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 A TREATISE 
 
 ^ato anir Bractitc 
 
 RELATING TO 
 
 VENDORS AND PURCHASERS 
 
 REAL ESTATE. 
 
 By J. HENRY DART, 
 
 OF LIXCOLX'S IXX, ESQ., BARRISTER-AT-LAW, ONE OF THE SIX COXVEY.VXCING COUNSEL OF THE 
 HIGH COUET OF CHA3ICERY. 
 
 THE FIFTH EDITION, 
 
 BT 
 
 THE AUTHOR and WILLIAM BARBER, 
 
 OK LlXCOLX's IXN, ESQ., B.\RR1STEK-AT-L.\W. 
 
 IN TWO VOLUMES. 
 VOL. I. 
 
 LONDON : 
 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 "^(ili) ihiblisjrcrs <inb liffohscllcv.?. 
 
 J 876.
 
 LONDON : 
 STEVENS AND RICHARDSON, FEINTEKS, 5, GREAT QUEEN STREET, 
 
 Lincoln's inn fields, av.c. 
 
 T
 
 
 V) 
 
 V 
 
 THE RIGHT HONOURABLE WILLIAM PAGE, 
 
 BARON HATHERLEY, 
 
 LORD HIGH CHANCELLOR OF GREAT BRITAIN, 
 
 THE 
 
 cilfolloiting "Satorli 
 
 IS, 
 
 BY PEHMIrfSION, 
 MOST RESPKCTl-ULLY DEDICATED. 
 
 722734
 
 PREFACE 
 
 TO THE FIFTH EDITION. 
 
 The Fourth Edition of the present work was published in 
 December, 1870, and has during the greater part of the 
 intervening period been out of print. 
 
 The delay which has attended the appearance of the 
 present edition has enabled the author and his former co- 
 Editor (whose services he has again been fortunate in 
 securing) to embody in the work a large mass of additional 
 — and, in some of the chapters, of substituted— matter, con- 
 taining the result of five years' decisions, and of the very 
 important enactments which, during that period, have 
 received the sanction of the Legislature. 
 
 The authorities are, by the aid of the Addeiida, brought 
 down to the end of the Long Vacation, 1875. 
 
 Lincoln's Inn, 
 
 December, 1875.
 
 CONTENTS. 
 
 Volume I. 
 
 CHAPTER I. 
 
 AS TO RESTRICTIONS ON THE GENERAL CAPACITY TO BUY OR SELL 
 
 REAL ESTATE. 
 
 1. Who are generalli/ mcompetent to sell, p. 1. 
 
 Infants, 2 — lunatics, 5 — married women, 8 et seq. — before the late Act, 
 12— traitors, felons, &c., ib.— other incapacitated owners, 14— charity , 
 trustees, 16 — ecclesiastical corporations, 17. 
 
 2. Mlio are relatively incompetent to sell, p. 18. 
 
 Persons having no transferable title, 18— or standing in special relation to 
 proposed pui-chaser, 19. 
 
 3. Who are generalli/ incompetent to furchase, p. 20. 
 Corporations, except by license, «S:c., 20— unincorporated classes, 21— aliens 
 
 before the late Act, 22— Naturalization Act, 1870, 23— infants, 25— 
 lunatics, 27— married women, 28— traitors, felons, &c., 29— bankrupts, ih. 
 
 4. Who are relatively incompetent to purchase, p. 31. 
 
 Persons filling fiduciary character, 31— to what fiduciary relations the rule 
 applies, 32— purchaser bound at option of parties interested, 38— 
 exceptions from general rule, 39— risk incurred, 44— time for impeach- 
 ing sale, 48— confirmation and acquiescence, t6.— classes more favoured 
 than individuals, it.— confirmation of voidable purchase, 49— ac(iuies- 
 ceuce and confirmation distingtiished, 51. 
 
 CHAPTER II. 
 
 AS TO SALES BY FIDUCIARY VENDORS. 
 1. ^s to time for sale, p. 52. 
 By agents, 53-assignees, ^i.-trustcu of bankrupt under the recent Act, 
 54-mortgagees, ^6.-statutory owners, 56-trustees for sale,- SB- 
 executors under implied power of sale, 60-remarks on Sabin v. Heape, 
 61-sale by trustees under power of sale, it.-donees of conditional 
 powers of sale, 64— conditions subsequent and precedent, ib.
 
 viii CONTEXTS. 
 
 2. As to manner of sale, \i. 65. 
 Whether l.y auction or private contract, 65— together or in parcels, 67— 
 generally, 68— by mortgagee, 71— notice of sale to be given to whom, 
 72— sale under depreciatory conditions, 73— sale by mortgagee at request 
 of mortgagor, 74— sale under a power exercisable with a specified con- 
 sent, 75— power of sale when it authorises a mortgage, 77— whether 
 a trustee with power to mortgage can give a power of sale, 78— power 
 of sale authorises enfranchisement, ih. 
 
 3. — As to irrice, p. 78. 
 Must be a gross sum, 78— how the price should be ascertained, 79— reserved 
 biddings, 80— opening biddings, 81— sales under Lands Clauses Consoli- 
 dation Act, i6.--election by assignees of bankrupt under late law, 83— 
 disclaimer by trustees of bankrupt under new law, 84. 
 
 4. General points relating to sales hi/ fiduciary vendors, p. 84. 
 General liability, 84— sales by, seldom restrained, 86— liability of trustee 
 de son tort, ib. — may not make a profit out of the sale, ih. 
 
 5. As to purchases hy trustees, jd. 87. 
 Special authority required, 87 — what investments authorised, 88 — time, ih. 
 — mode of investment, 89 — general points, ib. 
 
 CHAPTER III. 
 
 AS TO THE RELATIVE DUTIES OF VENDORS AND PURCHASERS PRIOR TO 
 
 THE SALE. 
 
 1. As to the disclosure, or concealment, of defects, incumbrances, &c., hy 
 
 vendor, p. 91. 
 
 Patent and latent aeiect^, 91— agents, 92— matters of title, 94— matters of 
 which purchaser has notice, 95 — what facts material, 97 — inquiry of 
 inciimbrancers and trustees, 98. 
 
 2. As to commendatory statements, d-c, hy vendor, p. 99. 
 Puffing statements, 99 — at Law and in Equity, 101 — where the stixteraents 
 are false in fact, ti. — stranger when liable for, 102 — guarantee of solvency, 
 104 — rescinding coutra.'^t in Equity, 104 — misrepresentation by a public 
 company, lOo. 
 
 3. As to concealment, d-c, of advantages by imrchaser, p. 106. 
 He need not disclose concealed advantage, 106 — but must not mislead 
 Vendor, 107 — must disclose faet increasing vendor's interest, ih.
 
 CONTENTS. IX 
 
 4. As to depreciatonj remarks, d;c., by imrchaser, p. 107. 
 A defence in Equity, 108— whether a ground of action, i6.— agreement 
 with, not to bid against, legal, ih. 
 
 CHAPTER IV. 
 
 AS TO THE PARTICULARS AXU CONDITIONS OF SALE. 
 
 1. General matters relating thereto and their construction, p. 109. 
 How generally construed, 109— catching conditions, 110— verbal declara- 
 tions at sale, ih. — parol evidence, 112— alteration of printed particulars, 
 ih.— sale witliout reserve, ih. — under recent statute, 113. 
 
 2. As to the preparation and contents of 'particulars, p. 113. 
 
 Description of property, 113 — what particulars should state, 114 — what 
 estate and advantages implied, 115— minerals, 116 — permanent charges, 
 &c., ih. — notice, 117 — misrepi'esentation, &e., 118— removal of buildings 
 120— reference to plan, ih. — intended improvements, 121 — adjoining 
 land described as building land, i6.— lights, 122— particular descriptive 
 expressions, ih. — precautions to be observed on sale of manor, 123. 
 
 3. As to the conditions, p. 124. 
 
 Against retracting biddings, 124 — for withdrawing lots, ih. — for reserved 
 biddings, 125 — as to the deposit, ih. — delivery of abstract, ih. — perfect 
 abstract, 126 — time for comi^letion and interest, 127 — receipt of rents 
 and profits, 128 — conveyance, 130 — apportionment of rent, ih. — crops, 
 fixtures, and timber, 132 — misdescriptions and compensation, 134 ct seq. 
 — deeds, attested copies, &c., 142 et seq. — against production of lessors' 
 title, 145 — as to recitals being evidence, 147 — as to deeds twenty years 
 old, ih. — as to statutory declarations, 148 — title, &c., 149 ct seq. — 
 identity, 153— expenses, 156— indemnity, 156— time for objections and 
 rescinding, 157 et seq. — as to resale and forfeiture of deposit, 162 — 
 general rules as to framing special conditions, 163. 
 
 4. What special conditions are cjcnerally requisite in various specified cases, 
 
 p. 164. 
 
 On sale of inclosed lands, 164— lands formerly waste, 165— encroachments, 
 i6.— grants from the Crown, 166— enfranchised copyholds, i?).- copy- 
 holds late waste, z6.— leaseholds, 167— what are usual covenants in a 
 lease, 168— as to the evidence of covenants having been performed, 169 
 —as to apportionment of rent and liabilities, 171— as to title on sale of 
 renewable leaseholds, ih. — on sale of reversion, ih.
 
 X CONTENTS. 
 
 5. Ge7ieral remarks on special conditions, p. 172. 
 Use of, by fiduciary vendors, 172 et seq. — expenses on sale in lots, 173 — 
 power to sell under, 174 — misdescriptions, 175 — costs, ib. — concluding 
 remarks on special conditions, 176. 
 
 CHAPTER V. 
 
 THE SALE AXD MATTERS CONNECTED THEREWITH. 
 
 1. Auction, ivJiat it is, p. 177. 
 Defined, 177 — express direction to sell by, ib. 
 
 2. The auctio7ieer, his liahilities, power, and remuneration, p. 177. 
 
 When liable as principal, 177 — cannot vary terms after sale, 178 — his 
 power, &c., as respects deposit, ib. et seq. — commission, 180 — insolvency 
 of, 181 — agent for parties within Statute of Frauds, ib. — revocation of 
 his authority, 182 — if agent, right of, to sue principal, ib. 
 
 3. Agents, p. 182. 
 
 How appointed, 183 — by a corporation, ib. — private instructions to, ib. — 
 his general authority, ib. — apparent agent, 184 — agency denied, ib. — 
 contract by agent, nominally as principal, or by nominal agent, ib. — 
 contract by, how to be signed, 185 — of undisclosed principal, 186 — has 
 no implied power to receive purchase-money, ib.— order to pay it over, 
 ib. — commission, 187 — authority of, may be revoked, 188 — or unautho- 
 rised acts adopted, when, ib. — how far a public company is bound by the 
 acts of its promoters, 189 ct seq. 
 
 4. Tlie deposit, p. 191. 
 
 Its nature, 191 — how to be paid, ib. — cheque for, ib. — investment, 192 — 
 return of, 192 — forfeiture, ib. — retainer by vendor, 194 — loss, ib. — 
 lunacy, ib. — forfeited on settled estate, who entitled, ib. 
 
 5. J^uffers and reserved biddings, p. 194. 
 
 Rule at law as to employment of a puffer, 194 — rule in Equity, 195 — 
 purchasing by mistake, ib. — " Sale of Land by Auction Act, 1867," ib. 
 
 CHAPTER VI. 
 
 AS TO THE AGREEMENT. 
 
 1. General necessity for a written agreement, p. 197. 
 Statute of Frauds, 197 — what sales not within, ib. — what agi-eements are 
 within, 199 ct seq. — growing crops, 201 et seq. — emblements, 203 — 
 tenant's agreements, ib. — furnished lodgings, 204 — tenant's fixtures, ib. — 
 agreement partially A'oid, when void in tofo, ib.
 
 CONTENTS. XI 
 
 2. Preparation of formal agreements^ p. 205. 
 
 Eepresentatives, whether to be named in, 205— agreement on sale by 
 auction, ib.— on private sale, 206— on sale to railway companies, &c., ih. 
 
 3. What informal documents may constitute an agreement, p. 207. 
 ^Vhat a sufficient agi-eement, 207— letters, receipts, &c., &c., ib. et se/jr.— as 
 to contracts of pre-emption, 208— as to effect of notice to or by railway 
 companies, &c., 209 et seq.—a. written agreement after, in pursuance of 
 a parol agreement before marriage, 215 — rent-rolls, abstract, &c., insuffi- 
 cient, i6. — document must consist with alleged parol agreement, 216 — 
 names of parties, 217— offer by letter, 218— description of propery, 219 
 —terms must be fixed, 220 et scq.—]}rice, 221— determinable by valua- 
 tion, ib. — by arbitration under Common Law Procedure Act, 1854, 223 
 — reference to other documents containing terms sufficient, 225 — patent 
 ambiguity and defective reference distinguished, 226 — correspondence, 
 when an agreement, 228— conditional acceptance, 229 — withdrawal and 
 acceptance of offer, 230 — agreement sent as instructions, 231. 
 
 4. The signature, p. 231. 
 
 Of pai-ty charged sufficient, 231 — election, 232— signature by agent, ib. — 
 signature, 233 — place for, ih. — as witness, 234— approval of draft agree- 
 ment, &c., ib. — signature by public companies, 235 — alteration of agree- 
 ment, 236. 
 
 5. The stamps, p. 236. 
 
 As to the stamps on agreement, 236 — cases of exemption, 237 — several, ih. 
 —loss of unstamped agreement, 238 — agreement in evasion of stamp 
 laws, 239. 
 
 6. Illegal agreements, p. 239. 
 Agreements for illegal purpose void, 239 — champerty and maintenance, ib. 
 et seq. — splitting votes for elections, 242 — simony, ib. — contingent inte- 
 rests, &c., 243 — by companies before registration, ih.— hy mortgagee at 
 date 'of mortgage, 244. 
 
 CHAPTER VII. 
 
 EFFECT OF THE COXTUACT OX RIGHTS OP THE PARTIES. 
 1. Purchaser entitled to estate and vendor to purchase-money, p. 245. 
 Vendor, how far a trustee for purchaser, 245— estate bound, though vendor 
 a trustee, &c., 240.
 
 xii CONTENTS. 
 
 2. Purchaser's general rights tinder contract as against vendor, p. 246. 
 
 CJeueral nature of his interest, 246 — alienation of property, 247 — crojis, 
 windfalls, timber, &c., ih. — accidental benefits and losses, 248 — restric- 
 tions on purchaser's right, 249— compulsory power of purchase, 251. 
 
 ?>. Vendoi's general rights tinder contract against imrchaser, p. 251. 
 
 Vendor has a lien ou estate, 251 — judgment against, ib. — may keep estate 
 and deposit, when, 252— rights of, as landlord, ib. — use and occupation, 
 ib. — expenditure, 253. 
 
 4. Rights of vendor and 'purchaser, inter se, not affected by death, banhruptct/, 
 
 cL-c, of cither 'party, p. 253. 
 
 Election by assignees of bankrupt under the old law, 253 — disclaimer by 
 trustee of bankrupt under new law, 254 — plea of bankruptcy, 255. 
 
 5. Beatli of vendor before completion : its eff'ect on relative rights of his real 
 
 and persoiud representatives, under old caul under new lavj, p. 255. 
 
 Purchase-moneys go to personal, and interim rents and legal estate to real 
 representatives, 256 — under old law contract revoked prior devise in 
 Equity, t7j. — relative rights of representatives depended on his liability 
 to perform contract, 257 — conversion, 258 et seq. — subsequent events 
 immatei'ial, 261 — rescinding or abandonment of contract, ib. — estate 
 contracted for, how affected by devise, 262 — 1 Vict. c. 26, 244 — Mort- 
 main Act, 263. 
 
 6. Death of purchaser before completion; its effect on relative rights of his real 
 
 and personcd representatives, tinder old and under nevj laic, p. 264. 
 
 Such rights depended on his liability to perform contract, 264 et seq. — 
 heir's claim ou personal estate, 265 — relative rights of heir and devisee, 
 266 —election, 267 — devisee's right to purchase-money, ib. — conveyance 
 revoked will, when, ib.— devise of laud contracted for, &c., 268 — repub- 
 lication, ib. — 1 Vict. c. 26, 269 — purchase of fee by termor, 270 — merger, 
 271. 
 
 7. Effect of contract utid.er various specicd cases, p. 271. 
 
 Sale or purchase by mortgage, 271 — equitable purchaser of lease, 272 — 
 lessor buying underlease,?"?). — assignees selling lease, ^6.— agreement for 
 sale by trustee or bankrupt under new law, 273 — ^joint-tenancy, ib. — 
 dower, ib. et .^cq. — legacy duty, 274— succession duty, 275 — cases on the 
 Succession Duty Act, 276 et seq.
 
 CONTENTS. xiii 
 
 CHAPTER YIII. 
 
 Ai? TO THE ABSTRACT. 
 
 1 . General matters relating to the abstract, p. 279. 
 Purchaser's right to, and to retain, 279 — where he buys a mere contract 
 for sale, ih. — who pays for, 280 — on sales to railway compan}'-, ib. — 
 charges for copy, ib. 
 
 2. When it is 'perfect ; — what it must contain and shore, p. 281. 
 When perfect, 281 et seq.— should state consent, of necessary parties, 282 — 
 legal estate, ib. — future title, 283 — incumbrances, ib. — conveyance delayed, 
 284— tenancy in tail, 285. 
 
 3. JVhat should be furnished in various cases, p. 286. 
 On purchase by tenant in common, &c., 286 — of allotment, ib. — land taken 
 in exchange, ib. et seq. — when taken from a charity, 288 — estate exone- 
 rated from tithes by exchanges, 289 — attendant terms, ib. — enfranchised 
 copyholds, ib. — leaseholds, 290 — shares in mines, 291 — of railway shares, 
 292 — or pews, ib. — must go back, how far, 293, et seq. — on sale of a rever- 
 sionary interest, 294 — on sale of tithes, 295— rule where estate is merely 
 equitable, ib. 
 
 4. Its 2>re])aration, contents, and delivery, p. 295. 
 
 It should generally commence with a document, 295, et seq. — and be con- 
 tinued regularly, 298 — all documents affecting legal estate should be 
 abstracted, 299 — statements of pedigree, ib. — documents evidencing im- 
 material or satisfied equities, ib. et seq. — Drummond v. Traccy, 301 et seq. 
 — liability of vendor's solicitor for suppressing incumbrance, 302— loss 
 of deeds, 303— should notice judgments, &c., ib. — and be accompanied 
 by what documents, &c., ib. — should be copied legibly, &c., 304 — non- 
 delivery of, ib. — abstract of title to estate with registered title, 305. 
 
 5. Its examination and perusal, p. 306. 
 
 "When to be compared with deeds, 306 — consulting counsel, ib. — as to value 
 of old opinions in favour of a title, 307 — its perusal, 308 — acceptance of 
 title shown by, 309 — as to disclosure' of effects where one solicitor em- 
 ]iloycd by both parties, ib. 
 
 6. Verification of the abstract, p. 310. 
 
 What evidence is requisite in proof of documents .ind facts, 310 — proof of 
 private Acts, t'&.—uf awards, ib.— oi copyhoM assurances, ib. — of deeds, 
 312— recitals of deeds when evidence, 313 — proof under stixtutes, 315 — 
 certified copies, ib. — proof under Fines and Eecoveries Act,316— of pro- 
 ceedings at Law and in Equity, ih.—m Bankruptcy, 317— orders in
 
 xiv CONTENTS. 
 
 lunacy, 318 — as to notarial acts, 319 — as to parochial registers, ih. — 
 proof of will, tb. ct scq. —documents to be produced as negative evidence, 
 322 — deficiencies in proofof documents, supplied by presumption, i6.ci seq. 
 — not of certain forms required by Law, 326 — general rule of presump- 
 tions, 327 — as to recitals being evidence under V. & P. Act, 1874, 327 — • 
 evidence of matters of fact, 328 et seq. — negative evidence, &c., ih. — 
 iuquix-ies, 329 — adverse notice, not acted on, 330 — proof of will in Equity, 
 ib. — confidential communications, ih. — negative evidence, 331 — want of 
 l)roof of material facts, supplied by presumption, 333 et seq. — as to 
 identity of parcels, 303 — of individuals, 33-1 — of seisin, ib. — as to strips 
 of waste, 335 — of intestacy, ih. — of descent, 326 — of legitimacy, ih. — of 
 niamage, 338 et seq. — of death, 340 et seq. — of svu'vivorship, 344 — of failure 
 of issue, 345 ct seq. — matters of pedigree, how proved, 346 et seq. — decla- 
 rations, 347, 349, 350 — recitals, 350 — land tax, redemption of, 352 — tithes, 
 law respecting, under 2 & 3 Will. 4, c. 100, and 3 & 4 Will. 4, c. 27, ih. 
 ct seq. — tithes, how affected by Statute of Limitations, 356 — Nature of 
 title under Prescription Act, ib. — as to claims of light, 357 — whether lost 
 by enlai-gement or alteration, 358— as to the extent to which the right 
 may be claimed, 359 — as to easements other than light, 361 — rights of 
 way, public or private, 362 — way of necessity, ib. — how right may be 
 lost, 363 — as to right of watercourse, 364 et seq. — distinction between 
 natural and artificial watercourses, 366 — as to canals, 367 — as to owner- 
 ship of bed of stream, ih. — as to right of lateral support, 368 — when right 
 of action accrues, 369— rights of common and profits « prendre, 371 — 
 period for which possession must be proved, 373 — enjoyment must be 
 uninterrupted and as of right, 374 — except in what cases, 375 — what is 
 interruption, ib. — title by possession under 3 & 4 Will. 4, c. 27, 376 
 et seq. — what is land within the statute, ih. — savings iinder it, 378 — in 
 cases of express trust, 3nO — in cases of fraud, 382 — charities within the 
 Act, ih. — right of action saved by acknowledgment, 383, 386 — when time 
 begins to run in certain specified cases, 387 eZ seq. — what are suits within 
 the Act, 394, 395 — arrears of rent, &c., 398 — purchaser must accept title 
 depending on statute, 401 — ^possession under Act bars the right, 402 — 
 adverse possession as against the CrowTi, 405 — Eeal Property Limitation 
 Act, 1874, 405. 
 
 CHAPTER IX. 
 
 AS TO TlIK rRODUCTION A^.D EXAMINATION OF THE DEEDS. 
 
 1. As to the time, place for, and expenses of production, p, 407. 
 Ytiidor bound to produce deeds, 407 — where to be produced, ih. — expenses, 
 I'l. — notice of place, 408 — deeds producible only under covenant, ;7'. — 
 L;i-ants from Crown, ih. — instruments on record, i?*,— examination of 
 deeds before peinisal of title, ih. — eS'ect of, 409.
 
 CONTENTS. XV 
 
 2. Production of deeds, who may compel, p. 409. 
 Owner of undivided share, 409 — of estate held under common title, ih. — 
 right of legal tenant for life, 410 — remainderman, ih. — unpaid mortgagee, 
 whether bound to produce, 411 et scq. — lien of solicitor on, 412 — liability 
 of mortgagee for their loss or destruction, 413 — Court EoUs, 414 — statu- 
 tory right to production, ih. 
 
 3. JVon-prodAiction of deeds, hoio far i^ni^ortant, p. 414. 
 It may be notice of their deposit, 414. 
 
 4. Examination of deeds — matters to he ohservedj in, p. 415. 
 
 CHAPTER X. 
 
 AS TO 3IATTERS ARISING BETWEEN DELIVERY OP ABSTRACT AND 
 PREPARATION OF CONVEYANCE. 
 
 1. Time, lolien essential at Lato and in Equity, p. 417. 
 Is essential at Law, 417 — not in Equity, unless by agreement, or under 
 special circumstances, 418 — as where vendor inciirs liability by keeping 
 the property, ib. — or the property is of fluctuating value, 419 — or of a 
 determinable or wasting character, ih.— or is immediately required by 
 the purchaser, ib. — tendency of modern decisions, 420— undertaking to 
 deliver possession, 421— effect of wilful delay, ib.— of protest Avithout 
 active pressure, ib.— less time now allow^ed, 422 — title at hearino-, when 
 sufficient, it.— time may be limited by notice, i6.— contract cannot be 
 
 determined without notice, ib. — what is a suflBcient notice, 423 et seq. 
 
 time, when held to remain optional, 424 — may be enlarged or waived 
 ib. et seq.— how not enlarged atXaw, 425— efibct of conditional waiver, ib. 
 —time for delivery of abstract, how "waived in Equity, ib.—cil'eci of pro- 
 test, 426—" month," 427. 
 
 2. Objections to title ;— negotiations vimi and waiver of ;—v:lien possession 
 
 taken amounts to waiver, p. 427. 
 Effect of negotiations, 427— frivolous objections, «&c., 428— withholding 
 objections, &c., 429— costs, t6.— as to requiring concurrence of other 
 parties, ^■6.— purchaser's ^mmd fade right to good title, 430— may be 
 waived, zZ).— counsel's opinion when not binding, zi.— qualified acceptance 
 of title, i?*.- waiver when implied, 431 et se(2.~preparation and approval 
 of conveyance whether a waiver, 432— conditional waiver, zi.— attempt 
 to resell, iV;.— taking of possession by purchaser, 433 et 5e<2.— long reten- 
 tion of possession, 435— undertaking to perfect title, ib. 
 
 3. As to the general rights and liabilities of a purchaser in iwssession , p. 43G. 
 Acts of ownership, whether a waiver, 436— waiver of title, but not of com- 
 pensation, 437— moditied waiver, 438— purchaser ejected without com-
 
 xvi CONTENTS. 
 
 peusalion fur expenditure, i6.— allowance iu Equity, ib.— for repairs aud 
 improvemeuts, 430— use and occupation, ih. — alteration of premises, 440 
 — lien on estate, ib. 
 
 4. Vendor in possession, hy altering projierdj, avoids the contract, p. 441. 
 
 Material alteration of property by, may avoid contract, 441 — e.^.,fall ot 
 ornamental timbei', ib. — alterations on estate or failure of consideration, ib. 
 
 5. As to entry and imssession hy railway companies before completion, p. 442. 
 
 Provisions of Lands Clauses Consolidation Act, 1845, 442 — deposit aud 
 bond, ih. — application of deposit, 443 — what is entry, 444 — where land 
 claimed under an adverse title, 445 — unlawful entry, ib. — possession 
 refused, ih. — within what period compulsory jiowers may be exercised, 
 446 — no ejectment after lawful entry, ib. — lien on railway for impaid 
 purchase-money, 447— notice, 448. 
 
 CHAPTER XI. 
 
 AS TO SEARCHES FOR, AND INQUIRIES RESPECTING INCUMBRANCES. 
 
 1. IVhat inrfHiries should be mack of vendo/s solicitors, and of supposed 
 incumbrances, trustees, and tenants, p. 449. 
 
 Inquiry to be made of vendor's solicitors, 449 — and supposed incum- 
 brancers, ib. — whether the incumbrancer need communicate his claim to 
 intending purchaser, 450 — inquiry to be made of trustees, 451 — liability 
 of trustee for wrong information, ib. — inquiry to be made of tenants, ib. 
 — reference to occupancy, etfect of, 452 — as to undisclosed easements and 
 restrictive covenants, 453— as to title deeds, ib. — physical fact may be 
 notice of a charge, &c., ih. 
 
 2. ]yhat searches sJi07dd be made for incumhrances — laio respecting 
 judgments, d-c, p. 454. 
 
 Liability of solicitor, 454 — usual searches, ib., 455 — drainage loans, ib. — 
 general law respecting judgments, 456, c< scq. — ^judgments under old law 
 Avhat they affected, 457 — what they did not atfect, 458 — docketing neces- 
 sary as against purchasers, ib. — purchaser without notice protected l)y 
 legal estate, 461 — effect of judgment after contract, ib. — extended legal 
 operationof judgments under 1 & 2 Vict. c. 110, 462 — extended equitable 
 operation, 463 — what are judgments within the Act, 465 et sec/. — Rttsecll, 
 V. M'Culloch, 470 — 18 & 19 Vict. c. 15, 471 ct ser/. — judgment a charge on 
 unpaid purchase-money, &c., 472 — not a sale for value under 27 Eliz. 
 c. 4, 473 — nor on an ecclesiastical benefice, ih. — nor on railway plant, ih. 
 — creditor's extended rights at Law and in Equity, ih. et sec/. — effect of
 
 CONTENTS. X^al 
 
 registration, 474 — oqaltable remedy, whether ale or foreclosure, 475 — 
 — summary orJei- for sale under 27 & 28 Vict. c. 112, ib. — construction 
 of tliis Act, 47G ct S2^.~ cases under it, 477, 478 — when a sale will be 
 ordered under the Act, 479 — priorities of judgment creditors, 480 — • 
 remedies under the new law depend on registration, 483 — under the 
 23 & 24 Vict. c. 38, 484 — neglect to re-register, its effect, 485 — purchase 
 with notice of unregistered judgment, how far liable, 487 et seq. — local 
 registers, whether affected, 488 — satisf\iction of judgments, how entered 
 up, 489 — judgments obtained in one part of the kingdom enforceable iu 
 other parts, 489 — what searches should now be made, 490 — and in whose 
 names, 491 — general remarks on the present state of the law, ib. et siq. 
 — Crown debts and accountantships, 493 — registration and re-registra- 
 tion of, 494 — satisfaction of, how entered uj), 495 — Hi lindens, ib. — what 
 is a, 496 — Court Eolls and local registers, 497 — bankruptcy and insol- 
 vency courts, 498 — annuities, ih. — recovery deoils and acknowledgments 
 by married women, 499 — land di*ainage loans, ih. 
 
 3. Time for making searches and inquiries, p. 499. 
 Searches, &c., time for, 499 — unnecessary, costs of, not allowed, ib. 
 
 CHAPTER XII. 
 
 AS TO THE TRErARATION OF THE COXVEYANCE. 
 
 1. General matters relating to, and the form of, p. 500. 
 
 Turchaser prepares conveyance, 500 — equitable interest, 501 — pivparation 
 of, no acceptance of title, ib. — as to separate conveyance of outstanding 
 interests, ih. et se^.— disentailing deeds, 504 — statutory conveyances, ib. 
 — incumbrances, 505 — distinct estates, &c. — 506 — Act for ]\Ierger of 
 satisfied terms, ib. — how fer a satisfied terra protects a purchaser, 507 — 
 JJoe V. Jones, and Cottrell v. Hughes, ib. 508— surrender of copyholds, 509, 
 
 2. As to the parties, p. 510. 
 
 Who must be, 510— in case of sub-sale, 511— unnecessary parties, ib.—sale 
 by mortgagee, 512 — by mortgagor, ib. — bankrupt, when a party, 513 — 
 dowress, ib. — assignment of term, whether a sufficient bar of dower, 514 — 
 ointure, ib. — dower may be a subject for compensation, 515 — concurrence 
 of dower trustee in conveyance, wdiether it can be required, i6.— Dower 
 Act, what it does and does not extend to, 516— whether husband should 
 concur in conveyance by wife of her separate estate, ib. — or where wife is 
 a bare trustee, 517— as to the arrangement and description of the parties 
 il), — admittance of one trustee on purchase of copyholds, 518. 
 
 VOL. I. '
 
 xviii roxTENTS. 
 
 3. .Is to the recHal^, p. 518. 
 
 Object of, 518 — in (lisontailiiig assurances, {6. — in a release of claims, 519 
 — coiuniencement and frame of, 520 etseq. — their effect on operative part 
 of deed, 522 — of vendor's title, 523 — of written agreement, 524 — of ol> 
 jections, in deed of confirmation, ih. 
 
 4. As to the consideration, wonh of conveyance, ami ixvrcels, p. 525. 
 
 Consideration to be truly stated, 525 — fixtures, timber, kc, lb. — cliattels 
 passing by delivery, ib. — recital of sale, ib. — apportionment of considera- 
 tion, 52G — on sale to sub-purchaser, ib. — on sale by retiring to con- 
 tinning partner, 527 — on sale of goodwill, iJ>. — stock or annuity conside- 
 ration, ib. — compensation, on sale to railway company, 528 — operative 
 words, ib. — on sale by a corporation, ib. — on sale of land in colonies, ib. — 
 words of conveyance by trustees, 529 — parcels, how to be described, 530 
 — reference to a plan, ib. — reference to occupancy, 531 — "falsa demon- 
 stratio non nocet," 532 — mines, &c., 533 — reversions, ib. — general words, 
 534 — fixtures, 535 — easements, 537 — when grant or reservation implied, 
 ib. — continuous and discontinuous, distinction between, 539 — new ease- 
 ments, how created, 541 — deeds, ib. — reversion and estate clause, ib. — 
 estate clause, 542 — dower uses, ib. 
 
 5. As to tltc covenants, p. 543. 
 
 Covenants for title, 543 — solicitor's liability respecting, ib. — by beneficial 
 owner, 544 — on sale by Court or trustees, 545 — on sale to railway com- 
 pany, 547 — covenants by tenants for life, ib. — by husband and wife, 548 — 
 vendor of leaseholds, 549 — by vendors of partial interest, 550 — by fidu- 
 ciary vendors, ib. — incumbrancer releasing, 552 — Crown, ^6.— pai'ties 
 interested in purchase-money, ib. — against known defect, 553 — for 
 indemnity, ib. — for production of deeds, 554 — on sale by fiduciary ven- 
 dors, 555 — whether covenantor must have the legal estate, 556 — with 
 whom vendor should covenant, ih. — purchaser's covenants with vendor, 
 in special cases, 557 ct seq. — purchaser not executing, yet bound in 
 Equity by covenants, 562 — "give" or ''grant" implies no covenant, 
 ib. — "demise'' implies a covenant for title, 563 — covenants implied 
 when, ib, 
 
 C. .I-s to draft and engrossment, p. 564. 
 
 Alterations in draft should be communicated, 564 — engrossment, 565 — 
 belongs to purchaser, ii>— executed, and then contract rescinded, 566 — 
 what is good delivery of a deed, 566— note as to the present law of 
 fixtures, ib.
 
 CONTEXTS. XIX 
 
 VOLTME II, 
 
 CHAPTER XIII. 
 
 AS TO MATTERS RELATING TO THE COMPLETION OF THE PURCHASE, 
 
 1, Tlie execution of the convej/ancc hj married women, &c. ; conveyance of 
 trust estates under the Trustee Acts, p. 569 et seq. 
 
 Voudor mu.st convey in person, 569 — assurances by married women, 570 
 et seq. — general doctrine of the separate estate, 571 — acknowledgement 
 liow taken, and genei'al ruk\s respecting', 572 et seq. — assurances of a 
 married woman's copyholds, 576 — her reversionary interests and terms 
 of j'ears, [577 — concurrence of husband when dispensed with, 578 — 
 Malins' Act, 5S0 — assurances by executors, ib. — by promoters of public 
 undertakings to themselves, 581 — by trustees, ib. — by mortgagees, 582 — 
 assignees, 583— vesting orders under Trustee Acts, 583 et seq. — escheat, 
 588 — stamps on vesting orders, 588 — power of legal personal representa- 
 tives to convey under V. & P. Act, 1874, 591. 
 
 2. As to the dischanje of incumbrances, p, 591. 
 
 Vendor liable for, until conveyance executed, 591, 592 — must be paid off or 
 released, 592— succession duty, i6.— equity of redemption, 594— quietus, 
 ■ib. —Lands Clauses Consolidation Act, 1845, 595. 
 
 3. As (0 the ini.rchaser's Uahilitij to see to the application of trust inirchase- 
 
 money, p. 595, 
 
 Statutory powers of giving receipts, 595— Lord St. Leonai'ds' Act, ib.— 
 Lord Cranworth's Act, z7).— purchaser's liability in ordinary cases tested 
 by intention of author of trust, sevibk, 596— as expressed or implied, ib. 
 el 56'^.— subsequent events immaterial, 599, et sc'if.— power to give receipts 
 wlien implied, GOO— cases of sale, itself being a breach of trust, 602— and 
 of purchaser having notice that the sale is imauthorised, 603— voluntary 
 conveyance to beneficial devisee, ib.—sah to provide for deficiency in 
 personal estate, G04— rota of sale, ;'6,— purchase-money is payable to 
 executor., 605— siu-viving trustees, {&.— continuing trustee where no new 
 trustee appointed, z6.— trustee irregularly appointed, 606— when .sur- 
 viving trustee can transfer the trust, i6.— all trustees should join in the 
 receipt, 607 — trustees appointed by Court, 609 — 7 & 8 Vict. c. 76, ib. — 
 power to lend on mortgage implies power to give receipts, ib. — so also a 
 power to vary secnrities, semble, 610— power of trustees in cases of breach 
 of trust, 610, et sfr/.— whether as mortgagees they can release without 
 receiving purchase-money, 612— Trustees Relief Act, 613— application of 
 purchase-money in payment of charges, ib. — gift of residue, 614— cliarge 
 of debts who .should .sell, 614 et seq.— 22 & 23 Vict. c. 35, 615-charge of 
 
 b 2
 
 XX CONTENTS. 
 
 debt?, how created, GIG— executors can sell, wlieu, ih. — devisees in trust 
 Bell when, G18 — whether beneficial devisee subject to charge can sell, 618 
 —statutes making real estates assets not equivalent to charge of debts, 
 621 — purchase from heir or devisee, 623 — receipt under power of 
 attorney, ib. — under Lands Clauses Cousolidatiou Act, on sale of super- 
 fluous lauds, ib. 
 
 4. Amoiinl irdijaMc in respect of imrchasz-moncjj, how increased or 
 diminished, p. 624. 
 
 Purchase-money fixed by arbitration, 62 i — under Lands Clauses Consoli- 
 dation Act, 625 — increased by interest, rate of, 627— when payable iu 
 cases of delay, 627 et seq. — on valuation of timber or fixtures, 631 et seq. 
 — ^^vhat is a sufficient appropriation of the purchase-money to relieve the 
 purchaser from payment of interest, 634 — express agreement to pay 
 interest, 636 et seq. — De Visme v. Be Visme, 638 — how the ordinary con- 
 dition is construed, 639 et seq. — acquiescence, 643 — deposit, 644 — 
 purchase-money, whether increased for excess in quantity, ib. — or 
 variations in quality, 648 — purchase-money, bow diminished, ib. — by 
 proceeds of estate received, &c., by vendor, 649 — deteriorations, ib. — 
 abatement in respect of original defects, 651 — for deficiency in quantity, 
 651 et seq. — efi"ect of expressions "more or less," or "thereabouts," &c., 
 652 — Cordiwjiejj v. Checseborough, 653 — Difference in quality, 654 — 
 interest on abatement, 655 — loss or gain on investment of purchase- 
 money, ib. 
 
 5, As to execution by the parties, p. 655. 
 
 6. To whom, and Jtow, jnirchase-moiieu should he paid, p. 65G, 
 
 Not to agent or solicitor as such, 656 — to whom, ib. et seq. — in case of 
 trustees, ih. — agents, 658 — joint vendors, 660— where sale is made under 
 power of attorney, 661 — on sale in bankruptcy, ib. — lien of third party, 
 ib. — Trustees Eelief Act, ib. — sale to railway companies, &c., 662 et seq. 
 — application of deposited monies under the 69th section of the Lands 
 Clauses Consolidation Act, 663 et seq. — payment out of Court, 667 — 
 re-investment, 668 et seq. — practice respecting, 670— interest, 673. 
 
 7. As to purchascr''s right to deeds, attested copies, d;c., p. 673. 
 
 Purchaser's right to deeds, &c., 673 — on purchase of only part of estate 
 674 — vendor not entitled to retain deeds becaxise he is under a covenant 
 to produce them, ib. — where the sale is under a trust for sale in a settle- 
 ment, 675 — liability of mortgagee settling several mortgages by a single 
 deed, ih. — negative evidences, 676 — attested copies, ib. — covenant for 
 prod\iction, 677 — absence of documents should be explained, C78,
 
 CONTENTS. XXI 
 
 8. Matters necessary fo ensure the full effect of the executed conveyance ; — 
 registration, enrolment, dec., p. 678. 
 
 Local registratiou, 678— extends to memorandum of equitable cliarge, 679 
 — what interests are excepted from the Acts, 680 ct seq. — local registries 
 su2)erseded, -where the laud is registered under the Land Eegistry Act, 
 681— effect of not registering will within prescribed period, 682 — 
 37 & 38 Vict. c. 78, s. 8, 683— title marketable if heir concur, ib. — 
 memorial, its contents, 684 — attestation, &c., it). — Bedford Level Act, 
 685— Mortmain Act, ib. — registration of Indian assurances, 686 — enrol- 
 ment of assurances omitted to be enrolled, ib. — on sale of land already 
 in mortmain to a charity, 687 — Eeligious Buildiugs Site Act, 1868, it). — 
 lands within the Duchy of Coi'nwall, ib. — disentailing deeds, ib. ct seq. — 
 conseut of protector, 688 — cei^tificate of acknowledgment by married 
 women, 690 — entry on Court Eollsof coiiyhold assurances, 691 — indorsed 
 notice of conveyance, when expedient, 692 — notice to trustees, 693 — to 
 mortgagee on purchase of equity of redemption, ib. — admittance to 
 cojiyholds, ih. 
 
 9. As to stamps, p. 694. 
 
 Beed unstamped uot evidence, 694 — may be stamj^ed after execution, ib. — ■ 
 17 & 18 Vict. c. 125 and 33 & 34 Vict. c. 97, ib.—ad valorem duty pay- 
 able, 693 — on what consideration, 696 et serf — assurances to friendly 
 societies, 699 — building leases, 700 — scale of duties under 33 & 34 Vict. 
 c. 97, 701 — commissioners may determine proper amount, ib. — certain 
 conveyances exempted from increased duty, ib. — vesting orders, 702 — 
 apportionment of consideration, 702 — duty on sub-sale, ib. — none on deed 
 of confirmation, 703 — on collateral deeds, ib. — and duplicate, ib. — copies 
 of Court Roll, ib. — several owners, 704 — deed with double operation, ib, 
 —matters not involving additional dutj^, 706 — deed stamp unnecessary, 
 although ad valorem duty less than deed stamp, 706 — appropriate stamps 
 to be used, ib. — presumption as to stamps, ib. — alteration of instrument, 
 707 — land abroad, ib. 
 
 10. As to costs, p. 707. 
 
 Of conveyance, purchaser pays, 707 — of execution, vendor ]->ays, ib.^ 
 getting in legal estate, 708 — copyholds, 709 — lease, 711 — conveyance, iu 
 consideration of rent-charge, ib. — sale under Lands Clauses Consolida- 
 tion Act, ib. — re-invc'sting purchase-money, &c., 712 et seq. — Avhat is 
 a "wilful refusal" to convey under the 80th section, 717 — what is 
 " adverse litigation," ib. — how costs are ai:)portioned where there are 
 several companies, 720— costs of arbitration under Lands Clauses Con- 
 solidation Act, 721 — additional expenses if estate is encumbered, &c., ib, 
 —trustee, solicitor, 722 — taxation under 6 & 7 Vict. c. 73, 723 et seq.^ 
 under general jurisdiction, 727 — under 8 & 9 Vict. c. 119, 727 — Attorneys' 
 and Solicitors' Act, 1870, 728.
 
 XX ii C0NTE2sTS. 
 
 CHAPTER XIV. 
 
 AS TO THE EFFECT OF THE COXVEYANOE ON THE llELATIVE IIIGIITS OF 
 VEXDOR AND PUECHASER. 
 
 1. Fc«(?cj-'s lien on estate for unpaid 2mrchase-mone>/, i^, 729. 
 
 feiidor's lieu, 729 — general nature of, and incidents to, 730 et seq. — is not 
 .in express trust witliin 3 & 4 Will. 4, c. 27, 732 — nor within Locke 
 King's Act, ih. — but is witLin the Amendment Act, ib. — is assignable by 
 parol, ih. — marshalling for, 733 — how lost or waived, ib. et scq. — may 
 subsist as to only part of unpaid money, 738 — presumable intention 
 either way may be rebutted, ib. — lien, how lost as against third parties, ih. 
 — none implied in favour of disqualified parties, 739 — nature of, ib. — its 
 effect when ])urchase-money remains on mortgage, 740 — miscalculated 
 interest, ib. — illegal contract, 741 — sale to a railway company, ib. 
 
 2. Whdhei' the vendor has any remcchj if estate has been sold at an unckr- 
 value, or more has been conveyed than loas intended, p. 742. 
 
 Not for mistake as to extent or value of property, 742 — or extent of his 
 interest, 743 — alitcr, if property not intended to be dealt with is con- 
 veyed, 744 — or if in fixing price he rely on purchaser's information, 746 — 
 or if being ignorant or distressed he sell at undervalue, ib. — general rule 
 as to distress, 747 — inadequacj^ of consideration, ib. — mutual ignorance, 
 748 — uncertain amount of purchase-money, ib. — want of professional 
 advice, ib. — what relief formerly given on sales of reversionary interests, 
 749 et seq. — what interests were reversionary within the rule, 750 — Kinc/ 
 V. Hamlet, 752 — family arrangements not within the rule, ib. — adequacy 
 of consideration, how determined, 754 — sale fraudulent as against tenant 
 in tail, set aside at suit of remainder-man, 756 — terms of relief, 757 — 
 acquiescence and confirmation, 759 — coaiveyance, when reformed in 
 Equity, ib. — preservation of estate pendente lite, 760 — illegal, motive for 
 Ijurchase, ib. — powers of Divorce Court to rectify marriage settle- 
 ments, ib. 
 
 3. Vcndor^s rhjhts of pre-eriipiioii tender Lands Chaises Consolidation 
 Act, 1845, p. 761. 
 
 rrovii^ions of Act in respect of superfluous lands, 761. 
 
 4. Vendoi's remedies at Law and in Equity on purchaser s covenants, p. 764. 
 
 Purchaser's covenants clat^sified, 764^-Avhether first class run with the 
 land, ib. — second class do not, scrnblc, but in Equity bind alienee with 
 
 notice, 766 ct S'. q.^— hi Mind casco, 767'^even though invalid at Law, ib.—"
 
 CONTENTS. XX ill 
 
 and constr.jTctivo notice is sufficient, 769— damages may now be awarded 
 ia E(iuity, 770 — when sucli relief will be refused, 771 — tliird class, 
 remedies on, 775 — covenantor liable on covenants in gross, 77J — assignee 
 not liable on collateral covenant, ih. — effect of bankruptcy, 776 — under 
 the recent Act; ih, — not afTected by alienation, 777. 
 
 5. Purchasers remedies on vendor'' s covenanls, p. 777. 
 
 Are in general his only remedies for defects after conveyance, 777 — cove- 
 nants for title, 778 — who are liable on, ib. — benefit of, runs with land 
 when, ib. et seq. — will run with incor])oreal hereditaments, 780— cove- 
 nants in conveyance of equitable estate, ih. — breach of covenants for 
 title, 781 — Statute of Limitations, ih. — ordinary covenants for title, 
 how broken, ih. et seg-.— effect of qualifying expressions, 782 — how 
 usually restricted, 788 ct seq. — who may sue for breach, 791— damages, 
 ih. et seq. — whether the value of improvements can be recovered, 793 — 
 bankruptcy and certificate, 794— release by mortgagee, 79o— action 
 against devisee, 796 — damages when claimable as debt in administration 
 suit, ih. — not apportioned, 797 — covenants relieved against in Equity, 
 ib. — vendor's covenants other than for title, 798 — execution of deed by 
 plaintiff unnecessary, ih. 
 
 6. Purchaser's rcraedij in Equity under special circumslances, if title prove 
 
 defective, p. 798. 
 
 Purchaser with defective title, when relieved in Equity, 798— A\ilful mis- 
 representation, 799 — fraudulent concealment, ib. — fraud of agent, 800 — 
 terms of relief, 802— allowed to follow purchase-money, 803— bill for 
 compensation not sustainable, 804 — action on the case, ib. 
 
 7. As to 2'^urchaser^s rhjld to juiij off incumhranccs out of unpaid purchase' 
 
 money., p. 804. 
 
 Purchaser's right of retainer, 804 — case of double agency, 805— purchaser 
 buying up inciunbrances, 806. 
 
 8. Purchaser's reined^ in Eqiuty if /tj hiy his own estate, or if lands arc 
 
 omitted from conveyance, and as to further assurance in Equity, and bj 
 Statute, p. 806. 
 
 Purchaser buying his own estate, relieved, So6 — whether so if he Imy 
 estate Avliich has no existence, ib. — or which tlic vendor knows to be 
 utterly worthless, ib. — lauds shown to him, or accidentally omitted, 807 
 — subsequently accjuircd interests, 808— farther evidence, 810 — estoppel, 
 ib. — voidable estate, how confirmed by tenant in tail, 811— iudtMuuity, 
 ib. — fire policies, 812.
 
 XXIV CONTENTS. 
 
 9. As to the general rights and liahiliiies of purchaser under 
 conveyance, p. 812. 
 
 ravcli.'isei-'s riglit to rent, 813 — to sue for breach of covenant, 814 — re- 
 entry, ih. — purchase by lessee, 815— use and occupation, 816 — purchaser's 
 will, i6.— purchase of equity of redemption, ih. — general provisions of 
 Locke King's Act, 817 et scrj.— the Amendment Act of 1867, 820— 
 equitable estates, 821— conditional conveyance and mortgage dis- 
 tinguished, ih. — damage by prior act of vendor, 822. 
 
 CHAPTER XV. 
 
 As TO THE EFFECT OF THE CONVEYANCE ON THE .VDVERSE RIGHTS 
 OF THIRD PARTIES. 
 
 1. Purcliaser vnthout notice, ^rrotected hy legal estate against prior 
 claimants, p. 823. 
 
 If equities equal, legal estate prevails, 823 — purchaser buying without 
 notice, protected by legal estate, when, 823 etlseq. — legal estate from 
 trustee, with notice, 825 — from unsatisfled incumbrancer, 828 — general 
 remarks on the doctrine and cases, 823 — best right to call for, 831 — 
 Equity will not, in general, act against bond fide piirchaser without 
 notice, 832 — Phillips v. Phillips, 833 — purchaser whether compelled to 
 produce title-deeds, 834 — Ilcath v. Crealoch, 835 — V. & P. Act, 1874, s. 7, 
 836. 
 
 2. Purchaser vjilh mere equitable title is p>ostponcd to ^yrior equitable 
 claimants, p. 837. 
 
 Between mere equitable claimants prior title prevails, 837 — mortgagees by 
 deposit bound by secret trust, ih. — no priority by notice to owner of 
 legal estate, 839 — concealed incumbrance thrown wholly on puisne 
 equitable purchaser, ib. — charities, ih, 
 
 3. Purchaser, hoiv far protected against defective execution of powers ; against 
 prior claimants who have encouraged him to purcliase ; and by Statute 
 in various cases, p. 840. 
 
 Eelief against defective execution of powers, 840 — 22 & 23 Vict. c. 35, 
 ib. — encouraging purchase, 841 ct seq.^-whei'e there has been a subse- 
 quent expenditure on the projierty, 842 — reversioners, whether bound, 
 843 — omission to take deeds, 844 — protection against vendor's assignees 
 in Bankruptcy and Insolvency, 845 ct 6-c^i^.-— under the recent Act, 847 — 
 judgment creditors, 850— defects in fiuys or recoveries, 851 — and in 
 other cases, ih., 852.
 
 CONTENTS. XXV 
 
 4. As to priority under Registration Ads, p. 852. 
 
 Protection against unregistered deeds, 852 — prior registration conclusive 
 jit Law, but not in Equity, 853 — priorities of registered instruments, 
 inter se, 854— purchaser's title, how impeachable under the Acts, 855 — 
 priorities under Fines and Eecoveries Abolition Act, 857. 
 
 5. As to notice ;— solicit it is, lioio it may be proved, and its effect; of void 
 or voidable estates, and voluntary or fraudulent conveyances ; equitable 
 relief arjainst imrchaser, vnth notice, 857. 
 
 Notice of unregistered assurance or judgment must be actual, 857 — notice 
 to trustees, ib. — to solicitor, is notice to client, 858 — when, by whom and 
 how, to be given, ib. et seq. — of doubtful instrument, 860 — constructive 
 notice, 861 et seq. — negligence, 863 — notice of fact, leading to other 
 facts, &c., 864 — notice of facts which ought to have been known, 868 — 
 eases where purchaser is not affected with notice, 871 et seq. — lis fendem, 
 872 et seq. — past tenancy, 873 — lease, 874 — absence of title-deeds, 875 — 
 recitals, 876 — general notice of a document, when insufficient, ib. — • 
 excessive caution, 877 — notice to counsel, &c., is notice, 878 — privileged 
 communications, 881 — what are, and what are not, within the rule, ib. 
 — to whom, and to what documents, the privilege extends, 882, 883 — 
 effect of notice, 884 — of void or voidable estates, agreements, &c., ib. ct 
 seq. — of fraudulent or voluntary conveyances, &c., immaterial, 889 — 27 
 Eliz. c. 4, ib. — who are purchasers within the statute, ib. — what convey- 
 ances are fraudulent within the statute, ib. ct seq. — limitations in a 
 marriage' settlement in favour of collaterals may be supported, when, 
 894 et seq. — bond fide settlement by indebted settlor, 900 — settlements, 
 with power of revocation, fraudulent, 903 — vendor's want of notice 
 protects purchaser, 904— settlements to defraud creditors, void under 13 
 Eliz. c. 5, 905' — tests of validity, 906 — who may impeach, 908 — 
 voluntary settlements by traders voidable under the recent Bankruptcy 
 Act, 910 — on what terms purchaser evicted, 911 — if estate belong to 
 infant, 912— Statute of Limitation begins to rim on conveyance by 
 trustees, 913. 
 
 6. As to contribution to immmount charges, p. 913. 
 
 7. As to rights of third 2>arties, after conveyance in various cases, p. 916. 
 
 Provision in Lands Clauses Consolidation Act, 1845, for purchase of 
 omitted interests, 916, 917 — incumbrancer has no claim against vendor 
 for purchase-money, when, 917 — conveyance of ecpiity of redemjjtion to 
 mortgagee, ib. — mortgagor buying from mortgagee may not defeat 
 mesne incumbrancers, 919 — mortgagee selling after foreclosure cannot 
 revert to collateral securities., ib. — purchaser from mortgagee bound by
 
 XXVI CONTENTS. 
 
 agreemeut with inoi'tga;,'or for redomptiou. ib. — couveyauce deteniiiues 
 p.arol liceucc, 920 — purchaser of part of rent-clicU'ge may distrain, ib. — 
 purcliaser, wlicu liaWc fur nuisance, ib. — liability of leaseholder after 
 sale, 921. 
 
 CHAPTER XVI. 
 
 AS TO THE EICillTS, UMDEU THE CONVEYANCE, OF JOINT PURCIIASEKS, 
 AND PERSONS OTHER THAN THE NOMINAL PURCHASERS. 
 
 1. As to joint pv.ixhasers, p. 923. 
 
 Purchasers joint tenants at Law, when so in Eiuity, 923 et scq. — ^joint 
 tenant's lien for expenditure, 925 — liability of tenant in common to 
 account, 926 — advantage : secured by partner enures to benefit of co- 
 partners, 927 — partner in speculation must conform to agreement, ib. — 
 laud bought to resell, ib. — where the itartnershi]:) trade is merely 
 ancillary to the land, 928 — land of surviving partner when re-converted 
 into realty, (Vj. — trust for co-purchasers, how i)roved against nominal 
 purchasers, ib. — declaration of trust, by whom to be signed, 929. 
 
 2. As to purcliascs ia the name of a nomidul purchaser, p. 930. 
 
 If third persons jjay the consideration, a trust results, 930 — payment prove- 
 able by parol, 931 — conveyance may be shown to be a mortgage, 932 — 
 2Jrimd facie, no trust results on jjurchase in name of wife or child, ib. — 
 presumption of advancement may be rebutted, 933 et seq. — by what con- 
 teni] joraueous acts or circumstances, 934 — prior advancement, whether ma- 
 terial, 935 — by what subsequent acts or circumstances, 936 — election, li. — 
 investment of money as part of settlement fund, 937 — purchases in name 
 of child or wife not within the 27tli or 13th Eliz., semblc, ib. — whether 
 valid in case of bankruptc}^, 938 — resulting trust may Ijc rebutted, 939 
 — purchase with trust money, ^&.— purchase with wife's sepai'ate estate, 
 940 — purchase, when taken to be in performance of liability to settle, 
 941 — who are bound by the eipiity, 942— expenditure on settled land, 
 943 — cuvenauL to settle, who may enforce, ib. 
 
 CHAPTER XVII. 
 
 REMEDIES AT LAW FOR BREACH OF CONTRACT. 
 
 1. I'i(rcliftscr''s ronaUes against vendor, p. 044. 
 Vendor in default, jnirchaser's right of action, 945 — agents may sue and 
 be sued, when, ^6.— their powers and liabilities, 94G— auctioucci may bo
 
 CONTENTS. XXVll 
 
 sued lor deposit, 94S— what recoverable, 949 d sj<j(.— what not recover- 
 able, 950— Bain v. Fothergill, 954, 955 -death of purchaser, personal 
 representatives may sue, 957— deiith of vendor, liability of liis represen- 
 tatives, lb. 
 
 2. Vendor's remedies at Law agaiast ^niA'cliaser., p. 957. 
 
 Eight of action in vendor or his representatives against purchaser and his 
 
 representatives, 957— what recoverable, ib.—w^Q and occupation, 95S. 
 
 3. Plaidt(ff,lioxD far hound to perform his imrt of the agreement before 
 action, p. 958. 
 Performance of contract on part of plaintiff, how far necessary to support 
 action, 959— mutual a-reements, when dependent, i6.— refusal to convey, 
 yet s>ecuvity for purchase-money enforced, 961— deposit, 962. 
 
 4. As to the agreement, how affected by imrol evidence, 962. 
 Part performance, doctrine of, not recognised at Law, 9G2— parol evidence 
 inadmissible to vary contract, ih. —how far admissible to explain, 963— 
 in case of collateral agreement, 966— subsequent acts immaterial, ib. 
 
 5, Prodicction of agreement, xvhen corni)elled, p. 9G7. 
 G. Grounds of defence at Law, the agreement being admitied,\x 969. 
 Original invalidity of contract, 969— or subsequent waiver, 970— or releaso, 
 971— or satisfaction, i6.— or Statute of Limitations, ib.—ov the principle 
 le.c )ion cogit ad inipossihilia, ib. 
 
 7. Action u'hcn formerly restrained in Equitj/, p. 972. 
 liijuaclion, when dissolved, 973— effect of Judicature Act, 1873. 
 
 8. General matters relating to the action, p. 973. 
 Particulars of claim, 973— time is at Law essential, 974— rule varied by 
 Judicature Act, 1S73, 974— equitable objections to title, a defence, 975 
 —equitable defences under Common Law Procedure Act, 1854, 97G— 
 under Judicature Act, 1873, 977. 
 
 9. Itemed ij h>/ Jfandamus against RaihvciU Companies, tC'C, p. 977. 
 When granted, 977 ct ser^.— action of mandamuS; 980. 
 
 CHAPTER XVIII. 
 
 AS TO SPECIF IC rEKFOR-AlANCE. 
 1. Matters relating to the jurisdiction, p. 9S1. 
 Specific performance, tlic primary remedy in Equity, 982— Ijut damages 
 may now be awarded under Lord Cairns' Act, //'.— how assessed, 981—
 
 XXVlll CO^^TEXT.S. 
 
 eflect of recent Judicatare Act, 984 — only given -wlien a suit for specific 
 l^erforniance would lie, 984 — principle on which specific performance is 
 decreed, BS5 — jurisdiction not confined to contracts for sale of land, ib. 
 — where the land is out of the jurisdiction, 987— vendor may sue in 
 Equitj'', ih. — building contracts, 988 et seq. — contract for sale of goodwill, 
 991 — contract of partnership, 992 — whether the existence of an easier 
 remedyhy mandamus is a bar to relief in Equity, ib. — plaintiff must elect 
 between Law and Equity, 993 — specific performance, when deci'eed, 
 although contract may vest estate in purchaser, 994 — the relief is purely 
 discretionary, ib. 
 
 2. Bij whom specific performances may he enforced, p. 995. 
 
 At suit of purchaser or his representatives in interest, 995 — or of vendor 
 or his representatives in interest, ib — Commissioners of Woods and 
 Forests, ib. 
 
 3. Against vlwm specific ^performance may he enforced, p. 996. 
 
 Against vendor and parties claiming imder him by subsequent titl6 (exce])t 
 pui'chasers without notice), 99G — or under prior title which he might 
 have displayed by conveyance, 997 — contract for sale by one of several 
 executors, 998 — contract for sale by a vohmtary settlor, ib. — contract for 
 sale of married woman's estate, 999 — of her chattels real, 1001 — whether 
 she may adopt husband's contract, 1002 — vendor's contract not enforced 
 against parties claiming under prior absolute title, ib. — purchaser's con- 
 tract enforced against himself and his representatives, 1003 — against 
 sejjarate estate of married woman, ib. 
 
 4. As to the parties to the suit, p. 1004. 
 
 Va\ ties to contract in general, sole necessary parties to suit, 1004 — purchaser 
 cannot join, as co-defendants, receiver or steward, 1005 — or parties 
 claiming adverse interests prior to the contract, ih. — person interested 
 in contract, and bound to convey, not a necessary party to vendor's suit, 
 ib. — persons having adverse, inconsistent, or no rights,, cannot join vendor 
 as co-plaintiflTs, 1006 — but may be defendants, scmhle, ih. — purchaser of 
 other lot — 1007 — agent or auctioneer, ib. — death of vendor, 1008 — 
 alienation of vendor's interest, 1009 — cestuis que trust, when unneces- 
 sary parties, ib. — death of purchaser, 1010 — alienation of purchasei-'s 
 interest, 1011 — purchaser when not a necessary party to the vendor's 
 suit, ih. — administrator ad litem when appointed by the Court, ib. 
 
 5. As to the hill or statement of complaint, p. 1012. 
 Suit till lately was commenced by bill or plaint, 1012 — effect of Judicature 
 Act on pleadings, ib. — form of bill, ih. — need not allege signature, &c., 
 1013 — reference to letters, i?).— inferences of Law, ib. — waiver of title, 
 if)^ — prayer for general relief, 1014 — plaints in the County Court, 1015.
 
 CONTENTS. Xxix 
 
 6. As to the late mode of proceeding hy claim under the Orders of Airril, 1850, 
 
 aail. «.9 fo Spfcial Cams under the 13 cO 14 VirA. c. 35, p. 1017. 
 
 Ordinary claim, 1017 — special claim, 1018 — practice respecting, ib. — special 
 cases under 13 & U Vict. c. 35, ib. — practice as to, 1019, 
 
 7. As to how the plaintiff's case may be sustained in the absence of a written 
 
 agreement,— fraud, part performance, admission by defendant of parol 
 agreement, 2'arol variation of written agreement, p. 1022. 
 
 Written agreement when dispensed with, 1022 — on the ground of, 1st, 
 fraud, 1023 — 2ud, part performance, what acts of, sufficient, ib. et scq. — 
 or insufiicieut, 1025 — plaintiff how far bound to show precise terms of 
 contract, 1031— separate lots, 1034— sales by auction and in bankruptcy 
 are within the statute, ib. — 3rd, admission of agreement, and statute not 
 insisted on, ib. — purchaser cannot in general enforce specific performance 
 of written contract with parol variation, 1035 — subsequent parol varia- 
 tion, enforceable only if part performed, 1036. 
 
 8. As to grounds of defence negativing plaintifs right to specific jwf or m- 
 
 ance, except with a variation of the original written agreement ; vi:., 
 fraud, mistake, misrepresentation, unfulfdled promise, parol variation, 
 d-c., p. 1037. 
 
 1st, Fraud or mistake, affecting the terms of the agreement, 1037 — 2ndly, 
 fraud, mistake, or surprise, inducing defendant to enter into agreement 
 misapprehending its eftect, ib. — but mere suspicion of fraud insufficient, 
 1039 — and mistake if relied on must be clearly proved, ib. — 3rdly, 
 misrepresentation or unfulfilled promise, inducing defendant to enter 
 into agreement, knowing its terms and effect, 1039, 1040 — 4thly, 
 subsequent parol variation part performed, 1043. 
 
 9. As to grounds of defence negativing in toto plaintiff' s right to specific, 
 
 2nrformance ; viz., personcd incapacity, nature of contract or fraud 
 d'C, &c., attending its execution ; mattei-s relating to the estate, title, or 
 consideration, plaintiff's conduct, cOc., after contrccct ; election of other 
 remedy, p. 1043. 
 
 1st, Personal incapacity to contract on part of defendant, 1043 — intoxica- 
 tion, ih. — personal incapacity on ]iart of plaintiff, how far a defence, 
 1044 — 2nd, matters relating to the contract, &c. : illegality 1045 — inter- 
 ference with rights of a third party, 104G — inability of Court to execute 
 contract, ib. — impolicy, 1047 — breach of trust, ib. — impi'ovident contract 
 by agent, 1048 — agreement for a partnership, ^7*. — hardshii-), 1*^^^ — 
 breach of trust, when a defence or ground of hardship, 1051 — hardship 
 when not available as a defence, 1052 — hardship on members of a cor-
 
 XXX f'ONTEXTf!. 
 
 poratiou, 10o2 — Lanl^liip ■wlicn ascorl.iinel, ih. — fraiul, iiiistiike, surpvipo, 
 misrepi'esentation, or concealment, 1053 et scq. — want of mutuality of 
 remedy, wliether a defence, 1056 et seq. — nominal contractor, lOGO — 
 iusevtion of penalty, 1061 — inability to recover damages at Law, ib. — 
 contract incapable of comjjlete performance, 1062 — 3rd, matters relating 
 to tlie estate ; original defects in, ib. — public nuisance, ih. — public incon- 
 venience, ih. — destruction of estate, 1063 — 4tli, matters relating to tlio 
 title : want of, considered as a vendor's defence, ih. — vendor when bound 
 to convey part of estate with abatement, 1065 — or partial interest witli 
 abatement, 1068 — indemnit}', 1070 — vendor's and purchaser's rights an 
 to abatement, not reciprocal, 1071 — jiurchaser's riglit to, how lost, ib. — 
 vendor how far bound to make good interest contracted for out of his 
 own higher interest, 1072 — want of title, where a defence for purchaser 
 declining abatement, ih. et scq. — several lots, 1074, 1076 — benefit of de- 
 fence, how lost to purchaser, 1377 — defects in title which are not a pur- 
 chasei-'s defence, 1078 et seq. — 5th, matters relating to consideration, 1079 
 — inadequacy of, when a vendor's defence, 1080 — reversionary interests, 
 ih. — sale of unascertained interest, 1081 — whether cpiestion of inade- 
 quacy excluded by uncertainty of consideration, ih. — failure of contin- 
 gent consideration, 1082 — excess of purchase-money, when a purchaser's 
 defence, ib. — future consideration v.?hich cannot be enforced, 1084 — when 
 price fixed by valuation, ib. — 6th, conduct of plaintiff after contract, 
 when a defence, ih. — release, waiver of, or delay to enforce the contract, 
 1085 — what delay in filing bill a defence, ih. — conduct of plaintiff, waste 
 of estate, 1087 — ejectment of purchaser rightfully in possession, ib. — 
 inability of vendor to perform material stipulation under contract, 1088 
 — or act of forfeiture by purchaser in possession, 'z'?*. — election of remedy, 
 action brouglit and damages recovered, 1089. 
 
 10. As to the fvoceedincjs in the suit; — viz.,iKtyment of purchase-moncT/ into 
 Court, reference of title and proceedings thereon, decree for flaintiff, 
 conveyance, chores dismissing hill, p. 1089. 
 
 Purchaser in possession, wdien ordered to pay purchnse-money into Court, 
 1089 — or allowed to elect cither to pay or vacate possession, 1090 — 
 receiver, 1092 — Avhei'e railway comi^any has entered into possession 
 before payment of imrchase-money, ih. — occupation-rent, 1093 — dejiosit, 
 ih. — injunction against waste, ih. — against exercise by vendor of his 
 legal rights, 1094 — on sale of nest presentation, ih. — reference of title 
 befoi-e hearing, 1095 — frivolous defence, 1096 — question of title con- 
 cluded by decree, ih. — no contract, 1097 — objections to title, what are, 
 ih. — order refused on ground of delay, ih. — or waiver of title, ih. — order, 
 subject-matter and form of, 1098 — proceedings on reference, 1099 — pur- 
 chaser need not accept doubtful or merely equitable title, ih. — or con- 
 sent to case being sent to Law, 1100 — Court might determine doubtful
 
 CONTENTS. XXXI 
 
 fiiet.5 wicliout (li reefing issiip, ih. — rofcivnee nivlor the Judieaturo Act, 
 1101 — questious of law more readily decided agniiist purcliaser thau 
 questions of construction, 1102 — as to doubtful titles, 1103 et seq. — cei'ti- 
 ficate when absolute, only openiMl on special grounds, 1100 — certificate 
 in favour of title, ib. — fresh reference, Avhen directed, 1110 — dismissal of 
 bill, 1111 — fresh objections, ib. — certificate against title, ib. — reference 
 back, vv'hen directed, 1112 — removal of- objections at hearing, 1113 — 
 purchaser's general right of reference of title, how waived, ib. — pur- 
 chaser, after great delay, not forced to take clearly bad title, ib. — decree 
 for specific performance, its form, 111-1 — plaintiff may take a decree 
 adopting parol variation proved by defendant's agent, 1115 — may elect 
 to take defective title, ib. — decree for specific performance no bar to 
 adverse claims, 1115 — plaintilf not allowed to take decree against his 
 own contention, lllG — defendant may take decree with parol variations 
 of contract, when, ib. — decree should direct accounts, &c., ib. — abstrac- 
 tion of subject-matter of contract 'pendoite life, 1117 — decree, in vendor's 
 suit, may direct re-sale, &c., ib. — as to conveyance being settled by 
 Judge, Ills — course of proceedings, ib. — conveyance under Statutes, 
 1120 ei se^.— no interest on money refunded on appeal, 1121 — nc cvmf, 
 ib. — attachment, ib. — return of deposit, 1122 — saving of legal remedy, 
 1123 — writ of assistance, ib. 
 
 11. A^ to costs, p. 1123. 
 
 Costs, unsuccessful litigant, generally pays, 1123 — cases where general rule 
 is strictly enforced, 1124 — where enforced with more than ordinary 
 stringency, ib. — when general rule is allowed to operate, 1125 — where 
 it is modified, 1126 et seq. — where the successful litigant has to pay 
 costs, 1129 et seq. — where the defendant submits to the plaintiif's 
 demand, 1133 — whei-e he disclaims, 1134 — where the title is perfected 
 iwnclente lite, 1135 — costs of case sent to Law, 1130 — of action at J^aw, 
 ib. — mortgagee when refused his costs, 1137 — where the suit might have 
 been brought in the ( 'ounty Court, ib. — cases where the title has been 
 held good, bad, or doubtful, on questions of construction, law, or fact, 
 classified, 1137 et seq. 
 
 CHAPTER XIX. 
 
 A« TO REGISTRATION OF TITLE. 
 
 General provisions of Land Eegistry Act, 1142 ct seq. — Declaration oi 
 Title Act, 1862, 1149— causes of failure of Land Registry Act, 1150— 
 report of Commissioners, 1150 — General provisions of Land Transftr 
 Act, 1875, 1151 (iwY^.
 
 JfXxii CONTENTS. 
 
 CHAPTER XX. 
 
 AS TO THE rOWER OP THE COURT TO SELL UNDER RECENT 
 STATUTES. 
 
 1, Leases and Sales of Bcttled Estates Ad, p. 1171. 
 
 General provisions of the Act, 1171 ct seq. — mode of procedure iindcr it., 
 1173 ct seq. — concurrence of parties when dispensed with, 1175 — appli- 
 cation of raouej's under it, 1177 — purchaser requires an iudefeasible 
 title, semhle, 1179 — where parties are under disability, 1180— general 
 I'emarks on the Act, 1182. 
 
 2. Confirmation of Sales Act, p. 1183. 
 
 General provisions of tlie Act, 1183 — Bihchlcy v. Howell, ih. — cases and 
 mode of procedure under the Act, 1184. 
 
 3. Partition Act, 1868, p. 1185. 
 
 General provisions of the Act, 1185 — mode of procedure under, 118C — 
 cases under it, 1187 — costs, 1189. 
 
 CHAPTER XXI. 
 
 AS TO SALES BY TUB COURT OF CHANCERY, OR THE CHANCERY DIVISION 
 OF THE HIGH COURT. 
 
 1. As to time for the conduct of and manner of sale, p. 1190. 
 
 Sale by Court, how made, 1190 — in administration suit, 1191 — before 
 decree, ih. — in foreclosure suit, 1192 — who may bid at, 1195 — who 
 conducts, 1196 ih. — Court executing trust, cannot] anticipate time 
 thereby fixed for sale, ih. — sale may be in town or country, ih. — i-elative 
 duties of vendors and purchasers 'prior to, 1197 — preparation of par- 
 ticulars and abstract, ih. 1198 — reserved bidding, 1199 — deposit, ih. — 
 highest bidding by person incompetent, &c., {6. — bidding after estate 
 bought in, ih. 
 
 2. As to the rights and liahilities of the highest hidcler after the sale, httt 
 hefore the certificate hecomes ahsolute ; and as to the late practice of 
 02:)eninr) hiddings, p. 1200. 
 Highest bidder not the purchaser until certificate of sale is absolute : his 
 rights in the interim, 1200 — prior death of, 1201 — subsale at profit, ih. 
 — opening biddings, ih. — what ad\'ance in price was sufficient, 1202 — 
 several lots, 1203 — course of proceeding, ih. — deposit, ih. — first pur- 
 chaser to be paid interest and costs, 1201 — biddings re-opened on
 
 CONTENTS. XXXlll 
 
 neglect to pay in deposit, ib. — resale, ib. — first purchaser discharged \>y 
 order opening biddings, 1204 — pei'sou opening biddings, if outbiil at 
 resale, prima facie discharged, ib. — when entitled to costs, 1205 — opening 
 biddings in fictitious name, ib. — practice of opening biddings now dis- 
 continued, except in what cases, ib. 
 
 3. As to the certificate of sale becoriiing absolute; and as to the purclmscr''s 
 
 subsequent rights and liabilities, p. 1206. 
 
 IIow certificate becomes absolute, 1200 — purchaser thenceforth entitled to 
 estate, ib. — may apply to pay in his purchase-money, or to discharge 
 incumbrances, 1207— substitution of purchaser, 1208. 
 
 4. As to the investigation of title, payment and application cf purclmse- 
 
 moncy, 2)ossession, and preparation and execution of the conveijancc, 
 p. 1208. 
 
 Abstract, and title, 1208 — reference, 1209 — costs of, 1210 — purchase- 
 money when paid in without accepting title, 1212 — its apjjiicatiou and 
 distribixtion, ib. ct seq. — is legal assets, 1213 — incumbrances, 1214 — 
 deeds should be handed over, 1215 — costs of appearing on petition for 
 distribution, ib. — investment of, ib. — possession, ib. — on purchase of life 
 estate or annuity, 1217 — as to abstract, &c., ib. — conveyance when to be 
 settled by Court, 1218 — executor of lessee entitled to indemnity, 1218 — 
 purchaser laay require concuri'ence of all necessary parties, 1219 — who 
 are sucb, ib. — party refusing may be ordered to convey, ib. — against 
 whom order will be made, 1220 — party refusing may be declai-ed a 
 trustee, 1221. 
 
 5. Furchascr''s rights after coinpletion, p. 1221. 
 
 Purchaser, after conveyance cxecuteil, may claim deeds, 1222— as to 
 attested copies, ib. — will be protected against all parties to suit, 1223 — 
 unless Coiirt exceed its jurisdiction, ib. — allowed compensation for 
 mis-description of estate, 1225. 
 
 C. As to the practice when the purchaser fails to complete, p. 1226. 
 
 Course to be adopted if purchaser refuse to complete, 1226 — if supposed 
 to be irresponsible, ib. — if supposed to be responsible, 1227 — purchaser 
 whether allowed to forfeit de^josit and abandon contract, ib.
 
 TABLE OF CASES. 
 
 Abbott, III re, 725. 
 
 — r. Calton, 1131. 
 
 — r. Darnell, 143, 144. 
 
 — V. (Tcraghty, 142. 
 
 — r. Stratteii, 23!), 311. 
 
 — V. Sworder, 04, 10S2, 1131. 
 Abel r. Heatheote, lOitO. 
 
 Aberaman Ironworks Co, r. Wickens, 1006, 
 
 1011. 
 Aberdeen R. C Compy. v. Blaikie, 31, 44. 
 Abergavenny, Earl of. In re, 14. 
 Acker'.s Trust, In re, 721. 
 Ackroyd v. Smith, 535, 541. 
 Acland v. Gaisford, 192, 628, 649. 
 Acraman r. Corbett, 899, 905. 
 Acton V. Blundell, 364, 365. 
 
 — r. Woodgate, 890, 901. 
 Adam, la re, 1177. 
 
 Adams v. Andrews, 199, 920. 
 
 — V. Blackwall E. C, 210, 258, 447, 
 
 988, 992. 
 
 — V. Broke, 1059. 
 
 — V. Gamble, 10, 571. 
 
 — V. Heatheote, 1091. 
 
 — V. Lindsell, 2 lit. 
 
 — V. Taunton, 608, 1139. 
 
 — V. Weare, 1083. 
 Adamson v. Evitt, 18, 97. 
 
 — V. Jarvis, 103. 
 Adderley r. Dixon, 985, 987. 
 Addie's Charity, Ex parte, 280. 
 Addis r. CampbeU, 524, 749, 751, 883. 
 Addison -r. Walker, 411. 
 
 Adey v. Arnold, 544. 
 
 Adsetts V. Hives, 236. 
 
 Advocate General v. Smith, 274. 
 
 Affleck V. James, 52. 
 
 Agar V. Macklew, 221. 
 
 Agra Bank v. Barry, 415, 854, 858, 862, 
 
 864, 870, 875, 877. 
 Aheame v. Hogan, 20, 31, 748. 
 Aicken v. Macklin, 914. 
 Airey v. Hall, 900. 
 Airth Earldom, 350. 
 Aislabie v. Rice, 1126. 
 Albiuia, In re, 579. 
 Alcock V. Delay, 227. 
 Aldborough, Lord, v. Trye, 753, 754. 
 Alder v. Boyle, 180, 187. 
 Alderson v. White, 209, 420, 821. 
 Aldridge v. Westbrook, 1215. 
 Alexander, Ex parte, 32. 
 
 — V. Crystal Palace R. Co., 212. 
 
 — appt. Newman resp., 242. 
 
 — V. Crosbie, 279, 1140, 
 
 Alexander, r. Crosby, 309, 314, 429, 462. 
 
 — V. Jones. 1016. 
 
 — r. MiUs, 77, 1103. 
 Alice Rogeni, In re, 578. 
 Allan V. Bower, 1031. 
 
 — V. Gonime, 363. 
 Allday V. Fletcher, 941. 
 Allen V. Aldridge, 727. 
 
 — V. AUen, 2, 313. 
 
 — V. Anthony, 451, 866. 
 
 — r. Bennet, 225, 227. 
 
 — r. Cameron, 964. 
 
 — V. Jarvis, 727. 
 
 — r. Knight, 831, 845. 
 
 — V. Martin, 429, 512, 
 Alley V. Deschamps, 1086, 1087. 
 Alleyn v. Alleyn, 264. 
 Alleyne v. Alleyne, 936. 
 AUoway r. Bi-aine, 1087. 
 Alsop V. Lord O.xford, 407. 
 Alston, In re, 323. 
 
 — V. Grant, 822. 
 
 — r. E. C. Ry. Co., 445. 
 Alsworthy r. Norman, 968. 
 Alton V. Harrison, 907. 
 
 Alvanley v. Kinnaird, 37, 645, 802, 1038, 
 
 1039, 1212. 
 Alves V. Biuiljury, 316. 
 Alvine v. Bond, 1195. 
 Ambi-ose v. Ambi"ose, 1207. 
 Ames V. Mannering, 396. 
 
 — V. Nott, 993. 
 
 Ancaster, Duke of, v. Mayer, 817. 
 Anderson v. Baigent, 961. 
 
 — r. Elsworth, 904. 
 
 — V. Higgins, 150, 291. 
 
 — V. Radcliffe, 241. 
 — • r. Wallace, 624. 
 
 Andei-ton v. An-ov/smith, 792. 
 Andrew v. Andrew, 261, 262, 1110. 
 
 — V. Wrigley, 598. 
 Andrews v. Hailes, 165. 
 
 — V. Paradise, 782. 
 Anelay v. Lewis, 250. 
 Angell V. Duke, 200, 205, 966. 
 AngeU, Ex parte, 721. 
 Angier i: Stannard, 85. 
 Anglo-Danubian Co. r. Rogerson, 984 
 
 Anglo-Italian Bank, In re, 224. 
 
 Annersley v. Ashui'st, 1196. 
 
 Annesley v. Muggcridge, 179, ISl, 950, 
 
 972. 
 Anon, (Godb. 333) 784. 
 
 — (cited 6 Ves, 632) 49. 
 
 c 2
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Anon, (cited 6 MaJd. 10) 71. 
 
 — (cited 4 Taunt. 78o) 92. 
 
 — (cited 3 I)e G. & S. 420) 213. 
 
 — (cited 7 Ves. 437) 255. 
 
 — (cited 2 Sch. & Lef. 604) 420. 
 
 — (cited 1 Esp. 116) 569. 
 
 — (16 C. B. 574) 573. 
 
 — (cited Freemau C.C. 106) 652. 
 
 — (Freeman C.C. 1) 777—804. 
 
 — (Freeman Ch.H. 1«7) 867. 
 
 — (Freeman Ch. E. 107) 804. 
 
 — (Moore, 124) 787. 
 
 — (cited Moo. 618 & 3 Bcp. 82 b) 
 
 903. 
 
 — (20 L.T. 60) 993. 
 
 — (Sug. 105) 1212. 
 
 — (Sug. 301) 1072. 
 
 — (cited 6 Ves. 24) 748, 1081. 
 
 — (2 Ves. Jun. 385) 1200. 
 
 — (2 Ves. Jun. 280) 1204. 
 
 — (6 Ves. 513) 1203. 
 
 — (1 Ves. Jun. 453) 1202, 1206. 
 
 — r. Anon, (22 Beav. 431, 23 Beav. 
 
 273) 338. 
 
 — r. Collinge, 1126. 
 V. Handcock, 2. 
 
 — r. Walford, 1011. 
 Anson, Lord, r. Hodges, 1122. 
 
 r. Lee, 241. 
 
 V. Toogood, 1201, 1217. 
 Anspach, Margravine of, v. Noel, 431, 
 
 1097, 1113, 1125. 
 Anstruther v. Arabin, 993. 
 Apperton, In re, 573. 
 Appleby v. Duke, 1134. 
 Appleton i\ Binks, 185, 947. 
 
 — r. Campbell, 970. 
 
 Archbold v. Commissioners of Donations, 
 
 1015. 
 Archer v. Baynes, 228. 
 
 ■ — ■ V. Hudson, 35. 
 
 — V. Slater, 320. 
 
 — V. Coidsting, 544. 
 Archibald r. Wright, 840. ^ 
 Ark^^^■ight r. Gell, 366, 367. 
 Armiger r. Clarke, 1059. 
 Armitage v. Armitage, 339. 
 
 — r. Askham, 709, 712, 1129. 
 Armstrong r. Armstrong, 930, 970, 1046. 
 
 v. Waterford and Limerick 
 
 Ry. Co., 444. 
 
 — V. Lewis, 970. 
 Amald v. Amald, 256. 
 Arnell r. Bean, 850. 
 Ai-nold, Jn re, 210, 259, 978. 
 
 — r. Garner, 87. 
 
 — V. Mayor of Gravesend, 82, 473. 
 
 — V. Ridge, 473. 
 
 — V. Woodham, 11, 841. 
 Amot V. Biscoe, 97. 
 An-owsmith, In re, 584. 
 Ashby V. Ashby, 1002. 
 
 — £x parte, 568. 
 Ashcroft, Julia, In re, 574, 575. 
 Asher r. ^\Tiitlock, 402, 4u3. 
 Ashley, Ex parte, 36. 
 
 Ashley V. ^yaugh, 268. 
 Ashton's Charity, 17, 1124. 
 
 — V. Jones, 687. 
 Ashton t. Wood, 606, 007, 1068,1109, 
 
 1 1 0(^ 
 
 Ashweil's Wm, 400. 
 
 Ashwin v. Burton, 838. 
 
 Aslnvorth v. INIounsey, 150. 
 
 Aspden r. Seddon, 370. 
 
 Astbury, Ex parte, 537, 567. 
 
 Astley V. Manchester, Sheffield and Line. 
 
 Ey. Co., 762. 
 Aston r. Meredith, 1187. 
 Atcherley r. Vernon, 266, 268. 
 Atchison r. Le Mann, 571. 
 Athenreum Life Ass. Soc. r. Pooley, 838. 
 Atkinson, //(. re, 30, 849, 871. 
 
 — r. Smith, 891, 960, lOOO. 
 Atkyns r. Eowe, 929. 
 Attenborough r. Edwards, 1053. 
 Atterbury r. Wallis, 875, 879, 880. 
 Attorney-General r. Andrew, 457. 
 
 — V. Backhouse, 832, 868, 
 
 874. 
 
 — V. Brettingham, 16. 
 
 — r. Brunning, 257, 275. 
 
 — V. Brown, 525, 700. 
 
 — r. Campbell, 278. 
 
 — r. Cashel, Corp. of, 33, 
 
 165. 
 
 — V. Chambers, 368. 
 
 — V. Chi-istchurch, 629, 
 
 630. 
 
 — V. Christ's Hospital, 840. 
 
 — r. Lord Clarendon, 34. 
 
 — T. Coventry, ISIayor of, 
 
 382, 840. 
 
 — V. Cox, 594, 800. 
 
 — V. Culverwell, 347. 
 
 — r. Dalton, 336. 
 
 — V. Davey, 16, 382, 383. 
 
 — V. Day, 197, 257, 1023, 
 
 1034, 1066, 1073, 
 1201. 
 
 — r. Drai:)ers' Co., 17. 
 
 — r. Ewelme Hosjjital, 
 
 123, 322, 323. 
 
 — r. Fishmongers' Co., 
 
 322. 
 
 — v. Flint, 380, 838, 865. 
 
 — r. Floyer, 276, 278. 
 — • r. Forster, 333. 
 
 — r. Gardner, 685. 
 
 — V. Gell, 276. 
 
 — r. Glynn, 687. 
 T. G. E. R. Co., 214. 
 
 — r. Green, 16. 
 
 — r. Hall, 17,377,864,868. 
 
 — r. Holford, 275. 
 . — V. Kerr, 757. 
 
 — r. Lambe, 409. 
 
 — r. Leeds, Mayor of, 
 366. 
 
 r. Littledale, 278. 
 
 — r. London, Corp. of, 
 382.
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Attorney-General v. Lonsdale, 
 368. 
 
 Earl of, 
 
 — I'. Ludlow, Corp. of, 627. 
 
 — r. Magdalen Coll. IG 
 
 17, 382. 
 
 — V. Mangles, 274. 
 
 — V. Mathias, 372, 373. 
 
 — r. Munro, 685. 
 
 — %■. Newark, Corp. of, 16, 
 
 1211, 1224. 
 
 — V. Newcastle, Corj). of, 
 
 892, 941. 
 
 — r. Pargeter, 16, 874. 
 — • r. Parkhurst, 27. 
 
 — V. Payne, 382, 383. 
 
 — V. Persse, 383. 
 
 — V. Pilgrim, 16, 1224. 
 
 — V. Plymouth, Corjj. of, 
 
 18, 364. 
 
 — r. Potter, 527, 598. 
 
 — r. Pretyman, 17. 
 
 — V. Earl of Sef ton, 278. 
 
 — ?'. Simcox, 274. 
 
 — V. Sittingbourne and 
 
 Sheerness Railway 
 Co., 741. 
 
 — V. Sitwell, 75, 309, 430, 
 
 645, 1036. 
 
 — V. South Sea Co., 16, 
 
 1224. 
 
 — r. Stephens, 106, 842, 
 
 867. 
 •— r. Upton, 276. 
 
 — V. Vigor, 268. 
 
 — r Ward, 685. 
 
 V. Whorwood, 941. 
 
 — r. Wilson, 18, 1046. 
 
 — V. Wilkins, 382, 823, 
 
 833. 
 
 — V. Worcester, Bishop of, 
 
 287. 
 Attorney- General of Prince of Wales v. 
 
 Lambe, 967. 
 Attwater, r. Attwater, 19. 
 Attwood V. Small, 102, 104, 105, 137, 
 
 1056. 
 Attwood r. Taylor, 627. 
 Aubinr. Holt, 1045. 
 Aubrey, In re, 716. 
 
 — V. Fisher, 133. 
 Aubry v. Keen, 591. 
 Austen v. Halsey, 738. 
 Austin V. Chambers, 40, 184. 
 
 — V. Croome, 674, 731. 
 
 — V. Guardians of Bethnal Green 
 
 235. 
 
 — V. Llewellyn, 389. 
 
 — V. Martin, 605. 
 
 — V. Tawney, 2o9, 420. 
 Avarue v. Browne, 283, 1109. 
 Aveling v. Knipe, 923, 924, 930. 
 Averall v. Wade, 8.'^9. 
 
 Avery v. Griffin, 999. 
 
 — r. Langford, 992, 994. 
 Avison r. Holmes, 19. 463, 470. 
 Averst V, Jenkins 893. 
 
 Ayles V. Cox, 138, 586, 1073, 1221. 
 Aylett r. Ashton, 999, 1000, 1070. 
 Aynsley v. Glover, 358, 359. 
 
 Back r. Andrews, 932, 933. 
 
 Backhouse v. Taylor, 624. 
 
 Bacon v. Simpson, 249. 
 
 Badart's Trusts, In re, 278. 
 
 Badcock, In re, 590. 
 
 Badeley r. Vigur.'^, 779, 814. 
 
 Baden r. Countess of Pembroke, 55. 
 
 Badger r. Shaw, 568. 
 
 Bage, Ex parte, 44. 
 
 Baggett V. Meux, 9, 571. 
 
 Baglehole v. Walters, 92, 93. 
 
 Bagot V. Bagot, 817. 
 
 Bagshawe, In re, 723, 724. 
 
 Baikie v. Chandless, 454. 
 
 Bailey v. Appleyard, 371. 
 
 — V. Collett, 569, 630. 
 
 — V. De Crespigny, 971. 
 
 — n Maude, 1195. 
 
 — V. Piper, 1065. 
 
 — v. Eichardson, 274, 451, 866, 874, 
 
 917. 
 
 — V. Sweeting, 208. 
 BaillJe v. Jackson, 1191. 
 
 Bain r. Fothergill, 792, 951, 954, 955. 
 Bainbridge v. Kinnaird, 515, 1070. 
 Baiubrigge v. Moss, 241. 
 Baird v. Fortune, 538. 
 Baker v. Bent, 750. 
 
 ■ — V. Bradley, 753. 
 Baker v. Carter, 47. 
 
 — V. Loader, 20. 
 
 — V. Monk. 749, 1082. 
 
 — V. Read, 35, 48. 
 
 — V. Puchardson, 530. 
 
 — V. Sowter, 1223. 
 
 — V. Wetton, 379. 
 Baldwin r. ]5elcher, 247, 400. 
 
 — V. Boulter, 250. 
 
 — r. Peach, 327. 
 
 Balfour v. Welland, 597, GOO, GOl, 1138. 
 Ball V. Burnford, 890. 
 
 — V. Harris, G18, 620, 622. 
 
 — V. Hutchins, 1103. 
 
 — V. L. & N. W. Ry. Co., 732. 
 Ball V. Mannin, 28. 
 
 Ballard v. Way, 117. 
 Balls r. Margrave, 412. 
 Bailey v. Wells, 780. 
 Balmanno v. Lumley, 1070, 1095. 
 Bamford v. ]3amford, 398. 
 
 — V. Shuttleworth, 948. 
 
 — r. Watts, 1215. 
 Banbury v. Peerage, 337. 
 
 — Lord, r. Briscoe, 409. 
 Bancks v. Ollerton, 574. 
 Bandon, Lord, r. Belcher, 1225. 
 Bank of England case, 925. 
 Bankart v. Bovvers, 960. 
 
 — r. Tennant, 1031. 
 Banks v. Banks, 1204, 1205. 
 Banner r. Jackson, 882. 
 
 Bamierman r. Clarke, 128, 639, 708, 1228.
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Barber, In re, 568, 575. 
 — V. Brown, 912. 
 Barclay, Ex parte, 535, 5G8. 
 
 — V. Eaine, 55-4, 775, 1140. 
 Bardell r. Spinks, 103. 
 Barfield v. Kogers, 1221. 
 Bargate r. Shortridge, 190. 
 Barham r. Earl of Clarendon, 943. 
 
 — r. Earl of Thanet, 817.. 
 Barker, In re, 276. 
 
 — V. Greenwood, 191, 658. 
 
 — r. Harper, 1217. 
 
 — V. Han-ison, 34, 1053. 
 
 — V. N. L. R. Co., 979. 
 
 _ V. North Staff. Ey. Co., 210, 213, 
 442. 
 
 — V. Kichardson, 325. 
 
 — V. Smark, 730. 
 
 -— V. Vansommer, 756. 
 
 — r. Venables, 709. 
 
 Barkworth v. Young, 197, 208, 215, 928, 
 
 1013, 1028, 1035. 
 Barling r. Bishopp, 908. 
 Barlow v. Osborne, 1190, 1202. 
 
 — V. Rhodes, 538, 540. 
 Barnard, In re, 724, 795. 
 
 — V. Bagshaw, 658. 
 
 — V. Cave, 1039. 
 Barnard r. Hunter, 39, 752. 
 Barnardiston v. Ling wood, 751. 
 Barnes v. Crowe, 268, 269. 
 
 — v. Raester, 914. 
 
 — V. Stuart, 355. 
 
 — v. Wood, 996. 997, 1069. 
 Barnett v. Sheffield, 838. 
 
 — V. Weston, 828. 
 
 — V. Wheeler, 147, 1113. 
 Barnfather v. Jordan, 28. 
 
 Barnhart r. Greenshields, 859, 866, 874. 
 Barnwell v. Iremonger, 264, 732, 818. 
 
 — V. Harris, 131, 171. 
 Barr, In re, 30. 
 
 — V. Gibson, 806. 
 Barr's Trusts, In re, 871. 
 Barrack v. McCuUock, 906, 938. 
 Barratt r. Wvatt, 522. 
 Barrand v. Ai'cher, 118, 593, 863. 
 Barrett r. Sabine, 822. 
 Barrett, Ex, parte, 655. 
 
 — V. Birmingham, 398- 
 
 — r. Ring, 998, 1063, 1065. 
 
 — V. Rolfe, 198. 
 Barrington, Ex parte, 955. 
 
 — In re, 435. 
 
 Barrow, In re, 724. 
 
 — V. Barrow, 11, 710, 999, 1000. 
 _ n Griffith, 603. 
 
 — V. Wadkin, 22. 
 
 BaiTy V. Croskey, 99,_451, 802, 968. 
 
 — r. Harding, 817. 
 
 — r. Man-iott, 669. 
 
 — V. Neasham, 129. 
 Bartlett v. Bartlett, 30, 848, 850. 
 
 _ r. Pickersgill, 931, 1036. 
 _ V. Purndl, 181. 
 
 — V, Rees, 916. 
 
 Bartlett r. Salmon, 104, 119, 123, 138, 
 146, 1072, 1076. 
 
 — V. Tuchin, 874. 
 
 — r. Vinor, 970. 
 Bartley r. Bai-tley, 609. 
 Barton, Ex parte, 624. 
 
 — r. Dawes, 530, 531. 
 
 — T. Lord Downes, 1210. 
 
 — V. Fitzgerald, 789, 790. 
 
 — r. Latour, 1216. 
 Barton v. Van Heythuysen, 892. 
 Barwell v. Barwell, 47, 48. 
 Basham r. Smith, 30. 
 
 Baskcombe v. Beckwith, 114, 119, 121. 
 
 — V. Phillips, 96, 1132. 
 
 Baskett r. Cafe, 35, 1035. 
 Bass V. Welsted, 514. 
 Bassett r. Nosworthy, 824, 832. 
 Bassford r. Blakesley, 883. 
 Batcbelor v. Middleton, 391, 392. 
 Bateman, In re, 665. 
 
 — V. Phillips, 967. 
 Bateman's Settled Estates, In Be, 1176. 
 Bates r. Bonnor, 1202, 1203, 1204, 1217. 
 
 — r. Brothers, 473. 
 
 — r. Johnson, 828, 829, 831. 
 
 — V. Mackinley, 813. 
 Battersbee v. Tarrington, 890. 
 Battersby r. Rochfort, 856. 
 Battishill v. Reed, 374. 
 Baugh V. Price, 45. 
 
 Baudes v. Amhurst, 1026. 
 Baumann v. James, 227. 
 Bawtree r. Watson, 751, 758. 
 Baxendale r. McMurray, 366. 
 — r. Seale, 748, 1053. 
 Baxter v. Conolly, 145, 991. 
 Bayley, In re, 725. 
 Baylies r. Baylies, 1047. 
 Baylis v. Newton, 935. 
 
 — r. Usher, 971. 
 Ba5aiton, Ex parte, 33. 
 Bayspool v. Collins, 891,^900, 90L 
 Beaden v. King, 15, 34, 35, 48, 851. 
 Beadon r. King, 883. 
 
 Beale, In re, 725. 
 
 — V. Sanders, 559- 
 
 — V. Symonds, 252, 1141. 
 Beanland r. Bradley,- 20. 
 Bealey r. Stuart, 960. 
 
 Beardraer v. London and N. W. Ry. Co. 
 
 210. 
 Beatson r. Beatson, 900. 
 
 — r. Nicholson, 10 30. 
 Beauchamp v. G. W. Ry. Co^, 762. 
 Beau clerk v. Ashbiirnham, 87. 
 Beaufort Duke of v. GljTin, 570, 950, 
 1060. 
 _ r. Patrick, 843, 1031. 
 
 _ V. Phillips, 466, 1117, 
 
 1118. 
 — V. ]\Iayor of Swansea, 
 
 333. 
 Beaufoy, In re, 666. 
 Beaumont, Ex parte, 44. 
 — V. Branley, 744.
 
 TABLE OP CASES. 
 
 XXXIX 
 
 Beaumont v. Duke, 121. 
 
 — V. Mountain, 310. 
 
 — V. Lord SaHsbury, 729, 1138. 
 -Beaumont's Mortgage Estate, lure, 1185. 
 
 Beavan v. M'Donnell, 6, 194. 
 
 — V. Lord Oxford, 462, 473, 481, 484, 
 
 486, 889. 
 Bebb V. Bunny, 644, 1207. 
 Beck V. Kantorowicz, 189, 927. 
 
 — & Flower, In re, 726. 
 Beckett v. Cordley, 837, 875. 
 Beckford r. Beckford, 932. 
 Bedford r. Bacchus, 853. 
 
 Bedford & Camb. By. Co. v. Stanley, 443. 
 Bedford, Uuke of, r. Trustees of British 
 Museum, 773. 
 
 — V. Bacchus, 853. 
 
 — V. Forbes, 488. 
 Beech, In re, 1220. 
 
 — r. Keep. 900. 
 Beer r. Beer, 813. 
 Beere v. Head, 4S7-488. 
 Beeston v. Weale, 366. 
 
 — V. Weate, 374. 
 Beete r. Bidgood, 129, 
 
 Beevor v. Luck, 283, £03, 582, 693, 915, 
 916. 
 
 — V. Simpson, 428. 
 Begbie v. Fenwick, 567. 
 Beioley v. Carter, 76, 1102, 1107. 
 Belaney v. Belaney, 271. 
 Belcher r. Vardon, 129. 
 Belchier r. Kenforth, 828. 
 
 — r. Reynolds, 222, 1084. 
 Belfast IT. Comniissionej-s, Ex parte, 488. 
 Bell V. Ahearne, 757, 758. 
 
 Bell V. Cade, 1019, 1020, 1021. 
 Bell V. Carter, 472. 
 
 — f. Holtby, 110.3. 
 
 — r. Wilson, 110, 373. 
 Bellamy, r. Breckender, 1134, 1135. 
 
 — V. Cockle, 37, 1192. 
 
 — V. Liversedge, 321, 1008. 
 
 — V. Sabine, 39, 748, 75-3, 757, 
 
 863, 872, 873, 1056. 
 Bellas T. Harmer, 950. 
 Bellasis, Lady, v. Compton, 930. 
 Bellringer v. Blagi-ave, 1047. 
 Belvedere v. Rochfort, 817. 
 Belworth v. Hassell, 114. 
 Benbow v. Davies, 1134. 
 
 — V. Townsend, 989. 
 Benecke r. Chadwick, 229. 
 Bench 7'. Bills, 614. 
 Bending v. Bending, 543. 
 Bendyshe, In re, 1182. 
 Benham's Trusts, 343. 
 
 Benham r. Keane, 459, 480, 481, 482, 
 
 486, 488, 853, 854, 857. 
 Bennet's case, 788. 
 Bennett College v. Carey, 193. 
 
 — V. Mayhew. 940. 
 
 Bennett, Ex x>nrte, 32, 33, 34, 46, 985. 
 
 — In re, 724, 726, 1119. 
 
 — V, Colley, 48. 
 
 — V, Cooper, 810, 
 
 Bennett r. Fowler, 1115, 1130. 
 
 — ■;•. Ingoldsby, 788. 
 
 — r. Powell, 467. 
 
 — V. Rees, 1095, 1098. 
 
 — V. Smith, 988, 994. 
 
 — V. Lord Tankerville, 256, 2C1. 
 
 — v. Wheeler, 1198. 
 
 — V. Windham, 68, 77. 
 
 — V. Womack, 168. 
 Bensley v. Burdon, 810. 
 
 Benson r. Glastonbury Canal Co., 1092. 
 
 — V. Lamb, 423, 512. 
 
 — V. Paidl, 980. 
 Bentham v. Wiltshire, 617. 
 Bentick v. Willink, 529. 
 Bentley v. Crasen, 430. 
 Bentley r. Craven, 19, 120, 1104. 
 Berdoe r. Dawson, 753. 
 Berkeley v. Dauh, 281, 283. 
 
 — Peerage case, 348, 349, 350. 
 Berkeley's will, the Earl of. In re, 716. 
 Bermingham r. Burke, 796. 
 Bernardy v. Harding, 187. 
 Berndston r. Strong, 730. 
 
 Beri-idge v. Ward, 362, 531. 
 Berrington v. Evans, 394. 
 Berrisford v. Milward, 450, 841. 
 Berry v. Armistead, 104, 798, 800. 
 
 — V. Gibbons 497, 1190. 
 
 — V. Hebblethwaite, 1214. 
 
 — V. Johnson, 1211. 
 
 — r. Storey, 740. 
 
 — V. Young, 142, 305, 417, 676, 677, 
 
 959. 
 Berwick on Tweed, Mayor of, v. Oswald, 
 
 971. 
 Best t;. Drake, 1094. 
 Bethell v. Green, 622. 
 Buthlem Hosjntal, In re, 663. 
 Letts t;. Bui-ch, 192. 
 Bcvan v. Bevan, 1213. 
 
 — V. Habgood, 37. 
 Beverley's case, 5. 
 
 Beverley, Mayor of, r. Craven, 315. 
 Bewley r. Carter, 1103. 
 
 — r. Hancock, 926. 
 Beyson v. W. & B. C. Co., 967. 
 Bickerton v. Burrell, 946. 
 Bickett r. Morris, 368. 
 Bickfoi'd V. Parson, 815. 
 Biddle v. Perkins, 1139. 
 Bidlake r. Arundel, 324. 
 Bigg V. Strong, 188. 
 
 Biggs V. Wisking, 237. 
 Bignell v. Buzzard, 108. 
 Bignold, Ex parte, 66. 
 
 — In re, 725, 726. 
 
 — V. Audland, 179. 
 IJilLige V. Southee, 20. 
 Billing r. Webb, 570, 1221. 
 Bilton, Ex parte, 724. 
 liingham r. Bingham, 806. 
 Biugle, In re, 573. 
 ]3iiigley School, In re, 1224. 
 
 Binks V. Lord Rokeby, 433, 590, 628, 
 650, 1009, 1075, 1079, 1140.
 
 xl 
 
 TABLE OF CASES. 
 
 Binns v. Nicholls, 30(5. 
 
 Birce v. Bletchley, 1013. 
 
 Birch, In re, 339, 666, 120i, 1227. 
 
 — r. Blagrave, 935. 
 Birch r. Joy, 246, 629.. 
 
 — V. Podmore, 636, 1137. 
 
 — V. Wright, 813. 
 Bird In re, 656. 
 
 — V. Bass, 845. 
 
 — V. Bird, 760. 
 
 — r. Boulter, ISl, 182, 189. 
 
 — V. Fox, 65, 152. 
 
 — V. Higginson, 199. 
 
 — V. Johnson, IS. 
 
 — V. Lake, 773. 
 Birds r. Askey, 733, 941. 
 Birkenhead Railway Co., In re, 714. 
 
 — Railway Co. v. Pilcher, 26. 
 
 — Docks, trustees of, v. Laii'd, 
 1022. 
 
 Birtle's settled estates. In re, 1173. 
 Bisco V. Earl of Banbury, 864. 
 Biscoe V. Perkins, 1139. 
 
 — r. Wilks, 1103, 1124. 
 Bishop's Waltham E,y. Co., In re, 479. 
 Blachford r. Kirkpatrick, 1025, 1113. 
 
 _ V. Wolley, 1004. 
 Blackbeard r. Lindigren, 1199. 
 Blackburn r. Gregson, 730. 
 
 — r. Scholes, 178, 186. 
 
 — V. Smith, 27, 126, 157, 281, 
 
 303, 945. 
 
 — r. Stace, 1089. 
 Blackett r. Bates, 225, 1046, 1084. 
 Blackham r. Pugh, 108. 
 
 Blakie V. Clark, 11, 744, 1223. 
 
 Blacklow r. Laws, 63, 127, 162, 430, 
 
 1097, 1140, 1196, 1224. 
 Blackmore, In re, 724, 726. 
 Blackston r. Morland, 693. 
 Blackwell, In re, 1221. 
 Blackwood v. Borrowes, 63, 188. 
 
 — r. London Chartered Bank of 
 
 Austraha, 824. 
 Blagden r. Eradbear, 182, 188, 208, 220, 
 
 £25, 1034. 
 Blair V. Bromley, 382. 
 
 — r. Xugent, 377. 
 
 — r. Ormond, 238, 326, 377, 967. 
 Blake Ex parte, 1064. 
 
 — In re, 398, 1221. 
 
 — r. Hungerfoi'd 831. 
 
 — V. Mowatt, 19, 1053. 
 
 — r. Phinn, 146, 1070. 
 Blake's settled estates, In re, 1177. 
 Blakeley t: Brady, 900. 
 Blakeney v. Bagott, 886. 
 Blakesley ?•. Whieldon, 5G2, 1118. 
 Blakey r. Porter, 967. 
 Blanchard r. Bridges, 122. 
 Bland r. Crowley, 961. 
 
 — r. Lipscomb, 372. 
 Blandy r. Herbert, 697. 
 Bleakiey r. Smith, 219, 23-3. 
 Blenkinsopp v. Blenkinsopp, 881, 905. 
 Blennerhassett v. Day, 32, 38. 
 
 Blewett, //; re, 688. 
 
 Bliss ;•. Putman, 593. 
 
 Blomfield v. Eyre, 911, 913. 
 
 Bloomar, In Re, 1221. 
 
 Bloomer r. Spitele, 744, 746. 
 
 Blore V. Sutton, 189, 232, 1031, lu33, 
 
 1127. 
 Blosse V. Lord Clanmorris, 1099, 1102, 
 
 112.5, 1139. 
 Blount V. Blount, 630. 
 
 — r. Gt. S. & W. R. Co., 210. 
 Bloye's Trust, In re, 34, 36, 37, 44. 
 Bluck r. Gompertz, 236, 968. 
 Blundell r. Brettarcle, 222, 624. 
 
 r. Stanley, 352. 
 Blyth V. Elmhirst, 1096. 
 Blyth's Trusts, In re, 714. 
 Board v. Board, 403. 
 Boai-dman r. Mostyn, 1031. 
 Boden, In re, 585, 586, 591. 
 Bodington r. Gt. W. R. Co., 424. 
 Boehm v. Wood, 281, 420, 421, 1058, 
 
 1121 
 Bogdell r. Drummond, 225. 
 Bolckow V. Seymour, 226. 
 Bold T. Hutchinson, 760. 
 Bolding V. Lane, 399. 
 Bolingbrooke, Lord, case of, 512, 1063. 
 Bolton r. Stannard, 60, 618, 1010. 
 Bolton, Lord r. Tomlin, 198. 
 Bolton's Lease, In re, 700. 
 Bond V. England, 817. 
 
 — r. Kent, 734. 
 
 — ;;. Rosling, 198, 9G1. 
 
 — V. Warden, 660. 
 
 Bone r. Pollard, 923, 933, 937. 
 Bonner r. Johnston, 1090, 1091. 
 Bonnett v. Sadlsr, 1060. 
 Bonomi r. Backhouse, 369. 
 Booth V. Alcock, 122, 534, 537, 538. 
 Boothby v. Boothby, 751, 754, 758. 
 
 — r. Walker, 1091. 
 
 Borell r. Dann, 172, 173, 874, 1080, 
 
 1181. 
 Borough T. Anon, 938. 
 Borrows v. Ellison, 378. 
 Bos V. Helsham, 224, 777, 1225. 
 Bostock V. Floyer, 656. 
 Bott I'. Smith, 905. 
 Bough ton, /» re, 1175. 
 
 — r. Jewell, 142, 143, 676. 
 Boulton, Ex parte, 848, 850. 
 
 — V. Beard, 1125. 
 BourdiUon r. Roche, 656. 
 Bourne r. Gatliffe, 963. 
 Boursot r. Savage, 863, 874, 880. 
 Bousfield V. Godfrey, 238, 967. 
 
 — V. Hodges, 65, 79, 431, 1190, 
 
 1199. 
 Bouverie, Ex parte, 714. 
 Bovil r. Padmore, 1137. 
 Bowden r. Henderson, 341, 344. 
 Bowen v. Barlow, 257, 263. 
 
 — V. Evans 48, 826, 831, 832, 1193, 
 
 1223, 1224 (1225 Evan ]). 
 
 — V. Kirwan, 748.
 
 TABLE OF CASES. 
 
 xli 
 
 Bower r. Cooper, 115, 562, 1081, 1132. 
 
 Bowers v. Cator, 1023. 
 
 Bowe's Estate, /n re, 719. 
 
 Bowes r. Law, 767. 
 
 Bowker r. Burdekin, 731. 
 
 Bowles r. Rogers, 2.54, 730, 1118. 
 
 — r. Bound, 92, 117. 1079. 
 
 — V. Stewart, 97, 659. 
 
 — V. Waller, 171. 
 
 Bown V. Stenson, 309, 433, 434, 1097, 
 
 111.3. 
 Bowrat'. Wright, 591, 1221. 
 Bowsellr. Mendham, 171, 1104, 1141. 
 Bowyer r. Blackwall, 1203. 
 
 — r. Bright, 1078. 
 
 — r. Woodman, 394, 398, 399. 
 Boyce v. Green, 201, 217, 225. 
 Boyd r. Belton, 841. 
 
 — V. Higginson, 577. 
 
 — r. Pawle, 689. 
 
 — r. Shon-ock, 133, 536, 567. 
 Boydell v. Dnimmond, 225. 
 
 — r. Manby, 1192. 
 Boyes v. Liddell, 424, 1096. 
 Boyle, In re, 460, 482, 725. 
 Boyman r. Gutch, 975. 
 Boys r. Ay erst, 228. 
 Boyse v. Colclough, 1008. 
 
 — r. Lord Rossborongb, 1008. 
 Brace v. Duchess of Marlbonnigh, 457, 
 
 828. 
 
 — V. Wehnert, 266, 988, 990. 
 Brace jr, //) re, 723. 
 Bradburne r. Botfield, 776. 
 Bradbury v. Wright, 168. 
 
 Bradford, Earl of, v. Earl of Bomney, 
 
 744. 
 Bradish r. Ellames, 1143, 1147. 
 Bradley r. Bevington, 1101. 
 
 — r. Holdsworth, 201. 
 
 — r. L. & N. W. Ry. Co., 625, 626. 
 
 — r. Munton, 708, 1063, 1221. 
 Bradshaw, Ex parte, 636, 717. 
 
 — In re, 626. 
 
 — r. Bennett, 968. 
 
 — V. Bradshaw, 964, 1090. 
 
 — r. Fane, 719, 1139, 1140. 
 Bradstock, Ex parte, 513. 
 Braithwaite, In re, 713. 
 
 — r. Britain, G03. 
 
 Bramley r. Teal, 1090. 
 Branch v. Browne, 1220. 
 Brand v. Hammersmith and City Ry. Co., 
 
 775. 
 Brandling r. Phnmner, 114, 458, 460. 
 Brandlyn v. Ord, 904. 
 Brandon v. Brandon, 667, 714, 888. 
 
 — V. Woodthorpe, 345. 
 Branmer's Estate, In re, 715. 
 Brasher's Trusts, In re, 663, 669. 
 Brassac r. Martyn, 1087. 
 Brazier v. Hudson, 581, 623. 
 Brasscy r. Chalmers, 53, C08. 
 Bratt r. Ellis, 177, 950. 
 
 liray r. Finch, 968. 
 
 Braybrooke r. Attorney-General, 278. 
 
 Braybrooke, Lord, r. Inskip, 281, 1137, 
 
 1139. 
 Brave, In re, 667. 
 Braye, Baroness, In re, 718, 719. 
 Braye Peerage, 320, 334. 
 Breadalbane, Marquis of, r. ]\Iar<iuis 
 
 Chandos, 744, 760. 
 Brealey r. Collins, 101, lOSO. 
 Brearcliff r. Dorrington, 481. 
 Brearley's Settled Estates, 1182. 
 Bredicott, Vicar of, In re, 665. 
 Bree v. Holbeck, 777- 
 Breedon v. Breedon, 597. 
 Breeze r. Hawker, 311. 
 Brennan r. Bolton, 1226. 
 Brett r. jMarsh, 804. 
 Brettle v. Burdett, 598. 
 Brewer r. Pocock, 1218. 
 Brewster r. Kitchin, or Kidgill, 798. 
 Brice v. Stokes, 75, 657. 
 Bridge r. Beadon, 99. 
 Bridge v. Bridge, 900. 
 Bridger r. Penfold, 1200, 1201. 
 
 — V. Rice, 1047. 
 
 Bridges r. Garrett, 191, 659, 660, 710. 
 
 — V. Longman, 78, 170, 285, 1125, 
 
 1130, 1131, 1139. 
 
 — V. Robinson, 644. 
 
 — V. Wilts & S. W. R. Co., 443. 
 Bridgeman, In re, 588. 
 
 Briggs, V. Jones, 730. 
 
 Bright's Trusts, In re, 843, 860, 861, 876. 
 
 Bright v. Walker, 374. 
 
 Brighton, L. & S. C. Ry. Co., In re, 713. 
 
 Brine r. Featherstone, 878. 
 
 Bringloe r. Goodson, 313. 
 
 Brinkley ?•. Hann, 1054. 
 
 Briscoe, In re, 714. 
 
 Bristol Dock Act, In re, 621. 
 
 Bristow v. Eastman, 3. 
 
 — V. Skirrow, 1191, 1196, 1224. 
 
 — T. Whitiuore, 1022. 
 
 — V. Wood, 767, 1140. 
 
 British and American E. Co. v. Colson, 
 
 219. 
 British Empire Shipping Co. v. Somes 
 
 968. 
 British Museum, Trustees of, v. Finnis, 
 
 362. 
 Broad v. Selfc, 36. 
 Broadbent v. Ramsbottom, 365. 
 Brocklebank r. Whitehaven June. R. Co. 
 
 57. 
 Brodier. St. Paul, 225, 964. 
 Broke's Lord, estate. In re, 720. 
 Bromley c. Smith, 749, 750. 
 Brompton, Incumbent of. Ex parte, 763. 
 Brook V. Badley, 264. 
 
 — V. Raw], 108. 
 Brooke, In re, 7 1 9. 
 
 — r. Anon, 1111. 
 
 — r. Brooke, 1021. 
 
 — V. Champernowne, 630, 643. 
 
 — V. Garrod, 209, 280, 286, 420, 421, 
 
 822. 
 
 — v. Hewitt, 253.
 
 xlii 
 
 TABLE OP CASES. 
 
 Brooke r. Lord Mostyn, 753. 
 
 — r. Pearson, VJ. 
 
 — Lord, V. Kounthwaite, 102, 140. 
 Brookes r. Lord Whitworth, 1007. 
 Brooking, In re, 669. 
 
 Brooking's Devisees, In re, 713. 
 Brooks V. Day, 454. 
 lirookfield v. Bradley, 2. 
 Brookman v. llothscbild, 34, 45. 
 Broome r. Monck, 264, 265, 266, 267, 
 
 1011. 
 Brothers r. Bence, 878. 
 Brothertou v. Hatt, 878. 
 Brougliam v. Squire, 759. 
 Broughton i: Broughtoii, 86. 
 
 — t: Conway, 790. 
 
 — V. Hutt, 1053. 
 
 — V. Lashmar, 1129. 
 Brown, in re, 1019, 1185. 
 Brown's Estate, In re, 69. 
 
 _ Trusts, In re, 850, 860. 
 Brown v. Bro\vn, 789. 
 _ V. Carter, 901. 
 _ r. Cole, 283, 582. 
 
 — V. Cross, 49. 
 
 _ V. Jones, 890, 892. 
 
 — V. Kennedy, 20. 
 
 — V. Lake, 1218. 
 
 — V. Oakshott, 883, 926. 
 
 — V. Paul, 171. 
 
 — r. Perrott, 472. 
 _ t. Pringle, 345. 
 
 _ V. RaincUe, 273, 997. 
 
 — V. Robins, 368. 
 
 — r. Rye, 1017, 1137. 
 
 — r. Savage, 858. 
 
 — r. Sewell, 413. 
 
 — V. Stead, 917. 
 Browne r. Luke, 725. 
 Browne's Trust, In re, 99, 724. 
 Browne v. Amyot, 813. 
 
 — v. Cavendish, 462. 
 
 _ V. Bishop of Cork, 391. 
 
 — T. Fenton, 138. 
 _ r. Lake, 709. 
 
 . — r. Lockhart, 411, 582. 
 -- I'. Paul, 549, 558, 1192. 
 
 — r. Pennefather, 1176. 
 
 — r. Savage, 694. 
 
 — V. Southouse, 180. 
 
 — r. Storey, 814. 
 Browning r. Wright, 545. 782, 790. 
 Brownson v. Lawrence, 820, 821. 
 Bruce, In re, 578. 
 
 — V. Garden, 758. 
 
 Bnunfit r. Morton, 95, 109, 117, 120, 
 
 138, 146, 168, 868, 874. 
 Brunskill v. Caird, 664. 
 Brunton r. Neale, 461, 996. 
 Bryan v. Lewis, 1057. 
 Bryant r. Busk, 142, 298, 312, 1122, 
 
 1125. 
 Buccleuch, Duke of, v. Wakefield, 165, 
 
 370. 
 Buchanan v. Poppleton, 147, 283, 352. 
 Buckell V, Blenkhorn, 10, 571. 
 
 Buckinghamshire Railways, In re, 670. 
 Buck, Ex luLvte, 711, 712. 
 
 - r. Lodge, 1091. 
 Buckland v. PapiUon, 169, 209. 
 
 — r. Pocknell, 737. 
 
 Buckle V. Mitchell, 889, 997, 999, 1046. 
 Buckley, In re, 661. 
 
 — V. HoweU, 68, 1183. 
 
 — r. Lanauzo, 857. 
 Buckmaster v. Harrop, 265, 1011, 1023, 
 
 1034. 
 Buckmaster v. Russell, 216. 
 Bucks Ry. Co., In re, 716. 
 Bugden v. Bignold, 98, 450, 838, 871. 
 Bulkeley v. Hope, 109, 352, 1020. 
 Bull V. Chapman, 243. 
 
 — V. Hutchins, 170, 495, 863. 
 
 — V. Price, 187. 
 Bullen V. Denning, 133. 
 BuUer r. Plunkett, 839. 
 Bullin V. Fletcher, 268. 
 Bullock r. Dodds, 13. 
 
 — V. Downes, 320. 
 
 — V. Thome, 903. 
 Bulmer v. Allison, 1227. 
 
 — V. Hunter, 899. 
 Bulteel V. Lord Abinger, 66. 
 Bunbm-y, In re, 1177. 
 Bunny v. Poyntz, 734. 
 Bunny r, Hopkinsoii, 793, 794. 
 Bunting v. Marriott, 1219. 
 Burbidge, In re, 1224. 
 Burch V. Coney, 796. 
 Burdin's wiU, In re, 1173. 
 Bmxlon v. Kennedy, 458. 
 Burgess v. Hill, 1133. 
 Burgess v. Wheate, 252, 440. 
 Bm-ke r. Annis, 1102. 
 
 — r. Greene, 240. 
 
 — V. Smyth, 1086. 
 
 Burkinshaw r. Bii-mingham, &g. Ry. Co., 
 
 57, 210, 448. 
 Burlace v. Cook, 832. 
 Burley's estates. In re, 1176. 
 Burn r. Carvalho, 732. 
 Burnaby r. Griffin, 1138. 
 Burnard r. Wainwright, 626. 
 Burne r. Robinson, 380, 398. 
 Bumell's estate. In re, 721. 
 Burnell, Ex parte, 32. 
 
 — r. Brown, 116, 189, 434, 438, 1075, 
 1125, 1177. 
 
 Burnett r. Lynch, 559. 
 Burnie, Ex parte, 905. 
 Burnley v. E. C. Ry. Co., 1018. 
 Burrel's case, 90.. 
 Burrough v. Martin, 98. 
 
 — r. Skinner, 178, 180. 
 Burro ughes v. Browne, 192, 655. 
 Burroughs v. M'Creight, 381, 386, 387, 
 
 402. 
 Burroughs v. Oaldey, 432, 434, 436, 10S9, 
 
 1097. 
 BuiTowes v. Gore, 381, 397. 
 
 — V. Lock, 99, 103, 451, 1080, 
 1127.
 
 TABLE OF CASES. 
 
 xliii 
 
 Burt, In re, 589. 
 
 — r. Haslett, .^35, 53G. 
 
 — V. Vincent, 1016. 
 Burting v. Stonard, 598. 
 Burton V. Neville, 409. 
 
 — V. Todd, 649, 1126. 
 Bury V. Oppenheim, 753. 
 
 — V. Philpot, 336, 337. 
 Bush, In re, 723. 
 Bushell V. BusheU, 681. 
 Bustard's case, 286. 
 Butcher v. Stapely, 859. 
 
 Bute's, Marquis of, will, la re, 584. 
 Butler V. Ablethwaite, 1016. 
 
 — V. Borton, 68. 
 
 — r. Butler, 817. 
 
 — V. Lord Portarlino-ton, 193,864,868. 
 
 — V. Powis, 1056, f061, 1065. 
 
 — V. Swinerton, 784. 
 Butler's will. In re, 669, 713. 
 Butt V. Mouteaux, 1046. 
 Buttanshaw r. Martin, 581, 688. 
 Butterfield, In re, 718. 
 
 — V. Heath, 892, 1139. 
 Buttemer v. Hayes, 200. 
 Buxton, Ex parte, 83. 
 
 — v. Buxton, 58. 
 
 — r. Lister, 102, 108, 1040, 1049, 
 1082, 1124, 1127. 
 
 Byam v. Byam, 609. 
 Bycroft v. Sibel, 411. 
 Byron, In re, 712, 715, 720. 
 
 — V. Cooper, 377. 
 
 Caballero r. Henty, 96, 452, 866, 1072, 
 
 1077. 
 Caddick v. Skidmore, 197, 201, 209, 220, 
 
 929, 1022. 
 
 — /» re, 1180. 
 Caddick's Settlements, In re, 672. 
 Cadle V. Moody, 813. 
 Cadman r. Horner, 1053, 1080. 
 Cadogan v. Lord Essex, 87. 
 Caines r. Smith, 959. 
 Calcraft v. Ptoebuck, 434, 437,' 627, 052, 
 
 1078. 
 Caldecott v. C'aldecott, 59. 
 Caledonian By. Co. v. Lord Belhaven, 369. 
 — V. Mayor of Helens- 
 
 burgh, 57. 
 Caledonian By. Co. v. Sprot, 369, 371, 
 
 533, 537. 
 Callagan v. Callagan, 1046. 
 Calley r. Richards, 881, 882, 883. 
 Calmady v. Howe, 323. 
 Calton V. Wyld, 770, 771. 
 Calverly r. Williams, 113, 807, 1038, 1053, 
 
 1126. 
 Calvert v. Godfrey, 2, 1118, 1140, 1209, 
 
 1211, 1218, 1223. 
 Calvert v. Seabright, 784, 787. 
 Cambridge, Corporation of. Ex imrte, 66 3 
 Camden v. Benson, 1210. 
 Camfield v. Gilbert, 949, 976. 
 Camoy's Barony, 349. 
 Campanari v. Woodburn, 138. 
 
 Campbell v. Campbell, 677. 
 
 — V. Flcining, 96, 105. 
 
 — v. Hay, 122.^^. 
 
 — r. Home, 1104. 
 
 — r. Hooper, 6. 
 
 — r. Ingilby, 893, 1046. 
 
 — V. Ingleby, 3. 
 
 — V. Lewis, 779 
 
 — %\ Moxhay, 1192. 
 
 — V. Walker, 44, 48, 49, 1196. 
 
 — r. Wilson, 362. 
 Campion v. Cotton, 939. 
 Cane •;•. Lord Allen, 35, 806. 
 Canham v. Berry, 962, 970. 
 
 — r. Paist, 776. 
 Cann's estate, hi re, 663, 669. 
 
 — V. Cann, 1099, 1141, 1225. 
 Cannan v. Denew, 846. 
 
 — i: S. E. By. Co., 871. 
 Cannoch r. Jauncey, 411. 
 Cannon r. Johnson, 1189. 
 
 — V. Kelly, 137. 
 
 — r. Rimington, 389. 
 Cant's estate, In re, 718. 
 
 Canterbury, the Archbishop of, In re, 
 
 666, 670, 716. 
 Capel V. Girdler, 270. 
 Capper's case, 1044. 
 Capper r. Spottiswoode, 734. 
 
 — r. Terrington, 676. 
 
 Cajips V. Norwich & Spalding Rv. Co., 
 
 1091. 
 Captevielle, //; re, 278. 
 Card V. Jaffray, 231, 234. 
 Carew, //; re, 723. 
 
 Carew's estate, In re, 103, 1202, 1207. 
 Carleton r. Iveighton, 810. 
 Carington, Lord, v. Wycombe Ry. Co., 
 
 761, 762, 763. 
 Carlisle r. Silloth Ry. Co., In re, 720. 
 
 — r. Towns, 690. 
 
 — V. Whaley, 824. 
 Carlon v. Farlar, 475. . 
 Carlyon v. Lovering, 366. 
 Carue v. Michell, 1063. 
 Carolan r. Brabazon, 1045, 1085. 
 Carpenter, In re, 589, 590. 
 
 — V. Blandford, 425. 
 
 — v. BuUer, 810. 
 
 — V. Herriot, 49. 
 
 — V. Parker, 784, 
 Carpmail r. Powis, 746, 881, 882. 
 
 — v. Profitt, 715. 
 Carr, Ex parte, 574. 
 
 — V. Foster, 375. 
 
 -- V. Jackson, 185, 964. 
 Carr r. Roberts, 544, 696. 
 Carrington r. Pell, 660. 
 
 — V. Roots, 201, 202. 
 Carrodus '■. Sharp, 628, 1131 
 Carter r. Carter, 517, 530, 734, 824, 826, 
 
 829, 831, 870. 
 Carter v. Dean of Elj', 419. 
 
 — V. Hind, 890. 
 
 — V. Home, 927. 
 
 — V. Palmer, 32, 36, 44,
 
 xliv 
 
 TABLE OF CASES. 
 
 Carter v. Sanders, 602, G14, 0-23. 
 
 — r. ^Villiams, 453, 767, 768, 769, 
 871. 
 
 Cathrow v. Eade, 298. 
 
 Carven, In re, 726. 
 
 Carver r. Hichards, 1104. 
 
 Gary v. Cary, 32. 
 
 Casamajor v. Strode, 157, 327, 306, 1077, 
 
 1138, 1212. 
 Casborne v. Barsliam, 20. 
 Case V. James, 825. 
 Casey v. O'Shaunessy, 348. 
 Cass V. Rudele, 249. 
 — I'. Waterhouse, 216. 807. 
 Casson r. Roberts, 192, 962. 
 Castle r. Fox, 209. 
 Castle r. Sworder, 202. 
 
 — r. Wilkinson, 999, 1069, 1071. 
 Cathrow r. Eade, 270, 839. 
 
 Catlin V. Bell, 678. 
 
 Caton v. Caton, 233, 234, 890, 1028. 
 
 Caton V. Lord Pembroke, 805, 864. 
 
 — V. Keeves, 1192. 
 
 Catt V. Toiirle, 541, 767, 768, 1049. 
 Cattell V. Corrall, 115, 150, 285, 288, 
 
 687. 
 Cattley r. Arnold, 813, 920. 
 Cattlin, In re, 724, 725. 
 Catton r. ^Yyld, 983. 
 Causton r. Macklew, 458, 1140. 
 Cavan, Lady, v. Pulteney, 785. 
 Cavander v. Bulteel, 451, 453. 
 Cave V. Cork, 1008. 
 Cawley r. Furnell, 386. 
 Ca\rthorne, In re, 30. 
 Cazeneau's Legacy, In re, 14. 
 Central Ey. Co. of Venezuela r. Kisch, 
 
 106. 
 Chadwick, Ex parte, 939. 
 
 — V. Broadwood, 388. 
 
 — r. Chadwick, 883. 
 
 — V. Holt, 466. 
 
 — V. Maden, 1007, 1008, 1011. 
 
 — V. Marsden, 367. 
 
 — r. Turner, 682, 857. 
 Chalmer v. Bradley, 48, 49, 322. 
 Chamberlain r. Chamberlain, 671, 1198. 
 
 — V. Lee, 1058, 1112. 
 
 Chambers' Settled Estates, In re, 70, 
 
 1172. 
 Chambers v. Betty, 35, 1087. 
 V. Griffiths, 956. 
 
 — r. Howell, 602. 
 Champeruowne r. Brooke, 630. 
 Champion c. Plummcr, 217. 
 
 — V. Eigby, 48. 
 Chandos, Duke of, r. Talbot, 133. 
 
 — Marquis of, v. Commissioners of 
 Eevenue, 696. 
 Chant V. Brown, 881, 882. 
 Chaplain v. Southgate, 783. 
 Chapman r. Bradley, 893. 
 
 — r. Emery, 889. 
 
 — V. Fowler, 1205. 
 
 — V. Speller, 806. 
 Chappell I'. Eees, 398. 
 
 Charingbduld v. Curtis, 986. 
 
 Charitable Donations Commissioners of, 
 
 v. Wybrants, 380, 382, 839, 904. 
 Charity Schools of St. Dunstan, In re, 
 
 721. 
 Charlesworth v. Jennings, 799. 
 Charlton v. Coombes, 882, 883. 
 
 — r. Durham, 607, 657. 
 
 — r. Low, 831. 
 Charter v. Trevelyan, 34, 48. 
 Chasemore r. Eichards, 365. 
 Chawner's will. In re, 78, 1139. 
 Cheale v. Kemvard, 986, 988. 
 Cheese r. Cheese, 1118, 1218. 
 Cheetham r. Sturtevant, 633, 1217. 
 Cherrington r. Abney, 358. 
 Cherry r. Needham, 198. 
 Cheshunt College, In re, 669. 
 Cheslyn r. Dalby, 397. 
 Chesshyre r. Biss, 917. 
 
 Chester v. Gorges, 1205. 
 
 — V. Piatt, 1000. 
 Chesterfield v. Janssen, 105. 
 Chesterman r. Mann, 822. 
 Cheval v. ^Nichols, 853. 
 Cheveley v. Fuller, 228. 
 Chichester v. Donegal, 411. 
 Chichester, Lord, r Hall, 118, 377, 404. 
 Child V. Douglas, 765, 768, 774. 
 
 — V. Lord Abingdon, 630. 
 Childers v. Childers, 937. 
 
 — V. Eardley, 522. 
 Chinnery v. Evans, 393. 
 
 Chinnock v. Marchioness of Ely, 228, 
 
 229, 230, 983, 1014. 
 Chinnock v. Tainsbm-y, 982. 
 Cholmely's case, 890. 
 Cholmondely r. Paxton, 6S, 1184. 
 
 — Marquis of, r. Clinton, 240. 
 Chorlton r. Craven, 1107. 
 
 Christ's Hospital, Ex parte, 673, 687. 
 
 — V. Bugdin, 937. 
 
 — V. Governors of, la re, 
 713, 720. 
 
 Christ Church, Ex parte, 720. 
 
 — Dean, &c., of. Ex parte, 666. 
 Christian v. Chambers, 1208. 
 
 — V. Devei-eux, 395. 
 Christian v. Horwood, 968. 
 Christie v. Commissioners of I. Eevemie, 
 
 697. 
 Christy r. Courtenay, 905, 932, 934, 936. 
 Church, In re, 13. 
 
 — V. Browii, 544. 
 
 — f. Legeyt, 973. 
 Churchman v. Ireland, 267. 
 Clack r. Holland, 765. 
 Clagett r. Pliillips, 882. 
 Clanricarde r. Henninc;', 40, 759. 
 Clapham t\ ShiUito, lu2, 137, 1055. 
 Clare r. Earl of Bedford, 450, 841. 
 
 — v. Lamb, 777, 806. 
 
 — V. Maynard, 951. 
 
 — r. AYood, 470. 
 
 Clare Hall i: Harding, 248, 843, 911. 
 Clark, In re, 1173.
 
 TABLE OF CASES. 
 
 xlv 
 
 Clark r. Burgh, 1001. 
 
 — V. Maipas, 749. 
 
 — V. Seymour 63, 70. 
 
 — V. Upton, 970. 
 Clarke, In re, 670. 
 
 — V. Clark, 359, 983. 
 
 — r. Cucktield Union, 23G. 
 
 — r. Elliott, 1090. 
 
 — V. Faux, 145. 
 
 — V. Franklin, 543. 
 
 — r. Grant, 1035, 1040. 
 
 — r. King, 660, 95<). 
 
 — V. May, 502, 503, 526. 
 
 — r. Maynard, 337. 
 
 — r. Moore, 1086. 
 
 — V. Keilly, 1025. 
 
 — r. Royal Panopticon Co., 78, 1139, 
 
 — V. Royle, 735, 1139. 
 
 — r. Willott, 999. 
 
 — V. Wilson, 1090. 
 
 — V. Wright, 895, 896, 899. 
 Clark on v. Edge, 1061. 
 
 — V. Woodhonse, 297, 334. 
 Clavering's case, 1031. 
 
 Clay V. Rufford, 50, 79, 1039, 1097, 1123. 
 
 — r. Sharpe, 512, 1005. 
 
 — V. Thackray, 374. 
 Claydon v. Green, 419. 
 
 — V Ashdown, 1044. 
 
 ■ — V. Burtenshaw, 709. 
 Claypole, Eector of. In re, 664. 
 Clayton r. Corby, 372, 373, 374, 375. 
 
 — r. Gregson, 963. 
 
 — V. Illingworth, 992. 
 
 — r. Earl Wilton, 895, 896, 897, 899. 
 Cleave v. Moore, 178. 
 
 Clegg V. Clegg, 926. 
 
 — r. Fishwack, 927. 
 Clements v. Hall, 925. 
 
 — r. Willes, 453, 770. 
 Clerk r. Nettleship, 890. 
 
 _ V. Wright, 220, 1026. 
 Clericetti, In re, 576. 
 Clerk V. Lawrie, 980. 
 Clermont v. Tasburgh, 1053, 1072. 
 Cleveland's, Duke of, Ilarte Estates, In 
 
 re, 668, 719. 
 Clifford r. Turrell, 759, 901, 966, 987, 988. 
 
 — V. Wicks, 293. 
 C;iifton r. Walmsley, 964. 
 Climie v. Wood, 536, 567. 
 
 Clinan?'. Cooke. 230, 225, 226, 1024, 1026, 
 
 1031, 1033, 1037. 
 Clinton, In re, 670. 
 
 — r. Bernard, 1220. 
 
 Clivc V. Beaumont, 228, 290, 432, 1013, 
 1114. 
 
 — V. Carew, 50. 
 
 Clonmert v. Whittaker, 1107, 1138. 
 Close V. Phipps, 71. 
 
 — V. Wilberforce, 272, 558, 559. 
 Closmadeuc v. Carrel, 238, 326. 
 Clough's estate. In re, 1175, 1181. 
 Clowes V. Beck, 1225. 
 
 — V. Higginson, 111, 1035, 1038, 
 1040, 1053, 1116. 
 
 Clulow's estate, In re, 813. 
 Coates V. Collins, 782. 
 Cobb r. Alid Wales Ry. Co., 626. 
 Cobbett V. Brock, 759. 
 Cobham, Ex parte, 579. 
 Cochrane v. Willis, 806, 1053. 
 
 — V. Robinson, 558, 1218. 
 Cockburne v. Wright, 459. 
 Cockell V. Bacon, 71. 
 
 — V. Taylor, 210, 752, 833, 1083, 
 1081. 
 Cocker r. Cowper, 199. 
 Cockerell v. Cholmelcy, 49, OS. 
 
 — r. Dickens, 1014. 
 Cocking V. Ward, 200, 201, 205. 
 Cockman v. Farrar, 335. 
 Coclcran v. Irlani, 178. 
 Cockroft V. Sutchffe, 329, 876. 
 Cocks V. Manners, 29. 
 Codrington r. Lindsay, 893. 
 Coffin V. Cooper, 1058, 1112. 
 Cohen v. Wilkinson, 57. 
 
 Colby V. Gadsden, 101, 1086, 1083. 
 Colclough r. Bolger, 1224. 
 
 — V. Sterum, 1224, 1225. 
 Coldcotr. Hill, 179. 
 Coldwell V. Gregory, 849. 
 
 Cole r. Gibbons, 105, 751, 759. 
 
 — V. Miles, 598. 
 
 — r. Muddle, 838. 
 
 — V. Scott, 269. 
 
 — V. SeweU, 62, 1219. 
 
 — r. West London Railway Co., 212. 
 Coleby v. Coleby, 818. 
 
 Colegrave v. Dias Santos, 132. 
 Coleman v. Foster, 920. 
 
 — V. liiches, 93, 970. 
 
 — r. Upcot. 217, 1056. 
 Coles V. Bristo'vve, 292. 
 
 — V. Coles, 54, 95, 845. 
 
 — T. Kinder, 787. 
 
 — V. Pilkington, 1027. 
 
 — r. Sims, 767, 768, 1061. 
 
 — V. Trecothick, 41, 43, 189, 208, 221 
 
 250, 748, 749, lOSO, 1032. 
 Collard V. Roe, 516, 543, 628. 
 
 — r. Sampson, 1140. 
 Collen r. Gardner, 183, 189. 
 
 — r. Wright, 947. 
 CoUett V. Woollaston, 1081. 
 
 — r. Collett, 1173. 
 
 -- r. Hover, 1005, 1009. 
 
 — V. Morrison, 808. 
 
 — V. Thompson, 973. 
 Collier V. Jenkins, 266, 1073. 
 
 — r. McBean, 1099, 1103, 1138. 
 
 — v. Mason, 624, 1084. 
 Collinge v. Heywood, 696. 
 CoUingwood v. Row, 257, 26-3. 
 
 — In re, 589, 590. 
 
 Collin's Chaiity, In re, 670. 
 
 — T. Archer, 832. 
 
 Collins r. Collhis, 222, 224, 733, 1225. 
 
 — V. Greaves, 1099. 
 
 — V. Maule, 313. 
 r. Plumb, 7 07.
 
 xlvi 
 
 TABLE OF CASES. 
 
 Collins V. Shirloy, 1135. 
 
 — r. Stuteley, 984. 
 Collinson v. Collinson, 934. 
 
 — In re, 935. 
 
 — V. Lister, 602, 611. 
 Colmore v. Tindal, 1138. 
 Colpoys V. Colpoys, 963, 964. 
 Colquhoun, In re, 724. 
 
 Colton V. Wilson, 321, 1008, 1009. 
 Columbine v. Chicliester, 1014. 
 
 — r. PenhaU, 899, 9U5. 
 Colyer v. Clav, 1053. 
 
 — r. Finch, G03, 618, 619, 731, 831, 
 833, 844. 
 
 Comer v. WaUdoy, 644. 
 
 Commins v. Scott, 218, 964. 
 
 Comj^ton r. Eichardo, 122. 
 
 Conning, Ex parte, 568. 
 
 Consolidated Investment, &c.,Co. r.Eiley, 
 
 839. 
 Const v. Barr, 309. 
 Center r. Macpherson, 249. 
 Conybeare i\ New Bruus\\'iok, Sec, K.y. 
 
 Co., 104, 799, 802. 
 Good V. Cood, 734, 987, 1030. 
 
 — V. Pollard, 739. 
 
 Cooday v. Colchester Ey. Co., 190. 
 Cook's settled estates, //) re, 1178. 
 Cook V. Dawson, 53, 78, 016, 619. 
 Cook V. Field, 240. 
 
 — V. Waugh, 92. 
 Cooke v. Brown, 1215. 
 
 — V. Burtchaell, 750, 751, 753. 
 
 — V. Clayworth, 1044. 
 
 — V. Cooke, 1007. 
 
 — r. Crawford, 606. 
 
 — V. Deleay, 260, 1215. 
 
 — V. Farrand, 67. 
 -- r. Founds, 789. 
 
 — V. Lamotte, 20. 
 
 — r. Solton, 323. 
 
 Cooke V. Tombs, 205, 208, 216, 1026. 
 
 — r. Wilson, 946. 
 
 — r. Wilton, 851. 
 Cookell V. Taylor, 802. 
 Cookson V. Cookson, 208. 
 
 — V. Lee, 39, 45, 69, 878. 
 Coombe V. Mansfield, 854. 
 Coombes v. Brookes, 588. 
 Coope r. CressweU, 390, 404, 796. 
 Cooper, Ex parte, 254, 575. 
 
 — V. Bockell, 416. 
 
 — V. Cartwright, 502, 504, 722. 
 
 — r. Denne, 1138. 
 
 _ V. Emery, 142, 293, 322, 331, 554, 
 556, 676, 677. 
 
 — V. Ewart, 723. 
 
 — r. Hood, 220, 221, 986, 1033. 
 
 — V. Jarman 266, 988. 
 
 — V. Jones, 586. 
 
 — r. Norfolk Ey. Co. 692. 
 
 — V. Phibbs, 1039. 
 
 — V. Smith, 216. 
 
 — r. Stephenson, 455, 498. 
 
 — V. Trewby, 206, 277, 593. 
 Coopers' trusts, la re, 610. 
 
 Cooper V. Wormald, 1023. 
 Coort, Ex parte, 36. 
 Coote V. Coote, 1227. 
 
 — V. Lowndes, 820. 
 
 Cooth V. Jackson, 222, 1034, 1047. 
 Cope V. Cope, 817. 
 
 — V. Parry, 1007. 
 
 — V. Thames Haven Co., 183, 235. 
 Copley, Ex 'parte, 714. 
 
 Copper Mining Co., v. Beach, 550, 551. 
 Copper Miners, Governor of, v. Fox, 236. 
 Coiipin r. Coppin, 264, 730. 
 
 — r. Fernyhough, 291, 864. 
 
 — r. Gray, 377. 
 Coquet V. Gibson, 936, 988. 
 Corbett /ft re, 1224. 
 
 — V. Brown, 103. 
 Corbie v. Byng, 269. 
 
 Corder v. Morgan, 55, 512, 1005, 1126. 
 Cordingley r. Cheeseborough, 1S9, 140, 
 
 141, 155, 653, 1131. 
 Cork and Bandon Ey. Co. v. Cazenove, 26. 
 Cork, Lord, v. Eussell, 480, 511. 
 Cormick v. Trapand, 892. 
 Cornfoot v. Fowke, 93, 802, 970. 
 Cornick r. Pearce, 52. 
 Cornish v. Clark, 905. 
 
 — V. Stubbs, 199, 920. 
 Cornthwaite v. Frith, 901. 
 Corjius Christi CoU. Oxford, 720. 
 CorraU v. Cattell, 150.^ 
 Corrance v. Corrance, 760. 
 
 Corrigal v. London & Bl. Ej'. Co., 626. 
 
 Corsellis r. Patman, 1192. 
 
 Corter t'. Cartwright, 603, 617, 619, 620. 
 
 Cort V. Ambergate, &:c., Ey. Co. 958. 
 
 Cory r. Thames Shipb. Co., 794, 952. 
 
 Coslake v. Till, 418, 420, 991. 
 
 Cosens v. The Bognor Ey. Co., 741, 1090. 
 
 Cosser v. CoUinge, 868. 
 
 Costigan v. Hastier, 512, 1050, 1063. 
 
 Cothay v. Sydenham, 875. 
 
 Cother r. Midland Ey. Co., 210. 
 
 Cotman r. Orton, 659. 
 
 Cottam V. E. C. Ey. Co., 777. 
 
 Cotter V. Layer, 256. 
 
 — V. Metrop. Ey. Co., 979. 
 Cotterell v. Hampson, 599. 
 Cotterell v. Homer, 895. 
 Cottle V. Warrington, 473. 
 Cotton, Ex parte, 536. 
 
 — r. Scudamore, 143, 676. 
 Cottrell V. Cottrell, 545, 553. 
 
 — V. Hughes, 324, 508. 
 
 — V. Watkins, 157, 298. 
 Coulson r. AlUson, 20, 893. 
 Coulton r. Ambler, 203. 
 Counter r. Macpherson, 1046, 1088. 
 Courteuay v. Wright, 758. 
 Cousens v. Harris, 352. 
 Coussmaker v. SeweU, 297. 
 Coutts f. Acworth, 904. 
 Coventry r. Coventry, 266. 
 
 — ■ V. Gladstone, 730. 
 Coventry v. L. B. & S. C. Ey. Co., 763. 
 Coverly, In re, 574.
 
 TABLE OF CASES, 
 
 xlvii 
 
 Coverly v. Burrcll, 117, 1073. 
 Cowbridge Ry. Co., In re, ilT. 
 Cowdry r. Day, 582. 
 Co well V. Chambers, 351. 
 
 — V. Watts, 929. 
 Cowen V. Phillips, 198. 
 
 Cowgill V. Lord Oxniantown, 1112, 1140. 
 
 — V. Rhodes, IOCS. 
 Cowles r. Gale, 419. 
 
 Cowley V. Watts, 115, 219, 220, 228, 
 
 230. 
 Co\vpe V. Bakewell, 640. 
 Cox V. Allingham, 320. 
 
 — V. Barnard, 900. 
 
 — r. Bennett, 270, 
 
 — V. Bishop, 272, 559. 
 
 — '('. Chamberlain, 11 20. 
 
 — r. Coventon, 118, 87*3. 
 
 — r. Co.\, 609, 613, 602. 
 
 — V. Dolman, 384, 394. 
 • — V. King, 797. 
 
 — V. Middleton, 115, 220, 994, 1053. 
 
 — V. Toole, 1194. 
 Coxhead's case, 493. 
 Cogens V. Bognor E. Co., 447. 
 Crabb v. Crabb, 932, 933, 934. 
 Crabtree's settled Estates, In re, 1170, 
 
 1181. 
 Crabtree, v. Poole, 246. 
 Craddockv. Piper, 510, 1140, 1209, 1219. 
 Cragg r. Holme, 1044. 
 Craig, £x parte, 1020, 1021. 
 
 — V. Watson, 97. 
 Cramer v. Moore, 895. 
 Crane r. Batten, 243, 814, 
 Crane's estate, In lie, 719. 
 Cranston v. Clarke, 169. 
 Craven, Ex parte, 669. 
 Crawford, In re, 575. 
 Crayford r. Crayford, 790, 
 Creagh v. Blood, 6, 322. 
 Crease i: Barrett, 348. 
 Credland v. Potter 6S0. 
 Creed, In re, 341. 
 CresBwell r. Haines, 709, 1129. 
 Creswick r. Harrison, 1194. 
 Crewe v. Dickin, 607, 608, 1138. 
 Cripps V. Jee, 931, 932. 
 
 — V. Reade, 591, 777. 
 Crispr. Platel, 411. 
 Crober, I'Jx parte, 721. 
 Crockford r. xVlexander, 251, 1094. 
 Croft V. Graham, 757, 
 
 — V. Lumley, 482. 
 
 Crofts V. MidtUeton, 9,577, 810, 842, 999. 
 
 Croly r. Callagan, 730. 
 
 Cromack v. Heathcote, 881. 
 
 Cronin v. Murphy, 1129. 
 
 Crook V. Corporation of Seaford, 236, 
 
 /1080, 1032. 
 Croome r. Lediard, 1041, 1052, 1131. 
 Crop.r. Norton, 1063. 
 Cropper v. Cook, 940. 
 Crosby v. Percy, 312. 
 
 — r. Wadsworth, 198, 201, 202. 
 Cross V. Keene, 134, 
 
 Ctosr v. Laurence, 134, 154. 
 
 Cross's estate. In re, 258. 
 
 Crosse v. Duke of Beaufort, G28, 049. 
 
 — r. Revg. Socy., 413, 582, 843, 1215. 
 Crossfield t: Morrison, 790. 
 
 Crosskey v. Mills, 180. 
 Crossley v. Elworthy, 906, 90S. 
 
 — V. Lightowler, 366. 
 
 — V. Maycock, 229, 231. 
 Crouch r. Hooper, 347. 
 Croughton r. Blake, 312. 
 Crowder r. Austin, 194. 
 Crowe V. BaUard, 50. 
 Crowe's Mortgage, In re, 589. 
 CroAvther V. Crowther, 407, 913. 
 
 — V. Solomons, 238. 
 Cruikshank v. Duffin, 78, 1109. 
 Crump r. Lambert, 921. 
 
 Cruse r. XoweU, 56, 109, 146, 1140, 
 
 — r. Paine, 292. 
 Cnitchley v. Jerniingham, 1090. 
 Crystal Palace Rally. Co., In re, C43. 
 Cud r. Rutter, 985, 986. 
 
 Cuddon, Ex parte, 37, 66, 83. 
 
 — V. Tite, 247, 249, 1014, 1217. 
 Cuff V. Hall, 58. 
 
 Culley I. Doe d. Taylerson, 387. 
 Cull wick V. Swindell, 536, 567. 
 Culpepper r. Aston or Austin, G04. 
 Cumberland v. Bowes, 222. 
 Gumming, In re, 589, 590. 
 
 — V. Ince, 1054. 
 Cunningham r. William.s. 1226. 
 Curling v. Austin, 115, 154, 1114. 
 
 — V. Flight, 291, 1095, 1097, 1110, 
 1111. 
 
 Currant v. Jago, 932. 
 Curre v. Bowyer, 261. 
 Currie, In re, 724, 725. 
 
 — V. Anderson, 202. 
 
 — r. Nind, 890, 1139. 
 
 Cuniers Co. v. Corbett, 357, 358, SCO, 537, 
 
 540, 983. 
 Curson v. Belworthy, 747, 1015. 
 Curtis's Case, 1044. 
 Curtis r. Fulbrook, 52. 
 
 -- r. Marq. of Buckingham, 1094. 
 
 ■ — r. Spitty, 765. 
 Gust r. Middleton, 589. 
 Custace v. Bradshaw, 926. 
 Cuthbert v. Baker, 1078. 
 
 — V. Purrier, 340, 342. 
 Cuthbertson r. Irving, 888. 
 Cutler V. Simons, 1090. 
 Cutts, Exj)arte, 197, 985, 1034. 
 
 — V. Thody, 161, 424, 996, 1009. 
 
 Dacre r. Patrickson, 819. 
 Dadson, r. East Kent Ey. Co.. 212. 
 Dady r. Hartridge, 622. 
 Daglish, Ex parte, 568. 
 Dakin v. Cope, 634, 1126. 
 
 — r. L. &N. W. Ry. Co., 213, 442. 
 Dakin r. Whimper, 889, 999, 1005, 1006. 
 
 1046. 
 Dall^y V. Pullen, 1057, 1073, 1113, 1196.
 
 xlviii 
 
 TABLE OF CASES. 
 
 Dale V. Hamilton, 184, 925,927,929, 1023, 
 1031, 1196. 
 
 — V. Lister, 1068, 1070. 
 Daly, Ex jtarte, 575. 
 
 — r. Daly, 1223. 
 Daly r. Nalder, 256. 
 
 Darner r. Earl of Portarlington, 411, 1133. 
 Damerell v. Prothero, 118. 
 Dance i\ Goldingham, 172, 17-1, 1047. 
 Daniel v. Adams, 65, 1000. 
 
 — r. Anderson, 156. 
 
 — I:i re, 508. 
 
 — V. North, 362. 
 
 Daniels v. Davison, 252, 436, 451, 866, 
 
 996, 1009. 
 Danks, Ex parte, 36. 
 Darbey v. Whittaker, 222, 223, 983, 986, 
 
 991, 1061. 
 Darbishire v. Home, 11, 50. 
 Darby t: Darby, 925, 927. 
 Dare r. Tucker, 142, 554, 676, 1222. 
 Dare Valley Ky. Co., In re, 625, 626. 
 Darkin r. Darkin, 940. 
 
 — V. Marye, 1207. 
 Darling, In re, 575. 
 
 Darlinirton v. Hamilton, 96, 119, 120,138, 
 14X 150, 152, 874, 1076, 1113. 
 
 Damley, Earl of v. L. C. & D. Ey. Co., 
 1085, 1039. 
 
 Dar\dll r. Perry, 905, 908. 
 
 — V. Eoper, 69, 373. 
 Darwin v. Upton, 325. 
 Divshwood, Ex parte, 717. 
 Davenport r. Bishopp, 545, 893. 
 
 — r. Eylands, 770, 983. 
 Davey v. Durrant, 67, 72, 73, 74, 79, 8i. 
 
 — V. Miller, 12, 21. 
 Davidson v. Cooper, 236. 
 
 — V. Gardner, 43, 999. 
 Davies, In re, 583. 
 
 — V. Cooper, 97, 107, 250, 748, 751, 
 
 1082. 
 
 — r. Davies, 860. 
 
 — V. Hodgson, 50 
 
 — r. Lowndes, 349, 350. 
 
 — V. Otty, 937, 1035. 
 
 — V. Sear, 587, 538, 865, 1079. 
 
 — V. Stephens, 345. 
 
 — V. Thomas, 824, 831, 864. 
 
 — V. ToUemache, 787, 788, 809, 840. 
 
 — v. Vernon, 731. 
 
 — V. Westcomb, 68. 
 
 — V. Whitmore, 1135. 
 
 — V. WiUiams, 371, 375. 
 Davis V. Barrett, 917. 
 
 — V. Lord Dysart, 410, 411. 
 
 — V. Haycock, 987. 
 
 — r. Jones, 220, 967. 
 
 — V. Xisbett, 976. 
 
 — V. Shepherd, 531, 652. 
 
 — and South Staffordshire Ry. Co., 
 
 In re, 625. 
 
 — r. Earl of Strathmore,- 459, 853, 
 
 858. 
 
 — r. SjTnonds, 1124. 
 
 — r. Thomas, 822. 
 
 Davis V. ToUemache, 544, 998. 
 
 — V. Turvey, 2, 1187. 
 Davis's estate. In re, 664. 
 Davy V. Barber, 630. 
 
 — V. Malt wood, 575. 
 
 Dawes *•. Betts, 110, 119, 1110, 1111, 1112. 
 
 — r. Hawkins, 3(32. 
 
 — V. King, 101. 
 
 Dawson r. Brinckman, 134, 154, 431, 
 1048. 
 
 — r. Dawson. 208, 1207. 
 — - V. Ellis, 997. 
 
 — V. Massey, 35. 
 
 — r. Paver, 871. 
 
 — r. Prince, 824, 871. 
 
 — V. Yates, 161, 1065. 
 Day r. Croft, 1218. 
 
 — V. Day, 99, 848, 850, 1220, 
 
 — r. Luhke, 419. 
 
 — i: Newman, 1082. 
 
 — r. WeUs, 182, 1053. 
 Dayrell v. Hoare, 70. 
 Deacon v. Colqulioun, 939. 
 
 — V. Smith, 941, 942, 943. 
 Deale r. Hall, 99. 
 
 Dean r. Allen, 1218. 
 
 — v. Thwaite, 382. 
 Deane v. Eastron, 1080, 
 Dearden, In re, 725. 
 Dearman v. 'Wjche, 395. 
 De Beau voir, In re, 715. 
 
 — r. Owen, 377, 404. 
 
 De Begnis v. Ai-mistead, 970, 1045. 
 De Beil v. Thomson, 188, 1027. 
 De Bernai'dy r. Harding, 945, 957, 
 Debrow r. Bone, 901. 
 De Hoghton v. Money, 240, 1006, 
 Delabere r. Norwood, 1005. 
 De Lancey, In re, 278. 
 Delarne v. Church, 322. 
 Dellerr. Prickett, 179. 
 
 — r. Simonds 433. 
 Delmer r. McCabe, 789. 
 Delves V. Delves, 1206. 
 
 De Montmorency v. Devereux, 49, 105. 
 Dempsey v. Dempsey, 1212. 
 Dendy, Ex parte, 1003. 
 
 — V. Simpson, 3S5, 531, 652, 
 Denew v. Daverell, 181. 
 Dening r. Ware, 900, 
 
 Denn r. Diamond, 699. 
 Denne r. Light, 115, 1033. 
 Dennett r. Attherton, 783, 785. 
 Denning v. Henderson, 127, 637, 1212. 
 Denny, Ex parte, 579. 
 
 — r. Hancock, 114, 121, 137, 429, 
 
 430, 1038, 1053, 1055. 
 Densem r. Elsworthy, 1225. 
 Dent r. Auction Mart. Co., 359. 
 
 — v. Bennett, 20. 
 
 — V. Clayton, 522. 
 
 — r. Dent, 88 
 
 — r.'Eob, 354 
 Denton r. Davies, 940 
 
 — r. Donner, 39, 42, 43, 747 
 Denys r. Shuckburgh, 388 

 
 TABLE OF CASES. 
 
 xlix 
 
 De Vaux r. Steinkeller, 104. 
 Devaynes v. Robinson, 58, 883. 
 Deverell v. Lord Bolton, 309, 429, 1127. 
 Devey v. Devey, 753. 
 . — V. Thornton. 1104. 
 De Porquet v. Page, 216. 
 Depree ?'. Bedborougli, 1226. 
 Derbyshire & S. W. Ry. Co. v. Bainbridge, 
 
 464, 474. 
 Desborough v. Harris, 623. 
 De Tabley's Settled Estates, 1175, 1182. 
 Devenish v. Brown, 14. 
 De Visme v. De Visme, 127, 128, 623, 637, 
 
 638, 639, 1212. 
 Devon, Duke of, v. Eglin, 1031. 
 Devoy v. Devoy, 924, 934. 
 Dewar r. Spar, 129. 
 Dewell r. Tuflfnel, 1207, 1208. 
 Dewhirst v. Wrigley, 325, 361. 
 D'Eyncourt v. Gregory, 536, 537. 
 Dicconson v. Talbot, 42, 1139. 
 Dick V. Donald, 145. 
 Dickens v. Unthank, 577. 
 Dickenson I'. Dickenson, 613. 
 
 — V. Shaw, 933. 
 Dicker v. Jackson, 960. 
 Dickinson, In re, 589. 
 
 — r. Burrell 240. 
 
 — V. G. Jn. Ey. Co., 365, 774. 
 
 — V. Heron, 635, 1126. 
 
 — V. Teasdale, 381, 396, 404. 
 Dickson, In re, 724. 
 
 Dietrichson v. Cadburn, 1046. 
 
 Dicgle V. Lond. & Blackwall Ry. Co., 
 
 183, 235. 
 Dike V. Ricks, 604. 
 Dilkes V. Broadmead, 796. 
 Dillon V. Cruise, 381, 394. 
 Dimrnock v. Hallett, 138, 1197. 
 Dimsdale v. Dimsdale, 20, 753. 
 Dinham v. Bradford, 222, 224. 
 Dinn v. Grant, 440. 
 Dinning v. Henderson, 714, 1192. 
 Diplock V. Hammond, 179, 237. 
 Divers, Li re, 673, 717. 
 Dixon, In re, 573. 
 
 — V. Arnold, 260. 
 
 — V. Astley, 434, 437, 1089, 1090. 
 
 -^ V. Gayfere, 403, 562, 733, 736, 737. 
 
 — r. Jackson, 663, 669. 
 
 — V. Pyner, 1196. 
 
 — V. Wilkinson, 1223, 1224. 
 Dobelli;. Hutchinson, 139, 225, 974. 
 
 — V. Stevens, 102, 804. 
 Dobson V. Carpenter, 1218. 
 
 — V. Land, 36, 38, 676. 
 Dodd V. Birchall, 363. 
 
 — V. Salisbury & Yeovil Ry. Co., 214. 
 
 — V. Wake, 346. 
 Dodds V. Hills, 828. 
 Dodson V. Bishop, 1195. 
 Doe V. Acklam, 24. 
 
 — V. AUsop, 853. 
 
 — V. Andrews, 340. 
 
 — V. Angell, 388. 
 
 — V. Archer, 885. 
 
 Doe r. Barnard, 403. 
 
 — r. Barnes, 346. 
 
 — V. Benham, 386, 387. 
 
 — V. Benson, 963. 
 
 — V. Birch. 963. 
 
 — V. Bold, 385. 
 
 — r. Bottriell, 890. 
 
 — V. Bramston, 389. 
 
 — r. Brooks, 303. 
 
 — V. Brown, 814. 
 
 — r. Brydges, 310, 312, 676. 
 
 — r. Burt, 964. 
 
 — r. Burton, 272, 438. 
 
 — V. Caperton, 311, 438, 958. 
 
 — V. Carpenter, 532. 
 
 — V. Carter, 384, 385. 
 
 — V. Catamore, 416. 
 
 — V. Chamberlaine, 438, 95S. 
 
 — r. Clifford, 313. 
 
 — V. Coombs, 238, 326. 
 
 — V. Coulthred, 334. 
 
 — V. Creed, 457. 
 
 — V. Davidson, 286. 
 
 — V. Davies, 349, 350, 351. 
 
 — V. Dyeball, 304. 
 
 — V. Edmonds, 376, 386, 387. 
 
 — V. Evans, 54, 67, 240, 317, 458. 
 
 — V. Eyre, 379, 385. 
 
 — V. Fereday, 705. 
 
 — V. Freeman, 311. 
 
 — V. Galloway, 532. 
 
 — r. Gardiner, 326. 
 
 — V. Gower, 385. 
 
 — 1'. Grazebrook, 338. 
 
 — V. Greenhill, 458. 
 
 — V. Groves, 384. 
 
 — r. Gwinnell, 515. 
 
 — V. Hampson, 335. 
 
 — V. Lord Hertford, 882. 
 
 — V. HiUard, 286. 
 
 — V. Hinde, 387. 
 
 — V. Hiscocks, 964. 
 • — V. Hogg, 684. 
 
 — V. Hole, 268. 
 
 — V. Horrocks, 387. 
 
 — V. Hughes, 52, 618, 619. 
 
 — V. Jackson, 438. 
 
 — V. Jauncey, 402. 
 
 — r. Jones, 165, 507, 508. 
 
 — r. KeeUug, 505. 
 
 — V. King, 927. 
 
 — V. Langdon, 324. 
 
 — V. Langton, 963. 
 
 — V. Leeds & Bratlford Ry. Co., 57, 438. 
 
 — V. 'Lewia, 899, 902. 
 
 — V. Lightfoot, 379. 
 
 — V. Jjiversedge, 388. 
 
 — V. Manchester, Bury, &c., Ry. Co., 
 
 581. 
 
 — V. Martin, 65, 659, 903, 970. 
 
 — V. Massey, 165, 379. 
 
 — V. Michael, 310, 312, 321. 
 
 — V. MiUs, 253. 
 
 — V. Monro, 685. 
 ■ — V. Moore, 385. 
 
 — V. Morgan, 964. 
 
 d
 
 1 
 
 TABLE OF CASES. 
 
 Doe V. Moulsdale, 387, 388, 507. 
 
 — V. Needs, 964. 
 
 — V. Neeld, 438. 
 
 — V. Nepean, 343. 
 
 — r. North Staffordshire Ky. Co., 57, 
 
 446, 979. 
 
 — V. Oxenham, 388. 
 
 — T. Page, 385. 
 
 — V. Palmer, 416. 
 
 — V. Pearsey, 165. 
 
 — V. Pearson, 19. 
 
 — V. Pedgriph, 234. 
 
 — V. Penfold, 334. 
 
 — V. Perkins, 98. 
 
 — V. Phillips, 312, 384, 706, 851. 
 
 — V. Price, 316, 507, 851. 
 
 — r. Prince, 562. 
 
 — V. Roberts, 405. 
 
 — V. Rock, 384, 438. 
 
 — V. Roe, 890. 
 
 — r. Rolfe, 892, 899. 
 
 — r. Ross, 315. 
 
 — V. Rowe, 890. 
 
 — V. Rusham, 902, 903. 
 
 — V. Saunder, 164. 
 
 — V. Sayer, 252, 958. 
 
 — V. Seaton, 565. 
 
 — V. Stanion, 145, 254, 436. 
 
 — V. Stone, 523, 810. 
 ~ V. Story, 317, 851. 
 
 — V. Sumner, 386. 
 
 — i: Tarv-er, 350. 
 
 — V. Thompson, 385, 791, 888. 
 
 — V. Tidbury, 165, 704, 816. 
 
 — V. Turner, 385. 
 
 — V. Walker, 268. 
 
 — V. Waterton, 327. 
 
 — V. Webber, 889, 903. 
 
 — V. Webster, 745. 
 
 — V. Westlake, 964. 
 
 — V. Weston, 703. 
 
 — r. Williams, 379, 394. 
 
 — r. Willis, 164. 
 
 — V. Wood, 199. 
 
 — V. Woodroffe, 387. 
 
 — r. Woodward, 851. 
 Dolman v. Noakes, 106, 450. 
 Doloret v. Rothschild, 419, 985. 
 Dolton V. Hewen, 69, 597. 
 Doring's Settled Estates, In re, 1218. 
 Domville v. Berrington, 1195. 
 
 — V. Lamb, 1019, 1020. 
 Donaldson v. Donaldson, 900. 
 Donations, Commrs. of, v. Wybrants, 380, 
 
 382. 
 Donellan v. Reade, 204. 
 Donne v. Hart, 9. 
 Donohoe r. Conrahy, 929. 
 Donovan v. Pricker, 437, 438, 440, 803, 
 
 912. 
 Doo r. London & Croydon Canal Co., 214. 
 Doodyr. Higgins, 1225. 
 Doran v. Wiltshire, 598. 
 Dorin r. Harvey, 1095, 1097. 
 Dorling r. Claydon, 336, 
 Dorret, v. ^leux, 321, 
 
 Doswell r. Reece, 459. 
 Doughty V. Bo^vman, 766. 
 Douglas V. Archbutt, 86, 181. 
 
 — V. Douglas, 269. 
 
 — r. L. & N. W. Ry. Co., 52, 81, 
 
 152, 282, 1109. 
 
 — V. Ward, 889. 
 
 — V. Whitteronge, 866. 
 
 — V. Yallop, 484. 
 
 Dover, H, Warden of, v. S. E. Ry. Co., 
 
 562. 
 Dowell V. Dew, 884, 998, 1000, 1024, 
 
 1056. 
 Dowle V. Lucy, 1190, 1199. 
 
 — V. Saunders, 844. 
 Dowley V. Winfield, 340, 342, 343, 344. 
 Dowling V. Hudson, 597, 603. 
 
 — V. Legh, 129. 
 
 — V. Maguire, 1003, 1045. 
 Downes, In re, 726. 
 
 — r. Bullock, 394, 395. 
 
 — V. Grazebrook, 34, 36, 37, 44, 47. 
 Dowman v. Jones, 185, 947. 
 
 Downs v. Collins, 1046. 
 Dowson V. Solomon, 247, 249. 
 Doyley v. Powis, 192, 1207. 
 Drake In re, 723. 
 
 — V. Trefusis, 1178. 
 _ V. West, 780. 
 
 — V. Whitmore, 1191. 
 Drant v. Vanse, 257, 263. 
 Draper v. Borlace, 841. 
 Drax V. Scroupe, 306. 
 Drayson v. Pocock, 609, 1139. 
 Drew, In re, 724. 
 
 — v. Corp, 1073. 
 
 — r. Earl of Norbury, 497, 681, 729, 863. 
 
 — V. Hanson, 1077. 
 
 — 1). Martin, 937, 1045. 
 Drew's Estate, In re, 1143, 1145. 
 Driver v. Cholmondeley, 180. 
 Drought v. Eustace, 747. 
 
 — r. Jones, 399, 729. 
 Druce v. Denison, 1001. 
 Drummond v. Sant, 165, 384, 385. 
 
 — r. Tracey, 301, 302. 
 Drury r. Macnamara, 198. 
 
 — V. Man, 709, 710. 
 
 Dryden r. Frost, 732, 867, 875, 878, 879. 
 Drj'sdale v. Mace, 101, 144, 157. 
 Duberley %: Day, 8, 9. 
 Dublin, Arbhbishop of, v. Lord Trimleston 
 392, 404. 
 
 — and Wexford Ry. Co. r. Black, 2G. 
 Duckle V. Baines, 267. 
 
 Du-Cane, Ex parte, 36. 
 
 Duck V. Braddyll, 694. 
 
 Duckworth r. Ewart, 794. 
 
 Dud dell r. Simpson, 158. 
 
 Dudden v. Guardians of Glutton Union, 
 
 365. 
 Dudgeon v. Thomp.son, 189. 
 DutUey t: Folliott, 783, 787- 
 Dudley Canal Co. r. Grazebrook, 371. 
 Duffield V. Scott, 793. 
 Dnffill, Ex parte, 579,
 
 TABLE OF CASES. 
 
 K 
 
 Dugdale v. Dugdale, 733. 
 
 — V. Meadows, 277, 993. 
 
 — V. Eobertson, 370, 537. 
 Du Hourmelin v. Sheldon, 22. 
 Duke V. Barnett, 150. 
 Dummer v. Pitcher, 933, 937. 
 Dummer's will, In re, 664. 
 Dumoucel v. Dumoucel, 22, 339. 
 Dumper v. Dumper, 935. 
 Dunbar v. Tredennick, 49. 
 Duncan v. Cafe, 180. 
 
 — V. TindaU. 1046. 
 
 — V. Topham, 219. 
 Duncuft V. Albrecht, 201, 986. 
 Dundas v. Dutens, 1027. 
 Dunlop V. Higgins, 219, 231, 952. 
 Dunman, Ex parte, 66. 
 
 Dunn V, Snowdon, 343. 
 Dunne v. Dunne, 88. 
 
 — V. Ferguson, 203. 
 Dunsany, 576. 
 
 Dunsmure v. Bouldei-son, 341. 
 Dupree v. Bedborough, 962. 
 Durell V. Pritchard, 359, 770, 771, 983. 
 Durham, Earl of, v. Legard, 134, 140, 653. 
 — and Sunderland Railway Co. v. 
 Walker, 540. 
 Durrell v. Evans, 183, 186. 
 Dutch V. Warren, 945. 
 Duval V. Mount, 1207. 
 Du Vigier v. Lee, 395, 399. 
 Dwyer v. Collins, 882. 
 Dyas V. Cruise, 183, 1068. 
 Dyers' Company v. King, 358. 
 Dyer v. Dyer, 930, 933, 936. 
 
 — V. Hargrave, 136, 420, 633, 654, 
 
 1077. 
 
 — V. Pulteney, 247. 
 Dyke's Estate, In re, 246. 
 
 Dyke v. Kendall, 515, 735, 755, 1129. 
 Dykes v. Blake, 119, 121, 139, 956. 
 
 — V. Taylor, 1139, 1191. 
 Dyne v. Nutley, 531. 
 Dyson v. Hornby, 628, 639. 
 
 Eaden v. Eaden, 1101. 
 
 Eads V. Williams, 624, 625, 1084, 1086. 
 
 Eady, In re, 575. 
 
 Earl V. Baxter, 324. 
 
 — V. Hopwood, 240. 
 
 Early v. Garrett, 93, 96, 799, 804. 
 East, Bx parte, 668. 
 
 — Dereham, Vicar of, Ex parte, 670. 
 
 — Grinstead case, 839, 859, 904. 
 
 — Lincolnshire Railway Act, In re, 258. 
 
 — London Union v. Metropolitan Kail- 
 way Co., 959. 
 
 East India Co. v. Cavel, 901. 
 
 — V. Hensley, 184. 
 
 Eastern Counties Ry. Co. v. Pliilipson, 961. 
 Easton v. Prate, 169. 
 Eastwood V. Lever, 768, 773. 
 Eaton V. Sauxter, 255, 461, 605. 
 
 — ■ V. Swansea Waterworks Co., 375. 
 Ebrand v. Dancer, 932. 
 Eccles V. Cheyne, 10X8, 
 
 Ecclesall, In re, 1224. 
 
 Ecclesiastical Commissioners v. London 
 
 and South Western Ry. Co., 711. 
 Ecclesiastical Commissioners v. Lord Sligo, 
 
 398. 
 Echliff r. Baldwin, 1009, 1094. 
 Edden r. Read, 948. 
 Eddlestone v. Collins, 509, 576. 
 Ede V. Knowles, 889, 908. 
 Eden v. Blake, 111. 
 
 — V. Earl of Bute, 964. 
 
 — V. Thompson, 715. 
 Edge, In re, 576. 
 
 EdgeU V. Day, 178, 191, 948. 
 Edgeworth v. Edgeworth, 1139, 1222, 
 
 1224. 
 Etlinburgh and Dundee Ry. Co. v. Leven, 
 57, 210. 
 
 — Perth, and Dundee Ry. Co. 
 V. Philip, 980. 
 
 Edmonds v. Millett, 209. 
 
 — V. Peake, 181. 
 Edmunds v. BusheU, 946. 
 
 — V. Waugh, 395, 400. 
 Edwards, Ex parte, 832. 
 
 • — V. Browne, 751, 755. 
 
 — V. Burt, 751, 754, 755, 758. 
 
 — V. Edwards, 931. 
 
 — V. Fashion, 924. 
 
 — V. Fidel, 931. 
 
 — V. Grand Junction Ry. Co., 190, 
 
 1052. 
 
 — V. Harben, 907. 
 
 — V. Harvey, 85. 
 
 — V. Hodding, 180. 
 
 — V. McLeay, 104, 439, 798, 803. 
 
 — V. Martin, 916. 
 
 — V. Meyrick, 39. 
 
 — V. Milbank, 1021. 
 
 — V. Peake, 194. 
 
 — i: Tuck, 345. 
 
 — r. Wickwar, 95, 150, 155. 
 Edwards- Wood v. Marjoribanks, 1072, 
 
 1076, 
 Egerton v. Lord Brownlow, 239, 541. 
 
 — V. Jones, 1110. 
 Egmont V. Darell, 1101. 
 Egi-emont, Lord, In re, 665. 
 
 — V. Keene, 780. 
 Eisdale v. Hammersly, 76. 
 Eidsforth r. Armistead, 53, 618, 620. 
 Eland V. Eland, 597, 600, 602, 603, 620. 
 Ellard V. Lord LlandafF, 107, 1065. 
 Elliott, In re, 624, 625, 715. 
 
 — V. Brown, 924. 
 
 — V. Edwards, 7.38, 975. 
 
 — V. Elliott, 934, 935, 936. 
 
 — r. Ince, 6, 7. 
 
 — r. Merriman, 598, 602, 614. 
 
 — V. South Devon Ry. Co., 763, 
 
 — V. Turner, 636, 717, 
 Ellis, In re, 583. 
 
 — I'. Lewis, 543. 
 Ellis' Trusts, Tn re, 9. 
 
 " Ellison, In re, 721. 
 
 — V. Ellison, 900. 
 d 2
 
 lii 
 
 TABLE OF CASES. 
 
 Elmes, Ex parte, 795. 
 
 Elmhirst v. Spencer, 364. 
 
 Elmore v. Kingscote, 220. 
 
 Elmslie, In re, 724. 
 
 Else V. Barnard, 65, 79, 182, 1199. 
 
 — V. Else, 1209. 
 Elsey V. Lutyens, 853. 
 Elton r. Elton, 409. 
 Elvy V. Norwood, 400. 
 Elwes V. Elwes, 760. 
 Ehvin V. Elwin, 5, 8. 
 Elworthy v. Hilling, 1195. 
 Elwyn V. Williams, 1001. 
 Ely, Dean and Chapter of, v. Cash, 377. 
 — V. Bliss, 356, 
 
 388. 
 Emanuel v. Dane, 969. 
 Embrey v. Owen, 364. 
 Emery v. Groeock, 323, 327, 333, 1140. 
 
 — ■;;. Pickering, 1095. 
 
 — V. Wase, 624, 999, 1064, 1084. 
 Emly V. Guy, 938. 
 
 Emmerson v. Heelis, 182, 208, 234, 237. 
 Emmett v. Dewhirst, 962. 
 
 — V. Tottenham, 750. 
 Emuss V. Smith, 257, 263, 269. 
 Engelr. Fitch, 160, 953, 954, 955. 
 England, Bank of, case, 925. 
 English, III re, 718. 
 
 Eno-y. Eno, 1101. 
 
 — V. Tathani, 820. 
 Enraght v. Fitzgerald, 627, 630. 
 Ensworth v. Griffith, 822. 
 Enthoven v. Cobb, 884. 
 Entwistle v. Cannon, 1019. 
 Ernest v. CroysdiU, 803. 
 Esdaile v. Oxenham, 566, 731. 
 
 — V. Stephenson, 127, 282, 628, 636, 
 1078, 1109, 1112. 
 
 Espey V. Lake, 1015. 
 
 Espin V. Pemberton, 845, 861, 870, 879. 
 
 Esron v. Nicholas, 4, 841. 
 
 Essex r. Baugh, 684, 853, 856. 
 
 — V. Essex, 197, 209, 926, 927, 1022. 
 Estcourt V. Kingscote, 354. 
 
 Eton College, £x parte, 721. 
 
 European, &c.. Royal Mail Co. r. Royal. 
 
 MaU, &c., Co., 854, 1046. 
 Evan V. Corporation of Avon, 82. 
 Evans v. Bicknell, 844, 875. 
 
 — V. Edmonds, 103. 
 
 — V. Evans, 889, 1021. 
 
 — V. Jackson, 78, 1006. 
 
 — V. Jones, 743. 
 
 — V. Llewellyn, 646, 1053. 
 
 — V. Prothero, 237. 
 
 — V. Roberts, 202, 203. 
 
 — V. Robins, 123, 138. 
 
 — V. Upsher, 710. 
 
 — r. Vaughan, 784. 
 
 — V. Williams, 484. 
 Evelyn v. Evelyn, 817. 
 
 — V. Templar, 889, 890. 
 Everett r. Robinson, 398. 
 Everitt r. Everitt, 904. 
 
 Eversfield v. Mid. Sussex Ry. Co., 214. 
 
 Ewart V. Cochrane, 453, 537. 
 
 — V. Graham, 372. 
 Ewer V. Corbet, 598, 602. 
 
 Ewing V. Osbaldiston, 440, 970, 1045. 
 Exeter, Marquis of, v. The Marchioness, 
 
 744. 
 Eyles V. ElHs, 191. 
 Eyre, In re, 723, 1218. 
 
 — V. McDonneU, 481, 851. 
 
 — V. Sadlier, 734. 
 
 — V. Saunders, 1175. 
 Eyston v. Simonds, 1058. 
 
 Fagan, In re, 57 Z. 
 
 Fagg V. Dobie, 921. 
 
 Fain v. Ayres, 410, 787. 
 
 Faine v. Browne, 1050. 
 
 Fairbrother v. Prattent, 179. 
 
 Fairley v. Tuck, 543. 
 
 Fairlie v. Fenton, 946. 
 
 Falcke v. Gray, 748, 985, 986, 1080. 
 
 Falkner v. Equitable Reversionary Com- 
 pany, 74, 157, 172, 173, 
 1139, 1211. 
 
 — V. Somerset c't Dorset Railway 
 
 Co., 212. 
 
 — V. Grace, 1100. 
 Falmouth, Lord, v. Thomas, 204, 205. 
 Fane v. Spencer, 290. 
 
 Farebrother v. Gibson. Ill, 112, 140, 886, 
 1069, 1077. 
 
 — V. Simmons, 182, 183. 
 
 — V. Woodhouse, 582. 
 Farley v. Bonham, 516. 
 Farlow v. Wieldon. 1204. 
 Farmer v. Dean. 44, 80, 1196. 
 
 — ■;;. Farmer, 747, 753, 759. 
 
 — r. Robinson, 188. 
 Farquhar r. Farley, 949. 
 
 Farrar v. Lord Winterton, 263, 708. 
 Farrer r. Niohtingal, 114, 945. 
 Farrow v. Rees, 844, 860, 1130. 
 Farwell v. Searle, 593, 838. 
 Faulkner r. Daniel, 394. 
 
 r. LleweUyn, 993. 
 Faussett v. Carpenter, 517, 530, 743. 
 Faversham Charities, /?i re, 670. 
 Fawell r. Heelis, 730. 
 Fawcus V, Porter, 523, 810. 
 Fawkes v. Lamb, 963. 
 Featherstonhaugh r. Fenwick, 927. 
 Fector, Ex parte, 194. 
 Fee V. Cobine. 822. 
 Fenwick v. Bulman, 1005, 1006, 1011. 
 Fielden v. Slater, 770, 772. 
 Fell V. Chamberlain, 931. 
 FeUows V. Clay, 355. 
 
 — V. Lord Gwydyr, 1060. 
 Fenner v. Hepburn, 501, 994. 
 Fennings v. Humphrey, 994. 
 Fenton r. Browne, 100, 181, 1126. 
 
 — V. Clegg, 598. 
 
 Feoffees of Heriot's Hospital i'. Gibson, 121. 
 Feret v. HiU, 760, 970. 
 Fergus, Executors of, v. Gore, 1205, 1206. 
 Ferguson v. Livingstone, 400.
 
 TABLE OF CASES. 
 
 liii 
 
 Ferguson v. London & Brighton Railway 
 Company, 212. 
 
 — V. Tadman, 655, 1117. 
 
 — V. Wilson, 982, 983. 
 Femie f. Young, 1100. 
 Ferraby v. Hobson, 41, 1015. 
 Ferrand v. Wilson, 65. 
 Ferrars v. Cherry, 864, 901. 
 
 Ferrers v. Stafford & Uttoxeter E,y. Co., 
 
 448, 742, 1093. 
 Few V. Guppy, 884. 
 
 Fewsterv.Turner,121,655,996,1132,1134. 
 Field V. Boland, 184, 231. 
 
 — V. Caernarvon & Llanberis Ey. Co., 
 
 443. 
 
 — V. Churchill, 1128. 
 
 — V. Lord Donoughmore, 890. 
 
 — V. Hutchinson, 1013. 
 
 — V. Lelean, 963. 
 
 — V. Moore, 2, 8, 999. 
 Fielden v. Slater, 123, 871. 
 Fielder v. Fielder, 1203. 
 
 — V. Higginson, 1131, 1210. 
 
 — V. Studley, 791. 
 
 Fife V. Clayton, 111, 116, 1116, 1131. 
 Filder v. Bellingham, 1205. 
 Fildes V. Hooker, 146, 1110, 1111. 
 Fillingham r. Bromley, 1138. 
 Finch, In re, 725. 
 
 — V. Finch, 932. 
 
 — V. Shaw, 293, 731, 833, 844. 
 Firmin v. Pullin, 1125. 
 
 Firth V. Greenwood, 1086, 1127. 
 
 — V. Midland Ry. Co., 989. 
 
 — V. Ridley, 1046, 1047. 
 Fish V. Klein, 24. 
 
 Fisher, In re, 1224. 
 
 — V. Bridges, 239, 741, 970. 
 
 — V. Dixon, 535, 536, 560. 
 
 — V. Budding, 462. 
 Fitch r. Weber, 23. 
 Fitzgerald v. Fitzgerald, 313. 
 
 — V. Vicars, 1033. 
 Fitzmaurice, v. Bayley, 207, 220. 
 Fitzwater Peerage, 142, 313, 320, 348. 
 Flack V. Downing College, 509, 510. 
 Flack V. Longmate, 274. 
 Flather v. Stubbs, 237. 
 Fleetwoods. Green, 433, 1086, 1097, 1113, 
 
 1125. 
 Flemon's Trusts, In re, 714. 
 Fletcher v. Ashburner, 255, 264. 
 
 — V. Gt. W. Ry. Co., 371. 
 
 — V. Sedley, 906. 
 
 — V. Sidney, 937. 
 
 — V. Tayleur, 794. 
 Flights. Barton, 96, 118. 
 
 — V. Bentley, 812, 813. 
 
 — V. Bolland, 3, 1044. 
 
 — r. Booth, 118, 135, 139. 
 
 — V. Robinson, 883. 
 
 — V. Thomas, 374, 375, 376. 
 Flinn v. Calow, 812. 
 
 Flint r. Woodin, 97, 101, 105, 119, 178, 
 
 195, 424. 
 Flower, Ex parte, 713. 
 
 Flower v. Hartropp, 154, 1006, 1111, 1140, 
 1210. 
 
 — V. London & Brighton R. Co., 214. 
 Fludyer v. Cocker, 433, 629, 630. 
 Flureau v. ThornhiU, 792, 950, 951, 952, 
 
 953. 
 Foley, Ex parte, 586. 
 
 — V. Smith, 725. 
 
 Foligno V. Martin, 234, 1122, 1226. 
 Foljambe, In re, 724. 
 FoUett V. Jefferyes, 882, 883. 
 Fooks, III re, 444. 
 
 — V. Wilts S. & W. R. Co., 444. 
 Foord' V. Wilson, 790. 
 
 Foot V. Hayne, 881. 
 Footner v, Sturgis, 475, 1194. 
 Forbes v. Adams, 577. 
 
 — V. Peacock, 60, 61, 282, 597, 600, 
 
 601, 602, 603, 617, 1136. 
 
 — V. Steven, 927. 
 Ford V. Ager, 379. 
 
 — V. Lord Chesterfield, 1134. 
 
 — V. Heely, 65, 72. 
 
 — V. Holden, 36. 
 
 — V. Stuart, 891, 894, 898, 901, 1046. 
 
 — V. Tynte, 27, 934. 
 
 — r. Wastell, 475. 
 
 — V. White, 838, 853, 871, 1134. 
 
 — V. Yates, 111. 
 Fordham v. Wallis, 396. 
 Fordyce v. Ford, 1073, 1077. 
 Forrer v. Nash, 1059, 1074, 1078. 
 Forrester v. Leigh, 817. 
 Forsbrookv. Forsbrook, 1019, 1021. 
 Forshaw v. Higginson, 86. 
 
 — V. Welsby, 904. 
 Forster v. Hale, 928. 
 
 — V. Hoggart, 72, 150, 283, 975. 
 
 — V. Rowland, 234. 
 
 — V. Thompson, 377. 
 Forster's Settled Estates, In re, 1182. 
 Forsyth v. Bristowe, 391. 
 
 Fort V. Clarke, 351, 1141. 
 
 Forte V. Vine, 783. 
 
 Forteblow v. Shirley, 116, 438, 628, 1075. 
 
 Fortescue v. Barnett, 900. 
 
 Forth V. Duke of Norfolk, 458, 461. 
 
 Forty V. Reay, 345. 
 
 Fosbrooke v. Balguy, 34, 941. 
 
 Foster, In re, 574, 575, 724. 
 
 — V. Bates, 188. 
 
 — V. Blackstone, 462. 
 
 — V. Charles, 103. 
 
 — V. Cockerell, 451. 
 
 — V. Crabb, 410. 
 
 — V. Deacon, 649. 
 
 — or Forster v. Hoggart, 72, 150, 
 
 283, 975. 
 
 — V. Harvey, 1193. 
 
 — V. Leonard, 133. 
 
 — V. Roberts, 750, 754, 755, 757, 758. 
 
 — and Wilson r. Mapes, 7 S3. 
 Fotherby r. INIetrop. Ry. Co., 57, 978. 
 Fountain r. Young, 881. 
 
 Fourdrin v. Gowdey, 22, 24. 
 Fowkes V. Lamb, 947.
 
 liv 
 
 TABLE OF CASES. 
 
 Fowle V. Freeman, 231, 238. 
 
 — V. Welsh, 783. 
 Fowler v. Bayldon, 1010. 
 
 — r. Ward, 1091. 
 Fox r. Birch, 1090. 
 
 — V. Bishop of Chester, 242. 
 
 — V. Hanbury, 85. 
 
 — V. ZMackreth, 45. 
 
 — r. Exissell, 247. 
 
 — V. Scard, 1061. 
 
 — V. Wright, 754. 
 Foxlowe V. Amcoates, 1095. 
 Foxwell V. Greatorex, 85. . 
 Fowkes, V. Pascoe, 932, 939. 
 Fowler v. Ward, 1091. 
 
 Frail v. Ellis, 735, 737, 738, 870. 
 Frame r. Dawson, 1026. 
 Frampton v. Frampton, 891. 
 France v. France, 1187. 
 Francis, Ex parte, 574. 
 
 — V. Clemow, 614. 
 
 — V. Francis, 412. 
 
 — V. Grover, 381, 399, 400. 
 
 — r. Minton, 745. 
 
 — V. WigzeU, 1000, 1003. 
 Francklyn, Ex iMrte, 669. 
 Frank v. Main waring, 998. 
 Frankaw, In re, 795. 
 FrankUnski r. BaU, 1050. 
 Franklyn r. Laniond, 177. 
 Franks v. BoUans, 42, 570, 577. 
 Fraser v. Hill, 970. 
 
 — V. Jones, 885. 
 
 — V. Kershaw, 85, 925. 
 
 — r. Thompson, 900, 939. 
 
 — V. Wood, 1112. , 
 Frayne v. Taylor, 258. 
 Freebodyt'. Perry, 1091. 
 Freeland v. Pearson, 1209. 
 Freeman v. Baker, 93. 
 
 — V. Cooke, 103. 
 
 — r. Fairlie, 529. 
 
 — V. Pope, 908, 909. 
 
 — V. Steggell, 416. 
 Freemen of Sunderland, Ex parte, 52. 
 Freer v. Hesse, 456, 486, 507, 511, 1107, 
 
 1130, 1135, 1138. 
 
 — V. Kimner, 124. 
 Freme r. Blade, 758. 
 
 — V. Wright, 150. 
 French v. French, 905. 
 
 Frend v. Buckley, 294, 296, 297, 303. 
 
 Freere v. Moore, 730, 824. 
 
 Frewen v. Kelfe, 273. 
 
 Friar v. Grey, 961. 
 
 Fripp, Ex parte, 809. 
 
 Frith V. Cameron, 2. 
 
 Frogley v. Earl of Lovelace, 199, 920. 
 
 Frost V. Beavan, 6, 194. 
 
 ■ — V. Brewer, 652. 
 Fruhling v. Schroeder, 949. 
 Fry V. Fry, 58, 59, 79. 
 
 — r. Noble, 543. 
 
 — V. Porter, 859. 
 Fryer, In re, 656, 658. 
 Fryson v. Kitson, 208, 216, 227. 
 
 Fulham v. M'Carthy, 1006, 1007, 1009, 
 
 1011. 
 Fuller v. Abrahams, 108. 
 
 — V. Bennett, 878. 
 
 — r. Fenwick, 624. 
 
 — r. Redman, 459, 465. 
 
 — V. Wilson, 804. 
 
 Fumiss V. Midland Ry. Co., 211, 214. 
 Fursdon v. Clogg, 368. 
 Fury V. Smith, 681, 856. 
 Fyson, In re, 724, 726. 
 
 Gabriel v. Smith, 143. 
 
 — V. Sturgis, 1003, 1134. 
 Gaby v. Driver, 177, 180. 
 Gainsford r. Griffith, 790. 
 Gait V. Osbaldeston, 832. 
 GaitskeU, In re, 723. 
 Gale V. Gale, 261, 263. 
 Gallimore v. Gill, 614. 
 Galloway v. Mayor, &c., of London, 214, 
 
 239. 
 Galton V. Emuss, 108, 1047. 
 
 — V. Hancock, 270. 
 
 Gann v. Free Fishers of Whitstable, 367. 
 
 — V. Gregory, 416. 
 Ganvil r. Utting, 336. 
 Garbrand v. Allen, 28. 
 Garden v. Ingram, 812. 
 Gardiner v. Blesinton, 681, 684. 
 
 — V. Fell, 529. 
 Gardner, Ex parte, 424, 578. 
 
 — V. Charing Cross Ry. Co., 212. 
 
 — V. London C. & D. Ey. Co., 479, 
 
 1093. 
 Gariand v. Mead, 509. 
 GarUck v. Lawson, 1021. 
 Garmstone r. Gaunt, 2, 1140, 1223. 
 Garner v. Briggs, 466. 
 
 — V. Haunyngton, 410. 
 
 — V. Moore, 611, 941. 
 Garnett v. Acton, 266, 1112. 
 Garnons v. Swift, 969. 
 Garrard r. Frankel, 744. 
 
 — r. Grinling, 1037. 
 
 — r. Lord Lauderdale, 890. 
 
 — r. Tuck, 324, 334, 384. 
 GaiTatt r. Lancefield, 1218. 
 Garrick v. Lord Camden, 247, 1217. 
 
 — V. Taylor, 931. 
 Gartshore v. Chalie, 941. 
 Gartside v. Outram, 882. 
 Gascoigne v. Thwing, 931. 
 Gascoyne's case, 103. 
 
 Gaskarth v. Lord Lowther, 267, 1056. 
 Gaskill's trusts, In re, 9. 
 Gaslight Co. i: Turner, 970, 1045. 
 Gaston v. Frankum, 290, 1003, 1013. 
 Gayford v. Moffatt, 537. 
 Geary r. Physic, 232. 
 Gedge, In re, 723, 724. 
 
 — r. Duke of Montrose, 419, 420, 974, 
 993, 1132. 
 Gee, In re, 413. 
 
 - • V. Pearse, 162, 193, 1086, 1087, 1123, 
 
 1136.
 
 TABLE OF CASES. 
 
 Iv 
 
 Geldard r. EandaU, 1195. 
 GeU, In re, 098. 
 
 — V. Vermedun, 996. 
 General Cemetery Co., In re, 504. 
 
 — V. Watson, 652, 
 
 1090, 1207. 
 George v. Milbanke, 901. 
 
 — V. Whitmore, 1100, 1101. 
 Gerahty r. Malone, 1123. 
 Gerhard v. Bates, 102, 804. 
 Gerrard v. Lewis, 564. 
 
 — V. OTieHly, 759, 878. 
 Gervais v. Edwards, 1046. 
 Ghost V. Waller, 656. 
 Gibbins V. Eyden, 270, 622, 733. 
 
 — r. N. E. Metrop. Asylum, 228, 
 
 231, 1098, 1114. 
 Gibbons r. Howell, 1204. 
 
 — V. Snape, 307, 689, 
 Gibbs V. DauieU, 40, 41. 
 
 — V. Harding, 1048. 
 
 — V. Pike, 466. 
 
 Gibson v. Clark, 323, 1090, 1091, 1140. 
 
 — V. D'Este, 95, 104, 119, 139, 801, 
 
 803. 
 
 — V. Gibson, 543. 
 
 — V. Goldsmid, 1088. 
 
 — V. Hammersmith & City lly. Co., 
 
 213. 
 
 — V. Ingo, 860, 869. 
 
 — V. May, 412. 
 
 — V. EusseU, 20, 748. 
 
 — V. Seagrim, 915. 
 
 — V. Spurrier, 116, 956. 
 
 — V. Wollard, 208, 1198. 
 Gigner v. Bayly, 967. 
 Gilbert v. Cooper, 413. 
 Good V. Overton, 900. 
 
 Giles V. Homes, 63. 
 Gill, Ex parte, 579. 
 Gillett V. Abbott, 313. 
 
 — V. Peppercorne, 19. 
 
 — V. Pippon, 793. 
 Gilliatt V. Gilliatt, 113, 125, 194. 
 GilHbrand v. Gould, 614. 
 Gilmore, Ex jMrte, 580. 
 
 Gillon V. Lillie, 5. 
 
 GingeU v. Purkins, 524, 696, 697, 700. 
 
 Girdlestone t: Lavander, 1192. 
 
 Glaister v. Hewer, 932, 938. 
 
 Glascott V. Lang, 1015, 1124. 
 
 Glasgow, City of. Union Ey. Co. v. Cale- 
 donian Ry. Co., 762. 
 
 Glass V. Richardson, 509, 1139. 
 
 Glave r. Harding, 539. 
 
 Glegg V. Rees, 890. 
 
 Gloucester, Ex 2Mrte,'Dei\.n and Chapter of, 
 666. 
 
 Glover, In re the Goods of, 232. 
 
 — V. Coleman, 375. 
 
 — V. Rogers, 1134. 
 Glyn V. Caulheld, 881, 882. 
 Glynn.t'. Locke, 597. 
 Goddard r. Complin, 693. 
 Godfrey v. Tucker, 460, 474, 479. 
 Godley, In re, 713. 
 
 Godson r. Turner, 151. 
 Godwin r. Francis, 232, 952. 
 Goe's trusts, In re, 715. 
 Goldham v. Edwards, 243. 
 Goldicutt V. Townsend, 1027. 
 Goldney v. Crabb, 1138. 
 Goldsmid r. Stonehewer, 1225. 
 
 — r. Tonbridge Wells &c.. Com- 
 
 missioners, 366. 
 Goldsmith v. Russell, 905. 
 Gomm V. Parrott, 833. 
 Gompertz r. Bartlett, 806. 
 
 — V. Pooley, 976. 
 Gooch's case, 889. 
 Goodall V. Little, 881, 882. 
 
 — V. Pickford, 1203. 
 
 — t: Skerratt, 376, 389. 
 Gooday v. Colchester, Ry. Co., 183. 
 
 — V. Sleigh, 1129. 
 Goode V. Burton, 731. 
 
 — V. HaiTison, 26. 
 
 — V. Job, 386, 397. 
 
 — V. Waters, 377. 
 
 — r. West, 1018. 
 Goodricke v. Taylor, 905. 
 Goodright v. Cater, 77. 
 
 — v. Moses, 889. 
 Goodson V. Ellison, 582. 
 Goodtitle v. Meredith, 268. 
 
 — V. Pope, 271. 
 
 Goodwin's Settled Estates, In re, 1173, 
 
 1201, 1207, 1208. 
 Goodwin r. Clarke, 1121. 
 
 — V. Fielding, 69, 208, 1080. 
 Goold r. Goold, 10. 
 
 — V. Teague, 257, 262, 732. 
 
 — r. White, 147, 1140. 
 Goom V. Aflalo, 234. 
 
 Gordon, Lord, v. Lord Hertford, 1037, 
 1053. 
 
 — V. BaU, 1096, 
 
 — V. Crawford, 747. 
 
 — r. Woodford, 133. 
 Gore, Ex parte, 32. 
 
 — Langton, Ex parte, 721. 
 
 — Settled Estates, In re, 719, 720. 
 
 — V. Bowser, 460, 468, 882. 
 
 — V. Gibson, 969. 
 
 — V. Harris, 882. 
 
 — V. Stackpoole, 1009, 1225. 
 George's, Lady, case, 933, 937. 
 Goring, Ex parte, 53. 
 Gorsuch V. Cree, 976. 
 
 Gosbell V. Archer, 188,208, 216, 234, 40;', 
 
 945, 949. 
 Gosling's case, 853, 857, 858. 
 Gosling V. Carter, 63, 618, 619. 
 
 — V. Gosling, 1020, 1021, 1022, 
 Goss V. Lord Nugent, 111, 962, 970. 
 Gossip V. Wright, 36, 822. 
 
 Gough V. Davies, 13. 
 
 — V. Hoffley, 412. 
 Gould, Ex parte, 714, 985. 
 
 — r. Shoyer, 846. 
 
 — r. Staffordshire Potteries Water- 
 
 works Co., 721.
 
 Ivi 
 
 TABLE OF CASES. 
 
 Gourlay v. Duke of Somerset, 221, 222, 
 
 624, 
 Govett V. Eichmond, 841. 
 Gowan v. Tighe, 121C. 
 Gowland v. De Faria, 48, 749, 754, 757. 
 Graham v. Ewart, 540. 
 
 — T. Furber, 908. 
 
 — 'I'. Graham and Griffith, 7C0. 
 
 — V. Jackson, 529, 570. 
 
 — V. Musson, 182, 186, 217. 
 
 — V. Oliver, 1058, 1069. 
 
 — V. Sime, 710. 
 Grainge, Ex parte, 669. 
 
 Grand Junction Canal Co. v. Dimes, 917. 
 — V. Shugar,365. 
 
 Grange v. Trickett, 29. 
 Granger r. Worms, 120. 
 Grant v. Ellis, 377, 388. 
 
 — V. MiUs, 730, 734. 
 
 — V. Munt, 92, 654. 
 
 — V. Yea, 688. 
 Granville, Earl, r. Danvers, 846. 
 Gravenor v. Miles, 1205. 
 Graves v. Weld, 202. 
 
 — V. Wilson, 109. 
 
 — V. ^Vright, 193. 
 Gray v. Briscoe, 781, 792. 
 
 — V. Gray, 937. 
 
 — V. Gutteridge, 180, 185. 
 
 — V. Liverpool and Bury Ry. Co., 57. 
 Great Luxemburg Ey. Co. v. Magnay, 49. 
 Great N. Ry. Co., Ex jiarte, 712. 
 
 — V. East. C. Ry. Co., 1045. 
 
 — r.M.,&c.,Ry.Co.,1049. 
 Great Western Ry. Acts, In re, 667. 
 
 — V. Bennett, 371. 
 
 — V. Crii^ps, 1053. 
 
 — V. Reg., 980. 
 Greatrex r. Hay ward, 366. 
 Greaves v. Ashlin, 111. 
 
 — r. Wilson, 158, 160, 172, 472. 
 Greene, In re, 1173. 
 
 Green r. Bailey, 142. 
 ■ — • V. Baverstock, 194. 
 
 — V. Briggs, 1124. 
 
 — V. Cramer, 207, 227. 
 
 — V. Laiirie, 871. 
 
 — r. Low, or Law, 209, 1042, 1052. 
 
 — V. Lowes, 623. 
 
 — V. O'Kearney, 892. 
 
 — V. Pulsford, 330, 1105, 1140. 
 
 — V. Saddington, 201, 205. 
 
 — V. Smith, 246, 266. 
 Greenaway •;■. Hart, 888. 
 
 Greene v. West Cheshire Ry. Co., 989, 
 991. 
 
 Greenhalgh v. Manchester and Birming- 
 ham Ry. Co., 446. 
 
 Greenslade v. Dare, 6, 382, 415, 760, 859, 
 868, 109.5. 
 
 Greenlaw v. King, 31, 33, 46, 881. 
 
 Greenway r. Burt, 815. 
 
 Greenwood r. Bairstov^ 815. 
 
 — V. Churchill, 127, 636, 876. 
 
 — V. Greenwood, 753. 
 
 — V. Peimy, 267. 
 
 Greenwood r. Roth well, 411. 
 
 — V. Sutherland, 1021. 
 
 — V. Taylor, 594. 
 
 — and Titterington, In re, 624. 
 Greetham v. Colton, 618, 619. 
 
 Gregg V. Glover, 1203. 
 Gregory v. Gregory, 48, 49. 
 
 — V. Migliell, 221, 1024, 1030, 
 
 1032. 
 
 — V, Spencer, 1099. 
 
 — V. Wilson, 636, 1029, 1089, 
 Gregson v. Hindlay, 392. 
 
 Grell V. Levy, 239. 
 Greisley v. Lord Chesterfield, 58, 59. 
 Gresley v. Moiilsey, 40, 48, 883. 
 Greswold v. Marsham, 461, 917, 918. 
 Greville v. De Costa, 945. 
 
 — v. Tylee, 416. 
 
 Grey v. Grey, 932, 933, 935, 936, 1226. 
 
 — V. Jenkins, 1174, 1175, 1179. 
 Greycoat Hospital, Governors of, v. West- 
 
 ininster, &c., Commissioners, 247, 510, 
 
 740, 1140, 1219. 
 Grierson v. Cheshire Lines Committee, 
 
 210, 213, 443. 
 Griffin v. Clowes, 658, 659. 
 
 — v. Stanhope, 890, 903. 
 Griffith r. Ricketts, 890, 901. 
 Griffiths V. Hatchard, 144, 674, 676. 
 
 — V. Jenkins, 203. 
 
 — V. Penson, 532. 
 
 — V. Porter, 656, 658. 
 
 — V. Young, 201. 
 Grig V. Sturgis, 1134. 
 Grigby v. Cox, 10, 1000. 
 Griggs V. Staples, 1053. 
 Grimes v. Peacock, 538. 
 Grissall v. Stelfox, 342. 
 Grisell v. Bristowe, 292, 987. 
 
 — V. Peto, 140. 
 
 Groom v. Booth, 150, 172, 175. 
 Grose v. West, 165, 335. 
 Grosse v. Gayer, 13. 
 Grosvenor v. Green, 95. 
 
 — v. Hampstead Jn. Ry. Co., 
 
 212. 
 Grove r. Bastard, 321, 330, 643, 1009, 
 1105, 1136, 114L 
 
 — V. Comyn, 1187. 
 Grover v. Hugell, 34, 1137. 
 Groves v. Groves, 931. 
 
 — V. Perkins, 746. 
 Growsock v. Smith, 630. 
 Grugeon i\ Gerrard, 71. 
 Guadiano v. Brown, 625. 
 
 Guardians of the E. London Union v. 
 
 Metrop. Ry. Co., 959. 
 Gudgen r. Besset, 731, 967. 
 Guest V. Cowbridge Ry. Co., 477, 481. 
 
 — V. Homfray, 305, 424, 435, 1087, 
 
 1127. 
 
 — r. Willasey, 268. 
 
 Guilden Sutton Inc. of. Ex iiarte, 713, 714. 
 Gunnis v. Erhart, 111. 
 Gunter r. Gunter, 271, 941. 
 
 — V. Halsoy, 1026, 1034.
 
 HLBLE OF CASES. 
 
 Ivii 
 
 Gurney v. Jackson, 1134, 1135. 
 Grwillim V. Stone, 105. 
 Gwynn v. Lethbridge, 1116, 1119. 
 Gyde, Ex parte, 162. 
 
 Hadfield, In re, 668. 
 
 Hadley v. Baxendale, 794, 951, 952. 
 
 — V. London Bk. of Scotland, 1094. 
 Haig V. Hogan, 887. 
 
 Haigh V. De la Cowe, 969. 
 
 — V. Jaggar, 1094. 
 Haines v. Barnett, 168. 
 
 — V. Roberts, 369. 
 Hales V. Freeman, 593. 
 
 — V. Stevenson, 379. 
 Haley v. Hanaersley, 132. 
 Halfhide v. Eobinson, 8, 1187. 
 HaU, Ex parte, 890. 
 
 — i'. Adkinson, 802. 
 
 — r. Bainbridge, 967. 
 
 — V. Betty, 145, 216, 290, 949. 
 
 — V. Bushell, 708. 
 
 — V. Dewes, 608. 
 
 — V. Franck, 657, 658. 
 
 — V. HaU, 901, 904. 
 
 — V. Jenkinson, 1092. 
 
 — V. Laver, 437, 1011, 1097. 
 
 — V. Macdonald, 1215. 
 
 — V. May, 607, 1138. 
 
 — V. Noyes, 48. 
 
 — V. Smith, 95, 117. 
 
 — V. Swift, 366. 
 
 — r. Warren, 1060. 
 
 — V. Waterhouse, 10, 571. 
 Hall's Estate, In re, 347. 
 Hallen v. Pamder, 203, 204. 
 Hallett V. Middleton, 787, 810. 
 Halliday v. Dennison, 534, 535. 
 Halsey v. Grant, 1074. 
 
 Haly V. Barry, 480, 481. 
 Hamblyn r. Ley, 912. 
 Hamer v. Sharp, 66, 183, 1048. 
 Hamilton, Duke of, v. Graham, 371. 
 
 — V. Buckmaster, 53, 84, 1103, 
 
 1138. 
 
 — V. Denny, 926. 
 
 — V. Grant, 1057. 
 
 — V. Royse, 914. 
 
 — V. Terry, 227. 
 
 — V. Worley, 817. 
 
 — V. Wright, 45. 
 Hamraersley r. De Beil, 215, 841, 842, 
 
 1028, 1040. 
 Hammond v. Hammond, 522. 
 
 — V. Hill, 782. 
 
 — V. Smith, 397. 
 
 — V. Toulmin, 794. 
 Hampshire v. Bradley, 581. 
 Hanbury v. Litchfield, 874, 1014, 1069. 
 Handcock v. Haudcock, 483, 839, 914, 
 
 919. 
 Handley v. Wood, 401. 
 Hanks v. PulHng, 151. 
 Hanley v. Cassan, 191, 658. 
 Hannah i-. Hodgson, 4, 3'29. 
 Hansard v. Hardy, 867. 
 
 HansHp^'. Padwick, 282, 283, 417, 949, 
 
 950, 95L 
 Hanson v. Keating, 9, 578. 
 
 — V. Lake, 709, 1129. 
 
 — i: Poberdean, 177. 
 Harbidge v. Warwick, 356, 374, 375. 
 
 — V. Wogan, 904. 
 Harcourt v. White, 48, 395. 
 Hardey v. Hawkshaw, 258. 
 Harding, In re, 724. 
 
 — V. Ambler, 740. 
 
 — V. Harding, 278, 732, 820, 1226. 
 
 — V. Metrop. E,y. Co., 210, 259, 
 
 978. 
 
 — V. Pingey, 582. 
 
 Hardwicke, Ex parte the Earl of, 643, 
 716. 
 
 — Earl of, r. Lord Sandys, 247, 
 
 1217. 
 Lord V. Vernon, 43. 
 Hardy, Ex parte, 714, 716. 
 Hare v. Purges, 550, 551. 
 
 — V. Horton, 132, 535. 
 
 — V. Shearwood, 1036, 
 Harford v. Pumer, 249, 649. 
 Hargi-ave v. Hargrave, 336, 337, 474. 
 
 — V. Le Breton, 108. 
 Hargreaves, In re, llSl. 
 
 — V. Rothwell, 878. 
 
 ~ V. Wright, 1006, 1120. 
 
 Harington v. Hoggart, 180. 
 Hariand v. Binks, 901. 
 Harley v. King, 921. 
 Harman's Estate, In re, 669. 
 Harman v. Richards, 890, 892, 901. 
 
 — v. Riley, 1225. 
 Harmer v. Bean, 812. 
 Harmood v. Oglander, 267. 
 Harms v. Parsons, 992, 994. 
 
 Harnett v. Yielding, 1046, 1053, 1063, 
 
 1071. 
 Harper, In re, 574. 
 
 — V. Bird, 1189. 
 
 — V. Faulder, 844. 
 
 — V. Hayes, 67, 69, 79, SO, 1202. 
 
 — V. Jones, 723, 724, 725. 
 
 — V. Munday, 616. 
 Harrington v. Long, 240, 241. 
 
 — V. Price, 731. 
 
 — V. Wheeler, 1085. 
 Harris v. Amery, 1046. 
 
 — ?'. Booker, 458. 
 
 — V. Davison, 469, 470. 
 
 — V. Fergusson, 923. 
 
 — V. Harris, 394, 588. 
 
 — V. Kemble, 1040, 1053. 
 
 — r. Mott, 1000, 1113. 
 
 V. repperell, 531, 744, 746. 
 
 — V. Pugh, 458. 
 
 — V. Ryding, 368, 370. 
 
 — V. S. Devon Ry. Co., 213. 
 
 — V. Wall, 26. 
 
 — V. Watkins, 616. 
 Harrison's Estate, //(. re, 721. 
 Harrison, Ex parte, 33, 624. 
 
 — In re, 583, 724, 725, 72G.
 
 Iviii 
 
 TABLE OF CASES. 
 
 Harrison v. Barton, 923, 924, 925. 
 
 — V. Coppard, 409, 800, 1131. 
 
 — r. Duignan, 377, 378, 399, 
 
 884. 
 
 — V. Good, 7G9, 775, 921. 
 
 — V. Guest, 20, 747, 748. 
 
 — V. Harrison, 264. 
 
 — V. Keating, 1088. 
 
 — V. Pennell, 1135. 
 
 — V. Southampton, mayor of, 339. 
 
 — V. Southcote, 440. 
 Harrop, In re, 673. 
 
 — V. Hirst, 346, 369. 
 Harrop's Estate, In re, 13, 260. 
 Harryman v. Collins, 746, 875. 
 Hart V. Hart, 142, 238, 326. 
 
 — v. Tnlk, 231. 
 Hart's case, 1044. 
 Hartley, Keuben, la re, 723. 
 
 — V. O'Flaherty, 839. 
 
 — V. Smith, 1140. 
 
 — V. Wharton, 26. 
 Hartop, Ex parte, 177, 947. 
 Hartopp V. Hartopp, 753. 
 Harvey, In re, 584. 
 
 — V. Brooke, 1119, 1218. 
 
 — V. Grabham, 970. 
 
 — V. Harvey, 5S6. 
 
 — V. Mount, 20. 
 
 — V. Phillips, 142, 313. 
 
 — V. Smith, 453, 454, 865. 
 Harwood v. Bland, 432. 
 
 — V. Tooke, 810. 
 HasseU, £x parte, 378. 
 Hasker v. Sutton, 1139. 
 Haslock -y. Eergusson, 104. 
 Hastie v. Couturier, 806. 
 Hastings v. Wilson, 83, 253, 272. 
 Hatch V. Hatch, 20. 
 Hatfield's Estate, In re, 719. 
 Hatherton, Lord, v. Bradburne, 255. 
 Hatton r. Haywood, 469, 476, 477, 47S, 
 
 483. 
 Havens v. Middleton, 170, 1139. 
 Haynes v. Barton, 715, 717, 719. 
 
 — r. Haynes, 210, 259. 
 Haw V. Ogle, 5. 
 
 Hawker v. HaUewell, 30. 
 
 Hawkes v. Eastern Counties Kailw. Co., 
 
 57, 81, 190, 1052, 1057, 1058, 107S, 
 
 1084. 
 Hawkins, Ex parte, 258, 259, 263. 
 
 — V. Gardiner, 656, 730. 
 
 — V. Gathercole, 473, 883. 
 
 — V. Holmes, 235, 1034. 
 
 — V. Kemp, 75, 608. 
 
 — V. Maltby, 986. 
 
 — V. Perry, 584. 
 
 — V. Kutt, 191. 
 Hawksbee v. Hawksbee, 403. 
 Hawley, Ex iiarte, 881. 
 
 — In re, 624, 626. 
 Hawtrey v. Butlin, 567, 568. 
 Hayden r. Kirkpatrick, 918. 
 Haydon v. Bell, 431, 433, 1117. 
 
 — r. Wood, 52. 
 
 Hayes v. Bayley, 1122. 
 
 Hayford v. Criddle, 117, 120, 133, 1073, 
 
 1075, 1076. 
 Haygarth v. Wearing, 20, 747, 749. 
 Haynes v. Barton, 714, 717, 719. 
 
 — V. Eorshaw, 602. 
 
 — V. Hare, 108. 
 
 — %: Haynes, 210, 211, 919, 978. 
 Hayter v. Tucker, 201. 
 
 Haywood v. Cope, 94, 219, 423, 994, 1033, 
 1052, 1053, 1056, 1083, 1086, 1087. 
 
 Head's Case, 292. 
 
 Head v. Egerton, 832. 
 — v. Godlee, 753. 
 
 Headen v. Rosher, 754. 
 
 Heald v. Kenworthy, 948. 
 
 Heale v. Knight, 275. 
 
 Heap V. Tonge, 892, 898. 
 
 Heaphy ^•. HiU, 422, 1086. 
 
 Heard v. Cuthbert, 708. 
 
 — V. Pilley, 931, 932. 
 Hearn v. Tomlin, 114, 439. 
 Heasman r. Pearce, 813. 
 Heath r. Bucknall, 357, 358. 
 
 — V. Crealock, 299, 412, 524, 658, 
 
 731, 810, 825, 826, 832, 835. 
 
 — r. Weston, 614. 
 Heather v. O'Neill, 1000. 
 Hele V. Lord Bexley, 919. 
 Hellawell v. Eastwood, 536. 
 Helling v. Lumley, 1050. 
 Helsham v. Langley, 1048. 
 Heming v. Archer, 1213, 1220. 
 Hemingway, //(. re, 221. 
 
 — %: Fernandes, 767, 1011, 1051. 
 
 Hemming v. Spiers, 344, 345. 
 Henderson, In re, 568. 
 
 — V. Australian S. M. Co., 190, 
 
 235. 
 
 — r. Barnewall, 178, 181. 
 
 — V. Dodds, 1214. 
 
 — V. Eason, 926. 
 Hennessey r. Bray, 86. 
 Hennett v. Luard, 1133. 
 Henniker v. Chafy, 668, 714, 717. 
 
 — V. Henniker, 525. 
 Henning v. Burnet, 363. 
 Henry r. Smith, 394, 398. 
 Hensman v. Fryer, 270, 622, 733. 
 Henson v. Coope, 962. 
 Hepworth v. Hepworth, 932. 
 
 — V. Heslop, 1214. 
 
 — V. HiU, 818. 
 
 Herbert v. Salisbury, &c.. Rail. Co., 127, 
 129, 643. 
 — V. Tuckal, 348. 
 Hercy v. Ferrers, 412. 
 Hereford, Bishop, In re, 716. 
 Hernaman v. Coryton, 2JS, 846. 
 Heron v. Treyne, 788. 
 Herring v. Clobery, 882, 883. 
 Hersey v. Giblett, 996, 1086. 
 Hertford, Marquis of, v. Boore, 1086. 
 Hesse v. Briant, 31, 37. 
 
 — V. Stevenson, 544, 790. 
 Hewett V. Webb, 968.
 
 TABLE OF CASES. 
 
 lix 
 
 Hewison v. Negus, 43, 890, 
 Hewitt, In re, 585. 
 
 — r. Loosemore, 415, G78, 731, 844, 
 
 869, 875, 877, 879. 
 
 — r. Nanson, 1193, 1196. 
 Hext V. Gill, 69, 116, 370, 373. 
 Heymann v. European Central Rail, Co., 
 
 106. 
 Heyward r. Barnes, 228. 
 Hoy wood V. Lomax, 804. 
 IJibbertr. Bayley, 181. 
 
 — V. Cook, 2. 
 
 — V. Shee, 114. 
 Hibon V. Hibon, 270. 
 Hick V. Phillips, 1073. 
 Hicks V. Hankin, 184. 
 
 — V. Hastings, 123, 911, 913. 
 
 — V. Morant, 352, 659. 
 
 — V. Powell, 686. 
 
 — V. SaUitt, 123, 911, 913. 
 Hickson r. Collis, 488. 
 
 Hide V. Hide, 1211. 
 Hiern v. Mill, 866, 867, 1014. 
 Higginbotham v. Hawldus, 380. 
 Higgins V. Samels, 100, 1053, 1056. 
 
 — V. Senior, 946, 947. 
 
 — V. Shaw, 603, 623. 
 
 — V. York Building Co., 458. 
 Higginson v. Clowes, 110, 111, 133, 197, 
 
 1038, 1116. _ 
 Higgs V. Dorkis, 1187. 
 Highgate Archway Co. r. Jeakes, 761. 
 Hill V. Buckley, 141, 651, 652, 654. 
 
 — r. Edmonds, 8. 
 
 — V. Exeter, Bishop of, 889. 
 
 — V. Gray. 94. 
 
 — V. Gt. N". Ry. Co., 211, 1014. 
 
 — V. Magan, 85. 
 
 — V. Mill, 824, 853. 
 
 — V. Philip, 968. 
 
 — V. Pritchard, 77. 
 
 — V. Stawell, 397. 
 
 Hillary v. Waller, 323, 327, 1102, 1140. 
 Hills V. Croll, 1046. 
 
 — V. Laming, 523. 
 Hilton V. Barrow, 1072. 
 
 — V. Eckersley, 239. 
 
 — V. Woods, 242. 
 Hinchliffe v. Earl of Kinnoul, 360. 
 Hinchsman v. Smith, 749, 75 i. 
 Hinde v. Blake, 901. 
 
 — V. Poole, 608, 1138. 
 
 — V. Whitehouse, 221. 
 Hinder v. Streeten, 709, 1128. 
 Hindle v. Dakins, 1212, 1217. 
 Ilindley Chapel, In re, 89. 
 
 — V. Emery, 193, 770, 771, 982. 
 Hine v. Dodd, 857. 
 
 Hinton r. Hinton, 516, 996, 997. 
 
 — V. Sparkes, 192. 
 
 Hiorms v. Holton, 659, 825, 1134, 1193. 
 Hippesley v. Spencer, 251. 
 HipweU V. Knight, 419, 426, 427. 
 Hitchcock V. Giddings, 806. 
 — V. Sedgwick, 871. 
 Hitchin's Estate, In re, 670. 
 
 Hitchins r. Lander, 240. 
 Hitchman r. Walton, 132, 567. 
 Hobby V. Allen, 577. 
 
 — V. ColUns 577. 
 Hobday v. Peters, 35, 41, 1004. 
 Hobhouse r. Hamilton, 313. 
 
 Hobson V. Bell, 126, 141, IGl, 172, 173, 
 175, 328, 332. 
 
 — V. Burns, 398. 
 
 — V. Middleton, 785. 
 
 — V. Neal, 275. 
 
 — V. Trevor, 1061. 
 Hoby V. Roebuck, 204. 
 Hochsten v. De Latour, 794, 961. 
 Hoddel V. Pugh, 709. 
 
 Hodder r. Ruffiu, 1201, 1216, 1226. 
 Hodge, Ex parte, 715. 
 Hodges V. Blagrave, 550. 
 
 — V. Croydon Canal Co., 399. 
 
 — r. Horsfall, 964. 
 
 — V. Lord Litchfield, 306, 949, 950, 
 
 973. 
 Hodgkinson v. Cooper. 291, 293. 
 
 — V. Crowe, 168, 109. 
 
 — V. Ennor, 365. 
 
 — r. Fernie, 624. 
 
 — V. Quin, 53, 618, 619. 
 Hodgson r. Dean, 863, 871. 
 
 — V. Johnson, 200. 
 
 — V. Le Bret. 234. 
 
 — V. Shaw, 1218. 
 Hodkinson v. Quinn, 620. 
 HotUe V. Healey, 392. 
 Hodson V. Coppard, 767. 
 
 — and Drewry, In re, 624. 
 Hoggart v. Cutts, 179. 
 
 — V. Scott, 1058. 
 Hoghton V. Hoghtou, 20, 753. 
 Holden, In re, 467, 669, 721. 
 Holden's Estates, In re, 669. 
 
 — V. Hayn, 1011. 
 
 Holding V. Barton, 1035. 
 Holdsworth v. Goose, 76. 
 Hole V. Barlow, 775. 
 
 — V. Pearce, 993. 
 
 — V. White, 1026. 
 Holford V. Phipps, 581. 
 Holker v. Porritt, 364, 539. 
 Holland, Ex parte, 1139. 
 
 — V. Clarke, 380, 386. 
 
 — V. Eyre, 228. 
 
 — V. Hodgscm, 536, 567- 
 
 — V. Holland, 1187. 
 
 — V. King, 1210. 
 HoUick, Ex parte, 667. 
 Holliday v. Overton, 522. 
 Hollis V. Claridge, 412. 
 Holloway v. RadcUffe, 611. 
 Holman v. Loynes, 39, 40. 
 Holme V. Goring, 363. 
 Holmes V. Baddeley, 883. 
 
 — V. Bellingham, 362. 
 
 — V. Blogg, 26, 27. 
 
 — V. Buckley, 798. 
 
 — V. E. C. Ry. Co., 1049. 
 
 — V. Hoskins, 202.
 
 Ix 
 
 TABLE OF CASES. 
 
 Holmes v. Newlands, 403. 
 
 — V. Penny, 905, 908. 
 
 — V. Powell, 453, 866, 997. 
 
 — V. Sexsmith, 694. 
 
 — V. Tutton, 460. 
 Holroyd v. "Wyatt, 1201, 1207. 
 Holsgraye v. Hedges, 30. 
 Holt V. Ely, 948. 
 
 — V. Kellv, 907. 
 Holwood V. Baily, 1131. 
 Holyman, Ex parte, 33. 
 Holywell, Ex parte. Rector of, 714. 
 Homan v. Andrews, 395. 
 
 — Ex parte, 568. 
 
 Homersham v. Wolverhampton, W. W. 
 
 Co., 235. 
 Homfray v. Scroope, 353. 
 Honeycombe v. Waldron, 856. 
 Honeyman v. Marryat, 228, 230, 418. 
 Honeywood v. Forster, 307, 689. 
 Honywood v. Honyn-ood, 133. 
 Hood V. Lord Barrington, 218. 
 
 — r. Beauchamp, 349. 
 
 — r. Hall, 1221. 
 
 — V. Hood, 264, 471, 732, 818. 
 
 — r. N. E. Ry. Co., 990. 
 
 — r. Oglander, 1051, 1053, 1064. 
 
 — r. PhiUips, 941. 
 
 — V. Pimm, 1085. 
 
 Hooper, Ex parte, 718, 1024, 1026. 
 
 — V. Clark, 766, 776, 780. 
 
 — r. Cooke, 912. 
 
 — V. Good-ivin, 1195, 1202. 
 
 — V. Gumm, 855. 
 
 — V. Smart, 1065, 1067. 
 Hopcraft v. Hickman, 624. 
 Hope V. Booth, 254. 
 
 — V. Hope, 439, 1046. 
 
 — r. Liddell, 49, 412, 608, 621, 657, 
 864, 876. 
 
 Hopgood V. Ernest, 870. 
 Hopkins v. Amery, 879. 
 
 — V. Grazebrook, 792, 952, 953, 
 
 954. 
 
 — V. Hopkins, 1009. 
 
 — V. Miall, 1000. 
 Hopkinson v. Lush, 522. 
 Hopper, In re, 224, 1225. 
 
 — V. Conyers, 939. 
 Hordem, Ex parte, 668. 
 Horlock r. Smith, 407, 943. 
 Horn V. Horn, 599, 622. 
 Hornby v. Matcham, 413. 
 Home v. Barton, 743. 
 
 — V. Wingfield, 125, 279. 
 Homer, In re, 260, 673. 
 
 — V. Williams, 1077, 1225. 
 Horrocks v. Mimday, 616. 
 Horsey v. Graham, 200. 
 Horsfall, Exparte, 565. 
 
 — V. Gamett, 229. 
 
 — i: Hay, 239, 525. 
 Horsley v. Cox, 477. 
 Horton v. Smith, 941. 
 
 — V. Westminster I. Commissioners, 
 
 810. 
 
 Hoskins v. Phillips, 442. 
 Hotham r. Somerville, 482. 
 Houghamr. Sandys, 65. 
 Houghton, Ex parte, 930. 
 
 — V. Bankart, 222. 
 
 — r. Houghton, 924. 
 
 — V. Konig, 323. 
 
 — V. Lees, 753. 
 HoulcUtch r. CoUins, 482. ^ 
 Howard, Isabella, In re, 574, 575. 
 
 — In re, 723. 
 
 — V. Braithwaite, 233, 1127. 
 
 — r. Chaffer, 602, 603, 621. 
 
 — V. Ducane, 42, 1139. 
 
 — V. Hopkins, 108, 1061. 
 
 — V. Shaw, 439, 958. 
 
 — V. Wheatley, 1000. 
 Howard's Estate, In re, 1221. 
 Howarth r. Smith, 331, 1099, 1140. 
 Howe r. HaU, 1025. 
 
 — V. Hunt, 1053. 
 
 — Earl of, V. Lichfield, Earl of, 276. 
 HoweU V. George, 1051, 1053, 1064. 
 
 — V. Howell, 45, 911. 
 
 — r. Kightley, 169, 170, 1109, 1200, 
 
 1211. 
 
 — V. Richards, 790. 
 Howes r. Brushfield, 785. 
 Howkins r. Jackson, 745. 
 Howland v. Norris, 628, 1078. 
 
 Hoy V. Smithies, 134, 155, 158, 159, 161, 
 
 172. 
 Hubbard, In re, 724, 725. 
 
 — V. Hubbard, 2, 1187. 
 
 — V. Lees, 349. 
 Hubert r. Treheme, 233. 
 
 — r. Turner, 233. 
 Huddlestone r. Briscoe, 228, 238. 
 Hudson V. Cook, 265. 
 
 — %•. Leeds and Bradford Railway 
 
 Co., 446. 
 
 — V. Temple, 160, 419. 
 Hue r. French, 857. 
 
 Hughes, Exparte, 35, 45, 46, 1196. 
 
 — Tmsts, In re, 451, 839. 
 
 — V. Bennett, 790. 
 
 — V. Biddulph, 881. 
 
 — V. Clarke, 326. 
 
 — r. Humphreys, 645. 
 
 — V. Jones, 129, 141, 438, 452, 867, 
 
 1068, 1073. 
 
 — V. Kearney, 644j 734. 
 
 — V. Kelly, 399. 
 
 — V. Lipscombe, 1199. 
 
 — V. Lumley, 459, 854. 
 
 — r. Morris, 53, 656, 659, 1026, 
 
 1046. 
 
 — r. Parker, 115. 
 
 — r. Tiu-ner, 268. 
 
 — V. Wells, 813, 840, 941, 1000, 
 
 1003, 1217. 
 
 — r. Williams, 839. 
 
 — r. Wjmne, 408. 
 Hugh Neal's Tmsts, In re, 522. 
 Huguenin v. Basley, 20 . 
 Hulkes r. Day, 458. 
 
 f
 
 TABLE OF CASES. 
 
 Lxi 
 
 Hull and Hornsea E. Co., In re, 479. 
 — V. Vaughan, 253, 439. 
 Hulme, Ex parte, 579. 
 
 — V. Heygate, 268. 
 
 — V. Teunant, 1003. 
 Humble v. Humble, 1207. 
 
 — V. Hunter, 185, 946. 
 
 — V. Langston, 988. 
 
 Hume V. Bentley, 146, 150, 155, 168, 
 1113, 1139, 1198. 
 
 — V. Pocock, 146, 152, 153. 
 Humfrey v. Dale, 947, 963, 964. 
 
 — V. Gery, 398, 399. 
 Humphrey v. Lucas, 946. 
 Humphreys v. Harrison, 251. 
 
 — r. HoUis, 1002, 1006. 
 
 — ■;;. Home, 808, 1207. 
 
 — V. Pensam, 903. 
 
 — V. Roberts, 1203, 1204. 
 Humphries v. Brogden, 368. 
 
 — V. Home, 1037. 
 Hungate v. Gascoigne, 345. 
 Hungerford-, In re, 668, 718, 719. 
 Hunt, In re, 725. 
 
 — V. Bateman, 380, 381. 
 
 — V. Bishop, 243. 
 
 — r. Coles, 458. 
 
 — r. Danvers, 782. 
 
 — V. Elmes, 877, 830. 
 
 — V. Hewitt, 968. 
 
 — V. Hunt, 1048. 
 
 — V. Peake, 368. 
 
 — V. Remmant, 243, 542, 814. 
 
 — r. Silk, 945. 
 Hunter, Ex parte, 162, 1118. 
 
 — V. Daniel, 241, 1013, 1088. 
 
 — V. Kennedy, 856. 
 
 — V. Nickolds, 399, 1124. 
 
 — V. Watson, 257, 263. 
 
 — V. Walters, 826, 845, 875. 
 Hunting v. Sheldrake, 796. 
 Huntley v. Sanderson, 696. 
 
 — V. Russel, 536. 
 Hurd V. Fletcher, 784. 
 
 Hurle's Settled Estates, In re, 70, 1172, 
 
 1175. 
 Hurley v. Baker, 948. 
 Hurry r. Hurry, 1188. 
 Hurst, In re, 576. 
 
 — V. Hurst, 76, 1134, 1193. 
 Husband v. Davis, 607, 660. 
 Hutchinson, Ex parte, 81, 575. 
 
 — In re, 1175. 
 
 — V. Bowker, 963. 
 
 — f. Cathcart, 627, 630, 1216. 
 
 — V. Copostake, 358. 
 
 — V. East Lancashire By. Co., 
 
 445. 
 
 — V. Kay, 132, 536. 
 
 — r. Manchester Ky. Co., 445. 
 
 — r. Morley, 970. 
 
 — V. Morritt, 1102. 
 Huthwayte, In re, 487. 
 Hutton V. Cooper, 460. 
 
 — V. Mansell, 1212. 
 
 — V. Eosseter, 798. 
 
 Hutton r. Scaly, 1193. 
 
 — r. Warren, 963. 
 Hyde, Ex parte, 717. 
 
 — V. Dallaway, 110, 391, 1133. 
 
 — V. Edwards, 992. 
 
 — V. Manchester Coi-p., 917. 
 
 — V. Price, 627. 
 
 — V. Wrench, 230. 
 Hynes v. Redington, 622. 
 Hythe, Corp. of, r. East, 770, 983. 
 
 Ibbotson V. Rhodes, 98, 450, 841. 
 
 Iceley v. Grew, 163, 958. 
 
 Iggulden r. May, 966. 
 
 Imperial Gas Co. v. London Gas Co., 781 
 
 Inchbald v. Robinson, 921. 
 
 Incorporated Society v. Richards, 383, 
 
 386, 402. 
 Inge V. B. Wand. S. & Ry. Co., 57, 442. 
 Ingle, In re, 726. 
 
 — V. Richards, 32, 43, 44, 265. 
 Inman v. Inman, 4. 
 
 — V. Wearing, 1005. 
 Innes v. Jackson, 1064. 
 
 — V. Sayer, 964. 
 Irbvv. Irby, 838, 1215. 
 Ireland v. Bircham, 781, 784, 785. 
 Ireson v. Pearman, 454. 
 
 Irnham, Lord, r. ChUd, 1236, 1046, 1000. 
 
 Irvine r. Kirkpatrick, 1053. 
 
 Isle of Wight Ferry Co., In re, 470. 
 
 Ithel V. Potter, 235. 
 
 Ithell V. Beane, 599. 
 
 Ivemey, Ex parte, 684. 
 
 Iven r. Elves, 563. 
 
 Jack V. Armstrong, 684, 856. 
 .Jackson's, S., Mortgage, In re, 1185. 
 Jackson, Ex parte, 513. 
 
 — V. Cater, 1042. 
 
 — V. Craig, 1021. 
 
 — V. Grant, 1018. 
 
 — r. Jackson, 222, 923, 926. 
 
 — V. Lever, 250, 1081. 
 
 V. Duke of Newcastle, 359. 
 
 — v. Mulfield, 1221. 
 
 — V. North Wales Ry. Co., 235. 
 
 — V. Ogg, 398. 
 
 — V. Oglander, 215, 226, 228, 234, 
 
 1034. 
 
 — V. Petrie, 987, 1121. 
 
 — V. Rowe, 832, 861, 864, 868. 
 
 — V. Tumley, 1021. 
 
 — r. Whitehead, 109, 155. 
 Jacob z-. Kirk, 217, 225. 
 .Jacobs r. Richards, 1018. 
 Jacfpiet V. Jacquet, 381. 
 James, Robert, In re, 1180. 
 
 — Ex parte, 32, 43, 40. 
 
 — r. James, 475, 479, 1194. 
 
 — r. Lichfield, 452, 866, 1072, 1077. 
 
 — r. Plant, 374, 538, 539. 
 
 — r. Rice, 129. 
 
 — r. Salter, 379, 387, 400. 
 
 — V. Shore, 237. 
 
 — V. Whitbread, 907.
 
 Ixii 
 
 TABLE OF CASES. 
 
 Jameson v. Stein, 506, 941. 
 .Tarmain v. Engelstone, 409, 950. 
 Jauncey v. Knowles, 799. 
 Jay v. Richardson, 767. 
 Jaynes v. Hughes, 386. 
 Jeakes v. White, 200, 949, 975. 
 Jeans v. Cooke, 931, 933, 934, 935. 
 Jefferson v. Tyi-er, 62. 
 Jeffery v, Stephen.s, 1014. 
 Jeffreys v. Connor, 660. 
 
 — V. Maclin, 324. 
 
 — V. Small, 925. 
 Jeffries v. Williams, 368. 
 Jenkin v. Row, 1192. 
 
 — V. Vaughan, 908. 
 Jenkins v. Briant, 796. 
 
 — V. Gething, 536. 
 
 — V. Green, 219. 
 
 — r. Herries, 1138. 
 
 — V. HUes, 1113. 
 
 — V. Hutchin.son, 186, 947. 
 
 — ■ V. Jones, 65, 71, 72, 330. 
 
 — V. Keymis, or Keymes, 898, 903. 
 
 — V. Portman, 272. 
 Jenkinson, In re, 275. 
 
 — V. Pepys, 111, 1038. 
 
 — V. Watts, 267. 
 Jenkyns v. Bushby, 882, 883. 
 Jenner v. Jenner, 523, 744, 753. 
 Jennings v. Blincome, 808. 
 
 — V. Bond, 838, 863. 
 
 — V. Broughton, 104, 137, 798, 799, 
 
 1056. 
 
 — r. Hopton, 1098. 
 Jermy v. Preston, 260. 
 Jerrard r. Sandei-s, 832. 
 Jerrett v. Weare, 783. 
 
 Jersey, Earl of, r. Briton Ferry Floating 
 
 Dock Co., 742. 
 Jervis v. Tomlinson, 1089. 
 Jervoise r. Duke of Northumberland, 320, 
 
 1099, 1139. 
 Jesus CoUege, £x jmHc, 666. 
 Jeudwine v. Alcock, 1110, 1111. 
 
 — V. Slade. 102. 
 Jewell V. Christie, 626. 
 Jillard V. Edgar, 719, 798. 
 Job V. Banister, 170, 1128. 
 Jodrell V. Jodrell, 813. 
 Johns r. Mason, 1018. 
 Johnson v. Fesemeyer, 39. 
 
 — r. GaUagher, 1004. 
 
 — r. Holdsworth, 459, 488. 
 
 — r. Johnson, 591, 956. 
 
 — r. Kennett, 597, 599, 600, 620. 
 
 — V. Kershaw, 901. 
 
 — V. Lawson, 348. 
 
 — V. Legard, 895, 901, 999, 1046, 
 
 1140. 
 
 — V. Nott, 808. 
 
 — r. Pye, 4. 
 
 — r. Roberts, 180. 
 
 — V. Smart, 122. 
 
 — V. Smiley, 151, 163. 
 
 — V. St. Peter's, Hereford, 814, 
 
 — r. Webster, 729. 
 
 Johnson's Settlements, 665. 
 
 Johnston r. Todd, 347. 
 
 Johnstone r. Baber, 63, 1196, 1224. 
 
 — V. Hall, 505, 774, 775. 
 JoUand r. Stambridge, 853, 857, 859. 
 Jolly r. Arbuthnot, 810. 
 
 — V. Hancock, 315, 573. 
 Jones' Estate, In re, 672, 715, 1200. 
 
 — Ex parte, 388. 
 
 — In re, 254, 584, 670, 671, 723, 724, 
 
 726, 1198. 
 
 — V. BaUey, 475, 1194. 
 
 — V. Barkley, 958. 
 
 — V. Bone, 123. 
 
 — V. Davis, 271. 
 
 — V. Downman, 184. 
 
 — V. Dyke, 177. 
 
 — V. Edney, 118, 123. 
 
 — V. Evans, 1066. 
 
 — V. Farrell, 1125. 
 
 — V. Giles, 645. 
 
 — V. Higgins, 50. 
 
 — r. Flint, 203. 
 
 — V. Jones, 451, 622, 707, 837, 838. 
 
 — V. Kearney, 11, 809. 
 • — V. Keene, 107. 
 
 — V. King, 791. 
 
 — V, Le^\is, 502, 715, 721, 722. 
 
 — V. Littledale, i^'47. 
 
 — V. Lock, 900, 929. 
 
 — "v. Matthie, 71. 
 
 — V. Mudd, 628, 636. 
 
 — V. Nanney, 124, 181. 
 
 — V. Newman, 964. 
 
 — t\ Orchard, 970, 
 
 — V. Powles, 826. 
 
 — V. Price, 305, 598, 1138. 
 
 — V. Pugh, 882. 
 
 — V. Ricketts, 755. 
 
 — V. Roe, 810. 
 
 — r. Ryde, 591. 
 
 — V. Smith, 824, 862, 875. 
 
 — V. Stanley, 824. 
 
 — V. Tapling, 358. 
 
 — V. Williams, 868, 869, 1203. 
 Jordan v. Jones, 1064, 1220, 1221. 
 
 — V. Sawkins, 1036. 
 Jorden v. Money, 798, 799. 
 Jortin V. S. E. Ry. Co., 488. 
 Jowett V. Board, 268. 
 
 Joy V. Birch, 822. 
 Joyce, In re, 583. 
 
 — V. De Moleyns, 412, 832, 833, S34, 
 
 835. 
 Joynes v. Statham, 1037. 
 Jumpson V. Pitchers, 281, 283, 389, 1109, 
 1221. 
 
 Kay r. Johnson, 926, 988. 
 Keates v. Earl Cadogan, 92, 94. 
 
 — _ r. Lyon, 692, 767, 769, 774. 
 Keatinge r. Keatinge, 1219. 
 Keech v. Sandford, 34. 
 
 Keeles, In re, 591. 
 Keeling v. BrowTi, 616. 
 Keenan v. Handley, 759,
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Keightley, Ex parte, 66. 
 Keke^vich v. Manning, 895, 900. 
 
 — V. Marker, 68. 
 Kelk V. Pearson, 359, 360. 
 Kell V. Nokes, 949, 950, 972. 
 Kelly V. Jackson, 883. 
 
 — V. Webster, 200. 
 Kelner v. Baxter, 58. 
 Kelsey, In re, 579, 580. 
 Kelson v. Kelson, 900. 
 Kenneys v. Proctor, IS 2. 
 Kemp V. Sober, 505, 773, 774. 
 Kempson v. Ashbee, 753, 754. 
 Kendall v. Beckett, 749, 751, 982, 1008. 
 
 — V. Hill, 168. 
 
 — V. Hulls, 879, 881. 
 Kidderminster, Mayor of, v. Hardwick, 235. 
 Kinnaird v. Christie, 145. 
 
 Kennard, In re, 1143. 
 Kennedy v. Daly, 905. 
 
 — V. Green, 415, 565, 868, 879. 
 
 — V. Lee, 207, 231. 
 Kenney v. Wexham, 633, 987, 10S6. 
 
 — z'. Brown, 842, 876, 911. 
 Kensington, Lord, v. Boiiverie, 941. 
 Kent V. Riley, 909. 
 
 Kenworthy v. Schofield, 182, 221, 232. 
 Keogh V. Keogh, 1223. 
 Keon V. Magawly, 600. 
 KeppcU V. Bailey, 541, 767. 
 Kerkin v. Kerkin, 320. 
 Ker, In re, 724, 726. 
 
 — V. Cloberry, 1075. 
 
 — V. Lord Dimgannon, 874. 
 
 — V. Brown, 688. 
 
 — V. Gillespie, 881. 
 
 Kerr v. Pawson, 166, 290, 1075, 1106, 
 
 1139. 
 Kerrey Glazier, In re, 699. 
 Kerrison v. Dorrien, 889. 
 Kershaw r. Kalow, 71, 86. 
 
 — r. Kershaw, 634, 635. 
 Ketley's or Ketsey's Case, 25, 26. 
 Keyse v. Heydon, 150, 152, 279, 1098. 
 
 — V. Powell, 115, 389. 
 Kiddill V. Famell, 900. 
 Kilderbee ?'. Ambrose, 352. 
 Ivillick V. Flexney, 35. 
 ICilpin r. KUpin, 932, 934. 
 Kimberley v. Jennings, 1051. 
 Kinderley v. Jervis, 481, 622. 
 King, In re, 4, 841. 
 
 — V. Cotton, 899. 
 
 — r. Hamlet, 752, 756. 
 
 — V. Heenan, 56. 
 
 • - V. Jones, 782, 788, 791, 792. 
 
 — V. King, 439, 967, 1086, 1097, 1136. 
 
 — V. Leach, 1221. 
 
 — V. Malcott, 1219. 
 
 — V. Moody, 286. 
 
 — r. Rochdale Canal Co., 992. 
 
 — V. Savery, 39, 41, 751, 757. 
 
 — V. Smith, 251. 
 
 — V. Wilson, 118, 423, 424, 651, 652. 
 
 — V. Wycombe Railway Co., 212, 
 King's Mortgage, 586. 
 
 Kiugdome v. Bridges, 933. 
 Kingdon v. Nottle, 791. 
 Kingsley v. Young, 164, 1008, 1077. 
 King's College, £x parte, 715. 
 
 — Aberdeen r. Hay, 775, 777. 
 
 Kingsford v. BaU, 273. 
 
 — V. G. W. Railway Co., 968. 
 KingmilH'. Millard, 165. 
 Kinnaird r. Christie, 1222. 
 Kintrea v. Preston, 279. 
 
 Kirby v. Hansaker, 783. 
 Kirk V. Clarke, 901. 
 Kirkman v. Booth, 87, 181. 
 Kirkwood r. Lloyd, 401. 
 
 — V. Thompson, 36, 38. 
 Kirtland v. Pounsett, 252, 439, 958. 
 Kirwan r. Daniel, 901. 
 
 Kitchin v. Irving, 855. 
 
 Knapp V. St. Mary Willesden, 292. 
 
 Knatchbull v. Grueber, 433, 438, 1062, 
 
 1075, 1088. 
 Knight V. Barber, 108. 
 
 — V. Boughton, 813. 
 
 — V. Bowyer, 241, 330, 382, 393,- 
 
 867. 
 
 — v. Bro^^Tie, 19. 
 
 — V. Crockford, 217, 959. 
 — ■ V. Frampton, 274. 
 
 — V. Harden, 1130. 
 
 — V, Majoribanks, 3G, 747, 759, 
 
 1081, 1224. 
 
 — V. Pocock, 740, 1219, 1225. 
 
 — V. Marquis of Waterford, 355. 
 Knollys v. Alcock, 256, 257. 
 
 — V. Shepherd, 263, 264. 
 Knott, Ex parte, 830, 831. 
 
 — V. Cotter, 1196, 1222. 
 Knowles v. Haughton, 1045. 
 
 — V. Michel, 204. 
 Knox V. 'Brown, 1129. 
 
 — V. Kelly, 488. 
 
 — v. Turner, 758. 
 
 Lake v. Dean, 129, 421. 
 
 — V. E. C. Ry. Co., 712. 
 
 — V. Gibson, 923, 926. 
 Lamas r. Bailej', 929. 
 Lamb v. Newbiggin, 364. 
 Lambe v. Orton,^343, 1109. 
 Lambert v. Rogers, 412. 
 Lamond v. Davall, 163. 
 Lamplugh v. Lamplugh, 933 .936. 
 Lancashire & Y. Ry. Co., In re, 663. 
 L. & Y. Ry. Co. V. Evans, 210, 1129. 
 Lancashire & Carlisle Ry. Co. i'. L. & N. 
 
 W. Ry. Co., 190. 
 Lancaster v. De Trafford, 984. 
 Lancefield v. lergulden, 270, 622. 
 Landell %: Baker, 1189. 
 Lands' trust, In re, 721. 
 Lane r. Debenham, 161, 608, 1133 
 
 — V. Dighton, 939. 
 
 — V. Horlock, 129. 
 
 — r. Jackson, 456, 832, 337, 871, 878. 
 
 — 7-. Smith, 255. 
 Lang V. Gale, 427,
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Langford v. Mahony, 499. 
 
 — V. Pitt, 264, 265, 1098. 
 
 — V. Selmes, 115, 123, 253, 1073, 
 
 1140. 
 Langham v. G. N. Ry. Co., 442, 1133. 
 Langhome v. Harland, 460. 
 Langley v. Fisher, 825, 1124. 
 
 — V. Hammond, 539. 
 Langslow v. Cox, 279. 
 Lang-mead, In re, 597. 
 Langridge v. Levey, 804. 
 JjangstafE v. Nicholson, 221. 
 Langstroth v. Toulmin, 946. 
 Langton v. Hughes, 970. 
 
 _ V. Langton, 400, 1192. 
 
 — V. Tracy, 800. 
 Landsdown v. Elderton, 1227. 
 
 — V. Lownsdown, 806. 
 Lantsbery r. Collier, 62. 
 Lanyon v. Toogood, 202. 
 Lapham v. Pike, 333. 
 Lapierre i: M'Intosh, 22. 
 Lapsley v. Grierson, 338. 
 Large's case, 19. 
 
 Larkin v. Lord Rosse, 1075, 1141. 
 
 Laslett V. Cliffe, 1192. 
 
 Lassels i: Catterton, 787. 
 
 Lassence r. Tierney, 570, 999, 1000, 1027. 
 
 Latham, Ex parte, 1081. 
 
 Lathropp's Charity, Jn re, 664, 716. 
 
 Latimer v. Batson, 907. 
 
 La Touche v. Earl of Lucan, 890. 
 
 Lavender v. Stanton, 596. 
 
 Laverick, In re, 721. 
 
 Law, In re, 69, 1172. 
 
 — V. Bagwell, 380. 
 
 — V. Law, 286. 
 
 t\ The Indisputable Life Assurance 
 
 Co., 906. 
 _ V. Urlwin, 138, 1069, 1099, 1140. 
 Lawes v. Bennet, 257, 263. 
 
 — V. Lush, 1141. 
 Lawrance v. Galsworthy, 40. 
 Lawrence v. Ivnowles, 83, 254. 
 Lawrenson v. Butler, 1071. 
 Lawrie v. Lawrie, 352. 
 Lawton's estate. In re, 813. 
 
 — V. Campion, 753. 
 Layard v. Maude, 845. 
 Laj'field, Rv parte, 721. 
 Laythoarp v. Bryant, 225, 231,_312. 
 Lea, Ex parte, the Eector of, 673. 
 Lea's Trust, In re, 585, 591. 
 Leach v. Leach, 347. 
 
 _ ■ V. MuUett, 139. ^ 
 Leader v. Ahearne, 885. 
 Leather Cloth Co. v. Hieronimus, 966. 
 
 r. Lorsont, 773. 
 
 Lechmere v. Brasier, 1057, 1112, 1209. 
 
 — V. Brotheridge, 10, 571. 
 
 — V. Earl of Carlisle, 59, 941, 
 
 942, 943. 
 _ r. Clamp, 584, 591, 12G9. 
 Lecoy v. Mogford, 123, 167. 
 Lee, Ex parte, 81. 
 
 — V. Flood, 932. 
 
 Lee V. Hemingway, 225. 
 
 — V. Hewlett, 99, 451, 839. 
 
 — V. Green, 853. 
 
 — V. Head, 1019. 
 
 — r. Mnnn, 948. 
 
 — V. Ilisdon, 204. 
 
 — V. Young, 87. 
 Leech v. Leech, 614, 890. 
 Leedham r. Chawner, 63. 
 
 Leeds, Duke of, v. Lord Amherst, 48, 387. 
 
 — V. Burrows, 224. 
 
 — & Thirsk Ey. Co. v. Fearnley, 26. 
 Lees V. Coulton, 1188. 
 
 — V. Nuttall, 184. 
 Lacey, Ex parte, 32. 
 
 ~ r. Hill, 543. 
 
 — V. Ingle, 592, 732, 860. 
 Lachlan v. Reynolds, 114, 1112, 1211. 
 Lacon v. Allen, 867. 
 
 — r. Mertins, 440, 1023, 1026. 
 Ladyman v. Grave, 356, 358, 366, 374, 375. 
 Lafone *. Falkland's Islands Co., 881. 
 Laing's Settled Estates, In re, 1173. 
 Laird v. Bkkenhead R. Co., 1032. 
 
 — V. Pim, 957, 958, 959. 
 Lake v. Brutton, 103, 885. 
 
 — V. Craddock, 925. 
 Lefroy v. Lefroy, 1202. 
 Legal V. Miller, 1014. 1043. 
 
 Legg r. Belfast, &c.. Railway Co., 978. 
 
 — In re, 573. 
 Legge's Estate, In re, 719. 
 
 — Settled Estates, In re, 1175. 
 ■ — V. Croker, 801. 
 
 — V. Edmonds, 337. 
 Leggott V. Metrop. R. Co., 634. 
 Le Grand v. Whitehead, 1114. 
 Leif child's case, 966. 
 
 Leigh's Estate, In re, 664. 
 
 Leigh, Lord v. Lord Ashburton, 76, 1006. 
 
 — V. Lloyd, 78. 
 Leland v. Griffith, 1210. 
 Leman, Ex parte, 832. 
 
 — V. Whitley, 931. 
 Lempster, Lord v. Lord Pomfret, 410. 
 Lench v. Lench, 931, 932, 939. 
 Lenehan r. M'Cabe, 853, 878. 
 
 Le Neve r. Le Neve, 853, 858, 878. 
 Lennard v. Robinson, 948. 
 Lennon v. Napper, 418, 421. 
 Leominster C. Co. v. Shrewsbuiy Railway 
 
 Co., 214, 992. 
 Leng V. Hodges, 345. 
 Leonard v. Leonard, 806. 
 Leroux r. Brown, 197. 
 L'Estrange v. L'Estrange, 186. 
 Leslie r. Thompson, 134, 646, 652, 1021. 
 Lester v. Foxcroft, 1024. 
 Lestnrgeon r. Martin, 430, 1098. 
 Lethbridge v. Kirkm"h,n, 141, 145, 150, 
 
 155, 646. 
 Letts V. Hutchins, 582. 
 Leuty r. Hillas, 120, 804, 807, 1009. 
 Levy r. Lindo, 419. 
 
 — V. Pendergrass, 80. 
 Lewers v. Earl of Shaftesbiu-y, 770, 982.
 
 TABLE OF CASES. 
 
 Ixv 
 
 Lewes' Trusts, In re, 343. 
 Lewin v. G-uest, 282, 1077, 1130. 
 Lewis, £.c parte, (JO, 83, 175, 568. 
 Lewis V. Bond, 95, 117, 1089. 
 
 — r. Braithwaite, 115. 
 
 — V. Campbell, 779, 793. 
 
 — r. Dmicombe, 394, 469, 1220. 
 
 — - r. Dyson, 482. 
 
 — r. Hill, 943. 
 
 — V. Hilluian, 44. 
 
 — V. Lane, 931. 
 
 — V. Lewis, 820, 821. 
 
 — r. Loxham, 1129. 
 
 — V. Macldocks, 940. ' 
 
 — r. Marshall, 963. 
 
 — r. Nicholson, 18(5, 947, 96G. 
 
 — r. Peake, 793. 
 
 — r. Eees, 902. 
 
 — V. S. W. Eailway Co., 127. 
 Lewis V. Thomas, 382, 38(3. 
 
 — V. Tucker, 630. 
 
 Leyland v. Illingworth, 140, 654, 1132. 
 
 Liddiard v. Gale, 237. 
 
 Life Assn. of Scotland v. Liddall, 48, 49, 
 
 51, 382. 
 Lightfoot V. Heron, 996, 1039, 1044. 
 Lilford, Lord, v. Po^vys Keck, 733, 818. 
 LUl V. Robinson, 1133. 
 Lillie V. Legh, 1089. 
 
 Lincoln, Earl of, v. Arcedeckne, 1099, 
 1138. 
 
 — r. Wright, 1023,1024,1035,1054 
 Linden, Exj)arte, 730. 
 
 Lindsay r. Direct London, &c., Eailway 
 
 Co., 626, 961. 
 Lindsay r. Lynch, 1026, 1034. 
 Lineham r. Cotter, 1073. 
 Lipijiucott V. Smyth, 82. 
 Lisl)urne v. Davies, 165, 335. 
 Lister's Hospital, In re, 609. 
 
 — r. Leather, 1129. 
 
 — r. Pickford, 381. 
 Lister v. Tidd, 99. 
 
 — r. Turner, 889. 
 Litchfield v. Brown, 630. 
 
 Little Stepney, Ex parte, the Eeetor of, 
 
 662, 665. 
 Liverpool, &c,, Association v. Fairhurst, 
 
 4,n. 
 
 Liverpool Banlc v. Turner, 855. 
 Liverpool, Corporation of. Ex parte, 665. 
 
 — Improvement Act, In re, 708, 
 
 712, 714. 
 
 — Eailway Co., //; re, 714, 716. 
 
 — Dock Acts, In re, 663, 669. 
 
 — Marine Credit Co. v. Wilson, 
 
 855. 
 Livesey v. Harding, 99, 413, 1222. 
 Livington v. Ealli, 141. 
 Llewellyn r. Earl of Jersey, 530, 531. 
 
 — r. Mackworth, 381. 
 
 — r. Eons, 813. 
 Lloyd, Ex parte, 132. 
 
 — V. Adams, 973. 
 
 — r. Attwood, 730, 844, 870. 
 
 - V. Baldwin, 599. 
 VOL. I, 
 
 Lloyd V. Banks, 99, 850, 860. 
 
 — t\ Collett, 421. 
 
 — r. Griffith, 545, 552, 1119. 
 
 — r. Lloyd, 274, 516, 810, 811, 961, 
 
 1041. 
 
 — i: L. C. & D. Ey. Co., 773, 775. 
 
 — r. Tomkies, 783. 
 
 — r. Wait, 348, 349. 
 
 — V. Wilkes, 1087. 
 Load V. Green, 759. 
 Loaring, Ex parte, 734. 
 Lobb V. Stanley, 233. 
 Lock r. De Burgh, 813. 
 
 — r. Furze, 792, 956. 
 
 — r. Lomas, 610, 1134. 
 Locke V. Matthews, 383. 
 Lockhart r. Hardy, 71, 919. 
 Lockington r. Shijiley, 851. 
 Lockwood, Ex parte, 663. 
 Lodge V. Lyseley, 461, 462, 1139. 
 Loffiis, V. Maw, 1027. 
 
 Loft, In re, 65. 
 
 Logan r. Le Mesurier, 221. 
 
 — 'c. Wrenhall, 1061. 
 Lomax, In re, 71 4. 
 
 Londesborough, Lord, v. Somerville, 89. 
 London, Bank of, v. Tyrrell, 40. 
 London, Bishop of. Ex parte, 663, 670, 
 
 718, 720. 
 
 London, Corporation of. Ex parte, 720. 
 
 Loudon, ALayor of, &c., r. Pcwterers' Co., 
 375. 
 
 London, Port of, Assce. Case, 435. 
 
 London and Bir. Ey. Co. ;•. Winter, ISS, 
 1056, 1115. 
 
 London and Brighton Ey. Co. v. Fair- 
 clough, 707. 
 
 London and N. W. Ey. Co., In re, 713, 717. 
 
 Loudon and S. W. Ey. Co., In re, 712. 
 
 — V. Blackmore, 7<53. 
 
 Loudon Bridge Act, In re, 547, 548, 712, 
 721. 
 
 London, Brighton, and S. Coast Ey. Co., 
 In re, 603, 713, 715. 
 
 London and Brighton Ey. Co. v. London 
 and S. W. Ey. Co., 1045. 
 
 London and Greenwich Ey. Co., Li re, 
 280, 626. 
 
 London and Greenwich Ey. Co. v. Good- 
 child, 764. 
 
 Loudon and N". W. Ey. Co. v. Corpora- 
 tion of Lancaster, 602. 
 
 London and S. W. Ey. Co., In re, 712, 717. 
 
 Loudon and S. W. Ey. Co. r. Bridger, 
 708, 1128. 
 
 Long, In re, 719. 
 
 — V. Bowling, 1005. 
 
 — r. Collier,^155, 1131, 1140. 
 
 — r. Fletcher, 1074. 
 
 — r. Storie, 473. 
 TiOngbottom v. Berry, 536, 567. 
 Lonchamps v. Fawcett, 964. 
 Longstaff's Settled Estates, In re, 1181. 
 Longworth's Estates, In re, 718. 
 Lonsdale, Lord, Ex parte, 720. 
 
 — v. Gaskarth, 221. 
 
 c
 
 Ixvi 
 
 Table of cases. 
 
 Lortl, Ex parte, 579. 
 
 — /,( re, 2-24. 
 
 — V. Lord, 197 1-201. 
 
 — r. Stepliens, 158, 6-19, lOSS. 
 
 — r. Wightwick, 61. 
 Loiighor Co. v. Williams, 778, 961. 
 Loughton, the Eector of, Ex paHe, 714, 
 
 721. 
 Loveday r. Chapman, 582, 693, 915, 916. 
 TiOvegrove v. Cooper, 1202, 1213. 
 Lovelace, //( re, 275, 276, 278. 
 LoveU r. Hickri, 104, 798, 1040, 1053. 
 
 — r. Smith, 363. 
 Lovelock V. Fraiiklyn, 959. 
 Lovering, Ex parte, 84, 273, 658, 795. 
 Lovett V. Lovett, 1008. 
 
 Low V. Xash, 394. 
 
 Lowe's Estate, Ex parte, 89. 
 
 — In re, 256, 1120. 
 Lowe r. Carfjenter, 374, 376. 
 
 — i: L. & X. W. Ily. Co., 190, 235. 
 
 — r. Swift, 995. 
 Lowndes' Trust, //;. re, 670. 
 
 — r. Lane, 114, 799. 
 Lowther r. Carlton, 878, 904. 
 
 — r. Lowther, 1080. 
 Lo^vry's Will, In re, 590. 
 
 — V. Lord Dufferin, 1031. 
 Loyd r. Griffith, 545, 552. 
 
 — r. Eead, 932, 933. 
 
 — r. Spillett, 939. 
 
 — V. Whittey, 1194. 
 Loyes v. Rutherford, 136. 
 Lucas' Charity, In re, 670. 
 
 — V. Denison, 392. 
 
 — V. James, 93, 230, 232, 1062, 1113. 
 — ■ V. Jones, 264. 
 
 Lucy, Ex parte, 892. 
 
 — r. Leraigton, 791. 
 
 Ludlow, Corporation of, v. Charlton, 1S3, 
 
 235. 
 Luff r. Lord, 42, 43. 
 Lufkin r. Nunn, 885, 887. 
 Lukey v. Hiygs, 432, 559, 560. 
 
 — V. 0'i)onnel, 239, 1080. 
 Lumley i: Wagner, 1049. 
 Lumsden r. Frazer, 256. 
 Liish's Estate, In re, 1221. 
 
 — Trust, /// re, 11, 450, 841. 
 Lushington r. Bold^-i-o, 346. 
 Lutwyche r. Winford, 1138, 1224. 
 Lycett r. Stafford and Uttoxeter Ev. Co., 
 
 447, 741, 1092, 109-3. 
 Lyddal r. Weston, 1101, 1106. 
 Lyddon r. Moss, 759. 
 Lyford r. Coward, 324. 
 Lyford's Estate, 341, 342. 
 
 — Charity, In re, 1224. 
 Lyle r. Richards, 304, 531, 965. 
 
 — V. Earl of Yarborough, 285, 289, 
 
 1131, 1132. 
 Lynch r. Joyce, 1181. 
 Lyne v. Lyne, 834. 
 Lyonr. Colvill, 1199. 
 
 — r. Dillimore, 359. 
 
 — V. Reed, 322. 
 
 Lys r. Lys, 11S6, 1188. 
 
 LJ^lsey 1'. Solby, 102, 777. 
 
 Lyster v. Dolland, 458, 925. 
 
 Lytton V. Gt. Northern Ry. Co., 989, 993. 
 
 Maber v. Maber, 396. 
 
 iMaberley r. Rolnns, ISO. 
 
 Macbryde v. Weeks, 291, 419, 423, 10S7. 
 
 Mackreth v. Symmons, 440. 
 
 ]\l'Bumie, Ex parte, 892. 
 
 M'Calmont v. Rankin, 854, 1015, 1046. 
 
 Z^IcCarogher /•. Whieldon, 68, 657, 1047. 
 
 :\l'Carthy v. Daunt, 396. 
 
 Macaulay, Ex parte, 669. 
 
 Macleod v. Annesley, 87. 
 
 :McCreight r. Foster, 246, 247. 
 
 McCuUoch r. Gregoiy, 161, 280, 309, 32J, 
 
 330, 416, 777, 1008, 1105, 1210. 
 M'Donald v. Hanson, 85. 
 JMcEwan r. Smith, 730. 
 
 — V. M'Kinty, 389, 395. 
 
 — r. Walker, 1140. 
 Macclesfield, Earl of, r. Blake, 1205. 
 ]\Iacdonnell r. Harding, 635. 
 Macdouyall r. Eaterson, 1016. 
 ilacfarlau r. Rolt, 330. 
 M'Gregor, Ex parte, 37, 66. 
 
 — V. Dover, &c., Ry. Co., 970. 
 McHenry r. Da vies, 1004. 
 ^lackay, Ex piarte, 568. 
 
 — V. Douglas, 906, 908. 
 Mackinnon r. Stewart, 824, 901. 
 Mackley r. Eattenden, 83, 273. 
 
 — V. Smith, 482. 
 ^lackrell v. H\int, 321, 1136. 
 Mackreth v. Symmons, 440, 730, 737, 738. 
 ■SlackriD, In re, 723. 
 
 Maclean v. Dunn, 188. 
 Macleay, In re, Addenda. 
 ]Maclurcan r. Lane, 522. 
 :*lc:Mahon r. Burchell, 926. 
 M'Minn v. M'Cormell, 484. 
 IMcMurray v. Spicer, 219. 423. 
 M'Xamara v. Arthiu-, 972. 
 
 — V. Williams, 1005. 
 M'Naughten r. Hasker, 1133. 
 McNeil's case, 106. 
 McNeillie v. Acton, 603. 
 McNicollr. Kay, 1131. 
 Macrae r. Ellerton, 1193. 
 
 M'Queen v. Earquhar, 329, 876, 1078, 
 
 1104, 1126, 1140. 
 INladdison v. Andrew, 933, 939. 
 
 — V. Chapman, 912, 940. 
 Madeley r. Booth,120, 138, 146,1073,1122. 
 :Magawley's Trust, //( re, 908. 
 Magdalen College ca.se, 890. 
 
 — Eresident of r. Attorney 
 
 General, 383. 
 !V[agee v. Atkinson, 185. 
 Magennis r. Fallon, 100, 24S, 426, 429, 
 
 441, 1074, llO'.t. 1112. 
 Magnay r. Mines Royal Society, 977. 
 IMagor r. Chadwick, 866. 
 Magiure v. Armstrong, 886. 
 
 — r. O'Reilly, 015
 
 TABLE OF CASES. 
 
 Ixvii 
 
 Mainprice v. Westley, 178, 191. 
 IMaitland r. Mackinnon, 535. 
 Major V. Ward, 72, 286, 333, 511, lll'l 
 Majoribanks r. Hovenden, 853, 851, 857, 
 
 879. 
 IMalachy v. Soper, 108. 
 Malcolm r. Charlesworth, 681, 713. 
 
 — V. Hcott, 963. 
 Malcobnson r. O'Dea, 367. 
 Maiden v. Fyson, 950, 1129. 
 
 — t: Merick or Menil, 743. 
 Malingf. HiU, 1125, 1140. 
 Malins v. Freeman, 182, 195, 1011, 1053. 
 MaUin, /«, re, 69, 1172. 
 Mallin's Settled Estates, 1177. 
 Maljjas r. Aolaud, 8(55. 
 Maltby v. Christie, 180, 
 
 r. llussell, 60. 
 :Man V. Ricketts, 312, 321, 1212, 1225. 
 ]\lanby r. Bewicke, 883. 
 Manby r. CJremonini, 961. 
 Manchester, &c., l!y. Co., Iii, re, 261, 
 670, 709. 
 V. Gt. Northern Ry. Co., 57. 
 
 — v. Sheffield & Lincolnshire. 
 
 Ey. Co., III. re, 663. 
 
 — & Southport Ry. Co., la re, 
 
 712. 
 Mandeno r. Mkndeno, 1191. 
 Mangles r. Dixon, 732, 838, 842. 
 Manley r. Bewicke, 382. 
 Mann r. Stephens, 767. 
 Manners v. Furze, 1203. 
 Manning-, £x parte, 630. 
 
 — V. Bailey, 132. 
 
 — V. GiU, 937. 
 
 — r. Phelps, 400, 405. 
 Manningford v. Toleman, 731, 838, 910, 
 
 941. 
 Mansel v. White, 1028. 
 Manser v. Back, 111, 112, 182, 183, 188, 
 
 1038. 
 
 — r. T>\x, 71, 883. 
 ^lausfield, Tiord, v. Ogle, 331, 167. 
 Maiit r. Leith, 611. 
 
 ]\raples r. I'epper, 558. 
 .M;irL;eris(jn v. Saxton, 850. 
 Marjorilmnks r. Hovenden, 879. 
 Marlier r. Kekewdch, 68. 
 
 — V. Marker, 49, 441. 
 Marlborough' !3 Estates, //; re, the Duke of, 
 
 662. 
 ^Marine Mansions Co., In re, 568. 
 Mark's Trusts, In re, 412. 
 Marlow v. Smith, 1209. 
 
 — r. Orgill, 905, 908. 
 Married Woman, In re, 57.5. 
 Maniott r. Anchor Revy. C'o., 73. 
 
 — r. Kirkham, 1193. 
 Marsh, />'.»; parte, 36. 
 
 — r. Bee, 828. 
 Marshall, Ex parte, 715, 721. 
 
 — V. Collett, 743, 1039. 
 
 — V. Lynn, 125, 962, 970, 075. 
 
 — r. Powell, 417. 
 
 — V. Sladden, 61, 86, 1124. 
 
 Marson v. L. C. D. Rv, Co., 213. 
 Marstonr. Roe, 184, 232, 268. 
 AFartin, Sophia, In re, 580. 
 31artin & Ornisbj', In re, 81. 
 
 — V. Cotter, 96, 114, 1071, 1075, 
 
 1077, 1079, 1106, 1140. 
 
 — r. Headon, 359, 771. 
 
 — r. L. C. & D. Ry. Co., 445. 
 
 — r. Martin, 890. 
 
 — V. MitcheU, 230, 1000, 1044, 
 
 1056, 1080. 
 
 — r. Pycroft, 1035, 1040, 1057. 
 
 — t: Roe, 536. 
 Martinez r. Cooper, 679, 844. 
 MartjTi V. Clue, 766. 
 
 — r. Macnamara, 240, 790. 
 Massy v. Bat well, 1223. 
 
 — r. Manney, 699. 
 Masten v. Cookson, 340. 
 
 Mather r. Fraaer, 132, 535, 566, 567. 
 
 — V. Norton, 53, 603, 1138. 
 
 — r. Priestman, 54, 67. 
 Malhias r. Mathias, 940, 943. 
 Matson v. Dennis, 660. 
 
 — V. Swift, 636, 1220. 
 Matthers v. Bowler, 736. 
 
 — r. Osborne, 69-3. 
 MatthewTnan's, Mrs., case, 1001. 
 Matthews v. Dana, 1095. 
 
 — V. Eraser, 906. 
 
 — V. Goodday, 1194. 
 Matthie v. Edwards, 71. 
 Matthison r. Clark, 86, 87, 181. 
 Mattock r. Kinglake, 960. 
 Maundrell v. Maundrell, 514. 
 ]Maundsell r. White, 216. 
 Maurice v. Wainwiight, 1216. 
 Maw V. Topham, 998, 1017, 1067. 
 Mawson r. Fletcher, 158, 159, 1067. 
 Maxfield v. Burton, 831. 
 Maxwell's case, 932. 
 
 IMaxwell's Trusts, In re, 813. 
 Maxwell i: Duare, 661. 
 
 — V. Hyslop, 819. 
 
 — '('. Port Tennant Co., 1018. 
 May r. G. W. R. Co., 762. 
 
 — r. May, 937, 1016. 
 
 — I'. Roper, 577. 
 IVlayfield r. Wadsley, 203, 205. 
 Maynard's case, 777, 804. 
 Meadows r. Tanner, 112, 195. 
 Mears r. Best, 1192. 
 Mcchelen r. Wallace, 205. 
 ^fedley r. llorton, 5(16. 
 Mellersh r. Keen, 72. 
 Mellingr. Bird, 714, 718. 
 
 — r. Leak, 385. 
 !Mellish r. Brooks, 395. 
 
 — r. IMotteux, 92. 
 Mellar r. Watkiiis, 199, 920. 
 Melward, IJx parte, 664. 
 Mendel, E.c parte, 795. 
 Menhcunot, Jane, K.r. parte, 574. 
 ]Menzies /'. ilacdonald, 273. 
 Merceron r. Dowson, 765. 
 Merchant Taylors' Co., In re, 714. 
 
 c 2
 
 Ixv 
 
 ,'Hl 
 
 TABLE OF CASES. 
 
 Merchant's Trading Co. v. Banner, 1040, 
 
 1052. 
 Meredith v. Meigh, 202. 
 Merry's Estate, In re, 1175, 1177. 
 Merry r. Nickalls, 987. 
 Merton College, In re, 720. 
 Messer r. Boyle, 475. 
 Metcalfe's Trust, 19. 
 Metcalfe v. Clough, 186. 
 
 — n Pulvertoft, 997. 
 Metherell, Ex parte, 669. 
 
 Metrop. Board of Works v. Metrop. Ry. 
 
 Co., 371, 533. 
 Jlette's Estate, la re, 666. 
 Metters •;•. Brown, 73. 
 Meux V. Bell, 858. 
 
 — r. Jacobs, 567, 568. 
 
 — r. Maltby, 866. 
 
 — r. Smith, 661. 
 
 Meynell r. Surtees, 230, 231, 1030, 
 
 1031. 
 Meyrick, In re, 586. 
 
 — r. Laws, 89. 
 Micklethwait v. Nightingale, 1040. 
 Micklethwaite, In re, 278. 
 
 Middle Level Commissioners, In re, 270, 
 
 719. 
 Midland Counties Ry. Co., In re, 668. 
 
 — V. Oswin, 7, 258, 
 
 259, 263. 
 
 — r.\Vestcoml3,709. 
 Middleton v. Magnay, 193, 440, 9S2, 983. 
 
 — V, Sherburne, 20. 
 
 — V. Wilson, 220. 
 
 — r. EHot, 413. 
 Mildmay v. Hungerford, 1039, 1054. 
 Mildred v. Austin, 480, 511. 
 Mileham, In re, 341. 
 
 Miles's Will, In re, 88. 
 Miles V. Dm-nford, 602. 
 
 — V. Gery, 220, 221, 222. 
 
 — r. Knight, 345. 
 
 — V. Langley, 453, 874. 
 
 — r. Miles, 270, 271. 
 Milfield, /rt?-e, 1221. 
 Mill V. Hill, 911. 
 
 — V. New Forest Commissioners, 372. 
 ]Miriar v. SmaU, 775, 777. 
 
 Millard, In re, 573. 
 Millard's Case, 832. 
 
 — V. Harvey, 1001, 1027. 
 Miller, Ex parte, 53. 
 
 — V. Cook, 130, 756, 758, 1031. 
 
 — V. Marriott, 1189. 
 
 — V. Pridden, 592, 606, 1213. 
 
 — V. Smith, 1208. 
 Millican v. Vanderplank, 1202. 
 Milligan v. Cooke, 1069, 1070. 
 Millington r. Thompson, 397. 
 MUlner's Estate, In re, 346. 
 Mills V. Auriol, 794. 
 
 — V. Oddy, 135, 192. 
 
 — V. Osborne, 613. 
 MartjTi r. Williams, 776, 780. 
 Martjrr v. Lawrence, 452, 532, 867, 874. 
 Maryon v. Carter, 418. 
 
 Maryport and Carlisle Railway Co., la re, 
 
 720. 
 Mason r. Armytage, 108, 182, 188, 195. 
 
 — r. Broadbent, 399, 400. 
 
 — r. Cole, 121. 
 
 — r. Corder, 1076. 
 
 — r. Franklin, 1007. 
 
 — V. Shrewsbury and Hereford Rail- 
 
 way Co., 367. 
 
 — r. Hill, 364. 
 Massey, In re, 724, 726. 
 Milne v. Marwood, 103. 
 Milnes v. Branch, 776. 
 
 — r. Gery, 624. 
 3Iillward r. Earl of Thanet, 1085. 
 Mill ward's Estate, In re, 1172. 
 ]\Iinchin's Estate, la re, 586. 
 Minchin r. Nance, 627, 650. 
 
 — r. Vance, 303. 
 Mines, Case of, 1106. 
 
 Mines Royal Society v. Magnay, 976. 
 Minet r. Leman, 63, 89, 151, 23S, 1102, 
 
 1107, 1139. 
 Minor, Ex parte, 1200. 
 Minshull v. Oaks, 765, 766. 
 Minton v. Kii-kwood, 512, 1003, 1118, 
 
 1219. 
 Mirehouse v. Scarf e, 616. 
 Mirfin, In re, 579. 
 MitcheU's Claim, 397. 
 Mitchell V. Hayne, 179. 
 
 — r. Neale, 569. 
 
 — V. Newall, 721. 
 
 — V. Steward, 774. 
 Mittelholzer r. Fvdlarton, 708. 
 Moeatta v. Mui-gatroyd, 917. 
 Modlen v. Snowball, 123. 
 Moeser r. Wisker, 1227. 
 Moflett r. Whittaker, 903. 
 Moggridge I'. Jones, 959, 961. 
 I\Iole r. Smith, 514, 1114, 1139. 
 Moles worth v. Opie, 1205. 
 Mollett r. Wakerbath, 236. 
 MoUoy V. French, 838. 
 
 — r. Sterne, 150. 
 Molony v. Kernan, 35. 
 Molton ;•. Cami-oux, 6. 
 Molyneux, Ex j)arte, 721. 
 
 Monck V. Huskisson, 322, 628, 636, 1140. 
 iloney, In re, 666. 
 
 — V. Jorden, 798, 842. 
 Monk r. Huskisson, 628, 636. 
 Monlvton v. Atty. General, 350. 
 
 Monro v. Taylor, 154, 219, 220, 226. 248, 
 
 426, 630, 966, 1033, 1039, 1053, li31. 
 Monsell ?•. Ai-mstrong, 606, 608. 
 ]Montgomery, Ex p>arte, 86. 
 ]\lony[jeimy v. Bristow, 268. 
 
 — V. Monypenny, 522, 562, 563. 
 
 Moodie v. Bannister, 386. 
 Moody v. Corbett, 761, 763. . 
 
 — r. Walters, 1139. 
 Moor r. Raisbeck, 263. 
 
 — r. Roberts, 957. 
 Moore v. Bannister, 397. 
 
 — v, Campbell, 970,
 
 TABLE OF CASES. 
 
 Ixix 
 
 Moore v. Creed, 240. 
 
 — V. Culverhouse 679. 
 
 — V. Edwards, 1034. 
 
 — V. Greg, 272, 559. 
 
 • — V. Marrabee, 1086. 
 
 — r. Moore, 820. 
 
 — V. Perry, 1194. 
 
 — V. Rawson, 358. 
 Mooi-ecock v. Dickins, 853. 
 Moreton v. Holt, 467. 
 
 Morgan's Settled Estate, Li re, 1179. 
 Morgan, Ex parte, 45 . 
 
 — V. Curtis, 293. 
 
 — V. Griffith, 966. 
 
 — %: Great Northern Kj'. Co., 1134. 
 
 — r. Holford, 227, 231, 267. 
 
 — V. Hunt, 783. 
 
 — V. Mihnan, 211, 220, 221, 222, 
 
 260, 1031. 
 
 — V. Morgan, 390, 911. 
 
 — V. Pike, 701, 798. 
 
 — r. llutsen, 76. 
 
 — V. Shaw, 1090. 
 
 — V. Thomas, 581. 
 
 Morrice y. The Bishop of Durham, 1206. 
 INIorison r. Tumour, 233. 
 Morland v. Cook, 175, 453, 454, 765, 768, 
 110,17'^, 871. 
 
 — r. Isaac, 758. 
 Morley v. Attenborough, 145. 
 
 — r. Clavering, 96, 558, 1089. 
 
 — V. Cook, 126, 161, 162. 
 
 — r. Morley, 941. 
 Morningfcou, Ex purte, 590. 
 
 V. Keane, 942. 
 Morphett v. Jones, 1024, 1031. 
 Morrell v. Frith, 386. 
 
 — V. Wootten, 732. 
 Morris, Ex parte, 714. 
 
 — V. Barrett, 924, 925, 926. 
 
 — V. Bull, 1212. 
 
 V. Clarkson, 1213. 
 
 — V. Davies, 336, 337. 
 
 — V. Edgington, 782. 
 
 — c. Ellis, 377. 
 
 — V. Kearsley, 145, 152, 279, 280, 
 
 286. 
 
 — r. Livie, 838. 
 
 — r. M'Neil, 1121. 
 Llorris v. Morris, 6o. 
 
 — t: Pre.ston, 1071. 
 
 — V. Timmins, 1085. 
 
 — v. Wilson, 964. 
 
 — V. Wood, 631, 638. 
 Morrison v. ^^nold, 1008. 
 
 — V. Barrow, 1100, 1101 
 Morse v. Faulkner, 808. 
 
 — r. Merest, 1023. 
 
 — V. Royal, 34, 48, 105. 
 
 — V. Tucker, 796, 797. 
 Morshead r. Frederick, 1227. 
 Morson v. Blaine, 26. 
 Mortimer r. Bell, 112, 113, 194. 
 
 — r. Capper, 250, 1081. 
 
 — V. Hartley, 53. 
 
 — i: Orchard, 1014, 1130. 
 
 Mortimer ?•. Shortall, 744. 
 
 Mortlock V. Buller, 998, 10 47, 1051, 1053, 
 
 1058, 1064, 1069, 1074. 
 Morton v. Tibbet, 202. 
 
 — V. Woods, 253, 523, 811. 
 Moseley v. Hide, 147. 
 
 Moses V. M'Farlane, 945. 
 Moss, In re, 725. 
 
 — r. Barton, 209. 
 
 — r. Gallimore, 813. 
 
 — r. Matthews, 163, 193. 
 Moth V. Attwood, 754, 759. 
 Moule r. Garrett, 811, 921, 922. 
 Moulton V. Edmonds, 142, 293, 351, 401, 
 
 1112. 
 Mousley's Ti-usts, In re, 721. 
 INIower v. Orr, 52. 
 Moxey v. Bigwood, 1038. 
 Moxhayi'. Inderwick, 559, 560, 1011, 1086, 
 
 1119. 
 Moylan, //'- re, 30. 
 Moyse v. Giles, 923. 
 Muir V. Jolly, 730. 
 Mules V. Jennings, 275. 
 IMidhallen v. Marum, 20, 35. 
 MuUings r. Ti-inder, 84, 1100, 1102, 1109, 
 
 1127, 1138. 
 Mullins V. Hussey, 1211. 
 Mullock V. Jenkins, 20, 1046. ' 
 :\Iumford v. Stohwasser, 824, 830, 831. 
 Mumma v. Mumma, 932, 931, 936. 
 Mummery v. Paul, 804. 
 Mundel, In re, 584. 
 Munday v. JoUiffe, 1024, 1029, 1031. 
 Mimns V. Isle of Wight Ry. Co., 447, 74 1, 
 
 1092, 1093. 
 Murchie v. Black, 369, 538. 
 Murless r. Franklyn, 932, 933, 935. 
 Murley v. M'Dermott, 920. 
 
 — V. Sherren, 7. 
 Murphy, In re, 579. 
 
 — r. O'Shea, 35, 43. 
 Murray, In re, 727. 
 
 — V. Barlee, 1003. 
 
 — v. Currie, 187. 
 
 — V. Mann, 179. 
 
 — V. Palmer, 49, 747, 757, 758, 803. 
 
 — r. Parker, 964. 
 Murrell v. Goodyear, 1058, 1131. 
 Musadee v. Meerza, 912. 
 Muscham]) v. Bluet, 19. 
 Musgrave v. Dashwood, 993. 
 
 — V. McCullagli, 146. 
 Muskerry v. Chinnery, 886. 
 Muston V. Bradshaw, 412, 1003, 1005. 
 Mutlow v. Bigg, 381, 395. 
 
 MuttyhjU Seal v. Aimuudo Chundjr 
 
 Samlle, 932. 
 Myddleton v. Lord Kenyou, 891. 
 :\Iyers r. Watson, 1040. 
 Mynn v. Jolliffe, 186. 
 
 Nagle V. Baylor, 757, 1044. 
 Navin r. Prowse, 730, 733, 892. 
 Nanney v. Williams, 904, 911, 913. 
 Nantes v. Corrock, 1000.
 
 Ixx 
 
 TABLE OF CASES. 
 
 Nappor r. Lord AlUngton, 7SS. 
 Nash, //( re, 668, 719. 
 
 — r. Armstrong, 42.5, 9G2, 970, 97L 
 
 — r. Aston, 781, 787. 
 
 — r. Browaie, 145. 
 
 — r. Hodgson, 397. 
 
 — r. Palmer, 783, 787. 
 .— r. Turner, 312. 
 
 — r. Worcester Commissioners, 1122, 
 
 1194. 
 Natal Investment Co., //( re, 838.^ 
 National Exchange Company of Glasgow 
 
 -/'. Drew, 93, 802, 970. 
 Neachell, In re, 721. 
 Neal r. Mori-is, 822. 
 Neale v. Day, 905, 903. 
 
 — r. Mackenzie, 1069, 1088. 
 
 — V. Neale, 753. 
 
 — r. Parkin, 052. 
 
 — V. E,atcliffe, 961. 
 
 — V. Swind, 967. 
 Neame v. Moorsom, 352. 
 Neap v. Abbott, 1038. 
 Neate, In re, 724. 
 
 — r. Duke of Marlborough, 460, 474. 
 Neave v. Avery, 976. 
 
 Neddy Hall's Estate, In re, 319. 
 Neeld v. Duke of Beaufort, 183. 
 Neesom v. Clarkson, 47, 389, 438, 803, 
 
 864,868,912. 
 Neeves v. Burrage, 60, 975. 
 Neild's case, 885. 
 Nelson v. Bridges, 248, 982, 1117. 
 
 — r. CaUow, 62, 1139. 
 
 — r. Earl of Bridport, 1124, 1125. 
 
 — V. Nelson, 807. 
 
 — V. Page, 819. 
 
 — r. Stocker, 4, 841. 
 
 Nelthorpe r. Holgate, 96, 159, 185, 995, 
 1007, 1011, lOGO, 1070, 
 1071. 
 
 — r. Pennyman, 1227. 
 Nepean v. Doe, 343, 376. 
 Nervin r. Munns, 790. 
 Nesbett v. Myer, 1087. 
 Nesbitt V. Burrage, 750, 758. 
 Nesham r. Selby, 227. 
 
 Nether Stowey Vicarage, In re, 664. 
 
 Netherville Peerage, 320. 
 
 Neve r. Elood, 459, 481, 488, 854. 
 
 — r. PenneU, 582, 679, 680, 854. 
 New Brunswick, &c., Ey. Co. v. INIug- 
 
 geridge, 104, 799. 
 Newall r. Smith, 428, 1126. 
 Newbold v. Eoadknight, 256. 
 Newby v. Paynter, 646. 
 Newcastle, Duke of. In re, 474, 477. 
 Newell r. Eadford, 217, 963, 964. 
 Newenham r. Pemberton, 1002. 
 Newham r. May, 777, 804. 
 Newland v. Anon., 460. 
 Newlauds r. Holmes, 403. 
 Newman's Settled Estates, In re, 88, 
 664, 1178. 
 _ r. Kent, 917. 
 
 — r. Eogers, 419. 
 
 Newman r. Selfe, 1192, 1193. 
 
 — r. Warner, 608, 609. 
 
 — r. Wilson, 819. 
 
 Newry & Enniskilleu Ey. Co. r. Coombe, 
 
 26. 
 Newstead v. Searles, 895, 896, 897, 899. 
 Newton's Charity, In re, 1224. 
 Newton, Exfurtc, 716. 
 
 — r. Beck, 413. 
 
 — r. Grand Jimction Ey. Co., 462. 
 
 — r. Himt, 754, 755, 758. 
 
 — r. Newton, 412, 832, 834, 835. 
 
 — r. Preston, 931. 
 Nicholas r. Davies, 851. 
 NichoU r. Jones, 11, 999. 
 Nicholls r. Corbett, 150, 1060. 
 
 — r. Elford, 1133. 
 Nichols r. Gayford, 368, 369. 
 
 — r. Hawkes, 1138. 
 Nicholson r. Bradiield Union, 236. 
 
 — r. Hooper, 841. 
 
 — V. Knapp, 1095. 
 
 — r. Eose, 121. 
 
 — r. Tutin, 901. 
 
 — r. Wright, 1138. 
 Nicklin r. Williams, 369. 
 
 Nicholson r. Wordsworth, 438, 608, 1129, 
 
 1130, 1140. 
 Nicol, In re, 799. 
 
 NicoU i: Chambers, 141, 155, 163, 324. 
 NieU r. Morley, 6. 
 Nind v. Marshall, 790. 
 Nixon, In re, 338. 
 
 — r. Hamilton, 759, 853, 857, 858, 
 
 878. 
 Noble r. Brett, 99. 
 
 — V. Cass, 779, 797. 
 
 — r. Stow, 1216. 
 
 — r. Ward, 962, 970, 971, 1085. 
 Nock r. Newman, 282, 1059, 1112. 
 Noel r. Bewley, 323, 808, 809. 
 
 — r. Hoy, 1057. 
 
 — r. Jevon, 516. 
 
 — r. Ward, 410. 
 
 — V. Weston, 569. 
 Noke r. Awder, 779. 
 Nokes V. Gibbon, 272, 885. 
 
 — r. Lord Kilmorey, 420, 424, 1127. 
 Norcop's Trust, In re, 669. 
 Norfolk, Duke of, c. Worthy, 135, 654, 
 
 947, 948. 
 Norman r. Stiby, 797. 
 Norris r. Jackson, 983, 988. 
 Norris r. Le Neve, 880. 
 North r. Great Northern Ey. Co., 1133. 
 North-Eastern Ey. Co. r. EUiott, 309. 
 North Staff. Ey. Co., In re, 1. 
 
 — i'a;j>mrif,Landor,626. 
 
 — Ex 'parte Wood, 626. 
 North- Western Ey. Co. v. M'Michael, 20, 
 Northam r. Harley, 541. 
 Northampton G. L. C. r. Parnell, 798. 
 Northclitfe r. Warburton, 467. 
 Northwick, Ex 'parte, 663, 716. 
 
 Nott r. Eicard, 148, 423, 424. 
 Nottley v. Palmer, 669.
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Xouaille v. FHght, 109, 1070, 1076, 1138. 
 
 — r. Greenwood, 297, 1138, 1110. 
 Nune's estate, //( re, 1170. 
 Nmin r. Fabian, 102r., 1029, 1129. 
 
 — r. Hancock, 2, 1198, 1224. 
 
 — r, Ti'uscott, 1087, 10S9. 
 
 Nurse r. Lord Seymour, 121, 995, 103G. 
 Nuthrown v. Thornton, 985. 
 Xuttall /•. BraceweU, 301, 306, 541. 
 
 Oakden r. Pike, 120, 162, ISl, 420. 
 
 Ochiltree, Lord's case, 338. 
 
 Ockenden r. Henley, 163. 
 
 O'Connor, Arthur, In re, 568. 
 
 O'Connor r. Spaight, 204. 
 
 Offen r. Harman, 75. 
 
 Official Man. of Sheerness W. W. Co. r. 
 
 Poison, 151. 
 Og-den r. Battams, 822. 
 
 — V. Fossick, 1047. 
 
 — V. Laurie, 620. 
 
 Ogilvie r. Foljambe, 111, 207, 219, 228, 
 230, 233, 430, 553, 786. 
 
 — r. JeaiTreson, 880. 
 
 Ogle r. Earl Vane, 425, 971, 974. 
 O'Gorman r. Comyn, 892. 
 O'Hara's Tontine, 394. 
 O'Herlihy r. Hedges, 1060. 
 Ohrly r. Jenkins, 1134, 1135. 
 Oakden r. Clifden, 1138. 
 Okill r. Whittaker, 743, 745. 
 Oldfield V. Preston, 278. 
 
 — r. Round, 92, 117, 195, 453. 
 Oldin V. Lanibourne, 35. 
 
 Olding r. Smith, 184. 
 
 Oliver r. Court, 35, 49, 75. 
 
 Ollertou III re, 57 i. 
 
 Olliver V. King, 910. 
 
 Omerod v. Hardman, 1041. 
 
 Ommaney v. Stilwell, 342, 344. 
 
 Onions r. Cohen, 105. 
 
 Onley v. Gardiner, 374. 
 
 Onslow r. Lord Londesborough, 550, 561. 
 
 Ord V. Noel, 69, 79, 1047. 
 
 O'Eeilly r. Thompson, 1226. 
 
 Oriental Liland Steam Co. v. Briggs, 987. 
 
 Orlebar r. Fletcher, 253, 460, 996. 
 
 Onne r. Broughton, 957, 1089. 
 
 — V. Wright, 36, 919. 
 Ormerod, In re, 584. 
 Ormond, Lord, r. Anderson, 231, 232, 
 
 1033. 
 Orr V. Dickinson, 854. 
 Osbaldeston r. Askew, 1104. 
 Osbaldiston, Ex parte, 715. 
 Osborn r. Lea, 450, 842. 
 
 — V. Osborn, 1189. 
 Osborne v. Eales, 554. 
 
 — V. Foreman, 1190, 1202. 
 
 — r. Harvey, 143, 145, 436, 1090. 
 Osgood r. Strode, 895, 898. 
 
 O'Toole r. Browne, 269. 
 
 Otter V. Lord Vaux, 37, 788, SOS, 919. 
 
 Ousley r. Anstruther, 937, 1212. 
 
 Overhill, In re, 345. 
 
 Overton r. Banister, 3, 841, 
 
 Owen V. Body, 907. 
 
 — r. Da\-ies, 253, 630. 
 
 — r. De Beauvoh-, 377, 379, 494. 
 
 — r. Foulkes, 34, ]205. 
 
 — r. Homau, 862, 1003. 
 
 — r. O'de 952. 
 
 — V. Thomas, 208, 219, 231. 
 Owens V. Dickenson, 1003. 
 
 — r. Wynne, 915. 
 
 Oxenden r. Lord F^alniouth, 636, 1131. 
 Oxeuham v. Esdaile, 440, 566. 
 Oxford r. Pro vend, 92, 1033. 
 
 — Lord, r. Piodney, 817. 
 
 — W. & W. R Co., In re, 716. 
 Oxwick V. Brockett, 807. 
 
 — V. Plumer, 823, 875. 
 
 Packer, Hannah, In re, 574. 
 Padl:)ury r. (Jlark, 257. __ 
 Paddock r. Forrester, 372. 
 Padwick V. Hanslip, 1052. 
 
 — V. Duke of Newcastle, 458. 
 
 — r. Piatt, 1006, 1009, 1011. 
 Page, In re, 180, 181, 644. 
 
 — r. Adam, 160, 161, 162, 231, 597, 
 
 600, 614. 
 
 — r. Bennett, 170. 
 
 — r. Broom, 550. 
 
 — V. C!ooper, 79. 
 Paget V. Ede, 987. 
 
 — V. Foley, 400. 
 
 Paice V. WaUcer, 946, 947, 94S. 
 Pain v. Coombs, 216, 1025, 1029, 1035, 
 1089. 
 
 — r. Smith, 1194. 
 Paine v. Jones, 403. 
 
 — r. Meller, 247, 249, 
 I'ainter ;•. Newby, 161, 640, 1069. 
 Palairet r. Carew, 80, 581. 
 
 Palk V. Skinner, 373. 
 VdAwxp.v, Ex parte, 718. 
 
 — V. Goren, 249, 1207, 1210. 
 
 — %: Hendrie, 71. 
 
 — V. Temple, 163, 191, 425, 9G2. 
 Palmer's Will, In re. 1185. 
 Palmerston, Lord, Ex parte, 715. 
 
 — V. Turner, 128, 639. 
 
 Paramore v. Greenslade, 156, 708, 710, 
 
 1208. 
 Pardoe r. Bingham, 378. 
 P.aris C. C. v. Crystal Palace Co., 985, 
 
 1046. 
 Parish i: Sleeman, 169. 
 Parker, Ex parte, 580. 
 
 -- V. Carter, 831, 890, 902. 
 
 — V. Clarke, 826. 
 
 — n Farebrother, ISl. 
 
 — V. Frith, 419, 420. 
 
 — V. Gossage, 903. 
 
 — r. Mitchell, 374. 
 
 — V. Morrell, 1121. 
 
 — V. Patrick, 759. 
 
 — V. Roles, 454. 
 
 — r. Smith, 234, 996, 1024, 1026, 
 
 1034. 
 
 — V. Sowerby, 543.
 
 Ixxii 
 
 TABLi: OF CASES. 
 
 rarker r. StaniLaiul, 203. 
 
 — V. Taswell, 198, 220, 1033,-1053. 
 
 — r. Wliyte, 453, 767, 769, 770, 871. 
 Parke's Charitj', In re, 1224. 
 
 Parkes, Ex parte, 738. 
 
 Pavkhiirst r. Lowteii, 881. 
 
 Parkin r. Thorolcl, 418, 420, 423, 1087. 
 
 Parkinson r. Francis, 347. 
 
 — r. Hanbury, 36, 65, 72, 912. 
 Parks, In re, 673. 
 
 Parnther v. Gaitskell, 659. 
 Pan- v. Applebee, 1046. 
 
 — r. Eliason, 901. 
 
 — r. Jewell, 801, 1015. 
 
 — r. Lovegrove, 95, 152, 162, 281, 285, 
 
 296, 628, 641, 1098, 1110. 
 Parridge v. IJsboi-ne, 102. 
 Parrott r. Sweetland, 735. 
 Parry's Will, In re, 1175. 
 Parry r. Frame, 958. 
 
 — r. Wan-ington, 58, 88. 
 Parsons v. Freeman, 267, 817. 
 Partington's Estate, 664. 
 Partington, Ex parte, 81. 
 Partridge, In re, 573, 576. 
 
 — v. Foster, 474, 479. 
 
 — r. Scott, 374. 
 
 — V. Usborne, 102. 
 Pasley r. Freeman, 103. 
 Pasmore, Ex parte, 721. 
 Patch r. Ward, 411. 
 Patchett V. Holgate, 337. 
 Patching v. Dubbins, 767. 
 Pater v. Baker, 108. 
 Paterson v, Ayre, 952. 
 
 — r. Long, 117, 1005, 1070. 
 Paton T. Brebner, 1070. 
 
 Paton V. Rogers, 628, 637, 1109, 1112. 
 
 Pattenden v. Hobson, 58. 
 
 Pattison v. Graham, 1124. 
 
 Pawle V. Gunn, 187. 
 
 Pawsey v. Bai-nes, 394, 
 
 Payler, Ex parte, 66. 
 
 Payne v. Cave, 124. 
 
 — V. Compton, 832. 
 
 — T. Mortimer, 901. 
 Paynter v. Carew, 71. 
 Peacock v. Burt, 830, 838. 
 
 — r. Evans, 754. 
 
 — V. Penson, 121, 1005, 1046, 1050, 
 
 1071. 
 Pearce r. Gardner, 58. 
 T. Morris, .583. 
 
 — i: Pearce, 86, 883. 
 Pears v. Laing, 396, 403. 
 Pearsall, In re, 575. 
 
 Pearse v. Pearse, 329, 330, 1208. 
 Pearson r. Beck, 355. 
 
 — V. Benson, 40. 
 
 — r. Morgan, 98, 103, 842. 
 
 — r. SiJencer, 363, 453, 537, 538, 
 539. 
 
 Peart v. Bushel!, 435. 
 Pease r. Coats, 123, 772. 
 
 — r. Jackson, 731, 829, 845. 
 Peck V. Cardwell, 927. 
 
 Pcdder, Ex parte, 36. 
 Peechy's, Sir J., Case, 931. 
 Peek r. Matthews, 772, 773. 
 Peers r. Ceeley, 74, 85, 1125, 1137. 
 
 — V. Lambert, 1075. 
 
 — i: Sneyd, 1131, 1138. 
 
 Pegg V. Wisden, 409, 423, 424, 432, 822, 
 
 1099. 
 Pcgler V. White, 170. 
 Peirce r. Corf, 221, 225, 227. 
 Peles V. Jervies, 790. 
 Pell V. De Winton, 610, 613, 657. 
 
 — V. Northampton, &c., Ry. Co., 417, 
 
 741, 742,1091, 1092. 
 Pelly V. Bascombe, 385. 
 
 — r. Sichiey, 188. 
 
 — r. Wathen, 412. 
 
 Pember r. Mathers, 111, 558, 811, 1035. 
 
 Pemberton v. Barnes, 1186, 1188, 1190. 
 
 Pembroke r. Friend, 818, 820. 
 
 Pender, In re, 723. 
 
 Pendleton r. Rooth, 392. 
 
 Pendrell r. Pendrell, 337. 
 
 Penhall r. Ehdn, 905. 
 
 Penn r. Lord Baltimore, 987. 
 
 — r. Glover, 783. 
 Pennell r. INIillar, 757. 
 
 — V. Stephens, 871. 
 Pennial v. Harborne, 170. 
 Penny v. Allen, 327, 390, 911, 913. 
 
 — V. Pretor, 1220. 
 
 — ?•. Watts, 452, 832, 866, 869, 877. 
 Penruddock r. Hammond, 883. 
 
 Pepper r. Barnard, 292. 
 
 — V. Chambers, 968. 
 Peppercorn r. Peacock, 1102. 
 
 — r. Wayman, 63, 1139. 
 Perfect v. Lane, 749, 754, 755. 
 Pei-kes, Ex parte, 32. 
 Perkins v. Bradley, 878. 
 
 — V. Ede, 1075, 1210. 
 
 Perrin, In re, 460, 462, 579. ^ 
 
 Perring i: Trail, 20, 686. 
 Perry, In re, 667, 668. 
 
 — V. Edwards, 783. 
 
 — V. Fitzhowe, 199. 
 
 — V. HoU, 879. 
 
 — r. Meddowcroft, 822. 
 
 — V. Phelips, 940. 
 
 — r. Smith, 128, 637, 8S2. 
 Perry-Herrick r. Attwood, 730, 844. 
 Persse v. Persse, 753, 1116. 
 
 Perth Earldom, In re, 347, 348, 349. 
 Pet and Galley's Case, 787. 
 Peter i: Nicolls, 999. 
 Peters r. Anderson, 804. 
 
 — r. Bacon, 1188. 
 
 Peto V. Brighton, Uckfield, &c., Ev. Co. 
 1046. 
 
 — V. Gardner, 1223. 
 
 — V. Hammond, 175, 415, 733, 861, 864, 
 868, 869, 871, 875. 
 
 Petre v. Duncombe, 1005. 
 Petre v. Espinasse, 1054. 
 
 — r. Petre, 380, 382, 394. 
 Peyton's Settlement, In re, 79, 719.
 
 TABLE or CASES. 
 
 Ixxiii 
 
 Peyton, In re, 278, 668. 
 Fbelps V. Prew, 8S2. 
 
 — r. Protliero, 946, 961, 976. 
 Phene'.s Trust, In re, 343. 
 Pheyscy r. Vicary, 374. 
 Phillimore r. Barry, 232, 234. 
 Phillips r. Hmnfray, 107. 
 
 — V. INIiller, i072. 
 Phillipo r. Munnings, 394, 395. 
 Phillips, In re, 584. 
 
 Phillips V. Caklcleuo-h, 140, 14.^5, 152. 
 
 — V. Duke of Bucks., 185, 1060. 
 -■ r. Edwards, 75, 282, lOOO, 1026. 
 
 — V. Everard, 551. 
 
 — V. Fielden, 959. 
 
 — r. Gutteridge, 918, 1193. 
 
 — r. Miller, 452, 866. 
 
 — r. Mannings, 904. 
 
 — v. Phillips, 833, 834. 
 
 — r. Silvester, 246, 253, 628, 650. 
 Phillipson v. f ratty, 51. 
 
 — r. ttbbon, 1126. 
 
 — r. Gibson, 386. 
 Phillpotts V. Phillpotts, 242. 
 
 Phipps r. Child, 280, 286, 431, 1036, 
 1040, 1042, 1097, 1113. 
 
 — V. Lovegi'ove, 858. 
 Picardr. Mitchell, 714. 
 Pick, In re, 715. 
 Pickard r. Sears, 103. 
 Pickering v. Dowson, 93, 1 OS. 
 
 — r. Lord Sherborne, 295. 
 Pickersgill, In re, 575. 
 
 Pickett V. Loggon, 545, 747. 
 
 — V. Packhan, 324. 
 Pierce v. Derry, 462. 
 
 — I'. Scott, 604, 1141. 
 Piers V. Piers, 339, 1219, 1225. 
 Piggott V. Stratton, 799. 
 
 — r. Pigott, 1001, 1002. 
 
 — r. Waller, 268. 
 Pike r. Stejjhens, 871. 
 
 — v. Vigers, 102, 802. 
 
 — V. Wilson, 177, 178. 
 
 Pilcher v. Pawlins, 825, 827, 830, 836. 
 
 Pilgrim r. Knatchbull, 1016. 
 
 I'illing r. Armitage, 843. 
 
 Pihaure r. Hood, 804. 
 
 Pimm i: Insall, 622, 1190. 
 
 Pinchin r. Bl. Ry, Co., 210, 211, 215, 
 
 444, 977, 992. 
 Pincke r. Cnrteis, 42(5. 
 Pinnellr. Hallett, 941. 
 Pinnington v. Galland, oGo, 537, 538. 
 Piper r. Piper, 818, 819. 
 Pitcairn v. Ogbourne, 1085. 
 Pitcher v. Tovey, 921. 
 Pitchers r. Edney, 179. 
 Pitt v. Donovan, 108. 
 
 — r. Pitt, 941. 
 Planche r. Colburu, 187. 
 Plant r. Taylor, 348, 509. 
 
 Plasterers' Co. r. Parish Clei"ks' Co., 375, 
 
 376. 
 Playford v. Hoare, 1125, 1138. 
 
 — c: Playford, 748, 1081. 
 
 Pleasants v. Pioberts, 1210. 
 
 Plowden V. Hyde, 268. 
 
 Plowes V. Bossey, 337. 
 
 Plumb V. Fluitt, 875. 
 
 Plummer v. Whitelap, 813. 
 
 Plumbtree r. O'Dell, 1209. 
 
 Polden V. Bastard, 452, 532, 539, 867. 
 
 Pole r. Least, 186. 
 
 Polhill i: Walter, 103. 
 
 Pollard r. Clayton, 986, 994, 1087. 
 
 PoUexfen r. IVIoore, 246. 
 
 Ponsford v. Vv'alton, 694. 
 
 Poole, Hx farte, 941, 942. 
 
 — V. Adams, 249, 812. 
 
 — v. Hill, 130, 959. 
 
 — V. Middleton, 986. 
 
 — r. Pudd, 192. 
 
 — r. Shergold, 247, 248,249, 441, 982, 
 
 1077, 1080, 1139. 
 Pooley v. Budd, 227, 985, 987. 
 
 — V. (iuilter, 32, 33. 
 
 Pope ?•. Garland, 95, 96, 115', 117, lo78. 
 
 — r. E. C. Ry. Co., 1090. 
 
 — i: Eoots, 250, 1081. 
 
 — r. Simj^son, 1087. 
 Popham V. Eyre, 420, 1060. 
 Popple r. Hanson, 1118. 
 Popplewell r. Hodlvinson, 370. 
 Porcher v. Gardner, 417, 960. 
 Pordage v. Cole, 960. 
 
 Porter's Trust, lit re, 319, 347, 584. 
 
 Portland r. Prodgers, 28. 
 
 Portman v. Mill, 123, 630, 645, 652, 1075, 
 
 1078, 1110. 
 Portmore v. Taylor, 750. 
 Pott r. Todhunter, 901. 
 Potter r. Commissioners of lie venue, 697. 
 
 — V. (Jrossley, 1098. 
 
 — r. Duflfield, 218. 
 
 — r. Sanders, 218, 231, 996, 1009. 
 Potts, //(. re, 1174. 
 
 — V. Curtis, 754. 
 
 — V. Dutton, 722. 
 
 — r. Tliames Haveu Co., 81, 221, 1 000. 
 Toulett, Earl, r. Hood, 546, 548, 553, 555. 
 Pounsett r. Fuller, 952. 
 
 Pow r. Davis, 947. 
 Powdrell ;•. Jones, 516. 
 Powell r. Divett, 236. 
 
 — V. Doubble, 122, 138. 
 
 — V. Edmunds, 102, 103, 111. 
 
 — r. (4. W. Py. Co., 990. 
 V. Jessop, 201. 
 
 — r. Lovegrove, 200, 1024. 
 
 - r. Martyr, 628, 629, 1126. 
 
 — V. Powell, 1138, 1188, 1191, 1210, 
 
 1211. 
 
 — r. Smith, 1030, 1053. 
 
 — V. Smithson, 157. 
 
 — V. S. W. Py. Co., 1070. 
 r. Thomas, 1031. 
 
 Powers V. Fowler, 227, 231.. 
 
 Powis V. Cajtron, 1139. 
 
 Powys V. Mansfield, 932. 
 
 Poynder r. Great Northern Ky Co., 442. 
 
 Poyntz V. Fortune, 1089.
 
 Ixxiv 
 
 TABLE OF CASES, 
 
 Prance v. Sympson, 897. 
 
 Prankei-d r. Prankenl, 934. 
 
 Pratt r. Bull, 407. 
 
 Prees v. Coke, 749, 803. 
 
 Preiidergast r. Eyre, 1074, 1078, 121G. 
 
 Prentice v. Prentice, 1192. 
 
 Preston r. Barker, 1202. 
 
 — r. Liverpool, &c.. Ey. Co., f>7, 
 
 189, 190. 
 
 — r. Preston, 014. 
 Pretty r. Solly, 1075. 
 Prettyman's Case, 88.''). 
 
 Price /■. Assheton, 221, 1031, 1032. 
 
 — V. Berrington, 6, 1015, 1124. 
 
 — r. Blakemore, 739, 939. 
 
 — r. Byrn, 32. 
 
 — r. Carver, 1194. 
 
 — 1-. Corp. of Penzance, 991, 1133. 
 
 — r. Dyer, 1035, 1036, 1043, 1085. 
 
 — r. Griffith, 219, 225, 1033, 1060, 
 
 1073. 
 
 — r. Hathaway, 685. 
 
 — r. Ley, lo73. 
 
 — r. Macaulav, 138, 139, 159. 
 
 — r. North, 134, 140, 646, 1227. 
 
 — r. Price, 900, 1192, 1203. 
 
 — r. Salnsbiu-y, 1032. 
 
 — r. Strange, 1138. 
 Prickett r. Badger, 187, 188. 
 Priddy r. Kose, 839. 
 
 Pride r. Biibh, 5, 70, 571. 
 Primrose, In re, 98, 1135. 
 Prince v. Cooper, 1191. 
 Prior V. Horniblow, 395. 
 Pritchard /•. Ovey, 221. 
 
 — r. Poberts, 1150. 
 Probert i: Price, 1193. 
 Proctor ','. Cooper, 450, 863. 
 
 — r. Hodgson, 363. 
 
 — r. Warren, 937. 
 Prodgers v. Langham, 901. 
 Professional Life Assce. Co., /;( re, 915. 
 Propei-t, /// re, 589. 
 
 _ V. Parker, 233. 
 Pi-osser V. Edmunds, 240. 
 
 — r. Rice. 829. 
 
 — r. Watts, 298, 30-3, 314, 1139. 
 Prothero i: Phelps, 972. 
 
 Proud V. Bates, 371. 
 
 — r. Proud, 381. 
 
 Pryce v. Bury, 475, 840, 998, 1194. 
 Pryor v. Pryor, 901, 1186. 
 Pryse r. Cambrian lly. Co., 1091. 
 Piillan r. Eawlins, 320. 
 PulUng r. London, C. & I), lly. Co., 212. 
 Pulsford r. Richards, 104, 135, 1055. 
 Pulvertoft r. Pulvertoft, 894, S98, 998. 
 Purcell (•. Blennerhasset, 377. 
 
 — r. Kelly, 48. 
 
 Purser r. Darby, 263, 709, 1128. 
 Piu'vis r. Rayer, 290. 
 Pusey r. Pusey, 985. 
 Pye r. Daubrez, 809. 
 Pyer r. Carter, 360, 453, 537, 539. 
 Pyke r. Northwood, 1093. 
 — r. Williams, 1023, 
 
 Pym V. Blackburn, 1023, 1034. 103G. 
 
 — V. Campbell, 231, 969. 
 
 — r. Lockyer, 932. 
 
 Pyrke r. Waddingham, 84, 994, 1100, 
 1107, 1108, 1127, 1138. 
 
 Queen's Camel, Vicar of. In re, 664. 
 (Jueen's College, Ex imrte, 664. 
 Queen r. Eton College, 501, 704, 
 C^uency, Ex parte, 132. 
 
 Rabbett r. Raikes, 133. 
 Raby r. Ridehalgh, 64. 
 Race r. Ward, 373. 
 Rackliani r. Marriott, 398. 
 
 — r. Siddall, 86. 
 Radcliffe r. Eccles, 1220. 
 
 - — r. Warrington, 514. 
 Radford r. Willis, n03. 
 Radnor, Lord, r. Shafto, 208, 265. 
 Rafferty r. King, 391, 
 Railston, Ex parte, 717. 
 Railstone r. York, &c., Ry. Co., 626. 
 Rainy r. Vernon, 180. 
 Raleigh's Case, 935. 
 Ralph, Ex parte, 561, 766. 
 Ramsay, In re, 278. 
 Ramsbottom r. Gosden, 1037. 
 Ramsden r. Dyson, 1029, 1031. 
 
 — r. Hirst, 110, 1071, 1075, HOG. 
 
 — r. Hylton, 890. 
 
 — r. Lupton, 568. 
 
 — r. Manchester Ry. Co., 444. 
 
 — r. Smith, 523. 
 
 — r. Thornton, 843. 
 Ranee, In re, 724. 
 
 Rand r. Macmahon, 320. 
 
 Randall r. Erringtou, 32, 43, 45. 48. 
 
 — V. Hall, 121. 
 
 — r. Morgan, 890, 928. 
 
 — r. Randall, 928. 
 
 • — r. .Stevens, 383, 385. 
 Randell v. Trimen, 947. 
 lianelagh. Lord, r. Melton, 420. 
 Rangeley v. Midland Ry. Co., 446. 
 Ranger r. fit. Western Rj'. Co., 802. 
 Ranken r. Harwood, 458. 
 
 — r. E. & W. India Dock Co., 445. 
 Rankin r. Hamilton, 967. 
 
 — V. Lay, 1089. 
 
 Raphael v. Thames Valley Ry. Co., 1062. 
 Eatcliffe r. Barnard, 078, 731, 844, 854, 
 
 870, 877. 
 Ravenscroft r. Fiisby, 395. 
 Rawbome, //; re, 849. 
 RawUngs r. Dalgleish, 1018. 
 Ra\\lins r. Burgis, 268. 
 
 — r. Wickham, 105, 799, 842, 
 Rawson, Ex parte, 832. 
 
 — r. Tasburgh, 284. 
 Rawstron r. Taylor, 364, 365. 
 Rayne r. Baker, 733, 824. 
 Rayner v. Alnusen or Allhusen, 968. 
 
 — r. Grote, 940. 
 
 — r. Julian; 1007. 
 R.ajmosr. Wyse, 1121.
 
 TABLE OF CASES. 
 
 Ixxv 
 
 Kea V. Williams. 923. 
 Read r. Brookman, 322. 
 
 — r. Shaw, 7S. 
 Redding)-. Wilkes, 101.3. 102G. 
 Rede vl Oke^, 68, 172, 17-1, 1047, 1122. 
 Redington r. Redington, 932, 934, 936, 
 
 939. 
 Redshaw r. Xewbold, 1220. 
 Reece r. Trye, 731, 883. 
 Rees, In re, 724, 726. 
 
 — V. Lloyd, 326. 
 
 Reese River Mining Co., 106. 
 
 — r. Atwell, 908. 
 Reeves r. Barrand, 179. 
 
 — r. Gill, 501, 722. 
 
 — ■?'. Greenwich Tanning Co., 1088. 
 Regent's Canal Co. r. Ware, 210, 214, 
 
 628, 649, 988, 992, 993. 
 Reg. r. Ambergate, &c., Ry. C-o., 980. 
 ' — r. Avery, 882. 
 
 — V. Birmingham & Oxford Junction 
 
 Railway Co., 57, 210, 214, 
 977. 
 
 — V. Bishopstoke, Lord of the ]NLanor 
 
 of, 500, 533. 
 
 — r. Burgon, 105. 
 
 — r. Chorley, 375. 
 
 — r. Commissioners of Woods and 
 
 Forests, 980. 
 
 — r. Corbett, 710. 
 
 — r. EUis, 493. 
 
 — r. Eton CIolL, Steward of, 704. 
 
 — r. Garland, 5 09. 
 
 — r. G. W. Ry. Co., 9S0. 
 
 — r. Ingleton, Lord of the Manor of, 
 
 690. 
 
 — i\ Inhabitants of Mansfield, 33(i. 
 _ r. Irish S. W. ]l. Co., 977. 
 
 — r. Lancashire & Yorks. Ry. Co., 
 
 980. 
 
 — V. L. & X. W. Ry. Co.. 978. 
 
 — V. L. &S. W. Ry. Co., 211. 
 
 — V. Middlesex Registrars, 6S4. 
 
 — r. Osbom-ne, 333. 
 
 — r. Oundle, 509. 
 
 — r. Peddley, 920. 
 
 — r. Petrie, 362. 
 
 — r. Pratt, 368. 
 
 — r. Preston, Inhabitants of, GOl. 
 
 — V. Rigge, 500. 
 
 — r. Roebuck, 105. 
 
 — r. Saffron Hill, 142. 
 
 — V. Smith, 493, 910. 
 — • ?•. Snow, 252. 
 
 — r. South IJevon Ry. Co., 626, 979. 
 
 — • r. St. ]Mary Magdalen, 339. 
 
 — V. Tithe Commissioners, 353. 
 
 — r. Wandsworth, Inhab. of, 362. 
 
 — r. Waterford & I.iimerick Ry. Co. 
 
 978. 
 
 — r. Wellesley, 710. 
 
 — V. Woods and Forests, 209. 
 
 — V. York. & N. M. Ry. Co., 980. 
 
 — r. York. N. & B. Ry. Co., 980. 
 Rehoboth Chapel, In re, 670. 
 Reid's Case, 932. 
 
 Reid V. Don Pedro North del Rev 
 Mining Co., 1095, 1096. 
 
 — r. Draper, 186. 
 
 — r. Hoskins 961. 
 
 — r. Langlois, 881. 
 
 — V. Shergold, 79, 840. 
 Reilly i\ Fitzgerald, 350. 
 Remington v. Deverall, 562. 
 Rendlesham, Lord, r. ]\Icux, 65, 67, 604, 
 
 1138. 
 Renshaw v. Bean, 358. 
 Eetallick r. Hawkes, 973. 
 Reuss r. Picksley, 218, 229. 
 Renter r. Electric Telegi-aph Co., 236. 
 ReveU r. Hussey, 249. 
 Rex v. Bailey, 493. 
 
 — V. Boston, 931. 
 
 — r. Craci'oft, 1211. 
 
 — c. Dunstan, 1036. 
 
 — V. Gregory, 1208. 
 
 — r. Eastborne, 22. 
 
 — V. Haddenham, 29. 
 
 — V. Hatfield, 335. 
 
 — V. Holland, 22. 
 
 — V. Hungerford M. Co., 210. 
 
 — v. Lamb, 493, 494. 
 
 — V. Marsh, 194. 
 
 — • V. Montague, 362. 
 IJeynell r. Sprye, 104, 241, 747, 883, 1015, 
 
 105.3, 1054, 1066. 
 Reynolds, Ex parte, 45. 
 
 — n Blake, 1211. 
 
 — V. Bowlev, 849. 
 
 — V. Nelson, 422, 972. 
 
 — r. Waring, 1023, 1033. 
 Ilhodes, In re, 723, 725. 
 
 -- r. Bate, 20. 
 
 — r. Bucldand, 71. 
 
 — r. Ibbetson, 109, 151, 1099. 
 Rhys r. Dare Valley Ry. Co., 629. 
 Riccard v. Inclosure Commissionners, 409. 
 
 — V. Prichard, 186, 732. 
 Rice, III re, 727. 
 
 — r. Gordon, 747. 
 
 — v. Rice, 730, 837, 845. 
 Rich V. Basterfield, 921. 
 
 ~ r. Jackson, 1036, 1042. 
 
 — r. Riche, 790. 
 
 Richards v. Attorney General of .Tamaic:i. 
 2.58. 
 
 — V. Barton, 569. 
 
 — r. James, 857. 
 
 — r. Jenkins, 533. 
 
 — r. Lewis, 142. 
 
 — r. Rose, 369, 538. 
 Rich.ardson, In re, 1145. 
 
 r. Chasen, 949. 
 
 r. Eyton, 151, 1033. 
 
 — V. Horton, 622. 
 
 /•. McCausland, 736. 
 r. Richardson, 901. 
 r. Smith, 222. 223. 
 
 — r. Ward, 1218. 
 
 r. Younge, 391, .392, 396. 
 Richmond c. X. London Rv. Co., 215, 146, 
 978.
 
 Ixx 
 
 TABLE OF CASES. 
 
 llickards i: GleJstanew, SIS, S.oO, S5S. 
 Kicketts v. Bell, 995. 
 lliddell r. Riddell, 779, 7S0. 
 liider v. Jones, 412. 
 
 — i: Kidder, 906, 930, 933. 
 llidgwayr. Gray, 140, 886, 1069, 1070. 
 
 — V. Sneyd, 806, 1083, 1084. 
 
 — r. Wharton, 208, 215, 225, 226, 
 
 229, 231, 1034, 1035. 
 Eigby V. G. W. Ry. Co., 544. 
 
 — V. M'lSramara, 1205, 1208. 
 Rigden v: ValHer, 923. 
 
 Right V. Beard, 252, 958. 
 
 — r. Bucknell, 810, 888. 
 Riley apji. Croxley resi^., 242. 
 Ring r. Jarman, 276. 
 Rippiner v. Wright, 695. 
 Rippincjall r. Lloyd, 407, 408, 425. 
 Rist r. Hobson, 1013. 
 
 Ritchie r. Smith, 970, 1045. 
 Rittson V. Stordy, 22. 
 River Steamer Co., In re, 397. 
 Rivis r. Watson, 813, 920. 
 Roach V. Wadham, 765, 778. 
 Roade or Roake, i: Kidd, 1100, 1140. 
 Rob V. Butterwick, 744. 
 Roberts, In re, 1150. 
 
 — r. Ball, 482, 662. 
 
 — V. Berry, 305, 418, 421. 
 
 — i: Brett, 960. 
 
 — V. Croft, 845, 867, 877, 880. 
 
 — V. Haines, 369, 370, 537. 
 
 — V. Macord, 385. 
 
 — V. Marchant, 995, 1008. 
 
 — r. Massey. 192, 628. 
 
 — V. Rowlands, 973. 
 
 — V. Tunstall, 49. 
 
 — V. WilHams, 903. 
 
 — T. Wyatt, 160, 162, 279. 
 Robertson, In re, 721. 
 
 — V. Armstrong, 657. 
 
 — V. Great Western Rv. Co., 
 
 1006. ^ 
 
 — V. Lockie, 72, 
 
 — V. Norris, 36. 
 
 — V. Skelton, 249, 638, 1207, 
 
 1226 
 Robinson v. Biiggw, 62, 869, 879. 
 
 — V. Davison, 828. 
 
 — V. Drybrough, 236. 
 
 — V. Governors of Loudon Hospi- 
 
 tal, 686. 
 
 — V. Harman, 952, 953. 
 
 — V. Hedger, 462, 472, 482. 
 
 — V. Lowater, 53, 597, 617, 619, 
 
 621. 
 
 — V. Macdonnell, 694. 
 
 — V. Marquis of liristol, 393. 
 
 — V. Musgi-ove, 136, 139, 154. 
 • — V. Page, 1043, 1085, 1116. 
 
 — V. Preston, 923, 924, 925, 933, 
 
 934. 
 
 — V. Ridley, 46. 
 
 V. Rosher, 1129. 
 
 — V. Rutter, 178. 
 
 — r. Sykes, 943. 
 
 Robinson v. Wall, 112, 195. 
 
 — V. Wood, 1221. 
 
 — • V. Woodward, 456, 448. 
 
 — V. WheelwTight, 9, 1001. 
 Robinson's Will, In re, 584. 
 Robson V. Collins, 1036. 
 
 — v. Flight, 453, 605, 767, 769, 874. 
 
 — V. McCreight, 906. 
 
 — V. Whittingham, 359, 9S3. 
 Roch r. Callen, 394, 400. 
 Rochard v. Fulton, 863. 
 
 Roche V. O'Brien, 49, 105. 
 Rochdale Canal Co. v. Radcliffe, 361. 
 Rochford v. Hackman, 18. 
 Roddam v. Morley, 395, 396. 
 Roddy r, Williams, 798, 868, 901. 
 Kodick V. Gaudell, 186, 732. 
 Rodney v. Rodney, 1192. 
 Rodwell V. Phillips, 203. 
 Roe V. Ireland, 324. 
 
 — r. Mitton, 891, 899. 
 Roebuck v. Chadebet, 1188. 
 Roffey r. Bent, 785. 
 
 — V. Shallcross, 1074. 
 Rogers, Ex parte, 857, 879. 
 
 — r. Brenton, 118, 373. 
 
 — i: Challis, 982, 1047. 
 
 — V. Earl, 760. 
 
 — r. Humphreys, 813. 
 
 — r. Rogers, 602. 
 
 — r. Taylor, 370. 
 
 — V. Tudor, 1089. 
 
 — V. Waterhouse, 1102, 1107, 1138. 
 Rolfe r. Perry, 819. 
 
 Rolland r. Hart, 857, 858, 878, 879, 880. 
 
 Rollaston r. Lion, 198. 
 
 Rolleston 1-. Morton, 482, 1219, 1225. 
 
 Rolph V. Crouch, 793. 
 
 Rolt V. White, 838. 
 
 Rome %: Young, 730, 1117. 
 
 Romney, In re, 719. 
 
 Rooke v. Lord Kensington, 522, 533, 542, 
 
 744, 1022. 
 Rooperr. Harrison, 451, 542, 832, 837, 
 
 838, 884. 
 Roots V. Lord Dormer, 237. 
 Roper V. Coombes, 974. 
 
 — r. Williams, 772, 773. 
 Roscommon, Earl, case of, 338. 
 Rose V. Calland, 1127, 1139. 
 
 — r. Cunynghame, 208, 219, 267. 
 
 — V. Watson, 245, 441, 884, 1026, 1010. 
 Rosewell r. Prior, 920. 
 
 Ross r. Boards, 1070. 
 
 — r. Estq,tes Investment Company, 106. 
 
 — V. Pope, 919. 
 
 Rosse, Lord, v. Sterling, 1115. 
 
 — r. Wainmain, 69. 
 Rossiter v. Walsh, 35. 
 Rothcrham v. Rotherham, 622. 
 Rothschild v. Brookman, 19, 34, 45. 
 Round r. Bell, 399. 
 Routledge v. Grant, 124, 230. 
 Row, In re, 669. 
 
 Rowbotham r. Wilson, 368, 369, 370, 533. 
 Rowe V. Brenton, 118.
 
 TABLE OF CASES. 
 
 Ixxvii 
 
 Pvowc r. Teed, 1034, 
 
 — V. May, 181, 5S2. 
 Rowland v. Cuthbertson, 513, C22. 
 
 — ■ V. Witherden, (350. 
 Rowlands r. Evans, 420. 
 Rowley, In re, 581. 
 
 Rowley v. Adams, 128, 559, 585, GlO, 
 1192, 1221. 
 
 — V. Eyton, 268. 
 
 — V. Merlin, 41 1!. 
 Roxburgh, Duke of, v. Ramsay, 970. 
 Royal Liver Friendly Society, In re, G99. 
 Royle V. Wynne, 993. 
 
 Rudd r. Sewell, 39, 48. 
 Rudino' V. Smith, 339. 
 Ruffey V. Henderson, 199, 201. 
 Rugby Charity v. Merryweather, 302. 
 Runibold v. Fortreath, 412. 
 Runimens v. Robins, 228, 1035. 
 Rushbrook r. Hood, 705, 706. 
 Rushton V. Craven, 1107, 1138. 
 Russel V. Russel, 1223. 
 Russell, In re, 590. 
 
 — r. Harford, 156. 
 
 — V. Jackson, 881, 883. 
 
 — r. McCuUock, 470. 
 
 — V. Plaice, 78, 1139. 
 Russell-road Purchase- moneys, In re, G62, 
 
 853. ■ 
 
 — r. Tithe Commissionere, 351. 
 Rust V. Baker, 340. 
 
 Rutledge v. Rutledge, 887. 
 Rutter r. Marriott, 1212, 1227. 
 Rutley r. Gill, 1212. 
 Ryal V. Ryal, 932. 
 Ryan v. Anderson, 1009. 
 Ryder c. Earl Gower, 1806. 
 Ryle V. Swindells, 1081. 
 
 Sabin v. Heap, 60, 61, 600, 603, 617, 618. 
 
 Sackville r. Smyth, 821. 
 
 Sadd V. Maldon, 210. 
 
 Sainsbury v. Jones, 105, 982, 1008. 
 
 — V. Matthews, 203. 
 
 St. Alban's, Duke of, v. Shore, 959. 
 
 St. Albyn r. Harding, 750. 
 
 St. Bartholomew's Hospital, Trustees of, 
 
 Ex parte, 714. 
 St. Cross V. Lord Howard de Walden, 963. 
 St. George, Parish of, v. St. Margaret's, 
 
 St. Germans, Lord, v. Crystal Palace Ry. 
 
 Co., 447, 741, 1092. 
 St. Giles' Volunteer Corps, In re, 609. 
 St. Helen's C!ompany v. Tipping, 921. 
 St. John V. Bishop of Winton., 268. 
 
 — Lord, ('. Boiighton, 386. 
 
 St. Katherine's Dock Co., //;. re, 714. 
 St. Pancras Burial Ground, In re, 667. 
 St. Paul V. Birmingham, &c., Ry. Co., 192. 
 St. Paul's, Ex parte, 666. 
 St. Thomas's Hosiaital, In re, 664, 720. 
 
 — V. charing Cross Ry. Co., 212. 
 
 Sainter v. Ferguson, 1061, 1089. 
 Salaman v. Glover, Addcada. 
 Sale v, Lambei't, 218. 
 
 Salisbury, the Bishop, In re, 721. 
 Salisbury r. Hatcher, 1058. 
 
 — Lord, V. G. X. Ry. Co., 57, 210, 
 
 978. 
 
 — V. Wilkinson, ISO. 
 Salkeld v. Johnson, 355, 356, 1136. 
 Salman v. Bradshaw, 781. 
 Salmon v. Cutts, 39, 49. 
 
 — V. Gibbs, 1104. 
 
 — V. Randall, 210. 
 Saloway v. Strawbridge, 608, 1138. 
 Salter v. Bradshaw, 750, 757, 759. 
 
 — r. Cavanagh, 380. 
 
 — v. Metropolitan Ry. Co., 212. 
 Salters' Co. v. Jay, 357- 
 Saumerez, In re, 581. 
 
 Sampson v. Hoddinott, 304. 
 Samuda v. Lawford, 989, 1033. 
 Sanders v. Benson, 272, 559. 
 
 — V. Richards, 1006, 1139. 
 Sanderson v. Chadwick, 709, 1123. 
 
 — V. Cockermouth Ry. Co., 989, 
 
 993, 1033. 
 
 — V. Walker, 32, 38, 47, 181. 
 Sanger i\ Sanger, 9, 12, 51, 1001. 
 Sansom v. Rhodes, 417, 974. 
 
 Sari V. Bourdillon, 217, 218. 
 Saunders v. Cramer, 256. 
 
 — V. Dehew, 824, 831. 
 
 — V. Gray, 1220. 
 
 — r. Leslie, 733. 
 
 — T. Merewether, 523. 
 
 — V, Musgrave, 438. 
 
 — r. Topp, 202. 
 Saunderson v. Jackson, 220, 232, 233. 
 Savage r. Carroll, 265, 1032. 
 
 — V. Foster, 11, 450, 841. 
 Savery r. King, 39, 41. 
 Savory t\ Underwood, 284, 642. 
 Savill V. Savill, 1227. 
 Saward v. Anstey, 790. 
 Sawston, Vicar of. Ex jMrte, 716. 
 Sawyer r. Birchmore, 882. 
 
 — v. Mills, 1133. 
 Saxon V. Blake, 185, 1052. 
 Say V. Barwick, 1044. 
 Say, Ex parte, 37. 
 
 Saye and Sele Barony, 337, 338. 
 Sayer v. Wagstaff, 725. 
 Sayos V. Blanc, 292. 
 Sayi-e v. Hughes, 933. 
 Scales V. Baker, 940. 
 
 — V. Maude, 929. 
 Scawin v. Scawin, 936. 
 Schilf, In re, 575. 
 Schmaling v. Thomlinson, 178. 
 Schmalz l: Avery, 946, 964. 
 Schneider v. Heath, 92, 103. 
 
 — V. Xorris, 232. 
 Scholefield, Ex parte, 574. 
 
 — V. Heafield, 1220. 
 Schotsmans v. L. and Y. Ry. Co., 730. 
 Schreil)er f. Creed, 22, 767. 
 Schroder v. Schroder, 267, 268, 913. 
 Scoones v. Norrell, 165, 1131, 113!*. 
 Scorell V. Boxhall, 202.
 
 XXVlll 
 
 TABLE or CASES. 
 
 Scotland, Life Association of v. SidJall, 
 
 48, 49, 51. 
 Scott V. Avery, 222. 
 
 — i: Davis, 38, 50. 
 
 — V. Dunbar, 32, 7'>(^, 1124. 
 
 — V. Lord Ebury, 58. 
 
 — V. Eenhoullet, 270. 
 
 — r. Hanson, 100. 
 
 — V. Lord Hastings, 4S1. 
 
 — r. Jackman, 145, 674, 1222. 
 
 — V. LangstafFe, lOtiO. 
 
 - r. Corporation of Liverpool, 222. 
 
 — V. Miller, 242. 
 _ r. Xesbit, 1202. 
 
 _ r. NLxon, 401, 402, 1140. 
 
 — v. Eayment, 982, 992. 
 
 — r. Koberts, 1193. 
 
 — V. Scholey, 457. 
 
 _ V. Scott, 384, 394, 892, 1129. 
 Scotto V. Heritage, 1017, 1137. 
 
 _ r. Williams, 49, 50. 
 Scrafton v. Quincey, 681. 
 Scroope r. Scroope, 933. 
 Seabourne v. Powell, 808. 
 Seaforth, Lord, Ex parte, 162. 
 Seagood v. Meale, 217, 220. 
 Seagi-am i: Knight, 48, 380, 396. 
 Seaman v. Price, 201. __ 
 
 — r. Vawdrey, 116, 1071, UUd, llOO, 
 
 1140. 
 Searle r. Colt, 379, 400. 
 
 — r. Law, 900. 
 Seaton v. Booth, 439. 
 
 — r. Mapp, 109, 150 419, 420. 
 Seaward r. WiUcock, 959, 974. 
 Seddon r. Senate, 562, 783. 
 Selbyr. Cooling, 78, 1139. 
 
 r. .Jackson, 6, 1054. 
 
 _ r. Pomfret. 582, 915, 917. 
 
 — V. Selby, 232, 733. 
 SeUickr. Trevor, 152, 281. 
 Selsey, Lord, r. Lake, 941. 
 
 _ v. Ehoades, 38, 48. 
 Scmple V. Pink, 10^4^ 
 Senior v. Pawson, 771. 
 Sentance v. Porter, 1133. 
 Seton r. Slade, 231, 247, 305, 424. 
 SeweU r. Moxoy, 900. 
 
 _ r. Walker, 751, 7^4. 
 Sexton Same's Settled Estates, In re, 1178. 
 Shackleton v. Sutcliffe, 117, 139, 6o2, 
 
 1075, 1141. 
 Shadforth r. Temple, 257. 
 Shales r. Shales, 936. 
 Shallcross v. Dixon, 863. 
 
 _ T. Hibberson, 1202. 
 
 r. Wever, 46. 
 
 Shannion v. Bradstreet, 995. 1044. 
 Shai)land r. Smith, 1099, 1139. 
 Shan) r. Adcock, 1138. 
 
 — V. Milligan, 422, 1086. 
 
 — r. Page, 408. 
 
 _ V. St. Sauveiu-, 22, 23. 
 _ i: Taylor, 1046. 
 Shan^e v. Toy, 11, 841, 842, 858, 8/8, 
 1000. 
 
 Shaqie r. Eoahdc, 460. 
 
 Shaqjles r. Adams, 831. 
 
 Shaw, Kc intrte, 575. 
 
 Shaw's Settled Estates, In re, 1178. 
 
 Shaw V. Batley, 846. 
 
 — V. BoiTer, 618. 
 
 — i: Bunnav, 36. 
 
 — r. Fisher,'^292, 986, 988, 1011. 
 
 — r. Foster, 246. 
 
 — T. Hardiugham, 1010. 
 
 — r. Johnson, 289, 394, 399, 509. 
 
 — r. Kay, 1089. 
 
 — V. Xeale, 467, 486. 
 
 — r. Shaw, 410. 
 
 — r. Thackray, 996, 1009, 1044. 
 Shedden r. Patrick, 24. _ 
 
 Sheehy r. Miiskerry, 887. 
 
 Sheernesh W. W. Co., Offl. :Manr. of, r. 
 
 Poison, 151. 
 Sheffield, Corpon. of. Ex parte, 670, 716. 
 
 — & Eotherham Ey. Co., In re, 89. 
 
 — r. Lord Mulgrave, 1100, 1138. 
 
 — Canal Co. r. Sheffield & Eother- 
 
 ham Ey. Co., 230. 
 
 — Gas &c. Co. r. Harrison, 992, 
 
 1048. 
 
 — ToAvn Trustees of, Ex parte, 716. 
 Shelbiu-ue r. Inchiqmn, 1042. 
 
 Sheldon r. Cox, 853, 858, 861, 878, 879. 
 
 SheUy's Case, 1138. 
 
 Shelly r. Nash, 172, 754. 
 
 Shehnardine r. Harrop, 413. 
 
 Shelton r. Livins, 111. 
 
 Shepheard's Settled Estates, In re, 1173. 
 
 Shepherd's Case, 292. 
 
 Shepherd v. Gillespie, 103, 292. 
 
 — V. Hall, 698. 
 
 — r. Keatley, 146, 152. 
 
 — r. Lord LondondciTV, 353. 
 Sheppard v. Doolan, 1103, 1210. 
 
 — V. Duke, 394, 395. 
 
 — r. Murphy, 986. 
 
 — r. Oxenford, 1046. 
 ■ — r. Wilson, 614. 
 
 Sherry r. Oke, 949. 
 
 Sherwin v. Shakespeare, 125, 162, 285, 
 
 305, 628, 639, 641, 651, 1125. 
 Sherwood r. Beveridge, 1209, 1211. 
 
 — r. Eobins, 140, 750. 
 Shields v. Boucher, 349. 
 
 — r, Eice, 324. 
 ShiUibeer r. Jarvis, 1024. 
 Shippey r. Deirison, 234, 235. 
 Shirley, Ex parte, 579. 
 
 — r. Stratton, 92, 1082. 
 Shore )•. Collett, 409, 675. 
 Shore r. Wilson, 964. 
 Shorter. Kalloway, T93. 
 
 — 'r. McCarthy, 781. 
 
 ■ — r. Stone, 959. 
 Shortrede /■. Cheek, 964. 
 Shrewsbury r. Blount, 103. 
 
 — Earl of, V. Countess of, 194, 
 
 216. 
 
 — V. N. Staffordshire Ky. Co., 
 
 190.
 
 Table of cases. 
 
 I XXIX 
 
 Shiuwsljury ILisintal of, la re, 670. 
 
 — • and Birmingham liy. Co. r. X. 
 
 W. lly. Co., 190, 998, 
 1045, 1047, 1051. 
 
 — and C!hester Ry. Co. v. Shrews- 
 
 bury and Birmingham 
 Ry. Co., 1094. 
 
 — Peerage Case, 338, 348, 349, 
 
 351. 
 Sluittock r. Shuttock, 1003, 1004. 
 Kiljbald v. Lowrie, 435. 
 Silberling r. Earl of Balcarrie.s, 750, 752, 
 
 759. 
 Sibson r. Fletcher, 451, 838. 
 Siljthorp V. Brim el, 9b'0. 
 Sichel r. Mosenthalj 9!l-2, 1047, 1048. 
 Sidebotham, Ex parte, 435, 985. 
 
 — r. Barrington, 81, 284, 430, 
 
 110!>, 1112, 112(), 1140. 
 Sidmouth i\ Sidmouth, 932, 934, 93(5. 
 Sidney c. Wilmei*, 7 1 8. 
 
 — V. Ranger, 1195. 
 Sidwell V. Mason, 38(5. 
 Siifkin f. Davies, 1192. 
 Siggers v. Evans, 901. 
 Kikes V. Wild, 792, 952. 
 SilUck r. Booth, 340, 342. 
 Silver v. Udall, 1188. 
 Silvester v, Bradley, (iS. 
 Simmonds v. Palle.s, 890. 
 Simmons r. Hesseltine, 949, 9r<). 
 
 — V. Rudall, 382, 41 (i. 
 Sinmi.s r. Marryat, 145, 544, 975. 
 Simons r. M'Adam, 1017, 1137. 
 
 — r. Patchett, 951. 
 Simper v. Foley, 357, 358, 374. 
 Siftipson r. Bathurst, 77. 
 
 — V. Dendy, 335. 
 
 — V. Lancaster & Carlisle 1!}'. Co., 
 
 214, 251. 
 
 — V. Gutteridge, 580, 1140. 
 
 — v. Henderson, 9f)4. 
 
 — r. Lamb, 188, 240. 
 
 — r. Morley, 462, 475, 486, 1194. 
 
 — V. Margitson, 427, 963, 966. 
 
 — V. Ritchie, 1189. 
 
 — r. Sadd, 432, 433, 434, 435. 
 
 ■ — r. South Staffordshire Water- 
 works Co., 214. 
 Sims c. Thoma.s, 400. 
 Sinclair r. Jackson, 395, 399. 
 Sinclay, In re, 337. 
 Singleton, //(, re, 714, 718. 
 Sivell r. Abraliani, 1133, 1134. 
 Sive\vright r. Archibald, 231. 
 Skarf r. Soulljy, 905. 
 Skeats r. Skeats, 933. 
 Skeeles r. Shearly, 461. 
 Skelmai'dine r. Harroj), 413. 
 Skclton V. Colo, 218, 227, 228, 232. 
 Skerratt c. N. Staff Ry. Co., ()2(). 
 Skidmore r. Bradford, 932, 93(i. 
 Skinner, Ex parte, 83. 
 
 — V. M'Douall, 227, lol3, lii3.'). 
 
 — V. Stacy, 271. 
 
 Skitter's Mortgage Trusts, la re, 585, 591, 
 
 Skittoe V. Williams, 19. 
 
 Skidl V. (rlenister, 115. 
 
 SkuUy V. Delany, 240. 
 
 Sladden, //;, re, 724. 
 
 Slane Peerage Case, 348, 349. 
 
 Slaney r. Wade, 348, 350, 351. 
 
 Slater's Devisees, Ex parte, 713, 721. 
 
 Sleddon r. Cruikshank, 2(i2. 
 
 Slim V. Croucher, 99, 451. 
 
 Slipper r. Tottenham & H. Junct. l!y. Co., 
 
 211. 
 Sloaue r. Cadogan, 900. 
 Sloper, In re, 259. 
 
 — r. Fish, 460, 1090, 1140, 1111. 
 Smale v. Burr, 568. 
 
 Small r. Attwood, 92, 102, 800, 802, 803, 
 1007, 1137. 
 
 — r. Currie, 875. 
 Smart i: Harding, 200. 
 
 — r. :Morton^ 368, 370, 537. 
 
 — V. Sanders, 188, 311. 
 Smedley v. Varley, 35. 
 Smeed r. Ford, 951. 
 Smethurst r. Mitchell, 947. 
 Smith, Ex jmvtc, 36, 668, 719. 
 
 — In re, 580, 668, 723, 726. 
 
 — V. Acton, 382. 
 
 — V. x\dams, 274, 516. 
 
 — V. Andrews, 1010. 
 
 — V. Baker, 809. 
 
 — r. Bicknell, 413. 
 — • V. Boucher, 591. 
 
 — V. Bowen, 1044. 
 
 — r. liurnam, 305. 
 
 — V. Capron, 95, 290, 415, 432, 1014 
 
 1112. 
 
 — V. Cherrell, 897, 900. 
 
 • — V. Chichester, 674, 793, 835. 
 
 — V. Compton, 790, 793. 
 
 — r. Constant, 1018. 
 
 — r. Darby, 369, 370. 
 -- n Death, 1138, 1141. 
 
 — r. Dimes, 726. 
 
 -- f. East India Co., 184. 
 
 — r. Ellis, 109, 150. 
 
 — V. Evau.s, 739, 844, 870, 871. 
 
 — r. Garland, 99!», 1046. 
 
 — v. Han-ison, 155, 807. 
 
 — V. Henley, 238, 326, 967. 
 
 — r. Hibbard, 321. 
 
 r. Howell, 558, 793. 
 
 — - r. Hughes, 94. 
 
 — V. Hurst, 46(1, 4(i4, 474, 475, 890, 
 
 901, 902, 9(13. 
 
 — V. Jackson, 178, 181. 
 V. Jeffreys, 9(;4. 
 
 ■ r. Kay, 20, 799. 
 
 — r. Keating, 890. 
 
 — r. Leigh, 1130, 113(,). 
 
 — r. Lloyd, 389, 1(175, 1091, IdiM 
 
 — V. Matthews, 929, 1023. 
 
 — l: Xeale, 218, 230. 
 — ■ V. Nelson, 1211. 
 
 — r. Parkes, 838. 
 
 — r. Paw.son, 412. 
 
 — V. Phillips. 917.
 
 Ixxx 
 
 TABLE OF CASES. 
 
 Smith V. Pincombe, 753. 
 
 — V. Robinson, 1193. 
 
 — V. Sleap, 948. 
 
 — V. Smith, 762, 763, 804, 1218. 
 
 — V. Surman, 202, 203, 228. 
 ~ V. Tebbitt, 348. 
 
 — V. Thackrah, 369. 
 
 — V. Thompson, 963. 
 
 — V. Thome, 386. 
 .— r. Tolcher, 1079. 
 
 — r. Tombs, 200. 
 
 — r. Watts, 151, 1073. . 
 
 — V. Whitmore, 225. 
 
 — r. Wilkinson, 931. 
 
 — r. Wilson, 963. 
 
 — r. Wyley, 167. 
 Smithson v. Powell, 140, 1071. 
 iSmithwick r. Smithwick, 577. 
 iSmont i: Ilberiy, 947. 
 Snead V. Green, 1035. 
 
 Sneesby r. Thorne, 580, 598, 998, 1047, 
 
 1064. 
 Sneider v. Magino, 968. 
 Snelling, Ex parte, 579. 
 
 — V. Thomas, 1035. 
 Snow r. Booth, 394. 
 Soames r. Edge, 983. 
 Soar r. Foster, 932, 933. 
 Sober r. Kemp, 915. 
 Soloman r. Davey, 450. 
 Solomon i: Turner, 970. 
 
 — r. Solomon, 818. 
 
 — r. Vintners' Co., 368. 
 Soltau r. De Held, 921. 
 Somerset r. Cookson, 985. 
 
 — r. Cox, 839. 
 Somersetshire Coal Co. v. Harconrt, 1031. 
 Sotilichos r. Kemp, 963. 
 
 Souter r. Drake, 145, 290. 
 South, In re, 476, 477, 478, 479. 
 South Collingham rector of, In re, 672. 
 South E. Ey. Co., In re, 669, 713. 
 
 — V. Knott, 1011, 10,-;7, 
 
 1085. 
 Soiith Essex Estuary, &c., Co., 412, 441. 
 South of Ireland Colliery Co. v. Waddle, 
 
 190. 
 South Wales Ry. Co., Ex parte, 444. 
 
 — hire, 70S, 712 
 
 714. 
 
 — r. Wythcs, 991, 
 
 994, 1(146. 
 South Yorksliire, &c., Ry. Co., In re, 626, 
 
 978. 
 Sonthby r. Hutt, 125, 127, 145, 305, 312, 
 
 340, 641, 1097. 
 Southcomb r. Bishop of Exeter, 193, 423, 
 
 438, 1086, 1087, 1122. 
 Southwell r. Nicholas, 1051. 
 Sowarsby v. Lacy, 597. 
 Sowden r. Sowden, 941. 
 Sowerby v. Brooks, 871. 
 Sowry r. Sowry, 069, 713. 
 Spackman v. Timbrell, 622. 
 Spain, King of, r. Machado, 1008. 
 Spalding r. Shalmer, 69. 
 
 Sparke v. Moutnon, 411. 
 Sparrow's C!ase, 420. 
 SpaiTow, Ex parte, 580. 
 
 — r. Cooper, 816. 
 
 — r. 0. W. & W. Ry. Co., 57, 
 
 115, 210, 211. 
 Spartali v. Benecke, 730, 963 . 
 Spedding r. Nevell, 952. 
 Spence r. Healey, 971. 
 
 — V. Hogg, 1009. 
 Spencer's Case, 765, 766, 776, 778. 
 Spencer v. Boyes, 80S. 
 
 — r. Marriott, 783. 
 
 — T. Pearson, 828. 
 
 — r. Topham, 39, 41, 879, 1040. 
 Spensley's Estate, In re, 1214, 1215. 
 Spickernell v. Hotham, 394, 397. 
 Spiers, In re, 580. 
 
 SpiUer i: Spiller, 1094. 
 
 — v. Westlake, 959, 961. 
 Spirett r. Willows, 908, 909. 
 Spittle r. Lavender, 186. 
 Spooner, In re, 711, 718. 
 
 Spoor V. Green, 765, 781, 783, 786. 
 Spratt r. .Jeffery, 146. 
 Si3ring V. Pride, 32, 44. 
 Sprowle V. Prior, 733. 
 Sprye r. Porter, 241. 
 Spurgeon r. Collier, 1027. 
 Spunner c. Walsh, 119. 
 Spurrier v. Fitzgerald, 1013, 1034. 
 
 — r. Hancock, 248, 419, 1US7. 
 
 — r. Mayoss, 129. 
 Spyer r. Hyatt, 274, 622. 
 Squire, Ex parte, 694. 
 
 — r. Baker, 1082. 
 
 — V. Campbell, 121. 
 
 — r. Ford, 917. 
 
 — r. Tod, 945, 974. 
 
 — v. Whitton, 1001. 
 Squires, In re, 580. 
 Stables, In re, 8. 
 
 Stacy T. Elph, 38. 
 
 Stackhouse r. Lady Jersey, 730, 833, 837, 
 
 838, 870. 
 Stackpole v. Cui-tis, 1223. 
 
 — V. Stackpole, 895, 997. 
 Stafford Barony, Case of, 338. 
 Staffordshire and Worcestershire Canal 
 
 Co. r. Birmingham Canal Co., 366, 367. 
 Staff urth r. Pott, 1134. 
 Stainbank r. Fernley, '104. 
 Staines %: Morris, 550, 558, 1126, 1136. 
 
 — r. RucUin, 1192. 
 Stainton v. Chadwick, 883. 
 Stamford, Earl of, v. Dunbar, 355. 
 Stamps r. Birmingham and Stour Valley 
 
 Ry. Co., 210, 214, 251. 
 Standen v. Christmas, 814, 815. 
 Standish r. Liverpool, Mayor of, 444. 
 Stanford t. Roberts, 410. 
 Stanhope r. Earl Verney, 730, 824. 
 Stanhouse v. Gaskell, 11-38. 
 Stanley of Alderley's Estate, In re, 721. 
 
 — Lady of Alderley, r. YjAvI of 
 
 Shrewsbury, 985.
 
 TAP.LE OF CASES. 
 
 Stanley v. Chester, &c., Ry. Co., 190. 
 
 — V. Dowdeswell, 229. 
 
 — V. Hayes, 784. 
 
 — r. Heinmington, 959. 
 Staniiard v. Forbes, 785, 790. 
 
 — V. Umthorne, 543. 
 Stansfield v. Cubitt, 568. 
 
 — V. Hobson, 392. 
 Stanton v. Tattersliall, 115, 137, 429. 
 Staples, Ex parte, 66S, 719. 
 Stapilton V. Stapilton, 753, 892. 
 Stapylton r. Scott, 1053, 1113, 1141. 
 Starkie, la re, 688. 
 
 Staveley v. Alcock, 813, 920. 
 Stayuwyde v. Locock, 787. 
 Stead V. Cragh, 1001. 
 
 — r. Dawber, 425, 962, 970, 974. 
 
 — r. Nelson, lOiiO. 
 Stedman v. Cullett, 725. 
 Steed V. Calley, 28. 
 
 — V. Preece, 259, 260. 
 Steednian v. Poole, 9, 868. 
 Steel V. Prickett, 165, 335. 
 Steele, In re, 723, 725. 
 
 — V. Midland Ry. Co., 213. 
 
 — t'. Stewart, 881. 
 
 — V. Waller, 512, 1063. 
 Steer v. Crowley, 162, 281. 
 Stent V. Bailis, 806. 
 Stephen, In re, 725. 
 Stephens r. De Medina, 959. 
 
 — V. Hotham, 551. 
 
 — r. Olive, 891. 
 Stepney r. Biddulph, 912. 
 Stevens, Ex parte, 444, 574. 
 
 — r. Austen, 606, 975, 1138. 
 
 — V. Copp, 766. 
 
 — V. Guppy, 252, 284, 331, 434, 556, 
 
 1015, 1114. 
 — • V. Legh, 179. 
 
 — V. Stevens, 844. 
 Stevenson v. Newnliam, 752, 759. 
 Stewai-d's Estate, In re, 6()(). 
 Steward r. Blakeway, 925, 928. 
 Stewart, la re, 258, 260, 584, 666, 673. 
 
 — V. Alliston, 123, 138, 3u9, 1083. 
 
 — V. Graham, 1121. 
 
 — V. Gt. Western lly. Co.; 996, 997. 
 
 — V. Marqnis of Conyngham, 384, 
 
 1078, 1084, 1106, 1139. 
 
 — V. Smith, 422, 425, 1086. 
 ?•. Stewart, 806. 
 
 Stikeman v. Dawson, 4, 841. 
 
 Stileman v. Ashdown, 890, 933. 
 
 Stiles V. Cowper, 1031. 
 
 Stilwell or Stillwell v. Mellersh, 268, 1219. 
 
 — ■ r. Wilkins, 747. 
 Stirke, In re, 724, 725. 
 Stock r. M'Avoy, 932. 
 Stocker v. Dean, 209. 
 
 — V. Wedderburn, 1049. 
 Stockport Waterworks Co., Jii re, 541. 
 Stocks ?\ Dobson, 839. 
 
 Stokes V. Moore, 233, 235. 
 
 • — - r. IJiissell, 775. 
 Stokoe r. C'owiUi, 906, 93S. 
 
 ViJL. 1. 
 
 Stokoe r. Ilol)son, 413. 
 Stone, Ex parte, 579. 
 
 — V. Commercial Ry. Co., 210. 
 
 — V. Godfrey, 892. 
 
 — V. Stone, 934. 
 
 — I'. Van Heythuysen, 889, 892, 904, 
 906, 908. 
 
 Storer v. Gt. Western Ry. Co., 991. 
 Storry v. Walsh, 603, 621. 
 Stoiy V. Lord Windsor, 824. 
 Stourton, Lord, v. Meers, 1058. 
 Stowell r. Robinson, 281, 417, 42.5. 
 Straehan's Estate, In re, 721. 
 Straffon, In re, 544. 
 Straight v. Burn, 359. 
 Strangeways x\ Bishop, 100. 
 Stranks v. St. John, 290, 291. 
 Stratford r. Bosworth, 228, 1127. 
 
 — V. Twynam, 39. 
 Strathmore v. Bowes, 268. 
 Straton v. Rastall, 656, 730. 
 Stratton r. Pettit, 198, 961. 
 
 — 7'. Symon, 627. 
 Stray v. Russell, 987. 
 Streaker, In re, 416. 
 Streatfield, In re, 925. 
 Street, /;; re, 575. 
 
 — ?'. Brown, 967. 
 Strickland r. Turner, 806. 
 Stringer v. Harper, 819. 
 
 Strong V. Strong, 143, 677, 908,1216. 
 Stronge v. Hawkes, 145, 156, 450, 507, 
 
 729. 
 Strother, In re, 725. 
 
 Stroughill v. Anstey, 58, 77, 597, 600. 602, 
 603. 618, 620, 871. 
 
 — V. Buck, 523. 
 
 — V. fhilliver, 1026. 
 Stroyan or Harner ?•. Knowles, 368. 
 Stuart, Ex parte, 555. 
 
 — r. Ferg<ison, 735. 
 
 — V. L. and N. W. Ry. Co., 1 90, 21 9, 
 1033. 
 
 Stubb.s, In re, 573, 576. 
 
 — V. Sargou, 142, 1222. 
 Stuckey v. Drewe, 850. 
 Studilert, Ex parte, 663. 
 Stump r. Galy, 41, 759. 
 Sturge V. Starr, 743. 
 
 — V. Sturge, 746, 753. 
 Stin-ges V. Joy, 31. 
 Sturgis V. C'hampneys, 1001. 
 
 — V. Morse, 381, 811. 
 Styan, Ex parte, 718. 
 Stylos r. Guy, 75. 
 
 Su'ttield r. Brown, 156, 360, 537, 538, 539. 
 Suir Inland Charity, In re, 1224. 
 Sullivan v. Bayly, 1204. 
 
 — V. Jacob, 1048. 
 
 — r. Sullivan, 1220. 
 Summers r. (Trifhtlis, 749, 803. 
 Sumton V. Cooper, 679. 
 Sunderland Freemen, Ex parte. 52, 667. 
 Surcfiiue r. Piggiger, 1024, 102S. 
 Sussex Peerage Case, 348. 
 
 Sut.lift'e r. Booth, 366. 
 
 /
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 Sutherland r. Briggs, 1024, 1025. 
 Sutton Coldfield Case, 904. 
 
 — V. Chetwynd, 895. 
 
 — Harb. C. v. Hitchins, 1129. 
 
 — V. Sutton, 24. 
 Swaine v. (>. W. R. Co., 446. 
 Swaisland v. Dearsley, 109, 111, 114, 135, 
 
 195, 1038, 1053. 
 Swallow i;. Binns, 1019. 
 Swan, Ex xtarte, TIT. 
 Swann v. Phillips, 104. 
 Swansboroixgh 1'. Coventry, 122. 
 Sweet V. Lee, 226, 232. 
 
 — V. Meredith, 243, 430, 432, 1226. 
 
 — r. Southcote, 904. 
 Sweeting v. Pearce, 191, 659. 
 Sweetland v. Smith, 643. 
 Swift V. Davies, 933, 934. 
 
 — V. M'Ternan, 883. 
 Syers v. Jonas, 963. 
 Sykes v. Dixon, 960, 1047. 
 
 — V. Giles, 178, 191. 
 
 — V. Sheard, 76. 
 
 Symons v. James, 109, 114, 163. 
 
 — V. Symons, 234. 
 Synnot v. Sympson, 890, 901. 
 
 Tait V. Lathbury, 612. 
 Taite v. Swinstead, 62. 
 Talbot V. Ford, 1051. 
 
 — r. Kemshead, 1135. 
 
 — V. Staniforth, 750, 751, 752, 753, 
 754, 758. 
 
 Talbott V. Minnett, 1224. 
 Tallis V. Tallis, 970. 
 Tann, In re, 266. 
 Tanner v. Christian, 186. 
 
 — V. Elworthy, 34. 
 
 — V. Florence, 864. 
 
 — i\ Smart, 216. 
 
 — V. Smith, 161, 950, 972. 
 Taplin v. Florence, 182, 920. 
 Tapling v. Jones, 325, 356, 358. 
 Tapp V. Tanner, 1133. 
 Tarback v. Marbury, 903. 
 Tardiffe v. Scrugham, 736. 
 Tarleton v. Liddell, 757, 892, 899, 907. 
 Tarratt r. Lloyd, 998, 1012. 
 
 Tart V. Darbyd, 436. 
 
 Tarte v. Darby, 252. 
 
 Tasker v. Small, 63, 246, 821, 1005, 1006. 
 
 Tassell V. Smith, 582. 
 
 Tate V. Williamson, 20, 29, 31, 32, 38. 
 
 Tatham v. Piatt, 1033. 
 
 Taverner, Ex parte, 573. 
 
 Tawney v. Crowther, 216. 
 
 — V. Lynn & Ely lly. Co., 210. 
 Taylor's Settlement, In re, 673. 
 'i:Ay\oT, Ex pnrte, 26, 27, 580. 
 
 — Ill re, 82, 260, 714, 723. 
 
 — V. Ashton, 103. 
 
 — V. Baker, 860, 869. 
 
 — V. Beech, 1023, 1027. 
 
 — V. Birch, 215 
 
 — V. Blacklow, -309. 
 
 — r. Brown, 424, 1131. 
 
 Taylor r. Bullen, 93. 
 
 — V. Crowland Co.. 728, 970. 
 
 — V. Debar, 788, 808. 
 
 — V. Forster, 881. 
 
 — V. Gilbertson, 109. 
 
 — V, Hawkins, 598. 
 
 — V. Martindale, 109, 114, 171. 
 ^ V. Meads, 10, 570, 571. 
 
 — V. Midland Ry. Co. 777. 
 
 — V. Portington, 228, 989, 1033. 
 
 — V. Salmon, 184, 1007. 
 
 — r. Stibbert, 866, 884. 
 
 — V. Tabrum, 58, 79. 
 
 — V. Taylor, 258, 936. 
 
 — V. Wheeler, 996. 
 Teall V. Auty, 204. 
 
 — V. Watts, 1187, 1188. 
 Tebbott V. Voules, 261. 
 Teed v. Carruthers, 734. 
 Temperley v. Willett, 968. 
 Templer v. Sweet, 1201, 1203. 
 Tendring v. London, 1057. 
 
 Tennant v. Trenchard, 1194, 1195, 1196. 
 Terrell v. Higgs, 977. 
 Tew V. HaiTis, 624. 
 
 — V. Jones, 440, 816. 
 Tewart v. Lawson, 639. 
 Tewkesbury, Bailiffs of, v. Bricknell, 333. 
 Tenham, Lord, Case of, 899. 
 Thackeray v. Parker, 2, 1187. 
 
 — V. Wood, 786. 
 Thackwell v. Gardener, 1000. 
 Thames Haven Co. v. Brymer, 959, 960. 
 Thelluson v. Woodford, 267. 
 Thicknesse v. Lancaster Ry. Co., 56. 
 Thirtle v. Vaughan, 263. 
 Thistlethwaite v. Garner, 1019, 1020. 
 Thomas, Ex parte, 513. 
 
 — V. Blackman, 207, 1026. 
 
 — V. Buxton, 440. 
 — • V. Cooper, 129. 
 
 — V. Cross, 479. 
 
 — V. Davis, 744, 759. 
 
 — V. Dering, 159, 1002, 1064, 1069. 
 
 — V. Gwynne, 1121, 1220, 1221. 
 V. Hayward, 766, 776. 
 
 — V. Lloyd, 240. 
 
 — V. Phillips, 39, 1128, 1132. 
 
 — V. Powell. 591, 777, 805, 1213. 
 
 — V. Thomas, 343, 357, 367, 385, 
 
 760, 911, 913. 964. 
 — r. Townsend, 69, 1224. 
 Thomlinson r. Smith, 598. 
 Thompson's Settled Estates, In re, 1179, 
 
 1180, 1224. 
 
 — Trusts, In re, 13. 
 Thomjjson, In re, 723, 724, 725. 
 
 — r. Blackstone, 1047. 
 
 — V. Burra, 515, 543. 
 
 — V. Bowyer, 392. 
 
 — V. Cartwright, 878. 
 
 — V. Falck, 883. 
 
 — r. tinch, 657. 
 
 — V. Hakewill, 773, 776. 
 
 — V. Lap worth, 169. 
 
 — ?'. Leach, 5.
 
 TABLE OF CASES. 
 
 Ixxxiii 
 
 Thompson v. Robson, 968. 
 
 — V. Simpson, 380, 810, 841, Si2, 
 
 861. 
 
 — V. Teuton, 409. 
 
 — v. Tomkins, 848, 850. 
 
 — V. Towne, 255. 
 
 — V. Webster, 900, 905. 
 Thomson v. Christie, 163. 
 
 — V. Davenport, 947. 
 
 — V. Miles, 114, 312, 422, 974. 
 
 — ?'. Thomson, 1045. 
 
 — V. Waterlow, 538, 539. 
 Thorald's Settled Estates, hi re, 1178. 
 Thornbury v. Bevill, 230, 231, 234, 1127. 
 Thorndike v. Hunt, 825. 
 
 Thorneley appellant, Aspland respondent, 
 
 242. 
 Thornett v. Haines, 113, 194, 195. 
 Thornhill v. Glover, 1129, 1225. 
 
 — V. Thornhill, 1202. 
 Thornton v. Court, 780, 795. 
 
 — Ex parte, 497, 860. 
 Thoroton, Ex parte, 713, 721. 
 Thorp V. Freer, 1126. 
 
 — V. Owen, 1213. 
 
 — V. Plowden, 355. 
 Thorpe v. Brnmfit, 541. 
 
 — V. Holdsworth, 731, 835, 837, 845. 
 Thurlow V. Mackeson, 79. 
 
 Thynne, Lady, v. Earl of C-lengall, 234, 
 
 1026. 
 Tickle 7\ Brown, 374. 
 Tidd V. Lister, 914. 
 Tierney, In re, 573. 
 Tigris, The, In re, 730. 
 Tildesley v. Clarkson, 92, 9.3. 
 
 — V. Lodge, 247, 828, 917- 
 Tillett V. Charing C'ross Ky. Co., 222. 
 Tilley V. Thomas, 305, 418, 419, 421. 
 'J'ilsey, Ex parte, 1203. 
 
 Timson v. Katnsbottora, 858. 
 Tindal v. Cobham, 1090. 
 Tinkler, In re, 665. 
 Tipping V. Eckersley, 774. 
 
 — V. Power, 1194, 1214. 
 Titley v. Davies, 833, 915, 916. 
 
 — Wolsteuhohne, 607. 
 Tiverton Market Act, In re, 721. 
 Todd V. Gee, 982, 1064, 1126. 
 
 — V. Hoggart, 974. 
 
 — r. Studholme, 1213, 1214, 121.5. 
 Toft?;. SteiAenson, 246, 381, 394, 395, 396, 
 
 397, 400, 629, 732. 
 Toler V. Slater, 570. 
 Toll V. Lee, 239. 
 Tomkins, Ex parte, 83, 1227. 
 
 — White, 120. 
 Tomlin v. Budd, 761. 
 Tomlins r. Totrdins, 347. 
 
 Tiindinson r. Manchester & Birmingham 
 
 Ry. Co., 1045, 1090. 
 Tommey v. Wliite, 50, 73, 1 223. 
 Tompsett r. Wickens, 1216. 
 Tompson v. Knight, 1133. 
 Tomson r. Judge, 40. 
 'J'ookey's 'I'rust, In re, 7 1 8. 
 
 Toppin V. Lomas, 201. 
 
 Torbuck v. Herviton, 577. 
 
 Torrancer. Bolton, 104, 105, 114, 115, 116, 
 
 124, 135, 157, 193, 440. 
 Tottenham v. Byrne, 389. 
 
 — V. Green, 749. 
 
 — &c. Ry. Co., In re, 444. 
 Totton V. Vincent, 851. 
 Toulmin t-. Steere, 878, 917. 
 Tourville v. Na.sh, 805, 824, 837. 
 Towgood, Ex parte, 721. 
 Towaiend v. Toker, 891. 
 Towrdey v. Bedwell, 257, 263. 
 Townsend t;. Champernowiie, 281, 284, 
 
 649, 1011, 1130, 1131, 1136, 
 1140, 1141. 
 
 — r. Westacott, 905. 
 Townshend r. Bishop of Norwich, 234. 
 
 — Marquis of, r. Stangrooni, 64.5, 
 
 652, 1035, 1036, 1037, 1053, 
 1127. 
 
 — V. Wilson, 608. 
 Tracey v. Lawrence, 72, 1138. 
 
 — Peerage, 348. 
 Trafford, Ex parte, 716. 
 Trail v. Bull, 598. 
 
 — V. Kibbiewhite, 347. 
 Trappes v. Harter, 535. 
 Travis r. Collins, 967. 
 Trefusis r. Lord Clinton, 630, 1205, 1216. 
 Treherne i'. Gardner, 501. 
 Treloar v. Bigge, 169. 
 Trench v. Harrison, 939. 
 Trendry, In re, 579. 
 Trent v. Hunt, 185. 
 
 — V. Hanning, 1100. 
 Tress v. Savage, 198. 
 Trevelyan v. Charter, 46, 1118. 
 
 — r. White, 798, 912. 
 Trevor v. Trevor, 346. 
 Trimleston, Lord, v. Kemmis, 326. 
 Trimmer v. Bayne, 733. 
 
 Trinity House, Corp. of. Ex parte, 71 3. 
 
 — Lighthouse Act, In re, 721. 
 
 Tristram v. Harte, 397. 
 Troutbeck v. Boughey, 10, 571. 
 Trower i'. Newcombe, 100. 
 Trut'll r. Tyssen, 63. 
 Tnilock V. Robey, 386. 
 Trusciitt V. Merchant T.iilors' Co., 367. 
 Trutch ;:. Lamprcll, 658. 
 Tryc V. Corp. of Gloucester, 687, 892. 
 Try on. In re, 407, 724. 
 Tubbs V. Broadwood, 941. 
 Tucker v. Barrow, 932, 935. 
 Tuckley v. Thompson, 475, 1194. 
 TuL;\vell r. Hooper, 883. 
 Tulk r. Moxhav, 767. 
 Tail v. Owen, 350, 391. 
 Tullett V. Armstrong, 1004. 
 Tullock V. Tnilock, 1191. 
 Tunstall v. Trappes, 4(il, 853, 857, 858. 
 Turbut.t's Estate, In re, 1175. 
 Turbutt, In re, 1182. 
 Turner's Estate. In re, 717. 
 Turner, In re, 579. 
 
 /•2
 
 Ixxxiv 
 
 TABLE OF CASES. 
 
 Turner v. Beani-ain, 118. 
 
 — V. Buck, 832. 
 
 - — V. Cameron, 133, 53(5, 507. 
 
 — V Cameron's Co., 440. 
 V. Collins, 753, 754. 
 
 — V. Harvey, 85, 104, 107, 1047, 
 
 1080. 
 
 — V. Hind, 1010. 
 
 — t: Letts, 412. 
 
 — V. Maniott, 170, 171, 193, 440, 
 
 773. 
 
 — tK Richardson, 83. 
 
 — V. Robinson, 255. 
 
 — V. Trelawny, 32, 34, 45. 
 
 — V. Wight, i094. 
 Turpin v. Chambers, 158. 
 
 Turquand v. Rhodes, 309, 430, 435, 436. 
 
 — r. Vanderplank, 84(). 
 TuthiUi'. Rogers, 405, 1140. 
 Tweddell v. Tweddell, 753, 817. 
 Tweed v. Mills, 150. 
 Tweedale, //( re, 416. 
 
 — V. Tweedale, 582. 
 Twentyman v. Barnes, 1038. 
 Twiag V. Fifield, 1216, 1217. 
 
 Twining v. Morrice, 195, 1053, 1072, 
 
 1073. 
 Twy cross i\ Moore, 878. 
 Twynam v. Pickavd, 779, 814. 
 Twyne's CVase, 889, 903, 905. 
 Tylden v. Hyde, 598, 617. 
 Tylee v. Webb, 97, 806, 878. 
 Tyler v. Beversham, 645, 744. 
 
 — V. Thomas, 873. 
 
 — V. Yates, 130, 747, 756, 757. 
 Tyndale v. Warre, 1202. 
 
 Tyrer v. King, 951. 
 Tyrrell v. Marsh, 77. 
 Tyrrwhitt r. Tyrrwhitt, 271. 
 Tyson r. Jackson, 381, 395. 
 
 Underbill, Ex parte, 583. 
 Underwood, In re, 472, 583. 
 
 — V. Bedford and Cambridge 
 
 Ry. Co., 212. 
 
 — V. Wing, 344. 
 
 United Land Co. v. G. E. R. Co., 363, 
 
 364. 
 Upjohn V. LTpjohn, 88. 
 Upperton v. Nickolson, 125, 138, 305, 
 
 1073, 1075, 1098, 1114. 
 Uppington r. BuUen, 39. 
 Upton V. Bassett, 887. 
 
 ■ — V. Towneud, 815. 
 Usher V. Scanlan, 1219, 1223. 
 
 Vale V. Devonport, 1208. 
 Valentia, Visct., r. Denton, 751. 
 Valentine v. Dickinson, 74S, 1082. 
 Valpy V. Oakeley, 253, 952. 
 Van V. Corpe, 96, 118, 1036. 
 Vance v. Earl of Ranfm-ley, 544. 
 Vancouver?;. Bliss, 434, lbr3, 1099, 1123, 
 
 1124, 1136. 
 Vandaleur r. Blagrave. 659. 
 Vandenbergh i: fc)])ooncr, 217. 
 
 Vane v. Lord Barnard, 592, 781, 805. 
 
 — Lord, V. Rigden, 78. 
 Vans Agnew r. Stewart, 1223. 
 Vansittart r. Vansittart, 970, 1046. 
 Vardy, In re, 724. 
 Varley v. Coppard, 766. 
 Vaughan v. Hancock, 205. 
 
 — r. Magill, 96. 
 
 — i;. Vanderstegen, 11, 1003, 1004. 
 Vaughton r. Noble, 34. 
 
 Vavasour, In re, 1224. 
 Vawser v. Jeffery, 256. 
 Venezuela, Central Ry. Co. of, v. Kisch, 
 
 106. 
 Venner's Settled Estates, In rf, 1 1 75, 1 1 81. 
 Ventilation and Sanitary Improvement 
 
 Co. V. Edelsten, 1134. 
 Verlander r. Codd, 225, 227. 
 Verner r. Winstanley, 822. 
 Vernon v. Keys, 108. 
 
 — V. Stevens. 193. 
 Vesey v. Elwood, 630, 1202. 
 Vick r. Edwards, 1138. 
 
 Vickers v. Hand, 128, 628, 639, 641. 
 
 — V. Scott, 58. 
 
 — r. Vickers, 122, 224. 
 Vigers v. Pike, 747, 802, 1080, 1081. 
 Vignolles r. Bowen, 95, 96,114, 139, 1047. 
 Vincent v. Goring. 399, 1201. 
 
 Viney v. Chaplin, 655, 656. 
 
 — V. Willington, 397. 
 Vint r. Padgett. 582, 693, 915. 
 Volant V. Sayer, 881. 
 
 Vouillon V. States, 225, 1035, 1037, 1040, 
 
 1042. 
 Vorley v. Cooke, 826. 
 
 — V. Richardson, 1019. 
 Voyle V. Hughes, 900. 
 
 Wace V. Bickerton, 792. 
 Waddell V. Wolfe, 146, 150, 152. 
 Wadderburn v. Wadderburn, 49. 
 Waddington r. Bristow, 203. 
 Wade, In re, 882. 
 
 — V. Dowling, 625. 
 Wadeer v. East India Co., 882. 
 Wadham v. Rigg, 940. 
 Wagstaff V. Wagstaff, 269, 270. 
 Waine Wright, In, re, 688. 
 
 — r. Elwell, 693. 
 
 — V. Hardisty, 1000. 
 Wake V. Harrop, 231. 
 
 Wakefield r. Duke of Buccleuch, 370. 
 
 — r. Gibbon, 753, 899, 907. 
 
 — V. Llanelly Ry. Co., 626. 
 
 — r. Newbon, 412, 731. 
 Wakeman v. Duchess of Rutland, 321, 
 
 545, 552, 777, 1009, 1119. 
 Walcott r. Condor. 506. 
 
 — V. Lynch, 247. 
 Waldron v. Forester, 631. 
 
 — V. Howell, 54. 
 
 — V. Sloper, 844. 
 W^aldy V. Gray, Addenda. 
 Walford V. Beazeley. 207. 
 
 — r. Grav. 1028. 
 
 i
 
 TABLE OF CASES. 
 
 Ixxxv 
 
 Walker's Case, •29-2. 
 Walker, Ex parte, '259, 261. 
 
 — In re, 714. 
 
 — r. Astou, 1220. 
 
 — V. Barnes, 1:')/, 1070. 
 
 — V. Barnett, (il7. 
 
 — r. Bartlett, 201, 292, 988. 
 ■ — ■ V. Beanchamp, Earl, 350. 
 
 — V. Beauchairip, Lady, 3-18. 
 
 — r. Bentley, 295, 353, 1138. 
 
 — V. Broadhurst, 794, 952. 
 
 — V. Eastern Coxxnties Ry. Co., 210, 
 
 992. 
 
 — V. Jeffreys, 420, 1086. 
 
 — V. Moore, 951, 952. 
 
 — r. Richardson, 687. 
 
 — V. Shore, 59. 
 
 — r. Smallwood, 60. 
 
 — V. Taylor, 603. 
 
 — r. Ware, Hadham, & Buntingford 
 
 Ry. Co., 447, 741, 1092. 
 Wall r. Bright, 245, 246, 262. 
 
 — V. Hall, 1179. 
 
 — V. City of London Real Property 
 
 Co., 956. 
 
 — V. Stubbs, 1080. 
 
 Wallace i'. Attorney- General, 278. 
 
 — V. Cook, 569. 
 
 — V. Kelsall. 660. 
 
 — V. Marquis of Donegal, 838, 857, 
 
 863. 
 
 — r. Wallace, 753. 
 Waller v. Barrett, 1218. 
 
 — V. Ilorsfall, 969. 
 Wallinger r. Hilbert, 1075. 
 Wallis, Exitartc, 573, 574. 
 
 — V. Bastard, 631. 
 
 — V. Harrison, 920. 
 
 — r. Morris, 468, 479. 
 
 — r. Sarel, 630, 640. 
 
 — V. Wallis, 1133. 
 
 — V. Woodyear, 435, 437, 1113. 
 Wallop's Trust, //;, re, 276, 278. 
 Wallwyn v. Coutts, 890. 
 
 — V. Leo, 412, 832, 834, 835. 
 Walmsley v. Jowett, 1139. 
 
 — V. Milne, 536. 
 Walrond v. Walrond, 1048, 1202, 120). 
 Walpole, Lord, v. Earl Cholniondeley, 964. 
 Walsh, In re, 304, 724. 
 
 — r. Trevanion, 530, 881, 882. 
 
 — V. 'J'rininier, 354. 
 Walsliam v. Stainton, 881. 
 Walsingliam, Ijord, r. Goodricke, 883. 
 Walter r. Maunde, 95, 131. 
 
 — V. Selfe, 775, 921. 
 Walters, In re, 726. 
 
 — V. Jackson, 1221, 
 
 — V. Jones, 1225. 
 
 — V. Northern Coal Co., 992, 1087. 
 
 — V. Pymau, 1125. 
 
 — r. Webb, 404. 
 Waltham, Lord, Case of, 1099. 
 Walton r. Holt, 1100. 
 
 — V. Earl of Stamford, 885. 
 Wanden v. Jones, 890. 
 
 Want r. Stallibrass, 63, 1060, Addenda. 
 Warburton v. Tarn, 76, 77. 
 V. Hill, 480. 
 
 — V. Loveland, 856, 902, 
 
 — V. Sandys, 58, 605. 
 
 — V. Vaughan, 1121, 1221. 
 Ward's Legacy, //( re, 53. 
 
 Ward, Ex parte, 665. 
 
 — and Henry's Case, 292. 
 
 — Lord, V. 0. W., and W. R. Co., 660. 
 
 — V. Audland, 900. 
 
 — V. Cook, 1204. 
 
 — V. Ghrinies, 126. 
 
 — V. H"artpole, 39. 
 
 — V. Moore, 268. 
 
 — V. Shakeshaft, 466, 113,5. 
 
 — V. Trathen, 309, 1209, 1216. 
 
 — V. Ward, 363. 
 
 — r. Wolverhampton Waterworks 
 
 Co., 822. 
 Warde v. Dickson, 155, 158, 159. 
 
 — V. Jeffery, 421. 
 
 — V. 883. 
 Warden r. Jones, 1027. 
 
 — &c., of Dover v. S. E. Ry. Co., 562. 
 Wardle r. Brocklehurst, 534, 540. 
 
 — • V. Carter, 750, 754. 
 Ware r. Cann, 19. 
 
 — V. Lord Egmont, 863, 874. 
 
 — V. Gardner, 909. 
 
 — V. Watson, 1109, 1200, 1206. 
 Waring v. Hoggart, 119. 
 
 — V. Manchester Ry. Co., 1046, 1 084. 
 
 — t'. Ward, 557, 817. 
 — • r. Waring, 28. 
 
 Warlow ?•. Harribon, 178, 194. 
 
 Warn r. Bickford, 787. 
 
 Warne, In re, 576. 
 
 Warneford v. Thompson, 1138. 
 
 Warner v. Willington, 218, 227, 229, 230. 
 
 Warner's Case, 21. 
 
 Warnford r. Heye, Addenda. 
 
 Warren?'. Batenian, 171, 324. 
 
 — V. Howe, 527. 
 
 — V. Richardson, 432, 1113. 
 Warrender v. Foster, 590. 
 Warwick v. Bruce, 203. 
 Warwicke v. Noakes, 123. 
 Wason V. Waring, S()3. 
 Waterer r. Waterer, 926, 927, 928. 
 Waterhouse v. Stansfield, 529, 987. 
 
 — r. Wilkinson, 1190, 1202. 
 
 W^aterpark, Lord, v. I'ennell, 333, 
 Waters v. (iroom, 36, 38. 
 
 — V. Thorno, 40, 41, 754. 
 
 — r. Towers, 952. 
 Watkins v Cheek, 602. 
 
 — r. Williams, 65. 
 Watling r. Horwood, 237. 
 Watlington v. Waldron, 68. 
 Watson, In re, 669. 
 
 — V. Birch, 394, 120(). 
 
 — V. Cox, 122(5. 
 
 — V. Eales, 292. 
 
 — V. England, 340, 344. 
 
 — V. Lyon, 413.
 
 Jxxxvi 
 
 TABLE OF CASES. 
 
 Watson r. Marston, 994, 1050, 10(54. 
 
 — v. Poulsou, 10.J. 
 - — V. Reid, 1086. 
 
 — V. Spratloy, 201. 
 
 — r. Toone, 35. 
 Watt V. Evans, 1026. 
 Watts, Ex parte, 37. 
 
 — V. Creswell, 841. 
 
 — V. Girdlestone, 61. 
 
 — V. Hammond, 179. 
 
 — V. Jeffereys, 474. 
 
 — V. Kelson, 360, 364, 453, 537, 538, 
 
 539, 540. 
 
 — V. Martin, 1204. 
 
 — V. Porter, 454, 480, 481. 
 
 — V. Symes, 506, 917. 
 
 — V. Watts, 210, 259, 263. 
 Waugk, In re, 583. 
 
 — V. Wyche, 62, 656. 
 Way, Ex parte, 575. 
 Way's Trust, In re, 901. 
 Wayn v. Lewis, 1192. 
 Wearing v. Ellis , 30. 
 Webb V. Austin, 283. 
 
 — V. Byiig, 269, 293. 
 
 -v. Direct London & Portsnionth 
 
 Ry. Co., 190, 988, 1051, 1052, 
 1053, 1083. 
 
 — V. Direct P. Ry. Co. 988. 
 
 — V. Haycock, 347. 
 
 — V. Hugbes, 419, 421, 422, 424. 
 
 — V. Kirby, 146, 193, 569, 1141. 
 
 — V. Lesam, 607, 656, 657. 
 
 — V. Manchester, &c., Ry. Co., 214 
 
 — V. Rorke, 36. 
 
 — V. Russell, 765. 
 Webber, Ex parte, 575. 
 
 — V. Jones, 1219. 
 Webster, In re, 719. 
 
 — r. Birchniore, 342. 
 
 — r. Cecil, 1038. 
 
 — V. Cook, 750. 
 
 — V. Donaldson, 248, 441. 
 
 — V. S. E. Ry. Co., 445. 
 
 — V. Web.ster, 839. 
 
 Weddell v. Nixon, 320, 630, 1008, 1130. 
 Wedderbuin v. Wedderbiu-n, 49. 
 WJedgwood r. Adams, 1051, 1063, 1123, 
 
 1132. 
 Weeding, In re, 589. 
 
 _ V. Weeding, 258, 263. 
 Weedon v. Woodbridge, 961. 
 Weeks v. Stonrton, 676. 
 Weir V. Chawley, 1104, 1141, 1210, 1223. 
 Welchman, In re, 724, 725. 
 Welcome v. Upton, 325, 334, 372, 373. 
 Welford i'. -Beasely, 234, 875. 
 Wellesley v Wellesley, 942. 
 Wells, In re, 723, 726. 
 
 — V. Kilpin, 479. 
 
 — r. Maxwell, 420, 421, 423, 989, 990. 
 Welstead v. Colville, 61)5. 
 
 Wensley, Ex parte, 694. 
 Wentworth v. Lloyd, 35. 
 West V. Berney, 1139. 
 
 — V. Dobb, 766. 
 
 West V. Jones, 106, 659, 730, 842. 
 
 — 1-. Reid, 862, 864, 875, 876. 
 
 — V. Vincent, 1205. 
 
 — r. Midland Ry. Co, v. Nixon, 1005, 
 1006. 
 
 Westbrook r. Blythe, 456, 459, 488, 854. 
 
 — V. Kerrick, 384. 
 Westby v. Westby, 753. 
 
 Western t. McDermott, 768, 773, 775. 
 
 — V. Pen-in, 1127. 
 
 — v. Russell, 226, 231, 233, 1065, 
 1080. 
 
 Westmeath r. Westmeath, 1047. 
 Westminster, Dean of. Ex parte, 666. 
 Weston V. Bird, 121. 
 
 — V. Collins, 208. 
 WetenhaU v. Dennis, 1214. 
 Wethered v. Wethered, 810. 
 Wetherell v. Weighill, 353. 
 Whalev v. Bagnell, 216, 1026. 
 Whalley v. Whalley, 754. 
 Wliarton, In re, 1224. 
 Whatman v. Gibson, 767, 768. 
 Wheat V. HaU, 1140. 
 Wheatley v. Purr, 900. 
 
 — V. Slade, 1066. 
 AVheeler, In re, 584. 
 
 — V. CoUier, 194, 195, 217. 
 
 — V. D'Esterre, 1033. 
 
 — V. Howell, 399, 614. 
 
 — V. Wright, 146. 
 Whelpdale r. Cookson, 44. 
 Whichcote v. Bramston, 750. 
 
 — V. Lawrence, 48. 
 Whitaker r. Wisbey, 13. 
 
 Whitbread t. Jordan, 311, 414, 678, 869. 
 
 — V. Smith, 890, 901. 
 Whitchurch v. Bevis, 1023, 1026, 1034. 
 
 — V. Whitclnuch, 270. 
 
 Whitcombe, In re, 723, 725. 
 
 — r. Minchin, 37. 
 Wehit's case, 292, 416. 
 White V. Bartlett, 180. 
 
 — V. Baylor, 460. 
 
 — V. Bradshaw, 136. 
 
 — v. Cuddon, 110, 114, 117, 141, 
 
 175, 998, 1014, 1041, 1048, 
 1069, 1132. 
 
 — V. Damon, 994, 1057, 1080, 1081. 
 
 — r. Foljambe, 85, 324, 1127. 
 
 — V. Gaider, 970. 
 
 — V. Garden, 759. 
 
 — V. Hill, 335. 
 
 — V. James. 1192. 
 
 — v. Lisle, 334. 
 
 — V. Nutt, 248. 
 
 — V. Proctor, 182, 232. 
 
 — V. Wackley, 165. 
 
 — r. Wakefield, 730, 874. 
 
 — V. Wilson, 1205, 1206. 
 Whiteacre, Ex parte, 332. 
 Whiteley's Settled Estates, In re, 1170. 
 Whitfield, Inc. of, In re, 664. 
 
 — r. Lequestre, 1209. 
 
 — V. Roberts, 1195, 1193. 
 Whitlow v. Dihvorth, 341.
 
 TABLE OF CASES. 
 
 Ixxxvii 
 
 Whitinel *•. Farrel, 1061. 
 Whitinore v. Drake, 1139. 
 
 — V. Mackeson, 97. 
 
 — f. Whitmore, 142. 
 Whittaker v. Whittaker, 265, 1112. 
 Whittemore v. Whittemore, 648, 653, 
 
 1074. 
 Whittington r. Corder, 115, 116, 118. 
 Whittle r. Henning, 1002. 
 Whitworth v. Davies, 253. 
 
 — r. Gaugain, 851. 
 Whorwood v. Whorwood, 943. 
 Wickenden v. Eayson, 1192. 
 
 — V. AVebster, 505, 774. 
 Wickens v. Windus, 851. 
 Wickham v. Bath, Marquis of, 686. 
 
 — V. Evered, 1091. 
 
 — V. Hawker, 372, 540. 
 
 — V. Nicholson, 1192, 1193. 
 Wicks V. Hunt, 982. 
 
 Widdow's Trusts, In re, 346. 
 Wigan Glebe Act, In re, 664. 
 W^igg V. Wigg, 247, 824, 831. 
 Wiggins V. Lord, 178. 
 Wigmore t. Joyce, 699. 
 Wilbraham v. Livesay, 95, 451, 452. 
 Wilcock V. Purchase, 342. 
 Wilcocks V. Wilcocks, 941. 
 Wilcox V. Marshall, 1016. 
 
 — V. Smith, 275. 
 Wild r. Hillas, 785. 
 
 — V. Lockhart, 1215. 
 Wilde V. Gibson, 103, 104, 748, 801, 802, 
 803, 878, 1015. 
 
 — V. Wilde, 1233, 1134. 
 Wildgoose v. Mayland, 858. 
 Wilding V. Andrews, 1212. 
 
 — V. Richards, 890. 
 
 Wiles V. Gresham, 75, 86, 611, 941, 943. 
 
 — V. Woodward, 523, 810. 
 Wilker v. Bodington, 831. 
 Wilkins v. Fry, 558. 
 
 — V. Sibley, 878. 
 
 Wilkinson's Mortgaged Estates, In re, 
 
 1185. 
 Wilkinson, Ex parte, 665, 724. 
 
 — In re, 590. 
 
 — V. Charlesworth, 578. 
 
 — V. Duncan, 58, 59. 
 
 — V, Fowkes, 757, 759. 
 
 — V. Hartley, 175, 1096, 1130. 
 
 — r. Lloyd, 945. 
 
 — V. Nelson, 744. 
 
 — V. Rogers, 505, 766, 772. 
 
 — V. Torkington, 1117. 
 Wilks V. Groom, 584, 658. 
 
 — V. Smith, 961. 
 Willan V. Willan, 754, 1053. 
 Willats V. Busby, 997. 
 Willcox V. Bellaers, 1127, 1138. 
 Willes V. Greenhill, 857, 858, 879. 
 
 — V. Levett, 271. 
 Willing V. S. E. Ry. Co., 442. 
 Williams's Estate, In re, 256, 1219. 
 
 — Ex parte, ^7\), 6^^. 
 
 — In re, 724. 
 
 Williams v. Ashton, 416. 
 
 — V. Attenborough, 1195 1204, 
 1217. 
 
 — V. Avlesbury & Bucks R. Co., 
 
 664. 
 
 — V. Bailey, 1048. 
 
 — V. Bavley, 104, 1054. 
 
 — V. Bland, 321, 1064, 1140. 
 
 — V. Burrell, 782. 
 
 — V. Byrne, 217. 
 
 — V. Carter, 770, 1058. 
 
 — V. Chester and Holyhead Ry. 
 
 Co., 236. 
 
 — V. Craddock, 458. 
 
 — V. Cr<jwder, 187. 
 
 — V. Earle, 766, 956. 
 
 — V. Edwards, 160, 193, 1067, 
 
 1124, 1132, 1136. 
 
 — V. Evans, 178, 191, 537. 
 
 — V. Games, 1188. 
 
 — V. Glenton, 128, 421, 426, 631, 
 
 634, 640, 709, 955, 1128. 
 
 — V. Higden, 982, 1068. 
 
 — V. Lake, 217. 
 
 — V. Lambe, 832. 
 
 — V. Lomas, 1134. 
 
 — V. Millington, 178. 
 
 — V. Morgan, 533. 
 
 — V. Owen, 822. 
 
 — V. Prothero, 241. 
 
 — V. St. George's Harbour Co., 
 
 57, 189. 
 
 — V. Shaw, 252, 1014. 
 
 — V. S. Wales Ry. Co., 445. 
 
 — V. Teale, 1118. 
 
 — V. Thomas, 940. 
 
 — V. Wace, 12n. 
 
 — V. Wentworth, 6. 
 
 — V. Williams, 231, 232, 753, 934, 
 
 1008, 1030, 1174. 
 Williamson v. Barton, 185, 947. 
 
 — V. Seaber, 46. 
 
 — V. Wootton, 221, 1046. 
 Willis V. Bank of England, 845, 846. 
 
 — V. Brown, 685. 
 
 — V. Hiscox, 18, 581. 
 
 — V. Willis, 932. 
 Wilcock V. Dargan, 460. 
 Willoughby v. Backhouse, 971. 
 
 — V. Bridecake, 759. 
 
 — V. Middleton, 522. 
 
 — V. Willoughby, 824, 828, 830, 
 831. 
 
 Wills V. Bridge, 704. 
 — V. Stradling, 1024, 1025, 1026, 
 1029. 
 Will ways Trusts, In re, 1185. 
 Wihuot V. Pike, 451, 838. 
 
 — V. Wilkinson, 150, 239. 
 Wilson, In re, 84, 254, 558, 795. 
 
 — V. Allen, 323, 1130. 
 
 — V. Bennett, 52, 606, 608, 1021, 
 
 113S. 
 
 — V. Clapham, 628, 649, 1126. 
 
 — V. Eden, 269. 
 
 — V. Foreman, 941.
 
 Jxxxvui 
 
 TAliLE OF CASES. 
 
 Wilson V. Foster, 719. 
 
 - V. Fuller, 03, 102, 802, 970. 
 r. Furness, Ry. Co., <jyi. 
 
 — V. Greenwood, 1195. 
 
 — V. Hart, 184, 453, 767, 770, 871. 
 
 — V. Kearse, 26. 
 
 — V. Keating, 738. 
 
 — V. Knubley, 796. 
 
 — V. Leonard, 562. 
 
 — V. Northampton and Banljnry Ry 
 
 990, 991. 
 
 — V. Rastall. 881, 
 
 — 17. SeweU, 37. 
 
 — V. Short, 241. 
 
 - — V. Tummon, 188. 
 
 — V. West Hartlepool Ry. Co., 183. 
 
 1S9, 1024, 1030, 1032. 
 
 — V. AVhateley, 535, 1019. 
 
 — V. Wilkinson. 
 
 ^ V. Williams, 274, 515, 997, 1002, 
 1064, 1065, 1068, 1069, 1130. 
 
 — V. Wilson, 170, 231, 891, 945, 
 1048. 
 
 Wilts, S., &c. Ry. Co. v. Fooks, 626. 
 Wiltshear v. Cottrell, 132, 534. 
 Wiltshire V. Rabbits, 451, 838, 839. 
 
 — ■ r. Sims, 178. 
 Wimbush, Ex parte, 579. 
 Winch V. Winchester, 652, 1040, 1127. 
 Winch elsea. Earl of, v. Norclifife, 87. 
 Winchester, Bishop of. Ex parte, 666. 
 
 — V. Mid Hants. Ry. Co., 447, 
 741, 742, 996, 1006, 1092 
 
 — V. Paine, 1139. 
 
 — College, Warden of, Ex parte, 
 667. 
 
 Windsor, &c., R. Act, In re, 636, 717. 
 Wing V. Angrave, 344. 
 
 — V. Tottenham & Hamjistead Juno. 
 Ry. Co., 447, 741, 1092. 
 
 Winged v. Lefebury, 253. 
 Winship v. Hudspeth, 374. 
 Winter, In re, 1145, 1147. 
 AVinter v. Lord Anson, 656, 730, 734, 
 736, 737. 
 
 — V. Blades, 634. 
 
 — V. Brockwell, 201. 
 
 — f. Vizetelly, 1133. 
 Winterbottom, In re, 725. 
 
 — V. Ingham, 252, 439, 958, 
 
 1098. 
 Wise V. Beresford, 473. 
 
 — f. Wise, 857, 878. 
 Wiseman r. Beake, 50, 751. 
 Wishart v. Wylie, 368. 
 Witehcot V. Zouch, 58. 
 Withington r. Tate, 877. 
 
 Withy V. Cottle, 419, 986, 987, 1096. 
 Witty, Ex parte, 573. 
 Wodehouse v. Farebrother, 980. 
 WoUaston v. Hakewill, 313. 
 
 — V. Tribe, 894, 898, 904. 
 Wolley, Ex parte, 714, 716. 
 
 — V. North London Ry. Co., 968. 
 
 — V. Jenkins, 62, 1140. 
 
 — V. Pole, 963. 
 
 Wolseley v. Cox, 706. 
 Wolveridge v. Steward, 557. 
 Wombwell r. Laver, 938. 
 Wood, In re, 583, 688. 
 
 — V. Epsom R. Co., 214. 
 
 — r. Ex iKirte, 626. 
 
 — V. Abrey, 747, 750, 758. 
 
 — V. Beetlestone, 1140, 1220. 
 
 — '/;. Bernal, 426, 1078. 
 
 — V. Birch, 924, 926, 930. 
 
 — V. Cooper, 98. 
 
 — V. Copper Miners' Co., 544, 960, 
 
 980. 
 
 — V. Court, 279. 
 
 — V. Dixie, 905. 
 
 — V. Downes, 50, 240. 
 
 — r. Griffith, 240, 1068. 
 
 — V. Harman, 609. 
 
 — V. Lake, 199. 
 
 — V. Lambirth, 576. 
 
 — V. Leadbitter, 199, 920. 
 
 — V. Mahu, 424, 1096, 1097, 1098. 
 
 — v. Manley, 113. 
 
 — ^'. Marquis of Londonderry, 886, 
 
 887. 
 
 — V. Midgley, 221, 228, 1023, 1035. 
 
 — V. Patteson, 2. 
 
 — V. Richardson, 1047, 1138. 
 
 — V. Rowcliffe, 532. 
 
 — V. Scarth, 219, 227, 950, 1037, 
 
 1038. 
 
 — V. Waud, 364, 366, 367. 
 
 — V. White, 62, 1005, 1006, 1115. 
 W^oodhall, In re, 579. 
 
 Woodcock's Trusts, In re, 1180, 1181, 
 
 1224. 
 Woodcock, In re, 579. 
 
 — V. Titterton, 404. 
 Woodhouse v. Jenkins, 785. 
 
 — V. Meredith, 34. 
 Woodman v. Higgins, 413. 
 
 — r. Morrel, 934. 
 Woodroff V. Greenwood, 783. 
 Woodroffe v. Allen, 751. 
 Woods V. Huntingford, 817. 
 Woodward v. Miller, 111, 195, 1133. 
 Woollam V. Hearne, 1036, 1037. 
 Woolstencroft v. Woolstencroft, 820. 
 Wootton V. Steffanoni, 23. 
 Worcester, Bishop of r. Parker, 832. 
 Worley v. Frampton, 85, 172, 550, 551. 
 Wormald v. Maitland, 854-870. 
 WorraU v. Jacob, 891. 
 
 Worsley v. S. Devon Ry. Co., 57, 443, 
 
 447. 
 Wortham v. Lord Dacre, 708, 709, 1128. 
 
 — V. Pemberton, 9, 578. 
 Worthington, In re, 573. 
 
 — V. Gimson, 538, 540, 541. 
 
 — V. Morgan, 415, 678, 731, 
 
 867, 869, 87.5, 877. 
 
 — V. Wan-ington,145,150,237, 
 950. 952. 
 
 Wootton's Estate, In re, 666. 
 Wray v. Steele, 930. 
 Wren v. Kirton, 1217.
 
 TABLE OF CASES. 
 
 Ixxxix 
 
 Wright, Ex parte, 808. 
 
 — In re, 679. 
 
 — V. Bigg, 183. 
 
 — V. BuiToughs, 814. 
 
 — V. Colls, 945. 
 
 — - ?•. Commissionersof Revenue, 707. 
 
 — V. Dannah, 182, 183. 
 
 — V. Fearnlev, 846. 
 
 — v. Goff, 744, 1037. 
 
 — V. Howard, 364, 419, 420, 1073, 
 
 1132. 
 
 — V. Kirby, 1215. 
 
 — r. Maunder, 67, 81. 
 
 — V. Pitt, 272, 559. 
 
 — V. Smythies, 327. 
 
 — r. Snowe, 4, 841. 
 
 — V. Stansfield, 679. 
 
 — V. Stewart, 204. 
 
 — V. Vanderi)lank, 20, 39, 48, 751, 
 
 753, 759. 
 
 — V. Vernon, 883. 
 
 — r. Williams, 367. 
 Wright V. Wilson, 135. 
 
 — V. Woodham, 1020. 
 Wrightson v. Hudson, 693, 853. 
 Wrigleyi*. Sykes, 53, 61, 519., 617, 618, 
 
 621. 
 Wrixon v. Vize, 378, 395. 
 Wrout V. Dawes. 659, 738. 
 Wyatt r. Barwell, 853, 857. 
 Wych V. Parker, 910. 
 Wycherley ?•. Barnard, 1109. 
 Wycombe Ry. Co. v. Donnington Hospital, 
 
 62.5. 
 Wyllie r. Ellice, 913. 
 Wynn v. Morgan, 1058. 
 Wynne v. Griffith, 282, 1093. 
 
 — V. Price, 292, 986, 988. 
 
 — V. Styan, 391, 394. 
 
 — V. Tyrwhitt, 311. 
 Wynterr. Bold, 614. 
 Wythe V, Henniker, 733. 
 
 Withes r. Lee, 193, 440. 
 
 Wyvill V. Bishop of Exeter, 250, 419, 1131 
 
 Xenos V. Wickham, 566. 
 
 Yallop, Ex parte, 930. 
 Yarnall, Ex parte, 579. 
 Yarnold r. Wallis, 268. 
 Yates V. Farebrother, 179. 
 
 — V. Gardiner, 961. 
 
 — r. Hoppe, 186. 
 
 — V. Jack, 357, 359. 
 
 — r. Plumbe, 678. 
 Yea v. Field, 731. 
 Yeates, In re, 668, 716, 719. 
 Yem r. Edwards, 166. 
 Yescombe r. Lander, 474. 
 Yonger. Furze, 817. 
 
 — V. Reynell, 1054. 
 
 York Buildings Co., r. Mackenzie, 32, 34, 
 46, 47, 48. 
 
 ■ — and N. M. Ry. Co., v. Hudson, 
 1099. 
 
 — r. Reg., 980. 
 Yorke, Ex parte, 36. 
 Young V. Guy, 191, 659, 1121. 
 
 — V. Raincock, 523, 790. 
 
 — V. Roberts, 1138. 
 
 — V. Smith, 522, 523. 
 
 — r. W^hite, 658. 
 
 — V. Young, 826, 829, 1187. 
 Younger. Clare Hall, 355. 
 
 — V. Buncombe, 1090, 1091. 
 
 — r. English, 520. 
 
 — V. Lord Waterpark, 380, 381, 3S 1, 
 
 393. 
 
 — V. White, 191, 658. 
 Younghusband v. Gisboriie, 470. 
 
 Zouche V. Parsons, 2, 8. 
 
 — V. Swaine, 797.
 
 TABLE OF STATUTES CITED 
 
 PAGE 
 
 27 Hen. VIII., c. 10.— Statute of Uses. ... 514 608 
 
 32 Hen. VI 11, c. 9.— Sale of Pretended Titles . . .'239 
 c. 16.— Aliens 22 
 
 33 Hen. VIII., c. 39.— Crown Debts * 493 
 
 13 Eliz., c. 4.— Crown Debts 493 
 
 c. 5.— Fraudulent Deeds . . . 354,567,9(1.5,937 
 
 27 Eliz., c. 4.— Voluntary Conveyances . 473, 889, 903, 904, 937 
 29 Eliz., c. 5. — Perijetuating 13 Eliz., c. 5 . . . . go5 
 39 Eliz., c. 18, s. 31. — Perpetuating 27 Eliz., c. 4 , . . 889 
 
 1 Jac. I., c. 15, s. 5. — Purchase by Bankrupt Trader . . 938 
 21 Jac. I., c. 14. — Adverse Possession against Crown . , . 405 
 
 13 Ch. II., c. 6. — Proof of Death of cestui que vie . . 341 
 
 29 Ch. II., c. 3.— Statute of Frauds ! 197 
 
 4 & 5 Will. & Mary, c. 20. — Dockettiucr Judgments . . 458, 459 
 7 & 8 Will. III., c. 25.— Conveyances for Splitting Votes . . ' 242 
 
 4 Anne, c. 16, s. 9.— Attornment of Tenants, &c. . . 814 920 
 
 5 Anne, c. 18. — West Eiding Registry Act . . , 488* 852 
 
 6 Anne, c. 18. — Production of cestui que vie . . . . 342 
 
 c. 35. — East Riding Registry Act, and Amending 
 
 West Riding Registry Act . 562, 682, 852 
 
 7 Anne, c. 5. — Naturalization Act . . . ... 23 
 
 c. 20. — Middlesex Registry Act . . . 488 682 852 
 
 10 Anne, c. 18. — Inrolment of Crown Leases, and as' to ' 
 
 Bai'gains and Sales 313 
 
 c. 23. — Preventing Fraudulent Conveyances for Mul- 
 tiplying Votes ...... 242 
 
 12 Anne, c. 9, s. 24.— Several Stamps for DiflFerent Matters ." 705 
 
 c. 1 2. — Simony ........ 243 
 
 9 Geo. I., c. 7. — Poor Law 21 
 
 4 Geo. II., c. 21. — Naturalization, &c .23 
 
 7 Geo. II., c. 20. — Foreclosure and Redemption of Mortgao'es . 271 
 
 8 Geo. II., c. 6.— North Riding Registry Act . sel" 682 852 
 
 9 Geo. II., c. 5. — (Ii-eland) Proof of Lease for a Year . . ' 314 
 
 c. 36. — Mortmain Act 264 686 
 
 14 Geo. II., c. 20, s. 4. — Common Recoveries . . . 316' 851 
 1 Geo. III., c. 3.— (Ireland) Proof of Lease for a Year . . ' 314 
 9 Geo. III., c. 16. — Amending 21 .Jac. I., c. 3 . . . . 405 
 
 11 & 12 Geo. III., c. 10. — Irish Mortgage Act . . . '. 39^ 
 
 13 Geo. III., c. 21. — Alien Act .23 
 
 14 ( Jco. III., c. 78. — Metropolitan Building Act . . . . 766 
 25 Geo. III., c. 35. — Sale of Lands of Crown Debtors . . 1211 
 
 37 Geo. III., c. 97.— Naturalization of Subjects of United 
 
 States ........ 24 
 
 c. 136. — Stamp Duties, &c 694 
 
 38 Geo. III., c. 60.— Land Tax . . . 352,690,916,1002 
 
 41 Geo. III., c. 109. — Inclosurc Act .... 33 310 
 
 42 Geo. III., c. 116. — Land Tax Redemption . . 15, 352' 690 
 44 Geo. III., c. 98. s. 14. — As to Unciualified Conveyaucex's . ' 728 
 c. 98. s. 24. — Stamp Remission of Penalty . . 694
 
 xcii TADLE OF STATUTES CITED. 
 
 PAGE 
 
 47 r4eo. III., c. 74.— Peal Estate Assets for Debts . . 622 
 
 48 (Jeo. III., c. 47.— Title as against Crown . . . 405, 852 
 c. 149.— Stamps ... 525, (596, 704, 1224 
 
 52 Geo. III., c. 101.— Charitable Trusts (Sir S. Eomilly's Act) 17 
 
 53 Geo. III., c. 102.— Insolvent Debtors Relief . . . 54, 317 
 
 c. 127. s. 5. — As to Liability to Account for Tithes 377 
 
 c. 141, s. 8. — Avoiding Contracts for Sale of An- 
 nuity by Infant . . . 4, 25 
 
 54 Geo. III., c. 70. — Land Tax Eedemption . . .15 
 
 c. 145. — Removing CoiTuption of Blood . . 12 
 
 c. 173. — Land Ta.x Redemption . . . .851 
 
 55 Geo. III., c. 147. — Exchange of Ecclesiastical Property . . 287 
 c. 184.— Stamp Duties . 525, 526, 696, 7(>3, 704, 707 
 
 56 Geo, III., c. 52.— Exchange of Ecclesiastical Property . . 287 
 
 57 Geo. III., c. 100.— Land Tax Redemption . . . 15, 851 
 1 Geo. IV., c. 6. — Exchange of Ecclesiastical Property . . 287 
 1 & 2 Geo. IV., c. 92.— Charity Lands Exchange . , . 288 
 3 Geo. IV. c. 126.— General Tnrn))ike Act ... .998 
 
 5 Geo. IV., c. 74. — Weights and ^Measures Uniformity . . 644 
 c. 84. s. 26.— Eflfect of Pardon of Felons . . . 13 
 
 6 Geo. IV., c. 8. — Exchange of Ecclesiastical Property . 287 
 c. 16.— Bankruptcy 29, 30, 83, 237, 254, 317, 460, 513, 
 
 845, 846, 938, 995 
 
 . c. 104, s. 7.— Crown Debtors . ... 493 
 
 c. 105, s. 13. — Crowni Debtors .... 493 
 
 7 Geo. IV., c. 57.— Insolvent Debtors Relief . . . • 317 
 
 9 Geo. IV., c. 14, s. 5.— Guarantee of Promises . . 26, 104 
 
 c. 31, s. 2. — Treason and Felony . . . . 12 
 
 c. 61.— General Licensing Act ... . 419 
 
 10 Geo. IV., c. 7. — Catholic Emancipation . . . . 29 
 c. 50. — AVoods and Forests . . , • . 852 
 
 c. 56. — Friendly Societies Law Amendment . . 699 
 
 1 Will. IV., c. 36. — Execution of Conveyance by Master 1120, 1121 
 
 . . c. 38. — Insolvent Debtors 851 
 
 . c. 47. — Payment of Debts out of Real Estate 796, 1140, 
 
 1220 
 
 c. 60.— Trustees and Mortgagees Act, 583, 708, 1120, 
 
 1121, 1221 
 c. 65.— As to Lunatics and Persons under Dis- 
 ability 7,996, 1124 
 
 1 & 2 Will. IV., c. 56.— Bankruptcy .... 317, 847 
 c. 58. — Interpleader . . . . . . 179 
 
 2 & 3 Will. IV., c. 71. — Prescription Act . . . 356, 405 
 I! c. 80. — As to Identifying Lands of Ecclesias- 
 tical Corporations . . . 334 
 
 . c. 100. — Limitation of Suits for Tithe 354, 405, 555 
 
 . c. 110. — (Local and Personal) Establishing a 
 
 Metropolitan Cemetery . . 504 
 0. 115. — Roman Catholic Charities . . . 29 
 
 3 & 4 ^^ ill IV., c. 27.— Statute of Limitations, 293, 356, 376, 391, 
 
 406, 438, 732, 798, 840, 913 
 
 - t; 42. — Real Estate Assets for Creditors 400, 627, 
 
 949 
 
 c 74.— Fines and Recoveries, 7, 8, 9, 282, 285, 315, 
 
 316, 39t), 499, 518, 570, 576, 577, 580, 687, 
 688, 811, 840, 851, 857, 998, 999 
 
 e 87 — Remedying non-enrolment of Award 164, 
 
 310, 852 
 
 e. 104. -Freehold andCopvhold Estates Assets 
 
 for Debts .' . 481, 622, 1192, 1220
 
 TABLE OF STATUTES CITED. xciii 
 
 PAG R 
 
 3 & 4 Will. IV., c. lf.5.— Dower Act .... 274, 9i)7 
 c. 106. — Inheritance Act . . . 2G7, 3:JG 
 
 4 & 5 Will. IV., c. 22.— Apportiounieiit Act . . . .813 
 c. 23. — Escheat and Forleiture of Trust Pro- 
 perty . . 252, 256, 583, 588, 1120 
 
 c. 29. — Autlioriziiig Investment ou Lands iu 
 
 Ireland ...... 87 
 
 c. 30. — Exchange and Inelosure . . . . 287 
 
 c. 83. — Tithe Exemption Amendment Act . 355 
 
 5 «& 6 Will. IV., c. 54. — Marriage Law Amendment Act . . 933 
 c. 63. — Abolishing Customai-y and Loi'al Mea- 
 sures 645 
 
 c. 76. — Municipal Corporations . . . 18, 82 
 
 6 Will. IV., c. 20. — Restraining Ecclesiastical Leases . . 315 
 
 • c. 75. — Local and Personal . . . . . 762 
 
 G & 7 Will. IV., c. 32.— Benefit Building Societies , . . 699 
 
 c. 71. — Tithe (Jom mutation . . 289, 353, 354 
 
 ■ c. 86. — Parochial Registers .... 346 
 
 c. 90. — Conveyance of Land for Charity . . 3 
 
 c. 115. — General Inelosure Act . . 15,164 
 
 1 Vict., c. 22. — Amending General Parochial Ptcgister Act 287, 346 
 
 c. 26.— Wills Act . 255, 256, 263, 268, 270, 693, 841, 114ii 
 
 c 28. — Limitation of Actions and Suits . . . 379 
 
 c. 69. — Tithes Commutatidu Act . . . 334, 353 
 
 1 & 2 Vict. c. 23. — Residences of Beneficed Clergy ... 15 
 
 (-•.57. — Laud-Tax Redemption . . . . . 15 
 
 c. ()4. — Merger of Tithes in Land .... 353 
 
 c. 69. — Conveyance of Lands vested iu Heirs or 
 
 Devisees of Mortgagee .... 583 
 
 cc. 94, 106. — Certified Copies of Records, Custody 
 
 of 83, 318 
 
 c. 110.— Judgment Act, 29, 30, 54, 66, 80, 317, 454, 455, 
 
 456, 459, 462, 463, 465, 466, 468, 469, 470, 
 473, 474, 476, 482, 483, 487, 488, 847, 850, 
 
 906, 938, 1118. 
 c. 116. — Advances from County Monies for Sup- 
 port of County iisnAs and Institutions 
 in Ireland 906 
 
 2 Vict., c. 11.— Extent on Crown Process, 252, 484, 485, 494, 495, 
 
 852, 863, 872 
 
 /Judgments, &c., 445, 446, 456, 458, 459, 462, 
 
 '>&3Victcll } 465,483,485,486,487,488,865 
 
 *' ' ) Registration Act, 494, 495, 497, 498, 594, 864, 
 
 V 850 
 
 c. 29.— Bankruptcy .... 498, 846 
 
 c. 37.— Usury 129 
 
 c. 49. — Assignment of Ecclesiastical Dis- 
 trict 15 
 
 c. 60. — Payment of Debts out of Real 
 
 'Estate 1220 
 
 c. 62.— Tithe Commutation . 289, 353 
 
 3 & 4 Vict., c. 15. — Tithe Conmnitation ..... 353 
 
 c. 31. — Inelosure Acts Exttiision . . 164, 286 
 
 c. 82. — Abolishing Arrest on Mesne Process in 
 
 Civil Actions . . . 462, 487, 850 
 c. 92.-^Non Parochial Registers' Evidence . . 347 
 
 4 & ,5 Vict., c. 21. — Statutoi-y Release Act 314 
 
 c. 35.— Tithe Commission Act . 166, 290, 334, 691 
 
 c. 3K— School Sites Act .... 3,1,5,21 
 
 c. 7. — Continuance iif certain e,\piring Acts . . 353
 
 XCIV TABLE OF STATUTES CITED. 
 
 PAGE 
 5 Vict., c. 32. — Enrolment of Proceedings in Fines and Ee- 
 
 coveries iu Wales and Cheshire . . 316, 85] 
 
 5 & 6 Vict., c. 18.— Parish Property Act 18 
 
 c. 54. — Tithe Commutation Amendment . 287, 289, 
 
 353 
 
 c. 94. — Defence Act . . . . . .15 
 
 c. 116.— Insolvent Debtors' Relief , 30,53,317,847 
 
 c. 122. — Bankruptcy Amendment . . . 847 
 
 6 <t 7 Vict., c. 23 — Copj'hold Enfranchisement . . . . 166 
 
 6 & 7 Vict., c. 54.— Limitation of Suits (Ireland) Act . . 393 
 c, 73. — Attornies and Solicitors Act . . . 723 
 
 7 & 8 Vict., c. 27. — Limitation of Actions, &c. . . • 393 
 
 c. 55. — Cojjyhokl Enfranchisement . . . . 166 
 
 c. 65.— Enrolment of Deeds in Duchy of Cornwall 313 
 
 c. 66.— Naturalization of Aliens . . 22, 23, 24, 25 
 
 c. 70. — Debtors and Creditors Arrangement Act . 30 
 
 c. 76. — Simplifying Transfer of Eeal Property . 609 
 
 c. 90. — Judgments, &c. ..... 863 
 
 c. 96.— Insolvency, Bankruptcy, &c. 53, 83, 317, 639 
 
 c. 105. — Adversepossessionagainst Duchy of Corn- 
 wall 405 
 
 c. 110. — Joint Stock Companies .... 243 
 
 Vict., c. 16. — Companies Clauses Consolidation Act . 183, 235 
 & 9 Vict., c. 18. — Lands Clauses Consolidation Act 7, 14, 280, 
 
 442, 504, 547, 563, 623, 625, 663, 917 
 
 ■ c. 20. — Eailway Clauses Consolidation 68,116,206, 
 
 210, 5.33 
 
 ■ c. 106. — Law of Real Property Amendment 3, 5, 198, 
 
 240, 243, 528, 530, 544, 562, 563, 580, 609, 
 
 691, 815, 889 
 
 c. 112.— Satisfied Terms Act 271, 289, 324, 506, 514 
 
 c. 113.— Evidence 310, 317 
 
 c. 118. — Inclosure and Improvement. . 15, 33, 116, 
 
 164, 287 
 
 c. 119. — Conveyance of Real Property (short forms) 
 
 Act 504, 727 
 
 — ^ c. 124. — Statutory Conveyances . . . . 505 
 
 9 & 10 Vict., c. 70. — Commons Inclosure . . . . 15,287 
 
 c. 73. — Tithe Commutation Amendment. . . 353 
 
 c. 7S.— Merger of Tithes 295 
 
 c. 95.— County Courts Act . . . 407, 1016 
 
 c. 101. — Land Drainage and Improvement . . 15 
 
 10 Vict., c. 17.— "Waterworks Clauses Act, 1847" . 68, 116, 206 
 
 10 & 11 Vict., c. 38. — Laud Drainage Act .... 15 
 
 c. 83. — Naturalization in Colonies . . . 24 
 
 c. 96.— Trustees Relief Act . . . .661 
 
 c. 104. — Tithe Commutation . .... 353 
 
 c. 111. — Commons luclosiu-e and Improvement 15, 
 
 287 
 
 11 & 12 Vict., c. 48. — Irish Incumbered Estates Act . . 483 
 
 c. 63.— Public Health Act . , ... 21 
 
 c. 70. — EAndtnce as to levying Fines with Pro- 
 clamations .... 316, 851 
 
 c. 87. — Payment of Debts out of Real Estate 1220 
 
 c. 99.— Commons Inclosure and Improvement 15, 
 
 288 
 c. 112. — Metropolitan Sewers . . . . 371 
 
 12 & 13 Vict., c. 26.— Defects in Lea.ses 886 
 
 49. — School Sites .... 3, 15, 21 
 c. 74. — For further Relief of Trustees . . 661 
 
 c.
 
 TABLE OF STATUTES CITED. XCV 
 
 PAGE 
 
 12 & 13 Vict., c. 83.— Commons Inclosure aurl Improvement 15, 
 
 287 
 
 c. 95. — Irish Judgments Act . ... 473 
 
 c. 100. — Facilitating Drainage . . . .15 
 
 Q 106 — " Bankrupt Law Consolidation Act 
 
 1849," 29, 53, 83, 162, 237, 254, 317, 460, 
 498, 51.3, 661, 699, 776, 795, 811, 845, 
 848, 938, 995, 1003 
 109. — Chancery Enrolment . . . .315 
 21 s 7. — Acts to be deemed Public Acts, 295, 
 ' 377, 427 
 
 31. — Land Drainage Act . . . . 15 
 35. — Act to Diminish Delay in Chancery, 210, 496, 
 863, 1017, 1018, 1020 
 43. — Palatinate Chancery Act . .466,487 
 60.— "Trustee Act, 1850" 256, 583, 1120, 1121, 
 
 1221 
 79. — Turnpike Acts Continuance Acts, 1850 288 
 33. — Eailway Abandonment &c. , Act 210, 726, 1052 
 97. — Stamp Duties Act, 525, 527, 554, 695, 698, 
 
 700, 701, 703, 704 
 24.— School Sites Act . . . . Ji, 21 
 ,53. — Inclosure Consolidation Act . . 287, 353 
 94. — High Peak Mining Customs, &c. . 118 
 
 97.^ — Church Buildings Act Ameadmeut . 346 
 99. — Law of Evidence Amendment 232, 311, 316, 
 318, 319, .347, 410, 414, 967 
 104.— Episcopal and Capitular Estates Act . 17 
 49. — School Sites Acts Extension . . 3 
 
 51. — "Copyhold Enfranchisement Act, 1852" 116, 
 166, 290, 318, 334, 414, 1075 
 
 c 55 —Trustee Act Extension, 1852 . 58.3, 585, 
 
 688, 702, 1221 
 
 c. 62. — Woods and Forests. &c.. Act . . 315 
 
 c. 79.— Inclosure Act, 1852 . . 1.5,287,288 
 
 ~_ c. 80. — Master in Chancery Abolition Act 2(W, 672, 
 
 109."), 1206 
 
 c. 86. — Chancery Improvement Act . 318, 319, 414, 
 
 490, 1006, 1010, 1011, 1019,1022,1189,1191, 
 
 1192, 1197 
 16 & 17 Vict., c. 51.— Succession Duty Act . 275,557,592,852 
 
 c. 56. — Crown Lands Management . . 681 
 
 c. 57. — Copyhold Acts Amendment . 166, 318 
 
 c. 59.— Stamp Duties Act, 1853 . 526, 696, 701 
 
 c. 63,— Stamp Duties 698 
 
 c. 70. — " Lunacy Regulation Act, 1853 " 7, 8, 76, 82, 
 
 253, 570, 584, 589, 1120, 1121, 1224 
 
 . . c. 74. — Land Tax Redemption . . .15 
 
 c. 1 13-— Irish C!ouiuinii Law Procedure Act 399, 489 
 
 c. 117. — Land Tax Redemption Amendment 352, 938 
 
 p 134 — Metropolitan Burial Act . . 21,346 
 
 c. 137.— Charitable Trusts Act . .3, 17, 20, 288, 1224 
 
 17 & 18 Vict., c. 14. — For building New Churches . . 3 
 
 c. 36. — Bills of Sale Registration Act . 537,567 
 
 c. 75.- — Acknowledgement by Mai-ried Women 574 
 
 c. 82. — Palatinate Chancery Imi)rovement Act 1221 
 
 c. 83. — Stamp Duties Amendment . 694, 696, 697, 
 
 698, 700 
 
 c. 90.— Usury Laws Repeal Act . 5, 25, 498, 627 
 
 c. 97.— Inclosure Act, 1854 . 15, 131, 164, 287 
 
 13 & 14 Vict., 
 13 & 14 Vict., 
 
 C. J 
 
 c. 
 
 c. 
 
 
 
 
 
 
 
 
 
 
 
 14 & 15 Vict. 
 
 , c. 
 
 
 
 
 c 
 
 
 
 
 
 15 & 16 Vict. 
 
 - c.
 
 XCvi TAliLE OF STATUTES CITED. 
 
 PAGE 
 
 17 & IS Vict. c. 104.—" Merchant Shipping Act" . . 854, 930 
 
 c. 112. — Literary i^nil Scientitic Institutions Act 3, G87 
 
 c. 113.-Locke Kiug'.s Act . 264, 471, 732, 816, 818 
 
 c. 116. — Episcopal and Capitular Estates Man- 
 agement Act . . . . .18 
 
 c. 119. — "Bankruptcy Amendment Act, 1854" 846 
 
 c. 125.— "Common Law Procedure Act, 1854" 223, 
 
 312, 414, 695, 967, 976, 980, 986 
 
 18 & 19 Vict.,c. 15.— Judgments Kegistration Act 429, 454, 455, 
 
 456, 483, 4«6, 4«7, 4S8, 499, 733, 850, 853 
 
 c. 42. — Administration of Oaths Abroad . 319,576 
 
 c. 43. — Infant's Settlement Act . . .2 
 
 c. 63. — Friendly Societies LawAmendnient Act 699 
 
 c. 117. — Defence" Act 15 
 
 ■ c. 12(1 — Metropolis Local Management Act, 1855 371 
 
 c. 124.— Conveyance for Charity 3, 17, 20, 288, 1224 
 
 c. 128.— Burial Boards ....". 21 
 
 19 & 20 Vict., c. 9. — Drainage Advances Acts Amendment 15, 
 
 455 
 
 c. 47. — Joint Stock Companies Act, 1856 235, 563 
 
 c. 55. — Ecclesiastical Commission ... 3 
 
 C.74. — Episcopal and Capitular Estates . . 18 
 
 c. 80. — Land Tax Redemption .... 352 
 
 c. 95. — Oxford College Estates . . . . IS 
 
 c 97.— Mercantile Law Amendment 104,378, 399,966 
 
 c. 108. — Couutv Courts Acts Amendment . 572 
 
 c. 120.— Settled Estates Act 7, 15, 69, 70, 1171, 1223 
 
 20 & 21 Vict. c. 13. — WoT'khouse Sites Act .... 18 
 
 c. 3L — Inclosure Acts Amendment . . 15,287 
 
 c. 35. — Metropolitan Burial Act Amendment . 21 
 
 c! 57.— Malins' Act 580, 691 
 
 c. 77.— Probate Act . . . 320,321,407 
 
 c. 81. — Burial Acts Amendment ... 21 
 
 e' 85.— Divorce Act ... . 10, 28, 467 
 
 91 & 92 Vict c. 27.— Cairns' Act . 105, 770, 982, 984, 994, 1100, 
 
 1122 
 
 c. 44. — Universities Estates Act . . .18 
 
 c. 57. — Ecclesiastical Corporations Leasing . 18 
 
 Q 77 — Settled Estates Act Amendment . 15,70, 
 
 1171,1172,1173,1182 
 
 c. 92. — Conveyance of County Property . . 21 
 
 c. 93. — Legitimacy Declaration Aet . . 24,339 
 
 c. 94. — Copyhold Acts Amendment 166, 290, 1075 
 
 c. 11)8. — Divorce Acts Amendment . . . 10,28 
 
 99 & «3 Vict c 21, s. 25. — Re-entry by Crown on Lands of 
 
 ~~ "■ •' • ' ^^ijgj^ 22 
 
 c. 35. — Lord St. Leonards' Act (Law of Pro- 
 perty Amendment) . 53, 87, 97, 131, 170, 
 302, 483, 494, 559, 595, 615, 814, 
 815, 840, 1010 
 
 c. 43. — Inclo.-ure Acts Amendment . . 15, 287 
 
 c. 4(5. — E]nscoi)al and Capitular Estates . . 18 
 
 c 61 — Divorce Court Act (as to Settlements) . 760 
 
 23 Vict., c. 15.— Stamp Duties . . • • ... 237 
 
 c_ 16. Moi-tgnges, &c., by Municipal Corporations . 82 
 
 93 S: 94 Vict c 3s— Law of Property Further Amendment . 98, 
 "' ^ ■' ■ 395, 454, 464. 467, 484, 485, 486, 487, 
 
 815, 850 
 
 ^ c 53 — Duchy of Cornwall (Lindtation of Suits) 
 
 Act 405
 
 TATILK or STATUTES riTED. vu 
 
 23 v't 2-1 Vict., c. .'f).— TT)ii\'ersities Estates Act . . . is 
 
 <•• <;i.— Loc!.l Eoavd of Jfoaltli, .'<(•. , . " .* :^i 
 
 '■• "^l- — _( ^opylioM and lufilosurc ( 'oiiinil.^isinus . ?.:,:] 
 *• •>'-j. — I'ithe (--'oiiimutatiou .... ;jo:j 
 
 «'• 10(5. — L. C. C. Act AmoadiiiGiii , , . , 7!) 
 
 ■ c. l\2. — Defence Act . . . , '. . :3, lA 
 
 <■- lir*.— Crowa Debts Satisfaction 480, Ui,j, 4i')0, T)});". 
 
 (-.124. — Episcopal and Capitulai' Estates . . ' is 
 
 (-.12."). — Metropolis Gas Act, ]8()() . . .' 7^ 
 
 c. ;i2(i. — Common Law Pi'ocediu'o . . ! To 
 
 '— '■• l-'S. — Chancery Evidence Comniis.slon Act ' 414, 
 
 !J()7 
 
 c. J-'3(;.—Kndo\ved Charities Administration . 3,288, 
 
 1224 
 
 c- l-i-J- — Eord CVanwortli's (Trustees and Mnrt- 
 
 „. „ , ,.. gages) Act . 5,5, (!(;, G7, 73, 74, 50.1 no.O 
 
 24 . I 25 Vict., c. O.-CharitaMeUses . . . . ;>, fis6 
 
 ■ c. 10.— Admiralty Court Act, 18G1 . . .'4(37 
 
 0. i')2.—CvQ\yu Suits Limitation Act . ". 405 
 
 c. 02.- Probate (Stamp Duties) Act . . . 27's 
 
 c. lOL — Statute Law Revision Act, 18()1 . ' ' "21 
 
 f' 131.— Episcopal and Ca])itidar Estate.s . '. 18 
 
 ■ 0, 133.— Land Drainage Act, 1801 . . . 45;-^ 
 
 ' t- 134.— Bankruptcy Act, 1861 29, 54, 162, 234, 317 
 
 40O, 4(17, 4S2, 408, 587, (m, (J89, 609, 776, 
 
 705 095 
 
 25 Sc 26 Vict., e. 17.— Enrolment of Conveyances to Ch.arities ' 086 
 c. 42.— " Chancery Regulation Act, 1802" 
 
 (Roll's Act) IIOO 
 
 e. .53.— Land Registry Act, 1802 . . 306,081, 
 
 8.j5, 030, 1142 
 
 c. G( .— " Declaration of Title Act, 1862 " 1142, 1143, 
 
 1140 
 
 c. 73.— Copyhold, &c., Commission Act . . 3.-,:i 
 
 c. 86. — Lunacy Regulation Act, 1802 . ..78 
 
 c. 80.— "The Companies Act, ]n(;2" 21, 412, 414, 
 
 407 
 c- 108.— Confirmation 01 Sales Act 68, noo, 1172, 
 
 118:3 
 
 (^- 112.— CharityCommissioners Jurisdiction Act, 
 
 288, 1224 
 
 26 & 27 Vict, c. 43.— Post Office Lands Act, 1863 . . 852 
 «•• 40.— Duchy of Coinwall ]Management Act, 
 
 1^^G3 r,H7 
 
 27 \ict., c. 13. — Enrolment of Charitable Assurances . . 080 
 
 27 <t 28 Vict., c. 10.— "Companies Seals Act, 1804 '' . . '. |;ji 
 c. 45.— Settled Estates Act— luirther Amend- 
 
 >ueiit . . . 1171, 1172, 1173, 1218 
 
 c. 112.— Judgments, Sec, l/.i\v Amendment Act, 
 
 1804 404, 405, 468, 475, 470, 478, 470, 48.''>. 
 405, .JIO, 730, 8.-)l, 1 180, 1194 
 
 c. 114.— Improvement of Land Act, 1804 15, 88, 4.j.j, 
 
 400 
 
 28 & 29 Vict., c. 78.—" INfortgage Debenture Act, 1865 "' 455, 400 
 — c. 09.— County Courts JMiiiitable .lurisdiction 001, 
 
 771, 1012, 101.-), 1017 
 
 c. 104.— Crown Suits, Sec, Act. 1805 . 278, 45'), 401 
 
 20 (t 30 Vict, c. 57. — Cliaritable Trust Deeds Enrolment . ' 680 
 
 ■ e. 90.— Rills of Sales Act, 1800 . , . ' 5n7 
 
 30 & 31 Vict, c. 47. — Lis Pendens . . . . 100,407 80.} 
 
 yor.. I. 
 
 'J
 
 xcviii TABLE OF STATUTES CITED, 
 
 r.vcR 
 no & 31 Vict., c. 48.—'- Sale of Laml by Auction Act, 1867 " 81, 112, 
 
 113, 125, 194, 195, 1202, 1206 
 
 c. {)'■). — Locke King's Act — Amendment . 264, 732, 
 
 816, 820, 1011 
 
 c. 127.—" Eailway Companies Act, 1867 " 442, 433 
 
 473, 625, 978, 979 
 
 c. 131.— "Companies Act, 1867" . . 235,243 
 
 c. 133. — Consecration of Churchyards Act, 1867 3, 15 
 
 ■ c. 142.— County Courts Acts, Amendment 613, 661, 
 
 1015, 1016, 1017 
 31 Vict., c. 4.— Sale of Eever.sionary luterestri 171, 586, 755, 1081 
 
 31 & 32 Vict., c. 40.—" Partition Act, ISCS" . 2, 1185, d scq. 
 
 . c. 44.— Eeligious, &c.. Buildings Site Act, 1868 687 
 
 c. 54.— "Judgments Extension Act 1868" . 489 
 
 -c. 89. —Tithe Commutation .... 287 
 
 32 & 33 Vict, c. 18. — "Land Clauses Consolidation Act 1869 " 721 
 
 c. 17. — Licensing Act .... 13,29, 
 
 c. 71.—" Baukruptcv Act, 1869 " . 54, 67, 84, 162, 
 
 237, 2.54, 255, 273, 317, 460, 483, 498, 513, 
 
 .567, 588, 661, 689, 699, 723, 777, 795, 811, 
 
 84.5, 910, 939, 99.5, 1003 
 
 c. 94. — Church Building .... 661 
 
 c. 100.— Sanitan' Loans Act, 1869 . . . 1224 
 
 c. 110.—" Charitable Trusts Act, 1869 "' . . 288 
 
 114.— "Abandonment of Railways Act, 1869" 762 
 
 33 Vict., c. 14.— "Xattu-alization Act, 1870 " . . 22, 23, 24 
 
 33 & 34 Vict., c. 23. — Abolition of Forfeiture Act . 13, 29 
 
 c. 28. — " Attorneys and Solicitors Act, 1870 " 240, 
 
 242, 728 
 
 . J. 34. — Investment of Trust Funds on real 
 
 securities 17, 87 
 
 c. 35. — " Apportionment Act, 1^70" . . 813 
 
 o. 44. — Stamp Duty on Leases . . . 700 
 
 c. 56. — " Limited Owners Eesidences Act, 1870" 15, 
 
 455 
 
 c. 93. — " Married Women' •< Pi'opcrty Act" 526, 572, 
 
 1002, 1004 
 
 c. 97.—" Stamp Act, 1870" 237, 526, 527, 554, 694, 
 
 695, 696, 697, 698, 700, 701, 702, 703, 706 
 
 c. 102.—" Naturalization Oath Act, 1870" . 23 
 
 ;>4 Vict., c. 14. — Vesting County Property in Clerk of Peace . 21 
 
 34 & 35 Vict. c. 84. — Limited Owners Eesidences Act Amend- 
 
 ment Act . . . . .15 
 c. 110. — Merchant Shipping Act, 1871 . . 885 
 
 35 & 36 Vict c 24. — " Charitable Trustees Incorporation 
 
 Act, 1872" .... 17,686 
 
 - c. 79.— "Public Health Act, 1872" . . 21 
 
 c. 81. — " Attorney and Solicitors Act Amend- 
 ment'' ..... 728 
 c. 94.— "Licensing Act, 1872" . ... 419 
 
 36 & 37 Vict , c 50. — " Places of "Worship Sites Act, 1873 " 3, 15 
 : c. 66.—" Judiciiture Act, 1873 " 193. 380, 771, 974, 
 
 977, 101.5, 1017, 1093, 1101 
 
 37 & 38 Vict , c. 50.—'- Married Women's Property Act, 1870 
 
 Amendment Act, 1874" . 11,12,15 
 
 c. 57.—"' Eeal Property Limitation Act, 1874" 356, 
 
 405, 629, 973 
 . c. 62.—" Infants Eelief Act, 1874 " . . 5
 
 TA]3LE OF STATUTES CITED. XCIX 
 
 rAGH 
 
 37 & 3.^ Vict, c. 78.—" Vendor <ind Purchaser Act, 1874" 10, 15, 
 
 74, 89, 95, 143, 144, 145, 146, 148, 168, 
 176, 206, 284, 291, 293, 295, 327, 351, 
 407, 503, 511, 512, 517, 519, 556, 572, 
 591, 676, 677, 682, 683, 693, 708, 731, 
 857, 1132, 116'2 
 c. 89.— "Sauitary La^\' Ainemlraent Act, 1874," 21, 52 
 
 38 & 39 \'ict., c. 87. — "Laud Transfer Act, 1875" . 1151 ef sai.
 
 ADDENDA AND ERRATA. 
 
 V , r,, II. ( i /). ^'jo JiWi ^ V. Ih-fuvh', L. li. in ('. r. rii3. - 
 
 r. 1l>j 11, (//)i — Anil i JuG and oonddm' Jn ve Jl i h^'unj, L. 11. 20 E i j. IGG . -^ 
 
 . ■! ' ■ (Ja, II. ( i ). Oil, luu. Hm)! ! ' i. IMnUiliiH. ' }, L. P. li Fnli, 1 T^ 
 
 j^ "f. 1 ! i ': ir i "n' i ]n"" i i i i " n;' n ni '-'n r r "n vi r f t i""^ ' 
 
 « T i l ll^j tliiiil meUgiual jiuLl. — riii " [iuilIkuui i )" rpiinl '' rui i dni :." 
 
 i.\ IOC, 11. (i). — I'll, Ijuu, iriiiii' \. /u' l i ' ^i'n'ij n Ji , L. Hi »' Ekuli. 17u, 170 . 
 
 P. 160, 11. (/(.) And see Povell v. Po(/;,i;, L. 11. 19 Eq. 422, ^Yllel•e the sale, 
 though under the direction of the Court, was invalid by reason oi 
 its liaviug been made before the filing and approval of the certifi- 
 cate iu antswer to the preliminary inquiries. 
 
 P , KiiS Uo(1ffl-ui: ijf V. ^Vujf i' , novr reported in L. it. ID Eg. 301. 
 
 ^160) U i (iH . A ! , lu uli.i r ii i t uiii.il cut'LiU lll^ lU il milling lua.st^y- ;^«<j — 
 
 - P. 201), 11. (^ i ), and p. iiV^, n , (if) , Pi i l, i .uu jl iii ^ i i^' u Bull, L. IL in Q. U , 
 
 - I'. ^10, 11. (u). And L'cu rVi I ' l i i ji i )) ■!' V. '/i ii ij[ij. Ill Q. 1). ■ mHQ . 
 
 r^' i •?IS | a , (i/) lViiiI .m >,''MiiiJi//^^ [. ;^'(ji ' i', L. li. 2o r.i|. 11 , but .-ct t- 
 
 /.Wr V Iffffirlnn ■ lllu,' ff T I I 1 1 n n; ij II I . I.' Un'lV,^ I I •; .,.,,1 
 
 J ? *. iillll) i i i i (, i j') i i rpii '( J/ ii iyH iii j i i i i T | T , rujii, G3 Peav.)"' I'Lad ' ' /fi^/tcuu i ? v. 
 
 Lujli'j ■•?") Pi9MVi" 
 
 Jl .Tl- l.-nn 1" TP.-,,. t-,\. r..-^».|.l '' ..,...,1 (■ ..-.., ||| | | | 
 
 P i 27^j H i (h i \ lul vi'p — L f J/ i ( I'l'/mii / u i JoiHiilU.it'jllCl ' ii pf Iidaiu f 
 
 J^rt'tfi!-, '' '' T' '' '' '^^■* — 
 P^ 9s-^, liiiP .-> — Euli " cu.il,^' lual ■' Luvi'llcinl." ' 
 
 •, " i r ^'"■'^- '' ■'•' '■ -n V I ;i ' ■■' ] ' I ' L yiTp " 
 ^ ;?■"'! >i ^ (If hjiiKl ' .fi V. ^ I '/uwi', afliimLLl uii .ippiMl, !.. 1>. 10 I ' li. Ap 
 
 P. 364, 11. {>'). As to the diversion of water by a waterworks company 
 only entitling a riparian owner lower down the stream to conipcn- 
 Bation, and not to call on the company to buy his jiortion of tin- 
 stream, see Bmh v. Troiohriihir. ]\'(/t<:nrorh Co/ztpani/ \j. li. Ki 
 Ch. Ap. 4.j9. 
 
 J J i nni ii » i (i i f) . jf ?i(u I. /M/j/;/, rii|iijrii' i l n i i , ' i|i| i i. i 1, Ij. 11 . 4 n |]j(Lh. "D : 
 
 V i if i 'O, n ( i i ) mi II I i i j i ' I I I ' li ' ii ' iiii , I P 1'^ ( ''■ ^ p -'" I 
 
 ■jVuiI m\. r/iii 
 
 ii \. 'fi 
 
 I J. i l . |M 1) . IV ; ^iii. 
 
 V Vn l U iii'i PuiittjU i i 11 V. /; , !, ' i f i i .'Ml.iiI " J/uL i i '' ' ii ' i ' '• , T il II II I' 7i' /. 
 
 rib *. IrfO , i jonjH I nuu i g ii nal nutu. i'lai " pn..j,unipllUll,"ii ' ad ' pi er
 
 Cll 
 
 ADDENDA AND F.rtHATA. 
 
 P. 422. See now the Judicatuvo Act, 1S7:5, 30 & 37 Tiot, c. 66, s. 5, 
 subsect. 7 which assimilatos the rules of Law and Eqiiity as to time 
 heing essential, and riil' infrn, p. 97-L 
 
 "P iliV''. ni (v]- — PhilUji!^ \ > .^fiHi), iLniAid uii apiiu i l, L. II. 11) C. r. 
 
 r \--\ II ( ; F ill i' r T i \" I m " i " I ' l '" 
 
 iV- t>():), n..(q). — Tlic Doventh nootion of tho V . and P. Act , I871j i'? n<w <r 
 X£^iiiid iA by occt. 1.29 of :)H ^Fc m Via, l. M 7. 
 
 > l . .iriiLulfuiiLi. — 8uu .secjt. 4N of o.s c'^ :;i) A"i(L-t. <--. g 7. 
 p. ')?A\ n, (if), — And oompai^t jVi;/ v. ih ' hy, L. l;. lU ' ij. E. 06^. 
 r. jI'J, u. (ij)- — j?Ti uv K.ItlU, in vtliitli tauu Ji'" ' hnu^ ^ i. Cufh -f m -tmi was 
 
 P. :i7'i) itr(<n, — 1\ nf,l -nil ri- ,1/ ''V^ Tii' iii¥, T " 1 T' rr-^T^r- 
 J»r*75rin7rr — T|i |i I I - Ill 1 ^ 1 |- fr"| T , P 1"F I '^l'- 
 
 ,Pi''\- (') Anil '' I I i" i ffj V 111^' r riHi^ 
 
 ? fifj-tj 11 (■■}- — AiidiJiju I ni'tUini Hi>'Y'it"!,fi P 19 F(i 4:^ 
 
 P, iy^, n- ^ i Fnr " •'" ■^- ^ ^'" ' ' ' 1 -" ' ^^ ' ' "^ " •^•'' ^- "" ' ^^^^^ -^"-^- 
 
 see^r-tfi." 
 T" t*^-^ --— ] Tirirnin-i1 n--t" i "'''-— '•'";^^p"--^ — ' , " ' ^^ j [ '' " "^ 
 
 ^ P. 7i}0, «■ (lOi li'oia, l io-nrmroi> /iV- j i irififii^ r'minr ii nrT n/ ''V B( t <Mhnhu t ci ^. \ 
 
 Ho:^:t'l. Ill P. "]" y [ I 'I'T",, i i I " ' 'VTi •iprnrt i ir""'' 
 
 X ^'3-'. lint^ ^•^ '•^1 1 1 ^ 1^ ^ '' "" TTT /' i rm i l " 1 I '^' i r i TT[ '' 
 r. rcyi i . (mi) i'n l Y i frr i mi r " i fj T P 11 Pfj •"^"' 
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 "rriiii'ii" I'Trrii "
 
 -^yXys^A^^^^^ 
 
 A TREATISE, 
 
 &;c. 
 
 CHAPTER I. Chapter I. 
 
 AS TO RESTEICTIONS ON THE GENERAL CAPACITY TO BUY OR 
 SELL REAL ESTATE. 
 
 1. Who arc (jeneralbj-\ . 
 
 c^ -iTTi 7 J- 7 [viicomvetcnt to sell. 
 
 2. n 110 are reiativeiy) ^ 
 
 3. Who are generally 1 . , 
 
 , ,,,, , ,. , >inc07npcfent to pitrc/tase. 
 
 4. W/io are velatively) 
 
 X HE questions who may sell, and who may buy, real estate, 
 may be conveniently discussed, by assuming the existence 
 of a general capacity to enter into the relation of vendor or 
 purchaser ; and by then treating of the exceptions from the 
 general rule. 
 
 Incapacities to sell or buy may be considered as Ijcing of lucapaciti-js 
 two descriptions : 1st, such as depend on some circumstance are 
 personal to the proposed vendor or purchaser, and affecting 
 his general capacity to buy or sell any real estate whatso- goueral 
 ever; and, 2ndly, such as depend on the relation in which or relative. 
 he stands to the particular property about to be sold or 
 bought ; or to the party with whom he intends to deal. 
 
 (1.) Who are generally incompetent to sell. Section l. 
 
 A proposed vendor, althon^h haviiiu' a uood title to, and "Who are 
 
 ^ '- ° o o ^ ' fronerally 
 
 being the absolute oAvner of property, and standing in no incwnputeut 
 
 to seU. 
 
 VOL. I. B
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 1. 
 
 Tiifants, 
 
 fiduciary relation towards the proposed purchaser, may yet 
 be under some personal incapacity, which may prevent a 
 sale ; that is to say, he may be, 1st, An infant ; if so, he can, 
 as a general rule, execute no conveyance Avliich will Ijind, 
 either himself when he comes of age, or his heirs in the event 
 of his dying, either under age, or of full age, but without 
 having confirmed the transaction : — supposing it to be capable 
 of confirmation (a). 
 
 Estates of, 
 cannot 
 generally 
 be sold by 
 Court. 
 
 Nor has a Court of Ecpiity any authority to sell the real 
 estate of an infant, under the mere notion that a sale Avill be 
 l)eneficial (h). In some cases, however, where an infant has 
 been entitled to an undivided share of realty of small value, 
 the shares in which have been minute or numerous, a sale 
 instead of a partition has been decreed, as being more advan- 
 tageous to the infant ; but, in order to create the jurisdiction, 
 the infant's costs already incurred in the suit have been first 
 declared to be a charge on his share (c) : and under a recent 
 statute (fZ), the Court has power to order a sale, instead of a 
 partition, notwithstanding the disability of any of the paities. 
 
 May convey And, b}^ statutc, in particular cases, infants holding land in 
 
 under special 
 
 statutes. trust, or subject to the debts of their ancestor or testator, are 
 
 enabled to convey, under the authority of the Court of 
 Chancery (e) ; so, too, by the Infants' Settlement Act (/), an 
 
 [(i) 4 Bac. Abr. 300, ct scq. Any 
 deed wbich takes effect by deliver}', 
 is, if executed by an infant, voidable 
 only ; but letters of attorney, and 
 deeds which delegate a mere power, 
 and convey no interest, are absolutely 
 void. Zouch V. Pa7'sons, 3 Burr. 
 1794; Anon v. Ilandcock, 17 Ves. 
 383 ; Allen v. Allen, 2 Dru. & W. 
 307. 
 
 {b) Calvert v. Godfrey, 9 Beav. 97 ; 
 and see Broolfickl v. Braelleij, Jac. 
 631 ; Wood\. Patteson, 10 Beav. 541 ; 
 Field V. Moore, 19 Beav. 176 ; 7 De G. 
 M. & G. 691. As to sale under speci;il 
 circumstances, see Garmstone v. Gaunt, 
 
 1 Coll. 577 ; infnt, Ch. XXL s. 1. 
 As to mortgage of an infant's estate 
 under special circumstances, see Frith 
 V. Cameron, L. E. 12 Eq. 169 ; but 
 see Ilihhert v. Cool;, 1 S. & S. 552. 
 As to the power of the Court to order 
 a sale of an infant's reversionary in- 
 terest in personal estate, see Nunn v. 
 Hancocl; L. U. 6 Ch. Ap. 850. 
 
 ((■) Thaclccray v. PctrJcer, 1 N. E. 
 5G7 ; Davis v. Turvey, 32 Beav. 554 ; 
 JIabbard v. Hubbard, 2 H. & M. 38. 
 
 {d) 31 & 32 Vict. c. 40. 
 
 (c) Vide infrd, Chs. XIII. and 
 XXL 
 
 (/) IS & 19 Vict. c. 43,
 
 TO BUY OR SELL REAL ESTATE. J 
 
 infant may, witli the sanction of the ( \jurt, make a valid and Chap. I. 
 
 binding settlement of his or her real or personal estate in '^^^' ^' 
 
 contemplation of marriage ; and, in various special cases, 
 infants, or their guardians, are enabled, by statute, to sell 
 and convey land for purposes connected with religion (r/), 
 charity (h), instruction (i), literature, science, and the tine 
 arts (k), or Avorks of a puV)lic nature (/). 
 
 So, an infant can convey under a power simply col- ^^ay exercise 
 lateral (m) ; but he cannot be empowered, at least as against powers.' 
 himself, to contract for the sale of land, or to do any other 
 act which requires an exercise of discretion : and if he enter 
 into a contract for the sale of lands, he cannot, durino- in- 
 fancy, enforce it ; as otherwise there Avould be no nuituality 
 of remedy (n). 
 
 But, by the custom of gavelkind, an heir at the age of And may 
 liftecn, may, for valuable consideration, sell, and convey for custom of 
 an estate in possession, lands which he took by descent ; the S-'^^'^-'^^^ii'^^- 
 conveyance being by feoftment, and livery of seisin being 
 delivered by him in person (o). 
 
 An infant, however, has no privilege to commit a fraud (p) : Fraudulent 
 if, therefore, he were to sell and convey, asserting that he had iJlfelS 
 
 i'j) See, for a list of the Church IG Vict. c. 49; and G & 7 Will. IV. 
 
 Building Acts, the preamble to 17 & c. 90. 
 
 18 Vict. c. 14. The powers of the {k) 17 & IS Vict. c. 11 -J. 
 Church Building Commissioners are (l) See 23 & 21 Vict. c. J I -2. 
 now transferred to the Ecclesiastical (m) Sng. Pow. 177, 8th edit. 
 Commissioners, 19 <fc 20 Vict. c. 55. (n) Fli(jht v. Bollaml, 4 Buss, 298. 
 As to .sites for churchyards, see 30 & (o) 4 Bac. Abr. pp. 49, 50. Qitaur, 
 31 Vict. c. 133. As to sites for whether the custom is not more corn- 
 churches, &c., ministers' residences, prehensive 1 see Consuetudines Kan- 
 and burial places, sec 3G & 37 Vict. ciaj, 1C5 ; it extends to females, ib., 
 c. 50, under which an infant, with and is not affected by the 8 & 9 Vict, 
 the consent of his guardian, is em- c. 106, s. 3. 
 powered to convey. (p) Chambers on Infancy, 412; and 
 
 (h) See 16 & 17 Vict. c. 137, s. 27 ; see Overton v. J]<iii!stcr, 3 Ha. 503 ; 
 
 18 & 19 Vict. c. 124, s. 41 ; 23 & 24 Cnmphdl v. hnjlchu, 21 Beav. 573 ; 
 
 Vict. 0. 136 ; 24 & 25 Vict. c. 9. and at Law, Bristow v. Eastman, 1 
 
 (i) See 4 & 5 Vict. c. 38 ; 12 & 13 Esp. 172. 
 Vict. 0. 49 ; 14 & 15 Vict. c. 24 ; 15 &
 
 RESTRICTIOXS ON GENERAL CAPACITY 
 
 Chap. T. 
 Sect. 1. 
 
 against, in 
 Equity : 
 scmblc. 
 
 If there be 
 nctual mis- 
 represea- 
 tation. 
 
 attained liis majority, the purchaser, it is conceived, would, if 
 he had acquired the legal estate, be in E(pity, entitled to its 
 protection (ry) : so, if the infant, having the legal estate, Averc 
 to proceed at Law to recover the property, E(]uity would 
 restrain the action, except upon the terms of his refunding 
 the purchase-money ; for instance, where an infant received a 
 premium for a lease of his lands, upon his false assertion that 
 the lessor was his guardian, Lord King decreed a return of 
 the premium with interest (r). But, in the absence of any 
 false assertion by the infant, relief in Equity "will not be 
 granted against him upon the ground that the other contrac- 
 ting party believed him to be of full age (s). The mere fact of 
 an infant entering into a transaction which must necessarily 
 be invalid unless entered into by an adult, is not such a fraud 
 as entitles the other party to relief (t). There must be some- 
 thing equivalent to actual misrepresentation on the part of 
 the infant : and where the false statement is made to a 
 person who knows it to be false, there is no fraud committed 
 which Avill take away the privilege of infanc}^ While on the 
 one hand it is a legal indulgence vrhich is not to be used by 
 the infant for the purposes of fraud, so on the other hand it is 
 not to be infringed upon by persons who, knowing of the 
 infancy, must be taken also to know the legal consequences 
 which attach to it (u). At Law, even his fraudulent represen- 
 tation that he is of full age does not render him liable to an 
 action by the party who has been thereb}^ induced to contract 
 with him (x). But in Bankruptcy, where an infant obtained 
 a loan on a representation, which he knev/ to be false, that 
 ho was of age, proof for the loan was admitted (y). 
 
 I'ruia not sell By the 53 Geo. IIL c. 141, s. 8, all contracts for the sale 
 rt'"t-dKu'^e. of any annuity or rent-charge by an infant were declared 
 
 (q) See the judgment in Hannah v. 
 Ilodson, 9 W. E. 729, 733 ; quarc, 
 whether affected by Sect. 7 of 37 & 33 
 Vict. c. 78. 
 
 (r) Esron v. Nicholas, ] De G.&, S. 11 S. 
 
 (s) Utikcman v. Dairson, 1 De Cr. & 
 S. 90. 
 
 {I) Stihman v. Dauson, 1 De (Jr. ^: 
 
 S. 90 ; Wrhjhtv. Snoicc, 2 DeG. &S. 321. 
 
 (m) Nelson v. Siocka; 4 De G. & 
 Jo. 458 ; and see Innian v. Inman, 
 L. R. 15 Eq. 260. 
 
 (:r) Juhnson v. Pijc, 1 Sid. 258 ; 
 Liverpool Association v. Fairliurst, 
 9 Exch. 422. 
 
 (,j) Re Kin J, 3 De G. & Jo. G3. 
 
 I
 
 TO BUY DR SELL HEAL ESTATE. 5 
 
 utterly void, notwithstanding any attempted confirmation Chap. L 
 
 after majority : and tlie intending purcliaser was made ' 
 
 guilty of a misdemeanor : but this Act is now repealed 
 
 Ly the 17 & 18 Vict. c. 90, and hefore the repealing Act, 
 
 the joint and several contract of an infant and an adult for 
 
 sale of an annuity to a tliird ]?arty, was valid as against the 
 
 adult (z). 
 
 By the Infants' Relief Act, 1874 (a), no action can now he Tnfants'_rtelici 
 brought " upon any ratification made after full age of any 
 promise or contract made during infpaicy, whether there shall 
 or shall not be a,ny now consideration for such ratification 
 after full age." li'tliis enactment is to be literally construed, 
 no action can now be l)rou2;-lit a^'ainst a person ^vho, havino" 
 when of full age ratified, refuses to perform, a contract made 
 ])y him during infancy for the sale or purchase of real estate ; 
 though l:)y a suit in Equity, specific performance m?^y be 
 enforced against him. The language, however, of the first 
 section seems to favour the supposition tliat the Act was only 
 intended to apply to a contract for the repayment of money 
 lent, or for the payment of the value of goods supplied to 
 an infant, and to a subsequent ratification of such a con- 
 tract ; and it ma.y be hoped that it wfill be so interpreted by 
 the Courts. 
 
 Or, 2ndly, The j)roposed vendor may be a lunatic or idiot : Lunatics, 
 m which case, accordnig to the early authorities, his convey- far void or 
 ance maybe set aside by his committee during his life, or by ^^^''^"^• 
 heirs after his death : yet he himself, thougli he recover his 
 senses, is, it has been said, unable to avoid it (6) ; at least if 
 made by feoffment, with livery of seisin delivered by him in 
 person (c) : it has, however, been held, that a Ijargain and 
 sale, lease and release, or other innocent conveyiincc by a 
 lunatic, is absolutely void (d) ; and the 8 & 9 Vict. c. IOC, 
 s. 4, which deprives a feofiinent of its tortious operation, 
 
 (:) Haw V. 0[jk, 4 Taunt. 10 ; Gil- (c) Thoaipson v. Leach, Comb. 4G3 ; 
 
 loiv V. Lillie, 1 Sc. 597. Beverley' s case, uU supra. 
 (ft) 37 & 38 Vict. e. G2, s. 2. (r/) Sag. To-.v. GOi", 8th edit, 
 
 (h) Beverley's case, 4 Rep. 123 6. 5''^i ^^^\ k ^it-w^ L.K.fOC. P..V45.
 
 HESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. L renders siicli a conveyance by a lunatic equally inoperative. 
 
 J — — But the rule against a party being allowed to stultify himself 
 
 would not prevail in Equity (e), nor, according to the modern 
 authorities, at Law (/),infavour of a purchaser who had know- 
 ingly dealt Vv'ith an incompetent vendor: anrl it is now decided 
 that the lunatic himself, as well as his representatives, 
 may establish his lunacy in order to impeach a deed which 
 he has executed (g). On the other hand, it has been held, 
 at Law, that Avhere a person, apparently of sound mind and 
 not known to be otherwise, enters into a contract which is 
 fair and bond fide, and is executed and completed, and the pro- 
 perty forming its subject-matter cannot be restored so as to put 
 the parties in statu quo, such contract cannot afterwards be set 
 aside, either by the alleged lunatic or his representatives (/i) : 
 and, in Equity, the result of the authorities seems to be, that 
 sale-transactions with a person apparently sane, though after- 
 w^ards found to be of unsound mind, will not be set aside 
 against those who have dealt with him in the hondfide belief 
 that he was of competent understanding (i). Evidence of 
 the lunatic's conduct as well before as after his signing the 
 contract is admissible, for the purpose of fixing the other con- 
 tracting party with notice of the insanity {k) ; but evidence of 
 general reputation has been held inadmissible to prove the 
 fact of lunacy, or to fix the other contracting party with 
 knowledge of it (/). 
 
 (e) Shelf, on Lun. 350. a purchase by a lunatic rescinded the 
 
 (/) Moltoii V. Camroux, 2 Exch. contract, and ordered the deposit to 
 
 487, 501 ; S. C'., in error, 4 Exch. 17, be returned (the vendor's expenses 
 
 and cases cited; Beacan\. M'Donndl, being first deducted); but this, as the 
 
 10 Exch. 18i. author is informed, was by arrange- 
 
 (y) MoUou V. Camroux, 2 Exch. ment, it being understood that the 
 
 487, 501. vendor sold with notice of the insa- 
 
 (/(,) Molton V. Camroux, supra ; nity. And as to relief against a pur- 
 
 Bcavan v. McDonnell, 9 Exch. 309. chaser on the ground of the vendor's 
 
 (i) Elliott v. Ince, 7 De G. M. & insanity, see Price v. Bcrrinr/ton, 
 
 G. 488 ; and see also Nidi v. MorJcij, supra. As to partial insanity and 
 
 9 Ves. 478 ; Williams v. Wentivorth, lucid intervals, see Sdly v. Jackson, 
 
 5 Beav. 325 ; Sdhy v. Javlson, 6 Eeav. supra ; Creayh v. Blood, 2 J. & L. 
 
 122 ; affd. 204 : Price v. Bcrrinyton, 509 ; 1 Keen, 620 ; and 2 Beav. 115. 
 
 3 Mac. & G. 486, 497, 498 ; Camphdl (I) Bcavan v. McDonnell, 10 Exch. 
 
 V. Hooper, 3 Sni. & G. 153. In Frost 184. 
 
 -', Bearan, 17 -Tur. 3G9, the Court on {I) Orccnsladc v. Dure, 20 Beav. 234.
 
 TO iu;y oh sell heal estate. 
 
 And if a lunatic levied a fine or suftered a recovery in Chap. I, 
 
 person, the conveyance was good {ni) : l)\it this rule did not '_1 
 
 aj^ply to voluntary assurances, e. g., a disentailing assurance coy^ry, 
 or power of attorney executed ])y a lunatic not ex con- 
 tractu (u) : and i\^ course, no similar eli'ect would now 
 result from his executing an assurance un<ler the 3 & 4 
 Will. IV. c. 74. 
 
 Until the statute 1 Will. IV. c. C"), sec. 27, there was no Statutory 
 
 powers of 
 
 mode of ol)taining a conveyance from a vendor who became Committees. 
 lunatic after entering into the contract. This statute was 
 superseded by the Lunacy Regulation Act (o), which contains Under Lunacy 
 ample provisions enabling the committee, under an order of ac?s. 
 the Chancellor, to convey lands in performance of the lunatic's 
 contracts (j>), and to make sale, partition, or exchange of his 
 undivided share in any land ((/), and to sell for building pur- 
 poses any land of or to which he is seised or entitled in fee 
 simple (r). It seems doubtful whether this last provision 
 will include land over which the lunatic has an absolute 
 power of appointment, or land conveyed to him to uses to 
 bar dower ; but in the latter case the dower trustee might of 
 course release his estate. By the Lands Clauses Consoli- 
 dation Act, 1845 (s), committees of lunatics are empowered 
 to sell and convey ; and by the Leases and Sales of Settled Umler Leases 
 Estates Act {t), they may, by the special direction of the Settled 
 Court, exercise the powers given by that Act for the leasing I^st'-^tes Act. 
 and sale of settled lands. Connnittees must be careful not 
 
 ()/i) See Shelf, on Lun., p. GIG, ct {q) Sect. 124. 
 
 scq. ; Murley v. Sherrcn, 8 Ad. & E. (r) Sect. 125. 
 
 75-i ; but as to the deed making the (s) 8 & 9 Vict. c. IS, s. 7. Where .i, 
 
 tenant to the praecipe, and the decla- vendor is a lunatic, and no committee 
 
 ration of uses (if any) being affected has been api)ointed, the purcha.se cau- 
 
 Ijy the lunacy, see 3 Atk. 313; l^Uiott not safely be completed without tlio 
 
 V. Ince, 7 De C M. & G. 486. intervention of a Court of Ecjuity, 
 
 (rt) Elliott V. Incc, 7 De G. M. & Midland 7?. Co. v. Osivin, 3 R. Ca., 
 
 G. 486. i^--^7 ; 1 Coll. 74. 
 
 (o) 16 & 17 Vict. c. 70 ; see too {/) 19 & 20 Vict. o. 120; and as to 
 
 25 & 26 Vict. c. 86, a. 1; and General mode of proceeding under thi.s Acb, 
 
 Orders in Lunacy of 7 Nov. 1353. see Morgan's Chancery Aci<j and Or- 
 
 {l>) Sect. 12-2. ders, p.599
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. T. to oxerciso thoir statutory powers without the consent of 
 1_1 ._ the Chancellor (v). 
 
 As to ackuow- 
 Icdgment 
 by lunatic 
 feme covert. 
 
 It is now decided that the Lord Chancellor, in directing a 
 sale of the real estate of a lunatic married woman, under the 
 Lunacy Regulation Act, 1862 (x), has no power to dispense 
 v/ith her acknowledgment of the deed, and can only vest in the 
 purchaser an equitable fee binding on hcrselfandherheir (2/). 
 
 Married Or, Srdly, The proposed vendor may be a married woman : 
 
 Estates of, in which case she may, with her husband, convey her freehold 
 how conveyed. ^^^^^^^ ^^^^^^^, ^j^^ 3 ^ ^ ^y-j^ jy ^ 74. ^^^ ^^^ ^^^^gj. con- 
 veyance by her is, a,t Common Law, absolutely void (z). And 
 where a ward of Court married without consent, and, after 
 attaining twenty-one executed, by the direction of the Court, 
 a settlement of real estate to which she was equitably entitled, 
 but did not acknov%dedge the deed, it was held that her heir 
 was not Ijound (a). 
 
 Customary 
 jjower of 
 alienation. 
 
 As to copy- 
 holds. 
 
 Before the Fines and Recoveries Abolition Act, in many 
 places a married woman had a customary power, with 
 her husband's concurrence, to dispose of land by deed 
 acknowledged before the local authorities (b), and this power 
 seems to be unaffected by the Act (c). Her copyhold 
 estates will pass by her surrender, with her husband's 
 concurrence ; or, if her interest be merely equitable, either by 
 such a surrender or by deed acknowledged imder the Act ; 
 and her legal terms for years, as well reversionary (d) as in 
 possession, will pass by the sole assignment of her husband (e) ; 
 
 (m) In re Wade, 1 H. & Tw. 202. A 
 bill cannot be filed by a next friend on 
 behalf of a person of un.sound mind, 
 not so found by inquisition for the 
 purpose of dealing with his real estate, 
 see Half hide v. liohtnson, L. E, 9 Ch. 
 373. 
 
 (x) 25 & 26 Vict. c. 86 s. 13. 
 
 {y) lie Stalks, 10 Jur. N. S. 245 ; 
 Hce also 10 & 17 Vict. c. 70, s. UG. 
 
 (z) Burton's Comp. pi. 20G ; see 
 judgment in Zouch v. Parsons, 3 Burr. 
 1805. 
 
 (a) Field v. Moore, 7 De G. IM. & G. 
 691. 
 
 (Ij) Seel Hop. H. & W. HO. 
 
 ((•) See sect. 78. 
 
 ((0 Dulerley v. Day, 16 Beav. 33, 
 
 {c) Burton's Comp. pi. 895 ; IIlll v. 
 Edmonds, 5 Dc G. & S. 003.
 
 TO BUY OR SELL REAL ESTATE. 
 thouo-h whether they will l>e bound hy hi.s contract, m the Chap. l. 
 
 Sect. 1. 
 
 event of liis death in her lifetime and before conveyance, — ' 
 
 seems to ho doubtful (/) ; and in order tliat a reversionary 
 term may pass Ijy his assignment, it must hv. such an one as 
 could possi])ly vest in possession during the coverture (//). 
 As respects her equitable terms for years, in order to perfect 
 the title, she must join in and acknowledge the assignment ; 
 for although the husband's sole assignment will bind her 
 right by survivorship (h), it will not displace her equity to 
 a settlement (/). 
 
 It is now settled that under the 77th sect, of the 3 and 4 Their power 
 
 . -iiiiT to contract 
 
 Will. IV. c. 74, a married woman, with her husba,nd s con- ^^ ^ ^-eai 
 currence, is capable of contracting in Equity, if not at Law, so ^^'''^^^• 
 as to bind her real estate, though possibly not so as to render 
 herself personally liable for breach of contract (/i). 
 
 And although the legal and equitable fee simple be vested May be re- 
 in a married Avoman, she and her husljand may, nevertheless, alienation. 
 be unal )lo effectually to assure it to a purchaser : as wlicre 
 the property is held under a will or settlement which forbids 
 alienation during covei'ture ; for such a restriction is binding, 
 although no trustee be intei-posed (l) : nor has the Court of 
 Chancery any power to dispense with it (m) : nor can trustees, 
 during coverture, safely part with a fun<l vrhich is affected 
 by such restraint (^i). 
 
 But a married woman may, in exercise of a power, pass May convey 
 
 (/) Infra, Cii. XVIII. Stcedman v. Poolc, G Ha. 193 ; see too 
 
 {[/) Duhcrlci/ V. Day, ubi suprd.. re Gasl-cU's Trusts, 11 Jur, N. S. 780, 
 
 (/() Donne v. Hart. 2 Riiss. & M. and re Ellis' Trusts, L. R. 17 Eq. 40D, 
 
 860 ; Duherlcj] v. Day, IG 15eav. 33, as to the effect of a re.straint on anti- 
 
 41. cipation wliere there is an absolute 
 
 {!) Hanson v. Keathuj, 4 Ila. 1; gift of a fund producing income. 
 
 Wortham v. Pcmherton, 1 De G. & S. {m) Robinson v. Wheel wri'jlit, 2 Jur. 
 
 644. N. S. 32, 554 ; 6 De G. M. & G. 535 ; 
 
 (Ic) Crofts V. Middkton, 8 De G. M. see, however, Sanrjer v. Sanrjer, L. R. 
 
 & G. 192, 219 ; overrulinif V.-C. W. 11 I'^q. 470, a case under thu Married 
 
 2 K. & J. 194 ; see judgment of L.-J. Women's Property Act, 1870. 
 
 K. Bruce. (*') Re GaslxU's Trusts, 11 .Jur. 
 
 (0 Barj!jcit V. Mcux, 1 Rh. G27 ; N. S. 780.
 
 10 
 
 l^KSTRICTIONS ON GENERAL CArACITY 
 
 Chap. I. 
 Sect. 1. 
 
 under power. 
 
 May dispose 
 of separate 
 
 C'.state . 
 
 either a legal estate, by limitation of an u.se, or an equitable 
 estate : and a general power of appointment authorizes an 
 appointment during coverture, unless the terms of the instru- 
 ment creating the power arc^ clearly inconsistent Avith such 
 an exercise of it (o) ; and, after considerable conflict of 
 opinion, it is now settled that in Equity a married woman, 
 not restrained from alienation, has, as an incident of her 
 separate estate and without any express power, as complete 
 a power of disposing of her equitable fee as if she were a 
 feme sole ('p) ; but of course a married woman will not be 
 regarded as a feme sole in respect of the fee simple, unless it 
 is clear that the fee simple, and not merely the life estate, is 
 limited to her separate use (q). 
 
 Or when When a wife has obtained a sentence of judicial separation 
 
 sepiratcd. fi"<'ii^ l^«i' husband, she is, as from the date of the sentence, 
 
 and during the continuance of the separation, to be considered 
 
 as a feme sole in respect of property of every description 
 
 which she may acquire, or which may come to or devolve 
 
 upon her ; and, if cohabitation is resumed, all property to 
 
 ; ^ which she is then entitled is to be held to her separate use, 
 
 subject only to any written agreement which she may have 
 
 entered into with lier husband, whilst living separate. If she 
 
 \\ dies intestate, her property devolves as if her husband were 
 
 dead (r). A protection order, during its continuance, has 
 
 the same efiect, in respect to the wife's power over property 
 
 acquired l:)y her since the desertion, as a decree of judicial 
 
 separation (s). 
 
 Or under the By the Vendor and Purchaser Act, 187-1' (/), when any 
 
 (o) Gould V. Gould, 2 Jur. N.S. 484. 
 
 (p) Taylor v. Meads, 11 Jur. N.S. 
 166; in which case Lord We.stbury 
 reviewed the earlier decisions and 
 overruled BucMl v. Bhiikhorn, 5 Ha. 
 1-31, and Lechmcre v. Brotheridrje, 32 
 Beav. .353 ; see too Hall v. Water- 
 liouse, 11 Jur. N. S. 361 ; and Grifflij 
 V. Cox, 1 Ves. s. 518 ; Sug. Pow. 217, 
 Sth edit. ; Pride v. BidA L. 11. 7 Ch. 
 
 A p. 64 ; Lewin on Trusts, 5th edit 
 553. So also it has been decided in 
 Ireland, Adams v. Gamhlc, 11 Ir. Ch. 
 Rep. 2G0. See also infra, Ch. XVIIT. 
 
 ((/) Troutheck v. Bowjlaij, L. R. 2 
 Eq. 534. 
 
 (r) 20 & 21 Vict. c. 85, s. 25 ; 21 & 
 22 Vict. c. 108, p. 6. 
 
 (s) 20 & 21 Vict. c. Sp, s. 21. 
 
 (t) 37 & 38 Vict. c. 78, s. 6.
 
 TO BUY OR SELL REAL ESTATE. 11 
 
 freehold or copyliold liereditament is vested in a married Chap.i. 
 woman as a bare trustee, she may con^-ey or surrender the 
 
 same as if she were a feme sole. Tq-T'^ ^" ^^^' 
 
 *• 1 o / 4, When a 
 
 bare trustee. 
 
 The mere ceremon}- of marriaij,-e between a woman and a Case of 
 
 .,, ,.. , , 1 ,1 • J? invalid mar- 
 
 man With whom she is incompetent to contract marriage, oi ^iage. 
 
 course leaves her merely a feme sole; and, as such, aljle to deal 
 
 with her property as she thinks lit : 1 )ut in such a case a 
 
 purchaser from her, otherwise than by a deed in which her 
 
 quasi-husband concurs, and acknowledged by her pursuant to 
 
 the statute, would be entitled to strict proof of the facts 
 
 creating the incompetency. 
 
 The olvservations already made (ii) upon fraudulent sales Relief against 
 
 ,.. 'ix-'ij. i' 1 fraudulent 
 
 by an infant, apply, it is conceived, to similar transactions by sale by married 
 a married woman (.'k), but if the person dealing with her is woman, 
 aware that she is married, he cannot have the benefit of his 
 contract, unless it is formally ratified in the only way in 
 which by law a married woman is permitted to contract (y) ; 
 so if he is aware of her incapacity to confer a good title, he 
 may it seems, lose his right to make her estate liable for the 
 loss which he has sustained by her fraudulent act (z). 
 
 By the 8th section of the Married Women's Property Act, Married 
 
 Women's Pro- 
 
 1870, (o), it is provided that where any freehold, copyhold, perty Act, 
 or customary-hold property shall descend upon any woman, ' ' 
 married after the passing of the Act, as heiress or coheiress 
 of an intestate, the o^ents and profits of such property are, sub- 
 ject and without prejudice to the trusts of any settlement 
 
 {u) Stqmt, pp. 3, 4. ii/) Nicholl v. Jones, L. K. 3 Eq. 
 
 {x) See Jones v. Keamen, 1 Drn. C96, 709, 710 ; distinguish this ease 
 
 & W. 134 ; Savarjc v. Foster, 9 Mod. from Savarje v. Foster, supra. 
 
 35 ; and 6 Ves. 181 ; Derhishire v. (,:) ArnoUl v. Woodham, L. R. IG 
 
 Home, 3 De G. M. & G. 80 ; Blaclle Eq. 29. 
 
 V. Clcn-lc, 15 Beav. 603 ; Vawjhan v, («) 33 & 34 Vict. c. 93. This is the 
 
 Vandcrsterjen, 2 Drew, 363, 408 ; only section in the Act which affects 
 
 Liverpool Association v. Fairhurst, 9 the real estate of a married woman. 
 
 Exch. 422; Barroiv Y. Barrou; i K. See the Amuudment Act,37& 38 Vict. 
 
 & Jo. 409 ; tiharpe v. Foy, L. R. 4 Ch. c. f)0. 
 Ap. 35 ; re Lush's Trusts, ib. 591.
 
 12 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. affecting the same, to belong to such Avoman for her separate 
 ___!^.^J__ use, and her receipts alone are to be sufficient discharges for 
 the same. It seerns, hoAvever, doubtful whether this section 
 enables a married vroman in E(fuity to contract for the abso- 
 lute sale of real estate coming within its provisions ; and also 
 whether the section extends to real estate, which after the 
 passing of the Act descends upon a woman who is at the 
 time unmarried, but who subsequently marries. 
 
 By the 12th section of the Act the husband of a Avoman 
 mariied after the passing of the Act was exempted from all 
 liability in respect of her delits contracted l>cfore mar- 
 riage, but the wife, and her separate property, were made 
 liable to sati.sfy such debts as if she had continued unmarried; 
 and this liability has been held to extend to property to 
 Avhich she is entitled for her separate use without power of 
 anticipation (6). This section, so far as it exempted the 
 husband from liability, has been repealed, and he is now 
 liable to be sued jointly with his wife, and the debt or 
 damages may be recovered against him to the extent of 
 the assets received from his Avife as denned by the amending 
 Act (c). 
 
 Traitor-q, Qy lastly ; Tlic proposcd vendor may have been guilty of 
 
 felon?, &c. ' -^ ' ^ ,\ . . , & ^ 
 
 treason, or murder, either as principal or accessory before the 
 
 fact (d) ; and have thereby subjected his land to forfeiture, 
 and escheat, upon his attainder (e), that is upon sentence of 
 death being passed upon him (/) ; or of any other felony 
 punishable AA'ith death, attainder upon Avhich invoh'es for- 
 feiture during life (g) ; or he may haA^e incurred a prasmu- 
 nire (Ji) : and in any of these cases, or at least in any of the 
 first three, his conA'eyance, although bond fide, for A^aluable 
 consideration, and to a purchaser Avithout notice, Avas prior 
 
 (h) Sanrjcr v. Savr/cr, L. E. 17 Eq. (e) 3 Bac. Abr. 738. 
 
 470. (/) 4 Jarm. Conv. by S. 74. 
 
 (r) 37 & 3S Vict. c. 50. ((/) 4 Bl. Com. 385 : aud 54 Geo. 
 
 (d) 54 Geo. III. c. 145 J Geo, lY. HI. c. 145. 
 c. 31, B. 2. (/,) IGRicII. c. 5,
 
 TO BUY OR SELL ri-:al p:state. 13 
 
 to the 33 & 3-1 Vict., c. 23, subject to the inchoate rights of Chap. I. 
 the Crown, or the lord of the fee (i). In these eases, how- ' ^^ ' ' 
 
 ,ever, that Avhich we have, for convenience, referred to as 
 an incapacity to sell was in strictness, a mere want of 
 title as against the Crovrn or lord of the fee. The effect 
 of attainder was not avoided by a subsequent conditional 
 free pardon in the penal colony (k) ; nor had a pardon under Effect of 
 the sign manual the efficacy or legal effect of a pardon under ^^^ ^^' 
 the Great Seal (l) ; but proj^erty acquired by the convict's 
 own industry, after an absolute or conditional remission of his 
 sentence by the governor of the penal colony, was protected 
 by statute against the claims of the Crown (m). Leaseholds 
 of traitors and felons were, until the recent Act, forfeited to 
 the Crown upon conviction (w) ; but, of these, a bond fide 
 sale betv/een the criiiic and the conviction, would, it seems, 
 be held good (o). A felon's share of mone}^, which was 
 impressed with the character of realty, would not, in the 
 absence of anything to change its character, be treated as 
 personalty so as to let in the Crown's claim by forfeiture (2)). 
 By the 33 & 34 Vict., c. 23, the forfeiture and escheat of Forfeiture fe 
 lands and goods for treason and felony is abolished, but the aboiiahed^^ 
 Act does not affect the laAV of forfeiture consequent upon 
 outlawry (q) ; a convict, i.e., a person against whom, after the 
 passing of the Act, judgment of death or of penal servitude, 
 shall have been pronounced or recorded by any Court of 
 competent jurisdiction in England, Wales, or Ireland, upon 
 any charge of treason or felony (r), is rendered incapable, 
 while he remains subject to the operation of tlie Act, of 
 alienating or charging any property, oi- of entering into any 
 contract (s) ; but any property which he may acquire while 
 lawfully at large, under any licence, is not subject to these 
 
 ((') See Crosse v. Gayer, Cro. Car. {n) 4 BL Com. 388. 
 
 172 ; 6 Bac. Abr. 383; 4 Jarm. Conv. (o) i Bl. Com. 388. Sec Wkitulccr 
 
 by S. 75. V. Wlshoj, 12 C. B. 44. 
 
 (k) Re Church, 14 Jur. 617. (/<) Re Ilarrop's F.itate, 3 Drew, 
 
 (I) Bulloch V. Dodds, 2 B. & Al. 72»3 ; re Thompson's Trusts, 22 Bcav. 
 
 258. 506. 
 
 (w) 5 Geo. 4, 0. 84, s. 26. Gowjh v. ('^) Sect. 1. 
 
 Davlcs, 2 K. & J. s. 23 ; wliicli see as (r) Sect. 6. 
 
 to the general eflPcct of pardon. [s) Sect. 8.
 
 14 
 
 RESTRICTIONS OX GENERAL CAPACITY 
 
 Chaj). T. 
 Sect. 1. 
 
 Baukriqits 
 
 (lisaLilities (t). The Cl•o^\^l has power to appoint an ad- 
 ministrator, in whom, upon his appointment, all the real and 
 personal property of the convict is to vest («) ; and he has 
 an al)solute power to let, mortgage, sell, convey, and transfer 
 any part of such property as he thinks fit (./;) ; and full 
 directions are given as to the management of the convict's 
 property, which, subject to the payments and allowances 
 authorized by the Act, is to revert to the convict or his 
 representatives on the completion of his sentence, or on his 
 pardon or death (y). If no administrator is appointed, an 
 interim curator may be appointed by a Court of Petty 
 Sessions or by a Justice of the Peace, to administer and 
 manage the property and affairs of the convict (z) ; his duties 
 are analogous to those of a receiver of I'eal and personal 
 estate («) ; he has, it would seem, no power to sell or mort- 
 gage real estate ; nor can he sell or transfer any personal 
 estate, except with the authority of the Court or a Justice (&). 
 So, the incapacities of bankrupts and insolvents to sell, 
 depend merely upon their want of title as against their 
 assignees ; but in one case, of doubtful authority, it was 
 held that an uncertificated bankrupt might, as against 
 his assignees, make a good title in favour of a mortgagee 
 subsequent to and without notice of the bankruptcy (c). 
 
 Incapacitated 
 owners may 
 sell under 
 Lands C. C. 
 Act, 18i5. 
 
 And, with reference to incapacities to sell both of the 1st and 
 of the 2nd descriptions, we may here refer to the general 
 consolidating Act ©f the 8 Vict. c. 18 ; which enables owners 
 of partial estates and incapacitated owners (including tenants 
 in tail precluded from alienation by Act of Parliament (d), 
 and tenants for life wdth a restriction against alienation (e),) 
 to sell land to the promoters of undertakings authorized by 
 
 I 
 
 (0 Sect. 30. 
 (u) Sects. 9 and 10. 
 (x) Sect. 12. 
 (l/) Sect. 18. 
 (:) Sect. 21. 
 (a) Sect. 24. 
 
 (h) Sect. 25. Qy., whether under lii.s 
 general powers of management he can 
 
 let the real estate of the convict. 
 
 (c) Re CaicncaiCs Lcfjacy, 2 Jur. N. 
 S. 157 ; and cases cited in the Re- 
 porter's note. 
 
 (d) Ex parte Earl of Abcryavcnnu, 
 19 Beav. 153. 
 
 (c) Devcnish v. Droivn, 2 Jur. N.S. 
 101:3.
 
 TO BUY OR SELL REAL ESTATE. 15 
 
 Acts in which the general Act is incorporated (/) : and to the Chap. I. 
 provisions of the Commons' Inclosure {g), and Land-tax Re- ' 
 demption (h) Acts, Avhich empower such oAvners to effect :And under 
 
 ■^ ^ ' ^ Inclosure 
 
 sales for the purpose of meeting the expenses of inclosure, aud Land 
 
 or of discharging their other settled estates from land tax ; tiun Acts, 
 
 and to the provisions of the Acts authorizing leases and And under 
 
 sales of settled estates under the direction of the Court of Chan- Sales, &c., 
 
 eery (i) ; and to the provisions of the Acts authorizing the sale ^^^''' 
 
 ,. , 1 .1 x- T 1 1 /• 1 1 1 1 • And under 
 
 oi the I'esidences oi the clergy, and of glebe lands m certani Defence Act?. 
 
 cases {h) ; and to the provisions of the Improvement of Land And other 
 
 Act, 18G4 (l)\ and to the provisions of the Acts empowering 
 
 the Secretary of State for War to acquire lands for the defence 
 
 of the I'calm (?n) ; and to the Acts authorizing the gift oi' sale 
 
 by incapacitated owners of land as a site for scIkjoIs (?i), or 
 
 for churchyards (o), or for sites for places of religious worship, 
 
 &c. {]}), and generally to the Acts incorporating the proAdsions 
 
 of the Lands Clauses Consolidation Act. 
 
 We may here also refer to the statutory power which l)y Personal rcprc- 
 the Vendor and Purchaser Act, 1874 {q), Sect. 4, is given to the mortgagee" 
 legal personal representative of a mortgagee of a freehold Tt^^s"!'^ ^ 
 estate, or of a copyhold estate to Avhich the mortgagee has 
 been admitted to convey or surrender the mortgaged estates 
 on puiimcnt of all sums secured by the mortgage. Apparently 
 this section is now in operation wdiethei- the moi-tgao-e was 
 
 (/) See sects, 6, 7, d scq. (/) 19 & 20 Vict. c. ]-20 ; 21 & 22 
 
 (i/) 6 & 7 Will. IV. c. 115, ss. 40, Vict. c. 77 ; and 37 & 3S Vict. c. 33 ; 
 
 47 ; 8 & 9 Vict. c. 11 8-; 9 & 10 Vict. as to which, ride infra, C'li. XX. 
 
 c. 70 ; Acts for facilitating drainage, (/.) 1 & 2 Vict. c. 23, s. 7, ct scq. ; 
 
 9 & 10 Vict. c. 101 ; 10 & 11 Vict. 2 & 3 Vict. c. 49, s. 15, ct seq. 
 
 c. 38 ; 12 & 13 Vict. c. 100 ; 13 & 14 [I) 27 & 28 Vict, c 114 ; see too, 
 
 Vict. c. 31 ; 19 & 20 Vict. c. 9. See the Limited Owners' Residences Act, 
 
 also the Amendment Acts, 10 & 11 1870, 33 & 34 Vict. c. 56, partially re- 
 
 Vict. c. Ill ; 11 & 12 Vict. c. 99 ; 12 pealed and amended by 31 & 35 Vict. 
 
 & 13 Vict. c. 83 ; 15 & 16 Vict. c. 79 ; c. 84. 
 
 17 & 18 Vict. c. 97 ; 20 & 21 Vict. c. (ni) 5 & 6 Vict. c. 91 ; IS & 19 Vict. 
 
 31 ; 22 & 23 Vict. c. 43. c. 117 ; 23 & 24 Vict. c. 112. 
 
 (70 42 Geo. IIL c. 116, ss. 14, 53, («) 4 & 5 Vict. c. 38 ; 12 & 13 Vict. 
 
 98 ; 51 Geo. TIL c. 70, s. 41, c. 173, c. 49. 
 
 ss. 6, 8, 12 ; 57 Geo. III. c. 100 ; 1 & (o) 30 & 31 Vict, c 133 
 
 2 Vict. c. 57 ; 16 & 17 Vict. c. 74, s. {p) 36 & 37 Vict. c. 50. 
 
 117. See Beadcii v. Kinj, 9 Ha. 49f). {q) 37 & 38 Vict. c. 78, s. 4.
 
 IG RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. executed, or tlic death of the mortgagee occurred previously 
 
 LI to or since tlic passing of the Act, if only the mortgage debt 
 
 is paid off after the 7th August, 1874; nor is it confined to 
 the case of a mortgagee dying intestate as to his mortgage 
 estate. As the section is framed, the power only arises on pay- 
 ment of all sums secured by the mortgage : and it may be 
 made a question whether a realization from an exercise of a 
 power of sale would amount to " payment " within the 
 meaning of the Act. Assuming, however, as seems probable, 
 that such would be held to be the case, still if the sale is 
 for a sum insufficient, after payment of expenses of sale, to 
 discharge the entire amount due on the security, the section 
 does not apply ; and on a sale in lots to several purchaser 
 the title of each purchaser to the legal estate will in many 
 cases depend upon its being shov/n that prior to the execution 
 of his conveyance the vendor had received the purchase- 
 moneys for the other lots. It may also be a question Avhether 
 the section- includes the case of a mortgagee who, having 
 been paid off, dies without having reconveyed. 
 
 Incapacity of There is no positive law that property beiono;ini>: to a 
 
 chanty trua- _ -■■ . . ■ ? 
 
 tees. charity shall be absolutely inalienable, but the onus is thrown 
 
 on the alienee and those claiming under him of showing that 
 the sale was beneficial to the charity (r) ; and, unless V.-.h can 
 be done, the transaction will be set aside (s). There is naturally 
 a strong presumption that land, once devoted to the charitable 
 purpose, is intended for ever to remain inalienable ; but under 
 special circumstances the right to alienate it may be presumed. 
 Thus whore a sale of charity lands had taken place at a very 
 distant date, and had always been acquiesced in, and the 
 origin of the charity was lost in obscurity, it was held that 
 
 {r)8eee. [/. Att.-G'cn.v.BycUui[/ham, v. South Sea Co., 4 Beav. 453; Att.- 
 
 3 Beav. 91. Gen. v. Paryeter, 6 Beav. 150 ; AU.- 
 
 (s) As to the alienation of charity Gen. v. Pilyrim, 12 Beav. 57 ; 2 Mac. 
 
 landsby trustees, see ^4 «.-6'i'/i.v.G'rccw, & G. 414 ; Att.-Gcn. v. Ma'jdalen Col- 
 
 6 Ves. 452; Att.-Gen. v. Corp. of ler/e, 18 Beav. 223, and cases cited; 
 
 Neu-arl; 1 Ha. 395 ; Att.-Gen. v. Att.-Gen. v. Davey, 19 Beav. 521 ; 4 
 
 BrcttinyJiam, 3 Beav. 91 ; Att.-Gcn. De G. & Jo. 136. 
 
 1
 
 TO BUY OR SELL REAL ESTATE. l7 
 
 a power in the trustees to sell might be presumed (/"). The chap. I. 
 Court of Chancery has power under its general jurisdiction, _. ^^^^' ^' 
 and also under Sir Samuel Romilly's Act (52 Geo. III. c. 101), 
 to direct a sale of charity property, without the sanction of 
 the charity commissioners (u) ; and, notwithstanding any of 
 the disabling statutes, sales of charity lands may now be 
 effected under IG & 17 Vict. c. 137, s. 24 (x). So, where, cor- 
 porations or trustees in the United Kingdom, holding moneys 
 in trust for any public or charitable purpose have, under the 
 33 & 34 Vict. c. 34, invested their trust funds in any real 
 security, and the equity of redemption of the premises com- 
 prised therein has become liable to foreclosure, or has been 
 otherwise barred or released, the same are by the Act directed 
 to be sold and converted into money. But without the express 
 authority of Parliament or the Court of Chancery, or unless 
 they are acting under a scheme legally established, or with the 
 approval of the commissioners, charity trustees are noAV pro- 
 hibited from selling or charging any portion of their charity 
 lands (y). By a recent statute (z) the trustees of any charity 
 for religious, educational, literary, scientific, or jjublic chari- 
 table purposes, upon obtaining from the charity commissioners 
 a certificate of incorporation, may in their corporate name 
 hold, acquire, convey, assign, or demise any present or future 
 property belonging to their trust, Ijut onl}- in the same way 
 and subject to the same restrictions as they might have done 
 without such incorporation. 
 
 We may here also conveniently refer to the limited powers of ecdesi- 
 of alienation, which, in respect of corporate property, have ^or '^oration^^ 
 been conferred l)y the following statutes: — The 14 & 15 Vict. 
 c. 104 authorizes ecclesiastical corporations, with the approval 
 
 (0 Att.-Gcn. V. Maydalen Col. (j H. charity informations, see Att.-Gcn. v_ 
 
 L. Ca. 189. Drapers Co. G Beav. 382 ; Att.-Gen, v. 
 
 («) /?c^s/tto)i C'/iajvVy, 22Beav.288. rrcfi/mnn, 4 Beav. 4G6 ; Att.-Gen. v. 
 
 (x) And see 18 & 11) Vict. c. 124, s. Ilall, 16 Beav. 388 ; Att.-Gcn. v. Maj- 
 
 38. dalcit CoUe(je,\9, Beav. 223; ct ride 
 
 (y) 18 & 19 Vict. c. 121,8. 29. As infra, Ch. XXI. 
 
 to what accounts are directed in (z) 35 & 36 Vict. c. 24. 
 
 VOL. I.
 
 18 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 1. 
 
 Of municipal 
 corporation^;. 
 
 Sect. 2. 
 
 Who are 
 relatively 
 incompetent 
 to sell. 
 
 Persons 
 having no 
 transferable 
 interest. 
 
 Persons 
 
 standing in 
 
 special 
 
 influential 
 
 relation 
 
 towards 
 
 proposed 
 
 purchaser. 
 
 Conditions 
 in restraint 
 
 of the church estates coininissioners, to sell, enfranchise, and 
 exchange church lands, or to purchase the interests of their 
 lessees ; and these powers, at first tempoi-ary, have been con- 
 tinued by later Acts («). The 19 and 20 Vict. c. 95 authorizes 
 sales and exchanges of land held by the university of Oxford 
 or any of its colleges, or by Winchester College, and amended 
 and extended by the 23 & 24 Vict. c. 59 ; by the 21 & 22 Yict. 
 c. 44, restricted powers for the sale, enfranchisement, and 
 exchange of lands are given to the universities of Oxford, 
 Cambridge, and Durham, and their several colleges, and to 
 the colleges of Eton and Winchester. Workhouses, lands, 
 and other parish property may be sold under 5 & G Vict, 
 c. 18 (6). We may also refer to the restrictions imposed on 
 sales by municipal corporations by the 94th section of the 
 5 and G Will. IV. c. 7G, and to the powers of alienation given 
 by the Land Tax Redemption Acts. 
 
 (2.) Who arc relatively incompetent to sell. 
 Incaj)acities to sell of the second description may be con- 
 sidered to consist in, 1st, the want of a transferable (c) title 
 to the property proposed to be dealt with ; and, 2ndly, the 
 existence of some relation between the proposed vendor and 
 the purchaser which prevents a sale except under special 
 precautions. 
 
 Upon the first of these subdivisions we may remark, that 
 a right of alienation is generally incidental to and inseparable 
 from the beneficial ownership of property. Thus a mere 
 declaration annexed to a gift to A. in fee [cT) — or, it is con- 
 ceived, for any estate (e) — that the property shall not be 
 aliened, or shall not be charged (/), is repugnant and void ; 
 
 {a) 17 & 18 Yict. c 116; 19 & 20 
 Vict. c. 74; 20 & 21 Vict. c. 74; 21 
 & 22 Vict. c. 57 ; 22 & 23 Vict. c. 46; 
 23 & 24 Vict. c. 124, s. 28; 24 & 25 
 Vict. c. 131. 
 
 (h) See too 20 & 21 Vict. c. 13. 
 
 (c) See Att.'Gen. v. Corp. of Ply- 
 mouth, 9 Beav. 67 ; where a corpora" 
 tion was held incapable in Equity of 
 contracting to sell property, by reason 
 of a duty which it owed in respect 
 
 thereof to the public. As to the 
 remedy in cases of collusive aliena- 
 tions of corporate propertj', see 5 & 
 6 Will. IV., c. 76, s. 97, and Att.- 
 Gen. V. Wilson, 9 Sim. 30. 
 
 ((0 Co. Litt. 206 b, 223 a ; 2 Jarm. 
 Wills, 3rd edit., p. 15. 
 
 (e) See, as to an estate for life, 
 Rochford Mf. Ilachnan, 9 Ha. 475 ; 
 and see Bird v. Johnson, 18 Jur. 976. 
 
 (/) Willis V. Uiscox, 4 ]Myl. & Cr. 201.
 
 TO BUY OR SELL HEAL ESTATE. ' 19 
 
 the estate cannot be preserved to A. despite his own vohni- Chap. I. 
 tary acts or invohmtary misfortunes : hut, within certain ___!1.!_1^ 
 
 limits, which do not seem to be very clearly defined by the °.^ aliena- 
 
 •'■'*' tion : — how 
 
 authorities {(j), the estate limited to him may be made to far valid. 
 determine or go over on the occurrence of any thing which, in 
 case he were absolute owner, would operate as a voluntary or 
 involuntary alienation. But though a man may, on alien- 
 ation, qualify tlie interest of his alienee by a condition to 
 take effect on bankruptcy, he cannot, by contract or other- 
 wise, qualify his own interest by a condition to take effect 
 on his own Ijankruptcy, though it seems he may do so by a 
 condition to take effect on his own attempted alienation, 
 although for value (/«). Where the condition is in an active 
 form, requiring something to be done by the grantee, and 
 there is no collusive purpose, an act in iuvltiun, such as bank- 
 ruptcy, or the giving of a warrant of attorney, is not a cause of 
 forfeiture (i). The case of a married woman furnishes an ex- 
 ception from the general rule : she, as we have already seen (k), 
 may, in Equity, be effectually restrained while covert from 
 dealing with even her fee simple estate : and no condition or 
 gift over is necessary to give effect to the restriction ; inas- 
 much as it operates to create in her a personal discpialification 
 to contract or convey the j)articular property: the provision 
 in such a case being one, not of forfeiture but of preservation. 
 
 We may here remark that the fact of a Avoman being a 
 professed nun does not affect her capacity to take or dispose 
 of property (Z). 
 
 Upon the 2nd subdivision we may instance the case of UncUie 
 
 If 1 1 11 1 • 1 • influence. 
 
 an agent lor j)urchase, who cannot sell his own estate to his 
 principal, without acquainting him Avith the fticts(m) : and, as 
 
 (g) See Co. Litt. 223, a.; Mas- (/) Arlgnn v. IMrnc.^, 1 J. & H. 
 
 cJiamp V. Bluet, Bridg. B,. 132; Ware 539; and see cases cited in note, 
 
 V. Cann, 10 B. & Cr. 433 ; Doe v. ib. p. 540. 
 
 Pearson, 6 East, 173 ; Larcje's case, {k) Supra, p. 10. 
 
 2 Leon. 82 ; 1 Coll. C. C. 445; Willis {I) Re Metcalfe a Trusts, 2 I)e G. 
 
 V. Hiscox, 4 Myl. & Cr. 302 ; Att- Jo. & S. 122 ; 10 Jur. N. S. 221, 287. 
 
 water v. Attwater, 18 Jur. 50, n. 2 (m) Gillett v. Pcppcrcornc, 3 Bcav. 
 
 Jarm, Wills, 3rd edit. 17. >> 78 ; Rotliscldld v. Brookman, 2 Dow. & 
 
 iji) Knirjht V. Browne, 7 Jur. N. S. C. 188 ; Bcntlci/ v. Craven, 18 Bcav. 
 
 894;Z?)•ool•cv,PertJ•so)^,5Jur.N.S.,781. 75; Blake v. Movatt, 21 Beav. 603, 
 
 c 2
 
 20 
 
 nESTlUCTIOXS ON GENERAL CAPACITY 
 
 Chap. I. 
 
 Sect. 2. 
 
 a general rule, whenever such a relation subsists between 
 contracting parties as may enable one to exercise nndue in- 
 fluence {)}) over the other, whether the relation be that of 
 parent and child (o), guardian and Avard, legal adviser and 
 client (p), trustee and cestui que trust, medical man and 
 patient, sj)iritual adviser and penitent, or Avhatever else may 
 be the nature of the confidential relation, if influence is ac- 
 quired and abused, or confidence reposed and betrayed (g), 
 the Court, upon proof of the exercise of such undue influence, 
 will set aside the transaction ; and the circumstance of the 
 real facts not being stated on the face of the assurances will 
 be conskleved jJ^'imd facie evidence of fraud (r). 
 
 Sect. 3. 
 
 Who are 
 
 generally 
 incompetent 
 to purchase. 
 
 Corporations 
 cannot hold 
 without 
 licence. 
 
 (3.) IV/io are generally incompetent to purchase. 
 
 Purchasers must, necessarily, be either individuals or a cor- 
 poration : corporations, of whatever description, may purchase, 
 but cannot, in their coi-porate capacities, hold land, except 
 under a licence to hold in mortmain (s), or under the special 
 provisions of an Act of Parliament (;f). 
 
 (n) See Cashorne v. JBarskam, 2 
 Beav. 76 ; Cooke v. Lamotte, 15 Beav. 
 234, 239 ; Couhon v. AlHson, 2 De G. 
 F. & Jo. 521. 
 
 (o) Uo'jfitoii V. Ilor/ldon, 15 Beav. 
 278 ; see Beanland v. Bradley, 2 
 Sm. & G. 339 ; Wrirjld v. Vanderphmh, 
 
 2 K. & J. 1 ; Dimsdah v. Dimsdulc, 
 
 3 Drew. 556. 
 
 (jn) Brovjn v. Kcnncdi/, 33 Beav. 
 133; 10 Jur. N. S. 141. 
 
 ('/) Smith V, Kai/, 7 H. L. Cas. 750 ; 
 Harrison v. Guest, 6 D. G. M. & G. 
 432 ; Jifiodcs v. Bate, L. R. 1 Ch. Ap. 
 252; Tate v. Williamson, L. B. 1 Eq. 
 528 ; L. R. 1 Ch. Ap. 56 ; and see 
 Ilaygarth v. Wearing, L. E. 12 Eq. 
 320 ; where the fiduciary relation 
 was held not to be established, but 
 the deed was set aside on other 
 grounds. 
 
 (r) See Mul/udlen v. Marum, 3 
 Dru. & W. 317; Ahearne v. Hoyan, 1 
 Dm. 310 ; Gibson v. Jiimell, 2 Y. & C. 
 C. C. 104 ; Hatch v. Hatch, 9 Ves. 202 ; 
 
 Hur/uenin v. Baseley, 14 Ves. 273; 
 2 Wh. & Tud. L. C. 406 ; Dent \. Ben- 
 nett, 4 Myl. & C. 269; Harvey v. 
 Mount, 8 Beav. 439 ; Billage v. Suuthce, 
 9 Ha. 534 ; Baker v. Loader, L. K. 
 1 6 Eq. 49 ; and cases therein respec- 
 tively cited; see too Middleton v. 
 Sherburne, i Y. &C. 358. 
 
 (■•<) Co. Litt. 2 b. A benefit buil- 
 ding society under the 6 & 7 Will. 4, 
 c. 32, might purchase real estate ; 
 Mullock V. Jenkins, 14 Beav. 628 ; but 
 this Act, except as to subsisting so- 
 cieties, has been repealed by the 37 & 
 38 Vict. c. 42, which apparently re- 
 stricts the power of such a society to 
 hold land to what they hold by way 
 of mortgage, or acquire by foreclosure. 
 See as to charities, 16 & 17 Vict. c. 137, 
 s. 27 ; 18 & 19 Vict. c. 124, ss. 35 and 
 41 ; and supra, a. 1. 
 
 {t) In a recent case, Pen-ing v. 
 Trail, L. E. 18 Eq. 88, it was held 
 that a statutory power conferred on a 
 charity to acquire land by will, im- 
 
 1
 
 TO BUY OR, SELL REAL ESTATE. 21 
 
 Purchases by indi\a(luals, imincorporated, must be made Chap. I. 
 by them in their private capacities and individual names : ^c . . 
 
 e. q. a purchase by, eo nomine, the inhabitants of a place, or P^cliase by 
 
 , , . r ' unmcorpo- 
 
 the parishioners or churchwardens of a parish, is bad ; so rated class, 
 is a similar purchase by, or grant to, the commoners of a 
 
 waste (u). 
 
 But, by custom, in London and elsewhere, the parson Parocbiai 
 and churchwardens are a corporation to purchase and hold may°puSie 
 land (x) ; and so, by statute, are churchwardens and over- ^^'^ ^°^^- 
 seers generally in some matters relating to the Poor Laws (y), 
 and to Education (0). So, too, certain quasi corporate bodies, So also local 
 as Local Boards of Health established under the Public ^"'''''^'' '^°' 
 Health Act, 1848 (a), and Improvement Commissioners 
 acting as Burial Boards (6), or the Sanitary Authorities under 
 the Public Health Act, 1872 (c), to which these local juris- 
 dictions have now been transferred, may purchase and hold 
 lands for the purposes authorised by their Acts. So, too, Public 
 public companies formed under the Companies Act, 18G2, may ^'^^l'*^^®^* 
 hold lands : but if formed for the promotion of art, science, 
 religion, or charity, or any like object not involving the 
 acquisition of gain, the quantity so held must not exceed two 
 acres, unless the Board of Trade sanctions a larger holding (d). 
 
 We may here also refer to the 21st & 22nd Vict. c. 92, as Purchases for 
 amended by the 34 Vict. c. 14, under which contracts for the purposes. 
 purchase of property for certain county purposes may be 
 entered into in the name of the Clerk of the Peace on behalf 
 of the Justices, and the purchased property may be conveyed 
 to the Clerk of the Peace, and will vest in his successors in 
 the office from time to time. 
 
 plied a power to devise land for the (b) 20 & 21 Vict. c. 81 ; 23 & 24 
 
 purposes of the charity. Vict, c. 64. As to the metropolitan 
 
 (n) Co. Litt. 3, a. area, see 16 & 17 Vict. c. 134 ; 18 & 
 
 (a;) See Warner's case, Cro. Jac. 19 Vict. c. 128 ; 20 & 21 Vict. cc. 35, 
 
 532 ; note (4) to Co. Litt. 3, a. 81 ; 24 & 25 Vict. c. 101. 
 
 (y) 9 Geo. I. c. 7, s. 4 ; Sug. 883. (c) 35 & 36 Vict. c. 79 ; and see the 
 
 (z) Jointly with the minister ; see Amendment Act of 1874, 37 & 38 
 
 4 & 5 Vict. 0. 38, ss. 7 & 8 ; 12 & 13 Vict. c. 89. 
 
 Vict. c. 49 ; and 14 Vict. c. 24. {d) 25 & 26 Vict. c. 89, ss. IS, 21. 
 («) 11 & 12 Vict. c. 63.
 
 22 RESTRICTIONS ON GENERAL CArACITY. 
 
 Chap. I. Previously to the passing of the Naturalization Act, 1870, 
 
 an alien might purchase before denization ; but the Crown 
 
 Alien could 
 not hold. 
 
 might at any time assert its right to the property (e), unless 
 the alien was a subject of a friendly state, and the property 
 was taken for the purposes of his own residence or business 
 for a term not exceeding twenty-one years (/) ; and the 
 Crown might exercise the right of re-entry, without the 
 necessity of any inquisition being taken, or office found (g). 
 Before the Crown had exercised its right of re-entry, an alien 
 might make a conveyance to a natural-born subject, which 
 though it could not defeat the prior right of the Crown, 
 would be valid in every other respect (h). The Crown could, 
 it was said, claim land vested in trustees for an alien (i) ; 
 but not his share of the produce of sale of real estate, devised 
 in trust to sell (k) ; nor, according to a modern decision, the 
 benefit of an executory trust to convey land to an alien (I) ; 
 but on appeal, the grounds of the decision were not ap- 
 proved ; and they were expressly dissented from in a later 
 case (m). 
 
 Leases to, The claim of the Crown extended to terms for years (n) ; 
 
 were oruiei y ^^^^ until recently, the only exception was of leases of 
 habitations of alien merchant friends during their lives and 
 residence within the realm (o). Leases, or agreements for a 
 lease (2?), to alien artificers or handicraftsmen, were, prior to 
 the now repealed statute of 7 & 8 Vict. c. G6, absolutely void ; 
 
 (e) Co. Litt. 2 b. Rex v. EoUand, Wadkin is approved of. 
 
 Aleyn, 14 ; Dumoncel v. Dumonccl, (k) Du BourmeHn v. Sheldon, 4 
 
 13 Ir. Eq. R. 93. Myl. & C. 525 ; and see p. 530, as to 
 
 (/) 7 & 8 Vict. c. 66, s. 5, now re- distinguishing Fourdrin v. Gowdey, 
 
 pealed by 33 Vict. c. 14. 3 Myl. & K. 383. 
 
 {g) 22 & 23 Vict. c. 21, s. 25. (Q Rittson v. Stordy, 3 M. & G. 
 
 (A) Shep. Touch. 232. 230. 
 
 (i) 1 Beav. 90 ; Sug. 685 ; but see {m) Bm-row v. Wadhin, 24 Beav. 1 ; 
 
 Rittson V. Stordy, 3 Sm. & G. 230, Sharp v. St. Sauveiir, L. R. 7 Ch. 
 
 affirmed on other grounds, 2 Jur. Ap. 343. 
 
 N. S. 410, but expressly dissented (n) Co. Litt. 2 b ; Rex v. East- 
 
 from in Barroiv v. Wadkin, 24 Beav. hourne, 4 East 107. 
 
 1, where the prior cases are very fully (o) 32 Hen. VIII. c. 16, s. 13. 
 
 reviewed ; see too Sharp v. St. Sauveur, (j:)) Lapiej-re v. M'Intosh, 1 Per. & 
 
 L. E, 7 Ch. Ap. 343, where Barrou- v. D. 629 ; 9 Ad. & E. 857. 
 
 (
 
 TO BUY OR SELL REAL ESTATE. 23 
 
 although an assignment to an alien artificer of a subsisting Chap. i. 
 lease has been held valid (q). By that Act, however, a 
 
 resident alien friend might hold any lands, houses, or other ^/^gjj!J?^ 
 
 tenements, for the purpose of residence, or of occupation by leases under 
 
 , . 7 & 8 Y ict. 
 
 himself or his servants, or for the purpose of any Ijusmess, c. 60. 
 trade, or manufacture, for any term not exceeding twenty- 
 one years, as if he were a natural-born sulject (7'). 
 
 But by the recent Act (-■) the disabilities of an alien as Naturaliza-^ 
 respects the acquisition of real and personal property have ' 
 
 been almost entirely removed ; and he may now acquire, 
 hold, and dispose of real property situate within the United 
 Kingdom as freely as a natural-born British subject; but 
 until he has obtained a certificate of naturalization after the 
 period of residence, and in the manner prescribed by the 
 Act (t), he cannot hold ofiice, or exercise any municipal, 
 parliamentary, or other franchise. The Act is not retrospec- 
 tive (ii) ; nor does it confer upon an alien any right to hold 
 real property situate out of the United Kingdom (x). 
 
 By the 7 Anne, c. 5, 4 Geo. II. c. 21, and 13 Geo. III. c. 21, Natural-born 
 the children of a male British-born subject, or of his son, are, j^^ ^^^ ~^^ 
 with certain special exceptions (y), to be considered natural- 
 born subjects ; and, l)y the 7 & 8 Vict. c. 6Q, the child born 
 of a British mother out of the Queen's allegiance is enabled 
 to hold land (z) ; and by the 33 Vict. c. 14, where the father, 
 or the mother being a widow, has obtained a certificate of 
 naturalization in the United Kingdom, every child of such 
 father or mother who during infancy has Ijecome resident 
 with such father or mother in any part of the United King- 
 dom, is to be deemed a naturalized British subject («) ; and 
 
 (g) Wootton v. Stfjfcnoni, 12 M. & (r) Sect. 2. subscct. 1. 
 
 W. 129. {y) As to which, see the Acts, and 
 
 (r) Sect. 5. Pitch v. Weher, 6 Ha. 51. 
 
 \s) 33 Vict. c. 14 ; amended as (:) Sect. 8. 
 
 respects the taking of oaths of alle- (n) Sect. 10, subsect. 5; see the pre- 
 
 giance by 33 & 34 Vict. c. 102, ceding sections as to the rcadmission 
 
 (0 Sect. 7, ct scq. to British nationality where the status 
 
 (m) Sharj^ v. St. Sauveur, L. R. 7 has been lost, and generally as to the 
 
 Ch. Ap. 343, and see sect. 2, sub- naticnial status of women and chil- 
 
 sect. 3. dren.
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. T. 
 Sect. 3. 
 
 l)y the 21 tt 22 Vict. c. 93, sect. 2, any person domiciled in 
 England or Ireland, or claiming any real or personal estate 
 in England, may, on petition to the Court for Divorce, obtain 
 a binding declaratory decree of his right to be deemed a 
 natural-born subject. Illegitimate children do not come 
 within these provisions, although legitimatised according to 
 a foreign law by the subsequent marriage of their reputed 
 parents (h). The 33 Vict. c. 14, also contains provisions (c), 
 under which naturalized or natural-born British subjects may 
 divest themselves of their nationalitv, and become aliens. 
 
 Denization. The right of the CroW' n to grant letters of denization is 
 
 not affected by the Naturalization Act, 1870 (d) ; but the 
 privileges which are incident to denization are less com- 
 prehensive than those which are now enjoyed by every 
 alien, and there seems to be no reason why this pre- 
 rogative of the Crow^n should be preserved. After deniza- 
 tion, the alien can both purchase and beneficially hold 
 land ; but, as the letters patent have not a retrospective 
 operation, the denizen cannot take by inheritance ; nor 
 are his issue born before denization capable of inheriting 
 from him (e). The denizen is entitled to land purchased 
 before denization, if the Crowai, before office found, has, by 
 the letters patent of denization, confirmed his estate (f). 
 
 Naturaliza- 
 tion. 
 
 Naturalization, for the purpose of holding land, could 
 formerly be obtained only ])y a special Act of Parliament (g); 
 but, by the 7 & 8 Vict. c. GO, a resident alien might 
 obtain a certificate of naturalization ; under which (so far as 
 the possession and enjoyment of property are concerned, and 
 subject to any special exceptions contained in the certificate), 
 he acquired all the rights and capacities of a natural-born 
 
 {h) Shcddca v. PutricJ:, 1 Macq. 
 H. L. C. 534 ; a case arising on the 
 4 Geo. II. 
 
 (c) Ss. 3 & 4. 
 
 (d) Sect. 13. 
 
 (e) See Fls?i v. Kle'in, 2 Mer. 431. 
 (/) Fovrdrln v. O'oicde;/, 3 T\Iyl. & 
 
 K. 383. 
 
 {(/} As to naturalization in the 
 Colonies, see 10 & 11 Vict. c. 83 ; as 
 to subjects of the United States, see 
 37 Geo. III. c. 97 ; Doe v. Achlam, 
 2 B. & Cr. 779 ; l<utton v. Sutton^ 1 
 R. & Myl. 663,
 
 TO BUY OR SELL REAL ESTATE. 2o 
 
 subject ; and now, Ity the 3o Vict. c. 14 (A), an alien who lias Chap. L 
 resided in the TTnited Kingdom, or has l)een in the service of ' 
 the Crown, for not less than five years, and intends when 
 naturalized either to reside in the United Kingdom or to 
 serve under the C*rown, may obtain from one of Her Majesty's 
 princijial Secretaries of State a certificate of naturalization ; 
 upon obtaining which and taking the oath of allegiance 
 required by the Act (i), the alien becomes entitled to all 
 political and other rights, powers, and pi-ivileges, and subject 
 to all the obligations of a natural-born British sul )ject in the 
 United Kingdom, except that, when within the limits of the 
 foreign state of which he was previously a subject, he is not 
 to be deemed a British su1)ject, unless he has lost his former 
 nationality; and an alien who has been naturalized under the 
 7 »S>: 8 Vict. c. GG may obtain a certificate of naturalization 
 under the recent Act, as if he were not already naturalized. 
 A married woman is to be deemed to be a subject of the Of female 
 state of which her husband is for the time being a subject, man-iaf^e. 
 but a widow, being a natural -born British subject, who has 
 become an alien by her marriage, is merely a statutory alien, 
 and as such may be readmitted to her British nationality in 
 manner j^rovided l)y the Act {k). It is conceived that in no 
 case does naturalization afi'ect the previously acquired title 
 of the Crown. 
 
 An infant can purchase ; but on his attaining twenty-one, infant pur- 
 he may, at his option, adopt or abandon the contract (/): and elect, after" 
 should he, either having attained twenty-one, die without ™^J*^"*^y- 
 exercising or relinquishing such option, or die under that age, 
 the like privilege descends on his representatives. The pur- 
 chase of an annuity b}^ an infant was made absolutely void 
 by statute, and incapable of confirmation after majority (m) ; 
 but this has been repealed by a later Act (n). 
 
 Any written instrument signed by the infant after attaining what amounts 
 
 (h) Secta. 7, etscqq. Brownl. 120; Cro. Jac. 320; Co. 
 
 {!) Sect. 9. Litt, 2 b. 
 
 (k) See sect. 10. Compare sect. IG of (m) 53 Geo. IIL c. 141, s. 8. 
 
 the 7 & 8 Vict. c. G6. (d) 17 & 18 Vict. c. 90, 
 (/) Kctlei/'s or Ketseij's rase, 1
 
 2G 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 3. 
 
 to confirma- 
 tion. 
 
 majoi-ity is a ratllication, if of such a nature as that, if signed 
 by an adult, it would amoimt to an adoption of the act of a 
 party professing to act as Ids agent (o) : and Avhere a written 
 ratification is proved, the infant must show, if he can, that 
 when he gave it, he had not attained majority (p). It is con- 
 ceived that the Infant Relief Act, 1874, does not apply to the 
 confirmation of such a contract. 
 
 He may be 
 bound by 
 simple ac- 
 quiescence. 
 
 "What time 
 allowed for 
 election. 
 
 Whether he 
 can recover 
 price. 
 
 And an express ratification is not essential ; mere acqui- 
 escence may suffice : e.g., occupation or receipt of the profits, 
 without dissent, for a short time after attaining majority, 
 would, it is conceived, confirm the transaction l)y election (q): 
 but the vendor cannot maintain an action for the purchase- 
 money, unless he can prove a ratification in writing (r). 
 
 No precise rule can Ije laid down as to the time within 
 Avhich the infant, after attaining majority, must elect. An 
 unexplained acquiescence of three or four months (s), or, even 
 a shorter period (t) in the case of a purchase, would probably 
 amount to confirmation ; but the delay of a fortnight woidd 
 not be unreasonable (u). If his election be to avoid the pur- 
 chase he ought to disclaim (a;). 
 
 And, although the infant may aljandon the contract, and 
 thus relieve himself from all unsatisfied liabilities under it, 
 he cannot, it is said, recover money which he has actually 
 paid, unless such payment were procured by fraud (?/), or 
 except in cases where he has derived no benefit from the con- 
 
 (o) Harris v. Wall, 1 Exch. 122. 
 
 (j)) Hartley v. Wharton, 3 Per. & 
 D. 529. 
 
 (q) See 8 Taunt. 42 ; Cork and 
 Bandon R. Co. v. Cazenove, 10 Q. B. 
 935 ; Neiory and Ennisldllen R. Co. 
 V. Coomhe, 3 Exch. 716 ; Leeds and 
 Thirsh R. Co. v. Fearnley, 4 Exch. 26; 
 North-u-cstern R. Co. v. M'MicJiael, 5 
 Exch. 114 ; Birkenhead, d-c., R. Co. v. 
 Pilcher, ibid. ; Dullin and Wexford 
 R. Co. V. Blacl, 20 L. T. 70. 
 
 (r) 9 Geo. IV. c. 14, s. 5 ; see 
 Morson V. Blaine, 23 L. T. 246. 
 
 (s) Ketlcys or Ketscy's case, 1 
 Brownl. 120 ; Cro. Jac. 320. 
 
 [t) See judgment in Ilohnes v. 
 Blorj'j, 8 Taunt. 42, Park, J. ; and 
 Birkenhead, dr , R. Co. v. Pilcher, 5 
 Exch. 127. 
 
 (u) 2 T. E. 439. 
 
 (x) See 5 Exch. 128 ; Goode v. 
 Harrison, 5 B. & A. 147. 
 
 (y) Macph. on Infants, 484 ; Wil- 
 son V. Kearsc, 2 Pea. N.P.C. 196 ; 
 see Chamb. on Inf. 431 ; Ex 'parte 
 Taylor, 8 De G. M. & G. 254.
 
 TO BUY OR SELL REAL ESTATE. 27 
 
 tract (~) ; and if lie Ijc unable to restore the consideration, Chap. T. 
 this will be an additional bar to the action : for instance, ''. LJ 
 
 where an infant paid a prcminm for a lease of business pre- 
 mises, and entered upon and occiipieil them, it was held, 
 upon his attaining- niajorit}' and rejnidiating the lease, that, 
 whatever might be the general rule, he could not, under the 
 circumstances, recover the premium, inasmuch as he had en- 
 joyed a part of that term, for which it formed the considera- 
 tion (a) : and although, upon the purchase of the fee simple 
 the same decisive effect might not always be attriljutable to 
 mere occupation (b), any act affecting the value of the estate, 
 e.(j., the felling of ornamental timl)er (c), or the removal or 
 alteration of buildings, frc, would, it is conceived, be con- 
 elusive against liis right to reclaim the purchase-money. 
 
 If, however, the infant had fraudulently represented him- Frauclulent 
 self to the vendor as an adult. Equity, it is conceived, would relieved, 
 relieve the vendor by restraining any action foi' the purchase- i'-g'^iis.^ 
 
 •^ o J i in equity : 
 
 money (supposing such action to be maintainable), and would scmble. 
 allow the vendor to avail himself of any collateral securities 
 which he might hold for the in:ipaid balance : but it could 
 not enforce any security given by the purchaser personally 
 during his infancy ; such being absolutely void (d). 
 
 A lunatic or idiot may purchase ; and, according to the Turehase \>y 
 early authorities, cannot himself, though he recover his far Voidable, 
 senses, avoid the transaction : Ijut it may lie set aside liy the 
 Crown, after office found (e); or by his committee, after inquisi- 
 tion (/) ; or by his representatives, after his decease, unless he 
 have recovered his senses and agreed to the purchase (g). The 
 present doctrine of the Courts in regard to such purchases 
 
 (2) See as to avoidance by infants (c) As to what is ornamental 
 
 of their contracts, and their right timber, see Ford v. Ti/nte, 2 De G. 
 
 to recover money paid thereunder. Jo. & S. 127. 
 
 Lindley Partnership, 86. ((/) Chamb. on Inf. 441. 
 
 Ca. Ab. 278. {e) Co. Litt. 247 a. 
 
 (a) Holmes \. Bloj'j, 8 Taiuit. 580. (/) Att.-Gcn. v. Parhhnrst, 1 Eq. 
 
 Ex parte Taylor, supra. (u) C'^- Litt. IK; 2 Bl. Com. 292 ; 
 
 (i) See however Bladlurn v. Shelf, on Lnn. 347. 
 Bmith, 2 Exch. 783.
 
 28 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. seems, however, to accord with that whicli has heen ah^eady 
 
 __' ' ' stated with respect to contracts for sale V)y hmatics (/<). In a 
 
 modern case, a purchase of an estate in consideration of the 
 
 release of a hond debt, was set aside at the suit of a legatee 
 
 of the bond debt (i). 
 
 Purchase by A married woman may purchase ; and can in Equity, b}' 
 
 married r. i i • n i 
 
 woman, when the contract lor purchase, bind her separate property, even 
 ^vithout referring to it (k) : in other cases the husband may 
 annul the purchase, and may recover the purchase-money at 
 law, unless she purchased by his authority (T) ; or it may be 
 annulled by herself after his death, although he may have 
 agreed to it ; or by her representatives, unless she agreed to 
 it after her husband's decease (m). 
 
 Cases where a Where the married woman is judicially separated from her 
 woman is husband (n), or has obtained a protection order under the 
 
 regarded as a (^|jyorce Acts (o), or where her husband is a convicted felon, 
 
 Temp siuf-. \ /' ' 
 
 or an alien enemy, she is at law capable of entering into a 
 binding contract for purchase (i^). 
 
 feme sole. 
 
 May be 
 confirmed by 
 acquiescence. 
 
 Fraudulent 
 purchase l^y, 
 relieved 
 against : 
 semble. 
 
 The general rules above referred to, respecting acquiescence 
 by an infant after majority, will, it is conceived, apply to the 
 case of a married woman retaining the estate, after the 
 termination of the coverture : and, in the case of a purchase 
 l>y a married woman representing herself to be single, oi- who, 
 contracting as if single, has so dealt with the property as to 
 prevent its perfect restoration in specie, Equity would, it is 
 conceived, secure to the vendor all his legal rights, and would 
 restrain the exercise of any adverse legal right by either the 
 woman or her husband, supposing him to have been privy to 
 the fraud. 
 
 (h) Supra, pp. C, 7. 
 
 {i) Steed v. Calleij, 1 Ke. 620 ; and 
 see >S'. a, Ball v. Mannin, 3 Bli. N.S. 
 1 ; cases cited suprd, p. 4, n. (u) ; and 
 Waring v. Waring, 6 Moo. P.C. 341, 
 as to evidence of insanity. 
 
 (i) Vide infra, Ch. XVIII. s. 3 ; 
 Sug. 68G. 
 
 (') Garhrand v. Alkn, 1 Ld. Eaym. 
 224. 
 
 (m) Co. Litt. 3 a, 356 b ; Barn- 
 father T. Jordan, Doug. 435 ; Sug. 
 686. 
 
 {n) 20 & 21 Vict. c. 85, ss. 25, 26. 
 
 (o) 20 & 21 Vict. c. 75, s. 21 ; and 
 21 & 22 Vict. c. 108, ss. 6—10. 
 
 {p) See Portland r. Prodgers, 2 
 Vern. 104 ; and other cases cited, 2 
 Rop. H. & W. 120,
 
 T(J BUY OR SELL REAL ESTATE. 29 
 
 Roman Catholics were formerly subject to disabilities in this Chap. T. 
 respect, which have been removed by a modern statute ((/). 
 
 lioman 
 •!/ r> Catholics. 
 
 Previously to the 33 k 34 Vict. c. 23, persons guilty ot rj^^^-^^^^,.^^ 
 treason, or felony, or who had incurred a pmemunire, might, felons, &c. 
 before judgment, purchase land ; but, upon judgment, it 
 became subject to the rights of the Lord of the fee, or of the 
 Crown : and purchases by such persons after judgment were 
 subject to the same rules as purchases by aliens before 
 denization (r). By the 33 & 34 Vict. c. 23, such persons, 
 while continuing subject to the operation of the Act, {i.e., 
 until bankruptcy or completion of the sentence or pardon or 
 death (s),) are incapacitated from entering into any contract (t), 
 except, it would seem, in respect of property which they 
 may acquire while lawfully at large under licence (u) ; but 
 they are not otherwise prohibited from purchasing land. 
 Upon the appointment, however, of an administrator, whose 
 position and duties are not unlike those of a trustee in bank- 
 ruptcy, all the property of the felon to which he was entitled 
 at the time of the conviction, or to which he becomes after- 
 wards entitled while subject to the operation of the Act, 
 vests in the administrator (x) ; so that any purchase made 
 by the felon after his conviction, and not falling within the 
 exception contained in the Act, enures to the administrator 
 for the purposes of the Act. 
 
 Upon a purchase by a bankrupt before obtaining liis Bankrupts 
 certificate (y), or his order of discharge (s); or by an insolvent vents. 
 under the 1 & 2 Vict. c. 110 (a), before his final discharge, in 
 
 («/) 10 Geo. IV. c. 7. As to the (u) Sect. 30. 
 
 position of Roman Catholics with re- (x) Sect. 10. 
 
 ference to laud devoted to religious or (y) 6 Geo. IV. c. 16 ; and sec 12 & 
 
 charitable purposes, see 2 & 3 Will. 13 Vict. c. 106, s. 142 ; and see now 
 
 IV. c. 115, and Anstey on Rom. Cath. 24 & 25 Vict. c. 134. 
 p. 128, et seq. As to what are mere (-) 24 & 25 Vict. c. 134, ss. 157, 
 
 voluntary associations and not chari- ct seq. 
 
 table institution's, see Cocksy. Manners, («) See sect. 37. The di.?charge of 
 
 L. R. 12 Eq. 574. the debtor, imder sect. 44, by the con- 
 
 ()•) Co. Litt. 2 b ; Bex v. Iladdcn- sent or default of the detaining crc- 
 
 ham, 15 East, 4G3 ; Sug. 884. ditor, took the property out of the 
 
 (s) Sect. 7. assignees and revested it in the debtor: 
 
 (i) Sect. 8. Graiujc v. TrkkeU, 16 Jur. 286, Q.B.
 
 30 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 3. 
 
 case of adjudication, or before his full, i.e., his unconditional 
 discharge (6), if there was no adjudication ; or by an insolvent 
 under the o k, (J Vict. c. IIG (c), before his debts Avere paid 
 in full, the land vested in the assignees. After the debts 
 were paid in full, no revesting order, under 5 & 6 Vict. c. llG, 
 was necessary in respect of equitable interests {d) ; and accor- 
 ding to the law, as it existed before the passing of the Bank- 
 ruptcy Law Consolidation Act, 1849, where the bankrupt's 
 estate had not paid fifteen shillings in the pound, and he had 
 previously been bankrupt, or discharged under an Insolvent 
 Act, or had compounded with his creditors, the rights of the 
 assignees were not affected by his certificate (e). The 
 subsequent statutes do not contain any similar provision. 
 But a bankrupt, although he has not obtained his certifi- 
 cate of conformity under the Act of 1849, or his order of dis- 
 charge under the Acts of 1861 & 18G9, can acquire and hold 
 property against every one but his assignees or trustee. 
 
 Insolvent 
 j udgment 
 afrainst. 
 
 Hatisfactiou 
 on, 
 
 And in the case of an insolvent under the 1 & 2 Vict- 
 c. 110, although property acquired by him after his final 
 discharofe did not vest in his assio-nees, it still remained until 
 his debts were paid in full (/), subject to the judgment which 
 was directed by the 87th section to be entered up against 
 him. The rights of the assignees were, however, subject to 
 the same equities, in favour of third parties, as would have 
 affected an assignee by deed {<j) ; and unless and until judg- 
 ment was entered uj), the insolvent's after-acquired estate was 
 unaffected Qi). Such a judgment did not require registration 
 under the Act : but it could not be enforced without per- 
 mission of the Court, which alone, to the exclusion of the 
 
 {h) Basham v. 8mhli, 22 Beav. 190. 
 
 (c) See sect. 7. Insolvent debtors, 
 under the 7 & 8 Vict. c. 70, seem to 
 have been in the same position, as 
 regards after- ac(]uired property, as 
 bankrupts. See sects. 8 and 13. 
 
 (d) ^ycaring v. Ellis, G De G. M. & 
 G. 596. 
 
 (e) 6 Geo. 4, c. 16, s. 127. 
 (/) See sect. 92. 
 
 (ff) Re Atkinson, 2 De G. M. & G. 
 140 ; Ee Canihorne, 4 De G. & S. 551, 
 So in bankruptcy, semUe, re Barr, 6 
 W. E. 424 ; 4 Jur. N. S. 1013. Com- 
 pare Barthtt V. Bartlett, 1 De G. & 
 Jo. 127 
 
 (li) Re Moylaii, 16 Beav. 220 ; Jfuls- 
 (jrnrc v. Ilcd'jcs, 3 Drew. 74 ; Hawker 
 v. JIallcwcU, 2 Sm. & G. 498.
 
 TO BUY OR SELL HEAL ESTATE. 31 
 
 Superior Courts, had jurisdiction to order satisfaction to Le Chap. T. 
 
 entered up on such a judgment (/). U__ 
 
 (4.) }Yho are relatively inco'ini)etent to purcJtase. Sect. 4. 
 
 The remarks ah-eady made (kX as to undue ])crsonal Wboare 
 •^ ^ ^ -^ relatively 
 
 influence, seem t(j apply as well to purchasers as to vendors, incompeteut 
 
 to purchase. 
 
 It is also a general ride of Equity, that no person " who 
 by being employed or concerned in the affairs of another flduciary 
 has acquired a knowledge of his property" (I), or who, in character. 
 respect to the property to be sold, has a duty to perform 
 which is inconsistent with the duty or interest of a pur- 
 chaser (m), shall himself purchase such property ; nor shall he 
 purchase for himself in another's name ; nor shall he hiuiself 
 purchase as agent for another (n) ; nor perhaj)s, even employ 
 a third person to buy as agent i'or another (o). And where 
 the same agent acts for two opposing parties, it must aj^pcar 
 that the principals were placed at arm's length in the trans- 
 action (p). Where the rule depends upon legislative enact- 
 ment, or is founded on general principles of public policy, 
 it amounts to a prohiljition : but Avhcre it is intended 
 merely to protect the interests of individuals, the purchase, 
 although prima facie voidable, may be sustained by evidence 
 of those interests having been sufficiently guarded in the 
 transaction. 
 
 And in a recent case, {<]) which well illustrates tlie princi})le 
 which guides the Court in judging of the validity of such 
 transactions, where A, a nephew of a former trustee of B's 
 property, Avas coinnussioned by his uncle to advise and assist 
 B in the settlement of his debts, and A and B uiet and 
 consulted, it was held that this constituted such a fiduciary 
 relation between A and B as rendered it incumbent on the 
 former to connnunicate to the latter all material information 
 
 (t) Siarrjcs V. Jon, 22 L. T. 82 H. L. C. 461 ; Tak v. Willunnson, 
 
 Q. B. L. R. 1 Eq. 528 ; L. R. 2 Ch. App. 5G. 
 
 {h) pp. 10, 20. (») 9 Ves. 248 ; 10 Vcs. 381. 
 
 {I) Sug. 088 ; Ahcarnc v. ILxjan, 1 (") See 10 Ves. 393, and Sug. 690. 
 
 Dru. 310. (/>) Hesse v. Bn'ant, 6 Ue G. M. & 
 
 (m) Greoilaw v. Kin^, 3 Beav. 49 ; G. 623. 
 
 Aberdeen R. Co. v. Blaikie, 1 JIacq. {q) Tale v. WiUianisun, sirprd.
 
 82 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. whicli he acquired as to the value of B's pro^^erty, and a sale 
 L_l from B to A was set aside on the ground of concealment. 
 
 Purchase by, A purchase coming within the rule is not rendered valid 
 
 although by Uy the fact of its having been by auction (r), or under a 
 the Court^^and ^^^^'^^ ^^ ^^^ Court («) : or by the purchaser having had 
 though independent professional advice (t) : nor, when a person by 
 
 rately advised, tilling a confidential office has acquired a knowledge of 
 property, is his capacity to purchase it restored by his retire- 
 ment from office (v) ; for his knowledge remains. 
 
 Ivule, in -The rule, in its more stringent form, applies to the several 
 
 its more ^.^^^^ ^f 
 
 stringent 
 
 form, affects 
 
 l^urchases by An ai'biti'ator contracting for unascertained claims of 
 Arbitrators : paries to the reference (r) : 
 
 Assitmees : All assignee or trustee of a bankrupt ; against whom the 
 
 rule is said to be more than ordinarily stringent (;x) ; and it 
 precludes a purchase by his partner on behalf of the firm (_y): 
 the Court has, however, on the petition of a purchasing- 
 assignee, directed a reference to inquire whether the 
 purchase would be for the benefit of the estate, he 
 paying all the costs (s) ; and, on the rej)ort being favour- 
 able, has confirmed the sale (a) ; it has also, under special cir- 
 cumstances, allowed an assignee to be removed, at his own 
 recpiest, in order that he might bid at the sale of the bank- 
 rupt's estate (6) ; where, however, an assignee, who was also 
 second mortgagee of the property, applied for leave to bid, 
 (remaining assignee,) the Court refused the application ; but 
 
 (r) Sug. 691 ; 8 Yes. 349 ; liandall 
 T. Errw'jton, 10 Ves. 423 ; Sanderson 
 V. Walker, 13 Ves. 601 ; York Bull- 
 ding Co. V. Mackenzie, 8 Bro.P.C. 42 ; 
 Ingle v. Richards, 28 Beav. 361. 
 
 (s) Price v. Bi/rn, cited 5 Ves. 681, 
 and see Caryj v. Cary, 2 Scb. & L. 173. 
 
 (f) Tate V. Williamson, sujira. 
 
 (u) Ex parte James, 8 Ves. 352 ; 
 Carter v. Palmer, 8 CI. & F. 657 ; 
 Spring v. Pride, 10 Jur. N. S. 646 ; 
 but see as to agents Scott v. Dunhar, 
 1 Moll. 442, sed qu. 
 
 {r) Blcnnerhassett v. Day, 2 Ba. & 
 B. 116. 
 
 {x) Ex parte Lacey, 6 Vea. 630 n. j 
 Ex 2^cii'te Bennett, 10 Ves. 395 ; Ex 
 parte Alexander, 2 Men. & A. 492 
 Turner v. Trelaicney, 12 Sim. 49 
 Pooley V. Quiltfr, 2 De G. & Jo. 327 
 4 Drew, 184. 
 
 (.'/) Ex parte Burnell, 7 Jur. 116. 
 
 (:) Ex parte Gore, 6 Jur. 1118 ; 3 
 M. D. & De G. 77. 
 
 [a) S. C, 7 Jur. 136. 
 
 ^6) £x parte Perkes, 3 M. D, & De 
 G. 385.
 
 TO BUY OR SELL REAL ESTATE. 33 
 
 allowed him to name a piice at which he might take the Chap, I. 
 property if not sold at the auction (c) : and where a creditor's ^ 
 
 assignee, in another person's name, bought from a cre<litor, 
 Vice-Chancellor Kindersley was of opinion that the validity 
 of the sale depended on the vendor's believing that the 
 purchase was made on behalf of the assignee, and directed an 
 issue to determine the fact ; but on appeal the transaction 
 was declared wholly void, irrespectively of the vendor's 
 belief (d) : 
 
 A Bishop purchasing an annuity to be charged upon a Bishop wliose 
 
 rectory ; he being the person whose consent was required to required to^ 
 
 the sale ; although he gave a better price than could have ^^^^ '• 
 been elsewhere obtained (e) : 
 
 A Commissioner of bankrupts (/), althougli he had not Commis- 
 acted (g), or had ceased to act in the prosecution of the hat (A): Baukniptcy : 
 
 Cortimissioners for Inclosure under the general Inclosure Commis- 
 Act ; who cannot purchase any land in a parish in which inclosure : 
 an Inclosure is made, until five years from the date and exccu- aud Valuers ; 
 tion of their aivard (/) ; and a similar disability for the term 
 of seven years affects valuers acting under the Commons 
 Inclosure Act (/r) : 
 
 The Committee of a lunatic's estate ; the Court has even Committee of 
 
 Lunatics : 
 
 refused to confirm a lease to the Committee, though approved 
 by the Master as advantageous to the estate (/) : 
 
 A member of a corporation, taking a lease of the corporate Cori)oniti..n 
 
 iiicmbcr of 
 
 property {m) : 
 
 (c) Ex parle Ilohjnian, 8 Jur. 150. (/) 41 Geo. III. c. 109, s. 2. 
 
 ((/) Pooley V. QaiUcr, 2 De G. & Jo. {Ic) 8 & 9 Vict. c. 118, s. 129. 
 
 327 ; 4 Drew, 181 ; see this case as to (I) Shelf, on Limacy, p. 41G. 
 
 the duties of assignees in bankruptcy. (;») Att.-Gen. v. Corp. of Cashd, 
 
 (f) Greenlaw v. Kin[/, o Beav. 49. 3 Dru. & W. 294 ; the lease was at a 
 
 (f) Ex jmrte Bc7Uiett, 10 Yes. ZSl. gross undervalue, and the property 
 
 ('j) Ex parte Harrison, 1 Buck. 17. was trust property, 
 (/t) Expartc Baijnton, 7 Jur. 244. 
 
 VOL. I, - II
 
 34 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. A governor of a cliarity, taking a lease of the charity 
 
 Sect. i. 
 
 lands (n) : 
 
 Governor of 
 
 charity : . • (• 
 
 Rector buyin'^ ^ rector, purchasing in the name of his curate, a portion oi 
 
 glebe : glebe sold for tlie redemption of the land-tax (o) : 
 
 Solicitor to 
 £at : 
 
 A solicitor to a commission of, or fiat in, Bankruptcy, 
 purchasing the estate from the commissioners ([i) : and a 
 solicitor conducting a sale under a decree and purchasing 
 the estate (7) : 
 
 Trustees for 
 purchase : 
 
 A trustee whose duty it is to purchase particular property 
 for his cestui que trust, (eg. : a trustee of renewable leaseholds 
 bound, if possible, to renew,) shall never buy it for himself; 
 even though the proposed vendor positively refuse to part 
 with it for the benefit of the cestui que trust (r) : but the pur- 
 chase if effected will be considered as made on their behalf (.s) ; 
 and any additional interest which the trustee ac<|uires by 
 purchase will belong to his cestui que trust (f) : subject, of 
 course, to the trustee being re-paid the purchase money : 
 
 And, in its 
 moditiecl 
 form, affects 
 purchases by 
 
 Agents : 
 
 And the rule, in its milder form, applies to the several 
 cases of 
 
 An agent fur sale (a) : excejDt where the vendor is well 
 
 (n) Atf.-Gcn. V. Lord Clarendon, 17 
 Ves. 491. 
 
 {o) Grovcr v. JIii;/cU, 3 Russ. 428 ; 
 but see Beaden v. Kln'j, 9 Ha. 499, 
 5-20, 
 
 {l)) Ex parte Bennett, 10 Yea. 381 ; 
 Morse v. Royal, 12 Ves. ; see p. 372, 
 and see Downes v. GrazebrooJc, 3 Mer. 
 200 ; et ride infra, p. 37. 
 
 {q) Owen V, Foidkcs, 6 Vest. G30, n ; 
 Sidny V. Ranrjer, 12 Sim. 118. 
 
 (r) Ex parte Bennett, 10 Ves. 395 ; 
 see Turner v. Trelaicnci/, 12 Sim. 49 ; 
 Keech v. Sandford, 1 Wh. & Tud. 
 L. C. 32, and cases there cited. 
 
 (s) See Tanner v. Elicorthy, 4 
 
 Bcav. 487. 
 
 (0 Fonhroolc V. Baijinj, 1 Myl. & 
 K. 226 ; Vaurjhtoii v. Nolle, 30 Beav. 
 3 1 ; where, however, the jnirchase was 
 made out of triist moneys. 
 
 {u) York Buildings Co. v. Macken- 
 zie, 8 Bro. P. C. 40 ; Woodltoitse v. 
 Meredith, 1 Jac. & W. 204 ; Brook- 
 man V. Rothschild, 3 Sim, 153; Jtoths- 
 child T. Brookmnn, 2 Dow. & C. 188 ; 
 Baikcr v. Harrison, 2 Coll. 546 ; 
 Charter v. Trcvehjan, 11 CI. & F. 714 ; 
 In re Bloycs Trust, 1 JIac. & G. 488 ; 
 ct vide infra, as to Solicitors and 
 Asjteuts.
 
 TO BUY OR SELL REAL ESTATE. 35 
 
 aware from the firet that his agent is heneficially interested Chap. I. 
 in the purchase (.r) : ' 
 
 An agent for the management of property ; wlio can only 
 purchase suljject to the onus of proving that he afibi'ded his 
 principal all the knowledge respecting its value which he 
 himself derived as agent {ij) : 
 
 An auctioneer employed to sell the property {z) : Auctioneers 
 
 Counsel, purchasing, below their nominal value, charges Counsel 
 upon his late client's estate (*'), upon the validity of which 
 he had advised : 
 
 A creditor of a bankrupt, wh(j has been consulted by the CreJitor 
 assignees as to the best mode of selling the estate (6) : sale : "^ 
 
 Donee of a power of sale (c) : Donee of 
 
 power : 
 
 Executors and administrators, in respect to the personal Executors _ 
 
 ■^ ^ and auminis- 
 
 estate of the deceased ((/) : trators : 
 
 A guardian purchasing Irom his waid, immediately on his Guardians : 
 coming of age ; although the piice were adequate {<') : 
 
 A mortgagee with a power of sale ; who cannot purchase. Mortgagee ; 
 
 . 1 . 1 . buying under 
 
 under the power, either ni his own name oi' thi'ough an agent, power of sale : 
 
 (.f) Wentirorlli v. Lhnjd, 32 Beav, he hai been profiissionally concerned, 
 
 4tj7, affd., Dom, Proc. 10 Jur. N. S, was set aside ; Hobday v. Peters, 28 
 
 960. Beav. 349. 
 
 {y) Cane v. Lord Allen, 2 Dow. 28-2; {b) Expartc Ilujhcs, 6 Ves. G17. 
 
 Molonij V. Kcrnan, 2 Dru. & W. 31 ; (c) See Bcadenv. Kiiifj, 9 Ha. 519. 
 
 Chambers v. Betty, Beat. 388 ; and {d) Killklc v. Flexney, 4 Bro. C. C. 
 
 see Rossilcr v. Walsh, 4 Dru. & W. IGl ; Wutsoii v. Toonc, 6 Madd. 153 ; 
 
 485 ; Murphy v. O'Shea, 2 J. & Tj. 422. Bnker v. Read, 18 Beav. 398 ; Smcdley 
 
 {z) Oliver v. Court, 8 Pri. 127, IGO; v. Varlcy, 23 Beav. 358. 
 Sug. 688; BasMt v. Cafe, 4 De G. & (c) See Sug. 691 ; and see Ohiin 
 
 Sm. 388. v. Sambourne, 2 Atk. 15 ; Mulhallen 
 
 {a) Carter V. Palmer, SL'l&V. 657 ; v. Marum, 3 Dru. & W. p. 317; 
 
 and a purchase by a .solicitor's clerk Archer v. lludaoii, 7 Beav. 560 ; Daii> 
 
 from his principal's client, for whom son v. Massey, 1 Ba. & B. 219, 282. 
 
 1) 2
 
 30 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap, I. 
 Sect. 4. 
 
 or SO arrange the transaction as to make himself the absolute 
 owner (/): nor can his agent, who has acted in surveying the 
 property and receiving the interest, purchase on his own 
 account from the mortgagee {(j) : but the rule does not apply 
 to a purchase of the equity of redemption by the mortgagee 
 from the mortgagor {h); the purchase being from its inception 
 a transaction subsequent to the loan (/) ; but if from the 
 influence of his position he purchases at an undervalue, the 
 sale may be set aside (/.) ; nor does the rule apply to a 
 purchase by a second mortgagee from a first mortgagee selling 
 under his power of sale {I), even though the second mortgage 
 may be in the form of a tiaist for sale {m) : and on such 
 purchase, if ununpeachable on other grounds, the second 
 mortgagee acquires an irredeemable title, just as if he were 
 a stranger (j;). 
 
 Mortjfagee 
 linying in 
 Ijaiikruptcy. 
 
 It was usual, although perhaps not strictly necessary (o), 
 upon a sale under the general order in Bankruptcy, under 
 the Act of 1849, for a mortgagee intending to bid, to apply 
 for leave so to do (■}>) : and l)y sect. 132 of the Act of 18G1, 
 
 (/) Robertson v. Norris, 1 Giff. 421 ; 
 Affd. on app. 4 Jur. N. S. 155 ; where 
 redemption was decreed, though fif- 
 teen years had elapsed. 
 
 (ff) Ormc V. Wri'jlit, 3 Jur. 19; In 
 re Bloycs' Trust, 1 Mac. and G. 488 ; 
 and see Downes v. Grazchrool; 3 Mer. 
 200 ; Rohcrtson v. Norris, 1 CJiff. 421 ; 
 on app. 4 Jur. N. S. 443. 
 
 (A) Wehh V. RorTce, 2 Sch. & L. G61, 
 673 ; and see Waters v. Groom, 11 CI. 
 & r. 684 ; Knight v. Marjorihanhs, 2 
 Mac. and G. 10, and cases cited ; Doh- 
 son V. Land, 8 Ha. 220 ; Sug. 689 ; 
 Gossip V, Wrlijht, 9 Jur. N. S. 592. 
 
 (/) Injra, Ch. VI. 
 
 (/•) Ford V. Holdcn, L. R., 3 E(i. 
 4(J1. 
 
 (/) ParJcinson v. Hanhury, 1 Dr. & 
 Sm. 143, 2 De G. J. &S. 450; Klrlwood 
 V. Thompson, 2 H. & M. 392, 2 De G. 
 J. & S. 613 ; Shaio v. Bunny, 33 
 Beav. 494 ; 2 De G. J. & S. 468. 
 
 (m) Kirl-trood v. Thompson, uhl 
 supra. 
 
 (n) A mortgagee cannot under the 
 colour of a mortgage detain a col- 
 lateral advantage which does not 
 strictly belong to the contract of 
 mortgage, Broad v. Sclfe, 9 Jur. N. S. 
 885. 
 
 (o) Ex parte Ashley, 1 Mon. & A. 82. 
 
 (p) See Ex parte Marsh, 1 Madd. 
 148 ; Ex parte Du Cane, 1 Buck, 18. 
 The costs of an application merely 
 for leave to bid, are, it appears, al- 
 lo-\vecl to the mortgagee only when 
 the ijctition is presented at the re- 
 (^uest of the assignees ; Ex parte 
 Coort, 7 Jur. 864 ; Ex parte Danks, 
 
 12 L. J , N. S. 45 ; Ex parte SmUh, 
 
 13 Jur. 1044. In Ex parte Fed da; 
 1 Mon. & A. 327, the Court, after the 
 sale, allowed the mortgagee to bid, 
 nunc x>ro tunc; see also Ex parte 
 Yorke, 3 M. D. & De G. 329.
 
 TO BUY OR SELL REAL ESTATE. 37 
 
 any mortgagee, with the leave of the Court first obtained, Chap. I. 
 might 1 )i(I at any sale of tlic mortgaged property. The Act of J _! 
 
 18G9 does not contain a simihir provision, Ijut, cNcn without 
 express enactment, the Court has always had power to grant 
 such leave (q) ; and the law in this respect remains unaltered. 
 In the case of a legal mortgage, it appears to have been a 
 common, although improper, practice, for the mortgagee to 
 conduct the sale (r) ; in such a case, of course,, he could not 
 purchase without the permission of the Court, which permis- 
 sion would not be given except upon very special grounds (s). 
 
 A morts'ao'or cannot purchase from his first mortgagee, Mortgagor 
 selling under a power of sale, so as to defeat the title of his first mort- 
 second mortgagee. Whether he would be similarly dis- ^'*»^'" 
 qualified if the estate were first sold to a stranger, and then 
 purchased from him by the mortgagoi', aj^peai's to be con- 
 sidered doubtful (/) ; but it is conceived that such second sale 
 could not be impeached, if it were a bond Jide independent 
 transaction. 
 
 A tenant for life, with powers of sale and leasing, may sell Tenant for 
 
 ' ^ . . . life or mort- 
 
 or lease to a trustee for himself (u) ; and this doctrine has gagor leasing 
 recently been extended to the case of a mortgagor with f,,riiiso\vu 
 power of leasing until entry by the mortgagee (x). benefit. 
 
 The solicitor or agent of a person disqualified from pur- Sijlkitor of 
 chasing, woidd, it is conceived, in general, be unal»le to ]„ucha.ser : 
 purchase on his own account (y) : 1 )ut in a modern case, under 
 special circumstances, the solicitor to a fiat was allowed to 
 purchase part of the estate (z) : 
 
 (5) Ex parte Say, 1 D. & C. 32. (x) Bevan v.Hahffood, 1 J. & H. 222. 
 
 (r) See £x 'parte Cuddon, 3 M. I). & {>j) Dou-nes v. Gmzebrool; 3 Mer. 
 
 De G. 302. 209 ; Whitcomb v. Minchin, 5 Mad. 
 
 (s) See Ex parte M'Grcgor, 4 De 91 ; In re Bhyes Trust, 1 Mac. & G. 
 
 G. & Sm. 603 ; Bellamy v. (Jockle, 18 488 ; Hesse v. Briant, G De G., M. & 
 
 Jur. 465 G. 623; ovei-ruHng V. C. S., 2 Jur. 
 
 (<) Otter V. Ld. Vaiix, 6 De G. M. N. S. 922 ; but see Alvanley v. A'//i- 
 
 & G. 638. naird, 2 Mac. & G. 17. 
 
 (m) Wilson V. SewcU, 4 Burr. Sugd. (c) Ex parte Watts, 1 De G. 265 
 Pow. 7tli e;l. ; App. p. 551.
 
 38 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 4. 
 
 Steward 
 
 A stewar.l contracting for a lease from his employer ; to 
 sustain which, he must show the fairness of the trans- 
 action {a): 
 
 Trustees, Trustees, unless merely such in name, can only pui'chase 
 
 subject to special restrictions (h): and there will be an 
 additional objection to a purchase by a trustee, if the object 
 of the trust were apparently to secure to the cestui que trust 
 a continuing control over the property (r) : 
 
 ■who have 
 
 accepted 
 
 trust. 
 
 But, of course, the mere fact of a person having been named 
 as a trustee will not aftl-ct his capacity to purchase, if he 
 decline the trust c/ 6 initio; and it is not essential that he 
 should execute a deed of disclaimer {d) : 
 
 Security by 
 way of tru=^t 
 for sole. 
 
 It seems probaljle that a person a<lvancing money upon a 
 security which takes the form of a conveyance to himself in 
 trust to sell, instead of an ordinary mortgage, would for the 
 purpose of the above rule be considered a mortgagee and not 
 a trustee {(^. If, however, the conveyance be to a third 
 person, he is a trustee for both parties (J), and incurs the 
 disability of a trustee. 
 
 Incompetent But, in all the aliove cases, the transaction is binding on 
 
 bouS"!? the purchaser {(j) ; and voidable merely at the option of the 
 
 option of parties orio-inaUy interested in the property, or their represen- 
 
 partie.s •'• o ./ 
 
 interested. tatives (/<). 
 
 On the other hand — 
 
 (rt) See Lord Sehey v. Rhoades, 2 
 Sim. & St. 49 ; 1. Bli. N. S. 1. 
 
 (l) As to which, vide infr'', Ch. IT., 
 sect. 5. 
 
 (c) Scott V. Dails, 4 Myl. & C. 87, 
 90. 
 
 (d) Staccu V, Elph, 1 Myl, d: K. 
 195. 
 
 (e) See Waten v. Groom, 11 CL 
 
 & F. 6S4 ; Dolson v. Land, 8 Ha. 
 220 ; and see KtvTcvood v. Thomson, 
 2 H. & M. 392 ; 2 De G. .7. & S. 613. 
 
 (/) Blennerhasset v. Day, 2 Ball & 
 B. 133. 
 
 {rj) See Sanderson v. ^Yall■er. 13 
 Ves. 603. 
 
 (7() Tate V. Williamson, L. R. 1 Etj. 
 .o2? ; L. R. 1. Ch. Ap. 56.
 
 TO BUY OR SELL REAL ESTATE. 39 
 
 An execution creditor may buy the propei'ty sold under the Chap. I. 
 execution (/): 
 
 Execution 
 creditor 
 
 A solicitor is under no positive disability to pui'chasu from ^^y W- 
 his client wliere the relation does not exist between them in chases by 
 tlie particular transaction, and he deals with him at arm's solicitors, 
 length (/■) : yet where the confidential relation subsists, and the 
 transaction is impeached, he must be able t(^ prove its fair- 
 ness ; and that either the circumstances were such as not to 
 impose upon him the duty of advising the client, or that he 
 gave the client all the information respecting the subject of 
 the purchase which he himself possessed, and advised him as 
 diligently as he would or ought to have done, had the trans- 
 action been IjetAveen tlie client and a stranger (l) : and that 
 the sale was as advantageous to the client as it w^ould have 
 been if the solicitor had used his utmost endeavours to sell 
 the property to a stranger (?)i) ; but he need not have pointed 
 out a merel}^ sj)eculative advantage, (such as the possibility 
 of an implanned, though contemplated railroad, running near 
 the property,) which might be reasonably supposed to be 
 equally in the knowledge of both parties (??) : nor does the fact 
 of the consideration having in part consisted of costs already 
 incurred (o), or of a judgment vested in the solicitor (p), 
 necessarily invalidate the transaction (o) : although the 
 mere fact of the client being indebted to the solicitor is an 
 unfavourable feature in the case, on account of the additional 
 
 (t) Stratford v. Tonjman, Jac. 418. /i'((c/(/ v, Scmll, 4 Jur. 882, C. ; 
 
 {k) Johnson v. Fesemeyer, 3 DeG. & Thomas v, Phillips, 11 Jur. 80 ; Up- 
 
 Jo. 13, 22 ; where the solicitor was an xtington v. Bullen, 2 Dru. & W. 184, 
 
 urgent creditor. See remarks of Lord 187 ; Bellamy v. Sabine, 2 Ph. 42r» ; 
 
 Eldon, 2 Dow's Hep. 299. Salmon v. C'utts, 4 De G. & S. 12.") ; 
 
 (l) See Ilolman v. Loynes, 18 Jur. affirmed, 16 Jur. 623 ; King v. Savery, 
 
 839 ; 4 De G., M. & G. 270 ; Barnard 1 Sm. & G. 271 ; Savery v. King, 2 
 
 V. Hunter, 2 Jur. N. S. 1213. .Tur. N. S. 503 ; 5 H. L. Ca. 627 ; 
 
 (m) Denton v. Donner, 23 Beav. Wright v. Vanderplanl; 2 Jur. N. S. 
 
 285. 599 ; 2 K. & Jo. 1 ; Coohson v. Lee, 
 
 (ji) See Edwards v. Meyricl; 2 Ha, 23 L. J. 473, Ch. 
 60, where the earlier cases are cited (o) Edwards v. Meyricl; ithi suprd : 
 
 and reviewed, and Ilolman v, Loynes, aliter as regards future costs ; Up- 
 
 18 Jur. 839 ; 4 De G. M. & G. 270 ; pington v. Bullen, 2 Dru. & W. 184. 
 also Ward v, Ilartpole, 3 Bli. 470; {p) Spencer x.Topham, 22 V,ca.\. 51 Z.
 
 40 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. influence wliicli it must necessarily have created. So, too, the 
 
 _?!!^: fact of the consideration being secured only by the solicitor's 
 
 bond or covenant (q), or of the client being in emljarrassed 
 circumstances, and ha\^ng no independent professional 
 advice (r), are ^'ery material circumstances in judging of the 
 validity of the transaction: and it has been held that a 
 solicitor, taking a security from his client, must prove the 
 actual advance of money by some other evidence than 
 the instrument creating the security (.s). And where the 
 solicitor, who was himself the mortgagee, purchased the 
 equity of redemption from his client, who had no separate 
 legal advice, the conveyance w^as ordered to stand merely 
 as a security for the money advanced, and the Court refused 
 to import a poAver of sale into the transaction (t) ; and a 
 solicitor will not be allowed as against his client to make a 
 secret profit out of a transaction in which he is profession- 
 ally concerned for him (u). But except in cases of undue 
 influence resulting from other professional connections, the 
 rule does not extend to prevent a purchase, by a solicitor, of 
 his client's property in respect to which he has not been 
 professionally employed (x); or to prevent his purchasing 
 Tjy auction his client's propei-ty if he have not acted for 
 him professionally in respect to the sale (y). But when a 
 solicitor has once advised upon an intended sale of his 
 client's property, there is a difticiflty in holding that any 
 mere lapse of time can get rid of the fiduciary relation (0). 
 The mere employment of another solicitor to peruse the 
 draft conveyance on behalf of his client, no advice 
 being aftbrded respecting the terms of the arrange- 
 ment, will not be sufficient to validate the transac- 
 
 (2) Waters V. 2'horn, 22 Beav. 547. [!/) Austin v. Chamhers, 6 CI. and F. 
 
 (?•) Grcsley v. Mouslcy, 4 De G. & 1 ; Laurance v. Galsiivrthy, 3 Jur. 
 
 Jo. 78. N.S. 1049. 
 
 (s) Gresky v. Mousley, 3 De G. F. {z) See Holmctn v. Loynes, 18 Jur 
 
 & J. 433. 839, 842 ; Gihbs v, Danicll, 9 Jur. 
 
 (0 Pearson v. Benson, 28 Beav. N. S. 636 ; Lord Clanricarde v. Ilen- 
 
 598. nln'j, 7 Jur. N. S. 1113 ; and as to 
 
 (m) Banl: of London v. Tyrrell, 27 voluntary gifts, Tomson v. Judge, 3 
 
 Beav. 273 ; 10 H. L. Cas. 26. Drew, 30G. 
 
 (.r) 2 Y. and C. 520 ; 2 Ha, 6.
 
 TO BUY OR SELL REAL ESTATE. 41 
 
 tion (((); and where a purchase by a solicitor from his late Chap. L 
 
 client is defended on the ground that the client had other ' 
 
 professional assistance, it must be shown that the solicitor, 
 who intervened, was fully informed as to the state of the 
 vendor's affairs, and the value of the property (h). A sub- 
 se([uent gift of the property to the attorney by the client 
 will not validate a previous voidable sale to the attorney, 
 unless it is sufficiently clear that the client was aware of 
 its voidability (c). Where the purchase is fair at the time 
 when it is made, and the transaction is unim2:)eachable on 
 other grounds, the mere circumstance of the solicitor having 
 subsequently resold at a profit, is not material ; and a 
 trifling deficiency in value, such as may reasonably be 
 considered an equivalent for immediate payment, and for 
 the risk and expense of an ordinary sale, is not sufficient to 
 invalidate the transaction ((?). 
 
 The rule which disci ualifies a solicitor from purchasing; from Purchase 
 
 ^ . . '^. liy clerk of 
 
 his client, pending the relation between them in tlie particular solicitor. 
 transaction, applies also to his clerk, who has been profes- 
 sionally concerned for the client (e). 
 
 The son or otlier relation of a trustee or other disqualified Relation of 
 
 disqualified 
 
 person, may purchase hoad fide on liis own account ; and, purchaser, 
 although, when a trustee sells to a relation, the relationship is 
 calculated to excite a suspicion, which, if confirmed by any 
 other circumstance, it would require a very strong case to 
 remove (J), the Court will, in the absence of fraud, even decree 
 specific performance at the suit of the purchaser (/y). 
 
 A^ tenant for life under a settlement, whose consent is Tenant for 
 
 life on sale by 
 
 (a) Kinrf v. SaverT/, 1 Sm. and G.271, G. 623. 
 
 311 ; Safcri/ v. Khirj, n H. L. Ca. 627, (d) Spencer v. Topham, 22 Beav. 573. 
 
 2 Jur. N. S. 5QS. (e) ILMay v. Peters, 28 Beav. 349. 
 
 {h) Gibhs V. Daniel, 9 Jur. N. S. (/) See Ferrahif v. Hohson, 2 Ph. 
 
 G36. 201. 
 
 (f) Waters v. Thorn, 22 Beav. 547 ; (</) Sug. 692; See Coles v. Trero- 
 
 where the gift was by will ; and com- thick, 9 Ves. 234. 
 pare Stump v. (^'ahy, 2 De C!. INI. &
 
 42 
 
 RESTRICTIONS OX GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 4. 
 
 trustees with 
 his consent. 
 
 requisite to the exercise of a power of sale l)y the trustees, 
 may, nevertheless, purchase from them under the power (//) : but 
 this is an avowed exception from the general rule; and Avas so 
 decided by Lord Eldon, on the ground of its being dangerous 
 to inisettle the practice of conveyancers (/) ; but, although 
 the power of consenting to or requesting a sale by the 
 trustees may l)e regarded as given to the tenant for life, 
 for his own benefit, and not as constituting any fiduciary 
 relation, he is not, it woidd seem, in the same position as a 
 strano-er as regards the al)sence of obligation to communicate 
 what he knows respecting the value of the property (/•). 
 
 As to pur- 
 chase by 
 trustees. 
 
 A trustee may either simpl}-, though expressly, hold the 
 property in trust for others ; or, although not nominally a 
 trustee, he may yet owe duties to others in respect of it which 
 in\est him with a fiduciary character in the contemplation 
 of the Court ; or he may actually hold it in trust to effect 
 a sale. 
 
 So his cestui que trust may be either sni juris, or the 
 contrary, — as infants, married women, &c. &:c. 
 
 Dry trustees 
 may purcha.?e. 
 
 It does not appear that the rule against purchasing affects 
 mere dry trustees ; <?. r/. : a trustee to preserve contingent 
 remainders (?), or (it is conceived) a trustee to bar dower, 
 or of a term for years assigned to attend the inheritance, 
 or of a mere outstanding legal estate, or, in fact, a trustee 
 of any description who cannot possibly derive in the trans- 
 action any advantage from his fiduciary character (m). 
 
 Tnistees for 
 sale. 
 
 It is often said that though an ordinary trustee may pur- 
 chase trust property from his Cfstuis que trust, a trustee for 
 sale cannot do so (v) ; l)ut it is conceived that the truemean- 
 
 (A) Hoimrd v. Durune, Turn. & 
 R. 81. 
 
 (/) Turn, and R. 80 and 57 ; 3 Rufr. 
 432. 
 
 (Z) TJlcronsou v. T(tU>ol, L. R., (3 Ch. 
 Ap. 32, 37, 38. 
 
 (I) 11 Ves. 22G. 
 
 (m) See 1 Sim. & S. .')()7. 
 
 (;() Devton v.I)onner,2?j Beav. 290 ; 
 LvJI V. Lord, 34 Beav. 220 ; and see 
 Franks v. Lulluns, L. R., 3 Ch. Ap. 
 717.
 
 TO nUY OR SELL REAL ESTATE. 43 
 
 ing of the rule is, that a trustee for sale may not unite in Chap. T. 
 himself the character and perform the functions both of buyer ' 
 
 and seller ; or, in other words, purchase from himself, instead 
 of from his cesttiU que trust. When the purchase is from 
 the cestids que trust, and the sale is not conducted, either 
 directly or indirectly, by the trustee for sale, the transaction 
 may stand ; but in every dealing between cestiiis que trust 
 and their trustee, whether he is a trustee for sale or a mere 
 ordinary trustee, the burden of proving the propriety of the 
 transaction, and that no advantage was taken of the cestuis 
 que trust, is thrown upon the trustee (o),and the relationship 
 between them should, in respect at least to the subject matter 
 of the transaction, bo actually, or virtuall}", dissolved. 
 
 A husl)and may become a purchaser from his wife of pro- Husband may 
 , , . , / s buy of wife. 
 
 perty belonging to her {p). 
 
 Nor is a person wlio comes within the restrictive rule in its Purcha.se by 
 milder form, incapable of purchasing from his crslais que trust h-omnfititis que 
 or employers, &;c., if they be sui juris (q) ; l)ut, in any such '!'^||[j' ^^ 
 case, the Court looks at the transaction with a jealous eye (/•) ; 
 and the question to be determined is, not whether the price 
 is fair, but whether the purchaser, having held a confidential 
 situation, previously to the purchase, has at the time of the 
 purchase, shaken off that character, by the consent of the 
 other parties, freely given, after full information, and has 
 bargained for the right to purchase (.s). 
 
 So, where the sale by auction is in feet conducted 1 )y the ^""Y •'! ^f f ^J 
 
 ' '' -^ cestui g^ue trust. 
 
 cestui que trust, a purchase at an adequate price by the trustee 
 for sale, may, perhaps, be supported (t). 
 
 In the case of a trust for the benefit of ci'editors, it is Purchase by 
 
 crcditurs' 
 
 (o) Liifv. Lord, 34 Beav. 220. G91 ; see Murplnj v. O'Shea, 2 J. & 
 
 (p) Ilcutson V. Neyu!^, IG Beav, L. 422, 429. 
 598. (••<) See Ex parte James, 8 Ves. .j;".3 ; 
 
 (q) See Coles v. Trccothirl; 9 Ves. Denton v. Donncr, 23 Beav. 290. 
 244 ; Randall v. Errin'jlon, 10 Vch. {t) See Coks v. Trcrothiel; 9 Ves. 
 
 426. 234, and compare Lujle v. Ruluirds, 
 
 (;•) DdvJdson V. Gardner, Sugd. 28 Beav. 361.
 
 44 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Cliap. I. 
 Sect. 4. 
 
 trustee, with 
 consent of 
 majority, 
 invalid, semhlc. 
 
 Solicitor 
 cannot consent 
 for cedu't que 
 trust. 
 
 Resignation 
 of trust 
 immaterial. 
 
 Secret 
 purchase. 
 
 Piu'cbase 
 imder decree. 
 
 doubtful whether the consent of the majority will bind the 
 minorit}^ so as to render valid a purchase by the trusteee for 
 sale (h). 
 
 The solicitor of a cestui que tnixt has no general authority 
 to authorize a purchase by the trustee (./■). 
 
 A trustee cannot get rid of his incapacity l)y resigning the 
 trust or confidential situation ; for he would still retain the 
 knowledge he had acquired Avliile in oftice (,?/). 
 
 And the circumstance of a trustee or agent purchasing 
 secretly in the name of a third person is indicative of fraud 
 and the sale will, as a general rule, on that ground be set 
 
 aside {z). 
 
 Where the ceatiiis que trust or any of them are not sul 
 juris, a purchase by a trustee, who comes within the 
 restrictive rule, can be safely effected only under an order of 
 the Court; wdiich order will not be made unless to the 
 evident advantage of the trust (a) ; and it is presumed that 
 he would have to pay the costs of the suit. A purchase by a 
 trustee, made without this precaution, cannot be supported 
 even by evidence of the best possible terms having been 
 secured for the cestwis que trust (6). 
 
 We may next consider the natiu-e of the risk incurred 1 )y 
 le trustee or other person purch 
 incapacity of the second description. 
 
 Risk incurred 
 
 by disquali- , ,, ^ • ^ •^ ^ 
 
 fied purchaser, the trustee or other person purchasnig while luider any 
 
 (i() See Lord Eldon's remarks, 6 
 Ves. 628 (and see 630, n. (i), on 
 WJidjxlak V. C'oolson, 1 Ves. S. 9, 
 cited in Camx'Ml v. Walker, 5 Ves. 
 682 ; Ex i^arte Beaumont, 1 Won. & 
 Ayr. 304 ; and Siig. 692 ; but see also 
 Ex farte Burje, 4 Madd. 459. 
 
 (x) Dounes v. Grazchrooh, 3 Mer. 
 209. 
 
 ()/) 8 Ves. 352 ; and see Carter v. 
 Palmer, 8 CI. & F. 657 ; Sprbuj v. 
 
 Pvklc, 12 W. R. 892 ; 10 Jur. N. S. 
 646. 
 
 (:) Lord Hanlir'tcl: v. Vernon, 4 
 Ves. 411 ; III re Bloycs' Trust, 1 Mac. 
 & Ct. 497 ; S. C. nomine, Lewis v. 
 Ilillman, 3 H. L. C. 607, 630 ; Infjle 
 V. lUthards, 28 Beav. 361, 
 
 (a) See drmpbell v. Walker, 5 Ves. 
 681 ; Farmer v. J)can, 32 Beav. 327. 
 
 {h) Alercleeii i?. Co. v. Blalkie, 1 
 Macq. H. L. C. 472 ; 2 Eq. R. 1286,
 
 TO BUY OR SELL REAL ESTATE. 45 
 
 He may, on the re({uisition of any of his cc'sfuAS que trust — Chap. I. 
 
 inckiding in this general term all persons interested in the '^_ 
 
 estate before the sale (c) and their representatives — be 
 compelled, 
 
 1st, To reconvey the estate, supposing he have not resold He may be 
 
 forced to 
 it ((() : reconvey ; 
 
 Or, 2ndly, To let it be put up for sale, and to reconvey to or let estate 
 
 iJG rcsolcl ' 
 
 another purchaser, if a better can be found ; but if not, to 
 keep it (e) : 
 
 Or, 3rdly, If he have resold it at a profit, to account for "i* t" account 
 
 / for profit if ho 
 
 such profit (/) : has sold. 
 
 And a sub-purchaser or mortgagee, buying oi- lending with Sub-purchaser 
 
 ^ . . . . with notice 
 
 notice of the circumstances ci'eatmg the incapacity in the is similarly 
 
 original purchaser, is in the same predicament, if tlie original 
 
 sale be impeached (.7) ; although it seems probable that, if 
 
 the case be merely that of an avowed purchase by a trustee 
 
 from his ceatv/is que trust, a sub-purchaser or mortgagee would 
 
 not be liable unless he had notice of circumstances rendering 
 
 it voidable in Equity (h). In many doubtful cases, his 
 
 security would practically depend upon his having the legal 
 
 estate. 
 
 In the first of the above cases, the purchaser will be '•'f^'"'' "^"^" 
 credited with his original purchase-money and intei-est at £4 veyance is 
 
 1111.. ■ 1 . decreed : 
 
 2)er cent., and all sums expended by hnn in substantial im- 
 provements (unless he have been guilty of actual fraud) (/), 
 
 (c) See Ex parte Mor<jan, 12 Ves. 6. man v. Rotksvldld, o Sim. 150 ; Jiotks- 
 
 (d) 6 Ves. 627 ; and sec Ilamdton chdd v. Ihvokmau, 2 Dow. & U. 
 V. WriijU, 9 CI. & r. 123. 188. 
 
 (f) Ex parte Reynolds, 5 Ves. 707; (<j) Cuokaon v. Lie, 23 L. J. 473, 
 
 Exparte Hufjhes, 6 Ves. 617 ; Randall Ch. 
 
 V. Errin/jton, 10 Ves. 428. (/;) See Suy. 69.5. 
 
 (/) Fox V. Mackreth, 2 Bro. C. C. {i) Baii;jh v. Pr'iec, 1 WiLs. 320 ; 
 
 400, and cases' cited in last note ; the sec ITokcH v. lIonxJl, 2 Myl. & C. 
 
 rule is the same although, as in the 478 ; and Turner v. Trclavnij^ 12 
 
 case of shares, stock, &c., similar pro- Sim. 49. 
 perty can be purchased ; see Brook- 
 
 Accounts :
 
 4C 
 
 BESTRICTIONS OX GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 4. 
 
 Must reconvey 
 ;it once unless 
 decree gives 
 bim a lien for 
 balance due. 
 
 Must produce 
 deeds. 
 
 Terms of 
 resale. 
 
 (as, in one case, Ijuildings erected, and inclosures made) (/.), 
 or in repairs (J) ; and inteiest from the time of the advances ; 
 and will be debited with rents received by him, an occupa- 
 tion rent for any part occupied by liimself (m), and his 
 receipts for the sale of tind:er, kc, with interest ; and also 
 with the estimated amount of deteriorations (if any) (n). 
 
 In making the above estimates, buildings pulled down 
 will, if incapable of repair, be valued as old materials, but 
 otherwise as buildings standing (o). 
 
 If nothing be due to him, he must, of course, give up his 
 purchase without receiving any further consideration (ji)- 
 
 Where the decree directs a reconveyance, and an account, 
 and payment of the balance to the purchaser, but does not in 
 terms give him a lien for such balance upon the estate, the 
 reconveyance must be made at once, without waiting for the 
 accounts (q). And a solicitor purchasing from his clients, 
 who were trustees for sale, has been compelled to produce the 
 title deeds before payment, although he alleged that the 
 early title was defective, and on that ground resisted the 
 exposure (r). 
 
 The estate, if put up for resale, will be put up at the 
 amount of balance due to the purchaser, ascertained as just 
 mentioned (.s), and, if there l)e no advance, he must keep the 
 estate ; in a modern case, where permanent improvements 
 had been made, it was put up at its improved value, subject 
 to the question whether he should be allowed the amount of 
 such improvements (f). 
 
 (1-) York Baildinys Co. v. Mac- 
 Ixitzic, 8 Bro. P. C ; see pp. 5(3 and 
 71. 
 
 {/) Ex parte IfinjJies, G Ves. 617. 
 Necessary repairs are allowed for, 
 even in cases of fraud ; 1 Wils. 322. 
 
 (m) Ex parte Jamea, 8 Ves. 351. 
 
 (n) Ex parte Benndt, 10 Ves. ; see 
 p. 401. 
 
 (o) Robinson v. Lldlcy, 6 Madd. 2. 
 
 (p) (I'rctnhiiv v. Kiiif/, 3 Beav. 63. 
 
 (9) Trcvcljan v. Charter, 9 Beav. 
 140. 
 
 {r) Shallcross v. Weaver, 12 Beav. 
 272 ; 2 H. & Tw. 231. 
 
 (s) Vide siqmi, p. 45; Ex p)artc 
 Ifdijhes, 6 Ves. 617. 
 
 (0 \yiUiamson v. Scaler, 3 Y. & 
 C. 717.
 
 TO BUY OR SELL REAL ESTATE. 47 
 
 In the case of a resale, the cestaifi que trw^t cannot, if the Chap. I. 
 estate were bought in one lot, insist on its being put up in ___!1^1^ 
 
 several lots (rt), nor, it is conceived, allotted otherwise than I'^^tate not 
 
 re-allotted. 
 
 as it was bought ; to effect the change they must take it off 
 the purchaser's hands on the terms we have already men- 
 tioned (.'■). 
 
 The third rule would extend to a i)urchaser who, by sale of Turchaser 
 
 '■ _ ■' must account 
 
 wood, minerals, &c., had more than rejDaid himself his pur- for the 
 chase-money, expenses, and interest (.y) ; or who liad made a from him. 
 similar profit by merely letting the projDerty (which in the 
 case of unexpected public improvements might often easily 
 happen in the course of a few years, although the original 
 price were perfectly fair) ; it is apprehended, tliat, in either of 
 these cases, he would have, not only to reconvey, but also to 
 pay the balance found due from him (s). 
 
 If, in any of the above cases, the purchaser has paid pur- Variations 
 chase-money into Court, and it has been invested, he will payment into 
 neither gain nor suffer by a rise or fall in the funds (c). <-o"it. 
 
 Of course, if the ccstaii que ti'asf, on beini' made co'-iiisant ^^ ccstnis que 
 
 J- ' o o ^,.^^gt, decline, 
 
 of the facts, decline to adopt the jDurchase, the trustee may trustee may 
 retain the benefit of it, however advantageous it may be (6). benefit' of the 
 
 purchase. 
 
 And, as a general rule, a trustee, though free from fraud. Costs. 
 must pay the costs of a suit occasioned l)y his impi-oper 
 dealing with the estate (c) : such is the almost invariable 
 practice where the cesfitls que trust are infants (<l) ; in other 
 cases, however, the rule is sometimes relaxed where the 
 trustee is free fr(jm all moral blame (e) ; and in one instance 
 it would seem that he was even allowed to receive a sum on 
 account of costs (/). 
 
 {ii) 8 Ves. 351. {/,) Barn-dl v. L'anrcU, 3i Beav. 
 
 (x) Siqyrd, p. 46. 371. 
 
 (!/) York Buildlnrjs Co. v. Mac- (f) Sug. 695. 
 
 (^■f«r/c, 8 Bro. P. C, see p. 71. {d) See Sanderson v. Walker, 13 
 
 (:) S. C. ; and see 6 Ves. 622, and Vos. 601. 
 
 the decree in Necsom v. Clnrlson, 2 (c) Baker v. Curler, 1 Y. & C. 250. 
 
 Ha. 176 ; 4 Ha. 07. (/) See iJouncs v. Urazcbrook, 3 
 
 (a) 8 Ves. 351. Mcr. 200.
 
 48 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 4. 
 
 Time allowed 
 for impeach- 
 in <' -sale. 
 
 Classes more 
 favoured than 
 individuals. 
 
 Mere lapse of time, except where it is a stattitory or positive 
 bar to relief, is only evidence of acquiescence {g) : but a cestui 
 que trust wishing to impeach a sale must do so within a 
 reasonable time (A) ; which, as a matter of fact, is generally 
 less than the time allowed by the Statute of Limitations (/): 
 though independently of statutory limitation, no positive 
 limit of time can be imposed, and each case must be governed 
 by its own circumstances (/».■). A delay of eighteen years 
 has been held to be an implied confirmation of the trans- 
 action (/): ten years have been allowed in the case of an 
 individual (rii) ; and twelve in the case of creditors (n) : but 
 the general tendency of modern decisions and of recent 
 legislation is to increasingly discourage stale demands ; and 
 where there are other circumstances, shewing acquiescence, 
 beyond the mere lapse of time, a short delay will be a 
 sufiicient bar to relief (o). A longer time, however, is allowed 
 to a class of persons, e.y. creditors, than would be allowed to 
 an individual (2>). 
 
 From what And time will not run against a cestui que trust until he 
 
 period time ,..,,-, 
 
 begins to run. be sui juris (q), and aware that the trustee was improperly 
 the purchaser (r) : noi' will it, in general, lun against him, 
 so long as his interest is contingent, or i-eversionaiy («), or (in 
 
 ig) Life Association of Scotland v. 
 Skldall, 7 Jur. X. S. 785. 
 
 (h) 1 Jac. & W. 59 ; Lord Sebe)/ 
 V. JUioadcs, 1 Bli. N. S. 1 ; Pu'dd y. 
 Savell, 4 Jur. 882, C. ; Jicadcn v. 
 J{in>/, 9 Ha. 532 ; Baler v. Bead, 18 
 Beav. 398 ; affirmed, 3 W. R. 118. 
 
 (/) See Morse v. Iloi/al, 12 Ves. 
 374. 
 
 {k) Per L. J., Turner in (ircslcy v. 
 Mousley, 4 De G. & Jo. 95. 
 
 (0 Grcjorij v. Grcrjorij, G. Coop. 
 201 ; Jac. 631 ; Champion v. Illghy, 
 
 1 Russ. & M. 539 ; Purcell v. Kdhj, 
 Beat. 492, 501 ; Harcourt v. Wliitc, 
 28 Beav. 303 ; Baruell v. BanccH, 34 
 Beav. 375 ; See too Scagramv. Knight, 
 L. R. 3 Eq. 398 ; varied on app. L. R. 
 
 2 Ch. Ap. 628 
 
 (Hi) Ilfdl V. Noijes, cited 3 Ves. 
 748. 
 
 {n) Anov., cited 6 Ves. 632. 
 
 (o) Wright v. Vunderplank, 2 K. 
 & Jo. 1 ; 7 De. G. M. & G. 597. 
 
 ip) Whichcote v. Laurence, 3 Ves. 
 740 ; York Buildings Co. v. Mac- 
 kenzie, 8 Bro. P. C. 42. 
 
 (q) Lewin on Trusts, 370 ; Camp- 
 bell v. Walker, 5 Ves. 678, 682; 
 Randall v. Errington, 10 Ves. 427 ; 
 Morse v. Royal, 12 Ves. 373. 
 
 (r) Chalmer v. Bradley, 1 Jac. & 
 W. 51 ; Charter v. Trevelyan, 11 CI. 
 & F. 714. 
 
 (a) Gouiand v. De Faria, 17 Ves. 
 20 ; Duke of Leeds v. Lord Amherst, 
 2 Ph. 117 ; Bennett v. Colic y, 5 Sim. 
 181 ; Bouen v. Evans, 1 Jo. & L. 178 j
 
 TO BUY OR SELL REAL ESTATE. 49 
 
 particular) dependent on the will of the purchasing trustee, or Chap. i. 
 
 Sect. 4. 
 
 of a party implicated in the breach of trust (f) : for in the 
 former case he has no adequate motive for incuiiing the 
 expense of attempting to impeach the sale, and in the latter 
 he is under a direct inducement not to do so : hut, though he 
 is not bound to assert his title until it comes into possession, 
 the mere circumstance of his interest being reversionary does 
 not make him incapable of assenting to a breach of trust (u.) ; 
 and though the rule is, that the onus lies on the party relying 
 on acquiescence to prove the facts from which the consent 
 of the cestui que frud is to be mferred, yet there may well 
 be cases in which, from great lapse of time, such facts ought 
 to be presumed (,/•). 
 
 It does not appear that his poverty is in itself an excuse 
 for laches {y) : although it would, probably, have an effect 
 upon the Court if united with other circumstances (2). 
 
 A cestui que trust may confirm a voidable purchase by his Confinn?,tiyn 
 trustee, kc. ; but to make his confirmation binding, he must purchase. 
 be sul juris (a), fully aware of the material facts (h), of his 
 right to impeach the transaction (c), and of the legal con- 
 sequences of his confirming it ((?) : he must be under no undue 
 influence (e), the confii'mation must be a solemn and deliberate 
 act (/), free from any pressure resulting from the oiiginal 
 
 Jtoherts v. Tunstall, 4 Ha. 257 ; Broicn (h) Chdmcr v. Bmdlcy. 1 Jac. & 
 
 V. Cross, 14 Beav. 105 ; Hope v. W. 51 ; see Wadderharn v. Waddcr- 
 
 Lvldell, 21 Beav. 183 ; Life Assncia- burn, 4 Myl. and C. 41 ; ,^koUowc v. 
 
 tlon of Scotland v. Siddall, 7 Jur. N. Wdlinms, 3 De G. F. and Jo. 535. 
 
 S. 785. ('•) 1 P. Wms. 727 ; lioche v. 
 
 (t) Rohcrls V. TanslaV, 4 Ha. 257. Olirkn, 1 B. & B. 330, 340 ; Dvn- 
 
 {u) Life Association of Scotland v, bar v. Trcdcanicl; 2 B. & B. 317 ; 
 
 Siddall, 3 Uc G. F. & Jo. 58 ; and Marker v. Marker, 9 Ha. 16. 
 
 see remarks of L. J. Turner im judg- {d) Cockcrcll v. Cholmeloj, 1 Ivuss. 
 
 ment mi5;-0K/t V. CVoss, 14 Beav. 105. & M. 425; Murray v. Palmer, 2 
 
 («) Per Lord Cam^lcll in Life Sch. & L. 4S6. 
 
 Association of Scotland v. Siddall, ubi (() Lowin on Trusts, 372. 
 
 supra. (/) Carj'cntcr v. Jlcriul, 1 Ed. 338 ; 
 
 (i/) S. C. see De Montmorenci/ v. Dcvcrcux, 7 
 
 (:) Grccjorrj v. Grcyori/, G. Coop. 201 ; CI. & F. 188 ; Salmon v. Cutts, 4 De 
 
 and see Oliver v. Court, 8 Pri. 168. G. & S. 125 ; affirmed, 16 Jur. 623 ; 
 
 («) Campbell v. Walker, 5 Vcs. 678, Great Luxemburg II. Co. v. Ma'jjm;/^ 
 
 682. 25 Beav. 586 ; -where pending a suit 
 
 VOL. I. E
 
 50 
 
 RESTRICTIONS ON GENERAL CAPACITY 
 
 Chap. I. 
 Sect. 4. 
 
 tiansaction (//), and, in the case of a plurality of ccsfiiis que 
 ti'U'Sf, it must, to be eficctual, be the act of all (Ji), as a 
 nuijoiity cannot bind the minority ; not even in the case of a 
 public company, in respect to matters not so provided for by 
 the deed of settlement (/). 
 
 A married 
 woman may 
 bind hert^clf 
 by acquies- 
 cence as 
 regards her 
 separate 
 estate. 
 
 A married Avoman may, as regards her separate property, 
 not subject to any restraint against anticipation, bind herself 
 by acquiescence, just as if she were a feme sole (k) ; but 
 whether she can do so Avhen she is restrained from anticipa- 
 tion, appears to have been questioned. In one case (f), in 
 which, however, it was not necessary to decide the point, 
 L. J. Turner doubted whether the restraint against alienation 
 would protect a married woman against the rules of the Court 
 as to lapse of time and ac({uiescence ; and after remarking 
 that the fetter was imposed for her protection against her 
 husband, and that it prevented her from disposing of her 
 interest, stated that he was not prepared to say that it 
 exonerated her from the oljligation of asserting, within a 
 reasonable time, any claim which she might be entitled to 
 advance ; but a married woman who is restrained from aliena- 
 tion is not merely protected against the acts of her husband, 
 but is also generally precluded from disj^osing of her separate 
 estate during the coverture ; and to hold that she is capal;»le 
 of acquiescing in a breach of trust, which may lessen or pi'e- 
 judice her estate, seems inconsistent with the scope and 
 Avorking of the restraint on alienati(»ii. In one case (h<), 
 the protection afforded by this i-estraint has been carried so 
 
 impeaching the purchase by the 
 trustee, the cestuis que trust sold 
 the property. See also Scottowe v. 
 Williams, uhi suprd. 
 
 (g) Crowe v. Ballard, 3 Bro. C. 
 C. 117; Wood V. Dowries, 18 Ves. 
 128 ; Wiseman v. JJealc, 2 Vern, 
 121 ; Scott V. Z»a!7s, 4 Myl. & C. 92; 
 and cases cited supra. 
 
 (A) 6 Ves. 628 ; Tommcij v. White, 
 3 H. L. C. 49, 
 
 (!) Clay V. Poifford, r, De G. & S. 7G8. 
 
 (k)'Jo»cs V. I/if/f/ins, L. R. 2 Eq. 
 
 5 OS ; the dicta of the I\I. R. in Davics 
 V. Hod(json, 25 Beav. 187, if meaning 
 more than this, viz., that a married 
 ^\■oman cannot impeach for her own 
 benefit her own fraudulent act, are 
 not reconcileable with the later 
 authorities. 
 
 (7) Derhishire v. Home, 3 De G. 
 M. & G. 80, 113 ; but see Davics v. 
 JIo(hjson, (dji sujira ; Clive v. Careio 
 1 .T. & H. 205. 
 
 (?») Clire V. Carcw, 1 J. & H. 205.
 
 TO BUY OR SELL REAL ESTATE. 51 
 
 far as to exempt the separate estate still in the hands of the Chap. I. 
 trustees from liability to replace other separate estate com- ^'''^^' ^' 
 prised in the same settlement, and which the married woman 
 had fraudulently disposed of 
 
 But in a case falling within the Married Women's Pro- rower to cli.s- 
 perty Act, 1870 (n), the Court can, it seems, remove the ^en«e^yitll 
 
 ' the restraint 
 
 restraint against alienation, so as to make the separate nro- under 33 & 31 
 
 Vict c 93 
 perty ot a married woman available for her antenuptial 
 
 debts (o). 
 
 We may lastly here remark, that conduct, or language, on Acquiescence 
 the part of a cestui que trust who is sui juris, and which, had f."'^ confirma- 
 
 ■* ^ ' > ' tion distin- 
 
 it occurred upon, or previously to, the conniiission of the g"i«hea. 
 breach of trust, might have amounted to accjuiescence, and 
 have precluded him from all right of complaint, may, if it 
 occur subsequently to the breach of trust, be wliolly insuffi- 
 cient to confirm the transaction, or to release the trustee 
 from liability (/>). 
 
 (n) 33 & 34 Vict. c. 93, sec. 12. 123, and riulUpsou v. Gatt>/, 7 Ha. 
 
 {o) t<(unjcr V. Sa»r/er, li. 11.11 Eq. 51(5; Life Aatiociatiun of ."Scotland v. 
 
 i70. Siddill, 3 De U. F. & J. 58. 
 (/>) 5 Myl. & C. 218 ; and see 2 Th.
 
 52 
 
 Clicapter II. 
 
 CHAPTER 11. 
 
 AS TO SALES AND PURCHASES BY FIDUCIARY VENDORS AND 
 PURCHASERS. 
 
 1. As to the time for sale. 
 
 2. The manner of sale. 
 
 3. The consideration. 
 
 4. General 'points relating to sales hi/ fiduciary vendors. 
 
 5. As to inirchases hy fiduciary purchasers. 
 
 Sales by 
 fiduciary 
 vendors. 
 
 Under the term, fidnciaiy vendors, we may comprise 
 agents for sale, assignees of bankrupts and insolvents, mort- 
 gagees with powers of sale, persons selling under the special 
 authority of Railway and other Acts of Parliament, and, in 
 particular, of the Lands Clauses Consolidation Act, 1845 
 (and who may be conveniently described by the general 
 appellation of statutory o"\^^lers {a) ), and, lastly, trustees 
 selling in pursuance of either an expi-ess tiust or only a per- 
 missive power ; — the term, trustees, being also held to include 
 executors, when selling freeholds or copyholds in exercise of 
 a power expressed or implied (h), and personal representa- 
 
 (rt) As to the meaning of the word 
 " owner " in the 76th sect, of the L. C. 
 C. Act, see Dowjlas v. L. tD N. W. R. 
 Co., 3 K. & Jo. 173. A person in 
 possession, but showing a bad title, is 
 not, but a surviving partner selling 
 the property in the discharge of his 
 duty to wind up the partnershij? is, 
 an owner within that section ; see 
 ex. i^artc Freemen of Sunderland, 1 
 Drew. 184 ; and as to the powers of 
 statutory owners to sell and con\'ey 
 
 (casements and rights in, upon, or 
 over land for the purposes of the 
 Sanitary Acts, see 37 & 38 Vict, 
 c. SP, s. 31. 
 
 {h) As to which see the late cases 
 of Movxr v. Orr, 7 Ha. 475 ; Cornick 
 V. Pearce, ib. 477 ; Affleclc v. James, 
 17 Sim. 121 ; Curtis v. Fulbrook, 8 
 Ha. 25, corrected, 278 ; Ilaijdon v. 
 Wooel, ib. 279 ; Wilson v, Bennett, 15 
 Jur. 912, V.-C, K. B. ; IG Jur. 9GG, 
 V.-C. P. ; 5 Dc G. & S. 475 ; Doc v.
 
 SALES BY FIDUCIARY VENDORS. 53 
 
 tives genorall}^ when selling the chattels real of then- Chap. ii. 
 testator or intestate. 
 
 We may consider sales by such vendors, with reference to Time, cou- 
 the proper time for and manner of sale, and to the price and 
 
 whicli should be obtained ; and then refer to some points 
 which cannot conveniently be classed under any of these 
 heads. 
 
 maun*;!- 
 of. 
 
 Section 1. 
 
 (1). The time for sale. Time for 
 
 .sale. 
 
 An agent for sale should, subject to a reasonable exercise r,y agents, 
 of discretion, sell with all convenient speed. 
 
 It was the duty of assignees of a bankrupt to sell without Assignees of 
 any imnecessary delay (c) ; and any single creditor nught 
 insist on a sale ; and, if he so insisted, it was doubtful whethei 
 the Court could refuse its assent ((?). Until creditor's as- 
 signees were chosen, the official assignee alone might sell 
 under the order of the Court, if the Court considered that 
 delay would be prejudicial to the bankrupt's estate : after 
 creditor's assignees were chosen, the official assignee, under 
 the Act of 1849, was not to interfere in directing the time or 
 manner of effecting the sale (c) : and a contract duly entered 
 into by the creditor's assignees under the Act of 1849, was 
 binding on the official assignee (/'), and a hond fide sale by 
 the creditor's assignee alone, without the concurrence of the 
 official assignee, was upheld (r/). But under the Act of 18G1, 
 
 ITaghes, 20 L. J. 148 ; 6 Excli. 223 ; Cooh v, Damon, 29 Beav. 123 ; and 
 
 Mortimer v. Hartley, 6 Exch. 47 ; G see now 22 & 23 Vict. c. 35, ss. 14, 18. 
 
 C. B. 819; Mather v. Norton, 21 L. See too Hamilton v. Budmastcr, L. R. 
 
 J. 15, V.-C. P. ; 16 Jur, 309 ; Pejrpcr- 3 Eq. 323. 
 
 corn V. Wai/nian, 5 De G. & S. 230 ; 0) Ex parte Goring, 1 Ves, jun. 1G9. 
 
 Braisey v. Chalmers, 4 De G. M. & {d) S. C. ; and aee 6 Ves. 622 ; E.t. 
 
 G. 528 ; Robinson v. Lowater, 17 'parte Miller, 1 M. D. & De G. 44. 
 
 Beav. 592 ; 5 De G. M. & G. 272 ; (e) 12 & 13 Vict. c. lOG, s. 40; and 
 
 Eidsforth v. Armstead, 2 K. & Jo. as to estate of Insolvents petitioning 
 
 333 ; Wrifjley v. Sykes,2l Beav. 337 ; under 5 & 6 Vict. c. 116, see 7 & 8 
 
 Jlodfjkinsonv. Quinn, 1 Jo. & H. 303 ; Vict. c. 96, s. 10. 
 
 where there was both an express (/) llu'jhca v. Morris, 9 Ha. G3G. 
 
 trust, and an implied power to sell ; (y) J{q Ward' sLcfjary, 26 Beav. 207.
 
 54 
 
 SALES BY FIDUCIARY VENDOllS. 
 
 Chap. II. 
 Stct. ]. 
 
 upon the appointment of the creditor's assignee, all the 
 estate, Ijoth real and personal, of the Ijankrupt was divested 
 out of the official assignee, and vested in the creditor's 
 assignee, who thenceforth had the sole management of it, 
 except as to debts under £10 (//). 
 
 Assignees of 
 insolvent. 
 
 It was the dut}^ of an assignee of an insolvent, under the 
 1 & 2 Vict. c. 110, in the absence of special direction by the 
 Court, to sell the real estate, if practicable, within six (lunar) 
 months after his appointment ( i) ; but a sale was not neces- 
 sarily invalid hy reason of its being made after such period 
 had elapsed (/). The insolvent's leaseholds for years formed 
 part of his " estate and effects," and not of his " real estate," 
 and were therefore to be sold merely " with all convenient 
 speed " (/) ; but the laws relating to the relief of insolvent 
 debtors have been repealed, and the Insolvency Court 
 abolished, and all debtors, whether traders or not, are now 
 subject to the bankrupt law (//t). 
 
 Trustee under 
 the recent 
 Bankruptcy 
 Act. 
 
 Under the Bankruptcy Act, 1800 (vi), the creditors are to 
 appoint a trustee of the bankrupt's property, and also a 
 committee of inspection to superintend his administration of 
 it (a) : and upon the appointment of the trustee the debtor's 
 property passes to, and becomes vested in, him (ji) ; and he 
 has wide powers of sale and management (q). 
 
 Mortgagees. A mortgagee, with a general powei- of sale, may sell without 
 
 waiting for the concurrence of the mortgagor ; nor does a 
 stipulation in the mortgage deed that the mortgagor shall, if 
 required, join in any sale, entitle a purchaser to require his 
 
 (Ji) 24 & 25 Vict. 0. 134, ss. 117, 
 118, 128. 
 
 (/) See s. 47, and see p. 53 n. (e). 
 
 {k) Mather v. Prlcstman, 9 Sim. 
 352; Cole v. Coles, 6 Ha. 517; and 
 see Doe v. L'rans, 1 Cro. & M. 450. 
 
 (I) Waldron v. IloweU, 3 Russ. 
 376 ; and see 53 Geo. III. c. 102, s. 
 
 19, and 1 & 2 Vict. c. 110, ss. 47, 50. 
 
 (m) 24 & 25 Vict. c. 134, sect. G9. 
 
 (n) 32 & 33 Vict. e. 71. 
 
 (o) Sect. 14 ; those provisions seem 
 imperative ; as to meaning of the 
 word property, see sect. 4. 
 
 0)) Sect. 17. 
 
 (q) Sects. 25, 27.
 
 SALES liV FIDUCIAIIV YENDUKS. 55 
 
 conciUTeiice (/•)• Thu Trustees and Mort*iagees Act («) pro- Chap. II. 
 
 Sect. 1, 
 
 vides that where any principal money is secured or charged U — 
 
 by deed on any hereditaments of any tenure, or on any Their power 
 
 . 1 n i* to sell under 
 
 interest thereni, the person to Avhoni sucli money shall tor j^„r(l Cran- 
 the time being l)e payaljle, his executors, administrators and north's Act. 
 assigns shall, at any time after the expiration of one year 
 from the time when such principal money shall have become 
 payable, according to the terms of the deed, or after any 
 interest on such principal money shall have been in arrear 
 for six months, or after any omission to pay any premium on 
 any assurance, wdiich, by the terms of the deed, ought to bo 
 paid by the person entitled to the property sul)ject to the 
 charge, have (among other powers) a power to sell, or concur 
 with any other person in selling, the whole or any part of the 
 property subject to the charge, l;)y pul)lic auction or private 
 contract, subject to any reasonable conditions he may think 
 fit to make, and to rescind or vary contracts for sale, and to 
 resell the property from time to time in like manner ; but six 
 months' notice in writing must be given before such power of 
 sale is exercised (t) : and the Act contains certain ancillary 
 provisions as to the application of sale moneys, and the 
 appointment and duties of a receiver. The object of this 
 statute was to dispense with the necessity of inserting a 
 power of sale in every mortgage, by making such a power 
 incident to tlie estate or interest of the mortgagee or owner of 
 the charge : but partly Ijecause no statutory form can be made 
 sufficiently elastic, so as perfectly to adapt itself to the 
 requirements of each particular case, and partly because 
 its provisions arc not so beneficial or comprehensive as 
 those of a similar natm-e which are commonly inserted in 
 mortgages, this statute is seldom relied on, except in cases 
 where the mortgage debt is so small that the expense of 
 the transaction is of material moment ; or perhaps where 
 a person, who has merely a memorandum of charge, is 
 desirous of eflecting a sale of the property. It must, 
 however, be borne in mind that unless negatived l)y 
 
 (r) Corder v. Morgan, 18 Ves. 344. sect. 11. 
 
 (s) 23 & 2-t Vict. c. 145, part 2, (0 Sect. 13,
 
 56 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chap. II. 
 Sect. 1. 
 
 express declaration, or rendered inapplicable by the actual 
 frame of the deed (h), these provisions apply to every 
 mortgage executed after the passing of the Act (.c). The 
 Act does not apply to mortgages of, or so far as they 
 affect, mere personal chattels or choses in action. 
 
 Mortgagees When a mortgagor and mortgagee with a power of 
 
 K-iie how not sale, concurred in demising to a trustee, for the purpose 
 extinguislKil. Q^ granting building leases at the request of the mortgagee, 
 during the continuance of the security, and of the mort- 
 o-ao-or when the debt was satisfied, and the demise was 
 not expressly made subject to the power of sale, it was 
 held that the poWer of sale was not extinguished, and 
 that the concurrence of the mortgagor was not necessary 
 to make a good title (y). Where a mortgagee with a 
 power of sale submortgages with a declai-ation that the 
 submortgagee may exercise the power, it has been 
 doubted whether the power of sale in the original mort- 
 gagee is not destroyed l^y the transfer (z). The better 
 opinion seems to be that it is only suspended, and upon 
 a simple transfer hy way of submoiigage, is exercisable by 
 the transferee. 
 
 Statutory 
 owners. 
 
 Statutory owners must, of coui'se, sell within such limits 
 (if any) as to time as are j)i"escribed by the Act under which 
 they derive their powers. The Lands C. C. Act, 1845, seems 
 to impose no restriction as to time upon the purchase of 
 lands by agreement ; although it limits the time for com- 
 pulsory purchases by the company to a period of three 
 years from the passing of the special Act, unless some other 
 period be therein prescribed (a) ; and it would seem that, 
 in the absence of restriction, even a compulsory power 
 could be exercised without reference to lapse of time (h) : 
 
 (h) Sect. 32. 
 
 (x) Sect. 34, The Act came into 
 operation on the 28th Aug. 1860. 
 
 (>/) Kinr/ V. Ilccnan, 3 Dc G. M. & 
 G. 890. 
 
 (:) Crvsc V. NoifcU,2 Ji\r. N. S. 53G. 
 
 (a) L. C. C. Act, 1845, s. 123. 
 
 {h) I'hiclncsse v. Lancaster' Canal 
 Co., 4 M. & W. 472. A railway com- 
 pany cannot, it seems, exercise its 
 compulsory powers when it is evident 
 that the entire line cannot be com-
 
 SALES BY FIDUCIARY VENDORS. 
 
 57 
 
 Chap. II. 
 Sect. 1. 
 
 but a railway company, having found their original under- 
 taking impracticable cannot, it seems, exercise their com- 
 pulsory powers in respect only of part of the proposed 
 scheme (t-). It is sufficient if the compan}^ within the 
 limited period, give notice of their intention to take the 
 lands, and sunnnon a jury to assess their value (<?) ; or i^tatutory 
 
 , . . ,1 ..,.,, notice. 
 
 merely give notice and take possession, m which latter case 
 it rests wdth the landowner to have the value ascertained (e) ; 
 or give notice and deliver the usual bond (/), or even 
 merely give notice (y) ; Ijut if, after giving notice, they 
 neglect to take the necessary steps for summoning a jury, 
 the issue of the warrant to the sheritf may be enforced 
 against them by a mandamus under the C. L. Procedure 
 Act, LSo<4 (A). A contract in anticipation of the special 
 Act, which subsequently confers the power of sale, is binding 
 on the company (/) : but it has been held that the company, 
 after incorporation, are not bound by the agreement of the 
 promoters with the landowner, unless they expressly, or by 
 acts, adopt it as their own (j). 
 
 pleted ; see Grai/ v. Liverpool and 
 Bury R. Co., 9 Beav. 391 ; Cohen v. 
 Wilkinson, 12 Beav. 125, 138; 1 Mac. 
 & G. 481. 
 
 (c) Oray v. Liverpool d: Bury R. Co. 
 9 Beav. 391 ; Cohen v. Willinson, 12 
 Beav. 125, 138 ; 1 Mac. and G. 
 481. 
 
 {d) BrocHchank v. Whitehaven Junc- 
 tion R. Co., 15 Sim. 632 ; 5 Ry. Ca. 
 373; and see Rey. v. Binninyham and 
 Oxford Junction R. Co., 15 Q. B. 634, 
 affirmed, 647 ; Worsleyv. South Devon 
 R. Co., 15 Jur. 970 ; Burlclnshaw v. 
 Birmingham, tic. R. Co., 5 Exch. 487. 
 
 (e) Doc v. North Staffordshire R. 
 Co., 16 Q. B. 526 ; 15 Jur. 945, Q. B. ; 
 and see Doc v. Leeds d; Bradford R. 
 Co. ib., 946; 16 Q. B. 796 ; Inye v. 
 B. W. i' S. V. R. Co., 3 De G. M. & 
 G. 658. 
 
 (/) Sparrow v. 0. W. .0 W. li. Co., 
 2 De G. M. & (J. 91. 
 
 (y) Lord Salisbury v. Ot. N. R. Co., 
 17 Q. B. ; 3 El. and VA. 413 ; Edinburyh 
 
 and Dundee R. Co. v. Leven, 1 Macq . 
 H. L. C. 284. 
 
 (A) Fotherby v. Metrop. R. Co., 
 L. 11. 2 C. P. 188. 
 
 ((') Ifawlcs V. Eastern Co. R. Co., 
 3 De G. & S. 743 ; 1 De G. M. & G. 
 737 ; and affirmed, 5 H. L. Ca. 3^1, 
 In The Manchester etc., R. Co. v. Ut, 
 N. R. Co., 9 Ha. 284, a question 
 arose, but was not decided, as to 
 tbe effect of two special Acts confer- 
 ring on different companies the right 
 of compulsorily purchasing the same 
 land. 
 
 (j) Preston v. Liverpool R. Co., 5 
 II. L. Ca. 605. Sec, too, Williams v. 
 St. George's Ilarlour Co., 24 Beav. 
 339 ; reversed on app., but on the 
 ground that the Company had adopted 
 the contract; 2 De G.and Jo. 547. See 
 also as to the power of the i)rojcctors 
 to bind the Company, Caledonian, 
 dc, li. Co. V. Mayor of Ilelcnsburyh , 
 2 Jur. N. S. 69."> ; 2 Macq. 391 ; and as 
 ti> the per^Aonal liability of those who
 
 58 
 
 SALE.S BY FIDUCIARY VENDUliS. 
 
 Chap. II. 
 Sect. 1. 
 
 Trustees f(ir 
 sale. 
 
 Trustees for sale are not, Ly the usual direction to sell 
 "with all convenient speed," precluded from exercising a 
 reasonaV)le discretion as to the time of sale ; nor need one 
 co-trustee adopt the opinion of another (Z) ; l)ut in cases of 
 clearly improper delay they will be responsible for any con- 
 sequential loss to the estate (l). A direction to sell with all 
 reasonable expedition and within a specified time, does not 
 preclude a sale after the expiration of such period, or inca- 
 pacitate the trustees from making a good title to a pur- 
 chaser ; but as between themselves and their cesfiiis que 
 trust (m), the onus of shewing that the cci^tais que trust are 
 not prejudiced by the time for sale being extended, is thrown 
 upon the trustees, unless the Court relieves them of the 
 trust, or authorizes the delay (n) ; and where a sale has 
 been postponed until long after the time at which it appa- 
 rently ought to have been effected, a prudent purchaser 
 should ask for some explanation of the delay (o). For the 
 purpose of determining the relative lights of tenants for life 
 and remaindermen, twelve months will be considered a 
 reasonable period within which to execute a trust to sell or 
 purchase " with all convenient speed " (j)), or, " so soon as 
 conveniently may be" (q); and this although the property be 
 a reversion (/•). Where trustees are directed to sell " with 
 all convenient speed," or " so soon as conveniently may 
 be," but the time for sale is left entirely to their own dis- 
 
 profess to contract for the company, 
 sec Kclner v. Baxter, L. E. 2 C. P. 
 17-i ; Scott V. Lord Ebnry, ib. 255. 
 
 (A-) Buxton V. Buxton, 1 Myl. & C. 
 80 ; but see Taylor v. Talrum, 6 Sim. 
 281. It has been held, by ShatUvdl, 
 V.-C. that surviving trustees can 
 make a good title and receive the 
 purchase-money, although the trust- 
 instrument directs any vacancy to be 
 filled up within a specified time 
 which has elapsed ; ]VurhHrtoii v. 
 Sand If):, 14 Sim. 022 ; sed qu. 
 
 (J) Puttcndcn v. Ilolson, 22 L. J. 
 Ch. 697 ; Cm/ v. Hall, 1 Jur. N. S. 
 972 ; Devaynci v. Bobinson, 21 Beav. 
 86 ; Fry v. Bry, 27 Beav. 144. 
 
 (//i) Pearre v. Gardner, 10 Ha. 287 ; 
 Cuff V. JIall, 1 Jur. N. S. 972 ; and 
 see Witc/tcot V. Zouclt, 1 Ch. Ca. 97 ; 
 10 Ha. 288. 
 
 («) Cliffy. Hall, 1 Jur. N. S. 972. 
 
 (o) StrowjJiUl V. Anntey, 1 De G. 
 M. & G. 635 ; and see judgment in 
 Bcmynes v. Boblnson, supra. 
 
 {p) Parry v, Warrington, Q Mad. 
 155 ; Viclccrs v. Scott, 3 Myl. & K. 
 500 ; and cases cited in L'lu-in v. 
 Elwin, 8 Ves. 547. 
 
 {(j) li/eixlcy V. Lord Chesterfield, 13 
 Beav. 288 ; but see cases cited in 
 L'lirin V. BIwiii, 8 Ves. 547. 
 
 ()•) Wi/kin.wn V. Buncan, 23 Beav. 
 471.
 
 SALES BY FIDL'CIAUY VENDORS. ol 
 
 cretion, they may not arbitrarily postpone the sale tor an Chap. II. 
 
 • 11 • 1 1 i L •Sect. 1. 
 
 indefinite period ; especially in eases where such jjostponenient _ — . 
 
 may have the effect of varying the relative rights of tenants 
 for life an<l remainderman (•s) ; and in one case (/), where 
 trustees, having a discretion, allowed a reversionary interest 
 in a fund to remain unsold for nineteen years, when it fell 
 into possession, the tenant for life, who had received 
 nothing, w^as held entitled to be recouped, out of the fund, 
 the difference between the amount when it fell into pos- 
 session and the value of the reversion at the end of a year 
 from the testator's death, calculated on the assumption, that 
 it would fall into possession on the day when it actually 
 did fall in. 
 
 It has been said that, in the absence of any special Whether 
 
 Lound to sell 
 
 direction, trustees for sale should, subject to a reasonable immediately. 
 exercise of discretion, sell with all convenient speed (c) : 
 but in practice, trustees of a will or settlement are not 
 generally considered bound under the ordinary trust for 
 sale, nor is it usual for them to sell, except upon the request 
 of some one or more of their cestui^ que trust, or under 
 circumstances which render a sale necessary or expe- 
 dient (v) ; or unless the property is not of a permanent 
 character. And as respects the time of sale, greater lati- 
 tude may, it is conceived, be allowed wdiere the trust for 
 sale is contained in a settlement, than where it is conferred 
 by a will ; for in the former case, the trust is frequently 
 introduced merely for the convenience of declaring the 
 beneficial trusts, and not with any intention of an imme- 
 diate or early sale of the property. The like distinction 
 may also be held to exist between the case of a trust 
 
 (.9) Walker v. Shore, 19 Ves. 391 ; {>■) Dav. Conv, iv. 30 : if after 
 
 Fry \. Fry, 27 Beav. Hi. rc<[uest, the tnistees unreasonably 
 
 (t) Wilkinson V. Duncan, 23 Beav. delay the sale, this will not affect 
 
 469 ; in this case it was considered the relati\e rights of the cestuis 
 
 that the tnistees liad properly ex- f/iic trust ; see Lechmcre v. Earl of 
 
 ercised their discretion, but that it Carlisle, 3 P. Wms. 215 ; Walker v. 
 
 was not to prejudice the tenant for Shore, 19 Ves. 391 ; Caldeeott v. Cul- 
 
 life. decott, G .Tur. 232 ; Greislcy v. Lord 
 
 (u) Sug. 62. ChestcrficUi, ] 3 Bcav. 294.
 
 GO SALES BY FIDUCIARY VENDORS. 
 
 Chap. II. (whetlier in a deed or will) to sell for the purpose of raising 
 __?!!^1^- a specified sum, and that of a trust to sell for the mere 
 purpose of a division of the proceeds among a class of bene- 
 ficiaries. After a bill is filed for the administration of the 
 trust, trustees cannot sell without leave of the Court (u^ : 
 it has, however, been held by the Court of Queen's Bench, 
 that the power of an execxdur to make a good title to the 
 chattels real of the testator is not afiected by the existence 
 of an administration suit, so long as there is no decree («) ; 
 and it would seem that in a creditor's suit an executor may, 
 with leave of the Court, exercise the power of sale which is 
 implied from a charge of debts (?/). 
 
 Executors Greater latitude as to the time for selhng is given to 
 
 impJifa'power executors, who sell under a power of sale implied from a 
 of sale. charge of debts, than would be allowed to ordinary trustees 
 
 for sale; and though it is only right that a purchaser 
 should be fully protected, it may l)e doubted whether the 
 authority of executors to sell in such a case has not been 
 prolonged beyond reasonable limits. Thus in one case {z), a 
 sale by executors thirty-three years after the death of their 
 testator, for the purpose, as they alleged, of paying his debts, 
 was enforced against the purchaser ; and in a later case («), 
 although twenty-seven years had elapsed since the testator's 
 death, and nine years since the death of the executor, it 
 was held that the executors of the original executor could 
 make a good title under the implied power of sale ; and 
 further that they were not bound to answer the inquiry of 
 the purchaser, whether any debts still existed which ren- 
 dered a sale necessary. 
 
 Remarks on It may bc here remai-ked, with much deference to the 
 
 fiarJ' eminent judge who decided this case, that the latter branch 
 
 of the decision, although avowedly based upon Forbes v. 
 
 (w) Waller V. Smalwood, Amb. G7t>. S. 570. 
 
 {%) Neevesv. Burrar/e,U Q. B. 504, (s) Wrir/lcij v. Si/l:€s, 21 Beav. 337. 
 
 scd. qu. ; and sec Mcdthy v. llusscU, See Sugd. Pow. 8th ed. p. 121. 
 2 Sim. & St. 227. [a) Sabin v. Ilcape, 27 Beav. 553. 
 
 (y) Bolton V. SlannanI, 4 Jur. N.
 
 SALKS BY FIDUCIARY VENDORS. 01 
 
 Peacock, 1 Pliill. 717, is really untouched Ijy that authority. Chap. II. 
 
 In Forbes v. Peacock there was no doubt that tlio vendor, a '—'- — 
 
 sole surviving executor and trustee for wale, could sell and 
 convey ; the only (juestion was Avhether he could give a good 
 discharge for the purchase-money : and it was held, and 
 perhaps properly held, that the charge of debts indicated an 
 intention on the part of the testator that the trustees' receipt 
 should, under all circumstances, be a good discharge to a 
 purchaser, and, inasmuch as the existence or non-existence 
 of debts was immaterial, the vendor was held not bound to 
 answer the purchaser's inquiry on the point. In tSah'ni v. 
 TIeapc, the validity of the sale itself, at least as between the 
 vendor and the devisees of the estate, depended upon the 
 existence of debts. Unless the vendor knew or believed that 
 debts existed, he was committing a fraud in selling the pro- 
 perty ; and although it may be admitted that the purchaser 
 was not entitled to evidence of the existence of debts, it may 
 yet be doubted whether, especially under the suspicious cir- 
 cumstances of the case, he had not a right to be assured that 
 the vendor was professedly selling for the only purpose which 
 could warrant a sale; and whether, even assuming (which may 
 be also doubted) that he could have safely omitted to make 
 the inquiry, the refusal to answer it when made was not 
 implied notice that no debts existed. The general rule is i 
 conceived to be, that a vendor, not protected by condition, is 
 bound, to the extent of his personal information and belief, to 
 answer anij question put to him Ijy the purchaser, the answer 
 to which may elicit matter affecting the title ; and the decision 
 in Sahin v. Hcape, so far as it may appear to impugn this 
 rule, and even its entirety, should, it is respectfully submitted, 
 be acted upon with much caution in actual practice. 
 
 Trustees of a mere power of sale with the usual trusts for Trustees 
 re-investment in real estate, ought not to sell except for some oTsalef ^^^'^'^ 
 good reason (h) ; the Court, however, will not control a hand 
 Jide exercise of their discretion (c) ; but a sale by a trustee, 
 
 (Ij) See 10 Ves. 309 ; Watts v. (c) Sug. Pow, Sth ed. GOl ; Marshall 
 
 lixnllxstonc, 6 Beav. 188 ; Sug. 70, v. hiaddcv, 7 Ha. 428 ; 4 De G. & S.
 
 G2 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chap. II. after a cesh'/i qnr tiur^l lias become absolutely entitled to the 
 L_! _ property, is prhiid fuclc invalid {(I). 
 
 May nut sell 
 when objects 
 of trust are 
 satisfied. 
 
 Trustees ought not to sell after the objects of the trust are 
 satisfied, even where their power of sale is not confined to 
 the continuance of the trust ; nor, where it is so restricted, 
 can they exei'cise it after the time when, but for their own 
 default, the trust ought to have been completed {c). In one 
 case, Avhere the limitations of the settlements were exhausted, 
 Avith the exception only of a jointure secured by a term which 
 was still subsisting, a power of sale, exerciseable with the 
 consent of the person entitled to the rents, was held to be 
 extinguished (/'). Where an estate was devised to trustees for 
 different persons in specified shares, some of the beneficiaries 
 being entitled absolutely, while the shares of others were 
 settled upon trusts for their benefit, and the trustees had an 
 unlimited power of sale over the whole estate, it was held 
 that this power might be exercised so long as the trusts of 
 any of the shares remained unperformed (//). 
 
 
 Fictitious 
 sale by, set 
 aside. 
 
 Where a transaction, apparently a sale under the ordinary 
 power, was in fact a mere contrivance to raise money for the 
 purpose of its being advanced to the tenant for life, under a 
 power of advancement in the settlement, it was set aside as 
 a fraud u^Don the power of sale (//). 
 
 Time fixed 
 by author 
 of trust 
 cannot b(; 
 anticipated. 
 
 When the instrument creating the trust fixes the time for 
 sale, this cannot Ix' anticipated either by the trrstees or the 
 Court, however injurious the delay may be to the estate: e.(j.\ 
 
 ^108. As to the validity of indefinite 
 powers of sale, with reference to the 
 rule against perpetuities, see Wood 
 V. White, i Myl. & C. 460 ; Nelson 
 V, Callow, 15 Sim. 353, and cases 
 cited ; Cole v. Scv:eV, 4 L)ru. & W. 
 432; 1 Jai-m. Wills, 3rd ed. 237: 
 there seems to be little or no doubt 
 of their validity. 
 
 [d) Jefferson v. Tyrcr, 9 Jur. 10S3, 
 V.-C. S. And see Wunjh v. Wii<hf, 
 
 2 Drew. 31s ; Laiitsberi/ v. Collier, 2 
 K. & Jo. 709, 
 
 (e) Wood V. White, 2 Keen 604 j 
 Lewin 433. 
 
 iff Wolleii V. Jenkins, 23 Beav. 53 
 affd. on app. ih. 03. 
 
 (y) 'Jalte v. >^'ir in stead, 26 Beav. 
 525. 
 
 (A) Rohlnson v. Bri'j:)s, 1 Sm. & G. 
 18S.
 
 SALES BY FIDUCIARY VENDORS. C3 
 
 where a testator directed an advowsou to be sold upon the Chap. II. 
 
 dfotlt of A., the incuriihent, the Court held that it had no ' 
 
 jurisdiction to sell in A.'s lifetime, although upon his death 
 it would be necessaiy to present a new incuniljent before 
 any sale could be effected (/) ; and where trustees, with the 
 consent of the tenant for life and of some of the cestvAs que 
 trust, attempted to sell in anticipation, they Avere not allowed 
 costs of the attempted sale and litigation, as against the 
 ccsfuis qvA truM who were under disability (j). But not- May be 
 withstanding an imperative direction to sell, trustees may, (v"heii°°^ ' 
 with the sanction of the Court, postpone a sale, where strict 
 compliance with the terms of their trust is clearly disad- 
 vantageous to the parties beneficially interested (/•). 
 
 The ordinary power of sale and exchange may, it seems Acceleration 
 be accelerated by the surrender of a prior life interest, for, ^f p^ior 
 this does not prejudice the estate of the remainderman, but "I'^erest. 
 only changes the nature of the property ; but where powers 
 of charrjino- are limited to successive tenants for life 
 when in possession, the power given to a tenant for life in 
 remainder must await the regular determination of the 
 previous limitations, and cannot be accelerated by the sur- 
 render of a prior life interest (/). 
 
 On the other hand, where a settlement of a reversion, in Eeversion 
 terms authorised a sale at any time with the consent of the to^prejudice 
 
 tenant for life imder such settlement, it was held that the o^ remainder- 
 man under 
 trustees might proceed to an immediate sale, although its ex^jress power. 
 
 effect would be, under the trusts declared of the purchase- 
 money, to vary the rights of the cediiis que trvM by giving 
 such tenant for life an innncdiate income (in). 
 
 (!) Johnston v. Bahcr, 8 Beav. 233 ; (/) TrnrJJ v. Ti/.imn, 21 Beav. 437. 
 
 see Blacklow v. Lava, 2 Ha. 40; (m) Clxrh v. Sei/movr, 7 Sim. 67; 
 
 GosUnrj V. Carter, 1 Coll. 652. % and see Taslia- v. StiudJ, 6 Sim. 62o ; 
 
 (j) Lccdhamv, Vhaintcr, i K. &.To. Blarhvond v. Borrovcx, 4 Dru. & W. 
 
 458. 441 ; dikx v. llomcx, 15 Sim. 359 ; 
 
 (J) Mwrifi V. iforri^, 4 Jur. N. S. Muni v. Lemon, 20 Beav. 269 ; 7 De 
 
 802. a. M. & G. 310, 351.
 
 Gi 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chap. II. 
 Sect. 1. 
 
 Power to 
 conA-crt, &.C., 
 should be 
 exercised for 
 general 
 benefit. 
 
 But trustees, in exercising discretionar}' powers of 
 changing the nature of the trust estate, ought not to be 
 inHuenced by any desire to benefit one cestui que trust at 
 the expense of another (h) : and if one of several cestais que 
 trust, e.g. a tenant for life, having an absolute in-esponsible 
 discretionary power of giving or -withholding his consent to 
 a sale by the trustees, become himself a trustee, he is thereby 
 precluded from withholding or giving his consent to a sale, 
 with a view more to his o^^'n interest than to that of the 
 other beneficiaries (o). \^^lere there is a tenant for life 
 without impeachment of Avaste, trustees of powers of sale 
 and exchange should be particularly careful not so to 
 exercise them as to enable him to take undue advantage of 
 his rights in respect to timl ler and minerals. 
 
 Conditional 
 powers of 
 and trusts 
 for sale. 
 
 Subsequent 
 and precedent 
 condition. 
 
 Powers of and trusts for sale are often exercisable only 
 under certain specified conditions : when this is the case, 
 and a sale is made in breach of a condition, the purchaser's 
 safety seems to depend upon the following considerations, 
 viz. : 1st, whether the condition is subsequent or precedent ; 
 and, 2ndly, whether it aff'ects the title to the legal estate. 
 If it aff'ect merely the equitable title, an apt declaration in 
 the instrument creating the trust or power will protect a 
 purchaser against the non-performance of a precedent Q;), 
 and (I /yyf/o/-?, of a subsequent condition; as in the case of 
 an ordinary power of sale in a mortgage, which usually 
 contains a precedent condition that certain notices shall 
 have been given, and defaults made in payment, but with a 
 declaration relieving purchasers from lialjility for a breach 
 of such condition. If, on the other hand, the exercise of a 
 power is to affect the legal estate, as where land is limited 
 in strict settlement, and a power is given to trustees, in 
 certain specified events, to sell, and, for that purpose, to 
 revoke the old and appoint new uses, here, unless the 
 required events occur, the old limitations remain unaffected, 
 
 (/i.) Bah>/ T. lUikliohjh, 1 Jur. N. S. (") Lord v. Wightwid; i De G.. 
 
 363 ; 7 De G. M. & G. 104 ; 3 Eq. E. M. & G. 808. 
 901. (p) Sug. Pow.
 
 SALES BY FIDUCIARY VEXD()1{S. G5 
 
 no twitlistanding any atteiupted exercise of the po\ver; and flKip. Ii. 
 
 any declaration that purchasers shall not be bound to see ' 
 
 that the events have happened, would, it is conceived, be 
 inoperative (q). 
 
 The usual clause in mortgage deeds that a purchaser shall 
 not be bound to inquire as to the propriety or regulaiity of 
 the sale, and that notwithstanding any impropriety or 
 irregularity, the same shall, so far as he is concerned, be 
 deemed to be within the power, though it relieves him 
 from the obligation to inquire, does not protect him if he 
 has notice of anything which throws a douljt upon the 
 validity of the sale (/•). 
 
 (2). Manner of sale. Section 2. 
 
 An agent or trustee, simply authorized to sell by public Manner of 
 auction, either generally or even for a specified sum, cannot. Power to sell 
 whatever price he offered, sell by private contract (s) ; but auoticm 
 in one or two i-ecent cases, after an abortive attempt to 
 sell by public auction, subject to a reserved bidding, a sale 
 by the trustee or agent by private contract at the reserved 
 price has been upheld, and the title has, under special 
 circumstances, been forced on the purchaser (/). 
 
 And an express authority to sell by private contract, or only by 
 would not, it is conceived, justify a sale by auction (u.) ; un- contract, 
 less the authority were to sell for a specified sum, and the 
 price obtained at the auction (after payment of the inciden- 
 tal expenses) exceeded or equalled that amount. Nor does 
 an authority to sell to A. for a specified sum, necessarily 
 
 {q) See I)oe v. Martin, 4 T. R. 39 ; Sma. 143 ; and see Ford v. Ileeli/, 
 
 Watkins V. Williams, 16 Jur. 181 ; 3 Jur. N. S., 116. 
 
 21 L. J., Ch. 601; i='errart(? V. Wilxon, (.s) iJanid v. Adama, Amb. 495; 
 
 4 Ha. 385 ; and a singular case of In re Loft, 8 Jur. 2U6, 0. ; Sug. 56, 
 
 Ilovyham v. Sandys, 2 Sim. 95, 145 ; ct seq. 
 
 and see, as to the construction of dis- {t) Else v. Barnard, 28 Beav. 223 ; 
 
 cretionary trusts for sale, Lord lien- Boiisfidd v. Jlodyes, 33 Beav. 90 ; 
 
 dlesham v. MtH.r,li Sim. 249 ; Bird v. Scd qu. 
 
 Fox, 11 Ha. 40. (it) See and con.sidcr Daniel v. 
 
 ()•) Jenkins v. Jones, 6 Jur. N. S. Adams, Anib. 495. 
 391 ; Parlinsonv. Ilanhurij, 1 Drew.& 
 
 VOL. I. P
 
 G6 
 
 SALES BY FIDUCIARY VENDOliS. 
 
 Cliiip. II. 
 Sect. 2. 
 
 To A., does 
 not authorize 
 sale to B. 
 
 As to trusts 
 created since 
 28th August, 
 1860. 
 
 justily a sale to B. for tliat (or, it is conceiNud, any 
 sum (f). 
 
 I'reater') 
 
 Sale by estate 
 a<jent. 
 
 Sale by 
 assignees of 
 banlirujit ; 
 
 or insolvent; 
 
 In all cases, where by any will, deed, or other instrument 
 of settlement, executed or, in the case of a will or codicil, 
 revived since the 28th August, 1 SCO, it is expressly declared 
 that trustees shall have a power of sale over hereditaments, 
 they may, unless the trust instrument directs the contrary, sell 
 either by public auction or private contract, as they deem 
 most advantageous [x). Whether this provision is applicaljle 
 to a case where there is an imjierative trust for sale, may be 
 doubted ; and the point has not yet been decided {y). 
 
 An ordinary estate agent who has not been instructed as to 
 what conditions as to title, &c., are necessary in respect of the 
 estate for which he has been instructed to find a purchaser 
 at a specified price, is not justified in signing an absolute 
 contract on behalf of the owner {z). 
 
 The assignees of a bankrupt might, although they incurred 
 some risk in so doing, sell b}-^ private contract («) ; and they 
 were justified in selling in lots (6) ; but without the sanction 
 of the creditors they might not buy in on a sale by auc- 
 tion (c), and under the general order in bankruptcy it was 
 for the assignees, and not for the mortgagees to conduct the 
 sale {(1). 
 
 The assignees of an insolvent, under the 1 & 2 Vict. e. 110, 
 (see s. 47), were bound, if practicable, to sell his real estate 
 by public auction, in such manner, and at such place or places. 
 
 (r) Bultecl V. Lord A huirjci\ 6 Jur. 
 410, V.-C. W. 
 
 (x) 23 & 24 Vict. c. 145, ss. 1, 32, 34. 
 
 {ij) See 3 Dav. Con v. 464 n. and as 
 to the scope of sect. 1, ib. 460 n. 
 
 [z) Humcr v. Sharp, L. R 19 Eq. lOS, 
 V. C. H. 
 
 (a) Ex parte Uunman, 2 Ro. 6G. 
 
 (b) See Sug. 60 et scq. 
 
 (c) Ex parte Leuis, 1 Gl. & ,1. 69. 
 {d) Ex parte Cuddon, 3 M. D. & De 
 
 G. 302, V.-C. K.B.; ExpartcMHire'jor, 
 4 De G. & S. 603. As to directing a 
 
 sale on the petition of a mortgagee, 
 before the time fixed by the mort- 
 gage deed, see Ex 2^(1^6 Biynold, 3 
 Mon. & A. 477, which Lord St. 
 Leonards queries. The general order 
 did not seem to aj^ply if the mort- 
 gagee could not prove for the defi- 
 ciency, Ex parte Kdrjldlen, 3 De G. & 
 S. 583 ; nor to equitable mortgages, 
 as distinguished from mortgages of 
 equitable interests, Ex parte Payler, 
 16 Ves. 434.
 
 SALES IJY FIDUCIARY VENDOllS. 07 
 
 as .should be directed ])V the creditors ; if, liowever, they in- Chap. II. 
 effectually attempted to sell by auction, they could, after the '_! 
 
 expiration of the time (six lunar months) limited by the 
 Act, sell by private contract, with the consent of the major 
 part in value of the creditors present at a meeting duly con- 
 vened for the purpose (e) : nor was a sale necessarily invalid 
 by reason of the directions of the creditors as to the manner 
 of sale not having been strictly complied with, the provisions 
 in the Act being merely directory (/). As respects leaseholds 
 for years, the assignees were merely required to sell with all 
 convenient speed, and had an entire control over the mode 
 of sale {</). 
 
 Under the Bankruptcy Act, 1869, the trustee has power or trustee of 
 
 i- '' ' ' ^ bankrupt 
 
 to sell all the property of the bankrupt, by public auction under the 
 or private contract, with power, if he thinks fit, to transfer " ' 
 
 the whole thereof to any person or company, or to sell the 
 same in parcels (/<). 
 
 Mortgagees, trustees and agents for sale, may, in the absence or mortgagees, 
 
 . . , , . . , .V trustee.s, or 
 
 of restriction, sell by private contract or pul)lic auction (?) : agents. 
 and though not bound to ofier the estate to public competi- 
 tion, before disposing of it privately {j), they should, as a 
 general rule, unless specially authorized to sell by private 
 contract, sell by auction, to avoid questions with their 
 beneficiaries, as to whether the price obtained was ade- 
 quate (Ji). 
 
 They may also, as a general rule, sell either altogether or Estate may 
 
 ,.,.,. I n 1 / he sold in 
 
 in parcels (/) ; subject of course, to a liability to be called to parcels, 
 account in Equity if they adopt a mode of sale which is 
 
 (e) Mather v. Pricsiman, 9 Sim. (l. F. & J. 542, case of trustee. 
 
 352 ; see Doe v. Ecans, I C. & M. {k) See now as to trusts created 
 
 450. since 28 Aug., 1860, 23 & 24 Vict. 
 
 {/) Wri'jld V. Maumkr, 4 Beav. c. 145. 
 
 512. (/) Sug. 61. It appears that a 
 
 (,'/) Supra, p. 54. trust for sale of "any part of" an 
 
 (h) 32 & 33 Vict., c. 71, s. 25. estate, at the discretion of the trus- 
 
 (/) Sug. 61. tees, would authorize a sale of the 
 
 (i) Darcij V. Darrant, 1 De (J. & entirety ; Lord PumUesham v. Meux, 
 
 J. 535, 538, case of mortgagee selling 14 Sim. 249 ; see Voole v. Farraml, 
 
 under power ; Harper v. JIaycs, 2 De 7 Taunt. 122. 
 
 F 2
 
 68 
 
 SALES BY FIDUCIAIIV VENDOHS. 
 
 Chap. II. 
 Sect. 2. 
 
 But not in 
 nndivideil. 
 shares : 
 semhle. 
 
 Standing 
 timber, &c., 
 must be sold 
 with the fee; 
 
 so also 
 niiiierals 
 
 except under 
 the t'onfirma- 
 tion of Sales 
 Act; 
 
 clearly depreciatoiy : but it may ])l' doubted Avhetlier, even 
 at Law, a power {m) of sale, unless it contained expressions 
 pointing to such a mode of dealing with the estate, would 
 be well exercised by a sale of an undivided share. They 
 may not concur with the owners of other properties in a 
 joint sale, except where obviously beneficial to their cestuis 
 que trust (pi) ; and it has been decided that trustees for sale 
 under a settlement must sell the standing timber with the 
 estate, although the tenant for life be unimpeachable of 
 waste (o) ; and that a sale of the estate, apart from the 
 timber, is void at Law Q)) : so where the trust is to sell for 
 payment of debts or other limited pui'poses, and subject 
 thereto the estate is settled on A. for life, with remainders 
 over, the trustees may not fell and dispose of the timber, 
 instead of selling the fee simple of part of the estate (q) ; 
 the same doctrine applies to a reservation of minerals, or 
 any other part of the inheritance, upon a sale by fiduciary 
 vendors (r) ; although special circumstances, such as local 
 custom, or the peculiar nature of the property, may occa- 
 sionally render such a mode of sale desirable and proper. 
 Where a will empowered trustees with the consent of the 
 tenant for life, who was unimpeachable for waste, to sell all 
 or any part of the settled lands, it was held that they could 
 not sell the surface, reserving the minerals (s). This decision 
 led to the passing of the 25 & 2G Vict. c. 108, which after 
 giving retrospective validity to sales, &;c., from which the 
 minerals were excepted, enables trustees or donees of a 
 power of sale, to dispose of land with a reservation of 
 
 (m) Chance on Powers, 2il. 
 
 (») liede V. Oalcs, 10 Jur. N. S. 
 1246, overruling Lord Eomilly, 32 
 Beav. 555 ; compare McCarojher v. 
 Whieldon, 34 Beav. 107. 
 
 (o) Cockerell v. Cliolmeley, 1 Euss. & 
 M. 418; see Watlingt&n v. Wahlron, 
 23 L. J. N. S. 713 ; BucUerj v. IIovcU, 
 29 Beav. 546. 
 
 ip) Chohneley v. Paxton, 3 Eing. 
 207. 
 
 {q) Da lies v. Wcscomh, 2 Sim. 425 ; 
 Marl-er v. Kekeir'ich, 8 Ha. 299 : but 
 see Kekeivich v. MurJcer, 3 Mac. & Gr. 
 
 311. See a case of Silvester v. Bnidlei/, 
 13 Sim. 75, where it was unsuccess- 
 fully contended that the inheritance 
 of the timber was, in Equity, severed 
 from the inheritance of the soil ; and 
 Butler V. Borton, 5 Madd. 40. See too 
 Bennett v. Wi/ndJuim, 23 Beav. 521. 
 
 (?•) But not (it is conceived) to a 
 reservation of mines, on sales to 
 Railway or Waterworks Companies ; 
 see S Vict. c. 20, s. 77, and 10 Vict, 
 c. 17, s. 18. 
 
 (s) Buckley v. Iloxvell, 29 Beav. 
 546 ; and vide infra, Ch. XX.
 
 SALES BY FIDUCIARY VENDORS. 09 
 
 minerals, and cither Avith or witliont powei's of woiking the Chap. II. 
 
 same, but the sanction of the Court of Chancery must he '-—— 
 
 previously obtained (t). A special authority to sell minerals 
 and easements apart from the surface, or rice rcrsd, is now 
 commonly inserted in well-drawn instruments, in appropriate 
 cases. 
 
 So under the Leases and Sales of Settled Estates Act (19 k, •';• ti'u s.-ttkd 
 
 I'^i^tatcs Act. 
 
 20 Vict. c. 120), the Court of Chancery may authorize a sale 
 of mines apart from the surface (u). 
 
 Where the trust is to sell for purposes which may, Ijut Exccsshe .sali 
 will not necessarily, require a sale of the entiret}^ a purchaser purpose, 
 need not see that no more is sold than is requisite (x). 
 
 Fiduciarv vendors are also bound to use all reasonable Advortise- 
 diligence to obtain a fair price (y) : if, therefore, they sell 
 by auction they should give due notice of and advertise the 
 sale : and if the estate have been adveii:ised to be sold in one 
 particular manner (as in lots), they should not sell in any 
 other way (as altogether, or, under a different plan of allot- 
 ment,) without re-advertising the sale in accordance with 
 the proposed alterations (z). But when a binding contract 
 has been entered into to sell at a fair price, they cannot 
 break it off in order to accept a higher offer (a). 
 
 A trust to sell land as building land, has been held to As to sales for 
 
 buildiDg 
 
 authorize the trustees to set it out and make the necessary purposes, 
 roads, and pay the expenses out of the proceeds of sale (h). 
 Where land is sold for building purposes, under the ordinary 
 
 (<) As to what are minerals within 301 ; Dolton v. Haccii, 6 Madd. 9 ; 
 
 the Act, sec hire Brown's estate, 11 Sug. 658; Thomas v. Toiniscnd, 1(5 
 
 W. R. 19, and generally as to what are Jiir. 736. 
 
 minerals, Darvill v. Roper, 3 Drew. dj) 3 IMer. 208. 
 
 294 ; Earl of Rosse v. Wainman, 14 (-) Ord v. Noel, 5 Madd. 438 ; see 
 
 M. & "W. 634 ; Hext v. Gill, L. R., p. 441. 
 
 7 Ch. Ap. 699, and definition of Mel- («) doodidn v. FiehUmj, 4 Do G. 
 
 lish, L. J., at p. 712. M. & G. 90 ; See Harper v. JTai/ex, 2 
 
 (u) Re Mallln, 3 Giff. 126 ; Re Lav; De G. F. & J. 542. 
 
 7 Jur. N. S. 511. See 19 & 20 Vict. (b) Cookson v. Lee, 23 L. J. Ch. 
 
 c. 120, sec. 11. 473. 
 
 (.r) Spaldiiiy v. Shalmrr, 1 Vern.
 
 70 SALES r.Y FIDUCIARY VENDORS. 
 
 Chap. IT. po^vcr of sale and cxcliano-e, a difficulty often occnv.s in 
 ^""^- "• practice as to the laying out of the road.s and as to the feasi- 
 l.ility of securing to purchasers a right of way over such roads. 
 The best plan seems to be to let each lot comprise a moiety of 
 the adjacent road, usque admedium vice; and to reserve rights 
 of Avay over it in favour of the purchasers of neighbouring lots ; 
 and it is conceived that such a reservation, over land actually 
 sold under the power, would be supported: but this does not 
 get rid of the difficulty in respect to so much of the roads as 
 have to be formed over plots which remain undisposed of; the 
 common power not apparently authorizing the sale of mere 
 easements over lands which may possibly be retained in 
 settlement (c;). It is very desirable in settlements and wills 
 aflecting land which is likely to be used for building, to 
 insert special clauses providing for these and other difficul- 
 ties, Avhich in modern practice often interfere with the 
 advantageous letting or sale of propei-ty as a building estate. 
 
 Under Settled Under the Leases and Sales of Settled Estates Act ((?), 
 the Court has power to direct that any part of the settled 
 estates shall be laid out for streets, squares, gardens, sewers, 
 kc. ; either to be dedicated to the public or not ; but it will 
 not interfere unless these works are required for the im- 
 mediate improvement of the property in its existing state, or 
 with a view to its being at once leased or sold for building (e) ; 
 nor will the Court sanction a sale of part of the estate, in 
 order that tlic proceeds may be expended on roads or the like, 
 for facilitating the granting of building leases (/). 
 
 As to the It sometimes happens that upon the sale in lots of a large 
 
 reservhifr the estate, roads, which have been made by the vendor for the 
 roads^upon a_^ P^^^'P*^^^^ ^^ acccss to the Several portions of the property, 
 a mineral are reserved to him. In a case which recentl}^ came under 
 the author's notice, the effect, although unintended, of such 
 
 {(■) See as to the case of a lea.se (< ) lie Ilurh's Settled Estates, 2 
 
 under a power, DfiyreJl v. Hoare, 12 H. & M. 196. 
 Ad. & Ell. 3.t6. fgj ^ (f) Re Chambers' Settled Estates, 
 
 id) 19 & 20 Vict. c. mi; sees. 14, 28 Beav. 6.o3. 
 1.") ; and lide infra, Ch. XX.
 
 SALES BY FIDUCIARY VENDORS. . 71 
 
 a reservation Avas to secure to the vendor an undue advantage Chap. II. 
 by interposing a barrier which enabled him to preclude the .. 
 
 purchasers from working by outstroke valuable minerals 
 which were found to exist under the property. 
 
 A trustee for sale in a mortgage deed should not sell without Sale under 
 
 ^ '- mortgage. 
 
 n< )tifying his intention to the mortgagor (r/) : nor can a mort- 
 gagee sell pending a suit to redeem (h) ; and he sells at his 
 own risk if a tender has been made him of his principal, 
 interest, and costs (;'). Where an equity of redemption was 
 conveyed to a second mortgagee upon trust to sell, and out of 
 the proceeds to pay oft' the fii\st mortgage, then the second 
 mortgage, and to pay the surplus to the mortgagor, it was held 
 that the trust was duly cai-ried out by a sale suJiJed to the 
 first mortgage (k). 
 
 But a sale bya mortgagee, although harsh and improA'ident, Oppressive 
 wiU not be set aside in Equity, if clearly withni the terms ot g^gee not 
 the power ; nor will a mere offer, unaccompanied by actual |^^JJj"^^ 
 tender, of the amount due to him, be sufficient to prevent a 
 sale {I). And so long as anythmg remains due on the security, 
 a mortgagee may pursue all his remedies concurrently (m) ; 
 but where on a sale he allows his agent to receive the sale 
 moneys, he cannot, if they are misapplied or lost, sue the 
 mortgagor for the mortgage debt (ii). If acting bond fide, a 
 mortgagee can only be stopped by tender of principal, interest, 
 and costs (o) : and it would require a strong case to induce 
 the Court to restrain an intended sale by a mortgagee under 
 special conditions, on the ground of their undue stringency (y)), 
 
 (ry) Anon. (5 Madd. 10, for expenses by mortgagor to mort- 
 
 (h) Rhodes v. Bucliand, 16 Boav. gagee's solicitcir, under a threat of an 
 
 212. exercise of a power of sale, but not 
 
 (i) Jenkins v. Juncs^ 6 Jur. N. S. really due, may, it seems, be recovered 
 
 391. at Law ; Close Y. PhipTh 7 Man. & G. 
 
 (k) Manser v. /Ju', 3 Jur. N. S. 586. 
 
 252. . (m)Zod7(.arJv. 7/«)Y?//, OBeav. 354; 
 
 (0 See Maithic v. Edivards, on .ap- OKJfell v. Bj(ov,, 16 Beav. 15S. 
 peal, U Jur. 76] ; and (as Jones v. (») Mni^cv Y, Hendrie, 28 Beav, 
 
 Matthie) H Jur. 501, reported balow, 341. 
 
 2 OoU. 405 ; and see Grurjeon v. Ger^ (o) Paijntcr v. C'arcv', Is ^nPt 41. 
 
 Vfird^ 4. y. <^ C, llf). Money paic', {p) A'cr.^Jinw v. Kqlo)r,19 .hn-. 974.
 
 salf:s by Firuc'iARY VENrors. 
 
 Chap. II. but of course if the sale be cleaii}' oppressive, as c (j. where 
 ____!lI^L__ the mortsfasee overstates the amount of his debt, and thi-s 
 deters the person entitled to redeem from paying it off, the 
 Notice of sale. Court will interfere (7). Where, as is usually the case, the 
 power is exercisable only upon notice, a contract for sale is 
 not invalid by reason of its being entered into liefore the 
 expiration of notice duly given (r) : nor need notice be given 
 if not required by the terms of the power (.s). In one case 
 which cannot be regarded as satisfactory, a purchaser was 
 compelled to take a conveyance without the mortgagor's con- 
 cuii'cnce ; although it was apparent from the dates of the 
 instruments, that the rcquii'ed notice had not been given (/) : 
 but it was more recently held, that the clause protecting a 
 purchaser from inquiring whether due notice has been given 
 is unavailing if he buys with the knowledge that notice has 
 not been given (u). 
 
 When to be Where the equity of redemption has been incumbered, 
 
 given to the . . . 
 
 assigns of and the power does not contain the usual clause making an 
 
 emor gagoi. jj-j-gg^lar sale valid as in favour of a purchaser, a sale without 
 the required notice — if required by the terms of the power to 
 be given to the assigns of the mortgagor (x) — is invalid 
 as against the subsequent incumbrancers, even although the 
 mortgagor expressly waive the notice and consent to the 
 sale (ij). A notice fairly given pursuant to the terms of the 
 power is valid, although the party on whom it is served is an 
 infant (z) ; so, too, it would seem, if he is a lunatic («), or 
 totally blind, or deaf (h) ; and the Court is slow to interfere 
 as against a bond fide purchaser : thus, whei-e notice was 
 given by the mortgagee of an intention to sell, if payment 
 
 (5) Jcnliiis V. Jones, Jur. N. S. (.r) It is very desirable to omit the 
 
 391. word "assigns" from the clause re- 
 
 ()•) Major V. Ward, i Ha. 598 ; quiring notice, 
 
 which also see, as to mode of giving (y) Forster v. Tlogijart, 15 Q. B. 
 
 notice. 155. 
 
 (■■?) Darcy v. Durrani, 1 De. G & J. (r) Traccy v. Lawrence, 2 Dre. 103. 
 
 535. (rt) Robertson v. Lockie, 15 Sim. 
 
 (0 Ford V. I/ehy, 3 Jur. N. S. Ill, 285 ; Mellcrsh v. Keen, 27 Beav. 236, 
 
 V. C. S. cases of notice of a dissolution of 
 
 (jt) Parlinson v. Hanhury, 1 Drew. & partnership, 
 
 ^ma. 1-13. (h) Robertson v. Lorllc, svprd.
 
 HALKS liY FIDUCIARY VENDoES. 73 
 
 was not made at the end of six months from the date, hut fhap. Ii. 
 
 was not actually served till nearly three weeks afterwards, U 
 
 it was held that the notice was not invalid ; tlie sale not 
 havino- been made until more than six months had elapsed 
 since the delivery of the notice (c). Subse(|uent negotiations 
 between the mortgagee and mortgagor may amount to 
 waiver of a notice duly given (d). 
 
 In the case of a mortgage of hereditaments, executed after Noticu to bu 
 
 , . . . . yiven midcr 
 
 the 28th August, LSOO, six months notice m writnig must, i.ord Cran- 
 unless the deed otherwise directs, be given to the person or 
 one of the persons entitled to the propei-ty subject to the 
 charge, or be affixed on some conspicuous part of the property, 
 before the statutory power of sale can be exercised ; but the 
 purchaser's title is not to be impeached on the ground that 
 no case had arisen to authorize the exercise of the power, or 
 that no such notice had been given («), 
 
 Fiduciary vendors are not, without special authority, justi- Sale under 
 lied in selling under any unnecessary and depreciatory special conditions 
 conditions (such as a condition that the purchaser shall take, ""P^'op^r. 
 at a valuation, fixtures belonging to a third person) ; or that 
 he shall take the property saddled with a disadvantageous 
 contract, into which they have improvidentl}^ entered (/') ; or 
 conditions unnecessarily restrictive of the purchaser's right to 
 a marketable title : it is by no means clear that, under such 
 circumstances, they can make a title which a purchaser can 
 be advised to accept {<j). They should, however, take care 
 that their title to the property as described in the particidars 
 is good, or that the defect is guarded against by apt condi- 
 tions ; and where from neglect in this respect a mortgagee 
 failed in a suit against a purchaser for specific performance, 
 he was disallowed the costs of the suit as against the mort- 
 
 (r) Mclfcrs V. Br.iini, 9 Jur. N. S. (0 23 & ■2[ Vict. e. l-]5,s. 13. 
 
 958. (/) Marriott \. Aiirltor Jicvcrsionanj 
 
 {(/) Totnmry v. White, 3 H. L. C. 49 ; Co., 3 Do G. F. & J. 177. 
 
 Darcy v. Dnrrunt, 1 De G. & J. 535; (,'/) 1 IMer. 268 ; Dav. Conv., vol. i. 
 
 Mftterfs V. Brovn, !) Jnr. N. S. 258. p. 440.
 
 74 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chap. II. 
 Sect. 2. 
 
 What are not 
 depreciatory. 
 
 gagor (Ji). But, even without express authority, a fiduciary 
 vendor may, it is conceived, insert a condition enabling him 
 to rescind the contract, in the event of the purchaser insis- 
 ting on an objection, which he is unable or unwilling to 
 remove ; for though such a condition may, in a certain sense, 
 be depreciatory, yet it is one which a prudent owner, selling 
 in his own right, would introduce (i). So, too, a condition 
 that part of the purchase-money, such part not exceeding the 
 amount of the mortgage-debt, may remain on the security of 
 the property, is free from objection (k). 
 
 Trustee 
 vendor under 
 V. & P. Act 
 1874, 
 
 By the Vendor and Purchaser Act, 1S74 (/), trustees who 
 are either vendors or purchasers may sell or buy without 
 excluding the application of the rules which Ijy the Act, 
 in the absence of any stipulation to the contrary, now 
 govern the obligations and rights of vendor and purchaser. 
 These rules will be noticed more fully hereafter (m). 
 
 Mortgagee's 
 power to sell 
 under Lord 
 Cranworth's 
 Act. 
 
 A mortgagee of hereditaments, whose security is subse- 
 quent to the 28th August, 1860, may, luiless restricted by the 
 terms of the instrument, sell, subject to any reasonable con- 
 ditions which he may think fit to make, and may rescind 
 or vary contracts for sale, and buy in and re-sell the pro- 
 perty (/i) ; and a trustee who, under a trust created since 
 that date, has power to sell any hereditaments, may sell 
 subject to such special or other stipulations as he shall 
 think fit (o) ; but, of course, this will not justify him if he 
 insert conditions which are not waiTanted by the state of 
 the title, or the circumstances of the property. 
 
 Sale by "Where an estate in moiigage is contracted to be sold by 
 
 request, for parties claiming the equity of redemption, and difficulties 
 
 cl^inVa arise upon the title subsequent to the mortgage, it often 
 
 title. happens that the mortgagee, if he has a power of sale, is 
 
 (/() Peers v. C'eelei/, 1.5 Beav. 209. 
 
 (i) FaJhier v. EquitaUe Reversion- 
 ary Co., 4 Drew. 352, and the V.-C.'s 
 judgment. 
 
 {k) JJarey v, Du.rrant 1 De G. ^ J., 
 
 5.35, rule infrd, p. 79. 
 
 (I) 37 & 38 Yict. c. 78, ss. 2 and 3. 
 (m) Ch. iv. 
 
 0O23 & 24 Vict. c. 145, s. 11. 
 (o) 23 & 24 Vict. c. 145, s. 2
 
 SALES BY FIDUCI.VRY VENDORS. 
 
 i o 
 
 requested to exercise it, for the purpose of getting rid of the 
 difficulty ; and doubts are often expressed as to the validity 
 of the scheme ; or, at any rate, whether the mortgagee can 
 safely comply with the request. Assuming, as, of course, 
 must be assumed, that the power is exercisable according 
 to its terms, and the mortgagee chooses to receive his money, 
 and to obtain it by means of the power, it is conceived that 
 no valid objection can be made to such an arrangement. 
 A man taking merely that which belongs to him, by 
 means of the security which he has contracted for, does not 
 act improperly in so doing, merely because one principal 
 reason for his calling in the money is a wish to benefit 
 another person. The case, however, might be different if 
 it were part of the arrangement that the mortgage deljt 
 should be again lent to the purchaser. 
 
 Chap. II. 
 Sect. 2. 
 
 If trustees employ an agent to sell, or confide the sale to Tm.stee.s, &c., 
 a co-trustee, kc, they mil be responsible for his acts (/>). agent,'^e 
 
 re.sponsiblc 
 for his acts. 
 
 ■ It seems to be doubtful whether, when a power of sale Sale with 
 
 T 1 1 • ,1 •/-. 1 , 1 consent, what 
 
 IS exercisable only with a specified consent, a general pro- consent 
 spective consent is sufficient (q) ; or whether there must not sufficient, 
 be a consent to the particular sale : but it would seem that 
 consent given after the execution of the power is sufficient (r) 
 Where consent in writing is required by the terms of the 
 power, a parol consent, even though followed by an act 
 of part performance by the consenting party, will not be 
 sufficient (s). In a recent case, where property was devised 
 upon trusts for sale, l)ut not without the consent of certain 
 specified persons, who were legatees of the proceeds, and the 
 trustees, after the death of one of the legatees, but with tlie 
 concurrence of the person beneficially entitled to his share 
 
 (l)) 1 Atk. 87; Oliver v. Court, 
 8 Pri. 127, 167 ; Brice v. Stoles, 11 
 Ves. 319 ; 2 Wh. & Tud. L. C. 638 ; 
 and see Styles v. Guy, 1 Mac. & G. 
 422. 
 
 (q) See J/avlins v. Kemp, 3 East, 
 410, 427. 
 
 ()•) Offen V. Harmrni, 1 De G. F. & 
 
 J. 253, but tliere had been a prior 
 parol consent, and see Chance. Vow. 
 727 to 737 ; and Att.-Gen. v. Sitvxll, 
 
 1 Y. & C. 559 ; Wiles v. Urcshom, 
 
 2 Dre. 258. 
 
 (.'<) Phillips V. Edwards, 33 Beav. 
 440.
 
 7G 
 
 SALES BY FIDUCIARY YENDOKS. 
 
 Chaj). II. and Avitli the consent of tlic remaining legatees, contracted 
 
 'LL.' • to sell tlie property, the title was considered too doubtful to he 
 
 forced on a purchaser (t). We have seen that a consent is 
 not necessarily invalid by reason of its effect being to benefit 
 the consenting party (v). In the case of a lunatic, the com- 
 mittee may consent by order of the Chancellor (./■) ; and 
 where a tenant for life, whose consent is necessary to a 
 sale, becomes bankrupt, a good title may be made with the 
 assent of the bankrupt and his assignees or trustee (?/). 
 
 "Wliether A question has frequently arisen, as to whether the power 
 
 ^T^eTui^ of a tenant for life to consent to a sale is affected by the 
 tenant for life alienation of, or incumbrances upon, his life estate. The 
 
 is affected by i i> i • 
 
 alienation, &c. general rule of law is, that no one shall derogate from his 
 own s'rant. If, therefore, the deed of assurance contain an 
 actual or implied engagement that the alienee or incum- 
 brancer shall enjoy the property in specie, the consenting 
 poAver of the tenant for life cannot be exercised, as against 
 such alienee or incumbrancer, without his concurrence : but 
 if the deed contain an actual or implied recognition of the 
 liability of the property to conversion during the existence 
 of the life estate, then the consenting power of the tenant 
 for life seems to be unaffected in cases of mere equitable 
 poAvers (0). At Law the decisions recognise the continuance 
 of the power in cases Avhere the alienation is partial, or 
 merely by way of mortgage, or for some other limited pur- 
 pose («) ; but in these cases, the power cannot be exercised so 
 
 (/) Sylcs V. Shcard, 2 De G. J. & 
 S. G ; 33 Beav. 114. This decision is 
 understood to have been a surprise 
 on the counsel who successfully sup- 
 ported the objection. The decision of 
 the Court of Appeal was mainly rested 
 on the difference of opinion entertained 
 by judges, which is no longer a ground 
 fur rejecting the title : see Beioley v. 
 Carter, L. K. 4 Ch. Ap. 230. 
 
 (h) Clark V. Seymour, 7 Sim. 67 ; 
 supra, p. 63. 
 
 (x) 16 & 17 Vict. c. 70, SP. 136, 
 137. 
 
 (//) Ifoldsvnrth v. (ioo>)r, 29 Beav, 
 
 111 ; Ehdule v. Ilammcssli/, 31 Beav. 
 255. 
 
 (z) See 5 ■ Jarm. Conv. by Sweet, 
 161, et seq. ; ]Varburton v. Farn, IQ 
 Sim. 625 ; Morgan v. Rutsen, ih. 234 ; 
 and Lord Leifjh v. Lord Ashhu7'ton, 
 11 Beav. 470 (where the life estate 
 was subject to judgments), and cases 
 cited. J/urst v. Hurst, 16 Beav. 372. 
 See special provisions in the Succes- 
 sion Duty Act, 1853, s. 42, as to 
 charges created by the Act not affect- 
 ing powers of sale, exchange or parti- 
 tion. 
 
 (n) See Sug. Pow. 8th ed., ch. vii.
 
 SAI.es nY FIUUOIARY VENDUES. 7/ 
 
 as to d'feat interests previously created by tlie donee of the Chap. ii. 
 
 . . Sect " 
 
 power (/>). It has been thought (c) that an alienation out ___^Jl 
 
 and out necessarily destroys the power; but this opinion 
 has not met with general approval (d) ; and it seems to be 
 now well settled that the power is not extinguished by an 
 absolute alienation of the life estate, though of course it 
 cannot be exercised to the prejudice of the alienee. Thus in 
 a recent case (e) where A., being entitled for life, with an 
 ultimate remainder in default of children to himself in fee, 
 first sold a]l his interest in the settled estate to B., and after- 
 wards the trustees of the settlement by his direction sold 
 the same estate to B. in exercise of their power, the second 
 sale was upheld as a valid exercise of the power. 
 
 The consenting power of the tenant for life is not afiected Not affected 
 by his concurring as Protector in a disentailing assurance by rlnc^e aT^^'^^^^ 
 the tenant in tail in remainder; although the deed is ex- I'i<>t*-'ctor. 
 pressed to be made " to the intent that all estates, powers, 
 rights, and interests limited to take effect after the deter- 
 mination, or in defeazance of the estate tail should be put an 
 end to, and to limit the estate in fee simple" (/). 
 
 We may here remark that, as a general rule, a power of Power of 
 
 sale, when it 
 
 or trust for sale, out and out, for a purpose or with an object authorizes a 
 beyond the raising of a particular charge, does not authorize "^"^ ^'■'^''' 
 a moi'tgage ; but that where it is for raising a particular 
 charofe, and the estate itself is settled or devised subject 
 to that charge, there it may be proper under the circum- 
 stances to raise the money by mortgage ; which will then 
 be supported as a conditional sale {<j). On the other hand, 
 a restriction against raising a sum of money by sale of an 
 estate has been held also to preclude a mortgage (//) ; so, 
 
 R. 5, and see, too, Ti/rrell v. Marsh, (e) Alexander v. Mills, L. R., G C"h. 
 
 3 Bing ?>1 ; Warbiirton v. Farn, 6 Ap. 124. 
 
 Sim. G25 ; Hill v. Pritcltard, Kay, 3!>4 ; (/) Hill v. Pritrlmrd, Kay, 3!)i. 
 
 Simpson V. Bathurst, L. K, 5 Ch. Ap. ((j) See StroKi/liill v. Aiixlei/, 1 De 
 
 193. G. ]\r. & G. G15 ; Par/c v. C'o.iper, IG 
 
 (b) Goodriyht V. Cater, Dougl. 4G0. Eeav. 39G. 
 
 (r) SeeSug. Pow. 8thed., ch. vii. s. 5. (Ji) Benclt v. Wyndhani, 23 Beav. 
 
 ((7) See Chance. Pow. 3157 et scq. 521, sed qu.
 
 /8 
 
 SALES BY FIDUL'IAKY VENDORS. 
 
 Chap. II. too, a lease \^, lyrhnd fav'ic, not within the scope of a trust 
 
 Sect. 2. r. ^ / •\ 
 
 lor sale [i). 
 
 WJiether a 
 trustee with 
 power to 
 mortgage can 
 give a power 
 of sale. 
 
 It has been held tliat a trustee, who has merely a power to 
 mortgage, cannot give a mortgage of real estate with a power 
 of sale, though he may do so as to chattels (k) ; and it seems 
 only reasonable that a person having in himself no power 
 to sell should be unable to delegate such a power to another. 
 But it has been held that an executor, in mortgagmg his testa- 
 tor's leaseholds, may give a power of sale (I). So, too, in a later 
 case, a power given to an executor to mortgage real estate 
 was held to authorize the insertion of a power of sale {'in) ; 
 and the tendency of the recent decisions has been to treat a 
 power of sale as a necessary and proper incident of every 
 mortgage; and since the 23 & 24 Vict. c. 125, a powder of 
 sale in the statutory form has, unless expressly excluded, 
 become an implied part of every mortgage executed after the 
 passing of the Act. A powder to raise money by sale or 
 mortgage authorizes a mortgage with a power of sale {n?) 
 
 Whether 
 power of sale 
 authorizes 
 partition or 
 enfranchise- 
 ment. 
 
 It is doubtful whether a pow^ei- of sale and exchange 
 authorizes a partition ; but there can be little or no doubt 
 that it authorizes an enfranchisement; which is in fact 
 merely a sale of the freehold to the tenant instead of to a 
 
 stranQ-er. 
 
 Section 3. 
 
 The price. 
 As to the con 
 sideration : 
 
 (3). The Price. 
 
 They must sell for a gross sum of money, unless any 
 other consideration be specially authorized : for instance, a 
 for'^r^sT sum. Sale in consideration of a rent charge (o) or annuity is 
 
 {/) EtariH V. Jaclson, 8 Sim. 217. . 
 
 (k) Clarke v. Boiial Panopticon Co., 
 4 Drew. 26. 
 
 (/) Eussell V. Plaice, 18 Beav. 21. 
 Earl Vane v. Rigdcn, L. R. 5 Ch. Ap. 
 663 ; re Chawner's Will, L. R. 8 Eq. 
 569 ; and Cruikshunlc v. Duffin, L. R. 
 13 Eq. 555, where the mortgage was 
 to a benefit building society. 
 
 {m) Cook V. Dauson, 29 Beav. 123, 
 
 but see on appeal, 3 De G. F. & J. 
 127. See, too, Leigh v. Lloyd, 2 Be G. 
 J. & S. 330 ; Selbij v. Cooling, 23 Beav, 
 418 ; where the mortgage was ordered 
 by the Court. 
 
 («) Bridges v. Longman, 24 Beav. 
 27 ; re Chawner's Will, L. R., 8 Eq. 
 570. 
 
 (o) Head v. »S7(«ic, Sug. Pow., 8th 
 ed. 804.
 
 SALES ]5V FlDUClAJtV VKNDoKS. 79 
 
 invalid (/>) ; Lut a luortgagee, selling under a general power Chap. ii. 
 
 of sale, may allow a part of tlie purcliase-nioney, of course ' 
 
 not exceeding the amount due on the security, to remain on 
 mortgage of the estate, provided, that he debits himself in 
 account with the mortgagor with the whole price, and the 
 sale and mortgage are distinct transactions (q). Statutory 
 owners under the Lands Clauses Consolidation Act were 
 expressly restricted to a sale for a gross sum, except where 
 the vendor was seised in fee (/•) ; but under the Amend- 
 ment Act, the land may in any case be soM upon a chief 
 rent (n). 
 
 They should use all reasonable diligence (t), as if the And may have 
 
 ,, ,1. ,!,• n • • -, -, estate valued. 
 
 estate were their own, to obtain a fair price ; and, there- 
 fore, should ascertain its value, even at the expense of a 
 valuation (u), where circumstances seem to render such a 
 course expedient ; but they are not, it is conceived, justified 
 in agreeing to sell, at a price to be fixed by valuation, or in 
 any other manner. The price, whatever means they may 
 take of ascertaining what it ought to be, must e^■entually 
 be determined by a free exercise of their own judgment. 
 Of course they are not justified in entering into an agree- 
 ment with an intending purchaser, giving him a future 
 option to purchase at a fixed price (x). Although bound to 
 sell by auction, they may, it seems, Avithout special autho- 
 rity, fix a reserved bidding ; and, after an ineflfectual 
 attempt to sell, buy in at that price (i/) : but if they do so, 
 and there is a delay in the re-sale, they may be held 
 answerable for the loss sustained (z). In one case, instead 
 of putting up the property again for sale, liberty was given 
 
 (p) Reid V. Shcryold, 10 Ves. 370, {u) See 5 Ves. 680. 
 
 381. {x) Clay v. Ruffovd, 5 De G. & S. 
 
 [q) Bavey v. Darvant, 1 ])e G. & 768. 
 
 J. 535 : and see Thurlow v. MacJceson, (y) Jic Peyton's Settlement, 8 Jur. 
 
 L. R 4 Q. B. 97. N. S. 453 ; 30 Beav. 252 ; Else v. 
 
 (r) Sects. 10 & 11. Barnard, 28 Beav. 228; Bousfttkl v. 
 
 (.?) 23 & 24 Vict. c. ] 06, s. 2. Hodycs, 33 Beav. 90. 
 
 (t) Ord V. Noel, 5 Madd. 438, 440 ; (r) Taylor v. Tahrum, 6 Sim. 281 ; 
 
 and see 10 Ves. 309 ; Sug. Gl. Fry v. Fry, 27 Beav. 144, where 
 
 Harper v. Hayes, 2 De C.^. F. & J. there was no previous attempted sale 
 
 542 ; 2 Giff. 210. by auction.
 
 80 SALES 15Y FIDUCIARY VENDORS. 
 
 Chap. II. to the trustee to purchase at the reserved price, when that 
 
 ^_?!!!i1l__ appeared to be the full value («). A condition, reserving a 
 
 bidding, although it may, under the circumstances of the 
 
 case, subject the trustees to liability to their cestuis que 
 
 trust, will bind bidders at the sale (h). 
 
 Contract by In cases where estates are vested in trustees in trust to 
 
 tru^t^ ^"^ ^cll at the request of their cestuis que trust, the usual course 
 adoption of by ^^^ f^^^. ^^^^^ cestuis que trtbst, who are the persons most 
 interested in the matter, and who have the strongest motive 
 for obtaining the highest possible price, to enter into a 
 conditional contract of sale, and then to obtain the assent 
 of the trustees ; who, when they have satisfied themselves 
 that the sum proposed to be given for it is the value of the 
 property, ought to sanction a sale which is beneficial for 
 the persons for whom they are trustees. And a trustee 
 capriciously refusing to adopt a contract so entered into, 
 has been fixed with the costs of a suit for removing him 
 from the trusts (c). 
 
 Trustee ought If a trustee offers property for sale by private contract, 
 compeTition and there are rival bidders for it, he ought to promote com- 
 
 Itetween rival 
 bidders. 
 
 petition between them; but he is under no obligation to 
 recede from his acceptance of an offer, in order to entertain 
 a higher bid. Where a trustee for sale of an estate, not 
 readily saleable by action, with the consent of all his cestuis 
 f^ue trust offered it to a purchaser at a specified price, 
 and before the offer was unconditionally accepted, received 
 a bid of a similar amount from another person, a sale to 
 the person to whom he had first offered the estate was 
 upheld ((?). 
 
 Assignee of It has been held that the assignee of an insolvent under 
 
 Celling bllow the 1 & 2 Vict. c. 110, selling by auction at a price below the 
 reserved price, ^yy^^-^ fl^cd bv the Creditors for a reserved bidding, could 
 
 could make 
 title. 
 
 (a) Farmer v. Dean, 82 Beav. 327. 66S. 
 
 (6) Levy v. Pcndcrr/rass, 2 Beav. ((0 Harper v. Hayes, 2 De G. F. & 
 
 415. J. 542 ; overruling V.-C. S. 2 Giff. 
 
 (r) Palairet V. Careu; 32 Beav. 210. Consider this case.
 
 SALES UV FIDUCIAUr VENDOllS. JSl 
 
 make a <i;oud title ; but was personally answeiuble . to the Chap. II. 
 creditors ii 
 power (e). 
 
 creditors if he had improperly exercised his discretionary ^ 
 
 It appears (/) that the biddings for an estate sold in Opening 
 Bankruptcy may be opened before conveyance, upon terms bankruptcy, 
 similar to those on which biddings were, till recently {g), 
 opened in Chancery {k) ; though the practice is disapproved 
 
 of (0. 
 
 As a general rule, fiduciary vendors, selling by auction. Fiduciary 
 
 . vendors not 
 
 and using all proper precautions to enect an advantageous responsible 
 
 sale, incur no respoasibility should the estate sell below ^"[g "^^ °" 
 
 its value ; and Equity will even help the purchaser to his auction. 
 bargain (Jc), 
 
 Under the Lands C. G. Act, 18-io, statutory owners have no Statutory 
 
 ,1 1, -i-ii 1 owners cannot 
 
 power to fix the price ; this must be determined either by a fix- pnce. 
 jury, or arbitration, or valuation (/) : it is conceived how- 
 ever that a company agreeing with a statutoiy owner to 
 purchase at a certain price, is bound, if such price be subse- 
 quently ascertained, in mamier prescribed hy the Act, to be 
 a fair value of the land (in). Where a satisfactory title 
 cannot be made, the Company should go to a jury ; and they 
 then get a price fixed which binds the true owner, whoever 
 he may be {n). 
 
 Where real property is settled in the usual way, with a Costs of 
 tenancy for life, and a discretionary power of sale in trustees ou sale by 
 and a trust for re-investment of the purehase-monejMn land, \l^l^,^^, "•" 
 
 ipanie?;, 
 
 &c. 
 
 (e) Wriijht V. Maunder, G Jur. 71 ; Ormshi/, 2 Mol. 446. 
 4 Beav. 512 ; and see SUkhotlrnn v. (k) 5 Madd. 440. 
 
 Barrirvjtoii, 4 Beav. 110. (/) Sect. 9 ; vide infra, Ch. XIII. 
 
 (/) Ex parte Hutchinson, 2 Mon. & (m) See Ilauies v. Eastern Counties 
 
 A. 727 ; Ex parte Purtin'jton, 1 Ba. & R. Co., 1 De G. M. & G. 737; affirmed 
 
 B. 209; Ex parte Lee, 12 Jur. 995; 5 H. L. Cas. 331 ; Potts v. Thames 
 1 De G. 628. Haven Co. 15 Jur. 1004. 
 
 iff) 30 & 31 Vict. c. 48, ss. 7, 9. (n) Dowjlus v. L. \. li'. A'. Co. 
 
 (/<) Infra, Ch. XXI. 3 K. & J. 173. 
 {i) Sug. 05. In re Martin tO 
 
 VOL. I.
 
 82 
 
 SALES BY FIDUCIARY VENDORS. 
 
 Chap. 11. 
 Sect. 3. 
 
 it may bo a question whether the trustees could safely exer- 
 cise the power, for the purpose of a sale under the Lands C. 
 C. Act, except under a special stipulation that the Company 
 shall bear the costs of re-investing- the purchase-money, in 
 the same way as if the sale had been made by the tenant 
 for life, under the statutory power (o) ; or with such an in- 
 crease of purchase-money as may be considered an equiva- 
 lent to the probable amount of such costs. 
 
 Sale by An equitable tenant for life, though he can bind those in 
 
 tenauVfor life I'cmainder, cannot by the 7th sect, of the Lands C. C Act 1845, 
 0^*0"^^ A T'*^ make a valid conveyance at law, without the concurrence of 
 the trustees having the legal estate (p). 
 
 By municij)al 
 
 corporations. 
 
 Municii^al Corporations, if not within the Municipal Cor- 
 porations Act, have prmid facie the same powers of aliena- 
 tion as a private individual, though this presiunption may 
 be rebutted by showing that they hold their lands upon 
 trusts {q) ; but under the Lands C. C. Act 1845 no Municipal 
 Corj)oration can sell land lequired by the promoters for 
 extraordinary purposes, except with the consent of the 
 Treasury (v) ; the signature of the Secretary of the Com- 
 missioners to a letter of consent is sufficient {s) ; but no 
 consent can be given in respect of land not specified in the 
 memorial {t). 
 
 Committees 
 of lunatics. 
 
 Committees of lunatics ought not to exercise statutory 
 powers of sale without the consent of the Chancellor (n). 
 
 Assignee 
 buying in, 
 liability of. 
 
 Under the late Bankruptcy Law, if the assignee of a 
 l)ankrupt, l)eing unauthorized by the creditors, bought in 
 
 (0) See .sect. 80. 
 
 {p) Lippincoit V. Smtjth, 29 L. J. 
 Ch. 520. 
 
 {q) Evanv. Corporation of Avon, 29 
 Beav. 144 ; and see 5 & 6 Will. IV. 
 c. 76, s. 94 ; and Grant on Corpora- 
 tions, p. 3G5 ; and as to mortgages and 
 also sales and purchases by municipal 
 oorporation.s, see 23 Vict c. 16. 
 
 (/•) Sect. 15 of Act. 
 (s) Arnold v. Mayor, <i:c. of Graves- 
 end, 25 L. J. Ch. 776, V.-C. W. 
 (0 lb. 
 
 (u) In re Wade, 1 H. & Tw. 202 ; 
 
 In re Taylor, 1 H. & Tw. 432 ; and 
 
 see 16 & 17 Vict. c. 70, ss. 124, 125, 
 130, 137.
 
 SALKS J5V FlDL'ClAltY NKNDoltS. 83 
 
 tlie estate, he was, unless they siihseijiiently sanctioned the Chap. II. 
 
 step, deemed a purchaser on his own account (x) ; and in '' 
 
 one case Avhere the assio-nees put ui) tlie estate in two lots, ^"^^^ °°*^ ^*^' 
 
 •^ -^ ^ on excess on 
 
 and bought in both Avithout authority, and, on a re-sale, re-sale of one 
 
 J 1 1 A 1 , • 1 T> 1 ^'^^< against 
 
 there was a loss upon lot A., but a gam upon lot 13., they deficiency on 
 
 were charged with the loss, and were not allowed to set off another' 
 
 the gain (?/). The mere putting up a lease to sale by 
 
 assignees, who had not taken possession, without desciibing What a 
 
 it as having belonged to the bankrupt, or as belonging to election by 
 
 themselves, did not fix them as assignees of the lease, if not f!u°Tf oL . 
 ' o ' taKe a lease ; 
 
 knocked down (:) ; 8^^^? contra if a sale was effected, and a 
 deposit paid, although the contract subsequently went off, 
 unless, perhaps, it was clearly shown that it could not have 
 been enforced (a) : but, of course, an actual assignment, if 
 made within a reasonable time after the date of the bank- 
 ruptcy, was an acceptance ; and what was a reasonable time 
 was a question for a jury (h) : the assignees could not decline 
 the propei-ty after having duly elected to take it (r). 
 
 By section 145, of the Bankruptcy Act, of 1849, a lessor under the 
 
 111. . , ,, . Acts of 1849 
 
 was enabled in a summary way to compel the assignees and 1S(31. 
 either to elect to take the lease or to give up possession. 
 This section was not .repealed by the Act of 18G1, Avhieh 
 provided that in every case of a lease, or an agreement for a 
 lease, the assignees might elect to take the same, and to keep 
 possession up to some quarter oi' half-yearly day, on which 
 rent was made payable by the same lease or agreement, such 
 day not being more than six months from the adjudication 
 (jf bankruptcy, or upon such day to decline to take the 
 same ((?). 
 
 (.';) Ex parte Lewis, c:c park Ihtxio II, (li) Mdrltcij v. Patlciidoi, 7 Jur. 
 
 1 Ol. & J. 69 & 355 ; see ex piarte N. S. 1056. 
 
 Vuddon, 7 Jur. 334 ; ,S'. C. 3 M. (r) Lawrence v. Kimclcs, 7 Sc. 381. 
 
 D. & De G. 302 : and see Ex parte (d) 24 & 25 Vict. c. 134, ss. 131, 
 
 Tomlins, Sug. Appendix, No. IX. ; 150, and as to similar provisions in 
 
 £x parte Skiivier, 1 Mon. & A. 81. earlier st.atutes, see 6 Geo. IV. c. 16, 
 
 (y) Ex parte Letcis, 1 Gl. & J. 69. s. 75 ; 12 & 13 Vict. c. 106, s. 145 ; 
 
 (:) Turner v. Pdchardson, 7 East, 1 & 2 Vict. c. lln, s. 50 ; 7 & 8 Vic!. 
 
 335. c. 96, s. 12. See iiuw the Banlrnpl.y 
 
 (a) Ifaslinr/s v. Wilson, Holt's N. Act, 1869. 
 P. C. 290.
 
 84 
 
 SALES J3Y FI]:>UC1ARY VKXDOKS. 
 
 Chap. II. 
 Sect. 3. 
 
 Under the Act of 18G9, the trustee, notwithstanding that 
 he has endeavoured to sell, or has taken possession, or exer- 
 Disclaimer by gj^^^^ ^^^g ^f ownership, may, by writing under his hand, 
 under the Act disclaim any property of the bankrupt, of whatever tenure, 
 which is burdened with onerous covenants (e) ; but he must 
 make his option within a period of not less than twenty- 
 eight days after a receipt of a written application from any 
 person interested in the property, requiring him to decide 
 whether he will disclaim or not (/) Where, however, the 
 property consists of a leasehold interest, the trustee may 
 not disclaim without leave of the Court (g), which may be 
 given or withheld at discretion (h) ; and if for the purpose 
 of obtaining such leave an extension of time is required, 
 application for it must be made before the twenty-eight 
 days have expired {}). 
 
 Sale by a 
 mortgagee 
 who makes a 
 gift of the 
 price. 
 
 Where a mortgagee in possession agreed to sell a portion 
 of the land as a site for a hospital, and to give the price to 
 the charity, so as in effect to make a free gift of the land, it 
 was held that the sale could not be supported, although the 
 price had been ascertained by valuation, and the mortgagee 
 debited himself with it in his account with the mort- 
 gagor (/i). In such a case, it is to the vendor's interest to 
 lower the price as much as possible. 
 
 Section 4. 
 
 As to general 
 points relating 
 to sales by 
 fiduciary 
 vendors. 
 
 Fiduciary 
 vendors : their 
 <;i'neral 
 liability ; 
 
 (4.) As to general points relating to sales hy Jiducuiry 
 vendors. 
 
 As a general rule, fiduciary vendors must show a market- 
 able title — that is, a title which at all times and under all 
 circumstances may be forced on an unwilling purchaser (/) — 
 and are in all respects liable to a purchaser as if they were 
 
 (i) 32 & 33 Yiet. c. 71, s. 23; 
 \\hich see as to the effect of dis- 
 claimer. 
 
 (/)Sect. 24. 
 
 ((j) See rule 28 of Bankruptcy Eules 
 of July 7, 1871. 
 
 (/() Re WUsun, L. R 13 Eq. 18G. 
 
 (i) Ex parte Lover'tng, L. R. 9 Ch. 
 
 Ap. 58 6. 
 
 (I) Daieij V. DHriant,\^De G. & 
 J. 535. 
 
 {I) See Pi/rke v. Wadditu/ham, 10 
 Ha. 8 ; and see comments on this case 
 in Mulllmjs v. Trlndcr, L. 11. 10 Eq. 
 449 ; JI a mil ton v. Buclcmaster, L. E. 
 3 Eq. 323.
 
 SALES BY FIDUCIARY VENDORS. 85 
 
 al)Solute and 1)eneficial owners (m) ; except that they ordi- Chap. Ii. 
 narily enter into no covenants for title beside the covenant 
 
 against incumbrances (n) : and their liability extends to covenants, 
 costs in a suit for specific performance (o) : they have, how- and costs. 
 ever, a general right, except in cases of neglect (p) or mis- 
 behaviour, to recover such costs from the estate of their 
 beneficiaries. So, damages recovered from assignees in bank- 
 ruptcy, upon a contract for sale approved by the creditors, 
 must be borne by the estate (q) ; but where a vendor resisted 
 a suit for specific performance, and, after his bankruptcy 
 the resistance was improperly continued by the assignee, 
 the latter was made liable for the costs incurred since the 
 bankruptcy {r). 
 
 If one of two partners become bankrupt, the solvent Sale by 
 
 ■■■ ^ solvent or 
 
 partner, in winding up the aftairs of the partnership, has a surviving 
 
 .I n 1 , 1 • 1 ± xi, _!. partner on 
 
 right to sell the partnership property to pay the partner- bankruptcy 
 ship debts (.s). But this power is an authority personal to ^'^jJ'^JJ^g^J' 
 him in his capacity of partner, and which he may exercise in 
 that capacity, but cannot transfer to another (t). So, on the 
 death of a partner, in the absence of any special provision 
 to the contrary in the articles, the surviving partner seems 
 to be able to sell, and to make a good title to the real estate 
 of the firm. 
 
 Where an equitable fee is conveyed to trustees for sale. Trustee of 
 
 , , legal estate 
 
 the trustee of the outstanding legal estate must convey it to must convey 
 , , . , -1 , . . ,1 i- ii • J • to trustees for 
 
 them Without requiring the concurrence oi their cestui que gaie of equit- 
 
 tnist : but if he do more than merely so convey, he will be ^^^^ estate, 
 responsible for any breach of trust which he may thus 
 facilitate (u). 
 
 (^m) Sug. G9 ; WJiitc V. Foljamhe, M (7) Sec Turner v. Jlanc;/, Jac. 
 
 Ves. 343 ; McDonald v. Hanson, VI 178. 
 
 Ves. 277. ('•) FoxKcll v. Grcatorcx, 33 Beav. 
 
 (n) See Hill on Trustees, •IQ'd ; 345. 
 
 Worlcy\. Frampton, 5 Ha. 560; ride (s) Fox v. Hanhuri/, (_"owp. 44.'. 
 
 infrd, Ch. XII. (0 Frascr v. Kcrshtu; 2 K. k. J. 
 
 (0) EdvHirds v. Harvey, G. Coop. 501. 
 
 40 ; Hill V. Marjan, 2 Moll. 460. (") Anrjier v. Slainmrd, 3 Myl. & 
 
 {j>) See Peern v. Ceeley, 15 Beav. 200. K. 566, 567,
 
 86 
 
 SALES BY FIDUtaARY VENDORS. 
 
 Chap. II. 
 Sect. 4. 
 
 Sale by 
 trustees, 
 rarely 
 
 restrained by 
 injunction. 
 
 Tfc is only upon strong grounds, and where irreparable 
 injury is likely to be sustained by the parties interested, or 
 a clear breach of trust is about to l)e committed, that the 
 C'ourt will, by injunction, stop an intended sale by h<luciary 
 vendors (x). 
 
 Liability of 
 person 
 assuming to 
 act as trustee. 
 
 We may here remark, that if a person, either rightfully or 
 wrongfully, assume to act as a trustee for sale, and in that 
 character sign a receipt for purchase-money, he will be 
 answerable for it, Avhether he himself receive it, or allow it 
 to be received by a stranger (t/). 
 
 Mortgagee 
 holding 
 surplus 
 purchase- 
 money. 
 
 A mortgagee selling under a power of sale, and retaining 
 the surplus purchase-money unproductive in consequence 
 only of disputes between subsequent incumbrancers, is not 
 cliargeable with interest on such surplus (z). The safest 
 course to adopt in such a case would be to pay the money 
 into Court under the Trustees' Relief Act. 
 
 Trustees 
 settling 
 doubtful 
 claims. 
 
 Altliougii trustees for sale can seldom be advised, unless 
 specially authorized, to run tlie risk of so doing, they Avill 
 generally be allowed in their accounts, any sums which, in 
 the exercise of a hond fide discretion, and acting under com- 
 petent advice, they may have j)aid in order to effect a sale : 
 as e.g. in satisfaction of a doubtful claim {n ). 
 
 Trustee 
 cannot make 
 a professional 
 l>rofit out of 
 the sale. 
 
 A trustee for sale, being a solicitor, or even one of several 
 trustees professionally employed by his co-trustees, (6), cannot, 
 nor can the firm of which he is a partner, unless expressly 
 authorized by the trust instruuient, charge his cestuis que 
 trad with any costs other than costs out of pocket : and the 
 same rule applies as aga^inst auctioneers (e) ; and a mort- 
 
 (x) k5ee Ex parte Montijomery, 1 Gl. 
 & J. 338 ; Marshall v. Sladden, 7 Ha. 
 423 ; Kershaw v. Kalow, 1 Jur. N. S. 
 974 ; Wiles v. Oresham, 1 Eq. R. 348. 
 
 (y) Raclcham v. Siddall, 1 Mac. & 
 G. 607 ; Pcarve v. Pearce, 22 Eeav. 
 1148 ; Hennesi'nj v. BraT/, -33 Beav. 96. 
 
 (■) Mathlson v. Clark, 4 W. It. 30. 
 
 (rt) Forshaio v. Ht(j(jinson, 3 Jur. 
 N. S. 476. 
 
 {b) Broiifjhtoii v. BroiKjhton, 5 De 
 G. M. & G. 160. 
 
 (o) DoiKjlus V. Archhutt, 2 De G. & 
 J. 1 48.
 
 SALES BY FIDUCIARY VENDORS. 87 
 
 gagee is considered to be a trustee for the mortgagor within Chap. Ii. 
 
 the stringency of the rule (d). But an auctioneer or a ' 
 
 broker, Avho is a mortgagee, may, it seems, deduct his com- 
 mission if he sells under the direction of the Court (e). A 
 trustee may, before ho accepts the trust, stipulate for a 
 remuneration for his services : Ijut there must be no undue 
 pressure on his part, and any Ijargain of this sort is dis- 
 couraged by the Court (/). 
 
 (.").) As to inirchascs hy trustees. S ection 5. 
 
 Trustees are not justified in investing trust money in ^^J^^i^i^^^^ hj 
 the purchase of real estate, unless specially authorized so to trustees. 
 do by the instrument creating the trust (g) : nor will the invelt'^only" 
 Court compel them to exercise a mere discretionary power !^\"^ij'^'j.j{"^'^^''^^ 
 of so investing (/<) : but, wdiere the powder is so w^orded as 
 to be equivalent to a trust to invest upon a speeilied request 
 being made, they are bound to act upon it, although the result 
 may be — as in the case of a purchase of leaseholds — to benefit 
 the requisitionist at the expense of other cestids que trust (/), 
 and although the trustees so purcliasing are bound, as 
 between themselves and the vendor, to enter into the ordinary 
 covenants to pay the rent and perform the covenants in 
 the lease. Of course trustees empowered to invest in the 
 purchase of real estate could not, as a general rule (k), safely 
 buy leaseholds, unless the power exjDressly authorized this 
 particular mode of investment. It may not be useless to 
 remark that the 4 & 5 Will. IV. c. 29, authorizing investments 
 in Ireland under trusts to invest in England, &c., and Lord 
 St. Leonard's Act, 22 k, 23 Vict. c. 35, authorizing a trustee, 
 unless expressly forbidden, to invest any trust fund on real 
 
 (rf) Mathhon v. Clarke, 3 Drew. 3 ; Beav. 322 ; Cado(jan v. Lord Essex, 2 
 
 3 Eq. R. 127 ; Kirhmn v. Booth, 11 Dr. 227. 
 
 Beav. 273. (k) But see, as to renewable Irish 
 
 (e) Arnold V. Garner 2 Vh. 2^1. leaseholds, Maclcod v. Anneslc//, 16 
 
 (/) Lewin on Trusts, 448. Beav. COO ; as to the powers of cor- 
 
 (g) Earl of Wiiichclsca v. A'^ordiffr, ])orations or trustees holding funds in 
 
 1 Vern. 434 ; Hill on Trustees, 375. trust for any public or charitable 
 
 (/() Lee V. Yotinrj, 2 Y. & C. C. C. purpose to invest on real security, see 
 
 532. now 33 & 34 Vict. c. 31. 
 (i) Beauclerk v. Asfilurnham, 8
 
 88 PURCHASES BY FIDUCIARY VENEORS. 
 
 Chap. II. securities in any part of the United Kingdom (/), apply only 
 '— to investments by way of secuiity, and do not extend to 
 
 purchases. 
 \Vhat A trust to invest in the purchase of lands, to be settled to 
 
 investments , ii ,,1 i , , i 1 . 
 
 authorized by tile Same uses as the settled estates, does not authonze an 
 purchase' expenditure upon substantial improvements {m). Now, 
 
 trustees, who are in possession, are empowered by " the 
 Improvement Improvement of Land Act, 1804" (»), to apply for and carry 
 iS'Jl. ' out, in accordance with the provisions of the Act, the several 
 
 improvements mentioned in the 9th section, such as drainage, 
 
 irrigation, planting, and the like. 
 
 Time for Where trustees under a will are directed to invest in the 
 
 investment. 
 
 purchase of land " with all convenient speed," twelve months 
 from the testator's death Avill be deemed, as between the 
 parties beneficially interested, a reasonable time within which 
 to make the investment (o) : but, as between the trustee and 
 his cesfais que trust , the former, unless imperatively required 
 so to do by the terms of the trust, is not bound to make, and 
 would not be justified in making the purchase until a favour- 
 able opportunity occurs. 
 
 Devise of Where a testator devised estate A, conditionally upon his 
 
 estate A , i • t 
 
 conditionally cxccutors buying and " completing the purchase of" estate 
 eSiatTB.^^*^ ° ^' (which in that event was to go along with A,) -svithin a 
 specified period ; but in case the executors " should not be 
 able," within that time to purchase B, then estate A was to 
 go in another specified direction, and the executors, although 
 " able," neglected to purchase B within the specified period, 
 it was held that A descended to the heir at law as undisposed 
 of ; and that the remedy (if any) of the devisees was against 
 the executors personally (p). 
 
 (J) Sect. 32. Note the provision re Xeu-mau's Sdtkd Estaicg, L. E. 
 
 in this Act, that it shall not extend 9. Ch. Ap. 681. Vhle infra, Ch. 
 
 to Scotland, and see Mihn' Will, '> XIII. 
 
 Jur. N. S. 1236. („) 27 & 28 Vict. c. 114, s. 24. 
 
 (m.) Dinnic V. Dininr, 7 De G. JE <<L- (o) Parri/ v.Warrinf/tov,r^Mad(iJ5'\ 
 
 a. 207 ; Dnit. V. Drnf, 30 Boav. 363 ; {p) r^john v. rpjohn, 7 Beav. r>9 ;
 
 Prr.t'HASES BY FIDUCIARY YENLOKS. S9 
 
 Where trustees are empowered to choose between several Chap. Ii. 
 si^ecified modes of investment, the Court will not interfere ^^^^' "' 
 with a bond fide exercise of their discretion upon the ground 
 
 Bond fide 
 exercise of 
 
 that the result may be to vary the relative rights of their discretion, 
 
 •^ -^ ^ not interfered 
 
 cestiiis que trust (q). with. 
 
 Where stock is sold for the purpose of investing the Apportion- 
 produce in land, the tenant for life is entitled to an alloAvance "ivkien.l on ' 
 in the nature of an apiwrtionment of the current half-vear's '^*''"'^ '^"^'^ 
 
 ■^ out. 
 
 dividend (r). 
 
 In exercising tlie power or trust, any special directions in Directions 
 the trust instrument as to the peculiar mode or nature of S'lstnlment to 
 the investment, must of course be strictly followed. ^^^ followed. 
 
 As a general rule, trustees for investment could not. How far 
 unless specially authorized so to do, safely buy subject to re("dre a 
 special conditions restrictive of a purchaser's 2>y/jr<« facie J^i-i'k^table 
 right to a marketable title or the usual evidence of title ; 
 nor accept a title not strictly marketable (s) ; but this must 
 be understood merely as a rule for the general guidance of 
 trustees, and it does not follow that a trustee purchasing a 
 substantially safeholding, but not strictly marketable, title, 
 is necessarily guilty of a breach of trust. In fact such pur- 
 chases are constantly sanctioned by the Court of Chancery (/), 
 whenever special circumstances exist which render the 
 acquisition of the specific property a matter of importance to 
 the trust. If, for instance, there is an estate already in 
 
 the two properties above referred to (t) Re Sheffield <{• R. R. Co. 1 
 
 as A and B were in fact undivided Sm. & G., Appendix IV. ; and see Ex 
 
 moieties of one estate. parte Loire, 19 L. T. 310. In Ex 
 
 (<[) See Minet v. Lemaa, 20 Beav. parte the Trustees of H'lmVeij Nero 
 
 269; 7 De G. M. & G. 340, 351. Chapel, V.-C. K. 29th June, 1855, 
 
 (r) Lord Londeshoroii/jh v. Somer. the Court in directing an inipiiry as 
 
 v'dle, 23 L. J., Ch. C46. to title directed that " in making such 
 
 («) See now 37 & 38 Vict. c. 78, s. 1, in<iniry, E. M. of kc, shall be con- 
 substituting 40 years for 60 years sidered to have been seised for an 
 as a sufficient root of title. See also estate in fee simple of the said plot of 
 Sects. 2 & 3 as to the power of trustees land at the date of his will and at tlie 
 to purchase without excluding the time of his death," which death 
 application of the rules prescribed by occurred in 1820 ; but see Meiirirk v. 
 the Aft. Lairst, 34 Beav. 58.
 
 90 
 
 PURCHASES BY FIDUCIARY VENDORS. 
 
 Chap. II. 
 Sect. 5. 
 
 settlement, and small adjacent or neighbouring projDci-ty, 
 which has been or is likely to become a nuisance, comes into 
 the market, the Court will generally sanction the purchase 
 of such a property under a title very far from marketable. 
 So too in buj'ing a large estate the Court does not reject a 
 property, desirable as a whole, merely because some incon- 
 siderable portions, not essential from local position or other 
 causes to the due enjoyment of the residue, are held under 
 short or otherwise objectionable titles. On the other hand, 
 the want of a safeholding title to a very minute acreage 
 may be a reason for rejecting the purchase of a large estate. 
 The greater the importance of the specific land to the rest of 
 the property, the greater is the reason for buying it with 
 almost any title if the rest of the estate is already in settle- 
 ment ; and the greater is the reason for rejecting the pur- 
 chase in toto if the entire property is proposed to be taken. 
 Trustees who have done of their own discretion that which 
 the Court, if applied to, would itself have sanctioned, would, 
 no doubt, be protected ; but considering the exigencies of 
 modern practice it seems desirable, in preparing wills and 
 settlements, to give trustees for investment an express dis- 
 cretionary power to buy with less than a marketable title. 
 It may, however, be observed that except under special 
 circumstances, such as those above referred to, even such a 
 power could not be acted on with perfect safety, and that 
 the tendency of recent decisions and the recent practice 
 of the Court, is towards an increased rather than a 
 diminished particularity in investigating titles. 
 
 i
 
 91 
 
 CHAPTER III. Chap. III. 
 
 THE RELATIVE DUTIES OF VENDORS AND PURCHASERS PRIOR 
 TO THE SALE. 
 
 1. As to discloswre or concealment of defects, inciuuhrances, 
 d'C, hy vendor. 
 
 2. As to conmiendatory and other similar statements hy 
 vetidor. 
 
 3. As to disclosure or concealment of advantaijes hy [mr- 
 chaser. 
 
 4. As to depreciatory remarks or condAvct hy inirchaser. 
 
 We may next adverb to some general rules as to the relative Preliminary 
 
 . negotiations ; 
 
 duties of intending vendors and purchasers before entenng rules to be 
 into an agreement for sale : they relate to — ^ ^^^'' ^ 
 
 1st. The disclosure or concealment of defects, incum- 
 brances, (fee, by a vendor : 
 
 2ndly. Commendatory and other similar statements l)y a 
 vendor : 
 
 3rdly. The disclosure or concealment of advantages by a 
 purchaser : 
 
 4thly. Depreciatory remarks or conduct by a purchaser. 
 
 Section L 
 As to dis- 
 
 (1.) As to the disclosure or concealment of defects, incum- f,°^^^^]^^at 
 hrances, d-c, hy a vendor. of defects, 
 
 incumbrances, 
 
 Defects in an estate may be either indent,— thai is, such as vendor. 
 mav be discovered bv ordinarv vigilance on tlie part of a Vendor need
 
 92 
 
 RELATIVE DUTIES OF VENDORS AND 
 
 Chap. III. 
 Sect. 1. 
 
 out patent 
 defect. 
 
 purchaser ; (•.;/. tlic e::istence of an open footpath over the 
 property (r/), or the rviinons state of buildings (b) ; or latent, — 
 that is, such as the greatest attention (c) would not enable 
 him to discover; e.g. the existence of defects in a ship's 
 1 )ottoni when sold afloat (d) : it is held that a vendor is not 
 Ijound to point out pc.tent defects (e.) 
 
 But imi.4 IK it But he must not, either during a treaty for, or while 
 
 conceal or . 
 
 divert atteii- intcndmg a sale, endeavour to conceal a delect, or to divert 
 a purchaser's attention from it : in neither case, if proved, 
 can he enforce the agreement in Equity (/) : and in the first 
 (as where a vendor, about to sell a house, purposely plastered 
 and papered over a defect in the main Avail (g), ) the purchaser 
 may recover his deposit at Law : and this, although the estate 
 be sold " with all faults" (It) : and where there was a contract, 
 for a lease of " a newly-built house," to contain covenants on 
 the part of the lessee to repair, and the lessee entered into 
 possession, and shortly afterwards discovered that the house 
 was defectively built, specific performance was not enforced 
 
 Latent defects, against him ; partly because some of the defects were latent ; 
 and partly because, in every contract of this sort, there is an 
 implied undertaking on the part of the lessor to deliver the 
 house in complete tenantable repair (i). Of course, if the 
 defects are patent, and the purchaser, having notice of them, 
 takes possession, he cannot resist the vendor's suit for specific 
 performance (k). 
 
 Case of vendor 
 welling by 
 agent and 
 
 But at Law, where the plaintifi', knowing that a nuisance 
 existed which rendered his house unfit for a residence 
 
 (ft) Oldfidd or Boivlcs v. Round, 5 
 Ves. 508. 
 
 (6) Grant v. Munt, Coop. 177 ; 
 Kcatcs V. Earl Cador/an, 10 C. B. 591. 
 
 (c) Sug. 3.33. 
 
 (d) See iMelligh v. Mottetu; 1 Pea. 
 N. P. C. 156. 
 
 (c) Sug. 2. 
 
 (/) Sug. 2 ; see Shirk i/ v. Strattun, 
 1 Bro. C. C. 440 ; SmaJl v. Advovd, 
 Yon. 490. 
 
 (y) 4 Taunt. 785. 
 
 (h) ScJincidcr v. Heath, 3 Camp. 
 506 ; Baylehole v. Walters, 3 Camp. 
 156. 
 
 (0 Tildcslcy V, Clarkmn, 30 Beav, 
 419 ; 8 Jur. N. S. 1C3. But see 
 Oxford V. Provand, L. R. 2 P. C. 141, 
 et (purre. 
 
 (/■) Vook V. Wavyh, 6 Jur. N. S. 
 596.
 
 PURCHASERS PRIOR TO SALE 
 
 employed an agent to dispose of it, without mentioning to Chap. ill. 
 him the nuisance, and the agent, upon being asked l»y the ^'^^' ' 
 
 intended lessee whether there were any objection to the n"^i)^°"t- j^. 
 house, replied that there was not ; a majority of the Court *« ^ini 
 held, that this was no defence to an action for breach of the defect. 
 agreement to take the house (/) ; inasmuch as the plaintiff 
 made no false reiDresentation, and the agent, although he 
 made one, did not know it to be false. But this decision, 
 from which Lord Abinger at the time dissented, can no 
 longer be regarded as an authority (wi). In a later case in 
 the House of Lords, one of the Law Lords laid it down that 
 if a vendor, aware of a serious nuisance affecting his property, 
 entrusts the sale to an agent who is i^-norant of it, and who, 
 on being asked by a purchaser, innocently denies its existence, 
 the contract ought to be avoided (v^). 
 
 In a suit for specific performance, the decision in Corn- Of vendor 
 foot V. FoiuJce, would doubtless have been in favour of the ^j,,^,,[^ defects! 
 lessee ; and, in fact, a vendor cannot, although the estate be 
 sold subject to all faults (u), rely on the aid of a Court of 
 Equity, if he omit to disclose a latent defect which the pur- 
 chaser has no means of ascertaining (p) : although the rule 
 would seem to be otherwise at Law, in the absence of fraud, 
 if the sale be " with all faults" (q) : and it has been held 
 that in an action uf)on the contract, the representation of 
 the agent, if made in the ordinary course of business (r) 
 is the representation of the princij^al ; but in an action on 
 the case for deceit, the misrepresentation or concealment 
 must be proved against the principal (.s) ; but if the latter 
 knowingly refer the purchaser to an ignorant agent (t), or 
 knowingly allow him to remain under a delusion as to a 
 
 (0 Cornfoot \.FoiL'ke,Cy M. & W. Camp. 151, 15(J ; EnrJij v. (hirntt, 
 
 358. 9 B. & C. 929 ; Pickerinrf v. Doivson, 
 
 (m) See Wlhon v. Fullw, 3 Q. B. 4 Taunt. 779; Frceniau v. Baker, 
 
 (in error) 68. 5 B. & Ad. 797; Taylor v. Jlnllen, 
 
 (n) National Excliawjc Co. v. Drew, 5 E.xch. 779. 
 2 Macq. 108, 145. (r) See Coleman v. Rhla.^, :} C. L. 
 
 (o) Sug. 2. Y.. 795. 
 
 (])) See Lucas v. James, 7 Ha. 410 ; (.s) l\r Lord Campbell, 1 H. L. C. 
 
 Tildesley v. Clarkson, 30 Beav. 419. (il5. 
 
 iq) See Barjhhole v. Wallers, 3 {t) Wilson v. Fulkr, il. B. 75.
 
 94 
 
 KKLATIVE J)UT1ES OF VENDORS AND 
 
 Chap. III. 
 Sect. 1. 
 
 material fact ((() — for there may be a silence wliich is as 
 eloquent as words — this will be equivalent to misrepi-e- 
 sentation. In a recent case at Law («), it was held that the 
 passive accjiiiescence of the seller in the self-deception of 
 the buyer did not entitle the latter to avoid the contract ; 
 and it was laid down by one of the judges, that a vendor 
 is under no legal obligation to inform the purchaser that he 
 is inider a mistake, not induced by the act of the ven- 
 <lor {y). But these dicta, however applicable to the par- 
 ticular case, seem to be too wide as a general statement of 
 the law. Many cases may be put in which mere passive 
 acquiescence by a vendor in the self-deception of the 
 purchaser, may render him as liable in Equity to have the 
 contract rescinded, as if the mistake were originally due to 
 his own contrivance ; nor does it seem material, so far as the 
 principle on which the relief is granted is concerned, that 
 the purchaser might, with reasonable care or inquiry, have 
 disabused his mind of the false impression ; though the 
 want of proper caution may be evidence to show that the 
 vendor was not under the belief that the purchaser was 
 deceived. 
 
 Recent 
 valuation, 
 &c., need 
 not b'e 
 disclosed. 
 
 As to matters 
 of title. 
 
 But a vendor is not bound, even in Equity, to state that 
 tlie property has been recently valued at a sum greatly less 
 than the intended purchase-money ; or that the tenant has 
 complained of the rent as being excessive (s) ; or on the sale 
 or lease of a mine, that he has himself worked it, but 
 has abandoned the working as unprofitable, where the 
 intending purchaser or lessee has had the opportunity of 
 examination (a). 
 
 As to incumbrances and defects in title ; — A vendor, so 
 
 («) See Hill v. Gray, 1 Stark 454; 
 Keutes v. £arl Cadogan, 10 C. B. 591 ; 
 C'hitty on Contracts, 5th ed. p. 593. 
 
 (.c) Smith V. UiHjheg, L. R 6 Q. B. 
 597. 
 
 iy) L. R. 6 Q. B. 607. As to the 
 distinction which has been drawn 
 jjctween the concealment of extrinsic 
 circumstances affectintf the v.alue of 
 
 the subject-matter of sale, or ope- 
 rating as an inducement to a contract, 
 and the concealment of intrinsic cir- 
 cumstances appertaining to its nature, 
 character, and condition ; See Story 
 on Contracts, sects. 517, et seq. 
 
 (z) Abbott V. Sivorder, 4 De G. & 
 S. 448, 460. 
 
 {(i) Jfayicood v. Crq^e, 25 Beav. 140.
 
 PURCHASERS PRIOR TO SALH. 95 
 
 far as his nrinut facie liability in this respect is not noga- Chap. III. 
 
 f 1 1 i i_ Sect. 1. 
 
 tived or I'cstricted by the terms of the contract, mnst 
 
 produce to the purchaser all such documents of title in his • 
 possession (h) or power as are necessary, in order to deduce 
 a marketable title for the usual or stipulated period; and 
 must inform him of all material facts not apparent there- 
 on (c). Whether a purchaser, where a good sixty — or now 
 forty — years' title (c?) is shown, can, as a matter of right, 
 unless precluded by condition, claim to inspect earlier 
 title-deeds than those aljstracted, is doul)tful ; but the 
 better opinion seems to be, that as they clearly constitute 
 a part of the title, he is entitled to inspect them, though 
 perhaps at his own expense (e). The vendor, however, need 
 not direct attention to defects, &c., apparent on the title 
 deeds (/), nor to any matter of which the purchaser has 
 actual or implied notice ; for instance, upon the sale of On sale of 
 
 , f. ,-, leaseholds. 
 
 leaseholds (g), the stnngent or unusual character ot the 
 covenants need not Ije mentioned ; as notice of the lease 
 is notice of its contents. Thus, where j)ropcrty was 
 described merely as held by the vendor as assignee of a 
 lease, the purchaser was precluded from objecting to the 
 title on the ground that the lease contained restrictive 
 covenants (/<). The notice, however, must be explicit ; and 
 a condition that no requisition shall be made in respect 
 of a specified underlease, or any other underlease prior to 
 a certain date, has been held not to preclude a requisition 
 in respect of such a prior underlease, which was within 
 the vendor's knowledge, but not specifically noticed in the 
 contract (/) : but a reasonable opportunity of inspection 
 should be allowed the purchaser (/»■). 
 
 (b) iJarm. C. by S. 63. .S'/;i///t v. Capron, 7 Ha. 189; Vlf/- 
 
 (c) Cooper, 312; and see Gilson v. nullcs v. Boucn, 12 Ir. Eq. 194.; Leiois 
 i)'£'sfe, 2 Y.& C. C. C. 512;Sug.24G. v. Bond, 18 Beav. 85; Wilhraham 
 
 {(1) See now 37 & 38 Vict. c. 78, v.i/cf.sTV, 18 Beav. 206,209. Seethere 
 
 sect. 1. the distinction between an agreement 
 
 (e) Parr v. Lvvegrorc, 4 Drew. 170 ; to sell and an agreement to underlet, 
 
 and see Sug. 407. [h) GroivenorY.G rccn,:> ^yxv.'i^.'^Ml . 
 
 if) Sug. 6. (0 Edivnrds v. ]Vid-uar, L. R. 1 
 
 (y) Hall V. ^mith, 14 Yes. 420; Eq. 68. 
 
 Pope V. Garland, 4 Y. & C. 394 ; {k) Brumfit v. Morton, V.-C. S., 3 
 
 Walter V. Maande, 1 Jac. & W. 181 ; Jur. N. S. 1198.
 
 OG 
 
 RELATIVE DUTIES OF VENDUllS AND 
 
 Chap. Ill, 
 Sect. 1. 
 
 Misrepresen- 
 tation not 
 allowed. 
 
 Lease, how 
 fai' notice. 
 
 And there must, of course, be no misrepresentation {I) upon 
 the subject, or any artifice to divert attention : and if the 
 vendor be informed by the j^urchaser of his object in buying, 
 and the lease contain covenants which will defeat that 
 object, mere silence will in Equity be equivalent to misre- 
 presentation (ryi) ; unless indeed the purchaser enters into 
 the contract after having actually examined the lease (u). 
 But even misrepresentation, if unintentional, will not give 
 the purchaser a right of action, after conveyance, if the sale 
 be "with all faults" (o) ; and the pm-chaser may, even 
 although the case be one of fraud, waive his remedy by 
 continuing, after discovering the fraud, to deal with the 
 property as owner {])). 
 
 And it may be doubted whether the above rule as to 
 notice in the case of a lease (general as are the terms in 
 which it is laid down (g) ), would, if the question arose in a 
 suit for specific performance, be held to apply so as to affect 
 the purchaser with notice of any matter in a lease which is 
 not in its nature incidental to such an instrument : whether, 
 for instance, such implied notice, although extending to 
 unusual covenants on the sale of the term, would also extend 
 to a clause of pre-emption contained in a lease, upon the 
 sale of the reversion {)) ; or would extend to fix him with 
 notice of collateral facts, affecting the title and stated in 
 such covenants (s). 
 
 {I) See Van v. Corpe, 3 Myl. & K. 
 269, 277 ; and the judgment in Pope 
 V. Garland, 4 Y. & C. 401, 402, and 
 cases cited ; and see Baskcunth v. 
 Phillips, 6 Jur. N. S. 363. 
 
 (m) Flight V. Barton, 3 Myl. & K. 
 2S2; and cases cited, si//)ra, p. 94. n (u). 
 
 (/() Morley v. Claveriwj, 29 Beav. 
 84. 
 
 (o) Early v. Garrett, 9 B. & C. 92S. 
 
 {p) Campbell v. Fleminy, 1 Ad. & 
 E. 40. 
 
 {q) See Sug. 7. 
 
 (}•) In Martin v. Cotter, 3 J. & 
 L. 507, Sugden, C, intimates an 
 opinion that the doctrine as to a lease 
 
 being notice has been carried too far ; 
 and see Nelthorpe v. Holijate, 1 Coll. 
 203 ; and Fliyht r. Barton, 3 Myl. k 
 K. 282 ; but in Vignolles v. Bouen, 
 12 Ir. Eq. 194, a power in the lease 
 for the tenant to cut timber was held 
 to fall within the rule, see 197, and 
 Vau'jhan v. Marfill, ib. 207. And 
 see further as to how far notice of a 
 lease is notice of its contents as 
 between vendor and purchaser, infra 
 Ch. XV., sect. 5, and the very recent 
 case of Caballiro v. Ilenty, L. K. 9 
 Ch. Ap. 447. 
 
 (s) Darlinyton v. Ilamillon, Kay, 
 550.
 
 PUKCHASERS PRIOR TO SALE. 97 
 
 It is conceived, that upon tlie purchase of an estate in Chap. ill. 
 
 possession, those facts only are so far inaterhd as to "^ 
 
 render their disclosure obligatory upon the vendtn-, which ai-y^materkl 
 afiect his power to give to the purchaser that which he has *« title. 
 contracted for; and tliat, if he huy subject to a known 
 risk, circumstances which increase the mere amount of risk 
 need not, in general, be stated : for instance, it has been 
 held that the grantor of a personal annuity, of his agents, 
 although bound to give honest answers to all I'elevant ques- 
 tions put l^y the intended grantee, need not voluntarily 
 disclose the fact of his being already imder large pecuniary 
 lial:)ilities (f) ; for it may be presumed that a person, who is 
 obliged to raise money by granting annuities, is more or 
 
 less involved : but where the consideration for the annuity ^^ purchase 
 
 of reversion 
 is a vevers'wnai'jj interest belonging to the purchaser, the 
 
 grantor is bound, in Equity, to communicate to the pur- 
 chaser the unhealthy state of the proposed cef^tul que vie (u). 
 
 So if a vendor were to describe the property as let upon Delu-sive 
 
 rGiorGiico to 
 
 lease under certain specified covenants, beneficial to the covenants. 
 I'eversion, but which he knew could not be enforced, this 
 would probably be considered delusive (.v). 
 
 The mere preparation of an annuity deed by the grantor's 
 solicitor does not place him in any confidential relation 
 towards the grantee, even although no other solicitor be 
 ei)q)loyed in the transaction (/j). 
 
 A solicitor, however, is liable, at Law (z) and in Ecjulty (</), ll^l^^^^'^""' 
 who by his misrepresentation induces a person to purchase vendor's 
 
 •^ ^ ... solicitor, 
 
 his client's estate with a defective title. 
 
 And now l)y a recent statute (h), any seller or mortgagor, iiis liability 
 
 under 22 & 
 (<) Adaiimn v. Evitt, 2 Euss. & M. («) Arnot v. BIscoc, 1 Ves. S. 96 ; 23 Vict. c. 35. 
 
 72. and see 6 Ves. 193 ; Bowks v. Stuart, 
 
 (u) Davks X. Cooper, 5 Myl. & 0. 1 Sch. & L. 227 ; Craig v. Watson, 
 270 8 Beav. 427 ; but see also Tyke v. 
 
 (x) F//«< V. HV.(?//), 9 Ila. 621. Wchh, 11 Beav. 14, 16. See, in 
 
 {y) Adamson v. jEvitt, 2 lluss. & M. connection herewith, Wkitmorc v. 
 
 J\I((ck€si)n, 15 Beav. 12G. 
 
 i.i. 
 
 {z) Sug. 6. {b) 22 & 23 Vict. c. 35, s. 24. 
 
 VOL. I. H
 
 98 
 
 RELATIVE DUTIES OF VENDORS AND 
 
 Chap. TIT. 
 
 Sect. 1. 
 
 or his SDlicitor or agent, who conceals any settlement, deed, 
 will, or other instrument material to the title, or any incum- 
 brance from the purchaser (c), or Avho falsifies any pedigree, 
 on which the title does or may depend, in order to induce 
 him to accept the title, Avith intent to defraud, is guilty of 
 misdemeanour, and also liable to an action for damages, at 
 the suit of the purchaser or mortgagee ; but no prosecution 
 is to be commenced without the sanction of the Attorney- 
 General, or, if that office be vacant, of the Solicitor-General. 
 
 Inquiry 
 should be 
 made of 
 supposed 
 adverse 
 claimant. 
 
 We may also, in connection with the above head, observe, 
 that a purchaser suspecting that a third person has a claim 
 on the estate, should {(J), in the presence of witnesses (who 
 may take notes of what passes) {e), inquire of him whether 
 such be the fact, and the amount of the claim ; at the same 
 time stating his own intention to purchase (/) : and if such 
 person deny the existence of the claim, or assert that it is 
 confined to a special sum, he will, in Equity, be bound by 
 his denial or assertion (ry) : but, although bound to answer 
 truly, if at all, a mortgagee, it would appear, may decline to 
 answer, unless the intending purchaser offer to redeem 
 him (Ji). But it has been more recently held, that where 
 property cannot be obtained, without a particular person 
 saying whether he claims it or not, it is not sufficient that 
 he should hold his tongue, but he must state expressly 
 whether he claims or not (/). 
 
 Inquh-y aud 
 notice on 
 jjurchase of 
 equitable 
 estate. 
 
 So, if the interest contracted for Ije merely equitable, the 
 purchaser should inquire of the trustees in Avhom it is vested 
 whether there are any and what incuml trances ; and, on 
 completion, should give them notice of the sale ; and where 
 
 (c) The word " mortgagee " s in- 
 advertently omitted in the statute ; 
 see now 23 & 24 Vict. c. 38, s. 8. 
 
 (d) Sug. 7 ; Ibhottson v. Rhodes, 2 
 A'^ern. 554. 
 
 (c) Doe V. rerlins, 3 T. 11. 749 ; 
 Burrowjli . y . Martin, 1 Camp. 112; 
 Wood V. Cooper, 1 Car. & K. C45. 
 
 (/) 2 Vem. 554. 
 
 (ij) Pearson v. Monjan, 2 Bro, C. 
 C. 388 ; and see 6 Ves. 183, and 
 3 Ves. & B. 111. 
 
 (h) See Bur/den v. Bi<jnold, 2 Y. & 
 C. C. C. 390. 
 
 (/) Re Primrose, 3 Jur. N. S. 890, 
 where the stranger ^^'as visited with 
 costs.
 
 PURCHASERS PRIOR TO SALE. 99 
 
 an interest held nnder a derivative trust is purchased, the Cliap. III. 
 
 1 (- 1 • X j-i Sect. 1. 
 
 inquiry and notice should be made of, and given to, the . — 
 
 trustees of the original trust, if the property remains under 
 their control (/.•) ; and, though not aljsolutely necessary, it is 
 desirable that in every case the notice should be formal (/)• 
 Such inquiry and notice are advisable for the sake as well 
 of avoiding litigation with future, as of discovering the 
 existence of present, incumbrancers; but on the purchase Priority, 
 of an equitable estate in land, no priority is obtained 
 thereby (o)i). 
 
 Tlie trustees will be liable in Equity if they give false Trustee liable 
 
 for false 
 
 information, either fraudulently, or merely through forget- information, 
 fulness (n). 
 
 In every case the purchaser of a legacy should inquire Purchase of 
 
 •^ ^ . f. a legacy or 
 
 whether it is free from all claims and demands m respect oi fund in Court. 
 the testator's estate (o) ; and, where the fund is in Court, 
 the assignee should obtain a stop order, but this will not 
 give him priority over an incumbrancer, who has already 
 given notice of his charge to the trustees (j»>). The mort- 
 o-ao-ee of an undivided share of a fund in Court, who has 
 obtained a stop order on the fund, has priority over a sub- 
 sequent incumbrancer who obtains a stop order over the 
 share, after it has been carried over to a separate 
 account (q). 
 
 (2.) ^l.s to commendatory and other similar statements Section 2. 
 
 by rt vendor. As to com- 
 
 mendatory 
 
 It may be laid down, as a general rule, that mere expres- statements 
 
 , . ,. 1 1 i.1 i tiy vendor. 
 
 sions of praise or afhrmations of value, such as, that an ^^^^j^^^ ^^^ 
 estate, sold as a renewable leasehold, is " nearly equal to bound by 
 
 mere puri. 
 
 (i!) Bridge v. Bendon, L. R. 3 Eq. F. & Jo. 518 ; Ban-ij v. Crosl-aj, 2 
 
 G64. See Lee v. Hovdett, 2 K. & Jo. 531. Jo. & H. 1. 
 
 [I) Lloyd V. Baiil;^, L. R. 3 Ch. Ap. (o) Nohh v. BrcH, 24 Beav. 499. 
 
 448, overruling in effect Re Brovn's (p) Lkcsey v. IlanUnrj, 23 Beav. 
 
 Trusts, L. Pv. 5 Eq. 88. 141 ; Day v. Dny 1 Do G. & Jo. 144. 
 
 {m) Vide infra, Ch. XV. s. 2. See and consider Dearie v. JIall, 3 
 
 (??) Burrowcs v. Lock, 10 Ves. 470. Kuss. 1. 
 See too 8lim v. Crmichcr, 1 De G. (q) Lister v. Tidd,L. R. 4 Eq.462. 
 
 H 2
 
 100 
 
 RELATIVE DUTIES OF VENDORS AND 
 
 Chap. III. 
 Sect. 2. 
 
 freehold" (/•); that land, in fact imperfectly watered, is 
 " unconnnonly rich water-meadow land " («) ; or that a 
 house of mean character is " a desirable residence for a 
 family of distinction " (/) ; will not, however objectionable 
 they may be in point of morality, render the contract 
 voidable in Equity by the purchaser ; although their ten- 
 dency would doubtless be to indispose the Court to enforce 
 specific performance at the suit of the vendor. Thus, where 
 the lessor of a quarry stated that the limestone in it was 
 " fit for the London market," (an expression restricted in the 
 trade for lime of the best quality,) and it was in fact of a 
 very inferior description, it was held that this, though a 
 mci'e pufling statement on his part, was a bar to a decree 
 for specific performance (u). So an unti-uc statement by a 
 vendor, (though made in ignorance,) that the house which 
 lie Avas selling was not damp, was held fatal in Equity (./;•). 
 But in each of these cases there was an actual mis-statement 
 of facts : so also there was in the "water-meadow" case, the 
 decision in which would probably not now be followed. 
 
 Unless 
 iimounting 
 to mis-state- 
 ment of facts 
 
 And the rule, pei'liaps, extends to any statement by a 
 vendor, which is eipiivalent to a mere expression of his own 
 opinion, and docs not amount to an assertion of an inde- 
 pendent and ascertainable fact : such as, a statement on the 
 sale of an advowson, that an avoidance is " likely to occur 
 soon " (//) ; or on the sale of renewable leaseholds, that the 
 fine payable is " small " (z): if a purchaser choose to rely 
 on the vendor's opinion as to what is a small fine, or a 
 probability of speedy avoidance, he does so at his peril. 
 
 So where the purchaser is aware that the vendor's lauda- 
 
 wliich tlic 
 jiurcbaser dots 
 
 not know to tory statements are m fact untrue, and yet enters into the 
 
 be untrue. 
 
 (>•) Fenton v. Brown, 14 Yes. 144. 
 
 (s) Scott V. Hanson f 1 Sim. 13, sed 
 qucere. 
 
 (t) Mo'jennis v. Fallon, 2 Moll. 
 587. 
 
 («) Hl'jfjins V. Samels, 2 J. & H. 
 460. See this case as to the narrow 
 boundary which separates a puflBng 
 
 speculative statement from misrepre- 
 sentation ; and see further as to mis- 
 representation C'h. XIV. s. 6, & Ch. 
 XVIII. hifra. 
 
 (x) Sfranffi'di/s v. B!t>li02i, 29 L. T, 
 120. 
 
 (//) Trover v. j^euxome, 3 Mer. 704. 
 
 (r) Fenton v. Brown, 14 Ves, 144.
 
 PURCHASERS PRIOR TO SALE. 101 
 
 contract, the maxim " cairai emiAor'' applies: as where Chap. ill. 
 
 Sect ^ 
 
 jDroperty was (lescril)e(l as standing on " a fine vein . L~__„^ 
 
 of anthracite coal," and it was within the pnrchaser's 
 knowledge tliat it had l)een worked, and was almost 
 exhausted {<(). 
 
 And in the strong case of the vendoi- of an annuity what mis- 
 stating that the grantor (then in prison for del it and in- representation 
 
 o & \ i -vviU snstaiu 
 
 solvent) " was a man of large property," he Avas held not an action, 
 liahle to an action of deceit at Law (6) : hut this Avuuld 
 probably not be followed at the present day. 
 
 But, in Equity, where on the sale of a life interest, the Effect in 
 particulars described the tenant for life as a very healthy l^^^ity of 
 
 i J J mis-statement 
 
 gentleman aged forty-eight, whose life was insurable, and as to life 
 
 . being healthy 
 
 an nisurance was guaranteed at nve guineas jwr cent., and and insurable, 
 it turned out that the vendors had recently insured the life 
 at a rate less than five guineas iier cent., but exceeding the 
 rate usually charged on healthy lives, their bill for specific 
 performance was dismisse-d with costs, although the purchaser 
 admitted that he knew fi\'e guineas to Ije more than the 
 usual premiinn {<■). 
 
 So on a sale of iDroperty in lease, a reference to the As to cove- 
 existence of covenants beneficial to the reversion, but which, 
 to the vendor's knowledge, cannot be enforced, would pro- 
 bably be held to be deceptive {(1). So, on a sale of a rever- j^^ ^^ cesser 
 sion in property, sul)ject to an annuity, a condition that a '^'^ charge. 
 I'ecital in a former deed which stated that the annuity, — 
 described merely as " a life annuity," — had not been claimed 
 for twenty-one years, should be evidence of its having deter- 
 mined, whereas, in fact, the annuity was for four lives, and 
 was charged merely on the reversion, and was therefore not 
 claimable during the period referred to, was held to be unfair, 
 and void {e). 
 
 (a) Colby V. Gadsden, 34 Bear. 41rt. [d) Flint v. Woodin, 9 ITa. 021. 
 
 (6) Dawes v. King, 1 Stark. N. P, (c) DrysdnJe \.Mare, T. De O. M. & 
 
 C. 75. G. 103. 
 (c) Brealey v. t'oUins, Y<n\. 317.
 
 102 
 
 Chap. III. 
 Sect. 2. 
 
 Valuation 
 
 of estate by 
 surveyor. 
 
 Offer for 
 purchase by 
 third person, 
 
 RELATIVE DUTIES 07 VENDORS AND 
 
 And a false statement, hy a vendor, of an independent 
 fact, — -as, that the property has been valued by a surveyor 
 at a specified sum, — will, if relied on by the purchaser (/), 
 enable him to avoid the contract at Law and in Equity (<j) ; 
 and might, perhajj-s, sustain an action at Law Qt) : but a 
 vendor is not liable to such action for the false assertion that 
 a third person has offered a specified sum for the estate (i). 
 His statement, however, that he " will guarantee" a specified 
 income to arise from the property, although not amounting 
 to a contract, would, it appears, if made fradulently, support 
 an action for the tort (/i-). 
 
 The two former of the three cases last referred to seem to 
 be distinguishable ; for a purchaser might naturally consider 
 the opinion of a surveyor to indicate something like the 
 market value of the property, although he might be supposed 
 to attach little importance to the bare offer by an indi\ddual, 
 possibly made hastily, and soon repented of : though cer- 
 tainly, in the cited case, the purchaser seems to have been 
 directly influenced by the mis-statement : and such a mis- 
 statement would probably be a defence to a suit for specific 
 performance. 
 
 T^wii'ihufiK. ►^^'^^^And a false statement that a specified rent is paid for the 
 at Law. premises (/), has been held to subject the vendor to an action 
 
 at Law, although the purchaser did not rely on his statement, 
 but made inquiries of other persons; who, it is presumed, 
 also deceived him. Nor, in a case of fraud, is the action 
 necessarily barred hy the fact of his having paid the 
 purchase-money in a suit for specific performance (m). 
 
 Stranger when 
 liable for 
 mis-statement. 
 
 And the same liability is incurred by a stranger, who, 
 
 (/) See Clapham v. ShlllUo, 7 Beav. 
 14G. 
 
 (g) Buxton v. Lister, 3 Atk. 386 ; 
 Small V. Attwood, 1 You. 407 ; Att- 
 woocl V. Small, 6 CI. & F, 232 ; Pur- 
 tridfje v, Usborne, 5 Unas. 195 ; Sug. 
 4 ; Lord Brooke v. Rounthwalte, 5 IJa. 
 298 ; Pike v. Vi(/ers, 2 Dru. & Wal. 
 1, 150, 
 
 (/() Powell V. Edmunds, 12 East, 11. 
 
 (0 Sug. 2 ; 1 Rolle's Abr. 101, 
 pi. 16. 
 
 {h) Gerhard v. Bates, 2 El. & B. 
 476. 
 
 (/) Lynseij v. Selh]], Lord Eaym. 
 1118; see Dobell v. Stevens, 3 B. & 
 C. G23 ; Wilson v. Fullm; 3 Q. B. 68. 
 
 (m) JeudwincY, Slade, 2 Esp. 573,
 
 PURCHASERS PRIOR TO SALE. 103 
 
 even from more wantonness, intending to deceive, altliong]i Chap. III. 
 
 without any view to gain, makes a false rejDresentation to ___^^!llJ!^_ 
 
 a purchaser as to the vahie or rent of tlie propeity : noi- is 
 
 it material that the sah; is b}^ auction instead of private 
 
 contract (/?). Lord St. Leonards says (o), citing Sir W. Grant, 
 
 " In cases of this nature it will be suflicicnt to show, 1st, that 
 
 the fact as represented is false ; 2ndly, that the person 
 
 making the representation had knowledge of a fact contrary 
 
 to it" (i>). The rule is more broadly laid down by Mansfield, 
 
 C. J., who says, that " it signifies nothing whether a man 
 
 represents a thing to be difi'erent from wdiat he knows it to 
 
 be, or whether he makes a representation which he does not 
 
 know at the time to be true or false, if in point of fact it 
 
 turns out to be false" (q) : and the better oj^inion seems to 
 
 be, that, in order to sustain an action at Law, it is sufficient 
 
 to show actual fraud ; consisting in either an assertion, (with There must 
 
 or without motive,) of what the party knows to be false (/•), fraud; soalk. 
 
 or a comnnmication, for a deceitful or fraudident purpose of 
 
 that which is in fact false, and wdiich, although he may not 
 
 know it to be fahe, he represents himself as knowing to be 
 
 true (.s). 
 
 And it has been recently held at Law, that where a man, 
 by his words or conduct, wilfully causes another to believe 
 in the existence of a certain state of things, and induces him 
 to act on that belief, so as to alter his previous jDosition, 
 the former is concluded from averring against the latter a 
 cliflTerent state of things as existing at the same time (/). 
 
 (n) I]ardell\.Sp!nks,2Ca.TAK.Gi6. and 2 Smith's L. C. 71; Oascoyne's 
 
 (<)) Sug. 4. rase, cited Doug). 632 ; Poircll v- 
 
 (jt) Burrowes v. Loci; 10 Ves. 476 ; Edniunds, 12 East, 6, 11 ; Foiftcr v. 
 
 Zrt/l-e V. i?rM«on, 8 DeG.M.&G. 440. Charles, 6 Bing. 396; Corbett v. 
 
 {q) Schneider v. Heath, 3 Camp. Brown, 8 Bing. 33 ; Polhill v. Wal- 
 
 506 ; and see 1 Bro. C. C. 546 ; 3 ter, 3 B. & Ad. 114 ; Shreivshimj v. 
 
 Ves. & B. \l\,&wA Pearson Y. Morgan, Blount, 2 Man. & G. 475 ; Freeman 
 
 2 Bro. C. C. 388. v. Coolc, 6 Dow. & L. 187 ; Taylor 
 
 (?') See Lord Campbell's judgment v. Ashton, 11 M. & W. 401 ; Evans v. 
 
 in Wilde v. Cnhson, 1 H. L. C. 633, Edmonds, 13 C. B. 786 ; Milne v. 
 
 and cases cited infra, n. (s) ; Watson Marioood, 15 C. B. 781. 
 
 V. Poulson, 15 Jur. 1111, Exch, (<) Pickard v. Sears, G Ad. & E. 
 
 (s) See Adamson v. Jarvis, 4 Bing, 469, 474. See, too, She2)hcrd v. Gil- 
 
 66 ; rashj v. Framan, 3 T. R. 51 ; les^ie, L. R. 5 E(|. 293,
 
 104 
 
 RELATIVE DUTIES OF VENDORS AND 
 
 Chap. III. 
 Sect. 2. 
 
 Must in 
 Equity make 
 good his 
 misrepresen- 
 tation. 
 
 And in Equity, where a stranger has by such a fraudulent 
 misrepresentation induced a pai-ty to enter into the contract, 
 the Court will compel him to make good his misrepresenta- 
 tion to the best of his ability (u) : and conduct which is 
 calculated to induce a false belief as to the actual facts, may, 
 if relied on, amount to a fraudulent misrepresentation, even 
 though there may have been no intention to deceive ; as e.g. 
 where, on full information being required, documents, which 
 are known to l)e insufficient, are furnished as containing 
 it (.r). 
 
 Guarantee of 
 Hiilvency must 
 he in writinu'. 
 
 A representation that a man is able to answer an obliga- 
 tion is not T)inding unless in writing (//). 
 
 Rescinding 
 contract in 
 Equity. 
 
 Where either of the parties to the contract has procured 
 the other to enter into it by means of a misrepresentation 
 or concealment, which a Court of Equity considers to bo 
 actually fraudulent, (z) it will not merely decline to enforce, 
 but will even rescind, the contract (((), unless, it seems, the 
 
 (u) PuUford V. Richards, 17 Beav. 
 95. 
 
 {x) Conylcare t. Xcio Brunswiclc, 
 ttc, R. Co., 1 De G. F. & Jo. 578. 
 New Brunswicl, lic, R. Co. v. Murj- 
 geridfje, 1 Drew. & Sma. 363, which 
 see as to what concealment or ambi- 
 guity will amount to misrepresenta- 
 tion. 
 
 {y) 9 Geo. IV. c. 14, s. 6 : .see Has- 
 lock V. Fcrr/usson, 7 Ad. & El. 86; 
 Swann v. PhUlips, 8 Ad. & El. 457 ; 
 Devaux v. Steinkeller, 6 Bing. N. C- 
 84 '(representations of the credit of 
 a firm, by a partner) ; and see Seniple 
 V. Pinl; 1 Exch. Rep. 74 ; 16 L. J. 
 N. S. 237; and see now 19 & 20 
 Vict. c. 97, s. 3. 
 
 (-) As to what fraud is sufficient to 
 evoke the interference of the Court, 
 see Torrance v. Bolton, L. R. 14 Eq. 
 124 ; affirmed, L. R. 8 Ch. Ap. 118 ; 
 see p. 124, where Lord Justice James 
 lays it down that the Court will 
 interfere " where it j.-^ unconscientious 
 
 for a person to avail himself of the 
 legal advantages which he has 
 obtained " by his misrepresentation or 
 concealment. 
 
 («) See J'urner v. Harvey, Jac. 
 169 ; Edwards v. M'Leay, Coop. 
 308 ; Berry v. Armistead, 2 Ke. 221 ; 
 Lorell V. Hlclcs, 2 Y. & G. 46 ; Stain- 
 hanh V. Fernley, 9 Sim. 556 ; Athcood 
 V. Small, 6 CI. & F. 232, 395, 444 ; 
 Gibson V. B'Este, 2 Y. & C. C. C. 
 542; Wilde v. Gibson, 1 H. L. C. 
 605, 635 ; Beynell v. Sprye, 8 Ha. 
 222 ; 1 De G. M. & G. 660 ; PuUfovd 
 V. Richards, 17 Beav. 95 ; Jenainys 
 V. Brourjliton, 17 Beav. 234 ; 5 De G. 
 M. & G. 126, affirmed 23 L. J. 999 ; 
 Bartlett v. Salmon, 6 De G. M. & G. 
 33 ; 1 Jur. N. S. 277 ; Conybeare v 
 Kcw Brunswick R. Co., 1 De G. F. & 
 Jo. 578;iVe!t' £i-unsivicl:,d;c., R. Co. v. 
 Muggendfje, 1 Drew, and Sma. 363 ; 
 Torrance v. Bolton, L. R. 14 Eq. 124; 
 affirmed L. R. 8 Ch. Ap. 118.
 
 PURCHASERS PRIOR TO SALE. 105 
 
 party defrauded elect to have the misrepresentation made Chap. III. 
 
 good (/>) : and, in a suit hy a purchaser, will direct his 'Jl — 
 
 deposit to be returned, and declare a lien for it on the 
 property (c) : but it cannot award damages by way of com- 
 pensation to the plaintiff under its general jurisdiction ((l) : 
 nor does Lord Cairns' Act, 21 & 22 Vict., c. 27, apply to 
 a case where the suit is not for the specific performance, but 
 for the rescission of the contract ; but it is conceived that 
 under the Supreme Court of Judicature Act, 1873, when 
 such Act comes into operation, not only may the contract be 
 rescinded on the ground of misrepresentation, but in an 
 appropriate case damages also may be awarded by way of 
 compensation to the plaintift*. 
 
 How voidable 
 contract may 
 
 A voidable contract may be set up by a subsequent con 
 firmation, or even by mere waiver or abandonment of the be set u\ 
 right to rescind it (/') ; but the confirmation must' be clear, 
 amoiniting, in fact, to a new contract by reference to the 
 terms of the original contract, when such original con- 
 tract is tainted with actual fraud (/). But in the alxsence 
 of fraud, the Court Avill not entertain a suit for the delivery 
 and cancellation of the contract, except perhaps in cases 
 where to allow it to remain in the defendant's possession 
 might prejudice the plaintiff's title (g). 
 
 If the vendor procure payment of a deposit from the pur- ye^^or's 
 
 i- ^ ^ ^ _ liability for 
 
 chaser, by means of a false and fraudulent representation as obtaining 
 to the state of the property, he may, it seems, be convicted fXT^ '^^ 
 of obtaining money Ijy false pretences (h). 
 
 (h) BmvUns v. WicMiam, 3 De G. & Attn-ood v. SnuiU, C> CI. & F. 424, 432 ; 
 
 Jo, 304. Flint v. Woodhi, 9 Ha. G18. 
 
 (c) Torrance v. Bolton, uhi supra. (/) De Montmorency v. Devereux, 
 
 (J) See Gmllha v. Stone, 14 Ves. 7 CI. & F. 225, 230, vide suprd, p. 49 
 
 US; a,m\ Sainshuruv. Jones, Hsiyl.Sc (f/) Onions y. Cohen, 2 H. & M. 
 
 C. 1. 354 ; and see the V. O.'s remarks on 
 
 (e) See Cok v. Glhhons, 3 P. Wm.s. O'wiUim v. Stone, 14 Ves. 128. 
 
 290 ; Chesterfield v. Janssen, 2 Ves. (Ji) Rcrj. v. Burf/.m, 2 Jur. N. S. 
 
 S. 125; i»/om r. 7?o//«/, 12 Ves. 355 ; 590, ca,se of mortgagee; lier/. v, 
 
 Jioche V. O'Brien, 1 Ba. & B. 355 ; Rochncl; ih. 597. 
 Camphdl V. Flcmii.g, 1 Ad. & E. 40 ; 
 
 pre- 
 tences.
 
 IOC 
 
 Chap. III. 
 Sect. 2. 
 
 Misi-epre- 
 sentation by 
 a public 
 company. 
 
 PvELATIVE DUTIES OF VENDORS AND 
 
 The same rules as to false or deceptive statements, which 
 are applicable to a contract between individuals, have an 
 equal application to a contract between an individual and a 
 pul>lic company. If a person has been induced to take 
 shares in a company by means of a fraud, which is in point 
 of law the fraud of the company, he may repudiate the 
 shares as between himself and the company, though as 
 regards creditors he will still, under the present system of 
 windino- up, be liable to be placed on the list of contribu- 
 tories (/)■ The right, however, to be relieved of shares on 
 the ground of misrepresentation in the prospectus, may be 
 lost by slight delay or acquiescence (/.•). 
 
 Innocent 
 misrepresen- 
 tation Ijind.s 
 in equity. 
 
 And in Equity a misrepresentation, although made in per- 
 fect o-ood faith, if made in order to induce others to act upon 
 it, or under circumstances in which the party making it may 
 reasonably suppose that it will be acted on, 2^r'niid facie 
 binds the party making it, as between himself and those 
 whom he has thus misled {I). 
 
 Sect. 3. 
 
 As to con- 
 ceabnent, &c., 
 by pm'chaser, 
 He need not 
 disclose con- 
 cealed ad- 
 Yantao;es. 
 
 (3). As to concealment and clisclosure of advantages hy the 
 'purchaser. 
 A purchaser need not disclose any fact, unknown to the 
 vendor, which increases the value of the property itself; e.g., 
 the existence of a mine (m) ; or the existence of negotiations 
 for an advantageous sale of part of a mortgaged estate, sup- 
 posed to be a short security, upon the purchase by the first 
 morto-agee of a previous charge for less than its nominal 
 value {n). Where, however, the owners of a colliery entered 
 into a contract with an adjoining landowner for the purchase 
 
 (i) Central R. Co. of Venezuela v. 
 Kisch. L. K. 2 E. & Ir. App. 99 ; He 
 Reese River Mining Co. L. R. 2 Ch. 
 Ap. 604, 609 ; Ross v. Estates Invest- 
 ment Co., L. E. 3 Eq. 122 ; L. E. 3 Ch. 
 Ap. 682 ; re Estates Investment Co., 
 McNielVs case, L. K. 10 Eq. 503. 
 
 (i) In Hci/mann v. European Cen- 
 tral R. Co., L. E. 7 Eq. 154 ; Scholey 
 T. Central R. Co. of Venezuela, L. E. 
 
 9 Eq. 266 («)• 
 
 {I) West V. Jones, 1 Sim. N. E. 
 205, 208;i4«.-(?e«. v. Stephens, 1 K.& 
 J. 748. 
 
 (?«) 2 Bro. C. C. 420 ; Jac. 178 : 
 see and consider our Lord's parable 
 of the treasure hid in a field, Matt, 
 c. xiii. 44. 
 
 (n) Dolman v. Nokes, 22 Beav. 402,
 
 PURCHASERS PRIOR TO SALE. 107 
 
 of his estate without disclosing the fact, of wliich he was Chap. ill. 
 
 ignorant, that they had without authority got a considerable ' 
 
 quantity of coal from under it, the Court in a suit by the 
 purchasers refused to enforce the contract, although there 
 was no proof of undervalue ; and, in a suit by the landowner, 
 held that he was entitled to the value of the coals got from 
 under his land (o) ; and the case was attempted to be distin- 
 guished from those which we have just been considering on 
 this ground, viz., that where a person, having committed a 
 serious trespass on his neigldjour's land, proposes to buy it 
 so as to screen himself from the consequence of his own 
 wrongful act, the proposal which he makes is not a simple 
 proposal for the purchase of the property, but involves a 
 buying up of rights which the owner has acquired against 
 him, and of which the o"v\nier is not aware (2>) ; but whether 
 the distinction rests on any solid ground seems doubtful. 
 
 But anything, even a mere word, which tends to mislead But must not 
 the vendor upon such a point, Avill deprive the purchaser of vendor. 
 the assistance of a Court of Equity iq) ; and would, it is 
 conceived, be a fraud, avoiding the contract at Law, at the 
 election of the vemloi'. 
 
 And a purchaser is bound, in Equity, to disclose any fact, Nor < 
 
 , . , . , . . . . fact increasins: 
 
 interest. 
 
 conceal 
 unknown to the vendor, which increases his interest in the vendor's 
 property ; e.g., the actual (r), or imndnent (s) death of a prior 
 life tenant : and the same rule has prevailed at Law, upon 
 the sale of a life policy (t). 
 
 (4). As to depvec'udory reraarhs, d'c, hy the imrchaser. Section 4. 
 
 As to de- 
 
 A purchaser who has misrepresented the property to a predatory 
 third person desirous of purchasing it, cannot enforce the by purchaser! 
 
 Their effect 
 in Equity ; 
 (o) PldlUps V. Ilomfnty, L. K. 6 (contract rescinded) ; and see Davies 
 Ch. Ap. 770 ; scd. quarc. v. Cooj^o; 5 JEyl. & C. 270. 
 
 ip) See Lord Hatherley's judg- (s) Ellard v. Lord Llandaff, 1 Ba. & 
 
 ment, p. 779. B. 211. 
 
 iq) Jac. 178. (0 /""« V. Kcenc, 2 Moo. & R. 
 
 {?•) Turner v. Ilarvoj, Jac. 1G9 348.
 
 108 
 
 RELATIVE DUTIES OF VENDORS, ETC. 
 
 Chap. III. 
 
 Sect. 4. 
 
 and at Law. 
 
 Slander of 
 title by 
 stranger. 
 
 Agreement 
 with, not tii 
 bid aL;ainst, 
 legal. 
 
 Effect of 
 written 
 agreement on 
 preliminary 
 negotiations. 
 
 contract in Equity (a) : so, at Law, when a purchaser, T)y his 
 statements in the sale room, prevented others from bidding, 
 the sale was held voidable by the vendor (.r). 
 
 A purchaser, howe\'or, is not liable to an action at Law 
 for having depreciated to the vendor the value of the pro- 
 perty, or its chance of sale (//) : noi' will an action lie against 
 a stranger for preventing a sale 1 )y giving notice of his claim 
 upon the estate, unless it be shown that such notice was 
 given maliciously (z) : and, in any case, in order to support 
 an action for slander of title, the plaintiff must prove false- 
 hood, malice, and special damage (a). If the defendant 
 acted hondjide, the action cannot be maintained, although a 
 man of sound sense and a knowledge of business would not 
 have uttered the slander {h). . 
 
 It appears that an agreement between two persons, not to 
 bid against each other at an auction, is legal ; and forms a 
 valual)le consideration for an agreement giving to the party 
 withdrawing his opposition at the auction a right of pre- 
 emption over other property (c) ; and such an agreement has 
 been held valid, where the sale was made by order of the 
 Court {d). 
 
 It may be remarked, that, when a written agTeement 
 l)etween the parties has once been signed all previous 
 representations, unless fraudulent {e), become immate- 
 rial (/) ; except for the purpose of defence in Equity (g), or 
 of rebutting a defence, and so maintaining the written 
 contract. 
 
 (t/) Howard v. Hoplins 2 Atk. 
 371 ; Buxton v. Lister, 3 Atk. 383, 380. 
 
 (a;) Fuller v. Abrahams, 3 Bro. & 
 B. 116 ; and see 3fason v. Armitagc, 
 13 Ves. 38. 
 
 (y) Vernon v. Keys, 12 East, 632 ; 
 see p. 638. 
 
 (,r) See Hargrave v, Le Breton, 4 
 Burr. 2422 ; Makichy v. Soper, 3 
 Ding. X. C. 371, 382 ; Blarlham v. 
 Purjli, 2 C;. B. Gil, 620, 624 ; Pater v. 
 Baler, 3 C. B. 831. 862, 868; Sng. 357. 
 
 (a) Brook V. Raid. 4 Exch. .'^*21 ; see 
 B'lfjnell V. Buzzard, 3 Hnrl. & N. 217. 
 
 Qj) Pitt V. Donovan, 1 M. & S. 639. 
 
 (c) Galton V. Emuss, 1 Coll. 243. 
 
 (<7) Re Carew's Estate, 4 Jur. N. S. 
 1290. 
 
 (e) Supra, sect. 1. 
 
 (/) Piclering v. Dowson, 4 Tannt. 
 778, 783 ; Knifjht v. Barber, 16 M. & 
 W. 69, 70. 
 
 (g) JIaynes v. Hare, 1 H. Bl. 664.
 
 109 
 
 CHAPTER IV. Chap. IV. 
 
 AS TO PARTICULARS AND CONDITIONS OF SALE. 
 
 1. General matters relating to partleiihtrs Oyiid eondltlons, 
 and their constviiction. 
 
 2. Prej)aration and contents of particidars. 
 
 3. As to conditions. 
 
 4. As to ivha.t special conditions are (jenerallij requisite 
 in various specified cases. 
 
 5. General remarks on special conditions. 
 
 (1.) Particulars and conditions of sale, if intended t(j Section 1. 
 
 exclude the purchaser from that to which he would other- Doubtful 
 
 wise be entitled, must be expressed in terms most clear and P^^^'j.^ons"' 
 
 unambiguous (a.) ; if there be any chance of reasonable and contracts 
 
 o ^ / ' ^ ^ construed 
 
 d(jid)t or nusapprehension as to their meaning, the con- strictly 
 struction will be in his favour (6). And the same principle "^'nckj.. 
 of construction, as regards questions of title, applies as well 
 to private contracts for sale and purchase, settled on behalf 
 of both parties, as to ordinary conditions for sale by auction, 
 which, of course, are settled exclusively on behalf of the 
 vendor (c). 
 
 But o-eneral expressions may not, it seems, be so read by ^^ut not so as 
 
 *:> i- -J ^ to contravene 
 
 a pui'chaser as to make them contravene a well known rule rule of law or 
 of law, or universal custom, if they be capable of bearing a 
 
 (a) Si/mons v. James, 1 Y. & C. C. v. WJdlehead, 28 Beav. 151 ; Swais- 
 
 C. 490. f'tnd V. Dearsley, 29 Beav. 430. 
 
 (&) /S. C. ; Tcn/Ior v. Martindale, ih. (c) Rhodes v. Ibhetson, 4 De G. 
 
 661 ; Scaton v. Mapj^, 2 Coll. C. C. M & G. 787; BuJkcleij v. IIope,l Jur. 
 
 562 ; NouaiUe v. FliyJit, 7 Beav. .521 ; N. S. 864 ; and see as to vague condi- 
 
 Smith V. EUts, 14 Jur. 682 ; Graves v. tions, l'a>/lor v Gilbcrtson, 2 Dre. 891 ; 
 
 Wdson, 25 Beav. 290 ; Brumfit v. Cruse v. Novxll, 2 Jur. N. S. 536. 
 MortoiijZ Jur. N. S. 1198 ; JarJcson
 
 110 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 1. 
 
 universal 
 custom. 
 
 modified meaning ; as where the particidars stated tliat the 
 fines of a manor about to be sohl were arbitrary, it was, in 
 the opinions of Lords Campbell and Brov<j]t<im, no misde- 
 scription, Avhen it was shown that (the fines on alienation 
 being arbitrary,) those on the admission of a widow to free- 
 bench were certain ; inasmuch as such latter fines never are 
 arbitrary (J). 
 
 And may bind 
 jnu'cliaser 
 whose atten- 
 tion is 
 directed to 
 their objec- 
 tionable 
 character. 
 
 And conditions such as would not, under ordinary circum- 
 stances, be enforced in E(|uity, may bind a purchaser if his 
 attention be drawn to their objectionable nature before he 
 buys ; as where, upon a sale under catching conditions as to 
 title, he inquired, " whether a good and marketable title 
 could be made ? " and the auctioneer and vendor's solicitor 
 refused to insert any such statement in the contract, but said 
 that a good title could be made under the exisfivcj conditions, 
 the purchaser was held to his bargain (eY 
 
 Vendor's 
 undertakings 
 in, strictly 
 construed. 
 
 Any undertaking on the part of the vendor will, it is con- 
 ceived, as a general rule, be construed strictly in favour of 
 the purchaser ; in fact, where, in an agreement for a twenty- 
 one years' lease of a house in Highbury Place, it was stipu- 
 lated, that there should 1)0 a " covenant by lessor for qui(;t 
 enjoyment by the tenant, and not to let any of the land 
 near Highbury Place, for the purpose of making and burning 
 bricks," it was held by V.-C Wigram, that the lessor must 
 show his title to bind the adjoining land by such a covenant 
 during the proposed term ; although it appeared, on the face 
 of the agreement, that the lease was to be granted under a 
 power contained in a will (/) : but this decision was 
 reversed by Lord CotfenJiam (g). 
 
 Cannot be 
 affected by 
 verbal de- 
 clarations : 
 
 As a general rule, the particulars and conditions cannot be 
 contradicted, explained, or added to, by any verbal declara- 
 tions at the time of sale {It) : evidence of such declarations 
 
 {tl) White V. Cuddon, S CI. & F. : 
 see pp. 786 and 796. 
 
 (e) Hyde v. Dallaway, C Jur. 119 ; 
 4 Beav. 606. 
 
 (/) Dawes V. Belts, 12 Jur. 412. 
 (!j) S. a, 12 Jur. 709. 
 (h) 1 Jac. & W. G39; Sug 1.5; 
 Hifff/inson v. CToj'Ts, 15 Ves. 521 ; and
 
 PARTICULARS AND CONDITIONS. Ill 
 
 is inadmissible at Law on l)ehalf of citlicr plaintiff or de- Chap. IV. 
 fendant (/), and in E(|uity on Ijehalf of the plaintiff; even 
 
 although the defendant (the purchaser) have agreed in ^^JjfpP^^^f 
 
 to abide by the conditions and declarations at the sale (A') ; defence in 
 
 . , E<iuity. 
 
 but in Equity such evidence is aduiissiblc for the purposes 
 
 of defence (/). 
 
 And the same rules apply between the original purchaser Case of sub- 
 purchaser, 
 at a sale, and his sub-purchaser (m). 
 
 When the auctioneer has, at the sale, made verbal deck- Verbal decla- 
 
 • 11 J • 1 c 1 rations at 
 
 rations at variance with the particulars, ls:c., a purchaser ^ale. 
 would seem to be under this disadvantage ; viz., that if the 
 Court were clearly satisfied that he heard and understood 
 the effect of the verbal declarations, he probably would not 
 obtain a decree for specific performance wltltout the varia- 
 tions, supposing them to be to his prejudice (7?) ; nor, on the 
 other hand, could he enforce specific performance ivWt the 
 variations, supposing them to be in his favour : a purchaser 
 buying under such circumstances, should have the requisite Should be 
 
 1 • 1 • ,^ • , t ;•! -\- L- reduced into 
 
 alterations made 111 tJie printed particulars or conditions writing, 
 before the agreement is signed by himself and the vendor : 
 although, in cases where the vendor is selling under a power 
 or trust, this might occasionally give rise to questions with 
 the parties beneficially interested. 
 
 But any particular personal information given to the inir- I'articular 
 
 ^ . . information 
 
 chaser, as to incumbrances, or the title, or even declarations to purchaser, 
 
 see Manser v. Bad-, G Ha. 443 ; Goss 29 Beav. 430, where evidence of these 
 
 V. Lord Nvrjcnt, 5 B. & Ad. 58 ; 2 declarations appears to ha\e been im- 
 
 N. & M. 28. properly admitted on behalf of the 
 
 (/) See Gniw'ts v. Erltart, 1 H. Bl. ijlairdiff. 
 
 289 ; Greaves v. Ashlln, 3 Camp. 426 ; (/) Simisland v. DcarsJcy, 29 Beav. 
 
 Ford V. Yates, 2 Mann. & G. 549 ; 430. 
 
 Edenv.BlaJce, 13 M. & W. 614, 617 ; {m) Shelton v. Lhius, 2 Cr. & J, 
 
 vide infrd, Ch. XVII. ; Fovxll v. 411. 
 
 Edmunds, 12 East, 6. (n) Gunnls v. Erhart, supra. ; see 
 
 (k) Ilifjyinson v. Clours, 15 Ves. Pcmher v. Mathers, 1 Bro. C. C. 52 ; 
 
 521 ; /criX-inso/iv. Pf^)?/.?, cited 15 Ves. infra, Ch. XVIII.; O'jilvie v. Fol- 
 
 521 ; Clowes v. Ilirjcjhison, 1 Ves. & JaHi^r, 3 Mer. 53; Woodward v. Miller, 
 
 B. 524 ; Fife v. Clayton, 1 C. P. C. N. 2 Coll. 279 ; Sug. 16 ; Farebrothcr v. 
 
 11.352. JiMt see Sicaislandv. Dcarsley, Gibson, 1 De. G. & Jo. 662.
 
 112 
 
 TARTICULARS AND CONDITIONS. 
 
 Chap. IV. on such points by the auctioneer, may be given in evidence 
 Sect. 1. y^^ vendor or purchaser as a defence in a suit for specihc per- 
 
 &c., a defence fonnance accordinp- to the particulars, &c. ; but, as a general 
 
 in Equity. ^ t i • • • / n 
 
 rule, do not seem to be admissible on behalf of the plaintiff (o). 
 But in one case where a house was described in the particular 
 as in the occupation of an insurance company under a lease, 
 parol evidence was admitted on behalf of the plaintifl' to show 
 that prior to the sale the defendant, the purchaser, was in- 
 formed that the lease was granted not to the company, but 
 to trustees for them (p). 
 
 Alteration 
 of copies, and 
 unaltered 
 copy signed. 
 
 Sale " with- 
 out reserve : 
 
 In Equity 
 
 Where an alteration was made in the printed particulars, 
 and the altered copies were first produced in the auction-room 
 on the morning of sale, and the auctioneer, having I'ead and 
 sold by an altered copy, inadvertently signed agi'eements 
 indorsed on unaltered copies, it was held, that a purchaser 
 could not enforce specific performance according to the par- 
 ticulars as originally published ; although it did not appear 
 that he had heard the auctioneer read the altered copy, or had 
 any knowledge of the alteration {q). 
 
 A recent statute (/•) has made it unlaAvful, in every case 
 where a sale is stated to l)e without reserve, for the vendor to 
 employ a person to bid at the sale, or for the auctioneer to 
 take knowingly any bidding from such person. Prior to this 
 enactment if the sale was stated to be made "without reserve," 
 the employment of a bidder to protect the estate («), or any 
 private arrangement equivalent to a reserved bidding (t), 
 would have vitiated the sale in Equity : but it was generally 
 considered that where the sale was not expressly made "with- 
 out reserve," a single bidder was allowable in Equity to pre- 
 vent a sale at an undervalue. But in a late case (n), the 
 validity of this practice, and the authority on which it was 
 supposed to rest, were both questioned. At Law, after a 
 
 (o) 15 Ves. 523 ; 1 Ves. & B. 524. 
 ip) Farchrotker v. Gibson, 1 De 
 G. & Jo. 602. 
 
 (q) Manser v. Bark, 6 Ha. 4i3. 
 
 (;•) 30 & 31 Vict. c. 48. 
 
 (s) Meadous v. Tanner, 5 Madd. 34 ; 
 
 assumiii^^ of course, that the bidder acts. 
 
 {t) Robinson v. Wall, 10 Beav. 61 ; 
 2 Ph. 372. 
 
 ((/) Moriiiiicr v. BcU, L. 11. 1 Ch. 
 Ap. 10, 14, 16, and vide infra, Ch. 
 V. s. 5.
 
 PARTICULARS AND CONDITIONS. 113 
 
 considerable fluctuation of the authorities, the doctrine was Chap. IV, 
 
 carried still further than in Equity; and in the absence of ' 
 
 a stijDulation, expressly reserving the right, the employment 
 of a single pufler would have vitiated the sale (a:). The 
 recent statute has put an end to this conflict between the 
 rules of Law and Equity ; and has provided that the par- 
 ticulars or conditions of sale by auction of any land shall 
 state whether such land will be sold without reserve, or 
 subject to a reserved price, or whether a right to bid is 
 reserved (y). The omission of such a statement from the 
 particulars or conditions is not provided for, but it is 
 conceived that in such a case the sale would be treated as 
 without reserve. 
 
 The provisions of the Act, it will be observed, are ex- 
 pressed in the alternative ; but it seems that on the same sale, 
 not only may a reserved price be fixed, but a right of 
 bidding may be also reserved (s). Where however the sale 
 is made "sulrject to a reserved bidding," a person cannot be 
 employed to bid up to the reserved price, unless the right to 
 do so is expressly stipulated for (a). 
 
 A person not a party, but consenting to the sale, may Rights of 
 be bound by statements in the conditions or particulars ^ow bounc 
 derogating from his rights over other property (6). 
 
 (2). As io the '[)rcx)andion and contents of the ]xirtkidars. Section 2. 
 
 The paiticulars should lairl}- and accurately (c) describe the p)escription 
 estate: if, although orammatically correct, they are so obscure i,"'. *" ^^1 
 
 ' *= *= y 'J fair and 
 
 as to be likely to deceive an ordinary purchaser, the sale will clear. 
 
 (x) See Thomett v. Haines, 15 see as to "land" the iuterpretatiou 
 
 M. & W. 371, 372, and Mortimer \. clause. 
 
 Bell, suprd, where Lord Cranworth (z) GUIiuU v. Gilliutl, L. E., 9 Ecj. 
 
 treats the nile as well settled ; and CO. 
 
 vide infra, Ch. V. s. 5 ; and cases (a) GiUiatt v. Gilliatt, nhi suprd. 
 
 there cited ; and 30 & 31 Vict. c. 48, {b) Wood v. Mcnlcy, 11 Ad. & E.34. 
 
 sect. 4. (f) See Culrerloj v. Williams, 1 
 
 (v) 30 & .31 Vict. c. 48, sect. 5, and Ves. J. 210, 213. 
 
 vol/. 1. I
 
 114 
 
 I'ARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 2. 
 
 be liable to be set aside (</): nor is it siifticient for them 
 merely just to tell what is not actually untrue, omitting a 
 great deal that is true, and leaving the purchaser to ascertain 
 the existence of any error or omission ; but they should de- 
 scribe everything which it is material for him to know in 
 order to judge of the nature or value of the property (e): 
 and the vendor, before he sells, is bound to make himself 
 acquainted with its peculiarities and incidents (/), so far as 
 may be necessaiy in order to avoid serious error in the 
 description : and a plan if referred to in aid of the description 
 should be perfectly accurate ; thus where the sale plan 
 showed what was an apparent, but not the real boundaiy 
 of the property, and a personal inspection by the purchaser 
 failed to correct the misapprehension caused by the plan, 
 the vendor's bill for specific performance was dismissed ((j). 
 On the sale of a partial interest, any substantial {h) variation 
 from the description Avill, at Law as in Equity, render the 
 contract voidable {{). 
 
 What Parti- 
 culars should 
 state. 
 
 It is the proper office of the particulars to describe the 
 subject-matter of the contract, and of the conditions to state 
 the terms on which it is sold {j) ; and the omission from the 
 particulai^ of some fact which ought to have been stated 
 there will not necessarily be remedied by a statement of it, 
 however explicit, in the conditions ; unless of course it can be 
 shown that the purchaser's attention was expressly directed 
 to it. Thus, where a printed pai'ticular described the pro- 
 perty as an immediate absolute reversion falling into 
 possession on the death of a lady aged 70, and it appeared 
 
 ((/) Tai/lor V. MaHindalc, 1 Y. & C. 
 C. C. 658 ; Symons v. James, ib. 490 ; 
 Martin v. Cotter, 3 J. & L. 496 ; 
 Swaisland v. JJearshy, 29 Beav. 430 ; 
 as to annual value, see Loxcndcs v. 
 Lane, 2 Cox, 363 ; and White v. 
 Cuddon, 8 CI. & F. 766 : and as to a 
 deceptive statement as to occupancy, 
 Lachlan v. Reynolds, Kay, 52. 
 
 e) Baskcomh v. BcclicitJi, L. R. 8 
 Eq. 100. 
 
 (/)See BrandliiiQ \. Plummer, 2 
 
 Dre. 430. 
 
 {[/) Denny v. Hancock, L. R. 6 Ch. 
 Ap. 1. 
 
 (h) See Bclicortk v. IlasscU, 4 Camp. 
 140 ; and in Equity, Vl'jnoUes v 
 Boioen, 12 Jr. Eq. 194. 
 
 (t) See Thompson v. Miles, 1 Esp. 
 184; Farrer v. N iyhtingal, 2 Esp. 
 639 ; Hearnc v. Tomlin, 1 Peak. 253 J 
 Hihbert v. Shec, 1 Camp. 113. 
 
 (,/) Per V.-C. Malins, in Torrance 
 v. Bolton, L. R. 14 Eq. 130.
 
 PARTICULARS AND CONDITIONS. llo 
 
 from the written conditions, which were read but not dis- Chap. iv. 
 
 Sect. 2. 
 
 tributed at the sale, that the property was sold subject to 'Jl 
 
 tln-ee mortgages, the purchaser, who did not understand 
 tliat he was Ijuying an equity of redemption, was held 
 entitled to have his contract rescinded, and under the special 
 circumstances the vendor was condemned in costs (/t). 
 
 An agreement to sell land is, in the absence of any re- Agreement 
 strictive expressions, an agreement to sell the Avhole of the ^^i^at it in-' 
 vendor's interest therein (?) ; and such interest, if not de- ^1"^^«- 
 scribed, will be inferred to be an estate in fee simple {m) : 
 but it may be shown, even in support of a bill for specific 
 performance, that the purchaser knew the actual nature of 
 such interest {n) ; and, unless the contrary be expressed, the All legal 
 interest offered for sale, (whether it be absolute or qualified,) presumably 
 will be presumed to be accompanied l:)y all those advantages accompany 
 which are legally incidental to it (o). Therefore, an infringe- 
 ment of the rule, Ciijus est solum ejus est usque ad coelum (p), 
 is (if not mentioned in the particulars,) sufficient to lender 
 the contract voidable by the purchaser (q) : so, where there 
 was no title to an underground cellar, the defect was held 
 fatal (/•) : so, where there was a want of title to such a 
 proper access to a house as, under the description, the pur- 
 chaser was justified in expecting (.s) ; so, where on a sale of 
 arable land no right of way was shown thereto for carts and 
 carriages (t) ; so, where on a sale of ground-rents proper 
 powers of distress and entry could not be conferred on the 
 purchaser (u). And where a lessee agreed to buy the house 
 
 {/.•) Torrancev. Bulton, L. E. 14 Eq. BraitJnraite, 2 B. & Ad. 437 ; Ketjsev. 
 
 124 ; affd. L. R 8 Ch. Ap. 118. Powdl, 2 El. & B. 132 ; Sparrowv. Ox- 
 
 (I) Bower v. Cooper, 2 Ha. 408. ford, d-c. 7?. Co., 2 De G. M. & G. 108. 
 
 (?n) Huf/hes v. rarlcr, 8 M. & W, (q) Pope v. Garland, 4 Y. & C. 403. 
 
 244 ; and seeCditell v. CorraU,4:Y. & (r) WhlHiivjdon v. Cordcr, 16 Jur. 
 
 C. 228, 236 ; Sug. 298. 1034. 
 
 (n) See Couicy v. Watts, 17 Jur. (s) Stanton v. Tattcrshall, 1 JSm. & 
 
 172 ; Cox V. Middleton, 2 Dre. 217. G. 529. 
 
 {o) Skull Y.Gleni8ter,\&C.'B.'!^.'&. (t) Denne v. L'xjht, 3 Jur. N. S. 
 
 81 ; 33 L. J. C. P. 185 ; case of right 627 ; see and distinguish Curliny v. 
 
 of way appurtenant, though Hot men- Austin, 2 Dr. & Sm. 129. 
 
 tioned, pa-ssing by a p-arol demise. («) Lanf/ford v. Selmfs, ?, K. & Jo. 
 
 (p) " Et cul inferos -^^ see Le~cis v. 220. 
 
 I 2
 
 IIG 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 2. 
 
 Minerals 
 
 when not' 
 included. 
 
 Allotments. 
 
 Permanent 
 charges and 
 restrictive 
 rights 
 should be 
 noticed. 
 
 leased to him, and described as being then in his own occupa- 
 tion, it was held that he was not bound to complete except 
 upon the terms of his having a cellar which passed by the 
 lease, but which was not in his occupation at the date of the 
 contract («). 
 
 But an agreement to sell land to a Railway (?/) or Water- 
 works Company (z), if subject to the provisions of the late 
 Consolidation Acts, does not include the minerals («.), unless 
 they are expressly comprised in the purchase: and the mere 
 agreement to sell a house and land has been held not to pass 
 the right to an unascertained allotment under a recent in- 
 closure Act (6) ; but by the General Inclosure Act (c) it is 
 now provided that if an interest in land is sold before the 
 allotment in respect of it is made, the allotment shall be 
 made to the purchaser. 
 
 Any charge upon the estate, or right restrictive of the pur- 
 chaser's absolute enjoyment of it, and the release of which 
 cannot be procured by the vendors, should be stated in the 
 particular ; or the omission may, in many cases, render the 
 sale voidable by the purchaser (c?) e.g., a right of sporting- 
 over the estate (e), a right of common every third year (/), a 
 right to dig for mines (g), a liability to repair the church 
 chancel (Jo), or, (it is conceived,) a liability to heriots — unless 
 capable of being immediately enfranchised (i) — or any other 
 right or hability which cannot fairly admit of compensation, 
 would, if undisclosed, have that effect. 
 
 (x) WMttingdon v. Corder, suprd. 
 
 (y) 8 Vict. c. 20, 8. 77. 
 
 (z) 10 Vict. c. 17, 8. 18. 
 
 (a) Stone is such as between vendor 
 and purchaser for the puii^oses of an 
 exception of minerals ; See Bell v. 
 Wilson, L. R. 1 Ch. Ap. 303, rever- 
 sing a decree of V.-C. Kindersley, 2 
 Dr. & Sm. 395 ; so, also, china clay, 
 Ilext V. GiU, L. R. 7 Ch. Ap. 699 ; 
 but the surface owner was held 
 entitled to an injunction against wor- 
 king the clay bo as to destroy the 
 surface. 
 
 [b) Fife V. Clayton, 1 C. P. C, N. 
 R. 315. 
 
 (c) 8 & 9 Vict. c. 118, sect. 84. 
 
 (cZ) Sug. 5, G, 311, 312 ; and see 
 Torrance v. Bolton, L. R., 11 Eq. 124 ; 
 L. R. 8 Ch. Ap. 118. 
 
 (c) Burnell v. Brown, 1 Jac. &W.72. 
 
 (/) Gibsonv. SpurrierfFea. Ad.C. 50. 
 
 (_ff) Seaman v. Vawdrey, 16 Ves. 
 390 ; see Ramsden v. Hirst, 6 W. R. 
 349. 
 
 (A) Fortebloio v. Sliirley, 2 Sw. 223. 
 
 (/) See 15 «t 16 Vict. c. 51, s. 27 j 
 but see sect. 48.
 
 PARTICULARS AND f'OXDITIONS, 117 
 
 Ricrhts of way or water (/.•) (if any) should lie referred to ; Chap. IV. 
 
 ... Sect 2 
 
 for althouo'h a mere non-disclosure of their existence mio-ht 11 
 
 Rights of 
 wav, or water. 
 
 not, in general, avoid the contract (/), the Court would 
 readily lay hold of anything in the particulars, &c., at all 
 inconsistent with their existence, as a ground for relieving 
 a purchaser. 
 
 So, if the vendor's interest be in any way determinable. And any- 
 the fact should appear ; for when a redeemable annuity was may'deter- 
 offered for sale, simply as an annuity (r/i), and leasehold J^^iie vendor a 
 houses were sold, without any mention being made of a 
 irrlvate Act of Parliament which gave a Company the right 
 to purchase them {n), the sales were held invalid. 
 
 The vendor, however, is not bound to mention in the par- But not 
 ticulars any matter affecting the property, and of which the which pur- 
 purchaser has notice: e.g., on the sale of leaseholds, the fact notke-^ea 
 that the covenants and restrictions in the lease are unusually stringent 
 
 covenants 
 
 stringent need not be stated ; for the purchaser, having on sale of 
 notice of the lease, should satisfy himself as to the contents 
 before he buys (o) : but in such a case a reasonable oppor- 
 tunity ought to be allowed the purchaser of examining the 
 lease {p). 
 
 So, on the sale of copyholds, the particulars need not refer Or fines or 
 
 . customs on 
 
 to the nnes or customs oi the manor ; these being generally sale of copy- 
 incidental to cojoyhold tenure {q) : nor need they refer to the ^" ^ "^ • 
 fact that the minerals cannot be worked without the lord's 
 consent (r), nor to the fact that timber cannot be cut without 
 his consent. 
 
 So, where, on the sale of freeholds, it distinctly appears Or quit 
 
 rents, &c., 
 
 (k) See Slutckleton v. Sutdiffe, 1 De Patersoa v. Long, 6 Beav. .';90 ; Lewis 
 
 G. & Sma. 609. v. Bond, 18 Beav. 85 ; but see ante, 
 
 {I) OUIfield or Bowles v. Round, 5 pp. 95, 96. 
 Ves. 508. (p) Bnmfit v. Morton, 3 Jur. N. S. 
 
 (m) Coverley v. Burrcll, Sug. 27. 1198. 
 
 (?i) Ballard v. Way, 1 M. & W. {q) See and consider White v. Cud- 
 
 520. don, 8 CI. & F. 7C6. 
 
 (o) Hall V. Smith, 14 Ves. 426 ; (/) Ilayford v. Criddle, 22 Beav. 
 
 Po^e v. Garland, 4 Y. & C. 394 ; 480.
 
 118 
 
 PARTICULARS AND CONDITIONS. 
 
 by the particulars that the land is held of a manor, the 
 vendor need not, it is conceived, refer to the existence of quit 
 rents or even heriots (.s). At Law their non-disclosure has 
 been treated as constituting a fatal objection (t), although in 
 Equity they might, if small, be treated as matter for compen- 
 sation (u). The fair and proper course, however, is to men- 
 tion their existence. So, where land is sold as fen land, the 
 particulars need not refer to embanking and drainage taxes, 
 to which it is subject under a local but public Act of Parlia- 
 ment (;?.'). 
 
 Or notorious So, on the sale of lands within the mining districts, any 
 
 toms.^" ' reference to the rights of mining (?/) under the local customs 
 
 would, it is conceived, be unnecessary ; as their existence is 
 
 matter of notoriety (z). 
 
 Chap. IV. 
 Sect. 2. 
 
 on sale of 
 manorial 
 freehold : 
 
 Or statutory 
 local taxes : 
 
 But no mis- But the particulars must contain no misrepresentation; 
 
 allowable^. ^'^^ ^{J-> i^' ^^ ^^^*^ ^^^^ ^^ leaseholds, the terms of the lease are 
 
 misstated, the sale may be set aside ; even although the 
 
 auctioneer read the lease at the sale (")• 
 
 e.g., mis- 
 statement of 
 lease : 
 
 Or of dimen- So, where property thirty-three feet in depth was described 
 perty^ ^^"^ ^^ forty-six feet deep, the purchaser was allow^ed an abate- 
 ment of the price, although he was the occupying tenant (/>). 
 
 Or as to re- ^0, where redeemed land tax, consisting of several sums 
 
 tax™^*^ ^'^"*^ charged on distinct tenements, was described as an aggregate 
 
 sum issuing out of all, the misdescription Avas held to be a 
 
 fatal objection to the title (c). 
 
 [s) See Damerell v. Protheroe, 10 
 Q. B. 20, sho-\ving that heriots may be 
 due in respect of freeholds ; Lord 
 Chichester v. Hall, 17 L. T. 121, Q.B. 
 • [t) Turner v. Beaurain, Sug. D. 
 312. 
 
 (h) Vide infra. Ch. XVIII. 
 
 (a;) Barraud v. Archer, 2 Sim. 433 ; 
 affirmed, 2 Russ. and M. 751. 
 
 {y) As to which see Roffers v. 
 Brenton, 12 Jur. 263 ; Rowe v. Bren- 
 ton, 3 Mann, k R. 247, .'^39, 311, 314. 
 
 (■ ) And see now, as to the Hundred 
 of High Peak, Derbyshire, the 14 & 
 15 Vict. c. 94. 
 
 («) Fliyld V. Booth, 1 Bing, N. C. 
 379 ; Jones v. Edney, 3 Camp. 285 ; 
 and see Van v. Corpe, 3 Myl. & K. 
 269 ; Flir/ht V. Barton, ih. 282. 
 
 (6) Kinf/ V. Wilson, 6 Beav. 124 : see 
 Whittinrjdnn v. Corder, 20 L. T. 175. 
 
 (r) Cox V. Coventon, 8 Jur. N. S- 
 1142.
 
 PARTICULARS AND CONDITIONS. 119 
 
 And the effect of what would otherwise be notice ma}^ he Chap. IV. 
 
 Sect '^ 
 
 destroyed, not only by actual misdescription or misstatement, 
 
 but by anything calculated to deceive, or even lull suspicion, t^jinr^caicu- 
 
 upon the particular point ; as where lot A. (building land) l^ted to de- 
 ceive, &c. 
 was expressed to be sold subject to the rights of way re- j^gf^j^ence 
 
 served by the existing leases of adjoining property B., and a to deceptive 
 plan, specially referred to in the particulars, disclosed a car- 
 riage-way reserved over A. to B., and also a way reserved 
 over A. to another lot C, but gave no indication of another 
 way reserved over A. to B., the particulars and plan were 
 treated as deceptive ; and the purchaser was held not bound, 
 under the particular circumstances, to have inspected the 
 leases {d). 
 
 So, Avhere a lessee sold, (b}- way of underlease,) part of a Or decep- 
 demised estate, and the ^particulars mentioned that the mentasto 
 original lease contained a power of re-entry on breach of a 
 covenant against certain trades being carried on upon the 
 premises, and that the pm-chasers must enter into similar 
 covenants, but did not state the fact — which is a serious 
 defect in the title (f) — that some underleases, already granted 
 of parts of the property, contained no such covenants, the 
 purchaser recovei-ed his deposit at Law (/'). So, in Equity, a 
 vendor of property in lease is not justified in parading upon 
 his particulars the existence of covenants beneficial to the 
 estate, but which he knows or has good reason to believe 
 cannot be enforced ((/) : although he is not, as a general rule, 
 bound to show who are nommathn the parties liable upon 
 such covenants {g). 
 
 Where a lease, which contains the usual covenant to On sale of 
 
 lease, removal 
 
 deliver up the premises m good repair at the end of the of buildings 
 term, is sold, and any of the demised buildings have been 
 
 to l3e stated. 
 
 {d) Dykes v. Blake, 4 Biug. N. C. 6 De G. M. & G. 33 ; reversing V.-C. 
 
 463 ; and see Gibson v. D'Este, 2 Y. & Wood's decision. 
 
 C. C. C. 542 ; and see Baskcomb v. (/) Warinrj v, Hogyart, Ry. & M. 
 
 Beckwith, L. R. 8 Eq. 100. 39 ; and see Bmccs v. Belts, 12 Jur. 
 
 (e) Darlington v- Hamilton, Kay, 412, 709 ; and Spnnner v. Walsh, 11 
 
 550 ; Bartlett v. Salmon, 1 Jur. N. S. Ir. Eq. 11. 597. 
 
 278 ; see S. C. on appeal, 4 W. R. 32 ; (y) Flint v. Woodin, 9 Ha. 018.
 
 120 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 2. 
 
 Sale of part 
 of demised 
 j)roperty, or 
 of under- 
 lease. 
 
 removed, the fact should he stated : the omission of the 
 buildings from the particulars is not sufficient (Ji). So, 
 where other property is comprised in the lease (i), or the 
 interest offered for sale is an underlease (/t), the fact should 
 appear in the particulars or con<litions : and its omission 
 may be considered a sufficient ground for refusing specific 
 performance {!). 
 
 Discrepancy 
 between 
 particulars 
 aoid lease. 
 
 Puffing 
 
 statements. 
 
 Where the particulars refer to the lease, and there is a 
 discrepancy between the two, and the terms of the lease are 
 the more favom-able to the purchaser, the vendor is bound 
 by the description in the lease, and must show a title in 
 conformity therewith (r/t). 
 
 As respects commendatory statements and descriptions 
 in the particulars, which are separated from actual mis- 
 description by a very narrow boundary, we may refer to the 
 observations ah-eady made in Ch. III. : a fair and correct 
 description Avill, in the average, be found to be as agi'eeable 
 •^^dth sound policy as it is with morality. 
 
 Reference 
 to plan. 
 
 When a plan of the estate is attached to, or accompanies, 
 the particulars, and is incorrect, it will be a material con- 
 sideration with the C'ourt of Equity whether the purchaser 
 was thereby misled: but, if accurate, it is merely tantamount 
 to a view of the property : so that when an estate was sold 
 in lots, and it correctly appeared by the plan that lot 1, an 
 Inn, was supplied with water by a drain leading from a well 
 in lot 4, this was held to be merely expressive of the physical 
 fact, and not to amount to any engagement on the part of 
 the vendor that there should be a reservation of a right to 
 
 (h) Granrjer v. Worms, 4 Camp. 88 ; 
 see 3 Smith, 435. 
 
 (i) Tomkins v. White, 3 Smith, 435 ; 
 Leuty V. BiUas, 2 De G. & Jo. 110, 
 122 ; Brumfit v. Morton, 3 Jur. N. S. 
 1198 ; which see as to *' derivative 
 lease" and "underlease" being con- 
 vertible terms. 
 
 {k) Madcl>/ V. Booth, 2 De G. & S. 
 
 718. 
 
 (l) Brumfit V. Morton, 3 Jur. N. S. 
 1198; Sug. 300. See, too, Hayford 
 V. Criddlc, 22 Beav. 477 ; where, 
 however, the purchaser knew he was 
 buying an underlease. See, too, DaV' 
 linrjton V. Hamilton, Kay, 550 ; where 
 the point was considered doubtful. 
 
 (m) BentJey v. Craven, 17 Beav. 204.
 
 PARTICULARS AND CONDITIONS. 121 
 
 water in the conveyance of lot 4 : and a bill filed by the pur- chap. iv. 
 
 chaser of lot 1 for compensation, was dismissed with costs (?i). !J1_ 
 
 But where the plan so represents adjoining land as to make 
 it apparently part of the property, and the purchaser is 
 thereby misled, this may be a ground for refusing a decree 
 for specific performance against him (o). Thus, where an 
 estate was sold in lots, subject to restrictive covenants as to 
 the trades to be carried on upon the estate, and the vendor 
 retained a small plot which, though shown on the plan, was 
 not coloured, or marked with his name, as in the case of 
 other adjoining owners, the Court refused to enforce the 
 contract against a purchaser of one of the lots, unless the 
 vendor entered into similar restrictive covenants as to the 
 excepted plot (/>). 
 
 So, on the sale or lease of building ground, the exhibition, To plan 
 on the plan, of intended roads or other improvements on the intended 
 adiacent land, does not bind the vendor or lessor to make or ''^'^J^'^cent 
 
 J ' roads and 
 
 execute such roads or improvements (q), nor entitle the pur- improve- 
 
 chaser or lessee to a grant of right of way over any roads so 
 
 laid down on the plan, except such as form the direct means 
 
 of communication Avith the nearest highway (r) ; but a 
 
 vendor would not, it appears, be allowed to divide and 
 
 appropriate the land in a different manner, so as to attract 
 
 an occupancy and population entirely different from that 
 
 which would probably have been produced by acting on the 
 
 plan proposed and held out at the sale (s). On the other statement 
 
 hand, when a house is sold "with all its lights," a statement f^^l £^tS° 
 
 ing land. 
 
 (n) Peivster v. Turner, 6 Jur. 144; also Beaumont v. Did-e, Jac. 422 ; and 
 
 and see Bi/kes v. Blake, 4 Bing. N. C, see Nicholson v. Eose, 4 De G. & Jo. 
 
 463. 10. 
 
 (o) See Weston v. Bird, 2 W. E. (r) Bandall v. Hall, 4 De G. & S. 
 
 145, V.-C. K. ; Benny v. Hancock, 343 ; but qucere, whether the vendor, 
 
 L. R. 6 Ch. Ap. 1 ; and supra, p. 114. refusing to grant a right of way, at 
 
 {p) Baskcomb v. Bcckwith, L. E. 8 any rate over such roads as might 
 
 Eq. 100. eventually be made, could enforce 
 
 (5) Feoffees of HerloCs Hospital specific performance : See judgment. 
 
 V. Gibson, 2 Dow. 301 ; Squire v. (s) Peacoch v. Pcnson, 11 Beav. 
 
 Campbell, 1 Myl. & C. 459 ; Nurse v. 355 ; and, upon the construction of 
 
 Lord Seymour, 13 Beav. 269 ; see covenant to make roads see Mason v. 
 
 Schreiber v. Creed, 10 Siiu. 9 ; but see Cole, 4 E.\ch. 375.
 
 122 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. lY. 
 Sect. 2. 
 
 Vendor of 
 house re- 
 taining ad- 
 joining land 
 cannot 
 obstruct 
 lights. 
 
 E-eference 
 to plans. 
 
 Meaning of 
 
 particular 
 
 expression.^. 
 
 " Brick-built 
 house ;" 
 
 "Substantial.' 
 
 " Clear 
 yearly rent." 
 
 in the particulars that adjoining hand, belonging to the 
 vendor, is building land, does not authorize the vendor, or 
 a purchaser from him, to build upon the adjoining land, 
 so as to obstruct such lights {t). 
 
 We may here remark it to be well established that where 
 a person owns a house, ]ia\dng the actual use and enjojanent 
 of certain lights, and also holds the adjoining land, and sells 
 the house, he cannot, although the lights be neio, nor can 
 any one who claims inider him, build upon the adjoining 
 land so as to ol<struct or interrupt the enjoyment of those 
 lights (^f). 
 
 Care should be taken upon the sale of house property or 
 building land which has been described in the title-deeds 
 by reference to indorsed plans and a scale of measurement, to 
 ascertain that the measurement is correct : a slight variation 
 may lead to serious difficulty with a purchaser. 
 
 In the construction of particulars of sale, the Courts have 
 attached the following meanings to the following expressions; 
 viz : — 
 
 A house described as "Inick-built" is understood to be 
 brick-built in the ordinary sense of the words; not composed 
 externally partly of brick and partly of timber and lath and 
 plaster (f.') : but the description of a house as "substantial 
 and convenient" is merely relative, and in one case, where a 
 house was so described, the purchaser was held to his bargain, 
 although one of the external walls was only half a brick in 
 thickness (y). 
 
 By "clear yearly rent," is understood a rent clear of all 
 outo-oino's, kc, usually l^orne by the tenant ; but subject to 
 such (as land tax) as are borne by the landlord (z). 
 
 it) Swamhorouf/h v. Coventry,^ Bing. 
 305 ; but see and distinguish Booth v. 
 Ahoclc,!.. E., 8 Ch. Ap. 667, and ride 
 infrd Ch. xii. sect. 4. 
 
 (») Per Curiam, 9 Bing. 309 ; and 
 see as to new windows, Compton v. 
 FdrJuirda, 1 Pri. 27 ; and Blanchard 
 
 V. Bridges, 4 Ad. & E. 176 ; and see 
 Latham's Law of Window Lights, 
 {)2). 55 ct seq. 
 
 (x) Pou-cU V. Douhblc, Sug. 29. 
 
 (y) Johnson v. Smart, 2 Giff. 151 
 6 Jur. N. S. 815. 
 
 (:) 2 Ves. S. 500. 
 
 I
 
 PARTICULARS AND CONDITIONS. 123 
 
 The expression "farm," includes woodland, part of the chap. iv. 
 estate, although not in the occupation of the tenant («.). 
 
 A house where beer was sold by retail under a licence "PubUc 
 "not to be drunk on the premises," has been held not to be ^"^^^ ' 
 a public house for the sale of beer (h). 
 
 The expression "free public house," is a misdescription "Free public 
 when the lease contains a covenant to take beer from the '^""^^ ' 
 lessor (c). 
 
 By the expression "ground rent," if unexplained, is to be " Ground 
 understood a rent less than the rack rent of the premises : '^®"*" 
 its proper meaning is the rent at wliich Itind is let for the 
 purpose of improvement by building ((/) : but the expression 
 is very carelessly used. Where what was called a ground 
 rent was in fact a sum in gross, paid for the right of user 
 of a pleasure ground, the purchaser was allowed to rescind 
 his contract and recover his deposit (e). 
 
 On the sale of a manor, care should be taken to ascertain Precautions 
 accurately what are its constituents. Minerals under tene- ^^^ .'!® j*''*" 
 
 *■ scrv Gci on 
 
 mental freeholds, or under lands formerly copyhold of the ^^^^ "^ 
 manor but since enfranchised, an advowson, or allotments 
 made to the lord upon inclosure of wastes, may form parcel 
 of the manor without the fact being suspected : and would 
 pass under the ordinary words of conveyance of the manoi-, 
 unless specially excepted (_/'). 
 
 («) Portman v. Mill, 2 Jur. 35G. reversed 6 De G. M. & G. 33 ; and see 
 
 (6) Pease v. Coats, L. Pt. 2 Eq. G88, Leco>/ v. Mogford, 2 Jur. N". S. 1084. 
 sed qu. See Fielden v. Slater, L. R. (e) Evans \. Robins, 8 Jur. N. S. 
 
 7 Eq. 523, and compare Jo?ies V. 5onf, 84G ; and see Lanford v. Selmes, 3 
 
 L. R. 9 Eq. 674. Jur. N. S. 859 ; 3 K. & Jo. 220. 
 
 (c) Jones V. Edneij, 3 Camp. 285 ; (/) See Att.-Gen. v. Ewelmc Hos- 
 
 Modlcn V. Snowhall, 29 Beav. 641 ; 7 ?'jVrt/, 17 Beav. 366 ; Hicks v. Sallitt, 
 
 Jur. N. S. 1260. 3 De G. M. & G. 782 ; Hicks v. Has- 
 
 (rf) Steicart v. Alliston, 1 Mer. 26 ; tiiu/s, 3 K. & Jo. 701. 
 Sartlctt V. Salmon, 1 Jur. N. S. 278 ; 
 
 manor.
 
 124 
 
 PARTICULARS AND COXDITIOXS. 
 
 Chaix IV. 
 Sect. 3, 
 
 Conditions 
 should be 
 printed. 
 
 (3). As to the conditions. 
 
 The conditions of sale should be printed and circulated 
 some time previously to the sale, or at any rate in the 
 auction room, so as to give each person an opportunity of 
 ascertaining the terms on which the property is sold. The 
 system which is adopted by some of the provincial Law 
 Societies (g) of having printed common-form conditions 
 which are used on every sale, and to which are prefixed 
 the special conditions under which the particular property 
 is sold, has much to recommend it ; the effect of the common 
 form conditions is well understood, and the attention of the 
 purchaser and his solicitor is at once directed to the special 
 restrictive conditions. The practice, which still prevails in 
 some parts of the country, of having written conditions 
 which are merely produced and read over, but not circulated 
 in the auction room, cannot be too strongly reprobated ; and, 
 if the purchaser is thereby misled, or not fully informed, on 
 a material point, may result in the rescission of the con- 
 tract (Ji). 
 
 Against re- 
 tracting 
 biddings. 
 
 Whether or 
 not binding. 
 
 In the absence of stipulation, a bidder at an auction may, 
 audibly, before the fall of the hammer, retract his bidding (if) ; 
 a condition negativing this right is almost always inserted, 
 and is recommended by Lord St. Leonards, who nevertheless 
 expresses his opinion that it cannot be enforced (h) : such a 
 condition, however, was held to bind a mortgagee's solicitor, 
 who bid at the sale of the mortgaged property made by the 
 Court with the mortgagee's concui-rence (l). 
 
 For with- 
 drawing lots. 
 
 In some cases it may be desirable that the vendor should 
 reserve to himself the option of withdrawing any lots from 
 the sale, whether they shall have been offered to public com- 
 
 {(/) The Law Societies of Birming- 
 ham and Liverpool adojit this practice. 
 
 (h) Torrance v. Bolton, L. It. 1 4 Eq. 
 124 ; L. E. 8 Ch. Ap. 118 ; and vide 
 suprd p. 115 
 
 ((•) Pay7i€ V. Cave, 3 T. R. 148 ; 
 Iloutlcdge v. Grant, 4 Bing. 653, 660. 
 
 (k) Sug. 14 ; referring to Jones v. 
 Nanneii, 13 Pri. 99. 
 
 {/) Freer v. R'mner, 14 Sra. 391.
 
 PARTICULARS AND CONDITIONS. 125 
 
 petition or not, as, e.<j., in the case of a disputed bidding, or Chap. IV. 
 where there is not an adequate demand for the lots which '__! — 
 
 are being Ijrought into the market, or where, on the sale of 
 a building estate, the lots which are first ofiered, and which 
 from their position or other circumstances materially affect 
 the value of the remaining lots, do not fetch the price put 
 upon them, and are in consequence bought in. 
 
 On sales by auction, where the property is ofiered for sale For reserved 
 
 1 , , 1 bidding. 
 
 subject to a reserved price, this must be expressly stated ; 
 and if the vendor is desirous of reserving the right to bid, 
 cither by himself or his agent, this must be expressly 
 provided for {m). 
 
 On a sale by auction, it is usual to require payment of a Payment and 
 deposit by the purchasers ; and this may often be a prudent ^^f jeijosit. 
 precaution on a sale by private contract : if the deposit will 
 be of large amount, it may be well to provide for its invest- 
 ment, e.g. in Exchequer Bills or upon deposit with Bankers 
 of repute, in order that there may be no loss of interest, nor 
 liability in respect to the depreciation of securities. 
 
 It is also the ordinary practice to i^rovide that the vendor DeUvery of 
 
 abstract 
 
 shall, within a specified time, at his own expense, make and 
 deliver to every purchaser an abstract of the title to the lot 
 or lots purchased by him ; but the vendor is, independently 
 of any condition, bound to deliver an abstract ; a delivery 
 of the title-deeds is not sufiicient (h) ; the condition, how- 
 ever, is useful as fixing the time for delivery. But if there 
 is any doubt as to the vendor's ability to make out and 
 deliver a sufiicient abstract by the specified day, it is better 
 to omit the condition : for if he fail to deliver the abstract 
 within the period appointed, or if the abstract delivered be 
 very imperfect, any condition binding the purchaser to make 
 his objections within a specified time will fail of effect (o). 
 
 (ni) 30 & 31 Vict. c. 48, and vide (o) BoutUy v. llutt, 2 Myl. & C. 
 
 svprd, p. 113 ; Gilliatt v. Gilliatt, 207; Shcrwin \. ShaksjKar, 5 De G. 
 
 L. R. 9 Eq. 60 ; and infrd, Ch. V., M. & G. 517 ; Upperton v. Nkkohon, 
 
 s, 5. L. R. 6 Ch. Ap. 436 ; and see Da\ . 
 
 (n) Sug. 406 ; Home v. }ViinjfichJ, Conv. 1, 456 ; which see as to condi- 
 
 3 So. N. R. 340. tions of sale generally.
 
 126 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 Kestiictive 
 of pui'- 
 chaser's 
 right to 
 abstract. 
 
 Where he 
 biiys several 
 lots under 
 the same 
 title. 
 
 When tlie lots are small, and the title is voluminous, it 
 may be well to stipulate, that no purchaser, whose aggregate 
 purchase-money shall not amount to a specified sum, shall be 
 entitled to an abstract, (or an abstract going back beyond a 
 certain date,) except at his own expense : but in such case it 
 may be prudent to state that a full abstract will be deposited 
 with the vendor's solicitor, or elsewhere, for inspection by 
 purchasers and their solicitors. Where a pm'chaser buys at 
 the same auction several lots held under the same title, it 
 seems to be the better opinion that he is entitled, in the 
 absence of express stipulation to the contrary, to several 
 abstracts. Whenever, therefore, property held under the .same 
 title is divided into lots, the conditions ought to provide that 
 a pin-chaser of several lots shall be entitled to only a single 
 abstract, except at his own expense. It may sometimes also 
 be desirable to preclude a purchaser of several lots from 
 requiring separate conveyances ; which, as it is conceived, he 
 may require, if not so precluded. Such a condition, however, 
 is rare in practice. 
 
 " Abstract " If ^^^7 otlier condition refer to " the delivery of the 
 
 meaii.s "per- abstract," this, in any question as to time, will be held to 
 stract." mean the delivery of a 'perfect abstract {p) : I.e., an abstract 
 
 as perfect as the vendor could furnish at the time of de- 
 livery {q) ; altliough it may be an absti-act of a defective 
 title (r) ; and if it contains, with sufficient fulness, the effect 
 of eveiy instrument which constitutes the title, it will be 
 deemed sufficient to satisfy the condition ; and time will 
 begin to I'un against the purchaser as from the date of its 
 delivery («) ; and an abstract as delivered is presumed to be 
 perfect, unless the contrary is shown (f). 
 
 Effect of non- If the Vendor fail to deliver a perfect abstract within the 
 delivery of, Hyhq specified, the purchaser is relieved from any condition 
 
 on conditions i ' r ^ 
 
 as to time. binding him to ol»ject to the title within a given period after 
 
 (p) Hohson V. Bell, 2 Beav. 17. 
 {q) Morley v. Cool, 2 Ha. 111. 
 (r) Blaellurn v. Smith, 2 Exch. 
 789. ^1 ^ tya,w* ■SCu^ijU^(^A--^i 
 
 L.a.% .'u^^ ii^.'i'i - 
 
 (s) Oakden v. Pile, 11 Jur. N. S 
 666 ; V.-C. K. 
 
 {t^ Ward V. Gh-imes, 9 Jur. N. S 
 1097.
 
 PARTICULARS AND CONDITIONS. 127 
 
 delivery of the abstract (a) : it is not unusual to guard Chap. IV. 
 against this rule, by providing, (in the condition as to ob- 
 
 jections,) that "an abstract shall, as regards any objection 
 or requisition, be considered perfect, if it supply the infor- 
 mation suggesting the same, although it may be otherwise 
 defective " (x). 
 
 It is usual, and proper, in every case, to specify the day on Condition 
 which the purchase is to be completed, and from which the 'j.ietion, and 
 purchaser is to have possession (y), or (if it be in lease) "^te^^^^*- 
 receipt of the rents and profits of the estate, and to pay in- 
 terest (which ma}- be reserved according to an ascending- 
 scale, (s) upon the purchase-money, if not then paid ; and up 
 to which day the vendor is to pay the outgoings. This con- 
 dition, as to time, will not, however, in ordinary cases, be 
 binding in Equity, unless time be declared to be of the 
 essence of the contract («). It is generally thought best to 
 provide that the arrangement as to payment of interest and 
 receipt of the profits, &c., shall hold, whatever may be the 
 cause of delay in completion (h) : and it was always considered 
 that the purchaser must, under such a condition, pay interest 
 during the time spent in clearing up the title (c) : although, 
 of course, it would not justify the vendor in wilful delay (c?) ; 
 but where the expression was, " if from any cause whatever Delay " from 
 the purchase-money shall not l3e paid on, Szc, the purchaser ^vhatever." 
 making default shall pay interest," &c., it was decided that the 
 purchaser was exempted from payment of interest when the 
 delay arose from the state of the title ; inasmuch as he had 
 made no defaAilt (c) : in a modern case, at Law, where the 
 agreement was tliat the purchaser should pay interest from 
 
 (m) Blachloio V. Laws, 2 Ha. 40 ; money ; Lewis v. lioiith Wales R. Co., 
 
 Southhy V. Ilutt, 2 Myl. & C. 211. 10 Ha. 113. 
 
 (ic) And see also infra, Ch. VIII. (c) See Greenwood v. Churchill, 8 
 
 (y) As to the meaning of " pos- Beav. 413 ; Esdailc v. Skphensov, 1 
 
 session," ride infra, p. 129. Sim. & St. 129. 
 
 {z) Herbert v. Salisbury and Yeovil (d) S. C. ; see the judgment in Dc 
 
 R. Co. L. R. 2 Eq. 221. Visme v. Dc Visme, 1 Mac. & G. 336. 
 
 (a) Vide infra, Ch. X. (c) Denninrj v. Henderson, 1 De 
 
 [b) "Completion" in such condi- 0. & R. 632; 12 .lur. 89. 
 tions means payment of the pmxhase
 
 128 
 
 PAETICULARS AND CONDITIOKS. 
 
 Chap. IV. 
 Sect. 3. 
 
 De Vismc v. 
 De Vismc. 
 
 How the 
 condition 
 should be 
 framed. 
 
 " Receipt of 
 
 rents and 
 profits." 
 
 the clay fixed for completion, if completion " should be delayed 
 on his part," and the vendor and his trustee were ready to 
 complete on the day named, but the purchaser was not pre- 
 pared, and afterwards, when the purchaser was ready, the 
 vendor's trustee refused to concur, it was held that interest 
 was not payable after the latter date (/) : in another case 
 which has been much discussed ((/), where the purchase was 
 to be completed and the money paid on a certain day, " but 
 if the purchaser should fail in making such payment, then, 
 from whatever cause the delay might have arisen," interest 
 was to be paid at five per cent. ; and considerable delay arose 
 in making out the title, it was held, either that the purchaser 
 was not bound to j^ay interest until a good title was shown, or 
 that, if bound by the condition to such payment, he was en- 
 titled to an equivalent compensation from the vendor : this 
 doctrine, as we shall hereafter see, has been much broken 
 down by later cases (It) ; and it may now be taken as well 
 established, that the ordinary condition, whether with or 
 without the words " from any cause whatever," will apply 
 to every case except where the vendor, notwithstanding the 
 purchaser's active i-emonstrances, is guilty of wilful default, 
 or of such gross and persistent negligence as is tantamount 
 to wilful default. In order, however, to avoid all possible 
 question as to the scope and meaning of the condition, it may 
 be prudent to frame it thus: "if from any cause whatever, other 
 than the wilful and capricious refusal of the vendor to make 
 out his title or to convey the estate, the purchase shall not 
 be completed on the specified day, the purchaser shall thence- 
 forth pay interest on so much of his purchase-money as for 
 the time being shall remain unpaid, and shall have no claim 
 to compensation in respect of the delay in completion." 
 
 The common condition that a purchaser, " upon completion, 
 
 (/) Perry v. Smith, 1 Car. & M. 
 554. 
 
 (g) Dc Visme v. De Visme, 1 Mac. & 
 G. 336 ; vide infra. Ch. XIII. ; see 
 as to interest, lioidei/ v. Adams, 12 
 Beav. 476. 
 
 {h) See among others Bannerman 
 
 V. Clarke, 8 Drew. 362 ; Yiclcers v. 
 Hand, 26 Beav. 330 ; Lord Palmer- 
 stoii V. Turner, 33 Beav. 524; Wil- 
 liams V. Glenton, 33 Beav. 528 ; L. E. 
 1 Ch. Ap. 200 ; and ride infra, Ch. 
 XIII., s. 4, where the effect of this 
 condition is more f uUy considered.
 
 PARTICULARS AND CONDITIONS. 129 
 
 shall be let into the receipt of the rents and profits," pi-lmd Chap. iv. 
 
 facie, refers only to rents reserved on an ordinary tenancy ; !!u 
 
 and where property was described as " now or late in the 
 several occupations of H. R. and others," and parts of the pro- 
 perty were subject to leases for lives at low rents, of which 
 the purchaser had no notice, it was held that the ordinary con- 
 dition as to letting him into receipt of the rents and profits 
 did not apply, and that he could not ha compelled to accept 
 the title witliout a compensation (0- 
 
 The word " possession " is a flexil^le term, and does not " Possession." 
 necessarily import a personal occupation. Thus, where the 
 property, an orchard, was described " as in occupation of 
 L. P," and the purchaser was to have pof^session on the day 
 fixed for completion, it was held that he could not insist on 
 l)eing put into personal occupation of the property (/). 
 
 We may here remark that an agreement that if the pur- Usury, 
 chase-money were not paid at the time fixed for completion, 
 the purchaser should pay " in lieu of interest upon the same a 
 clear rent of I. per annum," was not, while the laws against 
 usury (/) were in force, deemed usurious by reason of the 
 rent exceeding the amount of interest at ol. per cent, on the 
 purchase-money (rii) ; nor will the Court now relieve against 
 an agreement to pay interest on an increasing scale varying 
 with the continuance of the delay in completion (a); but a 
 bond for the purchase-money carrying interest at more than 
 ol. per cant, was formerly usurious (o), unless protected by the 
 2 & 3 Vict. c. 87. We may also remark that the repeal of 
 
 (/) Iluglics V. Jones, 3 De Cr. F. & interest, were in fact principal ; and 
 
 J. 307 ; 31 L. J. N. S. 83. see notes to S. C, 1 Mann & Ry. 1-13, 
 
 {k) Lahe v. Dean, 28 Beav. (507. 151 ; Barrij v. Ncsham, 3 C. B. 641, 
 
 (/) Repealed prospectively by 17 & 654. See, however, as to usury, Lane 
 
 18 Vict. c. 90. V. Jlorloel; 1 Dre. 587 ; reversed, 2 
 
 (m) Spurrier v. Mayoss, 1 Ves. jun. Jur. N. S. 289 ; 5 H. L. Ca. 580 ; 
 
 627 ; S. C. 4 Bro. C. C. 28 ; and see James v. Rice, Kay, 231 ; reversed on 
 
 Dowliny v. Lefjh, 3 J. & L. 716 ; other grounds, 5 De G. M. and G. 
 
 BeJclier v. Vardon, 2 Coll. 102 ; and 461 ; 7'/iomas v. Cooper, 18 Jur. 688. 
 
 Beete v. Bichjood, 7 B. and C. 4.^3, (/() Jlcrhevt v. Salishm-ij, <i-c., Co., 
 
 where the Court held that future p.ay- 2, 1860, W. N. 190. 
 
 ments reserved under the name of (") Davcir v. Spar, 3 T. R. 425. 
 
 VOL. I. K
 
 130 
 
 PARTICULAUS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 the usury laws has not aftected tlio jurisdiction of the Court 
 to grant relief against unconscionable bargains (p). 
 
 ■Conveyance. 
 
 V 
 
 Covenants by 
 trustees and 
 mortcrat'ees. 
 
 It is usual, on a sale by auction, to provide, that the vendor 
 shall, upon payment of the purchase-money, execute proper 
 conveyances to the respective purchasers of the lots pur- 
 chased by them respectively ; such conveyances, &c., to be 
 prepared by and at the expense of the respective purchasers, 
 and by them tendered for execution at a specified time and 
 place. The condition is scarcely necessary ; for the contract 
 in itself gives the purchaser a right to a conveyance upon 
 payment of his purchase-money; and he la/prlind facie, bound 
 at his own expense to prepare and tender it {q). It may 
 sometimes, where time is intended to be of the essence of the 
 contract, be well to stipulate that, in accordance with the 
 universal practice, a draft of the proposed conveyance shall, 
 at a specified time before the day fixed for completion, be 
 furnished for perusal by the vendor's solicitor. 
 
 So it is usual, and therefore perhaps expedient, on a sale 
 by mortgagees or trustees, to stijDulate that they shall be re- 
 quired to covenant only against incumbrances ; but the con- 
 dition seems to be unnecessary ; and were it omitted, the 
 purchaser, it is conceived, could generally neither insist upon 
 any further covenants, nor refuse to complete upon the ground 
 of the vendors declining to enter into them. 
 
 Apportion- So it is usual to stipulate that the rents will be received, 
 
 auhig rcmts. -'^nd the outgoings discharged, l)y the vendor up to the day 
 
 fixed for completion, and as from that date by the purchaser, 
 
 and that if necessary an apportionment of such rents and out- 
 
 goino-s shall be made between them. 
 
 Apportion- Where land subject to a rent-charge is sold in lots, and the 
 
 change. ^ ' owner of the rent is unable or unwilling to concur in an ap- 
 portionment thereof under the provisions of the Inclosure 
 
 (/>) Tiihr V. Yates, L. E., G Ch. Ap. 
 605 ; Miller v. Cool; L. R. 10 I'^q. 
 
 (7) Sug. 210, 241 ; Poole v. lllll, 
 G M. & W. 835.
 
 PARTICULARS AND COXDITRJXo. 181 
 
 Acts (>'), or to release the land oticred for sale under the Chap. IV. 
 22 & 23 Vict. c. 35, it is usual to stipulate that each purchaser ' ' . 
 
 shall pay a specified portion of the rent-charge ; and, if 
 he desires it, shall procure an apportionment at his own 
 expense. In such a case, the anioiuit apportioned to each lot 
 shouhl be stated in the particular. 
 
 If, Avhere property is sold in lots, any part comprised in Appertion- 
 two or more lots be upon lease at one entire rent, or if all or service. 
 any jDart of the property comprised in one lot, be let together 
 with other property at one entire rent, and the consent of 
 the tenant to an apportionment of the rent cannot be ob- 
 tained prior to the sale, the conditions must provide for its 
 apportionment (s) ; and, although perhaps not strictly neces- 
 sary, where the intended aj^portionment of the rent is clearly 
 si^ecified (f), it may, hy way of precaution, be well to stipulate 
 that the concurrence of the tenant, who is not bound by an 
 apportionment made without his consent, shall not be re- 
 quired (a). 
 
 It may be well to remark here that where the reversion Apportion- 
 on a lease is sevei'ed, and the rent is legally apportioned, the on severance 
 assignee of each part has now, in respect of the apportioned ^^ reversion, 
 rent allotted to him, the benefit of all conditions or powers of 
 re-entry for non-payment, as if they had been reserved to 
 him as incident to his part of the reversion in respect of such 
 apportioned rent {x). 
 
 Where leasehold property held under one demise at an Apportion- 
 entire rent is offered for sale in lots, provision must be made and liabilities 
 for the apportionment among the several purchasers of the J*"^sg/joij^^ j,^ 
 rent and liabilities under the lease. - The lessor is seldom lot.s. 
 likely to concur in an arrangement, which, while it increases 
 the trouble of collection, may lessen his security for the rent. 
 There is no plan by which such an apportionment may be 
 
 (r) See 17 & 18 Vict. c. 97, ss. 10, (t) Waller v. iVaiauh, 1 J. & AV. 
 
 14. 181. 
 
 (.s) See BaruKcll v. Harris, 1 (/() Dav. Vol. I., p. 473. 
 
 Taunt. 430. {x) 22 & 23 Vict. c. 35, s. 3. 
 
 K 2
 
 132 
 
 PAUTIOULARS AND CONDITIONS. 
 
 Chap. IV 
 Sect. 3. 
 
 Crop.s, &c. 
 
 efi'ected which is wholly free from objection. Sometimes 
 croRs powers of entry and distress are given to the several 
 purchasci's over the other lots ; but where the lots are 
 numerous tliis is a complicated process ; and the most ap- 
 proved plan is to assign the lease to the largest purchaser in 
 value, and to require him to grant derivative leases for the 
 whole term, wanting one day, to the purchasers of the re- 
 maining lots at the apportioned rents. 
 
 Upon the sale of land used for agricultural purposes, it 
 may bo often necessary to insert a condition as to the grow- 
 ing crops l)eing taken and paid for T)y the purchaser : or as 
 to allowance ])cing made for seed, manure, tillage, and such 
 other things as, according to the local custom, are usually 
 matters for allowance between an outgoing and an incoming 
 tenant. 
 
 Eight to, if 
 no condition. 
 
 Fixtures. 
 
 If the property be in lease at the time of sale, the pur- 
 chaser Avill, of course, be subject, in these respects, to the 
 rights of the tenants: if, however, it 1)0 in hand, and nothing 
 bo said as to the crops, they will belong to him from the day 
 fixed for completion; and it is conceived that the vendor will 
 not be at liberty previously to remove them in an immatm-o 
 state: and of course, in the aljsenco of stipulation, the vendor 
 himself could make no claim in respect to seed, manure, 
 tillage, &c. 
 
 There should be a condition as to fixtures (?/), if the pur- 
 chaser is to pay for any. In the absence of any express 
 stipulation, common fixtures (z), including such as are not 
 strictly fixtures, Avill be held to be included in a contract for 
 sale ; and -will pass by the conveyance, unless a contrary in- 
 tention can be collected from the instrument (a). 
 
 (2/) As to what are fixtures, ride 
 infrd, Ch. XII., s. 4. 
 
 (2) See, however. Ex ixirte Quinoj, 
 1 Atk. 477. 
 
 (rt) C'olcfjrave v. Bias Santos, 2 
 r.. & C. 70 ; Ililchumn v. 11''^/^'//, 
 4 M. & W. -lOf), and cases cited, 411 ; 
 
 Manning v. Bailey, 2 Exch. 45 ; Ex 
 liarte Lloyd, 1 Mon. & A. 494 ; Hare 
 V. Horion, 5 B. & Ad. 715 ; Sug. 3-3 ; 
 WiUnliCar V. Cuttvell, 1 El. & Bl. C74 ; 
 Mather V. Fraser, 2 K. & Jo. 530 ; 
 J/atrhiii.wn V. Kay, 23 Be.av. 413 ; 
 Jfaliij V. Ilammcrsle;/, 3 De CI. F. &
 
 PARTICULARS AND CONDITIONS. 133 
 
 Payment for timber by the purchaser, if inteii<lecl, must be Chap. IV. 
 provided for by the conditions (6). The effect of the general 
 
 condition has been hekl to be destroyed, as to lots A. and B., 'I'lmber. 
 by a particular statement being appended to the descriptions 
 of lots C. and D., that the timber on tltcm was to be paid 
 for (c). 
 
 The expression "timber," which means trees lit to be used i}"^j^^^J^'n^ "^ 
 in building and repairing houses {d), includes oak, elm, 
 and ash, everywhere ; and, by local custom, beech (c), and 
 various other trees ; even trees which are primarily fruit 
 trees, as cherry, chesnut, and walnut (/) ; no wood, however, 
 is timber until of twenty years' growth (r/). As a general 
 rule, pollards would seem not to be timber ; if sound, however, 
 they may be timber by local custom. A grant of "timljer Timber-like 
 and timber-like trees" includes not only ordinary timber, 
 and such trees, as by local custom, are considered timber, 
 Init even "thinnings," and the right of determining what 
 are proper thiiuiings (A) ; so also it would seem to include 
 sound pollards {i). An exception in a lease of "all timber 
 and other trees, Ijut not the annual fruit thereof," would 
 seem not to include garden or orchard fruit trees, unless by 
 local custom (/>;) ; the term "fruit" being considered to refer 
 to the mast of timber trees. 
 
 Where, on the sale of intermixed freehold and copyhold Timber must 
 land, it was provided, that the purchaser should not be txnder cundi- 
 entitled to have the quantities or boundaries of the two J'"'!;:!!!^^'';"^!! 
 
 -»■ I )lll CliclfcCI llliiV 
 
 tenures distinu-uished, and he was to pay a specified sum tave no right 
 
 ° 1 J X ty i^Y\ it. 
 
 J. 587 ; Boyd v. SJiorrocJc, L. R. 5 (/) Duke of Chandos v. Taliut, 2 
 
 E(|. 72 ; Tarver v. Cameron, L. R. 5 P. Wms. 006. 
 
 Q. 13. 307, and ride vifrCt, Ch. XII., {//) Foster v. Leonard, Oro. Eliz. 1, 
 
 sect. 4, where the law as to fixtures, As to what are and what are not 
 
 and the operation of the Bills of Sales timber trees, see IIon>jv:ood v. Iloni/- 
 
 Act is more fully noticed. ivood, L. R. IS Ecj. 3u6. 
 
 (b) Sug. 32 ; see H'Kfjbtson v. (/;) Gordon v. Woodford, 27 I3eav. 
 Cloices, 15 Yea. 51G. 003. 
 
 [c) Hirjyinson v. CloKCS, ida siqmi (0 PMhhdt v. Raikes, Woodfall't! 
 ((/) WoodfaU's Landl. and Ten., Laudl. & Ten., 457, 7th ed. ; and 
 
 456, 7th ed. see 2 P. Wms. G06. 
 
 (f) Aidnrij V. Fish-r, 10 East. 446, (/') n>ilkn\. Icinn'n'j, riV,.k C,S4:\
 
 134 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 Misdescrip- 
 tion. 
 
 What it 
 extends to. 
 
 Misdescrip- 
 tion on 
 material 
 point. 
 
 for the timber, this Avas held to hind him to the purchase 
 without an abatement, although, the boundaries not being- 
 distinguishable, he could not fell a single tree. And in 
 another case, arising under the same conditions, there was 
 a like decision, although the entire lot was shown to be 
 copyliold : the Court holding that the contract was entire, 
 and that there was often much value and enjoyment in 
 the possession of trees apart from their selling value as 
 timber (l). 
 
 It is a common condition, upon a sale by auction, and often 
 upon a sale by private contract, that any misdescription, mis- 
 take, or error in the particulars, eithei- way, shall not avoid 
 the sale, but shall be the subject of compensation : and the 
 condition usually proceeds to fix the mode in which the 
 amount of compensation shall be settled. 
 
 It has been held that such a condition must be taken to 
 contemplate and provide for on!)/ such misdescription, mis- 
 take, or error, as, in the absence of the condition, would be a 
 ground for avoiding the contract (m) ; but, notwithstanding 
 the condition, the misstatement, if "wilful or designed, as it 
 amounts to fraud, will, even at Law, render the contract void- 
 able at the option of the purchaser : and, if it arise simply 
 from negligence, Equity will refuse a specific performance at 
 the suit of the vendor, if the error be not a fair subject for 
 compensation (n). 
 
 And where there has been n bond Jide nustiikQ in a matter 
 essential to the contract, as where an estate was inad- 
 vertently stated to contain 21,750 acres, whereas it contained 
 only half that quantity (o), the Court will refuse the pur- 
 chaser's suit for specific performance, holding it not a case for 
 compensation, but for avoiding the contract altogether. At 
 
 (!) Cross V. LauTcnce, and Cross v. 
 Keane, 9 Ha. 462, 469 ; compare 
 Dawson v. Brinckman, 3 Mac. & G. 53. 
 
 (m) Leslie v. Tompson, 9 Ha. 273 ; 
 and see and consider Hoy v. Smithies, 
 22 Beav. 510. 
 
 (h) Sug. 28. 
 
 (o) Ea7-l of Dnrliam v. Legard, 34 
 Beav. 611 ; and see Price v. North, 2 
 Young & C. (Ex.) 620 ; and see 
 and distinguish Cordin'jley v. Cheese-' 
 horoiKjh, 8 Jur. N. S. 5S5, 755.
 
 PARTICULARS AND CONDITIONS. loo 
 
 Law, cases have occurred, in which the opinion was entertained Cb ap. I v. 
 
 tliat, however gross the negligence, the purchaser is bound, if . 1_1._ 
 
 there be no fraud (p) ; but this opinion has not been fol- 
 lowed (g) : and the rule at Law seems now to be as laid down 
 by Tindal, C. J. ; viz., " that where the misdescription, al- 
 though not proceeding from fraud, is, in a matei'^1 and sub- 
 stantial point, so far affecting the subject-matter of the con- 
 tract that it may reasonably be supposed that, but for such 
 misdescription, the purchaser might never have entered into 
 the contract at all, in such a case the contract is avoided alto- 
 gether, and he is not bound to resort to the clause of compen- 
 sation : under such a state of things he may be considered as 
 not having purchased the thing which was really the subject 
 of the sale " (r). So, in Equity, the reasonable rule is, that In E^iuity. 
 the contract is vitiated by a misrepresentation, " daiis locum 
 contmctiu," i. e., asserting a fact on which the person entering 
 into the contract relied, and in the absence of which it is 
 reasonable to infer he would not have entered into it ; or sup- 
 pressing a fact, or not properly stating a fact (s), the knowledge 
 of which it is reasonable to infer would have made him 
 abstain from the contract altogether (t). 
 
 And where a vendor, who has the means of knowledge, and Or cause.l by 
 
 .... gross ncgli- 
 
 is bound to use due diligence, misdescribes his property in gence. 
 any impoiiant particular, it seems probable that the facts 
 would in themselves be deemed conclusive evidence of a 
 fraudulent intention (u) : e. ^., a statement that the estate was 
 about one mile from Horsham, when in fact it was upwards 
 of three miles distant (x) ; and, in another case, a material 
 misstatement, upon the sale of a house, as to the amount of 
 the ground rent (v/) ; and, in a later case, a description of di- 
 lapidated property, as " good and substantial but unfinished 
 
 (p) Wriyht v. Wlhon, 1 Moo. & E. (0 Pnhfnrd v. lilchanh, 17 Beav. 
 
 207 ; and see Mills v. Oddy, 6 Car. 96 ; Sicaisland v. Dearslcy, 29 Beav. 
 
 and P. 728. 430. 
 
 (q) Sug. 31. («) See Sug. 23, et sc^, 
 
 (r) Fli</ht V. Booth, 1 Bing. N. C. (x) Duke of XorfAk v. 11'- rllnj, 
 
 370, 377 ; see 8 CI. & F. 7G6. 1 Camp. 337. 
 
 (.?) Torrance v. Bolton, L. R. U Eq. (>j) Mills v. Obly, 6 Car. i P. 728. 
 124, L. R. 8 Ch. Ap. 118.
 
 136 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 Purchaser 
 hound 
 althouLjh 
 misled bj' a 
 correct and 
 hond fide 
 description. 
 
 buildings " {£), seem to have been considered, at Law, to be, 
 in their vcr}^ nature, fraudulent. 
 
 But a sale of property merely hy its usual and known 
 description, without alteration, addition, or conmient, will 
 bind the purchaser, although such description may in fact 
 accidentally mislead him : for instance, where a house long 
 known and rated as No. 39, Kegency Square, Brighton, was 
 sold in London Ijy auction by that description, and the 
 purchaser bought it without previous inquiry, and then 
 found that it was not actually in the Square, but in a side 
 street, commanding no sea view, and was a smaller house 
 than the houses in the Square, he was held by Sir James 
 Parker, Y.-C, to his bargain {<i). 
 
 Remarks on 
 White V. 
 BradihaxL: 
 
 Li this case there was that degree of apparent hardship 
 and mistake which might, without much difficrdty, have 
 induced the Court to decline to exercise its discretionary 
 jurisdiction : but the decision, it is submitted, was correct. 
 It was, no doubt, a hardship upon the purchaser to be 
 obliged to take property of a less valuable kind than that 
 which he fancied he was buying ; but it might have been 
 an equal or greater hardship on the vendor to throw the 
 property back upon his hands, and so to deprive him of the 
 advantage of those hondjide biddings at the auction, which 
 immediately preceded the bidding upon which the house was 
 knocked down to the purchaser. If a man chooses to enter a 
 public sale room, and to bid for property without previous 
 inquiry, and therefore evidently not with a view" to personal 
 occupation, but as a mere speculative investment, relying on 
 his own imperfect knowledge or recollection of its particular 
 features, and then finds that he has made a mistake, all that 
 can be said is, " qui vidt deciin, decipiatm\" If, however, the 
 advertisement or particulars had contained any reference 
 
 (:) RoUnson v. Mvs^rovc, 8 Car. & 
 P. 469 ; Lot/es v. Rutherford, Sug. 
 331 ; but, in general, a misstatement 
 as to the state of repairs would seem 
 to be a matter for compensation in 
 
 Equity ; Di/cr v. llarjraie, 10 Ves. 
 505, 508. 
 
 (rt) White V. Bradshau; V.-C. P., 
 16 Jur. 738.
 
 PARTICULARS AND CONDITIONS. I37 
 
 to Regency Square as possessing those peculiar advantages ciiap. iv. 
 — such as a sea view — which, although enjoyed by the ^'^^^- ^• 
 houses generally, were not enjoyed by No. 39 in particular, 
 such reference, although strictly correct in fact, would 
 probably have been held to savour sufhciently of deception 
 to deprive the vcmlor of the assistance of a Court of 
 Equity. 
 
 Where a house known as No. 58, Pall Mall, but whieli s<,n,f„n v. 
 in fact was built at the back of No. 57, and comniu- l\^.[nSlil\ '^^^' 
 nicated Avith the street merely by a passage, was sold by 
 auction, not merely as " No. 58, Pall Mall," but as " No. 58, 
 on f/te nurfk side o/Pall Mall, 0/>^)0.S77i'3 Maiihoroiujli House," 
 the Court held the case to be one of misdescription, and not 
 to fall within the authority of the Regency Square case (6) : 
 and the cases seem to be distinguishable on this ground, viz., 
 tliat in the former there was a mere description of the 
 property in those terms in which alone it could be propeiiy 
 described ; whereas, in the latter, the ordinary description 
 was so amplified, as apparently to involve an assertion by 
 the vendor that the premises actually occupied a specified 
 desirable locality. 
 
 If the intending purchaser do not rely upon the particulars So if he test 
 or statements of the vendor, but examine the property in mrticidars. 
 person or by his agents, he cannot, in the absence of direct 
 fraud, contend that he is deceived by the representations of 
 the vendor as to any point upon which he lias thus tested 
 their accuracy (<•) ; but if the misrepresentation be of such a 
 nature as not to be apparent on a personal inspection, and 
 the purchaser relies upon it, the mere fact of his having' 
 examined the property does not necessarily make the 
 contract binding upon him {<!). 
 
 It may, however, be collected from tlie cases at Law and Cases of 
 
 material m?s- 
 
 , , rr, 7. . f . • desciiiitiou. 
 
 (0) Stanlon v. Tatlcrsali, 1 hm, & Jciiiun[/x v. Bronz/Jiton, 17 Bcav. 2-31 ; 
 
 G. 529. 5 De. G. M. &G. 126. 
 
 (c) See Atlwood v. Sniall, 6 CI. & (d) Davvj v. Hancock, L. I{. 6 Ch. 
 
 F. 232 ; see the judgment in Cluii- Ap. 1. 
 
 ham V. ShilUto, 7 Bcav. 140; and
 
 138 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 in Equity, that, independently of fraud, and on the mere 
 ground of the materiality of the misdescription, the usual 
 condition as to compensation will not avail in the following 
 cases, viz. : — 
 
 Where 
 
 property Is of 
 different 
 nature ; 
 
 1st. Where the property is not of the same description 
 as it appears to be in the particulars ; as where long lease- 
 hold is described as freehold (e) ; or copyhold is described as 
 freehold (/) : unless, by reason of the fine, &c., being fixed 
 and nominal, and the right to minerals and timber being 
 in the tenant, the customary tenure is in fact equivalent to 
 freehold {fj) ; or where land which was formerly copyhold 
 and has been enfranchised under the Enfranchisement Acts 
 but remains subject to the rights of the Lord in respect of 
 minerals, is described as freehold (//) ; or where an under- 
 lease is sold as an original lease (i) ; or as where, upon the 
 sale of an estate let at lease on a rack rent, such rent is 
 described as a ground rent {h) ; or where the occupation rent 
 is overstated, or so stated as to mislead {I) ; or what is 
 described as a freehold ground rent is in fact only a sum in 
 o-ross secured by personal covenant {rn) ; or as where a 
 house, composed externally partly of brick and partly of 
 timber and lath and plaster, is described as a brick-built 
 house (?i). 
 
 or not 
 identical ; 
 
 2ndly. Where the property, as described, is not identical 
 with that intended to be sold : as when a vendor, intending 
 
 (e) See and consider Browne v. 
 Fcnton, 14 Ves. 144. 
 
 (/) Aylcs V. Cox, 16 Beav. 23 ; 
 Uppcrton V. Nkkohon, L. E. 6 Ch. Ap. 
 436; L. R. 10 Eq. 228, and vide infra. 
 Ch. XVIII., s. 9. 
 
 [fj) Price V. Macauhoj, 2 De G. M. 
 and G. 339 ; and in such cases the 
 effect of the Copyhold Enfranchise- 
 ment Act, and the provision as to the 
 reservation of minerals, must now be 
 considered. 
 
 (h) Uppertoii v. Niekohon, vM 
 S'lprct, 
 
 (/) iMadcIei/ V. Booth, 2 De G. & S. 
 718 ; Lav) v. Urlwin, 16 Sim. 377 ; 
 but see Darlington v. Hamilton, Kay, 
 550 ; Bartlett v. Salmon, 1 Jur. N. S. 
 278 ; reversed 6 De G. M. & G. 83 ; 
 Brumfu V. Morton, 3 Jur. N. S. 1198 ; 
 and see, too, Ilayford v. Criddle, 22 
 Beav. 477. 
 
 {k) Steu-art v. Alliston, 1 Mer. 26. 
 
 (I) Dimmoch v. Hallctt, L. R. 2 Ch. 
 Ap. 21. 
 
 (m) Evans v. Hoblns, 10 Jur. N. S. 
 473, Exch. Ch. 
 
 («) PourU V. Douhhle, Sug. 29.
 
 PARTICULARS AND CONDITIONS. 139 
 
 to sell No. 2 in a .street, described it as No. 4, the pur- Chap. iv. 
 chaser, although No. 2 was the same desciiption of house ' 
 
 as, and in better repair than, No. 4, recovered his deposit 
 at law (o). 
 
 Srdly. Where a material part of the property described or material 
 has no existence, or cannot be found (p) ; or where no wantiiK^, or 
 title can be shown to it ; as when, upon the sale of a ^^^ ^° ^^^^^' 
 leasehold house and small yard adjoining, the yard was 
 not included in the lease, but held from year to year at 
 a separate rent (q). 
 
 4thly. Where the misdescription is upon a point material or its due 
 
 , eiijoymunt is 
 
 to the due enjoyment of the proj)erty ; as when, upon the materially 
 sale of a lease of a house and shop, the particulars merely ^ ®° ^ ' 
 stated that the lease contained a restriction against certain 
 specified trades being carried on upon the premises, whereas 
 in fact several other trades were forbidden (r) : so, also, 
 where upon the sale of a j)iece of land described as " a firet- 
 rate building plot of ground," no notice was taken of a 
 right of way passing over it («), or of an underground 
 watercourse Avhich third parties had liberty to open, cleanse, 
 and repair, making satisfaction for damage thereby occa- 
 sioned (t) : or where a reservoir and waterworks were 
 described as 3'ielding a specified yearly rent exclusively of 
 the land and buildings, and it appeared that this rent 
 consisted of water rents paid by the occupiers of houses 
 separated from the reservoir by property over which the 
 vendors had merely a right of waterway under a 3"early 
 licence (it) : or where a manufactory in a town abounding 
 in springs was described as " well sujoplied with water," 
 when in fact there was only an artificial supply from 
 
 {o) Leach y. Mulktf, 3 Car. & P. Eq. E. 194, 196. 
 
 115. (•»•) Di/lrs V. Blake, 4 Bing. N. C. 
 
 (p) liuhhison V. Miinr/rove, 2 Moo. & 463 ; and see Gibson v. D' Edc, 2 Y. & 
 
 E. 92. C. C. C. 542. 
 
 (7) Dohdl V. Iluklmmm, 2 Ad. & {t) Shaclcktonv. Sutdlffc, 1 DeG. & 
 
 E. 355. S. 609. 
 
 (r) F(lf/kt V. Booth, 1 Bin;,'. X. C. (u) Price v. Mncauhnj, 2 De G. 
 
 370; see VUjnoUes v. Boxccn, 12 Ir. M. & G. 339.
 
 140 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. a Waterworks Company upon payment of a heavy annual 
 ^^^' '"' rate (x) : or where property is described as " freehold," 
 and it is in fact subject to undisclosed restrictive cove- 
 nants (//). 
 
 Or where 
 serious mis- 
 clcscription as 
 to ijuautity ; 
 
 othly. Where the misdescription as to quantity is so 
 serious that it is no longer a fit subject for compensation ; 
 as where the estate was said to contain "14 acres more 
 or less," and it was found to contain 27 acres (s) ; or 
 where the acreage Avas given as 21,750 acres, when it 
 was in fact only half that quantity («) ; and there may 
 be cases where from the use intended to be made of the 
 property by the purchaser, or from other circumstances, 
 even a trifling deficiency in quantity, may not be a fit sub- 
 ject for compensation. 
 
 or amount of Gthly. Where the misdescription is of such a nature that 
 compensation q amouut of Compensation cannot be estimated ; as where, 
 
 cannot be J- 
 
 estimated. qh the Sale of a reversion, expectant on the decease of A. 
 in case he should have no children, his age was described as 
 GQ instead of G-1 (h) ; or as where, on the sale of a wood, the 
 particulars erroneously 'stated that the average size of the 
 timber approached 50 feet, the nmnher of trees not being 
 stated (c) ; or as where the particulars stated the premises to 
 be in the joint occupation of A. and B. as lessees, when in fact 
 A. was only assignee of the lease, and B. was a mere joint 
 occupier (c?) ; or as where the right to coal under the estate 
 was shown to be in other parties, and no means existed of 
 determining its value (e) ; or as wdiere property was described 
 as "now or late in the occupation of H. R. and others," and 
 
 {x) Lcyland v. lUlngworth, G Jur. 
 N. S. 811 ; 2 De G. F. & Jo. 248. 
 
 (y) See PJullips v. Calddewjh, L. 11. 
 4 Q. B. 159. 
 
 (z) Price v. North, 2 Young & C. 
 Ex. 620. 
 
 (a) Earl of Durham v. Lajurd, 31 
 Beav. 611 ; but see, Cordimjlcij v. 
 Cheesehorourjh, 8 Jui'. N. S. 585, 755, 
 stated infra. 
 
 (b) Shcncood v. Rohins, Moo. & M. 
 191 ; and see 8 CI. & F. 792. 
 
 ((■) Lord Brooke v. Rounthimitc, 
 5 Ha. 298. 
 
 {d) Ridf/way v. Gray, 1 Mac. & 
 G. 109 : but see O'rissell v. Pcto, 2 
 Sm. & G. 39 ; Farchrother v. Gibson, 
 1 De G. & J. 603. 
 
 {o) SmitJmn v. Poire??, 20 L. T. 101.
 
 PARTICULARS AND CONDITIONS. 141 
 
 subject 
 were not disclosed (/). 
 
 it was in fact subject to leases for lives at low rents which Chap, iv, 
 
 Sect. 3. 
 
 The condition as to compensation usually provides that ^^^^^^ Jjj'jjj;^'^ 
 the amount shall be settled by arbitration ; and, frequently, condition, 
 that any dispute arising under the contract shall be similarly 
 referred. It has Ijeen held that an action lies for Ijreach of 
 such a stipulation {<j). 
 
 And it may be observed, that where the vendors are Whether 
 
 •' • • n trustee sh mhi 
 
 trustees they are not Justified in allowing compensation for use it. 
 their own errors, and a Court of E(|uity will refuse to act 
 upon a clause to that effect in the conditions (/<). 
 
 Instead of the usual condition providing for compensation Condition 
 
 . , ^. . . , that no 
 
 in the event of any onnssion or misdescription m the par- compens.ation 
 ticular, a condition is frequently inserted that in such a case allowed by the 
 no compensation shall be allowed by the vendor. In one vendor. 
 case, where land was described as containing la. 2r. 8p., and 
 the vendor showed a title to only 3r. 24p., it was held that, 
 under such a condition, the purchaser was bound to complete 
 without compensation (i). So where, by an unintentional 
 error, land was stated to contain 7,083 square yards, but in 
 fact contained only 4,o5() square yards, and the purchaser, 
 nothwithstanding the conditions, insisted on compensation, 
 though the vendor offered to vacate the sale, specific per- 
 formance was decreed at the suit of the purchaser, Init upon 
 payment of the whole of the purchase-money and costs (/•}. 
 But such a condition, if relied on by a vendor seeking to Condition 
 
 "' '^ that no coui- 
 
 enforce specific performance, can be held, to apply only to pensation 
 trivial errors ; and not to preclude a purchaser from the right allowed either 
 to compensation for a material deficiency in the f[uantity purchai-n"^' 
 
 (/) Har/Jics V. Jones, 3 De (i. F. & 394 ; ) Ilohon v. Bell, 2 Beav. 17. 
 
 Jo. 307. (0 Nicoll V. Chambers, 11 C. B.- 
 
 (.7) Livingston v. Ralll, 1 Jur. N. S. 996 ; and see Lethhr'uhjc v. Kirhinan, 
 
 Soi, Q. B. ; 2 C. L. R. 1096. 2 Jixr. N. S. 372. 
 
 {h) While V. C addon, 8 CI. & F. [I:) Cording/el/ v. Chcaeloronrjh, 8 
 
 766 ; (but see Hill v, Bucldey, 17 Ves. Jur. N. S. 585, 755.
 
 142 
 
 PAIITICULAHS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. '3. 
 
 As to deeds 
 and attested 
 
 copies. 
 
 What docii- 
 ments the 
 purchaser is 
 entitled to 
 have cove- 
 nanted to lie 
 produced. 
 
 stated, as where the property was stated to contain 7.j3 
 square yards, but in fact contained only 573 square yards (/) ; 
 or from avoiding the contract where the misdescription is of 
 such a nature as not to he a fit subject for compensation. 
 
 In the absence of stipulation, a vendor is bound to produce, 
 at his own expense, the originals of all deeds and other in- 
 struments necessary to verify the abstract (m) ; except copies 
 of court roll, and such instruments as are upon record ()i), 
 or have been lost (o) or destroyed ; as respects all which he 
 may verify his abstract liy secondary evidence (p) : he must^ 
 however, as a general rule, in order to render copies admis- 
 sible in evidence, prove the execution, and delivery of the 
 originals {q) ; which, when deeds are lost and the witnesses 
 are unknown, is often an insuperable difficulty. When the sale 
 is completed, the purchaser, if he cannot have the original title 
 deeds, is entitled to a covenant to produce them, and to attested 
 copies of the originals (y) : this right, how^ever, does not seem 
 to extend to old deeds not necessary to make a title (s) ; or 
 to copies of court roll, or instruments on record, unless (as 
 respects the covenant for production) they are in the vendor's 
 possession or power (t); or to documents used merely as 
 neo-ative evidence (ii) ; and now by the Vendor and Purchaser 
 Act, 1874, in the completion of any contract of sale of land 
 made after the 31st December, 1874, and subject to any 
 stipulation to the contrary, the inability of the vendor to 
 
 (Z) Whitemore v. Whitemore, L. E. 
 8 Eq. 603. 
 
 (m) Berry v. Youmj, 2 Esp. 640, n. ; 
 Sug. 447. 
 
 (n) Coojjer v. Enicnj, 1 Ph. 3S8. 
 It seems doubtful whether the rule 
 extends to deeds inrolled merely for 
 safe custody, and not under any sta- 
 tutory provision ; see 9 Jarm. Conv. 
 by Sweet, 10. 
 
 (o) Earrcy v. FMlUps, 2 Atk. 541 ; 
 as to what is sufficient evidence of 
 loss, see Green v. Bailey, 15 Sim. 
 542 ; Fitzwalter Peercuje, 10 CI. & F. 
 95.3 ; Hart v. Hart, 1 Ha. 1 ; StuLbs 
 V. Sargon, 4 Beav. 90 ; Richards v. 
 
 Lewis, II C. B. 1035 ; Beg. v. Saffron 
 inn, 1 El. & B. 93; Alhott v. 
 Gcraghty, 6 Jr. Jur. 49, L. C. 
 
 {p) See as to a recital being under 
 the circumstances sufficient secondary 
 evidence of the recited deed, Moulton 
 V. Edmonds, 1 Be G. F. & Jo. 246. 
 
 iq) Bryant v. Busk, 4 Euss. 1 ; 
 see, however, as to this, infra, Ch. 
 VIII. 
 
 (r) Bougliton v. JeweU, 15 Ves. 176. 
 
 (s) Dare v. Tuclcer, 6 Ves. 460. 
 
 (0 Vide infra, Ch. XIII. s. 6. 
 
 ((() See Cooper v. Emery, cited in 
 1 Hayes on Conv. 573.
 
 PARTICULARS AND CONDITIONS. l-i3 
 
 furnish the purchaser with a legal covenant to produce and Chap. IV. 
 
 . - 1 • .• Sect. 3. 
 
 furnish copies of documents of title, is not to be an objection , 
 
 to title, in case the purchaser will, on the completion of the 
 contract, have an equitable right to the production of such 
 documents (x). A legal covenant is, of course, a covenant 
 so framed as to run Avith the land at law; but it is by no 
 means clear what is meant by an " equitable right to produc- 
 tion," or how such a right can be enforced, except, perhaps, 
 against a holder of the deeds who took them with notice 
 of the liability to produce them. The Act does not contain 
 any definition of the term " land ;" and this rule cannot, it 
 is conceived, extend to a contract for sale of an incorporeal 
 hereditament. 
 
 Previously to the late Act, the attested copies and deed _ , 
 
 •' -^ At whose 
 
 of covenant had to be prepared at the expense of the expense to be 
 
 vendor (y) : if he wished to exclude, or to derogate from, the ^^''^' 
 
 purchaser's rights in the above respects, he must do so clearly 
 
 and explicitly in the conditions : but in one case a condition 
 
 that all attested copies, kc, which the purchaser might 
 
 require, " for the purpose of examination with, or verifying 
 
 or proving the abstract, should be sought for and procured 
 
 at his expense," was held to preclude him from requiring 
 
 on completion attested copies of the title deeds at the 
 
 vendor's expense (z). At Law, a condition that the deeds 
 
 of covenant shall be procured by, and at the expense of, the 
 
 purchaser, was held to throw upon him the risk of being 
 
 unable to obtain them, the vendors having procured produc- 
 
 ti.on of the deeds for the purpose of verification (a). But 
 
 now, in cases falling under the late Act, such covenants for 
 
 production as the purchaser can and shall require are to be 
 
 furnished at his expense ; and the vendor is only to bear the 
 
 expense of perusal and execution on behalf of and by himself, 
 
 (x) 37 & 38 Vict. c. 78, sect. 2. («) Gabriel v. SmitJi, 16 Q. B. 847 ; 
 
 iy) Bouyliton v. Jewell, 15 Ves. 176. but see and compare Osborne v. Ilar- 
 
 (:) Abbott V. Darnell, 2 Jur. N. S. rty, 7 Jiir. 229, V. C. K. V>. ; Cotton 
 
 631 ; and see Strong v. Strong, 4 Jur. v. Seudamore, 1 K. & J. 321. 
 
 N. S. 943 ; sed qmere.
 
 U4, 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV, 
 Sect. 3. 
 
 Provision as 
 to deeds on 
 sale of part of 
 mortgaged 
 estate. 
 
 and on Lulialf of and by necessary parties other than the 
 purchaser (h). It will be observed that this rule does not 
 provide how tlie expense of attested copies is to be borne ; 
 so that, in the absence of stipulation, the vendor, it is con- 
 ceived, will still be liable to prepare and furnish them at his 
 own cost. When property is sold in lots, it is almost the 
 invariable practice to throw the expenses of attested copies 
 upon the purchasers; and a solicitor would generally incur 
 personal liability by omitting a condition to that effect : the 
 condition, if so intended, should expressly provide for the ex- 
 pense of all attested copies, whether required for the verifica- 
 tion of the abstract, or for any other purpose (e). Particular 
 care to insert proper conditions as to deeds should be taken 
 upon the sale of a part only of an estate in mortgage, when 
 the purchase-money is not likely to pay off the incumbrance : 
 a deposit of the deeds with some third party, for the joint 
 Ijenefit of the mortgagee and purchaser, will, if acquiesced in 
 l)y the mortgagee, be the most eligible arrangement ((7). 
 
 Custo:ly of 
 deeds, on sale 
 in lots. 
 
 On a sale in lots, it is generally I'equisite to j^rovide for 
 the ultimate custody of the deeds, which, in the absence of 
 stipulation, go to the purchaser of the lot largest in value (c) ; 
 or rather, it is conceived, to the purchaser whose aggregate 
 purchase-money of land held under the same title amounts 
 to the largest sum. If, however, there be any lot which 
 may fairly be considered a principal lot, the purchaser of it 
 is usuall}^ made to take them and covenant for their pro- 
 duction : where the intention is that they shall belong to 
 the purchaser whose purchase-money amounts to the largest 
 sum, it may occasionally be well to provide for the con- 
 tingency of the two largest purchasers buying to an equal 
 amount. The exj)ression " largest lot" in such a condition 
 means the lot of largest superficial area (e). Under a con- 
 dition giving the deeds to the purchaser of the " largest lot," 
 he is of course entitled to them as against the purchaser 
 
 (6) 37 & 38 Vict. c. 78, sect. 2. 
 (c) See Ahhoit v. Darnell, 2 Jur. 
 N. S. G31. 
 
 (d) Sug. 435. 
 
 (e) See GriJIitJiS v. // tcJicml 1 K. & 
 J. 10.
 
 PARTICULARS AND CONDITIONS. l-iS 
 
 of lots of a larger aggregate area (/'). Such a condition Chap. iv. 
 fixes, by its acreage, though not hy name, the lot which is _ LJ__ 
 
 to carry with it the right to the deeds. When the vendor 
 retains any part of the estate to which the deeds relate, ho 
 is now, subject to any stij^ulation to the contrary in the 
 contract, entitled to retain them Qj). 
 
 Every condition intended to relieve the vendor from his TUie and 
 
 •^ •11 evidence of 
 
 2:>rimd facie (h) liability to deduce a marketable title, and title, 
 verify the abstract by proper evidence at his own expense, 
 must be expressed in plain and unambiguous language (i). 
 
 For instance, a condition that he shall not be bound to Production of 
 produce any original deed or other document than those in his 
 possession and set forth in the al;)stract, was held not to relieve 
 him from his liability to verify the abstract ; for iwv constat Must verify 
 
 abstract 
 
 that, Ijecause he has only certain specified deeds in his pos- aliunde. 
 session, he cannot prove his title (/i;). But where a contract 
 provided that the purchaser should admit the vendor's heir- 
 ship to the last owner upon a copy of his pedigree, and should 
 not require any further evidence, the purchaser was forced to 
 accept the title, although the copy of the pedigree failed to 
 trace the heirship (I). 
 
 So on an agreement by a vendor to sell a lease " as he held Against pro- 
 
 ° "^ , , duction 01 
 
 the same " for twenty-eight years, a condition that the pur- lessor's title, 
 
 (/) Scott V. Jachnan, 21 Beav.llO, buy the benefit of a proposal for a 
 
 following a decision of Lord Eldon lease, Baxter v. Vonollij, 1 Jac. & W. 
 
 in Kcnnaird v. Christie, ih. Ill ; and 576 ; and see as to restrictive con- 
 
 vide infra, Ch. XXL, sect. 5. ditions, Letlibridgc v. Kirhnan, 2 
 
 {(j) 37 & 38 Vict., c. 78, and vide Jur. N. S. 372 ; Strange v. Jfawkes, 
 
 infrd, Ch. XIIL, sect, 7. ib. 388 ; Phiirq)S v. CalddeugJ, , L. E. 
 
 (A) Suutcr V. DraJce, 5 B. & Ad. 4 Q. B. 159, 
 
 992 ; Doe v. Stanion, 1 M. & W. 695, (i) Osborne v. Harvey, 7 Jur. 229, 
 
 701 ; Hall v. Betty, 4 Mann. & G. V.-C. K. B. ; and sec Clarke v. Faux, 
 
 410 ; Worthinrjton v. Warrington, 5 3 Buss. 320 ; and Morris v. Kcarshy, 
 
 C. B. 636 ; aliter, as regards goods, 2 Y. & C, 139. 
 
 Morley v. Attenlorough, 3 Exch. 500, {k} SoutUy v. HiM, 2 Myl. & C. 
 
 see 51 4 ; but see Simms v. Marryat, 207 ; and see Dick v, Donald, 1 Bli 
 
 17 Q. B. 281. The natui-e of the N, S, 655 ; Osborne \. Jlarvey, suprd. 
 
 suV>jcct-inatter of the contract may {I) Nash v. Browne, 9 Jur. N, S, 
 
 vary the rule, as on an agreement to 431, V.-C, Stuart ; sed qucere. 
 
 VOL. I, r*
 
 14G 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. a. 
 
 On sale of an 
 underlea.so ; 
 
 cliaser should not i'e(|uii'o the lessor's title, would not, it 
 appears, prevent the latter from showing that the lease was 
 invalid (in). So on a sale of an underlease, a condition that 
 " no requisition or inquiry shall be made respecting the title 
 of the lessor or his superior landlord, or his right to grant 
 such underlease," was held not to preclude the purchaser 
 from objecting that the lessor, having mortgaged the premises, 
 had no power to grant the underlease (n). 
 
 Where simply 
 described as a 
 lease. 
 
 So, upon a sale of an underlease, described simply as a 
 lease, a stipulation that the vendor should not be called upon 
 to prove his title, was held to ho inoperative when it appeared 
 that the original lease comprised other premises, and contained 
 covenants embracing both properties and exposing the pur- 
 chaser to eviction through the default of the holder of such 
 other premises (o). And where the interest, being an under- 
 lease, was offered for sale without intimation of the fact, the 
 defect was held fatal, although there was a condition that the 
 purchaser should not call for the lessor's title (2^) ; but this 
 doctrine has been impugned in later cases (q). 
 
 So where leaseholds were stated to be sold " by order of 
 the executors," but were in fact sold by the administrator 
 cle bonis non of the testator durante ahsentid of his next of 
 kin, it was held that the title could not be forced upon the 
 purchaser (r). 
 
 {ill) See Sug. SG9, and see judg- 
 ment in Shepherd v. Kcatlcy, 1 Cro. 
 M. & R. 127, 128, dis.approving of 
 Spi'att V. Jeffery, 5 Man. & R. 188 ; 
 and see Wheeler v. Wrlfjht, 7 M. & 
 W. 359, 362 ; but see 2 Coll. 341 ; 
 and Hume v. Bentlei/, 5 De G. & S. 
 525 ; see Musjrave v, McCullufjli, 11 
 Ir. Ch. Rep. 496 ; Hume v. Pocock, 
 L. R. 1 Eq. 423 ; L. R. 1 Ch. Ap. 379. 
 
 (n) WaddcU v. Wolfe, L. R. 9 Q. B. 
 515, and ride infrci, p. 150 ; and V. & 
 P. Act, 1874, 37 & 38 Vict. c. 78, 
 sect. 2. 
 
 (o) BM-e V. Phlnv, 3 C. B. 976 ; 
 
 see Fildcs v. Ilooha-, 3 Madd. 193 ; 
 Darlin'jton v. Ilamiltoyi, Kay, 517. 
 
 (p) Madcley v. Booth, 2 De G. & 
 S. 718 ; see also Brumftt v. Morton, 
 3 Jur. N. S. 1198. 
 
 (q) See Darlingtonv. HamiUon,Ka,j, 
 557 ; Bartlett v. Salmon, 1 Jur. N. S. 
 277, V.-C. W., reversed, 6 De G. M. & 
 G. 33. 
 
 (r) Wchh V. Kirhj, 7 De G. M. & 
 G. 376, oTerruling V.-C. S., 3 Sma. 
 & G. 333 ; and see too Cruse v. Noicell 
 2 Jur. N. S. 536, where the condition 
 did not point directly to the objec- 
 tion.
 
 PARTICULARS AND CONDITIONS. 147 
 
 So where the conditions stated that the property -svas settled Chap. IV. 
 
 Sect 3 
 
 on A. for life, with remainder to her children, with a trust for LI 
 
 sale on her death, and that, the sale being in her lifetime, the ^°fpg°oT"^'' 
 children, their assigns or trustees, should join in the con- parties who 
 veyance, and it appeared that the children had settled their incompetent. 
 shares, and their trustees had no power to concui', the pur- 
 chaser recovered his deposit (s) : and an express agreement 
 to make a good title has, at Law, been held to bind the vendor 
 to remove defects in title, which were known to V)oth parties 
 at the date of the contract, and which were in their nature 
 removable (f). 
 
 In the al )sence of express stipulation, the conuiion condition, As to recitals 
 as to recitals being evidence, would not, it is conceived, bind dence. 
 the purchaser to accept recitals as evidence of conclusions of 
 law (w) : nor would it seem to preclude the purchaser from 
 proving aliunde the inaccuracy of the recitals as to matters 
 of fact. Whether this would be precluded even by the ex- 
 pression "conclusive evidence," ma}^ be doubtful; at any 
 rate such a condition would not avail, if it contained any 
 misrepresentation upon the point in question (./'). 
 
 The conditions usually provide that deeds more than A.s to dec.ls 
 twenty years old shall l)e conclusive evidence of every- ohfbemg^'^'^ 
 thing stated, noticed, assumed, or implied therein. Where evidence, 
 the condition was that they should be evidence of every- 
 thing recited or stated, it was held that, in order to l)ind 
 a purchaser, the statement ought to be something alleged 
 by way of direct recital, and not mere matter of infer- 
 ence (^). Of course such a condition would not 1)0 suffi- 
 cient to make sulvrecitals evidence. And now, in the 
 completion of any contract of the sale of Jand, made 
 after the 81st December, 1874, and sul:)ject to any stipu- 
 lation to the contrary in the contract, recitals, statements, 
 
 (s) Mosdoj V. IHdc, 17 Q. B. 91. {.r) Drysdale v. Mace, 5 De G. M. & 
 
 (0 Burnett v. Whcckr, 7 M. & W. G. 103. 
 304. {y) Buchanan v. Poppldon, 4 Com. 
 
 ((/) 9 Jarm. Conr. by S. 4 ; Goohl 13en. N. S. 40 ; 4 Jur. N. S. 414, 
 V. White, Kay, 683, 
 
 L '2
 
 148 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 and descriptions of facts, matters, and parties contained in 
 deeds, instruments, Acts of Parliament, or statutory decla- 
 rations twenty years old at the date of the contract, are, 
 unless and except so far as they shall be proved to be 
 inaccurate, to be taken to be sutiicient evidence of the 
 truth of such facts, matters, and descriptions (a) ; but this 
 rule, which does not bind the purchaser to accept mere 
 matters of inference, is less comprehensive than, and in 
 practice is not likely to supersede, the ordinary condition. 
 
 As to statu- 
 tory declara- 
 tions being 
 accepted as 
 evidence. 
 
 Where the evidence of some fact on which the title 
 depends is insufficient, and there are no better means of 
 verification, it is frequently provided that the purchaser 
 shall be satisfied with a statutory declaration confirmatory 
 of the title in the point in which it is defective. If such 
 declaration has been actually made, it should be referred 
 to and identified as a subsisting instrument. If it has 
 yet to be made, its proposed efiect should be clearly stated ; 
 or, which is better, a copy should be referred to: and, if 
 practicable, the proposed declarant should be specified ; a 
 clause being added, providing for the substitution of some 
 other competent person in the event of the death, refusal, 
 or incapacity of the person so specified : and there should 
 be no question as to the competency of the declarant to 
 speak to the facts which he alleges (b). Where, as fre- 
 quentl}^ happens, the declarant states what he cannot pos- 
 sibly know except by hearsay, his declaration is of small 
 value as evidence. 
 
 Vendor boimd 
 to answer 
 relevant 
 questions. 
 
 And the author conceives it to be a general rule, and it 
 is one which ho has constantly enforced in practice, that a 
 vendor, to the best of his information, is bound to answer 
 all relevant questions put to him in respect to the property 
 which he has contracted to sell, or the title thereto ; unless 
 the 2')riind facie lia])ility in this respect is expressly nega- 
 tived 1 »y the conditions : and that a condition that a pur- 
 
 (rt) 37 & 33 Vict. c. 78, sect. 2. 21 B' av. 307. 
 
 ('/) See as to this, Kott v. lilccan!,
 
 PARTICULARS AND CONDITIONS. 140 
 
 chaser shall Ije satisfied with certain specified evidence Chap. IV. 
 
 merely provides for an assumed absence of better evidence ; U 
 
 and does not enable the vendor to keep back such better 
 e^ddence if he actually has it, or to withhold any informa- 
 tion which may be in his possession. 
 
 The foUowino; point often arises in practice. A lar^e ^s to dcck- 
 
 ® -^ . , . . i-ation of 
 
 estate in the same locality lias been acqmred Irom tnne possession 
 to time, and is held under a variety of early titles. Up- i^ent^ of 
 wards of twenty years aero the whole was put into settle- ^-"^"'^^ ^^^^'^ , 
 
 •/ "^ ° ^ under several 
 
 ment, and has been since held under such settlement. It titles, 
 is now put up for sale in numerous lots, and it is impossible 
 to identify the modern with the ancient general descrip- 
 tions. The vendors accordingly sell under a mere condition 
 that evidence of twenty years' possession shall be evidence 
 of identity of parcels. The vendors' solicitor then, almost 
 at random, as respects each particular lot, selects from the 
 early titles such a title as he considers to be appropriate ; 
 and supplements it by the general settlement, and the 
 subsequent assurances (if any). The purchaser calls for 
 evidence of identity, and is offered a declaration of twenty 
 years' j^ossession. Now such a declaration, referring as it 
 does merely to a possession subsequent to the union of the 
 titles, obviously cannot show, or tend to show, that the 
 lot is held under one rather than another of those several 
 prior titles, the assurances in which are expressed in terms 
 capable of comprising such lot. The declaration and con- 
 dition can, it is submitted, only bind tlie purchaser to 
 assume that the lot passed under some one or more of 
 the several possibly relevant prior titles ; and as the vendor 
 cannot show which in particular is the true prior title, it 
 may be well contended that he is l)Ound to abstract oil. 
 Such a liability might in many cases be very serious ; and 
 should, where circumstances require it, be guarded against 
 by a condition more stringent than the one in ordinary 
 use. It must also Ijc borne in mind that in a case such 
 as is above supposed, the doubt as to under which of several 
 titles a particular lot is held, affects it with the aggregate 
 imperfections of ail such prior titles.
 
 150 
 
 rAllTICULAIlS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 Conditions, if 
 explicit will 
 bind pur- 
 chaser. 
 
 But though mere general or doubtful expressions, sug- 
 gesting, but not specifjdng, a flaw in the vendor's title, 
 may not bind the purchaser (c), he is bound by a clear ((?) 
 stipulation as to title {e), e. g., an agreement by assignees 
 of a bankrupt to sell his estate " under such title as he 
 recently held the same, an aljstract of which may be 
 seen" (/) ; or that the purchaser should only have the 
 receipt and convej^ance of A. (an equitable mortgagee), 
 and the assignees (g) ; an agreement by ordinary vendors 
 to convey "such title as they have received from A. and 
 B. " (h) ; and a condition that the pui-chaser should accept 
 the vendor's title "without dispute" (i) ; or should accept 
 " such title as the vendor has" (k) : so, an agreement that 
 the lessor's title shall " not be inquired into," has been 
 held to preclude objections arising on the face of documents 
 procured by the purchaser aliunde (/) ; so, where a breach 
 of trust, invalidating the title, was clearly stated in the 
 conditions (»i) ; so where a purchaser was precluded from 
 objecting that no payment had been made for twenty 
 
 (c) See Edioanls v. Wichvar, L. 
 E. 1 Eq. 68. 
 
 {(l) Scaton V. jl/ajip, 2 Coll. 556, 
 562 ; Forstcr v. Iloggart, 15 Q. B. 
 155 ; Worthingfon v. Warrington 5 
 C. B. 636 ; Lethhridgc v. Kirhnro), 2 
 Jur. N. S. 372. 
 
 (c) But see Darlington v. Hamil- 
 ton, Kay, 558 ; infra, n, (1), scd qu. 
 
 (/) Frcme v. Wright, 4 Madd. 364. 
 
 ig) Groom v. Booth, 1 Dre. 548. 
 
 (h) Wilmot V. Wilkinson, 6 B. & C. 
 506; Ashv:orthv. Mounsaj, 9 Exch. 175. 
 
 (0 Duhe V. Barnett, 2 Coll. 337 ; 
 and Molloy v. Sterne, 1 Dru. & Wal. 
 585, agreement by A. to lease for 
 " the longest term he could grant ; " 
 and see Anderson v. Higgins, 1 J. 
 & L. 718 ; and Lord St. Leonards' 
 remarks, V. & P. 874, on Cattell v. 
 Corrall, 3 Y. & C. 413 ; and see 
 Corrall v. Cattdl, 4 M. & W. 734 ; 
 but see also Smith \. Ellis, 14 Jur. 682. 
 
 (k) Kcyse v. Heydon, 20 L. T. 
 244, V..C. W. ; Ticeed v. MiV,^, L. E. 
 1 C. P. 39. 
 
 {I) Hume V. Bcntlcy, 5 De. G. & 
 S. 520 ; see, however, Darlington v. 
 Hamilton, Kay, 550 ; but there, the 
 stipulation in the condition did not 
 preclude "inquiry "in other quai-tcrs ; 
 it was merely directed against requi- 
 sitions on the vendor to prove the 
 title. And see comments on Hume v. 
 Bcntlcy, and Darlington v. Hamilton 
 in Wadddl v. Wolfe, L. E. 9 Q. B. 
 515, where the word " inquiry " was 
 treated as convertible with " requisi- 
 tion," and the condition was held not to 
 preclude inquiry a//!((!c/c. The doctrine 
 laid down in the second paragrai:)h of 
 the judgment in Darlington v. Hamil- 
 ton that whatever may be the terms of 
 the condition of sale, if the purchaser 
 obtain infoi-mation cdinnde that the 
 title of the vendor is not clear and 
 distinct, he has a right to insist upon 
 the objection, appears to be too 
 broadly stated. 
 
 (m) Nicholls v. Corhctt, 3 De G. J. 
 & S. 18.
 
 PARTICULARS AND CONDITIONS. lol 
 
 years of a rent the subject of sale (n) ; so, a condition Chap. iv. 
 binding- a purchaser, if he considered the legal estate out- " . 
 
 standing, to be at the expense of getting it in, Avas held 
 to throw on him the risk of making- out in -whom the 
 legal estate was vested (o). And, as a general rule, if 
 facts are fully disclosed, their legal effect need not be 
 stated (2:>). 
 
 Even the special circumstances of the contract, indepen- Kiglit to call 
 dently oi express stipulation, may show that no title was be exdiukd 
 intended to be produced or called for ((f) ; and in considering |.'i^.<fuj^"tances 
 whether an objection to the title is sufficiently brought before 
 the purchaser's notice by the conditions of sale, the fact of 
 his being an able and experienced member of the legal pro- 
 fession is not immaterial (r). 
 
 Where a vendor of leaseholds agreed to produce a good Coiulitiou 
 and marketable title, commencing from the fi'eeholder, but no conclusive, 
 title was to be called for prior to the lease from A. B. to the 
 vendor, and it appeared that the agreement for this lease 
 had been morto-ao-ed, and otherwise dealt with, it was held 
 tliat the vendor, as plaintiff, could not refuse to produce this 
 equitable title («). And it has been held that, if instead of 
 simply stating the material facts, and then stipulating that 
 the purchaser shall accept such title and interest as the de- 
 tailed circumstances confer on the vendor, and no other, — in 
 which case the purchaser would probably be bound to take 
 the title, whatever it might be — the conditions go on to 
 state, not as a conclusion of Law from the narrated circum- 
 stances but as a positive and distinct fact, that the vendor 
 has a right to sell the property, the purchaser, inasmuch as 
 such right may have arisen from separate and independent 
 sources, is entitled to require the right to be proved (t). 
 
 (n) Hanhs v. PuUiinj, 2 Jur. N. S. 15 Beav. 46. 
 372. (»•) See Minet v. Lemun, 20 lieav 
 
 (o) Offl. Mail, of Shecrncss W. W. 269 ; 7 De G. M. & G. 340. 
 Co. V. Poison, 3 De G. F. & Jo. 36. (a) Rhodes v. Ibbclson, 4 De G. il. 
 
 (p) Smith V. Wntts, 4 Drew. 338. & G. 787. 
 
 (q) See Richardson v. Eyton, 2 De (<) See .Johnson v, Smikif, 17 Beav. 
 
 G. M. & G. 79, 88 J Godsoii v. Tin-ncr, 233.
 
 152 
 
 PAKTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 That abstract 
 shall com- 
 mence with 
 specified docu- 
 ment. 
 
 Does not 
 preclude 
 objections. 
 
 A condition that the abstract shall commence with a 
 specified document, the peculiarities or deficiencies of which 
 as a root of title are not noticed, seems merely to preclude 
 the purchaser from ohjccting to the title as commencing at 
 too recent a period ; so that if the instrument in question is 
 apparently an imperfect root of title, he may require the im- 
 perfection to be remedied : so, a mere condition against pro- 
 duction of the earlier title would not, it is conceived, 
 preclude him from requiring the production of recited in- 
 fjtruments which, as recited, appear to be of a suspicious 
 character (tc) ; nor will the deduction of a sixty (or now 
 forty) years' title on the face of the abstract preclude him, 
 in the absence of an express stipulation, from requiring an 
 inspection of title deeds in the vendor's possession of an 
 earlier date than those abstracted {x). So, an agreement to 
 accept a possessory title merely points to the evidence by 
 which it is to be supported, and the vendor is still bound 
 to prove sixty (or now forty) years' possession {y). 
 
 Nor will a mere condition against production, except 
 perhaps in a very special case {z), prevent a purchaser from 
 investigating and objecting to the earlier title, if he have 
 the collatei'al means of doing so (") : and, although bound 
 to accept the title as it stands, ho may yet require to be 
 satisfied, to the best of the vendor's ability, as to what that 
 title really is Qj). So, although a jDurchaser be bound by 
 the condition to accej^t certain specified evidence as sufficient 
 proof of a material fact, he may yet require to be satisfied 
 that the vendor has no better evidence in his possession ; and 
 may, it would seem, insist on a statutory declaration to that 
 effect (c). In one case where A., for his own purposes, in- 
 
 («") See and consider Scllich v. 
 Trevor, 11 JM. & W. 722 ; Phillips v. 
 Cahldcugh, L. R, 4 Q. B. 159. 
 
 (x) Parrv. Loregrove, 4 Drew. 170, 
 180 ; but see the special circum- 
 stances in this case. 
 
 (y) Douglas v. L. N. W. R. Co., 3 K. 
 & Jo. 173. 
 
 (z) Hume v. Pocod; L. R., 1 Ch. Ap. 
 379 ; L. R. 1 Eq. 423. 
 
 (a) Shepherd v. Keatley, 1 Cro. M. 
 & R. 117. See observations on this 
 case in Darlington v. Uamitton, Kay, 
 558, and Waddell v. Wolfe, L. R. 
 9 Q. B. 515. 
 
 (6) See Keyse v. llcydon, 20 L. T. 
 244, V.-C. W. ; Morris v. Kearsley, 2 
 Y. & C. 139. 
 
 ((•) Bird \. Fox, 11 Ha. 48.
 
 or defective. 
 
 PARTICULARS AND CONDITIONS. 153 
 
 duced B. to buy from C, and shoi-tly afterwards agreed to Chap. IV. 
 
 purchase from B., who was only to produce the title from G. LJ — 
 
 to himself, A. was not allowed to prove aliunde that C. had 
 no title {(l). 
 
 If, therefore, the earlier title be merely wanting, the con- J^^"^^*^''^!^^^ 
 dition should provide for the abstract commencing with a early title loot 
 specified document (the nature and effect of which should 
 be stated, if it be of such a kind as not to form a satisfactory 
 root of title) ; and the purchaser should be precluded from 
 requiring the production of the earlier title, or of any earlier 
 documents which may be recited or noticed in the abstracted 
 title : if the earlier title be defective, or if the recited 
 missing instruments are of a suspicious character, the con- 
 dition should be extended, so as to preclude him from 
 requiring, investigating, or making any objection to the 
 earlier title, or any document prior to the counnencement 
 of the abstract, although subsequently recited or referred to. 
 
 And in some cases it may be prudent, in using very special Production of 
 
 - . , ^ -i c abstract before 
 
 conditions, to state, that an abstract may be inspected before sale sometimes 
 
 , , , advisable, 
 
 the sale. 
 
 Where conditions in-ovidc that the opinion of Mr. A. B., As to opinion 
 
 . . . ^ . of counsel 
 
 an eminent counsel, in favour of a point m the title, shall being binding, 
 be conclusive on the purchaser, the vendor is not, it is 
 conceived, at liberty to suppress the fact that Mr. C. D., a 
 counsel of, it may be, much less eminence, has given a 
 different opinion. 
 
 It is often requisite to insert conditions providing for Identity of 
 defects in evidence of the identity of the parcels ; such 
 conditions, however, will not relieve the vendor from the 
 necessity of pointing out what the entire property is which 
 he intends to convey ; nor (unless expressly framed to meet 
 the case), will they do more than provide for mere dcjicitnckn 
 
 {d) II WM V Pocock, L. 11., 1 Ch. the special circumstances. 
 Ap. 379 ; L. K. 1 Eq. 423 ; but see
 
 154 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. in evidence ; that is, they will not provide for rc^mgnances, 
 ' nor for an entire absence of evidence (e). 
 
 When part of For instance, a condition that a certain plot of land could 
 
 prnperty 
 
 taniKit bu not be properly identified by the vendor, Ijut it being fairly 
 
 ' presumed that the purchaser, by inquiry in the neighbour- 
 
 hood, would be able to ascertain its true situation, he was to 
 accept the plot by the description only contained in the 
 conveyance deed of it, was held inoperative, even at Law, 
 when it appeared that the plot did not exist or could not be 
 discovered (f). 
 
 or cannot be ^0, a condition that "the purchaser is not to require any 
 
 identified ; 
 
 further proof of the identity of the property than is fur- 
 nished by the title deeds themselves," is insufficient in the 
 absence of proof of identity as to the whole or part of the 
 property (<j). It is in effect a contract that the deeds shall 
 show identity; and if they do not, a good title is not made (Jt). 
 
 or descriptions go a Condition that no further evidence of identity of the 
 
 are inconsis- -11 
 
 tent. parcels should be required than what was afforded by the 
 
 deeds, instruments, and other documents abstracted, did not 
 preclude a requisition for further evidence when the descrij)- 
 tions of the parcels in the abstracted documents varied from 
 those in the particulars and from each other (i). 
 
 On sale of Upou a sale of intermixed lands of different tenures, under 
 
 different t^iG coiiiiiion coiiditioii as to identity, the purchaser seems to 
 
 tenures, |^g g|.^jj entitled (k) to have the land of each particular tenure 
 
 pointed out and distinguished by its boundaries (/). 
 
 But wdiere an estate was sold a« containing la. 2r. 8p., and 
 the conditions provided tliat the quantities should be taken 
 as stated, whether more or less, "although the title deeds or 
 
 (e) Curlin'j v. Austin, 2 Dr. & Sm. (t) Fhmer v. Hartopp, 6 Beav. 476. 
 
 129, q. v. ' (^0 Monro v. Taylor, 8 Ha. 51. 
 
 (/) Robinson v. Musgrove, 2 Moo. {I) See Dawson v. Brinckman, 3 
 
 & E. 92. Mac. & G. 53 ; 3 De G. & S. 385 ; 
 
 (g) Curling v. Austin, ubi supra. and Ci-oss v. Laurence, 9 Ha. 462 ; 
 
 {h) V.-C. K. in Curling y. Austin. sujmi, 149.
 
 PARTICULARS AND CONDITIONS. lo." 
 
 Court Rolls state such quantities to be less," and that no Chap. iv. 
 evidence of identity should be rei^uired, the purchaser was ' 
 
 held b(jund, although the abstract showed a title to only 
 3r. 24p. (m). So, in Equity, where the purchaser instead of 
 vacating the contract, insisted on its specific performance, he 
 was held bound to take, without abatement from his pur- 
 chase-money, an estate described as containing 7,GS3, but in 
 fact containing only 4,3o(), sc^uare yards (n). 
 
 In the case of copyholds, the generalty and vagueness of Vague 
 
 the descriptions on the Court Rolls are unimportant, if the of copyholds 
 
 vendor can show that the property has been actually held ^"'"'-'i*^'^^- 
 under such descriptions (o). 
 
 The Courts, it may be remarked, look with jealousy on Stringent 
 conditions negativing a purchaser's right to a substantially notVavouroLl 
 good title, or to the usual and reasonable evidences of title : ^^ Court, 
 it has in fact been observed by an eminent Judge (j>), that in 
 some cases it would be almost a fraud for a vendor to bring 
 a title to market with a condition that the pin-chaser shoidd 
 accept it. At any rate, such conditions should not be used 
 to a greater extent than is necessary, as their tendency is to 
 damp the sale ; and this not so much l)y diminishing the 
 biddings of parties who actually attend, as by keei^ing away 
 others who are alive to their objectionable character. The 
 prejudicial efi'ect of even the most stringent conditions is, 
 liowever, practically far less than might be reasonably an- 
 ticipated. 
 
 And it may be observed, that, on a sale in lots, tlie ^'enllor Abstract on 
 should either verify the abstract at his own expense, or should bo ' 
 
 ritied at 
 ndor's 
 
 purchasers in some specified proportion ; otherwise the pin-- expense. 
 
 the expense of verification should be divided amoni-- tlie ^'■'"l"-"'; 
 
 '■ , o vendor s 
 
 (m) Nicollx. Chambers, \\ C.13. 996. Bcnllci/, 5 Do G. & S. 527; See too 
 
 {n) Cunlinylcyv. Checuboronrjh, 8 Jur. Jackson v. Whitehead, 28 Beav. 154; 
 
 N. S. 585, 755; 31 L. J. Ch. 617 ; and Smith v. Harrison, 5 W. E. 408; 
 
 si^cLcthbridycv.Kirkman,2 JuT.'N.S. Wardc y. Biclson, 5 Jur, N. S. 698; 
 
 372 ; and vide supra, p. 141. Edv:ards v. Wiclcv-ar,'L. R. 1 Eq. 68 ; 
 
 (o) Lowj V. Collier, 4 Euss. 267. See too Hoy v, Smithic-'^, 2 Jur. N. S. 
 
 (/') Sir James Parker, in Hume v, 1011.
 
 156 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. chaser who first calls for evidence may be at the sole cost of 
 
 Sect. 3. • '± 
 
 procuring it. 
 
 Expense of 
 searches, &c.; 
 
 There must be express conditions where the vendor in- 
 tends to throw upon the purchaser the expense of such 
 searches as are usually made by the vendor, of travelling 
 to a distance to examine the abstract with the deeds, or the 
 like (q) : and a condition that the purchaser shall have a 
 proper conveyance at his own expense, does not throw upon 
 him the expense of procuring the concurrence of necessary 
 parties (r). 
 
 of getting in 
 outBtandiug 
 torui. 
 
 Condition 
 that the 
 property shall 
 be taken 
 subject to all 
 easements, &c. 
 
 It is also usual to provide that the purchaser shall be at 
 the expense of getting in and procuring the surrender or 
 release of any outstanding legal estate or tei'in ; Ijut such a 
 condition does not extend to a mortgage term which is on 
 foot at the time of sale, even though provision may have 
 been made for satisfying the mortgage (s). 
 
 A condition is usually inserted that the property shall be 
 taken subject to all rents, rights of Avay and water, and other 
 easements (if any) charged or subsisting thereon ; the effect 
 of such a condition is not, it is conceived, to relieve the ven- 
 dor from the necessity of disclosing these liabilities, if he is 
 aware of them, but simply to protect him, if it should after- 
 wards transpire that the property is subject to some rent, 
 right, or easement, in favour of a third person, of which he 
 was ignorant at the time of sale ; and where one tenant has 
 acquired a right of way against another tenant, under the 
 same landlord, and both tenements are simultaneously sold 
 by the landlord under a condition that they are to be taken 
 subject to, and with tlie benefit of, all subsisting rights 
 of way, the purchaser of the one tenement gains no right of 
 way against the purchaser of the other (t) ; the meaning of 
 
 (g) See Sug. 34, where the pro- 
 jiosition as to searches is unqualified. 
 
 (r) Faramorc v. Grccndadc, 1 Sin. 
 & G. 5-11. 
 
 (,s) Stronfjc V, Ifnvhes, 2 Jur. N. S. 
 
 388 ; vide supra, p. 150. 
 
 {t) Daniel v. Anderson, 8 Jur. N. S. 
 328 ; and see finffield v. Brown, 33 L. 
 J. Ch. 249 ; Eimdl v. Harford, L. E. 
 
 2 Eq. 507. 
 
 I
 
 PARTICULARS AND CONDITIONS. 157 
 
 the condition Ijeing that if there are any rights of way as ci^ap. iv. 
 ao-ainst the vendor, the purchaser shall take subject to them. ^^^^- ^- 
 
 If the estate be subject to incumbrances which camiot or indemnity 
 are not intended to l)e discharged, they must be mentioned ^^f^^^^^^ ^^^ 
 in the particulars or conditions (?t). It often happens that 
 property is subject to charges which, from particular circum- 
 stances, (such as there being other amjDle security,) are never 
 likely to be enforced, although they cannot be immediately 
 released : in such cases it is advisable to state the facts as 
 clearly and openly as possible, and stipulate that the pur- 
 chaser shall make no olyection in respect of the matters so 
 mentioned : if, as may often be the case, an indemnity 1 )e 
 offered, its nature shall be explicitly stated (*). A condition 
 that a purchaser should presume the extinction of a charge 
 upon the ground of its non-recognition for a specified period 
 is not binding, if the charge, although not so described, is in 
 fact reversionary (y). A condition to give a specified in- 
 demnity will be specifically enforced in Equity (z). 
 
 It has become very usual to insert conditions («) restricti\'e Time for 
 of the time within which objections or requisitions may be anj foi- ' 
 taken, or made by the purchaser ; and enabling the vendor ^0^""^').^"° 
 to annul the sale, if objections are taken, or requisitions 
 made, which he is unable or unwilling to remove or comply 
 with ; the latter condition, in fact, is inserted by many 
 practitioners, as a matter of course, in all but the very 
 plainest cases ; and is now commonly introduced even on 
 sales by the Court of Chancery ; and is not such a depre- 
 ciatory condition as may not be used by a fiduciary 
 vendor (6). The condition should be framed so as to entitle 
 
 (it) See Torrance v. Ballon, L. E. Casamajor v. Strode, 1 Wil^. C, C. 
 
 14 Eq. 124; L. R. 8 Gh. Ap. 118, 428. 
 
 where the incumbrauces were men- (;/) Drysdale v. Mace, 5 De G. M. 
 
 tinned in the conditions, but not in & G. 103. 
 
 the particular, and tliis was held to (:) Walker v. Barnes, 3 Madd. 247. 
 
 be insufficient. {a) Their validity recognized, Black- 
 
 {x) See 1 Dav. Conv. 627. As to hum v Smith, 2 Exch. 783 ; rowcll v. 
 
 how a general agreement to give an Smithson, 20 L. T. 105, L. C. 
 indemnity will be c.irried out, sec (b) Falkncr v. Bquitalle Jievij. 
 
 t'oUrell V. yVatkins, 1 Beav. 3(31 ; Society, 4 Drew 3r)2.
 
 158 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 the vendor to rescind, not merely on the purchaser insisting 
 upon some ol)jection as to ^^7/^, but on his insisting on any 
 objection or requisition as to either title or conveyance ; 
 and should provide that the right may be exercised not- 
 withstanding any intermediate negotiation in respect of 
 such objection or requisition. 
 
 When vendor 
 justified in 
 rescindinf;'. 
 
 "Satisfactory" 
 means 
 
 "marketable " 
 title. 
 
 A vendor is entitled under such a condition to rescind the 
 contract, notwithstanding that it pro^'ides for compensation in 
 case of any error or mistake in the description of the property 
 or of the vendor's interest therein (c) ; and he may do so even 
 after a bill has been filed by the purchaser for specific perform- 
 ance, and a subsequent waiver of the objection will not 
 revive the contract (d) ; and where the vendor himself files 
 a bill for specific performance he may, it seems, at any time 
 before the cause comes on for hearing, rescind under such a 
 condition, but only upon the terms of getting his bill dis- 
 missed with costs (e). But where the vendor's right to 
 rescind arises on the purchaser's insisting on an objection, 
 which the vendoi' is unal^le oi' unwillmg to remove, the 
 latter is not justified in rescinding, if the former, on being 
 made acquainted with the fact, at once waives his 
 objection (/) ; and the vendor must first answer the requi- 
 sitions, even though some of them may be untenable, and 
 thus give the purchaser an opportunity of waiving them (y). 
 If the condition 1)0 for rescinding the contract, in case the 
 title shall not prove " satisfactory " to the j^urchaser, this 
 will not authorize him to make any other than the usual 
 oljections (It). 
 
 Time .should The condition, in order to preclude questions on the point, 
 
 be limited t -, t • • • i • t • ^ n n • • i • 
 
 mthin which sliould hmit a time withm which further requisitions or 
 
 (c) Maivson v. Fletcher, L. E. 10 
 Eq. 212 ; affd. L. R. 6 Ch. Ap. 91 ; 
 where, according to the particular, 
 the estate contained freestone and 
 limestone, which, however, belonged 
 to the lord, and not to the vendor. 
 
 \il) Hoy V. Smtkks, 22 Bcav. 510. 
 
 (e) Wardew. Diclson, 5 Jur. N. S. 698. 
 
 {f) Duddell V. Simpson, lu II. 1 Eq. 
 578 ; L. R. 1 Ch. Ap. 102. 
 
 (fj) Greaves V. HVZso?^, 25 Bea v. 290 
 Turpin v. Chambers, 29 Beav. 104. 
 
 (/() Lord v. Stephens, 1 Y. «fe C.
 
 PARTICULARS A^D CONDITIONS. 159 
 
 objections, in answer to replies or further (locuinents Chap. IV. 
 furnished by the vendor, must be sent in by the purchaser. ^^^' ' 
 
 further olijec- 
 tions are to be 
 
 But a condition restrictive as to the time within which taken. 
 the purchaser's requisitions are to lie made cannot be relied tiondoes^not'" 
 on, where there are oTave obiections to the title, which are apply where 
 
 ^ •' the objections 
 
 not discoverable on the face of the abstract. In one case (/), are not 
 V.-C Kinderslc}^, on dismissing the plaintiff's bill for the abstract. 
 .specific performance, said tliat under the ordinary condition 
 limiting the time for making requisitions, if facts were sub- 
 sequently discovered showing that the vendor had no title, 
 or a bad title, or one ojDen to the greatest possil)le doubt, 
 he for one would never hold that the purchaser was pre- 
 cluded from raising objections, if the facts on which they 
 were founded were not known to him Avhen lie delivered his 
 requisitions. 
 
 Nor can the condition bo relied upon by a vendor who Or where 
 knowingly enters into the contract with a clearly defective knowhigly 
 title to a portion of the estate : for instance, where a person HH^ defective 
 entitled in remainder subject to a life estate, contracted to 
 sell the fee simple in possession, hoping that the tenant for 
 life would concur, which she refused to do, the purchaser 
 Avas allowed to take the reversion with a compensation, 
 although there was a condition for rescinding the contract 
 if a good title could not be made, which condition the vendor 
 wished to enforce (/:) : nor does the condition apply where 
 the vendor has been guilty of wilful misrepresentation (/) : 
 whether or no it applies to a case which falls within a con- 
 dition as to compensation seems to be doulitful (m) ; and a 
 vendor cannot make use of such a condition for the purpose 
 of getting rid of the duty which attaches to him upon the 
 
 (i) Wanle v. Dkhson, 5 Jur. N. S. hekl entitled to rescind, and vale. 
 
 G98. supra, p. l.'JS. 
 
 (/.•) Nelthorpc v. Holgatc, 1 Coll. (/) See Price v. Mucaulay, 2 De G. 
 
 203 ; but see Thomas v. Dcrlnrj, 1 Ke. M. & G. 347. 
 
 729 ; and see also Mawsonv. Flctcho; (m) IFoij v. Smithies, 22 Pjoav. [>\0. 
 
 L. R. 10 Eq. 212 ; L. 11. C, Ch. Ap. Compare Afawwtiv. F/clrhci; L. R. 10 
 
 01, where the vendor, notwithstanding E4. 212 ; L. R. C> Cli. Ap. 01. 
 the clause as to compensation, was
 
 IGO PARTICULARS AND CONDITIONS. 
 
 Chap. IV. rest of Lis contract : thus if he has undertaken to give 
 , possession, he cannot avail himself of the condition to escape 
 
 compliance with the purchaser's requisition that a party 
 wrongfully in possession shall be ousted before comple- 
 tion (71-). 
 
 Or where Nor docs the Condition enable a vendor to refuse to show 
 
 purchaser is ,• ,1 , ,t p . -i. -i 
 
 wiiiint^ to ^ title, or to procure the concurrence 01 a moi-tgagee, 11 he 
 complete, ^qH^ f^QQ fi-gm incumbrances (0) ; or to rescind the contract, 
 
 as against a purchaser who is willing to waive the oljjection 
 or requisition, and take the propei-ty without compensa- 
 Where the tion (/>) : Ijut it enables a vendor, who has in fact a good 
 apply- ^'''^ *"*^^ title, and who has duly performed his duties under the 
 contract, to rescind upon a requisition being insisted on, 
 which is either frivolous or untenable, or which, on the 
 ground of expense or for other sufficient cause, he cannot 
 reasonably be expected to comply with (q). Thus, where 
 time was made of the essence of the contract, and on the 
 day named for completion, the vendor executed the con- 
 veyance, and demanded payment of the purchase money, 
 which the purchaser refused on the ground that two requi- 
 sitions as to the registration of a deed and the sufficiency of 
 a stamp, (both of which the vendor was able and had under- 
 taken to comply with,) were still unsatisfied, the vendor, 
 having given notice of his intention, was held justified in 
 rescinding the contract (?'). 
 
 The condition is usually framed so as to cover objections 
 and requisitions, " whether in respect of title, conveyance, or 
 otherwise " (s). Where, however, a purchaser required that 
 certain annuitants, whose concurrence was held unnecessaiy, 
 should join in the conveyance, it was considered that this 
 was an oljjection to the title within the meaning of the con- 
 
 (n Engel v. Fitch, L. R. 3 Q. B. 4 Beav. 269 ; Williams v. Edwards, 
 
 314 ; and see Greaves v. Wilson, 25 2 Sim. 78. 
 
 Beav. 290. ^s 'S^'^^''^'^'"'-'^'^'"^'""'"?^^*" <^' (q) Greaves v. Wilson, xili supra; 
 
 (0) Greaves v. Wilson, 25 Beav. 290. and eee Paije v. Adam, 4 Beav. 269. 
 
 (p) See and consider Roberts v. (r) Hudson v. Temple, 29 Beav. 536. 
 
 Wyatt, 2 Tannt. 2GS ; Page v. Adam, (.s) Greaves v. Wilson, 25 Beav. 290.
 
 TARTICULARS AND CONDITIONS. 101 
 
 (lition (f). But the condition should in tenns extend to requl- Chap. IV. 
 
 1 Sect. 3. 
 
 sitions. Wliere ordinary leaseholds Avere erroneously 
 
 stated to be renewable by custom, this was held to be a mis- 
 description of the subject matter of sale, coming within 
 the compensation clause ; and not a defect in title within 
 the meaning of the condition for rescinding (a) : so, where 
 the amount of the fines was mis-stated on the sale of a 
 manor (.'■). 
 
 It has been held that a vendor by replying to the pur- Ri-ht to 
 
 ... . ,1 • vj. + I'escind lost 
 
 chaser s objections or requisitions, waives the right to y,y replying to 
 rescind the contract, and also the benefit of the condition o'^jections. 
 limiting the purchaser's time for taking ol,»jections, etc. (that 
 is, supposing them not to have been taken within such 
 limited time) (y) ; but according to modern decisions a 
 vendor cannot properly exercise his right to rescind, until 
 he has first answered the requisitions, and given the pur- 
 chaser an opportunity of withdi-awing them (z). And tlie 
 light to rescind may, of course, be lost by acquiescence in, or 
 confirmation of the contract (^0 5 <^'^" ^^7 ^ P^^'^'^ variation of 
 the condition, the non-compliance with v^dlich gave the right 
 to rescind (6). 
 
 It seems, however, probable that mere argumentative Exceptions 
 replies would not amount to such a waiver : and that replies 
 of any description, if returned " without prejudice," or with 
 any similar reservation of the vendor's rights, would escape 
 the rule above referred to (c) : or it may, it is conceived, 
 be avoided, by the introduction, into the condition, of the 
 w^ords " notwithstanding any intermediate negotiations," or 
 some equivalent expression. 
 
 For the purposes of such conditions, time runs i\om the Time nms 
 
 from (leliv 
 of " perfec 
 abstract." 
 
 ,, „ „ , , -,, ,^ , • lij. from delivery 
 
 delivery of a perfect abstract (d) ; that is, an abstract as ^,f » p^^f^^t 
 
 (0 /'«yf V. Adam, i Beav. -260. MX'idloch v. Grcjonj, 1 K. & J. 294. 
 
 («) Painter v. Nachy, 11 Ha. 26. (-) Tide suprd, p. loS. 
 
 (r) Hoy V. Smithies, 22 Beav. 510. («) Supra, p. 3 05. 
 
 {y) Tanner v. Smith, 10 Sim. 410 ; {h) Duuson v. Yates, 1 Beav. SOI. 
 
 see the same case on appeal, 4 Jur. ic) See Morley v. Coolc, 2 J la. IOC. 
 
 310 ; Cutis V. Thodey, 13 Sim. 206 ; (</) Hohion v. Bdl, 2 Beav. 17. 
 Lane V. Dehenham, 11 Ha. 1*^' ; 
 
 vor.. T. *•
 
 1C2 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 3. 
 
 peifect as the vendor, at the time of delivery, has in his 
 either actual or constructive possession (c) ; or, (as a learned 
 judge has exj^ressed it,) an abstract " which contains with 
 sufficient clearness and sufficient fulness the effect of every 
 instrument which constitutes part of the vendor's title" (/) : 
 but a vendor would not be at liberty designedly to deliver 
 an imperfect abstract, or otherwise to neglect his duties 
 under the contract, for the purpose of rescinding the contract 
 under such conditions {[/). 
 
 Objections on 
 
 subsequent 
 
 evidence. 
 
 And the condition as to time does not preclude a purchaser 
 from taking subsequent objections arising out of evidence 
 called for before the expiration of the limited time (Jt) : 
 such objections must, however, it is submitted, be taken 
 within a corresponding period after the production of such 
 evidence (/). 
 
 As to resale, 
 and forfeiture 
 of deposit ; 
 how far 
 bindinsi'. 
 
 It is usual, and proper, to insert a condition providing for 
 a resale of the property, and forfeiture of the deposit, in case 
 the purchaser fail to comply with the conditions (/•) ; and 
 that any deficiency upon such resale, together with the costs 
 thereof (I), shall be borne by the purchaser. Equit}^ how- 
 ever, will, at least when the purchaser is bankrupt (7}i), set 
 off the deposit against such deficiency ; and the vendor s 
 equitable right to the deposit in any case where the pur- 
 
 » 
 
 (e) Morlei/ v. Cool:, 2 Ha. Ill ; 
 Steer v. Crowley, 9 Jur, N. S. 1202 
 C. P. 
 
 (/) V.-C. Kindersley, in Oalalen v. 
 Pike, 11 Jur, N, S. 666 ; and see 
 Parr v. Lovegrove, i Drew, 170. 
 
 (f/) Page v. Adam, 4 Beav. 209 ; 
 Morley v. Cool; ubi supra ; Roberts v. 
 Wyatt, 2 Taunt. 268. 
 
 (A) BlacUow V. Laws, 2 Ha. 40 ; 
 Morley v. Coolc, ibid. 112. 
 
 (i) See and consider SJierwin v. 
 Shal-speare, 5 De G. M. & G. 530 ; 
 and vide suprd, p. 158. 
 
 (k) See Gee v Pearse, 2 De G. & S. 
 341. 
 
 (l) It has been held that these 
 costs cannot be proved in Bank- 
 ruptcy, although the vendor may 
 apply the proceeds of a resale in 
 their discharge, and then towards the 
 payment of the original purchase- 
 money, and may prove for the defi- 
 ciency ; A'x parte Hunter, 6 Ves. 98 ; 
 and see Ex parte Lord Seaforth, 1 Ro. 
 300 ; and Ex imrte Gyde, 1 Gl. & J. 
 323 ; but see and consider 12 & 13 
 Vict. c. 106, ss. 177, 178 ; 24 & 25 
 Viet. c. 134, s. 153 ; and see Griffith & 
 Holmes' Bankruptcy Law, pp. 587 
 et seq. 32 & 33 Vict. c. 71, s. 31. 
 
 (m) Ex parte Hunter, 6 Ves. 94.
 
 PAllTICULARS AND CONDITIONS. 103 
 
 chaser is aUo and willing to put liini in the situation in Chap. IV. 
 which he would have been had the contract been duly per- ' . ' .. 
 
 formed, isdoul)tful (n) ; but the condition can be enforced at 
 
 Law (()). If, upon a resale, the estate were to produce more 
 
 than the original purchase-money, the purchaser who had 
 
 violated Ins agreement could not call for an account of 
 
 the surplus (j)). A stipulation that the purchaser making Condition 
 
 default shall pay a specified sum (exceeding the amount of of penalty 
 
 the deposit,) as liquidated damages, does not amoinit at Law ' •^'-"'o'l'* '^ • 
 
 to a condition for the foi'feiture of the deposit (r/) : nor is the 
 
 usual condition for forfeiture of tlie deposit any bar to an 
 
 action for general damages, if the purchasers refuse to 
 
 complete (r) ; but after a I'esale at a loss the vendor cannot 
 
 sue for the oiiginal purchase-money (.s). Where the dej^osit 
 
 lias been forfeited, and the vendor claims for the deficiency 
 
 on the resale, the deposit will be taken into account in 
 
 assessing the damages (/). The omission by fiduciary 
 
 vendors to enforce the common clause, is not necessarily a 
 
 breach of trust (ii). 
 
 In the preparation of special conditions it is important to Tacts stated 
 
 • m T 1 1 p must be 
 
 remember, that a purchaser, unless specially precluded irom pruved. 
 
 so doing, may require evidence of all matters of fact stated 
 
 in any condition which goes to restrict his pfuiid fdcie 
 
 rights (x). It has, in fact, been suggested (^), that the Whether 
 
 ordinary condition throwing upon the purchaser the exj)ense preduded^ 
 
 of procurino- evidence to verify the abstract, does not ^™"^ eMdence 
 
 i- >^ J may recpiire 
 
 preclude him from requiring all such information as to facts information, 
 as is necessary to comj)lete the abstract : so that, although 
 precluded from requiring, except at his own expense, any 
 evidence of a death (material to the title), he may yet insist 
 on being informed when and where such death occurred : in 
 
 (n) Moss V. MatthcKs, 3 Ve.s. 279 ; {t) Ovlcciukn v. Henley, 4 Jur. N. S. 
 
 Sug. 39 ; and ride infrd, Ch. V. s. 1. 999 ; 1 Ell. Bl. & Ell. 485. 
 
 (o) Nicollv.CJumhers,!! C.li.d^ij. (n) Thomson v. Christie, 1 Macq. 
 
 (p) Per Curiam, 6 Ves. 97. H. L. C. 236. 
 
 {<{) Palmer v. Tcmi,lc, 9 Ad. & E. (•'•) Symons v. James, 1 Y. k C. C. 
 
 508. C. 487. See Johnson v. >^milc>/, 17 
 
 (r) Jceli/ V. Grcic, G Nev. & M. 4(J7. Beav. 233. 
 
 (s) Lamoinl v. Pavall, 9 Q. B. 1030. (y) Jarm. Conv. vol, ix. p. 53. 
 
 M 2
 
 1G4 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV 
 Sect. 3. 
 
 Sect. 4. 
 
 As to what 
 
 special cou- 
 
 ditions are 
 
 generally 
 
 requisite in 
 
 various 
 
 specified 
 
 cases. 
 
 ^Yhat condi- 
 tions expe- 
 dient on sale 
 of inclosed 
 lands. 
 
 As to validity 
 of award. 
 
 As to enrol- 
 ment. 
 
 many cases the expense of obtaining such infoi'ination would 
 be nearly the same as that of obtaining the usual evidence 
 of the fact ; and the point, although (it is conceived) not 
 often insisted or capable of being insisted on in practice, may 
 sometimes be usefully guarded against by the conditions. 
 
 (-i.) As to wJicU spcGud conditions are rjewiraUy requisite 
 in various specified cases. 
 
 Upon a sale of lands held under an Inclosure Act, it will 
 often be expedient to negative the jDurchaser's primed facie 
 right to evidence of the validity and regidarity of the award ; 
 and attention must be paid to the rule which, when an 
 allotment has been made indiscriminately in respect of lands 
 held under different titles, requires the production and proof 
 of all such titles ; a rule which, if not guarded agaiast, may 
 occasionally lead to expenses which will swallow up the 
 purchase-money {z). This precaution, however, as to the 
 validity and regularity of the award, is not necessary 
 where the case falls Vvdthin the 8 tfc 4 Yict. c. 31, which 
 provides that all awards made in pursuance of that Act, 
 or under the General Inclosure Act (6 & 7 Wm. IV., 
 c. 115), shall be conclusive evidence that all the provisions 
 of those Acts have been complied with, and that no other 
 evidence than the awards shall be requisite to establish the 
 title. The want of enrolment of the award is remedied by 
 the 3 &: 4 Will. IV., c. 87, in cases where the award was 
 executed before the passing of the Act ; and by the 17 *^" 18 
 Yict. c. 97 {('-), the Commissioners are enabled to extend the 
 time for enrolment. Where the estate, in respect of which 
 the allotment is made, is conveyed to the purchaser prior to 
 the actual award, the right to the allotment goes with it (]>) ; 
 and an allottee may, before the actual award, sell and convey 
 the legal estate in his allotment, apart fi'om the right or 
 interest in respect of which it is allotted (e). 
 
 {£) Dav. Conv. 1, 462. 
 
 (a) See sect. 7. 
 
 (h) Doe v. Willis, r, Bmg. 441 ; 
 Sugd. 374 ; and see now S & 9 Vict. 
 c, 118,8. 84. 
 
 ((•) See Kiiigsleij v. Young, 17 Vea. 
 40S, affd. 18 Ves. 207 ; Doe v. Saunder, 
 'i Ad. & E. 664, and cases cited ; and 
 see S & 9 Vict. c. 118, s. 84.
 
 PARTICULARS AND COXDITIOXS. 1G5 
 
 It will also generall}' be proper to insert a condition in Ciuip. IV. 
 respect to an}- reservations or liabilities nnder the Act or ' 
 
 award. Such a reservation, e.g., of mines and the right to 
 work them, or manorial rights generally, will, if expressed in 
 general terms, affect lands sold by the Commissioners for the 
 payment of expenses, as well as ordinary allotments ('/). 
 
 Where the pro])ertv com])rises strips of waste land re- Land fur- 
 
 . •I'll ii'^ily ^^'aste. 
 
 cently inclosed, some special stipulations as to title will 
 almost invariably be necessary (e). 
 
 In some districts it seems to have been a common practice 
 for parties to inclose such strips with the permission of the 
 lord of the manor, upon payment to him of a small annual 
 sum, but without any assurance or written agTeement ; and 
 then to deal with them as freehold, subject to a chief rent- 
 In such a case the tenure seems to be merely that of a 
 yearly tenancy. 
 
 As between landlord and tenant, the former is presumably tlncroach- 
 
 . uientb. 
 
 entitled to encroachments made by the latter during his 
 tenancy (/) ; but this general presumption may be negatived 
 by evidence proving the tenant's title {(j) ; and it is n(.)t 
 necessary that the encroachment should be contiguous to the 
 land held by the tenant ; but only that it should be in such 
 proximity as to lead to the presumption that his position as 
 tenant enabled him to approve (//). In the absence of an 
 express stipulation to the contraiy, there is in E<ji;ity an im- 
 plied agreement that the tenant is to hold any encroachment 
 upon the same terms as his original lease (<"). Where part of 
 
 (rf) Bucdeuch {Duke of) v. Wake- see also, as to encroachments, &c., by 
 
 Jield, L. E. 4 E. & Jr. Ap. 377. trustees, Att.-Gen. v. Corjy. of Cashdt 
 
 (f) See, as to the presumption of 3 Dru. & W. 294, 309. 
 ownership of such strips, Steel v. (,7) See Doe v. Masscij, 17 (>. B. 
 
 Prickett, 2 Stark. N. P. C. 463 ; Doe 373 ; Andrcus v, Hailcs, 2 El. & 13. 
 
 V. Pearmj, 7 B. & C. 304 ; Gruse v. 349 ; Doe v. Tldbari/, 14 C. B. 304 ; 
 
 West, 7 Taunt. 39 ; and Scoones v. Kinrjsmill v. Milhtrd, 11 E.xch. 313. 
 Morrcll, 1 Beav. 251 ; et vide Infru, {!() Bad of Lisbunic v. Dcu-ic.s,L. 11 
 
 Ch. Vlir. 1 C. v. 259. 
 
 (/) See Doe d. Lloijd v. Junes, 15 (0 White v. Warktey, 4 Jur. N. S. 
 
 M. & W. 580, and cases cited ; and 988 ; see, and distinguish, Drummond,
 
 166 
 
 TARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 
 Sect. 4. 
 
 Grants from 
 the Crowu. 
 
 the property consists of an encroachment, and either the ordi- 
 nary presumption, or the evidence rebutting it, is doubtful, a 
 special stipulation as to title will be necessary. 
 
 Upon a sale of tithes held as lay property, or of other 
 property held under a grant from the CroAvn, the vendor 
 should protect himself from being required to produce the 
 oiiginal grant, if it is lost or not in his possession. 
 
 Enfranchised 
 copyholds. 
 
 Where the property has been recently enfranchised {k), the 
 production of. the manorial title must be guarded against, if 
 the vendor be unal^le to produce it : or, if produced, it may 
 sometimes be well to guard against any question as to the 
 right of the purchaser to require evidence of the manor 
 having, since the enfranchisement, been enjoyed conformably 
 with the earlier title (/). Where, however, the enfranchise- 
 ment has been effected under the General Enfranchisement 
 Act, it is not necessary to show the lord's title (m). 
 
 Whether a 
 person 
 assuming to 
 act as lord can 
 enfranchise. 
 
 By the 4 & 5 Vict. c. o-"), enabling enfranchisement by 
 ^'oluntary arrangement, the word " lord" is to include a person 
 tilling that character, or acting in that capacity, whether right- 
 fidly entitled or not (;n) ; and by the 15 & 16 Vict. c. 51, it 
 is to include a person seised for life, or in tail, or in fee 
 simple, and the Avords italicized are omitted (o). Notwith- 
 standing the omission, it would seem that a compidsory 
 enfranchisement under the latter Act may be effectual, even 
 in cases where the person assuining to act as lord has no 
 title (/>). 
 
 Copyholds 
 
 formerly 
 
 waste. 
 
 Where, in the case of copyholds, the title depends upon 
 
 V. Sant, L. E. G Q. B. 763. As to 
 validity of settlements by parties 
 holding by encroachment or otherwise 
 by a voidable title, see Ycm v. 
 Edwards, 1 De G. & Jo. 599. 
 
 [Ic) Vide Infra, Ch. VIII. 
 
 (l) See 1 Jarm. Conv. by S. 83. 
 
 (m) Kerr v. Pauson, 2.5 Beav. 394 ; 
 and see 4 & 5 Vict. c. 35, s. G4 : C & 7 
 
 Vict. c. 23 ; 7 & 8 Vict. c. 55 ; 15 & 
 IG Vict. c. 51 ; 16 & 17 Vict. c. 57 ; 
 21 & 22 Vict. c. 94. 
 
 («) Sect. 102. 
 
 (o) Sect. 52. 
 
 (j5) See and consider Kerr v Paw- 
 son, ubi suprd, and 21 & 22 Vict, 
 c. 94, s. 2, repealing the 11th section 
 of 15 & 16 Vict. c. .'-1.
 
 PARTICULARS AND CONDITIONS. 167 
 
 grants, luado by the lord of the manor, of part of the waste, it Chap. IV. 
 will, in general, be expedient to provide that no evidence shall ' 
 
 be required of such grants being authorized by the custom 
 of the manor : in some manors, however, the right is well 
 established. 
 
 When property is sold subject to agreements for leases, it Unstamped 
 
 ^ ^ "^ '' ^ agreement, 
 
 should be seen that the agreements are properly stamped, or 
 
 any requisition founded on the want of a stamp should be 
 
 guarded against {q). 
 
 Upon a sale of leaseholds, the following points will require Leaseholds. 
 attention :— 
 
 To neo-ative the purchaser's rin-ht to the production of the ^^yamst 
 
 ^ ^ o J. production of 
 
 lessor's title, if, as usually happens, the vendor cannot produce lessor's title, 
 it ; if the interest to be sold be an underlease, the condition 
 should (if so intended) clearly refer to the title as well of the 
 sub-lessor as of the original lessor ; but if the lease be by a 
 Bishop, of lands held by him in right of his see, a purchaser 
 has no prlmd facte right to production, and any condition 
 respecting the lessor's title may be omitted (/•). The same 
 rule would, it is conceived, j^revail in the case of a lease by a 
 Dean and Chapter. A condition that the lessor's title shall 
 not be oljjected to will not, it is conceived, absolutely bind 
 the purchaser if there is a material flaw in the title, endanger- 
 ing his safety, which is not disclosed by the vendor (s). 
 
 The necessity for such a condition, at any rate on the sale Rule against 
 
 „,..', ^ ,, .. -,, production in 
 
 of a derivative lease, or of an underlease, is not superseded v. &p. At, 
 by the Vendor and Purchaser Act 1870, which provides as ■^^^^• 
 one of the rules Avhich, subject to express stipulation, are to 
 regulate the obligations and rights of vendor and purchaser, 
 that under a contract to grant or assign a term of years, 
 whether derived or to be derived out of a freehold or lease- 
 hold estate, the intended lessee or assign is not to be entitled 
 
 (9) Smit?i v.Wyley, 16 Jur. 1136. [s) Lerou V. Morjfovd, 2 Jur. N. S, 
 
 (r) Vide infrct, Ch. VIII. 1085.
 
 1G8 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 4. 
 
 Covenants in 
 1; a:^e, how to 
 be noticed. 
 
 to call for the title to the freehoLl (t). According to this 
 rule, the purchaser of an underlease may, in the absence of 
 express stipulation " call for " the title of his sub-lessor ; nor, 
 it is conceived, is such a purchaser, or a purchaser of the 
 orio-inal lease, precluded by this rule from making any 
 objection or requisition, not involving an actual production, 
 in respect of the freeholder's title, or from requiiing proof of 
 his right to grant the lease. ''■ To call for the title " Avould 
 seem naturally to mean " to call for its production " or, " to 
 require it to be deduced ;" but even if the rule could be con- 
 strued as precluding the right to make any requisition in 
 respect of the title, it is still less comprehensive than the 
 condition in ordinary use ; which, when it is in the form that 
 the lessor's title shall not be inquired into, may, as we have 
 seen (u), preclude an objection taken aliunde. 
 
 The covenants in the lease should never be referred to as 
 '•'usual:" except, perhaps, in the case of property forming 
 part of a large estate, where the form of the leases is a matter 
 of notoriety : the preferable plan is, to produce an abstract or 
 copy of the lease at the time of sale ; and to state the mten- 
 tion so to do in the particulars or conditions, and to stipulate 
 that the purchaser shall be deemed to have full notice of its 
 Ci )ntents : but a reasonable opportunity of examining it 
 should be allowed him (x). 
 
 What are 
 " usual cove- 
 nants." 
 
 Covenants to pay laud-tax, sewers' rate, and all other taxes, 
 and a proviso for re-entry, if any but a specified business shall 
 be carried on, have been held to be " usual" (//) ; so in a lease 
 of an hotel, a condition of re-entry on the lessee's becoming 
 bankruj)t (::) ; so, too, a covenant that the lessee shall make 
 good any damage occasioned by tire (") ; and where a land- 
 lord agreed to demise at a 3'earh' rent " free of all outgoings," 
 and to grant a lease on tlie abo^"e and other " usual " terms, 
 
 (0 37 & 38 Vict. c. 78, sect. 2. 
 
 (?/) Vide sii2vd p. 150. Hume v. 
 Bentley, 5 De a. & S. 520. 
 
 (x) Brv.mfit v. Morton, 3 Jiir. N. S. 
 1198. 
 
 (j) Bennett v. Womarl-^ 7 B. & C. 
 
 G27 ; Brailhurj v. Wrt^jht, 2 Doug, 
 (J24. 
 
 (:) Haines v. Burnett, 27 Bear. 
 500 ; but not in a mining lease, Hodij- 
 I- in sour. Crowe, Wi Hiif lito\ p. 'JiT "^ 
 
 {") Kendall v. Uitl, G Jur. N. S. 9'J3. 
 
 > L.R-(^.^^, 5:^^
 
 PARTICULARS AND CONDITIONS. KjO 
 
 it was hiAd tliat tlio iialility to pay the land-tax and tithe Chap. IV. 
 
 connnutation rent-charge fell upon the tenant (h) ; so, too, an ' 
 
 exceptional expense, incurred for a permanent improvement 
 under the Metropolis Management Acts, has heen held to fall 
 within the ordinary tenant's covenant to pay all rates au'l 
 assessments whatsoever in respect of the premises (c) ; but a 
 covenant restrictive of the right of alienation is not a " usual " 
 covenant ('/). 
 
 It is also, in general, necessary to provide that certain As to evidence 
 specified evidence (usually the production of the last receipt ^c., having ' 
 for rent), shall he sufficient evidence of the performance of £^^^j^J^|^^"' 
 and compliance with the covenants and conditions in tiio 
 lease, up to tlie completion of the purchase. Where the con- 
 dition was, that " the possession under the lease should be 
 deemed conclusive evidence of the due performance, or suffi- 
 cient waiver of any breach, of the covenants in tlie lease up 
 to the completion of the sale," it was held that the purchaser 
 was fixed with notice of possible breaches of covenant prior 
 to the contract, which must be taken to be waived ; but no 
 opinion was expressed as to what would have been the effect 
 of the condition, if it had been proved that the landlord 
 intended to enforce the forfeiture («) : and the conditi()n 
 was held not to cover breaches committed by the vendor 
 himself after the contract, and before the completion of the 
 sale. It is conceived, however, that any subsisting breach, 
 if -\\4thin the vendor's knowledge, ought to have been 
 expressly mentioned; and that the condition was properly 
 applicable only to breaches, of which he had no notice, or 
 wluch he had good reason for believing to be waived. Nor 
 Avill such a condition bind the purchaser if there is a reason- 
 able bond Jide doubt as to who is the reversioner entitled 
 
 (6) /'rtm/t V. )S'/cc//t'(/), 1 l)e G. F. & serted in ;i building or repairing 
 
 Jo. 320 ; in effect overrnling Cran- lease, see Ea^tvn v. Prate, 'J Jur. 
 
 eton V. Clarke, Sayer 78. N. S. 1345. As t<> the effect of thcj 
 
 (r) Thonipson V. LapiL'orth, L. R. 3 qualifying word;? "but such consent is 
 
 C. P. 149. i">fc to be arbitrarily withheld" see 
 
 id) Buckland v. PapUlon, L. R. 1 Trcloar v. Bt^yc, L. R. 9 Exch. ISk^t^ ^^ ^^'^ ^^'^ X,' r <«„^- 
 E.!. 177 ; L. R. 2 Ch. Ap. 67. As to u.) IfoiccU v. K!'jhtk>j, 21 Beav. f - " :*°' /'7 vc^ 
 
 the covenants which ought to be in- 331. L pi l a
 
 170 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV 
 Sect. 4. 
 
 Yv here there 
 has been a 
 breach of the 
 covenant to 
 insure . 
 
 to receive the rent (/'). Where it was stipiUated that the 
 production of the last receipt for rent should be conclusive 
 evidence that all the covenants had been performed, the pur- 
 chaser was precluded from objecting that the lease had been 
 forfeited by reason of dilapidations, which existed at the 
 date of the contract (</). A difficulty of this kind has often 
 arisen upon the covenant to insure against fire. Where there 
 has been merely a past omission to insure, but the existing 
 insurance is according to the terms of the covenant, the con- 
 dition as to waiver may be relied on ; but where the existing 
 insurance is improperly effected (//), there is a continuous 
 breach de Oh in diem of the covenant to insure and keep 
 insured in the specified manner, and the sufficiency of the 
 condition may be open to serious question {}). We ]nay 
 remark that the omission for a single day to pay the premium 
 within the time allowed by the office is a breach of covenant 
 inducing a forfeiture ; and is not cured by the subsequent 
 Nowremedie.1 acceptance of the premium by the office (/.•). Now, however, 
 bond fide purchasers are, by Lord St. Leonards' Act, 22 & 23 
 Vict. c. 85, protected against forfeiture of the lease, by reason 
 of a prior breach of the covenant to insure, if they have a 
 receipt for the last payment of rent, and there is a valid 
 insurance on foot at the time of completing the purchase ; 
 and it has been held that if the breach has been committed 
 since the passing of the Act, the Court has power under the 
 4th section to relieve against the forfeiture, notwithstanding 
 that the covenant broken was entered into previously to the 
 Act (/) : but a vendor, in the absence of a condition to that 
 effect, cannot compel a purchaser to rely upon this section of 
 the Act (}h). 
 
 by the 22 & 
 23 Vict. c. 3 
 
 Title of rever- 
 sioner when 
 
 If a waiver, either express, or made sufficient by the con- 
 
 (/) Pcjhv V. White, 10 Jur. N. S. 
 330. 
 
 (r/) Bull V. Jfiitrhins, 32 Beav. 615. 
 
 {h) See Pcnnkdl v. Ilarhornc, 11 
 Q. B. 308 ; Iloicns v. MkWktov, 10 
 Ha. 641. 
 
 {i) HoiK-ell V. Klfjldley, ubi svjjrd. 
 
 {k) Wilson y. Wifsov,U C. B. 616 ; 
 
 Jnh V. Banister, 2 K. & Jo. 3r4 ; afifd. 
 5 W. R. 177. The Crown can waive 
 a forfeiture by acceptance of rent ; 
 Brklgcs v. Lonrjman, 24 Beav. 27. 
 
 {D Payc v. Bennett, 2 Giff. 117; 6 
 Jur. N. S. 419. 
 
 (m) Turner v. Marriott, V.-C. K., 
 31 July, 18GC.
 
 PARTICULARS AND CONDITIONS. 171 
 
 ditioiis, bo relied on l)y the vendor, and the landlord giving Chap. IV. 
 
 it is a different person from the original lessor, a condition ^^^^-^ 
 
 precluding investigation of the lessor's title will not preclude ^^J^^-^f^J^'j^^J" 
 the purchaser from requiring the title to be traced from the 
 original lessor to the person whose Avaiver of the breach 
 of covenant is relied on (h). 
 
 When leasehold proi^erty is sold in lots, it is also necessary As to appor- 
 
 ^ ^ .,.,.. tionment of 
 
 to provide for the apportionment of the rents and liabilities rent and 
 under the lease (o). This cannot be done effectually where, g^ieMiTotr 
 as is usually the case, the lessor refuses, or is incompetent, to 
 concur. Underleases, (the original term being retained either 
 by the vendor or one of the purchasers,) with covenants for 
 mutual indemnity, are frequently resorted to ; in fact, neces- 
 sarily so, Avhere, in the case of buildings, the original lease 
 contains a covenant to insure against fire in a given sum: 
 and in such a case, the assignee of the lease must covenant 
 to indemnify the other purchasers against any breach of the 
 covenants of the original lease in respect of any part of the 
 property (/)). Cross powers of distress and entry are often 
 relied on in other cases : but the plan proposed, whatever it 
 be, should be stated in the conditions (q). The same point 
 arises on a resale, in parcels, of freehold land which has been 
 sold subject to a reserved rent and covenants. 
 
 Upon the sale of renewable leaseholds, it will probably be ^'n «ale of 
 
 ■■■ .,,.,. renewable 
 
 necessary to provide against the production of the title prior leaseholds, 
 to the subsisting lease (r). 
 
 Upon the resale of a reversion, it may often be prudent to On sale of a 
 
 1 . reversion. 
 
 provide, that no evidence shall be reijuired of the sufficiency 
 of the consideration paid on the original purchase (s) ; if 
 such purchase, however, were by auction, or were subsequent 
 
 (h) Turner v. Mavnotl, uhl supra. ren v. Batcnuo, 1 FI. & K. 455. 
 
 (o) See Taylor \. Martindalc,! Y. [p) Brownv. PaHU,2J\\v.'N.S.317. 
 
 & C. C. C. 658 ; Barnvdl v. Harris, iq) See 1 Dav. Conv. 475. 
 
 1 Taunt. 430 ; Bowks \: Waller, Hay. (r) Vide infra, Ch. VIII. 
 
 441 (where a receipt by a Crown col- (.s) See Boswdl v. Mcndham, 6 
 
 lector was held to be evidence of ap- Madd. 373 ; see now 31 Vict. c. 4. 
 portionment) ; and see note to M'ar-
 
 172 
 
 PARTICULARS AND COXDITIONS. 
 
 Cbap. IV. to 1st January, 18G8, tlie condition would seem to be unnc- 
 
 Sect. i. ^,s 
 
 cessaiy (r). 
 
 As to cove- Although it is a 3-eneral rule that a trustee or mortgagee, 
 
 iiants on siilc 
 by trustet-t^, 
 
 &c. cumbrances (a), it is not unusual, and is perhaps expedient, 
 
 kc, enters into no covenant for title except that against in- 
 cumbrances (a), it is not unusual, and is j 
 to insert a special condition to that etiect. 
 
 Section 5. 
 
 Gen oral re- 
 marks ou 
 special condi- 
 tions. 
 
 As to use of 
 special con- 
 ditions by 
 trustees, &c. 
 
 When it 
 amounts .to 
 breach of 
 trust. 
 
 Use of certain 
 special con- 
 ditions by 
 mortgagee 
 approved of. 
 
 (o.) General remarks on special conditio ns. 
 
 Upon sales by trustees, mortgagees, and other persons 
 filling a tiduciary character, great care is requisite in the use 
 of special conditions ; since, if improperly used, they may 
 not only involve the vendors in personal liability to their 
 cestui que trust, kc, (x), but also prevent their making a 
 good title. 
 
 In order to have this effect the conditions must be un- 
 necessary, and of such a depreciatory character that their 
 use amounts to a breach of trust : it may, however, often be 
 difficult to determine whether a gi\'en condition comes within 
 this definition {>/). 
 
 Upon a sale by a mortgagee, the use of conditions com- 
 pelling a purchaser to take all objections within tAventy-one 
 da}' s from the delivery of the abstract, that all copies of 
 deeds, kc, not in the vendor's possession, .should be obtained 
 at the expense of the purchaser, that any mis-statement, kc, 
 should not a)inul the sale but be tlie subject of compensation, 
 and that the vendor might resell on Itreach of conditions by 
 the purchaser, was considered by Lord Langdale to form no 
 objection to the title (i). 
 
 (t) Shtlloj V. XasJi, 3 Madd. 232 ; 
 et vide infra, Ch. XIV. s. 2. 
 
 (u) See Worletj v. Frampton, 5 Ha. 
 560. 
 
 (jc) See Duiu-c \ . twldinrjho m,!^.!!. 
 8 €h. Ap. 902, and ride infra, p. 174. 
 
 (y) As to special conditions gene- 
 rally, see remarks of the M. R. in 
 Jloy V. Siiiit?iics, 22 Beav. '>lCi ■ Greaves 
 
 V. Wilson, 25 Beav. 290 ; and as to 
 depreciatory conditions, see Fidhicr 
 V. L'qii italic Rcl: Soc, 4 Drew. 352 j 
 Bcde V. Oukcs, 10 Jur. N. S.1246; 
 and vide sujivd, p. 73. 
 
 (:) Huhson v. Bell, 2 Beav. 17 ; and 
 see Borell v. Dann, 2 Ha. ii'-i, 445 ; 
 and Groom v. Booth, 1 Dre. 548.
 
 PARTICULARS AND COXDITIONS. 173 
 
 Upon a sale by a mortgagee, witli a title believed to be Chap. IV. 
 marketable, although complicated, the use of a condition ' 
 authorizing the mortgagee, in the event of objections, kc, 
 being taken which he could not remove, to rescind the 
 contract on returning deji Jsit, interest, and costs, and of a 
 condition that purchasers, whose purchase-money sliould not 
 amount to a specified sum, should pay for their abstracts, 
 (except the abstract of the mortgage deed,) was sanctioned 
 by the late Mr. Duval. The former condition has since been 
 held to be one which a prudent owner would introduce, and 
 therefore binding on the mortgagor (a). 
 
 On a sale in a siny-le lot, there seems to be considerable As to ex- 
 
 difficulty in drawing any distinction between a condition difference 
 
 throwing on a purchaser the expenses of copies of deeds, befweeuuse 
 
 kc, (as in Hohson y. Bell,) and one imposint; on him r^???/ of sufh con- 
 
 ^ _ -^ . . ditions by 
 
 expenses connected with the sale which would lie incurred trustees/&c., 
 merely on his own requisition, whether regai'ding the verifi- several lots 
 cation of the abstract or otherwise: in each case the ^nd on sale in 
 
 one lot. 
 purchaser submits to pay certain indefinite expenses in the 
 
 event of his insisting on their being incuiTed ; and, in 
 
 general, the trust estate probably saves in costs what it 
 
 loses in purchase-money. The case, however, is dift'erent 
 
 on a sale in several lots, where the expenses of verifying 
 
 the abstract are throAvn generally on the purchasers ; for 
 
 then, although the expenses can lie liut once saved to the 
 
 estate, each purchaser may think that he will have to 
 
 bear them, and may be supposed to rechice his biddings 
 
 accordingly. 
 
 Conditions restrictive of a purchaser's right to a market- As to title, 
 able title, or the ordinary evidences of title, should be used be adapted to 
 only so far as may be requisite from the state of the title (h). tj^^*^" ^^ 
 Where, on a sale by trustees, it was stipulated that the 
 purchaser should accept a seventeen years' title as to part 
 of the property, and the condition did not specify that the 
 portion so restricted in title was only of small extent as 
 
 («) Falhifr v. EquitahJe lii'i: Sonj. (b) Suprd, p. 73 ; see, howevev, 
 
 4 Drew. 352. BoreJlx. Dann, 2 Ha. 44:\ 4'..'!.
 
 174 
 
 PARTICULARS AND CONDITIONS. 
 
 Chap. IV. 
 Sect. 5. 
 
 Power to sell 
 under special 
 conditions : 
 its effect. 
 
 As to declara- 
 tion that 
 improper con- 
 ditions, &c., 
 shall not 
 affect piir- 
 chaser. 
 
 compared with the whole, and not essential to the enjoyment 
 of the property, it was considered doubtful whether such 
 sale would be binding- on the cestui que trust {<■). 
 
 Where a deed dated in 1819 which formed the root of 
 title, had been mislaid, and the vendors who were trustees 
 for sale stipulated that the title sliould connnence with a 
 deed dated in 1858, and that no earlier title should be 
 called for except at the purchaser's expense and without 
 stating, as was the fact, that the title, as commencing in 
 1819, was recited in the deed of 1858, the condition was 
 held to be depreciatory, and, at the instance of a cestui que 
 trust who had only a small interest, the completion of the 
 sale was restrained (<t). The trustees ought to have com- 
 menced their title with the deed of 1819, and to have 
 stipulated for the verification of the abstract by means of 
 a copy of the deed ; or l)y making the recitals in the deed 
 of 1858 evidence. 
 
 Powers of, and trusts for, sale, at the present day, usually 
 authorize a sale "under special conditions as to title, 
 evidences of title, expenses, or otherwise." Such an authority 
 may reasonably be supposed to give to a fiduciary vendor, 
 somewhat wider limits than he would otherwise enjoy, and 
 would probably turn the scale in a doubtful case ; but it is 
 hard to say what is its precise efiect. It certainly would 
 not authorize capricious or obviously unnecessary conditions, 
 and necessary or provident conditions may and should be 
 used vlthout an express authority; and, looking to the 
 present state of practice, it must be a very gross case in 
 which a willing purchaser could be advised to insist upon the 
 use of depreciating conditions as an objection to the title : 
 it has, however, become usual to insert in such trusts and 
 powers a declaration, that the use of unnecessary or improper 
 conditions shall not affect the sale ; but even such a declara- 
 tion does not relieve a fiduciary vendor from liability to 
 his beneficiaries. 
 
 I 
 
 {c) Rede v. Oakes, 10 Jur. N. S. 
 1246. 
 
 ((Z) Dance v. GohUnr/Jtam, L. R. 8 
 Ch. Ap. 902.
 
 PARTICULARS AND CONDITIONS. 175 
 
 We may here remark that the circumstances of an estate Chap. IV. 
 
 ... Sect. 5. 
 
 beino- sold under conditions restrictive of the title, does not 
 
 necessarily protect a purchaser from being aftccted with conditions do 
 implied notice of matters, which he would have discovered '^ot necessarily 
 
 J- ' protect a pur- 
 
 by the ordinary investigation which follows an open con- chaser from 
 
 notice of what 
 tract ((') might be 
 
 learnt by in- 
 quiry. 
 
 Upon a sale of an estate laid out as l:)uilding land, it condition as 
 may often be desirable to reserve power for the vendor to to modifying 
 
 •^ -■- sale plan on 
 
 modify the arrangements indicated by the sale plan, for sale of build- 
 the laying out of the land, and tlie formation of roads 
 and otl^'r accommodation works, in case any of the lots 
 remain unsold. 
 
 The condition as to compensation for misdescription by Condition as 
 
 the vendor, cannot, it appears, be enforced upon a sale l)y tions useless 
 
 trustees, &c. (/) : although the use of the condition may *» trustees, 
 not in itself be a breach of trust (;/). 
 
 In a modern case, the Court decreed specific pei'formance Specific 
 of a contract for sale by trustees, in which it was provided under special 
 that their receipts should be sufficient discharges for the '''^"'"*^i""^- 
 purchase-money, and that the purchaser should not require 
 the concurrence of the cestiuis que trust, — thus supplying the 
 omission of the ordinary receipt clause in the trust instru- 
 ment (A). 
 
 Fiduciary vendors are justified in laying the title and Costs of 
 conditions of sale before counsel ; and the costs of so doing cx.nusel 
 by assignees in l)ankruptcy have been allowed as against 
 an incumbrancer who had petitioned for the sale, but whose 
 demand the proceeds of sale were insufficient to satisfy (/) ; 
 and upon a sale by the Court of Chancery, the title is 
 perused, and the conditions of sale are settled, by one of the 
 
 (e) Pcto V, IlaMnioiuI, 30 Beav. (A) Wilki/ison v. ILulIc//, 15 Beav. 
 
 495 ; Morhind v. Coolc, L. E. 1 Eq. 183 ; and see Groom v. Booth, 1 Dre. 
 
 252, and cases cited, ib. 25G. .^i 18. 
 
 (/) White V. Caddon, 8 CI. & F. (/) A'.c j)«r/f ic(m, 3 M. D. &De G, 
 
 766. 173. 
 
 [g) See Ilobson v. Bell, 2 Beav. 17. 
 
 allowed.
 
 170 
 
 PARTICULARS AND CONDITIONS. 
 
 C'bap. IV. conveyancing counsel of tlie Comi, in all but very excep- 
 
 Sect. 5. , . / ' 
 
 tional cases. 
 
 Power of 
 trustees under 
 V. & P. Act, 
 
 1874. 
 
 Concluding 
 remarks on 
 special con- 
 ditions. 
 
 By the Vendor and Purchaser Act, 1S74, trustees who 
 are \'endors may sell without excluding the operation of 
 the rules which ai'c prescribed by the Act for the future 
 regulation of the obligations and rights of vendor and 
 purchaser in the completion of contracts for the sale of 
 land (/■) ; but they might, it is conceived, have done so, 
 even land without express enactment. 
 
 Lastly, it may V)e remarked, that those conditions which 
 to an unprofessional eye appear the simplest, are often the 
 most dangerous; and those which appear difficult and 
 complex to the unlearned purchaser may not unfrequently 
 produce an impression favourable to the title upon tlie 
 mind of liis legal ad^'iser. The conveyancer who, upon 
 the purchase of a large estate, peruses a series of special 
 stipulations, which have evidently been framed with refer- 
 ence to points which might be made matters of serious 
 annoyance by a litigious, but are of little practical impor- 
 tance to the willing, purchaser, is naturally disposed to 
 believe that no real difficulties exist Mdiere minor objections 
 have been so carefully anticipated : and on the other hand, 
 nothing is more connnon than to see conditions whose 
 concise simplicity disarms the suspicion of the unprofes- 
 sional readei', but whose sweeping clauses reduce counsel 
 to the dilemma of either advising a client to complete 
 under seiious uncertainty whether he will acquire even a 
 tolerably safe holding title, or of involving him in inquiries, 
 which are almost sure to be heavily expensive, and may 
 probably prove wholly unsatisfactory. The writer may 
 also be allowed to add, as the result of a somewhat wide 
 experience, that, in his opinion, the number of seriously 
 defective and dangerous titles which at the present day 
 are brought into market and passed off upon purchasers 
 \nider the cover of special conditions of sale, is much larger 
 than is commonly supposed. 
 
 a-) 37 Sr. fl8 A"ict. c. 7^, sect. ?,.
 
 177 
 
 CHAPTER V. Chapter V. 
 
 AS TO THE SALE AND MATTERS CONNECTED THEREWITH. 
 
 1. Auction, ivhat it is. 
 
 2. Auctioneer, his liabilities, foiver, mid remuneration. 
 8. Agent, his liabilities, 'poiver, and remuneration. 
 
 4. Tlie deposit. 
 
 5. As to imjfings ayid reserved^ biddings on a sale by 
 auction. 
 
 (1). An auction, in the widest sense of the term, is any Section 1. 
 
 mode of sale, however conducted, in which the vendor Auction ; 
 
 conies under an express or implied obligation to part with 
 
 the property to the highest bidder : a general direction to Direction to 
 
 . . sell by. 
 
 sell by auction, would, however, it is conceived, only autho- 
 rize a sale by auction in the usual mode. 
 
 (2.) As to the Auctioneer, &C. Section 2. 
 
 An auctioneer selling without sufficient authority (a), or -^^ *° *^^ 
 
 ^ _ _ _ . . Aiictioneer, 
 
 not disclosing the name of his principal, is liable to the &c. 
 purchaser for his costs, and interest on his purchase-money Auctioneer, 
 
 ^ J. ^ when per- 
 
 if lying idle (6) : and it has been held that if he sell, with- soually liable, 
 out at the time of sale disclosing the name of his principal, 
 he is personally liable in damages for nonperformance of 
 the contract (c). 
 
 The fact of his being, unknown to the purchaser, the May be him- 
 
 (a) As to acts by the vendor bind- Driver, 2 Y. & J. 3.55. 
 ing him to the sale, see Pike v. Wil- (c) Hanson v. Roherdenn, Pea. N. 
 
 son, 1 Jur. N. S. 59. P. C. 120 ; Prankhjn v. Lamond, 4 
 
 (6) Brett v. Ellis, and Jones v. C. B. 037 ; £.k jiurte JIartop. 12 Ves. 
 
 Dylce, Sug. App. 813. See Gahij v. 352 ; Sng. 42. 
 
 VOL. I. N
 
 178 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 2. 
 
 self the 
 vendor. 
 
 Cannot vary 
 terms after 
 sale. 
 
 owner of the property, seems to form no objection to the 
 validity of the contract {d). 
 
 The auctioneer cannot, without express authority, delegate 
 the sale to another (e) ; nor can he, after the sale, vary the 
 terms of the contract (/) : whether without express authority 
 he can bind the vendor by special conditions of sale, seems 
 to be doubtful {g). Where he professes to sell as " without 
 reserve," it has been held at Law, that if he accepts a bid 
 from the vendor, he commits a breach of contract with the 
 purchaser, for which he may be made liable in damages (Ji). 
 
 Eights and 
 liabilities of 
 in respect to 
 deposit and 
 purchase- 
 money. 
 
 Unless especially authorized, he has no power to receive 
 more than the deposit (i) : and if, as respects the deposit or 
 any other part of the purchase-money which he is authorized 
 to receive, he allow the purchaser to retain it on his personal 
 or any other security, he does so at his 0"\vn risk (/) ; nor 
 where he is authorized to receive payment, is he justified in 
 taking a bill of exchange instead of cash (/) ; but if he 
 accepts the purchaser's I O U for the money, even though 
 he does so with the vendor's consent, it seems that he may 
 sue upon it in his own name ('/7i). On a sale of goods he 
 may recover the entire price from the purchaser {n). 
 
 Holds the 
 deposit as a 
 
 stakeholder. 
 
 Until the purchase is completed he is a stakeholder of the 
 deposit, and should not part with it except by consent of 
 both vendor and purchaser (o) ; if both claim it, he may file 
 
 {d) Flint V. Woodin, 9 Ha. 618. 
 
 (e) Cochran v. Irlam, 2 Mau. & S. 
 301 ; Catlin v. Bell, 4 Camp. 183 ; 
 Schmaling v. Thomlinson, 6 Taunt. 
 147 ; see 9 Ves. 251 ; Henderson v. 
 Barnewall, 1 Y & J. 387 ; Sug. 44. 
 
 (/) See Blackhurn v. Schohs, 2 
 Camp. 343. 
 
 (g) Pike V. Wilson, 1 Jur. N. S. .59. 
 
 {h) Warlow v. Harrison, 6 .Tur. 
 N. S. 66, Exch. Ch. ; and compare 
 Mainpnce v. Westlei/, 11 Jur. N. S. 
 975. 
 
 (i) S7jkes V. Giles, 5 M. & W. 645. 
 
 (i^ Williams v. MUlinyton, 1 H. Bl. 
 
 81, 85 ; Wiltshire v. Sims, 1 Camp. 
 258 ; Sug. 48. 
 
 (I) Sykes V. Giles, 5 M. & W. 645 ; 
 WilliardS v. Evans, L. E. 1 Q. B. 352. 
 
 ()« ) Cleave v. Moors, 3 Jur. N. S . 
 48. 
 
 (n) Williams v. Millington, 1 H. 
 Bl. 81 ; Robinson v. Butter, 3 C. & E. 
 1195 ; 4 El. & B. 954. 
 
 (o) See Smith v. Jackson, 1 Madd. 
 620 ; Burrough v. Skinner, 5 Burr. 
 2639 ; and Wiggins v. Lord, 4 Beav. 
 30, where the deposit was received 
 by the vendor's solicitor ; but see 
 Edgell v. Day,!^. E. 1 C. P. 80, where
 
 MATTERS CONNECTED THEREWITH 179 
 
 a bill of interpleader {p) ; but, in so doing, he must not Chap. v. 
 claim to retain his commission out of it {q), nor must the U 
 
 amount held by him form a question in dispute (r) ; if, how- 
 ever, he be made a defendant to a bill for specific perfoiin- 
 ance, and the deposit be brought into Court, he will be 
 allowed to deduct his charges and expenses, subject to the 
 question as to who shall ultimately bear them («). If the 
 contract be rescinded by the purchaser on the ground of 
 fraudulent misrepresentations made by the vendor to the 
 auctioneer, and innocently communicated by the latter, the 
 fraud will be a good defence to an action by the vendor 
 against the auctioneer for the deposit or purchase-money {t). 
 If the estate be re-sold by the vendor, upon the alleged 
 default of the first purchaser, the auctioneer receiving the 
 deposits on both sales cannot in one suit get rid of the con- 
 flictmg claims of the vendor and two purchasers (u). In 
 such a case he should pay the money into Couii) under the 
 Trustee Relief Act, and would be allowed his necessary costs 
 of doing so. 
 
 At Law, the costs of an auctioneer who has paid the Whether 
 deposit into Court under an intei-pleader order («), have been out of, at Law. 
 allowed out of the deposit ; leaving the purchaser to his 
 remedy over against the vendor, although known to be 
 insolvent {y) : but in a modern case the Court refused the 
 interpleader order, unless the auctioneer gave security for 
 costs, and declined to allow him the costs of the applica- 
 tion (z). 
 
 the vendor's solicitor receiving the G. 141 ; and see Watts v. Hammond, 
 
 deposit was held not to be a stake- 3 Eq. R. 641. 
 
 holder. (s) Anmslty v Afuf/f/ridr/r, 1 Madd. 
 
 (jA Fairhrnthcr v. Frattait, Dan. 593 ; Yafei v. Farehrothcr, 4 Madd. 
 
 64 ; Dan. Ch. Pr. 4th Ed. p. 148. 239. 
 
 If an action has been brought to {t) See Murray v. Mann, 2 Exch. 
 
 recover the deposit, he may, it is con- 538 ; Stevens v. Legli, 2 C. L. R. 251. 
 
 ceived, take out an interpleader sum- («<) Iloggart v. Cutis, CV.&Ph. 197. 
 
 mons under 1 & 2 Will. 4, c. 58 ; {x) Under the 1 & 2 Will. 4, c. 58. 
 
 See 23 & 24 Vict. c. 126. (y) Pitchers v. Edney, 4 Bing. N. 
 
 (5) Mitchell v. Hayne, 2 Sim, & S. C. 721 ; and see Reeves v. Barraud" 
 
 63 ; and see Biynold v. Audland, 11 7 Sc. 281. 
 
 Sim. 28. (:) Dcllcr v. Prickett, 15 Q. B- 
 
 (r) Diploch v. Hammond, 2 Sm. & 1081. 
 
 N 2
 
 180 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 2. 
 
 pletion. 
 
 After the purchase is completed, or before, with the con- 
 sent of the purchaser, the auctioneer may, except in very 
 Eights of &c., special cases (a), safely pay the deposit to the vendor, 
 after com- although in embarrassed circumstances (6) : if the purchase 
 go off, or the vendor fail to make a title (c), the purchaser 
 may, and perhaps without giving notice of default (d), 
 recover the deposit from the auctioneer in an action at 
 Law (t) ; but he cannot, nor can the vendor, claim interest, 
 although the auctioneer may actually have made a profit 
 upon it, and been required by one only of the parties to 
 invest it (/). 
 
 Commission. The amount of his remuneration, unless (as it should be) 
 
 settled by agreement ((/), seems to depend upon custom (Jt) : 
 and even in the trade there appears to be no settled rate of 
 commission. In a late case (i) the usual charge was by 
 several auctioneers stated to be £5 per cent, up to the first 
 £500 of purchase-money ; by others, up to the first £1000 ; 
 and by most of the witnesses, up to the first £2000, with 
 £2 10s. per cent, on the remainder. An agreement that the 
 auctioneer shall receive nothing if there be no sale, will not 
 deprive him of his commission, if, after he has taken the 
 usual steps preparatory to a sale, the estate be sold by the 
 owTier by private contract (/.') : but where an agent was to 
 receive £100 for commission, "one-third down and the re- 
 maining two-thirds when the abstract of conveyance is 
 drawn out," and an abstract of title was delivered, but the 
 contract then went off, he was not allowed to recover from 
 his principal the two-thirds which remained unpaid (I). 
 
 (a) See Crosshcy v. Mills, 1 Cro. 
 M. & K 298, 302. 
 
 (J)) White V. Bartlett, 9 Bing. 378. 
 
 (c) Gray v. Gutteridge, 1 Man. & R. 
 614 ; Edwards v. Hodding, 5 Tauat- 
 815. 
 
 {d) Gray v. Gutteridge, idii su^k ; 
 Duncan v. Cafe, 2 IVL & W. 244. 
 
 (e) Bvrrough v. Skinner, 5 Burr. 
 2639 ; Malcrley v. Robins, 5 Taunt. 
 625 ; Johnson v. Roberts, 24 L. T. 
 254. 
 
 (/) Ilarington v. Hoggart, 1 B. & 
 Ad. 577 ; Lord Salisbury v. Wilkin- 
 son, cited 8 Ves. 48 ; 3 Bro. C. C. 44 ; 
 Browne v. Southousc, ibid. 107 ; and 
 see Gaby v. Driver, 2 Y. & J. 549. 
 
 (g) Re Page, 32 Beav, 487. 
 
 (/() See Maltbyw. Christie, 1 Esq. 340. 
 
 (i) Re Page, ubi supra. 
 
 (h) Rainy v, Vernon, 9 Car. & P. 
 559 ; Driver v. Chohnondeley, ibid., n. 
 
 (0 Alder v. Boyle, 4 C. B. 635.
 
 MATTERS CONNECTED THEREWITH. 181 
 
 Where a solicitor employed an auctioneer to sell his client's Chap. v. 
 
 . . Sect 2 
 property who retained out of the deposit, for his commission, Lr__ 
 
 more than would be allowed under the Bankruptcy scale (rii), 
 
 the solicitor was nevertheless allowed the whole charge on 
 
 the taxation of his bill (n). 
 
 And the auctioneer's (or agent's) claim to remuneration ^^f'"*^*?', 
 
 \ o ^ ^ defeateil by 
 
 will be defeated by any negligence on his part, as to the negligence. 
 
 mode of conducting the sale or otherwise, whereby the sale is 
 
 defeated (a) : and if he negligently misdescribe the property, 
 
 he will be hable to repay to the vendor the amount claimable 
 
 by the purchaser in respect of such misdescription (2^) ; and 
 
 he may be liable in nominal damages for breach of duty, 
 
 though no actual loss may have been sustained (q). An Trustee &c., 
 
 o -^ _ cannot claim 
 
 executor or trustee (r) or mortgagee with power of sale (s), commission. 
 acting as auctioneer in the sale of the trust or mortgaged 
 property, cannot charge commission, unless it can be collected 
 from the trust instrument or mortgage that such was the in- 
 tention (t). 
 
 As a 2-eneral rule, any loss occasioned by his insolvency or Insolvent— 
 
 *= ' -^ 1 / N J l«ss falls on 
 
 tnala fides falls on the vendor as his employer (ii) ; and a vendor, 
 mortgagee, adopting his mortgagor's contract for sale, adopts 
 also this liability, as between himself and the purchaser {x) : 
 but a fiduciary vendor will not be personally responsible to 
 his cestuis que trust for such loss, if he have acted prudently 
 and under proper advice in the matter (7/). 
 
 By the appointment of an auctioneer the vendor impliedly J;^,^j}f p"*.^^"^ 
 authorizes the auctioneer or his clerk (z) to bind him by their within the 
 
 {m) See Bankruptcy General Orders, Jo. 148. 
 
 19 May, 1855, Sched. (tt) See and consider Sanderson v. 
 
 ^n) Re Pmje, uhi suprd,. Walker, 13 Ves. 601, 602 ; Fenton v, 
 
 (0) Denew v, DavercU, 3 Camp. Broiune,l4Yes. Hi, 150 ; A uncslei/ v. 
 
 451 ; Jones v. Nanney, 13 Pri. 76. MiKj'jridge, 1 Madd. 593, 596 ; Smith 
 
 {p) Parker v. Farehrother, 1 C. L. v. /acA'soji, 1 Madd. 618,020; Sug. 52. 
 
 R 323. (5c) Roive v. May, 18 Beav. 613. 
 
 (/?) Ilihhcrt V. Bayley, 2 Fost. & Fin. (y) Edmonds v. Pcake, 7 Beav. 239. 
 
 48. (z) Bird v. Boulter, 1 Nev. & M. 
 
 {r) Kirhman v. Booth, 11 Beav.273. 313 ; Bartktt v. Puriiell, 4 Ad. & E. 
 
 (s) Maihison v. Clarke, 3 Dre. 3. 792 ; Henderson v. Barncwall, 1 Y. & 
 
 (0 Dowjlas V. Archbutt, 2 De G. & -T 387.
 
 182 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 2. 
 
 Statute of 
 Frauds. 
 
 Revocation 
 of his autlio- 
 rity. 
 
 signatures as his agent within the Statute of Frauds (a) ; a 
 similar authority is given by the bidder, by the act of 
 bidding (6), although it be by an agent (c). Before the fall 
 of the hammer, either party may revoke the authority (d) ; 
 but not after the property has been knocked down, even 
 though no contract may have been signed (e). Whether an 
 action would lie for such revocation is doubtful 
 
 Selling by Where property was offered for sale by auction under order 
 
 tract at the of the Oouxt, and was bought in, but before the auctioneer 
 
 reserved price, -^^.d left the room a person, to whom he had communicated 
 
 the reserved price, signed a contract for the purchase at that 
 
 price, it was held that the auctioneer had not exceeded his 
 
 authority, and the contract was enforced (/). 
 
 Kevocation 
 of his autho- 
 rity. 
 
 Where the auctioneer's authority has been revoked by 
 the vendor before the sale, such revocation is valid even 
 as against parties purchasing in ignorance of it ([/) ; but 
 not where the auctioneer has a wi'itten authority, and the 
 bids are made upon the faith of it. 
 
 His right to j^ seems to be doubtful whether the auctioneer can sue a 
 
 sue party . r, i i 
 
 for whom he party for wliom he personally signs as agent {k) ; but he can 
 a^nt?* maintain the action when the entry has been made by his 
 
 clerk on behalf of the defendant (i). 
 
 Section 3. 
 
 As to agents. 
 Agent, 
 
 (3). As to agents. 
 An agent, either for pm'chase (k) or sale (I) of an estate 
 
 (a) Emmerson v. ItceUs, 2 Taunt. 
 38 ; Kemvwthy v. Schofidd, 2 B. & C. 
 945 ; Kemeys v. Proctor, 1 Jac. & W. 
 350. 
 
 {h) See Sug. 48. 
 
 (c) Emnierson v, Heelis, 2 Tatmt. 
 38 ; White v. Proctor, 4 Taunt. 207. 
 
 (d) See Blagden v. Bradhear, 12 
 Ves. 466 ; Mason v. Armitage, 13 Ves. 
 25 ; Matins v. Freeman, 2 Ke. 25 ; 
 Taplin V. Florence, 10 C. B, 744 ; 
 infra, p. 188. 
 
 (e) Day v. WeUs, 7 Jur. N. S. 1004 ; 
 30 Beav. 220. 
 
 (/) Else V. Barnard, 28 Beav. 230. 
 
 (ff) Man$er v. Back, 6 Ha. 443. 
 
 (h) Farehrother v. Simmons, 5 B. & 
 Aid. 333 ; Wright v. Dannah, 2 Camp. 
 203. 
 
 {!) Bird V. Boulter, 1 N. & M. 313 ; 
 see Graham v. Musson, 5 Bing. N. C. 
 603, 608. 
 
 (Tc) Sug. 145. 
 
 (I) Sug. 146.
 
 MATTERS CONNECTED THEREWITH. 183 
 
 may be appointed by word of mouth (iii) ; but a verbal ap- Chap. v. 
 IDointment, of course, is generally inexpedient : neither of 
 
 the contracting parties can, it appears, act as agent for the pJ^^eX 
 other (n) ; nor can the seller's agent act as agent for the 
 buyer, unless expressly authorized by the latter (o). 
 
 Though not perhaps absolutely necessary (/>), it is very By a corpo- 
 desiral)le that the agent of a railway company or other cor- 
 poration should be appointed under the corporate seal (q). 
 The company may, by their conduct, adopt and ratify the act 
 of an unauthorized agent ; but in dealing with a public com- 
 pany, strict proof of the agent's authority should be required. 
 
 Where the agent has a written authority, parties dealing Private in- 
 with him upon the faith of it are unaffected by private 
 restrictions imposed up^n him by his principal, but of which 
 they have no notice (r). Nor can a contract, when duly 
 entered into by an agent, be avoided by his neglect to 
 communicate it to his principal pursuant to the latter's 
 instructions (s). 
 
 Wherever a general authority is given by a principal to General 
 
 ... 1 n 1 aiitboritv 
 
 an agent, this implies and includes a right to do all subor- what it 
 dinate acts incident to and necessary for the execution of 
 that authority, — and if notice is not given to the person 
 with whom the agent deals that the principal has limited 
 the authority, the principal is bound (i^). But an estate 
 agent instructed as to price has no implied authority to sign 
 an open contract on behalf of his principal (u). 
 
 {m) See 9 Ves.250 ; Dya%\. Cruise, c. 24 sect. 11. 
 
 2 J. & L. 460. (5) Corp. of Lmllow v. Charlton, 
 
 (n) Wrvjiit V. Dannak, 2 Camp, 6 M. & W. 815 ; Cope v. Thames 
 
 203 ; Farcbrothcr v. Si7nmuns, 5 B. Haven Co., 3 Exch. 841 ; 6 Kail. Ca. 
 
 & Aid. 333. 83 ; DiggJe v. London and Blackwall 
 
 (0) Durrell v. Emns, 7 Jur. N. S. Ji. Co., 5 Exch. 412 ; Gooday v. Col- 
 
 535_ Chester R. Co., 17 Beav. 132. 
 
 {p) See Wilson v. West Hartlepool {r) Neeld v. Duke of Beaufort, 5 
 
 R. Co., 2 De 6. Jo. & S. ; and L. J. Jur. 1123 ; see as to restrictions on an 
 
 Turner's remarks on sec. 97 of 8 & 9 auctioneer, Manser v. Back, 6 Ha. 443. 
 
 Vict 0. 16, ib. 496 ; and see 5 H. L. (s) Wright v. Bigg, 15 Beav. 592. 
 
 Ca. 363, 364, and Sug. 77. See as to (t) Ter M. K. in Cullen v. Gardner, 
 
 contracts by trustees of a charity who 21 Beav. 512. 
 
 have been incorporated, 35 & 36 Vict. («) Hanicr v Sharp, L. R. 19 Eq. 108, 
 
 includes.
 
 184 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 3. 
 
 Apparent 
 agent. 
 
 Also a person may so deal with third parties, as to warrant 
 them in the belief that another is his agent ; and he will, at 
 least in Equity, be bound by any unauthorized agreement of 
 the agent, which he (the principal) has given them reason to 
 consider authorized (v). 
 
 For purchaser, 
 how far he 
 can bind his 
 principal. 
 
 An agent, employed to bid for an estate, and not limited 
 as to price, can bind his principal to any amount ; if, being 
 limited, he exceed the limit, and his want of authority be 
 unknown to the other party, he himself is bound (x), and 
 his principal is said to be free (y) ; upon the general ground 
 that he cannot bind his principal beyond the extent of his 
 authority (z) : but the production of written instructions 
 authorizing him to give a specified price, does not preclude 
 parol evidence of his having had a general discretionary 
 power (a). 
 
 Agency, if 
 denied, may 
 be established. 
 
 Contract by 
 agent assum- 
 ing to be 
 
 As between the vendor and an alleged agent for purchase, 
 but whose authority is denied, the agent has all the rights 
 and liabilities of a principal : the fact of agency, if denied, 
 may, of course, if practicable, be established, by the agent 
 against the piincipal, the principal against the agent (6), 
 or by the vendor or purchaser against the other prin- 
 cipal (c). 
 
 There is not, as a general rule, any objection to a con- 
 tract for purchase entered into in the name of an agent, 
 
 {v) See Smith v. East India Co., 
 16 Sim. 76. 
 
 {x) See Jones v. Downman, 4 Q. B. 
 235, n. 
 
 {tj) Hicl-s V. Hankin, 4 Esp. 114 ; 
 Eaxt India Co. v. Ilensley, 1 Esp. 112 ; 
 Amb. 498 ; 10 Ves. 400 ; Sug. 47. 
 Qumre, however, whether the rule 
 shoukl not be, that where the agent 
 exceeds the limit, the principal shall 
 be bound to the extent of such limit ; 
 provided, in the case of an auction, 
 that it exceed the amount of the last 
 adverse bidding. 
 
 (r) See Olding v. Smith, 16 Jur. 
 
 497, Q. B. 
 
 (a) Hirls v. IlanMin, 4 Esp. ; see 
 p. 116 
 
 (b) Taylor v. Salmon, 4 Myl. & C- 
 134 ; Bale v. Hamilton, 2 Ph. 266 ; 
 Lees V. Nuttall, 1 Russ. & M. 53, affd. 
 2 Myl. & K. 819 ; and see Austin v. 
 Chambers, 6 CI. & F. 1. 
 
 ((•) See Marston v. Roe, 8 Ad. & E. 
 14 ; infra, s. 4 ; and Field v. Boland, 
 1 Dru. & Wal. 37 ; Wilson v. Hart, 7 
 Taunt. 295 ; vide infra, Ch. XVII., as 
 to when an action must be brought 
 in the agent's name.
 
 MATTERS CONNECTED THEREWITH. 185 
 
 upon the ground of his having professed to deal on his own Chap. v. 
 account ((/) ; but in the converse case of a purchaser pro 
 
 fessing to contract as agent for another, Equity would enforced, 
 refuse specific performance against the vendor, if it appeared By nominal 
 that the name of the assumed principal was used as an in- enfOTced. ^^ 
 ducement to a bargain, which would not otherwise have 
 been entered into (e). Of course the real principal is liable, 
 although he may have assumed to contract as an agent ; — 
 no other principal being named (/). 
 
 Where on a sale of goods by auction, a bidder in reply to 
 the auctioneer gave his own name as the purchaser, but did 
 not disclose that he was acting merely as agent, or sign any 
 written contract, and there was evidence that the vendor 
 knew he was only an agent, and the goods were delivered to 
 the principal, the Court of Exchequer were equally divided 
 in opinion, as to whether the agent was liable to the vendor 
 in an action for goods sold and delivered ((/). 
 
 An acrreement entered into by an attorney or agent, Agreements 
 
 . . 1 T 1 -T ^^ agent, how 
 
 should, in order to avoid any question as to personal liability, to be signed. 
 
 be made and signed, by him, as attorney or agent, in the name 
 
 of the principal (h) ; in fact, ^_a_£ii'son by deed covenant Agent when 
 
 for himself and his heirs for the acts of another, he is liable. 
 
 personally liable, although described as agent (i) ; it has, 
 
 however, been held, that if a person enter into a contract 
 
 in writing, not under seal, describing himself as agent and 
 
 naming his principal, he is not personally liable, unless he 
 
 had no authority to make the contract, or, in making it, 
 
 exceeded his authority (/.;) ; but slight expressions, indicative 
 
 of an intention to bind the agent, have been held to take a 
 
 (d) Sug. 48 : Nelthorpe v. Holgate, (/t) See Gray v. Gutteridye, 1 Man, 
 
 1 Coll. 203 ; Trent v. Hunt, 9 E.\ch. & R 614, 618 ; Humble v. Hunter, 
 
 14 ; Saxon v. Blake, 29 Beav. 438. 12 Q. B. 310 ; Marjce v. Atkinson, 2 
 
 (c) Phillips V. Duke of Bucks, 1 M. &W. 440; cfivffc ;«/»•</, Ch. XVII. ; 
 
 Vem. 227 ; infra, Chap. XVIII. s. 9. Sug. 57. 
 
 (/) Carr v. Jackson, 21 L. J. Exch. (i) See Applcton v. Blnks, 5 East, 
 
 1.37. 148 ; Sug. 57. 
 
 ig) Williamson \. BcLrton, 2 Yost, k {k) Downman v. /ones (in error), 
 
 Fin. 544 ; 8 Jur. N. S. 341. 9 Jur. 554, Ex. Ch.
 
 186 THE SALE AND 
 
 Chap. V. case out of the general rale, wliei'e the signature is in the 
 ' name of the ao-ent — althoiish so described — and there is no 
 
 ratification by the principal (I) : even where a person, with- 
 out authority, signs an instrument in the name of and as 
 agent for another, he cannot be treated as a party to such 
 instrument, and be sued upon it, unless he be showTi to have 
 been really the principal ; although he may probably be 
 liable in an action for damages for the misrepresentation (771) : 
 where the agent of the vendor, at the purchaser's request, 
 signed the agreement in his (the agent's) o^vn name, this was 
 held not to be a sufficient agreement in wiiting under the 
 Statute of Frauds, the vendor failing to prove that his agent 
 signed as agent for the purchaser (n) ; so, where the seller's 
 agent, in the presence of both the buyer and the seller, wi-ote 
 out a sale note, containing the names of the parties, and, at 
 the buyer's request, altered the date so as to give him longer 
 credit, it was held that the buyer was not bound (a). 
 
 Powers of After the contract is entered into, an agent for sale, if 
 
 agent. .... . . . , 
 
 and so long as his principal is undisclosed, may, within the 
 limits of his original authority, vary the terms of payment (23) : 
 he camiot, without special authority, receive the purchase- 
 money (q) ; if authorized to receive it, a direction fi-om his 
 principal to pay it to a third party camiot, if given for 
 valuable considei-ation (r), be revoked without the consent of 
 such third party. He is not bound to pay over to his 
 principal money received under a contiuct which has been 
 rescinded on the ground of fraud (s). 
 
 (/) Tanner v. Christian, 4 El. & B. ScJiolcs, 2 Camp. 343. 
 96 ; and distinguished Spittle v. Lavcn- (q) Mijnn v. Joliffc, 1 Moo. & R. 
 
 der, 2 Bro. & B. 452, where the agree- 826 ; Pole v. Ltasl; 28 Beav. 562 ; 
 
 ment was ratified by the principal. and see further, infra, Ch. XIII., as 
 
 See too Rcid v. Draper. 7 Jm-. N . S. to payment to agents. 
 1125, a contract betAveen brokers. (r) Metcalf v. Clough, 2 Man. & R. 
 
 im) Jenkins v. Hutchinson, 13 Q. 178; Yates v. Hoppe, 9 C. B. 541 ; 
 
 B. 744 ; Lewis v. Nicholson, 16 Jur. see in Equity, Rodick v. Gandcll, 12 
 
 1041. Beav. 325 ; 1 De G. M. & G. 763 ; 
 
 (n.) Graham v. Musson, 5 Bing. L'Estrange v. VEstrange, 13 Beav. 
 
 N. C. 603. 281 J Riccard v. Prichard, 1 K. & J. 
 
 (o) DurreU v. Ecans, 7 Jur. N. S. 277. 
 N. 585. (s) Supra, p. 179. 
 
 (p) Sug. 46, 47 ; Blackburn v.
 
 MATTERS CONNECTED THEREWITH. 187 
 
 It was in a modern case decided in Scotland, that an agent Chap. v. 
 contracting for a principal in insolvent circumstances, and ^^ ' ' 
 
 failing to communicate the fact to the vendor, was personally- 
 responsible for his purchase-money : but on an appeal to 
 the Lords the respondent's counsel deemed it useless to ai-gue 
 the point (t). 
 
 If an agent for sale is to receive for commission a per- Commission, 
 centage on the sum obtained, he cannot claim it in respect 
 of any part of the pm-chase-money which remains unpaid (u) : 
 unless such nonpayment be occasioned by the wilful act or 
 default of the vendor (x) : if several agents are employed, 
 and one find, and another conclude, the bargain with a 
 purchaser, each may claim a commission ; but not the usual 
 commission of 21. j)er cent. (y). 
 
 In a modem case (z), where an agent was employed to find Whether 
 
 , . , . . I'll 11 entitled to 
 
 a purchaser at a certain pnce, on which he was to have a remuneration 
 specified pcr-centage if a sale were effected, and the agent ^^jliere sale not 
 found a purchaser, but the vendor refused to complete the 
 sale, it was held that the agent could sue on a quantum 
 tneruit for the work and labour done ; and that in such a case 
 the law implies a promise on the part of the vendor to 
 remunerate the agent, even if the contract should not be 
 completed: but two of the judges carefuUy disclaimed any 
 intention of laying it down as a general rule, that when an 
 agent, is employed to sell, and his authority is revoked, he 
 may resort to the common counts for remuneration for his 
 sei^ices : the understanding being that he is to find a pur- 
 chaser if he is to be entitled to his commission ; and if he 
 does not do so before his authority is revoked he is to receive 
 nothing («). 
 
 In order to entitle himself to commission the agent must Not entitled 
 
 to commission 
 
 (/) Dudgeon v. Thompson, 1 JMacq. (s) Prickctt v. Badger, 3 Jiur. N. S. 
 
 H. L. C. 714. 66 ; 1 Com. Ben. N. S. 296. 
 
 (w) Bull V. Price, 7 Bing. 327. (a) Per WilUama and Cmwder, JJ., 
 
 (x) S. C, Bee p. 241 ; and Cannon 3 Jur. N. S. 67 ; see and compare 
 
 V. Kelbj, 1 Hay. & J. 655 ; and Alder Blanche v. Cdburn, 8 Bing. 14 ; De 
 
 V. Boyle, 4 C!. B. 635. Bernardj v Harding, 8 ExcL 822. 
 
 {y) Murray v.Curric, 7 Car. & P. 684,
 
 188 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 3. 
 
 unles.s he acts 
 within his 
 authority. 
 
 strictly observe the letter of his authority. Thus, where A., 
 the owner of certain pottery works, and B. the owner of a 
 patented invention for earthenware, entered into an arrange- 
 ment that if A. sold the works with the benefit of the patent 
 annexed, he should be entitled to a specified remuneration, it 
 was held that A. could not claim anything for ettecting a 
 sale of the works without the patent (6). 
 
 Authority 
 may be re- 
 voked at any 
 time before 
 agreement 
 concluded ; 
 
 or unautho- 
 i-ized act 
 adopted : 
 
 onlyby 
 nominal 
 principal. 
 
 The authority of an agent, either for sale or purchase, 
 may be revoked at any time before he has entered into a 
 binding agi'eement (c) ; and the revocation of his authority 
 will not entitle him to claim the specific amount of remu- 
 neration, which had been agreed to be paid to him on a sale 
 being effected : although it may entitle him at once to a 
 quantmn vieriiit for services actually rendered (d). If he 
 act without authority, his alleged princij^al, even although 
 he have had no previous communication with him, or were 
 ignorant of his name at the date of the contract, may adopt 
 his acts (e) : and mere acquiescence with knowledge of the 
 fact, but without any overt act of adoption, may raise a 
 presumption of assent, and make the contract binding on 
 the alleged principal (/) ; nor is it necessary that the 
 principal should have been competent to contract at the 
 date of the agreement ; for instance, an administrator 
 may adopt a contract entered into before the grant of 
 the letters of administration (g) ; but a contract entered 
 into by A., expressly as agent for B., cannot be adopted 
 by C. (h). 
 
 (b) Pellyv. Sidney, 5 Jur. N. S. 793. 
 
 (c) Farmer v. Robinson, 2 Camp. 
 339, n. ; Blagden v. Bradbcar, 12 Yes. 
 466 ; Mason v. Armitage, 13 Ves. 25 ; 
 Manser v. Back, 6 Ha. 443 ; Smart v. 
 Sandars, 3 C. B. 380 ; supra, p. 182. 
 
 ((Z) See Campanari v. Woodhurn, 
 3 C. L. K 140 ; 15 C. B. 400 ; Simp- 
 son V. Lamb, 4 W. E. 328. But see 
 and consider Pricl'ett v. Badijcr, 1 
 C. B. N. S. 296 ; 3 Jur. N. S. 66 ; and 
 vide supra, p. 187. 
 
 (c) Maclean V. Dunn, 4 Bing. 722 ; 
 
 Gosbdl V. Archer, 2 Ad. & E. 507 ; 
 and see De Bcil v. Thompson, 3 Beav. 
 469 ; London and Birmingham B. Co. 
 V. Winter. Cr. & Ph. 57 ; Wdson v. 
 Tummon, 6 Sc. N. R. 894 ; and 
 Blackwood v. Borrowes, 4 Dru. & W. 
 441, 472. 
 
 {f)Bi>jij V. Strong, 3 Sma. & G. 
 592 ; 4 Jur. N. S. 108, 983. 
 
 {(j) Foster v. Bates, 12 M. & W. 226. 
 
 (/(.) Wilson V. Tummon, 6 Man. & 
 C. 236; 6 Sc. N. 11. 894. 
 
 I
 
 MATTERS CONNECTED THEREWITH. 189 
 
 The clerk of an agent for sale has, it appears, no implied Chap. v. 
 authority to bind the j^rincipal (?'). ^^ ' ' 
 
 Clerk of agent 
 cannot bind 
 A land steward has no general authority to enter into principal. 
 
 contracts for leases for terms of years (/•). 
 
 Land steward. 
 
 Where one of several purchasers entered into a secret IJnder-band 
 arrangement with the vendors, that if a sale were effected agent. 
 at a stipulated price, he was to receive a bonus out of the 
 purchase-money, and he persuaded his co-purchasers that 
 the vendors would not consent to any reduction of the 
 price, it was, of course, held, that the transaction could not 
 stand (l). 
 
 A contract by a corporation must necessarily be made <^'ontracts by 
 '^ ^ _ *^ corporations, 
 
 either by wiiting under its common seal or by its officer or 
 
 other ao-ent authorized to make such contract, and the ao-ent 
 
 must make it in writing, if writing would be necessary were 
 
 it the contract of an individual. The Lands C. Act, 1845, 
 
 s. 97, and the C. Act, 1867, s. 37, contain with respect to 
 
 contracts provisions which may be regarded as paitially 
 
 declaiing rather than as alteiing the Law. 
 
 There can, of course, be no doubt that a company may May ratify 
 ratify under seal previous contract not under seal ; audit and adopt a 
 
 •^ ^ ' contract not 
 
 is settled that they may, by their own conduct, as e.g., by "ntkr seal. 
 an act of part performance, bind themselves to a contract, 
 which an unauthorized agent may have entered into on 
 their behalf (on) ; but an agreement by the promoters of the 
 company, prior to its incorporation, is not binding on the 
 company, until it has been either ratified or adopted by 
 them (n) ; and, after considerable conflict of authorities, it 
 seems to be now well settled, that if the agreement, into 
 
 (t) Coles V. Trccothick, 9 Ves. 234 ; (m) Wilson v. West Hartlepool R. 
 
 More V. Sutton, 3 Mer. 237 ; and see Co., 2 De G. Jo. & S. 475 ; 34 Beav. 
 
 Bird V. Boulter, 4 B. & Ad. 446 ; and 187. 
 
 Burnell v. Broken, 1 Jac. & W. 168. (n) Preston v. Liverpool R. Co. 5 
 
 {k) Colleen v.Gardner,2lBea.v.5iO. H. L. Ca. 605; Williams v. St. 
 
 (I) Beck V. Kautorowicz, 3 K. & Jo. George's Harbour Co., 24 Beav, 339 ; 
 
 230. 2 DcG. & Jo. 547.
 
 190 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 3. 
 
 which the promoters or directors of the company have 
 entered, is not warranted by the terms of their incorpora- 
 tion, the company is not bound (o). A contract by the 
 promoters for purchase, founded on the withdrawal of a 
 landowner's opposition to the bill, has been enforced against 
 the company ; and, as a general rule, wherever the company 
 have adopted, and had the benefit of a contract which is not 
 ultra vires, and which, if entered into between ordinaiy 
 individuals, would be valid, the contract may be enforced 
 against them (p). 
 
 We may here refer to the Companies Seals Act, 1864 {q) ; 
 under which a public company, formed under the Act of 
 1862, may have an official seal for use in foreign countries, 
 and may employ a local agent to affix the same to any deed, 
 contract, or other instrument to which the company is a 
 party in such foreign country. 
 
 Contracts by With reference to trading corporations, the result of the 
 
 trading cor- . , ^ 
 
 porations. cases seems to be that whenever the contract is made for 
 the purposes for which they were incorporated, it may be 
 enforced, though not under seal (r). 
 
 I 
 
 (o) HaivTces v. Eastern Counties R. 
 Co., 5 H. L. Co. 331 ; Bargate v. 
 Shortridge, 2 Macq. 420. 
 
 {p) Lowe V. London and N. W. R. 
 Co., 18 Q. B. 632 ; and see generally 
 as to railway companies being bound 
 by their adoption of contracts entered 
 into in anticipation of their powers to 
 purchase, or of their Acts of incorpo- 
 ration, and as to the validity of con- 
 tracts for purchase founded on the 
 withdrawal of j^arliamentary opposi- 
 tion, Edicards v. Grand Junction R. 
 Co., 1 Myl. & C. 650 ; Stanley v. 
 Chester, dec. R. Co., 3 Myl. & C. 773 ; 
 Preston v. Liverpool, <^c. R. Co., 5 H. 
 L. Ca^ 605 ; Webb v. Direct London, 
 dr. R. Co., 1 De G. M. & G. 521 ; 
 
 Havolces v. Eastern Counties R. Co., 1 
 De G. M. & G. 737 ; 5 H. L. Ca. 
 331 ; Stuart v. N. W. R Co., 1 De G. 
 M. & G. 721 ; Cooday v. Colchester R. 
 Co., 17 Beav. 132 ; Shrewsbury and 
 Birm. R. Co. v. N. W. R. Co.,\Q Jur. 
 311 Q. B. ; 6 H. L. Ca. 112 ; Lane, 
 and Carl. R. Go. v. L. N. W. R. Go. 
 2 K. & Jo. 293 ; Earl of Shrewsbury v. 
 iV\ Stafords. R. Co.,!.. K 1 Eq. 593 ; 
 See Sugd. 75. Lindley Partners: I, 
 355. 
 
 iq) 27 & 28 Vict. c. 19. 
 
 (r) Henderson v. Australian Royal 
 Mail, (L-c. Co., 5 E. & B. 409 ; and see 
 South of Irelan d Colliery Co. v. Waddle, 
 L. E. 3 C. P. 463, afFd. L. E. 4 C. P. 
 617, and the cases there cited.
 
 MATTERS CONNECTED THEREWITH. 191 
 
 (4.) As to the clems it (s). Chap. V. 
 
 Sect. 4. 
 
 The deposit is a payment by anticipation of part of t"he — 
 
 purchase-money (t) ; and the purchaser cannot elect to forfeit deposit. 
 
 it and avoid the agreement (it). paTt^ayment. 
 
 Even the deposit should not be paid to a mere agent for Payment o£. 
 sale, without express authority from the vendor. If the 
 authority be for the agent to receive it at a particular time, 
 or in a particular manner, of course it cannot be safely paid, 
 except to, or by the direction of, the vendor, at any other 
 time, or in any other manner (x) ; and the purchaser, will 
 not be liable for loss arising from his having followed any 
 such special authority as to the mode of payment (y). 
 
 If the vendor's solicitor receives the deposit he holds it Vendor's 
 
 solicitor 
 
 as agent for the vendor, and not as stakeholder for both receives it as 
 
 , . ^ <• his agent, and 
 
 parties {Z). jj^t ^ stake- 
 
 holder. 
 
 The deposit cannot safely be paid by the purchaser, by Not generally 
 being set off in account with the auctioneer or agent, except of accounts 
 under the special circumstances of his being able to show the ^"^^^ ^^ent ; 
 existence of a debt of equal amount due from the vendor to 
 the auctioneer or agent, and that the latter was authorized by 
 the vendor to retain the deposit on account of such debt (a) ; 
 so, if, instead of making a cash payment, the purchaser give ^'^^ '^J' *^^^ 
 
 piircu£bS6r s 
 
 his acceptance, payment of the bill when due is no defence bill 
 to an action by the vendor, if the bill never came into his 
 possession (b) ; so a cheque, if given for the deposit, should 
 be capable of being immediately cashed, and should not in- 
 clude other moneys (c). 
 
 (s) Et vide suimi, sect. 2. C. 414 ; Younr/v. White, 7 Beav. 506 ; 
 
 (t) Palvier \. Temple, 9 Ad. & E. Hanky v. Cassan, 11 Jur. 1088; 
 
 508, 520 ; Sug. 50. Sweeting v. Pearce, 7 Jur. N. S. Exch. 
 
 (m) 2 Mer. 506 ; and see 9 Ad. & 800 ; 9 C. B. N. S. 534 ; Bridr/es v. 
 
 E. 520. Garrett, L. R. 4 C. P. 580 ; see this 
 
 {x) See Youny v. Guy, 8 Beav. 149. case on appeal, L. R. 5 C. P. 451. 
 
 (y) Waricick v. Noakes, 1 Pea. {b) Sykes v. Giles, 5 M. & W. 645 ; 
 
 98 ; Hawkins v. Rvtt, ibid. 248 ; Williams v. Evans, L. R. 1 Q. B. 352. 
 
 E7jles V. Ellis, 4 Bing. 112 ; Sug. 49. (c) Bridges v. Garrett, L. R. 4 C. P. 
 
 (2) Edgell v. Day, L. R. 1 C. P. 80. 580 ; L. R. 5 C. P. 451. 
 
 (a) Barker v. Greenwood, 2 Y. &
 
 192 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 4. 
 
 £heque for, 
 when void. 
 
 If a cheque be given for the deposit, an action on the 
 cheque may be resisted upon any ground which would have 
 enabled the purchaser to recover at Law the deposit if 
 actually paid (d). 
 
 Investment of, 
 when binding 
 on purchasei' 
 or vendor. 
 
 If a purchaser become entitled to a return of his deposit, 
 he can, in the absence of special agi'eement, claim the specific 
 sum paid, with interest ; and will not be prejudiced or ad- 
 vantaged by any fall or rise in any securities in which it 
 may have been invested (e) ; unless such investment were 
 made with his assent (/), (which wiU not be assumed from 
 his making no reply to notice of the investment,) (g) or, (in 
 the case of a bill being filed for specific performance), under 
 the authority of the Court, in which cases the investment 
 will be at his risk and for his benefit (h) : and the same rules 
 apply to an investment of the purchase-money by the pur- 
 chaser, pending discussions as to title, &c. ; and also apply 
 conversely, for and against the vendor, in cases where, by 
 the purchase being completed, he becomes entitled to the 
 purchase-money (?'). 
 
 When no 
 enforceable 
 contract, the 
 deposit mnst 
 be returned ; 
 
 unless there 
 be a pro^dsion 
 for its^for- 
 feiture. 
 
 Where there is no contract, or no contract which can be 
 enforced, the purchaser is entitled to have his deposit re- 
 turned (/.;) : but where there is a valid contract, which the 
 purchaser refuses to j)erform, and which contains a clear 
 stipulation that, in the event of breach, the deposit is to be 
 forfeited, the vendor may retam it if paid, or may enforce 
 any security (e.g., an I O U) which he holds for it, and this 
 without reference to the amount of damage actually sus- 
 tained (I). 
 
 {d) Mills V. Odiiy, 6 Car. & P. 728. 
 
 (e) Doyley v. Pou-is, 3 Bro. C. C. 
 32 ; Poole v. Rudd, 3 Bro. C. C. 49 ; 
 Burroughes v. Browne, 9 Ha. C09. 
 
 (/) See St. Paid v. Birmhiyham, 
 &c. R. Co., 17 Jur. 1177 ; 11 Hare, 
 305. 
 
 (g) See Rolerts v. ^fasscy, 13 Ves. 
 501 ; AcUand v. Guhford, 2 Madd. 
 28. 
 
 (h) See Poole v, Rudd, 3 Bro. C. 
 C. 50. 
 
 {i) See Burroughes v. Browne, 9 
 Ha. 609. 
 
 (k) Casson \. Roberts, 31 Beav. 613 ; 
 8 Jur. N. S. 1199. See Belts v. 
 Burch, 4 H. & N. 506. 
 
 (0 Hhiton v. Sparkes, L. E. 3 C. P. 
 161.
 
 MATTERS CONNECTED TPIEREWITH. 193 
 
 Equity will, in general, relieve the purchaser against for- Chap. V. 
 feiture of his deposit, if he be able and Vvnlling to give to the 
 
 vendor the full benefit of the contract (m) : its return, with J'^^^^'J^fJ^^'g^^j 
 interest, may be directed even in a suit for specific perfor- against. 
 mance, where the bill is dismissed, if the vendor be plaintiff (91) ; 
 so, also, in a suit by the purchaser for rescission of the con- 
 tract, on the ground of misrepresentation or the like (o). 
 But, according to the practice which has hitherto prevailed, 
 the return of the deposit will not be ordered in a suit for 
 specific performance, where the purchaser is plaintiff and the 
 bill is dismissed Qj); nor where the vendor is plaintiff, if the 
 bill is dismissed without any decision upon the question of 
 title, but for laches, or on some other collateral ground (q). 
 It is conceived, however, that when the Judicature Act, 1873, 
 comes into force, the technical rule which has prevented a 
 Court of Equity from directing the return of the deposit 
 where the purchaser fails in his suit for specific performance, 
 viz., that the granting of any relief is inconsistent with 
 the dismissal of the bill, will no longer operate, and that 
 the Court will have jurisdiction in any action, whether for 
 the specific performance or the rescission of the contract, to 
 direct a return of the deposit, where the purchaser would 
 have been entitled to recover it at Law (r). If no title be 
 shown the purchaser has a lien on the estate for the amount Lien for. 
 of the deposit (.s), and also for his costs of suit (f) ; so, also, 
 if the contract be rescinded for misrepresentation or the 
 like (it). 
 
 If the purchaser die before obtaining a conveyance, in- j^fj.^5J^j/j._ 
 
 (m) Vernon v. Stephens, 2 P. Wms. G. & S. 325. 
 
 66 ; Moss v. Muttlicvs, 3 Ves. 279 ; (ry) Southcomh v. BlsJiop of Exeter, 
 
 Sug. 55.; Wehh V. Klvhy, 7 De G. M. & 6 Ha. 225, 228. 
 
 G. 136. ('•) See 36 & 37 Vict., c. 66, sect. 
 
 (n) Butler v. Lord Portarlimjinn, 24. 
 
 1 Dm. & W. 65 ; Graves v. Wright, [s] Wijthes v. Lee, 2 Jur. N. S. 7 ; 
 
 2 Dm. & W. 79 ; infra, Ch. XVIII. infra, Ch. X. s. 3 ; 3 Drew. 396. 
 
 s. 10. (0 Middltton v. Magnay, 2 H. & 
 
 (0) yormnre V. j5o/ton, L. R. 1 4 Eq. M. 233; Uindley v. Emery, 11 Jur. 
 
 124 ; nffd. L. E. 8 Ch. ap. 118. N. S. 874 ; Turner v. Marriott, L. R. 
 
 (^3) Bennct College y. Carey, 3 Bro. 3 Eq. 744. 
 
 C. C. 390 ; see Williams v. Edwards, (u) Torrance v. Bolton, L. R. 14 
 
 2 Sim. 78 ; also Gee v. Pearse, 2 De Eq. 124 ; L. E. 8 Ch. Ap. 118. 
 
 vol.. I.
 
 194 
 
 THE SALE AND 
 
 Chap. V. 
 Sect. 4. 
 
 testate and without an heir, it seems probable tliat the vendor 
 might retain lioth the estate and the deposit. 
 
 Insolvency As a general rule, if the deposit l)e lost through the insol- 
 
 ,.f auctioneer. ^^^^^^ ^^ ^j^^ auctioneer, the loss falls on the vendor (x) ; but 
 fiduciary vendors, if they have used due diligence, will not 
 be personally liable to their cestui s que trust {y). 
 
 Eeturn of The Court has, on petition, ordered the return of a deposit 
 
 an-iup c ,. ^^.^^ ^^^ ^ purchaser under a fiat in Bankruptcy, which was 
 su])sequently superseded {z). 
 
 Lunatic pur- 
 chaser. 
 
 Tenant for 
 life not en- 
 titled to for- 
 feited de2:>osit. 
 
 Upon a purchase by a lunatic, the vendor cannot ha re- 
 quired to refund the deposit, unless he contracted with notice 
 of the lunacy («). 
 
 Where trustees, pursuant to the usual power, contracted 
 with the consent of the tenant for life, to sell, and a large 
 deposit was paid to the latter, and then the purchaser failed 
 to complete, it was held that the forfeited deposit did not 
 belong to the tenant for life, but must be treated as purchase- 
 money on an actual sale under the power (Jj). 
 
 Section 5. 
 
 A.S to puffers 
 and reserved 
 biddings. 
 
 The rule at 
 Law as to 
 employment 
 of a puffer. 
 
 (5.) As to f)uif'ers and reserved hiddhigs. 
 
 Prior to the recent statute of the 30 & 31 Vict. c. 48, it had 
 become well settled at LaAv that, in the absence of a stipula- 
 tion expressly reserving the vendor's right to bid, the 
 employment of a single puffer would of itself vitiate the sale, 
 even though it was not advertised as without reserve (c.) 
 
 (x) Sujird, sect. 2. 
 
 (y) Edwards v. Peahe, 7 Beav. 239 
 
 (r) Ex Parte Fccior, Buck, 428. 
 
 (rt) Bearan v. M'DunncU, 9 Exch. 
 309. As to Frost v. Beavan, 17 Jur. 
 369, vide supra, p. 7, n. (o) 
 
 (b) Shrewsbury v, Shrewsbury, IS 
 Jur. 397. 
 
 (c) See remarks of Lord Cranworth, 
 in Mortimer v. Bell (ubi supra), who 
 treats the rule as well established ; 
 
 IVar/'rno V. /(arnsQiHy 6, J\vr. N. S. 60 ; 
 
 Mainprice v, Wcstley, 11 Jur. N. S. 
 975 ; Green v. Baverstoclc, 10 Jur. 
 N. S. 1047; and see, too, Thornett v. 
 Haines, 15 M. & W., see pp. 371, 
 372 ; and see Wheeler v. Collier, 1 
 SIoo. & M. 123 ; Croiodcr v. Austin, 
 3 Bing. 3C8 ; Rex v. Marsh, 3 Y. & J. 
 331, where the puffer was employed 
 by the Crown. See now Gilliatt v. 
 Gilliatt, L. E. 9 Eq. 60, and supra, 
 p. 113.
 
 MATTERS CONNECTED THEREWITH. 195 
 
 In Equity, however, it was the generally received doctrine Chap. V. 
 that unless the propert}^ were expressly or impliedly offered "..,' 
 
 for sale without reserve (d), the employment of a hidder to ^"ffers. 
 
 1 1 11 1 1 / N 1 ^ r^"^*^ a« to 
 
 prevent its going at an undervalue was allowable (e) ; but in Equity. 
 
 the rule did not extend to authorize the employment of more 
 
 bidders than one, even although they were limited to the 
 
 same sum (/) ; nor even of a single bidder for the purpose of 
 
 enhancing the price indefinitely (//) ; but, on a sale in lots, 
 
 several bidders might, it is conceived, have been emj)loyed 
 
 for different parts of the property, provided that no lot WTre 
 
 protected by more than one Indder : nor was it material that 
 
 the pei-son employed to T)id and the purchaser were the onl}^ 
 
 ladders (h). 
 
 Equity had, in fact, favoured the employment of a person rurchasingi.y 
 
 •r. mistake, 
 
 to protect the property : for it had refused to enforce spccihc specific per- 
 performance against a vendor, in the several cases of a person ^l^^^^^^ '*" 
 generally known as his agent having bid for the purchaser ag<i"ist. 
 and been mistaken for a puffer (/), and of the person actually 
 employed to bid for the vendor having neglected so to 
 do (A;) : so, in a converse case, where, upon a sale of estates 
 belonging to several vendors, the person employed to protect 
 one estate, by mistake purchased another, the bill against 
 him for specific performance was dismissed (/). 
 
 The soundness of the cjeneral rule in Equity was however "Sale of Land 
 
 1-1 !> AT • by Auction 
 
 questioned l)y Lord Cranworth m the case of iMortnner v. Act, is(j7." 
 Bell (m) ; and now by the 80 & 31 Vict. c. 48, the rule 
 which must for the . future obtain in Equity has been con- 
 formed to that which was already well established at Law. 
 In every case the particular or conditions of sale must state 
 
 (d) Meculnvs v. Tanner, 5 Madd. {g) 12 Ve?. 483. 
 
 34 ; RoUnson V. Wall, 2 Ph. 372 ; [It) Ohlfidd v. Round, 5 Ves. 209. 
 
 and see Tliornett v. Ilainci, 15 M. & (i) Tivlnhv/ v. Morrice, 2 Bro. C. 
 
 W. 367. 0. 326. 
 
 (c) Woodivard V. Miller, 2 Coll (k) 3I((Sonv. Armit(i[/c,nVes. 25. 
 
 279, where the earlier cases are cited ; (l) Malins V. Freeman, 2 Ke. 25; 
 
 Flint V. Woodln, 9 Ha. 618. and see Swahland v. Dcursley, 29 
 
 (/) Wliceler v. Collier, 1 Moo. and Beav. 430. 
 
 M. 123 ; and see 15 M, and W. 372 ; {m) L. R. 1 Ch. Ap. 10. 
 ?kn(l Sixg. 10, 
 
 ^ a
 
 190 THE SALE AND MATTERS CONNECTED THEREWITH. 
 
 Chap. V. whether the land is sold without reserve, or subject to a 
 
 ^^*- ^- reserved price, or whether the right to bid is reserved ; and 
 
 if it is stated that the sale is without reserve, or to that 
 effect, it is made unlawful for the seller to employ any person 
 to bid at such sale, or for the auctioneer to take knowingly 
 a bidding from any such person. Where it is declared either 
 in the particular or conditions that the sale is subject to a 
 rio'ht for the seller to l)id, it is made lawful for the seller, or 
 any one person on his behalf, to bid at such auction, in such 
 manner as he may think proper. Prior to this statute, the 
 employment of a puffer where the sale was " without re- 
 serve," was as invalid in Equity as it was at Law ; nor did 
 it need the aid of a legislature to enable a vendor, by whom 
 a right of bidding is reserved, to bid by himself or a single 
 ao-eut. By the 1st section it is provided, that whenever a 
 sale by auction of land would be invalid at Law by reason 
 of the employment of a puffer, the same shall be deemed 
 invalid in Equity, as well as at law ; but the statute has 
 failed to meet in express terms the precise point at issue in 
 the practice at Law and in Equity, viz., whether, where the 
 sale is not expressly stated to be " without reserve," and a 
 right to bid is not expressly reserved by the vendor, or 
 notified to the purchaser, the employment of a single bidder, 
 s, to prevent a sale at an undervalue, is allowable. There can, 
 
 however, be no doubt, that in such a case, the rule which is 
 now well established at Lav\'- must for the future prevail in 
 Equity.
 
 197 
 
 CHAPTER VI. Chap. VI. 
 
 AS TO THE AGREEMENT. 
 
 1. As to the general necessity for a ivrltten agreement. 
 
 2. The ^preparation of formal agreements. 
 
 3. What informal documents may constitute an agreement. 
 
 4. The signature. 
 
 5. The stamps. 
 
 6. As to illegal agreements. 
 
 (1.) Under the Statute of Frauds {a), a witten memorandum Section l. 
 
 or note of agreement, signed by the party to be charged, or As to the 
 
 1 • • Ti /7 \ n ^ • 1 1 general 
 
 nis agent, is generally (6) necessary, as the only receivable necessity for 
 evidence (c) of any contract for the sale or purchase of lands, ^OT^ment 
 tenements, or hereditaments, or any estate or interest in or Written 
 concerning them ; whether such estate or interest be sub- gf^eraliy 
 sisting, or be proposed to be created de novo : and the Act necessary 
 extends to sales by auction (f?), and in Bankruptcy {e) ; but tute of 
 not, it is said, to sales by the Court (/) ; nor to purchases ^yj^^^ ^'^j^^ 
 
 under the order of the Court, if the owner of the estate i^ot within 
 
 the statute, 
 make no opposition to the confirmation of the report ap- 
 proving of the purchase {g) : not apparently to agreements 
 
 («) 29 Car. II. c. 3, see section 4 ; Jur. 1021, C.B.; Barhcortli v. Young, 
 
 Sug. 121. Under this section the 4 Drew. 1. 
 
 agent need not be aj^pointed in {d) See Att-Gen. v. Day, 1 Ves, 
 
 writing. 218; and 12 Ves. 472; lIiff(jinsonv> 
 
 [h) See an exception in cases of C'loices, 15 Ves. 521. 
 
 partnership, Essex v. Essex, 20 Beav. (c) Ex ixirte Cutts, 3 Dea. 267, 
 
 442 ; but see contra, Caddieh v. Skid- Lord Cottenham. 
 
 more, 2 De G. & Jo. 52. (/) See 1 Ves. 218 ; Lord v. Lord, 
 
 {c) For the Act does not avoid a 1 Sim. 503 ; but the purchaser is 
 
 parol contract, but merely, as a gene- always required to sign. 
 
 ral rule, precludes its being given in {'j) See 1 Ves. 218 ; 12 Ves. 472. 
 evidence ; see Leroux v. Brown, 16
 
 198 
 
 THE AGREEMENT. 
 
 Chap. VI, 
 Sect. 1. 
 
 by deed (h), sealing and delivery being in such cases suffi- 
 cient without sio'nature. 
 
 Parol exe- And although an actual demise by parol for any term not 
 
 mcnt foAeaso, exceeding three years, at a rent not less than two-thirds of 
 the improved value, is valid under the 2nd section of the 
 Statute (i), an executory agreement for such a demise is void 
 unless in writing. So a parol agreement by a lessee for an 
 assignment of the residue of his term (being less than three 
 years) is void ; and cannot, it would seem, operate as an 
 underlease (IS). 
 
 or for assign- 
 ment of 
 terms less 
 til an three 
 years, void. 
 
 An instni- 
 ment void as 
 a lease may 
 Le supported 
 as an agree- 
 ment. 
 
 A lease for a term exceeding three years must, under the 1st 
 section, be in writing, and now, under the 8 & 9 Vict. c. lOG, 
 s. 3, by deed ; but in Equity, an instrument containing present 
 words of demise, but void as a lease for want of sealing and 
 delivery, will be supported as an agreement (I). In one case, 
 a document, not under seal, and therefore void as a lease, 
 has been held at Law to be also void as an agreement (in) ; 
 but the soundness of this decision has been questioned ; 
 and in a later case, whei'e by the same instrument, not 
 under seal, A. agreed to let and B. to take certain premises 
 from the date of the agreement until Lady-day then next, 
 and thenceforward for three years, but as to the latter term 
 the consent of the landlord was to be obtained, and a lease 
 was to be executed, it was held that there was a lease for 
 the former period, and an agi'eement for a lease as to the 
 latter (n) ; so where a document void as a lease contained 
 an undertaking to grant a lease, it was held that it was 
 good as an agreement, and that an action would lie on the 
 contract (o). 
 
 (h) Chcrri/ v. Needham, 4 Exch. 
 G31,636. 
 
 (/) Sec Crosby v. Wadsworth, 6 
 East, G02, 610 ; Lord Bolton v. Tom- 
 lin, 5 Ad. & E. 857, 864. 
 
 {k) Barrett v. Rolpli, 14 M. & W. 
 318. 
 
 {I) Parler v. Taswdl, 2 De CI. & 
 Jo. 559 ; see, too, Coivcn v. Phillips, 9 
 Jur. N. S. 657. 
 
 {m) Stratton v. Pdtit, 1 Jur. N. S. 
 662 ; 16 C. B. 420 ; Bmri/ v. Mac- 
 namara, 1 Jur. N. S. 1163 ; 5 E. & 
 B. 612 ; but see Tress v. Savar/c, 4 
 E. & B. 36. 
 
 (n) Eollason v. Leon, 7 Jur. N. S. 
 608 ; and see comments on Stratton 
 V. Pdtit. 
 
 (o) Bond V. Pioslhnj, 8 Jur. N, S.78.
 
 THE AGREEMENT. 109 
 
 The first section of tlie Act, which renders a writing Chap. VI. 
 necessary fur the creation of "all leases, estates, interests 
 
 of freehold, or terms of years, or any uncertain interest, of, p^^j.^^ licence 
 in or out of any lands," &c., has been held not to extend to ^^ ^'^^^'^• 
 a licence ; e.g., a licence to A., in consideration of a yearly 
 payment, to stack coals on a piece of ground for seven years, 
 with the sole use of the land so employed (^>) ; hut although 
 this decision has been often followed {q), its authority, so 
 far as it may tend to show that an irrevocable interest may Semhle, not. 
 be thus created, seems to be destroyed by subsequent cases 
 which decide that an easement cannot, at least as against 
 the inheritance (r), be granted without deed (s) : it is also 
 conceived that a parol executory agreement for such a 
 licence would probably be invalid ; the words, "in or con- 
 cerning," in the 4th section, being, apparently, more com- 
 prehensive than the words, "of, in, or out of," in the 1st 
 section. 
 
 A mere licence is revocable by the grantor at any time (/) ; Licence 
 
 111- revocable, 
 
 but reasonable notice of the revocation should be given (i<.). 
 
 Where a memorandum was endorsed on a lease, that the 
 
 lessee should have the exclusive right of sporting over the 
 
 demised and adjoining properties, and there was evidence 
 
 that the enjoyment of this privilege was an essential part 
 
 of the consideration for taking the lease, the landlord was 
 
 restrained from interfering with the right, until he had 
 
 executed a proper legal grant (x). 
 
 Any arrangement which is substantially, although not ^"^^ ^"J^'^' 
 
 {p) Wood V. Lale, Say. 3 ; also re- 8 Q. B. 757 ; Adams v. Andrews, 15 
 
 ported 13 M. & W. 348. See as to Q. B. 284 ; Ruffcy v. Henderson, 21 
 
 the effect of licences, Doe v. Wood, L. J. 49, (J. B. 
 
 2 B. & Aid. 724. (0 Wood v. Leadbitlcr, 13 M. & 
 
 (r/) Sug. 123, 124 ; see cases cited, W. 838, whicli see also as to the 
 
 13 M. & W. 840. distinction between a mere license, 
 
 ()•) See 8 Q. B. 778. and a grant with a license annexed. 
 
 (.5) See 1 Jarm. Conv. by S. 289, («) Cornish v. Siuhhs, L. H. 5 C. T. 
 
 and cases there cited ; and, in parti- 334 ; Mcllor v. Watkins, L. R. 9 
 
 cular, Coder v. Cowper, 1 Cro. M. & Q. B. 400. 
 
 Bv. 418 ; Bird v. Unjginson, 4 Nev, & (.«) Fro<jk.>j v. I'Mrl of Lovelace, 
 
 M. 505 ; and see W^ood v. Lcadhlitcr, Johns. 333. 
 13 M. & W. 838 ; Pcrrrj v. Fltihowc,
 
 200 
 
 Chap. VI. 
 Sect. 1. 
 
 stantially 
 for a sale, is 
 within the 
 statute. 
 
 THE AGREEMENT. 
 
 professedly, a sale of an interest in land, is within the 4th 
 __ section, and requires a written contract: e.g., an agreement by 
 a person possessed of a term for years, to give up possession 
 to another, and allow him to become tenant for the remainder 
 of the term, in consideration of his paying in part for certain 
 repairs {y) ; or an agreement by the termor to quit possession 
 on a certain day, and pay all outgoings up to that time, in 
 consideration of a sum of money to be paid to him by a 
 party who has agreed with the landlord for a lease of the 
 premises on the termination of the subsisting term {z) ; or 
 an agreement by a termor, under similar circumstances, that 
 he will part mth the land, and that the intended lessee 
 shall take it {z) ; or an agreement by a person who has no 
 interest in the property, to procure a sale and conveyance of 
 it to a person who wants to buy it («). 
 
 So, a parol agreement by A. with an occupying tenant to 
 pay him £100, upon the tenant suiTendering his lease, and 
 procuring the landlord to accept A. as tenant, is void (6) ; 
 nor can the tenant sue for the consideration, upon the con- 
 tract, although he have performed his part of it ; but he may 
 sue upon an account stated, if, after such performance, A. 
 have admitted that he is indebted to him in the amount of 
 the consideration (h). So, where there was a parol agree- 
 ment for the transfer of a tenancy, and the transferee 
 promised to pay the arrears of rent, it was held that the 
 transferor could not recover damages for breach of the 
 promise (c). 
 
 But an agreement merely collateral to a proposed dealing 
 with land does not seem to be within the Act : e.g., an agree- 
 
 Agreement 
 merely col- 
 lateral, C.'J., 
 
 i.y mortgagor ^^gnt bv an intending mortgagor to pay to an intending 
 
 to pay costs. '' ^ . i^iiii 
 
 mortgagee his costs of investigating the title, should such 
 title prove bad {d) : so where the agreement, so far as it 
 
 (y) Buttcmerv. IIayes,Z Jur. 704. 
 
 (z) Smith V. Tombs, 3 Jur. 72. 
 
 (a) Horsey v. Graham, L. E. 5 
 C P. 9. 
 
 ih) Cochwj V. Ward, 1 C. B. S5S ; 
 Kdhj V. Webster, 12 C. B. 283; 
 
 Smart v, Uardh'j, 3 C. L. E. 351 ; 
 
 15C. B. 652. i\^r^uEii L2>^^»'.^iajfef/./? /oQQ'h 
 
 (c) Hodgson v. Johnson, 5 Jur. N* 
 S. 290 ; 1 Ell. Bl. & Ell. 685. 
 
 {d) Jeakes v. White, 6 Exch. 873, 
 
 I
 
 THE AGREEMENT. 
 
 201 
 
 relates to land, lias been executed, it has been held that an 
 action will lie for the non-performance of a special promise 
 to be performed after execution, as, e.g., an undertaking to 
 repay part of the price on a certain event (e). 
 
 Chap. VI. 
 Sect. 1. 
 
 An agreement void under the 4th section, may, until coun- Void agree- 
 termanded, operate as a licence, so as to excuse what would as a licence 
 otherwise be trespass (/). pas^^ 
 
 And the transfer in writing of a parol, and therefore void, Written 
 
 transfer of 
 
 agreement for purchase of an estate, will be a good considera- parol agree- 
 tion as between transferor and transferee, if the latter 
 actually obtain a conveyance from the vendor (jj) : so, if an 
 agent for purchase enter into a parol agreement, and pay the 
 purchase-money, and procure a conveyance, he can sue his 
 principal for the amount {It). 
 
 The words in the 4th section relating to "any estate or Mining bnt 
 interest " in lands have been held to extend to shares in a shares 
 mining company (i), unless conducted on the cost-book prin- 4^^ ^^^^.^ 
 ciple (IS) ; and to Westminster Improvement Bonds (/) ; but 
 not to shares in a railway company ; at least if the Act of 
 Incoiporation makes them personal estate {m) ; so too they 
 extend to a partnership in land (n). 
 
 Questions frequently aiise as to the necessity for a written Sale of 
 
 growing 
 
 agreement for the sale of growing crops ; the law upon the crops. 
 
 (e) Green v. Saddlngton, 7 E. & B. 
 503 ; 3 Jur. N. S. 717 ; CoeUivj v. 
 Ward, 1 C. B. 858 ; and see Griffiths 
 T. Younrj, 12 East, 513. 
 
 (/) Carrinfjton v. Roots, 2 M. & W. 
 248 ; See Crash)/ v. Wadsworth, 6 
 East, 602; Winter v. BrocJavdl, 8 
 East, 308 ; and see 8 Q. B. 778 ; and 
 Jluffci/ V. Henderson, 21 L. J. 49, 
 Q. B. 
 
 (y) Seaman v. Price, 1 Ey. & M. 
 195. 
 
 [h) Pawle V. Gunn, 4 Bing. N. 0. 
 445. 
 
 (/) Boiiee V. Greene, Bat. 608 ; but 
 see commentti on this case in Lindley, 
 2nd ed., p. 674. 
 
 (Ic) Watson V. Spratley, 10 Excb. 
 222 ; see, too, Poicell v. Jessop, 18 
 C. B. 336; Walker v. Bartlctt, 
 ib. 845 ; and llayter v. Tuclxr, 
 4 K. & J. 243. 
 
 (/) Toppin V. Lomas, 16 C. B. 145. 
 
 (m) Bradlc;/ v. Iloldswortli, 3 M. 
 & W. 422 ; Dunciift v. Alhrccht, 12 
 Sim. 189 ; afltd. 199. 
 
 (») Caddick v. Skidmore, 2 De G. & 
 Jo. 52.
 
 202 THE AGREEMENT. 
 
 Chap. VI. subject can hardly be considered as settled (o) ; but the fol- 
 ^^' lowing appears to be the general result of the authorities : — 
 
 The point to be determined in such cases is, whether the 
 interest contracted for is an interest in land w^ithin the 
 meaning of the 4th section of the Statute of Frauds ; — in 
 which case a written agreement is necessary ; — or Avhether 
 the contract is merely for the sale of chattels; in which case, 
 however, unless the price be under £10, there must, under the 
 17th section, be a written agreement or memorandum, signed 
 by the party or by his agent, or part payment of the price, 
 or part acceptance of the goods (p) : but a bill of lading, 
 which is the symbol of the property, may be so dealt with 
 as to constitute an acceptance within the 17th section (q); 
 thus, where goods remained in the possession of the seller, 
 but the buyer, to whom an invoice had been sent, dealt with 
 them as if warehoused on his behalf, it was held that there 
 was a constructive acceptance which satisfied the statute (r): 
 the mere agreement however does not, until the time foi- its 
 completion has arrived, transfer the property in chattels (s). 
 
 Cases within An agreement for sale of the exclusive right to the vesture 
 
 section! <jf l^iid, or for sale of crops which would not go as emble- 
 
 ments to the executor (f) as mowing grass (w), standing 
 underwood (a:), poles or timber, is within the 4th section; 
 nor, in the case of grass, does it appear to be material 
 whether it is to be mowed or fed otf by the purchaser ; 
 that is, if, in the latter case, he is to have the exclusive 
 
 (o) Sug. 124—126. 390, and cases cited ; and Morion v. 
 
 ip) Smith V. Surman, 9 B. & C. Tihlctt, 15 Q. B. 428 ; Jlohncs v. 
 
 569. IfosJdns, 9 Excli. 753. 
 
 (q) Meredith v. Mci'jh, 2 E. & B. {I) See judgment in Evans v. llo- 
 
 364; Curric v. Anderson, 6 Jur. N. herts, 5 B. & C. 829 : and as to em- 
 
 S. 442. blements, Greives v. Weld, 5 B. & 
 
 (r) Castle v. Stcorelcr, 8 Jur. N. S. Ad. 105 ; Sug. 125. 
 
 233. ('0 Crosby v. WctdsKorth, 6 East, 
 
 (s) Leovjon v. Toorjood, 13 M. & G02 ; Carrinyton \. Roots, 2M. k\Y. 
 
 W. 27 ; and see Skddon v. Cruik- 248. 
 
 shanl; 16 M. & W. 71. See as to (x) Scorell r. Boxedl,! Y. & J. S{J6. 
 acceptance, Sentnders v. Tojyp, 4 Exch. 
 
 I
 
 THE AGREEMENT. 203 
 
 lio-ht to it (ii) ; so, also, an ao-reement for the sale of growing Chap. Vi. 
 fruits (e.rf., pears) (s), is within the 4th section. 
 
 But if the agreement be for sale of the crop after the ^;^^^^^"^j[^ 
 seller shall have reduced it to a chattel by severance from 4th sect. 
 the freehold, as where standing timber is to be felled by the 
 vendor, the 4th section does not seem to apply (^0 : and the 
 same distinction would, it is conceived, exist in agreements 
 for the sale of gravel {h), stone, or other minerals : nor does 
 the 4th section seem to affect sales of crops Avhich would 
 go as emblements (c) ; such as hops (d), wheat, potatoes, 
 turnips (c), &c. : nor does it appear material in such cases Emblemeuts. 
 whether the crop at the time of sale is mature or otherwise, 
 or whether it is to be removed by the buyer or seller, or to 
 be paid for by the quantity or by the acre (/) ; and even in 
 the case of grass, if the vendor retain possession of the land, 
 and the right of turning on his own cattle, and the pur- 
 chaser have no light of severance, but only to feed it off 
 along with the vendor, the agreement is merely for agist- 
 ment, and is not within the 4th section (<j) ; nor does this 
 section apply to an agreement in respect of damage to the 
 surface (It) : but in none of these cases is it prudent to 
 dispense with a wiitten contract. 
 
 And a parol agreement, for the sale of growing crops, l':ii''>l agi-ee- 
 
 . . . munt good 
 
 which would otherwise be void under the 4th section, may between 
 be u'ood as between outgoing and incoming tenants (/) : but ' ' 
 
 f' . . . I'ut not as 
 
 a sale of the growing crops by the lessor to the incoming between lessor 
 tenant, seems to re([uire a wiitten contract under the 4th tenant. ° 
 
 (ij) See Jones v. Flint, 10 Ad. & E. (e) Dunne v. Ferr/iison, 1 Hay, 541. 
 
 760. (/) Parker v. Stnniland, 11 East, 
 
 (s) Bodwcll V. PhiUqx'i, 9 INI. & W. 362 ; Wartcick v. Bruce, 2 Man. & S. 
 
 501 ; scd qu. Whether so, if the 205 ; Evans v. Boherts, 5 B. & C. 829 ; 
 
 crop be mature at the time of sale ? Ilallcn v. Bunder, 1 Cro. M. & II. 
 
 (a) S^nith v. Surman, 9 B. & C. 266, 275 ; Sainsbury v. Matlhews, 4 
 551 ; and see 1 Cr. & M. 105. M. & AV. 343 ; Dunne v. Fertjuson, 1 
 
 (b) See Coulton v. Ambler, 13 M. & Hay. 541. 
 
 \V. 403. i'j) Jones v. Flint, 10 Ad. & E. 760. 
 
 (c) Siig. 125 ; but sue Waddinrjton (/<) Orijfilhs v. Jenkins, 10 Jur. 
 V. Bristoiv, 2 B. & P. 452. N. S. 207. 
 
 (VZ) Evans v. Roberts, 5 B. & C. 829 ; (/) Mayfield v. Wadslcy, 3 B. & C. 
 
 see judgment ; and Sug. 126. 357 ; and see Sug. 125.
 
 204 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 1. 
 
 section (A). The reason for the distinction which has been 
 drawn between the two cases in favour of the former of 
 them seems to be far from clear. 
 
 Vendor's 
 remedy if 
 purchaser 
 take the crop. 
 
 All agreement 
 to take fur- 
 nished 
 lodgings not 
 within the 
 •ith sect. 
 
 Parol agree- 
 ment for sale 
 of tenant's 
 fixtures, 
 ^\•hether 
 sufficient. 
 
 And althoiTfih an ao-reement be void under the 4th section, 
 the seller (unless perhaps the parties be landlord and tenant), 
 can recover the value of the crop if it be taken or received 
 by the pui'chaser (?) ; but he cannot recover on the terms 
 of the agreement, but only on a quantum valehcd (m). 
 
 An agreement to take furnished lodgings in a boarding- 
 house, is not a contract for an interest in land within the 
 4th section (-)?). 
 
 A sale of tenant's fixtures by the tenant to the landlord, 
 has been held not to be within the 4th section, although 
 they be sold while attached to the freehold (o): the so-called 
 sale of the fixtures being merely a renunciation of the nght 
 
 to remove them. 
 
 Agreement 
 for increase, 
 or abatement, 
 of rent. 
 
 An agreement by a tenant to pay an increased sum by 
 way of rent, in consideration of improvements to be made 
 by the landlord, has been held not to be within the Act ; 
 and therefore to be valid although by parol (j?) : but a 
 different rule has been laid doAvn as respects an agreement 
 for abatement of rent (q). In the one case the agTcement is, 
 in effect, to pay the landlord, by instalments, for services 
 rendered ; in the other, the agreement is for a release of part 
 of the rent. 
 
 Void agree- 
 ment for 
 {intw alia) 
 
 If an asTeement relating; to the sale of land be void under 
 
 the 4th section, it will also be void as respects any other 
 
 {k) Lord Falmouth v. Thomas, 1 Cr. 266, 276 ; and compare Lee v. Risdom, 
 
 & M. 89. 7 Taunt. 188. 
 
 (7) Tcall V. Avty, 4 Moo. 542; (p) DonncUanv. Reade,o B. k A. 
 
 Knowles v, ^lichel, 13 East, 249. 899, 904 ; Ilohi/ v. Eoehuclc, 7 Taunt. 
 
 {m) 1 Cr. & M. 109. 157. 
 
 (n) Wri'jht v. Stewart, 6 Jur. N. S. (q) O'Connor v. Spaight, 1 Sch. & 
 
 867. L. 306. 
 
 (o) llaUen v. Rundcr, 1 Cr. ?.I. & K.
 
 THE AGREEMENT. 205 
 
 matters, which are either inseparably mixed up with, or are Chap. vi. 
 
 , . , / \ 1 Sect. 1. 
 
 dependent upon, the prmcipal agreement (rj : e.g., where a 
 
 tenant agreed to rent a furnished house, and the landlord J^^^'^J^ere 
 was to supply additional furniture after the tenant had void, in toto. 
 taken possession, it was held, that the want of a written 
 contract was a bar to an action for non-delivery of the 
 furniture (.s) ; so, upon a parol agreement to let a house, 
 and to make certain repairs, which the tenant was to pay 
 for, it was held that the landlord could not sue him for the 
 cost of such repairs (t) : but this rule does not apply Avhere 
 the contracts, though m a sense connected with each other, 
 are in fact independent and separable {it). 
 
 (2.) As to the preimmtion of formal a/jreements. ^^^^^"^^ -• ' 
 
 As to the 
 
 Upon formal agreements for sale, few questions arise dis- preparation 
 tinguishable from those which have been already considered agre^ements. 
 with reference to the particulars and conditions. As to formal 
 
 ^ agreements. 
 
 In framino- such agreements, it is usual to make the As to naming 
 
 ^ . , the represen- 
 
 parties agree, each "for himself, his heirs, executors, and tativesofthe 
 administrators:" the insertion of the word "heirs," however, P'^^'^"'^'- 
 is scarcely correct, unless the instrument be under seal ; and 
 it is not necessary, although the general practice, to name 
 the personal representatives. 
 
 Upon a sale by auction, the agreement, of course, refers Agi-eement 
 
 T T r J.1 on s.ale by 
 
 to, and is generally written or printed upon, a copy oi, the auction, 
 particular and conditions. particulars, 
 
 &c. 
 
 It seems to be desirable for both parties when several lots 
 are bought by the same purchaser to have a separate con- 
 tract for each lot ; instead, as not unfrequently happens, of 
 
 (r) Cooke, v. Tomhs, 2 Anst. 420 ; 766 ; and see Lord Falmouth v. 
 
 see Maijfield v. Wadsley, 3 B. & C. Thomas, 1 Cr. & M. 89. 
 357, 361 ; and two next notes. («) Green v. Saddiagton, 7 E. & B. 
 
 {s)Mcchdeny. Wallace,! M. & E. .503; 3 Jur. N. S. 717; Cockinrj v. ^ , , „ ,^ _ . ,-,w 
 
 49. ^ ^^\mJ, 1 C.B. 858. iluC^c. Ct..c,.c^ » ^^(u J-R .Ic Q <i . n^- 
 
 {t) VaughaK v. JIancod; 3 C. B.
 
 206 
 
 THE AGREEMENT. 
 
 Chap. VI. all the lots beino- included in a sino^le contract at a lump 
 
 Sect. 2. " 
 Sinn. 
 
 What to be 
 
 comprised 
 in agreement, 
 on sale l)y 
 private con- 
 tract. 
 
 Upon a sale by private contract, the agreement (which is 
 usually prepared hy the vendor), as a general rule, comprises 
 whatever stipulations and other matter would, had the sale 
 been by auction, have been comprised within the particular 
 and conditions ; except such matter as exclusively applies to 
 an auction. When it is probable that special stipulations, 
 as to title, &;c., will be necessary, the agi-eement should Ije 
 prepared in blank before the estate is offered for sale. A 
 purchaser, on buying house property, should require anj- 
 existing policies of insurance to be included in the contract ; 
 and on the purchase of a reversion, he ought to procure a 
 stipulation to l)e inserted in the contract, that the vendor 
 shall pay the succession duty and indemnify him there- 
 from (:>') ; or, shall at once compound for and pay it. 
 
 mat supplied The rules prescribed by the Vendor and Purchaser Act, 
 
 by V endor . . 
 
 and Piirchaser 1874 (ij), and which, subject to any stipulation to the 
 contrary in the contract, now regulate the obligations and 
 lights of vendor and purchaser, aj)ply equally whether the 
 land (z) is sold l;)y public auction or by private treaty. 
 
 blatters to be 
 provided for, 
 in agreement 
 for sale to 
 public com- 
 panies, &c. 
 
 In prepaiing agreements for the sale of land to promoters 
 of pul )lic undertakings, care should be taken to state whether 
 the purchase-money is to be in lieu of those accommodation 
 Avorks which the promoters are irrimd facie bound to make 
 and maintain for the owners of adjoining land; and whether 
 the ordinary or statutory rule as to the expenses of the pur- 
 chaser is to operate (re) : the agreement for sale to a railway 
 or waterworks company, should, if such be the intention, 
 expressly state that the mines and minerals are included in 
 the purchase Q>). 
 
 {x) See Cooper v. Trcxohy, 28 Beav. an incorporeal hereditament. 
 19i. («) See Frend and Ware's E. Con v. 
 
 {y) 37 & 38 Vict., c. 78, sect. 2. 1 4(5. 
 
 (z) This enactment does not seem ('j) Sec 8 & 9 Vict, c, 20, .<?. 77, 
 
 to e^stwA to A: cox^tiTfwt ?oy tltr ?filp oC nt\d 10 ^ W Vict. c. 17, 5. V^,
 
 THE AGREEMENT. 
 
 207 
 
 When a lease or other docuinent contains a clause giving 
 the lessee or any other person a right of preemption, the 
 same or like stipulations should be inserted for the protec- 
 tion of the future vendor in respect to title, expenses, and 
 other matters, as Avould be inserted in an al)solute contract 
 for sale and purchase. The precaution is one which is 
 frequently omitted in preparing leases which contain pre- 
 emption clauses. 
 
 Chap. VI. 
 Sect. 2. 
 
 Preemption 
 clauses. 
 
 (3). ^.s to wJiat infonncl documents rnay constitute an 
 agreement. 
 
 Informal agreements give rise to questions of greater 
 difficulty. 
 
 We may lay down as general, although not universal rules, 
 1st, that any A^a-iting signed by the party to be charged, or 
 his agent, and which, either expressly or by reference to 
 other writings, determines the parties to and subject-matter 
 of a contract, and fixes, or provides the compulsory means of 
 fixincT, all its terms, is a sufficient agreement within the 
 Statute; and, 2ndly, that no writing is a sufficient agree- 
 ment, which fails in any of the above-mentioned particulars. 
 
 Section 3. 
 
 As to what 
 informal docu- 
 ments may 
 constitute an 
 agreement. 
 Informal 
 agreements. 
 What may he 
 a sufficient 
 agi-eement 
 within the 
 statute. 
 
 Thus letters are constantly held to constitute a binding Letters, 
 contract ; and often where such a result is a surprise upon 
 the writers (c) : and a letter addressed by either a vendor, 
 or, it would appear, a purchaser, to a third person, with 
 directions incidental to the carrying out of the agreement — 
 e.g., the delivery of title deeds, or preparation of the con- 
 veyance — may suffice to bind the writer {d) : and a letter, 
 
 (c) Kennedy v. Lee, 3 Mer. 4-il. 
 " The same construction must be put 
 upon a letter, that would be applied 
 to the case of a more formal instru- 
 ment ; the only difference being, that 
 a letter, or correspondence, is gene- 
 rally more loose and inaccurate in re- 
 spect of terms, and creates a greater 
 difficulty in fi.rtiving: at a precise con- 
 
 clusion." Per Lord Eldon, ibid. 4.")! ; 
 see also Ojilvie v. Foljamhe, 3 INIer. 
 53 ; Thomas v. Blachnan, 1 Coll. 301 ; 
 and Grcm v. Cramer, 2 Con. & L. 
 54, 63 ; and see Fitzmaurice v. Bayloj, 
 3 Jur. N. S. 264 ; revd. on app. 
 (Exch. Ch.) 4 Jur. N. S. 506 ; (H.L.) 
 C Jur. N. S. 1215. 
 
 ('0 \Va\fr>vO, \% Bcazely, 3 Atk.
 
 208 THE AGREEMENT. 
 
 Chap. VI. which contained an admission of the bargain, and of all its 
 ' essential terms, has been held a sufficient memorandum to 
 
 satisfy the Statute, notwithstanding that the writer at the 
 same time repudiated his liability- (c) : so, also, letters written 
 with reference to a pending dispute as to whether a parol 
 agreement has been duly performed; and embodying the 
 terms of that agreement (/) : so, the vendor's receipt for the 
 Receipt for purchasc-money or deposit, or a similar receipt signed by 
 money.^^" ^^^^ auctioneer, or the entry of sale made by him in his 
 
 books ((/), or a bond of reference to a surveyor to settle the 
 price to be paid l^y the purchaser, would, it appears, be 
 sufficient (h) : and in one case, where there was a parol 
 agreement in contemplation of marriage, and after the 
 marriage, an affidavit in another matter was sworn and 
 filed by the person sought to be charged, it was held that 
 there was a sufficient memorandum to satisfy the Statute (/)• 
 
 As to contracts Where a will gave to A. an option of purchase within a 
 preemp lou. j^j-j^-^g^j period, a mere verbal declaration to the trustees that 
 he intended to take the property, the purchase-money re- 
 maining unpaid and the conveyance unexecuted, was, of 
 course, held insufficient (k). Such an option can, doubtless, 
 be enforced (I), but the conditions imposed on its exercise 
 
 Strictly con- are always strictly construed ; and all precedent conditions 
 must be fulhlled by the purchaser before any conti'act 
 binding the vendor can arise (on). Thus where the donee of 
 a right of preemption on payment of the price within a 
 limited time, duly signified his intention of purchasing and 
 
 503 ; Cooke v. Tomhs, 2 Anst. 420, Sug. 134, 139. 
 
 426 ; Ou-en v. Thomas, 3 Myl. & K. (/() Per Lord Eosslyn, 6 Ves. 17. 
 
 853; liose v. Cimynyhame, 11 Ves. (i) Barhvorth v. Younff,i Drew. 1 ; 
 
 550 ; Sug. 139 ; Goodv.in v. Fielding, but see tlie form of the affidavit, and 
 
 4 De G-. M. & G. 90. qiuvre. As to an answer in Chancery 
 
 (e) Bailey v. Sweeting, 9 C. B. N. S. being a sufficient memorandum, see 
 
 843 ; see, too, Gibson v. Jlollancl, L. E. Ridgway v. ^Yharton, 5 De G. M. & G. 
 
 1 C. P. 1, and cases there cited. 677, and lide infra. 
 
 if) Fyson v. Kitson, 3 C. L. E. (/.:) Bauson v. Baicson, 8 Sim. 346. 
 
 705. (/) Lord Baelnor v. Slutfto, 11 Ves. 
 
 ig) Coles V. Trecuthicl; 9 Ves. 234 ; 448, 454 ; Coohon v. Coohson, 8 Sim, 
 
 Blagden v. Bradhear, 12 Ves. 4G6 ; 529. 
 
 Goslcll V. Archer, 2 Ad. & E. 500 ; (m) Weston \. Collins, 11 Jur. N, S. 
 
 Emmcrson v. Heelis, 2 Taunt, 38, 48 ; 190.
 
 THE AGREEMENT. 209 
 
 applied for an abstract, but the prescribed period expired Chap. VI. 
 without the purchase-money being paid or any ftirther step __! U 
 
 taken, the right of preemption was lost (n) ; but whore there 
 was a contract for a lease with a right of preemption, it was 
 held that the right to purchase was independent of the right 
 to a lease, and was not avoided by the forfeiture of the 
 latter (o). Whether an option of purchase, " at all times I^ig^t of op- 
 thereafter," when created by agreement, can be exercised times there- 
 after the death of the owner of the property, has been 
 doubted Q)) ; and unless its exercise be restrained by 
 the context to a period allowed by the rule against per- 
 petuities, the validity of the pov.^er in toto may be open to 
 cjuestion. But where there was an agreement to let a house 
 for three years, and at the tenant's request to grant a lease 
 from the expiration of the tenancy, the tenant who had 
 continued in occupation was held entitled four years after 
 the expiration of the three years' tenancy to have a lease 
 granted (q) ; so where two partners were possessed of free- 
 holds, with an option for the survivor to purchase the whole, 
 if either should die during the partnership term, and the 
 partnership was prolonged by parol arrangement, it was 
 held that the right of preemption continued subsisting (r). 
 "Where an option of purchasing is given at what the trustees 
 shall consider to be a fair and reasonable price, their 
 decision, in the absence of fraud, is conclusive (s). 
 
 Notice given by a railway or other public company (t) of Notice by or 
 
 T •! 1 . to railway 
 
 their intention to exercise a power oi compulsorily taking companies, &c. 
 land (ii), constitutes a contract binding on the company to 
 
 (») BrooTce v. Garrod, 3 Ka. & Jo. 474 ; see, too, Bucldand v. PapiUon, 
 
 608 ; 2 De. G. & Jo. 62 ; see, too, Al- ib. 477. 
 
 derson v. White, 3 Jur. N. S. 1316 ; 2 (r) Fsscx v. Fssex, 20 Beav. 442 ; 
 
 De G. & Jo. 97. but see Caddiclc v. Skidmore, 2 Da 
 
 (o) Green v. Loiv, 22 Beav. 625 ; G. & Jo. 52. 
 
 bii-t see the terms of the contract. (s) Edmonds v. Milhtt, 20 Beav. 
 
 See as to what is a sufficient exercise 54. 
 
 of the option, Powell v. Loverjrot-e, 8 (<) The case seems to be different 
 
 De G. M. & G. 357; Austin v. Tmo- with Commissioners under a Pubhc 
 
 ncy, L. R. 2Ch. Ap. 143. Act, see Reg. v. Commissioners of 
 
 {p ) Stacker v. Dean, 16 Beav. 161. Woods and Forests, 15 Q. B. 761. 
 
 ( q ) 3Ioss v. Barton, L. E. 1 Eq. («) As to the extent of .such 
 
 VOL. I. V
 
 210 
 
 THE AGREEMENT. 
 
 Chap. VI. the extent of fixing what land is to be taken (x) ; and cannot 
 __^_!ll_l_ be withdrawn by the company without the consent of the 
 landowner (jj) ; and the price, if not settled by agreement, 
 must be determined in the manner pointed out by the Act 
 n<it simpliciter of Parliament (z) : but the mere service of the notice does 
 not constitute a contract by the landowner for the sale of 
 his land ; nor is there, strictly speaking, any contract be- 
 tween the parties until they have come to some definite 
 arranofement as to the terms, or until the value of the 
 land to be taken has been ascertained by arbitration, or a 
 jury {('). Thus, where the landowner, after service of the 
 notice, stated the price ^vhich he was -wdlling to take, 
 but died before his offer was accepted, it was held that, 
 although the purchase was afterwards completed at 
 that price, there was no contract binding on the heir (/>). 
 Where, however, the price is ascertained, either by arbi- 
 tration (r) or Ijy the valuation of two surveyors ((?), or 
 
 powers, with reference to 8 & 9 Vict. 
 c. 20, s. 16, see Cothcr v. Midland 
 R. Co., 2 Ph. 469; Beardmcr v. 
 London and N. W. R. Co., 1 Mac. & 
 G. 112 ; Sadd v. Maldon, dr., R. Co., 
 6 Exch. 143. As to how far tun- 
 nelling under, or throwing an arch 
 over, property is a " taking," see 
 Sparroio v. Oxford, d-c, R. Co., 2 De 
 G. M. &. G. 108 ; Pinckin v. Black- 
 waU R. Co., 1 K. & J. 46, 47, 66 ; 5 
 De G. M. & G. 851. 
 
 (x) Adams v. Blachcall R. Co., 2 
 Mac. & G. 118 ; 6 Eail. Ca. 271. 
 
 (y) Taicney v. Lynn and Ely R. 
 Co., 16 L. J. N. S., Ch. 282, V.-C. 
 E. ; and see Re^j. v. Birminr/ham and 
 Oxford Junction R. Co., 15 Q. B. 
 634; affd. 647 ; and see 13 & 14 Vict. 
 c. 83, s. 20, recognizing the principle 
 as respects abandoned lines ; Barker 
 V. N. Staf R. Co., 5 Kail. Ca. 401 ; 
 Lane, ^c, R. Co. v. Evans, 15 Beav. 
 331 ; Blount v. Great S. cO IF. R. Co., 
 2 Ir. Ch. E. 40 ; Lord Salisbury v. 
 Great N. R. Co., 3 E. & B. 443 ; 
 Ediniurgh R. Co. v. Leven, 1 Macq. 
 H. L. C. 284 ; and see now the 
 Abandonment of Railways Act, 1SC9, 
 
 32 & 33 Vict. c. 114. 
 
 (2) See Rex v. IIun;jerford Market 
 Co., 4 B. & Ad. 317 ; Salmon v. Ran- 
 dall, 3 Myl. & C. 439 ; Stone v. Com- 
 mercial R. Co., 4 Myl. & Cr. 124 ; 
 Walker v. Eastern Counties R. Co., 6 
 Ha. 584 ; Stamps v. Birminr/ham and 
 Stour Valley R. Co., 2 Phill. 673 ; 
 Burkinshav) v. Birmingham, ttr., R. 
 Co., 5 Exch. 475 ; supra, p. 56 ; infra, 
 Ch. X. s. 5 ; Adams v. Blackwall R. 
 Co., 2 Mac. & G. 118 ; Ilaynes v. 
 Ilaynes, 1 Drew. & Sma. 426 ; and 
 see Gnerson v. Cheshire Lines Com- 
 mittee, L. B. 19 Eq. 83. 
 
 («) Haynes v. Ilaynes, 1 Drew. & 
 Sma. 426, disapproving Walker v. 
 Eastern Counties R. Co., 6 Ha. 594 ; 
 and see, too, Adams v. Blackirall R, 
 Co., 2 Mac. & G. 118 ; Regent's Canal 
 Co. v. Ware, 23 Beav. 575 ; and judg- 
 ment of V.-C. Kindersley in Haynes 
 v. JIaynes, and cases there cited. 
 
 (b) Re Arnold, 32 Beav. 591 ; 9 
 Jur. X. S. 883. 
 
 (c) Harding v. Mctrop. R. Co., 
 L. R., 7 Ch. Ap. 154. 
 
 ((/) Waits v. Watts, L. E. 17, Eq. 
 217.
 
 THE AGREEMENT, 211 
 
 by agreement, or the verdict of a jury (c), the coutract is Chap. vi. 
 complete, and may be specifically enforced against the com- ^° ' ' 
 pany. A notice to treat, given to and acquiesced in, by 
 tenants for life having a joint power of absolute appoint- 
 ment over the settled estate, does not amount to such 
 a defective exercise of the power as the Court can aid as 
 against the remainderman (/) : nor, if given to a person 
 having a defeasible interest in the estate, and which is de- 
 feated by other parties in their conveyance to the company, 
 does it give such person any right of suit against the com- 
 pany {(j). Where notice is served on a lessee, who is re- 
 strained from alienating without his lessor's licence, the 
 necessity of obtaining such licence is taken away by the 
 operation of the Act {h). 
 
 Notice l)y a company under the Lands Clauses Consolida- Notice by 
 
 rn.il\Vtiv 
 
 tion Act, of their intention to take part only of any house, or companies 
 other building or manufactory, does not amount to an agree- ^^ a\ou^" 
 ment to take the whole, although under the 92nd section of 
 the Act the owners may, 13}^ counter-notice, require the com- 
 pany to take the whole or nothing (/) : and thereupon a Court 
 of Equity will restrain the company from taking less than 
 the whole (/.:) : the effect of the landowner's counter-notice Effect of _ 
 
 ^ ' , counter-notice 
 
 being to arrest the operation of the company's notice, con- by landowner, 
 ditionally on the landowner's being able and willing to sell 
 the whole : but if he declines, or is unable so to do, the com- 
 pany's notice revives (/). Although the landowner can 
 compel the conqmny, when they recpiire only a part, to 
 take the whole of the remaining property comprised in the 
 
 (c) See the judgment in J/atjnes v. Junction It. Co., L. E. 4 Eq. 112. 
 
 Hayncs, uhi. suprd ; and ride in/rd, (I) Hcu v. London and Houth- 
 
 Cli. VII. 8. 5. Western R. Co., 12 Q. B. 775. 
 
 (/) Morgan v. Milman, 3 De G. M. (^) Sparrow v. O-rford, cOc. R Co.,2 
 
 & CJ.. 24. De G. M. & G. 94: as to the effect of 
 
 (,'/) Ifill V. Great Northern R. Co., tunnels and arches, sec S. C, 108 ; 
 
 5 Uc G. M. & G. 6G ; as to whether Plnchhi v. Bladicall B. Co., 1 K. & 
 
 the notice converts the estate into J. 4G, 47, 66 ; 5 Do G. JI. & G. 851 ; 
 
 personalty as between the landowner's Furniss y. Midland B. Co., L. K. 6 
 
 real and personal representatives, vide Eii. 473. 
 
 infrd, Ch. VII. s. 5. (/) Sec 1 K. & J. 68. 
 
 [h) Slipper v. Tottenham and If. 
 
 p 2
 
 212 THE AGREEMENT. 
 
 Chap. VI, word " liouso," he cannot, it seems, compel tliem to take 
 - _!!j_1__ merely a portion of it (in). The right of giving such counter- 
 notice is not lost, if the company, having served a notice to 
 take part of the property, refuse to pay the price demanded 
 for it (n^ ; and where the company give notice to take a 
 part, and are served by the landowner with a counter-notice 
 to take the whole, the amount to be secured by deposit and 
 bond under the 85th section, before possession can be taken, 
 is the value of the entire property (o). 
 
 As to the The word " house " in the 92ndj section is construed 
 
 thTword liberally ; and includes everything which will ordinarily pass 
 
 " house 
 under the 
 
 under that word in a conveyance (;/)). Thus, where the 
 Lands Clauses company required only a small portion of the garden, they 
 Act. ' were compelled to take the whole property (q) ; even where 
 
 the houses were unfinished, and in a ruinous state (r) ; so, 
 also, where they required greenhouses and ornamental 
 pleasure ground connected with the residence which was 
 not touched, the rest of the land being used as a nursery 
 garden (s). But a cottage built upon land used as a market- 
 garden and occupied merely for the more beneficial occupa- 
 tion of the land as a market-garden, does not with the land 
 constitute a "house" within the meaning of the section (t); so, 
 also, where the landowner was entitled under the same lease 
 to a messuage and garden on one side of a public highway, 
 and to a detached piece of pleasure ground on the opposite 
 side, on which he was prohibited from building, and which 
 alone the company was desirous of purchasing, it was held 
 that the detached portion formed no part of the "house" 
 within the meaning of the Act (it) ; so also, where the por- 
 
 {m) Pulling v. L. C. and D. R. Co., Beav. 242 ; Gi'osvenor v, Hampstead 
 
 33 Beav. 644 ; afifd. diibitante L. J. Junction E. Co., 1 De G. & Jo. 446 ; 
 
 Knight Bruce. King v. Wycombe R. Co., 28 Beav. 104. 
 
 {n) Gardner v. Charing Cross R- (r) Alexander v. Crystal Palace R. 
 
 Co., 8 Jur. N. S. 51 ; 2 J. & H. 248. Co., 30 Beav. 556. 
 
 (o) Underwood v. Bedford and Cam- (s) Salter v. Metrop. Dist. R., 
 
 Iridge R. Co., 7 Jur. N. S. 941 ; Dad- Co., L. E. 9 Eq. 432. 
 
 sonv. East Kent R. Co., ih. 941. (t) Falkner v. Somerset and Dorset 
 
 (p) St. Thomas Hospital v. Charing R. Co., L. R. 16 Eq. 458. 
 
 Cross R. Co., 1 .7. & H. 400. (») Ferguson v. London and Brigh- 
 
 (2) Cole V. West London R. Co., 27 ton R. Co., 33 Beav. 103 ; affd. on ap-
 
 THE AGREEMENT. 213 
 
 tion, separated by tlie highway, was used for the purpose Chap. Yi. 
 of pasturing horses and cows for the owner's establish- LJ 
 
 ment (x) ; so in the case of two contiguous dwelling-houses 
 the mere continuity of the open space immediately under 
 the roof and above the party-wall which separate the attics 
 up to their ceiling, and the inter-communication of the 
 drains and gutters, do not constitute the two dwellings a 
 single " house " (ij) ; but in one case, a vacant piece of land, 
 not fenced off from the street, and separated from the house 
 by a public footway, but forming the only means of approach 
 for vehicles, was held to be part of the "house" within the 
 meaning of the Act (z). The result of the cases seems to 
 establish that what is necessary for the convenient use and 
 occupation of the house, but not what is subsidiary to the 
 personal use and enjoyment of the occupier, falls within the 
 statutory meaning of the word. It is, however, obvious 
 that cases may occur in which garden or pleasure ground 
 separated from a house, even by a public high-road, may be 
 almost as material to the due enjoyment of the house, as if 
 the separating road had no existence : e.g., Avhere the road 
 is in a cutting, and there is a bridge thrown across it. 
 
 Where the company required to take part of a building what is a 
 which had been used as a manufactory, though such user ^.^j.^ -. ^vitMu 
 had been discontinued for several years, they were compelled, ^'^" '^^*'- 
 at the instance of the landowner, not only to take the whole, 
 but also all the machinery and trade fixtures therein (a). 
 So where a railway company gave notice of their intention 
 to take a mill-goit and weir, which occasionally supplied 
 the motive power for the machinery, they were compelled 
 
 peal, the Lords Justices differing in Committee, L. R. 19 Eq. 83 ; as to 
 
 opinion : et quare. what is part of a "house" within the 
 
 (a;) Steele v. Midland R. Co., L. R. 92nd section, see Anon., cited 3 De 
 
 1 Ch. Ap. 275 ; duUtantc L. J. Knight G. & S. 420. 
 
 BrucG. («) Gibson v. Jlammcrsmith and 
 
 (y) Earns v. South Devon JR. Co., City E. Co., 9 Jur. N. S. 221 ; and aa 
 
 Weelcly Notes, 1874, 195 ; on appeal, to what is a "manufactory," geo 
 
 ib. 218. Barker v. .V. S. R. Co., 2 De G. & S. 
 
 (2;) Marson v. London, Chatham 55 ; Balin v. L. and N. W. R. Co., 3 
 
 and Dover R. Co., L. R. 6 Eq. 101 ; Dc G. & S. 414. 
 and see Oricrson v. Cheshire Lines'
 
 214 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 Statutory 
 power not 
 exhausted by 
 single notice. 
 
 to take the whole manufactory, although they proposed to 
 carry the railway over Ijridges which would not interfere 
 with the water supply (h). 
 
 Under the above Act, a company may give a second 
 notice to the same landowner in respect of land Avithin the 
 limits to which their compulsory powers extend, if, from 
 unforseen circumstances, the land taken under the first 
 notice prove insufficient for the authorized purposes of the 
 undertaking (c) ; but they may not make use of their 
 compulsory powers to attain a subsidiary object, not 
 authorized for the purposes of their undertaking (d). 
 Where a landowner is entitled by notice to require the 
 company to purchase his interest in lands affected l)y the 
 undertaking, the service of such notice constitutes the 
 relation of vendor and purchaser (e) ; but it seems now to 
 be settled that a mere notice by a company, not followed up 
 by entry or other proceedings, within the period limited for 
 compulsory purchase, does not constitute such a contract as 
 Equity will specifically enforce (/). In such a case the 
 proper course for the landowner is Ijy mandamus to compel 
 the company to proceed with the other steps directed l)y 
 their Act. 
 
 Notice must But the notice given by the company to the landowner 
 
 be acted on cannot Operate for an indefinite time ; it must be acted on 
 
 withm reason- ^ 
 
 able time. within a reasonable period, or it will be deemed to have 
 been abandoned. Thus, Avhere a railway company, within 
 
 I 
 
 {h) Farniss v. Midland R. Co., L. K, 
 6 Eq. 473. 
 
 (c) StamjDS V. Birmingham and 
 Stour YaJleii R. Co., 2 Ph. 673 ; G 
 Rail. Ca. 123 ; and .see Simpson v. 
 Lancaster and Carlisle R. Co., 15 Sim. 
 5S0. 
 
 ((/) Eversficld v. Mid-Sussex R. Co., 
 1 Giff. 153 ; 3 De G. & Jo., 286 ; Dodd 
 V. Salishury and Yeovil R. Co.,ih. 158; 
 Galloway v. Mayor, ti-c. of London, 4 
 N. R. 77 ; and compare Simpson v. 
 South Staffoj-dshire WatericorJcs Co., 
 5 N. Tv. 70 ; Wand v. Epsom I?. Co., 8 
 
 C. B. N. S. 731 ; Wehb v. Manchester, 
 cDc. R. Co., 4 M. & Cr, 118 ; Flower v. 
 London and Bvi<jhton R. Co., 2 Dr. & 
 Sm. 330 ; Att.-Gcn. v. G. E. R. Co. 
 L. R 6 Ch. Ap. 572. 
 
 (e) Doo V. London and Croydon 
 Canal Co., 1 Eail. C. 257 ; Reg. v. 
 Birmingham R. Co., 15 Q. B, 634, 
 647, n. 
 
 (/) See supra, p. 210 note, («), and 
 Regent's Canal Co. v. Ware, 23 Beav. 
 575 ; Leominster C. Co. v. Shrewsbury, 
 1-c. R. Co., 3 K. & Jo. 672.
 
 THE AGREEMENT. 215 
 
 the time limited fur the exercise of their compulsory powers, Chap. vi. 
 served notice on the landowner, }3ut no agreement was '^^^' ^' 
 
 entered into, and tlie time fixed by the Act for the com- 
 pletion of the line expired before any further steps were 
 taken, the company was restrained fi'om proceeding under 
 the notice ((j). And Lord Cairns seemed inclined to lay it 
 down as a general rule, that where the time limited for the 
 completion of the works has expired, the company can no 
 longer exercise their compulsory powers of purchasing (h). 
 
 If a defendant by his answer to the plaintiff's bill for sj)e- Answer in a 
 cific perfoi-mance, admits the parol agreement, Ijut neglects maTbe^a ^"' 
 to claim the benefit of the Statute, this will constitute a sufficient 
 
 memoranduin. 
 
 sufficient memorandum in writing to satisfy the Statute (?'). 
 So, too, an affidavit filed by the party to be charged (k) ; 
 and his signature, though not alleged, Avill be presumed by 
 the Court, as an affidavit nnist be signed before it is 
 sworn (/). 
 
 And it is now well settled that a written agreement after. Written 
 in pursuance of a parol agreement before, marriage, is a suffi- after in 
 cient memorandum within the Statute (m). pursuance 
 
 ^ ' of a parol 
 
 agreement 
 before, 
 
 But — and the case may be considered as exceptive from the marriage, 
 first general rule — where B. had entered into a parol ae'ree- ^f^} '"''^H' 
 
 '^ ± & abstract, &c., 
 
 ment to sell an estate to W., and B.'s agent made out and insufficient ; 
 signed a rent-roll, entitled " Rent-roll of lands agreed to be 
 sold by B. to W. from May 17G2, at 21 years' purchase for 
 the clear yearly rent," and the amount of the I'ent was then 
 corrected by B. in his own handwriting, and the rent-roll so 
 
 iff) Itichmond v. NoHk London R. medy hy mandamus. 
 
 CK L- Tt. 5 Eq. 352; L. E. 3 Ch. (/) liidyicay v. Wharton, Z De U. 
 
 Ap. C79 ; and see and consider M. & G. 677 ; Jaclson v. Ofjlander, 
 
 rinchin v. London and Bladmdl 2 H. & M. 4G5 ; and vide infrd. Ch. 
 
 R. Co., 1 K. & Jo. 34 ; 5 De G. M. XVIII. s. 7. 
 
 & G., 851 ; which see also as to the (/.') Barlicorth v. Young, 4 Drew. 1. 
 
 landowner's remedy in case of delay (I) lb. 
 
 by the company ; 1 K. & Jo. 69. {m) Tarjlor v. Birch, 1 Ves. Sen. 
 
 {h) Richmond v. North Londo)i R. 297 ; Barhvorth v. Young, 4 DreM-. 1 ; 
 
 Co., L. R. 3 Ch. Ap. 681 ; and vide Ilammersley v. De Bid, 12 CI. & Fin. 
 
 infrd, Ch. XVII. s. 9, as to the re- G4 n ; and infrd, Ch. XVIII. s. 7.
 
 21G 
 
 Chap. VI. 
 Sect, 3. 
 
 and letters to 
 creditors ; 
 or letter 
 written as 
 an abandon- 
 ment. 
 
 llecital of 
 aofreement, 
 held sufficient. 
 
 Petition for 
 
 investment 
 
 of tnist 
 
 fund, and 
 
 order 
 
 directing 
 
 inquiries. 
 
 THE AGREEMENT. 
 
 altered was delivered to W., and abstracts of title were also 
 delivered, and B. sent letters to his creditors informing tliem 
 of the sale, it was held, that there was no sufficient agree- 
 ment (n) ; nor Avill a letter suggesting an abandonment of a 
 parol agreement (o) take the case out of the Statute ; but 
 where, at Law, an agreement was produced in the following 
 v.^ords, viz., " A. having agreed to purchase of B. for £250 the 
 two leasehold houses situate, &c., B. hereby agrees to paper 
 and paint, A. to pay £230 at the time of the contract, and 
 the remaining £20 on the completion of the painting," the 
 agreement to purchase, although recited as an existing 
 agreement, was considered to form part of the agreement 
 produced {p). 
 
 So a petition by a lando\\aier, who was also tenant for 
 life of a settled fund, praying that it might be invested in 
 purchase of the land, and an order merely directing an 
 inquir}^ as to whether the proposed purchase was a proper 
 one, and as to the title, have been held not to constitute a 
 binding contract as against the landowner ; but the Court 
 raised the question as to what would have been the effect 
 of the order, had it gone on in the usual way to direct that 
 if the purchase were a proper one and the title good, the 
 sale should be carried into efiect {q). 
 
 Document 
 relied on 
 must consist 
 ■with alleged 
 parol agree- 
 ment. 
 
 It is, of course, necessary that the letter or other document 
 relied on shoidd be consistent Avith the parol agreement set 
 up by the party relying on it (r). 
 
 (n) Whahij v. Bagnd, 1 Bro, P, C, 
 845 (the decision was upon the Irish 
 Statute of Frauds, which corresponds 
 with the English Act) ; Coolcc v. 
 Toombs, 2 Anst. 420 ; and see Cass v. 
 Watcrhouse, Free, Ch. 29. 
 
 (o) Gosbell V. Archer, 2 Ad. & E, 
 500 ; Fyson v, Kitson, 3 C. L. R. 705 ; 
 see Tavmey v. Crov.-ther, 3 Bro. C, C. 
 161, 318, where the vendor being 
 pressed to sign the agreement, wrote 
 that " his word should be as good as 
 any security he could give," and was 
 
 held bound j but this seems to be bad 
 law; see 1 Sch. & Lef. 34 ; Mmmscll 
 V. White, IJ, & L. 567 ; and see 3 Ves. 
 713 ; and Tanner v. Smart, 6 B. & 0. 
 603. See, too. Pain v. Coombs, 1 De 
 G. & Jo. 34 ; Buclcmaster v, RussclL 
 8 Jur. N, S. 155, ^"i^ Chuairr.^ K ^^"^^ c<w 
 
 (p) Hall V, Betty, 4 Man. & G, 410 ; 
 see De Porquct v. Pa[/c, 20 L. J. Q. B, 
 28. 
 
 (q) Shrcrcsbury v. Shreicsbury, 18 
 Jur, 397. 
 
 (>■) ConjKr V. Smith, 15 East 103.
 
 THE AGREEMENT. 217 
 
 As to both parties being named : — it is stated to have Ckap. VI, 
 been said by Lord Cowper (Lord Keeper), " that if a man 
 
 being in company makes offers of a bargain, and then writes J^Jj^^pjf^jgg 
 them do^vi^ and signs them, and the other person then takes must be 
 
 -11 jy2 • named, 
 
 them up and prefers his bill, there will be a sutfacient 
 
 agreement " (s) ; and the dictum, which was extrajudicial, 
 is cited by Lord St. Leonards (t) : however, in Boijce v. 
 Green (it), a memorandum in these words, " Sold 100 Mining 
 Purdies at 17s. Gd." and signed by the vendor, was held 
 insufficient, as not mentioning the name of the purchaser (x). 
 So, in a modern case, a document in the following terms, " A. 
 agrees to buy the whole of the lots of marble, purchased by 
 B. at Lyme Cobb, at Is. per foot," was held insufficient, 
 because B.'s name as seller was not mentioned in it {y) ; but 
 this decision has been disapproved; and in a later case, 
 where J. W., a duly authorized agent of R., the seller made 
 the following entry in the book of N. the buyer, " Mr. N. 
 32 sacks culasses at 39s. 280 lbs., to wait orders, J. W.," 
 it was held that there was a sufficient memorandum in 
 writing to satisfy the Statute ; and that parol evidence was 
 admissible to show that N. was a baker, and R. a dealer in 
 flour (z). So, it has been held, that, in order to bind the 
 purchaser by his own signature, either the name of the 
 vendor must aj^pear l^y the agreement or in the conditions 
 or particulars thereliy referred to, or the vendor, or the auc- 
 tioneer, as his agent, must sign the agreement (a). Later p.esult of 
 cases have carried the rule still further ; and it appears to be 
 now clearly settled that, in order to satisfy the Statute, both 
 parties should be specified, either nominally or by a sufficient 
 description (h) ; and the reference must be unmistakeable ; 
 
 (s) Coleman v. U2-)Cot, 5 Vin. Ab.527. Ex. 316. 
 
 {t) Sug. 131; it may be inferred (z) Ne^cell v. Radford, Jj.T..i'E^. 52; 
 
 from the report that the agreement and see Sa7'l wBourdiUon, 5 W.K.. 196. 
 
 in Knicjht v. Crockford, 1 Esp. 190, (Vf) Wheeler v. Collier, Moo. & M. 
 
 contained the plaintiff's name. 123 ; and see Jacob v. Kirh, 2 Moo. & 
 
 (m) Bat. 608. R. 221. 
 
 (ic) See Scafjood v. Meale, Prec. Ch. {h) Williams v. Lalcc, 29 L. J. Q. 13. 
 
 560 ; Champion v. Plummcr, 1 Bos. & 1 ; 6 Jur. N. S. 451, a case under 
 
 P. N. R. 254 ; und Graham v. Musson, the 4th section ; Williams v. Bi/ri^e, 
 
 7 Sc. 769. 9 Jur. N. S. 863, a case under the 
 
 (y) Vandenhergh r. Sjwoncr, L. R. 1 17th section. 
 
 recent cases.
 
 218 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 the mere description of one of the contracting parties as 
 " yoTU' client," in a letter addressed to his solicitor, has been 
 held insufficient (c). Thus, the usual memorandum signed 
 by the auctioneer, and confirming the contract on behalf of 
 " the vendor " is insufficient, if the vendor is not named 
 or described in such memorandum, or in the particulars or 
 conditions ((/). But such a confirmation is sufficient if the 
 particulars identify, although they do not name, the vendoi- ; 
 as where they describe him as "the executor of" A. B. (c). 
 or even according to a very recent decision, where they 
 merely state that the sale is " by direction of the pro- 
 prietor" (/). Where, however, the agreement is wanting 
 in the name of either of the parties, it may be supplied 
 by any other Avriting connected with it {(j). Notwith- 
 standing the recent decisions, the vendor's name is seldom 
 inserted in the agreement on a sale by auction ; the 
 omission may often lead to serious difficulty (A). 
 
 As to the In the case of a letter, if the name of the party to 
 
 case'oV'^ ^^ whom it is addressed appear in an indorsed direction, or be 
 an agreement ^yrittcn at the foot of the letter, no difficulty on the above 
 
 by letter. 
 
 point can arise : if an enveloj)e be used, the name may 
 often not appear in the letter ; but the Court, it is conceived, 
 would receive evidence connecting the envelope with the 
 inclosure (/). 
 
 Offer by 
 letter, when 
 binding. 
 Party 
 accepting 
 offer is not 
 
 
 A letter, it may be remarked, binds the writer from the 
 time of the inception of its transmission ; not of its receipt 
 Ijy the other party (/) : and a person bound to accept or 
 reject an ofter Ijy a particular post, and duly posting his 
 
 De G. & Jo. 
 
 ((7) Potter V. Duffield, L. R. 18 Eq. il 
 
 (t) Hood V. Lord Barrhvjlon, L. E. 
 6 Eq. 218, but the first paragraph 
 of the judgment cannot be relied on as 
 sound law. 
 
 (/) Scde V. Lamlcrt, L. R. ISEq. 1, 
 sed quo're. 
 
 {ij) Warner v. Will in ff Ion, 3 Drew. 
 523. See too, 1 De G. & Jo. [,96. 
 
 (A) See Warner v. Willi arjton, and 
 l<keltvn V. Cole, ubi svprd ; and Smith 
 V. Neale, 2 C. B. N. S. 67 ; 3 Jur. 
 N. S. 516 ; lieuss v. PicMey, L. K. 1 
 Ex. 342. 
 
 (/) Sari V. Bourdillon, 5 W. R. 196. 
 
 (/.•) Potter V. Sanders, 6 Ha. 1 ; see 
 Ilcrnaman v. C'oryton, 5 Exch. 453, 
 and compare Waifs case L. R. 15, 
 Eq. 18.
 
 THE AGREEMENT. 219 
 
 letter, is not responsiljle for delay in the post-office (?) ; even Chap. VI. 
 
 although, by mistake, he date his reply a day in advance, so ' 
 
 that, through such delay, the letter be delivered at a time ^J-'^]'^^ ?'''*^, 
 
 ' "^ '> ^ delay in the 
 
 apparently consistent with its erroneous date (//<). post-office. 
 
 A general description of the estate, — e.a., "Mr. O.'s General 
 
 ^ • /-( 1 I tle.scription 
 
 house " ()i), or " my house " (o), or, " the property in Cable of property 
 
 sufficient. 
 
 Street " (p), or, " the house in Newport " (g), or, " the intended 
 new public-house at Putney " (/•), or, " the premises " (.s) — is 
 sufficient, if parol evidence can be produced to show Avhat 
 property was intended : but if the property be described by 
 reference to a plan or instrument, so vague as not to admit of 
 a legal construction, the defect would, it is conceived, be 
 fatal if) ; so, an agreement to lease the " coals, &c.," under 
 specified closes, would seem to be too ambiguous to be en- 
 forced (it) ; but an agreement for a lease of a farm containing 
 about 437 acres, " except 37 acres thereof," which were not 
 specified, was held capable of being enforced, the Court giving 
 the lessee the right of selection {x) ; so an agreement to take 
 a lease of all those two seams of coal, known as the two-feet 
 coal and the three-feet coal, "lying under lands liercafter to 
 he dejined in the Bank End Estate," was considered suffi- 
 ciently definite, the true construction being that the bound- 
 aries of the whole estate were to be afterwards ascertained {y): 
 so, the reservation in a contract of " the right to search for 
 
 ( I) Adams v. LiiulseU, 1 B. & Akl. 11 Ves. 350, where the description of 
 
 C81 ; Duncan v. Topham, 8 C. B. 225. the property, as " the land I bought 
 
 (m) See Danlop v. IIi'j(j!ns, 1 H. L. of Mr. Peters," seems to have been 
 
 C. 30G ; but see comments on this sufficient ; although, the terms of the 
 
 ca&e in British and Amcriran li. Co. V. purchase not appearing, it Avas held 
 
 Colson, L. R. 6 Exch. 108, and see that there was no agreement, 
 
 now WaWs case, uhi supra, aA\A geneV' {r) Wood v. /SWoV/t, 2 K. & Jo. 33. 
 
 ally on this subject Benjamin on Sales. {s) lb.; and see M' Murray v. Spicer, 
 
 QKfcre, where the receiver has done an 16 W. R. 332. 
 
 irrevocable act upon the error into (^ Monro v. Taylor, 8 Ila. 51. 
 
 which he has been led by the blunder («) Price v. Griffith, 1 De G. ISL 
 
 of the sender. & G. 80 ; and see Stuart v. L. <£r N. 
 
 {n) Ogilvic v. Foljamhe, 3 Mer. Gl. W. R. Co., 1 De G. M. & G. 721. 
 
 (o) Coxdcy V. Watts, 17 Jur. 172. (•'•) Jcnlins v. Green, 27 Beav. 437. 
 
 p) BleaUey v. Smith, 11 Sim. 150. (//) Ifnymn;! v Jff<2^->'Trnra^U0, 
 
 (r/) Owenv. Thomas, 3 Myh & K. awi r^nw^v h^yt^inni r C'cf^ i'^Mc^^. 
 353 ; and see Rose v. Cunynrjhnme,
 
 220 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 and work mines, minerals," c£-c. (0), and the words " good- 
 will, d-c." in a contract for the sale of a foundry («), have 
 been considered sufficiently free from ambiguity, to enable 
 the Court to enforce specific performance. 
 
 But there 
 must be some 
 description. 
 
 And it is immaterial that the agreement does not distinguish 
 the tenures of the several portions of the estate (h) ; or even 
 the tenure of the whole estate if this can be shown to have 
 been in the knowledge of both parties (c). But there must 
 be some description of the property : e.g., a memorandum that 
 a party has disposed of "his writings," (i. c, title deeds,) is, 
 insufficient ((/). 
 
 The writing 
 must fix all 
 the terms of 
 the agree- 
 ment. 
 
 So, all the essential terms of the contract must be fixed ; 
 or, as in the case of the arbitration bond (e), the means of 
 compulsorily fixing them must be provided : thus, a receipt 
 for the deposit has been held insufficient to bind the con- 
 tract, because it did not state either the price or what 
 proportion the deposit bore to the price (/) ; so, an alleged 
 partnership in a mine was held to be not sufficiently proved 
 by receipts for sums of money on account of a share in the 
 mine, though such sums were exactly a moiety of tlie rent (g) ; 
 so, where the price was fixed subject to variation in respect 
 of a rent-charge, and it did not appear whether the amount 
 was OS. or Is. j9<3r annum, the defect was held fatal (h) ; so, 
 where the agreement for "a lease" does not specify the 
 intended duration of term, and nature of reservations (i) ; 
 
 (2) Parlcer v. Taswell, 2 De G. 
 & Jo. 559. 
 
 (a) Coo2Kr v. Hood, 26 Beav. 293. 
 
 (i) Monro v. Tcnjior, 8 Ha. 51. 
 
 (f) Coxdcij V. Watts, 17 Jur. 172. 
 
 (rf) Seagood v. 31calc, Free. Ch, 
 660. 
 
 (c) Supra, p. 208, n. (/(). 
 
 (/) Blagdcn v. Bradbcar, 12 Ves- 
 466; and see Cleric v. Wrlffht, 1 Atk. 
 12 ; Elmore v. Khujscotc, 5 B. & C. 
 683 ; Clinan v. Coolc, 1 Sch. & L. 22 ; 
 Milnes V. Oeru, 14 Ves. 400, 406 ; 
 Morgan v. Milman, 17 Jur. 193; 3 
 
 De G. M. & G. 24. 
 
 {(j) Caddich v. SJddmorc, 2 De G. 
 & Jo. 52, 
 
 (/() Lord Middleton v. Wilson, Sug. 
 135. But might it not be sufficient 
 if, in such a case, the plaintiff stated 
 the agi-eement according to that al- 
 ternative of construction which is 
 least favourable to himself ? 
 
 (/.) Cox V. Middleton, 2 Dre. 209, 
 219 ; Davis v. Jones, 25 L. J. N. S. 
 C. P. 91 ; and see Fitzmaurice v. 
 Bay ley, 9 H. L. Ca. 78, where the 
 lessee had ratified the contract.
 
 THE AGREEMENT. 221 
 
 SO, where, on a sale of the surface, it was provided that a Chap. VI. 
 royalty of GcZ. per ton should be paid for the minerals, and ., 
 
 that the same if not worked should be paid for as if gotten ; 
 there being no means provided for ascertaining what quantity 
 would have to be paid for (IS) : so a stipulation on the sale of 
 a foundry that "a large portion" of the purchase-money was 
 to be left in the business (I) : so, upon a sale subject to 
 conditions, the auctioneer's receipt or entry would be void, 
 unless it were actually annexed, or clearly referred, to the 
 conditions (in). 
 
 Where there was an agreement for the sale at a specified Agreement 
 
 for sale at a 
 
 price, and "20 per cent, upon any sum which the property specified 
 might realize above that price" at a sale by auction, which a"har^ of 
 was advertised to take place, and the vendor withdrew the profits on 
 
 ■•■ _ re -sale. 
 
 property from the sale, it was held that there was a valid 
 contract for purchase at the price specified, without the 
 addition of any per-centagc (n). 
 
 It appears probable that a general agreement to sell "at Price deter- 
 a fair valuation" may be enforced; and the Court will, if valuation, &c 
 necessary, direct a reference to ascertain the price (o) : but 
 where the mode of valuation is specified, it must be strictly 
 followed ; for instance, where the price is to be determined 
 by A. and B., or an umpire selected by them, and they fail 
 to agree upon the price, or to name an umpire, the Court can 
 
 (k) Williamson v. Wootton, 3 Di'C. consent) ; Gregory v. Mi'jheU, 18 Ves. 
 
 210. 328, 334 ; Pritchard v, Ovey, 1 Jac. 
 
 [l) Cooper V. Hood, 2G Beav. 293. & W. 396 ; Price v, Assheton, 1 Y. 
 
 (m) Ilinde v. Whilehoiise, 7 East, & C 82, 441 ; Poits v. Thames Haven 
 
 558, 509 ; Kenworthj v. Hchoficld, 2 Co., 15 Jur. 1004, V.-C, P. ; Morgan v. 
 
 B. & Cr. 945 ; and see Coles v. Tre- Mllman, 17 Jur. 19^ ; 3 De G. M. 
 
 cotUclc, 9 Ves. 234 ; Sug. 130 ; Wood & G. 24 ; Dav. Conv. 1, 538 ; et contra, 
 
 V. Midgley, 5 De G. M. & G. 41 ; Gourlay \. Duke of Somerset, 19 Ves. 
 
 Peirce v. Corf, L. E. 9 Q. B. 210. see p. 430 : Agar v. iMacklcw, 2 Sim. & 
 
 (n) Langstaff v. Nicholson, 25 Beav. St. 418 ; Logan v. Le Mesurier, 6 JIoo, 
 
 160. P. C. 132, Where snch an agree- 
 
 (o) See Milnes v. Gery, 14 Ves. ment was made a rule of Court under 
 
 400, 407 ; Lord Lonsdale v. Gaslxtrth, a consent clause, the Queen's Bench 
 
 cited 12 Ves. 108 (where the decree refused to grant an attachment : Pe 
 
 seems, however, to have been by Hemingway, 15 Q. B. 305, n., see 309.
 
 222 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 give no relief (-p) : so, as a general rule, if it is to be settled 
 by arbitration (r/). It has even been held that, in the latter 
 case, the terms of the award must, unless there be an agree- 
 ment to the contrary, be settled while both parties are 
 living, as the death of either revokes the power of the 
 arbitrators or uispire (r) : but, in the reported case, a 
 stipulation that the award should be delivered to the parties 
 (not naming their representatives) by a specified day, seems 
 to have been considered to indicate an intention merely to 
 delegate a personal authority : and there was a different 
 decision in an earlier case in Equity, where (such stipulation 
 being wanting) the general facts were very similar («). 
 Where, however, it is not of the essence of the contract that 
 the value should be fixed by arbitration, the Court may, it 
 seems, enforce the agreement and if necessary ascertain the 
 price {t). 
 
 Agreement 
 to take fix- 
 tures at a 
 valuation. 
 
 A distinction has been properly drawn between an agree- 
 ment that the price of the property itself shall be settled by 
 a valuation, and an agreement, upon the sale of buildings at 
 a specified price, that certain plant and machinery shall be 
 taken at a valuation (^^). In one case (.r), Y.-C. Kindersley 
 refused to enforce specific performance of a contract to pur- 
 chase the lease and goodwill of a public house at a specified 
 price, and the stock and fixtures at a valuation: but, in a 
 
 (p) Millies V. Ocry, iihi siqn-d ; and 
 see CootJb v. Jackson, 6 Ves. 12, 34 ; 
 Gourlay v. Duke of Somerset, 19 Ves. 
 431 ; Collins v. Collins, 26 Beav. 306 ; 
 and see Scott v. Corpn. of Liverpool, 
 3 De G. & Jo. 334, 367 ; Scott v. 
 Avery, 5. II. L. Ca. 811 ; Vickcrs v. 
 Viclcers, lu K. 4 Eq. 529 ; and see 
 Ilovrjhton V. Bankart, 3 De G. F. 
 & Jo. 16 ; a case of improper inter- 
 ference by tlie Court with the arbi- 
 trator's authorities. 
 
 (2) Morgan v. Milman, 17 Jur. 
 196 ; 3 De G. M. &. G. 24, 35 ; Dar- 
 bey V. Wkittaler, 4 Drew. 134 ; Til- 
 lett V. Charing Cross R. Co., 26 Beav. 
 419. 
 
 ()•) Blundcll V. Brettarcli, 17 Ves. 
 232, 242. 
 
 (s) Belchicr v. Bcynolds, 2 Ken. 
 pt. 2, 87. 
 
 (0 Dinham v. Bradford, L. II. 
 5 Ch. Ap. 519. 
 
 (m) Jackson v, Jackson, 1 Sm. & 
 G. 184 ; see Cumberland v. Bowes, 3 
 C. & R. 149, as to meaning of "a 
 fair valuation" on contract for sale of 
 farming stock. 
 
 (.1-) Darbey v. Whi faker, 4 Drew. 
 134, sed qua;re? Jackso7i v. Jackson, 
 does not seem to have been cited ; see 
 comments on these cases in Richardson 
 V. Smith, L. E. 5 Ch. Ap. 648, 652 
 654.
 
 THE AGREEMENT. 223 
 
 later case, where the contract fixed the price for the estate Chap. VI. 
 and provided that the purchaser sliould take certain fur- ^ 
 
 niture and chattels at a valuation to be made by valuers 
 to be mutually agreed upon, and the vendor refused to 
 appoint a valuer or to complete the sale, the Court of 
 Appeal, affirming V.-C. Stuart, considered that the clause 
 providing for the purchase of the furniture, &c., was merely 
 a minor and subsidiary part of the agreement, and not, as 
 in Darhcy v. Whitcd'cr, of the essence of the bargain, and 
 decreed specific performance of the contract, except so far as 
 it related to the personal chattels (y). In all cases where 
 such is the intention of the j^arties, the contract should 
 clearly show that it can be specifically enforced, so far as 
 it relates to the land, without reference to the fixtures or 
 articles which are to bo taken at a valuation. The agree- 
 ment ought to provide that, in tlic event of a valuation not 
 being made in the mode specified, the fixtures, &c., shall be 
 taken at their fair value (z). 
 
 By the 12th section of the Oonnnon Law Procedure Act, As to arbitra- 
 
 ,. ,,.p. f.,. . ti(3n under the 
 
 1854 {a), it IS enacted, that if, m any case of arbitration. Common i.aw 
 the document authorizing the reference provide that the A.ct*^T854 
 reference shall be to a single arbitrator, and all the parties 
 do not, after differences have arisen, concur in the appoint- 
 ment of an arbitrator, or if any appointed arbitrator refuse 
 to act, or l)ecome incapable of acting, or die, and the terms 
 uf such document do not show that it was intended that 
 such vacancy should not be supplied, and the parties do not 
 concur in appointing a new one ; or if, where the parties or 
 two arbitrators are at liberty to appoint an umpire or third 
 arbitrator, or if any appointed umpire or tliird arbitrator 
 refuse to act or become incapable of acting, or die, and the 
 terms of the document authorizing the reference do not 
 show that it was intended that such a vacancy should not 
 be supplied, and the parties or arbitrators respectively do 
 not appoint a new one, then — after notice and defeult, as 
 
 {)j) liichardson v. Smitli, L. R. 5 (r) Vide supra, p. 221, u. (o). 
 
 Ch. Ap. 648. (a) 17 & 18 Vict. c. 125.
 
 224 THE AGREEMENT. 
 
 Chap. VI. therein mentioned— a judge of any of the Superior Courts 
 __?!!!lil__ of Law or Equity may appoint an arbitrator, innpire, or 
 third arbitrator, as the case may be, who shall have the 
 same power of acting in the reference, and of making an 
 award, as if he had been appointed by the consent of all 
 parties. It has been decided that these provisions are 
 retrospective, and that they apply not only to references 
 authorized by any document, but also otherwise, as by Act 
 of Parliament, or by parol (6). Where there was a contract 
 for purchase at a price to be ascertained by two valuers, or 
 their umpire, and the valuers could not agree in the nomina- 
 tion of on umpire. Lord Romilly held that the matter was 
 one merely of appraisement, and not of arbitration, and that 
 he had no power under the Act to interfere (c) ; and this 
 decision has been approved and followed in a recent case at 
 Law, where it was held that a misstatement as to rental in 
 the particular, though a proper subject for compensation 
 within the conditions, was not a difference which might be 
 referred to arbitration under the Act; and that neither 
 party could, under section 13, appoint his own nominee as 
 sole arbitrator (J). But the cases of Collhis v. Collrns, and 
 Bos V. Helsham must not be taken to comprehend every 
 case of compensation or value. Thus, where, in order to 
 ascertain the value of the property, or the amount of com- 
 pensation to be awarded, the matter assumes the character 
 of a judicial enquiry, as e.g., where the valuers have to ad- 
 judicate upon a point of law, or a question of right between 
 the parties, arising out of the fact, the matter ceases to be a 
 simple valuation, and may properly be considered as one of 
 arbitration (e). 
 
 Where the By the 17th section of the Common Law Procedure Act 
 
 hfs te'en'' 1854 (17 and 18 Vict. c. 125,) it is provided that when in 
 
 (h) Re Lord, 1 K. & Jo. 90 ; see, (</) Bos v. Ilchham, L. R 2 Ex. 72. 
 
 however, Dinham v. Bradford, L. K. (c) Re HopT'Cr, L. E. 2 Q. B. 367 ; 
 
 5 Ch. Ap. 519. Re An^lo Italian Ba7il; ib. 4,'J2 ; see 
 
 (c) Collins V. Collins, 20 Beav. 306 ; too, Fickcrs v. Vidcrs, L. R. 4 Eq. 
 
 see too, Leeds v, Burroivs, 12 East, 1 ; 529, 530. 
 Lee V. Hcmingivay, 15 Q. B. 305.
 
 THE AGREEMENT. 225 
 
 any case tlie document authorizing tlio reference is, or Lf.s Chap. VI. 
 
 been, made a rule or order of any of the Superior Courts of LJ — 
 
 Law or Equity, no other of such Courts shall have jurisdic- "rcourt,^ 
 tion to entertain any motion respecting the arbitration or JP^^^^^^P^^j 
 award ; but it has been held that this provision does not the award 
 oust the jurisdiction of a Court oi Equity to entertain a suit enforced, 
 for the specific performance of the award ; although the 
 submission has been made a rule of one of the Superior 
 Courts of Common Law (g). 
 
 It is not necessary that the terms should appear on the Reference 
 
 •' to other 
 
 face of the instrument signed by the party to be charged ; docinnents 
 which, when an agreement has to be made out from coitcs- terms u ° 
 pondence, is seldom the case : it is sufficient if the instrument sufficient, 
 refer to other documents (such as conditions of sale, previous 
 letters, or, in fact, any other writings), which contain the 
 terms (h). 
 
 Such writings, however, must clearly be referred to (/) • If i-eference 
 
 25 ' ' "^ ^ ' IS clear. 
 
 and, unless their entire contents are to form part of the 
 agreement, it must distinctly appear what is, and what is 
 not, to be so included: e. g., where the signed writing 
 referred to such of the clauses contained in a specified paper 
 as had been read at a meeting between the parties, not 
 stating wJiich had been so read, it was held bad for un- 
 cei-tainty (A'). 
 
 It will be remarked (I) that in the last case, there was a ratent 
 
 ambiguity 
 
 (c/) Blackett v. Bates, 2 H. & M. Compare Peirce v. Corf, L. R. 9 Q. B. 
 
 610, reversed on appeal, but on other 210 where the documents, not being 
 
 grounds, L. R. 1 Ch. Ap. 117 ; and connected together, were held insnffi- 
 
 compare Smith v. Whitmore, 1 H. cient to constitute an agreement. 
 
 & M. 57G ; but see sect. 11 of the (i) Bojdell v. Bnimmond,, 11 East, 
 
 _^ct_ 1-12 ; Boyce v. Greene, Bat. 608 ; 
 
 (h) Clinan v. Coolce, 1 Sch. & L. Jacob v, Kirh, 2 Moo. & R. 221 ; 
 
 22, 33; Allen v. Bennett, 3 Taunt. Price v. Griffith, 1 De G. M. & G. 
 
 169 ; DoMl v. Hutchinson, 3 Ad. & 80 ; Ridr/u-ay v. Wharton, ubi siq^ra. 
 
 E. 355 ; Laythoarp v. Bryant, 2 Bing. (h) Brodie v. St. Paul, 1 Ves. jun. 
 
 N. C. 735; Blagden v. Bradbear, 12 326, 333; see 1 Sch. & L. 36; but 
 
 Ves. 471 ; Verlandcr v. Codd, Turn. see as to uncertainty where there has 
 
 & R. 357 ; Rid(jway v. Wharton, 3 been part performance, Vouillon v. 
 
 De G. M. & G. G77, 6'j7 ; 6 H. L. C. States, 2 Jur. N. S. 815. 
 
 238, and I^ord Crunworth'tj judgment, (/) See 1 Sch, & L, 36. 
 
 TOL. I, ^
 
 226 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 and defective 
 
 reference 
 
 distinguished. 
 
 Parol 
 
 evidence 
 
 admissible to 
 
 explain 
 
 imperfect 
 
 reference. 
 
 General 
 reference 
 to other 
 instrument 
 sufficient. 
 
 defect patent on the face of the agreement : the agreement 
 itself, according to its own grammatical construction, raised 
 the question as to which of the clauses were intended : but, 
 in the case of a mere imperfect reference to another in- 
 strument, parol evidence is admissible to ascertain its 
 identity {in) ; so, parol evidence is admissible to explain 
 the sense in which words, in themselves unintelligible, 
 were used by the parties (7^) ; or the peculiar meaning 
 which local, professional, or trade usage has attached to 
 particular expressions {0) ; or to prove the existence, at 
 the date of the agreement, of facts material to its con- 
 struction (^). 
 
 And it appears that,, at least in the case of letters, there 
 need not be any sj)ecific description of, nor even an express 
 reference to, the prior documents ; it will be sufficient if the 
 Court be clearly satisfied that a reference was in fact in- 
 tended, and of the identity of the instrument. 
 
 For instance, where {q) A., the owner of W. farm, on the 
 5th July wrote a note in the third person to B., informing 
 him that C. had made an offer for the farm, at a specified 
 price, but that, if B. chose to have it at that price, C would 
 decline the purchase in his favour ; B., it was alleged, wrote 
 a note in reply, accepting the ofler, but such note was not 
 forthcoming : on the 11th July A. wrote to B., "I have just 
 received yours ; and am glad you have determined to pur- 
 chase the W. farm : I will write to C. to inform him you 
 have agreed to purchase the estate;" — Sir William Grant, 
 relying on the words "determine" and "agree," as denoting 
 an acceptance by B. of a previous proposal by A., instead 
 of, as might have been the case, an independent offer by B., 
 considered that the letter of the 11th was sufficiently con- 
 
 (ni) See Clinan v. Cool-e, 1 Sch. & 
 L. 33 ; Saunderson v. Jackson, 2 Boa. 
 & P 238 ; and see Jackson v. OglancUr, 
 2 H & M. 465, 472 ; Bolclcow v. Sey- 
 mour, 17 C. B. N. S. 107 ; Ridgway 
 V. Wharton, 6 H. L. Ca, 238 ; 27 L. 
 J, Ch. 46. 
 
 (n) S^L'eet v. Lee, 3 Mann. & Gr. 
 452. 
 
 (o) Vide iufrcl, Ch. XVII. 
 
 (p) Monro v, Taylor, 8 Ha. 56. 
 
 ( q) Western v. Russell, 3 Ves, & B, 
 187,
 
 THE AGREEMENT. 227 
 
 nected with the note of tlic 5tli, to sliow that A. agreed to Chap. VI. 
 
 sell upon the terms of that note : and S2:)ecific performance ' 
 
 was decreed accordingly. 
 
 So, upon a sale of goods, a sul)secj_ucnt letter written by 
 the purchaser, and containing the following expressions, 
 " The tobacco I want immediately forwarded ; I likewise 
 want the invoice of the rice and other tobacco," was held to 
 be sufficiently connected with the j)revious entries of sale of 
 the articles in the vendor's order book (r). 
 
 So, a letter from the purchaser's solicitor to the vendor's 
 solicitor, merely headed with the names of their respective 
 clients, and undertaking personally to settle the purchase in 
 two months, if that would be satisfactory, has been held to 
 be a contract binding the solicitor (s). 
 
 But where the plaintiff in a bill for the specific per- 
 formance of an alleged parol contract to take a lease of a 
 house relied on a letter written by the defendant, in which 
 the latter agreed to take the house for seven years on 
 specified terms, but did not fix any date for the com- 
 mencement of the lease, and on another letter Avritten by 
 the defendant, in which the date of commencement Avas 
 supplied and further terms were added to which the 
 plaintifi" did not agree, it was held that there was no 
 memorandum sufiicient to satisfy the Statute (f). 
 
 So, also, a reference in a signed document to " the agree- 
 ment which your client alleges he lias entered into " has 
 
 ()•) Allen V. Bennett, 3 Tamit. 1G9 ; ^^'■'ocl- v. Dclai/, 4 El. & B. 6G0 ; 
 
 and see Morgan v. Ilolford, 1 Sm. Warner v. WilUnrjton, 3 Drew. 523 ; 
 
 & G. 101 ; anil compare Pdrce v. Wood v. Scarth, 2 K. & Jo. 33 ; 
 
 Corf, L. R. 9, Q. B. 210 ; and as to Baumann v. James, L. R. 3 Ch. Ap. 
 
 connecting one letter with another, 508 ; but see Skelton v. Cole, 1 De G. 
 
 although there is no express reference, &■ Jo- 5S7. 
 
 Verlander v. Codd, Turn. & E. 352 ; («) Poivcrs v. Fowler, 4 El. & B. 
 
 Greene v. Cramer, 2 Con. & L. 54 ; 511. 
 
 Skinner v. M'Bouall, 2 De G. & S. (0 NcsJiam v. Sclby, E. E. 13 E(i. 
 
 265 ; Hamilton v. Terry, 11 C. B. 191 ; affd. L. E. 7 Ch. Ap. 40G. 
 954 ; Fijson v. Kitson, 3 C. E. E. 705 ;
 
 228 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 been held insufficient (?t) ; so, too, a letter signed by the 
 party to be charged, and containing the following passage, 
 " Previously to paying the amount (then followed an illegible 
 word) for tithes and glebe, it would be advisable to have 
 some information as to title." 
 
 Tests of 
 sufficiency 
 in c.ises of 
 correspond- 
 ence. 
 
 In cases of correspondence the difficulty generally is, to 
 determine whether there has been a concluded agreement or 
 merely a treaty (.r) ; as to Avliich the following rule seems 
 deduciljlo from the authorities. 
 
 It mnst 
 contain a 
 clear acces - 
 sion by both 
 parties to the 
 same terms. 
 
 If the original offer leave nothins: uncertain on the face of 
 it (//), and be met by a simple acceptance, the treaty is, of 
 coiu'se, concluded ; but if the original offi^r leave anything 
 to be settled by future arrangement, it is merely a proposal 
 to enter into an agreement (z) : so if the reply be either 
 more or less than a simple acceptance, the variation must be 
 acceded to by the origmal proposer ; or there is no agree- 
 ment (a) : and this state of things wiU continue, until there 
 is, upon the face of the correspondence, " a clear accession on 
 both sides to one and the same set of terms " (6). 
 
 Where on Where, however, there is a simple acceptance of an offijr 
 
 BIIHIjIg 
 
 acceptance, to purchase, accompanied by a statement that the acceptor 
 
 af^°eeinent is desires that the arrangement should be put into some more 
 
 reriuired. formal torms, the mere reference to such a proposal will not 
 
 (u) Jackson v. Ojlander, 2 H. & jNI. 
 465. See, too, Skclton v. Cole, 1 De 
 G. & Jo. 587, and suj^rd, p. 218, 
 
 (x) See Huddlcston v. Briscoe, 11 
 Ves. 583, 591 ; Stratford v. Bosworth, 
 2 Ves. & B. 341, 345 ; 0<jilvle v, Fol- 
 jambe, 3 Mer. 53 ; Archer v. Baynes, 
 
 5 Exch. 625. 
 
 (y) Uoneyman v, Marryat, 1 Jur, 
 N. S. 857 ; 21 Beav. 14 ; 6 H. L. C. 
 112. 
 
 (z) Chinnoch v. Marchioness of Ely, 
 
 6 N. E. 1, reversing V, C. Wood, 2 H. 
 & M. 220 ; liummens v. Robins, 3 De 
 G. Jo. & S. 88 ; Wood v. Midglcy, 5 De 
 G. M, & G, 41. 
 
 (a) Holland v. Eyre, 2 Sim. & S. 
 194 ; Smith v, Surmaii, 9 B, & C, 
 569; Heyward v. Barnes, 23 L. T. 
 68. 
 
 {h) 1 Coll. 312 ,• and see Cowley v. 
 Watts, 17 Jur. 172 ; Cheveky v. Fuller 
 13 C. B. 122 ; and as to an imma- 
 terial addition to an acceptance, Glive 
 V. Beaumont, 1 De G. & S. 397 ; 
 Oihhins V. North East Metropolitan 
 Asylum District, 11 Beav. 1. As to a 
 special acceptance required by the 
 term.s of the original offer, see Boys v. 
 Ayerst, 6 Madd. 316 ; Taylor v. Port- 
 inyton, 1 Jur. N. S. 1057 ; 7 De G. M. 
 6c G. 328,
 
 THE AGREEMENT. 229 
 
 prevent the Court from enforcing the iinal agreement so Chap. vi. 
 arrived at (c). But if the stipulation as to a formal contract . LJ — 
 
 is a term of the assent, leaving it open to the acceptor or 
 his solicitor to qualify the assent by special conditions, then 
 until those conditions are accepted, there is no final agree- 
 ment, such as the Coru-t will enforce. Thus, Avhere the 
 vendors of land, in a letter acknowledging the receipt of an 
 offer to purchase, wrote as follows to the intending pur- 
 chasers, " Which offer we accept, and now hand you two 
 copies of conditions of sale which we have signed. We will 
 thank you to sign same and return one of the copies to us," 
 and the conditions were of a special character, which the pur- 
 chasers refused to assent to, it was held that the acceptance 
 was simply conditional, and a demurrer to the vendors' bill 
 for specific performance was allowed (d). So where an 
 intending lessee, in reply to a letter from house-agents 
 furnishing particulars and terms of two residences, wrote, 
 " I have decided on letting No. 22, Belgrave-road, and have 
 spoken to my agent, Mr. C, of, Szc, who will arrange matters 
 with you, if you will put yourselves in communication 
 with him ; " it was held that there was no contract (e). 
 
 An offer in writing may be accepted by parol, or b}^ the A written 
 acts of the other party ; and if the proposal in ^^Titing is accepted by 
 signed by the party to bo charged, and there is a parol P^™^ 
 acceptance by the party to whom it is made, there is a suffi- 
 cient memorandum within the 4th section of tlie Statute 
 of Frauds (/). 
 
 It has been held that conditions of sale used at the putting Conditions 
 up of an estate by auction, cannot be considered as impliedly whether 
 incorporated with an unconditional offer by letter to purchase ;i"riiediy 
 
 ■i k/ i. incorporated 
 
 the property, subsequently made by a person who attended in contract. 
 
 (c) Per Sir G. Jessel, M. E. in 264, 288, 30G. 
 Crosdey v. Maijcod; L. E. 18 Eq. 180, (e) Stank;/ v. DotnksxocU, L. R. 10 
 
 181 ; and see judgment of Lord West- C. P. 102. 
 
 bury in ChlnnocJc v. Marchioness of (/) lieitss v. Piclsk;/, L. ]J. 1 Ex. 
 
 Ehj, 6 N. R. 3. 342 ; and see Warner v. WiUhif/ton, 3 
 
 {d) Crossic;/ v. Maycoch, L. R. 18 Ec^. Drew. .^)23; Beneclxy. C/iadu-ick,iY<J'.'R, 
 
 180 ; and see cases cited in note (3) ; 687; IlorsfaUv. Gamett, 6 W. 11. 387. 
 ^nd Rklfjv:ay v. Wharton, 6 H. L. C,
 
 230 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 3. 
 
 tliG auction {g) ; but the case is difiorent, for tlio purpose of 
 defence in Equity, where the parol negotiation has proceeded 
 upon the footing of the condition.? (A). 
 
 Effect of 
 
 conditional 
 
 acceptance. 
 
 Offer may 
 be with- 
 drawn before 
 acceptance. 
 
 If rejected, 
 &c., it ceases 
 to be bind- 
 ing. 
 
 INIiist be 
 jicceptcd 
 
 Whore the defendant wrote at the foot of an agreement 
 for an underlease, " I have no objection to this agreement 
 supposing tliat there is nothing unusual in Sir R.'s (the 
 ground landlord) leases, which I presume there is not ; " and 
 then, before the agreement with this variation has been 
 acceded to by the other party, withdrew his offer ; and it 
 was contended that, inasmuch as the covenants were usual, 
 he still remained bound ; Sir J. Wigram, V.-C, admitting 
 that a case might exist in which the distinction between the 
 original and altered agreement must be treated as plainly 
 nugatory, held, that the case before him could not be con- 
 sidered as of that character, merely because the Court 
 might, upon argument, decide tliat the covenants were not 
 unusual (i). 
 
 For, it may be observed, that an original offer, or, it is con- 
 ceived, any subsequent proposal which does not amount to a 
 simple acceptance of the terms of the other party, may be 
 withdrawn or varied (/j) at any time before it is accepted ; 
 even although a time be named for its acceptance (l) : and it 
 is revoked by the death or bankruptcy of the proposer before 
 acceptance {m) : and that if rejected, either by an express 
 refusal, whether written or verbal {n), or a proposed variation 
 either as to time for giving possession, or price, or payment of 
 deposit, or it is conceived, in any other particular, it at once 
 ceases to be binding (o) : and the acceptance of an offer must 
 
 (g) Coxokij V. Watts, 17 Jur. 172. 
 
 (A) See Orjih'ic v. Foljamhe, 3 Mer. 
 53. 
 
 (i) Lucas V. James, 7 Ha. 410 ; see 
 cases referred to in note ih) ; Warner 
 V. Willington, 3 Drew. 523 ; Smith v. 
 Ncalc, 2 C. B. N. S. 67. 
 
 (i) Honey man v. Marryat, 1 Jur., 
 N. S. 857 ; 21 Beav. 14 ; 6 H. L. Ca. 
 112 ; ChinnocJc v. Mar cli ion ess of Ely, 
 6 N. R. 1. 
 
 (I) Routlcehjc V. Grant, 4 Bing. 
 653 ; Martin v. Mitchell, 2 Jac. & 
 W. 428 ; Lucas v. James, 7 Ha. 410. 
 
 (m) Meyncll v. Surtces, 1 Jur. N. S. 
 737. 
 
 {n) Sheffield Canal Co. v. Sheffield 
 and JRotherham R. Co., 3 Rail. C. 121, 
 11.; Iloncyman v. Marryat, uhi siqjrd, 
 
 (o) RoutUdgeY. Grant, 4 Bing. 653 ; 
 Hyde v. Wrench, 3 Beav. 334 ; Thorn- 
 hury V. Bevil, 1 Y. & C. C. C. 554.
 
 THE AGREEMENT. 231 
 
 be given within a reasonable time {i)) : if, however, a person Chap. vi. 
 make an offer by post, lie cannot retract it, if the other party, 
 
 before receiving any notice of withdrawal, return an imme- ^ILonable 
 diate acceptance {q). 
 
 time. 
 
 AlthouMi where an am-eemcnt is simied animo contrahendi, ^f^*^^ cyMence 
 parol evidence is not admissible to vary its terms, yet such prove that the 
 
 •*■ , . agreement 
 
 evidence may be admitted to show that the signature was was con- 
 merely conditional, and that the agreement Avas intended to ^^^^"'^ " 
 operate only on the happening of certain contingencies (r). 
 
 A writing which is signed by either party, and is perfect Meraorandum 
 as respects the terms of the contract, will not be considered although 
 otherwise than final from the mere fact of its having, with •^g^j.^^ctions 
 the consent of the other party, been sent to a solicitor as for formal 
 
 '- '' . agreement. 
 
 instructions for the preparation of a more formal instru- 
 ment (s). 
 
 Any error, obviously clerical, in an agreement, will be Clerical 
 
 J ' J ' <=> error. 
 
 corrected by the Courts {t). 
 
 (4.) As to the signature. Section 4. 
 
 It has been long settled that a party signing an agreement gjg^atuie. 
 is j)r'imd facie bound by it, although it be not signed by the Signature 
 
 other party {v) ; but if only one be bound, he may, it would cha?gecf 
 
 sufficient. 
 
 0-) Kennedy v. Lcc, 3 Mer. 454 ; v. Jnffrcnj, 2 Sch. & Lef. 374 ; and 
 
 Thornhury v. Bcril, 1 Y. & C. C. C. see judgment in Crosslcy v. Mai/corl; 
 
 554,563; Williams v. Williams, 17 I^.n.lSEti. ISO; Bidgv:a7jv.Wharton, 
 
 Beav. 213 ; and see Foircn v. Foiv- 6 H. L. C. 288, 264, 288, 306. 
 
 ler, in error, 4 El. & B. 519 ; Meyncll (t) See Wilson v. Wilson, 5 H. L. 
 
 V. Surtees, 1 Jur. N. S. 737. C. 40 ; Hart v. Tulk, 2 De G. M. & 
 
 ( q) See Bunlop v. lliggins, 1 H. G. 300. 
 
 L. C. 400 ; Potter v. Sanders, 6 (m) Scton v. ,'^l<ide, 7 Ves. 265 ; 2 
 
 Ha. 1. Wh. & Tud. L. C. 429 ; Lord Ormond 
 
 (r) Pym v. Campbell, 2 Jnr. N. v. yl ncto'son, 2 Ba. & B. 371 ; Ficldv. 
 
 S. 641 ; 6 El. & Bl. 370 ; Wake v. Boland, 1 Dru. & Wal. 37 ; Sag. 129; 
 
 Ilarrop, 7 Jur. N. S. 710. Laythoarp v. Bryant, 2 Bing. N. G. 
 
 (.s) Foidc V. Freeman, 9 Yes. 351 ; 735; Fouie v. Freeman, 9 Yes. 354 ; 
 
 Morgan v. Holford, 1 Sm. & G. 101. Weston v. Russell, 3 Ves. & B. 1S7, 
 
 See Gilhins v. N. E. Metropolitan 192 ; Owen v. Thomas, 3 Myl. & K. 
 
 District Asylum, 11 Beav. 1; Card 353; ?V"'= C h. XVIII.
 
 232 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 4. 
 
 Other party 
 must elect. 
 
 What 
 
 signature 
 
 sufficient. 
 
 appear, require the other to signify in wi'iting his assent to or 
 dissent from the contract ; and unless this be acceded to, he 
 may himself rescind it (x). 
 
 A signature printed, or stamped, instead of written, or by 
 initials, may be binding (y) ; but a mere description, although 
 it satisfactorily identify the party, e.g., "your affectionate 
 mother," subscribed to a letter addressed to the son, with his 
 name and address in full, has been held insufficient (0). 
 
 Sig'uatiire to 
 instructions 
 for telefrram. 
 
 In a late case, where there was a written offer to purchase 
 to which the vendor replied by telegi'am " your offer for the 
 L. estate is accepted," it was considered by the Court, though 
 it was not necessary to decide the point, that the signature 
 of the vendor to the instructions for the telegram was a 
 sufficient signature within the statute (a). 
 
 In pencil. And it appears that an agreement is not the less binding 
 
 l3y reason of the alterations and signature being in pencil 
 instead of ink (6). 
 
 The Ecclesiastical Courts have held a signature to a will by 
 woman, twice married and then under 
 surname of her first husband, sufficient (c). 
 
 By married 
 
 ■woman in . • t i i t • i 
 
 surname of a womau, twicc mamcd and then under covei"ture, ni the 
 
 deceased 
 husband. 
 
 Signature 
 by agent. 
 
 And a signature in the name of an agent will bind the 
 principal if the agency be established (cZ) ; and the alleged 
 agent might, even before the late Evidence Act (e), be exa- 
 mined either to prove (/) or disprove the agency ; but if his 
 
 (.c) 2 Jac. & W. 428 ; see Lord Or- 
 viond V. Andej'son, 2 Ba. & B. 371 ; 
 and Williams v. WilUams, 17 Bear. 
 213, 216. 
 
 (y) Saundej'son v. Jtickson, 2 B. & 
 P. 238 ; Schneider v. Norris, 2 M. & 
 S. 286 ; Phillimore v. Barry, 1 Camp. 
 513 ; Sweet v. Lee, 3 Mann. & Gr. 452 ; 
 and see Blore v. Sutton, 3 Mer. 245. 
 
 (2) Selby V. Sclby, 3 Mer. 2; and 
 see Skelton v. Cole, 1 De G. & J. 
 587. 
 
 (a) Godwin v. Fraytcis, L. R. 5 C. P. 
 295. 
 
 (i) Lucas V. James, 7 Ha. 410 ; 
 Gear// v. J'hi/sic, 5 B. & C. 234. 
 
 {r) In the goods of S. Glover, 11 
 Jur. 1022. 
 
 [d) White V. Proctor, 4 Taunt. 209 ; 
 Kemvorth]/ v. Schojtcld, 2 B. & C 
 945. 
 
 (e) 14 & 15 Vict. c. 99. 
 
 (/) See Marston v. Roe, 2 Nev. ?; 
 P. 519 J 8 Ad. &E. 30.
 
 THE AGREEMENT. 233 
 
 evidence go to impeach the validity of the authority under Chap. vi. 
 which he has professed to act, it will he received Avith the Lu — . 
 
 most anxious jealousy (g). 
 
 The sijmature to formal agreements, is of course, usually Signature 
 
 . not neces- 
 
 found at the end of the document ; but the Statute requn-es sarily placed 
 
 only a signing, and not a suhscrihing ; and the signature may, a^egment. 
 
 as in the case of a letter or agreement in the third person, be 
 
 inserted in the beginning or any other part of the instrument, 
 
 if inserted so as, in efiect, to authenticate the entire document, 
 
 and not to be exclusively applicable to particular portions (h) ; 
 
 or, in other words, if it be so placed as to show that it was 
 
 intended to relate to, and that it does, in fact, relate to every 
 
 part of the instrument (i) ; and this according to some autho- 1^^^?^ o^ 
 
 r ^ ' ' '^ _ _ leaving 
 
 rities, although, in the case of an agreement in the third blank for 
 person, a place be left for signature at the bottom, in the ^^^^ ^^"^^" 
 usual way (k) : however, in a case, where the agree- 
 ment contained the names of the parties in the commence- 
 ment, and concluded with the word, " as witness our hands," 
 without being followed by any name or signature, the Court 
 took a more common-sense view of the question, and held 
 that there was no sufticient signature (I); so where A., inten- 
 ding to marry B., Avi'ote a paper commencing thus, " In the Where the 
 event of a marriage between the undermentioned parties, the inserted in 
 following conditions, as a basis for a marriage settlement, are *J^ a°ree-*^^ 
 mutually agreed upon ; " and then followed the terms of a ment. 
 proposed settlement, but the name of neither party Avas 
 signed to the memorandum, it was rightly held that A.'s 
 name, occurring in particular portions of the instrument, 
 could not, by force of the words " undermentioned parties" 
 be fastened on to the introductory Avords, so as to constitute 
 
 (g) Howard V. Braitliwaite, 1 Yea. & 574; StoJccs v. Moore, 1 Cox 219; 
 
 B. 202, 209. Sug. 135. 
 
 {h) Savndcrson v. Jarlsou, 2 Bos. & (0 Per Lord Westbury, in Caton v. 
 
 P. 238 ; Morison v. Tumour, 18 Caton, L. R. 2 E. & Ir. Ap. 143. 
 
 Ves. 175 ; Western v. Russell, 3 A^es. & {k) SauJidcrson v. Jackson, 2 Bos. & 
 
 B. 187 ; O'jihic v. Foljambe, 3 P. 239. 
 
 Mer. 53 ; Propcrt v. Parker, 1 lluss. & (/) Hubert v. Trehcrne, 3 Mann. & 
 
 M. 625 ; BhnUey v. ^mith, 11 G. 743 ; Hulcrt v. Turner, 4 Sc. 
 
 Sim. 150 ; Lohh v. Skmky, 5 Q. B. N. R. 486,
 
 234 
 
 THE AGREEMENT. 
 
 Chap. VI, 
 Sect. 4. 
 
 ca sufficient signature (776). The pureliaser's signature on the 
 hack of the printed particulars (n), or in a column left blank 
 in them for that purpose, may be sufficient (o). 
 
 Party bound 
 Ly signatvire 
 as witness : 
 
 but not as 
 attesting 
 
 witness. 
 
 And although a principal or his agent sign merely as a 
 Avitness, he may be bound, if the signature amount to an 
 acknowledgment of the existence of the agreement ; e. g., 
 " witness A. B." (p) : but where a person, whose formal sig- 
 nature would have bound the vendor, merely attested the 
 execution of the agreement by the purchaser, this was held 
 to be insufficient (q). 
 
 Approval of 
 cb-alt agree- 
 ment or 
 conveyance, 
 whether 
 sufficient. 
 
 The written approval by a professional agent, of a draft 
 agreement, or of the draft conveyance which recites the agi-ee- 
 ment, will, it would seem, be insufficient (r), the signing being 
 alio intuitu; this, however, was much questioned in a modem 
 case (s), v»diich was eventually decided on a collateral point : 
 but in a later case, the written approval of the draft convey- 
 ance by the professional agent, was held insufficient, there 
 being no proof that he had his client's authority to sign an 
 agreement (t) : the effect of a similar approval of a draft 
 agreement by one of the parties, is more doubtful (u) : it was 
 held sufficient in a modern case, in which, however, the 
 earlier authorities do not appear to have been cited {x). The 
 circumstances of the party signing such approval being in the 
 
 On) Caton v. Caton, L. IJ. 1 C'h. Ap. 
 137. 
 
 ( n ) See and consider IIod{/son v. 
 Le Bret, 1 Camp. 233 ; Phillimorc 
 V. Barry, ibid. 518 ; and as to bought 
 and sold goods, Goom v. Aflalo, 6 
 B. & C. 117 ; and Siveurirjlit v. 
 Archibald, 15 Jur. 947, Q. B. ; 20 
 L. J. 529, where the earlier cases are 
 reviewed. 
 
 (o) Emmcrson v. Hcelis, 2 Taunt. 38. 
 
 0)) }Vclford V. Beazley, 3 Atk. 504 ; 
 S. C, 1 Ves. S. 7 ; 9 Ves. 234, 251 ; 
 see Symons v. Symons, G Madd. 207. 
 
 (q) Goshcll V. Archer, 2 Ad. & E. 
 500. As to whether attesting the 
 execution of a deed is itself notice, 
 
 see Sug. 780, 781. 
 
 ()•) See Sug. 140 ; Lady Thynne v. 
 EurJ of Gknrjall, 2 H. L. C. 131 ; Lord 
 Toicnshcnd v. Bishop of Noi-wich, 1 
 Eop. H. & AV. by Jac. :;08,n. ; Jack- 
 son V. OgJander, 2 H. & M. 472. 
 
 {s) Thornbury v. Bcvill, 1 Y. & C. 
 C. C. 554 ; and see Card v. Jaffray 
 2 Sch. & Lef. 374. 
 
 (t) Forstcr v. Rowland, 7 Jui\ N. S. 
 998 ; 7 H. & N. 103. 
 
 («) See Sug. 141 ; Doc v. Pedyriph, 
 4 Car. & P. 312 ; Parker v. Smith, 1 
 Coll. COS ; and compare Shippcy v. 
 Dcrrtson, 5 Esp. 190. 
 
 (r) Folirjno v. Martin, 22 L. J. Ch. 
 502, M. K
 
 THE AGREEMENT. 235 
 
 le-'-al profession would, it is conceived, be unfavourable to the Chap. VI. 
 
 o i Sect 4 
 
 sufficiency of the signature. The alteration of the draft U — 
 
 conveyance by one of the parties has been held insufficient : 
 upon the case {y) as reported, it does not appear that the 
 alterations comprised the name of the party making them ; 
 and the only ground for contending for the sufficiency of the 
 instrument would be, that, by making the alteration, he had 
 adopted such part of the draft, including the name, as he had 
 left unaltered. In Itltd v. Potter (z), there was a similar 
 decision, where the entire conveyance had been written by 
 the defendant ; but it does not appear whether the convey- 
 ance recited the agreement, although such, probably, was the 
 case. Where the draft of a lease had, in pursuance of a parol 
 agreement, been forwarded to the intended lessee for perusal, 
 and he indorsed and signed a memorandum upon it, rec^uest- 
 ing the lessor to endeavour to relet the premises, as it would 
 be inconvenient for him (the lessee) to perform his agreement, 
 this was held to be sufficient {a). 
 
 A contract by a corporation aggregate, must, as a general ^'^''^{"f'^ 
 rule (6), be under their common seal (c) : but, Ijy the Com- companies, 
 panics Clauses Consolidation Act, 1845, any contract entered 
 into on behalf of a company coming within the provisions of 
 the Act, and which, if made between private persons, would 
 require to be in writing, and to be signed by the parties to 
 be charged therewith, may be made, varied, or discharged in 
 writing, signed by any two of the directors {d) : and the 
 
 (y) llmcUns v. Holmes, 1 P. Wins. R. Co., 5 Exch. 442 ; IlomersJiam v. 
 
 770 ; and see Stoics v. 3Ioorc 1 Cox, Wolverhampton Waterworks Co., 6 
 
 219. Exch. 137; Jackson v. N. Wales R 
 
 (z) 1 P. Wms. 771. Co., 1 H. & Tw. 75 ; Mayor, cCr., of 
 
 (a) Shippey v. Derrison, 5 Esp. Kidderminster v. Ilardwick, L. K. 9 
 
 190_ Q. B. 13; Austin v. Guardians of 
 
 (6) Ordinary business contracts by Bcthnul Green, L. E. 9 C. P. 91. 
 trading coi-porations form an excep- {d) 8 Vict. c. 16, s. 97; see Zou-c 
 
 tion from the rule. Henderson v. Aus- v. London and N W. R. Co., 21 L. J., 
 
 tralian R. M. S. N. Co., 3 C. L. 11. Q- B. 361. See 19 & 20 Vict. c. 47, 
 
 1I8I_ sect. 4 1 ; and see now as to companies 
 
 (r) See Corp. of Ludlow v. Charlton, under the Companies Act, 1862 ; 30 & 
 
 6 M. & "W. 815 ; Cope v. Thames 31 Vict. c. 131, sect. 37 ; and vide 
 
 Haven Co., 3 Exch. 841 ; 6 Rail. C. snprd, p. 175. 
 83 ; Diggh v. London and Blackwall
 
 236 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 4, 
 
 same rules which apply to an original contract apply to any 
 variation or alteration of it (e). In cases which fall within 
 the general rule, the omission of the common seal precludes 
 the company, while the contract is still executoiy, from 
 suing, as it relieves them from being sued, upon it (/) : but 
 where there has been part perfomiance, in which the com- 
 pany have acquiesced, an unsealed contract may in Equity 
 be enforced against them {g) ; and even at Law, the absence 
 of a sealed contract will not prevent the company from 
 being sued, if they have accepted and adopted it (Ji). 
 
 Alteration 
 or correction 
 of agree- 
 ment. 
 
 We may here observe, that any alteration made by either 
 party in a material part of a written contract, without the 
 consent of the other party, destroys the lights under the 
 contract of the party making the alteration {i) : Ijut an 
 alteration made with consent is binding; and although it 
 is prudent and usual to authenticate the alterations by a 
 marginal signature, either in full name or by initials, this 
 precaution seems to be not absolutely necessary : in fact 
 it has been held that a memorandum wi-itten across the 
 face of the signed agreement, and correcting an error in 
 one of its terms, binds the AATiter although he do not sign 
 it ; and that the agreement thus corrected is valid under the 
 Statute of Frauds (]<:). 
 
 Section 5. 
 
 (5.) As to the stamps. 
 
 ttlmvV^ The agreement, if under seal, is a deed, and chargeable 
 
 As to stamps vrith duty as such (/) : if not under seal, and if the subject- 
 
 on agree- 
 ments. 
 
 (e) Williams v. Chester fl«t? Jfoli/- 
 hcad B. Co., 15 Jm-. 828, Exch. 
 
 (/) Governor of Cojiper Miners v. 
 Fox, 16 Q. B. 229. 
 
 (</) Crook V. Coi-poi'dtion of Sea ford, 
 L. E. 10 Eq. 678 ; a£Ed. on this point, 
 L. E. 6 Ch. Ap. 551. 
 
 (A) Clarke v. Cuclfiekl Union, 21 
 L. J., Q. B. 349 ; Nicholson v. Brad- 
 Held Union,!.. K. 1 Q. B. 620; see, too, 
 FLev.tcr v. The Electric Telegraph Co., 
 2 Jur. N. S. 1245; and see supra, 
 
 p. 175, -nhere the cases are more fully 
 considered. 
 
 ( Potvcll T. Fivctt, 15 East, 29 
 Davidson v. Cooper, 13 M. & W.343 
 Mollett V. Wackerbarth, 5 C. B. 181 
 as to the effect of fiUing up the 
 blanks in a deed after execution by 
 one of the parties, see A dsetts v. Hives, 
 33 Beav. 52. 
 
 (/.•) Bluck V. Gomjpert:, 7 Exch. 862. 
 
 (/) See Folinson v. Dryhorovrjh, 6 
 T. E. 317.
 
 THE AGREEMENT. 237 
 
 matter do not appear to he of the value of £o (rn), no duty Chap, vi. 
 
 Sect. 5. 
 
 is payable ; and if, on a sale by auction, the same pci'son 
 buy several lots, a distinct contract arises for each lot ; and 
 whatever may be the aggregate amount, no stamp is re- 
 quired for any lot which separately sells for less than £o (n). 
 Supposing the purchase-money to exceed £5, a Gd. stamp 
 only is payable (o) ; this may, without payment of a penalty, 
 bo affixed Avithin fourteen days after execution ; after that 
 time a £10 penalty becomes payable (j:*). The duty may 
 be denoted by an adhesive stamp, which is to be cancelled 
 by the person by whom the agreement is first executed (q). 
 
 A contract by the assignees of a bankrupt for the sale of Cases of 
 his real estate, ^exempt from stamp duty (r) ; as, also, are ^^^"^P ^'"^' 
 agreements under the Acts for promoting the residences of 
 the Parocliial Clergy, the Church Building, Poor Law, Tithe 
 Commutation, and Commons Inclosure Acts, and agreements 
 entered into by the Commissioners of Woods and Forests (s). 
 Whether a receipt for purchase-money, unless duly stamped 
 as such, is admissible as evidence of the contract, has been 
 the subject of conflicting decisions (t). 
 
 There must, in gencnxl, be distinct stamps for each distinct Several 
 
 , / / ; 1 • • • 1 1 stamps when 
 
 agreement or contract : upon this principle, where a person requisite. 
 purchases several lots at an auction, the agreement must 
 bear a stamp in respect of each lot for which the purchase- 
 money exceeds £5 (u). Upon a purchase from persons 
 
 (m) See Lkldiard v. Gale, 4 Exch. Vict. c. 106, s. 138 ; and now 32 & 33 
 
 81G, and 33 & U Vict., c. 97, Sched. Vict. c. 71, s. 113. 
 
 ( n ) Emmerson v. Ileelis, 2 Taiiut. («) See Tilsley on Stamps, 759 to 
 
 38 ; Fiootsv. Lord Dormer, 4 B. & Ad. 762, 1st. edit. 
 
 77 ; see, as to goods, Ijig;/s v. Wisklnff, (t) Evans v. Prothero, 2 Mac. & G. 
 
 2 C. L. E. 705. 319 ; S. C, contra, 1 De G. M. & G. 
 
 (o) 33 & 84 Vict. c. 97 ; compare 572 j see 24 Beav. 41 ; and see and 
 
 23 Vict., c. 15., under which there consider Diploch v. Hammond, 5 Do 
 
 was a further progressive duty for G. M. & G. 320. 
 
 every entire quantity of 1,030 words (m) See/rt»ies v. <S/iore, 1 Stark. N. P. 
 
 above the first 2,160. C. 426 ; WatUn;/ v. Iloruvod, 12 Jur. 
 
 (p) See 33 & 34 Vict. 97, s. 15. 48. Butaleaseisnotaubjecttoanagree- 
 
 (q) 33 & 34 Vict., c. 97, s. '66. ment stamp, in respect of it, reservinfj 
 
 (>•) Flathcr v. Stuhbs, 6 Jur. 102 ; an option of purchase to the lessee • 
 
 see 6 Geo. IV. c. 16, s. 98 ; 12 & 13 Worthinybm v. ]\'arria(/ton, ^ C.B.635.
 
 238 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 
 Sect. r,. 
 
 Loss of un- 
 stamped 
 agretmeiit, 
 effect of. 
 
 Instrument 
 recording 
 transfer of 
 property is 
 liable to 
 duty as a 
 conveyance. 
 
 having separate interests in an estate (e. g., tenants in 
 common, or tenant for life and remainderman), the agree- 
 ment, if so worded as to be a contract for the entire estate, 
 would seem to be subject only to single duty ; but if, on the 
 contrary, it were so worded as to amount to separate con- 
 tracts with the several vendors for their separate interests 
 in the property, so as to give to each vendor a right to 
 enforce the agreement in respect of his own particular 
 interest, it is conceived that separate stamps would be 
 requisite. 
 
 If the agreement be not stamped, and be subsequently 
 lost, or even destroyed by the fraudulent act of the party 
 chargeable thereon, a Court of Equity can give no relief 
 unless the plaintiff can procure a copy ; the defendant, if he 
 have a copy, will be ordered to produce it for the purpose of 
 its being stamped {x) ; and it appears, that a copy may be 
 made from recollection, if the witnesses can swear to the 
 precise terms, and not merely the general tenor of the 
 instrument (y) : and the Courts will, in the absence of 
 circumstances inducing a supposition to the contraiy, pre- 
 sume that a lost instrument was duly stamped (s) ; or that 
 obliterated stamps were of the right amount (a) : and they 
 have now power (6) to admit unstamped or insufficiently 
 stamped instruments in evidence upon payment in Court 
 of the deficient stamp duty, a penalty of £10, and a further 
 sum of £1. And if the agreement is admitted by the 
 answer, the want of a stamp is immaterial (c). 
 
 It has been held by the Court of Exchequer, that any 
 instrument operating as a record of the transfer of property, 
 (not being goods, wares, or merchandise), c. g., a memorandum 
 that A. has sold all the goods ?indjicctwres in a certain shop, 
 
 (x) See Fou-Ic v. Freeman, Sug. 144 ; 
 Bousfield V. Godfrey, 5 Bing. 418 ; 
 Blair v. Ormond, 1 De G. & S. 428. 
 
 ((/) Smith V. Jlenley, 1 Ph. 391. 
 
 (z) See cases referred to in last two 
 notes, and JIart v. Ilai-t, 1 Ha, 1 ; 
 Crcndlur v. Solomons, G C. B. 758 ; 
 
 Closmadeuc v. Carrel, 18 C. B. 36 ; 2 
 Jur. N. S. 474. 
 
 (a) Doe V. Coombs, 6 Jur. 930, Q. B. 
 
 (6) 33 & 34 Vict. c. 97, s. 16. 
 
 (c) Huddlcston v. Briscoe, 11 Ve3. 
 583.
 
 THE AGREEMENT. 239 
 
 is a conveyancG Avitliin the meaning of the Stamp Laws, and Chap. yi. 
 must bear the ad valorem duty {d). U — 
 
 We may here remark, that an agreement in evasion of the Agreement 
 
 in evasion of 
 
 Stamp Laws, e. <j., that the document shall, for the present, ^leVtamp 
 remain unstamped, but that, if it shall become necessary to ^^'^'^ ^'"^*^- 
 stamp it, one of the parties thereto will pay the penalty, 
 cannot be enforced (c). 
 
 (G). As to illegal agreements. Section 6. 
 
 As a sreneral rule, no aofreement can be enforced, at Law Agreement 
 or in Equity, which is entered into for an illegal purpose (/) ; illegal pur- 
 or has a tendency to promote an unlawful act (g) ; or is i^*^^^ '^'°^^'- 
 contrary to the policy of the law : as e.g., where an ante- 
 nuptial settlement contemplates a future separation of 
 husband and wife (It) : so, where a corporation, before 
 obtaining a statutory authority, agreed for the subsale of 
 part of the lands, which they intended to take under their 
 compulsory powers (/) : and if the illegal agreement is to be 
 performetl in this country, it is immaterial that it was 
 entered into in a country Avhere it would have been con- 
 sidered valid (k). And there arc certain agreements which 
 the Leo'islature has pronounced to be, in their own nature. Sale of pre- 
 
 „ ^^ ^.^^^ /,s , , . , tended title. 
 
 illegal. The Statute of 32 Henry VIII. (I), declares it to be 
 unlawful to buy or sell any pretended right or title to any 
 lands or hereditaments, unless the vendors or their ancestors 
 or the persons through whom the claim is derived, have been 
 in possession of the property, or of the reversion or remain- 
 der thereof, or taken the rents or profits thereof, within a 
 year before the sale ; but the purchase of a pretended title, 
 
 (d) UorsfaU v. //ay, 2 Exch. 778. Bridjcs, 3 El. & B. G42. 
 
 But see as to real estate, Wilmot v. (</) E<jcrton v. Lord Brownlow, 4 
 
 ]Vilkinson, 6 B. & C. 506 ; Toll v. Lee, H. L, C. 1 ; and see Hilton v. Eck- 
 
 4 Exch. 230. ersJcy, 1 Jnr. N. S. 874. 
 
 (e) Ahhott V. Straiten, 3 J. & L. 616. (/,) If. v. W., 3 K. & Jo. 382. 
 
 (/) Vide infrd, Ch. XVII. and (i) Galloivay v. Mayor, etc., of Lon- 
 
 XVIII. As to usury, vide supra, on don, 10 Jur. N. S. 552 ; 11 Jur. N. S. 
 
 the sale of a rent, Lukey v. O'Donnell, 2G3. 
 
 2 Sch. & li. 466, 472, affd. 742 ; sale {k) Grcll v. Levy, 10 Jur. N. S. 210. 
 
 for purpose of a lottery, Fisher v. {!) C. 9 ; aec sect. 2.
 
 240 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 6. 
 
 To what the 
 Statute ex- 
 tends. 
 
 To what it 
 does not 
 extend. 
 
 by a person in lawful possession of the rents and profits, is 
 allowable (m). In a modern case, where A., possessed of a 
 term of years, died in 1828, and strangers entered and 
 occupied until 1841, when A.'s next of kin took out letters 
 of administration and sold and assigned the term, the assign- 
 ment was held to be clearly void (•?<) ; so, the Act extends to 
 a lease under a pretended title (o) ; and to the assignment 
 of the mere right to file a bill to set aside a previous 
 voidable conveyance (p) 5 ^^^'^ ^^ the purchase of an estate 
 for the purpose of acquiring the right to impeach some 
 previous arrangement affecting the property (q) ; and to 
 an agreement that the attorney shall, in lieu of costs, 
 have a share of the estate recovered for his client (-'/') ; 
 and d fortiori, to an agreement that, in addition to his 
 legal costs, he shall have a definite portion of the estate ; 
 or a sum proportionate to the value recovered (s) ; and it 
 would seem that any absolute purchase by the attorney of 
 the subject-matter of the suit iiendente lite is unlawful, and 
 void (f) ; but he may take security for his costs on the 
 subject-matter of the suit (u). The Act, however, does not 
 extend to an assignment of a purchaser's interest under the 
 agreement for sale (cc) ; nor to an agreement to sell an estate 
 in the event of the party becoming seised of it under the will 
 of the living owner (y) ; nor to an assignment of the subject- 
 matter of a suit (z) ; even though the assignees be mere 
 volunteers (a) ; nor to a security on the subject-matter of a 
 
 (m) See sect. 4. 
 
 (n) JDoe d. WiUimns v. L'vans, 1 C. 
 B. 717 ; Marquis Oholniondehj v. Lord 
 Clinton, 2 Jac. & W. 135 ; and see 
 Wood V. Dcwnes, 18 Ves. 12.^ ; BurJce 
 V. Greene, 2 Ba. & B. 517 ; Moore v. 
 Creed, 1 Dru. & WaL 521. 
 
 (o) Bitchins v. Lander, G. Coop. 34. 
 
 (p) Prosser v. Edmonds, 1 Y. & C. 
 4S1. 
 
 (q) De Uoghtoii v. Money, L. E. 2 
 Ch. Ap. 164. 
 
 (}•) Thomas v. Lloyd, 3 Jur. N. S. 
 288 ; see 33 & 34 Vict, c 28. 
 
 (s) L'arle v. Jlopwood, 7 Jiu-. In, S. 
 775. 
 
 (0 Siwq-ison V. Larnl), 7 Q. B. 84 ; 
 3 Jur. N. S. 412. 
 
 («) Simpson V. Lamb, uhi supra ; 
 and see Wood v. Downes, 18 Ves 120. 
 
 (x) Wood V, Griffith, 1 Sw. 56 ; 
 Sug. 356 ; and see 8 & 9 Vict, c, 106, 
 S.6. 
 
 (y) Cool V. Field, 15 Q. B. 460. 
 
 (s) Harrington v. Long, 2 Myl. & 
 K. 590 ; see Martyn v. Macnamara, 
 2 Con, & L, 541 ; Skully v. Delany, 2 
 Ir. Eq. 379 ; CocMl v. Taylor, 15 
 Beav. 117. 
 
 («) Dickenson v. Burrcll, L. R. 1 Eq.
 
 THE AGREEMENT. 2-ii 
 
 suit (h). It has, hoYv't;ver, been held thp.t where tlie assign- Chap. Yl. 
 
 ment contains an indemnity from the purchaser to the vendor ' 
 
 against the costs incurred, or to be incurred, in the suit, the 
 transaction savours of champerty (c) ; but this distinction has 
 not been lately followed; thus, where annuities were sold pend- 
 ing a suit which related to them, and the vendors took an in- 
 demnity against past and future costs, it was held that the sale 
 was not affected by the laws relating to champerty (d). Nor 
 does the Act apply if the purchaser have a previous common 
 interest in the event of the suit ; as in the case of a purchase, 
 by a second mortgagee, of the interest of the first mortgagee, 
 during a suit in which the mortgaged property is claimed 
 under a paramount title (e) ; nor where parties, having a 
 common interest, enter into an arrangement respecting the 
 litigation for securing it (f) ; nor w^here the agreement con- 
 tains no stipulation for the commencement of a suit, and no 
 suit is pending (g) ; nor to an agreement to enable the 
 pm'chaser of an estate to recover for rent due, or injury 
 done to the property prior to the purchase (h) ; nor to a 
 conveyance to a reversioner or remainderman, with a 
 view to strengthen his estate (/) ; nor to cases where the 
 right purchased is originally clear, but the litigation results 
 from circumstances subsequently arising or subsequently 
 known (A-) : and the nature of reversions necessarily ex- 
 eludes them from the direct operation of the Act of 
 Henry VIII. : but an agreement in respect to a reversion 
 may be so framed as to be imjDeachable as savouring of 
 champerty (l). A plaintiff, wdio has an original title 
 not founded on champerty, is not disqualified to sus- 
 
 (6) Andersen v. IladvUffe, 1 El. Bl. (y) ,^pr,ie x. Puricr, 3 Jur. N. S. 
 
 & Ell. 806, 819 ; 5 Jur. N. S. 704 ; 6 330 ; 5 W. 11. 31. 
 Jur. N. S. 578. (//) Sug. 357 ; WllUams v. Pro- 
 
 (c) Harrington v. Lonr/, 2 Myl. & tJicroe, 5 Bing, 309 ; -S'. C. 3 Y. & J. 
 Ke. 590 ; but see Sir Jas. Wigram's 129. 
 
 comments on this case, 4 Hare, 430. (() Co. Litt. 369 b; see Anson v. 
 
 (d) Kidijht V. Bov:yer, 23 Beav. 609; Lee, 4 Sim. 364. 
 
 affd. 2 I)e G. & Jo. 421. (A-) Wilson v. Short, Ha. 3CG. 
 
 {e) Hunter v. Daniel, 4 Ha. 420. {I) See Ileynell v. Sprye, 1 De G. 
 
 (/) Bainhrigije v. Moss, 3 Jur. N. ISl. & G. 6C0, and cases there cited. 
 S. 58. 
 
 VOT,. I. R
 
 242 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 Sect. 6. 
 
 tain tlie suit hy reason of his having made an improper 
 bargain with his soUcitor as to the mode of his remunera- 
 tion {m). 
 
 Splitting 
 votes for elec- 
 tioneering 
 purposes. 
 
 Selling an 
 advowson. 
 
 By the Act of the 7 & 8 Will. III., c. 2-5, s. 7, it is declared 
 tliat all conveyances made of any hereditaments, in order to 
 multiply voices, or to split and divide the interest in any 
 houses or lands among several persons, to enable them to 
 vote at elections of Members to serve in Parliament, are 
 void and of none effect ; and, by a later Act (n), such con- 
 veyances, although containing conditions or stipulations of 
 defeasance, are declared to be free and absolute. It appears, 
 however, from recent decisions, that a conveyance made to 
 carry into effect a real bond fide contract for sale, Avhere the 
 purchase-money is paid and possession taken without any 
 secret reservation or trust for the benefit of the seller, is not 
 within the Statutes, although it be made with a view to the 
 multiplying of voices, or to the splitting of the freehold ; 
 the intention of the Statutes being, to avoid such convey- 
 ances only, made with that vieAV, as are in themselves 
 fraudulent and collusive (o) ; and that the Statutes only 
 affect the Parliamentary Law, and do not prevent the estate 
 from passing (2?). 
 
 The right to sell an advowson, with the next presentation 
 as part thereof, or a next presentation alone, subsists so long 
 as there is an incumbent ; nor will his known imminent 
 danger, and his death within a few hours after completion of 
 the purchase, avoid the transaction as simoniacal, if the 
 parties had no particular clerk in view (q) : so, a stipulation 
 by a vendor, who is not the incumbent, that he will pay 
 interest on the purchase-money to the j)urchaser until the 
 
 (m) Hilton v. Woods,!,. R. 4 Eq. 432. 
 As to what constitutes common bar- 
 ratry and maintenance, see Scott v. 
 Miller, Johns. 221 ; and as to the remu- 
 neration of solicitors, sea now 33 & 34 
 Vict. c. 28. 
 
 (n) See 10 Anne, c. 23. 
 
 (o) Riley, app., Crossley, resp. 2 C. 
 B. 146 ; Alexander, app., Newman, 
 re.^p., ibid, 122 ; Thornily, app., Asp- 
 land, resp., ibid. 160. 
 
 (p) Fhillpottsv. PJdllpotts,10G.B. 85. 
 
 iq) Fox V. Bishop of Chester, 3 Bli. 
 N. S. 123.
 
 THE AGREEMENT. 243 
 
 livino' becomes vacant, does not make tlic contract simoniacal, C'hap. VI. 
 
 Sect. 6. 
 
 if there is no undertaking to procure an avoidance (/•) ; so, a 
 
 stipulation, on an exchange of benefices, that dilapidations 
 shall not be made good, is not simony (s). When the church 
 is void the right of immediate presentation cannot be sold 
 either alone or as part of the advowson ; and the purchase 
 of a next presentation by a clerk, with a view to present 
 himself is prohibited by Statute as simoniacal (t). This 
 enactment is not found in practice to prevent purchases of 
 entire advowsons by clergymen, with the view to present 
 themselves upon the next vacancies ; but the terms of the 
 Act, and of the oath against simony, generally suggest 
 greater difficulties to the mind of the conveyancer than to 
 that of the clerical casuist. 
 
 Under a modern Act (u), a contingent, an executory, and a Contingent 
 
 . . . interests, &c. 
 
 future interest, and a possibility coupled with an mterest, ni 
 any tenements, or hereditaments of any tenure, whether the 
 object of the gift, or limitation of such interest or possibiHty, 
 be or be not ascertained ; also, a right of entry, whether innne- 
 diate or future, and whether vested or contingent, into or 
 upon any tenements or hereditaments in England of any 
 tenure, may be disposed of by deed, and may, of course, be 
 contracted for. It seems that the words " right of entry," do 
 not comprise a right of entry for condition broken ; but only 
 a right of entry in the nature of an estate or interest ; i. c, 
 where a person by lapse of time has lost everything except 
 the right to enter ; at any rate, the former kind of right will 
 not pass under an assurance unless expressly named (x). 
 
 The 7 & 8 Vict. c. 110, s. 23, rendered al:)Solutely illegal Contraoteby 
 
 ' ' . jonit-stock 
 
 and void (y) contracts for purchase entered into by the pro- companies 
 
 ()•) Sivect V. Meredith, 8 Jur. N. S. rights of re-entry ; see Cranev. Batten, 
 
 637. 22 L. T. 220. 
 
 (s) Gohlham v. Edimnh, 2 Jur. N. (y) Ihdl v. CJuqrman, 8 Exch. 4ii. 
 
 g, 493, See now as to how far a conii)any may 
 
 (I) See 12 Anne, c. 12. l)e bound by the .acts of its promoters, 
 
 (u) 8 & 9 Vict. c. 106, s. 6, which Lin(lluy,400,r<i(Yy., and si/pm; and s-cc 
 
 takes effect from the lat Oct. 1845. Companies Act, 1867, 30 & 31 Vict., 
 
 [x) Hunt V. Blshoj^, 8 Exch. 675 ; c. 131, sec. 35. 
 flunt V. Remnant, 9 Exch. 635, as to
 
 244 
 
 THE AGREEMENT. 
 
 Chap. VI. 
 
 Sect. C. 
 
 before com- 
 plete registra- 
 tion. 
 
 Contracts by 
 mortgagee 
 with mort- 
 gagor. 
 
 meters of joint-stock companies prior to complete registra- 
 tion, unless made conditional only, and to take effect on 
 complete registration. 
 
 A mortgagee cannot, in Equity, contract with the mortgagor, 
 at the time of the loan, for the absolute purchase of the land 
 at a specific sum, in case of default being made in payment of 
 the mortgage money at the appointed time (z) ; but this rule 
 does not interfere with a purchase of the equity of redemption 
 by the mortgagee as a distinct and subsequent transaction ; 
 nor does it preclude an agreement by the mortgagor, at the 
 time of the loan, to give the mortgagee a right of preemption 
 in case of a sale during the continuance of the security (a). 
 
 (z) Coote Mortg. 14. 
 
 a) Ibid.
 
 245 
 
 CHAPTER YII. 
 
 AS TO THE EFFECT OF THE CONTRACT ON THE RIGHTS OF Chap. VII. 
 
 THE PARTIES. 
 
 1. Purchaser entitled to estate, and vendor to ]^)urcliase- 
 money. 
 
 2. Purchasers general rights under contract as against 
 vemlor. 
 
 3. Vendor's general rights under contract as against pur- 
 chaser. 
 
 4. Rights of vendor and purchaser, inter se, not affected^ 
 hg death, bankruptcy, d-c, of either party. 
 
 o. Death of vendor before completion, — its cfect on rela- 
 tive rights of his real and personal representatives, under 
 old, and under neiu laiu. 
 
 6. Dea.th of purchaser before compilction, — its effect on 
 relative rights of his real and personal representcdives, under 
 old, and. under new laiv. 
 
 7. Effect of contract in various special cases. 
 
 (1.) From the time of the owner of an estate having entered Sect. i. 
 into a bindinfj agreement for its sale, he holds the same in Vendor, how 
 trust for the purchaser, subject to payment of the purchase- ^^ purchaser, 
 money : but the relationship which is thus created is only 
 quasi-fiduciary, and does not entail all the obligations of 
 an ordinary trusteeship (h). For instance, when A con- 
 tracted to sell leaseholds to B, who paid part of the purchase- 
 money, and then deposited Avith his bankers the contract, 
 
 {h) Wall V. Brii/ht, 1 Jac. & W. 501 ; 7?06C v. Watsov, 10 II. L C. r,r.\
 
 246 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. accompanied by a memorandum in which he agreed to 
 ^''''^' ^' assign to them the leasehold premises by way of mort- 
 gage; and A having received through their solicitor a 
 wiitten notice of such agreement, subsequently assigned the 
 premises to B without any notice being taken in the assign- 
 ment of the claims of the bankers ; it was held by Lord 
 Hatherley, reversing the decision of Lord Romilly, that A 
 was not liable at their suit to make good the loss which they 
 in consequence sustained (c), and this reversal was affirmed in 
 tlie House of Lords. On the other hand if the agreement be 
 binding on the purchaser, he is, as a general rule, under a 
 personal, equitable, as weU as legal liability to the vendor 
 for payment of the purchase-money (d). 
 
 Although And the agreement equally binds the estate, although 
 
 trastee, or the vcudor bc a trustee, or a mere donee of a power of 
 power.°^ sale, instead of absolute owner (e). 
 
 Section 2. 
 
 As to pur- 
 chaser's 
 general rights 
 under con- 
 tract as 
 against 
 vendor. 
 
 General 
 nature of 
 Ijurchaser's 
 equitable 
 o^\Tiership. 
 
 (2). As to invrclwMvs general rigJds under contract as 
 against vendor. 
 
 It is sometimes stated, in general terms, that by the con- 
 tract, the purchaser becomes, in Equity, the OAvner of the 
 property : but "this rule applies only as between the parties 
 to the contract, and camiot be extended so as to affect the 
 interests of others. If it coidd, a contract for the purchase 
 of an equitable estate would be equivalent to a conveyance 
 of it. Before the contract is carried into effect, the purchaser 
 camiot, against a stranger to the contract, enforce equities 
 attaching to the property" (f); nor, semhle, can he as against 
 
 (c) McCreif/ht v. Foster, L. E. 5 
 Ch. Ap. 604 ; and sub nom. Shcnc v. 
 Foster, L. R. 5 E. & Ir. Ap. 321 ; and see 
 Craltrce v. Poole, L. R. 12 Eq. 13 ; and 
 as to the liability of a vendor in pos- 
 session for deterioration, see Phillips 
 V. Silvester, L. R. 8 Ch. Ap. 173; and 
 vide infru, Ch. XIII. ; sect. 4. 
 
 (rf) See Green v. Smith, 1 Atk. 572 
 Pollerfen v. Moore, 3 Atk. see 273 ; 
 
 Toft v. Stephenson, 7 Ha. 1 ; Pooley v. 
 Btidd, 14 Beav. 44; Birch v. Joy, 3 
 H. L. C. 565. But the piirchaser is 
 not a trustee within the meaning of 
 the Trustees' Relief Act : ride infrd. 
 
 (c) See re Bi/lx's Estate, L. R., 
 7 Eq., 337. 
 
 (/) Per Lord Cottenham, in Tashcr 
 . Small, 3 M. & C. 70 ; and see Wall 
 v. Br!;jht, 1 Jac. <S; W. 501.
 
 ON RIGHTS OF PARTIES. 24<7 
 
 the vendor enforce such equities, without at the same time Chap. Aai. 
 praying or offering specific performance of the contract — ' — 
 
 itself {(j). So notice of an incumbrance given to the pur- 
 chaser before the execution of the conveyance, is effectual, 
 although the purchase-money be actually paid (//,) ; and even 
 after the execution of the conveyance, if the purchase-money 
 be not actually paid (i), the purchaser, although he may then 
 have, or subsequently acquire, the legal estate, can, it is con- 
 ceived, use it against the incumbrancer only to the extent of 
 securino- such purchase-money. His interest under the con- Is capable (;f 
 
 ° ^ ^ alienation. 
 
 tract may, however, be charged, or assigned {h) ; and used to be 
 bound by a judgment (I) : but the incumbrancer, assignee, or 
 creditor, can only obtain relief, as against the vendor, on the 
 terms of undertaking all the purchaser's liabilities under the 
 contract (jh) ; and apparently the vendor is not bound by 
 notice of an incumbrance which does not purport to give the 
 incumbrancer an immediate right to offer himself as the 
 substitute for the purchaser {n). 
 
 Up to the time fixed for comi)letion, the vendor is, in the Vendor's 
 
 ^ , right to crops, 
 
 absence of special stipulation, entitled to the crops, or other &c., pending 
 ordinary profits of the land : he would not, however, it is '^""^^ 
 conceived, be entitled to take crops in an immature state, or 
 otherwise than in due course of husbandry. After the time 
 fixed for completion, and pending negotiation, he may, it 
 appears, in due course of husbandry, cut coppice and get in 
 crops, Ijut the net profits will belong to the purchaser (o). 
 Where the contract was for the purchase of an estate, in- 
 
 (rj) Fox V. Rv.ssdl, -3 Sma. & G. sioncrs, 1 De G. & Jo. 531. 
 
 2^2 ("0 Dijcr\. Pultcncy, Barn. Cli. 11. 
 
 {h) Wi(jfj V. Wlgg, 1 Atk. 384. 160. 
 
 {i) Tildedey v. Lodyc, 3 Sma. & G. («) Sec and consider McCrdyht v. 
 
 c^g Foster, uhi s>iprd. 
 
 (/■) Paine V. McUcr, Ves. 349, 352 ; («) Poole v. SlierfjoU, 1 Cox, 273 ; 
 
 Seton V. Sladc, 7 Ves. 274 ; Dovmn v. Sug. 644 ; see as to manorial fines, on 
 
 Solomon, 1 Drew. & Sma. 1. purchase of a manor, Garrirk v. Lord 
 
 (I) Baldinn v. Bckhcr, 1 J. & L. Camden, 2 Cox, 231 (stated infra, Ch. 
 
 18; Walcotlv. L>,nrh, 13 Ir. E-i- K. XXL); and Earl of Ilarduirke v. 
 
 Id9 ; Governors of Orel/ Coat IfospUal Lord Sandi/s, 12 M. & W. 761; 
 
 V. Westminster Imj;>rovcmeat Commis- Cuddon v. Tite, 1 Giff. 395.
 
 248 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 Sect. 2. 
 
 eluding the growing crops, to be completed and possession 
 given on the 24th June, and the time Avas extended hj 
 consent till the 29th September, and the vendor in the 
 interval sold the crops, the purchaser was held entitled, in 
 Equity, only to the crops growing at the time of the actual 
 completion, and was left to his remedy (if any) at Law for 
 the recovery of the produce of the crops (p). 
 
 Windfalls, Everything, however, which forms part of the inheritance 
 
 tur'cLie?.^ *° belongs to the purchaser from the date of the contract ; so 
 
 that he is entitled to windfalls (q), and to the produce of 
 
 ordinary timber cut (r), or, it is conceived, stone or gravel 
 
 quarried or dug by the vendor after the contract (s). 
 
 Material 
 alteration of 
 property by 
 vendor avoids 
 the contract. 
 
 And any act of the vendor, which prevents his giving to 
 the purchaser that which was, substantially, the subject- 
 matter of the contract, renders the agreement voidable hj 
 the latter ; e. g., the felling of ornamental timber (f) : and, 
 even as to ordinary timber, the authorities merely show 
 that the fall of it may be matter for compensation ; cases 
 might, it is conceived, occur, in Avhich the Court would 
 relieve a purchaser on account of falls of wood, although 
 neither planted nor left for ornament or shelter, e. g., as 
 where sufficient is not left for repairs, or where the general 
 character or appearance of the estate, or of any special part 
 of it, is materially altered. 
 
 Purchaser And slncc, as between the parties to the contract, the pur- 
 
 takes acci- phascr is OATOcr of the estate, he has the benefit of any im- 
 
 deutal bene- ' i r xi 
 
 fits, and bears provcmcnts to thc property which may happen alter the 
 
 w!!;'afin date of the contract (fc) ; e. g., the dropping of lives on the 
 
 (p) Webster V. DonaMson, 11 Jur. 
 N. S. 404. Quccre, the legal remedy. 
 
 {q) Poole V. Shcrrjold, uU sitjirri. 
 
 ()•) Ma/jennts v. Fallon, 2 Moll. 
 591. 
 
 (s) See ydson v. Brkhjcs, 2 Beav, 
 239. 
 
 (0 White V. Nutt, 1 P. Wnis. 61 ; 
 
 Spurne)' v. Ilanroclc, 4 Ves. G67, C74; 
 Mae/ennis v. Fallon, ubi su2)rci. 
 
 (m) Expenditure iipon the property 
 by the vendor seems to fall within 
 the rule : see Monro v. Taylor, S Ha. 
 60 ; Clare IMl v. IlarcUng, G Ha. 
 296.
 
 ON RIGHTS OF PARTIES. 249 
 
 purchase of a reversionary interest (./■) ; or a sudden rise in ciiap. vii. 
 
 • Sect '' 
 
 the vahie of land from its bcmg required for a public 'Jll 
 
 purpose (i/) ; and must bear any loss which occurs without J;^^^^^^^^^ f^^^ 
 the fault of the vendor; e. g., the deterioration of the pro- life: 
 perty through the calamities of the times {z) ; the death of or of ceUai que 
 the cestui que vie, on the purchase of an estate for life, or a 
 life annuity («) ; or the admission of younger lives to copy- 
 hold tenements on the purchase of a manor, and the con- 
 sequent diminution in the value of the fines (h) ; or the 
 destruction of house property by fire (c), or an earthquake (d); 
 and, as respects fire, the vendor, unless he agree that the pro- 
 perty shall be kept insured (e), or, it would seem, make some 
 proposition to the purchaser grounded upon the fact of its or fire, 
 being insured, need not keep up the insurance, or give the ^vheS 
 purchaser notice of its having dropped (/) ; but if the omis- ^^^^"^ *° ^'^- 
 sion by the vendor to keep up the insurance renders the 
 title impeachable, the purchaser, it seems, may be dis- 
 chaged ((/) ; so, if the vendor, though not bound to insure, 
 effects an improper insurance, and the property thereby 
 becames liable to forfeiture, he cannot enforce the con- 
 tract (/i). The purchaser of house propei-ty must, as between 
 himself and the vendor, make good any injury done to 
 adjoining premises by the fall of the buildings subse(|uently 
 to the contract (i). 
 
 And where the accruing benefit is such, that, if taken by rtestriutiuns ^ 
 
 ^ on jiurcliascr s 
 
 (x) 1 Madcl. 539. the fire ; Contci' V. Macphcrson, 5 Moo 
 
 {y) 6 Ves. 352. P. C. 83, 106. 
 
 (,:) Poole V. Bhcrgold, 2 Bro. C. C. {d) Ccm v. Rudele, 2 Vern. 280 ; 
 
 118. but see 1 Ero. C. C. 157, n., where 
 
 (a) Sug. 292 ; and see 6 Ves. 352. the case is laid to be misreportod. 
 
 (6) Cuddon v. Tltc, 1 Gif. 395 ; 4 (e) Poole v. Adams, 12 W. R. 683. 
 
 Jur. N. S. 579. (/) (3 Ves. 353. 
 
 (c) Paine v. Mdkr, 6 Ves. 349 ; {;j) Palmer v. Gorcn, 25 L. J. N. S. 
 
 Harford v. Purrkr, 1 Madd. 532, 539 ; (Ch.), 841. 
 
 Rerell v. Hassej/, 2 Ba. & B. 287 ; (h) Doivson v. Solomon, 1 Drew. & 
 
 and see Poole v. Adams, 12 W. R. G83; Sma. 1 ; 8 W. R. 123 ; 6 Jur. X. S. 
 
 V.-G. K. ; but see Bacon v. Simjison, 33. 
 
 3 M. & W. 78. AUter,ii the vendor ((') Pohcrlson v. Slcdton, 12 Buav. 
 
 have agreed to repair or alter the 260, 266. 
 premises, and have not done so liefore
 
 2.50 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 Sect. 2. 
 
 right, — case 
 of vacancy on 
 sale of advow- 
 son. 
 
 Sale in con- 
 sideration of 
 life annuity ; 
 and death of 
 cestui que vie 
 before convey- 
 ance. 
 
 N<.it entitled 
 until com- 
 pletion to par- 
 liamentary 
 franchise. 
 
 the purchaser, it would or might be irrecoverably lost to the 
 vendor, (as in the case of a vacancy occurring, pending dis- 
 cussions on the title to an ads'owson,) the purchaser claiming 
 the benefit must, as a general rule, accept the title (/.') : in 
 Wyi'lll V. BisJtop of Exeter (/),thc right to present was alto- 
 gether denied him, on the ground of his objections to the title 
 having been frivolous ; but the case seems of doubtful au- 
 thority (7r). 
 
 So, in the converse case of an estate being sold in consi- 
 deration of a life annuity, and of the cestui que vie dying before 
 completion, the purchaser will be entitled to a conveyance on 
 payment of the arrears (?i). It is, however, as a general rule, 
 essential, in such a case, that he should, in the lifetime of the 
 cestui que vie, have made, or tendered, any j^ayment which 
 became due during such lifetime (o) : but the rule, it is 
 jjresumed, would not apply, unless a sufiicient interval had 
 elapsed between the payment becoming due and the death, to 
 allow of payment or tender being made according to the usual 
 course of business ; the omission, in fact, must amount to 
 laches (p) : nor, on the other hand, where a payment had been 
 previously refused or long neglected, is it likely that a Court 
 of Equity would be satisfied with payment or tender made at 
 a time Avhen the cestui que vie was, to the knowledge of the 
 purchaser, dying or dangerously ill. And although the Court, 
 upon sales in consideration of an annuity, will enforce sj)ecific 
 performance notwithstanding the death of the annuitant, it 
 will inquire with some jealousy into the fairness of the 
 transaction ; and will, under such circumstances (5), require 
 a clear case for specific performance. 
 
 A purchaser is not entitled, before completion, to vote at 
 the election of a member of parliament in respect of the land 
 purchased (r). 
 
 (k) Sug. 293. 
 
 (0 1 Pri. 292. 
 
 (m) Sug. 293. 
 
 (n) Mortimer v. Capper, 1 Bro. C. 
 C. 156 ; Baldwin v. Boulter, ibid., 
 cited in Coles v, Trccothich, 9 Ves. 234, 
 2i\ 
 
 (0) Jaclison V. Lever, 3 Bro. C. C. 
 605 ; Pope v, Pwots, 1 Bro. P. C. 370. 
 
 {p) See Sug. 295. 
 
 {q) Davics V. Cooper, 5 M. & C. ; 
 see p. 279. 
 
 (»•) Andai/ v. Levis, 2 Jur. N. S, 
 164.
 
 ON RIGHTS OF PARTIES. 251 
 
 Wu shall hereafter have occasion to consider the above Chap. vil. 
 rules, with reference to sales under a decree of the Court of 
 
 r^i , \ Sales by 
 
 Chancery (.s). Court. 
 
 Where a public company, under the usual compulsory ^^(JjVj'^^^^l^^ 
 
 power, contract for the purchase of part only of the land pany under 
 
 . .,, L i.1 • 1 L^ compulsory 
 
 subject to the power, this wdl not prevent tlien- subseipientiy power, doe.s 
 
 exercising it in respect of the residue it). power. ^"^^ 
 
 (3.) An to vendors general rights under contract as against Section 3. 
 
 imrchaser. As to vendor's 
 
 general rights 
 
 The vendor has a lien uiwn the estate for the unpaid pur- under con- 
 tract as 
 chase-money (ii) : if, therefore, before payment, the purchaser against pur- 
 be in possession. Equity will restrain him from any act, — ^'*^^''\, ,. 
 such as felling timber, — by which the vendor's security might on estate, 
 be lessened (^0- If> however, only an inconsiderable part of He may re- 
 
 ^ ' ' . . . strain a fall of 
 
 the purchase-money remain unpaid, it may be conjectured timber by _ 
 that the vendor, applying for the injunction, Avould, as would possession.''^ 
 an ordinary mortgagee, have to satisfy the Court that the 
 estate without the timber was an insufficient security (y) : 
 and it is 'also presumed that the injunction might be so 
 extended as to restrain the cutting of underwood out of the 
 due course of husbandry {z), or any other similarly prejudicial 
 act. 
 
 Prior to the 27 & 28 Vict. c. 112, a judgment entered up Judgment is 
 
 , a lien on un- 
 
 ao-ainst the vendor sul)sequently to the contract, and paid purchase- 
 registered, was a lien upon the unpaid purchase-money ((0 : °^""*'^* 
 and, consequently, to that extent, upon the land itself. And 
 an extent upon Crown process, at any time before convey- 
 
 (.s) Infra, Ch. XXI. (,'/) See Humphreys v. Harrison 
 
 (t) Simimm v. Lancaster and Oar- 1 Jac. & W. 581 ; Hippesley v. 
 
 Us'e R Co., 15 Sim. 580 ; Stumps v. Spencer, 5 Madd. 122 ; King v. Smith, 
 
 Birmingham and Stour Vidky 11. Co., 2 Ha. 239. 
 2 Ph. 673 ; G Rail. Ca. 123. (~) Humphrei/s v. Harrison, uhi 
 
 (u) As to which, vide infra, Ch. supra. 
 XIV., sect. 1. (") Rji<-1- y» Ju'lb'- 21 ; infrA, Ch. 
 
 (x) Crochford v. Alexander, 15 Ves. XI. 
 138,
 
 252 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. ance, binds the purchaser although he has paid his 
 
 Sect. 3. ., . 
 money (6). 
 
 Vendor's If the purchaser die, intestate and witliout an heir, before 
 
 right.s, on . T T 1 n 1 T 1 • T 1 
 
 death of pur- convcyancc, it seems probable that the vendor nnght keep the 
 hek befot^"'''' estate and any part or all of the pm-chase-money, if 
 completion. paid (c) : as there is no escheat of equitable estates (c?). 
 
 Tenancy of 
 jjurchaser, 
 whether 
 determined 
 by contract. 
 
 Where the purchase is by a tenant, either from year to 
 year or for a longer term, the contract will not determine 
 the tenancy, unless specially worded so as to be an absolute 
 contract for purchase whether the vendor do or do not show 
 a good title (e) : but Equity will restrain the landlord from 
 enforcing payment of rent pending completion (/). 
 
 Tenancy at 
 will deter- 
 mined. 
 
 A mere tenancy at will apj)ears to be determined by the 
 contract (g) ; from the time at which possession is agreed to 
 be given to the purchaser. 
 
 Purchaser in 
 possession not 
 liable for use 
 and occupa- 
 tion, if no 
 title. 
 
 It has been determined, that a purchaser who has been let 
 into possession, pending discussions as to title, cannot, if the 
 contract go off through defects in title, be sued for use and 
 occupation : even although the occupation may have been a 
 beneficial one (Jt) : nor can he, unless he agreed to quit on 
 some specified event which has happened (i), be ejected 
 without a demand of possession (A) : the above questions 
 should, of course, be provided for by special agreement where 
 
 (h) Rex V. 
 
 1 Price, 220, n. 
 
 see 2 Vict. c. 11, ss. 8, 9, 10, and 11. 
 
 (c) See Sug. 295, 296, commenting 
 on Burrjess v. Mlicate, 1 W. Bl. 123 ; 
 see 4 & 5 Will. IV. c. 23. 
 
 {d) S. C. ; Beak V. Sijmomh, 16 
 Beav. 406. 
 
 (c) Doe V. Stanwn, 1 JI. & W. 
 695 ; Tarte v. Darhj, 15 M. & W. 
 601. 
 
 (/) Daniels v. Davison, 16 Ves. 
 253. 
 
 (rj) Sug. 178. 
 
 {k) Winterbottom v. Injham, 7 Q. 
 
 B. 611 ; and see Kirtland v. Ponn- 
 sett, 2 Taunt. 145, where the Court 
 seemed to attach imj^ortance to the 
 fact of the purchaser having paid 
 part of the purchase-money ; see p. 
 147 ; but this, although it was also 
 the case in Winterbottom v. Ingham, 
 does not seem to have been there 
 considered material. See, in Equity, 
 Stevens v. Guppy, 3 Russ. 171 ; Wil- 
 liams V. Sliav, ib., 178, n. 
 
 (/) Doe V. Sayer, 3 Camp. 8. 
 
 (I) See 1 J\r. & W. 700 ; Ri'jld V. 
 Beard, 13 East, 210.
 
 ON RIGHTS OF PARTIES. 253 
 
 the purcliaser is let into possession before payment, or ^Yhere Chap. VI r. 
 
 the purchase is by a tenant. A purchaser who has let a ^^" 
 
 tenant into possession, can maintain an action for use and 
 occupation against him, although the purchase be not com- 
 pleted ; the tenant being estopped from disputing the title of 
 the party from whom he received actual possession (/). 
 
 It seems probable that if, after the contract, the vendor Expenditure 
 lay out money on the property, e.g., in obtaining a renewal ^ ^^^ 
 of the lease on which it is held, he has no claim on the 
 purchaser for the expenditure (»i) : but this rule, it is con- 
 ceived, could not apply to exjDenditure essential to the pre- 
 servation of the property, and incurred Ijy the vendor after 
 the expiration of the time fixed for completion, — the delay 
 resting with the purchaser. 
 
 (4.) Rights of vendor and purchaser, inter se, not affected by Section 4. 
 death, hanhruptey, d-c, of either 'party.) Rights of 
 
 vendor and 
 purchaser, 
 
 The contract, when once entered into, will not without an affected by 
 express stipulation to that effect, be avoided by the death, ruptcy^&^^of 
 bankruptcy, insolvency, or lunacy (/?), of both or either of ^'^^^^'^ P^^'ty- 
 the parties, even before the time fixed for completion. avoidecibv^*^ 
 
 death, bank- 
 ruptcy, or 
 
 Previously to the late Bankruptcy Act, upon the bank- insolvency. 
 ruptcy of a purchaser, the vendor might require the assignees asslfmees^of 
 to elect whether they vrould abandon or perform the contract ; hankmpt 
 
 •^ . . ' under the old 
 
 and, if they failed to declare their election (a), he might aj)ply laws. 
 
 {!) See Doe v. Mills, 4 Nev. & M. (n) Winr/cd v. Lefebury, 2 Eq. Ca. 
 
 25, 29 ; and Hull v. Vaurjliun, G Pri. Abr. 32 ; Orlehar v. Fletcher, 1 P. 
 
 157 ; 7 Q. B. 617. See the doctrine Wms. 737 ; Owen v. Davics, 1 Ves. 
 
 of estoppel between landlord and 82 ; Brooke v. Hewitt, 3 Ves. 255 ; 
 
 tenant explained, Langford v. Scbnes, Whitworih v. Davics, 1 Ves. & B. 545; 
 
 3 K. & Jo. 226 ; Morton v. Woods, L. R. Valpy v. Oaklei/, 16 Q. B. 941 ; Sug. 
 
 3 Q B. 658 ; L. R. 4 Q. B. 293. 170, 220; infra, Ch. XVIII. ; as to 
 
 (m.) Siq^rd, p. 248, n. («) ; and riile lunacy, see 16 & 17 Vict. c. 70, s. 122. 
 
 infrd, Ch. XIII., s. 4, and comments (o) As to what amounted to elec- 
 
 onPhillijysv. Sylccstcrjlj.Ii.SCh.A-p. tion, see Hastinrjs v. Wilson, Holt's 
 
 173. N. P. Ca. 290 ; and vide supra, p. 83.
 
 254 
 
 EFFECT OF CONTRACT 
 
 Chap. VI r. 
 Sect. 4. 
 
 by petition for delivery up of the agreement and for posses- 
 sion of the premises (j)) : and if, in any case, they allowed a 
 reasonable time to elapse without requiring the contract to 
 be performed, they were considered to have abandoned it (q) ; 
 and the question, what was a reasonable time, would, in an 
 action at Law, be left to the jury (r) : or the vendor might 
 petition for a resale of the property, and for payment of the 
 amount remaining due to him, and for leave to prove for the 
 deficiency (s) (if any) ; and he was held entitled to his costs, 
 although there was no written contract, but only part per- 
 formance of a parol agreement (t). 
 
 Disclaimer 
 trustee of 
 baiilvrupt 
 under the 
 recent Act. 
 
 hy Under the Bankruptcy Act, 18G9, the trustee of the bank- 
 rupt's property may, notwithstanding that he has endeavoured 
 to sell, or has taken possession or exercised acts of owner- 
 ship, by writing, under his hand, disclaim any property (i() 
 of the bankrupt Avhich is of a burdensome or unsaleable 
 description, including unprofitable contracts ; and, upon the 
 execution of such disclaimer, the property disclaimed shall, 
 if the same is a contract, be deemed to be determined from 
 the date of the order of adjudication {x) : but this right of 
 disclaimer is not to be exerciseable in cases where application 
 in writing has been made to the trustee by any person inte- 
 rested in the property, requiring the trustee to decide whether 
 he will disclaim or not ; and the trustee has for a period of 
 not less than twenty-eight days after the receipt of such 
 application, or such further time as may be allowed by the 
 Court, declined or neglected to give notice whether he dis- 
 claims or not (y) ; and as respects leaseholds, the leave of the 
 Court to disclaim must be first obtained (z). Any person 
 
 (p) 6 Geo. IV. c. 16, s. 76 ; 12 & 
 13 Vict. c. 106, ss. 145, 146 ; 24 & 25 
 Vict. c. 134, ss. 131, 150. 
 
 (q) Lawrence v. Knoiclcs, 7 So. 
 381. 
 
 (r) -S'. a 
 
 (s) Bowles V. Roijers, 6 Ves. 95, n. ; 
 Hope V. Booth, 1 B. & Ad. 498. 
 
 (0 Ex ptarte Cooper, 3 M. D. & De 
 G. 717. 
 
 (m) As to the meaning of the word 
 " property," see interpretation clause, 
 sect. 4. 
 
 {x) See 32 & 33 Vict. c. 71, s. 23. 
 
 (y) See sect. 24. 
 
 {z) See rule 28 of Bankruptcy Rules 
 of 7 July, 1S71 ; re Wilson, L. R. 13 
 Eq. ISO ; and as to an extension of the 
 time for disclaiming ; see re Jones, L, 
 R. 9 Ch. Ap. 586,
 
 ON RIGHTS OF PARTIES. 
 
 'Zoo 
 
 interested in the disclaimed property may, on application, 
 obtain an order for the delivery of possession ; and any 
 person injured by the exercise of the right of disclaimer is 
 to be deemed a creditor of the bankrupt to the extent of 
 snch injury, and the debt is made proveable under the bank- 
 rupt cy. 
 
 Chap. VII. 
 Sect. 4. 
 
 As a bankrupt's estate under the old law vested in his I'lea of bank- 
 ruptcy, STibse- 
 asslgnees by the bankruptcy, he might, before fiat, plca<l quent to the 
 
 his bankruptcy, subsequent to the contract, to a bill for ^^^ j^j. specific 
 specific performance (a). Under the recent Act, until the performance. 
 appointment by the creditors of a trustee, the registrar is to 
 be trustee for the purposes of the Act ; and immediately 
 upon the order of adjudication being made, the property of 
 the bankrupt is to vest in the registrar; but is to pass to, and 
 vest in, the trustee upon his appointment (h) ; and is to pass 
 from trustee to trustee (including under that term the regis- 
 trar during a vacancy of the trusteeship,) and to vest in the 
 trustee for the time being during his continuance in office, 
 without any conveyance, assignment, or transfer whatever (c). 
 There appears to be nothing in the Act which will invalidate 
 a plea of subsequent Ijankruptcy to a bill for specific per- 
 formance. 
 
 (5.) Death of vendor before cornpletion: its e feet on relative 
 rights of his real and personal representatives, under old 
 and under neiu laiv. 
 
 Upon the vendor's death, the unpaid purchase-money, 
 although, by the agreement, made payable as he shall ap- 
 point {d), forms part of his personal estate {e) : the profits of 
 
 (a) Lane v. Smith, 14 Beav. 49; 
 and see Turner v. Hohinson, 1 Sun. & 
 St. 4. 
 
 (b) See 32 & 33 Vict. c. 71, k. 17. 
 
 (c) See sect. S3. 
 
 (d) Thompson v. Towne, 2 Vern. 
 319 ; and see 1 Vict. c. 26, s. 27. 
 
 (e) Fletcher v. Ashburiier, 1 Bro. C 
 C. 497 ; 1 Wh. & T. L. C. 059 ; Baden 
 
 V. Countess of Pemhrole, 2 Vern. 213, 
 215 ; Eaton v. Sanxter, 6 Sim. 517 ; 
 see as to standing timber, Anon., cited 
 7 Ves. 437 ; Sug. 188 ; see Lord 
 Ilutherton v. Bradburne, 7 Jm*. 1100 ; 
 13 Sim. 599 : where the question was 
 whether the consideration j^ayable for 
 a mining licence was purchase-money 
 or rent. 
 
 Section 5. 
 
 Death of 
 vendor before 
 completion : 
 its effect on 
 relative rights 
 of his real and 
 personal 
 representa- 
 tives, under 
 old, and under 
 new law.
 
 25G 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 Sect. 5. 
 
 Purchase- 
 money and 
 interim 
 
 profits. 
 
 Legal estate. 
 
 the laud from his death u]) to the time fixed for completion 
 belong to his real representatives (/) : as until that time 
 there is no conversion. 
 
 If he die before conveyance, the legal estate, of course, 
 descends on his heir or devisee ; if he die without an heir, 
 and intestate, a conveyance of the legal estate may be ob- 
 tained under the provisions of the Trustee Act, 1850 (g). 
 
 Heirs of 
 
 equitable 
 
 vendor 
 
 necessary 
 
 parties to 
 
 conveyance. 
 
 And it has been held that where the vendor of an equitable 
 estate dies before completion, his heirs are necessary parties 
 to the conveyance (h) : but in such a case the Court will not 
 make any order purpoi'ting to vest the outstanding interest 
 in the purchaser (;) : a vesting order being appropriate only 
 in respect to a legal estate. 
 
 Under old 
 law, contract 
 revoked prior 
 elevise in 
 Equity. 
 
 Although 
 devise was in 
 trust to sell. 
 
 Relative 
 rights of ven- 
 
 In cases governed by the old law, as it existed before the 
 passing of the new Wills Act (/.:), (and which, it must be 
 remembered, is still binding in all cases where the will has 
 not been made or re-published, &c., on or since the 1st of 
 January, 1838), the contract for sale (assuming it to be bind- 
 ing as against the vendor), is, in Equity, a revocation of a 
 prior devise of the property (?) ; the legal estate passes to the 
 devisee, but merely as a trustee ; and the purchase-money 
 belongs to the personal estate. And even if the estate be 
 devised in trust for sale, and then be agreed to be sold by the 
 testator, the purchase-money will not belong to the legatees 
 of the proceeds of sale (in). 
 
 In such cases, the question between the real and personal 
 
 (/) Lumsdcn v. Frascr, 12 Sim. 
 2G3. 
 
 (rj) 13 & 14 Vict. c. 60 ; or, for- 
 merly, under the 4 & 5 AVill. IV. c. 
 23 ; see Re Loice's Estate, 2 Ph. 690 ; 
 vide infra, Ch. XIII., end of s. 1. 
 
 (70 Dal;/ v. Naldcr, 11 Jur. N. S. 
 921. 
 
 (i) Re Williams' Estate, 5 De G. & 
 S. 515. 
 
 (k) 1 Vict. c. 2G, 
 
 (/) Cotter V. Layer, 2 P. Wms. 
 624 ; Knollys v. Alcoclc, 5 Ves. 654 j 
 Bennett v. Lord TanJcerviUe, 19 VeS. 
 178 ; and see Vawser v. Jcffery, 3 
 Russ. 479, 484. 
 
 (m) Arnatd v. Arnald, 1 Bro. C. C. 
 401 ; Neieliold v. Roadhnglit. 1 Russ. 
 & M. 677 ; see Saunders y.jOramer, 3 
 Dru. & W. 87.
 
 ON RIGHTcJ OF PARTIES. 257 
 
 representatives seems to be this, viz., whether the vendor at Chap.vii. 
 
 Sect 5 
 
 the time of his death was, either absolutely or contingently, U — 
 
 under such an agreement as Equity would enforce against Je^g^^^f^ ''^'^ 
 him (n) : if so, the property (as between his real and per- representa- 
 
 ^ ^ > ir L J \ ^ J^ tives, de- 
 
 sonal representatives), forms part of his personal estate from pended on his 
 the time fixed for completion ; whether such time be specified perform the 
 in the contract, or have to be determined by the occurrence of contract, 
 some collateral event, or depend upon the mere option of the 
 purchaser (o) : and is liable to probate duty in the hand of his 
 executors (p) : but unless and until such event occur, or such 
 option be declared, the estate (in the case of intestacy) 
 belongs to the heir (q) ; or in the case of a devise (either 
 after (r) or before (s) the contract), to the devisee, unless the 
 contract evidence a contrary intention ; which intention is 
 not evidenced by a special reservation of the rent and profits, 
 until completion, in favour of the vendor, his heirs, executors, 
 and administrators (t). 
 
 For example, where a lessee of real estate with an option 
 of purchasing the fee at the end of a term of years, exercised 
 his option after the death of the lessor, it was held that the 
 realty was thereby converted into personalty as between the 
 lessor's real and personal representatives (u). So, where, 
 after the date of his will, a testator entered into a contract, 
 giving an option to purchase which was exercised after his 
 death, it was held that the property was converted as from 
 the date of the exercise of the option ; and that the purchase- 
 In) See Att.-Gcn. v. Day, 1 Ves. (r) Sag. 187. 
 220; Knollys \. Ahoclc, 7 Ves. 558; (s) Hunter v. Watson, a case dc- 
 Sug. 186. cided by Lord Selborne in May 1874, 
 
 (o) Lawes v. Bennet, reported 1 but not reported. 
 Cox, 167 ; cited 7 Ves. 436 ; and («) ShadfortJi. v. Temple, 10 Sim. 
 
 4 Ves. 596. See L'muss v. Smith, 2 184. 
 
 De G. & S. 722 ; Goold v. Tear/ne, («) ColUn'jwood v. Row, 5 W. R. 
 
 5 Jur. N. S. 116. As to what 484 ; 3 Jur. N. S. 785 ; TownUy v. 
 amounts to election, see Padbury v. BedweU, 14 Ves. 591. But see Drant 
 Clark, 2 Mac. & G. 298. v. Vause, 1 Y. & C.C. C. 580 ; Emuss 
 
 (l>) Att.-Gen. v. Brunning, 8 H. L. v. Smith, 2 De G. & S. 722. Com- 
 Ca. 213, reversing 4 H, & N. 04. pare Bowen v. Barlow, L. R. 11 Eq. 
 
 (q) Townlcy v. Balwcll, 14 Ves, 454. 
 591. 
 
 VOL. I, ^
 
 2o8 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Sect. 5. 
 
 money belonged to the residuary legatees, and not to the 
 specific devisee of the estate, who was entitled only to the 
 intermediate rents (,c) : and an agreement between conflict- 
 ing claimants of an estate, that the same should be sold and 
 the produce divided, has been held a conversion (//) : so have 
 the adoption and completion by the heir of his ancestor's 
 parol contract for sale (s). 
 
 Sale in testa- 
 tor's lifetime 
 without his 
 authority. 
 
 Where chattels specifically bequeathed were sold by the 
 friends of the testator during his life, he being then a lunatic 
 and so continuing until his decease, this was held to be no 
 conversion as between the specific legatee and the residuary 
 legatee, although the unauthorized sale was approved and 
 confirmed by the Court in an administration suit : and the 
 fact of the specific legatee having actively concurred in the 
 sale did not affect her rio-ht, she being then under cover- 
 ture (a). 
 
 Conversion on 
 purchases by- 
 railway com- 
 panies. 
 
 And it has been held that when a railway or other public 
 company, in exercise of its compulsory power gives due 
 notice of its intention to take land, mere acquiescence by the 
 owner in such notice, will (unless he be non compos, or under 
 some other personal disability), (6) be considered equivalent 
 to a contract, and have the effect of converting the property 
 into personalty {c). But, in a modern case, where the earlier 
 decisions were fully reviewed, the precise effect of the service 
 of such a notice was accurately defined : for certain pur- 
 poses, and to the extent of fixing the quantity of land to be 
 taken, the service of the notice may be said to constitute the 
 relation of vendor and purchaser ; but until the negotiations 
 
 (a;) Weeding v. Weeding, 1 J. & H. 
 424. 
 
 iy) Hardcy v. Ilawlshau; 12 Beav. 
 552. 
 
 (z) Frayne v. Taylor, 10 Jur. N. S. 
 119. 
 
 («) Taylor v. Taylor, 10 Ha. 475. 
 
 [h) Midland Counties II. Co. v. 
 Osicin, 1 Coll. 74, SO ; but see //; re 
 
 the East Lincolnshire R. Act, re Cross's 
 Estate, 1 Sim. N. R. 260 ; and 6 Moo. 
 P. C.397. 
 
 ((■) Ex 'parte Hawhins, 13 Sim. 509 ; 
 and see Richards v. Att.-Gen, of Ja- 
 maica, 6 Moo. P. C. 381 ; but see 
 Adams v. Elackirall R, Co., 2 Mac. & 
 G. 118, 129 ; 6 Ptail. Ca. 271 ; In re 
 Slo'-art, 1 Sm. & G. 37.
 
 ON RIGHTS OF PARTIES. 250 
 
 thus originated result in a funnal agreement, or in acts of Chap. Yll. 
 the parties equivalent thereto (as, e.(j., the fixing of the price ' 
 
 by arbitration), there is no contract, which the Court can 
 specifically enforce at the suit of either party, and therefore 
 no conversion (<?). Thus where, after service of the notice, 
 the vendor stated the price which he was willing to take, 
 but died before his offer was accepted, it was held that, 
 although the purchase was afterwards completed at the price 
 asked, there was no conversion (e) ; so, where the contract 
 with the landowner merely fixed the price per acre, without 
 specifying the quantity to be taken, the purchase money 
 paid for land taken after the owner's death was held to be 
 realty (/) ; but where after service of the notice, two sur- 
 veyors were appointed under the L. C. C. Act, and the land- 
 owner verbally agreed to accept the price thus ascertained, 
 but died before completion, having by a will, long prior to 
 the notice, specifically devised the property to A., it was 
 held that there was a valid contract, and that the devise to 
 A. was adeemed ; but that A. was entitled to the rents which 
 accrued between the death of the testator and the com- 
 pletion of the purchase {(j). 
 
 In the absence of express clauses for the purpose, it is Where owner 
 not the effect of a Railway Act to alter the course of the 
 devolution of the property without the owner's consent or 
 election ; and it is now well settled that if the owner be a 
 lunatic, or under any other incapacity, the purchase-money 
 for the land taken retains the character of realty Qi). 
 Where money was paid into Court under certain local Acts, 
 and one of the persons entitled was convicted of felony and 
 
 {d) Haynesv. Iluynes, 1 Drew. & parte 11 awl'inB,u.ni\.lI(njncs\. Ilayncs; 
 
 Sma. 426, and cases cited in judg- and see also Hardinrj v. Metrop. R, 
 
 ment ; and vide supra, p. 210 ; and Co., L. E. 7 Ch. Ap. 154. 
 
 infra, Ch. XVII. s. 9. (A) Midland R. Co. v. Osivin, 1 
 
 (c) Re Arnold, 32 Beav. 591. Coll. 74, 80 ; In re Sloper, a case 
 
 (/) Ex parte Waller, 1 Drew. 508. decided by the Lords Justices, and 
 
 {(J) Watts V. Watts, L. 11. 17 Eq. cited 22 Beav. 198 ; but see Steed v. 
 
 217 ; see the V.-C,'s comnaents on i'x Prccec, L. K. 18 Eq. 192.
 
 2 GO EFFECT OF CONTRACT 
 
 Chap. VII. transported, it was held that his share was to be considered 
 ■ as realty, and that it was not forfeited to the Crown (i). 
 
 Excessive Where, on a sale by order of the Court, real estate is sold 
 
 sale by the jj-^ ^xcess of what is required to satisfy the purpose for 
 which the sale is directed, the surplus proceeds have been 
 held to retain the character of realty (j) ; but in a very 
 recent case {k) the propriety of this doctrine was questioned by 
 Sir George Jessel, M. R., who expressed it as his opinion that 
 " if a conversion is rightfully made, whether by the Court 
 or a trustee, all the consequences of a conversion must 
 follow, and that there is no equity in favour of the heir or 
 anyone else to take the property in any other form than that 
 in which it is found ; and that the sole question is whether 
 the estate has been rightfully or ^vl•ongf^lly sold " (/) : and 
 this has been followed by V.-C. Sir C. Hall in a later case, 
 where a mere order for sale was held to eftect a con- 
 version (m). 
 
 Sale of settled In cases of settled estate it has been held that acqui- 
 escence in a notice to treat by a railway or other public com- 
 pany, and negotiations as to the price, do not amount to an 
 equitable exercise by tenants for life of an absolute power of 
 appointment, so as to operate as a conversion of the estate 
 into personalty as against remaindermen claiming under the 
 limitations in default of appointment (??) : nor where the 
 estate is convertible at the request of a tenant for life is con- 
 version the necessary result of the money having been paid 
 into Court and invested in Consols on his application, and of 
 his having received the dividends (o). Of course even in the 
 case of an absolute owner, an agreement which, in anticipa- 
 tion of the possibility of land being taken by the company, 
 merely fixes the price of any land which may eventually be 
 
 (0 Re Harrop's Estate, 3 Drew. 726. 113. 
 
 0) Jcrmy v. Preston, 13 Sun. 356, (n) Morganv. Milman, 3 De G. M. 
 
 ;66 ; Coohe v. DeaUy, 22 Beav. 196. & G. 24. 
 
 (/u) <S7eecZv. Prcccf, L. R. 18 Eq. 192. {o) Re Taylor, 9 Ha. 596; Re 
 
 {I) L. R. 18 E(|. 197. Stewart, 1 Sm. & G. 32 j ife Horner, 
 
 [m) Dixon v. Arnold, L. E,. 19 Eq. 5 De G. & S. 483.
 
 ON RIGHTS OF PARTIES. 261 
 
 SO taken, is no conversion (p). But conversion is the neces- Chap. VII. 
 sary result of an actual binding contract for sale, although — - — — — 
 
 the landowner has in fact no option but to sell (q). Com- 
 pensation for severance, &c., is subject to the same rules as 
 purchase-money (/•). 
 
 A contract under a power of sale in a settlement revokes Effect of 
 
 1 . . -., , r- 1' r f 1 • • contract on 
 
 a subsistnig devise by the tenant tor hie, oi the revei'sion m prior devise. 
 fee over which he has a power of testamentary appointment ; 
 and, although the contract is not completed at his death, the 
 devisee is not entitled to the benefit of the vendor's lien for 
 unpaid purchase-money (s). 
 
 If, at the vendor's death there be a binding contract as Rights of 
 
 against the purchaser, but no binding contract have been presentatives 
 
 entered into by the vendor, the rights of his heir or devisee ""ntract^'^ ^^ 
 
 are, of course, unaffected ; but if in such a case the heir or binding only 
 
 purchaser. 
 
 devisee were to concur with the personal representative in 
 enforcing the contract, it would appear that it would cnuro 
 for the benefit of the latter. 
 
 If the contract were binding upon both parties at the time Events subse- 
 of the vendor's death, no subsequent act or matter can alter vendor's 
 the relative rights of his representatives (t) : so that, if the JeSlh "'"'''^ 
 purchaser subsequently act so as to lose his right under the 
 contract, the estate belongs in Equity to the next of kin of 
 the vendor (it). 
 
 If the contract (originally binding) be rescinded ur aban- Eifect of con- 
 doned by both parties in the lifetime of the vendor, there mutuaily're- 
 seems to be ground to contend, under the old law, that the ^^^^^^^"^ ''^'^'^^ 
 rights of the devisee are restored (x) : if, however, it were 
 held that the devisee could not take, the heir would be 
 entitled beneficially. 
 
 (p) Ex prtrte Walker, 1 Dre. 508. 6 Sim. 40. 
 
 (q) Re Manchester, dc., R. Co., I'd (w) fwrrc v. ^ojtv/o-, 5 l3cav. (>. 
 
 Beav. 365. (■»') S"g- 18^ ; but the point In 
 
 (t-) ,S'. C. doubtful, Kee 7 Ves, 558; 19 Ves. 
 
 («) GalcY. Gale, 21 Ee:iv. 340. 170. Sec, against the claim of tho 
 
 (() Bennett \. Lord Tanlervillc, 19 devipce, .^Inc/nw v. Andrew. 4W.lv, 
 
 Ye?. 179 ; and see Teblott v. Voules, 520.
 
 2G2 
 
 EFFECT OF CONTRACT 
 
 €hap. VII. 
 Sect. 5. 
 
 Effect of its 
 ceasing 
 during hia 
 life to bind 
 him : 
 
 If", during the vendor's lifetime, the purchaser alone abandon 
 the contract, or act so as to relieve the vendor from his 
 liability to convey the estate, it seems that the property 
 would be considered real estate at his decease (>J) ; but unless 
 the vendor have acquiesced in the vacation of the contract, 
 there would seem to be a difficulty in maintaining the rights 
 of the devisee against the heir; except in cases coming within 
 the new law : and it has been decided that, under the old 
 law, the contract operates as a revocation where the purchaser, 
 having paid part of the purchase-money, becomes bankrupt 
 before completion, and the vendor buys up his interest under 
 the bankruptcy (2). 
 
 or I he pur- 
 chaser. 
 
 If, during the vendor's lifetime, he himself abandon the 
 contract, or if, through want of title or for any other reason, 
 the contract, at the time of his death, be capable of being- 
 enforced only against and not by him, the right of the per- 
 sonal representatives would seem to depend upon whether 
 the purchaser do or do not choose to enforce specitic j^er- 
 formance (a.) ; the case being, in effect, similar to those in 
 which the purchaser has, ah initio, a mere option to pur- 
 chase. 
 
 Effect of 
 general devise 
 u[)on real 
 estate con- 
 tracted to be 
 sold : 
 
 to an infant. 
 
 A general devise, of all his real estates, by the vendor, 
 after the contract, will, iirimd facie, and in the absence of 
 any limitations or other matter inconsistent with such an 
 intention, pass the legal estate in the property contracted to 
 be sold (]j) : but a general bequest by the vendor of "all his 
 leasehold estates and securities for money," was held not to 
 pass the leaseholds, which at the date of the will he had 
 contracted to sell (c). Where the estate is devised to an 
 infant, the necessity for a suit and a decree of the Court is 
 
 iu) Sug. 191 ; 1 Jann. Wills, 46 c(! 
 
 SCfl. 
 
 (?) Andreio v. Andrew, 1 Jur. N. 
 S. 884 ; 3 Sma. & G. 130, affirmed on 
 appeal (L. J. Knight Bruce dlsscn- 
 ticntc), 2 Jur. N. S. 719 ; 8 De G. M, 
 
 &G. 336. 
 
 (rt) See 1 Jann. Wills, 46 et scq. 
 
 {b) Wall V. Bright, 1 Jac. & W. 
 494. 
 
 {c) ifoold V. Tcci'juc, 5 Jur. N. S. 
 116.
 
 ON RIGHTS OF PARTIES. 263 
 
 not superseded by the fact of the will containing- a devise of Chap, vii, 
 
 trust estates {d) ; and it is conceived that the same rule will 
 
 apply, where the estate descends on an incompetent heir. 
 
 Although the estate be devised expressly by name, the Of specific 
 
 . , devise. 
 
 devisee, as a general rule, takes merely as a trustee lor tlic 
 purpose of carrying out the contract, and the purchase- 
 money forms part of the personal estate {<') : but if the 
 contract is not to be completed until a date which 
 happens after the testator's death, the devisee is entitled 
 to the mesne rents and profits (/). Where a testator de- 
 vised, by special description, lands subject to a nicre option 
 of purchase, to A., not in fee, but for life, with remainders 
 over in strict settlement, it was held that the purchase- 
 money was subject to the same limitations as had been 
 declared of the lands {<j). It may be doubted, whether the 
 specialty of the description is a sufficient ground (A) for 
 distinguishing such a case from the earlier cases of Laives v. 
 Bennet (i), and Townley v. Bedwell (]>•) ; but such a distinc- ^ 
 
 tion may, it is conceived, be supported upon the ground that 
 the estate was devised in a manner inconsistent with the ^ 
 
 intention that the devisees were to take, not beneficially, 
 but merely for the purpose of effecting the sale. 
 
 And the law, as above stated, appears to be unaltered by I'^'^'i^ct of 
 
 1 Vict. c. 26. 
 
 the 1 Vict. c. 2G (/) ; which, however, removes all doubt as 
 to the devisee's right in cases where the contract is rescinded 
 
 [d) Purser v. Darhij, 4 K. & Jo. 2 De G. & S. 722 ; compare Boivcn v. 
 
 41, 43. As to costs of such a suit, Barhnc, L. II. 11 Ecj. 451. 
 
 vide infra, Ch. XIII. s. 9. (/t) See dictum to that effect iu 
 
 (c) Knollys v. Shepherd, 1 Jac. & Weeding v. Weediwj, 1 J. & H. 431. 
 
 W. 499, cited Thirtle v. Vavr/han, 24 (/) 14 Ves. 591. 
 
 L. T. 5. ^i 1 C"ox, 167. And see Collin;/- 
 
 (/) So heldhy Lord Selborne as M. wood v. Row, 3 Jur. N. S. 785. 
 
 B., in an unreported case of //H»?erv. (/) Farrcr v. Lord Wiatcrton, 5 
 
 Watson in May, 1874 ; see also Watts Bcav. 1 ; il/oor v. Eaisbcd; 12 Sim. 
 
 V. Watts, Ij. E. 17 Eq. 217. Under 123; Midland Counties U. Co. v. 
 
 the old law the contract for sale woidd Osiviu, 1 Coll. 74, 80 ; Ejc parte 
 
 have been an ademption of the devise. J/aukins, 1'3 Sim. 569; Gale v. Gale 
 
 (fj) Drant v. Vuusc, 1 Y & C. C. C. 21 Beav. 349. 
 680 ; see judgment. Emvss v. Smith,
 
 264 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. or abandoned by the vendor, or is not binding on him ; and 
 ^^'^^' ^' also is in favour of the devisee's beneficial interest in cases 
 
 similar to Knollys v. Shepherd (m). 
 Vendor's rpj^ vendor's interest under the contract is within the 
 
 interest is 
 
 AvUhin Mort- Statute of Charitable Uses (9 Geo. II. c. 36), and a bequest 
 ™*^° ' of it to a charity is void under the Act (n). So, is a like 
 bequest of a legacy charged on land (o). 
 
 Section 6. 
 
 Death of pur- 
 chaser before 
 completion : 
 its effect on 
 relative rights 
 of his real and 
 personal repre- 
 sentatives, 
 under old, and 
 under new 
 law. 
 
 (6). Death of imrcUaser before comx>letion ; its effect on 
 relative rights of his real and 'personal representatives, 
 under old, and. under neiu laiv. 
 
 Upon the death of the purchaser before completion, the 
 equitable ownership of the property contracted for (assuming 
 it to be freehold or copyhold of inheritance) vests in his real 
 representative, as quasi heir or quasi devisee ; and until the 
 Act amending Locke King's Act {p), he was prima facie 
 entitled to have the purchase-money paid or reimbursed to 
 himself, out of the personal estate {q) ; and this although he 
 was himself the vendor, and the purchaser's personal repre- 
 sentative (r) : and Locke King's Act (.s) did not deprive the 
 heir or devisee of his right to have the purchase-money paid 
 out of the personal estate (t) ; a vendor's lien for unpaid pur- 
 chase-money having been held not to be a sum charged on 
 land, by way of mortgage within the meaning of the Act {u) ; 
 but by the amendment Act {x), the word " mortgage " 
 is to be deemed to extend to any lien for unpaid purchase- 
 
 (m) Uhi supra; see Sug. 187, 191. 
 
 (n) Harrison v. Harrison, 1 Russ. 
 & M. 71. 
 
 (o) Brook V. Badlcy, L. R. 4 Eq. 
 lOe, affirmed L. E. 3 Ch. Ap. 672. 
 See Lucas v. Jones, L. R. 4 Eq. 73. 
 
 (p) See 30 & 31 Vict. c. 69. 
 
 (q) Fletcher v. Ashhurner, 1 Bro. 
 C. C. 497 ; 1 Wh. & T. L. C. 659 ; 
 Langford v. Pitt, 2 P. Wms. 629, 632 ; 
 Broonve v. Monck, 10 Ves. .^97, 611, 
 
 615. If the executor complete, and 
 take the conveyance in his own name, 
 he mil be a trustee for the heir or 
 devisee : Alleyn v. Allcyn, Mos. 262. 
 
 (>•) Coppin V. Coppin, 2 P. Wms, 
 291. 
 
 (s) 17 & 18 Vict. c. 113. 
 
 (<) Hood V. Hood, 3 Jur. N. S. 684. 
 
 (u) Barnwell v. Ircmon{/cr, 1 Drew. 
 & Sma. 255. 
 
 (a;) See 30 & 31 Vict. c. 69, sect. 2. 
 
 i
 
 k 
 
 ON RIGHTS OF PARTIES. 265 
 
 monoy upon any lands or hereditaments purchased by a tes- t)liap. vil. 
 
 tator (y). The heir or devisee has the same disposing power 
 
 over the estate as his ancestor or testator had (z). 
 
 Where a trustee for sale bought the trust estate at an 
 auction, and died intestate before completing the purchase, 
 it was held that his heir had no cr^uity as against the next of 
 kin to have the purchase-money paid out of the personal 
 estate (a). 
 
 As in the case of the vendor, so also in the case of the Relative 
 
 rights of real 
 
 purchaser, the question between real and personal repre- and personal 
 sentatives is this, viz. : whether at the time of his decease, tf^es'cicpend 
 he was, either absolutely or conditionally, under a binding "^^ his liability 
 
 ' ^ '' ° to perform 
 
 contract to purchase : if absolutely bound, or if conditionally contract. 
 or optionally bound, and the condition upon which the 
 liability was to become absolute be subsequently fultilled, 
 or the vendor's option to sell be declared, the real represen- 
 tative is entitled (h). And his rights will not be affected 
 by anything subsequent to the death of the purchaser : 
 so that if by such subsequent matter, {e.g., the felling of 
 ornamental timber by the vendor,) the contract cease to be 
 binding on the purchaser's representatives {c), or be actually 
 rescinded by the vendor on the gi-ound of delay after the pur- 
 chaser's decease (d), or in exercise of a power reserved by the 
 contract (e), his real representative is nevertheless entitled 
 to the purchase-money. And, it is conceived, the fact of the 
 contract not being binding on the vendor at the time of the 
 purchaser's death, does not affect the above rules. 
 
 If, however, the contract gave the purchaser a mere option, if not liable 
 which he had not declared at the time of his decease ; or, if, eentatives h^d 
 
 (y) Vide infra, Ch. XIV. sect. 9. and B. 265, 281, 
 
 (z) See JyflTtjf/orcZ V. Pt'«, 2 P. Wms. (r) 1 Jarm. on Wills, 49; and see 
 
 629. Broome v. Monck, 10 Ves. 597, 604. 
 
 (a) Ingle y. Richardi!,2S Beav.ZGl. (d) Whlitakcr \. Whittaka; 4 13ro, 
 
 (6) Buckmastcr v. Harrop, 13 Vts. C. C. 31 ; and see 10 Ves. 509. 
 
 456 ; and see Earl JioAlnor v. Shafto^ (e) Hudson v. Cook, L. R., 13 Eq., 
 
 U Vea. 484 ; Savaye v. Carroll, 1 Ba. 417
 
 2C6 
 
 EFFECT OF CONTRACT 
 
 Chap. YII. 
 Sect. 6. 
 
 no claim du 
 his jiersonal 
 estate. 
 
 tliroiigh want of title in the vendor or any act or omission on 
 his part, the agreement, although intended to be binding on 
 both parties, was, at the time of the purchaser's death, bind- 
 ing only upon the vendor, the real representative of the pur- 
 chaser has no claim upon the personal estate for the unpaid 
 purchase-money ; and a bill filed Ijy him against the personal 
 representatives and the vendor, will be dismissed (/) : but, 
 upon principle, it would seem that, if he chose to pay for the 
 estate out of his own pocket, he might enforce the contract 
 against the vendor unless the clause of option were so 
 worded as to be confined to the purchaser individually. 
 
 Where a defective title was not made good until after the 
 purchaser's death, though the defect might have been 
 remedied in his lifetime, his real representative was held 
 entitled to have the purchase-money paid out of the personal 
 estate {(j) ; so, where the owner of a piece of land contracted 
 with a builder for the erection of a house upon it, but died 
 intestate before it was completed, his heir was held entitled 
 to have the house completed at the expense of the personal 
 estate ; even though the contract was not enforceable in 
 Equity (A). 
 
 Relative _ The relative rights of the heir and devisee of the purchaser, 
 
 and devisee in cascs falling within the old law, seem to depend on the 
 
 under old 
 law. 
 
 followino- rules : — 
 
 Eight of ^ purchaser, upon entering into the contract, became en- 
 
 devisee de- -^ _ 
 
 pended upon titled to dispose, by will, of all his rights under it (/). If, 
 
 (/) Oreen \. Smith, 1 Atk. 573 ; 
 Broome V. Mond; 10 Ves. 597 ; Col- 
 lier V. Jenl-ins, 1 You. 295 ; Sug. 
 193. But the de-visee of an estate not 
 contracted for, but only directed by 
 the will to be purchased, is entitled, 
 if the purchase cannot be effected, to 
 have the money which the testator so 
 appropriated laid out in the purchase 
 of another estate ; see Coventry v. 
 Coventrtj, 2 Atk. pp. 366, 369 ; Broome 
 
 V. Mond; 10 Ves. 602. 
 
 (y) Garnett v. Acton, 28 Beav. 333. 
 
 (It) Cooper V. Jarman, L. R. 3 Eq. 
 98. See Brace v. Wehnert, 25 Beav. 
 348. See as to costs of carrying out 
 agreement for partiti<in on the death 
 of a co-owner Re Tann, L. R. 7 Eq. 
 434 ; and as to building contracts 
 and whether they are enforceable in 
 Equity, vUle infra, Ch. XVIII. s. 1. 
 
 (/) Atcherlei/ v. Vernon, 10 Mod,
 
 ON RIGHTS OF PARTIES. 267 
 
 however, the contract were not, at the date of the will, bind- Ghap. VII. 
 ing upon the vendor, (either absolutely or suljject to a 
 
 condition or option subsequently fulfilled or declared,) it bindin^^a^'°° 
 conferred on the purchaser no enforceable rights; and his vendor, 
 will was therefore inoperative : and any interest subse- 
 quently acquired liy hiui in the property descended on his 
 heir (/.•). A clear indication, however, of the testator's But will 
 
 , . , , . 1 might put bitn 
 
 intention that the devisee should take, either the particular to liis election, 
 lands, or, generally, all subsequently purchased lands, was 
 sufficient to put the heir to his election between the 
 descended land and any provision made for him by the 
 will {I) : and this even as regards a will coming into opera- 
 tion before the 3 & 4 Will. IV. c. 106, s. 3 ; although in such 
 a case the heir in fact took by descent and not by devise (m). 
 If, however, at the date of the will, the contract were bind- Devisee might 
 
 , . be entitled to 
 
 ing as against the vendor, the pui'chaser s devisee became estate, but 
 entitled to the benefit of it (if remaining unperformed at f^ u**^ ^^^ 
 the purchaser's decease) ; but his right to have the purchase- 
 money paid out of the personal estate depended, as above 
 shown, upon the question whether the contract were 
 binding as against the purchaser at his decease ; and, if this 
 were so, it is conceived that the devisee would (as against the 
 heu*), be entitled, although the contract were not binding 
 upon the purchaser at the date of the will. If the contract Cases in M-hich 
 
 T • ^ I'TP'i conveyance to 
 
 were performed l^y the vendor m the purchaser s liletime by purchaser 
 a conveyance to the latter in fee (n), or to a trustee for ^^^^^^^^ 
 him (o), (or, perhaps, to the common uses to bar dower in his 
 favour, in cases where the contract was for a conveyance to 
 him or such uses as he should appoint (2>),) the devisee was 
 
 518, 528; Broome v. Mond; ubi properlyreceives; (rVeenwocw^ v. Pcnwy, 
 
 euprd ; Rose v. Cunynyhame, 11 Ves. 12 Beav. 403. 
 
 650; Gaskarth v. Lord Lowther, 12 [m) Schroder v. Sclirockr, Kay, 57 S ; 
 
 Ves. 107 ; Sug. 183, 184 ; Moryan v. affd. 3 E(i. R. 97. 
 
 Holford, 1 Sm. & G. 101. (») See Parsons v. Freeman, 3 Atk. 
 
 (k) liosev. C'lnnynfjhamcitbi svpia; 741, 749; Ifarmood v. Oylnndcr, 6 
 
 Duckle V. Ba'incs, 8 Sim. 525. Ves. 199, 220 ; S. C, 8 Ves. 106, 
 
 (1) ThcUimon v. Woodford, 13 Ves. 127. 
 
 209 ; Churchman v. Ireland, 4 Sim. (o) See Jcnhinson v. Watts, Lofft, 
 
 250; 1 Russ. & M. 250; but the 609, 615; Rose v, Cunynyhame, 11 
 
 legatees have no lien on the land for Ves. 554. 
 
 Buch part of the personalty as he im- ip) Sug. 183.
 
 268 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 Sect. 6. 
 
 Effect of 
 
 general 
 
 devise. 
 
 Republica- 
 tion. 
 
 entitled in Equity; and the legal estate descended to the 
 heir as his trustee. A conveyance to uses to bar dower, 
 operated, however, as a revocation where there was either 
 no written agreement (q), or an agreement to convey in 
 fee (r), or even an agreement to convey to the purchaser, 
 his heirs, a/piiointees or assigns (s) : the doctrine, however, 
 is disapproved of by Lord St. Leonards (t), and although 
 apparently well settled {\i), seems open to much observation. 
 
 Lands merely contracted for, might pass, along with lands 
 contracted for and conveyed, under a general devise of all 
 lands purchased by the testator {x) ; and lands recently pur- 
 chased and conveyed, passed under a general devise of land.s 
 contracted for {y) ; and copyholds surrendered to the use of 
 the copyholder's will, passed under a general devise of copy- 
 hold estates contained in a prior will and not subsequently 
 republished {z). 
 
 The execution, according to the Statute, of a subsequent 
 codicil (rt), although purporting to deal only with personal 
 estate, was a republication of a prior will (6) ; and a will 
 spoke, for general purjDoses, from its last republication (c) : 
 not so as to alter the meaning of expressions evidently re- 
 ferring to the original date or devise ((/) ; but so as to extend 
 
 {q) Ward V. Moore, i Madtl. 368 ; 
 Plou-dcn V. Hyde, 1 Sim. N. R. 171 ; 
 reversed on another point, 2 De G. 
 M. & G. 684. 
 
 (»•) Iiawli)is V. Burgis, 2 Ves. & B. 
 382. 
 
 («) Bullin V. Fletcher, 1 Ke. 369 ; 
 2 M. & C. 432. 
 
 (0 Sug. 183, 184 ; 2 Dni. & W. 
 497. 
 
 ill) " I cannot say I see anything 
 like a doubt on the authorities." Per 
 Lord Cottenham, 2 M. & C. 441 ; 
 Schroder v. Schroder, Kay, 578. 
 
 {x) Ateherley v. Vcrvon, 10 Mod. 
 526 ; Marston v. Roe, 8 Ad. & E. 16, 
 63, and cases cited. 
 
 {ij) St. John V. Bishop of Winton, 
 Cowp. 94. 
 
 {z) Att.-Gen. v. Vi'jor, 8 Ves. 266; 
 
 see now 1 Vict. c. 26. 
 
 (a) Ateherley v. Vernon, 10 Mod. 
 518 ; Com. E. 381. 
 
 {h) Barnes v. Crowe, 1 Ves. J. 486 ; 
 Pvjott V. Waller, 7 Ves. 98 ; Guest v. 
 Willasey, 12 Moo. 2 ; but see Joiectt 
 V. Board, 12 Jur. 933. 
 
 (r) Guest V. Willasey, 12 Moo. 2 ; 
 Ihdme v. Ileygate, 1 Mer. 285 ; Rowley 
 V. L'ytov, 2 Mer. 128; Gooddtk v. 
 Meredith, 2 Mau. & S. 5, 14. 
 
 (d) Strathmore v. Bowes, 7 T. E,. 
 482 ; Movypevvy v. Bristow, 2 Euss. 
 & M. 117; Ashley v. Wangh, 4 Jur. 
 372 ; Hughes \. Turner, 3 Myl. & K. 
 666 ; see Yarnold v, Wallis, 4 Y. & 
 C. 160 ; iJoe v. Walker, 12 M. & W. 
 591, 601 ; Doe v. Hole, 15 Jur. 13, 
 Q. B.; 20 L. J. 57 ; Stiiwell v. Mcllereh, 
 20 L. J. 356, 361, V.-C. C,
 
 ON RIGHTS OF PARTIES. 269 
 
 a general devise of all lands within a specified locality, to Chap. vil. 
 lands subsequently purchased within the same locality (e). — — 
 
 In cases of wills fallmsr withm the operation of the late Effect of 
 
 ° , , . 11- 1 Vict. c. 26, 
 
 Act, the above questions between the heir and devisee are on relative 
 
 settled in favour of the latter, by the provision which makes ^devLee" of 
 
 the devise operate upon the testator's interests as they exist purchaser, 
 at the time of his death. 
 
 It has, however, been held that property will not, by virtue Where spe- 
 
 r- • n ^ • £• -u' \ cific descrip- 
 
 of the Act, pass under words ot spocihc description, wnicn, ^ion is ap- 
 though applicable at the death, were inapplicable at the date £e^i''je\tjj, 
 of the will (/'); thus a devise in 1844 of "all my Quendon but not at 
 Hall estates in Essex " (parol evidence being admitted to 
 show what was comprehended in that description at the date 
 of the will), was held insufficient to pass certain small addi- 
 tions to the property, which had been contracted for, but not 
 actually purchased (g) : but where there was a specific 
 devise of " my mansion and estate called Cleeve Court," 
 followed by a residuary devise, and the testator at the date of 
 his will had contracted to buy an adjoining estate which was 
 afterwards conveyed to him, and he subsequently bought 
 other small properties, it was held by V. C. Malins (parol 
 evidence being admitted to show what was comprehended 
 in the description at the date of the will and the death), that 
 the subsequently acquired properties passed under the 
 specific devise (It) ; so where there was a specific devise of 
 " all my messuage partly freehold and partly leasehold, 
 No. 3, C. Street," followed by a residuary devise, and the 
 testator subsequently purchased the reversion in fee of the 
 leasehold portion, it was held that the whole messuage 
 
 (c) Barnes v. Crowe, 1 Ves. J. 436. tion, a. Bi ; and Wilson v. Eden, 5 
 
 (/) Emuss V. Smith, 2 De G. & S, Exch. 752, 706. 
 722 ; and see Cole v. Scott, 1 Mac. & (f/) Webb v. Bynff, 1 K. & Jo. 580, 
 
 G. 518 ; Doufjlas v. Douglas, Kay, sed quccrc. 
 
 400 ; a Toole v. Browne, 3 El. & B. {h) Castle v. Fox, L. R. 11 Eq. 542; 
 
 572 ; but see War/staff v. W(i{/stfiff, and see the V.-C.'s comments on Cole 
 
 L. R. 8 Eq. 229 ; and, as to rejniblica- v. Scott, and Corbie v. Bynf/.
 
 270 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. 
 
 Sect. G. 
 
 passed by the specific devise (/), and the use of the pronoun 
 " my," in the description of the thing given, is not sufficient 
 evidence of an intention that tlie will shall not speak as 
 from the date of the death (k) : nor, in the case of a residuary 
 gift, does the adverb " now " always have that effect {!). 
 
 Contract not Where a will, under the old law, bore date only a few days 
 again^heir! before the conveyance, the Court refused to presume the 
 existence of a binding contract prior to the will, even although 
 for a long period no claim had been made by the heir (m). 
 
 Effect, iintler 
 old law, of 
 purchase of 
 fee by termor 
 
 and under 
 1 Viet. c. 2G. 
 
 Under the old law, upon a binding contract for purchase 
 of the inheritance by a person possessed of a beneficial term 
 for years, the term, although specifically bequeathed by a 
 prior will, became attendant on the inheritance ; so that, on 
 the death of the purchaser, even before conveyance, his 
 leo-atee of the term was merely a trustee for his heir (/i) : the 
 intervention, however, of any intermediate estate, unless 
 held in trust for the purchaser (o), would seem to prevent 
 the operation of the rule Q:») : and the rule that the term 
 became attendant was merely one of presumption, which 
 might be rebutted by evidence of a contrary parol declara- 
 tion by the purchaser (q). 
 
 It seems probable that, in cases governed by the new law, 
 a contract for purchase, not completed by conveyance, would, 
 in Equity, defeat (as before) the rights of a party claiming 
 the term under a general bequest ; Ijut would not (except in 
 
 (t) Miles V. Miles, L. E. 1 Eq. 462 ; 
 Cox V. Bennett, L. E. 6 Eq. 422 ; and 
 see Hilo7i v. Ilihon, 9 Jur. N. S. 511 ; 
 re Mklland R. Co. 34 Beav. 525. 
 
 (k) Miles V. Miles, uM siqmi. As to 
 a residuary devise being still specific 
 as under the old law with reference to 
 the payment of debts, see Ilensman v. 
 Fryer, L. R. 3 Ch. Ap. 420 ; Gibbitis 
 V. Eyden, L. R. 7 Eq. 371. Lanee- 
 field y.Ifjgulden, L. E. 10 Ch. Ap. 136, 
 reversing V. C. B., L. E. 17 Eq. 556 ; 
 
 and ride infra. 
 
 (I) Way staff v. War/staff, L. E. 8 
 Eq. 229 ; and see 34 Beav. 527. 
 
 (m) CattJirow v. Fade, 4 De G. & 
 S. 527. 
 
 (n) Gulton v. Hancoel; 2 Atk. 425 ; 
 Capel V. Girdler, 9 Ves. 509. 
 
 (o) Whitchurch v. Whitchurch, 2 
 P. Wms. 236. 
 
 (p) Scott V. FoihoulUt, 1 Bro. C. 
 C. 69 ; 9 Ves. 509. 
 
 (q) Siig. 625.
 
 ON RIGHTS OF PARTIES. 271 
 
 cases coming within the operation of the 8 & 9 Vict. c. 112,) Chap, vii, 
 
 aftect a specific legatee of the term : but even a specific . ^1 1 . 
 
 legatee would lose the l)enefit of the bequest, if the term were 
 actually merged by a conveyance of the fee to the testator, 
 or became attendant on the inheritance, or satisfied and 
 merged under the Merger Act (/•). 
 
 It need scarcely be observed, that where there is an evident Merger 
 intention that tlie term shall l)e kept on foot, there is no pre- p^i-esunied. 
 sumption of merger : as where the owner in fee purchases an 
 existing lease, and has it assigned in trust for him, his exe- 
 cutors, (Ldminlsfrators, and assir/iis (s) ; or, where the owner 
 of the leasehold interest, on purchasing the reversion, takes 
 the conveyance in the name of a trustee, and expressly 
 declares that the term shall not merge (t). Where the 
 husband is entitled in fee, and the term comes to the wife, 
 there is no merger during the wife's life (u). 
 
 (7.) As to the effect of the contract in various special cases. Section 7. 
 
 If a mortgagee, having agreed to purchase the equity of f^J^^ of ^the 
 
 redemption, proceed to enforce his legal title by ejectment, contract in 
 
 . . various special 
 
 the existence oi the contract will, unless he have improperly cases. 
 
 delayed to enforce it Ox), be a ground for refusing relief to ^J^oytg^gee 
 
 •' \ / o o contracting 
 
 the mortgagor under the 7 Geo. II. c. 20 (?/). to purcha.se 
 
 may enforce 
 his legal title. 
 
 It has been held, that the fact of a mortgagee, with power Contract for 
 
 of sale, having contracted to sell part of the morto-aged ^^^° ^^ ™,"'"*" 
 
 > o -i o & gagee under 
 
 estate for a sum exceeding the amount due on the security, power, 
 is no ground for restraining him from bringing an action for 
 recovery of the mortgage debt (z). 
 
 An agreement by A., a tenant in possession, to purchase of Agreement by 
 
 B., is a sufficient lyrimd facie evidence of B.'s title to enable ^^^^^' 
 
 (}•) But see Miles v. Miles, L. R. 1 210 ; aif J. L. 11. 2 Ch. Ap. 138. 
 Eq. 462, et fiucere. (u) Jones v. Bavies, 8 Jur. N. S. 592. 
 
 (s) Gunterv. Gunter, 23 Beav. 571 ; (x) Slinner v, i>tacey, 1 Wills. 80. 
 
 Ti/rrioJdtt v. Tyrrwldtt, 32 Beav. 24 1 ; (//) Goodtitlc v. Pope, 7 T. 11. 185. 
 
 but see Sug. 625. (:) Willcs v. Levett, 1 De G. & 
 
 {t) Bclaney v. Belaney, L. E, 2 Eq. 392.
 
 272 
 
 EFFECT OF CONTRACT 
 
 Chap. VII. hiin, if the contract have gone oft', to sustain an action of 
 __!ll_l_ ejectment (a). 
 
 Agreement 
 for purchase 
 of lease, and 
 possession 
 taken. 
 
 Where the assignee of a lease agreed to sell it, and it was 
 stipulated that the purchuser should not be entitled to an 
 assignment, and he entered and retained possession until the 
 end of the term, the latter was held bound, in Equity, to 
 indemnify the original lessee, although no party to the agree- 
 ment, against breaches of covenant committed during such 
 possession (6). 
 
 Liability of 
 equitable as- 
 signee (if a 
 lease. 
 
 A person who has become the equitable owner of a lease, 
 by contract between himself and the lessee, but to whom no 
 leo-al assio-mnent has been executed, is not liable to the lessor 
 for rent accrued, or breaches of covenant committed, during 
 the time when he was in possession (c). The decision in this 
 case was rested on the general ground that the relation of 
 landlord and tenant was a purely legal one ; and the circum- 
 stance that the equitable assignee had parted with the 
 property does not appear to have been considered material. 
 
 Agreement 
 by lessor for 
 purchase of 
 underlease. 
 
 Agreement 
 for sale by 
 assignees of 
 bankrupt. 
 
 Where a lessor becomes the equitable assignee of an under- 
 lease, he incurs, in Equity, the obligation of performing the 
 covenants therein contained ; and cannot set up their non- 
 performance as a ground for refusing performance of a 
 covenant in the original lease (d). 
 
 Under the old law, when assignees of a bankrupt contracted 
 to sell a lease, this fixed them as assignees of it, although the 
 contract was subsequently abandoned ; unless it were shown 
 that it could not have been enforced (e). Where the assignees, 
 
 (a) Doe V. Burton, 16 Q. B. 807. 
 
 (b) Close V. Wilho-force, 1 Beav. 
 112 ; see Sanders v. Benson, 4 Beav. 
 350 ; and Moore v. Greg, 2 Ph. 717, 
 721, 725 
 
 (c) Cox V. B{isho2^, 3 Jur. N. S. 
 499 ; 7 De G. M. & G. S15 ; see 
 jiulgment ; and compare Wi-it/ht v. 
 Pitt, L, R. 12 Eq. 408, case of mining 
 
 lease to trustees for a public company 
 which repudiated the lease, but was 
 nevertheless held liable in Equity to 
 the lessor. 
 
 {(/) Jenkins v. Portman, 1 Ke. 435 ; 
 and see 8 De G. IM. k G. 819 ; Noh'S 
 V. Gilbon, 3 Drew. 681. 
 
 (e) Hustings v. Wilson, IIolt'3 N 
 r. C. 290,
 
 ON lUGHTS OF PARTIES. 273 
 
 twelve years after the date of the bankruptcy, assigned the Chap. vii. 
 
 lease, having in the meantime done nothing to adopt it, it ' ^ ' ' 
 
 was held that this was a sufficient acceptance of the lease ; 
 but that it was a question for a jury wliether tlicy liad 
 accepted it within a reasonable time if). 
 
 Under the Act of 1860, the trustee of the bankrui:)t, who Agreement 
 fills the place of the assignee under the old law, may, AN'liere tmJtee of 
 the property acquired by him under the Act consists of l^jjer^he new- 
 land of any tenure burdened with onerous covenants, or of law. 
 any property which is unsaleable or not readily saleable, by 
 writing under his hand, disclaim such propei-ty, notwith- 
 standing that he has endeavoured to sell the same, or has 
 taken possession thereof, or has exercised any act of owner- 
 ship in relation thereto {<j). The Act prescribes a limit of 
 time within which the trustee may be compelled to exercise 
 this right of disclaimer (It) ; and in cases falling under the 
 new law, a contract for sale by the trustee is not an accep- 
 tance of the lease, and the question whether he has accepted 
 it within a reasonable time cannot arise. 
 
 A contract for sale by a joint-tenant seems to l)e, in Equity, Joint tenancy. 
 a severance of the joint-tenancy {I). 
 
 The co-ownership of a common right, as, e.g., of fishing Co owmership 
 on a lake, is not a jum 'tnaividuuin, even where merely j-jgi^t 
 appurtenant to land ; but any one of the joint owners may 
 alien his right, either wholly or in part, though not so as to 
 prejudice the enjoyment of his co-owners (/). 
 
 A contract for sale by a single man, was, in cases subject Dower, 
 to the old law of dower, sufficient in Equity to exclude the 
 
 (/) iVacklci/ V, Pattendcn, 7 Jnr.l^i. (i) Brown v. Ilaindle, 3 Ves. 256, 
 
 S. 1055. 257 ; Frewen v. Rtlfe, 2 Bro. C. C. 
 
 {(j) 32 & 33 Vict. c. 71, s. 23, and 220, 224 ; Kingsford v. IhU, 2 Oif. 
 
 vide supra, p. 254. App. 1. 
 
 (7() Sect. 24 ; and see Bankruj)tcy {k) MenrJes v. Macdonahl, 2 Jur. N. 
 
 niles, 1871, r. 28 ; and Ex parte Loic- S. 575. 
 nng, L. E. 9, Ch. Ap. 580. 
 
 vor,. I. T
 
 27-i EFFECT OF CONTRACT 
 
 Chap. VII. claim to dower of a wife whom he mamed before the con- 
 ^^^^- ^- veyance (0- Whether the contract by a mortgagee in fee for 
 Under old law. the purchase of the equity of redemption let in his wife's 
 dower, seems to be somewhat doubtful (»i) : but such a con- 
 tract does not appear to merge the security as in favour of 
 mesne incumbrancers (n). 
 
 In one case, where the purchaser elected to take the estate 
 with a compensation, specific performance of the contract 
 was enforced against a vendor, whose wife, entitled under 
 the old law, refused to release her right of dower (o). 
 
 tinder new Under the new law {'p), the contract for purchase lets in 
 
 ^'^'^' the dower of the purchaser's wife ; but she may be deprived 
 
 of it in any of the various ways specified in the Act (q) : as 
 regards copyholds, the right to freebench does not attach until 
 actual admittance (r). On the other hand, the contract for 
 sale binds the dower of the vendor's wife, unless he have 
 before marriage agreed not to bar her dower («). 
 
 Legacy duty. 
 
 It has been thought that in the case of a mere power of 
 sale under a will, where the proceeds of sale are to remain 
 personal estate, the contract would let in the Crown's claim 
 to legacy duty (t) : but according to a modern decision of the 
 House of Lords this is so only when the power is so worded 
 as, in the events which occur, to be in effect equivalent to a 
 trust ; and a mere discretionary power of conversion for the 
 convenience or benefit of the parties beneficially interested, 
 does not let in the duty, although a sale be actually eftected (ii). 
 
 (l) Lloyd V. Lloyd, 2 Con. & L. 592. (</) Sects. 2 to 10 : see sect. 11. 
 
 (m) See and consider Kniyht v. (?•) Smith v. Adams, 18 Jur. 968 ; 
 
 Frampton, 4 Beav. 10 ; and Fluch v. 18 Beav. 499 ; 5 De G. M, & G. 712 ; 
 
 Lonrjmate, 8 Beav, 420. but see -SpJ/cr v. Hyatt, 20 Beav. (321, 
 
 (w) Bailey v. Rirhardson, 9 Ha. where the intestate appears not to 
 
 734 ; et ride infra, Ch. XV. s. 7. have been admitted. 
 
 (o) Wilson V. Williams, 3 Jur. N. (s) Sect. 11. 
 
 S. 810. (0 See Att.-Gen. v. Simcox, 1 Ex. 
 
 (p) 3 & 4 Will. IV. c. 105, which 749 ; and see 6 Exch. 43 ; and Att.- 
 
 affects only women married after Gen. v. Manrjles, 5 M. & W. 120. 
 
 January 1st, 1834, s. 14, and does («) Adc.-Gen. y. Smith, IM-o-co^.^. 
 
 not affect freebench. L. C. 760.
 
 ON RIGHTS OF PARTIES. ^(0 
 
 So, where the proceeds are to be reinvested in land, so that Chap. VII. 
 the property, although in fact converted, will remain land in — '- — '— — 
 
 contemplation of a Court of Equity, it has been decided tliat 
 no duty attaches, although a sale be actually effected, and the 
 will contain a power of interim investment in the funds or 
 on mortgage, and the parties elect to take the propei'ty as 
 money {x). And, on the other hand, an absolute trust for 
 sale, although not acted on, lets in the duty (//) : the test of 
 liability being the cquitaljle nature of the property at the 
 time of the death. It has l)een held, that where a will 
 contains a discretionary power of sale, and a sale is made Ijy 
 the Court, the question of liability depends upon whether 
 the Court acted by directing the trustees to exercise their 
 discretionary power, or sold under its own general juris- 
 diction {z) ; the duty not attaching in the latter case : but, as 
 we have seen {a), the present doctrine seems to be, that 
 a mere discretionary power, althougli acted on, does not let 
 in the claim to duty. 
 
 By the Succession Duty Act (I)), the duty imposed by the Succession 
 Act is made a first charge on the property ; and every person 
 in whom the same is vested by alienation or other derivative 
 title at the time of the succession (c) becoming an interest in 
 possession, is personally accountable to the Crown for the 
 duty payable in respect of such succession ((?) : but every 
 receipt and certificate, purporting to be in discharge of the 
 whole duty payable for the time being in respect of any suc- 
 cession or any part thereof, exonerates a hondjide purchaser 
 for value, and without notice, from such duty, notwithstan- 
 ding any suppression or misstatement in the account, or any 
 insufficiency in the assessments; and no bond fide purchaser 
 for value under a title, not appearing to confer a succession, 
 
 (x) Heale v. Knvjht, 22 L. J. 358 ; [a) SnimX, p. 274. 
 
 Mules V. Jenniiifjs, 8 Exch. 830, {h) 16 & 17 Vict. c. 51. 
 
 (.V) Att.-Gm. V. Holford, 1 Pr. 426 ; (r) As to what is a succession, see 
 
 , Williamson \. Adv.-Gcn. 10 cl. & F. ]YilcoXY. Smith, Wyrc^f.iO; Re Lore- 
 
 1 ; and see Att.-Gen. v. Brunning, 8 hire, 4 De G. & Jo. 340 ; Re Jenlinson , 
 
 H. L. C. 243. 24 Beav. 64. 
 
 {£) Uohson V. Neale, 8 Exch. 368 ; {d) See Sects. 42, 44. 
 17 Beav. 178. 
 
 T 2
 
 270 EFFKCT OF CONTllACT 
 
 Chap. VII. is subject to any duty which may be chargeable upon the 
 
 ^^^^' ^' property by reason of any extrinsic circumstances of which 
 
 he has no notice at the time of his purchase {e). In one case, 
 
 where it was douljtful whether succession duty <>r legacy 
 
 duty was payable, a certificate from the Inland Revenue 
 
 Office that the latter duty had been paid, was held to have 
 
 discharged the land (/). The donee of a general power of 
 
 On appoint- appointment under a disposition taking effect upon the death 
 
 n.ent under a ^£ ^ person dvino- after the commencement of the Act is 
 
 general power. j i J o 
 
 to be deemed entitled, at the time of his exercising such 
 power, to the property or interest tliereby appointed as a 
 succession derived from the donor of the power ; and the 
 appointee under a limited power of appointment under such 
 a disposition, who takes any property by the exercise of 
 such a power, is to be deemed to take the same as a succession 
 from the person creating the power as predecessor ((/). The 
 Act does not expressly provide how the succession of an 
 appointee, under a (jeneral power of appointment, which 
 has taken effect on a death happening after the commence- 
 ment of the Act, is to be treated as derived ; but the Com-t 
 of Exchequer has held, that in such a case the interest of 
 the appointee is to be taken as derived from the donee of the 
 power (It). Consistently with the above-mentioned rules as 
 to legacy duty, the Succession Duty Act provides, that the 
 interest of any successor in moneys to arise from the sale of 
 real property (which includes leaseholds) (/) under any trust 
 for the sale thereof, so far as the same are not chargeable 
 under the Legacy Duty Acts, shall be deemed to be personal 
 property chargeable with duty under the Succession Duty 
 Act ; but, if subject to any trust for the reinvestment 
 thereof, such moneys are to be deemed real property, and 
 
 (e) Sect. 52. 224, and cases there cited ; and com- 
 
 (/j Earl Howe v. Earl of Lklifidd, pare In re Barker, 7 H. & N. 109 ; 
 
 L. E,. 2 Ch. Ap. 155 ; affirming M. R. A It. -Gen. v. Floi/er, 9 H. L. Ca. 477 ; 
 
 L. R. 1 Eq. 641. and generally on the Act, see Jihif/ v. 
 
 ig) Sect. 4 ; and see lie Lovelace, 4 Jarman, L. R. 14, Eq. 357 ; and the 
 
 De G. & Jo. 340 ; 28 L, J. Ch. 489 ; comments in that case on Att.-Gen, v. 
 
 Re Wallop's Trust, 1 De G. J. & S. Gcll, 3 H. & C. 615. 
 
 6.56. (!) See sect. 1. 
 
 {It} Att.-Gai. V. Uj^ton, L. R. 1 Ex.
 
 ON RIGHTS OF PARTIES. 2/7 
 
 chargeable with duty as such (j). In the case of settled Cliap. vii. 
 property, j)Owers of sale, exchange, and partition may still be — '- — '— — 
 
 exercised, and the sale moneys or properties received in sub- 
 stitution or severalty l^ecome liable to the duty (Jc) ; and it has 
 even been held that Avhen an estate was settled subject to a 
 jointure (the cesser of which would involve the payment of 
 duty), and with the concurrence of the jointress, was sold by 
 the trustees of the settlement in exercise of a power of sale 
 therein contained, the liability to succession duty was 
 shifted from the land to the money ; although the power of 
 sale did not override, but was overridden by, the jointure (/). 
 
 The following points which have arisen on the Act, in Cases on the 
 
 . •Pi- Succession 
 
 addition to those noticed above, are deserving oi attention, duty. 
 
 On the sale of a reversion, or of an estate subject to a 
 
 periodical charge, the duration of which depends upon a 
 
 life or lives, the purchaser is, as between himself and the 
 
 vendor, liable to bear the duty, unless there is an express 
 
 stipulation to the contrary in the contract (m). In the 
 
 decided case, the vendor was a trustee with power of sale ; 
 
 but the decision was Ijased on the general ground that the 
 
 purchaser had bought the right to succeed on the death of 
 
 the tenant for life, and that this carried with it the tax on 
 
 the succession. In the common case of a tenant for life On sale by 
 
 T ., • ,^ i - £■ •> • tenant for 
 
 and remainderman conveying the property in tee, it remains \ii^ and 
 liable in the hands of the purchaser to the payment of the i"e"iai"'-^er 
 duty on the death of the tenant for life. The Act, however, 
 gives the commissioners a discreti(jnaiy power to commute 
 the duty {n) ; and the purchaser should either see that this 
 is done before the completion of his purchase, or insist on a 
 sufficient indemnity from the remaindermen or reversioners. 
 As between themselves and tlie purchaser, the lialdlity of 
 these parties to commute the duty would seem to depend upon 
 whether the purchaser bought with notice of the state of 
 the title being such as would prima fade involve the 
 
 (j) Sects. 29, 30. Ch. Ap. 501. 
 
 {k) Sect. 42. ("0 Cooper v. Tnuhy, 28 Beav. 191. 
 
 (/) Dagdnle v. Mtadous, L. R. G (/() Sect. 41.
 
 278 EFFECT OF CONTRACT ON EIGHTS OF PARTIES. 
 
 Chap. VII. liability to the duty. If a tenant in tail in remainder bars 
 ^^^*- ^- the entail, and re-settles the property in his own favour, he 
 must, on the death of the tenant for life, pay the same duty 
 as if he had taken under the original settlement ; but if, on 
 disentailing the property, he absolutely alienates it, the 
 liabihty is shifted on to his purchaser (o). The appointee 
 imder a general poAver of appointment contained in a 
 British settlement, which is exercised by will, is liable to 
 the duty, notwithstanding the foreign domicile of the donee 
 of the power (p) ; but neither legacy duty nor succession 
 duty is in the first instance payable in respect of legacies 
 given by the will of a person domiciled abroad (q) ; the 
 distinction being that in the former case the appointee takes 
 by virtue of a settlement which must be governed by 
 Eno-lish law, while in the latter case the legatees derive 
 their title solely under the foreign will. For the purposes 
 of taxation, the value of the property is to be ascertained 
 at the time when the interest of the successor accrues ; so 
 that if it has then no saleable, or actual or potential annual 
 value, it is incapable of assessment under the Act (r) ; and 
 the beneficial enjoyment mentioned in the 21st section, is 
 the enjoyment of the possessor in his own right, and for his 
 own benefit, and not as trustee for another («). 
 
 (o) Brayhrqiike v. Att.-Gciu, 9 H. L. see also on the Act, Att.-Gen. v. Luth- 
 er. U()tn::^t^^':^::Z^MZ^^^r . dak, L. E. 5 E. and Jr. Ap. 290. 
 
 (p) Re Lovelace, i De G. & Jo. 340; (r) Att.-Gen. v. Earl of Seffon, 11 
 
 He Wallo2)'s Trvst, 1 De G. J. & S. H. L. Ca. 257. 
 
 656 ; Be Captevielle, 2 H. & C. 985 ; («) Jb. ; and see generally on the 
 
 jRe Badarfs Trusts, L. R. 10 Eq. 288. Act cases above cited, and Be Mickle- 
 
 (q) Wallace v. Att.-Gen., L. R. 1 thicaite, 11 Exch. 452 j Harding v. 
 
 Ch. Ap. 1 ; but see comments on this Harding, 2 Gif. 597 ; Be Peyton, 7 
 
 case in Att.-Gen. v. CampheU, L. R. 5 H. & N. 265 ; Att.-Gen. v. Floyer, 7 
 
 E. & Ir. Ap. 524 ; and see this case H. & N. 238 ; 10 W. R. 762 ; BeBam- 
 
 also as to the liability to duty in mij, 30 Beav. 75 ; Ohlfuid v. Preston, 
 
 respect of any devolution of the pro- 8 Jur. N. S. 107 ; Be De Lanceij, L. R. 
 
 perty after the purposes of adminis- 4 Exch. 345 ; and see 24 & 25 Vict. c. 
 
 tration have been satisfied, and the 92 ; and 28 & 29 Vict. c. 104. 
 fund has been invested in this country;
 
 279 
 
 CHAPTER VIII. cha,,.viii. 
 
 AS TO THE ABSTRACT. 
 
 1. General matters relating to the abstract. 
 
 2. When iierfect ; — ivhat it must contain and shoiu. 
 
 3. What should he furnished, in various specified cases. 
 
 4. As to its pre])aration, contents, and delivery. 
 
 5. As to its examination and perused. 
 G. As to its verification. 
 
 (1.) A PURCHASER may require to be furnished with an ab- Section 1. 
 
 stract prepared in the usual way (^0 ; even although he G^jieralmatT 
 
 have agreed to accept the title (6) : he may retain it, during ters relating 
 
 negotiations upon, and even after rejection of, the title, until stract. 
 
 the dispute be finally settled, for the purpose of showing Purcliaser's 
 
 the grounds of such rejection (c) ; and, in the interim, he stract. 
 
 may maintain trover for it, even against the vendor (d) : His right to 
 
 •^ ' o / retani. 
 
 when the contract is finally abandoned by both parties, he Must be given 
 must return the abstract, and may not retain any copy of abandoned, 
 it {e) : counsel's opinion and observations he may, it appears, 
 retain if written upon separate paper (/') ; or, if written 
 upon the abstract itself, he may erase them before return- 
 ing it ([/). 
 
 But the purchaser of a mere contract for sale is not en- Where he 
 titled to require his immediate vendor to show the original eontractToT 
 vendor's title {h) ; as the subject-matter of the subsale is, ^*l®' 
 
 (f() Home V. Wiwjfidd, 3 Sc. N. R. (c) 2 Taunt. 277. 
 
 340 ; Sug. 406. (/) 2 Taunt. 270 ; but see Sug. 
 
 {h) Morris v. Kcarsky, 2 Y. & C, 428, and Alcjrandcr v. Crosbie, 2 Ir. 
 
 139 ; Keyse v. Ileydon, 20 L. T. 244, E([. R. 141 ; a decision referable to 
 
 V,-C. W. the passage in the treatise, see 143, 
 
 (c) 2 Taunt. 278 ; Sug. 428. (y) Wood v. Court, 2 S. Atk. Ccnv. 
 
 (d) Boherts v. Wyatt, 2 Taunt. 268; 463. 
 
 but see Lnngsloxo v. Cox, 1 Chit. 93. {h) Kintrca v. Preston, 1 H. & N,
 
 280 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 1. 
 
 not the property itself, Ijut the rights therein of" the original 
 purchaser under the original contract. Whether the owner 
 of a moiety of an estate to whom is given the right of 
 preemption over the other moiety, can insist on having an 
 abstract of the common title, has been douljted (/) : but in 
 tlie ordinary case of a surviving partner purchasing the 
 share of his deceased partner, a stipulation that the vendors 
 shall deliver an " abstract of their title " has been held to 
 mean an abstract of the general title (/.•). 
 
 Vendor pays 
 for. 
 
 Excejit on 
 sales to rail- 
 way company, 
 &c. 
 
 The vendor, as a general rule, pays for the abstract (/) : 
 but on sales to a company under the provisions of the 
 Lands Clauses Consolidation Act, 1845, whether such sales 
 be voluntary or compulsory, and whether made by absolute 
 or merely statutory owners, the costs of the abstract (in the 
 absence of agreement) are thrown on the company (in) : and 
 similar provisions (n) are contained in most of the earlier 
 railway and other similar Acts : such costs seem to be 
 included in any general stipulation throwing on the pur- 
 chaser the costs of the contract (o). 
 
 Copy abstract. A solicitor, who merely furnishes a copy of a former ab- 
 stract, is not justified in making the usual charge for pre- 
 paring an abstract de novo (j>) : cases, however, may often 
 occur in which the adaptation of an old abstract to the 
 existing circumstances of the sale may require so much skill 
 and labour as to justify moi'e than a mere charge foi' a 
 stationer's copy, although the actual alterations may not be 
 considerable, if estimated by their length in folios. 
 
 357, where the contract was for a 
 lease ; and see Phlpiis v. Child, 3 
 Drew. 709. 
 
 ((■) See and consider Brooke v. 
 Garrod, 3 K. & Jo. 608 ; 2 De G. & 
 Jo. 62. 
 
 {}.■) }furr!s v. Kcurs'ci/, 2 Y. &, Coll. 
 l:J9. 
 
 (0 Siig. 406. 
 
 (m) 7 & 8 Vict. c. 18, s. 82. 
 
 (n) See In re London and Green- 
 Kick B. Co., 3 Ha. 22. 
 
 (o) See Ex parte Addles Charity, 
 3 Ha. 22, 25; and vide infra, Ch. 
 XIII. s. [t. 
 
 (p) MX'v.lloch V. Grrjory, 1 K. & 
 J. 291.
 
 THE ABSTRACT. 
 
 281 
 
 (2.) An to vjhen the ahdi-ad is 'perfect ; — ivJtat It invM 
 contain and sJioto. 
 
 For the purpose of conditions, kc, as to time, an abstract 
 is said to be " perfect," if it be as perfect an abstract as the 
 vendor is able to furnish at the time of delivery (q) ; although 
 the title shown by it may be defective : an abstract is, in 
 the stricter sense of the term, "perfect" or complete, when it 
 shows a perfect title (r) ; that is, when it shows that the 
 vendor is either himself competent to convey to, or can 
 otherwise procure to be vested in, the purchaser, the legal 
 and equitable estates free from incumbrances (.s). If, on the 
 face of the abstract delivered, the vendor has shown, say a 
 sixty, or in the case of a contract entered into since 1874, a 
 forty, years' title {t), and if for the purpose of supporting 
 that title, it is necessary to .show that a person died intestate, 
 or any other fact — if the facts arc alleged with sufficient 
 sj^ecification on the abstract — then it shores a good title, 
 although the proof of the matters shown nuiy be the subject 
 of ulterior investigation (u). 
 
 Cbap. VIII. 
 Sect. 2. 
 
 As to when 
 the abstract is 
 l)erfect ; 
 what it must 
 contain and 
 show. 
 
 When " per- 
 fect," within 
 meaning of 
 conditions of 
 sale. 
 
 When "per- 
 fect," as show- 
 ing a sufficient 
 title. 
 
 V.C. Kin- 
 dersley's defi- 
 nition of a 
 " perfect" 
 abstract. 
 
 For instance, the non-registration of deeds, which can be Certain im- 
 
 registered (./;), the existence of incumbrances, when the in- 
 cumbrancers can be compelled to receive their money and 
 join in the conveyance (^), the outstanding of the legal 
 estate in a trustee (z), or in a married woman whose interest 
 is bound by an order of the Court of Chancery («), are not, 
 
 perfections 
 in, not con- 
 
 sidez-ed de- 
 fects of title. 
 
 ((/) 2 Ha. Ill ; and see, at Law, 
 Blackburn v. Smith, 2 Exch. 78:3 ; 
 Steer v. Croioley, 11 W. K. 861. 
 
 ()•) 2 Ha. Ill ; Sug. 427. 
 
 (,s) See and consider Lord Bnuj- 
 brooke v. Ini^kip, 8 Ves. 436 ; Boclini 
 V. Wood, 1 Jac. & W. 419, 421 ; 
 Jumpson V. Pitchers, 1 Coll. 13, 15 ; 
 Sug. 423. 
 
 (<) See 37 & 38 Vict. c. 78, sect 1. 
 
 (u) Per V.-C. Kindersley, in Parr 
 V. Lovc'jrove, 4 Drew. 177 ; and see 
 Oakdcn v. Pike, 11 Jur. N. S. 666 ; 
 
 and see also Steer v. Oroide i/, 11 
 W. K 861. 
 
 (x) Stowell V. Robinson, 3 Bing. 
 N. C. 928, 935. 
 
 (y) Townsend v. Cliampernown, 1 
 Y. & J. 449 ; and see 2 Mull. 583 ; 
 but not if their concurrence cannot 
 be compelled ; see Paye v. Adam^ 4 
 Beav. 269 ; Sug. 425. 
 
 (s) Berkeleij v. Daak, 16 Ves. 380 ; 
 Sclliek V. Trevor, 11 Mee. & W. 728. 
 
 (a) Jumpson v. Pitcher^:, 1 Coll. 13.
 
 282 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 2. 
 
 t^ 
 
 at least in a Comt of Equity (6), regarded as imperfections 
 of title ; so if, on the completion of a contract entered into 
 since 1874, the purchaser will have an equitable right to 
 the production (c) of the deeds, the inability of the vendor 
 to furnish a legal ■««*■ for their production is no objection to 
 the title at Law or in Equity. 
 
 Title defec- But, Consistently with the terms of the above proposition, 
 
 d'ilchlrgrc.an whero vcudors cannot give to or procure for the purchaser 
 
 be given for 
 purchase- 
 money. 
 
 Should state 
 written con- 
 sent of parties 
 agreeing to 
 join in sale. 
 
 a valid discharge for the purchase-money, the title is de- 
 fective ('?)• 
 
 And the mere statement on the face of the abstract that a 
 party who is not compellable has agreed to join, although 
 usual, is, it is submitted, insufficient ; and, in Equity, the fact 
 of a third party, whose concurrence is necessary, being under 
 no legal or equitable obligation to join in the sale,- has been 
 held to be an objection, not merely of conveyance, but of 
 title (e). A written agreement to concur, enforceable against 
 the party, as being founded on a valuable consideration, 
 should, in strictness, be procured and abstracted (J) : nor is 
 such agreement sufficient, if it do not absolutely bind the 
 interest of the party signing it ; c.(j., a title dependent on an 
 aoreement by a tenant in tail to bar his estate tail, would be 
 imperfect {g) : so also would be a mere agreement by a 
 married woman, with or without her husband, to concur 
 in respect of her interest in real estate not settled to her 
 separate use, and over which she has no general power of 
 appointment. 
 
 Must show So, if the legal estate be outstanding, the abstract must 
 
 Standing kgal «liow in whom it is vested (A) ; but it has been held in 
 
 estate is 
 
 And this is 
 not always 
 sufficient. 
 
 vested. 
 
 (h) But see, at Law, Ilandip v. 
 Padidck, 5 Exch. 622, 623. 
 
 ((^.) m^£W\ Vict, c. 78, sect. 2, 
 Bub-sect. 3. 
 
 id) Forbes V. Peacock, 12 Sim. 528. " 
 
 (f) Esdai'Ie v. Stcjihenson, 6 Mad. 
 3C6 ; and see Dowjlus v. L. N. W. Ji. 
 
 Co., 3 K. & Jo. 181. 
 
 (/) See Aock v. Xeuman, infrd, 
 Ch. XVIII. s. 9 ; rhilUps v. Edwards, 
 33 Beav. 440. 
 
 (y) Lewin v. Guest, 1 Euss. 325 ; 
 3 & 4 Will. IV. c. 74, s. 47. 
 
 {It) Wyime v. Griftli, 1 Euss. 283.
 
 THE ABSTRACT. 283 
 
 Equity that if the legal estate be traced to a deceased Chap, vill, 
 trustee, the abstract is sufficient, although it fail to point !J1__ 
 
 out his representative (/) : whether the same rule would 
 prevail at Law seems to be doubtful (/•). 
 
 Where an estate is sold free from land-tax, the abstract iNlxist show 
 should set out the certificate of redemption, unless there is has been re- 
 a condition binding;- the purchaser to accept less conclusive ^^emed where 
 
 ° J- ■•■ the estate is 
 
 evidence (/). The existence of land tax, or insufficient sold free from 
 
 proof that it has been redeemed, renders the title bad at 
 
 Law, if the estate is sold free from the tax (m). Where the 
 
 estate is sold subject to the tax, its existence need not be 
 
 mentioned ; though it is usual and convenient to specify the 
 
 amount in tlie particular: a statement so made must of 
 
 course be verified. Where it is sold free from tithe, the 
 
 ground of exemption from tithe must be shown by the 
 
 abstract. 
 
 The expression used by Lord Eldon (n) is, that the abstract Showing 
 
 ^ "^ _ V / ' ^ future right to 
 
 is complete, "whenever it appears that, upon certain acts property, in- 
 done, the legal and equitable estates will be in the purchaser:" Law : semble. 
 it was, however, suggested in the two first editions of this 
 work that, at least in a Court of Law, it would not be suffi- 
 cient for the abstract to show mei'ely a future (although 
 certain and early) riffht to the property ; and that the exist- -^^ i" ^^^ "^ 
 
 •^-^ '=' L L J > ^ mortgage 
 
 ence of an incumbrance Avhich cannot be discharged on or which cannot 
 before the time fixed for completion (o), would amount at "^ °^ ' 
 Law to a defect of title {p) : but in a modern case, where the 
 vendor, who was not bound to convey the estate by any par- 
 
 (/) Avarnev. Brown, 14 Sim. 303; (o) See (a case depending on the 
 
 Berkeley v. Dauk, 16 Ves. 380 ; and specialty of the contract) Forstcr v. 
 
 see Jumpson v. Pitchers, I Coll. 13. llo'jijart, 15 Q. B. 155. A mort- 
 
 {k) See HansJip v. Padwick, 5 gagee, we may remark, need not re- 
 
 Exch. 623. ceive his money before the day fixed 
 
 {I) As e.<j. a copy of the register, for redemption, although ])re\iousIy 
 
 or a statutory declaration that the tendered witli interest up to such 
 
 tax has not been paid for a certain day : Brown v. Cole, 14 Sim. 427. 
 
 number of years. (/>) See llandip v. Padwick, 5 
 
 {m) Buchanan v. Popplelon, 4 Jur. Excli. 615 ; and compare Webb v. - 
 
 N. S. 414 ; 4 C. B. N. S. 40. A astin, 8 Man. & Ci. 701. 
 
 (/») 8 Ves. 436.
 
 284- 
 
 THK ABSTRACT. 
 
 Chap. VIII. 
 Sect. 2. 
 
 Incum- 
 brances ; 
 whether a 
 defect iu title 
 in Eiiuity. 
 
 Title good, 
 although im- 
 mediate con- 
 veyance not 
 procurable . 
 
 ticiilar day, deduced a good title to the equity of redemption, 
 the existeuce of mortgages affecting the property was held 
 not to be a defect of title; although they were not mentioned 
 in the contract, and no notice had been given of the intention 
 to pay them off (^). In Equity, as a general rule, uiortgages 
 and other incumbrances are considered merely matters of 
 conveyance (r) : and this doctrine has even been extended to 
 cases whei'e the j^ropei-ty was mortgaged to an amount con- 
 siderably exceeding its value (s) : they seem, however, to 
 have been decided on the principle that the vendor had the 
 legal power, if he used the necessary means, of procuring a 
 conveyance ; and the conclusion woidd, it is conceived, be 
 different, if, Ijy reason of an agreement for the continuance 
 of the charge, or otherwise, the vendor had no right to call 
 on the incumbrancer to join in the conveyance (f). The 
 equitable doctrine as to the consolidation of securities 
 furnishes a strong aroument against the obligation of a 
 purchaser to accept the conveyance of a mere equity of 
 redemption instead of an unincumbered estate (?/). Lord 
 Langdale observes, on the general question, " Where an 
 interest is vested in a party to secure a right, the satisfac- 
 tion of which right entitles the party who has sold the estate 
 to call for a conveyance, then the court considers it a 
 question of conveyance only ; but I think it has never gone 
 further than that" (,'■) : in which it seems to be assumed 
 that the riglit is capable of being satisfied at the time when 
 the question of title or no title arises. At any rate it may 
 be considered that the title is perfect, whenever it appears 
 tliat under the contract the purchaser either already has, or 
 will necessarily, before the time fixed for completion, be able 
 to acquire an immediate and indisputable right to the legal 
 and equitable estates ; even although the absence of parties, 
 
 (5) Savory v. Undenrood, 23 L. T. 
 141, Q. B. 
 
 (;•) Tovnucnd v. CJtoiiipcriioirii, 1 
 Y. & J. 449. 
 
 («) ^tephenn v. >juppij, and Jiaicson 
 V. Tashur<jh, cited 1 Y. & J. 450. 
 
 {() See 2 Moll. 583 ; 4 Beav. 269. 
 
 (w) See and consider Bccror t, Luck, 
 
 L. R. 4, Eq. 537. The 7th sect, of the 
 37 & 38 Vict., c. 78, does not affect the 
 equitable right to consolidate. This 
 sect., it is understood, is about to be 
 repealed. 
 
 (x) Sidtbotham v. Barrinrjlon, 3 
 Beav. 6-'8.
 
 THE ABSTUAOT. 285 
 
 or other circumstances, may considerably delay the convey- Chap. vill. 
 
 Sect. 2. 
 
 ance (y). 
 
 It has, in fact, been held, that the Master, under the old Whether 
 
 , 1 • r' T ii i 1 x'j.1 1 sufficient if 
 
 practice, was warranted m tindnig that a good title was de- abstract 
 duced, when it appeared by the al)stract that the vendor was J.',^^'j.^^,^g^^^i„°^^^^ 
 tenant in tail in possession, and able to convey the fee simple tenant in tail 
 
 , . . in possession . 
 
 by an enrolled conveyance (z): this decision, so tar as it may -^,J^^[■J^: ! 
 tend to establish, for it by no means decides, that such a ■i-'^u^--'^-'- 
 vendor is not Ijouud at once to execute a disentailing assur- 
 ance, and limit the fee simple either to his own use or to his 
 appointment, seems open to observation. It is clear that his 
 contract would give to the purchaser no right whicli he could 
 enforce in the event of the vendor's defith before the execu- 
 tion of the conveyance ; which sufficiently distinguishes it 
 from the case put by the plaintiff's counsel, of a contract 
 entered into by a tenant for life with a power of sale : for a 
 contract to exercise such a power, if entered into for valuable 
 consideration, would be enforced in E(|uity against the issue 
 in tail and remaindermen («) : whereas, in the case of the 
 tenant in tail, the jurisdiction of Equity is expressly ex- 
 cluded by Statute (6) : and it seems unreasonable that a 
 purchaser should be put to the expense of investigating the 
 title and preparing his conveyance, when the death of the 
 vendor would deprive him of the estate, and possibly leave 
 him without available remedy for recovery of his costs, 
 and deposit (if any has been paid). These remarks apply 
 more forcibly where a future day is fixed for completion ; 
 before which the vendor is not bound to convey ; so that it 
 does not rest with the purchaser to get rid of the state of 
 uncertainty by at once accepting the title and taking a con- 
 veyance. In such a case the title deduced is not, it is sub- 
 mitted, with reference to the terms of a contract, stipulating 
 for a conveyance, m futuro, an absolutely good title ; but a 
 
 (y) As to when a good title is first v. Eail of Yarhorowjli, Johns. 70. 
 shown, see Sherivin v. ShaLijKct re, 17 (^) Cattdl v. Cormff, 4 Y. & C. 
 
 Beav. 267 ; 5 De G. M. & G. 517 ; 228, 
 Bridges v. Longinan, 24 Beav. 27 ; («) Sug. Pow. 557. 
 
 Porr V. Lovegrove, 4 Drew. 177 ; Lyk [h) 3 tt 4 Will. IV. c. 74, s. 47.
 
 28G 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 2. 
 
 title defeasible in the event of the vendor's death before the 
 time fixed for completion. 
 
 Section 3. 
 
 As to what 
 abstract 
 should be fur- 
 nished in 
 various cases ; 
 
 on purchase 
 by a tenant in 
 common or a 
 copartner. 
 
 On purchase 
 of allotment. 
 
 Tenure of 
 allotments. 
 
 Of land taken 
 in exchange. 
 
 (3.) As to vhat ah^rad sJiouhl he furnished in various 
 
 cases. 
 
 If one tenant in common purchase of another, he is en- 
 titled to an abstract of their general title, if the vendor 
 stipulates in general terms for the delivery of an abstract (c) ; 
 but, in the absence of such a stipulation, it seems doubtful 
 whether he can require more than an abstract showing his 
 vendor's separate title (d). 
 
 Upon the sale of lands allotted under an Inclosure Act, 
 the abstract down to the award, must be that of the title to 
 the lands in respect of which the allotment was made {e) : 
 and when the allotment has been made indiscriminately in 
 respect of lands held under different titles, all such titles 
 must be shown by the abstract (/). It may be observed that 
 if the Act omits the usual clause assimilating the tenure, an 
 allotment is freehold ; although made in respect of customary 
 lands : and this, notwithstanding the Act directs that allot- 
 ments shall be held to the same uses, &c., as the lands in 
 respect of which they are allotted (g). 
 
 Where the estate has been taken m exchange at common 
 law, or under mutual conveyances with eviction clauses, the 
 abstract must, down to the exchange, show the titles to both 
 estates (A); unless, in the case of a common law exchange, 
 (as to the future operation of which see 8 and 9 Vict. c. 106, 
 s. 4,) the estate given in exchange has since been aliened (/), 
 and the vendor can prove the alienation. 
 
 (c) Morris v. Kcarslci/, 2 Yo. & 
 Coll. 139. 
 
 (d) Law V. Lan; 9 Jur. 745 ; and 
 see Ph)p2:is v. Child, 3 Drew. 709 ; 
 Broole v. Garrod, 3 K. & Jo. 608 ; 
 2 De G. & Jo. 62. 
 
 (c) Sug. 373. 
 
 (/) See and consider Kinr/ v, 
 
 Moody. 2 Sim. & St. 579 ; Major v. 
 Ward, 5 Ha. 604. 
 
 (g) Doe V. Darldsov, 2 Man. & Sel. 
 175 ; Doe v. HiUard, 9 Barn. & Cr. 
 789. 
 
 (/(.) Buitard's case, 4 Eep. 121 a 
 Sug. 372. 
 
 (/) 1 Jarm, Conv. by S. 75.
 
 THE ABSTRACT. 287 
 
 Where the estate has been taken in exchange under the Chap. VIII. 
 Acts authorizing the exchange of ecclesiastical property (k) ; 
 
 or under an Inclosure Act, or the provisions of the 4 & 5 j^ exchange 
 Will. IV. c. 30 (authorizing the exchange of Common Lands,) ^J™ p*^*J,j. 
 the title down to the exchange must be that of the estate under Inclo- 
 
 sure Acts. 
 
 given in exchange. Lord St. Leonards, m fact (speaknig oi 
 exchanges under Inclosure Acts) states, that " the title of the i. 
 person holding the estate is the only one relating to it " (/) : |1 
 this may be admitted if the validity of the exchange be 
 assumed: but, as such exchanges, and also exchanges of 
 common-field land under the 4 & 5 Will. IV. c. 30, are only 
 authorized to be made by or with the consent in writing of 
 persons having certain specified interests in both estates ()/t), 
 it is conceived that, in such cases, an abstract can scarcely be 
 regarded as perfect, unless it disclose at least so much of the 
 prior title to the estate taken in exchange as may be suffi- 
 cient to show that the transaction was within the provisions 
 of the Act. But where the estate has been taken in ex- 
 change under the general provisions of the Commons Inclo- 
 sure Act, 8 & 9 Vict. c. 118 (n), the single title alone seems 
 necessary ; as the Act contains a clause making the award, 
 when confirmed, conclusive evidence that the directions of 
 the Act have been complied with, and declaring that every 
 
 (A) 55 Geo. III. c. 147, see s. 3 ; Inclosure Act, and of the 6 & 7 
 
 and 56 Geo. III. c. 52 ; 1 Geo. IV. Will. IV. c. 115, have been complied 
 
 c. G ; and G Geo. IV. c. 8. See, as to with, and that all necessary consents 
 
 confirmation of void exchanges, by the have been given ; but, query, whether 
 
 tithe-commutation commissioners, 5 this meets the difficulty in the case of 
 
 & 6 Vict. c. 51, s. 7. Exchange of an exchange ; it would rather seem 
 
 charity lands held valid, although the to refer merely to such consents as 
 
 consenting Bishop was a trustee of are reijuisite to the validity of the 
 
 the charity ; Att.-Gen. v. Bishop of Inclosure. 
 
 Worcester, 9 Ha. 328. (a) Amended l)y 9 & 10 Vict. c. 70, 
 
 (I) V. and P. 373. see s. 11 ; and extended by 10 & 11 
 
 (m) See 4 & 5 Will. IV. c. 30, Vict. c. Ill, see ss. 4 & 6 ; and 12 & 
 
 ss. 2, 4, and 25, in which note the 13 Vict. c. 83, see ss. 7 & 11 ; and 
 
 words, "according to the provisions," see 14 & 15 Vict. c. 53; 15 & 16 
 
 &c. ; and 6 & 7 Will. IV. c. 115, Vict. c. 79, ss. 17, 31, 32 ; 17 & 18 
 
 s. 35. See also 3 & 4 Vict. c. 31, s. 1, Vict. c. 97 ; 20 & 21 Vict. c. 31 ; 22 
 
 which, in cases falling within the Act, & 23 Vict. c. 43 ; and 31 & 32 Vict, 
 
 jnakes the award conclusive evidence c. 89. 
 that the provisions of the general
 
 288 THE ABSTKAC'T. 
 
 Chap. VIII. allotment, exchange, &c., specified and set forth in the award, 
 
 l!l_ shall be binding and conclusive on all persons whomsoever (o) : 
 
 and the same may probably be the case as respects private 
 exchanges under s. 147 of the Act {p). So, also, if the title 
 be described in the particulars or conditions as arising under 
 an exchange by virtue of an award under an Inclosure Act, 
 it is sufficient if the abstract show a title by award in respect 
 of other lands and common rights, without showing the par- 
 ticulars of the exchange : and if the agreement be that the 
 title shall commence with the award, the purchaser cannot 
 require the title of the lands given in exchange for those 
 contracted to be sold {q). 
 
 Of land taken Where the title depends upon an exchange under the 
 from a " 1 & 2 Gco. IV. c. 92, (authorizing the exchange of charity 
 c lanty. lands,) the abstract must show the title as well to the lands 
 
 given as to the lands taken in exchange ; inasmuch as the 
 right of re-entry in case of eviction is expressly reserved to 
 the charity trustees (r) ; and it is conceived that the pur- 
 chaser may require evidence of the land given in exchange 
 having been quietly enjoyed by the charity. 
 
 Under the Under a recent Statute U), where the trustees or persons 
 
 recent Act . 
 
 acting in the administration of a chaiity have power to 
 determine on any sale, exchange, partition, lease, or other 
 disposition of the charity estate, a majority present and 
 voting at a meeting of their body duly constituted, are to 
 have full power to execute and do all such assurances and 
 things as may be requisite for carrying such sale, &c., into 
 efiect ; and their assurances and acts are to have the same 
 
 (o) Sect. 105 ; as to evidence of {<j) Cuttdl v. CormU, 4 Y. & C. 
 
 the award, see s. 146 ; and see as to 228. 
 
 partitions by the commissioners, 11 ('•) See sect. 9 of Act. 
 
 & 12 Vict. c. 99, ss. 13, 14, and 15 & i^) 32 & 33 Vict. c. 110, s. 12. 
 
 16 Vict. c. 79 ss. 17 31, 32. Thxti section seems retrospective. See 
 
 (Xi) The commissioners appear to the Acts 16 & 17 Vict. c. 137 ; 18 & 
 
 have power under this section to ex- 19 Vict. c. 124 ; 23 & 24 Vict. c. 136; 
 
 change gavelkind lauds for lands held 25 & 26 Vict. c. 112, which are, so far 
 
 in common socage. Miad v. Lcvian, as consistent, to be construed witli 
 
 20 Beav. 269 ; 7 De G. M. & G. 340. this Statute.
 
 THE ADSTllACT. 289 
 
 effect as if executed by all the trustees or adininistratoi's, Ch&p. Ylir. 
 and by the official trustee of charity lands. Where the title !_ 
 
 is derived under tliis Act, or the previous Charitable Trusts 
 Acts incorporated with it, the al)stract must show that al^ 
 the statutory requirements have been complied with. 
 
 So where land has been exonerated from tithe by an Of land 
 
 exonerated 
 
 exchange under the 6 & 7 Will. IV. c. /I, s. 30 (f), the from tithe by 
 
 title to the land given in exchange for the tithe must be ^^ndei"! & 7 
 
 shown (.). r31-/3^3„. 
 
 The title to terms of years attendant upon the inheritance, Of estate 
 
 . which has 
 
 and which are considered to have merged under the 8 t^V: 9 attendant 
 Vict. c. 112, must still be traced so as to show in whom they ^""''• 
 were vested at the time when they became subject to the 
 operation of the Act (x) ; viz., by abstracting, if practicable, 
 the deed creating the terms, and the modern mesne assign- 
 ments : these latter, however, may be abstracted very con- 
 cisely (?/) : and when such deeds are numerous and 
 voluminous, it is not unconnnon for counsel when settling 
 conditions of sale or a contract on behalf of a vendor to 
 stipulate that such deeds shall be abstracted merely by giving 
 their dates and a short statement of their effect, unless the 
 purchaser chooses to have a full abstract at his own expense. 
 The Act, it may be remarked, does not appear to extend to 
 copyholds, customary freeholds (z), or leaseholds (a) : and it 
 has been doubted, although apparently without sufficient 
 ground, whether the first and second sections extend to any 
 hereditaments other than hind ordinarily so called (l>). 
 
 Upon a sale of land furuierh^ copyhold, the abstract must of.aifran- 
 trace the copyhold title, and also the lord's title to the manor, )' 'j','^' '"''•''' 
 down to the enfranchisement (c) : and it is suggested in a 
 work of reputation that a purchaser may further require 
 
 [t] And see 5 & C Vict. c. 54, ss. N. S. 1005 ; 1 Drew. & Sma. 412. 
 
 6 & 7. (//) Sng. .370. 
 
 (n) See 2 & 3 Vict. c. G2, s. 20. (:) Sec Dav. Concise Tree. 70. 
 
 (x) Lyle V. Earl of Yarhoiowjh, («) See sect- 3. 
 
 Johns. 70, 74. As to wh.at is a satis- {h) Dav. C. Free. 75, 80. 
 
 fied term, see Shaw v. Ju/mson, 7 ■Tm-. {c) Sag. 372. 
 
 VOT., I, "
 
 290 
 
 THE ABSTEACT. 
 
 Chap. YIII. 
 Sect. 3. 
 
 Of leaseholds 
 — freehold 
 title must 
 formerly be 
 produced ; 
 
 but not under 
 the V. & P. 
 Act, 1874. 
 
 evidence of the manor having, since the enfranchisement, 
 been enjoyed conformably with the title shown by the 
 abstract (d) : such a requisition has never however come 
 under the observation of the author of the present work, and 
 it seems very doubtful whether if made it could be insisted 
 on. Where the enfranchisement has been effected under 
 the general enfranchisement Acts, it is unnecessary to show 
 the lord's title (e). 
 
 Previously to the 37 and 38 Vict. c. 78, the rule was that 
 upon a sale of leaseholds, the abstract must (excej)t in the 
 case of a Bishop's lease (/) ) show the lessor's title, as well 
 as the subsequent title to the term (g) ; even although the 
 lessors were a corporation, and the lease was one of long- 
 standing (Ji). The rule, as to the non-production of the 
 Bishop's title (i), rested on the ground of the lease having been 
 granted in a mode prescribed by an Act of Parliament, and 
 upon the presumed notoriet}" arising from the use of the 
 episcopal seal ; and it would seem to apply to leases granted 
 by a Dean and Chapter, and possibly to other cases : and the 
 general rule did not apply when the purchaser entered into 
 the contract with notice that the freehold title could not be 
 produced (/.•) ; nor was it clear that the rule applied where, 
 on the sale of a lease of great antiquity, the vendor showed 
 the creation of the term, and deduced the leasehold title for 
 the last sixty years (I). But now, under the recent Act, on 
 the completion of any contract made after 1874, for the grant 
 or assignment of a term of years, whether original or deriva- 
 tive, the intended grantee or assign is not entitled to call for 
 
 ((/) 1 Jarm. Conv. by S. 83. 992 ; 
 
 (f) 4 & 5 Vict. c. 35, see s. 64 of 410 ; 
 
 Act; and see 15 & 16 Yict. c, 51, 397, 
 
 ss. 11, 22, 33, 34, and 47 ; and see the G. & 
 
 saving in s. 48, et qucere. And see 185. 
 
 sect. 10 of 21 & 22 Vict. c. 94 ; which L. E. 
 
 repeals s. 11 of 15& 16 Vict. c. 51 ; {/() 
 
 and see Kerr v. Paicson, 25 Beav. 394, see p. 
 
 a case under the Copyhold Act 1852 ; (/) 
 
 and n'c?e supra, p. 166. (/r) 
 
 (/) Fane v. Spencer, 2 Mer. 430. {I\ 
 
 iff) Souter V. Dral-e, 5 P.. & Ad. 
 
 Hall V. Bdli/, 4 Man. & Gr. 
 Clive V. Beaumont, 1 De G. & S. 
 406 ; Gaston v. Frankum, 2 De 
 S. 561 ; Smith V. C'apron, 7 Ha. 
 
 And see Straiiks v. St. John, 
 
 2 C. P. 376. 
 
 Pun-is V. Payer, 9 Pri. 488; 
 
 522. 
 Fane v. Spencer, 2 Mer. 430. 
 
 Sug. 369. 
 
 1 Jarm. Conv. by S. 69.
 
 THE ABSTRACT. 291 
 
 the freehold title (m). This enactment, however, does not Chap. VIII. 
 
 apply to leasehold for lives ; nor, in the absence of express '— "_ _ 
 
 stipulation negativing the right, does it preclude the grantee ^h^t^^ases 
 or purchaser of an underlease from calling for the title of the 
 immediate lessor, t^^^ift |/-(/^ Uc-^ (vj«^»^./^ 4'---' -i-r..'*'^' 
 
 In a recent case at Law it was held that there is no whether the 
 
 agreement be 
 
 difference between an agreement to grant a lease and an to grant or 
 agreement to assign one, as regards the liability to make a ^^^^°^ '^ ®^^^- 
 good title ()?). A person who agrees to let land agrees to 
 grant a valid lease, just as a person who agrees to sell land 
 agrees to execute a valid conveyance of it (o). 
 
 Upon a sale of renewable leaseholds, if (as generally Of renewable 
 happens) the sul)sisting lease be expressed to be granted 
 in consideration of the surrender of the prior lease, the 
 abstract nmst show that the surrenderor was the equitable 
 as well as the legal owner of the surrendered lease (p). 
 
 If the lease be held for lives, evidence must, of course, he Of leases for 
 given, that the lives are in existence ; and this, although 
 there be a covenant for perpetual renewal (q). 
 
 Upon a sale of shares in mines, the purchaser is not entitled of shares in 
 to a reo-ular abstract of title to the mines themselves, as if ^^^^ ' 
 he were purchasing a share in the land in which they are 
 worked : but he is entitled to such evidence of the constitu- 
 tion of the company, and of the nature of the title under 
 which the mines are workcnl, as Avill sho^v that the subject- 
 matter of the purchase is what it professes to be, and that 
 the proposed form of transfer will give liim a valid title to 
 the shares (/•). 
 
 (m) 37 & 38 Vict. c. 78, sect. 2. C. C. 291 ; Ilodjltmon v. Cooper, 9 
 
 (m) Stranl-s v. St. John, L. E. 2 Beav. 301. 
 C. P. 376 ; and eases cited ; and see {q) Anderson v. JI![/(}iiis, 1 J. & L. 
 
 Machryde v. Weelcs, 22 Beav. 533. 718. 
 
 (o) Per Willes, J., in .SYmnZ-s V. £'<. {r) CurUng v. Flvjht, 2 Ph. CI 3; 
 
 John, uhi supra. see Ha. 41. 
 
 ip) Coppiii V. Fcrniihiiu'jh, 2 Bro. 
 
 V 2
 
 292 
 
 THE ABSTRACT. 
 
 Chap. VI 
 Sect. ."j. 
 
 Of railway 
 
 shares. 
 
 II. Upon the sale of railway or other shares, little evidence of 
 title is needed (.s). Until the seller has paid up all his calls, 
 the company may refuse to registei' the ti-ansfei' ; ]jut if they 
 acknowledge the transferee as a shareholder, they cannot re- 
 cover from him the arrears due from his vendor (if). It is the 
 purchaser's duty to see that the transfer is registered (ll); but 
 in order fully to protect himself from all liability in respect 
 of future calls, the vendor should see that the purchaser's 
 name is substituted in the register (x); for if he fail to do so, 
 his name will be put on the list of contributories in the event 
 of a winding-up. In such a case, the vendor will be entitled 
 to an indemnity from tlie purchaser, notwithstanding that 
 the transfer may not have been registered (ij). 
 
 Of pews : 
 
 in chancel. 
 
 Upon the sale of a messuage with pews claimed as appur- 
 tenant thereto, the right to the pews must be proved, either 
 by production of the faculty, or by evidence of prescription (^). 
 With respect to seats in the chancel, if the Rector allows 
 seats to be erected or placed there by the parish, the same 
 seem to he thenceforth in the same position as pews in the 
 body of the church ; and to be subject to the like jurisdic- 
 tion of the Ordinary : but the Ordinary cannot interfere with 
 pews occupied by the Rectoi- and his family and tenants, nor, 
 indeed, with any he has licensed ; and he cannot introduce 
 
 (*) Shaw V. Fisher, 2 De G. & S. 
 11, 14 ; .5 De G. M. & G. 596 ; Wi/nne 
 V. Price, 3 De G. & S. 310. A.s to 
 .specific performance of a contract for 
 sale of shares, vide infra, Ch. XVIII. 
 s. 1. 
 
 (t) Watson V. Hales, 23 Beav. 294. 
 
 (m) Saijles V. Blane, 14 Q. R. 205 ; 
 Walker v. Bartlett, 18 C. B. 845, 861 ; 
 In re Ward and Henry's case, L. E. 
 2 Ch. Ap. 431, 438. 
 
 (x) Shepherd's case, L. E. 2 Eq. 
 561; L. R. 2 Ch. Ap. 16; J lead's 
 case, L. R. 3 Eq. 80 ; White's case, 
 ib. 86 ; and see Shepherd v. GiUcspie, 
 L. R. 5 E.j. 293 ; L. 1{. 3 Ch. Ap. 
 
 764 ; Cruse v. Paine, L. R. 6 Eq. 
 641. 
 
 (y) Wynne v. Price, 3 De G. & S. 
 310 ; Walker's case, L. R. 2 Eq. 564 ; 
 Head's case, L. R. 3 Eq. 84 ; White's 
 case, ib. 86. See as to the usages of 
 the Stock E.Ychange, and their bear- 
 ing on the contract, Grisscll v. Bris- 
 toice, L. R. 4 C. P. 36 ; Coles v. Bris- 
 towc, L. R. 4 Ch. Ap. 3 ; and vide 
 infrd, Ch. XVIII. s. 1. 
 
 (i) See, on the right to pews, Shel- 
 ford on Statute.=i, 5th ed. p. 93 ; and 
 Peppers'. Barnard, "J Jur. 1128; 12 
 L. .r. N. S., Q. B. 361 ; Knapp v 
 St. Miiry, Wdhsdcn, 15 Jur. 473.
 
 THE ABSTEACT. 293 
 
 i)cw.s or seats into the cliancel without the Rector's con- Chap. viii. 
 
 , , - Sect. 3. 
 
 sent {a). 
 
 As to tlie commencement of the title, — Before the recent Must extend 
 Act (/>), the rule was that upon a sale of freeholds, or (it is period— sixty 
 conceived) of copyholds or renewable leaseholds, except y^^^^- 
 where the first lease was of more recent date, the title must 
 go back at least sixty years (c) ; but l)y the recent Act, the 
 period of forty years is substituted for that of sixty years, 
 subject however to the purchaser being entitled to call for a 
 title going further back than forty years in any case where, 
 before the passing of the Act, he might have required more 
 than a sixty years' title {d). 
 
 The title to an advowson must be carried back at least <^"e hundred 
 
 years on sale 
 
 one hundred years {e) ; and the abstract should be accom- of advowson. 
 panied by a list of the presentations during the period over 
 which it extends (/'). The rule, it is conceived, is the same, 
 whether the advowson be sold as in gross or appendant ; for 
 although a sixty, or now a forty, years' title might be sutti- 
 cient, if it could be shown that the advowson was in fact 
 appendant to the principal estate, yet the purchaser, it may 
 be contended, has a right to see that no destruction of the 
 appendancy, by severance of the advowson, is disclosed by 
 the earlier title. 
 
 We may remark here, that the word " living" is sulHcient 
 to pass the advowson ; though it may be restrained by the 
 context to the next presentation {y). 
 
 ia) AylifFe's Paragon, 486 ; Degge's Ilodjk'tnson v. Cooper, uhl supra ; 
 
 Parson's Counsellor, 173, 6th ed. Finch v. Shan; 18 Jur. 937 ; 19 Eeav. 
 
 1703; Watson's Clergyman's Law, 500; see Moulton v. Edmonds,! De 
 
 388, 3rd ed. 1725 ; Nelson's Rights G. F. & Jo. 246. 
 of the Clergy, 494 ; Prideaux's Direc- ('/) 37 & 38 Vict. c. 78, sect. 1. 
 
 tions to Churchwardens, 74, 75 ; see (c) See 3 & 4 Will. IV. c. 27, 
 
 1 Brown and (Jould, 45, dictum per s. 30. 
 Lord Coke ; Clifford v. Vicls, 1 Barn. (/) Sug. 367. 
 
 & Aid. 498; Morgan v. Curtis, 3 {<j) irc66 v. 7^y«y, 2 K. & Jo. 660; 
 
 Mann. & Ey. 389. on Ap. 2 Jur. N. S. 1242 ; and H. L. 
 
 (6) 37 & 38 Vict. c. 78. 8 Jur. N. S. 1135. 
 
 (r) Cooper V, Emerij 1 Ph. 388 ;
 
 294 
 
 THE ABSTllACT. 
 
 Chap. VIII. 
 Sect. 3. 
 
 Must show 
 creation of 
 reversionary 
 interest on 
 sale thereof. 
 
 Upon the sale of a reversionary interest, whatever may 
 Le its antiquity, the abstract must go back sufficiently far 
 to show its creation ; and it should also be shown that the 
 estate has been enjoyed in jDossession, conformably with the 
 instrument which created the reversionary interest {h). This, 
 however, only applies to the sale of reversionary interests 
 commonly so called, and not to the sale of an estate subject 
 to an attendant term ; in such a case it is sufficient to show 
 a good sixty years' (or now a forty years') title to the free- 
 hold, and to the possession of the term, abstracting also the 
 deed creating the term ; and even if this be lost, the loss is 
 said to be innnaterial (/). 
 
 Showing 
 sixty years' 
 title to old 
 term — 
 whether suffi- 
 cient. 
 
 It was stated in former editions that upon the sale of an 
 old term of years, it is sufficient if the abstract show the 
 creation of the term and a sixty years' title to the possession, 
 omitting the intermediate title ; and that the absence of the 
 deed creating the term would not render the title unmarket- 
 able (/>■). However, in a recent case (J), where the passage in 
 the text and the authorities on which it is based were cited, 
 the Court of Exchequer Chamber held, that a vendor of 
 leaseholds, who deduced a good title for more than sixty 
 years, was bound to produce a lease dated in IGOG, under 
 which the property was held, there being nothing in the 
 contract to prevent the purchaser from requiring its produc- 
 tion. 
 
 On sale of 
 old tenn in 
 gross. 
 
 And it is conceived that in the case of the sale of an old 
 term originally created by way of mortgage, or upon trust 
 for raising portions, or for any other limited purpose, the 
 abstract should set out, not only the instrument creating 
 the term, but also those which evidence its subsistence as an 
 absolute estate : c.(/., a decree of foreclosure, or an assignment 
 under a power of sale in the case of the mortgage term, or 
 
 (h) 1 Jann. Couv. by S. Gl, 
 {{) 1 Prest. Abst. 249. 
 (l) 1 Jarm. Conv. by S. G9 ; 1 Prest. 
 Abst, 25, 249 ; and see Sug. V. & P. 
 
 Hth Edn. p. 370. 
 
 (I) Frcnd v. BacUoj, L. K. 5 Q. B. 
 213.
 
 THE ABSTRACT. 295 
 
 an assignment on the sale of a term for raising portions. Chap. VIII. 
 
 Numerous instances occwr in practice in which estates really ' 
 
 held merely for the residues of old terms of this description 
 have for many years been dealt with and treated as freehold ; 
 and their existence constitutes a source of danger to titles 
 which it may often be impossible to guard against by any 
 amount of professional vigilance. 
 
 Upon the sale of tithes held as a lay property, or of any On sale of 
 other property held (as such tithes generally (m) are) under a property de- 
 grant from the Crown, the abstract should set forth the ^^l''^^ ^"°'^ ^}'' 
 
 t> ' Lrown must 
 
 original sfrant, and then, omittincj intermediate instruments, show original 
 
 . . grant. 
 
 take up the history so as to show a good sixty (or now forty) 
 years' title (n): so, where the tithes are considered to have 
 been merged by the tithe-owner under the late Acts, and 
 the estate is sold as tithe-free, the early title to the tithes 
 must be similarly deduced (o) ; except in cases where the 
 merger purports to have been effected by an instrument 
 made with the consent of the Commissioners before the 
 passing of the 9 & 10 Vict. c. 78 (p). 
 
 If the purchaser have agreed not to call for the legal Kules not 
 estate, this will not shorten the period over which a title estate being ^ 
 must be shown to the equitable estate ; and it must also be ™^'".t^-'^, 
 
 ^ ' equitable. 
 
 shown that no adverse use can be made of the h^al estate. 
 
 (•i.) An to the prciiavatlon, contents, and iMivcry of the Section 4. 
 
 ahatract. As to pre- 
 
 paration, con- 
 
 The abstract must always commence with a document, of *P"*^''' ^^]\^^- 
 
 •^ livery of the 
 
 at least the requisite age, if the vendor have one (^q) : but abstract. 
 neither can a purchaser require, nor would the vendor's 
 
 {m) Tithes may be held as lay pro- only to a contract for sale of land can- 
 
 perty by virtue of sales for redemj^tion not ai)ply to a contract for the sale of 
 
 of land tax. incorporeal hereditaments like tithes ; 
 
 («) Pirkcriii'j V. Lord Slierhorac, 1 but see 13 & 14 Vict. c. 21, sect. 4. 
 
 Crawf. & Dix. Abr. C. 254 ; 1 J arm. (o) Ibid. 
 
 Conv. by S. 68; Sug. 367. It is (p) See Walker v. Bcntloj, 9 Ha. 
 
 conceived that sect. 1 of the 37 & 38 629, 632. 
 
 Vict. c. 78, which in terms applies {q) 2 Sug. 138, 10th edit.
 
 296 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 4. 
 
 Must if pos- 
 sible cotn- 
 mence with a 
 document ; 
 
 old deeds not 
 to be ab- 
 stracted : 
 
 but must be 
 produced if 
 in vendor's 
 possession. 
 
 solicitor bo justified in. furnisliing an abstract of deeds prior 
 in date to that which Avould constitute a good root of title (r). 
 Where the root of the title, as abstracted, is insufficient, per 
 se (as, e.g., in the case of a general devise Avithout proof of 
 the testator's seisin), the purchaser may require an inspection 
 of the earlier title deeds in the vendor's possession; but 
 Avhcther he is entitled to this, as a general rule, when a good 
 sixty — or now forty — years' title has been deduced, is con- 
 sidered doubtful (.s). The better opinion, however, seems to 
 be, that irrespectively of any question as to expense, and 
 supposing the requisition is not precluded by the contract, a 
 vendor is bound to show, so far as he can, his entire title, 
 however ancient it may be. 
 
 Must com- 
 mence with 
 what descrip- 
 tion of docu- 
 ment as a root 
 of title. 
 
 As a o-eneral rule, the first abstracted documents should 
 purport to deal with the entire legal and equitable estates in 
 the property; or should at least afford iwbnd facie evidence 
 that the title to such legal and equitable estates was, at the 
 date of such documents, consistent with the title as subse- 
 quently deduced : they should not be dependent for their 
 validity upon any previous instrument ; and should contain 
 nothing raising a fair doubt whether the parties claiming 
 the interests there pui'ported to be dealt with, wei'e in fact 
 entitled so to deal with them. 
 
 Not with will 
 containing 
 general 
 devise. 
 
 Thus, a general devise in a will of real estate is an insuffi- 
 cient root of title, there being nothing to show that the pro- 
 perty in question w^as intended to, or could, have passed by 
 it : the conveyance to the testator should be abstracted ; or, 
 if there are no earlier deeds, evidence should be furnished of 
 his seisin at the date of his will : and even a specific devise 
 is not an eligible root of title {t). 
 
 Whether with 
 mortgage for 
 a term — or a 
 lease. 
 
 So also, it is conceived, a mortgage for a term of years, or 
 a lease, is an inq^roper commencement of an abstract of title 
 
 (>•) 1 Jarm. Conv. by S. G3 ; but 
 see Fvcnd v. BucMc;/, L. E. 5 (^.B. 213; 
 and ride infra, p. 2!»7. 
 
 («) Parr v, Lovegrorf, i Drew. 17^, 
 
 ISO ; Sug. 407. 
 
 (t) See Parr v. Loveyrovc, i Drew. 
 170.
 
 THE ABSTRACT. 297 
 
 to the fee simple, where the vendor has earlier documents; Chap. VIII. 
 
 ■ -I 1 J.1 c ±1 Sect, 4. 
 unless, peril aps, in cases where, independently ot tlie mere 
 
 fact of the demise (which might be attributed to a power, or 
 to a mere chattel interest in the grantor), the instrument 
 contains matter Avhich furnishes a fair presumption that he 
 was the absolute owner in fee. A vendor, however, in pos- 
 session of earlier documents, could not be advised (except 
 under very special circumstances) to commence his abstract 
 with a lease ; as it would almost inevitably lead to expensive 
 discussions with the purchaser. And Avhere a lease is relied 
 on, it is necessary, unless it expired before the time of living 
 memory, to show that the lessee had actual possession of the 
 estate {it). 
 
 So, also, an instrument relied upon as an exercise of a Nor with in- 
 
 power should be preceded by the instrument creating the pendent for its 
 
 power; and the admittance to copyholds shouhl Ije preceded validity on 
 
 by the surrender ; and a recovery deed or a disentailing strument. 
 assurance, if it disclose an entail, by the deed creating the 
 entail (x). 
 
 " If, however, such deed is lost, and possession has gone Except in 
 along with the estates created by the recovery for a con- _iogs ^f prjor 
 si<lerable length of time, and the presumption is in favour of ^iistruraent. 
 the recovery having been duly sufi'ered," the loss of the deed, 
 and want of evidence of its contents, are no objection to the 
 title {)/) ; and the same principle would probably apply in 
 the case of the absence of a deed creating a power (s) ; or in 
 the case of the loss of an ancient lease, on a sale of long 
 leaseholds (((). 
 
 So, if the first abstracted document contain recitals or Nor with 
 other matter throwing a reasonable doubt upon the title as ^hidi throws 
 respects the contents or construction of the earlier documents * '^?."'''i.?^ 
 
 •C^ ear ipr r.it. t 
 
 earlier title. 
 
 {u) Clarksonv. Woodkouse, 5 T. Ix. {:) Qee Noualllev.ifremwood,T\ini. 
 
 412 ; Burt. Comp. pi. 428. & R. 2(i. 
 
 (.r) 1 Jarm. Conv. by S. 67. (") I5ut seeFraul v. Burklrtj, L. E. 
 
 {>j) Coussnwkir v. SeweU, Sug. 3'33. 5 (.}. B. 213, ft qumr ; supm p. 204.
 
 298 
 
 THE ABSTRACT. 
 
 Chap. VIII. the purclia.ser may re(j[Tiire the vendoi-, not only to produce 
 __?!!!l^_ but also to abstract, so much of the prior title as may be 
 sufficient to remove such doubt ; but, in the absence of such 
 reasonable doubt, the mere fact of earlier documents being 
 recited would not entitle the purchaser to an abstract of 
 them, even where he may require their production if in the 
 vendor's possession or power (h) : and it is sufficient to pro- 
 duce (without abstracting) an instrument Avhich is required 
 simply "to establish a fact or negative an inference" (c). 
 
 Need not in 
 all cases com- 
 mence with a 
 dccmnent. 
 
 It is not csnentkd that the origin of the title should be 
 shown either by deed or will ; in the absence of documents 
 it may be sufficient to produce evidence of such long uninter- 
 rupted possession, enjo}anent, and dealing Avith the property, 
 as to afford a reasonable presumption that there is an abso- 
 lute title in fee simple (d). But the proof of title by evidence 
 of possession is not admissible in cases vrhere documents 
 forming part of the modern title are lost or destroyed : in 
 such cases the vendor must prove their contents and execu- 
 tion (e) ; for which purpose, Avhen the land is in a register 
 county, a registered memorial is good secondary evidence (/). 
 
 Recitals in As a general rule, the recitals in any document Avhich is 
 
 £fuW be fuHy abstracted as a root of title, should so far as it may in any 
 way atiect the estate comprised in the contract, be set out 
 fully ; even though the purchaser may be precluded from 
 founding any requisition or objection thereon. 
 
 abstracted. 
 
 Wherever 
 conimenced 
 should thence 
 be regularly 
 continued. 
 
 The title, wherever taken up, should be thence continued 
 either in chronological or some other regular order. Where 
 separate parts of the estate are held ' under separate titles, 
 such titles should, of course, be traced separately so long as 
 they remain distinct : every subsequent document dealing 
 
 (h) Sec Prossa- v. Wattts, 6 Madd. (e) Bryant v. Bi'!<l; i Russ. 1 ; 
 
 59 ; 1 .Tarm. Conv. by S. (i3 and Oi ; Suy. 438. 
 
 1 Hayes, Conv. 566. (/) Cathrow v. Bade, 4 De G. & S. 
 
 (c) Sug. 418. 527. 
 
 \d) CottnU v. Wathnf:, 1 B:av. 365.
 
 TH?: ABSTRACT. 299 
 
 with the legal estate, (except expired leases, and with the Chap. Vlll. 
 
 exceptions already referred to Qj),) should be abstracted ; for L^ — 
 
 instance, a mortgage and a reconveyance are not to be sup- 
 pressed under the notion that the title has Ijecn thereby 
 brought back to its original state {h) ; such may, or may not, 
 have been the case ; and is a point to be determined by the 
 advisers of the purchaser, not of the vendor. All documents Documents 
 forming part of the title should be abstracted in chief ; the abstracted iu 
 introduction of them merely as recitals in other abstracted ^^^^^• 
 instruments, (which is not uncommon, especially in the case 
 of wills,) is, it is apprehended, clearly improper : were it not 
 so, a copy of the conveyance to the vendor might, in many 
 cases, take the place of an abstract ; besides which, the onds- 
 sion to abstract a document in chief may proceed from a 
 desire to avoid noticing matters of a suspicious character 
 occurring in such document, but which are not noticed in 
 the recital. It is convenient to introduce, in their proper Statements of 
 
 1,1 matters of 
 
 places, direct statements of deaths, marriages, and other pedigree, 
 matters of pedigree ; and not, as is frequently done, to trust 
 to the recitals in the abstracted documents : and in cases of 
 complicated descents, &c., a regular pedigree should accom- 
 pany the abstract. 
 
 Documents affecting merely efiuitable interest give rise to Suppression 
 
 ^ _ of instruments 
 
 considerations of greater difficulty. Lord St. Leonards states evidencing 
 generally, that the solicitor "should abstract every document sSfied"* ^^ 
 upon which the title depends, or upon which any difficulty ^^^"'^J^J"' 
 has arisen ; wherever he begins the root of the title, he ought justifiable, 
 to abstract every subsequent deed" (/) this, however, it is 
 conceived, must be understood to mean every document upon 
 which the puirh((sers title will necessarily depend. If, for 
 instance, the vendor be possessed of a document declaring 
 that a prior owner wdio purchased, apparently on his own 
 account, was in fact a trustee, or, that a mortgage-debt was 
 trust-money, the title of the vendor who has notice of the 
 
 (r/) Sapra, p. 291. v. CrealurL, L. 1{. 10 Ch. Ap. 22. 
 
 (/() As to the danger and impropriety (/) Sug. 107. 
 
 of siqipressing a mortgage, sec Jlcath
 
 300 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 4. 
 
 Deed which 
 may operate 
 on legal estate 
 should never 
 be suppressed. 
 
 trust rnay dcpt'iid upon various instruments ■sviiicli would be 
 altogether innnaterial to a purchaser destitute of such notice ; 
 and it would, it is conceived, be unusual, and improper, for 
 the solicitor to allow notice of such a trust to appear upon 
 his abstract. This, however, it must l)e admitted, is, pro 
 tanto, a departure from the general principle, that it is for 
 the purchaser's solicitor, and not the vendor's, to judge of 
 the materiality of the muniments of title : but it is sanctioned 
 by convenience and universal practice. Other cases may 
 perhaps occur in which a document may be, without material 
 risk, suppressed; as, for instance, Avhere a good title is shoAvn 
 to the legal estate, and a charge, which clearly operated 
 nierel}' in Ecpiity, has been paid off and no trace of it appears 
 ujDon the subsequent title. The difference between the sup- 
 pression of such an instrument and a legal mortgage is 
 evident : the equitable charge has no operation as against 
 a subsequent purchaser for valuable consideration taking the 
 legal estate without notice ; and his title, therefore, is not 
 dependent on the sufficiency of the release ; nor does there 
 seem to be any good reason for making a distinction between 
 an equitable charge by deed, and a mere memorandum 
 accompanying an old equitable mortgage by deposit, which, 
 except upon special grounds, is never abstracted. But, in 
 the case of a legal mortgage, the purchaser's title at Law 
 will depend (theoretically if not practically) upon the legal 
 validity of the deed of reconveyance, whether its existence 
 be known to him or not. Still, even in the case of the 
 equitable charge, it seems at least probable that a solicitor 
 who suppresses it, under the idea that it is unimportant to 
 the title, does so at a lisk (It) ; and it is submitted, that such 
 a course should rarely, or never, be taken, in respect of an 
 instrument which is so framed that it could by possibility 
 affect tlie legal estate ; as, for instance, a mortgage of an 
 equity of redemption, drawn as a conveyance with a proviso 
 for redemption ; and which although merely a charge in 
 Equity if the first mortgage be valid in Law, would yet pass 
 
 (I) See Snj;, 411. 
 
 I
 
 THE ABSTllACT. 301 
 
 the legal estate, sui^posing it not t(j have been effectually chap. viii. 
 transferred by the prior instrument. ' 
 
 But in a late case (/), it was held that a vendor was not Drummond v. 
 justified in suppressing a letter creating an equitable charge, ""^'^^" 
 whicli was intended to be paid off; and, also, that he would 
 not have been justified in so doing, even if the charge had 
 been actually satisfied : and the Court, in commenting on the 
 alcove passage in the text (as appearing in the 3rd edition), 
 observed that it " must probably mean that where an equi- 
 table charge has been discharged, it may be advisable not to 
 put it on the face of the abstract ; but that he (the V.-C.) 
 had no doubt that such charges ought in some way to be 
 communicated to a purchaser." The intention of the writer, 
 however, was not to limit the rule in the way suggested by 
 the Court: but to lay it down generally, that where an 
 informal equitable charge has been satisfied, its past existence 
 may, except under special and exceptional circumstances, be 
 altogether suppressed by the vendor's solicitor. The strict 
 rule laid do^vn by the Vice-Chancellor, Sir W. P. Wood, 
 in Drtiinmond v. Ti'acey, and sanctioned by Lord St. 
 Leonards (ni). i^^^^y be theoretically correct : but its practical 
 inconvenience, as much to purchasers as to vendors, is so 
 great, that in practice it had previously been all but univer- 
 sally ignored: nor has the practice, it is believed, been 
 materially, if at all, affected l»y that decision. Thus, to take 
 a common instance, a solicitor, who is conducting a sale of 
 liis client's property, frequently makes him an advance in 
 anticipation of the sale, and, as a security, takes an informal 
 equitable charge upon the property, or the expected sale- 
 proceeds, out of which, on completion of the purchase, the 
 deljt is satisfied. The existence of such an incumbrance is 
 seldom, if ever, disclosed. Its suppression can in nowise 
 prejudice the purchaser : its introduction upon the face of 
 the title would be a probable source of future difficulty and 
 expense. If the ruk; Ijc really as laid down in Dri'inniond 
 
 {I) Drummond v. Trnceij, .Te.luis. [m) Sug. 411. 
 
 608, G12.
 
 302 THE ABSTRACT. 
 
 Chap. VIII. V. Tracey, the conclusion seems to be inevitable that the 
 ^^^' ' astuteness with which modern conveyancers have striven to 
 avoid the unnecessary disclosure upon a title of mere 
 equities, has been altogether a mistake ; — although their 
 practice, in this respect, has been sanctioned by the example 
 of the Court of Chancery itself, in its own conveyancing 
 transactions ; — and that every defunct equity, which, during 
 the last sixty — or now forty — years, has affected the 
 property, whether created by writing or merely by parol, 
 (for there is no valid distinction between the two modes 
 of effecting the same result) ought to be abstracted : for of 
 course it would be mere waste of time to communicate their 
 past existence to the purchaser, and leave him to require the 
 abstract to be amended. Upon the whole, with the greatest 
 possible respect for the very eminent Judge Avho decided 
 Dnimmond v. Traccy, it is submitted that the rule, as stated 
 by the writer, is one which is in conformity with long esta- 
 blished conveyancing usage : and as such, and as being also 
 based upon considerations of great practical convenience, it 
 ouo-ht not lightly to be annulled or shaken. Of course, if 
 the vendor or his solicitor is especially required to state 
 whether there are any undisclosed incumbrances affecting 
 the property, the existence of such an equitable charge, if 
 subsisting, must be divulged. It is one of the inconveniences 
 of such a requisition, that it may elicit information, wliich 
 has been judiciously withheld. 
 
 As to liability If the vendor's solicitor, by fraudulently suppressing a 
 solidtor under documcut, damnify the purchaser, he is answerable for the 
 22 & 23 Vict, j^j^^ r^^-^^\ ],y ^ late Statute is made criminally responsible. 
 
 c 35 for sup- ' ' 
 
 pressing in- By the 24th section of 22 & 23 Vict. c. 35, a seller or mort- 
 ""''' " gao-or, or his solicitor or agent, Avho conceals any instrument 
 
 material to the title, or any incumbrance, from the purchaser 
 or mortgagee, or who falsifies any pedigree, on which the 
 title does or may depend, in order to induce such purchaser 
 or mortgagee to accept the title, with intent to defraud, is 
 made o-uilty of misdemeanour, and also liable to an action for 
 damac^es. This section, it is conceived, can only apply to the 
 
 cumbrance,&c.
 
 TPIE ABSTRACT. 303 
 
 fraudulent concealment of an exlstlwj incumbrance ; nor will Chap. YIII. 
 the vendor's solicitor be criminally responsible, if he suppress 1_L1 — 
 
 a mere equitable charge, which has been satisfied, or which no 
 longer affects the title. The section plainly contemplates 
 that there may be documents of title which are not material ; 
 what are, and what are not, material in each particular case 
 may safely be left to the discretion of the solicitor, who, 
 with the penal consequences of this Statute in view, is not 
 likely to make an omission which will prejudice a purchaser. 
 
 The loss of a deed of a date subseipient to the commence- As to loss of 
 ment of the abstract, is no objection to the title, if, under all 
 the circumstances, the clear presumption be that the instru- 
 ment, if produced, would not throw any difficulty about the 
 title (h) ; this doctrine, however, must be applied with the 
 greatest hesitation to cases where modern deeds are lost, and 
 no satisfactory evidence exists of their contents (o). 
 
 The abstract should notice all drainage and land im- All charges 
 
 , . 1,1 1 • , • 1 n should be 
 
 provement loans (/>) and other subsisting charges upon the noticed, 
 property ; and should also, if the tithe has been commuted, 
 state the amount and particulars of the commutation rent- 
 charge. 
 
 Copies of wills abstracted, (if of an at all informal cha- Shoul.l be ac- 
 
 ■■■ ■ _ companied by 
 
 racter,) and of private Acts of Parliament upon which the copies of wills 
 title depends, should accompany the abstract. Xcts^' 
 
 It has been held at Law to be sufficient for the purpose of Plans may be 
 
 rciGri'Gcl to * 
 
 identification that the abstract should refer to, without con- , ^ . " 
 
 but copies 
 
 taining copies of, maps or plans indorsed upon the deeds {q) : should gene- 
 
 . rally be f ur- 
 
 liut this can scarcely !)e so m cases where, as now often mshed. 
 happens, a deed contains no substanti\'e description of the 
 property, but conveys it either merely, or as resj)ects its 
 
 (n) Minchln v. Vance, 2 S. Atk. 513. 
 
 Conv. 3SG, b. See, as to earlier docu- (o) Vide infra. 
 
 mcnts, Prosser v. Watts, 6 Madd. .^9'; (y<) Vide suprd, p. iSS ; liifn!, C'li. xi. 
 
 and as to the loss of the lease under sect. 2. 
 
 which the property is held, Frcnd v. (7) See Blaclbnrn v. Smilli, 2 Exch 
 
 Buckley, L. R. 5 Q. B. 213, s.e (in 7!>2 ; ml (jiiarc. 
 ejectment) Doe v. Brooks, 3 Ad. & E.
 
 ]04 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 4. 
 
 details, by reference to the plan. According to present prac- 
 tice, a plan is generall}- employed, if not to define, at any 
 rate to elucidate the description of the parcels : a tracing of 
 it, Avhen not sent with tlie abstract, is usually fin-nished 
 upon the purchaser's request ; and may, it is conceived, in 
 most cases be insisted on (r). 
 
 And by state- 
 ment of evi- 
 dence. 
 
 A statement of the evidence which the vendor is able to 
 produce in support of the title may conveniently accompany 
 the al )stract ; this, however, is not often attended to. When 
 matters of importance are to be proved by statutory declara- 
 tion, it is desiraljle, with a view to expediting business, that 
 copies of the proposed declarations should accompany the 
 abstract. 
 
 As to con- 
 sulting counsel 
 thereon on 
 behalf of 
 vendor. 
 
 Cases not unfrequently occur of complicated titles, in 
 which the solicitor who prepares the abstract will be justified 
 in laying it before counsel on behalf of his own client ; this 
 remark applies particularly to heavy mortgage transactions, 
 in which considerable expense to the mortgagor may fre- 
 quently be saved by the deliveiy in the first instance of a 
 perfect and well-verified abstract. 
 
 Table of con- 
 tents. 
 
 It not unfrequently occurs that a heavy abstract is pre- 
 faced by a concise analytical table of contents. The practice 
 is a most connnendable one. 
 
 How to be 
 copied. 
 
 An abstract may be written so illegibly, or upon paper of 
 such an inconvenient size or substance, as to justify the 
 purchaser's solicitor or counsel in declining to receive it (s). 
 
 Effect of non- 
 delivery of 
 abstract, on 
 
 The non-delivery of a perfect or sufficient (t) abstract on 
 the day named, discharges the purchaser from any conditions 
 
 (r) As to the importance of a plan 
 in ascertaining the parcels, see Lyie v. 
 Filchards, L. R. 1 E. & Ir. Ap. 222 ; 
 and ride infra, Ch. XVII. s. 4. 
 
 {s) See Sug. 400. Abstracts, it 
 apjiears, ought in strictness to con- 
 
 t.ain ten, but are usually passed on 
 taxation if containing on an average 
 eight, folios per sheet. In re Walsh 
 12 Beav. 490. 
 
 (t) Vide siqmi, p. 281 ; as to what 
 is a perfect or sufficient abstract.
 
 Tin: ABSTRACT. ^^^ 
 
 binding him to make objections, Szc, within a specified time ^''IP:^^^"^- 
 after delivery (u) ; and, at Law, relieves him altogether from 
 
 ^ , , ,, , Ml 1 purchaser's 
 
 the contract (x) : m Equity, however, the purchaser will be lability under 
 bound if either he neglect to apply for the abstract within a t^^ contract, 
 reasonable time before the day fixed for its delivery (y) ; or 
 if, upon its being subsequently tendered, he receive it with- 
 out objection (z) : but the wilful (ct) neglect on the part of a 
 vendor to prepare the abstract within proper time, when 
 pressed by the purchaser to do so, will, even in Equity, en- 
 title the purchaser to avoid the contract so soon as the time 
 fixed for completion has elapsed (h) : where the purchaser's J^^°" f^'^^g"^'^' 
 solicitor intends to rely upon the non-delivery of the abstract taken ad- 
 
 vantage of, 
 upon the day named, or (if no day have been named) \\athin 
 
 a reasonable time before the day fixed for completion, as a 
 ground for refusing to complete the purchase, he should 
 decline to receive it ; or, if forwarded to him under circum- 
 stances which gave no opportunity for its rejection, ho 
 should at once return it, and without reading it (c). 
 
 Where it is important to the purchaser to complete, (if at ^"|^^f *f 
 all), at or about the time fixed for completion, and the ab- ceeding by 
 stract, having been called for, is delivered so late as to render 
 it doubtful whether this can be accomplished, the most ex- 
 pedient course would appear to be, to return it um-ead; 
 ofiering, however, to receive it again, without prejudice to 
 the purchaser's right to aimul the contract, if, on investi- 
 gating the title, it should be found impossible to complete 
 at (or within some short specified period after) the time 
 originally fixed for completion. 
 
 Upon a sale of an estate mth a title registered under the ^^;f J,';''^,^^ 
 
 purchaser. 
 
 •state 
 
 («) Southby V. Ilutt, 2 ISIyl. & C. 823 ; Jones v. Price, 3 Anst. 924. 
 
 211 ; and .see Eobcris v. Berry, 3 De {z) Sug, 261 ; Smith v. Burnam, 
 
 G. M. & G. 291 ; and see Sherwin v. 2 Anst. 527. 
 
 Shakspeare, 5 De G. M. & G. 517 ; («) See Jioherts v. Berry, 3 De 
 
 Vpperton v. Nidolson, L. R. 6 Ch. G. M. & G. 284 ; Tilley v. Thomas, 
 
 Ap. 436. L. R. 3 Ch. Ap. 61. 
 
 (x) Sug. 260 ; Berry v. Younr/, 2 (h) Sug. 261 ; Seton v. Slade, 7 
 
 Esp. 640, n. Ves. 265. 
 
 (y) Guest v. Horn f my, 5 Ves. 818, (r) See 7 Ves. 278. 
 
 vol.. I. X
 
 306 THE ABSTRACT. 
 
 Chap. VIII. Land Registry Act, 25 & 20 Vict., the abstract should consist 
 ^ ' '' of copies of such entries upon the register as are necessary 
 with regis- jn order to show the subsisting state of the title, as appearing, 
 for the time being, upon the register, and irrespectively of 
 the antecedent history of the title. Sometimes, however, 
 the entries relating to the subsisting title refer to the ante- 
 cedent entries in such a manner as to incorporate them with 
 the later entries ; and in such a case, of course, such ante- 
 cedent entries must themselves also be abstracted. 
 
 Section 5. (S-) -4.S to the examination and 'perusal of the ahstract. 
 
 amination and The purchaser's solicitor may, if he please, compare the 
 
 perusal of the ^^^gtract with the deeds before investig-atino- the title, and 
 
 abstract. * *= 
 
 Whether to be the vendor (assuming that there is a binding contract) must 
 
 ^Th d^ d ^^y ^^^^ costs if the title prove bad (c?) ; but unless the ab- 
 
 before invest!- stract be apparently defective, it is better to defer doing so 
 
 gation of tit'e. .. /-f ^ \ • t • ^ • / \ 
 until counsels opniion (ii taken) is obtained wpon it [e). 
 
 As to con- A purchaser's solicitor, it is conceived, is pvimcl facie 
 
 there(fn*^on"^^ legally justified in incurring the expense of counsel's opinion 
 behalf of pur- ^pon the abstract. In London, perhaps, the majority of titles 
 (except those of the simplest description) are submitted to 
 counsel : in the country, the practice inclines considerably 
 the other way : it appears, however, that a solicitor ought 
 himself to peruse an abstract before submitting it to counsel; 
 and that he will be allowed a fee for such perusal, and also 
 the stationer's charge for making a copy of the abstract (/). 
 Titles it is believed are constantly accepted, almost without 
 investigation, merely upon the faith of their having, on 
 some previous occasion, been advised upon and accepted by 
 counsel of eminence. It should, however, be remembered 
 that the decisions of the various Courts of Law and Equity 
 have a retrospective effect upon titles ; so that, in estimating 
 the value of a favourable opinion taken a few years pre- 
 
 (d) Hodijcs V. Earl of Litchjield, 1 (/) Dmx v. Scr&upe, 1 Dowl. P. C. 
 Bing. N. C. 499. 09. 
 
 (e) Sug. 411.
 
 THE ABSTRACT. o07 
 
 viouslv, allowance must be made for the possibility of the Chap. Vlll. 
 title having been since rendered unmarketable, possibly un- 
 
 safe, by some intermediate and unexpected exposition of the ■J^j*^ ^^^^^^^ 
 law (g). It is also important to know whether the counsel ^PJ^^^^'^ 
 who accepted the title did so upon an open contract, or title. 
 under the restrictive influence of special conditions; and 
 whether any special reasons may have existed, which would 
 probably render him astute in endeavouring to take a 
 favourable view of the title. It may also be of some im- 
 portance to know whether the investigation was on behalf 
 of a purchaser or a mortgagee. For in some respects the 
 requirements of counsel are, or ought to be, more, and in 
 others they may properly be less, strict when advising on 
 behalf of a mortgagee than when advising on behalf of a 
 purchaser. For a mortgagee who looks merely to a return 
 of his money and cares nothing for the estate or any part of 
 it except so far as it is a security for his money, on the one 
 hand requires an absolutely safe title to a sufficient amount 
 of property to leave him perfectly secure in all events ; and if 
 satisfied as to this, he may be comparatively indifferent to 
 defects in title to that which he can afford to regard as a 
 mere margin to his security. He might, therefore, on the 
 one hand, in the case of a residential property, be indifferent 
 as to a probable want of title to some particular part of it, 
 the loss of which would be all-important to a purchaser, as 
 destructive to the place as a residence, yet would leave an 
 amount of unsightly but productive acreage amply sufficient 
 to cover the amount of the mortgage debt. While on the 
 other hand, a mere shade of doubt respecting the soundness 
 of the general title, which might very possibly be disregarded 
 by a purchaser eager to acquire an attractive property, would 
 be a sufficient reason for a mortgagee at once declining to 
 advance his money. Land adjoining, or in the immediate 
 vicinity of, residential property, and which if in other hands 
 might be so used as to depreciate the principal estate, will 
 
 ((/) The decision in Uoncywood v. entering a disentailing deed of copy- 
 Forster, 30 Beav. 1, and followed by holds upon the Court Rolls within six 
 that in Gibbons v. Snapc, 1 Do G. J. & calendar months after execution, may 
 S. 621, establishing the necessity for bo cited in illustration. 
 
 X 2
 
 308 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 5. 
 
 Copy of agree- 
 ment should 
 accompany 
 abstract. 
 
 As to pemsin^ 
 abstracts. 
 
 often be purchased by the owner of such estate in disregard 
 of great uncertainty respecting, or even of positive and 
 serious objections to, the title. The above remarks apply 
 particularly to questions as to evidence of identity of parcels, 
 and as to boundaries, and easements. As respects mere 
 pecuniary charges it is obvious that when an estate is of very 
 ample value, a question as to the possible existence of charges 
 of limited amount, and which would be of serious importance 
 to a purchaser, may be altogether disregarded by a mortgagee, 
 who is about to advance his money upon that which even 
 minus the charge is a perfectly satisfactory security. 
 
 The abstract when submitted to counsel, should, of course, 
 be accompanied by a copy of the agreement and conditions 
 of sale (if any). 
 
 It is suggested that the most convenient plan of perusing 
 abstracts (especially for those whose experience is limited) is 
 as follows ; viz., immediately upon perusing, and thoroughly 
 understanding, an abstracted document, to enter it, by its 
 date and parties, in the abstract book, or, which is more 
 convenient, on paper so arranged as to be readily collected 
 and bound when desired ; with as concise a statement as 
 possible of the eifect of each abstracted document, and a 
 memorandum of any peculiarity which may appear in its 
 contents, or of any deficiency in the usual statements as to 
 execution, registration, indorsement of receipts, &c. ; and 
 then in the margin of the abstract book or paper to make 
 all those queries and requisitions which would properly be 
 made if the instrument in question were the termination 
 of the title, except such as the early date of the instru- 
 ment or other circumstances may render evidently unne- 
 cessary : for instance, an estate tail has been created, — 
 the query will be, " how has this been barred ?" a man ac- 
 quires within a recent period an estate in fee, — the query 
 will be, " is any widow dowable ?" the estate is charged 
 with an annuity, — the query will be, " is this a subsisting 
 charge ?" a death or descent is stated, — the marginal note 
 will be, " produce the usual evidence :" a deed is not regis-
 
 THE ABSTRACT. 309 
 
 Sect. 5. 
 
 tcred,— the marginal note will be, " must be registered at the Chap.^VIll 
 vendor's expense :" in all probability, on advancing further 
 in the abstract, most of the queries will be satisfactorily 
 answered, and many of the requisitions will be found to be 
 unnecessary ; and, whenever this is the case, the pen may be 
 passed lightly through the marginal note, not so as to render 
 it illegible, but merely to show that it is unimportant, and 
 the number of the subsequent page which supplies the 
 information may be added by way of reference. By adopt- 
 ing this course, or some modification of it, an interruption in 
 the perusal of the abstract is rendered comparatively unim- 
 portant ; a very short reference to the analysis is sufiicient 
 to show how matters stood at the time of the inteiTuption ; 
 and when the perusal is finished, such of the marginal notes 
 as have not been crossed out will furnish safe materials for 
 the opinion. 
 
 The acceptance of a title is no waiver of objections which ^^^j^/J^*J^\"^ 
 are not disclosed by the abstract (A) ; nor is a client bound by —to what it, 
 his counsel's acceptance of a defective title, even although 
 
 the defect appear upon the abstract (i) : if, however, counsel 
 waive a requisition, and the purchaser adopt his opinion and 
 deal with the vendor on that view, he cannot afterwards re- 
 pudiate it (/o). 
 
 If a solicitor be concerned for both parties, although of Defects in 
 
 , . , client s title 
 
 course bound to see that the purchaser does not buy with a j^ust not be 
 defective title, or buy that which is in fact his own, he is not ^\''^nrentiaed 
 at liberty to disclose defects in the vendor's title of which to take ad- 
 the purchaser might himself take advantage : and a solicitor thereof. 
 acting in contravention of the rule has been held liable in 
 an action for damages {I). 
 
 (h) Const. V, Barr, 2 Mer. 57 ; Alt.- misdescription discovered aJiundc. 
 
 Gen. V. Sitwell, 1 Y. & C. 570; Ward [l) See Dcvcrcll v. Lord Bolton, 18 
 
 V. Trathcn, U Sim. 82 ; 8 Jur. 303 ; Ves. 605 ; Stemirt v. Allison, 1 Mer. 
 
 McCulloch V. Grcffory, 1 K. & J. 280; 33 ; McCuUoch v. Orcrjori/, 1 K. & J. 
 
 and see Bown v. Stenson, 24 Beav, 292. 
 
 631 ; Turquand v. JRhodcf^, 37 L. J. (A") Alexander v. Crosby, IJ. & L. 
 Ch. 830, where the purchaser had 
 
 666. 
 
 taken possession, and yet was allowed (0 Taylor v. Bl(u:kM\ 3 Bing. 
 
 to rescind on the ground of serious N.C. 235.
 
 310 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 As to the 
 verification of 
 the abstract. 
 
 Verification of 
 alistract — 
 what evidence 
 may be re- 
 quired in 
 proof of docu- 
 ments and 
 facts. 
 
 (C). As to the verification of the abstract. 
 
 Assuming that an apparently good title is deduced by the 
 abstract, the next matter for consideration is, the evidence 
 which a purchaser may require in support of it ; and this 
 subject naturally divides itself into two heads ; viz, first, 
 what evidence may be required of the existence and genuine- 
 ness of abstracted documents ; and, secondly, what evidence 
 may be required of other matters of fact. 
 
 As to proof 
 of jjrivato 
 Acts. 
 
 A private Act of Parliament directed to be noticed as a 
 public one, is sufficiently proved by the printed copy, if 
 printed by the Queen's printer (pn) ; and it is by an Act of 
 the present reign rendered unnecessary to prove that the 
 copy purporting to be, was in fact, so printed (u) ; nor was 
 such proof previously necessary as respects Acts which con- 
 tained the usual clause making printed copies evidence : in 
 default of such evidence, an Act should be proved by a copy 
 examined with the original (o). 
 
 Of awards 
 under In- 
 closure Acts. 
 
 An award under an Inclosure Act is proved by a copy, or 
 extract, signed by the proper officer of the Court, if the enrol- 
 ment have been made in one of the Courts at Westminster ; 
 or by the Clerk of the Peace for the county, or his deputy, 
 if the enrolment have been made with tlie Clerk of the 
 Peace (2>). 
 
 Of cojiyhold 
 assurances. 
 
 Copyhold assurances are proved by the copies of Court 
 Roll signed by the steward ; and it appears that, in stiictness, 
 evidence may be required of the steward's handwiiting (q), 
 except, perhaps, where he is dead (r), and the document is 
 
 (»i) Beaumont v. Mountain, 10 Bing. 
 404. 
 
 (n) 8 &9 Vict. c. 113, s. 3. 
 
 (o) 1 Jarm. Conv. by S. 169 ; as 
 to proof of old private Act, which 
 has been omitted from the Parliament 
 Eoll, see Doe v. Brydycs, 7 Sc. N. K. 
 
 333. 
 
 ip) See 41 Geo. III. c. 109, s. 35 j 
 3 & 4 Will. IV. c. 87, s. 2. 
 
 {q) Scriv. on Cop. 5th Ed. p. 351. 
 
 (r) And death may, for this pur- 
 pose, be presumed after 30 years. 
 Doe V. Micliad, 15 Jur. 679, Q. B. 
 
 i
 
 THE ABSTRACT. 311 
 
 aljove thirty years old and comes from the proper custody (.s) : Chap. VIII. 
 
 such a requisition, however, when even modem copies come ' 
 
 from the proper custody, is not usual, in practice, unless 
 there are special grounds for suspicion. Copies authenticated 
 by the steward are evidence, although they are not the 
 copies originally delivered to the tenant (t) ; and so also are 
 mere examined copies (h). The purchaser may, it is con- 
 ceived, in the absence of special agreement, generally compel 
 the vendor (at his own expense) to verify his abstract by the 
 production of authenticated or examined copies, in cases 
 where the originals are lost, even although the steward will 
 allow the purchaser to inspect the Court Rolls ; probably, 
 however, the rule might be different when, as may often 
 happen, the vendor's solicitor, by being himself the steward, 
 or otherwise, is enabled to produce the original Rolls at the 
 proper place for verification of the abstract, and can satis- 
 factorily account for the absence of the original copies, so as 
 to avoid any difiiculty which may be raised by the doctrine 
 of Whitbread v. Jonlan {v). If the vendor be thus obliged 
 to jDrocure fresh copies for the purpose of verification, they 
 will (unless he sell to another person an estate of greater 
 value held under the same title, or himself retain property 
 held under the same title) belong to the purchaser (*). If a 
 surrender have been by attorney, the power of attorney 
 must be produced, and evidence must be given of the prin- 
 cipal having been alive at the time of its being acted on {y) : 
 and where the power was not given for valuable considera- 
 tion (0), inquiry should be made whether it was revoked 
 prior to its apparent exercise : the statement of a power of 
 attorney on the Court Rolls is secondary evidence of the 
 original, if the latter cannot be found {a). 
 
 (s) Scriv. on Cop. 5th Edn. 351 ; (x) Sng. 476. 
 
 Wynne v. Ti/rwhitt, 1 B. & Aid. 376. (y) See caises cited 5 C. B. 917, n. ; 
 
 (t) Breeze v. Hawker, 14 Sim. 350 ; Sug. 417. 
 
 and see now 14 & 15 Vict. c. 09, s. 14. {z) Which would render it irrc- 
 
 {«) See Doe v. Freeman, 12 M. & vocable, see Abbott v. Straiten, 3 J. & 
 
 W. 844 ; and examined copies, not L. 603, 613 ; Smart v. Sandars, 5 C. 
 
 signed by the steward, do not require B. 917. 
 
 stamps ; S. 0. (,«) Doe d. Counsell v. Ca^nrton, 9 
 
 {v) 1 Y. & C. 303, Carr. & P. 112.
 
 312 
 
 THE ABSTEACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Of deeds. 
 
 Deeds abstracted must be proved by the production of the 
 originals, if not lost or destroyed (6) ; the attesting witness, 
 or one of the attesting witnesses, (if alive,) may, perhaps, in 
 strictness be required at Law to prove the due execution (c) ; 
 unless the deed be thirty years old and comes from the 
 proper custody (d) ; but this, where a modern deed comes 
 from such custody (c), is never urged in practice except upon 
 special grounds (/) ; and such a requisition, unless made upon 
 special and sufficient grounds, would probably be dis- 
 countenanced by a Court of Equity. And now by the 
 Common Law Procedure Act, 1854 (<j), it is not necessary to 
 prove by the attesting witness, any instrument to the 
 validity of which attestation is not requisite ; and such 
 instrument may be proved by admission or otherwise, as if 
 there had been no attesting witness thereto. When a deed 
 has been executed by attorney, the same requisitions and 
 inquiry should be made as in the case of a surrender by 
 attornej^ (h). Where the loss or destruction of a deed can be 
 proved (i), secondary evidence may be given of its contents ; 
 but proof must also be given of its due execution and 
 delivery (k) : an attested copy, however, taken and kept for 
 110 years in a public office, of a deed which could not be 
 found, was admitted by Lord Hardwicke as sufficient 
 evidence of the original ; and he intimated that, under the 
 special circumstances, a plain copy would have been ad- 
 
 (^b) Siiprd, p. 142. As to mutilation 
 of deeds, and defects in the stamps, 
 &c., vide infra. 
 
 (c) LaytJioav}) v. Brijant, 1 Bing. 
 N. C. 421. 
 
 {d) 2 Phil, on Ev. 203 ; Man v. 
 Rickctts, 7 Beav. 93 ; Doe v. Michael, 
 15 Jur. C79, Q. B. 
 
 (f) I.e., a place where it may 
 reasonably be expected to be found, 
 although not the most proper place 
 of custody ; Croughtoii v. Blake, 12 
 M. & W. 205 ; Doe v. Phillips, 8 Q. 
 B. 158. 
 
 (/) 1 Jarm. Conv. byS. 179. Lord 
 St. Leonards eeems to think that it is 
 
 sufficient, in the absence of special 
 circumstances, on the sale of freeholds;, 
 to prove the due execution of the con- 
 veyance of the fee to the vendor : 
 V. & P. 439 ; see Thomson v. Miles, 
 1 Esp. 184; Nash v. Turner, ibid. 
 217 ; but see also Crosby v. Percy, 1 
 Camp. 303. 
 (y) 17 & 18 Vict. c. 125, s. 26. 
 
 (i) As to what evidence of loss is 
 sufficient, ride supra, p. 142, n. (o). 
 
 (k) Bryant v. Busk, 4 Russ. 1 ; 
 Bouthhy v. Hutt, 2 Myl. & C. 207 ; 
 and see Doe v. Brydges, 7 Sc. N. K. 
 339.
 
 THE ABSTRACT. 313 
 
 missible (I) : «o, in a modern Peerai^e case, the House of Chap. VIII. 
 
 -1 /. ±xi J. Sect. 6. 
 Lords admitted as evidence an attested copy ot a settlement 
 
 dated in 1G93, produced from the proper custody, and accord- 
 ing to which possession of the estates had gone for many 
 years (;m). Examined copies of the enrohnent of deeds re- 
 (^uired by Law to be enrolled, are, it appears, sufficient evi- 
 dence of the originals; but, where the enrolment is not 
 compulsory, a copy is evidence only as against the parties on 
 whose acknowledgment enrolment Avas made, and their repre- 
 sentatives (n) : and the non-production of the original should 
 be accounted for. The recital of a deed is evidence of its Recitals of— 
 
 nil L • • when evi- 
 
 cxistence as aganist all parties executnig the deed contanimg dance. 
 the recital, and those claiming under them, but is no evidence 
 of its contents or effect beyond Avhat its name and nature 
 necessarily imply, unless proof be given of its loss or destruc- 
 tion (o) : an examined copy of the memorial of a deed regis- 
 tered in a Register County is secondary evidence of the deed 
 as against the parties thereto, and all persons claiming under 
 them (j>) ; but probably not as against strangers (g). 
 
 The enrolment or an examined copy of the enrolment of 
 any deed, executed under the provisions of the Acts relating 
 to the Duchy of Cornwall, is sufficient proof of the contents 
 and due execution of the original ; although its non-produc- 
 tion be not accounted for (r) : so, too, the office copy of an 
 enrolled bargain and sale is sufficient (x). 
 
 Li a case in L-eland, by a settlement executed in 1745, 
 estates Avere limited in strict settlement, with a power of 
 revocation reserved to the settlor; this power was stated 
 
 (/) Ilarvci/v. Philips, 2 Atk. 541. P. 418 ; see Hohhousc^v. Hamilton, 
 
 [m) Fitzwalter Peerage, 10 CI. & F. 1 Sch. & L. 207. 
 952. (7) Doc V. Clifford, uhl suprd : 
 
 (rt) 1 .T;u-m. Conv. by S. 170. Allen v. Allin, 1 Con. & L. 427, 4.57 ; 
 
 (o) Burt Comp. pi. 478 c« scq. ; see but see Collins v. Maule, 8 Car. & P. 
 
 Gilktt V. Ahhott, 7 Ad. & E. 783; 502. As to memorials of assignments 
 
 Brin'jloc v. Goodson, 5 Bing. N. C. of Irish judgments, see Filzgcrald v. 
 
 738. Fit-jjcrald, 8 C. B. 592. 
 
 (23) Wollaston V. IlakewiU, 3 Mann. (r) 7 & 8 Vict. c. 65, s. 34. 
 
 k Gr. 297 ; Doe y. Clifford, 2 Car. & (s) 10 Anne, c. 18, s. 3.
 
 314 
 
 THE ABSTRACT. 
 
 Chap. VIIT. to have been exercised by a will dated in 17C1, but of which 
 
 ' neither the original nor any copy could be produced ; the 
 
 estates were re-settled in 17C3 by a deed which recited the 
 power of revocation and exercise of the power by the will, 
 and possession had ever since gone under this deed ; under 
 these circumstances, Lord St. Leonards held the recital to be 
 suriicient evidence of the contents and execution of the 
 will (0- 
 
 The same estates were limited in strict settlement in 1788 ; 
 in Februar}^, 1814, the tenant for life and first tenant in tail 
 entered into articles of agreement to bar the entail and re- 
 settle the estates to certain specified uses, with a power of 
 revocation : neither the original nor any copy of the articles 
 could be produced, although search had been made for them ; 
 they were, however, recited in the deed making the tenant to 
 the praecipe, which was dated March, 1814 : in 1815, upon 
 the marriage of the tenant in tail, the power of revocation 
 was exercised, and the estates were re-settled, and had since 
 been enjoyed accordingly: Lord St. Leonards, after remark- 
 ing that the articles appeared to have been voluntary, and 
 that the settlement was for consideration, held, that, under 
 the special circumstances of the case, the recital was sufHcient 
 evidence of the contents of the articles (i(). 
 
 Possibly, in the above case, the decision might have been 
 different, if, instead of mere articles of agreement, the miss- 
 ing instrument had Ijeen one which affected the legal estate. 
 
 Lease for a 
 year proved 
 by recital. 
 
 Renewed 
 
 ecclesiastical 
 
 lease. 
 
 The recital or mention of a lease for a year in any convey- 
 ance executed before the loth May, 1841, is sufficient evidence 
 of the execution of such lease ; without proof of its loss (x) : 
 and in any renewed ecclesiastical lease granted since the 21st 
 June, 183G, (unless in pursuance of a covenant or agreement 
 
 (<) Alexander v. Crosby, 1 J. & L. 
 666 ; see Prosser v. Watts, 6 Madd. 
 59. 
 
 (w) Alexander v. Croshij, 1 J. & L. 
 
 6G6. 
 
 (x) 4 & 5 Vict. c. 21, s. 2. See as to 
 Ireland, 9 Geo. 2, c. 5 j 1 Geo. 3, c. 3.
 
 THE ABSTRACT. 315 
 
 entered into before the 1st of March, 183G,) the recital of Chap. vili. 
 
 , . . Sect. 6. 
 
 the old lease, and of the deaths, &c. of the cestias que vie, is 
 
 conclusive evidence thereof (,y). 
 
 Where the title depends upon a deed acknowledged by a Acknowledged 
 married woman, under the 3 & 4 Will. IV. c. 74, evidence 
 should be given of the certiticatc of acknowledgment having 
 been duly filed (z) . 
 
 A fine .should be proved by the chirograph, or an exem- Fines. 
 plification under the seal (a) of the Court, or a copy ex- 
 amined with the original roll, and proved by the oath of the 
 examiner (6) : mere office extracts, although often relied on, 
 and generally received liy conveyancers, are not evidence (c). 
 
 A recovery is proved by an exemplification or an ex- Recoveries. 
 amined copy ((?)• 
 
 A sealed certificate by the proper officer of the enrolment Proof nndcr 
 
 ■^ -^ -^ statutes. 
 
 of a disentailing assurance, or any other deed or document 
 enrolled in Chancery, is sufficient j>/7')n4/aci(3 evidence that 
 the same was duly enrolled at the time mentioned in the 
 certificate ; and copies of all enrolments, if stamped with the 
 seal of the Chancery Enrolment Office, arc evidence to the 
 same extent and in the same manner as the original enrol- 
 ments (e). 
 
 So, certified copies of, or extracts from, deeds, documents, Certified 
 
 COT31GS 
 
 maps, &c., deposited in the Office of Land Revenue, Records, 
 and Enrolments, are admissible in every case in which the 
 original would have been admitted as evidence (/). 
 
 ((/) 6 Will. IV. c. 20, ss. 2 & 9. Craven, 2 Moo. & U. HO. 
 
 (2) Mil/ V. Ilandcock, 7 Excb. 820. (i) Burt. Comp. pi. 487 ; Doe v. 
 
 As to the mode and practice of taking Jioss, 7 M. & W. 102. 
 
 acknowledgment, i-Wcin/rrf, Ch.XIII. (c) BuUer's N. P. 227. 
 
 g. 1, ((/) Burt. Comp. pi. 490. 
 
 {a) The loss of the seal is inima- (f) 12 & 13 Vict. c. 109, ss. 18, 19. 
 
 terial, if the document come from the (/) 15 & 16 Vict. c. 62, s. 8. 
 proper custody ; Mayor of Tkvcrky v.
 
 316 THE ABSTRACT. 
 
 Chap. VIIT. Where an estate has been purchased and held for twenty 
 
 Sect. 6. • 1 1 • 1 T T 
 
 years or upwards under a title which depends upon a re- 
 Recovery, covery which has not been enrolled, the deed duly making 
 the tenant to the piwcipe, and leading the uses of the re- 
 covery, is sufficient evidence thereof, as in favour of the pur- 
 chaser, and all parties claiming under him (jj). 
 
 Under Fines The 3 & 4 Will. IV. c. 74, s. 13, provides for the change of 
 
 ^^ct. ' custody of the Records of Fines and Recoveries levied and 
 
 suffered at Westminster, Lancaster, and Durham ; and makes 
 extracts and copies, supplied after such change of custody, 
 as available in evidence as they would have been if supplied 
 in the usual way before the passing of the Act ; and by the 
 5 Vict. c. 32, provision is made for the enrolment, in the 
 office of the Registrar of the Court of Common Pleas at 
 Westminster, of the proceedings in Fines and Recoveries 
 levied and suffered in the Courts of Great Session in Wales, 
 and the Court of Great Session in Cheshire, and for remedy- 
 ing in certain cases defects in the original Records (A), and 
 for supplying evidence of the fines having been levied with 
 proclamations ; and as regards proclamations, the 11 & 12 
 Vict. c. 70, contains a similar provision as to fines at West- 
 minster. 
 
 Proof of grant ^ gi'aut fi'om tho Crowii is regulai-ly proved by an exein- 
 from Crown, plificatioii, or Certified copy ; but if the original be lost, and 
 the vendor's solicitor ascertain and inform the purchaser 
 where the grant is enrolled, the latter cannot, it appears, 
 require a copy, but must examine the enrolment at his own 
 expense (i). 
 
 Of proceed- Proceedings in the Courts of Law and Equity are regu- 
 
 infin ^"""^ larly proved by exemplifications under the seals of the 
 
 Equity. Courts, or authenticated by the signature of the Judge (in 
 
 cases where the Court has no seal) (/•) ; and proof of the 
 
 [rj] 14 Geo. II. c. 20, s. 4. {k) Aloes v. Bwnhury, 4 Camp. 28- 
 
 (/() See Doe v. Price, 16 M. & W, As to foreign and colonial proceed- 
 
 603. ings, see 14 & 15 Vict. c. 99, s. 7 ; as 
 
 (?) Sug. 431. to Irish documents, see sect. 10,
 
 THE ABSTRACT. 317 
 
 seal or signature is rendered unnecessary by the 8 & 9 Vict. Chap. Vlll. 
 c. 113(0. ^"'•'- 
 
 Proceeding's in Bankruptcy and Insolvency are proved by And in 
 
 Baula-uptcy 
 
 copies certified m manner directed by the several Acts {m) ; and Insol- 
 proof of the seals and signatures is rendered unnecessary Ijy '^^^^y- 
 the 8 & 9 Vict. c. 113, and also liy the Bankruptcy Acts of 
 1849, 1861, and 18G9 (oi). 
 
 The fiat, (or, if the case be under the Acts of 1849 or As to the 
 1861 (o), the petition), adjudication, and certificate of ap- proceedings 
 
 in Bank- 
 ruptcy. 
 
 pointment of assignees, if not enrolled, ought to have been 
 entered on record by the vendor, and at his expense ; Mr. 
 Jarman considered that this was necessary, although the 
 bankrupt was willing to join in the conveyance (p) ; Lord 
 St. Leonards held the contrary ; and also, that such a 
 requisition could not be insisted on if it were too late to 
 upset the bankruptcy (q) : and this seems to be the sounder 
 opinion. 
 
 A certificate by the Court as to the appointment of a Proceedings 
 trustee, and as to any change in the trusteeship, is by the miptcy under 
 recent Act made conclusive evidence that the person named * ^'^ ^ ^ ' 
 in such certificate is trustee (r). And a minute signed by 
 the registrar, or other person presiding at a meeting of 
 creditors under the Act, of the resolutions and proceedings 
 
 (0 See last note. (n) See 12 & 13 Vict. c. 106, s. 236, 
 
 (;)i) See, as to Insolvency, 53 Geo. not repealed Ijy the later Act ; and 
 
 III. 0. 102. s. 24 ; 7 Geo. IV. c. 57, see 24 & 25 Vict. c. 134, ss. 203, 204, 
 
 s. 76 (see Doe v. Eians, 1 Cro. & M. 206, 207 ; 32 & 33 Vict. c. 71, s. 109; 
 
 450 ; Doe v. Story, 7 Ad. & E. 909) ; and see General llules 105 & 106; 
 
 1 & 2 Vict. 0. 110, s. 105 ; 5 & 6 and as to the a])pointment of the 
 
 Vict. c. 116, s, 11 ; 7 & 8 Vict. c. 96, trustee being gazetted, see note 111. 
 
 s. 37 ; 24 & 25 Vict. c. 134, s. 206 : (o) 12 & 13 Vict. c. 106 ; 24 & 25 
 
 and as to Bankruptcy, 6 Geo. IV. Vict. c. 134. 
 
 c. 16, s. 97 ; 1 & 2 Will. IV. c. 56, {p) 1 Jarm. Conv. by s. 97. 
 
 8. 29; 12 & 13 Vict. c. 106, ss. 232, {q) Bug. 542 ; see 12 & 13 Vict. 
 
 ct seq. ; 24 & 25 Vict. c. 134, ss. 203, c. 106. s. 236 ; 24 & 25 Vict. c. 134, 
 
 ct seq. ; and see now 32 & 33 Vict. s. 203. 
 
 c. 71, S3. 107, 108. {r) 32 & 33 Vict. c. 71, s. 13.
 
 318 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 at such meeting, is to be received as evidence in all legal 
 proceedings (.s). And any petition, or copy of a petition, 
 in Bankruptcy, or any order or copy of an order, or any 
 cei*tificate or copy of a certificate, made in Bankruptcy, 
 or any deed or copy of a deed of aiTangement in Bank- 
 ruptcy, or any other instrument or copy of an instru- 
 ment, affidavit, or document made or used in the course 
 of any Bankruptcy proceedings, or other proceedings 
 had under the Act, may, if any such instrument or 
 copy appears to be sealed with the seal of any Court 
 having jurisdiction, or purports to be signed by any judge 
 having jurisdiction in Bankruptcy under the Act, be receiv- 
 able in evidence in all legal proceedings whatever {t) ; and 
 provision is made for the admission of sealed copies of the 
 depositions of a deceased witness (it). 
 
 As to awards Copie^ of, and extracts from, every registered award under 
 Copyhold En- the Copyhold Enfranchisement Act, 1852 («), pui-porting to 
 Acr^''^""'''* be sealed or stamped with the seal of the commissioners, i»- ^ 
 evidence, without the necessity of further proof. 
 
 Orders in 
 
 Lunacy. 
 
 So, office copies of orders in Lunacy, purporting to be 
 signed by the Registrar in Lunacy, and sealed or stamped 
 with the seal of his office, are evidence, for all purposes, of 
 such orders (v/). 
 
 Proof of by 
 office copies. 
 
 Office copies, (?'. e., copies made by an officer of a Court 
 under its authority,) although not strictly evidence (z), ex- 
 cept in the causes or matters to which they belong, are 
 received as evidence by conveyancers. 
 
 As to certified And we may here remark, that by the 1 and 2 Vict. c. 94, 
 
 copies of 
 
 records under the Rccords of the Courts of Chancery, Exchequer, Queen's 
 
 0. 94. ^^*' Bench, and Common Pleas, and of the abolished Courts in 
 
 (s) Sect. 106. 
 (t) Sect. 107. 
 {n) Sect. 108. 
 {x) 15 & 16 Vict, c. 51, s. 49 ; and 
 
 see 16 & 17 Vict. c. 57, s. 8. 
 
 (y) 15 & 16 Vict. c. 87, s. 30. 
 
 (z) But see now 14 & 15 Vict. c. 
 99, s. 14, infra.
 
 THE ABSTRACT. 319 
 
 Wales, Chester, Durham, and Isle of Ely, are committed to Chap. Vlll 
 the custody of the Master of the Rolls ; and by sections 12 & ^^^^' ^' 
 13, certified copies of such Records under the seal of the 
 Record Office, are made evidence equally Avith the originals. 
 
 British Diplomatic and Consular agents abroad are em- As to notarial 
 powered to do notarial acts ; and any document, impressed sularA-^nts 
 or subscribed with the seal or signature of any such agent, in 
 testimony of such notarial act having been done by or before 
 him, is sufficient evidence, without proof of the seal or sig- 
 nature (a). 
 
 And by the Act amending the law of evidence (h) it is As to ex- 
 enacted that " whenever any book or other document is of °:}^}^^^^ °r '^^^' 
 
 *' titled copies 
 
 such a public nature as to be admissible in evidence on its under 14 & 15 
 
 . Vict. c. 99. 
 
 mere production from the proper custody, and no Statute 
 exists which renders its contents proveable by means of a 
 copy, any copy thereof or extract therefrom shall be admis- 
 sible in evidence in any court of justice, or before any person 
 now or hereafter haAang by law or by consent of parties 
 authority to hear, receive, and examine evidence, provided it 
 be proved to be an examined copy or extract, or provided it 
 purport to be signed and certified as a true copy or extract 
 by the officer to whose custody the original is entrusted ; " 
 and such copies or extracts are to be furnished on request, 
 at a charge not exceeding fourpence per folio of ninety words. 
 
 Extracts from parochial registers, purporting to Ije signed As to paro- 
 and certified by the curate, have been admitted in evidence, '^^^^ ^^s^*^^"- 
 without verification of his signature, or proof of his beino- 
 the proper custodian of the registers (c). 
 
 The probate, or (if that be lost) an official copy, is usually proof of v-iU. 
 received by conveyancers as sufficient evidence of a will, 
 
 (a) 18 & 19 Vict. c. 42 ; and see (b) 14 & 15 Vict. c. 99, s. 14. 
 
 also as to notarial acts, 15 & 16 Yict. (c) lie Xcddi/ IlulVs Estate, 17 Jur. 
 
 c. 86, B. 22 ; Morgan's Ch. Acts, p. 29 ; incorrectly reported in 2 De G. 
 
 180, and cases there cited ; Taylor, M. & G. 748 ; See Be Porter's Trust 
 
 366. 2 Jur. N. S. 349.
 
 820 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect, 6. 
 
 Under recent 
 Probate Act. 
 
 whether relating to real or personal estate (d) ; although the 
 probate has been held to be in strictness inadmissible even 
 as secondary evidence, in a question of title to freehold (d) 
 or copyhold (e) property : however, in some modern Peerage 
 cases, the copy of a will produced from the Prerogative Office 
 was received in evidence, upon the absence of the original 
 from the office being accounted for (/) ; and it has been held 
 that, under special circumstances, a purchaser of merely real 
 estate might require a testamentary instrument to be proved 
 in the Ecclesiastical Court (g). Now, under the recent Act to 
 amend the Law relating to Probates and Letters of Adminis- 
 tration in England (Jt), where a will affecting real estate is 
 proved in solemn form, or where its validity is disputed, the 
 heir and persons interested in the real estate are to be cited 
 to appear (7') ; and where the will is proved in solemn form, 
 or its validity otherwise decided on by the decree or order 
 of the Court, the probate or a stamped copy of the will is 
 made conclusive evidence of the contents and validity of the 
 will ; except in proceedings by way of appeal under the 
 Act (A:) ; and except in cases where the validity of the will 
 is put in issue, the probate or an office copy is made e^ddence 
 of the will and of its validity and contents ; although it may 
 not have been proved in solemn form, or declared valid in a 
 contentious cause or matter (I). 
 
 Proof of ap- The Probate Act Book of the Ecclesiastical Court is evi- 
 
 execuTors. dence of the appointment of executors (m) ; and an official 
 
 extract from such book has been usually received in 
 
 (d) 4 Jarm. Conv. by S. 178 ; 
 Kerhin v. Kerh'm, 18 Jur. 813. 
 
 (e) Scriv. on Copyhold, 5th edn. p. 
 353 ; Jerroise v. Dale of Northumher- 
 land, 1 Jac. & W. 570 ; but see Archer 
 V. Slater, 10 Sim. G24 ; 11 Sim. 507. 
 And see, as to the jDroof of a will, the 
 original of which is abroad or has 
 been lost, Pullan v. liaivUns, 4 Beav. 
 142, and notes of cases subjoined ; 
 and Jiand v. Macmahon, 12 Sim. 553. 
 
 (/) Fitzwaltcr Peerage, 10 CI. & F. 
 952 ; Braye Pemifje, 6 CI. & F. 7C7 ; 
 
 see, however, the NetlerviUe Peerage, 
 2 Dow. & CI. 342, where Lord Eldon 
 held that proof must be given of the 
 actual loss or destruction of the 
 original. 
 
 ((j) Wcddall V. Nixon, 17 Beav. 
 ICO. 
 
 (A) 20 & 21 Vict. c. 77. 
 
 (/) Sect. Gl, and see sect. 63. 
 
 {h) Sect. 62. 
 
 {I) Sect. 64. 
 
 (m) Cox V. Allingham, Jac. 514.
 
 THE ABSTRACT. 321 
 
 practice, where (as in the case of tracing a title to a Chap. viii. 
 chattel real held in trust) there is little chance of the ^^dll __JlU__ 
 containing a specific bequest of the term which may have 
 been assented to by the executor (/<) ; and such an extract 
 is made evidence by the 14 & 15 Vict. c. 09, s. 14 (o) : where, 
 however, a title has to be shown to a beneficial chattel 
 interest, the risk of there having been such a bequest and 
 consent renders it necessary to examine the entu-e will ; and 
 it is conceived that the purchaser may, in either case, require 
 production of the probate or an office copy. A will thirty 
 years old, produced from the proper custody, proves itself ; 
 and it has been held that the thii-ty years are to be com- 
 puted from the date of the will and not from the time of 
 the death (/)). 
 
 In examining the title to a chattel interest, care should be I" deducing 
 
 ^ title to chattel 
 
 taken to see that probate has been granted by a Court having interests pro- 
 jurisdiction. Where an executor took out prerogative pro- seen to have 
 bate, and died leaving an executor who proved in a Diocesan }^*'^ granted 
 
 ' o I by proper 
 
 Court, the title of the second executor, as a representative of <-'ourt. 
 the original testator, was held too doubtful to be forced upon 
 a purchaser (q). Under the present law this question cannot 
 now arise, for the Court of Probate has the same powers as 
 formerly l»elonged to the Prerogative Court of the Archbishop 
 of Canterbury (/). 
 
 Upon a sale by a devisee of a freehold estate, the purchaser wm need not 
 cannot (-s-), except under special circumstances (f), require the Euuitv. 
 will to be proved in Equity against the heir-at-law. 
 
 It may S(jmetimes happen that a purchaser can require the Documents 
 
 . „ . 111. "^* P^"^ "f the 
 
 production of an instrument, although it forms no pai-t of title must 
 
 («) The clause dispo:<ing of trust (r) See 20 & 21 Vict. c. 77, s. 23. 
 
 estates is generally so worded as to (*) See Volton v. Wihon, 3 P. 
 
 exclude chattels real ; besides which Wms. 190 ; Waheman v. Duchess of 
 
 the de%'isees in trust are usually the Rutland, 3 Yes. 234 ; Maclrell v. 
 
 executors. Hunt, 2 Madd. 37 ; BtUamy v. Liver- 
 
 (o) Dorreit v. Meuot, 15 C. B. 142. scd'jc, Sug. 439 ; Smith v. llibbard, 2 
 
 {p) Man V. Ricletts, 7 Beav. 93 ; Dick, 730 ; in/rd, Ch. XVIII. s. 4. 
 
 see Doe v. Michad, 15 Jur. 679, Q. B. (0 Grove v. Bastard, 2 Ph. 619 ; 
 
 (5) ^Vimams V. Bland, 2 Coll. 575. McCuUoch v. Gregory, 3 K. & J. 12. 
 
 VOL, I. Y
 
 322 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 sometimes be 
 produced as 
 iiCLTativc 
 evidence. 
 
 the title, and although he cannot claim an attested copy on 
 completion : e. g., where property is vested in trustees, in 
 trust to sell, with power to give receipts, and the trusts of 
 the purchase-money are declared by a settlement referred to 
 in the conveyance, it is generally considered that a purchaser 
 can require the production of the settlement for the purpose 
 of seeing that it contains nothing inconsistent with the 
 power to give receipts, nor any other matter affecting the 
 title, but that he is not entitled to any attested copy or 
 covenant for production; and the fact of his not being 
 entitled to such covenant or copy, negatives, it is conceived, 
 the right of any subsequent purchaser to require the produc- 
 tion of the settlement, unless it happen to be in the possession 
 or power of the immediate vendor (iv). It must, however, 
 be noticed, that in a case of Cooper v. Eraerij (x), upon a 
 sale by a party claiming under the heir-at-law of a deceased 
 owner who left a will. Sir L. Shadwell, V.-C, is reported to 
 have held that the purchaser was entitled to inspect the will, 
 but could not insist upon a covenant for its production ; 
 thus, ajDparently, deciding that he was bound to accept a 
 title without the ordinary means of proving its validity on 
 a resale. 
 
 Deficiencies in 
 proof of docu- 
 ments, how 
 far supplied 
 by presump- 
 tion. 
 General rule. 
 
 In many cases, however, where the possession has been 
 consistent with the irrlmd fccie title, presumption may 
 supply deficiencies in proof of the existence, or due execu- 
 tion, of material instruments (^) : the princij^le in the case 
 of deeds (and which, in general, seems equally applicable to 
 other instruments operating inter vivos), being this, viz., that 
 where there has been long enjoyment of any right which 
 could have had no lawful origin except by deed, there, in 
 favour of such enjoyment, all necessary deeds may be pre- 
 sumed, if there be nothing to negative such presumption (z). 
 
 ((/) 2 Ha. 260. 
 
 [x) Cited, 1 Hayes, Conv. 573. 
 
 (y) See Chalmcr v. Bmdlcy, 1 Jac. 
 & W. 63. 
 
 {z) Lyon v. Reel, 13 JI. & W, 2S5, 
 303 ; approved in Creagh v. Blood, 3 
 J. & L. 133 ; and see MoncJc v. Ilusiis- 
 
 son, 1 Sim. 285 ; Att.-Gcn. v. Fish- 
 monyers Co., 5 Myl. & C, see p. 25 ; 
 and early cases collected in Read v. 
 BrooJcman, 3 T. K. 151 ; and see 
 Dclarue. v. Church, 20 L. J. 183, V.-C. 
 K. B. ; and Att.-Gen. v. Ewdmc Hos- 
 pital, 17 Beav. 390.
 
 THE ABSTRACT. 823 
 
 For instance, a grant from the Crown of an advowson Chap. vill. 
 
 (excei^ted in a former grant under general words) has been ' 
 
 presumed as acjainst a purchaser, after an uninterrupted Presumption 
 
 ••■ o i ' -^01 grant from 
 
 possession evidenced by title deeds for 133 years and three Crown. 
 presentations («); so, a grant of foreshore has been presumed 
 from a series of acts of OAvnership over it by an adjoining 
 proprietor (b) ; so, a reconveyance of the legal estate from of reconvcy- 
 trustees has been presumed, the property having for 110 ^"tate! ^^^ 
 years been dealt with without reference to its remaining 
 outstanding, although the enjoyment was consistent with 
 the supposition of such being the case (c) : so, the fact of lease by 
 of a lease having been duly executed has been lield suffi- counterpart!* 
 ciently proved by the production of the counterpart (c?) : of copyhold 
 
 surrGiitlGr 
 
 so, where copyholds were devised to trustees, upon trust 
 to pay testator's debts, funeral expenses, two annuities, 
 and a legacy, and then to convey the premises to T. W.; 
 and T. W. was admitted in 1771, and a party claiming un- 
 der him accepted an enfranchisement in 1701, the validity 
 of which was considered to depend upon the regularity of 
 T. W.'s admittance, a prior surrender by the trustees to the 
 use of T. W. was presumed as between vendor and pur- ^/^^t^^g "'^ ^^ 
 chaser («) : so, payment of a mortgage debt, and a recon- and of recon- 
 
 „ , , , IT T I'i vevance. 
 
 veyance of the legal estate, have been presumed alter an 
 interval of eighty years, the mortgage not being subsequently 
 mentioned in the title deeds, and the mortgage deeds having 
 for twenty-five years been in the possession of the vendor 
 and his ancestors, during which period no claim, it was 
 alleged, had been made for principal or interest (/) ; but the 
 lapse of forty-six years from the death of a testator, and of 
 thirty-nine years from the last notice of legacies charged by 
 his will, has been held insufficient to warrant a presumption 
 
 (a) Gibson v. Clarl; 1 Jac. & W. (r) llillnry v. Waller, VlYe^. 2Z^ \ 
 
 159; Att.-Gcn. v. Evxlmc Hospital, and sec Emcrij \. Grocock, 6 Madd. 
 
 ubi supra; and sec Re Alston, 5 W. 11. 54 ; and Xod v. Bcivloj, 3 Sim. 103. ^ 
 189. i'l) Howjhton v. Konifj, 25 L. J. N. 
 
 {b) Cahnadjj v. Rovx, 6 Com. B. 861. S. C. V. 218. 
 The i^resumption does not so reailily (c) Wilson v. Allen, 1 Jac. & W. 
 
 arise in the case of a Crown or public Gil. 
 
 grant, as in the case of a grant from a (/) Coohc v. SolUm, 2 Sim. & St, 
 
 private person. 154. 
 
 Y 2
 
 324 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Sect. (3. 
 
 Of surrender 
 to use of will. 
 
 Of enfran- 
 chisement. 
 
 Of mesne 
 assignment of 
 terms. 
 
 of their payment {g) : so, where property was demised in 158C 
 tor 2000 years, with a covenant to convey the fee, if required, 
 by the lessees within seven years, it was presumed, from the 
 dealings with it, that the property was freehold in 171 o; and 
 the presumption was not rebutted by its having been treated 
 as leasehold in documents subsequent to that date (It). So, 
 payment of purchase-money has been presumed after forty 
 years (l) : so, where a memorandum of deposit, by way of 
 equitable mortgage by a former owner, is found with the 
 title deeds, it will be presumed that the charge has been 
 satisfied or released (/.■) : so, after forty years' possession of 
 copyholds under a will, a surrender to the use of the will 
 was presumed in an early case (1) : so, the enfranchisement 
 of a copyhold has, after an enjoyment of IGO years, been 
 presumed even against the Crown (in) : so, in general, it will 
 be presumed that mesne assignments of attendant terms 
 have been regularly made (a). 
 
 Presumption 
 of surrender. 
 
 " The current of the later authorities shows that where a 
 term has been assigned to attend the inheritance, a surrender 
 ought not to be presumed, unless there has been a dealing 
 with the estate, in which reasonable men and men of business 
 would not have dealt with it, unless the term had been put 
 an end to " (o) ; but such surrender is not to be presumed 
 from a mere lapse of time (p); nor can it be presumed by a 
 Court of Law, without the intervention of a jury (q). The 
 Act of 8 & 9 Vict. c. 112, has deprived the doctrine of much 
 of its practical importance: it must, however, be remembered 
 
 {(j) Shlehh V. Ii!re, 3 Jur. 950 : and 
 see Warren v. Butcman, 1 Fl. & K. 
 448, as to the insufficiency of the 
 evidence of non-payment, out of the 
 particular lands, of interest upon 
 charges which also affect other lands; 
 et vide ivfru. 
 
 (h) Jeffreys v. Machu, 29 Beav. 344 ; 
 but see Pickett v. Packham, L. R. 4 
 Ch. Ap. 190. 
 
 (i) Bidlal-e V. Arinuhl, 1 Ch. R. 
 50. 
 
 {k) Nicoll V. Chamlers, 11 C, B. 
 
 996; hut the jjoint docs not seem to 
 ha\e been discussed. 
 
 (/) Li/ford V. Coward, 1 Vern. 195. 
 
 (m) Roe V. Ireland, 11 East, 280. 
 
 (>i) Earl V. Baxter, 2 W. Bla. 
 1228 ; White v. Foljamhe,\\ Ves. 3.37, 
 350. 
 
 (o) Per Cur. in Garrard v. Tach, 8 
 C. B. 249. 
 
 {[>) Doc V. Lancjdon, 12 Q. E. 711, 
 719. 
 
 Ql) CottrcU V. Ilur/hes, 15 C. B. 532.
 
 THE ABSTRACT. 325 
 
 that the Act is not of universal application (r) ; and tliat Chap. VIIT, 
 where it applies, a vendor innst still show in whom old terms ^^ ' ' 
 supposed to have been destroyed Iw the Act, were vested on 
 the day when it came into operation ; and that they were 
 then attendant on the inheritance : so that the doctrine above 
 referred to, of presuming the existence of mesne assignments, 
 is still of practical moment. 
 
 So, the grant of an easement will bo presumed after Of grant of 
 twenty years' enjoyment («) ; but, to raise such presumption, ^'^''®'"'^° • 
 it is necessary to show, not only enjoyment, but that the 
 party to whom the grant is attributed had power to make 
 
 it (0. 
 
 Land in Kent is presumed to be of gavelkind tenure of lan.i held 
 (unless shown to be disgavelled) : but the presumption may ^° g«ivelkind. 
 be rebutted, by showing, from Domesday Book, that it was 
 then held in frankalmoign : or, in the case of a manor, 
 (including its demesnes, hut excluding the tenemental free- 
 holds (it),) that it was held in ancient demesne ; or that it 
 was held by barony (x), or by great or little serj canty (t/), or 
 by knight-service (z). The appendix to a valual^le work («) 
 upon the Kentish tenures, gives a list of nearly 600 manors 
 in the county, which were held l>y knight-service : and 
 which, as also the lands formerly held of them, including 
 the enfranchised copyholds, descend according to the common 
 law ; although most of them have been long considered to 
 be of Q;avelkind tenure. 
 
 ()•) Vide supm, p. 280. P. Cooper, 3-29), ride i)ifr('i ; and as to 
 
 (s) See Darwin v. Uplov, cited 3 the Prescription Act having super- 
 
 T. R. 159 ; and later cases cited in 4 seded the necessity of presuming a 
 
 Jarm. Conv. 151. h'st grant, see Lord Westl)ury's judg- 
 
 (t) Barker v. Richardson, 4 B. &. meut, in TapHng v. Jones, 11 H. L. 
 
 Aid. 579 J as to the statutory title Ca. 290 ; 34 L. J. N. S. C. P. 342. 
 
 which may be acquired under the (") Elton on the Tenures of Kent, 
 
 Acts, and which is independent p. 183. 
 
 of the title which may be acquired (x) Ibid. p. 107. 
 
 under the ordinary doctrine of pre- (>j) lb. p. 221. 
 
 sumption ( Wclomic v. Upton, 5 M. (:) Ih. p. 280. 
 
 & W. 393 ; Dcu-kirst v. Wri'jky 1 C. {n) Elton, e'iprO.,
 
 320 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Of the forma- 
 hties of deeds. 
 
 Notwith- 
 standing 
 mutilation. 
 
 Of livery of 
 seisin. 
 
 Of appoint- 
 ment of In- 
 closnre Com- 
 missioners. 
 Of deeds 
 ha^^ng been 
 duly stamped. 
 
 But not of 
 forms required 
 by Law on 
 
 So, the formalities of a deed arc readily presumed; for 
 instance, sealing and delivery will be presumed from proof 
 of signing, and the whole will (if the deed comes from proper 
 custody) be presumed after thirty years without any proof 
 at all (b) ; or within that time from proof of a deceased sub- 
 scribing witness's handwriting (c) : and this rule is not 
 confined to deeds or wills, but extends to all written docu- 
 ments, provided that they purport to be thirty years old, 
 and come from the proper custody (d). In a modern case, 
 the House of Lords held that a parchment writing, purport- 
 ing to be the first skin of an indenture consisting originally 
 of two or more skins, and severed by a sharp instrument, 
 but which came from the proper custody, was properly 
 received in evidence in ejectment ; and that the mutilation 
 of a deed forms an objection rather to the value than to the 
 admissibility of the evidence (e) : so, livery of seisin will be 
 presumed after twenty years' consistent possession (/) : so 
 it will be presumed that persons who have executed an 
 award under the general Inclosure Act, were regularly ap- 
 pointed and took the necessary oaths (g) : so, it will be 
 ( presumed that an instrument, duly executed and which is 
 lost, was also didy stamped (Ji) ; unless the particular cir- 
 cumstances of the case forbid such a conclusion ; as where 
 the instrument has been fraudulently destroyed by the party 
 chargeable thereon, and it can be shown to have been un- 
 stamped when it came into his possession (i) : so also that 
 stamps, the amount of which is obliterated, were of the 
 right amount (/i) : l)ut the Courts will not presume that 
 forms have been com2)lied with, which the Legislature, upon 
 
 (h) As to loss of a seal, vide suprw', 
 p. 315. 
 
 ((•) Gresley on Ev. 482. 
 
 ((?) Taylor, p. 94. Quare, whether 
 the rule applies to a deed under the 
 Beal of a corporation ? 
 
 (c) Lord Trimlestoicn v. Kcmmis, 
 9C1. &F. 773,775. 
 
 {f) Rees V. Lloyd, Wight, 123 : and 
 see Doe v. Gardiner 12 C. B. 333. 
 
 (n) ijnsamaj-ir v. !i(rode, 5 Sim. 87, 
 
 98 ; 2 Myl. & K. 70S. 
 
 (h) Hart v. Hart, 1 Ha. 1 ; and see 
 Uwjhes V. Clarl; 15 Jur. 430, C. P., 
 case of a coimterpart lease ; Closma- 
 deitc V. Caml, 2 Jm-. N. S. 474 ; 18 
 C. B. 36. 
 
 (0 Smith V. Henley, 1 Ph. 391 ; and 
 see Blair v. Ormond, 1 De G. & S. 
 423. 
 
 {1-] Doe V. Cocmls, G Jur. 980, Q. B.
 
 THE ABSTRACT. 327 
 
 grounds of general policy, has made essential to the validity Chap. viii. 
 
 of an instrument ; as, for instance, the enrolment under tlie ' 
 
 Statute of Charitable Uses of the conveyance of an estate leneral*^ °* 
 to trustees for a charity (/) : nor will the Court presume the policy ; 
 surrender of a prior life estate in order to set up a recovery, 
 on the mere ground that, without it, there would have heen 
 no valid tenant to the prrecipe (iri): and there would seem to 
 be, in general, a difficulty in presuming any fact or docu- nor, se^nUc, of 
 ment which, had it ever occurred or existed, ought to remain record.^ " 
 on record. 
 
 And it seems that, as a ii'eneral rule between vendor and General rule 
 
 f • ' 
 purchaser, the latter must admit, as presumptions, all matters sumption be- 
 
 which, in a Court of Law, the iudo-e would clearly direct ^'•'■'^''^ vendor 
 
 *^ ° -^ and pur- 
 
 the jury to presume ; but not matters as to which the chaser. 
 judge woidd leave it to the jury to pronounce upon the 
 effect of the evidence (n). 
 
 And now, as between vendor and purchaser, under a con- Kule as to 
 
 tract made since 1874, and subject to any stipulation to the beinf evidence 
 
 contrary in the contract, recitals, statements, and descrip- "'^'^f ^^*^^*^„Y; * 
 ^ ■'■ J-. Act, 18/ -1. 
 
 tions of facts, matters, and parties contained in deeds, in- 
 struments. Acts of Parliament or statutory declarations 
 twenty yeai's old at the date of the contract, are, unless 
 and except so far as they shall be proved to be inaccurate, 
 to be taken to be sufficient evidence of the truth of such 
 facts, matters, and descriptions. It is conceived that this 
 and the other rules laid down by sect. 2 of the recent Act, 
 could not be held to apply to a case in which an option of 
 purchase or right of pre-emption has been created on or 
 before the 31st December, 1874, and is exercised so as to 
 perfect the contract at a later date : but upon this, as 
 upon some other points, the Act will probably have to be 
 elucidated by judicial decision or future legislation (o). 
 
 (Z) Doe V. Watertoii, 3 B. & Aid. Iltllanjx. Walla; 12 Ves., see p. 270 ; 
 149 ; Wrlfjht v. Sniythies, 10 East, 409. see Baldwin v. Peach, 1 Y. & C. 453, 
 
 {m) Penny v. Allen, 3 .Tur. N. S. which, however, was not a case be- 
 273 ; 7 De G. M. & G. 409. tween vendor and purchaser. 
 
 (n) Eincrij v. Grococlc, G Madd. 54 ; (o) 37 & 33 Vict., c. 78, sect. 2, sub- 
 
 soct. 2,
 
 328 
 
 THE ABSTRACT. 
 
 Chap. VITI. 
 Sect. 6. 
 
 Evidence of 
 matters of 
 fact. 
 
 As to what 
 facta the pur- 
 chaser can 
 re(iuire to be 
 proved. 
 
 As respects evidence upon matters of fact (other than 
 docunientary facts), it may, it is conceived, be laid down as 
 a general rule, that a purchaser can, in strictness, require 
 evidence of all facts material to the title from the date at 
 which its regular deduction commences, whether such facts 
 are to be used as positive or negative proofs ; that is, of all 
 facts whose existence must be either proved or assumed in 
 order to establisli affirmatively the vendor's title, e.g., the 
 heirship of a vendor who claims by descent; and of all 
 facts the existence of which must be either proved or 
 assumed in order to establish such title merely by dis- 
 placing the known or presumptive title of others ; e.g., the 
 failure, determination, or release of some prior estate or 
 incumbrance the existence of which is either known, or 
 may be presumed as between vendor and purchaser: so 
 also, he may require a satisfactory explanation of matters 
 which tend to impeach the validity or sufficiency of the 
 abstracted instruments {[)). 
 
 Negative evi- 
 dence cannot 
 be required if 
 not in vendor's 
 possession or 
 power, but 
 vendor must, 
 if he can, 
 answer all 
 relevant 
 questions. 
 
 But, as a general rule, a purchaser cannot compel the 
 vendor to procure evidence for the purjDose of negativing 
 mere possibilities ; although he may re({uire him to answer 
 to the best of his knowledge any relevant question on the 
 subject, and to furnish all evidence in his j)ossession or 
 power {q) ; e.g., where a power has been created, and there 
 is no trace of its subsequent execution, the purchaser, 
 although he can require the vendor and his solicitors to 
 state whether to their knowledge or belief the power was 
 ever exercised, and may, perhaps, require the vendor to 
 make a statutory declaration upon the point, cannot, it is 
 conceived, call for such a declaration by any other person ; 
 neither can he require the vendor to search for judgments 
 or other incumbrances ; so, neither,, where the title com- 
 mences with a conveyance by a person who conveys as heir- 
 at-law, can the purchaser require any other evidence of the 
 
 {p) See lIohMn v. Dell, 3 Jur. 190 : a vhlc Infra, Ch. IX. s. 4. 
 Case of erasure.^, as to which, however, (q) Vide S"pra, j). 15-.
 
 THE ABSTRACT. 329 
 
 ancestor's intestacy than such (if any) as is in the vendor's Chap. Vlii. 
 possession (/•) : so, where a vendor is or has been married, ' 
 
 the purchaser should inquire whether any settlement was 
 executed on his marriage, and, if this were the case, may 
 require to see the settlement if in the vendor's possession or 
 power ; but if the vendor cannot produce it or a copy, the 
 purchaser, it is conceived, must rest content with his assur- 
 ance or statutory declaration that it did not affect the pro- 
 perty in question ; although, as a matter of prudence, he 
 should, of course, make inquiries of the wife's family on the 
 subject. In fact, the general rule would seem to be, that, 
 where a primd facie title is shown, the purchaser can re- 
 quire no e\ddence, not in the vendor's possession or power, 
 tending to negative any matter, the existence of which may 
 not be presumed, either from the contents or nature of the 
 abstracted documents, or by the ordinary rules of Law or 
 Equity. 
 
 And it seems that, where a piinid far'ie title is shown. But vendor 
 the purchaser cannot require from the vendor a general ex- 'prima lane 
 planation of circumstances which the purchaser may consider '^^^^'^ ^"^^^ "°' 
 
 •*■ i ^ answer mere 
 
 to be of a doubtful character, but must confine himself to general 
 questions directed to the particular defect which he appre- questfons ; 
 hends : where, for instance, a tenant for life with power of 
 appointment exercised such power in favour of his eldest 
 child, and the father and child then concurred in morto-ao-ino- 
 the property (a transaction which is iwhiM facie valid under 
 the authority of M'Qu.een v. Farquhar («),) upon a suit for 
 specific performance, and an examination of the vendor upon 
 interrogatories, an interrogatory as to the existence of an 
 underhand agreement that the child should join in the mort- 
 gage was not excepted to by his counsel, and appears to 
 have been considered unobjectionable by the Court ; but a 
 general interrogatory as to "what was his motive or object 
 in making the appointment" was held to be inadmissible (t). 
 
 {,') Sug. i39. Beav. 19. 
 
 («) 11 Ves. 467 ; and see C'ockroft (t) Pcane v. Pearsc, 1 De G. & S. 
 
 V. Sutchje, 2 Jur. N. S. 323; and 12, 16, & 17. 
 compare Hannah v. llod'json, 30
 
 830 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 and need not 
 give explana- 
 tions in re- 
 spect of an 
 adverse notice 
 which has not 
 been acted on : 
 
 And where an appointment had been made under similar 
 circumstances in favour of an eldest child who joined with 
 the parents in mortgaging the estate, and upon the mort- 
 gagee attempting a sale one of the younger children gave 
 notice to the pvu'chaser not to complete, stating that the 
 appointment was a fraud upon the power, Init not alleging 
 any fact in suj)port of this assertion, and did not follow up 
 the notice by any proceeding, it was held, that a good title 
 was shown, and that the notice did not oblige the vendor to 
 render any further explanations (a). 
 
 Where, however, at a sale by auction by mortgagees under 
 their power, a person entitled to redeem made a tender of 
 the principal and interest, which was refused, and the sale 
 proceeded, it was held that the purchaser, who saw the 
 tender made and refused, was bound to make further in- 
 quiry (x). 
 
 but has under 
 special cir- 
 cumstances 
 been required 
 to prove in 
 Equity a will 
 already esta- 
 blished by a 
 verdict at 
 Law. 
 
 And where a will had been executed in favour of (^mtcr 
 alios) the medical man and solicitor of the testator, and the 
 heir-at-law disputed the will and Ijrought an ejectment, but 
 a verdict was given for the defendants, it was, nevertheless, 
 held by Lord Cottenham, that a purchaser could require the 
 devisees to file a bill to establish the will against the heir (i/). 
 
 Vendor need 
 not disclose 
 confidential 
 communica- 
 tions. 
 
 It appears, that the purchaser cannot require the vendor 
 to disclose confidential communications made by him to his 
 solicitors or counsel, or cases laid before counsel respecting 
 the property, although the same were made and prepared 
 merely on behalf of the vendor, and not during a suit, or 
 during a dispute, or after the threat of a suit (s). 
 
 («) Green v. Puhford, 2 Beav. 70. 
 
 {x) Jenkins v. Jones, 6 Jur. N. S. 
 391. 
 
 (ij) Grove v. Bastard, 12 Jur. 385 ; 
 2 Ph. CI 9 ; but the will being esta- 
 blished, Lord Truro made him pay 
 costs in the suit for specific perform- 
 ance, 1 De G. M. & G, G9 ; infra, Ch. 
 
 XV III. ; and see M'CuIloch v. Gregory, 
 3 K. & Jo. 12. 
 
 {z) Pearse v, Pearse, 1 De G. & S. 
 12 ; infra, Ch. XV. s. 5 ; and see 
 further as to confidential communi- 
 cations ante litem motam, Macfarlan 
 v. Pwlt, L. R 14 Eq. 580; and ca.ses 
 there cited.
 
 THE ABSTRACT. 
 
 331 
 
 Where the title is derived through an heir who took pos- Chap. Vlll. 
 
 session upon the ground of the assumed invaUdity of his — ^ — 
 
 ancestor's will, which professed to deal with the estate, a ^^^^'^^^.^ 
 
 purchaser may require the production of the will or evidence will as nega- 
 
 i J I 1- tive evidence. 
 
 of its contents (ct) : so, on a sale by a devisee or party claim- of heir's primd 
 ing under him, the purchaser may require the production of -^'""^ 
 any subsequent will or codicil, or evidence of its contents (h). 
 What the rule may be in cases where a will is known to 
 have existed, but there is nothing to indicate that it pur- 
 ported to affect the property in question, seems to be more 
 doubtful. The purchaser would, no doubt, be entitled to see 
 either the original or the best evidence of its contents which 
 the vendor had the means of supplying (c) ; Ijut if none such 
 could be procured, and, after making inquiries on the subject, 
 no special grounds for supposing the estate to be affected by 
 the will were found to exist, the purchaser, it is conceived, 
 would be obliged to take the title ('/). 
 
 Where codicils are referred to, but not abstracted, on the Codicils 
 
 ilescribed as 
 
 alleged ground that they do not affect the devises contanied immaterial 
 in the will, the purchaser should always require them to be pJoj^ed. 
 produced, in order that he may satisfy himself that such is 
 the case. 
 
 Where the title is deduced through trustees or mortgagees. Will of 
 
 " surviving 
 
 the will of the last surviving trustee or mortgagee, though trustee or 
 
 . . ./in- r> 1 L i- ^ mortffao;ee 
 
 not contamnig any specihc devise of trust or mortgage ghouiti b^ 
 estates, should be abstracted, and probate or office copy pro- produced. 
 duced, if it contains any general devise. It is frequently 
 overlooked in the preparation of the abstract, that a mere 
 general devise is sufficient to pass estates vested in the tes- 
 tator as trustee or mortgagee, unless from the form of the 
 limitations, or from the purposes to which the testator has 
 devoted the property, or from other circumstances, an inten- 
 tion can 1)0 inferred that trust and mortgage estates should 
 
 (rt) Stevens v. Gupivj, 2 Sim. & St. {r) See Coojxr v. £nicyi/, Hayes on 
 
 439_ Conv. 573, 3rd ed. 
 
 (h) See and consider. IlowaHh v. ('0 See the remarks of Wigram, 
 
 Smi'h, C Sim. IGl. V.-C!., 2 Ha. 260.
 
 332 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 not pass. What is sufficient evidence of such an intention 
 can, in many cases, only be ascertained by an attentive 
 perusal of the whole will. It appears to have been con- 
 sidered that the introduction into the devise of words of 
 severance will not prevent such devise from operating upon 
 trust and mortgage estates (e) ; but the case usually relied 
 on as an authority seems scarcely to warrant such a conclu- 
 sion (J) : at any rate as respects ti-ust estates. 
 
 How far ^i^^l it is the universal practice where a descent has occun-ed 
 
 vendor bound ^yithin a recent period, to require proof of the ancestor's 
 proof of iutes- intestacy as respects the property offered for sale, even 
 although no trace of a will appears on the title : how far 
 this can in strictness be insisted on (except as respects 
 evidence which the vendor may have in his own possession 
 or power), is perhaps doubtful: the length of time which 
 may be considered sufficient to render such evidence unim- 
 portant must depend upon the state of the particular title : 
 where an estate has been repeatedly sold or mortgaged, an 
 interval of thirty or forty years is generally considered 
 satisfactory. 
 
 Purchaser _ A purchaser is not entitled to copies of any instruments 
 
 copies of docu- wliich are produced merely to negative a j)ossibility, and which 
 
 dliTed ^° ^^^ could not have compelled the vendor to produce if they 
 
 negative evi- had not been in his possession. 
 
 dence. 
 
 Statutory 
 declaration of 
 vendor wheu 
 insufficient. 
 
 The unsupported statutory declaration of the vendor as to 
 a matter of fact material to the title, and peculiarly within 
 his own knowledge, although very often accepted in practice, 
 is not such evidence thereof as a purchaser is bound to ac- 
 cept (g) ; and it must be remembered that although statutory 
 declarations by disinterested persons form in many cases 
 the only evidence available to the conveyancer, and may be 
 sufficient as between vendor and purchaser, such declarations 
 
 (e) See 1 Jarm. Wills, 661. 
 (/) Ex iiorte Whitcacre, cited 1 
 Sand, U.=e3 and Trusts, 359, n. ; and 
 
 see comments on this case, 1 Jann 
 Wills, 662. 
 
 (y) ffohson V. Bell, 2 Beav. 17.
 
 THE ABSTRACT. 333 
 
 Sect. 6. 
 
 except in cases where the g-encral rule i.s relaxed by reason of Chap. VIII. 
 the deaths of the declarants and of the declarations being- in 
 respect to matters of pedigree, and made by members of the 
 family, or being against the pecuniary or proprietory 
 interests of the declarants, are not evidence in hostile litiga- 
 tion with third parties. 
 
 The want of evidence of matters of fact (other than docu- Want of proof 
 
 of material 
 
 mentary), as well as of the existence of documents conferring facts may be 
 a title, may, however, be supplied by presumption ; and the presumption. 
 I'ule laid down in Einerij v. Grocock (h), as to a purchaser 
 being bound to presume whatever a judge at Law would 
 clearly direct a jury to presume, applies (it is conceived) 
 generally, although not universally (/), to questions of 
 matters of fact between ven<lor and purchaser (/.■). 
 
 Thus, where, in construing an ancient deed, a questi(m Evidence of 
 
 (. • 1 i modei'n usage 
 
 arises as to what passed l)y the terms ot a particular grant, as to what 
 
 , 1 • i p 1 J? ^„ , ,v. passed under 
 
 modern usuage and enjoyment lor a numlier ot years, is ;^^c;^,,Jt 
 evidence to raise a presumption that the same course was giants, 
 adopted from an earlier period ; and so to prove a similar 
 usuage and enjoyment at the date of the deed (/). 
 
 So, where, in 1801, an allotment under an Inelosure Act J^f'XTtityTf 
 was made to A. in lieu of four acres of common field land, parcels, 
 the Court, in 1847, assumed in the absence of evidence to the 
 contrary, that the four acres formed part of five acres and a 
 half of common land comprised in a deed dated in 1784 (m); 
 but the vendor was held bound to make inquiries on the 
 subject, and to produce the best evidence in his power of the 
 
 (h) Stqmt, p. 326 ; G Madd. 51. was included in the term " village" in 
 
 ((■) See Sug. 399. a lease granted in 1704 ; and see also 
 
 (k) SeeXrt/)/(amv.P/iT, Rolls, 1831; Dale of Beaufort v. Mayor of Swansea 
 
 cited in Atkinson on Marketable Titles, 3 Exch. 413 ; and see Rex v. Oshourne, 
 
 397_ 4 East, 327 ; Att.-Gen. v. Funster, 10 
 
 (/) See Lord Watcrpark v. FenneU, Yes. 338 ; Bailiffs, d-c. of Teiohshunj 
 
 5 Jur. N. S. 1135 ; 7 H. L. Ca. G50 ; v. Brivkncll, 2 Taunt, 120. 
 
 where the question was as to what {m) Major v. Ward, 5 Ha. 604.
 
 334 
 
 THE ABSTRACT. 
 
 Chap. VIII. five acres and a half having formed the only commonable 
 __!!L^_!__ land belonging to the allottee (n). 
 
 Of identity of 
 . nclividuals. 
 
 Of seisin. 
 
 So, where a person, whose name and description correspond 
 with those of a person previously named in the title, deals 
 with the property in a mannei' consistent with the supposition 
 of the two being identical, such identity must, in the absence 
 of any reasonable grounds for suspicion, be assumed by a 
 purchaser : this doctrine seems to be supported by a decision 
 in the case of the Bvcuj Barony (o), where it was held 
 sufficient to identify A. — described in the ancient record, as 
 of B. — with a person named A. in the pedigree, to show 
 aliunde that the latter held land in B. 
 
 Seisin may be presumed from facts which tend to show 
 that the ancestor or testator acted as if he were the owner 
 of the premises ; e.g., the production of leases which he has 
 granted, and Avhich have been followed by possession or 
 payment of rent {]i) ; or of a grant of an annuity by a 
 person in possession, and which states that A. B. is the 
 legal owner of the fee {q) ; or the production of receipts for 
 rent given to persons who are proved aliunde {e.g., by the 
 production of land tax assessments, entries in parochial rate- 
 books, kc), to have been in the occupation of the premises ; 
 or by the declarations of such occupiers that they held of 
 the party in question : but mere personal occupation, although 
 sufficient to raise a presumption of title in ejectment (r), 
 does not appear to have that effect as between vendor and 
 purchaser (.s). 
 
 1 
 
 {„) S. C, 12 Jur. 47(). And see 
 Garrard v. Tuck, 8 C. B. 2i8. As to 
 the identity of lands of ecclesiastical 
 and collegiate corporations, see 2 & 3 
 WiU. IV. c, 80 ; of enfranchised copy- 
 holds, see 4 & 5 Vict. c. 35, s. 21 ; 
 and 15 & 16 Vict. c. 51, s. 24 ; and 
 of lands charged with tithe-commu- 
 tation rent-charge, see 1 Vict. c. C9, 
 8.9. 
 
 Cited Hub. on Ev. 465. 
 See Clarkson v. Woodkousc, 5 
 412 ; White v. Lisle, 4 Madd. 
 Welcome v. Upton, 6 M. & W. 
 
 T. K 
 
 214; 
 536. 
 
 (q) Doe V. C'oi'Mrcd, 7 Ad. & E 
 235. 
 
 131. 
 
 Doc V. r enfold, 8 Car. & P. 536. 
 See 13 Ves. 122 ; Hub. on Ev.
 
 thp: abstract. 335 
 
 Strips of waste lying beside an ancient liighway or a Chap. Vlll. 
 river are, together with the soil to the middle of the way 
 
 or river, presumed to belong to the owner of the adjoining 8^x1^^*^ 
 inclosed lands (f) : this presumption, however, seems to arise waste, 
 only as between such owner and the lord of the manor ; 
 and does not apply as between jDarties deriving title through 
 different conveyances from a former owner of both the 
 inclosed and waste land {uj) ; and, even as against the lord 
 of the manor, although it is not essential that the encroach- 
 ment should be contiguous to, or have any direct commu- 
 nication with, the adjoining enclosed lands («), yet the 
 presumption may be rebutted by the circumstance of the 
 strip comnnniicating with a common or other large piece of 
 waste (i/), or by the fact that other strips, lying along the 
 same highway but not necessarily adjoining the locivs in 
 quo (z), are held adversely to the landowner («) ; nor does 
 the presumption arise where the highway is modern, as, 
 e.g., where made under the General Inclosure Act (6). 
 Accretions to riparian property, caused by the gradual 
 action of the stream, follow in title the adjoining land. 
 
 Seisin beinof once proved, or presumed, will be presumed ^^ contimi- 
 
 o •"• ^ ^ ance of seisiu. 
 
 to have continued until the contrary is shown (c). 
 
 Intestacy is a fact which, strictly speaking, docs not admit Of intestacy, 
 of proof, but is merely matter of presumption : letters of ad- 
 ministration are, in the absence of special circumstances, 
 received by conveyancers as sufficient to raise the presump- 
 tion ; so is a will or probate of a will not affecting the estate 
 in question, nor putting the heir to his election. 
 
 (<) 1 Jarm. Conv. by S. 79, and 1 C. P. 250, and vide siqmi, p. 
 
 cases there cited ; and, in particular, (y) Grose v. West, 7 Taunt. 39, 
 
 Lord Tcnterdeu's judgment in Slcelv. (:) Sim^json v, Dcnihj, 2 Jur. N. S. 
 
 Prld-dt, 2 Stark. 463 ; Bendi/ v. G 12, in the Exch. Ch. 
 
 Simpson, 6 Jur. N. S. 1197 ; 8 C. B. {a) Doc v. Ilampson, 4 C, B. 267- 
 
 N. S. 433 ; afFd. in the Exch. Ch. 7 {Jj) Hex v. Ilatficld, 4 Ad. & E. 150'. 
 
 Jur. N. S. 1058, (c) C'ockmaii \: Farrar, HirT.Jonos, 
 
 (u) White V. mil, 6 Q. B. 487. 182. 
 
 (.«) Earl of Li sb urn v. Davis, L. R.
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Of official ap- 
 pointments. 
 
 Of peri^on last 
 entitled 
 having been 
 the purchaser, 
 and stock of 
 descent. 
 
 Presumption 
 in mattei-s of 
 pedigree - of 
 legitimacy of 
 child bom in 
 wedlock. 
 
 So, it will be presumed that persons who have acted in 
 official capacities were duly appointed thereto ('?)• 
 
 So, the statutory presumption that the person last entitled 
 to land was the purchaser, and the stock of descent under 
 the late Inheritance Act, will hold good as between vendor 
 and purchaser (e). It has been observed, in a valuable work 
 upon evidence (/), that the presumption cannot safely be 
 relied on by the conveyancer, because it might, after com- 
 pletion, be shown in litigating the title that such owner had 
 not purchased but inherited the land, and that the vendor, 
 though the heir of the immediate, was not the heir of the 
 more remote ancestor : this, no doubt, is true ; but in every 
 case oi presiimptlon there is likewise a risk of the conclusion 
 being shown to be unfounded. And in a late case it has 
 been decided, that until some proof to the contrary is ad- 
 duced, a vendor may rely on the statutory presumption, 
 without any obligation to produce affirmative evidence in 
 his possession ; though he is bound to disclose matters 
 within his own knoAvledge which tend to rebut the presump- 
 tion {(j). 
 
 Thus also, (to come to matters of pedigree,) it is a general 
 presumption of law that a child bom in wedlock, even a 
 day after the marriage {h), is the child of the husband : and 
 this, although the parties have separated by voluntary agree- 
 ment (i), and the wife be living in adultery (/i-): but the pre- 
 sumption does not arise in the case of a child born after an 
 interval, exceeding the usual period of gestation, since the 
 date of a divorce dmensdet thoro (I); or, it is imagined, since 
 
 ((?) See, as to Inclosure Commis- 
 sioners, C'asamajor v. Strode, 5 Sim. 
 87, 98 ; 2 Myl. & K. 70S ; as to 
 Churchwardens, Ganvill v. Uttinrj, 9 
 Jur. 1081, Ex. ; as to Charity Trus- 
 tees, Att.-Gen. v. Dcdton, 13 Beav. 
 141. 
 
 (f) See 3 & 4 Will. IV. c. 106, 
 s. 2 ; BvrUiKj v. Claydon, 1 H. & M. 
 402. 
 
 (/) Hubback, p. 121. 
 
 (fj) Dorling v. Claydon, 1 H. & M. 
 
 402. 
 
 (/() SeeCo. Litt. 244 a. 
 
 (0 Parish of St. Gcorrjc v. St. Mar- 
 fjaret, 1 Salk. 123. 
 
 (k) Bury v, PhlUpot, 2 Myl. & K. 
 349 ; Morris v. Davies, 5 CI. & F. 
 163 ; liar grave v. Ilanjrare, 9 Beav. 
 555 ; The Queen v. The Inhahilants of 
 Mansfield, 1 (J. B. 444, 
 
 (/) Parish of St. George v. St. Mar- 
 garet, 1 Salk. 123.
 
 THE ABSTRA<'T. 837 
 
 tlie commencement of the suit in tlie Ecclesiastical Court. Chap. viii. 
 
 The ordinary presumption is not to Ije rebutted by circum- __!_!!_L_'' 
 
 stances which create only doubt and suspicion ; liut it may ^^'*^^ rebutted, 
 be wholly removed by proper and sufficient evidence, showing 
 that the husband was, 1st, incompetent ; 2ndly, entirely 
 aV)sent at the period during which the child must in the 
 course of nature have been begotten ; or Srdly, only present 
 under such circumstances as affoi-d clear and satisfactory 
 proof that there was no sexual intercourse (?/t) : and it also 
 seems that where the interview between the husband and 
 wife has not been such as to raise an irresistible presumption 
 of the fact of sexual intercourse, the subsequent conduct of 
 the parties may be referred to for the puipose of establish- 
 ing the fact of non-intercourse ; e.g., the circumstance that 
 the wife who was living in adultery concealed the birth of 
 the child, that the husband acted up to his death as if 
 no such child Avero in existence, and that the adulterer 
 aided in concealing the birth and subsequently reared and 
 educated the child and left it all his property by liis 
 will {ii) : the old doctrine of quatuor maria has been long- 
 exploded (o). 
 
 The evidence and declarations of the husband and wife Declaration 
 
 of husband 
 
 are inadmissible for the purpose of establishing the fact of and wife inad- 
 non-intercourse (j>). It seems to have been considered that 
 the rule is limited to this — that a married couple shall not 
 l)e admitted to prove that they have had no connexion after 
 
 (m) Per Lord Langdale, in JIar- Edmonds, i W. R. 71 ; 25 L. J. N. S. 
 
 f/rave v. Hayijrave, 9 Beav. p. 55.^5. Ch. 125 ; Ploves v. Bos.'tctj, 2 D. f!. & 
 
 His Lordship puts anotlier case, v:z., Sm. 145. 
 
 that of " the entire absence of the (o) See Pendrell v. Peudrell, 2 Stra. 
 
 husband, so as to have no intercourse 925 ; and see, on the general subject, 
 
 or communication of any kind with Banluri/ Peerage case, 1 Sim. & St. 
 
 the mother:" but this seems to be 153; Mwris v. Dai-ies, 5 CI. & F. 
 
 an unnecessary extension of what is 2(J2 ; Hub. on Ev. p. 393, et seq. ; 
 
 above stated as the second propo- Saye and Sele Barony, 1 H. L. C. 
 
 sition. 507. 
 
 (n) Morris v. Davics, 5 CI. & F. 1G3; (^j) See Hub. on Ev. 3S2, 383 ; and 
 
 Saye and Sele Barony, 1 H. L. C. 507; see 5 CI. & F. 221 ; Patchett v. Huhjate, 
 
 and see Bury v. PhiU^mt, 2 Myl. & K. 15 Jur. 3u8, V.-C. K. B.; but see also, 
 
 349 ; Clarki v. Maynard, G ^lad. 304; Haryrave v. Ilaryrave, 2 Car. & Kir. 
 
 lie Sntclay, 17 Beav. 523 ; Legye v 701. 
 
 TOU I, f.
 
 338 THE ABSTRACT. 
 
 Chap. VIII. nianiago, an<l that the issue l)orn in due tiiue after marriage 
 ' is spurious (7) ; but the principle seems to apply equally to 
 
 a ease where it is sought to establish the illegitamacy of a 
 child conceived before, but born after, the marriage, by 
 proving from the admissions of husband or wife their non- 
 intercourse at the time of its conception ; and in one case the 
 Court refused to allow the wife to be asked in cross-examina- 
 tion, whether her husband had, or had not, access to her 
 before marriage {r). 
 
 Presumption So, where evidence of marriage cannot be procured, the 
 * ' deficiency may be supplied by presumptions, arising either 
 from cohabitation preceded by the usual preliminaries of 
 marriage, or by the conduct and behaviour of the parties 
 during cohabitation, and by the general reputation of the fact 
 of marriage (s) : for instance, in the cases of the Roscommon 
 Earldom and Stafford Barony (f), the execution of marriage 
 articles, and the grant of a Royal licence to the intended 
 husband to marry his brother's widow, were respectively 
 admitted as raising a presumption that the subsequent co- 
 habitations had been preceded by marriage : so, in the case 
 of the Saije and Sele Barony (u), the fact of the cohabiting 
 parties having visited with families of respectability was 
 successfully relied on as raising a jjresumption of marriage : 
 so, in Lord Ochiltree's case («), the baptism of a child as if 
 legitimate was held to raise a like presumption : but where, 
 as in Scotland, mere consent will constitute marriage, coha- 
 bitation, if in the beginning illicit, Avill continue to bear that 
 character, unless it be clearly changed by the parties (?/) : so, 
 in the Shrewsbury Peerage case [z), where it was necessary 
 to prove a marriage between W. T. and M. D., and, in the 
 absence of a certificate, the will of M. D.'s uncle was pro- 
 duced in these words, " All this I give to my nephew W. T.," 
 
 (5) Anon. V. Anon., 22 Beav. 481, Irool; 4 Q. B. 406. 
 482. («) Cited in Hub. on Ev. p. 247. 
 
 (r) Anon.\. Anon.,2Z Beav. 273 ; (.r) [A Scotch peerage case] Hub. 
 
 22 Beav. 481. on Ev. 249. 
 
 (s) In re Nixon, 2 Jur. N. S. 97". (n) LnpsJcy v. Grierson, 1 H. L. C, 
 
 (t) Cited in Hub. on Ev. p. 2.'i7 ; 498, 506. 
 {^nd see, in ejectment, Doe v. Graze- (:^ 7 H, L, C'a. 1,
 
 THE ABSTRACT. 
 
 839 
 
 the production of the Act book from Doctors' Commons Chap. VIII. 
 
 m 1 • 1 Sect. 6. 
 
 granting administration to " W. T., nephew, minor, and __ — 
 
 legatee," was held sufficient to raise a presumption of mar- 
 riacce between W. T. and M. D. 
 
 Decisions, on such points, in Peerage claims, are, it ma}^ 
 be remarked, of higher authority between vendor and pur- 
 chaser than similar decisions, even by the House of Lords, in 
 adverse claims to property ; inasmuch as, the claimant of a 
 Peerage, like a vendor, is required to show not merely a 
 better title relatively to some other, but to show that the 
 title is absolutely and exclusively in himself (a). 
 
 So, the mere fad am of marriage being proved, the Law Pi-esumption 
 raises every possible presumption in favour of the existence ^^ marriage,^ 
 of circumstances essential to its validity (h) ; but the Court ihe factum 
 
 •J ^ ^ ' _ being proved. 
 
 will not presume a marriage according to the lex loci between 
 persons living in the midst of an uncivilized community, 
 unless first satisfied with the evidence as to the laws and 
 customs of the natives in that respect (c). 
 
 By the Legitimacy Declaration Act 1858 (cl), any natural f^}^^^^^ 
 born subject of the Queen, or any person whose right to l)e Declaration 
 deemed a natural born subject, depends wholly or in part 
 on his legitimacy, or on the validity of a marriage, being 
 domiciled in England or Ireland, or claiming any real or 
 personal estate in England, may petition the Divorce Court 
 for a decree declaring that he is the legitimate child of his 
 parents ; or that the marriage of his father and mother or 
 of his grandfather and grandmother was a valid marriage ; 
 or that his own marriage was or is valid; and power is 
 given to the Court to determine the question of legitimacy, 
 
 (a) See Hub. on Ev. 63. (<■) ArmHa^e v. Armltarje, L. K. 3 
 
 {})) ricrs V. Pia-s, 2 H. L. C. 331 ; Eq. 343 ; and .see furtlier on this sub- 
 
 Bumoncel v. Bumoncd, 13 Ir. Eq. 07; ject, and as to marriages entitled to 
 
 Harrison v, Coiyx of Southmnpton, 4 the privilege of necessity, Ruding v. 
 
 De G. M. & G. 137 ; Taylor, 159 : and Smith, 2 Ilagg. 371 ; Brigbt's JI. & 
 
 see as to consent. He Birch, 1 Beav- W. 418, ct seq. 
 
 358 ; Re'j. v. Bt. Mar>j Mo'jdakn, 2 ((/) 21 & 22 Vict. c. 93. 
 
 El. & B. 809 
 
 7. 2
 
 340 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Sect. 6. 
 
 Presumption 
 of death : — as 
 between 
 vendor and 
 purchaser : 
 
 as between 
 adverse 
 claimants to 
 property. 
 
 01' of the validity of any such marriage : but its decree is 
 not to prejudice the rights of persons who are not cited, or 
 to have a valid effect if obtained by fraud or collusion. 
 
 As between vendor and purchaser, no presumption of 
 death arises from the mere fact of a person having been 
 unheard of for seven years {e) ; nor can any precise period 
 be fixed upon which will raise such a presumption; but 
 every case must depend upon its own particular circum- 
 stances : for instance, in a case like that of the President 
 steam vessel, never heard of after setting out to cross an 
 open ocean like the Atlantic, the Courts would prol)ably at 
 the end of seven ^^ears presume the death of all parties on 
 board, even as between vendor and purchaser (/) ; while 
 they might hesitate, even after a ver}^ much longer period, 
 to come to the same conclusion, between vendor and pur- 
 chaser, in the case of a vessel supposed to have been lost in 
 navigating an ocean, thickly studded with islands, like some 
 parts of the Pacific. 
 
 There have been many decisions upon the above point 
 as between adverse claimants to property : for instance, the 
 mere absence beyond seas of a mortgagor for thirty years 
 without being heard of, was, in an old case, held sufficient 
 to entitle the heir to redeem (g) ; so, as between parties 
 claiming under a will, the death of the legatee has been 
 presumed from absence in America without tidings or reply 
 made to advertisements for twenty-two years (Jt) ; so, in 
 Cathhert v. Piwrier {i), where a fund was set apart to 
 answer an annuity to a native woman in India, of whom 
 nothing had Ijcen heard since 1815, Lord Cottenham, in 
 1837, ordered payment of the principal to the party entitled 
 subject to the annuity, without requiring any security to 
 refund (/.) ; so, in Dowley v. Winfield {I), (an administration 
 
 (t) Hub. on Ev. 179 ; as to evidence 
 of sufficient inquiry, see Doc V, Andrcv.s, 
 1.5 Q. B. 7.')t3. 
 
 (/) See Mlirl- V. Booth, 1 Y. & ('. 
 C. (J. 117. 
 
 ('/) Masten v. C'oolson, 2 Eq. Ca, 
 
 Abr. 414. 
 
 {/<) Jiust V. Baler, 8 Sim. 443. 
 
 (0 2 Ph. 199. 
 
 (X) 2 Ph. see p. 200. 
 
 il) 14 Sim. 277 ; and see Watson v. 
 Eixjland, 8 Jur. 1062 ; 14 Sim. 28.
 
 THE ABSTRACT. :Ul 
 
 suit,) Shadwell, V.-C, presumed the death of a legatee who, Chap.Yiii. 
 
 when of the age of seventeen, had deserted his sliip at one ' 
 
 of the Sandwich Islands, and had not been heard of for 
 twelve years : and in a modern case his honour ordered 
 payment out of Court of a sum of money to the adminis- 
 trators of a person wlio had gone to America and had not 
 been heard of for seven years (rn) : but the Court will 
 require evidence of all practicable inquiry having been 
 made (v?) : and has refused to act on the common pre- 
 sumption when circumstances rendered it improbable that 
 the absentee, if alive, would have communicated with his 
 friends (o). 
 
 The value of the non-receipt of intelligence of a person Xon-recei[)t of 
 who has gone abroad, and has not been heard of for several rising prc- 
 years, and who cannot be presumed to have perished by fie™t?f^^° "^ 
 some casualty, as the foundering of a vessel in which he is 
 known to have been a passenger, must depend upon the 
 special circumstances of each case ; as, e.g., the duration of 
 his absence, and whether it can be satisfactorily explained 
 or not — the nature of tlie last connnunication received, and 
 whether the previous communications were frequent or in- 
 termittent — the station in life of the missing person, and 
 the degree of relationship or intimacy subsisting between 
 him and the persons with whom he was in the habit of 
 corresponding. In many cases the mere non-receipt of 
 tidings for a period of seven years is wholly insufficient to 
 raise the presumption ; and in all cases the evidence of 
 those who are interested in proA'ing the fact of death must 
 be recei\e<l with hesitation. 
 
 We may here remark, as connected with the present Troof of cle;.th 
 subject, that by the 13 Ch. II. c. G. s. 2, if a person for j.,v ■ ■"'■ '^"^ 
 whose life an estate is granted goes aljroad, and there is no 
 
 (m) Dunsmvre v. Boulderson, 5 Jur. //' re Li/ford, 17 Jur. o7U. 
 968 ; and see Whithio v. Bilwortli, {») Uuicden v. Jlcnclcrson, 2 Siu. & 
 
 2 Sin. & G. 35, in which, however, G. 360 ; f=ee la re Milcham, 15 Beav, 
 
 there were special circumstances. 507. 
 
 («) In re Creed, 1 Dre. 235; sec
 
 342 
 
 'iHE ABSTRACT. 
 
 Chap. VIII. 
 Sec*. 6. 
 
 ProJuction of 
 cestui que vie. 
 
 sufficient evidence that he is alive, the judge, in any action 
 commenced for the recovery of the lands by the lessors or 
 reversioners (^O, shall direct the jury to give their verdict 
 as if the person remaining abroad were dead : and by the 
 G Anne, c. 18, s. 1, a reversioner or remainderman may, by 
 proceedings in Chancery, procure the production, of tenant 
 for life or cestui que vie (q). 
 
 Presumption 
 as to time of 
 death. 
 
 As respects the time of death, the presumption, in cases 
 of adverse claims to property, used to be that the absentee 
 died at the end of the first seven years after he was last 
 heard of; unless there were special circumstances for raising 
 a presumption, tantamount to proof, of death at an earlier 
 period ; as, e.g., the fact of the party when last heard of 
 being in a bad state of health, and having arranged to return 
 to his friends in six months (r) ; or the state of weather 
 succeeding the departure from port of a ship which is never 
 afterwards heard of (.s). In Ommanci/ v. Stilwell (t), a mate 
 in the last Arctic Expedition under Sir John Franklin, which 
 was never heard of since June, 1845, was, after considerable 
 hesitation, presumed to have survived his father, who died 
 in January, 1850. There was evidence that about foi'ty of 
 the expedition, which originally consisted of 183, Avere seen 
 by Esquimaux in the month of April or May, 1850 ; and it 
 was considered probable that this mate, who was a strong 
 active young man, was among the number. In Doiuleij v. 
 W infield (u), the Court, in the absence of any special cir- 
 cumstances, presumed that the legatee, a sailor, who had 
 left his ship in the spring of 1832, died before the death of 
 the testator, which occurred in September, 1838; and the 
 legatee's share was paid over to other parties on their giving 
 security to refund : so, in Cuthhert v. Farrier (x), the Court 
 
 (p) This has been held to include 
 remaindermen. 
 
 {q) As to mode of procedure, see 
 Daniell, 1843, et scq, 
 
 (r) Wcbutcr v. Birchmorc, 13 Ves. 
 362; Re Lyford, 17 Jur. 570. 
 
 117. 
 
 (0 23 Beav. 328. 
 
 (v) H Sim. 277. 
 
 [x) 2 Ph. 199, supra; and .see 
 Grissall v. SteJfox, 9 Jur. 890, V.^C. 
 K. B. ; Wilrock v. Purchase, 9 Jur. 
 
 (») Sillirl- V. Booth, 1 Y. & C. C. C. 891, V.-C. E.
 
 Sect. 6, 
 
 THE AliSTRACT. 343 
 
 ordered the entire accumulations of the annuity, from the Chap. VIII. 
 time when the annuitant "was last heard of, to be paid over 
 to the party entitled subject to the annuity, on his giving 
 his bond to refund: but these decisions cannot be reconciled 
 with the later authorities {y) which in effect lay down, first, 
 that although a person who has not been heard of for seven 
 years is presumed to be dead, yet, in the absence of special 
 circumstances, there is no presumption from that fact as to 
 the particular period at which he died ; secondly, that a 
 person alive at a certain period of time, is to be presumed to 
 be alive at the expiration of any reasonable period after- 
 wards ; and thirdly, that the onus of proving death at any 
 particular period within the seven years lies with the party 
 alleging death at such particular period. In a recent case (5), 
 V.-G. Malins carried the doctrine still further, and laid it 
 down that as the presumption of death does not arise until 
 the expiration of the seven years, so within that period there 
 is a presumption of the continuance of life ; but, on appeal, 
 the order of the V.-(J. was discharged on the ijround that the 
 time of death is not a matter of presumption, but of affir- 
 mative proof (a) : and this is now the well settled rule (h). 
 
 Presumptions, however, such as are above referred to, Rules upon, 
 would not necessarily be made as between vendor and pur- adverse 
 chaser (c) ; and the above cases must be considered as rjuides, J^lainv^ntS' 
 
 ^ ' ' o ' iiow far appli- 
 
 rather than as authorities, for the conveyancer. In Doivleu cable as 
 
 • 1 1 • between 
 
 V. Wmfield, in particular, the presumption, not only of the vendor and 
 time but even of the fact of the death, (admitting for argu- ^'"^^ 
 inent's sake its propriety for the purpose of enabling the 
 Court to distribute testamentary assets,) would evidently be 
 of an extreme character if made upon a (question of title. 
 
 {y) Doc V. Ncpmn, 5 B. & Ad. 86 ; E(i. 416, 410. 
 
 Kcptan V. Doc, 2 M. & W. 894, 912 ; («) See L. R. 5 Ch. Ap. 141 note. 
 
 Lamhc v. Orfov, 6 Jur. N. S. 61 ) (')) Sec riimcs' Trusts, L. K, 5 Ch. 
 
 Dunn V. Snoicdcii, 2 Dr. & Sm. 201 ; Ap., and judgment of L. J. Giffard ; 
 
 Thomas v. Thomas, ib. 208; re /'hcncs' re Lares' Trusts, L. E. 11 Eq. 236; 
 
 Trusts, L. R. f) Ch. Ap. 139 ; re Levcs 1j. R. 6 Ch. Ap. 356. 
 
 Trusts, L. R. 6 Ch. Ap. 356. (r) See Sug. 418. 
 
 (s) Be Benhams Trusts, L. It. 4,
 
 344 
 
 THE ABSTKACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 The mere fact of a young sailor, who deserted his ship in the 
 Sandwich Islands, not being heard of for twelve years, can 
 scarcely, as a matter of common sense, be considered to raise 
 a stronger presumption of his death, than would the lapse of 
 an equal interval of time in the case of any other person of 
 the same age respecting whose existence no inquiry whatever 
 had been made. In such cases the Court may be supposed 
 to be (perhaps insensibly) influenced not only by a supposi- 
 tion that the party may be dead, but Ijy the feeling that, if 
 alive, he will probably never return to claim the property. 
 It has, moreover, been observed by the same learned judge 
 who decided DoivJeu v. Winjidd, that the old presumption 
 of death from absence, is, owing to the increased facilities of 
 travelling, becoming daily more untenable (d). In one case, 
 after absence and silence for nineteen years, the Court re- 
 fused to presume death when the circumstances rendered it 
 improbable that the party, if alive, would have communi- 
 cated with her friends (c). The recent notorious litigation 
 in respect to the Tichborne estates is suggestive of the diffi- 
 culties which may surround a title which depends upon 
 mere presumptive evidence of death. 
 
 Presumption 
 as to sur- 
 vivorship. 
 
 Presumption 
 of failure of 
 issue. 
 
 There is no presumption of law arising from age or sex as 
 to survivorship among persons who perish by the same 
 casualty ; nor, on the other hand, is there any presumption 
 that they all died at the same moment. The question is 
 one merely of fact, depending entirely upon the evidence ; 
 and if no evidence on the point can be adduced, the law 
 treats the matter as incapable of being determined (/). 
 
 Failure of issue is a negative fact of which no evidence, 
 strictly speaking, is capable of being given : all that can be 
 done is to prove facts which raise a presumj^tion of the want 
 of issue : this proof, according to Mr. Huhback {g), mav 
 
 (c/) See ]Vatson v. Enijland, 14 Sim. 
 ^8 ; Hemming v. Spiers, IL Sim, ooO. 
 
 (c) Bowden v. Henderson, 2 Sm. & 
 G. 360. 
 
 (/) Wiiuj V. An-jravc, 8 H. L. Ca. 
 
 18-3; and see Underwood y. Winy, i 
 De G. M. & G. 633. But see Om- 
 maneii v. St'dwell, 23 Beav. 328, supra, 
 p. 342, et qiifcrc, 
 if/) Page 203.
 
 THE ABSTRACT. 345 
 
 consist " cither of the testimony of living witnesses having the Chap. VIII. 
 means of knowledge (It), the declarations of deceased rela- ' 
 
 tives, or family reputation otherwise established," and which 
 appears to extend to indirect or circumstantial declarations {I), 
 ami (in conveyancing practice), to include declarations or 
 affidavits by persons acquainted with, although not actually 
 members of, the family (/i-) ; " or of facts or circumstances 
 irreconcileable with, or opposed to, the hypothesis that there 
 are any legitimate descendants of the suj)posed ancestor;" 
 such as facts which tend to show the celibacy of the party {l)\ 
 the non-mention of issue in wills {m) and other documents 
 in which issue, if existing, would naturally be noticed ; and 
 the devolution of dignities or property upon the assumption 
 of the want of issue ; or the grant of letters of adndnistration 
 to distant relatives. 
 
 Many cases have occurred in Avhich tlie Court of Chancer}- Presumption 
 has paid out of Court money, the title to which depended ^Z^'^^f ^gcd 
 
 ^ '' ■•■ females havmj; 
 
 upon the presumption that females of advanced age w^ere future issue, 
 incapable of having issue (n) : fifty-five, or, according to an 
 unrej)oi-ted case (o), fifty-three appears to have been the 
 earliest age at which such a presumption has been acted on, 
 the female being unmarried, and the parties receiAdng the 
 money being required to enter into their recognizances to 
 refund in the event of her manying and having issue : in a 
 case {p), where the woman was fifty-eight and unmarried, 
 
 (/() As ti) which .see the case of admitted, although from other cir- 
 
 Hemminrj v. Spiers, 15 Sim. 550 (a cumstances payment was refused. 
 
 case between vendor and pui'chaser) ; Forty-nine was held to be too early 
 
 and the cases upon Peerage claims, in Re Overkill, 17 Jur. 342; but see 
 
 cited Hub. on E\-. p. 204. cases cited i»fr>i, n. (p). The author 
 
 (/) See cases on Peerage claims, has been informed, upon respectable 
 
 cited Hub. on Ev. p. 205. medical authority, that the peculiar 
 
 (k) Ibid. 230. effect of the Australian climate upiai 
 
 (0 See Hcmminy v. S^ijers, 15 Sim. the Englisli constitution, is often to 
 
 550. induce pregnancy in female emigrants 
 
 (m) HmHjate v. Gascoi/iie, 2 Ph. 25. who have passed the usual period of 
 
 {it) See /a'ii;/ v. Ifodjrs, .Tac. 585 ; childbtaring before leaving Ivngland. 
 
 Brown V. Priii'jle, 4 Ha. 12 J, and (/)) /'^r^^ v. .ffwy, statediii M. Dig., 
 
 earlier cases there cited : sec the V.-C. K., 11th Feb., 1853. 
 
 Judgment in Brandon v. Woodthorpc, [p] Mifc-i v. Kniyht, 12 Jur. 666 ; 
 
 10 Beav. 463, where the practice was Edvardx v. Tud', 23 Beav. 268 ; the
 
 340 
 
 tHE ABSTRACt. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Shadwell, V.-C, ordered payment without requiring any 
 recognizance. Lord St. Leonards appears to think that the 
 presumption that a woman of advanced age is past child- 
 bearing would not be made against a purchaser {q) ; and, so 
 far as we are aware, there is not any reported case in which a 
 title dependent on such a presumption has been forced upon 
 a purchaser : but uj)on general principles, it would seem that 
 such a course would, if necessary, be adopted ; it being a 
 moral, and not a mathematical certainty, of a good title, 
 which a purchaser can require from a vendor (r). The 
 Courts d<j not appear to act upon a similar presumption in 
 the case of a male (s), and there are obvious reasons why 
 the doctrine should not be so extended. 
 
 Birth.';, m.ir- 
 riage.s, and 
 deaths ; 
 proved by ex- 
 tracts from 
 parochial and 
 general 
 retristers. 
 
 The ordinary evidence of the facts of birth, marriage, and 
 death (f), consists of certified extracts from the parochial 
 registers, or from the general register, established by the 
 G & 7 Will. IV. c. 8G, and amended by the 1 Vict. c. 22 : or, 
 as regards deaths, from the burial registers established by 
 the 16 & 17 Vict. c. 134, s. 8 : and by declarations as to the 
 identity of the parties. The parochial registers are not, as 
 a general rule, evidence of the time or order of birth {v) ; 
 althouo-h they may go far to enable the practitioner to form 
 an opinion upon these points ; nor do they seem to be evi- 
 dence of the time of death, except so far as by showing that 
 it must have occurred before the date of the burial, of which 
 they seem to be evidence {x) ; and they are evidence of the 
 time as well as of the fact of marriage (y). Under the 6 & 7 
 
 •woman being unmarried and fifty- 
 eight : so in Dodd v. Walcc, 5 De G. 
 & S. 226 ; the ivoman being si.xty- 
 four ; so, in re WlddoK-'s Trusts, 
 L. K 11 Eq. 408, one of the parties 
 being a widow aged fifty-five years 
 and four months, who had never had 
 any children, and the other a spinster 
 aged fifty-three years and nine months ; 
 so, in cc MiUncr's Estate, L. E. 14 Eq. 
 245, case of a married woman aged 
 forty-nine years and nine months, who 
 had never had any child. 
 
 ('[) Sug.V. &P. 418. 
 
 (r) 2 Atk. 19 ; see 12 Ves. 252. 
 
 (s) See and consider Trevor \, Trevor , 
 2 Myl. & K. 677 ; Lushington v. BoU 
 dcro, 15 Beav. 2. 
 
 (t) As to recital of death of cestui 
 que vie in renewed Ecclesiastical 
 Lease being evidence, vide su2'>rd, p. 
 314. 
 
 ();) See 1 Moo. & E. 389. 
 
 {x) Hub. on Ev. 184. 
 
 (>/) Doc v. Barnes, 1 Moo. it E. 386. 
 See 14 & 15 Vict. c. 97, b. 25, remedy^
 
 tUE ABSTRACT. 347 
 
 Will. IV. c. 8G, the birth or death, and not the Ijaptitsiu or chap. Vlli. 
 
 burial, is the subject of registration ; the date forms part of !^!^ 
 
 the entry required by the Act, and certified copies of the 
 entries are to be received as evidence of the birth, death, or 
 marriage, to which the same relate (z) : it may, however, bo 
 doubted whether a purchaser could be compelled to accept a 
 certificate of death as evidence of the fact, unless some suffi- 
 cient reason were given for the non-production of the certi- 
 ficate of burial (a). Extracts from non-parochial registers 
 have long been received by conveyancers as evidence ; and 
 by the 3 & 4 Vict. c. 92, the non-parochial registers deposited 
 under the provisions of that Act (6), and certified extracts 
 therefrom (c), are made evidence in the Courts of Law and 
 Equity (d). 
 
 In the absence of evidence of the above description, resort How other- 
 is necessarily had to evidence of a less formal character : _by declara- 
 such as declarations by members of the family (c), whether *'"'°^' ^'^- > 
 such declarations be made expressly for the purpose of 
 evidence, or consist of recitals in deeds or wills, statements 
 in pleadings in Chancery, kc. The declaration of a wife as 
 to the state of her husband's family is ecpially admissible 
 
 ing errors in the solemnization in distinction between a District Kegis- 
 
 certain cases. As to the identification trar's, and the Registrar General's 
 
 of extracts from the parochial registers, certificate. 
 
 see 14 & 15 Vict. c. 99, ss. 11 & 17 ; (&) I'or a list of which, see Hub. on 
 
 Re Porters' Trust, 2 Jur. N. S. 349 ; Ev. p. 772. 
 
 Re Neddy Hall's Estate, 17 Jur. 29 ; (c) See Sects. 11 & 13. 
 
 incorrectly reported, 2 De G. M. & G. {d) Attested copies of French re- 
 
 748. gisters were received in a modern 
 
 (;) Sect. 38. Peerage case, upon the evidence of a 
 
 (rt) See Att.-Gen. v. Culvenrcll, R. French advocate that the registers 
 
 cited in Hub. on Ev. 769 ; and Lcnck were kept according to the French 
 
 T. Leach, V.-C. K. B., 8 Jur. 211 ; Law, and would be received in tlie 
 
 but see Parkinson v. Francis, 15 Sim. French Courts : Perth Earldom, 2 H. 
 
 160. In Tomlins v. Tomlins, 3 Jur. L. Ca. 865. See 14 & 15 Vict. c. 99, 
 
 167, Shad%vell V.-C, decided, that s. 7. 
 
 the certificate of a district registrar (c) See the remarks of Lord Lan<'- 
 
 is not evidence under the Act : in the dale upon the little value to be attri- 
 
 later case of Trail v. Kihhlevhitc, 10 buted to traditionary evidence in 
 
 Jur. 107, the same learned Judge is Pedigree cases, in Johnston v. Todd, 5 
 
 stated to have acted upon such a certi- Pcav, 597 ; and see Crouch v. Hooper, 
 
 ficate ; but his attention does not 16 Beav. 182 ; Wehh v. llaycocl- 10 
 
 Bcem to have been directed to the Beav. 342.
 
 348 
 
 THE ABSTRACT. 
 
 Chap. VIII, with that of a husband as to the state of his wife's family (/); 
 
 _ but before such a declaration can be admitted in evidence, 
 
 the relationship of the declarant dejure by blood or marriage 
 must be established by testimony independent of the declara- 
 tion itself (y). Such evidence is inadmissible in Court 
 during the lifetime of the parties ; but, in conveyancing, 
 statutory declarations form the only a%^ailable means of pre- 
 serving the testimony of living witnesses, and, after their 
 deaths, become admissible in Court ; and where such decla- 
 rations by relations cannot be procured, convej^ancers act 
 upon similar declarations made by strangers who have been 
 acquainted Avith the family, although such declarations are 
 inadmissible in Court (//), unless made contrary to the pro- 
 prietory or pecuniary (i) interest of the declarant. So, 
 records or books from the Herald's College, if kept under 
 the authority of any official order, or in the discharge of 
 any official duty, are admitted as evidence (h) : so, state- 
 ments of pedigree contained in letters, or entries in books, 
 whether religious or otherwise (/), are admissible in Court, 
 if the handwriting be proved to be that of a deceased 
 
 old pedigrees ; member of the family (ra) : so also, old statements of pedi- 
 gree are held admissible, on account of their public ex- 
 posure to and recognition by the family, even although 
 they cannot be distinctly attributed to any particular 
 member of it ; c.r/., monumental inscriptions {n), an authen- 
 ticated copy of a mural inscription in the parish church (o), 
 
 records of 
 Heralds' 
 College ; 
 
 cutri«« in 
 books, &.C. ; 
 
 inscriptions, 
 
 (/) SJircu-tshury Pcerarje case, 7 H. 
 L. Ca. 1. 
 
 (y) Plant v. Tai/Ior, 8 Jur. N. S. 
 140 ; 7 H. & N. 211 ; and see 
 1 Tayl. Ev. 526, n. ; Smith v. Tchhitt, 
 L. K 1 P. & D. 35 i. 
 
 {h) Johnson v. Lmcson, 2 Bing. 86 ; 
 Crease v. Barrett, I Cr. M. & E. 928 ; 
 Casey v. O'Shaunessij, 7 Jur. 1140, 
 P. C. 
 
 (?■) See Sussex Feerarjc case, 11 
 CI. & F. 85,112; Lloyd Y. Wait, 1 
 Ph. 61. 
 
 {k) Shra'shunj Pccrafje case, 7 H. 
 L Ca. 1. 
 
 (/) See mrhcrt v. Tvchtl, Sir T. 
 
 Raym. 8i ; Berkeley Peera(/e case, i 
 Camp. 418 ; Slane Peerage case, 5 CI. 
 & F. 24 ; Tracy Pccraye, 10 CI. & F- 
 154 ; but see Walker v. Lady BeaU' 
 champ, 6 Car. & Pa. 552. 
 
 (/«) As to proof of which, see The 
 Fitzvxdtcr Pecraye, 10 CI. & F. 193 ; 
 Tracy Peeraye, 10 CI. & F. 154. 
 
 (n) See Peerage Cases, cited Hub. 
 on Ev. 688 ; and see 10 CI. & F. 
 154 ; Shreicsbury Peeraye case, 7 H. L. 
 Ca. 1. 
 
 [o) Slaney v. Wade, 1 Myl. & C. 
 338 ; and see In re Perth Earldom, 'i 
 H. L. Ca. 876.
 
 THK ARSTRACT. 349 
 
 coffin plates {[j), inscriptions upon the walls of the mansion Chap. viii. 
 house (q), pedigrees hung up in the mansion (/•), or preserved ' 
 
 in the family library (s), entries in a family Bible, or, it 
 would appear, in any other book which had been treated by 
 the family as being in the nature of a family register {f) ; 
 and, if coming from proper custod}-, no evidence of their 
 authorship or handwriting is required (u) : so, also, a pedi- 
 gree presented by a third person to a member of the family, 
 and recognized by him, is admissible in proof of the relation- 
 ship of persons therein described as living, and who might 
 be presumed to be personally known to him, even although 
 the general pedigree be inadmissible by reason of its purport- 
 ing to l)e collected from registers, Avills, kc, and histort/ (.r) : 
 Init a printed collection of monumental ijiscriptions was 
 I't.'jected as evidence of what had been the inscription on a 
 partly-defaced tomb (jj) : so, a case for the opinion of counsel 
 seems to be inadmissible, as being generally drawn liy the 
 solicitor and not by the part}^ himself, and being often 
 framed with a view to drive the opposite party to a re- 
 ference, or for other purposes (z). 
 
 And it seems probable tliat such evidence is admissible to whether aJ- 
 prove not only the facts of birth, marriao-e, and death, but °^^^%''^^ "\ 
 also such collateral matters (<\fj., the local derivation of the lateral mat- 
 family), as tend to show the identity of the parties (a). 
 
 All such evidence is generally inadmissible if made during Such declara- 
 existing (6), or with a view to anticipated (c) litigation or made^Se'^ 
 
 (2^) Hub. on Ev. G93. Coffin plates (it) llahlard v. Lees, L. E. 1 Ex. 2.5.5. 
 
 and monumental inscriptions f re- (.c) Davics v, Lowndes, 7 So. N. 11. 
 
 quently misstate the age by reducing HI, 214. 
 
 it a year; anno (etatis ht:ing Under- (y) ShreKshiiDj Peeraye case, 7 H. 
 
 takers' Latin for aged. L. Ca. 1. A photograi)h of a subse- 
 
 (^l) Camoi/s Barony, 6 CI. & E. 801. quently defaced inscription would pro- 
 
 (r) See 1 Myl. & C. 356. bably be now received in evidence. 
 
 (s) C'amoys Barony, 6 01. & F. (~) Shine Peerarje, 5 CI. & F. 40, 
 
 802 ; and see Davies v. Lowndes, 7 Sc, («) See Shields v. Boucher, 1 D. 
 
 N. 11. 141 ; and In re Perth Earldom, G. & S. 40, and cases there cited ; and 
 
 2 H. L. Ca. 876. Dos v. JDaries, 11 Jur. 607 ; 10 Q. B. 
 
 («) See 2 Euss. & M. 162 ; Hood v, 314 ; Lloyd v. Wait, 1 Ph. 61. 
 
 Beaucliamp, 8 Sim. 26 ; Slane Pecrafje {h) 6 Ir. JIcj. E. 348 ; see T.aylor on 
 
 case, 5 CI. & F. 24; Berkeley Peerarje Er. 412. 
 
 case, 4 Camp. 418. {<•) S/ane Peerage, 5 CI. & F. 23.
 
 SoO 
 
 THE ABSTRACT. 
 
 litem motam ' 
 — extent of 
 the rule. 
 
 Chap. VIII. controversy involving tlic point in question : it seems, how- 
 
 L^ ever, that the mere fact of the declarant having a distinct 
 
 ol)ject in view in making his declaration, f.f/., the prevention 
 of disputes in a family, will not render the declaration inad- 
 missible, although such object can only be gained by using 
 the declaration in evidence (cZ) : and, in a peerage case cited 
 by Mr. Hubbuck (e), a pedigree transmitted by a father to 
 his son, with a view to induce him to make a claim to the 
 peerage, vrhich, however, never was made, was held ad- 
 missible as evidence in favour of a party claiming through 
 an elder branch of the family. 
 
 What is a 
 lis mota ? 
 
 Whether the mere existence of that state of facts which 
 may lead to a controversy is a lis mota within the above 
 rule is doubtful {f) : the modern authorities seem to be 
 opposed to such a doctrine. It was held in Slaney v. 
 Wade (g), that a copy of an ancient mural inscription was 
 not rendered inadmissible in evidence by reason of its 
 liaving been made at the time when it was known that, on 
 the death of a tenant for life of the family estates, ques- 
 tions would possibly arise as to who was entitled under a 
 limitation in a will to the testator's ricjht heirs. 
 
 Declaration A declaration is not rendered inadmissible in evidence Tiy 
 
 the like in- reason of the declarant, and the party relying on his decla- 
 
 terestad- ration, having been in the same situation with respect to 
 
 nussible. ' C) l 
 
 the matter in question (h). 
 
 Recitals, And, as against third parties (?'), recitals in a deed are not 
 
 of^p^edig^ee^^^^ evidence, unless the deed was executed by some disinterested 
 
 {d) See 2 Russ. &M. 164 ; BerMeij 
 Peerage case, 4 Camp. 418 ; Slaney v. 
 Wade, 1 Myl. & C. 338. 
 
 (f) Airtk Larldom, Hub. on Ev. 
 668. 
 
 (/) See Daries V. Lowndes, 7 Sc. 
 N. E. 198, 214 ; and Wall-er v. Earl 
 Beanchamp, and other cases there re- 
 ferred to ; Slaney v. Wade, 1 Mvl. 
 ^ 0. 338; Monlton v. Att.-Gen., 2 
 
 Russ. & M. 147 ; ReiUy v. Fitzgerald, 
 6 Ir. Eq. R. 335. 
 
 (U) 1 Myl. & C. 338. 
 
 (/() Monhton v. Att.-Gen., 2 Russ. & 
 M. 157 ; Doe d. Tilman v. Tarrcr, 1 
 Ry. & Mo. 141 ; Doe v. Davies, 11 
 .Tur. 007 ; 10 Q. B. 314. 
 
 (/) Including persons named as 
 parties, but who do not execute, see 
 Tidlw One a, 4 Y. & (". Ui2.
 
 THE ABSTRACT. Sol 
 
 member of the family (/•). In a ease wliere a conveyance Chap. viii. 
 hy parties claiming as heiresses of the bodies of two female U 
 
 joint-tenants in tail recited their pedigree, this recital of 
 tlieir title by the then vendors was held to be no evidence 
 against a subsequent purchaser, although the deed was 
 thirty years old ; there being nothing to show that the pre- 
 vious possession had been consistent with the pedigree (/) : 
 but in an ejectment case, where a person entitled in 
 remainder joined with the tenant for life (who was her 
 relation), in selling the property, and the conveyance 
 recited that she was the daughter of J. D., and the convey- 
 ance was executed by the tenant for life, the recital was 
 held by the Court of Queen's Bench to be evidence of the 
 fact, "no dispute having existed, and the parties having 
 done that which they had a right to do if members of the 
 family" (m). 
 
 By the 37 & 38 Vict. c. 7<S (h), recitals, kc, in Acts of r.ecitals in 
 
 •^ ^ private Acts 
 
 Parliament twenty years old are, as between vendor and of Parliament, 
 purchaser, made sufficient evidence of the truth of the facts 
 and matters stated, except so far as they may l)e disproved ; 
 and, apparently, there is no distinction between a public 
 and a private Act as regards the application of tliis rule. 
 Except so far as it may have been altered by this enact- 
 ment, the general rule is that recitals in recent private 
 Acts of Parliament are not evidence of the facts stated 
 in them, inasmuch as it is no longer the practice to sub- 
 mit the e\adence in support of private bills to the 
 judges for their report upon it {<>). The Court of Chan- 
 cery has refused to act upon the recital of a death in a 
 private Act on the application of a person claiming under 
 the Act (/)). 
 
 (k) Shtney V. Wade, 1 Myl & V. («) See sect. 2. 
 
 338 ; (but see the judgment of the (o) Slircirshiiry Peerar/e case, 7 H. 
 
 V.-C. cor.trd, 7 Sim. G14 ;) see Doe v. L. Ca. 1. 
 
 Davies, 10 il B. 314, 325 ; and see (p) CoireU v. Vhamhcrs, 21 Beav. 
 
 now 37 & 33 Vict. c. 78, sect. 2. C19 ; MonUon v. Edmonds, 1 De G. F, 
 
 (Z) Fort V. Clarice, 1 Russ. 601. k -To. 246. 
 
 (m) Doe V. Daxtes ; 10 Q. B. 314,
 
 352 THE ABSTRACT. 
 
 Chap. VIII. Land tax, if not noticed in tlie agreement, is presumed to 
 
 ^^^^. ^' be a charge on the property ; if stated to l)e redeemed its 
 
 Land tax— redemption should be shown by the certificate of the Com- 
 ofi how ^"^ missioners, the receipt of the cashier of the Bank of Eng- 
 proved. land, and memorandiun of registration (q) : the loss of the 
 
 receipt is not, however, of any real importance ; for, as a 
 matter of practice, the certificate is never issued before the 
 money is paid. In one case (r), where an estate was des- 
 cribed as land-tax redeemed, a statutory declaration by a 
 former owner that no land tax had l)een paid in respect of 
 the land, " subsequently to the purchase or redemption 
 thereof, in or about the year 1709," v/as held insufiicient to 
 satisfy a purchaser ; for it left it doubtful whether the land 
 tax ever was redeemed, so as to free the land from liability 
 either to the Crown or to a purchaser under the 42 
 Geo. Ill, c. 116, or his representatives : and in the same case it 
 was also held, that a statement in the operative part of a 
 conveyance that the consideration was for the absolute pur- 
 chase of the land " free from land tax," did not fall within 
 the usual condition making deeds of a specified age conclu- 
 sive evidence of everything recited or stated therein. 
 
 Tithes. Tithe, also, is a burden the existence of which is presumed 
 
 in the absence of agreement. The Law upon the subject is 
 rapidly becoming less important under the provisions of the 
 
 (q) See 42 Geo. III. c. 116, s. 38. person having a limited interest under 
 
 See as to sales for redemption of the the 38 George III. c. 60, or under 
 
 tax, Hkks V. iMorant, 5 BU. N. S. 643;" 42 Geo. III. c. 116, sec. 123, is per- 
 
 <S'. C. 2 Dow. & CI. 414 ; Lmvrie v. sonal estate ; but a fee farm rent in 
 
 Lawrie, 2 Dow. 556. As to the right lieu of land tax, purchased under 
 
 of a remainderman to pay off the the 42 Geo. III. c. 116, is real estate, 
 
 representatives of a tenant for life who Under the 16 & 17 Vict. c. 117, 
 
 redeemed the land tax out of his own s. 2, merger took place in every 
 
 money, see Coi.isi7is v. Harris, 12 Q. case of redemption under a contract 
 
 B. 726. As to merger of redeemed entered into after the 20th Augu.it, 
 
 land tax, see £Zw}icMi V. iS'toi/ey, 3 De 1853; but as regards contracts 
 
 G. & S. 433 ; BulMey v. Hojpe, 1 K. entered into after the 29th July, 
 
 & J. 482 ; A'enmc V. i)/oorsom, L. K. 3 1856, this section was repealed by 
 
 Eq. 91 ; when redeemed by ecclesias- 19 & 20 Vict. c. 80, s. 3. 
 
 tical incumbent, Kilderlee v. Amlrose, (?•) Buchanan v. Popplct<yn, 4 Com. 
 
 10 Excb. 454. It should be remem- Ben. N. S. 40 ; 4 Jur. N. S. 414. 
 bered that land tax redeemed by a
 
 THE ABSTRACT. 
 
 53 
 
 Tithe Commutation Acts (s) : the Commissioners acting under Chap V in. 
 
 , _ &6Cti 0. 
 
 which have power, in making their award (t), to decide, as 
 
 , , Commutation 
 
 between tithe owner and land owner (a), but not as between ^^^ ^^^^^^j. i^te 
 rival claimants of tithe (x), all questions as to the existence '^^*'- 
 of any modus, or composition real or prescriptive, or cus- 
 tomary payment, or any claim of exemption from or non- 
 liability to payment of tithes ()/) ; and their decision, unless Decision o( 
 reversed on an appeal brought within three calendar months ^^.^ conclu«ive, 
 after its being notified in writing to the parties interested, if no appeal, 
 or their agents (z), is binding and conclusive : and no further 
 time will be allowed by reason of the benefice becoming 
 vacant, after the commencement, but before the expiration 
 of the three months (a). There are exceptions of tithes of 
 fish and fishing, and of mineral tithes, of payments instead 
 of tithes in the City of London, and of permanent rent- 
 charges payable in any city or town l)y custom or any local 
 Act of Parliament (6); but, with these exceptions, all 
 questions as to the existence or amount of liabilities of this 
 
 {,s) G & 7 Will. IV. c. 71 ; and see 
 supplementary Acts, 7 \\'ill. IV. & 
 
 1 Vict. c. 69 ; 1 & 2 Vict. c. C4 ; 
 
 2 & 3 Vict. 0. 62 ; 3 & 4 Vict. c. 15 ; 
 ;"i Vict. c. 7 ; 5 & 6 Vict. c. 54 ; 
 9 & 10 Vict. c. 73; 10 & 11 Vict. 
 c. 104 ; 14 & 15 Vict. c. 53 ; 23 & 24 
 Vict. c. 81 ; 25 & 26 Vict. c. 73 ; 
 and see the important additional pro- 
 visions contained in 23 & 24 Vict. 
 c. 93. The tithe, or commutation 
 rent-charge, may, under the 6 & 7 
 Will. IV. 0. 71, 8. 71, be merged by 
 the tenant in fee or in tail thereof ; 
 or, under 1 & 2 Vict. c. 64, by any 
 person or persons seised of, or having 
 power to acf[uire, the fee therein, s. 1 ; 
 or by tenant for life in posse.ssion of 
 both land and tithe, &c., s. 3 ; and 
 the merger may be effected in copy- 
 holds, s. 4 ; or, under 2 & 3 Vict. 
 c. 62, s. 6, by persons liolding glebe 
 or other lands, and the tithes, &c., by 
 virtue of any benefice, or ex officio. 
 By sect. 1 of the same Act, incum- 
 brances upon merged tithes, &c., are 
 made primary charges on the lands 
 
 VOL. I. 
 
 themselves : and by the 9 & 10 Vict, 
 c. 73, s. 19, the powers of merger 
 given by former Acts are extended, 
 retrospectively and prospectively, so 
 as to give equitable owners a power 
 of legal merger, but so as to make 
 charges on the tithe, &c., primary 
 charges on the land. 
 
 it) And which, if purporting to be 
 sealed with the seal of the Commis- 
 sioners, is made evidence 1)y s. 2 of 6 
 & 7 Will. IV. c, 71. 
 
 («,) See Waller v. Bcntlcy, 9 Ha. 
 629, 635. 
 
 (x) Rc(j. V. TUhc Commissioners, 15 
 Q. B. 620. 
 
 (2/) 6 & 7 Will. IV. c. 71, s. 45 ; 
 see Wdhcrdl v. Wti'jhill, 3 Y. & C. 
 249 ; and see 5 & 6 Vict. c. 54, s. 10; 
 llcf/ v. Tithe Commissioners, 14 Q. B. 
 459 ; 18 Q. B. 156 ; Shepherd v. Lord 
 Londonderry, 18 (J. B. 145. 
 (-.) Sect. 46. 
 
 («) Horn fray v. Scroope, 13 Q. B. 
 509. 
 
 (h) Sect. 90, 
 
 A A
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 As to liability 
 under special 
 apportion- 
 ments. 
 
 As to ex- 
 traordinary 
 charges on 
 hop grounds, 
 orchards, and 
 gardens. 
 
 Composition, 
 modus, or 
 exemption, 
 how proved. 
 
 description will eventually depend, and do already as respects 
 a great part of the country depend, upon the Commissioners' 
 award (c) for the particular district. 
 
 It must be borne in mind that under the 58th sect, of the 
 G & 7 Will. IV. c. 71, the conunutation rent-charge may be 
 specially apportioned ; so as to throw the amount attributable 
 to the tithes of an entire estate upon some particular portion 
 of it in exoneration of the residue. Of course when this has 
 happened, the contract or conditions should state either the 
 fact or the amount actually payable. It must also be re- 
 membered in cases where any lands in a parish have been cul- 
 tivated as hop grounds, orchards or market gardens, that the 
 Commissioners may (under sect. 40) have assigned a district 
 within which all lands so cultivated are to be subject to an 
 extraordinary acreage charge in addition to the ordinar}- 
 charge which affects them as comprised in the titheable parts 
 of the parish : and that lands within such a district, although 
 waste and unproductive at the date of award, or even if 
 relieved from the ordinary charge by an apportionment 
 under the 58th section, become under the 42nd section 
 subject to this extraordinary charge upon their being 
 subsequently brought under any of the above special modes 
 of cultivation (d) : and it seems (c) that as facts arise v/hich 
 warrant such a proceeding, a supplemental award assigning 
 such a district may at any time be made by the Commis- 
 sioners. 
 
 As respects those localities in which the tithe has not yet 
 been commuted, it may be sufficient to state shortly, that a 
 composition real can be established only by direct or pre- 
 sumptive proof of its creation by deed before the 13 Eliz. (/); 
 and that before the passing of the 2 & 8 WiU. IV. c. 100, a 
 modus could be established only by similar proof of its con- 
 stant payment from the time of legal memory ([/) ; and that 
 
 (r) 6 & 7 Will. IV. c. 71, ss. 52 and 
 67 ; and see 2 & 3 Vict. 62, s. 8. 
 
 (</) Walsh V. Trimmer, L. R. 2 E. 
 & Tr. Ap. 203. 
 
 (() iiusssill V, TUhe Commissioners, 
 
 L. R. 6 C. P. 59G, 
 
 (/) See Edcourt v. Kinf)SCote, 4 
 Madd. 140 ; Dent v. Rob, 1 Y. & C. 1. 
 
 (7) See 1 Mac, & G. 261.
 
 THE ABSTRACT. 
 
 to prove an exemption from tithe, it was necessary to show Chap. viii. 
 that the land had belonged to one of the greater monasteries, ^^ ' ' 
 
 and was held by such monastery discharged from tithe at the ^''^'^^ °^' 
 time of its dissolution (h). By the 2 & 3 Will. IV., c. 100 (0, facilitated by 
 
 . 2& 8 Will. IV 
 
 a modus (j) or exemption may be absolutely established as c. loo. 
 against the Crown or Duchy of C^ornwall, or any lay person, 
 (not being a corporation sole,) or any corporation aggregate, 
 whether spiritual or temporal, by proof of payment of the 
 modus, or enjoyment of the land free from tithe, during sixty 
 years next before the time of the demand ; and as against 
 any corporation sole, by proof of such payment or enjoyment 
 during two successive incumbencies, (or sixty years, which- 
 ever shall be the longer period,) and three years after the 
 appointment and institution or induction of a third incum- 
 bent (/•) : but the Act does not extend to cases where the 
 modus or enjoyment can be referred to an agreement in 
 writing, or where the enjojaiient has not been as of right (I): 
 and in cases where, at the date of the Act, the tithes were 
 in lease by deed, or subject to a temporary composition in 
 writing, a period of three years is allowed to the tithe owner 
 after the determination of the terra of demise or composi- 
 tion (;m) ; and the time during which the lands are held by 
 the tithe owner is excluded from the period of computa- 
 tion (n). It was, after opposite judicial decisions (o), decided 
 by Lord Cottenham, C, in conformity with the opinions of 
 eight of the twelve judges, that, in order to bring land within 
 the operation of the above Act for the purpose of claiming an 
 
 (/t) 1 Ha. 203 ; and see 1 Mac. & v. Dunhar, 13 M. & W. 822 ; Pearson 
 
 G. 261 ; and Barnes v. Stuart, 1 Y & v. Beck, 21 L. T. 21 ; the shorter 
 
 C. 119. period of thirty years during which 
 
 (J) Amendedby 4&5WilI. IV.c. 83. there is only a ^r/m(i /ac/e and not 
 
 (j) A custom for the Lord of a an absolute claim, does not appear to 
 
 Manor to receive a tenth of all tithe- be material as between vendor and 
 
 able matters in the manor, and to pay purchaser ; see s. 6 of Act. 
 
 a yearly sum to the rector iu lieu of (I) Salkcld \. Johnston, 2'Exch. 2'i>\, 
 
 tithe, is not within the Statxite ; see 2St). 
 
 Kniyht v. Marquis of Waterford, 15 (m) Sect. 4. 
 
 M. & W. 419 ; see 11 CI. & F. 653 ; («) Sect. 5. 
 
 Tliorpe V. Phwdcn, 14 M. & W. 520 ; (o) See Salheld v. Johnston, 1 Ha. 
 
 Youwj V. Clare Hall, 17 Q. B. 529. 196 ; S. C, 2 C. B. 749 ; 2 Exch, 
 
 (k) Sect. 1 ; see, as to evidenco 256 ; Fellnces v, C7c(y, 4 Q. B. ?,l^, 
 under this section, Stamford (Earl of) 
 
 A A 2
 
 35G 
 
 THE ABSTRACT. 
 
 Chap. VIII. exemption from tithe, it is not necessary to prove its original 
 
 f^^_; capacity for exemption by showing that it belonged to one of 
 
 the greater monasteries (p). The Act, it may be observed, 
 does not prevent a party from pleading a modus from time 
 immemorial, and proving it by the same evidence as he might 
 have done before the statute. 
 
 Tithes, how 
 affected by 
 Statute of 
 Limitations. 
 
 Defects in 
 title, when 
 supplied by 
 Prescription 
 Act, and 
 Statute of 
 Limitations. 
 
 Nature of title 
 under Pre- 
 scription Act. 
 
 The 3 & 4 Will. IV. c. 27, s. 2, which enacts that no person 
 shall bring an action to recover any land (which by section 1 
 includes tithes, unless belonging to a spiritual or eleemosynary 
 corjDoration sole), but witliin twenty years next after the 
 right accrued, has been held, by the Court of Exchequer, not 
 to prevent the tithe OA^oier from recovering tithes as chattels 
 from the occupier, although none have been set out for twenty 
 years ; but to be confined to cases where there are two parties 
 claiming adverse estates in the tithes (q). 
 
 Defects in the early title, or in the evidence thereof, are 
 occasionally rendered immaterial by the 2 & 3 Will. IV. c. 71, 
 and 3 & 4 Will. IV. c. 27. 
 
 With general reference to the former (commonly known 
 as the Prescription Act), we may observe that there is 
 nothing in the Act which interferes with a claim to an 
 easement by express grant ; or which prevents a claimant 
 from proceeding according to the Common Law, if he elects 
 to do so : but where reliance is placed on the Statute, the 
 title to an easement acquired thereunder now depends en- 
 tirely on positive enactment ; and is no longer to be rested 
 on the fiction of a presumed grant or licence from the 
 adjoining proprietor (r). The enjoyment of the right must 
 be for the whole statutory period in the character of an 
 easement, as distinct from the land on which it is sought to 
 be imposed (.s) ; and, except in the case of an easement of 
 
 (p) Sallccld V. Johnston, 1 Mac. & 
 Gr. 2i2 ; see Dean of Eli/ v. Bliss, 2 
 De G. M. & G. 469. 
 
 (q) Compare the Eeal Property 
 Limitation Act, 1874, 37 & 38 Vict, 
 c. 57, sect. 9. 
 
 (>•) See Lord Westbiury's judgment 
 in TapVnvj v. Jones, 11 H. L. Ca. 290. 
 
 {»■) Ilarlrkhje v, Warwicl; 3 Ex. 
 552 ; and see and consider Z«f?y?Ka«v 
 Orave, L. K. 6 Ch. Ap. 7G3.
 
 THE ABSTRACT. 3o7 
 
 necessity, the right, if acquired, is extinguished Ijy an union ^^^yP;^'^'^.-^^^' 
 
 of the ownership of the dominant and servient tenements, 
 
 for estates of an equally high and perdurable natui^e (t) ; 
 though it is only suspended, where the estates are not of 
 the same duration ; and will revive on their severance (u). 
 The Act is retrospective in its operation, so as to include in 
 the computation of the times necessary to confer the 
 statutory title, a period of enjoyment prior to the passing 
 of the Act (x) : but eacli of the respective periods must be 
 deemed and taken to be the period next before some suit or 
 action, wherein the claim or matter to which such period 
 may relate shall have been or shall be brought in ques- 
 tion (i/). 
 
 A claim to light becomes absolute and indefeasible after ^V to claims 
 
 O _ 01 Ilgllt. 
 
 twenty years' uninterrupted enjoyment ; unless such enjoy- 
 ment be shown to have been by virtue of some consent or 
 agreement, expressly made or given for that purpose by 
 deed or writing {z) ; and local customs to the contrary are 
 expressly rendered inoperative (a). The enjoyment need 
 not be as of right ; nor, as respects this easement, is there 
 any reservation of the rights of reversioners (6) ; and, so as 
 there be no adverse interruption, an unbroken continuity of 
 enjoyment of the easement is not necessary to establish the 
 right ; thus, if after the statutory period has commenced 
 to run, but before the twenty years have elapsed, there is 
 an interval during which the owner of the dominant tene- 
 ment, or his occupying tenant, is also in the occupation of 
 the servient tenement, the operation of the statute is for 
 the time suspended, Init revives on the severance of the 
 unity of occupation ; and the statutory period may be made 
 up partly of the period immediately prior to the unity of 
 
 (t) See Co. Litt. 313 a ; Thomns v. (a) Saltcrs' Cc. v. Jay, 3 Q. B. 100; 
 
 Thomas, 2 C. M. & R. 41 ; Simper v. Triiscott v. The Merchant Tailors Co., 
 
 Foley, infra. 1 1 ^^'>^- ^55 ; and see Yates v. Jack, 
 
 {u) Simper v. Foley, 2 J. & H. 55o, L. R. 1 Ch. Ap. 295 ; The Curriers' 
 
 and cases there cited. Co. v. Corbctt, 2 Drew. & Sma. 355 j 
 
 (a;) Simjicr v. Foley, uU supra. Heath v. Bucknall, L. R. 8 Eq. 1. 
 
 (y) Sect. 4. (^) Sect. 8. 
 
 (z) Sect. 3.
 
 858 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 occupation and partly out of the period immediately suc- 
 ceeding it ((;). Where it is acquired against the owner of a 
 leasehold interest in the servient tenement, it is acquired 
 also against the owner of the reversion {<J). 
 
 Whether 
 
 right lost by 
 enlargement 
 or alteration 
 of ancient 
 windows. 
 
 In order to establish the right there must, it is conceived, 
 be some building in respect of which it can be claimed (e) ; 
 but when once acquired, it will not be lost by an enlarge- 
 ment or alteration of the ancient windows (/) ; nor by the 
 destruction of the dominant tenement, Avhether by some 
 casualty, or by the voluntary act of its owner, unless there 
 is evidence of an intention to abandon the right ; as, e.g., 
 by not rebuilding the house within a reasonable period (g) : 
 nor, on rebuilding, is it absolutely necessary that the new 
 windows should be identical in situation or dimensions with 
 those which previously existed, if there is no material 
 change in the nature or in the quantum of the servitude 
 imposed (Ji) ; nor does the fact that the owmer of the domi- 
 nant tenement has within the statutory period acquired by 
 the removal of buildings a larger quantity of light than he 
 previously had, entitle the owner of the servient tenement 
 to obstruct the excess of light (/). It has been held that 
 where the owniier of ancient lights has replaced them by 
 larger windows, the Court will not restrain the owner of 
 the servient tenement from obstructing them, but will leave 
 the plaintiff to his remedy at Law (/•) ; but, in later cases, 
 this decision has been disapproved; and it appears to be 
 now well settled that the mere fact that an owner of ancient 
 
 (r) Ladyman v. Grave, L. R. 6 Ch. 
 Ap. 763. 
 
 ((Z) Simiier v. Foley, 2 J. & H. 555. 
 
 (c) See Roheiis v. Mncord, 1 Moo. 
 & Rob. 230 ; where, however, it was 
 not necessary to decide the point. 
 
 (/) Jones V. Taplinrj, 12 C. B. N, 
 S. 843 ; Tapling v. Jones, 11 H. L. 
 Ca. 320, ovemiUng Renshaw v. Bean, 
 18 Q. B. 112 ; and Jhitchimonv. Cope- 
 stake, 8 C. B. N. S. 863. 
 
 ((j) Moore v. Rau-son, 3 B. & C. 337, 
 341. 
 
 (/() The Curriers' Co. v. Corbett, 2 
 Drew. & Sma. 358 ; but see Chcrrington 
 V. Ahncy, 2 Vem. 646 ; anA Aynsley 
 V. Glover, ubi infra. 
 
 (/) Dyers' Company v. King, L. R. 
 9 Eq. 438 ; but would not the right to 
 obstruct in such a case depend on 
 whether the owner of the dominant 
 tenement had sufficient light for the 
 comfortable enjoyment of his house ? 
 Vide infra. 
 
 (/■) Heath V. Bucknall, L. R. 8 
 Eq. I.
 
 THE ABSTRACT. 359 
 
 lights has enlarged thcni, does not disentitle him to an in- Chap. Vlil. 
 
 junction to restrain the servient owner from obstracting ^c^— 
 
 them (I). According to this doctrine, which is the logical 
 consequence of holding that an alteration is not j^ey se an 
 abandonment of the easement, if the owner of a small 
 ancient light convert it into a large window, which cannot 
 be obstructed without blocking the access of light, pre- 
 viously enjoyed, through the space or aperture of the old 
 window, he will after the lapse of the statutoiy period 
 acquire, in respect of the enlarged window, the prescriptive 
 right which he originally had only in respect of the smaller 
 one ; and will in the meantime be able to prevent any ob- 
 struction, on the part of the owner of the servient tenement, 
 which may interfere with the acquisition of the right. 
 
 In the present conflict of the authorities it is very diffi- As to the 
 
 cult to lay down any definite rule as to the extent to which which the 
 
 the enjoyment of this easement can be claimed ; but it ^lA^^ ^"'"^ ^^ 
 "^ -^ ' claimed. 
 
 seems to be the better opinion that the extent of the right 
 is the same whether the dominant tenement in respect of 
 which it is claimed be situate in a town or in the country (in) ; 
 and that the right extends not only to light sufHcient for 
 the use to which the tenement is for the time being applied, 
 but also to light sufficient for any purposes for which it 
 may reasonably be used (/?). 
 
 It seems to be now well settled that the Act, although it As to the 
 has altered the mode in which the right may be acquired, Jj^j^t*''*^^ ^ 
 has not altered or extended the right itself; and that, as 
 
 (I) Aynslcy v. Glover, L. R. 19 E<( '. see observations of L. J, James on 
 
 ■ 54 4 , and see Staijht v. Burn, L. E. Clarlr v. Clark in Kelk v. Pearson, 
 
 5 Ch. Ap. 163, 167. L. R. 6 Ch. Ap. 809, see p. 812. 
 
 (m) Yates v. Jack, L. E. 1 Cb. Ap. (n) Yates v. Jack, and Dent v. 
 
 299 ; Dent v. Auction Mart Co., L. IL Auction Mart Co., ubi sujyra; but see 
 
 2 Eq. 248; Li/on v. DiUimorr, \i Jackson v. Duke of Newcastle, ^3 Jj. J. 
 
 W. R. 511 ; Martin v. Jfcadon, L. R. N. S. Ch. 698 ; 3 De G. J. & S. 275, 
 
 2 Eq. 430 ; and see contra, Clarke v. and see comments on this case in 
 
 Chrk, L. R. 1 Ch. Ap. 16 ; DureU v. Aiin-iley v. Glover, L. R. 18 Eq. 544, 
 
 Pritchard, ibid. 251 ; Jlohson v. Whit- where Sir George Jessel, M. R., 
 
 tinf/ham, 35 L. J. N. S. Ch. 228 ; and treats it as overruled by Yates \. Jack.
 
 3 GO THE ABSTRACT. 
 
 Chap. VIII. before the Act, the owner of the dominant tenement was 
 ^ Sect^e^^ only entitled to such a quantity of light as was sufficient, 
 according to ordinary usage, for the comfortable and bene- 
 ficial enjoyment of his house or shop, so, since the Act, he 
 can only acquire by prescription a right to a sufficient 
 quantity of light ; not necessarily a right to all the light 
 which he has enjoyed during the statutory period (o). 
 
 On sale of one In the casG of Nuffield V. Brown (p), Lord Westbury 
 hig tenements laid it dowii that upon the disposition of one of two adjoin- 
 by the owner ^^^ tenements by the owner of both, where the grant 
 
 of both. '^ '' _ _ " 
 
 is unlimited in terms, there is no implied reservation or 
 re-grant, in favour of the tenement retained, of a quasi- 
 easement then enjoyed therewith ; even though such quasi- 
 easement be continuous or apparent : and in a later case (q) 
 it was considered to be well settled that if a person having 
 a house on his land, the windows of which have existed for 
 more than twenty years, sells a portion of the land, the 
 purchaser may (unless restrained by the terms of his grant,) 
 erect any buildings he pleases upon the land so sold to him, 
 however nnich they may interfere with the lights of the 
 vendor's house (r). In his judgment in Suffidd v. Brovjii, 
 Lord Westbuiy carefully confined his remarks to cases 
 where the easement had no legal existence anterior to the 
 unity of possession, but was claimed, merely as arising by 
 implication upon the disposition of one of two adjoining- 
 tenements by the 0"\\aier of both ; but the principle of the 
 decision, — i.e., the rule that a grantor shall not derogate 
 from his absolute grant, — seems equally applicable to the 
 ease of an easement which has been legally acciuired before 
 the dominant and servient tenements became united 'n\ the 
 same owner (.s). In every such case a pnident vendor will, 
 
 (o) See and consider AV^- v. Pcor- by the Lords Justices notwithstanding 
 
 Boriy L. R. 6 Ch. Ap. 809. Lord Westbury's strictures upon it 
 
 {p ) 33 L. J. N. S. Ch. 249 ; over- in Suffidd v. Broion. 
 
 ruling Pyer v. Carter, 1 H. & N. 916 ; (q) The Curriers Co. v. Corhetty 2 
 
 HinchcUffe v. Earl of Kinnoul, 5 Biug. Drew. & Sma. 358. 
 
 N. C. 1. But see Watts v. Kelson, {r) Per V. -C. Kindersley, in The 
 
 L. R. 6 Ch. Ap. 166, 171, where Curriers' Co. v. Corbctt, uhl supra. 
 
 Pyer v. Carter is expressly ajjproTed (•') Vide supra, p. 357.
 
 THE ABSTRACT. 3G1 
 
 bv express reservation or re-grant, keep on foot for his own Chap. YIII. 
 
 J i- " . Sect. 6. 
 
 benefit, in respect of the tenement retained, any easement 
 
 or (|uasi-easement which he may have acquired or enjoyed, 
 or which he may desire to exercise, over the tenement sold. 
 
 Claims of right of way, water, watercourse, or any other ^Jl'^^Jj'/^^^'^^;^ 
 easement (except light) become irmnA facie valid after than light, 
 twenty years' uninterrupted enjoyment; and cannot be 
 defeated by mere proof of such enjoyment having com- 
 monccd at any prior period ; but, until forty years' uninter- 
 rupted enjoyment they remain liable to be defeated in any 
 other way in which they might have been defeated before 
 the passing of the Act ; e.g., " by proof of a grant, or of a 
 licence, written or parol, for a limited period, comprising the 
 whole or part of the twenty years, or of the absence or igno- 
 rance of the parties interested in opposing the claim, and 
 their agents, during the whole time that it was exercised" (t): 
 after forty years' uninterrupted enjoyment, they become 
 absolute and indefeasible, unless proof be given of such 
 enjoyment having been under some consent or agreement 
 expressly given or made for that purpose by deed or 
 writing (ii) : after the end of the twenty years, and before 
 the end of the forty, a grant may still be presumed by a 
 jury (./-•), notwithstanding that the enjoyment is shown to 
 have originated in an agreement by parol or writing not 
 under seal (y) : but no such presumption is admissible if the 
 o^vner of the servient tenement was incapable of rightfully 
 granting the easement : e.g., if such grant would have been 
 a breach of trust (z). 
 
 Some of the main ijoints in tlie law as to rights of way As to rights of 
 may l^e here conveniently referred to. A road may be a 
 common highway, even though it is only occasionally used 
 by the public, or is circuitous, or does not terminate in a 
 
 {t) Per Parke, B., 1 C. if. & R. df) />cu-hlrst v. Wri^h/,, 1 C. P. 
 
 219. Coop. 329. 
 
 («) Sect, 2. (^) lioi'hdalc C. Co. v. Jiadcl iffc, 18 
 
 (x) See 1 C. M. & R. 222. Q. B. 287.
 
 362 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 public way ; 
 
 town, or in some other public road ((() ; and a very short 
 continuous user of it by the j^uljlic, openl}- and as of right, 
 is sufficient to raise a presumption of its dedication to their 
 use (h) : but the presumption may be rebutted by evidence 
 of the owner's intention that tlie public should only have a 
 permissive user, as, e.g., by his arbitrarily closing the way 
 for one day in each year (c) ; or by showing that the state of 
 the title was such that a binding dedication was impos- 
 sible (d) ; but mere non-user for any number of years will 
 not destroy (c), or prevent the public from resuming (/), the 
 light to a public way ; though it may be evidence that no 
 such right ever existed. The soil of a road, whether public 
 or private, usque ad onedtum Jilum vka, is presumed to 
 belong to the adjoining owners {g) : and passes by the con- 
 veyance, even where the land is set forth by admeasurement, 
 and is described by reference to a plan which contains no 
 portion of the highway {li). 
 
 private way ; A right of private way is generally claimed by express 
 grant or reservation ; but such a grant has been presumed 
 from an uninterrupted enjoyment of twenty years not shown 
 to be merely permissive (i) ; and the presumption may be 
 raised, even where the land is in the occupation of a tenant, 
 if the user has been of long duration, or there are other 
 circumstances which prove that such user was with the 
 knowledge of the owner of the inheritance (/.•). 
 
 way of nuces- 
 sity. 
 
 A right of wa}^, by necessity, may be claimed, as arising 
 from an implied grant, on the principle that a convenient 
 way is impliedly granted as a necessary incident to the land 
 
 (a) Hex V. Inhabitants of Wands- 
 icortk, 1 B. & Aid. 63. 
 
 (b) Buybij Char'di/ v. Mcrryweatlier, 
 11 East, 376; where a period of six 
 years was held sufficient. 
 
 (c) The Trustees of the British 
 Museum v. Finnis, 5 Car. & Payne, 
 460. 
 
 (d) Her/. V. Petrie, 4 Ell. & Bl. 737. 
 
 (e) Dawes v. Hawkins, 8 C. B. N. 
 
 S. 8i8. 
 
 (/) Eex V. Montague, 4 B. & C. 
 598. 
 
 (g) Berridgc v. Ward, 7 Jiir. N. S. 
 876 ; Holmes v, Bellingham, 7 C. B. 
 N. S. 529. 
 
 (/«) Berrid'je v. Ward, uli supra. 
 
 (i) Campbell Y. Wilson, Z'Ea,?,t,2'dL 
 
 {k) Davies v. Stephe7is, 7 Carr. & P. 
 570 ; Daniel v. North, 11 East, 372.
 
 THE ABSTBACT. 3G3 
 
 conveyed (/) : but nothing short of ahsokite necessity lor the Chnp. vill. 
 
 user of tlie way at the date of the grant is sufhcient to raise — 
 
 the implication (m) ; and the right is limited by, and ceases 
 with, the necessity which created it (n). 
 
 It is for the grantor to determine what is a convenient By win.m to 
 way to the land-locked land ; but when once the way has 
 been created, it seems the better opinion that the owner of 
 the servient tenement cannot divert it at his pleasure, even 
 though the substituted way may be as convenient (o)- 
 Where on a devise a farm was severed, and there was no 
 access to one of the severed portions, except over the other, 
 and the will was silent as to any right of way, it was held 
 that there was an implied grant of a right ol" way which 
 actually existed at the death of the testator, who had himself 
 occupied the farm {-p). 
 
 A private right of way is not necessarily lost by twenty ilow riyht of 
 
 • 1 1 1 • 1 1 private way 
 
 years' non-user, the party entitled having had a more conve- ^^y be lost. 
 nient mode of access ; in order that non-user may have the 
 effect of destroying the right, it must be the consequence of 
 something which is adverse to the user (q) : and a parol 
 agreement for the substitution of a new way has been held 
 no evidence of the abandonment of an old prescriptive 
 way {}•). A right of way by prescription must be restricted 
 to the kind of user to which the prescription extends ; where 
 it depends upon grant it may be lost by the user of it for 
 purposes not authorized by the terms of the grant (.?) ; but 
 unless specially restricted, it will, as a general rule, be con- 
 strued as a right of way for all purposes. Thus, where a 
 
 (I) Proctor V. Hodyson, 10 Exch. (7) Ward v. Ward, 7 Exch. 838 ; 
 
 824, 828 ; Pcnninrjton v. Galkmd, 9 21 Law J. Exch. 334. 
 
 Exch. 1 ; 22 L. J. Ex. 349. ('•) -^^'"c?^ v. Smith, 3 C. B. N. S. 
 
 (m) Dodd V. Birchall, 8 Jur. N. S. 120, 126, 127. 
 
 1180 ; 31 L. J, Ex. 364. (s) ^^'"'^ v. Gommc, 11 Ad. & Ell. 
 
 (h.) Holme V. Goriiif/, 2 Bing. 76. 759 ; and see Ilcnnitu/ v. Burnet, 8 
 
 (0) See dicta of Blackburn, J., in I'^xch. 192 ; but see United Land Co. 
 
 Pearsony. Spencer, 7 Jur. -N.S.nd5; v. G. K. R. Co., L. E., 17 Eq. 158, 
 
 1 Best A S. 584. 162. 
 
 {p) Pearson v. Spencer, uli supra.
 
 3G4. 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 As to water 
 and water- 
 courses. 
 
 right of way was granted to A. through a gateway belonging 
 to the vendor " to a wicket gate to be erected by A.," leading 
 into part of the property conveyed to him, and A., instead 
 of building a wicket gate, erected a cart shed, and claimed a 
 right of carriage way to it, it Avas held that no restriction 
 could be implied from the terms of the grant, and that the 
 pui-chaser was entitled to a right of way for all purposes (t). 
 
 The law as to water and watercourses seems in its prin- 
 cipal points to be as follows : — Every riparian proprietor has 
 a prima facie right to fish the stream in front of his own 
 land {vb) ; and to use it for his own purposes, in any manner 
 not inconsistent with the exercise of a similar right by the 
 proprietors of land above or below ; but he can neither as 
 against those below injure the quality of the water, nor 
 sensibly diminish its quantity, nor as against those above 
 can he dam up the water to their inconvenience {x) : and an 
 action will lie for diverting the Avater, even without proof of 
 specific injury (?/). The right to divert and use the stream 
 for the purpose of irrigation, is a question of degree, which 
 cannot be precisely defined ; but depends upon the applica- 
 tion of the above general principles to the particular case {z). 
 AVhere the right to a certain fiow of water has been acquired, 
 it will not, it seems, be lost by the application of the water 
 to a new and more beneficial use {a). 
 
 No right to 
 flowing water, 
 
 But the right to flowing water ox jure natwrce only pre- 
 
 
 ''J, 
 
 Ka 
 
 3' 
 
 (/) Watts V. Kelson, L. R. 6 Oh. 
 Ap. 166 ; see note, p. 169 ; and see 
 ruitcd Land Co. v. G. E. JR. Co., 
 L. E. 17 Eq. 158. 
 
 («) Lamb v. Newhi<j(jin, 1 Car. & K. 
 549. As to who is a riparian owner, 
 and as to the power of a riparian 
 owner to grant to a non-rii^ariau 
 owner the use of the watercourse, see 
 Xuttall V. BrnceiceU, L. R., 2 Ex. 1. 
 
 {x) See Wrifjht v. Jfourird, 1 Sim. 
 & St. 190 ; il/n.soii v. 11 ill, 2 B. & Ad. 
 1 ; Acton v. Blanddl, 2 M. & W. 349 ; 
 Wood V. Wand, 3 Exch. 748 ; Emlrey 
 V. Owoi, 6 Exch. 353; Rntistron Vi 
 
 Tatjlvr, U Exch. 369. 
 
 {>j) llarrop v. Hirst, L. E. 4 C. P. 
 43 ; but ride infra. 
 
 {-) See Wood v. Wand ; Embraj v. 
 Owen, iibl supra ; Att.-Gcn. v. Corp. of 
 Plymouth, 9 Beav. 67 ; EhnUrst v. 
 Spencer, 2 Mac. & G. 45 ; Samjison v. 
 Hoddinott, 3 Jur. N. S. 243. 
 
 («) See Holkcr v. Porritt, L. R. -ZylO 
 Exch. S^ ; affirmed by the Exchequer 
 Chamber, 8 Feb. 1875 ; and see Watts 
 V. Kelson, L. R. 6 Ch. Ap. 166. As 
 to who is a riparian owner, see Holker 
 V. Porritt, uhi supra.
 
 THE ABSTRACT. 3G5 
 
 vails where it has a defined course ; and does not extend to Chap. VII r. 
 water flowing over, or soaking through, permeable land, '_! . 
 
 before it has found its way into a definite channel (h). If f^lf^^^^'^ 
 the existence of a subterraneous watercourse be a matter of defiuite 
 
 , . , , ,1 •!• -x channel. 
 
 notoriety, the landowner s rights are the same as it it were 
 superficial (c) ; thus, where there was a natural drainage by 
 means of " swallets," {i.e., funnel-shaped fissures in the rock 
 forming the Mendip Hills,) and the waters running through 
 them found an outlet at the base of the hills, a mine-owner 
 was restrained from fouling the surface water, to the injury 
 of the owner of an ancient mill who had long enjoyed the 
 water in an unpolluted state (d). But the principles which 
 regulate the rights of owners of land in respect of water 
 flowing in a certain defined course, whether in an open 
 stream, or by a known subterraneous channel, are Avholly 
 inapplicable to water percolating through underground strata 
 without any definite course (e) ; thus, it has l>OL'n held that 
 the owner of an ancient mill could not maintain an action 
 against a landowner, who, by sinking a deep well on his 
 own ground, had intercepted the water which would have 
 otherwise percolated through the soil into a river which 
 supplied the motive poAver to the mill (/) : but where water 
 from a spring flows in a natural channel, the landowner 
 cannot cut off" the spring at its source, to the injury of a 
 riparian proprietor lower down the stream (f/) ; and he may 
 not use his right to water percolating througli underground 
 strata, so as to draw ofi" the water flowing in a defined 
 channel on his neighbour's land {h). 
 
 A rierht to use a natural stream for the purpose of washing Prescriptive 
 
 (h) Broadhent v. Ramsbotham, 11 (c) CJiaxcmorc v, lilrJiard.i, 7 IT. L. 
 
 "Exch. 602 ■.a.ndaecllawstronv. Taylor, Ca. 319; 2 H. & N. 16S ; and see 
 
 ibid. 369, 382. Acton v. BlundcU, 12 M. & W. 324. 
 
 (r) Dickinson v. Grand Junction (f)Chasemorev.Iiirhards,idjisupra, 
 
 Canal Co., 7 Exch. 300, 301 ; but see questioning Dickinson v. Grand June- 
 
 Chasemore v. Richards, 7 H. L. Ca. tion Canal Co., 7 Exch. 300. 
 
 349; Grand Junction Canal Co. v. (fj) Dudden v. Guardians of Chitton 
 
 Shvfjar, L. R. 6 Ch. Ap. 483. Union, 1 H. & N. 627. 
 
 {d) HodfjMnson v. Ennor, 9 Jur. N. {h} Grand Junction Canal Co, v. 
 
 S. 1152. 8hur/ar, L. R. 6 Ch. Ap. 483.
 
 866 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 ore, and carrying off the sand, stone, and riiljble dislodged in 
 the necessary working of a mine, may be acquired by custom 
 or prescription (l) ; but where a prescriptive right to foul a 
 stream has been acquired, the fouling must not be enlarged 
 to the prejudice of the other riparian proprietors (/t) ; nor so 
 as to increase the pollution by a novel mode of user (l). The 
 mere suspension of the exercise of the prescriptive right is 
 not sufficient to destroy it, unless there is some evidence of 
 an intention to abandon it ; but where dye-works had been 
 disused for more than twenty years, the right of fouling the 
 stream which attached thereto was held to be lost (m). 
 
 Distinction 
 
 between 
 natural and 
 artificial 
 watercourses 
 as respects the 
 rights which 
 may be 
 acquired. 
 
 The same rules, which regulate the rights of user of a 
 natural stream, apply also, in general, to an artificial water- 
 course, but with this modification, viz., that in determining 
 what rights can he acquired in respect of an artificial water- 
 course, the special or temporary purpose for which it was 
 orio'inally constructed, and has since been used, must not be 
 overlooked (n). Thus, a user for twenty years of the flow of 
 water from the agricultural drainage of adjoining land gives 
 no right to its continuance {o) ; so, no prescriptive right by 
 user can be acquired to the overflow of water from a lock, 
 so as to prevent a canal company from improving the con- 
 struction of the lock (2?) ; so, a person receiving water dis- 
 charged from a mine cannot insist on a continuance of such 
 discharge (q) ; so, the flow of water for twenty years from 
 
 (i) Carli/on v. Loverinrj, 1 H. & N. 
 784 ; 26 L. J. Exch. 251. 
 
 (it) Crosskij V. Lifjldowlcr, L. R. 2 
 Ch. Ap. 478 ; L. R, 3 Eq. 279. 
 
 {I) Baxendak v. McMurrai/, L. R. 
 2 Ch. Ap. 790. 
 
 (m) Crossley wLiyhtowler, uhi supra, 
 and see also as to suspension of the 
 easement, Ladyman v. Grave, L. R. 6 
 Ch. Ap. 763 ; and as to long-con- 
 tinued interruption from natural 
 causes, see Ihdl v. Swift, 4 B. N. C. 
 381 ; and as to the right to pollute 
 streams or rivers, see Crohlsmid v. 
 Tvnlridge WeUs, dr., CommnndSi 
 
 L, K. 1 Ch. Ap. 349; Att-Oen. v. 
 Mayor, lic, of Leeds, L. R. 5 Ch. Ap. 
 583. 
 
 (n) Mayer \. Chad wick, 11 Ad. & E. 
 571 ; ^utcliffe v. Booth, 32 L. J. Q. B. 
 136 ; 9 Jur. N. S. 1037 ; Nuttall v. 
 Braccwdl, L. R. 2 Ex. 1 ; Beeston v. 
 Weale, 2 Jur. N. S. 540. 
 
 (o) Greatrcx v. Hayward, 8 Exch. 
 291 ; Wood V. Wand, 3 Exch. 748. 
 
 (p) Staffordshire and Worcestershire 
 Canal Co. v. Birminrjham Canal Co. 
 L. R. 1 E. & Ir. Ap. 254. 
 
 (q) Arhcright v. GeU, 5 M. ^ W, 
 203,
 
 THE ABSTRACT. 3G7 
 
 the eaves of a house into a neighbour's yard, does not pre- Chap. Vlli. 
 
 vent the owner of the house from pulling it down, or altering U — 
 
 it so as to discontinue or lessen the supply of water from the 
 roof (/•). 
 
 The waters of a canal, having been devoted by the Legis- ^•'* ^^ canala. 
 lature to that special purpose, are, as respects the power of 
 adjoining owners to acquire a right over them, on a different 
 footino- from waters flowino- in their natural stream, or in 
 an ordinary artificial watercourse; and the general rule 
 that the purpose for which artificial waters have been 
 collected must be regarded in determining whether any 
 prescriptive rights have been acquired over them, applies 
 with especial force to the waters of canals (s). 
 
 A right to pumiD water from a mine, and to use it, and As to right to 
 
 ° 1111 pump water 
 
 then let it off" over adjoining land, has been held to be a from a mine 
 right of " watercourse" within the Act (t) ; so, a right to ' ^^ 
 discharge rain-water from the roof of a house upon adjoining- 
 land may be acquired by twenty years' user (u). We may 
 here remark that a reservation of " water and soil" has been 
 held to mean only water in its natural condition, and such 
 matters as are the result of the ordinary use of land for 
 purposes of habitation, and not to include refuse from a 
 manufactory (;x). 
 
 The bed of all tidal navigable rivers, and of all arms of As to ow-ner- 
 
 1 /-( • -1 ^^*P '^^ ^"^^ "^ 
 
 the sea, presumably belongs to the ('rown; but pnmanly watercourse. 
 
 for the benefit of the subjects : and the public right of 
 
 navigation is paramount to the private right even of an 
 
 express grantee of the soil (?/). As between the CroAvn, or 
 
 (?•) Wood V. Wand, 3 Exch. 748 ; 77. 
 
 Arhwriijht v. Gell, uhi stqira. («) Thomas v. Thomas, 2 Cr. M. k, 
 
 [s) Staffordshire and Worrestershii'e E. 34. 
 
 Canal Co. v. Blrmuujham Canal Co., {x) Chadwich v. Marsdcn, L. R. 2 
 
 11 Jur. N. S. 71 ; L. R. 1 E. & Ir. Exch. 285. 
 
 Ap. 251 ; and see and consider Mason (if) dann v. Free Fishers of Whit- 
 
 V. Shreivshnry and Hereford E. Co., L. stalle, 11 H. L. Ca. 192. See, too, 
 
 R. G Q. B. 578. Malcolmson V. O'Dca, 10 H, L. Ca. 
 
 (0 Wr!'_jht V, WiliUmi, 1 M. & W, f.93,
 
 3G8 THE ABSTRACT. 
 
 Chap. VIII. tlie Crown's grantee and a seaside landowner, the right of 
 
 ' the former is presumably limited by the line of medium 
 
 high-tide, between the springs and the neaps {s). Where a 
 river is not navigable, the presumption is that each riparian 
 proprietor is entitled to the soil usque ad medium aquce (ji); 
 being similar to the presumption which exists in regard to 
 roads (h). No liparian proprietor can, without the consent 
 of the opposite proprietor, erect any building, or groin, or 
 make any change in the alveus of a river (c) ; and the rule 
 is the same in the case of a tidal as of a non-tidal stream (d). 
 
 w> 
 
 As to the Every landowner, independently of prescription, and as 
 
 support. ^^^ original light incident to property, is entitled to so much 
 
 lateral support from his neighbour's land, as is necessary to 
 keep his soil in its natural state (e) ; but he has no 'prima 
 facie right to overburden his own land by buildings, and 
 then to require an extraoi'dinaiy amount of support by his 
 neighbour's land (/). If however his buildings, although of 
 recent erection, do not contribute to the subsidence — that is 
 to say, if the facts show that the subsidence would have 
 occurred even if the Iniildings had not been erected, — he is 
 entitled to full damages in case of their being destroyed or 
 injured by subsidence caused by subterraneous workings 
 How the right under the adjoining land {g). The right to extraordinary 
 acquired. support is an easement coming within the provisions of the 
 
 Act ; and if not acquired by grant or reservation, can be 
 acquired only by forty years' vminterrupted enjoyment (//). 
 But the grant of such an easement may lie implied ; for a 
 
 {z) Att.-Gen, v. C'AamSers, 4 De G. (e) Hunt v. Peake, Johns, 705; 
 
 M, & G. 206. As to the title to lands Rov:hotliam v. Wilson, 8 El. & BI. 123. 
 
 gained from the sea, either by alluvion (/) Harris v. Rydinrj, 5 M. & W. 
 
 or dereliction, and either by natural 60 ; Humphries v. Broaden, 12 Q. B. 
 
 or artificial causes, see Att.-Gcn, v. 739 ; Jeffries v. WiUiams, 5 Exch. 
 
 Chambers, 4 De G. & Jo. 55. 792 ; Smart v. 3Iorton, 3 C. L. 11. 
 
 (a) Wishart v. Wylie, 2 St. So. Ca. 1004. 
 
 H. L. 68. (g) Broun v. Holins. 4 Hurl. & K. 
 
 (Z») Heg. V. Pratt, 3 C. L. E. 686. 186 ; Stroyan or Hamer v. Kaoules, 
 
 (c) Bickett V, Morris, L. R. 1 H. L. 6 Hurl. & E. 454. 
 
 Sc. 47. (A) NichoUs v. Goyford, 9 Exch. 
 
 {d) Att.-Gen. v. Earl of Lonsdale, 702; see and consider Solomon v. 
 
 L. R. 7 Eq. 377. Vintners' Co., 5 Jur. N. S. 1177.
 
 THE ABSTRACT. 369. 
 
 vendor on selling part of his land, is presumed to grant Chap. viil. 
 
 such a measure of support from his adjacent land as is . L 1_- 
 
 necessary for the land sold in its then condition, or when 
 applied to the purpose for which the grant was expressly 
 made: but the precise measure of such support depends 
 upon the special circumstances of each case (/). So, where 
 houses are built on land belonging to the same owner, and 
 are then sold to different purchasers, or some are sold and 
 others retained by the landowner, the right to mutual 
 support will be presumed, by way of reservation or grant 
 in the several conveyances (k) : but where two adjoining- 
 plots, or houses belonging to the same owner, are sold at 
 different times, the measure of support, to which the second 
 purchaser is entitled, depends on the terms of the contract 
 entered into with the first (0- 
 
 When the right of support is interfered with by the with- when right of 
 drawal from the adjoining land of the necessary supporting f^rwitMnwal 
 strata, no right of action accrues until some actual damage of support, 
 has resulted from the withdrawal of the support (_m) ; and 
 the damage must be appreciable (n) : but if the party with- 
 drawing the support insists that he has a right to do so, 
 without being liable for any damage resulting therefrom, he 
 may, it seems, be restrained by injunction, although no 
 actual mischief has occurred {<>). 
 
 (i) Caledonian R. Co. v. Sjyrof, 2 608. 
 
 Macq. H. L. Ca. 449 ; 2 Jur. N. S. (m) Bonomi r. Ihirlhouse, uhi siqyrd, 
 
 623 ; Rowhothum v. Wilson, 2 Jur. overruling Nichlin v. Williams, 10 
 
 N. S. 736 ; G Ell. & Bl. 593 ; 8 Ell. Exch. 259 : see, too, North Eastern R. 
 
 6 Bl. 123 ; 8 H. L. Ca. 348 ; 8 Jur. Co. v. Elliott, 1 J. & H. 145 ; 2 De G. 
 N. S. 965 ; Roberts v. Haines, 2 Jur. F. & Jo. 423 ; 10 H. L. Ca. 333. But 
 N. y. 999 ; 6 El. & Bl. 643 : JIaines see JJarmp v. Hirst, L. R 4 E.x. 
 V. Roberts, 7 El. & Bl. 625 ; Calc- 43, case of abstraction by riparian 
 donian R. Co. \. Ld. Belhaien, 3 Jur. owner, where the right of action was 
 N. S. 573 ; Bonomi v. Baclhouse, held to have accrue J, although no 
 5 Jur. N. S. 1345 ; 9 H. L. Ca. 503 ; actual damage had been sustained. 
 
 7 Jur. N. S. 809 ; Smith v. Harbi/, (n) Smith v. Thackrah, L. R. 1 
 L. R 7 Q. B. 716. C. P. 564. 
 
 (!•) Richards v. Rose, 9 Exch 218 ; (") North Eastern R. Co. v. Elliott, 
 
 Nicholls v. Gayford, ih. 702. uhi si'prd. 
 (I) Murchie v. Blade, 11 Jur. N. S. 
 
 VOL. I. P B
 
 370 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Right of sur- 
 face ownt r to 
 support where 
 luiiierals and 
 tlie riii'ht to 
 
 A reservation or grant of minerals, ^Yith power to work 
 tlieui, does not, in the absence of express stipulation, deprive 
 the surface owner of his natural riglit to the support of the 
 subjacent strata ; the presumption being that he retains the 
 right to enjoy the surface modo et foriiid as it was before {p) '■> 
 work them are ^ygj-^ thouo;h it may be impossible to work the mines without 
 
 reserved. o j i. 
 
 causino' a subsidence or an absolute destruction of the 
 surface (q) : and the right of support which a surface owner 
 is presumed to retain for himself on a sale of minerals, 
 belongs ecpially to an allottee under an inclosure, where the 
 minerals and the right to work them are reserved to the 
 lord of the manor (/•) : but the ordinary presumption is 
 rebutted when the Inclosure Act or deed of grant contains 
 a provision for compensation being paid by the lord of the 
 manor or the grantee in case of injury being occasioned by 
 his exercising his powers (s). And where A., by draining 
 his land, causes a subsidence of the land of B., an adjoining- 
 owner, he is not liable for the injury thus occasioned ; the 
 Connnon Law doctrine as to the right to support not ex- 
 tending to subterranean water (t). 
 
 Minerals are 
 reserved by 
 implication on 
 sales by 
 ecclesiastical 
 corporations 
 for redeeming 
 land tax. 
 
 We may here remark that the Land Tax Redemption 
 Acts, in authorizing sales of lands belonging to ecclesiastical 
 corporations, for the purpose of redeeming the Land Tax 
 charged on their other lands, provide for an implied reserva- 
 tion of the minerals. It is believed that the point is not 
 anfrequently overlooked in practice. 
 
 A reserve 
 stratum may 
 
 The absolute owner of a mineral stratum, whether under 
 
 (p) Dugdale v. liobcrison, 3 K. & J. 
 695 ; Rogers v. Taylor, 2 H. & N. 
 828 ; Harris v. Jii/ding, and i>mart 
 v. Morton, ubi supra ; and see How- 
 hotham V. Wilson, uhi supra, where 
 there was an express stipulation ; 
 ^mith V. Darhij, L. E. 7 Q. B. 716. 
 
 {q Vud-ejiehl v. Duke of Bucdeuch, 
 L. K. 4 Eq. 613 ; and cases there 
 cited ; Hext v. Gill, L. E,. 7 Ch. Ap. 
 699 ; case of china clay which could 
 
 not be worked without destroying the 
 surface. 
 
 (r) Eoherts v. Haines, 2 Jur. N. S. 
 999 ; 6 El. & Bl. 643 ; Wakefield v. 
 Duke of Buccleuch, ubi suprd. 
 
 (s) Duke of Buccleuch v. Wakefield, 
 L. R. 4 E, & Ir. Ap. 377 ; J/ext v. 
 Odl, suprd.(J^^-iif^'^/^'^ " ^cUifrxL.R 
 
 (t) Poppleicdl V. Hodkinson, L. R. 
 Ex, 248. 
 
 lO (kfif.
 
 THE ABSTRACT. 371 
 
 a grant or a reservation, is entitled to use it for any purpose Chap. VIII. 
 he thinks fit, not inconsistent with the rights of the owner 
 
 be used for all 
 purposes. 
 
 of the surface, e.g., as a means of access to adjoining 
 mineral proj^erty (n). 
 
 By the 77th section of the Railways Clauses Consolida- A railway 
 tion Act, a railway company are not to be entitled to any entitled to 
 mines of coal, ironstone, slate, or other minerals, under any ™^"g^^^^j 
 lands purchased 1 )y them, except only such parts thereof as express pur- 
 shall be necessary to be dug or carried away, or used in the 
 construction of the works, unless the same shall have been 
 expressly purchased : but they may always secure sufficient 
 sup23ort by the purchase of the subjacent minerals ; and 
 may delay such purchase until the necessity for it arises. If, 
 however, the company decline to purchase, the mine-owner 
 may work the minei-als in a proper manner according to 
 the custom of the district ; and the company cannot, under 
 their statutory purchase, claim the benefit which an ordinary 
 purchaser would have had to the subjacent and adjacent 
 support (x). So, a statutory power to construct a sewer 
 does not imply the ordinary right to the necessary lateral 
 support ; in such a case, the easement must be acquired 1 »y 
 purchase {y). 
 
 Claims of rights of common and other profits a prendre, Claims of 
 
 ri'^bts of corn- 
 
 become irrimci facie valid after thirty years' uninterrupted mon and 
 enjoyment {z) ; and cannot be defeated by mere proof of such ^Z^f.,Jrg^ 
 enjoyment having commenced at any prior period ; but until 
 sixty years' uninterrupted enjoyment, they remain liable to 
 be defeated in any other way in which they might have been 
 
 (u) Proud V. Bates, L. T. 34 N. S. (y) Metrop. Board of Worls v, 
 
 p. 406 ; Duke of Hamilton w. Graham, Metrop. li. Co., L. K. 3 C. P. 612 ; 
 
 L, R. 2 Sc. & D. Ap. 160. affid. L. R. 4 C. P. 192 ; and see 18 
 
 (x) G. W. R. Co. V. Bennett, L. K. 2 & 19 Vict. c. 120, ss. 135, 150, 151 ; 
 
 'E.klv.\Y>.2T ■,Fhtcherw.G. W.Il.Co., and 11 & 12 Vict. c. 112. s.^. 38,66. 
 4 H. & N. 242 ; affd. 5 H. & N. 689 ; (:) See Bailey v. Appleyard, 8 Ad. & 
 
 and see Caledonian R. Co. v. Sprot, 2 E. 161. See 778. The title acquired 
 
 Mac((. 11. L. Ca. 449, a case before by user can be merely co-extensive 
 
 the Railways C. C. Act; Dudley Canal with the user, Daries v. William.", 16 
 
 Co. V. GvQzehrook, 1 B. & Ad, 59. Q. B. 546, 
 
 p b2
 
 872 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Sect. 6. 
 
 defeated before the passing of tlie Act. After sixty years' 
 uninterrupted enjoyment, they become absolute and inde- 
 feasible, unless proof be given of such enjoyment having been 
 under some consent or agreement expressly made or given 
 for that purpose by deed or writing ((<). But a claim to a 
 right of common, &c., may be defeated after thirty years' 
 enjoyment by showing that it could not have had a legal 
 origin (h) ; and it would seem that the Act does not apply 
 to any case where the establishment of a right by means of 
 it would be a violation of the express terms of statutes pro- 
 hibiting the granting of such a right (c) : nor where the 
 claim is one which cannot be lawfully made by custom, pre- 
 scription, or presumed grant (t?). 
 
 Claim of right 
 of fishing, &c . 
 
 A right to hawk or fish, implies a right to carry away the 
 game or fish ; and is therefore a right of profit d iwendre (e) ; 
 and even a rio-ht to anr>le for amusement, leavino- the fish on 
 the shore for the landowner, has been held to be of the same 
 nature (/) : so, also a right to shoot. But the mere right to 
 hunt, that is, to follow in the pursuit of game over land, 
 does not of itself import the right to the animal when taken ; 
 and, if confined to the individual claimant, would seem to be 
 attributable to a mere personal licence of pleasure : but where 
 the right is exerciseable by the claimant or his assigns " along 
 with servants," it is considered to involve a right to carry off 
 the game {g). 
 
 Right to dig 
 coal, &c. 
 
 A right to dig coal or other minerals on another man's 
 land is a right to a profit cl ]jrendre, and, if reasonable and 
 certain, may be claimed by prescription (Ji) ; though not by 
 
 (a) Sect. 1. Welcome v. Upton, 5 (e) Wkhhavi v. Haivhr, 7 M. & W. 
 
 M. & W. 398. 63 ; Juvurt v. Graham, 7 H. L. Ca. 
 
 (6) Mill. V. Neio Forest Commis- 331. 
 
 sioners, 18 C. B. 60 ; 2 Jur. N. S. (/) Bland v. Lipscomhc, 3 C. L. E. 
 
 520. 261. 
 
 (c) Mill V. New Forest Commis- ((j) See WiMiam v. Ilmvlcer, and 
 
 sioners, IS C. B. 60 ; 2 Jur N". S. £ wart v. Graham, uhl supra. 
 
 520. (A) Paddock v. Forrester, 3 Miin. & 
 
 {d) Clayton v. Corby, 5 Q. B. 415 ; Gr. 903. 
 Att.-Gcn. V, Mathias, 4 K. & Jo 579.
 
 THE ABSTRACT. 873 
 
 custom (i) : but a claim to dig and cany away the soil from Chap. viil. 
 another's land, without stint or limit, cannot be established '— — 
 
 by prescription (Z). 
 
 Whether the rio-ht to the sole and several herbage and ^^n^* ^^ s°^^ 
 
 , , , pastvu'age. 
 
 pasturage of land is within the Act seems doubtful (I) ; but 
 the right to take, alovg with others, any of the produce of 
 land, e.g., grass, turves, or trees — or of the soil itself, e.g., 
 sand, clay, or stones — is a right of profit d prendre ; which, 
 within reasonable limits, may be claimed by prescription. 
 The right to entei- and draAv water from a natui-al spring is, 
 however, an easement, and not a profit a prendre ; running- 
 water being no part of the soil, nor the produce of the 
 soil {in). 
 
 From what has been previously said, it would appear that Teriod for 
 the period for which a vendor, in order to show a title under s,es.sion must 
 the Act, must prove uninterrupted enjoyment, is as follows : evidence'^of 
 viz., twenty years in the case of lights ; forty years in the case *^*^^®- 
 of ways, waters, watercourses, and other easements (except 
 lights) ; and sixty years in the case of rights of common and 
 other profits d prendre : but, in the second class of cases, 
 where the land or water Avhich is sought to be affected by 
 the easement has, during the period of enjoyment, been held 
 for life, or for any term exceeding three years, the rever- 
 sioner, notwithstanding the expiration of the forty years, 
 has a period of three years from the determination of the 
 particular estate in Avhich to resist the claim {n) ; so that 
 unless (as can seldom be the case,) the vendor can show the 
 title to the land or water, he cannot, by evidence of enjoy- 
 
 [i) Att.-Gen. v. Mathias, 4 K. & Jc. 7 Ch. Ap 699 as to what is included 
 
 579, 591 ; but see Bo'jcrs y. Brenton, in the term " minerals." 
 
 10 Q. B. 26. (l) See Welcome v. Upton, 5 M. & 
 
 {k) Clayton v. Corhij, 5 Q. B. 415 ; W. 398, 403 ; but see 6 M. & W. 536, 
 
 Ait.'Gen. v. Matldns, iiU supra. As 542. 
 
 to stone being a "mineral," sec (m) I^acc v. Wan!, 4 Ell. & Bla. 
 
 BarviU v. lioper, 3 Dre. 294 ; and 702 ; 1 Jur. N. S. 704. 
 
 BeU V. Wilson, L. R. 1 Ch. Ap. 303, (n) Sect. 8. See Pall: v. Skinner, 17 
 
 2 Dre. & Sm. 395 ; and cases cited in Jur. 372 ; 10 Q. B. 568. 
 judgments. See too IIcxl v. Gill, L. E,
 
 374 THE ABSTRACT. 
 
 Chap. VIII. ment, make a good title to the easement (o) ; and enjoyment 
 ^Sect^^^^ which gives no title as against the reversioner, gives no title 
 as ao-ainst the owner of the particular estate {p) : and it 
 must be observed that, as regards the primd facie title which 
 is gained by a thirty or twenty years' possession under the 
 first and second sections of the Act, the time during which 
 there may have been any disability, or a subsisting life 
 estate, is altogether excluded by the seventh section. But 
 as respects the easement of light, the Statute contains no 
 reservation of the rights of the reversioner (q). 
 
 Enjoyment In all the above cases (except that of a claim to light), 
 
 must have ^|^g eniovment must have been uninterrupted (r), " as of 
 
 lieen unm- •^ "^ 
 
 temipted rifht " (s) ; and must have been subsisting within, at most, a 
 
 A ^ 
 
 ri^ht. year before the commencement of the action in which it is 
 
 relied on (t) : the claim therefore may be defeated by show- 
 ino- that, for the whole or a part of the period relied on, the 
 enjoyment was by parol licence ; or was exercised by stealth, 
 or without the knowledge of the parties interested in 
 opposing the claim ((() ; or that the party exercising it was 
 himself, during all or any part of such jDeriod, entitled to the 
 possession of the property sought to be affected (x). In 
 cases falling under sections 1, 4, and 7 of the Act, an enjoy- 
 ment, as of right, may be proved, by showing enjoyment for 
 several periods, amounting together to the statutory time ; 
 and that, during the entire intervals between such periods, 
 
 (o) Bright V. Walker, 1 C. M. & E. W. 220 ; WinMp v. Hudspeth, 10 
 
 219. Exch. 5. 
 
 [p) S. C. 221. (•'^) Onleij v. Garelincr, 4 M. & W. 
 
 (5) Vide snprd. 500 ; Chnjton v. Corby, 2 Q. B. 813 ; 
 
 (r) Onlcy v. Gardiner, 4 M. & W. Clay v. Thacleray, 9 Car. & P. 47 ; 2 
 
 500, M. & E. 244 ; Battishill v. Reed, 18 
 
 (s) See Bceston v. Weate, 5 El. & C. B. C96 ; Ilarbklr/e v. Warwick, 3 
 
 Bl. 986. Exch. 552 ; James v. Plant, 4 Ad. & 
 
 (t) See Parker v. Mitchell, 11 Ad. Ell. 761 ; Simper' v. Foley, 2 J. & H. 
 
 & E. 788 ; Flii/ht v. Thomas, 8 CI. 555. As to the non-extinguishment 
 
 & F. 231 ; Lov;cv. Carpenter. 6 Exch. of a necessary easement by unity of 
 
 825. seisin, see Pheyscy v. Vicary, 16 M. & 
 
 (u) See Bright v. Walker, 1 C. M. W. 484. Compare on this point 
 
 & R. 219 ; Tickle v. Brown, 4 Ad. & Ladyman v. Grave. L. R. 6 Ch. Ap. 
 
 E. 369 ; Partridje v. Scott, 3 M. & 763. 

 
 THE ABSTRACT. 
 
 375 
 
 and between the last of them and the action, (if such interval Chnp. vill. 
 
 . , I , Sect. 6. 
 
 intervened,) the estate sought to be attected was ni the hands 
 
 of a tenant for life or for years exceeding three years (ij). 
 
 But, as respects the easement of light, the mere fact of Except in 
 uninterrupted enjoyment for twenty years, otherwise than 
 by consent given by deed or writing, confers an absolute 
 title. The enjoyment need not be " as of right ;" so that 
 proof of a parol licence is immaterial (z) ; and so as there be 
 no submission to or acquiescence in (rt) an adverse interrup- 
 tion, absolute continuity of enjoyment is not essential (6) ; 
 nor does the existence of disabilities or particular estates 
 make any difference: but the enjoyment of the access of 
 light must have been in the character of an easement, dis- 
 tinct from the enjoyment of the land sought to be affected ; 
 so that sixty years' enjoyment of lights looking out upon a 
 garden which the owners of the house had held during that 
 period, as tenants from year to year, was held insufficient to 
 confer a title (c). 
 
 By interruption, it may be observed, is meant an adverse ^^J^J^t u'i" 
 obstruction, and not a mere discontinuance of user (d) ; but 
 the question, whether a discontinuance was voluntary or 
 otherwise, is one for a jury (e) ; and although interruptions 
 for less than a year will not in themselves prevent the 
 operation of the Statute, yet they have a material bearing 
 upon the question whether the enjoyment has, in fact, been 
 " as of right" (/) : and an interruption by a stranger is 
 within the Act (g). So that, as between vendor and pur- 
 chaser, it would seem to be necessary to give evidence of 
 
 0/) Clayton v. Corhi/, 2 Q. B. 813. (0 Harbkhje v. ^Vancick, 3 Exch. 
 
 (z) Mayor, Ac. of London v. Pciv- 5^-' 
 
 tcrcrs' Company, 2 Moo. & R 409 ; i'^) ^'^'t v. Foster, 3 il B. 581 ; and 
 
 Fliyht V. Thomas, 11 Ad. & E. 688, «eu Rey. v. Chorlcy, 12 Q. B. 615 ; 
 
 see p. 695 ; and see Plasterers' Co. Ladyman v. Grave, ubi supr&. 
 
 V. Parish Vlerls Co., 6 Exch. 630. (0 <-'«"' v. Foster, ubi siqmh 
 
 (a) Glover v. Coleman, L. R. 10 (/) ^'«<'"» ^'^ Siransca Water Works 
 
 C. P. 108. <-''^-> 1' <i- ^- 267, 274. 
 
 (6) Ladyman v. Grave, L. K. 6 Ch. {<j) Duties v. Williams, 16 Q. B. 
 
 Ap. /o3. 516.
 
 370 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 (so near as may be) continuous user (//). It has been held 
 in the case of light, that payment of rent for the easement 
 is not an " interruption ;" but the Court left untouched the 
 question whether such payment showed the enjoyment to 
 be different from that contemplated by the Act (i). It has 
 been decided by the House of Lords (A), confirming the 
 decisions of the Court of Queen's Bench and Exchequer 
 Chamber, that, under the 4th section of the Statute, which 
 provides that no act shall be deemed an interruption, unless 
 submitted to or acquiesced in for one year, a party who has 
 uninterruptedly enjoyed or used the easement or right for 
 any period exceeding one year short of the term which 
 would be sufficient to confer a statutory title, can, upon 
 being disturbed in his enjoyment or user at any time within 
 the last year of the statutory term, at once claim the benefit 
 of the Statute. 
 
 Title under By the 3 & 4 Will. IV. c. 27, the time within which pro- 
 
 the Statute of i-i x '-Ti-ij? 
 
 Limitations. ceedings can be commenced eitlier at Law or m Lquity tor 
 the recovery of any land (I), or of any rent, is restricted to 
 a period of twenty years (jii), or, in case of continuous (-Ji) 
 disabilities (o), forty years from the time at which the right 
 to proceed for the recovery of such land or rent first accrued 
 to the plaintiff, or to the party through whom he claims (p). 
 And the Act does away with the old doctrine of non-adverse 
 possession, except in cases falling within the loth section (q), 
 which has now ceased to be operative. 
 
 "Land"— its The word "land" by force of the first section includes all 
 meaning cori3oreal hereditaments, and also tithes (except tithes be- 
 
 withm the ••■ ^ -^ 
 
 Act. longing to a spiritual or eleemosynary corporation sole), and 
 
 (h) See Loive v. Carpenter, 6 Exch. 
 825. 
 
 (i) Plasterers' Co. v. Parish Clerks 
 Co., 20 L. J. 362, Exch. Ch., see 364; 
 G Exch. 630. 
 
 (Jc) Flifjht V. Thomas, 8 CI. & F. 
 231 ; see as to interruption of ancient 
 lights, and generally as to the lav/ 
 of light.o, Latham's Lav/ of Window 
 
 Lights. 
 
 (0 Or title deeds. 
 
 (»i) See sects. 2 & 24. 
 
 («) Goodally. Skerratt, 3 Dre. 216. 
 
 (o) See sect. 16, 17, 18, & 19. 
 
 {p) See sect. 1, and Doe v. Ed- 
 monds, 6 M. & W. 295. 
 
 {q) Nepeau v. Doe, 2 M. & W. 894.
 
 THE ABSTRACT. 377 
 
 any share or interest therein (r). The operation of the Chap, viii. 
 
 Statute is confined to cases where there are two parties, ' 
 
 each claiming an interest in the land or tithes; and does not 
 apply as between tithe-OAvner and terre-tenant (s) ; but by 
 53 Geo. Ill, c. 127, s. 5, the period of account in Equity for 
 tithes as between the terre-tenant and tithe-owner is limited 
 to six years before filing the bill (t). 
 
 The Avord "rent" by the first section includes heriots, and "Kent"— its 
 all services and suits for which a distress may be made ; and wUhhuhe 
 all annuities, and periodical sums of money charged upon or ^^^''• 
 payable out of any land (except moduses or compositions 
 belonging to a spiritual or eleemosynary corporation sole). 
 The term has been held to include (juit-rents {u) ; but not 
 rent reserved on a demise as between tenant and rever- 
 sioner (x). So, heriots payable at uncertain intervals, and 
 rent payable at greater intervals than twenty 3'ears (a case 
 not likely to happen), do not appear to fall within the statu- 
 tory definition, though they may still be considered as jDro- 
 perly falling within the more general pi'ovisions of the 
 second section (?/). 
 
 Filing of the bill, and not service, is the commencement what is the 
 of the suit for the purposes of the Act (s) ; and an amended J'n^^of the 
 bill dates from the filing of the original bill («) : but unne- ^"^^• 
 cessary delay in instituting or prosecuting the proceedings 
 may disentitle the plaintiff to the assistance of the Court (h). 
 
 (>•) As to the statutory meaning of (:) Coppin v. Gray, 1. Y. & C. C. C. 
 
 the word land in future Acts of 205 ; Morris v. Ellis, 7 Jur. 413 ; 
 
 Parliament, see 1-3 and 14 Vict. c. 21, Purccll v. Blennerhasset, 3 J. & L. 24 ; 
 
 sect 4. Ilarrisson v. Duiijnun, 2 Dm. & W. 
 
 («) See Dean and Chapter of Ehj 295 ; Forster v. Thompson, 4 Dru. & 
 
 V. Cash, 15 M. & W. 617. W. 303 ; Boyd v. Iliyrjinson, Fl. & K. 
 
 {t)Ooodcv. irato-s, 20 L. J. 72. 603; but see Att.-Ocn. v. Hall, 11 
 
 (m) De Beauvoir v. Owen, 5 E.xch. Pri. 760. 
 166, 176 ; Lord Chichester v. Hidl, 17 ('') Blair v. Ormoml 1 De G. & S. 
 
 L. T. 121, Q. B. 428 ; Byron v. Cooper, 11 CI. & Fin. 
 
 ix) Grant v. Ellis, 9 Af. & W. 113. 556. 
 
 {y) See Baron Parke's judgment (i) Forster v. Thompson, Coppin 
 
 in Owen v. De Beauvoir, 16 M. & W. v. Gray, and Boyd v. Iliyrjinson, ubi 
 
 566 ; De Beauvoir v, Owen, 5 E.xch. supra, 
 166, 176,
 
 378 
 
 THE ABSTRACT. 
 
 Chap. YIII. The appointment of a receiver prevents time from running 
 ___!!_L^^ in ItiNour of (c), but not as against (d), a stranger to the suit. 
 
 Saving in case 
 of disability, 
 &c. 
 
 The Act contains a saving clause in case of disability 
 arising from infancy, coverture, idiocy, lunacy, unsoundness 
 of mind, or absence beyond the seas (e) ; in any of which 
 cases, an action may be brought at any time within ten 
 years next after the time at which the person to whom the 
 rio-ht to brino- the action shall have first accrued, shall have 
 ceased to be under such disabihty, or shall have died. This 
 saving clause applies where there is a succession of dis- 
 abilities without break ; thus (/), where A., being an infant 
 when her title accrued in 1833, married during minority 
 and continued under covei'ture until she and her husband 
 brought their action in 1870, it was held that the action 
 was maintainable. No action is to be brought where a 
 person has been subject to any of these disabilities, except 
 A\'ithin forty years after the right of action first accrued (<j) ; 
 and no time beyond this maximum limit is allowed for a 
 succession of disabilities (A). No part of the United King- 
 dom, nor the Isle of Man, Channel Islands, nor any of the 
 adjacent islands are to be considered as "beyond the seas" 
 within the meaning of the Act (i) ; and this provision has 
 been held to apply to cases of residence in Ireland, kc, 
 before the passing of the Act, if the controversy do not arise 
 until after the passing of it (k). By the Mercantile Law 
 Amendment Act (l), the absence beyond the seas of the 
 person entitled to sue is no longer to be a disability ; and 
 this enactment is retrospective. 
 
 Right when 
 deemed to 
 have accrued 
 in certain 
 cases. 
 
 The 3rd section of the Act fixes the time at which, in cer- 
 tain specified cases, the right shall be deemed to have accrued: 
 
 (c) Wriroa v. Vize, 3 Dm. & W. 
 lOi, 123. 
 
 ((7) Harrisson v. Dalynan, ubi 
 supra. 
 
 (e) Sect. 16. 
 
 (/) Borrows \'.Ellison,\^.T\.. 6Exch. 
 128. 
 
 {rj) Sect. 17. 
 
 (/() Sect. 18. 
 
 (0 Sect. 19. 
 
 {k) Ex parte IlasscU, 3 Y. & C. 617. 
 
 (0 19 & 20 Vict. c. 97, ss 10, 12 
 Paruo V. B'nt'jham, L. 11. 4 Ch. Ap. 735 ; 
 and see 37 & 38 Vict. c. 57.
 
 THE ABSTRACT. 379 
 
 these cases, however, are put merely by way of illustration, Chap. viii. 
 and not with the view of limiting the operation of the 2nd 
 
 General rule. 
 
 section (;u). The general principle seems to be, that when a 
 l^arty has been in possession or receipt of the profits of the 
 land, or in receipt of rent, the light accrued at the time when 
 he last held such possession or received such profits or 
 rent (n) ; while in the case of a part}' who has never had 
 such possession or receipt, the right accrued at the time when 
 he first became entitled (whether by descent, alienation, 
 falling in of a remainder or reversion, forfeiture, devise (o), 
 or other^\^se) to enter into such possession or receij)t. A As against 
 mortgagee may, however, recover the mortgaged land at any ° " 
 time within twenty years after the last payment of principal 
 or interest, notwithstanding twenty years or upwards may 
 have elapsed since his right to enter accrued under the 
 mortgage deed Q)) : and this, although a valid title to the 
 land, may, under the Statute, have been acquired by a 
 stranger as against the mortgagor (q) : and a jDurchaser from 
 a mortgagee under a power of sale in the mortgage deed, or 
 from the mortgagee and mortgagor, is also, it appears, within 
 the saving (r). Where the mortgage deed contains no pro- 
 vision for quiet enjoyment by the mortgagor until default, 
 the mortgagee upon the execution of the deed has an 
 immediate right of entry, and ejectment must be brought 
 within twenty years after its date, in default of any pay- 
 ment by the mortgagor («). It seems the better opinion 
 that a inoYtga,gee 8 prima facie absolute title by twenty years' 
 possession is not defeated by his having kept accounts of the 
 rents Avhich he has received, or by his having otherwise acted 
 as if he were only mortgagee (f). Time does not run against 
 the grantee of an annuity charged on land, so long as the 
 annuity is paid (u). 
 
 (m) See James v. SnUcr, 2 Bing. Ford v. Affcr, 2 N. R. 366. 
 
 N. C. 505 ; 4 Sc. 168. ('•) Doe v. Afassc!/, 17 (J. B. 373, 
 
 (a) Owen v. Be Beauvoir, 16 M. & Doc v. Williams, 5 Ad. & E. 291, 297. 
 
 \V. 547. (-f) Doe d. Roylance v. Lifjhtfoot, 
 
 {o) See James v. Salter, 4 Sc. 16S, 8 M. &\V. 553. 
 
 180. (t) Baker V. Wetton,\\ Sim. 426; 
 
 (p) 7 Will. IV. & 1 Vict. c. 23. Sug.l. Stat. 117. 
 
 (q) Doe V. Byre, 17 Q. B. 3G6 ; (u) Scarlc v. Coll, lY.kC.C. C. 36.
 
 380 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 As against 
 administrator. 
 As against 
 remainder- 
 man. 
 
 In case of 
 express trust. 
 
 As against an administrator, time runs from the death of 
 the intestate (.r). 
 
 Time does not begin to run against a remainderman, until 
 his right to possession accrues (y) ; but as against his right 
 to recover damages from a tenant for life who has committed 
 a tortious act, e.g., who has wrongfully cut timber, the 
 Statute runs as from the date of such act (z). 
 
 In the case of an express trust, i.e., a trust expressly de- 
 clared by a deed, will, or other written instrument, the right 
 does not accrue under the 25th section of the Act until a 
 conveyance has been made to a purchaser for valuable con- 
 sideration; and then only as against such purchaser and 
 persons claiming under him (a) : but, in order to bring a 
 case within this section, the relation of trustee and ceiiitul 
 que trust must be clearly constituted (h) ; though, of course, 
 it is not necessary that the word " trust " should be employed, 
 in order to constitute the relation (a). 
 
 Under Judica- 
 tureAct, 1873. 
 
 We may here remark that by the new Judicature Act the 
 claim of a cestui que trust against his trustee for any 
 property held on an express trust, or in respect of any breach 
 of such trust, is not to be barred by any Statute of Limita- 
 tions (d). 
 
 Cases of ex- 
 press trust 
 within the 
 section. 
 
 A trust by deed or will for the payment of debts, annuities, 
 portions or the like, is within the 2.5th section of the old 
 
 (x) Sect, 6. See Holland v. Clarl, 
 1 Y. & C. C. C. 151, 170. 
 
 {y) Thompson v. Simpson, 1 Dru. & 
 W. 459, 489. 
 
 (2) Sear/ram x. Knif/ht, L. E. 3 Ecj. 
 393; L. R. 2 Ch. Ap. 628 ; nirjin- 
 botkam V. Ilcnvkins, L. E. 7 Ch. Ap. 
 676. 
 
 {a) Sect. 25. Ait.-Gtn. v. Flint, 4 
 Ha. 147 ; Pdrc v. Pdre, 1 Drew. 397; 
 and see as to express trusts, Salter 
 V. Cavanayh, 1 Dru. & W. 668 ; 
 Biirne v Robinson, ib. 668 ; Knlijht v. 
 
 Bovycr, 23 Beav. 009 ; 2 De. G. & 
 Jo. 421 ; Bidlocl v. Dovnes, 9 H. L. 
 Ca. 1. 
 
 ib) Laio V. Bagiccll, 4 Dra. & W. 
 398 ; Younrj v. Lord Watcrpark, 13 
 Sim. 204 ; 10 Jur, 1 ; Burne v. Ro- 
 binson, I'M supra. 
 
 (r) Commissioners of Charitable Bo- 
 nations V. Wybrants, 2 Jo. & L. 182, 
 197 ; Hunt v. Batcman, 10 Ir. Eq. 
 Eep. 360. 
 
 (d) See 36 & 37 Vict. c. 66, sect. 25, 
 sub-sect. 2.
 
 THE ABSTRACT. 381 
 
 Act (e) ; so also is a direction to trustees to pay tlic testator's Chap. viii. 
 
 debts, followed by a devise to them, subject to the payment __^^_LI^ 
 
 thereof, upon trust for successive beneficiaries (/) ; but a 
 
 charge of debts, even though coujjled with a direction to pay Cases not 
 
 them, is not an express trust, where there is no devise to the ^^Uon 
 
 executors {g) ; so a beneficial devisee of realty, charged with 
 
 the payment of debts or legacies, is not a trustee within the 
 
 section (A) : but where an express trust is created with regard 
 
 to charges upon land, it falls as much within the saving of 
 
 the Statute, as if the trust had applied to the land itself (?) ; 
 
 so, also, where the land is devised upon trusts for sale with 
 
 a direction that the proceeds are to be considered as personal 
 
 estates, and the land remains unsold (/.•). Where the assignee 
 
 of a bankrupt took for his own benefit a conveyance from 
 
 the trustee of a will of the legal estate in property to which 
 
 the banki'upt was equitably entitled, it was held that he 
 
 took it upon an express trust; viz., that declared by the 
 
 will : and that the Statute afforded no defence to a suit for 
 
 the recovery of the estate, and the mesne profits (I). A 
 
 purchaser's liability for unpaid purchase-money, under the 
 
 ordinary vendor's lien, is not an express trust {m). 
 
 But the rule that a trust is not barred by length of time. The section 
 applies only as between cestui que trust and trustee; and not as bet\veen^ 
 as between trustee and cestui que trust on the one side, and ^^^^f^ ^^"^ 
 
 -^ cestui que 
 
 strangers on the other («) : and the case of one cestui que «'■««<• 
 trust ousting his co-cestui que trust is not within the 
 section (o). 
 
 (c) Dlllun V. Cruhe, 3 Ir. E(i. Reji. 38 i. 
 
 70 ; Young v. Lord IVaterparl; ubi (!) Burroiccs v. Gore, G H. L. C. 
 
 suprcl ; Hunt v. Balenuin, ubi sujird ; 907, 961. 
 
 Francis v. Grover, 5 Ha. 39. [l) Miitlow v. Biyj, L. R. 18 Eq. 
 
 (/) Hunt V. Batciaan, ubi supra. 24<5. 
 
 {(j) Dickinson v. Teasdale, 1 De G. (/) Sturr/is v. Morse, 3 De G. & 
 
 J. & S. 52 ; and cases there cited ; 31 Jo. 1 ; 2 De G. F. & Jo. 223. 
 
 Beav. 511. (m) Toft v. Stephenson, 7 Ha. 1 ; 1 
 
 {h) Proud V. Proud, 32 Beav. 234 ; De G. M. & G. 28, 
 
 and see Jacquet v. Jacquet, 27 Beav. {n) See Llewellyn v. Machicorth, 
 
 332. As to an executor constituting Barnard, C. R. 445. 
 
 himself a tinistee for a pecuniary (o) Burroughs v. M'Crci'jld, 1 J. & 
 
 legatee, see ryso« v. /«d-5on, 30 Beav. L. 290; Lister v. Pickford, 11 Jur.
 
 382 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 Sect. (5. 
 
 Fraud. 
 
 In cases of concealed (tliat is, of designed and hidden (2^) ) 
 fraud, time does not beg-in to run until the fraud was, or, with 
 reasonable diligence, might have been, discovered (q) : but 
 this is not to affect a hondfide purchaser foi valuable con- 
 sideration without notice or suspicion of the fraud. In the 
 case of a firm, it has been held that the fraud of one member 
 prevents time from running in favour of his copartners, 
 although innocent of, and deriving no benefit from, the 
 fraud {)'). 
 
 The Act expressly provides against any interference with 
 the rules which guide a Court of Equity in refusing relief, 
 on the ground of acquiescence or otherwise, to any person 
 whose right to bring a suit may not be barred by virtue of 
 
 the Act (.s). 
 
 Charities 
 within the 
 Act.. 
 
 The Act contains no special saving in favour of charities ; 
 and it was for a long time doubted, and the earlier authori- 
 ties seem to leave it an open ([uestion {t), whether the 
 Statute was intended to apply to them The ground for 
 this doubt was, that prior to the Statute, no lapse of time 
 was a bar to the claims of a charity ; and the question was, 
 whether this ancient equitable rule was still to prevail ; or 
 whether, in the absence of express exemption, the ordinary 
 statutory limitation was applicable in the case of a purchaser 
 
 N. S. 649 ; KaujU v. Bowyer, 23 
 Beav. 609 ; 2 De G-. & Jo. 43. See as 
 to agents, Att.-Gen. v. Corp. of Lon- 
 don, 2 Mac. & G. 259. The institu- 
 tion of a suit to carry out the trusts 
 of a will, of course does not preserve 
 the right of the disinherited heir : 
 Simmons v. Rmlall, 1 Sim. N. R. 115. 
 
 (p) Petre v. Petre, 1 Drew. 397 ; 
 Dean v. Thvaite, 21 Beav. 621. 
 
 (q) Sect. 26 ; and Leicis v. Thomas, 
 3 Ha. 26 ; Deanv.Thuaite, ullsupra; 
 Smith V. Arton, 26 Beav. 210. 
 
 (r) Blair v. Bromley, 2 Ph. 354 ; 
 as to fraud consisting in secretly pur- 
 chasing from a person non compos, see 
 Lcxm V. Thomas, 3 Ha. 26 j Grcw- 
 
 sladc V. Dare, 20 Beav. 284 ; and 
 compare Mauley v. Bewicle, 3 K. & J. 
 346. 
 
 (s) Sect. 27. See Life Assoc, of 
 Scotland v. Siddal, 2 De G. F. & J. 
 72, 73. 
 
 (0 See 1 Dru. & W. 288 ; 2 Dru. 
 & \V. 69 : and see Att.-Gen. v. Mayor 
 of Corentry, 2 Vern. 399 ; but tee 
 Commissioners of Charitable Donations 
 V. Wyhrants,2 J. & L. 1S2, If 5 ; Att.- 
 Gen. v. Mar/d. Coll., 18 Beav. 238, re- 
 versed 6 H. L. Ca. 189, 206 ; Att.- 
 Gen. V. Wilkins, 17 Beav. 285 ; Att.- 
 Gen. v. Bavey, 19 Beav. 521, reversed 
 4 De G. & Jo. 13C ; Att.-Gen. v. 
 Payne, 27 Bea,Y. IG8.
 
 THE ABSTRACT. 383 
 
 of a charity estate. It is now, however, well settled that Chap. VIII. 
 
 charities fall within the general prohibition contained in the '—L- 
 
 24th section ; and the ordinary statutory bar extends, not 
 merely to an absolute alienation, but also to an improvident 
 Ijase of the charity estate {u). But in order that the 
 charity may be bound, there must be some person com- 
 petent to make a claim on its behalf; thus, where there is 
 no trustee, or none properly appointed, or where there are 
 no ascertained objects of the charity, the Statute will not 
 run (x) : and where, as is generally the case, the charity 
 estates are held upon express trusts, they fall within the 
 saving of the 25th section. 
 
 No person is to be deemed to have been in possession of Faitry. 
 any land, within the meaning of the Act, Ijy reason merely 
 of his having made an entry thereon (ij) : but this refers to 
 a merely formal entry. If A., the owner, actually turn B., 
 the occupier, out of possession, this saves the statutory bar, 
 although A. retain possession for only one hour, and B. 
 immediately resume it (,?). So, where a writ of ejectment 
 was served by the owner on a tenant at will, and it was 
 then verbally arranged that the latter should remain in the 
 occupation of part of the property during his life, it was 
 held that this amounted to an actual entry ; and that as a 
 new tenancy was created, the Statute began to run from 
 this time, and not from the date of the original tenancy (a). 
 
 The 7th section enacts, that the ri^ht of a person entitled Tenancy at 
 
 " ^ will, 
 
 subject to a tenancy at will is to be deemed to liave first 
 
 accrued, either at the determination of such tenancy, or at 
 
 the expiration of one year next after the commencement of 
 
 such tenancy, at which time such tenancy shall be deemed 
 
 (h) Att.-Gen. v. Payne, and Att.- (/y) Sect. 10. 
 
 Gen. V. Dare;/, uhl supra; and aec Pre- (:) Rainhill v. Stevens, 2 EI. & B. 
 
 sident of Magd. Coll. v. Att.-Gen., Q G41. 
 
 H. L. C. 189. ('() Lnrlev. Matthews, 9 Jur. N. S. 
 
 {x) Incorporated Society v. Richards, 875 ; 32 L. J. C. P. 98 ; 13 C. B. N. 
 
 1 D. & War. 258 ; Att.-Uen. v. Pcrsse, S. 753 ; and .see Randall v. Stevens, 
 
 2D. &War. G7. 2 E. & B. 641.
 
 oS-t THE ABSTRACT. 
 
 Chap. VIII. to have determined ; but it provides that no mortgagor or 
 
 ' cesfal que trud sliall be deemed to be a tenant at will 
 
 Mortgagor within the meanino- of this clause to his mortgagee or 
 
 and cestui que " o o 
 
 t>-ust. trustee. This proviso is applicable only to cases of expirees 
 
 trusts ; and not to cases of a quasi-fiduciary character. 
 Where a purchaser is let into possession before completion, 
 he is prlmcl facie a tenant at will within the section (IS). 
 In cases of express trust, a cestui que trust, whose possession 
 is consistent with the trust, is, for general purposes, tenant 
 at will to his trustee (c) ; and the object of the above pro- 
 vision seems to have been, to preserve the legal estate of 
 the trustee, which, under the old law, was secured by the 
 necessity that possession should be adverse in order to take 
 away the right of entry. However, in the case of Doe d. 
 Jacohs V. Pliillips {<!), the Court of Queen's Bench seem to 
 have considered the trustee of a term was barred by the 
 possession of his cestui que trust: the opinions expressed 
 upon this point were, however, extrajudicial; for, admitting 
 the cestui que trust to have been tenant at will, the trustee 
 before brincring the action should have determined the 
 tenancy by notice, which he had not done (e) ; but these 
 dicta in Doe v. Phillipts have not been followed (/). In a 
 recent case, where in 1771, parties under a building agree- 
 ment and a private Act of Parliament, became entitled to 
 peppercorn-leases for 99 years of a piece of reclaimed 
 land adjoining the land comprised in the original agreement, 
 and they entered and retained possession without acknow- 
 ledgment of the freeholder's title or any payment of rent 
 (the full rent mentioned in the agreement having been 
 
 (6) Doe d. Stamcay v. Roch, 4 Man. and see Youny v. Lord ^\'artaj.ai h, 
 
 & Gr. 30 ; and see Doe v. Carter, 9 10 Jur. 1, L. C. ; Cox v. Dolman, 
 
 Q. B. 863 ; Wesibrooh v. Kernel; 2 De G. M. & G. 598 ; Lord St. 
 
 2 Fos. & Finl. 59. Leonard's judgment in Scott v. Scott) 
 
 (c) See 1 Jarm. Conv. by S. 28 ; 4 H. L. C. 1085 ; Lord Mansfield v. 
 
 Sug. 480. Ojle, 1 Jur. N. S. 414 ; 7 De G. M. 
 
 {d) 10 Q. B. 130. & G. 181 ; and Drummond v. Sant, 
 
 (e) As to what conduct amounts L. K. G Q. B. 763. Executory trust, 
 
 to an admission of a subsisting te- held not within the section : Stewart 
 
 nancy at -vv-ill, see Doe v. Groves, 10 v. 3Ic(rquis of Conyngham, 1 Ir 
 
 Q. B. 486. Ch. E. 534, 553. 
 
 (/) Garrard v. Tad; 8 C. B. 231 :
 
 THE ABSTRACT. 385 
 
 reserved upon leases of the lands therein comprised), it was Chap. Yiir. 
 
 held that their possession had been merely that of cestuis ' 
 
 que tritst ; and tliat they were bound, on tlie expiration of 
 the tei'm, to give up the reclaimed land as well as the other 
 land (,7). It lias, however, been held, that where land is 
 vested in trustees in fee, in trust for A. for life, with re- 
 mainders over, and A. having never been in the actual 
 personal occupancy of the land, allows B. to occupy for 
 twenty years, without payment of rent, or acknowledg- 
 ment of title, B. thereby accpures a valid title to the fee- 
 simple (Ji) : — a doctrine, the practical importance of which 
 can scarcely l)e over-estimated. A Court of Equity, how- 
 ever, will presume tliat a father entering on the estates of 
 his infant children, so entered as their natural guardian, and 
 not tortiously, unless the contrary be clearly shown ; and 
 will treat the case as that of a trustee (/). So, the entry by 
 an uncle (the nearest male relative) upon lands of his infant 
 niece, was not considered to be an entry by a stranger (k). 
 Where the tenancy determined before the passing of the 
 Act, the right of entry is to be considered as having accrued 
 at the time of such determination (/) ; but, where the tenancy 
 was subsisting when the Act came into operation, the right 
 is barred by the lapse of twenty years from the end of one 
 year after the commencement of the tenancy (ut). 
 
 The right of a person entitled subject to a tenancy from Tenancy 
 
 from 
 year. 
 
 year to year or other period, without any lease in wanting (n), "^"^^ ^^ 
 is to be deemed to have accrued at the end of the first year 
 
 (r/) Driimmond v. Sunt, L. K. 6 Q. what amounts to a determination of 
 
 B. 763, 766. a tenancy at will, see Doc v. Turner^ 
 
 (h) MeUinrj v. Leal, 16 C. B. 652. 7 M. & \V. 226 ; S. C, 9 M. & VV. 
 
 (i) Thomas v. Tlinmas, 1 .Jur. N. S. 643 ; Doe v. Carter, 9 Q. B. 863 ; 
 
 1163 • 2 K. & J. 79. Randall v. Stevens, 2 El. & B. 641. 
 
 (1-) Pdhj V. Basromh, 9 Jur. N. S. (m) Doe v. Moore, 9 q. B. 555 ; Doe 
 
 1120 ; affirmed, 11 Jur. N. S. 52, but v. Carter, 9 Q. B. 863 ; Doe v. £>jre, 
 
 Turner, L. J., declined to expre.ss any 17 (J. B. 366 ; see Randall v. Stevens, 
 
 opinion. 2E1. &B. 641. 
 
 {I) Doe V. Thompson, 6 Ad. & E. («) Which must be an instrument 
 
 721 ; Doe V. P(i()e, 5 Q. B. 767 ; passing an interest, Doc v. Gower, 16 
 
 Doe V. Bold, 11 Q. E. 127 ; as to Jur. 100, <J. B. ; 17 (}. B. 589. 
 
 vor,. T, 
 
 c c
 
 SSI) 
 
 THE AllSTllACT. 
 
 Chap. VIII. or other period, or last receipt of rent, which shall last 
 
 __^*:':*;_^ happen {<>). It has been held, that the performance of a 
 
 service for which distress might have been made, e.y., sweep- 
 ing the church and tolling the ])ell, amounts to payment of 
 rent within the meaning of this section (p). 
 
 Eight of 
 action saved 
 by acknow- 
 lodgmcnt of 
 title ; 
 
 The acknowledgment in writing of title, given to the 
 person entitled or his agent by the person in the actual 
 possession or receipt of the profits of the land or receipt of 
 the rent, is equivalent to such possession or receipt by the 
 person so entitled (q) : and time is constantly running from 
 the last acknowledgment (r). 
 
 What is a 
 sufficient 
 acknowledg- 
 ment under 
 the 14th sec- 
 tion. 
 
 Whether a particular writing amounts to a sufficient 
 acknowledgment of title within the 14th section, is a ques- 
 tion for the CVjurt, and not for a jury to decide (.s) : an 
 acknowledgment may of course be made out from letters (/). 
 If contained in a deed, it speaks, not from its date, but from 
 the time of execution (u). An answer in a Chancery suit, 
 though made under compulsion, is a sufficient acknowledg- 
 ment (x). In a recent case (y), a question seems to have 
 been raised whether an inscription on a stone let into a wall, 
 stating by whom it was built and to whom it belonged, was 
 or was not an acknovvdedgment within the Act ; but the 
 Court of Appeal held that while the inscription remained on 
 the wall, no question of the Statute, or of adverse possession, 
 could properly arise. 
 
 (o) Sect. 8. 
 
 (p) Doe V. Bcnham, 7 Q. 13. 976 ; 
 as to the 8th section being retrospec- 
 tive, see Doc v. Sumner, 11 M. & W. 
 39. 
 
 (rj) Sect. 14. 
 
 (r) BurrowjhsY.M'Crehjld, 1 .T.& L. 
 290, 304. 
 
 (s) Doe V. L'dmomls; C> M. & W. 
 295 ; Morrell v. Frith, 3 M. & W. 
 402 ; Sidwell v. Mason, 3 Jur. N. S. 
 G49. 
 
 (t) Incorporated Soc. v. Ricliards, 1 
 Dm. & W. 290 J Fursdon v. C'io'jj, 
 
 10 M. & W. 572 ; Lord St. John v. 
 Bou'jhton, 9 Sim. 219. 
 
 (») Jayncs v. IIufjhcs,l6 C. B. 430 ; 
 Lewis V. Thomas, 3 Ha. 34, 
 
 (x) Goode V. Job, 5 Jur, N, S. 145 ; 
 Moodie V. Bannister, ib. 402 ; and see 
 as to what is a sufficient acknowledg- 
 ment cases cided above ; and Trulock 
 V. Ilobei/, 12 Sim, 402 ; Holland v. 
 Clarl; 1 Y, & C.C. C. 151 ; C'aidei/ v, 
 Fin-ncll, 12C.B, 291 ; Smith v. Thorne^ 
 
 (y) I'liilUpson 
 Ch. Ap. 428, 
 
 V. hthbon, L. K. o
 
 THE ABSTRACT. o87 
 
 Under this section (z), the ackno-wledgment must lie Chap. VIII. 
 
 signed by the party in possession ; and the signature of an . 
 
 agent is not sufficient, as in tlie cases provided for by the ?^jj.^^^jj"i"j*l^'^ 
 40th and 42nd sections. As between landlord and tenant, ment must be 
 
 . signed under 
 
 the receipt of rent is equivalent to the receipt of the profits this section. 
 
 of the land (a) ; but the performance of a service for Avhich 
 
 no distress can be made, e.g., keeping up a grindstone on 
 
 the land for the use of the parties 1 jeneficially interested (h), 
 
 does not prevent the Statute from running in favour of the 
 
 occupiers. 
 
 The possession, &c., of one coparcener, joint tenant, or Possession of 
 
 • 1 1 ii • "^® joint 
 
 tenant m common, is not to be considered as the pos-session, ovvner does 
 
 &c., of any other {<■) ; nor is the possession, Szc, of the ^^.i^.^^^^l^ 
 
 younger brother, or other relation of an heir, to l)e con- another. 
 sidered the possession, &c., of such heir ((?). 
 
 The i-ight of a remainderman, reversioner, or executory Estates in 
 
 , . . ^ remainder, 
 
 devisee (e), accrues when his estate falls into possession (/) : &c.— when 
 and this, although he may have waived a previous for- ^.^^^^ a^a^nst. 
 feiturc (,7), and although, in the case of a reversioner, he, or 
 the person through wliom he claims, may have been in pos- 
 session previously to the creation of the particular estate (A) : 
 but where the same person who is entitled to the particular 
 estate is also entitled to the immediate beneficial reversion, 
 time will run against both estates even although there may 
 be no merger (/). Where rent amounting to 2<),s\ ^)cr annum 
 
 {z) Compare sect. 28, where the 5GG ; Doc v. Woodroffc 2 H. L. C. 
 
 acknowledgment must be signed by 811, 833. 
 
 the mortgagee himself, or the person (</) Sect. 13, 
 
 claiming through him. (,) See James v. Sailer, 3 Bing. 
 
 (rt,)Sect. 35. N. C. 544, 554. 
 
 (6) Doe d. Robinson v. Hinde, 2 M. (y) Sect. 3 : see Doc v. Edmonds, G 
 
 & R. 441 ; Doe v. Bcnham, 7 Q. B. ]\i. & w. 295; Duke of Leeds v. L'arl 
 
 976, 978. Amherst, 2 Ph. 125. 
 
 {(■) Sect.l2: BurrowjhsY. M'CrciijU, {,j) Sect. 4. 
 
 1 J. & L. 290 ; this clause is retro- (/,) Sect. 5 ; and see Doe v. Ed- 
 
 spective : see Culley v. Doe d. Tayler- moncls, 6 M. & W. 295. 
 
 son, 3 Per. & D. 239 ; 11 Ad. & E. (/) Doe v. Mouhdale, IG M. & \V. 
 
 1008 ; Doc V, llnrrods, 1 C. & K. G89. 
 
 cc 2
 
 388 
 
 THE AliSTRACT. 
 
 Chap. VIII. or upwards, reserved b}^ a lease in writing, is received by a 
 ^'^^^' ^' wrongful claimant, no fresh right accrues to the reversioner 
 upon the determination of the lease (/.•) ; and the title to the 
 reversion is in effect transferred to the wrongful recipient of 
 the rent : but, in order to bar the rightful reversioner, there 
 must be actual receipt of the rent by a Avrongful claimant ; 
 its mere retention by the tenant is immaterial (?). The 
 existence of a lease containing general words sufficient to 
 comprise the property in question, but which was not 
 intended to comprise it, and has not been acted on as 
 respects such property, would not, it appears, prevent the 
 Statute from running (m) : and where the right of a person 
 to an estate in possession is barred, the right of such person, 
 and of all parties claiming under him, to any future estate, 
 is also barred, unless the land or rent is in the meantime 
 recovered by some person claiming in right of some inter- 
 vening estate (7;). Where there was a limitation to husband 
 and wife for their joint lives, with remainder to the heirs of 
 the husband, who became bankrupt, the last limitation was 
 held to be a future estate within the meaning of this section: 
 and tlie possession of the land by the surviving wife, although 
 taken without legal proceedings, saved the right of the 
 assignee of the husband (o). 
 
 barred. 
 
 Married When a married woman and her husband join in a con- 
 
 woman, when vevance of her estate by an assurance which, for want of a 
 fine or statutory acknowledgment, is not binding on her, 
 time will begin to run against her and her heirs oiily ft-om 
 the death of the husband, (if tenant by the curtesj^ ;) or 
 from her death in liis lifetime (if they have no inheritable 
 
 {L-) Sect. 9: this provision is retro- 
 spective ; see Doe v. AnrjeV, 9 Q. B. 
 328 ; see this case, also, p. 355, as to 
 the construction of the word " rent " 
 throughout the 9th .sect. ; and see 
 Grant v. Ellis, 9 M. & W. 113. 
 
 (I) Doe V. Oxenham, 7 M. & W. 131 ; 
 CJiadivich V. Broachcood, 3 Beav. 308 ; 
 see, however. Ex p(ni( Jone.-<,-iY.SiC\ 
 
 466 ; as to rents of mines reserved in 
 S2iecie, see Deni/s v. Shiicl:hur[j7i, 4Y. & 
 C. 42. 
 
 (m) See Dean and Cluiptcr of Ehj v. 
 Bliss, 5 Beav. 574. 
 
 (;;) Sect. 20 ; and see Doe v. Monh- 
 dale, 16 M. & W. 689—698. 
 
 (';) Doc V. Liver scdjc, 11 M. & W. 
 517,
 
 THE ABSTRACT. 389 
 
 issue (2') '■) ^J^^t where there is no conveyance binding on the Chap. Viii. 
 husband, but a mere abandonment of possession ]>y husband 
 and wife, it has been held that time will run against her 
 from the date of such abandonment (q). 
 
 By the 21st section it is enacted, " That when the right of Remainders 
 
 •' expectant 
 
 a tenant in tail of any land or rent to make an entry or on an estate 
 distress, or to bring an action to recover the same, shall tarred when 
 have been barred by reason of the same not having been ^J^^^^^^*^^^ '^ 
 made or brought within the period hereinbefore limited, 
 which shall be applicable in such case, no such entry, dis- 
 tress, or action shall be made or brought Ijy any person 
 claiming any estate, interest, or right wdiich such tenant in 
 tail might lawfully have barred " (r) : and the 22nd section, Time runs 
 
 *= "^ . agamst the 
 
 in effect, provides that time which has commenced runnnig estate tail 
 
 against a deceased tenant in tail, shall be counted as against ^aindeJf' 
 persons claiming in respect of any estate, kc, which he 
 "might lawfully have barred." These sections are retro- 
 spective: and when time has begun to run against the 
 tenant in tail, the remainderman has no extended time 
 allowed by reason of his being under disability, wdien his 
 estate falls into possession (s). But when the tenant in tail, 
 instead of being dispossessed, or allowing another person to 
 usurp possession, purports to convey the estate by an 
 assurance, which, although voidable by the issue in tail, is 
 binding on himself personally during his life, the issue has 
 the full statutory period from his death in which to claim 
 the estate (f). 
 
 (p) JumpHcn V. Pitchers, 13 Sim. possession, whether adverse or not, to 
 
 327 ; see Sug. 483 ; Xccsom v. Clark- be protected ; M'DonneU v. M'Kinty, 
 
 son, 2 Ha. 163. 10 Ir. L. R. 514, 5'26 ; Smith v. Lloi/d, 
 
 (q) Doc V. Bramston, 3 Ad. & E. 9 Exch. 572 : and see Kcyse v. Poicell, 
 
 63. It has been held in Irelan.l that 2 El. & B. 132 ; Totteuham v. Ihjrnc, 
 
 the mere omission to work unopened 12 Ir. C. L. Eep. 376, Sugd. Stat. 33. 
 
 mines or quarries reserved to the (r) See ^Ihs^/zi v. /.Zcue////", 9 Exch. 
 
 grantor of the surface, is not an 276. 
 
 abandonment of possession ; and that, (.s) Goodall v. Skcrratt, 3 Dre. 216. 
 
 in order that the statutj may operate, (0 Cannon v. Riminfjton, 1 2 C. B. 1 ; 
 
 there must be both dereliction by the but see report of doodaU v. Skcrratt, 
 
 person who has the right and actual in 1 .Jur. X. S. .■>7.
 
 890 
 
 THE ABSTPiACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 Ent tenant in 
 tail must 
 have been ,sui 
 JKris, scmble. 
 
 The expression in each of these two sections " might law- 
 fully have barred," seems to require personal legal capacity 
 on the part of the tenant in tail to bar the remainders : 
 from which this singular result would seem to follow ; viz., 
 suppose the yght of a tenant in tail to accrue in possession 
 when he is one 3'ear old, and that he attains twenty-one, 
 and dies the next day under no personal incapacity, the 
 Statute would run against remaindermen as from the time 
 w^hen his right first accrued : but suppose him to die just 
 before attaining twenty-one, or to attain twenty-one an 
 idiot or lunatic, and so to continue until his death, in such a 
 case it would seem that remaindermen would be in no way 
 affected by the above sections of the Act. This construction, 
 if it be a correct one, must, in many cases wdiere land has 
 been brought into settlement, materially interefere with the 
 beneficial operation of the Statute upon titles. 
 
 Base fee — 
 when to 
 become a fee 
 simple. 
 
 The 23rd section has been a good deal discussed in the 
 profession. According to Lord St. Leonards its effect is, 
 " that where a tenant in tail executes a deed em-olled under 
 the 3 & 4- Will. IV. c. 74-, which for want of the consent of 
 the protector, operates only to create a base fee, under w^hich 
 possession is obtained, the title will become good against 
 those in remainder at the end of twenty years from the 
 period when the tenant in tail, or his issue, could, without 
 the consent of any third person, have baiTed the remainders 
 over under the 3 & 4 Will. IV. c. 74 ; but this operation will 
 not be effected, if the assurance already executed would 
 not, if then executed without consent, have operated to bar 
 the estates in remainder" (u.). It Avould seem that the 
 section, wdiich applies only to assurances which are effectual 
 to bar the entail (x), has not a retrospective operation (y). 
 
 Here it may be observed, the same question arises as to 
 the necessity for personal legal capacity on the part of the 
 
 («) Sug. pp. 483, 484. 
 (x) Moryan v. Murj'Ui, L. 
 10 E(i. 99. 
 
 {>/) See Penny v. Allen, 7 De G. 
 U. M. & G. 409 ; and 1 Jarm. Conv. by 
 S 02.
 
 THE ABSTRACT. 391 
 
 tenant in tail or his issue to execute a disentailing con- Chap. vili. 
 veyance, as well as the non-existence of a proteet(jr, at the '. '. 
 
 time when the Statute is to begin to run. 
 
 And in the opinion of Lord St. Leonards liase fees which 
 were created before the passing of the 3 & 4 Will. IV. c. 27, 
 are, as a general rule, rendered unassailable by the 3Gtli 
 section of the Act (z). 
 
 The right of a mortgagor to redeem (a), is to be barred Equity of 
 
 redemption, 
 
 at the end of twenty years from the mortgagee takmg when to be 
 possession, or last giving a written acknowledgment of title. 
 The acknowledo-ment must be given to the mortgagor or Acknowledg- 
 some person claiming his estate, or to the agent of such 
 mortgagor or person ; and the section has been held to be 
 retrospective ; so that where, before the Act, a mortgage 
 had been twice transferred, as such, by deeds to which the 
 mortgagor was no party, and no acknowledgment of the 
 e<|uity of redemption had been given to him for seventeen 
 years before the passing of the Act, these years were counted 
 against him upon his subsequently filing a bill to redeem (h). 
 An acknowledgment given to one of several mortgagors, or 
 representatives of a mortgagor, operates in favour of all ; 
 but an acknowledgment by one of several mortgagees, or 
 representatives of a mortgagee, does not affect the pro- 
 portionate interests of the others (e). If a mortgagee while if mortgagee 
 in possession is himself entitled to such possession in respect possession, 'as 
 
 of a life or other limited interest in, or as a tenant in being inte- 
 rested in 
 common of, the equity of redemption, the period for which equity of re- 
 he is so entitled will not be counted against the parties time does uot 
 entitled in remainder, or together with him, to the e<iuity of ''"°- 
 redenq^tion (d). 
 
 (z) Sug. 434. {') Sect. 28 ; and see Jilchanlson v. 
 
 (a) See sect. 28; Broime v. Jilnhop Vonnrjc, L. 11. 10 Eq. 27.'). 
 of Cork, 1 Dm. & Wal. 700. {p) RaffvHy v. Kin>j, 1 Ke. 601 ; 
 
 (6 Batrhdor v. Mkldletoii, 6 Ha. Tall v. Owen, 4 Y. & C. 201 ; Hyde 
 
 75. Compare Forsyth v. BrUtowe, v. DaU/ivxiy, 2 Ha. 528 ; ll'^nne v, 
 
 8 Ex, 716, a case under the 40th fityun, 2 Ph. 30-3 ; Browne v. Bhh.op 
 
 section. of Cork, \ Dru. & Wal. 714.
 
 332 
 
 THE AUSTPvACT. 
 
 Chap. VIII. 
 KSect. 6. 
 
 Extinguished 
 right to re- 
 deem may be 
 revived by 
 acknowledg- 
 ment. 
 
 The mortgagor's title to redeem, though bound, and, under 
 the 34th section of the Act, "extinguished," by twenty 
 years' adverse possession by the mortgagee, may be revived 
 by a subsequent acknowledgment (e). This decision, although 
 affirmed by the Lords Justices, cannot without difficulty, if 
 at all, be reconciled with the language of the 84th section ; 
 but the point can now be otherwise settled only by the final 
 Court of Appeal. Where a mortgagee in fee, having been 
 in possession for more than twenty years, devised the 
 estate to his son in tail with limitations over, it was held 
 that an acknowledgment by the tenant in tail of the mort- 
 gagor's title revived the right to redeem, so as to bind the 
 remaindermen (/). Such an acknowledgment by a tenant 
 for life would, however, it is conceived, bind only him- 
 self A transfer of a mortgage, though expressly made 
 subject to the mortgagor's equity of redemption, but to 
 which the mortgagor is not a part}^ is not a sufficient 
 acknowledgment ((j). A formal acknowledgment of course 
 is not necessary, if the effect of the admission is that the 
 person making it has a redeemable estate ; thus, where a 
 mortgagee wrote to the solicitor of the mortgagor, " I do 
 not see the use of a meeting, unless some party is ready 
 with the money to pay me off," this was held sufficient (//). 
 
 Time al owed No spiritual or eleemos^'nary corporation sole is to recover 
 tiy s^Suki or ^^Y ^^^^'^^ °^' ^''^^^^^ ^->^^^ within two successive incundDencies, 
 ciecmosyjary and six years, or sixty years, (whichever be the longer 
 
 rornor.it.ion . ./ ^ ' \ o 
 
 period,) from the time when the light accrued (/). 
 
 corporation 
 sole. 
 
 (c) Stansfeld v. Hohson, IG Beav. 
 236 ; 3 De G. M. & G. 620 ; see 
 Thompson v. Boiri/cr, 9 Jur. N. S. 
 863. 
 
 (/) Pcndhlonv. liooth, 1 Giff. 35 ; 
 1 De G. F. & Jo. 81. 
 
 {[/) Lucas Y.Dcnnison, 13 Sim. 584 ; 
 and see further as to what i.s a suffi- 
 cient acknowledgment, supra, p. 386, 
 and infra, p. 397 ; J/oclle v. Ilcalei/, 
 6 Madd. 185 ; Batrliclor v. Mklilktuii, 
 
 6 Ha. 75 ; T/iompsoii v. Boicycr, 
 9 Jur. N. S. 863. See too, Greyson v. 
 Hindley, 10 Jur. 1083. 
 
 (/() Stansjield v. Hohson, 3 De'G. 
 M. & G. 620 ; and see Ilodlc v. 
 Ilcalcy, 6 Madd. 166 ; Richardson v. 
 Yoinujc, L. E. 10 Eq. 275. 
 
 (i) Sect. 29 ; Archbishop of Dublin 
 V. Lord TrimlesUm, 12 Ir. Eq. Ecp. 
 251.
 
 THE ABSTRACT. 393 
 
 No advowson is to be recovered, or right of presentation Chai). VIII. 
 
 enforced, Ijiit within three successive advense incumbencies '_! 
 
 or sixty years (whichever be the longer period), reckoning ^f^aavows^lif 
 
 therein incumbencies by lapse but not incumbencies after °^ "o''* "^ 
 
 presentation. 
 
 promotions to bishoprics (A;) ; and a patron claiming in respect 
 of an estate in remainder on an estate tail, is, for the purposes 
 of the statutory bar, to be considered as claiming through 
 the person entitled to such estate tail (I). Successive adverse 
 incumbencies extending over one hundred years form an 
 absolute bar, unless the benefice has been since enjoyed 
 under a lightful presentation ; and in calculating this period, 
 a presentation adverse to the ovv^ner of a particular estate is 
 considered adverse to remaindermen (m). 
 
 No money charged upon or payable out of any land or For recovery 
 rent, nor any legacy, is to be recovered but within twenty chartreci^n 
 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 there has been some in- 
 termediate payment in respect of principal or interest, or 
 acknowledgment of right given in writing : in which case 
 the twenty years are to iim from the date of such payment 
 or acknowledgment (n). 
 
 From the above period must be excluded the time (if any) Time to be 
 during which the person entitled to the charge has been also 
 entitled to the possession of the land or rent ; or during which 
 the rents of the estate charged have been exhausted by prior 
 incumbrancers (o) : and where a term was vested in trustees, 
 in trust to raise portions for younger children, and, subject 
 thereto, the estate was limited in strict settlement, it was 
 held by Lord Lyndhurst, C, that the possession of the estate 
 by the parties in reversion was consistent with the trust, 
 and that the statutory bar did not apply (j)). So also, in the 
 
 {k) Sects. 30 & 31 ; see Robinson (m) Sect. 33. 
 
 V. Marquis of Bristol, 20 L. J. 208, (>OSect. 40. 
 
 C. B. ; 15 Jiir. 926 ; see as to Ireland, (o) Knijlit \. Bowi/cr, 23 Beav. 
 
 G & 7 Vict. c. 5i, and 7 & 8 Vict. c. G35. 
 
 27. ii') Yoan'j v. Lord Watcrpark, 13 
 
 (/) Sect. 32. Sim. 201 ; 6'. Con appeal, 10 Jm-. 1.
 
 394 
 
 THE ABSTRACT. 
 
 Chap. VIII. 
 
 Sect. 6. 
 
 What cases 
 fall within the 
 40th section. 
 
 case of a term in trust to raise annuities (q) : so, where an 
 outstanding term is assigned in trust for a mortgagee (r) : 
 so, legatees, whose legacies are charged on land, are not to 
 be affected hy lapse of time, while any prior charge is sub- 
 sisting (s) : so, where a legacy given upon certain trusts has 
 been severed from the general estate, time does not run 
 against the legatee under this section ; although the fund 
 may remain in the hands of the executor (t) : so, where a 
 trust fund was inadvertently paid by the trustee to a person 
 not entitled to it, the Statute was held to be no bar to the 
 rightful claimant (u) : so, where a mortgagee is also tenant 
 for life of the mortgaged estate, time does not run against 
 the mortgage title until his death (x) : and the same rule 
 applies wdiere he is tenant in common with others of the 
 mortgaged estate (y). 
 
 The 40th section has reference not to the land itself, but to 
 actions for the recovery of money, as, e.g., a mortgage debt 
 secured by covenant, or collateral bond (s) ; and a judgment 
 debt is " money payable out of land " within the meaning of 
 the section (a) : so, also, a vendor's lien for unpaid purchase- 
 money (6) ; but whether the produce of real estate directed 
 to be sold is " money payable out of land," has been 
 doubted (c). Money due on a Ijond executed by an an- 
 
 (q) Coxy. Dolman, 2 De G. M. & 
 G. 592: and see Pdrc v. Pdrc, 1 Drc. 
 396; Scott V. Scott, 18 Jur. 755, H. 
 L. ; Low V. XasJi, 23 L. T. 223 ; Snoiv 
 V. Booth,2Ka.y & J. 132 ; S Do G. 
 M. & G. 89; Lci'-is v. Diui:omlc, 7 
 Jur. N. S. 695. 
 
 (?•) Shaw V. Johnson, 7 Jur. N. S. 
 1005 ; and see 0' Haras Tontine, 6 
 W. R. 45; and siq^rd as to express 
 trusts. 
 
 (s) Faulkner v. Daniel, 3 Ha. 212. 
 
 (<) Phillipo V. Munninfjs, 2 ily. & 
 Or. 309 ; Itoch v. Cullen, 6 Ha. 536 ; 
 Dillon V. Cruise, 3 Ir. Eq. R. 70 ; 
 Downes v. BuUoch, 25 Beav. 54 ; 9 H. 
 L. Ca. 1. 
 
 («) Harris v. Harris, 29 Beav. 110. 
 
 (x) Spickerndl v. Hotham, Kay, 669. 
 
 (7/) Wi/nne v. Sl)/nn, 2 Phill. 303 ; 
 and vide snjmt, p. 391. 
 
 (z) Doe V. Williams, 5 Ad. & Ell. 
 296 ; Shepparcl v. DuJce, 9 Sim. 567. 
 
 (a) Henri/ v. Smith, 2 Dru. & W. 
 381 ; Berrinfjton v. Etans, 1 Y. & C. 
 434 ; Watson v. Birch, 15 Sim. 523 ; 
 11 Jur. 198. 
 
 (6) Toft V. Stephenson, 7 Ha. 1 ; 1 
 De G. M. & G. 28 ; 5 De G. M. & G. 
 735. 
 
 (c) Paicsey v. Barnes, 20 L. J. Ch. 
 393, V.-C. K. B. ; 15 Jur. 943 ; but 
 see Bowijer v. Woodman, L. R. 3 Eq. 
 313, where tlie produce of real es- 
 tate dii-ected to be sold was hekl to 
 be money payable out of land within 
 the 42ud section ; Pav:se>j v. Barnes 
 docs not appear to have been cited.
 
 THE ABSTllACT. 305 
 
 cestor {<!), and tunipike tolls (r), do not lall undur the Act: Chap. Vlll. 
 but the section apjDlies to any legacy, whether payable out ^^"*'' ^' 
 of real or personal estate (/') ; and a share of residue is a 
 " legacy " within the section {<j). By the 23 and 24 Vict, 
 c. 3<S (A), the operation of this section is extended to claims 
 upon the personal estates of intestates. 
 
 Whether a foreclosure suit be a suit for the recovery of What suits 
 " money charged upon land," within the 40th section, or for rbeZch'"'''^ 
 the recovery of land within tlie 24th section, seems to be Xct''' *^^ 
 doubtful (/) : a vendor's suit for the recovery of his unpaid 
 purchase-money has been held to be within the 40tli sec- 
 tion {h) : but a suit for the recovery of a legacy held on 
 certain trusts, which has been severed from the general estate, 
 although retained by the executor, is a suit for the adminis- 
 tration of tlic trust fund, and this section affords no statutory 
 bar (/). And it seems probable that the statutory bar does 
 not apply, where the Ijill was filed before, though no decree 
 was made until after, the passing of the Act (in). 
 
 Payment hy any person authorized to make it, but not by What is 
 a mere stranger, is sufficient to bring the case within this '^Sr"* ^"'^' 
 section (n) : so is payment Ijy the parties claiming the land. 
 
 And compare Mutloic v. Bigff, L. E. Sinrhu'i- v. Jadson, 17 Beav. 410 ; d 
 
 18 Eq. 246, where a devise of laud contra, WrixonY. F/rc, 2 C. & L. 138 ; 
 
 in trust for sale with a direction that -S". (,'., 2 Dru. & W. 192 ; 3 Dru. & W. 
 
 the proceeds were to be considered 104 ; Sug. on Stat. 117. 
 
 personalty, was held to be an express {k) Toft v. Stephenson, Tili\.. 1 ; 1 Do 
 
 trust of land within sect. 2.5 : and G. M. & G. 28 ; 5 De G. M. & G. 
 
 vide supra. 735. 
 
 {d) Roddam v. Morlcy, 1 De G. & (/) Ph'dlipo v. Munnuujs, 2 My. & 
 
 J- 1- Cr. 309 ; Doivnes v. Bullock, 25 Beav. 
 
 (c) McllUh V. Brooks, 3 Beav. 22 ; 54 ; 9 H. L. Ca. 1 ; Ilarcourt v. 
 
 alltcr as to (|uarries, &c. ; M'Donndl White, 28 Beav. 303 ; see and con- 
 
 V. M'Kititij, 10 Ir. L. 11.521. sider Edmunds v. Waui/h, L. R. 1 Eq. 
 
 (/) Sheppard v. Duke, 6 Sim, 567. 418 ; and Ti/son v. Jackson, 30 Bear. 
 
 {<j) Christian v. Jkrcrcvx, 12 Sim. 384, where the executor constituted 
 
 264 ; Shei>pard v. Bake, 6 Sim. 567 ; himself an express trustee of the 
 
 Prior V. Horniblow, 2 Y. & C. 200. legacy. 
 
 (/*) See sect. 13. (m) Ravcnscroft v. Frishj, 1 Coll. 16, 
 
 {i) Sec Bcarman v. Wyche,^ Sim. {n) Iloman v. Andrews, 1 Ir. Ch. 
 
 570 ; Ba Yiyier v. Lee, 2 Ha. 334 ; l?ep. 106.
 
 39G 
 
 THE ABSinACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 or tlieir trustees (o) : Lut there must bo a proper hand to 
 receive, and give a discharge for the money paid {p) ; and 
 where the person Hable to pay is also the person entitled to 
 receive, no question of limitation under the Statute can 
 arise {q). Payment of interest by a devisee for life on his 
 testator's specialty debt is sufficient as against the remain- 
 derman (r) : so, payment of interest on an Irish mortgage 
 made by a receiver of the mortgaged estates, appointed 
 under the Irish Mortgage Act, 11 iS: 12 Geo. III., c. 10, has 
 been held to be payment by an agent within this section (<s) ; 
 so, also, payment of interest by a dowress in possession of 
 the mortgaged estate, with the consent of the heir of the 
 mortgagor (f). It would seem that, in order to constitute a 
 sufficient payment, it is not essential that money should 
 actually pass between the parties ; thus, where a debtor put 
 his hand into his pocket, as if for the purpose of paying the 
 interest due, and the creditor anticipated actual payment by 
 handing him a written receijDt for it, this was held to be a 
 sufficient pa3nnent [ii) : but where A. being indebted to B. 
 on three se^•eral debts, two of which Avere barred by the 
 Statute, made a payment of interest at B.'s request, without 
 referring to any of the debts, the payment was treated as 
 exclusively made in respect of the unbarred debt ; and not 
 
 (o) Toft V. Stephenson, 1 Dc G. 31. & 
 G. 40 ; 5 De G. M, & G 735. 
 
 ip) McCarthy v. Daunt, 11 Ir. Ecj. 
 Rep. 29 ; and see as to payment by a 
 person filling a double character, 
 Fordkcnnv. WalUs, 10 Ha. -217. 
 
 (q) Binns v. Nicholls, L. E. 2 Eq. 
 256 ; Secujram v. Knhjht, L. R. 2 Ch. 
 Ap. 628, 
 
 (»•) Roddam v. Morlci/, 1 De G. & 
 Jo. 1, overruling V.-C. W. 2 K. & Jo. 
 336 ; see C'oo^jc v. CresswcV, L. E. 
 2 Ch. Ap. 112, 126 ; in which the 
 ultimate decision in Roddam v. Mor- 
 ley, was questioned by Lord Chelms- 
 ford, C, but in Pears v. Lahnj, L. E. 
 12 Eq. 41, it was expressly approved 
 and followed, notwithstanding tke 
 adverse comments upon it in C'cio/(C v. 
 CressweV, and must now the regarded 
 
 as well settled law. In Dickinson v. 
 Tcasclale, 31 Beav, 511 ; 1 De G. J. 
 & S. 52, acknowledgment by one of 
 several devisees subject to a charge 
 was held sufficient to bind the others ; 
 but in Rithardson r. Youn'je, L. Ii. 
 6 Ch. Ap. 47S, affirming Y. C. M. 
 L. E. 10 Eq. 275, acknowledgment by 
 one of two mortgagees, who on the 
 face of the deed appeared to be trus- 
 tees of the mortgage debt was held 
 insufficient to keep alive the right of 
 redemption ; and ride sujjrd, p. 391. 
 
 (a) Cliinncry y. Evans, 11 H. L. Ca. 
 115. 
 
 {t) Ames V. Mannerinr/, 26 Beav. 
 583. 
 
 (u) Maher v. Mahtr, L. E. 2 Ex. 
 153, dissenticute Bramwell, B.
 
 THE AHSTRACT. ^••T 
 
 as an acknowledo-ment of the debts Avhich wcro already Chap. VIII. 
 
 ° Sect. 6. 
 
 barred (:«). 
 
 The acknowledo-ment referred to in the 4()th and 42nd Acknowledg- 
 
 o _ ment — what 
 
 sections, must be in ^vriting; but may be signed by the insufficient 
 agent of the person giving it (?/) : and the Courts, in deter- iJ'&M'' '' 
 minino- what is a sufficient acknowledgment under these 
 sections, have adopted a liberal construction of the language 
 of the Act (5) : thus, an afhdavit, or answer, though made 
 under compulsion, may be a sufficient acknowledgment of a 
 debt or claim (</) : but not the report of the Master under 
 the former practice, nor, it is conceived, the Chief Clerk's 
 certificate under the present practice in a suit (!>). An ad- 
 mission in the will of the del)tor of the existence of a judg- 
 ment debt has been held a sufficient acknowledgment (r); 
 so, any admission in writing by the debtor, of the existence 
 of an unsettled account, either with or without a promise 
 to pay the balance (if any) due, will prevent the Statute 
 running (c7) ; so, also, his written promise to pay so soon as 
 he is able (c) : so, a letter by the solicitor of the purchaser's 
 devisees to the solicitor of the vendor's assignees that the 
 purchase-money was lying idle, was held to be a sufficient 
 acknowledgment of the existence of the vendor's lien (/) : 
 but where there is no absolute admission that anything is 
 due, but simply an agreement to refer a disputed account to 
 arbitration, and no award is made, there is no sufficient 
 acknowledgment to take the case out of the Statute (r/). So, 
 
 (x) Nash V. Iloihjson, Kay, G50 ; (i Barroivcs v. Oorc, 6 H. L. Ca. 909. 
 
 De G. M. & G. 474 ; but quare if the {h) 11 ill v.StaweU, 2 Jebb& S. 389. 
 
 interest paid had been more than was (f) MilUnfjUm v. Thompson, 3 Ir. 
 
 due on the unbarred debt, woukl not Ch. 11. 236. 
 
 the payment have been an acknow- (d) Prance v. Si/mj^son, Kay, 678 ; 
 
 ledgment of the other debts ? See also re River Steamer Co., MitcheWs claim, 
 
 Spichernell v. Ilotham, Kay, 669. L. E, 6 Ch., Ap. 822. 
 
 (.y) Alitcr under sects. 1 1 k 28, (c) Jfammond v. Smith, 33 Beav. 
 
 vide siijvd, p. 386. 452. 
 
 (2) See Blair v. Nngcitt, 3 Jones & (/) Toft v. Stcjihenson, 1 De G. 
 
 L 573 M & G. 28 ; and see -S'. C, 5 De G. 
 
 A - (a) Goode v. Job, 5 Jur. N. S. 145 ; M. & G. 935. 
 
 '^^^Mmm-v. Bannister, ih. 402; Tristram ('j) Hales v. Stevenson, 9 Jur. N. S. 
 
 V. Ilartc, 1 Longfield & T. 186 ; and 300 ; but see Chcshjn v. Dalhy, 4 
 
 .see also Vincent v. Willinr/lon, ib. 456; Y. & C. 238.
 
 398 
 
 THE AISSTKACT. 
 
 Chap. VIII. 
 Sect. 6. 
 
 a letter admitting the existence of the debt, but stating the 
 debtor's inability to pa}^ in full, and proposing a composition, 
 has been held insufficient (//) ; so, also, a letter by the debtor 
 disclaiming an intention to avail himself of the Statute, but 
 professing his inability to pay, and soliciting further indul- 
 gence (f). Where money was lent to a trader to accumulate 
 for the creditor's benefit at compound interest, it was held 
 that the Statute began to run at the date of the advance ; 
 and that periodical entries in the debtor's books, carrying- 
 over interest to the creditor's account, did not take the case 
 out of the Statute (/). 
 
 Arrear.s of 
 dower. 
 
 No arrears of dower arc to be recoverable for more than 
 six years (I) ; and no exception is made of cases where an 
 acknowledgment of title has been s-iven. 
 
 Arrears of 
 rent. 
 
 No arrears of rent (tn) (which includes a fee-farm rent («),) 
 and tithe rent-charge (o), or of interest in respect of any sum 
 of money charged upon or payable out (^>) of any land or 
 rent, or in respect of any legac}^ are to be recoverable for 
 more than six yeai's (q) from the time when they became 
 due, or when a written acknowledgment (r) of the same 
 was last given, unless a prior incumbrancer has been in pos- 
 session within one year before the commencement of the 
 proceedings for the i-ecovery of such airears, in which 
 
 (/() Everett v. Rohinson, 4 Jur. N. S. 
 10S3 ; and cases cited. 
 
 (/) EackJuim v. Marriott, 3 Jiir. 
 N. S. 495Ex.Ch. 
 
 (l) Jackson V. 0(/f/, Johns. 970. 
 
 (^) Sect. 41 ; Bamford v. Bamford, 
 5 Ha. 203. 
 
 (m)Sect, 42. 
 
 (n) llumfrey v, (kry, 7 C. B. 5C7. 
 
 (o) Ecclesiastical Commissioners v. 
 Lord SUf/o, 5 Ir. C. E. 46. 
 
 (p) Including judgments, Henry v. 
 Smith, 2 Dm. & W. 3S1 ; and see 
 Burne v. Rohinson, 1 Dru. & Wal. 688. 
 A new right has been held in Ireland 
 to accrue on a judgment being revived 
 
 on a svi. fa. : see Re Blale, 2 Ir. Ch. 
 It. 043. A share of the ^jroceeds of 
 sale of real estate directed to be sold 
 has been held to be money payable out 
 of land within this section, Boirycr v. 
 Woodman, L. R. 3 Eq. 313, and ride 
 supra, p. 394, and cases cited in note 
 (0. 
 
 (q) Time is reckoned from the filing 
 of the bill, Chappell v. Bees, 1 De G. 
 M. & a. 393. 
 
 (/•) Eeturn in insolvent's .schedule 
 held sufficient, Barrett v. Birminyham, 
 Fl. & K. 550; but sec Holson v. Burns 
 13 Ir. L. E. 280.
 
 THE ABSTRACT. SHO 
 
 Sect. 6, 
 
 case thev may be recovered for the whole period of such Chap, vill 
 possession (k) ; that is, if the prior incmnbrance affect 
 the estate or interest upon which the subsequent incum- 
 brance is a charge {t). Whei'e thero are several incum- 
 brancers on the same land, ranking in a series one after the 
 other, payment or acknowledgment b}^ the mortgagor wdll 
 not keep alive the right of the first mortgagee to arrears 
 of interest beyond the period of six years as against the 
 subsequent mortgagees ((()• It was held by Sir J. Wigram, 
 V.-C, that if the interest on a mortgage debt is secured by 
 bond or covenant, aii'ears for twenty years can be recovered 
 as against the mortgaged estate {x) ; T)ut this decision, which 
 was opposed to the opinion of Lord St. Leonards {y), has 
 been overruled {z) ; even in a case where the mortgaged 
 estate was a reversion {a) : and it is now well settled that 
 as against the . mortgaged estate, the mortgagee can only 
 recover six yea-rs' arrears of interest, and must look to the 
 bond or covenant of the mortgagor for the recovery of any 
 further arrears (J>). This section, how^cver, does not bar the 
 right to recover arrears of any annuity, charged on a i-ever- 
 sionary interest in land, so long as the interest continues 
 reversionary (c) : nor does it, it is conceived, affect the 
 validity of a clause frequently inserted in mortgages of 
 reversions, and sometimes of other property, and wdiicli 
 provides for the capitalization of interest in the event of its 
 falling into arrear : and where the proceeds of a mortgaged 
 estate, sold under a power of sale, were paid into Court in 
 a suit for the administration of the mortgagee's estate, a 
 
 (s) Sect. 42 ; Frauds v. Orovcr, 5 (:) Jliintcr v. NocMiJs. ] Mac. & G-. 
 
 Ha, 39 ; l)ron>jld v. Jones, 2 Ir. Eq. 640, Q'>?j ; Ihimjrty v. Gery, 7 C. B. 
 
 R. 30.3. 5G7 ; Round v. Bdl, 30 Bear. 121 ; 
 
 (pj Vincent V. Go!ii[/, 1 J. & L. Shaw v. Johnson, 7 Jur. N. S. lOOa ; 
 
 697, 1 L)r. & S. 410 ; Mason v, Broadhcnt, 
 
 (w) Boldbnj V. Lane, 1 De G. J. & 33 Beav. 29G. 
 
 Sm. 122; see now 16 & 17 Vict. c. (a) Slndatr v. Jarlson, 17 Beav. 
 
 113, and 19 & 20 Vict. c. 97. 405. 
 
 (x) Du yiijkr V. Lee, 2 Ha. 320. {h) Sec Bowyer v. Woodman, \.. \l. 
 
 (ll) JIurrhfiiin v. Dut'f/nein, 2 Dm. &. 3 Eq. 313. 
 
 W. 295 ; L'tn/hes v. Kelly, 3 Dru. & (r) Wheckr v. Jfoicell, 3 K. & Jo. 
 
 W. 482 ; and see Ilod'jes v. Croydon, 198. 
 Canal Co., 3 Beav. 86.
 
 400 THE AllSTUAf'T. 
 
 Chap. VIII. petition by his representatives for the payment out of the 
 ^'^^' ' fund was held not to be a suit for the recovery of arrears of 
 interest within the 42nd section, so as to disentitle them to 
 recover arrears for nearly twenty years (d) : so, it has been 
 held that the heirs of a mortgagor, who for himself and his 
 heirs has covenanted to pay the principal and interest, 
 cannot redeem except upon payment of the arrears for 
 twenty years, the mortgagee being at liberty to tack the 
 personal liability under the covenant as against the heir ; 
 but the decision would probably be otherwise, if the suit 
 were by the mortgagor himself (e). So, rent, or a rent- 
 charge, although recoveral>le against a covenantor for twenty 
 years under 3 (&: 4 Will. IV. c. 42 (/"), is recoverable as 
 against the land only fn- six years (g) : and a legal rent- 
 charge is wholly lost by non-payment for a period exceed- 
 ing the statutory limit (h). An annuity charged on land 
 comes within the meaning of the word " rent " in the 42nd 
 section, and therefore no more than six years' arrears are 
 recoverable (i) ; but the position of the grantee of such 
 an annuity Avhich has been duly paid, where the grantor 
 has retained possession of the estate without acknowledg- 
 ment of title, for a period exceeding the statutory limit, 
 seems to be doubtful (/.). It has been held that an annuity 
 given out of personalty is not within this section ; for 
 though it is a legacy, yet the yearly payments made in 
 respect of it cannot be treated as " interest in respect of a 
 leo-acy " (/). In the case of a legacy, and of a suit to ad- 
 
 {(l) Ecbamids v. ]Va,i<jh, L. R. 1 (^O See Scarle v. Colt, 1 Y. & C. 
 
 Eq. 148 ; but see and compare Mason C. C. 3G . supra, p. 379, n. (»)• Pay- 
 
 V. Broadhent, 33 Beav. 296. ment by executors and trustees in 
 
 (e) Elvy V. Norwood, 5 De G. & S. possession has been held binding as 
 
 240 ; and see 17 Beav. 413. against the cestui que use : Francis v. 
 
 (/) See Pai/et v. Foley, 2 Eing. N. Orover, 5 Ha. 39 : and see Toft v. 
 
 C. 679 ; Sims v. Thomas, 12 Ad. & E. StepJtenson, 1 De G. M. & G. 37. 
 5ZQ ; Mannint/ v. Phelps,l() E\ch. 59. (I) In re Ashvell's Will, Johns. 
 
 (fj) 1 Mac. & G. 653. 112, where 37 years' arrears were re- 
 
 (h) James V. Salter,'^ Bing. N. C. covered against the residuary legatees. 
 
 544; Lanrjton \. Lar.'jfon, IS Jur. But ^((cf re whether such an annuity is 
 
 928 not a series of separate legacies, each 
 
 (i) Fcr'/Hson v. Liviwjstoii, 9 Ir. subject to a distinct contingency, 
 
 Eq. E. 202 ; Francis v. Grorer, 5 Ha. and as such within the 40th. sec. ; 
 
 39_ and see Rock v, Cullcn^ 6 H'a. 531,
 
 THE ABSTRACT. 
 
 401 
 
 minister the estate, the lesfatee has been lield entitled to Chap. VIII. 
 
 _ Sect. 6. 
 
 arrears of interest for six years before the date of carrying — — 
 
 in his claim before the Master (»i). 
 
 It has been decided, in Ireland, by Sugden, C, that a Purchaser 
 purchaser under a decree of the Court can be compelled to U^JJ^pf t'jtie^ 
 accept a title depending upon adverse possession, verified, 'i«p«nding on 
 like any other fact, in the Master's office (n) ; and the Limitations, 
 general principle would probably be maintained by the 
 English Courts in a suit for specific performance. Its bene- 
 ficial application, as between vendors and purchasers, is, 
 however, in the case particularly of missing instruments, 
 materially affected by the difficulty which exists of deter- 
 mining the time when the right of action may have accrued 
 to the supposed adverse claimants : for instance, where forty 
 years have elapsed since the death intestate of a former 
 owner seised in fee simple in possession, the Statute may, as 
 a general rule, be safely relied on as against the claim of 
 any latent heir ; as his right of action must ordinarily (o) 
 have accrued at the death : but if the intestacy itself be in 
 dispute, and there be reason to apprehend the existence of 
 a will whose contents are unknown, here the Statute is 
 evidently a very slight protection ; as limitations may have 
 l^een created under which a right of action may exist for an 
 indefinite period. 
 
 It sometimes happens that lapse of time increases instead Lapse of 
 of diminishing a known risk attending a title ; e.g., where sometimes 
 a settlement, by deed or will, duly executed and attested, {"ender a title 
 has created limitations in remainder, some of which are still 
 subsisting, or capable of taking efiect, and the invalidity of 
 
 (m) Ilandky v. Wood, 9 Ha. 201. 2W. 
 
 (?i) /ScoW V. iV('xo?i, 3 Dru.&W. 388: (o) There is a pos.sible but very 
 
 the verification was merely by affi- rare exception under the old law of 
 
 davit ; but the Court expressly stated inheritance, in the case of an estata 
 
 that the piirchaser might , bad he descending to a person who is not full 
 
 pleased, have insisted on a regular heir, and whose title as temporary 
 
 examination of witnesses : see Kirk- heir may be subseciuently displaced 
 
 xoood V. Lloiid, 12 Ir. Eq. R. 585, 598. by the birth uf a full heir. 
 Moulton V. Edmonds, 1 Uc G. F.&Jo. 
 
 vol.. I. D D
 
 402 THE. ABSTRACT. 
 
 Chap, VIII. the settlement on the ground of personal incapacity on the 
 
 L' part of the settlor, or of fraud practised upon him, &c.,has 
 
 been established in proceedmgs against the party in posses- 
 sion, and, perhaps, other parties, but which are not binding 
 on all the remaindermen : in such a case, inasmuch as lapse 
 of time increases the difficulty of procuring evidence of the 
 facts necessary to invalidate a primd facie valid document, 
 the risk attending the title may for a very long period be 
 said to increase de die in diem. 
 
 Possession Possession for a time exceeding the statutory limit, not 
 
 bars the right, Only bars the remedy, but also extinguishes the right of the 
 remedy only ; oi'iginal owner (p). It has iDeen said that the effect of the 
 but does not Act is to make a Pai'liamentary conveyance of the land to 
 Btatvfto^ry^ '^ the person in possession, after the statutory period has 
 transfer. elapsed (q) : but though it is true that the possessory owner, 
 
 after the statutory limit has been passed, is placed by the 
 Act in a position analogous to that which he would have 
 occupied if the fee simple had been absolutely conveyed to 
 him, yet his title under the Act is acquired solely by the 
 extinction of the right of the prior rightful owner ; not by 
 any statutory transfer of the estate. If the Statute operated 
 as a sort of involuntary alienation of the estate of the right- 
 ful owner, the adverse possessor would take it subject to the 
 subsisting charges ; and wherever it was in settlement, his 
 interest therein would constantly be varying according to 
 the successive limitations of the settlement ; but this is 
 clearly not the operation of the Statute (r). A person who is 
 in possession, but who has not acquired an indefeasible title 
 under the Statute, has, as against every one but the rightful 
 owner, an interest which may be inherited, devised, or con- 
 veyed (s) ; and though his possession may have lasted only 
 for a year, he may, without further proof of title, maintain 
 
 (p) See sect. 34 ; Scott v. Nixon, Richanls, 1 Dru. & "W. 289. 
 3 Dru. & W. 383 ; Burroughs v. (?•) See 1 Hayes Conv. 268 ; and an 
 
 MXreigld, IJ. & L. 290. article xi. Jur. N. S. p. 151. 
 
 {q) Per Parke, B., 14 M. & W. (.s) Doe v. Jauncey. 8 C. & P. 99, 
 
 42 ; and see Lord St. Leonards' judg- 102 ; Aslicr v. W/iitlock, L. R. 1 Q. B. 
 
 ment in Incorporated Society v. 1, 3.
 
 THE ABSTRACT. 403 
 
 ejectment against a person who comes and turns him out (f) ; Chap. vill. 
 
 in other words, he may as against nt raiKjcrs, defend his right ' 
 
 of possession until, by force of the Statute, it lias ripened 
 
 into a right of property. It has been held that in order 
 
 that possession may confer a valid title upon a particular 
 
 individual, it must have been either by the same person or 
 
 by several persons claiming one from another (ii) ; e.g., that 
 
 if twenty persons, unconnected with each other, had been in 
 
 possession, each for one year consecutively, for twenty years, 
 
 it would be impossible to say that any one of these twenty 
 
 persons had acquired a title under the Act (a) ; and in a case 
 
 of this description Lord Romilly, M.R., decreed possession 
 
 to the last occupier, on the ground that, at Law, he might 
 
 have maintained his possession against all but the true owner, 
 
 who was barred by lapse of time {rf). But this decision has 
 
 been questioned (s) ; and the sounder view appears to be, 
 
 that when the original rightful owner loses the possession, 
 
 the first usurper of it becomes the rightful owner as against 
 
 all the world except the original owner ; and so on in the 
 
 case of subusurpations ; so that the actual occupier at the 
 
 time of the extinction of the original owner's right, does 
 
 not acquire an indefeasible statutoiy title, until the rights 
 
 of all former usurpers (if any) of the possession have in like 
 
 manner been extinguished. 
 
 In a late case at law («) A. devised an estate of which 
 he was only tenant by the curtesy, to trustees upon trust for 
 his daughter R for life, with remainder to W.; R entered 
 under the will and acquiied a valid title as against the heir ; 
 but the Court of Queen's Bench held that, as against W., 
 she was estopped from alleging that A. had no title, and 
 
 (t) Doe V. Dycbull, Mood. & M. Gayfere, 17 Beav. 421. 
 
 346. (y) Dixon v. Gayfere, 17 Beav. 421. 
 
 («) See Hawlsbec v. HaicMee, 23 (z) Ashcr v. Wliitlock, L. R. 1 Q. B. 
 
 L. J. Ch. 521 ; 11 Ha. 230 ; and see 1, 4. 
 
 Holmes v. Newlamh, 11 Ad. & E. 44 ; (a) Board v. Board, L. R. 9 Q. B. 
 
 Newlands v. Holmes, 3 Q. B. C79. 48 ; but sec Paine v. Jones, L. R. 18 
 
 (a;) Doe d. Carter v. Barnard, 13 Eq. 320. 
 Q. B. 945 ; see judgment, Dixon v. 
 
 dp2
 
 404 
 
 THE ABSTRACT. 
 
 Chap. VIIT. could not convert her limited interest under the will into a 
 
 Sect. 6. p 
 
 lee. 
 
 Extinction of 
 rent. 
 
 As to cases 
 between lord 
 of a manor 
 anil C(ipy- 
 hokler. 
 
 Adverse pos- 
 session as 
 
 Kent payable out of land is extinguished by its non-pay- 
 ment during the statutory period ; and time runs from the 
 last actual receipt (6). But it must be borne in mind that 
 where the ownership of land, subject to a rent, becomes 
 severed, payment of such rent by the owner of any portion 
 of the property will prevent the Statute from running in 
 favour of the owners of the residue (c). So long as the owner 
 of the rent receives it out of any portion of the land charged 
 with its payment, there is no dispossession to create a bar 
 under the Statute ; and he may distrain on any portion of 
 the land, notwithstanding that the owner or occupier of that 
 portion has not paid the rent for more than tAventy years (c?). 
 But the same rule does not apply to the payment of interest 
 upon gross charges ; thus, if a testator charges his estate with 
 a sum of money, and devises it in several portions to different 
 devisees, payment of the interest by any one of them will 
 not prevent the Statute running in favour of the others (('). 
 
 It has been held (/") that the Act applies as between the 
 lord of a manor and a person entitled to a copyhold tene- 
 ment, but who for twenty years has neglected to enforce his 
 claim to be admitted, and has been out of possession ; and it 
 is conceived that the Act would ojierate conversely, in favour 
 of the quasi-copy holder, in the event of his refusing or 
 neglecting to take admittance, and retaining possession for 
 the statutory period without any acknowledgment of the 
 lord's title. 
 
 As to the title which may be acquired as against the 
 
 {h) Ou-en V. Dc Beau voir, IG M. & 
 W. 547 ; Dc BeauToir v. Oiccn, 5 
 Exch. 1G6; Lord ChUhcstcr v. Hall, 
 17 L. T. 121 Q. B. 
 
 (c) Archbishop of Dublin v. Lord 
 Trirdlcston, 12 Ir. Ecj. R. 251, 261. 
 
 {d) Woodcock V. TiUerton, 12 W. K. 
 865. 
 
 (c) Dicl-inson v. Teasdale, 31 Beav. 
 511 ; 1 Ue G. J. & S. 52 ; compare 
 Coo2)c V. CrcssivcU, L. R. 2 Ch. Ap. 
 112, 126 ; and see Pears v. Laivr/, L. 
 1\. 12 Eq. 41, and vide supra p. 396. 
 
 (/) Walters \. Wtbh, L. R. 9 Eq. 
 S3 ; affirmed L. R. 5 Ch., A p. 531.
 
 THE ABSTRACT. 405 
 
 Crown, and the Crown's grantees, by adverse possession, it Chap. viii. 
 
 may be sufficient to refer to the Acts of 21 Jac. I. c. 14 ; ' 
 
 9 Geo. III. c. 10 ; 24 & 25 Vict. c. 02 {<j) ; and (as to Ireland) g^^^^ *^^ 
 48 Geo. III. c. 47. Such a title may, it seems, be forced on a 
 purchaser (h). The Acts of 2 k 3 Will. IV. c. 71, and c. 100, 
 seem to be binding on the Crown {i). 
 
 As to title by adverse possession in lands belonging to the ^ again.st 
 Duchy of Cornwall, we may refer to the Acts of 7 & 8 Vict. Duchy of 
 c. 105 ; 23 & 24 Vict. c. 53 ; and 24 & 25 Vict. c. 02. s. 2, ^«™^^'^'^ll- 
 which assimilates the limitation applicable to actions and 
 suits by the Crown to actions and suits by the Duke of 
 Cornwall : a title acquired by adverse possession against 
 the Duchy, may, it is conceived, be forced upon a pur- 
 chaser (/;). 
 
 By the Real Property Limitation Act, 1874 (/), which Real property 
 comes into operation on the 1st January, 1870, the statutory ^^^ UTi. 
 periods of limitation will, as from the commencement of the 
 Act, be still further reduced. Thus, no action or suit is to 
 be brought for the recovery of any land or rent, but within 
 12 years from the time when the right first accrued {^in) ; in 
 cases of disability, a period of 0, instead of 10, years is to bo 
 allowed from the termination of the disability {n) ; but no 
 time is to be allowed for absence beyond seas (o) ; and the 
 utmost period to be allowed for disabilities is 30 years (p) ; 
 the Act also fixes 12 years as a bar to the rights of remain- 
 dermen expectant on an estate tail, in the case of adverse 
 possession under an assurance executed by the tenant in 
 tail (g) ; and a like period as against a mortgagor, where the 
 mortgagee has taken possession, and there has been no written 
 acknowledgment (v) ; and also as against a mortgagee or 
 
 {(j) And see 1 Jano. Conv. by S. [1) 37 & 38 Vict. c. 57. 
 
 52 ; and Doc v. Roberts, 13 M. & W. {m) Sect. 1. 
 
 520 ; Mannimj v. Phelps, 10 Exch. {n) Sect. 3. 
 
 59. {o) Sect. 4. 
 
 (A) Tathlll V. Rofjers, 1 J. & L. {p) Sect. 5. 
 
 3G, 72. (5) Sect. G. 
 
 {i) See sect. 1. (?•) Sect. 7. 
 
 {Jc) Tathlll V. Rorjcrs, 1 Jo. & L. 3G.
 
 406 
 
 THE ABSTRACT. 
 
 ^'sTct^e"^' ^^^^^^ entitled to a charge on land, where no interest has 
 
 [ — been paid, or written acknowledgment given (s) ; and other 
 
 portions of the Act of 3 & 4 Will. IV. c. 27, are either 
 repealed or are to be read with reference to the alterations 
 made by the recent Statute (f). 
 
 (s) Sect. 8. 
 
 {t) Sect. 9.
 
 407 
 
 CHAPTER IX. Chap. IX. 
 
 As TO THE PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 1. As to the place and tinie for, and expenses of, iiroduc- 
 tion of the deeds. 
 
 2. Production of — ma.y he compelled, hy luhom. 
 
 3. Non-irroduct'ion of — houi far hwporta.nt. 
 
 4. Examination of — matters to be observed in. 
 
 Section 1. 
 (1.) Every vendor is presumed to have his title deeds in his As to the 
 
 , , „ place and time 
 
 own possession, or at any rate to nave the power oi pro- for, and ex- 
 ducing them ; and though he may only have a covenant for ^^^tion°of the 
 their production, he is still bound to produce them for the deeds, 
 purpose of verifying the abstract ((/) ; nor is the rule affected Vendor bound 
 by the Vendor and Purchaser Act, 1874, which merely pro- deeds ; 
 vides (b) that his inabilitv to furnish a legal covenant for "^^^^,^^ *■" ^^ 
 
 ^ ' '' _ ° _ produced. 
 
 production is not to be a ground of objection to the title ; Expenses of 
 and does not relieve him from his liability, in the absence of "^^^^ ^'^"" 
 stipulation, to produce the deeds for comparison with the 
 abstract. He may produce them either at his own known 
 residence (c), or upon or in the immediate vicinity of the 
 estate (</), or in London (c) ; and the purchaser in such 
 cases pays for the necessary journeys of his own solicitor. 
 If the deeds are in London, a country solicitor must employ 
 a town agent to examine them, and cannot charge for a 
 journey for that purpose ; unless his client, (knowing the 
 practice of the profession to be the other way,) requests him 
 to undertake it (/) : Init a solicitor need not employ an 
 
 («) Bipinn'jall v. LloijO, 2 Nev. & (t) Sug. 429. 
 
 Man. 410. Kf) Alsnp v. Lord Oxford, 1 M. & 
 
 (&) 37 & as Vict. c. 78, tjcct. 2. K. ^>m ; Jlorlock v. Smith, 2 Myl. & 
 
 (c) Sug. 429. C. 523 ; In re Tryon, 7 Beav, 49G. 
 (rf) 1 Jarm. Con v. by S. 99.
 
 408 
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. 
 Sect. 1. 
 
 agent in a country town to examine deed-;, l)ut may send a 
 clerk {(j). Where all or any of the deeds cannot be produced 
 at one of the usual places for production, the additional 
 expenses of journeys thereby rendered necessary are borne 
 by the vendor (It). Whether, however, the purchaser, having 
 voluntarily incurred extraordinary expenses in obtaining an 
 inspection of the deeds, can recover them from the vendor, 
 may be doubted ; his proper course, in such a case, is to 
 refuse to go an unreasonable distance unless his extra costs 
 are paid, or guai'anteed. In estimating what are such extra 
 costs, the vendor, it is conceived, may set off the travelling 
 expenses which the purchaser would have incurred, if the 
 deeds had been produced upon the estate, or at the vendor's 
 residence, or in London. 
 
 Notice of 
 place of pro- 
 duction. 
 
 Deeds cove- 
 nanted to be 
 produced. 
 
 Grants from 
 Crown . 
 
 Instruments 
 on record. 
 
 Where the conditions of sale reserve to the vendor the 
 option of producing the deeds at any one of several specified 
 places, he must give to the purchaser reasonable notice of 
 the place selected for the purpose {I) : if he have only a 
 covenant for production, the purchaser may, it seems, require 
 him to produce them ; or at least to send his own pro- 
 fessional adviser for the purpose of enforcing production ; as 
 it might be refused to the purchaser's agent (/^). In the case 
 of a grant from the Crown, it is sufficient if the vendor's 
 solicitor inform the purchaser where it may be seen (I) ; but 
 the vendor must produce office copies or extracts of proved 
 wills and records, and cannot require the purchaser to ex- 
 amine the originals at the public offices {m). 
 
 Examination The purchaser may, as we have already seen, examine 
 
 fore investiV'a- the dccds before laying the title before counsel ; and, if the 
 
 tion of title. ^-^.^^ prove bad, may, in the absence of any stipulation to 
 
 the contrary, recover the expenses from the vendor ; but, in 
 
 order to do this, he must prove the existence of a valid con- 
 
 {(j) See Ilcr/hes v. Wynne, 8 Sim. 
 85. 
 
 (A) S. a ; S/iarpc v. Par/e, Sug. 430. 
 
 (i) Rippingall v. Lloi^d, 2 Nev. & 
 M. 410. 
 
 (Z) S. a, 419. 
 
 (0 Sug. 431. 
 
 {ni) Sug. 431 ; but as to furnishing 
 copies on completion, vide infra, Ch. 
 XIII.
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 400 
 
 tract for sale (n) ; and he should not, before the deeds are chap. ix. 
 produced, prepare his conveyance (o). ^^ ' ' 
 
 In a modern case (/>), the examination of the deeds by a Whether an 
 purchaser, who for five months had retained the abstract thTtit\^^^ 
 without delivering any requisitions, was held to be evidence 
 of his having accepted the title. The case depended upon 
 its special circumstances, and cannot be considered as esta- 
 blishing any general rule upon the subject ; but it may 
 render it occasionally prudent, in calling for the deeds, to do 
 so with an express reservation of all pending and future 
 questions on the title. 
 
 (2.) Production of deeds — may he compelled, by ivhom. Section 
 
 Where an estate is held in undivided shares, the o\VTier of Production of 
 
 any share may, in Equity, compel the owner of any other brcomp^Uod, 
 
 share who holds the deeds relating to the common title to ^^ whom. 
 
 produce them for the satisfaction of a purchaser (5). Under compri'pro- 
 
 the old practice, production was obtained by motion in '^"'^'lon :— 
 
 ■^ _ ^ _ '' owner of un- 
 
 Court, but now is obtained by summons in Chambers (r). divided share. 
 
 So, where estates are held in severalty under separate of estate 
 titles created by a single instrument, — as in the case of a sevei-irt'iUes 
 settlement, exchange, or partition (.s), — the owner for the "•^'''•ted i.y 
 
 ' o ' 1 . . . single in-stru- 
 
 time lieing of any one such estate, or, it is conceived, of any ment. 
 part of it, may enforce production of such instrument. As 
 between owners of several estates held under the same title, 
 
 (/i) Gosbcll V. Archer.. 4 Nev. & M. Lambe, 3 Y. & C. 162; S. C. at the 
 
 485 ; 2 A. & E. 500. Rolls, 12 Jur. 386 ; Riccard v. Indo- 
 
 (0) Jarmain v. Efjelstone, 5 Car. & sure Commissioners, i EL & B. 329 : 
 
 P. 172. the order in Harrison v. Coppard, 2 
 
 (p) Pegy v. Wisden, 16 Beav. 239. Cox, 318, seems to have been by con- 
 
 (q) See 2 Mer. 490 ; Burton v- sent ; and see Elton v. Elton, 11 Jur, 
 
 Neville, 2 Cox, 242 ; Sug. 443. N. S. 136 ; where the Court made it 
 
 (r) See Thompson v. Teuton, 9 Ha. a term of the delivery of the parti- 
 
 App. 49 ; 15 & 16 Vict. c. 86 ; Mor- tion deed to one of several parceners, 
 
 gan's Ch. Acts, p. 172. that the deed itself should be enrolled 
 
 (s) Lord Banburi/ v. Briscoe, 2 Ch. in Chancery, and a covenant given for 
 
 Ca. 42; Sag. 442 ; and .see Shore v. its production. 
 Collctt, G. Coop. 2:U ; and Att.-Ocn. v.
 
 410 
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. he who can get possession of the deeds has a right to retain 
 J!±l^ them(0. 
 
 Purchaser of 
 portion of 
 estate. 
 
 Legal tenant 
 for life 
 entitled to 
 custody. 
 
 Whether 
 vested remain- 
 derman can 
 enforce jiro- 
 duction. 
 
 Where a portion of an estate has been sold by the owner, 
 who retains the deeds, tlie purchaser can, it appears, in 
 Equity (u), enforce their production upon a resale (x) ; 
 unless there was an understanding to the contrary ; which 
 would probably be implied from the circumstance of the 
 title not being required upon the original sale. 
 
 Where an estate is in settlement, the leoal tenant for life 
 is iw'imd facie entitled to the custody of the title deeds (y) ; 
 but, he cannot, it seems, insist on this light as against 
 trustees who, though taking no estate, have active duties to 
 perform; or where, on other grounds (as, e.g., on account of a 
 pending suit), it is more convenient that the deeds should 
 remain in their possession (z) ; and if wanted for a proper 
 purpose, their production can be enforced by a vested re- 
 mainderman, or by a purchaser from him («) : but it seems 
 that a contingent remainderman caiuiot enforce their pro- 
 duction, even for the purpose of effecting a sale or mort- 
 gage (h) ; and it has been thought that, as a general rule, a 
 vested remainderman cannot compel their production except 
 under sjiecial cii'cumstances (c) ; but, in a modern case, the 
 Court, although admitting that the ordeiing of such pro- 
 duction was not a matter of right, but rested in the dis- 
 cretion of the Couit, and that it would not be directed 
 unless for a purpose which the Court should deem to be 
 proper, held the principle to be that the person so entitled 
 in remainder or his mortgagee is entitled to, and may compel, 
 
 (t) Foster v. Crahb, 12 C. B. 13G. 
 
 (h) But not at Law, Sug. 447, note ; 
 except in cases coming -within the 
 14 & 15A^ct. c. 99, s. 6. 
 
 (x) Fain v. Ayers, 2 Sim. & St. 
 533 ; in this case the purchaser 
 claimed to be entitled to a covenant 
 for production imder the covenant for 
 further assurance, but thi.s particular 
 point was not decided. 
 
 (ij) Garner V. Hannijnrjton, 22Beav. 
 
 444. 
 
 {z) Stanford v. Roberts, L. E. 6 Ch. 
 Ap. 307. 
 
 (a) Lord Lempster v. Lord Pom/ret, 
 1 Dick, 238 ; Davis v. Lord Dysart, 
 20 Bcav. 405 ; 21 Bear. 124. 
 
 (h) Noel V. Ward, 1 Madd. 322. 
 
 (c) Sec 2nd Ed. 227 ; Shaw v. 
 Shatv, 12 Pri. 167 ; Lord Lcmpster v. 
 Lord Pom/ret, 1 Dick, 238.
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. *ill 
 
 such production ; and if it be suggested that the purpose chap. IX. 
 
 for which the documents are required is an improper one, 
 
 the burthen of proving this lies on the the party resisting 
 production ; but that the right only exists where the title of 
 the plaintitl" to the interest which he claims in the land is 
 free from all reasonable cause of litigation ((/.) : and this 
 seems to be the reasonable doctrine. 
 
 And it is conceived, that where, as sometimes happens. Remainder- 
 A. and B. jointly purchase property, taking the conveyance purchase- 
 so as to give to B. merely an estate in remainder, B. 
 has a general right to the production of the muniments of 
 title. 
 
 A mortgagee is not, in general, bound to produce the M.jrtgagee 
 deeds until he is paid oft* (e), even although the devisee of Juce deeds 
 the mortgaged estate may be ignorant of all particulars ^^^^ l'^'^ °^- 
 relating to the security (/) : it has, however, been held that 
 this immunity does not, as between mortgagor and mort- 
 gagee, extend to the mortgage deed itself; for this is as 
 much evidence of the mortgagor's title to redeem, as it is of 
 the mortgagee's estate (g) : but in a later case (Jc) L. J. 
 Giffard, in discharging an order for production, made by 
 V.-C. James, laid it down that after the mortgage has be- 
 come absolute, the mortgagor cannot see the title deeds 
 which he has deposited with the mortgagee, except upon 
 payment of principal, interest, and costs ; and, apparently, 
 no distinction was drawn between the mortgage deed and 
 the earlier title deeds, as regards the application of the 
 
 {d) Davis V. Lord Dymrt, 1 Jur. sit upon it, until the money was put 
 
 N. S. 743 ; 20 Beav. 405 ; 21 Beav. into his hands ; see 1 Y. & C. 107. 
 
 j2.i The protection, of course, extends to 
 
 (c) See SparU v. Montrlou, 1 Y, & drafts, and copies, &c., Bjcroft v. 
 
 C. 103 ; Addison v. Wcdlccr, 4 Y. & fiihd, 20 L. T. 197. 
 
 C. 447 ; Greenwood v. RothuxU, 7 (/) Broicnc v. Lockkart, 10 Sim. 
 
 Beav, 291 ; Damcr v. Lord Portar- 421 ; see Crisp v. Platcl, 8 Beav. 62. 
 
 Hnjton, 15 Sim. 380 ; Cannock v. i'j) Patch v. Ward, L. R. 1 Eq. 
 
 Juunccy, 1 Dre. 497, 507. Lord Ken- 43(3. 
 
 yon is said to have advised a mort- (h) Chichesber v. Marquis of Done- 
 
 gagec to put his deeds into a box and jal, L. R. 5 Ch. Ap. 497.
 
 412 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Se^" " ^'^^^ 0')- -^ mortgagee who has l)ought the equity of re- 
 
 demption, subject to a right of re-purchase reserved to the 
 
 mortgagor and exercisealjle within a limited period, is wdthin 
 the rule ; and need not, unless his money be tendered, 
 produce the deeds for the satisfaction of an intending pur- 
 chaser from the mortgagor (k). Since, however, a person 
 can, as a general rule, give no right which he does not 
 himself possess (l), the mortgagee of a person who would be 
 liable to produce the deeds must himself, unless he can 
 protect himself by want of notice (m), produce them at the 
 suit of those persons wdio could compel their production as 
 against the mortgagor ()?) ; but he would not be justified in 
 so producing them except with the consent of the latter, or 
 under an order of the Court (o). 
 
 Lien of soli- g^ ^^le solicitor of a mortgagee has no lien upon the 
 
 citor. ' ^ ^ ^ 
 
 deeds, as against the mortgagor, to an amount exceeding 
 what is due on the security {'p). So, the lien of the solicitor 
 of an executor upon title deeds of a testator's leaseholds, is 
 subject to the amount (if any) due from his client to the 
 testator's estate (q). If the solicitor of the mortgagor in- 
 
 (/) As to production of a mortgage see Newton v. Newton, L. R. 4 Ch. 
 
 deed in bankruptcy under the Act of Ap. 497. 
 
 1861, see re Marls Trust deed, L. R. (;() Balk v. Marrjravc, 4 Beav. 119 j 
 
 1 Ch. Ap. 429 ; and as to production and see Ilercy t. Ferrers, ih. 97 ; also 
 
 under the Companies Act, 18G2, a singular case of .l/«s<on v. i?;'«(/s/(fnc, 
 
 25 & 26 Vict. e. 89, s. 115, of docu- 10 Jur. 402 ; 15 Sim. 192 ; where it 
 
 ments subject to a solicitor's lien for was held that a purchaser could not, 
 
 costs, see ISoiith Essex Estuari/, d'C. Co,, on the ground of the vendor's wife 
 
 L. R. 4 Ch. Ap. 215. having possessed herself of the deeds, 
 
 (k) Smith V. Pawson, 25 L. T. 40. make her a defendant to a suit for 
 
 (l) See Pelli/ v. Wathen, 7 Ha. specific performance ; and see Jitim- 
 
 351 ; 1 De G. M. & G., 16 ; Gibson v. hold v. Fortreath, 3 K. & J. 44. 
 
 May, 4 De G. M. & G. 512. {<,) Lambert v. Fogers, 2 Mer. 490. 
 
 (m) See Walhri/n v. Lcc, 9 Ves. 24 ; See (rough v. Offleg, 5 De G. & S. 653. 
 
 a case of a mortgage in fee by a person {/>) HoUis v. Claridge, 4 Taunt. 
 
 originally so seised, and who sup- 807 ; see Wakefield v. Newbon, 6 Q. B. 
 
 pressed an intermediate settlement ; 276 ; Rider v. Jones, 2 Y. & C. C. C. 
 
 and see and consider Heath v. Crea- 329 ; and Pelly v. Wathen, 1 De G. 
 
 loch, L. R. 10 Ch. Ap. 22; see, too. M. & G. 16 ; Hope v. Liddcll, 7 De 
 
 Joyce V. Be Moleyns, 2 J. & L. 374 ; G. M. & G. 331. 
 
 Francis v. Francis, 2 De G. M. & G. {'/) Turner v. Letts, 7 De G. M. & 
 
 73, 78 ; 5 De G. M. & G. 108 ; but G. 243.
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 413 
 
 duce the solicitor of the mortoja(]jec to part with the deeds, Chap. IX. 
 
 . Sect 2 
 
 by a verbal undertaking to pay a sum claimed to be due for ' 
 
 costs, such undertaking will be enforced summarily upon 
 motion (/■) ; and it has been held that the lien of the mort- 
 gagor's solicitors upon the engrossment of the reconveyance 
 was not prejudiced by their sending it to the morgagee's 
 solicitors, with a request that they would hold it for them 
 subject to the lien ; and a purchaser from the mortgagor was 
 restrained from proceeding at Law for the recovery of the 
 deed (s). 
 
 A mortiraefee who consents to a sale by the Court must Exceptions 
 bring the deeds into Court in the usual way {f) : and it is 
 conceived that, in an ordinary case, a mortgagee who has 
 countenanced a mortgagor in selling under the expectation 
 of his concurrence, would not be allowed to stop the sale by 
 refusing to produce the deeds before actual payment (u). 
 
 A mortgagee who has, even although insane, destroyed (x), Liability of 
 or has negligently lost (y) the muniments of title, w\\\, it loss or de- 
 seems, be compelled to replace such as can be replaced ; and ^g™jg^™ °^ 
 as respects originals, which cannot be replaced, will be re- 
 quired either to give an indemnity, or to make compen- 
 sation, for the damage thereby done to the estate ; but a 
 mortgagee taking the same care of the deeds forming his 
 security as he took of his own, ought not, it woidd seem, to 
 be severely dealt with if they are accidentally lost (z). His 
 bond has been held a sufficient indemnity to the owner of 
 the equity of redemption (a.) ; and if such a bond, and a 
 reconveyance, be executed by the mortgagee, the mortgagor 
 can be compelled to pay the amount due (h). 
 
 (r) In re Gee, 2 Dowl. & L. 997 ; 325 ; Brown v.Sacell, 11 Ha. 49. 
 
 see, in Equity, Gilbert v. Cooper, 15 {y) Lord Midleton v. Eliot, 15 Sim. 
 
 Sim. 343, reversed C47. 531. 
 
 (s) Watson V. Lyon, 7 De G. M. & (:) Woodinan v. Iliyjins, 14 Jur. 
 
 G. 288 ; see too, Newton v. Beck, 3 846, V.-C. K. B. 
 
 Hurl. & N. 220 ; 4 Jur. N. S. 340. {n) Bkelmardinc v. llarrop, 6 Madd. 
 
 {I) Livesey v. Hurdiny, 1 Beav. 343. 39 ; and .see a form of bond, ib. 41, n. 
 
 (//) Wt;e Croanc V. Reversionary So- (b) Slokoe v. Rohsoni, 19 Ves. 385 ; 
 
 ciety, 3 De G. M. & G. 712. Smith v. Bickncll, 3 V. & B. 51, n. ; 
 
 (,(•) Hornby v. Matckan, 16 Sim. Skclmardiiie v. llarrop, v.bi supra.
 
 414 
 
 PRODUf'TION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. 
 
 Sect. 2. 
 
 Production ol 
 Court KoUs. 
 
 The 15 & 10 Vict. c. 51 (c) contains provisions for securing 
 to the owners of lands enfranchised under the Copyhold 
 Enfrancliisement Acts, the production of the Court Rolls of 
 the nianois whereof the lands are holden ; and the 81st 
 General Rule of Hil. T. IG Vict. ((/), provides for the order 
 upon the lord of a manor for the usual limited inspection of 
 the Court Rolls on the application of a coj^yhold tenant 
 being made absolute, upon an affidavit that the tenant has 
 applied for and been refused inspection. 
 
 Statutory 
 right to pro ■ 
 duction. 
 
 Section 3. 
 
 Non -produc- 
 tion of deeda 
 — how far im- 
 portant. 
 
 Importance of 
 non-produc- 
 tion of deeds. 
 May affect 
 purchaser 
 with notice of 
 their deposit. 
 
 We may here refer generally to the powers which recent 
 Statutes (e) have conferred upon Courts of Law to compel 
 production and inspection of documents, wherever Equity 
 would grant discovery ; and we may also refer to the power 
 which the Court of Chancery has, under the Companies 
 Act, 1862 (/), after a winding-up order has been made, to 
 compel the production of deeds or other documents relatijig 
 to the company (y). 
 
 (3.) Kon-pvoduct'lon of deeds — hov far important. 
 
 The non-production of the deeds is material, not only as 
 it deprives the purchaser of the usual means of verifying the 
 title deduced upon the abstract, but as inducing a suspicion 
 that they may liave been deposited by way of equitable 
 mortgage : it has even been held, on a sale of a public-house 
 in London, that tlieir non-production amounted to notice to 
 a mortgagee of such a deposit with the brewers who supplied 
 the house {h). This decision has been disapproved of (i) : and 
 has been thought to depend upon the presumed notoriety of 
 the practice of London publicans so to deposit their deeds, 
 and upon the fact of the mortgagee having been aware that 
 
 (c) Sects. 20, 21. 
 
 (d) 1 El. & Bl. 34, App. IX. 
 
 (e) See 14 & 15 Vict. c. 99, s. 6 ; 
 15 & 16 Vict. c. 86, s. 18 ; 17 & 18 
 Vict. c. 125, s. 50 ; 23 & 24 Vict, 
 c. 128 ; and vide infr d;Ch. XVII., s. 5, 
 and cases there cited. 
 
 (/) 25 & 26 Vict, c, 89. s. 115. 
 
 (y) See re South Essex Estuary d-c. 
 Co.,!,. R. 4Ch.,Ap. 215. 
 
 (/<) Whitbrcad v. Jordan, 1 Y. & C. 
 303. 
 
 {/) See 4 Y. & C. 563 ; Sug. 767-
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 415 
 
 the publican was indebted to the brewers : in fact, the Court Chap. IX. 
 
 considered that there was wilful blindness, the security 
 
 having been taken for the repayment, not of a contempora- 
 neous advance, but of a sum already due (^0 : however, in a 
 modern case, it was held by Sir L. Shadwell, V.-C, that the 
 omission to ask for the deeds was sufticient to postpone a 
 mortgagee who took a conveyance of the legal estate by v/ay 
 of security for a pre-existing debt, although it did not 
 appear that he was aware of the mortgagor being indebted 
 to the prior incumbrancer (/). 
 
 (4.) Examination of deeds — matters to he observed in. Section 4. 
 
 In the examination of the aljstract with the documents, Examination 
 
 p , of deeds — mat- 
 
 the most scrupulous care is requisite on the part ot tne ^^^s to be ob- 
 solicitor. The obiect of the examination is to ascertain, 1st, served m, 
 
 ,, Points to be 
 
 that what has been abstracted is correctly abstracted ; 2ndly, attended to ia 
 that what is omitted is clearly immaterial ; 3rdly, that the XsErwith 
 documents are perfect, as respects execution, attestation, the deeds. 
 indorsed receipts, registration, stamps, &lc. ; and 4thly, that 
 there are no indorsed notices, nor any circumstances atten- 
 ding the mode of execution, attestation, &c., kc, calculated to 
 excite suspicion (r/i). Anything out of the ordinary course 
 — such as the unusual position of the indorsed receipt (n) — 
 should be made the subject of inquiry. Every part of every 
 document ought to be read through, especially the covenants 
 for title, &c., in a conveyance or mortgage. Notice of an 
 incumbrance is equally notice whether contained in one or 
 in another part of a deed (o) : and if an important point be 
 overlooked, the purchaser, after the conveyance is executed 
 and the purchase-money is paid, will have no remedy against 
 
 (k) 1 Ph. 255- 135 ; and vide infra, Ch. XV. ss. 3 and 5. 
 
 (I) Worthinfjton v. Morgan, 16 (m) See A'enncrfy v. (?rccH, 3 Myl. & 
 
 Sim. 547 ; 13 Jur. 316 ; where it ap- K. 699. 
 
 pears that the security was for money {n) See Kennedy v. Green, 3 Myl. & 
 
 previously due ; and see Hcuitt v. K. 669, and the judgment in Green- 
 
 Loosemore, 9 Ila. 449 ; Pcio v. Ham- sludc v. Dare, 1 Jur. N. S. 294 ; 20 
 
 mond, 30 P>oav. 495 ; but see Ajra Beav. 284. 
 
 Bank V, Barri/, Tj. 1?. 7 E. & Ir. Ap. {<>) See Smith v. C'apron, 7 Ila. 189.
 
 416 
 
 PRODUCTION AND EXAMINATION OF THE DEEDS. 
 
 Chap. IX. 
 Sect. 4, 
 
 tlic vendor unless it falls within the covenants for title; and 
 this, apparently, even although the abstract may have been 
 incorrect (^>). Perhaps few of the most important duties of 
 a solicitor are so frequently performed in a perfunctory 
 manner. 
 
 Erasures and 
 interlinea- 
 tions. 
 
 We may here remark, as connected with the present sub- 
 ject, that erasures and interlineations in a deed are to be 
 presumed to have been made prior to, or at the time of, its 
 execution (q) ; as, on any other supposition, a crime must be 
 presumed to have been committed (r) : but, in the absence 
 of proof to the contrary, erasures and interlineations in the 
 face of a will are presumed to be made after its execution (s); 
 and also after the execution of a codicil, which does not 
 refer to them (t). It seems that unattested alterations in a 
 will dated before, but coming into operation after, the late 
 Wills Act are presumed to have been made before the Act (u). 
 
 (p) See WCidhch v. Gregory, 1 K. 
 & J. 291. 
 
 (q) Doe V. Catamore, 16 Q. B. 745. 
 
 (r) Per V.-C. W. in Williams v, 
 Ashton,lJ. &H. 115,118. 
 
 (s) Doe V. Palmer, 16 Q. B. 747 ; 
 Cooper V. Beckett, 4 Moore, P. C. 419; 
 Grcville v. Ti/lee, 7 Moo. P. C. 320 ; 
 Freeman v. Ste[/fjel, 13 Jur. 1030 
 Q. B. ; Simmons v. Rudall, 1 Sim, 
 N. R. 115, 136 ; Gann v. Grojoru, 17 
 Jur. 520 ; 3 De G. M. & G. 777 ; Re 
 
 WJiitc, 6 Jur. N. S. 808; and see 
 WilUain V. Ashton, 1 Johns & H. 
 115, 118, and statement of the rule 
 in the judgment. 
 
 (t) Rowley v. Merlin, 6 Jur. N. S. 
 1165. Alterations in a soldier's will 
 which was signed by him while he was 
 on actual military service are presumed 
 to have been made during the con- 
 tinuance of such service, re Twecdale, 
 L. R. 3 P. & D. 204. 
 
 (u) Re Streaker, 28 L. J. Prob. 50.
 
 417 
 
 CHAPTER X. Chap. X. 
 
 AS TO MATTERS ARISING BETWEEN DELIVERY OF ABSTRACT 
 AND PREPARATION OF CONVEYANCE. 
 
 1. Time, vjheiii essenfid at Laiv and in Equity. 
 
 2. Ohjed'ions to title — negotiations upon and ivaiver of — 
 when 2'^osiiession taken amounts to ivaiver. 
 
 3. General rigJds and liahilities of jmrchaser in ^wssession. 
 
 4. Vendor in j^ossession — alteration of property hy, may 
 avoid contract. 
 
 5. As to entry and possession hy railway companies 
 before completion. 
 
 (1). At Law, the time fixed for completion is of the essence Section l. 
 of the contract {a) ; and the purchaser may recover his Ti~e~wl 
 deposit unless the vendor can deduce and verify a market- essenti il :it 
 
 . . Law and in 
 
 able title and give a conveyance at the time agreed on (6) : Etiuity. 
 
 if no time be fixed, a reasonaljle time must be allowed (c) • "^^^^ essential 
 
 at Law ; 
 and it has been held that a condition that the purchase- 
 money shall be paid on a certain day, does not amount to a 
 stipulation that the title shall be made out on or before that 
 day (d). Where fiduciary vendors in effect undertook to 
 procure the sanction of the Court of Chancery to the sale 
 within a specified period, it was held that this was a con- 
 dition precedent which, not being performed, avoided the 
 contract (e) ; so, where it was stipulated that the purchaser 
 should pay a further sum of money provided certain paving 
 
 (a) Berry v. Young, 2 Esp. 640, n. ; (c) Sansom v. lihodcs, 8 Sco. 544. 
 
 Stowellv. Robinson, 3 Bing. N. C. 928 ; (d) S. C. ; sed quwrc. 
 
 Marshall v. Powell, 9 Q. B. 779. 791 ; (c) Porchcr v, Gardner, 19 L.J. N.S 
 
 Jlanslijy v. Padvnd; 5 Exch. 623. C, T. 63 ; 8 C. B. 461. 
 
 {h) Sug. 259. 
 
 VOL. I. 5 E
 
 418 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 1. 
 
 works were completed by the vendor, within a specified 
 time, the vendor, having made default in consequence of 
 the bad weather, was held disentitled to recover the ad- 
 ditional purchase-money (/). 
 
 hi)w far essen- 
 tial in Equity. 
 
 In E(|uity, however, although unreasonable delay will of 
 itself conclude either party, the Court will relieve against, 
 or enforce, specific performance, notwithstanding a failure to 
 keep the dates assigned by the contract either for com- 
 pletion, or for any of the steps towards completion, if it can 
 do justice between the parties {g) ; and if there is nothing 
 in the express stipulations of the agreement, or the nature 
 of the property, or the surrounding circumstances, which 
 would make it inequitable to interfere with and modif}^ the 
 legal right. This is what is meant, and all that is meant, 
 w^hen it is said that in Equity time is not of the essence of 
 the contract (/<). This equitable doctrine has, of course, no 
 application where time has been made of the essence of the 
 contract by express agreement (i) ; or where, from the 
 nature of the property or other circumstances, it is clear that 
 such must have been the intention of the parties (/i'). 
 
 As where 
 vendor incurs 
 liability by 
 keeping pro- 
 perty ; 
 
 For instance, on an agreement, by a tenant at will of a 
 public house, for the sale of the possession, trade, and good- 
 will, at a fixed sum, and of the stock and furniture at a 
 valuation, possession to be taken and the money paid on a 
 given day, the delay of a single day on the part of the 
 purchaser in having the valuation completed, and in taking 
 possession and paying the purchase-money, was held to 
 relieve the vendor from the contract : inasmuch as he in- 
 curred fresh liabilities by retaining the premises, and the 
 stock in the meantime varied (/). 
 
 (/) Marijoii V. Carter, 4 Ca. & Pa. 
 295 ; and see Sug. 259. 
 
 {fj) See Lord Cairns., C.,in TtUey v. 
 Thomas, L. R. 3 Ch. Ap. G7. 
 
 (/t) Per Turner, L. J., in Roberts v. 
 Bcrrij, 3 De G. M. & G. 284. 
 
 (0 Iloneyman v. Marryatt, 21 Beav. 
 
 24. 
 
 (<") Sug. 260 ; Lennon v. Napper, 
 2 Sch. & Lef. 682 ; Roberts v. Berry, 
 16 Beav. 31 ; 3 De G. M. & G. 284 ; 
 Pari! a v. Thorold, 16 Beav. 59, over- 
 ruling S. C, 2 Sim. N. R. 1. 
 
 (/) CosJal-c v. TdU 1 Russ. 376.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 419 
 
 So, upon the sale of a piiljlic house as a going concern, Chap. X. 
 time is of the essence of the contract ; and if the vendor LJ 
 
 cannot, by the day appointed for the completion of the pur- 
 chase, procure a transfer of the license under the Licensing 
 Act, the purchaser may repudiate the contract (^m). 
 
 So, the fluctuating value of the property may alone show or property ia 
 
 1 • TOT en L L ^^ fluctuating 
 
 that tnne was to be oi the essence oi the contract : as upon value ; 
 an agreement for the sale of foreign stock (/?), or of a mining- 
 lease (o), or of a reversion, which may become an estate in 
 possession during the delay, and the sale of which generally 
 evidences immediate want of money (2>)> o^' ^ life annuity, orof adetcr- 
 or life estate, which may determine by the death of the character ; 
 cestui qvAi vie (q). 
 
 So, where the property is of a wasting character, as, e.g., or of a 
 
 wasting char- 
 
 a leasehold for a short unexpn-ed term (r), acter ; 
 
 So where the purchaser evidently requires the property or is evidently 
 for his residence (.s), or for some other immediate purpose (^). once j 
 
 So, where the vendors, (being beneficially interested,) are or where the 
 a fluctuating body (as in the case of a dean and chapter), fjuctuaUno'^ ^ 
 where delay may give the purchase-money to persons other ^^'^^y- 
 than those who signed the contract (;u). 
 
 (m) Seaton v, Mapp, 2 Coll. 556 ; Ves. 667, 672 ; JllinceU v, Kniyht, 1 
 
 9 Geo. IV. c. 61 ; Daii v. Laklc, Y, & C. 401, 416 ; Wyrill v. Bp. of 
 
 L. R. 5 Eq. 336 ; Claydon v. Green, Exeter, 1 Pri. 292, 298. 
 L. R. 2 C. P. 511 ; Cowles v. Gale, (q) See Withtj v, Cottle, Turn & R. 
 
 L. R. 7 Ch. Ap. 12, following Day v. 78. 
 
 Luhkc ; see, too, sect. 9 of 32 & 33 (r) Iliuhon v. Temple, 29 Beaw 
 
 Vict., c. 27, regulating the transfer of 536, 543. 
 
 licences ; and see now 35 & 36 Vict. («) Uedye v. Duhe of Montrose, 26 
 
 c. 94, sect. 40. Beav. 45; Levy v. Lindo, 3 Mer. 84 ; 
 
 (w) Doloret v. Rothscldld, 1 Sim. & Tilley v. Thomas, L. R. 3 Ch. Ap. 61 ; 
 
 St. 590. Wehh v. Ihujhes, L. R. 10 Eq. 281. 
 
 (o) Machryde v. Weelces, 22 Beav. (t) Wri'yht v. Howard, 1 Sim. & St. 
 
 533. 190 ; Parker v. Frith, ih. 199. 
 
 (p) See Neicman v. Rogers, 4 Bro. («) Carter v. Dean of Ely, 7 Sim. 
 
 C. C. 391 ; Spurrkr v. Hancock, 4 211. 
 
 E E 2
 
 420 
 
 MATTERS BETWEEN DELIVEEY OF 
 
 Chap. X. And the tendency of modern decisions has been to hold 
 
 LJ persons concerned in contracts relating to land, bound, as in 
 
 cisions tend to Other contracts, to I'egai'd time as mateiial ; and this prin- 
 render tune ciplc lias been applied with the greater strictness where the 
 property was connected with trade («). 
 
 Exercise of ^q ^n Option to purchase under a ri^'ht of pre-emption 
 
 right of -^ . } ^ . . 
 
 proewmjtion^ must be exercised within the prescribed period (y). 
 
 Purchase- >So, the circumstance of the purchase-money being evidently 
 
 money wanted • i p , f • ^ • • , i 
 
 to discharii-e required lor payment 01 mcumlwances, is important; espe- 
 
 incumbrances. (>ig^][y jf ^j^^ j.g^^g Qf interest which they bear exceed that 
 which the purchaser is to pay during delay (s). 
 
 Private unex- 
 pressed mo- 
 tives for 
 purchase. 
 
 But the private motives which may have induced a party 
 to enter into a contract, unless expressed in the agreement, 
 or such as might l^o presumed from the general apparent 
 circumstances of the case, do not make time essential ; e. g., 
 tlie unexpressed intention to reside immediately upon the 
 estate («) : where, however, the motive is of material import- 
 ance — as in the case of the intention to reside — althouo:h 
 not disclosed in the contract, it would, it appears, be sufficient 
 to bind the vendor to the time named in the contract, if 
 communicated at or within a reasonable period after its 
 execution (b). 
 
 (x) Per Wigram, V.-C, in Wallrr 
 V. Jeffreys, 1 Ha. 348 ; and see Wr'njht 
 V. Howard, 1 Sim. & St. 190 ; Parlor 
 V. Frith, ih. 199, n. ; CoslaU v. Till, 
 1 Euss. 376 ; Sparrow's case, cited 2 
 Sch. & L. 604 ; Sea ton v. Mapp, 2 
 Coll. 556 ; and Lord Cranworth's de- 
 cision in Purlin v. Tkorold, 2 Sim. 
 N. R. 1 ; which, however, went very 
 far, and has since been overruled ; 16 
 Beav. 59 ; Wells v. Maxwell, 32 Beav. 
 408 ; Gedije v. Dulc of Montrose, 26 
 Beav. 45 ; and see case cited suptru, 
 p. 418. 
 
 (y) Broole v. Garrod, 3 K. & Jo. 
 COS ; 2 De G. & Jo. 62, 66 ; Aldermi 
 
 v. White, 3 Jur. N. S. 1316 ; Austin 
 v. Tawneij, L. R. 2 Ch. Ap. 143 ; 
 Rowlands v. Evans, 8 Jur. N. S. 88 ; 
 Lord llanelayh v. Melton, 10 Jur. N. 
 S. 1141. 
 
 (.:) Popham v. Pyre, Lofft, 786 ; 
 Sug. 262 ; Anon., cited 2 Sch. & L. 
 604. 
 
 («) See Boehm v. Wood, 1 Jac. & 
 W. 422 ; Dyer v. Har grave, 10 Ves. 
 508. 
 
 {h) See 7 Ves. 279 ; and Xolcs v. 
 Lord Kdmorey, 1 De G. & S. 444 ; and 
 see Gedye v. Dulc of Montrose, 20 
 Beav. 45.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 421 
 
 A stipulation that time shall ho of the essence of the Chap. X 
 contract as respects the delivery of olyections to the title, 
 
 Time made 
 
 raises a presumption that it is not to be essential as regards gg^ntiafas to 
 the comiiletion of the purchase; and this presumption is objections to 
 
 ^ '■ -^ , title IS not 
 
 strengthened by a provision for the payment of interest by thereby made 
 the purchaser, in the event of the purchase not being com- completion of 
 pleted by the day named (c). purchase. 
 
 Nor is a mere undertaking that possession (which in such Undertaking 
 
 . 1,1 • 1 J. ^'^ deliver 
 
 a stipulation means not merely actual possession, but posses- possession, 
 sion with a good title shown ((/),) shall be delivered on a 
 certain day, of itself binding in Equity (e). 
 
 In all the above cases the delay may be sui)posed to have Effect of 
 
 •^ -^ ^ ^ wilful delay ; 
 
 arisen from the state of the title, or otherwise without any 
 
 wilful or gross neglect by the party in default ; gross or wilful 
 neglect (/), however, by either party, will, in any case, 
 entitle the other party to avoid the contract in Equity ; e.g., 
 where the vendor, although urged by the purchaser to make 
 out his title, takes no steps to do so, the purchaser imme- 
 diately upon the expiration of the time fixed for completion 
 may rescind the agreement (g). 
 
 Where time is of the essence of the contract, the purchaser of protest 
 
 '- without active 
 
 should not be content with merely asking the vendor to take pressure. 
 
 the necessary steps towards completing the purchase, but 
 should diligently press him to do so (h) ; and a purchaser 
 who takes no steps to enforce the contract within a reason- 
 able time, will be left to his remedies at Law; and the strong 
 
 {(■) Sec Wells V. Maxvcll, 32 Bcav. Dean, 28 Beav. GO", and vi</c Infra. 
 408 ; and compare Webb v. Ilwjhcs, (/) See Lcnnon v. Nappcr, 2 Sch. 
 
 L. R. 10 E(i. 281. & Lef. 682 ; Pwberts v. Berry, 3 Ue 
 
 {d) Tilky V. Thomas, L. E. 3 Ch. G. INI. & G. 289 ; TlUcy v. Thomas, 
 
 Ap. 61. L. R. 3 Ch. Ap. Gl. 
 
 (c) See Bochm v. Wood, 1 Jac. & (u) Lloyd v. CoUett, 4 Bro. C. C. 
 
 W. 419 ; and see Webb v. Ilwjhex, 469, cited 5 Ves. 737 ; Warde v. Jcf. 
 
 L. R. 10 Eq. 281, where the negotia- ftry, 4 Pri 294. 
 
 tions were continued by the purcha.scr {h) Broolc v. Oarrod, 3 K. & Jo. 
 
 after the date on which he had .stipu- 608, 616 ; Williams v. Glcnton, L. R. 
 
 lated for possession. As to what is 1 Ch. Ap. 200, affirming M. R., 34 
 
 delivery of possession, see Lake v. Beav. 528.
 
 422 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 1. 
 
 tendency of modern decisions is to diminisli the time allowed 
 to either party for enforcing his rights under the contract (/). 
 But, of course, where the contract, though incomplete, has 
 been acted on, and either part}?- has substantially had the 
 benefit contracted for, time does not so readily run (/.). 
 
 When title 
 must be shown 
 in Equity ; 
 
 Where time is not of the essence of the contract, and the 
 delay originates in the state of the title, it is sufficient, upon 
 a bill for specific performance being filed by the vendor, if a 
 good title be shown at the date of the decree (?) ; or of the 
 investigation at chambers, if the title is referred to chambers. 
 
 aud at Law. And, at Law, where no time is fixed for completion, and 
 
 the purchaser does not require the title to be produced, and 
 none is produced before an action has been commenced by 
 the vendor, it is sufficient if the latter perfect his title at any 
 time before the trial (//*-) ; but if a title be produced, and 
 prove defective or be not properly verified, or, a forfiori, if 
 the vendor, on being requii-ed to produce a title, altogether 
 neglect to do so, the production of a perfect title before trial 
 is insufficient (71). 
 
 Tiine may be But although time may not originally have been of the 
 
 limited by 
 
 notice, cssence 01 the contract, either party may, by proper notice, 
 
 bind the othei- to complete within a reasonable specified 
 period (0). 
 
 allowing a 
 reasonable 
 period. 
 
 The notice should, at least as a matter of precaution, be in 
 writing, and should allow a reasonable time for completion : 
 what time can be so considered, must greatly depend upon 
 the circumstances of the particular case. Three da3^s' notice 
 by a vendor would be too short (p) ; even six weeks has been 
 
 (0 Vide hrfm, Ch. XVIII. ; 6 Ha. 
 213. 
 
 (i) Sharx-) v. MiUlgan, 22 Beav. 606. 
 
 {I) Vide infra, Ch. XVIII. ; 6 Ha. 
 213. 
 
 {»i} Thomson v. Miles, 1 Esp. 184. 
 
 («) Vide infra, Ch. XVII. 
 
 (o) Stewart V. Smith, 6 Ha. 223, 
 n. ; see Ilcaphy v. Hill, 2 Sim. & St. 
 20 ; Wchb V. Iluyhcs, L. R. 10 E<i. 
 281, and cases cited in next notes. 
 
 (/;) See Reynolds v. Kelson, 6 Madd. 
 18 ; Sug. 268.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 423 
 
 held to he insufficient ((j) ; so, a week's notice by a purchaser, Chap. X. 
 
 ^ ,. Sect. 1. 
 within whicli time the vendor was recjun-ed to prove a clis- 
 
 puted legitimacy, was held too short (/■) ; so, two months' 
 notice by a purchaser, Avhere the vendor was taking active 
 steps to remove the only two remaining objections to the 
 title, but for the removal of which longer time was obviously 
 wanted («) ; but, two months' notice by a purchaser, within 
 which time the vendor was required to remove an objection 
 to the title depending upon a defective execution of a power, 
 appears to have been considered sufficient in a modern case, 
 which was, however, decided upon another point (t). In 
 another modern case, where a delay of two months had 
 occurred in procuring the execution of the conveyance by 
 cei-tain parties, a ten days' notice by the purchaser was con- 
 sidered sufficient (?(). In a later case, a notice requiring the 
 vendor to complete the title within fourteen days after the 
 day originally named for completion was considered unreason- 
 able (x) ; but in a still later case, a month's notice by a 
 piu-chaser after two months' delay was considered sufficient ; 
 although the performance of the contract depended upon the 
 vendor being able to enter into a complete arrangement with 
 third parties ; but the decision in this case rested in a great 
 measure upon the fluctuating character of the property {>/). 
 
 It is not, as a general rule, essential to the l;)inding effect Astothe 
 of a vendor's notice, that he should, at the expiration of it, ^^ ^^ ' 
 return or tender the deposit {z) ; nor, on the other hand, 
 where the purchaser's notice has expired, is he bound to 
 bring an action for his deposit (a). 
 
 But a purchaser cannot, in general, determine the contract Purchaser 
 
 ^ cannot re- 
 
 (7) Pojf/ V. Wmlai, 16 Boav. 239. see S. C, 2 Sim. N. R. 1 ; and see 
 
 (r) Kw<j V. Wihon, 6 13eav. 124. N<>tl v. Riccard, 4 W. R. 269 ; 22 
 
 (s) Wells V. MaxwcU, 32 Beav. 408 ; Beav. 307. 
 
 see too, McMurray v. Spkcr, L. R. 5 {y) Machrydc v. Wcclccs, 22 Beav. 
 
 -£„ 527, 533 ; see too, Haywood v. Cope, 25 
 
 (t) Soutlicomh V. Bishop of Exdcr, Beav. HO. 
 
 11 Jur. 727 ; 6 Ha. 213. (-) Sug. 269. 
 
 (u) Benson W.Lamb, 9 Beav. 502. (a) Soutkcomh v. Bishoi> of Exeter, 
 
 (x) Parkin v. Thorold, 16 Beav. 59 ; 11 Jur. 727 : 6 Ha. 213.
 
 424 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. without due previous notice (h) ; although notice even of 
 L_'__ immediate determination would, it is conceived, be so far 
 
 scmd without j^^^terial as that it would more strongly impose upon the 
 
 notice. & -^ i ^ 
 
 vendor the necessity of using expedition in proceeding to 
 enforce the contract (c) : and where the vendor has positively 
 refused to comply with the purchaser's valid requisition, the 
 latter may, after allowing the vendor a short time for con- 
 sidering whether he will persist in his refusal, or, perhaps, 
 even without giving any further notice, rescind the con- 
 tract (d) ; and the same principles would, it is conceived, 
 apply to notices by a vendor. 
 
 Time when _ Where a railway company had power at any time within 
 
 held to remain ^ i ./ i j 
 
 at option of scvcu ycars to take land for the purposes of the undertaking 
 and agreed to purchase land, and to pay interest upon the 
 purchase-money from the day they should commence their 
 works on the land until the purchase-money should be paid, 
 it was held that the vendor could not enforce specific per- 
 formance ; the company not having commenced their works, 
 and the seven years limited by the Act remaining unex- 
 pired (e). 
 
 Time, ^j-^j time, although of the essence of the contract by 
 
 althcnigh ' o •' 
 
 essential, may Original agreement, or made imperative in Equity by subse- 
 
 be enlarged or . , 
 
 waived : quent notice, may ije enlarged or waived, by subsequent 
 
 agreement, or by conduct of the parties amounting to 
 waiver (/). 
 
 by proceeding Thus, if a purchaser proceed in the purchase after the 
 
 jn purchase ; . . . 
 
 expiration of the time fixed by the contract (g), or limited 
 by his notice (A), it amounts to waiver (i) : the same rule 
 holds good as regards a vendor (/,•). 
 
 {b) Taylor v. Bromi, 2 Beav. 180 ; Sma. 444. 
 Wood V. Machu, 5 Ha. 158. (.7) Boycs v. LiddcII, 6 Jur. 725. 
 
 (r) See Guest v. Homfray, 5 Ves. (A) UVMv.^wjfAfa.L.RlOEq. 281; 
 
 818. see too Flint \. Hoorftn, 9 Ha. 618. 
 
 (c/) Xott V. Riccard, 22 Beav. 30". (/) Kinfj v. Wilson, 6 Beav. 124 ; 
 
 (e) Bodingtcn \. Great Western B. and see Ex parte Gardner, 4 Y. & C. 
 
 Co., 13 Jur. 144. 503. 
 
 C/) Cutts V. Thodcj/, 13 Sim. 206 ; (l-) Sec Per/g v. Wisdcn, IG Beav. 
 
 Nolca v. Lord Kilmorcy, 1 Dc G. & 239.
 
 ABSTRACT AND rREPAIlATION OF CONVEYANCE. 425 
 
 So, where a purchaser made no demand of the possession Chap. X. 
 of the purchased premises until a quarter before twelve at 
 
 .-. -i-ioTf. 1,- i^i-ii J. or by neglect 
 
 night on the day fixed for completion — part ol the property to require 
 consisting of cottages let to weekly tenants— this was held, possession. 
 at Law, to be a waiver of the condition as to time Q). 
 
 At Law, time, if fixed by an instrument under seal, cannot How not en- 
 be enlarged by an instrument not under seal (rn); so, if fixed Law. 
 by a written agreement not under seal, it cannot be enlarged 
 by word of mouth (/?) ; but, even at Law, a distinction is 
 dra^vn betAveen an alteration of the contract by enlarging 
 the time, and mere forbearance to insist upon its performance 
 at the time originally fixed (o) ; and, in one case, where a 
 lease stipulated that the rent should be ascertained by 
 valuation, and valuers were duly appointed but never fixed 
 the rent, and after the lessor's death a parol arrangement 
 was made between his representatives and the lessee, that if 
 the latter paid an occupation rent neither party should call 
 upon the other to perform the stipulations of the lease, it 
 was held that this aiTangement did not confiict with the 
 terms of the deed, and that there was a good consideration 
 for the promise to pay (p). 
 
 A conditional written waiver by a purchaser of his pre- Conditional 
 vious notice of abandonment, will be construed strictly 
 against the vendor (q). 
 
 And where the conditions provide for delivery of the ab- Time for ilo- 
 stract at a certain time, the purchaser waives them in Equity gt^^act, Imav' 
 bv receivino- the abstract after that time : or even, it would ^^^\f ^ '" 
 
 . ... Equity. 
 
 seem, by perusing it unnecessarily, or retaining it, when 
 delivered under circumstances which prevent its immediate 
 
 (0 Palmer v. Tcntj^Ie, 1 Per. & D. 57 ; Marshall v. Lynn, 6 Mee. & W. 
 
 379 ; see p. 381 ; 9 Ad & E. 508 ; 109. 
 
 and see Carpenter v. Blandford, 8 (o) O^le v. Earl Vane, L. li. 2 Q. B. 
 
 B. & C. 575 ; 3 Man. & R. 93. 275 ; on app. L. R 3 Q. B. 272. 
 
 (w) Rippingall v. Lloyd, 2 Nev. & (p) Nash v. Armstrong. 7 Jur. N. S. 
 
 M 410. 1060. 
 
 (n) Stoiccllv. Robinson, 'dBuv^.N.C. (q) Sec Stewart v. Smith, 6 Ha. 
 
 928 ; Stead v. Dawbcr, 10 Ad. &, E. 222, n.
 
 426 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 1. 
 
 rejection (/■). So, a vendor who receives and entertains the 
 purchaser's requisitions delivered after the time specified, 
 waives his right (unless expressly reserved) to insist on the 
 conditions (.s) ; and, as a general rule, either party relying 
 on time being essential, as a defence to a specific perfor- 
 mance, should make the point promptly (t), 
 
 And a condition foi' deliveiy of the abstract on a certain 
 day, is waived in Equity by a purchaser who does not ask 
 for it within a reasonable time before the day fixed for its 
 delivery (ii) : the same rule would, no doubt, apply to the 
 production of evidence, &c. : and it is conceived that a 
 waiver of time as respects matters (such as the delivery of 
 the abstract, &c.,) which inust necessarily precede completion 
 by a considerable period, v»^ould, in general, amount to a 
 waiver of the time (if any) fixed for completion. 
 
 So, a stipulation that time shall be of the essence of the 
 iitract, is waived by a purchaser who receives, and retains 
 without objection, an abstract upon the face of which it 
 
 Time waivud 
 
 jecting to Contract, is waived by a purchaser who receives, and retains 
 
 certain or 
 bighly pro- 
 bable delay in appears that a title cannot be made within the time fixed 
 completion. 
 
 for completion (x) ; or who, without an objection on that 
 specific ground, proceeds with the purchase under a know- 
 ledge that there is no I'easonable probability of the title 
 being perfected in time for completion ; as when it depends 
 upon the result of a hostile chancery suit (?/). 
 
 Protest. It seems doubtful whether a mere protest against the 
 
 delay will save the benefit of the stipulation (s) : it is con- 
 ceived that, until the expiration of the time limited for 
 completion, a purchaser may safely, and is indeed bound to, 
 
 ()•) See Scton v. Sladc, 7 Ves. 278 ; 
 HipwcU V. Knii/Jit, 1 Y. & C. 401 ; 
 and Marjennis v. Fallon, 2 Moll. 576. 
 
 {s) Oahdcn v. Pike, 11 Jur. N. S. 
 G66. 
 
 (0 Monro v. Taylor, 8 Ha. (52 ; a 
 Mac. & G. 713. 
 
 (u) Supra, and see Sug. V. & P. 
 14th Ed., p. 260. 
 
 {j-) See Iliimdl v. Ktwjld, 1 Y. & 
 C. 401, 419. 
 
 (//) IHiichc V. Curties, 4 Bro. G. C. 
 332 ; Wood v. Bernel, 19 Ves. 220 ; 
 and see Williams v. Glenton, L. R. 
 1 Gh. Ap. 200 ; 34 Beav. 528. 
 
 (z) See Sug. 265 ; but see Williams 
 V. Glenton, uhi supra, and p. 421.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 427 
 
 proceed in tlic matter so long as a reasonable probability Chap. x. 
 
 „ T . , . . , . Sect. 1. 
 
 exists of the title benig perfected m tnne ; taking care, 
 
 nevertheless, to protest in writing against the delay, and to 
 give notice of his intention to insist on his strict rights. 
 When the time has expired, or when previously it becomes 
 certain that the title cannot be perfected in time, he should 
 take no further steps in the matter, but should in writing 
 rescind the contract; and then, if inclined to give the vendor 
 the opportunity of completing within a reasonable period, 
 all subsequent communications should be expressed to be 
 without prejudice to the notice of rescinding, and should 
 take the shape of mere negotiations for a fresh agreement. 
 
 It may be observed, that even in a contract for, or con- " Month " ^ 
 
 •^ _ means ^))'(/;i(t 
 
 nected with, the sale of land, the term month means iirhnd fade a lunar 
 facie a lunar month ; although it may be construed a 
 calendar montli, if, from the context, or from the surroun- 
 ding circumstances, at the time of making the contract, such 
 appears to have been the intention of the parties (('). In 
 Acts of Parliament the term month is to mean a calendar 
 month, unless words are added showing that a lunar month 
 is intended (IS) ; and every Act is now to be deemed a public 
 Act, unless the contrary be expressly provided (c). 
 
 (2.) Ohjedmis to title; — negotiations upon and ivaiver section 2. 
 of ;^-iuhen possession taken amounts to ivaiver. objections to 
 
 title ; — nego- 
 . tiations npon 
 
 We have already {d) adverted to the eftect which negotia- and waiver of ; 
 
 tions with respect to the title may have upon the vendor's "j^iolTtakeu 
 
 rights under the ordinary conditions limiting a time for ^^^P"^*^ *° 
 
 taking objections, and giving him the power to rescind the Effect of nego- 
 
 , tiations upon 
 
 contract. condition as 
 
 to objections. 
 
 (a) Lany v. Gale, 1 M. & S. Ill ; {h) 13 & 11 Vict. c. 21, s. 1. This 
 
 Simpxon V. Manjitson, 11 Q. B. 23 ; enactment is not retrospective, 
 and see Lord St. Leonard's remarks, (r) Sect. 7. 
 
 V. & P. 257, on IliptvcU v. Kalyht, 1 ((') Sujm'i, p. 1(31. 
 
 Y. & C. 401.
 
 428 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 2. 
 
 Solicitor pur- 
 chasing cannot 
 object to title 
 wliich he ac- 
 cepted for his 
 client. 
 
 It may be observed that a solicitor purchasing from his 
 client, cannot insist upon any objections to the title which 
 he — or his then partner in the case of a firm — considered 
 unimportant when acting for the client upon his original 
 purchase (r). The rule, however, it is conceived, would not 
 preclude objections founded upon alterations Avhich had 
 been made in the Law in the interval betAveen the purchase 
 and the resale. Subject to this qualification, it would seem 
 to be also applicable to counsel. 
 
 Danger of 
 frivolous ob- 
 jections and 
 requisitions ; 
 
 Care should be taken not to make frivolous or unnecessary 
 ol;)jections or requisitions : objections clearly frivolous, made 
 and persisted in, would certainly indispose, even if they did 
 not prevent (/), a Court of Equity from enforcing the con- 
 tract at the suit of the purchaser. It perhaps seldom 
 happens, upon the perusal of an abstract, that his advisers 
 confine their requisitions within the strict limits of their 
 client's rights, or within the limits prescribed by the con- 
 ditions. Points which could not perhaps be absolutely in- 
 sisted on, but which are yet of real moment, may often, if 
 urged, be conceded, either from courtesy, or as the price of 
 the purchaser's relinquishing requisitions which, although 
 capable of being enforced, are yet of less practical impor- 
 tance. It is, however, material that no untenable requisition 
 should be tenaciously adhered to : for instance, where a 
 purchaser had required unnecessary evidence, and had in 
 consequence been refused that to which he was really en- 
 titled, he was not allowed his costs, although he obtained a 
 decree for specific performance ((/). In a modern case, when 
 a purchaser from a mortgagee alleged that the latter was 
 unable to deliver possession, and insisted on the concun-ence 
 of the mortgagor, although the mortgagee offered to deliver 
 possession, it was held, in a suit for specific perfonnance, 
 that the mortgagee was entitled to a decree with costs, if 
 then able to deliver possession ; and the Coui't refused to 
 inquire whether, when his offer to deliver possession Avas 
 
 (e) Beevor v. Sinq'tson, Taml. 61*. 
 (/) Sug. 352. 
 
 {[/) Ncuall V. Smith, 1 Jac. & W. 
 263.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 429 
 
 not accepted, he was able to perform it (h). It seems Chap. x. 
 difficult to support the latter branch of the decision. ' ^' 
 
 And, on the otlier liand, a purchaser should be careful not or ff ^ith- 
 
 iiiiii- ,,■!•,• ... .«, holding objec- 
 
 to hold back nnportant objections or requisitions ; if he tions, &c.,— 
 knowingly do so, the question may arise whether he has not ^n^funtn to 
 impliedly waived them (/) ; and where a purchaser puts a waiver, 
 vendor to expense in complying with requisitions, &c., and ^ '° ^°^^^' 
 then takes and insists on a fatal objection, which he 
 originally had the means of discovering, it seems probable 
 that if a bill were filed by the vendor for specific per- 
 formance and dismissed, the Court would not dismiss it 
 with costs, Avithout allowing to the vendor, by way of set-ofl-', 
 the expenses so incurred by him (/) ; although it does not 
 appear that he could otherwise recover them (/). 
 
 And, though it is not, perhaps, al)Solutely necessary that As to rcquir- 
 
 1 5 ' • 1 ••]• TIT 1 , iiii? concur- 
 
 a purchaser s original requisitions should go beyond matters rence of other 
 
 arising out of the title as abstracted, it is always desirable l^''^'"^*''^- 
 
 that he should, in the first instance, make any requisition 
 
 which he considers of importance as to the special form of 
 
 the conveyance, or as to the concurrence therein of parties 
 
 other than the vendor. In a recent case (in), it appears to 
 
 have been considered, though it was not necessary to decide 
 
 the point, that if the purchaser insists on a requisition as to 
 
 matter of conveyance which the vendor refuses to comply 
 
 with, and the purchaser on this ground, after due notice, 
 
 rescinds the contract, the Court cannot, if the requisition is 
 
 well founded, enforce specific performance at the suit of the 
 
 vendor. 
 
 We have already considered (n) what expressions will Purchaser's 
 
 prima facte 
 
 (7t) Allen v. Martin, 5 Jur. 239, R. Lord Bolton, 18 Vcs. 505, 514, 515. 
 
 (») See Lord St. Leonards' remarks (/) See Sug. 3G3, and ride infra. 
 
 on Mu'jcnnis v. Fallon, V. & P. 3i7 ; {m) Denny v. Ilaacocl-, L. E. G Ch. 
 
 and Stanton v. Tatlersall, 1 Sm. & G. Ap. 1. ; see judgnnent of L. J. James 
 
 529; Alexander v. t'rosbie 1 Jo. & p. 13. 
 Lat. 66G. (>i) Supra, p. 115, e( scq, 
 
 (I) See and consider Dcvcrcll v.
 
 430 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 2. 
 
 right to a 
 goud title. 
 
 negative the purchaser's f,iimd facie right to a marketable 
 title : he will, however, be bound, not only by express stipu- 
 lation, but also by a clear notice of the state of the title 
 given to him before entering into the agreement (a). 
 
 May l.e 
 waived. 
 
 But a purchaser may, after the contract, either expressly 
 or impliedly, waive, either wholly or in part, his right 
 (whether it be absolute or qualified) to a marketable title, 
 or to the usual evidences thereof 
 
 Purchaser not 
 bound liy 
 coun.sel's 
 opinion, un- 
 less he adopt 
 it. 
 
 Effect of ac- 
 ceptance of 
 title subject to 
 specified re- 
 quisition. 
 
 Acceptance of 
 title as ab- 
 stracted not a 
 waiver of the 
 right to have 
 it verified. 
 
 We have seen that a purchaser is not bound by his 
 counsel's approval of the title ; but that if counsel waive a 
 requisition or objection, the purchaser, adopting his opinion 
 and dealing with the vendor on that view, cannot afterwards 
 repudiate it {'p)- Where a purchaser, having taken several 
 objections, expresses himself willing to accept the title upon 
 a specified objection being removed, this waiver of the other 
 objections is merely conditional upon the removal of the 
 specified objection ; so that, if such objection be not removed 
 and a bill be filed against him for specific performance, he is 
 entitled to a general reference as to title (q) ; and although 
 the objection taken by the purchaser may not be his true 
 reason for refusing to complete the purchase, the Court will 
 not pry into his motives, but w^ill simply decide whether the 
 objection is tenable or not (v). Acceptance of the title, as 
 abstracted, is no waiver of the purchaser's right to have the 
 abstract verified («) : nor will the Court imply a waiver of 
 any objection which is not clearly raised by the contents of 
 the abstract (f) : nor does a purchaser, by waiving his right 
 to an abstract, necessarily waive objections to the title 
 which are otherwise knowm to him ((() : nor does acceptance 
 
 (o) Oyilcie V. Foljamhe, 3 Mer. 61. 
 
 ip) Supra, p. 309. 
 
 (9) Lestuiyeon v. Martin, 3 MyL & 
 K. 255 ; Sweet v. Meredith, 8 Jin-. N. 
 S. 638. 
 
 (r) Denny v. Hancocl, L. R. 6 Ch. 
 Ap. 1, 10. 
 
 (s) SoutJibi/ V. Hutt, 2 ]Myl. & C. 
 
 217. 
 
 (() Blucllow V. Laus, 2 Ha. 47 ; 
 Att.-Gen. v. Siticell, 1 Y. & C. C. C. 
 570; and see Bentley v. Crasen, 17 
 Beav. 204 ; Turquancl v. Rhodes, 37 
 L. J. Ch. 830. 
 
 ((') Sidebotfeim v. Barrington, 3 Jur. 
 947.
 
 ABSTRACT AND PRKPARATIOX OF CONVEYANCE. 431 
 
 of the title bind the purchaser, where the vendor conceals ^^^^P- ^• 
 
 some material fact (x). Where a purchaser of a freehold 
 
 and copyhold estate accepted the title, sulyect to the pro- 
 duction of " a declaration of identity of lands mentioned in 
 the deeds to those now sold," this was held to be a waiver 
 of his original right to have the tenure of a particular part 
 distinguished (y) ; and where a purchaser, in his answer to 
 a suit for specific performance, admitted as to his belief that 
 at the date of the contract the vendor had a title, this was 
 treated as an admission of the fact, which ho could not 
 afterwards question (z). 
 
 And waiver need not be expressed : it may be implied from Waiver may 
 either letters or mere acts of the party {a). ^ ^™^' ^^' ■"" 
 
 For instance, where a purchaser who had been let into From apolo- 
 gies for non- 
 possession — but which, as it was according to the contract, payment. 
 
 does not appear to be very material— and who had retained 
 the abstract for a considerable period without objection, and 
 had altered and let the premises, wrote a letter to his solicitor 
 for the purpose of its being communicated to the vendor, and 
 therein expressed his " vexation at the delay which had hap- 
 pened about payment," and his gratification "at the liberality 
 and patience shown" to him, this Avas held to amount to an 
 admission that the title was approved (h) : and the same From pay- 
 
 , . . 1 • 1 , 1 111 inent for, and 
 
 decision was come to in a later case, where a purchaser took dealin</ with 
 possession under the contract, paid part and gave security P^P'^^'^y- 
 for the residue of the purchase-money, and mortgaged her 
 interest under the contract (c). So where a purchaser had From reton- 
 been in possession of the estate, and had retained the abstract ahTtricV" 
 for five months without making any requisition as to title ; without 
 
 ° , _ nrilcing requi- 
 
 and then, while under notice l)y the vendor to complete within sitions. 
 fourteen days, merely rcquii(.'d the production of the deeds, 
 
 (x) Boiisfield V. y/w/yw, 33 Beav. (a) Infra, Ch. XVIII. 
 
 90. (h) Margravine of Ans/mch v. Nod, 
 
 (y) Davson v. Brinclcman, 3 De G. 1 Macld. 310. 
 
 & S. 37C ; 3 Mac. & G. .'33. (r) Ilaythm v. BvU, 1 Beav. 337. 
 
 (:) Phlpps V, Child, 3 Drew. 709,
 
 432 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. 2. 
 
 he was, under tlic special circumstances, held to have thereby 
 accepted the title as abstracted ((?). 
 
 Approval of 
 preparation of 
 conveyance, 
 when a waiver. 
 
 The preparation of the conveyance cannot, in general, bo 
 much relied on as evidence of waiver (e) : where, however, in 
 the case of a lease, the lessee, without previously requiring a 
 title to be shown, approved of a draft lease furnished by the 
 lessor, and took possession under the contract, he w^as held 
 to have waived all objections to the title (/) : so, where a 
 purchaser of a leasehold house, after transmission to him of 
 the original lease, prepared a draft assignment, and made 
 various objections as to repairs and other matters, but did 
 not require the production of the lessor's title, the Court 
 seems to have considered that he had waived its produc- 
 tion (g) : so, where requisitions on the title were made and 
 answered, and the purchaser sent to the vendor the draft 
 conveyance without jn-ejudice to the requisitions, it was held 
 that the purchaser, having taken no objection to the vendor's 
 replies, and the only negotiation pending between the parties 
 beino" as to the payment of the purchase-money, must be 
 deemed to have accepted the title (h) ; subject, of course, to 
 the requisitions being complied with, so far as the vendor, by 
 his replies, had agreed to comply wdth them. 
 
 Conditional 
 waiver. 
 
 At any rate, where the purchaser prepares and tenders the 
 draft conveyance, this cannot, as a general rule, amount to 
 w^aiver of objections on the title, except conditionally upon 
 the vendor's acceding to the proposed form of conveyance (/). 
 
 Attempt to 
 resell. 
 
 The fact of an intended lessee having advertised the pro- 
 perty for sale, although not considered conclusive, w^as relied 
 on in a modern case, as one among other evidences of his 
 
 (d) Bc'jy V. Wisden, IG Beav. 239 ; 
 ride supra, p. 409. 
 
 (f) See Sug. Sir, ; Eurrouglis v. 
 OaJclci/, 3 Sw. 159 ; Ilaruoodv. Bland, 
 1 ria. & Ke. 540. 
 
 (/) Warren v. liichardson, You. 1; 
 and sec Siwpsoti v, Sadd, 4 Dc G. M. 
 
 & G. 665 ; 2 Sm. & G. 469. 
 
 ('j) Clive v. Beaumont, 1 De G. & S. 
 397 ; Smith v. Cupron, 7 Ha. 191. 
 
 (/() Su-cet V. Meredith, 8 Jur. N. S. 
 637. 
 
 (/) Lulccy V. Illrjrjs, 1 Jur. N.S. 200.
 
 ABSTRACT AND PREPARATION OF rDXVKYANCE. 433 
 
 havino- waived the production of the lessor's title (/.) ; but, in Chap. X. 
 
 general, no great importance as regards waiver can be fairly 
 
 attached to the mere circumstance of the purchaser having 
 attempted to resell the property ; except that the actual or 
 attempted resale of merely a portion of the estate, may, as 
 between the original vendor and purchaser, show that the 
 latter did not consider such portion material to the enjoy- 
 ment of the residue (/). Where the purchaser has actually 
 contracted to resell, or has published conditions with a view 
 to a resale, the form of the contract or conditions may be 
 material : as it may lie fairly presumed that he can neither 
 have intended on the one hand to insist as against the 
 original vendor upon any objectic^ns, which he may have 
 guarded against on the resale, nor on the other hand, to 
 waive any to which the title would then remain liable. If, 
 under the sub-contract or conditions, the sub-purchaser is 
 to be bound to take the title as it stands, this would, it is 
 conceived, be strong evidence that the original purchaser 
 had waived all his objections to the title. 
 
 Possession of the property by the purchaser is the fact Possession ; 
 most frequently relied on as furnishing evidence of waiver 
 of objections to the title {m): its importance, however, 
 depends upon the circumstances attending its acquisition 
 
 and retention. 
 
 " 'V, 
 
 Where the possession is taken after the delivery of the taken after 
 
 , . P ' ^ • ' r- tlelivery of 
 
 abstract, and not in pursuance ot any special provision ot alistract. 
 the contract, it is irmnd facie a waiver of all objections 
 appearing on the abstract ; and it lies on the purchaser to 
 rebut this presumption {n). 
 
 session. 
 
 The strongest case against the purchaser is, where he Fordbie pos- 
 forcibly, or without the consent of the vendor, and without 
 
 (i) Simpson v. Sadd, 4 De G. M. 27 ; Flcetu-ood v. Greo), 15 Ves. 594 ; 
 
 & G. G65 ; 2 Sm. & G. 469. Blnks v. Lord Rolchy, 2 Sw. 222, 226 ; 
 
 (?) See KnatcJibuU v. Gruehcr, 1 Haydon v. BcU, 1 Beav. 337 ; Ddkr 
 
 MacUl. 170 ; 3 Men 124. v. Simonds, 5 Jur. N. S. 997. 
 
 (m) Fludijor v. CWln; 12 Ves. 25, (») DoXKH v. Skv.son^ 24 Beav. 631. 
 
 VOL. I. r F
 
 434! MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. being authorized hj the contmct so to do, takes possession : 
 
 ^^^'^^,' forcibly taking possession, was liekl in an early case to 
 
 amount to a waiver of an objection for want of title to an 
 important part of the estate (o), though compensation 
 appears to have been allowed. 
 
 Possession Possession, however, if taken in accordance with the clear 
 
 contract, or intention of the parties as evidenced by the terms or subject- 
 leavV""^°''' matter of the contract {p), or with the consent of the 
 vendor (q), is not in itself, as a general rule, any waiver of 
 the purchaser's right to a good title, or . of any pending * 
 negotiations upon the title : wdiere, however, the purchaser 
 was, upon his own application, lot into possession, this w^as 
 held to be a w^aiver of an objection (r/~., a right of sporting 
 over the property) which appeared upon the face of the 
 abstract delivered three months previously, l)ut which had • 
 not been made the subject of remark by the purchaser or his 
 solicitor (r). It is material here to ol)serve, first, that the 
 purchaser's general refjuisitions upon the' title appear (s) to 
 have been made prior to the application for possession ; and 
 secondly, that the ol)jection was of a permanent character, 
 and not probably capal)le of removal : the case may, perhaps, 
 be held to show that the acceptance of possession amounts 
 to an implied waiver of any known objection, which the 
 purchaser knows, or may reasonably believe, cannot be 
 removed ; or has not formed part of his previous requisitions 
 upon the title (supposing any requisitions to have been 
 already made). In a later case, the taking of possession, i 
 though held to be a waiver of all objections appearing on 
 the abstract, did not preclude the purchaser from objecting 
 to the title upon grounds which subsequently came to his 
 knowledge all mule (f) ; so, also, it was held to be no waiver, 
 
 (o) Calrraft V. Ri'tliid; 1 Yefi. , Inn. ir>9 ; Si 1)12^8(^)1 v. Sadd, itli sitprA, 
 
 221. n. i^')- 
 
 Oj) Dixon V. Astley, 1 Mer. 134 ; (/•) Burndl v. Brown, 1 Jac. & W. 
 
 Stevens v. Ouppy, 3 Euss. 171. 108. 
 
 {q) Vancnurer v. i?//.s-.<!, 11 Vc?. (s) See 1 Jac. & W". 171. 
 
 458, 4G4 ; BurroxujhR v. Oalky, 3 S\v. [1) Boivn v. Stcnson, 21 Beav. C31.
 
 AP.STRACT AND PREPARATION OF CONVEYANCE. 435 
 
 where tlicre was a Kerious misdescription of tlie property, Chap. X. 
 
 . Sect. 2. 
 
 not discovered until after possession was taken {a). 
 
 Where purchasers retained possession for two years, Longieten- 
 without reciuiring an abstract, which, according to the J^^Jj" ^^"'''^'' ' 
 agreement was to he paid for by themselves, if required, 
 this was held to be a waiver of their right to investigate 
 the title (,f). And where a purchaser has taken possession 
 of, and enjoyed the subject-matter of, the contract, the 
 Court will as against him, make every presumption in 
 favour of the validity of the contract (y). 
 
 The grant of a lease by the purchaser to a tenant in Wliat amounts 
 
 , , . . , , . ti) [)0KscsMii)n. 
 
 possession is equivalent to taking possession (;j : so is 
 acceptance of tlie keys of a house (a). 
 
 And, as it is not so universall}^ the custom to require the Distinction 
 
 )•! ipi -j-i -ii between pur- 
 
 lessor s title on the grant oi a lease, as it is to require the chase of lease- 
 title on the purchase of freeholds, smaller circumstances f "J[^|''jj|^f °^ 
 may satisfy the Court that the right has been waived in 
 the former case than would be sufficient to induce the same 
 conclusion in the latter (6) ; and the same principle would 
 apparently apply to the case of a purchase of leaseholds in 
 eases not within the Vendor and Purchaser Act, 1874. 
 
 Lastly, we may remark that a personal undertaking bv yncle^rtaking 
 
 •^ " _ '■ . hy sohcitor to 
 
 the vendor's solicitor to do certain acts for clearing up the perfect title. 
 title, will not be enforced by the Court under its summary '' 
 jurisdiction (c). 
 
 ((() Tuifjuand v. Rlunlex, 37 L. J. BarriiKjtoii, 1 Mont. & A. C55, 
 
 Ch, 830. (<') Guest v. Homfray, 5 Ves. 823. 
 
 (a;) SihLald v. Lowric, 18 Jiir. 141 ; {h) S!m2)S07i v. Sadd, 3 Eq. E. 2G3 ; 
 
 WalUs V. Woodyear, 2 Jur. N. S. 179. 4 l)e G. M. & G. 665 ; 2 Sm. & G. 409. 
 
 ((/) Port of London Assuraitce case (r) Fcert v. BufhcU, 2 Sim. 38 ; 
 
 5 De G. M. & G. 4G5 ride siq>7-d. 
 
 (~) Ex ixtrtc Sidthoiham ; In re 
 
 V T 2
 
 436 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 
 Section 3. 
 
 General rights 
 and liabilitits 
 of purchaser 
 in po^'i^e^^s^un. 
 
 (3.) As to the general rifjhts and liah'd'dies of a imrchaser 
 in possess io7i (d). 
 
 Where the purchaser is already in possession as tenant at 
 will the purchase contract puts an end to the tenancy (e) ; 
 and even in the case of a purchaser being tenant for a term 
 of years, it has been said that the relation of landlord and 
 tenant is determined by a contract between the parties for 
 the sale of the estate (/). But at Law a lease is not affected 
 by a contract which depends upon a good title being de- 
 duced (g) ; and it is conceived that where a purchaser, who 
 is in possession as tenant, and entitled to require a valid 
 title, acts pending the completion of the purchase merely as 
 he might properly have done if the tenancy were still sub- 
 sisting, his possession will not be deemed an acceptance of 
 the title. 
 
 Purchaser au- 
 Ihoi'ized to 
 enter into pos- 
 session and 
 acting as 
 owner docs 
 not waive ob- 
 jections. 
 
 As by altering 
 ])roperty. 
 
 It appears to be clear that a purchaser who is authorized 
 to enter into possession of the estate, may, to some extent, 
 act as owner without thereljy accej)ting the title. He may 
 take a fall of underwood in due course (h) : so, in the case 
 of a timber estate, a fall of timber would, it is conceived, 
 be no necessary acceptance of the title, although it might 
 be restrained at the suit of the vendor upon the ground of 
 its diminishing his security for the purchase-money (/) : nor 
 does it appear that any act of management of the estate in 
 a due course of husbandry, or in a fair exercise of the sup- 
 posed light of ownership (/.'), would be of importance : thus 
 it has been held by K. Bruce, V.-C, that, upon a purchase 
 of four acres of land, stubbing up an osier bed of nine 
 perches, levelling the land, and filling up a pond, did not 
 amount to a waiver of title (/). 
 
 {(l) Et ride infra, Ch. XVII. s. 2. 
 
 (e) Danieh v. Davison, 16 Ves. 252, 
 253. 
 
 (/) S. C, sedqumre. 
 
 (;/) Doe V. Stanion, 1 Mee. & W. 
 695, 701; Tarte v. Darh;/, 15 M. & 
 W. Cni ; Sng. 178, 
 
 (A) Burroughs v. OaUey, 3 Sw. 170. 
 
 {i) Supra, p. 251. 
 
 (A') 1 You. 506. 
 
 (/) Oshor7}e v. Harvey, 1 Y. & C. 
 C. C 116 ; and see Turquand v. 
 Modes, Z11...T. Ch. 830.
 
 ABSTRACT AXD PREPARATION OF COXVEYAXCE. 437 
 
 111 fact, Lord St. Leonards states without qualification (m), Chap. x. 
 
 tliat " acts of ownership after an authorized possession are [ 
 
 of no importance:" the reported cases, however, do not ^g^Srs"^^" 
 seein to support so wide a proposition ; nor can it be main- 
 tained upon principle (h). If the purchaser of a residential 
 property, let into possession pending the investigation of 
 the title, were to fell the ornamental timber, or were other- 
 wise to destroy or permanently alter for the worse any of 
 those features of the estate, which conferred upon it an ad- 
 ventitious value, it cannot be supposed that, at the present 
 day, the Courts would allow him to get rid of his bargain 
 upon the ground of the title being not stnctly marketable. 
 
 At any rate, it appears that a distinction must be made Whether so 
 between important acts of ownership committed previously ^f defect in 
 to, and those committed after, the discovery of a serious *'*^®- 
 objection to the title (o) ; for acts which materially aftect 
 the property are justifiable only under the purchaser's belief 
 that he is in fact the owner. And it is conceived that a 
 purchaser in possession may so act as to preclude himself 
 from ultimately rejecting the title, without necessarily 
 waiving his right to have the title perfected to the best of 
 the vendor's ability ; and also that a distinction must 
 generally be made between acts affecting residential or 
 building property and acts affecting mere agricultural land. 
 
 And where a purchaser, who had been long in possession pvetuution of 
 of the property, and had taken frivolous objections to the SSuo dls- 
 title, refused to receive any further explanations, and yet ^u«« ^^*^ ti^^'-- 
 retained possession, he was held to have accepted the 
 title ('/)). 
 
 An act which amounts to a waiver of the purchaser's Waiver of oh 
 right to reject a defective title, is not necessarily a waiver no\ ^f com- 
 of his right to compensation for the defect (q). pensation. 
 
 (»i) V. &P. 344. (o) Dixon v. Astlaj, 1 Mer. 135; 
 
 (»i) See Donovan v. Flicker, Jac- see 1 You. 507. 
 
 165 ; infra, p. 138 ; Wallis v. Wwd- ( p) Hall v. Laar, 3 Y. & C. 10(5. 
 
 ijcai; -2 Jur. N. S. 179. (v) y<^« Cakraft v. Roebuck, 1 Ves.
 
 438 
 
 MATTERS ]3F;rwEp:N dp:livery of 
 
 Chap. X. 
 Sect. 3. 
 
 Modification 
 waiver. 
 
 So, acts by a purcliaser in possession, Avliich might otlier- 
 wise have been considered as a waiver of objections to the 
 title to a portion of the estate, have been held to be modified 
 by his continuing to ask for the title (r). 
 
 Purchaser re- 
 jecting title 
 may be 
 ejected ■with- 
 out compensa- 
 tion for ex- 
 penditure. 
 
 A purchaser may (s), and as a matter of prudence should, 
 decline to take possession while the title is in dispute, except 
 under a special agreement : for, if he take possession and 
 then reject the title, he may be ejected by the vendor (t) ; 
 and cannot at Law claim any allowance for improvements or 
 lepairs ; nor will E(j[uity afford him any relief unless there 
 has been fraud on the part of the vendor (u). Upon taking 
 possession, he becomes, in the absence of any special agree- 
 ment (.r), tenant at will to the vendor, although there is a 
 stipulation for payment of interest until completion (,y) ; and 
 the right of the vendor to recover possession by ejectment 
 will be subject to the 7th section of 3 & 4 Will. IV. c. 27 (z). 
 When a purchaser in possession under the contract is advised 
 to rescind the contract, and assert a paramount title to the 
 propert}^ he is not bound to give up possession before asser- 
 ting such paramount title by making a formal entry (a). 
 
 What allow- If the Contract be rescinded in Equity, even on the ground 
 
 Xn xenL ^f fraud in the purchaser (/>), the Court will, in general, 
 
 sues in direct an allowance to be made to the purchaser for sub- 
 Equity '■ 
 
 Jun. 221 ; Jliiyhcs v. Jones, 3 De (i. F. 
 & Jo. 307, 31G. The clerk of the ven- 
 dor's solicitor has no implied authority 
 to bind the client to allow compensa- 
 tion ; Burncll v. Broicn, 1 Jac. & W. 
 168. 
 
 (r) See 1 Madd. 170; KnutchbnII 
 V. Grueber, 3 Mer. 124. And see as 
 to the taking of possession being an act 
 of part performance of the contract, 
 vifnl, Ch. XVIII. 
 
 (s) Fortehlow v. Shlrlcif, 2 Sw. 223. 
 
 (l) And the agreement will amoimt 
 to an acknowledgment of the Aendor's 
 title : Doe v. Burton, 16 Q. B. 807. 
 
 («) Sug. 347 ; Niclosoii v. Wonle- 
 xoorth, 2 Sw. 365. 
 
 (.e) fyaundcrs v. Musgravc, 6 B. & 
 C. 524. 
 
 {ij) Doc V. Capcrton, <J Car. & P 
 112 ; Doc V. Chamherhdnr, 5 M. & G. 
 14 ; Doc V. Jachov, 1 B. & C. 418 ; 
 Doc V. Lccih (t-ft, Co. 16 C. B. 796 ; 
 and see Doc v. Xcthl, 3 Man. & 
 G. 271 (case of exchange). As to 
 what will determme the tenancy, see 
 4 Jarm. Conv. by S. 463. 
 
 (:) Doc V. Hod; 4 JIan. & G. 30 ; 
 supra, p. 384. 
 
 (a) Southcomh v. Bishop of Exeter, 
 Ha. 213. 
 
 {h) See Donovan v. Frkker, Jac. 
 165; Nccdom V. Clarlson, 4 Ha. 104.
 
 ABSTRACT AND PREPAPvATION OF CONVEYANCE. 439 
 
 stantial iinprovoments and ropah-s (c) : this allowance, liow- Chap. X. 
 ever, when the sale is set aside at the suit of the pin-chaser 
 
 will not extend to improvements, or even repairs — except j^'prov?.'^' 
 snch as are essential to the preservation of the property ('/) m^uts, &c. 
 — made subsequently to the discovery of the matter on • 
 which he grounds his right to relief; nor to a greater extent 
 than is specifically prayed 1)y the bill (c). 
 
 On the other hand, it has been decided, that, where the Purchaser not 
 
 -, n . ■ I • p 1 J-- -11 liable for use 
 
 title proves defective, an action tor use and occupation will a,^,; occupa- 
 not lie against the purchaser for the time during which he Jj°°' "^ ^^^^^ 
 has been in possession under the contract (/) : but if, alter until it is re- 
 the contract is clearly abandoned, he retain possession, he J^*^*'^'^- 
 will be liable in respect of such subsequent occupation ((/). 
 Where a purchaser retained possession for eight jesus, with- 
 out payment, and refused cither to accept the vendor's 
 defective title, or to abandon the agreement, and upon a bill 
 being filed by the vendor, and the Master reporting against 
 the title, still refused to accept it, he was ordered to account 
 for the rents and profits and to pay the costs of the suit {h). 
 
 Where C, a sub-purchaser from B., entered into possession. Purchaser may 
 
 . , « . ,. ,. IT? maintain use 
 
 and then, pending a suit lor specific perlorniance by J^. and occupa- 
 against A. (the original vendor), was induced by A. to give J;^'^;^''^,''^'^"-'^' 
 up possession under a mistake of facts, it was held that, table title, 
 upon a decree being made for specific performance of the 
 contract between A. and B., and a conveyance being executed 
 by A., C. could maintain use and occupation for the time 
 during which he had been out of possession (/) : but it 
 appears to have been subsequentl}' held in the same case, 
 that although the equitable owner might maintain use and 
 occupation under the circumstances, yet such action would 
 
 ('•) iinc. 254. sell, 2 Taunt. 14j ; Seaton v. Booth, i 
 
 ((OSug.2.54. Ad.&E. 528. 
 
 (c) See Edv-nnhx. M'LcatJ, 2 Rw. (r/) 7/oirarc?6- v. S/un-', 8 M.&W.118. 
 
 287. (A) Kin'j V. K'uuj, 1 Myl. &, K. 142; 
 
 (/) WinkrhoUoM v. In'jham, 7 Q. B. Hope v. Hope, 22 Beav. 365. 
 611 ; and see Hcarnc v. Tomlin, 1 (1) Hull v. Vau;jkan, 6 Pri. 157 
 
 Pea. N. P. C. 253 ; Kirtland v. Poua- and see 7 Q. B. 617.
 
 440 
 
 MATTERS IJETWEExV DELIVERY OF 
 
 Chap. X. 
 Sect. 3. 
 
 not lie against the vendor, because the relation of landlord 
 and tenant was never contemplated between the parties (/.). 
 
 Liability of 
 purchaser in 
 respect of al« 
 teration of 
 premises. 
 
 Where a contract was rescinded upon the ground of fraud 
 in the purchaser, the latter was compelled to reinstate a 
 private house which he had converted into a shop (T) : the 
 fraud is not noticed by Lord St. Leonards, in stating the 
 case {m) ; and if, as may therefore be supposed to be his 
 opinion, this was not the ground of the decision, the decision 
 seems to be an authority for this very reasonable proposition, 
 viz. : that alterations by the purchaser, although not in them- 
 selves a waiver of title, will yet deprive him of the aid of a 
 Court of Equity in rescinding the contract, if they are such 
 
 as change the nature or character of the property, and do 
 not admit of reinstatement : or if he declines or is unable 
 
 to reinstate them. 
 
 His lien on 
 estate for jjur- 
 chase-money 
 paid. 
 
 If the contract be rescinded through want of title or other 
 default on the part of the vendor, the purchaser, if he have 
 paid all or any part of the purchase-money, will have a lien 
 for it, with interest (71), on the estate, even although he may 
 have taken an independent security (o), and also for his 
 costs of suit {'p) : but no such right exists where the contract 
 is void on the ground of illegality (q) ; or where the pur- 
 chaser is by Law disqualified from holding such an interest 
 in real estate (r) ; or where he himself abandons the con- 
 tract («). 
 
 In a modern case, where the vendor of an estate con- 
 
 {k) See 7 '^ B. <J18 ; Ten: v. Jones, 
 13 M. & W. 12 ; TuriKr v. Camcrun's 
 Co., 5 Exch. 932. 
 
 (!) Donovan v. Frickci; Jac. 165. 
 
 (m) Sug. 25 i, 255. 
 
 {n) Torrance v. Bolton, L. 11. 14 Et^. 
 124, 136 ; affd. L. R. 8 Ch. Ap. 118. 
 
 (o) See La con v. Merlins, 3 Atk. 1, 
 4 ; Mackreth v. Symmons, 15 Ves. 345. 
 Oxcnhani v. Esdailc, 3 Y. & J. 262 ; 
 Bunjess v. Whcate, 1 Ed. 211; Wythcs 
 V. Lee, 2 Jur. N. S. 7 ; 3 Drew. 396. 
 
 (p) Mkldklun V. Majnay, 2 H. & M. 
 233 ; Turner v. Marriott, L. R. 3 Eq. 
 744 ; and see Thomas v. Buxlon,'L.\l. 
 8 Eq. 120; Torrance v. Bolton, ubi 
 supra. 
 
 {q) Ewiny v. Osbaldlston, 2 Myl. & C. 
 53, 88. 
 
 ()•) See and consider Harrison v. 
 Southcotc, 2 Ves. Sen. pp. 389, 393 ; 
 
 Mackreth v. Symmons, 15 Ves., see 
 
 007 
 001 . 
 
 (*•) jDinn V. Grant, 5 De G. & S. 451.
 
 ABSTRACT AND PREPARATION OF CONVEYANCE. 
 
 441 
 
 tracted to be sold executed a mortgage upon it, of wliicli 
 notice was duly given to the purchaser by the mortgagee, 
 who did not interfere with the contract, and the purchaser, 
 who was allowed to take and retain possession, paid several 
 instalments of the purchase-money as provided l)y the con- 
 tract, but eventually (on grounds which were adjudged 
 sufficient) rejected the title, it was held that the puichascr 
 had a Hen upon the estate for the payments made and 
 interest, which might be enforced against the mortgagee (t). 
 
 Chap. X. 
 Sect. 3. 
 
 (4.) Vendor in i^ossession, hy altering i>ropfrt)/, avoids 
 the contract. 
 
 Any alteration of the subject-matter of the contract by the 
 vendor, in any particular which does not admit of compensa- 
 tion or reinstatement, as the fall of oi'namental timber (ii) or 
 other trees, will entitle the purchaser to abandon the contract. 
 The felling of ordinary timber by the vendor pending the 
 completion of the contract may be a matter for compensa- 
 tion (x) : and, as we have already seen, a vendor may, in due 
 course of husbandry, cut coppice wood and get in crops, 
 but in such a case the net j^rofits will belong to the pur- 
 chaser (u). 
 
 Section 4. 
 
 Vendor in 
 possession, by 
 altering pro- 
 perty avoids 
 the contract. 
 
 Material alte- 
 ration uf pro- 
 perty by ven- 
 dor may avoid 
 contract. 
 
 And in a case between vendor and purchaser the Court, it Felling orna- 
 is conceived, would consider whether the trees destroyed timber. 
 were in fact, or might reasonably be considered, ornamental ; 
 and would not — as in cases between tenant for life and 
 remaindermen — regard as ornamental, only trees which 
 were planted or left for ornament (z). 
 
 We ((t) have already considered the relatiN'e rights of the Alterations in 
 vendor and purchaser in the several events of the estate or failure of 
 
 consideration. 
 
 {t) Rose V. Watson, 11 H.L. Ca.ti?2. 
 (m) Marjcnnis v. Fallon, 2 Moll, 
 688. 
 
 (x) ,S'. C. 
 
 (y) Poole V. Shcrjold, 1 Cox. 273, 
 
 and rule suprii p. 247. 
 
 (:) See 2 Moll. 588 ; Marker v. 
 Marker, 9 Ha. 1 ; and see Webster v. 
 Donaldson, 34 Beav. 541. 
 
 {a) Su2m!, p. 245, ct acq.
 
 442 
 
 MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. 
 Sect. i. 
 
 increasiiiir or diiniriisliiii''- in value, or of the failure of the 
 consideration for, or subject-matter of, the contract, before 
 conveyance. 
 
 Section 5. 
 
 As to entry 
 and possession 
 by railway 
 companies be- 
 fore comple- 
 tion. 
 
 As to entry 
 and possession 
 by railway 
 companies. 
 
 Upon making 
 deposit, and 
 giving secu- 
 rity by bond. 
 
 (o.) As to enti-y and possession hi/ railvsoy companies 
 before completion. 
 
 By the clauses of the Lands Clauses Consolidation Act, 
 1845, which relate to the entry upon lands by the promoters 
 of the undertaking (6), it is, in effect, pro\dded, that the pro- 
 moters shall not, without the consent of the owners (that is, 
 all persons having any interest, although not in posses- 
 sion,) (c) and occupiers, enter upon any land (except for the 
 purpose of making surveys and other similar pui-poses speci- 
 fied in the Act,) until they have paid or deposited the pur- 
 chase-money or compensation for the same. If, however, 
 before the amount of pm'chase-money or compensation has 
 been determined by agreement, award, or a verdict, they are 
 desirous of entering, they are enabled to do so, upon making- 
 such deposit and giving such bond by way of security as are 
 specified in the 8oth section of the S & 9 Vict. c. 18, as 
 recently modified by the 3Gth section of the 30 & 31 Vict, 
 c. 127. The valuation to be made by the surveyor appointed 
 under the provisions of these Acts is to include the amount 
 of all damage and injuiy, so far as capable of estimation {d) ; 
 and the security must be for the value of aJd the land com- 
 prised in the notice of purchase given by the promoters mider 
 the 18th section, although the proposed entry be upon only 
 a part of such land (c) ; and should Ijc in the very terms of 
 the Statute (/) ; and if the bond first given be informal, or 
 insufhcient, a second may be substituted for it {(j). Before 
 
 ijj) Sect. 81 to 92. 
 
 (c) Itigc V. Btrmiiif/ham, dc. ii. Co., 
 3 De G. M. & G. 658. 
 
 (d) 30 & 31 Vict. c. 127, s. 36. 
 
 (e) Barker v. North Staffordshire J!. 
 Co., 2 De G. & S. 55 ; 5 E. Ctus. 401 ; 
 and see Hoskiiis v. Phillips, 5 llaU. 
 Ca. 560 ] 3 E.xcb. 168 ; and Dalcin v. 
 London and N. W. R. Co., 3 De G. & 
 
 S. 414. 
 
 (/) Poynder v. Grent Northern R. 
 Co., 2 Ph. 330 ; 5 R. Gas. 146 ; Lawj- 
 ham T. Same, 1 De G. & S. 486 ; 
 Wllley V. South Eastern R. Co., 1 M. 
 & G. 58 ; 6 Rail. Ca. 100. 
 
 (y) Willcrj V. South Eastern R. Co., 1 
 M. & G. 58.
 
 ABSTKACT AND PKEPARATION UF CONVEYANCE. 443 
 
 the recent Statute, no prior notice to the landowner of the Chap. X. 
 
 intention of the promoters to proceed under the Soth section — — 
 
 of the Lands Clauses Consolidation Act appears to have been 
 necessary {h) ; but now, by the 30 & 31 Vict. c. 127, s. 3G, 
 the company are bound to give to any party interested in, or 
 entitled to sell and convey, the lands in question, and not 
 consenting to the entry of the company, not less than s-even 
 days' notice of their intention to apply to the Board of Trade 
 for the appointment of a surveyor (i) : such a notice, how- 
 ever, does not amount to a contract binding them to take the 
 property (/). The entry and deposit may be made at any 
 time before the expiration of the period allowed for com- 
 pulsory purchase (/) ; but an entry subsequent to the recent 
 Statute cannot be made upon a previous valuation under the 
 Lands Clauses Act (in) : nor are the company justified in 
 proceeding under the Soth section of that Act, unless there 
 is an urgent necessity for immediate entry on the land (n) ; 
 and if they avail themselves of their powers under this and 
 the following sections, they cannot also enforce specific per- 
 formance of an 0(jreement previously entered into with 
 respect to the same lands (o) ; the service of a notice to treat 
 and entry into possession under the 8oth section, being 
 regarded as an aljandonment by the company of their rights 
 under the contract. It is conceived that if the company, 
 having entered into a binding contract for the purchase of 
 land, afterwards put in force their compulsory powers with 
 respect to the same land, the landowner may, at his option, 
 cither enforce the contract, or allow the price to be deter- 
 mined by a jury or by arbitration, as he may deem most to 
 his advantage. 
 
 The deposit is to remain as a security Ibr the performance Api'licaiion, 
 
 ■'■ &c., of dti- 
 
 {h) BrUhjcsv. Wilts, Somerset, and 20 L. J. N. S. 251, Q. B. ; ly Jur. 
 
 Weymouth R. Co., 11 Jur. 315 ; 4 E. 970. 
 
 Cas. 622. ("0 PiM v. Carnarvon and Lkm- 
 
 (!) Prior to the recent Act, the hcris R. Co., L. 11. 5 Eq. 190. 
 
 appointment rested with two justices. (n) S. G. 
 
 (A.) Qrkrson v. Cheshire Lines (o) Bedford and Camhrid>jc R. Co. 
 
 Committee, L. 11. 19 E-i. 83. v. Stanley, 32 L. J. Ch. 60 ; 2 J. & H. 
 
 {I) Worski/ V. South Devon R. Co., 7iG.
 
 4.^4; MATTERS BETWEEN DELIVERY OF 
 
 Chap. X. of the bond, and is to be applied inider the direction of the 
 ^^"^- ^- Court of Chancery {[>) ; and it will not be paid to the com- 
 pany without notice to the landowner, although the purchase 
 may have been completed by agreement, and the purchase- 
 money paid (q) ; and he is entitled to his costs of appear- 
 ance (r) : he does not, however, seem to have any lien upon 
 it for his costs payable by the promoters (s) : nor can he 
 oppose its repayment to the company, if he have repudiated 
 the proceedings of wdiich the original deposit, kc, formed a 
 part (t). 
 
 Entry, what It has been held that the making of a permanent tunnel 
 
 ^^' through the soil without disturbing the surface, is an entry 
 
 upon or user of the land within the 85th section of the Lands 
 Clauses Consolidation Act (u) ; so also is throwing an arch 
 over the land (oc). Placing waggons, rails, &c., on the land, 
 with the consent of the tenant, has been held to be no 
 entry (ij) ; but if permanent injury is done, though the entry 
 is with the tenant's consent, yet the owner may obtain an 
 injunction (s). Where the entry was merely for surveying 
 and setting out the line, and the company were no longer in 
 possession, the Court refused an injunction ((/). 
 
 Where land in Where the land is in mortgage, the deposit and bond should 
 
 po'JitE'ld''" be sufficient to cover all claims which the mortgagee may be 
 
 able dTimrS entitled to enforce ; and in one case where the company had 
 
 mortgagee. notice that land was subject to a mortgage, not payable till a 
 
 future day, and paid the purchase-money into Court upon the 
 
 ordinary valuation to the credit of the mortgagor, without 
 
 communicating with the mortgagee, they were restrained 
 
 ( p) Sect. 87. AUrincham R. Co., 5 Eail. Ca 552 ; 1 
 
 (7) Ex parte South Wales li. Co., 6 Exch. 723. 
 
 Kail. Ca. 151. (•^) See Puichin v. Blachvall R. Co., 
 
 ()•) See f.c parte Stevens, 2 Ph. 772; 1 K. & J. 35. 
 
 see however, Re Tottenham, d-c. R. Co., (//) Standish v. Mayor, tic, of Liver- 
 
 14W. E. 669. pool,\'DTQ.l. 
 
 is) Ex parte Stevens, 2 Vh. 11 -2 ■,\^ (z) Armstrong v. Waterford and 
 
 Sim. 165. Limerick R. Co., 10 Ir. Eq. R. 60. 
 
 {t)Jnrc Fooks,-2.UM. &.Li.3i>1. (a) Fooks v. Wilti<, Somerset, and 
 
 (it) RamsdcH v. Manchester and Weymouth R. Co., 5 Ha. 199.
 
 ARSTRAr'T AND PREPAPvATTOX OF CONVEYANCE. 443 
 
 from proceeclino; with their works, thouo-h not from retaining Chap. X. 
 
 . Sect. 5. 
 
 possession of the land (/>) : so, in a recent case, where equi- U — 
 
 table mortgagees were not formally served with notice of 
 the inquiry to assess damages, and took no part in it, and the 
 amount of compensation awarded fell short of what was due 
 on their security, it was held that they wore in no way 
 bound ; and that, in default of payment, they were entitled 
 as against the company and the landowner to a conveyance 
 of the land comprised in their security (c). 
 
 But where a person claims under a title altogether adverse Where laml 
 
 ^ claimed under 
 
 to that of the parties with whom the company have con- an adverse 
 tracted, Equity will not interfere, at his suit, to restrain the 
 company from committing waste (J) ; in such a case the 
 adverse claimant should bring an action of trespass or 
 ejectment. 
 
 Any wilful entry by the promoters, without consent and Penalty on 
 before payment or deposit, is made the subject of a 10/. entry. 
 penalty : and the retention of possession after conviction in 
 such penalty, renders them liable to a penalty of 251. 'per 
 dlerii («) : but the penalties are not incurred by an entry 
 after payment or deposit made to or in favour of parties 
 who were believed to be, but were not, actually entitled (/). 
 In case of an unlawful refusal by the landowners or occu- Remedy 
 piers to give up possession or perndt an entry, the promoters ol^ne^refus 
 of the undertaking can claim the assistance of the sheriff (r/) : ing- posses- 
 and a landowner who has by his silence and conduct en- 
 couraged a company to carry on their works, upon the 
 supposition that they were entitled to enter and take the 
 land in question, and who subsequently disputes the terms 
 
 sion. 
 
 (h) liaiil-en v. East and West India 1 Sim. N. R. 272 ; and see Alston v. 
 
 Locks F. Co., 12 Beav. 298 ; but see E. U. R. Co., 1 Jur. N. S. 1009. 
 
 Willianis V, S. Wales Jl. Co., where (c) Sect. 89. See Ilutvliinson v. 
 
 no difficulty appears to have been felt Manchester li. Co., 15 M. & W. 314 ; 
 
 as to the jurisdiction to restrain the and Hutchinson v. East Lancashire R. 
 
 company from keeping possession. Co., 3 Hail. Ca. 7S4. 
 
 (c) Martin v. London, Chatham, and (/) See last note. 
 
 Dover R. Co., L. E. 1 Ch. Ap. 501. {</) Sect. 91. 
 
 (J) Webster v. South Eastern R. Co..,
 
 44G MATTERS BETWEEN DELIVERY OF 
 
 thap. X. of the contract, is not entitled to an interlocutory injunction 
 ^t ict. 0. ^^ restrain them from so entering (//). Where a company, on 
 a purchase, agreed with the landowner that, if they should 
 require any additional land for the purposes of their railway, 
 it should be sold to them at a stated price, it was held that 
 they were authorized under the agreement to purchase 
 additional land at any time within the statutory period for 
 the completion of the works, although their compulsory 
 powers had expired (/). 
 
 Whether com- In a reccnt case, where a railway company, after the 
 can b7?:^r''" compulsory powers of their original Act had expired, oh- 
 cised after tainod another Act authorizing additional works, it was 
 
 time limited ^ i p 
 
 for completion ]^eld that a noticc to treat, given under the former Act, was 
 expired^ ' not available for the taking of land subject to the compulsory 
 powers of both Acts (],■). But the decision in this case was 
 mainly rested on the ground, that there was no evidence 
 that the land proposed to be taken was required for an}- 
 specific purpose authorized by the former Act. The Court, 
 however, was inclined to laj^ it down as a general rule, that 
 where a railway company is limited in time for taking land 
 by compvdsion, and also for completing their works, the 
 compulsory powers of purchasing should cease on the 
 expiration of the period limited for the completion of the 
 works (0- 
 
 Company after A Company which has duly entered under the 85th section 
 
 e^Inotl?'^^ cannot l»e ejected T)y the landowner at the expiration of tire 
 
 ejected. ^-^^^^ limited by the special Act for the exercise of their 
 
 compulsory powers, although the amount of purchase-money 
 
 remain unascei-tained, and the land be not conveyed (m) : it 
 
 (/<) Grecitlud'jli V. Manchester uml Qc) TucJimoiid v. NortJi London R. 
 
 Blrmlnham R. Co., 3 Mjl. & C. 7S4 ; Co., L. R 5 Eq. 352 ; affd. L. E. 3 
 
 1 E. Cas. 399 ; ^walne v. G. W. B. Ch. Ap. 679. 
 
 Co., 3 N. E. 109, 399 ; and see cases {/) Per Cairns. L.-C, L. E. 3 Ch. 
 
 cited in Daniell's Ch. Pr. 4th Ed. Ap. 681. 
 
 p. 1505 (''0 -^''^ f^' ^I'midcad v. N. Stafford 
 
 (0 Ranrjcley v. Midland R. Co., L. R. Co., 15 Jur. 94-1, Q. B. ; 16 Q. B. 
 
 E. 3 Ch. .A p. 30G. 52G; 20 L. J. 249; IIwlsou v. Leeds and
 
 ABSTRACT AXD PREPARATION OF rONVEYANCE. 447 
 
 is for the landowner to take the initiative under the 08th Chap. X. 
 
 1 L • ^ / \ Sect. 5. 
 
 section m order to have the amount ascertanied [ii). 
 
 The owner of land of which a railway company has taken Lien on rail- 
 possession, whether under the (Soth section or by agreement, pu/chase"^^^ 
 has a lien upon the land for his unpaid purchase and com- money, 
 pensation moneys, which the Court will enforce by sale, 
 even though the railway is actually made and ready for 
 traffic (o) : and the fact of a deposit and bond having been 
 made and given under the Soth section does not prejudice 
 his lien for the excess of the purchase and compensation 
 moneys over the sum deposited (p). 
 
 Where a railway company purchased land Ijy agreement 
 with the landowner and entered into possession, but after- 
 wards leased the line which they constructed to another 
 railway company, the vendor was held entitled, in a suit for 
 specific performance against l>oth companies, to a declaration 
 of lien for his unpaid purchase-money, and to have it 
 enforced by a sale (q), and the appointment <(d 'niterim of a 
 receiver (r). But the Court will not for the purpose of 
 enforcing the lien restrain the company from running trains 
 over the land until the sale is made (.s). 
 
 Where land is taken by a railway company and the Landowners 
 
 / '^ . . have no lien 
 
 purchase-money is ascertained by arbitration under the for costs of 
 
 arbitration. 
 
 Bmitford R Co., 16 Q. B. 796 ; Wars- (>•) Pell v. Northompton .0 Bunhimj 
 
 leif V. S. Devon R. Co., 20 L. J. (Q. B.) i?. Co., L. R. 2 Ch. Ap. 100 ; Cozcux 
 
 185 ; 17 Q. B. 840. v. Borjnor R. Co., L. R. 1 Ch. Ap. 594 ; 
 
 (ft) See Aihtms v. Bhtclcinill R. Co., and see cases cited in next note. 
 
 2 Mac. & G. 130 ; G Rail. Ca. 271. (s) Muans v. /. of Wiyld R. Co., L. 
 
 (o) Wiiuj V. Tottenham and Ihunp- R. 5 Ch. Ap. 414, reversing V.-C. 
 
 Rtead Jn. R. Co., L. R. 3 Ch. Ap. 740; James, L. R. 8 Eq. 653 ; see also 
 
 W(dljer V. Ware, Hiulham, and Bunt- Lycctt v, Stafford <L- Uttoxder R. Co., 
 
 infjford R. Co., L. E. 1 Eq. 195 ; 35 13 Eq. 261. See however J^arl St. 
 
 Beav. 52. Germans v. Cri/atal Palace R. Co., L. 
 
 (p) Walker v. Ware, ffadlnon, and R. 11 Eq. 568, where the company 
 
 Bnntin'jford R. Co., vli snpnl. was re.strained from continuing in 
 
 {q) Bishop of Winchester v. Mid possession. See further on this sub- 
 
 JIa,<ts R. Co., L. R. 5 Eq. 17. jcct (/(/'•"'. ''''i- -^'^^'- ■'^^' 1-
 
 i 
 
 448 MATTERS BETWEEN DEIJVERY, ETO. 
 
 Chap. X. Lands Clauses Consolidation Act, 1845, the vendor is not 
 ___^^Jj'l__ entitled to a lien on the land sold for the costs of the arbi- 
 tration payable to him l)y the company (t). 
 
 Mere notice Lands included in the company's notice, but not actually 
 
 does not bring n • i i i • i • 
 
 land witbin taken or actually afiected by the company, are not within 
 the G8th section, and the landowner's remedy is under the 
 preceding sections (it). 
 
 (t) Earl Ferrers v, Stafford <{• {u) BurTciiishau-\. B'inmngham, d:c., 
 
 Vltu-eter R. C<\, L. R. 18 Eq. '.-24. /?, Co., 5 Exch. 47r>.
 
 449 
 
 CHAPTER XI. Chap. XI. 
 
 AS TO SEARCHES FOR AXD INQUIRIES RESPECTIXG INCUM- 
 BRANCES. 
 
 1. WJnit inquiries sJtouhl ho iridih' of vendor's sioJic if orfi ; 
 and of supposed incund)r<(ncers, trusfecs, and tcno i^ffi. 
 
 2. ^VJ^<d searches should he made for incarnhrdnrcs, — laiu 
 respectinfj judgments^ cfr. 
 
 o. Time for inal'in'j srarches and inquiries. 
 
 (1). It has of late beconi(3 a very usual course, to incjuire of Section 1, 
 the vendor's solicitors, (as part of the general requisitions what in- 
 on the title,) whether they are aware of any judgment or be"made of" ' 
 other ineuinhrance affecting the property, or of any other vendor'.^ soli- 
 
 ^ . citors ; and ('f 
 
 niattei' not noticed in the abstract an<l affecting the vendor's supposed in- 
 al)ility to make a marketable title, subject only to the trustees, and 
 stipulations in the contract or conditions of sale ; and occa- t^"-"^"*^- 
 
 11 ,1 I'll! 1 n i'li 1 In(niiry as to 
 
 sionally whether the property is held under the title ah- incumbrances, 
 stracted and under no other title (a). Such an inquiry may J^deVf ven- 
 often save much useless expense ; and a favourable reply <lor's solici- 
 
 . . tors ; 
 
 not only adds to the security which the purchaser will 
 derive from the searches of his own professional ad\isers, 
 but will also remove any doubt as to his right to be paid 
 for the preparation of the conveyance, if such searches dis- 
 close incumbrances wliich cannot be got in. The incpiiry 
 should specify any matter the existence of which is specially 
 apprehended: and when there is reason to suspect the and of sup- 
 existence of any particular incumbrances, an application {jrancer"!"'" 
 should be made to the supposed incumbrancers : the motive 
 for the application should, of course, l)e stated, and the 
 
 (ft) As to the expediency of this before tlic Registration Conimission- 
 inr|niry, see ^[r, Christie's evidence ers, 1st Report, 
 
 Y<H. 1, ti G
 
 450 
 
 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XT. 
 Sect. 1. 
 
 p.artlos applii"! to Avill !);> hoiin;! ])y tlirir replies (/>) ; it docs 
 not, liowcver, appear tliat a mortgagee need answer any 
 inquiry respecting the particulars of his security, unless 
 the applicant is entitled and offers to redeem him (c). Jt 
 is l)etter to restrict the general requisition to an inquiry 
 whether the vendor is aware of any document, judgment, 
 or charge affecting the title or the property, not noticed 
 in the abstract, and which, // reiiuiin'mg undisclosed, may 
 prejudicially affect the purcliaser ; Lut the vendor's solicitors, 
 and, as a general Ijut not universal rule, the vendor him- 
 self, are bound to answer the inquiry even if umestricted (d). 
 
 Whether in- 
 cumbrancer 
 need commu- 
 nicate his 
 claim to in- 
 tended pur- 
 chaser. 
 
 An incumbrancer, it is said, need not voluntarily com- 
 municate the existence of his claim to a person whom he 
 knows to be about purchasing the estate (c) : this, however, 
 it is conceived, only holds good in cases where there is no 
 reason to suppose that the vendor is about to commit the 
 fraud of selling the estate as unincumbered : if, with know- 
 ledge of such a fraud being in progress, the incumljrancer 
 were to conceal his claim, Equity, it appears, would interfere 
 to prevent his setting up his right against the purchaser ; 
 and infancy, or coverture, would be no excuse {/) : a 
 fortiori, would he be postponed in Equity, if a direct party 
 to the fraud, or facilitating or encouraging its commission (/y) : 
 and, inasmuch as no prudent person buys an equity of re- 
 demption without communicating with a known incum- 
 l>rancer, it may 1)e conjectured that if a mortgagee, being 
 aware that tlie purchase was about to be concluded on a 
 certain day, and having received no inquiry from the pur- 
 chaser on the subject of the charge, were to allow him to 
 complete in ignorance of its existence, the Courts would be 
 
 (&) Ibhotson V. Ithodcs, 2 Vern. 554; 
 Slronrje v. Ilavkcs, 4 De G. M. & ii. 
 18G ; 4 De G & Jo. G32 ; vide suj'rd, 
 p. 98. 
 
 (c) See JJnydcn v. Bijnold, 2 Y. & 
 C. C. C. 390. 
 
 ((?) Solomon v. Davcy, V.-C. Hall, 
 March 1875 ; et ride supra, p. 301. 
 
 (f) Oshorn v. L((i, Mod. PC ; see 
 
 p. 97 ; Dolman v. Xolccs, 22 Beav. 
 402. 
 
 (/) Savage v. Foder, 9 Mod. 36 ; 
 Clare v. Earl of Bedford, 13 Vin. Abr. 
 536 ; and see Re Lash's trusts, L. R. 
 4 Ch. Ap. 591. And as to fraud by a 
 married woman, ride infra, Ch. XV. 
 s. 3. 
 
 (y) Berrisf.rd v. MUn-urd,-2 Atk. 49.
 
 SEARCHES 1m )R INfUMKRANCES, ETC. 451 
 
 disposed, on slight additional grounds, to treat such an Chap. XI. 
 iucLimhrancer as an accomplice of the vendor (//). ' 
 
 If the interest aliout to be purchased be merely eriuitable, Inquiry of 
 
 ^ J i ' trustees. 
 
 inquny as to incumbrances, should, as a matter of prudence, 
 
 be made of the trustees, or other parties in whom the legal 
 estate is vested ; and, as a general rule, notice should be 
 given to them of completion. Thus, notice to trustees for 
 sale of an assignment of a share of the sale pi'oceeds will 
 give priority, even though the estate is unsold, and the time 
 for selling has not arrived (/). Tlie same precaution is not 
 absolutely necessary where the subject-matter of the pur- 
 chase is an equitable interest in real estate, or in a chattel 
 real (/) ; but a solicitor who acts with a view to his own, as 
 well as to his client's safety, will in this, as in every other 
 doubtful case, use too much, rather than too little, caution. 
 Trustees are often unwilling to answer such questions, on Liability of 
 account of a case (/) Avhere a trustee, who (through forget- ^on^fjnYol"" 
 fulness as he subsequently alleged) denied the existence of a motion. 
 charge of which he had notice, was held liable to the pur- 
 chaser: it appears, however, that he told the purchaser 
 " positively and distinctly " (/u) that the vendor was abso- 
 lutely entitled, that he had "an undoubted right" to assign 
 the property (n) ; and, probably, a more guarded reply, one, 
 for instance, merely denying the present recollection of any 
 notice, would not involve a trust(.>e in similar liability. 
 
 And, as notice of a tenancy is notice of the tenant's inquiry of 
 equities (o), it is a proper precaution, where the property is *'-'"^"*'^- 
 not in hand, to inf^uire of the occupying tenants as to the 
 
 (h) And see Silison v. FklcJur, 1 (/) Burrowcs v. Loci; 10 Ves. 470 ; 
 
 Ch. 11. 3-2. Slim V. Croucher, 1 De G. F. & J. 
 
 (/) Lee V. Eowlett, 2 K. & Jo. 531 ; 518 ; Barry v. Croshey, 2 J. & H. 1. 
 Re llti'jhea' Trusts, 2 H. & M. 89 ; {m) 10 Ves. p. 476. 
 
 Foster v. Cockerelt, 3 CI. & F. 45G. And (/() lb. p. 475. 
 
 see as to notice infra, Ch. XV. s. 2. (o) See Lord Eldon in Allen v. 
 
 (k) See cases cited in last note, and Anthony, 1 Mer. 282—284 ; Daniels 
 
 Jones V. Jone.i, 8 Sim. G33 ; Wiltshire v. Davison, 16 Ves. 249 ; Bailey v. 
 
 V. Hahhits, 14 Sim. 76; Wilmot v. Jiichardson, 9 Ka,. 734; Wilbraham, 
 
 Pike, 5 Ha. 14 ; Hooper v. Harrison, v. Livcscy, IS Beav. 209 ; Cavandrr 
 
 2 K. & Jo. 103. V. Balieel, L. R. Ch. Ap. 79, 84. 
 
 c fi 2
 
 452 SEARCHES FOP. INC'T'MBRANOES, ETf. 
 
 Chap. XI. Gxtent and nature of their interests (p). It was stated in 
 
 ^^ — former editions of this work, tliat notice of the tenancy was 
 
 not necessarily notice of the tenant's e({uities, as between 
 vendor and purchasei'. The point, however, was recently 
 decided the other way by Lord Roniilly (q), and his decision 
 was subsequently followed in a case in the Common Pleas (r) ; 
 but in a still later case (.s) the Lords Justices, affirming the 
 decision of Sir Geo. Jessel, M.R., restored what is con- 
 ceived to be the true rule, viz., that the doctrine as to notice 
 has reference merely to equities between the purchaser and 
 the tenant after the completion of the contract, and has 
 nothing to do with the rights and liabilities of vendor and 
 purchaser pending completion. The obvious answer to the 
 reasoning in Lord Romilly's judgment in the case before 
 him al)Ove referred to is that it is not the duty of the 
 tenant, and it is the duty of the vendor to inform the 
 purchaser what it is that he is about to Ijuy. A description 
 Reference to of property as " now or late in the occupation of N. R. and 
 others," has been held not to affect the purchaser with 
 notice that the tenants held on leases for lives at low 
 rents (t). So, in another case, where a shop with a flat 
 roof was demised " as the same was late in the occupa- 
 tion of H. C," it was held that these words were inserted 
 in the description, merely for the purpose of identifying the 
 property, and not of limiting the operation to the deed ; and 
 that they did not amount to a notice of a right to the 
 occupation of the flat roof (?/) ; but a purchaser buying 
 the rmdivided share of a tenant in common in a house, 
 which the purchaser knows is occupied for business purposes 
 by a film in which the vendor is a partner, has notice that 
 
 (^)) 1 .Tarm. Conv, by S. 119. Ap. 447. 
 
 (q) James v. Lichfield, L. R. 9 Eq. (0 Hughes v. Jones, 3 De G.F.A Jo. 
 
 51 ; see also Penny v. Watts, 2 De 307. 
 
 G. & Sm. .lO] ; 1 Mac. & G, 150 ; {u) Marti/ >■ v. Laurence, 2DeG. Jo. 
 
 Wilhraham v. Liresey, 18 Beav. 200, & S. 261;rfmeH//f/(<eK.Bnice, L. J. ; 
 
 & 1 Hare, C2. ami see Pohfen v. Bastard, L. R. 1 
 
 ()•) PhilUps V. MlUer, L. R. 9 C. V. Q. B. 1.^)6, a case of devise. And see 
 
 1 c,G./lrK U^A o\ af^/u^l ISjoC.P.H-z^' fui-ther on this .sulijest, C'h. XV. s. 5, 
 
 (s) Cahalhro v. Hcnt;/, I.. R. 9 Cli. !nfr<K 
 
 occupancy.
 
 SEARCHES Full INCUMBllANCES, ETC. 453 
 
 the house is partnership property, should such Ije the Chap. XI. 
 .... Sect. 1. 
 
 tact {j-). 
 
 No iiKpiiries need l)e made of a person who has recently Where a 
 
 held, but relintpiished possession ot" the property (,y) ; if it is recently sivcn 
 
 clear that there lias been an intentional abandonment of "i' possession, 
 possession (z). 
 
 It may often l)e prudent for a purchaser to inquire Inquiry as to 
 
 undisclosed 
 
 whether any undisclosed easement, such as a way oi easements, 
 necessity or a right of drainage {((), exists over or through 
 the property ; such an easement may pass or be reserved by 
 implication, without express words (b) ; and the existence of 
 such an easement where it is patent, and no iiKpiiry has 
 been made respecting it, is no defence to a vendor's suit for 
 specific performance (c). 
 
 So, too, it may sometimes l)e well to iiKpiire Avhether As to undis- 
 there are any undisclosed covenants or conditions, restrictive tivecovenant:--. 
 of the enjoyment of the property in the hands of the pur- 
 chaser ((?). 
 
 So, a prudent purchaser will iiKpiire for the title deeds, As to title 
 and demand a satisfactory explanation, if any of them are °^®"'*- 
 not forthcoming. His omission to make such an inquiry 
 may perhaps tix him with notice of an ecpiitaljle mortgage 
 by deposit (c). So a mere physical fact may, it seems, Physical fact 
 
 may be notice 
 
 (..•) Ciimudcr V. B»Uvvf, L. IJ. 9 Ch. N. S. 925 ; Wcdts v. Kelson, L. 11. 6 
 
 Ap. 79 ; when the transaction was a Ch. Ap. 166 ; case of underground 
 
 mortgage. artificial watercourse. 
 
 {ij) Mikd V. Lanfjlcj, 1 Ivuss. & M. (c) See Okljleld or JJovhs V. Ixoionl, 
 
 39. 5 Ves. 508. 
 
 (:) Holmes v. Powell, 8 De G. M. & {d) See Parker v. Whytc, 1 H. & M. 
 
 G. 572. 581. 167 ; Robson v. Flight, 13 W. K. 195 ; 
 
 (a) And see Jlcrvci/ v. Smith, 22 Clements v. Welles, L. K. 1 ¥a[. 200 ; 
 
 Beav. 299, 5. C. onmotion, 1 K. &Jo. Morlandv. CooJc, L. R. 6 Eq. 252; 
 
 389 ; case of undisclosed smoke ease- Wilson v. Jlart, L. R. 1 Ch. Ap. 463 : 
 
 ment, and infra, Ch. XV. s. 5. a,in\siiv smdcoimider On-tir v. Willi<nas, 
 
 (Ij) Pearson v, Spenetr, 7 Jiu". L. R. 9 Ecj, 678. 
 N. S. 1195 ; Pijcr v. Carter, 1 H. & (c) Sugd. 767, and cases there 
 
 N. 916 J Ewart v, Cochrane, 7 Jur. cited.
 
 ■i.-i4; 
 
 SEARCHES FUR IXCUMr.RANCES, ETC. 
 
 Chap. XI. 
 Sect. 1. 
 
 (if a charge, 
 &c. 
 
 amoTint to notice of a charge, affecting the property; (.<J., 
 upon the purchase of land forming part of a district lying 
 beneath the level of the neighbouring sea, the purchaser 
 was held to be affected with notice of a private deed, under 
 which the owners of the land were liable to contribute to 
 the expense of keeping up a sea-wall (/) : so, the purchaser 
 of a house has been held to have notice of an agi'eement to 
 grant a smoke-easement, from the mere fact of there being 
 iburteen chimney-pots on the chimney stack, and only 
 twelve tiues in the house {g). 
 
 Section 2. 
 
 What searches 
 should be 
 made for in- 
 cumbrances; — 
 law respecting 
 judgments, 
 &c. 
 
 Liability of 
 solicitor omit- 
 ting to search 
 for incum- 
 brances, &c. 
 
 (2.) What searches should he made, for incumhrances; — LiwJ 
 vef^pedinrj jv<](j)iicnf>i, <i'C. 
 
 A solicitor is said to be liable to his client for any loss 
 occasioned by his omission to makt- any one of the numerous 
 searches, which may by possibility disclose matter affecting 
 the title (/a) ; unless, however, special circumstances render 
 such a course expedient, it has not been usual for convey- 
 ancing counsel, upon private purchases, to direct a search for 
 more than judgments (/), crown debts and accountantships, 
 ^;'.s i)en(lens<, and annuities (although the search for these is 
 now practically useless (/.) ) ; and also a general search in the 
 county register (if any), and in the Customary Court Rolls, 
 (if the property is copyhold;) and it may be doubted whether 
 a solicitor would be liable for an omission which is sanc- 
 tioned by general practice. At any rate, it is conceived, 
 that Avhere the title is laid before counsel, who advises a 
 
 (/) Mrivhiinl V. CuoJc, tih'i siiprd. 
 
 ij) Henx'j V. Sinith, 22 Beav. 209. 
 
 (/<) 1 Jann. Conv. p. 104 ; Watts v. 
 Porta; 3 El. & B. 743 ; see, as to neg- 
 ligence in stating a case for counsel's 
 opinion, Iresonv. Pearmnn, 5 Uowl. & 
 II . 687 ; as to negligence in jiassing a 
 defect in title Baikic v. Clumdlcss, 
 3 Camp. 17 ; and generally as to the 
 liability of a solicitor omitting to 
 make the usual searches, see Broolcs 
 V. Day, 2 Dick. 572 ; Parker v. Roles, 
 
 li C. r.. (i!>l. 
 
 (/) And now for writs of execution 
 under the 23 & 21 Vict. c. 38. Judg- 
 ments entered up against an insolvent 
 under the 1 & 2 Vict. c. 110, were 
 fretjuently omitted to be registered ; 
 it being considered doubtful whether 
 they required registration under the 
 Act. 
 
 (k) Under the 13 & 19 Vict. c. 15. 
 s. 12. Vide infra.
 
 SEARCHES i'Oli IXCUMI5RAXCES, ETC. 4") 
 
 search for certain spccitieil incuiubranccs, the solicitor need Chap. XL 
 not make a more extensive search, unless av.'are of some L_!_ 
 
 particular reason for so doing : but if to his knowledge such 
 reason exist, he is Ixnind to act upon it : c'j., it has been 
 said that he was bound to search the Insolvent (jourt, if he 
 had reason to suspect that the vendor had been insolvent, or 
 even if there w^as notice that he was or had been in em- 
 bari'assed circumstances (/) : and the fact of the solicitor 
 making in(|uiry on the point from a party whose known 
 interest it was to deceive him, has been held to be an 
 admission as acfainst himself that an etiicient search ought 
 to have been made {m). 
 
 And on purchases of lai-ge estates, or even of agricultural Drainage 
 land of moderate acreage, it is now prudent to search for 
 drainage and land improvement loans (7?-). These incum- 
 brances, Avhere they exist, take priority of all other charges ; 
 and, in more than one instance in the author's own ex- 
 perience, an omission to make the search would have in- 
 volved serious consequences. The expediency of making it 
 is not, however, as generally known in the profession as it 
 ought to be. 
 
 The full list of searches is a formidable, almost a prohi- 
 bitive, one ; comprising writs of execution, registered under 
 23 & 24 Vict, and 27 & 28 Vict. c. 112, judgments, crown 
 debts (o), decrees, orders, and Us pendens, registered under 
 the 1 & 2 Vict. c. 110, and 2 & 3 Vict. c. 11, and grants of 
 annuity and rentcharges registered under the 18 &; 19 A^ict. 
 c. 15 (p) ; searches for recognizances, and for grants of life 
 
 (/) By Erie, J., in Cooper v. Stephen- Office, are generally sufficient. Sec 
 
 son, 16 Jnr. 424 ; 21 L. J. (I B. 292 ; further on the subject, Dav. Conv. 
 
 a case of a mortg.age. ^rd ed. vol. 2, pp. 749, ct seq. ; and see 
 
 (m) S. C also the Mortgage Debenture Act 
 
 («) See 19 & 20 Vict c. 9 ; 24 & 186.^, 28 & 29 Vict. c. 78. 
 25 Vict. c. 133, and 27 & 28 Vict. (o) See now 28 & 29 Vict, c 104, 
 
 c. 114 ; see also 33 & 34 Vict. C. 56. s. 48 ; lands are not now bound by 
 
 Searches at the OHicc of the Inclosurc crown debts, until execution has 
 
 Commissioners, No. 3, St. James's issued, and been registered. 
 Sipiare, and at the Land liegistry {it) The place of search is tho
 
 4.")(J 
 
 yEARCHES FOR IN'CUMBRAXCES, ETC. 
 
 L hap. XI. 
 tject. 2. 
 
 As to search- 
 ing for judg- 
 ments — 
 general law 
 respectiuiT. 
 
 annuity and rentcharges registered under tlie former Acts (7), 
 for adjudications in bankruptcy, and for deeds of composition 
 or inspectorship under the Bankruptcy Act, 18G1 (r), and 
 also the county registers (.s), and manorial Court Rolls in 
 the appropriate cases, and also in many cases for drainage 
 and land improvement loans. 
 
 Of these searches, the most generally important is that 
 for judgments, and writs of execution issued under them; 
 and, although the necessity for making this search, or rather 
 the risk of omitting to do so, has been greatly lessened by 
 recent legislation, it is still necessary, in order clearly to 
 understand the law on this important subject, to consider it 
 briefly as it existed prior to the 1 & 2 Vict. 110, and then 
 the alterations which have been introduced by that and 
 later statutes. 
 
 As respects 
 purchasers, 
 &c., without 
 notice, law re- 
 mains as 
 1 & 2 Vict, 
 c. 110. 
 
 But want of 
 notice cannot 
 
 And here it may be proper to observe, that as against 
 purchasers or mortgagees who advance their money without 
 sbefore ^^otice of subsisting judgments, the 1 & 2 Vict. c. 110, is 
 rendered a dead letter by the subsequent Act of 2 & 3 Vict. 
 c. 11 (0 : so that, as respects such purchasers and mort- 
 gagees, the Law as it existed before the passing of the 
 former Act, is, with the above exception, alone important : 
 nor does registration under that Act amount to notice (nj; 
 unless a search is actually made (x) : at the same time it is 
 inexpedient to rely upon any presumed want of notice (//), 
 (especially where the same solicitor acts for both parties ;; 
 
 ofHce of the Court of Common Pleas, 
 Rolls Gardens, Serjeant's Inn, Chan- 
 cery liane. 
 
 (7) Place of search : the Inrolnicnt 
 Office, Chancery Lane. 
 
 ((•) Place of search : Court of Bank- 
 ruptcy, Basinghall Street. 
 
 (li) Place of search for IMiddlesex : 
 Bell Yard, Fleet Street, 
 
 (() Extended to judgments in the 
 Palatinate Courts, by 18 & 19 Vict. 
 c. 15. 
 
 («) See and cwisider 2 & 3 Vict. 
 c. 11, s. 5 ; so held in Robinson v. 
 
 Woodicnnl, 4 De G. & S. i>&2 ; llVs^ 
 hrouk r. Blijth, 3 El. & B. 737 ; L(uic 
 V. Jdct.vm, 20 Beav. 535 ; where it 
 was held that it was not incumbent 
 on the purchaser to search the re- 
 gister. 
 
 (.';) Procter v. Cooper, 2 Dre. 1 ; 
 affd. 1 Jur. N. S. 149. 
 
 (y) For this, among other reason?, 
 vk : that if judgments exist, and are 
 discovered by a subpurchaser upon a 
 resale, it may be impossible to satisfy 
 him of the original want of notice. 
 Freer v. Uesse, 4 I>c G. M. & G. 495.
 
 SEARCHES FOR INCUMBRANCES, ETC. 4.)7 
 
 and the propriety of a search hy an intended purchaser or Chap. XI. 
 
 mortgagee, may, practically, be considered chietiy with re- __JJL_ 
 
 ference to the extended ettect of judgments under the new in practice." 
 law. 
 
 Upon an dealt, under the old law, the judgment creditor JuJguients 
 , ^ . . . ' J o _ ^,,1 jer oi^ law 
 
 might take in execution a moiety, (or under two judgments — wliat they 
 of the same term an entirety {z), ) of the following property 
 of his debtor {<i) : viz., freeholds, land held in ancient 
 demesne, rents-chai'ge, estates granted by the Crown for the & njoiety of 
 maintenance of dignities, impropriate tithes, and terms for ' '' 
 
 years, including (perhajDs), leases of copyholds granted by 
 licence of the lord, or under a sj^ecial custom ; and this, 
 whether the same respectively were held in severalty, 
 coparcenary, or in common; and although they were ac- 
 quired subsequently to the judgment (6). 
 
 The right affected reversions, estates held by. a husband reversions ; 
 during coverture or by the curtesy, estates tail during the 
 life of tenant in tail, and estates held in joint-tenancy during 
 the life of the joint-tenant. 
 
 And, as to terms for years, either the moiety might be ^■''""^ ^'^^ 
 extended upon a single writ, or the entirety might be sold 
 as part of the debtor's chattels. 
 
 And under the 10th section of the Statute of Frauds, the lantls held in 
 
 ,.,,.. 11. . (• 11 111 Irut-t for the 
 
 sheriff IS empowered to deliver execution oi all such lands, aobtor. 
 &c., as any person or persons should be seised or possessed 
 of, in trust for the debtor, like as if the debtor had been 
 ticixcd of such lands, &c., of such estate as they l)e seised for 
 him at the time of execution sued. This provision has been 
 held not to affect trusts of terms for years (f), or equities of 
 
 (i) AU.-Gcn. V. Andrew, Hard. 23 ; ('') Brace \: DucJiess of Marlborough, 
 
 Doe V. Creed, 5 Bing. 327; (case of 2 P. Wms. 491, 492. 
 
 entirety taken by two creditors on (') I'rid. J. \5 ; Scott \. Schoki/, 
 
 writs tested the same day and term). S East, 4tJ7 ; nor could such a trust 
 
 (a) Prid. on J. 7, 8, 9. he taken on Ajl.fa., ib. ; and sec the
 
 SEARCHES FuR INCUMBRANCES, ETC. 
 
 Chap. XI. 
 Sect. 2. 
 
 redemption (</), or any equitable estate in which the debtor 
 has not tlie sole beneficial interest (e) ; or estates which, 
 although held in trust for the debtor at the date of" the 
 judgment, are aliened prior to execution (/'). 
 
 What they did But advowsous in gross, glebe, rents-seek, and copy- 
 not affect, holds (r/) (except, perhaps, as respects leases thereof), were 
 not extendible under the old law ; nor were the lands of a 
 tenant in tail, or joint-tenant, so extendible, except for his 
 life (h). 
 
 And it seems doubtful whether the exemption of copyholds 
 extended to customary freeholds (/). 
 
 Pocketing was 
 necessary as 
 against pur- 
 chasers. 
 
 Nor, as against purchasers (/.•), was a term for years bound, 
 until the writ was delivered to the sherift" (/) : nor did the 
 writ bind after it had been returned without a sale (iii). 
 
 And in order that a judgment might be binding as against 
 purchasers, or mortgagees, it had, unless it were a Palatinate 
 judgment, to be docketed under the Acts of William and 
 Mary ('>'); a very slight omission in the prescribed foimalities 
 as to docketing rendered the judgment void (o) ; but an old 
 undocketed judgment, if duly registered under the 1 & 2 
 Vict. c. 110, became valid under 2 & 3 Vict. c. 11, s. 5, against 
 
 recent case of Padwlch v. Dtdce of 
 Neiccastle, IS W. R. 8 ; but see, as 
 to attendant terms, Doev. Evayis, 1 Cro. 
 & M. 450 ; and see Doe v, Grecnhill, 
 4 B. & Aid. G84. 
 
 (</) Burdon v. Kennedy, 3 Atk. 
 739 ; Lystcr v. Dolland, 1 Ves. J. 431. 
 
 (c)See Doe v. Grcaihill, 4 B. & 
 Aid. 684 ; Ifftrris v. Booker, 4 Bing. 
 96; Forth \. Duke of Norfolk; 4 Madd. 
 505 ; JIulkcs V. Day, 10 Sim. 48. 
 
 (/) Hunt V. Coles, Com. E. 226 ; 
 Harris v. Puyh, i Biug. 335, 345, 
 Hifjfjins V. York Buildings Co., 2 Atk. 
 107; and see 1 J. & L. 634. 
 
 («/) See Scriv. on Copyholds, 5th. 
 ed. p. 39. 
 
 (/() Piid. on J. 8. 
 
 (/) See Scriv. on Copyholds, 5th 
 ed. p. 415 ; Mann. Exch. Pract. Re- 
 venue Branch. 2nd ed. 42, 350, 358, 
 359, 360 ; 3 Man, & R 332, 338. 
 
 {k) Scd aliter, as against the 
 debtor's personal representatives ; 
 lianken v. Harinod, 5 Ha. 215. 
 
 (/) Prid. on J. 13 ; Burdon v. 
 Kennedy, 3 Atk. 739 ; Causton v. 
 Mackleu; 2 Sim. 242. 
 
 (m) Williams v. Cniddock, 4 Sim. 
 313. 
 
 (n) 4 & 5 Will. & I\f. c. 20 ; made 
 perpetual by 7 & S Will. III. c. 36. 
 
 (o) Brandling v. Plummer, 8 De G. 
 M. & G. 747 ; 26 L. J. N. S. 326.
 
 SEARCHES FOR INCUMBRANCES, ETC. 
 
 459 
 
 Durcliascrs and ni()rt"'a"-ecs without notice, to the extent Cliap. XI. 
 
 which a judgment, duly docketed under the old law, would ^ 
 
 have had aglinsttheui (^0- By the 4& 5 William and Mary, fl^Sand"""" 
 c 20 no undocketed judgment was to have any preference administrators 
 
 ' .) o ... Ill admimstra- 
 
 ao-ainst heirs, executors, or administrators in the administra- tion of assets. 
 
 tion of assets. The 1 & 2 Vict. c. 110, did not c<mtain any 
 
 similar provision ; and the result of closing the docket under 
 
 the 2 & 3 Vict. c. 11, was t(3 revive the law as it existed prior 
 
 to the Statute of William and Mary ; thus making an 
 
 executor liable for a devastavit, if he paid a simple contract 
 
 debt before a judgment debt, even though he had no actual 
 
 notice of the latter (r/) ; but this omission has been supplied 
 
 by a recent Statute (/•). 
 
 Where the iudgment was intended to afiect land in a Kntry in local 
 
 •J => _ register. 
 
 Register County, it had to be entered in the local register ; 
 and the priorities of several judgments hiter se depended 
 upon the order of their registration (.s) ; so that a judgment 
 registered in the Common Pleas, but not in tlie Local Register, 
 was postponed to a subsequent judgment which was first 
 entered in the local register (/'). 
 
 The omission to docket or register, was, however, innnaterial But purchaser 
 
 -. , . was bound in 
 
 in E(pnty, if a purchaser or mortgagee advanced his money Ecpiity by 
 with actual notice, (either to himself or his agent,) of the docketed'"" 
 judo-ment (a). In a case already referred to, where an estate judgment, 
 was conveyed "subject to the charges and incumbrances 
 affecting the same," a judgment against the vendor, in 
 docketing which the " numljer roll " had n(jt been entered, 
 was held not to afiect the land : but the decision rested 
 entirely on the tpiestion Avhether the requisitions of the 
 
 (p) D<mi:dl\. Rmx, 11 Jur. N. S. & H. G85 ; 3 De G. F. & J. 318; 
 
 76.1. Xeve v. Flood, 10 Jur. N. S. G07 ; 
 
 (<l) Fuller V. licdman, 26 Beav. 600. 33 Beav. ^6. 
 
 (r) 23 & 24 Vict. c. 38, ss. 3 & 4. (0 See Huyhcs v. Lamlci/, 4 E. & 13. 
 
 (s) Prid. on J. 47, 49 ; see Johnson 274 ; Nccc v. F/ooil, 33 Beav. 666. 
 V. Holdmorlh, 1 Sim. N. E. 106 ; UO Brid. on J. 51 ; Davis v. Earl 
 
 Westhroolcc v. lUylhc, 3 El. & B. 737 ; of Strat/umrc, 16 Ve;i, 419 ; see Cock- 
 
 llu'jhs V. Lamlcu, 3 CI. K. 242 ; 4 hnrnc v. ^'rhjld, 6 Ir. Eq. K. 1 ; Sug. 
 
 El. &, B. 274 ; Bcnham v. Kcanc, 1 Jo. 521.
 
 4G0 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. Statute had been complied with ; and it does not appear that 
 
 — the purchaser had examined the docket-book (.«). 
 
 Ltjuity aided And Equity would assist a judgment creditor to the partial 
 
 judgment •iii-i , n ^ • t ^ • • I'll 
 
 creditor equitaulc interest oi his debtor, in those cases in which he 
 
 aWe'eatates!' would have been entitled to execution undei' the Statute of 
 Frauds in case the debtor had owned the entire beneficial 
 interest (y) ; but he was obliged to sue out an elegit before 
 filing his bill (5:). So, first suing out execution under a.Ji.fa., 
 he could obtain relief in Equity against the debtor's equitable 
 interest in a term for years (a). 
 
 Judgmeiithow ^\^^ judgment creditor acfiuired no preference in bank- 
 affected by Jo .^ 1 t 
 
 bankruptcy. ruptcy, unless execution had been sued before the issuing 
 of the fiat or commission (h) ; but the bankruptcy of the 
 vendor after conveyance, was no protection to a purchaser 
 against prior judgments (c). If, however, the vendor became 
 bankrupt before conveyance, the judgments were held 
 to be inoperative as against a purchaser from the assig- 
 nees (d). 
 
 Under the Under the Bankruptcy Act, ISGO (e), any execution or 
 
 attachment against the land of the bankrupt, executed in 
 good faith before the date of the order of adjudication, if the 
 person, on whose account such execution or attachment was 
 issued, had not, at the time of the same being so executed 1 y 
 
 (.1) £raiuUliij v. Pltuiuiicr, 8 De (Jr. Vict. c. 106, a. ISi ; which soctiou 
 
 M. & G. 747. was not repealed by 24 & 25 Vict. 
 
 (y) Prid. on J. 25. c 134; see Schedule G. Hutton v. 
 
 (z) Xeate v. Duke of Mavlboyough, Cooper, 2 Pr. E. 104 ; 6 Exch. 159 ; 
 
 3 Myl. & C. 407 ; Smith v. Ilmst, 1 Exparte Boijlc, 3 L>e G. M. & G. 515; 
 
 Coll. 705 ; S. C, 10 Ha. 30 ; Godfrcj and see Coote on Mortgages, 3rd ed. 
 
 V. Tucler, 33 Beav. 280. 68. See, too, Uohnes v. Tutton, 24 
 
 («) See Gore v. Bov.ser, 1 Jur. X. S. L. J. N. S. 346 ; Sug. 539 ; and see 
 
 392 ; Lanrjhornc V. Harlatul, 2 Jur. now 32 & 33 Vict. c. 71, s. 95. 
 
 N. S. 873. (<■) Baldv:in\. Belcher, 1 J. & L. 
 
 (i) Orlebar V. Fletcher, 1 P. Wms. 18, 25 ; «Z«(er, as regards a mortgagee; 
 
 737 ; Newland v. Anon, 1 P. Wms. WiUoch v. Veiryetn, Ir. Ch. R. 39 ; 
 
 92 ; Shper v. Fish, 2 Ves. & B. 145 ; White v. Baylor, 4 Dm. & W. 297. 
 
 Re Pervin, 2 Dru. & W. 179 ; Sharpe (d) Sharpc v. Ruahdc, 2 Ro. 192. 
 
 V. Roahde, 2 Hose, 192 ; 6 Geo. IV. (c) 32 & 33 Vict. c. 71, s. 95. 
 e. 16, s. 108 ; but sec 12 & lU
 
 SEARCHES FOR IXCrMBRANfES, ETf. 4G1 
 
 seizure, notice of any act of bankruptcy committed l)y the chap. XI. 
 bankrupt, and available against him, is to be valid, not with- ' ' "1 — 
 standing any prior act of bankruptcy ; and there is a similar 
 provision as respects any execution or attachment against 
 the goods of the bankrupt. 
 
 It followed from what has been above stated, that a pur- Purchaser 
 chaser who, before execution sued (/), got in an outstanding protected by 
 legal estate, (even a mere satisfied term,) or procured a decla- legal estate, 
 ration of trust in his favour by the trustee, or who, (as in the 
 case of a mortgagee purchasing the equity of redemption,) 
 was himself seised or possessed of the legal estate, was pro- 
 tected from judgments of which lie had no notice (;/) at the 
 time of his purchase : but, of course, where the outstanding 
 estate was less than the fee simple, it was no protection 
 against subsisting judgments of a date prior to its creation; 
 and the want of notice was essential in Equity. 
 
 Bat the exercise of a power of appointment defeated a Purchaser 
 
 ,■,..■< ,• £• ,■[ under iiower of 
 
 judgment entered up subsequently to the creation ot the appointment, 
 power ; and notice in this case was immaterial {h), for the Jy*j;''iUf,^^.',Jt,^ 
 iudo-ment onlv affected the estate limited until and in default notwith- 
 
 '> o J standing 
 
 of Appointment. notice. 
 
 A judgment entered up against the vendor, subsequently Effect of j ud^^- 
 
 . . , . nient after 
 
 to the contract but before conveyance, was nnmatenal u\ contract. 
 E(piity {}), except that it formed a lien upon such part (if 
 any) of the purchase-money as remained unpaid (/■) ; and an 
 ejectment against a purchaser in possession by a creditor 
 who had sued out an dcrjit on such a judgment, would be 
 restrained by injunction (l) : so, also, a trust for sale was not 
 affected by subsequent judgments against any party upon 
 
 (/) ^"o- •''•^^' (') ^*^^ ^^whje V. Li/.ielc)/, 4 Sim. 71, 
 
 {;/) Tnnstall v. Trapped, 3 Sim. 286, 75 ; Suy. 510. 
 
 299 ; Grcswohl v. Marsh'on, 2 Ch. C. (/■) Prid. on J. 21 ; Forth v. Bide 
 
 170. of Norfoll; 4 Madd. 505 ; see as to 
 
 (/() 3 Sim. 300 ; Eaton v. Sanxter, Bankruptcy, cases cited nuprd, n. {h). 
 
 6 Sim. 517 ; Skeelcs v. Shearhi, 3 {/) Brnnton v. Xeale, 11 L. J. 
 
 Myl. & C. 12 ; where an indemnity N. S. Ch. 8. 
 was taken against the judgment.
 
 4G2 
 
 SEARCHES FOR INf'UMBRANfES, ETC. 
 
 Chap. XI, 
 Sect. 2. 
 
 whom such trust was binding ; nor, if tlie trustee liad power 
 to give receipts, were the judgment ci'cditors necessary parties 
 to the conveyance (rii) : nor was it material that the sale was 
 not hy the trustees, hut ]>y the Court (/() : and the same, it 
 is conceived, is the rule under the new law. Even a volun- 
 tary settlement in favour of third parties is unaffected hy a 
 subsequent judgment against the settlor (u) : Ijut a bare 
 voluntary trust for sale, when merely equivalent to an 
 authority to sell, for the settlor's own benefit, would, it is 
 apprehended, be subject to judgments entered up against 
 him, prior to a binding contract being entered into by the 
 trustee. 
 
 Extended 
 
 It-^Al opera- 
 tion of jllllg- 
 
 raeiits under 
 1 & 2 Vict, 
 c. 110. 
 
 By the lltli section of the 1 & 2 Yict. c. 110, (as modified 
 by the 2 and 3 Vict. c. 11, and 3 & 4 Vict. c. 82,) a judgment, 
 duly registered, entitles the creditor to take in execution, — 
 except as against purchasers, moi'tgagees, or creditoi'S Q»>) who 
 became such before the first day of October, 1838, and also 
 purchasers and mortgagees without notice {q), — an entirety 
 of " all such lands, tenements, rectories, tithes, rents, and 
 hereditaments, including lands and hereditaments of copy- 
 hold or customary tenure, as the person against whom 
 execution is so sued, or any j^erson in trust for him, shall 
 liave been seised, or possessed of, at the time of entering 
 up (r) the said judgment, or at any time afterwards ; or over 
 which such person shall, at the time of entering up such 
 judgment or at any time afterwards, have any disposing 
 
 (m) Lvcli/e V. Lii-Hhi/, 4 Sim. 70 ; 
 and see Fosta- v. Blaclstone, 1 M)l. 
 & K. 307 ; Broune v. Cavendish, 1 J. 
 & L. GOG, 628, ct scq.-, Jiohtnsoii v. 
 IMycr, 13 Jur. 846, V.-C. E. 
 
 (//) Alexander v. Croshij, 1 J. & L. 
 C72. 
 
 (<>) Bearan v. Lord Oxford, 2 Jur. 
 N. S. 121 ; 6 Ue G. M. & G. 507. 
 
 {j)) Which seems to inclnde simple 
 contract creditors ; In re Pevrin, 2 
 Dm. & W. 147 ; decided contra on 
 the English Act, Siiiq^son v. Morlcy, 
 2 K. & J. 71 ; see judgment, and dis- 
 
 tinguish In re Perrin. 
 
 {q) 2 & 3 Vict. 0. 11,-s. 5. 
 
 (r) That is, the day on which 
 judgment is originally signed in the 
 Master's book, not the day on 
 which the roll is carried in and the 
 judgment is entered of record ; and 
 this, although the original entry in 
 the Master's book be subsequently 
 amended on a revision of the taxation 
 of costs : Fisher v. Budding, 3 ifan. 
 & G. 238 ; Nevton v. Grand Junction 
 11. t'o., 16 M. & W. 143; but see 
 Pierce v. Derry, 4 Q. B. 035.
 
 SEARCHES FOR IXfUMnRANCES, ETC. 
 
 4G3 
 
 power, which ho mi^-lit, without the assent of any other Chap. XI. 
 
 . r" )) Sect. 2. 
 
 person, exercise for his own henent. 
 
 And hy the 13th section of the 1 & 2 Vict. c. 110, (as f;;;fj^f]J^^p^. 
 modified by the same Acts,) a registered judgment is, (except ration ..f judg- 
 
 •^ . , . ments muler 
 
 as against purchasers or mortgagees without notice, or pur- i & o Vict, 
 chasers, mortgagees, or creditors, who became such before ''• 
 1st October, 1838,) made to operate as a charge upon all 
 lands, tenements, rectories, advowsons, tithes, rents, and 
 hereditaments («) (including lands and hereditaments of 
 copyhold or customary tenure) of or to which such person 
 shall at the time of entering up sucK judgment, or at any 
 time afterwards, be seised, possessed, or entitled for any 
 estate or interest whatever, at Law or in Equity, whether 
 in possession, reversion, remainder, or expectancy, or over 
 which such person shall at the time of entering up such . 
 judgment or at any time afterwards, have any disposing 
 power which he might without the assent of any other 
 person exercise for his own benefit (f) ; and is to be binding 
 as against the person against whom judgment shall be so 
 entered up, and against all persons claiming under him after 
 such judgment; and is also to be binding as against the 
 issue of his body and all other persons whom he might, 
 without the assent of any other person, cut off and del:»ar 
 from any remainder, reversion, or other interest in or out of 
 any of the said lands, tenements, rectories, advowsons, 
 tithes, rents, and hereditaments: and every judgment 
 creditor is to have such and the same remedies in a Court of 
 Equity against the hereditaments so charged by virtue of 
 the Act, or any part thereof, as he would be entitled to in 
 case the person against whom such judgment shall have 
 been so entered up had power to charge the same here- 
 ditaments, and had, by writing under his hand, agreed to 
 charge the same, with the amomit of such judgment debt 
 and interest thereon : Provided that no judgment creditor 
 shall be entitled to proceed in Eipiity to obtain the benefit 
 
 (s) As to leaseholds being included {t) Which excludes a power of tes- 
 
 in this section, see Avisoii v. Ifuhncs, taraentary appointment, scinble. 
 1 J. & 11. 530, 544.
 
 404 SEARfHES FOR IXf'UMIiRANfMS, ETC. 
 
 Chaji. XT. of such chargo until after the expiration of one year from 
 ^ecuj^ the time of entering up such judgment (r). This proviso 
 
 does not render it necessary that a year shall have elapsed 
 since registration (.';). 
 
 Jmlginents By the 23 & 24 Vict. c. 38, after reciting that it was 
 
 2rvic?c"38! desirable to place freehold, copyhold, and customary estates 
 on the same footing with leasehold estates, in respect of 
 judgments, statutes, and recognizances, as against purchasers 
 and mortgagees, and also to enable purchasers and mort- 
 gagees of estates, whether freehold, copyhold, or customary, 
 or leasehold, to ascertain when execution has issued on any 
 judgment, statute, or recognizance, and to protect them from 
 delay in the execution of the writ, it Avas enacted, that no 
 judgment, statute, or recognizance, to be entered up, after 
 the passing of the Act, should affect any land of whatever 
 tenure, as to a hand fide purchaser for valuable considera- 
 tion, or a mortgagee, (whether such purchaser or mortgagee 
 had notice or not of any such judgment, statute, or recog- 
 nizance,) unless a writ, or other due process of execution 
 of such judgment, Szc, should have been registered as therein 
 mentioned, l)ef()re the execution of the conve3'ance or mort- 
 crao-e to him, and the payment of the purchase or mortgage 
 money l»y him; but it was provided that no judgment or 
 writ of execution, although duly registered, shoidd aftect 
 any land as to a bond fide purchaser or mortgagee, unless 
 such execution should be put in force within three calendar 
 months from the time when it was registered. The Act 
 also established a register for writs of execution, and pre- 
 scribed a new mode of registration, viz., in the name of the 
 execution creditof ; thus rendering a double search neces- 
 sary Qj). The Act also restored to heirs, executors, and 
 administrators, in the administration of their ancestors', 
 testators', and intestates' effects, that protection against un- 
 registered judgments which was inadvertently taken from 
 
 (») See Smith v. Hiirst, 1 Coll. 705. {'A Sect. 2. But see now 27 & 28 
 
 (x) Dei-hyshlrc, dc B. Ok \. Bain- Vict. c. 112, s. 3. 
 ?,rW/^ ir.r.cav. 14f;.
 
 SEARCHES FOR IXCUMI'.RANCES, ETC. 4G." 
 
 thoin ))y tlio closini-- of the docket nndcr the '2 & o Vict. Chap. XI. 
 
 . . Sect. ^ 
 
 e. 11 (:) ; and provided for the re-registration, as against 'Jl 
 
 them, of judgments every five years (a). 
 
 By the 27 & 28 Vict. c. 112, after reciting tliat it was Judgments 
 
 rt- • p 1 1 1 111 under the 27 & 
 
 desirable to assnndate the law afiectmg Ireehold, copyhold, 28Vict.c.l]2. 
 
 and leasehold estates, to that affecting purely personal 
 estates, in respect of future judgments, statutes, and recog- 
 niz;ances, it was enacted, that no judgment, statute, or 
 recognizance, to be entered up after the passing of the Act, 
 should affect any land of whatever tenure, until such land 
 should have been actually delivered in execution by virtue 
 of a writ of eJe(jit or other law^ful authority, in pursuance 
 of such judgment, statute, or recognizance; and the 8rd 
 section provides for registration in the manner prescribed 
 by the 28 & 24 Vict. c. 88, (save only that it is to be in the 
 debtor's and not the creditor's name ;) and dispenses with 
 prior or other registration of the judgment, statute, or re- 
 cognizance ; and under the 4th section the judgment creditor, 
 having complied wdth the requisitions of the Statute, can 
 apply to the Court of Chancery for a summary order for 
 sale (/>). 
 
 It is beyond the scope of this treatise to attempt an 
 exhaustive inquiry into the law upon this intricate subject ; 
 and, in the following remarks, it is proposed briefly to con- 
 sider, 1st, what are judgments within the meaning of the 
 recent Acts ; 2ndly, what property of the debtor they affect ; 
 Srdly, what are the present remedies of the judgment 
 creditor ; and 4thly, how far the recent statutory provisions 
 affect the law of vendor and purcha.ser. 
 
 And, first, what arc judgments within the recent Acts : — 
 
 By the 18th section of 1 & 2 Vict. c. 110, decrees and <^'citain de- 
 
 •' crees and 
 
 (-) Sect. 3 ; and see FuUe^- v. Red- and 18 & 19 Vict. c. 15. 
 man, 26 Beav. 600, and suprd, p. 459. (h) VkJc ivfm, 
 
 (cf) Sect. 4 ; and see 2 & 3 Vict. c. 11,
 
 40G 
 
 SIvVUCIlES roil IXCUMCKANCES, ETC. 
 
 Chap. XI. 
 Sect. 2. 
 
 orders have 
 the effect < >f 
 juflsments. 
 
 •Tuflgments of 
 inferior Courts 
 may be re- 
 moved. 
 
 Deoroes and 
 orders of Pala- 
 tine Conrt. 
 
 oi'doi's (tf (Jourts of Eiiiiit}^ and all viilcis of Courts of 
 Common Law, and all orders of the Lord Chancellor, or of 
 the Court of Review (while it existed) in matters of hank- 
 ruptcy, and all oi-dors of the Lord Chancellor in matters of 
 lunacy, wherehy any sum of money, or any costs, charges, 
 or expenses, shall be payable to any person, are to have the 
 effect of judgments. And by the 22nd section, judgments, 
 &c., of certain inferior Courts of record may be removed 
 into the supeiior Courts ; and are there to be registered ; 
 and thereupon are to become binding as judgments of such 
 superior Courts (r) : and l:)y the 1 3 & 14 Vict. c. 43, s. 24, 
 the jDro visions of the 1 & 2 Vict. c. 110, as to decrees and 
 orders in Equity, are made applicable to decrees and orders 
 of the Palatine Court of Lancaster; but before the latter 
 can affect any land as against purchasers, mortgagees, or 
 creditors, full particulars of the cause or matter, and of the 
 decree or order made therein, are to be left with the pro- 
 thonotary of the Court of Common Pleas at Lancaster, and 
 entered Ijy him in a l)ook kept for the purpose. 
 
 The decree 
 order must 
 for the pay 
 ment of 
 money. 
 
 be 
 
 But, in order to bring a decree or order of a Court of 
 Equity within the 1 &• 2 Vict. c. 110, it must he one 
 " whereby any sum of money, or any costs, charges, or ex- 
 penses, shall be payable to any person." Thus, a decree for 
 an account, and for payment of what shall l)e foinid due 
 thereon, does not entitle the j)erson in whose favour it is 
 made to obtain a charging order, pending the taking of the 
 account ((?) ; so, where a decree was obtained against an 
 executor for payment of a certain sum to his testator's 
 estate, with which he was to be charged in taking the 
 accounts in a pending administration suit, it was held that it 
 did not constitute a judgment debt(^) ; so, a decree directing 
 payment to the credit of a cause, is not within the Act (/') ; 
 so, a decree directing payment of costs is n<>t a charge upon 
 
 (f) See 18 & 19 Vict. c. lo, s. 7. 
 
 {(I) Clmhnck v. Holt, 2 Jur. N. S. 
 918 ; distinguish Dulx of Beaufort v. 
 PhUUps, 1 De G. & S. 321. 
 
 (f) Garner v. Bvitjfjs, 4 Jur. N". S. 
 
 230. 
 
 (/) Ward V. Shal-eshafl, 1 Dr. &S. 
 269, 272. But see GMs v. Pike, G 
 Jur. 40-,.
 
 SKAllCllES FOll INCUMBl^VNC'ES, ETC. 407 
 
 land, until tlic costs have lieen taxed, and the decree re"is- Chap. XL 
 
 Sect 2 
 tered {(j) ; and a certificato of the chief clerk, finding money '— — 
 
 due, is not an "order for payment" (//) : so, the person who 
 seeks to <3nforce as a charge on land a rule of a Court of 
 Common Law directing payment of money, must be the 
 person to whom the money is payal)lc under the rule (?'). 
 
 It lias been held, on the construction of the 25th section Orders of Pro- 
 of the 20 & 21 Vict. c. 77, that an order of the Court of ^'^°. ""^ ' 
 
 of Divorce 
 
 Probate does not, merely by being registered, constitute a Court ; 
 valid charge on land, which can be enfoi'ced in Equity (/') ; 
 l)ut in a later case, on the analogous section in the Divorce 
 Act, (20 & 21 Vict. c. 85, s. 52.) where a decree in a divorce 
 suit was registered under the 1 & 2 Vict. c. 110, the Court 
 of Common Pleas refused the husband's application to have 
 the entry expunged, leaving him to his remedy (if any) in 
 Equity {I). A judgment of a County C'ourt, constituted of County 
 under the 9 & 10 Vict. c. 95, does not fall Avithin the 22nd 
 section of the 1 & 2 Vict. c. 110 {m). Under the Bankruptcy of Bankruptcy 
 Act, 1861, (24 & 25 Vict. c. 134,) costs might be awarded ^''"''*''" ' 
 which were made recoverable in the same manner as costs 
 awarded, by rule of any of the superior Courts at West- 
 minster ; and under the Act of 1869 there is a similar rule 
 as to costs awarded by the London Bankruptcy Court {n). 
 The provisions as to registration contained in the 23 & 24 
 Vict. c. 38, were by the Act of 1861 made applicable to an 
 order of the Court of Bankruptcy directing payment of o^ ^°"'*f ^/ 
 costs (o). By the 24 & 25 Vict. c. 10, s. 15, decrees and orders 
 of the ('Ourt of Admiralty, for payment of money, are to 
 have the effect of Judgments ; and the persons, to whom the 
 
 (fj) NoHhcUffe w Warhurloii, ]0 !)1S ; 13 ('. B. N. S. 641. 
 
 W. R. G.35. {m) Mordon v. Holt, 1 Jur. N. S. 
 
 (k) Lord Manfifidd v. Oylc, C> Jur. 215; 10 Excli. 707. See a.s t© County 
 
 N. S. 419. And see Skaio v. Ncale, Court Orders, Bennett v. Powell, " 
 
 20 Beav. ir>7 ; 6 H. L. Ca. 581. Drew. 326. 
 
 (/) Crou-ther v, Crowther, 2 Jur. (n) See General Eules under the 
 
 N. S. 274. 32 & 33 Vict. c. 71, s, 186 ; see also 
 
 {Jc) Pratt V. BkU, 4 C4iff. 117 ; 32 s. 187. 
 
 L. J. Ch. 21 ; affd. ib. 144. (o) 24 & 25 Vict. c. 134, s. 213. 
 
 (/) Ex imrtc Ilohlcn, 9 Jur. N. S. 
 
 }i H 2
 
 408 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. money is directed to l)e paid, are to have tlie ( 'oimnon Law 
 ___!liri rights of jiido-ment creditors. 
 
 Meaning of gy the 5th section of the 28 & 24 Vict. c. 88, and bj' the 
 
 the tei-m jiidg- n ^t. ^ •, i • i i >> 
 
 ment nnder 2nd section of the 27 & 28 Vict. c. 112, the term " judgment, 
 ^1^^864.^^*^ in each of those Statutes, is to inchide registered decrees, 
 orders of Courts of Equity and Bankruptcy, and otlier orders 
 having the operation of a judgment. The term is not 
 expressly limited to such decrees or orders as direct the 
 payment of money, or costs, charges, and expenses; but 
 there can be but little doubt that such restrictive construc- 
 tion is the correct one. 
 
 Secondly, as to what property of the debtor is affected hy 
 judgments under the new law : — 
 
 What property Under the provisions of the 1 & 2 Vict. c. 110, and the 
 
 unS'^thl^new succeeding Statutes, a creditor may now, (except as against 
 
 la^'- purchasers and mortgagees prior to the 1st October, 1888, 
 
 and purchasers and mortgagees without notice,) take under 
 
 an dofjH the entirety (instead of a mere moiety) of the 
 
 debtor's property : and this right extends to copyholds, 
 
 estates over which the debtor has only a general power of 
 
 appointment, and leasehold estates ; upon all of which the 
 
 Judgment an iudoment can operate : and it is said, that where the interest 
 
 immediate •' o x . , . , 
 
 charge in in a term of years is merely equitable, it is subject to the 
 
 '^"' ^' legal as well as the equitable remedy {p). Where the 
 
 property is of such a nature that it cannot be taken in 
 execution, as, e.g., an advowson, an estate in remainder, a 
 reversionary interest, or an equity of redeuq^tion, the judg- 
 ment, or the writ of execution, prior to the 27 & 28 Vict. 
 c. 112, operated as an immediate charge upon the estate, 
 instead of being, as formerly, a mere general lien {q) ; but 
 under that Statute, actual delivery in execution is now 
 necessary to create a charge (-)•). 
 
 {p) See Sug. 524 ; 1 Dru. & W. (q) See 1 & 2 Vict. c. 110, s. 13 ; 
 
 182; Gorev. Boivser, 1 Sm. & G. 1, Gore v. Bonscr, and VudHsw Morrh, 
 
 biit see Coote on Mortgages, 3rd ed. uhl suprd. 
 
 44 ; and see Wallis v. Aforrin, 10 Jnr. (r) As to what is a delivery in exe- 
 
 N. S. 741. cntion of an equitable interest, see
 
 SEAIK HKS FUR INCUMBRANCES, ETC. 469 
 
 It is also observable, that the estate of a joint-tenant is Chap. XI. 
 
 7 . ,. . • Sect. 2. 
 extendible as against the jus axcrescendi ot a surviving . 
 
 joint-tenant, and not, as formerly, merely for the life of the ]^-^f t^^f^^j^t . 
 
 del)tor. 
 
 It also seems probable that the judgment creditor of a of _tenaiit in 
 tenant in tail, (Avhere there is a protector,) can take the land 
 in execution as against the issue in tail ; and that the judg- 
 ment creditor of a tenant in tail, (where there is no pro- 
 tector,) can take the land in execution, not only as against 
 the issue in tail Ijut also as against remaindermen; and 
 there can Ije no doubt as to the rights, in Equity, of a judg- 
 ment creditor of a tenant in tail. Where a judgment creditor 
 tiled a bill to realise his charge against a tenant in tail in 
 possession, the latter was ordered to execute a disentailing 
 deed (n). 
 
 It also seems prol)able that the joint donee of a poAver of Joint ijower— 
 
 . .11, 11 • L i- • 1^'^^^ affected, 
 
 appointment, who is entitled to any estate or interest in 
 
 default of appointment, cannot, Ijy concurring in an exercise 
 
 of the power, defeat the lien of his judgment creditor upon 
 
 such estate or interest ; as to do so would be to derogate from 
 
 what is by the Statute made eijuivalcnt to his own personal 
 
 assurance. 
 
 In Han is v. DacUoii, Shadwell, \ A\, with reference to juiymcut a 
 the 13th section of the 1 & 2 Vict. c. 110, said, that he ^trt|!agJa.bt, 
 " could not conceive any set of Avords better adapted to ^^J^'jjijjj"'^;;^';'^ 
 describe every possible interest in lands of every possible laml. 
 description ; they are as comprehensive as possible, and 
 include lands of e\-(My tenure, except, perhaps, lands held in 
 ancient demesne:" lie then decided that a registered judg- 
 ment operated as a charge upon the l)eneiicial interest of the 
 debtor (the grantee of a personal annuity) under a trust for 
 sale of leaseholds for better securing the payment of the said 
 annuity : so, an annuity charged upon, or issuing out of land 
 
 Hnttoa \: Ifai/'vooil, L. K. U Ch. Ap. (*) Lcids v. Dumvmbe, 20 Bcav. 
 
 ■2-29, and infi-fl, p. US. 39S.
 
 470 HEAECHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. has been held to be an interest in land within the Statute (t) ; 
 _ a like decision was come to in Mussell v. M'CuUoch (u), as 
 
 respects a gross sum of money secured by covenant, and by 
 declaration of charge ; and the same, it is conceived, must be 
 the rule as to a legacy cliarged upon land. Where a trust 
 fund was invested upon mortgage, a judgment creditor of one 
 of the cestuis que trust was held entitled to a charge on the 
 debtor's share of moneys payable out of the rents of the 
 mortgaged property ; Ijut not on his share of the interest 
 paid by the mortgagor under his covenant, and not taken 
 from rents (x). 
 
 Practical in- The decision in Russell v. M'Cidloch seemed to establish, 
 
 conveniences 
 
 resulting from in theory, the necessity of searching for judgments against a 
 
 the doctriue. , • rv» , i • , p i ■• 
 
 mortgagee, upon paymg oii or takmg a transfer or release oi 
 the security — and a like necessity in the case of any dealing 
 with an annuity, or, it is conceived, a legacy, respectively 
 charged on land ; and it was very difficult to avoid the con- 
 clusion that the same precaution ought in strictness to have 
 been taken in paying oft', or assigning, or taking a release of 
 a registered judgment debt; it being the statutory equivalent 
 to an equitable mortgage; and that if judgments were found 
 registered against a mortgagee, or against the owner of an 
 annuity or legacy charged on land, the like searches should 
 have been made in the names of his judgment creditors, and 
 in like manner against their puisne judgment creditors (if 
 any) ; and so on, in an infinite series. The practical incon- 
 veniences and absurdity of this excessive development of the 
 doctrine laid down in Harris v. Davison, are self-evident, 
 and were in fact the maiii argumeiit adduced for disregarding 
 that decision — a decision which, it may be remarked, seems 
 fvdly warranted by the words of the 1 & 2 Vict. c. 110. 
 Partially re- There being thus evidently a nodus vlndke d'lqnus, the 
 
 mediedby 18 _ _ ° -^ . . , ,, 
 
 & 19 Vict. Legislature intervened, and by the lltli section of the 18 & 
 
 '^^ '^' ■ ■ 1!) Vict. c. 1-3, enacted that "where any legal or equitable 
 
 (() Younyhusband v. Cii^liuriu, 1 IVwul, 4 Ha. bl. 
 Do G. & S. 209. (,'■) Alison v. J/vlnic^; 1 J. & H. 53U: 
 
 ('■) 1 K. & J. 013 ; .and see Chcrc v.
 
 SEARCHER FOR IXCU-MBRAXCES, ETC. 471 
 
 estate or interest or any disposing power in or over any Chap. XI. 
 lands, tenements, or hereditaments, shall, under any convey- "iUl — 
 
 ancc or other instrument executed after the passing of this 
 Act, become vested in any person as a purchaser or mort- 
 o'ao-ee for valuable consideration, such lands, tenements, or 
 hereditaments shall not be taken in execution under any 
 writ of elegit, or other writ of execution, to l)e sued upon 
 any judgment, or any decree, order, or rule against any 
 mortgagee or mortgagees thereof, who shall have been paid 
 off prior to, or at the time of the execution of, such convey- 
 ance [or other instrument as aforesaid — Q.y.] nor shall any 
 such judgment, decree, order, or rule, or the money thereliy 
 secured, be a charge upon such lands, tenements, or heredita- 
 ments [which, or any legal or equitable estate or interest in 
 or disposing power o\'er which shall become — Qjj ], so vested 
 in purchasers or mortgagees, nor shall such lands, tenements, 
 or hereditaments [which, &c. — Qy. lit ante] so vested in pur- 
 chasers or mortgagees be extended or taken in execution, or 
 rendered liable under any writ of extent, or writ of execu- 
 tion, or other process issued by or on behalf of her Majesty, 
 her heirs or successors, in respect of any judgment, statute, 
 or recognizance obtaine<l against or entered into by, or incpii- 
 sition found against, or obligation or specialty made by, or 
 acceptance of office by any mortgagee or mortgagees, whereby 
 he or they had, hath, or have become or shall become a 
 debtor or accountant, or debtors or accountants to the 
 Crown, where such moitgagee or mortgagees shall have 
 been paid off prior to or at the time of the execution of 
 such conveyance [or other instrument — Qij.'\ as afoi'esaid." 
 
 This enactment, it will be observed, does not expressly Ivemarkson 
 
 , ,. T .,. . ' 18 & 19 Vict, 
 provide for the several cases of Crown debts and halulities v. i?, ,s. ii. 
 
 and judgments affecting annuitants, legatees, judgment 
 
 creditors themselves, vendors claiming a lien in respect of 
 
 unpaiil puichase-mouey (,y), and all othiT persons lia\ing 
 
 pecuniary charges upon laml. e.\ef]»t mortgagees; I'ut there 
 
 (//) See auil couskler Hood v. Unod, wy^vilw^ of ]7 & 18 A'iet. e. 113. 
 L! •lur. X. S. tiS t ; and tho similar
 
 47- SEARCHES Kol; I.\('UM1'.EAX(ES. ETC 
 
 Chap. XI. can Ix' little or no douLt that pei'sons claiming, not a.s niort- 
 
 Sect. 2. .- 1111 1 ..1 
 
 gagees strictly so called, Ijut under securities by way ot con- 
 
 veyance in trust to sell, or operating only to create a charge 
 or incumbrance, without conferring anj- right of foi'e- 
 closure (z), come within its provisions. Doubts may, how- 
 ever, be suggested whether it provides for the simple case of 
 paying off a mortgage, without reference to a sale or a 
 re-inoi'tgage ; or fur the case of a transfer, where the mort- 
 gage is not prt id of, but the debt is assigned and kept on 
 foot, as is often desirable even upon a sale ; or for the case 
 of judgments against a puisne mortgagee whose concurrence 
 is required to a sale of part of the land, although the 
 purchase-money is received by the first incumbrancer; or 
 for the case of a mortgagee releasing part of the land in 
 consideration of a substituted security being given for the 
 debt, or in reliance on the sufficiency of his remaining 
 security. Nor does it appear, so clearly as could be wished, 
 that a sale l;)y a mortgagee, under the usual power, of part 
 of the land, when the sale realizes only a poi'tion of the 
 mortgage debt, is within the enactment ; but there can be 
 no reasonable doubt that it would be held to be so ; as the 
 mortgag(^e Avould in fact be paid ofi", qua the particular land 
 comprised in the sale. It has been held under this section 
 that, whether the mortgage be prior or subsequent to the 
 passing of the Act, a bond fide purchaser acquires a valid 
 title as against registered judgment creditors of the mort- 
 gagees, provided that the mortgage be paid off previously 
 to, or at the time of, the execution of the conveyance {o). 
 
 Judgment is a ^ judgment entered up against the vendor after a contract 
 
 charge on im- -jo x o 
 
 paid purchase- for Sale, as formerly, may be enforced against the unpaid pur- 
 
 ' ' chase-money; although execution cannot be levied upon it (Jj) : 
 
 and, upon a sale by a mortgagee, the suiplus proceeds of sale 
 
 may be resorted to for the discharge of judgments entered 
 
 up against the mortgagor suljsecpieiitly to the mortgage (c). 
 
 (:) Sue Bell v. Carter, 17 Beav. 11 ; (b) Bruan v. J'crruU, 4 Beav. 5S5. 
 
 Ill re Undericood, 3 K. & Jo. 745. \r) livlintioii v. llalycr, 10 Jur. 846': 
 
 (a) Orcarcs v. WiUon, 4 Jur. N. S. 14 Jur. 7S4, V.-C. S. 
 S02 ; 25 Beav. 434.
 
 SKAllCHES Full IXCL'ilBPvAXCES, ETC. 47o 
 
 A iiuliaiiciit creditor is not a purchaser for value within '^}]^V- ^l- 
 •> '^ J^ _ Sect. 2. 
 
 the 27 Eliz. c. 4, so as to avoid a prior vokuitary settle- 
 
 Not a sale for 
 
 nient (''). value within 
 
 27 Eliz. c. 4. 
 
 Nor does a iudunient operate as a chariiv ui^on an ecclesi- Not a charge 
 "^ ° ^ , . „ . , on an ecclesi- 
 
 astical benefice ; the words " rectories and tithes," in the astical bene- 
 
 11th and 13th sections of the 1 & 2 Vict. c. 110, having 
 
 reference only to lay rectories and tithes (c). 
 
 But a iudu'nient on a Ijond of a nuniiciijal corporation will ^„f '-''I'^'j °" 
 operate as a charge on all lands and hereditaments of the lau^ls. 
 corporation (/'). 
 
 We may here remark that, l)y a recent statute (30 & 31 K;iihvay plant 
 
 ' . exempted 
 
 A^ict. c. 127, s. 4), the rolhng stock and plant oi a ranway from execu- 
 company are for the future protected from being taken in 
 execution ; but a receiver, and, if necessary, a manager of 
 the undertaking, may now be appointed, on the petition of 
 the judgment creditor; and the monc^^s paid to such receiver 
 or manager will be applied and distril)uted under the direc- 
 tion of the Court of Chancer}-. 
 
 We have already seen that the judgment creditor can [^rcMovHcx- 
 
 •^ .1 o tended rights 
 
 now take under an de;jU the entirety, instead of a mci'e t^t Law ; 
 moiety, of the debtor's land ; and that several kinds of pro- 
 perty, which were not extendible under the old laAv, are 
 now liable to be taken in execution. It does not, however, 
 appear, that the creditor has acquired any remedy at Law 
 ao-ainst e([uitable estates, except in cases of simple trusts in 
 favour of the debtor: e.(j., it is conceived that an ecjuity of 
 redemption cannot be taken in execution; l)ut that land 
 held simply in trust for the debtur at the date of the judg- 
 
 ('/) JJcavaa v. Lonl Oxfonl, "2 Jur. S. 308 ; Cottle v. WarrirKjton, 2 Nev. & 
 
 N. S.121; 6 De G. M. & O. 507; Ikr. 227 ; i5»to v. i^ro<Ae?-s, '2 Sm. & Cf. 
 
 sec, as to Ireland, 12 & 13 Vict. c. 95, 509 ; and ^V^se v. Bcrcsfvid, 3 Urn. 
 
 s. 6. ^ "^'^- -'''^■• 
 
 (c) Jlaickiiis V. buthcnvk, G I)e li. (/) Arnold v. Ma//ui; tic of Ovuvcs- 
 
 M. & G. 1 ; revcr.-ing 1 Sim. N. K. md, 2 K. & Jo. 574 ; but see Arno 
 
 133 ; and see Loiuj v. titork, 3 De ei. & x . lUdfjc, 13 C. B. 745.
 
 474 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. iiiL'ut can l)e taken in execution, notwitlistandinii- inter- 
 
 — — mediate alienation (otherwise than to an alienee for valuable 
 
 consideration, and without notice). 
 
 ill Eiiuity. In Equity, the judgment creditor is, under the ISth 
 
 section of the 1 & 2 Vict. c. 110, to have the same remedies 
 against the hereditaments charged, as he would be entitled 
 to if the person against Avhom the judgment has l)een 
 entered up had power to charge, and had in writing agreed 
 to charge, the same hereditaments with the amount of the 
 j udgment debt and interest : but he is not to proceed in 
 Equity to obtain the benefit of such charge, until a year 
 has elapsed from the entering uj) of the judgment. A 
 AVi-itten agreement to charge being in Equity identical in 
 effect with an actual charge, the judgment creditor is l)y 
 this section placed in the position of an equitable incum- 
 brancer under a memorandum of charge, subject only to the 
 restriction as to the time when his judgment charge is to be 
 enforceable. It is not, however, necessary that a year should 
 have elapsed since the registration of the judgment ([/) : 
 and the Court will, within the yeai-, interfere at the suit of 
 the judgment creditor, to prevent the destruction of the 
 property, although no substantial relief can be obtained 
 until the year has expired (Ji) ; but a writ of elegit, and not 
 merely a fi. fo-, must have previously issued (/). 
 
 Iveyistration Registration has no retrospective effect, so as to make the 
 
 does uot 01)6- . 1 • 1 
 
 rate retrospec- judgment, wheu registered, operate against purchasers or 
 
 '^^^" mortgagees as a charge from the date of its being entered 
 
 tq) (/i). So a certificate of the taxation of costs must be 
 
 registered, and operates only from the date of I'egistra- 
 
 i.ion (l). 
 
 i'j) Berhijtihln, ^-f. B. Co. v. Iiatn- H;i. GO ; aud ace cases cited in last 
 
 brklijc, 15 Bqux. 116. note, and Ncalc v. Didc of Mavlbu- 
 
 [h) Yctscomc v. Laiakr, 28 licav, ro^/yA, U Myl. & C 4(J7, 115 5 6W/rcy 
 
 SO ; rarlr'uhjc v. Foskr, 10 Jur. N. S. v. fucker, 33 13eav. 280. 
 711 ; 34 Beav. 1 j aud see Watts v. {k) Har'jracc v. Harr/ratx, 23 Beav. 
 
 Jtfcroji, 3 M. & ({. 372 ; He Duke »f 184. 
 Newcastle, L. E. 8 Eq. 700. (/) i«f; C. 
 
 (/) Siiilth V. Jlitr.it, ] Coll. 7(».' ; 10
 
 SEARCHES FOR INCUMBRAXCES, ETC. 47-5 
 
 It has been much doubted whether the proper remedy, in Chap. XI, 
 
 Equity, for the judgment creditor, is sale or foreclosure (/;(). LJ — 
 
 In one case, where tlic authorities were fully revie^ved, it ],; yjty tho 
 was held by V.-C. Wood that the proi^er remedy for an rc.neay i.s sak 
 equitable mortgagee, who has not an agreement for a legal 
 mortgage — a position analogous to that of the judgment 
 creditor — is sale, and not foreclosure (_n) ; and this decision 
 was generally accepted and followed. But in a very recent 
 case (o) it was held on the authority of an unreported case 
 of Pryce v. Bv.ri/ {p) before the Court of Appeal, that the 
 appropriate remedy for an equJtal)le mortgagee is fore- 
 closure, not sale. 
 
 But the 27 & 28 A'^ict. c. 112, has provide<l a more Summary 
 summary remedy, in Equity, for the judgment creditor. By "j^^^y ^^^^ {^^ 
 the 4th section it is enacted, that every creditor, to whom ^^^^^"^'^'^ "^ 
 any land of his debtor shall have actually been delivered in 
 execution by virtue of any judgment under that Act, and 
 whose writ, or other process of execution, shall be duly 
 registered, shall be entitled forthwith, or at any time after- 
 wards, while the registry of such writ or other process shall 
 continue in force, to obtain from the Oourt of Chancery by 
 petition (ry), in a sunnnary way, an order for sale of his 
 debtor's interest in such land ; and every such ' petition may 
 be served upon the debtor only ; and thereupon, the Court 
 is to direct all necessary and proper infjuiries as to the 
 nature and particulars of the debtor's interest in -the land, 
 and his title thereto; and in making such inquiries, and 
 generally in carrying into effect such order for sale, the 
 practice of the Court, v/ith respect to sales of real estates 
 of deceased persons for the payment of debts, i.s to lie 
 adopted and followed, so far as the same may be found con- 
 
 (;/() Sale diroutcd in Fuotner v. {n) Tac/clc^ v. Thuiiqwii, I J. Sell. 
 
 ,*;luvr/is. 5 Do G. & S. 736 ; Shtujson v. 126. 13ut see Sotou, j). -1 1'J. 
 
 Moiioj, 2 K. & J. 71 ; Smllh v. llursl, (") Juniis v. Jaiaca, L. l\. 10 E(i. 
 
 10 ITa. 50 ; and .see C'lrlou v. Farlar, 15o. 
 
 S Bcav. 525. Foreclosure direttecl in {i>) L. li. 10 Ivj. lyii, n. 
 
 Jones y. Bailey, 17 Beav. 582; Fonl ('/) For form of petition, «ee Uau. 
 
 V. Wastell, 6 Ha. 229 ; Mmerx. Eo,jh, (_'h. Forms, 896. 
 21 Beav. 559.
 
 476 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. vciiiciitly applicable. If, un making sucli iiKpiiiies, it 
 . L"— appears that any other debt due on any judgment, &c., is a 
 
 chai'oe on the land, the creditor entitled to such charge 
 (whether prior or subsequent to the charge of the petitioner) 
 is to be served with notice of the order for sale, and after 
 such service is to be bound thereby ; and the proceeds of 
 such sale are to be distributed among the persons who ma}- 
 be found entitled thereto according to their respective 
 priorities (/•) ; and all parties claiming interest through the 
 debtor are to be bound by the order for sale (s). These 
 pro\isions, it must be observed, are merely prospective ; and 
 a creditor, to whom the land has been delivered in execution 
 under a judgment entered up prior to the Act, is not entitled 
 to a summary order for sale (f). 
 
 Coustruction rpj^^. ^^.^^^ construction of the 27 & 28 Vict. c. 112, is 1)V 
 
 of the 27 & 25 
 
 Vict. c. 112. no means obvious. By the first section, to which we have 
 already referred, no judgment is to a feci any land of what- 
 ever tenure until it has been acfaa.lly delivered in execution 
 Ijy ^drtue of a writ of elcyif, or other lawful authority (it), 
 in pursuance of such judgment ; and the summary remedy 
 provided by the 4th section is expressly confined to cases 
 where there has been such an actual delivery. These pro- 
 visions, if construed literally, and without reference to the 
 context, can only mean that, except in the comparatively 
 few cases where the debtor's land is capal)le of being de- 
 livered in execution, and has actually been so delivered, no 
 future judgment Avas to operate as a charge on land. But 
 the object of the Statute, as stated in the preamble, is to 
 assimilate the law aft'ecting freehold, copyhold, and leasehold 
 estates, to that afiecting purel}' personal estate in respect 
 of future judgments; and if the Legislature had intended 
 at once to deprive the judgment creditor of all his extended 
 remedies under the 1 & 2 Vict. c. 110, this would surely 
 
 (;■) Sect. 5. (") As to the uicauiug of which, see 
 
 (s) Sect. 6. IJaiton v. Hayauud, L. K. 9 Ch. Ap. 
 
 (0 i?e Mc nf Wljkt Fa-ru, 11 Jur. 22'J ; In re South, L. E. 9 Ch. Ap. 
 
 N. S. 279. 370, .ami infm p. 478.
 
 SEARCHES FOR INCUMBRANCES, ETC. 477 
 
 luivu Ijccii i^rovided for by exiiress enactment, and not Chap. XI. 
 
 .n -AT 1 .1 -. 1 Sect. 2. 
 
 have been left to mere snrnnse. Moreover, by the 'Ina . _ 
 
 section the term " land " is to include incorporeal here- 
 ditaments, and any interest, f/j., a reversionarj^ interest, in 
 corporeal hereditaments (i.e., property not capable of being- 
 taken in execution) ; and the ")th section speaks of charges 
 " prioi' or subsequent to the charge of the petitioner." 
 Clearl}^, therefore, the Statute contemplates the case of a 
 judgment creditor, who may accpiire a charge under the 
 Act, and be entitled to the summary remedy in Equity 
 which it provides, although not in actual possession under a 
 writ of elegit (v). 
 
 In two recent cases, in which the question of what was ^''"^^^f ^f the 
 
 ^ _ _ Cowbndge i\. 
 
 intended by " actual delivery " was very fully considered, it Co, 
 was held that, before a judgment creditor can apply by 
 petition under the Act, he must have got that which is the 
 nearest erjuivalent to being put in possession, vi':., a return 
 to the writ actually placed in the hands of the sheriff (,t) ; 
 l)ut he is not prevented from filing a bill to redeem a prior 
 judgment creditor to whom the land has been delivered : 
 and, ha^'ing thus removed the legal obstacle, he may then 
 petition for a sale under the Statute (?/) ; and that the 
 priorities of the judgment creditors inter se are determined 
 not by the dates of the judgments, but by the dates at 
 whicli the writs are placed in the hands of the sheriff (s). 
 
 In a later case of In re the Duke of Neivca^tle (a), the '-eDnkeof 
 
 , '' ^ . Newcastle. 
 
 Duke was entitled to an equitable life interest in a lease- 
 hold messuage ; a judgment creditor, having issued a writ of 
 fi. fa., under which the sheriff entered and sold tlie debtor's 
 goods, presented a petition, while the sheriff was in possession, 
 for a summary order for sale of the Duke's interest in tlio 
 
 (;•) See now Hatton v. Haymood, A]). 229. 
 L. Pv. 9 Ch. Ap. 220 ; In re South, (y) Re Cov:hridrjc II Co., uU suprH ; 
 
 ih. 373. see and compare Horsley v. Cox, L. R. 
 
 {x) Re CowhrlJgc R. Co., L. R. 5 Eq. 4 Ch. Ap. 92. 
 413 ;6^«cs<v. Cowhridye R. Co., L. R. (2) Quest v. Cowhridye R. Co., vhi 
 
 6 Eq. 619. But see now and consi- .'tupra. 
 der ffattnn v. Haywood, L. R. 9 Ch. {a) 18 W. R. S ; L. R. 8 Eq. 7no,
 
 478 SEAIJCIII'IS FOll IxXCUiMIUlANCES, ETC. 
 
 Chap. XI. liouse, uiidci' the 4th section of the 27 & 28 Vict. c. 112, 
 
 Sect. 2. 
 
 Lord Romilly hold, tirst, that the Duke's interest could not 
 he taken in execution under a writ of fi. f(t. ; and, secondly, 
 that the siuninary rt-lief provided l)y the 4th section of the 
 Act of 1804 applies only in cases where tliere has l»een an 
 actual drllvcry in execution. 
 
 Rem.ark.si j,-^ ^\^^, g^^g^ ^q Avliicli we have just referred, the Court, it 
 
 in these chhos, 
 
 will be seen, treated the words "actually delivered m execu- 
 tion" as used in their strict technical sense, and not as 
 importing what we may term an equitable delivery of the 
 land in execution ; and accordingly, applying a cy-prh rule, 
 held that an enforcement of the legal process down to the 
 sheriff's return to the writ, was, as respects the debtor's 
 equitable interest, a delivery in execution within the 
 meaning of the Act. 
 
 Ilattoav.liay. But in a very recent case of Hotton v. llci/u-ood (h), a 
 '"'"'^''' new construction has been put upon the Statute. In that 
 
 case a judgment creditor sued out an elegit against his 
 debtor, whose only interest in land was an equity of re- 
 demption. After the sherifi' had returned nil, the debtor 
 was adjudicated bankrupt, and the judgment creditor then 
 filed his bill against the trustee for a declaration of charge 
 in the delator's equital)le interest, and for consequential 
 relief. The Court of Appeal, affirming V.-C. Malins, who 
 had allowed a demurrer to the bill, laid it down that the 
 term " delivery in execution" must be understood according 
 to the subject-matter, — that it was not confined to a delivery 
 at law by the sheriff; but that a <lelivery, or what was 
 tantamount to a delivery, " by any other lawful authority," 
 satisfied the language of the Statute ; and consequently that 
 the relief given by a Court of Equity, whether by way of a 
 A\Tit of assistance or secpiestration or the appointment of a 
 receiver, is substantially a delivery in execution Avithin the 
 Act (c). 
 
 (h) Tj. ]{. y C'h. Ap. •229 ; Jn re (c) L. E. 9 Ch. Ap. 373 : where the 
 
 Suiitli L. ]\. 9 Ch, A])., 373. property was an estate in remainder
 
 SKAKCIIES J'Oil lNCU:MBllA^^CES, ETC. 47f) 
 
 Accordhii;' U) tliis duci.sioii, w liieli lias l)ccii l'ullu\\X'<l in Chap. XI. 
 
 the later ease of In re South (d), a judgment creditor who '_~'__ 
 
 cannot obtain possession of the land under the elegit has no 
 chai'gc upon his debtoi-'s interest in it until he has obtained 
 some relief, either liy a decree, or, it is conct'ixed, b}- an 
 interlocutory order of the C^ourt of Chancer}', in a suit to 
 enfoi'ce his equitable charge. If this be so, there can, it is 
 conceived, be no reason why he should be required in the 
 first instance to go through the idle form of prosecuting 
 legal remedies, which can be productive of no result, instead 
 of at once availing himself of his only effectual means of 
 lelief (e) ; or why the priorities of judgment creditors inter 
 fte should be determined according to the dates at which the 
 wi'its are placed in the sheriff's hands, and not by the order 
 in which they ol)tain an effectual charge on. the land r)r the 
 debtor's equitable interest in it. 
 
 In a very recent case (/), Sir George Jessel, M.R., held 
 that a judgment creditor, who, by reason of an outstanding 
 legal estate or incumbrance, could not obtain possession of the 
 land under his elegit, wiiH not bound to file a bill for redemp- 
 tion ; biTt might, in a suit to which the debtor and subsequent 
 incumbrancers were alone parties, obtain a decree for the 
 appointment of a receiver and a sale of the property (g). 
 
 Where it is not clear that the debtor has a saleable interest wiipn a sale 
 in the land delivered in execution, the Court will not ordi'r uiui,.r\T&2S 
 an immediate sale ; but will direct inquiries as to the nature ^'^'t- ^'- 1^-- 
 of the debtor's interest : and if it should be found unsaleable, 
 the case appears not to fall within the 4th section (J/). 
 
 (d) uhlsiq^vd. (.'/) Sec L. IJ. IS E<(. 300, for form 
 
 (e) And as to the necessity of first of decree. 
 
 pursuing the legal remedy Ijefore re- (h) In re Bishop'g Walthmn R. Co., 
 
 sorting- to Eciuity, see Wallis V. Mor- L. R. 2 Ch. Ap. 382 ; and as to form of 
 
 ria, 10 Jur. N. S. 741 ; Godfrcij v. order for sale of superfluous Lands of 
 
 ^McZ-e?', 9 Jur. N. S. 1188; Partrkhfe a railway company imder this .section, 
 
 V. Fo.iter, 34 Beav. 1 ; Thomas v. (7;-o.w, see lie Hull ami Hornsea 11. Co., L. 11. 
 
 2 Dr. & Sm. .^523. 2 Eq. 262 ; and Gardner v. London, 
 
 if) Wells V. A'Uphi, Jj. n. 18 E<i. Chatham, and Hover R. Co., L. E. 2 
 
 298 ; but see and compai'c James v. Ch. Ap. 385. 
 .Tames, L. R. IG Eq. \^Z.
 
 4S0 
 
 SEAKCIIES FOR INX'UMDUAXCES, ETC. 
 
 Chap. XI. \\'licn it is said that a judgincnt operates as a charge upon 
 
 ^ ^^"*' "■ land, what is meant is, tliat where a delator has merely a 
 Juclgment modified or qualified interest in the lands, — as where he holds 
 
 ci-editor post- ^ 
 
 poned to rextn! them wholly or in part as a trustee or subject to any previous 
 
 que trust, or i i i i i •! i t ' xi • i 
 
 prior equitable mcuml )rance whether legal or merel}- equitable, — the judg- 
 
 incnmin-ancer. ^^^^^^^^ j^^^^^^. ^3^ considered as the statutory equivalent to his 
 written agreement to charge, not the lands themselves, Vnit 
 merely that which he may rightfully charge, viz., his bene- 
 ficial interest (if any) in them ; so that the judgment creditor, 
 although he subsequently acquire the legal estate, is post- 
 poned to &, cestui que trust, or a prior equitable incumbrancer 
 who advanced his mone}^ upon the security of the specific 
 property. 
 
 Where judg- And it maybe surmised that a judgment creditor registering 
 
 prior to regiJ."^' with notice of a charge created by the debtor, even subse- 
 
 tration, has quently to judgment being entered up, would be postponed 
 
 charge. to such charge of Equity (i). 
 
 In one case (j) it was held that judgment creditors, whose 
 judgments were not a charge on the land at the date of the 
 decree in a foreclosure suit, were entitled to redeem if within 
 the six months allowed for redemption they issued writs of 
 elegit', but, in a late case (A"), this decision was disaj)proved; 
 and it was held that judgment creditors who had not issued 
 execution were not necessary parties to a foreclosure suit. 
 
 Watts V. 
 
 Porter. 
 
 In a modern case, a majority of the Court'of Queen's Bench 
 held that a mortgage of an equitable interest in stock, where 
 the mortgagee had omitted to give notice of the charge to 
 the trustees, must be postponed to a charging order ob- 
 tained under the 14th section by a subsequent registered 
 judgment creditor (/). This case, although professedly de- 
 
 (/) See and consider Warlurton v. 
 Hill, Kay, 470 ; and see Haly v. 
 Barrii, L. R 3 Ch. Ap. 452, and Sir 
 W. P. Wood's explanation of his 
 judgment in Warhurton v. Hill ; see, 
 too, Benhftm v. Keane, 1 J. & H. 685 ; 
 
 3 DeG. F, & Jo. 318. 
 
 (j) Mildred v, Austin, L. E. 8 Eq. 
 220. 
 
 (h) Earl of Cork v. Russell, L. E. 13 
 Eq. 210. 
 
 (0 Wotts V. Porter, 3 El. & B. 373.
 
 SEARCUKS FOIl IXCL'MIUIAXCES, ETC. 481 
 
 cidcd in uccoiilaiicc witli the decisions above let'erred to, on Chap. XL 
 
 . . Sect 2 
 
 tlie 13tli section, is veiy dimcult to be reconciled witli them; ' 
 
 and the masterly judgment of the di.ssentient mendjer of the 
 Court, Erie, J., offers reasons in support of his opinion which 
 many will deem to l)e unanswerable (m). 
 
 In a later case, it was held that a judgment entered Recent cases, 
 up Ijy an heir for his own debt, before any action or suit by 
 simple contract creditors of the ancestor, had no priority 
 over their claims under the 3 & 4 Will. IV. c. 104, in respect 
 of the descended real estate (n). So, an etj^uitable assignee of 
 stock, whose mortgage was subsequent to the judgment, but 
 l)efore the charging order, was held entitled to priority over 
 the iudo-ment creditor, although he had omitted to oive 
 notice of his security (o) ; and, in a later case, it was laid 
 down, that whei-t^ a ju<lgment creditor had notice of a prior 
 mortgage, or a mortgagee has notice of a prior unregistered 
 judgment, each was equally postponed ; in the former case, 
 because the del)tor had parted with his interest ; in the 
 latter, because the mortgagee, having notice of the prior 
 incumbrance, could not, by contract, place himself in a better 
 position than his mortgagor, who might not derogate from an 
 intei'est which he had already created (p) : but that as between riiorities of 
 judgment creditors this principle had no application ; the crefUtors'^i'/-^r 
 judgment creditor gaining his position by proceedings in *«' 
 ■invitmn ; so that, notwithstanding notice of a prior unregis- 
 tered judgment, his judgment, if first registered in the 
 County Register, would have priority (r/). So, under the under the A< t 
 27 & 28 Vict. c. 112, the priority of judgment creditors inter 
 .<?e is regulated according to the times when the several writs 
 are placed in the sherifi"s hands (v). Where, however, the 
 
 (/«) And-see juilgmeut ill y/(YZC<m V. and seu Unhj \. Burnj, L. ]{. 3 Ch. 
 
 Lord Oxfurd, 2 Jur. N. S. 121 ; 6 De Aj). 452, and cases there cited ; 
 
 G. M. & G. 492, 524, 525, 532 ; wliere BrcnrcUlf v. Dorrington, 4 De G. & 
 
 the decision in Watts v. Porter was S. 122, 
 
 disapproved. And see under the (p) Benhnm v. Keane, 1 .Tohn & H. 
 
 eqnivalent Irish Acts, Eyre v. Mc 685; 3 De G. F. & Jo. 318 ; Nere v. 
 
 DonncU, 9 H. L. C. 619, 642. Flood, 33 Beav. 666. 
 
 (n) Kinderley v, Jerrh, 22 Beav. 1. {q) S. C. 
 
 (o) Scott V. Lord Hastings, 4 K. & (,-'» Guest v. Cowhrklge B. Co., L. T\. 
 
 Jo. 633 ; see V.-C. Wood's judgment; 6 Eq. 619, supnl, 
 
 VOL. I. H
 
 482 SEARCHES FOi; IXCT':MHr.AXCES, ETC. 
 
 Chap. XI. tran.saction, tlioui;!! in rorni u jiulj^meiit, is in truth a con- 
 
 ^^"^^ ^' tract, as where money is agreed to he advanced upon the 
 
 security of certain land, and tlie judgment is only the mode 
 
 of carrying out the contract, the principle ahove stated 
 
 would prohal)ly l)e held to apply (■<^). 
 
 Taking ere- ^y^, ^^-^j^y r^\^^ remark that a judgment, upon which execu- 
 
 flitor ill exo- -' ,f.<.iT .i 
 
 ciitiondis- tion has not issued, is discharged it the creditor takes or 
 charges judu- ^^^^^.^^^ ^^^^ dehtor's body in execution (t) : and the Court 
 will compel the creditor to attend and consent to a memo- 
 randum of the fact })eing made in the Master's book at the 
 Common Pleas (a) : l)ut no such effect is produced 1)}' the 
 del)tor being taken into custody under an attachment for 
 non-payment of money pursuant to a registered decree of 
 the r*ourt of Chancery (,t) ; and a creditor who has sued out 
 an rhy/if, cannot afterwards avail himself of a/?. /(^ (v/). 
 
 .Tndyment, In case of l)ankruptcy, the judgment creditor, under the 
 
 ily^bMik-^ " 13th section of the 1 & 2 Vict. c. 110, had all the rights of 
 rnptny. ^^^ equital)le mortgagee, provided that the judgment was 
 
 entered up at least twelve months before the bankruptcy (:); 
 although registration might liave been delayed until shortly 
 before the act of bankruptcy ((i); so that it was sufficient to 
 extend the search against the bankrupt over a period of one 
 year prior to the bankruptcy. In the case of a judgment 
 entered up under a Avarrant of attorney, and of the sul»se- 
 quent insolvency of the debtor, the judgment creditor's 
 security was hehl to l)e not affected l\y the Gist section of 
 the Act (J)). 
 
 Under rerent ITuder the Bankruptcy Act of 18(39 no creditor in respect 
 
 Act. 
 
 (.9) Bciiham V. Kcauc, uhi supra ; 511. 
 
 and see Croft v. Linnleij, 6 H. L. Cas. (z) Sect. 13 of Act ; and see RoUes- 
 
 672. ttin V. Morton, 1 Dru. &\V. 195. 
 
 (t) See 1 & 2 Vict. c. 110, s. 16 ; (a) Re Bo>/le, ?, Be G. M. & G. 515. 
 
 Hnnlditcli v. Collins, 5 Beav. 497. ('') llothtm v. Somerrille, 9 Beav. 
 
 {u) Lewis V. Dyson, IG Jiir. 222. G3 ; Rohlnson v. Hedger, 17 Sim. 183 ; 
 
 (x) Roberts v. Ball, 1 Jur. N. S. 13 Jur. 846 ; 14 Jur. 784. But see 
 
 685. 24 & 25 Vict. c. 134, Schecl G. 
 
 (?/) Marl-h'ii V. Smith, 4 W. E.
 
 SEARCHES FOR JXCU.MRKAXCKS, ETC. 
 
 483 
 
 of a Jc'ljt, pro\aljle inidcr the bankruptcy, is to have aii}' Chap. XI. 
 
 remed}'' against the property or person of the 1 )ankriipt, 
 
 except in the mode directed by the Act ; ]jnt this provision 
 is not to affect the power of creditors holdino- security to 
 realize or deal with the same (r). A judgment creditor who, 
 at the date of the banlvruptcy, has not obtained an actual 
 delivery of the l»ank'rupt's land, or what is tantamount to 
 delivery within the rule laid down in Hatton v. Haywood (d), 
 has no longer any charge upon the debtor's land, and must, 
 it is concei^'ed, rank as an ordinary creditor under the liank- 
 ruptcy. 
 
 By the 11th section of the 22 & 23 Vict. c. 35, the release Ta-loascof part 
 from a judgment of part of any hereditaments charged chafed not to 
 therewith, is not to affect the validity of the iudgment as to ^^"'^^ J^^'^^- 
 
 . . . ... llirnt. 
 
 the hereditaments remaining unreleased ; but this provision, 
 is not to affect the rights of persons interested in the 
 hereditaments remaining unreleased (f*). 
 
 The remedies of the judgment creditor, under the new llemedles 
 
 . . ,. vinder new ].t\v 
 
 law, depend, as we have seen, upon tlie due registration of depend upon 
 the judgment, or, under the Acts of 1800 and 18G4, of the ^'egi'^tration. 
 writ of execution. By the 19th & 21st sections of the 1 & 2 ^^- ^'i^t. e. 
 Vict. c. 110, no judgment, decree, order, or rule, was I)}- 
 virtue of the Act, to affect any lands, &c., as against pur- 
 chasers, mortgagees, or creditors, unless and until a memo- 
 randum thereof was left for I'egisti'ation with the senior 
 Master of the (^ommon Pleas at Westminster, or, (in the 
 case of a judgment obtained in the (Courts of Lancaster or 
 Durham,) with the prothonotaiy, or deputy prothonotary, 
 or other appointed officer, of such Courts respectively (/), 
 who wQ,'!i fortlavith to enter the same in the Register Book; 
 and by the 2 & 3 Vict. c. 11, the old duckets were closed, 2kz\k-t. 
 
 C. 1 1. 
 
 and iudgments then docketed were not to affect lands, &c., 
 as against purchasers, mortgagees, or creditors, after the 1st 
 
 (r) .32 & 33 Vict. c. 71, s. 12 ; and c. 48, s. 72 ; Handcock v. Ilandcod; 
 see sect. 95. 1 Ir. Ch. Jl. 444. 
 
 {(]) Vide supra, p. 473. (J } See as to Palatinate judgments, 
 
 (e) See the Irish Act, 11 & 12 Vict. 18 & 19 Vict, c. 15. 
 
 I I 2
 
 484 
 
 SEARCIIKS FOR INCUMBRANCES, ETC. 
 
 Chap. XI. 
 Sect. 2. 
 
 Wheth er cre- 
 ditor is bouml 
 to see that 
 bis judgment 
 is registered. 
 
 August, 1841, until a memorandum thereof was left for 
 registration at Westminster under the 1 & 2 Vict. c. 110; 
 and as respects judgments registered at Westminster, a fresh 
 memorandum was required to be left for registration every 
 five years {g) ; so that in no case need a search at West- 
 minster extend back for more than five years ; but the 
 search for the five years preceding the purchase should 
 theoretically be made, not only as against the present vendor, 
 but also against former owners, although more than five years 
 may have elapsed since they parted with the property (/<). 
 
 It has been suggested (/), (and the strict grammatical 
 construction of the Act seems to favour the view,) that a 
 judgment may be binding on a purchaser, notwithstanding 
 that, through the neglect of the proper officer, it maj- not 
 have been registered ; and that the purchaser, if damnified 
 by the omission, must seek his remedy against the officer (/.). 
 But the Legislature seems to have contemplated that the 
 leaving of the memorandum and its entr}- would form l)ut 
 one transaction ; and, without doing any great violence to 
 the words of the Act, it may well be held that an implied 
 obligation is thrown upon the creditor of seeing that there 
 is an actual entry (/). 
 
 Registration By the first section of the 23 & 24 Vict. c. 38, which is 
 
 executTou^ not retrospective {m), before a judgment can aftect land (of 
 under the Act whatever tenure), as ag-ainst a purchaser or mortgagee, 
 
 of 1860. ^ . . o o ' 
 
 whether with or without notice, a writ of execution must 
 
 have been issued, and registered Ijefore the conveyance or 
 
 mortgage : and the execution must be put in force within 
 
 three calendar months from the date of the i-egistration of 
 
 the writ : and l)y the 2nd section a memorandum is to be 
 
 left with the senior Master of the Conmion Pleas, who is to 
 
 {fj) See ss. 1, 2, and 4 of 2 & 3 
 Vict c. 11. 
 
 (A) See as to misnomer, Bearan v. 
 Lord Oxford, 1 .Tur. X. S. lo;! ; 3 Sm. 
 & G. 11 ; ride infra, j.. 491. 
 
 [i^ Prid. Jndg. 119. 
 
 (A) DoiKjlas V. Yallop. 2 Burr. 722. 
 
 (/) But see M'Minn v. M'ConncIf, 
 2 Ir. Ch. Rep. 609. 
 
 (»)) Vide siiprd, p. 464 ; and see 
 Erans v. WiJIiama, 2 Dr. & S. 324.
 
 SEAKCHKS Foil IXCUMiillANeES, ETC. 48.5 
 
 enter the particulars in a book in the name of tlie person on Chap. XI. 
 
 ivho.se hehn/f the Avrit Avas issued ; and all persons are to be Lll_ 
 
 at liberty to search this book, in addition t<j all the other 
 books in the same office, on payment f»f the sum of one 
 shilling-. These provisions are exte)ide(l to the Palatine 
 Courts, but not to Ireland. 
 
 Under this Statute a registered judgment, under which Cannot be 
 the land has not been actually delivered in execution, in- the end of the 
 stead of being a charge of indefinite duration, if kept alive ^^"'^'^ monthh ; 
 l)y the process of re-registration, was made a charge upcjn 
 the land only while a writ of execution was in force, viz., 
 for a period of three calendar months from the date of 
 registration. There is no provision for the re-registration of 
 the writ at the end of the three months, and it is the 
 practice at the office t(j refuse re-registration, as not being- 
 authorized l)y the Statute (/i) ; but there would seem to be but a fresh 
 nothing to prevent the registration of a second, or any sub- .^amelud.-^ 
 se(iuent, writ on the same judgment. "i*^"*^ "^^y ^^ 
 
 •' '^ registered 
 
 scmhic. 
 
 By the 27 & 28 Vict. c. 11*2, Avliich also is merely pros- Uegistiatiou 
 
 , • !• • ■ • 1 • 1 under 'he Act 
 
 pective, tlie writ oi execution is to be registered in the of 1861. 
 name of tlie debtor, thus avoiding- the necessity of a double 
 search; and no prior or other registration of the judgment 
 is to be deemed necessary /'o/- rry/// ^>(«/'y>o,se : and the sum- 
 mary relief provided 1)y the 4th section, must be obtained 
 ivhlle tJte rcijisfi'ij of tlie vjrit continues in force. As this 
 Act, like the 23 & 24 Vict. c. *3<S, does not provide for re- 
 registrati(;n of the writ, th(» meaning of this (pialifving 
 expression is far from clear, an<l will doubtless form the 
 suliject of judicial decision. 
 
 Where a judgment is re-registered after the expiration of Neglect to 
 
 1 . . 1 1 i- 1 1 • • re -register 
 
 more than hve years fiom the date oi the last registration, within fivc^ 
 there is nothing in the 2 .^ :] Vict. c. 11, to alfect its validity, JjJ''"'^-^***-'^* 
 except as against purchasers or mortgagees claiming under 
 an instrument executed betAveeii the expiration of such 
 
 yn) See Pask on these Acts, p. U.
 
 486 SEARCHES FOR INCUMBRANCES, ETC. 
 
 Chap. XI. period of live years and the siibi^equent registration (o). 
 ____!llI!L_ Any doubts which had existed were prospectively removed 
 
 by the Cth section of the 18 & 19 Vict. c. 15, s. 6, which 
 enacted that it should be sufficient to bind purchasers, &c., 
 if a minute were ao-ain left with the senior Master of the 
 Common Pleas within live years before the execution of the 
 conveyance, &c., although more than live years should have 
 expired by effluxion of time since the last previous registra- 
 tion before such minute was left ; and so toties quoties upon 
 eveiy i-e-registry. 
 
 Provisions as -^y^ j^-^^^y g^^gQ remark that the inovisions as to registration 
 
 to registratiou "^^ , . , 
 
 not merely for are operative, not merely for the protection of the debtor s 
 
 the benefit of . ^ , , , , i i i <• ii 
 
 immediate imr- immediate purchasers and mortgagees, but also tor tne 
 chasers, &c. ijenelit of all derivative bond fide purchasers and mort- 
 gagees {p) : but where a purchaser or mortgagee has once 
 been duly bound by notice of a registered judgment, the 
 neglect of re-registration within the five years will not 
 relieve him. It is hardly necessary to observe that where 
 the title is derived otherwise than through the judgment 
 creditor, as, e.g., in the case of a lord taking by escheat, the 
 statute does not apply. 
 
 Ke-registra- No' provision was originally made for the fresh registra- 
 
 ments in Paia- tioii of judgments, &c., ill the Palatinate Courts of Lancaster 
 
 tinate Courts. ^^^^ Durham; the 4th section of the 2 & 3 Vict. c. 11, 
 
 referring merely to those judgments, &c., which must be 
 
 originally registered with the senior Master of the Court of 
 
 Common Pleas at Westminster ; but this omission was sup- 
 
 • plied by the IS & 19 Vict. c. 15 {q). We may here remark, 
 
 that since lands in a C*ounty Palatine may be extended on a 
 
 judgment obtained in one of the sujDerior Courts at West- 
 
 (o) Bcavan v. Lord Oxford, 1 Jur. c. 15, s. 6. 
 N. S. 1121 ; 6 De G. M. & G. 492 ; (p) Bcnkam v. Keant, 1 J. & H. 
 
 HhaLO V, Ncale, 6 H. L. Cas. ,581; over- 685 ; 3 De G. F. & Jo. 318. See and 
 
 ruling 20 Beav. 157, and Freer v. consider judgments. 
 ITesse, 4 De G. M. & G. 495; and see {q) See sect. 3 ; and see now 23 & 
 
 Simjyson v. Morkif, 1 Jur, N. S, 1158 ; 24 Viet. c. 38, s. 2. 
 2 K. & .To. 71 ; and see 18 & 10 Vict.
 
 SEARCHES FOR INrUMBRANC'ES, ETC. 487 
 
 minster, it will be proper to search the Westminster Register Chap. XI. 
 in addition to the local Register. 
 
 There were also grovnids for contending that judgments Jiulgmeut^ in 
 
 registered in the Palatinate Courts (r) had their lull etlect c..uits^ 
 
 under the 1 & 2 Vict. c. 110, even as agamst purchasers and ;„„„„,„„■. 
 
 morty-acjees without notice; inasmuch as the words "as '^^'f';'''';.)"'^^'' 
 
 O O ' out lit>LlCL. 
 
 aforesaid," in the otli section of the 2 & 3 Vict. c. 11, seem 
 to identify the judgments, decrees, &c., mentioned in that 
 section, with those mentioned in the preceding section ; and 
 those, as Ijefore observed, appear to be such only as are 
 required to be registered with the senior Master of the 
 Common Pleas at Westminster; and a similar ijuestion 
 seemed to arise as to the applicability of the 2nd section of 
 the 3 & 4 Yict. c. S2, to Palatinate judgments : but Ijoth 
 these points were provided fir by the 1<S t^l- li) Vict. c. l-">. 
 
 A purchaser with notice of an unregistered judgment is rmxliaser 
 
 ^ . , . 1 with notice ot 
 
 protected (.s) from the additional remedies of the judgment unregistered 
 creditor under the 1 & 2 Vict. c. 110; and, since the old E^Se." "'"^ 
 dockets are closed, lie is equally safe from any remedy 
 which, under the old law, depended upon docketing ; but it 
 was conceived to Ije doubtful whether a purchaser witb 
 notice of an unregistered judgment Avas not still bound in 
 Equity to the same extent as he would have been bound 
 under the old law by notice of an undocketed judgment (f) ; 
 Ibr instance, Avhether, if purchasing from an OAvner in fee 
 simple, he Avould not be liable in Equity to have a moiety 
 of the land subjected to the claim of a creditor of whose 
 unregistered judgment lie had notice at the time of ad- 
 vancing his moniy; although, if purchasing under a power 
 of appointment, he might altogether disregard unregistered 
 judgments against the vendor of a date subsequent to the 
 creation of the power ; inasmuch as, under the old law, the 
 
 'yv) Sec as to decrees of the Lancaster Palatinate judgments, vidt mqird. 
 
 Court of Chancery, 13 & 14 Vict. {() Uut see Bcnr v. Ifrad, 3 J. & 
 
 c. 43, s. 24 ; 23 & 24 Vict. c. 38, s. 2. L. 3I(i; AV Hi'lhini.iir. 2 Ir. Ch. \\, 
 
 (.s) 3 & 4 A'ict. e. 82 ; qinvrc, nf; to .04.
 
 488 
 
 SEARCHES I'olt INCLMBKANCES, ETC. 
 
 Chap. XI. exercise of the power defeated sucli judgments as well in 
 
 ' E(|uity as at Law. It was even made a question whether a 
 
 purchaser might not at Law be bound by a judgment neither 
 docketed nor registered in the same way as he would have 
 been bound by it before the Act of William and Mary (a) : 
 but the point did not seem to be one of real difficulty : 
 except as respects Palatinate judgments which never re- 
 quired docketing (x). Both these points are now disposed of 
 in the negative (,y). 
 
 Purchaser It was the Opinion of Lord St. Leonaids that where a 
 
 a docketed judgment had been once docketed under the old Acts, but 
 judgment not j^^d not been registered under the 1 & 2 Vict. c. 110, or 
 
 registeretl ° 
 
 under 1 & 2 where a judgment having been registered under that Act 
 how far liable had not been re-registered at the end of five years, under 
 the 2 & 8 Vict. c. 11, a purchaser for value, although aware 
 of its previous docketing or registration, might presume that 
 it has been satisfied (z) : and this principle Avas carried out 
 in the 18 & 19 Vict. c. lo (a). 
 
 TiOcal regis- 
 ters, whether 
 affected. 
 
 It was held by Lord (Jranworth, V.-C, in a case undeithe 
 West Riding Register Act (6), that a judgment creditor, duly 
 registering under the 1 & 2 Vict. c. 110, but omitting to 
 register under the Local Act, is not an incundjrancer upon 
 the land at Law or in Equity (c) : in a later case, under the 
 Middlesex Act (</), V.-C. K. Bruce declined to foUoAV this 
 decision (r) : but it is now clearly settled that the Local 
 Registry Acts have not been repealed by the judgment 
 Acts (/). 
 
 (m) Coote on Mortgages 50. And 
 see Jortin v. South £aMcrn li. Co., G 
 De G. M. & G. 275. 
 
 (x) See Williams R. P. 4th Ed. 
 p. 68. 
 
 (y) 18 & 19 Vict. c. 15, ss. 4, 5, 
 
 (s) Beere v. Head, 3 J. & L. 340 ; 
 iind see Bedford v. Forbes, 1 Car. k 
 K. 33 (Cresswell) ; and, upon the 
 Irish Acts, Knox, v. Ktlly, 1 D. & 
 Wal. 542 ; Ilukson v. CoUits, 1 J. & 
 L. 94 ; Ex parte Belfast Jfurbour Com- 
 iiiissioucrs, 5 Ir, .Tur. 35. 
 
 (a) See sect. 5. 
 
 (h) 5 Anne, c. 18. 
 
 (r) Jiihnson v. lloldsvorth , 1 Sim. 
 N.S. lOG. 
 
 (d) 7 Anne^ c. 20. 
 
 (c) Rolinsoa v. IVvodicood, 4 De G. & 
 S. 562. 
 
 (/) See Benham v. Keane, 1 J. & 
 H, 685 ; 3 De G. F. & Jo. 318 ; in 
 Mhiuh the prior decisions were fully 
 reviewed ; and see Xcve v. Flood, 33 
 Boav. 666 ; Wcsthrook v. Bhjtlic, 3 
 El. ct P. 737.
 
 SKAKCHES FOR INCUMBrvANc HS, ETC 4<S!J 
 
 Tlic '2o & 24 Vict. c. 115 ((j), lias provided greater facilities Chap. XI. 
 for entering on the register satisfaction of a registered judg- _1_1 
 
 nient, lis pendens, decree, order, rule, annuity, rent-charge, ^^^ff^^^^^^^J^^ 
 or writ of execution, and for the issue of certiticates of the li"w cutered 
 entry of such satisfaction. Where the requirements ot this 
 Statute cannot be complied with, a rule or order of a Court of 
 Connnon Law or Equity directing satisfaction to be entered 
 upon the record of the jndgment, must be obtained (A). 
 
 By the 81 i^<: 'S2 Vict. c. oi, facilities have been given for Judgments 
 enforcing judgments obtained in one part of the United „u,; part of 
 Kingdom in the Courts of another part. Wheii judgment *I','f„'j|;"°;J;'"iii 
 has been obtained or entered iqi in any of the Courts of other part.^. 
 Westminster, a certificate thereof registered in Ireland is as 
 from the date of such registration to have the efiect of a 
 judgment obtained or entered np there, or viee versa ; and 
 registers are provided for the entry of such certificates (i) : 
 so, also, judgments obtained or entered up at Westminster or 
 in Ireland are in like manner to have the effect of a decreet 
 of the Court of Session in Scotland (/) ; and there is a 
 similar provision as to the registration at A\'estminster and 
 in Ireland of certified extracts of Scotch decreets (/) ; but 
 in all these cases the certificate cannot, without special leave, 
 be reuistered more than twelve months after the date of the 
 judgment or decreet ; the Courts in which the certificates 
 are registered are invested with the same powers as they 
 possess in respect of their own judgments, l)ut only so far as 
 relates to execution under the Act ()u). 
 
 We now return to the inquiry with which this digression 
 connnenced, rh., how far the I'elation of vendor and purchaser 
 is affected by the present law of judgments, and, in particular, 
 what searches in respect of judgments ought to be made on 
 behalf of an intending purchaser. 
 
 (y) Sect. 2. 31 - - G4. 
 
 {h) It) & 17 Vict. c. ll;J, s. Hi. (/) Sect. 1. 
 
 For the rules of the otHce as to entry (A) Sect. 2. 
 
 i)f satisfaction, see Task on the Judg- (0 Sect. o. 
 
 inents Law Amendment Acts, pp. (*(() ^ect. 1.
 
 4;jo 
 
 SEARCHES FOR IXCrMBRAXC ES. ETC. 
 
 Chap. XI. 
 Sect. 2. 
 
 General effect 
 of recent 
 s^tutes on 
 the law of 
 judgDients. 
 
 The natural eftect of the i-e.strictions and fonnalities which 
 the later Statutes have miposed upon the judgment creditor 
 as to the time and manner in wliich he may avail himself of 
 his remedies, has been gi-eatly to diminish the number of 
 registered judgments (n). In the case of advei-se judgments, 
 or Avhere the debtor is known to possess real estate, a judg- 
 ment will still 1>e registered ; Ijut it is no longer worth the 
 creditor s wliile to i-egister a ro^^ng judgment, in the hope that 
 it may one da\' Ije found to affect land which he does not 
 know his debtor to possess, and which cannot be dealt mth 
 until his claim is satisfied. In proportion to the numljer of 
 seaiches made, the niunber of registered judgments and writs 
 of execution found is extremely small : but although a pur- 
 chaser is under no positive obligation to make a search, yet 
 notice is so readily presumed, and with such difficulty dis- 
 pix)ved, that, notwithstanding the risk of omitting to make a 
 seai"ch may in the paiticulai- instance be almost inappreciable, 
 there ai-e perhaps few cases in which the sohcitor of an 
 intending pm-chaser can l>e safely adA^ised to dispense 
 with it. 
 
 What searches 
 should be 
 made. 
 
 The seaich for judgment-? should be made for a period of 
 five yeai"s. The register will disclose the date of entering up 
 the judgment : if it was ent^ied up Ijefore the 23rd July, 18C(l, 
 and has l^een duly re-registered, the purchaser will still l:»e 
 Ijound by it, although no execution may have issued thereon, 
 or been regist^i-ed. If it was entered up between the 23i"d 
 July, 1860, and the 29th July, 1864, then a further seai-ch 
 must l^e made in the ereditoi-s name for a registered ^\iit of 
 execution ; if any l^e foimd, it must l>e ascei-tained whether 
 the writ has lieen execute<l : if it ha^ not, and if thi"ee 
 months have elapsed fi'om the registi-ation of the wi-it, Ijoth 
 the registered judgment and writ of execution may be dis- 
 regaixied. If the judgment has Ijeen entered up since the 
 29th July, 1864, a seai-ch should l>e made in the debtor's 
 name in the list of registered executions, whether his in- 
 terest m the land can Ix; reached by an elegit or not. K m • 
 
 {»\ See statistics ciieu l.y Lorxl St, Le^^narils, p. f.SO.
 
 SEAllCHKS Foil I>X'UMBRANCES, ETC. 491 
 
 execution has been registered at the date of completion, it is Chap. xi. 
 
 conceived that a registered judgment may be safely disre- . J'- — 
 
 oarded. 
 
 And, althouiih theoretically, a search oULiht to l)e made Wln^u to be 
 
 " _ " _ '^ _ _ niiidu m the 
 
 for five years preceding the sale in the names of former uamcs uf 
 owners, with a view to the possibility of prior judgments 
 having been entered up against them and kept alive by 
 re-registration, it is not usual in practice, -i*e^ even on pur- 
 chases by the Court of Chancery, to make such a search, in 
 the absence of special gTounds for suspicion ; nor to extend 
 the seai'ches to judgments against mortgagees or other 
 incumljrancers, or mere equital)le claimants upon the pro- 
 perty. In fact, as a rule, subject, of course, as every rule is, 
 to occasional exceptions, the searches advised by counsel are 
 theoretically imperfect and practically useless. 
 
 This short review of the existino- law of iudo-ments natu- ^„!"^^'*. ,„-, 
 rally suggests the (juestion, whether its benefits, as compared ^^^ ^'^^f*^^ 
 with its inconveniences, are such as to justify its con- law. 
 tinuance. The practice of entering up and registering a 
 judgment as a security for ]noney advanced, which had long- 
 fallen into desuetude, was virtually abolished Ijy tlie Acts of 
 1800 and 18G4 ; which, by depriving a judgment of its 
 statutory force as a charge, unless immediate steps were 
 taken to enforce it, rendered it impossible thus to create a 
 continuing security on the land. The question, therefore, 
 lies between those creditors who, in ordinary process of law, 
 have recovered judgments against landowners, and the 
 general body of vendors and purchasers, whose interest it is 
 that there shuuhl be no unnecessary hindrance to the free 
 circulation and transfer of land. 
 
 Now, as a matter of principle, it must be admitted that a 
 debtor's land ought to be within reach (jf his creditors, as 
 well during his lifetime as after his decease. There is, how- 
 ever, as regards the connnunity at large, a wide difference in 
 the practical application of this principle to the two cases of
 
 4D2 
 
 SEAIKHKS FoK IXCUMHKANcKS, ETC 
 
 Chap. XI. 
 Sect. ■-'. 
 
 a creditor's suit instituteil after the debtor's death, and the 
 
 course of action aoainst him under the existinn- law of 
 o o 
 
 judgments while he is living. In the former, the whole 
 expense of fixing and discharging the liability falls upon his 
 estate ; in the latter, a burdensome tax is thrown upon the 
 general body of vendors and purchasers, and, through them, 
 upon the entire community. If the total amount recovered 
 for judgment creditors in any one year, could be compared 
 with the aggregate exjDense occasioned to purchasei's duiing 
 the same period, by the operation of the existing law, the 
 latter, if we mistake not, would be found largely to exceed 
 the former ; and such a comparison would not, in any 
 adequate degree, represent the hardship, uncertainty and 
 inconvenience which are the necessary results of the present 
 system. If, therefore, the uniform good of the community 
 is to be preferred to the casual benefit of tlie individual, 
 there can be no doubt that as a matter of public policy, the 
 existing law of judgments ought to be swept awaj'. 
 
 But even supposing this to be premature, there is at an} - 
 late room for great and immediate improvement in the 
 existint!" system, and the folio win l-- suuuestions are offered 
 Avith this view, ','<:., that as a preliminary step to a ncAV 
 and more simple legislation, all tlie statutes now in force 
 relating to the law of judgments should be at once repealed, 
 with a saving for a limited period of the lights of judg- 
 ment creditors under the existing system — that all here- 
 ditaments of the debtor, of whatever kiiid or tenure, and 
 whatever may be the nature of liis estate or interest 
 therein, should be rendered liable to his judgment debts 
 — that the term judgment should l)e precisely defined — 
 tliat it should no longer be necessary to issue a writ of 
 elegit, or to take any proceedings before the sheriff — that a 
 judgment, if intended to operate as a charge on the land, 
 should be registered in the debtor's name in the Conunon 
 Pleas Office within a limited time (say fourteen days) from 
 the date of its being entered up — that the judgment creditor 
 should be at liberty, at any time within a limited period (.say
 
 SEARCHES EOR IXCUMBKAXCES, ETC. 493 
 
 three luunths) from tlie rcfjistration of the writ, to tipiilv to Chap. XI. 
 
 . , ... Sect. 2. 
 
 the (•ourt of Chancery, upon petition in a suiiiniary way, for 
 
 an order for tlie sale of his debtor's interest, and the Conrt, 
 should have such powers as to directing inquiries on, and 
 service of, the petition, as are provided by the Act of 1804 — 
 that the presentation of every such petition should be regis- 
 tered in the del)tor's name, in the C^ommon Pleas Office — 
 and until so registered should not in anyw^ise affect any here- 
 ditaments of the debtor, notwithstanding that any person 
 dealing with him may have actual notice of the entering 
 up and registration of the judgment — and that purchasers 
 and mortgagees, without notice of a registered petition, 
 should be protected in the same way as under the existing 
 law. 
 
 Wherever there is reason to suspect that the vendor may Crown deht^. 
 be a debtor or accountant to the Crown, search should Vie 
 made (except in the case of copyholds) (o) for Crown delits 
 and accountantships {p). The lien of the Crown, it may be 
 observed, attaches as from the time when the owner of the 
 land l>ecomes an accountant. All freehold lands iwsiy be 
 taken in execution b}" the Crown ; and the lien extends 
 to trust estates, and equities of redemption ; nor can it be 
 defeated by the execution of a power of appointment {q), or 
 l)y the assignment of an attendant term already held in 
 trust for the delttor or accountant (/•) ; and the lands of an 
 accountant are liable for moneys which become due from 
 him even subsequently to alienation (s) : and a purchaser, 
 evicted by the Crown, will have no allowance made him for 
 repairs and inq)rovements (t) ; and although copyholds aie 
 not extendible on (Jrown process, the exemption does not 
 extend to a lease of copyholds granted by license of the 
 
 {>,) 8 Ves. 391. Exch. 652 ; 6 Exch. 921. 
 
 (p) As to who are liable as accoun- ()•) Rc.c v. S/iut/i, Sugd. ')iS ; Hex 
 
 tants,aee33Hen.VIII.c. 39 ; 13Eliz. v. Lamb, 13 Pii. G49 ; Re;j. \. ]:Ui->, 
 
 c. 4 ; 6 Geo. IV. c. lOfj, s. 13 ; 6 Geo. nhi supra. 
 
 IV. c. 104, s. 7 ; Prid. on J. l.')9, et (s) Coxhead's case, P. Moore, 12n. 
 
 neq. ; Shelford Real P. Stat., p. f>96. {t) Rc.c v. Bailey, cited Mann. 
 
 (q) I'rid. rm .T. 1.54 ; Re;,, v. ElUs^. 4 Exch. P. 37, n.
 
 494 
 
 SEAlU'llKS von lN(rMHr,AN<'KS, i:t('. 
 
 Chap. XI. 
 Sect. 2. 
 
 lord (a), or, it is concoivi"(l, by special custom of tlie Manor. 
 But Crown debts do not affect the debtor's terms for years 
 in gross, whether his estate be legal or equitable, until the 
 teste of the extent ('•) ; so that an interme-<liato alienation 
 Itinds tho r*rown. 
 
 Registration 
 of. 
 
 Previously to the year 1 830 a purchaser liad no means of 
 ascertaining whether his vendor was a debtor or accountant 
 to the Crown. By the 8th section of the 2 & 3 Vict. c. 11, 
 no bond given to the Crown is to affect the debtor's land 
 until it has been registered. This section is not retro- 
 spective, and it may still occasionally be expedient to ascer- 
 tain (if possible) by searches at the Exchequer Office, and 
 amono- the Receiver-General's bonds at the Tax Office, that 
 no such liability was subsisting before the 4th June, 1830, 
 when the 2 & 3 A'^ict. c. 11 came into operation; luit in 
 practice such an inquiry is seldom, if over, made. 
 
 Re-regif.ti-y 
 of Crown 
 debts. 
 
 Re-registry of Crown debts vras at lirst not i-equired ; 
 liut by the 22 & 23 Met. c. 35 (.>;), the provisions as to the 
 re-registration of judgments were extended to Crown debts ; 
 so that in every case a search for five years will be suf- 
 ficient. 
 
 Future 
 Cro^\^l debts 
 not to affect 
 land until writ 
 of execution 
 issued and 
 rejnstered. 
 
 Searches now 
 to be made. 
 
 By the 28 & 21) Vict. c. 104 (y), future Crown debts are 
 not to afiect land as to a bond fide purchaser for value or a 
 mortgagee, even with notice, until a writ of execution has 
 been issued and registered ; and a new uiode of registration 
 is provided. It is material to observe, that Crown debts 
 become a charge upon the land inuncdiately upon the regis- 
 tration of the writ ; while, in the case of judgments, the 
 land must have been actually delivered in execution before 
 registration can 'oe efi'ected, or a charge created. The 28 & 
 20 Vict. c. 104 is not retrospective ; and it is therefore still 
 necessary to search for C*rown liabilities of a date prior to 
 the 1st November, 18G5, and since re-registered ; since that 
 
 (m) Prid. Judg. 155. 
 
 (r) Hex V. Lamb, 13 Pri. 6.59. 
 
 (x) Sect. 22, 
 
 (?/) Sect. 48 et seq.
 
 SKAIU'IIES Fon INCUMHliANCES, ETC. 40.") 
 
 <latc tlic soarcli must also, in iq)pii»priat(.' cases, cxtt'iid to Chap. XI. 
 
 executions, whicli are entered in the same I'oo-ister as execu- !_L-_ 
 
 tions under the 27 il" 28 Vict. c. 112. 
 
 The 2 c^- 8 Vict. c. 11 provided lor tlie rei-i strati on of a Kntry .>f .^atis- 
 qiup/iif^, and for th(> discharge of tlie dehtor's land, in certain 
 cases, without prejudice to the claim of the Crown on the 
 remainder; and now, under the 23 & 24 Vict. c. 115, satis- 
 faction of a registered Crown debt will be entered up b}^ 
 the registrar, upon a certificate of the connnissioners or 
 principal officer of the public department holding the bond 
 being filed at the office ; but, in the case of railway bonds, 
 it appears to l)e still necessar}^ to obtain a judge's order i" '1 A^ 
 befoi-e satisfaction can he entered up. ij 
 
 r^ 
 
 A registered I !>^ pendens, though not of itself an incum- L!:^ pendens. 
 brance, apart from the equity on which the litigation is 
 founded, fixes an intending purchaser with notice of any 
 adverse claim or unsatisfied charge, which may be the sub- 
 ject of the suit ; and in every case the Common Pleas 
 Register ought to be searched. If upon inquiry the suit is 
 found not to in^'olve an}' (juestion of title or charge upon 
 the property al)Out to be dealt with, it may be safely disre- 
 garded. The mere existence of a registered ^/.s pendens, 
 apart fi'om the question luised in it, is not a sufficient reason 
 for refusing to complete a purchase (z). 
 
 The 2 & o Vict. c. 11, which introduced the practice of Registration of 
 
 ^ - under 2 & 3 
 
 registering suits, provides that no lis pendens shall bind Vict. c. U. 
 a purchaser or mortgagee without express notice thereof, 
 unless and until a memorandum or minute containing the 
 name and tlie usual or last known place of abode, and the 
 title, trade, or pi-ofession, of the pei'son whose estate is 
 inteiided to be afiected thereby, and the title of the cause, 
 Szc, shall have been left for registration with the senior 
 Master of the Common Pleas; and liy the same Act a lis 
 jwndens l)ecomes void against the lands, as to purchasers, 
 
 (z) Bull V. Hutrluns, 32 Beav. Gl.^.
 
 496 . JsivVRciri'is for txcujibrancics, iotc. 
 
 Chap. XI. mortgagees, or creditors, unless re-registcred every five 
 ^^^^- '^\_ years ((() ; so tliat a search need only be made for that 
 
 period. Whether it can he safely confined to the name of 
 the immediate vendor, must depend upon the state of the 
 title, and upon the purchaser being satisfied that, on prior 
 sale-transactions, the us\ial searches have been made; and 
 the like remark applies to the other searches now under 
 consideration. In the case of a sale by trustees who have 
 full power to sell, and to give discharges for the purchase- 
 money, a search for lis pcmUiHi is often the only search 
 which is necessary. 
 
 Satisfaction of TTntil recently the only mode of discharging the registry of 
 lis pendens. ^ jj^ 'peiidevs was by ol)taining an order in the cause upon a 
 petition as of coin-se presented at the Rolls ; and on this 
 beino- filed with the senior Master of the Common Pleas, 
 satisfaction was entered in the register (h); but noAv, as in 
 the case of registered judgments, the 28 & 24 Vict. c. ll-', 
 empowers the senior Master to enter satisfaction as to any 
 registered pending suit, or lis 'jmidevs, upon the filing of an 
 acknowledgment by the plaintifi' in the form, or to the effect 
 therein mentioned {c). 
 
 Vacating the ^,-„| ^ioyv, where the litigation is determined, or is not 
 
 registration of -, -, j-a , ^ 
 
 a lis pendens, being hoiulfide prosecuted, the (Jourt may make a summary 
 order vacating the registration of the lis i^vd ens, withoni the 
 consent of the party who registered it ; and, on an office copy 
 of such order being filed, the senior Master is to enter a 
 discharge of the lis pendens on the register (d). 
 
 Special case is ^g j^^^y remark here, that a special case, filed under the 
 
 a lis pendens. '' . _ ^ - , ^ h-x i • . i 
 
 13 & 14 Vict. c. 35, IS a lis pendens (sect. 1/) : so also is the 
 duplicate of an administration summons filed under the 
 1.) & IG Vict. c. 80 (sect. 46) : so also is an administration 
 
 (a) And see 18 & 19 Vict. e. 15, 366. 
 s. 6. ('•) Sect. 2. 
 
 {h) Pask. Pr. 117; Dan. Ch. Pr, (c?) 30 & 31 Vict. c. 47, s. 2,
 
 SKAIU'HKS roll lXcr:\1HKANrES, ETC. -197 
 
 suit, US ivsi)cct.s estates sold uiidci- tlic decree (c): and lilhii!", Chap. XI. 
 
 . . . ? Sect. 2. 
 and not service, of the bill, is the connnencement of a Us ' 
 
 l>('n(l<'ns (/). If a hill is anien<led, the snit is pendent as to 
 any fresh matter introdnced into it, only as from the time of 
 amendment. 
 
 By the 114th section of the 2o & 2C) Vict. c. 80, any Winding up 
 
 \ pttitions. 
 
 petition for winding np a company under the Act was, if 
 duly registei-ed, made a Ih pendens nnder the 2 & 8 Vict, 
 c. 11. It was a common practice in winding up cases to 
 register the i^etition for the purpose of afiecting the estate 
 of the individual contributory, although, at the date of I'egis- 
 tration, there might ha no specific charge against it. But 
 the Court of Appeal, re\ersing a decision of the Master of the 
 Rolls, held that the section only authoiized I'egistration as 
 against the company {<j)\ and now the section is repealed (A). 
 
 When the property is copyhold, the Court Rolls should be <^'""i"t I^"ll^ 
 
 . . andlooal re^i-i- 
 
 searched for documents, nicumbrances, &c., not appearing on tera. 
 the abstract ; so, where the property lies in a district subject 
 to the Register Acts, viz., Middlesex, Yorkshire, Kingston- 
 upon-Hull, and the Bedford Level, searches should be made 
 in the local registers : these searches, both in the Court Rolls 
 and in the county register, should be extended over the 
 whole period covered by the abstract : cojDyholds, however, 
 are excepted out of the Register Acts of Yorkshire, Middle- 
 sex, and Kingston-upon-Hull : so also are leases at rack-rent, 
 and leases for a term not exceeding twenty-one years, where 
 the actual possession and occupation go along with the lease ; 
 1)ut, in practice, when such leases are assigned by way of 
 mortgage, it is usual to re(|uire them to be registered. It is 
 considered doubtful ^\•hether the exception ^s to copyholds 
 extends to leases of copyhold estates (/'). In practice such 
 leases are frequently registered, where tlie hmd is let Ibr 
 building purposes (/.). 
 
 (p) Dren- v. Earl of Norhury, ?> s. .'i, .as to //.•>• pciuJrns l)eing notice. 
 
 .1. & L. 267; see as respects chattels, (7) E.r pnrtc Thornton, L. \\. 2 Cli. 
 
 Berry v. Oihhons, L. U. 8 Ch. Ap. Ap. 171. 
 
 747. (/O See ?.0 & 31 Vict. c. 47, .=!. 1. 
 
 (/) Drexv v. Earl of Xorhury, uli {!) Siigd. 732. 
 
 fiiiprd. And See below, f'hap. XV., (/■■) Scriv. on '^"op., r>th Ed., p. 333. 
 
 VOL. I, K K
 
 498 
 
 SEARCHES FOR INCl'MBRANt.'ES, ETC. 
 
 Chap. XL 
 Sect. 2. 
 
 Local regis- 
 tries need not 
 be searclied 
 where land 
 registered 
 under 2.5 & 2(1 
 Viet. c. 53. 
 
 Bankniptey. 
 
 Notice of — 
 when immate- 
 rial. 
 
 Annnitits. 
 
 Where land situate in the counties of York or Middlesex 
 has been put npon the register mider the provisions of the 
 25 & 2C) Vict. c. 58, (ind vJiile it remains fJicrerm, the local 
 registries are to cease to ho applical)le (/). 
 
 In many cases the situation in life of the parties may 
 render it proper to search the Coiirt of Bankruptcy (m). Pur- 
 chasers without notice were protected by the 2 & 8 Vict, 
 c. 11, s. 12, and 2 & 3 Vict. c. 29, against acts of bankruptcy, 
 upon which no fiat had actually issued ; the provisions of 
 these statutes Avere repealed, but were, in effect, re-enacted 
 by the Bankruptcy Consolidation Act of 1849 (n) ; and 
 were not repealed by the Act of 1861. Under the 
 Bankruptcy Act of 18G9, any disposition or contract with 
 respect to the disposition of jDroperty by conveyance or 
 otherwise made by any bankrupt bond fide and for value, 
 with any person not having at the time notice of any act 
 of bankruptcy corumitted Ijy the l;)ankrupt and available 
 against him for adjudication is to be valid notwithstanding- 
 prior acts of Itankruptcy {o). The search should, in strict- 
 ness, l;)e for twenty years, but a five years' search is com- 
 monly deemed sufficient. 
 
 Notice of an act of bankruptcy was under the Act of 1849 
 immaterial if twelve months had elapsed without a fiat or 
 a petition for adjudication having been sued out or filed (/>) ; 
 and this provision was not repealed by the Act of 1861. By 
 the Act of 1869 the period for presenting a j)etition is limited 
 to six months from the date of the act of bankruptcy {q). 
 The search, when made, should extend to deeds of assignment, 
 composition, or inspectorship, registered under the proAasions 
 of the Act of 1861. 
 
 By the 17 & 18 Vict. c. 90, which abolished the laws 
 against usury, the Act requiring the enrolment of grants of 
 
 (?) See sect. 104. 
 
 {m) Cooper v. Stephenson, 16 Jur. 
 424 ; 21 L. J. Q. B. 292. 
 
 (h) 12 & 1.3 Yict. c. 106, s. 133. 
 (o^ 9,2 k 33 Vict. c. 71, s. 9.5. 
 
 (;>) 12 & 13 Vict.ss. 88, 134, which 
 sections were not repealed hy the 24 
 & 2.5 Vict. c. 134. 
 
 (r?)82 & 33 Vict, c, 71, s. G.
 
 SEARCHES FOR IXCUMBRAXCES, ETC. 499 
 
 life annuities was repealed ; Lut the 18 & 19 Vict. c. 15, s. 12, Chap. xi. 
 establislicd a new reo-ister of life annuities and rent-charo-e.s ' "'^^' " 
 not created by will or marriage settlement (/•). It is con- 
 ceived that the enactment would not Ije held to appl}- in 
 the case of a rent-charge for life reserved to a vendor as the 
 consideration, or as part of the consideration, for the sale of 
 property. The recent statutory provisions as to judgments 
 and Crown debts do not extend to annuities. 
 
 Where the estate lias been entailed, or has belonged to Recovery 
 
 . 1 • I 1 • • 1 , 1 deeds and 
 
 married women, it may be proper, m special cases, to searcii ackuowledp- 
 for inrolled deeds and acknowledgments under the 3 & 4 ^^^^^!' '^^' 
 
 ^ married 
 
 AVill. IV. c. 74 ; but such a search, it is conceived, is not women, 
 usual in practice, unless there be reason to suspect the exist- 
 ence of suppressed documents. 
 
 In some cases it may ]>e propci' to search at the office of ^i-ind drainage 
 Land Registry for rent charges created in respect of loans 
 under the Land Improvement Actsv (.s'). 
 
 ( 8 . ) I'irne for mo king seat rh. ca (.ind uiqairi tt<. Section 3. 
 
 Whatever searches and inquiries are deemed necessary, niakin^r 
 should, of course, be l)rouo;ht down to a point as close as pos- "^arches and 
 
 <=> i- J. inqmries. 
 
 sible to the time fixed for completion: some practitioner.s Searches &o. 
 make the search immediately after obtaining an opinion ^^'^^|" ^^ 
 upon the abstract, and a supj)lemental search immediately 
 before completion; Ijut the more ordinary course, it is con- 
 ceived, is Co~niaKe Ijut one search, and that immediately 
 before completion. 
 
 A solicitor will not lie alloAved ui:)on taxation, even as Unnece.^sary 
 
 costs of, not 
 
 between solicitor and client, the costs of searches directed b\- ali..\vr,i. 
 counsel, but which have, to the knowledge of the solicitor, 
 been rendered unnecessary l)y sul)sequcnt events {t). 
 
 ()■) The place of search is the same Debenture Act, 185G, 28 & 29 Vict. 
 as for judgments. c. 78. 
 
 is) See 27 & 28 Vict, c, 114, and (t) Lawtfnril v. Mahoncii, 3 J. k T,. 
 
 the former Acts there cited ; 33 & 34 97. 
 Vict. c. .5G ; see also the Moi-tgage 
 
 K K 2
 
 500 
 
 Chap. XII. 
 
 CHAPTER XII. 
 
 AH TO THE PREPARATION OE THE CONVEYANCE. 
 
 1. Gcvri'dJ riKiifprs rchdivii to, ainl to fJw form of. 
 
 2. Ah to the parth'^. 
 
 3. The recitals. 
 
 4. TJie consktei'otion — 'irordsi of coivej/ovre — (irid j^i reels. 
 
 5. The covenants. 
 
 G. The draft and eiujrossweid. 
 
 o .. 1 (V). Upon a sale in consideration of a otoss sum, the pnr- 
 
 Section 1. \ / ^ ^ 
 
 chaser, havino- accepted the title, is bound, subject to any 
 
 General mat- ^ 
 
 ters relating special stipulation in the contract, to prepare the convey- 
 fornTof. " ^ ance, and tender it for execution to the vendor {a) ; and 
 Purchaser pre- reason seeuis to favour the same rule even where the con- 
 parescon\ey- ^-^jpj^j^^j^j-^ jj^ ^ leut-charge, although the practice in such 
 cases appears to be unsettled Qi). In some provincial dis- 
 tricts it seems to be the practice to stipulate that the con- 
 veyance shall be prepared by tlie vendor's solicitor at the 
 expense of the purchaser. 8\ich a stipulation would no 
 doubt be regarded with disfavour by the (Courts. It is, 
 however, not unusual, and is often a matter of general con- 
 venience, upon a sale of property in many small lots, for 
 l)uilding or other similar purposes, to have a model form of 
 conveyance prepared, and to offer it to purchasers at a 
 moderate specified charge. 
 
 A custom in a manor,' that the steward shall prepare all 
 
 Custom, that 
 
 steward pre- surrcndei's for a reasonable fee, appears to be valid (f). 
 
 pare siir- 
 
 i-enilers. ^^^^ ^^^^^ ^^q^ 241. lien. v. Dixhop's Stoke (Lord of Manor 
 
 a.) 9 .farm. Conv. by S. .^.IS, of), 8 D.nvl. P. C. 60S. 
 
 (r) Ilex V. RHjfje, 2 B. & Al.l. f^oO ;
 
 I'ltKl'AKATlUX ol' LUNXKYAXCK. 501 
 
 111 the absence of special custom, the lord is not bound to Chai). XI r. 
 admit to several tenements by one admittance. When tlie _ '_!_ 
 admittances arc several there must lie se\eial stamps and -^'^ ^'^ '^u>'- 
 
 ^ renilurs, &c., 
 
 fees to the lord: but the steward cannot, in tlie al>sence of in case of sevc- 
 special custom, claim several fees, as such ; but merely a 
 qaardarit iiicralf : and the amount of the fees claimed l)y him 
 as customary may itself show that tliey could not have been 
 payable from the commencement of legal memory {d). For 
 the purpose of the above rules, fractional shares in a single 
 tenement, held by tenants in common, constitute separate 
 tenements so long as they are separate ; l)ut not after they 
 are re-united on tlie Court Rolls (c). 
 
 Even if a contract for purchase of an etiuitalde interest <-'"'ivt^.vani^e of 
 
 '■ _ e«[uitaljle 
 
 can in itself amount to a conveyance (/), the purchaser is interest, 
 entitled to a formal assurance, if such .ippear by the con- 
 tract to be necessary, in order to cairy the intention of the 
 parties into effect (fj). 
 
 As we liave already seen (h), the preparation of the con- Prejiaratinii of 
 veyancc is not, necessarily, a waiver oi ol)]ections to or Hccvi-tance of 
 requisitions upon the title, thougli, as a general rule, it *'''''^"- 
 ought not to be prepared, until it is reasonably certain that 
 the title Avill be accepted; and the draft, if submitted for 
 approval on the vendor's behalf, should be sent expressly 
 without prejudice to any pending re(|uisitions on the title. 
 
 It has been held, that a purchaser cannot compel the Whether pur- 
 \'eiidor to get in an outstanding eipiitable interest Ity a deed ,ji;'irt;ontstaiid- 
 distinct fn^m the jjeneral conveyance (i). It is, however, i"y '_nttre.>:^ts 
 
 ° ./ \ / ami mcum- 
 
 conceised, that this doctrine must be applied with hesita- brauces to be 
 tion (/.j ; and that, subject to the (|ii('stion of expense (/), a ratedeeJ. 
 purchaser may generally object to have his conveyance in- 
 
 ((/) Tnhd-in \. (■''ir'/i((i;-2ii L. T. C. L\ 1 ','.'. 
 
 ■Ill, (}. V,. ; -' .Fur. X. S. o'Ji. {/<) >"y"", 1' lo-. 
 
 (c) (^uccn V. Eloii t'vlh'jc, 'J xVd. & (i) Jiccro^ v. (utf, 1 Deav. o/ti. 
 
 J'^U. N. S. 5-i(3, aud cases cited. (/•) Sui--. ".58. 
 
 (/) But see as to this, AW^Jcw, p. 24(j. (/) As I" wliicli. riik infra, < 'h. 
 
 {'/) Ftirner v. I/rphnni, 2 Y. & C. MIT.
 
 .■)(): 
 
 PltEl'AKATlON OF CONNEVANCE. 
 
 (Jhaii. XII. 
 Stjct. 1. 
 
 J] iiy require 
 continuati<in 
 of do>il)tful 
 title by 
 separate deed, 
 isciabh. 
 
 cuml»LTtMl with matter arising from tlic complicated state of 
 tlie title {in) : indeed it may often, especially when the pro- 
 perty is likely to he much subdivided, be most desirable to 
 avoid any reference upon the conveyance to a voluminous, 
 although apparently satisfactory^ earlier title. And it is 
 conceived that (subject to the question of expense,) a pur- 
 chaser ma}^ insist on taking his conveyance in the form 
 most convenient to himself, provided that the vendor is not 
 therel)y prejudiced (ii) ; and on keeping off the face of his 
 conveyance any matter which, although agreed to be waived 
 as an objection, yet tends to throw a doubt upon the title, 
 oi- any collateral matter which may hereafter embai-rass the 
 proof of the title (o). If, for instance, trustees were to sell 
 under circumstances not necessarily appearing upon the face 
 of the conveyance, but amounting to a breach of trust, and 
 the vest Ills que trust agreed to confirm the sale, the pur- 
 chaser might, it is conceived, insist upon taking this con- 
 firmation by a separate deed ; for to include it in the 
 conveyance Avould oblige him, upon a resale, to prove who 
 were the parties beneficially interested, and might give rise 
 to questions which would have been wholly innnaterial to a 
 8ub-purchaser without notice of the breach of trust. 
 
 Ail nuneces- 
 sary matters 
 and parties to 
 be kept oli' 
 conveyance. 
 
 It may, in fact, be laid down as a general rule in pre- 
 paring conveyances, that not unly should all objectionable 
 or doubtful matter be kept off the title, but that nothing 
 should be brought on to it, the introduction of which is not 
 evidently necessary or expedient: in proportion as additional 
 matter is introduced into a deed, and additional persons are 
 made parties to it, the chances of some error or ambiguity 
 existino- in it are increased. 
 
 I'urcliaser'.s 
 riglit to se]ia- 
 rate convey- 
 ances. 
 
 And when the nature of the title to the property renders 
 it desiraljle so to do, as on a purchase of undi\-ided parts of 
 
 (m) Hec Joncd v. Lcicis, 11 Jur. (J55. 
 .511 ; and 1 T)e (L & S. 245 ; stated (") See Clcrh v. Ma)/. lU BeaV; 
 
 infra. -1?. 
 
 (/') Cd'ijhv v. (.'ininTli/hl, .lolms.
 
 PREPAKATION OF CON^'EVAXCE. 503 
 
 a freehold estate and of the entirety of a judgment debt (^>), Chap.xil. 
 
 Sect. 1. 
 
 the purchaser may insist upon taking separate conveyances, 
 
 and upon apportioning the purchase-money as lie thinks 
 lit : but this doctrine must, of course, be confined within 
 reasonable limits ; for a vendor uf a compact estate, held 
 under one title, could hardly Ije required to convey it in 
 lots, by several assurances, merely to suit the com'enience of 
 the purchaser; at any rate not without being paid all__ ad- 
 ditional costs thereby incurred : and it is obvious that the 
 excessive multiplication of conveyances might, apart from 
 the (piestion of costs, be reasonably ol^jected to V»y a vendor. 
 The proper rule would seem to be, that the purchaser's 
 right to separate conveyances depends not upon the question 
 of convenience, considered merely with reference to his own 
 private views in respect to future dealings with the estate, 
 but upon his being able to show that such a mode of carr}'- 
 ino- out the contract is that which, in the absence of aiiA* 
 special instructions, would probably be recommended by 
 experienced conveyancers. 
 
 Upon the purchase of a property in mortgage, the pur- ]'ixc;iiitinn.< to 
 chaser should pay off the charges, and take a clear convey- p„,ch:ise of 
 ance of the legal and equitable estates from the Aendor and 
 his inoi'tgagees ; and then, if such be the aiiungeinent, 
 execute fresh securities to the latter for the amount which 
 is to remain upon the property. By taking a mere convey- 
 ' ance of the equity of redemption he becomes liable to be 
 compelled to redeem, not only the mortgage upon the parti- 
 cular property, but all other subsisting mortgages of other 
 properties by the same mortgagor Avhich, either before or 
 after his own purchase, become united in the same mort- 
 gagee ; and this although he bought in ignorance of their 
 existence (q). 
 
 (li) Clarlc V. Maij, 10 I3cav. 273. suiiva. The 7th section of the 37 & 
 
 (7) Bccror v. Luck, 4 ICq. 537 ; Loix- 38 Vict. c. 78, does notaffeet the equit- 
 
 day V. Chapman, V.-C. Hall, 15 IVraicli able right of a mortgagee to consoli- 
 
 1875 ; the same pnucii)]e ap]illes in date his mortgages from the same 
 
 the case of ii mortgage of an C(iuity mortgagor. This section, it is under- 
 
 of redemption ; J'fd-.ir v. f.^irl-^ nh'i stood, is al'ont to bo repealed. f:>txr^ 
 
 estate in mort- 
 o'a*''e. 
 
 1c/^£^C^iA e^ ^c^f /?^ -| iS-<^3^^"^'^<'-'^7-
 
 i()4 
 
 I'KKl'AliATInN oK C( )X VKYANcK 
 
 UikIl-i- a contract tor the piucliase from a laortgaj^or of 
 _ his mortgaged estate, free from incumbrances, the purcliaser. 
 His right to -with the concurrence of the mortjj'aoee, may so take his 
 
 keep mort- & o ' J 
 
 u^age debt on conveyance as to keep the mortgage on foot ; but he must 
 procure his Nendor to be discliarged from all liability, and 
 pay any extra expense which may be occasioned by taking 
 the conveyance in that form (/■). 
 
 Chap. XII. 
 Sect. 1. 
 
 foot. 
 
 Disuutailiiij. 
 assurance. 
 
 So, a purchaser from a tenant in tail, may, it is submitted, 
 insist upon the property being disentailed at his own expense 
 b}^ a sepai'ate deed ; and may reasonably object to any un- 
 necessary exposure of his title in a public ofKce. 
 
 tjtatutniy The Lands Clauses Consolidation Act, 184.5, and the 
 
 way'coiivey- ^^'ai'lier I'ailway and other similai- Acts, contain statutory 
 '''"^'''^- forms of conveyance to the several companies ; the use of 
 
 these forms, in preference to the ordinary instruments of 
 assurance, is not obligatory : but inasmuch as an extia- 
 oidinary efficacy («) is given to conveyances made according 
 to the statutory form, ov as near tJajreto as the circuiii- 
 stances of the ease a'lll admit, it seems to be desirable to 
 frame the assurances as much upon the model of the statu- 
 tory form as may conveniently be ; in one case, where the 
 deed was not in the statutory form, it was held that the 
 company were not bound to register it under the provisions 
 of their Act (t). 
 
 Hhort parlia- Certain short forms authorized by Acts passed iii the 
 
 nieiitary forms ^^.,^^iQl^ of 184-5 have, by the universal consent of the pro- 
 of 1S4d. . . . 
 
 fession, been consigned to a deserved oblivion (a). Such 
 
 enactments are either unnecessary or mischievous ; — umie- 
 
 cessary, if the parliamentary form would, if unauthorized by 
 
 Parliament, merely express in fewer wortls the meaning of 
 
 the forms in ordinary use : and nnschievous, if an unnatural 
 
 and secondary meaning is gi\'en l)y Statute to words which 
 
 (;•) Cooper v. CavlKfijId, Johns. N. S. y72. See 2 & 3 Will. IV. c. 110, 
 
 '379, 3. 90. 
 
 is) See 8 & 9 Vict. c. 18, .s. SI. («) See 8 & 9 A'ict. c. IIP ; and, a.^ 
 
 U) Re General Ccnuicri/ C"., 2 -Tnr. to Ticases. c. 124.
 
 U-^- 
 
 PliEPAKATiUX OJ' C(».\Vi;VA-N( K. 50." 
 
 aif [>riiud facie clear and intelligiljle ; fur tlic etiuct is to Cliap. XII. 
 induco not merely uncertainty, but positive misconception, 
 in the mind of the unprofessional reader. For instance, a 
 lessee who has, in the usual way, covenanted not " to carry 
 on any trade or business" upon the demised premises, may 
 feel a reasonable and saving doubt whether he is safe in 
 using them for a sch(»ol (.'•; : but, unless more addicted than 
 is customary to the perusal of Acts of Parliament, he pro- 
 bably will scarcely suspect that such an occupation is for- 
 bidden by an engagement, not to " use premises as a shop ;" 
 which is, nevertheless, the statutory equi\'alent to the ordi- 
 nary covenant (//). If brevity be the only or the predomi- 
 nant desideratum in a legal document, it would be quite 
 
 possible, with the aid of the Legislature, to express the , / j) f^ Lj^^^**** 
 
 greater part of an ordinary assurance, algebraically ; which 
 ^vould at least have this advantage, ch., that a person who '^ 
 liad entered into covenants .c-\-i/+z, would hardly venture 
 to act upon his own ideas as to the unknown value and 
 signification of these mysterious letters, without consulting 
 tlic interpretation clause of the Statute to -which they owed 
 their legal eliicacy. 
 
 Upon a sale in many lots of an estate subject to an iiicum- Iiiciiiubrancc- 
 
 _ upuii sale 111 
 
 Ijrance which is to be paid ofi* out of the purchase-mone}', lots to be jjot 
 expense may be saved by taking a release t(j the ^'endor, Ji^eZ 
 instead of making the incumbrancer concur in the several 
 conveyances : and this, when the parties ai'e on good terms, 
 is us\ially acceded to ; although it might probably be 
 resisted, either by a purchaser, or by the incundjrancer. 
 
 Where, as is often desirable, a subsisting incumbrance is Iii'^^ii"^'i'aiice», 
 
 ^ now to be 
 
 to be kept on foot for the purchaser, the moi'(' pi-udent kept on foot 
 course appears to be not to rely on a meiv declaration ol bcuetit. 
 intention, but to let the sum itself", aii<I also the term of 
 
 (x) iSee JJoc d. Bisk \. h'tiliii;/, 1 (!t Jo. HI ; WlHingnji \, luj'j(.rs, '1 Dc 
 
 M. & S. 05; A't;«^; V. -S'oic/', 1 Him. IJ. ,1. & S. (j-J. 
 
 X. S. 517 ; Wirkcndcn v. Webster, 2 (//) .S..e 'irid sc-btdulr to 8 & 9 Vict. 
 
 JuF; N. .S.590; 5 E. & B. 387 ; Joliv- c. 121. 
 itone V. ITaJl, 2 Jur. N. S. 7S0 ; 2 K.
 
 .J0(j 
 
 PRErAllATION OF CONVEYANCE. 
 
 Chap. XI r. 
 Sect. 1. 
 
 As to 
 
 restrictive 
 e.vceptioiis, 
 
 and reserva- 
 tions of earie- 
 mentf<. 
 
 years, if there be one for securing; it, be assigned to a trustee 
 for the })urchaser: or to let a declaration of trust be executed 
 Ijy the incumbrancer (:), and the legal owner of the term. 
 But an express declaration that the incumbrance is to be 
 kept on foot will, of itself, prevent a merger (((). 
 
 When land is sold subject to restrictive covenants as to 
 user, to be created de noco, it is desirable to except from the 
 granting part of the conveyance all rights, privileges, and 
 casements, the enjoyment of which would be inconsistent 
 with, or a breach of, the subsequent restrictive covenants. 
 And in such a case, as also when rights, privileges, or ease- 
 ments are under the agreement to be made the subject of 
 express reservation or exception, it is desirable to state in 
 the declaration of uses that the property shall remain to 
 such uses as shall give full effect to the subsequently con- 
 tained exceptions and reservations, and (sulyect thereto) to 
 the uses subsequently declared. An actual re-grant is some- 
 times resorted to ; but this may give rise to difficult}^, or at 
 any rate additional expense, if the estate is to be conveyed 
 to uses in settlement ; and the plan above suggested seems 
 to be equally efficacious. 
 
 Separate deed^i ^Yi^\ [t may be remarked, that it is generally inexpedient, 
 
 for separate . , , . . 
 
 matters, &c. and, eventually, false economy, to comprise several distinct 
 estates or matters in a single deed. 
 
 Act for merger 
 of satisfied 
 terms . 
 
 As a general rule, the assignment of satisfied terms is 
 rendered unnecessary or impracticable by the Act of 8 & 9 
 Vict. c. 112 : the Act, however, does not appear to extend to 
 copyholds, customary freeholds (/>), or lraseh(jlds (c) ; and it 
 seems doubtful whether either the 1st or 2nd section extends 
 
 (:) See Medley v, Hovton, \i Sim. 
 •i-26, 229 ; Walts v. Symes, 1(3 Sim. 
 G40 ; but see S. C, 1 De G. M. & G. 
 240. See, on the same subject, 
 Coote ou Mortgages, 3rd ed. 39 i ; 9 
 Jarm. Conv. by S. 213, 214 ; Walrotf 
 \. CfiuJor, r, Ir. .Tiir. 4'.'. 
 
 {(() Jaiactsun v, ,Steiii, 21 Beav. 5, 
 13. 
 
 (6) See Da\ . Concise Conv. Prcc. 
 3rd cd. 79. 
 
 ('■) That is, where a term is created 
 liy .snl>-deni)po : see and consider sect. 
 3 of Act.
 
 I'llEl'AKATlON OF CONVEYANCE. 507 
 
 to any hereditaincnts other than "land" technically tsu Chap. XII. 
 
 calle«l {(I). But a purchaser is entitled to have an outstand- ' 
 
 ing unsatisfied term assigned or surrendered, even "where by 
 a decree of the Court, provision has Ijeen made for satisfying 
 it (e). 
 
 Where, before the passing of the Act, A., who although ^f^ce v. PiUc. 
 not in fact, yet believed himself to be, the owner of a free- 
 hold estate, mortgaged it to B., and an old term for years 
 was at the same time assigned to a trustee, in trust for B. 
 and to attend tlie inheritance, it was held that this term 
 could not, after the 31st December, 1845, be used in eject- 
 ment on behalf of a person claiming the estate by a title 
 paramount to that of A. ; although it might, if requisite, 
 have been used as a defence by a party claiming under B. (/). 
 
 And it seems probable that a satisfied term, which retains rrotection of 
 a quasi existence inider the Statute, does l)y no means uni- term under 
 versally afford to a purchaser the same protection which it '' ^® ^ ^ " '^• 
 would have afforded to him under the old piactice. If he 
 be in actual possession of the property, it may enable him 
 to resist the attack of an adversary ; but, if he be dis- 
 possessed, it apparently gives him no facility for recovering 
 possession: considered as a legal weapon, it is, in fact, a 
 mere shield, and not a sword. 
 
 In one case, where, before the passing of the Act, a term ^^^ "'■ J^"<^^- 
 was declared to be heW in trust for securing a mortgage 
 debt, (part of which was money for securing which the 
 term had been originally created, and the entirety of which 
 was secured by, as was supposed, a mortgage of the reversion 
 in fee,) and subject thereto in trust for A. and B., who were 
 supposed to be entitled to the ecjuity of redemption in fee, 
 l>ut the reversion in fee, expectant on the term, was in fact 
 
 ('/) ]3av. C. C. P. 75, 7'J. and seu Doc v. Mrndtsdalc, tiki 081', 
 
 (f) I'itronije v. ILtwkcs, 2 Jur. N. y. and Freer v. Hesse, 4 De G, M. & G, 
 
 ;3S8. -i.'^fi. 
 (/) Dot V. Price, li] >r. .\: W. Ii03 ;
 
 .308 I'KKI'AKATloX ol" ( ( »N VEVANCi:. 
 
 (.'liai>. All. \ust(jd ill X. under a prior concealed conveyance, and in 
 
 _ _^^ ■ * 1847 A. paid oft" the mortgage, and subsetpiently brouglit 
 
 an ejectment against X. on the demise of the trnstee of tlie 
 term ; tlie Court of Queen's Bench intimated a doubt 
 wlietlier tlie payment of the sum due on the original 
 security, by a person supposed to be, but who was not in 
 fact, the o^wner of the equity of redemption, rendered the 
 term a satisfied term within the 2nd section of the Act {[/) ; 
 and held that, at any rate, the term had not become atten- 
 dant on the inheritance, either by express declaration — 
 there having been no such declaration — or by construction 
 of Law, — for the trust was expressly declai-ed to be for A. 
 and 15., who had not the inheritance, although they were 
 supposed to be entitled thereto when the declaration of 
 trust was executed, — and that the term was therefore still 
 in existence (Jt). This decision, and the accompanying dic- 
 tum, which, if correct, would materially restrict the operation 
 of the 1st section, and go far to reduce the 2nd section of 
 the Act to a dead letter, are not understood to have met 
 A\ath genei'al approbation (i), or to have materially affected 
 the practice of conveyancers. 
 
 Cottrdl V. In a case at Law, where a party for whose benefit a term 
 
 "^"*' had been assigned before the passing of the 8 .^ Vict, 
 
 claimed the protection of the term under that Act, the 
 Court held that the proper way of testing his right to such 
 protection was to consider whether, if that Act had not 
 been passed, Equity would restrain him from setting up the 
 term (A-) ; and where a satisfied term was assigned before 
 the passing of the Act as a security for money advanced to 
 a tenant for life, under a settlement of the fee, and to 
 attend the inheritance, the ( V)urt of Exche([uer held, follow- 
 ing the authority of CuffreU v. Rdf/lic^, that the term could 
 not be set up against the i)arties entitled in remainder, the 
 
 \>j) "The term clearly was a satis- 771. 
 tied one." Sug. on Stat. 292. (/) Hue Sug. .Stat. 2'.t4. 
 
 J/} Doc 'I. Chni V. Jonef:^ l-l (,>. B. i/) Ci)t/rc'l v. //ii;/f,e.<, 1.'. C. B. oo'I.
 
 rKKPARATKJN OF CONVICYANCK. 
 
 509 
 
 mortu-au-oc liaviiiLr luid clear notice of the scttleiiiciit (/;. Chap. XII. 
 
 '^ ® '^ . ,. Sect. 1. 
 Where, before the passing- of the Act, a moi'tgagcc in lee, on 
 
 advancinjj,- liis money, stipnlatcil fdi' an assignment of an 
 
 ontstanding satisfied term hehl in trust for the mortgagor, 
 
 and this was agreed to, but no assignment was executed prior 
 
 to the passing of tlie Act, it was hehl that as the term, 
 
 although satisfied, was not simply attendant, it reuiained 
 
 unmerged Ijy the Act (m). Of course, the same result 
 
 would follow in those frequent cases where the term has 
 
 been actually assigned in trust for the mortgagee, his 
 
 executors, administrators, and assigns, and sul)ject thereto, 
 
 in trust to attend the inheritance. In such cases, the Act 
 
 would not operate luitil the satisfied term had also become 
 
 simply attendant, l»y the performance of the secondary 
 
 trusts to which it was su])jected, prior to the passing of the 
 
 Statute. If, however, as is sometimes found to be the case 
 
 in titles, the term was assigned simply for the mortgagor, 
 
 his A^n-.s' and assigns, and to attend the inheritance, and 
 
 was so held when the Act came into operation, the term, it 
 
 is conceived, would probably be held to liave merged. 
 
 Upon a sale of copyholds, it has l»een a fretjuent prac- -•^■'' to sun-en- 
 
 ■ . , (leriiitf copv- 
 
 tice, with a view to saving or postponmg payment of the h..l.ls to uses. 
 fine on alienation, and the expenses of admission (vi), to 
 take the surrender to tlie use of the purchaser's appoint- 
 ment, aiid in default of appointment, to the use of himself 
 in fee : but this, as it leaves the vendor liable as tenant, 
 ought to 1)6 resisted by him if the incidents of tenancy are 
 onerous. And it has been held that the lord of a manor 
 need not, in the absence of special custom, accept a surrender 
 so framed (o) ; although if he accept, he must subsequently 
 act upon it ( p) ; ami a copyholder has universally the right 
 
 (/) Plant V. Tai/Ior, S .Tur. N. S. De G. M. & G. Q',S ; 9 Ha. 698 ; .an.l 
 
 140 ;7 H. &X. 211. see Reg. \. OarIa»il, L. TJ. .1 Q. B. 
 
 {///) Sliair V. JoJniMti, 1 Dr. & Sm. 2C^9 ; Garland v. .Vfad, L. ]{. G Q. I',. 
 
 412. 441. 
 
 (ii) Rr.r V. OinulJe, 1 Ad. & E. 283. {p) Eddhston v. Collins, 3 De G. 
 
 (.>) Flack V. Downim/ CoUer/e, 13 M. k G. I. 
 f\ P., 94.''i ; see fflass: v. Ri'chard.inn, 2
 
 510 
 
 1'1U:I'AJ{AT1<)X OF CONVEYANCE. 
 
 Chap. XII. 
 Sect. 1. 
 
 to suiTciulcr to the use of his -will (q) : and may, therefore, 
 now that a snrrender to the use of a will is unnecessary, 
 devise his copyhold hereditaments so as to create a valid 
 power of appointment. 
 
 Section 2. 
 
 As to the 
 parties. 
 
 ■\Vho to be 
 
 parties. 
 
 (2.) As to the pdii'ics. 
 
 All persons whose concurrence is necessary in order to give 
 to the purchaser the full benefit of the contract, must, of 
 course, he parties to and execute the conveyance : and it is 
 often desirable that persons from whom nothing moves by 
 the deed should be parties to it, for the purpose of affecting 
 them with notice of its contents, and preserving indisputable 
 evidence of the fact of notice. 
 
 .Judgment 
 
 creditors, 
 
 when. 
 
 Previously to the 27 & 28 Vict. c. 112, by which, as we 
 have seen (r), a judgment does not affect land until it has 
 been actually delivered in execution, if tlie title were such 
 that judgment creditors could at Law take the property in 
 execution, this alone entitled the purchaser to require their 
 concurrence ; even though Equity might by injunction have 
 restrained the exercise of their legal right (n) ; so, also, where 
 the judgments were a charge upon a mere equitable owner- 
 ship, the purchaser might, in certain cases, be entitled to 
 require the concurrence of the judgment creditors. Thus, 
 where A. agi*eed to sell to B., who accepted the title, paid 
 part of the purchase-money, and was let into possession, but 
 took no conveyance, and A. in a suit against B., to establish, 
 his lien, obtained a decree for sale, a purchaser, under this 
 decree, objected to complete without the concurrence of the 
 judo-ment creditors of B., whose judgments were prior to 
 the decree, but who were not parties to tlie suit ; and the 
 olqection was held to be valid (t). Under the present 
 
 (q) Flach V. Downmr/ College, supra. 
 
 (-;■) Supra, Ch. XL, sect. 2. 
 
 (s) CraddorJc v. Piper, 14 Sim. 310. 
 
 (t) Governors of Grey-Cout Hospital 
 V. Weitminster Improrement Cornmis- 
 '^ioners, 1 De G. & Jo. 531.
 
 PREPARATION OF CONVEYANCE. 511 
 
 Law, it is conceived that unless there has Ijccn' actual Chap. XII. 
 delivery in execution at Law, or what is tantamount ' '' . 
 
 to it in E(£uity, viz., a decree or order of the Court 
 establishing the lien (ii), in either of which cases the 
 concurrence of the judgment creditor is clearly necessary, 
 the pin"chaser cannot require hiui to he a party to the con- 
 veyance mei'ely hecause he has an inchoate right, which, if 
 enforced, might ripen into a charge ('•) ; hut the purchaser 
 should not part alisolutely with his purchase-money until 
 satisfied that such inchoate right has not ripened into a 
 cliarge. 
 
 In the case of a resale l>efore completion, where the con- "^^'l" thfi- fii-^^t 
 
 ■^ jiiirchaser 
 
 veyance is made direct to the sub-purchaser (B.) and there .sin.ui.ibep.ai-tv 
 is no increase of price, it seems to be better not to make the direct to std,- 
 original purchaser (A.) a party to the conveyance, but to let l""'''^>''^^'"'- 
 him sign a memorandum aiithorizing the vendors to convey 
 to B. in substitution for himself: a duplicate of such memo- 
 randum should be given to B. The practical objection to 
 making A. a party seems to be this, viz., that if he has 
 in any way dealt with or incumbered his interest under 
 the agreement ; and the fact, although unknown to B., were 
 to come to the knowledge of any future purchaser or mort- 
 gagee (C), there would be a difficulty in making out a 
 marketable title ; for althougii B., taking the legal estate 
 without notice of such dealing or incund)rance, would 
 acquire an indefeasible title (x), which he could transmit to 
 C. although afiected with notice, yet it might be impossible 
 to adduce evidence which would be satisfactory to C, of the 
 fact of the want of notice on the part of B. (//). 
 
 And where it is a term of the contract that certain specified Stipulation 
 
 tliit imrif^cGS" 
 
 persons shall conciu', the vemloi' cannot decline to procure sary parties 
 
 shall concur, 
 is liindin;^. 
 ((') «S'(/j)m, Ch. XI., sect. 2. not deprived B. of the i)rotection 
 
 (r) See Earl of Cork v. Russell, L. T?. afforded by the legal estate, sed qua-re. 
 13 Eq. 210; and compare Mildred v. This .section, it is understood, is about 
 Avstin, L. R. 8 Eq. 220. to be repealed. 
 
 (x) It is conceived that the 7th (y) See Freer v. Ilessc, 4 Do G. M. 
 
 section of the 37 & 38 Vict. c. 78, has it G. 495.
 
 512 
 
 J'KKPArvATtOX OF ( i »^-^•EyANC•R. 
 
 Cliap. XII. []^^.[^■ e-niicMinviicc on the urouud tliat they arc in lact unno- 
 
 Se(jt. -2. '^ -^ 
 
 cessary parties (:) : l)nt it would appear that he cannot be 
 
 re(piire<I to procnrt> tlte concurrence of \innocossary parties, 
 upon the mere ground that he has it in his power so to do (a). 
 
 Vendtir must 
 in absence of 
 sti]inlatii>n, 
 procure con- 
 currence of 
 necessary 
 pai-ties. 
 
 Sale by mort- 
 gagee, luider 
 p<t\\'er of mort- 
 gagor's con- 
 currence, not 
 upcessarv. 
 
 Biit the vendor will be compelled, even in the absence of 
 express stipulation, to procure the concurrence of parties 
 wlio are bound to convey at his request (/>), e.g., trustees of 
 the legal estate (c) ; and in one case a purchaser of copy- 
 holds, who had acquired the whole legal and beneficial 
 interest, was nevertheless held entitled, in a suit against his 
 vendor, to require the concurrence of mere nominal trustees 
 who had never been admitted under a voluntary covenant 
 to surrender ((?). Of course, a vesting order would be equi- 
 valent to a conveyance. A direction in a decree for specific 
 performance that the vendor shall convey has the same 
 effect as a direction that the vendor "and all other necessary 
 parties" shall convey (c). 
 
 Upon a sale by a mortgagee under a valid power of sale 
 duly exercised, the purchaser cannot require the concurrence 
 of the mortgagor (/) ; although by the mortgage deed the 
 latter agreed to join in any sale, if required {(j). 
 
 Mortgagor 
 selling free 
 from incum- 
 brances must 
 procure con- 
 cairrence of 
 mortgagee. 
 
 A mortgagor, selling as an unincumbered ownier, must, of 
 course, procure the concurrence of his mortgagee (Ji) : so, a 
 tenant in tail in remainder wall he decreed to convey a base 
 fee, and to covenant to bar the remainders over upon 
 becoming tenant in tail in possession (i). 
 
 iz) Benson v. Lamh, 9 Beav. 502. 
 («) See Corder v. Monjan, 18 Ves. 
 344. 
 
 (6) See 1 Madd. 11 ; V«di<j<iii v. 
 ^Mler, 2 Sch. & L. 160, Ifiti. 
 
 ,v>., -^ . r-- ''^^.^{r\ See now as to a bare trustee 
 
 jLAcAXceC (f- nc<c^£t et2xic^^^-^ ^ og Y'xci. sect. .5 & G ; and as to 
 cCctfr^'m^k^^'^'''^ 3? C • what is a bare trustee within the Act, 
 
 O (d) Steele v. WoUe}-, 28 Beav, 46G ; 
 
 but no costs were given ; .led qvevre. 
 {e) Mhiton v. Kirimod. Ij. R. •? Ch. 
 
 Ap. (314; affirming V.-C. S., L. V.. 1 
 Eq. 44!». 
 
 (/) CUiy V. Sharpe, Sug. 396 •,A1kn 
 V. ilartin, 5 Jur. 239, R. 
 
 {(j) Corder V. Morgan, 18 Ves. 344. 
 
 (/() As to the power of the leg.nl 
 personal representative of a mortgagee 
 to convey the mortgaged est.ate, see 
 37 & 38 Vict. c. 78 sect. 4, and ride 
 supra, pp. 15, 16. 
 
 (i) Lord BoUnr/hr (ike's mse, 1 Sch. & 
 L. 19, n.
 
 PREPARATION OF CONVKYANCK. 513 
 
 Upon the sale of a bankimpt's estate, he is usually made Chap. Xll. 
 to convey and covenant for title (/) : his covenants, how- 
 
 ever, are obviously of little value ; and it would seem that when'tl^je a 
 he cannot be compelled to execute the conveyance (?) : but P^^'*^'- 
 the Court of Bankruptcy was by the Act of 1840 em- 
 powered {m), upon the application of the assignees, or of 
 the purchaser, if the bankrupt did not try the validity of 
 the adjudication, or if there had been a verdict at Law 
 establishing its validity, to order the bankrupt to join in 
 the conveyance: and if he did not execute it within the 
 time directed by the order, then he, and all persons claiming 
 under him, were to be estopped from objecting to such con- 
 veyance ; and all estate, right, or title, which he had in the 
 property, was to be as effectually barred as if such convey- 
 ance had been actually executed by him (u). The order 
 would appear to have been of course if he did not dispute 
 the validity of the adjudication {o). It was doubtful whe- 
 ther a purchaser could, in ordinary cases, require the 
 assignees to procure such an order unless he could throw a 
 doubt upon the validity of the adJTidication : if he himself 
 applied for it, the costs would seem to have Ijcen in the 
 discretion of the Court {'p). 
 
 Tinder the Act of 1S69, the bankrupt is to execute all Under the 
 
 . . ^ ■ , .1 ^^ . Act of 1869. 
 
 such conveyances, deeds and instrumt-nts, and generally to 
 do all such acts and things in relation to his property, and 
 the distribution of the proceeds among his creditors, as may 
 reasonably be required by the trustee, or may be prescribed 
 by ndes of Court, or be directed by special order of the 
 Court upon the application of the trustee or any creditor {q). 
 
 As respects dower, in cases falling under the new law, Dowress 
 
 J- when to be a 
 
 Ck) Su"-. 575. 278 ; Ex farte Bradstod; 1 M. D. & "^^ 
 
 (0 Dav. Conv. 2, Tart I., p. 457. De CI. 118. 
 
 (m)See 12&13 Vict. c. lOG, s. 148, (o) Ex jutrte Brcuhtod; 1 Mon. D. 
 
 and 6 Geo. IV. c. 16, s. 78 ; and see & De G. 118. 
 
 Pvule 17 of the General Orders under (p) See note to 9 Jarm. Conv. by 
 
 the Act of 1861. S. 2G1. 
 
 (v) See E.C parte Jadson, 2 Dea. & (<■/) 32 & 33 Vict. c. 71, s. 19. 
 
 C. 458 ; Ex parfc Thomas, 2 Gl. & -L 
 
 Yor.. I. ^ ^
 
 514! PREPARATION OF CONVEYANCE. 
 
 Chap. XII. the conciirrenco of the wife is, of course, unnecessary ; the 
 ___^!_!J1__ conveyance by the husband alone Ijeing a sufficient bar. In 
 
 Assignment of fallino- under the old law, it has been held that the 
 
 teiTu, whether ^ 
 
 purchaser purchaser could not insist on the wife's concurrence if he 
 
 must rely on, . n t t , r a i 
 
 as a bar. could obtaui an assignment ol a legal term tor years created 
 
 previously to the right of dower attaching upon the estate, 
 and of sufficient duration (r) ; inasmuch as, if the wife pro- 
 ceeded for her dower at Law, she could recover it only with 
 a cesset executio during the term, and Equity would not 
 remove the bar. This, however, does not seem to be a satis- 
 factory reason for the doctrine ; as not only was the pur- 
 chaser obliged to incur the expense of keeping the term on 
 foot, but he would have had to pay at least his own costs at 
 Law in the event of the dowress availing herself of her 
 legal remedy (n) : and it would appear that a purchaser can 
 at any rate require the vendor to ascertain, if practicable, 
 whether or no a hability to dower exists ; and is not bound 
 to be satisfied with a reply that if such liabiHty exist he 
 may protect himself Ijy means of a term (t). It was decided 
 by V.-C. K. Bruce, that an old term for years which upon a 
 purchase prior to the 1st January, 18-16, (when the 8 & 9 
 Vict. c. 112 {u) came into operation,) was duly assigned to a 
 trustee for the purchaser, is a sufficient protection to a sub- 
 purchaser, purchasing on or after the 1st Januar}^, 184G, 
 against the dower of the wife of the original vendor (x): but 
 such a term, it is conceived, would be no protection to the 
 sub-purchaser against any claim to dower by the wife of 
 such first purchaser ; supposing him to have been seised in 
 fee on the 1st January, 1846. Where a legal jointure under 
 the 27 Hen. VITI. c. 10 is rehed on in bar of dower, the 
 vendor must produce a satisfactory title to the jointure 
 land (//) : I'ut where the purchaser has agreed to rely upon 
 
 (r) Sug. 623; Mole v. Smith, Jac. (») Ptenderhig the assignment of 
 
 490 ; 3raundreU V. 3Iait,idrell, 7 Ves. satisfied terms unnecessarj\ 
 
 r)G7' 10 Ves. 24G. (■'') -S«ss v. WeUstcacl, 12 Jur. 
 
 (s) See Mr. Jarman's note, 1 Jarm. 347. 
 
 Conv. by S. 508. (.'/) i^ee, however, Raddiffc v. War- 
 
 (t) Major V. WarJ, 12 ■^\\r. 473, r!ii:/lon, 12 Yes. B2G. 
 Y.-C. W.
 
 PREPARATION OF CONVEYANCE. 515 
 
 the equitable bar created by an equitable jointure, it need Cha.ix xil. 
 
 only be shown that the husband or other contracting party '~ 
 
 has performed that which the intended wii'a (being an adult) 
 agreed to accept in lieu of dower (e). 
 
 The liability to dower lias been held a fit su1)ject for com- As to concur- 
 pensation, where a wife, entitled to dower, refused to concur tmstec. '^"^^'^^ 
 in her husband's conveyance, and the purchaser was willing 
 to take the estate (a) : Ijut a purchaser, it is conceived, 
 would not be compelled to accept compensation ; the claim 
 of the widow being not to a mere money payment, but 
 extending, if she so elects, to the actual possession of so 
 much of the land as may be set out in satisfaction of her 
 dower. Her claim, too, it must be remembered, in the case 
 of sales by her husband without her concurrence, is a sepa- 
 rate claim against each distinct purchaser, and extends to 
 buildings or other improvements : and in the case of house 
 property, the widow of a copyholder has, by special custom, 
 been held entitled as against a pui'chaser to a separate third 
 of each tenement (/>). 
 
 When the property stands limited to the common uses to Dower may lie 
 bar dower in favour of the vendor, he should either exercise compuusation. 
 his power of appointment, or the dower trustee should con- 
 cur in the conveyance. The omission to procure his con- 
 currence (the appointment being omitted for the sake of 
 conciseness) is, however, not very infrequent in practice, 
 and sometimes gives rise to a vexatious requisition on the 
 part of a sul>purchaser, to get in the outstanding fraction 
 of a legal estate. Where the limitations to bar dower are 
 preceded by the usual power of appointment, the operative 
 
 (:) See Di/le v. IlcndaU, 2 De G. (b) Due v. GidnncU, 1 Ad. & Ell. N. 
 
 M. & G. 209. S. 682 ; see Thompson v. Burra,la. K. 
 
 (rt) Wilson V. Williams, 3 Jur. N. S. 16 E(i. 5'J-2. By the 23 & 24 Vict. o. 
 
 810 ; but see and compare Bainhridye 12(3, sect. 26, ordinary writs of sum- 
 
 V. Kinnaird, 32 Beav. 346, where the mons from the Court of Common 
 
 property formed part of a large estate Pleas are substituted for \\'rits of right 
 
 subject to a charge for portions, and of dower and writs of dower «/ic?c « (7/ (7 
 
 the purchaser claiming specific per- hahet: but the more convenient remedy 
 
 formance was held to be not entitled is in Equity, 
 either to indemnity or conipensatiou.
 
 516 
 
 PREPAEATION OF CONVEYANCE. 
 
 Chap. XIT. 
 Sect. 2. 
 
 words "grant and convey" ^vonld prohaljly l)e held to Ije a 
 sufficient exercise of the power ; and in one case, where 
 there was no prior power of appointment, and the purchaser 
 insisted on the dower trustee joining in the conveyance, the 
 Court held that the objection, though frivolous, was well 
 founded, but gave no costs to either party ; and on appeal 
 this decision was affirmed (c). 
 
 Wife of ^Yg ^^-^^y YQi^^2iv]<i that the leo-al rio-ht of the wife of a 
 
 trustee or ■' o o 
 
 mortgagee not trustee or mortgagee in fee to dower, as its attempted en- 
 
 reqnired to i i i • i • t-i • / 7\ • 
 
 concur. lorcemcnt would Ije at once restrauied m hijuity («), is 
 
 never made a ground for her concurring in the conveyance, 
 and there can be no doubt that such a requisition would not 
 1)6 countenanced by the Court. 
 
 Dower Act— 
 — what it 
 extends to. 
 
 We may also remark that the Dower Act extends to 
 gavelkind lands (e) ; but not to copyholds, or customary 
 freeholds (/) ; so that on a sale of copyholds, or customary 
 freeholds, held of a manor in which the custom is that the 
 widow shall claim her freebench of all lands of Avhich her 
 husband was seised during the coverture, the wife must 
 conciu'. Even where such a custom exists, it is conceived 
 that the wife's inchoate or potential claim is destroyed hy 
 an enfranchisement by the husband, even although effected 
 ^vithout her concurrence ; but in such a case the safer prac- 
 tice is to require her concurrence. 
 
 As to the 
 hiisband's 
 concurrence 
 iu case.s of 
 separate 
 estate ; 
 
 Where a married woman concurs in respect of her separate 
 estate, or as donee of a power exerciseable by her as if she 
 were a feme sole, or for the purpose of giving her separate 
 consent to the exercise of a power, it is usual to name her 
 as a party apart from her husband ; and in all such cases his 
 concurrence may be safely dispensed with ; although, in the 
 
 (r) Collard v. Roe, 4 De C. & .To. 
 
 (d) Noel V. Jeron, Freem. C. C. 4.3 ; 
 Hinton V. iriuton, 2 Ves. S. 634 ; 
 IJoiid V. Llmi,l, 4 T)ru. & W. 3.54, 
 
 (() Farley v. Bonham, 2 J. & H. 
 177. 
 
 (/) Poiodrell v, Jones, 2 Sm. & G. 
 407 ; 3 Eq. E. 63 : Smith v. Adamfi, 
 18 Beav. 499 ; 5 De G. M. & G. 712.
 
 PllEPAKATION OF CONVEYAXLi:. "'17 
 
 case of mere .sepaicitu estate, liis euncuireiice is desiiaMe, in chap. xil. 
 
 . ,1 -111- '"'ect, 2. 
 
 order that no question may afterwards be raised by luni as 
 
 to wlietlier his nfarital rights liave been eftectnally ex- 
 ckided. 
 
 8o now, under sect. G of the 37 & 38 Yict. c. 7<s, wliere a "^j^^'j^'^ J^J^ 
 married woman conveys or surrenders any freehold or copy- trustee, 
 hold hereditament which is vested in her as a bare trustee, 
 the concurrence of her husband may be dispensed with. 
 The Act does not define what is meant by " a Ijare trustee " 
 in this and the preceding section ; and the term is generally 
 considered to be ambiguous : but it will probably be held to 
 mean a trustee, to wdiose office no duties were originally 
 attached, or who, althougli such duties were originally 
 attached to his office, would, on the requisition of his cest v. h 
 que trust, be compellable in Equity to convey the estate to 
 them or by their direction, and has been requested by them 
 so to conve}' it. 
 
 The arrangement of the parties is not a matter of any Anan^cincnt 
 
 ° . . of i>iirtie.s. 
 
 essential importance; but it is usual and convenient to 
 arrange them in the order in which they arc to act in the 
 operative part of the conveyance. 
 
 It used to be a common practice to insert in the descrip- Dusciiptiuu of 
 
 ... jiarties. 
 
 tion of the parties a short statement ol the capacities in 
 which they concur in the deed ; but this is seldom desirable, 
 and has fallen into disuse. It may however still be desirable 
 to resort to it, where the same person concurs in different 
 capacities; unless the nature of his several ftiterests is 
 sufficiently disclosed in other parts of the deed {(j). Of 
 course, where a deed is to be executed under a power of 
 attorney, the principal, and not the attorney, is named as a 
 party. 
 
 Where trustees purchase copyholds held of a manor, in xV<.liuittaiiee of 
 
 (ij) See Faussett v. Carpenter, 2 see Carter x. Carter, 3 K. & Jo. 634. 
 Dow. & CI. 232 ; Sug. H. L. 76; and
 
 ;i8 
 
 PREPARATION OF CONVEYANCE 
 
 Chap. XII. wliicli the tines are avLitraiy, it is not uncommon to let 
 only one trustee be admitted, so as to save the increased 
 
 Sect. 2 
 
 one trustee on fine which would be payable upon *a joint admittance. 
 
 pnrchase of i i n • n 
 
 copyholds. Trustees, however, can scarcely be advised to consent to 
 this, except under a sufficient indenniity or the order of the 
 Court, as in the event of the early death of the admitted 
 trustee, the result may be a loss, instead of a gain to the 
 trust estate. 
 
 (3.) As to the recitals. 
 
 bcction o. ^ difference exists among conveyancers as to the Icgiti- 
 
 citals. ^ ^^' mf'-te use of recitals : some practitioners employing such 
 Recitals to be only as wiU give an insight into the interests and objects of 
 what object, the parties to the deed, sufficient to render the subsequent 
 parts clear and intelligible ; while others introduce matter 
 which, although clearly irrelevant, e.g., the recital of the 
 probate of a will of real estate, or of the places of burials, 
 marriages, and baptisms, &c., is yet calculated to save 
 trouble upon future investigations of the title. It is 
 submitted, that, as a general rule, subject of course to 
 special exceptions, no recital should be admitted which 
 has not a logical connection with some operative part 
 of the draft, and that the purpose of the other class of 
 recitals may be well answered by a memorandum indorsed 
 on the deed, and signed by the parties conversant with 
 the facts (A). 
 
 Whether de- 
 sirable in dis- 
 entailing as- 
 surances. 
 
 So, in disentailing deeds, the statutory effect of which is 
 independent, not only of the motives, but even of the ex- 
 pressed intention of the parties (i), recitals seem to be in 
 general useless, and therefore inexpedient; especially since 
 the enrolment of these conveyances in a public office is 
 open to all the objections, and is attended by few of the 
 
 (/() As to the use of recitals, see 
 Dav. Conv. Vol. I., p. 41, ei scq. 
 
 (/) See 3 & 4 Will. IV. c. 74, s. 21.
 
 PRErARATION OF CONVEYANCE. 519 
 
 bcnctits, "incident to I'cgistration of titles under the pro- Cbaix XII. 
 tectivc Statutes. A simple conve3^ance by A. of a specified !_1 
 
 estate, or of all the lands held by him as tenant in tail 
 under a specified settlement or in a specified locality, and 
 the mere consent of B. as protector, either generally or under 
 the limitations of any specified instrument, are quite as 
 eftective, and, usually, as intelligible, as they would be if 
 preceded by the most elaborate statement of the previous 
 title, or of the motives which induce the parties to do that 
 which, when done, takes effect without any regard to 
 motive. 
 
 Nevertheless, in particular cases, it may frequently, with .Sometimes de- 
 a view to the present practice, in framing conditions of sale, '^reating'^vi. 
 of making recitals evidence (/.), be expedient to introduce "^^"^^^^jj'J^-^'P" 
 into conveyances, statements of facts which may tend to 
 validate the title, although they may be inconsistent with 
 the strict logical unity of the draft. 
 
 A o-rantor, who is not an absolute owner, may and should, Should show 
 
 ° 1 • 1 -n ■vendors right 
 
 as a general rule, require such matters to be recited as will to convey. 
 be suflicient to show that he is justified in making the 
 assurance. 
 
 As a release of claims, however generally expressed, is Eecitals in a 
 
 release of 
 
 confined by a rule of E(|uity to matters ot which the re- claims, 
 leaser is cognizant, it is very important, in a deed of this 
 description, that the origin of the several claims, and all the 
 circumstances connected with them, should be clearly stated 
 in the recitals (/). Where the conveyance or release of an 
 estate is part of a general arrangement, the recitals should 
 show that those acts or assurances which are to form the 
 consideration for such conveyance or release, have been 
 already done or perfected : and should not, as often happens, 
 merely state an intention to do or perfect them. Such a 
 
 (/.:) As to recitals, &c. being evidence, (/) This applies also to deeds of 
 
 see now 37 & 38 Vict. c. 78, sect. 2. indemnity.
 
 520 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. I'C'cital suggests an in(|uiiy whether such intention was 
 Sect. 3. carried out, and a demand for evidence of such being the 
 
 fact. 
 
 liecitals— The recitals, if considered with reference to the interests 
 
 mence. ° ^' "^ ^f the purchaser, should, as a general I'ule, go back sufficiently 
 far to show a clear root of title ; and be thence continued, 
 in regular order, down to the date of the conveyance. 
 Occasionally, a strict adherence to this rule would bring 
 upon the face of the conveyance, matters which are better 
 excluded : and not unfrequently, in small transactions, the 
 mere number of the documents to be i-ecited may, on the 
 groiuid of expense, justify a departure from the more 
 regular course. In either case the draftsman may often 
 meet the difficulty, either by a recital stating what he 
 conceives to be the effect of the documents, viz., the actual 
 existing relative rights and interests of the conveying 
 parties in the property ; or even in some cases by a mere 
 recital of the contract for sale. Special recitals of this 
 description should, however, be employed with caution by 
 inexperienced draftsmen ; and, when they are employed, 
 extraordinary care will often be required in framing the 
 covenants for title. Generally there is less reason for reci- 
 ting, fully or at all, documents which will be handed over 
 to the purchaser on completion, than those which will be re- 
 tained by the ^-endors. Sometimes it may, with regard to the 
 present practice of conveyancing and the ordinary conditions 
 of sale throwing upon purchasers the expense of attested 
 copies and making recitals evidence, be desirable to go back 
 in the recitals even beyond the last instrument which 
 constitutes a good root of title : for instance, on the pur- 
 chase, with a view to a subdivision and resale (say for 
 building purposes) of land, part of a large family estate, it 
 may, when the title is voluminous, and also fix'c from oil 
 doubt, Ijc desiralile to go back in the recitals sufficiently far 
 to show such a title as would probably in point of duration 
 satisfy sub-purchasers. 
 
 Anaugement The chronological arrangement is genei'ally the best : but 
 
 of recitals.
 
 PREPARATION OF CONVEYANCE. 521 
 
 when separate estates or interests are to 1)C dealt witli, the Chap. xii. 
 
 . 1 X n 1 Sect. 3. 
 
 ch-aftsnian may often advantageously group togetlier sucli 
 
 recitals as relate exclusively to any particular estate or 
 interest. 
 
 In reciting a power, no more need be set out than is Moae.ific- 
 sufficient to show that it authorizes what is proposed to be " "^'^ pt>wcis. 
 accomplished : for instance, on a sale under the usual power 
 of sale and exchange, it is unnecessary to recite any expres- 
 sions relating exclusively to exchanges ; or, if there be a 
 sufficient power for the trustees to give receipts, to recite the 
 trusts of the purchase-money : so, if the power runs in the 
 usual form, and the sale is by all the orlyinal trustees, there 
 is obviously no purpose answered by showing that it extended 
 to " the survivors and survivor of them and the heirs of such 
 survivor ; " if, on the other hand, there has been a change in 
 the trustees, it will be necessary to show that the will or 
 settlement authorized such change, and contained expressions 
 sufficient to enable the new trustees to exercise the same 
 powers as their predecessors in the trust. Of course, so nuich 
 of the instrument creating the power nuist be set out as may, 
 with the aid of subsequent recitals, be sufficient to show that 
 the power has become cxcrciscable and that all necessary 
 consents (if any) have been given : and parties whose consent 
 is requisite, should, if possible, express such consent on the 
 face of the assui'ance. 
 
 But when upon a sale under a power any parties who \V( )i ild i ,iniiiatious in 
 
 . . -1 , ilcfaiilt of ex- 
 
 be interested in the property in case tlic power wer(« nut erdse of power 
 exercised, agree to concur in the con\-eyance, the recitals, in j^f ^^^^^^^l^^l 
 addition to the power, should also show the nature of the 
 interests which, subject to its exercise, are vested in such 
 concurring parties. 
 
 It must always be remeinl)ercd liy the drattsman that Kcdtals arc 
 
 •^ T ■ L L • J.^ matters of con- 
 
 recitals, although generally highly expedient, are not strictly venience, not 
 
 essential to the operation of an assurance ; every case resolves 
 
 of necessity.
 
 522 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. itself into a question of present or future convenience. Even 
 ' in the case of a release of a doubtful right, although it is in 
 
 the very highest degree expedient to show upon the face of 
 the assurance that the party executing it did so with a full 
 knowledge of facts, and of the c^uestions arising upon them, 
 it would be sufficient, in order to sustain the instrument, 
 to show cdiunde that such knowledge was actually possessed 
 by the releasing party. 
 
 on o ''erative Rccitals, although thcy may explain douljtful expressions, 
 
 part of deed, -^yill not cut down the plain effect of (ni), nor ordinarily supply 
 a total omission in (n), the operative part of a deed : but, in 
 a late case, where a married woman was made a party to, 
 and executed and acknowledged, a conveyance by her 
 husband, and the recitals showed that she concurred in 
 order to bar her dower, but her name was omitted in the 
 operative part of the deed, and in the covenants for title, 
 it was nevertheless held, even as between vendor and pur- 
 chaser, that her dower was barred (o). And, as a general 
 rule, where there is a discrepancy between the recitals and 
 the operative part, the former being clear as to what is 
 intended to be conveyed, and the latter containing wide 
 sweeping words of conveyance, the operation of the latter 
 will bo restricted (-p). Thus, where a settlement recited 
 that by virtue of divers assurances, certain speciUcd pro- 
 perties, " and all other the freehold hereditaments in the 
 county of York thereinafter expressed to be appointed and 
 released," were limited as the settlor should appoint, and 
 then to him in fee, and the settlor appointed and released 
 the specified properties, and all other his freehold heredita- 
 
 (rti) Ilollidioj V. Overton, 14 Beav. Jur. N. S. 963 ; Cliilders v. Edrdley, 
 
 467 ; and see cases cited. 28 Beav. 648 ; WiUourjhhy v. Middle- 
 
 (n) Hammond v. Hammond, 19 ton, 2 J. & H. 344 ; and see also 
 
 Beav. 29. Monypenny v. Monijpcnny, 9 H. L. 
 
 (o) Dent v. Clayton, 10 Jur. N. S. Ca. 114 ; 3 De G. & Jo. 572 ; 4 K & 
 
 G71. J. 174 ; Barratt v. Wyatt, 30 Beav. 
 
 {p) Roolce v. Lord Kensbvjton, 2 K. 442 ; but see as to covenant being 
 
 & Jo. 753 ; Re Hufjli NcaVs Trusts, 4 controlled by a recital or vice versa, 
 
 Jur. N. S. 6 ; Hoplinson v. Lush, 10 Maclurcan v. Lane, 10 Jur. N. S. 56, 
 
 Jur. N. S. 288 ; Young v. Smith, 11 59, ct quwre.
 
 PREPAKATION OF CONVEYANXE. ')'2o 
 
 iiicnts in the county of York, it was held that an estate in Chap. XII. 
 
 that county of which the vendor was seised in fee, but not .' 
 
 under the specified instruments, did not pass (q). 
 
 So, in tlic converse case, the generality of the recitals may May l)e 
 be restricted by the form of the operative part of the deed, operative 
 Thus, where in a marriage settlement, there was a recital of i'^^'^ "^ ^^^''^'^• 
 an agreement to settle the wife's after-acquired property, 
 followed by a covenant which was binding on the husband 
 alone, it was held that the operation of the covenant was 
 not extended Ijy the general form of the recital (/'). 
 
 In one case, a question was raised and not decided, whe- Of vendor's 
 ther, when a purchase deed contained a recital of the pOTchaser 
 vendor's title, the purchaser upon being evicted was not ^J^^i^U'''^ 
 estopped from questioning the accuracy of such recital in an 
 action on the covenants for title (s) : the question appears, 
 however, to have been decided in the negative in a later 
 case (f), where the Court held that where a recital is in- 
 tended to l)e the statement of one party only, the estoppel 
 is confined to that party; and the intention is to be gathered 
 from construing the instrument (u) : and this seems to be 
 the reasonable doctrine. 
 
 A recital that the purchase-money has been paid, is, at Kctital of pay- 
 Law, equivalent to a release for the amount (x). 
 
 Where the purchase deed contains a recital that the 
 vendor is seised or othcnuise well entitled in fee free IVom 
 
 (q) Joiner V. Joiner, L. R. 1 Eq. see Wiles v, Woodirard, 5 I'^xcli. 557. 
 
 3G1. And see also as to estoppel by rcci- 
 
 (r) Younfj v. Smith, L. 11. 1 Ecj. tals, Saunders v. Mcrcvxthcr, 11 Jiir. 
 
 180 ; and see liamsden v. Smith, 2 N. S. Q5t) ; Morton \. Woods, L. R, o 
 
 Drew. 298. Q- B. 658. 
 
 (s) Yoinig v. Raiucock, 7 C. B. 310. (u) See Ililh v. Laminrj, 9 Excli. 
 
 («) StromjhiU \. Bucl; 14 Q. B. 25G ; Sainukrs v. Mercvxthcr, uU 
 
 781. But the recital will bind the snprd. 
 
 vendor and parties claiming under ^x) Favxvsw Porter, 3 Car. & K. 
 
 him ; Doe v. Stone, 3 C. B. 176 ; and 309. 
 
 uicnt.
 
 524. 
 
 PIIEPAKATIOX OF COXVEYAN-CE. 
 
 Chap. XII. incTimbrances, and at the date of conveyance lie has only 
 
 Sect. 3. . . 
 — an equitable interest, but sul)se(|uently acquires the legal 
 
 estate, it "Nvould seem that the recital, as it is not inconsistent 
 
 with the fact, creates no estoppel so as to pass the legal 
 
 estate to the purchaser (//). 
 
 Written agree- 
 ment, when to 
 be reeited. 
 
 Where a deed is executed pursuant to a written agree- 
 ment, it is generally inexpedient to recite that agreement, 
 and so bring it upon the title, unless it be material to the 
 full opei'ation or validity of the deed ; as in the case of a 
 post-nuptial settlement, where it is generally proper to 
 recite prior articles, in order to show that the settlement is 
 not voluntary. So, where either party to a contract dies 
 before its comj)letion, the contract itself, as a general rule, 
 becomes part of the title, and should be recited in the con- 
 veyance. The recital, very commonly introduced, of the 
 sale having been by auction under certain printed pai- 
 ticulars and conditions, inasmuch as it may lead to future 
 incjuiry respecting the nature of these particulars and con- 
 ditions, is generally worse than useless, save in those cases 
 which, except on sales by the Court of Chancery, are very 
 I'are, where the recitals show that such a mode of sale was 
 the only proper one. 
 
 Iveeitals of 
 objections in 
 ileed of con- 
 tinuation. 
 
 Where a person executes a deed for the purpose of 
 removing objections to the title, and the deed merely men- 
 tions their existence, without specifying them or showing 
 that objections have been withheld from him, and he asks 
 no questions, he will, as between himself and the purchaser, 
 be bound, although in fact unaware of their real nature (0) : 
 and it is presumed, that a person executing such a general 
 confirmation, even although in fact deceived as to the real 
 nature of the objections, would be Ijound, if the purchaser 
 
 (y) Heath v. Crealocl; L. K. 10 Ch. 
 Ap. 22, 30, affirming V. C. B., L. E. 
 
 18 Eq, 215. 
 
 (z) Ves. 431. A mere voluntary 
 
 confirmation of a prior fraudulent sale, 
 the confirming party being still under 
 pressure, cannot be relied on ; see 
 Addis V. Campbell, i Beav. 401.
 
 PRKPARATION OF CONVEYANCE. 525 
 
 liad ]io notice of the deception. A general confirmation Chap. XII. 
 
 would appear to be the most e]ioil)l(> for the pni-cliascr ; liut ^^ ' ' 
 
 the party confirming should ordinarily insist on the par- 
 ticular objections lieing specified, and in terms confine his 
 confirmation to their removal. 
 
 (4.) ^4.s io ilic eonf<hl('i'(ifion — ivorJx of conveyance — Section 4. 
 
 aixl /Ml/rcel^. As to the con- 
 
 sideration — 
 words of con- 
 
 Care must be taken in pi-eparing the deed to state truly '^eyance— and 
 
 i- i- o -J parcels. 
 
 the consideration paid by the purchaser, and upon which ad Consideration 
 vdlorern duty will liave to l>e paid ; as the omission to do ^T^^'^gj'^ *'"^^ 
 so, although it will not affect the sufficiency of the stamp, 
 or the validity of the deed {a), will expose the parties who 
 prepare the deed to severe penalties, and the vendor to an 
 action by tlie 2:)urchaser for the return of the luiexpressed 
 consideration (/>). Where fixtures, standing timber, or any Duty payable 
 other parts of the inheritance are taken at a valuation, its "^jjijer^^c 
 amount must be included in the consideration ; but move- Chatttla 
 able chattels which pass by delivery may lie handed over, fi^en-^ ^"^ "' 
 and receipts may be given for them and for their price ; if, 
 liowever, they be for any reason assigned by deed, the ad 
 V(dorem duty attaches, and their price must be stated ; and 
 it would appear that the recital in a deed of such sale and r.ecital of sale 
 
 . . . —its effect, 
 
 delivery (which has been very frequent in practice) renders 
 the duty payable, unless the articles are of such a kind as 
 would come under the description of goods, wares, or mer- 
 chandise (c). 
 
 (a) Tilsley on Stamps, 1st edit. sion from leases of the considei-ation 
 
 2."iO. paid l)y the lessee to the party who 
 
 {h) See 48 Geo. III. c. 149, ss. 22 held the original agreement for the 
 
 to 20; 55 Geo. III. c. 184, s8; Giv- lease; see ^l^.-Ce^. v. Brown, 3 Exch. 
 
 fiel V. Furkimt, 4 Exch, 720 ; and see tiG2 ; and 33 & 34 Vict. c. 4.5. The 
 
 now 33 & 34 Vict. c. 97, sect. 10. See ])rovision as to penalties does not 
 
 also 13&14Vict. 0. 97, s. 10, remittinL;' apply to a partition deed: Jfcmnlrr 
 
 penalties incurred prior to the 20th v, Ilcnnilcr, 1 El. & 15. 4. 
 March, 1850, in respect to the omis- (c) IlorsfaU v. Ifc;/, 2 Exch. 778,
 
 52G 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 Sect. 4. 
 
 On sale of 
 projjerty sul) 
 ject to a 
 mort.oaue. 
 
 Apportion- 
 ment of con- 
 sideration, on 
 purchase of 
 copyholds and 
 other pro- 
 perty. 
 
 What duty 
 payable on 
 conveyance 
 direct to sub- 
 purchaser. 
 
 Where the consideration consists wholly or in part of a 
 debt due to the purchaser, or where the property is conveyed 
 subject to the payment or transfer of any money or stock, 
 whether charged on the property or not, such debt, mone}', 
 or stock is subject to duty, and its existence must therefore 
 appear upon the face of the deed ((/). 
 
 Where freeholds or leaseholds are purchased together 
 with copyholds, or customary freeholds, at an entire price, 
 and the copyholds, or customary freeholds, have to be assured 
 by surrender, it is necessary, for the purposes of the Stamp 
 Act (e), to apportion the price between them and the other 
 property (/); and this may be done so as to reduce the 
 duty to a minimum, without any regard to the actual rela- 
 tive values of the estates : so, where estates are purchased 
 by two or more at an entire sum, and the purchasers take 
 separate conveyances, or where estates of different tenures 
 or held under different titles are purchased at an entire 
 sum, but are conveyed to the purchaser separately by sepa- 
 rate insti'uments, the purchase-money may, for the purpose 
 of diminishing the duty, be apportioned on the face of the 
 conveyances in such mamier as the parties think fit {(j), 
 without regard to the actual value of the estates, or (in the 
 case of there being several purchasers) to the pecuniary 
 arrangements between the parties ; but under the new scale 
 of duties, a merely insignificant saving can 1 >e thus effected. 
 
 Where, after the contract Ijut before conveyance, the 
 property is sold and conveyed direct to a sub-purchaser, ad 
 valorem duty is payable on the amount of his pm-chase- 
 money (Ji) ; and this, it would seem, whether it be less or 
 more than the original purchase-money. 
 
 (c) Inasmuch as the duty upon the 
 copyholds is charged on the smTender ; 
 and see 33 & 34 Vict. c. 97, s. 77; and 
 sect. 84, et seq. 
 
 (/) 55 Geo. III. c. 184, Sched., title 
 " Conveyance. " 
 
 dj) 33 & 34 Vict. c. 97 sect. 74 ; an.l 
 see C'larJc v. May, 16 Beav, 273. 
 
 {h) 33 & 34 Vict. c. 97, sect. 74 ; 
 subsect. 3, 4. .'i. 
 
 (d) 33 & 34 Vict. c. 79, sect. 73 ; 
 and see 16 & 17 Vict. c. 59, s. 10 ; it 
 had been held (see the jjreamble) that, 
 under the General Stamp Act, duty 
 was payable in respect of any such 
 sum or debt only where the purchaser 
 was personally liable, or bound, or 
 luidertook, or agreed to pay the same, 
 or to indemnify the vendor against 
 the same.
 
 PREPARATIOX OF CONVEYANCE. 527 
 
 If a retiring partner conveys liis share of tlic partnership Chap. xil. 
 estate to liis partner, in consideration of the payment of a ec . . 
 
 definite sum of money, or of an indemnity au'ainst an ascer- ^"- ^°^^'^y- 
 
 ^ ' ^ o ance by a re- 
 
 tained amount of partnership liabilities, ad valorem duty tiring to a 
 
 • n 1 1 1 /-N 1 • o ^ ^ • t • t i Continuing 
 
 Will be payal)le [i); but it the partnersliip assets are divided partner. 
 between the partners, then the transaction is in the nature 
 of a partition, and the ordinary deed-stamp will be suffi- 
 cient : except as respects any sum which may be paid hy 
 one partner to anothei-, in order to equalise the shares. 
 
 We may here remark, that goodwill is property within ^" sale of 
 the meaning of the Stamp Laws, and is liable to ad valorem 
 iluty on conveyance (/.■). Whether a release, as distinguished 
 from an assignment by an outgoing to a continuing partner 
 of liis interest in goodwill is chargeable Avith the duty, has 
 been considered questionable (/) ; but, under the late Stamp 
 Act, it seems clear that it would be treated as a deed by 
 wliich property is vested in, if not transferred to, the con- 
 tinuing partner, and as such liable to duty (v/c). 
 
 Where the consideration for a conveyance on sale consists Sale in con- 
 wholly or in part of any stock or marketable security, tlie transfcr'of" 
 conveyance is to be charged with ad valorem Awiy \n 
 respect of the value of such stock or security ; wliere it 
 consists wholly or in part of a security which is not market- 
 able, the duty is chargeable on the amount then due for 
 principal and interest on the security (/?). And the Act 
 provides how the duty is to be charged where the con- 
 sideration consists of periodical payments either for a definite 
 period or in perpetuit}^ or for an indefinite period not 
 terminable with life, or for life (o). 
 
 (/) See sect. 78 of 33 & 34 Vict. c. ^ c. 281. 
 97, which extends the liability to ad (/) Day. Conv. vol. ii. 51G. 
 
 ral. duty to every deed transferring (,„) yicle note {i) suprd. 
 
 projierty, except a conveyance or (n) 33 & 34 Vict. c. 97, sect. 71 ; 
 
 transfer on the appointment of a new and compare the Schedule to 13 & 14 
 
 trustee. See too, sect. 70 as to what is Vict. c. 97. 
 a " Conveyance on sale." („) See sect. 72 ; and see further 
 
 (l-) Att.-Gen. v. Potter, 33 L. T. to stamps ivfrd, Ch, XIII., sect. 9. 
 2G9, f)\erruling Warren v. IIokp, 2 13. 
 
 stock
 
 528 rrtEPARATTON OF CONVEYANCK. 
 
 Chap. XII. In the case of a conveyance under the Lands Clauses Con- 
 Sect. 4. . . 
 
 solidation Act, or any Act of Parliament containing similar 
 
 money oifJale pi'ovisjons, carc sliould, of course, be ordinarily taken, that 
 
 to railway ^]^y ^^^j^^ expressed to be paid as the consideration for the 
 company, _ ^ _ 
 
 purchase of land, does not include money paid merely by 
 
 way of compensation for damage to adjacent property ; as 
 
 the latter amount is not subject to duty. 
 
 Operative Exccpt in the casc of a feoffment fa mode of conveyance 
 
 words used ^ \ ./ 
 
 only in present now almost obsolete), it has become unusual to insert the 
 operative words of conveyance in the past as well as in the 
 present tense. 
 
 Feoffments iiy A feoffment was foi'merly a connnon form of assurance on 
 
 a rorpoiatiiin. . . 
 
 sales l)y corporations, in consequence of the doubt Avhether 
 
 such bodies, from their incapacity of being seised to uses, 
 could convey by lease and release, except in cases where the 
 lease was a common law demise, perfected by actual entry : 
 there can, however, be no question as to their competency to 
 convey by grant under the 8 &: 1) Vict. c. 106. Feoffments 
 are now rarely used in this country, except in the con- 
 veyance, for valuable consideration, of an infant's land 
 under the custom of gavelkind (p). 
 
 Form.s of con- Jn Australia, and in some other of the Australasian 
 
 vej'ance used . ... 
 
 in the cole- colonies, freehold lands in possession are, it is understood, 
 generally conveyed by feoffment, or by grant. Except in 
 Calcutta, and those localities where land has been acquired 
 and subsequently sold by the Indian Government, there 
 does not appear to be any real estate in India which can be 
 considered as held in fee simple ; the ordinary English con- 
 veyances are, however, generally adopted in transactions 
 l)etween Europeans. By the 31st of the Acts of the Legis- 
 lative Council of India for the year 1854 (but which only 
 applies to cases governed by the English Law), it is enacted 
 that any estate or interest in immovable property situate in 
 
 (p) As to this custom, and the re- see Dav. Conv. vol. ii. 221; also Elton 
 stricti(nis on this nioile of alienation, on the Kentish Teiun-es,
 
 PREPARATION OF CONVEYANCE. 52(» 
 
 tile tenitories in the possession, or under the control, of the Chap. XII. 
 East .India Company, whether in possession, reinainder, or ^!! U 
 
 reversion, may, in addition to any othei* mode of conveyance 
 or release then valid, he conveyed, passed, or released hy a 
 simple deed, whether snch deed operate under the Statute 
 of Uses or not. By the same enactment, words of limitation 
 in a deed are no longer requisite to pass an estate in fee 
 simple : and an estate limited to heirs is not to unite with 
 a prior life estate in the same deed ; nor is a ho ad fide 
 purchaser of property, the proceeds of which when sold are 
 suhject to a trust, in any case hound to see to the applica- 
 tion of the purchase-money {q). 
 
 Our Courts will apply the general law of this country 
 (being abstractedly just and not exclusively founded on any 
 particular or technical rule) to (piestions relating to land in 
 a colony where a different system of jurisprudence prevails ; 
 unless it is shown or suggested that the laws of the colony 
 are difterent on the point in question (/). 
 
 Many practitioners when settling a conveyance on behalf As to exprca 
 of mortgagees or trustees are astute in introducing, in con- t|°e^of"t°*ug'l" 
 nection with the words of conveyance by their own clients, tees, &c. 
 qualifying expressions such as " according to their estate 
 and interest if any," and " if and so far as they lawfully 
 can or may, but not further or otherwise," &c., which are of 
 little practical importance ; except that when they are intro- 
 duced the parties should enter into a clear and direct 
 covenant that they have done nothing to encumber or affect 
 the title to the property ; for a covenant merely that they 
 have done nothing to prevent their conveying " in manner 
 aforesaid," amounts, in fact, to nothing. Where, however, a 
 
 (q) See as to real property in India, p. 13(3 ; and Wuterliousc v. Stan afield, 
 
 Freeman v. Fairlie, 1 Moore's Iiid. 10 Ha. 254. 
 
 Ap. 30.') ; Gardiner v. Fell, 1 J. & W. (r) Bcntinch v. WiUhd; 2 Ha. 1. As 
 
 22. As to the forms of conveyance to the assurance of cnstomaryfreehold.H 
 
 in the North American Colonies and see the case of Oraliam v. Jarlson, 6 
 
 West India Islands, see Appendix to Q. B. 811 ; 14 L. J. N. S. 120 ; and 
 
 Burton's Compendium, and 2 Jarm. cases there cited. 
 Conv. by S. 398, et seq. ; ib, vol. vi., 
 
 VOL. I. M M
 
 530 
 
 ITiEPAKATION (JT CONVEYANCE. 
 
 Chap. XII. 
 Sect. 4. 
 
 party concurs niorely in some particular capacity or capaci- 
 ties, this should plainly appear on the face of the con- 
 veyance ; lest his other rights, if any, not heing reserved 
 should 1)0 deemed to pass (s). 
 
 Reference to T'^^^ reference to the iStatute which rendered a lease for 
 
 Act dispensing ^ ^,^,^^. nnuecessarv, although still of occasional occurrence, is 
 
 with lease for • ./ ' o 
 
 year unneces- rendered useless by the subse([uent enactment, that all cor- 
 poreal tenements and hereditaments shall, as regards the 
 conveyance of the immediate freehold thereof, be held to lie 
 in grant as well as in livery (t). 
 
 sary, 
 
 Parcels, how 
 to be de- 
 scribed. 
 
 Care requisite 
 iti the use of 
 plans. 
 
 In describing the parcels, a description by reference to a 
 schedule, or to a schedule and map, has become ver}- usual, 
 and is generally convenient (u). Care, however, should be 
 taken in using a plan to have either a substantive descrip- 
 tion of the property in the body of the deed or in the 
 schedule, so as to let the plan be merely in aid and explana- 
 tion of this description, or else to insure perfect accuracj" in 
 the plan itself This is particularly requisite in convey- 
 ances or leases of mines or other subterraneous strata, or 
 where land is cut up for building purposes, or is otherwise 
 conveyed by reference to imaginary lines of demarcation. 
 In such a case, a slight error in the drawing of the plan 
 ma}^ be attended with very serious consequences. For 
 Effect of error instance, where a piece of land was conveyed by the des- 
 cription of " a small piece marked in the plan as 1-53, b," 
 containing 34 perches, and the plan was drawn to a scale, 
 and 153, h, being a piece marked ofi' on the plan from a 
 close numbered 153, contained according to the scale only 
 27 perches, it was held that no more passed ; although there 
 
 (s) See an<l coiisiik'r Faussdt v. 
 Carpenter, 2 Dow. & Cla. -2.32 ; Sugd. 
 H. of L. 76 ; and see Carter v. Cai-ter, 
 .3 K. & Jo. G34. 
 
 («) 8 & 9 Vict. c. 106, s. 2. 
 
 (m) See, as to the effect of a Tariance 
 between a schedule to a conveyance 
 and an indorsed map, Llexcyllen v. 
 Earl of Jersey, 11 M. & W. 183; 
 
 and i'CA to the ^cliedule and map, re- 
 stricting the description in the body 
 of the deed, Barton v. Dau'cs, 19 L. J. 
 302, C. P.; and Walsh v. Trevanion, 
 15 Q. B. 733 ; Baher v. Richardson, 6 
 W. Pt. 663. See, too, the First Re- 
 port of the Late Registration Commis- 
 sioners, reconnnending maps as the 
 basis of a General Register.
 
 PllEPARATlOX OF C(JNVEYA^"CE. 531 
 
 was little doubt that the plan was incorrect, and that Chap. xil. 
 
 153, h — which was a valuable strip of frontage — was in- ' ^^ ' ' 
 
 tended by both parties to extend to a point corresponding 
 
 witli the extent of some adjoining l)ack land, and to Avhich 
 
 it would have extended had it in fact contained 34 perches 
 
 instead of 27 perches (.>•) ; the result being that part of the 
 
 back land, which was comprised in the sale, was left without 
 
 a frontage. The question of parcel or no parcel is a question 
 
 of fact for a jury to decide ; but it is the province of the 
 
 judge to explain to the jury how the map, as any other 
 
 portion of the deed, is to be construed (ij). 
 
 Upon the sale of lands adjoining an ancient highway, the Wliere the 
 ordinary rule is, that the road usque ad mcd'iuin Jilmn vice au'lmcient"'^ 
 passes by the conveyance ; and the fact of the parcels being '"-''^^-^y- 
 set forth by admeasurement, and being shewn on a plan 
 which does not comprise any portion of the road, does not 
 exclude the operation of the rule (?) : so, too, in the case of 
 land adjoining a non-navigable river or stream. 
 
 So, where the occujDancy of the proj^erty is referred to, Reference to 
 care should be taken to have a substantive and sufficient 
 independent description ; otherwise the effect of the deed 
 will depend upon evidence of the fact of occupancy ; 
 and notliing which cannot be strictly proved to have been 
 so occupied, will pass (a). Where, as is not unfrequently 
 the case, the reference to occupancy is in the following 
 form: " all that messuage, &c., (<« the same is now, or lately 
 was, in the occupation of A, B.," it might not unrcasonabiy 
 ije considered as intended to restrict the piuchaser s eniov- 
 
 .0 7Ul«> rjSllJ bf'Jll CjDp-jri'j 
 
 ..M-i\u 'iVjwi '>'// Jy) bv'iji •ill) ,'il 
 (x) LIcwj/flcn V. Lord J erst IJ, 11 M. Ciisu of disputed boimdaiies between 
 & W. 183; and see Barton v. Daives, grantees of conterminous mines. 
 10 C. B. 261 ; Hari-is' y! P'^\>p^'ell, ' \))yi^GQ &\\A toniiXer Lylc\\%cllaks, 
 L. R. 5Eq. 1. See,too, Z»«c;8v.,S/i(^- ll kl E'.'ct Tr. ■Ap."22i' • ' "' "'■ 
 herd,n It'. l'C'h.'^Ap."4tO,' ^\vhW^e'.the ' ' ('.) ^crf-W/ye v.' ifaK 'VVur:'^.''^. 
 si'ipi)Wl dtvdCtioii 6f''.t'/a\dt'\v^16h 876; 10 C. B. N. S. 400; aii^' See 
 was to be the boundary of a nliii'o Z/cndi/ x'.'Siiirp.ifih, 7'Jur.'N'.'i^. IfeS, 
 was'sh6\\''n lipnii a i^aii ; ^M''lj/fi y. («) Di/ne v. ^utleij, 14 C. B. 12§.'*^ 
 
 Richards, h. K. 1 E. & Ir. Ap. 222;''a ''• - •"' •"' "'^ '■'■'^' '^^ 
 
 M M 2
 
 532 PREPARATION OF CONVEYANCE. 
 
 Chap. XII, ineiit of the property, in the way in which it was enjoyed 
 ^^^' ' by A. B. It has, however, been held, that the purpose of 
 the reference, as thns framed, is merely to identifj- thc> 
 property, and not to restrict its beneficial enjojanent (&). 
 
 Error of de- g^^^, where the deed contains an adequate and sufficient 
 
 scription. . „ , . . 
 
 definition, with convenient certainty, of what is intended to 
 pass {c), any subsequent erroneous addition wiU not vitiate 
 it; according to the maxim falsa demoiist ratio non nocef. 
 For instance, under a conveyance by A. of all his meadow 
 Blackacre, described as containing 10 acres, but which in 
 truth contains 20 acres, the whole 20 acres will pass {d) : so, 
 under a conveyance by A. of all his farms X., Y. and Z., in 
 the parish of M., in the occupation of B., farm X. Avould 
 pass, although in fact occupied by C. : but if the premises 
 are described in the general terms, and then a particular 
 description is added, the latter, it has been usually con- 
 sidered, controls the former {e) : ?//., if the conveyance were 
 simply of all A.'s farms in the parish of M., in the occupation 
 of B., no farm would pass which was not in fact so occupied : 
 but this was decided differently upon a late case arising 
 under a will, and upon principles which apparently apply 
 as well to a deed (/). It is seldom, however, that such a 
 question could arise upon a purchase-deed. 
 
 In a later case, where the parcels were described as " all 
 that messuage with the lands, &c., situate, kc, and now, or 
 late in the occupation of R. B.," and then followed a par- 
 ticular, but not exhaustive, description of certain of the 
 closes of which R. B.'s farm consisted, the Court of Ex- 
 chequer held that only the closes expressly specified passed 
 by the deed (rj). We have already seen that wide sweeping 
 
 (/j) Martyr v. Laurence, 2 De G. (<) Doe v. Gallon-ay, 5 B. & Ail. 
 
 Jo. & S. 261, and cases there cited ; 51. 
 
 and see Polden v. Bastard, L. R. 1 Q. (/) Doe v. Carpenter, 16 Q. B. 181 ; 
 
 B. 156. and see Wood v. Rowrliffe, 6 Exch. 
 
 (c) Per Parke, B., 11 M. & W. 407. 
 
 189. ig) Griffiths v. Penson, 9 .Jur. N. S. 
 
 (d) See Shep. T. 2iS. 385.
 
 PREPARATION OF CONVEYANCE. 533 
 
 words of conveyance may be restricted by recitals, clearly Chap. XII. 
 
 1 //N Sect. 4. 
 
 shewing what is intended to be conveyed {ft). 
 
 The ci^ntract for purchase cannot, in general, be used in Coutract unt 
 
 ^ ° evidence. 
 
 a Court of Law as evidence of what passed by the convey- 
 ance (/) ; but a different rule would probably be adopted in 
 Ecpiity. 
 
 It has been held that the stcAvard of a manor may insist I^'^'^^f,;"',"! 
 
 parcels iii sur- 
 upon a surrender containing a substantive description of the render <>f 
 
 c J. J.V, 1 • copyholds. 
 
 tenements, and may object to a mere reierence to the descrip- 
 tion in a former surrender (/.•). 
 
 In a conveyance to a railway or waterworks company, if ^jyj"!jj^;ggj t,y 
 within the provisions of the Consolidation Acts, care must railway or 
 
 . , .„ . 1 1 i. waterworks 
 
 be taken to specify the mines and minerals, it intended to company must 
 be included; for, unless actually specified, they will not l^« ^P^cified. 
 pass (l). The reservation in such a conveyance of a right 
 to work the minerals is subject to an implied obligation to 
 afford the requisite lateral and sul))acent support to the 
 railway (m). 
 
 On the sale of a reversion, the better mode of description M»J« "^ '^''■• 
 
 scniJing rever- 
 
 is to particularise the corpus of the property, and to convey siuns. 
 it subject U) the particular precedent estates ; and not to 
 convey the reversion eo uonilne : for instance, if A., entitled 
 to Blackacre expectant on the decease and failure of issue 
 of B., sells his estate, tlte preferable mode of describing it is, 
 to convey Blackacre itself, lidhfixhiin, sul)ject to tlie life 
 estate of B., and the estates limited to his issue : and not to 
 convey, in terms, all that flio rovfrs'ion of A. under an In- 
 
 {h) See Rookc v. Lord Komnr/toa 2 Jnr. N. S. 62.3 ; 2 iMacq. 449 ; and 
 
 •2 K. & J. 753, and siqmi, p. 622. see Roirbotham v. Wilson, 2 Jur. N. S. 
 
 (/) Williams V. Movynn, 15 (i- B. 73(5 ; t3 E. & B. 593 ; 8 E. & B. 123 ; 
 
 782. 8 Jnr. N. S. 9(35 ; 8 H. L. Ca. 348 ; 
 
 (k) The Queen w Lord of tlie Mmior Mctrop. Board »f Works v. .^fttroj: 
 
 of Bishop's hitokc, 8 Dowl. P. C. tiuS. A'. Co., L. W. :J C. P. (JI2 ; Richards 
 
 (I) See 8 & 9 Vict. c. 20, s. 77 ; v. Jenkins, 17 W. R. 30, and cases 
 
 10 & 11 Vict. c. 17, s. 18. cited suprii, p. 37<''. 
 
 (m) See Caledonian R, Co, v. Sprot,
 
 534 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. (lonturc dated, k:c., expectant on tlie decease of B. and the 
 
 failure of his issue, of and in Blackacre :— for, under the 
 
 latter words of description, if a mistake be made either in 
 the insti'unient under which the reversion is claimable, or as 
 to the precise extent and nature of the precedent estates, it 
 is at least doubtful wliether anything would pass. 
 
 CTeneial The loug enumeration formerly known in a conveyance 
 
 as the " general words," is greatly shortened in modern 
 practice, and is frequently superseded by the expression 
 " rights, membei-s, easements, and appurtenances : " if thei-e 
 seems to be reason to specially notice any light or easement 
 it may be specified, with the introductory words " and in 
 particular, all that, &c." Of course, any right or easement in- 
 tended to be created over other property must be accuiutely 
 specified. Where buildings are conveyed, it may be well to 
 specify " fixtures," when such are intended to pass (ii) ; and 
 to specify " mines " in mining districts (t>). The operation 
 of general words, Ave need hardly observe, is I'estricted to 
 the estate and interest which the grantor has at the date 
 of the conveyance (^>). 
 
 Their use. General words may occasionally, under the reference to 
 
 reputation, help out an omission in the parcels ; l)ut, with 
 this exception, they seem to be of little practical use (q) : 
 for all rights and easements which are, either by implication 
 of law or by express grant, annexed to the land, or con- 
 nected with its user or enjoj'ment, would, there can be no 
 reasonable doubt, pass with it to the assignee, although not 
 enumerated or referred to ; and, on the other hand, rights 
 and casements which are not connected with the user or 
 enjoyment of tbc land, arc merely personal to the original 
 grantee, and cannot be annexed to it, and would not pass to 
 
 (n) Wiltshire v. CottrcU, 1 El. & B. Mcllish, y. 6G7, as to the difference 
 
 '371 ; and ride infra. between a yrant in general words, 
 
 i.o) HaUiday v. Deniiisoa, 1 Jur. and an express grant of a specific 
 
 N. S. 1002. light. 
 
 (_/?) See Booth v. AlrucL; L. 11. S Ch. ('/) But see Wardlc v. BrocUchurd, 
 
 Ap. G0:3 ; and see jnd.oment of L. J. ^ W. V.. 241 : 1 E. & E. lO.fiS.
 
 PREPARATION OF CONVEYAXCE. oS- 
 
 the assimice even under express words of assurance (/•)• Chap xil. 
 
 '=' '■ . . ,. Sect. 4. 
 Where, liowever, general words are inserted, the omission ot 
 
 any one of tlie particulars usually specified is to be attended 
 
 to in construino- the deed («). 
 
 Where a lease contained a plan and a description by 
 metes and Ijoimds of the parcels to be demised, the word 
 " stables," in the general words, was held insuthcient to pass 
 a stable which was not shown on the plan (/). The general 
 words " all other improvements and additions," which usually 
 close the enumeration of specified hxtures in a lessee's cove- 
 nant to yield up possession, have a wide signification, and 
 are not necessarily restricted to fixtures properly so called (a). 
 
 As a general rule, fixtures of every kind, including personal Fixtures, 
 chattels incident to the freehold (as, e.y., the locks and keys 
 of a house, or the movable parts of fixed machinery,) pass, 
 without being specified, by a conveyance of the land to 
 which they are affixed, or incident ; unless it can l)e inferred 
 that there is an intention to exclude them. In some parts 
 of the country, and especially in the manufacturing districts, 
 tixtiires and machinery are often sold separately from the 
 land to which they are attached ; and in every case where 
 it is intended to include fixtures upon a sale or mortgage 
 of buildings, general words sufficient to comprise them ought 
 to be inserted: in many cases it may also be desirable to 
 add a specific enumeration of particulars (x). 
 
 It is often very difficult to determine what articles are What are 
 
 fixtures, 
 fixtures, properly so called, and what are ukmv movable 
 
 chattels (//). Trade lixtures, Avhich have been auncxe'd to the 
 
 ()■) Seo Adroijd v. Smith, 10 C. B. {.c) Seo Matlur v. Fraser, 2 K. & J. 
 
 161, 1S8. i'36 ; Fisher v. DixoH,\'2 CI. & Fin. 
 
 (.s) llalUdaii V. Dcnaisoii, ubi auim't. 312 ; and comparo tho doubtful cases 
 
 (t) Mnitland v. Mackinnun, 'J Jur. of Tvappcn v. JIarler,-2 Cr. & INL 153 ; 
 
 N. S. 255 ; 1 H. & C. 607. Itayc v. Horloii, 5 B. & Ad. 715. 
 
 (u) Sec Burt v. Hadctt, 25 h. J. (,'/) Sco Ex inirtc Barclcty, 5 De G. 
 
 C. P. 295; Wilson v. Whatclc//, 1 J. & M. <fc Cr. 403 ; Mather v. Fraser, uhi 
 
 H. 4-36. siipnt, and caaos tlK-re citu<l.
 
 536 
 
 PREPAPvATIOX OF fONVEYAXCE. 
 
 Chap. XII, 
 Sect. 4. 
 
 froehokl, nut with the view of improving' the inheiitance, 
 but solely for the purposes of trade, will, unless expressly 
 excluded, pass by a mortgage of the freehold (z). Thus 
 machines annexed in a quasi permanent manner by means of 
 bolts or screws for the mere purpose of steadying have been 
 held to pass as fixtures (</) ; so, also, tramways used in con- 
 nection with a colliery (b) ; so, also, looms fastened to the 
 Hoor of a mill by nails driven into plugs of wood (c) : but 
 there was a contrary decision where the legs of the looms 
 were merely dropped into holes made in the Hoor, without 
 any substantial annexation to the freehold (d) ; as, also, 
 where weighing machines were sunk into holes lined with 
 brickwork, so as to make the weighing plate level with the 
 surface of the ground, but were not fixed to the brick- 
 work (c). Greenhouses constructed of wooden frames, and 
 affixed by mortar to a foundation of brickwork, have been 
 held to be fixtures (/') ; so also a plate-glass shop front, fixed 
 merely by wooden wedges, and capable of being removed with- 
 out injury to the freehold (g) ; sOjtaj^estry stretched on wooden 
 frames affixed to the ^vall, but capable of being readily 
 removed, has been held to be a fixture (/<). But not every 
 annexation to the freehold is a fixture ; nor on the other 
 hand is a fixture, or an article deemed to be such, necessarily 
 fastened to the freehold. Thus, statues, ornamental vases, 
 and stone garden-seats retaining their positions merely by 
 
 (r) See Ejc parte Cotton, 2 M. D. & 
 De G. 725 ; Callwick v. Swindell, L. R, 
 Eq. 249 ; Clhn!e v. Wood, L. R. 3 
 Exch. 257; affirmed L. R. 4 Exch. 
 328; and see Fisher v. Dixon, 12 t'l. 
 & Fin. 312. 
 
 (rt) Longhotlom v. Berry, L. R. 5 Q. 
 B. 123 ; and see comments on Ilelln- 
 icell V. Eastwood, 6 Ex. 295 ; 20 L. J. 
 (Ex.) 154 ; sec also Holland v. Hodtj- 
 son, L. R. 7 C. P. 328 ; and sec 
 further as to what is or is not a 
 sufficient annexation to the freehold, 
 Walnishi/ v. Milne, 7 C. B. K S. 115, 
 Huntley V. Jiassel, 13 Q. B. 572; 
 Martin v. lioe, 7 E, & B. 237. 
 
 (li) Turner v. Cameron, L. R. 5 Q. 
 B. 307. 
 
 (c) Boyd V. Shorrocl; L. R. 5 Eq. 72. 
 
 {d) Hutchinson v.Kay, 23 Beav. 413, 
 
 (c) He Asthury, L. R. 4 Ch. Ap. 
 *)30. 
 
 (/) Jenkins v. Gethinrj, 2 J. & H. 
 520. 
 
 (f/) Burt V. Haslett, 25 L. J. C. P. 
 :i95 ; 2 Jur. N. S. 974 ; but this was 
 an inqjrovement within the terms of 
 the lease. 
 
 {h) U'Eyncourt v. Gregory, L. R. 3 
 Eq. 382 ; but see Harrey v. Harvey, 
 2 Str. 1141.
 
 PREPARATION OF CONVEYANf'K. 537 
 
 tlieir own weight, but forming' part of the architectural Chap. Xll. 
 desi<'n of the mansion and grounds, have been held to be 
 fixtures (/) : so, straightening plates, i.e., broad iron plates 
 embedded in the Hoor, and used for straightening iron, when 
 taken out of the furnace (/•). 
 
 We may here remark, tliat upon the conveyance of luiplied -mut 
 
 •^ '- and reserva- 
 
 part of an estate, a grant of all such rights and easements tion of neces- 
 
 over the residue retained by the vendor as are essential to 'JngJ'it^'^''*'' 
 
 the due enjoyment of the part conveyed, will, if there be 
 
 nothing in the conveyance to negative the presumption, Ije 
 
 presumed at Law : for instance, the grant of an absolutely 
 
 necessary right of way (/), or of drainage (m), or of the 
 
 right to the continued enjoyment of modern lights on the 
 
 sale of a house ()i), or of any other continuous easement 
 
 necessary to the enjoyment of the property (o), or of the 
 
 right to that extraordinary support by the adjoining soil 
 
 which is requisite in order to support the buildings on the 
 
 part conveyed (p) : and, conversely, in the absence of any 
 
 thing in the conveyance to negative the presumption, the LaAV 
 
 will presume a reservation in the conveyance of all such 
 
 rights and easements over the part conveyed as are essential 
 
 {i) D'Eynconrl v. Grcjory, ubi supra. See observations on Pyer v. Carta; in 
 
 {k) Ex imrle Astbury, L. R. 4 Ch. Suffield v. Brovn, 3 N. R. 340; 12 
 Ap. (J30, 638 ; and as to rights of \V. R. 366 ; but see Watts v. Kehon, 
 ecpiitable mortgagee by deposit in L. R. 6. Ch. Ap. 166, where Pycr v. 
 respect of fixtures, see Williams V. Ccn-^e)-, was approved. 
 Evans, 23 Beav. 239. As to other (/') Supra, p. 358 ct seq. See La- 
 points connected with the law of tham on the Law of Window Lights ; 
 fixtures, and as to registration under and consider Curriers'' Company v. Cor- 
 the 17 & 18 Vict. c. 36, see the note hett, 2 Dr. & Sm. 355 ; and compare 
 at the end of this chapter. i^of.th v. Alcoch, L. R. 8 Ch. Ap. 663. 
 
 {I) Pinninyton v. Galla»d, 9 Exch. (<') Watts v. Kelson, L. R. 6 Ch. 
 
 1 ; Pearson V. Silencer, 7 Jur. N. S. Ap. 166; case of artificial under- 
 
 1195; but nothing short of absolute ground watercourse, 
 
 necessity for the user ^\^ll be sufficient ilA See Smart v. Morton, 25 L. T. 
 
 to raise the presumption. See as to 97 ; 5 El. & Bl. 80 ; Duydak v. liv 
 
 ways of necessity, supra, p. 362 ; and bertson, 3 K. & J. 695 ; Caledonian 
 
 see Gayford v. Moffatt, L. R. 4 Ch. B. Co. v. *>*v^ 2 Macq. 449 ; Roberts 
 
 Ap. 133 ; Dalies v. Sear, L. R. 7 E^. v. Jfaincs, 2 Jur. N. S. 999 ; 6 El. & 
 
 427. Bl. 643 ; 7 El. & Bl. 625 ; and see 
 
 {m) Pyer v. Carter, 1 H. & N. 916 ; cases cited, siqm). p. 342. 
 Ewart V. Cochrane, 7 Jur. N. S. 925.
 
 538 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 Sect. 4. 
 
 to tlio <luc enjoynient of the part retained by the vendor (7). 
 But in order to pass rights which are not properly servitudes, 
 the word " appurtenances " is insufticient ; words amounting 
 to an express grant must be used (r) ; and I'ecent cases seem 
 to show that, except as regards an easement of necessity", oi' 
 an apparent and continuous easement, it is only an easement 
 which has a legal existence prior to the two tenements 
 becoming united in the same owner, which, on the disposition 
 of one of them, will l)t' considered as arising by implied 
 grant or reservation (.s). 
 
 In a recent case (t), whei'e A. having a long term of years 
 in tenement X., and a short subterm in Y. an adjoining- 
 tenement, demised X. with its " lights " and appurtenances 
 to B., and then, after the expiration of the subterm, having 
 acquired the fee simple in Y., built thereon so as to obstruct 
 the lights in tenement X., the Court of Aj^peal held that 
 the grant being in general terms must be measured by the 
 extent of the interest which A. had in Y. at the date of the 
 grant, and dismissed B.'s bill for an injunction with costs. 
 
 Whero a right 
 of way, &c., 
 passes under 
 the words, 
 " all ways, 
 &c., usually 
 held or en- 
 joyed." 
 
 Where land was conveyed with "all ways, paths, passages, 
 k^c, to the same belonging, or in anywise apjDcrtaining, or 
 therewith usually held, used, occupied, or enjoyed," a right 
 of way which had been usually enjoyed with the j^ropert}-, 
 was held to pass (it) : but mere general words will not pass 
 such a right of way, unless there are other words clearly 
 showing that this was the intention of the parties (x); thus, 
 where the owner of two adjoining closes for his own con- 
 
 (q) See Pinnliu/toii v. Gallainl, 9 
 Exch. 1; Pcnrson \. tipcnccr,a\\d ^]or^ 
 tJ>in[/ton V. Gimson, uhi supra ; and see 
 Richards v. Rose, 9 Exch. 218; Mur- 
 rhie V. Black, 11 Jur. N. S. 608; 
 Davis V. Sear, Ji. 11. 7 Eq. 427. 
 
 (r) Barloiv v. Rhudc^i, 1 Cr. & INI. 
 4S9 ; Ba'ird v. Fortune, 7 Jiu-. N. S. 
 926, H. L. ; and see (rrrines v. Pea- 
 cock, Bulst. 17. 
 
 (.s') See and consider judgment of 
 
 l.onl Westhury in SujUehl v. Broicii, 
 3 N. R. .340 ; .",3 L. .^. Ch. 249 ; but 
 see Watts v. Kelson, uhi supra. 
 
 (t) Booth V. A Icock, L. E. 8 Ch. Ap. 
 663. 
 
 ((/) James \: Plant, 4 Ad. & El. 749; 
 Ijut see Thomaoii v. Waterhw, infra. 
 
 {.c) Worth iiif/ton v. (rimsoii, 6 Jur. 
 X. S. 1053 ; 29 L. J. (i. B. 113 ; and 
 see Ori/ncii v. Pc^'cor^-, Bulstr. 17.
 
 PREPARATION OF CONVEYANCE. oS'.t 
 
 veiiience, uiadu a road over close B. tu clo.sc A., during the Chap. Xll. 
 
 unity of possession, and afterwards sold close A., " -with all '^ 
 
 ways, easements, and appurtenances, to the same l)elong-ing 
 now or heretofore used and enjoyed," it was held that, as 
 the road had no existence prior to the vendor's ownership, 
 it did not pass under the general words {ij). Tliis case was 
 distinguished from James v. Plant, on the ground that in 
 the latter there was an old right of road, wliich had Ijeen 
 merely suspended during the unity of possession. 
 
 On the severance of a tenement, a distinctif)n is drawn Distinction 
 
 . between a 
 
 between a continuous easement, such as a light oi drainage, continuous 
 and a discontinuous easement, such as a right of way, as tkmous eas° 
 respects the enjoyment of the right being continued to the ™^°*- 
 owner of the dissevered tenement. Thus, it has been held 
 that where the owner of tAvo or more adjoining houses sells 
 and conveys one of them, the purchaser is entitled to the 
 benefit of all the drains from his house, and takes subject to 
 all the drains then necessarily used from the adjoining liouse, 
 without any express grant or reservation (z). So, also, where 
 the owner of two adjoining properties, X. and Y., during the 
 unity of ownership and for his own convenience, made an 
 underground watercourse through Y. to supply his cattle 
 sheds on X., and first sold X. and then Y. to difi'erent pur- 
 chasers, it was held that the purchaser of X. was entitled, 
 without express grant, to the continued enjoyment of the right 
 Avatercourse {a) ; and tlie circumstance that he had applied 
 the water to a new and more beneficial use was not considered 
 material (h). But on a severance or partition of a tenement, 
 an ordinary viglit of wa)% not being a way of absolute 
 
 (i/) Thomson v. Walcrloxr, Ti. R. G & Sm. 571 ; Glare v. Hord'inrj, 'Ti 
 
 Ya\, 36 ; and see Lmujlcy v. Uuiamoiul, L. J. N. S. Exch. 286. 
 L. R. SExchiei.^^-'^^'^''^;^/^^^^.^ (rt) WcUtsw. Kchon, L. R. t> Ch. 
 
 (s) Pyo- V. CarUi; 1 11^. & N. 916 ; 'Ap. 166, reveriiing on this jioint Lord 
 
 but see Lord Westbury's remarks on llonully. 
 
 this case in Su^dd v. Brown, 3 N. R. {b) lb. ; and r,ee uii thi.i latter jKiint 
 
 3i0. Sec, too, remarks of Blackburn, a case of Jlolkir v. Pvrrdl, l<. R. Ic 
 
 •T., in Polden v. Bastard, 4 Best & Sm. l>>xih. 5f'. 
 ■1')^, and in Pearson v. Spencer, 1 Best
 
 )40 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. necessity, will not pass unless the grantor uses words sutH- 
 L_! cient to create the easement de noco (c). 
 
 Kights Ill- 
 tended to be 
 retained 
 should be 
 expressly 
 mentioned. 
 
 In every case, where a vendor is selling part of his land, 
 the nature and extent of the easements, or quasi-easements, 
 which he intends to retain, should not be left to mere pre- 
 sumption. Unless the right to be reserved by implication is 
 clearly essential to the enjoyment of the property retained, 
 the ordinary rule that a grantor shall not derogate from his 
 absolute grant, will prevent its being claimed against the 
 purchaser. In one case, it was stated by V.-C. Kindersley 
 as well settled law that if a person having a house on his 
 land, the windows of which have existed for more than 
 twenty years, sells a portion of the land, the purchaser may 
 erect any buildings he pleases upon the land so sold to him, 
 however much tliey may interfere with the lights of the 
 vendor's house (d). 
 
 What may be 
 the subject of 
 a reservation. 
 
 In the preceding remarks, the word " reservation " has 
 been used in a general sense, as including any 'right and 
 easement, or quasi-easement, which a vendor, on selling part 
 of his property, may be desii'ous of I'etaining for his own 
 benefit over the land conveyed ; but a reservation, in the 
 strict sense of the term, can only be in respect of something- 
 issuing out of the thing granted, just as an exception 
 must be parcel of Avhat Avould otherwise be the entire t}^ of 
 the thing granted. Thus, a right of sporting, or the like, 
 cannot properly be made the suliject of a reservation (e) ; 
 and ought to be expressly re-granted or provided for in the 
 declaration of uses, as above suggested ( /") ; but in many 
 cases, what purports to b«^ an exception (or reservation,) 
 will be held to operate as a fresh grant ([/). 
 
 (r) Barlow v. Modes, 1 (Jr. & M. 
 448 ; Worthiii'jtoH v. (iimson, 6 Jur. 
 N. S. 1053 ; and see WariUc v. 
 Bvockkhurst, Ell. & Ell. 1058; Watts 
 V. Kelson, uhi supra, and cases cited in 
 judgment of L. J. Mellish, 
 
 {(l) Curritrs' Co. v. Corbett, 2 Dr, 
 & Sm. .355. 
 
 (e) Graham v. Kimrt, 25 L. J. N. S. 
 Exch. 42; and sec Wickhamv. Hanker, 
 7 M. k W. 63. 
 
 (/) Vk(csi(2'ra, p. 500. 
 
 {(j) Hee Wickham v. Hawker, ubl 
 supra ; and Durham and Sunderland 
 R. Co. V. Walker, 2 Q. B. 967.
 
 PREPAIIATKJN OV CONVEYANCE. 541 
 
 Upon the sale of land, it is not competent to tlu^ vendor Chap. XII. 
 
 Sect 4 
 to create new rights, unconnected with its use or enjoy- ' 
 
 As to the en- a 
 
 nient, and annex them to it, so as to pass to assionees: e.ff., Astotnem 
 
 ' ' J^ » i/ ' tion, &c., (if 
 
 a right for the owners of close A. to walk over close B. for "ew ease- 
 
 . . . ■, niellts. 
 
 all purposes (h) : noi- to sul)ject it to novel burdens ()) : hut 
 where the conveyance of close A. contains a grant to th<' 
 purchaser of the right to use " for all pin-poses " a way over 
 a piece of land, lying between close A. and a street, this 
 will be held to mean, " for all purjjoses which make it 
 necessary to pass from close A. to the street," and not for all 
 purposes whatsoever (Jc). A covenant by A., the owner of 
 close X., ^vith B., the owner of an adjoining close Y., that a 
 certain stream of water should flow uninterruptedly along a 
 specified existing channel through X. into Y., and that A. 
 would cleanse the channel, and that in default B. might do 
 so, has been held to prevent an alteration of the course of 
 the stream even within the limits of close X. ; although the 
 point of outflow remained unaltered ; and to be enforceable 
 l)y the assignee of A. against the assignee of B. (I). So, a 
 covenant by the purchasers that the vendor, his heirs and 
 assigns should have the exclusive right of supplying beer to 
 any public-house erected on the land, has Ijeen held to Ite 
 enforceable in Equity (;m). 
 
 The grant of deeds is now usually omitted : it seems in- I^^eds. 
 operative if, as is usually the case, the deeds are delivered, 
 or if the right to them is annexed to the estate conveyed ; 
 and if not inoperative, it is practically useless, as being too 
 vague (n). 
 
 The clause Ijeginning " and the reversion and re^•er- ^e^'^^''''''" 
 
 ^ " clause. , 
 
 (k) Achroyd v. iitnith, 10 C. B. 1(54; Ap. t)50. 
 Uf/erton v. Lord Brownloio, 4 H. L. Ca. (l) Northam v. lluvhy, 1 El. & B. 
 
 1 ; and compare Re Stochport Water- 66.5 and see as to the necessity for 
 
 vwrhx Co., 3 H. & C. 300 ; Nuttall v. creation of new easements by grant 
 
 BrareweU,lj.M. 2V.\c\\.\. de novo, Wnrthhifjton v. G-ivtson, 6 
 
 (!) Aclroi/d V. Smith, uhi supra; Jur. N. S. 105.3. 
 and see Keppell v. Baile;/, 2 Myl. & K. (hi) Catt v. TourJe, L. R. 4 Ch. Ap. 
 
 r.S.'i. G54. 
 
 (/•) Thorpe V, Brimfit, L. B. 8 Ch. (n See Sugd. p. 440, et ser/.
 
 r)42 
 
 I'KKI'AKATIOX OF CONVKVANCK. 
 
 Chap. XII. sioiis, iJcc," is also iisnallv oiiiitted in iiiodcni iiiactice, and 
 
 Sect. 4. + 1 1 ■ 
 seems to 'h' useless. 
 
 Estate clause. '^\']-^e clanse ])eoinning' "and all the estate, right, title, and 
 interest, ke." is generally retained, and may be occasionally 
 of practical use. It does not, however, appear that it would 
 even at Law, pass any interest in the property, which, from a 
 general consideration of the deed, it may be collected was 
 not intended to pass (o) ; but in the case of several vendors, 
 who concur in assuring an estate, say in fee simple, there 
 can, it is conceived, be no doubt that under the common 
 clause the interests of all the conveying parties will pass, 
 even although such parties, as between themselves, may in 
 fact be entitled somewhat differently from what they 
 supposed to be the case. 
 
 Dower uses — 
 whether to be 
 insei'ted. 
 
 It is still not uncommon practice, exen when the pur- 
 chaser has no wife to whom he was married before the late 
 Dower Act came into operation, to convey the estate, if 
 freehold of inheritance, to the ordinary uses to bar dower, 
 in order to avoid the necessity, on future sales, of proving 
 the non-existence of any such wife ; and to add the common 
 clause negativing the right to dower. Where, however, the 
 draftsman is aware that no such wife exists, it seems to be 
 sufficient to recite the fact. It is also not uncommon for 
 the draftsman to exclude the wife's dower, although he may 
 have no special instructions to that effect. In theory, this 
 is scarcely defensible. The purchaser may, under the new 
 law, defeat his wife's dower by a conveyance, or by his 
 will ; and, in the event of his intestacy, the effect of a 
 declaration in bar of dower may often he to prefer a remote 
 heir to the wife. At the same time, it must be remembered 
 that a mere general devise does not t»rdinarily exclude the 
 wife's dower ; although no doubt almost always intended to 
 do so ; and the Avriter, contrary t(j the opinion which he 
 had long held on the point, is inclined to hold that the 
 
 (o) Seo Jliint V. litmnant, 9 Exch. K. & J. 113; Rwl-e v. Lml Ken- 
 635 ; and see Rooper v. Harrison, 2 sbujton, 2 K. & J, 753.
 
 i'llErAllATiOX Ol' CONVEYANCE. 543 
 
 preferaljlc practice is to insert the declaration. The common Cbup. XTT. 
 
 Ill' 1 1 J. 1 \ Sect. i. 
 
 limitations in a conveyance executed ueiore the late Uower 
 
 Act came into operation, but without the express negative 
 of a ria'ht to dowur, do nut 1)ar the dower ol' a woman mar- 
 ricd subsetjuently to the commencement of the operation of 
 the Act (i'). It is not necessary that the purchaser should 
 execute the conveyance in order to give cH'ect to the 
 declaration against dower (7). 
 
 Under a limitation to uses to bar dower, not preceded by ^^'ll'■tllL>r \m- 
 
 chaser can 
 
 any power of appointment, the purchaser may, as a matter ro«|uire cun- 
 of strict right, requii'e the concurrence of the dower trustee ,'i„\vcr tnislce 
 in the con\eyance : but an objection to the title on this 
 ground, though technically well founded, is considered 
 frivolous and vexatious (/'). 
 
 (5.) A'-i to the tVl'CiUluU: Sections. 
 
 The covenants for title are that part of the draft upon As to thu 
 
 , ,. , ,. r- Til- 11 i i- ii covenants. 
 
 which disputes and ([uestions ot difhculty most irequently (•,,,. .^.^^t^ £,,1. 
 
 arise : tliey are of considerable, although, perhaps, to a pur- title. 
 
 chaser, of rather o^•el•-estimated importance : to the solicitor J]!^,]||'ity j^ 
 
 they are important, inasmuch as lie will be resi)onsible to his i-espect 
 '' ^ . . . thereof. 
 
 client for permitting him unknowingly to enter into improper 
 covena]its (.s) ; or for not securing to him those to which he 
 is entitled from the other party. 
 
 No precise form of words is necessary to constitute a ('"vcnauts, 
 
 liow con- 
 
 blituteil, &c. , 
 
 (/,) F,-!/ V. XMc, 1 Jur. N. S. 7<w ; <n7m„, 1 Drew 42 : JinHnnd v. O'l/c- ^-- <'^tJ 'l^'^^Jl' d fiulL 
 
 •JS Bcav. 508 ; 7 De G. ^1. & (J. (Mil ; hcrUon, 1. K. 8 Va^. m ■ Parhr v., '^"^ T XZf ' ^ 
 
 C'/r(r/je V. /'ranWf/f, 4 K. & Jo. -JiJt). f^oi'xrb;/, i Uc (i. IS]. & C. ^-^ 5 a, a., ^?^ ,^ Z. /e /<; «r 3^ 
 
 {'/) Fairlrif V. 2'i'ck; 3 Jur. X. S. Thumpaon v. Burnt, ],. 15. IfJ ]v|. ■ 1 y- 
 
 liiS!) ; C W. li. rt ; and see further as 5!iL' ; >Vatsou'sC'oiiiiten(]iinnof Etiuity, 
 
 to the effect of a general devise on i>. -j^t'l, and eases there cited. 
 
 the widow's right to dower, and as to (c) Cvllard v. Rvc, 1 Uc G. & J. 
 
 her being put to her election between ;"i"_'5. 
 
 her doAver and the devised estate. (■<) f^'lanitard v. i'lUtkurnc, 10 Bing, 
 
 Fids V. Lcirls, 3 Hare, 310 ; Bmilinj IDl. 
 
 V JJiudiii;/, 3 K. & J. 'li)7; O'iOnvn v.
 
 544 
 
 rnF.PAnATTOX of fOXVF.YANrE. 
 
 Chap. XII. 
 Sect. 5. 
 
 covenant, if only tliero is an agreement 1)}^ deod (/) ; and if 
 the covenantor adopts the deed in other respects, his non- 
 execution of it is not material for the purpose of binding him 
 1 )y his covenant (u). If the covenant is contained in a deed 
 poll, the covenantee should be named or defined therein ; 
 and if in an indenture he shouM be made a party : but as 
 respects Jirredltamentii the benefit of a covenant contained 
 in an indenture executed after the 1st October, 1845, ma3'l)e 
 taken, although the taker be not named a party (x). Cove- 
 nants maj^, of course, be entered into by reference to those in 
 another instrument (y). 
 
 \Mmt cove- A vendor, if the absolute Ijeneficial owner, enters into 
 
 iiito^hv abso- ^^^^ usual coveuauts that he has good right to appoint and 
 lute beiieiicial release, assiirn, or surrender (as the case may be, according- 
 as the estate is freehokl, leasehold, or copyhold), for quiet 
 enjoyment, free from encuml:»ranccs, and for further assur- 
 ance (z). 
 
 What usual 
 covenant hy, 
 may be 
 omitted. 
 
 It is usual to insert in a convej'^ance by appointment a 
 covenant that the power was well created and is subsisting ; 
 and in an assignment of leaseholds, a covenant that the 
 lease was a valid demise and that the term is subsisting ; 
 but these covenants are, in effect, comprised in the covenants 
 for right to appoint and for right to assign; and conse- 
 quently are often omitted. The vendor of leaseholds also 
 covenants that the rent has been paid up to the last day 
 of payment, and that all other the lessee's covenants ha\Q 
 been performed iq") to the date of the assignment. 
 
 (t) Can- V. riobcrt.% 5 B. & Ad. 82 ; 
 Wood V. Copper Mhiers' Co., 7 C. B. 
 906, 936; Itlahy v. G. W. R Co., 14 
 M. & W. 816 ; Adey v. Arnold, 16 
 Jiir. 1123. 
 
 {(') ArcJics V. Coidstiiifj, 6 ^I. & (Ir. 
 75. 
 
 (.r) See 8 & 9 Vict. c. 106, s. .'5. 
 
 (y) Re Straffon, 1 De G. U. & O. 
 576. 
 
 (.:) See Church v. Brovn, 15 Ves. 
 263, 264. See, as to renewable lease- 
 holds, Vance v. Earl of rMnfnrlcy, 
 
 1 Ir. f'h. Tv. 321 . As to whether there 
 is any im])lied warranty on sale of 
 copyiiglit, see Films v. Mam/at, 17 
 q. B. 281 . Scmlle, that there is, as 
 regards executory contracts generall}' 
 for sale of chattels. In the absence of 
 express agi'eement, the assignor of a 
 patent does not warrant its validity, 
 .%i!th V. Ncale, 2 C. B. X. S. (17 ; 
 .Smith V. Scott, 6 C. B. N. S. 771. See 
 as to covenants for further assurance. 
 Devils v, Tollemache, 2 Jur. X. S, 
 1181 : and Infra,
 
 PREPARATION OF CONVEYANCE. '>V) 
 
 Tlie covenants of a vendor who is absolute beneficial Chap. xil. 
 
 iSect. 5. 
 
 owner, if he have acquired the estate by purchase for money 
 
 or other valuable consideration, are extended _to_the acts of "^P co'i-enantl^ 
 himself (a) and parties claiming under him : it is conceived, extend. 
 that marriage is for this, as it is for other purposes, a 
 valuable consideration, even as in favour of collaterals (h) ; 
 but, in practice, it is usual for a vendor claiming under a 
 man-iage settlement to covenant against the acts of the 
 settlor and his representatives (c). 
 
 It appears to have been formerly held that the Court of pifferenca 
 Chancery would not compel a vendor to enter into covenants practice of 
 extending back further than the acts of the last owner {d) ; and rule of 
 but where such owner himself acquired the estate otherwise *^^® ^'^'"''*- 
 than by purchase for valuable consideration, the " universal 
 and settled practice of conveyancers " (e) is, to make the 
 covenants extend to the acts of all prior owners up to and 
 inclusive of the last purchaser for value: and the Courts 
 would probably at the present day be inclined to sanction 
 such practice by decision. 
 
 The owner of an estate sold by order of the Court, or by As to cove- 
 a trustee to whom he has himself conveyed upon trusts for "f^^Jier/on sale 
 sale without enterino^ into covenants for title which will J'y p''"'* ^^' 
 
 ^ by trustees. 
 
 run with the land, enters into the same covenants as if he 
 himself were selling (/) : but although it is the settled 
 practice of conveyancers to make all the beneficiaries, who 
 take a substantial interest in the proceeds of a sale by 
 trustees, covenant to the extent of that interest, the rule 
 has been held to be different in the case of a sale 
 under the Court, where the trustees are competent to give a 
 valid discharge for the purchase-money (g). In one case, 
 
 (a) Broicninrj v. Wright, 2 Bos. & Ves. 2:^3, 236. 
 
 P. 13, 22 ; Sug. 599, 60.5. (e) Sug. 'ui. See Pid-ett v. Lofff/nn, 
 
 {D Davenport v. Bislwpp, 1 Ph. 14 Ves. 21.'), 230; and 2 r>os. & I'. 
 
 69S. 22. 
 
 (f) 9 Jarm. Conv. hy S. 375. (/) Sng. 574. 
 
 (c/) Loijd V. Grifith, 3 Atk. 2r)8 ; (.7^ Coitrdl v. CottreU, L. R. 2 Eq. 
 
 Wal-emaii v. DitrJiess of RnthinJ, 3 330, V.-C. S. 
 
 VOL. r. 
 
 N
 
 546 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. where a sale of a term of years was ordered by the Court, 
 ^^"'^' ^" but instead of carrying out the sale as directed, a portion of 
 the fee was, at the request of the owner, a tenant for life, 
 sold by the trustees under a power contained in the settle- 
 ment, it was held that this was not the case of a sale under 
 the decree of the Court, and that the tenant for life must 
 covenant for title {h) : but no opinion seems to have been 
 expressed by the Court as to what should be the form or 
 extent of the covenants. These questions upon sales under 
 the decree, or by the direction of the Court, are, according 
 to the present practice, usually precluded by a special con- 
 dition. And, even in the case of private sales, it may be 
 doubted whether the practice of conveyancers could be 
 altogether enforced ; and whether the rules laid down by 
 Lord St. Leonards — that "Where the money to arise by 
 sale of the estate is absolutely given to two or more persons, 
 they are substantially owners of the estate; and must 
 accordingly covenant for title : " " so even where the money is 
 in the first place to be applied in payment of debts, yet if 
 they are all paid previously to the sale, the cestuis que ttnist 
 must, it is conceived, covenant for the title " — are not too 
 broadly stated. Suppose that a testator devises an estate 
 to trustees in trust to sell, and Avith power to give receipts, 
 and to divide the proceeds among his children, all of whom 
 are sui juris. Here the beneficiaries, if all wish so to do, 
 may elect that there shall be no sale, but to take the land 
 as real estate. Any of the beneficiaries may, however, 
 require the trustees to proceed to a sale, even against the 
 wishes of their co-beneficiaries. Admitting that those who 
 ao-ree to a sale and ioin in the contract are bound to concur 
 in the conveyance, and to covenant for title to the extent of 
 their interests, it does not occur to the writer that there is 
 any mode by which the dissentients can be compelled so to 
 concur and convenant. Nor does he conceive that, if they 
 refuse so to do, their refusal w^ould entitle the purchaser to 
 rescind the contract. If so, the inability of trustees for sale 
 
 (h) Earl Ponlftt v. Homi, L. E. 5 E-i. 115.
 
 PREPARATION OF CONVEYAXf'E. 547 
 
 to procure the concurrence of all the beneficiaries amounts, Chap. Xll. 
 . . , Sect. 5. 
 
 in reality, to a delect m title. 
 
 It appears to be the general notion that landowners ^^ ^^ ^f'^^- 
 ^ ^ ^ _ owners cove- 
 
 agreeing to sell land to railway and other similar com- nants on sale 
 
 panies must enter into the usual covenants for title : the company, 
 liability can hardly be questioned in respect of land which 
 the company has no power to take compulsorily ; such as 
 land required for extraordinary purposes (i), or in respect of 
 land taken under an ordinary agreement with the owner ; 
 but as respects land which the company has power to 
 take compulsorily, the landowner's contract, although ap- 
 parently voluntary, is scarcely so in fact ; and his liability 
 to enter into covenants may be considered doubtful in prin- 
 ciple, and not supported by any satisfactory authority ; for 
 in " Be the London Bridge Acts " (Jc), there was the im- 
 portant fact— although not noticed in the judgment — of the 
 enabling Act having been obtained by the vendors pursuant 
 to an agreement with the purchaser : it is, however, believed 
 to be the general practice for such owners to covenant ; and 
 the practice would probably, if necessary, be supported by 
 decision. As respects landowners who have entered into no 
 agreement, but as against whom the entire proceedings of 
 the company have been compulsory, it is conceived that 
 they are not bound, and do not in ordinary practice consent, 
 to enter into any covenant (/) ; but as the interests of all 
 parties are bound by the statutory conveyance, the value of 
 covenants for title is extremely small (m). 
 
 It was decided by Shadwell, V.-C, that the first and Liability of 
 
 tenants for 
 
 second tenants for life of a settled estate, selling under a Hf^ to cove- 
 private Act of Parliament which they themselves, pursuant "^"*' 
 to an agreement with the purchaser, had obtained for the 
 purpose, were bound to enter into the usual covenants for 
 title ; the Court assuming that upon a sale under a power 
 
 {i) 8 & 9 Vict. c. 18, ss. 12 and 13. 136. 
 
 (k) Cited infra. (m) Dav. Conv. vol. ii. p. 480, 
 
 (?) Frend and Ware's Rail. Conv. 
 
 N n2
 
 '>m PREPARATION OF CONVEYANCE. 
 
 Chap. XTL with the consent of tlie tenant for hfe his obligation so to 
 covenant was a matter of course (n). 
 
 Sect. 
 
 To whose acts j^^ ^|^ abovc casc the statutory vendors were tenants for 
 
 their cove- -^ 
 
 nants should life under a will, and the covenants for title were extended 
 
 extend. 
 
 to acts of their testator : the question whether they were 
 properly so extended, does not appear to have been much 
 considered ; and it is submitted, that, although a tenant for 
 life or other owner of a particular estate may be required so 
 to covenant in respect of his own beneficial interest, yet 
 that, as respects the reversion, (in which he has no bene- 
 ficial interest,) his liability under the covenants should be 
 confined to the acts of himself and parties claiming under 
 him : considering the present frequency of such sales the 
 point is one of some practical importance. 
 
 In conformity with the above views, the writer of these 
 remarks, on settling a conveyance on behalf of a tenant for 
 life, inserted in one case, after covenants for title extending 
 to the acts and defaults of his ancestors, a clause to the 
 following effect, viz., " Provided always, that as respects 
 the reversion or remainder, expectant on the life estate of 
 the said A. B., of and in the hereditaments intended to be 
 hereby assured, and the title to and further assurance of the 
 said hereditaments after his decease, his covenants herein- 
 before contained shall not extend to the acts, deeds, or 
 defaults of any person or persons other than 4nd besides 
 himself and his own heirs, and persons claiming or to claim 
 under or in trust for him, them, or any of them : " and this 
 being resisted by the purchaser's counsel, the question was 
 referred to Mr. Christie, who decided in favour of the pro- 
 posed restriction. A proviso or qualification to this effect is 
 now commonly introduced in practice (o). 
 
 Covenants on Upon a salo, b}' husltand and wife, of the wife's unsettled 
 sale, by hus- 
 
 {n) Re London Bridge Acts, 1.3 Sim. (o) See Dav. Conv. vol. ii. pp. 230, 
 
 176, 179. And see Earl Povhtt v. 237, 3rd edit. 
 Hood,Jj. R. 5Eq.'n5.
 
 rREPARATlON OF ('ONVEYANX'E. 540 
 
 freehold or copyhold estate, the husband, since he either does Cbap. xil. 
 or may receive the purchase-money, covenants for title as 
 
 band and 
 
 upon the sale of his own estate : and if there be any doubt '^^^^^ of ^^e'» 
 
 as to the fact of marriage, the woman should herself enter t^tatc. 
 
 into usual covenants : and it is submitted that a purchaser 
 
 might require their introduction : and in such a case, and also 
 
 in a case even where no such doubt exists, it is desirable to 
 
 make the wife covenant, so as to bind her separate estate, if 
 
 any. And this, although it probably could not be insisted 
 
 upon, is commonly required and conceded in modern 
 
 practice. 
 
 On a sale of leaseholds in lots by w^ay of underleases, Aa to cov«- 
 
 •^ -J _ ^ nants by 
 
 the vendor, in addition to the covenant for quiet enjoy- vendor of 
 ment, must covenant wdth each sublessee to pay the rent in 
 the original lease, and to perform the covenants therein 
 contained so far as the same relate to the residue of the 
 property {'p). 
 
 An apparently simple point, which must be of connnon viietlier 
 occurrence, but upon which the books of precedents were ^'^"""j^!,p'^ 
 found to differ, arose in practice ; viz., whether on a sale of generally. 
 leaseholds by a vendor who claimed by purchase, he was 
 bound to covenant generally that the covenants in the lease 
 had been performed up to the time of completion, or wdiethor 
 words should be introduced limiting his liability to breaches 
 of covenant which might have occurred during his ow^i 
 period of owaiership. The point being referred by both sides 
 to the writer, he considered that the covenant was in effect 
 merely a covenant for title, and therefore fell within the 
 ordinary rule, and must be i-estricted as contended for, on 
 behalf of the vendor ; and this opinion, although at first 
 questioned, was upon consideration, assented to hy eminent 
 conveyancers. And although upon the sale of leaseholds by 
 a vendor who claims by purchase, a covenant that the lease 
 is valid is usually introduced, it is now well settled that the 
 covenant is (pialified, extending only to his own acts and 
 
 (j)) Browne v. Faid, 2(3 L. T. 232, V.-C. K. 2 Jur. N. S. 317.
 
 550 
 
 PREPARATIOX OF CONVEYANCE. 
 
 Chfap. XII. omissions and those of any testator or intestate through 
 '—1 — whom lie claims {q). 
 
 As to limiting 
 the liability of 
 several cove* 
 nantors to 
 their respec- 
 tive shares of 
 tlie purchase^ 
 money. 
 
 It has been a common practice in cases where tenants 
 in connnon, or other persons having partial interests in an 
 estate, concur in the conveyance and in the covenants for 
 title, to limit the liability of each covenantor to the amount 
 of his share in the purchase-money. But the coiTectness 
 of this practice, which seems to have been founded on the 
 notion that the amount of the purchase-money was the 
 measure of damages in case of eviction (?*), appears to be 
 open to question. 
 
 As to cove- 
 hants by 
 vendors who 
 are not bene- 
 ficial owaiers. 
 
 As a general rule, fiduciary vendors only covenant that 
 they have done no act to prevent their selling, or to incumber 
 the property (s) ; a covenant for furthur assurance would 
 seem to be a reasonable addition, and is often attempted to 
 be introduced : but it was decided in Worley v. Fraiwpton (t), 
 that trustees cannot, as defendants, be compelled to enter 
 into it : even although they were not themselves the con- 
 tracting parties, but represented the original vendor, who 
 would himself have been bound to enter into such a cove- 
 nant. The Court, however, raised but abstained from 
 deciding the question whether as plaintiffs they could have 
 procured relief except on the terms of entering into the 
 covenant. It has been held, that the heir-at-law and 
 assignees in bankruptcy of an intended lessor are bomid, to 
 the extent of their interests in the property, to enter into 
 special covenants which the intended lessor had contracted 
 to enter into (u) ; and the decision would apparently apply 
 to the case of an agreement for sale and for special covenants 
 by the vendor. So it has been held by Shadwell, V.-C, and 
 
 iq) See Dav. Conv., vol. ii. p. 201. 
 3rd edit. 
 
 (r) Vide infrd,, Ch. XIV. s. 5. 
 
 {«) 11 Ves. 345 ; Staines v. Morris, 
 1 V. & B. 8 ; Onsloio v. Lord Londes- 
 borough, 10 Ha. 74. 
 
 (t) 5 Ha. 560 ; and see Copper 
 
 Miners' Co. v. Beach, 13 Beav. 478; 
 Hodges v. Blagrave, 18 Beav. 404 ; 
 and see and consider Hare v. Surges, 
 4 K. & Jo. 45, 57. 
 
 (w) Page v. Broom, 3 Beav. 36. As 
 to making the bankrupt a party, vide 
 supra, p. 513.
 
 PREPARATION OF C(JXVEYAN(JF, 551 
 
 by Wood, V.-C that the executors of a party who has Chap. XII. 
 
 . . Sect. 5. 
 
 agreed to take a lease, may, if they admit assets, be com- '. — '. — 
 
 pelled to enter into the lessee's covenants, so qualified as to 
 restrict their liability to that which they would have 
 incurred had the lease, with corresponding covenants, been 
 executed by their testator (x). 
 
 These decisions are perhaps difficult to be reconciled with 
 that in Woiiey v. Franipton ; and seem to consist better with 
 the general principle of Equity, that persons who agree to 
 stand in the place of another, represent his liabilities as well 
 as his rights. They also suggest whether the personal repre- 
 sentatives of a deceased vendor or purchaser might not be 
 required to join in the conveyance, and, to the extent of the 
 assets, to enter into special covenants which the deceased had 
 agi'eed to enter into. 
 
 In one case where there was a lease for lives, with a observations 
 covenant for renewal on the death of a cestui que vie at the ^^^^^^^^ ^" 
 same rent and subject to the same covenants, " including this 
 present covenant," it was held that this gave the lessee a 
 perpetual right of renewal ; and although, in effect, the 
 reversioner became a trustee for the lessee, yet the rule laid 
 down in The Copper Miners Co. v. Beach that the Court will 
 not under a decree for specific performance compel parties, 
 who are trustees, to enter into covenants into which under 
 ordinary circumstances they would not be called upon to 
 enter, had no application to a case where the person in whom 
 the reversion is vested is entitled to the beneficial interest {y). 
 The decision in this case was rested on the ground that the 
 reversioner was the beneficial owner ; but it is conceived that 
 where a lessor enters into a covenant for perpetual renewal, 
 and the reversion afterwards becomes vested in a mere 
 trustee, the latter on granting a renewal may properly be 
 required to enter into a similar covenant : of course so 
 
 {x) Phillips V. Everard, 5 Sim. 102 ; K. & Jo. 45, 57. 
 and Stephens v. Hotham, 4 K. & J. (y) Hart v. Burjes, 4 K. & Ju. 45, 
 
 571. And set.' Ilurc v. Burfjcs, 1 57. Sec and tunsider this ca.sc.
 
 552 I'llErAKATION OF CONVEYANCE. 
 
 Chap. XII. framed as to bind the estate, but not so as to render himself 
 
 Sect. 6. 
 
 personally liable except in respect of his own acts. 
 
 Tivcviuibraiicer j^y^ inciuabrancer who releases the estate, whether volun- 
 
 releasing. 
 
 tarily or in consideration of payment, only covenants that 
 he has done no act to incumber. 
 
 ioiniifcf hi'a Where a mortgagee sells under his power of sale, and the 
 
 pale by mortgagor concurs, the latter enters into the ordinarv vendoi-'s 
 
 mortgagee. o ^d ^ > j 
 
 covenants for title, which supersede the absolute covenants 
 contained in the mortgage deed. 
 
 B.ankrui>t When a bankrupt concurs with his trustee in selling, he 
 
 joining in sale . 
 
 by his generally enters into covenants for title as an oixlinary 
 
 assignet-b. vendor, but if he refuses, he cannot be compelled to do so (e). 
 
 . '',!!?!','*,'^ '!!„ ) Covenants for title by tenants in common upon a sale are 
 juint tenants, limited to their several shares ; joint tenants are sometimes 
 made to covenant both jointly and severally ; but it seems 
 more reasonable to restrict their covenants to the extent of 
 their individual interests. A mortgagee may require his 
 mortgagoi's, whether they are joint tenants or tenants in 
 common, to enter into joint and several covenants for title. 
 
 Crown give.s A puichascr fi'om the Crown can require no covenants for 
 
 no covenants. ■ -, , \ 
 title (((). 
 
 Covenants by Upou a Sale by trustees under a will, for general purposes, 
 rested in pur- or by ordcr of the Coui't, the purchaser is not entitled to 
 chaBe-money. ^^^ covcnant for title but that against incumbrances ; ex- 
 cept, perhaps (in the case of a will), where the purposes to 
 which the purchase-money is primarily applicable have since 
 been satisfied, so that the substantial owners are in fact 
 ascertainable (6) ; and they have concurred in or confirmed 
 the contract. In practice, however, it is usual in every case 
 
 (j) A.S to the power of the Court of («) Sug. 575. 
 
 Bankruptcy to order the bankrupt to (6) See Loyd \. Griffith, 3 Atk. 
 
 join in the conveyance, vide supra, 268; Wakeman v. Duchess of Rutland, 
 
 p. 513. " 3 Ves. 501 ; 8 Bro, P. C. 145.
 
 PREPARATION OF CONVEYANCE. ooo 
 
 to insert covenants Lv the parties who are beneficially Chap. xii. 
 
 entitled in any considerable amount to the residue oi the 
 
 purchase-money (c) ; but according to a modern decision, 
 this cannot be insisted on where the sale is ordered by the 
 Court, and the trustees are competent to give a discharge 
 for the purchase-money {d) : and the soundness of the 
 general practice seems open to question. 
 
 Any covenant intended to provide for a defect in title ^^'"Jj"y';''5jjjy,,^ 
 which appears on the face of the conveyance, should be so defect. 
 expressed (c). If the defect can be kept off the face of the 
 conveyance (which is generally the case) the covenant 
 should be entered into by a separate instrument, which 
 should refer to the defect; or there should be a contem- 
 poraneous agreement signed by the covenantor admitting 
 the existence of the defect, and stating that the same is 
 intended to be included in the covenant (/). Where the Covenauts for 
 
 1 11 Li ti in III uV 
 
 defect consists in the existence of incumbrances, it will be a against 
 
 . , charges. 
 
 matter for consideration whether a mere covenant to indem- 
 nify can be relied on, without a covenant to pay or procure 
 payment of the charge : this question particularly applies to 
 interest upon charges, and to annuities or other periodical 
 payments : — under a mere covenant to indemnify, the pur- 
 chaser would have no remedy until actual disturbance, 
 although the interest or annuity might be running heavily 
 into arrear. 
 
 Where, upon the sale of an estate, a bond in double the Ah to wn- 
 amount of the purchase-money was given by the vendor to J„|,",iy'yf " 
 the purchaser, as an indemnity against the possible claims indumnity. 
 of a supposed equitable mortgagee, with a condition that if 
 at the end of a year there should be no action or suit 
 pending whereby the purchaser's title might be prejudiced, 
 or if the vendor sliould then pay to the purchaser a sum 
 
 (c) Sug. 574. S'Dtl see Lc7cln, 6th Ed., p. 390. 
 
 (d) Cottrdl V. Cottrell, L. 11. 2 Eq. (c) See 0[/Ucie v. Foljamhe, 3 Mer. 
 330 V,-C. S. ; and compare Earl 53; Butler's note to Co. Litt. 3S4, a. 
 Poalctl V. Uovd, L 11. 5 E(i. 330 ; (f) Vide infra, Ch. XIV. s. 5.
 
 554 
 
 PREPARATION OF CONVEYANCR. 
 
 Chap. XIT. 
 Sect. 5. 
 
 equal in amount to the purchase-money with interest, the 
 bond should be void, the equitable mortgage having been 
 established in a suit commenced within the year, and the 
 vendor having failed to pay the stipulated amoimt by the 
 time appointed, and his subsequent offer to do so having 
 been rejected, it was held that the purchaser, who had paid 
 off the incumbrancer to an amount equal to that secured by 
 the bond, was entitled to retain the estate, and to enforce 
 the bond to the full extent (</). It was considered doubtful 
 whether the liability upon the bond was intended to be 
 limited to the purchase-money and interest, and the Court 
 declined to interfere mth a legal right upon the assertion of 
 a merely doubtful equity. 
 
 Covenant for 
 production of 
 deeds. 
 
 A covenant for production of title deeds, if it extend to 
 documents not noticed in the conveyance, should, as a 
 o-eneral rule, be entered into by a separate deed : the ques- 
 tion, however, to be considered is, whether any document 
 covenanted to be produced is of such a character as to make 
 it desirable that it should, so soon as practicable, be taken 
 off the title (/i). 
 
 Purchaser's 
 right to. 
 
 As a general rule, a purchaser is entitled to a valid 
 covenant for the production, and probably for the right to 
 take copies (i), of such documents of title are not delivered 
 over to him (k) : commencing with such as are necessary to 
 show a marketable title (l), and excepting such copies of 
 court roll and inrolled deeds (if inrolled under any Act 
 which makes the inrolment evidence) as are not in the pos- 
 session or power of the vendor {'iii). The want of such a 
 covenant was, until recently, a ground of objection to the 
 
 {-/) Osborne V. Eales, 12 W. R. 654; 
 a case in the Privy CouncU. 
 
 (h) A separate deed of covenant is 
 chargeable with the same duty as the 
 conveyance or mortgage, if not ex- 
 ceeding ten shillings, and in other 
 cases with a duty of ten shillings ; 
 33 & 31 Vict. c. y?, schcd. ; and see 
 
 also 13 & 11 Vict. c. 97. 
 
 (i) Sug. 452. 
 
 (k) Barclay v. Raine, 1 Sim. & St. 
 449. 
 
 (/) Dare v. Tucker, 6 Ves. 460 ; 
 Cooper V. Emery, 1 Ph. 388. 
 
 {m) tS. C.
 
 PREPARATION OF CONVEYANCE. 555 
 
 title ; but now, under the 37 & 38 Vict. c. 78, if the vendor Chap. XII. 
 
 Sect. 5. 
 
 is unable to furnish such a covenant, the purchaser must, 
 subject to the stipulations of his contract, be satisfied with 
 merely his equitable right to their production (??). 
 
 The covenant upon a sale of freeholds held of a manor 
 subject to leases for lives granted by copy of court roll, must 
 extend to the court rolls up to the date of the conveyance (o). 
 In the absence of agreement, the purchaser is not bound (p) 
 (except upon a sale of a bankrupt's estate {(/),) to assent to 
 the introduction of the ordinary proviso for determining the Proviso for 
 vendor's liability upon his selling the residue of the pro- the liability, 
 perty, and procuring, without expense to the parties entitled 
 to the benefit of the covenant, a substituted covenant to be 
 entered into by the person who will upon such sale become 
 the holder of the deeds. The proviso when inserted should 
 provide for the actual delivery of the substituted deed of 
 covenant to the purchaser or his representatives ; and when 
 properly framed is rather beneficial than otherwise to the 
 purchaser, as it enables him to trace the devolution of the 
 title deeds (r). 
 
 On a sale by fiduciary vendors, who retain the title deeds. On sale by 
 it is usual to insert a proviso for a substituted covenant, or vendors 
 one expressly limiting their liability under the covenant to 
 the time during which the deeds are in their actual cus- 
 tody (s). The insertion of such a proviso or qualified cove- 
 nant should always be stipulated for on their behalf 
 
 The right to a covenant for production is, however, as a To what docu- 
 general rule, confined to those documents which affirmatively "x^ends. 
 
 (n) See sect. 2. It is conceived rally, that the assignees' covenant 
 
 that this section only applies to a ca^e should be confined to the time of their 
 
 of absolute inability, not to a case of continuance as assignees, 
 mere difficulty or inconvenience. (r) See Dav. Con v. vol. ii. p. 542, 
 
 (o) Earl Poulett v. Hood, L. R. 5 3rd edit. 
 Eq. 330. (s) For form of sucli a qualified 
 
 (p) Sug. 4.52. covenant, see Dav. Con v. vol. ii. 
 
 (q) Ex pm-te Stuart, 2 Rose, 215, p. 544, 3rd edit. 
 L. C, where the Cuiu't stated, gene-
 
 5oG 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 Sect. 5. 
 
 evidence the vendor's title (t), and does not extend to those 
 not in his possession, and wliich are required to negative 
 mere possibilities. It appears, in fact, to have been decided 
 by Shadwell, V.-C. (it), that a purchaser from an heir-at-law, 
 whose ancestor left a will not affecting the pi'operty, can 
 require no covenant for its production : this decision seems, 
 however, to conflict in principle with that in a case (x) 
 where a purchaser from an heir under similar circumstances, 
 was, upon selling again, held bound to produce the will, if 
 in existence, for the inspection of the sub-purchasers ; and 
 Lord St. Leonards seems to think that where the negative 
 evidence is necessary for the satisfaction of the purchaser, 
 and is in the custody of the seller, there is no sufficient 
 reason why it should not be covenanted to be produced (v/) : 
 and this seems to be the sounder view. 
 
 As to cove- 
 nants for 
 production 
 running with 
 the land. 
 
 In order that the covenants for production may run with 
 the land in respect of which the deeds are retained, it is 
 necessary that the covenantor should be seised of the legal 
 estate in such land (0) : this, however, is a point not often 
 attended to ; and if a purchaser has a right to insist upon it, 
 such right would seem to involve the additional right of 
 requiring the title to such other land : a purchaser, it is 
 conceived, could not be advised to press the point : and it is 
 generally disregarded in practice. Where the covenant for 
 production does not run with the land, the title will not be 
 considered unmarketable, and production may be enforced 
 in Eijuity («). 
 
 The vendor's covenants, if the estate be freehold, should 
 be entered into with the grantee, relessee, or feoffee to uses 
 (if any). If the estate be copyhold, it appears to be the 
 
 (t) Inchiding of course deeds of 
 covenant for production entered into 
 by prior vendor ; Sug. 452. 
 
 (ii) Cooper V. Emery, cited in Hayes 
 on Couv. 573, 3rd ed. 
 
 {x) Stevens V. Gappy, 2 Siui. & St. 
 43D. 
 
 (y) Sug. 452. 
 
 (r) Sug. 453 ; even then the result 
 is not free from doubt ; vide infra, 
 Ch. XIV. 
 
 (ft) See fuither as to thi.s, Sug. 
 453, note; and see now 37 & 38 Vict, 
 c. 78, sect. 2.
 
 PREPARATION OF CONVEY AXfE. -J-X 
 
 preferable practice, instead of takino- a covenant to surrender Chap. Xli. 
 
 Sect. 5. 
 with covenants for title and production in the same deed, to 
 
 let the surrender precede the execution of the deed con- 
 taining the covenant for title and production: as, if the 
 former course be adopted, it is not clear that the benefit of 
 the covenants will run with the land (h). This, however, is 
 often inconvenient, and therefore disregarded. Where the 
 property is conveyed to joint tenants, the covenants should 
 be with them jointly. 
 
 On the other hand, the vendor may, in certain cases, Purchaser's 
 
 . 1 1 • 1 covenants 
 
 require covenants on his own account : tor it may be laid ,^-ith vendor. 
 down, as a general rule, that whenever he is personally 
 subject to liabilities, either in respect of the estate, or for 
 the performance of which the estate stands as a security, 
 the purchaser, taking the estate, must undertake the liabili- 
 ties, and covenant to indemnify the vendor against them. 
 
 For instance, on the sale of an equity of redemption the On pirchaj-e 
 
 . / . of equity of 
 
 purchaser, even in the absence of express stipulation, incurs redemption, 
 a liability to pay the mortgage debt and future interest (e) : 
 and may, it is conceived, be required to covenant so to do. 
 
 So, on the sale of a reversion, the purchaser, it is con- or » reversion, 
 ceived (d), must covenant to pay the succession duty, unless 
 compounded for (e) at the time of the sale. 
 
 So, on the sale of leaseholds, either by the original lessee '^•- leaReholds. 
 or by an assignee who has entered into a similar covenant 
 with a prior owner, the purchaser must covenant (/) to pay 
 the rent and perform the covenants contained in the lease, 
 
 (b) Dav. Conv. vol. i. pp. Ill, 112 ; (/) The usual words in the ha- 
 9 Jarm. Conv. by S. 188. bendum, "subject to the payment of 
 
 (c) Warin;/ v. Ward, 7 Ves. 332, the rent and performance of the co- 
 337. venants, " have been held not to be 
 
 (c/) Vide hifni, Ch. XIIT., s. 2. equivalent to such a covenant by the 
 
 {e) See IG & 17 Vict. c. f.l, sa. 41, assignee, Wolrerid;/e v. Steward, 1 
 44. Cro. & M. 644.
 
 558 
 
 PREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 Sect- 5. 
 
 and to indemnify the vendor against the same (g) : so, on a 
 sale of leaseholds in lots by way of underlease, each pur- 
 chaser must covenant to perform the covenants contained in 
 the original lease so far as the same relate to the property 
 comprised in his own underlease (h). 
 
 But no indem- Upon the Sale of a bankrupt's leasehold by his assignees 
 ch^er rai s^ale ^^^^^er the old law, no indemnity was needed, either by the 
 of bankrupt's assignees or the bankrupt : for the assig-nees were under no 
 
 leaseholds. ^ ^ . *=> 
 
 liability after they had assigned ; and the bankrupt was by 
 the Statute released from liability upon the assignees taking 
 to the lease (i). But it has been said that if the bankrupt 
 were assignee of the lease, and not lessee, the Statute did 
 not discharge him from his obligation to indemnify the prior 
 owner (k). 
 
 Under the 
 Act of 1869. 
 
 On sale of 
 leaseholds by 
 executors, &c. 
 
 Under the present law the bankrupt "will, it is conceived, 
 continue liable on his covenants in the lease, until his 
 trustee has either sold or taken to the lease by some act of 
 intentional acceptance, or has disclaimed or lost his right to 
 disclaim (I). The exercise of acts of ownership by the 
 trustee, as entering into possession or attempting to sell, is 
 no longer to be deemed an acceptance of the lease, so as to 
 destroy the right to disclaim within the time limited by the 
 Act. The effect of disclaimer is not to revest the property 
 in the bankrupt, but to vest it in the person entitled on the 
 determination of his estate and interest: and any injury 
 occasioned by the disclaimer is to be deemed a debt prove- 
 able under the bankruptcy (m). 
 
 Where an executor or administrator has satisfied all the 
 
 (ff) Pemher v. Mathers, 1 Bro. C. C. 
 52, 54 ; Staines v. Morris, 1 V. & B. 
 8 ; and see Close v. Wilherforce, 1 
 Beav. 112 ; Cochrane v. Rohinson, 
 11 Sim. 378 ; and see Morley v. Cla- 
 vering, 7 Jur. N. S. 904. As to what 
 can be recovered in an action on the 
 covenant, see Smith v. Howell, 6Exch. 
 730. 
 
 (h) Browne v. Paul, 26 L. T. 232, 
 V.-C. K. ; 2 Jur. N. S. 317. 
 
 (i) See Wilklns v. Frij, 1 Mer. 244, 
 263, and Bankrupt L. C. Act, 1849, 
 s. 145. 
 
 (k) See Ma2)les v. Pepper, 18 C. B. 
 177 ; sed qucere. 
 
 (l) As to the leave of the court 
 being necessary to such a disclaimer, 
 In re Wilson, L. R. 13 Eq. 186 ; 
 Ejc parte Levering, L. R. 9 Ch. Ap, 
 586 ; and ride supra, p. 84. 
 
 (m) See 32 & 3:5 Vict. c. 71, s. 23.
 
 PREPARATION OF CONVEYANCE. 559 
 
 liabilities of a lease granted or assigned to his testator or Chap. xil. 
 
 , , Sect. 5. 
 
 intestate, and has assigned the lease to a purchaser, he may 
 
 now safely distribute the residuary estate, and, after such 
 assignment, is no longer personally liable in respect of any 
 subsequent claim under the lease (n) ; but the lessor may 
 follow the assets into the hands of the persons among 
 whom they have been distributed. On a sale by executors 
 or admistrators it is still usual to indemnify them, as well 
 as the estate of the deceased, from all future liabiUty in 
 respect of the rent and covenants of the lease. 
 
 Independently of contract, the legal or equitable assignee Indemnity by 
 
 . 11- I'll,-* assignee o£ 
 
 of a lease is, as respects the time only during which he is in lease, 
 possession, bound to indemnify the lessee against liabilities 
 under the lease (o) ; and it has been held that where the 
 equitable assignee has actually parted with the possession 
 he is no longer liable to be sued by the landlord for breaches 
 of covenant, or non-payment of rent, during the period of 
 his possession (p). 
 
 The rule that a purchaser must undertake his vendor's or freeholds 
 liabilities would, it is conceived, apply to the sale of freehold quit-rent, or 
 land subject to quit-rent which the vendor has entered into ^^'upon which 
 a personal liability to pay. So, where in Moxhay v. Inder- vendor is 
 ^vick (q), a vendor of freeholds had, on his own purchase, 
 covenanted to observe the covenants entered into by a former 
 owner, which prohibited building upon the land, it was held 
 that a purchaser who bought with notice (r) of the restric- 
 tion, and filed a bill for specific performance must elect, 
 either to rescind the contract, or to enter into a similar 
 covenant with the vendor: and a like decision was pro- 
 nounced in a later case of Luker/ v. Higgs («), where the bill 
 
 («) 22 & 23 Vict. c. 35, s. 27 ; and Beale v. Sanders, 3 Bing. N. C. 850. 
 see sect. 28. ip) Cox v. Bis/u>p, 8 De G. M. & G. 
 
 (o) Burnett v. Li/nch, 5 B. & C. 815; see and consider Wrhjht v. Pitt, 
 
 589, 602 ; Close v. Wilberforce, 1 Beav. Ti. R. 12 Eq. 408. 
 112 ; Sanders v. Benson, i Beav. 350; (<?) 1 De (i. & S. 708. 
 
 Moore v. Gre<j, 2 Ph. 1\1 ; Rowley {)•) From the printed particulars. 
 
 V. Adami, 4 Myl. & Cr. 534 ; and see (.s") 1 Jur. N. S. 20ii, V.-C. K.
 
 560 PREPARATION OF CONVEYANCE. 
 
 Chap. XTI. was filod by the vendor, but the purchaser liad bouo-ht with- 
 
 Sect. 5. ^ ,■ . ,, . . \ 
 out notice oi the original covenant. 
 
 Inderu'ick Moxhiy V. IndevvAch was a suit l)y a puvcltamr, who 
 
 and Luhey v. bouo;ht with full notice of the orioiiial covenant, but had not 
 
 Ihygs con- ^ ° 
 
 sidereil. exprcssly agreed to enter into a special covenant with the 
 
 vendor. The Court, in giving judgment, reserved the ques- 
 tion as to what the rights of the parties would have been in 
 respect to the insertion of the special covenant had the 
 vendor been the party insisting on specific performance : it 
 merely decided upon the case as it then stood, that the pur- 
 chaser claiming the estate must enter into the covenant. In 
 Lukey v. Higgf^, a vendor's suit, the purchaser bought with- 
 out notice of the original covenant : and the Court, having 
 determined that he had waived this objection to the title 
 only upon condition that he should not be required to enter 
 into any special covenant, necessarily also held that, as this 
 condition was resisted, he had a right to elect either to 
 covenant or to rescind the contract. But the Court also is 
 represented to have used expressions intimating that Moxhay 
 V. Tndervjick is an authority for holding that a vendor as 
 plaintiff cannot insist on the insertion of such a covenant, 
 even as against a purchaser who buys with notice. This 
 point seems to be, in fact, untouched by Moxhay v. Inder- 
 vAck, as reported ; and the conclusion pointed at by the 
 Court in Lukey v. Higgs, seems open to considerable doubt. 
 A. and B. enter into a contract for sale and purchase which 
 clearly discloses the existence of the original liability : it is 
 conceded that upon a bill filed by B., the Court will hold 
 that the proper instrument for carrying out this contract is 
 a conveyance containing a certain special covenant by B., — 
 the propriety of inserting such covenant depending not upon 
 any matter dehors the contract, but upon matter disclosed 
 by the very contract itself Upon what principle can it be- 
 held that the terms of the instrument which is intended to 
 define the rights and liabilities of the parties, as arising 
 under the contract, ought to depend upon the accident of its 
 being one party rather than the other who seeks to enforce
 
 PREPARATION OF CONVEYANCE. 5G1 
 
 its performance? Reasons may sometimes be supposed to Chap. XII. 
 exist why a contract bet^Yeen A. and B. should be enforced . ' 
 
 at the suit of A., but not of B. ; but it is difficult to find any 
 satisfactory reason for holding, that the contract — admitting 
 that it is to be enforced — is to mean one thing if enforced at 
 the suit of A., and something else if enforced at the suit of B. 
 
 Upon similar principles, when the vendor has covenanted ^"^' pi'O'luc- 
 With a former purchaser for the production of the deeds, a 
 purchaser of the residue of the estate, if he take the deeds, 
 must covenant for their production to the first purchaser (f), 
 or indemnify the vendor against his liability to produce 
 them. 
 
 Where land is conveyed to releasees to uses in strict On sale by- 
 settlement, they are not, under a condition that the pur- settled 
 chasers shall take the deeds and " enter into or procure to ^'*'^'^*^^- 
 be entered into a proper and sufficient covenant for their 
 production," bound personally to enter into such a covenant; 
 but it is sufficient if they procure the tenant for life so to 
 covenant (?'.). 
 
 Where the contract for sale provided that the conveyance Agreement 
 
 should be made subject to certain specified stipulations as to landTn "pecl- 
 
 the mode of buildino- upon the land, and also to " a covenant f^"-''! "'-'"'"ei-— 
 
 on the part of the purchaser, his heirs and assigns, and of, how u> be 
 
 . secuifd in 
 
 proper provisions for securing the due observance and con\eyance. 
 performance thereof," it was held that the conveyance 
 should contain, not only the covenant, but also a power for 
 the vendor or his representatives to enter and remove any 
 buildings erected in breach of such covenant, and to retain 
 possession until payment of the consequent expenses; but 
 that he was not entitled to have a term for years, or a rent- 
 charge, limited to a trustee by way of security for the 
 performance of the covenant (.r). 
 
 (0 vide Infra, Ch. XIII. s. 7. (^) Ex parte Ralph, 1 Be G. 219 ; 
 
 (/<) Onshno v. Lord Londcshoroiif/Ji, see the form given, \>. 228. It seems 
 
 10 Ha. C7. to malce no provis'on for interest. 
 VOL. I, o o
 
 562 
 
 PREPARATION OF CONVEYANCE. 
 
 Under an agreement to purchase the minerals under a 
 given surface, the price to Ijc payahle by instahucnts, and the 
 payments to be accelerated if more than a given quantity of 
 minerals be gotten from time to time, the vendor is entitled 
 to a covenant in the conveyance, reserving to him a right of 
 entry for the purpose of ascertaining the state of the work- 
 ings Oj). 
 
 Purchaser in Under an agreement to piu'chase land in consideration of 
 Tannu'S^'' a life annuity, " to be charged on the land," the vendor is 
 covenants for entitled to, uot ouly the charge, but also the purchaser's 
 covenant for payment (z). 
 
 Chap. XII. 
 Sect. 5. 
 
 "Vendor of 
 minerals 
 entitled to 
 power to enter 
 and ascertain 
 state of 
 workinjjs. 
 
 payment. 
 
 Pm'chaser, 
 when bound 
 in Equity by 
 covenants, 
 although he do 
 not execute. 
 
 The word 
 '■ give " or 
 "grant" not 
 to imply a 
 covenant. 
 
 And a purchaser who accepts the benefit of the convey- 
 ance, will be bound in Equity by the covenants on his part 
 therein contained, although he do not execute it (a) : but 
 provisions restrictive of a purchaser's _2?'"^''''i<^ facie rights 
 will not be strained against him (J)). 
 
 Lastly, we may remark, that under the 8 & 9 Yict. c. lOG, 
 s. 4, the word " give " or the word " grant " in any deed exe- 
 cuted after the 1st October, 184.5, is not to imply any cove- 
 nant at Law, in respect of any tenements or hereditaments, 
 except so far as it may do so by force of any act of parlia- 
 ment (c). The object of this enactment appears to have been 
 to prevent any general warranty of title fi'om arising by the 
 use of the words " give " and " grant ;" and it probably would 
 not be held to interfere with the rule of Law that any words 
 of assurance operate as a covenant for quiet enjoyment of the 
 interest expressed to be assured as against the future acts of 
 the party making the assurance (d). Under the 6 Anne, 
 c. 35, ss. 30 and 34, and 8 Geo. II. c. 6, s. 35, the words 
 
 (y) Blalcesleij v. Wldddon, 1 Ha. 
 176. 
 
 (■) Bower v. Cooper, 2 Ha. 408 ; 
 Reminfjtonv. Deverall, 2 Anst. 550 ; 
 JDlxon V. Gayfcre, 17 Beav. 421, 21 
 Beav. 118 ; 1 De G. & Jo. 655. 
 
 («) Wlllson V. Leonard, 3 Beav. 373. 
 
 {h) Warden, ^e. of Dover v. South 
 Sus(ern Kuilmnj Co., 9 Ha. 439. 
 
 (o) But it may amount to a cove- 
 nant to stand seised ; JDoe v. Prince, 
 15 Jm-. 632, C. B. ; 20 L. J. 223. As 
 to such words not amounting to a 
 personal covenant when used in the 
 grant of a rent-charge, see Monypenvy 
 V. Monypcnny, 4 Jur. N. S. 873. 
 
 ('/) See, as to the word "assign," 
 Scddon V. Senate. 10 East, 74.
 
 PREPARATION OF CONVEYANCE. 
 
 )G3 
 
 " OTant, bargain and sell " in bargains and sales of lieredita- Chap. xii. 
 
 Sect. 5« 
 
 ments in Yorkshire, inroUed according to those Acts, have . 
 
 the efiect of the usual covenants for title in favour of a pur- 
 chaser (c), and this of course falls within the exception in the 
 8 & [) Vict. c. lOO. iSo in a conveyance under the Lands 
 Clauses Consolidation Act, 1845 (f), by the promoters of the 
 undertaking, the word " grant " is to operate as covenants for 
 title, unless limited by express words contained in the con- 
 veyance ; so, in a conveyance by a public company under the 
 Joint Stock Companies Act (g), the ordinary covenants for 
 title ViYo to be implied, unless such implication is expressly 
 negatived. 
 
 The word " demise " in a lease for years still operates as an The worcl 
 
 . . . , . . demise 
 
 implied covenant for title, but this implication is negatived if implies a co\e 
 
 . . , , T f , T 1 • 1 1 iiaut foi- title. 
 
 an express covenant is niserted. If the lease is by parol, a 
 covenant for quiet enjoyment, but not a covenant for title, 
 is implied. 
 
 Where a deed contained a recital of an agreement to secure r;ovenants 
 
 implied, 
 
 an annuity, and the grantor, after granting the annuity, cove- when. 
 nanted that the grantee should have the usual powers of 
 entry and distress, and then granted and demised the estate 
 charged therewith for a term of years upon trusts for securing 
 the annuity, but did not expressly covenant for its payment, 
 it was held by V.-C. Wood, and Barons Bramwell and Watson, 
 who assisted him (A), that neither the recital nor the grant 
 and power of distress, Avhether taken singly or collectively, 
 amounted to a covenant, so as to create a debt payable out 
 of the personal assets of the grantor ; but this decision was 
 reversed by the Court of Appeal in Chancery, and the decision 
 of the Appellate Court was affirmed by the House of Lords, 
 dissent iente Lord St. Leonards (i). So a mere recital, though 
 it does not necessarily imply a covenant, may be sufficient to 
 raise one, if such is the clear intention of the parties (/•) ; so, 
 
 (c) See Burt. Comp. 593. (0 Monypmnjf v. Monypcnny, 3 Do 
 
 (/) 8 & 9 Vict. c. 18, s. 132. G. & Jo. 572 ; 9 H. L. Ca. 114, 135. 
 
 {<j) 19 & 20 Vict c. 47, s. 4'J. {lA Scj Icen v. EUm, 3 Drew. 25, 
 
 (/(,) 4 K. & Jo. 174. 3G, and cases there cited. 
 
 2
 
 )G4 
 
 PREPARATION OF CONVFA'ANCE. 
 
 Chap. XII, on the assignment of a debt, there is an implied covenant by 
 
 '.- ' - ■ the assignee that he will- not release or compound it (/). 
 
 Section G. 
 
 As to the draf b 
 and engross- 
 ment. 
 
 (().) As to t/tc draft and cnrjivssment. 
 
 The draft having been settled, a fair copy of it sliould be 
 submitted to the vendor's advisers for perusal; and, if 
 practicable, within a reasonable time prior to the date lixed 
 for completion. The date of delivery is sometimes fixed by 
 the conditions. 
 
 As to the 
 perusal of 
 drafts. 
 
 It may possibly be useful to make some remarks as to 
 what are, in the opinion of the Avriter, the duties of counsel 
 (and the observations apj)ly eijually to solicitors) in perusing 
 a draft drawn or settled by another practitioner; a point upon 
 which, according to his observation, much misapprehen- 
 sion prevails among many members of the profession. These 
 duties are, merely and exclusively to protect the interests of 
 the client on v.diose behalf such counsel is consulted. He is, 
 therefore, not justified in altering the structure or language 
 of a draft merely because such structure or language is not 
 such as he would himself have adoj^ted, or approved of, if he 
 had been advising on the other side. When such a course is 
 adopted in respect to a draft settled by another practitioner 
 of equal or greater standing or reputation in the profession, 
 the proceeding is an imj^ertinence : and when adopted in 
 respect of a draft settled by a junior, it may frequently be, 
 not merely an impertinence, but also a cruelty ; as amounting 
 to an implied professional censure by one wdiose censure 
 may be prejudicial. Sometimes, of course, in the case of a 
 very obvious slip, it may be allowable and proper to direct 
 attention to it ; but even then it is better, as a general rule, 
 to do so by a marginal note ; and not to undertake officiously 
 to alter another man's draft upon points Avith which the 
 critic's own client has no concern. And, on the other hand, 
 Vvdicn the above rules have been violated by an opponent, 
 it is usually better to allow his alterations to pass — with or 
 
 {I) Gerard v. Lewis, L. E. 2 C. P. 305.
 
 PREPARATION OF CONVEYANCE, 5C5 
 
 without marginal coniiuent — if they are not really preju- Chap. XII. 
 
 Sect. 6. 
 dicial, but are merely officious, rather than to insist upon 
 
 the draft being restored to its original shape. Doubtless it 
 is very annoying to be seemingly instructed in conveyancing 
 by another practitioner ; but where such discipline can only 
 be rejected at the client's expense, it should, as a general 
 rule, be submitted to ; unless a regard to the client's own 
 interests calls for its rejection, or unless it involves altera- 
 tions seriously inconsistent with the ordinary rules of con- 
 veyancing. 
 
 When the draft has been approved, any alteration made Alterations in 
 in it should be communicated to the other party before be'communi- 
 engrossment (ryi). Where the alterations merely consist in *^''^*'^'-'- 
 omissions of passages introduced by such other party, or 
 can otherwise be easily pointed out, it is submitted, that the 
 opposite solicitor (who must be presumed to have retained a 
 copy of the draft) would not be entitled to a general re- 
 perusal : this is a (Question vdiich sometimes arises in those 
 exceptive cases where the purchaser has to pa,y the vendor's 
 expenses. The draft, it may be remarked, belongs to the 
 purchaser, not to his solicitor (n). 
 
 The engrossment is made by and at the expense of the En-ro.ss- 
 purchaser : the ordinary practice as to the jDOsition of the ~ 
 
 indorsed receipt and attestation clauses, should be adhered 
 to ; as a departure therefrom may give rise to questions 
 with future purchasers (o). The practice, now frequently 
 adopted, of engrossing a deed bookways, has much to 
 recommend it ; and it is a convenient plan to make up with 
 the engrossment some blank pages at the end, for the 
 purpose of containing supplemental instruments, Avhich may 
 refer to the princi})al deed in tlie same way, mutatis 
 mutandis, as if they were endorsed on it. 
 
 The engrossment is the property of the purchaser : when iieidngs to 
 
 purchaser, 
 (m) 1 V. & B. 15. 178. 
 
 (n) Ex xiartc Ilon^fnU, 7 B. & 0. (o) KainaJij v. Gncn, 3 Mjl. & K. 
 
 528 ; Doe v. Scaton, 2 Ad. & E. 171, 699.
 
 566 PREPARATION OF CONVEYANCE. 
 
 Chap. Xll. executed the vendor has a lien upon it fur unpaid purchase- 
 __!!^_!__ money (7)), but his solicitor has no lien on it for costs (5). 
 
 Executed, and Where the engrossment was executed by the vendors, but 
 re«ciudja. the purchasc Avent off in consequence of other material 
 
 parties refusing to execute, and the vendors made no claim 
 to it as a deed, the purchaser was held entitled at Law to 
 recover it from their solicitor, they being allowed to cancel 
 it (/■) : this decision, however, as observed by Lord St. 
 Leonards, " depended upon the instrument having been im- 
 perfectly executed, and upon the sellers not interposing to 
 claim any interest in it " (x) : and where the deed has been 
 executed so as to vest the legal estate in the purchaser, 
 there would seem to be a difficulty in holding that he could 
 claim to retain it upon the contract going off, even although 
 he were willing to execute a reconveyance. 
 
 What is gojd No particular form of words or acts is necessary to render 
 delhery of a ^^^ instrument the deed of the party sealing it. The mere 
 affixing of the seal does not make it a deed ; but so soon 
 after sealing as there are acts or words sufficient to show that 
 it is intended by the party to be executed as his deed, pre- 
 sently binding upon him, that is sufficient ; and there is no 
 technical necessity for the grantee or his agent to take cor- 
 poreal possession of the instrument (t). 
 
 Q3) Sug. 564. sale, see Young \. EnrjUsh, 7Beav. 10. 
 
 [q) Oxcnham v. Esdaile,2 Y. & J. (r) Esdailev.Oxenh(m,dB.&C.225. 
 
 493 ; 3 Y. & J. 262. As to deeds (.s) Sug. 564. 
 
 handed over by mortgagee to mort- (t) Per Blackburn, J. See Xenos 
 
 o-aoor's solicitor, in order to effect a v. Wickham, L. K. 2 E. & Ir. Ap. 296. 
 
 The law of fixtures, v.-here the title and personal chattels, incident to the 
 
 to them is distinct from the title to freehold, {Mather v. Frasev, 2 K & J. 
 
 the property in the soil or buildings 536, 559), on being annexed to the 
 
 to which they are annexed, is not freehold acquire a descendiljle charac- 
 
 •vvithin the scope of this treatise, but ter ; {FUhcr v. Dixon, 12 CI. & F. 312), 
 
 in the present state of the authorities and pass by a conveyance of the land, 
 
 as respects the necessity of registration whether tbey are specified or not ; and 
 
 under the Bills of Sales' Act, the fol- the enumeration of specific articles 
 
 \ovnng short review of the law as it does not necessarily raise a presump- 
 
 now stands iipon the subject may not tion that others were not intended to 
 
 be considered out of place. pass {Mather v. Frascr, uhi supra). 
 
 As a general rule, fixtures of every Nor is there any distinction in this 
 
 description, including trade fixtiu-es respect between a mortgage, Avhether
 
 PREPARATION OF CONVEYANCE, 
 
 5G7 
 
 created by a deed or a mere equitable 
 deposit, and an absolute conveyance 
 {Uitchman v. Walton, 4 M. & W. 409, 
 416. Ex 2KiHe Astlury, L. B. 4 Ch. 
 Ap. 630). 
 
 Previously to the Bills of Sales' Act 
 (17 & 18 Vict, c. .36), the sole test of 
 the validity, as against creditors, of a 
 bill of sale of personal chattels was 
 whether it was fraudulent and void 
 under the 13 Eliz., c. 5, or voidable 
 under the reputed ownership clauses 
 of the Bankruptcy Acts. Where, as 
 in the case of an absolute assignment, 
 there was an immediate delivery of 
 the chattels, the property passed at 
 once to the purchaser ; and although 
 on fraud being clearly proved, the sale 
 might be avoided under 13 Eliz., c. 
 5, there was no prima facie presump- 
 tion of fraud (as in Twyne's case, 1 
 Smith's L. C. 1) : but where, as 
 generally happened on a mortgage, 
 the mortgagor retained possession of 
 the chattels, the mortgagee was ex- 
 posed to the risk of having the trans- 
 action impeached iinder the 13 Eliz., 
 c. .5, and (if the mortgagor being a 
 trader became liankrupt), Tmder the 
 reputed ownership clauses of the Bank- 
 ruptcy Acts, 12 & 13 Vic.,c. 106, sec. 
 125, 32 & 33 Vic, c. 71, sec. 14, sub 
 sect. 5. 
 
 To these risks the Bills of Sales' 
 Act added that of the avoidance of 
 the security as against the trustee in 
 bankniptcy and the execution creditor 
 of the mortgagor (but not as against 
 a pTiisnc incumbrancer, Meiix v. Jacobs, 
 H. L., 25 March, 1875), if the Bill of 
 Sale is not, within twenty-one days 
 after execution, registered in manner 
 prescribed by the Act ; which regis- 
 tration nuist be renewed evei'y five 
 years (29 & 30 Vict., c. 96, s. 4). 
 
 It had been repeatedly held that a 
 mortgage of land and buildings with 
 trade or tenant fixtures annexed, does 
 not requii'e registration under the Act; 
 although, as between landlord and 
 tenant, such fixtm-es would be remov- 
 able l)y the latter ut the end of his 
 
 tenancy (Mather v. Fraser, 2 K. & J. 
 536 ; Ciiiiiic v. Wood, a case in the 
 Exchequer Chamber, L, K, 4, Exch. 
 328 ; Low/hottom v. 5m-y, L. R. 5, Q. 
 
 B. 123 ; Holland v. Ilodrjson, L. E. 7, 
 
 C. P. 328 ; ex parte Assthary, L. E. 4, 
 Ch. App. 630, a case of equitable 
 mortgage by deposit) ; nor until quite 
 recently was any distinction either 
 drawn l:)y the Courts of Law or Equity, 
 or recogiiized in practice, as respects 
 the non-liability to registration, be- 
 tween a mortgage of freeholds or 
 copyholds and a mortgage of lease- 
 holds, comprising trade or tenant's 
 fixtures. Thus in a leading case of 
 Buijd v. Shorrocl; L. II. 5, Eq. 73, 
 where a leasehold mill and the machi- 
 neiy, \nth which the lessee had stocked 
 it, were assig-ned together by way of 
 mortgage, V.-C. Wood held the machi- 
 nery passed as fixtures, and that regis- 
 tration of the deed was not necessary 
 (see too Turner v. Cameron, L. R. 5, Q. 
 B. 307 ; Cidlwiclc v. SKimUll, L. R. 3, 
 Eq. 249). An owner of leaseholds 
 was thus enal>led, the same as the 
 owner of freeholds or copyholds, to 
 avail himself of the full value of his 
 property as increased by his fixed 
 plant and machinery, without the 
 puljlicity of registration and the con- 
 sequent diminution of his credit. But 
 in the recent case of Ilaivtretf v. Butlin, 
 L. R. 8, Q. B. 290, where a lessee for 
 years? mortgaged his leasehold factory 
 by way of underlease, and his fixed 
 machinery in it by assignment, the 
 Court of (Queen's Bench, following a 
 decision of V.-C. ^Malins in Bc<jhic v. 
 Fenwirk, 24 L. J, N. S. 58, and dis- 
 approving Bo)/d V. Shorrocl-, held that, 
 qua the tenant's fixtures, the deed re- 
 quired registration under the Act. In 
 l)oth these cases the fixtures were as- 
 signed Ijy a witnessing part of the deed 
 distinct from tliat whicli dealt with the 
 land and buildings to which they were 
 attached ; but this circumstance does 
 not seem to have been relied on as 
 shewing an intention on the part of 
 the mortgagor to treat them as mere 
 
 Chap. XII. 
 Sect. 6.
 
 568 
 
 TREPARATION OF CONVEYANCE. 
 
 Chap. XII. 
 Sect. 6. 
 
 personal chattels, and not as fi.\tures 
 passing with the land. So in a" still 
 later case of ex 'parte Bar/ltsJi, L. R. 
 8, Ch. App. 1072, where there was 
 a demise and assignment liy the 
 same witnessing part of a leasehold 
 cotton-mill with fixed and movable 
 machinery, as to the leaseholds and 
 fixed machinery for a long term of 
 years less a nominal reversion, and as 
 to the movable machinery absolutely, 
 and with power for the mortgagor to 
 sell the fixed and movable machinery 
 either with the mill or separately, it 
 was held that the deed quoad the trade 
 fixtures required registration, on the 
 ground that it authorized the mort- 
 gagee to deal with them separately 
 from the buildings. On the other 
 hand, in a later case of ex parte Bar- 
 clay, L. 11. 9, Ch. App. 576, where 
 there v/as a mortgage by demise of a 
 leasehold public house and cottages, 
 including all tenant's fixtures, with 
 power for the mortgagee to sell in case 
 of default, it was held that the deed 
 did not requii-e registration, qua. the 
 tenant's fixtures ; inasmuch as, accord- 
 ing to that construction which the 
 Court put upon the power of sale, it 
 did not empower the mortgagee to sell 
 the fixtures separately from the build- 
 ings. It may be doubted whether the 
 language of the power of sale, in re 
 Barclay, justified the construction 
 which the Court put upon it ; but 
 assuming the Court to have been riglit 
 upon the question of construction, it 
 seems to the -wTiter that there was a 
 substantial, although (to use the lan- 
 guage of L. J. James) a tlun distinction 
 between the case and in re Durjlisli. 
 According, therefore, to the law as 
 interpreted by recent decisions, regis- 
 tration, qua tenant's fixtures, whether 
 they be affixed prior or subsequently 
 to the date of the security {Meux v. 
 Jacobs, supra), is unnecessary upon a 
 mortgage of freeholds, or copyholds, or 
 even of leaseholds, unless it appears, 
 on the face of the instrument, that the 
 mortgagee is, as betvreen himself and 
 
 the mortgagor to be at liberty to 
 sever the fixtures : in which case regis- 
 tration is necessary quel the tenant's 
 fixtures. These distinctions have not 
 been universally approved of in the 
 profession : and a bill for an Act 
 amending the law upon the subject 
 has been introduced in the present 
 Session of Parliament ; but which, 
 should it pass into law in its present 
 shape, seems calculated to add to rather 
 than diminish the existing dissatisfac- 
 tion ; the true remedy for which it is 
 submitted would be to restoi-e the law 
 as it was understood to be before it 
 was disturbed by the recent decisions 
 in Ilaictry v. Butlin and ex parte Baa- 
 lish : that is, the Act should be con- 
 sidered to apply only to mortgages of 
 personal chattels, or of fixtures apart 
 from the land or buildings, whether 
 of freehold, copyhold, or leasehold 
 tenure, to which they are annexed. 
 
 We may observe that registration 
 under the Act gives no protection 
 against the reputed ownership clauses 
 in the Banlcruptcy Act. Bacbjer v. 
 . Shaw, 29 L. J. Q. B. 73 ; Stansfidd 
 V. CuUtt, 2 De G. & J. 222, re Banicl 
 ex parte Aslihy, 25 L. T. 124, re Ar- 
 thur O'Connor, 27 L. T. 27. 
 
 As to the substitution of a fresh 
 bill of sale within the 21 days, so as 
 to avoid the necessity of re-registra- 
 tion, see Smale v. Burr, L. E. 8 C. P. 
 64 ; Banisdenv. Lupton,!^. R. 9 Q. B 
 17. As to what is a sufficient, and 
 not a mere formal, taking of posses- 
 sion under the Act, see ex parte Lewis 
 re Henderson, L. E. 6 Ch. App. 626, 
 and cases there cited. As to the 
 necessity for registering an agi-eement 
 to give a bill of sale, if relied on as 
 an equitable assignment of the chat- 
 tels, see ex parte Maclay, L. E. 8 
 Ch. App. 643, 648 ; ex parte Conninj, 
 L. R. 16 Eq. 414 : see, however, Ex 
 parte Uoman, L. R. 12 Eq, 59S. The 
 liquidation of a jjublic company is 
 not bankruptcy within the meaning 
 of the Act. In re Marine Mansions 
 Company, L. R. 4 Eq. 601,
 
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 action in the several divisions of the High Court of Justice."— Ztw Tivies. 
 Peel. — Vide " Chancery." 
 
 Prentice's Proceedings in an Action in the 
 Queen's Bench, Common Pleas, and Exche- 
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 By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel. 
 Royal 12mo. 1877. 10s. 6d. 
 
 "The book can be safely lecommended to students and practitioners" — lato Times. 
 Smith's Action. — Vide "Foulkes." 
 ADM IRALTY-Boyd.— Fide " Shipping." 
 
 Pritchard's Admiralty Digest.— With Notes from 
 Text Writers, and the Scotch, Irish, and American Keporta. 
 Second Edition. By ROBERT A. PRITCHARD, D.C.L., 
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 Notes of Cases from French Maritime Law. By ALGERNON 
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 8vo. 1865. 3L 
 
 Roscoe's Treatise on the Jurisdiction and 
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 High Court of Justice, and on Appeals there- 
 from, &C. With an Appendix containing Statutes, Rules as to 
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 By EDWARD STANLEY ROSCOE, Esq., Barrister-at-Law, and 
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 [No. 2.] A
 
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 AGENCY.— Petgrave's Principal and Agent.— A Manual 
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 Petgrave's Code of the Law of Principal and 
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 Cooke on Agricultural La^A^.— The Law and Practice 
 
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 " Mr. Butlin devotes entire cbajiters to the consideration of Williams on Real Property, 
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 be read during Articles. Second Edition. By J. S. RUBINSTEIN 
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 ATTORNEYS.-Cordery.-FJrfe "Solicitors." 
 
 PuUinq's Law of Attorneys, General and Special, 
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 ScriveiJrs, Land Agents, House Agents &°-'^^^\*^l,^.^'=Ta^,.^?^ 
 Appointments usuaUy held by them &c. By ALEXANDER 
 PULLING, Serjeant-at-Law. Third Edition. 8vo. 1862. 18s. 
 » It is a laborious work, a careful work, the work of a l^^er and, beyond compariBon, 
 
 the best that has ever been produced upon this subject. -Law 2 imes. 
 
 Smith.-The Lawyer and his Profession.-A 
 
 Series of Letters to a Solicitor commencmg Busmess. By J. 
 
 ORTON SMITH. 12mo. 1860. 4*. 
 
 AVERAGE.-Hopkins' Hand-Book on Average.-Thkd 
 
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 Lowndes' Law of General Average.— Enghsh and 
 ^?oT^ign^Thif Edition. By RICHARD ^^O^NDES Author 
 of " The Admiralty Law of CoUisions at Sea." Royal 8vo. 1878. 21«. 
 BALLOT.-FitzGerald's Ballot Aet.-With an Introductioit 
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 Vlpptions Act 1875 and the Parliamentary Elections (Returning 
 SlTAtt 18\5'S\gERALD A. R FITZGERALD,M A 
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 •"^^^P^Lr wt^ a^^^klrSTn' b'^n^^J law may be guided out of many a dimcdty 
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 BANKRUPTCY.-Bedford's Final ExaminaUon Guide 
 to Bankruptcy.— Third Edition. 12mo. 18/7. bs. 
 
 "Hnvnpc; — Vide " Leading Cases." 
 
 Lynch's Tabular Analysis of Proceedings ni 
 
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 Scott's Costs in Bankruptcy.- Firfe 'Costs. 
 
 Smith's Manual of Bankruptcy.— A Manual relatmg 
 
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 the New Statute Law verbatim, in a consohdated and readable fprm. 
 
 With the Rules, a Copious Index, and a Supplement of Decisions 
 
 By JOSIAII W. SMITH, B.C.L., Q.C. 12mo. 1873. 10s. 
 
 * * The Supplement may be had separately, net, 2s. bet. 
 
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 BANKRUPTCY -Con<«»«ec;. 
 
 "Williams' Law and Practice in Bankruptcy: 
 
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 " 'Williams on Banki-uptcy' is quite satisfactory." — Law Magazine. 
 
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 BAR, GUIDE TO THE. — Shear wood. — FK/e"E.xamination Guides." 
 
 BILLS OF EXCHANGE— Chalmers' Digest of the Law 
 of Bills of Exchange, Promissory Notes, and 
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 Barrister-at-Law. Demy 8vo. 1878. 12s. 6d. 
 
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 "Mr. Chalmers has done wisely in casting his book into its present form, and the 
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 reference on a difficult and important branch of the law, it is most valuable, and it is 
 perfectly plaiu thit no pains have been spared to render it complete in every respecc. 
 The index is copious and well arranged." — Saturday Review. 
 
 " The book is not only well planned, but well executed for the rising genera- 
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 Chitty on Bills of Exchange and Promissory 
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 of County Courts. Demy 8vo. 1878. 11. 8s. 
 
 Eddis' Rule of Ex parte Waring. By A. C. EDDIS, 
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 BILLS OF SALE — Cavanagh.— HcZe "Money Securities." 
 
 Millar's Bills of Sale. — A Treatise on Bills of Sale, with an 
 
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 Precedents, &c. (being the Fourth Edition of Millar and Collier's 
 
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 " The original woik is brought down to date, and the latest cases are referred to and 
 
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 BOOK-KEEPING.— Bedford's Intermediate Examina- 
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 CANAL TRAFFIC ACT.— Lely's Railway and Canal Traf- 
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 CARRIERS. — Brovv^ne on Carriers. — A Treatise on the Law of 
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 Daniell's Chancery Practice. — Sixth Edition, by 
 LEONARD FIELD and EDWARD CLENNELL DUNN, 
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 CHPiNCERY -Coy^tinued. 
 
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 of Appeal. Being the Third Edition of " Daniell's Chancery Forms." 
 By WILLIAM HENRY UPJOHN, Esq., Student and Holt 
 Scholar of Gray's Inn, Exhibitioner in Jurisprudence and Roman 
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 dentship in Jurisprudence, Roman Law and International L.aw 
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 In one thick vol. Demy 8vo. 1879. 2/. 2.s-. 
 
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 and the index to the forms is full and perspicuous."- Solicitors' Journal. 
 
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 Haynes' Chancery Practice.— The Practice of 
 the Chancery Division of the High Court of 
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 of Practitioners and Students. — By JOHN F. 
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 Demy 8vo. 1879. 1^- 5*'- 
 
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 CHALONER W, CHUTE, of Lincoln's Inn, Barnster-at-Law, and 
 late Fellow of Magdalen College, Oxford. In 1 vol. Demy 8vo. 
 
 1876. 1^.-1P«- 
 
 " This edition of Mr. Morgan's treatise must, we believe, be the most popular with the 
 
 profession." — Law Times. ... , .. , •,, . , 
 
 " This new edition will mahitain and enhance the high reputation deservedly gamed 
 
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 Peel's Chancery Actions.— A Concise Treatise 
 
 on the Practice and Procedure in Chancery 
 
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 Barrister-at-Law. Demy 8vo. 1878. 7s. 6d. 
 
 "To Chancery practitioners of both branches the volume will doubtless prove very 
 
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 CIVIL LAW — Bowyer's Commentaries on the Modern 
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 Second Edition. Medium 8vo. 1865. 18s. 
 
 Greene. — Ficic " Roman Law. " 
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 CIVIL LAW— Con<w«ed, 
 
 Mears. — Vide "Roman Law." 
 
 Voet Commentarius ad Pandeetas, Translated 
 
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 By SIR ROLAND KNYVET WILSON, Bart., of Lincoln's Inn, 
 
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 COLLISIONS.— Lowndes' Adnnipalty Law of Collisions 
 
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 COLONIAL LAW. —Clark's Colonial Law.— A Summary of 
 
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 1834. II- 4s. 
 
 COMMENTARIES ON THE LAWS OF ENGLAND.- Bedford.— 
 
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 Bowyer. — Vide "Constitutional liaw.'' 
 
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 COMf^ERCIAL LAW. —Levi's International Commercial 
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 COMMON LAW.— Archbold's Practice of the Queen's 
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 Archibald. — Vide "Judges' Chambers Practice." 
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 Cooke on Inclosures.— With Forms as settled by the 
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 COMPANY LAW.— Finlason's Report of the Case of 
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 Palmer. — Vide " Conveyancing." 
 
 Paliner's Shareholders' and. Directors' Com- 
 panion. — A Manual of every-day Law and Practice for Pro- 
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 CONTINGENT REMAINDERS.— An Epitome of Fearne on 
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 "An acquaintance with Fearne is indispensable to a student who desirea to be 
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 the " Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one 
 of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 
 1875. \l. 18s. 
 
 "At present this is by far the best book upon the Law of Contract possessed by the 
 
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 Contracts"). By STEPHEN MARTIN LEAKE, Barrister-at- 
 
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 By FREDERICK POLLOCK, of Lincoln's Inn, Esq., Banister-at- 
 
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 den and olhei's, said, "The Law^ is ■well put by Mr. Frederick Pollock in his 
 
 very able and learned w^ork on Contracts."— 77i« Times. 
 
 " For the purposes of the student there is no book equal to TNIr. Pollock's."— TAe 
 
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 " He has succeeded in writing a book on Contracts which the working lawyer -snll iiiid 
 as useful for reference as any of its predecessors, and which at the same time will giye 
 the student what he will seek for iu vain elsewhere, a complete rationale of the law. — 
 Law Magazine and Review. 
 
 " We see nothing to qualify in the praise we bestowed on the first edition. The chapters 
 on unlawful and injpossible agi-eements are models of full and clear treatment."— jSoiiciVo;-*" 
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 Smith's La^AT of Contracts.— By the late J. W.SMITH, 
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 VINCENT T. THOMPSON, Esq., Barrister-at-Law. Demy 8vo. 
 
 1878. 1^- Is. 
 
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 tinguishcd qualities ol lucidity, order, and accui-acj as the work before ms."— Solicitors' 
 Journal, December 28, 1878. 
 
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 8 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CONVICTIONS.— Paley's L,a\Ar and Practice of Sum- 
 mary Convictions under the Summary Juris- 
 diction Acts, 1848 and 1879; including Proceedings 
 preliminary and subsequent to Convictio'i ■;, and the responsibility 
 of convicting Magistrates and their OhLers, mth Forms. Sixth 
 Edition. By W. H. MACNAMARA, Esq., Barrister-at-Law, 
 Demy 8vo. 1879. 1^. 4s. 
 
 Stone. — Vide " Petty Sessions." 
 "Wigram. — Vide "Justice of the Peace." 
 
 OONVEYANCING.-Dart.— Fic^e "Vendors and Purchasers." 
 
 Greenwood's Manual of Convey ancing. — AManu.al 
 
 of the Practice of Conveyancing, showing the present Practice 
 
 relating to the daily routine of Conveyancing in Solicitors' Offices. 
 
 To which are added Concise Common Porms and Precedents in 
 
 Conveyancing ; Conditions of Sale, Conveyances, and all other 
 
 Assurances in constant use. Fifth Edition. By H. N. CAPEL, 
 
 B.A., LL.B., Solicitor. Demy 8vo. 1877. 15s. 
 
 "A careful study of these pages would probably arm a diligent clerk with as much 
 
 useful knowledge as he might otherwise take years of desultory questioning and obserying 
 
 to acquire." — Solicitors' Journal. 
 
 The young solicitor will find this work almost invaluable, while the members of the 
 higher brauch of the profession may refer to it with advantage. We have not met with 
 any book that furnishes so simple a guide to the management of business eutrusted to 
 articled clerk.s." 
 
 Haynes. — Vide "Leading Cases." 
 
 Martin's Student's Conveyancer. — A Manual on the 
 
 Principles of Modern Conveyancing, illustrated and enforced by a 
 
 Collection of Precedents, accompanied by detailed Remarks. Part I. 
 
 Purchase Deeds. By THOMAS FREDERIC MARTIN, Solicitor. 
 
 Demy 8vo. 1877. 5s. 6rf. 
 
 " We have no doubt that the student will find in Mr, Martin's treatise a good guide to 
 
 the practical part of conveyancing." — Law Times. 
 
 " It should be placed in the hands of every student." 
 
 Palmer's Company Precedents. — Conveyancing and 
 
 other Forms and Precedents relating to Companies' incorporated 
 
 under the Companies' Acts, 1862 and 1867. Arranged as follows : — 
 
 Agreements, Memoranda of Association, Articles of Association, 
 
 Resolutions, Notices, Certificates, Provisional Orders of Board of 
 
 Trade, Debentiu-es, Reconstruction, Amalgamation, Petitions, Orders. 
 
 With Copious Notes. By FRANCIS BEAUFORT PALMER, of 
 
 the Inner Temple, Esq ., Barrister-at-Law. Demy 8vo. 1877. U. 5s. 
 
 " There had never, to our knowledge, been any attempt to collect and edit a body of 
 
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 success .... The information contained in the 65n pages of the volume is rendered 
 
 easily accessible by a good and full index. The author has evidently not been sparing of 
 
 labour, and the frcits oi hi.s exertions are now before the legal profession in a work of great 
 
 practical utility." — Z'.au) ilagazine. 
 
 " To those concerned in getting up companies, the assistance given by Mr. Palmer 
 raust be veiy valuable, because he does not confine himself to bare precedents, but by 
 intelligent and learned commentary lights up, as it were, each step that he takes. The 
 \olume before us is iCt, therefore a book of precedents merely, but, in a greater or less 
 degree, a treatise on certain portions of the Companies' Acts of 1862 and 1S67. There is an 
 elaborate index, and the work is one which must commend itself to the profession." — 
 Law Tiints. 
 
 "The [^irecedents are as a rule exceedingly well drafted, and adapted to companies for 
 almost every conceivable object. So especially are the forms of memoranda and articles 
 ot association ; and these will be found extremely serviceable to the conveyancer. . . . 
 All the notes have been elaborated with a thoroughly scientific knowledge of the 
 principles of company law, as well as with copious references to the cases substantiating 
 the principles. . . ■ We venture to predict that his notes will be found of great utility 
 iu guiding opinions on many complicated questions of law and practice. "^iaic Journal. 
 
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 Prideaux's Precedents in Conveyancing.— Witb 
 
 Dissertations on its Law and Practice. Ninth Edition. By 
 
 FREDERICK PRIDEAUX, late Professor of the Law of Real and 
 
 Personal Property to the Inns of Court, and JOHN WHITCOMBE, 
 
 E3qrs.,Barristers-at-Law. 2 vols. Royal 8 vo. 1879. 3^ 10s. 
 
 " Wo have been always accustomed to view 'Prideaux' as the most useful work 
 
 out en conveyancing. It combines conciseness and clearness in its piecedents 
 
 with aptness and comprehensiveness in its dissertations and notes, to a degi-ee superior 
 
 to that of any other work of its kind."— /.('«• Jounwl, February 8, 1870. 
 
 *• Prideaux has become an nidispensafile part of the Conveyanier's library 
 
 The new edition has been edited with a care and accuracy of which we can hardly speak 
 
 too highly The care and completeness with which the dissertation his 
 
 been revised leaves us hardly any room for cniici8m."—Solicito,-^' Journal. 
 
 "Thevolames are now sometliint; more th.an a mere collection of precedents ; they 
 contain most vjluabh- di.sstrtations on the law and practice with reference to conveyancing. 
 These rtisseitatious are followed by the precedents on each subject dealt with, and are in 
 tberaselTes condensed treatises, embodying all the latest case and statute law."— Z-o!;; Tmes. 
 
 COPYRIGHT.-Phlllips' Law of Copyright in Works of 
 Literature and Art, and in the Application of Designs. With 
 the Statutes relating thereto. By G. P. PHILLIPS, Esri., Bar- 
 nster-at-Law. 8vo. 1863. 12s. 
 
 CORONERS.— J ervis on the Office and Duties of 
 Coroners. — With Forms and Precedents. Foiu-th Edition. 
 
 (In prcpamtioa.) 
 
 COSTS.— Morgan &nd Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.P., 
 one of Her Majesty's Counsel, and HORACE DAVEY, M.A., one 
 of Her Majesty's Counsel. With an Appendix, contaming Forms 
 and Precedents of Bills of Costs. 8vo. 1865. 1^. Is. 
 
 Scott's Costs in the High Court of Justice 
 and other Courts. Fourth Edition. By JOHN SCOTT, 
 of the Inner Temple, Esq., Bariister-at-La\v, Reporter of the Com- 
 mon Pleas Division. Demy Svo. 1880. 1?. Os. 
 " Mr Scotfs introductory notes are very useful, and the work is now a compendiun. 
 
 on the law and practice regarding costs, as well as a bock of precedents."— itnc Tuaes. 
 "This now edition of Mr. Scott's well-known wcrk embodies the changes effected 
 
 since the .Jtidicature .■\cts, and, so far as we have examined it, api^ars to be accuiato 
 
 and comTJlote."— 6V-?ict(o/s' Jouraal. , t • • j .. ■ 
 
 Scott's Costs in Bankruptcy and Liquidation 
 under the Bankruptcy Act, 1869. Royal 12mo. 
 1873. "^^ 3s. 
 
 Summerhays and Toogood's Precedents of 
 Bills of Costs in the Chancery, Queen's 
 Bench, Common Pleas, Exchequer, Probate 
 and Divorce Divisions of the High Court of 
 Justice, in Conveyancing, Bankruptcy, the Crown Office, Lunacy, 
 Arbitration under the Lands Clauses Consolidation Act, the Mayor's 
 Court, London ; the County Courts, the Privy Council, and on 
 Passing Residuary and Succession Accounts ; with Scales of Allow- 
 ances and Court Fets, the Law Society's Scale of Commission in 
 Conveyancing' ; Forms of Affidavits of Increase, and Objections to 
 Taxation. By Wm. FRANK SUMMERHAYS, Sohcitor, and 
 THORNTON' TOOGOOD. Third Edition, Enlarged. Royal Svo. 
 
 1879. 1^- !«• 
 
 "lu the volume before us we have a very complete niannal of taxation. The work is 
 
 beaiitilully printed aiid arranmd, and tach item catches the eye instantly. '—Z<x«i 
 
 Journal. -r. • ^ timi 
 
 Webster's Parliainentary Costs. — Private Bills, 
 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 
 WEBSTER, Esq., of the Ta.xing and Examiners' Office. Third 
 
 Edition. Post Svo. 1867. . 20s. 
 
 *^"' A n standard Law Works are kept in Stock, in lau- caJf and other bindincfs. 
 
 A 3
 
 10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 COUNTY COURTS.— Pitt-Lewis' County Court Prac- 
 tice. — A Complete Practice of the County Courts, including Admi- 
 ralty and Bankruptcy, embodying the Acts, Rules, Forms and Costs, 
 with Additional Forms and a FuU Index. By G. PITT-LEWIS, 
 of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, 
 sometime Holder of the Studentship of the Four Inns of Com-t, 
 assisted by H. A. DE COLYAE, of the Middle Temple, Esq., 
 Barrister-at-Ijaw, Author of " A Treatise on the Law of Guaran- 
 tees." In Two parts. 2 vols. (20-28pp.). Demy 8vo. 1880. 21 2s. 
 Also, i^uhlislied separately, 
 Part I. History, Constitution, and Jurisdiction (including Prohibition 
 and Mandamus), Practice in all ordinary Actions (including Actions under 
 the Bills of Exchange Acts, in Ejectment, in Remitted Actions, and in 
 Replevin), and on Appeals, with Appendices, Index, &c. (1184 pp.). 30s. 
 Part II. Practice in Admiralty, Probate, Bankruptcy, and under Special 
 Statutes, with Appendices, Index, &c. (1004 pp.). 25s. 
 
 " We have rarely met with a work which in its first issue was 
 executed with more conscientious care and scrupulous accuracy. No 
 
 detail has escaped its due attention and its proper place An 
 
 excellent index completes a work which, in our opinion, is one of the 
 best books of practice which is to be found in our legal literature. — Lav) 
 Times, May 8, 1880. 
 
 " We have rarely met with a work displaying more honest industry 
 on the part of the author than the one before us. — Laio Journal, May 15, 
 ISSO. 
 
 CRIMINAL LAW.— Arehbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &c., and the Evidence necessary to support them. By 
 JOHN JERVIS, Esq. (late Lord Chief Justice of Her Majesty's 
 Court of Common Pleas). Nineteenth Edition, including the 
 Practice in Criminal Proceedings by Indictment. By WILLIAM 
 BRUCE, of the Middle Temple, Esq., Barrister-at-Law, and 
 Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 
 1878. 1^ lis. M. 
 
 Greaves' Criminal Law Consolidation and 
 Amendment Acts of the 24 & 2S Vict.— With 
 Notes, Observations, and Forms for Summary Proceedings. By 
 CHARLES SPRENGEL GREAVES, Esq., one of Her Majesty's 
 Counsel. Second Edition. Post 8vo. 1862. 16s. 
 
 Haynes. — Vide " Leading Cases." 
 
 Roscoe's Digest of the Law of Evidence in 
 Criminal Cases.— Ninth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1878. II. lis. M. 
 
 Russell's Treatise on Crimes and Misdemea- 
 nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of 
 Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. 51. 15s. Qd. 
 This treatise is so much more copious than any other upon all the subjects contained 
 in it, that it affords by far the best means of acquii-ing a knowledge of the Criminal Law 
 in general, or of any offence in particular ; so that ii will be found peculiarly useful as 
 well to tho&a rrbo wish to obtain a complete knowledge of that law, as to those who 
 desire to be informed on any portion of it as occasion may require. 
 
 "What better Digest of Criminal Law could we possibly hope for than 'Kussell on 
 Crimes ? ' " — Sir James Fitzjames Stephen's Speech on Coditkalion. 
 
 "No more tnistwortby authority, or more exhaustive expositor than 'Rnssell' can be 
 consulted." — Law Magazine and Revitv. 
 
 "Alterations have been made in the arranccment of the work which without interfering 
 with the general plan are sufficient to show that great care and thought have been 
 
 bestowed AVe are amazed at the patience, industry and skill which are exhibited 
 
 in the collection and arrangemen* of all this mass of learning." — The Times. 
 
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 119, CHANCERY LANE, LONDON, W.O. 11 
 
 CROSSED CHEQUES ACT — Cavanagh.— Fic/e "Money Securi- 
 ties." 
 "Walker. — Vide " Banking." 
 
 DECREES.— Seton.— FicZe " Equity." 
 
 DIARY.— La\A/^yer's Companion (The), Diary, and Law 
 Directory for 1880. — For the use of the Legal Profession, 
 Public Companies, Justices, Merchants, Estate Agents, Auctioneers, 
 &c., &c. Editea by .JOHN THOMPSON, of the Inner Temple, 
 Esq. , Barrister-at-Lav,- ; and contains a Digest of Kecent Cases on 
 Costs ; Monthly Diary of County, Local Government, and Parish 
 Business ; Oaths in Supreme Court ; Summary of Legislation of 
 1878; Alphabetical Index to the Practical Statutes; a Copious 
 Table of Stamp Duties; Legal Time, Interest, Discount, Income, 
 Wages and other Tables; Probate, Legacy and Succession Duties ; 
 andli variety of matters of practical utility. Published Annually. 
 Thirty-fourth Issue. 
 The work also contains the most complete List published of Town and 
 
 Country Solicitors, with date of admission and appointments, and is issued 
 
 in the following forms, octavo size, strongly bound in cloth : — s. d. 
 
 1. Two days on a page, plain 5 
 
 2. The above, interleaved for Attendances . . .70 
 
 3. Two days on a page, ruled, with or without money columns 5 6 
 
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 5. AVhole page for each day, plain 7 6 
 
 6. The above, interleaved for Attendances . . .96 
 
 7. Whole page for each day, ruled, with or without money 
 
 columns .......... ° 6 
 
 8. The above, inteelbaved for Attendances . . .10 6 
 
 9. Three days on a page, niled blue lines, without money 
 
 colvmins . . ....... 5 
 
 The Diary contains memoranda of Legal Business throughout the Year. 
 
 " An excellent v.-oi-k."--7Vi« Times. 
 
 " A publication which has long ago secured to itself the favour of the profession, and 
 which, as heretofore, justifies by its contents the title assumed by it."— Laio Journal. 
 
 " Contains all the information whicli could be looked for in such a woik.and gives it 
 in a saost convenient form and very completely. We may unhesitatingly recommend the 
 work to our re-dders."— Solicitors' Journal. 
 
 " The ' Lawyer's Companion and Diary' is a book that ought to be in the possession of 
 every lawyer, and of every man of business." 
 
 "The ' Lawyer's Companion ' is, indeed, what it is called, for it combines everything 
 required for reference in the lawyer's oflce." — Law Times. 
 
 " It is a book without which no lawyer's library or office can be complete."— /wA 
 
 Lato Times. , . , . , , ,, . „ ,, • 
 
 ' ' This work has attained to a completeness which is beyond all praise. —Morning 
 
 Post. 
 
 DICTIONARY.— Wharton's Law Lexicon.— A Dictionary of 
 
 Jurisprudence, explaining the Technical Words and Phrases employed 
 
 in the several Departments of English Law ; including the various 
 
 Lef'al Terms used in Commercial Transactions. Together w.'tb an 
 
 Explanatory as well as Literal Translation of the Latin Maxims 
 
 contained in the Writings of the Ancient and Modem Commentators. 
 
 Sixth Edition. Enlarged and re\ased in accordance with the 
 
 Judicature Acts, by J. SHIllESS WILL, of the Middle Temple, 
 
 Esq., Barri.ster-at-Law. Super royal 8vo. 1876. 2/. 2s 
 
 'As a work of reference tor the library, the handsome and elaborate edition of 
 
 ' ^Vhartun'8 Law Lexicon ' whit-b Mr. Sliiress Will has produced, must supersede all former 
 
 issues of that well-known work."— Zatc Magazine and Keview. 
 
 " No law library is complete without a law dictionary or law lexicon. To the practi- 
 tioner it is always useful to have at hand a book where, in a small compass, he can find 
 an explanation of terms of inirtqueut occurrence, or obtain a reference to statutes on 
 most subjects, or to books wherein particular sulijects are treated of at full length. To the 
 student it is 'almost indispensable. "—/.«!(; Tii/ie*. 
 
 * * All Standard Law Works arc kept in Stock, in laxo calf and other bindings. 
 
 A 4
 
 12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DIGESTS.— Bedford. — Vide " Examination Guides." 
 Chamber's — Vide " Public Health." 
 
 Chitty's Equity Illdex.— Chitty's Index to all the Kepoi-ted 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords, 
 from the earliest period. Third Edition. By J. MACAULAY, 
 Esq., Barrister-at-Law. 4 vols. Eoyal 8vo. 1853. 71. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the House of Lords and Privy Coiincil, and in the 
 Courts of Common Law, Divorce, Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; 
 with References to the Statutes and Rules of Court. Founded on 
 the Analytical Digest by Harrison, and adapted to the present 
 practice of the Law. By R. A. FISHER, Esq., Judge of the 
 County Courts of Bristol and of Wells. Five large volumes, royal 
 8vo. 1870. 12Z. 12.". 
 
 {Continued Annually.) 
 " Mr. Fisher's Digest is a wonderful work. It is a miracle of human indnstiy."— il/'. 
 Jiislice }yiUes. 
 
 "I think it would be very difficult to improve upon Mr. Fisher's 'Couimou Law 
 Digest.' " — Sir James Fitzjames Stephen, on Codification. 
 
 Leake. — Vide "Real Property" and "Contracts." 
 
 Notanda Digest in La^/v, Equity, Bankruptcy, 
 
 Admiralty, Divorce, and Probate Cases. — By 
 
 H. TUDOR BODDAM, of the Inner Temple, and HARRY 
 
 GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. The 
 
 Notanda Digest, from the commencement, October, 1862, to 
 
 December, 1876. In 2 volumes, half-bound. Net, M. 10s 
 
 Ditto, Third Series, 1873 to 1876 inclusive, half-bound. Net, II. lis. 6d. 
 
 Ditto, Fourth Series, for the years 1877, 1878, and 1879, with Index. 
 
 Each, net, 11. Is, 
 Ditto, ditto, for 1880, Plain Copy and Two Indexes, or Adhesive Copy 
 for insertion in Text-Books (without Index). Annual Subscription, 
 payable in advance. Net, 21s. 
 
 *^* The numbers are issued regularly every alternate month. 
 Each number will contain a concise analysis of every case reported 
 in the Laio Reports, Law Journal, Weekly Reporter, Laic Times, and 
 the Irish Law Reports, up to and including the cases contained in the 
 parts for the current month, with references to Text-books, Statutes, 
 and the Law Reports Consolidated Digest. An alphabetical 
 INDEX of the subjects contained in each number will form a new 
 feature in this series. 
 Pollock. — Vide " Partnership." 
 Roscoe's. — Vide " Criminal Law " and " Nisi Prius." 
 
 DISCOVERY.— Hare's Treatise on the Discovery of 
 Evidence. — Second Edition. Adapted to the Procedure in the 
 High Court of Justice, with Addenda, containing all the Reported 
 Cases to the end of 1876. By SHERLOCK HARE, Barrister-at- 
 Law. Post 8vo. 1877. ^ 12s. 
 " The book is a useful contribution to our text-books ou practice." — Solicitors' Journal. 
 " We have read his work with con^iderable attention an 1 interest, and we can speak in 
 terms of cordiil praise of the maimer in which the new procedure has been worked into 
 the old material. ... All the sections and orders of the new legislation are referred 
 to in the text, a synopsis of recent cases is given, and a good index completes the 
 Tolume." — Law Times. 
 
 Seton. — Vide "Equity." 
 *^* All standard Law Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY LAl^^'E, LONDON, W.C, 13 
 
 DISTRICT REGISTRIES.-Archibald.— Firfe "Judges' Chambers 
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 DIVORCE.— Browne's Treatise on the Principles 
 and Practice of the Court for Divorce and 
 Matrimonial Causes: — With the Statutes, Rules. Fees 
 and Forms relating thereto. Fourth Edition. By GEORGE 
 BROWNE, Esq.. B.A., of the Inner Temple, Barrister-at-Law, 
 Recorder of Ludlow. Demy 8vo. 1880. 1?. 4s. 
 
 " The book is a clear, practical, and, so far as we have been able to test it, accurate 
 
 exposition of divorce law and procedure." — Solicitors' Jov.rna'. 
 
 Haynes. — Vide "Leading Cases." 
 
 DOMICIL.— Dicey on the Law of Doniicil as a branch 
 
 of the Law of England, stated in the form of 
 
 Rules. — By A. V. DICEY, B.C.L., Barrister at Law. Author 
 
 of " Rules for the Selection of Parties to an Action." Demy 8vo. 
 
 1879. 18s- 
 
 " The practitioner will flud the hook a tlioroughly exact and trustworthy summary 
 of the present state of ihe law."— 7%e Spectator, August 9th, 1879. 
 
 Phillimore's(SirR.) Law of Domicil.— Svo. 1847. ^s. 
 
 DUTCH LAW.— Vanderlinden's Institutes of the La^A/■s 
 
 of Holland.— Svo. 1828. 1/. 18s. 
 
 EASEMENTS.— Goddard's Treatise on the Law of 
 
 Easements.-By JOHN LEYBOURN GODDARD, of the 
 
 Middle Temple, Esq., Barrister-at-Law. Second Edition. Demy 
 
 Svo. 1877. 16s. 
 
 " The b. ok is invaluable : where the cases are silent the author has taken pains to 
 
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 "Nowhere has the sutji-ct been treated so exhaustively, and, we may add, so scientifi- 
 cally, as by Mr. Goddard. We recommend it to the most careful study or the law student 
 as well as to the libiary ol the practitioner."— iaio Times. 
 
 ECCLESIASTICAL.- Phillimore's (Sir R.) Ecclesiastical 
 Law. — The Ecclesiastical Law of the Church of England. With 
 Supplement, containing the Statutes and Decisions to end of 1875. 
 By Sir ROBERT PHILLIMORE, D.C.L., Official Principal of 
 the Arches Court of Canterbury ; Member of Her Majesty's Most 
 Honourable Privy Council. 2 vols. Svo. 1873-76. ills. Qd. 
 
 *^* The Supplement may be had separately, price 4s. 6d., sewed. 
 
 ELECTIONS-- Browne (G. Lathom.)—riVZc "Registration." 
 FitzGerald.— Firfe "Ballot." 
 
 Rogers on Elections, Registration, and Election 
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 cipal Elections and Registration. With an Appendix of Statutes 
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 which it containi". a mine of extracts from and references to the older autlioritics, 
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 ENGLAND, LAWS OF,— Bowyer. — Vide "Constitutional Law." 
 Broom and Hadley.— Firfe "Commentaries." 
 
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 14 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 EQUITY, and Vide CHANCERY. 
 
 Seton's Forms of Decrees, Judginents, «nd. 
 Orders in the High Court of Justice andCourts 
 of Appeal, having especial reference to the Chancery Division, 
 with Practical Notes. Fourth Edition. By E. H. LEACH, Esq., 
 Senior Registrar of the Chancery Division ; F. G. A. WILLIAMS, 
 of the Inner Temple, Esq. ; and the late H. W. MAY, Esq. ; suc- 
 ceeded by JAMES EAST WICK, of Lincoln's Inn, Esq., Barristers- 
 at-Law. 2 vols, in 3 parts. Koyal 8vo. 1877—79. U. 10«. 
 
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 " Of all the editions of ' Seton' this is the has.t.— Solicitors' Journal. 
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 " Now the book is before us complete ; and we advisedly say complete, because it 
 has scarcely ever been our fortune to see a more complete law book than this. Exten- 
 sive in sphere, and exhaustive in treatise, comprehensive in matter, yet apposite in 
 details, it presents all the features of an excellent work . . . Theindex, extend- 
 ing over 278 pages, is a model of comprehensiveness and accuracy." — Law Journal. 
 
 Smith's Manual of Equity Jurisprudence.— 
 A Manual of Equity Jurisprudence for Practitioners and Sindents, 
 founded on the Works of Story, Spence, and other writers, and on 
 more than a thousand subsequent cases, comprising the Fundamental 
 Principles and the points of Equity usually occurring in General 
 Practice. By JOSIAH W. SMITH, B.C.L., Q.C. Thirteenth 
 Edition. 12mo. 1880. 12s. M. 
 
 "There is no disguisiug the truth ; the propsr mode to use this book is to learn its pages 
 by heart." — Law Manazine and Review. 
 
 " It will be found "as useful to the practitioner as to the slnient."— Solicitors' Journal. 
 
 EXAMINATION GUIDES.— Bedford's Guide to the Preli- 
 minary Examination for Solicitors.— Fourth 
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 Bedford's Preliininary. — Containing the Questions and 
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 {Discontinued). Sewed, net. each. Is. 
 
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 Nos. 35 (Easter, 1877) to 43 (Trinity, 1879). (Discontinued). 
 
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 Bedford's Student's Guide to Smith on Con- 
 tracts. Demy 8vo. 1879. 3s. 6c/. 
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 119, CHANCERY LANE, LONDON, W.O. 15 
 
 EXAMINATFoN 0[J\DES -Continued. 
 
 Bedford's Final. —Containing the Questions and Answers at 
 
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 EXECUTORS.— Williams' Law of Executors and Ad- 
 ministrators.— Bythe Rt. Hon. Sir EDWARD VAUGHAN 
 WILLIAMS, late one of the Judges of Her Majesty's Court of 
 Common Pleas. Eighth Edition. By WALTER VAUGHAN 
 WILLIAMS and ROLAND VAUGHAN WILLIAMS, Esqrs., 
 Barristers at-Law. 2 vols. Royal 8vo. 1879. 3?. 16s. 
 
 " A treatise which occupies a unique position and which is recognised by the 
 
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 EXECUTORY DEVISES.— Fearne.-Fzde "Contingent Remainders," 
 
 FACTORY ACTS.— Notcutt's Law relating to Factories 
 and Workshops, with Introduction and Ex- 
 planatory Notes. Second Edition. Comprising the Factory 
 and Workshop Act, 1878, and the Orders of the Secretary of State 
 made thereunder. ByGEO.JARVIS NOTCUTT, Solicitor, formerly 
 of the Middle Temple, Esq., ]5arrister-at-Law. 12mo. 1879. 9s. 
 
 "The task of elucidating the provisions of the statute is done in a manner that 
 leaves nothing to bo desired." — Birmingham Dailij Gazette. 
 
 FARM, LAW OF.— Addison ; Cooke. — Vide "Agricultural Law." 
 
 Dixon's Law of the Farm — A Digest of Cases connected 
 
 with the Law of the Farm, and including the Agricultttr.al Customs of 
 
 England andWales. Fourth EcUtion. By HENRY PERKINS, Esq., 
 
 Barrister-at-Law and Midland Circuit. Demy Svo. 1879. 1/. Qs. 
 
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 16 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 FINAL EXAMINATION DIGEST.-Bedford.— 7irfe "Examination 
 Guides." 
 
 FIXTURES. -Amos and Ferard on Fixtures.- Second 
 Edition. Royal 8vo. 1847. 16«. 
 
 FOREIGN JUDGMENTS.— Piggott's Foreign Judgments, 
 their effect in the Englisli Courts, tlie English 
 Doctrine, Defences, Judginents in Rem, 
 Status.— By F. T. PIGGOTT, M.A., LL.M., of the Middle 
 Eoyal 8vo. 1879. 15s. 
 
 " A useful and weil-timed volume." — Lav Magazine, August, 1879. 
 "Mr. Piggiitt writes under strong conviction, but he is always caiefal to rest hU 
 
 arguments on avitliority, and therehy adds considerably to the value of his handy volume.' 
 
 Law Mtigazine and Review, November, 1S70. 
 
 " M. i'lggott doiiiie ii I'lStude de I'une des qncRtions Irs plus complexes du droit inter- 
 
 ii.atiouiil pnv^ une t'orme tout nouvelle : il applique dans toute sa ricueur la methode 
 
 des sciences exacted, ct ne recule pas devai.t IVinploi des fonuules algebriquFS. C'dtait 
 
 li une tentative pciilleuse dont le sueces pouvaii; Rpinbler dou.eux ; mais il sufflt; 
 
 d'indiquer la marche snivie et les riSsultats oljtenus pa'" ranteur jiour cotnprendre I'impor- 
 
 tauce et le merue de cette publication." — Joiirnot du Droit Interiintionitl Prive, 1S79. 
 
 FORMS. — Archibald. — Vide "Judges' Chambers Practice." 
 
 Chitty's Forms of Practical Proceedings in 
 the Queen's Bench, Common Pleas and Ex- 
 chequer Divisions of the High Court of Jus- 
 tice : with Notes containing the Statutes, Rules and Practice 
 relating thereto. Eleventh Edition. By THOS. WILLES 
 OHITTY, Esqr. Demy 8vo. 1879. \J. \is. 
 
 Daniell's Forms and Precedents of Proceed- 
 ings in the Chancery Division of the High 
 Court of Justice and on Appeal therefrom ; 
 with Dissertations and Notes, forming a complete guide to the 
 Practice of the Chancery Division of the High Court and of the 
 Courts of Appeal. Being the Third Edition of " Daniell's Chancery 
 Forms." By WILLIAM HENRY UPJOHN, Esq., Student and 
 Holt Scholar of Gray's Inn, &c., &c. In one thicli vol. Demy 8vo, 
 1879. '11. 2s. 
 
 " Mr. Upjohn has restored the volume of Chancery Forms to the place it held before 
 the recent changes, as a trustworthy and complete collection of precedents."— Soiici<o»'i' 
 Journal. 
 
 " We have had this work in practical use for some weeks, and so careful is the noting 
 up of the authorities, so clearly and concisely are the notes expressed, that we have found 
 it of as much value as the ordinary text books on the Judicature Acts. It will be as use- 
 ful a work to] practitioners at ■Westminster as it will be to those in Lincoln s Inn." — Law 
 Times. 
 
 FRENCH COMMERCIAL LAW .-Goi rand.- nf?e"CommercialLaw." 
 
 HIGHWAYS.-Baker's Law of Highways in England 
 
 and "Wales, including Bridges and Locomotives. Compri.sing 
 
 a succinct code of the several provisions under each head, the 
 
 statutes at length in an Appendix ; with Notes of Cases, Forms, 
 
 and copious Index. By THoMAS BAKER, of the Inner Temple, 
 
 Esq , Barrister-at-Law. Royal 12mo. 1880. 15s. 
 
 Chambers' Law relating to Highways and 
 
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 Leading Cases; to whicli is added the Law relating to the 
 
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 1878. 18s. 
 
 Shelford's Law of Highways, including the General 
 
 Highway Acts for England and Wales, and other Statutes, with 
 
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 INCLOSURES.— Fide "Commons." 
 
 INDIAN LAW — Norton's Leading Cases on the Hindu 
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 Net, 21. 10s. 
 
 IN JUNCTIONS.— Seton.— HcZc " Equity." 
 
 INSURANCE.— Arnould on the Law of Marine Insu- 
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 " As a text book, ' Arnould ' is uow all the practitioner uaa want, and we congratulate 
 
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 Hopkins' Manual of Marine Insurance.— 8vo. 
 
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 INTERNATIONAL LAW. — Amos' Lectures on Inter- 
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 of Court, &c. Royal Svo. 1874. 10s. 6d, 
 
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 Principles of Mercantile Law of the following and other Countries 
 — viz. : England, Ireland, Scotland, British India, British Colonies, 
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 Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia^ 
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 Royal Svo. 1834. n i,. 
 
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 •'Both the plan and execution of tlie work before us deserves commendation. Mr.' 
 Boyd gives prominence to the labours of (jthers. The text of Wheatou is presented 
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 whether lie is reading Wheaton or Boyd. The Index, which could not have been com- 
 piled without much thought an i Iibour makes the book huudy for reference, and, 
 conseiiuently, valuable to public writers, who iu these days have frequently to refer to 
 Interuati'inal Law." — Law Journal. 
 
 "Students who require a knowledge of Wheiton's text will find Mr. Boyd's volume 
 very convenient."— iauj Magazine. 
 
 Wildman's International La-w. — Institutes of Inter- 
 national Law, in Time of Peace and Time of War. By RICHARD 
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 *^* A 11 standard Law Works arc kept in Stock, in law calf ind other bindings.
 
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 JOINT STOCKS. — Palmer. — Vide " Conveyanciug " and "Company 
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 Thring's (Sir H.) Joint Stock Companies' Law.— 
 The Law and Practice of Joint Stock and other Companies, including 
 the Companies Acts, 1862 to 1880, with Notes, Orders, and Rules in 
 Chancery, a Collection of Precedents of Memoranda and Articles of 
 Association, and all the other Forms required in Making, Administer- 
 ing, and Winding-up a Company ; also the Partnership Law Amend- 
 ment Act, The Life Assurance Companies Acts, and other Acts 
 relating to Companies. By Sir HENRY THRING, KC.B., The 
 Parliamentary Counsel. Fourth Edition. By G. A. R. FITZ- 
 GERALD, Esq., M.A., Barrister-at-Law, and late Fellow of St. 
 John's College, Oxford. Demy 8vo. 1880. (In the press.) 
 
 "This, as the work of the original dianghtsman of the Companies' Act of 18B2, and 
 
 well-known Parliamentary counsel. Sir Henry Thring is naturally the highest authority 
 
 on the subject." — Tlie Times. 
 
 Jordan's Joint Stock Companies.— A Handy Book of 
 Practical Instructions for thf Formation and Management of Joint 
 Stock Companies. Sixth Edition. 12mo. 1878. Net, 2s. 6d. 
 
 JUDGES' CHAMBERS PRACTICE— Archibald's Forms of 
 
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 Chambers and in the District Registries. By W. F. A. ARCHI- 
 BALD, M.A, of the Inner Temple, Barrister-at-Law, Royal 12mo. 
 
 1879. 12s. 6d. 
 " The work is done most thoroughly and yet concisely. The practitioner will find 
 
 plain directions how to proceed in all the matters connected with a common law 
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 jurisdiction of the common law divisions, in the district registries, and at Judges' 
 chambers."— iaic Times, July 26, 1879. , . ^ .,, , . . ^ • , i , v, i.i 
 
 " A clear and well-digested vade mecum, which will no doubt be widely used by the 
 Y)Yo{cssion."— Law Afagazine, November, 1879. 
 JUDGMENTS.- Piggott.— FzcZe "Foreign Judgments." 
 
 Walker's Practice on Signing Judgment in 
 
 the High Court of Justice. With Forms. By H. H. 
 
 WALKER, Esq., of the .Judgment Department, Exchequer Division. 
 
 Crown 8vo. 1879. 4s. 6d. 
 
 "The book undoubtedly meets a want, and furnishes information available for almost 
 
 every branch of practice." .,„,.. ^ , i- , ,> r , > 
 
 ' ' We think that solicitors and their clerks will find it extremely useful. —Law Journal. 
 
 JUDICATURE ACTS.— Ilbert's Supreme Court of Judi- 
 cature (Officers) Act, 1879 ; ^vith the Rules of Court and 
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 COURTENAY P. ILBERT, Esq., Barrister-at-Law. Royal 12mo. 
 
 1880. 6s. 
 (In limp leather, 9s. Qd.) 
 
 *^* A LAEGE PAPER EDITION (for marginal notes). Royal 8vo. 8s. 
 
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 Tlie above forms a Supplement to " Wilson's Judicature Acts." 
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 Court of Judicature in England. With References 
 to Acts, Rules, and Orders. For the Use of Students. Fourth 
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 Morgan.— Fi(?e "Chancery." 
 
 Stephen's Judicature Acts 1873, 1874, and 1875, 
 
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 FITZJAMES STEPHEN, one of Her Majesty's Judges. 12mo. 
 
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 JUDICATURE ^C^S. -Continued. 
 
 Swain's Complete Index to the Rules of the 
 
 Supreme Court, April, 1880, and to the Forms (uniform 
 
 with the Official Rules and Forms). By EDWARD SWAIN. 
 
 Imperial 8vo. 1880. Net. Is. 
 
 " An almost indispensable addition to the recently issued tmIcs."— Solicitors' 
 
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 Wilson's Supreme Court of Judicature Acts, 
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 Regulations relating to the Supreme Court of Justice. With 
 Practical Notes and a Copious Index, forming a Complete Guide 
 TO THE New Practice. Second Edition. By ARTHUR WIL- 
 SON, of the Inner Temple, Bari-ister-at-Law . (Assisted by 
 HARRY GREENWOOD, of Lincoln's Inn, Barrister-at-Law, 
 and JOHN BIDDLE, of the Master of the Rolls Chambers.) 
 Royal 12rao. 1878. (pp. 726.) 18s. 
 
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 "Mr. WiLson has bestowed upon this edition an amount of industry and care which 
 
 the Beach and the Profession will, we are sure, gratefully acknowledge A 
 
 conspicuous and important teature in this seond edition is a table of cases prepared by 
 Mr. Biddle, in which not only are cases given with references to two or three reports, but 
 
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 is now the latest, and we think it is the most convenient of the works of the same class. 
 The practitioner will find that it supplies all his wants."— ioio Times. 
 
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 Law, delivered at the Hall of the Inner Temple, Hibiry Term, 1851. 
 By J. G. PHILIJMORE, Esq., Q.C. 8vo. 1851. Sewed. 3s. 6d. 
 
 Piggott. — Vide "Foreign Judgments." 
 JUSTINIAN, INSTITUTES OF.-Cumin.— Firfe "Civil Law." 
 
 Greene. — Vide "Roman Law." 
 
 Mears. — Vide "Roman Law." 
 
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 of Justinian. — -Being a complete synopsis thereof in the form 
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 JUSTICE OF THE PEACE.— Burn's Justice of the Peace 
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 Vol. IV. containing the whole title " Poor ;" by J. E. DAVIS, 
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 Q.C, Recorder of Leeds. Five vols. Svo. 1869. 71. 7s. 
 
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 JUSTICE OF THE PE f^CE.-Continued. 
 Paley. — Vide " Convictions." 
 
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 Clerks and Solicitors at Petty and Special Sessions. With Forms. 
 Ninth Edition. By F. G. TEMPLER, Esq., Barrister-at-Law. 
 
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 Wiq rain's The Justices' Note Book. By W.KNOX 
 WIGRAM, Esq., Barrister-at-Law, J.P. Middlesex. Royal 12mo., 
 1880. 105. 6c/. 
 
 Tn the first portion, or 'Preliminary Notes,' the conslitutioii of courts of Nummary 
 .Turisdiction, together with the whole course of ordinary procedure, as modified Ijy 
 the recent A ct, are explained in a series of short :;hapters, under the following heads :— 
 I. Justices— Jurisdiction— Divisions— Petty and Special Sessions. II. Summary 
 Jurisdiction upon Information— Preliminary Pi-oceedings. 111. Summary Jurisdic- 
 tion upon Information— the Hearing and Punishment. IV. Indictable Offences- 
 Committal for Trial. V. Summary Jurisdiction as regards Indictaljle Offences; 
 (children -young persons -and adults). VI. Summary Jurisdiction upon Complaint. 
 VII Qiiarter Sessions and Appeal. VI II. Note on the Summary Jurisdiction Act, 1870. 
 In the second part, entitled ' ^otes of Matters and Offences alphabetically arranged.' 
 will be found an account of mo.st .subjects which from time to time occupy the 
 attention of Justices, either in Petty or Special Ses.sions. 
 
 " We have nothing but praise for the book, wldch is a justices' royal road to knowledge, 
 and ought to lead them to a more accurate acquaintance with their duties than many of 
 them have hitherto posiesaed."— Solicitors' Journal. 
 
 " This is altogether a capital book. Mr. Wigram is a good lawyer and a good 
 justices' lawyer."— Zr'c: Journal. 
 
 " We can thoroughly recommend the volume to magistrates."— Zair Times. 
 LAND TAX — Bourdin's Land Tax. — An Exposition of the 
 Land Tax ; its Assessment and Collection, with a statement of the 
 rights conferred by the Redemption Acts. By MARK A. BOUR- 
 DIN, of the Inland Revenue Office, Somerset House (late Registrar 
 of Land Tax). Second Edition. Crown 8vo. 1870. is. 
 
 LANDLORD AND TENANT.— Woodfall's La^Ar of Landlord 
 and Tenant. — A Practical Treatise on the Law of Landlord 
 and Tenant, with a full Collection of Precedents and Forms of 
 Procedure. Eleventh Edition. Containing an Abstract of Leading 
 Propositions, and Tables of certain Customs of the Country. By 
 J. M. LELY, of the Inner Temple, Esq., Barrister-at-Iiaw. Royal 
 
 8vo. 1877. ^ . y- 1^«- 
 
 "Tie editor has expended elaborate industry and fystematic ability in makmg the 
 
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 LAW, GUIDE TO.— A Guide to the Law: for General Lse. 
 
 Bv a Barrister. Twenty-third Edition. Crown 8vo. 1880. 
 
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 List of Sheriffs and Agents, London Commissioners to Administer 
 Oaths in the Supreme Court of Judicature in England, Conveyan- 
 cers Practising in England under Certificates obtained in Scotland, 
 &c., &c., and a variety of other useful matters so far as relates to 
 Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors and 
 Notaries. CompUed by WILLIAM HENRY COUSINS, of the 
 Inland Revenue Office, Somerset House, Registrar of Stamped Cer- 
 tificates, and of Joint Stock Companies, Published annually. By 
 Authority. 1880. {Net cash 9s.) lOs. ed. 
 
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 LAW REPORTS. — A large Stock of second-hand Reports. Estimates 
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 LAWYER'S COMPANION.— FicZe "Diary." 
 
 LEADING CASES. — Haynes' Student's Leading Cases. 
 Being some of the Principal Decisions of the Courts in Constitutional 
 Law, Common Law, Conveyancing and Equity, Probate, Divorce, 
 Bankruptcy, and Criminal Law. With Notes for the use of Students. 
 By JOHN F. HAYNES, LL.D., Author of "The Practice of the 
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 Statutes," &c. Demy 8vo. 1878. 16s. 
 
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 " Will |)rove of great utility, not only t > Students, but Practitioners. The Notes are 
 
 clear, pointed and (.■oncis2."—ia!!) 7i/)i<;x. 
 
 " We think that this book will supply a want .... the book is smgularly well 
 
 arranged for refereuae." —Law Journal. 
 
 Shirley's Leading Cases made Easy. A Selection 
 of Leading Cases in the Common Law. By W. SHIRLEY SHIR- 
 LEY, M.A., Esq., Barrister-at-Law, North-Eastern Circuit. Demy 
 Svo. 1880. 14s. 
 
 " The selection is very largo, though all are distinctly 'leading cases," and the notes 
 arc by no means the least meritorious part of the work."— ifcr Jovrwil, April 24, 1880. 
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 LEXICON.— FifZc "Dictionary." 
 
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 and Museums and Literary and Scieiitific 
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 LICENSING.— Lely and Foulkes' Licensing Acts, 
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 Sale of Liquors by Retail and the INIanagement of Licensed Houses ; 
 with Notes to the Acts, a Summary of the Law, and an Appendix 
 of Forms. Second Edition. By J. M. LELY and W. D. I. 
 FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. 
 " The notes are sensible and to the point, and give evidence both of care and know- 
 ledge of the sxihiect." —Solicitors' Journal. 
 LIENS.— Cavanagh.— Fic/e "Money Securities." 
 LIFE ASSURANCE.— Scratchleys Decisions in Life As- 
 surance Law, collated alphabetically according to the point 
 involved ; with the Statutes. Revised Edition. By ARTHUR 
 SCRATCHLEY, M.A.. Barrister-at-Law. Demy 8vo. 1878. 5s, 
 LOCKE K'NG'S ACTS.— Cavanagh.-Fif/e "Money Securities." 
 LORD MAYOR'S COURT PRACTICE.— Candy.— Firfe "Mayor's 
 
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 LUNACY.— Elmer's Practice in Lunacy.— The Practice in 
 Lunacy under Commissions and Inquisitions, with Notes of Cases 
 and Recent Decisions, the Statutes and General Orders, Forms and 
 Costs of Proceedings in Lunacy, an Index and Schedule of Cases. 
 Sixth Edition. By JOSEPH ELMER, of the Office of the 
 Masters in Lunacy. Svo. 1877. 21s. 
 
 MAGISTERIAL LAW.— Burn.— Ftrfe " Justice of the Peace." 
 Leeming and Cross. — Vide " Quarter Sessions." 
 Pritchard. — Vide " Quarter Sessions." 
 Stone. — Vide " Petty Sessions." 
 Wigram. — Vide "Justice of the Peace." 
 
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 22 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 MANDAMUS. — Tapping on Mandamus. — The Law and 
 Practice of the High Prerogative Writ of Mandamus as it obtains 
 both in England and Ireland. Royal 8vo. 1848. Xet, 11. Is, 
 
 MARITI ME COLLISION. -Lowndes.—Marsden.— nc?e "Col- 
 lision." 
 MAYOR'S COURT PRACTICE. — Candy's Mayor's Court 
 Practice.— The Juiisdiction, Process, Practice, and Mode of Plead- 
 ing in Ordinary Actions in the Mayor's Court, London (commonly called 
 the "Lord Mayor's Court"). Founded on Brandon, By GEORGE 
 CANDY, Esq., Barrister-at-Law. Demy 8vo. 1879, 14s, 
 
 "The 'ordiuary' practice of the Court is dealt with in its natural order, and is 
 Bimply and clearly stated." — Zat'- Journal. 
 MERCANTILE LAW.— Boyd,— FkZc "Shipping," 
 Russell, — Vide "Agency." 
 
 Smith's Compendium of Mercantile Law. — Ninth 
 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 
 one of Her Majesty's Counsel. Royal 8vo. 1877. 1/. 18s. 
 
 "We can safely say that, to the practising Solicitor, few books will be found more 
 
 useful than the ninth edition of ' Smith's Mercantile Law.'"— Late Magazine. 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritii-ne La^A^.— With Notes. ByO. D.TUDOR, 
 Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. IZ. 18s. 
 
 METROPOLIS BUILDING ACTS--Woolrych's Metropolis 
 Building Acts, with Notes, Explanatory of the Sections and 
 of the Architectural Terms contained therein. Second Edition. By 
 NOEL H. PATERSON, M.A., Esq., Barrister-at-Law. 12mo. 
 1877. 8s. 6d. 
 
 MINES.— Rogers' La^Ar relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines, 
 Second Edition Enlarged. By ARUNDEL ROGERS, Esq., 
 Judge of County Courts. 8vo. 1876. IZ. lis. 6rf, 
 
 " The volume will prove invaluable as a vrork of legal reference." — Tlie Mining Jounial. 
 
 MONEY SECURITIES.— Cavanagh's La\v of Money Secu- 
 rities. — In Three Books. I. Personal Securities. II. Securities 
 on Property. III. Miscellaneous; with an Appendix containing the 
 Crossed Cheques Act, 1876, The Factors Acts, 1823 to 1877, Locke 
 King's, and its Amending Acts, and the Bills of Sale Act, 1878. By 
 CHRISTOPHER CAVANAGH,B.A.,LL,B. (Lond.), of the Middle 
 Temple, Esq., Barrister-at-Law. In 1 vol. Demy 8vo. 1879. 21s. 
 "An admirable synopsis of the whole law and practice with regard to securities 
 
 of every sort We desii'O to accord it all praise for its completeness 
 
 and general accuracy ; we can honestly say there is not a slovenly sentence from 
 beginning to end of it, or a single case omitted which has any material bearing on 
 the snhiect."— Saturday Bn-ictr, May •22nd, ISSO. 
 
 "We know of uo work which embraces so much that is of cvery-day importance, nor 
 do we know of any author who shows more fan iliarity with his subject. The book is 
 one which we shall certainly keep near at hatd, and we believe that it will prove a 
 decided acquisition to tne practitioner."— Lnui Times. 
 
 "The author has the gift of a pleasant style; there are abundant and con-cct 
 references to decisions of a recent date. An appendix, in which is embodied the 
 full text of several impoi-tant statutes, adds to the utility of the work as a book of 
 reference ; and there is a good index." — Solicitors' Journal. 
 
 MORTGAGE.- Coote's Treatise on the La^A/^ of Mort- 
 gage. — Fourth Edition. Thoroughly revised. By WILLIAM 
 WYLLYS MACKESON, Esq., one of Her [Majesty's Counsel. 
 
 {Ill the pj-ess.) 
 
 MORTMAIN. — Ra^/vlinson's Notes on the Mortmain 
 Acts ; shewing their operation on Gifts, Devises and Bequests for 
 Charitable Uses. By JAMES RAWLINSON, Solicitor. Demy Svo. 
 1877. Interleaved. Net, 2s. 6c£. 
 
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 NAVY.— Thring's Criminal L■a^A/■ of the Navy, with an 
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 the Rules of Evidence, and an Appendix comprising the Naval 
 Discipline Act and Practical Fonns. Second Edition. By 
 THEODORE THRING, of the Middle Temple, Barrister-at-Law, 
 late Commissioner of Bankruptcy at Liverpool, and C. E. GIFFORD, 
 Assistant-Paymaster, Royal Navy. 12mo. 1877. 12s. 6d. 
 
 "Iq the new edition," the procedure, naval regulations, forms, and all matters con- 
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 Mr. Gifford, so tliac the work is in every way useful, complete, and up to date." — Naval 
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 NEGLIGENCE — Smith's Treatise on the Law of 
 
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 Temple, Esq., Barrister-at-Law, Author of " The Law of Landlord 
 
 and Tenant," Editor of "Roscoe's Criminal Evidence." Demy 8vo. 
 
 1880. lOi'- 6(?. 
 
 NISI PRIUS.— Roscoe's Digest of the Law of Evidence 
 
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 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1879.2?. 
 
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 Law Magazine. „ , ^ « t^t • • 
 
 Selwyn's Abridgment of the Law of Nisi 
 Pl^i us.— Thirteenth Edition. By DAVID KEANE, Q.C., 
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 NOTARY.— Brooke's Treatise on the Office and Prac- 
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 NUISANCES.— FitzGerald.— Fide "PubUc Health." 
 OATHS.— Braithwaite's Oaths in the Supreme Court 
 of Judicature. — A Manual for the use of Commissioners to 
 Administer Oaths in the Supreme Court of Judicature in England. 
 Part I. containing practical information respecting their Appoint- 
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 PAKTITION.-Foster.— I'kZe "Real Estate." 
 
 PARTNERSHIP.— Pollock's Digest of the Law of Part- 
 
 nersliip. By FREDERICK POLLOCK, of Lincoln's Inn, 
 
 Esq., Barrister-at-Law. Author of " Principles of Contract at Law 
 
 and in Equity." Demy 8vo. 1877. 8s. 6d. 
 
 *»* The object of this work is to give the substance of the Law 
 
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 "Of the execution of the work, we can speak in terms of the highest praise. The 
 
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 with those of Sir James Stephen." — Law Mo.gazine. 
 
 " Mr. Pollock's work appears eminently satisfactory . . . the book is praiseworthy 
 in design, scholarly and complete in execution."— Saturday Review. 
 
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 24 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 PATENTS. — Hindmarch's Treatise on the Law rela- 
 ting to Patents.— 8vo. 1846. IZ. Is. 
 Johnson's Patentees' Manual; being a Treatise 
 on the Law and Practice of Letters Patent, 
 especially intended for the use of Patentees 
 and Inventors.— By JAMES JOHNSON, Barrister at Law. 
 and J. H. JOHNSON, Solicitor and Patent Agent. Fourth Edition. 
 Thoroughly revised and much enlarged. Demy Svo. 1879. 10s. 6d. 
 " A very excellent manual."- Zair Times, February 8. 1879. 
 
 " Tbe authors have not only :i kn(\vlPclgeof the law, but of the working' of tbe law. Be- 
 sides the table (if cases theie is a copious index tosubjectf..' — Lnw Journal, March 1, 1879. 
 
 Thompson's Handbook of Patent Law of all 
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 C.E., Head of the International Patent Office, Liverpool. 12mo. 
 1878. Net 2s. 6d. 
 
 PERSONAL PROPERTY.— Smith.— F(V/e " Real Property." 
 
 PETITIONS.— Palmer.— Pu/d " Conveyancing." 
 Rogers. — Vide "Elections." 
 
 PETTY SESSIONS.— Stone's Practice for Justices of 
 the Peace, .Justices' Clerks and Solicitors at Petty and Special 
 Sessions, in Summary Matters and Indictable Offences, with a List 
 of Sttmmary Convictions .and of Matters not Criminal. With Forms. 
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 POOR LAW. — Davis' Treatise on the Poor Laws.— Being 
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 PRINCIPAL AND AGENT. —Petgrave's Principal and 
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 PRIVY COUNCIL. — Finlason's History, Constitution, 
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 —Law Times. 
 
 Haynes. — Vide " Leading Cases." 
 
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 PUBLIC HEALTH.— Chambers' Digest of the Law re- 
 lating to Public Health and Local Govern- 
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 documents ; precedents of By-laws and Regulations. The Statutes 
 in full. A Table of Offences and Punishments, and a Copious 
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 *»* The Supplement may be had separately, price 9s. 
 
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 1876. i;. Is. 
 
 " A copious and well-executed analytical index completes the work which we can 
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 says, has necessarily, for some time past, devoted attention to the law relating to public 
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 PUBLIC MEETINGS.— Chambers' Handbook for Public 
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 QUARTER SESSIONS.— Leeming & Cross's General and 
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 RAILWAYS.— Lely's Railway and Canal Traffic Act, 
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 26 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 RATES AND RATING.— Castle's Practical Treatise on 
 
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 "Mr. Castle's book is a correct, exhaustive, clear and concise view of the law." — 
 
 La7'! Times, July 5, 1h79. 
 
 "The book is a useful assistant in a perplexed branch of Law." — Law Journal, 
 
 Chamber's Law relating to Rates and Rating ; 
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 Local Authorities, and their Officers. Being the Statutes in full 
 and brief Notes of 550 Cases. By G. F. CHAMBERS, Esq., 
 Barrister-at-Law. Imp. 8vo. 1878. 12s. 
 
 REAL ESTATE. — Foster's Law of Joint Ownership 
 
 and Partition of Real Estate. By EDWARD JOHN" 
 
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 1878. 10s. 6d. 
 
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 previous legislation, will be of considerable value." — Law Timts. 
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 and the Settled Estates Act, are Ukely to be useful to the practitioner ... so far 
 
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 and the work wiU be found exceedingly handy for reference."- Solicitors' Journal. 
 " Mr. Greenwood's hook gives such of the provisions of the amended statutes as are 
 
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 the effect of the recent legislation."— iaic Journal. 
 
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 MARTIN LEAKE, Barrister-at-Law. 8vo. 1874. 11. 2s. 
 
 * * The above forms a complete Introduction to the Study of the Law of Real Property. 
 Shear-wood's Real Property. — A Concise Abridgment 
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 Designed to facilitate the subject for Students preparing for 
 Examination. By JOSEPH A. SHEARWOOD, of Lincoln's Inn, 
 Esq., Barrister-at-Law. Demy 8vo. 1878. 6s. 6d. 
 
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 is based."— Zaw Journal. 
 
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 Smith's Real and Personal Property.— A Com- 
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 connected with Conveyancing. Designed as a second book for 
 Students, and as a digest of the most tiseful learning for Practi- 
 tioners. By JOSIAH W.SMITH, B.C.L., Q.C. Fifth Edition. 
 2 vols. Demy 8vo. 1877. 21. 2s. 
 
 ' ' He has given to the student a book which he may read over and over again with profit 
 an ' nleasure."— iaw! Timet. 
 
 •• iiie work before us Mill, we think, be found of very great service to the practitioner." 
 —Solicitor^ Journal. 
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 119, CHANCERY LANE, LONDON, W.C. 27 
 
 REGISTRATION.— Bro-wne's(G.Lathom)Parliamentary 
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 REGISTRATION CASES.— Hop>A;-ood and Coltman's 
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 RIVERS POLLUTION PREVENTION.— FitzGerald's Rivers 
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 ROMAN LAW.— Cumin.— Fide "Civil." 
 
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 Continued to the present time by the Right Hon. Sir EDWARD 
 VAUGHAN WILLIAMS. 2 vols. Royal 8vo. 1871. 21. 10s. 
 SETTLED ESTATES.— Middleton's Settled Estates Act, 
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 Second Edition. By JAMES W. MIDDLETON, B.A., of Lincohi's 
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 "A complete work as a practical edition of tlie Settled Estates Act, 1877, and 'will be 
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 SHERIFF LAW Churchill's Law of the Office and 
 
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 SHIPPING, and vide " Admiralty." 
 
 Boyd's Merchant Shipping Laws ; being a Consolida- 
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 1876, inclusive; with Notes of all the leading English and American 
 Cases on the subjects affected by Legislation, and an Appendix 
 containing the New Rules issued in October, 1876 ; forming a com- 
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 28 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 SOLICITORS.— CoFdery's La-w relating to Solicitors 
 
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 Temple, Esq., Barrister-at-Law. Demy 8vo. 1878, 14s. 
 
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 " The chapters on liability of solicitora and on lien may be selected as two of the bes 
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 SOLICITORS' GUIDES.— FM?e "Examination Guides." 
 STAMP LAWS.— Tilsley's Treatise on the Stamp 
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 Chitty's Collection of Statutes, with Supple- 
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 Vol. 1. — Henry III. to James II., 
 
 „ 2.— Will. & Mary to 10 Geo. IIL, 
 
 „ 3.-11 Geo. III. to 41 Geo. III., 
 
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 „ 5.-52 Geo. III. to 4 Geo. IV., 
 
 „ 6.-5 Geo. IV. to 1 & 2 Will. IV., 
 
 „ 7.-2 & 3 Will IV. to 6 & 7 Will. IV., 
 
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 119, CHANCERY LANE, LONDON, W.C. 29 
 
 ST ATyJTES.—Co'Uinued. 
 
 ♦Chronological Table of and Index to the Statutes 
 
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 1879. 14«. 
 
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 Head's Statutes by Heart; being a System of Memoria 
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 By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's 
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