilchrist 
 Educational Trust ([1895] 1 Ch. 367), Poor Relations, Attorney- 
 General v. Puke of Northumberland (7 Ch. D. 745), Volunteer Corps, 
 In re Lord Stratheden and Campbell ([1894] 3 Ch. 265), Moravian 
 Missions, Commissioners for Income Tax v. Pemsel ([1891] A. C. 531), 
 any religious society, In re White, White v. White ([1893] 2 Ch. 
 41), except " a society for the promotion of private prayer and devotion 
 by its own members, and which has no wider scope, no public 
 element, no purposes of general utility ■" (ib. 51) : thus sisters of 
 charity, but not a Dominican convent, Cocks v. Manners (12 Eq. 
 574). And it includes " Societies for the Prevention of Cruelty to 
 Animals," but not the maintenance of animals : In re Dean, Cooper 
 Dean v. Stevens (41 Ch. D. 552) ; In re Douglas, Obert v. Barrow 
 (35 Ch. D. 472) ; In re Foveaux, Cross v. London Anti-vivisection 
 Society ([1895] 2 Ch. 501). 
 
 It is charity to repair sea dykes, Wilson v. Barnes (38 Ch. D. 507), 
 or to provide a scholarship, Rooke v. Davison ([1895] 1 Ch. 480) ; to 
 repair a churchyard, In re Vaughan, Vaughan v. Thomas (33 Ch. D. 
 187), but not to repair a tomb in a churchyard, Fisk v. Attorney- 
 General (4 Eq. 521); In re Tyler, Tyler v. Tyler ([1891] 3 Ch. 252) ; 
 to nurse the sick, but not to pray : Cocks v. Manners (ubi supra). 
 " Charity," said Lord Macnaghten in Commissioners for Income Tax 
 v. Pemsel ([1891] A. C. 531, 583), " in its legal sense, comprises four 
 principal divisions : trusts for the relief of poverty, trusts for the 
 
52 
 
 CHARITY— THE CY-PRES DOCTRINE. 
 
 (4) Power 
 of Charity 
 Commis- 
 sioners, 
 
 resemble 
 the powers 
 of the 
 Chancery 
 Division ; 
 
 advancement of education, trusts for the advancement of religion, and 
 trusts for other purposes beneficial to the community not falling under 
 any of the preceding heads. The trusts last referred to are not the 
 less charitable in the eye of the law, because incidentally they benefit 
 the rich as well as the poor, as indeed every charity that deserves the 
 name must do either directly or indirectly." In this case Lord 
 Halsbury, L.O., and Lord Bramwell expressed their belief that 
 what was charity in England was not charity in Scotland ; but the 
 majority of the House of Lords decided that the Tweed made no 
 difference in the meaning of the word. It might conceivably be 
 charity to permit the freemen of a borough to dredge for oysters and 
 sell what they catch during two months in the year : Goodman v. 
 Mayor, etc., of Saltash (7. App. Cas. 633 ; compare In re Christchurch 
 Inclosure Act (38 Ch. D. 520); In re Norwich Town Close Estate 
 Charity (40 Ch. D. 298) ; but sport is not charity : In re Nottage 
 ([1895] 2 Ch. 649). 
 
 (4) The Court of Chancery had an inherent jurisdiction with regard 
 to charities : Incorporated Society v. Richards (1 D. & War. 258, 308) ; 
 Attorney-General v. St. John's Hospital, Bedford (2 De G. J. & S. 
 621) ; and one of the subjects specially assigned to the Chancery 
 Division by sect. 34 (3), of the Judicature Act, 1873, is "the execu- 
 tion of trusts charitable." The Acts relating to Charitable Trusts, 
 1853-94, have now relieved the Chancery Division of a part of the 
 duties incident to this jurisdiction. 
 
 The chief powers conferred on the Charity Commissioners by these 
 Acts are modelled on the powers possessed by the Chancery Division 
 after an order for the administration of a trust estate. They inquire into 
 details, and advice from them confers indemnity, and they can sanction 
 leases and sales which would be otherwise illegal ; annual accounts are 
 rendered to them. Subject to an appeal to the ChanceryDivision, they 
 appoint and remove trustees, and make vesting orders in the same way 
 as a Chancery judge might do in Chambers. Resistance to inquiry is 
 punishable as " a contempt of the High Court of Chancery : " Charitable 
 Trusts Act, 1853, s. 14 ; Charitable Trusts Amendment Act, 1855, s. 9, 
 etc. Indeed, they have, in some respects, more power than a Chancery 
 Court. Since 1872 they have exercised, though rarely, the right to 
 incorporate trustees. When an application for a scheme has been made 
 under the Amending Act of 1860 (sects. 2, 4), the application cannot be 
 withdrawn ; the applicant, unlike an ordinary plaintiff, is not dominus 
 litis : In re Poor's Lands Charity, Bethnal Green ([1891] 3 Ch. 400). 
 Although application by a trustee or persons interested is usually 
 necessary before they can introduce a new scheme, in certain cases, e.g. 
 in the case of certain schools endowed more than fifty years ago (32 & 
 33 Vict. c. 56), and in the case of the, endowments of certain dissolved 
 municipal corporations (46 & 47 Vict. c. 18) and City parochial 
 charities (46 & 47 Vict. c. 36), they prepare new schemes on their own 
 initiative. Again, under sects. 17 and 19 of the Act of 1853, no 
 private person can commence proceedings in the matter of a charity 
 
CHARITY—THE GY-PBES DOCTRINE. 53 
 
 without obtaining the certificate of the Commissioners ; although the 
 Court ought not to dismiss an action on that ground without giving 
 plaintiff an opportunity of ascertaining whether the Commissioners 
 will grant the necessary certificate : Bendall v. Blair (45 Ch. D. 139), 
 explained Booke v. Dawson ([1895] 1 Ch. 480). 
 
 But the discretion of the Charity Commissioners (1) is still subject but are', 
 to review by the Court if abused within the meaning of the leading sub ject to 
 case (compare In re Burnham National Schools (17 Bq. 241)) ; (2) * "lifi 
 their jurisdiction is not co-extensive in area with that of the Chancery tions. 
 Division. Sect. 62 of the Act of 1853 totally exempts (inter alia) 
 universities, colleges (including Eton and Winchester), cathedrals and 
 collegiate churches, buildings registered and used for religious worship 
 (compare 57 & 58 Vict. c. 35), Queen Anne's Bounty, and the British 
 Museum; friendly societies and religious and other societies are 
 partially exempted ; that is to say, are exempted in so far as they are 
 maintained by voluntary subscriptions or gifts applicable as income. 
 
 (3.) Their jurisdiction only arises when there are endowments (see 
 sect. 66 of the Act of 1853). Endowments do not necessarily mean 
 permanent endowments, In re Sir Booert Peel's School (L. B. 3 Ch. 
 543), but will include the case of a gift applicable at any moment as 
 income, if its trustee has treated it, and intends to treat it, as income- 
 producing capital ; and in this case the Commissioners can demand 
 accounts : In re Gilchrist Educational Trust ([1895] 1 Ch. 367). But 
 the word " endowments " in sect. 66 must be read along with the 
 references to income in sect. 62 in the case of mixed charities, i.e. 
 charities partly supported by voluntary subscriptions. In the case of 
 mixed charities they can only interfere when the trustees are bound to 
 separate the gift into capitaL and income : In re Clergy Orphan Cor- 
 poration ([1894] 3 Ch. 145). If on either of the above grounds the juris- 
 diction of the Commissioners is ousted, it is the practice of the Court 
 to direct payment of the fund to the trustee, giving leave to apply : In 
 re Lea, Lea v. Cooke (34 Ch. D. 528) ; or, in cases where the trustee 
 has repudiated his trust, the Court will direct a scheme : Pocock v. 
 Attorney- General (3 Ch. D. 342). 
 
 See generally Tudor's Law of Charities and Mortmain, 3rd ed. 
 
 Note I. 
 
 A question arose in Wharton v. Masterman ([1895] A. C. 186) 
 whether the Thellusson Act (39 & 40 Geo. III. c. 98)— which forbids 
 accumulations of income for more than twenty-one years from the death 
 of the settlor or testator, or for the other periods therein-mentioned 
 (compare notes to In re Holford, infra, p. 274), and whether the limi- 
 tation which case law has imposed upon this principle, namely, that 
 the direction to accumulate beyond the period was only void if effective, 
 and was ineffectual if the beneficiary could claim the accumulations as 
 his own — applied to charities. It was held that the limitation upon 
 the principle did so apply. 
 
54 TBUSTS IN FRAUD OF CREDITORS, OR 
 
 Note II. 
 
 Since 1217 restrictions have been placed on conveyances or devises to 
 uses which eventually included " charitable uses " by the Mortmain 
 Acts. These Acts were consolidated and amended (51 & 52 Vict. c. 
 42), and the latter was amended (54 & 55 Vict. c. 73). Under the 
 first Act assurances, if voluntary, must reserve nothing except as 
 therein stated for the assuror ; all assurances must be made by deed 
 executed in the presence of two witnesses twelve months before trie death 
 of the assuror, and enrolled within six months of execution. These 
 provisions apply to personalty, subject to a trust for conversion, and the 
 requirements are slightly different in the case of stock. (See as to 
 what constitutes " an interest in land," sect. 3 of the Act of 1891, 
 and In re Pickard, Elmsley v. Mitchell ([1894] 2 Ch. 88) ; In re 
 Parker, Wignall v. Park ([1891] 1 Ch. 682.) These provisions no 
 longer apply to wills since the Act of 1891, In re Hume, Forbes v. 
 Hume ([1895] 1 Ch. 422), which can, since the date of the Act, In re 
 Bridger, Brompton Hospital for Consumption v. Lewis ([1894] 1 Ch. 
 297) pass land ; but the land, if not sold within a year of testator's 
 death, or within such additional period as the Charity Commissioners 
 or Court prescribe, will be forthwith sold by or under the direction 
 of the Charity Commissioners. 
 
 Trusts in Fraud of Creditors, or 
 Voluntary Settlements. 
 
 FREEMAN v. POPE. 
 
 (L. R. 5 Ch. 538). 
 
 Principle. A voluntary settlement may he set aside under 
 
 13 Eliz. c. 5, without proof of actual intention to 
 defeat, hinder or delay creditors, if, under the cir- 
 cumstances, the instrument will necessarily have 
 that effect. 
 
 Summary The settlor, who was under pressure from his creditors, 
 made a voluntary settlement of such an amount of his 
 property as to render the residue insufficient to pay his 
 
VOLUNTARY SETTLEMENTS. 
 
 55 
 
 creditors at that date. The settlement was set aside 
 at the suit of a person who subsequently became his 
 creditor. 
 
 This case is often cited as the leading authority upon the subject 
 of settlements " with intent to delay or defraud creditors." In In re 
 Bidler, Bidler v. Bidler (22 Ch. D. 74), Jessel, M.R., in the course of 
 the argument (p. 78), asked, " Do you dispute the law as laid down 
 in Freeman v. Pope ? " and was at once met by an emphatic negative. 
 
 James, V.C., before whom the case originally came, and whose decision 
 setting aside the settlement was upheld by the Court of Appeal, seems 
 to have felt a difficulty whether if the case had come before him as a 
 special juryman, he could have arrived at the conclusion that the 
 settlor had any intention to defeat or delay his creditors. On this 
 point the Court of Appeal stated that, the fact being once established 
 that the settlor had not left sufficient property outside the settlement 
 to pay his debts, it was unnecessary " to speculate as to what was 
 passing in his mind." 
 
 " There is," said G-iffard, L. J., " one class of cases in which an actual 
 and express intent is necessary to be proved, as in Holmes v. Penney 
 <3 K. & J. 90) and Lloyd v. Attwood (3 De G. & J. 614), where the 
 instruments sought to be set aside were founded on valuable con- 
 sideration; but where the instrument is voluntary, then the intent 
 may be inferred in a variety of ways. For instance, if after deducting 
 the property which is the subject of the voluntary settlement, sufficient 
 available assets are not left for the payment of the settlor's debts, then 
 the law infers intent, and it would be the duty of a judge, in leaving 
 the case to the jury, to tell the jury 'that they must presume that that 
 was the intent. Again, if at the date of the settlement the person 
 making the settlement was not in a position actually to pay his 
 creditors, the law would infer that he intended, by making the volun- 
 tary settlement, to defeat and delay them." This statement of the 
 law has not been questioned except by some obiter dicta of Lord Esher, 
 M.E., in Ex parte Mercer (ubi infra). 
 
 The statute 13 Bliz. c. 5, makes all conveyances of lands or goods, 
 or any lease thereof or profit thereout, made with intent to delay, 
 hinder, or defraud creditors or others of their lawful actions, debts, 
 damages, etc., void against the creditors or persons having the right 
 to such actions, debts, etc. Sect. 2 imposes penalties and forfeitures 
 on all persons who are parties to fraudulent conveyances. By sect. 5, 
 however, the Act is not to extend to any estate or interest in land for 
 good consideration and bona fide conveyed to any person not having 
 at the time notice of the fraud. The principle on which this statute 
 proceeds (which, it will be observed, is not, like 27 Bliz. c. 4, confined 
 to lands) was stated by Lord Mansfield in Gadogan v. Kennett (Cowp. 
 432) to be declaratory of the Common Law, and by Lord Hatherley 
 
 This is the 
 
 leading 
 
 case, 
 
 not for 
 actual, 
 
 but for pre 
 sumptive 
 fraud on 
 creditors, 
 
 under 
 13 Eliz. 
 c. 5. 
 
 A declara- 
 tory Act. 
 
56 TRUSTS IN FRAUD OF CREDITORS, OR 
 
 Against 
 whom void. 
 
 What is a 
 conveyance 
 for value : 
 
 are 
 holds ? 
 
 are family 
 arrange- 
 ments 1 ? 
 
 Settle- 
 ments on 
 collaterals 
 are not for 
 value. 
 
 Gifts are 
 settle- 
 ments for 
 bank- 
 ruptcy 
 purposes. 
 
 in the leading case to be that persons " must be just before they are 
 generous, and that debts must be paid before gifts can be made." 
 
 Since the leading case it has not been open to question that creditors, 
 subsequent to the date of the settlement, can impeach it. Compare 
 Taylor v. Ocenen (1 Oh. D. 636) ; the dicta in old cases to the opposite 
 effect (e.g. by Sir W. Grant, in 12 Ves. 155) are no longer law. Volun- 
 tary creditors have the same rights as creditors for value : Adames v. 
 Eallett (6 Eq. 468). 
 
 An assignment of leaseholds subject to onerous covenants is not a 
 voluntary conveyance within the meaning of 27 Eliz. c. 4, now super- 
 seded by 56 & 57 Vict. c. 21 : Price v. Jenlcins (5 Ch. D. 619) ; but 
 this principle would seem not to be applicable to cases arising under 
 the 47th sect, of the Bankruptcy Act, 1883 : Ex parte Eillman, In re 
 Pumfrey (10 Oh. D. 622) and In re Brail ([1893] 2 Q. B. 381), 
 but see In re Ddble (38 L. X. 183) (see note below), or under 13 
 Eliz. c. 5 : In re Ridler, Ridler v. Ridler (22 Ch. D. 74). This statute, 
 according to Sir G. Jessel, M.E., " could not mean that, if some obliga- 
 tions attaching to the property went to the new owner in exoneration 
 of the settlor, that made the conveyance a conveyance for valuable 
 consideration. Consider the consequences of such a proposition. 
 Suppose a man transfers £10,000 worth of railway shares or bank 
 shares which are not fully paid up, is that prevented from being a 
 voluntary transfer by the mere fact that the transferor is exonerated 
 from the liability to calls, and the transferee becomes subject to it ? " 
 Sir G. Jessel's language seems of general application ; but in Harris 
 v. Tubb (42 Ch. D. 79) Kekewich, J., treated the principle as laid 
 down in Price v. Jenkins as the rule, and the principles laid down 
 in Ex parte Hillman and In re Ridler as exceptions to this rule. 
 But see In re Duke of Marlborough, Davis v. Whitehead ([1894] 
 2 Ch. 133). See ante, p. 28. 
 
 In re Johnson, Golden v. Gillam (20 Ch. D. 389) — a settlement by 
 a widow of the whole of the property in consideration of the settlor's 
 daughters paying her debts connected with her freehold farm, and 
 maintaining her — was supported as for value and a family arrangement, 
 although it defeated one of her general creditors. Where the settlor's 
 father brings property into settlement, the settlement though post- 
 nuptial is for value : Hance v. Harding (20 Q. B. D. 732). See notes 
 to Williams v. Williams (pp. 294, 295). 
 
 Collaterals are not within the consideration of an ante-nuptial 
 settlement ; so that if the marriage is childless, the settlement by the 
 wife can be set aside subject to the interest settled on the husband, 
 Smith v. Cherrill (4 Eq. 390), and the children of a former marriage : 
 Gale v. Gale (6 Ch. D. 144). 
 
 A "settlement" within the meaning of the Bankruptcy Acts in- 
 cludes transfers, e.g. a gift of diamonds by a husband to his wife: 
 In re Vansittart, Ex parte Brown ([1893] 1 Q. B. 181). 
 
 The following cases explain themselves : — 
 
 A father gave a bank a written guarantee for repayment of the 
 
VOLUNTARY SETTLEMENTS. 57 
 
 balance on his son's account not to exceed £1000. Five years Cases of 
 afterwards, when the son's account was overdrawn by £1500, the voluntary 
 father made a voluntary settlement on himself for life with remainders se ' tle ™ eilt 
 over of nearly the whole of his property, except a debt due from the 
 son to him of £1500. The son subsequently became bankrupt, and 
 after the father's death the settlement was set aside at the instanceof 
 the bank : In re Ridler (22 Ch. D. 74). 
 
 A solvent trader made a voluntary settlement of all his property, 
 present and future, reserving the control of his stock-in-trade to him- 
 self, and five years later became bankrupt : the settlement was set 
 aside : Ware v. Gardner (7 Eq. 317). 
 
 A trader made a post-nuptial settlement at a time when he was 
 about to embark in a new business of which he knew nothing, and 
 failed six years later. The settlement was set aside. His solvency 
 at the date of the settlement was questionable : Ex parte Russell, In 
 re Butterworth (19 Oh. D. 588) ; Mackay v. Douglas (14 Bq. 106) ; 
 Crossley v. Elworthy (12 Eq. 158). 
 
 A solvent debtor of weak mind was induced by his children to 
 distribute his estate subject to an annuity. The children desired to 
 defeat the creditors ; therefore the settlement was set aside : Cornish 
 v. Clark (14 Eq. 184). Contrast In re Johnson {supra). 
 
 The settlor's property was sufficient to pay creditors, and he had Cases of 
 no intention to defeat or delay creditors : Kent v. Riley (14 Eq. voIuntar y 
 
 j (-.^x S6ttl6I06Ilt 
 
 19 °)- upheld. 
 
 A ship's captain made a post-nuptial settlement while there was an 
 
 action for breach of promise pending against him. He had no other 
 
 liabilities at that date. He afterwards had £500 damages given against 
 
 him in the action. As this liability was at the date of the settlement 
 
 "highly speculative," the settlement was upheld: Ex parte Mercer, 
 
 In re Wise (17 Q. B. D. 290). Compare Reg. v. Hopkins [1896] 
 
 1 Q. B. 652. 
 
 If the contingent liability at the date of the settlement " is so 
 remote that it would not enter into any one's calculations, the exist- 
 ence of the contingent liability would not make a settlement bad. 
 For instance, if a person had taken shares in the Glasgow Bank at a 
 time when everybody believed them to be a valuable property, it 
 would be difficult to hold that a settlement made by hira while the 
 bank was in good credit was invalid, though the liability ultimately 
 turned out ruinous : " per Lord Selborne, in In re Ridler (ubi supra). 
 
 Bond fide sub-purchasers for value (who are protected by sect. 5 Cases of 
 of the Act) include equitable mortgagees : Halifax Joint Stock Banking sub-par- 
 Co. v. Gledhill ([1891] 1 Ch. 31). ' ^ s for 
 
 Cases under the Bankruptcy Acts (see Note below) proceed on the 
 principle that the settlement is in reality "voidable" not void; and 
 it is for this reason that mesne transactions for value are protected. 
 See In re Brail, Ex parte Norton ([1893] 2 Q. B. 381), where the 
 mortgagee had notice of the settlement ; In re Holden (20 Q. B. D. 
 43), where trustees' lien for expenses was upheld. But see Button v. 
 
58 
 
 TRUSTS IN FRAUD OF CREDITORS. 
 
 Cases of 
 ante- 
 nuptial 
 settle- 
 ments set 
 aside ; 
 
 upheld. 
 
 Laches. 
 
 Thompson (23 Ch. D. 278) as to trustees' costs of action. Sanguinetti 
 v. Stuckey's Banking Co. ([1895] 1 Oh. 176) and In re Farnham (a 
 lunatic) ([1895] 2 Ch. 799) decided that the settlement when avoided 
 was avoided for every purpose ; this must net be taken as infringing 
 upon the principle of In re Brail and In re Eodlen. In re Briggs 
 and Spicer ([1891] 2 Oh. 127), only decided that a purchaser may 
 object to a voluntary settlement if less than ten years old. 
 
 Where in an ante-nuptial settlement there is evidence of an intent 
 by all parties to defeat and delay creditors, and to make the celebra- 
 tion of marriage part of a scheme to protect property agaiDst the rights 
 of creditors, the settlement is void : Colombine v. Fenhall (1 Sin. & 
 G. 228) ; Bulmer v. Hunter (L. R. 8 Bq. 46), where the previous 
 authorities are collected. 
 
 A settlor was insolvent and the ante-nuptial settlement contained 
 a false recital : the settlement was upheld because the wife was not a 
 party to the intention to defraud creditors : Kevan v. Crawford (6 Ch. 
 D. 29). 
 
 The rule of acquiescence or laches barring the remedy (vigilantibus 
 non dormientibus suhvenit equitas) does not apply to any of these cases, 
 because they arise on a statute : In re Maddever, Three Towns Banking 
 Co. v. Maddever (27 Oh. D. 523). 
 
 Note. 
 
 Bankruptcy Under sect. 47 of the Bankruptcy Act, 1883, all settlements except 
 Act, 1883. (iy ante-nuptial settlements, (2) settlements in favour of a bond fide 
 incumbrancer or purchaser for value, (3) post-nuptial settlements of 
 property acquired in right of the wife after marriage, are void against 
 the trusteee in bankruptcy if the settlor becomes bankrupt within two 
 years of the date of settlement. They are also void if the bankrupt 
 becomes bankrupt within ten years, unless the parties claiming under 
 the settlement can prove (1) that the settlor was at the time of making 
 the settlement able to pay all his debts without the aid of the property 
 settled; (2) that the settlor's interest in the property settled had 
 passed to the trustee of the settlement on the execution thereof. 
 
 See the decisions on the statute collected in the notes to Twyne's 
 Case, 1 Smith's Leading Cases, p. 1 ; and see May on Fraudulent 
 Conveyances, ed. Worthington. 
 
TBUSTS FOB CBEDLTOBS. 59 
 
 Trusts for Creditors. 
 
 JOHNS v. JAMES. 
 
 (8 Oh. D. 744.) 
 
 A trust deed by which property is conveyed for the Principle. 
 benefit of creditors does not of itself create a trust for 
 any of the creditors. 
 
 Meyrick, who owed Johns £3500, conveyed his pro- Summary 
 
 , , . r, "of facts. 
 
 perty to James, and gave him a power oi attorney to 
 collect all his assets, and James was then to stand 
 possessed of the moneys to be received and got in on 
 trust to pay all debts due from Meyrick, including the 
 £3500 due to Johns. Meyrick became bankrupt. James 
 collected his assets, but did not pay Johns' debt. Johns 
 then commenced an action against James claiming an 
 account, and that the estate might be administered, and 
 the debts of himself and other creditors satisfied. The 
 Court of Appeal decided on demurrer that the action was 
 not maintainable. 
 
 derdale. 
 
 In this case, the Court confirmed and acted on the principle estab- Garrard v. 
 lished by Garrard v. Lord Lauderdale (3 Sim. 1), affirmed on appeal Lorf ^ aUm 
 (2 Buss. & My. 451). The Lords Justices in delivering judgment in 
 this case, said that it was too late now to repeat the doubts which 
 had been expressed as to the original propriety of the decision in 
 Garrard v. Lord Lauderdale, which they were not disposed to share. 
 Some observations had been made in 1845 by Vice-Chancellor Knight 
 Bruce, and in 1849 by Vice-Chancellor Wigram, indicating disapproval 
 of that case ; but, as they pointed out, " thirty years have elapsed 
 since the last of those dicta was pronounced ; and Wallwyn v. Coutts 
 (3 Mer. 707), Garrard v. Lord Lauderdale, and Acton v. Woodgate 
 (2 My. & PL 492) have ever since been recognized and acted upon, 
 and they were distinctly recognized and spoken of with approbation 
 in the House of Lords by the Lord Chancellor and Lord Cranworth, in 
 the year 1858, in the case of Montefiore v. Browne (7 H. L. C. 241)." 
 
60 
 
 TRUSTS FOR CREDITORS. 
 
 These 
 deeds 
 
 create only 
 ■ an agency, 
 
 or man- 
 date, 
 
 which 
 circum- 
 stances 
 may con- 
 vert into a 
 trust for 
 creditors. 
 
 In the celebrated case of Garrard v. Lord Lauderdale (ubi supra) 
 there was an assignment of certain personal property to trustees in 
 trust to sell, and to pay out of the proceeds of sale certain scheduled 
 debts not exceeding £50 each, and "to divide the residue among the 
 several creditors . . . parties to the deed." Plaintiff was a scheduled 
 creditor, but for £191 3s., and the assignor's agent gave him notice 
 of the deed. Neither he nor any other creditor executed, and so 
 became a party to the deed. It was held that he acquired no rights 
 under it, as it was "a private arrangement for the convenience of 
 the debtor," and there was no trust for creditors. Sir L. Shadwell, 
 V.C., dealt, however, with the question of notice ambiguously, and 
 Lord Brougham, L.C., igDored the difficulty. 
 
 In the leading case (8 Ch. D. 749) James, L.J., said that the case 
 of Garrard v. Lord Lauderdale proceeded upon the plainest notions of 
 common sense. " It is quite obvious," he said, " that a man in pecuniary 
 difficulties, having a great number of debts which he could not meet, 
 might put his property in the hands of certain persons to realize and 
 pay the creditors in the best way they could. It was held in Garrard 
 v. Lord Lauderdale that really after all that is only making those par- 
 ticular persons who are called trustees his agents or attorneys. There 
 might be a power of attorney for them to realize all bis property and 
 relieve him from the difficulties he was in. If it were supposed that 
 such a deed as that created an absolute irrevocable trust in favour of 
 every one of the persons who happened at the time to be a creditor, 
 the result might have been very often monstrous. It would give 
 him no opportunity of settling an action, no opportunity of getting 
 any food for himself or his family the next day, or redeeming property 
 pledged." It was further pointed out in the same judgment that the 
 result of holding that such a deed created an absolute trust in favour 
 of every creditor would be that the unfortunate trustee might be 
 liable to a thousand actions, for he could not stop any of them till a 
 judgment was made in favour of all the creditors. 
 
 The principle on which these decisions are based is that such a deed 
 is to be construed as a mandate, just as when a man gives his servant 
 money with directions to pay a debt, that does not of itself create 
 any right in favour of the creditor. The right to direct how and to 
 whom the money is to be paid remains in the person who has put the 
 money in the hands of the agent. 
 
 Circumstances may, however, have occurred or may exist which 
 transform the mandate into a trust in favour of some person or 
 persons. "If the creditor," said Lord Justice James, "has executed 
 the deed himself, and been a party to it, and assented to it — if he has 
 entered into obligations upon the faith of the deed, of course that 
 gives him a right, just as in the case where a man receives a direction 
 from his creditor to pay some other person instead of paying him, and 
 he communicates it to this person. The person to whom he com- 
 municates it of course has a legal right to have the money so applied, 
 but that does not enure for the benefit of any other person or persons to 
 
TB LISTS FOB CBEBITOBS. 
 
 61 
 
 whom no such communication has been made." Compare an observa- 
 tion of Lord St. Leonards in Browne v. Cavendish (1 Jon. & Lat. 606, 
 636), that he should be sorry to have it understood that a man may 
 create a trust for creditors, communicate it to them, and obtain from 
 them the benefit of their lying by until perhaps the legal right to sue 
 was lost, and then insist that the trust was wholly within his power. 
 An attempt was made to extend the principle thus stated to the case 
 of an agency to pay debts where there was no trust deed, but without 
 success : Henderson v. Bothschild (33 Ch. D. 459 ; affirmed 35 W. E. 
 485). 
 
 In Earland v. Binhs (15 Q. B. 713), it was decided that if the 
 assignor's agent communicates the deed to a creditor, the creditor is 
 in the absence of other evidence turned into cestui que trust. In In 
 re Briber's Trusts (L. B. 10 Bq. 554) the deed contained a clause 
 excluding from its benefit creditors who did not execute it in six 
 months. A creditor who was told of the deed, but not of this clause, 
 was regarded as cestui que trust under the deed, although he had not 
 executed it within the prescribed time. 
 
 In In re Meredith, Meredith v. Facey (29 Ch. D. 745), a proviso 
 enabling creditors to execute the deed at any time after its date was 
 held valid, but incumbrancers who had unsuccessfully claimed against 
 the deed were not allowed afterwards to execute it and take its benefit. 
 A trust deed for creditors as long as it is a mere mandate is re- 
 vocable by the settlor ; but as soon as some creditor becomes cestui que 
 trust under it, it becomes irrevocable until the claim of that creditor 
 is satisfied : Griffiths v. Bicketts (7 Hare 307). Nevertheless, until 
 revoked, the trustee can act on it : Olegg v. Bees (L. E. 7 Ch. 71). 
 
 In In re Sanders' Trusts (47 L. J. Ch. 667) the trust deed declared 
 that the moneys assured by certain policies on the debtor's life should 
 be held by the trustees, who were also creditors as security for the 
 payment to certain creditors parties to the deed of the several debts 
 therein mentioned. One of the creditors, named Stevens, never 
 executed the deed, and it was never communicated to him. It was 
 held that after the debtor's death his executor was at liberty to revoke 
 the trusts declared by the deed in favour of Stevens. " It is clear," 
 said the Judge, " that this deed, executed by Sanders for the benefit 
 of his creditors, is binding on him, and all claiming under him, in 
 favour of those creditors to whom the fact of the execution of the 
 deed was communicated. But it is equally clear that the debtor is 
 at liberty to revoke the trusts of the deed with regard to all those 
 creditors to whom the fact of its execution had not been communi- 
 cated. . . . The law is thoroughly settled that such a trust is not 
 binding on the author of it, but is revocable by him at any time 
 before the fact of the execution of the deed has been communicated to 
 the creditor." 
 
 It was decided in Godfrey v. Poole (13 App. Cas. 497), that a Bank- 
 creditors' trust deed is not evidence of an intention to delay or defeat ruptcy,etc, 
 creditors, and therefore void under 13 Eliz. c. 5. Until 27 Eliz. c. 4 legislation. 
 
 Cases of 
 revoking 
 the trust 
 deed. 
 
62 
 
 TRVS1S FOR CREDITORS. 
 
 Two ap- 
 parently- 
 irrevocable 
 trust deeds 
 for 
 creditors. 
 
 was superseded by 56 & 57 Vict. c. 21 these assignments while 
 voluntary could be defeated by subsequent sales for value. 
 
 Creditors' trust deeds must not create preferences, otherwise they 
 will be void as against a trustee in bankruptcy under sect. 48 of the 
 Bankruptcy Act, 1883. If bona fide, they are " an act of bankruptcy " 
 (sect. 4 (1) (a)), and will justify a petition in bankruptcy if presented 
 within three months (sect. 6 (1) (c)). If and so long as they are 
 voluntary they are void if made within two years of the bankruptcy 
 of the assignor (sect. 47). "Deeds of arrangement" (which term 
 includes creditors' trust deeds) dated after January 1st, 1888, are void 
 unless registered within a week after the first execution thereof 
 (50 & 51 Vict. c. 57 ; amended 53 & 54 Vict. c. 24). 
 
 In Cooke v. Smith ([1891] A. C. 297), a curious question arose as to 
 a creditors' deed. The partners in a business executed a deed in which 
 they recited the inability of the firm to pay the creditors in full. 
 They then assigned the business and the property of the firm to 
 trustees upon trust, either to carry on the business, or sell the busi- 
 ness and assets, and "pay and divide the clear residue of the said 
 profits and moneys unto and among all and singular the creditors of 
 the said firm in rateable proportions according to the amount of their 
 several and respective debts." The creditors executed the deed; so 
 there was no question on that score. But the business, contrary to 
 expectation, was carried on and sold so as to realize a surplus after 
 payment of all debts. As there was no provision for this contingency 
 in the trust deed, it was argued and held in the Court of Appeal 
 (45 Ch. D. 38) that there was a resulting trust of the surplus to the 
 assignor ; but this view was not adopted in the House of Lords, which 
 held that the deed was an out-and-out assignment of all the debtor's 
 property, and that the surplus was distributable among the creditors 
 "in rateable proportions." Contrast Green v. Wynn (L. E. 4 Ch. 
 204) ; May v. May (33 Beav. 81). 
 
 In Godfrey v. Poole (ubi supra) a creditor's trust deed disposed of 
 the residue (after payment of debts) in favour of the debtor's family, 
 and was therefore irrevocable. 
 
RELIEF TO DEBTORS. 63 
 
 Relief to Debtors, or Penalties and Forfeitures. 
 
 WALLIS v. SMITH. 
 
 (21 Ch. D. 243.) 
 
 The Court in deciding whether a sum of money Principle. 
 payable on breach of a condition is to be treated as a 
 penalty or as liquidated damages, proceeds on the 
 principle that the primary object is to ascertain the 
 intention of the parties, but in ascertaining that in- 
 tention the Court will have regard to the principles 
 established by decided cases. 
 
 Wallis contracted to sell an estate to Smith for Summary 
 
 of facts. 
 £70,000, which was to be gradually expended by Smith 
 
 in building on the estate. £5000 was to be deposited 
 
 in their joint names in part payment of the £70,000, 
 
 and after being so deposited was to be expended by 
 
 Smith like the rest of the purchase money. Part of 
 
 the deposit (£500) was to be paid on the execution of 
 
 the contract. Clause 25 of the agreement provided 
 
 that if Smith should commit any substantial breach 
 
 of the contract in not diligently carrying out the works, 
 
 or in not performing any of its provisions, the deposit 
 
 of £5000 or a sum of £5000 should be forfeited "as 
 
 liquidated damages." 
 
 Smith neither paid the £500 nor performed any part 
 
 of the contract. Held, by the Court of Appeal, that 
 
 Wallis was entitled to £5000 as liquidated damages. 
 
 The Courts as a rule maintain contracts, and this has been trie Equity and 
 principle of equity at any rate since Lord Eldon's time. " He " (Lord Contract. 
 Eldon) "perfectly well knew that whatever had been the doctrine 
 of equity at one time, it was not then the doctrine of equity to give 
 
64 
 
 RELIEF TO DEBTORS, OR 
 
 I. Single 
 agreement 
 to pay a 
 large on 
 non-pay- 
 ment of a 
 smaller 
 
 relief on the ground that agreements were oppressive where the 
 parties were of full age and at arm's length" (per Sir Gr. Jessel, M.R., 
 in the leading case, p. 260). " I have always thought," said Jessel, 
 M.R., " and still think, that it is of the utmost importance as regards 
 contracts between adults — persons not under disability, and at arm's 
 length — that the Courts of law should maintain the performance of 
 the contracts according to the intention of the parties ; that they 
 should not overrule any clearly-expressed intention on the ground 
 that judges know the business of the people better than the people 
 know it themselves. I am perfectly well aware that there are excep- 
 tions, but they are exceptions of a legislative character " (p. 266). 
 (For an instance of the latter, see note.) 
 
 What, then, is the origin of the exception to this rule, that when 
 parties to an agreement say " liquidated damage " they are often 
 taken to mean " penalty," i.e. compensation for actual loss sustained ? 
 Common law judges assigned its origin to " equitable relief against 
 forfeiture," but Sir Gr. Jessel showed that since Lord Eldon's time 
 equity has disclaimed responsibility for the doctrine. 
 
 Sir G. Jessel, M.R., laid down four rules as the result of the cases. 
 It will, however, be advisable to preface his four rules with three 
 rules applicable to a contract to pay a penal sum for breach of a single 
 condition, and the seven rules may be stated thus : — 
 
 I. Where a man agrees to pay a larger amount if he does not pay 
 a smaller amount, the larger amount is only named by way of 
 penalty. 
 
 A. B. agrees by bond to pay £1000 by way of liquidated damages 
 if he does not pay £500 and interest a year hence. The £1000 is 
 penalty (4 & 5 Anne, c. 16, ss. 12, 13). See natton v. Harris 
 ([1892] A. C. 547). A. B. agrees in a mortgage deed to pay 4 
 per cent, interest, and if unpunctual to pay 5 per cent. Five per 
 cent, is penalty. Secus, if A. B. agrees to pay 5 per cent, reducible 
 to 4 per cent, interest ; and secus, if he agrees to pay the additional 
 percentage by way of commission : General Credit and Discount Co. 
 v. Olegg (22 Ch. D. 549). Where A. B. agrees by mortgage bond to 
 pay the whole mortgage debt as soon as any instalment is overdue ; 
 — the whole sum is due as liquidated damage when the condition 
 occurs : Wallingford v. Mutual Society (5 App. Cas. 685). Similarly, 
 where A. B. agrees to pay C. D. his whole debt, if he does not pay 
 a smaller sum on such and such a day, C. D. agreeing if A. B. does 
 pay the smaller sum as mentioned, to cancel the balance : Thompson v. 
 Hudson (L. B. 4 H. L. 1). And again, A. B. agrees to an award 
 whereby he has to pay £1200 annuity to C. D., and if not secured an 
 extra £100 per month until secured, such extra £100 to be by way of 
 penalty and additional to the annuity. The extra £100 was held to 
 be liquidated damages : Parfltt v. Chambre, Ex parte D'AUeyrac 
 (15 Eq. 36). 
 
 The principle of these cases is that there is on the face of a docu- 
 ment no consideration for more than a given sum. The agreement 
 
PENALTIES AND FORFEITURES. 
 
 65 
 
 is void in so far as it exceeds the sum named ; it can only be valid 
 if construed as a penalty. But the sum mentioned as a penalty is 
 not merely nominal ; it is the maximum recoverable : Eatton v. 
 Harris (ubi supra). 
 
 II. If a man agrees to pay a large amount by way of liquidated 
 damage for a breach of covenant which is trivial, the large amount 
 is penalty. 
 
 A. B. agrees that his agent will sign a bill of lading when presented, 
 or else he will pay 4d. per ton per day until signature. The damage 
 caused by the breach was nominal, but would have been £488 16s. 
 under the contract. Nominal damages were awarded : Jones v. Hough 
 (5 Exch. D. 115) ; Rayner v. The Rederiaktiebolaget Condor ([1895] 2 
 Q. B. 289) ; The Princess (70 L. T. 388). 
 
 III. In any case other than those coming under the first or second 
 class a contract to pay a penal sum for breach of a single condition is 
 presumed to mean liquidated damages. 
 
 A railway company agrees to pay a penalty of £100 per acre and 
 interest if certain land is not levelled and soiled on such and such a 
 day. This is liquidated damage : Lord Elphinstone v. Monkland Iron, 
 etc., Co. (11 App. Cas. 332). 
 
 A contractor agrees to pay £100 if certain works are not complete 
 on such and such a day, and £5 per week until completion. This 
 is liquidated damage : Law v. Local Board of Redditch ([1892] 
 1 Q. B. 127). 
 
 A public-house keeper agreed to pay his lessor £50 if convicted of 
 contravening the Licensing Act. The £50 was liquidated damage: 
 Ward v. Monaghan ([1895] W. N. 123). 
 
 Difficulties occur in applying these rules to cases where there is an 
 agreement with many terms and the penalty (or liquidated damage) 
 is for breach of any one term. These cases, according to Sir G-. Jessel 
 in the leading case, are regulated by four rules (which we shall 
 number IV. to VII.). 
 
 IV. Where any one term is the payment of a sum less in amount 
 than the penal sum, the penal sum is penalty. In the three following 
 cases A. B. contracted to pay the penal sum if any breach of any term 
 occurred. 
 
 A. B. agrees to pay £1000 as liquidated damages in case of breach, 
 and one term is to pay £10 per week in a certain event. The 
 £1000 is penalty for any breach of any term : In re Newman, Ex parte 
 Capper (4 Ch. D. 724). 
 
 A. B. agrees to pay £1000 as liquidated damages in case of breach, 
 and one term is to pay £3 6s. 8d. a day. The £1000 is penalty 
 for any breach of any term : Kemble v. Farren (6 Bing. 141). 
 Compare Astley v. Weldon (2 B. & P. 346). 
 
 A. B. agrees that all payments made to C. D. (the vendor) should be 
 forfeited as liquidated damages in case of breach, and one term is to 
 pay the purchase-money by instalments of £4200. Payments made 
 included £1400 (which the Court held to be part payment of the 
 
 II. Or on 
 
 non-per- 
 formance 
 of a trivial 
 condition. 
 
 III. Or on 
 non-per- 
 formance 
 of any 
 other 
 condition. 
 
 IV. Agree- 
 ment with 
 many 
 terms, one 
 of which 
 is as in I. 
 
66 RELIEF TO DEBTORS, OR 
 
 purchase-money, but not deposit) and £450 for machines not yet 
 supplied. The £1850 is penalty for any breach of any term. On 
 any other construction if A. B. had paid two instalments and failed 
 to pay the third, he would have forfeited at least £8400 for not 
 paying £4200: Barton v. Capewell Continental Patents Co. (68 
 L. T. 857). 
 
 And note on the point cf construction : In the leading case the 
 payment of £500 was not regarded as within the "substantial 
 breaches " referred to in clause 25 ; and in Catton v. Bennett 
 (51 L. T. 70) a proviso, " should the purchaser refuse to carry out 
 the above arrangement " he should forfeit £500, was not construed as 
 meaning " any of the terms of the above arrangement," but " the 
 above arrangement as a whole ; " so that the case came within the 
 rule of Lord Elphinstone v. MonMand Iron Co. (uhi supra). 
 
 V. Or as V. Where any one term is or must be of trivial value, having 
 iu II. regard to the penal sum, it would follow, from the analogy of Rule II., 
 
 that the penal sum should be construed as penalty ; and this is the 
 case where one term is necessarily of greater value than another : 
 Willson v. Love ([1896] 1 Q. B. 626). In Wallis v. Smith this rule 
 was treated as resting merely on dicta, which were far from conclusive. 
 In addition to the dicta criticized by the Master of the Eolls in his 
 judgment in the leading case, the following may be mentioned: — 
 
 Lord Westbury, L.C., said, in Thompson v. Hudson (L. R. 4 
 H. L. 1, 30) thus : " It was an oppressive agreement, the sum named 
 never could have been the proper amount of damages arising upon the 
 non-observance of some of the stipulations of that agreement, which 
 probably would have been measured by a few shillings." But the 
 case to which he referred (Kemhle v. Farren) comes under the first 
 head, and the allusions to " oppression " are not consistent with the 
 principle that equity maintains contracts (see above). 
 
 A similar dictum was uttered by Lord Watson in Lord Elphinstone 
 v. MonMand Iron Co. (11 App. Cas. 332, 342), but the decision was 
 that the principle had no application to the case which he was 
 considering. 
 
 VI. Or as VI. Subject to IV. and V., the sum named as liquidated damage 
 in III. will he construed literally as such. In bringing .the leading case 
 
 under this head, Sir G-. Jessel expressed his disagreement with certain 
 dicta, which suggested that where terms varied in importance the 
 penal sum was mere penalty. These dicta have, however, been 
 followed by Willson v. Love (supra). 
 
 VII. VII. Where a deposit is to be forfeited for the " breach of a number 
 Special f stipulations, some of which may be trifling, some of which may 
 forfeiture ^ e *° r *^ e P a y ment 0I " money on a given day," the contract is literally 
 of deposits, enforced. 
 
 A sum paid as a deposit and as part payment of purchase-money is 
 forfeited, whether or not there is a clause providing for forfeiture in 
 case the purchaser makes default : Ex parte Barrell, In re Parnell 
 (L. R. 10 Ch. 512). 
 
PENALTIES AND FORFEITURES. 67 
 
 In Thomas v. Brown (1 Q. B. D. 714) vendor and purchaser uni- 
 formly corresponded " without prejudice to any question which may 
 arise as to the contract of purchase." But the purchaser had paid his 
 deposit, and could not therefore recover it when he repudiated the 
 contract. 
 
 The law on forfeiture of deposits was also considered in Howe v. 
 Smith (27 Ch. D. 89). In that case on a sale of real estate the 
 purchaser paid £500 as a deposit, and in part payment of the 
 purchase-money of £12,500. It was also agreed that the purchaser 
 should pay the balance of the purchase-money on a day named, 
 and that if the purchaser should fail to comply with the agree- 
 ment the vendor should be at liberty to resell and to recover any 
 deficiency in price as liquidated damages. The purchaser did not pay 
 his purchase-money though an extended time was granted to him ; the 
 vendor re-sold the property for £12,500. It was held, that as the 
 purchaser had failed to perform his contract in a reasonable time he 
 had no right to a return of the deposit. Cotton, L. J., said, " In order 
 to enable the vendor to retain the deposit there must be acts on the 
 part of the purchaser which not only amount to delay sufficient to 
 deprive him of the equitable remedy of specific performance, but which 
 would make his conduct amount to a repudiation on his part of the 
 contract." 
 
 In Soper v. Arnold (14 App. Cas. 429) a purchaser paid a deposit, 
 accepted the title, then made default. Three years afterwards the 
 purchaser sued for the recovery of his deposit on the ground that the 
 vendor had no title (which was proved) and could not have completed 
 if the purchaser had not made default. It was held that the purchaser 
 could not go back upon his acceptance of the vendor's title and could not 
 recover his deposit. Compare Rosenberg v. Cook (8 Q. B. D. 162). 
 
 In In re Scott and Alvarez's Contract ([1895] 2 Ch. 603) the circum- 
 stances were similar to those in Soper v. Arnold. A vital defect of 
 title was discovered, to which the purchaser had precluded himself by 
 his conditions from objecting. The Court refused the return of the 
 deposit, but also refused specific performance. See post, pp. 86, 87. 
 
 Note. 
 
 Prom a very early period equity has given relief to a lessee ejected Relief 
 for non-payment of rent, even at an indefinite period after his eject- ^S^t 
 ment, on his paying to the lessor the rent accrued due with interest on non . 
 and costs. The Common Law Procedure Act, 1852 (15 &' 16 Vict, payment 
 c. 76, ss. 211, 212) (superseding 4 Geo. II. c. 28, s. 3, which was of rent, 
 repealed by the Statute Law Revision Act (30 & 31 Vict. c. 59)), 
 regulates the procedure in ejectment for non-payment of rent by 
 providing that " In case the lessee or his assignee, or other person 
 claiming or deriving under the lease, shall permit and suffer judgment 
 to be recovered on such trial in ejectment, and execution to be 
 executed thereon, without paying the rent and arrears, together with 
 
68 
 
 BELIEF OF DEBTOES. 
 
 and on 
 breach of 
 other 
 conditions. 
 
 full costs, and without proceeding for relief in equity within six 
 months after such execution executed, the lessee, his assignee, etc., 
 shall be barred and foreclosed from all relief or remedy in law or 
 equity." The Common Law Frocedure Act, 1860 (23 & 24 Vict. 
 c. 126), s. 1, extended the power of giving relief to the Courts of 
 Common Law. 
 
 The effect of these enactments has been expressly preserved by the 
 Conveyancing Act (44 & 45 Vict. c. 44), s. 14, sub-sect. 8. 
 
 The 14th section of the Conveyancing Act, 1881, confers upon the 
 Court important powers of relieving against the forfeiture of leases. 
 By sub-sect. 9 it is retrospective and cannot be excluded by any 
 stipulation to the contrary. Sub-sect. 1 provides, that a right of re- 
 entry or forfeiture for breach of covenant or condition in a lease shall 
 not be enforceable until the lessor serves on the lessee a notice 
 specifiying the breach, and if the breach is capable of remedy, requir- 
 ing the lessee to remedy it, and in any case requiring the lessee to 
 make compensation, and the lessee fails within reasonable time to 
 comply. See North London Land Company v. Jacques (32 W. E. 
 283) ; Lock v. Pearce ([1893] 2 Ch. 271). 
 
 Sub-sect. 2 provides that where a lessor is proceeding to enforce 
 such right of entry or forfeiture, the lessee may in the lessor's action, 
 if any, or in any action brought by himself, apply to the Court 
 for relief, which the Court may grant or refuse as it thinks fit : 
 Sogers v. Bice ([1892] 2 Ch. 170; Howard v. Fanshawe ([1895] 
 2 Ch. 581). 
 
 It must, however, be borne in mind that by sub-sect. 6 the section 
 is not to extend : — 
 
 (1.) To a covenant or condition against assigning or under-letting, 
 or to a condition for forfeiture on the bankruptcy of the lessee, or 
 on the taking in execution of the lessee's interest ; or, 
 
 (2.) In case of a mining lease to a coveuant or condition for allowing 
 the lessor to have access to or inspect books, accounts, records, weigh- 
 ing machines, or other things, or to enter or inspect the mine or the 
 workings thereof. 
 
 By sect. 2 (2) of the Conveyancing and Law of Property Act, 1892, 
 a bankrupt lessee or a lessee whose interest has been taken in execution 
 will be relieved against a condition for forfeiture on bankruptcy and 
 during one year from the date of the bankruptcy or taking in execution 
 unless in the mean time the lessee's interest has been sold, but this 
 sub-section is not to apply to certain enumerated classes of property, 
 the principal of which are agricultural or pastoral land, mines or 
 minerals, furnished houses and public-houses. See Smith v. Cronow 
 ([1891] 2 Q. B. 394) as to lessee's assign. 
 
 By sect. 5 of the same Act, " lease " in the 14th section of the Act 
 of 1881, includes an agreement for a lease where the lessee has become 
 entitled to have his lease granted ; and the same section extends 
 similar protection to the under-lessee, and sect. 5 gives the Court 
 power to protect under-lessees on forfeiture of superior leases. 
 
RELIEF TO "EXPECTANT EEIRS." 69 
 
 Sub-sect. 8 of sect. 14 of the Act of 1881, provides that the section 
 shall not affect the law relating to re-entry or forfeiture or relief 
 in case of non-payment of rent. 
 
 See Wood fall's Landlord and Tenant, 15th ed. pp. 346 et seq. 
 
 Belief to " Expectant Heirs." 
 
 EARL OF AYLESFORD v. MORRIS. 
 
 (L. E. 8. Ch. 484.) 
 
 The Court will relieve " expectant heirs " against Principle. 
 bargains relating to their reversionary or expectant 
 interests in cases of under value, of weakness due to age 
 or poverty, and of the absence of independent advice. 
 But all these circumstances must co- exist in order to 
 entitle them to relief. 
 
 The Earl of Aylesford, who was entitled to large Summary- 
 estates as tenant in tail expectant on the death of his 
 father, who was in ill health, had contracted debts during 
 his minority, and shortly after attaining his majority 
 borrowed from Morris, a money-lender, £6800 on his 
 acceptance at three months for £8000, and a policy 
 effected at his own cost. The money was borrowed 
 partly in order to pay off an old debt, and Lord Ayles- 
 ford had no independent advice. When the acceptance 
 became due an arrangement was entered into under which 
 Lord Aylesford received £207 and gave acceptances for 
 £11,000. The Court of Appeal ordered all securities to 
 be given up upon payment of the sums actually advanced, 
 with interest at five per cent, per annum. 
 
 The Sale of Seversions Act (31 Vict. c. 4) provides that "No Effect of 
 purchase made hond fide and without fraud or unfair dealing of any the ^ 'f °f 
 reversionary interest in real or personal estate shall hu'eafter be ™* rsi0ris 
 
70 
 
 RELIEF TO "EXPECTANT HEIRS." 
 
 Ground of 
 
 equitable 
 
 interfer- 
 
 is pre- 
 sumptive 
 fraud. 
 
 "Secrecy is 
 a usual 
 but not 
 necessary 
 ingredient. 
 
 opened or set aside merely on the ground of undervalue ; " and the 
 definition clause includes in the word " purchase," all contracts and 
 conveyances passing any beneficial interest, e.g. mortgages. This Act 
 was passed in order to restrain equity from setting aside sales (includ- 
 ing mortgages), Bromley v. Smith (26 Beav. 644, 661, 662), of re- 
 versionary interests by middle-aged well-advised remaindermen or 
 reversioners on the exclusive ground that they had made a bad 
 bargain. There is no reported case extending this peculiar doctrine to 
 sales or mortgages in equity of an expectancy or spes successionis ; 
 and it may be doubted whether loans or purchases of goods on the 
 security of bonds, and the like, can be set aside on the mere ground of 
 undervalue : Barny v. Beak (2 Ch. Cas. 136) ; Benyon v. Fitch (35 
 Beav. 570) ; Tottenham v. Green (32 L. J. Ch. 201). It is submitted 
 therefore that at the present day a single principle prevails with regard 
 to all dealings by reversioners, heirs apparent, and the like, whether 
 those dealings are sales, mortgages, or loans (including purchases of 
 goods on credit). 
 
 As a rule equity does not interfere with contracts (see Wallis v. 
 Smith) ; but it is otherwise where undue influence or fraud exists. A 
 special kind of undue influence or fraud (although, strictly speaking, it 
 is neither undue influence nor fraud) is assumed to exist in the case of 
 reversioners where the three circumstances referred to in our head note 
 co-exist. 
 
 " There is," said Lord Selborne in the leading case (L. E. 8 Ch. 489), 
 " hardly any older head of equity than that described by Lord Hard- 
 wicke in Earl of Chesterfield v. Janssen (2 Yes. Sen. 125, 157) as 
 relieving against the fraud ' which infects catching bargains with heirs, 
 reversioners, or expectants, in the life of the father,' etc. 'These' (he 
 said) ' have been generally mixed cases,' and he proceeded to note two 
 characteristics always found in them. There is always fraud presumed 
 or inferred from the circumstauces or conditions of the parties contract- 
 ing — weakness on one side, usury on the other, or extortioD, or 
 advantage taken of that weakness. There has been always an appear- 
 ance of fraud from the nature of the bargain.'' 
 
 Lord Selborne then proceeded to show that in these cases conceal- 
 ment, one peculiar feature, was almost universally present; the 
 presence of this feature was indeed considered by Lord Brougham in 
 King v. Hamlet (2 My. & K. 456) to be an indispensable condition of 
 equitable relief, though Lord St. Leonards, whose opinion was approved 
 by Lord Selborne, dissents from that opinion (Sug. V. & P. 11th ed. 
 p. 316). "The victim comes to the snare (for this system of dealing 
 does set snares, not, perhaps, for one prodigal more than another, but for 
 prodigals generally as a class), excluded, and known to be excluded, by 
 the very motives and circumstances which attract him, from the help 
 and advice of his natural guardians and protectors, and from that pro- 
 fessional aid which would be accessible to him, if he did not feel com- 
 pelled to secrecy. He comes in the dark, and in fetters, without either 
 the will or the power to take care of himself, and with nobody else to 
 
RELIEF TO " EXPECTANT HEIRS." 71 
 
 take care of him. Great judges (see Lord Hardwicke's judgment in 
 Chesterfield v. Janssen) have said that there is a principle of public 
 policy in restraining this; that this system of undermining and 
 blasting, as it were, in the bud the fortunes of families is a public 
 as well as a private mischief ; that it is a sort of indirect fraud upon 
 the heads of families from whom these transactions are concealed, 
 and who may be thereby induced to dispose of their means for the 
 profit and advantage of strangers and usurers, when they suppose 
 themselves to be fulfilling the moral obligation of providing for 
 their own descendants. Whatever weight there may be in any 
 such collateral considerations, they could hardly prevail, if they did 
 not connect themselves with an equity more strictly and directly 
 personal to the plaintiff in each, particular case. But the real truth is 
 that the ordinary effect of all the circumstances by which these con- 
 siderations are introduced, is to deliver over the prodigal helpless into 
 the hands of those interested in taking advantage of his weakness ; 
 and we so arrive in every such case at the substance of the conditions 
 which throw the burden of justifying the righteousness of the bargain 
 upon the party who claims the benefit of it." 
 
 In O'Rorke v. Bolingbroke (2 App. Cas. 814), a father negotiated A father's 
 the sale of a portion to which his son was entitled at his death; the in<J epend- 
 son at the date of purchase was just twenty-one, and had no other re b u t s the 
 advice; but the undervalue was gross, owing to the father having presump- 
 omitted to tell the purchaser that at the date of purchase he had all tion - 
 but drunk himself to death. It was held (Lord Hatherley dissenting), 
 that the contract had been carried out between the two parties "at 
 arm's length " (p. 834), and was therefore valid. There was strong 
 evidence that the purchaser believed that the tenant for life, the 
 vendor's father, who died some three months after the transaction 
 was completed, had a good life at the time; but Lord Blackburn 
 expressed an opinion that if the purchaser had known that the father 
 was in bad health, "or was only ignorant because he had neglected 
 to make proper inquiries, or had neglected to take some steps which, 
 according to the rules of equity- he ought to have taken," the decision 
 of the House of Lords would have been different. He then cited with 
 approval Lord Selborne's observations in the leading case on "the 
 onus probandi in those cases, which, in the language of Lord Hard- 
 wicke, arises from the circumstances or conditions of the parties 
 contracting — weakness on one side, usury on the other, or extortion 
 or advantage taken of that weakness, a presumption of fraud. Fraud 
 does not mean here deceit or circumvention; it means an uncon- 
 scientious use of the power arising out of these circumstances and 
 conditions, and when the relative position of the parties is such as 
 prima facie to raise the presumption, the transaction cannot stand 
 unless the person claiming the benefit of it is able to repel the pre- 
 sumption by contrary evidence proving it to have been in point of 
 fact just and reasonable." 
 
 Old age as well as youth enhances or even raises the presumption Old age, or 
 
72 
 
 BELIEF TO "EXPECTANT HEIBS;' 
 
 poverty, or 
 youth 
 assists the 
 presump- 
 tion. 
 
 "Expect- 
 ant heir " 
 has an 
 extended 
 meaning;, 
 
 and may 
 
 include 
 
 younger 
 
 sons of 
 
 rich 
 
 parents. 
 
 tbat the sale is unfair : Zongmate v. ledger (2 Giff. 157) ; Baker v. 
 Monk (4 D. J. & S. 388) ; and a poor illiterate even in possession is 
 protected on the same footing as a prodigal son who has great 
 expectations, Eaygarth v. Wearing (12 Eq. 320), a fortiori if his 
 property is reversionary. Thus in Beynon v. Cook (L. B. 10 Ch. 389) 
 the reversioner was entitled to £600 on his father's death ; this 
 was all his property, and he could not earn a living for himself. He 
 borrowed £85 on the security of a mortgage of his reversion for £100, 
 with interest at 60 per cent, per annum. An order was made to 
 deliver over the securities on payment by the debtor of £85 with 5 
 per cent. 
 
 In In re Fry, Fry v. Lane (40 Ch. D. 312), sales of reversionary 
 interests were set aside. The vendors were poor and ignorant men, 
 the amounts paid were considerably under the real value, and the 
 same solicitor acted for both parties, and gave a great advantage to 
 the purchasers, who had been former clients. In delivering judgment 
 in this case, Kay, J., said: "The result of the decisions is, that 
 where a purchase is made from a poor and ignorant man at a con- 
 siderable undervalue, the vendor having no independent advice, a 
 Court of Equity will set aside the transaction. This will be done 
 even in the case of property in possession and a fortiori if the interest 
 be reversionary.'' Compare Bees v. De Bernardy (12 T. L. E. 412). 
 
 In Beynon v. Cook (L. E. 10 Ch. 391 n.), Jessel, M.E., com- 
 mented on the extensive meaning which the Courts have conferred 
 upon the term " expectant heir " as follows : — " The phrase is used not 
 in its literal meaning, but as including every one who has either a 
 vested remainder, or a contingent remainder in a family property, 
 including a remainder in a portion, as well as a remainder in an estate, 
 and every one who has the hope of succession to the property of an 
 ancestor, either by reason of his being the heir-apparent or presump- 
 tive, or by reason merely of the expectation of a devise or bequest on 
 account of the supposed or presumed affection of his ancestor or relative. 
 More than this, the doctrine as to expectant heirs has been extended 
 to all reversioners and remaindermen. So that the doctrine not only 
 included the class mentioned who in some popular sense might be 
 called 'expectant heirs,' but also all remaindermen and reversioners." 
 
 In Nevill v. Bnelling (15 Ch. D. 679), the defendant, a money- 
 lender, was in the habit of sending to sons of peers circulars in which 
 he offered to lend money to any amount on personal security. Such 
 a circular was sent by him to the plaintiff, who was the third son of 
 the Marquis of Abergavenny, and was then under age. The plaintiff, 
 while still under age, applied to the defendant for a loan of £50. The 
 money was advanced on the security of a promissory note for £65, 
 payable in three months, with interest at 60 per cent, per annum, 
 a rate upheld in Webster v. Cook (L. E. 2 Ch. 542). After the 
 plaintiff came of age further sums were advanced on similar terms, 
 imperfectly understood by him. The plaintiff was not entitled to 
 any property, either in possession or in reversion. It appeared that 
 
RELIEF TO "EXPECTANT HEMS." 73 
 
 the money was advanced by defendant on the credit of vague general 
 expectations, and in the hope of extorting payment from some relation. 
 On the plaintiff failing to repay the sums advanced, the defendant 
 ultimately presented a petition in bankruptcy against plaintiff, and 
 applied to his father, who offered repayment of the sums actually 
 advanced with 5 per cent, interest from the date of advance. The 
 defendant declined'this offer. Plaintiff then commenced this action, 
 claiming (inter alia) an injunction against the defendant's parting 
 with the notes, and a declaration that the notes should stand as 
 security only for the sums actually advanced, with interest at 5 per 
 cent. An order to this effect was made; and it applied to the first 
 loan as well as to the later loans, as plaintiff had not pleaded the 
 Infants' Relief Act (see note below). 
 
 Many of the older cases which are cited in support of extreme views Mixed 
 as to equitable interference with the contracts of reversioners really cases - 
 illustrate other points. In Evans v. Cheshire (Belt's Suppl. to Ves. 
 300), a prisoner borrowed money to set himself free, aDd in Smith v. 
 Kay (7 H. L. 0. 750) the borrower was an infant. In Wharton v. 
 May (5 Ves. 26) there was an abuse of confidence. Compare notes to 
 McPherson v. Watt (p. 74, infra). In re Unsworth (12 L. T. N.S. 49) 
 and King v. Savery (1 Sm. & Giff. 271) were solicitor and client cases, 
 and In re Slater's Trusts (11 Ch. D. 227) was partly a case of this 
 kind and partly of actual fraud ; James v. Kerr (40 Ch. D. 449) was 
 a solicitor and client case, and a, case of "collateral advantage to a 
 mortgagee " (see Salt v. Marquess of Northampton ([1892] A. C. 1)), 
 and also a case of champerty pure and simple. Compare Rees v. De 
 Bernardy (supra). In Waller v. Dalt (1 Dick. 8) there was fraud. 
 All these cases went far beyond the principles of reversioners' cases. 
 
 There is no ratification by acquiescence until the reversion falls in. Generally. 
 See In re Fry, Fry v. Lane (40 Ch. D. 312, 324). 
 
 As for the question what is a reversionary interest for the purpose 
 of these cases, Stuart's (V.-C.) observations in Tyler v. Yates (11 Eq. 
 265, 276), on Webster v. Cook (L. E. 2 Ch. 542), may be consulted. 
 
 As to what is independent advice, see Miller v. Cook (10 Eq. 641), 
 where the borrower was accompanied by a friend who was a solicitor ; 
 the latter stated that he did not act as solicitor, and did not know the 
 terms of the contract : the Court held that there was no independent 
 advice. 
 
 For order where there are securities, see Tyler v. Yates (11 Eq. 265, Practice. 
 278 ; affirmed L. R. 6 Ch. 665) ; and see Seton, 5th ed. pp. 1947-9. 
 
 In cases of this description, where relief is sought against a bargain Costs. 
 alleged to be unconscionable, the usual course is not to give the 
 plaintiff his costs, the Court proceeding on the principle that he ought 
 to pay for the relief which is granted to him against the consequences 
 of his own folly. If, however, the defendant has refused reasonable 
 terms offered before the commencement of the action, as in Nevill v. 
 Snelling, Beynon v. Cook, etc., or has been guilty of fraud or mis- 
 conduct, the plaintiff may be allowed costs. 
 
74 RELIEF TO CLIENT AGAINST SOLICITOR. 
 
 Infants' 
 Belief Act, 
 1874, s. 1. 
 
 Sect. 2. 
 
 In In re Fry, Fry v. Lane (40 Ch. D. 322), Kay, J., commented on 
 the subject as follows : — " I am glad that no absolute rule has been laid 
 down by the Court in these cases. Sometimes where the only ground 
 was undervalue, the plaintiff has been relieved on payment of costs, as 
 in Twisleton v. Griffith (1 P. Wms. 310). In some cases no costs are 
 given, as in Bromley v. Smith (26 Beav. 644, 676) ; sometimes the 
 costs are thrown upon the defendant, as in Nevill v. Snelling (15 Ch. 
 D. 679, 705)." 
 
 Note. 
 
 The Infants' Relief Act, 1874 (37 & 38 Vict. c. 62) is as follows :— 
 
 Sect. 1 provides that "all contracts, whether by specialty or by 
 simple contract, henceforth entered into by infants for the repayment 
 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." This is followed by a proviso that 
 this enactment shall not invalidate any contract into which an infant 
 may by any existing or future statute or by the rules of common law 
 or equity enter except such as now by law are voidable. 
 
 Sect. 2 provides that no action shall be brought whereby to charge 
 any person upon any promise made after full age to pay any debt con- 
 tracted during infancy, or upon any ratification made after full age of 
 any promise or contract made during infancy, whether there shall or 
 shall not be any new consideration for such promise or ratification 
 after full age. 
 
 Reference is made to this Act in the notes to In re Vardon's Trusts 
 (p. 256) ; and see Pollock on Contract, 6th ed. pp. 59-63. 
 
 Relief to Client against Solicitor 
 
 Mcpherson v. watt. 
 
 (3 App. Cas. 254.) 
 
 Principle. £ n English solicitor {like a "Scotch writer" and 
 
 " advocate of Aberdeen ") stands in a confidential re- 
 lation to his client, and any purchase from his client 
 in which the fact that he is -purchasing for himself is 
 concealed, will be set aside. 
 
 Summary 
 of facts. 
 
 Two ladies, who were trustees and acted in the trust 
 principally through their brother, Hugh. McPherson, 
 
RELIEF TO CLIENT AGAINST SOLICITOR. 75 
 
 were desirous of selling four houses. John Watt, "an 
 Aberdeen advocate," who was employed as law agent 
 by each of the vendors in collateral matters, advised 
 McPherson to sell by private treaty, and was commis- 
 sioned to obtain a purchaser. He had named £1900 
 as a fair price, and said that his brother, Dr. Watt, 
 would probably buy at that price. The property was 
 then sold to Dr. Watt for £1900. The trustees believed 
 that Dr. Watt was the sole purchaser, but there had 
 been a previous arrangement between the brothers that 
 John Watt should have two of the houses at half the 
 price. The House of Lords set the entire sale aside. 
 
 The House of Lords regarded the question whether Watt was a Principle 
 gratuitous or paid adviser as immaterial. The important fact "was of the 
 that he was the only adviser in hac re, i.e. in the particular trans- eadm S 
 action in question. There was this fiduciary relationship between 
 him and the vendors, and therefore full disclosure ought to have 
 been made. 
 
 Lord Cairns, in delivering judgment, cited with approval the 
 "pointed observations" made by Lord St. Leonards in the somewhat 
 similar case of Lewis v. Hillman (3 H. L. C. 607, 630). " Take," 
 said Lord St. Leonards, "the case of a sale of any kind which is 
 so fair, so reasonable as to price, so entirely free from anything else 
 that is obnoxious, as to be capable of being supported; yet if there 
 has entered into that sale this ingredient, that the client has not 
 been made aware that the real purchaser is his law agent, if the 
 purchase has been made in the name of some other person for that 
 law agent, that is a sale that cannot be supported." 
 
 " The law, both in England and in Scotland," said Lord Blackburn, 
 "is that in such cases we do not inquire whether it was a good 
 bargain or a bad bargain before we set it aside. The mere fact that 
 you, being in circumstances which made it your duty to give your 
 client advice, have put yourself in such a position that being the 
 purchaser yourself you cannot give disinterested advice, your own 
 interests coming in conflict with his, that mere fact authorizes him 
 to set aside the contract if he chooses to do so." And he continued, 
 "If he purchases from his client in a matter totally unconnected 
 with what he was employed in before, no doubt an attorney may 
 purchase from one who has been his client just as any stranger may 
 do, honestly telling the truth and without any fraudulent concealment, 
 but being in no respect bound to do more than any other purchaser 
 would do. But when he is purchasing from a person property with 
 
76 BELIEF TO CLIENT AGAINST SOLICITOR. 
 
 Solicitor 
 purchasing 
 from 
 client. 
 
 Solicitor 
 
 taking 
 
 mortgage 
 
 from 
 
 client. 
 
 Gifts from 
 a client. 
 
 respect to which the confidential relation has existed or exists, it 
 becomes wrong of him to purchase without doing a great deal more 
 than would be expected from a stranger." Compare Luddy's Trustee 
 v. Peard (33 Ch. D. 500) (client's trustee in bankruptcy). 
 
 It is a contract uberrimce fidei, so that full disclosure is necessary ; 
 but this is the case wherever the parties are in the position of adviser 
 and advised : Tate v. Williamson (L. E. 2 Ch. 56). And it is some- 
 thing more, for the adviser has exceptional means of knowledge, and 
 therefore influence over his client. Hence in order that a transaction 
 of this nature may stand, some other similar influence should be 
 substituted for his own. It is only then that he is really "at arm's 
 length " with his client. His client should be advised by an inde- 
 pendent solicitor, who really acts as such: Barnard v. Hunter 
 (5 W. B. 92). There are, however, dicta that the help of a fresh 
 solicitor is not essential, e.g. in Cane v. Allen (2 Dow. 289) ; and in 
 Spencer v. Topham (22 Beav. 573), Edwards v. Meyrick (12 L. J. 
 Ch. 49), sales by a client to a person who was habitually his solicitor 
 were upheld, although no fresh solicitor was employed. 
 
 In Cockburn v. Edwards (18 Ch. D. 449) it was held that a 
 solicitor taking security from a client for money lent must take 
 it in the ordinary form, unless he points out to his client anything 
 unusual, and he should preserve evidence of this; but this doctrine 
 was held not to apply to an arrangement for giving the client time 
 for paying a debt presently payable, and where the solicitor had 
 inserted an immediate power of sale : Pooley's Trustee v. Whetham 
 (33 Ch. D. Ill, 122). 
 
 In Ehodes v. Bate (L. R. 1 Ch. 252), where the confidential agent 
 was a conveyancer, Turner, L. J., applied " the well-established 
 principle of this Court," that " persons standing in a confidential 
 relation towards others cannot entitle themselves to hold benefits 
 which those others may have conferred upon them, unless they 
 can show to the satisfaction of the Court that the persons by whom 
 the benefits have been conferred had competent and independent 
 advice in conferring them." 
 
 In Morgan v. Minet (6 Ch . D. 645) the capacity and intentions 
 of the donor to make a gift were proved; but "the law," said 
 Bacon, V.C., " is as plainly settled on the subject as any law existing 
 in this country, that while the relationship of solicitor and client 
 subsists the solicitor cannot take a gift from his client. It is not 
 said that the relation prevents a client bestowing his bounty upon 
 his solicitor, but what the law requires is that, considering the 
 enormous influence which a solicitor in many cases must have over 
 his client, in order to give validity and effect to a donation from a 
 client to his solicitor that relation must be severed. If that can once 
 be established, there is an end to the influence ; whatever the influence 
 may have been before need not be inquired into ; and then the client 
 may as well give to a solicitor as give to any other person. The 
 degree of influence need not be inquired into. The fact of the influence 
 
BELIEF TO CLIENT AGAINST SOLICITOR. 77 
 
 is enough if it be established. These Courts have not those golden 
 scales which are said to be used in the mythological heaven to regulate 
 the destinies of mankind." 
 
 Rhodes v. Bate was followed in Liles v. Terry and wife ([1895] 
 2 Q. B. 679), where a settlement by a client on herself for life with 
 remainder to her niece, who was her solicitor's wife, was upset on 
 the sole ground that the settlor had not had independent legal advice. 
 Compare Ooddard v. Carlisle (9 Price, 169). 
 
 These recent cases as to gifts by clients establish a stricter rule 
 than the older cases, e.g. Harris v. Tremenheere (15 Ves. 34). And 
 contrast Oldham v. Hand (2 Ves. 259) with Brown v. Kennedy 
 (33 Beav. 133, 148) ; but in the last-mentioned case (which was 
 one of counsel and client) there was also an element of black- 
 mailing. 
 
 A solicitor may, however, take a gift by will from a client, although Gifts by 
 he has prepared the will; but he must be able to prove that he will- 
 explained the gift to his client : Walker v. Smith (29 Beav. 394) ; 
 Hindson v. Weatherill (5 D. M. & Gr. 301). As a rule the doctrine 
 of presumptive undue influence does not apply to gifts by will : Parfltt 
 v. Lawless (L. R. 2 P. & D. 462) ; so that gifts by will to solicitors are 
 exceptions to the rule. See Fulton v. Andrews (L. B. 7 H. L. 448, 
 471). According to In re Barber, Burgess v. Vinicome (34 Ch. D. 77), 
 a power to a solicitor-trustee to charge profit costs is a gift. See 
 post, p. 173. 
 
 Sales to a trustee for sale who has accepted the trusteeship, Stacey Trustee 
 v. Elph (1 M. & K. 195), are under a similar law: Franks v. Bollans and cestai 
 (L. E. 3 Ch. 717) ; Fox v. Mackreth (W. & T. 6th ed. i. 141). A que trusL 
 trustee for sale may buy " provided there is a distinct and clear ulc ases * 
 contract ascertained to be such after a jealous and scrupulous exami- 
 nation of all the circumstances that the cestui que trust intended the 
 trustee should buy ; and there is no fraud, no concealment, no 
 advantage taken by the trustee of information acquired by him in the 
 character of trustee : " per Lord Eldon, Coles v. Trecothick (9 Ves. 234, 
 247). In this case and in Clarke v. Sivaile (2 Ed. 134), and in Morse 
 v. Royal (12 Ves. 355), the principal if not the only cestuis que 
 trustent were of age, and conducted the sale; so that their "distinct 
 and clear contract with their trustee" was equivalent to his being 
 removed from his trusteeship to sell. The Court may also allow him 
 to bid : Campbell v. Walker (5 Ves. 678) ; Tennant v. Trenchard 
 (L. B. 4 Ch. 547); and then the sale will stand; in ODe case it 
 confirmed a sale already made by a trustee to himself and others : 
 Hickley v. Hickley (2 Ch. D. 190) ; and compare Delves v. Delves (20 
 Eq. 77), where the purchaser's agent was the vendor's trustee, and as 
 such conducted the sale. These cases rest on the same principles as 
 those governing purchases by solicitors in hac re. The dicta that a 
 trustee for sale cannot in any case buy, e.g. in Cane v. Allen (ubi 
 supra, p. 300) ; Denton v. Donner (23 Beav. 285, 290) ; Luff v. Lord 
 (34 Beav. 220, 227) are subject to the above-mentioned exceptions. 
 
78 BELIEF TO CLIENT AGAINST SOLICITOR. 
 
 Gifts. 
 
 Parent 
 and child. 
 
 Analogous 
 cases. 
 
 Directors, 
 etc., of 
 companies. 
 
 A trustee who is not trustee for sale is in a similar position to a 
 solicitor where a new solicitor in haa re has been appointed. See 
 Denton v. Bonner, Luff v. Lord ; and for the parallel of solicitor and 
 trustee see Downes v. Grazebrooh (3 Mer. 209). 
 
 Although Lord Eldon said, " It is almost impossible in the course of 
 connection of guardian and ward, attorney and client, trustee and 
 cestui que trust, that a transaction shall stand purporting to be bounty 
 for the execution of an antecedent duty," Hatch v. Hatch (9 Ves. 
 292), cases of bounty (or " bonus ") by cestuis que trustent to trustees 
 are rare, and nearly all turn on the use of actual undue influence, Ellis 
 v. Barker (L. B. 7 Ch. 104), or imposition : Barrett v. Hartley (2 Eq. 
 789). On the other hand, where the trustee was a solicitor, his charges 
 were only allowed in Sianes v. Parker (9 Beav. 385) and In re 
 Wyche (11 Beav. 209), because the cestui que trust had his eyes opened 
 by another solicitor and then consented. 
 
 In Baker v. Bradley (7 De G. M. & G. 597, 620), Turner, L.J., 
 declared that the Court views resettlements for value with favour, and 
 only voluntary resettlements with jealousy. Compare Hoblyn v. 
 Iloblyn (41 Ch. D. 200). 
 
 In Savery v. King (5 H. L. C. 627) and Turner v. Collins (L. R. 7 
 Ch. 329) a son on coming of age voluntarily gave property to his 
 father's nominee; the same solicitor was employed, and there was no 
 evidence of independent consent by the son. This by itself consti- 
 tuted undue influence. Here the gifts were reversionary ; but not so 
 in Wright v. Vanderplank (8 D. M. & Gr. 133) ; Everitt v. Everitt 
 (10 Eq. 403). 
 
 The person whose influence is assumed to be undue may also be an 
 ex-guardian, as in Everitt v. Everitt ; Hylton v. Hylton (2 Ves. 547), 
 or elder sister, Harvey v. Mount (8 Beav. 439), or servant, Osmond 
 v. Fitzroy (3 P. W. 129) acting as guardian. Compare Griffiths v. 
 Robins (3 M. & K. 192); contrast Taylor v. Johnston (19 Ch. D. 
 603). In Huguenin v. Baseley (14 Ves. 273), the donee was ad- 
 ministering the donor's property like a guardian or trustee. 
 
 A gift by a sister to a sisterhood, Allcard v. Skinner (36 Ch. D. 145), 
 by an ex-lunatic to his ex-keeper with whom he boarded, Wright v. 
 Proud (13 Ves. 136), by a patient to his doctor, Dent v. Bennett (4 
 My. & Cr. 269) ; Mitchell v. Horn/ray (8 Q. B. D. 587) have been treated 
 as voidable on similar grounds ; but there was the trail of fraud tainting 
 that gift by a dupe to a spiritualist in Lyon v. Home (6 Eq. 655), by 
 an invalid to a religious quack in Morley v. Loughnan ([1893] 1 
 Ch. 736). 
 
 Directors' cases lie on the borderland between the common law of 
 agency and the equitable doctrine of trusts. Compare De Bussche v. 
 Alt (8 Ch. D. 286). 
 
 In Bentinck v. Fenn (12 App. Cas. 652) a sale by a director and 
 others to his company, for whom be acted in the purchase, was upheld 
 "on two grounds, namely, that the evidence adduced by the applicant 
 failed to show that the director had not disclosed his interest and 
 
RELIEF TO CLIENT AGAINST SOLICITOR. 79 
 
 also that the evidence failed to show that the purchase price was 
 above the value," as cited in In. re North Australian Territory Co., 
 Archer's Case ([1892] 1 Ch. 322, 338). The latter case was a case of 
 secret profits for which the directors had to account : compare In re 
 Canadian Oil Works Corporation, Say's Case (L. E. 10 Ch. 593) ; 
 In re Carriage Co-operative Supply Association (27 Ch. D. 322), etc. 
 These cases were decided on the Companies Act, 1862, s. 165, and 
 the Companies Winding-up Act, 1890, s. 10; but these sections 
 only prescribe a new remedy for an old wrong. In these cases 
 the onus lies on the applicant to prove loss, and the knowledge of the 
 shareholders supports a transaction : In re British Seamless Paper Box 
 Co. (17 Ch. D. 467) ; and an open gift for duty doDe is valid : Southall 
 v. British Mutual Life Assurance Society (L. R. 6 Ch. 614) ; and there 
 is nothing about independent advice. 
 
 " In order to sustain such a gift you must have something after the Ratifica- 
 confidential relation has ceased amounting to a release of the client's tioa. 
 right to set aside the gift," and a declaration of intention or payment 
 of a bill, Tyars v. Alsop (36 \V. E. 919), is insufficient. Compare 
 Moxon v. Payne (L. E. 8 Ch. 881). In Allcard v. Skinner (ubi 
 supra) six years' acquiescence (dissentinete Cotton, L.J.), in Mitchell 
 v. Homfray (ubi supra) four years, in Salmon v. Cutts (4 De Gr. & S. 
 125) three years, in Lyddon v. Moss (4 De. G. & J. 101) fourteen years, 
 in Champion v. Rigby (1 E. & M. 539) eighteen years' acquiescence 
 was held in the circumstances of each case enough ; in Savery v. King 
 (ubi supra) twelve years, in Hatch v. Hatch (ubi supra) twenty years' 
 acquiescence was held not to imply ratification. Knowledge of the 
 wrong done and of the remedy for it is necessary, besides exemption 
 from the influence in question. See, too, Erlanger v. New Sombrero 
 Phosphate Co. (3 App. Cas. 1218, 1230). 
 
 In all the above cases there is one principle, but many rules. For Generally, 
 there are infinite gradations of dominion exercised by the dominant 
 over the servient mind : Hunter v. Atkins (3 My. & K. 113, 139) ; 
 and the kind of advantage which a solicitor has over his client is sui 
 generis. And there are degrees in gifts ; thus it would be pedantry 
 not public policy to object to trifling gifts : Rhodes v. Bate (ubi supra). 
 In these cases, as in those discussed in the last chapter, circumstances 
 trivial in themselves — like deafness (Hatch v. Hatch) or blindness 
 (Griffiths v. Robins) wlW reinforce the presumption of undue influence. 
 
80 VICTIMS OF MISTAKE — MISTAKE OF LAW. 
 
 Victims of Mistake — Mistake of Law. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 Mistake 
 in con- 
 struction of 
 deeds, etc. 
 
 ROGERS v. INGHAM. 
 
 (3 Ch. D. 351.) 
 
 The Court will only relieve against a payment of 
 money under mistake of law if there be some equitable 
 ground which renders it inequitable that the party who 
 received the money should retain it. 
 
 An executor took the opinion of counsel with regard to 
 the construction of a will, and was advised that a legatee 
 was not entitled to certain interest which had been paid 
 to her. The legatee also took the opinion of her counsel, 
 which was to the same effect. The executor then divided 
 the estate, and the legatee accepted her share in accord- 
 ance with these opinioos. Two years afterwards the 
 legatee commenced an action submitting another con- 
 struction of the will and claiming repayment on that 
 basis, but it was held that such an action could not be 
 maintained. 
 
 The judgments of ttie late Lord Justices James and Mellish in this 
 case contain probably the best statement which is to be found in any 
 of the books of the principles upon which the Courts proceed in relieving 
 or declining to relieve on the ground of mistake of law. The Court of 
 Appeal upheld the decision of Hall, V.C., to the effect that it was 
 too late in the day to consider the question whether a proper con- 
 struction had been put upon the will, and that the plaintiff could not 
 be relieved on the ground that there was a common mistake of law. 
 
 In deciding the leading case the Court of Appeal assumed that a 
 mistake in the construction of an instrument was a mistake of law 
 so far as the question of relief is concerned. This assumption was 
 the basis of the decisions in Powell v. Smith (14 Eq. 85), Billiard v. 
 Fulford (4 Ch. D. 389), and Eaglesfield v. Marquis of Londonderry 
 (4 Ch. D. 693). Compare, too, In re Railway, etc., Publishing Co., 
 Ex parte Sandys (42 Ch. D. 98), In re Champion ([1893] 1 Ch. 101, 
 111), In re Hulkes (infra). 
 
VICTIMS OF MISTAKE— MISTAKE OF LAW. 81 
 
 There are, however, dicta to the contrary. Thus Lord Chelmsford 
 said in Earl Beauchamp v. Winn (L. R. 6 H. L. 223, 234) : " With 
 regard to the objection that the mistake (if any) was one of law, and 
 that the rule, Ignorantia juris nerninem excusat, applies, I would 
 observe upon the peculiarity of this case" (as to which, see p. 85) 
 " that the ignorance imputable to the party was of a matter of law 
 arising upon the doubtful construction of a grant. This is very 
 different from the ignorance of a well-known rule of law. And there 
 are many cases to be found in which equity upon a mere mistake of 
 the law, without the admixture of other circumstances, has given relief 
 to a party who has dealt with this property under the influence of such 
 mistake." It is submitted that Lord Chelmsford was more accurate 
 when, in the Midland Railway, etc., Go. v. Johnson (6 H. L. C. 798, 
 811), he said the opposite : — " The construction of a contract is clearly 
 matter of law, and if a party acts on a mistaken view of his rights 
 under a contract, he is no more entitled to relief in equity than he 
 would be at law." 
 
 There is, however, one exception to this rule in Company Law. If 
 a company amalgamates with or transfers its assets and liabilities to 
 another company, and such amalgamation or transfer is "ultra vires,'' 
 a creditor who has renounced may resume his rights against the first 
 company. He is to this extent relieved against his mistake in law : 
 In re Saxon Life Assurance Society (2 J. & H. 408). But Page-Wood, 
 V.C., rested his decision in this case on Stone v. Godfrey (5 D. M. & G. 
 76), which he cited for the proposition that equity will relieve against 
 mistakes of law. Stone v. Godfrey was, however, a case of mixed law 
 and fact (like Cooper v. Phibbs, infra), in which plaintiff was told that 
 the law depended on the facts, and made an error only in the facts. 
 Nor was it a case of construing any document. It is safer, therefore, 
 to regard ultra vires cases as standing by themselves. 
 
 It was decided also in the leading case that acquiescence by the 
 cestui que trust in what the trustee did, operated as an equitable 
 estoppel, as it is sometimes called ; so that the act of the trustee was 
 to all intents and purposes her act, and a payment by him was a pay- 
 ment by her. Thus, too, in In re Hulkes, Powell v. Hulkes (33 Ch. D. 
 552), the executors paid away certain funds, the income of which they 
 ought to have paid to H., but paid H. a part of these funds and 
 rendered him accounts and sent him a copy of the will. All these 
 payments were due to a mistake in construing the will ; and it was 
 held that H. had made himself a party to this mistake, and could not, 
 therefore, claim arrears of income after lying by for two years. Clritty, 
 J., said that the executors were entitled to say, " Common error there 
 was, we acted on it and you never complained, and therefore we are still 
 entitled as between us to the benefit of your long acquiescence " (p. 561). 
 
 And it was decided in the leading case that payments under a 
 mistake of this kind, even if they cannot be construed as payments to 
 compromise a doubtful claim (and Mellish's (L.J.) judgment hinted 
 that this was a compromise), and therefore for value, are adequately 
 
 Ultra vires. 
 
 Acquies- 
 cence. 
 
 " Action 
 for money 
 had and re- 
 ceived" the 
 only equity, 
 
82 VICTIMS OF MISTAKE — MISTAKE OF LAW. 
 
 provided for by the quasi-equitable action for money had and received 
 (see p. 355) ; and that equity would not interfere, unless there were 
 persons in a fiduciary relation, or, he might have added, officers of 
 the Court were concerned. 
 
 " No authority whatever," said Lord Justice James, " has been cited 
 to us in support of the proposition that an action fur money had and 
 received would lie against a person who has received money from 
 another, with perfect knowledge of all the facts common to both, 
 merely because it was said that the claim to the money was not well 
 founded in point of law. Of course cases of that kind must have con- 
 tinually occurred, and yet no case has been produced in which a suit 
 of this kind has succeeded." If it were true that equity would grant 
 relief in a case like the present, " it must be true in respect of any 
 case in the High Court of Justice where money has been paid under a 
 mistake as to legal rights, and it would open a fearful amount of 
 litigation and evil in cases of distribution of estates, and it would 
 be difficult to say what limit could be placed to this kind of claim, if 
 it could be made after an executor or trustee had distributed the 
 whole estate among the persons supposed to be entitled, every one 
 of them having knowledge of all the facts, and having given a release. 
 The thing has never been done, and it is not a thing which in my 
 opinion is to be encouraged. Where people have a knowledge of all 
 the facts and take advice, and whether they get proper advice or not, 
 the money is divided and the business is settled, it is not for the good 
 of mankind that it should be reopened by one of the parties saying, 
 ' You have received your money by mistake. I acquiesced in your 
 receipt of it under that mistake, and therefore I ask you to give it 
 to me back.' " 
 Exceptions. The first exception to this rule is where persons are in a fiduciary 
 relation, as in Bingham v. Bingham (1 Ves. Sen. 126, Supplement, 
 p. 81), where plaintiff's mistake in law was due to defendant's advice ; 
 and defendant was a scrivener and conveyancer. Secondly, where there 
 are circumstances pointing to fraud or undue influence on one side : 
 Broughton v. Butt (3 D. & J. 501) ; Pickering v. Pickering (2 Beav. 31). 
 Thirdly, where by mistake of law money has been paid to an officer of the 
 Court. In Ex parte James, In re Condon (L. E. 9 Ch. 609) a trustee 
 in bankruptcy was ordered to repay money. Lord Justice James 
 in delivering judgment said : " I am of opinion that a trustee in bank- 
 ruptcy is an officer of the Court. He has inquisitorial powers given 
 him by the Court, and the Court regards him as its officer, and he 
 is to hold money in his hands upon trust for its equitable distribution 
 among the creditors. The Court, then, finding that he has in his 
 hands money which in equity belongs to some one else, ought to set 
 an example to the world by paying it to the person really entitled 
 to it. In my opinion the Court of Bankruptcy ought to be as honest 
 as other people." 
 
 The principle of Ex. parte James (uhi supra), which was cha- 
 racterized by Lord Esher in Ex parte Simmonds (16 Q. B. D. 308) 
 
 Trustee in 
 bank- 
 ruptcy. 
 
VICTIMS OF MISTAKE— MISTAKE OF LAW. 83 
 
 " as a good, a righteous, and a wholesome principle," was extended in 
 the latter case, and the rule was laid down that a trustee in bank- 
 ruptcy who has received money paid him by mistake will be ordered to 
 refund it not only out of money in his hands, but will also be ordered 
 to repay it out of other moneys afterwards coming to his hands applic- 
 able to the payment of dividends to the creditors. 
 
 " The Court," said Lord Esher, " will direct its officer to do that 
 which any high-minded man will do, not to take advantage of the 
 mistake of the law. This rule is not confined to the Court of Bank- 
 ruptcy. If money had by a mistake of law come into the hands of 
 an officer of the Court of Common Law the Court would order him to 
 repay it so soon as the mistake was discovered. Of course, as between 
 litigant parties, even a Court of Equity would not prevent a litigant 
 from doing a shabby thing. But I cannot help thinking that if money 
 had come into the hands of a receiver appointed by a Court of Equity 
 through a mistake of law, the Court would, when the mistake was 
 discovered, order him to repay it." 
 
 In In re Brown, Dixon v. Brown (32 Ch. D. 597), where trust 
 money in the hands of a trustee had been paid to his trustee in 
 liquidation by a mistake of law, the Chancery Division ordered him to 
 refund it. On this point the Judge expressed himself as follows : — " I 
 have no doubt or hesitation in saying that a Court of the Chancery 
 Division does not consider itself bound to act on principles less honest 
 than the Court of Bankruptcy ; and if this money was really paid to 
 the trustee in the liquidation in mistake of law, I have no hesitation 
 in saying that he must repay it, and if any order of the Court of 
 Bankruptcy were necessary for that purpose, I presume the Court 
 would make such order." 
 
 Similarly in In re Opera, Limited ([1891], 2 Ch. 154 ; [1891] 3 Ch. 
 260), the principle to be deduced from previous authorities was stated 
 as follows, by Kekewich, J. : " If the assets in the hands of an officer 
 of the Court on behalf of creditors or others have been increased by a 
 transaction occasioned by an honest mistake of law, then, notwith- 
 standing such mistake is not capable of rectification as between 
 ordinary adverse litigants, the Court will compel its officer to recognize 
 the rules of honesty as between man and man and to act accordingly." 
 The Court of Appeal, while admitting the accuracy of the principle 
 stated, was unable to apply it to the circumstances of that case. 
 
 A company is not bound if its directors make payments which are Generally. 
 ultra vires : the mistake of law is not a mistake of law by the com- 
 pany, so that the company can recover such payments : Blackburn, etc., 
 Benefit Building Society v. Cunliffe Brooks & Co. (29 Ch. D. 902, 910). 
 
 A mistake as to foreign law is a mistake of fact : Leslie v. Baillie 
 (2 Y & C. 91). 
 
 A mistake as to one's rights {jus) is generally a mistake of fact and 
 law. The Court apparently assumes that it is a mistake of fact, 
 unless it is proved to be a mistake of law. See next case. 
 
84 VICTIMS OF MISTAKE— MISTAKE OF FACT. 
 
 Victims of Mistake — Mistake of Fact. 
 
 COOPER v. PHIBBS. 
 
 (L. B. 2 H. L. 149.) 
 
 Principle. Wliere a contract is entered into bona fide under a 
 
 mutual mistake of fact, either party is entitled to be 
 relieved from it. 
 
 Summary An owner in fee simple of Irish estates, including a 
 salmon fishery, having become a lunatic, an application 
 was made to Parliament for an Act to improve the 
 fishery, and the Act was passed shortly after the lunatic's 
 decease. The Act, after reciting that the fishery in 
 question had descended to and was vested in E. J. 
 Cooper, as heir-at-law of the lunatic, and that the said 
 E. J. Cooper was desirous of constructing certain works 
 to improve the fishery, " on the terms that the exclusive 
 right of fishery should in consideration thereof be 
 vested in and confirmed to him, his heirs and assigns," 
 proceeded to confer upon him the requisite powers. 
 Under these powers E. J. Cooper spent large sums upon 
 the improvement of the fishery, and always considered 
 and stated that by the Act he was made owner in fee 
 of the fishery. As a matter of fact E. J. Cooper was 
 only entitled to the fishery as trustee for the persons 
 beneficially entitled under a prior settlement, i.e. for 
 himself for life with remainder in the events that 
 happened to his nephew, Edward Cooper. On E. J. 
 Cooper's death all parties assumed, from statements 
 made by E. J. Cooper, that he was owner in fee of the 
 fishery, and that therefore, while the lands passed to 
 Edward Cooper under the settlement, the fishery passed 
 
VICTIMS OF MISTAKE — MISTAKE OF FACT. 85 
 
 direct from E. J. Cooper to his daughters. Phibbs, the 
 daughters' trustee, then agreed to lease the fishery for 
 a term of years to Edward Cooper. Shortly afterwards 
 Edward Cooper read the Act of Parliament, and believing 
 that, under the provisions thereof and of the settlement, 
 the fishery really belonged to himself, applied to the 
 Court to have the agreement set aside. The House of 
 Lords decided that the agreement, having been made in 
 mutual mistake, must be set aside, and special directions 
 were given in the judgment for ascertaining the amount 
 expended by E. J. Cooper, the House holding that his 
 estate was entitled to a lien upon the fishery for that 
 amount. 
 
 In deciding this case Lord Westbury drew a hard and fast distinction Cases 
 between "jus " in the sense of law and "jus " in the sense of " private where mis- 
 right." " In such a state of things,'' said Lord Westhury, " there can private 
 be no doubt of the rule of a Court of Equity with regard to the right is not 
 dealing with that agreement. It is said, ' Ignorantia juris haud ""stake of 
 excusat; ' but in that maxim the word 'jus' is used in the sense of aw " 
 denoting general law, the ordinary law of the country. But when the 
 word jus is used in the sense of denoting a private right, that maxim 
 has no application. Private right of ownership is a matter of fact ; it 
 may be the result also of matter of law ; but if parties contract under 
 a mutual mistake and misapprehension as to their relative and 
 respective rights, the result is, that that agreement is liable to be 
 set aside as having proceeded upon a common mistake." These cases 
 ■" lie on the very border of the two kinds of error, and are rather to be 
 classed among instances of error in fact than in law : " per Lord 
 Brougham, L.C., in Clifton v. Cockburn (3 My. & K. 76, 99). 
 
 Sir G. Jessel illustrated the distinction thus : " Suppose a man 
 is asked by a tradesman whether he can give credit to a lady, and the 
 answer is, ' You may ; she is a single woman of large fortune.' That 
 is a statement of fact. If he had told him the whole story and all 
 the facts " (that she had gone through an apparently invalid ceremony 
 of marriage) " that would have been a misrepresentation of law : " 
 Eaglesfield v. Marquis of Londonderry (4 Ch. D. 693, 703). 
 
 So here E. J. Cooper had told E. Cooper, not that such and such an 
 Act contained such and such a clause, the effect of which was to give 
 the fishery to E. J. Cooper, but that he was so entitled. And Edward 
 Cooper relied upon what his uncle said. And it made no matter that 
 he might, if he chose, have consulted the Act. 
 
 In Earl Beauchamp v. Winn (L. E. 6 H. L. 223) a claim was made Deed of 
 to set aside a deed of exchange, on the ground that the late Earl exchange. 
 
86 VICTIMS OF MISTAKE — MISTAKE OF FACT. 
 
 Beauchamp had executed it on an erroneous supposition common to 
 both parties* as to certain rights conferred by a deed of 1799 on his 
 • predecessor in title. Lord Chelmsford said : " If the late Earl, at the 
 time of the treaty for the exchange, had taken the trouble to examine 
 his title deeds, he would have found the grant of 1799," but this 
 negligence was insufficient to disentitle him to relief in equity. He 
 did not know of the deed or of its contents, and therefore might be 
 relieved against a mistake of fact. The case, however, was ultimately 
 decided on a different issue. 
 
 Mortgage. In a case before the Privy Council, Daniell v. Sinclair (6 App. Cas. 
 181), a mortgage deed (1865) authorized simple interest. In 1869 
 the mortgagee admitted by deed liability for an amount which assumed 
 that compound interest had been payable up to that date. In 1872 
 the mortgagee signed accounts which had been calculated upon the 
 same assumption. No money passed. It was held that since 1869 
 (and in spite of the signed accounts in 1872) only simple interest was 
 recoverable. The parties had made a common mistake as to what was 
 their own agreement. It is to be noted that no request was made to 
 cancel or rectify the admission of 1869, so that it is difficult to see 
 how far the question whether this was a mistake in law or in fact was 
 raised. It was apparently treated as the latter ; but Sir B. Peacock 
 said " in equity the line between mistakes in law and mistakes in fact 
 has not been so clearly and sharply drawn '' as at common law (p. 190). 
 In King v. Stewart (66 L. T. 339) the line was equally fine, though 
 not faint; but common law and not equity was responsible for it. 
 In that case, where a mortgagor had punctually paid interest at 5 
 per cent, to a trustee in ignorance that on punctual payment the rate 
 of interest was reducible to 4 per cent., and the trustee had paid the 
 money to the cestui que trust, it was held that the trustee was liable 
 to repay the excess of interest he had received. The mortgagor was 
 allowed to say that both parties had forgotten the contents of their 
 own mortgage deed before it was a year old. Compare Davies v. 
 Morier (2 Coll. 303). 
 
 Lease. These cases may be compared with Willmott v. Barber (15 Ch. D. 
 
 96), where a lessor was allowed to disprove alleged acquiescence in 
 acts of his under-lessee by saying that he did not at the time of 
 those acts know of certain clauses in the lease which he himself had 
 granted. Compare Allcard v. Walker ([1896] W. N. 53). 
 
 The reader has only to look back at Rogers v. Ingham, Powell v. 
 Smith, Hilliard v. Fulford, and Eaglesfield v. Marquis of London- 
 derry, in order to realize what a thin yet firm partition separates 
 these cases from cases of pure construction, i.e. pure law. 
 The following cases of title are more obviously mistakes in fact : — 
 
 Parcels. In Jones v. Clifford (3 Ch. D. 779) a purchaser bought property 
 
 from a vendor, which before completion, but after accepting the title, 
 he discovered to be his own. The discovery was made from docu- 
 ments dated prior to the root of title prescribed by the conditions of 
 sale. There had been a mutual mistake. Although the purchaser 
 
VICTIMS OF MISTAKE — MISTAKE OF FACT. 87 
 
 ought to have known his own title deeds, and although there was a 
 condition of sale precluding investigation into the documents of this 
 date, the purchaser was entitled to resist specific performance. As 
 to the effect of this condition on extrinsic evidence of this kind and 
 rights of purchaser to reclaim deposit, etc., see In re Scott and Alvarez' 
 Contract, Scott v. Alvarez ([1895] 1 Ch. 596); In re National Provincial 
 Bank of England and Marsh ([1895] 1 Ch. 190). See p. 67, ante. 
 
 Questions as to what are the parcels in a purchase deed are generally 
 matters more of fact than of construction, as evidence dehors the deed, 
 etc., is always necessary for their interpretation. In cases of releases 
 it is possible not only to interpret but to correct general words by 
 evidence as to the particular facts present to the minds of releasor 
 and releasee. In In re Garnett, Gandy v. Macaulay (31 Ch. D. 1), 
 two ladies who were entitled to quarter shares in a residuary personal 
 estate, valued at the time of passing the residuary account at £42,000, 
 executed some time afterwards a release to the trustee of the will in 
 consideration of the receipt of £10,500 each. In the mean time the 
 investments representing the residuary estate had greatly increased in 
 value, and one quarter share had become worth much more than 
 £10,500. The release had been drawn by the trustee's solicitor, 
 and the ladies had had no independent advice, and did not know of 
 the increase in value. It was held that the ladies' claim to the increase 
 in value was not barred by the release. Compare Pusey v. Desbouverie 
 (3 P. Wms. 315) ; McCarthy v. Decaix (2 R. & My. 614) ; Anon (31 
 Beav. 310) ; Farewell v. Coher (cited 2 Mer. 353). 
 
 In Turner v. Turner (14 Ch. D. 829), it was laid down that general 
 words in a release are limited always to that thing which was especially 
 in the contemplation of the parties at the time when the release was 
 given. So too in Stone v. Godfrey (ubi supra) ; Mildmay v. Hunger- Other 
 ford (2 Vern. 243), the misapprehension as to title was clearly three mistakes, 
 parts fact and one part law. 
 
 Where the rule caveat emptor applies, the Court is more reluctant Caveat 
 to grant relief; and a purchaser will not be allowed to say that he did em P tor - 
 not know the contents of a document which it was his duty to 
 investigate. Thus where an under-lease is granted by a lessee for a 
 longer term than that of the lease, the under-lessee must accept what 
 he can get, and without compensation : Besley v. Besley (9 Ch. D. 103) ; 
 Clayton v. Leech (41 Ch. D. 103). See post, chapter on Notice, pp. 311 
 et seq. In Tamplin v. James (15 Ch. D. 215), where there was a 
 mistake on the part of the purchaser as to the parcels, although 
 the particulars had described them correctly, James, L.J., in refusing 
 relief, said: "If a man will not take reasonable care to ascertain 
 what he is buying, he must take the consequences. ... It is not 
 enough for a purchaser to swear, ' I thought the farm sold contained 
 twelve fields which I knew, and I find it does not include them all ; ' 
 or, ' I thought it contained a hundred acres, and it only contains 
 eighty.' It would open the door to fraud if such a defence was to be 
 allowed." And Baggallay, L.J., cited the following passage from 
 
88 VICTIMS OF MISTAKE — MISTAKE OF FACT. 
 
 Other cases 
 of pure 
 fact. 
 
 Passive 
 jremedies. 
 
 Active 
 remedies. 
 
 Bilateral 
 mistakes. 
 
 the judgment in Swaisland v. Dearsley (29 Beavan, 430), as con- 
 taining a correct statement of the law : " The principle on which 
 the Court proceeds in cases of mistake is this— if it appears upon the 
 evidence that there was in the description of the property a matter on 
 which a person might bond fide make a mistake, and he swears positively 
 that he did make such a mistake, and his evidence is not disproved, 
 this Court cannot enforce the specific performance against him. if 
 there appears on the particulars no ground for the mistake, if no man 
 with his senses ahout him could have misapprehended the character of 
 the parcels, then I do not think it is sufficient for the purchaser to 
 swear that he made a mistake, or that he did not understand what he 
 was ahout." And compare converse case of Ohill v. Whittaker (2 
 Ph. 338). 
 
 Other recent cases involving pure questions of fact are Midland 
 Railway Co. v. Withington Local Board (11 Q. B. D. 788) ; Cochrane 
 v. Willis (L. B. 1 Ch. 58) ; Durrant v. Ecclesiastical Commissioners 
 (6 Q. B. D. 234). 
 
 In some cases the Court merely ignores the disposition founded on 
 mutual mistake. 
 
 A release hy legatees to an executor contained a recital that £19 8s. 
 was the legacy duty payable, and was retained in order to he paid. 
 More was payahle, and paid by the executor. It was held that he 
 was not estopped from claiming the balance from the legatees : Brooke 
 v. Haymer (6 Eq. 25). Compare In re Oarnett (ubi supra), where 
 the Court merely declared that the indenture of release " is not to be 
 treated as a binding release of all claims by the " cestui qui trust. In 
 Cochrane v. Willis (L. E. 1 Ch. 58), a declaration that the agreement 
 founded on mutual mistake was binding, was refused. 
 
 Where the mistake is on both sides, and (1) where it is partial — 
 A. B. sells a reversion to C. D. at an undervalue ; and both parties 
 estimate succession duty at £87. It is only £7. The mutual mistake 
 is ground for compensation only : Bettyes v. Maynard (49 L. T. 389). 
 A. B. and C. D. are entitled by agreement with E. P. to proceeds of 
 sale of a ship. C. D.'s right under the agreement to be satisfied in 
 priority to A. B. is declared by order of Court ; and he is so satisfied. 
 No action for rectification of the agreement will lie, as the agreement 
 is spent : Caird v. Moss (33 Ch. D. 22). 
 
 A. B. by mistake paid money entrusted to him by C. D. to a bank, 
 which was a creditor of C. D. When the bank was told that " a 
 mistake was made, an equity was fastened upon them not to alter the 
 position of the fund until the mistake could be repaired : " Colonial 
 Bank v. Exchange Bank (11 App. Cas. 84, Privy Council). As to 
 whether writing off debts is to be regarded as tantamount to paying 
 away money, quaere (ib. p. 89). Compare post, p. 186. 
 
 A. B. represents to the Court that she owns freeholds x., y., and % , 
 which are accordingly under an order of the Court conveyed to the 
 trustees of her marriage settlement. But x. had been sold, and the 
 proceeds of sale were in Court. The Court on learning of this will 
 
VICTIMS OF MISTAKE — MISTAKE OF FACT. 89 
 
 direct payment of the proceeds of sale of x. to the trustees : Mills v. 
 Fox (37 Ch. D. 153). 
 
 (2) Where the entire hasis or subject-matter of the contract or sale 
 is the subject of mistake, the proper remedy is rescission upon equitable 
 terms as in the leading case, or in the case of money paid an action 
 for money had and received : Durrant v. Ecclesiastical Commissioners 
 (ubi supra) ; qucere, as to a vendor and purchaser summons : In re 
 Young and Harston's Contract (31 Ch. D. 168). 
 
 The usual practice is to endorse the rectifying order of the Court on 
 the instrument rectified : White v. White (15 Eq. 247, 250), see Seton, 
 5th ed., p. 1441. It was held in Olley v. Fisher (34 Ch. D. 367, citing 
 Fry on Specific Performance, 3rd ed. p. 375) that the Court has, since 
 the Judicature Act, jurisdiction in every case in which the Statute of 
 Frauds is not a bar, to rectify a written agreement upon parol evidence 
 of mistake, and to order specific performance of the rectified agreement 
 in the same action. See Pearson v. Pearson (27 Ch. D. 145, 148, 
 149), where parol evidence was admitted on a counter-claim for recti- 
 fication. For counter-claims involving a claim to rescind see Hirschfild 
 v. L. B. & S. C. Railway Co. (2 Q. B. D. 1). Jurisdiction to rectify 
 a resettlement is not excluded by its having been enrolled under the 
 Fines and Recoverus Act (3 & 4 Will. IV. c. 74) : Rail-Bare v. Hall- 
 Dare (31 Ch. D. 251). 
 
 As to rectifying orders of Court founded on mistakes of fact, see 
 Ainworth v. Wilding ([1896] 1 Ch. 673) and Preston Banking Co. v. 
 Alsup ([1895] 1 Ch. 141), overruling Staniar v. Evans (34 Ch. D. 
 470) ; proof of debts in bankruptcy, see Ex parte Bagshaw, In re 
 Shaw (13 Ch. D. 304) ; In re london, Bombay, and Mediterranean 
 Bank (L. It. 9 Ch. 686). 
 
 "A consent order can be impeached upon any grounds which invali- 
 date the agreement it expresses : " per Lindley, L. J., in Huddernfield 
 Banking Co. v. Lister & Son ([1895] 2 Ch. 273, 280). 
 
 Where the mistake is unilateral, and (1) when it is partial — 
 
 A. B. offers to take 249 acres on lease at £500 a year ; C. D. accepts, 
 thinking the offer is only for 214 acres. A. B. can compel C. D. to 
 let to him 214 acres at a rental reduced pro rata : Mckenzie v. Hesketh 
 (7 Ch. D. 675). 
 
 A. B. contracts to sell his EDglish patents to C. D., who thought 
 that he was contracting to buy from A. B. his English and foreign 
 patents. C. D. can bring specific performance for the sale of the 
 English patents : Preston v. Luck (27 Ch. D. 497). 
 
 A. B. lets a house to C. D., but meant to reserve the first floor, and 
 thought he was doing so. A. B. may rescind the lease unless C. D. 
 permits him to rectify his error, in which case the error will be rectified : 
 Paget v. Marshall (28 Ch. D. 255). 
 
 A. B. compromises an action with C. Dl, though ignorant of a 
 material fact (which C. D. knows but has no duty to disclose). A. B. 
 cannot rescind his compromise, as this is ignorance, not mistake : 
 Turner v. Green ([1895] 2 Ch. 205). 
 
 Practice 
 in rectifi-' 
 cation. 
 
 Unilateral 
 mistakes. 
 
90 
 
 INFANTS. 
 
 Practice 
 generally. 
 
 A. B. grants land to C. D., reserving minerals; C. D. did not intend 
 minerals to be reserved, and did not know that this was so; as to 
 A. B. quaere. • A. B. may accept rectification or rescind. If C. D. 
 does not accept rescission, his action is dismissed : Bloomer v. Spittle 
 (13 Eq. 427) ; Harris v. Pepperell (5 Eq. 1) ; Garrard v. Franhd 
 (30 Beav. 445). 
 
 (2) Where it is total ; — in the Duke of Sutherland v. Heathcote 
 ([1892] 1 Ch. 475), A. B. having, though ignorant of the fact, a con- 
 current right with C. D. to work certain minerals, took a lease of the 
 mineral rights from C. D. On becoming aware of his rights, A. B. 
 sought to have the lease set aside or rectified. The Court held that 
 there was no mistake common to both parties, and that therefore there 
 were no materials for rectifying the lease so as to make it conform 
 with the intentions of both parties ; and that, under these circum- 
 stances, the only possible right which A. B. could have was to have 
 the lease set aside on equitable terms, one of which was the giving 
 up possession of the property leased. As A. B. was unwilling to do 
 this, the lease could neither be rectified nor set aside. 
 
 In connection with the subject of mistake it should be noted that 
 " rectification, setting aside and cancellation of deeds or other written 
 instruments," is by sect. 34 of the Judicature Act, 1873, specially 
 assigned to the Chancery Division. But under sect. 24, sub-sect. 2, 
 any other Division may treat a deed as set aside if the facts are such as 
 to justify its cancellation in the Chancery Division : Mostyn v. West 
 yn, etc., Co. (1 C. P. D. 145). 
 
 Infants. 
 
 Principle. 
 
 In re AGAR-ELLIS, AGAR-ELLIS v. LASCELLES. 
 
 (10 Ch. D. 49.) 
 
 A father has a right to control the religious education 
 of his infant children, but such right may be forfeited 
 or abdicated. The Court requires a stronger case to 
 induce it to interfere with the father than with a 
 testamentary guardian. 
 
 Summary A Protestant on his marriage with a Roman Catholic 
 
 of facts. . . 
 
 promised her that all the children should be brought up 
 as Eoman Catholics. Immediately after the birth of the 
 
INFANTS. 91 
 
 first child the husband determined that all his children 
 should be brought up as Protestants, and gave express 
 directions to that effect, but the mother, without the 
 father's knowledge, so indoctrinated the children (who 
 were of ages varying from nine and a half to twelve and 
 a half years), that at last they refused to go to a 
 Protestant place of worship. The Court of Appeal 
 granted an injunction to restrain the mother from taking 
 the children to confession, or to any other than a Church 
 of England place of worship. 
 
 The Court pointed out that it was on principle and authority settled Principle 
 so as to be beyond question that the ante-nuptial promise was abso- 
 lutely void, and the husband had a right to treat it as void. Compare 
 Andrews v. Salt (L. E. 8 Ch. 636) ; In re Violet Nevin, an Infant 
 ([1891] 2 Ch. 299). This preliminary point disposed of, the Court 
 addressed itself to the main question, namely, that between the father 
 and the children themselves, or rather between the father and the 
 law, " which is bound to protect the children from any abuse of the 
 parental power.'' " The right of the father,'' said James, L. J., " to 
 the custody and control of his children is one of the most sacred of all 
 rights. No doubt the law may take away from him the right, or may 
 interfere with his exercise of it, just as it may take away his life or his 
 property or interfere with his liberty, but it must be for some sufficient 
 cause known to the law. He may have forfeited such parental right 
 by moral misconduct or by the profession of immoral or irreligious 
 opinions deemed to unfit him to have the charge of any child at all, or 
 he may have abdicated such right by a course of conduct which would 
 make a resumption of his authority capricious and cruel towards the 
 children. But in the absence of some conduct by the father entailing 
 such forfeiture or amounting to such abdication, the Court has never 
 yet interfered with the father's legal right. It is a legal right with no 
 doubt a corresponding legal duty, but the breach or intended breach 
 of the duty must be proved by legal evidence before that right can he 
 rightfully interfered with.'' 
 
 A further point of importance arose in the leading case. The Court 
 was pressed to examine the children privately and to satisfy themselves 
 by that examination that the children had, in the language of Stourion 
 v. Stourton (8 D. M. & Gr. 760), '' received religious impressions to a 
 depth and an extent rendering dangerous and improper any attempt 
 at important changes in them, and so to satisfy themselves that the 
 father was about to abuse his parental authority by seeking to disturb 
 such religious convictions." The Lord Justices pointed out that that 
 case was the case of a testamentary guardian, a case of mere trust, 
 
92 
 
 INFANTS. 
 
 Jurisdic- 
 tion over 
 infants 
 without 
 property, 
 
 and with 
 property. 
 
 which is essentially under the jurisdiction of the Court and under a 
 jurisdiction always exercised with the widest judicial discretion, and 
 the same is to be said of all the cases in which the Court had so acted. 
 Compare In re Agar-Ellis (24 Ch. D. 317, 327, 328). 
 
 The Court of Appeal refused to insert a declaration as to the religion 
 in which the children were to be brought up " so as to throw on the 
 father the whole responsibility of doing then and during the remain- 
 ing years of his children's respective minorities what was right and 
 proper." 
 
 " The only point," the judgment went on to say, " upon which there 
 was any doubt, was whether the Court should interfere at all, whether 
 the Court, recognizing the father's undoubted right as king and ruler 
 in his own family, could be called on by him to be ancillary to the 
 exercise of his jurisdiction, and whether he ought not to be left to 
 enforce his commands by his own authority within his own domain." 
 On the principle, however, that the conduct of the mother was a wrong 
 to the children as well as to the father, the Court considered that the 
 injunction ought to be granted, and that it was its duty, pronouncing 
 what it deemed the law to be, to leave the matter to his sense of 
 parental duty and to his conscience. 
 
 The Court has two kinds of jurisdiction. (1) As delegate of the 
 Sovereign, who is parens patriot : In re Spence (2 Ph. 247). As this 
 jurisdiction extends over children without property, the ODly thing 
 that the Court can do in that case is to appoint, In re Scarilan, 
 Infants (40 Ch. D. 200), and remove or refuse, In re McGraih, 
 Infants ([1893] 1 Ch. 143) to remove and appoint guardians. Or the 
 same object may be obtained by granting, Barnardo v. McSugh ([1891] 
 A. C. 388), or refusing, The Queen v. Gyngall ([1893] 2 Q. B. 232), a 
 habeas corpus to the guardian. In the last case " those who had 
 the actual guardianship" gave " undertakings ; " and in In re Scanlan 
 the Court gave " directions " as to the education of the infant ; but 
 further than this the Court will not go: In re McOrath (p. 147). 
 But where an application is made for the production or custody of a 
 child by " a parent," meaning thereby " any person at law liable to 
 maintain " it or entitled to its custody, and the Court deprives the 
 parent of its custody under the Custody of Children Act, 1891, the 
 Court has power to make any order which it thinks fit " to secure that 
 the child be brought up in the religion in which the parent has a legal 
 right to require " it to be brought up ; regard being had to the power 
 of the Court to consult the child's wishes. 
 
 (2) If the infant is a ward of Court (see note) a scheme for its 
 maintenance and education will, in addition, be made, and injunctions 
 against taking it to this or that place of worship are often granted: 
 In re Newbery (L. E. 1 Ch. 263). Where since the Judicature Act, 
 1873, the Queen's Bench Division of the High Court of Justice grants 
 or refuses a habeas corpus for any of these purposes, it will exercise 
 its jurisdiction according to the principles and practice of the Chancery 
 Division : In re Goldsworthy (2 Q. B. D. 75) ; thus it will examine 
 
INFANTS. 93 
 
 boys under fourteen and girls under sixteen as to their views and 
 wishes, The Queen v. Gyngall ([1893] 2 Q. B. 232), although it would 
 not have done so previously to that Act : In re Agar-Ellis (24 Oh. D. 
 326) ; The Queen v. Gyngall ([1893] 2 Q. B. 235). 
 
 The wardship of infants is one of those matters which are assigned Statutory 
 to the Chancery Division by the Judicature Act, 1873 (s. 34). Ap- J? risd ' c " 
 plications to remove, confirm, and appoint guardians, and applications chancery 
 by a mother for the custody of or right of access to an infant, and Division, 
 applications by guardians for direction under the Guardianship of 
 Infants Act, 1886, are made to the Chancery Division of the High 
 Court or to the County Court: if made to the latter they may be 
 removed to the Chancery Division of the High Court at the instance 
 of any party. This Act supersedes 36 Vict. c. 12, uDder which the 
 Court of Chancery had a like power with regard to infants up to the 
 age of sixteen. The Act of 1886 will not be applied where an order 
 as to custody has been already made in the Divorce Court: Manders 
 v. Manders (63 L. T. 627). 
 
 The rule is that a father has the custody and control of his General 
 
 children, and this means that he controls their education and religion ; lu ,. e ? s ° 
 ' & ' religious 
 
 indeed, his religious control extends beyond his lifetime, for the education. 
 
 guardian of his children must carry out the actual or presumed re- 
 ligious wishes of the father ; and this rule applies whether such 
 guardian is appointed by deed or will by the father under 12 Car. II. 
 c. 24 (this statute only applies to a legitimate child, Sleeman v. Wilson 
 (13 Eq. 36), and only enables a father under age to appoint guardians 
 by deed since the Wills Act (1 Vict. c. 26)) ; or in like manner by 
 the mother under the Guardianship of Infants' Act, 1886 (this statute 
 does not expressly enable a mother who is a minor to appoint 
 guardians, although it probably has this effect, In re D'Angibau (15 
 Ch. D. 228), and it only enables her to appoint guardians during the 
 father's life, subject to confirmation by the Court and in the event 
 of the father's misconduct : In re G., an Infant ([1892] 1 Ch. 292)) ; 
 and whether (before the Act of 1886) there being no guardian appointed 
 by the father the widowed mother became "guardian by nurture" of 
 her sons until fourteen and her daughters until sixteen ; or (since the 
 Act of 1886), the widowed mother became statutory guardian either 
 alone or jointly with a guardian appointed by the father or Court, for 
 as statutory guardian she only has the powers of a guardian appointed 
 under 12 Car. II. c. 24, and is removeable if her removal is for the 
 welfare of the infant : In re Newbery (L. B. 1 Ch. 263) ; Eawksworth 
 v. Eawksworth (L. E. 6 Ch. 539); Skinner v. Orde (L. B. 4 P. C. 
 60) ; D' Alton v. D' Alton (4 P. D. 87). 
 
 (1) The father, however, can be deprived of these privileges by Exceptions 
 misconduct. Thus in Wellesley v. Wellesley (2 Bli. N.S. 124) the ™ eas f of 
 father lived an openly "immoral" life. See 48 & 49 Vict. c. 69, ducCetT" 
 s. 12 ; and compare Warde v. Warde (2 Ph. 786) and In re Halliday 
 (17 Jur. 56), which were cases under the Infants' Custody Act, 1839 
 (2 & 3 Vict. c. 54), and In re Taylor (4 Ch. D. 157) ; In re Elderton 
 
94 
 
 INFANTS. 
 
 (2) Abdica- 
 tion of 
 right to 
 religious 
 control. 
 
 Abdication 
 of custody. 
 
 (25 Ch. D. 220), which were cases under the Custody of Infants' 
 Act, 1873 (36 Vict. c. 12). Smart v. Smart ([1892] A. C. 425) was a 
 case under the inherent jurisdiction of the Court ; and the misconduct 
 consisted of drunkenness and gross accusations made against his wife. 
 Compare In re Besant (11 Ch. D. 508), a case under 36 Vict. c. 12, 
 s. 2, as to which see Condon v. Vollum (57 L. T. 154). 
 
 In re Besant proves that the Court will deprive a person entitled 
 under a separation deed of the custody of an infant for publishing an 
 obscene book and for opinions which it regarded as atheistic. In 
 Shelley v. Westbrooke (Jac. 266) the father's alleged atheism, combined 
 with his adultery and desertion, produced the same result. It is often 
 said that the profession of irreligious views is alone sufficient to induce 
 the Court to deprive a father of the custody of his children : having 
 regard to the dicta in In re Newbery, that would be a dangerous power 
 for the Court to exercise ; but the peril to the children, which is the 
 sole ground of intervention, " cannot be fixed for one age by the 
 standard of another : " Smart v. Smart, (p. 432) ; and the maxim that 
 " The Court judicially administering the law cannot hold one religion 
 to be better than another " ([1893] 1 Ch. 149) will doubtless expand 
 and develop. 
 
 (2) The father may abdicate his right to require that the children 
 should be brought up in his religion. The father may on his death- 
 bed commend his children to the care of relatives of an alien creed, 
 In re Violet Nevin ([1891] 2 Ch. 299), although deathbed recommenda- 
 tions may only be signs of vacillation, Andrews v. Salt (L. B. 8 Ch. 
 622) and the views of vacillators and Galleos will not be regarded as 
 of importance : In re McCrath, Infants ([1893] 1 Ch. 143) ; or he may 
 have allowed his children to be baptized in an alien church, Sill v. Hill 
 (10 W. E. 400) ; In re Clarke (21 Ch. D. 817), although this alone is 
 not conclusive, In re Violet Nevin, In re McGrutJi, and the children 
 may in consequence have resided with other people and acquired other 
 convictions which it would be injudicious to disturb. In these cases 
 the Court refused to assist in carrying out the father's intentions. For 
 in these cases the intersts of the children are paramount. But the 
 policy of not disturbing the religious views acquired by a child of 
 eight years old was not regarded as of importance in Hawhsworth v. 
 Hawksworth (L. E. 6 Ch. 539), Andrews v. Salt (L. E. 8 Ch. 622) 
 (where the child was eleven years old) ; but see Stourton v. Stourton 
 (8 D. M. & Gr. 760) commented on in Hawhsworth v. Hawhesworth 
 (p. 543). In In re Newton ([1896] 1 Ch. 740) the father of infant?, 
 fifteen and eleven years old, " deliberately allowed his children to be 
 brought up as members of the Church of England until it is too late 
 for him to insist on the desired change" to Eoman Catholicism. But 
 this case was mixed ; for negleot brought this case under the third 
 class as well. On the other hand, this case was peculiarly strong, as 
 the father was alive. 
 
 (3) Desertion and inability to provide for a child, In re Ethel 
 Brown (13 Q. B. D. 614), The Queen v. Gyngall ([1893] 2 Q. B. 232), 
 
INFANTS. 95 
 
 may disentitle a living father or widowed mother respectively to insist 
 on their " natural rights " of custody. Permission that the children 
 should look for present and future maintenance to other people, Lyons 
 v. Blenhin (Jac. 245) — from which limited delegated custody must be 
 distinguished, Barnardo v. Ford ([1892] A. C. 326)— will add weight 
 to this plea. The Court will not, however, prefer a child's pecuniary 
 interest to what its father would have regarded as its spiritual interests : 
 Talbot v. Earl of Shrewsbury (4 My. & Cr. 672). The welfare which 
 the Court regards is its moral, religious, and physical welfare — its 
 welfare all round : per Lindley, L.J. ([1893] 1 Ch. 148) ; per Lord 
 Esher, M.E. ([1893] 2 Q. B. 242). 
 
 (4) Again, if a father removes or seeks to remove his children, Eemoval 
 being wards of Court, out of the jurisdiction he will be restrained by out of the 
 injunction from doing so : Bochford v. Hackman (Kay, 308) ; In re Jy rlsdlc " 
 Plomley, Vidler v. Collyer (47 L. T. 283) ; but permission was granted 
 
 in In re Gallaghan (28 Ch. D. 186). 
 
 (5) The Custody of Children Act, 1891 (54 Vict. c. 3) makes Other 
 abandonment and desertion of a child, or a permission that it should be cases - 
 brought up at another person's expense under circumstances which 
 imply that the parent was unmindful of his or her parental duties, 
 grounds for refusing custody to a parent (sect. 3). Sect. 1 has ap- 
 parently altered ([1893] 2 Q. B. 237); but although suggested by 
 Barnardo v. McHugh ([1891] A. C. 388), it may be doubted how far 
 
 sect. 3 has altered the principles upon which the Court has always acted. 
 Perhaps, however, it shifts on to the parent the onus of proving that 
 he or she is a fit person to have custody of the child. Deprivation of 
 custody under this Act may be accompanied by an order that the 
 infant shall be brought up in the religion on which its parent has a 
 legal right to insist, and there are important provisions as to ex- 
 penses of maintenance in sect. 2. 
 
 In making orders for custody and right of access upon the appli- 
 cation of a mother under the Act of 1886, the Court will have regard 
 to " the welfare of the infant," " the conduct of the parents," and 
 " the wishes as well of the mother as of the father." 
 
 Note. 
 
 An infant with property becomes a ward of Court (1) if an action is 
 commenced in his name ; (2) if an order is made on petition or sum- 
 mons for the appointment of a guardian; (3) if an order is made 
 in like manner for maintenance; (4) if a fund belonging to an 
 infant is paid into Court under sect. 42 of the Trustee Act, 1893, in 
 so far as it replaces the (repealed) Trustee Belief Acts, 1847 & 1849. 
 But payments into Court under the same section in so far as it replaces 
 the (repealed) Legacy Duty Act, 1796 (s. 32), and payments into 
 Court under the Lands' Clauses Act, 1845, and orders approving an 
 infant's settlement under the Infants' Settlement Act, 1855, do not 
 have this effect. The authorities are given in Simpson on Infants, 
 
96 THE MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 2nd ed. p. 241. In Brown v. Collins (25 Cli. D. 56), it was considered 
 doubtful whether the mere carrying over a fund to the separate 
 account of an infant, in an action to which the infant is not a party, 
 constitutes the infant a ward of Court. 
 
 The Married Women s Property Act, 1882. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 REID v. REID. 
 
 (31 Ch. D. 402.) 
 
 Sect. 5 of the Married Women's Property Act, 1882, 
 is limited to property the title to which accrues since 
 the 1st January, 1883, and accordingly when a woman 
 married before 1st January, 1883, has acquired a 
 title to property whether vested or contingent, and 
 whether in remainder or reversion before that date, 
 such property does not become separate property by 
 falling into possession after that date. 
 
 A woman married in 1871 was entitled under a settle- 
 ment made in 1874 to a reversionary interest in the 
 proceeds of the sale of certain real estate, and on the 
 death of the tenant for life in February, 1883, she 
 brought an action asking for a declaration under the 
 Married Women's Property Act, 1882, that she was en- 
 titled for her separate use to her interest under the deed 
 of 1874, or in the alternative that the whole of such 
 share might be settled on her or her children. 
 
 The Court of Appeal decided that she was not entitled 
 to the declaration that the property in question was her 
 separate property, but remitted the question as to her 
 equity to a settlement to be dealt with by the judge 
 from whom the appeal was brought. 
 
TEE MARRIED WOMEN'S PROPERTY ACT, 1882. 97 
 
 I. The decision of the Court of Appeal in this case settled the law I. What 
 on the construction of sect. 5 of the M. W. P. Act, 1882 (45 & 4.6 itttel ' ests 
 Vict. c. 75) which, in the words of Cotton, L.J., had given rise to a t j le Aot> 
 most singular variety of judicial opinions, which are noticed in the 
 argument (p. 404). 
 
 In coming to a conclusion with regard to the meaning of this section, Principle 
 the Court of Appeal recognized the principle emhodied in the maxim of oon T 
 " omnis nova constitutio futuris formam imponere debet non prce- 
 teritis," i.e. that except in special cases a statute ought to be con- 
 strued so as to interfere as little as possible with vested rights ; and 
 that if the words of a statute are ambiguous, the construction which 
 leads to less inconvenience ought to be adopted; but was chiefly 
 influenced by the precise words employed by the legislature. Little 
 or no assistance, they said, could be derived from the cases which had 
 been decided on covenants with regard to after-acquired property con- 
 tained in marriage settlements. Thus cases on marriage settlements, 
 as pointed out in In re Clinton's Trusts (L. E. 13 Eq. 295, 305), cited 
 in the judgment, " must be approached with the presumption that 
 the object and intention of the settlement is to prevent the husband 
 acquiring property of the wife which falls into possession during the 
 coverture." Sect. 5 of the Act, on the contrary, being to some extent of sect. 5. 
 retrospective, and applying as it does to persons married before the 
 Act, is limited to property, the title to which accrues after the Act, 
 and there is consequently " no presumption that it, is not intended to 
 be confined to property in which the husband at the commencement 
 of the Act had not any interest." 
 
 It" had been contended, on behalf of the claim of Mrs. Eeid, that Argument 
 there might be five kinds of accruer of title, either vested, contingent, on sect - 5 - 
 in possession, in reversion, or in remainder, and that if any one of them 
 happened after 1st January, 1883, the property was to be treated as 
 separate property. The Court of Appeal, however, decided that 
 according to the fair construction of the section one title only was 
 dealt with, and that the words were introduced to preclude an argu- 
 ment which might otherwise have been raised — that the accruer of 
 the title in reversion or contingency was not an accruer of title within 
 the meaning of the Act. Or perhaps the words may have been 
 introduced in order to exclude interests in expectancy. Thus a " spes 
 successionis " is an " interest in expectancy," In re Johnson, Moore v. 
 Johnson ([1891] 3 Ch. 48), but not a "contingent title; " and there- 
 fore a will which took effect in 1879, and which bequeathed personalty 
 to trustees upon trusts which failed in 1886, and subject thereto upon 
 trust for such persons as would have been testator's next of kin had 
 he then died intestate, was only regarded as conferring upon such 
 next of kin a " spes successionis " between 1879 and 1886, so that 
 their " title " only accrued at the last mentioned date : In re Parsons, 
 Stockley v. Parsons (45 Ch. D. 51). See also as to commencement 
 of Act, Weldon v. Winslow (13 Q. B. D. 784), Lowe v. Fox (15 
 Q. B. D. 667) (tort) ; Gloucestershire Banking Co. v. Phillipps (12 
 
 H 
 
98 THE MAREIED WOMEN'S PROPERTY ACT, 1882. 
 
 Sect. 19. 
 
 II. Juris- 
 diction. 
 
 III. General 
 effects. 
 
 New 
 
 liabilities, 
 rights of 
 property 
 and action. 
 
 Q. B. D. 533); Conolan v. Let/land (27 Cb. D. 632) (contract); In 
 re Bowen, James v. James ([1892] 2 Ch. 291) ; compare In re Wylie 
 ([1895] 2 Ch. 116) (will). 
 
 On the other hand, sect. 19 contains a wide saving clause, the effect 
 of which is that for certain purposes settlements are construed as- 
 though the Act had not been passed. Thus in In re Whitaher, 
 Christian v. Whitaher (34 Ch. D. 227), a married woman became 
 entitled in 1884 to personalty not settled to her separate use, and it 
 was decided that this property was bound by a covenant to settle 
 after acquired property other than property given to her separate use. 
 "The property is bound by the covenant as if the Act had never 
 passed." Compare In re Stonor's Trusts (24 Ch. D. 195). Again, 
 where an infant lady and her husband in 1890 settled £1000, which 
 vested in the lady on marriage, and on attaining twenty-one she 
 repudiated the settlement ; it was held that the money was bound by 
 the settlement because her husband had settled it : Stevens v. Trevor- 
 Garrich ([1893] 2 Ch. 307), following Hancock v. Hancock (38 Ch. 
 D. 78). See post, p. 103. 
 
 II. The Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), 
 specifically assigned to the Court of Chancery or CouDty Court the 
 business of deciding all questions as to property declared by the Act 
 to be separate property of the wife and as to the appointment of 
 trustees of policies of assurance. That Act has been repealed (subject 
 to a saving clause) by sect. 22 of the M. W. P. Act, 1882, sect. 17 of 
 which enables any judge of the High Court of Justice or County 
 Court to determine all questions between husband and wife as to the 
 title to or possession of property ; although the 11th section assigns 
 the appointment of trustees of policy moneys to the Chancery Division, 
 or (where the trust estate does not exceed £500) County Courts. See 
 C. C. Annual Practice, pp. 462 et seq. 
 
 III. The following are the most important but not the most obvious 
 consequences produced by this Statute upon the rights of property and 
 upon the status of women married after January 1st, 1883, or subject 
 to the new law under sect. 5 : — 
 
 " The right of action is the same as against a man, but the relief 
 is different : " per Pry, L. J., Whittaker v. Kershaw (45 Ch. D. 320, 
 329 ; cited [1891] 1 Q. B. 783). Property over which she has and 
 executes a general power of appointment is subject to her debts, In 
 re Ann, Wilson v. Ann ([1894] 1 Ch. 549), though such power is to 
 appoint by will only : In re Parkin, Hill v. Schwarz ([1892] 3 Ch. 510). 
 She can release a power coupled with an interest to her separate use : 
 In re Davenport, Turner v. King ([1895] 1 Ch. 361). She can enlarge 
 a base fee without acknowledgment, and without her husband's assent : 
 In re Drummond and Davie's Contract ([1891] 1 Ch. 524). She can 
 sign an administration bond alone : In re Ayres (8 P. D. 168). 
 Separate examination is no longer necessary under sect. 59 of the 
 Settled Estates Act, 1877, if the woman was married after 1882 : In 
 re Harris' Settled Estates (28 Ch. D. 171) ; Riddell v. Errington (26 Ch. 
 
THE MARRIED WOMEN'S PROPERTY ACT, 1882. 99 
 
 D. 220); contrast In re Arabin's Trusts ([1885] W. N. 90). Cases of 
 fraud on marital rights and equities to a settlement are obsolete. 
 
 " The effect of marriage on particular property in which a woman Joint- 
 has an interest as joint-tenant depends on whether the marriage tenant - 
 divests the property from the wife and vests it in the husband : " In e °' 
 re Butter's Trusts, Hughes v. Anderson (38 Ch. D. 286, 294) ; there- 
 fore marriage will not now sever a joint-tenancy. In In re March, 
 Mander v. Harris (27 Ch. D. 166), a testatrix who died after 1st 
 January, 1883, by her will executed before that date, gave her property 
 to C. J. M. and J. H., and B. his wife, " to and for their own use and 
 benefit." The will was construed in accordance with the old law, 
 and C. J. M. took one moiety, J. H. took a quarter, and E. H. his 
 wife took the other quarter for her separate use. " In my opinion," 
 said Cotton, L.J., "the Act was not intended to alter any rights 
 excepting those of the husband and wife inter se. "What the effect 
 will be when words similar to these occur in a will made after the 
 Act came into operation, I do not say." A conveyance after 1883 to 
 the use of her and her husband makes her and her husband joint 
 tenants : Thorriley v. Thornley ([1893] 2 Ch. 229). In re March was 
 followed in the case of a will made after 1883 in In re Jupp, Jupp 
 v. Buckwell (39 Ch. D. 148), commented on by North, J., in In re 
 Dixon, Byram v. Tull (42 Ch. D. 306). 
 
 She can make joint contracts, Hoare v. Niblett ([1891] 1 Q. B. 781), Action. 
 and may sue as co-plaintiff with her husband for damages : Beasley v. 
 Roney ([1891] 1 Q. B. 509). A husband can bring an action against 
 his wife for money lent by him to her or paid by him for her after 
 marriage : Butler v. Butler (16 Q. B. D. 374). Debts between husband 
 and wife are subject to the Statutes of Limitations : In re Lady 
 Hastings, Hallett v. Hastings (35 Cb. D. 94). Her property is subject 
 to innkeeper's lien : Gordon v. Silber (25 Q. B. D. 491). As legatee 
 she is liable to refund money paid by the executors in respect of her 
 share : Whittaker v. Kershaw (45 Ch. D. 320). 
 
 If she carries on a trade jointly with her husband, or does not trade, Doubtful 
 it is doubtful whether she can be made bankrupt. It is doubtful points, 
 whether she can disclaim a power not coupled with an interest. It 
 is doubtful whether a gift of paraphernal articles by husband to 
 wife will be construed as an out and out gift : In re Vansittart ([1893] 
 1 Q. B. 181), or as a gift of paraphernalia in the old sense : Tasker v. 
 Tasher ([1895] P. 1). See as to other gifts : Ramsay v. Margrett 
 ([1894] 2 Q. B. 18). 
 
 Property over which she has a geoeral power of appointment, but No change, 
 which has not been exercised, cannot be made subject to her debts in 
 bankruptcy: Ex parte Oilchrist, In re Armstrong (17 Q. B. D. 521). 
 She cannot be made bankrupt under sect. 4 (1) (g) of the Bankruptcy 
 Act, 1883 : In re Lynes, Ex parte Lester & Co. ([1893] 2 Q. B. 113 ; 
 In re Hewett, Ex parte Levene ([1895] 1 Q. B. 328). She cannot be 
 sent to prison for post-nuptial debts under sect. 5 of the Debtors' Act, 
 1869 : Scott v. Morley (20 Q. B. D. 120). She cannot make a gift by 
 
100 THE MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 Husband's 
 rights and 
 liabilities. 
 
 IV. The 
 M. W. P. 
 
 Acts, 1882, 
 1893. 
 
 Oeneral 
 provisions 
 as to 
 property, 
 
 wills, 
 
 contracts 
 and torts, 
 
 will when restrained from doing so by any statute : In re Smith's 
 Estate, Clements v. Ward (35 Ch. D. 589). She cannot be a next 
 friend or guardian ad litem : In re Duke of Somerset, Thynne v. St. 
 Maur (34 Ch. D. 465). 
 
 In spite, of the words "feme sole " (sect. 1 (1)), the husband is still 
 tenant by curtesy of his deceased wife's realty, Hope, v. Hope ([1892] 
 2 Ch. 336), and still takes her personalty, and is liable to that extent 
 ipr her debts if she dies intestate : In re Lambert's Estate, Stanton 
 v. Lambert (39 Cti. D. 626) ; Surman v. Wharton ([1891] 1 Q. B. 491). 
 Her husband can be sued for torts committed by her : Seroka v. Kat- 
 tenburg (17 Q. B. D. 177). 
 
 The law with regard to the husband's liability for his wife's ante- 
 nuptial debts was summed up by Lord Justice Lindley, in Beck v. 
 Pierce (23 Q. B. D. 316), as follows : — " The Married Women's Pro- 
 perty Act, 1882, has entirely altered the law as regards the liabilities 
 of husbands for their wives' ante-nuptial debts. First, he can now be 
 sued without her, and whether she be alive or dead. Secondly, he can 
 be sued with her under sect. 15, if the plaintiff seeks to establish his 
 claim wholly or in part against both husband and wife ; but in this 
 case the judgments may be separate, although to the extent to which 
 they are both liable, the judgment may be ' a joint judgment against 
 the husband personally, and against the wife as to her separate pro- 
 perty.' What the word 'joint 'means in this sentence is not clear. 
 Thirdly, the husband's liability is no longer unlimited as at Common 
 Law ; it is limited to the value of his wife's property which he may 
 have acquired (see sect. 14). Fourthly, as between him and her he 
 is entitled to be indemnified out of her separate property (see sect. 
 13)." See also references to ante-nuptial debts in the notes to the next 
 leading case. 
 
 IV. The following are the principal sections of the Married Women's 
 Property Act, 1882, omitting the sections repealed by the Act of 1893,* 
 and substituting the corresponding sections of that Act : — 
 
 "Sect. 1 (1). A married woman shall, in accordance with the 
 provisions of this Act, be capable of acquiring, holding, and disposing 
 by will or otherwise of any real or personal property as her separate 
 property, in the same manner as if she were a. feme sole, without the 
 intervention of any trustee." 
 
 * " Sect. 3. Sect. 24 of the Wills Act, 1837, shall apply to the will 
 of a married woman made during coverture, whether she is or is not 
 possessed of or entitled to any separate property at the time of making 
 it, and such will shall not require to be re-executed or republished 
 after the death of her husband." This section applies if she dies after 
 the Act : In re Wylie, Wylie v. Moffat ([1895] 2 Ch. 116). 
 
 " Sect. 1 (2). A married woman shall be capable of entering into 
 and rendering herself liable in respect of and to the extent of her 
 separate property on any contract, and of suing and being sued, either 
 in contract or in tort, or otherwise, in all respects as if she were a 
 feme sole, and her husband need not be joined with her as plaintiff or 
 
THE MARRIED WOMEN'S PROPERTY ACT, 1882. 101 
 
 defendant, or be made a party to any action or other legal proceeding \ 
 brought by or taken against her; and any damages or costs recovered 
 by her in any such action or proceeding shall be her separate pro- 
 perty ; and any damages or costs recovered against her in such action 
 or proceeding shall be payable out of her separate property, and not 
 otherwise." 
 
 * " 1. Every contract hereafter entered into by a married woman 
 otherwise than as agent (o) shall be deemed to be a contract entered 
 into by her with respect to and to bind her separate property, whether 
 she is or is not in fact possessed of or entitled to any separate property 
 at the time when she enters into such contract ; (V) shall bind all 
 separate property which she may at that time or thereafter be 
 possessed of or entitled to ; (c) shall also be enforceable by process 
 of law against all property which she may thereafter while discovert 
 be possessed of or entitled to : Provided that nothing in this section 
 contained shall render available to satisfy any liability or obligation 
 arising out of such contract any separate property which at that time 
 or thereafter she is restrained from anticipating." 
 
 * Sect. 2 subjects the said proviso to a proviso that the Court may 
 order payment of costs out of property subject to restraint on anticipa- 
 tion, and enforce its order by appointment of receiver or by sale. 
 But this only applies where a married woman is plaintiff or counter- 
 claims : Hood Barrs v. Cathcart ([1895] 1 Q. B. 873) ; it does not 
 apply where the married woman is defendant or where she appeals 
 as such : Hood Barrs v. Cathcart ([1894] 3 Ch. 376) ; Moran v. Place 
 (74 L. T. 223) (affirmed 12 T. L. B. 407). Costs are only payable out 
 of property to which she is entitled free from restraint at the date of 
 the order ; and this includes income subject to restraint as soon as it 
 is due : Hood Barrs v. Heriot ([1896] A. C. 174), overruling Hood 
 Barrs v. Cathcart ([1894] 2 Q. B. 559) ; and see Draycott v. Harrison 
 (17 Q. B. D. 147) ; Cox v. Bennett ([1891] 1 Ch. 617) ; Whiteley v. 
 Edwards (12 T. L. E. 429). 
 
 "Sect. 1 (5). Every married woman carrying on a trade separately and trade 
 from her husband shall, in respect of her separate property, be subject married 
 to the bankruptcy laws in the same way as if she were a feme 
 sole." 
 
 Sect. 2 provides that "every woman who marries after the com- Property 
 
 mencement of this Act shall be entitled to have and to hold as her act t uil ' e <i D y 
 
 separate property and to dispose of in manner aforesaid all real and marl .j ec [ 
 
 personal property which shall belong to her at the time of marriage, after the 
 
 or shall be acquired by or devolve upon her after marriage, including Act to be 
 
 any wages, earnings, money, and property gained or acquired by" her J , J er 
 
 in any employment, trade, or occupation, in which she is engaged, or so ? e . 
 which she carries on separately from her husband, or by the exercise 
 of any literary, artistic, or scientific skill." 
 
 Sect. 3. In the case of " any money or other estate of the wife lent Loans by 
 
 or entrusted by her to her husband for the purpose of any trade or wife to 
 
 business carried on by him, or otherwise," her claims against his estate nusl)and - 
 
102 THE MARRIED WOMEN'S PROPERTY ACT, 1882. 
 
 Property 
 acquired by 
 a married 
 woman 
 after the 
 Act to be 
 held by her 
 as a feme 
 sole. 
 
 Sects. 6, 7, 
 8, 9. 
 
 Sect. 10. 
 Sect. 11. 
 Policies of 
 A ssurance. 
 
 Remedies 
 by and 
 against 
 married 
 women. 
 
 are postponed to those of other creditors for value. This does not 
 affect her rights of retainer as administratrix : In re May (45 Ch. D. 
 499). The rights in administration actions are the same as in 
 bankruptcy: In re Leng, Tarn v. Emmerson ([1895] 1 Ch. 652). 
 " Otherwise " is surplusage : Mackintosh v. Pogose ([1895] 1 Ch. 505). 
 This section does not apply to joint assets where the husband is a 
 partner : In re Tuff, Ex parte Nottingham (19 Q. B. D. 88). 
 
 Sect. 4 provides " that the execution of a general power by will by a 
 married woman shall have the effect of making the property appointed 
 liable for her debts and other liabilities in the same manner as her 
 separate estate is made liable under this Act." See as to the previous 
 law Vaughan v. Vanderstegan (2 Drew. 363), where the appointed 
 property was held liable on the ground of fraud ; The London Char- 
 tered Bank of Australia v. Lempriere (L. E. 4 P. C. 572); In re 
 Harvey's Estate, Godfrey v. Earben (13 Ch. D. 216) ; Hodges v. Hodges 
 (20 Cb. D. 749). 
 
 Sect. 5 provides " that every woman married befure the commence- 
 ment of this Act (1st January, 1883), shall be entitled to have and 
 to hold and to dispose of in manner aforesaid as her separate property 
 all real and personal property, her title to which, whether vested or 
 contingent, and whether in possession, reversion, or remainder, shall 
 accrue after the commencement of this Act, including any wages, 
 earnings, money, and property so gained or acquired by her as afore- 
 said." 
 
 Sects. 6, 7, 8, 9 make provision with regard to stock, etc., to which 
 a married woman is entitled or which is transferred to her, and with 
 regard to joint investments in names of married women and others, 
 and sect. 10 makes provision against fraudulent investments with the 
 money of the husband. Sect. 11 deals with the subject of policies of 
 assurance. See In re Soutar's Policy Trusts (26 Ch. D. 236) ; In re 
 Adam's Policy Trusts (23 Ch. D. 525) ; In re. Seyton (34 Ch. D. 511) ; 
 In re Davies' Policy Trusts ([1892] 1 Ch. 90). 
 
 Sect. 12 confers upon a married woman the same civil remedies 
 against all persons whomsoever, including her husband, for the pro- 
 tection and security of her separate property as if such property 
 belonged to her as a. feme sole. Similar rights are conferred in cases of 
 torts and crimes affecting her property. Sect. 16 renders a wife liable 
 to criminal proceedings if she does any act which if done by the 
 husband with respect to property of the wife would make the husband 
 liable to criminal proceedings by the wife under the Act. By 47 & 
 48 Vict. c. 14 (passed in consequence of the decision in R. v. Brittle- 
 ton (12 Q. B. D. 266)), in any such criminal proceeding against a 
 husband or a wife as is authorized by the Married Women's Property 
 Act, 1882, the husband and wife respectively shall be competent and 
 admissible witnesses, and, except when defendant, compellable to give 
 evidence. 
 
 For sects. 13 to 15 see Beck v. Pierce (23 Q. B. D. 316), cited above, 
 p. 100 ; and see p. 106. 
 
TEE MARRIED WOMEN'S PROPERTY ACT, 1882. 103 
 
 Sect. 18 is to be read along with. sect. 24, which frees the husband 
 from all liability, " unless he has acted or intermeddled in the trusts or 
 administration," and provides that "A marriel woman who is an 
 •executrix or administratrix alone or jointly with any other person or 
 persons of the estate of any deceased person, or a trustee alone or jointly 
 as aforesaid of property subject to any trust, may sue or be sued, and 
 may transfer or join in transferring any such annuity or deposit as 
 aforesaid, or any sum forming part of the public stocks or funds, or of 
 any other stocks or funds transferable as aforesaid, or any share, stock, 
 debenture, debenture stock, or other benefit, right, claim, or other 
 interest of or in any such corporation, company, public body, or 
 society in that character, without her husband, as if she were a feme 
 sole." In the case of In re Hawksworth ([1887] W. N. 113), the 
 Paymaster-General declined to part with the fund belonging to a 
 married woman without the receipt of the husband, and the Court 
 added to the order the words " on ber separate receipt." 
 
 Sect. 19 provides : " Nothing in this Act contained shall interfere 
 with or affect any settlement or agreement for a settlement made or to 
 be made, whether before or after marriage, respecting the property of 
 any married woman, or shall interfere with or render inoperative any 
 restriction against anticipation at present attached, or to be hereafter 
 attached to the enjoyment of any property or income by a woman 
 under any settlement, agreement for a settlement, will, or other instru- 
 ment ; but no restriction against anticipation contained in any settle- 
 ment or agreement for a settlement of a woman's own property to be 
 made or entered into by herself shall have any validity against debts 
 contracted by her before marriage, and no settlement or agreement 
 for a settlement shall have any greater force or validity against 
 creditors of such woman than a like settlement or agreement for a 
 settlement made or entered into by a man would have against his 
 creditors." See ante, p. 98. 
 
 See Wolstenholme's Conveyancing, etc., Acts, 7th ed. 
 
 Married 
 woman as 
 an execu- 
 trix or 
 trustee. 
 
 Saving of 
 existing 
 settle- 
 ments and 
 the power 
 to make 
 future 
 settle- 
 ments, and 
 of re- 
 straints on 
 anticipa- 
 tion. 
 
104 REMOVAL OF RESTRAINT ON ANTICIPATION. 
 
 Removal of Restraint on Anticipation. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 Li re WARREN'S SETTLEMENT. 
 
 (52 L. J. Ch. 928.) 
 
 The Court has not, under sect. 39 of the Con- 
 veyancing Act, 1881, a general power of removing the 
 restraint upon anticipation, hut only a power to make 
 binding a particular disposition of property by a 
 married woman if it be for her benefit. 
 
 Property had been settled upon trust to pay the in- 
 come to the wife for life without power of anticipation, 
 and then to the husband for life if surviving, then to the 
 children of the marriage, and in default of children for 
 the husband absolutely. The parties had been married 
 for 28 years without having any children, the wife was 
 50 years old, and there was medical evidence that it was 
 almost impossible for her to have issue. Both husband 
 and wife were in straitened circumstances. The Court of 
 Appeal declined to remove the restraint on anticipation. 
 
 Convey- The 39th section of the Conveyancing Act, 1881, applies to judg- 
 
 ancing Act, ments or orders made after the 1st January, 1882, and provides that, 
 1881, s. 39. "notwithstanding that a married woman is restrained from antici- 
 pation, the Court may, if it thinks fit, where it appears to the Court to 
 be for her benefit, by judgment or order, with her consent, bind her 
 interest in any property." This is a new power and is in fact a 
 legislative reversal of the principle laid down in the case of Robinson 
 v. Wheelwright (6 D. M. & G. 535), where it was held that effect 
 could not be given to a bequest to a married woman upon condition 
 that she conveyed to certain persons within a limited time property 
 subject to a restraint on anticipation. The only power which 
 is similar to this is the power of removing restraint for the pur- 
 pose of compromising a suit, Wilton v. Hill (25 L. J. Ch. 156) and 
 of allowing a solicitor's expenses which are incurred in saving the fund, 
 
REMOVAL OF RESTRAINT ON ANTICIPATION. 105 
 
 to be charged on it: In re Keane (12 Eq. 115). The Probate and 
 Divorce Division can only exercise this power when the wife ceases to 
 be a wife, Michell v. Michell ([1891] 1 P. 208), and in cases of judicial' 
 separation and protection orders the restraint can only be removed 
 with regard to property subsequently acquired : Waite v. Morland 
 (38 Oh. D. 135) ; Hill v. Cooper ([1893] 2 Q. B. 85). 
 
 The history of the doctrine of restraint on anticipation attached to History 
 property belonging to a married woman for her separate use com- °/ tn e 
 mences a little more than a century ago. In 1785 a post-nuptial 
 settlement was made in pursuance of a decree of the Court of Chancery 
 on the marriage of Miss Vernon, by which real estate had been vested 
 in trustees upon trust during the wife's life, to pay the income as the 
 wife should from time to time appoint, and in default for her separate 
 use, and there was a similar trust as to the dividends of a sum of stock, 
 excepting that the words from "time to time " were omitted in the 
 power. A few months after the wife joined the husband in incumber- 
 ing her life interest, the incumbrancers took proceedings to enforce 
 their security, and Lord Thurlow, who had made the decree directing 
 the settlement, felt himself constrained to decide in their favour. The 
 story is well told by Lord Eldon in Jones v. Harris (9 Vesey, 493) ; 
 "So in Pylus v. Smith (1 Ves. Jun. 189), the Court settled the 
 property in order to protect it with all the anxious terms then known 
 to conveyancers. In a day or two afterwards, while the wax was yet 
 warm upon the deed, the creditors of the husband got a claim upon it 
 by an informal instrument, and the same judge who had made such 
 efforts to protect her was, upon authority, obliged to withdraw that 
 protection. In a subsequent case, in which Lord Thurlow became 
 a trustee, he inserted words " (and not by anticipation) " that he 
 hoped would take the case out of Lord Hardwicke's doctrine." 
 From the time when these words were inserted by Lord Thurlow, 
 this has been the usual formulary, and the effect of it, for the purpose 
 of excluding the power of disposition, has never been questioned- 
 The words, however, though almost universally employed, are not 
 absolutely indispensable, for if the intention to restrain anticipation 
 can be clearly collected from the whole instrument, it is sufficient. 
 (Lewin on Trusts, 9th ed., p. 888, where the cases as to the words 
 which have and have not been held effectual for the purpose will be 
 found collected.) 
 
 It was settled by Tullett v. Armstrong (1 Beav. 1 ; 4 My. & Or. 377), Its con- 
 that the restraint on anticipation along with the separate use stands or nation 
 falls together, ceases during discoverture and revives upon subsequent wl 
 marriage. In Stogdon v. Lee ([1891] 1 Q. B. 661) it was decided that use . 
 this restraint is only effectual if annexed to an interest expressed to be to 
 the separate use of a woman. In Wright v. Wright (2 J. & H. 647) it 
 was decided that if a woman while unmarried consumed or converted 
 the property into securities inconsistent with the principles which 
 govern ordinary investments of trust money, the separate use, and with 
 it the restraint upon anticipation, was at an end. In this case there 
 
106 REMOVAL OF RESTRAINT ON ANTICIPATION. 
 
 were no trustees. Where there are trustees a demand to pay and 
 payment of the money to her will produce the same result (ik). The 
 ground of this decision was that a contrary decision would lead to the 
 absurd consequence, that a person about to marry a lady with a hand- 
 somely furnished house, would be bound to inquire into the history 
 of every article of furniture, and of the money with which every 
 table and chair was purchased ; and if it should turn out that 
 any article of furniture had been purchased with money produced 
 by the sale of property settled to her separate use, the husband 
 must, in the event of his marrying the lady, be considered as 
 adopting the property in that state, and bound not to interfere 
 with it. 
 Its effect "When the restraint has once become effectual through marriage, 
 
 ln * a woman cannot while married assign the property so restrained 
 
 directly; nor can she do so indirectly, e.g. by election (see leading 
 case of Vardon's Trust and Hamilton v. Hamilton ([1892] 1 Ch. 396)), 
 or by the consequence of her fraud, Arnold v. Woodhams (16 Eq. 29), 
 or by her instigating a breach of trust, and so rendering her property 
 liable to be impounded, Ricketts v. Ricketts (64 L. T. 263) ; Bolton v. 
 Ourre ([1895] 1 Ch. 544) ; nor can such property be affected by seques- 
 tration orders : Hyde v. Hyde (13 P. D. 166). The only exception to 
 As to ante- this ; s m the case f ante-nuptial debts, whether under the Married 
 debts'* 1 Women's Property Act of 1870 (s. 12), Axford v. Reid (22 Q. B. D. 
 
 548) ; Sanger v. Sanger (11 Eq. 470) ; London and Provincial Bank 
 v. Bogle (7 Ch. D. 773), or under the Married Women's Property Act 
 of 1882 (ss. 13, 15) ; and such debts include debts contracted during 
 a former marriage, Jay v. Robinson (25 Q. B. D. 467), and debts of a 
 testator who devised land to her before her marriage : In re Hedgely, 
 Small v. Hedgely (34 Ch. D. 379). With regard to such debts, she is 
 a feme sole even for the purposes of the Debtor's Act (s. 5) : Robinson, 
 King & Co. v. Lynes ([1894] 2 Q. B. 577). 
 Its effect Where income is not mentioned, and (land or) money, etc., is given 
 
 on a gi o ^ Q kg,. se p ara te use without power of anticipation, the better opinion is 
 that restraint attaches to the sum and the income thereof during cover- 
 ture, whether the sum is reversionary, In re Tippetfs and NewbouWs 
 Contract (37 Ch. D. 444), or not, In re Orey's Settlement, Acason v. 
 Greenwood (34 Ch. D. 712) ; In re Carrey, Gibson v. Way (32 Ch. D. 
 361), unless there is a clause directing payment of the sum to her, or 
 authorizing her to give a receipt therefor, as in In re Grey's Settlement, 
 Acason v. Greenwood (34 Ch. D. 712) ; In re Bown, O'Halloran v. 
 King (27 Ch. D. 411) ; In re Homes, Hallowes v. Homes (67 L. T. 
 335) ; and Munt v. Qlynes (41 L. J. Ch. 639) (decided on another 
 point). Where the property is reversionary the restraint will attach 
 in any case to the property while reversionary : In re Bown (ubi 
 supra) ; In re Spencer, Thomas v. Spencer (30 Ch. D. 183). 
 Its effect its e ff ec t is to restrain the alienation of income until it is due: 
 
 when due it is (though unpaid) free separate property: see Hood 
 Barrs v. Heriot (ubi supra), and cases cited on p. 101. 
 
 on income. 
 
REMOVAL OF RESTRAINT ON ANTICIPATION. 107 
 
 That "invention of the Chancellors," known as restraint on an- 
 ticipation, asserts inalienability as the policy of the law. But there 
 is another invention of the Chancellors, known as the rule against 
 perpetuities, which embodies an opposite policy. What happens 
 when these two inventions clash? It has been held with more 
 unanimity than logic that the second policy prevails over the first, 
 and that the restraint on anticipation is as void as any settlement 
 would be if it is imposed for a period exceeding lives in being and 
 twenty-one years, and the period for gestation, if such exists: In re 
 Teagues' Settlement (10 Eq. 564); In re Cunynghame's Settlement 
 (11 Eq. 324) ; In re Michael's Trusts (46 L. J. Ch. 651) ; In re Ridley, 
 Buckton v. Huy (11 Ch. D. 645). Herbert v. Watson (15 Ch. D. 610) 
 is consistent with these cases, for the rule against perpetuities is as 
 inapplicable to the settlement as to a restraint against anticipation of 
 a share which is ascertainable at a testator's death: In re Russell, 
 Dorrell v. Dorrell ([1895] 2 Ch. 698). 
 
 If for the purpose of the rule against perpetuities a restraint on 
 anticipation is regarded in the same light as a settlement, why should 
 not this be the case with regard to the Settled Land Acts ? But, as 
 we shall see, a restraint on anticipation is not of itself a settlement, 
 though under the language of s. 58 (ix.) the same effect is produced 
 as though it was a settlement : Bates v. Kesterton ([1896] 1 Ch. 159) ; 
 In re Pocock and Prankerd's Contract ([1896] 1 Ch. 302) ; see infra, 
 Settled Land^Act, p. 117. 
 
 The principle on which this Court acts in removing restraint is 
 thus stated in the leading case : — 
 
 "All that the Conveyancing Act authorizes the Court to do is, 
 notwithstanding a restraint on anticipation, to bind by an order a 
 disposition of a married woman — that is, if a married woman has 
 made a disposition which the Court thinks for her benefit, the Court 
 makes that particular disposition binding ; but the Act did not give 
 the Court power generally to remove the restraint. The Court has, 
 no doubt, in certain cases allowed funds to be parted with on the 
 ground of a woman being past child-bearing, but in those cases 
 security had been given for the property to be refunded, if necessary. 
 Latterly, the Court has discouraged that sort of arrangement. The 
 Court would be setting a bad example if, in a case like this, it were 
 to sanction any disposition by a married woman which would defeat 
 the interests of any children who might be born.'' 
 
 The restraint was removed in Musgrave v. Sandeman (48 L. T. 
 215) and In re Currey (32 Ch. D. 361), which scarcely get beyond 
 the old principle of Wilton v. Hill (ubi supra); in Sedgwick v- 
 Thomas (48 L. T. 100), for the purposes of the costs of an action to 
 rectify an instrument, she having undertaken to pay the costs ; in In 
 re Milner's Settlement ([1891] 3 Ch. 547), for the purpose of paying 
 interest on a mortgage and premiums on a policy in which she was 
 interested : compare In re Little's Will, In re Harrison (36 Ch. D. 
 701) ; in Ex parte Tfiompson ([1884] W. N. 28), in order to enable 
 
 Perpetui- 
 ties. 
 
 Settled 
 Land Act. 
 
 Principle 
 on which 
 the Court 
 acts. 
 
 Cases 
 where 
 applied. 
 
Cases 
 where not 
 applied. 
 
 Practice. 
 
 108 LIMITED OWNERS — EQUITABLE WASTE. 
 
 a. married woman living apart from her husband to carry on her 
 .business ; and in Hodges v. Hodges (20 Ch. D. 749) for payment of 
 debts, but the reason given is inconsistent with Ex parte Gilchrist 
 (17 Q. B. D. 521); and in In re C's Settlement (56 L. J. Ch. 556) 
 for payment of the husband's debts guaranteed by her. 
 
 It has been refused in the case of a married woman releasing a 
 power for her own benefit and then applying for removal of the 
 restraint, see- In re Little, Harrison v. Harrison (40 Ch.- D. 418). 
 In this case reliance was placed on a case disapproved of in In re 
 JRadcliffe ([1892] 1 Ch. 227); compare In re Somes ([1896] 1 Ch. 
 250). In In re Jordan, Kino v. Picard (34 W. E. 270), the Court 
 refused to remove a restraint on the ground that such removal might 
 forfeit her estate under one of the provisions of the will imposing the 
 restraint. In In re S.'s Settlement ([1893] W. N. 127) the application 
 was made for the purpose of paying the husband's debts and was 
 refused. Compare In re Pollard's Settlement ([1896] 1 Ch. 901) ; In 
 re P.'s Settlement (12 T. L. E. 322). 
 
 Application to the Court is by summons at Chambers (s. 69 (3)). 
 Separate examination of the married woman is unnecessary : Hodges v. 
 Hodges (ubi supra) ; but see Musgrave v. Sandeman (ubi supra). 
 The question of costs is discussed under the immediately preceding 
 leading case (p. 101). 
 
 Limited Owners — Equitable, Waste. 
 
 Principle. 
 
 Summan 
 of facts. 
 
 BAKER v. SEBRIGHT. 
 
 (13 Ch. D. 179.) 
 
 The principle upon tvhich the Court interferes with 
 a limited owner, in respect of equitable waste, is that 
 he is "using his powers unfairly," "making an 
 unconscientious use of his powers." 
 
 Sir John G. Sebright, the equitable tenant for life 
 without impeachment of waste of the Beechwood Estate, 
 had cut down a large amount of ornamental timber and 
 applied the proceeds to his own use. It appeared that 
 all the trees so cut were injurious to or impeded the 
 growth of other adjoining trees, which were of essential 
 
LIMITED OWNERS — EQUITABLE WASTE. 109 
 
 importance for ornament or shelter. It . was held that 
 Sir J. Sebright was entitled to retain the proceeds of 
 the timber cut. 
 
 The grounds upon which the Court of Equity interferes to prevent a Equitable 
 tenant for life unimpeachable for waste from committing " equitable waste by 
 waste " are very clearly and fully stated by Sir George Jessel in his ,. f . 
 judgment in the leading case (13 Ch. D. pp. 184, 186). Courts of peachable 
 Equity restrained a legal tenant for life unimpeachable for waste from for waste. 
 committing those kinds of waste which are called equitable waste on 
 the ground that where the testator (or settlor) gave those powers to the 
 tenant for life, he intended them to be used fairly. Accordingly the 
 tenant for life was restrained, because, though he had legal powers, 
 " he was not using them fairly, he was abusing them so as to destroy 
 the subject of the settlement." Thus in the case of Taney. Lord 
 Barnard (2 Vernon, 738), it was unconscientious in the tenant for 
 life to take the roof off Raby Castle to spite the remainderman ; 
 and it is equally unconscientious in a tenant for life to cut down 
 ornamental timber so as to destroy the amenity or beauty of an 
 estate. The Court cannot determine what is ornamental timber, that 
 being merely a matter of taste ; and what was planted for ornament 
 must be considered as ornamental: Lord Mahon v. Lord Stanhope 
 (3 Madd. 523, n.) ; Coffin v. Coffin (Jac. 70). In the present case the 
 Court considered that the tenant for life was entitled to the proceeds 
 of the timber, as he had only done what the settlor would have done 
 or the Court itself would have ordered to be done. The intention of 
 the testator was that not all the ornamental timber but as much of it 
 as possible should be preserved consistently with allowing the natural 
 growth of the trees so far as they would not destroy one another. No 
 Court of Equity or any other Court could control the operations of 
 nature, and therefore the Court could not say that the whole of the 
 ornamental timber should be preserved when the trees were growing 
 so thickly as to destroy one another, but what it could do and what it 
 does do, is to preserve it as far as possible. 
 
 Two cautions must be added. No tenant for life may cut down 
 ornamental timber simply because it is decaying, although the Court 
 if applied to might order that to be done. And if the remainderman 
 comes to the Court before the tenant for life has cut any ornamental 
 timber he is entitled to an injunction, on the ground that the Court 
 interferes to prevent irremediable mischief, and will only allow the 
 tenant for life to cut under its direction and supervision as in other 
 cases of administration : Baker v. Sebright, pp. 185, 188). 
 
 The doctrine of equitable waste was spoken of by Lord Justice 
 Turner in Mieklethwait v. Micklethwait (1 De G. & J. 504, 524), cited in 
 the leading case, as " an encroachment " on the legal rights of the tenant 
 for life, but in the leading case it is more appropriately spoken of as 
 an interference. "I do not," said Sir George Jessel, "admire that 
 
1L0 LIMITED OWNERS — EQUITABLE WASTE. 
 
 Judicature 
 Act, 1873. 
 
 Legal 
 waste by 
 tenant for 
 life with- 
 out im- 
 peachment 
 for waste. 
 Minerals, 
 etc. 
 
 Legal 
 waste by 
 tenant for 
 life im- 
 peachable 
 for waste. 
 
 Timber. 
 
 term ' encroachment,' because almost all the doctrines of Equity were 
 interference with a legal right, and that term is rather a term of 
 opprobrium when it ought to be a term of praise. The interference 
 of Courts of Equity with legal rights was for the improvement of the 
 law and the furtherance of justice, and therefore to say that a doctrine 
 of Equity is an 'encroachment' on a legal right is simply to censure 
 the whole doctrine of Equity." 
 
 Sect. 25 of the Judicature Act, 1873, snb.-sect. 3, which provides 
 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 description known as equitable waste, 
 unless an intention to confer such right shall expressly appear by the 
 instrument creating such estate," has not altered the above-mentioned 
 provisions. 
 
 In In re Harrington, Oamlen v. Lyon (33 Ch. D. 523, 527), Kay, J., 
 citing Bagot v. Bagot (32 Beav. 509 ; 33 L. J. Ch. 122, n.), asserted 
 that the law as to timber and minerals was identical (p. 527), 
 and that " the same law applies if the timber be severed by the 
 act of G-od as by tempest or by a trespasser," or, he might have 
 added, by a tenant for life — so far as the respective rights of 
 tenant for life and remainderman are concerned. In the case before 
 him minerals were devised to two successive life tenants without 
 impeachment of waste. During part of each life a trespasser had 
 worked the minerals, and had subsequently paid compensation for his 
 wrongful act. It was held that the compensation moneys belonged to 
 the estate of each life tenant in proportion to the value of the mineral 
 abstracted in each respective life. Further, a railway company 
 restrained a lessee from working minerals underneath their railway, 
 and paid compensation under sect. 74 of the Lands' Clauses Consolida- 
 tion Act, 1845. The then tenant for life was entitled to that part 
 of the compensation which was payable to the reversioner as the 
 minerals in question could have been worked out during his life. He 
 would not have been so entitled if the money had exceeded £200, and 
 had been paid in under sect. 69 of the Act : In re Bohinson's Settlement 
 Trusts ([1891] 3 Ch. 129). 
 
 Limited owners impeachable for waste may cut down and sell any 
 trees which are not timber, as long as they do not destroy " germins " 
 or " stools of underwood," or trees planted to protect banks, and the 
 like. Yet in an exceptional case, where a gale swept away whole 
 plantations of larch trees (which are not timber, and do not grow from 
 an old " stool "), the Court settled the proceeds of sale : In re Harrison, 
 Harrison v. Harrison (28 Ch. D. 220; see order, p. 230). They may 
 not cut down and sell "timber," except as authorized by the Settled 
 Land Act (see Note). Oak, ash, and elm are timber by the general 
 law of England, and by local custom beech, birch, hornbeam, black- 
 thorn, or whitethorn may be timber. But how about timber trees too 
 young to provide timber ? (The age is usually fixed at twenty years, 
 but varies with local custom.) It is well-established law that the 
 
LIMITED OWNERS — EQUITABLE WASTE. Ill 
 
 tenant for life may cut down infant timber (if it may be so called) if 
 this course is necessary to allow the growth of other timber in the 
 same plantation ; but it was decided for the first time in Honywood v. 
 Eonywood (18 Eq. 306) that if he does, he can appropriate the 
 proceeds. Sir G. Jessel laid down the law as regards " timber " (by 
 which he meant timber other than infant timber) as follows : — Timber 
 cut down " either by the tenant for life or anybody else, or blown 
 down by a storm, belongs at law to the owner of the first vested estate 
 in inheritance," and it belongs to him, of course, as personalty : In re 
 Ainslie (30 Ch. D. 485). " But if tenant for life and remainderman 
 are in collusion (or the same person), equity will prevent the rights of 
 a mesne life-tenant or termor from being prejudiced thereby : Birch- 
 Wolfe v. Birch (9 Eq. 683). Again, decaying timber can only be cut 
 by permission of the Court, and the Court will settle the proceeds : 
 Phillips v. Barlow (14 Si. 263). A third exception, which occurred 
 in Lowndes v. Norton (6 Ch. D. 139), was not referred to by Sir G. 
 Jessel. In that case the proceeds of timber cut down by the tenant 
 for life impeachable for waste were paid into Court. As the Court 
 approved of the cutting down, the fund was settled, and since, as in 
 Phillips v. Barlow, the first tenant for life in remainder was without 
 impeachment for waste, he and not the ultimate remainderman was 
 entitled to it wben his estate fell into possession. 
 
 But the whole law as to timber, was, according to Jessel, M.B., Timber 
 subject to an exception, which he described thus : — " Once arrive estat es. 
 at the fact of what is timber, the tenant for life impeachable for 
 waste cannot cut it down. That I take to be the clear law with 
 one single exception, ' which has been established principally by 
 modern authorities in favour of the owners of timber estates — that 
 is, estates which are cultivated merely for the produce of saleable 
 timber, and where the timber is cut periodically. The reason 
 of the distinction is this, that as cutting the timber is the mode of 
 cultivation, the timber is not to be kept as part of the inheritance, 
 but part so to say of the annual fruits of the land, and in these cases 
 the same kind of cultivation may be carried on by the tenant for life 
 that has been carried on by the settlor on the estate, and the timber 
 so cut down periodically in due course is looked upon as the annual 
 profits of the estate, and therefore goes to the tenant for life. With 
 that exception, I take it a tenant for life cannot cut timber.'' 
 
 This exception has its source in ancient Roman Law, and through 
 ecclesiastical law (the distinction of timber and non-timber trees was 
 first established in cases relating to tithes) has filtered into English 
 law. But there is no conspicuous case in which the existence of 
 timber estates has been recognized, until the Court of Appeal decided 
 the case of Dashwood v. Magniac ([1891] 3 Ch. 306). In that case it 
 was proved that beech was timber by local custom, and that it was 
 the usage of the estate in question, and of the neighbouring estates, 
 for over sixty years, to thin the beech woods periodically, and to 
 cut the larger in order that the smaller beech might grow. Lady 
 
112 LIMITED OWNERS— EQUITABLE WASTE. 
 
 Dashwood, the tenant for life impeachable for waste, had derived 
 a large income from this practice. The attempt to make her estate 
 refund this income after her death failed. The question in this case 
 was complicated by the fact that the timber which she cut and sold 
 was not exclusively beech. But in their decision the Lord Justices 
 treated beech and other timber alike. Bowen, L. J., found a parallel 
 for " timber estates " in the " mineral estates " referred to in Campbell 
 v. Wardlaw (8 App. Cas. 641, 650). He urged that when a testator 
 granted the annual produce of his estate to a tenant for life, he had in 
 mind " the well-known course of arboriculture which a testator might 
 well consider necessary in his own woods, and assume would be 
 continued there in the absence of directions to the contrary. . . . 
 The instance to which the legal principle is now for the first time 
 adopted by this Court may be new, but the principle is old and 
 sound; and the English law is exhaustive, and will apply old 
 principles, if need requires it, to new contingencies. ... In a case 
 like the present, good sense borrows the doctrine which has hitherto 
 found its most remarkable illustration in the instance of the open 
 mine, and applies it to the more novel case of a timber-plantation 
 which is cultivated for periodical croppings, and which forms a 
 substantial item of yearly revenue to the owner of the property. . . . 
 The case of the open mine is not an anomalous paradox, which is to be 
 found crystallized and embedded in the law of real property, but only 
 an illustration of the mode in which the law gives a reasonable effect 
 to the language of a grant, even though the result is to allow the 
 ' inheritance to be consumed by a limited owner ' : " Dashwood v. 
 Magniac ([1891] 3 Ch. 306, 360, 367). 
 Mines, The right referred to by Bowen, L.J., with regard to opening mines 
 
 quarries, wa s defined thus by Lord Blackburn : " Where at the time when the 
 pits, etc. p erson having a limited interest comes into possession mines have 
 been already opened, whether coal-pits or quarrfes or the like, the 
 person who has that limited interest shall be at liberty to continue to 
 work those coal-pits or quarries which have been already opened : " 
 Campbell v. Wardlaw (8 App. Cas. 641, 645). If, however, it is 
 shown that the coalpits or quarries were opened illegally, a limited owner 
 would not be authorized to continue to work them. See Ecclesiastical 
 Commissioners v. Wodehouse ([1895] 1 Ch. 552), a case which decided 
 that an incumbent is in the same position as a tenant for life im-' 
 peachable for waste — except where his disability is removed by the 
 Ecclesiastical Commissioners under their statutory powers. And this 
 right was illustrated by the case of Elias v. Snowdon Slate Quarries Co. 
 (4 App. Cas. 454). There A. B. mortgaged his estate to C. D. for a 
 term of years; then opened quarries not merely for purposes of " home 
 consumption ; '' then granted quarries to a lessee for " commercial " 
 purposes. Afterwards the mortgagee foreclosed and entered into 
 possession. It was held that C. D. could work any quarry on the 
 estate in the same sort of way as A. B. or his lessee had done at any 
 date previous, not to the mortgage, but to the foreclosure. 
 
LIMITED OWNERS — EQUITABLE WASTE. 113 
 
 -The subject of ameliorating waste— that is, waste which so far from Ameliorat- 
 doing injury to the inheritance improves the inheritance — was con- ' in S waste, 
 sidered in Doherty v. All-man (3 App. Cas. 709). There a lessee 
 considered that it would be beneficial to convert certain store buildings 
 which had fallen into disrepair into dwelling-houses, which would 
 much increase their value, and was proceeding to so convert them. 
 The lessor commenced proceedings to restrain him, alleging waste, but 
 the Court declined to interfere by injunction. And see Meux v. Cdbley 
 ([1892] 2 Ch. 253) and Agricultural Holdings Act, 1883 (46 & 47 Vict, 
 c. 61, s. 42). For contribution between joint tenants, see post, p. 124. 
 
 A remainderman has no remedy against a tenant for life who Permissive 
 commits permissive waste, which means that he suffers buildings to waste, 
 decay, or in any way diminishes the value of the inheritance by 
 neglect: In re Courtier, Coles v. Courtier (34 Ch. D. 136); In re 
 Cartwright, Avis v. Newman (41 Ch. D. 532) ; Dashwood v. Magnaic 
 ([1891] 3 Ch. 306, 335-339); In re Baring, Jeune v. Baring ([1893] 
 1 Ch. 61). But if a devise is expressed to be subject to an obliga- 
 tion to repair, an action in tort can be maintained by the owner in 
 fee of the immediate reversion ; and " the proper measure of damages 
 is the sum which is reasonably necessary to put the premises in the 
 state of repair in which the tenant for life ought to have left them : " 
 Woodhouse v. Walker (5 Q. B. D. 404, 408). Torts founded on some 
 duty to be performed do not die with the person : Batthyany v. 
 Walford (36 Ch. D. 269, 279). For measure of damages, compare 
 Whitharn v. Kershaw (16 Q. B. D. 613). Compare Ebbetts v. Conquest 
 ([1895] 2 Ch. 377) In Conway v. Fenton (40 Ch. D. 512), where 
 tenants for life in possession committed permissive waste, and the 
 remainderman lived with them and was an infant, and there was a 
 trust for sale, the Court allowed capital moneys held on the same 
 trusts as the realty to be devoted to repairs ; but this course would 
 not be adopted where these conditions did not concur : In re De 
 Teissier's Settled Estates ([1893] 1 Ch. 153). Compare In re Fowler, 
 cited post, p. 332. 
 
 Note. 
 
 Sect. 29 of the Settled Land Act, 1882, authorizes tenants for life 
 within the meaning of the Act to get and work freestone, limestone, 
 and clay, and to " cut down and use timber and other trees not planted 
 or left standing for shelter or ornament," in order to execute and repair 
 improvements authorized by the Act. 
 
 Trial-pits and " planting " (which is no longer confined, as in the 
 Settled Estates Act, 1877, to planting for shelter) are enumerated among 
 the authorized improvements to which capital trust money may be 
 applied under sect. 25, while sect. 28 (sub-sect. 2) declares " that the 
 tenant for life or any of his successors as aforesaid shall not cut down 
 or knowingly permit to be cut down, except in proper thinning, any 
 trees planted as an improvement under the foregoing provisions of this 
 
114 LIMITED OWNERS — THE SETTLED LAND ACTS. 
 
 Act." Compare, where the consent of the Board of Agriculture is 
 obtained, Improvement of Land Act, 1864 (27 & 28 Vict. c. 114, s. 34), 
 and, where infants are entitled, sect. 42 of the Conveyancing Act, 1881, 
 and s. 59 of the S. L. A., 1882. 
 
 Sect. 35 of the S. L. A., 1882, provides :— 
 
 " (1) Where a tenant for life is impeachable for waste in respect of 
 timber, and there is on the settled land timber ripe and fit for cutting, 
 the tenant for life, on obtaining the consent of the trustees of the settle- 
 ment or an Order of the Court, may cut and sell that timber, or any 
 part thereof. 
 
 " (2) Three-fourth parts of the net proceeds of the sale shall be set 
 aside as and be capital money arising under this Act, and the other 
 fourth part shall go as rents and profits." And see post, p. 120, and 
 cases on these sections referred to in The Conveyancing and Settled 
 Land Acts, etc., by E. P. Wolstenholme and W. Brinton, 7th ed. 
 
 Limited Owners — The Settled Land Acts. 
 
 In re JONES. 
 (26 Ch. D. 736.) 
 
 Principle. The person entitled to receive the income of settled 
 
 land is tenant for life within the meaning of the 
 Settled Land Act, 1882, though he derives no income 
 from the estate. 
 
 Summary Colonel Grey was entitled to the surplus income of 
 settled land after payment of the interest on incum- 
 brances and an annuity. The rents, after payment of 
 the interest, were insufficient to pay the annuity, and 
 there was no probability that there would be any income 
 for Colonel Grey to receive for many years to come. 
 Held, by the Court of Appeal (affirming the decision of 
 Bacon, V.C.), that Colonel Grey was entitled to exercise 
 the powers of a tenant for life. 
 
LIMITED OWNERB—THE SETTLED LAND ACTS. 115 
 
 This case has been selected as affording a good illustration of the 
 sweeping changes effected by the Settled Land Act, 1882, which came 
 into operation on the 1st January, 1883. The Court was compelled 
 in the leading case by the wording of the Act to give judicial sanction 
 to " the startling paradox," as Lord Justice Lindley termed it, " that 
 a man could be entitled to income of land, though there was no income 
 for him to receive ; " and no prospect of his receiving any income for 
 a considerable time. " You must," said Baggallay, L. J., " look at 
 the terms of the settlement to see what the person is entitled to, and 
 not to the accidental circumstance that the intention of the testator 
 has been to some extent defeated by reason of the income which he 
 intended the party to take not being actually realized in consequence 
 ■of the state of the property." Williams v. Jenkins ([1893] 1 Oh. 700) 
 illustrates the same principle, although the sub-section upon which it 
 was decided was not mentioned in In re Jones, and that upon which 
 In re Jones was decided was not mentioned in Williams v. Jenkins. 
 
 The general object of the Settled Land Act, as described in Cardigan Object of 
 v. Curzon-Howe (30 Ch. D. 536), " was to confer upon the present these Acts - 
 generation of landowners the means of alienation which they had 
 become deprived of in the process of time by the ingenuity of con- 
 veyancers," and as described in In re Clitheroe Estate (28 Ch. D. 378, 
 affirmed 31 Ch. D. 135) "to enable tenants for life of settled land to 
 sell, partition, lease and otherwise dispose of settled land freed from 
 the restrictions which by the general law previously existing, and by 
 the numerous statutes applicable to the subject, had up to the time of 
 passing the Act prevented tenants for life from so dealing with settled 
 land." In Bruce v. Marquis of Ailesbury ([1892] A. C. 356), Lord 
 Macnagbten contrasted this Act with the Settled Estates Acts, 1877, 
 etc., and said, " In those Acts the legislature did not look beyond the 
 interests of the persons entitled under the settlement. In the Settled 
 Land Act the paramount object of the legislature was the well-being 
 of settled land" (p. 365), and Lord Halsbury described it as an In- 
 cumbered Estates Act, and something more (p. 362). The Court of 
 Appeal had laid down the same principles even more emphatically 
 ([1892] 1 Ch. 544, 545). 
 
 The Act of 1882 and Settled Land Acts, 1884, 1887, 1889, and 1890, sketch of 
 confer on the tenant for life powers of sale, enfranchisement, exchange, their 
 partition (ss. 3 to 5; S.L.A.,1890, s. 5) (compare 55 & 56 Vict. c. contents. 
 31, s. 13), powers of leasing for twenty-one years, or in the case of Powers of 
 mining and building leases for sixty and ninety-nine years respectively ,. e ? an 01 
 <ss. 6 to 12 ; S. L. A., 1889, s.2; S. L. A., 1890, ss. 7 to 9) of accepting settled" 
 ■surrenders and granting licences for leasing (ss. 13, 14). His power land, 
 to contract and convey for these purposes is regulated by ss. 20, 31, 
 55, (2) ; S. L. A., 1890, s. 6, and ancillary powers are contained in ss. 
 16, 17, 19, and in 53 & 54 Vict. c. 38, s. 74(a) ; 55 & 56 Vict. c. 31, s. 
 12. For the purpose of enfranchisement, exchange, or partition (s. 18), 
 or paying off incumbrances (S. L. A., 1890, s. 11), he may mortgage 
 the land. His power to direct investments of capital moneys paid to 
 
116 LIMITED OWNERS — THE SETTLED LAND AGTSl 
 
 Definitions. 
 
 Settle- 
 ment. 
 
 Settled 
 land. 
 
 Tenant 
 for life. 
 
 the trustees or into Court under these provisions is limited by ss. 21 
 to 30, 34; S. L. A., 1887, ss. 1, 2 ; S. L. A., 1890, ss. 13, 15, 18; 4S 
 & 47 Vict. c. 61, & 29 ; 53 & 54 Vict, c . 70, s. 74 '(6). Compare ss. 32' 
 and 33, and S. L. A. 1890, s. 14. The limitations of a settlement are 
 detached from the land sold and attached to the proceeds of sale or land 
 bought or received in exchange (s. 22 (5), (6) ; s. 24). 
 
 It is important to bear in mind in reading, the S. L. Acts that" 
 several terms which constantly occur in them have an artificial 
 meaning. 
 
 The definition of the term " settlement " in sect. 2, sub-sect. 1, is- 
 expressly retrospective, and includes, in addition to deeds, wills and) 
 agreements for settlement, all the various instruments there enumer- 
 ated, or any number of instruments by which " any land, or estate or 
 interest in land, stands for the time being limited to or in trust for any 
 persons by way of succession," to which estates and interests sub-sect. 
 2 adds : " An estate or interest in remainder or reversion not disposed 
 of by a settlement, and reverting to the settlor or descending to the 1 
 testator's heir ; " and sect. 8 of the S. L. A., 1884 (47 & 48 Vict. c. 
 18), adds a tenancy by the curtsey, and see sect. 4 of the S. L. A., 1890' 
 (53 & 54 Vict. c. 69). As to documents which together form one- 
 settlement, see In re Marquis of Aileshury and Lord Iveagh ([1893] 2 
 Ch. 345) (four deeds) ; In re Mundy's S. E. ([1891] 1 Ch. 399) ; In 
 re Byng's S. E. ([1892] 2 Ch. 219) (deed and will) ; In re Lord 
 Stamford's S. E. (43 Ch. D. 84) ; In re Freme Freme v. Logan 
 ([1894] 1 Ch. 1) (different provisions) ; Ex parte Vicar of Castle- 
 Betham, etc. ([1895] 1 Ch. 348) (award, and Lands' Clauses Act) ; 
 Vine v. Raleigh ([1896] 1 Ch. 37) (Thellusson's Act, and will). 
 Derivative settlements of interests not yet in possession are disregarded r. 
 In re Knowles' S. E. (27 Ch. D. 707). 
 
 Land, and any estate or interest therein, which is the subject of a 
 settlement, is, for the purposes of this Act, "settled land," and is, in 
 relation to the settlement, referred to in this Act as the settled land,, 
 and in sect. 2, sub-sect. 4, the question whether land is " settled 
 land " is to be determined by the state of facts, etc., when the settle- 
 ment takes effect. " Land " includes leases for years, remainders, re- 
 versions, rent-charges, tithes, advowsons, titles of honour, In re Sir 
 J. Mivett-Carnac's Will (30 Ch. D. 136), New Biver shares, River 
 Avon shares, Kiver Don shares, and shares of tolls in lighthouses r 
 Attorney- General v. Jones (1 Mac. & G. 574); but most of the pro- 
 visions in the Act apply only to corporeal hereditaments : Clerke's- 
 Settled Land Act, 2nd ed. p. 5. 
 
 Sect. 2, sub-sect. 5, defines "tenant for life" to mean "the person 
 who is for the time being beneficially entitled to possession of settled! 
 land for his life : " see leading case, In re Strangways (34 Ch. D. 423), 
 and In re Bagot's S. ([1894] 1 Ch. 177); and under sub-sect. 6, where 
 persons so entitled are joint tenants, tenants in common or otherwise 
 concurrently entitled, they are together " tenant for life." A jointress- 
 is not, In re Marquis of Aileshury and Lord Iveagh ([1893] 2 Ch. 
 
LIMITED OWNERS — TEE SETTLED LAND ACTS. 117 
 
 345), and persons alternatively entitled under a discretionary trust for 
 one of them, In re Atkinson, Atkinson v. Bruce (31 Ch. D. 57V), are 
 not concurrent owners. Of two concurrent owners who constitute 
 tenant for life, one may have an estate for life and the other an estate 
 in fee simple : In re Collinge's S. E. (36 Ch. D. 516). In a case under 
 this sub-section more than one set of costs was allowed in Smith v. 
 Lancaster ([1894] 3 Ch. 439). 
 
 In addition to this, sect. 58 of the Act enumerates no less than nine 
 other limited owners who, when their estate is in possession, are to 
 possess the powers of a tenant for life. 
 
 A married woman under sect. 61 may only act as tenant for life, if 
 entitled for her separate use (whether restrained or not from anticipa- 
 tion), or if entitled as feme sole by statute. Otherwise she and her 
 husband are together " tenant for life" of her property. A limitation 
 to her separate use without power of anticipation absolutely, does not 
 ■constitute "a settlement" within the meaning of sect. 2, Hates v. 
 Kesterton ([1896] 1 Ch. 159), but does within the meaning of sect. 
 .58 (2) : In re Pocock and Prankerd's Contract ([1896] 1 Ch. 302). 
 ■Under sect. 62 a committee or other legal custodian of a lunatic may 
 -act for the lunatic as " tenant for life'' on obtaining an order in lunacy 
 in that behalf: In re Ray's S. E. (25 Ch. D. 464) ; In re Ray ([1896] 
 1 Ch.- 468). See In re Baggs ([1894] 2 Ch. 416, n.); In re Salt 
 {[1896] 1 Ch. 117), as to sales and leases respectively of property of 
 ■a lunatic not so found. 
 
 Sect. 59 makes an infant absolutely entitled in possession to settled 
 ■land a " tenant for life." 
 
 The statutory powers of the tenant for life are under sects. 50, 51, Mode of 
 -52, incapable of assignment or release, nor can they effect a forfeiture : exerclse °» 
 In re Ames ([1893] 2 Ch. 479), and any contract not to exercise them tenant for 
 or any prohibition or limitation of their exercise is void. But assignees life, 
 for value must concur (sect. 50), including chargees and trustees in 
 •bankruptcy : In re Bedingfield and Herring's Contract ([1893] 2 Ch. 
 •332), and the tenant for life, as a rule, pays the costs of concurrence of 
 his own chargees : Cardigan v. Curzon Howe (41 Ch. D. 375). These 
 powers are moreover " cumulative," i.e. additional to any powers con- 
 ferred by a settlement, and in case of conflict with such powers the 
 statutory powers are to prevail (sects. 56, 57). See In re Duke of 
 Newcastle's Estates (24 Ch. D. 129) ; In re Sudbury and Pointon 
 Estates ([1893] 3 Ch. 74). Under sect. 56 the consent of a tenant 
 for life is necessary for the exercise by any trustee of any power 
 exerciseable for purposes of the Act, and see S. L. A., 1884, s. 6. 
 Under sect. 53 a tenant for life must exercise these powers conferred 
 ■by the Act as trustee for all parties : In re Lord Stamford's Settled 
 Estate (43 Ch. D. 84) ; In re Lord Coleridge's Settlement ([1895] 2 Ch. 
 704) (directing investment of capital moneys) ; Hampden v. Earl of 
 Buckinghamshire ([1893] 2 Ch. 531) (mortgaging) ; Dow. Duchess of 
 Sutherland v. Duke of Sutherland ([1893] 3 Ch. 169) (leasing). In the 
 iast two cases it was held that he was not acting as a trustee should act. 
 
118 LIMITED OWNERS — THE SETTLED LAND ACTS: 
 
 Definition The "trustees of the settlement" are defined by sect. 2, sub-sect. 8, 
 
 and powers f the Settled Land Act, 1882, as follows :— " The persons, if any, who 
 
 of the are ^ or ^ e t' 1116 being, under a settlement, trustees with power of sale 
 
 settle- °f settled land," with or without the consent of another, Constable v. 
 
 ment. Constable (32 Ch. D. 233), or " with power of consent to or approval 
 
 of the exercise of such a power of sale, or if under a settlement there 
 
 are no such trustees, then the persons, if any, for the time being, who- 
 
 are by the settlement declared to be trustees thereof for purposes of 
 
 this Act, are for purposes of this Act trustees of the settlement; " or 
 
 if there are no such persons, then under the Settled Land Act, 1890, 
 
 sect. 16 : — 
 
 " (i.) The persons (if any) who are for the time being under the 
 settlement trustees with power of or upon trust for sale of 
 any other land comprised in the settlement, and subject to 
 the same limitations as the land to be sold, or with power 
 of consent to, or approval of, the exercise of such a power of 
 sale, or if there be no such persons, then 
 "(ii.) The persons (if any) who are for the time being under the 
 settlement trustees with future power of sale, or under a 
 future trust for sale of the land to be sold, or with power of 
 consent to or approval of the exercise of such a future power 
 of sale, and whether the power or trust takes effect in all 
 events or not." 
 Sect. 47 (1) of the Trustee Act, 1893, enacts that " all the powers- 
 and provisions contained in this Act, with reference to the appoint- 
 ment of new trustees and the discharge and retirement of trustees, are 
 to apply to and include trustees for the purposes of the Settled Land 
 Acts, 1882 to 1890, whether appointed by the Court or by the settle- 
 ment, or under provisions contained in the settlement." And sect. 47 
 (2) makes this clause retrospective. 
 
 One month's notice must be given to the trustees of the settlement 
 of an intended exercise by the tenant for life of his powers. The 
 trustees at the date of notice must be at least two, unless a contrary 
 intention appears in the settlement (sect. 45). A generally worded 
 notice will do : S. L. A., 1884, s. 5. The trustees may waive notice 
 (ib.). Absence of notice does not affect a bona fide purchaser (sect. 45). 
 If there are no trustees the remainderman may obtain an injunction 
 against the tenant for life : Wheelwright v. Walker (23 Ch. D. 752) ; 
 but a purchaser from the lessee cannot resist, although the tenant 
 for life cannot bring against the lessee an action for specific per- 
 formance : Mogridge v. Clajip ([1892] 3 Ch. 382). In cases involving 
 payment of capital moneys (which must under sect. 22 be paid either 
 to the trustees or into Court), trustees of the settlement must exist 
 before the money is so paid : Hatten v. Russell (38 Ch. D. 334). 
 Where the tenant for life or person with powers of tenant for life is. 
 an infant the trustees of the settlement exercise these powers on behalf 
 of the infant (sect. 60). They also represent the tenant for life where: 
 otherwise he would be selling to himself: Settled Land Act, 1890, s. 12. 
 
LIMITED OWNERS — TEE SETTLED LAND ACTS. 119 
 
 The cases under which it is imperative to apply to the Court are as Powers of 
 follows :— the Court - 
 
 1. Sect. 10. To authorize building and mining leases, or grants at 
 feefarm or other rents not authorized by the Act, but usual in the 
 district or otherwise expedient. 
 
 2. Sect. 31 (3). To obtain directions as to enforcing, carrying into 
 effect, varying or rescinding contracts. 
 
 3. Sect. 36. To approve of proceedings for protection or recovery 
 of land settled or claimed to be settled, and give directions as to costs, 
 etc. : In re Earl of Aylesford's Settled Estates (32 Ch. D. 162) ; In 
 re Ormrod's Settled Estates ([1892] 2 Ch. 318). Compare s. 47. 
 
 4. Sect. 37. To sanction sale or purchase of heirlooms. As to 
 exercise of discretion, see In re Earl of Radnor's Will Trusts (45 
 Ch. D. 402); In re Houghton's Estate (30 Ch. D. 102); Bruce 'v. 
 Marquis of Ailesbury ([1892] A. C. 365 ; [1892] 1 Ch. 538). For 
 application of proceeds, see S. C. and In re Duke of Marlborough's 
 Settlement (30 Ch. D. 127). An ex post facto sanction is not authorized : 
 In re Ames ([1893] 2 Ch. 479). 
 
 5. Sect. 38. For appointment of trustees under the settlement for 
 the purposes of the Act where there are none, see Trustee Act, 1893, 
 s. 47. 
 
 6. Sect. 60. For appointment of persons to exercise powers of 
 tenant for life, etc., where he is an infant and there are no trustees 
 of the settlement ; see In re Countess of Dudley and London and 
 North-Western Railway Go. (35 Ch. D. 338), as to sales by such 
 trustees. 
 
 7. Sect. 7 of the Settled Land Act, 1884, provides that the powers 
 given by sect. 63 of the Settled Land Act, 1882, are not to be exercised 
 without the leave of the Court. See In re Home's Settled Estates 
 (39 Ch. D. 84) ; In re Harding's Estate ([1891] 1 Ch. 60) ; In re 
 Bagot's Settlement ([1894] 1 Ch. 177); and as to leases, In re 
 DanieWs S. E. ([1894] 3 Ch. 503). 
 
 8. Applications may be made to the Court where differences between 
 tenant for life and trustees arise under the Act (s. 44), and conflicts 
 occur between the provisions of the Act and of a settlement, etc. 
 (sect. 56). 
 
 The cases in which, under the Settled Land Act, there is the option Option of 
 
 of dealing with the trustees of the settlement, or going to the Court dealing 
 
 , with the 
 
 are as follows :— trustees or 
 
 1. Sect. 10 of the S. L. A., 1890, provides that, " notwithstanding going to 
 anything contained in the Act of 1882, the principal mansion house the Court, 
 (if any) on any settled land, and the pleasure grounds and parks and 
 lands (if any) usually occupied therewith, shall not be sold, exchanged, 
 or leased by the tenant for life without the consent of the trustees of 
 the settlement or an order of the Court." 
 
 " Where a house is usually occupied as a farmhouse, or where the 
 site of any house and the pleasure grounds and park and lands (if any) 
 usually occupied therewith do not together exceed tiventy-five acres in 
 
120 LIMITED OWNERS — TEE SETTLED LAND ACTS. 
 
 Practice 
 under the 
 Settled 
 Land Act, 
 1882. 
 
 extent, the house is not to be deemed a principal mansion house 
 within the meaning of the section." See In re Sebright's Settled Estates 
 (33 Ch. D. 429) ; Bruce v. The Marquis of Ailesbury (ubi supra) ; 
 Dow. Duchess of Sutherland v. Duke of Sutherland (ubi supra) (lease). 
 
 2. Under sect. 22 of the >S. L. A., 1882, as to investment and 
 application of " capital money arising under the Act," see S. L. A., 
 1890, s. 14. 
 
 3. Under sect. 26 of the S. L. A., 1882, as to approval of scheme 
 for an improvement and the expenditure of capital money thereon. 
 As to prospective orders, see In re Millard's S. E. ([1893] 3 Ch. 116). 
 As to past expenses subsequent to 1882, and where there was no 
 scheme, see S. L. A. 1890, s. 15 ; In re Ormrod's S. E. ([1892] 2 Ch. 
 318). As to payments of part instalments of a rent-charge for im- 
 provements created by the Improvement of Land Act, 1864, see S. L. A. 
 1887, s. 1 ; In re Howard's S. E. ([1892] 2 Ch. 233) ; In re Dalison's 
 S. E. ([1892] 3 Ch. 522). As to release thereof, see In re Earl of 
 Strafford and Maples ([1896] 1 Ch. 235). As to all these points, see In 
 re Marquis of Bristol's S. E. ([1893] 3 Ch. 161). As to various im- 
 provements, see In re Mundy's Estates ([1891] 1 Ch. 399); In re 
 Walker's S. E. ([1894] 1 Ch. 189) ; In re GaskelVs S. E. ([1894] 1 Ch. 
 485) ; In re De Teissier's S. E. ([1893] 1 Ch. 153) ; In re Tucker's S. E. 
 ([1895] 2 Ch. 468) ; In re Lord Gerard's S. E. ([1893] 3 Ch. 252). 
 
 4. Under sect. 34 of the S. L. A., 1882, as to application of money 
 paid for lease, etc., or reversion, and note that all decisions on sect. 
 74 of the Lands Clauses Consolidation Act, 1845, are applicable to this 
 section : Cottrell v. Cottrell (28 Ch. D. 628). 
 
 5. Under sect. 35 of the S. L. A., 1882, as to cutting and sale of 
 timber, see In re Llewellin, Llewellin v. Williams (37 Ch. D. 317), 
 and ante, p. 114. 
 
 The S. L. A., 1882, s. 46, sub-sect. 1, assigns all matters under 
 the Act and within the jurisdiction of the High Court of Justice 
 to the Chancery Division, and sub-sect. 3 of the same section 
 declares that every application to the Court shall be by petition or by 
 summons at Chambers ; but the rules under the S. L. A., 1882 
 (r. 2), provide that if in any case a petition shall be presented 
 without the direction of the Judge, no further costs shall be allowed 
 than would be allowed upon a summons. It was held, however, in 
 In re Bethlehem and Bridewell Hospitals (30 Ch. D. 541), that the 
 Court has a discretion to allow the costs of a petition when such a 
 mode of procedure is cheaper and more expeditious, but that the choice 
 of procedure is at the risk of the applicant. It may be well to point 
 out that although the Settled Land Acts, 1882 to 1890, now hold the 
 field, and the provisions of the Settled Estates Act, 1877 (40 & 41 Vict, 
 c. 18), are almost wholly superseded by them, the only section of the 
 old Act which is actually repealed by sect. 64 of the Settled Land Act, 
 1882, is sect. 17. As to the manner in which summonses under the 
 Settled Land Act, 1882, are to be entitled, see Annual Practice, 1896, 
 Part III. p. 1262. The Court has power to make any order which 
 
PARTITION OR SALE. 121 
 
 it thinks fit, and to give directions as to raising and paying costs, 
 charges, and expenses (sects. 46, 47). The latter expression includes 
 the expenses of an unsuccessful sale : In re Smith's Settled Estates 
 ([1891] 3 Ch. 65). 
 
 All proceedings in County Courts under Settled Land Acts must 
 be commenced by petition : C. C. R. 1889, 0. xxxvm., r. 1 ; Annual 
 County Court Practice, 1896, pp. 461, 478. 
 
 Sect. 3 of the Settled Estates Act, 1877, provides that all causes and Settled 
 matters commenced or continued under this Act, shall, subject to the Estates 
 provisions of the Judicature Act, be assigned to the Chancery Division, Act ' 1877 " 
 and it may still occasionally be desirable to have recourse to its pro- 
 visions. See In re Farnell's Settled Estates (33 Ch. D. 599) ; Clerke's 
 Settled Land Act, 2nd ed. p. 21. 
 
 Partition or Sale — The Court's Discretion. 
 
 PEMBERTON v. BARNES. 
 
 (L. E. 6 Ch. 685.) 
 
 Section 4 of the Partition Act, 1868, is imperative, Principle. 
 and when the parties entitled to a moiety or upwards 
 desire a sale, the Court must order it unless some good 
 reason is shown to the contrary. 
 
 The Tririg Park Estate, which formed the principal Summary 
 subject of this suit, consisted of a mansion-house of great 
 antiquity and historical interest, upwards of 3600 acres of 
 land, of which about 300 formed a park, together with 
 manorial rights extending over thirty square miles of 
 country. The plaintiffs, who were entitled to one moiety 
 of the estate, filed their bill against the trustees of the 
 estate and Dr. and Mrs. Barnes, who were entitled to the 
 other moiety, claiming a sale of the property or, in the 
 alternative, a partition. There was the uncontradicted 
 evidence of two eminent land agents that the Tring Park 
 Estate if sold as a whole would realize a much larger 
 
122 PARTITION OR SALE. 
 
 price than if sold in moieties, that it could not be satis- 
 factorily partitioned, and that if it were put in one lot a 
 " fancy price " would be obtained ; but the defendants Dr. 
 and Mrs. Barnes objected to the estate being sold in order 
 that the plaintiffs might obtain a fancy price, and denied 
 that a sale would be more beneficial than a partition. 
 
 Malins, V.O., held that the plaintiffs were not entitled 
 to a sale against the wish of the defendants, but Lord 
 Hatherley, L.C., being of opinion that no "real good 
 plain cause " had been shown against a sale, reversed the 
 decision of the Vice-Chancellor and ordered a sale, with 
 liberty to the defendants to bid. 
 
 Partition. In 1539 and 1540, power was conferred on any joint tenant or 
 tenant in common in possession of land, to compel his co-tenants to 
 partition the estate by an action commenced with writ (31 Henry 
 VIII. c. 1 ; 32 Henry VIII. c. 32). Under these Acts the termor or 
 life-tenant could not partition the estate for longer than his term or 
 life lasted ; nor could persons not parties to the partition he affected. 
 
 These Acts referred to lands corporeal and incorporeal, including, 
 leaseholds, tithes, and advowsons : Bodicoate v. Steers (1 Dick. 69), 
 but excluding copyholds, and (according to Lord Coke) castles. The 
 exclusion of copyholds was removed in 1841 (4 & 5 Vict. c. 35, 
 s. 85) ; and it may perhaps be suggested that Lord Coke's reason for 
 excluding castles — that they are necessary to the defence of the realm 
 (I. Inst. 164, V) — is not quite so cogent as heretofore. Long before 
 1833 the Chancery Court had successfully substituted a Chancery 
 suit for the older procedure ; successfully because a suit was " much 
 more convenient " than the old actions : per Lord Loughborough, L.C.,. 
 Calmady v. Calmady (2 Ves. junr. 570) ; and the effect of 3 & 4 
 Will. IV. c. 27, s. 36, was to give the Chancery Court a monopoly 
 of partition suits, a monopoly which is now assigned to actions in the- 
 Chancery Division by sect. 34 (3) of the Judicature Act, 1873. 
 Yet even Chancery suits had some inconveniences, as when Lord Hard- 
 wicke partitioned a cold bath, Warner v. Baynes (Amb. 589) ; or as 
 in the case mentioned in the argument in Turner v. Morgan (8 Vesey,, 
 143), where the partition of a house was carried into effect by build- 
 ing up a wall in the middle ; or as in Turner v. Morgan itself (ubi 
 supra), where defendant objected on the ground that the Commis- 
 sioners had allotted to the plaintiff the whole stack of chimneys, all 
 the fire-places, the only staircase, and all the conveniences in the 
 yard, and Lord Eldon at once overruled the objection. He had, he- 
 said, no doubt what was to be done. 
 
THE COURTS DISCRETION. 123 
 
 The old rights conferred by the statutes of Henry VIII. are still in Sale 
 force, and were applied by North, J., when in May fair Property Co. generally, 
 v. Johnston ([1894] 1 Ch. 508) he partitioned a garden wall longi- 
 tudinally. But the new remedy of sale has, been tacked on to the 
 old remedy of partition by the Partition Acts of 1868 (31 & 32 Vict, 
 c. 40) and 1876 (39 & 40 Vict. c. 17). 
 
 The parties to the action and the right of bringing an action are the 
 same in the case of partition and sale. Consequently a tenant in 
 common in reversion cannot bring an action for sale or for partition : 
 Evans v. Bagshaw (L. E. 5 Ch. 340). Where a sale is asked for, 
 partition may be ordered, and vice versa, under the Act of 1876, sect. 
 7. And the order may be for partition of one part and sale of another 
 part of the property : Roebuck v. Chadebet (8 Eq. 127). 
 
 Sale is not necessarily alternative to partition. , Thus where a sum 
 is paid for equality of partition " that is not partition pure and 
 simple, but is 1 partition plus sale :" per Sir G. Jesse], M.E., Porter v. 
 Lopes (7 Ch. D. 358, 366). But where it is alternative, the power to 
 order sale is limited to three cases, in each of which the Court exer- 
 cises a different kind of discretion.- 
 
 Adopting Lord Blackburn's order, see Pitt v. Jones (5 App. Cas. Sect. 5>"of 
 659), we will first consider the power of sale in sect. 5. This power the Act °f 
 enables the Court to order a sale on application by an interested ' 
 
 party, even though there is no reason for preferring a sale to a parti- 
 tion. The sale, however, will not take place if any other interested 
 party " undertakes" to buy the share of the applicant, and the appli- 
 cant agrees to sell it at a valuation. 
 
 Nor will the sale take place if after the " undertaking " the appli- 
 cant refuses to sell, because such refusal to sell is regarded as a 
 withdrawal of the original " application : " Williams v. Games (L. B. 
 10 Ch. 204) ; Drinkwater v. Ratcliffe (20 Eq. 528, 531) ; Gilbert v. 
 Smith (11 Ch. D. 78), S.C. nom., Pitt v. Jones (5 App. Cas. 651). 
 An application for a sale under sect. 5 was made and refused in 
 Richardson v. Feary (39 Ch. D. 45). 
 
 Secondly, there is a power of sale under sect. 4 of the Act of 1868. Sect. 4 of 
 Where parties interested in one-half or more of the property request the Act °f 
 a sale, " the Court shall, unless it sees good reason to the contrary, 
 direct a sale." The order is imperative, and will not he stayed by 
 undertakings or acceptance or rejection of undertakings to buy the 
 share of applicants at a valuation. (Some remarks of Lord Hatherley 
 to this effect in the leading case were overruled by the above-cited 
 cases.) What, then, is ''good reason to the contrary"? Lord "Good 
 Hatherley suggested a request " manifestly " dictated by " vindictive reason 
 feeling " (ib.) Hall, V.C., rejected » plea that the income of infant ° , , e , „ 
 defendants might be diminished : Rowe v. Gray (5 Ch. D. 263). discussed 
 
 In Saxton v. Bartley (48 L. J. Ch. 519) it appeared that there 
 would be no difficulty in effecting a partition; that the effect of 
 a sale would be to diminish the income received by one of the 
 defendants by one-half, and that the action would not have been 
 
 1868. 
 
124 
 
 PARTITION OR SALE. 
 
 and illus- 
 trated by 
 -tenancy of 
 ■the whole 
 .property, 
 
 >by over- 
 riding 
 ■mortgages, 
 
 and by 
 
 overriding 
 
 trusts. 
 
 ■brought but for ill-feeling existing between the parties. Bacon, V.C., 
 decided that those circumstances were a " good reason to the con- 
 trary," and in the exercise of its discretion the Court directed a parti- 
 tion instead of a sale. 
 
 In Porter v. Lopes (7 Ch. D. 358) Sir G. Jessel, M.R., suggested the 
 following as possible " good reasons to the contrary : " — The property 
 " may be temporarily very much depreciated in value," e.g. " if there 
 were two ironworks of equal value, and one party asked for a partition 
 and the other for a sale, and at that time the furnaces were out of 
 blast." Again, " property may be of a peculiar description so as not 
 to be actually saleable," e.g. property valuable as an appanage to 
 other property, but by itself valueless. He instanced manorial rights, 
 rights to game, outhouses, etc. But as these arguments were inapplic- 
 able to the case in question, they are only dicta. The case, however, 
 decided that the argument that there was a pretium affectionis 
 involved (like that in the leading case) was only an argument that the 
 party who raised it should be allowed to bid at the sale, under sect. 6 
 of the Act of 1868 : In re Vracup ([1894] 1 Ch. 59). In Wilkinson 
 v. Joberns (16 Eq. 14) Lord Selbourne had already decided that the 
 fact that the land was used for commercial purposes was the reverse 
 of a " good reason to the contrary." 
 
 In Wilkinson v. Joberns (ubi supra), a question as to the expediency 
 of granting an order for sale was raised because one co-tenant was 
 yearly tenant of the whole property. But similar difficulties occur 
 in cases of partition ; see In re Jones, Farrington v. Forrester ([1893] 
 
 2 Ch. 4-61), where the tenant (for life) borrowed money on mortgage 
 for making improvements. The present value of the improvements 
 (but not exceeding the amount so borrowed) was charged on both 
 moieties in the partition action. Compare In re Cook's Trusts ([1896] 
 W. N. 39) ; contrast Leigh v. Dickeson (15 Q. B. D. 60) ; and see 
 ante, p. 113 and post, p. 194. 
 
 The case of mortgagees was considered in Sinclair v. James ([1894] 
 
 3 Ch. 554). There there was a mortgagee of an undivided share; if 
 a sale had been ordered the nature of the mortgagee's security would 
 have been changed, so that the mortgagee was a necessary party to the 
 action : compare Oibbs v. Hayden (30 W. B. 726) ; secus, where there 
 is a mortgage of the whole estate. Here the usual course is to 
 inquire " what mortgages affect the whole property, and in a proper 
 case order a sale with the concurrence of such of the mortgagees as 
 will concur," or else to order a sale subject to the mortgage : Sinclair 
 v. James. Compare Waite v. Bingley (21 Ch. D. 674) ; Heckles v. 
 Heckles ([1892] W. N. 188). 
 
 Where there is an overriding trust the Court will refuse a sale. In 
 Taylor v. Orange (15 Ch. D. 165) trustees had power and were 
 "directed " to work a quarry during the lives of tenants in common ; 
 and the Court refused an order for sale. In Biggs v. Peacock (22 Ch. 
 D. 285) there were trustees to sell realty " at such time as they should 
 think fit ; " but tho beneficiaries entitled to the proceeds of sale were 
 
THE COURT'S DISCRETION. 125 
 
 sui juris ; and therefore any one of them might insist on the trust for 
 sale being carried out at any time. Here, too, an order for sale was 
 refused ; secus, if it had been a mere power of sale : Boyd v. Allen (24 
 Ch. D. 622). In Swaine v. Denhy (14 Ch. D. 326) the trust for sale 
 which the Court refused to anticipate was to take place after the 
 deaths of two tenants in common, one of whom still survived. 
 
 In a sale under sect. 3 of the Act of 1868 the Court "may if it Sect. 3„ 
 thinks fit, on the request of any of the parties interested," order 
 a sale if " beneficial," (a) " by reason of the nature of the pro- 
 perty," or (V) " of the number of the parties interested," or (c) 
 " of the absence or disability of some of those parties, " or (d) 
 " of any other circumstance." This discretion must be exercised 
 far more carefully than that exercised for the purposes of sect. 4 ; 
 bo that all the restrictions and limitations on its exercise for the 
 purposes of sect. 4 apply a fortiori to the present case. In In re 
 Dyer, Dyer v. Painter (33 W. E. 806), the Court refused an order for 
 sale, although evidence was adduced that the property if not sold 
 then might depreciate, and there were parties under disability. In 
 Drinhwater v. Ratcliffe (20 Bq. 528, 533) Sir G. Jessel, M.R., had 
 held that " beneficial " referred to £ s. d., not to sentiment. " The 
 meaning of the Legislature was," said Sir G. Jessel, M.E., in Gilbert 
 v. Smith (11 Ch. D. 78, 81), " that when you see that the property is 
 of such a character that it cannot be reasonably partitioned," then an 
 order for sale should be made. In that case where there were three 
 houses divisible into sixteenths ; in Peters v. Bacon (8 Eq. 125), 
 where three houses were divisible among forty or more persons, some 
 of whom were abroad ; in Syhes v. Schofield (14 Ch. D. 629), where 
 the property was divisible into one hundred and fortieths ; and Drink- 
 water v. Ratcliffe (ubi supra), where a thirty-acre farm was divisible 
 into thirty-sixths, a sale was ordered. 
 
 Special provision is made by sect. 6 of the Act of 1876, where Persons 
 married women request a sale, or " undertake " to purchase. The under 
 request is statutory, like that under the Pines and Recoveries Act : a ' ' ^' 
 Wallace v. Greenwood (16 Ch. D. 362) ; but the better practice is that 
 she should sign an instruction to her solicitor to instruct counsel to 
 prefer her request or undertaking : Grange v. White (18 Ch. D. 612). 
 The same power is given to the next friend, guardian ad litem, or 
 committee in lunacy of infants and lunatics respectively. But the 
 Court exercises an independent discretion with regard to the infant and 
 lunatic. The obligation on the Court to satisfy itself that the sale is 
 for the benefit of the lunatic (whether found or not so found) arises 
 under case-law : Porter v. Porter (37 Ch. D. 420), distinguishing Half- 
 hide v. Robinson (L. E. 9 Ch. 373) ; the obligation in the case of infants 
 is expressed by this section, and is therefore statutory. Rimington v. 
 Hartley (14 Ch. D. 630), Willis v. Willis (38 W. E. 7), and Miles 
 v. Jarvis (50 L. T. 48) apparently decided no more than this. Both 
 obligations are, however, derived from the doctrine that the Lord 
 Chancellor is guardian of infants and lunatics. Trustees represent 
 
126 PARTITION OB SALE. 
 
 their cestuis que trustent in a partition action : Simpson v. Denny (10 
 Ch. D. 28). It was held in Strugnell v. Strugnell (27 Ch. D. 258), 
 that where some of the beneficiaries are not sui juris, and the trustees 
 have no power of sale under their trust deed, the Court cannot order 
 a sale out of Court. 
 
 The shares of persons not in esse or abroad or under disability are 
 under an order for sale conveyed by means of a vesting order, under 
 the sections of the Trustee Act, 1850, now represented by sects. 25 et 
 seq. of the Trustee Act, 1893 (sect. 7 of the Act of 1868) : Beckett v. 
 Sutton (19 Ch. D. 646) : Caswell v. Sheen (69 L. T. 854) ; In re 
 Montagu ([1896] 1 Ch. 549). 
 Parties. The rule is that the Court cannot make an order for sale at the 
 
 heariDg, unless all persons interested are parties to the action : 
 Mildmay v. Quiche (20 Eq. 537), and see E. S. C, 1883, 0. li., r. 1 a. 
 The utmost that can be done if they are not all present is " to give 
 liberty to apply at Chambers with reference to a sale, in the event of 
 its being certified that all parties interested had been either parties 
 to the cause, or had been served with notice of" the order or 
 judgment (ib.). 
 
 Where an order is made under sect. 4, it is the practice to order an 
 inquiry in Chambers as to the title of plaintiffs to the moiety ; but 
 this is not necessary in simple cases. See Wood v. Gregory (43 Ch. D. 
 82), and cases cited there. 
 
 For the form of order in similar cases under sect. 3, see Peters v. 
 Paeon (8 Eq. 125); Sykes v. Schofield (14 Ch. D. 629; Seton, 5th 
 ed. p. 1537). 
 
 Under Order xvi., r. 40, B. S. C, 1883, parties served with notice of 
 judgment or order can attend proceedings under the judgment or 
 order, and are as much bound as if they had been originally parties. 
 The Partition Act, 1876 (39 & 40 Vict. c. 17), sect. 3, specifies 
 the grounds upon which such service of notice may be dispensed 
 with, viz. the impossibility of effecting services on all the persons re- 
 quiring to be served under the Partition Act, 1868, or of serving them 
 except at an expense disproportionate to the value of the property ; 
 and elaborate provisions are made in the next section (sect. 4) for cases 
 where orders thus dispensing with service are made ; and see as to the 
 practice, Phillips v. Andrews (35 W. E. 266) ; Rawlinson v. Miller 
 (1 Ch. D. 52) ; Hurry v. Hurry (10 Bq. 346) ; the form of judgment 
 in such a case is considered in In re Hardiman, Pragnell v. Batten 
 (16 Ch. D. 360), where it was held that the Court ought not, in the 
 absence of some of the parties interested, to preface its judgment 
 with an expression of opinion that sale will be more beneficial than 
 division. 
 Costs. The decision on the question of costs in Cotton v. Banks ([1893] 
 
 2 Ch. 221), followed in Ancell v. Bolfe ([1896] W. N. 9), is impor- 
 tant. There there were three shares — one subject to one mortgage, 
 a second to two mortgages, the third free. Only three sets of costs 
 were allowed out of the entire estate. The action, as we saw, could 
 
CONVERSION. 127 
 
 not have been brought without the concurrence of the mortgagees, 
 and the mortgagees can claim costs in priority to the mortgagors; 
 the effect therefore is that the owner of an incumbered share may 
 have to pay his own costs in a partition action. But see Belcher 
 v. Williams (45 Ch. D. 510). The usual rule as to costs was stated 
 thus by Sir G, Jessel in Ball v. Kemp- Welch (14 Ch. D. 512) : " The 
 •costs must be taxed as between party and party. Solicitor and client 
 costs are only allowed by consent of the parties; " and they were to 
 be borne rateably by the different shares. See, too, Porter v. Lopes 
 <7 Ch. D. 367) ; Richardson v. Feary (39 Ch. D. 45). 
 
 As to pleading the section of the Act of 1868, see Evans v. Evans Pleading. 
 <31 W. E. 495). 
 
 See, generally, Foster on Joint Ownership and Partition. 
 
 Co 
 
 nversion. 
 
 STEED v. PREECE. 
 
 (I,. E. 18 Eq. 192.) 
 
 When a conversion is rightly made either by the Principle. 
 Court or a trustee, all the consequences of conversion 
 must follow unless there be an equity in favour of 
 reconversion. 
 
 In this case real estate had been conveyed to trustees in Summary 
 trust for two infants, John Preece and Edward Preece, as of facts ' 
 tenants in common in tail with cross remainders between 
 them. A suit was instituted for administration of the 
 trusts, a decree for sale made, the estate sold, and the 
 purchase money paid into Court. Half of the fund in 
 Court was paid to John Preece, who had attained his 
 majority, and the other half was carried over to the 
 separate account of Edward Preece. On the death of 
 Edward Preece, an infant and without issue, John Preece 
 executed a disentailing deed and presented a petition 
 
128 
 
 CONVERSION. 
 
 Ackroyd \ 
 Smithson. 
 
 General 
 principle 
 of con- 
 version. 
 
 : v. 
 Preece. 
 
 to have the money paid to him. Held, that the real 
 estate was converted into personalty, and that Edward 
 Preece's legal personal representative was entitled to it. 
 
 This case forms a new point of departure in the elaboration of the- 
 doctrine of conversion, the broad principle of which was settled by 
 the well-known case 'of Ackroyd v. Smithson (1 Bro. C. C. 503), in 
 which Lord Bldon, then John Scott, made his celebrated argument. 
 " Mr. Scott,'' said one of the judges, when soon after he attempted to 
 argue the reverse doctrine, " I have read your argument in that case of 
 Ackroyd v. Smithson, and I defy you or any man in England to 
 answer it. I won't hear you ! " (Campbell's Lives of the Chancellors, 
 vol. vii. p. 56.) 
 
 The general principle on which the doctrine of " Conversion " is- 
 based is thus stated by the Court of Appeal in the case of Attorney- 
 General v. Eubbuck (13 Q. B. D. 275, 289). " It is an established 
 principle in equity that when money is directed or agreed to be turned 
 into land, or land agreed or directed to be turned into money, equity 
 will treat that which is agreed to be or which ought to be done as- 
 done already, and impresses upon the property that species of character 
 for the purpose of devolution and title into which it is bound ulti- 
 mately to be converted." This principle was considered as " established 
 universally by the cases " in Fletcher v. Ashburner (1 Bro. C. C. 500), 
 decided in the year 1779. In Ackroyd v. Smithson (1780) a testator 
 after giving certain legacies ordered his real and personal estate to 
 be sold, his debts and legacies to be paid out of the proceeds, and the 
 residue to be given to certain legatees. Two of the legatees died in 
 the lifetime of the testator, and the shares so lapsed went, so far as- 
 they consisted of personal estate, to the next of kin, and so far as they 
 consisted of real estate to the heir-at-law. The effect of the case was- 
 stated by Sir George Jessel in Steed v. Preece : " All that Ackroyd v. 
 Smithson decided was, that a conversion directed by a testator is- 
 a conversion only for the purposes of the will, and that all that is not 
 wanted for these purposes must go to the person who would have been 
 entitled but for the will. It does not decide that if the Court- or 
 a trustee sell more than is necessary there is an equity to reconvert 
 the surplus for the benefit of the heir-at-law of the persons entitled at 
 the time of the sale." 
 
 The decision in Steed v. Preece (in which the previous decisions of 
 Vice-Chancellor Shadwell in Jermy v. Preston (13 Sim. 356), and of 
 Lord Romilly in Cooke v. Dealey (22 Beav. 196), were questioned), as 
 stated two years later in Foster v. Foster (1 Ch. D. 588), proceeded on 
 the principle that " if a conversion is rightly made, whether by the 
 Court or a trustee, all the consequences of conversion must follow, 
 if there be no equity in favour of the heir or any one else for recon- 
 version." Compare Arnold v. Dixon (L. R. 19 Eq. 113). In Hyett v. 
 
CONVERSION. 129 
 
 Mekin (25 Ch. D. 735).a sale of freeholds was ordered in an adminis- 
 tration action, and after an elaborate review of the authorities Kay, J., 
 stated the law thus : " That if in" an action for administration of an 
 estate the Court, in the exercise of its undoubted jurisdiction, makes 
 an order for the sale of the estate, the order for sale will amount in 
 itself to a conversion." 
 
 Conversion means conversion for all purposes, including purposes 
 connected with the revenue. See Forbes v. Steen (10 Eq. 178) ; In the 
 Goods of Gunn (9 P. D. 242), cited in AttorneyGeneral v. Marquis of 
 Ailesbury (12 App. Cas. 672, 696). An order in any other kind of 
 action if valid has a similar effect. 
 
 But the order and trust must be valid. In In re Daveron, Bowen 
 v. Churchill ([1893] 3 Ch. 421) and Goodier Y.Edmunds ([1893] 3 Ch. 
 455) a trust for sale of realty was void as infringing the rule against 
 perpetuities; but unlike the case of In re Wood ([1894] 2 Ch. 310), 
 the limitations of the proceeds of sale were held good, so that they 
 took effect as limitations of unconverted realty. 
 
 The only exception to this rule is that where conversion arises by Kxception. 
 contract the parties may expressly contract that no conversion shall 
 take place (10 Q. B. D. 500). 
 
 The rule of the Court with regard to the conversion of partnership Conversion 
 property in the absence of any binding agreement between the parties of partner- 
 to the contrary, was thus stated in Darby v. Darby (3 Drew. 495), * ' „ ert _ 
 cited with approval in Att.-Gen. v. Eubbuck (10 Q. B. D. 488, 497, 
 affirmed 13 Q. B. D. 275). 
 
 " Irrespective of authority, and looking at the matter with reference 
 to principles well established in this Court, if partners purchase land 
 merely for the purpose of their trade and pay for it out of the partner- 
 ship property, that transaction makes the property personalty, and 
 effects a conversion out and out. What is the clear principle of this 
 Court as to the law of partnership? It is that on the dissolution of 
 the partnership all the property belonging to the partnership shall be 
 sold, and the proceeds of the sale, after discharging all the partnership 
 debts and liabilities, shall be divided among the partners according 
 to their respective shares in the capital. That is the general rule, 
 and it requires no special stipulation ; it is inherent in the very 
 contract of partnership." Compare Waterer v. Waterer (15 Eq. 
 402). 
 
 On this principle it was held in Attorney-General v. Huhbuck (ubi 
 supra), where the previous authorities are reviewed, that probate 
 duty was payable on a deceased partner's share of the partnership 
 realty, irrespective of the question whether there is any actual con- 
 version. This principle is now embodied in the Partnership Act, 
 1890 (53 & 54 Vict. c. 39). Sect. 22 provides : 
 
 " Where land or any heritable interest therein has become partner- 
 ship property, it shall, unless the contrary intention appears, be treated 
 as between the partners (including the representatives of a deceased 
 partner) and also as between the heirs of a deceased partner and his 
 
 K 
 
130 
 
 CONVERSION. 
 
 Equitable 
 reconver- 
 sion in 
 cases of 
 persons 
 under 
 disability. 
 
 Limited 
 owners. 
 
 Reconver- 
 sion in case 
 of absolute 
 owners. 
 
 Election. 
 
 executors and administrators as personal or moveable and not real or 
 heritable estate." 
 
 Where the partners are only co-owners of realty under sect. 20, 
 sub-sect. 3 of the same Act, conversion " in the absence of an agreement 
 to the contrary," does not ensue. As to this distinction, see In re 
 Wilson, Wilson v. Holloway ([1893] 2 Ch. 340) ; Davis v. Davis ([1894] 
 1 Oh. 393). 
 
 Apparent exceptions to this rule are explicable on the ground that 
 both equitable conversion and equitable reconversion take place. Thus 
 money paid into Court under sect. 69 of the Lands Clauses Consolida- 
 tion Act, 1845, i.e. in cases where the parties are under disability or 
 limited owners, is impressed with a trust for reconversion : Kelland v. 
 Fidford (6 Oh. D. 491). 
 
 Similar cases arose under sect. 6 of the Partition Act, 1876 (39 & 
 40 Vict. c. 17). These cases turned on the inability of infants and 
 married women who were subject to the old law, to give consent. In 
 Wallace v. Greenwood (16 Ch. D. 362), where it was held that the Act 
 gave the married woman power to consent to the conversion of her 
 property, but that her consent was inadequately expressed, Sir Gr- 
 Jessel stated the law thus : — " Where the Court has power to sell an 
 infant's real estate and orders it to be sold, the order operates as a 
 conversion, and the estate then becomes personalty.'' But " it is the 
 practice of the Court to provide against the consequences of conver- 
 sion," e.g. by declaring the land bought subject to a charge in favour 
 of the infant's personalty. See Seton, 5th ed. p. 869. The practice of 
 the Court reconverted what the law converted. Compare Foster v. 
 Foster (1 Ch. D. 588) ; Howard v. Jalland ([1891] W. N. 210). Again, 
 the practice of conveying realty to a lunatic's executors, adminis- 
 trators, and assigns (and vice versa), was regarded as equivalent to a 
 conversion of the lunatic's real property so as not only to effect its 
 transmission as personalty, but to render it liable as personalty to 
 probate duty : Attorney-General v. Marquis of Aileshury (12 App. Cas. 
 672). The effect of that decision is now embodied in sect. 123 of the 
 Lunacy Act, 1890 (53 Vict. c. 5). 
 
 The Settled Land Act, 1882, declares the proceeds of sale of land 
 sold by limited owners to be subject to the same trusts and provisions 
 as the land sold (45 & 46 Vict. c. 38, s. 22). This section, while not 
 directing reconversion in express terms, assumes that reconversion 
 takes place. See ante, p. 116. 
 
 Election by the beneficiary to take the property as unconverted is 
 defined thus in In re Lewis, Foxwell v. Lewis (30 Ch. D. 654) 
 (where, however, there was no conversion): " Whenever real estate has 
 been converted into personalty, or according to the doctrine of a Court 
 of Equity is to be treated as having been converted into personalty, 
 it must then descend as personalty unless some person who is absolutely 
 entitled to it has shown in some way that he has elected to take it as 
 real estate. Almost anything will be enough to show such an inten- 
 tion, but there must be something." Election took place in Mutlow 
 
CONVERSION. 131 
 
 v. Bigg (1 Oh. D. 385) and In re Gordon (6 Ch. D. 531), where 
 remaining in possession and receiving the rents for nine years without 
 taking any steps to have the estate sold was regarded as sufficient 
 evidence of an election to take the property as real estate ; and in In 
 re Davidson, Martin v. Trimmer (11 Ch. D. 341). In Meek v. 
 Devenish (6 Ch. D. 566) the election signified by a person while con- 
 tingently entitled was held valid on the contingency occurring. The 
 beneficiary who elects must know of his rights and intend to elect : 
 Wilson v. Thornbury (L. R. 10 Ch. 239) ; this however was a case of 
 election in the sense discussed in the notes to In re Vardon's Trusts 
 (infra). A married woman can elect (£&.), and Sisson v. Giles (11 
 W. B. 558). 
 
 It was held in Chandler v. Pocock (16 Ch. D. 648) that a residuary Eights of 
 bequest was under sect. 27 of the Wills Act, 1837, an exercise of a devisee and 
 general power of appointment over property which, although per- u e ,fj el ? e 
 sonalty at the testator's death, was at the same date equitably con- residuary- 
 verted. In this case conversion coujd only be effected with the disposi- 
 appointor's consent. Compare In re Har'man ([1894] 3 Ch. 607), a tlons ' 
 case under the S. E. Act, 1877, s. 34. In In re Duke of Cleveland's 
 S. E. ([1893] 3 Ch. 244) there was both a residuary devise and residuary 
 bequest, besides a devise of lands in Staffordshire. It was held, follow- 
 ing In re Greaves' Settlement Trusts (23 Ch. D. 313), that money 
 produced by the sale of lands in Staffordshire and held upon trust to 
 reinvest in land passed under the residuary devise. 
 
 It was held in In re Bicherson, Scales v. HeyJwe ([1892] 1 Ch. 379), Eights of 
 that where realty is devised upon trust to sell and hold the proceeds of ^ eir a ° d . 
 sale upon trusts, some of which fail, there is a resulting trust both of wnere 
 the proceeds of sale and of the unsold land in favour of the heir ; but there is a 
 the latter takes both the land and the proceeds of sale as personalty, resulting 
 Curteis v. Wormald (10 Ch. D. 172) was the exact counterpart of this trast ' 
 case. There it was held that where personalty was bequeathed upon 
 trust to buy and hold land upon trusts, some of which failed, the land 
 so bought resulted to the next of kin of the testator, but as realty. 
 It is to be noted that in these two cases the heir and next of kin 
 respectively were not entitled to "an equity to reconvert" the 
 personalty and realty which they took respectively. They had to take 
 the property as they found it. These two cases only carried the exist- 
 ing equitable doctrine a little further than it had been hitherto applied. 
 
 In an administration action the property is converted from the date Date of 
 of the order : Hyett v. Mekin (ubi supra) ; in a sale under sect. 78 conversion, 
 of the Lands Clauses Consolidation Act, 1845, from the date when the 
 price is fixed and the contract complete: Ex parte Hawkins (13 Sim. 
 500) ; Fry on Specific Performance (s. 110) ; in a deed from the date 
 thereof; in a will from the date of testator's death. The difficult 
 rule laid down in Lawes v. Bennett (1 Cox, 167) applies to freeholds let 
 to a tenant who has an option to purchase his tenancy either after or 
 before the lessor's death. When the option is exercised it operates as 
 a conversion as from the date of the lease, but with one exception ; 
 
132 CONVERSION OF WASTING SECURITIES. 
 
 mesne profits between the lessor's death and the exercise of the option 
 are treated as the profits of unconverted realty and are payable to 
 the heir or devisee. This artificial rule was discussed and applied 
 to the case of an intestate in In re Isaacs, Isaacs v. Reginall ([1894] 
 3 Ch. 506), and discussed without being applied in In re Pyle, Pyle 
 v. Pyle ([1895] 1 Ch. 724), as in this case the testator was regarded 
 as having expressed an intention to the contrary within the meaning 
 of Emms v. Smith (2 De G. & S. 722). 
 
 Conversion of Wasting Securities. 
 
 MACDONALD v. IRVINE. 
 
 (8Ch. D. 101.), 
 
 Principle. The rule of Howe v. Earl of Dartmouth is to be 
 
 applied unless upon the fair construction of the will 
 there is a sufficient indication of intention against it. 
 The burden of proof in every case rests upon the person 
 who says it is not to be applied. 
 
 Summary A testator, alter giving certain specific legacies, gave 
 the residue of his estate, which consisted at his death, 
 inter alia, of " Khedive Bonds " and household furniture, 
 to his nephew. After the date of the will he married, 
 and subsequently made a codicil, by which he gave to his 
 wife for her life " all the income dividends and annual 
 proceeds of his entire estate, and postponed the payment 
 of all legacies and the distribution of all estates vested in 
 him, or over which he had any power of disposition or 
 appointment until after her decease," and subject thereto 
 revived and confirmed his will. 
 
 The Court of Appeal decided that the residuary estate 
 must be converted in accordance with the rule in Some v. 
 Earl of Dartmouth. 
 
CONVERSION OF WASTING SECURITIES. 133 
 
 A variety of questions arose in this case, but the only question which Rule of 
 it is here proposed to consider was whether the rule of Howe v. Lord Bowe v 
 Dartmouth (7 Vesey, 137) (1802) was to be applied or not to the ^'"f th 
 facts before the Court. That rule was stated in the judgment in the JJartm(mth - 
 leading case (8 Ch. D. 121) as follows :— " That where personal estate 
 is given in terms amounting to a general residuary bequest, to be 
 enjoyed by persons in succession, such persons are to enjoy the same 
 thing in succession, and accordingly the Court effectuates the presumed 
 intention of the testator by the conversion into investments approved 
 by the Court of so much of the personalty as is at the death of the 
 testator of a wasting, or perishable, or insecure nature, and also of 
 reversionary interests." In the leading case it was held that the 
 Khedive bonds were not specifically bequeathed. Compare Simpson 
 v. Lister (4- Jur. N.S. 1269); and there was this peculiarity about 
 the residuary gift, that there was no tenancy for life created by 
 the will, and accordingly the will per se could not possibly afford 
 any evidence or indication of intention of the testator as to how 
 the property was to be enjoyed. Subsequently to the will the 
 testator married. He then by a codicil introduced a tenancy for 
 life in favour of his wife, and in other respects confirmed his will, 
 which would otherwise have been revoked by sect. 18 of the Wills 
 Act (1 Vict. c. 26). " If," said James, L. J., " the testator had 
 simply inserted in the will as the first gift, ' I give to my wife the 
 income, dividends, and annual produce of my entire estate,' I think 
 that would not have been, according to the fair construction of the 
 decided cases, any indication of an intention that she was to have any- 
 thing more than the income, dividends, and annual produce of the 
 whole of the estate, that is to say, of that which would remain of the 
 estate after the debts, funeral and testamentary expenses had been paid, 
 and the property had been converted and properly dealt with according 
 to the duties imposed upon his legal personal representatives. The 
 other words, that he postponed the payment of all legacies, the dis- 
 tribution of all estates vested in him or over which he had a power of 
 disposition, until after her decease meant nothing more than that he 
 intended the life estate of his wife to be paramount to any gift however 
 clear and specific." The two clauses taken together were therefore not 
 in the opinion of the Court sufficient to indicate an intention to take 
 the case out of the ordinary rule of conversion established by Howe v. 
 Lord Dartmouth. And as James, L.J., said (p. 124), *' the rule 
 must be applied unless upon the fair construction of the will you 
 find a sufficient indication of intention that it is not to be applied, 
 the burden in every case being upon the person who says the rule of 
 the Court of Chancery ought not to be applied in the particular case." 
 
 In the celebrated case of Brown, v. Gellatly (L. E. 2 Ch. 751), the Followed 
 testator, who was a shipowner and merchant, gave his trustees, who in Brown t. 
 were also his executors, power to realize his personal estate " when et * a ^' 
 and in such a manner as they may see fit, and to sail my ships for the 
 benefit of my estate until they can be satisfactorily sold." He then 
 
134 CONVERSION OF WASTING SECURITIES. 
 
 left his residuary estate to tenants for life with remainders over, and 
 gave his executors the most ample discretionary powers to invest or to 
 retain his funds in certain specified securities. Three questions arose 
 in the case : first, as to the ships, which since his death had earned 
 large profits; secondly, as to securities authorized by the testator; 
 thirdly, as to securities which were neither authorized by the testator 
 nor proper for the investment of trust moneys. With regard to the 
 first point, the Court of Appeal decided, distinguishing Green v. 
 Britten (1 De (J. J. & S. 649), (where there was an absolute prohibition 
 against converting the ships for seven years, except in an event which 
 did not happen) that the testator intended that his ships should be 
 sailed until conversion, not for the particular benefit of tenant for life 
 or remainderman, but for the benefit of the estate generally; and 
 that accordingly, as in Meyer v. Simonsen (5 De G. & S. 723), a value 
 should be set upon them as at the death of the testator, and that the 
 tenant for life was entitled to 4 per cent, on such value, and that 
 the residue must be invested and become part of the estate. As to the 
 second point, the Court held that the tenant for life was entitled to 
 the actual income of the authorized investments. Thirdly, as to the 
 " unauthorized " investments, that the tenant for life, according to the 
 rule of Dimes v. Scott (4 Russ. 195) followed in Taylor v. Clark (1 
 Hare, 161), was only entitled as from the death of the testator to the 
 interest of so much consols as the amount which would have been 
 realized by the sale of the unauthorized securities at the end of a year 
 after the testator's death would have purchased if then so invested. 
 Compare for annuities Porter v. Baddeley (5 Ch. D. 542); Tickner v. 
 Old (18 Eq. 422); and see In re Carter (41 W. R. 140). In In re 
 Hengler, Frowde v. Hengler ([1893] 1 Ch. 586), Kekewich, J., applied 
 this principle. 
 Not ap- In In re Chancellor, Chancellor v. Brown (26 Ch. D. 42), a testator 
 
 plied. h a cl devised and bequeathed his real and personal estate, the bulk of 
 
 which consisted of his business and the premises on which it was 
 carried on, to trustees upon trust to sell and invest the proceeds of sale 
 and pay the income thereof to his wife for her life, and after her death 
 to her children. The trustees had power to postpone conversion, and 
 there was the usual declaration that until sale the net rents, profits, 
 and income should be paid to the persons to whom the income 
 would be payable if the sale had not actually been made. The will 
 contained no reference to his business, and the executors carried it on 
 for nearly two years. The Court of Appeal decided that the widow 
 was entitled to the net profits of the business on the ground that the 
 executors had an implied authority to carry on the business, and that 
 the testator had expressly directed that the profits of his estate were 
 to be treated as income. Under very similar circumstances the 
 trustees were held in In re Crowther, Midgley v. Crowther ([1895] 2 
 Ch. 56), to have been justified in carrying on a business for twenty-two 
 years and in paying the whole profits as income to the tenant for life 
 Compare Thursby v. Thursby (19 Eq. 395). 
 
interest. 
 
 CONVERSION OF WASTING SECURITIES. 135 
 
 In In re Thomas, Wood v. Thomas ([1891] 3 Ch. 482), trustees had 
 an absolute power to retain investments for such period as they should 
 think fit, and were directed by the testator to stand possessed of the 
 stocks, funds, etc., for the time being constituting his residuary 
 personal estate, and of the income thereof upon trust to pay the in- 
 come to life tenants successively. The Court found in this direction 
 a sufficient indication that the tenants for life were to enjoy the 
 income of retained securities in specie, and following Green v. Britten 
 and In re Sheldon, Nixon v. Sheldon (39 Ch. D. 50), decided that the 
 whole income of certain American bonds which bore interest at 6 per 
 cent, and were redeemable at par at a fixed rate, and which, though 
 not amongst the investments authorized by the testator, had been 
 retained by the trustees in the exercise of the discretion given to 
 them, was payable to the tenants for life. In Gray v. Siggers 
 (15 Ch. D. 74) Malins, V.C., and in Hope v. D'Hedouville ([1893] 2 
 Ch. 361) Kekewich, J., declined to apply the rule in Brown v. Gellatly, 
 Dimes v. Scott, etc. 
 
 The rule of the Court as to calculating interest at 4 per cent, in R ^te of 
 applying the rule in Howe v. Earl of Dartmouth (ubi supra), and in 
 other cases where an apportionment becomes necessary between tenant 
 for life and remainderman, as in In re Earl of Chesterfield's Trusts 
 (24 Ch. D. 643), has been recently considered in several cases, and the 
 point has been raised whether, having regard to the fall in the rate of 
 interest readily obtainable on sound securities, the rate to be allowed 
 by the Court should not now be 3 per cent, instead of 4 per 
 cent. Kekewich, J., in In re Nicholson, Nicholson v. Nicholson 
 ([1895] W. N. 106), regarded the established rule as one which 
 seemed to require alteration. In In re Goodenough, Marsland v. 
 Williams ([1895] 2 Ch. 537), the same judge " thought it his duty to 
 have the courage of his opinions, and to say that the time had now 
 come when judges could no longer adopt the rate of 4 per cent. ; " 
 and in making an order similar to that in In re Earl of Chesterfield's 
 Trusts (supra), substituted 3 for 4 per cent, as the rate of interest ; 
 and see a similar decision of the same judge in In re Duke of Cleve- 
 land's Estate, Hay v. Wolmer ([1895] 2 Ch. 542). Compare Gilroy 
 v. Stephens (51 L. J. Ch. 834). Contrast Owen v. Richmond ([1895] 
 W. N. 29) ; In re Morley ([1895] 2 Ch. 738). Kekewich, J.'s, lead 
 has, however, not been followed by other Chancery judges : see In re 
 Dallmeyer ([1896] 1 Ch. 372, 396) ; Wassell v. Leggatt ([1896] 1 Ch. 
 554). 
 
136 
 
 DISCRETIONARY TRUSTS. 
 
 Discretionary Trusts. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 GISBORNE v. GISBORNE. 
 
 (2 App. Cas. 300.) 
 
 Where an absolute discretion is conferred on trustees 
 as to the mode of executing a trust, the Court will 
 not interfere with their discretion unless exercised 
 mala fide or in a way incompatible with the trust. 
 
 An Order in Lunacy had been made to pay £696 per 
 annum for the maintenance of a lady who was absolutely 
 entitled to a fund which produced about £600 per 
 annum. A second fund had been left to trustees upon 
 trust, "in their discretion and of their uncontrollable 
 authority," to apply " the whole or such portion only of 
 the annual income as they shall deem expedient " for her 
 maintenance. The second fund, together with so much 
 of the income as was not applied for her benefit, passed 
 over to other persons on her decease. The question 
 was on which fund the £696 per annum should be 
 charged. Held, by the House of Lords, that the trustees 
 were entitled to exercise an absolute discretion as to 
 paying and applying the whole or any part of the income 
 of the second fund for the benefit of the lunatic ; and 
 it was ordered, with the consent of the trustees, that 
 the income of the second fund was only liable to make 
 good the deficiencies of the first fund. 
 
 Discretion- There are three things to be carefully distinguished — a trust, a, 
 ^ r ^ tr ? sts discretionary trust (half trust, half power), and a power. Dis- 
 cretionary trusts may mean powers coupled with a trust or duty 
 and therefore indestructible : see Wetter v. Ker (L. I!. 1 Sc. App. 
 
DISCRETIONARY TRUSTS. 
 
 137 
 
 11) ; In re Eyre (49 L. T. 259) ; Saul v. Pattinson (34 W. E. 561) 
 (a protected life interest) ; but it will be used in this article to denote 
 trusts or duties coupled with a power. The Court will not enforce 
 these trusts so as to defeat the power, unless the power is being 
 used so as to defeat the trusts. The attitude of the Court towards 
 discretionary trusts is described thus by Jessel, M.E., in Tempest 
 v. Camoys (see below) : " When a testator has given a pure dis- 
 cretion to trustees as to the exercise of a power " (briefly, a power), 
 "the Court does not enforce the exercise of the power against the 
 wish of the trustees, but it does prevent them from exercising it 
 improperly. The Court says that the power, if exercised at all, is to 
 be properly exercised. But in all cases where there is a trust or duty 
 coupled with the power " (briefly, a discretionary trust), " the Court 
 will then compel the trustee to carry it out in a proper manner, and 
 within a reasonable time " (21 Ch. D. 571, 578). Qisborne v. Qisborne 
 was a case in which the Court refused to interfere, and was well 
 described in the argument in In re Lofthouse (29 Ch. D. 921), as the 
 turning point in the current of authority with regard to the control 
 which the Court will exercise over discretionary trusts. It will be 
 observed that the lady's interest in the fund under her husband's will 
 was, as Lord Cairns expressed it in his judgment, " evanescent," that 
 consequently it was obviously for her interest that the cost of her 
 maintenance should be charged upon that fund. The usual practice Usual 
 of the Court in such a case would have been to save the money which practice as 
 was her own property, and to maintain her out of the other fund. t „ nance " f 
 Lord Cairns in delivering judgment referred to this rule, and proceeded lunatics, 
 as follows : — " I answer that may be the case, that may be the 
 principle (and I make no objection to the principle ; I highly approve 
 of it), by which the Court of Chancery, where it has to exercise its 
 discretion, deems it expedient to proceed in the exercise of that 
 discretion. But am I entitled, in dealing with a will such as is now 
 before your Lordships, to set up against the discretion of the trustees, 
 which is pronounced by this will to be uncontrolled and uncon- 
 trollable, the rule which the Court of Chancery adopts for the exercise 
 of its own discretion in a similar or in an analogous case ? To do so 
 here would simply be to reverse the words used by the testator, and to 
 say that the discretion which is given to the trustees by this will, 
 and which is stated to be uncontrollable, shall be controlled and be 
 subjected to that rigid and unbending rule upon which the Court of 
 Chancery acts (for reasons of which I entirely approve), upon those 
 occasions when it has to perform the functions which, in this instance, 
 the trustees, and not the Court, have to perform." It may be 
 questioned whether if the trustees had not exercised their discretion 
 by giving the consent referred to in the order the same course would 
 have been adopted. 
 
 In In re Weaver (21 Ch. D. 615) precisely the same circumstances 
 recurred, except for a difference ; the words were " upon trust to apply 
 the same " (income) "in such way, at such times, and in such manner " 
 
138 
 
 DISCRETIONARY TRUSTS. 
 
 Discre- 
 tionary 
 Trusts for 
 mainten- 
 ance of 
 infants. 
 
 (instead of " to apply the income or such part of it") as the trustees 
 should think fit, so that the lunatic was entitled to the whole of the 
 income of the settled fund, upon which his maintenance was therefore 
 in the first instance charged. 
 
 It has been suggested that the principle of the leading case is 
 inapplicable to infants' maintenance clauses in an ante-nuptial settle- 
 ment; and this was held by Kindersley, V.C., in Eansome v. Burgess 
 (3 Eq. 773), where the words were as in Grisborne v. Grisborne, and 
 the order as in In re Weaver ; but this decision was disapproved in 
 Wilson v. Turner (22 Ch. D. 521, 525). With this possible excep- 
 tion, the principles with regard to infants and lunatics are the same so 
 far as the construction of the maintenance clauses are concerned: 
 Furley v. Hyder (41 L. J. Ch. 583). 
 
 In Tabor v. Brooks (10 Ch. D. 273) trustees, who held a fund upon 
 trust to apply the whole or any part of the income thereof for the 
 benefit of Mr. and Mrs. Tabor and the children, as they "in their 
 uncontrolled and irresponsible discretion" should think fit, paid 
 almost all the income to Mr. Tabor, who was a drunkard and wife- 
 beater. The wife, who lived apart from her husband, was nearly 
 destitute. But the Court, though it disapproved of, refused to inter- 
 fere with the discretion of the trustees. Compare In re Lofthouse, 
 an Infant (29 Ch. D. 921). 
 
 In In re Bryant, Bryant v. Sickle ([1894] 1 Ch. 324), trustees 
 were directed to apply " the whole or such part as they shall think 
 fit " of the income of trust funds for the maintenance of infants, and 
 the trustees did not apply any of the income in the manner directed. 
 The Court based their refusal to interfere on the ground that the 
 surviving parent had sufficient income of her own for their mainten- 
 ance, and was maintaining them. It is presumed that if there had 
 been no other fund the Court would have interfered. 
 
 Thus in In re Hodges, Davey v. Ward (7 Ch. D. 754) (where the 
 same words were used), the means of the surviving parent were wholly 
 inadequate to the support of the infants, and he was allowed by the 
 Court the whole income for future maintenance, and debts incurred 
 for past maintenance were charged upon the accumulations. The 
 trustees had only allowed him £60 out of an income of £150 ca. 
 
 In Wilson v. Turner (22 Ch. D. 521) there was a trust in an 
 ante-nuptial settlement to " pay the whole or such part as the trustees 
 should think fit" of the income of the trust funds "for or towards" 
 the maintenance of the child. The trustees, misled by Bansome v. 
 Burgess (see above), paid the whole income to the father, and there 
 was no evidence that the father wished to maintain or maintained the 
 child out of this fund, as he had other means of his own. This was 
 held to be no exercise of a discretion, and the father's estate had to 
 refund the moneys so advanced. Similar control was asserted by 
 the Court in In re Boper's Trusts (11 Ch. D. 272), where the income 
 was improperly paid to a mother living apart from her children. On 
 the other hand, in Brophy v. Bellamy (L. R. 8 Ch. 798), the parent 
 
DISCRETIONARY TRUSTS. 
 
 139 
 
 undertook to pay the money to maintain his children ; and although 
 the payment was unnecessary, as the parent was rich, the payment of 
 the whole income to the parent for the maintenance of the children 
 was upheld. In view of Wilson v. Turner and In re Roper's 
 Trusts, trustees ought not to pay unnecessary sums for maintenance 
 without ohtaining an undertaking, as in Brophy v. Bellamy, or some 
 evidence that the money will be applied towards maintenance of the 
 infants. 
 
 Similar questions arise with regard to investments. Thus a trust 
 to sell, qualified by a power to postpone sale, justifies a trustee in 
 retaining risky securities handed over to him by the settlor: In re 
 Norrington, Brindley v. Partridge (13 Ch. D. 654). In this case 
 the risky securities were shares in an unlimited liability company, 
 and they were retained nine years, although the trustee was also 
 executor, and executors are usually bound to sell the estate of their 
 testator within a year. 
 
 Vice-Chancellor Bacon, in delivering judgment in favour of the 
 trustees and executors, expressed himself as follows : — " In the course 
 of this discussion the word 'discretion' has been very frequently 
 used, and upon it the argument on both sides has a great deal turned. 
 What does it mean? In honest plain language it means 'Do as you 
 like.' A discretion which is to be actively exercised must be exercised 
 honestly and intelligently, but the discretion which a man chooses to 
 exercise by remaining supine is a duty, if it is a duty, of imperfect 
 obligation. If no shadow of suspicion can be brought against him, 
 if no culpable negligence can be alleged against him, what liability 
 does a man in whom the discretion is vested incur by doing nothing ? " 
 This decision was upheld by the Court of Appeal. Lord Justice 
 James, in delivering judgment, said : " The testator in this case has 
 given to his trustees power to judge for themselves. They were to 
 do what they thought best. The testator had invested his money as 
 he thought best, and he had invested it in certain securities because 
 he thought well of them. And he says in plain language : ' I have 
 acted thus in the exercise of my discretion. My executors are to have 
 the same discretion.' We should be making a will for the testator if 
 we were to hold them liable for having acted as they have done." 
 
 On a similar question being raised on a similar provision in In re 
 Brown, Brown v. Brown (29 Ch. D. 889), Pearson, J., defined the 
 position of the trustees thus : " The trustees have power to postpone 
 the conversion, but the conversion ought not to be indefinitely post- 
 poned : " Lewis v. NoVbs (8 Ch. D. 591). In la re Smith, Arnold v. 
 Smith ([1896] 1 Ch. 171), only two years' postponement was allowed, 
 but there were words directing an immediate sale. The implied duty 
 of executors to sell realty, In re Tanqueray- Willaume and Landau, 
 but not chattels real, In re Venn and Furze's Contract ([1894] 2 Ch. 
 101) within twenty years, is referred to post, p. 283. These cases do 
 not derogate from the principle laid down in Knox v. Mackinnon, 
 post, p. 149. 
 
 Trusts to 
 convert 
 and invest, 
 and power 
 to post- 
 pone con- 
 version and 
 invest- 
 ment. 
 
140 
 
 DISCRETIONARY TRUSTS. 
 
 Duty to 
 convert or 
 invest 
 coupled 
 with 
 
 powers of 
 postpone- 
 ment. 
 
 Corrupt 
 motive. 
 
 Unanimity. 
 
 Interfer- 
 ence by 
 Court. 
 
 Adjectives. 
 
 In Tempest v. Lord Camoys (21 Ch. D. 571) there was a declaration 
 (that is to say, a trust) that the trustees should, " at their absolute 
 discretion," lay out the proceeds of sale of realty in purchasing other 
 realty. Further, the trustees had the proceeds of sale of realty lying 
 idle, so that there was an immediate duty to invest such proceeds. 
 The Court refused to dictate any scheme to the trustees, although as 
 yet the trustees had no scheme of their own ; and Jessel, M.E., said 
 that if the trustees "had refused to invest the money in land at 
 all, the Court would have found no difficulty in interfering." As it 
 was, the refusal of the trustees to buy that particular land at that 
 particular time was well within their discretion : cited in In re Earl 
 of Radnor's Will Trusts (45 Ch. D. 402). 
 
 In In re Burrage, Burningham v. Burruge (62 L. T. 752) the 
 power to sell at discretion was express, but the duty to sell and sell 
 soon arose from the fact that the securities were wasting, and that the 
 testator had settled the beneficial ownerships of his estate upon 
 tenant for life and remainderman. Chitty, J., refused to enforce this 
 duty, on the ground that the trustees, although they had postponed 
 the sale, had acted fairly between the beneficiaries. As long as they 
 did that they could choose their own time and manner of sale. 
 
 In In re Courtier, Coles v. Courtier (34 Ch. D. 136) it was 
 suggested that the duty to sell leaseholds arose from the duty of 
 a trustee to save the reversion, as the leaseholds were running to rack 
 and ruin, and no one would repair them. The Court would not admit 
 the duty. It is to he noted that in this case the tenant for life was 
 expressly authorized to enjoy the leaseholds in specie, so that the 
 argument urged in In re Burrage did not apply. And further, 
 Cotton, L.J., intimated that if he could have construed the power 
 as " part of a general trust for the management of the estate " (as to 
 which see Tempest v. Lord Camoys (21 Ch. D. 576, n.)), he would 
 have come to a different conclusion. 
 
 In In re Smith, Smith v. Thompson ([1896] 1 Ch. 71), there was a 
 power to invest upon " such " securities as the trustees " should think 
 fit ; " and one of the trustees accepted a secret commission for invest- 
 ing in a risky security. He had to replace the security (and refund 
 the commission) ; the other trustee, who had acted honestly but in- 
 judiciously, incurred no liability. 
 
 Where trustees exercise a power to postpone conversion of un- 
 authorized securities, they must exercise it unanimously : In re Roth, 
 Goldberger v. Roth (74 L. T. 50). 
 
 If the Court disallows the exercise of a discretion as being bad, it 
 will proceed to deal with the property in dispute, questions of detail 
 being referred to Chambers : In re Roper's Trusts (11 Ch. D. 273). 
 
 There is apparently no virtue in the adjective " free," " absolute," 
 or " uncontrolled/' etc., cases where there is no adjective — In re Smith, 
 Arnold v. Smith, In re Bryant, Wilson v. Turner, In re Hodges (tibi 
 supra) — being treated in the same way as those where the adjective is 
 present. 
 
SUSPENSION OF TRUSTEES' POWERS. 141 
 
 Suspension of Trustees' Powers. 
 
 MINORS v. BATTISON. 
 
 (1 App. Cas. 428.) 
 
 Where judgment has been given in an action for the Principle 
 administration of a trust, its general effect is to paralyze 
 the powers of the trustees, and to prevent them from 
 acting in the administration without the sanction of the 
 Court. 
 
 A testator, who died in 1863, left all his property, Summary 
 
 of facts. 
 which included the proprietorship of a newspaper, to 
 
 trustees upon trust to carry on the newspaper during the 
 life of his wife, and among other trusts after her decease, 
 " at the sole discretion of my trustees," to sell all his 
 property, including the newspaper, and divide the proceeds 
 among his children. In 1866 a suit for administration 
 was commenced, in which a decree was made, followed by 
 an order in 1870, after the death of the widow, declaring 
 that it was for the benefit of all parties that the news- 
 paper should be carried on. The House of Lords, in 
 giving judgment, declared that there was an absolute 
 trust for sale after the death of the widow, and expressed 
 an opinion that the trustees no longer had power to 
 postpone or carry out the sale at their absolute discretion. 
 
 The point decided in this case, as stated in Buhb v. Padwick (13 First point 
 
 Ch. D. 517), was that the " mere accidental delay in converting the of ^ e 
 
 newspaper property was not to postpone the vesting of the shares, ea 1D ?j, 
 
 although the gift over was if the children died without having received no t, 
 their shares," but the case is also a leading modern authority for the 
 old and well-established principle stated above. 
 
 "In my opinion," said Lord Chelmsford, "the true meaning of Second 
 
 the clause is that it imposes upon the trustees an absolute trust to P oint wi ^» 
 
142 SUSPENSION OF TRUSTEES' POWERS. 
 
 be con- 
 sidered 
 here ; 
 
 i.e. effect 
 of adminis- 
 tration 
 judgment, 
 on powers 
 of trustees, 
 
 on invest- 
 ments. 
 
 Appoint- 
 ment of 
 new 
 trustees. 
 
 sell, but gives them a discretion as to the manner in which, and to a 
 certain extent the time at which, the different properties may be sold 
 to the best advantage." "I cannot help observing," he continued, 
 " that even assuming that the trustees had an absolute discretion, this 
 would not prevent the appellant from being entitled to her share of the 
 testator's residuary estate, because during the life of William Hobson 
 (her father and the testator's son) the trustees had retired from the 
 trust and placed themselves in the hands of the Court by the bill 
 filed by the trustees for administration of the trusts, and the order 
 founded thereon, after which the trustees could not exercise any dis- 
 cretion with which they were invested without the sanction of the 
 Court." 
 
 In Lewin on Trusts, chapter xxiii., where the author discusses the 
 general powers of trustees, he thus sums up the effect of the cases on 
 the subject (9th ed. p. 673) : " The powers assigned in the preceding 
 pages to trustees must be taken subject to the qualification, that, 
 if an action has been instituted for the execution of the trust, 
 and a decree made, the powers of the trustees are thenceforth so far 
 paralyzed that the authority of the Court must sanction every subse- 
 quent proceeding. Thus the trustees cannot commence or defend any 
 action or suit, or interfere in any other legal proceeding, without first 
 consulting the Court as to the propriety of so doing : a trustee for sale 
 cannot sell : the committee of a lunatic cannot make repairs : an 
 executor cannot pay debts, or deal with the assets for the purpose of 
 investments. 
 
 In Bethell v. Abraham (L. R. 17 Eq. 24) a decree for the adminis- 
 trations of the trusts of Lord Westbury's will had been obtained. The 
 trustees, who had power to invest certain moneys belonging to the 
 estate at their discretion, and who had also power to continue or 
 change securities from time to time as to the majority of them should 
 seem meet, applied to the Court for liberty to sell certain securities and 
 invest the proceeds in American funds and railway stocks. Infants 
 were interested in the estate, and the Court declined to sanction the 
 proposed investment. In this case Jessel, M.R., laid down the prin- 
 ciple that as long as an estate is subject to administration by the Court, 
 the Court does not allow a purchase or a mortgage or any other invest- 
 ment to be made without being personally satisfied of its safety. 
 
 In In re Oadd, Eastwood v. Clark (23 Ch. D. 134), a question arose 
 as to the exercise of a power of appointment of new trustees after judg- 
 ment had been given for administration of the trusts of the will. The 
 Court of Appeal decided that the effect of the judgment for adminis- 
 tration was not to take away from the donee of the power who was 
 trustee the power of appointing new trustees, but to render the 
 appointment subject to the supervision of the Court; that if he 
 nominated a fit person, such person must be appointed, and that the 
 Court had no discretionary power to say that another person was 
 better than his nominee. If the trustee nominated an improper 
 person the Court would call upon him to make a fresh nomination. 
 
SUSPENSION OF TRUSTEES' POWERS. 143 
 
 If the trustee repeatedly nominated improper persons, that would 
 amouDt to a refusal to exercise the power, and the Court could then 
 appoint, but the power would not be destroyed by a single nomination 
 of which the Court did not approve. In this case the Court of Appeal 
 pointed out that the form of decree in Middleton v. Reay (7 Ha. 
 106), which directed the Master to approve of trustees without saving 
 the authority of the donee of the power, was not right, and that the 
 modern form is framed so as to preserve the trustee's power. 
 
 In In re Norris, Allen v. Norris (27 Ch. D. 333), there was an 
 administration action, and the continuing trustee, who was the solicitor 
 to the trustees, appointed his son, who was also his partner, to be a 
 new trustee. The Court held that though the appointment would 
 have been valid if made outside the Court, yet that as there was an 
 administration action, it must withhold its sanction to the appointment 
 in question. 
 
 In In re Hall (51 L. T. 901) an action had been commenced 
 against a sole trustee who was also tenant for life, asking for a general 
 execution of the trusts of a will, but the Court, under the power con- 
 ferred by Order lv., r. 10, only ordered certain inquiries, among which 
 was one whether new trustees bad been appointed, and whether any 
 and what steps ought to be taken for their appointment. Pending this 
 inquiry the defendant appointed a new trustee. The Court said that 
 the effect of the order made was in no way to interfere with the exer- 
 cise of the trustees' power except so far as its exercise must necessarily 
 clash with the particular inquiries ordered. The inquiry, however, 
 having been ordered, it was the defendant's duty not to fill up the 
 vacancies without an application for the approval of the Court. All 
 that the person possessing the power had to do in such a case was to 
 take care that he appointed such a person as the Court would approve. 
 The power of nomination is left in him, but the Court has a power of 
 control to see that a fit and proper person is appointed. The proper practice, 
 course would have been to have made an application in Chambers, 
 giving the name of the person nominated, and if it was found that 
 there was no objection to his appointment, it would have been approved; 
 but, as there was no objection made to the person appointed, Pearson, J., 
 did not think it necessary either to refer the matter to Chambers, or 
 expressly to make an order sanctioning the appointment. 
 
 In Tempest v. Lord Camoys (58 L. T. 221) the testator had 
 nominated as trustees of his will persons to whom he had given 
 beneficial interests, and on their death or retirement had empowered the 
 persons beneficially entitled for the time being "to appoint one or 
 more persons to supply the vacancy." The trusts of the will wen- 
 being administered under the direction of the Court, and a petition 
 was presented for the appointment of a trustee in substitution for one 
 who had died. The petitioners proposed a person who was beneficially 
 interested in the testator's estate, and though objection was made to 
 the appointment on this ground, Chitty, J., appointed him. The 
 Judge, after pointing out that in this case there was no absolute 
 
144 SUSPENSION OF THUS TEES' POWERS. 
 
 On powers 
 of main- 
 tenance. 
 
 On schemes 
 
 for 
 
 charities. 
 
 Position of 
 trustees 
 pending 
 action. 
 
 discretionary power conferred on the persons who were to appoint, and 
 that consequently the principle of our last leading case, Oisborne v. 
 Oisborne, did not apply, proceeded as follows : — " Unquestionably the 
 C"urt has some control over the exercise of a power of this kind. 
 Where there is a power of appointment of new trustees, such as I have 
 before me, it is quite clear according to the long-established course of 
 decisions that the donees of the power cannot exercise it after there is 
 a decree for the execution of the trusts made by the Court without 
 coming to the Court for its sanction. It is, however, equally clear 
 according to the modern practice that where there is a power of this 
 kind to appoint new trustees the right order is not the reference in a 
 common case to appoint new trustees as if the jurisdiction were 
 solely in the Court. The right form of order is that which keeps alive 
 the power. The substance of the order properly is either that the 
 trustees are at liberty to exercise the power subject to the sanction 
 of the Court, or that there are new trustees to be appointed having 
 regard to the power. The substance, therefore, is that the power is 
 not taken away from the trustees. They have it, but the Court also 
 has control over it." 
 
 For the effect of an administration decree on powers of maintenance 
 of infants, see Furhy v. Hyder (41 L. J. Ch. 583). 
 
 In Lewis v. Allenby (10 Eq. 668) testator bequeathed personalty to 
 trustees upon trust to divide the same among English charities "as 
 they in their sole and uncontrolled discretion shall think fit." The 
 estate was being administered. It was held that the bequest was 
 valid, although part of the personalty was impure, and the trustees 
 were directed to submit a scheme to the Vice-Chancellor at Chambers. 
 Lewis v. Allenby was followed in In re Piercy, Whitwham v. Piercy 
 (73 L. T. 732) (but an appeal is pending as to the validity of the 
 devise of realty in that case). 
 
 A further principle which may be collected from the cases is that 
 where there is a pending action, even if no judgment for administra- 
 tion has been made, though the plaintiff may abandon the action at 
 any moment, and though the trustees must not assume that a judg- 
 ment will be made, but must proceed in all necessary matters in the 
 due execution of the trust, it is nevertheless imprudent for the trustees 
 to act under such circumstances without first consulting the Court : 
 see Lewin on Trusts, 9th ed. 673, 674, and In re Hansel (52 L. T. 
 
POWER OF TRUSTEES TO APPOINT AGENTS. 145 
 
 Power of Trustees to Appoint Agents, etc. 
 
 SPEIGHT v. GAUNT. 
 
 (9 App. Cas. 1.) 
 
 A trustee cannot delegate his trust, hut he may in Principle. 
 the administration of the trust funds employ agents, 
 hankers, hrohers and others, in eases of moral necessity, 
 or in the usual course of business, and in the absence 
 of negligence or default he will not be held liable for 
 
 A trustee employed a broker whose honesty and sol- Summary 
 vency he had no reason to suspect to buy securities of 
 certain municipal corporations authorized by his trust. 
 The broker gave the trustee a bought note which pur- 
 ported to be subject to the rules of the London Stock 
 Exchange, and obtained from him over £15,000 on a 
 statement that the money would have to be paid next 
 day, which was in fact the next settling-day. It appeared 
 from the evidence that some of the securities were not 
 bought and sold on the Stock Exchange, but were only 
 obtainable direct from the corporations, though applica- 
 tions were sometimes made through agents. There was 
 also some evidence that the form of the bought note 
 would have excited the suspicions of an expert, though 
 there was other evidence (and the House held on the 
 facts) that there was nothing to excite the suspicions of 
 an ordinary prudent man of business. The broker never 
 obtained the securities, and shortly afterwards became 
 insolvent, and the trust money was absolutely lost. In 
 an action to compel the trustee to make good the loss 
 
 L 
 
146 
 
 POWER OF TRUSTEES TO 
 
 with interest at four per cent, the House of Lords decided 
 (affirming the decision of the Court of Appeal) that he 
 was not liable. 
 
 non potest 
 delegare. 
 
 Principle 
 of Ex parti 
 Belchier. 
 
 The maxim delegatus non potest delegare only applies to trustees, 
 subject to important exceptions. These exceptions have grown more 
 numerous as the use of agents has been introduced more and more 
 into business transactions, and the equitable principle which now 
 prevails is summed up in Speight v. Gaunt, and the second section of the 
 Trustee Act, 1893, cited in the Note. In delivering the judgment of 
 the Court of Appeal, which was affirmed by the House of Lords, Sir 
 George Jessel, in an oft-quoted passage (22 Ch. D. 727, 746), expressed 
 the equitable principle thus : — 
 
 "My view has always been this, that where you have an honest 
 trustee, fairly anxious to perform his duty, and to do as he thinks best 
 for the estate, you are not to strain the law against him to make him 
 liable for doing that which he has done, and which he believes is right, 
 in the execution of his duty, without you have a plain case made 
 against him. In other words, you are not to exercise your ingenuity, 
 which it appears to me that the Vice-Chancellor has done, for the 
 purpose of finding reasons for fixing a trustee with liability, but you 
 are rather to avoid all such hypercriticism of documents and acts, and 
 to give the trustee the benefit of any doubt or ambiguity which may 
 appear in any document, so as to relieve him from the liability with 
 which it is sought to fix him. I think it is the duty of the Court in, 
 these cases, where there is a question of nicety as to construction or 
 otherwise, to lean to the side of the honest trustee, and not to be 
 anxious to find fine and extraordinary reasons for fixing him with any 
 liability upon the contract. You are to endeavour as far as possible, 
 having regard to the whole transaction, to avoid making an honest 
 man, who is not paid for the performance of an unthankful office, 
 liable for the failure of other people from whom he receives no benefit ; " 
 and he added, " I think that is the view which has been taken by 
 modern judges, and some of the older cases in which a different view 
 has been taken would now be repudiated with indignation." 
 
 The House of Lords in their judgment recognized with approval the 
 rule laid down by Lord Chancellor Hardwicke more than 130 years 
 before in Ex parte Belchier (Amb. 218), which was according to Lord 
 Blackburn (9 App. Cas. 19), that " where there is a usual course of 
 business, the trustee is justified in following it, though it may be such 
 that there is some risk that the property may be lost by the dishonesty 
 or insolvency of an agent employed ; " and he added, " What was at 
 one time the usual course may at another time be no longer usual," 
 illustrating his point by the practice of crossing cheques, which had 
 arisen within living memory, and applying it to the present case. On 
 the other hand the rule to which Speight v. Gaunt is an exception 
 still holds; and nothing in this case or in any statute " authorizes," in 
 
APPOINT AGENTS, ETC. 
 
 147 
 
 Lord Selborne's words (p. 5), " a trustee to delegate at his own mere 
 will and pleasure the execution of his trust, and the care and custody 
 of trust moneys to strangers in any case in which (to use Lord Hard- 
 wicke's words) there is no ' moral necessity from the usage of mankind ' 
 for the employment of such an agency." 
 
 I. The decision in Speight v. Gaunt enables trustees to do certain 
 things which the terms of their trust do not expressly authorize : 
 
 First, as to the custody of trust funds, trustees ought not to instruct 
 a stockbroker or other agent to seek an investment and then deposit 
 their money with the agent until the investment is found. Yet when 
 the investment is found they may deposit the money with the agent 
 if and so long as that is customary and reasonable. Under the peculiar 
 circumstances of this case the money was deposited with the stock- 
 broker for over four weeks. Compare Bullock v. Bulloch (56 L. J. Oh. 
 221) ; as to bankers, see Gough v. Etty (20 L. T. 358) and Godefroi's 
 Law of Trusts, 2nd ed. p. 237. 
 
 Secondly, as to information and advice given by the agent, — trustees 
 ought not to pay the purchase money to the broker in the case of 
 stock issued to the purchaser direct, yet if they do not know that 
 the stock is of this description, they are entitled to rely on their 
 broker's representation that the money is payable through him. The 
 leading case applies not only to acts done but to information and 
 advice given by the agent. 
 
 All this applies mutatis mutandis to other professional agents 
 besides stockbrokers, and it is always subject to the qualification that 
 jjhe agents must not be employed out of the ordinary scope of their 
 business : Fry v. Tapson (28 Ch. D. 268). 
 
 In that case the trustees had, at the suggestion of their solicitor, 
 and without exercising an independent judgment, employed a valuer 
 who was the agent of the mortgagor, and made an inflated report ; the 
 trustees acted upon it, and were held liable for the loss thus occasioned. 
 It is not the ordinary business of a solicitor to choose a valuer for 
 trustees intending to invest trust money on mortgage. It was proved 
 by the evidence of eminent solicitors in Fry v. Tapson that the 
 ordinary course is for a solicitor, if asked to name a valuer, to submit 
 a name or names to the trustees and to tell them everything which 
 the solicitor knows to guide their choice, but to leave the choice to 
 the trustees. (The decision in this case that a local valuer ought to 
 have been employed is superseded by the Trustee Act, 1893, s. 8, 
 re-enacting 51 & 52 Vict. c. 59, s. 4.) And see as to valuations, In 
 re Olive (34 Oh. D. 70) ; In re Partington (57 L. T. 654). In In re 
 Weall (42 Oh. D. 674) the position of a trustee with regard to the 
 employment of agents was described as follows : — 
 
 " Consider for a moment the position of that special agent called a 
 trustee as regards the employment of sub-agents. He certainly has 
 the right to appoint them, if and so far as the work of the trust 
 reasonably requires. For instance, he may appoint a broker to make 
 or realize investments, or a solicitor to do legal business, and the 
 
 I. Enlarge- 
 ment of 
 trustees' 
 powers. 
 
 Custody of 
 trust funds 
 by agent. 
 
 Advice by 
 agent. 
 
 Employ- 
 ment of 
 agents 
 within the 
 scope of 
 their pro- 
 fession. 
 
148 
 
 POWER OF TRUSTEES TO 
 
 Statutory 
 indemnity. 
 
 II. Qualifi- 
 cation of 
 trustees' 
 powers. 
 
 Mortgages 
 bytrustees. 
 
 power of employment involves that of remuneration at the cost of 
 the trust estate. The limit of the power of employment is, as 
 pointed out in the well-known case of Speight v. Gaunt, reason- 
 ableness, and whether there happens to he a standard to which appeal 
 can be made by taxation or otherwise or not, reasonableness must 
 also, I think, be the limit of the power of remuneration. A trustee is 
 bound to exercise discretion in the choice of his agents, but so long 
 as he selects persons properly qualified he cannot be made responsible 
 for their intelligence or their honesty. He does not in any sense 
 guarantee the performance of their duties. It does not, however, 
 follow that he can intrust his agents with any duties which they are 
 willing to undertake, or pay them, or agree to pay them, any remune- 
 ration which they see fit to demand. The trustee must consider these 
 matters for himself, and the Court would be disposed to support any 
 conclusion at which he arrives, however erroneous, provided it really 
 is his conclusion ; that is, the outcome of such considerations as might 
 reasonably be expected to be given to a like matter by a man of 
 ordinary prudence, guided by such rules and arguments as generally 
 guide such a man in his own affairs. If trustees fail to exercise their 
 discretion, or purporting to exercise it do so in such a manner that 
 the Court is bound to infer that they have not done so honestly, their 
 costs of any proceedings challenging their accounts are taken out of 
 the rules laid down in lurner v. Hancock (20 Ch. D. 303) and Stottv. 
 Milne (25 Ch. D. 710), and the Court is at liberty, and under certain 
 circumstances may be bound, for the protection of cestuis que trustent, 
 to disallow the trustees' costs or even make them pay those of others." 
 
 It has been held in In re Brier (26 Ch. D. 238), that the effect of 
 the statutory indemnity conferred upon trustees by sect. 31 of 22 & 23 
 Vict. c. 35, and re-enacted by sect. 24 of the Trustee Act, 1893, is that 
 when an executor or trustee has properly employed an agent, and a 
 loss has been occasioned, the burden of proof is thrown on those who 
 seek to charge him. 
 
 It was held in Jobson v. Palmer ([1893] 1 Ch. 71) that the same 
 rule applies whether a trustee is or is not remunerated for his services. 
 
 II. The decision in Speight v. Gaunt prevents trustees from doing 
 what the terms of their trust apparently authorize. A trustee must 
 take " in managing trust affairs all those precautions which an ordinary 
 prudent man of business would take in managing similar affairs of 
 his own " (9 App. Cas. 19). Consequently when investing money on 
 mortgage he ought to appoint a valuer and allow the one-third margin 
 prescribed by sect. 8 of the Trustee Act, 1893, which has incorporated 
 what was once known as the " two-thirds rule " of equity. This two- 
 thirds rule still holds good in cases where the trustee does not adopt 
 the precautions indicated by the Act, and is stated by Lewin on 
 Trusts, 9th ed. p. 357, as follows : — " Trustees could not be advised 
 to advance more than two-thirds of the actual value of the estate if 
 it were freehold land, and if the property consist of freehold houses 
 they should not lend so much as two-thirds, but say one-half the 
 
APPOINT AGENTS, ETC. 
 
 149 
 
 tive securi- 
 ties. 
 
 actual value." The rule, however, of two-thirds, or one-half, is " only 
 a general one, and where trustees have lent on the security of property 
 of less value, but acted honestly, they have been protected by the 
 Court and allowed their costs. ... As to buildings used in trade, and 
 the value of which must depend on external and uncertain circum- 
 stances, trustees would not in general be justified in lending so much 
 as one-half: " see Budge v. Oummow (L. R. 7 Ch. 719). But this rule 
 is not compulsory. In In re Godfrey, Godfrey v. Faulkner (23 Ch. 
 D. 483), Bacon, V.C., said that the rule had never been applied with 
 mathematical strictness, and declined to apply it to a case where a farm 
 had become unlettable and unsaleable owing to unfavourable weather, 
 and had not been valued for the purposes of the mortgage. 
 
 In the following cases the investments were disallowed for other 
 reasons than the two-thirds rule : — 
 
 In Smethurst v. Hastings (30 Ch. D. 490), it was held that trustees Specula- 
 who had invested money on the security of sub-mortgages of lease- 
 hold houses which were unfinished and unlet, were liable to make 
 good the loss. These houses, said Bacon, V.C., " were of merely 
 speculative value, not of readily marketable value." Compare Blyth 
 Fladgate ([1891] 1 Ch. 337, 354). 
 
 In In re Whiteley, Whiteley v. Learoyd (33 Ch. D. 347 ; 12 App. Cas. 
 727), trustees, though advised by a competent solicitor and a com- 
 petent surveyor, were held liable for loss occasioned by an investment 
 on freehold brickfield and works. The sum advanced was less than 
 one-half of the valuation, but the House of Lords held that the 
 trustees were not justified in lending trust funds on that which was 
 practically a speculative trading adventure. Compare In re Walker 
 (59 L. J. Ch. 386). 
 
 In Knox v. Mackinnon (13 App. Cas. 753), the trustees, who were 
 authorized to invest, and invested on real and personal security, were 
 held liable on the ground that they had not acted with perfect im- 
 partiality as between the beneficiaries, and had not brought to the 
 management of the trust affairs the same care and diligence that a 
 man of ordinary prudence would have exercised in his own affairs, 
 although their trust deed contained a clause of immunity for "omissions, 
 errors, or neglect of management." See also Bae v. Meek (14 App. 
 Cas. 558), and chapter on " Discretionary Trusts," ante, pp. 139, 140. 
 
 III. Many other minor rules are derived from the general principle, Miscel- 
 out of which we select the following, which are summed up thus in * aneous » 
 Geare's Investment of Trust Funds, p. 115 : — 
 
 1. In the investment of trust funds the trustees should never employ 
 the solicitor who acts for the borrower : Waring v. Waring (3 Ir. Ch. 
 Rep. 331). Compare Sheffield, etc., Society v. Aizlewood (44 Ch. D. 
 412, 457). 
 
 2. Trustees when entertaining the question of investment, should 
 not favour the tenant for life at the expense of the remaindermen: 
 Tickner v. Old (L. R. 18 Eq.-422), Knox v. Mackinnon (supra). 
 
 3. Any conditions annexed to the power to invest or vary investments 
 
150 
 
 POWER OF TRUSTEES TO 
 
 Applica- 
 tion to the 
 Court for 
 advice. 
 
 should be observed strictly : Bateman v. Davis (3 Mad. 98) ; In re 
 Massingherd's Settlement (63 L. T. 296) ; but see Stevens v. Robertson 
 (37 L. J. Ch. N.S. 499). 
 
 4. Trustees should avoid making any investment which subjects the 
 trust funds to the control of any one of the trustees singly : Consterdine 
 v. Consterdine (31 Beav. 330) ; Lewis v. Nobis (8 Ch. D. 591) ; In 
 re Evans (26 Ch. D. 58) ; Field v. Field ([1894] 1 Ch. 425). 
 
 It may be here noticed that trustees and executors are enabled by 
 E. S. C, 1883, 0. lv., r. 3 (g), to [apply to a judge of the Chancery 
 Division by originating summons for the determination of any ques- 
 tion arising in the administration of the estate or trust. 
 
 As to the question of trustees acting under advice of counsel, see 
 leading case, Stott v. Milne (post, p. 160). 
 
 Note.— Trustee Act, 1893. 
 
 Receipt of Sect. 17 provides (1) that a trustee may appoint a solicitor to be 
 
 money by bis agent to receive and give a discharge for any money or any 
 
 solicitor as va i ua ]ji e consideration or property receivable by the trustee under 
 
 ' the trust by permitting the solicitor to have the custody of, and to 
 
 produce, a deed containing any such receipt as is referred to in the 
 
 44 & 45 fifty-sixth section of the Conveyancing and Law of Property Act, 
 
 Vict. c. 41. 1881; and a trustee shall not be chargeable with breach of trust by 
 
 reason only of bis having made or concurred in making any such 
 
 appointment; and the producing of any such deed by the solicitor 
 
 shall have the same validity and effect, under the said section, as if 
 
 the person appointing the solicitor had not been a trustee. (A trustee's 
 
 attorney may not appoint an agent under this section : In re Hetling 
 
 and Merton's Contract ([1893] 3 Ch. 269, 280).) 
 
 (2) A trustee may appoint a banker or solicitor to be his agent to 
 receive and give a discharge for any money payable to the trustee 
 under or by* virtue of a policy of assurance by permitting the banker 
 or solicitor to have the custody of, and to produce the policy of 
 assurance with a receipt signed by the trustee, and a trustee shall 
 not be chargeable with a breach of trust by reason only of his having 
 made or concurred in making any such appointment. 
 
 (3) Nothing in this section shall exempt a trustee from any liability 
 which he would have incurred if this Act had not been passed in case 
 he permits any such money, valuable consideration, or property lo 
 remain in the hands or under the control of the banker or solicitor 
 for a period longer than is reasonably necessary to enable the banker 
 or solicitor to pay or transfer the same to the trustee. 
 
 (4) This section applies only where the money or valuable con- 
 sideration or property is received after the 24th day of December, 
 1888. 
 
 This section replaces sect. 2 of the Act of 1888, which altered the 
 law as laid down in In re Bellamy (24 Ch. D. 387) ; followed in In re 
 Flower (27 Ch. D. 592). 
 
APPOINT AGENTS, ETC. 
 
 151 
 
 ' Sect. 8. — (1) A trustee lending money upon the security of any 
 property on which he can lawfully lend, shall not be chargeable with 
 breach of trust by reason only of the proportion borne by the 
 amount of the loan to the value of the property at the time when 
 the loan was made, provided that it appears to the Court that in 
 making the loan the trustee was acting upon a report as to the 
 value of the property made by a person whom he reasonably 
 believed to be an able practical surveyor or valuer, instructed and 
 employed independently of any owner of the property, whether such 
 surveyor or valuer carried on business in the locality where the 
 property is situate or elsewhere, and that the amount of the loan 
 does not exceed two equal third parts of the value of the property as 
 stated in the report, and that the loan was made under the advice of 
 the surveyor or valuer expressed in the report. 
 
 (2) A trustee lending money on the security of any leasehold 
 property shall not be chargeable with breach of trust only upon the 
 ground that in making such loan he dispensed, either wholly or partly, 
 with the production or investigation of the lessor's title. 
 
 (3) A trustee shall not be chargeable with breach of trust only 
 upon the ground that, in effecting the purchase of, or in lending 
 money upon the security of, any property, he has accepted a shorter 
 title than the title which a purchaser is, in the absence of a special 
 contract, entitled to require, if in the opinion of the Court the title 
 accepted be such as a person acting with prudence and caution would 
 have accepted. 
 
 (4) This section applies to transfers of existing securities as well as 
 to new securities, and to investments made as well before as after the 
 commencement of this Act, except where an action or other proceeding 
 was pending with reference thereto on the 24th day of December, 1888. 
 
 Sect. 9. — (1) Where a trustee improperly advances trust money on 
 a mortgage security which would at the time of the investment be a 
 proper investment in all respects for a smaller sum than is actually 
 advanced thereon, the security shall be deemed an authorized invest- 
 ment for the smaller sum, and the trustee shall only be liable to make 
 good the sum advanced in excess thereof with interest : In re Salmon 
 (42 Ch. D. 351) ; In re Somerset ([1894] 1 Ch. 231). 
 
 (2) This section applies to investments made as well before as after 
 the commencement of this Act, except- where an action or other pro- 
 ceeding was pending with reference thereto on the 24th day of 
 December, 1888. 
 
 Sect. 45.— (1) Where a trustee commits a breach of trust at the 
 instigation or request or with the consent in writing of a beneficiary, 
 the High Court may, if it thinks fit, and notwithstanding that the 
 beneficiary may be a married woman entitled for her separate use, 
 and restrained from anticipation, make such order as to the Court 
 seems just for impounding all or any part of the interest of the 
 beneficiary in the trust estate by way of indemnity to the trustee 
 or person claiming through him : JRicketts v. BicJcetts (64 L. T. 263) ; 
 
 Loans by 
 Trustees. 
 Valuation. 
 
 Lessor's 
 title not 
 produced. 
 
 Special 
 conditions. 
 
 Liability 
 for loss by 
 reason of 
 improper 
 invest- 
 ments. 
 
 Indemnity 
 for breach 
 of trust. 
 
152 POWER OF TRUSTEES TO 
 
 Griffith v. Hughes ([1892] 3 Oh. 105) ; In re Somerset {supra) ; Bolton 
 v. Ourre ([1895] 1 Ch. 544). A similar right exists independently of 
 statute : see Chittingworth v. Chambers ([1896] 1 Ch. 685), where the 
 cestui que trust was co-trustee, and cases cited there. 
 
 (2) This section shall apply to breaches of trust committed as well 
 
 before as after the passing of this Act, but shall not apply so as to 
 
 prejudice any question in an action or other proceeding which was 
 
 pending on the 24th day of December, 1888, and is pending at the 
 
 commencement of this Act. 
 
 List of Sect. 1. — A trustee may, unless expressly forbidden by the instru- 
 
 authonsed ment (if any ) cre ating the trust, invest any trust funds in his hands, 
 
 ments" whether at the time in a state of investment or not, in the manner 
 
 following, that is to say : — 
 
 (as.) In any of the parliamentary stocks or public funds or govern- 
 ment securities of the United Kingdom : 
 
 See In re Manchester Royal Infirmary (43 Ch. D. 420) ; 
 
 In re National Permanent Building Society (43 Ch. D. 
 
 431) ; In re Owthwaite ([1891] 3 Ch. 494) ; and In re 
 
 Dick ([1891] 1 Ch. 423; [1892] A. C. 112). 
 
 (b.) On real or heritable securities in Great Britain or Ireland : see 
 
 sect. 5 (1) (a). 
 (c.) In the stock of the Bank of England or the Bank of Ireland : 
 (d.) In India three and a half per cent, stock and India three per 
 cent, stock, or in any other capital stock which may at any 
 time hereafter be issued by the Secretary of State in Council 
 of India, and under the authority of Act of Parliament and 
 charged on the revenues of India : 
 (e.) In any securities the interest of which is for the time being 
 
 guaranteed by Parliament : 
 (/.) In consolidated stock created by the Metropolitan Board of 
 Works, or by the London County Council, or in debenture 
 stock created by the receiver for the Metropolitan Police 
 District : 
 (g.) In the debenture or rent-charge or guaranteed or preference 
 stock of any railway company in Great Britain or Ireland 
 incorporated by special Act of Parliament, and having during 
 each of the ten years last past before the date of investment 
 paid a dividend at the rate of not less than three per cent, 
 per annum on its ordinary stock : 
 (h.) In the stock of any railway or canal company of Great Britain 
 or Ireland whose undertaking is leased in perpetuity or for a 
 term of not less than two hundred years at a fixed rental to 
 any such railway company as is mentioned in sub-sect, (gr) 
 either alone or jointly with any other railway company : 
 («.) In the debenture stock of any railway company in India the 
 interest on which is paid or guaranteed by the Secretary of 
 State in Council of India : 
 (/.) In the " B " Annuities of the Eastern Bengal, the East Indian 
 
APPOINT AGENTS, ETC. 153 
 
 and the Scinde, Punjaub and Delhi Railways and any like 
 annuities which may at any time hereafter be created on the 
 purchase of any other railway by the Secretary of State in 
 Council of India, and charged on the revenues of India, 
 and which may be authorized by Act of Parliament to be 
 accepted by trustees in lieu of any stock held by them in 
 the purchased railway ; also in deferred annuities comprised 
 in the register of holders of annuity Class D, and annuities 
 comprised in the register of annuitants Class C of the East 
 India Railway Co. : 
 
 (k.) In the stock of any railway company in India upon which a 
 fixed or minimum dividend in sterling is paid or guaranteed 
 by the Secretary of State in Council of India, or upon the 
 capital of which the interest is so guaranteed : 
 
 (I.) In the debenture or guaranteed or preference stock of any 
 company in Great Britain or Ireland, established for the 
 supply of water for profit, and incorporated by special Act 
 of Parliament or by royal charter, and having during each of 
 the ten years last past before the date of investment paid a 
 dividend of not less than five pounds per cent, on its 
 ordinary stock : 
 
 (m.) In nominal or inscribed stock issued, or to be issued, by the 
 corporation of any municipal borough, having according to 
 the returns of the last census prior to the date of investment 
 a population exceeding fifty thousand, or by any county 
 council, under the authority of any Act of Parliament or 
 Provisional Order: 
 
 («.) In nominal or inscribed stock issued, or to be issued, by any 
 Commissioners incorporated by Act of Parliament for the 
 purpose of supplying water, and having a compulsory power 
 of levying rates over an area having, according to the returns 
 of the last census prior to the date of investment, a popula- 
 tion exceeding fifty thousand, providing that during each of 
 the ten years last past before the date of investment the 
 rates levied by such Commissioners shall not have exceeded 
 eighty per cent, of the amount authorized by law to be 
 levied : 
 
 (o.) In any of the stocks, funds, or securities, for the time being 
 authorized for the investment of cash under the control or 
 subject to the order of the Court. See R. S. C. [1883], 0. 
 xx ii. , r. 17. 
 
 And also from time to time may vary any such investment. 
 
 Sect. 2 of the Act provides that (1) a trustee may under the Purchase at 
 powers of this Act invest in any of the securities mentioned or a premium, 
 referred to in sect. 1 of this Act; notwithstanding that the same 
 may be redeemable, and that the price exceeds the redemption 
 value. 
 
 (2) Provided that a trustee may not under the powers of this 
 
154 POWER OF TRUSTEES TO APPOINT AGENTS. 
 
 Varying in 
 vestments, 
 
 for benefit 
 of tenant 
 for life. 
 
 Procedure. 
 
 Act purchase at a price exceeding its redemption value any stock 
 mentioned or referred to in sub-sects, (g), (i), (k), (J), and (m), which 
 is liable to be redeemed within fifteen years of the date of purchase at 
 par, or at some other fixed rate, or purchase any such, stock as is 
 mentioned or referred to in the sub-sections aforesaid which is liable 
 to be redeemed at par or at some other fixed rate at a price exceeding 
 fifteen per cent, above par or such other fixed rate. 
 
 (3) A trustee may retain until redemption any redeemable stock, 
 fund, or security which may have been purchased in accordance with 
 the powers of this Act. 
 
 Sect. 3. — Every power conferred by the preceding sections shall be 
 exercised according to the discretion of the trustee, but subject to any 
 consent required by the instrument (if any), creating the trust with 
 respect to investment of the trust funds. 
 
 Provisions are also contained in sects. 5 and 19, which enlarge a 
 trustee's power of investing on mortgages for long terms, and of 
 renewing leaseholds, etc. And note that by sect. 4 of the Trustee 
 Act (1893) Amendment Act, 1894, a trustee is not liable for continuing 
 investments in securities which have ceased to be authorized : In re 
 Chapman ([189 fi] 1 Ch. 323). Contrast In re Tucker, Tucker v. 
 Tucker ([1894] 1 Ch. 724, and 3 Ch. 429). 
 
 The National Debt {Conversion) Act, 1888 (51 & 52 Vict. c. 2, 
 s. 27), contains the following provision authorizing trustees to invest 
 in manner therein mentioned, notwithstanding a prohibition in the 
 instrument creating the trust : — 
 
 " When any stock converted or exchanged by virtue of this Act 
 into new stock is held by a trustee, such trustee shall be at liberty to 
 sell the same, and to invest the proceeds arising from such sale in any 
 of the securities for the time being authorized for the investment of 
 cash under the control of the High Court, notwithstanding anything 
 to the contrary contained in the instrument creating the trust." 
 
 As a general rule a power to invest carries with it the power to 
 vary the investments : In re Clergy Orphan Corporation (L. It. 18 
 Eq. 280). 
 
 It was decided in In re Dick (ubi supra), that the words in the 
 Trustee Act, 1893, " to vary any such investment," are not confined 
 to investments made under the power given by the Act, but extend 
 to any investment whenever made, upon any such stocks, funds, or 
 securities as are mentioned iu the section. 
 
 The following observations of Lord Justice Kay in the same case 
 are also important : — " Trustees must bear in mind that the duty 
 of a trustee when he is called upon to change an existing investment 
 is an important duty, and that it would not be a proper exercise of 
 his discretion to change the investment merely for the sake of in- 
 creasing the income of the tenant for life if in doing so he diminishes 
 the security of the capital fund." Compare In re Owthwaite, 
 Owthwaite v. Taylor ([1891] 3 Ch. 494). 
 For procedure see E. S. C. 1883, 0. liv. B. 
 
FRAUD ON A POWER. 155 
 
 Fraud on a Power. 
 
 HENTY v. WREY. 
 
 (21 Oh. D. 332.) 
 
 There is no rule of law that every power for raising Principle. 
 portions for children is subject to the qualification 
 that the portions are not raisable under it unless the 
 children live to want them. 
 
 The Court will not infer that an appointment is a 
 fraud upon a power unless there are such cogent facts 
 that it cannot reasonably come to any other conclusion. 
 
 Sir B. P. Wrey had a power under a settlement to Summary 
 charge portions for younger children on real estate, and 
 to fix the ages and times at which the portions should 
 vest and be payable. In 1828 he made a revocable 
 appointment of £10,000 to his three daughters, aged 
 nine, seven, and one respectively, the portions to vest 
 at once and to be paid in such shares and at such time 
 as he should thereafter appoint, and in default of 
 appointment in equal shares; four years afterwards he 
 appointed that the portions of his three daughters should 
 vest at once, but should be paid as mentioned in the 
 deed of 1828. Two of the daughters having died infants 
 and spinsters, one in 1836 and the other in 1845, 
 Sir B. P. Wrey in 1851 appointed £5000 to his surviv- 
 ing daughter, and subsequently assigned the other 
 £5000 by way of mortgage to Henty. Held, by the 
 Court of Appeal, that Henty was entitled to have 
 the £5000 raised. 
 
156 
 
 FRAUD ON A POWER. 
 
 Principle of 
 Aleyn v. 
 Belchier. 
 
 Of Lord 
 Sinchin- 
 troke v. 
 Seymour. 
 
 Fraud not 
 to be pre- 
 sumed. 
 
 Summary 
 of the law 
 by Lindley, 
 L.J. 
 
 The old case of Aleyn v. Belchier (1 Eden. 132), decided in 1758, 
 proceeded upon the principle that " no point is better established than 
 that a person having a power of appointment must execute it bona fide 
 for the end designed, otherwise it is corrupt and void." The main 
 question in the leading case was whether there was a general rule 
 which compelled the Court to set aside an appointment of a charge 
 on realty not on the ground of actual fraud, but on the ground that 
 the power is a discretionary trust, that it is contrary to the nature of 
 the trust to make an appointment so as to vest portions in children of 
 tender years. The Court of Appeal pointed out that plainer or more 
 emphatic words, authorizing a direction that the portions should vest 
 a't any time which the appointor should think fit, could not be 
 imagined. On the words there could be no question that the parties 
 to the settlement intended that the appointor (acting of course bona 
 fide) should be the judge of the period at which the portions should 
 vest. The rule contended for was opposed to principle, " the principle 
 being that such contracts or settlements are to have effect given to 
 them according to the intention," and opposed also to the modern 
 rules of construction. 
 
 Sir G. Jessel, M.R., then traced this alleged rule to dicta in Lord 
 Einchinbrohe v. Seymour (1 Bro. C. C. 395), which had not been 
 followed, and he adopted the view of this case which was expressed 
 by Lord Eldon in M' Queen v. Farquhar (11 Vesey, 467) : " In Lord 
 Sandwich's case" (Lord Hinchinbroke became Lord Sandwich), "a 
 father having a power of appointment, and thinking one of his 
 children was in a consumption, appointed in favour of that child. 
 And the Court was of opinion that the purpose was to take the 
 chance of getting the money as administrator of that child " (p. 479). 
 The facts of this case were totally different. Indeed, here there were 
 cogent reasons for making the portions vest at once, for otherwise 
 the children would be left without provision, and there would be 
 no fund available for their maintenance and advancement. " When 
 you see," said Jessel, M.E., " that there was a reason for appointing 
 portions, and making them vest immediately, with a view to the 
 benefit of the children, you are not to impute to the father an 
 intention to commit a fraud upon the power." 
 
 The law established by the cases was summoned up by Lindley, 
 L. J., in the following five propositions : — 
 
 1. That powers to appoint portions charged on land ought, if their 
 language is doubtful, to be construed so as not to authorize appoint- 
 ments vesting those portions in the appointees before they want them, 
 that is, before they attain twenty-one or (if daughters) marry. 
 
 2. That where the language of the power is clear and unambiguous 
 — effect must be given to it. 
 
 3. That where upon the true construction of the power and the 
 appointment, the portion has not vested in the lifetime of the appointee 
 the portion is not raisable, but sinks into the inheritance. 
 
 4. That where upon the true construction of both instruments the 
 
FRAUD ON A POWER. 157 
 
 portion has vested in the appointee, the portion is raisable even 
 although the appointee dies under twenty-one or (if a daughter) 
 unmarried. 
 
 5. That appointments vesting portions charged on land in children 
 of tender years who die soon afterwards are looked at with suspicion ; 
 and very little additional evidence of improper motive or object 
 will induce the Court to set aside the appointment or treat it as 
 invalid, hut that without some additional evidence the Court cannot 
 do so. 
 
 In the following examples illustrative of the existing law on Classified 
 the subject, it is assumed that A. B. has given a special power of . ' ustl ' a_ 
 appointment among children to C. D., and C. D. appoints either (1) 
 to children and others, or (2) to children with a charge, (3) direction, 
 or (4) condition in favour of others, or (5) under an agreement to 
 resettle on themselves and others. The first four dispositions, if 
 severable, stand in so far as they affect children, unless the appoint- 
 ment is not fairly and honestly made ; for, as was said in Duke of 
 Portland v. Topham (11 H. L. C. 32), " A party having a power like 
 this (i.e. a limited power) must fairly and honestly execute it without 
 having any ulterior object to be accomplished. He cannot carry into 
 execution any indirect object or acquire any benefit for himself either 
 directly or indirectly. The fifth fails wholly if the appointment is 
 induced " by the agreement " (see In re Turner's Settled Estates (28 
 Ch. D. 205)), or if " the appointment would not have been made but 
 for the bargain : '" Pryor v. Pryor (2 D. J. & S. 205). In the 
 following examples the dispositions take effect as though the words in 
 square brackets had never been written and "election" cannot take 
 place : — 
 
 (1.) — (a) C. D. appoints to trustees for a child : Thornton v. Bright Appoint- 
 (2 My. & Cr. 230) ; but see Bush v. Adlarn (19 Eq. 16) ; In re Tyssen ^children 
 ([1894] 1 Ch. 56). and C otheir 
 
 (6) C. D. appoints part to children [part to strangers] : Alexander 
 v. Alexander (2 Ves. Sen. 640, 644) ; ditto where children are made 
 joint tenants with [strangers] of personalty : In re Kerr's Trusts (4 
 Ch. D. 600). 
 
 (c) C. D. appoints part to children and part to a child on trust for 
 another child for life, then [for strangers, then] contingently to a 
 child : Alexander v. Alexander (ubi supra) ; aiid see In re Kerr's 
 Trusts (4 Ch. D. 600) ; Brown's Trusts (1 Bq. 74). 
 
 (d) C. D. appoints part to children [part to strangers, and in case the 
 children will not share with the strangers, the whole is to go to two 
 children] [payment to be made at twenty-five years of age] : Sadler v. 
 Pratt (5 Sim. 632). 
 
 (e) C. D. appoints part [to a child, such part to he held by 
 strangers on trust for him for life, remainder to strangers ; in case this 
 is invalid] ■ to another child : In re Craivshay (43 Ch. D. 615) 
 (see (j>)). 
 
 (/) C. D. appoints to a child for life, remainder [to a stranger, E. F., 
 
158 
 
 FRAUD ON A POWER. 
 
 (2.) to 
 children 
 with 
 
 charges in 
 favour of 
 others ; 
 
 (3.) or 
 directions 
 in favour 
 of others ; 
 
 (4.) or 
 conditions 
 
 when twenty-one; but] if E. P. dies under twenty-one to another 
 child : Long v. Ovenden (16 Ch. D. 691). In this case B. F. was an 
 infant at the child's death, and the interest had consequently to be 
 accumulated during his infancy. 
 
 (g) 0. D. appoints land by will to a child for life, and [with 
 remainder to] his issue in tail. The child takes an estate tail by the 
 cy-pres doctrine : Line v. Hall (43 L. J. Ch. 107). Compare Pitt v. 
 Jackson (2 Bro. C. C. 51). 
 
 (h) C. D. appoints personalty or realty [to a stranger for life, and] 
 after his death to a child : Dictum in Orozier v. Crosier (3 D. & W. 
 353, 365). 
 
 («') C. D. appoints to his (healthy) child, aged three, which dies 
 shortly after, so that the father takes : Beere v. Hoff mister (23 Beav. 
 101). 
 
 (/) [C. D. appoints to her child in order that she and its father 
 may bring presumptive undue influence to bear on it and the father 
 may get it] : In re Marsden's Trusts (4 Drew. 594). (Sed quosre, for 
 the father would not get it if presumptive or actual undue influence 
 were used.) 
 
 (k) [C. D. appoints to his child, who is mad and likely to die, 
 and dies soon] : Wellesley v. Earl of Mornington (2 K. & J. 143); 
 and see Lord Rinchinbroke v. Seymour, as cited above and in Eenty 
 v. Wrey (pp. 339-349). 
 
 (2.) — (I) C. D. appoints to a child charged with £3000 for other 
 children [and a stranger] : Bruce v. Bruce (11 Eq. 371). 
 
 (m) C. D. appoints [£100 to a stranger, and] the balance (£260) 
 [for payment of a stranger's debts, and the surplus] to a child : In re 
 Jeaffreson's Trusts (2 Eq. 276). Compare In re Harries^ Trust (Joh. 
 199). 
 
 (mm) C. D. appoints land to his children by will [charged with 
 C. D.'s debts], Oowx v. Foster (1 J. & H. 30), [and appoints £200 to 
 a child in order to pay C. D.'s debts] : Hay v. Wathins (3 Dr. & 
 W. 339). 
 
 (n) C. D. appoints [subject to any exercise of a delegated and 
 invalid power of appointment] to childrea : Garr v. Atkinson (14 Eq. 
 397) ; Webb v. Sadler (L. E. 8 Ch. 419), cited in In re Abbott ([1893] 
 1 Ch. 54, 57, 58). Compare In re Meredith's Trusts (3 Ch. D. 
 757). 
 
 3. — (o) C. D. appoints to children [and directs that their shares shall 
 be settled] : Churchill v. Churchill (5 Eq. 44); Woolridge v. Woolridge 
 (Joh. 63) : Watt v. Creyke (3 Sm. & G. 362). 
 
 (p) C. D. appoints to a child [" who I am assured will settle it 
 on another child and strangers "], and he does so settle it : In re 
 Crawshay (43 Ch. D. 615). See (e). 
 
 (pp) [C. D. appoints to a stranger, with directions to maintain the 
 children until twenty-one], then to children : Lloyd v. Lloyd (26 
 Beav. 96) ; Chester v. Chadwick (13 Sim. 102). 
 
 (4.) — (q) C. D. appoints to a child on condition that she makes certain 
 
FRAUD ON A POWER. 159 
 
 payments to other children, and, subject to an executory limitation, to in favour 
 other children should she refuse : Stroud v. Norman (Kay, 313). of otllers > 
 
 (qq) C. D. devises land [to a stranger for life], upon condition that 
 the children should be maintained out of the rents and should be paid 
 legacies out of the accumulations [the surplus income being impliedly 
 given to the stranger] : Orozier v. Grozier (3 Dr. & W. 353). 
 
 (r) C. D. appoints to a child [on condition that he release a debt or 
 pay. money to a stranger] : Alexander v. Alexander (2 Ves. Sen. 644). 
 (s) [0. D. appoints to two children on condition that they release a 
 debt due from C. D.'s estate], [and in case of refusal to a third child] : 
 In re Perkins, Perkins v. Bagot ([1893] 1 Ch. 283) ; Reid v. Reid (25 
 Beav. 469, 479) ; Rowley v. Rowley (Kay, 242). 
 
 (f) C. D. appoints to children [on condition and under an agreement 
 that they resettle the property on themselves and strangers], which 
 they do. C. D. had offered in Court to appoint without the condition 
 annexed : In re Turner's Settled Estates (28 Ch. D. 205). This was 
 not a marriage settlement. 
 
 5. — (u) [C. D. appoints to a child about to marry on usual trusts, (5.) or 
 but subject to a charge for C. D.'s second wife ; this is in pursuance of SUD J ect to 
 an agreement.] [Further, an appointment by will to the child men tt 
 absolutely is tainted by the agreement] : In re Eirwan's Trusts (25 Ch. benefit 
 D. 373) (where one appointment is bad, another to the same person others, 
 will lie under suspicion) ; Topharn v. Duke of Portland (L. R. 5 Ch. 40). 
 (v) C. D. (in 1863) appoints to a child not about to marry, and by 
 the same deed the property is resettled on the child and on strangers ; 
 the child disputed the resettlement, but executed the deed in 1871. 
 The resettlement was, until 1871, invalid : Roach v. Trood (3 Ch. D. 
 429). 
 
 (x) C. D. covenants to exercise a power by will and exercises it in 
 favour of the child : Bulteel v. Plummer (L. R. 6 Ch. 160) ; Palmer v. 
 Locke {15 Ch. D. 294). 
 
 {y) [C. D. appoints to children not about to marry, and they settle 
 the property immediately afterwards on themselves and strangers, and 
 in pursuance of an antecedent agreement with C. D.] : Pryor v. Pryor 
 (2 D. J. & S. 205). 
 
 (z) C. D. appoints to his or her children about to marry ; and the 
 child, or C. D. for the child, settles the property immediately after- 
 wards or in the same deed on usual settlement trusts : Routledge v. 
 Dorril (2 Ves. Jr. 357) ; ditto where the child is an infant daughter 
 before the Married Women's Property Act, 1882 : Fitzroy v. The 
 Duke of Richmond (27 Beav. 190). Compare p. 297. 
 
 An appointment is now valid, though (a) only a nominal share is illusory 
 given to one or more of the objects of the power : Illusory Appoint- and ex- 
 ments Act (1 Will. IV. c. 46) ; (6) and though an object of the power is cl " slTe a P" 
 altogether excluded : Powers Law Amendment Act (37 & 38 Vict. c. 
 37). The first Act was commented on in In re Capon's Trusts (10 Ch. D. 
 484) and Bulteel v. Plummer (L. R. 6 Ch. 162) ; the second in In re 
 Deakin ([1894] 3 Ch. 565), followed in In re Jeans (72 L. T. 835). 
 
160 
 
 TRUSTEES' COSTS. 
 
 Release of 
 powers. 
 
 Infants. 
 
 By sect. 52 of the Conveyancing Act, 1881, which' is retrospective, the 
 donee of a power, whether coupled with an interest or not, may by deed 
 release or contract not to excercise the power, and by sect. 6 of the 
 Conveyancing Act, 1882, a similar power is given to the donee to dis- 
 claim, and on such disclaimer the power may be exercised by the other 
 or others or the survivor of- the other or others of the donees, unless 
 the instrument creating the power expresses a contrary intention. 
 
 See Eyre v. Eyre (49 L. T. 259) ; Saul v. Pattinson (34 W. R. 561), 
 where it was held that a power which was exercisable by trustees and 
 was coupled with a duty could not be released ; but where the power 
 is not coupled with a duty it may be released, though some benefit 
 may thereby accrue to the donee; and the doctrine applicable to 
 fraudulent appointments does not apply: In re Somes, Smith v. Somes 
 ([1896] 1 Oh. 250) ; In re Radcliffe, Radcliffe v. Bewes ([1892] 1 Ch. 
 227) ; but see In re Little (40 Ch.' D. 418). 
 
 An infant may by deed exercise a collateral power over realty and 
 personalty, and a power in gross over personalty : In re D'Angibau 
 (15 Oh. D. 228) ; but not a power in gross over realty, see In re 
 Cardross' Settlement (7 Ch. D'. 728) ; and not a power appendant or 
 appurtenant. These different kinds of powers are defined in In re 
 D'Angibau (p. 232). As to power of appointing guardians, see ante,y. 93. 
 
 See Farwell on Powers, 2nd ed. pp. 293 et seq., 374-377, and ch. 10. 
 
 Trustees' Costs. 
 
 Principle. 
 
 STOTT v. MILNE. 
 
 (25 Ch. D. 710.) 
 
 The costs and expenses of trustees properly incurred 
 in the execution of a trust are a first charge on all the 
 trust property, both income and corpus. The fact that 
 counsel have advised, trustees to bring an action is not 
 conclusive that the action was properly brought, but the 
 Court will attach considerable importance to it. 
 
 of U f"t9 iy Stott, who was beneficially entitled for life to a certain 
 freehold estate of which Milne was trustee, brought an 
 action against Milne for an account of the rents, and the 
 
TRUSTEES' COSTS. 161 
 
 question arose whether the cost of two actions which 
 had been brought by Milne without Stott's authority, 
 but under the advice of counsel, for the protection of the 
 estate, ought to be allowed, and if so, whether Milne was 
 entitled to retain them out of the income of the estate. 
 The Court of Appeal, while holding that the actions were 
 not necessarily proper because advised by counsel, decided 
 that as they were brought bond fide and were beneficial 
 to the estate, the trustees were entitled not only to a 
 charge upon the corpus, but also to retain the income 
 until provision could be made for raising the costs out of 
 the estate. 
 
 The general principle on which cases of this kind are hased had Origin of 
 been thus stated by Lord Selborne in Cotlerell v. Stratton (L. R. 8 Ch. th J; t ™|.* in 
 295, 302), and cited in Turner v. Hancock (20 Oh. D. 303). "The C ° n laC ' 
 contract between mortgagor and mortgagee makes the mortgage a 
 security, not only for principal and interest and such ordinary charges 
 and expenses as are usually provided for by the instrument creating 
 the security, but also for the costs properly incident to a suit for. fore- 
 closure or redemption. In like manner the contract between the 
 author of a trust and his trustees entitles the trustees, as between 
 themselves and their cestuis que trustent to receive out of the 
 trust estate all their proper costs incident to the execution of the 
 trust." See leading case, National Provincial Bank of England v. 
 Games, post, p. 192. 
 
 In the leading case the Vice-Chancellor of the Lancaster Palatine Advice of 
 Court before whom the case originally came, decided that as the actions counsel, 
 were brought under the advice of counsel the costs must be raised and 
 paid out of the corpus of the estate, but that as they were brought 
 without the authority of Stott the costs were not chargeable against the 
 income, and he accordingly ordered the trustees to pay the plaintiff his 
 costs of the present action up to the hearing. There were then cross 
 appeals, one by the plaintiff with regard to the costs of the former 
 actions, and the other by the trustee with regard to the costs of the 
 present action. The Court of Appeal varied the decision of the Vice- 
 Chancellor in two points. 
 
 The reason given in the decree, that the actions were commenced 
 under the advice of counsel, was not a sufficient reason, and ought to 
 be varied. " I cannot say," said Lord Selborne, " that because an action 
 is advised by counsel it is always and necessarily one which trustees 
 may properly bring. The advice of counsel is not an absolute in- 
 demnity to trustees in bringing an action, though it may go a long 
 
 M 
 
162 
 
 TRUSTEES' COSTS. 
 
 Charge on 
 income as 
 well as 
 capital. 
 
 Trustee's 
 right to 
 indemnity 
 for agent's 
 tort. 
 
 Other 
 instances 
 of expenses 
 allowed, 
 
 way towards it." Compare In re Cull (L. R. 20 Eq. 561) ; In re 
 Beddoe, Downes v. Cottam ([1893] 1 Ch. 547, 551). 
 
 The second point decided in the trustee's favour was that he was 
 justified in retaining the costs out of the income, and that consequently 
 he ought to be allowed his costs of the action which had been brought 
 against him. The property, the Court said, was peculiarly circum- 
 stanced, as it was available for building purposes, and anything done 
 by tenants or neighbours which would give any other persons rights 
 over it, might cause a material depreciation in its value. The trustees 
 had, therefore, an anxious duty to perform. Under these circum- 
 stances the Court would require to be clearly satisfied that the actions 
 were improper to induce it to refuse costs out of the estate, and 
 accordingly they not only allowed the trustee his costs out of the 
 corpus of the estate, but also recognized his right of retainer as 
 against the income, and gave him his costs of the present action. 
 
 " The right of trustees," said Lord Selborne, " to indemnity against 
 all costs and expenses properly incurred by them in the execution of 
 the trust is a first charge on all the trust property, both income and 
 corpus. The trustees, therefore, had a right to retain the costs out of 
 the income until provision could be made for raising them out of the 
 corpus." 
 
 The principle that a trustee is entitled to indemnity out of the trust 
 estate is well illustrated by Benett v. Wyndham (4 D. F. & J. 259). 
 There a trustee, in the due execution of his trust, directed the bailiff 
 employed on the settled estate to have certain trees felled, timber 
 being wanted for roofing a barn on the estate. The bailiff ordered 
 the woodcutters usually employed on the estate to fell the trees. In 
 doing so they allowed a bough to fall on a passer-by, who brought an 
 action against the trustee and recovered heavy damages. 
 
 The Court of Appeal held, reversing the decision of the Court below, 
 that the trustee was entitled to indemnity out of the trust estate. 
 Lord Justice Knight Bruce, in delivering judgment, said, " The trustee 
 in this case appears to have meant well, to have acted with due 
 diligence, and to have employed a proper agent to do an act, the 
 directing which to be done was within the due discharge of his duty. 
 The agent makes a mistake the consequences of which subject the 
 trustee to legal liability to a third party. I am of opinion that this 
 liability ought as between the trustee and the estate to be borne by 
 the estate." 
 
 The principle that, in the words of the Trustee Act, 1893, s. 24, 
 a trustee " may reimburse himself or pay or discharge out of the trust 
 promise all expenses incurred in or about the execution of his trusts 
 or powers," is illustrated in the above cases by costs of unsuccessful 
 litigation (contrast In re Beddoe, Downes v. Cottam ([1893] 1 Ch. 
 547)), and damages in tort. The following expenses must also be 
 included amongst those which authorize a lien : — Travelling expenses, 
 costs of employing a solicitor or barrister, e.g. to oppose a private Bill : 
 Lewin on Trusts, 9th ed. p. 714; costs of defendiug an action brought 
 
TRUSTEES' COSTS. 163 
 
 to upset a compromise made for the benefit of the estate, although 
 the main question raised was the personal honesty of the trustee : 
 Walters v. Woodbridge (7 Ch. D. 504) ; payment of calls : Todd v. 
 Moorhouse (19 Bq. 69); Whittaker v. Kershaw (45 Oh. D. 320); 
 payment of insurance premiums : In re Leslie (23 Ch. D. 552) ; past 
 payments for maintenance : Brown v. Smith (10 Ch. D. 377); liabilities 
 in carrying on a business : Dowse v. Gorton ([1891] A. C. 190) ; In 
 re Brooke, Brooke v. Brooke ([1894] 2 Ch. 600) ; payment of debts 
 barred by the Statute of Limitations : Budgett v. Budgett ([1895] 
 1 Ch. 202). Probable future expenses of a similar kind will support 
 an action to declare trustees entitled to indemnity : Holbs v. Wayet 
 (36 Ch. D. 256), and cases cited there. 
 
 In all these cases the will or settlement sanctioned or the Court or dis- 
 approved of the payment. A payment of 5 per cent, commission al l° wed - 
 to a solicitor to collect rents, In re Weall, Andrews v. Weall (42 
 Ch. D. 674), and a similar payment to a proper rent-collector where 
 they themselves were remunerated for this service, was disapproved : 
 Cox v. Bennett (39 W. E. 308); and therefore there was no lien. 
 Nor is there a lien where a trustee is condemned in costs under 
 Order lxv. r. 1 (see below, Note). 
 
 The lien is inapplicable to property other thau property of which Extent and 
 the person who makes the payment is trustee : In re Earl of nature of 
 Winchilsea's Policy Trusts (39 Ch. D. 168). And it does not even the lien ' 
 apply to all that property ; for " it does not extend so far as to enable 
 them to apply all funds part of the property which they took in trust, 
 and of which they are not divested, in relief of expenses incurred on 
 behalf of a separate branch of the trust : " per Lord Blackburn in 
 Eraser v. Murdoch (6 App. Cas. 855, 873). In the case of liabilities 
 incurred in carrying on a testator's business the lien applies to assets 
 of the testator at and subsequent to his death : Bowse v. Gorton (ubi 
 supra). 
 
 The lien applies, however, in favour of third parties if third parties 
 have made any of these payments at the request of the trustee : In 
 re Pumfrey (22 Ch. D. 255); Todd v. Moorhouse (ubi supra). In 
 the latter case the payer was also beneficiary, and the trustees also 
 had other trust funds which they might have applied in the manner 
 suggested ; the beneficiary, in spite of this, was entitled to the lien. 
 The right of third parties under circumstances of this character is 
 called the right of subrogation. 
 
 In all these cases the trustees' costs and expenses eome first out of Priority, 
 the fund in question. In In re Price, Williams v. Jenkins (31 Ch. D. 
 485), there were two actions, and as a rule the costs of the second (an 
 administration) action take precedence of those of the first (a probate) 
 action. But in spite of that rule, the executor's costs in both actions 
 took precedence of all other costs incurred. In Dodds v. Tuke (25 
 Ch. D. 617), a case arising on a creditor's deed, the costs of trustees 
 were preferred to the debts of creditors. In Dowse v. Gorton and In 
 re Brooke creditors were again postponed to trustees. But in both 
 
164 TRUSTEES' COSTS. 
 
 cases they knew that the business was being carried on by the trustees 
 for their benefit, and did not object. In the second case, Kekewich, J., 
 inferred this knowledge from the fact that the creditor who claimed 
 precedence had notice of it as mortgagee. The subsequent carrying 
 on of the business by a receiver in an administration action did not 
 alter the relations of the parties. 
 
 Note. 
 
 R. S. C, Order lxv. r. 1, B. S. C, 1883, provides that nothing therein con- 
 
 Sd, as tained " shall deprive an executor, administrator, trustee, or mortgagee 
 who has not unreasonably instituted or carried on or resisted any pro- 
 ceedings, of any right to costs out of a particular estate or fund to 
 which he would be entitled according, to the rules hitherto acted upon 
 in the Chancery Division." Subject to this, the costs are in the dis- 
 cretion of the Court. And compare Supreme Court of Judicature 
 Act, 1890, s. 5. 
 
 The costs given to trustees are as between solicitor and client. See- 
 In re Love (29 Ch. D. 348), where two sets of costs were awarded. 
 Trustees may sever in their defence if there is a charge of fraud . 
 Walters v. Woodbridge (7 Ch. D. 504). Trustees will have to pay 
 costs incurred by misconduct : In re Cabburn (46 L. T. 848) (bring- 
 ing administration action) ; In re Weall (42 Ch. D. 674) ; Easton v. 
 Landor (67 L. T. 833) (breach of trust) ; Budyett v. Budgett ([1895] 
 1 Ch. 202) (unnecessary expenses) ; In re Knox's Trusts ([1895] 2 
 Ch. 483) ; In re Chapman, Freeman v. Parker (72 L. T. 66) (delay, 
 etc.); but not for errors: In re Chennell (8 Ch. D. 492); compare 
 In re Watts (22 Ch. D. 512) ; Bird v. Wenn (33 Ch. D. 219). In In 
 re S. Knight's Will (26 Ch. D. 90) costs were both allowed and dis- 
 allowed. And Stott v. Milne and Benett v. Wyndham, (ubi supra) 
 were cases of error of judgment. In In re Eodgkinson ([1895] 2 Ch„ 
 190) the trustees were disentitled to retain costs, because the judge ■ 
 made no order as to costs. 
 
BIGHT OF RETAINER BY EXECUTOR. 165 
 
 Right of Retainer by Executor or Administrator. 
 
 In re ROWNSON : FIELD v. WHITE. 
 
 (29 Ch. D. 358.) 
 
 An executor or administrator cannot retain a debt Principle. 
 in respect of which, if vested in another person, no 
 action could be maintained. 
 
 An administratrix claimed to retain £500 and interest Summary 
 
 of fiicts 
 
 on the ground that her father, who had died intestate, 
 had made a verbal promise to her husband in considera- 
 tion of her marriage to give her £500 as her portion, and 
 that he had never fulfilled his promise. 
 
 The Court of Appeal decided that the administratrix 
 had no right of retainer. 
 
 In this case an attempt was made to very seriously extend the Reason of 
 doctrine of Retainer. The rule is thus laid down in Williams on tae rule - 
 Executors (9th ed. p. 884) : " As an executor or administrator, among 
 creditors of equal degree, may pay one in preference to another, so it 
 is another of his privileges that he has a right to retain for his own 
 debt due to him from the deceased in preference to all other creditors 
 of equal degree. This remedy arises from the mere operation of law 
 on the ground that it was absurd and incongruous that he should sue 
 himself, or that the same hand should at once pay and receive the 
 same debt." 
 
 The general rule, said the Court of Appeal in the leading case, is, as 
 stated in Oomyns' Digest, that it is a devastavit if an executor or an 
 administrator pay that which need not be paid. But " since the time, Exception 
 at all events, of Lord Hardwicke it has been said, with a passing dis- as to 
 sent on the part of an eminent common law judge in McCulloch v. Statute of 
 Dawes (9 D. & R. 40, 43), and now it is established law both in Courts tions 
 of Equity and Law, that no executor is compelled to take advantage 
 of the Statute of Limitations against debts otherwise justly owing. 
 An executor may pay a statute-barred debt if he thinks fit ; he is not 
 bound to plead the statute and he is not guilty of a devastavit if he 
 
166 BIGHT OF RETAINER BY 
 
 does not plead it." The limitations to this right are illustrated by 
 In re Wenham ([1892] 3 Ch. 59); Midgley v. Midgley ([1893] 3 Ch. 
 282) ; but both cases admit the general right. 
 
 However, there was no authority whatever for allowing payment 
 of. a debt which was not enforceable by reason of the Statute of Frauds. 
 " There is to my mind," said Bowen, L. J., " this difference also between 
 a case under the Statute of Limitations and a case under the 4th 
 section of the Statute of Frauds. The Statute of Limitations 
 does not destroy the debt, but only the remedy, and it has been 
 held that an executor may waive that defence in the case of a debt 
 which existed and which appears to be well founded. But a parol 
 contract within the Statute of Frazids, though not void to all intents 
 and purposes, but capable of being dealt with for certain purposes as 
 a valid agreement, is incapable nevertheless of being enforced in an 
 action either directly or indirectly. And if you have a contract which 
 is not capable of being enforced either at law or in equity, I fail to see 
 that a contract of that sort creates a debt or liability against the estate 
 of a testator." The Court accordingly came to the conclusion that the 
 anomaly as to payment or retainer of debts barred by the Statute of 
 Limitations, was not to be extended to a case where the Statute of 
 Frauds prevented the enforcement of the debt. 
 
 When a testator's or intestate's estate is insolvent the right of 
 retainer confers a preference by enabling the executor or admini- 
 strator to satisfy his debt in full. This induced Malins, V.C., to 
 quaintly describe this right "as a relic of old law not founded on 
 justice, and working the greatest possible injustice:" Crowder v. 
 Stewart (16 Ch. D. 368). Compare Lord Keeper "Wright's maxim, 
 "The right of retainer, as it produces inequality, is never assisted:" 
 Eopton v. Dryden (Pre. Ch. 179 ; 2 Eq. Cas. Abr. 450). 
 Specialty But this right never conferred priority as against debts of a superior 
 
 degree ; and Hinde Palmer's Act (32 & 33 Vict. c. 46), which abolishes 
 the distinction between specialty and simple contract debts in the 
 administration of the estate of every person dying on or after 
 the 1st of January, 1870, has not enlarged the right so as to enable 
 an executor who is only a simple contract creditor of his testator to 
 retain his debt as against a specialty creditor : Wilson v. Coxwell 
 (23 Ch. D. 764). In that case the order of payment was as follows : — 
 First, the dividend in full to which specialty creditors were entitled ; 
 then the whole debt retained by the executor ; lastly, the dividends 
 on simple contract debts minus the amount requisite to satisfy the 
 retained debt. Suppose, however, the specialty debts would (if 
 payable in full) be sufficient to exhaust the estate, the executor or 
 administrator's right of retainer disappears. See Talbot v. Frere 
 (9 Ch. D. 568). 
 
 Similarly, before Hinde Palmer's Act the right of the heir or 
 devisee to retain specialty debts in which the heir was bound was 
 unquestioned ; but that right has not been extended by the Act 
 to simple contract debts. The grounds given for this decision were 
 
 debts. 
 
EXECUTOR OR ADMINISTRATOR. 
 
 167 
 
 that the Act conferred no right of bringing an action at law for 
 simple contract debts such as existed in the case of the specialty 
 debts referred to. Semble, his right of retainer in respect of the 
 latter class of debts still exists : In re Midge, Davidson v. lllidge 
 (27 Ch. D. 478). 
 
 "Debts of a superior degree" also include judgment debts, but 
 the latter must be distinguished from balance orders; thus it was 
 held in In re Hubbach, International Marine Hydropathic Co. v. 
 Eawes (29 Ch. D. 934), that a balance order under the Companies 
 Act, 1862, obtained against executors was not such a judgment as to 
 entitle the liquidator to priority, so as to destroy the executor's right 
 of retainer. Poor-law guardians rank as simple contract creditors 
 under sect. 16 of the Poor Law Amendment Act, 1849 (12 & 13 Vict. 
 c. 103) ; Laver v. Botham ([1895] 1 Q. B. 59). 
 
 A similar question was decided in Lee v. Nuttall (12 Ch. D. 61) 
 under the 10th section of the Judicature Act, 1875, which provides 
 that in the administration by the Court of the assets of any person 
 who may die after the commencement of the Act (2nd of November, 
 1875), and whose estate may prove to be insufficient for the payment 
 in full of his debts and liabilities (and also in the winding-up of 
 insolvent companies), the same rules shall prevail 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 contingent liabilities respectively as may be in force for the time 
 being under the Law of Bankruptcy, with respect to the estate of 
 persons adjudged bankrupt. (Note that now by sect. 125 of the 
 Bankruptcy Act, 1883, the estate may be administered in bank- 
 ruptcy.) James, L.J., in delivering the judgment of the Court of 
 Appeal, said : " Under the law as it stood before the Judicature Act, 
 1875, an executor had a right to retain a debt due to himself as 
 against all creditors of equal degree out of all moneys coming to his 
 hands, and this right was not lost by his paying them into Court. 
 This right is not affected by the Judicature Act, 1875, s. 10, 
 relating to secured and unsecured creditors. The Legislature never 
 intended to treat an executor having a right of retainer as a secured 
 creditor; if his right, to retain was in the nature of a security he 
 would have it as against creditors of a higher degree, and could retain 
 as against everybody. The sole object of the section was to get rid 
 of the rule in Chancery under which a secured creditor could prove 
 for the full amount of his debt and realize his security afterwards, 
 and to put him on the same footing as in bankruptcy, where he was 
 only entitled to prove for the balance after realizing or valuing his 
 security. The section was never intended to apply to retainer by an 
 executor." 
 
 It was held in Ex parte Campbell (16 Ch. D. 198) that an executor's 
 right of retainer is not lost by his commencing an administration 
 action on behalf of himself and all other creditors and submitting 
 to account in the usual way. And see In re Barrett (43 Ch. D. 70), 
 
 Judgment 
 debts. 
 
 Retainer 
 not affected 
 by Judica- 
 ture Act, 
 1875, s. 10. 
 
 Not lost by 
 commenc- 
 ing admin- 
 istration 
 action. 
 
168 
 
 BIGHT OF RETAINER BY 
 
 Lost by 
 appoint- 
 ment of 
 receiver. 
 
 The Court 
 will not 
 assist the 
 losing of 
 the right, 
 
 nor the 
 gaining of 
 it. 
 
 No right of 
 retainer 
 against 
 real estate. 
 
 Right is 
 limited. 
 
 where it was decided that an order in an administration action for an 
 account by an executrix under Order xv. r. 1, did not affect the right 
 of retainer. In In re Giles, Jones v. Pennefather ([1876] 1 Ch. 956), 
 the chief clerk's certificate had been already filed, and the right of 
 retainer was nevertheless conceded. 
 
 In In re Jones, Calver v. Laxton (31 Ch. D. 440), it was held 
 with reluctance, following the authorities of Richmond v. White 
 (12 Ch. D. 361), and In re Birt, Birt v. Burt (22 Ch. D. 604), that 
 the appointment of a receiver puts an end to the right of retainer. 
 When the assets are paid into Court the right of retainer is unaffected. 
 The difference is " that when the assets are paid into Court, there 
 being no receiver, that is done with the assent of the executor, and 
 it is the same for this purpose as if they had passed through his 
 hands ; but when a receiver is appointed, a debtor to the estate may 
 pay his money direct to the receiver and obtain a good discharge, so 
 that the appointment of a receiver prevents the money actually or 
 theoretically coming to the executor's hands, and without possession 
 there can be no retainer : " per Kay, J. For the order made, see 
 p. 448. 
 
 This principle was also recognized in In re Harrison, Latimer v. 
 Harrison (32 Ch. D. 395), where the executor was, however, allowed 
 priority in respect of assets which he had received before the 
 appointment of the receiver, and had then handed over to him, but 
 not in sespect of a sum which he had subsequently paid as surety 
 for the testator. 
 
 In the case of In re Wells, Molony v. Brooke (45 Ch. D. 569), 
 where the principle involved concerned the very substantial sum of 
 £120,000 due to the executors as trustees of another will, the question 
 was whether a creditor was entitled in an administration action to 
 obtain the appointment of a receiver so as to prevent an executor from 
 exercising his right of retainer. Stirling, J., following Harris v. 
 Harris (35 W. E. 710), decided that he was not so entitled on the 
 ground that no case was shown of assets being wasted. 
 
 In Trevor v. Hutchins (65 L. J. Ch. 175) Stirling, J., refused to 
 order payment out of a fund to an administrator's executrix on the 
 analogy of In re Wells: as the sole reason for which she desired 
 payment was to effectuate a claim of retainer made by the adminis- 
 trator, but not perfected by possession (see next case). Trevor v. 
 Hutchins was affirmed on appeal, but on slightly different grounds 
 ([1896] 1 Ch. 844). 
 
 An executor has no right of retainer against real estate, Walters v. 
 Walters (18 Ch. D. 182), and his right of retainer is limited to assets 
 coming into his possession or under his control, or paid into Court 
 during his lifetime, and this right so limited, if claimed by the 
 executor during his lifetime but not exercised, passes to his repre- 
 sentatives : In re Compton, Norton v. Compton (30 Ch. D. 15), 
 restricting Wilson v. Coxwell (23 Ch. D. 764), and compare Trevor v. 
 Hutchins (ubi supra). 
 
EXECUTOR OB ADMINISTRATOR. 
 
 169 
 
 In re Compton also decided, following the authority of Loane v. 
 Casey (2 W. Bl. 965), that the executor may retain in respect of 
 damages for the breach of a pecuniary contract for which there is a 
 certain standard or measure. 
 
 In In re Morris' Estate, Morris v. Morris (L. E. 10 Ch. 68), it was 
 decided that a surviving partner who was one of the executors was 
 not deprived of his right to retain assets in his hands in satisfaction 
 of the liability of the testator to the firm by the fact that the amount 
 of the liability had not been ascertained, no accounts of the partner- 
 ship having been taken. In In re Beeman, Fowler v. James ([1896] 
 1 Ch. 48), the administratrix was entitled to an annuity under a 
 covenant by the intestate. She was only allowed to retain arrears 
 down to the date of her claim to retain. 
 
 Eetainer in respect of a suretyship debt was allowed in In re Giles 
 (ubi supra), before any payment was made by the surety. 
 
 In Jones v. Evans (2 Ch. D. 420) a creditor had bequeathed a debt 
 which he had proved in an administration action, to the executrix of 
 the estate, and it was held that there was no right Of retainer. As to 
 funeral expenses of a deceased wife, see In re McMynn (33 Ch. D. 
 575). As to statute-barred debts, see Hill v. Walker (4 Kay & J. 
 166). As to loans by wife to husband : In re May (45 Ch. D. 499). 
 
 It was held in In re Hubbach (ubi supra) that one of several 
 executors is entitled to a right of retainer in respect of a mortgage 
 debt due from the testator to a body of trustees of whom that 
 executor is one. 
 
 -- A right of retainer cannot be exercised after it has been abandoned: 
 Stammers v. Elliott (L. E. 3 Ch. 195); In re Orpen, Beswich v. 
 Orpen (16 Ch. D. 202). These, however, were cases where debts 
 were due to his testator, and an executor was entitled to retain them 
 out of legacies bequeathed to the debtor, as to which see In re Taylor, 
 Taylor v. Wade ([1894] 1 Ch. 671) ; In re AJcerman ([1891] 3 Ch. 
 212); In re Watson ([1896] 1 Ch. 925); distinguishing In re 
 Hodgson, Hodgson v. Fox (9 Ch. D. 673). 
 
 Debts 
 allowed. 
 
 Partner- 
 ship debt, 
 
 suretyship, 
 
 and other 
 debts. 
 
 Who can 
 retain. 
 
 Abandon- 
 ment of 
 right. 
 
170 
 
 COSTS OF SOLICITOR-TRUSTEE. 
 
 Costs of Solicitor- Trustee. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 IttreCORSELLIS: LAWTON v. ELWES. 
 
 (34 Ch. D. 675.) 
 
 As a general rule a solicitor-trustee is not, nor is Ms 
 firm entitled, in the absence of express authorization, 
 to make any profits out of business relating to the 
 trust. 
 
 Where, however, business is done in any action, or 
 other legal proceeding on behalf of himself and his 
 co-trustee, the solicitor or his firm may receive the 
 usual charges if there has been no greater cost than 
 ivotdd have been incurred if the solicitor or his firm 
 had acted for the co-trustee alone. 
 
 A solicitor, who was co-trustee under a will which 
 contained no power to charge for professional services, 
 claimed to be entitled to costs in respect of four trans- 
 actions. 
 
 1. Profit costs in respect of an application for the 
 maintenance of an infant on a summons by next friend, 
 in which he and his co-trustee were respondents and 
 in which his firm had acted through their London agents 
 as solicitors for the respondents. 
 
 2. Profit costs in respect of business done by the same 
 London agents for a receiver appointed in an adminis- 
 tration action, commenced after the death of the 
 co-trustee. 
 
 3. Profit costs paid by the lessees for the preparation 
 by the solicitor-trustee's firm of leases which he had 
 granted as trustee of the estate. 
 
 4. Fees received by the solicitor-trustee's partner for 
 
COSTS OF SOLICITOR- TRUSTEE. 
 
 171 
 
 manorial business in respect of a manor belonging to 
 the trust estate to which the partner had. been appointed 
 steward by the co-trustees. These fees had been brought 
 into the partnership account. 
 
 Only the first and fourth claims were allowed by the 
 Court of Appeal. 
 
 The principle is well established by a long series of authorities, 
 among which may be mentioned the cases of Robinson v. Pett (3 
 P. W. 251) and Docker v. Somes (2 M. & K. 655, 664), that a trustee 
 shall not make a profit of his office, and accordingly it has been held 
 that in the absence of any special authority trustees or executors who 
 are factors, brokers, commission agents, auctioneers, or bankers cannot 
 derive any profit in the way of business from the estate committed 
 to their charge (Lewin on Trusts, 9th ed. pp. 292-304, where the 
 authorities are collected). The general rule with regard to the 
 position of solicitor-trustees may be stated as follows : a trustee, 
 whether expressly or constructively such, or an executor or adminis- 
 trator who is a solicitor, Pollard v. Doyle (1 Dr. & Sm. 319), cannot 
 charge for his professional labours, is allowed nothing for his time or 
 trouble, but will be allowed merely his expenditure — his costs out 
 of pocket, unless there be a special contract or direction to that effect 
 (Lewin on Trusts, 9th ed. p. 298) ; and the same rule is also stated 
 in In re Barber, Burgess v. Vinicome (34 Oh. D. 77, 81), and in the 
 leading case (34 Oh. T>. 681). This principle is based upon the con- 
 sideration that the Court of Equity will not allow a man to place 
 himself in a position in which his interest and duty are in conflict. 
 If it were not the rule, a trust estate might be heavily burdened by 
 reason of business being done by a trustee or executor employing 
 himself on behalf of the estate. The principal exception to this 
 general rule was established by the decision of Lord Oottenham in 
 Cradoch v: Piper (1 Mac. & Q. 664), where it was held not to apply 
 to a suit where one of the trustees who was a solicitor " acted first 
 for himself, secondly for a co-defendant who was a trustee, and thirdly 
 for the cestuis que trustent:" In re Barber (ubi supra); so that he 
 was entitled to receive the full costs, it being admitted that the costs 
 had not been increased through his conduct. 
 
 In deciding the first question in the leading case in the solicitor's 
 favour, Cotton, L.J., expressed himself as follows: — -"It is said that 
 the exception established by Cradoch v. Piper would only apply to 
 costs in a hostile action, and that this was not an action at all, but 
 only a summons ; . . . but in my opinion it would be frittering away 
 the decision, which we ought not to overrule, by saying that it only 
 applies to a hostile action, no such limitation being laid down by 
 Lord Oottenham." 
 
 Trustee 
 may not 
 profit by 
 his office. 
 
 Cradoch v. 
 Piper. 
 
 Trustees 
 defendants 
 in a suit. 
 
 Summons 
 for main- 
 tenance. 
 
172 
 
 COSTS OF SOLICITOR-TRUSTEE. 
 
 Receiver's 
 accounts. 
 
 Costs of 
 
 preparing 
 
 leases. 
 
 Manorial 
 fees. 
 
 Disability 
 of partners 
 and agents. 
 
 Express 
 authoriza- 
 tion. 
 
 The second item was disallowed by the Court of Appeal on the 
 following principle : — The receiver and the trustee's firm acting for 
 him were in a position not hostile but adverse to the interest of the 
 estate. The two positions were inconsistent, as the duty of the 
 trustee was to get all he could from the receiver, and to obtain 
 the disallowance of any payments to which he was not legally 
 entitled, while the receiver was seeking to avoid being charged with 
 more than he admitted to be due from him, and to maintain all his 
 payments. 
 
 The third item was disallowed upon the principle that although the 
 costs were paid by the tenants in the ordinary course, the business 
 was done on the employment of the landlord. Whitney v. Smith 
 (L. E. 4 Ch. 513), where a solicitor-trustee-mortgagee was allowed to 
 retain all professional charges paid by the mortgagor, was distin- 
 guished on the ground that there the solicitor was not acting 
 adversely to the trust estate. But the reasons for this distinction 
 between mortgages and leases were unsatisfactorily expressed, by the 
 Court of Appeal (pp. 684, 685). 
 
 As for the fourth item, these " customary manorial fees " did not 
 arise from any duty which the trustee ought to have discharged 
 gratuitously to the estate, and were therefore allowed. 
 
 It will be seen from the leading case that the disability of the 
 solicitor extends to his firm and to his partners : Collins v. Carey 
 (2 Beav. 128); Lincoln v. Windsor (9 Ha. 158); Lyon v. Baker 
 (5 D. & S. 622). And where a country firm (a member of which 
 is trustee) employs London agents, and under the usual arrangements 
 receives profit costs, it must account for such costs to the trust 
 estate ; but the London agents can receive their proportion of costs : 
 Burge v. Brutton (2 Ha. 373) ; Vipont v. Butler ([1893] W. N. 64). 
 But where one member of a firm of solicitors, who was a trustee, 
 employs his partner to act as his solicitor in the trust business, under 
 an agreement that the trustee should not participate in any way in 
 the profits, the partner is entitled to his full costs : Clack v. Carlon 
 (7 Jur. N. S. 441). 
 
 Express authority may be given to a solicitor-trustee to charge for 
 his services. But the agreement should be carefully framed. Thus 
 the form in Moore v. Frowd (3 My. & Cr. 45) was held not to 
 include more than payment of expenses out of pocket. In In re 
 Ames, Ames v. Taylor (25 Ch. D. 72), a power to transact business, 
 " whether such business be usually within the business of a solicitor 
 or not," and "to make the usual professional or other proper and 
 reasonable charges for all business done and time expended in relation 
 thereto," entitled a solicitor-trustee to non-professional charges, and 
 the matter was referred back to the Taxing Master to review his 
 taxation on that principle. 
 
 In In re Chappie, Newton v. Chapman (27 Ch. D. 584), a power 
 " to make the same professional charges, and to receive the same 
 pecuniary emoluments and remuneration for all business done by him, 
 
COSTS OF SOLICITOR-TRUSTEE. 173 
 
 and all attendances, time, and trouble given and bestowed by him 
 in or about the execution of the trusts and powers of my said will, 
 or the management and administration of my trust estate, real or 
 personal, as if he, not being himself a trustee or executor thereof, 
 were employed by the trustee or executor," was held not to include 
 non-professional charges. 
 
 The Court pointed out that the direction that the solicitor-trustee 
 was to be allowed to make the usual professional or other proper and 
 reasonable charges which was to be found in In re Ames (ubi supra), 
 did not occur in the present case, and expressed an opinion that a 
 form which had been referred to enabling the solicitor to charge for 
 business, " including all business of whatever kind not strictly pro- 
 fessional, but which might have been performed or would necessarily 
 have been performed, in person by a trustee, not being a solicitor," 
 includes non-professional charges. This opinion has been confirmed 
 by the decision in In re Fish, Bennett v. Bennett ([1893] 2 Ch. 413) ; 
 the residuary legatees were, however, authorized to examine the 
 solicitor's books, and bring any contested item before the judge in 
 Chambers. 
 
 Kay, J., said in In re Chappie, that a power to a solicitor to charge Power 
 for non-professional expenses ought not to be put into a will drawn in W1 ^- 
 by himself unless he has been especially instructed to do so. But he 
 surely understated the case. Any power to charge for services is 
 a gift: In re Barber, Burgess v. Vinicombe (34 Ch. D. 77). And 
 a gift to a solicitor in a will prepared by himself is void unless he can 
 show that the testator's attention was especially called to it. See 
 Note to McPherson v. Watt, ante, p. 77. 
 
 Sect. 73 (2) of the Bankruptcy Act, 1883, only enables a solicitor- Power in 
 trustee in bankruptcy to contract for remuneration for his professional Bankruptcy 
 services. See In re Wayman (24 Q. B. D. 68). 
 
 If the cestuis que trustent have allowed costs to the solicitor-trustee Settled 
 and the accounts are settled, the onus lies on them to prove that accounts, 
 injustice has been done : compare In re Cheesman ([1891] 2 Ch. 289) ; 
 In re Webb, Lambert v. Still ([1894] 1 Ch. 73). 
 
 In London Scottish Benefit Society v. Charley (13 Q. B. D. 872, Solicitor 
 affirming 12 Q. B. D. 452), it was held that when a solicitor brings or appearing 
 defends an action in person, he is entitled to the same costs as an " 
 ordinary litigant appearing in person, subject to this restriction, that 
 no costs which are really unnecessary can be recovered. Thus, he 
 may charge costs out of pocket and what is done by his clerk, but not 
 for instructions and attendances to and by himself. 
 
174 CHARGE IN FAVOUR OF SOLICITOR. 
 
 Charge in favour of Solicitor. 
 
 GREER v. YOUNG. 
 
 (24 Ch. D. 545.) 
 
 Principle. The 2%th section of the Solicitors Act, 1860, confers 
 
 upon the Court a discretionary power to create a 
 charge upon property recovered or preserved. Such 
 charge is independent of contract and is in the nature 
 of salvage. 
 
 Summary Mrs. Greer and her daughter had life interests, and 
 
 of facts. . . . ... 
 
 certain infants had reversionary interests, under the will 
 of W. J. Greer, of which Young and Pollock were trustees. 
 Pollock, after committing breaches of trust by which 
 a large portion of Greer's estate was lost, died insolvent ; 
 and in a suit instituted for the administration of his 
 estate, Young carried in a claim in respect of the loss 
 so occasioned. 
 
 Afterwards Mrs. Greer and her daughter commenced 
 the present action, to which the infants were not parties, 
 and obtained the appointment of new trustees in place 
 of Young and a declaration that Young and the estate 
 of Pollock were jointly and severally liable. The new 
 trustees then obtained a dividend from Pollock's estate 
 and in Young's bankruptcy. The Court of Appeal 
 decided that the solicitors who had acted in the present 
 action were entitled to a charge on the dividend recovered 
 in Young's bankruptcy, but not on the dividend recovered 
 from Pollock's estate. 
 
 Solicitors In the leading case the Court of Appeal authoritatively settled 
 
 Act, 1860, the principle upon which the 28th section of " Tlie Solicitors Act, 
 s - 28 - 1860" (23 & 24 Vict. c. 127), is to he interpreted. That section 
 
CHARGE IN FAVOUR OF SOLICITOR. 
 
 175 
 
 provides that " in every case in which an attorney or solicitor shall be 
 employed to prosecute or defend any suit, matter, or proceeding in any 
 court of justice, it shall be lawful for the Court or judge to declare 
 such attorney or solicitor entitled to a charge upon the property 
 recovered or preserved, and upon such declaration being made such 
 attorney or solicitor shall have a charge upon and against, and a right 
 to payment out of the property (recovered or preserved) of whatsoever 
 nature, tenure or kind the same may be." The section then goes on 
 to provide that the Court or judge may make orders for taxation of 
 and for raising and payment of such costs, charges, and expenses out 
 of the property, that all conveyances and acts done to defeat or which 
 shall operate to defeat such charge or right shall, unless made to a 
 iona fide purchaser for value without notice, be absolutely void, and 
 concludes with a proviso that " no such order shall be made by any 
 Court or judge in any case in which the right to recover payment 
 of such costs, charges, and expenses is barred by any Statute of 
 Limitations." 
 
 " The legislature," said Lord Selborne, in Pinherton, v. Easton Discretion- 
 (L. E. 16 Eq. 490) " has given not a charge, but a power to the Court al 7 P ower 
 to create a charge for a solicitor's costs, ' upon property recovered or p ourt 
 preserved' when meritorious services of the solicitor have resulted in 
 such recovery or preservation." The Act gives a discretionary power 
 to the Court, and the Court refused to exercise its discretion in 
 Harrison v. Harrison, (13 P. D. 180), followed in Croglian v. Maffett 
 (28 L. B. Ir. 97), and in Groom v. Cheesewright ([1895] 1 Ch. 730), 
 where the solicitor accepted other security, and in Roche v. Roche 
 (29 L. B. Ir. 339), owing to lapse of time. 
 
 Property is "preserved" by an administration action in which a "Pre- 
 receiver is appointed, and which is then compromised behind the ser ved ' 
 solicitor's back : Twynam v. Porter (11 Eq. 181) ; and as long as the 
 solicitor's name is on the record the " preservation " continues, nor 
 will the Statute of Limitations begin to run until his name is re- 
 moved : Baile v. Baile (13 Eq. 497). And property is " preserved " 
 by defending a suit to set a deed aside : Bulley v. Bulley (8 Ch. D. 
 479); by an action for dissolution of partnership: In re Suffleld and 
 Watts (20 Q. B. D. 693) ; by defending a redemption and foreclosure 
 action : Scholefield v. Lochwood (7 Eq. 83) ; or by bringing an action 
 against a pretended incumbrancer : In re Fiddey, Jones v. Frost (L. B. 
 7 Ch. 773) ; even when the proceedings end in a partially adverse 
 judgment, Smith v. Winter (18 W. B. 447), or partially beneficial 
 compromise : Moxon v. Sheppard (24 Q. B. D. 627). 
 
 Property is " recovered " by means of an action of detinue : Catlow 
 v. Catlow (2 C. P. D. 362), compare Briscoe v. Briscoe ([1892] 3 Ch. 
 543) ; an action to recover a debt : Hallow v. Carrold (14 Q. B. D. 
 543) ; or a petition by a wife for divorce where alimony is ordered : 
 Harrison v. Harrison (13 P. D. 180). 
 
 Property is neither " recovered" nor " preserved" where an adminis- 
 tration decree is obtained, and a new trustee appointed ; but before 
 
 and ' 
 covered." 
 
176 CHARGE IN FAVOUR OF SOLICITOB. 
 
 To what 
 property 
 it extends. 
 
 Who may 
 sue. 
 
 What costs 
 
 are 
 
 charged. 
 
 Priorities. 
 
 accounts are taken the suit is stayed : Pinkerton v. Easton (16 Eq. 
 490) ; nor where a suit relating to an easement is compromised even 
 though a mandatory injunction against his client has been refused, 
 for easements cannot be charged : Foxon v. Gascoigne (L. R. 9 Ch. 
 654). 
 
 Unlike the common-law lien the charge extends over land : Bonser 
 v. Bradshaw (4 Giff. 260) ; Ttvynam v. Porter (ubi supra) ; and 
 being in the nature of salvage and not of contract, affects the whole- 
 fund, including infants' interests, as in the leading case, and the in- 
 terests of married women restrained from anticipation, In re Keane 
 (12 Eq. 115), and of parties not represented in the action, as in the 
 leading case : Charlton v. Charlton (32 W. E. 90) ; Bulley v. Bulky 
 (8 Ch. D. 479) ; and Scholey v. Peck ([1893] 1 Ch. 709), citing Greer 
 v. Young. "It does not depend on contract. Contract does away 
 with the notion of salvage. Therefore it is immaterial whether the 
 property belongs to an infant ; it is immaterial whether the person 
 whose property is recovered employed the solicitor: " Greer v. Young 1 
 (p. 552). Like the common-law lien, it attaches itself to moneys paid to 
 compromise an action : Cole v. Eley ([1894] 2 Q. B. 350) (compare Ross 
 v. Buxton (42 Ch. D. 190) for the law as to common-law lien) ; to the 
 proceeds of afi.fa. issued by the client to realize a judgment debt for 
 £10 and costs for £100 (circa) : Dallow v. Garrold (14 Q. B. D. 543) - r 
 Birchall v. Pugin (L. R. 10 C. P. 397) ; to costs of a Court of first 
 instance actually paid and ordered by the Court of Appeal to be re- 
 funded : Guy v. Churchill (35 Ch. D. 489) ; but only to the difference 
 between a successful claim and successful counterclaim, Westacott v. 
 Bevan ([1891] 1 Q. B. 774), and not to money paid into Court to- 
 answer a claim which is withdrawn (ib.), unless there is a collusive 
 withdrawal of the claim, Moxon v. Sheppard (24 Q. B. D. 627), nor 
 to money paid into Court to answer a claim made in another Court, 
 Pierson v. Knutsford Estates Co. (13 Q. B. D. 666), nor to money 
 paid by the client into Court to secure costs, and repayable to him by 
 reason of his success : In re Wadsworth (29 Ch. D. 517). 
 
 The salvor's personal representative and the assign of his book debts- 
 may obtain this declaration of lien : Baile v. Baile (13 Eq. 497) ;. 
 Briscoe v. Briscoe ([1892] 3 Ch. 543). 
 
 Under the statute only the taxed costs will be so charged if still 
 taxable : Be Bay v. Griffin (L. R. 10 Ch. 291). The costs of an 
 arbitration, Macfarlane v. Lister (37 Ch. D. 88), are not taxable ; nor 
 are the costs of an ejectment payable out of mortgage moneys recovered 
 by foreclosure : Wilson v. Round (4 Giff. 416). 
 
 These orders are " in the nature of an execution," and the solicitor 
 obtains his charge subject to equities. Thus, if the solicitor is dis- 
 charged, or rightfully discharges himself, Clover v. Adams (6 Q. B. D. 
 622), before the money is actually received, his charge ranks subse- 
 quently to the statutory or equitable lien of the solicitor at the date 
 of the recovery : In re Wadsworth (29 Ch. D. 517 ; 34 Ch. D. 155) ; in 
 the case of three successive solicitors the last ranks first, and the 
 
•,.. CHARGE IN FAVOUR OF SOLICITOR. 177 
 
 selicitor before the Court of Appeal ranks before the solicitor before 
 the Court of First Instance : In re Knight ([1892] 2 Ch. 368). 
 
 It will override the rights of a prior assign (including a mortgagee) 
 if the assignment was made with knowledge, or after notice of the 
 trial, Cole v. Eley ([1894] 2 Q. B. 350) ; Faithful v. Ewen (7 Ch. D. 
 495) ; The Paris ([1896] P. 77), or of a prior mortgagee who takes 
 the benefit of an action, Scholey v. Pech ([1893] 1 Ch. 709), unless 
 the assign has been led by the solicitor to suppose that the latter will 
 not enforce his lien, Macfarlane v. Lister (37 Ch. D. 88). It will 
 override the rights of a landlord threatening distraint, In re Suffield 
 and Watts (20 Q. B. D. 693), and of the client's trustee in bank- 
 ruptcy : In re Graydon ([1896] 1 Q. B. 417) ; Jones v. Turnbull 
 (2 M. & W. 601) (common-law lien) ; but if a f and is in Court a stop 
 order should be obtained. 
 
 The order declaring the charge may be made, though the action has Practice, 
 come to an end : In re Fiddey, Heinrich v. Sutton (6 Ch. 865) ; In re 
 Fiddey, Jones v. Frost (7 Ch. 773). In the Q. B. D. the usual practice 
 is to make the order on a summons before a judge in Chambers, and 
 application should be to the judge who heard the action: Catlow v. 
 Catlow (2 C. P. D. 362) ; Higgs v. Schroder (3 C. P. D. 252) ; Clover v. 
 Adams (6 Q. B. D. 622). In the C. D. the order may be made on 
 petition, Brown v. Trotman (12 Ch. D. 880), or by summons, Earner 
 v/ 1 , Giles (11 Ch. D. 942), but the usual modern practice is to apply 
 by' summons. See B. S. C, App. K., No. 29, for form. The petition 
 or summons must be intituled in the action, but not necessarily in the 
 matter of the Act or of the solicitor : Earner v. Giles (supra). The 
 application should be made before the judge who heard the cause : 
 Heinrich v. Sutton (supra). Parties to the action whose interests 
 are not affected should not be served : Brown v. Trotman (supra) ; 
 Jackson v. Smith (53 L. J. Ch. 972). 
 
 A solicitor has, independently of any statute, a particular lien on his Non- 
 client's interest, Verity v. Wilde (28 L. J. Ch. 561), in a fund re- statutory- 
 covered for his client or received on behalf of his client in legal pro- P artio, " sr 
 ceedings ; and it has been held that where he also holds papers 
 essential to the recovery of this fund, this lien will be general : 
 Worrall v. Johnson (2 Ja. & W. 214). While the fund recovered is 
 
 \in the hands of third parties this lien, in order to be operative must 
 be perfected by notice or stop order. These doctrines were old a 
 century ago : Read v. Dupper (6 Term. 361) ; but never extended to 
 " recovered land," Shaw v. Neale (6 H. L. C. 581, 601), nor to a trust 
 estate preserved by an administration action: Worral v. Harford 
 (8 Ves. 4) ; but did extend to proceedings under the Declaration of 
 Titles Act (25 & 26 Vict. c. 67) ; Pritchard v. Roberts (17 Bq. 222), 
 and to Partition Actions where sale was ordered (ib.); to a wife's 
 alimony, Ex parte Bremner (L. B. 1 P. & M. 254), if the solicitor has 
 her written authority to receive it as her agent : Cross v. Cross (43 
 L. T. 533) ; and to cheques : General Share Trust Co. v. Chapman 
 (1 C. P. D. 771). Solicitors must pay their own costs of obtaining a 
 
 N 
 
178 
 
 CHARGE IN FAVOUR OF SOLICITOR. 
 
 General 
 lien of 
 solicitor. 
 
 stop order : Mildmay v. Quiche (6 Ch. D. 553). An appeal lies, but 
 has been refused on the ground that the money to be charged was too 
 small : In re National Assurance Association (L. E. 7 Ch. 221). 
 
 A solicitor for a wife in divorce proceedings may enforce this i 
 particular lien over money paid by the husband into Court to secure/ 
 costs, unless the solicitor himself has been guilty of acting vexatiously ,' 
 and oppressively : Hall v. Hall ([1891] P. 302). \ 
 
 A solicitor is also entitled to a general lien for professional charges) 
 on all papers and documents other than a will, and also to articles of/ 
 his client in his possession, delivered to be exhibited to witnesses i : 
 Friswell v. King (15 Sim. 191). This lien is unaffected by ' 
 Statutes of Limitations. It maybe varied or abandoned by agree! - 
 ment ; notice of it need not be given ; the solicitor need not furnisq i 
 copies of the documents so held, but must not hold them so as tip 
 imperil the property referred to in them : White on Solicitors, cm. 
 xvi. If he has to hand them over to a new solicitor he should applV/' 
 to the Court for an order under the Act of 1860, or obtain an under- 
 taking from the solicitor. For general lien over the title-deeds of & 
 company, see Brunton v. The Electrical Engineering Co. ([1892] 1 Ch.', 
 434) ; of a trust estate, see Home v. Shepherd (3 Jur. N. S. 806). 
 
 The cases on priority are decided on the same principles as those on 
 the statute ; but common-law general lien will not be enforced when 
 a solicitor acts for two different parties with conflicting interests : In 
 re Snell (6 Ch. D. 105), cited Macfarlane v. Lister (37 Ch. D. 88); nor 
 when he waives his lien by accepting other security : In re Taylor, 
 Stileman, and Underwood ([1891] 1 Ch. 590). 
 
FOLLOWING TRUST FUND. 179 
 
 Following Trust Fund. 
 
 In re HALLETT'S ESTATE : KNATCHBULL v. 
 HALLETT. 
 
 (13 Ch. D. 696.) 
 
 Property intrusted to a person in a fiduciary relation Principle 
 may oe followed as long as it can he traced. 
 
 When a person holding money as trustee or in a 
 fiduciary character mixes it with his own, and draws 
 out of the mixed fund for his own purposes, the Court 
 presumes that his drawings are first coming out of his 
 own money. 
 
 A solicitor had bonds of the value of between £2100 Summary 
 
 or Tnpi"s 
 
 and £2200 belonging to a client in his possession. He 
 improperly sold them and paid the proceeds to his 
 general balance at his bankers, and drew cheques for 
 his own purposes. He afterwards paid other moneys 
 of his own into the account, and at his death there 
 was over £3000 standing to his credit. It was held 
 by the Court of Appeal that the client had a right " to 
 follow the money," and was entitled to a charge on 
 the £3000. 
 
 In this important case, Jessel, M.R., stated in a most elaborate Modern 
 manner and with great distinctness " the modern doctrine of equity doctrine of 
 as regards property disposed of by persons in a fiduciary position," e<lul y ' 
 which was, as he said, a very clear and well established doctrine. 
 The general rule with regard to following trust property has been 
 frequently understood as if limited to the case of trustees in the 
 ordinary acceptation of the term in the proposition that the cestui 
 que trust can follow trust property " so long as the metamorphoses 
 can be traced." See the authorities on this subject collected in Lewin 
 on Trusts, 9th ed. 1019 et seq. The law, however, as it may be 
 
180 
 
 FOLLOWING TRUBT FUND. 
 
 Fire 
 
 methods of 
 following 
 trust funds. 
 
 1. Proceeds 
 of sale of 
 trust 
 property. 
 
 2. Pur- 
 chases with 
 trust 
 money. 
 
 3. Pur- 
 chases with 
 trust and 
 other 
 money. 
 
 4. Proceeds 
 of sale of 
 trust and 
 other 
 property. 
 
 considered to be settled by the judgment in In re Hallett, requires a 
 much, more elaborate statement. 
 
 In the first place the remedies for a breach, of trust may be 
 summed up under five heads. The first two heads include cases 
 where the trust fund is dealt with without being mixed with other 
 funds ; the last three heads include cases where mixture occurs, but 
 where " a refinement of equity " enables the Court to regard the trust 
 fund as distinct and to trace its metamorphoses. The rules may be 
 stated thus : — 
 
 1. Where property has been wrongfully disposed of by a trustee, 
 the cestui que trust may take the proceeds of the sale if he can 
 identify them. This rule is of course borrowed from that which 
 prevails when the disposition is rightful. 
 
 2. Where purchases of land or chattels are made with trust money 
 exclusively, the cestui que trust may take the property purchased 
 or hold it as a security for the amount of trust money laid out in the 
 purchase, or as it is generally expressed, he is entitled at his election 
 either to take the property or to have a charge on it for the amount 
 of the trust money. He has an equitable interest or estate in the 
 land or chattels : Gave v. Cave (15 Oh. D. 639, 647). 
 
 3. When the trust money has been first mixed with the trustee's 
 own money, and property has been purchased with the mixed fund, 
 the cestui que trust is entitled to a charge on the property purchased 
 for the amount of the trust money laid out in the purchase. Compare 
 In re Champion ([1893] 1 Ch. 101). 
 
 4. Where trust money is mixed with other moneys of the trustee 
 in the hands of a bailee, it is still regarded as separate for purposes of 
 equity. "Does it," said Jessel, M.E., "make any difference according 
 to the modern doctrine of equity 1 I say none. It would be very 
 remarkable if it were to do so. Supposing the trust money was a 
 thousand sovereigns, and the trustee put them in a bag, and by 
 mistake or accident or otherwise dropped a sovereign of his own into 
 the bag, could any one suppose that a judge in equity would find 
 any difficulty in saying that the cestui que trust has a right to take 
 a thousand sovereigns out of the bag? I do not like to call it a 
 charge of a thousand sovereigns on the thousand and one sovereigns, 
 but this is the effect of it." The same principle, he went on to say, 
 would apply if the trustee instead of putting the money into a bag 
 carried it to his bankers, lent it without security, lent it on a 
 promissory note or bond. In these cases the cestui que trust would 
 own, or, if the trust money were mixed with other money, have a 
 charge for the amount of the trust money on the balance in the bank, 
 promissory note, or bond. " There is no difficulty then in following 
 out the rules of equity and in deciding that in the case of a mere 
 bailee you can follow the money." This principle has now superseded 
 the principle in Whitecomb v. Jacob (1 Salk. 161), a case decided in 
 Queen Anne's reign, that "if the factor," who in this case corre- 
 sponded to the trustee, " have money, it shall be looked on as the 
 
FOLLOWING TRUST FUND. 181 
 
 factor's estate, for in regard- that money has no ear-mark equity 
 cannot follow that in behalf of him that employed the factor ; " and 
 cases like Ex parte Dale & Co. (11 Ch. D. 772), decided in pursuance 
 of this principle, must be regarded as overruled. 
 
 5. Suppose after mixing the trust funds with funds of his own 5. Drawing 
 at a bank the trustee draws cheques on his banker for his private on trust 
 expenses; so long as there are funds of his own at the bank it must jj^°y h *t 
 be presumed that the trustee drew his cheque on his own funds and a bank, 
 did not touch the trust funds. This is an application of the maxim, 
 " allegans suam turpitudinem non est audiendus," and is stated thus 
 by Jessel, M.E.: — " When we come to apply that principle to the case 
 of a trustee who has blended trust moneys with his own, it seems to 
 me perfectly plain that he cannot be heard to say that he took away 
 the trust money >vhen he had a right to take away his own money. 
 The simplest case put is the mingling of trust moneys in a bag with 
 money of the trustee's own. Suppose he has a hundred sovereigns in 
 a bag, and he adds to them another hundred sovereigns of his own, so 
 that they are commingled in such a way that they cannot be dis- 
 tinguished, and the next day he draws out for his own purposes £100, 
 is it tolerable for anybody to allege that what he drew out was the 
 first £100, the trust money, and that he misappropriated it and left his 
 own £100 in the bag ? It is obvious that he must have taken away 
 that which he had a right to take away, his own £100. What 
 difference does it make if instead of being in a bag he deposits it 
 with his banker, and then pays in other money of his own and draws 
 out some money for his own purposes ? Could he say that he had 
 actually drawn out anything but his own money ? His money was 
 there, and he had a right to draw it out, and why should the natural 
 act of simply drawing out the money be attributed to anything 
 except to his ownership of money which was at his bankers ? " 
 
 A pendant to this rule was added by the Court of First Instance, 
 which held that where moneys belonging to two or more cestuis que 
 trustent have been paid by a trustee into his own account at his 
 bankers, and his balance becomes insufficient to satisfy all claims by 
 the cestuis que trustent, so that they contest for priority, the rule in 
 Clayton's Case (1 Mer. 572) applies, and the sum first paid in is held 
 to have been first drawn out. This principle was repeated in Sancock 
 v. Smith (41 Ch. D. 456), where, however, the balance was found to 
 be sufficient to satisfy the fiduciary claimants, and it was therefore 
 unnecessary to apply the principle. See also In re Stenning, Wood v. 
 Stenning ([1895] 2 Ch. 433), post, p. 183. 
 
 In the second place the remedies for misappropriation by a trustee These five 
 are the same as those by a person in a fiduciary position, whether meth <>ds 
 bailee, collector of rents, or any one else acting as agent. Thesiger, adopted 
 L.J., said in the leading case, "The principles relating to the follow- with 
 ing of trust property are equally applicable to the case of a trustee regard to 
 . . . and to the case of factors, bailees, or other kinds of agents." In fiducial 7 
 his elaborate review of the older cases, where wrongful conversion propertjr - 
 
182 
 
 FOLLOWING TRUST FUND. 
 
 Apparent 
 exceptions 
 in ease of 
 (a) commis- 
 sion agents; 
 
 agents 
 taking 
 commis- 
 
 was effected by a factor, as in Whitecomb v. Jacob (1 Salk. 161), or by 
 bankers acting as special agents to collect and remit money to another 
 bank, as In re West of England and South Wales District Bank, 
 Ex parte Dale & Co. (11 Oh. D. 772), or by any other person in a 
 merely fiduciary position, .Tessel, M.R., showed that these cases were 
 decided on the assumption that the same rule applied to trustees and 
 cestuis que trustent on the one hand, and to other fiduciary agents 
 and principals on the other hand. Again, in Birt v. Burt (11 Ch. D. 
 773, n.) the person who had mixed other people's money with his own 
 was an agent to sell land, and in Ex parte Cooke (4 Ch. D. 123) a 
 stockbroker. 
 
 In cases decided since In re Eallett's Estate we have land-agents : 
 Lyell v. Kennedy (14 App. Cas. 437, 459) ; stockbrokers, as in Han- 
 cock v. Smith (41 Ch. D. 456) ; bankers employed as special agents to 
 collect and remit, as in In re Brown, Ex parte Plitt (37 "W. B. 463) ; 
 and solicitors, as in In re Murray, Dickson v. Murray (57 L. T. 223), — 
 treated in precisely the same way as trustees. In Crowther v. Elgood 
 (34 Ch. D. 691) an auctioneer who made default in payment of 
 money produced by the sale of goods entrusted; to him for sale, and 
 which he had been ordered to pay, was held to be a person in a 
 fiduciary relation, and therefore liable to attachment under sect. 4 of 
 the Debtor's Act, 1869 (see note below). The identity of the law 
 relating to the following of trust funds and fiduciary funds was stated 
 by Baggallay, L.J., in New Zealand and Australian Land- Co. v. 
 Watson (7 Q. B. D. 383) thus : " There is no distinction as regards 
 this doctrine between an express trustee or an agent or bailee standing 
 in a similar fiduciary position." 
 
 The cases which apparently cut down really reinforce the doctrines 
 in the leading case. One class of cases (a) limit the agents to whom 
 these rules are applicable. In Kirkham v. Peel (28 W. E. 941) a 
 Manchester firm habitually consigned goods to a Bombay firm for sale 
 either on behalf of the Bombay or of the Manchester firm, and 
 claimed to follow the proceeds of the latter sales. The Bombay firm 
 dealt similarly with the Manchester firm, so that little money passed 
 between the two firms. In disallowing this claim, Jessel, M.R., 
 said: "The plaintiffs are ordinary merchants and commission agents 
 . . . and they receive goods from anybody and trade on their own 
 account, and] everybody who sends goods to them knows this. No 
 person in their position ever dreamt of keeping separate accounts at 
 their bankers, and no consignor of goods ever dreamt of such a thing 
 being done. . . . My observations in the case " (of In re Eallett's 
 Estate) " had nothing whatever to do with the case of a commission 
 merchant or agent. They were confined to the case of a bailee, 
 commonly called a factor, who sells single articles, and whose special 
 duty it is to remit the necessary proceeds to his principal." 
 
 In Lister & Co. v. Stubbs (45 Ch. D. 1), Messrs. Lister & Co. 
 employed their foreman Stubbs to buy materials for their business. 
 Stubbs took commissions from the firms from which he bought and 
 
FOLLOWING TRUST FUND. 
 
 183 
 
 invested his commissions. Messrs. Lister & Co.'s claim to follow 
 the commissions into these investments was rejected by Stirling, J., 
 on the following grounds : — " I assume that the money could he 
 recovered as money had and received to the use of the plaintiffs at 
 law ; hut it is not a necessary consequence that the plaintiffs in this 
 case could follow the money." The fact that an action for money 
 had and received lies is not sufficient to imply fiduciary relationship. 
 Stuhbs was something less than trustee or agent for his employer in 
 respect of these receipts. This judgment was affirmed on appeal, and 
 approved of in In re Thorpe, Vipont v. Radcliffe ([1891] 2 Ch. 360). 
 
 In In re Stenning, Wood v. Stenning ([1895] 2 Ch. 433) a solicitor 
 paid money produced by the sale of Mrs. Smith's securities into his 
 own account, and paid interest upon it until his death. Mrs. Smith 
 then claimed to follow the money, and to he paid in full out of 
 deceased's banking balance. North, J., held " that the money which 
 the testator had received for Mrs. Smith was not held by him upon a 
 trust for her," nor in a fiduciary capacity, " but that she allowed him 
 to retain it as a loan from her upon which he was to pay her interest. 
 This is conclusive against her claim." The solicitor did not act as 
 an agent to invest, as he did in In re Murray, cited above, where the 
 facts are somewhat similar, but as the principal with whom the 
 money was invested. (The same judge, however, decided in the case 
 of Gilbert v. Gonard (33 W. E. 302), which has not been the subject 
 of judicial comment, that it was possible to combine both capacities, 
 that of borrower and that of investing agent. In that case plaintiff 
 lent defendant £4000 for the purpose of being applied towards making 
 up the purchase-money for a manufactory, and of being lent on 
 mortgage of the manufactory when purchased. On defendant becoming 
 bankrupt, without having made the purchase or mortgage, plaintiff 
 recovered the defendant's entire banking balance in part payment of 
 the £4000. " I do not," said North, J., " know any case, and no case 
 has been referred to, in which there was precisely like this a duty 
 undertaken by a person receiving the loan to apply it in a particular 
 way," Probably therefore the circumstances of Gilbert v. Gonard are 
 not likely to recur.) 
 
 (6) Again, the agent must be agent of the persons who are defrauded. 
 
 In The New Zealand and Australian Land Co. v. Watson and 
 another (7 Q. B. D. 374) plaintiffs, who grew corn in New Zealand, 
 employed a del credere commission agent in Glasgow, who employed 
 defendant, who was a factor in London, to sell their wheat for them. 
 The proceeds of sale of wheat were traced in defendant's banking 
 account, on the principle of rules 4 and 5 of the leading case, but 
 the plaintiffs were not allowed to claim them, because defendant 
 though an agent was not their agent. 
 
 (c) The trust (if there is a trust) must be bond fide. In In re 
 Great Berlin Steamboat Co. (26 Ch. D. 616), Boden placed money to 
 the credit of the company at their hankers for the purpose of enabling 
 them to have a fictitious balance of a creditable amount in case 
 
 and invest- 
 ment 
 agents, 
 who are 
 really 
 borrowers ; 
 
 (6) in case 
 of agents 
 of others. 
 
 (e) The 
 trust (if 
 any) must 
 be a 
 genuine 
 trust. 
 
184 
 
 FOLLOWING TBUS1 FUND. 
 
 (d) The 
 bailee must 
 be a 
 genuine 
 bailee and 
 not pur- 
 chaser or 
 creditor. 
 
 Trustees' 
 cases. 
 
 Thorndike 
 v. Bunt. 
 
 Taylor r. 
 Blakelock. 
 
 inquiries were made. It was agreed that the money was not to be 
 used by the company for general purposes, but that they were to 
 hold it as trustees for Boden. The company went into liquidation. 
 Cotton, L. J., in delivering judgment, said : " I think it the just result 
 of the evidence that the balance now in dispute is ear-marked as part 
 of the money which the appellant advanced. Then the appellant 
 says that the company were to hold this sum in trust for him, and 
 the resolution no doubt says that they shall ; " but the trust was- 
 declared void, because it was not bond fide, and Boden had to prove 
 along with the general creditors. 
 
 (d) The bailee of the agent must be a bailee, and nothing more ; he 
 must not be a bond fide purchaser for value. In Collins v. Stimson 
 (11 Q. B. D. 142) Wilson paid into the bank money produced by a 
 sale of his goods, and then became bankrupt. The sale was a fraud 
 on his creditors within the meaning of the Bankruptcy Acts. He 
 then entered into a contract in an assumed name for the purchase of 
 land, and paid a deposit to the defendant, who was an auctioneer, by 
 a cheque on the bank. He failed to complete his contract, thereby 
 forfeiting the deposit to the vendor. Neither vendor nor defendant 
 had notice of the fraud. It was held that the trustee in bankruptcy 
 could not recover the deposit, which in the events that happened had 
 become vested bond fide and for value in the defendant as agent for 
 the purchaser. The expression "purchaser for value'' includes 
 creditor. 
 
 The following are two cases of the application of this doctrine 
 to trusts : — 
 
 In the well-known case of Thorndike v. Hunt (3 De G. & J. 563),. 
 Hunt was trustee of two different trusts. He applied funds of the 
 first trust to his own use, and then, procuring a power of attorney 
 from his co-trustee in the second trust, he replaced the deficiency im 
 the first trust fund by a transfer into that fund of a part of the funds- 
 of the second trust. A suit was brought in respect of breaches- 
 of trust in the first trust, and the trustees of that trust transferred the 
 sum thus placed into Court. It was held that the transfer into- 
 Court was a transfer for valuable consideration without notice, and 
 that consequently the cestuis que trustent under the second trust could 
 not follow the trust fund. " There was," said Knight Bruce, L. J., " a 
 debt due from the trustees ; they were called upon to pay it, and if it 
 had not been paid they would have been liable to execution. If the 
 fund had not been transferred into Court, the property might have 
 been obtained from them by other means." 
 
 The principle of Thorndike v. Hunt (ubi supra) was followed by 
 the Court of Appeal in Taylor v. Blakelock (32 Ch. D. 560), which 
 was described in the judgment of the Court of First Instance as a " case 
 of considerable nicety, and one of those painful cases in which, 
 as between two innocent persons, a loss having been sustained, the 
 Court had to decide upon whom that loss should fall." One Carter 
 was a co-trustee with Taylor of a will, and also co-trustee with 
 
FOLLOWING TRUST FUND. 185 
 
 Blakelock of a settlement. He misappropriated a considerable sum 
 of the settlement fund, and then applied an equal portion of Metro- 
 politan Stock belonging to the will fund in the purchase of Caledonian 
 Stock in the joint names of himself and Blakelock. Carter died 
 insolvent, and Taylor then commenced an action against Blakelock to 
 have the Caledonian Stock transferred to him. There was no dispute 
 of fact. Both parties were quite innocent of Carter's fraud, and 
 neither Blakelock nor his cestuis que trustent had any notice that the 
 stock was purchased with part of the will fund. The Court of 
 Appeal decided that Taylor had no right to " follow the trust fund," 
 as Blakelock must be treated as a purchaser for value without notice 
 with the legal right to the stock. " The term ' purchaser for value,' " 
 said Bowen, L. J., " is a well-known expression to the law. By the 
 common law of this country the payment of an existing debt is a 
 payment for valuable consideration. That was always the common 
 law before the reign of Queen Elizabeth as well as since. Commercial 
 transactions are based upon that very idea. It is one of the elemen- 
 tary legal principles, as it seems to me, which belong to every civilized 
 country ; and many of the commercial instruments which the law 
 recognizes have no other consideration whatever than a pre-existing 
 debt." 
 
 The two following cases are probably illustrations of the same Two 
 principle in the case of simple debts : — In Martin v. Roche, Eyton, bankers' 
 <fe Oo. (34 W. B. 253), an auctioneer paid into his general account with cases - 
 the defendants' bank money arising from the sale by auction of the 
 plaintiffs cattle; but at the date of payment his general account was 
 overdrawn. The bankers, therefore, who had no means of distinguish- 
 ing the auctioneer's private money from the money entrusted to him 
 by plaintiff, were creditors for value and without notice, not bailees of 
 the auctioneer. They accordingly appropriated the amount paid in to 
 extinguish the overdraft. The case, which is somewhat difficult to 
 follow, was probably decided in favour of the bankers on this ground. 
 But other grounds were also alleged. 
 
 In re Hallett & Co., Ex parte Blane ([1894] 2 Q. B. 237), surely 
 comes within this rule. Blane and Hallett made Hallett & Co. their 
 special agents to collect and receive the proceeds of company 
 Debenture Stock, which was in process of being paid off and reissued. 
 Other persons had made Hallett & Co. their special agents to buy 
 a larger amount of the same debenture stock. Consequently Hallett 
 & Co. had to pay more to the company than they had to receive from 
 the company, and paid this debt with the amount receivable in respect 
 of Blane and Hallett's share, plus a cheque of their own. They, how- 
 ever, credited Blane and Hallett's account with the value of the 
 debenture stock. On Hallett & Co.'s bankruptcy Blane and Hallett 
 could not claim this value, though the amount of cash in the bank 
 with which Hallett & Co. banked exceeded the amount of their claim. 
 But the ratio decidendi in Re Hallett & Co., Ex parte Blane, was 
 expressed in the following convenient maxim by Lord Esher, M.B. : — 
 
186 
 
 FOLLOWING TRUST FUND. 
 
 0) The 
 
 funds must 
 exist as 
 such, and 
 not be 
 merely 
 matters of 
 account. 
 
 (e) " Had there been anything in existence representing that which 
 the bankers were authorized to collect, Colonel Blane might have 
 followed it ; but all that can be shown is a settlement of account, and 
 a settlement of account cannot be followed ; " compare ante, p. 88. 
 The money must be traced as money into the hands of the defaulting 
 agent's bailee. The inference from these cases is that it is dangerous 
 to employ bankers in matters of this kind. Compare Kirhham v. 
 Peel (ubi supra). 
 
 Debtors 
 Acts. 
 
 Note. 
 
 The fourth section of the Debtors Act, 1869 (32 & 33 Vict. c. 
 62), which abolishes arrest or imprisonment for making default in 
 payment of a sum of money, specifies six cases where the power 
 of the Court to arrest or imprison still continues, among which are 
 "(3) Default by a trustee or person acting in a fiduciary capacity, 
 and ordered to pay by a Court of Equity any sum in his posses- 
 sion or under his control." By sect. 1 of the Debtors Act, 1878 
 (41 & 42 Vict. c. 54), a discretion is conferred upon the Court in any 
 case coming within the exceptions numbered 3 and 4 in sect. 4 of the 
 Debtors Act, 1869, viz. in case of default by a trustee or person 
 acting in a fiduciary capacity, and in case of default by a solicitor, 
 either to grant or refuse either absolutely or on terms any application 
 for a writ of attachment or other process or order of arrest or im- 
 prisonment, and any application to stay the operation of any such 
 writ, process, or order, or for discharge from arrest or imprisonment 
 thereunder. The discretion which is thus conferred has been judicially 
 characterized as a very anxious and delicate discretion, and the reader 
 who may desire to study the cases on the subject is referred to the 
 following list : — Middleton v. Chichester (L. B. 6 Ch. 156) ; Ex parte 
 Eooson (L. B. 8 Ch. 231) ; Evans v. Bear (L. E. 10 Ch. 76) ; Ferguson 
 y. Ferguson (L. B. 10 Ch. 661) ; Harris v. Ingram (13 Ch. D. 338) ; 
 Esdaile v. Visser (13 Ch. D. 421) ; Metcalfe's Case (13 Ch. D. 815) ; 
 Eolroyde v. Oarnett (20 Ch. D. 532) ; Tinnuchi v. Smart (10 P. D. 
 184) ; Litchfield v. Jones (36 Ch. D. 530) ; Preston v. Etherington (37 
 Ch. D. 104); In re Gent (40 Ch. D. 190); In re Walker (38 W. E. 
 766); Ex parte Claxton, In re Bishop (8 M. B. C. 221); Earl of 
 Aylesford v. Earl Poulett ([1892] 2 Ch. 60) In re Smith, Hands v. 
 Andrews ([1893] 2 Ch. 1) ; Piddoch v. Burt ([1894] 1 Ch. 343) : In 
 re a Solicitor ([1895] 2 Ch. 66). 
 
 See as to the criminal liability of a fraudulent trustee, 24 & 25 
 Vict. c. 96, s. 80, and note the change introduced on this subject by 
 the Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 27. See Eohson 
 on Bankruptcy, 7th ed. p. 631. 
 
TRUSTEES' STATUTES OF LIMITATIONS. 187 
 
 Trustees* Statutes of Limitations. 
 
 THORNE v. HEARD. 
 
 ([1895] A. C. 495). 
 
 Existing Statutes of Limitations apply to actions Principle. 
 against a trustee for breach of trust except where 
 the trustee (1) has been party or privy to a fraud ; 
 (2) or retains the trust property or its proceeds; 
 or (3) has received the same and converted it to 
 his use. 
 
 If fraud is relied on it must be fraud imputable 
 to the person who invoices the aid of the Statute ; and 
 property is neither retained nor converted by a trustee, 
 if his agent fraudulently converts it to Ms own use, and 
 the trustee is not benefited thereby. 
 
 Heard was entitled to a first mortgage for £1000; Summary 
 
 of facts. 
 
 Thorne to a second mortgage for £333; S., a solicitor 
 who had negotiated and prepared both mortgages for all 
 parties, was entitled to a third mortgage for £375 3s. 6d. 
 Heard exercised his power of sale in 1878 and sold the 
 property for £1700. S. conducted the sale and received 
 the purchase-money, out of which he paid £1000 to Heard 
 and retained the residue, giving Heard, or leaving among 
 his papers, a receipt signed by himself for payment of the 
 £333 to Thorne, and of the £375 3s. 6d. to himself. S. 
 converted the £700 to his own use, but paid interest on 
 the £333 to Thorne until 1892, when he became bank- 
 rupt. Heard had no actual knowledge of the existence 
 of Thome's mortgage. Held by the Court of First 
 Instance, by the Court of Appeal, and the House of 
 
188 TRUSTEES' STATUTES OF LIMITATIONS. 
 
 Lords (nem. eon.) that Heard was entitled to plead the 
 Statute of Limitations, and was not liable to Thorne for 
 the £333 and interest. 
 
 A mortga- A mortgagee after exercising his power of sale is trustee of the 
 gee trustee sur pi us p rocee d s f sa ] e f or the parties interested in the Equity of 
 of sale. Redemption : Matihison v. Clarke (3 Dr. 3). He is liable if he pays 
 
 the surplus to the wrong parties, Magnus v. Queensland National 
 Bank (37 Ch. D. 466), or allows it to lie idle even for a few months : 
 Charles v. Jones (35 Ch. D. 544). He must employ it to satisfy the 
 beneficiaries of whom he has notice or he must pay it into Court 
 forthwith, and this rule even extends to a case where he concurs in a 
 sale by a mortgagor and receives his mortgage debt out of the 
 purchase-money : West London Commercial Bank v. Reliance 
 Permanent Building Society (29 Ch. D. 954). Compare pp. 204, 205. 
 Breach of Applying these principles to the leading case, Eomer, J., and the 
 trust. Court of Appeal held, but the House of Lords only assumed, that 
 
 Heard had either knowledge or notice of Thome's mortgage. Lord 
 Herschell, L.C., questioned this view, and Lord Davey thought that 
 the question of knowledge depended on whether Heard had read S.'s 
 receipt. Again Eomer, J., had held that Heard was negligent in not 
 inquiring into S.'s authority to act for Thorne; and the Superior 
 Courts unanimously confirmed this view. A solicitor should produce 
 " a separate direction or authority from the person entitled to purchase- 
 money " or else a deed " having in the body thereof or endorsed thereon 
 a receipt : " Conveyancing and Law of Property Act, 1881, s. 56 ; 
 Trustee Act, 1893, s. 17 ; ante, p. 150. No question arose like that in 
 Magnus v. Queensland National Bank (ubi supra), as to whether 
 Heard was entitled to rely on S.'s representation that the money 
 payable to Thorne was payable to S. Such being the inference from 
 the facts, a breach of trust was clearly committed by Heard against 
 Thorne in 1878. Was it barred or was it not barred by sect. 8 of the 
 Trustee Act, 1888? 
 The T. Act, Sect. 1 and sect. 8 of the Trustee Act, 1888, are the only sections of 
 1888, s. 8. that Act which have survived, the rest of the Act having been repealed 
 and re-enacted by the Trustee Act, 1893. This was the first Act which 
 applied Statutes of Limitations to breaches of trust ; prior to this Act 
 trustees could only rely on the vaguer principles of equitable acqui- 
 escence, release, and confirmation. The 8th section provides as 
 follows : — 
 
 " Sect. 8. — (1) In any action or other proceeding against a trustee or 
 any person claiming through him, except where the claim is founded 
 upon any fraud or fraudulent breach of trust to which the trustee was 
 party or privy, or is to recover trust property or the proceeds thereof 
 still retained by the trustee or previously received by the trustee and 
 converted to his use, the following provisions shall apply :— 
 
TRUSTEES' STATUTES OF LIMITATIONS. 189 
 
 " (a) All rights and privileges conferred by any statute of limitations 
 shall be enjoyed in the like manner and to the like extent as they would 
 have been enjoyed in such action or other proceeding if the trustee or 
 person claiming through him had not been a trustee or person claiming 
 through him. 
 
 " (b) If the action or other proceeding is brought to recover money 
 or other property and is one to which no existing statute of limita- 
 tions applies," the action or proceeding is regarded as though it were 
 an action for money had and received ; " but so nevertheless that the 
 statute shall run against a married woman entitled in possession for her 
 separate use," but not against a beneficiary until entitled to possession. 
 
 " Sect. 8 (3) makes this section apply to actions brought in and 
 after 1890. Sect. 1 includes under " trustee " an executor, adminis- 
 trator, implied and constructive trustee, including a director of a 
 company : In re Lands' Allotment Go. ([1894] 1 Ch. 616) ; but see In 
 re Severn and Wye Go. ([1896] 1 Ch. 559), and for the old law as to 
 directors, see In re Sharpe ([1892] 1 Ch. 154) ; but does not include a 
 trustee in bankruptcy so as to exempt him from being called to 
 account, In re Cornish ([1896] 1 Q. B. 99), nor the official trustee of 
 charitable lands ; and " trustee " includes " trustees." See ante, p. 18. 
 
 With regard to the first exception to the rule that this statute 
 can be pleaded, Heard had clearly not been party or privy to any Fraud. 
 fraud. But S. was agent ; had S.'s fraud implicated Heard? 
 
 Fraud by an agent hound the principal in Blair v. Bromley (2 Ph. Agent's 
 354, 5 Ha. 542), followed in Moore v. Knight ([1891] 1 Ch. 547). In f ra ud - 
 the latter case money was deposited, in or about 1874, with a firm of 
 solicitors for investment. In 1876 their managing clerk embezzled 
 the money. One partner had died in 1877, and a receiver was ap- 
 pointed in 1878 for the purpose of winding up the partnership. Down 
 to 1877 the firm, and after that date the two surviving partners, 
 delivered accounts and paid interest on the supposed investments 
 down to 1886, when they discovered the embezzlement. These 
 accounts and payments were considered a representation by the firm 
 that the investments existed down to 1886 ; and equity construes 
 these representations as "a guarantee that the parties whose interest 
 might be affected by the misrepresentation shall be placed in the same 
 situation as if the facts represented were true" (p. 554). Conse- 
 quently all three partners or their estates had to make these repre- 
 sentations good, and the right of action accrued at the date of the last 
 representation, namely in 1886. In Thome v. Heard Lord Herschell's 
 view was that S. ceased to be the agent for Heard with regard to the 
 surplus at the moment at which Heard paid the surplus to him in the 
 erroneous belief that he was agent for somebody else. S. was not 
 "acting within the scope of his authority" as agent "while doing 
 something or purporting to do something on behalf of the principal" 
 (p. 502), for the simple reason that the relationship had long since 
 ceased. And there is this further limitation on the power of an agent 
 to commit his principal by his fraud : the fraud must be committed in 
 
190 TRUSTEES' STATUTES OF LIMITATIONS. 
 
 Date of 
 discovery 
 of fraud. 
 
 As to trust 
 property- 
 retained. 
 
 As to con- 
 version. 
 
 the interest of the principal. This was the case in Blair v. Bromley 
 r (uU supra), where the retired partner had the benefit of the fraud. In 
 -•Barwick v. English Joint Stock Bank (L. R. 2 Exc. 259, 265) Willes, 
 J., regarded these words, " for the master's benefit," as essential to the 
 case. Lord Selborne, in Eouldsworth v. City of Glasgow Bank (5 
 App. Cas. 317, 326) cited Mr. Justice Willes's definition with approval ; 
 and British Mutual Banking Co. v. Charnwood Forest Railway Co. (18 
 Q. B. D. 714) decided the very point. See post, p. 315. 
 
 But the argument of fraud was used for another purpose. Equity 
 has engrafted on the Statute of Limitations, 1623 (21 Jac. 1, c. 16), 
 the principle that, where there is concealed fraud, the right of action 
 accrues at the date of its discovery. Of course plaintiff must have kept 
 his eyes wide open (but see Betjemann v. Betjemann ([1895] 2 Oh. 474) 
 as to co-partners), or else he cannot avail himself of this plea. Since 
 the Judicature Act, 1873, every division of the High Court gives effect 
 to this equitable principle : Gihbs v. Guild (9 Q. B. D. 59). This 
 doctrine is incorporated into the Act for the Limitation of Actions and 
 Suits relating to Real Property, 1833 (3 & 4 Will. IV. c. 27, s. 26). 
 It was urged then that the right of action accrued at the date of the 
 discovery of the fraud (1892). It had been already decided that in 
 the case of the Act of 1833, Willis v. Howe ([1893] 2 Ch. 545), and it 
 was now decided that with regard to every action " if fraud or a non- 
 discovery of fraud is to be relied on to take a case out of the Statute of 
 Limitations it must be the fraud of, or in some way imputable to the 
 person who invokes the aid of the Statute of Limitations : " per Lord 
 Davey (p. 506). So that in answering the first argument about fraud 
 in the negative the Court had already answered this second argument 
 about fraud. 
 
 The word " still " retained means retained at the commencement of 
 the action (S. C. [1894] 1 Ch. 606) ; and the trustee "retains" it " if he 
 or any agent for him has it so that he can get it" (*'&.). " While the 
 money remained in S.'s hands without any change in the nature of 
 his possession of it, his retention of it was a retention by the first 
 mortgagees " (ib., p. 609). On the other hand, Lord Davey's view was 
 that retention by Heard ceased the moment that the money was paid 
 to a person whom he erroneously believed to be the agent of another. 
 This question which was insufficiently discussed really belongs to the 
 croup of questions discussed in In re Halletfs Estate. 
 ° In Wassell v. Leggatt ([1896] 1 Ch. 554) money was left before the 
 M. W. P. Act, 1882, to a wife's separate use without the intervention 
 of trustees. The husband was therefore implied trustee for her ; but 
 pocketed it. She recovered it from his executors nineteen years 
 afterwards, on the ground that he was her trustee and had " retained " 
 the trust money. See How v. Earl Winterton (74 L. T. 277). 
 
 But S. had converted it to his own use, and it seems from the 
 judgment that conversion by S. pat an end to constructive retention 
 by Heard. It was just as though " these moneys before action brought 
 had been stolen from Heard and the thief had remained unknown and 
 
MORTGAGEES COSTS. 
 
 191 
 
 the money unreoovered '\(ib., p. 6 14). Apparently the conversion must 
 be wrongful : In re Gurney, Mason v. Mercer ([1893] 1 Ch. 590). 
 
 Executor-trustees retained property in specie until 1882, when the 
 youngest cestui que trust attained twenty-one. This was a breach 
 of trust. In 1890 the beneficiaries brought an action against the 
 executor-trustees, alleging that the action was for a legacy, that the 
 right of action accrued in 1882, and that the time-limit within which 
 action must be brought was twelve years. Held that the limit was 
 six years, as the case fell within sect. 8 (1) (6) of the Trustee Act, 
 1888 : In re Swain, Swain v. Bringeman ([1891] 3 Ch. 233) ; secus 
 where there is no express trust, but a direction for maintenance which 
 the executor must carry out, In re Davis, Evans v. Moore ([1891] 3 
 Ch. 119), or where the property is left to executor-trustees upon trust 
 " subject to the payment of legacies : '' In re Barker, Buxton v. 
 Campbell ([1892] 2 Ch. 491). Compare In re Page, Jones v. Morgan 
 ([1893] ICh. 304). 
 
 It was decided in In re Somerset, Somerset v. Earl Poulett ([1894] 
 1 Ch. 231), that the date of the making of an improper investment is 
 the date of the right of action where the plaintiffs are of age and in 
 possession ; and the payment of interest thereon is not an acknowledg- 
 ment from which to date the right of action. Compare In re Bowden, 
 Andrew v. Cooper (45 Ch. D. 444) for improper investment; and 
 contrast In re Tucker ([1894] 1 Ch. 724 and 3 Ch. 429) and Moore 
 v. Knight (ubi supra) as to the effect of paying interest. 
 
 An estate by implication is a different estate to a preceding estate 
 by actual gift, and time does not begin to run under sect. 8 (1) (V) of 
 the T. A., 1888, till the second estate falls into possession : Mara v. 
 Browne ([1895] 2 Ch. 69). 
 
 Executor- 
 trustees. 
 
 Date of in- 
 vestment, 
 date of 
 right of 
 action. 
 
 Falling 
 into posses- 
 sion of 
 implied 
 estate. 
 
 Mortgagee s Costs. 
 
 NATIONAL PROVINCIAL BANK OP 
 ENGLAND v. GAMES. 
 
 (31 Ch. D. 582.) 
 
 A mortgagee is entitled to he allowed all costs which Principle. 
 he reasonably incurs in relation to the mortgage debt. 
 
 Games deposited with the Bank certain title deeds and Summary 
 writings accompanied by a memorandum by which he 
 
192 MOB TG AGUE'S COSTS. 
 
 charged the lands to which the deeds and writings related 
 with debts due or to become due from him to the Bank, 
 and agreed upon request to execute a legal mortgage. 
 
 A surety had given a promissory note for part of 
 Games's debt to the Bank, and some correspondence 
 took place with the surety, from whom nothing could 
 be recovered. The Bank called upon Games to execute 
 legal mortgages, and after investigating Games's title 
 prepared the deeds and corresponded with Games, who 
 refused to execute the mortgages. 
 
 A subsequent action for foreclosure by the Bank against 
 Games's trustee in bankruptcy was dismissed with consent 
 on the trustee paying the debt and costs, " including 
 therein any charges and expenses properly incurred by 
 them as mortgagees," such costs to be taxed. 
 
 The Bank claimed : (1) Costs of correspondence with 
 the surety ; (2) costs of investigating Games's title ; (3) 
 costs of preparing the legal mortgages ; (4) costs of 
 correspondence with Games as to the legal mortgage. 
 The Court of Appeal disallowed item (2), but allowed the 
 rest. 
 
 Origin of The Court of Appeal proceeded in this case on the principle laid 
 
 the rule in down by Lord Cottenham in Dryden v. Frost (3 My. & Cr. 670, 675) 
 contract. j n ^g f ]i ow j n g terms :— " The Court, in settling the account between 
 a mortgagor and mortgagee, will give to the latter all that his con- 
 tract, or the legal or equitable consequences of it, entitle him to 
 receive, and all the costs properly incurred in ascertaining or defend- 
 ing such rights, whether at law or in equity." In Betillin v. Gale 
 (7 Vesey, 383, 585) Lord Eldon says that the " mortgagee ought to be 
 indemnified to the extent that he acts reasonably as mortgagee; 
 which must mean reasonably with respect to such rights as his mort- 
 gage title gives him." See leading case Stottv. Milne, citing Cotterell 
 v. Stratton and Turner v. Hancock (ante, p. 161). 
 Costa of The costs of item (2) were disallowed because, if the contract had 
 
 mvestiga- |j een t ca n u p 0n tlie mortgagor to get in the legal estate wherever 
 tit ] c it was, an investigation of title might have been necessary ; but as 
 
 the mortgagor only agreed to mortgage his estate and interest, it was 
 unnecessary to look into the title any further than to see in what form 
 the mortgages ought to be drawn. 
 
MORTGAGEE'S COSTS. 193 
 
 As to item (3) it had been argued that the rule that a mortgagee Costs of 
 was to have his costs did not apply to the costs of proceedings between K' epari °f 
 the mortgagor and mortgagee. The Court of Appeal declined to gage <i eec i, 
 accede to this argument. The plaintiffs had an equitable mortgage 
 containing an agreement to execute a legal mortgage. They reason- 
 ably demanded a legal mortgage, and therefore their costs in relation 
 to it ought to be allowed. " They will be allowed any charges and 
 expenses properly incurred in or in reference to the preparation of the 
 •drafts, which will give them all they are entitled to in respect of such 
 inspection of the deeds as was necessary." 
 
 With regard to the costs of the correspondence with the surety, it Costs of 
 had been contended that as the mortgagee had two distinct positions corre " 
 — that of a creditor, and of a person holding security — he could not 
 charge against the mortgagor his costs incurred in the latter 
 character. To this the Court of Appeal answered : " A mortgagee 
 is a creditor, he has also a security for the debt, and whether he is 
 trying to get his money from the mortgagor, or from a surety, or out 
 of the mortgaged property, he is trying to enforce his rights as mort- 
 gagee. The costs of the correspondence with the surety must there- 
 fore be allowed. The costs of the correspondence with the mortgagor 
 are even more clearly relative to the position of the plaintiffs as 
 mortgagees." 
 
 The following passage from Seton on Judgments and Orders, 5 th Principle 
 ed. p. 1613, was cited with approval by Lord Justice Cotton : " Both in sta ted in 
 foreclosure and redemption actions the mortgagee is entitled to the e on ' 
 •costs of action, and also to all costs properly incurred by him in 
 reference to the mortgaged property for its protection or preservation 
 recovery of the mortgage money, or otherwise relating to questions 
 between him and the mortgagor, and to add the amount to the sum 
 •due to him on his security for principal and interest." 
 
 The provision as to costs in the Rules of the Supreme Court, i n r. s. C, 
 1883, 0. lxv., r. 1, and cited in the Note at the end of Stott v. 1883; 
 Milne (p. 164), applies to mortgagees as well as to trustees, etc. 
 
 In In re Wallis, Ex parte Lickorish (25 Q. B. D. 176), Pry, L.J., and h Y 
 pointed out that under the ordinary contract arising out of the relation 1 ^' ' 
 between a mortgagor and his mortgagee, a mortgagor if he desired to 
 redeem must pay (1) the principal debt ; (2) the interest thereon ; 
 (3) all proper costs, charges, and expenses incurred by the mortgagee 
 in relation to the mortgage debt or the mortgaged security ; (4) the 
 costs of litigation properly undertaken by the mortgagee in reference 
 to the mortgage debt or the security; (5) the mortgagee's costs of the 
 redemption action. And the rule is that to entitle a mortgagee who 
 is plaintiff in a foreclosure action to costs, other than costs in the 
 action, he must make out a special case as in Bolingbroke v. Hinde 
 (25 Ch. D. 795). 
 
 In Cotterell v. Stratton (L. E. 8 Ch. 295) and in In re Watts, Costs 
 Smith v. Watts (22 Ch. D. 12, 13), it was laid down that a mortgagee allowed, 
 cannot be deprived of his costs for a mere bona fide mistake in his 
 
 
 
194 
 
 MORTGAGEE'S COSTS. 
 
 Costs of 
 other 
 incum- 
 brancers. 
 
 Costs dis- 
 allowed. 
 
 Apportion- 
 ment. 
 
 Appeal. 
 
 Expenses. 
 
 Act of 
 1895. 
 
 account. Compare Bird v. Wenn (33 Ch. D. 215), where the mistake 
 arose on questions as to consolidation. 
 
 In Johnstone v. Cox (19 Ch. D. 17) a question arose as to the 
 priority of incumbrancers, and the order originally made might have 
 led, as the Court of Appeal said, "to a parody on the administra- 
 tion of justice" by sweeping away the entire fund. An appeal was 
 allowed as a question of principle was involved, and the general rule 
 was laid down to be that " the costs of incumbrancers are allowed to 
 be added to their securities if any difficult questions arise as to the 
 priority of incumbrancers, and so on ; and unless there has been some- 
 thing vexatious or something unusual in his conduct, the incumbrancer 
 gets his costs if the fund is sufficient to pay them.'' The Court, how- 
 ever, has a discretion in priority cases, and can order one or other of 
 the parties to pay the costs if a case for it is made out : Harpham v. 
 Shaddock (19 Ch. D. 207, 215). 
 
 Costs were given against the mortgagee in Nat. Bank of Australasia 
 v. United Eand-in-Eand Co. (4 App. Cas. 391) ; Hall v. Seward (32 
 Ch. D. 430, 436) (he claims the property) ; Ashworth v. Lord (36 
 Ch. D. 545, 551) (has no claim); Squire v. Pardoe (66 L. T. 243); 
 Greenwood v. Sutcliffe ([1892] 1 Ch. 1) (refused redemption); Charles 
 v. Jones (35 Ch. D. 544, 550) (makes gross error). 
 
 Costs are rateably apportioned as against two estates, where there is 
 no consolidation : Be Caux v. Skipper (31 Ch. D. 635). 
 
 Appeal lies on the question whether the mortgagee has been guilty 
 of misconduct ; but, if in spite of the misconduct the Court gives him 
 his costs, no appeal lies : Charles v. Jones (33 Ch. D. 80) ; discussed in 
 'in re Beddoe ([1893] 1 Ch. 547, 556). 
 
 A mortgagor cannot claim the surplus proceeds of a sale by the 
 mortgagee under his mortgage deed without crediting the mortgagee 
 with the enhanced value produced by reasonable expenditure by the 
 mortgagee : Shepard v. Jones (21 Ch. D. 469) : Henderson v. Astwood 
 ([1894] A. C. 150) (order). Compare the parallel order made in 
 Partition actions referred to in In re Jones ([1893] 2 Ch. 461) ; see 
 ante, p. 124 ; contrast ante, p. 113. 
 
 The Mortgagees Legal Costs Act, 1895 (58 & 59 Vict. c. 25) provides 
 that a solicitor-mortgagee shall be entitled to the same costs, etc., as 
 though he were retained by the mortgagee. Sect. 2 applies to " all 
 business transacted and acts done " by him " in negotiating the loan, 
 deducing and investigating the title to the property, and preparing and 
 completing the mortgage," such costs, etc., to be " recoverable from the 
 mortgagor." Sect. 3 applies to " all business transacted and acts done " 
 by him, " subsequent and in relation to such mortgage or to the security 
 thereby created or the property therein comprised ; " such costs, etc., 
 to be added to the security or recovered from the person on whose 
 behalf the same is done. Again sect. 2 applies to mortgages to a 
 solicitor after the Act; sect. 3 to mortgages to or vested in a solicitor, 
 and includes acts and mortgages before the Act. Both sections in- 
 clude acts by the firm of which the solicitor-mortgagee is member, and 
 
JUDGMENT IN MORTGAGE ACTIONS. 195 
 
 include cases where he is joint mortgagee. Sect. 3 does not apply to 
 cases in which judgments were given before the Act : Eyre v. Wynn- 
 Mackenzie ([1896] 1 Ch. 135). 
 
 By sect. 67 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), Jurisdic- 
 a County Court judge has, in addition to all powers and authorities tl011, 
 possessed by him, all the powers and authorities of a judge of the 
 Chancery Division of the High Court in actions for foreclosure or 
 redemption, or for enforcing any charge or lien where the mortgage 
 charge or lien does not exceed in amount the sum of £500. In 
 Crazier v. Doivsett (31 Ch. D. 67), where both plaintiff and defendant 
 lived in the same place, and an action was brought to foreclose a 
 mortgage for under £66, it was held, following Simons v. McAdam 
 (L. E. 6 Eq. 324), that the plaintiff was only entitled to such costs as 
 he would have obtained in the County Court. And see Scotto v.' Heritage 
 (L. B. 3 Eq. 212) ; Brown v. Eye (L. E. 17 Eq. 343). Compare 
 Williams v. Allen (60 L. T. 103), where the costs of proceedings in 
 the High Court were allowed. 
 
 Where the subject-matter is below £10 in value, action must be 
 brought in the County Court : Westbury v. Meredith (30 Ch. 387). 
 
 Judgment in Mortgage Actions. 
 
 DYMOND v. CROFT. 
 
 (3 Ch. D. 512.) 
 
 A mortgagee may since the Judicature Act combine Principle. 
 in one action the personal remedy on the covenant with 
 remedy by foreclosure. 
 
 A mortgagee brought an action for foreclosure and Summary 
 
 claimed by his writ an order directing personal payment 
 of the mortgage debt as well as the usual judgment for 
 foreclosure. The Eegistrar declined to insert the order 
 for personal payment as being contrary to the practice 
 of the Court of Chancery in foreclosure suits, but Jessel, 
 M.E., directed that the judgment should be drawn up as 
 claimed by the writ. 
 
 of facts. 
 
196 JUDGMENT IN MORTGAGE ACTIONS. 
 
 Mortga- l n this case, the mortgagee claimed to he entitled hy reason of the 
 
 double re- Judicatwe Act, to a douhle relief — viz. to obtain not only the equitable 
 lief under judgment for foreclosure but also the judgment on the covenant which 
 Judicature he would have obtained previously to the J. A., 1873, in a Common 
 Act, 1873. Law Court. " Both forms of relief," said Jessel, M.E., " are expressly 
 claimed. There is no reason now why they should not be combined 
 and the judgment may be drawn up accordingly." 
 
 " Before the Judicature Act," said the Court of Appeal, in Farrer 
 v. Lacy, Hartland & Co. (31 Ch. D. 42, 49), " a mortgagee had two 
 rights which were enforced in different tribunals — an action at law 
 against the mortgagor personally, and a suit in equity against the 
 mortgaged property. If he desired judgment on the covenant against 
 the mortgagor he could have brought an action at common law, and 
 if he succeeded, he got an immediate judgment for principal, interest, 
 and costs of that action. If he wished to foreclose his mortgage, he 
 must have proceeded in a Court of Equity, in which a different 
 account from that in the action at law would have been directed, and 
 the costs of suit would have been added to his costs as mortgagee. 
 The Judicature Act has enabled the two rights to he enforced together 
 by one proceeding in one and the same Court." 
 
 In Farrer v. Lacy, Hartland & Co., where the previous authorities 
 are cited, and where an elaborate form of order was settled and 
 approved by the Court of Appeal, the mortgagee brought his action, 
 claiming — (1) an account of what was due to him for principal, interest, 
 and costs under his security, including the costs, charges, and expenses 
 of an abortive sale ; (2) payment of what was due ; (3) foreclosure or 
 sale of the mortgaged property. The defendant contended that the 
 plaintiff was not entitled to immediate payment, hut that six months 
 ought to be allowed from the date of the certificate finding the 
 amount due. 
 
 North, J., ordered that the amount of principal and interest which 
 had been found by the certificate to be due to the mortgagee should 
 be paid within one month from the date of the certificate. On 
 this point Fry, L.J., in delivering the judgment of the Court of 
 Appeal, which affirmed the decision of North, J., said: "It has been 
 contended that the result of the Judicature Acts has been to preclude 
 the plaintiff in his action on the covenant, now that it is brought in 
 the Chancery Division, from obtaining immediate payment, and that 
 as by sect. 25, sub-sect. 11, of the Judicature Act, 1873, the rules of 
 equity are now to prevail, payment is to be postponed for six months. 
 No rule of equity exists that a sum immediately payable at law shall 
 not be payable for six months ; and in my judgment if at the hearing 
 the amount due should be proved, agreed to, or admitted, there should 
 be an order for immediate payment, with so much of the costs only 
 as would have been incurred if the action had been on the covenant 
 simply. There is no obligation to postpone payment, but I think it is 
 competent to the judge to postpone payment for such a time as he may 
 think reasonable; nothing that I am saying must be treated as in 
 
JUDGMENT IN MORTGAGE ACTIONS. 
 
 197 
 
 any way interfering with the discretion of a judge. The strict right 
 which the Court may, if it will, give effect to, is immediate payment 
 of the sum ascertained at the hearing." For a refusal to postpone 
 payment see Instone v. Elmslie (34 W. R. 592). 
 
 The following were the forms of orders settled by the Lord Justices 
 in Farrer v. Lacy, Eartland & Go. : — 
 
 "This Court doth order and adjudge that the plaintiff [name] do 
 recover against the defendant [name] £ , being the total of the 
 
 principal sum of £ , and of £ for interest thereon at £ 
 
 per centum per annum less tax, to the day of [the date of 
 
 the judgment], and also so much of his costs of this action as would 
 have been incurred if it had been brought for payment only, such 
 costs to be taxed by the Taxing Master. 
 
 "This Court doth order and adjudge that the following account be 
 taken : — 
 
 " 1. An account of what is due to the plaintiff for principal and 
 interest under the defendant's covenant to pay contained in the in- 
 denture of mortgage, dated [or promissory note, or as the case 
 may be] in the pleadings mentioned. 
 
 "And it is ordered that the plaintiff [name] do recover against the 
 defendant [name] the amount which shall be certified to be due to 
 him on taking the said account, and also so much of his costs of this 
 action as would have been incurred if it had been brought for payment 
 only, such costs to be taxed by the Taxing Master. 
 
 "And it is ordered that the following [further] accounts be 
 taken : — 
 
 " 2. An account of what is due to the plaintiff under and by virtue 
 of his mortgage security dated in the pleadings mentioned, 
 
 and for his costs of this action, to be taxed by the Taxing Master, 
 and in taking such account what if anything the plaintiff shall have 
 received from the defendant, under the aforesaid judgment, is to be 
 deducted, and the balance due to the plaintiff is to be certified. '' 
 
 The remaining portion of the judgment then provides for further 
 accounts, and finally directs that in default of payment the defendant 
 shall be foreclosed from all " right, title, interest, and equity of re- 
 demption," in the premises ; Seton, 5th ed. p. 1576 et seq. 
 
 In Earl Poulett v. Viscount Bill ([1893] 1 Ch. 277) a mortgagee 
 commenced an action in a similar form to that in Farrer v. Lacy, 
 and, before judgment, commenced a second action for interest, most of 
 which had accrued due since the date of the first action, and endorsed 
 this writ for the amount under Order ill., r. 6. It was held that 
 this second action was improperly brought, as the form of judgment 
 in the first action would be the same as that in Farrer v. Lacy, and 
 would include an order to pay all arrears of interest up to the date of 
 judgment. 
 
 See Greenough v. Littler (15 Ch, D. 93) for the form of foreclosure 
 judgment where the mortgage debt is payable by instalments. 
 
 In Lees v. Fisher (22 Ch. D. 283), the Court of Appeal decided that 
 
 Forms of 
 orders. 
 
 If the debt 
 and in- 
 terest is 
 proved, 
 admitted, 
 or agreed 
 at the 
 trial. 
 
 If the debt 
 and in- 
 terest is 
 not proved, 
 admitted, 
 or agreed 
 at the 
 trial. 
 
 In either 
 
 event, 
 
 add— 
 
 Order 
 in other 
 cases. 
 
action. 
 
 198 JUDGMENT IN MOB TQ AGE ACTIONS. 
 
 for the future the judgment for foreclosure in the case of an equitable 
 mortgage ought not, as formerly, to omit the word " foreclose,'' but 
 ought to contain directions that upon default the mortgagor will be 
 foreclosed, that the hereditaments will be discharged from all equity 
 of redemption, and that a conveyance from the mortgagor to the 
 mortgagee must be executed. But legatees of sums charged on land 
 are only entitled to sale, not to foreclosure : In re Owen ([1894] 3 Ch. 
 220). See Seton 5th ed. p. 1696. 
 
 In Exchange and Hop Warehouses, Limited v. Association of Land 
 Financiers (34 Ch.D. 195) it being shown that it was highly probable 
 that the amount due to the plaintiffs would greatly exceed the value 
 of the property, and that the costs of further proceedings would be 
 thrown away, an order was made staying the prosecution of accounts 
 and inquiries directed by a judgment in the nature of a foreclosure 
 judgment (unless the defendants would give security for the costs of the 
 proceedings). Liberty was however given to the defendants to apply. 
 The form in Coleman v. Llewellin (34 Ch. D. 143) should not be 
 followed except in special circumstances: Cheston v. Wells ([1893] 
 2 Ch. 151). 
 Commence- A great change as to practice was introduced by the Eules of 
 merit of December, 1885, Order lv., rr. 5a and 5b, enabling " any mortgagee or 
 mortgagor whether legal or equitable, or any person entitled to or 
 having property subject to a legal or equitable charge, or any person 
 having the right to foreclose or redeem any mortgage whether legal or 
 equitable," to take out as of course an originating summons returnable 
 in the Chambers of a Judge of the Chancery Division, " for such relief of 
 the nature or kind following as may by the summons be specified and 
 as the circumstance of the case may require (that is to say) — sale, 
 foreclosure, delivery of possession by the mortgagor, redemption, re- 
 conveyance, delivery of possession by the mortgagee." 
 
 5b. "The person to be served with the summons under the last 
 proceeding shall be such person as under the existing practice of the 
 Chancery Division would be the proper defendant to an action for the 
 like relief as that specified by the summons." 
 
 Since the date of this order a plaintiff who commences an action by 
 writ under the old practice will be liable to pay the extra costs in- 
 volved : O'Eelly v. Culverhouse ([1887] W. N. 36) ; Barr v. Harding 
 (58 L. T. 74) ; secus where immediate payment is asked for : Brooking 
 v. Slcewis (58 L. T. 73). 
 
 No endorsement is special within the meaning of Order in., r. 6, 
 unless it is confined to the claim mentioned in the rule ; consequently 
 a writ endorsed for a liquidated mortgage debt and also for foreclosure, 
 etc., is not specially endorsed within the meaning of the rule : Imbert- 
 Terry v. Carver (34 Ch. D. 506). 
 
 A demand for interest is not a demand for a liquidated sum where 
 accounts have been ordered and a receiver has been appointed : 
 Poulett v. Bill (ubi supra) ; and see Lynde v. Waithman ([1895] 2 
 Q. B. 180). 
 
JUDGMENT IN MORTGAGE ACTIONS. 199 
 
 An order for foreclosure ought not to be granted on a writ of 
 summons for accounts under Order xv. : Bissett v. Jones (32 Ch. D. 
 €37) ; but see Dyott v. Nevile ([1887] W.N. 35). 
 
 "According to the general rule, all persons interested in the Parties, 
 security, or in the equity of redemption, must be before the Court, or 
 sufficiently represented : " Seton, 5th ed. p. 1602 ; and see Order lv., 
 r. 5b, above; Ooote on Mortgages, ch. 78, sect. 13. A first mortgagee 
 who is plaintiff, and is also one of the second mortgagees, must not be 
 joined as defendant : Wavell v. Mitchell (64 L. T. 560). Trustees and 
 executors sufficiently represent their cestuis que trustent (In re Mitchell, 
 65 L. T. 851) : In re Booth and Kettlewell's Contract (67 L. T. 
 550). In Aylward v. Lewis ([1891] 2 Ch. 81), the defendant to a 
 foreclosure action died insolvent before the foreclosure was made 
 absolute. There was no legal representative of his estate, but an 
 order was made in Chambers appointing one of his next-of-kin to 
 represent his estate for the purposes of the action. The Court, how- 
 ever, refused to make the foreclosure absolute in the absence of a 
 properly constituted representative of the mortgagor. And see Bolton 
 v. Salmon ([1891] 2 Ch. 48, 52) (tenants in common) ; Griffith v. 
 Pound (45 Ch. D. 553) ; Fairfield & Co. v. London and East Coast, 
 etc., Co. ([1895] W. N. 64) (debenture holders). 
 
 In Bissett v. Jones (32 Ch. D. 635) the defendant did not appear, Default 
 and the plaintiff claimed under Order xm., r. 3, immediate judgment of appear- 
 for a specific sum for principal and interest, and under Order xv. an 
 account and foreclosure. He was held entitled to judgment for the 
 liquidated amount, notwithstanding the fact that an account had been 
 asked, but not to foreclosure ; Chitty, J., declining to follow his own 
 previous decision on this point in Smith v. Bavies (28 Ch. D. 650) ; 
 and see Blake v. Harvey (29 Ch. D. 827). 
 
 Where the writ is endorsed for foreclosure, but not for payment, 
 and defendant does not enter an appearance, plaintiff cannot claim 
 payment by his statement of claim, and proceed to judgment for such 
 payment under Order xxvn., r. 11 : Law v. Philby (35 W. E. 401, 
 450). And where the statement of claim alleges that a liquidated 
 amount is due, but claims an account of what is due and payment of 
 the amount found due and foreclosure, etc., and defendant does not 
 appear, plaintiff cannot obtain judgment for the amount alleged to be 
 due under Order xxvn., r. 11 : Faithfull v. Woodley (43 Ch. D. 287). 
 See also Hunter v. Myatt (28 Ch. D. 181); Piatt v. Mendell and 
 Doble v. Manley (below). 
 
 Where there are successive incumbrancers the usual practice was to Periods for 
 allow six months from the date of the certificate to the party first r«demp- 
 entitled to redeem, and three months each to succeeding parties : Seton, 
 p. 1641. But this is a right which the puisne incumbrancers must 
 claim: Piatt v. Mendel (27 Ch. D. 246). The rule unanimously 
 adopted by the judges was thus stated by Chitty, J., in Doble v. 
 Manley (28 Ch. D. 664) :— 
 
 " That where the defendants did not appear, one time only should 
 
200 
 
 JUDGMENT IN MORTGAGE ACTIONS. 
 
 Interval for 
 sale. 
 
 be fixed for redemption whether the statement of claim alleged that 
 they were entitled or only that they claimed to be entitled to incum- 
 brances. To fix several successive periods was to make a decree as 
 between co-defendants which should not be granted except upon the 
 request of a defendant. If any subsequent mortgagee appeared and' 
 claimed to have successive periods fixed, the Court would have to 
 consider whether he was entitled to them." Compare Smith v. Olding 
 (25 Ch. D. 462). 
 
 The Court will not decide questions of priority on an originating 
 summons : In re Giles, Seal, etc., Advance Co. v. Michell (43 Ch. D. 
 391) ; therefore where there is a dispute about priority the Court will 
 not on an originating summons allow successive periods for redemption ; 
 and even where there is an action commenced by writ and where 
 there is no dispute the Court will not give successive periods as of 
 course : Smithett v. Hesketh (44 Ch. D. 161) ; Tufdnell v. Nicholls 
 (56 L. T. 152). For order where one period is named, see Biddulph 
 v. Billiter, etc., Co. ([1895] N. W. 98). 
 
 In ordering a sale the Court fixed three months' interval from the 
 date of certificate in Green v. Biggs (52 L. T. 680) and Jones x. Harris 
 (55 L. T. 884); in Charlewood v. Hammer (28 Sol. J. 710) an imme- 
 diate sale was ordered ; in Wade v. Wilson (22 Ch. D. 235) (as cited 
 [1885] W. N. 128), the interval was one month. 
 Possession. The summons ought to but need not claim possession : Jenkins v. 
 Ridgeley (41 W. E. 585) ; Le Bas v. Grant ([1895] W. N. 28) ; Best 
 v. Applegate (37 Ch. D. 42); and the order nisi for foreclosure ought 
 to provide for delivery of possession in default of redemption : William- 
 son v. Burrage (56 L. T. 702) ; but see Keith v. Day (39 Ch. D. 452). 
 
 It was decided in Thynne v. Sari ([1891] 2 Ch. 79) that an order 
 for the delivery of possession of mortgaged property, forming part of a; 
 judgment for foreclosure absolute, ought to contain a description of 
 the property as set forth in the mortgage deed. The object is to- 
 enable the sheriff to identify the property of which he is ordered to 
 deliver possession. And see Order xviii., r. 2. For proceedings for 
 foreclosure absolute see National, etc., Society v. Raper ([1892] 1 
 Ch. 54). 
 
 Where a mortgagee claims payment of the debt, the statement of 
 claim should contain an express statement of the covenants relied on : 
 Law v. Philby (35 W. R. 401). 
 
 Special facts which may affect the amount due on the mortgage, 
 e.g. the valuation of a security in bankruptcy must be pleaded or 
 mentioned to the Court before judgment : Sanguinetti v. Stuckey's. 
 Banking Co. (2) ([1896] 1 Ch. 502). 
 
 It may here be noticed that a novel right has been conferred upon 
 mortgagors by sect. 15 of the Conveyancing Act, 1881. That section,, 
 which is retrospective in its operation and is to have effect " notwith- 
 standing any stipulation to the contrary," provides that " where a 
 mortgagor is entitled to redeem he shall by virtue of this Act have, 
 power to require the mortgagee, instead of reconveying and on the 
 
 Statement 
 of claim. 
 
 Conveyanc- 
 ing Act. 
 
JUDGMENT IN MORTGAGE ACTIONS. 201 
 
 terms on which he would be bound to reconvey, to assign the mort- 
 gage debt and convey the mortgaged property to any third person 
 as the mortgagor directs, and the mortgagee shall by virtue of this 
 Act be bound to assign and convey accordingly." The section, how- 
 ever, is not to apply in the case of a mortgagee being or having been 
 in possession. As to whom see Hall v. Heward (32 Ch. D. 430) ; In 
 re Prytherch (42 Ch. D. 590). For form of reconveyance, see 
 Plomley v. Felton (14 App. Cas. 61). 
 
 Sect. 12 of the Conveyancing Act, 1882, passed in consequence of Conveyanc- 
 Teevan v. Smith (20 Ch. D. 724), provides that the right of a mort- ^Li ct ' w 
 gagor under sect. 15 of the Conveyancing Act, 1881, to require a ' 
 
 mortgagee instead of reconveying to assign the mortgage debt and 
 convey the property to a third person, shall belong to and be capable 
 of being enforced by each incumbrancer or by the mortgagor, not- 
 withstanding any intermediate incumbrance ; but a requisition of an 
 incumbrancer shall prevail over a requisition of the mortgagor, and as 
 between incumbrancers a requisition of a prior incumbrancer shall 
 prevail over a requisition of a subsequent incumbrancer. 
 
 The provisions of these sections were considered in Alderson v. 
 Elgey (26 Ch. D. 567), where it was held that a tenant for life of 
 mortgaged premises who has failed to keep down the interest, and who 
 has obtained an order to redeem on terms protecting the remainder- 
 man against further costs, is not entitled to require the mortgagee to 
 transfer the mortgage debt and premises to a third person. 
 
 In Everitt v. Automatic Weighing Machine Co. ([1892] 3 Ch. 506), Company 
 a company which had a lien on its shareholders' shares was compelled ca ses. 
 to transfer it to a nominee of a shareholder under these sections. 
 Compare Smithett v. Hesheth (ubi supra). In General Credit and 
 Discount Co. v. Glegg (22 Ch. D. 549), distinguishing Carter v. Wake 
 (4 C. D. 605), which was a case of mere pledge, the transferee of 
 railway shares by way of security for a debt was held entitled to the 
 ordinary remedies of legal mortgagees. 
 
202 
 
 MORTGAGE— SALE BY TEE COURT. 
 
 Mortgage — Sale by the Court. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 anting Act, 
 1881,8.25. 
 
 UNION BANK OP LONDON v. INGRAM. 
 
 (20 Ch. D. 463.) 
 
 The Court has now, under the Conveyancing Act, 
 1881, s. 25, jurisdiction to order a sale of mortgaged 
 property at any time hefore the foreclosure has become 
 absolute. 
 
 The Union Bank of London, as second mortgagees, 
 brought an action for redemption and foreclosure of cer- 
 tain property against the first mortgagee in possession, 
 six subsequent incumbrancers, and the trustee in bank- 
 ruptcy of the mortgagor. A complicated judgment was 
 made, allowing successive rights of redemptions and 
 foreclosures to the Bank, the six incumbrancers, and the 
 trustee in bankruptcy. The Bank redeemed the first 
 mortgagee, and then applied to the Court for an order 
 for sale. Evidence was produced that the utmost value 
 of the property was less than the amount due to the 
 Bank. The Court of Appeal decided that the property 
 should be sold. 
 
 The 25th section of the Conveyancing Act, 1881, which was con- 
 sidered by the Court of Appeal in the leading case as materially 
 enlarging the power contained in the now repealed Chancery Procedure 
 Act, 1852 (15 & 16 Vict. c. 86, s. 48), provides that: 
 
 " (1) Any person entitled to redeem mortgaged property may have 
 a judgment or order for sale instead of for redemption in an action 
 brought by him either for redemption alone, or for sale alone, or for 
 sale or redemption, in the alternative. 
 
 " (2) In any action, whether for foreclosure, or for redemption, or 
 for sale, or for the raising and payment in any manner of mortgage 
 
MORTGAGE — SALE BY TEE COURT. 203 
 
 money, the Court, on the request of the mortgagee, or of any person 
 interested either in the mortgage money or in the right of redemption, 
 and notwithstanding the dissent of any other person, and notwith- 
 standing that the mortgagee or any person so interested does not 
 appear in the action, and without allowing any time for redemption 
 or for payment of any mortgage money, may, if it thinks fit, direct 
 a sale of the mortgaged property on such terms as it thinks fit, 
 including, if it thinks fit, the deposit in Court of a reasonahle sum 
 fixed by the Court, to meet the expenses of sale and to secure per- 
 formance of the terms." Sub-sect. 3 enables the Court to order 
 security for costs. Sect. 5 enables the Court to direct payment into 
 Court of the amount necessary to pay off incumbrances. And see 
 now E. S. C, 1883, 0. li. 
 
 The Court considered in the leading case that the words " instead 
 of a foreclosure," which were contained in the corresponding section 
 of the Chancery Procedure Act, 1852, were designedly omitted 
 after the words " direct a sale ; " it was accordingly held that a sale 
 could be ordered at any time before the judgment for foreclosure 
 became absolute. See Western v. Davidson ([1882] W. N. 28), where, 
 however, the mortgagor who requested a sale had to pay costs, etc. 
 " The Act," the Court said, " is an enabling and remedial statute," Effect of 
 giving the Court a very beneficial power, and it ought therefore to be the section, 
 construed liberally. " One effect of it," said Jesse', M.R., " is to 
 allow a mortgagor whose property is worth more than the mortgage 
 money, but who cannot raise it, to obtain a sale and get the benefit of 
 the surplus. The Court has power to impose terms so as to take care 
 that no injustice shall be done to any one, and I think that the legis- 
 lature has given it jurisdiction to make the order at any time before 
 foreclosure absolute." 
 
 In Woolley v. Colman, (21 Ch. D. 169), the Court made an order Order for 
 for sale by the mortgagor on an interlocutory application by him 
 before trial, but security for costs was ordered. In Davies v. 
 Wright (32 Ch. D. 220), where an equitable mortgagee asked for 
 a sale, the judge to whom the question was left by consent, gave the 
 conduct of the sale to the mortgagor, as it was more to his interest 
 that the best price should be obtained, and considered that security 
 for costs need not be given. 
 
 In Brewer v. Square ([1892] 2 Ch. Ill) the mortgagors requested 
 a sale out of Court by them, although the mortgagees had a right, and 
 desired to exercise their statutory power of sale immediately. Per- 
 mission was given to the mortgagor to sell within three months on 
 giving security for costs. In these three cases a reserve price was 
 fixed, and the purchase-money was ordered to be paid into Court. 
 
 In Norman v. Beaumont ([1893] W. N. 45) the first mortgagees 
 applied for foreclosure on the ground that the security was insufficient 
 to pay them. The fourth mortgagee adduced evidence that the 
 security was worth far more, and asked for and obtained the conduct 
 of the sale on paying 10 per cent, of his estimated value into Court. 
 
 sale. 
 
204 
 
 MORTGAGE — SALE BY THE COURT. 
 
 Equitable 
 mortgagee. 
 
 Qualified 
 order. 
 
 Order re- 
 fused. 
 
 Time for 
 sale. 
 
 Mortga- 
 gees not 
 trustees. 
 
 But there is, according to Christy v. Van Tromp ([1886] W. N. Ill), 
 no general rule as to who shall conduct the sale. 
 
 In Oldham v. Stringer (33 W. R. 251) the Court ordered a sale in 
 lieu of a foreclosure at the request of an equitable mortgagee by 
 deposit of deeds, though the deposit was not accompanied by any 
 agreement to execute a legal mortgage. 
 
 In Wade v. Wilson (22 Ch. D. 235), where the plaintiff at the trial 
 of a foreclosure action asked for a sale and the defendant did not 
 appear, the Court ordered an account of what was due to the plaintiff 
 to be first taken and then that only so much of the property should be 
 sold as would be sufficient to satisfy the plaintiffs claim. 
 
 In The Merchant Ranking Company of London v. The London and 
 Banseatic Rank (55 L. J. Ch. 479) the estate was insufficient to cover 
 the first mortgage, but the second mortgagees and the mortgagor pro- 
 duced evidence that the value of the property had increased and was 
 likely to increase, and they asked for a sale, offering at the same time 
 to pay into Court a sum sufficient to cover costs. The Court con- 
 sidered that their discretion ought to be judicially exercised, that it 
 was not just that the rights of the mortgagee should be postponed by 
 a speculative sale, and refused the application. 
 
 In The Provident Clerks Association v. Lewis (67 L. T. 644) 
 North, J., refused to order a sale at the request of the second mort- 
 gagees, as he was not satisfied that the security was sufficient to 
 cover the first mortgage, and the property consisted of freeholds and 
 leaseholds in several places, and could not be put up for sale in one 
 lot, so that a reserve price to protect the first mortgagee could not, be 
 fixed. In Smithett v. Hesketh (44 Ch. D. 161, 163) North, J., refused a 
 sale as there was no evidence of value. Sale was refused in Bopkinson 
 v. Miers (34 Sol. J. 128) on similar grounds. 
 
 The time within which a sale is ordered is usually three months. 
 See p. 200. 
 
 Mortgagees selling on an order of Court are in the same position as 
 mortgagees exercising the power of sale conferred by the Conveyancing 
 Act, 1881, s. 19 : Union Rank v. Munster (37 Ch. D. 51). In 
 Warner v. Jacob (20 Ch. D. 220) it was held that a mortgagee in 
 exercising his power of sale is not, except as to the surplus of the 
 proceeds of sale over the mortgage money, a trustee for the mort- 
 gagor (see ante, p. 188), and that if ho exercises his power bond 
 fide for the purpose of realizing his debt, without corruption or 
 collusion with the purchaser, the Court will not interfere, even 
 though the sale be very disadvantageous, unless the price is so 
 low as to be evidence of fraud. In Farrar v. Farrars Limited 
 (40 Ch. D. 395, 411) Lindley, L.J., described the duties of a 
 mortgagee-vendor thus: "If in exercise of his power he acts bond 
 fide and takes reasonable precautions to obtain a proper price the 
 mortgagor has no redress, even although more might have been 
 obtained for the property if the sale had been postponed." As to his 
 liability for mistake see Tomlin v. Luce (43 Ch. D. 191). In 
 
REAL PROPERTY LIMITATION ACT, 1874. 205 
 
 Martinson v. Clowes (21 Oh. D. 857 ; affirmed W. N. 1885, p. 41), 
 the property was sold in lots by auction by a building society who 
 were mortgagees selling under their power of sale, and their secretary 
 ■openly bid for and purchased two lots on his own account, and it was 
 held that the sale must be set aside. Compare Henderson v. Astivood 
 {[1894] A. C. 150); National Bank of Australasia v. United Hand 
 in Hand Co. (4 App. Cas. 391). Contrast Kennedy v. De Trafford 
 ([1896] 1 Ch. 762). See as to the Court granting an injunction to 
 restrain a mortgagee from exercising his power of sale, under leading 
 •case of Bay v. Brownrigg, post, pp. 320, 326. 
 
 Application is made by originating summons under Order lv., r. 5a, Practice, 
 cited in the preceding chapter, or by summons in Chambers under 
 Order lv., r. 2 (14). If sect: 5 of the C. A., 1881, is not applied, or 
 
 some incumbrancers are not parties, the sale is made " < - u i 1 : e( ,t to \ 
 
 ( shall ) 
 the incumbrances of such of the incumbrancers (ifany) as i , -,-, . > 
 
 consent to the sale : " Daniel's Chancery Precedents Form, 1286. An 
 originating summons can be amended without a summons (ib. F. 
 1082). For form to amend originating summons, see Marcy and 
 Dodd on Originating Summons, Form 55. 
 
 Heal Property Limitation Act, 1874 — Mortgage 
 Debts. 
 
 SUTTON v. SUTTON. 
 
 (22 Ch. D. 511.) 
 
 After twelve years from the last payment of interest Principle. 
 or acknowledgment in writing of debt the personal 
 remedy of the mortgagee upon the covenant is barred, 
 as well as the remedy against the land. 
 
 The plaintiff brought an action in 1882 on a covenant Summary 
 contained in a certain indenture exe&uted in May, 1868, 
 for payment of £1850 with interest at 5 per cent., to- 
 gether with all the costs " relating to the said indenture 
 
206 REAL PROPERTY LIMITATION ACT, 1874. 
 
 and attending the execution of the trusts and powers 
 contained therein." 
 
 The defence was that the indenture of May, 1868, 
 was in fact a mortgage of certain lands, and that no part 
 of the principal nor any interest thereon had been paid 
 by the defendant since November, 1869, which was more 
 than twelve years before the commencement of the 
 action, and the defendant claimed the benefit of the Beal 
 Property Limitation Act, 1874, and of all Statutes of 
 Limitations. 
 
 The Court of Appeal decided that the plaintiff was not 
 entitled to recover. 
 
 Statutes of Sect. 8 of the Real Property Limitation Act, 1874 (37 & 38 Vict, 
 inn a- c gr^ prongs that " no action or suit or other proceeding shall be 
 brought to recover any sum of money secured by any mortgage, 
 judgment or lien, or otherwise charged upon or payable out of any 
 land or rent at law or in equity, or any legacy, but within twelve 
 years next after a present right to receive the same shall have accrued 
 to some person capable of giving a discharge for or release of the 
 same, unless in the mean time some part of the principal money or 
 some interest thereon shall have been paid, or some acknowledgment 
 of the right thereto shall have been given in writing, signed by the 
 person by whom the same shall be payable, or his agent, to the person 
 entitled thereto, or his agent, and in such case no such action or suit or 
 proceeding shall be brought but within twelve years after such pay- 
 ment or acknowledgment or the last of such payments or acknow- 
 ledgments, if more than one, was given." Sects. 1 and 7 of the same 
 Act, supplemented by 7 Will. IV. & 1 Vict. c. 28 (as amended by the 
 Act of 1874, s. 9), extended similar protection to mortgagors and 
 mortgagees against actions for foreclosure, ejectment, and redemption. 
 Sect. 10 of the Act of 1874 prohibited any evasion of the terms 
 of sect. 7 by coupling the security or legacy with an express trust ; 
 the existence of an express trust was to make no difference so far as 
 the remedy against the land was concerned. The limit was to be 
 twelve years in each of these cases. On the other hand twenty years 
 is the corresponding period of limitation prescribed for the recovery of 
 specialty debts generally by 3 & 4 Will. IV. c. 42, s. 3 et seq. To 
 Which was which, then, of these enactments was a specialty covenant to pay 
 applicable ? a mortgage debt subject ? Did it fall within the twelve years' rule 
 or the twenty years' rule? The Court of Appeal pointed out that 
 the object of the Statutes of Limitations was to give legislative 
 authority to what had previously rested on judicial decision, viz. the 
 
MORTGAGE DEBTS. 
 
 207 
 
 presumption of payment after a certain lapse of time " or such delay- 
 on the part of the creditor as entitles the debtor to believe that he will 
 not be called upon to pay " (p. 517), and that the Legislature intended to 
 attain this object by applying these principles both to actions at law 
 and suits in equity. It had been contended that the effect of these 
 words was only to limit the recovery of the money so far as it could 
 be recovered by a sale of the land or by the receipt of the rents. 
 
 To this, Jessel, M.R., said there were two objections — (1) that it 
 put words into the section which were not to be found there ; and (2) 
 that it gave no meaning to the words which were in the section, 
 because you could not get the money as against the land at the time 
 when the Act was passed except by a suit in the Court of Chancery. 
 A further reason was that it would be absurd that you should get rid 
 of the greater, viz. the liability of the land, and retain the less, viz. 
 the personal liability to pay. The primary object of the Act was no 
 doubt to bar actions for the recovery of land or for enforcing charges 
 thereon, but this section had gone beyond that point, and barred an 
 action on a covenant in a mortgage deed, because it was an action to 
 recover money charged upon land. 
 
 Further, in Fearnside v. Flint (22 Ch. D. 579) the fact that the Collateral 
 mortgage debt was secured by a collateral bond given by the mortgagor bon( l' 
 made no difference, and the specialty debt was held barred, as in 
 Sutton v. Sutton ; the reason being that "no distinction can exist 
 between a covenant contained in a mortgage deed and a collateral 
 bond given at the same time as the mortgage." 
 
 In the case of In re Frisby, Allison v. Frisby (43 Ch. D. 106), by a Covenant 
 mortgage deed dated 1872, a mortgagor and his surety jointly and °7 surety, 
 severally covenanted for payment of the mortgage debt with interest. 
 The mortgagor paid the interest till 1880. The surety died in 1888, 
 without ever having made any payment or given any acknowledgment. 
 The executrix of the mortgagee claimed to be a creditor against the 
 surety's estate for the mortgage debt and interest. It was decided by 
 the Court of Appeal (affirming the decision of Kay, J.) that the pay- 
 ment of interest by the mortgagor prevented the statute from running 
 in favour of the surety, and that consequently the claim against the 
 surety's estate was not barred. But there was a difference of opinion 
 as to the grounds for this decision. Bowen, L.J., following Kay, J., 
 said : " I do not think that this section was intended to apply to 
 personal actions under a covenant in a mortgage deed if not brought 
 against the mortgagor or his representatives. The language of the 
 section appears to me to point at one liability and one person, not to 
 two liabilities existing in two different persons. Assuming, however, 
 that the section is applicable, I am of opinion that payment of in- 
 terest by the mortgagor kept the debt alive as against the surety." 
 On the other hand, Lord Justice Cotton held that sect. 8 of the Act 
 applies to an action against the surety as well as to one against the 
 mortgagor. Lord Justice Fry refrained from expressing an opinion on 
 the point. Compare Lewin v. Wilson (11 App. Cas. 639). 
 
208 REAL PROPERTY LIMITATION ACT, 1874. 
 
 Cases 
 
 where this 
 rule does 
 not apply. 
 
 Covenant 
 by surety. 
 
 In re 
 England. 
 
 Kibble v. 
 Fairthorne. 
 
 In all these cases the rule that the mortgage debt is one and indi- 
 visible for the purposes of the Act was rigidly adhered to. 
 
 We now come to three cases which constitute real exceptions to this 
 rule. ' 
 
 The principle of In re Frisby was held not to apply where a col- 
 lateral bond had been given by a surety to secure a mortgage debt 
 and interest: In re Powers, Lindsell Y.Phillips (30 Ch. D. 291). 
 The Court of Appeal approved of the decision in Fearnside v. Flint, 
 and said that to hold otherwise would be to give a different effect to 
 an instrument because it was not written on the same sheet of paper : 
 here, however, the proceedings were to enforce a different debt not 
 charged on land, and were not between the same parties. It will be 
 seen that In re Powers stands to In re Frisby, as Fearnside v. Flint 
 stands to Sutton v. Sutton ; and it may be doubttd therefore whether 
 the distinction between In re Powers and In re Frisby can be main- 
 tained : indeed, the parallel is completed by the fact that the Lord 
 Justices referred to payment of interest by the mortgagor as an alter- 
 native ground of decision in In re Powers. 
 
 In In re England, Steward v. England ([1895] 2 Ch. 100, 820), 
 the cases where ho interest was paid nor acknowledgment made owing 
 to the beneficiary of the estate being the beneficiary of the mortgage 
 debt, were discussed. 
 
 In Topham v. Booth (35 Ch. D. 607), which was a case of this 
 kind, one and the same person was tenant for life of the estate and 
 mortgage debt ; the remaindermen of the mortgage debt were never- 
 theless entitled to foreclose. In Dibb v. Walker ([1893] 2 Ch. 429), 
 where the facts were similar, the remaindermen of the mortgage debt 
 were allowed to maintain an action against the legal personal repre- 
 sentatives of the mortgagor. In In re England the remaindermen 
 claimed to maintain a similar action to that which was the subject of 
 decision in Dibb v. Walker ; but their claim was rejected on the ground 
 that the tenant for life of the mortgage debt had been tenant-in-fee 
 simple of the equity of redemption. If he had been tenant for life of 
 the equity of redemption, it might have been said that there was a 
 duty (which the remainderman could have enforced against his estate) 
 to keep down the interest ; and equity expects every man to do his 
 duty. But the owner in fee simple has no such duty. Why, then, 
 should equity assume that he keeps down the interest ? The question 
 has never before arisen except in the converse case of Coope v. Cress- 
 well (L. E. 2 Ch. 112), where it was held that payments by the person 
 absolutely entitled to the personalty did not keep the charge alive 
 against the realty. The debt remained, but the charge was gone. So 
 in this case mutatis mutandis, the debt was gone, although the charge 
 presumably (pp. 107, 826) remained. The unity of the debt was 
 severed. Only the remedy survived. 
 
 Again, the provision of 3 & 4 Will. IV. c.27, s. 34, which declares 
 that when the action is barred the title is extinguished, received a 
 striking illustration in Sands to Thompson (22 Ch. D. 614), and in 
 
MORTGAGE DEBTS. 209 
 
 Kibble v. Fairthorne ([1895] 1 Ch. 219). la the latter case a 
 mortgagor's (A. B.) mortgage debt, and the mortgagee's (C. D.) right 
 to recover the land by a foreclosure action was barred in 1887. In 
 1892 the mortgagor conveyed the land to the use of E. P. in fee simple 
 by way of mortgage. In 1893 A. B. acknowledged his indebtedness 
 to 0. D. Bomer, J., held that before 1893 "not only was the 
 mortgagee's " (0. D.) " remedy against the land barred, but the charge 
 itself was extinguished." C. D. therefore had " no right to the 
 land." The acknowledgment by A. B. may have revived the remedy 
 on a personal debt which was never extinguished ; but sect. 34 of 3 & 
 4 Will. IV. c. 27, had extinguished the right and title to the land, and 
 acknowledgment could not revive an extinct charge on land. The 
 debt by specialty had outlived the mortgage. 
 
 "We append a few notes on what payment of interest or acknowledg- Acknow- : 
 ment is requisite for the purposes of this Act. ledgment, 
 
 " The underlying principle of all the Statutes of Limitations is that a 
 payment to take a case out of the statute must be a payment by a 
 person liable as an acknowledgment of right : " per Jessel, M.B., in 
 Harlock v. Ashberry (19 Ch. D. 539, 545). A payment of rent by a 
 tenant of the mortgagor to the mortgagee (ib.), a payment of interest 
 or an acknowledgment by a solicitor employed at one time by the 
 mortgagor, Newbould v. Smith (33 Ch. D. 127 ; affirmed on other 
 grounds, 14 App. Cas. 423), an acknowledgment by one of two joint 
 mortgagees who were on the face of the deed trustees, Richardson v. 
 Younge (L. B. 6 Ch. 478), is insufficient. An acknowledgment or 
 payment must be made by the proper parties, and meant to be an 
 admission. Firth v. Slingsby (58 L. T. 481) contains an instance of 
 acknowledgment by correspondence. 
 
 In Kinsman v. Rouse (17 Ch. D. 104) the rule that prevailed pre- Generally, 
 viously to 3 & 4 Will. IV. c. 27, that no lapse of time barred the 
 right of a mortgagor to redeem the whole where he occupied part of 
 the mortgaged lands, was held to have been repealed by that statute. 
 The same case decided that the provisions in these Statutes of Limita- 
 tions relative to persons under disability do not apply to redemption 
 actions. Compare Forster v. Patterson (17 Ch. D. 132). 
 
 As to annuities charged on land, see Hughes v. Cole (27 Ch. D. 231). 
 The absence of acknowledgment or payment is fatal to the mort- 
 gagor's right to redeem against a mortgagee in possession, although 
 the latter was originally let into possession as agent for the former: 
 Marhwick v. Hardingham (15 Ch. D. 339). 
 
 As to when legatees can be considered cestuis que trustent, see In 
 re Davis, Evans v. Moore ([1891] 3 Ch. 119) ; In re Barker ([1892] 
 
 2 Ch. 491). 
 
 As to dates when right of action accrues, see Heath v. Pugh (7 App. 
 Cas. 235) (mortgagee) ; In re Brown's Estate, Brown v. Brown 
 ([1893], 2 Ch. 300) (against surety to mortgage) ; In re Owen ([1894] 
 
 3 Ch. 220) (by legatee of reversion). 
 
 These Statutes of Limitations must be pleaded: B. S. O. (0. xix.,r. 15). 
 
 P 
 
210 MOB TGA GE — PRIOBITIES. 
 
 Mortgage — Priorities . 
 
 NORTHERN COUNTIES OF ENGLAND FIRE 
 INSURANCE CO. v. WHIPP. 
 
 (26 Ch. D. 482.) 
 
 Principle. A legal mortgagee may he postponed to a subsequent 
 
 equitable mortgagee (1) when he has assisted in or 
 connived at a fraud which has led to the creation of a 
 subsequent equitable estate without notice of the prior 
 legal estate ; (2) when he has entrusted the title deeds 
 to an agent to raise money, and the estate thus created 
 has by the fraud or misconduct of the agent been 
 represented as being the first estate. 
 
 But the Court will not postpone the prior legal 
 estate to the subsequent equitable estate on the ground 
 of any mere carelessness or want of prudence on the 
 part of the legal owner. 
 
 of facts. 
 
 Summary Crabtree, who was manager of the plaintiff company, 
 executed a legal mortgage of his freehold for £4500 
 to the company, delivered the title deeds to them, and 
 received the money. The deeds were placed in the 
 company's safe, of which Crabtree had a duplicate key. 
 Crabtree took the deeds out of the safe, mortgaged the 
 property to Mrs. Whipp, who had no notice of the 
 company's mortgage, and handed over the deeds. The 
 Court of Appeal decided that the company was entitled 
 to priority over Mrs. Whipp. 
 
 The problem to be determined in the leading case was what 
 conduct in relation to the title deeds on the part of a mortgagee 
 
MORTGA QE— PRIORITIES. 2 1 1 
 
 who has the legal estate is sufficient to postpone such mortgagee Loss of 
 in favour of a subsequent equitable mortgagee who has obtained priority by 
 the title deeds without knowledge of the legal mortgage. "The Jo!! fffa2 . ee 
 question," the Court stated, " is not what circumstances may as 
 between two equities give priority to the one over the other, but 
 what circumstances justify the Court in depriving a legal mortgagee 
 of the benefit of the legal estate." 
 
 Applying, then, these conclusions to the facts of the case before 
 them, the Court came to the conclusion that, though there was gross 
 carelessness on the part of the plaintiffs in the mode in which they 
 allowed their directors to deal with the securities, there was nothing 
 in it evidencing any fraud. Gross carelessness is held evidence of 
 assistance in committing fraud if a man " wilfully shuts his eyes to 
 the facts : " per James, L.J., in Ratcliffe v. Barnard (L. E. 6 Ch. 652). 
 There was nothing of the kind here. Further, "their carelessness 
 may be called gross, but in our judgment it was carelessness likely 
 to injure and not to benefit the plaintiff company, and accordingly 
 has no tendency to convict them of fraud." There was negligence, 
 but the word "negligence" implies a duty which is neglected, and 
 men have no duty to keep title deeds (like fierce dogs and reservoirs) 
 iu safe custody, so that the word is misleading. This doctrine was 
 moreover expressly repelled by the judgment of the House of Lords 
 in the Agra Bank v. Barry (L. E. 7 H. L. 135), where it was said 
 that the duty of investigating title and inquiring after deeds is not a 
 duty which a purchaser or mortgagee owes to the possible holder of a 
 latent title or security. The Court of Appeal, however, suggested 
 that if in any case it could be shown that the prior legal mortgagee 
 had undertaken any duty as to the custody of the title deeds towards 
 any given person, had neglected that duty and had thereby injured 
 the person to whom he owed the duty, the legal estate might be 
 postponed by reason of the negligence. Again, there was no proof 
 that the company had constituted Crabtree their agent with authority 
 to raise money, but, on the contrary, the evidence went far to negative 
 the existence of such an authority. The present case consequently 
 did not fall under either of the classes of cases in which, according to 
 the authorities, a legal mortgagee ought to be postponed by the Court 
 to a subsequent equitable incumbrancer. 
 
 The cases upon the subject, the Court of Appeal said, fell into two Two cate- 
 catesories : — CI) " Those which relate to the conduct of the legal § 01 ' ies ° 
 
 ('3.S6S 
 
 mortgagee in not obtaining possession of the title deeds ; " and (2) 
 " those which relate to the conduct of the legal mortgagee iu giving 
 up or not retaining the possession of the title deeds alter he has 
 obtained them. The two classes of cases will not be found to differ 
 in the principles by which they are to be governed, but they 
 do differ much in the kind of fraud which is to be most naturally 
 looked for." 
 
 The first category of cases was divided into the four following 
 classes : — 
 
212 
 
 MORTGAGE— PRIORITIES. 
 
 Legal 
 mortgagee 
 not obtain- 
 ing posses- 
 sion of 
 title deeds. 
 
 Legal 
 mortgagee 
 parting 
 with title 
 deeds. 
 
 1. " Where trie legal mortgagee or purchaser has made no inquiry 
 for the title deeds, and has been postponed either to a prior equitable 
 estate, as in Worthington v. Morgan (16 Sim. 547), or to a subsequent 
 equitable owner who used diligence in inquiring for the title deeds, as 
 in Clarke v. Palmer (21 Ch. D. 124). In these cases the Courts have 1 
 considered the conduct of the mortgagee in making no inquiry to be 
 evidence of the fraudulent intent to escape notice of a prior equity, 
 and in the latter case that a subsequent mortgagee who was in fact 
 misled by the mortgagor taking advantage of the conduct of the legal 
 mortgagee, could, as against Mm, take advantage of the fraudulent 
 intent." Thus in Lloyd's Banking Co. v. Jones (29 Ch. D. 221) the 1 
 owner of the legal estate was the trustee of a lady's marriage settle- 
 ment. He made no inquiry for the title deeds, which were deposited 
 with a bank to secure overdrafts. The bank had no notice of the settle- 
 ment (though they had notice of the marriage), and were accordingly 
 preferred to the trustee down to the date of notice of the settlement. 
 
 2. "Where the legal mortgagee ■ has left the deeds in the hands; 
 of the mortgagor,'' or any other agent, Brocklesby v. Temperance 
 Building Society ([1895] A. C. 173, 184), "with authority to deal 
 with them for the purpose of raising money on security of the estate,. 
 and he has exceeded the collateral instructions given to him. In 
 these cases the legal mortgagee has been postponed, as in Perry- 
 Herrick v. Attwood (2 De G. & J. 21). This case was decided, not 
 on the ground that the legal mortgagees had been guilty of fraud, but 
 on the ground, that as they had left the deeds in the hands of the 
 mortgagor for the purpose of raising money, they could not insist, as. 
 against those who in reliance on the deeds lent their money, that the 
 mortgagor had exceeded his authority.'' 
 
 3. "Where the legal mortgagee has made inquiry for the deeds,, 
 and has received a reasonable excuse for their non-delivery, and has 
 accordingly not lost his priority, as in Barnett v. Weston (12 Ves. 
 130), Hewitt v. Loosemore (9 Hare. 449), Agra Bank v. Barry (L. R, 
 7 H. L. 135)." Compare Manners v. Mew (29 Ch. D. 725). 
 
 4. "Where the legal mortgagee has received part of the deeds, 
 under a reasonable belief that he was receiving all, and has accord- 
 ingly not lost his priority, as in Sunt v. Elmes (2 De Gr. F. & J. 
 578), Ratcliffe v. Barnard (L. R. 6 Ch. 652), and Colyer v. Finch 
 (5 H. L. C. 905)." Compare Atherley v. Burnett (33 W. R. 779). 
 
 The second category, i.e. the cases where the mortgagee having; 
 received the deeds has subsequently parted with them or suffered 
 them to fall into the hands of the mortgagor, were divided into the 
 following classes : — 
 
 1. " Where the title deeds have been lent by the legal mortgagee 
 to the mortgagor upon a reasonable representation made by him as to 
 the object in borrowing them, aud the legal mortgagee has retained 
 his priority over the subsequent equities as in Peter v. Russell or 
 Thatched House Case (1 Eq. Cas. Abr. 321), Martinez v. Cooper 
 (2 Russ. 198)." 
 
MORTGAGE — PRIORITIES. 213 
 
 2. "Where the legal mortgagee has returned the deeds to the 
 mortgagor for the express purpose of raising money on them, though 
 with the expectation that he would disclose the existence of the prior 
 security to any second mortgagee : Briggs v. Jones (L. E. 10 Eq. 92). 
 In such cases the Court has on the ground of authority postponed 
 the legal to the equitable estate. This is the same iu principle as 
 the decision in Perry-Herrick v. Attwood (ubi supra)." Compare 
 a similar principle of mercantile law discussed in Cole v. North 
 
 Western Bank (L. E. 10 C. P. 355) ; secus, where one of two executor- 
 mortgagees acts thus without the authority of his co-executor : In re 
 Ingham, Jones v. Ingham ([1893] 1 Ch. 352). 
 
 3. " If a person permits title deeds which belong to his security to 
 he dealt with for the purpose of creating a preferential charge of a 
 definite amount, and the limit is exceeded, he cannot as against 
 innocent third parties, who have advanced their money without 
 notice of the limit, complain that the authority which he gave has 
 been exceeded in that respect : " per Lord Macnaghten, Brocklesby v. 
 Temperance Building Society ([1895] A. C. 173). 
 
 In National Provincial Bank of England v. Jackson (33 Ch. D. 1) Equitable 
 the Court of Appeal decided that the principle laid down in the mortga- 
 leading case, that a legal mortgagee will not be postponed to a gees ' e c- 
 subsequent equitable mortgage on the ground of mere carelessness, 
 •did not apply as between equitable claims, "as between equitable 
 claims the question is whether one party has acted in such a way as 
 to justify him in insisting on his equity as agaiDst the other" (p. 13). 
 Compare Farrand v. Yorkshire Banking Co. (40 Ch. D. 182) ; Taylor 
 v. Russell ([1892] A. C. 244, 262). In N. P. Bank of England v. 
 Jackson two ladies, whose freehold property was subject to a mort- 
 gage, were induced by their brother J. to convey their share to him 
 in consideration of a debt alleged to he due to him, and payment 
 •of a sum of money. There was no consideration whatever for the 
 deeds, and the deeds were Dever read over or explained to the ladies, 
 Taut were signed in full reliance on J.'s statement. Next day J. de- 
 posited the deeds at the plaintiff bank as security for a loan, and the 
 bank manager was told by J. that the ladies were not to receive any 
 consideration for their conveyances, although the conveyances recited 
 the alleged debt and consideration money. The manager communi- 
 cated with the bank's solicitor, but did not tell him that no con- 
 sideration had passed, and the title was accordingly accepted. Held, 
 by the Court of Appeal, that the conveyances were voidable, and 
 not void, and therefore passed the legal estate ; and that the bank, 
 owing to their negligence, must have their equity postponed to that of 
 the ladies. 
 
 The principle numbered "4," with regard to legal mortgages, 
 applies to equitable mortgages also : Dixon v. Muckleston (L. E. 
 S Ch. 155, 161). 
 
 In Carritt v. Real and Personal Advance Co. (42 Ch. D. 263) the 
 plaintiff Carritt purchased an equity of redemption of leaseholds, 
 
214 MORTGAGE — PRIORITIES. 
 
 and took an assignment to his confidential clerk named Chuck, who 
 executed a declaration of trust in favour of Carritt. Among Chuck's 
 duties one was to put away the plaintiff's securities in a safe. Chuck 
 took advantage of his position to represent himself to the defendant 
 company as absolute owner of the property. He then executed to 
 them an equitable charge of the equity of redemption, deposited 
 with them the deed of assignment, and absconded. Chitty, J., 
 decided that there was no negligence on the part of Carritt sufficient 
 to deprive him of his prior equitable title. The case was covered 
 by the Shropshire Union Railways and Canal Co. v. Reg. (L. B. 
 7 H. L. 496). It had been suggested that a recital as to Chuck 
 having agreed to purchase the property for a certain sum was a 
 misstatement, and that therefore the party authorizing the mis- 
 statement had the worst equity ; but Chitty, J., said that this recital 
 was merely common form, and meant to keep a trust off the title, not 
 to mislead. 
 
 In In re Richards, Euniber v. Richards (45 Ch. D. 589), these two 
 cases were followed. In that case a solicitor having in 1883 received 
 from a client named Horner a sum of money for investment repre- 
 sented to the client that he had invested it on a specified mortgage, 
 the fact being that the mortgage was one previously taken by the 
 solicitor in his own name. The solicitor paid interest on the amount 
 of the mortgage debt to the client or to the client's executors down 
 to his own death in 1888. Shortly before his death the solicitor 
 deposited the title deeds of the mortgaged property with his own 
 bankers to secure an overdraft. Stirling, J., decided " that, the title 
 of both claimants being equitable, they rank according to priority of 
 date," and that Horner had not lost his priority by leaving his title 
 deeds in the charge of his solicitor. Compare Isaac v. Worstencroft 
 (67 L. T. 350). 
 
 naufraaio " ^ man w ^° ^ as ^ on * fi^ e P a ^ money without notice of any other 
 
 title, though at the time of the payment he as purchaser gets nothing 
 but an equitable title, may afterwards get in a legal title if he can 
 and may hold it, though during the interval between the payment 
 and the getting in of the legal title he may have had notice of some 
 prior dealing inconsistent with the good faith of the dealing with 
 himself: " per Lord Selborne, in Blackwood v. London Chartered Bank 
 of Australia (L. E. 5 P. C. 92, 111). "There is nothing in itself 
 inequitable in so disarranging equities," per Lord Macnaghten, in 
 Taylor v. Russell ([1892] A. C. 244, 261). But if the outstanding 
 legal estate is a satisfied term or is vested in a bare trustee this cannot 
 be done, Harpham v. Shaddock (19 Ch. D. 207, 214), because here the 
 subsequent equitable mortgagee has constructive notice of the prior 
 equity: per Jessel, M.E., Mumford v. Stohwasser (18 Eq. 562); per 
 Fry, L. J., Taylor v. Russell ([1891] 1 Ch. 28). Similarly where there 
 is an express trust for the incumbrancer, whose equity it is sought to 
 displace. Supposing, however, the outstanding legal estate is held by 
 or conveyed through a trustee for a third party who has nothing to do 
 
 Tabula in 
 
MORTGAGE— PRIORITIES. 
 
 215 
 
 with the dispute about priority, the subsequent equitable mortgagee 
 may employ the expedient and obtain the advantage stated by Lord 
 Selborne. And see Bailey v. Barnes ([1894] 1 Ch. 25, 37) and chapter 
 on Constructive Notice. 
 
 It was held in Fourth City Mutual Benefit Building Society v. Building- 
 Williams (14 Ch. D. 140) that where the legal estate in land has society 
 been vested in a building society as mortgagees and the society is paid m0T ff:',-. 
 off and gives the statutory receipt under the Building Societies Act to legal 
 of 1874, the legal estate is vested in the equitable mortgagee who is estate, 
 first in point of time unless the society is paid off by an equitable 
 mortgagee without notice of prior incumbrances, in which case the 
 legal estate vests in him ; and see Pease v. Jackson (L. E. 3 Ch. 576) ; 
 Robinson v. Trevor (12 Q. B. D. 423), where the right was limited to 
 the amount advanced to pay off the building society ; and Sangster 
 v. Cochrane (28 Ch. D. 298). 
 
 Being so vested in him he will be able to tack on to his legal estate Tacking, 
 any advances made by him without notice of prior equitable mort- 
 gages, Hosking v. Smith (13 App. Cas. 582), except in cases between 
 7th of August, 1874, and 1st of January, 1876 : Robinson v. Trevor 
 (ubi supra). 
 
 A transferee of an equitable mortgagee need not give notice to Notice. 
 a mortgagor in order to protect his title : In re Richards (45 Ch. D. 
 589, 595 et seq.) ; but it will give him an advantage if the mortgagors 
 are trustees. An incumbrancer of a trust fund who first gives notice 
 to any of the trustees obtains priority over any prior incumbrancer who 
 has given no notice to any of them ; but the other trustees are not 
 affected by this notice so as to render them liable for anything they 
 may do subsequently to its receipt: Low v. Bouverie ([1891] 3 
 Ch. 82); and notice to one of two trustees who dies without com- 
 municating it to his co-trustee is good : Ward v. Buncombe ([1893] 
 A. C. 369). Notices should be given by incumbrancers to trustees of 
 a derivative instead of to trustees of an original settlement : see 
 Stephens v. Green ([1895] 2 Ch. 148, 161) ; as to stop orders (ib.) ; 
 Mack v. Postle ([1894] 2 Ch. 449). 
 
 The mortgagee by assignment of book debts will lose his priority 
 if he does not give notice to the debtors. Eegistration of a lis 
 pendens with regard to his mortgage is not notice, as the doctrine 
 of lis pendens applies only to realty : Wigram v. Buckley ([1894] 3 
 Ch. 483). 
 
216 
 
 CONSOLIDATION OF MOETGAGES. 
 
 vsqC 
 
 Consolidation of Mortgages. 
 
 Principle. 
 
 JENNINGS v. JORDAN. 
 
 (6 App. Cas. 698.) 
 
 The Court leans against the extension of the doctrine 
 of the consolidation of mortgages. 
 
 Summary Thomas Tale mortgaged Blackacre to Merrit, and 
 
 of facts. ° ° 
 
 settled the equity of redemption on his daughter on her 
 marriage. He subsequently mortgaged Whiteacre to 
 John Tale. The two mortgages became vested in 
 Jennings. The question was whether Jennings had a 
 right to consolidate the two mortgages as against the 
 persons entitled under the settlement, and the House of 
 Lords held that he had no such right. 
 
 Statement 
 •of the 
 principle 
 of consoli- 
 dation. 
 
 Reason for 
 the rule. 
 
 "A mortgagee, who holds several distinct mortgages under the 
 same mortgagor, redeemable, not by express contract, but only by 
 virtue of the right which (in English jurisprudence) is called ' equity 
 of redemption,' may within certain limits, and against certain persons 
 (entitled to redeem all or some of them), ' consolidate ' them, that is, 
 treat them as one, and decline to be redeemed as to any, unless he is 
 redeemed as to all " (per Lord Selborne, L.O., p. 700). 
 
 The reason for the rule is that equity acts in, personam and a Court 
 of Equity will not assist a mortgagor in getting back one of his 
 estates unless he pays all that is due, though secured on a different 
 estate. The mortgagor is coming into a Court of Equity to obtain its 
 assistance in getting back an estate which at law belongs to the mort- 
 gagee, and it is held inequitable to allow him to get back an estate of 
 more value than the debt charged on it, and to leave the mortgagee 
 with an estate charged with a debt due by the mortgagor which may 
 be of larger amount than the value of the estate. 
 
 The Court since this decision, which overruled Tassell v. Smith 
 (2 De G. & J. 713) and practically overruled Beevor v. Luck (L. R. 4 
 Eq. 537), has refused to extend the doctrine of consolidation, and 
 the high-water mark of the doctrine is at the present day represented 
 by Tint v. Padget (see below). 
 
CONSOLIDATION OF MORTGAGES. 217 
 
 In the following cases the reader must assume that proper notice 
 of incumbrances was given to subsequent purchasers and mortgagees, 
 etc. : — 
 
 (a) A. B. mortgages v. to 0. D., and x. y. z. to 0. D. ; after that Cases ? f 
 A. B. cannot, nor can a subsequent assign by way of purchase or of ?? nso ' a " 
 mortgage, etc., from A. B. (E. F.), redeem x. y. z. without redeeming v. 
 
 (b) A. B. mortgages v. to K. L., and x. y. z. to M. N. ; then K. L. 
 and M. N. transfer their mortgages to 0. D. ; after that, etc., as in (a). 
 See White & Tudor's Leading Cases, Marsh v. Lee, 6th ed. vol. i. p. 
 696. 
 
 (c) A. B. mortgages v. to K. L., and x. y. z. to M. N. ; then conveys 
 v., x. y. z. to E. F. ; then K. L. and M. N. transfer their mortgages to 
 C. D. ; after that, etc., as in (a). Vint v. Padgei (2 De Q. & J. 611), 
 as cited but not approved in Pledge v. White ([1896] A. C. 187), and 
 followed in Pledge v. Carr ([1895] 1 Ch. 51), affirmed (74 L. T. 323). 
 The facts in Andrews v. City Permanent Benefit Building Society 
 (44 L. T. 641) are similar, E. P. being second mortgagee of both 
 properties, instead of purchaser (but see below). 
 
 (d) A. B. mortgages x. y. z. to G. H., and v. to others ; then mort- 
 gages v., x. y. z. to E. P. ; then the first mortgages on v. are transferred 
 to C. D. ; then G. H. transfers his mortgage on x. y. z. to C. D. ; after 
 that, etc., as in (c) : Pledge v. Carr (ubi supra). 
 
 (e) A. B. mortgages v. for a private debt to 0. D. ; then A. B. and Cases of no 
 his partners 0. P. and Q. R. mortgage x. y. z. for a partnership debt consolida- 
 te 0. D. ; after that semble, that A. B. and his assigns can redeem 
 
 x. y. z. without redeeming v. : Cummins v. Fletcher (14 Ch. D. 699, 
 710), overruling Beevor v. Luck (L. B. 4 Eq. 537). 
 
 (/) A. B. and his partner Q. R. mortgage v. for a partnership debt 
 to C. D. ; then, etc., after that, etc. as in (e) : In re Raggett, Ex parte 
 Williams (16 Ch. D. 117). 
 
 ( g) A. B. executes a voluntary settlement of x. y. z. to E. P. ; then 
 mortgages x. y. z. to C. D. ; then mortgages v. to C. D. ; after that 
 E. P. may redeem x. y. z. without redeeming v. : In re Walhampton 
 Estate (26 Ch. D. 391). 
 
 (A) A. B. mortgages x. y. z. to C. D. ; [then or previously mortgages 
 s. t. to G. H.] ; then conveys x. to E. P. for value ; then mortgages v. 
 to C. D. ; [then s. t. is transferred to C. D.] ; after that E. P. can 
 redeem x. y. z. without redeeming v. : Jennings v. Jordan ; but as to 
 s. t. qusere, ib. pp. 716-719, but see (i). 
 
 (i) A. B. mortgages v. to C. D. ; then mortgages x. y. z. by demise 
 to G-. H. ; then mortgages x. y. z. in fee to E. P. ; then G. H. assigns 
 his mortgage to C. D. : after that, etc., as in (g) : Earter v. Colman 
 (19 Ch. D. 630), not following Beevor v. Luck. See (e). Contrast (c). 
 The mortgage to E. F. was really of y., s. t. ; but the judgment justifies 
 the above statement. 
 
 (_/) A person who is mortgagor of v. to C. D. mortgages x. y. z. to 
 G. H. ; then devises v. to A. B., and x. y. z. to E. P. ; then C. D. 
 transfers his mortgage to G. H. ; after that, etc., as in (g) : White v. 
 
218 CONSOLIDATION OF MORTGAGES. 
 
 Hillacre (3 Y. & C. Ex. 597) as cited and followed in Barter v. 
 Colmcm. 
 
 (h) A. B. mortgages x. y. z. to G. H. ; then mortgages x. y. z. to 
 E. F. ; then mortgages v. to 0. D. ; then G. H. transfers his mort- 
 gage on x. y. z. to C. D. ; after that, etc., as in (g) : Baker v. Gray 
 (1 Oh. D. 491). 
 
 (I) A. B. mortgages x. y. z. to G. H. ; then mortgages x. y. z. to 
 K. L. ; then mortgages v. to M. N., who transfers his mortgage to 
 C. D. ; then G. H. transfers his mortgage on x. y. z. to C. D. ; then 
 A. B. mortgages v., x. y. z. to E. F. ; [then mortgages v., x. y. z. to 
 0. P.] ; then K. L. [assigns his mortgage to 0. P., who] under his 
 power of sale conveys x. y. z. to E. F. ; after that as in (g) (K. L.'s 
 [or 0. P.'s] title not having merged): Minter v. Carr ([1894] 3 Ch. 
 498). 
 
 It will he seen that the quaere in (/;) has heen set at rest by the 
 subsequent decisions. In Barter v. Colman Fry, J., said : " My decision 
 rests on this — the purchaser of an equity of redemption from the 
 mortgagor takes it subject to all the equities which affected it in the 
 hands of the assignor at the time of the assignment, but not to any 
 equities subsequently arising. The equity to consolidate, arising from 
 a subsequent union in the same person of that mortgage with another, 
 is not an equity which was then subsisting, and therefore it is not 
 one of the equities subject to which the equity of redemption was 
 purchased." 
 
 Consolidation has been held not to apply unless default has been 
 
 made on all the securities in respect of which consolidation is claimed : 
 
 Cummins v. Fletcher (14 Ch. D. 699) ; nor to a bill of sale : Chesworth 
 
 v. Bunt (5 C. P. D. 266) ; nor to a case where one of the mortgage 
 
 securities (a leasehold) ceased to exist : In re Raggett (16 Ch.D. 117). 
 
 The doctrine of election has no place with regard to it : Griffith v. 
 
 Pound (45 Ch. D. 553) ; and see Cracknall v. Janson (11 Ch. D. 1). 
 
 Subject to the above, the doctrine of consolidation of mortgages 
 
 applies to legal or equitable, to real and personal property, and in an 
 
 action whether for foreclosure or redemption : Coote on Mortgages, 
 
 5th ed. p. 902 et seq. 
 
 Conveyanc- Sect. 17 of the Conveyancing and Law of Property Act, 1881, pro- 
 
 ing Act, vides that (1) a mortgagor seeking to redeem any one mortgage, shall, 
 
 1881 g 17 D ° ' ' 
 
 ' ' 'by virtue of this Act, be entitled to do so, without paying any money 
 
 clue under any separate mortgage made by him, or by any person 
 
 through whom he claims, on property other than that comprised iu 
 
 the mortgage which he seeks to redeem. (2) This section applies only 
 
 if and as far as a contrary intention is not expressed in the mortgage 
 
 deeds or one of them. And (3) if the deeds are or one of them is 
 
 dated alter this Act. The effect of this section is that in the absence 
 
 of a contract to exclude the Act there will be no consolidation. The 
 
 usual practice is to insert a clause excluding the application of this 
 
 section of the Conveyancing Act : Bird v. Wenn (33 Ch. D. 215, 217). 
 
 Kay, J., held in Andrews v. City Permanent Benefit Building 
 
MORTGAGE OF PERSONALTY. 219 
 
 Society (see above) that an express contract for consolidation will apply 
 to cases where an implied equity will not apply ; but the facts of the 
 case came within (c), a fact which the learned judge omitted to per- 
 ceive. For the effect of an express contract to consolidate by a 
 principal debtor in discharging a surety from his debt and mortgage, 
 see Bolton v. Buckerikam ([1891) 1 Q. B. 278) ; Bolton v. Salmon 
 ([1891] 2 Ch. 48). 
 
 Mortgage of Personalty. 
 
 Ex parte ODELL : In re WALDEN. 
 (10 Ch. D. 76.) 
 
 The Court regards the substance of a transaction, Principle. 
 and if though in form a sale it is in reality a mortgage, 
 it will be treated as a mortgage. 
 
 Cochrane advanced Walden £150 in order (inter alia) Summary 
 
 . n of facts. 
 
 to pay out an execution, and upon the same day two 
 documents were executed, one an inventory of the 
 furniture in Walden's house, at the foot of which was 
 a receipt for £150 for the " absolute " sale to Cochrane 
 " of the above-mentioned articles ; " the other was an 
 agreement in writing, by which Cochrane let Walden 
 the same furniture for two months for £170, to be 
 repaid on 18th of September, or such other time as might 
 be agreed upon; and power was given to Cochrane in 
 case the £170 was not repaid and in other certain 
 specified events to determine the agreement and take 
 possession of the goods, sell them, and pay the surplus 
 (if any) to Walden, who on the other hand was to make 
 good any deficiency. On payment of the £170, together 
 with costs, charges, and expenses payable under the 
 agreement, the goods were to become the property of 
 
220 
 
 MORTGAGE OF PERSONALTY. 
 
 Bills of 
 sale are 
 mortgages 
 of chattels. 
 
 More docu- 
 ments than 
 one. 
 
 Severance 
 of pro- 
 visions in 
 one docu- 
 ment. 
 
 Walden. Held, by the Court of Appeal, that the 
 two documents constituted a mortgage and required 
 registration as a bill of sale. 
 
 Bills of sale are now defined by the Bills of Sale Act, 1878 (41 & 42 
 Vict. c. 31), s. 4; but this section has not extended the scope of 
 17 & 18 Vict. c. 36, s. 1, under which Ex parte Odell was decided. 
 The Act of 1878 specifies certain documents, such as " inventories 
 of goods with receipt thereto attached," and '* receipts for purchase 
 moneys ; " but in order that these may be within the Act of 1878, ' 
 they must be intended to take effect as assurances or transfers of 
 chattels : see Lord Hersohell's judgment in Charlestuorth v. Mills 
 ([1892] A. C. 231, 241). The Act of 1878 includes agreements " by 
 which a right in equity to any personal chattels or to any charge or 
 security thereon," other than creditors' trust deeds, marriage settle- 
 ments, etc. ; and the Act of 1882 extends these exceptions to 
 debentures ; but equitable mortgages of chattels were already within 
 the scope of the old Act. 
 
 The Act of 1882 (45 & 46 Vict. c. 43) avoids unregistered and 
 informal " bills of sale " within the meaning of the Act of 1878, not 
 only as against trustees in bankruptcy, execution creditors, and 
 sheriffs' officers, but as against every one, provided that they are 
 given as security for money. Otherwise it adheres to the definition 
 contained in the Act of 1878. The question, then, which we propose 
 to consider may be regarded as identical under whichever of these 
 three Acts it arose, and it may be stated thus : What are assurances, 
 transfers, or equitable assignments of chattels by way of security 
 for debt ? — briefly, what are mortgages of chattels ? 
 
 The leading case, following Cochrane v. Matthews (cited 10 Ch. ~D., 
 p. 80, n.), assumed that it was immaterial whether the writing in question 
 was contained in one or more documents. " What we have got here," 
 said the Court of Appeal in Ex parte Odell (p. 85), "is the evidence 
 of two contemporaneous documents, both executed as part and parcel 
 of the same transaction, as much contemporaneous as it is possible 
 for two documents to be, and those two documents together constitute 
 the real transaction between the parties. . . . The form adopted, a sale 
 and a demise, seems to be wholly immaterial. . . . You cannot defeat 
 the operation of the Rills of Sale Act by puttiDg part of the trans- 
 action in one document and the other part in another document. 
 Both documents should have been registered as a bill of sale. 
 Together they constitute a bill of sale with a defeazance." 
 
 Conversely an agreement may be severed so as to be void as 
 to one part of it under the Rills of Sale Acts, 1878 and 1882, 
 and valid as to another part : In re Isaacson, Ex parte Mason 
 ([1895] 1 Q. B. 333), following dicta in Cochrane v. Entwhistle (25 
 Q. B. D. 116) ; but an assignment of fixed along with moveable 
 
MORTGAGE OF PERSONALTY. 
 
 221 
 
 machinery is not so severable : Small v. National Provincial Bank 
 of England ([1894] 1 Ch. 686), cited in In re Brooke ([1894] 2 Ch. 
 600), which follows In re Yates, Batchelor v. Yates (38 Ch. D. 112). 
 
 In Ex parte Odell there was "no evidence of any agreement or 
 arrangement between the parties apart from the documents upon 
 which the question arises : " per Thesiger, L.J. 
 
 And the same observation applies to the following cases : — 
 
 (a) An agreement for sale approved by the Court, reserving a vendor's 
 lien on chattels, is a bill of sale : Coburn v. Collins (35 Ch. D. 373). 
 
 (5) All assignments for creditors are specially excepted : Hadley v. 
 Beedom ([1895] 1 Q. B. 646). So are marriage articles and the like : 
 Wenman v. Lyon & Co. ([1891] 2 Q. B. 192). So are the debentures 
 of any incorporated joint stock company : In re Standard Manufac- 
 turing Co. ([1891] 1 Cb. 627); but not of a provident and industrial 
 society : Great Northern Railway Co. v. Coal Co-operative Society 
 ([1896] 1 Ch. 187). 
 
 (c) A hire and purchase agreement by itself is good, although it 
 contains (inter alia) a power for the lender to sell the chattels, and 
 after retaining the instalments still due to pay over the balance to 
 the lessee : McEntire v. Crossley ([1895] A. C. 457]. Here, however, 
 there was also a power to resume possession of the chattels. 
 
 But in the following cases conclusions from extrinsic evidence were 
 the most important factor in the ratio decidendi. The ordinary 
 rule as to evidence, which is that where an agreement is reduced to 
 writing parol evidence of its terms is inadmissible, applies : Ex parte 
 Parsons, In re Townsend (16 Q. B. D. 532, 542) ; Morris v. Beloobel- 
 Flipo ([1892] 2 Ch. 352, 355), but with a qualification which was 
 thus expressed by Kay, L.J., in Madell v. Thomas ([1891] 1 Q. B. 
 237) : " Here we have to deal with a particular Act of Parliament, 
 the object of which could not be carried out unless it could be shown 
 by external evidence that the document in question was really only 
 given as a security for money, and which must therefore have 
 intended that this might be done." Compare Woodgate v. Godfrey 
 (5 Bxch. D. 24, 26), explaining Ex parte Cooper (10 Ch. D. 313). 
 
 The following are bills of sale : — 
 
 (d) A. B. delivers chattels to C. D., and hires them from C. D. on a 
 hire-purchase agreement. The intention, evidenced by letters, etc., 
 was to create security for a loan, although formally the transaction 
 was a sale followed by hiring : In re Watson, Ex parte Official 
 Receiver (25 Q. B. D. 27), reviewing In re Yarrow (61 L. T. 642), 
 Redhead v. Westwood (59 L. T. 293) ; Gapp v. Bond (19 Q. B. D. 
 200) ; Ex parte Odell, etc. 
 
 (e) A. B. assigns chattels absolutely to C. D. for a debt due, plus a 
 further advance (total £200). On the same day he hires the chattels 
 from C. D. on a hire-purchase agreement, the payments being spread 
 over two years, and amounting to £200. A jury held on evidence 
 produced aliunde that the parties really meant to effect a loan: 
 Madell v. Thomas ([1891] 1 Q. B. 230). 
 
 Cases on 
 internal 
 evidence. 
 
 External 
 evidence. 
 
 Cases on 
 external 
 evidence. 
 
222 MORTGAGE OF PERSONALTY.' 
 
 (/) A. B. agrees that C. ~D. shall buy in his chattels at a sale on a 
 friendly distress, and requests in writing that they shall be so sold. 
 At this date there was, according to external evidence, an under- 
 standing amounting to a trust (p. 646) that C. D. should let, and next 
 day he let the goods to 0. D. on a hire-purchase agreement : Beckett v. 
 Tower Assets Co. ([1891] 1 Q. B. 638). 
 
 (<?) A company being advised of its inability to borrow, sold rolling 
 stock and hived it on a hire-purchase agreement. Kay, J., held as a 
 conclusion, "not of law but of common sense," that both parties 
 intended a loan on the security of their stock : Yorkshire Railway 
 Waggon Co. v. Maclure (19 Ch. D. 478). 
 
 The following are not bills of sale : — 
 
 (h) A company (A. B.) is entitled to waggons contingently on paying 
 instalments under a hire-purchase agreement to B. P. C. D., at A. B.'s 
 request, pays the remaining instalments to E. F., and. by writing 
 A. B. assigns the chattels to C. D., and C. D. lets them to A. B. on a 
 hire-purchase agreement. There is evidence that these transactions 
 form one transaction, that A. B. desired a loan in order (inter alia) 
 to pay the instalments to E. P., and had no borrowing powers. These 
 writings did not effect a loan by 0. D. to A. B. on the security of 
 their waggons, and were not a bill of sale : Manchester, Sheffield, etc., 
 Railway Co. v. North Central Waggon Co. (13 App. Cas. 554). 
 Semble, if A. B. had been absolutely entitled to the waggons, and E. P. 
 had not existed, the result would have been the same (ib. p. 569). 
 
 (/) A. B.'s chattels are sold under aji.fa. toC. D., and an inventory 
 and receipt are given to C. D., and C. D. allows A. B. to remain in 
 possession and paint pictures for him : Marsden v. Meadows (7 Q. B. 
 
 D. 80). 
 
 In all the above cases where the document was held to be a 
 bill of sale, property passed by means of it. Bowen, L.J., put the 
 matter thus : " There was no transaction outside the documents 
 which affected in law or in equity the rights of the parties, or 
 amounted to an assurance " (S. C. 35 Ch. D. 211). 
 Pledges. I n tne following cases property or possession changed independently 
 
 of any document, although the document might be necessary evidence 
 to show the conditions subject to which property or possession had 
 changed. 
 
 (I) A. B. deposits goods by way of security for debt, and accompanies 
 the deposit by an agreement with power of sale for the purpose 
 of repaying the money lent. This is a pledge, and the document 
 is only meant as evidence of the pledge, and does not transfer the 
 goods, and is therefore, though not registered, etc., as a bill of sale, 
 valid : Ex parte Hubbard (17 Q. B. D. 690). Compare Newlove v. 
 Shrewsbury (21 Q. B. D. 41). 
 
 (m) A. B.'s goods are seized under 2i.fi. fa. by the sheriff, who puts 
 in E. P. C. D., at A. B.'s request, pays out the sheriff, and requests 
 
 E. P. to continue in possession as agent for C. D. A. B. by writing 
 empowers C. D. to sell the property, pay himself, and hand over the 
 
MORTGAGE OF PERSONALTY. 
 
 223 
 
 balance to A. B. This was no bill of sale, as the property did not 
 change hands by virtue of the writing : Oharlesworth v. Mills ([1892] 
 A. C. 231). What constitutes change of possession between husband 
 arid wife was decided in Ramsay v. Margrett ([1894] 2 Q. B. 18). 
 
 (n) A. B. applies to C. T>. for a loan and obtains it, and signs and 
 hands to a warehouseman an order to deliver A. B.'s goods to C. D. 
 This is a pledge, and the document, though unregistered, is good : 
 Grigg v. National Guardian Assurance Go. ([1891] 3 Ch. 206). 
 
 (o) A. B. agrees in writing that C. D., who is his agent, should retain 
 any goods of A. B. as security for advances. This is a pledge, and 
 the document is good : Morris v. Delobbel-Flipo ([1892] 2 Ch. 352). 
 
 It is obvious that all these cases are a mere revival under another 
 form and in regard to other issues of the cases collected under White 
 and Tudor's Leading Case, Howard v. Harris, 6th ed. ii. 1178. 
 
 The result of those authorities is summed up in Coote on Mortgages, 
 5th ed. vol. i. p. 22, as follows : — " The rule of law is that, prima 
 facie, an absolute conveyance containing nothing to show the relation 
 of debtor and creditor does not cease to be an absolute conveyance 
 and become a mortgage merely because the vendor stipulates that 
 he shall have a right to re-purchase. In every case the question 
 is, what upon a fair construction, is the meaning of the instruments, 
 and the absolute conveyance will be turned into a mortgage if the 
 real intention was that the estate should be held as a security for 
 the money." 
 
 This principle of construction — which is usually referred to as " once 
 a mortgage always a mortgage '' — -received a recent illustration in In 
 re Bell, Jeffery v. Sayles ([1896] 1 Ch. 1). It had been decided by 
 Tancred v. Delagoa Bay Go. (23 Q. B. D. 239) that the mortgage of 
 debts was an absolute assignment of them, so as to enable the 
 mortgagee to sue for them under sect. 25, sub-sect. 6, of the Judicature 
 Act, 1873. It was suggested in In re Bell that the logical result of 
 this decision was that the mortgagee of reversionary personalty was 
 entitled to obtain the entire reversion from the trustees and not merely 
 the amount of his debt. But the Court of Appeal rejected this new 
 encroachment upon the old equity. 
 
 It has been held in these cases that external evidence could be 
 adduced to show that an apparently innocent agreement was in reality 
 a contravention of the Acts. Similarly in those cases " where it was 
 sought to show that an assignment which purported to he absolute 
 was really intended to be a mortgage external evidence has been 
 admitted for that purpose, but on the ground that the Court had 
 power to rectify the instrument, and that it would be afraid to insist 
 on the absolute form of the instrument if it were only intended to be 
 a security for money : " per Kay, L.J. ([1891] 1 Q. B. 237). 
 
 A further parallel and contrast is afforded by the case of Edwards 
 v. Marcus ([1894] 1 Q. B. 587). In that case A. and B. assigned 
 by bill of sale chattels to secure a debt with (simple) interest. On 
 the same day B. assigned reversionary personalty to secure what was 
 
 Parallel 
 between 
 these cases 
 and the 
 older cases 
 on " once 
 a mort- 
 gage 
 
 mortgage,' 
 
 Evidence. 
 
 Clogging 
 redemp- 
 tion. 
 
224 MORTGAGE OF PERSONALTY. 
 
 held to be the same sum with compound interest. It was held that 
 the bill of sale did not state the condition of defeasance truly, and 
 therefore was void. Had the bill of sale been a valid mortgage, the 
 second and not the first document would have been bad. It would 
 have been said " This is one transaction, and the equity of redemption 
 on payment of simple interest is thereby clogged : it is attempted to 
 secure a collateral advantage. Clogs and collateral advantages are 
 void in equity; once a mortgage always a mortgage." A recent 
 illustration of this principle was afforded by Salt v. Marquis of 
 Northampton ([1892] App. Cas. p. 1). In this case the trustees of 
 an insurance company had advanced to Earl Compton the sum of 
 £10,000 on the security of a charge on certain real estates to which 
 he was entitled in the event of his surviving his father, who was 
 the plaintiff in the present action. In accordance with the contract 
 between the parties the insurance company insured the life of Earl 
 Oompton against the life of his father in their own office for £34,500. 
 Nothing was ever paid by Earl Compton in respect of interest, 
 premium, or principal. All premiums were provided by the office 
 itself, and the reversion was charged with principal,' premiums, and 
 compound interest on the principal and premiums. A supplementary 
 agreement was entered into shortly after the original contract, which 
 stipulated that in the event of Earl Compton predeceasing his father 
 without having paid all principal money, interest, and costs due to the 
 trustees, the proceeds of the policy should belong to the society abso- 
 lutely. Earl Compton died in the lifetime of his father, intestate. 
 The father took out administration to his estate, and claimed the 
 right to redeem the £34,500. The House of Lords decided that he 
 was so entitled, as the subsequent agreement was an agreement limit- 
 ing the mortgagor's right of redemption to his lifetime, and therefore 
 invalid. Rights of redemption were created by equity without any 
 help from express contract; and the maxim that equity will not allow 
 these rights to be destroyed or impaired by express contract was 
 reasserted, and has consequently survived Bowen, L. J.'s, attack on it 
 (S. C. 45 Ch. D. 215) and Lord Bram well's yet more deadly defence of 
 it (S.C.). Compare James v. Kerr (40 Ch. D. 449) ; contrast General 
 Credit and Discount Co. v. Glegg (22 Ch. D. 549). 
 
MERGER OF CHARGES. 225 
 
 Merger of Charges. 
 
 ADAMS v. ANGELL. 
 
 (5 Ch. D. 634.) 
 
 The question whether a charge which is paid off is Principle. 
 merged depends on the intention of the payer whether 
 expressed or implied from the circumstances attending 
 the transaction ; and the Court will presume that it is 
 his intention to keep the charge alive if it is obviously 
 for his benefit. 
 
 Angell mortgaged property first to Adams and then Summary 
 to Newsom. Adams obtained judgment for foreclosure 
 against Angell and KTewsom, and subsequently entered 
 into an arrangement with Angell's trustee in bankruptcy 
 by which, in consideration of £1380 retained by Adams 
 in full satisfaction of his debt, and of £20 paid to the 
 trustee, the mortgaged property was assigned to Adams, 
 "subject to the aforesaid claim" of Newsom. It ap- 
 peared that the amount due to Adams was the full value 
 of the property. The Court of Appeal decided that the 
 whole surrounding circumstances showed an intention to 
 keep Adam's mortgage alive as against Newsom, and 
 that therefore it did not merge. 
 
 The general principles on which the Courts of Equity have pro- Equitable 
 ceeded with regard to the question whether charges which have been doctrine 
 paid off are to be considered as preserved or extinguished, are fully ™" t 
 stated in the judgment in the leading case. 
 
 " In a Court of Equity,'' said Jessel, M.R., " it has always been held 
 that the mere fact of a charge having been paid off, does not decide 
 the question whether it is extinguished." 
 
 He then pointed out that two classes of cases required to be con- 
 sidered : (1) where the charge is paid off by a person having a limited 
 interest, as it is called— e.g. an interest less than an estate of inheritance, 
 
 Q 
 
226 
 
 MERGER OF CHARGES. 
 
 in the case 
 of limited 
 owners : 
 
 in the 
 case of 
 owners in 
 fee or in 
 tail. 
 
 In re 
 Pride. 
 
 of which the common case is a tenant for life ; (2) where the charge 
 is paid off by a tenant in tail or in fee. With regard to the first 
 class of cases, the rule is, that if a charge is paid off by the limited 
 owner, without any expression of his intention, he retains the benefit 
 of it against the inheritance. "Although he has not declared his 
 intention of keeping it alive, it is presumed that his intention was to 
 keep it alive, because it is manifestly for his benefit." The same rule 
 applies on payment by a limited owner of estate duty under the 
 Finance Act, 1894, s. 9 (6). This intention is not rebutted by the 
 mere fact that the relationship of parent and child subsists between 
 tenant for life and remainderman : In re Harvey, Harvey v. Hobday 
 ([1896] 1 Ch. 137). 
 
 " On the other hand, when the owner of an estate in fee or in tail 
 pays off a charge, the presumption is the other way ; but in either 
 case the person paying off the charge can, by expressly declaring his 
 intention, either keep it alive or destroy it. If there is no reason for 
 keeping it alive then, especially in the case of an owner in fee, in the 
 absence of any declaration of his intention, equity will destroy it ; but 
 if there is any reason for keeping it alive, such as the existence of 
 another incumbrance, equity will not destroy it." A charge may be 
 expressly preserved by being assigned to a trustee for the purchaser, 
 or by a declaration that the charge shall be treated as remaining on 
 foot for the purpose of protecting the purchaser against mesne incum- 
 brances. The intention, if expressed, governs the case. If no inten- 
 tion is expressed or implied, as in the leading case, then, according 
 to Toulmin v. Steere (3 Mer. 210), the incumbrance which is paid off 
 is merged, and the subsequent incumbrancers let in. 
 
 With regard to the second branch of this rule, viz. that which 
 applies when a charge is paid off by the owners of an estate in fee or 
 in tail, Stirling, J., in the case of In re Pride, Sliackell v. Colnett 
 ([1891] 2 Ch. 135), stated the law as follows :— 
 
 " Even in the case of a tenant in tail, if the estate cannot be barred, 
 the rule that the charge is not presumed to be kept alive does not 
 apply. That was decided by Lord Thurlow in Countess of Shrewsbury 
 v. Earl of Shrewsbury (1 Ves. 227). In the case also of an owner in 
 fee paying off a charge there is one case in which an intention to 
 destroy the charge will not be presumed, viz. where the estate is 
 subject to an executory devise : Drinhwater v. Combe (2 S. & S. 340). 
 The presumption in either of these cases is that the intention is to 
 keep the charge alive, because to keep it alive is for the benefit of the 
 person who pays it off." In this case hereditaments, which were 
 subject to a mortgage for £2000, were devised by a testator to his six 
 children, two of whom were James Pride and Susan Spring. James 
 Pride afterwards acquired three of the other shares, and lastly Susan 
 Spring conveyed her share to him. Three years after Susan Spring 
 commenced a suit to set aside her conveyance. While the suit was 
 pending, a deed was executed, which was on the face of it a reconvey- 
 ance to James Pride (in consideration of his paying- off the £2000) of 
 
MERGER OF CHARGES. 227 
 
 five-sixths of the mortgaged property free from the mortgage, and a 
 transfer of the mortgage so far as it affected the sixth part which he 
 had not attempted to purchase. A decree was afterwards obtained 
 setting aside the conveyance of Susan Spring, and the question arose 
 whether the mortgage for £2000 was to be considered as kept alive as 
 against that share. Stirling, J., after reviewing the facts of the case 
 and citing the statement of the law given by Sir George Jessel in the 
 leading case, proceeded as follows : — " The question here is, under 
 which branch of the rule laid down by Sir George Jessel the case falls 
 — whether under that which applies when a tenant for life pays off 
 a charge, or under that which is applicable when the owner in fee or 
 a tenant in tail pays it off. Here the owner of five-sixth shares of the 
 estate was paying off the charge pending a suit to set aside the sale of 
 one-sixth. What is the presumption in such a case? It must be 
 that the person paying off the charge intended to keep it alive as 
 regards that one-sixth, because that is for his benefit ; he cannot be 
 presumed to have meant to benefit the person who was seeking 
 to impeach his title. In my opinion, I ought to follow what is laid 
 down in Countess of Shrewsbury v. Earl of Shrewsbury and Drink- 
 water v. Combe, and apply the rule which is applicable when a tenant 
 for life pays off a charge on the inheritance without expressly declaring 
 bis intention. Therefore, as to the mortgage for £2000 the intention 
 to keep it alive must he presumed." 
 
 The principle of the leading case came before the House of Lords in Thome v. 
 Thome v. Cann ([1895] A. C. 11). Piller mortgaged freeholds to Cam. 
 Eendell, who transferred his mortgage to Miss Arnold. Piller then 
 mortgaged the premises to Thorne. On Piller becoming bankrupt, 
 Searle purchased the equity of redemption from the trustee in bank- 
 ruptcy. Miss Arnold wishing to be paid off her mortgage, Searle 
 obtained the money from the bank, paid her, and took a transfer of 
 the mortgage debt and securities, and deposited the deeds with the 
 bank. Shortly afterwards Searle found a client, Cann, who was willing 
 to advance the money ; and he paid off the bank, executing a transfer 
 of the mortgage debt and securities to Cann, who four years later sold 
 the property under his power of sale to Thorne. Thorne objected to 
 the title on the ground that Arnold's mortgage was extinguished by 
 the transfer to Searle, and that consequently Cann had no power of 
 sale ; and he also claimed priority for his own mortgage. The House 
 decided (1) partly from the form of the instrument, but (2) mainly 
 from the circumstances of the case, that it was the intention of the 
 parties to keep the security alive. (1) "I cannot myself conceive," 
 said Herschell, L.C., "when the owner of the equity of redemption 
 paid Arnold, what was the object of his taking to himself the assign- 
 ment of the mortgage debt and all benefits and rights in respect of it, 
 if it was not to keep alive that security." But too much reliance 
 must not be placed on the first ground of decision ; otherwise it is 
 difficult to see where merger could occur. (2) " Nothing, I think," 
 said Lord Macnaghten, "is better settled than this, that when the 
 
228 
 
 MERGER OF CHARGES. 
 
 Liquida- 
 tion Estates 
 Co. v. 
 Wil- 
 loughby. 
 
 Alleged 
 extensions 
 of this 
 doctrine : 
 
 to legal 
 estates ; 
 
 to debts ; 
 
 to leases. 
 
 owner of an estate pays charges on the estate which he is not 
 personally liable to pay, the question whether those charges are to be 
 considered as extinguished or as kept alive for his benefit, is simply 
 one of intention. You may find the intention in the deed or in the 
 circumstances attending the transaction, or you may presume an 
 intention from considering whether it is or is not for his benefit that 
 the charge should be kept on foot." 
 
 It will be seen that Lord Macnaghten's statement is hardly con- 
 sistent with Toulmin v. Steere (3 Mer. 210) ; but Toulmin v. Steere 
 has been questioned in many cases, and is not to be extended : 
 Stevens v. Mid Hants Railway Co. (L. E. 8 Ch. 1064, 1069); Adams 
 v. Angell; In re Howards Estate (29 L. R. Ir. 266); Thome v. Cann 
 ([1895] A. C. 11, 16). 
 
 Toulmin v. Steere was treated in Liquidation Estates Co. v. Wil- 
 loughby ([1896] 1 Ch. 726), as no longer binding, where Lindley, L.J., 
 summed up the result of Thome v. Cann as follows : — " Having regard 
 to this decision it is perhaps now safe to go a little further, and to say 
 that where a purchaser of a property pays off a charge on it without 
 showing an intention to keep it alive, still if its continuance as an 
 existing charge is beneficial to him it will be treated in equity as 
 subsisting, unless an intention to the contrary can be inferred from 
 the terms of the purchase deed or from other legitimate evidence." 
 But the majority of the Court held that the only interest which the 
 purchaser had in keeping alive the charge was in this case of too 
 speculative and doubtful a nature to bring it within the authority of 
 Thome v. Cann ; and further, the evidence from the terms of the deed 
 (which was mainly negative evidence) supported this conclusion. 
 
 The above-mentioned equitable doctrine of non-merger is, since the 
 Judicature Act, 1873, s. 25 (4), binding upon every division of the 
 Supreme Court. It is questionable, however, how far the Judicature 
 Act has extended its application. Kekewich, J., held, in Snow v. 
 Boycott ([1892] 3 Ch. 110), that the same doctrine would apply to a 
 conveyance by C. D. of her life-estate to A. B. (who had a larger 
 estate) in consideration of a rent-charge, and that the rent-charge 
 continued during C. D.'s life after A. B.'s estate determined. And he 
 based his decision on this sub-section. This decision is very un- 
 likely to be followed. Again, it is a rule that a specialty debt is 
 merged in a judgment debt, so that after judgment the rate of interest 
 will be 4 per cent. This rule was applied in Ex parte Fewings, In re 
 Sneyd (25 Ch. D. 338); and Popple v. Sylvester (22 Ch. D. 98), where 
 the contrary was held, was distinguished on the ground that there the 
 language of the deed expressly negatived the presumption of merger. 
 But if Popple v. Silvester is right, and an express intention can 
 prevent merger of debts, it is (to say the least) curious that the doc- 
 trine of " implied intention " has never been applied to cases of this 
 kind. The doctrine of equitable non-merger has not been applied to 
 the merger of leases in the reversion, where a quasi-equitable common 
 law doctrine prevails. " Having regard to the parties to the surrender 
 
LOCKE KINO'S AOTS. 229 
 
 the estate is absolutely drowned. But having regard to strangers who 
 were not parties or privies thereunto, lest by a voluntary surrender 
 they may receive prejudice touching any right or interest they had 
 before the surrender, the estate surrendered hath in consideration of 
 law a continuance : " Co. Littl. 338 (6) ; Saint v. Pilley (L. R. 10 
 Exch. 137). This legal principle as to the surrender of leases runs in 
 a separate groove. 
 
 Subject to these principles specially applicable to different circum- General 
 stances, the general law of merger is the same in every species of doctrine of 
 property, and was thus stated by Lindley, L.J., in In re Radcliffe, ° ' 
 Radcliffe v. Sewes ([1892] 1 Ch. 227) : "In order that there may be 
 merger (a), the two estates which are supposed to coalesce must be 
 vested in the same person (1), at the same time (2), and in the same 
 right (3) ; " otherwise there is no merger (V). This law applies to life 
 interests and reversions : In re Badcliffe (3) (a) (b) ; mortgages and 
 mortgaged estates : Wilkes v. Collin (8 Eq_. 338) (1) (6); leaseholds 
 and reversions : Belaney v. Belaney (L. R. 2 Ch. 138) (1) (b); Chambers 
 v. Kingham (10 Ch. D. 743) (3) (b); Russell v. Watts (10 App. Cas. 
 590) (3) (b) ; Dynevor v. Tennant (13 App. Cas. 279) (1) (2) (3) (a) ; 
 Hyde v. Warden (3 Exch. Div. 72) (3) (V) (interesse termini and 
 tenancy) ; and debts of inferior and superior degree : Wegg Prosser v. 
 Evans ([1895] 1 Q. B. 108) (3) (b) (judgment ou cheque and contract 
 debt) ; In re European Central Railway Co. (4 Ch. D. 33) ; Ex parte 
 Fewings (ubi supra) (1) (2) (3) (a), etc. 
 
 See Tudor's Leading Cases on Real Property, Forbes v. Moffat. 
 
 Locke King's Acts. 
 
 In re NEWMARCH, NEWMARCH v. STORR. 
 
 (9 Ch. D. 12.) 
 
 A charge of " debts " or "just debts " on part of a Principle.; 
 testator's real estate in aid of his personal estate and 
 in exoneration of his other real estate, is not a sufficient 
 expression of intention within the meaning of Locke 
 King's Acts to exonerate the mortgaged estates from 
 the payment of the mortgage debt. 
 
 Newmarch died in 1875, having mortgaged the whole Summary 
 
 or fflpts 
 
 of his real estate except seven cottages for £1000. By 
 
230 LOOKS KING'S ACTS. 
 
 his will, dated 1875, he devised his real estate in the 
 following manner : — 
 
 1. A close called "Bean Butts" and the seven cot- 
 tages to trustees for his wife and children. 
 
 2. A house, garden, and other hereditaments to his 
 daughter and her children. 
 
 3. His mill and the residue of his real estate to his 
 sons, " charged nevertheless in aid of my personal estate 
 and in exoneration of my other real estate with the pay- 
 ment of my just debts," and his residuary personal estate 
 to his trustees upon trust to sell and divide the net pro- 
 ceeds after payment of his debts between his sons. The 
 Court of Appeal decided that all the real estates subject 
 to the mortgage must contribute rateably (i.e. in propor- 
 tion to their respective values) towards the payment of 
 the £1000 mortgage debt. 
 
 The law with regard to the mode in which mortgage debts are to 
 be borne has been completely changed by three Acts : 
 Locke 1. Locke King's Act (17 & 18 Vict. c. 113), or as it is now called 
 
 King's Act. " j% e ft ea l Estate Charges Act, 1854," applies only where the person 
 dies on or after the 1st of January, 1855, and to wills, deeds, and 
 documents made after that date. 
 Locke 2. 30 & 31 Vict. c. 69, applies " in the construction of the will of 
 
 King's lAct an y person who may die after the 31st of December, 1867." Other 
 Amend- d ee ds and documents are not mentioned. 
 
 3. 40 & 41 Vict. c. 34, enacts that the two first Acts shall have an 
 extended meaning in the case of a testator or intestate dying after the 
 31st of December, 1877. 
 Former In, cases not falling within the operation of any of these statutes the 
 
 law. heir-at-law or devisee was entitled as a general rule to have the land 
 
 exonerated from the mortgage debt out of the general personal estate. 
 There were, however, certain exceptional cases in which under the 
 old law the mortgaged land had to bear its burden. These cases, 
 which will be found fully discussed in Jarman on Wills, 5th ed. p. 
 1443 et sea., and Theobald onWills, 4th ed. pp. 135 et seq., establish that 
 the land is primarily liable (1) where there are express words or a 
 plain intention of the testator that the devisee or legatee should take 
 subject to the mortgage debt. In order to effect this, there must be a 
 sufficient indication of intention, not only to charge the real estate, 
 but also to exonerate the personalty ; and the words " subject to the 
 
LOCKE KING'S ACTS. 231 
 
 mortgage or incumbrance thereupon" are treated as merely descriptive 
 of the condition of the property ; (2) where the debt was not con- 
 tracted by the person who died last seised or entitled, but the land 
 came to him cum onere unless he manifest an intention to adopt it. 
 
 Locke King's Act (17 & 18 Vict. c. 113) provides that where a 17 & 18 
 person is entitled to land, " which shall at the time of his death be ^ ict> c- 
 charged with the payment of any sum or sums of money by way of 
 mortgage, and such person shall not by his will or deed or other 
 document have signified any contrary or other intention, the heir or 
 devisee to whom such land or hereditaments shall descend or be 
 devised shall not be entitled to have the mortgaged 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 be between the 
 different persons claiming through or under the deceased person be 
 primarily liable to the payment of all mortgaged debts with which the 
 same shall be charged, every part thereof according to its value bear- 
 ing a proportionate part of the mortgage debts charged on the whole 
 thereof." Then a proviso follows which saves the real and personal 
 remedies of mortgagees. 
 
 The utility of this Act was impaired by the decision that a direction 30 & 31 
 to pay debts out of personalty was an intention to the contrary, Eno lct " Cl 69- 
 v. Tathan (4 Giff. 181 ; 3 D. J. & S. 443) ; Moore v. Moore (1 D. J. 
 & S. 602), and that vendor's lien for unpaid purchase-money was not 
 included in it. Accordingly it is provided by The Real Estates 
 Charges Act, 1867 (30 & 31 Vict. c. 69), that (1) " 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 inten- 
 tion contrary to or other than the rule established by the said Act" 
 (of 1854), "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. 
 
 (2) In the construction of the said Act and of this Act the word 
 mortgage shall be deemed to extend to any lien for unpaid purchase- 
 money upon any lands or hereditaments purchased by a testator." 
 
 "With regard to this latter Act, Jessel, M.R., in the leading case 
 observed, " It was a construing and explaining Act ; it did not profess 
 to amend the former Act, but to set aside the interpretation that had 
 been put upon it ; it was, in fact, a polite way of overruling the decision 
 of the Court of Chancery." 
 
 And then it was found that these two Acts had forgotten 40 & 41 
 " leaseholds : '' Solomon v. Solomon (33 L. J. Ch. 473) ; and the Vict - c - 34 - 
 estates of intestates : Nelson v. Page (7 Eq. 25) ; Harding v. 
 Harding (13 Eq. 493). These flaws were remedied by the Real 
 Estate Charges Act, 1877 (40 & 41 Vict. c. 34), which is itself not a 
 model of perfect draughtmanship : thus it only affects a devisee, 
 legatee, and heir, and not a next of kin, and it only contemplates the 
 expression of an intention by a testator, not (by deed) by an intestate. 
 
232 
 
 LOCKE KING'S ACTS. 
 
 The lead- 
 ing case. 
 
 Vendor's 
 lien. 
 
 Moreover, it required a decision of the Court to include leaseholds 
 under the language of this Act : In re Kershaw, Brake v. Kershaw 
 (37 Ch. D. 674). And another decision of the Court has excluded 
 estates tail from the scope of these three Acts : In re Anthony (2) 
 ([1893] 3 Ch. 498). 
 
 Three points were considered in the leading case — 
 
 i. Do the Acts apply at all where there is a question of contribu- 
 tion between devisees of different portions of an estate subject to one 
 mortgage debt ? 
 
 2. Supposing this question to be answered in the affirmative, what 
 is a sufficient declaration of contrary intention in a will to satisfy the 
 Acts? 
 
 3. Whether the will in question contains a sufficient declaration of 
 a contrary intention. 
 
 With regard to the first point it was held that the words " any 
 other real estate of such person " mean " other real estate not descended 
 or devised to such heir or devisee," not " other real estate not com- 
 prised in the mortgage," and that consequently the words amounted to 
 an express enactment that unless the testator has signified a contrary 
 or other intention, the different parts of the charged estate shall in the 
 hands of the devisees bear proportionate parts of the mortgage debt 
 according to their value. Similarly in Trestrail v. Mason (7 Ch. D. 
 655) and Leonino v. Leonino (10 Ch. D. 460) the charges were appor- 
 tioned upon the various real and personal property which was mort- 
 gaged, see Wisden v. Wisden (5 Jur. N. S. 455) ; and Early v. Early 
 (16 Ch. D. 214, n.) and In re Athill, Athill v. Athill (16 Ch. D. 
 211), decided that a " collateral " is not necessarily a " secondary " 
 security. Points 2 and 3 in the leading case were disposed of as 
 follows : — Since 30 & 31 Vict. c. 69, a mere charge of debts on person- 
 alty or on realty does not indicate a sufficient intention to exonerate 
 the mortgaged estate, and the words in the present will, "just debts" 
 and " in aid of my personal estate and in exoneration of my other real 
 estate," were treated as merely amounting to a declaration that the 
 real estate was to be exonerated only to the same extent as the 
 personalty was aided, and as by Locke King's Act the personal estate 
 is not liable, their practical effect was nothing. 
 
 In In re Cockcroft, Broadbent v. Groves (24 Ch. D. 94), a testator 
 had contracted to buy real estate, and had paid a deposit. In 1881 h& 
 specifically devised the real estate to his daughter for life, with 
 remainder to her children, but the will did not contain any intimation 
 either express or implied that the purchase-money should be paid 
 out of the personal estate, which was undisposed of. The testator 
 having died without having completed the purchase, an action for 
 specific performance was commenced against his executors and trustees, 
 which was compromised on the terms that the contract should be 
 rescinded and that the vendor should retain the deposit and be paid 
 his costs. The devisees, alleging conversion, claimed the unpaid pur- 
 chase-money. The Court assumed that conversion had taken place. 
 
LOCKE KING'S ACTS. 233 
 
 but decided that these Acts applied, and that accordingly all that the 
 devisees were entitled to was the real estate charge! with the unpaid 
 purchase-money; in other woids, to nothing: In re Kidd ([1894] 
 3 Ch. 558). Mortgaged lands within the meaning of these Acts Lands 
 include lands delivered in execution under a writ of elegit to a seized 
 testator's creditors : In re Anthony, Anthony v. Anthony ([1892] u , nd !. r an 
 lCh.4-50). ' 9 
 
 In In re Bossiter, JRossiter v. Eossiter (13 Ch. D. 355), a testator by Intentions 
 a will dated in 1877 directed his executors to pay "all my just debts to the 
 out of my personal estate, in exoneration of my real estate." The con laly ' 
 question was how a debt due on the security of part of his real estate 
 was to be borne. It was held that the mortgaged estate must primarily 
 bear the mortgage debt. Jessel, M.R., in delivering judgment, said 
 that the testator was under the mistaken notion that his debts were 
 primarily charged on his real estate, but the Act expressly said that 
 a direction was insufficient to exonerate the mortgaged estate. 
 " Why,'' asked his Lordship, " should I make a difference because 
 the testator did not know the law? In my opinion there is nothing 
 here referring by necessary implication to any debt charged by way of 
 mortgage on the real estate." 
 
 In In re Smith, Hanningtoh v. True, Giles v. True (33 Ch. D. 
 195), where the previous decisions in Sackville v. Smythe (L. R. 17 
 Eq. 153) and Gibbins v. Eyden (L. E. 7 Eq. 371) were followed, and 
 Brownson v. Lawrance (L. R. 6 Eq. 1) dissented from, a testator, 
 after directing the payment of his debts, devised a freehold house to 
 his wife " absolutely to do with as she thinks proper ; " and he re- 
 quested his executors to sell and convert into money whatever freehold 
 or other property he possessed, and to collect all debts due to him, 
 and to apply the proceeds in the payment of certain legacies. The 
 testator's real estate was all subject to one mortgage. The Court 
 decided that the mortgage debt must be borne rateably by all the 
 properties comprised in the mortgage. North, J., after pointing out 
 that Brownson v. Lawrance was decided on the grounds that a 
 residuary is not a specific devise, and that this is an error, Hensman 
 v. Fryer (L. R. 3 Ch. 420); Lancefleld v. Iggulden (L. R. 10 Ch. 136), 
 said: "I can find nothing else in the will to take the case out of the 
 general rule, except the words ' absolutely to do with as she thinks 
 proper.' But that is no more than a gift to the widow in fee." 
 
 In In re Fleck, Culston v. Boberts (37 Ch. D. 677), the testator 
 directed that all his private debts should be paid out of the moneys 
 arising from certain policies of assurance. He then devised his real 
 estates on certain trusts. After this he bequeathed the residue of his 
 personal property subject to the payment of his trade debts, for the 
 benefit of his son. Subsequently to the date of his will he deposited 
 the title deeds of the real estate with his banker, to secure an over- 
 drawn trade account. It was held that this amounted to a declaration 
 of intention contrary to Locke King's Act, and that the devisee of the 
 real estate was entitled to have it exonerate 1 from the banker's lien. 
 
234 LOCKE KINO'S ACTS. 
 
 North, J., in delivering judgment, said: "I do not consider it 
 necessary under that statute that the debt or debts should be referred 
 to as mortgage debts. Such a debt must be sufficiently described to 
 identify it as being the particular debt which happens to be secured by 
 mortgage. And if a debt is described as the debt which the testator 
 owes his banker, which in fact is secured by mortgage, there would not 
 by that fact be the less an expression of a contrary intention. All 
 that is required is, that the debt shall be specifically described and 
 identified in some way. Compare Created v. Created (26 Beav. 621), 
 In re Nevffl (62 L. T. 864). 
 
 In In re Campbell, Campbell v. Campbell ([1893] 2 Ch. 206) it was 
 decided that a mortgage debt for £17,337 to which the mortgagor 
 would be entitled on tbe dropping of two lives was on the construction 
 of the deeds relating to the mortgage, a mortgage of the interest 
 payable on the £17,337 during the two lives in question, and of the 
 capital sum only in case it should " ever be required " during those 
 two lives ; and it was not called in. Consequently after the second 
 life dropped the devisee of the mortgaged property was entitled to it 
 free and discharged from the £17,337. In other words, the will was 
 construed as though the mortgagor's reversionary interest in the fund 
 must have been held to have merged with his estate in the property 
 mortgaged, subject to the charge being kept separate for a limited 
 period and purpose. 
 
 A direction to trustees to hold the net proceeds of the sale of realty 
 and personalty " after and subject to the payment of " testator's debts 
 and legacies, throws the debts and legacies upon the realty, but only 
 in aid not in exoneration of the personalty. " .Net " is to be construed 
 as though it meant "after payment of mortgages out of the realty : " 
 In re Boards, Knight v. Knight ([1895] 1 Ch. 499), following Elliott 
 v. Dearsley (16 Cn. D. 322), which must be taken as overruling 
 the dictum of Jessei, M.B., in Gain/ford v. Dunn (17 Eq. 405, 408). 
 
ORDER IN ADMINISTRATION. 235 
 
 Order in Administration. 
 
 TROTT v. BUCHANAN. 
 
 (28 Ch. D. 446.) 
 
 The general 'personal estate is the primary fund for Principle, 
 payment of debts, and funeral and testamentary ex- 
 penses, unless the testator has either by express words 
 or necessary implication exonerated it. This rule 
 applies where the real estate is charged either by deed 
 or will, but not where specific personal estate is so 
 charged. 
 
 John Trott by deed conveyed certain real and personal Summary 
 estate to trustees on trust after his decease to sell and 
 pay his debts and funeral expenses out of the proceeds of 
 sale, and hold the balance on trust for his sons and their 
 children. He subsequently by will, after reciting the 
 deed, left all the residue of his property not comprised 
 in the deed for the benefit of his wife and granddaughter. 
 It was held that the estate must be resorted to for the 
 payment of debts in the following order :— 
 
 1. Personalty comprised in the deed. 
 
 2. General personal estate. 
 
 3. Eealty comprised in the deed. 
 
 In this case the Court proceeded upon the principle laid down nearly 
 180 years before in the case of French v. Chichester (2 Vern. 568 ; 3 
 Bro. P. C, 2nd ed. p. 16), the records of which were found to correct 
 in material points the statement of facts given in Vernon v. Brown and 
 the text-hooks. 
 
 The case came twice before the Court. Pearson, J., stated and dis- Diff eren t 
 posed of the point raised upon the first occasion as follows : — " The effect of 
 testator does not, as he might have done, give to his wife all his real charging 
 and personal estate not comprised in the trusts of the deed, but he ea ^' 
 
236 
 
 ORDER IN ADMINISTRATION. 
 
 and 
 personalty. 
 
 Order in 
 absence of 
 intention 
 being 
 expressed. 
 
 gives her all the residue of his real and personal estate not comprised 
 in the trusts of the deed. There is not a single previous gift in the 
 will. It is not, therefore, a gift of the residue after deducting previous 
 gifts, hut still it is a gift of 'residue.' To my mind this can mean 
 nothing else but the residue after making those deductions which by 
 law ought to be made. The words are so strong as to exclude any 
 inference that the testator intended to interfere with the operation of 
 the ordinary rule of law that personal estate is the primary fund for 
 the payment of debts, or that he intended the trust property to be 
 employed in the exoneration of the personal estate." 
 
 Subsequently it was discovered that part of the realty represented 
 an unauthorized investment of personalty, and therefore ought to be 
 regarded as personalty subject to the trusts of the deed. Pearson, J., 
 said on this point that, though as regards real estate the rule of law 
 was completely established, which said that the personal estate must 
 bear the debts, unless a testator had by express words or by some 
 expression of intention of the strongest kind said that it was to be 
 otherwise, the same rule did not apply to personal estate specifically 
 appropriated for the payment of debts. Here there was a positive 
 recital of the trust deed, a declaration that the trusts cf it were for the 
 payment of the testator's debts, and an express gift to the widow of 
 the residue not comprised in the deed. The latter point is important, 
 for if the residue had been undisposed of, its liability would have 
 taken precedence over that of the personalty specifically given for 
 payment of debts : Newbegin v. Bell (23 Beav. 386) ; Corbet v. Corbet 
 (I. E. 8 Eq. 407) ; but see In re I. Williams, Green v. Burgess (59 
 L. T. 310). 
 
 Subject to the expression of an intention to the contrary by the 
 testator or intestate, and (as regards mortgage debts) to the Real 
 Estate Charges Acts (see ante, pp. 229-234), the following is the order 
 of application of assets for the payment of debts : — 
 
 1. The general personal estate (including lapsed legacies and shares 
 of residue, whether effectual or lapsed). 
 
 2. Lands devised or directed to be sold to pay debts. 
 
 3. Eeal property which descends to the heir. 
 
 4. Eeal property charged with debts, whether devised or passing 
 by descent. 
 
 5. General pecuniary legacies (including annuities and legacy 
 duties on a specific legacy bequeathed free of duty). In this class, 
 however, legacies for value rank beforo other legacies ; and a testator 
 may use words which make one legacy rank before another — as 
 where he gives the rest of a specific fund — but not where he merely 
 says " first," " secondly," etc., nor where he merely gives directions 
 as to time: In re Schweder's Estate, Oppenlieim v. Schweder ([1891] 
 3 Oh. 44). 
 
 6. Specific legacies and real estate devised whether in terms specific 
 or residuary are liable to contribute pro rata. 
 
 7. Eeal and personal property over which the testator has a 
 
OBDER IN ADMINISTRATION. 
 
 237 
 
 general power of appointment, and which he has appointed by his 
 will or by voluntary deed. 
 
 8. Land in a foreign country which is governed by the lex loci rei 
 sitce, and therefore not liable for any debts which the law of the 
 foreign country would not cast upon it : Harrison v. Harrison (L. E. 
 8 Ch. 342). 
 
 9. The testator's or intestate's widow's paraphernalia (which must 
 be distinguished from gifts by the husband to the wife of paraphernal 
 articles since the Married Women's Property Act, 1882) (see p. 99). 
 
 The law as to residuary being on the same footing as specific Classes 
 devisees, and both ranking before pecuniary legatees, was settled 5 an d 6 - 
 in Tomkins v. Coulthurst (1 Ch. D. 626), Farquharson v. Floyer 
 (3 Ch. D. 109), where the previous decisions are collected, and 
 Hensman v. Fryer (L. K. 3 Ch. 420) is only law in so far as it 
 asserts the first of these two principles (see ante, p. 233). 
 
 In In re Stokes, Parsons v. Miller (67 L. T. 223), there was a Classes 
 direction to pay debts and a devise which made the realty chargeable 4 an< ^ *>. 
 with debts within the meaning of the rule stated thus by Jessel, M.R., 
 in In re Tanqueray-Willaume and Landau (20 Ch. D. 465, 476), 
 quoting Fry, J., in In re Bailey (12 Ch. D. 268, 273) : 
 
 "Where there is a direction that the executors shall pay the 
 testator's debts, followed by a gift of all his real estate to them, 
 either beneficially or on trust, all the debts will be payable out 
 of all the estate so given to them. The same rule applies whether 
 the executor takes the whole beneficial interest, as in Henvell 
 v. Whittaher (3 Euss. 343), or only a life' interest, as in Finch v. 
 Sattersley (3 Euss. 345, n.), or no beneficial interest at all, as 
 in Hartland v. Murrell (27 Beav. 204). But in all cases in which 
 that has been held, the entirety of the liability has been thrown 
 ■on the entirety of the estate." Compare In re Be Burgh Lawson 
 .(41 Ch. D. 568) (married women). 
 
 There had been a precisely similar direction and devise in In re 
 Bate, Bate v. Bate (43 Ch. D. 600), where Kay, J., held that the 
 fourth and fifth classes of debts must be transposed. Accordingly 
 they were transposed in the second edition of this book and in the 
 fifth edition of Jarman on Wills. Stirling, J., however, pointed out 
 in In re Stokes that the most important authorities were not cited 
 before Kay, J., and refused to be bound by his authority. In In re 
 Butler, Le Bas v. Herbert ([1894] 3 Ch. 250), Kekewich, J., wavered 
 between Kay, J., and Stirling, J. In In re Salt, Brothwood v. 
 Keeling ([1895] 2 Ch. 203), Chitty, J., followed Stirling, J., saying, 
 ■" The reasoning of Stirling, J., in In re Stokes appears to me to be 
 unanswerable " (p. 204), which is surely the case. 
 
 As to what words charge realty with debts, see In re Head's class 4. 
 Trustees and Macdonald (45 Ch. D. 310) (power) ; In re Green, 
 Baldock v. Green (40 Ch. D. 610) (income). 
 
 In In re Bawden, National Provincial Bank of England v. 
 ■Cresswell ([1894] 1 Ch. 693), a testator bequeathed pecuniary 
 
 Legacies 
 and debts 
 
238 
 
 ORDER IN ADMINISTRATION. 
 
 charged on 
 realty. 
 
 Class 6. 
 Specific 
 bequests. 
 
 Exonera- 
 tion of 
 personalty. 
 
 Testamen- 
 tary ex- 
 penses. 
 
 Incidence 
 of estate 
 duties. 
 
 legacies inter alia, and bequeathed and devised all his real and 
 personal estate " not otherwise disposed of " to his executor. On 
 the principle of Grevitte v. Browne (7 H. L. C. 689), the legacies 
 were chargeable on the residuary realty in aid of the residuary 
 personalty. It was held, therefore, that in order to provide for 
 payment of the testator's debts the residuary realty ought to be 
 valued without making any deduction for the legacies charged 
 thereon. This last point was decided on the authority of In re 
 Saunders-Davies (34 Ch. D. 482), and the authorities cited therein. 
 
 The law with regard to the exemption of personal estate specifically 
 bequeathed was thus stated by the House of Lords in Robertson v. 
 Broadbent (8 App. Cas. 815): "If the bequest is of a particular 
 chattel, such as a horse or a ship, it is manifest that the testator 
 intended the thing itself to pass unconditionally and in statu quo to 
 the legatee, which could not be, if it were subject to the payment of 
 general and testamentary expenses, debts, and pecuniary legacies. As 
 against creditors the testator cannot wholly release it from liability 
 for his debts, but as against all persons taking benefits under his will 
 he may. The same principle applies to everything which a testator, 
 identifying it by a sufficient description and manifesting an intention 
 that it should be enjoyed or taken in the state or condition indicated 
 by that description, separates in favour of a particular legatee from 
 the general mass of his personal estate." It was decided in this case 
 that a gift "of all my personal estate and effects . . . which shall 
 not consist of money or securities for money " was not specific. And 
 see our leading case of Macdonald v. Irvine ; and see In re Green, 
 Baldock v. Green (40 Ch. D. 610), Fairer v. Park (3 Ch. D. 309). 
 Contrast Powell v. Riley (12 Eq. 175) (" all my household goods and 
 furniture "). 
 
 It was decided in Kilford v. Blaney (31 Ch. D. 56) that where 
 personalty was exonerated from payment of debts by express words, 
 such exoneration does not enure for the benefit of those who take 
 otherwise than under the will. 
 
 A charge of or direction to pay " testamentary expenses " is held to 
 include the costs of an administration action : Miles v. Harrison 
 (L. E. 9 Ch. 316) ; Harloe v. Harloe (L. E. 20 Eq. 471) ; Ralph v. 
 Oarrick (5 Ch. D. 998); Penny v. Penny (11 Ch. D. 440); Sharp 
 v. Lush (10 Ch. D. 468) (" executorship expenses "). 
 
 Personalty only exonerated from payment of debts pays administra- 
 tion costs pro rata : In re Fitzgerald (26 W. E. 53). 
 
 Stamp duties payable under sect. 27 of the Customs and Inland 
 Revenue Act, 1881, and estate duties payable under sect. 5 of the 
 Customs and Inland Revenue Act, 1889, were, like the old probate 
 duty, payable out of the general personal estate : In re Bourne, 
 Martin v. Martin ([1893] 1 Ch. 188). And the same holds good 
 with regard to the estate duty and the " settlement estate duty," In 
 re Webber, Gribble v. Webber ([1896] 1 Ch. 914), in respect of property 
 passing to the executor as such under the Finance Act, 1894, and 
 
MARSHALLING. 239 
 
 whether the legacies are general or specific, In re Culverhouse, Cook 
 v. Culverhouse ([1896] W. N. 37 ; 74 L. T. 347), and similarly in 
 respect of money covenanted by marriage settlement to be paid after 
 the settlor's death : In re Gray, Gray v. Gray (74 L. T. 275). But the 
 account stamp duty payable under sect. 38,. sub-sect. 2 (c), of the Act 
 of 1881, and sect. 11 of the Act of 1889, on an appointment of £22,000 
 and the residue of the settled funds fell rateably on the specific and 
 residuary appointees: In re Croft, Deane v. Croft ([1892] 1 Ch. 652); 
 In re Shaw, Tucket v. Shaw ([1895] 1 Ch. 343). And the same 
 holds good with regard to the estate duty under the Act of 1894, 
 where a similar appointment is made, on the ground that the property 
 does not pass to the executor as such, and therefore falls within 
 sect. 14, sub-sect. 1 : In re Countess of Orford, Cartwright v. Due del 
 Balzo ([1896] 1 Ch. 257). 
 
 The practice with regard to costs where real and personal estate are Costs, 
 administered in one action was settled by In re Middleton, Thompson 
 y. Harris (19 Ch. D. 552) ; In re Price (31 Ch. D. 485) ; Patching v. 
 Barnett (51 L. J. (Ch.) 74) ; In re Roper, Taylor v. Bland (45 Ch. D. 
 126). The rule is that the costs of an administration action, so far 
 as they had been increased by the administration of the real estate, 
 are to be borne by the real estate. It was also laid down in In 
 re Middleton (ubi supra) that where the estate is insufficient the 
 plaintiff is not necessarily entitled to his costs in priority to the 
 defendants. See Theobald on Wills, 4th ed. pp. 656 et seq. ; Jarman 
 on Wills, 5th ed. pp. 1425 et seq. 
 
 Marshalling. 
 
 WEBB v. SMITH. 
 
 (30 Ch. D. 192.) 
 
 Assets will not he marshalled in favour of a creditor Principle. 
 to the prejudice of another man's rights. 
 
 Smith & Co., a firm of auctioneers, had in their hands Summary 
 two sums of money belonging to Canning, one consisting of facts * 
 of the proceeds of the 6ale of a brewery, the other the 
 price of some furniture sold by them for Canning. 
 
240 
 
 MARSHALLING. 
 
 Marshal- 
 ling. 
 
 Equitable 
 assign- 
 ment. 
 
 Lien. 
 
 Case for 
 marshal- 
 ling. 
 
 Canning, who owed Webb £503, wrote to Smith & Co. 
 requesting them to pay Webb the £503 on the comple- 
 tion of the purchase of the brewery, and to charge the 
 same to his account. Smith & Co. wrote to Webb ac- 
 knowledging the receipt of the letter, and subsequently 
 paid Canning the balance of the furniture fund and 
 appropriated part of the brewery money in payment 
 of their charges in respect of the sale. Webb claimed 
 that Smith & Co. ought to have marshalled the funds 
 and charged their brewery costs upon the furniture 
 fund, so as to leave the brewery money available for 
 payment of his debt ; but the Court of Appeal decided 
 that the doctrine of marshalling did not apply. 
 
 This case was characterized by the Court of Appeal as one of con- 
 siderable importance "in which an experiment was tried for the first 
 time with regard to the doctrine of marshalling," the difficulty arising 
 from certain expressions of Lord Bldon in the old case of Aldrich v. 
 Cooper (8 Vesey, 382, 396), explained in the leading case at page 200. 
 The general principle of marshalling, as stated in Trimmer v. Bayne 
 (9 Vesey, 209, 211) by Sir W. Grant, whose statement was cited with 
 approval by the Court of Appeal, is " that a person having resort to 
 two funds shall not by his choice disappoint another having one only." 
 
 In the present case the letter addressed by Canning to Smith & Co., 
 coupled with the acknowledgment of the letter to Webb, constituted 
 an equitable assignment of the brewery fund in favour of the latter, 
 so that Smith & Co. would hand over any portion of that fund to 
 Canning at their own risk. Now Smith & Co. had, on the authority 
 of Robinson v. Rutter (4 E. & B. 954), a particular lien on the brewery 
 fund ; and they also had a particular lien against the furniture fund : 
 Roxburghe v. Cox (17 Ch. D. 520). How then could they pay over 
 the latter to Canning otherwise than at their own risk if they could 
 resort to two funds and Webb only to one fund ? The answer was 
 that they could only resort to the two funds for distinct purposes: to 
 the brewery fund for the brewery expenses, and to the furniture funtl 
 for the furniture expenses. Had they paid the brewery fund to Webb 
 there would have been no fund out of which they could have helped 
 themselves in order to repay themselves the brewery expenses. True, 
 if Smith & Co. had retained the furniture fund, and Canning had sued 
 them for it, they might have pleaded set-off: R. S. C, 1883, Order xix., r. 
 3 ; but the Court may, or in some cases, Eassell Y.Stanley ([1896] 1 Ch. 
 107), must refuse set-off, so that set-off is not so secure a remedy as lien, 
 and marshalling has never been employed so as to compel a creditor to 
 
MARSHALLING. 241 
 
 accept an insecure for a secure remedy. " In the present case," said 
 Lindley, L.J., "there were not two funds to which the defendants could 
 resort, that is, two funds standing upon an equal footing. The defend- 
 ants had a superior right of lien as to the fund produced by the sale of 
 the brewery. I think, however, that they could not have deprived 
 the plaintiff of the benefit of his charge, if there had been two funds 
 to which they might have resorted under equal circumstances." 
 
 The doctrine of marshalling is applied in favour of a beneficiary Marshal- 
 under a will or intestacy where debts have been paid out of property lin & as J >e ' 
 to which he is entitled instead of out of a fund from which they are £ c i ar ; es 
 properly payable, having regard to the order of liability of different 
 classes of property for payment of debts (supra, p. 236). Thus, for 
 example, a specific devisee or legatee, if called upon to pay debts of 
 the testator, is entitled, to have the whole of the assets comprised in 
 the first five classes marshalled in his favour. So too, though upon 
 a different principle, where some legacies are charged on realty and 
 others are not, equity will marshal the legacies so as to throw upon 
 the realty those charged thereon, and to leave the personalty free 
 for the payment of the others : Scales v. Collins (9 Ha. 656) ; and see 
 cases cited under Trott v. Buchanan (supra). 
 
 The following examples elucidate other applications of this Marshal- 
 doctrine :— lin S as 
 
 (a) " If A. has a charge upon "Whiteacre and Blackacre, and if B. crec ii tors> 
 also has a charge upon Blackacre only, A. must take payment of his 
 charge out of Whiteacre, and must leave Blackacre so that B. the 
 other creditor, may follow it and obtain payment of his debt out of 
 it : " per Cotton, L. J., in the leading case. 
 
 (6) There are three successive mortgages by G. H. to A. B., C. D., 
 and E. F. A. B. is mortgagee of funds x. and y. ; C. D. of x. ; E. F. 
 of x. and y. A. B. satisfies his mortgage out of x. The residue of 
 x. and y. are paid into Court. C. D. may satisfy his claim out of y. : 
 In re Mower's Trusts (8 Eq. 110). 
 
 (c) A. B. is mortgagee of realty for £1000; G. H. the mortgagor 
 dies. Then (1) A. B. satisfies himself out of G. H.'s personalty. 
 Legatees of G. H. can raise £1000 out of his realty. (2) A. B. is also 
 executor and legatee of G. H. He Deed not retain his legacy out of 
 the personalty, nor will the Statute of Limitations run against him if 
 he does not do so : Binns v. Nichols (2 Eq. 256). 
 
 (d) A. B. deposits brandy with a partnership of which G. H. and 
 L. M. are members. G. H. wrongfully assigns it to a bank to secure 
 a partnership debt, which L. M. (who is not liable for the fraud) 
 guarantees. The bank sell the brandy. The firm becomes bankrupt. 
 A. B. can prove against L. M.'s separate assets : Ex parte Salting, In 
 re Stratton (25 Ch. D. 148), following Ex parte Alston (L. B. 4 Ch. 
 168). 
 
 (e) A. B. being master of a ship has a lien on ship and freight ; and 
 he executes bottomry bonds on ship freight and cargo to C. D. and 
 binds himself thereunder. A. B. may satisfy his claims in priority to 
 
 R 
 
242 
 
 MARSHALLING. 
 
 Law of 
 mortmain 
 and 
 charities. 
 
 C. D. out of the ship and freight in cases where C. D. can satisfy 
 his claim out of the cargo and (subject to A. B.'s claim) the ship 
 and freight : Tlie Edward Oliver (L. E. 1 A. & E. 379) ; The Eugenie 
 (L. E. 4 A. & E. 123). The ordinary Admiralty rule that the owners 
 of a bottomry bond must satisfy themselves out of ship and freight 
 before proceeding against cargo is thus waived. 
 
 (/) " The holder of a bottomry bond tried to compel the crew of a 
 ship to waive their right of maritime lien for wages for services 
 tendered, and to sue the owners, who were perfectly solvent. The 
 holder of the bottomry bond had only a remedy against the ship, 
 whereas the crew had also a personal remedy by action of debt against 
 the owners. The Judge of the Court of Admiralty held that he had 
 no jurisdiction to restrain the proceedings of the crew against the ship, 
 and to compel them to resort to a personal remedy against the ship- 
 owners ; and the reason given was that there was not two funds under 
 the control of the Court : " per Lindley, L. J., in the leading case, citing 
 The Arab (5 Jur. N. S. 417). 
 
 (g) An insurance company has limited liability towards its policy 
 holders ; unlimited towards its general creditors and for costs. (1) 
 A general creditor is mortgagee, and pays himself out of the limited 
 assets. The policy holders have no right to marshal : In re Inter- 
 national Life Assurance Society (2 Ch. D. 47G). (2) Some share- 
 holders compromise their unlimited liabilities under the Companies 
 Act, 1862, s. 160. Those who do not, pay further calls for costs ; 
 but may not marshal the compromise-money as between liability for 
 costs and under policies : In re Accidental Death Insurance Co. 
 (7 Ch. D. 568). 
 
 (h) A. B. is a secured creditor of Gr. H.'s life estate, which arises under 
 a voluntary deed ; C. D. is mortgagee of the fee simple by deed subse- 
 quent to the voluntary deed, and therefore can defeat the latter under 
 27 Eliz. c. 4. G-. H. satisfies C. D. partly out of his life estate. No 
 marshalling arises as Gr. H.'s remedy is as transferee of C. D.'s mort- 
 gage ; and A. B. cannot take any other remedy than what G. H. had : 
 Dolphin v. Aylward (L. E. 4 H. L. 486). 
 
 Attention may also be directed to the law on this subject with 
 regard to charities, in respect of which a very important change has 
 been introduced as pointed out, ante, p. 54, by 54 & 55 Vict. c. 73. 
 In cases not affected by this Act, the rule is as follows : — 
 
 The Court will not marshal assets in favour of a charity, but it will 
 give effect to a direction to marshal. If a testator give his real estate 
 and personal estate consisting of personalty savouring of realty as, for 
 instance, leaseholds and mortgage securities, and also pure personalty to 
 trustees upon trust to sell and pay his debts and legacies and bequeath 
 the residue to a charity, equity will not marshal the assets by throwing 
 the debts and ordinary legacies upon the proceeds of the real estate 
 and the personalty savouring of realty, in order to leave the pure 
 personalty for the charity. 
 
 Under the old law cases arose for the application of the doctrine 
 
MARSHALLING. 
 
 243 
 
 of marshalling, which have now been obviated by legislation. This 
 has been the case as between debtor and creditor. Thus by 3 & 4 
 Will. IV. c. 104, freeholds and copyholds were rendered liable for 
 simple contract debts, and by 32 & 33 Vict. c. 46, simple contract 
 and specialty debts were placed on an equality in the administration 
 of the estates of persons dying on or after the 1st of January, 1870. 
 Again, Locke King's Acts have in many cases made marshalling un- 
 necessary. Similarly marshalling will not be necessary where persons 
 die after the 5th of August, 1891, in the case of gifts by will to charities 
 (54 & 55 Vict. c. 73) : In re Bridget ([1894] 1 Ch. 297). Conse- 
 quently the following cases of what constitutes a direction to marshal 
 as between charities and other legatees or devisees by will are of only 
 secondary importance where persons die after that date. 
 
 Thus a gift to charities of residue, coupled with a direction that 
 the residue so given shall consist of pure personalty exclusively, 
 In re Arnold, Ravenscroft v. Workman (37 Ch. D. 637), or that 
 " only such part or parts of his estate and premises should be comprised 
 in the residue thereof" as should be pure personalty, Wills v. Bourne 
 (16 Eq. 487) ; Miles v. Harrison (L. E. 9 Ch. 316), is a direction to 
 marshal. 
 
 A mere gift of residue "save and except such parts thereof as 
 cannot by law be appropriated by will " to charities is not a direction 
 to marshal : In re Somers- Cocks, Wegg-Prosser v. Wegg-Prosser 
 ([1895] 2 Ch. 449). Compare Lewis v. Boetefeur (38 L. T. 93) (?). 
 See also Gaskin v. Rogers (2 Eq. 284) ; Beaumont v. Oliveira (L. K. 
 4 Ch. 309) (order). 
 
 In Mogg v. Hodges (2 Vesey, 52), Lord Hardwicke stated the prin- 
 ciple to be that though the Court would always marshal in furtherance 
 of justice, it would not set up an equity in order to support a bequest 
 which was contrary to law. 
 
 The rule of the Court in such cases is to appropriate the fund as if 
 no legal objection existed as to applying any part of it to the charitable 
 legacies, then holding so much of it to fail as would in that way be 
 payable out of the prohibited fund : per Lord Cottenham in Williams 
 v. Kershaw (1 Keen, 275, n.); and see Robinson v. Governors of the 
 London Hospital (10 Hare, 19) ; Johnson v. Lord Harrowby (Johns. 
 425). 
 
 Where contribution is ordered between different funds "each of 
 them ought to be placed in the same position as if it had contributed 
 its proper proportion at the time at which it ought to have done 
 so," and therefore the fund must contribute interest : Ashworth v. 
 Munn (34 Ch. D. 391). See Tudor's Law of Charities and Mortmain, 
 3rd ed. pp. 58 et seq., and notes to Corbyn v. French, Tudor's Eeal 
 Property Cases. 
 
 Statute 
 law super- 
 sedes mar- 
 shalling. 
 
 Cases 
 where 
 assets are 
 marshalled 
 for chari- 
 ties. 
 
 Practice, 
 
 Interest is 
 payable. 
 
244 
 
 CONTRIBUTION AMONG SURETIES. 
 
 Contribution among Sureties. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 Equality of 
 contribu^ 
 tiou is the 
 equity, 
 
 STEEL v. DIXON. 
 
 (17 Ch. D. 825.) 
 
 The principle as between co-sureties is equality of 
 burden and benefit. 
 
 Money was advanced to Kobinson on the security of a 
 promissory note for £800, which Dixon, Gurney, Steel, 
 and Chater signed as sureties. Dixon and Gurney only 
 consented to sign if security were given, and Kobinson 
 afterwards assigned property securing their share of 
 money payable on the note. Steel and Chater had no- 
 knowledge of this arrangement, but it was held that they 
 were entitled to share in the benefit of the security held 
 by Dixon and Gurney. 
 
 The Court in deciding this case, there heing no English authority 
 bearing precisely upon the subject, was guided by American pre- 
 cedents based on the rule in Dering v. Earl of Winchilsea ([1787], 
 1 Cox, 318), that " as between co-sureties there is to be equality of 
 the burden and of the benefit." " When I say equality," said Fry, J., 
 "I do not mean necessarily equality in its simplest form, but what 
 has been sometimes called proportionate equality. The result of the 
 case of Dering v. Earl of Winchilsea was expressed by Baron Alderson. 
 in Pendlebury v. Walker (4 Y. & C. Ex. p. 441) in these terms, that 
 ' where the same default of the principal renders all the co-sureties, 
 responsible, all are to contribute; and then the law superadds that, 
 which is not only the principle but the equitable mode of applying 
 the principle, that they should all contribute equally, if each is a 
 surety to an equal amount; and if not equally, then proportionably 
 to the amount for which each is a surety.' I hold, therefore, that 
 the result of Bering v. Earl of Winchilsea is to require that the- 
 ultimate burden, whatever it may be, is, as between the co-sureties, 
 to be borne by them in proportion to the shares of the debt for which 
 they have made themselves responsible. ... If that be the case, ii 
 
CONTRIBUTION AMONG SURETIES. 245 
 
 follows that each surety must bring into hotch-pot every benefit which 
 he has received in respect of the suretyship which he undertook." 
 
 He added, however, that the equity which raised the surety's right which may 
 to have all benefits brought into hotchpot, may be varied or departed * * e ~ , , 
 from. Thus— contract, 
 
 1. The co-sureties for whose benefit the security would otherwise or forfeited 
 «nure, may renounce or contract themselves out of the benefit. Y default. 
 
 2. One co-surety may by reason of his default in performing his 
 duty towards another co-surety estop himself from asserting the equity 
 which he would otherwise have had against him. 
 
 In the leading case only £400, realized by the securitj', was brought Decision of 
 into hotchpot. It may be wondered why the whole £800 was not f e t m S' ase 
 claimed. Steel and Dixon had to hand over £200 out of this £400 
 to their co-sureties, and were therefore £200 out of pocket. Why 
 did not the guarantee cover this second £200 ? And if it covered the 
 second £200, where could you stop? Ought it not to cover the 
 whole fund ? The very question was asked in Berridge v. Berridge 
 (44 Ch. D. 168), and answered in the affirmative. A counter-security 
 to the one guarantor for his liability must include the whole debt. 
 
 In Macdonald v. Whitfield (8 App. Cas. 733) successive endorsers 
 of a promissory note were held under the circumstances of the case to 
 have acted not upon the contract of suretyship implied by law merchant 
 — under which each successor indemnifies his predecessor : Duncan, 
 Fox & Co. v. North and South Wales Bank (6 App. 1)— but upon 
 the contract of suretyship, under which equitable rules prevail ; and 
 the endorser who paid the note became entitled to equal contribution 
 from all the other endorsers. In either case payment gives a right to 
 the payee's securities. 
 
 In In re Arcedeckne, Atkins v. Arcedeckne (24 Cb. D. 709), one of 
 the sureties jointly with his father paid the guaranteed debt ; the son 
 was only allowed to enforce contribution from his co-sureties on bring- 
 ing into hotchpot a security which his father had received from the 
 creditor. Pearson, J., said, " I treat the father and son as if they were 
 * one person.' " 
 
 Where there are two sureties equally liable on a bond, and one 
 dies, and a new bond is given so as to make deceased's estate still 
 liable, but making a new equally liable with the continuing surety, 
 the liability as between the three sureties will be in thirds : In re Sir 
 J. Ennis, Coles v. Peyton ([1893] 3 Ch. 238). 
 
 Down to In re Walker, Sheffield Banking Co. v. Clayton ([1892] 
 1 Ch. 621), it was thought that a case two hundred years old, Mawer 
 v. Harrison (1 Eq. Cas. Abr. 93), had decided that a principal creditor 
 takes the benefit of counter-securities given to the surety by the 
 debtor ; but Stirling, J., having sent for the record which did not 
 bear out this absurd idea, decided the opposite. 
 
 A surety's right to indemnity from his co-sureties ranks with simple 
 contract debts, though he be surety to a bond : Ferguson v. Gibson 
 (14 Eq. 379); In re Illidge (27 Ch. D. 482); but having paid on the 
 
246 CONTRIBUTION AMONG SURETIES. 
 
 Mercantile bond lie becomes entitled to it, both at equity and under the Mercantile 
 
 Law Law Amendment Act, 1856 (19 & 20 Vict. c. 97, s. 5) ; a substitution 
 
 mmtAct takes P lace similar to that in marshalling and subrogation, and he is 
 
 1856. ipso facto transformed into specialty creditor. Thus in In re M'Myn, 
 
 Ligldbown v. M'Myn (33 Ch. D. 575), it was held that a co-surety 
 
 who had satisfied a judgment obtained by the creditor against the 
 
 debtor and her co-surety, was entitled to stand in the place of the 
 
 judgment creditor, and thus obtain priority over the unsecured 
 
 creditors in an administration action (see In re Maggi (20 Ch. D. 
 
 545), cited In re Leng ([1895] 1 Ch. 652, 656, 661), although she had 
 
 not obtained an assignment of the judgment. A surety to the Crown, 
 
 who has paid the debt of his deceased principal, is entitled to the 
 
 Crown's priority in the administration of his principal's estate : In re 
 
 Lord Churchill, Manisty v. Churchill (39 Ch. D. 174). 
 
 Surety and Another curious result follows from this section. If one surety is 
 
 bankrupt bankrupt and the principal creditors put in a proof for their whole 
 
 co-surety. (j e bt, the other surety can pay the principal creditors and continue to 
 
 prove for the whole debt ; although he is not allowed to recover more 
 
 than the amount for which he is liable, as between surety and surety. 
 
 Davey, L.J., intimated that this rule would probably not apply if the 
 
 proof of the creditors had not been already put in : In re Parker, 
 
 Morgan v. Bill ([1894] 3 Ch. 400). So if one surety is bankrupt the 
 
 solvent sureties must bear the loss proportionately inter se : Bitchman 
 
 Y. Stewart (3 Drew, 271). So if a surety guarantees £2000 (being 
 
 part of a floating balance), and the creditor proves for the whole debt 
 
 (£4000) against the debtor, and gets £1000 by so proving, and then 
 
 claims to recover £2000 from the surety, the surety may counter-claim 
 
 from him £500. That is to say, if the creditor gets a quarter of his 
 
 debt from the baukrupt he can only get three-quarters of the 
 
 guarantee from the surety : Gray v. Sechham (L. R. 7 Ch. 680). 
 
 Secus, if he had guaranteed £2000 part of an ascertained debt of 
 
 £4000 : Ellis v. Emmanuel (1 Exch. D. 157). 
 
 s , A surety may redeem the principal mortgage debt, Green v. Wynn 
 
 mortga- (L. B. 4 Ch. 204), and having redeemed takes the securities held by 
 
 gees. the principal creditors free from subsequent incumbrances created 
 
 without his consent: Forbes v. Jackson (19 Ch. D. 615); and with 
 
 the right of consolidation which the mortgagee had: Beyman v. 
 
 Dubois (13 Eq. 158). 
 
 Actions ^ common l aw an action for contribution was represented by the 
 
 of in- quasi-equitable action for " money paid to the use " of the defendant ; 
 
 demniiy. consequently the money had to be actually paid before any right of 
 
 action accrued. The judgment in Ex parte Snowdon, In re Snowdon 
 
 (17 Ch. D. 44), only proved that a surety cannot take out a debtor's 
 
 summons and make his co-surety bankrupt until he can show that he 
 
 has paid his proportion or more than his proportion of the whole debt ; 
 
 and in Hughes Hallett v. Indian Mammoth Gold Mines Co. (22 Ch. 
 
 D. 561), an action for indemnity was refused on the ground that there 
 
 was no reasonable ground for fear that liability would be incurred. 
 
CONTRIBUTION AMONG SURETIES. 
 
 Ill 
 
 Compare Lloyd v. Dimmach (7 Ch. D. 398) ; Antrobus v. Davidson 
 (3 Mer. 579). On the other hand, the action has been successfully 
 brought in Wooldridge v. Norris (6 Eq. 410); Cruse v. Paine (L. H. 
 4 Ch. 441) (see order); Hobbs v. Wayet (36 Ch. D. 256); Mathews 
 v. Saurin (31 L. E. Ir. 181), and Wolmershausen v. Gullick ([1893J 
 2 Ch. 514), where the authorities are discussed ; and compare Lacey 
 v. Hill (18 Eq. 182). Iu Wolmershausen v. Gullick a claim in an 
 administration action by the principal creditor against a deceased 
 surety's estate for the whole debt had been allowed ; and third party 
 procedure was held to be inapplicable to an administration action. 
 Executrix of deceased then brought an action (before she paid any- 
 thing) for indemnity ; and a declaration was made that she was entitled 
 to indemnity, and to apply in Chambers whenever she should pay 
 anything. 
 
 Two further complications arose. One co-surety had been bankrupt 
 and discharged before the surety had been called on to pay anything ; 
 he was held to be discharged from this debt. Compare Hardy v. 
 Fothergill (13 .App. Cas. 351). On the other hand, for the purposes 
 of the Statute of Limitations, no debt accrued as between surety 
 and co-surety until their reciprocal liability was ascertained by 
 judgment or allowance. 
 
 It was held in Ex parte Young, In re Kitchin (17 Ch. D. 668), 
 (following the authority of an American case), that in the absence of 
 special agreement a judgment or award against the principal debtor is 
 res inter alios acta, and does not bind the surety. If a guarantee is 
 joint without being several, a judgment against one guarantor is a 
 bar to an action against the others, Kendall v. Hamilton (4 App. 
 Cas. 504) ; unless the first judgment is a judgment upon a collateral 
 security, e.g. a cheque : Wegg Prosser v. Evans ([1895] 1 Q. B. 108), 
 overruling Cambefort v. Chapman (19 Q. B. D. 229). 
 
 A contract of suretyship was annulled in Williams v. Bayley 
 (L. E. 1 H. L. 200), because it was made under fear that the surety's 
 son would be prosecuted. In Davies v. London and Provincial 
 Insurance Co. (8 Ch. D. 469), similar circumstances existed, but the 
 principal creditor knew that the fear was groundless. This contract 
 was annulled on the ground of non-disclosure. Pry, J., said, that 
 although suretyship is not a contract uberrimce fidei, "very little is 
 sufficient " to avoid it where, as here, it is voluntary. 
 
 During the continuance of the security there is a continuing obliga- 
 tion on the debtor to disclose material facts to the surety : Phillips 
 v. Foxall (L. E. 7 Q. B. 666). Compare Burgess v. Eve (13 Eq. 450). 
 A release to a debtor or co-surety extinguishes the remedy against the 
 surety : Mercantile Bank of Sydney v. Taylor ([1893] A. C. 317) ; 
 Commercial Bank of Tasmania v. Jones ([1893] A. C. 313) ; but see 
 Rainbow v. Juggins (5 Q. B. D. 422); a partial release to a co- 
 surety : Ellesmere Brewery Co. v. Cooper ([1896] 1 Q. B. 75) ; action 
 by the creditor implying abandonment of the contract with the 
 debtor : Hewison v. Ricketts (71 L. T. 191) ; contrast Barber v. 
 
 Statute of 
 Limita- 
 tions. 
 
 Judgment 
 against 
 one co- 
 surety. 
 
 Contract 
 void ab 
 initio. 
 
 Discharge 
 of surety. 
 
248 
 
 CONTRIBUTION AMONG SURETIES. 
 
 By con- 
 tract to ' 
 give time. 
 
 Effect of 
 discharge. 
 
 Generally. 
 
 Machrell (68 L. T. 29); and laches by the creditor produce the 
 same effect, but see Mayor, etc., of Kingston-upon-B.all v. Harding 
 ([1892] 2 Q. B. 494). 
 
 Further, if any arrangement is made by the principal creditor and 
 debtor by which the surety's position is prejudiced, the surety is 
 discharged. Thus, " If you agree with the principal to give him time, 
 it is contrary to that agreement that you should sue the surety, 
 because if you sue the surety you immediately turn him into the 
 principal, and therefore your act breaks the agreement iDto which 
 you have entered with the principal : " per Lord Hatherley, in Oriental 
 Financial Corporation v. Overend, Curney & Co. (L. E. 7 Ch. 
 150). Such contract to give time must be binding, and must be with 
 the principal and not, e.g., with a co-surety : Clarke v. Birley (41 Ch. 
 D. 422) ; and it makes no difference that the surety was formerly co- 
 principal, if the creditor knows that he is now surety : Rouse v. 
 Bradford Banking Co. ([1894] A. C. 586). The surety may, how- 
 ever, contract himself out of this right beforehand. For example, see 
 S. C. [1894] 2 Ch. 32, per Lindley and A. L. Smith, L.JJ. ; Whiting 
 v. Burke (L. R. 6 Ch. 342). In Rouse v. Bradford Banking Co. (ubi 
 supra) the original agreement was to guarantee an overdraft of 
 £50,000. Permission to iucrease this overdraft to £53,000 for a 
 limited period was held not to discharge the surety. Nor was he 
 discharged by a subsequent reduction of the overdraft to £45,000, 
 followed by a subsequent collateral contract for value to honour bills 
 to the extent of £10,000. And see Bolton v. Buckenham ([1891] 1 
 Q. B. 278) (mortgages). 
 
 When the surety is discharged, securities given by him are released 
 also: Bolton v. Salmon ([1891] 2 Ch. 48). 
 
 Other recent cases on suretyship are In re Silvester ([1895] 1 Ch. 
 573), commenting on Coulthart v. Clementson (5 Q. B. D. 42) (con- 
 tinuing guarantee) ; In re Graham ([1895] 1 Ch. 66) (receiver) ; 
 Bane v. Mortgage Insurance Corporation ([1894] 1 Q. B. 54) (in- 
 surance or suretyship? result the same). 
 
LIFE INSURANCE. 249 
 
 Life Insurance. 
 
 Lire LESLIE: LESLIE r.PEENCH. 
 (23 Ch. D. 552.) 
 
 A stranger or a part owner of a policy of life in- Principle. 
 surance cannot acquire a lien on the proceeds of the 
 policy for premiums paid by him except (1) by contract, 
 (2) as trustee, (3) as mortgagee, (4) by subrogation. 
 
 Mrs. French, a widow, effected a policy on her own Summary 
 
 or tacts. 
 
 life for £5000. Soon after she married Mr. Leslie, the 
 testator, and handed the policy to him. Subsequently, 
 Mr. Leslie covenanted to pay £6000 on the death of his 
 wife to trustees on the trusts of his daughter's marriage 
 settlement. He then assigned the policy to the trustees 
 as security and covenanted with them to pay the pre- 
 miums during the life of his wife. Mr. Leslie paid the 
 premiums until his death, and after his death his 
 executors continued to pay them out of his estate. The 
 question then arose whether his estate was entitled to 
 a lien on the policy for the amount of the premiums 
 paid by him and his executors. The Court decided that 
 there was no lien. 
 
 created : 
 
 In this case Fry, J., said that the authorities established that a lieu Lien or 
 on policy moneys for premiums paid by a mere stranger or part owner cnal 'ge 
 arises in only four cases. It is obvious from Stott v. Milne and 
 National Provincial Bank v. Gaines (supra, pp. 160, 191) that the 
 second and third are subdivisions of the first class of cases. The fourth 
 class is a mere pendant to the second and third classes, just as Aylwin 
 v. Witty (see below) is a pendant to the first class. As, however, Justice 
 Fry's classes have been quoted in nearly every succeeding case, we will 
 keep them, transposing only the third and fourth classes. They are 
 as follows : — 
 
250 
 
 LIFE INSURANCE. 
 
 1. By 
 contract ; 
 
 2. By pay- 
 ment by 
 trustees ; 
 
 3. Or 
 
 mortga- 
 gees; 
 
 4. By sub- 
 rogation to 
 trustees : 
 
 or mortga- 
 gees. 
 
 1. By contract with the beneficial owner ; and, as we saw, a surety 
 may in certain cases be substituted for the beneficial owner. Thus, in 
 Aylwin v. Witty (30 L. J. Ch. 860), a mortgagor of a policy con- 
 tracted with a mortgagee to pay the premiums, and the sureties to 
 the mortgagor paid the premiums ; the sureties were entitled to a lieu 
 on the principle that the contract of suretyship (see Steel v. Dixon) 
 entitled them to all the mortgagee's securities. 
 
 2. By reason of the right of trustees to indemnity out of their trust 
 property for money expended by them in its preservation. If trustees 
 have money in hand to pay premiums, they cannot by borrowing 
 money for that purpose burden the property with a lien : Clack v. 
 Holland (19 Beav. 262) ; secus where they have no money in hand 
 (ib.). Again, in In re Earl of Winchilsea's Policy Trusts (39 Ch. D. 
 168) a trustee of a term for (inter alia) paying premiums on a policy 
 of assurance of which he was not trustee was not entitled to lien for 
 moneys of his own expended in paying the premiums, on the ground 
 that ■' the right of a trustee to an indemnity is confined to indemnity 
 out of his trust fund." 
 
 3. By reason of the right of a mortgagee to add to his charge any 
 money paid by him to preserve his property. 
 
 4. By subrogation or substitution ; thus a person who, at the 
 request of a trustee, has advanced money for the preservation of the 
 property is allowed to stand in his place and succeed to his right of 
 indemnity. In Gill v. Downing (17 Eq. 316) trustees had, but did 
 not use, their power of paying premiums which the mortgagees of the 
 reversion paid during the subsistence of the prior life estate. This 
 case did not fall within the third class for the reason stated by Pry, J., 
 in In re Leslie (p. 560), and tlie trustees made no express request. 
 Similar cases are referred to in the notes to Stott v. Milne (supra, p. 
 163), e.g. Todd v. Moorhouse (19 Eq. 69) (payment of calls) ; In re 
 Pumfrey (22 Ch. D. 255) (purchase money). In all these cases the 
 payers acquired a lien by subrogatiou to the trustees. 
 
 Pry, J., only referred to subrogation to the rights of a trustee; but 
 two cases have been argued on the assumption that subrogation to tlie 
 rights of a mortgagee has the same effect. Thus, in Falcke v. Scottish 
 Imperial Insurance Co. (34 Ch. D. 234), the mortgagor paid premiums 
 at the request of an alleged a^ent of the mortgagee ; but it was held 
 that he was not the mortgagee's agent for this purpose. Pry, L.J., 
 doubted, however, "whether a mere request by a mortgagee to his 
 mortgagor . . . would create a lien as against the mortgagee upon the 
 property saved by the payment " (p. 252). Compare Saunders v. 
 Dunman (7 Ch. D. 825). 
 
 In St rui t v. Tippett (62 L. T. 475) A. B. mortgaged land and a 
 policy to C. D., and assigned the land to E. P. ; C. D. threatened 
 foreclosure if E. F. did not pay the premiums ; E. F. paid the 
 premiums and claimed a lien on the policy money against A. B., but 
 without success. Chitty, J., assumed that a request from C. D. would 
 have entitled E. F. to a lieu by subrogation from the mortgagees, but 
 
LIFE INSURANCE. 251 
 
 a threat was not a request. The Court of Appeal upheld his decision 
 on slightly different grounds. 
 
 In this case, Lindley, L.J., suggested a possible addition to Justice A possible 
 
 Fry's four classes : " If an owner of onerous property agrees with me acIdit '™ to 
 
 * - j -e . t *i. I a .1, th< = se four 
 
 to indemnify me or my property from the burdens on the onerous c ] asses 
 
 property, and the owner makes default, and I or my property have to 
 
 bear those burdens, I am inclined to think that I should have as 
 
 against the owner of the onerous property a lieu on it for the money 
 
 expended by me in bearing that burden, which as between him and 
 
 me he ought to bear." 
 
 Except in the cases referred to, no lien could, according to Fry, J., These 
 arise ; but the principle of " confusion " would apply. Fry, J., classes 
 stated the principle thus in the leading case : " If I pour my gold sive _ 
 into your heap, or put my silver into your melting pot, or turn my 
 corn into your granary, I have no right to an account or any relief 
 against you, but on the contrary I have actually transferred the 
 property in what was mine to the person with whose property I have 
 mingled it.'' 
 
 Three suggestions had been made on Mr. Leslie's behalf to avert Three 
 the application of this principle. o^uled* 
 
 First, that he was in a similar position to a tenant for life, whose ; Q the lead- 
 estate, if he renews leaseholds and dies before the expiration of the ing case, 
 renewal, is entitled to a lien on the interests in remainder, propor- 1. Renewal 
 tionate to the unexpired portion of the renewed term. But this ot lease- 
 equity is sui generis and does not arise in any other circumstances. 
 Thus as a rule a tenant for life of an insurance policy will acquire no 
 lien by paying premiums : In re WaugKs Trusts (46 L. J. Ch. 629). 
 For the apportionment of liability between tenant for life and re- 
 mainderman, see la re Morley ([1895] 2 Oh. 738) (order). 
 
 Secondly, it was alleged that a lien had arisen through acquiescence 2. Acqui- 
 on the part of the real owners in expenditure by a stranger upon this esceDce - 
 property. But such acquiescence only gives rise to lien when the 
 expenditure is made by a stranger who believes he is owner, and the 
 real owner knows of the mistake. 
 
 Thirdly, it was suggested that there was salvage. In Falche v. 3. Salvage. 
 Scottish Imperial Insurance Go. (34 Ch. D. 234) it was finally decided 
 that the analogy of salvage to cases of this kind was wholly mislead- 
 ing. Indeed, Bowen, L.J. (forgetting Greer v. Young), said of salvage, 
 " No similar doctrine applies to things lost on land nor to anything 
 except ships or goods in peril at sea ; " and Fry, L.J., relegated it to 
 the other side of the Irish Channel, whence, he said, it came in 1852. 
 
 Difficult questions often arise where a creditor insures the life of Debtor and 
 his debtor. One line of cases establish the inference that he receives creditor, 
 the policy-moneys merely as mortgagee, the other that he receives 
 them as owner. 
 
 The first line of cases is represented by Courtenay v. Wright (2 
 Giff. 337), Drysdale v. Piggott (8 D. M. & G. 546), and Lea v. Hinton 
 (5 D. M. & G. 823). Their principle may be summed up thus — 
 
252 LIFE INSURANCE. 
 
 Where the relation of debtor and creditor subsists, and the true 
 construction of the instruments and the evidence of the real nature of 
 the transaction shows that the policy of assurance was effected by the 
 creditor as a security or indemnity, if the debtor directly or indirectly 
 provides money to defray the expense of that security he is, on a 
 principle of natural equity, entitled to have the security delivered up 
 to him when he pays his debts, which it was directly or indirectly at 
 his expense effected to secure. This is an application of the maxims, 
 Qui sentit onus sentire debet et commodum, and Secundum naturam 
 est commoda cujusque rei eum sequi quern sequuntur incommoda : 
 Courtenay v. Wright. But if the debtor does not directly or in- 
 directly pay the premiums he is not entitled to the policy on satis- 
 faction of the debt: Bruce v. Garden (L. B. 5 Ch. 32). 
 
 Annuity The second line of cases is represented by Gottlieb v. Cranch (4 D. 
 
 cases> M. & G. 440), Knox v. Turner (L. B. 5 Ch. 515), Preston v. Neele 
 
 (12 Ch. D. 760). In these cases there was the grant of an annuity 
 with a. right of repurchase, and the grantee effected an insurance on 
 the life of the grantor by way of security ; and the law was summed 
 up as follows : — 
 
 The mere circumstance that a purchaser of an annuity insures the 
 life on which the annuity depends, does not give to the person or 
 estate that pays the annuity an interest in the policy. In that simple 
 state of things the policy belongs merely to the person who has 
 chosen to effect it for his own protection or advantage. It often 
 happens that when an annuity is purchased the amount of the 
 annuity, or the price to be given, is fixed on the principle of obtaining 
 for the purchaser a certain amount per cent, for his purchase-money, 
 and enough also to insure on the ordinary terms the life on which the 
 annuity depends. 
 
 Payment The cases of payment by an Insurance Company of policy moneys 
 
 into Court. j nto c our t under the Trustee Belief Acts were conflicting before 
 Matthew v. Northern Assurance Co. (ft Ch. D. 80). In that case Jessel, 
 M.E., after reviewing Desborough v. Harris (5 D. M. and G. 439), In re 
 Hall (10 W. E. 37), In, re United Kingdom Life Assurance (34 Beav. 
 493), and In re Webb's Policy (2 Eq. 456), said that an Insurance 
 Company was not justified in paying policy moneys into Court under 
 these Acts, unless the moneys were held on some trust. See In re 
 Bosier's Trusts (37 L. T. 426). The proper course for the company 
 was to interplead in cases of dispute : Prudential Assurance Co. v. 
 Thomas (L. E. 3 Cli. 74). Matthew v. Northern Assurance Co. was 
 decided on the old law, before the Judicature Act, 1873, came into 
 operation. Sub-sect. 6 of sect. 25 of that Act enacts " 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," that is to say an 
 "absolute" assignment, in writing of a debt under the Judicature 
 Acts (see below) " 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 thinks fit, to call upon the 
 
LIFE INSURANCE. 253 
 
 several persons making claim thereto to interplead concerning the 
 same, or he may, if he thinks 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." It was pointed out in In re Sutton's 
 Trusts (12 Ch. D. 175) that this sub-section does not apply to assign- 
 ments hy operations of law. 
 
 In Tancred v. Delagoa Bay and East Africa Railway Co. (23 
 Q. B. D. 239), it was held that a mortgage of dehts due to the mort- 
 gagor is an assignment; and in Comfort v. .Beiis ([1891] 1 Q.B. 737) it 
 ■was held that an assignment of a legal chose in action whereby a trust 
 created in respect of the proceeds of such chose in action in favour 
 of the assignor, is an assignment within the meaning of the sub-section. 
 It is submitted that the rule in Matthew v. Northern Assurance Co. is 
 obsolete in cases of assignments of policy moneys otherwise than by 
 operation of law, and that an insurance company can always pay 
 money into Court where there is a dispute; although if the dispute 
 involves no question of difficulty such payment will be made at their 
 own cost : In re Carroll's Policy (29 L. R. Ir. 86). 
 
 The Policies of Assurance Act, 1867 (30 & 31 Vict. c. 144), antici- Policies of 
 pated to some extent as regards policies of life insurance, as 31 & 32 Assurance 
 Vict. c. 86, subsequently anticipated with regard to marine policies, ' 1867> 
 the general provisions of the Judicature Act, 1873, s. 25, sub-sect. 
 6, cited above, with regard to the assignment of choses in action. 
 Sect. 1 of this Act — which was passed " in order to avoid the necessity 
 of joining the assignor of the policy in an action against the insurance 
 office," Newman v. Newman (28 Ch. D. 680) — enacts that any person 
 or corporation entitled, by assignment or other derivative title to a 
 policy of life assurance, and possessing the right in equity to receive 
 and to give an effectual discharge to the assurance company for moneys 
 thereby assured or secured, shall be at liberty " to sue at law in the 
 name of such person or corporation to recover such moneys." 
 
 By sect. 3 no assignment made after the passing of the Act 
 (August 20, 1867) of a policy of life assurance shall confer on the 
 assignee therein named, his executors, administrators, or assigns, any 
 right to sue for the amount of such policy, or the moneys assured or 
 secured thereby, until a written notice of the date and purport of such 
 assignment shall have been given to the assurance company, and the 
 date on which such notice shall be received shall regulate the priority 
 of all claims under any assignment : and a payment bond fide made 
 in respect of any policy by any assurance company before the date on 
 which such notice shall have been received shall be as valid against 
 the assignee giving such notice as if the Act had not been passed. 
 
 By sect. 5 the assignment may be made either by indorsement or 
 by a separate instrument in the words or to the effect set forth in 
 the schedule. See Crossley v. City of Glasgow Life Assurance Co. 
 (4 Ch. D. 421) — overruled on another point in Webster v. British 
 Empire Mutual Life Assurance Co. (15 Ch. D. 169), where it 
 was held that there was no equitable assignment; and see Curtius 
 
254 LIFE INSURANCE. 
 
 v. Caledonian Fire and Life Insurance Co. (19 Ch. D. 534). An 
 agreement to assign upon request was held by Hall, V.C., not to 
 he .in assignment within the meaning of the Act : Spencer v. Clarke 
 (9 Ch. D. 137). 
 
 It was hel&in Newman v. Newman (ubi supra) that a first incum- 
 brancer who had not given the statutory notice was not to be postponed 
 to a second incumbrancer who, having had notice of the prior charge, 
 had given the office the statutory notice. The statute, the Court 
 said, was -not intended to -affect the mutual rights of persons claiming 
 the money outside the insurance office. It was intended to give a 
 simpler remedy .against an insurance office, and also to give facilities 
 to insurance offices in settling claims, by enabling tbem to recognize 
 as the first claim the claim of the person who first gave such notice as 
 required by the statute. 
 Insurable Other important enactments relative to life assurances are contained 
 
 interest. m 14 Q. eo _ jjj_ c _ 43^ w hj on avoids insurances on the life of any one 
 in whose life the insurer had not at the date of making the insurance 
 an insurable interest up to the amount of the insurance. 
 LifeAssur- Life assurances were made the subject of special legislation by three 
 ance C°™- Acts of Parliament passed in three successive years — 33 & 34 Vict. 
 pames Act. ^ 61 . 34 & 35 y ict _ c _ 58 ; 35 & 36 Vict. c. 41— which are to be cited 
 as the Life Assurance Companies Acts, 1870 to 1872. 
 
 By sect. 3 of the Act of 1870, which is to be read along with sect. 1 
 of the Act of 1871, and sect. 1 of the Act of 1872, every company 
 commencing the business of life assurance within the United Kingdom 
 is required to deposit £20,000 in the Court of Chancery, to be returned 
 as soon as its life assurance fund accumulated out of the premiums 
 shall have amounted to £40,000 : Ex parte Scottish Economic Assur- 
 ance Society (45 Ch. D. 220). 
 
 By sect. 4, which is to be read along with sect. 2 of the Act of 
 1872, the life funds are to be kept separate from the accident or other 
 funds. By subsequent sections elaborate annual and other statements 
 are required to be made by life insurance companies. Sects. 14 and 15 
 prescribe the conditions on which alone amalgamations or transfers are 
 to be permitted. And see on this subject : In re Argus Life Assur- 
 ance Co. (39 Ch. D. 571) and In re Sovereign Life Assurance Co. (42 
 Ch. D. 540). By sect. 21, passed on account of the decision in In re 
 European Life Assurance Society (L. R. 9 Eq. 122), the Court may order 
 the winding-up of any company in accordance with the Companies Act, 
 1862, on the application of one or more policy-holders or shareholders, 
 upon it being proved to the satisfaction of the Court that the company 
 is insolvent; and in determining whether or not the company is 
 insolvent, the Court shall take into account its contingent or pro- 
 spective liability under policies and annuity and other existing 
 contracts, but the Court shall not give a hearing to the petition until 
 security for costs is given, and a prima facie case established. Sect. 
 5 of the Act of 1872 provides a method for valuing annuities and 
 policies. 
 
LIFE INSURANCE. 
 
 255 
 
 Sect. 22 of the Act of 1870 enables the Court, where a company 
 is proved to he insolvent, to reduce contracts by the company upon 
 such terms and subject to such conditions as the Court thinks just, 
 in the place of making a winding-up order. See In re Great Britain 
 Mutual Life Assurance Society (20 Ch. D. 351). 
 
 A great change was introduced by sect. 7 of the Act of 1872 dealing Novation, 
 with the subject of "novation" by policy-holders, which caused so 
 much controversy in the liquidations of the Albert and European 
 Assurance Companies. See Buckley cm -Companies, 6th ed. pp. 371- 
 384. For the future, no policy-holder of a company amalgamated 
 with or transferred to another shall by payment of premiums or any 
 other acts be deemed to have abandoned any claim against his original 
 company, or to have accepted in lieu thereof the liability of the other 
 company, " unless such' abandonment and acceptance have been 
 signified by some writing signed by him or by his agent lawfully 
 authorized." 
 
 Under sect. 11 of the Married Women's Property Act, 1882 (nearly 
 identical with the M. W. P. Act, 1870, s. 10), a man may insure 
 his life for the benefit of his wife and children, so that the policy 
 moneys are not liable for his debts (unless the wife murders her 
 husband) : Cleaver v. Mutual Reserve Fund Life Assurance Association 
 ([1892] 1 Q. B. 147); and a woman has similar power to insure her 
 life for the benefit of her husband and children. (A.nd see ante, p. 102.) 
 For the stamps on policies of insurances and assignments thereof, 
 see the Stamp Act, 1891, ss. 98-100, 104, 117, 118, and Sch. 1. 
 
 A person intending to insure his life must disclose everything Contract, 
 material and must answer every question without evasion, otherwise wnen Toi<1 - 
 the contract will be set aside : see London Assurance v. Mansel (11 
 Ch. D. 363), Thomson v. Weems (9 App. Cas. 671), where the authori- 
 ties are discussed. In the former case there was no express declaration 
 that the policy should be void if the answers were untrue. Jessel, 
 M.E., decided the case as though the absence of this express declara- 
 tion did not matter. But see Wheelton v. Hardisty (8 E. and B. 232). 
 For the effect of this express declaration, compare Hambrough v. 
 Mutual Life Insurance Co. ([1895] W. N. 18). 
 
 See, on the subject of insurance generally, Brett's Commentaries, 
 2nd ed. vol. i. bk. ii. chap. v. ; Porter's Law of Insurance, 2nd ed. 
 pp. 351 et sea. 
 
256 
 
 ELECTION. 
 
 Election. 
 
 Principle.. 
 
 Summary 
 of facts. 
 
 Voidable 
 contracts 
 by infants 
 
 In re VARDON'S TRUSTS. 
 
 (31 Ch. D. 275.) 
 
 The doctrine of election is founded on a presumed 
 intention that effect shall he given to every fart of an 
 instrument, out this presumption is rebutted where the 
 instrument expresses an intention to the contrary. 
 
 A settlement had been made on the marriage of Mr. 
 Walker and Miss Vardon, then an infant, by which 
 £5000 was settled upon trust that the income should be 
 paid to her for her life for her separate use with restraint 
 upon anticipation, and she also covenanted to settle all 
 after-acquired property upon trusts the effect of which 
 was to give Mr. Walker the first life interest with an 
 ultimate trust in default of children for Mrs. Walker. 
 The question was whether she could take absolutely a 
 legacy of over £8000 afterwards bequeathed to her for 
 her separate use without compensating out of her life 
 estate in the £5000 the persons disappointed by her 
 refusal to settle the £8000. The Court of Appeal decided 
 that the lady was not put to her election. 
 
 In this case there was a settlement by an iofant not sanctioned by 
 the Court under the Infants' Settlement Act (18 & 19 Vict. c. 43), 
 and therefore voidable, since contracts for the benefit of infants and 
 (possibly) contracts passing property not being within the Infants' 
 Belief Act, 1874 (37 & 38 Vict. c. 62), Duncan v. Dixon (44 Ch. 
 D. 211), Carter v. Siller ([1892] 2 Ch. 278, S. C. nom. Edwards v. 
 Carter ([1893] A. C. 360)), citing Bullen and Leake on Pleadings (4th 
 ed. ii. 220), Ebbett's Case (L. 1!. 5 Ch. 302) (infants' shares), are only 
 voidable and not void. See Pollock on Contracts, 6th ed. pp. 63, 65. 
 
ELECTION. 
 
 257 
 
 Had the infant on coming of age been sui juris, she would have an 
 option to repudiate or ratify the entire settlement within a reasonable 
 time : Davies v. Davies (9 Eq. 468), Edwards v. Carter. This is a 
 common law option, and in construing it the Court will pay no regard 
 to the doctrine of equitable election (ib.). But being under disability 
 she could not ratify, Nicholl v. Jones (3 Eq. 696), and could be only 
 reached by election. 
 
 The old law of election applied only to the acceptance of gifts 
 coming under an instrument or instruments made by another. Thus 
 in White and Tudor's Leading Cases of Noys v. Mordaunt and Streat- 
 field v. Streatfield (6th ed. i. pp. 395, 397, anno 1706-1735) A. B. 
 gives C. D.'s property (».) to E. F., and other property (y.) to C. D. 
 If C. D. accepts y. he must reject x. ; his election to accept y. operates 
 as a forfeiture out and out of x. ; no question of compensation arises 
 in this case: In re Lord Chesham, Cavendish v. Dacre (31 Ch. D. 
 466). But if C. D. elects to keep x. he forfeits y.-pro tanto, i.e. so far 
 as is sufficient to compensate E. ¥., and a lien on y. for the compensa- 
 tion is created. 
 
 In Vardon's Trusts the voidable gift was made by the elector. 
 There were two instruments ; a valid will gave gifts which a voidable 
 deed took away. Mrs. Vardon asked the Court to split the voidable 
 deed in two, and regard its boons made by Mr. Vardon as valid, and its 
 burdens made by heiself as void. Unlike Streatfield v. Streatfield, it 
 was the voidable deed which put her to her election here. The Court 
 assumed without discussion (1) that election applied to instruments 
 made by the elector and (2) to married women. 
 
 (1) Equitable confirmation or repudiation of voidable instruments 
 — or of void or voidable terms in instruments — made by the elector is a 
 brand-new invention of equity not fifty years old, and made exclusively 
 for the benefit of married women under the old law — a breed which is 
 rapidly becoming extinct. Willoughby v. Middleton (2 J. & H. 344) 
 led the new departure (1860) (it has since been overruled), and 
 Codrington v. Codrington (see below) has been cited in its support 
 (its principle, as we shall see, was quite distinct). The assumptions in 
 Vardon's Trusts have apparently sealed the triumph of the new election. 
 This invention is said to be a logical extension of the principle that an 
 ante-nuptial (like a post-nuptial) settlement is by the husband, not by the 
 wife. But that is a fallacy ; so far as the wife's funds are settled, they 
 are settled by her, subject to a strictly personal option in the husband 
 to set the settlement aside unless he concurs or acquiesces in it. Chitty, 
 J., said in In re Eodson ([1894] 2 Ch. 426) that it was inconsistent to 
 regulate deeds by one's self on one principle, and deeds by another on 
 another principle. But under the former, the elector gives under the 
 latter he receives : the former in nine cases out of ten are mistakes of 
 pure fact, and in the tenth case valid conditions ; the latter are never 
 mistakes of fact, though they are sometimes mistakes of pure law, and 
 if construed as conditions are always conditions the voidability or 
 invalidity of which must have been present to the minds of all parties. 
 
 S 
 
 ratified at 
 common 
 law; quasi- 
 ratification 
 in equity, 
 
 not by 
 election of 
 old type, 
 
 but by 
 election of 
 the new 
 type. 
 
 Two 
 assump- 
 tions in 
 Vardon's 
 Trusts : 
 
 (1) That 
 election of 
 the new 
 type is 
 valid ; 
 
258 
 
 ELECTION. 
 
 (2) that 
 married 
 women 
 may elect. 
 
 The only 
 discussion 
 was as to 
 anticipa- 
 tion : 
 
 Election is 
 a presumed 
 intention, 
 
 Restraint 
 upon an- 
 ticipation 
 an express 
 intention ; 
 
 (2) Lord Cottenhara, Frank v. Frank (3 M. & Cr. 171), Lord 
 Cairns, Cooper v. Cooper (L. B. 7 H. L. 67), and perhaps James, L.J., 
 Tussaud v. Tussaud (9 Ch. D. 363), thought that a married woman 
 could not elect. The older cases favour this view. The cases 
 mentioned by White and Tudor (i. 433) decide (a) that the repre- 
 sentatives of a deceased wife must elect (Ardesoife v. Bennet (2 
 Dick. 463) alone carries this further) ; (V) she can elect, like an infant, 
 under the sanction of the Court after an inquiry ; (c) and that when 
 she so elects, she and not (as in the case of infants) the Court elects. 
 The recent cases on these two points will he discussed presently. 
 
 Assuming, then, that election can be utilized to confirm or repudiate 
 voidable instruments by married women, what was the effect if a 
 married woman restrained from anticipation elected to repudiate her 
 instrument? The answer was, "Such election is without effect. When 
 election is talked about by equity lawyers it means election productive 
 of forfeiture or compensation. Election which is without effect had 
 better be called by another name, say, choice, then you may say out- 
 right that she cannot elect." 
 
 The reason for this answer was that election was an obligation 
 imposed by an instrument; and if the instrument created, it could 
 cancel the obligation. " There is an obligation," said Lord Hatherley 
 in Cooper v. Cooper (L. B. 7 H. L. 53), " on him who takes a benefit 
 under a will or other instrument to give full effect to that instrument 
 under which he takes a benefit." Compare Pickersgill v. Rodger (5 
 Ch. D. 163, 166). 
 
 But this obligation was only implied; and the restraint upon 
 anticipation was an express obligation of a contrary character. 
 "The doctrine of election rests not on the particular provisions of 
 the instrument which raises the election, but on the presumption 
 of a general intention in the authors of an instrument that effect shall 
 be given to every part of it, ' the ordinary intent,' to use the words of 
 Lord Hatherley in Cooper v. Cooper, 'implied in every man who 
 affects by a legal instrument to dispose of property, that he intends 
 all that he has expressed.' This general intention is not repelled by 
 showing that the circumstances which in the event gave rise to the 
 election were not in the contemplation of the author of the instrument. 
 It may, however, be repelled by a declaration in the instrument itself 
 of a particular intention inconsistent with the presumed and general 
 intention." The authorities for this proposition were collected on 
 pp. 381 and 394 et seq. of Dillon v. Parker (1 Swan. 359), Ker v. 
 Wauchope (1 Bli. 25, 40) and Oretton v. Haward (1 Swan. 409, 413, 
 425 et seq.) 
 
 " What," asked the Court of Appeal, " is the force and effect of this 
 restraint on anticipation? It provides that nothing done or omitted 
 to be done by Mrs. Walker at any given time shall deprive her of the 
 light to receive from the trustees the next and every succeeding pay- 
 ment of the income of the fund as it becomes due. But if she be put 
 to her election, and if by her election she deprives herself of the right 
 
ELECTION. 
 
 259 
 
 to receive subsequent payments of the income until her husband and 
 children are compensated, it follows that she has by the act of election, 
 or by the default in performing her covenant, deprived herself of the 
 benefit of the income in the way of anticipation, which is the very 
 thing which the settlement declares that she cannot do." 
 
 " This settlement, therefore, in our judgment, contains a declaration 
 of a particular intention inconsistent with the doctrine of election, and 
 therefore excludes it." 
 
 The leading case was distinguished in In re WJiitwell ([1890] 
 W. N. 171), where it was provided that the restraint upon anticipation 
 should not do away with the obligation to elect, and was followed in 
 Hamilton v. Hamilton ([1892] 1 Ch. 396), the only distinction being 
 that an attempt was made to argue that the restraint against anticipa- 
 tion " during the joint lives of husband and wife " meant " during the 
 intended marriage " (compare Jones v. Westcomb (1 Eq. Cas. Abr. 245), 
 In re Aheroyd's Settlement ([1893] 3 Ch. 363)), but without success 
 (compare In re Tredwell ([1891] 2 Ch. 640)). In In re Wheatley, 
 Smith v. Spence (27 Ch. D. 606), following dicta in Smith v. Lucas 
 (18 Ch. D. 531), the same view had been taken by the Court of First 
 Instance as that embodied in the leading case. 
 
 The decision in In re Lord Chesham, Cavendish v. Dacre (31 Ch. D. 
 466) rests on a different principle. A testator gave certain chattels 
 upon trust for his two sons, and his residue to his eldest son. The 
 chattels were heirlooms which had been settled by deed upon trust 
 to go and be held with a mansion of which the eldest son was tenant 
 for life. Here there was election in a sense, but as the eldest son 
 elected to take under the will, equity could only order a forfeiture of 
 the heirlooms ; but it would not do so, as the interest of the eldest 
 son in the heirlooms was unassignable ; nor could it make any order 
 upon the trustees, for such order would have involved a breach of 
 trust. 
 
 " When he takes under the will there is nothing for him to give 
 up, for there is nothing which he can give up." Consequently it was 
 not election in the strict sense, because it could not effect forfeiture 
 or compensation. A similar principle might have been applied to 
 cases of married women electing against an instrument restraining 
 them from anticipating ; and this seems to have been Jessel's (M.R.) 
 train of thought in Smith v. Lucas. 
 
 There must, as was pointed out in Bristow v. Ward (2 Ves. Jun. 
 336), always be some free disposable property given, which can be 
 made the subject of compensation or forfeiture. 
 
 In Codrington v. Lindsay (L. E. 8 Ch. 578), (S. C. nom. Codrington 
 v. Codrington (L. R. 7 H. L. 854)), a married lady and her husband 
 assigned, inter alia, by post-nuptial settlement, reversionary personalty 
 to which the lady was entitled under an instrument dated before 31st 
 of December, 1857 ; so that the disposition by the wife was necessarily 
 void (20 & 21 Vict. c. 57). The settlement (to which she was expressed 
 to be a party, but was no more a party than the law-stationer who 
 
 therefore 
 the latter 
 prevails 
 over the 
 former. 
 The 
 
 case has 
 
 been 
 
 followed. 
 
 The prin- 
 ciple of In 
 re Lord 
 Chesham is 
 distinct ; 
 
 and Cod- 
 rington v. 
 Codrington 
 does Dot go 
 so far as 
 Vardon's 
 Trusts. 
 
260 
 
 ELECTION. 
 
 By whom 
 made. 
 
 Infants. 
 
 Married 
 women 
 under the 
 old law : 
 
 Election of 
 the old, 
 
 made the fair copy) was by her husband and father, not by her, for 
 she settled nothing. Compare Anderson v. Abbott (23 Beav. 457) ; 
 Savill v. Savill (2 Coll. 721). It was a settlement by strangers on 
 her, and purported to pass property to which she eventually became 
 entitled when divorced, i.e. sui juris. Being sui juris, she claimed it, 
 and the Court allowed her claim, but confiscated her interest in every 
 other fund comprised in the settlement so far as was necessary to 
 restore to the settlement what her election withdrew from what it 
 purported to settle. Further, not only her future, but her past (as 
 from the date of the divorce) receipts of settled income were deducted 
 from, and charged on the reversionary personalty, and the charges 
 effected thereon by her were postponed to this new charge. This case 
 was a logical extension of election of the old type ; it was not election 
 of the new type. The order, which is given L. B. 8 Ch. 593, amended 
 L. E. 7 H. L. 868, was followed by Romer, J., in Carter v. Silber ([1891] 
 3 Ch. 553, 564, 565) (overruled ([1893], A. C. 360) on another point). 
 
 The right to and duty of compensation passes to assigns (including 
 legatees, personal representatives, and next of kin), and extends to 
 the proceeds of sale of an estate : Middleton v. Windross (16 Eq. 212) ; 
 Sogers v. Jones (3 Ch. D. 688) ; Cooper v. Cooper (L. R. 7 H. L. 53). 
 But a distinction must be drawn. Thus in Cooper v. Cooper the next 
 of kin of a person whose property a testatrix purported to dispose of 
 by her will received gifts thereunder, and must elect. In Qrissell v. 
 Swinhoe (7 Eq. 291) no election arose, as the derivative title was 
 acquired after testator's death, and the person whose property testator 
 gave away did not take under the will. Compare Cooper v. Cooper 
 (L. E. 7 H. 476 ; S. C. L. R. 6 Ch. 21). 
 
 Election by a person only binds those who take through him : Ward 
 v. Baugh (4 Ves. 623) ; Fytche v. Fytche (7 Eq. 49i). 
 
 With regard to election by infants, the usual practice is to direct an 
 inquiry what would be most beneficial to the infant : Brown v. Brown 
 (2 Eq. 481). In other cases, the Court has elected for the infant 
 without a reference to Chambers : Blunt v. Lack (26 L. J. (N.S.) Ch. 
 148) ; Seton, 5th ed. p. 1343. When the persons to elect are unborn, 
 the Court elects for them after an inquiry, if it be deemed necessary. 
 See on this subject and matters connected therewith, Serrell's Equit- 
 able Doctrine of Election, p. 184 et seq. 
 
 Can a married woman, subject to the old law, elect during coverture 
 so as to affect her separate property ? Let us first take the old 
 election. Cooper v. Cooper (L. R. 7 H. L. 53) would seem to be an 
 authority that she could not, for in that case an inquiry was directed ; 
 but there infants had to elect as well, and the matter seems not to 
 have been argued. 
 
 In Codrington v. Lindsay (ubi supra) the order assumed that the 
 duty of a lady who had been married to elect arose on the termina- 
 tion of her coverture, and that only property received since that date 
 was liable to make compensation. Here, too, the matter was not 
 discussed. 
 
ELECTION. 
 
 261 
 
 The point is discussed in Smith v. Lucas (18 Ch. D. 544), where 
 Jessel, M.E., decided that as a general rule she could, but that her 
 election could not bind her estate more than her contracts could, and 
 therefore did not bind the property in question. In Vardon's Trusts 
 and In re Wheatley it was assumed that she could as a rule, but it was 
 decided that she could not in those circumstances elect. Queade's 
 Trusts (33 W. E. 816) and Willoughby v. Middleton (2 J. & H. 344) 
 are not authoritative since Vardon's Trusts ; and in Griggs v. Gibson 
 (1 Eq. 685), where there was an express conditional bequest, election 
 took place in Court (ib. 692), and the minutes declared her election to 
 be for her benefit (S. C. 14 W. E. 514). Dictx that she can elect 
 occur in Williams v. Baily (2 Eq. 731) ; In re Hodson ([1894] 2 Ch. 
 421). And she can even by an invalid deed reconvert — if that may 
 be called election : Sisson v. Giles (11 W. E. 558). 
 
 Turning to the new election, i.e. equitable ratification or repudia- and new 
 tion of a settlement as a whole — in Barrow v. Barrow (4 K. & J. 409) '^P 6- 
 (Page Wood, V.C.), bringing an action for specific performance (secus 
 with other actions, Oodrington v. Oodrington) ; in Bumaby v. Equitable 
 Reversionary Society (28 Ch.D.416), sitting still (Pearson, J.); in Wilder 
 v. Pigott (22 Ch. D. 263) (Kay, J.), Greenhillv. North British, etc., Co. 
 ([1893] 3 Ch. 474) (Stirling, J.), In re Hodson ([1894] 2 Ch. 421) 
 (Chitty, J.) — an invalid deed was sufficient to constitute confirmation. 
 Stirling, J., compared his case with Seaton v. Seaton (13 App. Cas. 
 61); yet in that case Lord Macnaghten said, "There is no question 
 here of election " (p. 80) — it was a case of common law confirmation. 
 Pearson, J., held negative evidence extending over one or two years, 
 sufficient evidence of equitable, as it would have been of common law 
 ratification. Kay, J., and Stirling, J., whose cases are inconsistent 
 with Williams v. Mayne (L. E. Ir. 1 Eq. 519) rely on Smith v. Lucas, 
 which is against them, for in Smith v. Lucas, Jessel, J., criticized the 
 validity of the confirmation from the point of view of what the married 
 woman could do at the date of election, not (as they did) from the 
 point of view of what she could do at the date of the agreement which 
 she ratified. And Chitty, J., assumes that Edwards v. Carter 
 {[1893] A. C. 360), which is a case of common law ratification pure 
 and simple, is a binding precedent in cases of equitable confirmation. 
 Finally, North, J., in Harle v. Jarman ([1895] 2 Ch. 427) discusses 
 these cases as though there were a voidable contract, " and the infant 
 may at any reasonable time after coming of age repudiate it " or con- 
 firm it; and "that is a thing that a married woman is perfectly 
 competent to do . . . and that is, as he " (Kay, J.), " says, not an 
 election." Briefly — these arguments assume that married women, 
 under the old law, confirm or repudiate their settlements in the same 
 way as men do. 
 
 It becomes, therefore, material to consider how common law ratifi- 
 cation is presumej. In Edwards v. Carter ([1893] A. C. 360) an 
 infant waited three or four years after coming of age, during which 
 period he received £1500 a year from his father under a voidable 
 
 Common 
 law rati- 
 fication. 
 
262 
 
 ELECTION. 
 
 Property 
 to which 
 applicable, 
 
 settlement made on and by him on his marriage when an infant. It 
 contained a covenant to settle after-acquired property, which the 
 infant wished to repudiate as soon as he became entitled to after- 
 acquired property. There was evidence that he did not know of 
 the existence of this covenant. The House of Lords held that (1) for 
 purposes of ratification and repudiation a settlement is one and in- 
 divisible ; and (2) that he had already ratified it by receiving benefits 
 for three or four years under it ; and (3) he could not be heard to say 
 that he was ignorant of its contents. 
 
 Of these three principles, (1) the first is also the very foundation 
 of election ; (2) as for the second, In re Jones ([1893] 2 Oh. 461) was 
 a case of a married woman restrained from anticipation, but subject 
 to a protection order, and there the not unreasonable time during which 
 she postponed confirmation or repudiation was thirty-eight years; but 
 during that time she never took a penny under the settlement. This 
 was consistent with Edwards v. Carter; but in Vardon's Trusts a 
 married woman restrained from anticipation had for no less than twenty- 
 three j'ears received benefits under the settlement which she partially 
 repudiated. The point, however, that she had already ratified the 
 settlement as a whole was not raised in the case. And (3) there are 
 other difficulties in the view. "Election" and confirmation differ in 
 many respects. In Wilson v. Thornbury (L. B. 10 Ch. 239) it was 
 decided that " election by conduct must be by a person who has 
 positive information as to his rights to the property, and with that 
 knowledge really means to give that property up " (p. 248) (contrast 
 Edwards v. Carter) ; and a person can bring an action to obtain the 
 requisite knowledge: see Douglas v. Douglas (12 Eq. 617, 637, 638); 
 and even the fact of bringing an action adverse to a settlement is not 
 considered an election against it, but election will be allowed within 
 a limited time after judgment : Codrington v. Codrington (ubi supra). 
 In spite, then, of the authorities cited, it will be best to regard the 
 common law and equitable doctrines on this subject as moving in 
 distinct spheres, between which there is no point of contact. Equitable 
 confirmation belongs to election, and to election exclusively ; common 
 law ratification is a part of the law of contract. The analogy between 
 the two is false. 
 
 The doctrine of election applies to property of every kind and to 
 interests of every description, and it is immaterial whether the donor 
 does or does not know that he has no right to dispose of the property 
 in respect of which the election has to be made : Watson's Compendium 
 of Equity, 2nd ed. pp. 177, 178, citiDg Wilson v. Lord J. Townshend 
 (2 Ves. Jun. 697) ; Craves v. Formau (cited 3 Ves. 67) ; Webb v. Lord 
 Shaftesbury (7 Ves. 480) ; Whistler v. Webster (2 Ves. Jun. 367) ; 
 Welby v. Welby (2 V. & B. 199). It arises principally in the case of 
 wills, " because deeds being generally matters of contract, the contract 
 is not to be interpreted otherwise than as the consideration which is 
 expressed requires ; " and it has been held to apply " to voluntary 
 deeds, to cases of contract for valuable consideration resting in articles, 
 
ELECTION. 
 
 263 
 
 Instru- 
 
 i ap- 
 plicable. 
 
 i wo pro- 
 
 to contracts for value completely executed by conveyance and assign- 
 ment : " per Lord Selborne, Codrington v. Lindsay (L. E. 8 Ch. 578, 
 587), where the authorities are collected, and citing Lord Bedesdale. 
 
 The doctrine also applies to the exercise of powers of appointment : 
 Whistler v. Webster (2 Ves. Jun. 367); and see Wollaston v. King ments 
 (8 Eq. 165) ; Goutts v. Acworth (L. E. 9 Eq. 519) ; White v. White ^tch 
 (22 Ch. D. 555) ; and see In re Swinburne, Swinburne v. Pitt (27 Cb. 
 D. 696) ; In re Brooksbank, Beauclerk v. James (34 Ch. D. 160). 
 
 Two separate documents if executed at the same time, or practically 
 incorporated together, may, for the purpose of raising the question of 
 election, be read together : Serrell on Election, p. 5, citing Bacon v. 
 Cosby (4 De G-. & Sm. 261); Cooke v. Briscoe (1 Dr. & War. 596). 
 
 A case sometimes confounded with election is where a testator 
 
 makes two distinct gifts of his own property, one beneficial and the visions of 
 
 other onerous, and the question is whether the donee can elect to one lnstru " 
 
 ' , -i , , ment. 
 
 accept the first and disclaim the second. 
 
 The rule, as stated in Guthrie v. Walrond (22 Ch. D. 573, 577), is Will, 
 that when two distinct legacies or gifts are made by will to one person 
 he is as a general rule entitled to take one and reject the other, but 
 that his right to do so may be rebutted if there is anything in the 
 will to show that it was the testator's intention that that option 
 should not exist. Where there is a single and undivided gift, that is 
 prima facie evidence that the gilt should be regarded as one, but even 
 in such a case the Court might discover some subtle indication of an 
 intention that the legatee should be at liberty to take part of the gift 
 and leave the rest. And see Syer v. Gladstone (30 Ch. D. 614) ; In 
 re Hotchhys, Freke v. Calmady (32 Ch. D. 408) ; compare Wollaston 
 v. King (8 Eq. 165); and if on the principle of Cooper v. Cooper 
 (supra), next of kin are on the same footing as residuary legatees : 
 Blaihloch v. Qrindle (7 Eq. 215) ; Rich v. Cockell (9 Ves. 369) ; and 
 see Serrell on Election, p. 228 et seq. 
 
 A somewhat similar question arises where a gift is made by deed, Deed, 
 and the consideration of the deed is partially invalid owing to the 
 disability of one of the parties. The parts of the deed are in such 
 cases read together, the burden being regarded as the consideration 
 for the benefit. Attempts have been made, but without success, to 
 enforce invalid burdens by means of the doctrine of election : Cahill 
 v. Cahill (8 App. Cas. 420); Beaton v. Seaton (13 App. Cas. 61); 
 Harle v. Jarman ([1895] 2 Ch. 419). It is obvious that if this 
 doctrine were maintainable any and every invalid term in a valid 
 contract under which a contractee takes a benefit might be enforced. 
 It is an anomaly, for which no reason can be assigned, that Codrington 
 v. Codrington, Smith v. Lucas, and Vardon's Trusts have been classed 
 along with Streatfield v. Streatfield instead of along with Cahill v. 
 Cahill, Seaton v. Seaton, and Harle v. Jarman. 
 
 It is pointed out in Serrell's Equitable Doctrine of Election (p. 3) Practice, 
 that, as under the Judicature Act, the Queen's Bench Division gives 
 effect to equitable principles, a defendant in an action for the recovery 
 
264 SATISFACTION. 
 
 of land in the Queen's Bench Division might raise as an equitable 
 defence the liability of the plaintiff to elect between two properties. 
 An action to compel the defendant to elect might even be commenced 
 in the Queen's Bench Division, election not being one of the matters 
 specially mentioned in sect. 34 of the Judicature Act, 1873, though 
 such an action would probably be transferred. An action for damages 
 by way of compensation in a case of election might be sued for in the 
 Queen's Bench Division. 
 
 Satisfaction. 
 
 TUSSAUD v. TUSSAUD. 
 
 (9 Ch. D. 363.) 
 
 Principle. The doctrine of satisfaction is founded on the pre- 
 
 sumption against double portions, but this presumption 
 may be rebutted whether in a deed or a will by parol 
 evidence of intention. 
 
 Summary In February, 1867, Francis Tussaud, on the marriage 
 of his daughter, Mrs. White, covenanted with the trustees 
 of her settlement that his executors or administrators 
 should within six months after his or (if she survived 
 him) his wife's death, transfer to the trustees the sum of 
 £2000 consols to be held on the trusts of the settlement, 
 which were (1) for Mrs. White's appointees, and in 
 default of appointment (2) for her for life for her separate 
 use, then (3) for her husband for life, and after the death 
 of the survivor (4) for the children, sons at twenty-one, 
 daughters at twenty-one or marriage, and in default of 
 children (5) for Mr. White absolutely. 
 
 In 1871 Francis Tussaud paid the trustees £1000, 
 which was accepted by them as satisfying his covenant 
 to the extent of a moiety. In 1873 Francis Tussaud 
 
SATISFACTION. 
 
 265 
 
 died, having by his will and codicil, both of which were 
 dated in that year, bequeathed £2800 to the trustees of 
 his will in trust for (1) Mrs. White for life for her separate 
 use without power of anticipation, and after her decease 
 (2) for such of her children as should attain twenty-one 
 in equal shares, and if there were no children who 
 attained a vested interest, the fund was to fall into the 
 residue and go to the testator's own sons. The Court of 
 Appeal decided, reversing the decision of Jessel, M.E., 
 that the provision for Mrs. White under the will and 
 codicil was not to be considered as a satisfaction for 
 Francis Tussaud's liability under the covenant in the 
 settlement. 
 
 The following definition of satisfaction given, or rather adopted, in Definition 
 the notes to Chancey's Case by "White and Tudor, 6th ed. vol. ii. p. 382, °j satisfac - 
 was cited with approval by the House of Lords, in the case of Lord 
 Chichester v. Coventry (L. E. 2 H. L. 71, 95), where the law on 
 this subject is very carefully considered. 
 
 " Satisfaction is the donation of a thing with the intention that it is 
 to be taken either wholly or in part in extinguishment of some prior 
 claim of the donee." 
 
 It arises in two classes of cases — first, when a father or person 
 filling the place of a parent makes a double provision for a child or 
 person standing towards him in a filial relation (see p. 7) ; secondly, 
 when a debtor confers by will or otherwise a pecuniary benefit on 
 his creditor. 
 
 Cases belonging to the first class occur in two ways — (1) either the Court leaDs 
 father first gives to his child by will a legacy, and then makes pro- against 
 vision for it ; or (2) the father agrees to make a provision for a child, DOrt j ons 
 and subsequently makes a gift to that child by will. 
 
 The first is called ademption, and the second is called satisfaction 
 in its stricter sense. The presumption against double portions arises 
 more easily in the case of satisfaction than of ademption. In a case 
 of ademption, where the will is first, that is a revocable instrument, 
 and the testator has an absolute power of revoking or altering any 
 gift thereby made. But where the obligation is earlier in date than 
 the will, the testator when he makes his will is under a liability 
 which he cannot revoke or avoid. He can only put an end to it by 
 payment or by making a gift with the condition, expressed or implied, 
 that the legatees shall take the gift made by the will in satisfaction 
 •of their claim under the previous obligation : per Cotton, L.J. in the 
 leading case (p. 380). 
 
266 
 
 SATISFACTION. 
 
 What is a 
 portion ? 
 
 The lead- 
 ing case. 
 
 Parol 
 
 evidence 
 
 admissible. 
 
 A second distinction is more one of language than of substance. 
 Ademption means that a gift intended by the testator is adeemed pro 
 tanto : it was decided for the first time that the ademption is pro- 
 tanto in Pym v. Lochyer (5 M. & C. 29). Satisfaction takes effect 
 through election ; and if a man elects against the will he need only 
 compensate the disappointed legatees and devisees (see last case). 
 The result is the same. 
 
 Thirdly, there is only competition between liability, not between 
 perfected gift, and devise or bequest in cases of satisfaction. But 
 this distinction is also immaterial. 
 
 A question which was discussed by Jesse], M.E., in the leading 
 case was " what is a portion ? " No one, he said, would imagine that 
 a gift of a necklace by a father to his daughter could be a portion. 
 There must be a sum of such an amount as that it would reasonably 
 be presumed to be a portion. The Court will not add up small sums 
 which a father has from time to time given his child : " nothing could 
 be more productive of misery in families than if he were to hold that 
 every member of a family must account strictly for every sum received 
 from a parent:" Taylor v. Taylor (20 Eq. 155, 158). Money for 
 education is not money for advancement or portion (ib.) ; nor is it 
 restricted to money ; hut means " something given to establish a child 
 in life," Taylor v. Taylor (20 Eq. 155), where seven different examples 
 are given. It may be realty, Clerk v. Lucy (8 Vin. Abr. 154), a com- 
 mission in the army, Norton v. Norton (3 P. W. 317, n.), shares of 
 residue, Bengough v. Walker (15 Ves. 507), In re Tickers (37 Ch. D. 
 525), payment of a gambling debt, Boyd v. Boyd (4 Eq. 305) ; and the 
 last case shows that a bequest of residue may be adeemed. Compare 
 Dawson v. Dawson (4 Eq. 504), MHnertzagen v. Walters (L. R. 7 Ch. 
 670). Further, it has been decided that such a sum is a portion 
 whether given absolutely or for life with a power of appointment, 
 Lord Chichester v. Coventry (L. R. 2 H. L. 71), or settled on herself 
 for life remainder to her children, Lady Thynne v. Earl of Qlengall 
 (2 H. L. C. 131), or with a life estate to the husband interposed : 
 Weall v. Bice (2 Russ. & My. 251). 
 
 The first point decided in the leading case was that certain evidence 
 of declarations made by the testator rebutting the presumption that 
 he intended to satisfy the covenant in the settlement by the bequest 
 in favour of Mrs. White was admissible. Parol evidence was admis- 
 sible to rebut a presumption, although not to raise a presumption, and 
 there was no distinction for this purpose between the case of a deed 
 and a will, and the Court approved of what is laid down in Taylor on 
 Evidence, 8th ed. vol. i. p. 1042. Thus in Campbell v. Campbell (1 
 Eq. 383)the draft of a will was produced. 
 
 The Couit added, " If you find no expression " in the will or settle- 
 ment, " you are driven to a presumption of law which only arises in 
 the absence of an expressed intention to give a double portion. That 
 is entirely independent of the construction of the will. When you 
 come to a presumption to imply an intention in the will, then the 
 
8 A TISFA CTION. 267 
 
 rule always is that you may admit parol evidence to rebut such pre- 
 sumption ; " but the parol evidence which was thus admitted did not, 
 in their opinion, aid the case of Mrs. White and her children. 
 
 The question accordingly turned upon the language of the instru- Intention 
 ments themselves. "What we have to consider is well expressed of the will. 
 by Lord Colonsay in the case of Lord Chichester v. Coventry 
 (L. B. 2 H. L. 98) in these words : ' But I can conceive no con- 
 sideration more important upon a question of double portions than 
 the consideration of whether the parties to be benefited by the one 
 are the same as the parties to be benefited by the other, or whether 
 the nature of the benefit conferred in the one case is the same as the 
 nature of the benefit conferred in the other.' It must he remembered 
 that slight differences between the two provisions will not be sufficient 
 to prevent the presumption from arising," such as the transposition of 
 two life estates — differences of time — one estate being with and the 
 other without restraint on anticipation. Compare Thynne v. Earl of 
 Glengall (2 H. L. C. 131); Bussell v. St. Aubyn (2 Ch. D. 398); 
 Stevenson v. Masson (17 Bq. 78). " Slight differences, however, in 
 the words of Sir John Leach, in Weall v. Rice (2 Euss. & My. 263), 
 are such ' as, in the opinion of the judge, leave the two provisions sub- 
 stantially of the same nature ; ' and he adds, ' every judge must 
 decide that question for himself.' " Under the settlement Mrs. 
 White, with the consent of the trustees, had an absolute power over 
 the fund. She had no such power under the will. Under the settle- 
 ment Mr. White took a life interest after his wife, and in certain 
 events an absolute interest. Under the will he had no interest, and 
 the fund, if no child of Mrs. White took a vested interest, went over 
 to the testator's sons. These were held by the Court of Appeal to be 
 such substantial differences between the two provisions as to rebut the 
 presumption against double portions. 
 
 It will be seen that the question which influenced the Court most 
 was that the parties were different. The only cases cited in support 
 of the argument that there might be parties to the settlement who 
 were strangers to the will, were McCarogher v. Whieldon (3 Bq. 236) 
 and Mayd v. Field (3 Ch. D. 587); also in Bethell v. Abraham 
 (3 Ch. D. 590, n.) the husband of the daughter was mentioned in the 
 will but not in the settlement: or as Jessel, M.E., put it, there was 
 " an amplification of the trust for the child." In the first two cases, 
 only the parties who took under will and settlement were put to 
 their election, and the settlement stood so far as the interest was con- 
 cerned of the party who took under the settlement but not under the 
 will. Bennett v. Houldsioorth (6 Ch. D. 671), where the parties had 
 changed by death, and Campbell v. Campbell (1 Eq. 383) were not 
 cited. Jessel, M.E., in deciding that there was satisfaction, was 
 obviously influenced by these cases. The Court of Appeal, in re- 
 versing his judgment, equally obviously disapproved of them. Com- 
 pare Cooper v. Macdonald (16 Eq. 258). 
 
 A direction in a will to pay debts may rebut the presumption A direction 
 
268 
 
 SATISFACTION. 
 
 o pay 
 debts. 
 
 Ejusdem 
 generis. 
 
 Share in 
 partner- 
 ship and 
 bond. 
 
 Gifts for a 
 
 against double portions : Paget v. Grenfell (6 Eq. 7). But in Mon- 
 tagu v. Earl of Sandwich (32 Ch. D. 525) Lord Sandwich, after 
 charging an annuity of £1000 a year in favour of his second son on 
 realty by deed, made his will, devising all his real estate, " subject 
 to the charges and incumbrances thereon," in strict settlement on his 
 first and other sons successively. He gave his second son legacies, 
 the income of which, when invested, exceeded £1000 a year. The 
 Court of Appeal disagreed considerably in their view of this case, but 
 in the result the majority cameto the conclusion that the presumption 
 against a double portion prevailed, Bowen, L.J., lamenting this " sacri- 
 fice upon the altar of authority." 
 
 In no case has the presumption of double portions been rebutted by 
 the gifts not being ejusdem generis, although that has had weight 
 along with other facts : such as that the gift was uncertain in amount 
 or contingent, Davys v. Boucher (3 Y. & C. 397) ; Bellasis v. Uthwatt 
 (1 Atk. 426) ; or where there is other crucial evidence : Jeacock v. 
 Falkener (Bro. 1 Ch. 553) ; Goodfellow v. Burchett (2 Vern. 298). 
 [Grave v. Lord Salisbury (Bro. 1 Ch. 425), was a common creditor's 
 case (6 Ves. 547) ; and Freemantle v. Banks (5 Ves. 85), and Holmes 
 v. Holmes (Bro. 1 Ch. 553) are no longer law, since Lady Thynne v. 
 Earl Glengall (supra) and Bengough v. Walker (infra).] 
 
 In In re Lawes (20 Ch. D. 81) Lawes, standing in loco parentis to 
 his reputed son, Thomas, executed a bond to secure the payment of 
 £10,000 to him four years afterwards, and shortly before the money 
 was due agreed to take him into partnership, and it was provided by 
 the articles that the capital should consist of £37,500, to be brought 
 in by Lawes, of which £19,000 should be considered as belonging to 
 Thomas. Lawes died without having paid any part of the £10,000. 
 The Court of Appeal held that the benefit under the partnership 
 articles was to be taken in satisfaction of the £10,000 due under the 
 bond ; and explained the decision of Sir W. Grant in Bengough v. 
 Walker (15 Ves. 507) as follows: — "Where a testator gives to a child 
 a beneficial lease or share of works, or any other thing, and says 
 nothing about the value, he is not to be taken to be giving it in satis- 
 faction of a pecuniary bequest, but where he does refer to the value 
 the presumption of satisfaction may arise. And when he gives it as 
 being of larger amount than the legacy, and the legatee takes it, he 
 takes it at the estimated amount, and in that case it makes no differ- 
 ence whether the testator directs the thing to be sold and gives him 
 the proceeds, or directs the thing to be taken as a specific amount. 
 In either case he shows his intention to give a definite amount." And 
 in In re Vichers (37 Ch. D. 525) North, J., denied that the legacy in 
 Bengough v. Walker was valued by the testator. 
 
 So, too, in a case of ademption gifts of stock will adeem a charge on 
 land : Leighton v. Leiyhton (18 Eq. 458). It seems to follow from that 
 case that a portion will adeem or satisfy a portion of whatever nature 
 it consists. 
 
 A gift by will for the purpose of satisfying a particular purpose 
 
SATISFACTION. 2G ( J 
 
 followed by a gift for the same purpose will be adeemed, although the particular 
 giver was not in loco parentis ; and even when the particular purpose P ur P ose - 
 is to satisfy a moral obligation : In re Pollock (28 Ch. D. 552) ; Monch 
 v. Monch (1 Ball. & B. 303); Pankhurst v. Howell (L. R. 6 Ch. 136). 
 Here, too, the purpose and not the nature of the gift is considered. 
 
 The next case was decided on the ground of the alleged portion not 
 being a portion, but it clearly belongs to the second class of cases. 
 
 In In re Lacon, Lacon v. Lacon ([1891] 2 Ch. 482), Sir E. Lacon by 
 his will made in the year 1884, gave his.shares in a partnership business 
 to his three sons equally as tenants in common. At that time his 
 eldest son Edmund was employed in the business as a manager. The 
 other two sons were not employed in the business. Subsequently 
 Edmund was admitted a partner, the testator making over to him two 
 of his shares, and Edmund relinquished his salary as manager. There 
 was no ademption. 
 
 With regard to the second head of the doctrine of satisfaction it Debt, when 
 has been established by the authorities that if a debtor bequeaths to w, c ~ y 
 his creditor a legacy equal to, or exceeding the amount of, his debt, it 
 shall be presumed, in the absence of any intimation of a contrary 
 intention, on the principle debitor non prsesumitur donare, that the 
 legacy was meant by the testator as a satisfaction of the debt. This 
 rule, however, though it has prevailed nearly two centuries, has met 
 with the censure of several eminent judges ; and the Courts have 
 inclined to lay hold of any minute circumstances whereupon to ground 
 an exception to it. Thus the presumption of satisfaction is not made 
 where the debt was not contracted till after the making of the will, 
 or where it was a bill of exchange or negotiable security, or where the 
 legacy was contingent or uncertain or not payable immediately, or of 
 residue or of a different nature from the debt, e.g. the debt being due to 
 the separate use of a married woman and the legacy payable to her 
 absolutely (see Fairer v. Park (3 Ch. D. 309), where there were 
 other minor differences), or of a specific chattel ; and see Williams on 
 Executors, 9th ed. 1162. 
 
 In In re Fletcher, Gillings v. Fletcher (38 Ch. D. 373) a testator 
 bequeathed his wife a legacy of £625. He was at that time indebted 
 to her to that exact amount. The debt was discharged in his lifetime 
 and it was held that the legacy being meant as satisfaction was 
 adeemed. 
 
 In re Fetcher is scarcely consistent with In re Horlock, Calham v. Differences 
 Smith ([1895], 1 Ch. 516), where Stirling, J., after stating that the rule of time, 
 was established early in last century, added, " No sooner was it invented 
 than learned judges of great eminence expressed their disapproval of 
 it, and invented ways to get out it." If, therefore, a creditor who 
 would be payable immediately on the testator's death is left a legacy 
 payable one month after testator's death, that is not satisfaction : 
 Clark v. Sewell (3 Atk. 96). " According to the rule of this Court, 
 a legacy that ought to be deemed a satisfaction must take place 
 immediately after the death of the testator.'' What, then, if no date 
 
270 
 
 SATISFACTION. 
 
 Direction 
 to pay 
 debts and 
 contem- 
 poraneous 
 deed. 
 
 Crichton v, 
 Crichton. 
 
 is mentioned? In that case legacies need not be paid until a yeir 
 after testator's death. Should a legacy where no time is mentioned 
 satisfy a debt ? In re Dowse (50 L. J. (Ch.) 285) and In re Eorloch 
 have answered that question in the negative. It looks as though the 
 exceptions had whittled the rule away. Bat it survives where there is 
 identity or an acceleration of payment. Thus in Atkinson v: Littlewood 
 (18 Bq. 595), where testator covenanted to pay his wife, and bequeathed 
 to his wife the same annual sum payable on the same quarter days, 
 the gift was not duplicated : and similarly in Wathen v. Smith 
 (4 Madd. 325), a debt which fell due six months after death was 
 cancelled by a bequest payable three months after death. But Wathen 
 v. Smith was disapproved of and not followed in Cole v. Willard (25 
 Beav. 568). 
 
 The following is an exception to the rule in Atkinson v. Littlewood. 
 In Horlock v. Wiggins, Wiggins v. Horlock (39 Ch. D. 142), a 
 separation deed which had been entered into between husband and 
 wife dated the 7th of September, 1844, contained a covenant by the 
 husband that his executors or administrators should on his decease 
 pay to his wife, if she survived him, £100. There was then a proviso 
 in the deed that if £6 per month was paid her for six months from his 
 death, the balance should only be paid at the end of that period. The 
 husband by his will signed the 7th ol September, directed his debts to 
 be paid, and bequeathed to his wife " £100, payable within six months 
 after my decease, £6 to be paid to her or her order until my estate is 
 finally settled, the same to be deducted from the said £100 as per 
 indenture stated in our mutual separation." The Court, emphasizing 
 the fact that the testator directed his debts to be paid, and that this 
 one debt must be fresh in his mind, decided that there was no 
 satisfaction. 
 
 It was decided in In re Huish, Bradshaw v. Huish (43 Ch. D. 260), 
 that a direction by a testator to pay debts is sufficient, without the 
 further direction to pay legacies, to exclude the presumption that a 
 legacy to a creditor equal to or exceeding the debt is a satisfaction of 
 the debt. 
 
 In Crichton v. Crichton ([1895] 2 Ch. 853) it was held (1) that 
 where a debt is due it is not satisfied even^ro tanto by a payment or 
 gift of less or of uncertain amount ; (2) that although the relationship 
 of father and son existed in the case, and the debt was incurred in 
 respect of a portion, since the debt from lather to son was incurred by 
 him qua trustee to cestui que trust, and be had not supplied the portion, 
 the rule which prevails as between creditor and debtor prevailed here. 
 Consequently there was no satisfaction. A further point was raised, 
 the decision on which has since been reversed on appeal. But the 
 main ground of decision was affirmed with the sole difference that 
 the Court of Appeal placed more reliance than North, J., upon the 
 external evidence of letters, etc. : ([1896] 1 Ch. 870). Compare 
 Johnstone v. Iiaviland ([1896] A. C. 95), a Scotch case. 
 
MAINTENANCE AND ACCUMULATION. Til 
 
 Maintenance and Accumulation. 
 
 In re HOLFORD, HOLFORD v. HOLFORD. 
 
 ([1894] 3 Ch. 30.) 
 
 (1) Where a bequest is made to a class of children Principle. 
 contingently on their attaining twenty -one, the capital 
 representing the then share of the first child who attains 
 twenty-one then vests in him, and if the class is not 
 
 liable to be increased is then payable to him. 
 
 (2) If the bequest carries the right to intermediate 
 income, the income of the then prospective share of each 
 minor is payable towards his maintenance under sect. 
 43 of the Conveyancing Act, 1881 ; but the residue is 
 accumulated, and if not applied as income under the 
 same Act, follows the destination of the capital. 
 
 (3) The second rule applies after as well as before 
 the first rule has been applied. 
 
 H. Holford devised and bequeathed his real and Summary 
 
 , .of facts. 
 
 personal estate to trustees upon trust to convert and pay 
 his debts and legacies, etc., and stand possessed of his 
 residuary trust funds upon trust to divide the same 
 equally among the children of his brother, T. Holford, 
 who should be living at his decease and attain twenty-one. 
 There was no express provision for maintenance and 
 accumulation. There were six children of the class 
 mentioned ; and the trustees of the marriage settlement 
 of the eldest child when she attained twenty-one claimed 
 
 (1) the capital, one-sixth of the residuary trust funds, and 
 
 (2) the accumulations thereon. This claim was satisfied. 
 But her trustees also claimed (3) the income of the 
 entire " residuarv trust funds " until the next child 
 
272 MAINTENANCE AND ACCUMULATION. 
 
 attained twenty-one, then of half thereof until the third 
 child attained twenty-one, and so on. The Court of 
 Appeal (affirming Chitty, J.) disallowed this claim, and 
 declared that the income of the five-sixths was payable 
 in the same way as before the eldest child attained 
 twenty-one. 
 
 Principle There is no broad principle of equity involved in the leading case ; 
 
 of the lead- b u t it se t a t rest a question which meets every lawyer in his everyday 
 mg case. p ract i oe) an( j as to w hi c h In re Jeffery ([1891] 1 Ch. 671) had intro- 
 duced confusion. In re Jeffery was overruled, and the common-sense 
 rules stated above were restored. In re Jeffery rested on a clever 
 fallacy. It was said if you specifically devise leaseholds to children 
 aetat. twenty-one, the first who attains twenty-one gets a vested share in 
 the whole, and therefore gets the whole income, of which he is divested 
 pro tanto as his brothers and sisters attain twenty-one : Furneaux 
 v. Sucker ([1879] W. N. 135). Messrs. Wolstenholme and Brinton's 
 fourth edition of the Conveyancing Acts (1891) pointed out the error 
 in this reasoning, as in Furneaux v. Sucktr it was assumed that the 
 bequest did not carry income ; consequently the Conveyancing Act did 
 not apply : In re Judkin's Trusts (25 Ch. D. 743) ; In re Dickson (29 
 Ch. D. 331). In Furneaux v. Mucker the eldest son was only entitled 
 to the whole income as against the residuary legatees or next of kin : 
 Guthrie v. Walrond (22 Ch. D. 573) ; and no statute protected them 
 against him. Here the question was as between the eldest daughter 
 and her brothers and sisters, and the Conveyancing Act stepped in 
 between them and her and directed the trustees to do what, but for 
 statute, they would have had no power to do — namely, to pay income 
 to a minor out of a fund to which he might or might not become 
 entitled, and so as to divest the rights of other people to such income 
 so applied. As for the accumulations, if the share had been vested liable 
 to be divested on attaining twenty-one, the tenant for life of the share 
 would, on attaining twenty-one, be entitled to them : In re Humphreys 
 ([1893] 3 Ch. 1); and it is presumed from the arguments in that case 
 that they would belong to the remainderman if the legacy were 
 contingent on attaining twenty-one. The rule, both as to income 
 and accumulations, independently of Statute Law, is that they are 
 regarded ns "accessions" and go along with that which they belong 
 to. The lamb and the ewe are precedents for the income and the 
 capital, as in a well-known leading case, temp. Eliz. : 
 
 " Is your gold and silver ewes and rams ? 
 I cannot tell : I make it breed as fast." 
 
 Interest on The following rules are abridged from Theobald on Wills, 4th ed. 
 legacies p, 143 e f se q_ t the accuracy of which was commended by the Court of 
 and devises. Appeal in ln re w~oodin ([1895] 2 Ch. 309). Personalty includes 
 
MAINTENANCE AND ACCUMULATION. 273 
 
 chattels real ; conversion does not apply ; there is no difference between 
 specific and residuary realty. 
 
 Gifts by will carry interest from testator's death in the absence of 
 directions to the contrary in case of: 
 
 (1) A present devise ; seats a future devise ; but see (4). 
 
 (2) A vested specific bequest ; secus a contingent specific bequest ; 
 but see (3). 
 
 (8) A segregated contingent specific bequest : In re Clements ([1894] 
 1 Ob. 665) ; In re Woodin ([1895] 2 Ch. 309), distinguishing Guthrie 
 v. Walrond (supra) and disapproving Furneaux v. Bucker (supra). 
 Segregation must be by order of the testator : appointment is an order 
 to segregate : Long v. Ovenden (16 Oh. D. 691). 
 
 (4) Contingent residuary personalty, and future residuary personalty 
 and realty blended in one gift to the same beneficiaries : In re Burton's 
 Will ([1892] 2 Ch. 38); In re Eolford, etc. 
 And any immediate legacy (5) charged on land only. 
 
 (6) Where the legatee is an infant, and (i.) maintenance is given, 
 or (ii.) the testator is in loco parentis. 
 
 (7) Where the legacy is in satisfaction of a debt (dower and jointure 
 are not debts). 
 
 And any legacy payable on a contingency or at a certain date (8) if 
 testator survives that date or contingency. 
 
 (9) In the same cases as (6 (i.)), (6 (ii.)) ; but "directions to the 
 contrary," which are discussed in In re Moody ([1895] 1 Ch. 101), 
 probably include the setting apart of another fund for maintenance. 
 
 The rate of interest is 4 per cent., but see p. 135. 
 The following rules as to how and when the class is ascertained are 
 also abridged from Theobald on Wills, 4th ed. p. 255 et seq. 
 
 I. As to Personalty. 
 
 (1) A. B. gives to C. D.'s children : only those of C. D.'s children 
 who are alive at A. B.'s death take ; in default of such children, all 
 C. D.'s children take. 
 
 (2) A. B. gives to C. D.'s children after C. D.'s death : only C. D.'s 
 children born and living at A. B.'s and bom before C. D.'s death take ; 
 in default, etc., as in (1). 
 
 (3) A. B. gives to C. D.'s children to be paid at 21 or to such as 
 attain 21 : only C. D.'s children attaining 21 before A. B.'s death take : 
 in default of such children all born and living at A. B.'s death and 
 comiug into existence before C. D.'s eldest child attains 21 take ; in 
 default, etc., as in (1) sed quaere. 
 
 (4) A. B. gives to 0. D. for life, then to C. D.'s children, to be paid 
 at 21, or to such as attain 21 : only 0. D.'s children born and living 
 at A. B.'s death and born before C. D.'s death, or before C. D.'s eldest 
 child attains 21 (whichever happens last) take. See In re Knapp's 
 Settlement ([1895] 1 Oh. 91), citing In re Emmet's Estate (13 Ch. D. 
 484) and applying these rules to deeds. 
 
 II. As to Eealty. 
 
 (1) A. B. gives to C. D.'s children : only those alive at A. B.'s 
 
 T 
 
274 
 
 MAINTENANCE AND ACCUMULATION. 
 
 Apportion- 
 ment Act. 
 
 A child 
 " in exist- 
 ence." 
 
 Other con- 
 tingencies. 
 
 death take, unless it is an executory devise, in which case all will 
 take. 
 
 (2) A. B. gives to E. F. for life, etc., then to C. D.'s children : if 
 C. D.'s children are not in existence before B. F. dies, etc., the gift if 
 a contingent remainder fails ; if an executory devise all C. D.'s children 
 will take: Bean v. .Deem ([1891] 3 Ch. 150), Blackman v. Fysh 
 ([1892] 3 Ch. 209) ; Symes v. Symes ([1896] 1 Ch. 272). 
 
 But a disposition contained in an instrument made or republished 
 after 2nd of August, 1877, which fails because it is expressed to be a 
 contingent remainder, will take effect as an executory limitation if it 
 can so take effect (40 & 41 Vict. c. 33). 
 
 It is still questionable as to how the class will be ascertained which 
 takes under a limitation expressed to take effect as a contingent 
 remainder, but taking effect (under this Act) as an executory 
 limitation. See Davidson's Concise Precedents, 16th ed. p. 661 n. b. 
 
 Since the Apportionment Act, 1870 (33 & 34 Vict c. 35) periodical 
 payments accrue from day to day. 
 
 A child en ventre sa mere is in existence : In re Burrows ([1895] 2 
 Ch. 497). 
 
 In the above examples "aged 21 " is the only contingency or date 
 of payment mentioned. The same principles apply mutatis mutandis 
 where other dates or contingencies are mentioned. But it should be 
 observed that sect. 43 of the Conveyancing Act does not apply if vesting 
 is postponed beyond twenty-one years : In re Judlcin's Trusts (25 Ch. D. 
 743); and iu these cases the rule against perpetuities is a constant 
 rock of offence : for its infringement vitiates the whole gift unless any 
 part of it is clearly severable. See In re Mervin ([1891] 3 Ch. 197), 
 followed In re Stevens ([1896] W. N. 24), In re Wise ([1896] 1 Ch. 
 281). Compare In re Watson, Cox v. Watson ([1892] W. N. 192) ; In 
 re Russell ([1895] 2 Ch. 698); In re Bence ([1891] 3 Ch. 242), etc. 
 The laws which forbid accumulations of interest, rent, etc., beyond the 
 life of the donor, and twenty-one years from his death or during the 
 minority of a child in being at his death or who would, if of full 
 age, be entitled to the interest, rents, etc. (39 & 40 Geo. III. c. 98, 
 amended 55 & 56 Vict. c. 58, as to which see In re Danson ([1895] 
 W. N. 102), Vine v. Raleigh ([1891] 2 Ch. 13), followed in In re Mason 
 ([1891] 3 Ch. 467), etc.), are less stringent, as they only avoid the 
 accumulations pro tanto. 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 275 
 
 Administration Judgments and Orders. 
 
 In re BLAKE, JONES v. BLAKE. 
 
 (29 Ch. D. 913.) 
 
 The former practice of the Court, that a person in- Principle 
 terested in the residue voas entitled as of course to a 
 full administration of the estate, is now completely 
 altered, and all applications for administration judg- 
 ments or orders are at the risk of the applicants. 
 
 A testatrix left the residue of her real and personal Summary 
 
 of facts. 
 
 ■estate to trustees upon trust to sell with all convenient 
 speed, with power to postpone the sale at their discretion 
 and hold the proceeds in trust for her children and 
 grandchildren in equal sixth shares. The trustees adver- 
 tised the residuary estate for sale by auction, and an 
 application was made on behalf of two residuary legatees, 
 one of whom was an infant, asking (inter alia) that the 
 trustees might be ordered to abstain from selling the 
 real estates out of Court, for certain accounts, and if and 
 so far as should be necessary, general administration. 
 The Court of Appeal refused to interfere with the 
 trustees' discretion as to selling the estate, directed 
 ■certain inquiries, and declined to make any general order 
 for administration. 
 
 The changes wrought in the practice as to administrations are Costs of 
 •contained in E. S. 0., 1883, Order lv., rr. 3 to 5, under which appli- improper 
 •cation may be made for the determination of questions relating to 
 •express trusts and the administration of the estates of deceased 
 .persons, by means of an originating summons, without an administra- 
 tion of the estate or trust. 
 
 adminis- 
 tration. 
 
276 ADMINISTRATION JUDGMENTS AND OR DEBS, 
 
 Effect. 
 
 Adminis- 
 tration 
 refused. 
 
 Further, Order lv., r. 10, provides that " it shall not be obligatory 
 on the Court or a judge to pronounce or make a judgment or order, 
 whether on summons or otherwise, for the administration of any- 
 trust, or of the estate of any deceased person, if the questions between 
 the parties can be properly determined without such judgment or 
 order." To which r. 10a adds that the Court or a judge may order an 
 application to stand over while trustees, executors, or administrators- 
 render to the applicant the accounts asked for, which they must do 
 under penalty of paying costs : see In re Dartnall ([1895] 1 Ch. 474), 
 In re Bosworth (58 L. J. (Ch.) 432) ; or may order administration 
 when necessary to prevent proceedings by other creditors or benefi- 
 ciaries with a proviso that no further proceedings are to be taken 
 without leave. 
 
 Order lxv., r. 1, provides that the costs of proceedings in the 
 Supreme Court, including the administration of estates and trusts,, 
 shall be in the discretion of the Court or judge. The proviso saving 
 mortgagees' and trustees' costs is discussed ante, pp. 164, 193. 
 
 The combined effect of these rules has been to revolutionize the 
 practice which concerns the administration of trusts and deceased 
 persons' estates. "Formerly, if any one interested in a residuary 
 estate instituted a suit to administer the estate, he had a right to- 
 require, and as a matter of course obtained the full decree for the 
 administration of the estate ; and the Court, even if it thought that, 
 although there were really questions which required decision, those 
 questions might be decided upon some only of the accounts and 
 inquiries which formed part of the decree, found itself fettered and 
 unable to restrict the accounts and inquiries to such only as were 
 necessary in order to work out the questions : " In re Blake (p. 916). 
 
 A minor effect to some extent anticipated by Groggan v. Allen (22 
 Ch. 101), following Bartlett v. Wood (9 W. E. 817), was described 
 thus : " If a party comes and insists that there is a question to be 
 determined, and, for the purposes of determining that question, 
 asks for an administration judgment, the Court cannot refuse the 
 judgment, unless it sees that there is no question which requires its 
 decision ; but if it turns out that what has been represented as the 
 substantial question requiring adjudication is one which was not a 
 substantial question, or that the applicant was entirely wrong in his 
 contention as to that particular question, the Court can, and ordinarily 
 ought to, make the person who gets the judgment pay the costs of all 
 the proceedings consequent upon his unnecessary or possibly vexatious 
 application to the Court." And this rule applies to executors and 
 trustees as well as to beneficiaries: In re Cabourn (46 L. T. 848). 
 
 It was laid down in the leading case that the fact that one of the 
 litigants is an infant is not sufficient reason for making an adminis- 
 tration order. 
 
 In In re Stochen, Jones v. Hawkins (38 Ch. D. 319), an express 
 direction by a testator that his trustees should bring an action for 
 administration, did not deprive the Court of its discretion to refuse to 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 277 
 
 Adminis- 
 tration 
 granted. 
 
 ing sum- 
 mons for 
 directions 
 refused. 
 
 make an order for administration, though it was intimated that weight 
 •ought to be given to such a direction. 
 
 A joint creditor cannot bring an action, In re M'Rae (25 Ch. D. 
 16), and cannot take out an originating summons, In, re Barnard, 
 Edwards v. Barnard (32 Ch. D. 447), for administering a deceased 
 partner's estate. Order lv., r. 10, qualifies Order xv., r. 1, which 
 relates to administration actions commenced by writ : In re Gyhon 
 (29 Ch. D. 834). Where an action for administration has been 
 brought, the Court will refuse to decide questions belonging to the 
 action on a summons : Borthwick v. Ransford (28 Ch. D. 79). For 
 the case of an originating summons overlapping an action commenced 
 by writ for administration, see May v. Roberts (28 Sol. J. 152). 
 
 Administration has been granted where a series of questions arose : 
 In re Wilson (28 Ch. D. 457) ; In re Dickinson, Dickinson v. Walker 
 {[1884] W. N. 199) ; and compare the judgment in In re Wilson 
 {p. 461), where Pearson, J., laid down the following rule : — " If there 
 be a simple question as to whether or not a legacy has failed, ... or 
 any isolated question of that kind, the decision of which would at 
 •once set at rest all differences between all the parties taking under the 
 will," administration is refused. 
 
 "A summons for inquiries or directions without administration is Originat 
 •exactly equivalent to the old practice of commencing an adminis- 
 tration suit, raising the particular point by the pleadings getting an 
 inquiry or direction upon that point, and then staying further pro- 
 ceedings in the suit:" per Fry, L.J., In re Medland (41 Ch. D. 476- 
 492) ; so that there is jurisdiction to determine such questions only 
 as before the existence of that rule could have been determined under 
 a judgment for the administration of an estate or execution of a trust ; 
 for instance, a dispute between legal beneficial devisees under a will 
 will not be decided : In re William, Davies, Davies v. Davies (38 Ch. 
 D. 210). 
 
 The decision in In re William, Davies was approved by the Court 
 of Appeal in In re Boyle, Royle v. Hayes (43 Ch. D. 18). In that 
 «ase defendant claimed adversely to the will ; consequently there was 
 no jurisdiction (compare In re Gladstone ([1888] W. N. 185) as to 
 ■deeds) ; but she waived this objection, and the question raised by 
 plaintiff was decided. 
 
 Questions arising on an intestacy between two claimants to real 
 property : Hope v. Hope ([1892] 2 Ch. 336) ; the setting aside of a 
 release : In re Ellis (59 L. T. 924), but see In re Garnett, Gandy 
 v. Macauliy (50 L. T. 172) ; the refunding of assets already dis- 
 tributed : In re Warren ([1884] W. N. 112), — are questions which 
 will not be decided under Order lv., r. 3. 
 
 Questions involving breach of trust or wilful default, probably 
 ■cannot be raised except by consent : In re Neil (62 L. T. 649) ; In re 
 Hengler ([1893] W. N. 37); although they can be raised in an 
 administration action if pleaded, In re Symons, Luke v. Tonkin (21 
 Ch. D. 757) ; Edmonds v. Rolinson (29 Ch. D. 170, 175) ; Dowse v. 
 
278 ADMINISTRATION JUDGMENTS AND OEDEES. 
 
 Origi- 
 nating 
 summons 
 for 
 
 directions 
 granted. 
 
 Title of 
 action. 
 
 Parties. 
 
 Absent 
 parties. 
 
 Conflict 
 of law. 
 
 Gorton ([1891] A. C. 190, 202), or, where there are no pleadings, if 
 alleged on the affidavits : Barber v. Mackrell (12 Ch. D. 534). 
 
 A disputed debt, In re Powers (30 Ch. D. 291), or claim, whether 
 to real or to personal property ; In re Lashmar ([1891] 1 Ch. D. 258), 
 In re Hargreaves (43 Ch. D. 401), In re Groom ([1891] 1 Ch. 695) ; 
 a breach of covenant : In re Parkin ([1892] 3 Ch. 510) ; the priority 
 of creditors: In re Jones (38 W. E. 90); equity to a settlement: In 
 re Briant (39 Ch. D. 471) ; right to possession by equitable tenant for 
 life: In re Newen ([1894] 2 Cb. 297), In re Bagot's Settlement 
 ([1894] 1 Ch. 177) ; repairs and investments by trustees : Conway v. 
 Fenton (40 Ch. D. 512), In re Medland (41 Ch. D. 476),— have been 
 so decided where the facts were not in dispute, as iu In re Giles (43 
 Ch. D. 391) (priority of mortgages). New trustees can be similarly 
 appointed, arid vesting orders made UDder Order lv., r. 13a. 
 
 The writ or summons and the pleadings in administration actions 
 ought to be entitled "In the matter of the estate of A. B., deceased. 
 Between C. D., plaintiffs, and E. F., defendants." 
 
 An originating summons under Order lv., r. 3, can be taken out by 
 (1) any executor, administrator, or trustee, or by any (2) creditor, 
 beneficiary, next of kin or heir, or his or their assigns. If taken out 
 by (2), the executors, administrators, or trustees alone are served in 
 the first instance ; if by (1), see Order lv., r. 5. 
 
 When an action or summons is for the administration of personal 
 estate only, a creditor may sue on behalf of himself; but where it is 
 for the administration of real and personal estate, and there is no 
 devise of real estate to trustees with power to sell, a plaintiff must 
 sue " on behalf of himself and all other the creditors " accordingly : 
 In re Vincent, Parham v. Vincent (26 W. B. 94) ; In re Boyle (5 
 Ch. D. 540). 
 
 In an action for account against trustees alleging breaches of trust, 
 the representatives of deceased trustees need not be made parties, 
 but may be added under Order xvi., rr. 11, 48: In re Harrison, 
 Smith v. Allen ([1891] 2 Ch. 349). 
 
 The practice of the Court with regard to binding absent parties 
 in cases where under Order xvi., r. 32 et seq., a judgment or order for 
 administration or execution of trusts is obtained without serving 
 some of the parties interested, was stated thus in May v. Newton (34 
 Ch. D. 347) : " Persons interested in the property which is being 
 administered and whose rights or interests may be affected by aD 
 order directing accounts or inquiries are not bound — at any rate when 
 they ought to be served with notice of such order — unless they are 
 so served or unless a representation order is made. If service upon 
 them is dispensed with, or if under Order xvi., r. 46, the Court 
 proceeds in the absence of any one representing them, they are not 
 bound." See In re Davies (64 L. T. 824), In re Foster (45 Ch. D. 
 630), In re Bake ([1895] W. N. 116). 
 
 Foreign creditors are entitled to dividends pari passu with English 
 creditors in the administration of the English estate of a deceased 
 
ADMINISTRATION JUDGMENTS AND ORDERS. 279 
 
 person domiciled abroad: In re Klcebe, Kannreuther v. Geiselbrecht 
 (28 Ch. D. 175). Tbe debts should be proved in EDgland : In. re 
 Boyse (15 Ch. D. 591) ; but if a debt in respect of foreign realty- 
 is concerned action should be brought in the forum rei sitce, and the 
 Court will acknowledge a claim so established : Batthyany v. Walford 
 (33 Ch. D. 624 ; 36 Ch. 1). 269). 
 
 The principle upon which foreign judgments are enforceable in 
 English Courts are discussed in Roussillon v. Roussillon (14 Ch. D. 
 351, 370 et seq.). 
 
 In this case Fry, J., stated the rules established by case law as 
 follows : — " The Courts of this country consider the defendant bound (1) 
 where he is a subject of the foreign country in which judgment has been 
 obtained ; (2) where he was resident in the foreign country when the 
 action began ; (3) where the defendant in the character of plaintiff has 
 selected the forum in which he is afterwards sued ; (4) where he has 
 voluntarily appeared ; (5) where he has contracted to submit himself 
 to the forum in which the judgment was obtained ; (6) and possibly 
 where the defendant has real estate within the foreign jurisdiction in 
 respect of which the cause of action arose whilst he was within that 
 jurisdiction." 
 
 Summonses under Order lv., r. 3, for obtaining judgment on the Judge in 
 construction of a document or on a point of law, orders for general tjtlambers ' 
 administration or for execution of a trust, or for accounts and inquiries 
 relating to trust property or a deceased person's property, or for the 
 appointment of provisional liquidators and new trustees, or for substi- 
 tuted service or service out of the jurisdiction, or for vesting orders, 
 come before the judge in person (Order lv., rr. 15, 15a). 
 
 By Order lv., r. 2 (16), orders made on further consideration for 
 the distribution of an insolvent estate or of the estate of an intestate, 
 or for the distribution of a fund among creditors or debenture holders, 
 are to be made in Chambers ; but a plaintiff will not be disallowed his 
 costs where the distribution of the estate gives rise to questions of 
 difficulty : In re Barber, Burgess v. Vinnicombe (31 Ch. D. 665). 
 
 An originating summons is defined by R. S. C, 1883, Order lxxi., Appeals. 
 r. 1a, as " every summons other than a summons in a pending cause 
 or matter." Although not an " action " for purposes of third party 
 procedure, In re Wilson (45 Ch. D. 266 ; Order xvi., r. 48), nor for 
 purposes of service out of the jurisdiction, In re Busfield (32 Ch. D. 
 123; Order xi.), an originating summons under Order lv., r. 3 (and 
 also under rr. 5a and 9b, and under Order liv. A.), but not under 
 Order liv., r. 4f) is an " action " for purposes of appeals which can 
 be made at any time within three months : In re Fawsitt, Galland v. 
 Burton (30 Ch. D. 231 ; Order lviii., r. 15). Orders on summonses 
 in administration actions are appealable within fourteen days ; fresh 
 evidence cannot be given: In re Compton, Norton v. Compton (27 
 Ch. D. 392). If the order is made in Court the date runs from the 
 refusal or perfecting of the order ; if made in Chambers, from the 
 refusal or pronouncing or receipt of notice of the order. Leave may 
 
280 ADMINISTRATION JUDGMENTS AND ORDERS. 
 
 be given to extend the time. Appeal lies from a judge in Chambers 
 if he within fourteen days gives leave to appeal on motion made in 
 Court, In re Giles (43 Ch. D. 391), or certifies that he requires no 
 further argument — in each case counsel should have argued the case : 
 In re Somerville (56 L. T. 424) ; or by leave of the Court of Appeal : 
 In re Giles, Strong v. Carlyle Press ([1893] 1 Ch. 268). 
 Costs. The plaintiff in a legatee's administration action is entitled to his 
 
 costs between solicitor and client, where the estate is insufficient for 
 the payment of legacies in full, but otherwise solvent : In re Harvey, 
 Wright v. Woods (26 Ch. D. 179); In re Wilkins, Wilhins v. 
 Rotherham (27 Ch. D. 703). In a creditor's administration action 
 plaintiff or the person having conduct of the action will be similarly 
 entitled although the estate is insolvent : Richardson v. Richardson 
 (14 Ch. D. 611) ; In re Pearce (56 L. T. 228). 
 
 In In re Vowles : O'Donoghue v. Vowles (32 Ch. D. 243), a sole 
 executor who became bankrupt after judgment was a debtor to the 
 estate, and it was held, following In re Basham : Sannay v. Basham 
 (23 Ch. D. 195), that he must be allowed his costs subsequent to 
 the bankruptcy, but his prior costs must be set off against his debt 
 to the estate. In In re Griffiths, Griffiths v. Lewis (26 Ch. D. 465), 
 the action was against the executor of a defaulting executor whose 
 estate was insolvent, and it was held that as he was before the Court 
 in a double capacity he was entitled to the costs of taking the 
 accounts of the original testator's estate and half the rest of the costs 
 of the action out of the same estate. And see McEwan v. Crombie 
 (25 Ch. D. 175) for bankrupt trustees. These rules will probably 
 still prevail; but see, as to costs in administration action, ante, p. 
 163 ; and Brown v. Burdett (37 Ch. D. 207 ; 40 Ch. D. 244), as to 
 costs where the order was made in the administration action before 
 1883. 
 
 Where real and personal estate is administered, see ante, p. 239. 
 
THE VENDOR AND PURCHASER ACT, 1874. 281 
 
 Tlie Vendor and Purchaser Act, 1874 
 (37 # 38 Vict. c. 78). 
 
 In re HARGREAVES and THOMPSON'S 
 CONTRACT. 
 
 (32 Ch. D. 454.) 
 
 The Court has jurisdiction on a summons under the Principle. 
 9th section of the Vendor and Purchaser Act, 1874, 
 not only to decide all questions arising out of the 
 contract {except such as affect the existence or validity 
 of the contract itself), but also to make any order that 
 would be just as the natural consequence of its decision. 
 
 On a summons under this section the Court was of Summary 
 
 of facts. 
 
 opinion that the minerals under a part of the property 
 agreed to be sold belonged to the lord of the manor, and 
 made a declaration that the vendors had not shown a 
 good title, and ordered the deposit to be returned. A 
 further question arose whether the Court had jurisdiction 
 on the summons to order the return of the deposit with 
 interest thereon at 4 per cent., and the purchaser's costs 
 of investigation of the title, and the Court of Appeal 
 decided both these points in the purchaser's favour. 
 
 A new and convenient mode of settling a variety of questions Vendor and 
 arising with reference to the purchase of land which would under the Purchaser 
 old law have necessitated the institution of a suit for specific perform- c q ' 
 ance was provided by this section. The section provides that a 
 vendor or purchaser of real or leasehold estate in England, or their 
 representatives respectively, may at any time or times, and from time 
 to time, apply in a summary way to a judge of the Chancery Division 
 of the High Court in Chambers in respect of any requisitions or objec- 
 tions or any claim for compensation or aoy other question arising out 
 of or connected with the contract, not being a question affecting the 
 
282 THE VENDOR AND PURCHASER ACT, 1874. 
 
 existence or validity of the contract, and the judge shall make such 
 order upon the application as to him shall appear just, and shall order 
 how and by whom all or any of the costs of and incident to the 
 application shall he borne and paid. " The object of the Legislature," 
 said Bacon, V.C., in Tliompson v. Ringer (44 L. T. N.S. 507), " in 
 passing the Act, was to diminish frivolous suits, and afford a more 
 cheap and speedy tribunal for determining questions between vendor 
 and purchaser." 
 
 In In re Burroughs, Lynn and Sexton (5 Ch. D. 601), the vendor 
 took out a summons under the 9th section of the Vendor and Pur- 
 chaser Act, 1874, asking for a declaration that a good title had been 
 shown, and that the vendors were entitled to have the contract 
 specifically performed, and that the purchasers might be ordered 
 specifically to perform the same. The Court of Appeal held that in 
 proceedings under the 9th section of the Vendor and Purchaser Act T 
 1874, the parties are in exactly the same position, and with all the 
 same rights as if a reference had been made as to title in a judgment 
 for specific performance ; that they were therefore at liberty to pro- 
 duce evidence by affidavit with the cross-examination thereon. The 
 statement of the law contained in In re Burroughs, Lynn and Sexton 
 (uhi supra), would seem, however, to be somewhat narrowed by the 
 judgment of the Court of Appeal in the leading case : "Although 
 the Court is not in the position in which it would be if it had 
 the litigants before it in an action properly brought according to the 
 established practice of the Court, still there is authority given us 
 not only to decide the questions asked, but to make an order which 
 would be just, as the natural consequence of what we have decided. 
 Object of The object of the Legislature was to enable either vendor or purchaser 
 the Legis- to obtain the decision of the Court upon some isolated point (see 
 11 " ' e ' ante, p. 277) instead of being compelled to have recourse to the whole 
 
 machinery which would be put in motion by an action or suit for 
 specific performance." 
 Practice. Th. e practice is to take out a summons, which is to be intituled in 
 
 the matter of the contract and in the matter of the Vendor and 
 Purchaser Act, 1874 (see Annual Practice, 1896, p. 1263), and it is not 
 unusual for the parties to agree upon a short written statement of 
 facts, which is signed by the solicitor for the parties, and a copy of 
 which is left at Chambers either before or after the return of the 
 summons : Daniell's Chancery Practice, 6th ed. p. 1382 ; and see 
 Daniell's Chancery Forms, 4th ed. by C. Burney, p. 654, where the 
 practice in the Chambers of Chitty, J., is stated. The summons may 
 be heard in Chambers, or, as is the more usual practice, adjourned 
 into Court. In In re Coleman and Jarrom (4 Ch. D. 165) Jessel, 
 M.R., delivered judgment in open Court, though the question had 
 been argued in Chambers. 
 
 In In re Ebsworth and Tidy's Contract (42 Ch. D. 23), In te 
 Bryant and Barningham's Contract (44 Ch. D. 218), and Pearl Life 
 Assurance Co. v. Buttenshaiu ([1893] W. N. 123), an order was made 
 
THE VENDOR AND PURCHASER AGT, 1874. 283 
 
 similar to that in the leading case. In In re Yeilding and Westbrook 
 (31 Ch. D. 344) and In re New Land, etc., Association and Gray 
 ([1892] 2 Ch. 138) all these costs were charged on the estate. On the 
 other hand, if the deposit is paid in pursuance of a contract which is 
 binding in law, although equity will not order specific performance 
 on the ground that some hardship is involved — as, for instance, that 
 the purchaser after accepting the title discovers that it is bad — there 
 is no jurisdiction to order a return of deposit on a vendor and pur- 
 chaser summons ; but liberty may be given to bring a separate action 
 at law: In re Davis and Cavey (40 Ob. D. 601); In re Scott and 
 Alvarez's Contract ([1895] 2 Ch. 603). 
 
 Thetimefor appealing is fourteen days from the date of simple refusal, 
 or from the date of perfecting the order, or (if in Chambers) from the 
 date of refusal or when the order was pronounced or when the appel- 
 lant first had notice thereof: Order lviii., r. 15 ; In re Helsby ([1894] 
 1 Q. B. 742) ; and see In re Clay and Tetley (16 Ch. D. 3). 
 
 Service of a summons out of the jurisdiction is not permissible under 
 this Act : In re Busfield, Whaley v. Busfield (32 Ch. D. 123, 132) ; 
 compare In re La Compagnie Generate, etc. ([1891] 3 Ch. 451). 
 
 The following are some of the questions which have been determined 
 under sect. 9 : — 
 
 Whether conditions of sale are misleading : In re Marsh and Earl 
 Granville (24 Ch. D. 11) ; In re Davies and Cavey (supra") ; In re 
 White and Smith's Contract ([1896] 1 Ch. 637). As to whether 
 conditions are misleading, but not as to whether they are fraudulent : 
 In re Sandbach and Edmondson's Contract ([1891] 1 Ch. 99). 
 
 As to vendor's right to interest : In re Hetling and Merton's Contract 
 ([1893] 3 Ch. 269) ; to rescission : In re Terry and White's Contract 
 (32 Ch. D. 14) ; In re Jackson and Woodbum's Contract (37 Ch. D. 
 44); after an adverse judgment in a summons : In re Arbib and Class's 
 Contract ([1891] 1 Ch. 601). 
 
 As to exercise of a power of sale : by administrator with will 
 annexed : In re Clay and Tetley (16 Ch. D. 3) ; by trustees : In re 
 Wright's Trustees and Marshall (28 Ch. D. 93) ; as to time when it 
 may be exercised, by executors selling leaseholds : In re Whistler (35 
 Ch. D. 561); In re Venn and Furze's Contract ([1894] 2 Ch. 101); 
 or realty for debts: In re Tanqueray-Willaume and Landau (20 
 Ch. D. 465). 
 
 As to whether consents are necessary : Finnis to Forbes (24 Ch. D. 
 587) (Charity Commissioners) ; In re Earle and Webster's Contract 
 (24 Ch. D. 144) ; Tweedie v. Miles (27 Ch. D. 315) (beneficiaries) ; 
 In re Bedingfleld and Herring's Contract ([1893] 2 Ch. 332) (bank- 
 rupt). 
 
 As to what are usual covenants in a lease, and as to whether the 
 agreement for a lease specified a date for its commencement : In re 
 Lander and Bagley's Contract ([1892] 3 Ch. 41). 
 
 As to the validity of an appointment of a trustee under sect. 31 of 
 the Conveyancing Act, 1881, in the place of a trustee who had been 
 
 Questions 
 determined 
 under the 
 section. 
 
284 THE VENDOR AND PURCHASER ACT, 1874. 
 
 Interest on 
 •deposit. 
 
 Validity of 
 contract 
 may not be 
 impugned. 
 
 abroad for more than twelve months : In re Coates to Parsons (34 
 Ch. D. 370). 
 
 In the leading case a question arose as to the time from which 
 interest ought to be paid on the deposit. On this point the judgment 
 of the Court of Appeal was as follows : — " I think interest ought to be 
 given from the day when the deposit was paid, on this ground, that at 
 that time the vendors tried to sell what they had no title to. There- 
 fore from the very time when this deposit was made the vendors were 
 in the wrong. It is different from a case where, in consequence of 
 delay or otherwise, the purchaser may have had a right to say the 
 contract is at an end and he will not complete. Then it may be that 
 the deposit would only be wrongfully held from the time when the 
 purchaser, having a right so to do, • had declared that he would be 
 no longer bound by the bargain. But here from the very first the 
 vendors were wrong in purporting to sell that which they had not, 
 namely, the minerals as well as the surface." 
 
 It will be observed that questions affecting the existence of the 
 contract are specially excepted from the jurisdiction on a summons 
 under sect. 9. Accordingly, when the right to recover the deposit 
 depends upon the determination of a question which affects the 
 validity of the contract, an order for the return of the deposit cannot 
 be made on summons : In re Davis and Cavey (supra), nor may 
 questions of fraud be raised : In re Sandbach and Edmondson's Contract 
 (supra). Repayment of money paid under mistake will not be ordered 
 except where objections to the jurisdiction are waived : In re Young 
 and Harston's Contract (31 Ch. D. 168-171). Damages for vendor's 
 delay are not recoverable under this section : In re Wilson and Stevens 
 Contract ([1894] 3 Ch. 546). Rights of a third party to receive 
 purchase-money cannot be decided under a summons under this 
 section ; but the summons must be amended and made into an 
 originating summons under K. S. C, Order lv., r. 3 : In re Tippett 
 and Newbould's Contract (37 Ch. D. 444). 
 
SPECIFIC PERFORMANCE. 285 
 
 Specific Performance. 
 
 ROSSITER v. MILLER. 
 
 (3 App. Cas. 1124.) 
 
 Where a complete contract can he collected from a Principle-. 
 correspondence "between the parties, the Court will grant 
 specific performance, although it was agreed that the 
 terms should be embodied in a formal contract, unless 
 there was a condition suspending the final assent until 
 the execution of the formal contract. 
 
 Eossiter and others were the proprietors of certain Summary 
 
 or Tjiofcs 
 
 land, and authorized White, a land agent, to dispose of 
 it. The land was laid out in lots, and a plan made, with 
 conditions of sale printed on it. One of these conditions 
 set out the price of each lot, and another required that 
 a purchaser should, on completion, execute a deed of 
 covenant embodying the conditions. Miller verbally 
 offered to purchase some of the lots. White informed 
 him that he must purchase subject to the conditions 
 stated on the plan, and promised to lay his offer before 
 " the proprietors." Shortly afterwards White wrote to 
 Miller stating that " the proprietors " had accepted his 
 offer subject to the conditions printed on the plan, that 
 " it was taken into consideration by them in reducing 
 the published price that you intended building at once," 
 and that he had requested their solicitors to forward an 
 agreement. Miller wrote back that he would not be 
 bound to build at any given time, and therefore "the 
 offer had better be reconsidered, unless you are prepared 
 to leave me at liberty to do as I think best." White 
 
286 
 
 SPECIFIC PERFORMANCE. 
 
 wrote that his former letter was "not intended to convey 
 a conditional acceptance of your offer therein defined. 
 ... In your own words, you are at liberty to do as you 
 may think best." Then the vendors' solicitor forwarded 
 the formal agreement, which Miller returned unsigned 
 and refused to complete. Held, by the House of Lords, 
 that there was a completed contract between the parties 
 which Miller was bound specifically to perform. 
 
 Principle 
 of the 
 leading 
 case. 
 
 The parties 
 and sub- 
 ject-matter 
 must be 
 mentioned 
 so as to be 
 capable of 
 identifi- 
 cation. 
 
 In this case the House of Lords, in reversing the decision of the 
 Court of Appeal, and restoring the decision of Jessel, M.E., proceeded 
 on a principle of law which was stated by Lord Hatherley as follows : — 
 " If you can find the true and important ingredients of an agreement 
 in that which has taken place between two parties in the course of a 
 correspondence, then, although the correspondence may not set forth, 
 in a form which a solicitor would adopt if he were instructed to draw 
 an agreement in writing, that which is the agreement between the 
 parties, yet, if the parties to the agreement, the thiog to be sold, the 
 price to be paid, and all those matters, be clearly and distinctly stated, 
 although only by letter, an acceptance clearly by letter will not the 
 less constitute an agreement in the full sense between the parties, 
 merely because that letter may say, ' We will have this agreement 
 put in due form by a solicitor ' " (p. 1143). 
 
 Lord Blackburn declared the law to be that, quite independently of 
 sect. 4 of the Statute of Frauds (see Note), there must be a com- 
 plete agreement, " if not there is no contract, so long as the parties 
 are only in negotiation ; even though they have agreed on all the 
 cardinal points, either party may retract. But the mere fact that the 
 parties have expressly stipulated that there shall afterwards be a formal 
 agreement prepared embodying the terms which shall be signed by 
 the parties, does not by itself show that they continue merely in 
 negotiation. It is a matter to be taken into account in construing 
 the evidence, and determining whether the parties have really come 
 to a final agreement or not " (p. 1151). 
 
 In the leading case almost every question of interest as to what is 
 a " final agreement," clearly and distinctly stated " in writing, was 
 raised. The mention of " the proprietors " was sufficiently definite : 
 because " id certum est quod certum reddi potest." " If I enter into a 
 contract to sell Blackacre on behalf of the owner, there is a statement 
 of fact as to which there can be perfect certainty : " per Lord Cairns, 
 p. 1141. Compare Catling v. King (5 Ch. D. 660) (" trustee selling 
 under a trust for sale ") ; Commins v. Scott (20 Eq. 11) (" company ") ; 
 Hood v. Lord Barrington (6 Eq. 218) (" executor of A. B."). Con- 
 trast Jarrett v. Hunter (34 Ch. 182) ; Potter v. Duffield (18 Eq. 4) 
 
SPECIFIC PERFORMANCE. 
 
 287 
 
 (" vendor ") ; Coombs v. Wilkes ([1891] 3 Oh. 77) (" landlord "). Simi- 
 larly if there is a contract to buy " my property," sold by auction on 
 such and such a day, at such and such a place : Shardlow v. Cotterell 
 {20 Ch. D. 90) ; similarly, if a date for performance, though not 
 mentioned, can be gathered from the terms of an executory agree-, 
 ment for a lease : but see In re Lander and Bagley's Contract 
 {[1892] 3 Ch.41); Marshall v. Berridge (19 Ch. D. 233); similarly, 
 if the price is to be settled by a valuer already appointed, all 
 these descriptions are sufficiently precise for the contract to be 
 specifically enforced: Smith v. Peters (20 Eq. 511); Richardson v. 
 Smith (L. R. 5 Ch. 648). AgaiD, parties often " enter into a negoti- 
 ation, meaning that each party is to reserve to himself the right to 
 retire from the contract if, on looking at the formal contract, he finds 
 that though it may represent what he said, it does not represent what 
 be meant to say : " per Lord Blackburn, p. 1152. This is the effect 
 when the acceptance, Winn v. Bull (7 Ch. D. 29) or offer, Lloyd v. 
 Nowell ([1895] 2 Ch. 744), is made "subject to the preparation and 
 approval " or " completion " " of a formal contract." But " the 
 mere reference to a future contract is not enough to negative the 
 existence of a present one : " per Fry, J., Bonneivell v. Jenkins 
 (8 Ch. D. 70) ; and the leading case came within the latter principle. 
 Again, agreements to buy and sell are often mere sketches or outlines ; 
 and the question arises, " Was this an acceptance only of a cardinal 
 point," or of a complete offer, " describing it by reference to its most 
 material term," e.g. its price ? Bonneivell v. Jenkins (ubi supra). 
 This point was raised in the leading case by the fact that a new con- 
 dition was apparently introduced in the first and refused in the second 
 letter. It had already been decided that if the acceptance is accom- 
 panied by a counter offer of new terms that means at best that the 
 parties have as yet only agreed to the most material terms of an 
 agreement : Crossley v. May cock (18 Eq. 180), with which Jones v. 
 Daniel ([1894] 2 Ch. 332) is a, precise parallel. These cases differ 
 from the leading case in two ways : if a new condition was put in to 
 the first letter, it was a condition for the exclusive benefit of the 
 vendor, and the vendor waived it in his third letter. Sawksley v. 
 Outram ([1892] 3 Ch. 359), where the new condition was a restrictive 
 •covenant, was decided on this ground. But, after all, it was not a new 
 condition ; because where there is a contract by letters, technical 
 words must not be pressed, and all the letters must be read together, 
 and the first letter, looked at in the light of the third letter, expressed 
 only a suggestion, not a condition. These are the two principles of 
 construction which the Court always adopts in construing a contract 
 by correspondence, and the following are cases in which they were 
 illustrated. 
 
 In Hussey v. Home-Payne (4 App. Cas. 311) the acceptance had 
 been " subject to the title being approved by our solicitor ; " but that 
 might mean no more than the liberty which every purchaser impliedly 
 reserves to himself of breaking off the contract if the vendor breaks 
 
 The letters 
 must not 
 be meant 
 as mere 
 negotia- 
 tions. 
 
 The con- 
 tract, and 
 not merely 
 terms of 
 it, must be 
 accepted. 
 
 Principles 
 on which 
 letters are 
 construed. 
 
288 SPECIFIC PERFORMANCE. 
 
 the contract by not making a good title. There is no magic in the 
 word "subject." The Court of Appeal had construed these words as- 
 a condition ; but Lord Cairns, L.C., pointed out that they would, if so 
 construed, imply that the vendor was free, but the purchaser bound - r 
 and this was a palpable absurdity ; and he preferred to construe them 
 as a truism, instead ; but see Hudson v. Buck (7 Ch. D. 683). 
 
 Not but what there was an Achilles' heel in the contract. A. B. had 
 offered to sell land for such and such a price ; C. D. accepted, subject to- 
 the condition referred to. If the matter had ended here, the contract 
 might have been regarded as complete : per Lord Cairns, L.C., p. 317. 
 But the offer and acceptance were contained in letters ; and C. D. went 
 on in subsequent letters to demand payment by instalments, A. B.'s 
 solicitor payment by deposit, and the balance on completion. 
 
 It looked up to this point (as Malins, V.C., held) as though C. D. 
 were trying to repudiate the agreement or add a term to it. But it, 
 was not so ;' for A. B. afterwards wrote direct to C. D. that she had 
 instructed her solicitor to allow payment by instalments. It was held 
 that this last letter threw a back-light upon the previous letters, and 
 precluded the supposition that the parties were ad idem after the 
 first two letters. 
 
 Lord Selborne, in delivering judgment, adhered to his observations 
 in Jervis v. Berridge (L. B. 8 Ch. 351, 360), that the Statute of Frauds 
 is " a weapon of defence, not offence," and " does not make any signed 
 instrument a valid contract by reason of the signature, if it is not such 
 according to the good faith and real intention of the parties," which 
 must be gathered from the entire series of letters. And Lord Cairns, 
 L.C., stated the law thus : " It is one of the first principles applicable 
 to a case of the kind, that where you have to find your contract, 
 or your note or memorandum of the terms of the contract in letters, 
 you must take into consideration the whole of the correspondence 
 which has passed. You must not at one particular time draw a line 
 and say, ' We will look at the letters up to this point and find in them 
 a contract or not, but we will look at nothing beyond.' In order 
 fairly to estimate what was arranged and agreed, if anything was- 
 agreed between the parties, you must look at the whole of that which 
 took place and passed between them." Compare Bellamy v. Deben- 
 ham ([1891] 1 Ch. 412). 
 
 An offer and acceptance seemed to have been concluded in May v. 
 Thompson (20 Ch. D. 705) ; but it was the sale of a doctor's practice ; 
 and the doctor in accepting wrote to the agent for the vendor: "I 
 will pay, on receipt of corrected agreement;" and to the vendor, "I 
 shall trust to you to give me the best introduction you can during the 
 three months, and afterwards ; " and subsequent letters showed that 
 this matter was never settled. As " introductions" and "restrictive 
 covenants " (which had not been mentioned) are all that a doctor has 
 to sell, it was held that this language — vague though it was — clearly 
 implied disagreement about the most vital terms, and that, therefore, 
 there was no agreement. Jessel, M.R., made some valuable remarks 
 
SPECIFIC PERFORMANCE. 289 
 
 about how language used in private letters should be construed. He 
 said, " I think the decisions of our Courts as to letters have gone 
 quite far enough, that is, in the spelling out of a contract from 
 letters when both parties intended a formal contract to be executed. 
 I think it very often happens that both' parties use expressions in 
 letters which, read alone, would amount to a contract, if we did not 
 know that in fact neither of the parties intended those general 
 expressions to constitute a contract; and in that case, if the Court 
 Jays hold of the language of the letters to make a contract, it 
 makes a contract for the parties which the parties never intended to 
 enter into." 
 
 In Bristol, etc., Aerated Bread Co. v. Maggs (44 Ch. D. 616) a baker 
 sold, and the company bought a shop ; the contract seemed complete 
 in two letters. After which the company wrote a third letter, intro- 
 ducing a new and vital term, namely, a restriction upon the baker 
 trading in the district. It was held that the three letters read 
 together negatived the idea that the two letters constituted a contract. 
 Reliance was placed on Pearson v. Pearson (27 Ch. D. 145), which 
 has been since overruled by Trego v. Hunt ([1896] A. C. 7) ; but the 
 decision in this case did not go beyond that in Churton v. Douglas 
 (Joh. 174), which is still good law. See post, p. 301 ; and compare 
 Williams v. Brisco (22 Ch. D. 441). 
 
 In connection with the subject of contracts by correspondence, it With- 
 in ay be useful to bear in mind the following principles of law : — An "frawal of 
 offer to sell property may be withdrawn before acceptance without 
 formal notice. It is sufficient if the person to whom the offer was 
 made has actual knowledge that the other party has done something 
 inconsistent with the continuance of the offer, as by selling to a third 
 person : Dickinson v. Dodds (2 Ch. D. 463) ; Bolton Partners v. 
 Lambert (41 Ch. D. 295) ; Henthorn v. Eraser ([1892] 2 Ch. 27). 
 
 It is now settled, by the Household Fire Co. v. Grant (4 Ex. D. 216) Post office 
 (where the previous authorities commencing with Dunlop v. Higgins the a g ent 
 (1 H. L. C. 381), are reviewed), that " the post office is the common ° rt j es 
 agent of both parties," and that, as soon as a letter of acceptance is 
 delivered to the post office, the contract is made as complete, as if the 
 acceptor had put his letter into the hands of a messenger sent by the 
 offerer himself as his agent to deliver the offer and receive the accept- 
 ance. See Chitty on Contracts, 12th ed. p. 14 et seq. 
 
 A letter to a third party, an affidavit in another action, instructions What 
 for a telegram, initials, pencil, print, or a recital in a will are sufficient writings 
 notes in writing : In re Hoyle, Eoyle v. Eoyle ([1893] 1 Ch. 84). a ^ c . 
 The document must be signed, not subscribed, but the signature 
 must govern the whole document : per Lord Westbury, Caton v. 
 Caton (L. E. 2 H. L. 127). 
 
 The writings need not be contemporaneous, but "it cannot be The 
 enough merely to say in writing that there was a previous parol writ ii>g s 
 agreement ; it must be proved that there was such an agreement, be contem . 
 and to let in such proof is precisely what the statute meant to poraneous. 
 
 U 
 
290 
 
 SPECIFIC PERFORMANCE. 
 
 forbid : " per Lord Cran worth, Warden v. Jones (2 De Gr. & J. 85) ; 
 cited by Sir G. Jessel, M.R., Trowell v. Shentcm (8 Ch. D. 318, 324) ; 
 and the writings must be made before action brought : Lucas v. 
 Dixon (22 Q. B. D. 357). 
 
 See Fry on Specific Performance, pp. 126 et seq., pp. 252 et seq. 
 
 The Statute 
 of Frauds 
 does not 
 avoid the 
 contract : 
 
 acts of 
 part per- 
 formance 
 make it 
 enforceable 
 in spite of 
 the statute. 
 
 But these 
 acts must 
 not be — 
 
 1. Ancil- 
 lary ; 
 
 Past Performance. 
 
 It has long since been held that the Statute of Frauds does not 
 avoid the contract, but only prevents it being proved. For instance, 
 if a clerk contracts verbally to serve for over a year, what he does is 
 referred to the unenforceable contract, and no other contract is implied : 
 Britain v. Rossiter (11 Q. B. D. 123). Further, if there is part per- 
 formance by the party seeking relief, and to the knowledge of the 
 other party, proof will be admitted of the verbal contract in cases- 
 where an action for specific performance would lie. 
 
 The refusal of the Court of Chancery to be bound by the 4th section 
 of the Statute of Frauds where there were acts of part performance 
 was at first applied to any acts, including (down to 1747) part pay- 
 ment. Lord Blackburn said that it was as though the Court had 
 interpolated words into the section, and said, " I should not hesitate 
 if it was res integra in refusing to interpolate such words or put such 
 a construction on the statute : " Maddison v. Alderson (8 App. Cas. 
 467, 489). Lord Selborne, L.C., pointed out in the same case the 
 real ground of equitable intervention, and the real reason why its 
 scope had shrunk, as follows : — 
 
 There was an irrevocable act — what in Scotch law is called " inter- 
 venes rei " — which had lifted the contract out of the sphere of pure 
 contract, so that the Court had to choose " between undoing what 
 has been done (which is not always possible, or if possible, just) and 
 completing what has been left undone " (p. 476). Accordingly, the 
 " res gesta " " must be such " (in Lord Hardwicke's words, cited by 
 Lord Selborne, L.C., p. 478), " as could be done with no other view 
 or design than to perform the agreement ; " there must be some 
 " evidentia rei " — which means that the act must speak for itself — 
 so as to connect .itself with the agreement. And, further, the act 
 must change the relative positions of the parties towards the subject- 
 matter of the agreement. Every case in which equity held that there 
 was no part performance, every instance of the shrinkage of equity 
 from the position it had once taken up, was an illustration of these 
 two fundamental principles. 
 
 Lord Selborne then classed these cases, where the acts were not 
 treated by equity as part performance, under five heads. 
 
 1. Acts preparatory to the completion of a contract, ancillary or 
 introductory acts as they are sometimes called, ex gr. delivery of 
 abstracts, going to view an estate, etc. : Clerk v. Wright (1 Atk. 13) 
 and Whaley v. Bagnel (1 Bro. P. C. 345). 
 
SPECIFIC PERFORMANCE. 291 
 
 2. Where the act is explicable on other grounds, e.g. the mere 2. Am- 
 holding over by a tenant, " unless qualified by the payment of a biguous ; 
 different rent : " Wills v. Stradling (3 Vesey, 381). 
 
 3. Where the act is negative ; thus in Lamas v. Bayley (2 "Vern. 3. Nega- 
 627), where A. B., being engaged in a treaty for the purchase of land, tlTe - 
 desisted in order that C. D. might buy it in order to resell a part of it 
 
 to A. B. (The same circumstances recurred in Chattock v. Mutter 
 (8 Ch. D. 177), where Malins, V.C., evaded this principle by deciding 
 that C. D. bought as trustee for A. B. But this is contrary to sect. 7 of 
 the Statute of Frauds. See James v. Smith ([1891] 1 Ch. 384), where 
 the facts were similar. Malins, V.C., had thought himself bound by 
 Heard v. Pilley (L. B. 4 Ch. 548) ; but in the latter case C. D. had 
 only contracted to buy, and was still agent ; in Chattock v. Muller 
 and James v. Smith the agency had ceased, for C. D. had already 
 bought the land with his own money.) 
 
 4. Where the act is a condition precedent ; e.g. in CReilley v. 4. Con- 
 Thompson (2 Cox. 271) the plaintiff had obtained from a third party ditions 
 
 a release of a right to a lease claimed by him on an agreement that P rece en • 
 the defendant would grant to the plaintiff a lease of the same premises 
 on certain terms. 
 
 5. Lord Hardwicke's decisions that payment of a part of the pur- 5. Pay- 
 chase-money is an act of part performance are no longer law : Clinan ment °* 
 v. Cooke (1 Sch. & Lef. 22) ; Watt v. Evans (4 Y. & C. Ex. 579, money ' 
 Appx.) ; and according to Britain v. Bossiter (infra), payment of the 
 whole is not part performance. 
 
 A sixth class must be added: for it has been settled by a series of S. Nor is 
 authorities, among which may be mentioned Lassence v. Tierney (1 marriage 
 Mac. & G-. 551), Warden v. Jones (2 De G. & J. 76), Caton v. Colon ^^e 
 (L. E. 1 Ch. 137 ; affirmed L. B. 2 H. L. 127, on other grounds), that 
 marriage is not an act of part performance which will take a parol 
 contract out of the statute. 
 
 In Maddison v. Alderson a housekeeper had served her deceased 
 master gratuitously during his life on a verbal promise of a life 
 interest in his realty if she survived. And Lord Selborue brought 
 this case under each of the first four heads, and therefore refused 
 specific performance. 
 
 It was stated by the Court of Appeal in Britain v. Bossiter (11 Q. B. D. To what 
 123) that the equity of part performance does not extend to contracts . 1 °* erests 
 concerning any other subject-matter than land. It was pointed out, p i; oa bi e 
 however, by Lord Selborne in Maddison v. Alderson (8 App. Cas. 467, 
 474) that this statement is scarcely reconcilable with the view ex- 
 pressed by Lord Cottenham in Eammersley v. De Biel (12 CI. & F. 
 64, n.) and in McManus v. Cooke (35 Ch. D. 681, 697), Kay, J., after 
 elaborately reviewing the authorities, stated that they seemed to 
 establish the following propositions : — 
 
 " (1.) The doctrine of part performance of a parol agreement, which 
 enables proof of it to be given notwithstanding the Statute of Frauds, 
 though principally applied in the case of contracts for the sale or 
 
292 
 
 SPECIFIC PERFORMANCE. 
 
 Companies 
 and cor- 
 porations. 
 
 purchase of land, or for the acquisition of an interest in land, has not 
 been confined to those cases. (2.) Probably it would be more accurate 
 to say it applies to all cases in which a Court of Equity would entertain 
 a suit for specific performance if the alleged contract had been in 
 writing. (3.) The most obvious case of part performance is where the 
 defendant is in possession of land of the plaintiff under the parol 
 agreement. (4.) The reason for the rule is that where the defendant 
 has stood by and allowed the plaintiff to fulfil his part of the contract, 
 it would be fraudulent to set up the statute. (5.) But this reason 
 applies wherever the defendant has obtained and is in possession of 
 some substantial advantage under a parol agreement which, if in 
 writing, would be such as the Court would direct to be specifically 
 performed. (6.) The doctrine applies to a parol agreement for an 
 easement, though no interest in laud is intended to be acquired." 
 
 Accordingly, Lord Justice Kay granted a mandatory injunction to 
 enforce a contract for an easement, although easements are not interests 
 in land within the meaning of the 4th section. 
 
 The doctrine of part performance applies to companies and corpora- 
 tions, as well as to individuals : Wilson, v. West Hartlepool Railway 
 Co. (30 Beav. 187 ; 2 De Gr. J. & Sm. 475). 
 
 Statute of 
 Frauds, 
 s. 4. 
 
 Note. 
 
 The 4th section of the Statute of Frauds provides (inter alia) that 
 " no action shall be brought to charge any person upon any contract 
 or sale of lands, tenements, or hereditaments, or any interest in or 
 concerning them unless the agreement upon which such action shall 
 be brought or some memorandum or note thereof shall be in writing, 
 and signed by the party to be charged therewith or some other person 
 thereunto by him lawfully authorized." The same section applies to 
 agreements upon consideration of marriage, Caton v. Caton (ubi supra), 
 agreements not to be performed within a year, Britain v. Rossiter 
 (ubi supra), and guarantees In re Hoyle, Eoyle v. Hoyle (ubi supra). 
 The section does not apply where there is fraud, nor to resulting, 
 implied or Constructive trusts. See sect. 8, and Eaigh v. Eaye 
 (L. E. 7 Ch. 469) ; In re Duke of Marlborough, Davis v. Whitehead 
 ([1894] 2 Ch. 133). The statute must be pleaded (R. S. C. Order 19, 
 r. 15); and if one section is pleaded reliance cannot be placed on 
 another section : James v. Smith ([1891] 1 Ch. 384). See ante, p. 30. 
 
FAMILY ARRANGEMENTS. 293 
 
 Family Arrangements. 
 
 WILLIAMS v. WILLIAMS. 
 
 (L. B. 2 Ch. 294.) 
 
 A family arrangement may be upheld although there Principle 
 were no rights in dispute at the time of making it, and 
 the Court will not be disposed to scan with much nicety 
 the quantum of the consideration. 
 
 A father who was possessed of real estate of socage, Summary 
 gavelkind, and borough English tenure, and also lease- 
 holds and other personal property, died in 1831, leaving 
 a wife and two sons, John and Samuel. After his death 
 a testamentary paper was found, by which he purported 
 to give all his property (subject to certain provisions 
 for his wife) to his two sons equally. The intended will 
 was unwitnessed, and was accordingly not admitted to 
 probate. It was proved that at an interview shortly after 
 the time when the testamentary paper had been refused 
 probate, John declared that the invalidity of the will 
 should make no difference between himself and his 
 brother, but that the property should "be not mine 
 nor thine, but ours," and that he repeated the same 
 expression on subsequent occasions. The widow never 
 asserted any rights, and indeed stated that she did not 
 claim her right to dower because her sons were carrying 
 out their father's intentions, and for the rest of her life 
 she was supported by her two sons out of the " proceeds 
 of their joint business and the income of their father's 
 estate." The two brothers carried on business in partner- 
 ship for twenty years, and treated the whole of the pro- 
 perty as belonging to them equally. The partnership 
 
294 
 
 FAMILY ARRANGEMENTS. 
 
 was dissolved in 1851, and between 1852 and 1857 there 
 was considerable litigation between the brothers. In 1858 
 Samuel died, and his representatives and devisees in 
 trust instituted a suit alleging that a family arrangement 
 had been made between the two brothers, and asking for 
 a declaration that the estates were equally divisible. 
 The Court of Appeal held that there was sufficient 
 evidence of a family arrangement, which the Court would 
 uphold, and that John and Samuel were tenants in 
 common of their father's property. 
 
 Family 
 arrange- 
 ments in- 
 clude com- 
 promises 
 and re- 
 settle- 
 ments. 
 
 Considera- 
 tion. 
 
 Quantum 
 of con- 
 sideration 
 
 In this case the Court of Appeal extended the definition of family 
 arrangements. " There was here no doubtful right to be compromised, 
 no dispute between the brothers which was to be set at rest, no 
 honour of the family involved ; the appellant was merely prompted 
 by respect for his father's intentions and by his affection for his 
 brother. ... It was strongly argued for the appellant that this case 
 does not fall within the range of those authorities, that those cases 
 extend no further than to arrangements for the settlement of doubtful 
 or disputed rights, and that in this case there was not and could not 
 be any doubtful or disputed right ; but this, I think, is a very short- 
 sighted view of the cases as to family arrangements. They extend, 
 as I apprehend, much further than is contended for on the part of the 
 appellant, and apply, not merely to cases in which arrangements are 
 made between members of a family for the preservation of its peace, 
 but to cases in which arrangements are made between them for the 
 preservation of its property. The re-settlement of family estates 
 upon an arrangement between the father and the eldest son on his 
 attaining twenty-one, may well be considered as a branch of the 
 cases, and certainly this Court does not in such cases inquire into 
 the quantum of consideration : " per Lord Chelmsford, L.C. 
 
 In the present case, the Lord Chancellor said that if there had been 
 no consideration whatever, the arrangement would in all probability 
 not have been treated as binding on the parties, but then there was 
 some consideration to support the arrangement in the circumstances 
 of the case. The borough English property which Samuel had 
 brought into the common stock was of some, though of trifling value. 
 Another fact to be taken into account was that the widow was a party 
 to the arrangement, and had relinquished her freebench and dower 
 and right to one-third of the personalty in order to carry it into effect. 
 
 A family arrangement is not by itself valuable consideration. 
 Penhall v. Elwin (1 Sm. & G. 258) decided that if without value 
 it is void against creditors under 13 Eliz. c. 5, s. 2 ; secus if for value, 
 
FAMILY ARRANGEMENTS. 295 
 
 although the value is inadequate : Holmes v. Penney (3 K. & J. 90) ; and specific 
 In re Johnson (20 Ch. D. 389). Compare supra, p. 56. ance" 1 ™* 
 
 Equity will not grant specific performance of a contract not for 
 value, and a contract to enter into a family arrangement is no 
 exception to this rule. In former times it looked at the quantum 
 of consideration ; and consequently the existence of a family arrange- 
 ment would be a material addition to a slender consideration such as 
 that which existed in the leading case. But the better opinion seems 
 to be that modern equity will not weigh consideration "in golden 
 scales ; " and, as Lord Eldon said, will only refuse specific performance 
 where the inadequacy of price amounts in itself to conclusive and 
 decisive evidence of fraud : Coles v. Trecothick (9 Ves. 246) ; but in 
 case of fraud the Court would set aside a deed. (See Pry on Specific 
 Performance, pt. iii. ch. 7.) But the two following extracts from 
 judgments after Lord Bldon's time seem to indicate that the Court 
 will look to the quantum of consideration where the contract is not 
 to effect a family arrangement : — 
 
 "Prom the case of Stapilton v. Stapilton" ([1739] 1 Atk. 2), said 
 Lord Chancellor Sugden in Westby v. Westby (2 Dr. & War. 503), 
 "down to the present day, the current of authorities has been uniform, 
 and wherever doubts and disputes have arisen with regard to the rights 
 of different members of the said family (and especially, I may observe, 
 where those doubts have related to a question of legitimacy), and fair 
 compromises have been entered into to preserve the harmony and 
 affection, or to save the honour of the family, those arrangements have 
 been sustained by this Court, albeit, perhaps, resting upon grounds 
 which would not have been considered satisfactory, if the transaction 
 had occurred between mere strangers." And Lord Cottenham said in 
 Persse v. Persse (7 CI. & F. 280), "By what scale of money con- 
 sideration are these objects to be estimated? The impossibility of 
 estimating them has led to the exemption of family arrangements 
 from the rules which affect others. The consideration in this and in 
 the other such cases is compounded partly of value and partly of love 
 and affection.'' Compare Falcke v. Gray (4 Drew. 651), which is 
 questioned by Pry (Sp. P. 3rd ed. p. 208). 
 
 In most of the older cases, as in Stapilton v. Stapilton, Stewart v. Com- 
 Stewart (6 CI. & P. 911), a doubtful claim was compromised; and P romii > e - 
 having regard to the current of modern authority it seems difficult to 
 see why any other evidence of valuable consideration was required. 
 
 A bond fide compromise of a doubtful claim is nowadays regarded 
 both in equity and at law as valuable consideration ; and none the less 
 so because one of the parties has no claim : Callisher v. Bischoffsheim 
 (L. B. 5 Q. B. 449). Lansdown v. Lansdown (Mos. 364) cannot be 
 considered law. A narrow but easily distinguishable line separates 
 some of these cases from those of mistake of law and fact grouped 
 respectively around Rogers v. Ingham and Cooper v. Phibbs, in 
 which the intention of the parties was to assert, not to abate, their 
 mutual rights. Where there is an intention to compromise claims in 
 
296 
 
 FAMILY ARRANGEMENTS. 
 
 Conceal- 
 ment of 
 material 
 facts. 
 
 Presump- 
 tive undue 
 influence. 
 
 which each claimant believes, a contract to compromise binds like any- 
 other contract for value. 
 
 For authority for counsel to compromise his client's claim in Court, 
 unless forbidden, see Swinfen v. Swinfen (18 0. B. 485); Harvey 
 v. Croydon, etc., Rural Sanitary Authority (26 Ch. D. 249); Mathews 
 v. Munster (20 Q. B. D. 141) ; and Kempshall v. Holland (14 B. 
 336), discussed 98 L. T. 489. And for procedure, see Hickman v. 
 Berens ([1895] 2 Oh. 638). The Court cannot force a compromise on 
 infants against the opinion of their legal advisers: In re Birchdll 
 (16 Ch. D. 43). 
 
 Like any other contract the compromise can be set aside on grounds 
 of mistake, Hichman v. Berens (svpra), and the contract of com- 
 promise being a contract uberrimce fidei will be set aside unless there 
 is full disclosure of everything material. " To make a compromise 
 of any value the parties must be at arm's length, on equal terms, 
 with equal knowledge, and with sufficient advice and protection : " per 
 James, L.J., Moxon v. Payne (L. R. 8 Ch. 881). This point is well 
 illustrated by the case of Gordon v. Gordon (3 Swanston, 400), where 
 an agreement between two brothers for the division of the family 
 property was set aside after nineteen years, on the ground that 
 the younger brother knew that there had been a ceremony which was 
 called a private marriage and concealed this knowledge, and Lord 
 Eldon said that whether he did so designedly " or in an honest opinion 
 of the invalidity of the ceremony and of a want of obligation on his 
 part to make the communication, the Court could not sanction the 
 arrangement." In Fane v. Fane (20 Eq. 698) an innocent mis- 
 representation as to title by the father and his solicitor (who was also 
 the son's solicitor) induced the son to make the family arrangement ; 
 on the misrepresentation being discovered by the son, the deed of 
 settlement was at his instance set aside. Compare Reynell v. Sprye 
 (8 Ha. 222). 
 
 Similar principles apply to any other compromise. An application 
 to set aside an agreement for the compromise of an action caonot be 
 made by summons in an action, but a fresh action must be brought 
 for the purpose. 
 
 There are two classes of cases with regard to which family arrange- 
 ments stand in a peculiar position. The Court has held that a father's 
 dealings with a child who has just come of age are open to prima facie 
 suspicion of undue influence; and dealings with reversioners are 
 similarly suspected. Compare Baker v. Bradley (7 D. M. & Gr. 597), 
 contrast Talbot v. Staniforth (1 J. & H. 484), and see cases collected 
 under the leading cases of McPherson v. Watt, Earl of Aylesford v. 
 Morris. But if the dealings in question are in the nature of a family 
 arrangement the presumption is not only rebutted but reversed, and 
 the Court regards them with favour: Jenner v. Jenner (2 Giff. 232), 
 Fane v. Fane (20 Eq. 698). In family arrangements it is not 
 essential that the son should have independent advice, and the Court 
 will not inquire how far the influence of the father has been exerted. 
 
AQBEEMENT FOR A LEASE. 297 
 
 Any unusual benefit secured to the father will be watched with 
 jealousy and perhaps expunged: Eoblyn v. Boblyn (41 Oh. D. 200). 
 Only usual provisions should be inserted ; as to which see Blythewood 
 and Janoan's Conveyancing, 4th ed. vol. vi. 381. 
 
 Again, resettlements by way of family arrangement are said to Execution 
 justify the execution of a power by a donee who retains some benefit of powers. 
 thereunder. But for the fact of a resettlement such execution would 
 be a fraud on the power, and therefore void. See notes to Henty v. 
 Wrey,ante, pp. 155 et seq. The only case, however, which bears out this 
 proposition is Davis v. Uphill (1 Sw. 129), where Lord Eldon said : — 
 " I have not met with any case where, in an arrangement settling 
 the interests of all the branches of a family, it has been held that 
 children may not contract with each other to give to a parent who had 
 a power to distribute property among them some advantage which 
 the parent without their contract with each other could not have." 
 The case, however, was one where the parent gave up some estates, 
 in return for which her other estates for life were enlarged so as to be 
 sans waste ; that is to say, value was given for the only advantage 
 secured; and it may be doubted how far the deed of resettlement 
 contained any execution of a power. Perhaps the execution of a 
 power of appointing to children by appointing to a child under an 
 agreement to resettle on his or her marriage, is valid owing to the 
 favour with which the Court views family arrangements. See Farwell 
 on Powers, 2nd ed. p. 421. 
 
 Agreement for a Lease. 
 
 WALSH v. LONSDALE. 
 
 (21 Oh. D. 9.) 
 
 Since the Judicature Acts a tenant holding under Principle 
 an agreement for a lease, of which specific performance 
 would be decreed, stands in precisely the same position 
 as if the lease had been executed, and every branch of 
 the High Court of Justice must give him the same rights. 
 
 Lonsdale agreed to grant, and Walsh agreed to take, a Summary 
 lease of a mill called the Providence Mill for seven years 
 at a rent of 30s. a year for each loom, the looms not to be 
 
298 AGREEMENT FOB A LEASE. 
 
 less after the first year than 540. The lease was to con- 
 tain the usual provisions " and particularly those inserted 
 in a lease of the Newfield Mills." The lease of the 
 "Newfield Mills" contained a stipulation that there 
 should always be payable in advance on demand one 
 whole year's rent in addition to the proportion, if any, of 
 the yearly rent due and unpaid for the period previous 
 to the demand. Walsh was let into possession of the 
 premises, and in 1881 was running 560 looms for which 
 he paid £840 rent, but not in advance. Lonsdale then 
 served a notice demanding payment of the sum of 
 £1013 14s. which was made up of £840 for one whole 
 year's rent of the mill in advance, and £165 14s. for rent 
 which had accrued from the last quarter-day. Two days 
 later Lonsdale put in a distress for the amount demanded. 
 The Court of Appeal decided that Walsh, while holding 
 under an agreement for a lease was subject to the same 
 right of distress as though a lease containing the same 
 stipulations had been granted. 
 
 Agreement The principle on which the decision in this case is based is thus 
 for a lease stated by Jessel, M.E. : " There is an agreement for a lease under 
 as a lease which possession has not been given. Now since the Judicature Act 
 the possession is held under the agreement, there are not two estates 
 as there were formerly, one estate at common law by reason of the 
 payment of the rent from year to year, and an estate in equity under 
 the agreement. There is only one Court, and the equity rules prevail 
 in it. The tenant holds under an agreement for a lease. He holds 
 therefore under the same terms as if a lease had been granted, it being 
 a case in which both parties admit that relief is capable of being given 
 by specific performance. That being so, he cannot complain of the 
 exercise by the landlord of the same rights as the landlord would have 
 had if a lease had been granted. On the other hand he is protected in 
 the same way as if a lease had been granted ; he cannot be turned out 
 by six months' notice as a tenant from year to year. He has a right to 
 say, ' I have a lease in equity, and you only re-enter if I have com- 
 mitted such a breach of covenant as would, if a lease bad been granted, 
 have entitled you to re-enter according to the terms of a proper pro- 
 viso for re-entry.' That being so, it appears to me that, being a lessee 
 in equity, he cannot complain of the exercise of the right of distress 
 merely because the actual parchment has not been signed and sealed." 
 
AGREEMENT FOR A LEASE. 
 
 299 
 
 In AUhusen v. Brooking (26 Ch. D. 559) the question was whether 
 the landlord's right to the ground game on the land was preserved hy 
 the operation of the saving clause (sect. 5 of the Ground Game Act, 
 1880), which is as follows : — " Where at the date of the passing of 
 this Act the right to kill and take ground game oa any land is vested 
 by lease, contract of tenancy, or other contract lond fide made for 
 valuable consideration in some person other than the occupier, the 
 occupier shall not be entitled under this Act, until the determination 
 of that contract, to kill and take ground game on such land." The 
 defendant had an equitable interest under an agreement prior to the 
 Act for a lease for fourteen years, which was to commence from the 
 ■expiration of the legal interest, and reserved to the landlord all game 
 (except rabbits, with regard to which the tenant was to have certain 
 rights). It was held that the agreement for a lease must be treated as 
 equivalent to a lease, and that the reservation of the game thus came 
 within the operation of the saving clause. 
 
 On the same principle, it was decided in Ex parte MonMouse, In re 
 Maughan (14 Q. B. D. 956), that the right of a trustee in bankruptcy 
 to disclaim property of an onerous character, under sect. 55 of the 
 Bankruptcy Act, 1883 — which is now to be read with sect. 13 of the 
 Bankruptcy Act, 1890 (53 & 54 Vict. c. 71)— and rule 320, extended 
 to an agreement for a lease. Field, J., in delivering judgment, said : 
 " Since the Judicature Acts there is now no distinction between a lease 
 and agreement for a lease, because equity looks upon that as done 
 which ought to be done. Consequently after the execution of the 
 agreement for a lease, this debtor had a property vested in him, that 
 is to say, he had land which was burthened with onerous covenants." 
 The observation of the learned judge must, however, be read with the 
 qualification established by Swain v. Ayres (21 Q. B. D. 289, 294) 
 and Ooatsworth v. Johnson (55 L. J. Q. B. 220 ; 54 L. T. 520), that 
 the agreement for a lease must be one of which specific performance 
 would be ordered, and with the qualification established by Foster v. 
 Reeves ([1892] 2 Q. B. 255), that the Court before which the action 
 comes must have adequate equitable jurisdiction, so that the rule 
 •does not apply to County Courts where the subject-matter of the 
 agreement exceeds £500 in value. 
 
 Covenants conferring a benefit as well as covenants imposing a 
 burden upon the tenant begin from the moment that the agreement for 
 a lease can be specifically enforced : see Lowther v. Heaver (41 Ch. 
 D. 248, 264) ; and a tenant will not incur forfeiture on breach of any 
 condition in his agreement for a lease except subject to the exemptions 
 ■contained in the Conveyancing Act, 1881, s. 14 (see p. 68) : Strong v. 
 Stringer ([1889] W. N. 135) ; and see now Conveyancing Act, 1892, s. 5. 
 
 In In re Emanuel and Simmonds (33 Ch. D. 40) it was decided 
 that the scale fee prescribed by Part II. of Schedule I. to the General 
 Order of August, 1882, under the Solicitors' Remuneration Act, 1881, 
 to be paid to a lessor's solicitor " for preparing, settling and complet- 
 ing lease and counterpart," includes the solicitor's remuneration for 
 
 Ground 
 Game Act, 
 1880, 
 43 &44 
 Vict. v. 47. 
 
 Bank- 
 ruptcy Act, 
 1883, s. 55. 
 
 Convey- 
 ancing Act, 
 1881, s. 14. 
 
 Solicitor's 
 Remunera- 
 tion Act, 
 1881. 
 
300 
 
 SALE OF GOODWILL. 
 
 Vendor 
 and pur- 
 chaser 
 summons. 
 
 An analogy 
 from free- 
 
 holds. 
 
 the preparation of a prior agreement for the lease, and the solicitor 
 cannot make an additional charge for the preparation of the agreement, 
 and this decision was approved by the House of Lords in Savery 
 v. Enfield Local Board ([1893] A. C. 218). 
 
 A vendor and purchaser summons (see ante, p. 281), is only availr 
 able with regard to purchases of real or leasehold estates ; but lease- 
 hold estates include estates agreed to be granted on lease : In re 
 Anderton and Miner's Contract (45 Ch. D. 476 ; 63 L. T. 332) ; 
 In re Lander and Ilayley's Contract ([1892] 3 Ch. 41). 
 
 The following cases are merely cited for their analogy to the above 
 cases: — 
 
 A purchaser of land brought an action for damages at Nisi Prius 
 against his vendor, for damage done to the land between the date of 
 the contract, and completion. The Court held that the vendor — 
 between those two dates — was trustee for the purchaser; and the 
 equitable title of the purchaser was sufficient to support the action : 
 Clarke v. Samuz ([1891] 2 Q. B. 456). 
 
 A purchaser of land at an auction is, before completion, entitled 
 to the benefit of restrictive covenants attached to the land : In re 
 Birmingham, etc., Co. and Allday ([1893] 1 Ch. 342). See post, pp. 
 306 et sea. It follows, therefore, that he can bring an action against 
 the persons subject to the burden of the same covenants. 
 
 Sale of Goodivill. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 TREGO v. HUNT. 
 
 ([1896] A. C. 7.) 
 
 In a sale of goodwill the vendor will he restrained 
 from soliciting his former customers; and a retiring 
 partner who agrees that his former partner shall retain 
 the goodwill lies under the same obligations. 
 
 In 1889, A. Trego and Smith entered into a partner- 
 ship for seven years with Hunt ; the goodwill was to 
 remain A. Trego's property. In December, 1894, Hunt 
 employed a clerk of the firm out of office hours to copy 
 the names and addresses of the firm's customers, in order 
 
SALE OF GOODWILL. 301 
 
 that when the partnership expired he might canvass them 
 on his own account. The House of Lords granted an 
 injunction against Hunt from doing so. 
 
 " Goodwill," said Lord Eldon, in Oruttwell v. Lye (17 Ves. 335), " is History 
 nothing more than the probability that the old customers will resort of '^ 
 to the old place." Wood, V.C., expanded the definition, to include °° rme " 
 " every positive advantage that has been acquired by the old firm in 
 carrying on its business, whether connected with the premises in- 
 which the business was previously carried on or with the name of the 
 late firm or with any other matter carrying with it the benefit of the 
 business : Ohurton v. Douglas (Joh. 174, 188). Cotton, L. J., descending 
 from the abstract to the concrete, said in Pearson v. Pearson (27 Oh. 
 D. 145), " It is admitted that a person who has sold the goodwill of 
 his business may set up a similar business next door and say that he is 
 the person who carried on the old business, yet such proceedings mani- 
 festly tend to prevent the old customers going to the old place": 
 Churton v. Douglas. Goodwill is valued on this assumption : Page v. 
 Batliffe (74 L. T. 343). " I cannot see where to draw the line. If 
 he may by his acts invite the old customers to deal with him and 
 not with the purchaser, why may he not apply to them and ask them 
 to do so?" 
 
 The question was suggested by Lord Bomilly's decision in Labouchere 
 v. Dawson (13 Bq. 322) [1871], that the ex-partner may not apply 
 to the old customers privately — by letter, personally, or by traveller — 
 if he has sold to his former partners the goodwill, although he may 
 compete with them in any other way. This case went beyond any 
 other case which preceded it (see Pearson v. Pearson, pp. 150, 153, 
 159), and practically established a new equity deduced (like restrictive 
 covenants), from the old principle that a man may not derogate from 
 his grant. 
 
 In Oinesi v. Cooper & Co. (14 Ch. D. 596), Jessel, M.R., com- 
 menced his judgment by citing the observation of Lord Justice 
 James, that the command " Thou shalt not steal " is as much a 
 portion of the law of Courts of Equity as it is of Courts of Law, and 
 indicated his surprise that the proposition that a trader who had sold 
 for value his business and goodwill to another man is entitled, notwith- 
 standing, to solicit his old customers to deal with him just as if no sale 
 had ever taken place. The injunction, however (the form of which is 
 given, 14 Ch. D. 603), did not restrain dealing with old customers. 
 In Leggott v. Barrett (15 Ch. D. 306), the Court of Appeal reversed 
 the decision of Jessel, M.R., who had restrained the former partner 
 from dealing with old customers ; but there was no appeal from his 
 decision restraining solicitation of old customers. " To enjoin a man," 
 said Brett, L.J., " or to prevent him by means of damages when he 
 does it, against dealing with people whom he has not solicited, is not 
 
302 SALE OF GOODWILL. 
 
 only to enjoin him, but to enjoin them, for it prevents them from, 
 having the liberty which anybody in the country might have of 
 dealing with whom they like." A new point of departure in the 
 doctrine was reached by Walker v. Mottram (19 Ch. D. 355), where 
 the Court of Appeal decided (affirming Jesse], M.R.) that where the 
 goodwill had been sold compulsorily, by the trustees in bankruptcy, 
 the bankrupt could not be restrained from soliciting the customers 
 of the old business, the obligation being in the nature of a personal 
 obligation and not an incident of the transfer of property. Compare 
 Mogford v. Courtenay (29 W. E. 864). 
 
 Then came Pearson v. Pearson ([1884] 27 Ch. D. 145), which 
 nipped the new equity in the bud and overruled Labouchere v. 
 Dawson. Lindley, L.J., however, based his decision on the peculiar 
 wording of the covenant that nothing should prevent the vendor " from 
 carrying on the business at such place as he thought fit and under the 
 name of James Pearson," and on the absence of any express reference 
 to goodwill. In the Bristol, Cardiff, and Aerated Bread Go. v. Maggs 
 (44 Ch. D. 616), Kay, J., followed Pearson v. Pearson, and now 
 Pearson v. Pearson is overruled and Labouchere v. Dawson restored, 
 and the very language of its order repeated (see p. 289). 
 Goodwill I n tne leading case it was decided " that the idea of goodwill and 
 
 defined. what is comprised in the sale of a business has silently been developed 
 and grown since the days of Lord Eldon" (p. 27, per Lord Davey). 
 Lord Herschell approved of Jessel's (M.R.), definition of it in Qinesi v. 
 Cooper as "the formation of that connection which has made the 
 value of the thing that the late firm sold;" and which often, as in 
 Qinesi v. Cooper, is the only thing saleable. Lord Macnaghten said 
 the goodwill is often " the very sap and life of the business, without 
 which the business would yield little or no fruit." It is the advantage 
 " of the reputation and connection of the firm which may have been 
 built up by years of honest work or gained by lavish expenditure of 
 money." And he defined the duties of the vendor or retiring partner 
 thus : " He may not sell the custom and steal away the customers. 
 It is not an honest thing to pocket the price and then to recapture the 
 subject of sale, to decoy it away or call it back before the purchaser 
 has had time to attach it to himself and make it his very own." 
 But on the other hand, " he may do everything that a stranger to 
 the business in ordinary course would be in a position to do. He 
 may set up where he will. He may push his wares as much as he 
 pleases." 
 
 Compare the cases grouped around contract of service in the chapter 
 on Injunctions, and especially Bobb v. Green ([1895] 2 Q. B. 315), 
 where the facts were very similar ; but the " retiring partner " of Trego 
 v. Hunt was represented by a manager, and the decision was based on 
 terms implied in a contract for confidential service instead of on the 
 terms implied by a sale. See post, pp. 325, 326 (negative stipulation). 
 
SALE OF GOODWILL. 
 
 303 
 
 Restraint op Teadb. 
 
 If the purchaser of a goodwill desires to exclude or limit open 
 competition on the part of his vendor, within the meaning of Churton 
 v. Douglas (supra), an express contract to that effect within the 
 meaning of the Bristol, etc., A. B. ft v. Maggs (supra), and May 
 v. Thompson, ante, p. 88, is still necessary. But a contract or covenant 
 in restraint of competition is considered a contract or covenant in 
 restraint of trade, and as such is watched with much jealousy. 
 
 Covenants in restraint of trade rest on common law, but are mainly of 
 importance in Chancery practice ; so that what follows may not he 
 out of place. 
 
 There was a maxim that covenants of world-wide restraint or 
 restraint throughout England are necessarily void. Covenants for an 
 unlimited time were never regarded as necessarily void. The invalidity 
 of a covenant of world-wide restraint is subject to an exception in the 
 following case : — 
 
 In the Maxim Nordenfelt, etc., Co. v. Nordenfelt ([1893] 1 Ch. 630; 
 [1894] A. C. 535), defendant covenanted for what was practically 
 the rest of his life, not to make guns or ammunition anywhere except 
 for plaintiffs, they covenanting to employ him for seven years only ; 
 he might, however, prosecute other branches of his industry and 
 make torpedoes. This contract, after the seven years were over, was 
 declared valid by most of the Law Lords and Lord Justices, on the 
 double ground that it was not against public policy and not unreason- 
 able. But Bowen, L.J., after reviewing all the authorities, based his 
 decision on the first ground only. " Rules," he said, " which rest 
 upon the foundation of public policy, not being rules which belong to 
 the fixed or customary law, are capable on proper occasion of expansion 
 and modification." It was the elasticity of rules of public policy 
 which made Burrough, J., say in despair, " Public policy is a very 
 unruly horse, and when once you get astride of it you never know 
 where it will carry you. It may lead you from the sound law:" 
 Richardson v. Mellish (2 Bingh. 252) ; and which made Lord Bram- 
 well adopt Mr. Justice Cave's caution : it is " a branch of the law which 
 certainly should not be extended, as judges are more to be trusted as 
 interpreters of the law than as expounders of what is called public 
 policy:" Mogul Steamship Co. v. McGregor ([1892] A. C. 25,45). 
 But in the group of cases discussed in the Nordenfelt case, Bowen, 
 L. J., proved that elasticity was a symptom of adaptability, not caprice, 
 and resulted from rational progress and not arbitrary change. Thus 
 the precedents prove that these rules do not exist wherever the reason 
 for their existence is absent — to take one instance, (a) wherever trade 
 secrets are assigned, and, to take another instance, (6) wherever the 
 business or goodwill of a business like Nordenfelt 's is sold ; for " trade 
 cannot suffer by the substitution of one possessor of a secret for 
 another " (p. 666). Moreover, cases where the rule does not exist 
 have been progressively discovered during the last three centuries. 
 
 Covenants 
 in restraint 
 of trade. 
 
 Lord 
 Bowen's 
 
 view of the 
 Nordenfelt 
 
304 
 
 SALE OF GOODWILL. 
 
 Lord Mac- 
 
 naghten's 
 
 view. 
 
 The two 
 views com- 
 pared. 
 
 Thus the idea (c) that " particular " or " partial " restraints may be 
 good, has itself been gradually carved out of the older idea that 
 all restraints are bad; and precedent after precedent has at last 
 established that " restraints which involve only a limit of places at 
 which, of persons with whom or of modes in which the trade is to be 
 carried on, are valid when made for a good consideration and where 
 they do not extend further than is necessary for the reasonable 
 protection of the covenantee." Or put the matter thus : First comes 
 an universal No ; then negatives to this negative, and they fall into 
 two groups (1) worldwide restraints, as to which you never ask, Are 
 they reasonable? (2) partial restraints, as to which you always ask, 
 Are they reasonable ? Indeed, up till 1837, the adequacy of the 
 consideration was inquired into ; although, pace Lord Macnaghten 
 (p. 565), in inquiring into reasonableness the Court will no longer 
 inquire into the adequacy of the consideration : Collins v. Locke (4 
 App. Cas. 674, 686). 
 
 Thus, then, it was that that portion of our common law which is 
 law merchant grew not by rule upon rule, but by exception upon 
 exception ; aDd the result is the somewhat pedantic doctrines summed 
 up by Lord Bowen. 
 
 Lord Macnaghten based his decision exclusively on the ground of 
 reasonableness, and pointed out, in opposition to Bowen, L.J., that 
 the proposition that restraints, unlimited as to space, are void, 
 though supported by innumerable dicta, rest on three cases only — 
 Ward v. Byrne (5 M. & W. 548) ; Horner v. Graves (7 Bingh. 735) ; 
 and Allsopp v. Wheatcroft (15 Eq. 59) — and that these three cases 
 were also discussed from the point of view of the reasonableness of 
 the contract. On the other hand, Whittaker v. Howe (3 Beav. 383) 
 (as cited by Lord Macnaghten, p. 572) ; Wallis v. Day (2 M. & W. 
 273), compare Mogul 8. S. Co. v. McGregor (ubi supra) (exclusive 
 service) ; Jones v. Lees (1H.&N. 189) (mode of manufacture) ; Leather 
 Cloth Co. v. Lorsont (9 Eq. 345) (trade secrets) ; Eoussillon v. Bous- 
 sillon (14 Ch. D. 351) (Fry, J.); Badische Anilin und SodaFabrikv. 
 Schott ([1892] 3 Ch. 447) (Chitty, J.) ;— were all cases of world-wide 
 restraint and were valid. 
 
 The practical value of this dispute may be easily overrated. Thus 
 (1) all these last-mentioned cases, except the first and perhaps the 
 last two, can be supported on L.J. Bowen's reasoning ; but can 
 the last two cases be supported at all ? In this same Nordenfelt case a 
 covenant not to engage in any business liable to compete with that of 
 the company was held void by the Court of Appeal, and their decision 
 was not appealed against ; and the actual decision in the House of Lords 
 left some congenial field open for defendant's activity. But in 
 Eoussillon v. Eoussillon and the Badische Anilin, etc. v. Schott, 
 defendant renounced the only trade he had ever learnt, and the 
 practical effect of his contract was the same as that of the contract 
 declared bad by the Court of Appeal in the Nordenfelt case. (2) Again, 
 the reasoning of Bowen, L.J., is not satisfactory. Thus, if Nordenfelt 
 
SALE OF GOODWILL. 305 
 
 had contracted to serve the company and no one else, and the company 
 to employ Nordenfelt for the rest of his life,, this would have been on 
 all fours with Wallis v. Day (2 M. & W. 273) ; and Bowen, L.J., gives 
 this case as an instance of partial restraint, to which the test of 
 reasonableness must be applied. If so, it is mere sophistry to argue 
 that the Nordenfelt case is a case of general restraint, though it 
 differs only from Wallis v. Day in mutuality, and in the partial 
 omission of the affirmative term. Again, he classes contracts not 
 to carry on the manufacture which was the subject of such and such a 
 patent in Europe (Leather Cloth Co. v. Lorsont) as a general exception 
 to world-wide restraint ; and contracts not to make machines without 
 using a specified invention (Jones v. Lees) as a particular restraint. 
 These thin distinctions are surely doomed. (3) Can a case be conceived 
 where a contract of world-wide restraint will harmonize with general 
 policy and yet be thought unreasonable? If yes, Bowen, L.J., would 
 hold such a contract good ; Lord Macnaghten bad. Then the matter 
 would be clenched. Until then the discussion is academic, and Lord 
 Macnaghten's simple sense may be preferred to L.J. Bowen's cumbrous 
 scholasticism. In either case a contract (like that of Heyse's Hain- 
 konig in Kinder der Welt), which may involve industrial suicide, will 
 lie under the gravest suspicion, both on the ground of public policy 
 and of private reasonableness. 
 
 A contract prohibiting a former employee from starting any Other 
 business in a limited area without the employer's consent, such consent rec,!nt 
 not to be withheld if the business is of a different kind to employer's 
 business, is unreasonable, and therefore void: Perls v. Saalfeld 
 ([1892] 2 Ch. 149). Compare Baker v. Eedgecock (39 Ch. D. 590). 
 
 A contract restraining a bagman from calling on, soliciting orders 
 from, or dealing with plaintiffs old customers (in the way of plaintiffs 
 business) is valid : Mills v. Dunham ([1891] 1 Ch. 576). In this case 
 the words in brackets were implied. Compare Davies v. Davies (36 
 Ch. D. 359). 
 
 In Baines v. Geary (35 Ch. D. 154) under an agreement for em- 
 ployment as a milk-carrier the servant undertook that " he would not 
 either during service or after being discharged or quitting such 
 service serve (with milk, etc.) or directly or indirectly interfere with 
 any of the customers served or belonging at any time to the master, 
 his successor, or assigns." It was held, as in the Nordenfelt case, that 
 the undertaking was severable, and could be enforced in respect of 
 persons who were customers during the employment. In Dubowski 
 v. Goldstein ([1896] 1 Q. B. 478) similar words were used, the words 
 in brackets being implied, and an injunction was granted similar 
 to that in Baines v. Geary. The Court of Appeal intimated their 
 opinion that the entire covenant was good, and there was no need 
 for severing it. 
 
 In Rogers v. Haddocks ([1892] 3 Ch. 346) a covenant by a brewer's 
 traveller not to sell beer nor aerated waters in a certain area was 
 severed : as to beer it was upheld, as to aerated waters it was void. 
 
 cases. 
 
306 
 
 BESTRIOTIVE COVENANTS. 
 
 In Evans v. Ware ([1892] 3 Ch. 502) the Court upheld a contract 
 of this nature entered into by an infant, and acted on by him after 
 attaining twenty-one. 
 
 A covenant " to retire, so far as the law allows, from the business " 
 is bad for vagueness : Davies v. Davies (36 Ch. D. 359). 
 
 A covenant by a retiring partner " not to trade so as to affect the 
 continuing partners " is (assuming it to be valid) personal, and will 
 not pass to the assigns of the continuing partners : Davies v. Davies 
 (ubi supra). But see Batho v. Tunhs ([1892] W. N. 101). 
 
 And see generally Smith's Leading Cases, Mitchel v. Reynolds, 10th 
 ed., vol. i. pp. 391 et seq. 
 
 Restrictive Covenants. 
 
 Principle. 
 
 Summary 
 of facts. 
 
 Easement 
 or con- 
 tract ? 
 
 AUSTERBERRY 
 
 . CORPORATION OP OLDHAM. 
 
 (29 Ch. D. 750.) 
 
 The doctrine of Tulk v. Moxhay is confined to 
 restrictive covenants, and will not he extended to a 
 covenant to lay out money or do any other act so as to 
 bind a purchaser taking with notice of the covenant. 
 
 John Elliott conveyed a slip of land, bounded on both 
 sides by other lands which belonged to him, to the 
 trustees of a road company, who covenanted with John 
 Elliott, his heirs and assigns, that they, their heirs and 
 assigns, would make and maintain the road, and allow 
 the user by the public subject to tolls. John Elliott sold 
 his lands to Austerberry and the trustees sold the road 
 to the Corporation of Oldham, both parties having notice 
 of the covenant. The Court of Appeal decided that 
 Austerberry could not enforce the covenant against the 
 Corporation. 
 
 Jessel, M.K., raised the question in the L. and S. W. Railway Co. v. 
 Oomm (20 Ch. D. 562, 583), whether covenants not to use one's land 
 
RESTRICTIVE COVENANTS. 
 
 307 
 
 in a certain way — and which are attached to the land — ought not to 
 be regarded as easements instead of as covenants. 
 
 It is more logical, and more in accordance with continental usage, to 
 regard " restrictive covenants " as a branch of the law of " negative 
 easements." " Negative easements " may be illustrated by rights to 
 light which prevent the owner of the servient tenement from building 
 so as to obstruct light. But this branch was invented by equity ; 
 hence arose two peculiarities : — 
 
 (1) The first peculiarity is a peculiarity of name. " Restrictive 
 covenants " could not be called easements because, before 1875 (Nov.), 
 •common law would not recognize their existence (unless they were 
 entered into between landlord and tenant, or unless they were purely 
 personal covenants), so they had to be termed covenants, on the 
 analogy of those covenants running with the land which bind lessees 
 and reversioners and their respective assignees. (See Smith's Lead- 
 ing Cases, 10th ed., vol. i. p. 52, Spencer's case.) The word 
 " covenant " is especially misleading : " if there were a mere agreement 
 and no covenant this Court would enforce it : " per Lord Cottenham : 
 TuTk v. Moxhay (uhi infra) ; and Hall, V.C., said in Renals v. 
 Cowlishaw (uhi infra), " This right exists wherever a mutual contract 
 •can be sufficiently established." 
 
 And the word " contract " is misleading, for the Court will grant 
 an injunction without any necessity to show damage : Lord Manners 
 v. Johnson (1 Ch. D. 673) ; Richards v. Revitt (7 Ch. D. 224) ; and, 
 as we shall see, the right to sue can be lost more easily than the right 
 to sue for breach of contract. 
 
 Owing to their nomenclature restrictive covenants were regarded as 
 an exception to the rule against perpetuities (see p. 47). If they had 
 been called easements, they would not have been regarded as ex- 
 ceptions, for easements are rights of property, and the most important 
 rights of property are in their nature perpetual; indeed, it was in 
 order to defend the perpetuity of these rights of property that the 
 rule was invented. 
 
 BeiDg, then, called contracts, and, as such, exceptions to the rule 
 against perpetuities, it. was suggested that exceptions to this rule might 
 be created by any contract made since the Judicature Acts. If you 
 violate the rule by a contract not to do this or that, why not violate it 
 by a contract to do this or that ? The language used with regard to 
 covenants running with the soil is equally applicable to negative and 
 positive covenants ; and Spencer's case and similar cases put negative 
 and positive covenants in the same category. When Lord Cottenham 
 laid down the principle in Tulh v. Moxhay (2 Phill. 774) — the Leicester 
 Square case of 1848, which has been characterized as the first case in 
 which this doctrine was " brought to a focus " — he drew no line 
 between "a covenant between vendor and purchaser on the sale of 
 land that the purchaser and his assigns shall (1) use or (2) abstain from 
 using the land in a particular way." 
 
 The fallacy of this line of reasoning was pointed out in three cases — 
 
 Being in- 
 vented by 
 equity they 
 were called 
 covenants ; 
 
 but they 
 differ from 
 covenants, 
 
 and they 
 differ from 
 contracts. 
 
308 
 
 RESTRICTIVE COVENANTS. 
 
 They differ 
 from ease- 
 ments in 
 the matter 
 of notice. 
 
 Evidence 
 that a re- 
 strictive 
 covenant is 
 intendeJ. 
 
 Haywood v! Brunswick Building Society (8 Q. B. D. 403) ; The London 
 and South Western Railway Co. v. Qomm (20 Ch. D. 562), followed 
 e.g. in Ray v. Walker ([1892] 2 Q. B. 88) ; and the leading case. 
 
 The first case was a case of a covenant to repair, the second case 
 contained a covenant to reconvey on the exercise of an option by the 
 vendor; and the principle of Tulk v. Moxhay was regarded as in- 
 applicable to both cases. In the third case the apparently inconsistent 
 case of Morland v. Cook (6 Eq. 252) was explained as the grant of a 
 rent-charge to carry out a common law liability to repair. The effect 
 of these three decisions has been to settle the law once for all ; but 
 see Andrew v. AitJeen (22 Ch. D. 218). Bestrictive covenants have 
 once for all been relegated to a class by themselves, and have been 
 taken out of the law of contract. 
 
 (2) The benefit or burden of " restrictive covenants " cannot pass 
 from an owner to|his assign, unless the assign is an equitable assign with 
 notice. Similarly if a legal assign, it must be shown that he intended 
 to buy the land subject to the burden, or (as the case may be) along 
 with the benefit : Renals v. Cowlishaw (9 Ch. D. 125 ; 11 Ch. D. 866). 
 Basements have not got to be kept alive by " notice ; " but " restrictive 
 covenants " die for want of " notice " as soon as the legal estate 
 changes hands ; and once dead they cannot be resuscitated. 
 
 In order that the benefit of a covenant may enure to a purchaser 
 of land from the covenantee it must be shown — 
 
 (1) Either that the conveyance containing the covenants expressly 
 confers the benefit of the covenant on the owner for the time being of 
 each portion retained by the vendor, or at any rate of that particular 
 portion in respect of which plaintiff claims: per Hall, V.C., in Renals 
 v. Cowlishaw (ubi supra). See King v. Dickeson (40 Ch. D. 596) - r 
 Jackson v. Winniforth (47 L. T. 243) ; Mackenzie v. Childers (43 
 Ch. D. 265). This is conclusive. 
 
 (2) Or that the purchaser is " an assign of all that the vendor retained 
 when he executed the conveyance containing the covenants .: " Renals- 
 v. Cowlishaw. This is apparently not conclusive, but only very 
 material evidence. 
 
 (3) Where the whole estate is offered for sale simultaneously and 
 the vendor retains no land, " that is almost if not quite conclusive 
 (unless there is something contradictory) that the covenants which he 
 takes from the purchasers are intended for the benefit of each pur- 
 chaser as against the others : " Nottingham Patent Brick, etc., Co. v. 
 Butler (16 Q. B. D. 778, 785). 
 
 The reason for this was thus stated in the same case (15 Q. B. D. 268)' 
 by Wills, J., and approved by Lord Esher and Lindley, L.J. (S. C. 16 
 Q. B. D. 778, 784, 791) : " Where the same vendor selling to several 
 persons plots of land, parts of a larger property, exacts from each of 
 them covenants imposing restrictions on the use of the plots sold 
 without putting himself under any corresponding obligation, it is a 
 question of fact whether the restrictions are merely matters of agree- 
 ment between the vendor himself and his vendees imposed for his own 
 
RESTRICTIVE COVENANTS. 309 
 
 benefit and protection, or are meant by him and understood by the 
 buyers to be for the common advantage"of the several purchasers ; " 
 and only in the latter case " such purchasers and their assigns may 
 enforce them inter se for their own benefit; " and he added, "Where 
 the vendor retains no land, how can he be construed as imposing 
 covenants for his own benefit ? " 
 
 Stirling, J., drew the same inference in a case where the only 
 portion of land retained by the vendor for his own benefit already 
 complied with the conditions : and it was shown upon a plan annexed 
 to the particulars that this was the case : In re Birmingham and 
 District Land Co. and Allday ([1893] 1 Oh. 342). 
 
 (4) Where the vendor intends to retain no land (as when he puts 
 up an entire estate to auction and some lots are unsold) the same 
 inference is drawn as in (3), only the vendor stands in the shoes of the 
 persons who would have been purchasers of the unsold lots, if such lots 
 had been sold. (The usual way in which this rule is stated is that the 
 vendor, after the first sales, is subject to an implied contract not to 
 deal with or sell the property without subjecting it toithese conditions.) 
 The two last-cited cases illustrate this principle. In Mackenzie v. 
 Childers (43 Ch. D. 265) an injunction was granted at the iustance of 
 a purchaser of lots sold at the first auction against his vendor reselling 
 unsold lots free from the restrictive covenants subject to which the 
 whole estate was originally offered for sale. 
 
 In Collins v. Castle (36 Ch. D. 243) property a., b., c, was put up 
 for sale, and a. was sold to plaintiffs. There was a general scheme, 
 whose details however varied with regard to different plots, some 
 plots being free from restrictive covenants. Next year &., c, d. 
 was put up for sale, and 6. was sold to plaintiffs ; c. was made 
 subject to similar restrictive covenants. Next year c. was sold to 
 defendant subject to the restrictive conditions mentioned in the two 
 previous years. Plaintiff obtained an injunction against any violation 
 by defendant of these conditions. It is obvious that this case only 
 carried the principle of the Nottingham case (as Kekewich, J., called 
 it) a little further. Kekewich, J., did not base his decision on any 
 contractual right in the plaintiffs. " They are entitled," he said, " not 
 to sue the defendant on the covenant contained in his purchase deed, 
 but to enforce that covenant so far as it is in accordance [with the 
 •conditions subject to which he bought " (p. 255). 
 
 In Spicer v. Martin (14 App. Cas. 12) Martin, as lessee of Spicer 
 subject to restrictive conditions, and with notice of other similar 
 .covenants affecting other adjoining premises occupied byi Spicer, 
 obtained an injunction against Spicer and an intending purchaser from 
 Spicer prohibiting both defendants from violating these conditions. 
 Lord Macnaghten based his judgment upon the maxim that no one 
 can derogate from his own grant. Compare Hudson v. Cripps ([1896] 
 1 Ch. 265) (tenant of flat) and Mander v. Falche ([1891] 2 Ch. 554) 
 ^lessee's manager). 
 
 In cases not falling under the above heads there are no mutual Cases of 
 
310 
 
 RESTRLCTIVE COVENANTS. 
 
 pure con" 
 tract. 
 
 Release of 
 land. 
 
 Practice, 
 
 An open 
 question. 
 
 rights as between purchaser and purchaser : Clegg v. Hands (44 Ch. D, 
 500) ; Master v. Hansard (4 Ch. D. 718) (as to lessees) ; Davis v. 
 Corporation of Leicester ([1894] 2 Ch. 208) (ultra vires); Keates v. 
 Lyon (L. E. 4 Ch. 218) ; Tucker v. Vowles ([1893] 1 Ch. 195) (no- 
 general scheme) ; Everett v. Remington ([1892] 3 Ch. 148) (consent 
 of vendor, his heirs or assigns). 
 
 The land is released from its burden when a purchaser buys without 
 notice the legal estate to which either the burden or (Renals v. 
 Cowlishaw) benefit is attached. It must be remembered, however, 
 that lessees have notice of their lessors' title. See Patman v. Harland 
 (post, p. 311). 
 
 It is also released if the covenantees have committed or ac- 
 quiesced in material breaches of the restrictive covenant : Duke of 
 Bedford v. Trustees of the British Museum (2 My. & K. 552) ; Peek 
 v. Matthews (3 Eq. 515) ; Sayers v. Collyer (28 Ch. D. 103) ; secus 
 where such breaches are immaterial or do not affect a covenantee 
 directly, Western v. Macdermott (L. E. 2 Ch. 72), Richards v. Bevitt 
 (7 Ch. D. 224), Meredith v. Wilson (69 L. T. 336), Knight v. Sim- 
 monds ([1896] 1 Ch. 653 ; affirmed (12 T. L. E. 401) ; secus where he 
 merely remained passive, London, Chatham, and Dover Bailway Co. v. 
 Bull (47 L. T. 413). 
 
 It is released too by a purchase under the Lands Clauses Act, 1845, 
 etc. : Kirby v. School Board for Harrowgate ([1896] 1 Ch. 437) ; for 
 the remedy under the L. C. Act (if any) is specified by sect. 68. 
 
 It can be released as against one covenantee without being released 
 as against others : King v. Dickeson (40 Ch. D. 596). Compare Knight 
 v. Simmonds (ubi supra) where there was a general scheme affecting 
 the property (a., b., c, d.) ; and sub-purchasers of a., b. substituted 
 a qualified scheme. The qualified scheme was alone enforceable 
 as between different occupiers of a., b., although as between any 
 occupier of a., b., and any occupier of c. or d., the general scheme 
 was binding. 
 
 In Bowes v. Law (9 Eq. 636) damages were granted in lieu of 
 injunction. Compare dictum in Sayers v. Collyer (28 Ch. D. 
 110). 
 
 It would appear from the above cases that there is only one contin- 
 gency which is not provided for, and that is supposing the common 
 vendor sells under one scheme at successive auctions, and has at a sub- 
 sequent sale actually parted with land free from restrictive covenants to- 
 a purchaser for value without notice. It is clear that there is no remedy 
 against the purchaser. It is clear also that an injunction will not lie, 
 and it is doubtful whether an action for damages will lie against the 
 vendor. Bowes v. Law (ubi supra) is an authority for the statement 
 that when a vendor has parted with his land he has parted with his 
 liability ; but in that case it was held that the purchaser was liable, 
 because he took with notice of the vendor's obligation. 
 
 No purely personal remedy (like an assumpsit) has ever been 
 applied in cases of this kind, and it may be doubted whether it could 
 
NOTICE. 311 
 
 be applied. The better view seems to be to regard these restrictive 
 covenants as having nothing to do with the law of contract, but as 
 being a burden upon land. 
 See Smith's Leading Cases, 10th ed., vol. i. pp. 86 et seq. 
 
 Notice. 
 
 t 
 
 PATMAN v. HARLAND. 
 
 (17 Ch. D. 353.) 
 
 Where a purchaser has notice of a deed forming Principle 
 part of a chain of title, he has notice of the contents of 
 the deed. 
 
 A lessee has notice of his lessor's title. 
 
 Patman conveyed to Herve two freehold plots of land, Summary 
 
 n • • °f f a °t s - 
 
 part of a building estate, subject to restrictive covenants, 
 one of which, was that private dwelling-houses only 
 should be erected. Herve subsequently conveyed the 
 two plots, subject to the covenants, to Harland. Har- 
 land, who had erected a dwelling-house on one plot, 
 granted a lease of the plot to B., and the lease provided 
 that B. might erect a studio and use the premises as a 
 school of art, but not for carrying on any other business 
 or employment. Neither B. nor her solicitor knew of the 
 restrictive covenants, and B. had proceeded to erect and 
 nearly completed a studio detached from the house. The 
 Court declared that B. was bound by the restrictive 
 covenant, and restrained her from proceeding with the 
 construction of the studio. 
 
 In this case, the defendant, though ignorant of the restrictive Arguments 
 covenant which affected the property, was bound by it on the principle ' n * . 
 established, as Jessel, M.B., said, for more than a century, and treated case 
 
312 
 
 NOTICE. 
 
 Vendor 
 and Pur- 
 chaser Act, 
 1874, s. 2. 
 
 Notice of 
 a deed is 
 notice of 
 its con- 
 tents. 
 
 Kepresen- 
 tation of 
 
 by Lord Eldon as settled law, that a lessee is bound to make reason- 
 able inquiry into his lessor's title, to require " the usual title, what- 
 ever that title may be. If the lessor had a conveyance made to him 
 the day before that would not do, the lessee must ask for the con- 
 veyance to him and a fair reasonable deduction of title." 
 
 It had been contended that the effect of the first provision in sect. 2 
 of the Vendor and\ Purchaser Act, 1874, and supplemented by the 
 Conveyancing Act, 1881, ss. 3 (1) and 13, preventing an intended lessee 
 or assignee from calling for the lessor's title, was to alter this rule. 
 This point was disposed of in the judgment as follows : — " What the 
 Vendor and Purchaser Act does is this, in order that a lessee may 
 obtain his lessor's title, it makes an express stipulation to that effect 
 necessary, whereas formerly the rule was the other way, that without 
 express stipulation the lessee had a right to the title. If, therefore, 
 the lessee had formerly expressly bargained to take a lease without 
 looking into the lessor's title, the lessee would have been bound by 
 constructive notice, and now, if the lessee says nothing, it is exactly 
 the same as if formerly he had bargained expressly not to look into the 
 lessor's title " (p. 359) ; and compare Mogridge v. Clapp ([1892] 3 Ch. 
 382). 
 
 There is one other method besides express stipulation whereby a 
 lessee may obtain inspection of his lessor's title ; and that is if he has 
 definite knowledge aliunde of its defect, pleads it in an action, and 
 obtains an order for discovery and production under Order xxxi., r. 12 
 et seq. : Jones v. Watts (43 Ch. D. 574). 
 
 As then B. had in the leading case constructive notice of the lessor's 
 title-deeds, she had similar notice of their contents. As Jessel, M.R., 
 said, " Notice of a deed relating to and forming part of the chain of 
 title is notice of the contents of that deed and it is no excuse for not 
 asking to look at it to say you were told " that it did not affect 'the 
 title. "If it does affect the title you are bound by its contents." 
 
 There is, however, an important exception to this rule as stated ; 
 which is, that if a purchaser agrees at a sale, either by auction or 
 private contract, to take a sublease or to purchase leaseholds, he is 
 not supposed to be acquainted with the contents of the lease before 
 signing the contract, unless he has either inspected it beforehand or 
 there is a condition of sale that he should do so. " There is great 
 practical convenience in requiring the vendor who knows his own 
 title to disclose all that is necessary to protect himself, rather than in 
 requiring the purchaser to demand an inspection of the vendor's title- 
 deed before entering into a contract a demand . . . which is not in ac- 
 cordance with the usual course of business : " per Fry, L.J., Reeve v. 
 Berridge (20 Q. B. D. 523), cited and applied in In re White and 
 Smith's Contract ([1896] 1 Ch. 637). And compare Caballero v. 
 Henty, cited below. But this exception had nothing to do with the 
 leading case, where the title had been investigated in due course. 
 
 It was, however, contended that there was a representation that no 
 such restrictive covenant existed. A recital has been construed as a 
 
NOTICE. 
 
 313 
 
 representation, Hope v. Liddell (21 Beav. 183), why should not this 
 proviso coupled with the lessor's silence be similarly construed ? The 
 rule was stated thus in Williams v. Williams (17 Ch. D. 443) : — " If 
 a man has notice that there is a deed or document, and at the same 
 time has notice that that deed or document is entirely worthless or 
 does not affect the property with which he is going to deal, he is put 
 so completely off his guard that a Court of Equity does not treat him 
 as fixed with knowledge of the document or the effect of it." 
 
 The following are instances of the rule : — A purchaser is told of a 
 deed that may or may not, and is told that it does not, affect the land. 
 He has a complete title without the deed :i Jones v. Smith (1 Ph. 244). 
 Compare In re Bright's Trusts (21 Beav. 430) ; Carter v. Williams 
 {9 Eq. 678), as cited in the leading case (p. 358). A mortgagee of a 
 oompany has notice that there are debentures; but the debentures 
 may or may not affect his right to priority, and he is assured that they 
 do not : English and Scottish Mercantile Investment Co. v. Brunton 
 ([1892] 2 Q. B. 700). In these cases there was no constructive 
 notice of the flaw on the title. Analogous cases of a man asking for 
 absent title-deeds and being put off with a plausible excuse have been 
 discussed elsewhere : Maxfield v. Burton (17 Eq. 15). See chapter on 
 Priorities, ante, pp. 212, 213. A similar rule has also been applied 
 where a share-certificate contains a representation that it is fully paid 
 up ; the purchaser in that case need not inquire whether it has been fully 
 paid up, and the onus lies on the company to prove that the purchaser 
 had constructive notice that it was not paid up : Bwhinshaw v. Nicolls 
 (3 App. Cas. 1004), followed in In re A. W. Ball & Co. (37 Ch. D. 712), 
 and compare In re New Chile Cold Mining Co. ([1892] W. N. 193). 
 But the Court pointed out that this rule had only been applied to cases 
 where a person might get a complete chain of title without any notice 
 of the deed or proviso, about which the representation was made ; and 
 that it was therefore out of place here, as it was in Hope v. Liddell. 
 
 Notice according to the time-honoured division is either "actual" 
 or "constructive" notice, or, as Lord Chelmsford preferred to call it 
 in Espim v. Pemberton (3 De Gr. & J. 547), "imputed notice," i.e. 
 " evidence of notice, the presumption which is so violent, that the 
 Court will not even allow of its being controverted : " Plumb v. Fluitt 
 (2 Anst. 438). 
 
 Sect. 3 of the Conveyancing Act, 1882, defines constructive notice 
 thus : 
 
 " (1.) A purchaser shall not be prejudicially affected by notice of 
 any interest, fact, or thing, unless : — 
 
 " (i.) It is within his own knowledge, or would have come to his 
 knowledge, if such inquiries and inspections had been made as ought 
 reasonably to have been made by him : " about which Lindley, L. J., 
 said it " really does no more than state the law as it was before, but 
 its negative form shows that a restriction rather than an extension of 
 the doctrine of notice was intended : " Bailey v. Barnes ([1894] 1 Ch. 
 25, 35). 
 
 lessor no 
 answer. 
 
 " Actual " 
 or " con- 
 structive " 
 notice. 
 
 Conveyanc- 
 ing Act, 
 1882, ». 3, 
 defines con- 
 structive 
 notice. 
 
314 
 
 NOTICE. 
 
 Lord Cran- 
 
 worth's 
 
 definition, 
 
 and LJ. 
 
 Lindley's 
 
 three 
 
 I. Visible 
 defects. 
 
 Notice of 
 tenancy. 
 
 Lord Cranworth, in Ware v. Lord Egmont (4 D. M. and G. 460, 473> 
 said that constructive notice arose where a purchaser would have 
 acquired knowledge of a defect but for his " gross or culpable negli- 
 gence," a phrase which has been frequently cited. See In re A* 
 W. Hall & Co. (supra), Bailey v. Barnes ([1894] 1 Ch. 25) ; and 
 compare Montefiorev. Browne (7 H. L. C. 241). In estimating th& 
 negligence, regard must be had to the " usual course of business :" per 
 Lindley, L.J., in Bailey v. Barnes, p. 35. And the cases according 
 to Lindley, L. J., fell into two classes : I. First, where " a purchaser has 
 actual notice of some defect, inquiry into which would disclose others."' 
 II. Secondly, where "a purchaser has purposely abstained from making 
 inquiries for fear he should discover something wrong" (ib). III. A 
 third class, that of agents, will be noticed presently. 
 
 I. When a person purchases property where a visible state of things, 
 exists, such as a sea-wall, which could not legally exist, or is unlikely 
 to exist, without the property being subject to some burden, he is- 
 taken to have notice of the extent and nature of that burden ^ 
 Morland v. Cook (6 Eq. 252). Similarly an archway coupled with 
 plans, Davies v. Sear (7 Eq. 427), may effect notice of a right of 
 way. In Allen v. Seckham (11 Ch. D. 790) a window overlooking 
 the purchased property, and in Attorney- General v. BiphosphatecC 
 Guano Co. (11 Ch. D. 327) a road marked private on the plan, was 
 not enough to put the purchaser on inquiry as to whether an ease- 
 ment existed. In Eervey v. Smith (22 Beav. 299) the number of 
 chimneys differed from the number of flues, and thus gave notice of 
 a smoke easement. 
 
 In Cdballero v. Henty (L. E. 9 Ch. 447), an action was brought by 
 the vendor for specific performance of a contract to purchase a freehold 
 public-house. The conditions of sale stated that it was in the occupa- 
 tion of a tenant ; but it was in fact in lease for a term of which eight 
 years were unexpired. The object of the purchasers was to obtain 
 a public-house for the purpose of extending their own business as 
 brewers. The Court of Appeal, practically overruling James v. 
 Lichfield (L. R. 9 Eq. 51), refused specific performance ; and compare 
 Phillips v. Miller (L. R. 10 C. P. 420). The doctrine of Daniels v. 
 Davison (16 Ves. 249, 17 Ves. 433), and Holmes*. Powell (8 D. M. 
 & G. 572), that a purchaser who has notice that parties are in posses- 
 sion is bound to inquire what their tenancies are, has no application 
 to cases where the matter still rests in contract. An interesting 
 illustration of the doctrine of Daniels v. Davison, etc., was furnished 
 by Ebhetts v. Conquest ([1895] 2 Ch. 377). An underlessee was under 
 liability to repair. " He had clear notice upon the face of his own 
 underlease that it was an underlease, and that there was a subsisting 
 lease from the superior landlords ; and knowing . . . that he must be 
 taken to have known all the terms of that superior lease : " per Rigby,. 
 L.J. (p. 387). One of these terms was that the superior ended ten 
 days after the inferior lease; and another term entailed far greater 
 liabilities to repair than those which the underlease imposed. The- 
 
NOTICE. 
 
 315 
 
 effect of constructive notice of these terms in the superior lease upon 
 the underlessee was that the measure of damages for breach of his 
 covenant, was the liability in which such breach involved his lessor 
 under the terms of the superior lease. This doctrine is merely an 
 extension of the old doctrine that notice of an outstanding legal estate 
 is notice of its trusts, and that notice of a relevant equity is notice 
 of its extent and scope: Att.-Gen. v. Flint (4 Ha. 147); contrast 
 Graham v. Drummond ([1896] 1 Ch. 968) (executor-legatee-vendor) ; 
 and see Reeve v. Berridge (supra). 
 
 In Selwyn v. Garflt (38 Ch. D. 273) a mortgagee sold underiis power Power of 
 of sale one month after the date for redemption, and seven months e , ln 
 
 TYlOYT0"*lO r 6 
 
 after the date of the deed. Three months notice were necessary. 
 There was the usual clause protecting purchasers from inquiring into 
 the circumstances under -which the power was exercised. The 
 purchaser was held to have notice that the sale was irregular. Compare 
 Parkinson v. Banbury (1 Dr. & Sm. 143 ; L. R. 2 H. L. 1). 
 
 In Bailey v. Barnes ([1894] 1 Ch. 25) a mortgagee transfers his 
 mortgage in fee to C. D. in consideration of £6316 5s. 8d. then due on 
 his mortgage. Two days later C. D. purports to exercise his power of 
 sale under the Conveyancing Act, and sells to E. F. in fee in con- 
 sideration of £6316 5s. 8d. E. P., after mortgaging the premises for 
 £6000, sells, subject to the mortgage, to A. B. for £2500. A. B. knows 
 that the premises were valued at £8700 a month after the sale to E. F. 
 It was decided that the sale was invalid, but that A. B. had no con- 
 structive notice of invalidity in the sale : Bailey v. Barnes ([1894] 
 1 Ch. 25). 
 
 II. A man may not clap a telescope to his blind eye and then say II. Wilful 
 he did not see the danger signal. Thus, " if a purchaser chooses to blindness, 
 take property with a thirty-eight years title, he has constructive notice 
 
 of that which he would actually have known if he had required a 
 forty years' title," which means " a title deduced for forty years and 
 for so much longer as it is necessary to go back in order to arrive at a 
 point at which the title can properly commence : " per North, J. In 
 re Cox and Neve's Contract ([1891] 2 Ch. 109, 118). 
 
 On the other hand, if he shuts his eyes, and there is a flaw ; but 
 1 had he opened his eyes the flaw would not have been discovered, he is 
 safe : Dunning v. Earl of Gainsborough ([1885] W. N. 110). 
 
 III. The knowledge of the agent does not affect his principal in two ill. Know- 
 cases : ledge of 
 
 (a) Where " the act done by the agent is such as cannot be said to "S™* 8 - 
 be done by him in his character of agent, but is done by him in the 
 character of a party to an independent fraud on his principal : " per 
 Fry, J., in Cave v. Cave (15 Ch. D. 639, 644). Compare Bolland v. 
 Hart (L. B. 6 Ch. 678) ; Boursot v. Savage (2 Eq. 134) ; Sharps v. Foy 
 (L. B. 4 Ch. 35). The question how far and where an agent can bind 
 his principle by his fraud is discussed in our leading case of Thome 
 v. Heard, but for purposes of constructive notice, he cannot in any case 
 bind his principal. See ante, pp. 189, 190. 
 
316 TIME TEE ESSENCE OF THE CONTRACT. 
 
 (b) He is riot bound unless in the words of the Conveyancing Act, 
 1882, s. 3 (1) (ii.) :— " In the same transaction, with respect to which a 
 question of notice to the purchaser arises, it has come to the know- 
 ledge of his counsel, as such, or of his solicitor or other agent, as such, 
 or would have come to the knowledge of his solicitor, or other agent, 
 as such, if such inquiries and inspections had been made as ought 
 reasonably to have been made by the solicitor or other agent." This 
 sub-section is a legislative reversal of Hargraves v. Rothwell (1 Keen, 
 160). 
 
 Thus in In re Cousins (31 Ch. D. 671) Cousins, in 1875, mortgaged 
 his share in certain trust property to Pepper, but the deed did not dis- 
 close any previous charge. In 1881, Pepper's executors gave notice of 
 this mortgage to Cousins' trustees. Prior to 1875 Cousin's share had 
 been mortgaged, and a solicitor named Banks had acted professionally 
 for all parties in all these matters. The Court did not impute con- 
 structive notice of the prior charges to Pepper from the fact that 
 Banks bad acted as solicitor throughout, and as Pepper's executors 
 had been the first to give notice, his charge was entitled to priority. 
 
 Chitty, J., in delivering judgment, said that in order that the 
 knowledge of the solicitor may be imputed to the client, (1) "it 
 must be in the same transaction ; (2) the matter must come to his 
 knowledge; and (3) must come to his knowledge as such, viz. as 
 solicitor for the mortgagee.'' 
 
 Time the Essence of the Contract. 
 
 TILLEY v. THOMAS. 
 
 (L. R. 3 Ch. 61.) 
 
 Principle. Time is not of the essence of a contract unless it is 
 
 made so either by the express stipulations between the 
 parties, the nature of the property, or the surrounding 
 circumstances. 
 
 ■Summary 
 of facts. 
 
 Charles Thomas agreed to purchase a lease of a house 
 from J. J. Tilley, " possession to be given " on a certain 
 day. Tilley, who knew that Thomas required the house 
 for immediate residence, tendered possession on the day 
 named, which Thomas refused to accept, on the ground 
 
TIME TEE ESSENCE OF TEE CONTRACT. 317 
 
 that Tilley had failed to show a good title. Tilley com- 
 menced a suit for specific performance, alleging that 
 he had since deduced a good title. The Court of Appeal 
 dismissed the suit with costs. 
 
 In the leading case the Court of Appeal held that possession meant Possession 
 possession after showing title (compare Boehm v. Wood (1 Jac. & W. defined. 
 419)), and confirmed and applied the rule previously laid down by Lord 
 Justice Turner in Roberts v. Berry (3 D. M. & Q-. 284). Lord Cairns ex- 
 pressed that rule as follows : — "A Court of Equity will indeed relieve Time is the 
 against and enforce specific performance notwithstanding a, failure to essence ln 
 keep the dates assigned by the contract, either for completion or the 
 steps towards completion, if it can do justice between the parties, and if, 
 as Lord Justice Turner said in Roberts v. Berry, there is nothing in the 
 ' express stipulations between the parties, the nature of the property, 
 or the surrounding circumstances ' which would make it inequitable to 
 interfere with and modify the legal right. This is what is meant, and 
 all that is meant, when it is said that in equity time is not of the 
 essence of the contract. Of the three grounds against interference 
 mentioned by Lord Justice Turner, ' express stipulations * requires no 
 comment. The 'nature of the property ' is illustrated by the cases of 
 reversions, mines, or trades. The ' surrounding circumstances ' must 
 depend on the facts of each particular case." 
 
 Sect. 25 of the Judicature Act, 1873, provides that stipulations Judicature 
 in contracts as to the time or otherwise which would not before the -°-°*- 
 commencement of this Act have been deemed to be or to have become 
 of the essence of such contract-in a Court of Equity, shall receive in 
 all Courts the same construction and effect as they would have hereto- 
 fore received in equity. See Noble v. Edwardes, Edwardes v. Nolle 
 (5 Cb. D. 378). 
 
 A stipulation that time is the essence of the contract, Hudson v. Express- 
 Bartram (3 Madd. 440), that the agreement shall be void or voidable, stipula- 
 or that the buyer will not buy in case some term is not performed on 
 a fixed day, Williams v. Edwards (2 Sim. 78) : Eipwell v. Knight 
 (1 Y. & C. Ex. 401) ; Eudson v. Temple (29 Beav. 536) ; Parian v. 
 Thorold (2 Sim. N.S. 1, 7), is construed literally. 
 
 The following are some of the principal cases in which, from the Surround- 
 nature of the property or other circumstances, time has been con- ingcircnm- 
 sidered of the essence of the contract : — A reversion, on the ground s ances > 
 
 ,,. 3. net iiQtiJi 6 
 
 that it might become an estate in possession during the delay, and f the 
 that its sale is general evidence of pressing want of money : Newman property, 
 v. Rogers (4 Bro. 0. C. 390) ; Spurrier v. Eancock (4 Ves. 667) ; 
 Eipwell v. Knight (1 Y. & C. Ex. 401) ; a life annuity or a life estate, 
 which may determine by the death of the cestui que vie : Withy v. 
 Cottle (T. & E. 78) ; where the property was of a wasting character, 
 
318 TIME THE ESSENCE OF TEE CONTRACT. 
 
 Tendency 
 
 of modern 
 
 decisions, 
 
 especially 
 
 where 
 
 trade is 
 
 •concerned. 
 
 Notice. 
 
 as e.g. a leasehold for a short unexpired term : Hudson v. Temple (29 
 Beav. 536, 543) ; where the property was of fluctuating value : e.g. 
 foreign stock of varying value ; Doloret v. Rothschild (1 S. & S. 590) ; 
 coal : Pollard y. Clayton (1 K. & J. 462) ; where the purchaser required 
 the property in order to erect a cotton mill : Wright v. Howard (1 S. & 
 S. 190), or for some other immediate purpose, as in Qedye v. Duke of 
 Montrose (26 Beav. 45) and the leading case ; or the vendors wanted 
 the money to take out a patent, as in Payne v. Bonner (15 L. J. Oh. 
 227) and in cases of reversions (supra); where the vendors were a 
 fluctuating hody (e.g. a dean and chapter), so that delay might give 
 the purchase-money to persons other than those who signed the 
 contract : Carter v. Dean of Ely (7 Sim. 211) ; or where delay might 
 shift the burden from purchaser to vendor, as in a contract by a 
 tenant to sell on Lady Day : Coslake v. Till (1 Euss. 376) ; in notices 
 to shareholders of default in payment of calls : Sparks v. Liverpool 
 Waterworks (13 Ves. 428) ; in an option to retire from a company : 
 Houldsworth v. Evans (L. R. 3 H. L. 263) : Stewarts case (L. E. 1 
 Ch. 511) ; in options to purchase : Brooke v. Qarrod (3 K. & J. 608) ; 
 Austin v. Tawney (L. E. 2 Ch. 143), and the like : Darnley v. London, 
 Chatham, and Dover Railway Co. (1 D. J. & S. 204, L. E. 2 H. L. 
 43). 
 
 " The tendency of modern decisions has been to hold persons con- 
 cerned in contracts relating to land bound, as in other contracts, to 
 regard time as material, and this principle has been applied with the 
 greater strictness where the property was connected with tbe trade : " 
 Dart's V. & P. 6th ed., vol. i. p. 484. It is obvious that many of the 
 cases mentioned above, such as Wright v. Howard, Payne v. Bonner, 
 came under this heading, as well as under the heading under which 
 they have been arranged. We may add contracts for the sale of mines 
 and works : Parker v. Frith (1 S. & S. 199, n.) ; and for the sale of 
 a public-house as a going concern : Weston v. Savage (10 Ch. D. 736) ; 
 Day v. LuhJce (L. E. 5 Eq. 336); Cowles' v. Gale (L. E. 7 Ch. 12); 
 Coslake v. Till (ubi supra). 
 
 In Reuter v. Sala (4 C. P. D. 239) the Court of Appeal regarded 
 time as the essence of a contract for the purchase of pepper for a 
 certain day. " It was argued," said the Court, " that the rules of 
 Courts of Equity are now to be regarded in all Courts, and that equity 
 enforced contracts, though the time fixed therein for completion had 
 passed. This was in cases of contracts such as purchases and sales 
 of land, where, unless a contrary intention could be collected from the 
 contract, the Court presumed that time was not an essential con- 
 dition. To apply this to mercantile contracts would be dangerous 
 and unreasonable : " per Cotton, L.J. (p. 249). 
 
 Though time is not originally of the essence of the contract, it may 
 be made so by notice. The law on this subject is thus stated by 
 Lord St. Leonards in his Vendors and Purchasers, 14th ed. p. 268 : 
 " When time is not made of the essence of a contract by the con- 
 tract itself, although a day for performing it is named, of course 
 
TIME TEE ESSENCE OF THE CONTRACT. 319 
 
 neither party can strictly make it so after the contract ; hut, if either 
 party is guilty of delay, a distinct written notice by the other, that he 
 shall consider the contract at an end if it be not completed within 
 a reasonable time to be named, would be treated in equity as binding 
 on the party to whom it is given." Where time is not originally of 
 the essence of a contract for the sale of land, it will be made so by 
 notice if there has been some default or unreasonable delay by the 
 other party : Parkin v. Thorold (16 Beav. 59) ; Green v. Sevin (13 
 Ch. D. 589). In Lee v. Soames (59 L. T. 366) there was no unreason- 
 able delay on the part of the vendor, but at the date of the contract 
 the vendor had not power to sell the estate ; the purchaser on discover- 
 ing that this was the case, named a week within which the vendor 
 should obtain the concurrence of the parties really entitled, under 
 penalty of rescission. It was held that he was entitled to rescind the 
 contract on non-compliance by the vendor with the terms of this 
 notice. 
 
 In Ealten v. Russell (38 Oh. D. 334) a contract for sale of land 
 fixed a day for completion, time not being of the essence of the con- 
 tract. A defect of conveyance merely and not of title made it 
 impossible to complete on the day fixed. The purchaser was not 
 allowed to repudiate until he had given the vendor notice to remove 
 the defect within a reasonable time, and the vendor failed to do so. 
 Compare Stewart v. Smith (6 Ha. 222, n.). 
 
 The notice must fix a reasonable time. In Crawford v. Toogood Reasonable 
 (13 Ch. D. 153), where the abstract was complicated five weeks during time - 
 the long vacation was not so regarded. In Parkin, v. Thorold (16 
 Beav. 59) fourteen days was unreasonable. In Machryde v. Weekes (22 
 Beav. 533), a month ; in Compton v. Bagley ([1892] 1 Ch. 313), 
 fourteen days was held reasonable ; in these two cases there were 
 commercial reasons why the delay should be short. 
 
 If the party makes default after notice given, damages for breach of Damages, 
 contract are recoverable from him ; and if he be the vendor the deposit 
 will be returned plus 4 per cent, interest, and costs incurred by the 
 purchaser in respect of the abortive sale, e.g. costs of investigating 
 title : Compton v. Bagley (ubi supra). See ante, pp. 281, 283, 284. 
 
320 INJUNCTION. 
 
 Injunction. 
 
 DAY v. BROWNRIGG. 
 
 (10 Ch. D. 294.) 
 
 GASKIN v. BALLS. 
 
 (13 Ch. D. 324.) 
 
 NORTH LONDON RAILWAY CO. v. GREAT 
 NORTHERN RAILWAY CO. 
 
 (11 Q. B. D. 30.) 
 
 Principle. ' The effect of sect. 25, sub-sect. 8, of the Judicature 
 
 Act, 1873, with regard to injunctions has not been to- 
 give any nevj rights to parties who had previously no 
 rights enforceable at law or in equity, but simply to 
 enable the High Court without being hampered by its 
 old rules, to grant an injunction whenever it is just 
 or convenient so to do, for the purpose of protecting or 
 asserting the legal rights of the parties. 
 
 Summary I n t^ e fi rst °f these cases the plaintiffs alleged that 
 of facts. their house had been called " Ashford Lodge " for sixty- 
 years, and that the defendant, whose adjoining house had 
 been called " Ashford Villa " for forty years, had recently 
 changed its name to "Ashford Lodge," and that this 
 caused considerable expense, damage, and annoyance to 
 the plaintiffs. The Court of Appeal decided that there 
 was no case for an injunction. 
 
 In the second case defendant purchased part of an 
 estate which was subject to restrictive covenants against 
 building beyond a certain line. Some buildings had 
 been erected by his predecessor, but there had been 
 
cases dis- 
 cussed. 
 
 INJUNCTION. 321 
 
 acquiescence for five years, and the defendant after his 
 purchase erected further buildings beyond the line, and 
 continued to build despite the plaintiff's protest. The 
 plaintiff then commenced an action, and applied for a 
 mandatory injunction to have all the buildings removed. 
 The Court of Appeal granted a mandatory injunction 
 as to buildings erected after the time when the defendant 
 had acquired his title, but refused to interfere with the 
 other buildings. 
 
 In the third of these cases the Court refused to issue 
 an injunction to restrain a party from going on with an 
 arbitration which might be futile, vexatious, and cause 
 delay. 
 
 These cases have been grouped together as settling the principles by Principle 
 which the Court is now governed as to the exercise of its jurisdiction of the three 
 with regard to injunctions. The 25th section of the Judicature Act, 
 1873 (sub-sect. 8), provides (inter alia) that an injunction may be 
 granted 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 uncon- 
 ditionally or upon such terms as the Court shall think just. Having 
 regard to the transfer of existing jurisdictions to the High Court of 
 Justice under sect. 16 of the Judicature Act, 1873, and to the 
 principle omne majus continet in se minus, this rule applies a, fortiori 
 to final injunctions : Beddow v. Beddow (9 Ch. D. 89, 93). In all 
 three leading cases the Court was pressed by the argument that the 
 effect of this section of the Judicature Act was to extend the 
 principles upon which the Court proceeded in granting injunctions, 
 and in all of them the Court declined to extend its jurisdiction beyond 
 the point to which it had been carried by cases decided before the 
 Judicature Act. 
 
 In the first of the leading cases, Day v. Brownrigg, the Court of No in- 
 Appeal said there was no authority for the proposition that a man had junction 
 a legal right to the use of any name he chose to affix to any part of his a S aln ^ a 
 landed property, whether consisting of a house or land, and that " this conveni- 
 Court can only interfere where there is an invasion of a legal or equit- ence, 
 able right." 
 
 In Street v. Union Bank of Spain and England (30 Ch. D. 156) 
 the Court, following Day v. Brownrigg, declined to grant an in- 
 junction to restrain the use of a cypher telegraphic address — the case, 
 in its opinion, being not one of legal injury, but simply of incon- 
 venience. 
 
322 
 
 INJUNCTION. 
 
 nor against 
 breaches of 
 covenant 
 acquiesced 
 
 nor against 
 
 persons 
 
 acting 
 
 without 
 
 authority. 
 
 Applica- 
 tion for 
 injunction. 
 
 Breach of 
 injunction. 
 
 In the second leading case, Gashin v. Balls, the Court of Appeal 
 considered that it would be going further than any decided case to 
 enforce the covenant against the defendant in respect of acts done 
 before he became owner, and without any complaint at the time. 
 " In the matter of injunctions," Thesiger, L.J., said, the Judicature 
 Act " has done nothing to alter the principles which have been laid 
 down as to the exercise of its powers, where principles have been 
 established as being just and convenient.'' 
 
 In the third leading case, N. L. B. Co. v. Great N. R. Co., the Court 
 of Appeal refused an injunction on the ground that the defendants 
 were not inflicting on the plaintiffs that which the law considers a 
 wrong, and explained Jessel's (M.E.) dicta in Beddovj v. Beddow to 
 mean that " if there is either a legal or an equitable right which is 
 being interfered with, or which the Court is called upon to protect, 
 and the circumstances do not render it inconvenient or unadvisable 
 to interfere, but render it convenient and advisable to interfere, the 
 Court may protect that right by giving the remedy which previously 
 would not have been given, namely, an injunction.'' Compare L.J. 
 Davey's judgment in Harris v. Beauchamp ([1894] 1 Q. B. 801, 809). 
 " Those well-known words" ("just or convenient ") " do not confer an 
 arbitrary or unregulated discretion on the Court, and do not authorize 
 the Court to invent new modes of enforcing judgments in substitution 
 for the ordinary modes." The only novelty introduced was, according 
 to Lord Esher, in N. L. B. Co. v. Great N. B. Co. a novelty in the 
 matter of procedure not of jurisdiction (p. 36); the new procedure 
 being due, according to Cotton, L.J., to the extension of the procedure 
 of any one Court to the High Court, which " amalgamates in itself all 
 the jurisdictions which had previously existed." 
 
 It was held in London and Blackwall Bailway Co. v. Cross (31 
 Ch. D. 354), following the leading case of N. L. B. Co. v. G. N. B. Co., 
 that the Court has no general jurisdiction to restrain persons from 
 acting without authority, and accordingly an injunction to restrain 
 a person from taking proceedings out of Court in the name of a person 
 who had given no authority to use it, was refused. " The very first 
 principle of injunction law," said LiDdley, L.J., "is that prima facie 
 you do not obtain injunctions to restrain actionable wrongs, for which 
 damages are the proper remedy." 
 
 An application for an injunction may be made by the plaintiff 
 either ex parte or on notice. If by any other party (see Carter v. Fey 
 ([1894] 2 Ch. 541)), then on notice to the plaintiff, and at any time 
 after appearance by the party who makes the application (R. S. 0., 
 1883, 0. l. r. 6). It must relate to or arise out of the matter before 
 the Court (?'&.). Reversioners may bring such action where there is 
 damage to the reversion : May/air Property Co. v. Johnston ([1894] 
 1 Ch. 508) ; Meux Brewery 'Co. v. City of London Electric Lighting 
 Co. ([1895] 1 Ch. 287, 317), where the cases are referred to. 
 
 In order to justify a committal for breach of an injunction the order 
 need not be served if the respondent had notice of it aliunde and 
 
INJUNCTION. 323 
 
 knew that the plaintiff intended to enforce it : United Telephone Co. 
 v. Bale (25 Ch. D. 778). Notice may be given by telegram, but the 
 Court will decide whether under the circumstances the party had in 
 fact notice of the injunction : In re Bryant (4 Ch. D. 98) ; Ex parte 
 Langley, In re Bishop (13 Ch. D. 110) ; Avory v. Andrews (51 L. J. 
 (Ch.) 414). 
 
 The nature of an interlocutory injunction is illustrated by Preston Interlocu- 
 v. Luck (27 Ch. D 497), where, there being prima facie a contract, \ 0X J I . Q ~ 
 the Court of Appeal thought it right to keep things in statu quo till • ,unc ' 
 the hearing. The Court is not deciding upon the rights of the parties, 
 but must " be satisfied that there is a serious question to be tried," 
 and "a probability that the plaintiffs are entitled to relief:" per 
 Cotton, L.J. (p. 506). 
 
 In cases where damage may be occasioned to the defendant, in the Under- 
 event of an interim injunction proving to have been wrongly granted, takingasto 
 the Court will require the plaintiff to enter into an undertaking to J lama S^f 
 abide by any order it may make as to damages ; secus where the can t for 
 interim injunction is in its nature final : Fenner v. Wilson ([1893] interim in- 
 2 Ch. 656). The undertaking as to damages is not to be confined J urLCtlon - 
 to damages sustained by the party against whom the injunction is 
 granted : Tucker v. New Brunswick Trading Go. of London (44 
 Ch. D. 249). 
 
 It was laid down in Griffith v. Blake (27 Ch. D. 474, 477), dis- 
 senting from the dictum in Smith v. Day (21 Ch. D. 421), that when- 
 ever the usual undertaking is given, and the plaintiff ultimately fails 
 on the merits, the rule, in the absence of special circumstances, is to 
 grant an inquiry as to damages, though the plaintiff was not guilty of 
 any misrepresentation, suppression, or other default in obtaining the 
 injunction. As to a married woman's undertaking, see Hunt v. Hunt 
 (54 L. J. (Ch.) 289). 
 
 If an undertaking is offered in lieu of injunction, applicant for an Undertak- 
 injunction will continue his application at his own cost : Jenkins v. in g in l ieu 
 Hope ([1896] 1 Ch. 278). tf on nJUnC " 
 
 The measure of damages is discussed in Mansell v. British Linen 
 Co. Bank ([1892] 3 Ch. 159). Damages. 
 
 It was held in Wimbledon Local Board v. Croydon Rural Sanitary Motion to 
 Authority (32 Ch. D. 421), distinguishing Bolton v. London School discharge. 
 Board (7 Ch. D. 766), that a motion to discharge an ex parte injunction 
 obtained by misrepresentation is proper, though the injunction is 
 about to expire. 
 
 A jurisdiction which is exercised by the Court with caution is that Mandatory 
 of granting a mandatory injunction, the effect of which is not to order injunction. 
 the performance of a positive act, but to direct that things should be 
 restored to their former condition. When a defendant after receiving 
 or evading notice of motion or writ of summons to. restrain building 
 endeavours to anticipate the order of the Court by hurrying on work, 
 whatever he erects may be ordered to be pulled down at once without 
 regard to the ultimate result of the action : Gaskin v. Balls (supra) ; 
 
324 
 
 INJUNCTION. 
 
 Arbitra- 
 tors. 
 
 Clubs. 
 
 Company. 
 
 Husband 
 and wife. 
 
 Illegal 
 injuries. 
 
 Daniel v. Ferguson ([1891] 2 Ch. 27) ; Lawrence v. Horton (62 L. T^ 
 749); Von Joel v. Hornsey ([1895] 2 Ch. 774). 
 
 The Court has no general jurisdiction to restrain persons from acting- 
 without authority, and will not grant an injunction to restrain a party 
 from proceeding with an arbitration in a matter beyond the agreement 
 to refer, though the proceedings may be futile and vexatious : London 
 and Blackwall Bailway Co. v. Cross (31 Ch. D. 354); Farrar v. 
 Cooper (44 Ch. D. 323). An injunction may, however, be obtained 
 against an arbitrator on the ground of corruption or obvious unfit- 
 ness: Malmesbury Railway Co. v. Budd (2 Ch. D. 113); Beddow 
 v. Beddow (9 Ch. D. 92) ; Pescod v. Pescod (58 L. T. 76) ; but see 
 Jackson v. Barry Bailway Co. ([1893] 1 Ch. 238, 246) : and, where- 
 the agreement to arbitrate is impeached, Kitts v. Moore ([1895] I 
 Q. B. 253). 
 
 The Court will not interfere against the decision of the members of 
 a club professing to act under their rules, unless it can be shown' 
 either that the rules are contrary to natural justice, or that what has 
 been done is contrary to the rules, or that there has been mala fides or 
 malice in arriving at the decision : Hopkinson v. Marquis of Exeter 
 (5 Eq. 63); Fisher v. Keane (11 Ch. T). 353); Dawkins v. Antrdbus 
 (17 Ch. D. 615); Ldbouchere v. Lord Wharncliffe (13 Ch. D. 346). 
 The Court will not grant an injunction in the case of a proprietary 
 club : Baird v. Wells (44 Ch. D. 661). 
 
 A company in voluntary liquidation may be restrained from dis- 
 tributing its assets among its shareholders without providing for future 
 liabilities under a lease : Gooch v. London Banking Association (32" 
 Ch. D. 41); compare In re Panther Lead Co. ([1896] 1 Ch. 978). 
 Proceedings against a company before a magistrate may be restrained 
 pending the hearing of a petition for winding up: In re Briton, etc., 
 Assurance Association (32 Ch. D. 503). See Seton, 5th ed. pp. 593- 
 610). 
 
 Where proceedings were pending between husband and wife for 
 divorce or judicial separation, and the parties were living apart, an 
 interim injunction was granted to restrain the husband from going to. 
 the wife's house settled to her separate use : Symon v. Eallett (24 
 Ch. D. 346). Where alimony is claimed a husband may be enjoined 
 from dealing with bis property : Waterhouse v. Waterhouse ([1893] 
 P. 284) ; Newton v. Newton ([1896] P. 36) ; secus Carter v. Carter 
 ([1896] P. 35). 
 
 An injunction lies against trades-unionists who maliciously induce 
 an employer's contractees to break their contracts, Temperton v. Russell 
 ([1893] 1 Q. B. 715), or maliciously induce an employer to dismiss his 
 employees, Flood v. Jackson ([1895] 2 Q. B. 21) (now under appeal). 
 An interlocutory injunction was granted against picketing in Lyons 
 v. Wilkins ([1896] 1 Ch. 811). The motive to injure and the injury 
 must be apparent (compare Bowen v. Hall (6 Q. B. D. 333), and cases 
 cited there) ; but the object must also be illegal. Thus in Mogul S. &. 
 Co. v. McGregor ([1892] A. C. 25), shipowners were allowed to com- 
 
INJUNCTION. 
 
 325 
 
 common 
 law. 
 
 bine for the purpose (inter alia) of dismissing agents who worked for 
 ■ethers, and raising the freight of shippers who shipped with others, on 
 the ground that they acted without malice and bona fide in pursuance 
 of a legal object (the supposed interests of trade) ; and, similarly, 
 strikes for higher wages are lawful at common law as well as by 
 statute : per Lord Bramwell (ib. p. 47) ; and, similarly, in Mayor, etc., 
 of Bradford v. Pickles ([1895] A. C. 587) a landowner was allowed 
 to do what he would with his own, although he meant mischief to his 
 neighbour. And see Chaffers v. Coldsmid ([1894] 1 Q. B. 186, 191). 
 
 Where a lecture is delivered to an audience limited and admitted by Lectures 
 ticket, an injunction may be obtained to restrain the publication of etc > at 
 notes taken: Nicols v. Pitman (26 Ch. D. 374), following Abernethy ™™ mm 
 v. Hutchinson (3 L. J. Ch. (0. S.) 209 ; 1 H. & T. 28) ; Caird v. 
 Sime (12 App. Cas. 326). Similarly the Court will restrain tbe 
 publication of any valuable information, e.g. of tape-prices communi- 
 cated to a limited public for a limited purpose : Exchange Telegraph 
 •Co. v. Gregory & Co. ([1896] 1 Q. B. 147). 
 
 In Pope v. Curl (2 Atk. 341), Lord Hardwicke granted an injunc- Letters, 
 tion to restrain tbe sale of a book entitled " Letters from Swift, Pope, etc., at 
 and others; " and an injunction was granted in The Earl of Lytton v. 
 Devey and Swan Sonnenschein & Co. (52 L. T. 121), where the law 
 was summed up as follows : — " The law upon the subject is plain, and 
 has existed long before the case of Pope v. Curl was decided, and has 
 existed ever since — -namely, that the property in letters remains in 
 the person to whom they are sent. The right to retain them remains 
 in the person to whom tbe letters are sent, but the sender of the letters 
 has still that kind of interest, if not property, in the letters which 
 gives him a right to restrain any use being made of the communica- 
 tions which he has made in the letters so sent by him. . . . But there 
 as one qualification, one exception it may be said, to that general 
 principle, which I have just stated; that is, if the letters contain 
 materials which it is necessary for the sendee — if I may use such a 
 word — to use for his own justification, or for vindicating his character 
 from any charges which are brought against him." And the Court 
 will restrain the publication of confidential information obtained 
 •during service : Tuck v. Priester (19 Q. B. D. 629) ; Merryweather v. 
 Moore ([1892] 2 Ch. 518) (drawings); Lamb v. Evans ([1893] 1 Ch. 
 218) (advertisements) ; or indeed any use of it not intended by the 
 master: Louis v. Smellie ([1895] W. N. 115); Robb v. Green ([1895] 
 2 Q. B. 315) — a case which is on the borderland between these cases 
 and Trego v. Hunt ; ante, p. 302. 
 
 It was held in Prudential Assurance v. Knott (L. R. 10 Ch. 142) Libel 
 that an injunction could not be granted to restrain the publication of 
 a libel, but the law on this point has long been altered. 
 
 But the Court will not grant an interlocutory injunction when 
 defendant swears that he can justify, or where the case is not so clear 
 that the Court would set aside a verdict to the contrary as unreasonable : 
 Bonnard v. Perryman ([1891] 2 Ch. 269), and cases cited there: 
 
326 
 
 INJUNCTION. 
 
 Slander. 
 Light. 
 
 Mortgage. 
 
 Negative 
 stipula- 
 tion. 
 
 Patents, 
 trade 
 marks, etc 
 under 
 statute, 
 
 Monson v. Tussauds ([1894] 1 Q. B. 671) ; or unless there is im- 
 mediate and pressing injury to person or property : Salomons v. Knight 
 ([1891] 2 Ch. 294). Compare Collard v. Marshall ([1892] 1 Ch. 571) ; 
 Trollope v. London Building Trades Federation (12 T. L. K. 373) 
 (trades' union cases). Most, but not all, of these cases (e.g. Monson 
 v. Tussauds) were " trade libels." A trade libel must be distinguished 
 from a puff: Mellin v. White ([1895] A. C. 154). Oral slander was 
 restrained in Hermann Loog v. Bean (26 Oh. D. 306). 
 
 In Parker v. First Avenue Hotel Co. (24 Ch. D. 282, 288), it was 
 held that a building may obstruct the light coming to a window if it 
 permits the light to fall on the window at an angle of 45°, but that 
 the question of obstruction is to be determined by the evidence in 
 each case : City of London Brewery Co. v. Tennant (L. R. 9 Ch. 212) ; 
 HacJcett v. Baiss (L. E. 20 Eq. 497); Theed v. Bebenham(2 Ch. D. 
 165). In Holland v. Worley (26 Ch. D. 578), the Court exercised its 
 discretion in awarding damages in lieu of injunction, and took into 
 consideration the circumstance that the property was situated in the 
 centre of London ; but this case was not followed in Greenwood v. 
 Hornsey (33 Ch. D. 471) ; Martin v. Price ([1894] 1 Ch. 276). 
 
 An injunction in favour of an unfinished house was granted in 
 Collis v. Laugher ([1894] 3 Ch. 659). 
 
 The Court will only grant an interlocutory injunction restraining 
 the mortgagee from exercising his power of sale if the mortgagor pays 
 into Court the amount sworn by the mortgagee to be due for principal, 
 interest, and costs. But if the Court sees that the amount alleged cannot 
 be due : Hickson v. Barlow (23 Ch. D. 690) ; or if the mortgagee was, 
 at the time of taking the mortgage, solicitor of the mortgagor, the Court 
 will fix the amount to be paid in : Macleod v. Jones (24 Ch. D. 289). 
 
 An injunction may be granted to restrain the breach of a negative 
 stipulation, although the contract was a contract for service or some 
 other contract of which specific performance would not be granted : 
 Bonnell v. Bennett (22 Ch. D. 835), following Burnley v. Wagner 
 (1 D. M. & G. 604) ; but the negative contract must be express and 
 severable : Whitwood Chemical Co. v. Hardman ([1891] 2 Ch. 416) ; 
 Ryan v. Mutual Tontine, etc., Association ([1893] 1 Ch. 116) ; but see 
 Be Mattos v. Gibson (4 De Gr. & J. 276) (charter party). A contract 
 was held affirmative in form though negative in substance in an 
 exceptional case : Wolverhampton, etc., Railway Co. v. London & 
 N. W. B. Co. (16 Eq. 433) ; and vice versa, Bavis v. Forman ([1894] 
 3 Ch. 654). 
 
 The principle applicable to granting interlocutory injunctions under 
 the Patents, Besigns, and Trade Marks Act, 1883 (46 & 47 Vict. c. 
 57, s. 30), was stated by Jessel, M.R., in Budgeon v. Thompson (30 
 L. T. 244) as follows : — " The Court can grant an interlocutory in- 
 junction before the hearing where the patent is an old one and the 
 patentee has been in long and undisturbed enjoyment of it, or where 
 its validity has been established elsewhere and the Court sees no 
 reason to doubt the propriety of the result, or where the conduct 
 
INJUNCTION. 
 
 327 
 
 of the defendant is such as to enable the Court to say that as against 
 the defendant himself there is no reason to doubt the validity of the 
 patent." 
 
 By sect. 32 of the Patents, Designs, and Trade Maries Act, 1883, 
 threats by circular advertisements or otherwise to take legal pro- 
 ceedings for the alleged infringement of a patent may be restrained by 
 injunction, unless there was an actual infringement, and unless the 
 person who threatens proceeds with an action for infringement with 
 due diligence : Kensington, etc., Electric Lighting Co. v. Lane Fox 
 Electrical Go. ([1891] 2 Oh. 573) ; Johnson v. Edge ([1892] 2 Ch. 1), 
 commenting on Challender v. Boyle (36 Oh. D. 425); Skinner & Go. 
 v. Shew ([1893] 1 Ch. 413 ; [1894] 2 Oh. 581). 
 
 Independently of statute, the Court will restrain the use of marks 
 and names calculated to mislead the public : Reddaway v. Banham 
 (74 L. T. 289) ; Powell v. Birmingham Vinegar Brewery (12 T. L. R. 
 310), where Lindley, L.J., reviews all the authorities. Compare 
 Rockingham Railway Co. v. Allen (12 T. L. E. 345). 
 
 In order that the Court may grant an injunction on the ground 
 of interference with personal comfort, there must, as was said in 
 Walter v. Selfe (4 De Gr. & S. 323), " be an inconvenience materially 
 interfering with the ordinary comfort, physically, of human existence ; 
 not merely according to elegant and dainty modes and habits of 
 living, but according to plain and sober and simple notions among the 
 English people." 
 
 If the nuisance arises as a necessary consequence of the proper 
 exercise of statutory powers or provisional orders of the Board of 
 Trade, etc., it will not be restrained : Hammersmith Railway Go. v. 
 Brand (L. R. 4 H. L. 171) ; Metropolitan Asylum District v. Sill 
 (6 App. Cas. 193), and cases there referred to ; London, Brighton, and 
 S. C. Railway Go. v. Truman (11 App. Cas. 45) ; Evans v. Manchester, 
 Sheffield, and Lincolnshire Railway Go. (36 Oh. D. 626); Harrison v. 
 Southwark, etc., Water Go. ([1891] 2 Ch. 199, 409) ; National Telephone 
 Co. v. Baker ([1893] 2 Ch. 186) ; Rapier v. London Tramways Co. 
 ([1893] 2 Ch. 588). 
 
 Where the joint acts of two persons constitute a nuisance — although 
 their separate acts may or may not be a nuisance — an action for 
 injunction will lie against both : Thorpe v. Brumfltt (L. R. 8 Ch. 650), 
 or each : Lambton v. Mellish ([1894] 3 Oh. 163) ; if the claim is also 
 for damages they cannot be joined as co-defendants: Sadler v. Great 
 Western Railway Co. ([1895] 2 Q. B. 688) ([1896] W. N. 57). 
 
 A crazy partner will be restrained from interfering with the part- 
 nership, for dissolving which there is a lis pendens, J. v. S. ([1894] 3 
 Ch.72). 
 
 Where a statute creates a new offence and enacts a penalty, e.g. the 
 Copyright Act, 1842 (5 & 6 Vict. c. 100), the ancillary remedy by 
 injunction may be claimed as well as the penalty. There is no 
 copyright in racing tips and the like published in a copyrighted 
 newspaper : Chilton v. Progress Printing, etc., Co. ([1895] 2 Ch. 29) ; 
 
 and at 
 
 common 
 
 law. 
 
 Nuisance, 
 
 under 
 
 statutory 
 
 powers, 
 
 and by- 
 joint tort- 
 feasors. 
 
 Partner- 
 ship. 
 
 Penal 
 statute. 
 
 Copyright. 
 
328 
 
 INJUNCTION. 
 
 Water- 
 works. 
 
 Photo- 
 graphs. 
 
 Pictures. 
 
 Quia timet 
 action. 
 
 Quo war- 
 ranto, etc., 
 action?. 
 
 Railway- 
 company. 
 
 Restraint 
 of trade ; 
 restrictive 
 covenants. 
 
 Riparian 
 owner. 
 
 Solicitor 
 and client. 
 
 Waste. 
 
 but the practice of newspapers copying literary matter from one 
 another is no defence to an action of copyright : Walter v. Steinkopff 
 ([1S92] 3 Ch. 489), where the cases are collected. Information con- 
 tained in a directory or time table comes under the category of literary 
 matter, and is copyrighted : Kelly v. Morris (1 Bq. 697) ; Leslie v. 
 Young ([1894] A. C. 335). It was decided in Eat/ward v. Fast 
 London Waterworks Co. (28 Ch. D. 138), that the statutory remedy 
 by penalties provided by the Waterworks Clauses Act, 1847 (10 & 11 
 Vict. c. 17), had not ousted the jurisdiction of the Court to restrain 
 the company by injunction from cutting off the .supply of water. 
 
 In Pollard v. Photographic Co. (40 Ch. D. 345) an injunction was 
 granted to restrain a photographer, who had taken a negative likeness 
 of a lady in order to supply her with copies for money, from selling or 
 exhibiting copies. 
 
 Living pictures are not, Hanfstaengl v. Empire Palace ([1894] 2 
 Ch. 1), though pictures of living pictures may be, Eanfstaengl v. 
 Haines & Co. ([1895] A. C. 20), and the backgrounds are, Eanfstaengl 
 y. Empire Palace ([1895] W. N. 76), within the Copyright Acts. 
 
 In a quia timet action, i.e. an action to restrain an apprehended 
 injury, there must be proof that the apprehended damage is imminent, 
 and will, if it comes, be very substantial : Attorney- General v. Cor- 
 poration of Manchester ([1893] 2 Ch. 87) (small-pox hospital). 
 
 Injunctions have been granted where a quo warranto, Aslatt v. 
 Corporation, of Southampton (16 Ch. D. 143) ; Richardson v. Methley 
 School Board ([1893] 3 Ch. 510), or prohibition, Eedley v. Bates 
 (13 Ch. D. 498), but not where a mandamus, Attorney- General v. 
 Clerkenwell Vestry ([1891] 3 Ch. 527, 536), is the natural remedy. 
 These powers should be sparingly used: Stannard v. Vestry of St. 
 Giles (20 Ch. D. 190). 
 
 In Allgood v. Merrybent and Darlington Railway Co. (33 Ch. D. 
 571), the Court granted an injunction at the instance of an unpaid 
 vendor of lands to restrain a railway company from running trains 
 over the land — and this notwithstanding the probable inconvenience 
 to the public, who were treated as having no rights as such against 
 an unpaid vendor. 
 
 The law as to covenants in restraint of trade and restrictive 
 covenants has already been considered (ante, pp. 303, 306). 
 
 A lower riparian owner was held not entitled, in the absence of any 
 damage, to an injunction in respect of water which had been taken 
 from the river and returned unpolluted and undiminished: Kensit v. 
 Great Eastern Railway Co. (27 Ch. D. 122). 
 
 In Little v. Kingswood Colliery Co. (20 Ch. D. 733), an injunction 
 which had been granted to restrain a solicitor from acting for the 
 antagonist of his former client, was on appeal dissolved by consent, 
 the solicitor undertaking not to disclose his client's secrets; and see 
 In re Flint, Coppock v. Vaughan ([1885] W. N., p. 163). 
 
 See as to injunction in respect of waste, ante, pp. 108 et seq., under the 
 leading case of Baker v. Sebright. 
 
RECEIVER — EQUITABLE EXECUTION. 329 
 
 Receiver — Equitable Execution. 
 
 ANGLO-ITALIAN BANK v. DAVIES. 
 
 (9 Ch. D. 275.) 
 
 Ex parte EVANS, In re WATKINS. 
 (13 Ch. D. 252.)J 
 
 SALT v. COOPEE. 
 
 (16 Ch. D. 544.) 
 
 The Judicature Act, 1873, has much enlarged the Principle. 
 powers of the Court as to appointing a receiver. A 
 judgment creditor may obtain equitable execution against 
 the debtor's equitable interest in land by the appointment 
 of a receiver without commencing a fresh action, and 
 without suing out a writ of elegit. 
 
 In the first of these cases a judgment creditor, who Summary 
 could not get possession of the land under a writ of elegit 
 as the legal estate was outstanding in a mortgagee, 
 commenced a fresh action in the Chancery Division to 
 enforce his judgment, and obtained the appointment of 
 a receiver. The Court leant to the opinion that the 
 appointment might be made on motion in the action in 
 which the judgment was obtained. 
 
 In the second case the judgment creditor obtained in 
 a subsequent action the appointment of a receiver without 
 suing out a writ of elegit. It was held that the appoint- 
 ment operated as a delivery of the land in execution, 
 although the receiver had not given security, and consti- 
 tuted the creditor a " secured creditor " in the bankruptcy 
 of the debtor. 
 
 In the third case it was held that so long as final 
 
330 BECEIVER — EQUITABLE EXECUTION. 
 
 judgment in an action is unsatisfied, the action is " a 
 cause or matter pending" within the meaning of the 
 Judicature Act, so that equitable execution will be granted 
 on motion made in the original action after final 
 judgment. 
 
 Appoint- 
 meDt of 
 receivers. 
 
 Judicature 
 Act, 1873, 
 B . 25, sub- 
 sect. 8. 
 
 27 & 28 
 Vict. c. 112. 
 Judgments 
 Act, 1864. 
 
 Receivers are not appointed of a debtor's property generally : Hamil- 
 ton v. Brogden ([1891] W. N. 14). 
 
 Receivers of specific property of a debtor were appointed by the 
 Court of Chancery "in aid of a judgment at law, where the plaintiff 
 showed that he had sued out the proper writ of execution and was 
 met by certain difficulties arising from the nature of the property, 
 which prevented his obtaining possession at law : " per Davey, L. J., 
 Harris v. Beauchamp ([1894] 1 Q. B. 801, 809) ; e.g. a legal estate 
 outstanding or even a prior estate in land: In re Jones and Judg- 
 ments Act, 1864 ([1895] W. N. 123) ; or a mere lien, Levasseur v. 
 Mason ([1891] 2 Q. B. 73). 
 
 Sect. 25, sub-sect. 8, of the Judicature Act, 1873, provides (inter alia) 
 that a receiver may be 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 unconditionally or upon such terms and conditions 
 as the Court shall think just. The common question raised in all 
 these three cases was, what effect did this provision have upon the 
 Judgments Act ? 
 
 The first section of the Judgments Act (27 & 28 "Vict. c. 112) 
 provides that " No judgment, statute or recognizance to be entered up 
 after the passing of this Act, shall affect any land (of whatever tenure) 
 until such land shall have been actually delivered in execution by 
 virtue of a writ of elegit or other lawful authority, in pursuance of 
 such judgment, statute or recognizance.'' It had been decided by the 
 Court of Appeal in Hatton v. Haywood (L. E. 9 Ch. 229), that the 
 order of a Court appointing a receiver amounted to a delivery in 
 execution within the meaning of the words " other lawful authority," 
 that is to say, it was " an equitable execution." And the Judicature 
 Act, 1873, has not altered the character of the remedy. True, this 
 rule in Hatton v. Haywood will not apply where execution " is not 
 to be followed up by any further step in favour of the creditor : " In 
 re Dickinson (22 Q. B. D. 187) (stock in trade) ; Tyrell v. Painton 
 ([1895] 1 Q. B. 202) (equitable reversionary personalty) ; compare 
 Flegg v. Prentis ([1892] 2 Ch. 428) ; but this presumably was always 
 the case : In re South (L. R. 9 Ch. 369). The old weapon is simply 
 put into different hands; and it may only be used where it was used 
 before, and so as to produce similar effects. See e.g. Holmes v. 
 Millage ([1893] 1 Q. B. 551), and see Harris v. Beauchamp, cited 
 ante, p. 322. 
 
RECEIVER — EQUITABLE EXECUTION. 331 
 
 In considering the question whether it is just and convenient that 
 a receiver should be appointed, the Court must have regard to (a) the 
 amount of the debt, (6) the amount which the receiver will probably 
 recover, (c) the costs of his appointment (R. S. C, 1883, Order l., r. 
 15(a)). 
 
 Passing to the separate points decided in each case, the opinion 
 expressed in the first formed the groundwork of the judgment in the 
 third leading case and was followed in Smith v. Cowell (6 Q. B. D. 75). 
 In Ex parte Evans, the Court definitely decided that the issue of a 
 writ of elegit in the case of an equitable interest in the land was, as Lord 
 Cottenham had said in Neate v. Duke of Marlborough (3 My. & C. 
 407), " a useless, absurd, and idle form, and wholly unnecessary now 
 there is only one system of judicature." In Salt v. Cooper Jessel, 
 M.R., adopted a view as to how loDg an action is pending which was 
 adopted under different circumstances in In re Claggett (20 Ch. D. 637). 
 In In re Radcliffe, de-ceased (7 Ch. D. 733), Jessel, M.R., said that 
 the only way to prevent an executor from preferring a creditor, was 
 for the plaintiff in an administration action, upon issuing the writ, 
 immediately to apply for and obtain a receiver. The authority of 
 this dictum, however, was doubted by the Court of Appeal in Phillips 
 v. Jones (28 Sol. J. 360). No charge will be created on money in 
 an executor's hands by the appointment of a receiver in an action to 
 which the executor is not a party : In re Potts ([1893] 1 Q. B. 648) ; 
 and a similar rule applies, mutatis mutandis, to realty : In re Shep- 
 Tiard (43 Ch. D. 131). Money in the hands of a receiver of a deceased 
 person's estate is subject to the same liabilities as if it had been in the 
 hands of executors : In re Eoare ([1892] 3 Ch. 94). For appointment 
 of such receivers, see In re Wells (45 Ch. D. 569). 
 
 It is not the modern practice as formerly to allow the receiver to 
 carry on an action in the name of a bankrupt executor or adminis- 
 trator : In re Hopkins, Dowd v. Eawtin (19 Ch. D. 61). 
 
 Debenture holders of a charge on the business or even property, 
 Makins v. Percy Ibhotson ([1891] 1 Ch. 133) ; In re Henry Pound, etc. 
 (42 Ch. D. 402) ; In re Joshua Stubbs ([1891] 1 Ch. 475), can obtain the 
 appointment of a receiver-manager if the security is in jeopardy, even 
 before default is made : Edwards v. Standard B. S. Syndicate ([1893] 
 1 Ch. 574) ; McMahon v. North Kent Ironworks Co. ([1891] 2 Ch. 148) ; 
 secus if the debentures are provisional, Thorne v. Nine Reefs (67 L. T. 
 
 93), or in a public undertaking, Blaker v. Herts Waterworks Co. (41 
 Ch. D. 399), but see Barflett v. West Metropolitan Tramways Co. 
 
 ([1893] 3 Ch. 437), or if such appointment would be futile : Mercantile 
 
 Investment Co. v. River Plate Trust Co. ([1892] 2 Ch. 303). 
 Directors' fees are not a proper subject for a receiver : Hamilton v. 
 
 Brogden ([1891] W. N. 36). 
 
 A receiver will not be granted of a partnership in order to enforce 
 
 a debt — if one of the partners is an infant, because such receiver could 
 
 not have been appointed before the Judicature Act, 1873 : Harris v. 
 
 Beauchamp Brothers ([1894] 1 Q. B. 801). 
 
 " Just and 
 conveni- 
 ent." 
 
 The lead- 
 ing cases. 
 
 Adminis- 
 tration 
 actor or 
 executor. 
 
 Debenture 
 holders. 
 
 Directors. 
 Infant. 
 
332 RECEIVER — EQUITABLE EXECUTION. 
 
 Judgment 
 debtor. 
 
 Lessee 
 tenant for 
 life. 
 
 Lunatics. 
 
 Married 
 woman's 
 property. 
 
 Mortgagee. 
 
 Receiver 
 and mana- 
 ger. 
 
 Keceipt of 
 rents in 
 foreclosure 
 action. 
 
 Equitable execution was also granted by the appointment of a 
 receiver against debts due to a judgment debtor to which garnishee 
 proceedings were not applicable, e.g. taxed costs directed to be paid to 
 a solicitor out of a fund standing in the Palatine Court : Westhead v. 
 Riley (25 Cb. D. 413) ; but not where such proceedings are applicable, 
 Manchester, etc., Banking Co. v. Parkinson (22 Q. B. D. 173) ; nor 
 against the debtor's future earnings unless he has assigned or charged 
 them : Holmes v. Millage ([1893] 1 Q. B. 551). 
 
 In In re Fowler, Fowler v. Odell (16 Ch. D .723), the tenant for life 
 of leasehold houses had been allowed to receive the rents, and as the 
 houses were not kept in repair according to the covenants in the lease, 
 the Court, at the instance of one of the trustees, appointed a receiver 
 for the purpose of keeping the houses in repair. 
 
 For lunatics, see Lunacy Eules, 1890, r. 83. A lunatic's committee 
 is not, like a receiver and manager, personally liable to contractees : 
 Isaacs v. Chinery (74 L. T. 320). 
 
 The mode of enforcing a claim against trie separate property of a 
 married woman is to obtain equitable execution by an order appoint- 
 ing a receiver or directing the trustees to pay. Such an order may be 
 obtained in an action brought for that purpose, or, where proceedings 
 are already pending without any fresh action : In re Peace and Waller 
 (24 Ch. D. 405, 407) (see Order). Compare Fuggle v. Bland (11 
 Q. B. D. 711), followed in Tyrell v. Painton ([1895] 1 Q. B. 202), and 
 see ante, pp. 101, 106. 
 
 The Court may appoint a receiver even in cases where the mortgagee 
 has power to appoint a receiver under the Conveyancing Act, 1881, s. 
 19: Tillett v. Nixon (25 Ch. D. 238); In re Pryiherch (42 Ch. D. 
 590). Independently of statute a legal mortgagee could never obtain 
 the appointment of a receiver. His duty was to take possession him- 
 self if he wanted it, and he was not entitled to have another person 
 put in to act for him when he could take possession for himself: per 
 North, J. (ib. 601). 
 
 In Pease v. Fletcher (1 Ch. D. 273) a receiver was appointed over the 
 whole property comprised in the plaintiffs mortgage as to part of 
 which the plaintiff was legal and as to part equitable mortgagee. 
 
 Where a mortgage includes the business as well as the place of 
 business, a receiver and manager may be appointed : County of 
 Gloucester Bank v. Rudry, etc., Co. ([1895] 1 Ch. 629) : Campbell v. 
 Lloyd's Bank ([1891] 1 Ch. 136, n.). Similarly with a mortgage of an 
 hotel with its goodwill and licenses : Truman & Co. v. Redgrave (18 
 Ch. D. 547) (see order) ; secus where the business, etc., is not included : 
 Whitley v. Challis ([1892] 1 Ch. 64) ; Marshall v. South Staffordshire 
 Tramways Co. ([1895] 2 Ch. 36). He is personally liable to con- 
 tractees : Burt v. Bull ([1895] 1 Q. B. 276) ; contrast Owen v. Cronk 
 ([1895] 1 Q. B. 265). 
 
 Where rents are received by a receiver in a foreclosure action 
 between date of certificate and date fixed for redemption, a further 
 account will be ordered and further time given (a month) to the 
 
RECEIVER — EQUITABLE EXECUTION. 333 
 
 mortgagor to redeem : Jenner-Fust v. Needham (32 Ch. D. 582); but 
 this rule was relaxed in Ellenor v. Ugle ([1895] W. N. 161), where 
 the amount received was small. This case was followed in Peat v. 
 Nicholson (34 W. R. 451), and distinguished in Ingham v. Sutherland 
 (63 L. T. 614) and in Coleman v. Llewellin (34 Oh. D. 143), which 
 case North, J., declined to follow in ChestonY. Wells ([1893] 2 Ch. 151). 
 As to occupation rent payable by mortgagor in possesion to receiver, 
 see Yorkshire Banking Co. v. Mullan (35 Ch. D. 125). 
 
 Pensions of officers being inalienable cannot be so taken : Lucas v. 
 Harris (18 Q. B. D. 127) ; Crowe v. Price (22 Q. B. D. 429). 
 
 See as to appointment of receiver in partnership actions, Lindley on 
 Partnership, 5th ed. p. 545 et seq., where it is pointed out that a 
 receiver, unless he is also appointed manager, has no power to carry on 
 the business, and attention is directed to the distinction between cases 
 in which there is a contest between partners or late partners, and 
 cases in which the contest is between partners or late partners on the 
 one side and non-partners on the other. See Partnership Act, 1890, 
 s. 23 ; see also Taylor v. Neate (39 Ch. D. 538) and Niemann v. 
 Niemann (43 Ch. D. 198). 
 
 The existence of an agreement to refer disputes to arbitration will 
 not deter the Court from appointing a receiver and manager on the 
 winding up of a partnership : Pini v, Roncoroni ([1892] 1 Ch. 633). 
 A solvent partner will be appointed receiver and manager in prefer- 
 ence to a nominee of the trustee in bankruptcy of his partner: 
 Collins v. Barker ([1893] 1 Ch. 578). 
 
 In In re E.'s Estate, H. v. H. (1 Ch. D. 276), where the form of 
 order is given, the defendant, a trustee, being on the eve of bank- 
 ruptcy, a, receiver was appointed on an ex parte application before 
 service of the writ. 
 
 In In re Coney (29 Ch. D. 993) the Court appointed a receiver of 
 the equitable interest of a defaulting and absconding trustee. In this 
 case a,fl.fa. might have been available. 
 
 In Colebourne v. Colebourne (1 Ch. D. 690) it was said that if the 
 appointment of a receiver is the substantial object of the aclion, the 
 endorsement of the writ should claim it, but this is not essential : 
 Norton v. Cover ([1877] W. K, p. 206) ; Salt v. Cooper (ubi supra). 
 A receiver may be appointed in a proceeding commenced by origi- 
 nating summons : Gee v. Pell (35 Ch. D. 160) ; Weston v. Levy ([1887] 
 W. N. 76), either in Court or in Chambers, and whether before or 
 after the hearing in Chambers : In re Francke (58 L. T. 305). 
 
 Except as above, and in certain special cases, a receiver is always 
 appointed by the C. D. on motion in Court, by the Q. B. D. on sum- 
 mons in Chambers ; but no appointment will be made ex parte except 
 in very special circumstances : Taylor v. Eckersley (2 Ch. D. 302). 
 
 A receiver is a trustee of money in his hands : Seagram v. Tuck (18 
 Ch. D. 296). 
 
 The practice with regard to the security, etc., where receivers are 
 appointed, is contained in R. S. C, Order l., r. 15a et seq. See notes 
 to r. 10 in the Annual Practice, 1896. 
 
 Officer's 
 pensions. 
 
 Partner. 
 
 Trustee. 
 
 Endorse- 
 ment of 
 writ. 
 
 Originat- 
 ing sum- 
 mons. 
 
 Motion or 
 summons. 
 
 Keceiver's 
 
 security, 
 
 etc. 
 
Interim 
 receiver. 
 
 Registra- 
 tion. 
 
 Contempt. 
 
 334 PRACTICE UNDER THE JUDICATURE ACTS. 
 
 A receiver is not duly constituted until he has given security : 
 Edwards v. Edwards (2 Ch. D. 291). Accordingly, in pressing cases, 
 an interim receiver may be appointed without security: Taylor v. 
 Eckersley (2 Ch. D. 302). 
 
 In order that the appointment of a receiver may affect land, it 
 must be registered under the Land Charges Registration and Searches 
 Act, 1888 (51 & 52 Vict. c. 51), s. 5, at the office of the Land 
 Registry, in the name of the person whose land is affected by the writ 
 or order registered. Registration of a writ or order is effective for five 
 years from its date, and may be renewed for a similar period. Sect. 
 6 protects purchasers for value against unregistered writs and orders 
 (as to previous law, see In re Pope (17 Q. B. D. 743)) ; but preserves the 
 effect of registration of a Us pendens. As to vacating registrations, 
 see Settled Land Act, 1890, s. 19. And see Wolstenholme and Brin- 
 ton's Conveyancing Acts, etc., 7th ed. 
 
 Interference with the possession of a receiver is a contempt of 
 Court, which may be punished by committal or restrained by injunc- 
 tion: Eelmore v. Smith (2) (35 Ch. D. 449). 
 
 Practice under the Judicature Acts. 
 
 NEWBIGGIN-BY-THE-SEA GAS COMPANY v. 
 ARMSTRONG. 
 
 (13 Ch. D. 310.) 
 
 NURSE v. DURNFORD. 
 
 (13 Ch. D. 764.) 
 
 Principle. WJiere no rule of practice is laid down by the orders 
 
 under the Judicature Acts, and there is a variance 
 between the former practice of the Courts of Chancery 
 and Common Law, that practice which is considered 
 by the Court to be the better and more convenient is to 
 prevail. 
 
 Summary l n both these cases solicitors had commenced actions 
 without the authority of the persons whose names were 
 
PRACTICE UNDER TEE JUDICATURE ACTS. 
 
 335 
 
 employed as plaintiffs. The actions were dismissed, and 
 the solicitors, in accordance with the practice which had 
 previously prevailed at common law, were ordered to 
 pay all costs, the costs of the plaintiff as between solicitor 
 and client, and the costs of the defendants as between 
 party and party. 
 
 This article will be divided into three parts : I. cases where the 
 Chancery Division has borrowed from common law procedure and 
 vice versa; II. where the procedure, being originally derived from 
 equity, equitable precedents have with necessary modifications pre- 
 vailed ; III. where the Chancery and other procedure have continued 
 to flow in different channels. 
 
 I. The two leading cases are the most conspicuous examples of adop- 
 tion by the Chancery Division of Common Law instead of Chancery 
 methods. Jessel, M.R., pointed out in the first leading case that 
 according to the established practice of the Court of Chancery, recog- 
 nized by the Court of Appeal in Palmer v. Walesby (L. E. 3 Ch. 732), 
 the defendant was left to " get his costs from the person named as 
 plaintiff, who had afterwards to get those costs over from his solicitor. 
 The result was that the nominal plaintiff, who had never given any 
 authority for the use of his name, had to pay the defendant's costs, 
 and might be unable to recover them by reason of the insolvency of 
 his solicitor." 
 
 "The question is, which practice is now to be followed. Since the 
 passing of the Judicature Act that must he left to the Court to 
 determine. By the 21st section of the Judicature Act, 1875, it is 
 enacted that in cases where no new method of procedure is prescribed 
 the old practice is to prevail, but where there is a variance in the 
 practice it does not say which practice. I have no hesitation in saying 
 that I think the common law practice in this case is founded in natural 
 justice, and ought to he followed in the future," and he accordingly 
 rejected the rule in equity and adopted the common law rule. A 
 similar order, as to which see Nurse v. Durnford (p. 768), was 
 made in John Morley Building Co. v. Barras ([1891] 2 Ch. 386, 
 394). 
 
 In In re Savage (15 Ch. D. 557), Jessel, M.E., though under the 
 circumstances he made no order in favour of the applicants as to costs, 
 stated the general rule to he that a solicitor who acted without authority 
 should be made to pay the costs. 
 
 The following are cases in which actions were commenced without 
 authority of the plaintiffs : — 
 
 In Schjott v. Schjott (19 Ch. D. 94) a next friend commenced an 
 action without the authority of the married woman for whom he acted. 
 The practice usual in the case of infants was adopted, and the action 
 
 Three 
 classes of 
 
 I. Unautho- 
 rized use 
 by solicitor 
 of name of 
 a plaintiff. 
 
 Former 
 
 common 
 
 law and 
 
 Chancery 
 
 practice 
 
 contrasted. 
 
 Common 
 law 
 
 practice 
 adopted. 
 
 Cases 
 where the 
 leading 
 cases were 
 followed. 
 
336 PRACTIOE UNDER TEE JUDICATURE ACTS. 
 
 Endorse- 
 ment of 
 conse- 
 quences. 
 
 Arbitra- 
 tion. 
 
 Counsel's 
 consent. 
 
 Ne exeat 
 regno. 
 
 was dismissed with costs against the next friend's solicitor (see 
 DanielPs Chancery Forms, p. 42). Here there was, strictly speaking, 
 no plaintiff. 
 
 In In re Scholes and Son (32 Ch. D. 245), following Wray v. Kemp 
 (26 Ch. D. 169), a country solicitor was duly retained by a client and 
 duly employed London agents. The latter put their name on the 
 writ as principals. It was held that proceedings initiated by them 
 were initiated without authority from the client. Here a small technical 
 defect vitiated the London agent's authority to act for the plaintiff. 
 
 And for the case of solicitors commencing proceedings on behalf of 
 a lunatic, where they suspect but have no knowledge that he is a 
 lunatic, and is therefore incapable of authorizing them to institute 
 proceedings in his name, see In re 0. Armstrong and Sons ([1896] 1 
 Ch. 536). 
 
 In Thomas v. Palin (21 Ch. D. 360), Jessel, M.B., said : " According 
 to the old Chancery practice it was necessary that the copy served of 
 every order requiring a thing to be done within a limited time should 
 have an indorsement telling the person who was required to obey the 
 order the consequences of not obeying it.'' At common law there was 
 no indorsement, " and a man had to look out for himself as regards a 
 fi.fa. or any other process for disobedience." It was decided to transfer 
 the common law practice to Chancery practice on two grounds : first, 
 it was wrong to have a different practice in different Divisions in a 
 matter like this, " for to do so would upset the whole scheme of the 
 Act ; " secondly, it was a superfluous practice : " every man served with 
 an Order of Court must know that it is not brutum fulmen." 
 
 In Mercier v. Pepperell (19 Ch. D. 58) the practice as to arbitration 
 in the Chancery Division was stated thus by Chitty, J. : " In my 
 opinion I shall do right to follow the common law practice by adapting 
 it to the ordinary mode of procedure in the Chancery Division :" and 
 it was accordingly held that grounds of objection must be specified in 
 a motion to set it aside. See Arbitration Act, 1889 (52 & 53 Vict. 
 c. 49). 
 
 In Harvey v. Croydon Union Rural Sanitary Authority (26 Ch. D. 
 249) the practice of the Queen's Bench Division was adopted, viz. that 
 where a consent to an order is given by counsel with the authority ot 
 his client, it cannot arbitrarily be withdrawn, though if there be 
 mistake, surprise, or any sufficient ground, an application may be 
 made to set it aside. See In re West Devon Great Consols Mine 
 (38 Ch. D. 51) ; Lewis's v. Lewis (45 Ch. D. 281) ; Elsas v. Williams 
 (52 L. T. 39). 
 
 In modern times the writ ne exeat regno has been only known as the 
 Chancery equivalent for common law arrest on mesne process ; which 
 it has so to speak shadowed. This peculiarity of Chancery procedure 
 — its tendency to imitate what it supplements — has been already ex- 
 emplified in Partition actions, pp. 4, 122. Accordingly, when the Debtors 
 Act, 1869, s. 6, confined arrest on mesne process to cases where the 
 debtor was about to abscond, the Courts of Equity would probably have 
 
PRACTICE UNDER TEE JUDICATURE ACTS. 337 
 
 said : " As our process of ne exeat regno is only issued because the debt 
 is equitable, we must not issue it except where the Common Law 
 Courts would issue process in case of legal debts." Whether it would 
 have reasoned thus was never decided, because the first case on the 
 subject arose in 1879, Drover v. Beyer (13 Ch. D. 242) ; and in this 
 case the Chancery Division of the High Court had regard to the general 
 scope and spirit of the Judicature Acts, and cut its cloth so as to 
 fit the skrunken arm of the common law. 
 
 In La Orange v. M c Andrew (4 Q . B. D. 210) the rule of equity was 
 adopted, and the Divisional Court dismissed the action where the 
 plaintiff had failed to comply with an order requiring him to give 
 security for costs, without requiring the defendant to first abandon the 
 order for security for costs. 
 
 In Walmsley v. Mundy (13 Q. B. D. 807) a mortgagee moved for 
 the discharge of a receiver who had been appointed by the Q. B. D. 
 " without prejudice to prior incumbrances." The Court referred it to 
 a Master to report on the validity of the mortgage, and on bis finding 
 that it was invalid, the Court declined to review the evidence before 
 the Master, and refused the motion ; but the Court of Appeal held that 
 the practice of the Chancery Division ought to have been followed and 
 the evidence reviewed. 
 
 In Andrews v. Barnes (39 Cb. D. 133) it was decided that the Court 
 of Chancery had unfettered discretion in granting costs as between 
 solicitor and client. When the nature of the action is equitable a 
 similar power is perhaps vested in all branches of the Court, and is 
 certainly possessed by the Chancery Division. In exercising these 
 powers the Q. B. D. would probably be guided by the practice which 
 prevailed in the Court of Chancery. 
 
 II. Most of the new powers conferred by the Judicature Act upon 
 every Division of the High Court were adopted or adapted from equit- 
 able inventions. Receivers, injunctions, and procedure under the 
 Married Women's Property Act, 1882, s. 17, have already been dis- 
 cussed ; but discovery, whether by interrogatories or by inspection of 
 documents, remains to be discussed. 
 
 Discovery was of the very essence of a bill for relief in equity ; but 
 was almost unknown at common law before Lord Brougham's Act 
 (14 & 15 Vict. c. 99, s. 6) and the Common Law Procedure Act, 1854; 
 and the chief exception was in those rare cases where the Common Law 
 Courts imagined that they discerned a trust. Thus although essen- 
 tially equitable in its origin, it has drawn to itself in certain common 
 law actions a common law tradition. 
 
 At the present day the authorities establish three propositions — 
 
 (1) The Judicature Acts and Rules (Order xxxi.) have been substi- 
 tuted for the former practice, but in interpreting them the Ch. D. 
 and the Q. B. D. will, as a rule, be guided by Chancery precedents. 
 The proper practice as to the discovery of documents no longer 
 depends upon the Orders of the Court of Chancery or the Common Law 
 Procedure Acts, or the custom or practice of the Common Law Courts," 
 
 z 
 
 Q. B. D. 
 
 adopts 
 
 Chancery 
 
 practice. 
 
 II. Pro- 
 cedure 
 borrowed 
 from 
 equity. 
 
 Discovery. 
 
 Old 
 
 Chancery 
 interpreta- 
 tion of 
 new acts. 
 
338 PRACTICE UNDER TEE JUDICATURE ACTS. 
 
 Common 
 
 law 
 
 tradition 
 
 followed 
 
 at common 
 
 law. 
 
 Old 
 
 Chancery 
 practice 
 followed in 
 equity. 
 
 but on the Judicature Acts and Eules ; in which " the extended prin- 
 ciples of the Court of Chancery were followed rather than the narrower 
 practice of the Court of Common Law, which, however, was itself 
 derived from the practice in equity : " per Brett, L.J., in Jones v. 
 Monte Video Gas Co. (5 Q. B. D. 556) ; this case was decided on old 
 Chancery practice, " as the orders and rules under the Judicature Acts 
 were made in imitation of it " (i'6.). Compare Anderson v. Bank of 
 British Columbia (2 Ch. D. 644). 
 
 (2) In matters where the Common Law Courts have already 
 established a tradition, the Courts will have regard to it, if they con- 
 sider it reasonable. Thus the old practice has been followed in cases 
 where Chancery practice must be accommodated in order to suit 
 common law actions; when, so to speak, the Chancery idioms if 
 literally translated into the language of common law yield unsatis- 
 factory results. 
 
 Thus to take the simplest case conceivable : The practice in the 
 Chancery Division is that documents ought to be deposited at the 
 Central Office, and to allow them to be produced at the (London) 
 solicitor's office is an indulgence. The practice in the Queen's Bench 
 Division is that the (London) solicitor's office is the proper place of 
 production. It was suggested in Brown v. Sewell (16 Ch. D. 517) by 
 Sir George Jessel, that a rule ought to be made making the practice 
 of both Divisions uniform. No such rule, however, has yet been 
 issued. The reason for this rule is that the old Common Law Courts 
 had no place where the documents could be deposited, and was there- 
 fore obliged to make a free paraphrase, so to speak, of the Chancery 
 rule. Or to take a question more nearly affecting the rights of parties : 
 " In a large majority of cases at common law," said Mellish, L. J., " it 
 is not possible until the defence is delivered to tell whether interroga- 
 tories are material . . . the cases in which they would be allowed are 
 the more frequent in equity where the plaintiff wants an answer in 
 order to know how to amend his claim and to frame his case. These 
 cases very seldom occur at common law : " Mercier v. Cotton (1 Q. B. D. 
 442), a case in which the Court read old common law practice into 
 the new forms, applicable to a common law action of libel. Compare 
 for the practice in equity with regard to the relative order of particulars 
 and discovery : Waynes Merthyr Co. v. Radford & Co. ([1896] 1 
 Ch. 29). 
 
 (3) (a) Apparently rules of Chancery practice will still be followed 
 in equitable actions, although the Court sees no necessity why they 
 should continue to exist. This rule is illustrated by Lytll v. Kennedy 
 (8 App. Cas. 217). In that case plaintiff, who was assign of A. 
 Duncan, brought an action to recover possession of real estate, and 
 defendants claimed a possessory title. Plaintiff interrogated defendant 
 as to A. Duncan's pedigree, and as to alleged admissions by him that 
 he was A. Duncan's trustee or agent. Defendant refused to answer 
 these questions on the ground of privilege. In deciding against the 
 defendant the House of Lords reversed the decision of the Court of 
 
PRACTICE UNDER THE JUDICATURE ACTS. 339 
 
 Appeal, not however on the ground that this decision involved an 
 unjustifiahle anomaly. 
 
 Ordinary matters " were governed hy two cardinal rules : " " First Ordinary 
 the right as a general proposition of every plaintiff to a discovery of ru ' e - 
 the evidences which relate to his case, and secondly, the privilege of 
 every defendant to withhold a discovery of the evidences which 
 exclusively relate to his own : " per Lord Selborne (8 App. Cas. 225), 
 citing Wigram's Discovery, 2nd ed. p. 14 ; or, as the matter was 
 put in the subsequent case of Lyell v. Kennedy (2) (9 App. Cas. 81), 
 the defendant as well as the plaintiff is entitled "to search his 
 opponent's conscience and to inquire from him not only what he has 
 seen or known himself, hut all of which he has acquired knowledge 
 or belief from his agent." 
 
 This rule, however, is subject to three limitations — 
 
 1. A client has a privilege to prevent his legal adviser from dis- 
 closing any information which he obtains when so employed. 
 
 2. The privilege extends to all papers which the legal adviser has 
 prepared for his client. Your opponent has no right to say, " Show 
 me your brief." 
 
 3. Opinion and belief derived from privileged communications is 
 privileged. You cannot ask, " What is the belief which you have 
 derived from reading that brief? " It was pointed out, however, that 
 if a man has certain knowledge in the ordinary course of things inde- 
 pendently of his solicitor, he cannot claim privilege because he learnt 
 it also from his solicitor ; ex. gr. if he was told by his solicitor's brief 
 that a tombstone was in a certain place, and if he then went and saw 
 it, he could not claim privilege. Compare Wheeler v. Le Marchant 
 (17 Ch. D. 675); Learoyd v. Halifax, etc., Banking Co. ([1893] 
 1 Ch. 686) ; Minet v. Morgan (L. E. 8 Ch. 361), citing Lawrance 
 v. Campbell (4 Dr. 490). 
 
 But the Court of Appeal held that ejectment actions stood on Rule in 
 a footing of their own, and were not amenable to these cardinal e J e ^ tment 
 rules ; and they justified their opinions by declaring that in the 
 time when bills of discovery was the only relief of which common 
 law claimants to land could avail themselves, bills of discovery in aid 
 of an ejectment were unknown. 
 
 But although unknown to the Court of Appeal, Mr. MacClymont 
 knew of fifty-seven such bills in the time of Elizabeth, and others in 
 the time of Lord Nottingham ; and these cases induced the House of 
 Lords to abolish the inequality which was alleged to exist between 
 actions of ejectment and other actions. 
 
 The arguments for and against the conclusion depended on the right 
 answer to the question, What would the Chancery Court have done 
 two hundred or three hundred years ago ? 
 
 (V) Eule (a) is subject to an apparent exception. Thus, in cases Two 
 where a bill of discovery could not have been filed as principal relief, apparent 
 but discovery would have been granted as auxiliary relief, discovery exce P tlon 
 will be granted now. Suppose, however, discovery was claimed in 
 
340 PRACTICE UNDER THE JUDICATURE ACTS. 
 
 III. Pro- 
 cedure of 
 Chancery 
 Division 
 runs in a 
 
 groove. 
 
 Summary 
 proceed- 
 ings. 
 
 equity against a purchaser for value without notice, discovery would 
 be granted ; if claimed at law, a bill of discovery would not be granted. 
 In such cases equity will no longer regard this defence — purchase for 
 value without notice — as any defence to a claim for discovery, whether 
 such claim is made in an action in which the Chancery Court had 
 concurrent jurisdiction with the Common Law Courts (as in the case 
 of dower) or in any other action (e.g. ejectment) : Ind, Coope & Co. v. 
 Emmerson (12 App. Cas. 300). 
 
 (c) Eule (a) is subject to a second exception, in that an affidavit 
 of documents used formerly to specify the documents for which 
 privilege was claimed by describing them ; now it is sufficient to 
 specify them as " documents numbered 1 to 26," tied up in a bundle 
 marked " A," and initialled by the deponent, and to claim privilege : 
 Sudden v. Wilkinson ([1893] 2 Q. B. 432), following Morris v. 
 Edwards (15 App. Cas. 309), Ind, Coope & Co. v. Emmerson (12 
 App. Cas. 300), and the principle of cases like that of Hall v. 
 Truman, Hanbury & Co. (29 Ch. D. 307). That principle may 
 be stated thus : Formerly (some forty years ago) there used to be 
 an irregular war on the subject of interrogatories, so that every 
 motion day was skirmishing day. "That flourishing of weapons 
 before the parties got to the trial of a suit in equity became a most 
 formidable inconvenience" (ib. p. 313); and Order xxxi. expressly 
 authorizes the judges to prune this luxuriance of pugnacity. One 
 of the methods adopted is that which is illustrated by Budden v. 
 Wilkinson. 
 
 III. The third class, where the procedure of the Chancery Division 
 still runs in a separate groove, may be illustrated by summary 
 procedure. 
 
 Summary proceedings in the various Divisions have with few 
 exceptions run on parallel lines which never meet. Thus in the 
 Queen's Bench Division a single judge does not sit in Court to hear 
 motions, and although originating summonses under special Acts, 
 like the Married Women's Property Act, s. 17, TasJcer v. TasJcer 
 [1895] P. D. 1), or even under the Solicitor's Act, 1870, s. 8, In re 
 Howell Thomas ([1893] 1 Q. B. 670), are made from time to time 
 elsewhere than in the Chancery Division, and although Order liv. a, 
 authorizes any Division of the High Court to decide questions of 
 construction of a document on originating summons, the wholesale 
 substituiion of this form of procedure for proceedings commenced in 
 the ordinary way — by writ or petition — which has been the most 
 remarkable feature in Chancery practice since the Judicature Acts 
 has found no counterpart in the Queen's Bench and other Divisions. 
 
 Conversely the Chancery Division will not grant a rule nisi, and 
 has scarcely availed itself of the new summary procedure by Order in., 
 r. 6. Order xiv., r. 1, which has revolutionized procedure in the 
 Queen's Bench Division, although Order in., r. 6, includes liquidated 
 demands in money arising upon a trust : Hamilton v. Brogden (60 
 L. J. Ch. 88). The reason of this is probably to be sought in history. 
 
PRACTICE UNDER THE JUDICATURE ACTS. 341 
 
 The principles of our common law have only been expanded in 
 deference to those of law merchant, and Order xiv., r. 1, is directly 
 borrowed from the Summary Procedure on Bills of Exchange Act, 
 1855 (18 & 19 Vict. c. 67). Similarly, " Bill of Exchange Procedure" 
 ( Wechsel-prozess) has been generalized in Modern Germany into one, 
 but only one, of the main forms of summary procedure — "Bill of 
 Exchange and Formal Document (JJrhunden) Procedure;" the defini- 
 tion of formal documents being sufficiently elastic to cover any 
 contract-note signed by the contractor. Similarly, in Spain the 
 "executive action" (action ejecutiva) is a "Bill of Exchange and 
 Formal Document Procedure," formal documents being used in a 
 restricted sense. That is to say, in England and throughout Europe 
 (for law merchant is international) laws have been put in force which 
 throw the onus on defendant and not on plaintiff ; these laws, how- 
 ever, presuppose some formality which is in itself a fair substitute for 
 legal process. First, mercantile documents ; then (as in Spain) 
 public documents and the like; then (as in Germany) signed con- 
 tracts ; then (as in England) any contract for a definite amount. 
 Now, equity, from the beginning to the end of its career, has protested 
 against any and every formality ; has violated the sanctity of deeds ; 
 has driven a coach and four through the Statute of Frauds, claiming 
 to operate upon conscience ; and therefore it could not join in the new 
 movement without being false to its traditions. Perhaps this reason- 
 ing may be considered sentimental and historical, but it is difficult to 
 see what other explanation is possible. 
 
 To conclude, the effect of the Judicature Acts has been either to Summary 
 leave the Chancery Division and other Divisions to themselves, as of this 
 heretofore ; or to turn the Chancery Division into " predominant c h a r,ter 
 partner" whenever its inventions have been utilized ; or in a few minor 
 cases it has borrowed from its other partners, or vice versa, with mutual 
 acknowledgments and compliments, for which one must go to litera- 
 ture for a parallel. For it was thus that Dante in his Paradiso describes 
 a great Dominican, St. Thomas Aquinas, singing the praises of the 
 Franciscan methods, and a great Franciscan, St. Bonaventura, singing 
 the praises of Dominican methods of procedure. But perhaps it is far- 
 fetched to liken Sir G. Jessel to St. Thomas Aquinas, or Lord Esher 
 to St. Bonaventura, or the Supreme Court of Judicature to Paradise. 
 
INDEX. 
 
 ACCESSION, 272 
 
 ACCUMULATION, 
 
 maintenance and, 271-274: 
 
 See Maintenance 
 
 Thellusson Act applies to charities, 53 
 
 Thellusson Act and contingent gifts to a class, 274 
 
 amended, 274 
 Thellusson Act and will construed as one settlement, 116 
 title to, as between tenant for life and remainderman, 272 
 
 ACQUIESCENCE. Compare Ratification 
 general principle stated, 58, 61 
 breach of trust, 188 
 deed in fraud of creditors, 58 
 equitable estoppel, 81 
 
 by expectant heirs, only when expectancy falls into possession, 73 
 by landlord, 86 
 lien created by, 251 
 marital right barred by, 257 
 part performance allied to, 292 
 restrictive covenants are released by, 310, 321 
 by solicitor's client, or ward, or other person, 79 
 Statutes of Limitation have embodied, 188, 206, 207 
 by victim of mistake, 81, 82 
 See Ratification ; Laches 
 
 ADEMPTION, 8, 265 et seq. See Satisfaction 
 
 ADMINISTRATION OF ASSETS, 
 
 general personal estate, primary fund for payment of debts, 
 legacies and testamentary expenses, 235-239 
 unless expressly or implicitly exonerated, ib., 229-234, 236 
 order of application of assets in payment of debts, 236, 237 
 real estate in hands of executors, liability of for debts, 236, 237 
 specific and residuary devises, no distinction between, 233, 237 
 legacies and debts charged on real estate, 237 
 
344 INDEX. 
 
 ADMINISTRATION! OF ASSETS— continued. 
 
 charge of testamentary expenses, includes costs of administration 
 
 action, 238, 239 
 costs where real and personal estate administered, in same action, 
 
 ib., 239 
 Bee Locke King's Act ; Finance Act, 1894 
 
 ADMINISTRATION ACTION, 
 
 former practice as]to, completely changed, 275, 276 
 general effect of, on powers of trustees, 141-144 
 absent parties, practice as to, 278 
 claims adverse to the will, 277 
 costs, 239, 276, 280 
 
 direction in will to commence, 276, 277 
 foreign creditors, 278, 279 
 granted or refused, 276, 277 
 infant legatees, 275, 276 
 isolated question will not justify, 277 
 
 order for general administration must be made by judge io 
 person, 279 
 
 on further consideration, ib. 
 
 where no accounts are rendered, 276 
 orders by which changes made, 275, 276 
 
 effect of, statement of Court of Appeal as to, 276 
 title of, 278 
 wilful default, 277, 278 
 
 ADMINISTRATOR, 
 
 law as to right of retainer, 165-169. See Retainer 
 married women, 98, 102, 103 
 
 ADMISSION, 
 
 acknowledgment to take a claim out of the Statutes of Limitations- 
 must be meant as an, 209 
 
 ADVANCEMENT, 
 
 presumption of, 7 et seq. 
 
 Court in the position of a jury as regards evidence of, and will 
 
 consider all circumstances of the case, 8, 9 
 summary of law as to purchase in the name of another, by Jessel, 
 
 M.R., 7 
 doctrine applies where person in loco parentis, ib. 
 where purchase is by a mother, 7, 8 
 cases where presumption of, has been held to arise, 10 
 presumption rebutted by evidence of transfer for a limited 
 
 purpose, 10 
 e.g. banking convenience, qualification for office, etc., ib. 
 rules as to admissibility of evidence, 8, 9 
 not presumed by paying off charge on settled estate, 226 
 
INDEX. 345 
 
 AGREEMENT FOR A LEASE, 
 
 effect of Judicature Act, 1873, upon, 297 et seq. 
 
 case under Ground Game Act, 1880 .. 299 
 
 power of disclaimer under Bankruptcy Act, 1883, extends to, ib. 
 
 scale fee for preparation of, includes charges for lease, 299, 300 
 
 should specify date, 283 
 
 See Lease 
 
 ALIENS 
 
 may be trustees, 28 
 
 objection to their appointment, ib. 
 
 ALIMONY, 
 
 injunction pending claim for, 324 
 solicitors' lien in proceedings for, 175, 178 
 
 AMENDMENT, 
 
 leave for, refused, 17 
 
 summons for, of originating summons unnecessary, 205 
 of vendor and purchaser, summons by, substituting an originating 
 summons under the R. S. C, 1883 ..284 
 
 ANNUITY, 
 
 administration of assets and, 167, 236 
 conversion of wasting securities and, 134 
 insurance of life on which, depends, 252 
 jointress and Settled Land Acts, 116, 117 
 legacies include, 236 
 retainer of, 169 
 satisfaction of, 268, 270 
 valuation of, 167, 254 
 
 ANTICIPATION. See Restraint on Anticipation 
 
 APPEAL, 
 
 from originating summonses under R. S. O, 279, 280 
 vendor and purchaser summons, 283 
 
 APPOINTMENT OP NEW TRUSTEES. See Trustees, Appoint- 
 ment op 
 
 ARBITRATION, 
 
 agreement by partners to refer matters to, and receiver, 333 
 injunction against, 321, 324 
 practice as to and costs of, 176, 336 
 
 AUCTIONEER, 
 
 when held to be in a fiduciary relationship, 182, 185 
 
 particular lien of, 240 
 
 trustee may not make profit, 171 
 
346 INDEX. 
 
 B. 
 
 BAILEE, 
 
 mixing money with his own, 181, 184-186 
 
 BANK OP ENGLAND, 
 cannot be a trustee, 29 
 
 BANKER, 
 
 employed by trustee, 147 
 
 trust money deposited with, following of, 180, 181 
 
 rule in Clayton's case as between cestuis que trustent, 181 
 trustee may not make profit, 171 
 
 no fiduciary relationship between banker and customer, 16, 185 
 cases of fiduciary obligations between, 88, 182 
 
 BANKRUPT, 
 
 consent of, 283 
 
 executor or trustee, costs of, 289 
 
 lessee, relief to, 68 
 
 married woman, 99, 101 
 
 receiver where executor or trustee is, 331 
 
 surety, 246 
 
 trustee, appointment of, 28 
 
 BANKRUPTCY, 
 
 act of, creditors' trust deed is, 62 
 
 debt in, suretyship liability is, 247 
 
 order in, and administration, 101, 102, 167 
 
 preference of creditor void in, 62 
 
 proof of debts in and rectification, 89 
 
 provisions as to settlements, 58 
 
 See Trustee in Bankruptcy 
 
 BILL OP EXCHANGE, 
 
 donatio mortis causa of, 31, 32 
 See Cheque 
 
 BILLS OP SALE 
 
 cases relating to, 219-224 
 
 no consolidation in, 218 
 
 admission of external evidence, 221, 223 
 
 BOTTOMRY BOND, 242 
 
 BDILDING SOCIETY MORTGAGES, 
 rule as to legal estate, 215 
 
INDEX. 347 
 
 BUSINESS FOR GAIN, 
 defined, 42, 43 
 wider than trade, 41 
 
 0. 
 
 CHAMPERTY, 73 
 
 CHARITY 
 
 Chancery Division, jurisdiction of, as to, 52 
 Statutes relating to, 52, 53, 54 
 Commissioners, control of discretion of, 47, 53 
 
 powers of, 52, 53, 283 
 construction of gifts by will to, 45 
 definitions and illustrations, 51, 52 
 discretionary trust for, 144 
 marshalling in favour of, 242, 243 
 perpetuities allowed; distinction between conditions precedent 
 
 and subsequent attached to a perpetuity, 47, 48 
 scheme by Charity Commissioners, when set aside or remodelled, 47 
 scheme by Court must not conflict with Act or Charter, 45 
 See Cy-prJis ; Mortmain 
 
 CHEQUE, 
 
 non-merger of simple contract debt in judgment on cheque, 229 
 judgment on cheque not a bar to action on contract, 247 
 donatio mortis causa of, 31, 32 
 solicitor's lien over, 177 
 
 CHOSES IN ACTION, 
 
 assignment of, 26, 27, 215, 240, 253 
 
 CLUBS, 
 
 and injunctions, 324 
 
 COLLATERAL SECURITY, 
 
 action on, barred by statute, 207 
 
 against surety not barred by statute, 208 
 construction of contract as, 248 
 effect of judgment on, 247 
 not secondary, 232 
 
 COMPANIES, 
 
 amalgamation with other companies, 81, 254, 255 
 debentures of, 
 
 and bills of sale, 221 
 
 notice of issue of, and priority, 313 
 
348 INDEX. 
 
 COMPANIES— continued. 
 debenture-holders, 
 
 mortgage action by, 199 
 
 receiver or receiver and manager appointed by, 331, 332 
 mortgages or lien on shares of, 
 
 confirs usual remedies, 201 
 
 registration of, and effect of non-registration, 11-13 
 notice of unpaid calls of, 313 
 part performance applies to, 292 
 registration of companies for business involving gain, 41 
 
 land societies, held not to require registration, 43 
 
 loan society, when requiring registration and when not, ib. 
 
 mutual insurance societies, held to require, ib. 
 
 provision of Companies Act, 1862, as to, 41 
 aim and scope of the Act, ib. 
 
 effect of non-registration, 43 
 receiver and manager of, 331, 332 
 shareholder infant, 256 
 trustees' lien for payment of calls, 163, 250 
 ultra vires, 
 
 payment by directors does not bind, 83 
 
 relief against contracts, 81 
 
 restrictive covenants and, 310 
 winding up, 
 
 of foreign companies, 3 
 
 of illegal companies, 43 
 
 voluntary and injunction, 324 
 See Partnership 
 
 COMPEOMISE, 
 
 consent withdrawn, 296 
 
 duty of disclosure, 89, 296 
 
 married women restrained from anticipation, 104 
 
 mistake of fact contrasted with, 295, 296 
 
 mistake of law resembles, 81 
 
 solicitor's lien for action compromised, 175, 176 
 
 by trustee for benefit of estate, 163 
 
 of unlimited liability, 242 
 
 value imported by, 295, 296 
 
 See Counsel ; Family Arrangements 
 
 CONDITION, 
 
 appointment upon, how far good, 158, 159 
 
 donatio mortis causa, is upon, 34 
 
 election, 257, 261 
 
 gift void on, that married woman shall convey property subject to 
 
 restraint on anticipation, 104 
 letters, whether expressions in, amount to, 287-289 
 
INDEX. 349 
 
 CONDITION— continued. 
 
 precedent, not an act of part performance, 291 
 
 and subsequent in cases of charities, 48 
 a trust or direction, 21 
 
 CONDITIONS OF SALE, 
 
 constructive notice not given by notice of a deed in, 312, 314 
 express, required, that lessee may inspect lessor's title, 312 
 misleading, 283, 314 
 root of title, as to, in purchase by trustee, 151 
 
 discovery of defect prior to, 67, 86, 87, 283 
 that time shall be of essence of contract, 
 
 express, 317 
 
 implied, 317, 318 
 
 CONFIDENTIAL INFOEMATION, 
 
 injunction to restrain publication of, 325 
 
 CONFIBMATION. See Ratification 
 
 CONFLICT OF LAWS, 
 
 in administration actions, 1-5 
 
 foreign judgments, 278, 279 
 at common law, 
 
 transitory actions, 3 
 
 mixed actions, ib. 
 in company law, ib. 
 in equity, 
 
 land, 4 
 
 sovereign of foreign country, ib. 
 in Probate Division, 2 
 
 CONSOLIDATION OF MORTGAGES, 
 law as to, 216 et seq. 
 leaning of Court against, ib. 
 principle on which doctrine of, is based, 216 
 cases on, 217, 218, 246 
 
 costs of redemption action where no consolidation, 194 
 property to which it applies, 218 
 property must exist at date of, ib. 
 default must be made, ib. 
 election does not apply, ib. 
 inapplicable to bills of sale, ib. 
 when not implied since Conveyancing Act, 1881, s. 17 .. 218, 219 
 
 CONSTRUCTIVE TRUSTEE, 
 
 agents, generally, 14, 18, 181, 182 
 auctioneer, 17, 182, 185 
 banker, 16, 182, 185, 186 
 commission agent of principal, 182 
 
350 INDEX. 
 
 CONSTRUCTIVE TRUSTEE— continued. 
 
 commissions received or secret profits by agent, 79, 182, 183 
 
 director, 11, 16, 189 
 
 employee taking commission, 182, 183 
 
 fiduciary agents, 182 
 
 factor of commission agent of principal, 183 
 
 solicitor, 13, 14, 16, 17, 18, 182, 183 
 
 solicitor's partners, 17, 18 
 
 stockbrokers, 17, 182 
 constructive notice makes, 18 
 fraud makes, 15, 17 
 mortgagee is, of proceed of sale of mortgaged property, 188, 
 
 204,205 
 penal statutes and,' 12, 13, 17 
 
 primary and secondary liability of, and express trustee, 18 
 principal, where agent acts as, 17, 18 
 principle stated by Lord Cairns, 16 
 
 Lord Selborne, 15 
 James, L.J., 16 
 Stirling, J., 17 
 receiver is, 332, 333 
 
 Settled Land Acts make tenant for life, of powers, 117 
 Statute of Frauds, not within, 30, 292 
 Statute of Limitations, 1888, is within, 18, 187, 189 
 tenant for life under Settled Land Acts, 117 
 trustee de son tort, 15 
 vendor between date of contract and completion, 300 
 
 CONTINGENT REMAINDERS, 
 and executory devises, 273, 274 
 
 CONTRACT, 
 
 action for breach of, transitory, 3 
 
 contract debt barred by Statute of Frauds exists, 166, 290 
 
 consideration, 
 
 total failure of, 67 
 partial failure of, 64-66 
 
 See Marlborough, Duke of, In re, index of cases 
 quantum of, 
 
 in catching bargains, 70 et seq. 
 evidence of fraud, ib., 295 
 as a rule immaterial in equity, 28, 295, 304 
 construction of, is a question of law, 80, 81 
 equities, 
 
 derived from, 161, 192 
 distinct from, 216, 244, 307-309, 310 
 renounced by, 77, 129, 172, 173, 245, 248, 317 
 not to be renounced by, 64, 73, 86, 224 
 
INDEX. 351 
 
 CONTRACT— continued. 
 
 equity as a rule supports, 63, 64, 66, 70, 156 
 
 relieves, against penalties being construed as forfeitures, 63-69 
 
 See Penalty ; Forfeit ctre 
 against fraud, 54-58, 69-74. See Fraud 
 mistake, 84-90. See Mistake 
 time being construed as the essence, 317-319 
 undue influence, 75-79. See Undue Influence 
 refuses to enforce contracts for sale where no title, 67, 86, 
 87, 118, 283, 319 
 letters containing, 285 et seq. 
 negotiation distinguished from, 287 
 offer and acceptance, 286 et seq. 
 personal distinguished from continuing guarantees, and other 
 
 covenants, 248, 306, 308, 309 
 powers conferred by Conveyancing Act, 1881, ss. 14, 15, in- 
 destructible by, 68, 200 
 powers conferred by Settled Land Act indestructible by, 117 
 powers of appointment, 
 
 exercised subject to contract, when void, 159 
 contract to exercise by wills, ib. 
 salvage, distinguished from, 176 
 special contracts, 
 
 exclusive service, 304, 326 
 family arrangements, 293-297 
 of partnership, 41, 42 
 in restraint of trade, 303-306 
 restrictive, 306-311 
 of suretyship, 244-248 
 uberrima: fidei, 76, 247, 255, 296 
 
 CONTRIBUTION AMONO SURETIES, 
 law as to, 244-248. See Surety 
 
 CONVERSION, 127-132 
 principle of, ib. 
 effect of Ackroyd v. Smithson, 128 
 
 Steed v. Preece, ib. 
 arises in, administration action, 129, 131 
 agreement for purchase, 232 
 options to purchase, 131, 132 
 partition action, 130 
 partnerships, 129 
 exclusion by contract, 129 
 reconversion by election, 130, 131 
 
 on sale by Court or under Lands' Clauses Act, in cases of 
 disability, 130, 131 
 trust for, effect of, on construction of gift to a class, 273 
 
352 INDEX. 
 
 CONVERSION— continued. 
 
 trusts for, with power to retain investments, 139, 140 
 
 effect of, on tenant for life's interest. See Wasting Securities 
 of wasting securities, 132 et seq. See Wasting- Securities 
 
 COPYHOLDS, 
 
 liable for debts, 243 
 
 covenant to surrender equitable interest in, 27 
 
 partition of, 122 
 
 COPYRIGHT, 
 
 at common law, 325 
 
 under statute, 327, 328 
 
 advertisements, ib. 
 
 drawings, ib. 
 
 lectures, ib. 
 
 letters, ib. 
 
 living pictures and photographs, ib. 
 
 CORPORATION, 
 
 law as to trusteeship of, 28 
 
 CORRESPONDENCE, 
 
 acknowledgment by, 209 
 
 law as to contract by, 287-290 
 
 COSTS, 
 
 in action for administration, 239, 276, 280 
 
 to set aside unconscionable bargains, 73, 74 
 
 for partition, 126, 127 
 against funds of insurance company, 242 
 
 lessee seeking relief, 68 
 
 married woman, 101, 107, 108 
 
 solicitor of plaintiff, etc., 17, 335, 336 
 
 vendor in default, 319 
 as between solicitor and client, 337 
 provisions of Judicature Act and rules, as to, 164 
 mortgagee's, 191 et seq., 196, 197, 198 
 of payment into Court, 253 
 
 security for, under Conveyancing Act, 1881, s. 25 ..203, 204 
 under S. L. Acts, directions as to, 119, 121 
 
 of petition or summons, 120 
 solicitor's charge or lien for, 175-178 
 of solicitor-trustee, 170-173 
 of trustees', 163, 164 
 under V. and P. Act, 1874.. 281, 282 
 
 COUNSEL, 
 
 and client, 76, 77 
 
 direction to settle " as counsel shall advise " one, 37, 38 
 
INDEX. 353 
 
 COUNSEL— continued. 
 in Chambers, 280 
 constructive notice of, 316 
 effect of advice of, to trustees, 80, 81, 161 
 authority of, to consent or compromise, etc., 296, 336 
 written, 125 
 
 COUNTY COUET, 
 
 construction of agreements for lease of value exceeding £500, 
 
 299 
 foreclosure and redemption actions, powers of, in, 195 
 husband and wife, questions between, jurisdiction of, 98 
 infants' guardianship, questions as to, jurisdiction of, 93 
 proceedings in, under S. L. Acts, 121 
 
 COVENANTS. See Eesteictive Covenants 
 
 CREDITORS, 
 
 trust in fraud of. See Fraud on Creditors 
 presumptive, 54-58 
 trust deed for creditors is not, 61 
 trust deed for, 
 
 law as to, 59-62 
 
 does not of itself create a trust for any of the, 60 et seg. 
 only makes trustee an agent, 60 
 
 circumstances may create a valid trust for creditors, 
 60, 61 
 e.g. communication by agent, 61 
 until this, the deed is revocable, 61 
 general assignment for benefit of creditors, an act of bank- 
 ruptcy, 62 
 registration of, 62 
 
 CUSTODY OP CHILDREN, 91-95 
 
 CY-PRES, 
 
 doctrine of, when applied, to charities, 44 et seq. 
 
 reason for, which Court applies is change in habits, ideas, 
 and conditions, 45, 46, 47 
 a corollary from exemption of charities from rule 
 
 against perpetuity, 47, 48 
 uncertainty, 48, 49 
 and impossibility of execution, 49 
 application, also, to surplus income, 50 
 
 and to endowments, ib. 
 doctrine of cy-pres applied to construction of wills in other cases, 
 
 38, 158, 274 
 See Deeds, Construction of : severing provisions 
 
 2 A 
 
354 INDEX. 
 
 D. 
 
 DEBTORS ACT, 1869 
 
 abolishes arrest or imprisonment for debt, 186 
 
 exceptions, ib. 
 
 married women, 99, 106 
 
 DEBTORS ACT, 1878, 
 
 discretion conferred on Court by, 186 
 
 DEBTS, 
 
 assignment of. See Choses in Action 
 
 balance order, 167 
 
 contingent, 57, 167, 247, 254 
 
 Crown, 246 
 
 judgment, 167 
 
 land liable for, 243 
 
 for maintenance of paupers, 167 
 
 marshalling of, 239-243 
 
 merger of specialty in judgment, 228, 229 
 
 priority of specialty, abolished, 243 
 
 except for retainer purposes, 166 
 retainer of, only applies between debts of same degree, 167 
 satisfied by legacy, 269, 270 
 simple-contract, 166 
 
 include debt of surety to a bond, 245 
 
 until payment, 246 
 specialty, 166 
 
 trustees' costs have priority over, 163, 164 
 unascertained debts retained, 169 
 See Administration ; Bankruptcy ; Fraud on creditors ; 
 
 Locke King's Act ; Will, direction to pay debts 
 
 DEEDS OE ARRANGEMENT, 
 registration of, 62 
 acts of bankruptcy, ib. 
 
 DEEDS, CONSTRUCTION OP, 
 
 inseparable provisions in one deed, 262, 263 
 " election," proviso against necessity for, 259 
 "joint lives of husband and wife " construed, 259 
 "power to give receipt," effect of, in deed restraining antici- 
 pation, 106 
 power to appoint portions, 156, 157 
 recital, 
 
 no estoppel by, 88 
 
 misrepresentation by, evidence of fraud, 58 
 
 to keep trust off title no misrepresentation, 214 
 
INDEX. 355 
 
 DEEDS, CONSTRUCTION OF- continued. 
 recital, 
 
 a representation, 312, 313 
 
 a writing for purpose of Statue of Frauds, 30 
 several construed as ODe, 
 
 in fraudulent appointments, 159 
 
 in mortgages, 207, 208, 220, 222 
 
 for purpose of Settled Land Acts, 116 
 
 original and derivative settlements an exception, ib. 
 
 in settlements, 263 
 
 in suretyship bonds, 207, 208 
 severing provisions in one deed, 
 
 bills of sale, 220, 221 
 
 covenants in restraint of trade, 304, 305, 306 
 
 consideration invalid, no election created, 263 
 election created, 257, 259, 260 
 
 negative stipulations, 326 
 
 perpetuities avoided by, 129, 274 
 
 resettlements in so far as they are for value, 296, 297 
 will and deed construed similarly, 
 
 dispositions for creditors, 235 
 
 evidence, 266 
 
 executory gift, 37, 38 
 
 lapse, 50 
 
 Locke King's Acts' anomalies as to, 231 
 
 residuary gift, 62, 235 
 
 DEPOSIT, 
 
 law as to forfeiture of, 66, 67, 87, 283 
 
 interest on, 281, 284, 319 
 
 part payment distinguished from, 66 
 
 DEPRECIATORY CONDITIONS 
 on sales by trustees, 151 
 
 DEVASTAVIT, 165 
 
 DIRECTORS, 
 
 constructive trustees as to powers, 11 
 
 as to moneys under their control, ib., 16, 189 
 
 not as to penal duties, 12, 13 
 
 payment by, ultra vires, 83 
 purchases by, from company, 78, 79 
 receiver not appointed of fees of, 331 
 
 DISCLAIMER 
 
 of agreement for lease by trustee in bankruptcy, 299 
 
 DISCOVERT IN ACTION FOR RECOVERY OF LAND, 
 practice as to, 337, S39, 340 
 
356 INDEX. 
 
 DISCOVERY OP DOCUMENTS, 
 history of the subject, 337 
 effect of R. S. C, 1883, 0. xxxi., ib. 
 general practice stated, 338, 339, 340 
 where and when, ought to he made, ib. 
 by interrogatories discouraged, 340 
 cases where interrogatories as to documents are not allowed, 339 
 
 DISCRETION OF TRUSTEES, 
 
 generally paralyzed by administration judgment, 141-144 
 law as to, when " absolute and uncontrollable," 136 et seq. 
 
 DIVORCE, 
 
 order for custody of infants in, 93 
 
 removal of restraint upon anticipation after, 105 
 
 makes married woman sui juris, 105, 260 
 
 solicitor's lien on alimony, etc., in petition for, 175, 178 
 
 DONATIO MORTIS CAUSA, 
 
 law as to bills of exchange, cheques and promissory notes, 31 
 
 et seq. 
 gifts by way of, held valid, of bank notes, bonds, deposit notes, 
 
 keys, mortgage, policy of insurance, receipt for money, 34 
 Roman law as to, 33 
 
 three essentials of a donatio mortis causa, ib. 
 how differing from and resembling a legacy, 33, 34 
 and how differing from and resembling a donatio inter vivos, ib. 
 provisions of Customs and Inland Revenue Act, 1881, ib. 
 
 Finance Act, 1894, ib. 
 
 E. 
 
 EARMARK, 
 
 money has no, — maxim no longer law, 179 et seq. 
 
 EASEMENT, 
 
 cannot be charged, 176 
 
 not an interest in land, 292 
 
 doctrine of part performance applies to, 292 
 
 compared with restrictive covenants, 306-308 
 
 constructive notice of, illustrated, 314 
 
 of light, 326 
 
 ELECTION, 
 
 consolidation, no election as to, 218 
 fraud on power does not give rise to, 157 
 
INDEX. 357 
 
 ELECTION— continued. 
 gifts, 
 
 election of the old type, between gifts [made by another and 
 
 property owned by self, 257 
 of an intermediate type, between gifts purporting to be 
 made by self but really made by another, and 
 property owned by self under the same instrument, 
 257, 259, 260 
 of the new type, between gifts made by self and property 
 given to self by the same instrument, 257, 261, 262 
 the latter is a substitute for common-law ratification, ib. 
 but is not so speedy in its operation, 262 
 election against works compensation not forfeiture, 
 
 257, 258 
 is only useful in case of married women subject to old 
 
 law, 257 
 is not extended so as to make all invalid terms of a 
 
 contract valid, 263 
 nor so as to make all gifts conditional, 263 
 by assigns, etc, 260 
 infants, 260 
 
 married women, 106, 257, 260 
 instruments to which applicable, 263 
 persons bound by, 260 
 property to which applicable, 262, 263 
 reconversion by, 130, 131, 261 
 satisfaction is a kind of, 266, 267 
 
 ELEGIT, 233, 330, 331 
 
 ENDOWMENT, 
 meaning of, 53 
 
 EQUITABLE MORTGAGE, 
 
 by deposit, sale ordered by Court, 204 
 
 conduct of sale given to mortgagor, 203 
 
 of foreign land enforced, 4 
 
 judgment in action for foreclosure, 197, 198 
 
 legacy charged on land distinguished from, 198 
 
 priorities between, 213-215 
 
 purchase for value, is, 57 
 
 EQUITABLE WASTE, 
 
 law as to, 108 et seq. See Waste 
 
 EQUITY ACTS in personam, 
 
 doctrine of Penn v. Lord Baltimore applied by the House of 
 
 Lords, 1-5 
 statement of the law by Lord Selborne, 23 
 
358 INDEX. 
 
 EQUITY ACTS in personam — continued. 
 
 equities with regard to land out of the jurisdiction, when, and 
 
 when not, enforced, 4, 5 
 the reason of the doctrine of consolidation, 216 
 
 EQUITY ADVANCES, 
 
 agents, in allowing trustees to employ, 145 et seq. 
 discovery, 337 et seq. 
 election, 256 et seq. 
 gifts by client to solicitor, 77 
 goodwill, sale of, 301 
 guardianship and infants, 92, 93 
 injunction, 320 et seq. 
 
 non-merger of charges, per Lindley, L.J., 228 
 receiver, 329 
 
 restrictive covenants, 306 et seq. 
 " timber-estates," 111, 112 
 /"> . t a trust funds, in following, 179 et sea. , „ . ,_, 
 
 EQUITY EETEEATS, 
 consolidation, 216 
 constructive notice, 313 
 constructive trusteeship, in fixing with, 15, 16 
 debt as satisfied by legacy, in construing, 269 
 part performance, 290, 291 
 " precatory," in construing words as, 21, 22 
 relief to reversioners, 69, 70 
 time the essence of the contract in trade cases, etc., 318 
 
 EVIDENCE, 
 
 extrinsic, admissibility of, 
 
 in cases of advancement, 8, 9 
 
 agreements for sale (parties, parcels), 286, 287 
 
 bills of sale, 221 
 
 mistake, 87, 89 
 
 mortgages, 223 
 
 part performance, 290 
 
 purchase deeds (parcels), 87 
 
 rectification, 89 
 
 releases, 87 
 
 satisfaction, 266 
 fresh, cannot be given on appeal from order on administration 
 
 summons, 279 
 husband v. wife, of, and vice versa, 102 
 infants of, as to religious belief, 91, 92, 93 
 interested party, of, 8 
 married woman, separate examination of, 98, 108 
 
INDEX. 359 
 
 EXECUTED TRUSTS, 
 irrevocable, 27 
 rectified, 39. See Executory Trusts 
 
 EXECUTOR, 
 
 bankrupt, practice as to, 280, 331 
 
 costs of, 163, 164 
 
 duty to convert and pay legacies in a year, 270 
 
 duty to sell freeholds (not leaseholds) in twenty years, 139, 283 
 
 legatee-vendor, 315 
 
 married woman, 102, 103 
 
 partner, 169 
 
 retainer by, 165 et seq. See Retainer 
 
 and receiver, 164, 331 
 
 trustee, and Statute of Limitations, 189, 191 
 
 EXECUTORY LIMITATION, 
 
 payment of charge by owner in fee subject to, not merged, 226 
 contingent remainders unable to take effect as such take effect as, 
 273, 274 
 
 EXECUTORY TRUSTS, 34-39 
 
 if antenuptial, a ground for rectifying executed trust, 39 
 
 distinguished from executed, and defined, 35, 36 
 
 in marriage articles and wills, 37 
 
 origin of rule as to, ib. 
 
 what words in wills create, 37-39 
 
 when and when not created, ib. 
 
 EXPECTANT HEIRS, 
 relief to, 69-74 
 defined by Jessel, M.R., 72 
 
 F. 
 
 FAMILY ARRANGEMENTS, 
 review of law as to, 293-297 
 
 may be upheld, though no rights are in dispute, 294 
 do not import value, 56, 294 
 if for value viewed with favour, 78, 296, 297 
 quantum of value not regarded, 295 
 rebut presumption of undue influence, 296 
 
 presumption of fraud on power, 297 
 independent solicitors unnecessary, 296 
 full disclosure necessary, ib. 
 set aside on innocent misrepresentation by solicitor for both 
 
 parties, ib. 
 
360 INDEX. 
 
 FIDEI-COMMISSA, 
 
 words by which created at Roman law, 19 
 
 FIDUCIARY RELATIONSHIP, 181 et seq. 
 See Constructive Trustee 
 
 FIERI FACIAS, 
 
 condition for forfeiture injlease on issue of, 68 
 
 receiver appointed instead of fl. fa., 333 
 
 purchase under, followed by letting of goods to creditor, when a 
 
 bill of sale, 222 
 proceeds oifl. fa., lien on, 176 
 
 FINANCE ACT, 1894, 
 
 incidence of estate duties, 33, 238, 239 
 non-merger of charge for, 226 
 
 FLAT, 309 
 
 FOLLOWING TRUST FUNDS, 
 law as to, 179-186 
 
 FORECLOSURE, 
 
 law as to judgment for, 195 et seq. 
 
 FORFEITURE, 
 
 law as to, 63-67 
 
 of deposit, 66, 67 
 
 not in case of contract being legally binding, 67, 87, 283 
 in cases where no provision is made by the deed, 66 
 
 election when it does not effect, 257 
 
 provisions of Common Law Procedure Acts as to, 67, 68 
 
 provisions of Conveyancing Acts, 1881, 1893, as to, 68, 69, 299 
 
 provisions of Settled Land Act, 1882, as to forfeiture clause, 
 117 
 
 restraint on anticipation not removed, if it effects, 108 
 
 FRAUD, 
 
 of agent, when binding on principal, 189, 190, 210, 315 
 on creditors, actual, 55 
 
 on part of donees, Cornish v. Clarke, 57 
 
 in marriage settlement, Bulmer v. Hunter, 58 
 on creditors, presumptive, if settlor is insolvent, etc., 54-58 
 
 rights of future creditors, 56 
 
 illustrations from traders settlements, 57 
 
 outstanding contingent debts, 57 
 
 sub-purchasers for value, 57, 58 
 
 " void " in the Bankruptcy Acts means " voidable," 57 
 
INDEX. 361 
 
 FRAUD — continued. 
 
 on expectant heirs and others, 
 
 actual, mixed with presumptive fraud, 70, 73 
 mixed with presumptive undue influence, 78 
 on expectant heirs, • 
 presumption of, 70 
 independent advice rebuts, 71 
 poverty creates or enhances, 71, 72 
 by married woman restrained from anticipation, 106 
 mistake due to, relief against, 82 
 
 negligence distinct from connivance in, 188, 211, 213, 214 
 old age, poverty, youth, and ignorance assists presumption of, 
 
 71,72 
 power. See Power, fraud on, 
 priorities, effect on, of connivance in fraud, 210 
 
 or of fraud of agent, ib. 
 ratification, 79. See Acquiescence ; Ratification 
 Statute of Frauds and, 292 
 
 Statutes of Limitations, 1623 and 1833, and doctrine of concealed 
 fraud, 190 
 date of action is discovery of fraud, 190 
 Statute of Limitations of action for breach of trust excepts cases 
 of fraud, 188-190 
 
 fraud by agent will not bind the principal if not com- 
 mitted for his benefit, 190 
 or adopted by him, 189 
 negligence by principal is insufficient, 188 
 trustees may sever if charged with, 164 
 undervalue and, 295 
 vendor and purchaser summons, not raisable on, 284 
 
 FRAUDS, STATUTE OF, 
 
 evidence under sect. 4, 285-290 
 part performance and, 290-292 
 payment of debt unenforceable under, 166 
 pleading the Statute or one section of it, 30, 292 
 sects. 4 & 8.. 292 
 7, 8, & 9. .30 
 signature of writing, 289 
 
 writing includes recital in deed or will, etc., 30, 289 
 See Table of Statutes 
 
 FRIENDLY SOCIETY, 
 when a charity, 51 
 under Charitable Trusts Acts, 51-53 
 debentures of provident society are bills of sale, 221 
 
362 INDEX. 
 
 G. 
 
 GIFT, 
 
 as advancement, 5-10. See Advancement 
 
 company's minute book signed'; this is no gift of stock, 24 
 
 delivery of deed is no gift of its subject matter, 24 
 
 estate duty on, 33, 34 
 
 of husband to wife. See Married "Women subject to the old law, 
 
 and ib. subject to the new law 
 loan or, Bennet v. Bennet, 9 
 perfected, is irrevocable, 27, 62 
 perfected without knowledge of the donee, 10 
 power to solicitor-trustee to charge profit costs is, 77, 173 
 settlement is, for bankruptcy purposes, 56 
 or trust, 22-30 
 
 reason of confusion, 23 
 voidable, unless trifling, 76-79 
 See Voluntary Settlement 
 
 GOODWILL, 
 
 sale of, 288, 302-304 
 definition of, 302 
 review of authorities, 302-304 
 mortgage of, 332 
 
 GROUND GAME ACT, 
 
 agreement for lease treated as lease, 299 
 
 GUARDIAN, 
 of infants, 
 
 appointment of, by father, 93 
 
 mother, ib. 
 removal of, 92 
 statutory, 91, 93 
 See Infant 
 and ward, gifts and other dealings between, 78 
 ad litem, married woman cannot be, 100 
 poor law, not judgment creditor, 167 
 
 H. 
 
 HEIRLOOMS, 
 
 bequests of, 37, 38, 39, 259 
 
 sale of, under Settled Land Acts, 119 
 
 HIRE AND PURCHASE AGREEMENTS, 221, 222 
 
INDEX. 363 
 
 I. 
 
 INDEMNITY, 
 
 action for, 163, 246, 247 
 
 statutory conferred on trustees, 106, 151, 152 
 
 INFANTS, 
 
 action commenced in name of, by solicitor, 335 
 
 administration judgment, etc., 1, 275, 276 
 
 Lord Chancellor guardian of, 92, 125 
 
 compromise of action by, 296 
 
 contracts by, 74, 256 
 
 evidence of wishes of, 91, 93 
 
 expectant heirs, 73 
 
 habeas corpus, 92 
 
 joint tenant, etc., under Partitibn Act, 1876, 125, 126 
 
 jurisdiction over infants without property, 92 
 
 land of, under Conveyancing Act, 1881, s. 42.. 114 , 
 
 partner, 331, 332 
 
 powers exerciseable by, 93, 160 
 
 religious education of, 
 
 antenuptial promise as to, 91 et seq. 
 
 father's control over, 90-96 
 reconversion of infants' land if sold, 130 
 remainderman, 113 
 settlement by, under statutory power, 256 
 
 non-statutory, confirmed or repudiated, 98, 256-262 
 shareholder, 256 
 statutes dealing with guardianship and custody of, 
 
 12 Car. II. c. 24.. 93 
 
 2 & 3 Vict. c. 54, Talfourd's Act, now repealed, 93 
 
 36 Vict. c. 12.. 93, 94 
 
 48 & 49 Vict. c. 69.. 93 
 
 49 & 50 Vict. c. 27.. 93 
 
 Custody of Children Act, 1891 ..92, 95 
 other Acts relating to infants, 
 
 18 & 19 Vict. c. 43 (Infants Settlement Act), 256 
 
 37 & 38 Vict. c. 62.. 74, 256 
 practice under Judicature Acts, 92, 93 
 
 tenant for life under Settled Lands Acts, 117, 118 
 
 trustee, appointment of, 29 
 
 made ward of court, 95, 96 
 
 ward of court removed out of the jurisdiction, ib. 
 
 INJUNCTION, 
 
 effect of the Judicature Act, 1873, s. 25, sub-sect. 8, and 
 principles by which the Court is governed, 321, 322 
 
364 INDEX. 
 
 INJUNCTION— continued. 
 
 no general jurisdiction to restrain persons acting without 
 
 authority, 322 
 undertaking as to damages, 323 
 how application for, may be made, ib., 322-323 
 interlocutory, nature of, 323 
 mandatory, ib., 176, 292, 323, 324 
 against parting with securities, 73 
 
 enumeration of the more important cases decided in recent 
 years, 324-328 
 
 INSURANCE. See Life Insurance 
 
 INSTALMENTS, 
 
 advancement to son of purchase money of business, payable by, 
 
 and death of father, 10 
 agreement to forfeit past, on non-payment of future, 65, 66 
 
 to pay whole debt, on non-payment of any, 64 
 mortgage payable by, order, 197 
 payment by, in hire purchase agreement, 221 
 
 a vital term in a contract, 288 
 
 of rent-charge for improvements, by tenant for life, 120 
 
 INTERESSE TERMINI, 
 
 non-merger of tenancy with, 229 
 
 INTEREST, 
 
 on deposit, 281-284. See Deposit 
 
 on marshalled funds, 243 
 
 payment of, and Statutes of Limitations, 191, 205, 207, 208, 209 
 
 presumption of payment of, by limited owner of mortgaged 
 
 property, and of mortgage debt, 208 
 rate of, 135 
 vendor's right to, 283, 319 
 
 INTERROGATORIES, 
 
 discovery of documents by, 337 et seq. 
 
 INVESTMENT TRUST, 
 law as to, 39-43 
 
 J. 
 
 JOINT TENANTS AND TENANTS IN COMMON, 
 gifts to husband and wife, 99 
 tenant for life under Settled Land Acts, 116, 117 
 mortgagor, 199 
 partition actions by, 121-127 
 
INDEX. 365 
 
 JOINT TORT FEASORS, 
 action against, 327 
 
 JOINTRESS, 
 
 is not tenant for life under the Settled Land Acts, 116 
 
 LACHES, 58, 164, 245, 247, 248 
 creates estoppel, 245 
 See Acquiescence; Representation 
 
 LAND, 
 
 what it includes in 
 
 Mortmain Acts, 54 
 Partition Acts, 122 
 Settled Land Acts, 116 
 Statute of Frauds, 292 
 
 LAND CHARGES REGISTRATION AND SEARCHES ACT, 1888, 
 provisions of, as to order appointing receiver, 334 
 
 LAND CLAUSES CONSOLIDATION ACT, 1845, 
 law as to money paid into Court under, 130, 131 
 See Table of Statutes 
 
 LAND SOCIETY, 
 cases as to, 43 
 
 LAPSE 
 
 of gift by deed or will, 50, 128 
 
 LAW MERCHANT, 
 
 effect of, on common law, 304, 340, 341 
 
 equity contrasted with, 341 
 
 husband and wife at, 25 
 
 international, equity peculiarly English, 5, 42, 341 
 
 merchants not constructive trustees, 182 
 
 successive endorsers of bill at, and in equity, 245 
 
 title deeds, etc., dealings with, at, and equity, 213 
 
 time the essence of the contract in mercantile contracts, 318, 319 
 
 LEASE, 
 
 agreement for, construed as lease, 68, 297-300 
 
 assignment of, 56, 318 
 
 bequests of leaseholds to follow freeholds, 38 
 
 when they carry interest, 272, 273 
 creditors, fraud on, 55 
 
366 INDEX. 
 
 LEASE — continued. 
 
 forfeiture, relief against, 68, 69 
 investment on leaseholds by trustees, 151 
 leaseholds and Locke King's Act, 231, 232 
 
 Partition Acts, 122 
 lessor's ignorance of his own, mistake in fact, 86 
 provision for future obligations of, 324 
 proviso for forfeiture on bankruptcy, 68 
 purchaser of freehold has notice of, 312, 314, 315 
 renewal of leaseholds, 154, 251 
 solicitor's costs in preparing, 172, 299, 300 
 surrender of, and merger, 228, 229 
 tenant for life's power of granting, 115, 117 
 time the essence of the contract on sale of, 317, 318 
 under-lessee's notice of original, 87, 310, 312 
 usual covenants in, 283 
 Vendor and Purchaser Act and, 300 
 waste by tenant for life of, 332 
 
 LECTURES, 
 
 injunction to restrain publication of, 325 
 
 LEGACY, 
 
 charged on land, is not an equitable mortgage, 198 
 
 remedy of legatee is sale, ib. 
 contingent and devise to class construction of, 273, 274 
 
 what members take, ib. 
 interest payable on, from testator's death in nine cases, 273 
 executory interests aud contingent remainders,"difference of, rule 
 
 as to, 274 
 personalty and realty follow different rules, 273, 274 
 residuary legatee and next of kin in same position for election, 
 
 260, 263 
 secured by trust, 191, 206, 209 
 specific and residuary, cases distinguishing, 238 
 Statutes of Limitations, 191, 206, 209 
 
 vested and contingent legacies, different rules as to, 272, 273 
 See Election ; Satisfaction ; Maintenance ; Will 
 
 LETTERS, 
 
 acknowledgment by, 209 
 
 contract by, 285-289 
 
 Post Office the agent of both parties, 289 
 
 injunction to restrain^publication of, 325 
 
 See Correspondence 
 
 LIBEL, 
 
 injunction against, 325, 326 
 
INDEX. 367 
 
 LIEN, 
 
 auctioneer's particular, 240 
 
 company's, on shares, 201 
 
 on money, defined as right to retain, 162, 180, 181 
 
 See Retainer 
 on policy. See Life Insurance 
 set off contrasted with, 240, 241 
 solicitors', general, 178 
 
 particular, 176, 177 
 
 statutory, 174 et seq. 
 
 priorities, 176-178 
 
 effect of notice, 177 
 See Solicitor 
 trustees', 160-164 
 vendor's, 231-233 
 by victims of mistake for improvements, 85 
 
 LIFE INSURANCE, 
 law as to, 249-255 
 
 by creditor of debtor's life, is it indemnity or not, 251, 252 
 disclosure, duty of, 255 
 by husband for wife and children, 102, 255J 
 insurable interest, 254 
 
 married woman restrained from anticipation, 107 
 novation, 255 
 policy of, 
 
 assignment of, 253 
 
 notice of, does not affect priorities, 254 
 
 lien on, created by contract, 249, 250 
 
 under trustees' and mortgagees' implied contract, and by 
 subrogation, 250 
 
 another possible source, 251 
 policy-moneys, payment of, to trustees' agent, 150 
 special legislation with regard to, 254, 255 
 
 LIGHT, 
 
 injunction in respect of, 326 
 
 LIMITATIONS, STATUTES OP, 
 
 acknowledgment must be meant as admission, 209 
 
 by agent, by one of two mortgagees, or trustees, ib. 
 effect in reviving debt, including surety's guarrantee, ib. 
 except where title is extinguished against mesne purchaser 
 of land, ib. 
 action, date of, 
 
 in case of concealed fraud, 190 
 of legatee of reversion, 209 
 of implied estate, 191 
 
368 INDEX. 
 
 LIMITATIONS, STATUTES OF— continued. 
 action, date of 
 
 of mortgagee, 209 
 of surety to mortgage, ib. 
 against co-surety, 247 
 of trustee in case of improper investment, 191 
 action, right of pleading in, between 
 husband and wife, 99 
 legatee and executor, 191, 206, 209 
 mortgagor and mortgagee, 205-209 
 
 includes personal covenant, 205-207 
 even if in separate deed, 207 
 solicitor and client, 175, 178 
 surety and mortgagee, 207, 208 
 trustee and cestui que trust, 187-191 
 
 including constructive trustees, 18, 187, 189 
 executor-trustees, 191 
 implied trustees, 189, 190 
 trusts in mortgage deed, 206 
 or annexed to legacy, 191, 206, 209 
 conversion of trust funds, effect of, 190, 191 
 fraud, 
 
 effect of, 189, 190 
 
 of agent in interests of, or adopted by principal, 189, 190 
 negligence, effect of, 188 
 payment of debts barred by, 
 by executors, 165, 166, 169 
 by trustees, 163 
 payment of interest, 191, 205, 207, 208, 209 
 retainer, right of, and, 241 
 retention of trust fund, effect of, 190 
 
 LIQUIDATED DAMAGES. See Forfeiture 
 
 LIS PENDENS, 144, 215 
 
 LIVING PICTURES, 
 law as to, 328 
 
 LOAN SOCIETY, 
 cases as to, 43 
 
 LOCKE KING'S ACT, 
 history of, 230-232 
 law with regard to mortgage debts completely changed by, 
 
 230 et seq. 
 statement of law previous to, 230, 231 
 effect of recent decisions on the subject, 229, 232-234 
 
INDEX. 369 
 
 LUNATICS, 
 
 committee of, not personally liable on contracts for, 332 
 effect of action for administration on powers of, 142 
 guardianship of, by Lord Chancellor, 125 
 maintenance of, tenant for life, 136-138 
 partner, 333 
 Partition Acts, 125, 126 
 property of, if sold reconverted, 130, 131 
 solicitor brings action in name of, 336 
 tenant for life under Settled Land Acts, 117 
 
 M. 
 
 MAINTENANCE, 
 of animals, 51 
 of infants, 
 
 administration action, effect of on powers of maintenance, 144 
 contingent gifts to children on attaining twenty- one carries, 
 271 et seq. 
 even after the eldest child attains twenty-one, 271, 272 
 Court orders scheme for, 92 
 direction for, 
 
 distinction between trust and, 158, 159, 191 
 effect of, 273 
 trustees' discretion as to, 138, 139 
 trustee-solicitors' costs for summons as to, 170 
 trustees' lien for payments of, 163 
 of lunatics out of property in which they have limited interest, 
 136-138 
 
 MANDAMUS, injunction in lieu of, not granted, 328 
 
 MARRIAGE, 
 
 not part performance, so as to take case out of Statute of Frauds, 291 
 provision of Statute of Frauds as to, ib. 
 
 MARRIAGE SETTLEMENT, 
 when fraud on creditors, 57, 58 
 
 MARRIED WOMEN, 
 
 may be trustees, 28, 29 
 
 appointment of as trustees not expedient, ib. 
 
 MARRIED WOMEN, 
 
 Subject to the Old Law, 
 
 action commenced without authority of, 335 
 advancement, presumption of, by husband, 10 
 agreement with husband that property shall be to her 
 separate use, 30 
 
 2 B 
 
370 INDEX. 
 
 MARRIED WOMEN— continued. 
 
 Subject to the Old Law — continued. 
 gift to, by husband, 25 
 injunctions between husband and wife, 324 
 mercantile custom, 25 
 paraphernalia of, 25 
 Partition Act, 1876. .125, 126 
 power, exercise of general, by, 237 
 power to convert or elect to reconvert, 130, 131, 261 
 
 elect, 256, 260, 261 
 receiver of separate property of, 332 
 repudiation of settlement made when an infant, 98 
 by election, 256-264. See Election 
 satisfaction, presumption of, 
 
 where bequest is to separate use, 269 
 separate use, destroyed by, when single, 105 
 
 husband implied trustee for wife's, 190 
 
 injunction against husband as to wife's property settled 
 to, 324 
 
 Statute of Limitations, 1888, and, 189 
 tenant for life under Settled Land Acts, 117 
 undertaking by, 125, 323 
 writing signed by, and Statute of Frauds, s. 1 . . 30 
 
 MARRIED WOMEN, 
 
 SCBJECT TO THE NEW Law, 96 
 
 actions against husband, 99 
 
 appointment by, if general, is subject to her creditors' 
 
 rights, 98, 102 
 base fee enlarged by, 98 
 executrix, 102 
 
 gifts of husband to, 56, 99, 223 
 infant settlement repudiation by, 98 
 injunctions between husband and wife, 324 
 joint-tenant, or tenant in common, 99 
 joint-trader with husband, 99 
 liability of husband, 100, 102 
 limited liability of, 
 
 not made bankrupt, nor subject to Debtors' Act (sect. 5), 99 
 
 unless trader, 101 
 
 or for antenuptial debts, 106 
 loans to husband, 101, 102 
 next friend and guardian, cannot be, 100 
 paraphernalia, gifts of, 99 
 policies of assurance, 102 
 power released by, 98, 99, 108 
 purchases from husband, 223 
 receiver of property of, 332 
 
INDEX. 37 i 
 
 MARRIED WOMEN— continued. 
 
 Subject to the New Law — continued. 
 
 retainer by, 101 
 
 separate examination unnecessary, 98 
 
 tenant for life under Settled Land Acts, 117 
 
 trustee, 103 
 
 undertaking by, 323 
 
 will by, 100 
 
 witness, 102 
 Bee Restraint on Anticipation 
 
 MARRIED WOMEN'S PROPERTY ACTS, 1882-1893 
 
 review of principal sections with summary of points decided, 
 
 100 et seq., and 96-100 
 repeals Act of 1870, subject to a saving clause, 98 
 See Table op Statutes 
 
 MARSHALLING, 
 
 experiment tried in case of Webb v. Smith, 239, 240, 241 
 principle of, stated and illustrated, 240 et seq. 
 illustrations of, 
 
 as between beneficiaries, 241 
 
 as between creditors, 241, 242 
 
 as between mortgagees, 241 
 
 against separate assets of partner, 241 
 
 in the Admiralty Division, 241, 242 
 Court will not marshal in favour of Charity, but will give effect 
 to direction to marshal, 242, 243 
 
 MAXIMS of Equity, 
 generally, 5 
 Latin illustrations : 
 
 Allegans suarn turpitudinem non est audiendus, 181 
 
 Debitor non prcesumitur donare, 269 
 
 Jgnorantia Juris neminem (haud) excusat, 81, 85 
 
 Id certum est quod certum reddi potest, 286 
 
 Omne majus continet in se minus, 321 
 
 Omnis nova constitutio futuris formarn imponere debet non 
 prceteritis, 97 
 
 Qui sentit onus sentire debet et commodum, 252 
 
 Secundum naturam est commoda cujusque rei eum sequi quern 
 sequuntur incommoda, 252 
 
 Vigilantibus non dormientibus subvenit equitas, 58 
 English illustrations : 
 
 Equity acts in personam, 1 et seq. 
 
 Equity regards the substance of the transaction, 219, 341 
 
 Once a mortgage always a mortgage, 223 
 
 Equity is equality, 214 
 
 A man may not derogate from his own grant, 301, 309 
 
372 INDEX. 
 
 MERGER OP CHARGES, 
 
 of charge paid off, depends on intention, express, or implied, 225 
 rule of law where charge is paid off (1) by limited owner, 
 or by tenant-in-tail unable to bar the entail, etc. ; (2) 
 by owner of estate in fee or tail, 225, 226, 242 
 
 law as to latter assimilated to law as to former, 227, 228 
 
 Toulmin v. Steere disapproved of, 228 
 
 provisions of Judicature Act, 1873, s. 25, sub-sect. 4, as to, 228 
 
 authorities on the subject of, ib., 218, 228, 229, 234 
 
 general doctrine of merger, 229 
 
 MINES, 
 
 concurrent right to work, 90 
 
 law as to opening and working by tenant for life, 
 
 unimpeachable for waste, HO 
 
 impeachable for waste, 112 
 time not the essence of the contract on sale of, 317, 318 
 
 MISTAKE, 
 
 by mortgagees, effect of, 193, 194, 204 
 by trustees, effect of, 164 
 
 MISTAKE OP FACT, 
 relief against, 84-90 
 caveat emptor an answer, 87 
 compromise distinguished from, 295, 296 
 in deeds, 84-90 
 election and, 257 
 ignorance distinguished from, 89 
 means of knowledge no answer, 86 
 Orders of Court, and consent orders, 89 
 as to parcels, 86, 87, 88 
 as to pure fact, 88 
 in releases, 87, 88 
 as to title, 83, 84, 85, 86,^90 
 remedies for, 88-90 
 
 compensation, 88 
 
 evidence, 88, 89 
 
 interim dealing prohibited, 88 
 
 practice, 88-90 
 
 rectification or rescission, 88-9C 
 
 in unilateral and bilateral, ib. 
 
 MISTAKE OF LAW, 80-83 
 acquiescence, effect of, 81 
 compromise and, 295, 296 
 construction of a document i?, 80, 81 
 election and, 257 
 
INDEX. 373 
 
 MISTAKE OP LAW— continued. 
 of foreign law is mistake of fact, 83 
 mistake of fact distinguished from, 85, 86, 257 
 payment to officer of Court, relief against, 82, 83 
 rights, mistake as to, not, 83, 85, 86 
 
 MORTGAGE, 
 
 doctrines as to mortgage, 
 
 unity of mortgage illustrated by Statute of Limitations, 207 
 a case when the debt survived the security, and vice versa, 
 
 208, 209 
 " Once a mortgage always a mortgage," 223, 224 
 invalid covenants in, illustrative of this maxim, 
 to clog redemption, 73, 224 
 to pay increased interest, 64 
 not to redeem in a certain case, 224 
 to pay simple or compound interest, 86, 224 
 
 consolidation of, 216-219. See Consolidation 
 
 donatio mortis causa of, 34 
 
 Limitations, Statutes of, 205-209. See Limitations, Statutes op 
 
 marshalling of mortgage securities, 241 
 
 partition action and mortgages, 124, 125 
 
 payment of, by devisee of mortgaged estates, 229-234 
 See Locke King's Act 
 
 priorities, 210-215. See Priorities 
 
 solicitor's costs in preparing, 172 
 
 tenant for life's power to, 115, 117, 124 
 
 usual clauses in a, 76 
 
 See Equitable Mortgage 
 
 MORTGAGE ACTION, 
 
 action on the covenant combined with foreclosure, 195 et seq. 
 Conveyancing Act, 1881, s. 15, Conveyancing Act, 1882, s. 12.. 
 
 200,201 
 default, judgment in action by, 199 
 order settled by Court of Appeal, 197 
 originating summons inapplicable where priorities are in dispute, 
 
 198, 199, 200, 278 
 parties, 199 
 
 period or periods for redemption, 199, 200 
 pleadings, etc., 200 
 possession, claim for, 
 
 should identify property, 200 
 
 should be endorsed on summons, 200 
 receiver appointed, 332, 333. See Receiver 
 sale, who may apply for, in, 202-205 
 
 procedure on application for, 205 
 
 application by mortgagor where mortgagee wishes to exercise 
 his power of sale, 203 
 
374 INDEX. 
 
 MORTGAGE ACTION— con tinned,. 
 
 application by mortgagee, where mortgagor did not appear, 204 
 
 interval for, 200 
 
 conduct of, no rule as to, 203, 204 
 
 security ordered, 203 
 
 speculation sale refused, 204 
 special indorsement, 198 
 
 MORTGAGEE, 
 
 consent of, to sale by tenant for life necessary, 117 
 
 costs and expenses of, included in security, 191 et seq., 250 
 
 denned by Seton, 193 
 Pry, L.J., ib. 
 andR. S. C, 1883.. 164, 193 
 
 effect of bond fide mistakes, 193, 194 
 gross errors, misconduct, etc., 194 
 
 in cases of priority, 194 
 
 where he is solicitor, 172, 194, 195 
 may marshal securities, 241 
 partition action, when a party to, 124 
 pledgee of chattels distinguished from, 222, 223 
 
 of railway shares, 201 
 power of sale exercised by, in an invalid way, 315 
 
 injunction against, exercise of, 326 
 receiver of, 332, 333, 337 
 solicitor, may only insert usual covenants, 76 
 trustee for mortgagor of surplus proceeds of sale of mortgaged 
 
 property, 188, 204, 205 
 
 MORTMAIN AND CHARITABLE USES ACTS, 1888, 1891, 
 provisions of, 54, 243 
 
 MUTUAL MARINE INSURANCE COMPANY, 
 case as to, 43 
 
 N. 
 
 NATIONAL DEBT COMMISSIONERS, 
 law as to notice of trusts by, 29 
 
 NE EXEAT REGNO, 336, 337 
 
 NEGLIGENCE, 
 
 agents of trustees selected without, 145, 162 
 no bar to relief against mistake of fact, 86 
 
 to trustees from Statutes of Limitations, 188 
 may affect priorities between equitable mortgagees, 214 
 
INDEX. 375 
 
 NEGLIGENCE— continued. 
 
 gross, may not affect priority between legal and equitable mort- 
 gagees, 211 
 gross, amounts to constructive notice, 314 
 
 NOTICE, 
 
 actual and constructive, 311-316 
 assignment of debts. See Choses in Action 
 creditors, to, of trust deed, 60, 61 
 constructive notice, 
 
 defined by C. A., 1882.. 313 
 
 and by Lord Crauworth, 314 
 
 cases on, 314-316 
 
 will not be extended, 313 
 Conveyancing Act, 1881, s. 14.. 68 
 of a deed or will, notice of its contents, 18, 312, 313 
 of easement, tenancy, etc., inferred from visible objects, 314 
 of equitable mortgage to trustees confers priority, 215 
 
 of policy to office does not confer priority, 254 
 
 of debts, 26, 27. See Choses in Action 
 ignorance of one's own deed when permitted, 85, 86, 262 
 
 when not permitted, 87, 262 
 injunction, of, 322, 323 
 lessee's, of lessor's title, 87, 311, et seq. 
 of outstanding term is notice of its trusts, 214 
 representation and, 212, 312, 313 
 of restrictive covenants, effect of, 308, 309, 311 
 Settled Land Acts, 1882 to 1890 .. 118 
 of solicitor's lien, effect of, 177 
 to make time the essence of a contract, 
 
 effect of, 318, 319 
 
 what is reasonable, 319 
 of trustees' lien, 164 
 to trustees, under Settled Land Acts, effect of absence of, 118 
 
 of derivative settlement, 215 
 
 to one of two, 215 
 Vendor and Purchaser Act, effect of, 312 
 
 NOVATION, 
 
 by policy holders in insurance companies, 255 
 
 NUISANCE, 
 defined, 327 
 
 in exercise of statutory powers, 327 
 smallpox hospital, 328 
 
376 INDEX. 
 
 0. 
 
 OPTION, 
 
 to purchase, 131, 132, 308, 318 
 
 ORIGINATING SUMMONS, 
 
 an action, for purpose of appeals, if under the E. S. C, 279, 280 
 
 not for third party procedure, ib. 
 
 nor for service out of the jurisdiction, 5, 279 
 administration action, 275-280 
 amendment of, 205, 284 
 appeal, time for, 279 
 Chambers, practice in, 279 
 
 matters which come before the Judge in, ib. 
 definition of, 279 
 
 for directions, inapplicable in case of claims made adversely to the 
 deed or will, 277 
 
 cases in which it has been refused or granted, 278 
 
 dispute of fact, 200 
 effect of, on Obaneery and Q. B. D. procedure, 340, 341 
 mortgage action, 198, 205 
 parties served, 278 
 priorities in dispute, 200, 278 
 receiver appointed, 333 
 vendor and purchaser, 281-284 
 
 appeals, 283 
 
 judgment orders return of deposit with interest, 281-284 
 
 questions decided under, 283, 284 
 
 statement of facts, 282 
 
 title of summons, 282 
 
 ORNAMENTAL TIMBER, 
 what is, 109 
 
 P. 
 
 PARAPHERNALIA, 
 
 in administration, 237 
 
 whether gifts by husband are, 99 
 
 gifts of, under the old law, 25 
 
 PARENTIS, IN LOCO, 265, 268, 269, 273 
 
 discussed, 7, 8 
 analogous cases, 78 
 
INDEX. 377 
 
 PARTITION, 121-127 
 
 Chancery Division has jurisdiction over, 122 
 but not in case of foreign land, 4 
 includes copyholds since 1841 ..122 
 Partition Act, 1868 .. 123 et seq. 
 object of, 123 
 sale under sect. 3 . . 125 
 
 sects. 4& 5. .123 
 sale effects conversion except in case of infants and 
 lunatics, 130 
 and in certain cases married women, ib. 
 sale ordered where mortgages are subsisting, 124 
 
 not ordered where there is a trust for sale, 124, 125 
 secus when there is a power of sale, 125 
 Partition Act, 1876, 
 disability, 125, 126 
 service of notice of judgment, 126 
 practice in partition action, parties and costs, etc., 126, 127 
 by tenant for life under Settled Land Acts, 115 
 
 PARTNERSHIP, 
 
 creation of, by acts, 293 et seq. 
 
 by unregistered company being formed, 43 
 debts and private debts, consolidation of, 217 
 definition of, as mutual agency, 41, 42 
 
 in wider sense includes company, 41 
 
 in narrower sense contrasted with company, ib. 
 
 contrasted with co-ownership, 130 
 executor-partner, retainer by, 169 
 fraud between partners and Statute of Limitations, 190 
 infant-partner, receiver of, 331, 332 
 mad partner, injunction against, 327 
 property of partners converted, 129, 130 
 
 for purposes of former probate duty, 129 
 receiver of partnership property, appointment of, 333 
 
 in case of infant, 331, 332 
 retiring partner's duty to continuing partners, 300-302 
 
 covenant not to trade, 306 
 satisfaction by share in, 268, 269 
 separate assets of partner, no remedy of joint creditor against, 277 
 
 except by marshalling, 241 
 solicitor-trustees' or mortgagees' partner, liability of, 
 
 to account for profits, 170-172, 194, 195 
 
 for breach of trust, 17, 18. See Solicitor 
 
 PART PAYMENT, 
 
 distinct from deposit, 66 
 not part performance, 291 
 
378 INDEX. 
 
 PART PERFORMANCE, 290-292 
 
 arises from doctrine of acquiescence, 290 
 
 and fraud, 292 
 
 companies and corporations, doctrine of, applies to, 292 
 
 easements, doctrine of, applies to, 291, 292 
 
 marriage is not, 291 
 
 PATENTS, 
 
 injunctions granted in respect of, 326, 327 
 
 PAYMENT INTO COURT, 95, 205, 252, 253 
 
 PENSIONS OP OFFICERS, 333 
 
 PERMISSIVE "WASTE, 
 
 legal tenant for life not liable for, 113, 140, 332 
 
 PERPETUITY, RULE AGAINST, 47 
 charities are not amenable to, 47, 48 
 devise or bequest construed as executed so as to avoid, 38 
 devise to contingent class, 274 
 restrictive covenants are exceptions to, 307, 308 
 restraint on anticipation is amenable to, 107 
 severance of gift so as to avoid, 129, 274 
 trust for sale void, limitations of proceeds valid, 129 
 violation of, avoids the whole gift, 274 
 
 PENAL STATUTE, 
 
 does not supersede injunctions, 327, 328 
 effect of, where it avoids transactions, 55 
 
 where it does not avoid transactions, 12, 13, 17 
 
 PENALTIES AND FORFEITURES, 63-69 
 
 cases as to penalty and liquidated damages, 64-67 
 
 summed up in seven rules, ib. 
 
 illustrations, 
 
 in bill of lading, 65 
 
 lease of public house, 65 
 
 mortgage deed, 64 
 purchase deed, etc., 65, 66 
 provisions of Conveyancing Acts, 1881, 1892, as to relief against 
 
 forfeiture of leases, and cases thereon, 68 
 provisions of Common Law Procedure Acts, 1852, 1860, as to 
 
 forfeiture, 67, 68 
 See Forfeiture 
 
 PHOTOGRAPHS, 
 
 injunction against selling or exhibiting, 328 
 
INDEX. 379 
 
 PLEDGE, 
 
 distinguished from mortgage of shares,' 201 
 of chattels, 222, 223 
 
 POLICY OP INSURANCE, 
 assignment of, 253, 254 
 donatio mortis causa of, 34 
 lien on, when acquired, 249 et seq. 
 Life Assurance Companies' Acts, 254, 255 
 Married "Women's Property Acts, 102, 255 
 marshalling as between creditors of life assurance company, 242 
 novation of, 255 
 
 payment into Court of money produced by, 252, 253 
 priorities not affected by notice, 254 
 
 restraint on anticipation removed in order to pay premium on, 107 
 trustee of, appointment of, 98 
 agents appointed by, 150 
 
 PORTION, 
 
 defined, 7, 156, 266 
 
 See Satisfaction ; Fraud on Powee 
 
 POSSESSION, 
 
 meaning of, in contract, 317 
 claim for, in mortgage action, 200 
 mortgagee in, 201, 209 
 right to, of equitable life-tenant, 278 
 
 POST OFFICE, 
 
 common agent of both parties to a contract, 289 
 
 POWER, 
 
 of appointment of portions, rules for construing, 156 
 of Charity Commissioners, 44, 47, 52, 53 
 directors are trustees of, 11 
 fraud on, 155-160 
 
 must be exercised bond fide for end designed, 156 
 
 fraud not to be presumed, ib. 
 
 summary of law on, five propositions by Lindley, L.J., 156, 
 157 
 
 classified illustrations under five other heads, 157-159, 
 
 and family arrangement, 297 
 
 Statutes relating to, 159 
 infants, exercise of, by, 93, 160. See Infants 
 of maintenance and accumulation, 271 et seq. See Maintenance 
 married women, execution of general, by, effect of, 102 
 
 See Married "Women 
 release of, 160 
 
 conferred by Settled Land Act not allowed, 117 
 
 by married woman, 98, 99, 108 
 
380 INDEX. 
 
 POWER— continued. 
 
 of revocation in voluntary deed, 27 
 of sale, 
 
 by Court in partition action, 121-127 , 
 
 in foreclosure or redemption action, 202 et seq. 
 by mortgagee, 204 
 Settled Land Act, under, 114 et seq. 
 of tenant for life, 115, 116, 117 
 
 by leave of the Court, 119, 120, 121 
 with consent of trustees, 119, 120 
 of trustees, 117, 118 
 of solicitor-trustee to charge for services, 170 et seq. 
 of trustees, 
 
 to appoint agents, etc.,145 et seq. 
 
 to invest, 151, 152, 153, 154 
 
 to retain investments or postpone conversion, 134, 135, 
 
 139, 140 
 to vary investments, 154 
 
 suspension of, by administration action, 141 et seq. 
 See Trustee 
 trusts, distinguished from, 124, 125, 136, 137, 156, 160, 237 
 
 construed as, 140. See Trusts 
 waste, of tenant for life to commit, 108 et seq. 
 
 PEACTICE UNDER THE JUDICATURE ACTS, 
 
 rule where there is a variance between the former practice of 
 Courts of Chancery and Common Law, and no practice is 
 laid down under the Judicature Acts, 334 et seq. 
 
 PRECATORY TRUSTS, 
 law as to, 19-22 
 reason of the law as to, 19 
 effect of old cases as to, 20 
 leaning of modern decisions against, 20 et seq. 
 as stated by Cotton, L.J., 21, 22 
 Lindley, L.J., 22 
 
 PRIORITIES IN MORTGAGES, 
 
 building society's receipt, effect of, 215 
 
 costs in case of mortgage actions, 194, 198 
 
 equitable mortgagees, 213-215 
 
 if equities are equal, they rank in order of date, 214 
 
 it is not inequitable to disarrange equities by getting in an 
 
 outstanding legal estate, 214, 215 
 negligence will make one equity worse than another, 213, 214 
 
 legal mortgagees, rules as to, 210-213 
 
 who do not obtain possession of title-deed, 212 
 who do not retain possession of title-deeds, 212, 213 
 negligence will not deprive legal mortgage of his priority, 211 
 
INDEX. 381 
 
 PRIORITIES IN MORTGAGES— continued. 
 notice. See Notice 
 
 originating' summons is usually inapplicable to decide, 200, 278 
 of policies of assurance not affected by notice to the office, 254 
 solicitors' lien for costs, 176, 177 
 Tabula in naufragio, 214, 215 
 trustees' lien for costs, 163, 164 
 
 PRIVILEGED COMMUNICATIONS, 
 statement of law with regard to, 339 
 
 PROBATE, 
 
 principal and ancillary, 2 
 action, costs of, 163 
 
 PROHIBITION, 
 
 injunction in lieu of, 328 
 
 PROMISSORY NOTE, 
 
 donatio mortis causa by, 31, 32, 34 
 successive endorsers of, 245 
 
 PROTECTION ORDER, 
 
 effect of, on married woman's property, 105, 262 
 
 PUBLIC HOUSE, 
 
 liquidated damage, penal sum for breach of licensing laws is, in 
 
 case of, 65 
 " in possession of a tenant " in conditions of sale of, does not 
 
 mean a lease for seven years, 314 
 relief against forfeiture on bankruptcy, etc., not extended to, 68 
 time the essence of the contract in sale of, as a going concern, 318 
 
 PUBLIC POLICY, 
 
 common law based on, is progressive, 303 
 equity grounded on, 71 
 
 PURCHASE FOR VALUE, 
 
 discovery against purchaser for value, 339, 340 
 
 equities and, purchase for value is only subject to equities then 
 
 subsisting, 218 
 following trust funds defeated by, 184-186 
 imperfect gift and, 32, 33 
 payment of debt is, 184, 185 
 solicitor's lien ineffectual against, 175 
 Statutes of Limitations and, 209 
 transfer into Court is, 184 
 voluntary settlements formerly void against, 61, 62,242 
 
 not set aside where, 57 
 See Voluntary Settlements 
 
382 INDEX. 
 
 Q. 
 
 QUARRIES, 
 
 law as to opening and working, 112 
 
 QUASI-EQUITABLE, 
 
 actions at common law, 82 
 
 for money had and received, 82, 89 
 doctrines as to surrender of leases, 228, 229 
 procedure at common law, discovery, 337 
 
 QUIA TIMET ACTION, 
 
 necessary ingredients of, 328 
 an instance, 109 
 
 QUO WARRANTO, 
 
 injunction in lieu of, 328 
 
 R. 
 
 RATIFICATION, 
 
 of voidable settlements, at common law, 256, 257, 261, 262 
 by election. See Election 
 
 no action on, of promise or contract made during infancy, 74 
 
 under what circumstances there cannot be, of an invalid trans- 
 action, 79, 263, 296 
 
 See Acquiescence ; Laches 
 
 REAL PROPERTY LIMITATION ACT, 1874, 
 
 sect. 8 of, bars remedy of mortgagee on covenant as well as 
 against the land, 205 et seq. 
 
 law is the same when debt secured by collateral bond 
 
 given by mortgagor, 207 
 but not where collateral bond given by surety, 208 
 acknowledgment, etc., what necessary, to take case out of the 
 
 Statute, 209 
 dates when right of action accrues, 209 
 must be pleaded, ib. 
 
 RECEIVER, 
 
 appointment of, 
 
 judgment creditor obtains without fresh action, etc., under 
 
 Judicature Act, s. 25 . . 329-331 
 not duly constituted until security given, 333 
 interim, ib. 
 
INDEX. 383 
 
 EBCEIVEE — continued. 
 appointment of, 
 
 interim, endorsement of writ for, 333 
 
 originating summons, may be appointed under, ib. 
 
 power to appoint under Conveyancing Act, 1881, s. 19 .. 332 
 
 order appointing, registration of, 334 
 cases as to, 329-334 
 effect of appointment of, upon demand for interest as liquidated 
 
 sum in mortgage action, 198 
 employed by solicitor-trustee, 172 
 and executor, 168 
 of foreign land, 4 
 manager, 331, 332 
 mistakes of law by, 83 
 officer of the Court, ib. 
 surety to, 248 
 trustee of money in bis bands, 332, 333 
 
 RECITAL, 
 
 representation, 312, 313 
 
 to keep trust off title, 214 
 
 " writing " for purpose of Statute of Frauds, 30, 289 
 
 See Deeds, Construction of 
 
 RECONVERSION, 
 
 law as to, 128, 130, 131 
 
 RECOVERY OP LAND, 
 
 Common Law Procedure Acts and action for, 67 
 discovery in action for, 338 et seq. 
 rule in Heath v. Pugh as to date of right of action, 209 
 tenant for life's action for, settled or agreed to be settled, 119 
 
 RECTIFICATION, 
 
 if agreement spent, no right to, 88 
 
 articles on marriage the grounds of, of settlement, 39 
 
 consent order, of, 89 
 
 a defence, 90, 223 
 
 not excluded by enrolment under Fines and Recoveries Act, 89 
 
 parol evidence, admission of, and cases of, 89 
 
 practice as to, 89 
 
 assigned to Chancery Division, 90 
 proof of debts in bankruptcy, of, 89 
 resettlement, of a, 89, 297 
 
 restraint upon anticipation removed for purposes of action for, 107 
 voluntary settlements without power of revocation, 27, 28 
 
 REDEMPTION, 
 
 period or periods for, 199, 200 
 
384 INDEX. 
 
 RELEASE, 
 
 not set aside under Order lv., r. 3, 277 
 set aside on the ground of mistake, 87, 88 
 general words in, limited, 87 
 See Power 
 
 RELIGION, 
 
 charity distinguished from, 51, 52 
 
 endowments of, preserved by cy-pres, and Statute, 50 
 
 infant's, controlled by father, 90-96 
 
 where father is irreligious, 94 
 
 or abdicates control, ib. 
 the Court is neutral towards different religions, 94 
 
 as a rule will not interfere with father's control, ib. 
 
 will not arbitrarily change infants' religion, ib. 
 undue influence, 78 
 
 REPRESENTATION, 
 
 by recital, 214, 312, 313 
 
 effect of, on notice, 188, 212, 312, 313 
 
 estoppel created by, 13, 30, 60, 61, 88, 189 
 
 RESTRAINT OP TRADE, 
 
 principle on which law as to, based, 303-306 
 recent cases on, ib. 
 world-wide restraint, 303-305 
 
 RESTRAINT ON ANTICIPATION, 
 destruction of, by spinster, 105, 106 
 effect of, on costs, 101 
 
 on capital, 106, 107 
 on election, 256, 258, 259 
 ineffectual with regard to antenuptial debts, 106 
 an express intention, 258, 259 
 removal of, 107, 108 
 
 for compromise 104, 107 
 
 new power as to, conferred on Court by Conveyancing Act, 
 
 1881, s. 39 . . 104, 107 
 history of doctrine of, 105 
 cases on, 107, 108 
 separate use essential, 105 
 is a settlement for purposes of perpetuity, ib. 
 not a settlement for purposes of S. L. Act, 107 
 solicitor's lien overrides, 176 
 
 RESTRICTIVE COVENANTS, 306-311 
 doctrine of Tulk v. Moxhay, 307 
 
 does not extend to covenants to lay out money or do any other 
 act, 306, 308 
 
INDEX. 385 
 
 RESTRICTIVE COVENANTS-con«nwed. 
 instances of, 287, 289, 290, 306 et seq. 311 
 for rules as to creation of, 308, 309 
 " assign " includes intending purchaser, 300 
 four rules deduced from cases on building estates, 308-310 
 release of land from, 311 
 practice, 310 
 
 RESULTING TRUSTS, 
 
 created by partial failure of gift, or lapse, 50, 62, 131 
 no, of surplus income of property given to charity, 50 
 presumption of, 
 
 when purchase in name of another, 5, 6, 9, 10 
 
 as between mother and child, 7, 8 
 relations in loco parentis, 7 
 
 none between living parties, 10 
 rebuttal of presumption, 
 
 by external evidence, 8-10 
 
 by intention to defeat the policy of the law, 9 
 
 by presumption of advancement, 10 
 
 as stated by Jessel, M.R., 7 
 Statute of Frauds, not within, 30, 292 
 See Advancement 
 
 RETAINER BY EXECUTOR OR ADMINISTRATOR, 165-10!) 
 right of, by executor on behalf of testator, 169 
 by executor on behalf of self, 165-169 
 compared with lien on money, 162, 180, 181 
 but is not a security, 167 
 
 only exists between debts of same degree, 166, 167 
 not affected by 
 
 32&33 Vict. c. 46..166 
 Judicature Act, 1875, s. 10 ..167 
 administration action, 167, 168 
 not assisted, Court is neutral, 166, 168 
 in one of the several executors, 169 
 in executor of executor, 168 
 in executor — mortgagee, 241 
 debts barred by Statute of Limitations, 165, 169 
 funeral expenses of wife, 169 
 partners' liabilities, 169 
 suretyship, 169 
 damages, annuities, etc., 169 
 debts, unenforceable under Statute of Frauds not included, 165, 166 
 no right of, where if debt were vested in another no action would 
 be maintainable, 165, 169 
 against real estate, 168 
 
 2 c 
 
386 INDEX. 
 
 RETAINER BY EXECUTOR OE ADMINISTRATOR— continued. 
 no right of, where it is abandoned, 169 
 
 where receiver is appointed, 168 
 Statutes of Limitations inapplicable where executor is legatee and 
 creditor, 241 
 
 REVERSIONARY PROPERTY, 
 
 assignment of unassignable, 259, 260 
 
 duty to convert, 133 
 
 illustrations of what is, 73 
 
 Married Women's Property Act, and accruer of title to, 96, 97 
 
 mortgagees of, acquire lien for payments, 250 
 
 partition action and, 123 
 
 receiver appointed of, 330 
 
 restraint from anticipating, 106 
 
 Sale of Reversions Act discussed, 69, 70 
 
 settled land includes, 116 
 
 spes successionis distinguished from, 70, 97 
 
 Statutes of Limitations and, 191, 209 
 
 time the essence of the contract on sale of, 317, 318 
 
 REVERSIONERS, 
 
 injunction, etc., at instance of, 113, 322 
 relief to, and expectant heirs, 69-73 
 See Expectant Heibs 
 
 RIPARIAN OWNER, 
 
 injunction, when not granted against, 328 
 
 s. 
 
 SALES OF REVERSIONS ACT (31 Vict. c. 4), 
 provisions of, 66, 70 
 
 SALVAGE, 
 
 principle of, applied to solicitor's charges, 104, 176 
 not applicable to law of lien on policy money, 251 
 
 SALVATION ARMY, 
 a charity, 51 
 
 SATISFACTION, 
 
 ademption and, three distinctions between, 265, 266 
 creditors and, law as to, 269, 270, 273 
 
 minute differences, e.g. of amount or time, rebut presump- 
 tion, ib. 
 where no time for vesting is mentioned, ib. 
 
INDEX. 387 
 
 SATISFACTION— continued. 
 definition of, 265 
 
 direction to pay debts or legacies and debts, 267, 268, 270 
 donatio mortis causa, 33 
 double portions, 265-268 
 
 ejusdem generis, doctrine as to, in double portions overruled, 268 
 evidence, admission of parol, to rebut presumption, 266 
 intention of the will, identity of parties essential, 267 
 
 small differences inessential, 267 
 particular purpose, gifts for a, 268, 269 
 
 SAVINGS BANKS, 
 
 law as to notice of trusts by, 29 
 
 SEPAEATB TRUSTEES, 
 
 provisions of the Trustee Act, as to, 29, 30 
 
 SERVICE OUT OP THE JURISDICTION, 
 R. S. 0, 1813, 0. xi. r. 1, governs, 5 
 
 not allowed, of summons under V. and P. Act, 1874, s. 9 .. 283 
 of originating summons, 5, 279 
 
 SETTLED LAND ACTS, 
 
 provisions of, as to forfeiture clause, 117 
 scope of Settled Land Act, 1882 .. 115 
 terms in Act which have special meaning — 
 
 settlement, 116 
 
 land, ib. 
 
 mansion house, 119, 120 
 
 tenant for life, 116, 117 
 
 trustees of settlement, 118 
 cases where imperative to apply to the Court, 119 
 cases where option of dealing with the trustees of the settlement 
 
 or going to Court, 119, 120 
 practice under, 120, 121 
 
 SETTLEMENTS, 
 
 presumption of advancement to son, 10 
 
 appointment and resettlement combined, 159 
 
 gift is settlement, 56 
 
 satisfaction by, 264 et seq. 
 
 Settled Land Act definitions, 116, 117 
 
 for value set aside, 58 
 
 usual provisions in, 39, 297 
 
 viewed with favour, 78, 296, 297 
 
 See Voluntary Settlement, Executory Trust 
 
 SEVERING IN DEFENCE BY TRUSTEES, 
 when allowable, 164 
 
388 INDEX. 
 
 SHELLEY'S CASE, 
 rule in, 36 
 
 application to executory devises, 36-39 
 cy-pres and, 158 
 
 SLANDER, 
 
 injunction to restrain, 326 
 
 SOLICITOR, 
 
 clerk of, fraud by, 189, 211 
 
 constructive notice of, when binding on client, 315, 316 
 
 contract with client, 
 
 duty of disclosure, 74-76 
 independent solicitor should be employed, ib. 
 independent advice illustrated, 73 
 instances, 73, 74, 75, 76, 82 
 ulerrimce fidei, 76 
 family arrangement, 
 
 solicitor may act for both parties, 296 
 effect of his representations, ib. 
 gift from client, 
 
 power to charge profit costs is a, 77, 173 
 void, 76, 77 
 
 unless trifling, 79 
 
 even though made to solicitor's wife, 77 
 by will should be proveable aliunde, ib. 
 instigation of breach of trust by, 16, 17, 18 
 
 See Constructive Trustee 
 injunction against, acting against former client, 328 
 lien, 
 
 general, 178 * 
 
 particular, does not extend to land, 176, 177 
 nor to more than client's interest, 177 
 property to which it applies, 176, 177 
 statutory, on moneys, etc., recovered or preserved, 174 et seq. 
 is assignable and transmissible, 176 
 is discretionary, 175 
 practice, 177 
 
 " recovered " and " preserved," case law on, 175, 176 
 salvage not coutract, 176, 177 
 priority as between different solicitors, 176, 177 
 London agent of, 
 
 costs against, 335, 336 
 costs of, 170, 172 
 
 inspection of documents at office of, 338 
 mortgagee of client, 76, 326 
 mortgagee, costs of, 172, 194, 195 
 injunction against, 326 
 
INDEX. 389 
 
 SOLICITOE— continued. 
 
 mortgagee's partner, costs of, 194, 195 
 
 notice, where solicitor acts for all parties, "187, 316 
 
 party, not to be made so for purpose of costs, 17 
 
 not a, yet costs against, 334-336 
 remuneration irrelevant in dealings of, with client, 75 
 settled accounts reopened, 173 
 trustee, 170-173 
 
 partner of, 17, 18, 170, 172 
 
 agent of, 172 
 
 appoints partner co-trustee, 143 
 
 town agent of, 170 et seq., 172 
 trustees' employment of, 13, 14, 16, 17, 18, 147, 149 
 
 as agent to receive purchase money, 150, 188 
 undue influence or fraud, 
 
 in cases of possible, solicitor should not act for both parties, 
 76 et seq. 
 
 independent solicitor, what is, 73 
 
 SPECIFIC PERFORMANCE, 
 law as to, 285 et seq. 
 contracts by correspondence, 286-289 
 
 Courts have gone far enough in " spelling out," 289 
 election implied from action for, 261 
 enforcing or refusing in cases of mistake, 86-89 
 
 where time is or is not of the essence of the contract, 317, 
 318, 319 
 refused, where no title, 86, 87, 118, 283, 319 
 
 where contract not for value, 295 
 
 but Court will not weigh quantum of consideration, ib. 
 
 where purchaser h8(S notice of a tenant, but not that he is a 
 lessee, 314 
 of rectified agreement, 89 
 
 where enforcible, tenant is lessee for all purposes, 299 
 though unavailable, negative stipulation may be enforced in 
 
 certain cases, 326 
 vendor and purchaser summons in place of action for, 281, 282 
 See Part Performance ; Statute of Frauds 
 
 STATUTE OF FRAUDS, 
 
 a weapon of defence not offence, 288 
 
 debt barred by, cannot be retained, 165, 166 
 
 but subsists for some purposes, 290 
 requirements, how satisfied, ib. 
 law as to, considered, 30, 286 et seq. 
 case taken out of, by fraud, 292 
 doctrine of part performance, 290-292 
 extends to, easements, 291, 292 
 
390 INDEX. 
 
 STATUTE OF FRAUDS— continued. 
 
 Lord Selborne's five classes of acts which do not amount to part 
 
 performance, 290, 291 
 marriage is not part performance, 291 
 
 resulting trusts implied and constructive trusts excepted, 30, 292 
 See Table of Statutes 
 
 STOCKBROKER, 
 
 fiduciary agent, 17 
 
 trustees', employment of, 145, 147 
 
 trustee may not make profit, 171 
 
 STOP ORDERS, 177, 178, 215 
 
 SUBROGATION, 163, 249, 250 
 
 SURETY, 
 
 continuing guarantee, 248 
 
 contracts uberrimce fidei, this contract resembles, 247 
 co-sureties, mutual rights of, 244-248 
 debt in bankruptcy, 247 
 equality of burden and benefit, 244, 245 
 hotchpot as to securities held by, 245 
 indemnity, right of, a simple contract debt, 245 
 
 until payment, when he stands in the place of the 
 
 principal creditor, 246 
 action for, lies before payment, 246, 247 
 insolvent and solvent co-sureties, rule as to, 246, 247 
 judgment against one surety, bars action against, 247 
 Limitations, Statute of, 247 
 discharge of surety by giving time, or not disclosing material 
 
 247, 248 
 effect of discharge on securities, 248 
 disclosure, duty of, discussed, 247 
 father and son, 57, 245 
 insurance, produced same effect as, 248 
 mortgage, surety to, 
 
 acknowledgment of indebtedness by mortgagee, effect on 
 
 207, 208 
 collateral bond, 208 
 
 costs of mortgagee of corresponding with, 192, 193 
 discharged by contract to consolidate, 219 
 redeems and consolidates, 246 
 Statute of Limitations and, 207, 208 
 receiver's surety, 248 
 retainer of suretyship debt, 169 
 securities of principal, entitled to, 246, 250 
 
 not vice versa, 245 
 Statute of Frauds, 292 
 
INDEX. 391 
 
 T. 
 
 PACKING, 215 
 
 TENANT FOE LIFE, 
 
 entitled to accumulations of vested share, liable to be divested on 
 
 contingency, 272 
 entitled to income of investments in specie, 132 et seq. 
 
 See Wasting Securities 
 instigating breach of trust, indemnity by, 106, 151, 152 
 investments by trustee must not unduly favour, 140, 149, 154 
 lessee, breaks covenants to repair, remedy, 140, 332 
 maintenance of, 136-138 
 mortgagee and mortgagor's duty to keep down interest, 208 
 
 presumption that he does his duty, 208 
 mortgagor neglects to pay interest, 201 
 nonmerger in case of payment of charge by, 225, 226, 242 
 payment for renewing leasehold, creates lien, 251 
 
 keeping policy on foot creates no lien, ih. 
 protected life interest, 117, 136 et seq., 137, 160 
 remainderman and, respective liability of, 251 
 
 enjoins, exercising powers improperly, 118 
 Settled Land Acts, 
 
 definition of, in, and illustrations, 114, 115, 116, 117 
 
 powers of, in, alone, 115 
 
 consent is necessary in case of assignment, 117 
 with the trustees, 118, 119, 120 
 or of the trustees for infant, 118 
 with the Court, 119, 121 
 
 is trustee of powers, 117 
 
 powers unassignable and destructible, ib. 
 waste by, sans waste, 110 
 
 impeachable for waste, 110-112 
 
 property in proceeds of, belongs to the next tenant for life, 
 sans waste, or remainderman, 111 
 
 ameliorating, 113 
 
 equitable, 108-110 
 
 permissive, 113, 140, 332 
 
 statutory under Settled Land Acts, 113, 114, 120 
 
 See Waste 
 
 TESTAMENTAEY EXPENSES, 
 
 include costs of an administration action, 238 
 
 TIMBER, 
 
 defined, 110, 111 
 estates, 111, 112 
 law as to. See Waste 
 
392 INDEX. 
 
 TIME THE ESSENCE OP THE CONTRACT, 
 fluctuating value, 317, 318 
 Judicature Act, 1873, s. 25, 317 
 mercantile contracts, 318 
 notice to make, 318, 319 
 particular purpose, 318 
 statement of law by Lord Cairns, 317 
 tendency of modern decisions, 318 
 
 TITLE DEEDS, 
 
 deposit of, 233. See Equitable Mortgage 
 
 non-possession of, affects priority of legal mortgagee, 211 et seq. 
 
 seven rules on this point, 212, 213 
 
 solicitor's general lien on, 177, 178 
 
 applicability of negligence to custody of, 211 
 
 constructive notice of, contents of, 212, 313 
 
 See Notice 
 
 TOMB, 
 
 repair of, 51 
 
 TORT, 
 
 when it does not die with the person, 113 
 injuries to foreign land, action for, 3, 4 
 
 to land contracted to be bought, 300 
 joint tort feasors, action against, 327 
 married women's, action against her, 100, 102 
 
 her husband, 100 
 measure of damages, 113 
 
 minerals dug or timber severed by a trespasser, law as to, 110 
 trustee indemnified out of estate for agent's, 162 
 
 TRADE LIBEL, 326 
 
 TRADE MARK, 326, 327 
 
 TRADE NAME, 327 
 
 TRADES UNIONS, 
 not a charity, 51 
 injunctions against, recent cases of, 324, 326 
 
 TRUSTEE, 
 
 acknowledgment by one of two trustees, and Statutes of Limi- 
 tations, 209 
 
 agent, contrasted with, 42, 291 
 
 is, though called trustee, 43, 60 
 
 agents for trustees, liability of, 13-18, 181-186 
 See Constructive Trustee 
 
 agents' fraud may bind principal, 189, 190. See Fraud 
 
INDEX. 393 
 
 TRUSTEE— continued. 
 
 constructive. See Constructive Trustee 
 default by, and Debtors' Act, 186 
 
 and administration actions, 277 
 discretionary powers of, 
 
 administration action suspends, 141-144 
 lis pendens, suspends, 144 
 
 as to powers of appointment of trustees, 142 
 investment, ib. 
 maintenance, 144 
 schemes for charities, ib. 
 not controlled, 136 et seq. 
 controlled for corrupt motive, 140 
 impartiality necessary, 149, 154 
 investment, 139, 140 
 maintenance, 136-139 
 
 may not alter rights as between tenant for life and remainder- 
 man, 132-135 
 cannot postpone vesting of shares, 141 
 employment of agents by, 145-154 
 auctioneer, 17 
 bailiff, 162 
 banker, 150, 185 
 barrister, 162 
 
 solicitor, 147, 149, 150, 163, 178, 188 
 stockbroker, 145, 147 
 valuer, 147, 148, 149, 151 
 implied trustee, 190 
 
 is within Statute of Limitations, 1888 .. 189, 190 
 is excluded from Statute of Frauds, 30, 292 
 gift to a wife under old law to her separate use makes 
 husband, 190 
 investments by, 
 
 conditions of sale and, 151 
 
 direction of tenant for life as to, under Settled Land Acts, 
 
 117 
 discretion as to, 139, 140, 142 
 duty to convert wasting securities, 132-135 
 on mortgage, 147, 148, 149, 151 
 originating summons for directions as to, 150, 278 
 speculative securities, 149 
 statutory investments, 152-154 
 statutory indemnities, 
 
 in case of valuation, 151 
 
 request of life-tenant, 151, 152 
 variation of, 154 
 notice to one of two trustees, 215 
 payment to one of two trustee-executors, 18 
 
394 INDEX. 
 
 TRUSTEE— continued, 
 
 power to postpone conversion must be exercised by all the trustees 
 
 unanimously, 140 
 power for one of several executors, also one of several trustees, 
 
 to retain debt to trust estate, 169 
 remedy of, 
 
 indemnity from tenant for life, 106, 151, 152 
 indemnity from trust property which, is charged with his 
 expenses and costs, 160-164 
 charge on income as well as capital, 162 
 costs, priority of, 163 
 if bankrupt, 280 
 expenses illustrated, 162, 163, 250 
 property of which he is trustee only included, 163 
 subrogation, 163, 250 
 remedy against, 
 
 when trustees may sever, 164 
 costs against trustees, 164, 276 
 no order as to costs, 164 
 accounts ordered in lieu of administration, 276 
 action for damages, 300 
 criminal liability, 186 
 following trust fund, 179-186 
 receiver appointed instead of ft. fa., 333 
 Statute of Limitations, 187-191 
 wrongful investment by trustee, 191 
 remuneration of, 29, 78, 163, 171 
 solicitor's costs, 170-173 
 
 TRUSTEE, APPOINTMENT OF, 
 in administration action, 142, 143 
 who may or may not be, 28, 29 
 aliens may be, 28 
 
 appointor may not appoint himself, 29 
 bankrupts may be, but bankruptcy ground for removal, ib. 
 Bank of England cannot be, 29 
 cestui que trustent should not be appointed, 29 
 corporations, municipal, may be, 28 
 infants should not be appointed, ib. 
 Judge in Chambers makes, 279 
 married women may be, 28, 29, 102, 103 
 
 exceptions, ib. 
 National Debt Commissioners may not be, 29 
 partners, 143 
 
 of policies under Married Women's Property Acts, 98 
 relatives should not be appointed, 29 
 Settled Land Acts, "trustees of the settlement," 118, 119 
 
INDEX. 395 
 
 TRUSTEE, APPOINTMENT OF— continued. 
 under Trustee Act, 1893, provisions of, as to, ib. 
 
 appointment of separate sets of, under, 29, 30 
 validity of, tried by V. and P. summons, 283 
 vesting order, 278 
 
 TRUSTEE IN BANKRUPTCY, 
 
 disclaimer of onerous property by, 299 
 
 officer of Court, duty as, 82, 83 
 
 receiver appointed by, 333 
 
 sale by, of goodwill of bankrupt, effect of, 302 
 
 Settled Land Acts, must consent to sale by bankrupt tenant for 
 
 life under, 117 
 solicitor, remuneration of, 173 
 solicitor's purchase from, of client, 76 
 Statutes of Limitation and, 189 
 title of, subject to solicitor's lien, 177 
 
 and to trustee's costs, 57 
 " void " or " voidable " against, 57, 58, 62 
 
 TRUSTEES OP SETTLEMENTS, 
 under Settled Land Acts, 118 et seq. 
 
 TRUST FUNDS, 
 
 custody of, by agent for trustee, 146 et seq. 
 
 the duty of the trustee, 147 
 right to follow, 179-186 
 
 an account questioned, 88, 186 
 
 an equitable interest, 180 
 
 as between cestuis que trustent, priority in time determines, 
 181 
 no right to follow, 
 
 where purchase for value without notice, 184, 185 
 
 where trust is not bond fide, 183, 184 
 
 and in other cases, 183-186 
 
 TRUSTS, 
 
 for animals, 51 
 
 must be bond fide, 183, 184 
 
 conditions and, 21, 158, 159 
 
 constructive trusts of foreign land unenforceable, 4 
 
 for conversion, 139, 140. See Conversion 
 
 creation of, compared and contrasted with gifts, 22-30 
 
 creditors' trust deed, 59 et seq. See Creditors 
 
 direction in will and, 124, 136 et seq., 140, 157, 158, 159, 191 
 
 in deed, when not a, 60 et seq. 
 donatio mortis causa takes effect by means of a trust, 31, 32 
 duty and trust, compared in their effects, 139, 140 
 of foreign land, when unenforceable, 4 
 
 of proceeds of sale, enforceable, ib. 
 
396 INDEX. 
 
 TRUSTS— continued. 
 
 formlessness of, stated by Lord Selbourne, 23 
 by Jessel, M.R., 23, 25 
 
 imperfect gifts not, except in case of a donatio mortis causa, 
 22 et seq., 31, 32 
 
 implied trusts, 190, 191 
 
 are indivisible, never principal and ancillary, 2 
 
 investment trust is not a company for business involving gain, 
 39-43 
 
 are irrevocable, 27, 62 
 
 but if for creditors, until they are made proper trusts, are re- 
 vocable, 60, 61 
 
 powers and trusts, contrasted, 124, 125, 136, 137, 156, 237 
 blended (discretionary trusts), 136-140, 160 
 defined, 136, 137, 160 
 
 power construed as, 140 
 
 Statute of Frauds, 30, 292 
 
 iSee Resulting Trusts ; Precatory Trusts 
 
 TWO-THIRDS RULE, 
 in equity, 148, 149 
 statutory, 151 
 
 u. 
 
 UNDERTAKING, 
 
 as to infants' custody and education, 92 
 injunction, in cases of, 323 
 
 against solicitor dissolved, on, 328 
 in lieu of injunction, 323 
 in partition action, 123, 125 
 
 solicitor handing papers to another solicitor should obtain, 178 
 trustees paying money to parent for maintenance should obtain, 
 
 139 
 
 USURY, 
 
 an element in fraud, 70 
 
 UNDUE INFLUENCE, 
 
 actual, mixed with presumptive fraud, Evans v. Cheshire, 73 
 
 mixed with presumptive undue influence, 78 
 
 physical infirmities taken advantage of, 79 
 presumptive, between guardian and ward, 78 
 
 parent and child, 78, 1 58 
 
 solicitor and client, 76, 77, 82 
 
 trustee and cestui que trust, 77 
 and others, 78 
 
 and family arrangements, 296, 297 
 mistake due to, relief against, 82 
 ratification of contract made under, 79 
 
INDEX. 397 
 
 Y. 
 
 VALUER, 
 
 appointment of, by trustees, 147, 148, 149, 151 
 
 VARYING INVESTMENTS, 153, 154 
 
 VENDOR AND PURCHASER ACT, 1874, s. 9, 
 provisions of, and cases thereon, 89, 281-284 
 object of, and connection with action for specific performance, 282 
 practice under, ib., 282, 283 
 time for appealing under, 283 
 questions decided under, 283, 284 
 
 VENDORS' LIEN, 
 
 provisions of Locke King's Amendment Act as to, 231-233 
 
 VESTING ORDER, 
 
 persons under disability, 126 
 new trustees, 278 
 
 VOID and VOIDABLE, 
 distinguished, 213, 257 
 in bankruptcy legislation, 57, 58, 62 
 infants' contracts, 74, 256 
 instruments ratified, 257, 259, 260-263 
 
 Statute of 13 Eliz. c. 5, makes conveyances void against or void- 
 able by subsequent as well as existing creditors, 55, 56 
 
 VOLUNTARY SETTLEMENTS, 
 creation of, 25, 26, 27 
 definition of, 28, 56 
 
 probably includes transfer of leaseholds, 56 
 
 includes gifts for purpose of Bankruptcy Acts, 56 
 family arrangements are, 56, 294 
 irrevocable against settlor, 27, 62 
 marriage settlement is voluntary as to collaterals, 56 
 rectification of, 27 
 on title, effect of, 58 
 void against creditors, 54 et seq. 
 
 including subsequent creditors, in certain cases, 56 
 See Fraud on Creditors 
 void against trustee in bankruptcy, 58 
 
 or voidable (?), 57 
 See Trustee in Bankruptcy 
 void formerly against purchasers for value, 61, 62, 242 
 See Gift 
 
 VOLUNTEER CORPS, 
 a charity, 51 
 
398 INDEX. 
 
 w. 
 
 WASTE, 108-114 
 Act of God, 110 
 
 ameliorating, 113.; compare 124, 194 
 equitable, 108-110 
 history of, 111 
 
 Judicature Act, 1873, s. 25, sub-sect. 3 . . 110 
 legal, 110-114 
 measure of damages, 113 
 mines, minerals, etc., 110, 112 
 mineral estates, 112 
 permissive, 113, 140, 332 
 quarries, 112 
 Statutes, 
 
 Conveyancing Act, 1881 ..114 
 
 Improvement of Land Act, 1864.. 113 
 
 Settled Estates Act, 1877 .. 113 
 
 Settled Land Act, 1882 .. 113, 114, 120 
 timber defined, 110, 111 
 timber estates, 111, 112 
 trespasser, 110. See Tenant for Life 
 
 WASTING SECUKITIES, 
 conversion of, 132-135 
 
 rule of Howe v. Earl of Dartmouth as to, stated by Court ot 
 Appeal, 133 
 to be applied unless sufficient indication of contrary inten- 
 tion, ib. 
 illustrations, where applied, 133, 134 
 where not applied, 134, 135 
 
 WILL, 
 
 accumulations of income of gifts by, time-limit, 53, 274 
 and powers of maintenance, 271-274 
 See Accumulation ; Maintenance 
 construction of gifts by, 
 to charities, 44 et seq. 
 other cy-pres constructions, 38, 158, 274 
 
 See Cy-pees ; Perpetuity 
 one beneficial, another onerous, 263. See Election 
 residuary gift, where conversion ordered, 131 
 where there is a duty to convert, 133 et seq. 
 
 See Conversion ; Wasting Securities 
 where particular gift fails after testator's death, 49, 50 
 and specific gift, 238. See Legacy 
 
INDEX. 399 
 
 WILL — continued. 
 
 direction by, and trust contrasted, 124, 157, 158, 159, 191 
 compared, 136 et seq., 140 
 power contrasted, 140, 237 
 . to marshal debts for charities, 243 
 to pay debts and devise to executors, 237 
 does not make a gift executory, 38 , 
 out of land, 237 
 out of personalty, 231, 232, 233, 234 
 
 See Locke King's Acts 
 rebuts satisfaction, 268, 270 
 when a fraud on a power, and void, 158 
 distinguished from a power, 237 
 to settle sans waste or as counsel advises, etc., 
 when executory, 37, 38 
 executory trusts in, 
 
 executed as in marriage articles, 37-39 
 foreign lands, of, 4 
 imperfect, 
 
 not a donatio mortis causa, 33 
 acted on, 293, 294 
 impossibility, 
 
 of executing gift by, usually avoids, 49 
 infant cannot make, 93 
 lapse of gift by, 50 
 by married woman, 100 
 
 gift in, when void, 99 
 maintenance directed by will, 138, 139, 144, 158, 159, 191, 273 
 
 by Conveyancing Act, 271 et seq. See Maintenance 
 Mortmain Acts, 
 
 provisions of, as to gifts by will of land, 54 
 precatory trusts, 19-22. See Precatory Trusts 
 recital, a writing within the meaning of the Statute of Frauds, 
 
 289 
 residuary devise ranks as specific, 233, 237, 273 
 uncertainty in gift usually avoids, 48, 49 
 
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